Laurel v. United States of America Brief Amicus Curiae

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
No. 74-3746

E. J. LAUREL,
Plaintiff-Appellant

- v-
UNITED STATES OF AMERICA, et al.f 

Defendants-Appellees

On Appeal From The United States District Court 
For The Southern District of Texas

BRIEF FOR N.A.A.C.P. LEGAL DEFENSE AND EDUCATIONAL FUND, INC,, AS AMICUS CURIAE

JACK GREENBERG JAMES M. NABRIT, III CHARLES STEPHEN RALSTON
*  MORRIS J. HALLER

BARRY L. GOLDSTEIN—  10 Columbus CircleNew York, New York 10010
Attorneys for the N.A.A.C.P, 
Defense and Educational Fund,

Lecju 1 
Inc.



TABLE Or CONTENTS P age

Table of Contents......................................i
Table of Authorities.................... .......... ^
Interest of Amicus Curiae........................ 1
Introduction..................................... 3
ARGUMENT

I. §717 OF TITLE VII, ON ITS FACE, REQUIRES A TRIAL DE NOVO IN CIVIL ACTIONS BROUGHT 
PURSUANT TO ITS PROVISIONS.............  7

II. §717 OF TITLE VII, AS A MATTER OFLEGISLATIVE HISTORY, REQUIRES A TRIAL 
DE NOVO IN CIVIL ACTIONS BROUGHT
PURSUANT TO ITS PROVISIONS.............  15

Dissatisfaction With Administrative Remedies..... 15
Intent To Accord Federal Employees The Same

Enforcement Rights As Private Employees....... 28
III. THE STATUTORY PURPOSE OF §717 REQUIRES 

A TRIAL DE NOVO IN WHICH LITTLE WEIGHT SHOULD BE GIVEN THE RECORD DEVELOPED DURING THE CSC DISCRIMINATION COMPLAINT 
PROCESS................................ 33

Judicial Precedent and §717 Statutory Purpose.... 33
Part 713 Regulations On Their Face...............  39
Administration Of The Regulations................  42

IV. PERSUASIVE CASELAW SUPPORTS THE REQUIRE­
MENT OF A TRIAL DE NOVO IN FEDERAL 
EMPLOYMENT CASES BROUGHT UNDER TITLE 
VII................................... 54

V. THE RIGHT TO A TRIAL DE NOVO IS NOT WAIVED 
WHEN THE EMPLOYEE ELECTS TO HAVE A FINAL 
AGENCY DECISION WITHOUT UNDERGOING AN ADMINISTRATIVE HEARING, AS SPECIFICALLY 
PROVIDED BY §717 (c).................... 59

CONCLUSION....................................... 63

i



TABLE OF AUTHORITIES

Cases
Aetna Ins. Co. v. Kennedy, 301 U.S. 389 (1937)
Alexander v. Gnrdner-Denver Co., 39 L.Ed.2d

147 (1974).............................

Beverly v. Lone Star Lead Const. Corp., 437
F.2d 1136 (5th Cir. 1971)..................

Bolling v. Sharpe, 347 U.S. 497 (1954)...........

Bowers v. Campbell, 8 EPD 51̂ 5̂2 (9th Cir. 1974)...

Calder v.Bull, 3 Dali. 386 (1789)............... .

Carreathcrs v. Alexander, 7 EPD f9379 (D. Colo.
(1974).....................................

Congress of Racial Equality v. Commissioners, 
270 F.Supp. 537 (D. Md. 1967).........

Engle v. Davenport, 271 U.S. 33 (1925)

Fekete v. United States Steel Corp., 424 F.2d 
331 (3rd Cir. 1970)...................

Flowers v. Local 6, Laborers International Union 
of North America, 431 F.2d 205 (7th 
Cir. 1970)...............................

PAGE

61

4, 34,40,48,55,59,60

2,12,28,29 

7

55

14

55

10, 11 

13

12.28.29

12.28.29

Griffin v. U.S. Postal Service, 7 EPD [̂9133 
(M.D. Fla. 1973).................... 54,55, 57



Cases
I

Griggs v. Duke Power Co., 401 U.S. 424 (1971)..... 549

Gnotta v. United States, 415 F.2d 1271 (8th Cir. 1969) cert, denied 397 U.S. 934
(1970)..................................... 10*11

Guilday v. U.S. Justice Dept, 43 LW 2195 (D. Del.
October 22, 1974)..........................  56,58

Hackley v. Johnson, 360 F.Supp. 1247 (D.D.C.
1973)....................................  31

Harris v. Nixon, 325 F.Supp. 28 (D. Colo.
1971)..................................... 10

Hassett v. Welch, 303 U.S. 303 (1933)..... ...... 13

Hodges v. Easton, 106 U.S. 408 (1882)........... 61

Hurd v. Hodge, 334 U.S. 24 (1948)............... 7

Interstate Consol. Street R. Co. v. Massachusetts,
207 U.S. 79 (1907).........................  13

Jackson v. U.S. Civil Service Comm'n., 7 EPD^9134 (S.D. Tex. 1973)....................  5456,->7

Jenkins v. United Gas Corporation, 400 F.2d 28
(5th Cir. 1968).........................  2 * 5

Johnson v. Georgia Highway Express, 417 F.2d 1122
(5th Cir. 1969)...............•.......... 2

Johnson v. U.S. Postat Service, 497 F.2d 12
(5th Cir. 1974)...........................  54

TABLE OF AUTHORITIES [Cont'd.]

Page

iii



TABLE OF CONTENTSfConi'd. 1
I jPago

Johnson v. Zerbst, 304 U.S. 458 (1938)........... 61

Kendall v. United States, 12 Pet. 524, (1838).... 13

King v. Georgia Power Co., (259 F.Supp.
943 (N.D. Ga. 1968)............'-- '........  13

McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973)................................. 2, 4, 12,34, 50,55,59,60

Miller v. Amusement Enterprises, Inc., 426 F.2d
534 n. 14 (5th Cir. 1970)....................  1

Morrow v. Crisler, 470 F.2d 960 (5th Cir. 1973) 
aff'd en banc, 491 F.2d 1053 (5th Cir.
1974)....................................... 5

Morton v. Mancari, 41 L.Ed.2d 290 (1974)...........  15, 17, 37,56

Newman v. Piggie Park Enterprises, 390 U.S.
400 (1968).................................. 4,

Oatis v. Crown-Zellerbach Corp., 398 F.2d 496
(5th Cir. 1968)............................. 53

Ohio Bell Telephone Co. v. Public Utilities
Comm. 301 U.S. 292 (1937)..................  61

Reynolds v. Wise, 375 F.Supp. 145 (N.D.Tex. 1974)................................. 54, 5j,57
Robinson v. Klassen, No. LR-73-C-301 (E.D.

Ark. October 3, 1974)...................... 56

^ 'O•



TABLE OF CONTENTS [Cont'd.]

Paqe

Robinson v. Lorillard Corp., 444 F.2d 791
(4th Cir. 1971) cert, dismissed 404 U S 1006 (1971).... 1? 20, 29

Phillips v. Martin Marietta Corp.. 400 U 9 542 (1971)........ 2

Smith v. Universal Services, Inc., 454 f 2d 154 (5th Cir. 1972).... 12,28,29,34
United States v. H.K. Porter Company, N.D. Ala. 1968, 226 F.Supp. 40.... 13

United States v. Standard Brewery 251 U.S. 210 (1920)....... 14

United States v. Tappan, 11 Wheat. 419 (1826) 10

Wisconsin Central R.co. v. United States 164 U.S. 190 (1896)..... 9

v



STATUTES

^ N>- lJ

Paqe

5 U.S.C. §702 .............................. 11
5 U.S.C. §706.............................. 11,56
42 U.S.C. §2000e-5......................... 9, 10,12,13, 15,28,29, 

31, 59
42 U.S.C. §2000e-16....................... passim

EXECUTIVE ORDERS
E.O. 11246............................... 7,10
E.O. 11375............................... 7,10
E.O. 11478..................... .......... 7,10

REGULATIONS
5 C.F.R. §713.213........................ 39
5 C.F.R. §713.215........................ 39
5 C.F.R. §713.216........................ 40
5 C.F.R. §713.217........................ 40
5 C.F.R. §713.218........................ 40,41
5 C.F.R. §713.221........................ 41
5 C.F.R. §713.283........................ 41

VI

r



OTHER AUTHORITIES

M. Brewer, Behind the Promises: Equal EmploymentOpportunity in the Federal Government (Public 
Interest Research Group 1972)...............

Brief for Appellees, Hackley v. Johnson,No. 73-2072 (D.C. Cir. 1974)................
Conference Rep. No. 92-681, on H.R. 1746,92nd Cong., 2d Sess. (1971).................

119 Cong. Rec. §1219........................
Hearings on H.R. 1746 Before the General Subcomm.on Labor of the House Comm, on Education and 

Labor, 92d Cong., 1st Sess. (1971)..........

Hearings on H.R. 13517 Before the General Subcomm. on Labor of the House Comm, on Education and Labor 91st Cong., 1st. 
& 2d. Sess (1970).....................

Hearings on S.2453, Before the Subco.im. on Labor of the Senate Comm, on Labor and Public 
Welfare, 91st. Cong., 1st Sess. (1969)---

Hearings on S.2515, S.2617 & H.R. 1746 Beforethe Subcomm. on Labor of the Senate Comm, 
on Labor and Public Welfare, 92d Cong., 
1st. Sess. (1971)........................

H.R. Rep. No. 92-238, on H.R. 1746, 92d
Cong., 1st Sess (1971)...................

Page

42,43,52

62

29
29

21,23,26, 
27, 32

16,21,22,25,
27,32

16,17,31

21,22,26,27,32

17,22,28,35, 
37,43,51

I. Kator, Third Generation Equal Employment Opportunity, Civil Service Journal 
(July-Scptember 1972)...............

Letter from Robert E. Hampton, Chairman, CSC, by Arthur F. Sampson. Acting Administrator, GSA, of June 18, 1973.
Note, Racial Discrimination in the Federal 

Civil Service 38 Geo. Wash. L. Rev.
265 (1969)......................... .

vii



OTHER AUTHORITIES [Cont'd.]

Sape & Hart, Title VTI Reconsidered: The Equal Opportunity Act of 1972, 40 Geo. Wash.
L. Rev. 824 (1972).......................... 11

Senate Rep. No. 92-415, On S. 2515, 92d Cong.,1st Sess. (1971)............................  8,19,22,24,28,35,38,51
Staff of Subcomm. On Labor of the Senate Comm.on Labor and Public Welfare, 92d Cong., 2d Sess., Legialative History of the Equal 

Employment Opportunity Act of 1972(Comm. Print 1972))Legislative Hisotyr].... passim
U.S. Civil Service Conn'n. BAR Annual Report ot the Commissioners for FY 1974,

/Attachment 2............................... 44
U.S. Civil Service Conn'n. Discrimination Complaint Examiner's Handbook (April1972)............................... .....  42,44,46,48,49, 50
U.S. Civil Service Conn'n. DiscriminationComplaint Procedures................. 81
U.S. Civil Service Conn'n., FPM Letter

No. 713-17, Attachment 1.................. 39
U.S. Civil Service Conn'n., InvestigatingComplaints of Discrimination in Federal

Employment (Rev. October 1971)...........  42,45,46,48
U.S. Civil Service Comm'n., Matter of Jones(BAR decision of October 4, 1974).......... 50
U.S. Civil Service Comm'n., Memorandum on Govern­ment Equal Employment Opportunity Counseling 

and Discrimination Complaint Activity, Fiscal 
Year 1972 thru Fiscal Year 1974
(August 20, 1974)......................... 43

U.S. Civil Service Comm’n., Memorandum on Precom­plaint Counseling and Discrimination Com­
plaint Activity During Fiscal Year 1974 
(August 20, 1974)....................... . 43

Page

viii



OTHER AUTHORITIES [Cont'd.]
Page;

U.S. Commission on Civil Rights, The FederalCivil Rights Enforcement Effort -
A Reassessment (1970)......................  40

U.S. Commission on Civil Rights, The Federal Civil Rights Enforcement Effort -
A Reassessment (1973)......................  8,47

ix



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
NO. 74-3746

E. J. LAUREL,
Plaintiff-Appellant,
—v-

UNITED STATES OF AMERICA,' et al . ,
Defendants-Appellees.

On Appeal From The United States District Court For The Southern District of Texas

BRIEF FOR N.A.A.C.P. LEGAL DEFENSE AND EDUCATIONAL FUND, INC., AS AMICUS CURIAE*

Interest of Amicus Curiae
The NAACP Legal Defense and Educational Fund, Inc., 

has for many years been engaged in civil rights litigation 
in this Court and in district courts throughout the Fifth 
Circuit. See Miller v. Amusement Enterprises, Inc., 426 
F.2d 534, 539, n.14 (5th Cir. 1970). Following the enactment 
of Title VII of the Civil Rights Act of 1964,attorneys 
associated with the Legal Defense Fund have participated in

^Counsel for both parties have consented to the filing 
of this Brief, pursuant to F.R.A.P., Rule 29.



many of the leading cases decided by this Court and the 
Supreme Court that have resulted in Title VII being given 
a broad and expansive interpretation, both procedurally and 
substantively, so that the Act could accomplish the goal of 
Congress and serve as an effective weapon against employment 
discrimination. See, e.g., Johnson v. Georgia Highway Express,
417 F.2d 1122 (5th Cir. 1969); Jenkins v. United Gas Corp­
oration, 400 F.2d 28 (5th Cir. 1968); Beverly v. Lone Star 
Lead Const. Corp., 437 F.2d 1136 (5th Cir. 1971); Phillips 
y. Martin Marietta Corp., 400 U.S. 542 (1971); McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973).

When the 1972 amendments to Title VII that made the 
federal government subject to the Act's provisions were enacted, 
the Legal Defense Fund and cooperating attorneys became in­
volved in cases against the federal government nationwide.
In this Circuit alone the Fund has litigation pending in dis­
trict courts in Alabama, Georgia, Florida, and Texas. Agencies 
being sued include, inter alia, the Army, Navy, and Air Force, 
the Post Office, and the National Aeronautic and Space Administration 

In every one of our cases, and, we believe, in every cosc 
brought against it nationwide, the government has consistently 
raised technical and narrow objections whose purpose is so to 
restrict the scope of the case as to make it impossible for the 
federal courts to review government employment policies and to 
grant the kind of relief the United States itself has con-

-2

r



sistently maintained should be afforded against private and 
state and local government employers. This case involves only 
one of the government's arguments —  that a government employee 
is not entitled to a trial de novo in a Title VII action. The 
Court should be aware, however, of this contention s re­
lationship to the other principle argument consistently made 
by the government —  that federal employees cannot maintain
a class actiai under Title VII.

The result of the acceptance by the federal courts of 
these contentions would be to reduce the federal courts to a 
rubber stamp; their role would merely be to review an ad­
ministrative "record" compiled by agents of the defendant 
agency concerning what happened to a single employee. No broad 
independent inquiry into or assessment of the challenged 
employment practices would ever be conducted. The government, 
the largest single employer in the nation, would be immune from 
the same judicial scrutiny to which all other employers are 
subject. For the reasons set out below, amicus curiae con­
tends that such a result would be unwarranted and unjust.
The grant of summary judgment should be reversed, and plaintiff 
should be permitted to go forward and litigate his claim
of discrimination on the merits.

Introduction
The kind of hearing the federal courts provide employment 

discrimination complaints is what principally determines the 
quality of judicial enforcement of Title VII, a "policy Con-

-3-



Newman v. Piggiegress considered of the highest priority."
Park Enterprises. 390 U.S. 400, 402 (1968) cited in Alexander v.
Gardner-Donvor Co., 39 L.Ed.2d 147, 158 (1974). The question
has been resolved in favor of trial de novo in private and state 
or local government employment discrimination litigation in a 
variety of contexts; the same reasons require a similar resolu­
tion in federal employment discrimination litigation. The 
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
799 (1973), stated that “court actions under Title VII are de_ 
novo proceedings" notwithstanding that the EEOC had rendered a 
finding of a no reasonable cause. Similarly in Alexander v. 
Gardner-Denver Co., supra, the Court held that a trial do novo 
is not foreclosed by a prior arbitral decision of no reasonable 
cause. The common thread of Title VII law is that it is imper­
missible "to engraft on the statute a requirement which may in­
hibit the review of claims of employment discrimination."
McDonnell Douglas Corp. v. Green, supra, 411 U.S. at 798-99.

"[C]ourts should ever be mindful that Congress, in en­
acting Title VII, thought it necessary to provide a judicial
forum for the ultimate resolution of discriminatory employment 
claims. It is the duty of courts to assure the full availability
of this forum." Alexander v. Gardner-Denver Co., supra, 39 L.Ed.2d
at 165 no.21. Employment discrimination prohibited by Title VII 
quite clearly raises different issues than ordinary federal 
employee adverse actions, issues the federal courts are best 
suited to decide. "The objective of Congress in the enactment



of Title VII . • • was to achieve equality of employment oppor
tunities and remove barriers that have operated in the past to 
favor an identifiable group of white employees over other 
employees." Griggs v. Duke Power Co., 401 U.S. 424, 429-30
(1971). In short, federal employees are entitled to no more and 
no less than what employees of a private company, see, e_._cj. < 
Johnson v. Georgia Highway Express, 417 F.2d 1122 (5 th Cir^ 1969),
or a state or local governmental entity, see, e.g., Morrow v. 
Crisler, 479 F.2d 960 (5th Cir. 1973), aff'd on banc, 491 F.2d 
1053 (5th Cir. 1974), are entitled to under Title VII and the 
Constitution.

In Part I we show that the statutory language of §717 of 
Title VII of the Civil Rights Act of 1964, added by the Equal 
Employment Opportunity Act of 1972, 42 U.S.C. §2000 (e) -16(a), 
unquestionably requires a trial de novo of claims of racial dis­
crimination in federal employment. Because the face of the 
statute is unequivocal, canons of statutory construction dictate 
that statutory analysis alone settles the question. Nevertheless 
in Part II we show that legislative history, without contradition 
also makes clear what the statute in fact says, that a trial 
de. novo is required. The question of what standard of scrutiny 
the federal district courts may use in adjudicating federal 
employ non t discrimination was settled by Congress in 1972 . We 
demonstrate in Part III, however, that present CSC procedures 

federal employment discrimination complaints infor processing



light of the statutory purpose to eliminate racial discrimi­
nation from federal employment also dictate a trial dja novo. 
Persuasive caselaw, as set forth in Part IV, is in agreement 
with this reading of the statute. It follows, as we show in 
Part V, that federal employees do not waive their right to a 
plenary judicial trial on the merits by electing an agency 
decision without an administrative hearing.

-6-

r



A R G U M K N T

I .

6 717 OF TITLE VII, ON ITS FACE, REQUIRES 
1 TRIALDE NOVO IN CIVIL ACTIONS BROUGHT 
PURSUANT TO ITS PROVISIONS.

The declaration of purpose and policy in S 717<n' that'
"All personnel actions affecting employees or applicants . . .
in executive agencies . . .  be made free from any discrimination
based on race, color, religion, sex or national origin" merely
reiterates prior declarations in E.o. 11246, § 101 of September
24, 1965, E.O. 11375. § 101 of October 13, 1967 and E.O. 1147S
§ 1 of August 8, 1967. It has of course been the law since
Hurd v. Hodge, 334 U.S. 24 (1948) and Bolling v. Sharpe, 347

civil rights legislation and 
U.S. 497 (1954) that/the Fifth Amendment due process
clause prohibit any racial discrimination by the
federal government. Moreover, § 717(b) that spells out the
remedial, affirmative action and review‘responsibilities of
federal agencies, is similar to obligations imposed by successively
more detailed Executive Orders. Compare § 717(b) with E.O.
11478 §<$ 2 — 5. The derivative character of the non-discrimination
rights guaranteed to federal employees is indicated by § 717(e)
which states that, "Nothing contained in the Act shall relieve
any Government agency or official of its or his primary
responsibility to assure non-discrimination in employment as
required by the Constitution and statutes or of its or his
responsibilities under Executive Order 11478 relating to equal



employment opportunities in the Federal Government."
The manifestly new element in § 717 is the express 

remedial provision that an aggrieved federal employee may "file 
a civil action" naming the head of his agency as defendant without

1/

1 / The Senate report states, "The bill adds to Title VII a new 
Section 717 (Section 11 of the bill) making clear the obligation of the Federal Government to make all personnel decisions free 
from discrimination based on race, color, sex, religion or national 
origin." (emphasis added) Senate Rep. No. 92-415, on S.2515,
92d Cong., 1st Sess. at 12 (1971); Staff of Subcomm. on Laborof the Senate Comm, on Labor and Public Welfare, 92d Cong.,2d Sess., Legislative History of the Equal Employment Opportunity 
Act of 1972 at 921 (Comm. Print 1971) [Legislative History] .
See also. Legislative History at 1723 (Comment of Sen. Cranston 
that "these [717] provisions . . .in many respects only codify
requirements presently contained in Executive Oiders and the 
Constitution") 1968 (Comment of Sen. Williams).

The u . S. Commission on Civil Rights, charged with the 
legal duty of monitoring federal civil rights enforcement, 
is of the same opinion.

The new law clearly strengthens the 
position of CSC in terms of its relationship to other Federal departments and agencies.However, what it provides, with few exceptions, is nothing but an affirmation of power CSC already possessed under the previous Executive Orders 8/ —  powers which CSC heretofore chose 
to exercise in a limited manner.

8/ Actions CSC has recently taken—  such as changing the requirements for affirmative action plans and developing procedures under 
which it can assume responsibility for a 
grievance filed wi th an agency' are congruent with the authority CSC had under 
Executive Order 11478. U-S. Comm, on Civil Rights, The Federal Civil Rights Enforcement 
Effort - A Reassessment 45 (1973)

-8-



completely exhausting available administrative remedies.
§§ 717(c) and 717(d) provides that:

(c) Within thirty days of receipt of notice of final action taken by a department, 
agency, or unit referred to in subsection 717(a) 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 or order of such department, 
agency, or unit, an employee or applicant for 
employment, if aggrieved by the final disposition of his complaint, or by the failure 
to take final action on his'complaint, may file 
a civil action as provided in section 706, in 
which civil action the head of the department, 
agency, agency, or unit, as'appropriate, shall 
be the defendant.

(d) The provisions of section 706(f) 
through (k) as applicable, shall govern civil actions brought hereunder. 2/

2/ The phrase "as applicable" merely refers to those sections 
dealing with the EEOC and the Attorney General in § 706(f) - (k)
which are obviously inapplicable to civil actions against the 
federal government. This intent .is clear from the Section-By- 
Section Analysis of H. R. 1746, The Equal Employment Opportunity Act of 1972 explaining the major provisions of the 1972 Act, as 
reported from the Conference Committee which states that, "The provisions of Sections 706(f) through (k), concerning private civil actions by aggrieved persons, are made applicable to aggrieved 
Federal employees or applicants for employment." Legislative 
History at 1851. Moreover, construction of a statute rendering meaningless a reference to another statute is not favored, "the 
explicit language of the statute cannot thus be done away with." 
Wisconsin Central R. Co. v. United States, 164 U.S. 190, 202 
(1896).



None of the Executive Orders had expressly conferred such a 
right of action or specifically waived the sovereign immunity 
of the federal government, see, E.O. 1146, § 104; E.O. 11375,
§ 104; E.O. 11478, § 4. The courts had been reluctant to imply 
access to the courts, see, e.g., Gnotta v. United States, 415 
F .2d 1271, 1277-78 (8th Cir. 1969), cert, denied, 397 U.S. 934 
(1970); Congress of Racial Equality v. Commissioners, 270 F. Supp. 
537, 542 (D. Md. 1967), or permitted only limited review of the
administrative record, see, e.g., Harris v. Nixon, 325 F. Supp.
28 (D. Colo. 1971). §§ 717(c) and 717(d) redressed the prior depr
vation of any or very limited judicial review of agency disposition 
of complaints of employment discrimination, by their terms giving 
federal employees the same remedial protection as private and 
state or local government employees enjoy under provisions of 
§ 706. It should be clear that narrow construction of judicial 
scrutiny, reducing the federal courts to the role of rubber 
stamp for agency dispositions of complaints of employment 
discrimination, would nullify the only substantive change in 
the law effected by § 717. Hie long standing rule of con­
struction is that courts may not construe a statute in such a 
way that its provisions are rendered nugatory. See, e.g.,
United States v. Tappan, 11 Wheat. 419, 426 (1826).

A trial do novo is also required by express terms of the 
statute. First, § 717(c) provides that an aggrieved employee 
••may file a civil action as provided in section 706" (emphasis 
added) and § 717(d) states that, "The provisions of section 
706(f) through (k) , as applicable, shall govern civi J. _'l c! -3 
brought hereunder" (emphasis added). §§ 706(f) - (k), specifically

-10-



incorporated by §§717(c) and (717)d, speaks throughout of 
"civil actions." The specific statutory use of "civil action" 
plainly means a district court trial proceeding, not mere 
judicial review of an administrative record. Constrast the 
statutory language of § 10(a) of the Administrative Procedure

.

Act, 5 U.S.C. § 702, which describes the general right of review 
from administrative proceedings in terms of, "A person suffering 
legal wrong because of agency action, or adversely affected or 
aggrieved by agency action within the meaning of a relevant 
statute, is entitled to judicial review thereof." For the scope 
of review under the APA, see 5 U.S.C. § 706. § 717(c) is
clearly in derogation of the limited APA judicial review provisions 
which would control in the absence of specific statutory language. 2a/ 

Second, § 717 fails to draw any distinction between 
judicial scrutiny when the administrative process has not been 
initiated within 180 days, is incomplete, or is final either !
at the agency or CSC level. Only the requirement of a trial
de novo in every case no matter its administrative posture
comports with this specific right of action framework in which
employment discrimination complaints need only partially exhaust
administrative procedures before seeking review. Before enactment
of 717(c), the courts, sec, e.g., Gnotta v. United States, supra:

Harris v. Nixon, supra.Congress of Racial Equality v. Commissioner, supra,/and thc CSC, 
see, e.g., citations to specific parts of hearings, i nfra, at 
n. 6 , had considered the question of judicial review only in terms 
of review a fter final agency or CSC action. congress made clear

2a/ "Unlike review of agency actionPurSUant to section 10 of tit Procedure Act whereby the court merely determines whether an 
agency's action is supported by substantial evidence, on action by an aggrieved federal employee under the 1972 Act requires a 
trial de novo." 3ape « Hart, Title VII Reconsidered: The Equal

2
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• • .. . c flpfprence to prior- administirstiveby express provision that this deference eu v

action was no longer the law.
Third, § 706, specifically incorporated by §§ 717(c)

and 717(d), provides inter alia that private employees and state 
or local government employees may bring civil actions against 
their employer for employment discrimination. Prior to 1072, 
the federal courts had made clear that plaintiffs suing under 
§ 706 were entitled to a trial do novo. See, , Robi nson_'m
tori Hard corp., 644 F.2d 791, SCO (4th Cir. 1971), cerH. dis­
missed, 404 U.S. 1006 (1971): Beverly V. bone Star bead Con-

p 2d 1136, 1140-42 (5th Cir. 1971): Flowers struction Corp., 437 F.2d
V. local 6 laborers International Union of Port)' America.
431 F .2d 205, 206-08 (7th Cir. 1970): Fekete_v.,. United States 
Steel Corp.. 424 F.2d 331. 334-36 (3rd Cir. 1970). Smithy.
■ services. I n c , 454 F.2d 154, 157 (5th Cir. 1972),
decided before enactment, had also stated the prevailing rule 
that agency action in private employment "is not agency action 
of a quasi-judicial nature which determines the rights of the 
parties subject only to the possibility that the reviewing court: 
might conclude that the EEOC)s actions are arbitrary, capricious 
or an abuse of discretion." but "takes on the character of a 
trial do novo, completely separated from the actions of the

Employment Opportunity Act of 1972, 
(1972). The authors are, respectlv 
of Congressional Affairs, 22CC, 
General oubcomm. on Labor of the n.

1+0 Geo. Wash. L.R. 829-,857 
ely, Deputy Director, Office 
Professional Staff Member,

R. Comm, on Education and Labor
3/ These cases were cited by the Supreme Court 
poiiglnss Corp. v. Green, supra, 411 U.S. at 799 
proposi tion.

in McDonncl1- for the same

-12-



EEOC. United States v. H. K. Porter Company, N.D. Ala. 1968,
226 F. Supp. 40; King v. Georgi£L^wer_C°. [295 F. Supp. 943 
(N.D. Ga. 1960)1." §§ 717(c) and 717(d) incorporated this prior
caselaw construing the meaning of § 706.

Fourth, § 706(f)(4), specifically incorporated by §§ 717(c) 
and 717(d), authorizes the district court to appoint a special 
master if the court has not "scheduled the case for trial within one 
hundred and twenty-five days after issue has been joined" (emphasis 
added) in order to expedite Title VII adjudications. § 706 (f) (4) 
also speaks throughout of the duty of district courts "to hear_and 
Hm-nrmvine the case" (emphasis added). Moreover, § 706 (j), also 
specifically incorporated by §§ 717(c) and 717(d), provides that 
any civil action or proceeding before the district court is
"subject to appeal" under 28 U.S.C. §§ 1291, 1292.

Fifth, if Congress had intended something less than a trial do 
novo of the merits, it could readily have done so. Indeed, § 706(b) 
provides that the EEOC "shall accord substantial weight to final

4/ The Section-By-Section Analysis of H.R. 1746, The Equal 4/ The 6ecri *„nitv Act of 1972 explaining the major pro- Employment Opportunity Act ui ^ referencevisions of the 1972 Act, as reported from the Conferenc
Committee, specifically states:

In any area where the new law does not 
address itself, or in any areas where a 
specific contrary intention is not indicated, 
it was assumed that the present caselaw as 
developed by the courts would continue to 
govern1the applicability and construction of 
Title VII.

. . .-4- tqaa Furthermore, the general ruleLegislative H isto ry  at 1844 F th^ ^  tGrrns Qf a s t a tu t e
has always been that the adop as it existed at the

5 Z  ° W “ rv

etiect R.— e— :— _--•-- to m q ? ^ ;  Hassctt v. Welch,vnr.nl v. Davcnnort, 271 U.S. 33, 3« 12------ ----------
*303 U.S. 303, 314 (1938).

-13-

rr



findings and orders" of state or local deferral agencies under 
state or local fair employment practice laws. Congress thus 
made clear its intention on the face of the statute.

"IT]here is no court that has power to defeat the 
intent of the legislature, when couched in such evident and 
express words as leave no doubt whether it was the intent 
of the legislature, or no." 1 Blackstone's Commentary 91 
cited in Colder v. Bull, 3 Dali. 386 (1798). "Nothing is
better settled than that, in the construction of a law, its 
meaning must first be sought in the language employed. if that 
be plain, it is the duty of the courts to enforce the law as 
written, provided it bo within the constitutional authority 
of the legislative body which passed it." United States v. 
Standard Brewery, 251 U.S. 210, 217 (1920). No question can 
arise that federal employee civil actions to enforce equal 
employment opportunity are unconstitutional; the duty of federal 
courts pursuant to § 717(c) is therefore clear.

-14-



"\ S I  •

I I .

§ 717 OF TITLE VII, AS A MATTER OF 
LEGISLATIVE HISTORY, REQUIRES A TRIAL 
DE NOVO IN CIVIL ACTIONS BROUGHT PURSUANT gro ITS PROVISIONS .5/

The legislative history of § 717 reiterates what is 
clear from the face of the statute, that a trial do novo is 
required. Congress, first, was dissatisfied with the un- 
reviewable operation of the CSC complaint process and, second, 
accorded § 717(c) civil action plaintiffs the same right to 
invoke the jurisdiction of the federal courts as § 706

t
plaintiffs fo enforce equal employment opportunity.

Dissatisfaction With Administrative Remedies

The unanimous opinion of the Supreme Court in Morton v . 
Maneari, 41 L.Ed. 2d 290, 298 (1974) , surveying the legisla­
tive history of § 717, stated:

5/ H.R. 1746, reported out of the House Committee on Educa­tion and Labor gave the EEOC administrative jurisdiction over federal employees, § 717(b), and permitted an aggrieved 
employee to file a civil action within 30 days after final 
EEOC action, § 717(c), Legislative History at 27-28. The 
House replacement, H.R. 9247, omitted the coverage of federal employees, Legislative History at 326-32. S.21315 which tracked the provisions of H.R. 1746 was sponsored by Senator 
Williams in the Senate Committee on Labor and Public Welfare, 
Legislative History at 185-87. However, the Senate Committee 
unanimously reported out a version of S.2515 which substituted 
CSC administrative jurisdiction over federal employees, § 717(b), 
and permitted a civil action under the conditions of the present law, § 717(c), Legislative History at 407-08. The terms 
of § 717(c) were suggested by Clarence Mitchell of the NAACP and authored by Senator Cranston and Senator Dominick within the 
Senate Committee, Legislative History at 493-94, 695. The Senate Committee version of § 717(c) passed the Senate without change, Legislative History at 1788. At the conference, the House 
receded and the Senate version was accepted, Legislative History at 1819. .

-15-



o  *

The 1964 Act did not specifically outlaw employment discrimination by the federal govern 
ment. 21/ Yet the mechanism for enforc inq long-outstanding Executive Orders for bidding government discrimination had prove 
ineffective for the most pert. 22/ ™ °rc,cr toremedy this, Congress, by the 1972 Act. amended the 1964 Act and proscribed discrim­ination in most areas of federal government, 
in general, it may be said that the sub stantive anti-discrimination law embraced in 
Title VII was carried over and applied to the 
Federal Government. As stated in the House 
Report.

"To correct this entrenched discrimination 
in the Federal service, it is necessary to insure thq effective application of uniiorm, 
fair and strongly enforced policies. The present law and the proposed statute do not. permit industry and labor organizations to 
be the judges of their own conduct in the area of employment discrimination. There is 
no reason why government agencies should not 
be treated similarly." II.R. Rep. No. 92-238, 
on H.R. 1746, 92d Cong., 1st Scss. 24 2a (1971)• [Language derived from statements 
of Clarence Mitchell of the NAACP in Hearings 
on H.R. 6228 & II.R. 13517 Before the General 
Subcomm. on Labor of the House Comm, on 
Education and Labor, 91st Cong., 1st &Sess. at 112 (1970); Hearings on S.24u3,Before the Subcomm. on Labor of the SenateCommittee on Labor and Public Welfare, 9ist ..Cong., 1st Sess. at 79 (1969).] (bracketed items added)
21/ The 1964 Act, however, did contain a pro­
viso, expressed it somewhat precatory 
language:

"That it shall be the policy of the United States to insure equal employment opportunities 
for Federal employees without discrimination 
because of race, color, religion, sex or nationa 
origin." 78 Stat. 234.

This statement of policy was reonactod as 5 IJ.s.C. 
§7151, (5 U.S.C.S. §71511, 80 Ktnt. 52 3 (I860), am) the 
1964 Act's proviso was repealed, isl* # at 66 .
22/ "This disproportionatte [sic] distribution of

-16-



minorities and women throughout the Federal 
bureaucracy and their exclusion from hiyher level policy-making and supervisory positions 
indicates the government's failure to pursue its 
policy of equal opportunity.

"A critical defect of the Federal equal em­ployment program has been the failure of the 
complaint process. That process has impeded rather than advanced the goal of the elimination 
of discrimination in Federal employment. 11.R.
Rep. No. 92-238, on H.R. 1746, 92d Cong., 1st 
Sess., 23-24 (1971).

The principal reason for the enactment of § 717, as the Kancari 
opinion indicates, was strong dissatisfaction with the admin­
istrative complaint process created by the CSC under authority

W
of the Executive Orders.

■6/ The complete statement of the House Report was that:
This disproportionatte distribution of minorities 

and women throughout the Federal bureaucracy and 
their exclusion from higher level policy-making and supervisory positions indicates the govern­
ment's failure to pursue its policy of equal oppor 
tunity.
A critical defect of the Federal equal employment 

program has been the failure of the complaint pro cess. That process has impeded rather than advanced 
the goal of the elimination of discrimination in 
Federal employment. The defect, which existed under the old complaint procedure, was not corrected 
by the new complaint process. The new procedure, 
intended to provide for the informal resolution of 
complaints, has, in practice, denied employees adequate opportunity for impartial investigation 
and resolution of complaints.
Under the revised procedure, effective July 1,

1969, the agency is still responsible for investigat­ing and judging itself. Although the procedure pro­
vides for the appointment of a hearing examiner from an outside agency, the examiner docs not have the authority to conduct an independent investiga­tion. Further, the conclusions and findings of the 
examiner are in the nature of recommendations to 
the agency head who makes the final agency determina­tion as to whether discrimination exists. Although

-17-



the complaint procedure provides.for an appeal 
to the Board of Appeals and Review in the Civil Service Commission, the record shows that the 
Board rarely reverses the agency decision.

The system which permits the Civil Service Com­mission to sit in judgment over its own practices and procedures which themselves may raise questions 
of systemic discrimination, creates a built-in 
conflict-of-interest.
Testimony reflected a general lack of confidence 

in the effectiveness of the complaint procedure on 
the part of Federal employees. Complainants were skeptical of the Civil Service Commission's record 
in obtaining just resolutions of complaints and 
adequate remedies. This has discouraged persons 
from filing complaints with the Commission for fear that it will only result in antagonizing their 
supervisors and impairing any hope of future advance 
ment.

Aside from the inherent structural defects the 
Civil Service Commission has been plagued by a general lack of expertise in recognizing and isola- ing the various forms of discrimination which exist 
in the system. The revised directives of Federal 
agencies which the Civil Service Commission has 
issued are inadequate to meet the challenge of eliminating systemic discrimination. The Civil Service Commission seems to assume that employment 
discrimination is primarily a problem of malicious 
intent on the part of individuals. It apparently 
has not recognized that the general rules and pro­
cedures it has promulgated may actually operate to the disadvantage of minorities and women in systemic 
fashion. All too frequently policies established 
at the policy level of the Civil Service Commission do not penetrate to lower administrative levels.The result is little or no action in areas where unlawful practices are most pronounced. Civil Service selection and promotion requirements are 
replete with artificial selection and promotion re­quirements that place a premium on "paper" credentials 
which frequently prove of questionable value as a

6/ (Continued)

-18-



f?/ (Continued)
means of predicting actual job performance.^ The problem is further aggravated by the agency's use 
of general ability tests which are not aimed at any direct relationship to specific jobs. The inevitable consequence of this as demonstrated by 
similar practices in the private sector, and, 
found unlawful by the Supreme Court, is that 
classes of persons who are culturally or educa­tionally disadvantaged are subjected to a heavier 
burden in seeking employment.

To correct this entrenched discrimination in the 
Federal service, it is necessary to insure the effective application of uniform, fair and strongly 
enforced policies. The present law and the proposed 
statute do not permit industry and labor organiza­tions to be the judges of their own conduct in the area of employment discrimination. There is no reason why government agencies should not be treated 
similarly. Indeed, the government itself should set the example by permitting its conduct to be reviewed 
by an impartial tribunal.
H.R. Rep. No. 92-238, on H.R. 1746, 92d Cong. 1st Sess. at 23-25 (1971); Legislative History at 83-85. 
See generally, id. at 22-26, Legislative History at 
82-85.

Similarly, the Senate Report stated:
One feature of the present equal employment oppor tunity program which deserves special scrutiny by the Civil Service Commission is the complaint process. The procedure under the present system, intended to provide for the informal disposition of complaints, may have denied employees adequate opportunity for 

impartial investigation and resolution of complaints.
Under present procedures, in most cases, each 

agency is still responsible for investigating and judging itself. Although provision is made for the 
appointment of an outside examiner, the examiner does not have the authority to conduct an independent 
investigation, and his conclusions and findings are 
in the nature of recommendations to the agency head 
who makes the final agency determination on whether 
there is in fact, discrimination in that particular

-19-



•6/ (Continued)
case. The only appeal is to the Board of Appeals and Review in the Civil Service Commission.

The testimony Before the Labor Subcommittee re 
fleeted a general lack of confidence 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 resolutions 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 advance­
ment. 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.
Another task for the Civil Service Commission is 

to develop more expertise in recognizing and isolat­ing the various forms of discrimination which exist 
in the system it administers. The Commission should be especially careful to ensure that its directives 
issued to .Federal agencies address themselves to the various forms of systemic discrimination in the system. The Commission should not assume that employ­
ment discrimination in the Federal Government is solely a matter of malicious intent on the part of individuals. It apparently has not fully recognized 
that the general rules and procedures that it has promulgated may in themselves constitute systemic 
barriers to minorities and women. Civil Service selection and promotion techniques and requirements 
are replete with artificial requirements that place a premium on "paper" credentials. Similar require­
ments in the private sectors of business have often 
proven of questionable value in predicting job per­
formance and have often resulted in perpetuating existing patterns of discrimination (sec e-q• Griggs 
v. Duke Rower Co., supra n.1). The inevitable con­sequence of this kind of technique in Federal employ­
ment, as it has been in the private sector, is that classes of persons who are socio-economically or 
educationally disadvantaged suffer a very heavy burden in trying to meet such artificial qualifica­
tions .

-20-

t



6/ (Continued)
It is in these and other areas where discrimina­

tion is institutional, rather than merely a matter 
of bad faith, that corrective measures appear to 
be urgently required. For example, the Committee 
expects the Civil Service Commission to undertake a thorough re-examination of its entire testing and qualification program to ensure that the standards 
enunciated in the Griggs case are fully met.
Senate Rep. No. 92-415, on S.2515, 92d Cong., 1st Scss. at 14-15 (1971); Legislative History at 423-25. See generally, id. at 12-17; Legislative History at 
421-26.

See, Hearing On S.2453 Before The Subcomm. On Labor Of The 
Senate Comm, on Labor and Public Welfare; 91st Cong., 1st Sess. 
at 35-36 (comments of Senator Cranston); 61 (comments of EEOC member, Clifford L. Alexander); 76 (comments of Joseph L. Rauh); 
77-80, 02-04 (testimony of Clarence Mitchell, NAACP); 170-91 (testimony of Julius W. Hobson) (1969) ; Hearings on II.R. 6228 
& H.R. 13517 Before the General Subcomm. On Labor of the House 
Comm, on Education and Labor, 91st Cong., 1st & 2d Sess. at 110-12 (statement of Clarence Mitchell, NAACP); 144-66 (testimony 
of Panel of Federal Employees); 1963-65, 190-205, 238-40 (comments of Chairnuin Hawkins) ; 247 (comments of Rep. Erlenborn) ; 
248 (comments of Rep.Mink)(1970); Hearings on H.R. 1746 Before 
the General Subcomm. on Labor of the -House Comm, on Education 
and Labor, 92d Cong., 1st Sess. at 126-28 (comments of Rep.Mink); 129-30 (comments of Rep. Reid); 153-59 (testimony of Clarence Mitchell, NAACP); 363-64 (comments of Chairman Hawkins); 
387-90 (statement of Clarence Mitchell, NAACP); 390-421 (testimony of Warren Anderson, Black Committee) (1971) ; Hearings 
on S.2515, S .2617 & H.R. 1746 Before the Subcomm. on Labor of the Senate Comm, on Labor and Public Welfare, 92d Cong. 1st Sess. at 198 (testimony of Hon. Rev. Theodore Hesburgh, Chair­
man, U.S. Comm, on Civil Rights), 201-08 (testimony of Hon.
Walter E. Fauntroy, District of Columbia Rep.); 208-26 (state­
ment and testimony of Clarence Mitchell, NAACP); 275-80 (testimony of Daisy B. Fields, Federally Employed Women, Inc.), 
458-68 (statement of Julius W. Hobson) (3.971) ; Note, Racial 
Discrimination in the Federal Civil Service, 38 Geo. Wash. L.Rev. 265 (1969) (influential law review article cited throughout 
hearings) .

For defense of the CSC complaint process, see Hearings On 
S.2453 Before the Subcomm. on Labor of the Senate Comm, on Labor and Public Welfare, 91st Cong. 1st Sess. 127-46 (testimony of Robert E. Hampton, Chairman, CSC) ; Hearings on II.R. b238 & 
H.R. 13517 Before the General Subcomm. on Labor of the House Comm, on Education and Labor, 91st Cong., 1st & 2d Sess. at 191- 
240 (testimony of Irving Kator, CSC)(1970); Hearings on H.R.
1746 Before the General Subcomm. on Labor of the House Comm.

-21-



Both the Senate and House Reports agreed on the need to 
provide for judicial scrutiny of agency disposrtion of employ­
ment discrimination claims no matter which federal agency —
CSC or the EEOC -  ended up presiding over the administrative 
complaint procesi^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 relation­
ships between the employee, agency and commission in these 
cases." Sen. Rep.. SHESa. «  M* Legislative History at 423. 
The Senate Report, which allowed the CSC to supervise the
complaint process, stated:

An important adjunct to the strengthened^Civil Service Commission responsibilities is 
tie statutory provision of a private rrght 
of action in the courts by Federal employees 
who are not satisfied with the agency or 
Commission decision.

6/ (Continued)
on Education and Labor, 92d Cong., ^^Sess. (ig71). Hearings
(statement and testimony 1746 Before" the Subcomm. on Labor ofon S.2515, S .2617 & H.R. 174b Bctore 92d Cong., 1st
the Senate Comm, on Labor and Publ irving Kator (1971).Sess. at 291-344 (testimony & statement o£ irvinj

7/ The debate in Congress bot^eJ"d^ai°e^ployeeshto the EEOC 
administrative jurisdiction ov<? w,th the CSC did not involve and those who sought to leave it wr h the q£ fche csc
any disagreement about the un. ^ both sides that the
complaint process. There was ^ ^ t  LpSrtSnitJ in the federal CSC had not enforced equal cmpl y Pl 2515. 92d Cong.,
service. C ^ .  Leg°blatltf kiTJ'U  421-26. ViRth.1st Sess. at ^-17 (1971N “ 9 92d c , lst Sess. at
H.R. Rep- No. 92-238, on H **j 82-86. Sec citations to22-28 (1971); Legislative History at 82 8b. £ th£J issue
specific parts of hearings, g.u p p , • • _ could do a better
was practical, whether the over ur w §"717 strictures. See, 
gob than CSC s2617 and H.R. 1746 Before the 
f ^ J T ^ T a b ™  of^the'Senate Co-, on Labor and Public

-22-



The testimony of the Civil Service Com 
mission 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 immunity or failure to 
exhaust administrative remedies with no 
certainty as to the steps required to exhaust 
such remedies. Moreover, the remedial authority 
of the Commission and the courts has also been 
in doubt. The provisions adopted by the com- 
mittcc will enable the Commission to grant full 
relief to aggrieved employees, or applicants, 
including back pay and immediate advancement as 
appropriate. Aggrieved employees or applicants 
will also have the full rights available m  the 
courts as are granted to individuals in the 
private sector under Title VII.
Senate Rep. No. 920415, on S.2515, 92d Cong.,
1st Sess. at 16-17 (1971); Legislative History
at 42 5.

The House Report, which allowed the EEOC to supervise the
complaint process, concurred:

Despite the series of executive and administrative 
directives- on equal employment opportunity, Federal 
employees, unlike those in the private sector to whom Title VII is applicable, face legal obstacles 
in obtaining meaningful remedies. There is serious doubt that court review is available to the aggrieve 
Federal employee. H.R. Rep. No. 92-938, on H.R.1746, 92d Cong.. 1st Sess. at 25 (1971); Legislative
History at 85.

Senator Dominick, who with Senator Cranston, authored § 717(c), 
set forth his view of the critical enforcement role the courts

TJ (Continued)
Welfare, 92d Cong., 1st Sess. at 61-62
William II. Brown III, Chairman, EEOC), 198 Theodore Hcsburgh, Chairman, U.S. Comm. On 
295 (comments of Irving Kator, CSC)(1971), Before the General Subcoram. on Labor of the

(statement of (comments of Hon. Rev. 
Civil Rights); 292-93, 
Hearings on H.R. 1/46 House Comm, on Educa­

tion and Labor. 92d Cong.. 1st Sess. at 113-30 (testimony of Harold Glickstein. Staff Director, U.S. Comm. On Civil Rights).

-23-



should play in exorcising their 717(c) jurisdiction.
It is overly simplistic to arguo as many have, 

that protection of employees rights can best bo 
achieved by vesting the present pro-employee (EEO] 
Commission with as much enforcement power as 
possible. The vicissitudes of Presidcntially appointed Boards is legend. The administrative Board possessing enforcement powers most similar 
to the cease and desist powers advocated by the 
majority, the National Labor Relations Board, 
provides the best example of this. Critics 
charge that the NLRB, in reacting to political winds rather than stare decisis, have fluctuated from pro-management decisions during the Eisenhower Administration to pro-labor positions during the Johnson and Kennedy Administration. Determination 
of employment civil rights deserves and requires 
non-partisan judgment. This judgment is best 
afforded by Federal court judges who, shielded 
from political influence by life tenure, arc more likely to withstand political pressures and render their decisions in a climate -tempered by judicial reflection and supported by historical judicial 
independence. i
Likewise simplistic reasoning has classified 

proponents of court enforcement as being pro­
respondent or anti — employees 1 rights. Nothing 
could be less correct. Both procedures seek to achieve the same end— the fair redress of employees-' grievances. Althoug I opposed the cease and desist provisions, I voted to report S.251d , as amended, 
out of committee favorably as I was most encouraged by the potential relief its compromise amendments offered federal employees. As the report indicates, 
these employees are the most frustrated in achieving equal employment opportunity. I authored an amend­
ment with Senator Cranston which was adopted that provided the approximately 2.6 million civil service 
and postal workers with court redress of their employ­ment discrimination grievances. The amendment creates 
machinery suggested by Clarence Mitchell, Director, 
Washington Bureau, NAACP, whereby an aggrieved civil 
service or postal employee has the option after ex­hausting his agency remedies, of either instituting 
a civil suit in Federal district court or continuing 
through the Civil Service Board of Appeals and Re­
views to district court, if necessary.
Senate Rep. No. 92-415, on S.2515. 92d Cong., 1st Sess. at 85-86 (1971); Legislative History at 493-94.

-24-



Senator Dominick’s similar position on judicial enforcement 
for private employees, JlcI- at 86-87, Legislative History at 
494-99  ̂ as utilizing special assets of both the executive and 
judicial branches and providing an expeditious and final 
remedy, also eventually prevailed.

Floor debate on § 717(c) was minimal. As Senator Williams
puts it:

Another significant part of the bill and one 
that has not had very much debate because it was so clearly accepted at the committee level, con­cerns our Federal Government employees. The 
requirement of equal employment opportunity i.̂ 
extended by statute to these employees, and for the first time a clear remedy is provided enabling 
them to pursue' their claims in the district courts 
following a Civil Service Commission or agency 
hearing. Legislative History at 1768.

Proponents of § 717(c) set forth its requirements without
8/encountering any dissent.

The Congressional reports and floor debate reflect the 
consensus of the framers of §717(c) evinced during hearings on 
the bills that:

. . . perhaps this a matter f1.e., the intransigence
of federal agencies] that should be resolved in the 
courts. I don't think the Executive can take pri mary responsibility for being its own watchdog. 1 
think that is part of the reason for having the 
courts. It equally is a better procedure. I can visualize moments where you would have a President 
who would be very strong in the area and moments where this might not be the case, or where you

8/ Legislative history at 1722-25 (comments of Sen. Cranston), 
1725-27 (comments of Sen. Williams); 1727-30 (Analysis of Federal 
Employment submitted by Sen. Williams); 1744-52 (comments of 
Sen. Cranston); 1752-04 (submissions of Sen. Cranston); 177 (section-by-section analysis) 269-72 (comments of Mr. Fauntroy); 
288-92 (comments of Rep. Badillo).

-25-



would have White House staffers who might look^ more South than North, and in any event. I don t
think you are going to be upheld.★ ★ ★
What I am saying is that if we are really going to change the structure of the Government and open 

i.t up in certain areas where it should be opened 
then we are going to have to have remedies that reach beyond the Executive’s capacity not to act. 
Hearings on H.R. 6228 & H.R. 13517 Before the General Subcomra. on Labor of the House Comm, on Education and Labor, 91st Cong., 1st & 2d Sess. 
at 237-38 (1970) (comments of Rep. Reid).

Civil rights activists and representatives of black federal
employees specifically took issue with the CSC at hearings that
aggrieved federal employees could invoke judicial review after
exhausting administrative remedies under preexisting law.
“Government employees must be given access to the Federal courts
so that discriminatory action by the Government will stand no
longer as a wrong without a remedy behind the veil of sovereign
immunity." Hearings on H.R. 1746 Before the General Subcomm.
on Labor of the House Comm, on Education and Labor, 92d Cong.,
1st Sess. at 391-92 (testimony of Warren Anderson, Black
Committee). An example of this conflict between civil rights
activists and the CSC, resolved eventually by the Committee
and the full Congress in favor of the civil rights activists, is
the following colloguy between Clarence Mitchell of the NAAC1
and Irving Kator of the CSC:

Mr. MITCHELL. Would you indulge me just to ask if you will ask the Civil Service Commission 
while they are here whether there is any way that a complainant who is unable to get redress before 
the Board of Appeals and Review can get redress by 
going into the Federal Courts?

-26-



The CHAIRMAN. I am glad you have asked me to 
ask the question; and without rephrasing it, 1 
think you heard it, Mr. Kator.

Mr. KATOR. Yes, Mr. Chairman.Mr. Mitchell, an employee dissatisfied with a 
decision of the Commissions Board of Appeals and 
Review may get into court. I think we cited in our written statement a recent case in the Colorado 
district, which made this very clear, that permits the employee to move from the Commission's Board of Appeals and Review directly into the courts for 
review of that procedure.
The CHAIRMAN. Does that seem responsive, Mr. 

Mitchell?
Mr. MITCHELL. Yes; but it is not in line with 

our experience.As I pointed out in my testimony yesterday, we have filed a complaint against the Commission at 
HUD here in the U.S. District Court for the District 
of Columbia, and we have had to rely on at least four different statutes plus the fifth amendment, 
and it is by no means clear at this point that the 
courts will uphold that principle on which we are 
relying.Now, if we ultimately win, we would, of course, 
take at least about 4 years to do it according to 
the Supreme Court. But it seems to me by doing 
what the bill proposes to do, the whole thing would be simplified and we would have a clear 
channel into the courts under the statute as pro­
posed in this bill.
Hearings on S.2515, S.2617 & H.R. 1746 Before the
Subcomm. on Labor of the Senate Comm, on Labor
and Public Welfare, 92d Cong., 1st Sess. at 296 (1971)

9/
The position of the CSC, specifically rejected by the 

Congressional committees, was that there was no need for an

cj/ Hearings on H.R. 6228 & H.R. 13517 Before the General .mb 
comm, on Labor of the House Comm, on Education and Labor, 91st 
Cong., 1st & 2d Sess. at 216 (testimony of Mr. Kator)(1970); 
Hearings on H.R. 1746 Before the General Subcomm. on Labor of the House Comm, on Education and Law, 92d Cong., 1st Sess. at 320, 322 (testimony of Mr. Kator); 305-86 (CSC statement)(1971); 
Hearings on S.2515, S.2617 & H.R. 1746 Bcfre the Subcomm. on Labor of the Senate Comm, on Labor and Public Welfare, 92d Cong., 1st Sess. 301 (statement of Mr. Kator), 310 (CSC statement) (U71) .

-27-



express statutory right of action. In light of this legisla­
tive history, the CSC complaint process upon which Congress delib 
erately imposed a system of judicial safeguards, should be 
subjected to the closest scrutiny and little deference given to 
findings and decisions of no discrimination.

Intent To Accord Federal Employees The Same Enforcement 
Rights As Private Employees-------- _ -------------- ------

A second point on which there was consensus in the legis­
lative history, as reflected in language incorporating § 706 
provisions, was that the right of action accorded federal 
employees by § 717(c) should be the same right of action pre­
viously conferred upon private employees by § 706, i . > trial 
de novo . See Robinson v. Lorrillard Corp., supra ; Rev e r I y.. v 
Lone Star Lead Construction Corp. , supra; Flowers v. Loca3r _6 
Laborers International Union of North America, supra; Poketo 
v. United States Steel Corp.; Smith v. Universal^ScrviccSj— 1 ~̂— 
supra. The Senate Report stated that, "Aggrieved employees 
or applicants will also have the full rights available in the 
courts as are granted to individuals in private sector under 
Title VII." (emphasis added) Sen. Rep. No. 92-415, on S.2j15, 
92d Cong., 1st Sess. at 16 (1971); Legislative History at 425. 
The House Report said no less: " . . .  there can exist no
justification for anything but a vigorous effort to accord 
Federal employees the same rights and impartial treatment which 
the law seeks to afford employees in the private sector, 
(emphasis added) H.R. Rep. No. 92-238, on H.R. 1746, 92d Cong.

-28-

?



1st Scss. at 23 (1971); Legislative History at 83. As the 
Conference Report, speaking of federal employees, put it "an 
aggrieved party could bring a civil action under the provisions 
of Section 706," Conference Rep. No. 92-681, on H.R. 1746.
92d Cong., 2d Sess. at 21 (1971); Legislative History at 1819. 

Floor debate is to the same effect. Senator Cranston,
one of the authors of § 717(c), stated:

As with other cases brought under Title VII 
of the Civil Rights Act of 1964, Federal District Court review would not be based on 
the agency and/or CSC record and would be a 
trial de novo . (emphasis added). 119 Cong.Rec. § 1219 (daily ed. January 23, 1973) (cor 
recting error made in 118 Cong. Rec. § 228/, 
Legislative History at 1744.)10/

10/ 119 Cong. Rec. § 1219 states:
Unfortunately, Mr. President, the word "not" was mi solaced . . . the bound volume of the Congres­
sional Record . . .  will set forth this sentence 
in the correct manner as follows :

As with other cases brought under Title 
VII of the Civil Rights Act of 1964 Federal District Court review would not 
be based on the agency and/or CSC record 
and would be a trial de novo.

I hope that this correction will . • • avoid anymisplaced reliance upon the incorrect version as 
originally printed in the Congressional Record of 
February 22, 1972.

As Senator Cranston's comment stood initially, with the transposed to the second clause, it would have misrepresented
existing law that private employees were e n t R o b i n - o n  v de novo after EEOC proceedings under § 706. See BS— ac~" 0n 
Lorri Hard Corn., sunran Bover \x_JLz. c -Â -a-r L - a-~—— - ~
Corn7 ~sudta; lH<^e r s . c a  1 _6_of'Itorth'to//  ica, supra; Fekete v.._Unxted States otccl. Co.rl-' 
Smith v

/ u  11 v.. i  t —  - — ■— .— . i. ■ — —     Universal Services, Inc., supia.

-29-

r



Senator Dominick, the other author of § 717(c) said the same:
. it strikes me that one of the first things 

we have to do is at least to put employees hold­
ing their jobs, be they government or private employees, on the same place so that they have 
the same rights, so that they have the same 
opportunities, and so that they have the equality within their jobs to make sure that they are not being discriminated against and 
have the enforcement, investigatory procedure 
carried out the same way. (emphasis added) ll8 
Cong. Rec. § 176 (daily ed. January 20, 1972), 
Legislative History at 680-01.

Senator Dominick later reiterated his point:
It seems to me that where we are dealing with job discrimination, it makes no difference what type 
of job you have, you should be entitled to - same remedies anyone else in that situation h , 
and~ thi s is a right to have the federal court determine whether or not you have been discriminated 
against (emphasis added) 118 Cong. Rec. § 17/ tdaily ed. Feb. 15, 1972); Legislative History at la27

Senator Williams, sponsor and floor manager of S.2515. said no

les
Finally, written expressly into the law is aprovision enabling an aggrieved Federal employee 

to file an action in U.S. District Court for a 
review of the administrative proceeding record 
after a final order by his agency or by the Civil 
Service Commission, if he is dissatisfied with 
that decision. Previously, there have been un 
realistically high barriers which prevented or 
discouraged a Federal employe from taking a case 
to court. This will no longer be the case.
There is no reason why a Federal employee should 
not have the same private right of action enjoy 
by individuals in the private sector, and I 
believe that the committee has acted wisely i 
this regard (emphasis added).
118 Cong. Rec. § (daily ed.
Legislative History at 172/. 11_/

1972) ;

11/ Several district courts have interpr 
"review of the administrative proceeding 
standing alone, as limiting the scope of

eted Senator Williams 
record" language, 
judicial review, e

-30-



Sec also Legislative History at 681-82, 835, 1441, 1482 (comments 
of Sen. Dominick); 1723 (comments of Sen. Cranston).

In committee hearings, witness after witness spoke of the 
need to assure federal employees of the § 706 right to seek
redress in the courts as private and state or local government

12/employees. ~ The reason for requiring a § 706 trial de novo 
is apparent. As Clarence Mitchell of the NAACP, who is 
credited with suggesting the § 717(c) right of action scheme, 
stated:

Under (the CSC complaint] system each agency investigates itself with the result that if 
by some miracle there is a finding of dis­crimination, its implementation is delayed 
by various obstructionists. Needless to say, such findings of discrimination are few and 
far between. In fairness, it must be said 
that some members of the Civil Service Com­mission itself and a few of the top officers of the Commission have made valiant attempts to establish workable fair employment policies. 
Unfortunately, the lower levels of bureaucracy in the commission itself and in the Government agencies usually nullify these policies by using cumbersome procedures that are weighted in favor 
of those who discriminate and by tolerating 
supervisory personnel with known records of 
discrimination.
Hearings on S.2453 Before the Subcomm. on Labor 
of the Senate Comm, on Labor and Public Welfare,

11/ (Continued)
Hacklev v. Johnson, 360 F. Supp. 1247, 1252 (D.D.C. 1973).overlooks the overwhelming evidence in favor of trial de novo as well as the meaning of the statement taken as whole. Senator 
Williams' statement that an employee could file an action only "after a final order by his agency or the Civil Service Comm, 
is of course also inaccurate.
12/ See citation to specific parts of the hearings, supra, n . 6.



91st Cong-, 1st Sess- at 79 (1969); Hearings on H.R. 
6228 & H.R- 13517 Before the General Subconun. on 
Labor of the House Conun. on Education and Lcibor,
91st Cong., 1st & 2d Sess. at 112 (1970).

Only the CSC characterized judicial scrutiny as limited to a
limited review of the administrative procedure as in CSC adverse 

13/action cases. These comments, however, were pitched to the 
degree of judicial scrutiny the CSC claimed existed under pre­
existing law. The Committee reports of course rejected the 
claim of a preexisting right of action for federal employees 
that obviated the need for § 717(c). Moreover, § 717(c) and 
§ 717(d) specifically incorporate the § 706 civil action pro­
visions with broad scope of judicial scrutiny espoused by 
civil rights activitists, thus rejecting limited review of 
the administrative record in adverse action litigation that 
the CSC propounded. A clear choice was made. §717(c), as 
Senator Dominick put it, provides "more remedies for those 
who are discriminated against in Federal employment than have 
ever been available to them before." 118 Cong. Rcc. §
(daily ed. 1972); Legislative History at 1526. Only a
trial de novo accomplishes this; review of the administrative 
record would give the complainant nothing he didn't have before. 
This Court cannot and should not permit the undoing of what

Congress so clearly intended to do and did in 1972.

12/ See Hearings on H.R. 1746 Before the General Subcomm. on Labor of the House Comm, on Education and Labor, 92 Cong.,
1st Sess. 385-86 (1971); Hearings on S.2515, S.2617 A H.R.
1746 Before the Subcomm. on Labor of the Senate Comm, on Labor 
and Public Welfare, 92d Cong., 1st Sess. at 296 (1971) .

-32-



Ill.

THE STATUTORY PURPOSE OF § 7 3-7 
REQUIRES A TRIAL DE NOVO IN WHICH 
LITTLE WEIGHT SHOULD BE GIVEN THE 
RECORD DEVELOPED DURING THE CSC DISORTMINATION COMPLAINT PROCEog_-_

as a
The lower court should have given little evidentiary weight to

prior adverse agency disposition of the discrimination complaint 
natter of law in light of the statutory purpose of § 717 
to completely eliminate racial discrimination in federal employ­
ment. § 717(a) states that, "All personnel actions affecting 
employees or applicants for employment . . - shall be made free
from any discrimination based on race, color, religion, sex, or 
national origin." (emphasis added). Judicial precedent and 
clear expression of statutory purpose require that unless prior 
agency dispositions of discrimination claims meet a rigorous 
standard they are not to be accorded substantial evidentiary 
weight in § 717 civil actions in the federal courts. The 
present revised CSC Equal Opportunity Regulations, 5 C.F.R.
Part 713, on their face and as administered, are simply not 
designed to accord federal employees a substitute for the 
independent judicial determination of facts concerning claims of 
racial discrimination and application of controlling constitutional 
and statutory principles of law of a trial dc novo.

Judicial precedent and 5 717 Statutory  ̂
In two recent unanimous decisions 

set forth the factors to be considered

purpose
the Supreme Court ha 

w3ien deciding the

-33-



evidentiary weight to be given prior non-judicial disposition
of Title VII claims in trials de novo. In McDonnell Douglas v .
Green, 411 U.S. 792, 798-99 (1973), the Court had before it an
EEOC finding of no reasonable cause.

. . . the courts of appeal have held that, in
view of the large volume of complaints before 
the Commission and the nonadversary character of 
many of its proceedings. court actions under 
Title VII are de novo proceedings and . . .  a 
Commission 'no reasonable cause' finding does not 
bar a lawsuit in the case.' Robinson v. Lorillard 
Corp. 444 F.2d 791, 800 (CA4 1971); Beverly v. Lone 
Star Lead Construction Corp., 437 F.2d 1136 (CAS 1971); Flowers v. Local 6, Laborers inter­
national Union of North America, 431 F.2d 205 
(CA7 1970); Fekete v. U.S. Steel Corp., 424 F.2d 
331 (CAS 1970).

This Circuit, in Smith v. Universal Services^_ZUfL* *
454 F .2d 154 (5th Cir. 1972), has elaborated upon the Supreme Court 
reasoning that the record of nonadversary administrative proceeding

- 14/is necessarily suspect. In Alexander v. Gardncr-Denvcr Co.,

14/ It is not to be denied that under Title VII, the action of the EEOC is not agency action of a quasi-judicia1 nature which determines the rights 
of the parties subject only to the possibility that 
the reviewing courts might conclude that the EEOC's actions are arbitrary, capricious or an abuse of 
discretion. Instead, the civil litigation at the 
district court level clearly takes on the character 
of a trial de novo, completely separate from the 
actions of the EEOC. United States v. H.K. Porter 
Company, N.D. Ala. 1968, 296 F. Supp. 40; King v. Georgia Power Co., supra. It is thus clear that the 
report is in no sense binding on the district court 
and is to be given no more weight than any other 
testimony given at trial.



39 L. Ed. 2d 147 (1974), the Court similarly had before it 
a prior arbitral decision of no discrimination.

14/ (Continued)I
This is not to say, however, that the 

report is inadmissible. A trial de novo 
is not to be considered a trial in a vacu­
um. To the contrary, the district court is obligated to hear evidence of whatever nature which tends to throw factual light on 
the controversy and ease its fact-finding 
burden.

The Commission's decision contains 
findings of fact made from accounts by different witnesses, subjective comment 
on the credibility of these witnesses, and reaches the conclusion that there is reasonable 
cause to believe that a violation of the Civil 
Rights Act has occurred. Certainly these are 
determinations that are to be made by the 
district court in a dc novo proceeding. We think, however, that to ignore the manpower 
and resources expended on the EEOC investi­gation and the expertise acquired by its field investigators in the area of discriminatory employment practices would be wasteful and 
unnecessary. [454 F.2d at 157]

in contrast to the expertise of the EEOC in investigating employment discrimination, the CSC was criticized by congress 
for its failure to even perceive the class nature of discnmi 
nation. H.R. Rep. No. 92-238, on H.R. 1746, 92d Cong., 1st Sess. at 24-25 (1971); Legislative History at 84-85; Sen. Rep.
NO. 92-415, on S.2515, 92d Cong., 1st Sess. at 13 (1971); 
Legislative History at 422.

-35-

r



Moreover, the fact-finding process in 
arbitration usually is not equivalent to judicial 
fact-finding. The record of the arbitration proceedings is not as complete? the usual rxilcs of 
evidence do not apply? and rights and procedures 
common to civil trials, such as discovery, compulsory process, cross-examination, and testimony undex oath, 
are often severely limited or unavailable. Sec 
Bernhardt v. Polygraphic Co., 350 U.S. 108, 203,
100 L. Ed. 199, 76 S. Ct. 273 (1956); Wilko v. Swan, 
346 U.S. 427, 435-437, 98 L. Ed. 163, 74 S. Ct. 182 
(1953). . • - indeed, it is the informality ofarbitral procedure that enables it to function as an efficient, inexpensive, and expeditious means for 
di spute resolution. This same characteristic, how­
ever, makes arbitration a less appropriate forum for. 
final resolution of Title VII issues than the federal 
courts. 19/

19/ A further concern is the union's exclusive control "over the manner and extent to which an individual grievance 
is presented. See Vaca v. Sipes, 386 U.S. 171, 17 L. Ed.
2d 842, 87 S. Ct. 903 (1967)? Republic Steel Co. v Maddox 379 U.S. 650, 13 L. Ed. 2d 580, 85 S. Ct. 61 (1965) In arbitration, as in the collective-bargaining
process, the interests of the individual employee may bo subordinated to the collective interests of all employees 
in the bargaining unit. See J. I. C^ eoCo- v• Labor Board 321 U.S. 332, 88 L. Ed. 762, 64 S. Ct. j76 (1914).Moreover, harmony of interest between the union and the individual employee cannot always be presumed, especially  ̂where a claim of racial discrimination is made. See, eg., 
Steele v. Louisville & N. R. Co., 323 U.S. 192 89 L. Ed.
173, 65 S. Ct. 226 (1944); Tunstall v. Brotherhood of 
Locomotive Firemen, 323 U.S. 210, 89 L. Ed. 187,
235 (1944). 39 L. Ed. 2d at 163-64.

Ct.

Clearly, it is 
the effect of 
and decisions 
processes for

incumbent upon this Court to carefully 
the nature of CSC complaint procedures 
of no discrimination. The validity of 
complaints of racial discrimination is

consider 
on CSC findings 
non-judicial 
suspect.

-36-



■ I

[
Moreover, expressions of § 717 statutory purpose yield 

specific reasons why CSC complaint procedures in particular are auqxsct 
and entitled to no presumption of validity. The failure of the 
CSC complaint process to enforce equal employment opportunity (
in federal employment was itself the principal reason for
enactment of § 717, Morton v. Mancari, 41 L. Ed. 2d 290, 298 (1974), j
and by enacting § 717 Congress issued an express mandate, in un-

1
usually strong language, that the complaint process be reformed 
in specific and fundamental ways. The House Report detailed 
"inherent structual defects" in CSC investigation and hearing 
practices that created the need for reform.

4

A critical defect o f  the Federal equal employment propram has 
been the failure of the complaint process. That process has impeded 
rather than advanced the coal of the diminution of discrimination in 
Federal employment. The defect, which existed under the old com­
plaint procedure, was not corrected by the new complaint process. The 
new procedure, intended to provide for the infotmal resolution of 
complaints, lias, in practice, denied employees adequate opportunity 
for impartial investigation und resolution o f  complaints.

Under the revised procedure, effective July 1. 1001), the agency is 
still responsible for investigating and judging itself. Although the 
procedure provides for the appointment of a hearing examiner from 
an outside agenev. the examiner does not have the authority to conduct 
an independent investigation. Further, the conclusions and findings of 
the examiner are in the nature of recommendations to the agency head 
who makes the final agency determination as to whether discrimina­
tion exists. Although the complaint procedure provides for an appeal 
to the Hoard of Appeals and Rev iew in the C ivil Scrv ice Commission, 
the record shows that the Hoard rarely reverses the agency decision.

The system, which permits the Civil Service Commission to sit in 
judgment over its own practices and procedures which themselves may 
raise iftfe't ions of systemic dlserttuimit ion, creates a built-in conflict-
of-interest. .

Testimony reflected a general lack of confidence in the effectiveness 
.-df the complaint procedure on the part of federal employees. ( om- 
piainanfs were skeptical of the Civil Service Commission's record in 
obtaining just resolutions of complaints and adequate remedies. This 
has discouraged persons from filing complaints with the ( otnmission 
for fear that it will only result in antagonizing their supervisors and 
impairing an% hope of future advancement.

*  *  *
/

-37-

r



T o  correct this entrenched discrimination in the Federal service, it 
tc nuroiK'trv to insure the effective application o f  uniform, fa ir  nnd 
strongly enforced policies. The present law and the proposed statute 
do not permit industry and lai>or organizations to Ik: the judges of 
their own conduct in the area o f employment discrimination. There is 
no reason why government agencies should not l>o treated similarly. 
Indeed, t lie government itseI f should set t lie example h\ perm it I mg it s 
conduct to lie reviewed hv an imparl ml trilmual. I treatise the Equal 
Employment Opportunity Commission is the expert agency in the 
field o f employment discrimination and because it is tin independent 
agency removed from the administration of Federal employment, it 
is the most logical place for the enforcement j>ower to be vested.

II.R. Rep. No. 92-238, on II.R. 1746, 92d Cong., 
1st Sess. at 23-25 (1971); Legislative Historv at 83-85. J

The Senate Report concurred.

One feature o f the present equal employment opportunity program 
which deserves special scrutiny by the Civil Service Commission is the 
complaint ino ess. The procedure under the present systcm.nr.lentVd to 
provide lor the informal disposition of complaints, may have denied 
employees adequate opportunity for impartial investigation and reso­
lution o f  complaints.

Under present pi occdtires, in most cases, each agency is still respon­
sible for investigating end judging itself. Although provision in made 
for the appoint incut of an outside examiner, the examiner d o e s  not 
have. the. authority to conduct, an independent investigation, and his 
conclusions and findings are in the nature o f recommendations to the, 
agency head who makes the final agency determination on whether 
there is, in fact, discriminat ion in that part icular case. The only appeal 
is to the hoard of Appeals and Review in the Civil Service 
Commission.

The testimony before the Labor Subcommit tee reflected a general 
lack o f confidence in the clientivcm ss o f the complaint procedure on 
the part o f Federal employees. Complaints have indicated skepticism 
regarding the Commis-uon's record in obtaining just resolutions of 
complaints and adequate remedies. This has, in turn, discouraged per­
sons from tiling complaints with the Commission for fear that doing 
so will only remit in antagonizing their supervisors and impairing 
any future hope of advancemvnt. The new anthority given to the Civil 
.Service Ci.; io  in'- in t he 1 a! I ■ W n d r d  to enable t Itc Commis-in!i to 
reconsider its entire complaint struct ure and the relationships between 
the employee, agency and Commission in these cases.

Sen. Report No. 92-415, on S.2515, 92d Cong.,
1st Sess. at 14 (1971); Legislative History at 423.

-38-



For materials that more fully indicate why Congress condemned 
the CSC complaint process, see supra, n. 6 .

part 713 Regulations On Their Face
A comparison of present CSC regulations dealing with investiga­

tion and hearing procedures that became effective December 1, 1972
with those effective during Congressional consideration of § 717, 
clearly indicates that no fundamental reform of the complaint proces

15/has been undertaken. As a preliminary matter, § 713.213 prccomplaint 
processing procedures in which an aggrieved person is required 
to consult with an agency EEO counselor before an investigation 
can be initiated remain essentially unchanged, notwithstanding 
that both Congressional reports stated that procedures geared 
to informal resolution of complaints have "impeded rather than 
advanced the goal of the elimination of discrimination in federal 
employment." The injunction that, "The Counselor shall not 
attempt in any way to restrain the aggrieved person from filing 
a complaint" appears to be the only notable change. See App. at 
8a-10a. § 713.215 provisions which permit the agency itself to 
reject a complaint under certain circumstances and cancel a 
complaint for failure to prosecute are not significantly altered, 
see App. at ICa, notwithstanding Congressional criticism of the

15/ Attachment 1 of the Commission's F.P.M. letter No. 713 17 of 
November 3, 1972 to Heads of Departments and independent Establish
ments, indicates precisely the materials added and deleted to the 
former set of regulations. The Attachment is set forth as App. 1.



practice that "each agency is still responsible for investi­
gating and judging itself."

Till! right to file a civil action conferred by § 717(c) is 
merely added onto existing investigative and hearing procedures 
in the CSC regulations, effectively shifting the burden of reform 
onto the shoulders of the few individual complainants willing to 
invoke the jurisdiction of the courts and the judiciary itself.
5 713.216 procedures in which the defendant agency conducts an 
investigation of the complaint have not, been altered in any way, see 
APP. at 11-12, notwithstanding that Congress expressly criticized 
this system which "denied employees adequate opportunity for 
impartial investigation and resolution of complaint." Only the 
requirement that the agency furnish the complainant with a copy 
of the investigative file was omitted and transferred to 
§ 713.217 to make it clear that the requirement is only for the 
purpose of informal adjustment of the complaint.. See App. at'
12. As was the case before, neither the complainant nor the 
hearing examiner has any right of discovery or compulsory process. 
These regulations are clearly not aimed at adversenal fact 
finding as in a court of law, but at developing the kind of 
arbitrator's "record" in Alexander v. Gardner-Denver, nupra, 
where discovery and compulsory process were similarly absent.

The hearing procedures of § 713.218 are altered literally 
in a cosmetic way only. Neither the investigation of the 
complaint by the defendant agency nor the inability of the 
examiner to conduct an independent investigation is changed.

-40-



CSC, however, has changed the formal title of the examiner
throughout § 713.218 from "appeals examiner" to "complaint
examiner." See App. atl3a-15a. Moreover, instead of the
statement in § 713.218(e) that the examiner request the testimony
of any employee whose testimony "he desires to supplement the
information in the investigative file," there is now language
that he may request testimony" he determines is necessary to furnish
information pertinent to the complaint under consideration. Again,
there has been a change of form without concomitant substantive change
in actual practice. Furthermore, § 713.221 provisions that the 
defendant agency shall make the final decision on the complaint 
are unchanged, notwithstanding congressional criticism that 
agencies should not be "the judges of their own conduct in the 
area of employment discrimination." The defendant agency is also 
instructed that disciplinary action against discriminatory officials 
must not be included in the complaint file. See App. at: 18a-10u. 
Finally, § 713.283 makes clear that, "The filing of a civil action 
by an employee or applicant docs not terminate agency processing 
of a complaint or commission processing of an appeal under 
this subpart." Clearly, the complaint process is not intended to 
substitute for judicial process even by its proponents.

The inherent structual features of the CSC complaint process 
that congress intended the CSC to eliminate and replace remain.
One can only conclude that the revised regulations fail even 
to address the problems that troubled Congress so much in 19/2.
Nor docs the present administration of the regulations by the

- 4 1 -

?



agency and the C.SC give discrimination complainants any hope for 
the fair and impartial forum Congress contemplated other than by 
bringing an independent action in the federal district courts 
pursuant to § 717(c). The decision Congress made in 1972 to create 
a right of trial do novo is as valid today as ever.

Administration Of The Regulations *
Flaws that appear on the face of CSC regulations are not 

corrected by enlightened administration. A scrutiny of investi­
gation and hearing procedures as they are supposed to be applied,

!§/i . e., as described in CSC manuals and handbooks, indicates as 
well that courts should give little deference to adverse administra­
tive findings of no discrimination by an agency.

Discrimination was found in 7.4% of the dispositions
"reviewed by the Commission" in FY 1970 and 4.8% of the dispositions

12/"reported" in the first half of FY 1971 before the enactment

10/ U. S. Civil Service Commission, Investigating Complaints of Discrimination In Federal Employment (Rev. October 1971) 
[hereinafter "Investigation Manual"]. u. S. Civil Service 
Commission, Discrimination Complaint Examiner's Handbook (April 1973) [hereinafter "Examiner's Handbook"].
17/ M. Brewer, Behind The Promises: Equal Employment Opportunity
In The Federal Government III-4 - I1I-5 (Public Interest Research 
Group 1972) [hereinafter "Nader Report"] from information supplied by the CSC.

- 4 2 -



of § 717. For FY 1974, di scrimination war. found ln 7'" of
dispositions "on the merits or withdrawals." No improvement
in performance has occurred even though the number of formal
complaints filed after unsuccessful informal resolution by EEO

counselors has steadily increased: FY 1972 = 1.034: FY 1973 =
19/

2,743; FY 1974: 3,435.
Furthermore, the House Report had expressly called attention 

to the fact that, "Although the complaint procedure provide for an 
appeal to the Board of Appeals and Review in the Civil Service 
Commission, the record shows that the Board rarely reverses the 
agency decision of no discrimination. II.R. Rep. No. 92-23B,
„.R. 1746, 92d Cong., 1st Sess. at 24 (1971): Legislative History
at 84. It. was observed in 1972 that:

After the agency head or his designee decides the merits of a complaint lodged against tlio agency 
the complainant's only recourse is to the Board of Appeals and Review. The Bar has reversed u 
agency head's decision on an EEO complaint only 14 
times in the last four years, out of 1,304 appeaica complaints reviewed by the BAR in that period The 
agency head's decisions that their agencies did not discriminate has been upheld by the BAR 98 9 per cci
of the time. Nader Report at III-20 - III - *•

1B/ u S Civil Service Comm., Memorandum on Precomplaint Counseling 
^  Discrimination Complarnt Activity During Frscal Year 1974 
(August 20, 1974). See App. II.
in/ p s dvil Service Comm., Memorandum on Governmentwide Equal 
Employment1 Opportune ty Counseling and Dr scrimrnatr on Ccmplj t ̂  
Activity, Fiscal Year ^72 thru Fiscal^ear ^ cvca!icd fromof racia scrrmi n ̂ ^  ^  „  1974. or a
increase of 65% in two years. See App. III.

an

- 4 3 -



The performance of BAR lias not significantly changed since 
the enactment of the 1972 Amendments. In FY 1974 ̂ 54.9/4 of
all EEO appeals closed out by BAR were affirmances of agency 
decisions of no discrimination, 427 of 778 appeals. 1% of all 
appeals closed out were affirmances of agency decisions of dis­
crimination, 8 of 778 appeals. Only 2.3% of all appeals closed out 
were reversals of agency decisions of no discrimination, 18 of 778. 
Fully 21.9% of EEO appeals closed out were adjudged not within 
purview or untimely by affirmance or reversal, 171 of 778 appeals. 
BAR affirmed agency decisions of all kinds in 76.5% of appeals 
closed out, reversed agency decisions of all kinds in 6.4%, 
remanded to the agency in 10.5% and the appeal was cancelled in 
6.6%. It should also be noted that in FY 1974 the 778 employment 
discrimination appeals were only 22.5% of BAR'S actual workload 
of 3,455 processed appeals and in FY 1973 the 695 discrimination 
appeals were only 17.0% of 4,101 processed appeals. Other appeals
to BAR include adverse action, reduction of force, suitability

19a/
and retirement matters.

The importance of a thorough and impartial investigation 
of the complaint is indicated by the frank admission that:

The hearing is an adjunct to the investigation.
It is not an adversary proceeding but is an ad^TdiTrativo proceeds no designed to provide 
additional evidonee. (original emphasis)
Examiner's Handbook at 5.

Similarly, the Chairman of the CSC has emphatically stated
Before answering your specific questions, it 

may be helpful to set forth some basic facts about 
the complaint procedure. The procedure is one 
the means by which the agency discharge its

of

19n/ Attachment 2 
FY 1974 at pp. 19, 
FY 1973. See App.

of BAR Annual Report To The Commissioners 
12-14. compare statistics for FY' 197 ,
IV.

For

-44-



responsibility under the law and regulations to assure that all its personnel actions are free from 
any discrimination based on race, color, religion, 
sex, or national origin. It is important to stress 
that it is from beginning to end (at least until appeal) basically an investigative process. Thus, 
although the complainant is accorded the right to a 
hearing, the hearing is not adversary but is an extension of the initial investigation into the com­
plaint. The hearing is for the same purpose as the 
initial investigation, that is to develop the facts 
on which a decision of the agency can be made.
Letter from Robert E. Hampton, Chairman, CSC, to 
Arthur F. Sampson, Acting Administrator, GSA, of 
June 1G, 1973. See APE' V -

Nevertheless, the investigation of discrimination complaints 
under present CSC regulations is in the hands of the defendant 
agency. First, the investigator is an agency employee, probably 
has career plans within the agency, and is likely to be junior 
to the supervisory personnel charged with discrimination.
Second, the investigation Manual limits the investigator s 
independence by advising consultation with agency EEO superiors 
and other agency EEO personnel including the counselor who has 
attempted but been unable to informally resolve the complaint 
before, during and after the investigation.

20/

and

After receiving the assignment, the investigator 
should study the complaint and the report of the Equal 
Employment Opportunity Counselor so as to have clearly 
in mind the issues in the complaint. investigation 
Manua1 at 7.

The investigator may on occasion find it appropriate 
to consult with the Director of Equal Employment 
Opportunity, members of that official s staff, the 
Equal Employment Opportunity Officer, or the Equ l 
Employment Opportunity Counselor who counseled the 
complaint. As a matter of courtesy, the investigator

- 4 5 -

r



Third, the investigator is instructed to "identify himself 
to each person interviewed and advise that person that he has 
been assigned the responsibility for investigating the complaint 
of discrimination for the agency's Director of Equal Employment 
Opportunity." Investigation Manual at 23. It should be noted 
that the agency's EEO Director will be involved in the final 
agency disposition of the examiner's recommendation or, indeed, 
render the final disposition himself as the designees of the agency 
head. See Examiner's Handbook at 7. The EEO Director may also 
terminate the investigation before completion. Investigation 
Manual at 19. Fourth, "testimony" taken during the investigation 
is clearly no substitute in probative value for oral testimony in an 
adversarial forum. "In obtaining testimony, the .investigator should 
get all essential information, reduce it to writing, give the 
person being interviewed an opportunity to review the written 
statement and make any necessary corrections or other changes,

20/ (Continued)-- should contact the Equal Employment Opportunity
Office at the outset of the investigation to inform 
him that it is about to begin. investigation Manual
at 4 .
The investigator should feel free to consult the Director of Equal Employment Opportunity or the Equal 
Employment Opportunity Office (or member of their 
staffs) regarding the adequacy of the investigation. 
Investigation Manual at 12.

-46-

I



and should have him swear to, or affirm, the truth of the 

statement." Investigation Manual at 5. Moreover, the in­

vestigator is told that, "When an alleged discriminatory official 

is interviewed, the investigator should describe to the 

official the nature of the complaint and identfy the complainant. 

Id. at 8. This method of obtaining statements by an investigator 

employed by the defendant agency obviously allows maximum room 

for preservation of the status quo. The United States Com­

mission on Civil Rights has recently summarized what is wrong 

with the practice of agency investigation of discrimination 

complaints in terms reminiscent of the 1972 Congressional call 

for reform:

. . . investigations still will be conducted by
individuals from the involved agency. Whether 
agency personnel can be fully impartial and whether the use of such personnel presents an image of fairness to compalinants are serious questions. Private employers are not allowed to 
investigate complaints against themselves, and Congress now has authorized EEOC to investigate employment discrimination complaints against the State and local governments. Self-review often 
has proved to be of limited value. CSC should, therefore, reevaluate this aspect of the complaint 
system. U.S. Commission on Civil Rights, The Federal Civil Rights Enforcement Effort - A 
Reassessment 55 (1973).

-47-



In Alexander v. Gardncr-Denver Co.., suprn, 39 L.Ed.2d 
at 164 n. 19, the Supreme Court similarly criticized "the 
union's exclusive control over the manner and extent to which
an individual grievance is presented."

The examiner, according to the CSC's own Examiner's Handbook 
and Chairman, »  does not conduct an adversary proceeding.
First, notwithstanding what lawyers for the United States have 
argued, it is the position of the CSC itself that, "The hearing 
is an adjunct to the investigation." The complaint before the 
examiner may be remanded to the agency whenever "the ^ c n c ^  

has made a determination that it does not come within the 
purview of the regulations" since "acceptance of complaints 
of discrimination is an agency responsibility, and agencies make 
the determination whether complaints fall within the purview 
of the regulations." (emphasis added) Examiner's Handbook at 17. 
Second, the contest between complainant and agency is far from 
equal. The Handbook makes no provision for^supplying complainants 
with competent counsel or respresentation. See Examiner's
Handbook at 25-26. No provision is made for paying representatives 
or advisors nor is there a provision that representatives employed

21/ The United States Commission on Civil Rights expressly recommended in 1970 that this situation be rectified.
Free legal aid should be provided on request to 

all grade employees who require it. In this con­nection, CSC should take the lead in establishing 
a Govcrnmcntwidc pool of attorneys who are prepared to volunteer their services in discrimination com­
plaint cases or adverse actions involving minority 
group employees. Federal Civil Rights Enforcement 
Effort 3 58 '(1970).

-48-

f



by the agency be paid during the time spent in hearing
preparation. The agency, however, may select a representative
and advisors, who are presumably paid for their services, and in
the normal course of events lawyers are likely to be selected.
Moreover, the agency representative has access to agency records
beyond the investigation file, while the complainant representative
has no independent power of discovery or compulsory process.
Compare Examiner's Handbook at 85-86 with Examiner's Handbook

07—go. "It is undesirable for an EEO Counselor, EEO Officer,
or other EEO official to serve as either party's representative at
a discrimination complaint hearing" lest it "compromise theii
future usefulness in resolving complaints at the activity {sic]
level." Examiner's Handbook at 26. Notwithstanding the lack of
any provision for competent representation, the complainant
or his representative must make judgments that traditionally have
required the expertise of lawyers, including making pre-hearing
stipulations, negotiating admission of witnesses, direct examination
of complainant witnesses, cross-examination of agency witnesses,
and objections to admissibility of evidence. Third, in Griggs., v .
Duke Power Co., 401 U.S. 424 (1971), the Court declared that:

The Act prescribes not only overt discrimination 
but also practices that are fair in form, but discriminatory in operation. The touchstone is 
business necessity. If an employment practice 
what operates to exclude Negroes cannot be shown to be related to job performance, the practice is 
prohibited. 401 U.S. at 431.

-49-



Similarly, the* Court in NcDonnoll Dougln-n Corp. v. Crecn^ supnj.
411 U.S. at 802, stated that after plaintiff has carried his 
burden of proof of showing disparate treatment, the "burden then 
must shift to the employer to arti culate some legi tima_^,_ricm- 
discri.mi.natory reason for the employee's rejection" (emphasis added) . 
m  contrast, the CSC imposes a much less rigorous burden upon the 
agency to justify its disparate treatment of employees and gives 
the examiner, not required to be a lawyer, a standard under which 
he may exercise discretion in an arbitrary and capricious manner.

Where the i*ecord shows disparate treatment, the 
Examiner must then evaluate the evidence and assemble the facts which tend to establish a case^ free from discrimination based on the complainant's 
race, color, religion, sex, or national origin.If a reasonable and unprejudiced mind could not Tnfer from the facts so assembled that the agency 
was free from discrimination in the matter, then the~Kxamincr shoTTld make a finding of discrimination, 
(emphasis added) Examiner's Handbook at b2.

This is emphatically not Title VII law. The Supreme Court obviously
did not intend that any employer against which a prima facie case
of racial discrimination has been demonstrated be given the benefit
of the doubt, and certainly not the executive branch of the

22/federal government itself. Fourth, agency dispositions of 
discrimination complaints are ad hoc dispositions with no require­
ments of stare decisis or consistency, notwithstanding the inherent

22/ An example of how Title VII 
Griggs and Greon arc ignored excerpt from the Appeals Review 
(decided October 4, 1974) at p.

legal standards set forth in a matter of course is the following 
Board decision in Matter of Jones 
2 :

-50-



similarity of fact patterns and leqal 
examiners.

issues that come before

22/ (Continued)
AGENCY DECISION

The final agency decision, issued on March 19, 1974, 
held that the evidence of record did not substantiate 
complainant|s allegation of racial discrimination in regard to his non-selection for promotion to the posi­
tion of Architect, GS-12. However, the agency found 
that the Mobile District, Corps of Engineers had failed 
to implement the agency's affimative Equal Employment Opportunity program; that the complainant had not been provided the opportunity for maximum utilization of his education and training; and that the complainant had been subjected to a climate of racial prejudice 
in the work environment at the Mobile District. The agency also found that complainant's promotional 
opportunities had been adversely affected and that except for his race, he might have progressed under 
the Department's Career Program to the GS-12 level in the Mobile District or elsewhere in the Corps of 
Engineers. It was also the agency decision that com­
plainant was otherwise discriminated figainst in his employment situation. Based on its findings, the 
agency directed that the complainant be given continuing 
priority consideration for available GS—12 vacancies in the Mobile District, Corps of Engineers, for which he 
is qualified, until complainant is selected for promo­tion or until he declines a bona fide offer. See App. Vi.

The Appeals Review Board affirmed the Agency decision of no discrimination. In 1972, Congress had expressly warned that,
. “G Commission should not assume that employment discrimination 
m  the Federal Government is solely a matter of malicious intent on the part of individuals." Sen. Rep. No. 92-415, on S. 2515,
w u C°n9*' 1 Sc^s* at 14 (1971). Legislative History at 423;II.R. Rep. No. 92-238, on H.R. 1746, 92d Cong., 1 Sess. at 24 (1971); Legislative History at 84.

The BAR, the EEO appeals examiners, and the agencies' 
deciding officials treat each discrimination complaint on an aci hoc basis. There has not developed, nor lias 
there been any attempt to develop a systemized body of 
law, rules, criteria, or guidelines for evaluation of 
the merits of a discrimination complaint. Unchanneled discretion is allowed in describing every complaint, 
and administrative rules to prevent arbitrary and

- 5 1 -



in light of the fact that the present CSC complaint 
process falls so far short of congressional purpose, a trial 
de novo will promote proper use of judicial resources to enforce 
Title V I I .  The spectre of the federal district courts laboriously 
duplicating the worh of the CPC complaint process ad infinitum 
hardly does justice to the cooperative relationship between the 
judiciary and the executive branch Congress clearly intended to 
establish. Strict scrutiny by courts in these early days of 
an administrative process, hitherto effectively not subject to 
any gudicial overview, is surely the most significant means to 
assure that federal agencies and the CSC will fulfill equal 
employment opportunity obligations. Once it is clear that 
congress and. the courts will not tolerate discrimination in 
federal employment, the root causes of complaints of discrim­
ination in federal employment will be'attacked.

23/ (Continued)
capricious decisions are non-existent. Decision 
makers in the agencies are not bound by any require­
ment of consistency or uniformity with past 
decisions. . . .

The lack of published EEO complaint decisions 
which include the facts of each particular case, reasoned, articulated conclusions from those facts, 
and comparisons to the facts and conclusions in previous cases make it impossible for a complainant 
to assess his claim in light of prior successful or unsuccessful claims made by others and to argue 
on the basis of prior decisions upon similar facts. 
Nader Report at II-9 - III-10.

What was true in 1972 is true today.

-52-



There is little question that federal employment practices
once found discriminatory in one agency need not be fully
litigated over and over again. The unitary CSC complaint process
is leqally bound to implement judicial rulings in similar cases

24/that arise subsequently. Moreover, Rule 2 3(b) (2), Fed. R. Civ.
p., class actions will even obviate need for individual administra­
tive and judicial processing of the same complaint by similarly 
situated employees. Sec Amendments To Rules Of Civil Procedure,
39 F.R.D. 69, 102 (1966); Qatis v. Crown Zellerbach Corp., 398 
F.2d 496, 498 (5th Cir. 1960). Thus, trials de novo allow the 
court to assume its proper role in the effective enforcement of 
Title VII guarantees; otherwise federal employees will continue to 
be denied legal rights in case after case.

24/ The CSC publicly professes no less .*
The Commission is well aware of the implications 

of this provision of the act, but we do not foresee it as sending a steady stream of grievants to the courts. We welcome it as an opportunity to have the decisions in discrimination cases measured by the 
courts as to their fairness.

To be sure, guaranteed access to the courts and 
back pay possibilities may possibly mean a heavier 
volume of court cases than we have witnessed before. 
This will challenge the quality of administrative 
handling of complaint cases, and may well— as the 
legislation means it to— improve it where improvement 
is needed.

We do foresee the development of a body of legal 
precedent which will need to be followed by Federal 
appeals examiners handling discrimination complaints. 
I. Kator, Third Generation Equal Employment Opportunity, Civil Service Journal 1 (July-September,
1972) at p. 5.

-53-

r



IV.
PERSUASIVE CASELAW SUPPORTS THE REQUIREMENT 
OF A TRIAL DE NOVO IN FEDERAL EMPLOYMENT CASES BROUGHT UNDER TITLE VII

Neither this Court nor any other Court of Appeals has 
yet decided whether Title VII plaintiffs are entitled to a 
plenary judicial trial on the merits in federal employment 
discrimination cases. See, e. g., Johnson v. U.S. Postal 
Service. 497 F.2d 128 (5th Cir. 1974). However, it is clear 
that the decision below is contrary to the better reasoned 
decisions of district courts in this Circuit, Griff1n v. U .S. 
Postal Service, 7 EPD ^9133 (M.D. Fla. 1973); Jackson v. U.S.
Civil Service Comm'n, 7 EPD ^9134 (S.D. Tex. 1973); Reynolds
v. wise. 375 F.Supp. 145 (N.D. Tex. 1974), and, indeed, is 
contrary to the better reasoned decision of the same Texas 
district, Jackson v. U.S, Civil Service Comm'n, supra.

An important element in the reasoning of these district
courts is that, " . . .  had [Congress] intended that the scope
of review be less than a trial de novo —  that which is afforded
the employee in the private .sector -- it would have so indicated
since the specific words used in the statute merely refer the
government employee to the rights given to the employee in the
private sector." Jackson v. U.S. Civil Service Comm'n, supra,

15/7 EPD at p. 0756. "(T]he plain statutory language of the Act

The amendments specifically state that the newly authorized civil actions are to be 
governed by the provisions in the original

- 5 4 -



authorizing private actions wi thout restricting the forum
court to a review of the administrative record" (original

2 6/
emphasis) Reynolds v. Wise, supra, 375 F.Supp. at 3.40.

25/fCont'd.]
act. The incorporation of these original 
provisions makes it clear that the legis­lative intent was to provide the same rights and forms of relief to persons subjected to discriminatory conduct by federal agencies 
as were available to persons covered by the original act. Griffin v. U.S. Postal Service, 
supra, 7 EPD at p. 6752.

The district court in Cnrreathers v. Alexander, 7 EPD 1(9379
(D. Colo. 1974) expressly relied on Alexander v._Gardne r-
nonvor Co., supra, and McDonnell Douglas CorP. V. Gx.aQil, sunra. for the lesson that "federal courts have plena r y 
powers in Title VII cases and that an employee’s right to bring an action under Title VII is independent from and exists 
coequally with applicable state and federal statutes. We find 
of little moment, in our interpretation of Alexander̂ , the fact that the case involved a private employer defendant as dis­
tinguished from the instant case which concerns the federal 
government of the defendant employer." (original emphasis)
7 EPD at p. 7710. Compare Bowers v. Campbell, B EPD H9752 
(9th Cir. 1974) .

After examining the scheme of federal laws which seek to alleviate employment discrimination, the 
Court believes that the intent was to give all. employees —  both those who work for governmental 
agencies and those who work for private employers 
-- essentially the same rights. The Civil 
Service Commission is entrusted with broad 
powers to enforce fair employment in federal 
agencies somewhat broader perhaps than the EEOC's. However, the statute itself (42 U.S.C. 
§2000e-17(c) specifically grants the right to 
'file a civil suit and subsection 2000e-17 (d) makes applicable to such suit theprovisions governing suits filed against private employers.

- 5 5 -



These courts have also found that legislative history, 
as set forth by the Supreme Court in Morton v. Mancari, supra, 
requires what the language of §§717(c) and 717(d) so clearly 
states:

. . . the government's position ignores thereason behind the congressional action. The 
Congress, as evidenced by the legislative his­
tory of the•Act (Legislative History of the 
Equal Employment Opportunity Act of 1972, 92d
Cong. 2d. Sess., 1972 U.S. Congressional and Administrative News 1005-1054), was dissat­isfied with the way in which the Civil Service Commission was doing its job to prevent racial 
and other discrimination in the federal govern­ment. Especially disturbing was the lack of a meaningful federal review of actions taken 
by agencies which had held something less than 
true and complete proceedings and had used inadequate standards. Had Congress intended 
that the old form of judicial review remain, 
it would not have given the government em­ployee the right to a civil action. Jackson 
v. Civil- Service Comm ‘ n. , supra, 7 EPD at 
pp. 6755-56.

"Because of the defense of sovereign immunity, however, de­
cisions made within this regulatory scheme were seldom subject

26/ [Cont'd.]
The Court believes that Congress, had it intended the rights of government employees 
to sue in court to differ from those of private employees, would have clearly in­
dicated that intent. Robinson v. Klass^n,
No. LR-73-C-301 (E.D. Ark. October 3, 1974).

For discussion of inapplicability of substantial evidence 
standard of §706(2) (e) of the A.P.A., see Guild ay v..U_J>. 
Justice Dept.. 43 LW 2195 (D. Del. October 22, 1974).

-56-



to judicial review, and even if the defense was avoided the 
scope of judicial review was generally restricted to a deter­
mination of whether the agency followed proper procedures or 
whether there was substantial evidence in the administrative 
record to support the agency's findings." Griffin v. U.S. 
Postal Service, supra; Reynolds v. Wise, supra, 375 F.Supp.
at 140-49.

These courts have also recognized that the purpose of
§717 requires a trial de novo in which little weight be given
administrative proceedings.

Only if a trial de nove is mandatory will the federal employee be assured of the 
Congressional intent and that is a full, im­partial review of the case in an adversary con­text. This decision does not mean to imply that 
the record built upon the administrative level is to be disregarded. It may be introduced in­
to evidence and considered along with the other 
evidence introduced, just as the EEOC findings 
may be introduced in private sector suits. Cf.
Smith v. Universal Services, 454 F.2d 154 (5th 
Cir. 1972). The plaintiff has characterized the trial as one not duplicating the admin­istrative hearing, but as one supplementing 
that hearing, but safeguarded by use of the rules of evidence in a true judicial setting.
This Court believes tlva t Congress intended no 
less. Jackson v. U.S. Civil Service Comm'n., 
supra, 7 EPD at p. 6756.27/

The two policy arguments advanced by the Government for limiting court reivcw to the 
"substantial evidence" standard are not con­
vincing. The Government fears that its aggreived 
employees may add claims of discrimination, no



\

27/rCont'd.l
matter how frivolous, to pedestrian per­
sonnel disputes. It is not clear to this Court, however, how a requirement that the Government disprove discrimination with more than "substantial" evidence will provide a 
haven for frivolous claims. Indeed, courts have found little difficulty thus far in 
screening out pro forma discrimination claims through the normal mechanisms of the Federal 
Rules of Civil Procedure. As a further mat­
ter, the Government asserts that the standard of review in Hackley "insults the agency [the 
Civil Service Commission] Congress specifically 
designated as dealing with the problem of dis­
crimination." In the first place, Congress 
specifically provided that an aggrieved employee may seek judicial review of the agency decision 
or order without appealing to the Civil Service 
Commission. More important, this Court cannot accept the logical corollary to the Govern­
ment's argument —  that providing no judicial 
review whatsoever would be a compliment to the Civil Service Commission. What is at stake here 
is the degree of public certainty that there is 
no discrimination in federal employment.Opting for greater certainty does not disserve 
the Civil Service Commission. Guilday v, U.S. 
Justice Dept., supra, 43 LW at 2190.

-5 8 -



V.
THE RIGHT TO A TRIAL DE NOVO IS NOT WAIVED 
WHEN THE EMPLOYEE ELECTS TO HAVE A FINAL AGENCY DECISION WITHOUT UNDERGOING AN ADMINISTRATIVE HEARING, AS SPECIFICALLY 
PROVIDED BY §717 (c)

§717 (c) expressly provides that, " . . .  after one 
hundred and eighty days from the filing of the initial charge 
with the department, agency, or unit . . . , an employee or
applicant for employment, if aggrieved by the final dispo­
sition of his complaint, or by the failure to take final 
action on his complaint, may file a civil action as provided 
in Section 706." The face of the statute thus makes clear 
that complete exhaustion of available administrative remedies 
is not required. See supra at pp. 6-8. Depriving plaintiff of a 
trial de novo or remanding for an administrative hearing for timely 
exercise of the statutory right to go to court would imper­
missibly contravene the plain intent of Congress to provide 
a plenary judicial trial for complaints of federal employment 
discrimination. See McDonnell Douglas Corp. v. Green, supra,
411 U.S. at 798-99; Alexander v. Gardnor-Denver Co., supra,
39 L.Ed.2d at 65 n.21. Legislative history is in accord 
with clear statutory language. For example, §717 (c) was 
explained in the following terms after the conference:

The provisions of Section 706(f) through (k), 
concerning private civil actions by aggrieved 
persons, are made applicable to aggrieved 
federal employees or applicants for employment.

-59-

r*



Such persons would be permitted to file 
a civil action . . . after 180 days from thefiling of an initial charge with the agency, or the civil Service Commission. Legislative 
History at 1851.

"[I]t is clear that there can be no prospective waiver 
of an employee’s rights under Title VII”, Alexander..v. Gardner- 
penver Co., supra., 39 L.Ed.2d at 160. In McDonnell Douglas 
Corp. v. Green, supra, 411 U.S. at 798-99 and Alexander_v. 
Gardner-Dcnver Co., supra, 39 L.Ed.2d 157-58, the Supreme Court
construed Title VII to require trials de novo after plaintiffs, 
as here, satisfied express statutory jurisdictional prerequisites. 
The Supreme Court rejected waiver arguments in both these 
cases, the only opportunity the court has had to deal with such
arguments in the Title VII context.

Even if we assume arguendo that waiver of the right to 
plenary trial on the merits is possible under certain circum­
stances, in this case plaintiff had absolutely no notice that 
by foregoing an administrative hearing and going directly into 
court, he would waive or limit any right to a plenary judicial 
proceeding. Indeed, the "Notice of Proposed Disposition of Dis­

crimination Complaint" recommended by the CSC for the use of 
agency EEO officers, Attachment 5 to FPM Letter 713-17, see 
Appendix VII, contains no such notice of waiver. There was, 
in short, no requisite knowing and intelligent waiver of rights.

-60-

r'



The rule lias been clear, at least, since Johnson v._Zerbst_,
304 U.S. 458, 464 (1938), citing Aetna Ins. Co.,, v. Kennedy,
301 U.S. 389, 393 (1937); Hodges v. Easton, 106 U.S. 408,
412 (1882); Ohio Bell Telephone Co. v. Public Utilities,
Comm., 301 U.S. 292, 306-07 (1937), that, "'courts indulge
every reasonable presumption against waiver' of fundamental 
constitutional rights and that we 'do not presume acquiescence 
in the loss of fundamental rights. A waiver is ordinarily 
an intentional relinquishment or abandonment of a Known 
right or privilege". The government actually has misled com­
plainants by not informing them that civil action rights are 
diminished if different procedural alternatives are pursued.
See, for example, the table of Discrimination Complaint Pro­
cedures and accompanying explanatory statement given to all 
federal employees to apprise them of their EEO rights,
Appendix VIII. Thus even if we assume that a trial do novo 
may be waived, the government cannot assert waiver in this or 
other cases as a matter of law, in light of present admin­
istration of the CSC complaint process.

In fact, the waiver argument is a red herring. In 
this case the government wishes to prevent a plenary judicial 
trial on the merits when an administrative hearing has not 
been held. However, the government also argues in cases in which

-61-



an administrative hearing has been held that no trial dê  novo 
can be held. In this second set of cases, the government's 
theory is that Congress "intended to afford a federal em­
ployee a full hearing in the District Court only when he 
was not afforded an opportunity for a full hearing before the 
agency, i. e., only when the jurisdictional prerequisite for 
his civil action was agency inaction for 180 days." Brief 
for Appellee, Hacklcy v. Johnson, No. 73-2072 (D.C. Cir.
1974) at 43. It is clear that the government simply wishes 
to deprive all federal employees subject to discrimination of 
their only opportunity for a truly "fair and impartial hearing" 
no matter what the circumstances.

-62-



C O N C L U S I O N

For the reasons set forth above, the Court should 
reverse the decision of the district court of September , 
1974 and remand this case with instructions for a trial
de novo.

Respectfully submitted,

JACK GREENBERGJAMES M. NABRIT, III CHARLES STEPHEN RALSTON 
MORRIS J. HALLER BARRY L. GOLDSTEIN10 Columbus Circle

New York, New York 10019

Attorneys for the N.A.A.C.P. Legal Defense and Educational Fund, Inc.

- 6 3 -



CERTIFICATE OF SERVICE

I hereby certify that on this 30th day of
December, 1974, copies of Brief For N.A.A.C.P. Legal 
Defense and Educational Fund, Inc. as Amicus Curiae 
were served on counsel for the parties by United States 
mail, air mail, special delivery, postage prepaid, 
addressed to:

David T. Lopez, Esq. 
4809 Montrose Boulevard Houston, Texas 77006

Jack Shepherd, Esq.
Chief Assistant United States Attorney
Southern District of Texas
12000 Federal Building
515 Rusk AvenueHouston, Texas 77002

Attorney for Amicus Curiae



A P P E N D I X  I
Attachment 1 to FPM Ltr. 713-17

Tart 713 —  EQUAL OPPORTUNITY

(Picsenl regulations an* shown in right-hand column -- deleted material 
is bracketed; added material is shown in left-hand column)

SUUPAHT A. IBF.SF.HVEDJ
SimiV.HT II. r.QVAI. Orl’OHTl NtTY FmiOl'T 
REGARD TO HACK. COI.OH, IU.I.1CION. SEX. 

Ol! NATIONAL ORIGIN
General Frovi$ion»

Sec.
713 201 Purpose find applicability
713.202 General policy
713.203 Agency program
713.204 Implementation of agency program
713.205 Commission review and evaluation of agency

program operations

A frn ry  Ref o la t ion t f o r  I'uM-rcting 
Com pla in tf  of D itc r im ina t ion

713.211 General
713212 Coverage
713.213 Precornplaint processing

* 7)3.214 Piling and presentation of complaint
713.215 Rejection or cancellation of complaint 
713.210 Investigation
713.217 Adjustment of complaint and offer of hearing
713.218 Hearing
f t o . i l *  nciuilunsnip lo ouicr agency uppcnuie pro­

cedures
713.220 Avoidance of delay
713.221 Decision by head of agency or designee
713.222 Complaint file

Appeal to the ComrnUtion

713.231 Knlitlernent
713.232 Wharf to appeal
713.233 Time limit
713.234 Appellate procedures
713 235 f  Appellate rc\ic'i]by the Commissioners

Review 7l3.23G Relationship to other appeals

Report* to the CtfmsuMsaa

713.241 Reports to the Commission^.
on compldints

'OlL1 d-l’nriy All opat I nns
713.251 Third-party allegations ol discrimination 

Freetiom from Kept' i '■ -vI_or 1 n t it f flfncp
713.261 Freedom from reprisal
713.262 Review of allegations of reprisal 

Remedial AcLiuuii
713.271 Remedial actions

Right To File a Civil Action . .
713.281 Statutory right
713.282 Notice of right
713.283 Effect on administrative processing

ID -



Attachment 1 to PPM Lir. 713-17 (j)

J 86 Stat.

decision or other final action on

S t l l l 'A K T  C. M IN O lI l l  Y |* S T A T IS T ! !  S
s\ s 1 1 . vi

713.301 Applicability 
713 302 Agency syctrms

s i nf*.\UT i>. K . iru .  o r ro i tT i 'M T V  m ituoi t  
k k c u u) to muTics, m uin u. status, on

PH YS ICAL  HANDICAP

713.<01 Equal opportunilv without regard to politics, 
marital statu*, or physical handicap 

Actiiohitv . The provisions of this part 713 issued
__under '• I '.S.C. 1301, 3.101. 3302. 7131-7131, 730 Tl

L.O. 10.i7< . 3 t i l t ,  1 ‘Pi-1 -1 OoS Comp., p. 218, l i t ) .  
11222, 3 C l  It l o o t -1903 Comp., p. 300, K O  11478 
3 CPU  19G9 Comp.)

S U BPA RT  A. [RESERVED]

SURRART u. EQUAL  O P P O R T U N I T Y  
W IT H O U T  REGARD TO  HALE, COLOR, 
R E L IG IO N ,  SEX, OR N A T IO N A L  O R IG IN

G enera l P rov is ions

See. 713.201 Purpose and applicability, (a) 
Purpose. This subpart sets forth the peculations 
under which an agency shall establish a con- 
tiuuinp affirmative pro;;rnin for equal oppor- 
tuiiity in employment and personnel operations 
without regard to race, color, religion, sex, or 
national origin and under which the Commission 
will review tin agency's program and entertain 
an appeal from a person dissatisfied with an 
agency’s (processing of] his complaint of dis­
crimination on grounds of race, color, religion, 
sex, or national origin.

(L) Applicability. ( l )  This subport applies (i) 
to military department as defined in section 
1(L of title 5, United States Code, executive 
agencies (other than the General Accounting 
Office) as defined in section 103 of title 5, United 
States Code, —>tho United States Postal Serv­
ice, and the Postal Rule Commission,<- and 
to the employees thereof, including employees 
paid from nonappropriated funds, and ( ii) to 
tlio.-.c portions of the legislative and judicial 
branches of the federal Government and ihe 
government of the District of Columbia having 
positions in the competitive service and to the 
employees in those positions.

(2) I his subpart docs not apply to aliena 
employed outside the limits of the United 
States.

2 a -



Attachment l to Fi'M Ltr. 713-17 (3)

Sec. 713.202 General policy. It is the polict 
of the Government of tho United States and 
of the government of tin- District of Columbia 
to provide equal opportunity in employment 
for all persons, to prohibit discrimination in 
employment because of rucc, color, religion, 
i>cx, or ntitionuI origin, and to promote the full 
realization of equal employment opportunity 
through u continuing nflinnativc program m 

' each agency.
Sec. 713.203 Agency program. The head 

of each agency shall exercise personal leadership 
ill establishing, maintaining, and carrying out 
ft continuing ftfiirmalive program designed to 
promote equal opportunity in every aspect of 
agency personnel policy mid practice in the 
employment, development, advancement, and 
treatment of employees. Under the terms of its

and assure, that the principal and 
operating officials responsible for 
carrying out the equal employment 
opportunity program meet established 
qualifications requirements

program, an agency siialijT to the maximum 
extent possible):

(ft) Provide sufficient resources to administer 
its equal employment opportunity program in a 
positivc and effective manner^,

(b) Conduct a continuing campaign to eradi­
cate every form of prejudice or discrimination 
bftsed upon rare, eolor, religion, sex', or national 
origin, from the agency’s personnel policies and 
practices and working conditions, including 
disciplinary action against employees who 
engage in discriminatory practices;

(c) Utilize to the fullest extent the present 
skills of employees by all means, including the 
redesigning of jobs where feasible so that tasks 
not requiring the full utilization of skills of 
incumbents are concentrated in jobs with lower 
skill requirements;

(d) Provide the maximum feasible oppor­
tunity to employees to enhance their skills 
through on-the-job training, work-studv pro­
grams, and other training measures so that they 
may perform at tluir highest potential and 
udvence in accordance with their abilities.

(e) Communicate the agency’s equal em­
ployment opportunity policy and program end

its employment needs to all sources of job 
candidates without regard to rate, eolor. re­
ligion, sex. or national origin-, and solicit their 
recruitment a—istance oil a continuing basis.

3a -



Attachment 1 to FPM Ltr. 713-17

1 abor

as m a n y __ _______________________

, F e d e ra l ” ^oinen1̂  "Program ________ .
Coordinators, and other persons

(f) Participate at the community level with 
other employers, with schools mul universities, 
and with other public nnd privutc groups in

* cooperative action to improve employment 
opportunities nnd community conditions that 
nflect cmployubility;

(g) Review, evaluate, nnd control numa- 
perial anil supervisory performance in such u

'manner as to insure a continuing affirmative 
application nnd viperous enforcement of the 
policy of equal opportunity, and provide 
orientation, training, and advice to munapers 
and supervisors to assure their understanding 
and implementation of the equal employment 
opportunity policy and program;

(ii’) Provide recognition to employees, super­
visors, managers, and units demonstrating 
superior accomplishment in equal employment 
opportunity;

(i) Inform its employees and recognized- 
__£uiiployco}organizations of the affirmative equal

employment opportunity policy and program 
and enlist their cooperation;

(j) Provide for counseling employees and 
ttjjjimunib v, m; ucijcvc uicj nine uccu uis- 
criminated against because of race, color, 
religion, sex. or national origin and for resolving 
informally the matters raised by them;

(k) Provide for the prompt, fair, nnd impar­
tial consideration and disposition of complaints 
involving issues of discrimination on grounds of 
race, color, religion, sex, or national origin; and

( l )  Establish a system for periodically evalu­
ating the effectiveness of the ag-cncy’s overall 
equal employment opportunity effort.

Sec. 713.204 Implementation of agency pro­
gram, To implement the program established 
under this subpart, an agency shall:

(a) Develop the plans, pro ures, and 
regulations necessary to carry out its program 
established under this subpart;

(b) Appraise its personnel operations at 
regular intervals to a.ssuro their conformity 
with the policy in section 713.202 and its

program established iu accordance with section 
713.203;

(c) Designate a Director of Equal Etnploy-
___merit Opportunit vf/and*^uc!:J Equal Employ­

ment Opportunity OMi< vis [anil] Equal Employ-
__nu*nt t );qu»ri '.nitty__C Vmn .dors,, as may bo

neccssury, to assist the bead of the agency to 
carry out tho functions described in ibis sub-

4a_



and the qualifications of the 
persons so designated

nat lonal and regional equal 
employment oppoitunity

%

complai nts

subject to section 713.251,

Attachment 1 to FI’M bit 713-17 < ̂  >

par. i„ «U o r f .n i« . . »n . l
locut urns 

i-.tor

n> Employ m.Mil Opportunity. the ^ '1'"*'
Employment Opportunity 0lll,er-
Equal' Employment Opportunity (.nun-cloj,
I S h he subject to review by the Co.n.ne,
The Director of Equal Employment Oppor­
tunity shall be under the mimcd.ate super­
vision of the head of his agency, am shall he 
riven the ...nl.ority necessary to enable him to 
carry out his responsibilities under tire r e l a ­

tions iu this subpart; t- i ...
(d) Assign to the Director of K«junl Employ

ment Opportunity the (mictions, o f ;
(1) Advising the head of Ins agenev u.th 

respect to the p .y .a n i tm n ^ . ls n s ,  p n ^ lu r c s  
rcimlaUiins^ reports, and other \ m  / *  I
taining to the policy in section * V 1
agency program required to ho e.s,abashed
under section 7 hi.“20.1; ,

(2) Evaluating from mno 1° ,um‘ t,u 
sufficiency of the total agency «
equal emph.vmcnt opportunity m l  np rim, 
thereon to the head of the agency "ith recom­
mendations as to any improvement ,,r cor.ection 
needed, including remedial o r_^ ,p lm ar> -  ^

rc^;:;i;-of;;^iathrirr^onsib,u.^
H) When uuthori/.ed by the h< ad o 

agency, making changes in programs and 
procedures designed to eliminate disc,.minatory 
practices and improve the agency's program fo 
equal employment opportunity;

•i- t ...... . rtllll.Tl(-, l>y an Equal 
ounselor, >f any

(4 ) Providing for couiisclm 
Employment Opportunity l 1 
aggrieved employee or applicant for employ 
nrciit wlm believes that he has been dm. rim - 
tinted against because of race, color, rehpon 
sex, or national origin ami for attempting f  
resolve on an informal basis the matter r a w  
by the employee or applicant before a com­
plaint of discrimination may be filed under

‘ ^ ’ Ividlng f -  the receipt and investig.-
f i i  qLmdtuduwlCvXUirbunQnf dmcnnunau.m
in^'ersonnel matters "ithin the agency, swlqc. .
t0 sections 7h< 211 through , h i- ’ -‘ J.

(G) lV.vidu.g for the receipt. .nvest,„u.um. 
and disposition of general allegations by oif. t.t-

tions'or other third paM.es of aiscr.m,m. mn
pemoimel l l “ rl

are unrelated l- an mdivi.lmhd comp ««n ‘
discriniin.it,on subject to -returns .h>-t 
through 7 hi 222. under procedures delenmii . 
hv the agency to he upproprmle. "  ith noid. • 
lion of dreixioii to the party. s.ibiniUiur 
allegutionj

5a _



Attachment 1 to FPM i,tr. 713-17 (6)

(u) Insure that equal oppor­
tunity for women i s an integral part 
of ftie agency's overall program by 
assigning to the Federal Women's 
Program Coordinators the function of 
advising the Director of Equal 
Emnlovment Onoortunftv on matters 
affecting the employment and advance­
ment of women;

(7) When Authorized by tho head of tho 
• Agency, making the decision under section
713.221 for tho bond <•{ tlui agency on complaints 
of discrimination and ordering such corrective 
mcusurcs as he may consider necessary, in­
cluding the recommendation for such disciplin­
ary action as is warranted l>y the circumstances 
when an employee iias been found to have en­
gaged in a discriminatory practice, and

(8) When not authorized to make tho de­
cision for tho head of the agency on complaints 
of discrimination, reviewing, at his discretion, 
tho record on any complaint before tho de­
cision is made under section 7.13.221 und making 
such recommendations to the head of th* agency 
or his designee as ho considers desirable, in­
cluding tho recommendation for such disciplin­
ary ac'ion nr is warranted by the circumstances 
when an employee is found to have engaged in a discriminatory pructicc;

—>

(f) Publicize to its ' .____
employees and post permanently 
on official bulletin boards:

(1) The names and addresses of 
the Director of Equal Employment 
Opportunity and the Federal Women's 
Program Coordinators;

(2) The name and address of the 
appropriate Equal Employment 
Opportunity Officer;

and

/To) Publicize to its employees:
(1) Tho name and address of tho Director of 

Equal Employment Opportunity;
(2) Wlioro appropriate, tho name and ad­

dress of an Equal Opportunity Ofiicor; ur.d]

(3) Tho name and address of the Equal 
Employment Opportunity Counselor and tho 
organizational units ho serves; his availability 
to counsel an employee or^qualilicdj applicant 
for employment who behoves that ho has boon 
discriminated against because of rare, color, 
religion, sex, or national origin; and tho re­
quirement that an employee or Jqiiulincn) ap­
plicant for employment must consult the Coun­
selor as provided by section 713 213 about hiv 
allegation of discrimination because of race, 
color, religion, sox. or national origin before a 
complaint as provided by section 713.214 may 
be filed; ^

6a-



- \ o •

Attachment 1 to PPM Ltr. 713-17 (7)

(A) Time limits for contact- —---- -~y
ing an Lqual Employment Opportunity Counselor;

(R> reasonable accommodations to 
the religious needs of applicants and employees, 
including the needs of those who observe the 
Sabbath on other than Sunday, when those 
accommodations can he made/by a grant of 
leave, a change of a tour of duty, or other 

.means) without__undue J interference with] the

— program of equal employment opportunityJ  

---->

(by substitution of another __________
qualified employee, 
hardship o n ______________ _________

If an agency cannot accommodate n n ______business of the age:iev*̂ *r with the rights of
employee or applicant:, it has a duty in a other applicants or employees; endj*-
comp la in t arising under this subpart to ___jfgj Make readily available to its employees a
demonstrate its inability to do so; copy of its regulations issued to csrrv out its

( h ' ___________________________
; and ___________ ____________________

(1) Submit annually for the ----
review and approval of the Commission 
written national and regional equal 
employment Opportunity plans of action.
Plans shall he submitted in a format 
prescribed by the Commission and shall 
include, but not be limited to --

tii Provision tor the establishment 
of training and education programs designed 
to provide maximum opportunity for employees 
to advance so as to perform at their highest 
potent ia 1;

(2) Description of the qualifications, 
in terms of training and experience relating 
to equal employment opportunity, of the 
principal and operating officials concerned 
with administration of the agency’s equal 
employment opportunity program; and

(3) Description of the allocation of
personnel and resources proposed by the ^ro- 713.205 Commission review and
agency to carry out its equal employment evaluation of agency program operations. The 
opportunity program. Commission shall review and evaluate agenev

program operations periodically, obtain such 
reports as it deems necessary, ami report to the 
President as appropriate on overall progress. 
l\hen it finds that an agency’s program opera­
tions are not in conformity with th<- police >ct 
forth in section 713,202 and the regulations m 
this subpart, tlie Commission shall require im­
provement or corrective action to bring the 
agency’s program operations into conform­
ity with this policy and the regulations in this 

_____ Mihpnrt »The head of each department and 
agency shall comply with the rules, 
regulations, orders, and instructions 
issued by the Commission.

_ 7a-



. \J ■

Attachment 1 to H1TI Ltr.  713-1? (S )

r

with  that agency

(Section 713.251 applies to general 
allegations by organizations or other 
third parties.)

issues in

issues in

21 calendar days

Agency  I t cp n la l i o n *  f o r  1‘roccss in -  
( 'oni/ ita ints  <«/ D i s c r i m i n a t i o n  

See. 713‘i l l  General. An agency shall ensure
that its regulations governing the processing <>f 
complaints' of discrimination on grounds of race, 
color, religion, sex, or national origin comply 
with the pr nciplcs mill requirements in sections
713.212 though 7)3.222.

Sec. 713.212 Coverage, (a) The agency shall 
provide in its regulations for the aeieplnnce of 
n complaint from any aggrieved employee or 
applicant for emp loym en t h<> believes that. i>0 ■ 
hits been discriminated against l era use of r.u c. 
color, religion, sex. or national origin. A com­
plaint may also he filed by an organization for 
the aggrieved person with his consent.

(b) Sections 713.211 through 713.222 do not 
apply to the consideration by an agency of a 
general allegation of discrimination by an or­
ganization or other third party which is niyai- 
laU l̂ to an individual complaint of discrimina­
tion subject to sect ions 7 13.211 through i 13.

See. 713.213 Precomplaint processing, (a) 
An ngenev shall require that an aggrieved person 
who bclievc-s that he has been discriminated 
against because of race, color, religion, sex, or 
national origin consult with an l-quid 'employ­
ment Opportunity Counselor when iie wishes 
to resolve the matter. The agency shall require 
tho Kqtiul Employment Opportunity Counselor 
to make whatever inquiry lie believes necessary 
into the matter; to seek a solution of the matter 
on an informal basis; to counsel the aggrieved

__person eoiieermn*/ thefuiems of| the matter, to
keep a record of his counseling activities so ns 
to brief, periodically, the lsqual employment 
Opportunity Officer on those activities; and. 
when advised that a complaint of discrimination 
has been accepted from nn aggrieved person, 
to submit a written report to the liquid em ­
ployment Opportunity Officer, with a copy to 
the aggrieved person, summarizing his notions 
and advice both to the agency and the aggrieved 
person concerning I he /merits n j j  tho matter. 
TIuTKqmd employment Opportunity Counselor 
shall, insofar as is praeliruhle, conduct his Imal 
interview with the aggrieved person not later 
than jl .r, workdaysjafier the date on which the

n

- 8a-



Attachment 1 to FPM Ltr. 713*17 (9)
If the final interview is not concluded —  
yithin 21 days and the matter has not 
rcviously been resolved to the satis­

faction of the aggrieved person, the 
aggrieved person shall be informed in 
writing at that time of his right to 
file a complaint of discrimination.
The notice shall inform the complainant 
of his right to file a complaint nt 
any time after receipt of the notice 
up to 13 calendar days after the final 
interview (which shall be so identified 
in writing by the Equal Employment 
Opportunity Counselor) and the approprlate 
offirial with whom to file a complaint.
The Counselor shall not attempt in any 
way to restrain the aggrieved person 
from filing a complaint.

(b) The agency snail assure that full -----
cooperation is provided by all employees
to the Equal employment Opportunity Counselor 
in the performance of his duties under this 
sectioif.

( c )  -----------------------------------------------------------------------------

and be signed by the complainant. 
The complaint may be delivered in 
person or submitted by mail.

3 0 ---------------------:-------

or his representative 
an appropriate official

(2) The appropriate officials to 
receive complaints are the head of the 
agency, the agency's Director of Equal 
Employment Opportunity, the head of a 
field installation, an Equal Employment 
Opportunity Officer, a Federal Women's 
Program Coordinator, and such other 
officiate as the agency may designate 
for that purpose. Upon receipt of the 
complaint, the agency official shall 
transmit it to the Director of Equal 
Employment Opportunity or appropriate 
qua 1 Employment Opportunity Officer 

who shall acknowledge its receipt in 
accordance with subparagraph (3) of 
this paragraph.

matter was called to his attention by the 
aggrieved person. /The Equal Employment 
Opportunity Counselor shall advise the ag­
grieved person in the final interview of his right 
to file a complaint of discrimination with the. 
organization’s Equal Employment Opportunity 
Officer if the mutter has not been resolved to his 
satisfaction and of the time limits governing the 
acceptance of a complaint in section'713.2 lCJ 
The Equal Employment Opportunity Counselor 
shall not reveal the identity of nil aggrieved 
person who has come to him for consultation, 
except whon authorized to do so by the ag­
grieved person, until the agency has accepted u 
complaint of discrimination from him.
__[̂ hjj The Equal Employment Opportunity
Counselor shall he free from restraint, inter­
ference, coercion, discrimination, or repriscl in 
connection with the performance of Lis duties 
under this section.

Sec. 713.211 Filing and presentation of 
complaint, (a) T i m e  l im i t e . (1) An agency shall 
roquiro that n complaint be submitted in writing 
by the complainant or his representative)’! ho 
agency may accept the complaint for processing 
in accordance with this subpart only if—

(i). the complainant brought to the attention 
of the Equal Employment Opportunity 
Counselor the matter causing him to 
believe he hod been discriminated against

____ IL'Jililil1 ;J calendar days of the date of
that matter, or, if a personnel action, 
within [l.'>) calendar days of its effective 
dnlcf jnnd

(n) tiic complainant ̂ submitted bis written
____ cci:n;ilc.1111 to I die Equal Employment,

Opportunity Officer) within 1.3 calendar 
days of the date of his final interview 
with the Equal Employment Opportunity 
Counselor.

------ >



Attachment 1 to FPM Ltr. 713-17 (10)

(3) A complaint shall bo deemed filed 
on the date It is received, if delivered 
to an appropriate official, or on the date 
postmarked if addressed to an appropriate 
official designated to receive complaints. 
The agency shall acknowledge to the com­
plainant or his representative in writing 
receipt of the complaint and advise the 
complainant in writing of all his adminis­
trative rights and of his right to file a 
civil action as set forth in section 713.281, 
including the time limits imposed on the 
exercise of these rights.

(A )

The head of the agency or his designee 
may reject a complaint which was not 
timely filed and shall reject those 
allegations in a complaint which are 
not within the purview of section 
713.212 or which sot forth identical 
matters as contained in a previous 
complaint filed by the same complainant 
which is pending in the agency or has 
been decided by the agency. He may cancel 
a complaint because of failure of the 
complainant to prosecute the complaint.
He shall transmit the decision to reject 
or cancel by letter to the complainant 
and his representative.

and of his right to file a civil action 
as described in section 713.281.

1________

1(2 ) }  The iigctiey shall extend the time limits 
in this section (i) when the rmnplainnnt shows 
that lie wns not notified of the time limits and 
was not o.demise aware of ihem, or that he 
wns prevented by eiivumsttuices beyond his 
control from submitting the matter within the 
time limits, or (ii) for other reasons con .idered 
sufficient by the agency.

(b) P r e s e n t a t i o n  o f  c o m p l a i n t  At any st age  
in the presentation of a complaint imludm 
tlie counseling stage under section 713.213. tin 
complainant {shall he free from restraint, inter-
id i*ik C| it'vt rum, «m< i iitini(iti<Mi, «»» «* • ••, M . l|
shall have the right to he accompanied, repre­
sented, and advised by a rrpi esentnt i vc of his 
own choosing. If t he  complaimu.i is an employee 
of the agency, l.e shall have a reasonable amount 
of official time to present fiis complaint if fie is 
otherwise in an active duty status. If tfie com­
plainant is an employee of (fie agency and fie 
designates another employee of tfie agency as 
his representative, tfie representative shall  [lie 
free from restraint, interference, coercion, dis ­
crimination, or reprisal, and shalTJfiavo a iea-.oit- 
iiblc amount of official time, if fie is otliciwise m 
an active duty status, to present tfie complaint.

Sec. 713.215 Rejection or cr.ncellr.tton of 
complaint, f\\ lien tfie fiend of tfie ngonev, or 
liis designee, decides to reject a complaint fie- 
raiise it was not timely filed or because it is 
not within tfie purview of section 713.212 or to 
cancel a complaint ficenitsp of a holme of the 
complainant to prosecute tfie complaint or be­
cause of a separation of the complainant which
is not. related to fiis complaint, he shall transmit 
tfie derision by letter to the complainant am. 
fiis representative^] ->Tlte decision letter -hull 
inform the complainant of bis right to appeal 
the decision of the agotiev to the (lommi'Miin 
and of the time limit within wlm li the appeal 
may lie mi Ini ii I i is![

10a-



Attachment 1 to FPM Ltr. 713-17 (11)

See. 7Ki.'2Mi Investigation. (u) Tim Equal 
Employment Opportunity Ollirer shall advise 
the Director of Equal Employment Oppor­
tunity of the acceptance of a complaint. The 
Director of Equal Employment Opportunity 
shall provide for the prompt investigation of 
the complaint. The person assigned to mvesti- 
gnte the complaint shall occupy a position in 
the agency which is not, directly or indirectly, 
under the jurisdiction of the head of that, port 
of the agency in which the complaint arose. 
The nj:eiicy shall authorize the investigator to 
administer onths and require that statements 
of witnesses shall be under ont'u or affirmation, 
without n pledge of confidence. The investi­
gation shall include a thorough review of the 
ciwumst-.iices under which the nlleped discrimi­
nation occurred, the treatment of members of 
the complainant's group identified by his com­
plaint as compared with the treatment of other 
employees in (lie organizational segment in 
which (lie alleged discrimination occurred, and 
any policies and practices related to the work 
situation which may constitute, or appear to 
constitute, discrimination even though they 
have not oecn expressly cucti ny me com­
plainant. Information needl'd for an appraisal 
of the utilization of mein tiers of the complain­
ant’s group ns compared to the utilization of 
persons outside-the complainant's group shall lie 
recorded in statistical form in the investigative' 
file, hut specific information ns to a person’s 
membership or iioumemhership in the com­
plainant's group needed to facilitate an adjust­
ment of the complaint or to make an informed 
decision on the complaint shall, if available, he 
recorded by name in the investigative file. i As 
used in this subpart, the term ''investigative 
file” shall mean the various documents and 
information acquired during the investigation 
under this section—including affidavits of the 
complainant, of the alleged discriminating offi­
cial, and of the witnesses and copies of. or 
extracts from, records, policy statements, or 
regulations of the agency--organized to -how 
their relcvnme to the complaint or the general 
environment out of winch the complaint uro-e.) 
If necessary. the investigator may obtain infor­
mation regarding the membership or noninem- 
bership of a person in the complainant's group 
by asking each person concerned to provide 
the informal mu voluntarily: he shall noi require 
or coerce an employee to provide this informa­
tion.|l’he agency shall furnish the complainant 
or Ins teprcseniativc a copy of the investigative
file J

1 1 a-



'U l achincn i ' Fl’M U r .  713-17 (12)

Tor this purpose, tin1 Agency shall 
furnish the complainant or his 
representative n copy of the in­
vestigative file promptly after 
receiving it from the investigator, 
and provide opportunity for the com- 
plain.ant to discuss the investigative 
file witli appropriate officials.

U  the agency does not carry out, or __
rescinds, any action specified bv t u
l< m adjustment for any reason
not attributable to acts or conduct of 
110 co">Plainant, the agency shall, upon 
the complainant's, written request, rein- 
£>tate the complaint for further process- 
ing from the point processing ceased under 
the terms of the adjustment.

(l>) The Ditector of Kqual Kmplovnient Op-
........... . 511,1111 orrunge lo furnish m the person
conducting the investigation u written nutItori- 
zntion (1) to investigate all aspects „f cum- 
plrnnts of discrimination. (2) to require all 
employees of ilie agency to cooperate with him 
in the conduct of the investigation. „nd t3; to 
teqtiiie employees of the agency having anv 
knowledge of the matter complained ,.f to 
furnish testimony under oath or a/lninath.ii 
without a pledge of eontidenee.

See. 71.( 217 Adjustment, of complaint and 
offer of hearing. th e  agon, y -hall proode. 
mi opportunity for adju-tment of the eomplamt 
° "  " "  ‘ "humal ba>is alter the romplainant ha, 

JTv.ewed l_he_i„ v c-l iea live f i lc^ f adjustment 
of the eomplamt i, arrived al, (he tcim, of t|„. 
adjustment shall he reduee.l to writing ll!(d 
made part of the complaint file, with a copv of 
the terms of the adjustment provided the 
coiniilainani

<1> of the proposed disposition of 
the complaint, (2) of his right to “ 
a hearing and decision by the agency 
head or his designee if he notifies 
the agency in writing within 15 
calendar days of the receipt of the 
notice that he desires a hearing, and 
J3) of his right to a decision by 
the heud of the agency or his designee 
without a hearing.
15-day

(h) If an adjustment of the complaint i, not 
arrived at, the complainant shall he notified m 

I—— ' he proposed deposition thereof 
In that notice, the agency shall advise the co.u- 
phnmmt of ->l,i, ,-igln to a hearmg will, a 
•subsequent decision by the head of the agency 
or Ins designee and hi-right to such a «l.-< i-T..u<- 
'Vlll" >,"  il bearing. The agelicv shall allow the 
Coinpliiinuiit seven calendar day., f , r e c e i p t  
of the notice lo notify the agency whether or 
not he wi-hes to have a hearing^

(c) If the complainant fails lo notify the

--^XUC.Z. Xtf In- wit Ion i In* f j - i i av | period
pre-erthed m paragraph < h> of i|„- -eetnm the 
•'l>|..op,,H,e Kqu.d Kmplovmen, Oppottmti.v 
, . ‘ 1 “doft 'he disposition of i he com-

l " UfU l " " l M,'Cil m  .......... e >enr to the com-
P u'lnmt umler paragraph ( l „  „ (  this .. ........
the decision of ,|ir agency ...... . eomplamt
When delegated the ami.... . llt;lkl. „ ,
moo for .he head ..f tll0 „n.ie, .1.... ,
..........When this Is done, the



Attachment 1 to Fl’H Ltr .  713*17 (13)

and of his right to file a civil 
action as described in section 
713.781.

Conij' 1 ainl s 
a complaints

complaint c

a complaints

complaints
complaints

complaints

complaints

KinploVincnf Oppoi | unit v (Miner shin! Irmis- 
lint llie deci-ion In litter m the < omphiliuiitt 
■mil In-, i epi e-ent ill It e which *.111111 inform the 
<-< ■ 1111 ■) ti 111 :i 111 uf his iil'IiI nf up pen I In the (.‘oin- 
niis-i.in mnl l lie lime limit applirnhle tlierel'//1 f 
the Kfjtnil Kiiiplnymeiit Oppnrinitity Olhcer 
lines lint i--Mic n derision under this paragraph, 
the cninplain I , together w it !i tlie eoiiiphunl file, 
sliitll he forwarded In the heiul of the agency, 
or In-, designee, for decision under section 
71.V221.

See 7 I -I I s Hearing. fa i /. I/j/» o/s/r j a m  in< r .

I lie heal III" sh.ill he iictli h\ .̂l II* appeal-^ C\- 
■iiiuuer u Im miisi lie an etnplovee of ntiother 
ugenry except when the agonry in whirl) (lie 
romp!.not arose is ( 1) the go\ eminent of the 
District of (.'.iliinihi.t or 17?> an aeeiiry whieii. 
by reason of law. is prevented from divulging 
informuiion concerning the matter complained 
of ton person who luis not received the security 
clearance required hy thai agency, in which 
event the agciu y shall arrange with the C’niu- 
missiou for the selretlon of an impartial em­
ployee of the acenry in - m  o u»fa ppe.il-J ex­
it mute”  TFor puipo-es ol this paragraph. the
i \ . . f i v. r  : . * » . . i i. ." kl......... **• *"*•*•* ‘ * *........V.vs. .. ••
single agency l The agency in which the com­
plaint aio-e shall reipie-t the ( ’oimae-iuii 'n 
supply the n..me i f  /an appeal J  examiner who 
Inis been certified by the t'onuni-sioii as i|it;,li- 
iied lo conduct a hearing under ihi- ' ivi ioii .

(ii) . Ii i ainji im ill< !vi litanii'j. The agency in 
which the complaint am-e shall nan-mu the 
cuiiiplaiiit file containing all the doeiinienls 
deseiilied in section 713 J'Jd which have hem 
acquired up to that point in the processing of 
the complaint, including the original copy of 
the. investigative lilts (yvhicli shall he considered 
hy the {appeals] examiner in making his recom­
mended decision on the complaint), lo tliejup-

1_____ peal IcMimincr who shall review the enniplaint
file to determine whether further investigation 
is needed before scheduling the hearing. When 
the [inuieal'l examiner determines that furlhet 
investigation i~ needl'd, lie ~lia!l remand the 
complaint to the Director of hqu.d hmploy- 
111 cn t Opportunity for fuither ua e-ticat ion m 
arrange for the appear'am e ol wtine-'O- net e-- 
satv to siippU the needed information al the 
heating The reiptuemeot - ol -ei'tioii 71.1. Jit* 
tipplv to any futihei mv e-tlcat ion hy the 

j -i,v:.i> mi the ininulamt. T h t f ifpenlJ"\ainniei 
* shall schedule llie healing (or a convenient 

time and place.

13 a -



it.

r

r

Attachment 1 to H ’M Ltr.  713-17 (14)

complainlh

complaints

compla i n t s

complaints
complaints

complaints

c o m p l a i n t s __________ ____________ —
any agency subject to this subpart

m a y _______________________ _____
an employee of any Federal agency
determines is necessary to furnish--
information pertinent to the com­
plaint under consideration. The. 
complaints

An agency to whom a request is mado— -

c o m p l a i n t s ------------— -------- —
not administratively impracticable-' 
administratively impracticable -----

to whom request is made

(c) Conduct of / u a r i m i .  (1) Attendance nt the 
hearing is limited to persons deteimined by ilto 

£ippcakj CMiiiiiner to have u direct connection 
with the complaint

(2) The [appeal J examiner slinll eondtict the
1,Pilling so ns to bring out pertinent fuels, inchtd 
ing tlic production of pertinent documents. 
Kulcs of evidence shall not be applied strictly, 
Imt the fnppenU]examiner shall exclude irrele­
vant or unduly repetitious evidence. Informa­
tion having a hearing on the complaint or em- 
plovineut policy or practices relevant to the 
complaint shall be received in evidence. '1 he 
complainant, Ins representative, and the repre­
sentatives of the agency at the hearing shall be 
given the opportunity to cross-examine wit­
nesses who appear and testify. 1 cspniony -shall 
be under oath or aflirinntiou.

(d) I ’ l x r r r s  o ) [ i / > / i f ( i / < ]  f  s i i n m n . r .  In mhlitmi^ 
"To  the other povv eis vested in the £ ippo;ds) 
examiner by "the agency" m accordance with this 
siihpnrt, the agency shall a u th o n / .c  ihejappcnlj 
examiner to:

(1) Administer oaths or ufhrinations; 
rov w„™..i..*p <|;p rf *.!•: l:c.’.r::.g;
(3) Kule on oilers of proof;
(<1) Limit. the number of witnesses whose 

testimony would he unduly repetitious; and .
(5) Exclude any person from the hearing for 

contumacious conduct or misbehavior that 
obstructs the hearing.

(c) HVfnmrs n t  h r n n u n .  The ( appeal j  
uiliiiier sTiTHl request [the

o.\-
ngeiicvjf to make

available as a witness nt the hearing an employee 
requested by the complainant when he deter­
mines that the testimony of the employee is 
necessary. H r fiudijalso request the. appearance 
(>f /any other employee] whoso testimony he 

_£lcsiros to supplement, the information in tiie 
investigative file. The appeals] examiner shall 
give the complainant his reasons for the denial 
of a request for the. appearance of employees 
ns witnesses mid slinll insert_ t!k>m* rrn »̂»n  ̂ in 
the h i ••|il i f the bearing (The a:'eiicvj shall
make its cmplovees available as vvitne--.es at a 
hearing on u complaint when requested to do 
w, by i|,o£»p|iC"l ./examiner ami it i fnlmmi:.- 
irativelv practicable^ to comply with the ic­
on est When il i j j .it administratively practica­
ble] to comply with the request for a witness, 
the iigeiirv^shull provide an exphnnition to the

14a-

r



Attachment 1 l<> PPM Ltr. 713-17 (IS)

comp 1ai nt s 
cotnp 1 a in t s

complaint s

An employee, of an
he is -------
a witness.

complnint s

complaints

comp la in t s

comp1 a int s

complalnts

comp 1 a in t s

which do not bear directly 

which bear on — -------— -

Appeals) examiner If the explanation is m- 
ade<|iiate, lln* (uppenl-Joxummcr shall so advise 
the agency and reijiiesl it to make the employee 
wvuilahle as a witness at the hearing. If the 
cxnhination is ndemate. ihe f .pj»euK]examiner 

—rnTTIT- Insert it m the record of the hearing, 
provide u copy to the comphiinaiH, and make 
arrangements to secure testimony from the 
employee through n written interrogatory. 
fiOmphiyecs of the) n pci icy shall he in a duly 
status during the timcjthcy arjmnde available 

" „ s L i t  nesses." V̂it nesses shall he free from 
—restraint, interference, coercion, discrimination, 

or reprisal in presenting their testimony at the 
hearing or during the investigation under 
section 713.2lb j

([) I t r c o n l  o f  h t a r i m j .  The hearing shall be 
recorded and transcribed verbatim. All docu­
ments submitted to, ami accepted by, the 
/appeals]examiner at the hearing shall he made 

—  pari of the record of the hearing. If the agency 
submits a document that is accepted, it shall 
furnish a copy of the document to the com­
plainant. If the complainant submits a doeu- 
imiti t'mii •■> “ v ..................

• document available to the agency representa­
tive for reproduction.
(p) rimlinns. analysis, and rrcommeiulatioi.s. 

The fappcnl-j examiner shall transmit to the 
11 head of the agency or his designee U) the eoin-

(O) ,he findings and analysis of thoftppealgev-
-------^ n ^ ^ T ^ n n T T T T . e  matter ulmh gave

rise to the complaint and the general environ­
ment out of which the complaint arose, amt (3)
. litjtmimwiuiJnLik'viuau -rf 'J 0 x'
m,liner on the merits of the complaint, including 
recommended remedial action, "here appropri­
ate, with regard to the mutter which t-utf rise 
t0 the complaint and the general environment

_____ run of "h id  i I ho romjdjdnj_aroM*. Th.-J. | M»c a J
examiner shall notify the complainant of the 
date on which this was done. In addition, the 
/appeal'! examiner shall transmit, by separate

------- loner to the Director of K.pnd Ktnployn.ei.t
Opportunity, whatever findings and recommen­
dations be considers appropriate with respect 
conditions m the age, w-yf having no he.inngjmi 
tluTmal tor which gave use to the complaint or 

____  ̂ the general environment out of which the com­
plaint arose.

13a-



Attachment 1 to Fl’M t l r  . 713-17 ( lh >

within 1 BO calendar days 
it was tiled, including

complaints

after

See. 713.2HI Relationship to other agency 
appellate procedures. *->la> Kxcept as pro\ ided 
in paragraphs (1>) and (e) at tin-* section, "hen 
an employee*”  makes a written allegation of 
discrimination on grounds of race, color, leh- 
gion, sex, or national origin, in connection with 
an action that would otherwise he processed 
under —y.i grievance or appeals system*”  of the 
agcncyAt he agency may process the allegation 

"of discrimination under ->that system when 
the system*”  meets the principles and icquiic- 
menls in sections 713.212 through i 13.220 ami 
the head of the agency, or his designee, makes 
the decision of the agency on the issue of dis­
crimination. That decision on the i "o e  of dis­
crimination shall he incorporated m and become 
apart of the decision on the gi h-came or appeal.

•-F(b) An allegation of disenmmul uni made 
in connection with an appeal under stihpait II 
of part 771 of this chapter shall he processed 
under that subpart.

(c) Alt allegation of discrimination made in 
connection with a grievance under subpart ( 
of part 771 of this chapter shall be pioeOsscd 
under this part

.See. 713.220 Avoidance of delay, (a) The 
complaint shall he resolved promptly. In this

end, both the complainant and the agency 
shall proceed with the complaint without undue 
delay VQ thill the Comiilaiilt is rCs'd.veiJj^except 
in unusual circumstances, within M) ralemlai 
days after if-, receipt hy the Kqual hmplov- 
incnl Opportunity Ollicer, exclusive ojj time 
spent in the processing of the complaint by 
iho h 11pea 1 sj examiner under section 713.21K.

Vq^’hen the compluint has not been resolved 
within this limit, the eompluimmt may appeal 
to the Commission for a review of the reasons 
for the delay. Upon review of this appeal, the 
Commission may require the agency to lake 
special measures to ensure prompt process­
ing of the complaint or may accept the 
appeal for consideration under section 713.23»_J 

(b) The head of the agency or his designee 
may cancel a complaint if the complainant 
fails to prosecute the complaint without undue 
delay. However, instead of cancelling for failure 
to.prosecute, the complaint ">"y be adjudicated 
if sufficient information for that purpose is 
available.

16a -



<3.

Attachment 1 to FW Ltr. 713- 17 (17)

n
tc) The agency shill furnish the 

Commission monthly reports on all com­
plaints pending within the agency in a 
form specified by the Commission. U  an 
agency has not issued a final decision, 
and has not requested the Commission to 
supply a complaints examiner, within 75 
calendar days from the date a complaint, 
was filed, the Commission may require 
the agency to take special measures to 
ensure prompt processing of the complaint 
or may assume responsibility for pro­
cessing the complaint, including supply­
ing an investigator to conduct any 
necessary investigation on behalf of the 
agency. When the Commission supplies 
an investigator, the agency shall reim­
burse the Commission for all expenses 
incurred in connection with the invest i- 
gatiqp and shall notify the complainant 
in writing of the proposed disposition 
of the complaint no later than 15 calen­
dar days after its receipt of the in­
vest i gat i v e r epo r t.

(d) When the complaints examiner nas 
submitted a recommended decision finding 
discrimination and the agency has not 
issued a final decision within 1H0 cal­
endar days after the date the complaint 
was filed, the complaints examiner's 
recommended decision shall become a 
final decision binding on the agency 
30 calendar days after its submission to 
the agency. In such event, the agency 
shall so notify the complainant of the 
decision and furnish to him a copy of the 
findings, analysis, and recommended deci­
sion of the complaints examiner under 
section 713.218(g) and a copy of the 
hearing record and also shall notify him 
in writing of his right of appeal to the 
Commission and the time limits applicable 
thereto and of his right to file a civil 
action as described in section 713.281.

- 17a-



r

Attachment 1 to lW Ltr. 713-1? (18)

•0.

n

\

:

See. 713.‘221 Decision by head of agency 
or designee. In) Tin* head of ilie agency, or 
his designee, shall make the decision of the 
agency on a complaint based on information 
in the complaint lile. A person designated to 
make the decision for the head of the agency
shall be one w Ito is fair, impartial, and objective.

—>(b)(1) The decision of the agency shall 
' be in writing and shall be transmitted by letter 

to the complainant, and his representative.

When there has been no hearing, the—  
decision shall contain the specific 
reasons in detail for the agency's 
action, including any remedial action 
taken.

comp laint s

complaints

; r t v r» o c c { rs Hr* t‘

, whether or not there is a finding of—  
discrimination. When discrimination 
is found, the agency shall require 
remedial action to be taken In accord­
ance with section 713.771, shall review 
the matter giving rise to the complaint 
to determine whether disciplinary notion 
against alleged discriminatory official.. 
is appropriate, and shall record the basis 
for its decision to take, or not to tak‘ > 
disciplinary action hut this decision snail 
not be included in the complaint file.

(2) When there bus been a hearing an the 
complaint, the decision letter -dull transmit a 
eopv .,1 the findings, nmiiv-is, mid recommended 
derision of t lie fappealj rvumincr under seetion 
7i:i.'2IS(g) ami a copy of the healing record, 
'flic decision of the agency shall adopt, reject, 
or modify the dechion recommended by the

__£ippcalj examiner. If the decision is to tejint
or modifv the recommended decision, the do- 
,• jsi. 11 1 Id le r  shall >■•!_[■ ._r! h M.e fee a so n sj f.»e re-

jcctlon ii,i uiihra UoK.
(;}) When there lias been no hearing and no 

decision tinder section 713.217 (c ),  the decision 
letter shall set forth the findings, analysis;

, and decision of the head of the agency or his 

designee.
(c) The decision of the agency shall require 

any remedial action authorized by law deter­
mined to he necessary or desirablo to resolve 
tho issues of discrimination and to promote 
tl-.e policy of equal opportunity/ J

- 18a



Attachment 1 to FPM Ltr. 713-̂ 7 (19)

(d) The decision letter shall inform the com­
plainant of his right In appeal the decision of

, of his right to file a civil action______Ihe agency to the ('otimhssion fand of the time
in accordance with section 713.281, limit v.ithin which the ap|>cal may he sub-
and of the time limits applicable mittedj
thereto.

. Except as provided in section--
733.221(c), this file shall contain

Sec 71? 322 Complaint file. The agency 
shall establish a complaint file /containing ja ll  
cfooumonU pertinent to the complaint. The

(a) the notice of the Equal Employment 
Opportunity Counselor to the aggrieved 
person under section 713.213(a), (h)

(c) ________________________ __(d) --------------------
( e )

( f  ) ____________________________ '

< 6 >

( h )

( i )

Complaints

<J>

__. I~.v •• . r* ̂  .t>i U titc
written report of tho Equal Employment Op­
portunity Counselor under section 713.213 to 
the Equal Employment Opportunity Officer on- 
whatever precomplaint counseling efforts were 
tnado with rognrd to the complainnnt’s cnso, (1 b)j 
the complaint., fie'/ the investigative file, kdij if 

“Clio coirrpliontTfwithdrawn by the complumunt, 
a written statement of the complainant or lii.s 
representative to that effect, fie') if adjustment 
of tho complaint is arrived at under section 
713.217, the written record of the terms of the 
adjustment, £C)] if no adjustment of tho com­
plaint is arrived at under section 713.217, a
copy of tho letter notifying tho complainant of 
tho proposed disposition of the complaint and 
of his right to a hearing,1(g)) if decision is made
under section 713.217(c), u copy of the letter to 
tho complainant transmitting that deci- ion, Flij  

"if a hearing was IToTTj the record'of tlitriiearing, 
together with the pippoulj examiner's tindings, 
analysis, und recommended decision on the 
merits of the complaint, [(1 )) if the Director of 
Equ.H Employment Opportunity is not tho



o -

Attachment 1 to FPM Ltr. 713-17 (20)

(k)

, or a portion thereof, for 
reasons covered by section 
713.215;

designee, the recommendations, if unv, made by 
him to tin' lieml of tlio agency or Ins designee, 
and jjijif decision is inndo under section 7 13.221. 
h copy of the letter transmitting the derision 
of the hend of the ogeney or his designee. The 
complaint file slmll not contuin any dorument 
tliat has not been made available to the 
complainant or to bis designated physician 
under section 294.401 of this chapter.

A p p ia l  to the C o m m lm io n

Sec. 713.231 Entitlement, (a) Except a-s 
provided by paragraph (b) of this section, a 
complainant may appeal to the Commission tiie 
decision of the head of the agency, or his 
designee:

■\____ fl) 'l’o reject his com;ilnint fhi’cause (i 1 it
v.ns not timely tiled, or (n) it was not wi'hin 
the purview of the agency's regnlntionsT] or

(2) 'l'o cancel his complaint £ii] heoiuso of
the complainant’s failure to prosecute his 
complaint^ or (ii) because of the complainant's 
separation which is not related to his cornplninij; 
or J

(3) On the merits of the complaint, under 
section 713.217(c) or 713.221, but the decision 
does not resolve the complaint to ihe com­
plainant's satisfaction.

(b) A complainant may not appeal to the 
Commission under paragraph (a) of th:n 
flection when tho issue, of discrimination giving 
rise to the complaint i3 being considered, or 
bus been consideicd, in connection with any 
other appeal by the complainant to the Cont­
ra) anion.

Sec. 713.232 Where to appeal. The com­
plainant shall file hia appeal in writing, either 
personally or by mail, with the Hoard of 
Appeals and Review, Tl.S. Civil Servico Com­
mission, Washington, D.O. 2041-I.

Sec. 713.233 Timo limit, (a) Except as 
provided in paragraph (b) of this section, a 
complainant may li!e an uppeal at any time 
after receipt of his agency’s notice of final 
decision on his complaint hut not later than 
16 calendar days after receipt of that notice.

(b) The time limit in paragraph (a) of this 
section may ho extended in the discretion 
of the Hoard of Appeals and Review, upon a 
allowing by tho complainant that lie was not 
notified of the prescribed time limit atnl v as 
not otherwise a«aro of it or that circumstances 
beyond Ids control prevented him firm filing 
an appeal within the prescribed tune limit.

2 On-



Attachment 1 to FI’M Ltr. 713- ̂  (21)l

i

tif\
f*\
i

but shall contain a :.otice 
of the right to file a civil 
action in accordance with 
Section 713.232

and the complainant having bl',-n, '
formed by the agency of h s t M  
proceed under this subgart elects to 
proceed by appeal to the Commission,

on complaints

Sor. 71323'! Appellate procedures. The 
Hoard of Appeals mid lbv i>’W mIiiiII review the 
complaint tile end all relevnnt written rep­
resentations made to the bunt'd 1 he hoard max 
remand a complaint to the agency for further 
investigation or a reheating if it considers that 
uction nceessury or have additional investiga­
tion conducted by Commission personnel. This 
aubpiu t applies to any further investigation or 
reheating resulting from a remand from the 
hoard. There is no right to a hearing before the 
board The board shall issue a written decision 
setting forth its reasons for the derision and 
shall send copies thereof to the complainant, 
his designated representative, and the agency. 
When corrective action is ordered, the agency 
shall report promptly to the hoard that the 
corrective action has beer, taken The decision 
of the hoard is final./and there is no further
right to nppeaj

See. 71:1.2:’,.') Review by the Commis­
sioners. The Commissioners may, in their dis­
cretion, reopen and reconsider any previous 
decision when the partv requesting reopening 
submits written argument or evidence which 
tends to establish that:

0 )  Now and material evidence is available 
that v.us not readily available v. l.en the previous 
derision was issued;

(2) The previous decision involves an errone­
ous interpretation of law or regulation or a mis­
application of established policy; or

(3) The previous decision is of a precedential' 
nature involving a new or unrcvjcwcd poiie\ 
consideration that may have effects beyond the 
actual case at hand, or is otherwise of such an 
exceptional nature as to merit the personal 
attention of the Commissioners.

Sec. 713.23G Relationship to other appeals. 
When the basis of '.he complaint of discrimina­
tion because of race, color, religion, sex, or 
national origin involves an action which is 
oth( rwi'.e appeehilile to the ( iniunissjon^the
case, Including the is>we of discrimmation, ..... 
be processed under the regulations appropriate 
to that appeal when the complainant makes a 
timely appenl to the Commission in accordance 
with those regulations.

R e p o r t s  t o  t l ir  C o m m i s s i o n

Pec. 713 241 Reports to the Cojtimissior .̂ 
Kin'll iigencv slia.l report to the I ulli.ills,10 11  

information concerning precoiiipluiiit onmwlii.i: 
tatus and disposition of complaints 
subpnrl ut such linn’s and in such 
the Commission'nre ri!

- 2la-
TTT1 ■—«W»T



v) •

L —  UNITED STATES GOVERNNlI|>
"  Memorandum
Subj«cl! P r c c o m p la in t  C o u n s e l l in g

T APPENDIX II U.S. CIVIL SERVICE

and Discrimination Complaint

From;

To:
r

Activity During Fiscal  Year 1974 ;

Anthony Hudson, Director
Off ice  of Federal Equal Employment Opportunity

Irv ing Kator
Assistant Executive Director

:OMMISSlDN

Do.., i ju fe ? n 1 3
In Reply R.I.r To,

I
Your R.fe«t*c,

t .4
31

L

* ? « » £ " *  “ f 35t , l 9 ? T ( r U c i r Y e S e w W  Employment
" n u j ’e i i . w S l y  EEO o f f i c i a l s  fol lowing:

1, COUNSELING AND C0HP1AINT ACTIi T.r_Y

Number of Persons 
Counseled During 
the Period_______ _

31,484

Corrective Action 
Brought About 
After Counseling

11,080 (35.17.)

Number of Formal 
Complaints Fi led  
Afte r  Counseling

3,485 (10.97)
r .u ' * 1  /,oa cino^l nersons counseled during the period 

f i L r L i n L L n  ^ s  alleged on th.

s m i s g s t  teiigsa ' ~35itr ef a ^ -  i l

A similar breakdown o£ 3,435 discrimination complaints filed (10.5%) of 
thosfcounseled daring the period shoos the folloorn^basc^

Esiiainn f f
( 6 0 M  ( * %  <n.n) (6.37.) , (3.57.) (.77.)
2 . m w l  tlCT CASES RETORTED OTnsEP nv AGENCIES

Agencies submitted 2,650 disposition reports on eases --’ - i d  <*ntlng the 
period. Cases were closed i.n the following mar.

- Decision on the merit*
-  Withdrawn
- Rejection
- Cancelled

- 1410 or 537.
- 870 or 337. 

265 or 107.
-  105 or 47.

A finding of discrimination oas issued in 170 (or 77.) of eases closed

Kttp Fm Jm  in Y c .g F «> «"
Bonds

C r,C I O 7.i r.ii



by ft decision on the merits or withdrawal.
Some manner of corrective action was taken by agencies in 985 or 377.'of 
the cases that were closed. Disciplinary action was taken in 36 or /. 
of these cases.
Government wide processing time spent handling the 2,6j0 cases, 
including time spent holding a hearing, averaged 201 days; an increase 
of 23 days over the average processing time utilized during Fiscal Year
1973.

Agencies closed 735 more cases during Fiscal Year 1974 and spent an 
average of 23 days additional processing time.

-2 3a-

'll :--vr v



Memorandum A P P E ! i D I X  1 1 1

Subject: GoveTOrr.er.twide Equal Employment Opportunity
Counseling and Discrimination,Complaint Activity 
Fiscal Year 1972 thru Fiscal Year 1974 

Ffom: Anthony W. Hudson, Director
Office of Federal Equal Employment Opportunityr

To: Irving Kator
Assistant Executive Director

Dot., j;UG, 2 0 
In R.piy R«(*r To,

You, R.frrmici

L

Recurring reports received from agencies during the period July 1, 1971 
through June 30, 1974 (Fiscal Years 1972, 1973*and 1974) concerning 
Equal Employment Opportunity cases handled by EEO officials indicate the following:

Baseline
July 1, 1971 

thru
June 30, 1'97,2

July 1, 1972 
thru

June 30. 3973
July 1, 1973 

thru
June 30, 1974

Percent 
from 

Base 1ineNumber of Persons 16,883 
Counseled During 26,627 

(+587.) *
31,484
(+18%)*

+86%

Corrective Action 6,817 (407.) 
“ Brought About

After Counseling
12,594 (47.2%) 
(+77.) *

11,080 (35.1%) 
(-12%)* + 63%

Number of Formal 1,834 (11%) 
Complaints Filed 
After Counseling

2,743 (10.3%) 
(+50%)* 3,435 (10.9%) 

(+25%)* +87%

A breakdown of the persons counseled during each Fiscal Year disclosed that 
discrimination was.alleged in the following percentiles on the basis of:
Race/Color 707. (11,733) 64% (16,988) 57% (18,029 +54%
Religion 2.4% (420) 2.2% (599) 2.3% (713) +707.
Sex-Female 17% (2,833) 18% (4,819) 22% (6,925) + 140%
Sex-Male 4.6% (786) 5.37. (1,414) 11% (3,482) +343%
National Origin 6.37. (1,061) 1 1% (2,807) 6.8% (2,166) + 104%

Keep Freed c m  in Year

CO«w«i'ff crrvr ik.-oj.-vj*,
Future With US. Si 
-2^ a-

uvings Bonds
esc ro„M 631*ijfa r •■jf IW*"* — - r»,

1



I

Age

I

Baseline 
July 1, 1971 

thru
June 30, )972

July 1, 
thru 

Juno 30,
1972
1973

July 1, 1973 
thru

June 30, 1974

i
2 ? 

i
4

Percent
from

Baseline
N.A. N.A. 0.47. (130)

A similar breakdown of formal complaints filed after counseling during 
each Fiscal Year shows that discrimination alleged on the basis of:
Race/Color 68.47. (1,256) 617. (1,661) 60.3% (2,074) 657.
Religion 2.67. (49) 57. (137) 4.37. (149) 2047.
Sex-Female 167. (294) 207. (551) 21.77. (748) ] 547.

Sex-Hale 3.67. (67) 47. (123) 6.37. (217) 2247.
National Origin 9.17. (168) 107. (271) 9.57. (328) 957,

Age N.A. N.A. .77. (25) N.A.

* Percent of change over the previous Fiscal Year.

-25a-



APPENDIX IV—A

ATTACHMENT 2 OF BAR ANNUAL REPORT TO THE COMMISSIONERS FOR FY 1974

4

2 6a



27a

(

BOARD OF APPEALS ALD• REVIEW

ATTACHE." 2 - Workload Statistics
A. Cases Receiver and Processed:

I lcludes short suspension, probationer, salary retention, acceptable level of competence,
r •ermloyu.ct.t priority, examination rating, and Part 300 (CSC employment practices) appeal: o

■1



28a

board of appeal aitd r e/iew

ATT.'.C’EfE'T 2 - Workload Statistics
C. Statistics on EDO Appeals, FY 19 7̂

uls Received =>rl Closed Cut
FLO cooe^Ls cn hand from Vi 197> 15b
Anca'.r; Received £03

Cancelled by Employee 51
C'csri Q-xinc y*-ar 727

EEC appeals on hand end of Vi \97̂ led

>0'itior of Afpeals Closed Out
1. h if v.-.e iArer.cr Decision

lie e i scririn.nt ion fc.ir.d U27
lie < iscrir.i.'cttc: icuud (recamended

further corrective action) 12
Discr)r.lr.ition fcur.l U
Discuir Ir.asi.cn found (recor.. .ended -

fizrther cor~e. tivc action) U
Pcricnul reject:or of apeeal as untimely,

not r-ithin surviev 6U
Decline appeal as untimely

2. Reversed A;,ency Decision 
Discrimination foen.l
lie. t '..’ithin Fur/lev or Ur.timely 
T-..in;ro-ri-I e cancellation or rejection

3. P '.R re oiv.j:! ap cal to nrjency vappeal
< ■rs;erly r;je -led, further investigation

13
23
2
7

C2

C.t.'el A



2 9a

t (

BcaRD C? ArPEALS AI<L» REVIEW 

Statistic.'. cn EEC Appeals, FY 1S'7̂  (continued)
Issues involved in appeal 
Type cf discrimination alleged

'-•/C
ck 275

Cancastan 32
All others 12

C .trelic 2
T.,v i j : i lb
c t:. a

, L0l ..l Origin . . . .r ..i lean 5
I. - . 1 c a a - Ar.e r i c an 9
r  ,r.i'h surnar.e 20
LY . ot..rrs 25

l . Sex
’'.ale '  i, r/a

S  Other.....................................
Încludes â e, physic ii hand'* ..vp , 
ra.rit.ai rtat’v:, md \ nspecif icd )

6. Cc • 1: ’ • icr.s cf tvo cr rrorc t-. ces of User] nir aticn:r .., i i •. c., _ r 07
!-;eil- Lcr. and So.: - 2
M.t? r \-.l 0 -Igi" er.d Se" - 7
1’ • ’ . • 1 i ■ ic:i - U
;• a t i : .1 Crif is' - h*
r tlor. .1 Origin -  2

319

2 k

. 67

117

11

1 !



30a

(

BOARD OF APP1AI2 AIJD REVIEW

ATTAC’O^.T 2 - Workload Statistics

D. FEO Appeals statistics 3y Action and Allegation

a l l e t a t EON

r>i iuO - Religion Se'i Dot' r 
Crir.in Other * TOTAL.

6 J 7 0 n  —

203 . i/ Ill .77 7 rr<
__ —--------

'8 O
c. 1 0 J 1 3!;

-CjC It Z- . -

Disciplinary Action ................. 33 3 :3 U 1 5:*

FI
~
7 1C 6 1

Se:>iratlcn iAirir.g r*. >o.i«  ̂ • 

Ken -• g i £r'*r_cr.t> • • • • • • • « * » • * •
/-*% — j 5- lh h 2 '‘7 — 1

UU 10 25 16 2 ,7 1
*i iX— **£ • * • * • • • • •

Cw.il** •• • • • • • • • • * • • •

V.’— --ir. - Coalitions........ ..

Ferrer: -in.ee Evai.’.stion........ ..

ClassiOicaticn

5

-------- ---
0 3 2 0 10

2h l 12 3 1 lh

5 r-d 3 0 0 10 • |

•

13 1 20 k 0 »*3

57 C, 11 0 s 113

..*cr!t / sg i ‘’Tj1 ri r.ts . • • « • • • • • • • *

j • • • • • ♦ • • • * • * * • *

~ ; 6 25 >3 5 75

r , • i : 1 „ l.-f 10 170

1 | 
i

•n"v i 7,1

)

177 2 7
. *n-'<i

-  t o : ' l



APPENDIX IV-B

ATTACHMENT I OF BAR ANNUAL REPORT TO THE COMMISSIONERS FOR FY 1973



.A

■ • .... . , •Jt' Mtimtim lllMt* in mm 4* *»• ■

Attar!: r 1r"M

.Vpe of Apseai Pccc.

Uverse Action 1145

: c c u c t i 0 n - i r - Fc r c e C.O}

•ircri ■■ ires!or
v4K;0>t\J

605

oO

ctlrc ".cnt 2.30

cc<*r.’I-'.,: i; a! 
el' L-. i •■u : v.e

' i"

tlioj 2 1. ̂* ‘ *

Tula if. 2 > 37

1. Includes chert

WorkloadV71wl.vcd processed Keren ini;

- r ^ V

V "

Actual Work]oc8

F.e :T 197?''"ivc-d Processed P.er.oir.inr
Ac tv. a 1 Workload

rr 1972■ c c c x v ̂ n 0 c ̂ ? 5- ": PC~P' - f

127?

>22

929

97

132

1 1.1 *•>> )

331

3997

195

40

65

::(>

73

690

1335

877

677

47

'■J. ̂C. +J.

l*i-3

3* ̂

l6"i

o95

51

252

153

3-79

4101

443

123

153

9

-o

45

60

03l

1211

707

520

77

265

250

1133

735

494

92

250

153

239

3212

:poneiori, probationer, calory retention,
- --j. F -  a'** <■ ‘-O', examination rat;rrj. ar.d Fart yOO appeals (CSC employment'practices) .

SOAIO Or ArPKALS AND RLVJ'EU

-7o

*"~r

13

**1
I
It •<• - st

4

1

l i  i

1  1 J 
«* * ' -I

v: 4
u \ -O
r j

49

r%r\✓ ̂ V
». *

s-‘;4» a’
r‘: *3 •>' c v ̂4 ;

53
f, - 5j

926 *■ 1  
• ijf ' :4

?■ 1
r*

til

S
. II  ̂i r



-33a-

•5R.r"

*
Attachment 7c. Statistics on EBP Appeals, FY 1973

Appeals Received arid Closed-Out
EDO Appeals on hand from FY 1972 
Appeals Received

Cancelled by employee 
Closed curing year 

Appeals on Hand, End of FY 1973
Disposition or Appeals Closed Cut

1. Affirmed Agency Decision 
Ho discrimination found
Ho discrimination found (recommended 

further corrective action) 
Discrimination found 
Discrimination found (recommended 

further corrective action)
Regional rejection oi appeal as u..timely, 

not within purview 
Declined appeal as untimely

2. Reversed Agency Decision 
p is.cr iminnl ion found
Hot liithin Purview or Untimely 
L’.appri.pr into, cancellation cr rejection 
Inappropr iato procedure

3. D.-tR remanded appeal to agency (appeal 
improperly rejected, further investigation 
required, etc.)

4. Cancellation

BOARD OF APPEALS AND RE 1U

176
677

10
6S5
158

4'54
11o

1318

11
21
7
5

25
10

7.

J



Issues involved in appeal

iLa-r
i

Type of discrimination alleged
1. Racc/Color ...........

5 lack 
Caucasian 
All others

2. Religion .............Catholic 
Ji-uish 
Othe r

4. Sex
lie

5. Oth

336
34
29

2
21
3

1) A-i.r.;e..n
21 Dcxie.'.a-Ar.crican ■ 26
3) Spanish Surname 13
4) A31 otr.urs 2-4

7
84

(Includes ago, physical handicap, 
n.,vital status, and unspecified)

o. Ooi'Mnations of two cr rove types of discrimination:
1)
2)
3)
4)3)
4) 
7)3 i

.co a:ul So; - 
Rei igion and Sc.x - 2
inLi onnl Origin and Sex - 4 
Race and Religion - 4 
Race and National Origin - 4 
Religion and National Origin - 1 

e, Religion, and Sex - 3>\U
1' CCC j Keligion, Sex, and National Origin 3 

HOARD OF APPEALS /AND R£VTL/<

399

31

65

91

32



s ’

vn3Jl

Attachment Ic, Statistics on EEO Appeals, FY 1973 (continned)

rB. Number cf allegations of discrimination grouped according to the type ofaction
National

Race Religion Sea: Origin Other Total
Initial Appointment..... . . . .  10 2 1 13
Ton-Select .-Prcr.otion... 20 74 39 7 35Q
Non-Sclect.-Trainin~, t 6 T 55
Discin. Action...... 8 10 4 0tm 77
Renas lpnmcnt.......... 29 2 6 3 40
\ 1 *! n i  - c -  r] - 35 5 10 6 56
Detail..... .......... 5 2 2 9
Working C■;adii■fn-.-...... 16 J 3 22

Ap-eav.'n.i............ i •

P-' r f o r m. "valuation. 8 2 1 2 13
Classification......... 4 2 2 1 9

1 1 1 8 1 l 22

Other............... 69 7 42 15 9 142

Total............... 469 49 3 64 77 20 779

BC V.iD OF APPEALS REVIEW
1



APPENDIX IV-C

ATTACHMENT 1 OF BAR ANNUAL REPORT TO THE COMMISSIONERS FOR FY 1972

36a



V v ex f" t. m * '■■ ■ W ' "■• r
r - ~ -
Till ;£- »»'WV ^ «■«>

- v ■;i,U*£dliS uSî sA

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;A \<w v

,'>• it I;-. i 0.- ’• 1 o-.-cc.;-: ct

r : or. ••••k

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r
t* ->-Vji'.® 4i:ty

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v,(i. io5 . -it p r io v i-y , ci.v.oincti^n r - l i r - ,  ftud I'-vt 3C0 apr-cdsi.

)

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kioad ?

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r. a

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1

 
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sr-2

i
3cG 1211 1123

i

404 966

593 623 92 707 7c 6 17G 1 o 'Cl

t  “ • •. 1* \.. .c; 4(-o /.;*0 320 17 C •'17

150 127 <.r>CJ 77 C ,". 1 13 127

23 3 226 33 ; 263 r» ' 40 1 233J
I

\ »• 1 ; f 1 ' i » '•» V
- - -

| ^ 132 50 UO
l

.Oilvi » *
:-'.h 313 3 • ■ 2' v -4 *- 5 cl 4 06

IV1. 1. J 793") 2346 721
i
| 3261 
1

323 2 926
! ____
1 yj/°  
t

/ / /
: i-/
j- /
i 2 3 

2?0
i f . ,

476
ji. j

)

i
. 1|

£■■v1
1

J

?T*r J&m
3*- .t s#*

r<>?;• v.-s
C

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\,v?Rrl?:-g <
'7' •*fit
» > »;

v v«a
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■ ^  >t

f, ■'.£ <=

m
. I

• i

■ j

n
• . V'-St 

T • M.
4

3





i

F-

f’

iXT0 s>1

r.-'liM. lit* Lc. Statistics on F,."0 Appeals, FV 197:? {ron!-inu«d}

of p ■ rsen m l action involved in rppiialj wit": nu: ,1’Ci of

Fa •Liui\? of p roirotion i o '•
»\1't oval 29

f '.i • l* l* ‘ 02* apj: ->i.n t’.icn t /' /
0  ;- .hi-- j.j!) i:';C Ldenie

. . • * f* '■> »
r > t 1 <.* * L »’H during probationary period ; T;
Mi r y : . it

. ; I rr . "i> r.I J. • ia-n:; i *7
•• i/.;. L * 'n : i

‘ :. i v . »• .1 n

j L
:: i ' j 
a :; m\  ̂ i

ion oi position
U lI. of)

Ld
,r

p, ,ainui.";! : rating assigned
• ..'a: 4\ in:' (.

4*.)-* v.. i* ». : >
1,- .• 4 ’ C*. ■/ V
• »V. rr *• ■ c L Jit:'.’

v jigft
,V'"-

- *+. •«
- . . - ____Wii —  >h* £



( '

• l
^ ’n .v lis'y * •••Chairman

APPENDIX v

u wi 11 u i« ia i r . c. ivi i  *..i i<vic.t c o m m iGbiON

WAUUINOION. D C £0411*

JWi l u

1 icino rb i r_ A ;:»: t > <• r 
Ac Lir (i, A*i.r i .-.tor
Geeo/rau r>evv:< cca /.■. i1 nistractow 
Washington, D.C. 7.0103

Daev Hr. Sr <tiv.i<>n:

rhyn iu >u ,0 y ° ™  letter of Apv-.il 70, 1973, vhich poaod
ccrtr.Li afouL the proccai..a.I ri:\hri; ox t.iru r.llc/'tul
dascv itv.11 .;f. o;• y o/;f1clei 1 1; connection with x; ccrpicint filed under 
the Co.viit;r.ion'r. dincri'-j.action cc..,;.IaiuL procci-urf •>. VJo recentI;:a 
t.ulr. r.s a h;-My nciir aU vve. uvea. Gro t care ir. nc-c.acsnry to assure 
, fairns r::. to vll ;.'r:;o:v; Involved rv.d at the r.c r» to protect
the ml [..pricy oi the clit.criii.innf.ioa cc .plaint ’u.occdoxe.

’ 1>A»S /. U -

I a rLi\ !'■. ;> be.ale f.-.ctis rloi.t the r.c-,-•1
i n Okr.:i ev tlv: r:r ■ir. by v h'.eh the r.<;cueunciric the Ir" i., -, r;relet?era to r.-r. u.-.n re: tree fre n rey di.'.ctivft.hriLie.i i-.-.*:erl

tv: trey to aointuj. to -.r;. 
r ocaduvo. The praaeJu:

cl.Vr.c.1,-J' >. r:.rpoi?:»:vn uV

rn

:u.\; that all Ass parr.ovne. j. act loan 
. , ■ cel or, xeXlytfM, oar.,or origin. if; ir. irjorCa.it to ctrato teat it Is frets

bog ion in,-, to cod Cat Jr_r*«£: until x:;n?vr'*.) hroJcri.lv 
process. Thur. nlC.-ran;* fcl;a co.*.nlVi:?-.n 
herring, tivj h: itovr; j;- not r.Jvo.rr~.ry ’rut 
initial invent!irIcn Jnto i;an cc.-. ilx.infc. 
tu;r. a pari one or the Iflhir.l invert- i tion, that ir. t 
facta on \:Uich a dacicioa of tha agur-cy cr.u lx made.

j.a ace
Tt:a hairii.r.

* --- ' • *' * V yAlilUL JL.Ur.fic.uif.t too x.pnrrr' raid not a;;.-in it a pot idler oiiicial even 
thoujpi rn official may he n~.r;.d or implicated in the alleged 
discrriv. or.tory r.cf. if; fa the respenp. < L L1 fry of tie money to 
•root cut discri*-*i-.v:tion rad the co-.iplr.int procedure offers the 
cr;ncy one rvenue to d:> thin end to assure that the notion1) of 
Eupewir.ovo era free-, from dir.crinlnoticn cu they c fleer, employee a. 
Ti.e e.-v. o.lnfsirnt r.v. ' the agency are thus the only povtic-.s to the 
p r o n e a i  1 other per-onv, except there off ici'ij.:; vho have 
rerpee: il-tj ,.l;.lc.'i in process in.-; the co. ipia Int, are United to the 
roJe oi '’Itnerncs. Therefore. it uouid not: be prop*r to treat

• ’iniveiy u.. fie.’.a i as . v«.y" to i.v.i procaedinc,

;r t ivo. ; *'*
: to a
he t •
«.v _i t*tha rt►w (. »*•

tP

*4. '

- 41a -

>



I.

In lij'.ht oC the Corefcoin;;, Wc have ^'..ndeu l,.: low the answer; to your questions in seriatim:
1. Vir.y flic? aJic-K.inl iij scr h.-.inefnAy official cm-.pel the 

investigator lo take I'm ants of witnessesnamed by hire?
While the aliened d; seriniv. . :totricial cannot • co.u;-f.\ the. investi.;;.--r.r ,:o c. rtniem-nis of 
viL.v,;wnes, i he oii.tci.-w cun r.-.'-v-a the investigator 
of tlu* tnesr.̂.'i lie lw.?. :.a :u~. •in.ild he i nun: vi.cv/oci.
Hie Invest./pacer i utt v.l>c:.< '.«• ".srinc. j.v these
v;i Luc* sacs h ,\ e in£oi.r.L i on \ .v,mL to the issue 
ma! it yr. on this ir. in -; h : '■glares \;i tnesse;; 
to be inter vie-vuu. Tl.u 11. v - .t : ,'Ttor r  vequ vved 
to exercise neutral L.y not A ryuud vi-uvAy on 
ft*it}.rx.c:' J.i-.w oicu.r ; he c o o r  apency 

! cial;; Lu c.voryh.p or.; ha i.s-cljyuucnt o.f 
t»therjp" A&ctujii inforf/titioii.

2. Vr-y the al i.emd disty-h.-is.at.of.:'; that iu.vo access 
to the i.afc rjci. contsium a -..he < • ..-‘vaiit £Uu and 
xtp covpoi-.cut. tna ir»vast:A • r::f. c-:• y 1 :i).»•: >

r.-m.J do r.Ci'xi ij.r/;tv;o „*v of ff cin.fns '.111, £. CCC7 (. j ; ■ z j A
m. vo .'if:cess l:o t.it! '>: tho.cutitied t:o

or the ircur-tinacivc i l i a .  An stated above, the 
cccols;uh- is  in«t lisa «;yvv;y one". the ro)p of the 
'■J te-.ad dincvJ’Tinc.i-.Oiry o c i c i  ::i >« n»  a witness. Since 
*'" ■ i jo:. j a n  invar L .<.."‘.ca info the faces re -
\ ' 1 *• ' 1 * ' int: ; *. a ;',v 'c<'ive no asr’j.p j'.cti.*r> Live

the ii * V \ i * VO file 01 :t:ho jnv 3 r i.•/.tor j il Ti’Jjkin;; f.ir.̂o.-Ky repn j.Vv! Vi iv*; J tShow i o cf. i c in l ? v tJ r.cv»i*.: j
j J, j.’ll’- w.1 .. J.* **! 11«.cc rs 1.0i’i'Vv)*•’I: * o 'm I'M•* r c>-;yin? f.

e.vid -JiC/■» » ;* the : t fl O .'W/ ; nr \u*•;’i. x • < y.‘i;>. i' 11. /.; it.t '.IS. altavs C- /• i l l r.by r/Jic,■ ’ll cl if.era-L.'c" iJ- *! v». i11 *A': r 5j a.s net M'.u.': avr•. i. .s *
IC <!;.r;cJ »>linary acLion is 1 / *. V.

- 42a -
/ .* • *'*V"■ i ’ V" .*

ilUdlW



3

4

lcquire. th.it the official have nccenc to the entire 
file cr portions of it. in order to properly prepare 
liio defence and uouert hia righto under grievance 
and adverse action procedures.

3. May the agency excise netcvial fro*» the complaint 
file th.at the alleged di. criminr.tory official hr.3 
demonstrated is parser : 5\y detri mental cod is not 
relevant to the question of discrimination?
llo. The overriding cr >: id-•ratioi here is main- 
tniuin;- the integrity of t. dic-eri v’furitiovi 
co'.’plniuc process. Vhe euj*section that an
agency way excise ire tear/ L iron the file could 
lead to Che charge that c. : egu.tey is free to 
receive any material i va'.i y r.jpr.'ort t he 
complainant1 u allcg.v.tio., of dicer-t-inetlon.
Must; material in a cc.'f l •ii.t file, vaich directly 
implicate?.1 an official in discrirrlr.at.ciy conduct 
could ho eon3Creed r.e pevr-o;.-i).ly dc-.ri.; ratal to 
uo.ro degreo. Ko matter ho.? \ arsenal), y ortrvmentc.l, 
v:e ccauifo there mould ) •..a.:. ...’ant vbora the mate.r iel
ic relevant to the in we: of o ie.crir loafion that it 
should not: ho excited. The prlric.I:,;.i thrust: of the 
question, therefore, ic or of the ocy to
c?:cj..s?. : •••t.crrc .i vnich it. (•/•.?•:•>dei/s ii rnjr.v.Xit. Good 
iuvv sti fy.tlon technique r.I*.v.j>.d l.-.cp irralnvw't 
rr:-t:eri: 1 cut of file file. 7:\ r:..y re could
consider it hrprir'.v fro: r.o ? gewey to t•:.ler.o raterJe.l
on. an cr.-rrtn hatis rule'. it believea in irrelevant.
The Cf.-.'iUj r l:tt era:liner r.:ay take fueli action an the
metis:., of the cr: via In-.u):: cr rguucy or rny parson

"Ir .Sjv.1*1)V-! :.e . -.Iv.rtel ? • ■ • fii>. u. grievance to have
the vv.leri ’i deleted or to have the record corrected.

4. After c.-tt" e.v.rtiou of th invar tigr.tory file, may the 
alleg'd c’i.'.criTiv.tojry official ccr.yeJ. its reopening 
to rehut charger, ccnfrlsed therein, of vhj.ch he might 
not previously have. been t_wc.ro?
Ko. As \.e have. at air’d previously, the alleged 
dircvlvinntcry official is not a party to the. 
prone-'dine sad should net: have access to tie file.
As a vi'.nr.aT., he J ar- no right to compel the reopening 
of the investigative file.

43a -

I v *

t
WWCBJWf'



A
‘live real problcB. hon* 1:. a:i:;u *•left that a complete
invent j i-.atie.i it•u h.%.cn uvulc. t * ch uncover all
rclevent Lacts 1.: ari:<;; on th ci'. lulaint. 11 the
i-:eo Ol:i icer or otb.er r<** nry o 1lifrial cnarp.oj tilth
tillr. Toepunoi.oii>ty <!Mt : i : ■ i ‘t cii'.cft•: a
eft..uia t .-i.i alie J 0«1 V Vc C v; mIn' , off? e f'..1. \dilcii
arc cent's'.'.v. •4U J . it i i. in n* " * rt < ’*" ‘ report ..re
velevent to C l IL, .i ;•itu o •: r h •••' >’ = in>., nut that
no O f f  o  i. t u n  i.<• »*J V r.r. PL‘ovi.-.l*:J rc • h'- ofiici■ :1 to
provi.de hi:; vc v i  on O i! t h e . 1 v.'« - i. . , L iK . l t  *10 should
request j .. •iif.iiJ hivc.'i. • ‘ ion covcvi:t£
the si;' . L\k _n.j r.a. if is requested
on t cor..);. 0»r* i. J l ° C('...aJ <‘r.-.'wuv.c oiij.u
ciXc ' T rev.V-.ft <n . car:: fa f! - ' • / XO/ J.Cell
l‘j). i*c; *:or call -1 j. : e «11 s ■: r i.'Img Tory oil ;c ie 1

C /i 2 .

f i A"C ipli -*y r o’.j cm. iviy tir' »;*pr ‘»cy i:r'-he np.'.lust
m  c. i nye 1 J i •cU .’i u: fie .'o >1.".• L o r n l I :;-eo
c! X f. mJ. A ' . '.i. ■■» .* s' # (J;. / C Jr . i ,  rot m . ; ;; \;>.tbout
i • u »*;«•ncLr.r ti o;t 1*. v r.Vi*’i cr i .. i * w .w i:. / • .• C iC V .i ••J. CO n -

ta:» •J. in f ; l ; c c i ■. :\Il x j i  ' l }  \ . . rv.d 1cft V (. >.!. r.tel.y
C ( • ' r *. ■»r  r  ■ t.i j, t O J! .:L 1 .r, r ; c  v. I '- . '-  '-J' '1
if t " f . s ' ■ * -y c: 1v  r rvGcn of: : JO .' / ) i l  c J f r . , -

dive f> 3 j :. f y .  n cotioc* ‘ . •.n,>u '/ . c  e ’ . j a.ire
of ».cv recufifty v.i,soTh', it ei •• rcr-punr. ileii.i.t y to
nrn;-.-’. fchv.t. pro;.:.- re.v.vjiroo r.ic then to protect the 
pccnvJlty of kb: Infov.-rtticn.. TI: vrv/.ore, *. moloye.er., 
inrji. ".eft the oo . ; L'.;'.nt s.n:' ; 1 . ".'.'id <1 »rc:r i>" tory
•of.1.':*../, i, v'.*o <.* < v.t. yo f.v.ch i t . i o n  ctmJC. ha
sul'jvrt to appro,.viaftr: oiscJ j t l.r. *./ action.
IThilo the ' p. ft icy has control over the. official complaint 
file, it is to provide copy to tiic complainant
for «»!•■« in co.n actio.i pt<'c;.:.; lrij’ the complaint. Our
repnlationr. <■■> not rn.-c.H to ray rm-tricticn on the me 
of t.hv file by t:i:_ c-•.• ;>'ei.vrnt ..an vc do not: believe 
it V' '.:1 he • i l.-t.. *o do ..o. jar* ansvjrr here is
to t!r i; 1r.ic v • !' t.aJ t vvoeur. Tnrtei ie.l is not
nit'? ! info -. r: ecru in ..... Ilret place. Of course,
1 1 t.i ; 1,'•:• *••..it \ i ?.'.**• f 1 1 » In a osminev deliberately
<?;*:? * * A ft) '..i'.: •>. i. ,■ . or to briu;*, that.
c.‘.»lc . .. M.fo fic’ici'ie, tnea <’• L:.cipVinary action i»y t'ne 
agency muy he in oic’cr.

44a



6. Does t.li * n 1 lcged dir* criminatory official have flit* 
right to have u representative at an LEO hearing?
Yes. The alleged discriminatory official, like all 
other witnesses, has the right to hat.** a. representative 
at an EDO hearing to advise*, hiui regarding his answers.

?. If the al lcged discriminatory official does have the
' f to have r. icjiresenL.-1 ice present at the hearing, 
the representative cx.'.v.fne and cross -examine witnesses?

rip.lmay
Mo. The re presentative of the alleged direr minatory 
official, or of other witnesses, door nut have the 
right to examine and cro.~.s-0/.a.:>ino witnesses'and would 
he permitted at the hearing only during the time that 
the alleged discriminatory official i«: testifying. Only 
the complaints examiner end the. representatives of the 
parties in the case may er.rmne and cross-A>.<-.-\inc witnesses, 
hs-caver, if the agency is convinced I:h.'.t lh_ra lias been no 
disormaiati.oa in the mutter, tl.cn t.i:o agency representative 
would very likely exsiriiu*. and cross ~n VAfuina on the cau:e 
points as would counsel for the. alleged discriminatory 
official.

«. a *■• * «. & *V

l!. Mona the- oliege i disci iriin? 1 ory official have an absolute 
right to compel the faking of his testimony at: an EEC) 
hearing?
Mo. The alleg'd dlscrimin'tory official docs not have 
an Absolute right to appear us a witness at the hearing 
a 1 1 hoo gn ft: is difficult t.o conceive of a situation- in 
voich Iso. v-.iuld not be called. The alleged discriminatory 
official would he expected to have personal Knowledge of 
facts hearing on the alleged disc::ruination and his 
tent!;.any would bo necessary. Therefore, it is normally 
expected that the alleged direr f: linni ory official would 
he called In testify by eitlr-.r the complainant or the 
Agency, and if rot tĥ n, by the ̂complaints examiner* 
Assigned to conduct the hearing in t.lij case. However, 
there may he an unusual situation wherein the testimony 
of the Alleged disc rim in. Lory official given to the. 
iri vc s tigs tor is so complete that nothing further from 
him Is neceunary at the hearing. In this situation, it 
won!<1 not be nucesuary to call bin and he could not 
require that he Attend the hearing as n witness.

#V

r

be hope this information is helpful. If you havelof );ncw . any further questions,

Sincerely yours,
JPyxi-gt \ 9 . .  L fvxui /rlsn̂ v

/c/ kobert K. Hampton *
'•bb - -N ■*** TV*. v>,- 4 5a • * • • * -;v _w * •/ * • .* «.?-*•.•



APPENDIX VI

r

UNITED STATES CIVIL SERVICE COMMISSION
APPEALS REVIEW ROARI) 
Washington, D. C. 20415

D E C I S I O N

IN THE MATTER OF
) . •)
) TYPE CASE: Dir.cr i mi nc.ti on Rased 
) • On Hacc

-M U g l-JCIES, JK»_______________________)

. '• - f/W .

■ i’
♦ r » v “ v

• Bcfoi'c: Noel, Bcchtold and McDonald, 
Members

INTRODUCTION

Board

*< '/ W* »K-Av'-
The complainant appealed from the March 19, 1974, decision by the Director 
"of Equal Employment Oppoitunity, Department of the Army, which found that 
the complainant had not been discriminated against becau.se of his race in 
connection with his non-selection for promotion to a GS-12 Architect posi­
tion. The agency decision further found that the complainant, naa oecn 
discriminated against because of his race in his employment situation at 
the Mobile District, Corps of Engineers*

STATEMEirr OF THE CASF.
The complainant, a Blade male, is employed by the Mobile District, Corps 
of Engineers, in the position of Architect, GS-ll.
On July 12, 1972, the complainant contacted an Equal Employment Opportunity 
Counselor and .indicated his desire to file a discrimination complaint con­
cerning the selection of another employee for a vacant G3-12 Architect’s 
position, h’o informal resolution of the matter was reached and complainant 
filed a formal complaint of discrimination on September 21, 1972, alleging 
that racial discrimination had occured in the selection of another employee 
for the vacancy in question.

C1
is

I

.

i

An investigation was conducted and an investigative report submitted on 
January 26, 1973. Based on the investigative report, a proposed disposi­
tion of the complaint was issued by the agency on November 2 , 1 9 7 3, deny­
ing the complaint of discrimination. The complainant then requested a 
hearing in coiinccticn with his complaint, which was conducted on Novem­
ber 30, 1973* In his report, the Complaint's Examiner recommended that a



finding be made bh.it the allegation of discrimination based on race ».v: not supported by the evidence.

AGENCY DICC TGI Cl I
rinal anency decision, issued on March 19, 1974, held that the evi­

dence of record did not substantiate complainant's alienation of racial 
•discrimination in regard to his non-selection for promotion to the posi­
tion of Architect, GS-12. However, the agency found that the Mobile Dis­
trict, Corps of Engineers had failed to implement the agency's affimativc 
Ixiual Employment Opportunity program; that the ccmoloinant had not been 
provided the opportunity for maximum utilisation of his education and 
trainLne; and that the complainant had been subjected to a climate of 
racial prejudice in the work environment at. the Mobile District. The 
agency ;dso found that complainant's promotional opportunities had been 
adversely affected and that except for his race, he mi pit have progressed 
under the Department's Career Program to the CG- 1 2  level in the Mobile 
District or elsewhere in the Corps of Engineers. It was also the agency 
decision that complainant was otherwise discriminated against an his em­
ployment situation. Eased on its finclines, the agency directed that t!ic 
complainant be raven continuing priority consideration for available G3-12 
■Vacancies in the Mobile District, Corps of Engineers, for which lie is 
.qualified, until complainant is selected for promotion or until he de­clines a bona fide offer.

) iK P i i j il KN T A T T CM 3 TO THE APPKAT.3 PJT/TEV,’ POAP.D

In Ins letter of appeal to the Board dated April 13, 1 9 7 the complainant 
expressed dissatisfaction with the agency's decision and requested a re­
view of his case. Specifically, the complainant questioned "tlie-thorough­
ness Ox the investigative findings of the Investigator assigned to his 
case, and he questioned the appraisals given the three candidates for the 
Gs-IE position in question. Complainant also refers to a further net of 
alleged discrimination occurring within the last five months, not pre­
viously made a part of his complaint of discrimination.

ANALYSTS AND FINDINGS
The Board lias considered the complainant 
entire record established in his case. A: allegations in light of the
Board finds that the complainant's allegation of raciala result of its review, the

• -----«---- —  w.scrimlnation inconnection with his non-selection for promotion to the specific G3-12 
Architect position is unsupported by the evidence of record.
Complainant's main argument throughout the complaint of discrimination has 
been that lie was the best qualified of the three candidates for the position

-47a-

■* •***.

1 •!* * '
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• .II

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• * s • •"% . . ,v, • ■ • • v -■•V**, v* \‘* 4 .

I T



3n question. In thin connection he quentionn the appraisals civ on to the 
other candidates by their supervisor, which appraisals formed the basin 
for the selecting official's final choice for the position.
The Board finds no evidence, other than the ’complainant'n unsupported al­
legations , that the appraisals in question were the result of racial bias 
on the part of the official who completed those appraisals, and that said 
official was not listed as an alleged discriminating ’parly. The record 
reflects that each of the candidates for the position in question was 
rated "Highly Qualified" for the position and the choice of any one of 
the candidates would have been justifiable. Moreover, the record indi­
cates that the selecting official (who is the aliened discriminating 
party) based his selection upon his intimate acquaintance with the work, 
experience and knowledges of all of the candidates, not just on the pro­
motion appraisals.
In situations where the available candidates are substantially equally 
qualified for a position, the selecting official has the discretion to 
choose who candidate whom he believes can best perform the duties of the 
position. In this case, there is no evidence that the selecting official': 
evaluation of the candidates and his subsequent selection for the position 
were based in any way upon any consideration of the candidates' races.
-While"there is evidence of past inequality of treatment of the complainant 
which, as determined by the agency Director of Equal Employment Opportunity 
indicates that the complainant was not given equal training and opportunity 
for advancement., the evidence strongly indicates that ony r.horgc of d’s- 
criminaticn in these practices would be laid against the prior Section 
Chief rather than the supervisor named by the complainant. In any event, 
the Board finds insufficient objective evidence to show that the failure 
to select the complainant for the vacant GS-12 position was because of 
hie race.
The complainant noted that copies of employee appraisals completed on 
June 1, 1972, v.'crc not included in the investigative file, aid lie has 
requested that the Board review the appraisals and the personnel files 
of the three candidates for the position in question in order to make a 
decision on the relative qualifications of these candidates. The com­
plainant has charged that the personnel files of the candidates will not 
substantiate the appraisals in question.
Pith regard to the exclusion of the appraisals from the investigative re­
port, the Board notes that employee appraisals are considered to be con­
fidential to the individual involved and that there is considerable 
latitude under Civil Service Commission regulations regarding the inclu­
sion of such appraisals in the investigative report. The Board also note: 
that employee appraisals arc highly subjective in nature and arc be­
tween the employee, his supervisor, and agency management. Finally, ns 
noted above, the selecting official indicated, in )iis justificationfor

.-48a-

«— • /

, K'-

1*

. V <v *> ’ i'r X .- > ■ "v- <1 r • > t - -

T



the -election he made that he used not, only the employeo appraisal tout also 
S o  ^ r l l e d r . c  of the abilities and performance o the car^dates^ 
vitli all three of whom lie had a lone and close working lelatjc..

• s a s ? ;

^ . s nxl!Sl'“ «S? I c c o r d i ^ r t h ^ ^ m a ^ : " ^  X k m i t c r  Xor . 
review by the Board in its adjudication of this appeal.
The Hoard notes that while the agency found no .evidence of 
tion in complainant’s non-selection lor promotion to tne
thi- instance, the agency did recommend corrective action be tJce.i m  tic
conrplairiaj^^s * ease b S s c /o n  a fin d in g th a t  theEngineers, had failed to implement the agency’s affirmati\e l.c>al n.̂ pl / 
ment Opportunity program. The corrective action was to ^ e  the form of 
tontinuinr priority consideration to the complainant lor C.>-1- Vucancxo ,.
e S a S  vas promoted to a G3-12 Architect’s position on May 5, 19 * 
according to information furnished the Hoard and thus, the prion y 
sidcratiou recommendation would now be moot.)

ti.

V>/

« V« »' *

DECinim
rurouciut to the foregoing, the decision 
Army in this case dated March 19» 197A,

jsueu by the Department of the 
3 hereby affirmed.

Civil Service regulations provide that the decision of the Hoard is final 
and that there is no further right of administrative appeal. awe ^ 
i)ic complainant is not satisfied with this decision, he is t-ntxtlc-u, unecr
section 717(C) or the Civil ltlshL Act ot 1964. «. ™^^^°coirt'uithin 3972. to file acivil action in an appropriate U.o. botnet Court wit
thirty (30)calendar days of his receipt of this decision.

For the Commissioners: ■

I.--*

I t -V v

ld / f (1i'.i -v J< -
VJilliam P. Berzak 
Chairman

October 4, 197A

-49a-

t. --

I

yivivvDl,D;v--A-'-v-



APPENDIX VII
Attachment 5 to FPM Ltr. 713-17

.Subject: NOTICE OF PROPOSED DISPOSITION OF DISCRIMINATION COMPLAINT

Irom: EEO Officer DATE:

Complainant

The purpose of this notice is to inform you of the proposed 
disposition of your discrimination complaint and your rights 
if you are dissatisfied with the proposed disposition.

o PROPOSED DISPOSITION

(Stale the specific proposed disposition of the 
comp1 aini)

o RIGHT OF HEARING

If you are dissatisfied with the proposed dis­
position, you ;n.iy request a hearing and decision 
by the agency head or his designee, if YOU NOTIFY 
THE AGENCY WITHIN 15 CALENDAR DAYS OF RECEIPT OF 
1HE HOI ICE that you desire a hearing.

o RIGHT OF DECISION WITHOUT A HEARING

If you are dissatisfied with the proposed dis­
position, you may request a decision by the head 
of tlie agency or his designee without a hearing.

If you fail to notify the agency of your wishes within the 15 
day period, the EEO Officer may adopt as the agency's final 
decision the proposed disposition shown above and will so 
notify you in writing. Upon receipt of notification you may 
appeal to the Civil Service Commission within 15 calendar days 
or file a civil.action in a Federal District Court within 30 
days.

If you appeal to the Coramission, you may still file a civil 
action within .50 days of receipt of the Commission decision 
or wttnin 180 days of your appeal to the Commission if you 
have not received a final decision from the Commission.

Note* to Agency:

A copy of the notice as given to the complainant should be 
filed by the agency in the complaint file.



—• • ivn ww**- »■ »>«t« # • n\A«LWUn L
tC rltc irv*  C 1, U)72]

APPENDIX VIII — A ll tinrMU *r% c>i«rKMr 0 *y t
— Complex + r \ rn#v 1*1# civil Action 
wlttun 30 day* of <1 ^ . 0 1 0 0  by 
Commruion or UiO dry* »f r-> 
ciuC f»*m

— Notu.«# o1 to fil* formal
comprint rrvutt t>* £tv«n »ft*<2l day*

■51a-

V . - ' t . ' vv' ./<, .A' '''V'vrrCV.'V^'^Vv*’VV** - V * ?.v VN»- -J*?/y!—.!> V .



PROCEDURES FOR PROCESS INC COUP1.A I NTS OF )) 1 SCI; I MI NAT I ON EASED ON 
RACK, ciol.Ult, RELIGION, SEX, OR NATIONAL OKI GIN

1. KMPlJOYKE contacts EEO COUNSELOR within 30 calendar days o£ allege 
discriminatory action. COUNSELOR lias 21 calendar days to attempt 
informal resolution.

If final counseling interview is not completed in 21 days, COUNSELOR 
must on 21st day give written notice of right to file complaint any 
time up to 15 calendar days after final interview.

2. If informal resolution fails, EMPLOYEE may file formal complaint with 
DIRECTOR OF EEO, AGENCY HEAD, INSTALLATION HEAD, EEO OFFICER, FWPC 
within 15 calendar days of final interview with COUNSELOR.

3. EEO OFFICER advises DIRECTOR OF ELO, who assigns INVESTIGATOR from 
jurisdiction of agency other than that in which complaint arose.

A. Investigation conducted; COMPLAINANT given copy of investigative file. 
EEO OFFICER provides opportunity for informal adjustment.

5. If adjustment not made, EEO OFFICER notifies COMPLAINANT in writing 
(i) proposed disposition, (2) right to hearing and decision by 
AGENCY HEAD, and (3) of right to decision by AGENCY HEAD without a 
hearing.

6. If COMPLAINANT does not reply within 15 calendar days, EEO OFFICER 
may adopt proposed disposition as decision of the agency, providing 
he has been delegated this authority'. Otherwise, complaint is 
forwarded to AGENCY HEAD (or his designee) for agency decision.
Upon receipt of decision, EMPLOYEE may appeal this decision or any 
final decision within 15 days to CSC or may file a civil action
in an appropriate U.S. District Court within 30 days.

7. If COMPLAINANT asks for hearing, agency requests CSC to assign 
complaints EXAMINER, who must be from agency other titan that in 
which complaint arose.

8. COMPLAINTS EXAMINER reviews file; remands complaint to agency if 
further investigation necessary; schedules and conducts hearing.

9. Hearing recorded and transcribed verbatim. COMPLAINTS EXAMINER 
makes findings, analysis, and recommended decision; forwards 
these and complaint file to the AGENCY HEAD (or his designee).

10. HEAD OF AGENCY (or his designee) makes agency decision, based on file, 
giving complainant copy of COMPLAINTS LX.;tMlNER s report. Must give 
specific reasons for rejection or modification of (COMPLAINIS EXAMINER s 
recommended decision in detail).

(over)

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pausest’*

t

i



11.

NOTE

COMPLAINANT has right to appeal 
within 13 calendar days.

to CSC* s BOARD OF APPEALS AND REVIEW

1. COMPLAINANT has right to file civil action in an appropriate
U.S. District Court:
a. within 30 calendar days of his receipt of 

notice of. final agency action on complaint
b. after 180 calendar days from date of filing 

a complaint with agency if there lias been 
no decision

c. within 30 calendar days of his receipt of 
notice of final action taken by CSC on 
complaint, or

d after 180 calendar days from dute of filing 
an appeal with CSC if no CSC decision

Filing of a civil action does not end agency processing of a 
complaint or CSC d<?.ci.sion

11 The agency shall furnish CSC monthly reports on all complaints 
pending within the agency. If an agency has not issued a 
decision or requested CSC to supply a complaints examiner 
within 73 calendar days of the date a complaint was filed, CSC 
may require special action or assume responsibility for
c ornp 1 a i n t.

pyifctr
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-53a-
• VX ». \ ' ’ * ' •‘‘A*'' , 'v

• -V- ■* '

H



_...__l i ■ ...l . .. —|«.W rt4.ii< '(

on How the Discrimination 
Complaints System Works

" N o  more serious task challenges our Nation 4
domestically than the achievement of equality 
of opportunity for all our citi7cns in e'ery 
aspect of their lives regardless of their race, 
color, religion, national origin, or sex.

Richard M. Nixon 
P r e s i d e n t  o f  th e  U n i t e d  S ta tes

i

*
Government's program for assuring equal employ­

ment opportunity outlaws bias in any personnel action 
in the Federal civil service. Yet, inevitably, there will 

t be times when some employees will experience situa- j ^
i tions in which they will believe they bavc been dis-
! criminated against because of race, color, religion, sex,
i or national origin. So the Civil Service Commission
, has developed a system for assuring that employee
; complaints of discrimination ate given fair and fast

consideration. This leaflet explains the w hy, what, how, 

j and when of that system.

i},.. T ’SV'r .v-?-
--- ------ -----------—

complaint system
In order to help eliminate b.uriers to equality of 

opportunity in all aspects of Federal employment, an 
improved complaint system has been established for 
those who feel they have been discriminated against 
because of race, color, religion, sex, or national origin. 
The procedures place strong emphasis on reaching 

j n  f o r  m a t  settlements of complaints.
The complaint system within each agency consists 

of the following:

Equal Employment Opportunity Counselors 
for informal settlement of problems

Equal Employment Opportunity Officers— for 

formal complaints
The Director of EEO — responsible to the agency 

head

Any employee who feels that he or she has been 
discriminated against on the basis of race, color, re 
hgion, sex, or national origin must fust discuss the 
problem with a trained Equal Employment Opportu­
nity Counselor before making a formal complaint. 
Agencies are required to designate I EO Counselors and 
make them accessible to employees. I"hc Equal Employ­
ment Opportunity Counselor operates independently 
from the formal complaint system, although he main­
tains a line of communication with management and 
the Equal Employment Opportunity Officer. It is ex­
pected that problems will he solved more readily by 
avoiding lengthy formal procedures as much as 

possible.



■ ' ' "V:

The Counselor will
® Listen sympathetically and help you specifically 

identify your problem.
• Study your case impartially and objectively, 

advising you of your rights.
• Answer your questions honestly.
• Discuss your problem with supervisors or asso­

ciates when it is advisable and if it is agreeable 
with you to do so.

• Attempt to resolve your problem informally.

The LEO Counselor reports regularly to the Equal 
Employment Opportunity Officer about his activities, 
but he will use your name only if he has your permis­
sion. When appropriate, he will make rccommenda-

err -------D

' y ■vwt*-,vr.C: - • ,V

tions for action to the EEO Officer where his involve­
ment is necessary to reach a solution to the problem.

You must contact the EEO Counselor within JO 
calendar days of the date of the incident that gave rise 
to your complaint or, if it is a personnel action, within 
30 calendar days of its effective date.

Your EEQ Counselor will do his utmost to find a 
sound and acceptable solution to your problem. He has 
21 calendar days from the time you report your prob­
lem to attempt an informal settlement. If at the end of 
this time the problem is not resolved, he will advise 
you of your right to file a formal complaint with the 
EEO Olficer or w ith certain other officials of the agency. 
You have the right to be represented at any stage in 
the presentation of a complaint, including the counsel-

If you decide to make a formal complaint, you have 
13 calendar days from the date of your last interview 
with the EEO Counselor in which to file it in writing 
with your EEO Officer, or other designated official of 
the agency.

The complaint must be specific and must be limited 
to the matters discussed with the EEO Counselor 

Once a formal complaint is accepted, the EEO Officer 
advises the Director of Equal Employment Opportu­
nity, who assigns someone from another part of your 
agency to make an independent investigation into the

v

\ . 
i

t 9

aCJ*-



„ ,r. . tr.Mh.w tî ii>.r>mil« F— .. — -• — ....-----v. .. ......4

matter. Tills major improvement.is the result of con­
tinuing effort to bring about complete fairness in the 
complaints system.

An impartial investigation is made You arc given 
a copy of the investigative file, an.I the Equal Employ- 
mem Opportunity Officer again provides an oppor­
tunity for an informal adjustment.

You arc then notified of the proposed disposition 
of your complaint. If you arc not satisfied, you ha\c 
tlic right to leoiicst a hearing, with subsequent decision 
by the head of your agency or his designee, or you may 
request such a decision without a hearing.

If you do not ask for either one within I 5 calendar 
days, the 1 1.0 Officer or other ollicia! delegated the 
authority may adopt the proposed decision as the de­
cision of the agent y.

If you request a hearing, the agency asks the Civil 
Service Commission to assign the case to an EEO 
Complaints kxamincr from another agency (most 
likely the Commission).

The Complaints Examiner reviews the file and has 
the opportunity to request further investigation and 
details. He schedules and conducts a hearing. The hear­
ing is recorded and transcribed verbatim. The Com 
plaints Examiner makes findings, an analysis, and a 
recommended decision. This information is forwarded 
along with the complaint file to the agency head or his 
designee, who is usually the Director of Equal Employ­
ment Opportunity.

The agency head or his designee then makes the 
final decision, based on the file, giving you, the com­
plainant, a copy of the Complaints Examiner’s report. 
If the agency head rejects or modifies the Complaints 
Examiner’s recommended decision, he must give 
reasons for doing so.

appeal or 
civil action

If you arc dissatisfied w ith the agency's decision on 
your complaint, you have a right to file an appeal with 
the Civil Service Commission's Board of Appeals and

Review (within 15 days) or you may file a civil action 
in a US. District Court (within 30 days). If you 
appeal to the Board of Appeals and Review and arc 
dissatisfied with the Board's decision on your appeal, 
you may still file a civil action (within 30 days of 
receiving the Board's decision).

You also have the right to file a civil action if you 
do not receive an agency decision within 180 days 
after you file a formal complaint, or if you do not 
receive a decision from the Board of Appeals and 
Review within 180 days after you file an appeal.

summary
The United States Government pledges equality of 

opportunity to all its employees. This commitment has 
been strengthened by action programs to meet the goal 
of equal op|x>rtunity in all aspects of Federal employ­
ment Progress toward equal opportunity has been 
made in recent years. You, the Federal employee, are 
invited to meet the exciting challenge of widely ex­
panding opportunities. Your abilities, your ideas, your 
commitment, can make true equality of opportunity a 
reality.

information 
in this 
leaflet

The preceding information is general in nature. If 
more specific information is needed, your EEO Coun­
selor or EEO Officer will assist you in obtaining it.

U.S. CIVIL SERVICE COMMISSION 
Washington, D.C.

FED FACTS 10 
October 1973

US COVCRNMLST fMiMTmS CTIKT , i m - O U I  114 

J n f i » l i ‘ by I h r  S u p e r in lr  n . lr n i  o f  [ u m rr .t t
U.S. Government l‘nntin< Ortr*. W«ihim*t<m. l»C J04UJ 

f*4u‘e  .'5 e r n t i  S to rk  N u m b e r  t«Q74»>



The Supreme Court 
of the United States

Phillip Jerome Lee
versus

United States of America

Petition and Briefs

Law Reprints
Criminal Law Series vol. 8, no. 37 
1976/1977 Term



IN THE

S u p r e m e  C o u rt of t!}C (Bmteb :§>tatc3
OCTOBER TERM 1970

No. 76-5187

PHILLIP JEROME LEE,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OT CERTIORARI TO THE UNITED STATES 
COURT OE APPEALS TOR THE SEVENTH CIRCUIT

PETITION

CONRAD K ELLEN BERG 
Notre Dame Law School 
Notre Dame, Indiana 46556

Court-Appointed Counsel 
fo r Petitioner



INDEX
Page

OPINION BELOW........................................  1

JURISDICTION ........................................  1

QUESTIONS PRESENTED.................................. 2
CONSTITUTIONAL PROVISION INVOLVED....................  2

STATEMENT OF THE F A C T S .............................  3
REASONS FOR GRANTING THE WRIT......................  4

CONCLUSION ..........................................  6
PROOF OF SERVICE....................................  7
CERTIFICATE OF SERVICE .............................  8

CITATIONS

Cases
Downum v. United States, 372 U.S. 734, 83 S.Ct.

1033 (T963) . . . “ 7 ............................................................. 5

Green v. United States, 355 U.S. 1S4, 7S S.Ct.
27r~(T957T . . ......................................................... 5

United States v. Jenkins, 420 U.S. 358, 95 S.Ct.
1006 (1975). . . . r r ...........................  6

United States v. Jorn, 400 U.S. 470, 91 S.Ct.
547 (1971) . . . . ' ............................................................. 5, 6

Constitutional Amendment
Amendment V, Constitution of the United States . . .  4 6

i



IN THE SUPREME COURT OF THE UNITED STATES 
OCTOBER TERM 1976 

No. _______ _

Phillip Jerome Lee,
Petitioner, 

v.
United States of America, 

Respondent.

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

FOR THE SEVENTH CIRCUIT

Phillip Jerome Lee respectfully prays that a writ of 

certiorari issue to review the judgment of the United States 

Court of Appeals for the Seventh Circuit entered in the above 

entitled case (No. 75-1836) on July c , 1976.

OPINION BELOW

The opinion of the court of appeals has not as yet 

been reported. A copy of that opinion is included as Appendix.

JURISDICTION

The judgment of the Court of Appeals was entered on 

July 21, 1976. The jurisdiction of this Court is invoked 

pursuant to 28 U.S.C. § 1254(1).

1



QUESTIONS PRESENTED

Whether the petitioner was denied due process. 

Whether the petitioner was twice put in jeopardy.

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment to the United States Constitution
provides:

"...nor shall any person be subject for the same 
offense to be twice put in jeopardy of life or limb; 
nor be deprived of life, liberty or property, without 
due process of law...."

2



STATEMENT OF THE FACTS

The petitioner, Phillip Jerome Lee, was brought to 

trial on July 16, 1974, in the United States District Court for 

the Northern District of Indiana, Fort Wayne Division, for the 
alleged robbery of Charles Bilskie (Billskie) on December 21, 1973. 

A bench trial was held, at the beginning of which the petitioner 

moved for dismissal of the information because it failed to 
allege that the offense was committed knowingly and with the 
intent to deprive the owner of the use and benefit of the property.

The District Court judge took this motion under advise­

ment and proceeded to hear the United States Attorney's entire 

case. The petitioner again made a motion to dismiss and then 

rested. After stating that there was no doubt in his mind as to 
the petitioner's guilt, the District Court judge dismissed the 
information because of the defect appearing on its face, stating, 

"No such allegation is contained, no matter how I stretch my 

imagination when I read the information. There, is nothing here 

that smacks of an element of intent." (Transcript of Trial on 

July 16, 1974, pages 67-68).
On September 25, 1974, a Grand Jury returned an indict­

ment charging the petitioner with the same crime concerning the 
same event. The petitioner was arraigned before the same District 

Court judge, who then disqualified himself because of his earlier 
comments concerning the petitioner's guilt. On June 23, 1975, 
the petitioner was tried in a bench trial before another 

District Court judge and found guilty.

3



REASONS FOR GRANTIMG THE WRIT

I. DUE PROCESS WAS VIOLATED BY THE ACTIONS 
OF THE UNITED STATES ATTORNEY AND THE 
DISTRICT COURT JUDGE.

The petitioner was brought to trial the first time 
under an information that was defective on its face. His lawyer 
moved immediately to dismiss the information for that reason.
The United States Attorney declined to amend it, and the District 
Court judge was determined to proceed. The trial continued through 
the presentation of all the evidence. At the end of the case the 
trial judge dismissed the information because of the defect on its 
face.

In this situation, the United States Attorney should 
have asked leave to amend the information before the cause was 
pursued through the presentation of all the evidence. When the 
United States Attorney failed in that duty, the trial judge 
should have dismissed the information.

Instead of so acting, they allowed the petitioner to 
sit through the psychological trauma of a complete trial. As 
far as the petitioner was concerned, he was being tried for 
robbery in a Federal court; he suffered all the fear and anxiety 
that attend such a proceeding for a defendant. This course of 
action by the United States Attorney and by the District Court 
judge must be considered an abuse serious enough to have 
violated petitioner's Fifth Amendment right to due process of law. II.

II. THE SECOND TRIAL FOR THE SAME ALLEGED OFFENSE 
VIOLATED THE PETITIONER’S FIFTH AMENDMENT 
PROTECTION AGAINST DOUBLE JEOPARDY.

Despite the fact that the original information was 
defective, the cause was pursued twice to the conclusion of all

4



the evidence. After he had heard all the evidence, the trier 

of fact, the District Court judge, went so far as to conclude 

and state that on the evidence presented he had no doubt as to 

the defendant's guilt. He then dismissed the case because he 
considered the information defective. The judge later con­

sidered his comment as to the defendant's guilt sufficient to 
disqualify himself from a second trial, and said that he had 
very serious questions in this case in regard to double jeopa.rdy. 

(Arraignment, February 6, 1975).
Though there are holdings of this Court to the effect 

that jeopardy does not attach to a trial based on a faulty charge, 
it cannot be denied that the petitioner was placed in factual 
and psychological jeopardy. In the first trial, the petitioner's 

lawyer immediately moved to dismiss the information as faulty. 

Neither the United States Attorney nor the District Court judge 

was willing to agree with this contention. The petitioner, a 
layman, reasonably expected they would never agree and that their 

view might —  though erroneous--prevail. The crime carried a 

heavy penalty.
This Court has often expressed a concern that a 

defendant should not be made to suffer the psychological trauma 

of a complete trial twice for the same alleged offense. yllCf-'Ai 

v. United States, 355 U.S. 174, 78 S.Ct. 221 (1957).
In Downum v. United States, the jury was impanelled for 

the first trial but the prosecutor was not ready to proceed.
This Court held that the prosecutor's neglect caused jeopardy to 

attach to that first trial. Downum v. United States, 372 U.S. 

734, 83 S.Ct. 1033 (1963). In United States v. Jorn, the trial 

judge discharged the jury in the first trial over the defendant s 
objection because the judge thought that the witnesses had not 
been properly warned of their rights. This Court held that such 
an abuse of discretion by the judge caused jeopardy to attach to

5



that first trial. United States v. Jorn, 400 U.S. 470, 91 S.Ct.

547 (1971). In United States v. Jenkins, the District Court judge 
dismissed the indictment, before any evidence was heard, for 
reasons other than a finding of guilt or innocence. This Court 
held that jeopardy attached to that trial, stating that "it is 
enough for purposes of the Double Jeopardy Clause,...that further 
proceedings of some sort, devoted to the resolution of factual 
issues going to the elements of the offense charged, would have 
been required upon reversal and remand." United States v.
Jenkins, 420 U.S. 358, 95 S.Ct. 1006 (1975).

The petitioner claims that his first trial was 
similar to the first trials in the above-mentioned cases because 
of the neglect of the United States Attorney in failing to 
amend the information, because of the abuse of discretion by 
the District Court judge in pursuing the trial to the end of 
the case, and because the first information was dismissed for 
reasons other than a factual determination of guilt or innocence.

The petitioner claims that in his situation jeopardy 
attached to his first trial, and that a second prosecution amounted 
to a violation of his Fifth Amendment protection against double 
j eopardy.

CONCLUSION

The events in this series of trials deprived the 
petitioner of due process of law and also subjected him to 
double jeopardy, both in violation of the Fifth Amendment. 
Therefore, the petitioner requests that certiorari be granted 
and that his conviction be reversed.

Respectfully submitted,

Conrad Kellenberg
Counsel for Petitioner
University of Notre Dame 

Law School
Notre Dame, Indiana 46556

6



No. 76-5187

IN THE SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1976

PHILLIP JEROME LEE, PETITIONER 

v.
UNITED STATES OF AMERICA

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

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ROBERT H. BORK,
Solicitor General ,

RICHARD L. THORNBURGH, 
Assistant Attorney General,

JEROME M. FEIT,
ROBERT H. PLAXICO, 
Attorneys,
Department of Justice, 
Washington ,_D .C .__20530.

7





IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

No. 76-5187
PHILLIP JEROME LEE, PETITIONER

UNITED STATES OF AMERICA

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

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW
The opinion of the court of appeals (Pet. App. A) 

is reported at 539 F.2d 612.
JURISDICTION

The judgment of the court of appeals was entered on 
July 21, 1976. The petition was filed on August 9, 1976. 
The jurisdiction of this Court is invoked under 28 U.S.C. 
1254(1).

QUESTION PRESENTED
Whether petitioner, who waited until the commencement 

of trial to challenge a defect in the information against 
him, was properly tried a second time after the initial 
information was dismissed upon his motion.

STATEMENT
After a jury-waived trial in the United States 

District Court for the Northern District of Indiana, 
petitioner was convicted of theft under the assimilative

9



crimes statute, 18 U.S.C. 13, and I.C. 35-17-5-3, Burns 
Ind. Stat. 3030. He was sentenced to five years’ 
imprisonment. The court of appeals affirmed.

The evidence, not in dispute here, showed that 
Charles Bilskie, who was blind, operated a news stand and 
candy concession in the lobby of the Fort Wayne, Indiana, 
Post Office. On December 21, 1973, after Mr. Bilskie 
had placed his two wallets on a counter behind his stand, 
petitioner was observed by a postal security officer going 
behind the counter and taking the wallets. The officer 
shouted at petitioner, who tried to escape but was 
apprehended.

The district court convened petitioner's jury-waived 
trial on July 16, 1974. After the prosecutor presented 
his opening statement outlining the government's evidence 
(I, Tr. 2-3), the trial judge invited defense counsel to 
make his opening statement. Instead, defense counsel moved 
to dismiss the information against petitioner, in part on 
the ground that the information was fatally defective for 
failure to state that petitioner had committed the offense 
knowingly. The trial court pointed out that petitioner 
could have raised this motion before the commencement of 
trial (I, Tr. 3):

Well, I will consider it, but you certainly 
were in the case before this morning. It 
is difficult to deal with a motion to dismiss 
if you raise any technical questions, and 
you don't give me the opportunity in advance 
of time to research them.

The trial court denied petitioner's motion and proceeded 
with trial, while agreeing to research the issue raised

1/ I.C. 35-17-5-3, Bums Ind. Stat. 3030 provides:
Theft in general —  A person commits theft when he (1) 
knowingly; (a) obtains or exerts unauthorized control 
over property of the owner ***.

10



in the motion and consider it at a later time. Petitioner 
did not object to the continuation of the trial. (I, Tr. 5).

After the government's case, the defense rested without 
presenting any witnesses. The motion to dismiss was then 
again considered and the trial court determined that the
information was indeed defective for failure to state the

2/element of knowing participation. — Accordingly, the trial 
court dismissed the information (I, Tr. 66-67). Following 
this dismissal petitioner was indicted. The indictment 
charged that petitioner acted knowingly. After a bench 
trial petitioner was convicted.

Petitioner argued on appeal that the Double Jeopardy 
Clause barred his second trial. The court of appeals 
concluded that a dismissal, granted at the behest of defen­
dant and required by a defect in the information, is 
identical for practical purposes to the mistrial declared 
in Illinois v. Somerville, 410 U.S. 458, and that the 
Double Jeopardy Clause accordingly does not bar a second 
trial in these circumstances.

ARGUMENT
1. This case is controlled by Illinois v. Somerville, 

410 U.S. 458. In Somerville, upon the prosecutor's motion 
made after jeopardy had attached, a mistrial was declared 
and a defective indictment dismissed. A new indictment was 
procured, the defendant was tried upon that indictment and

2/ The trial judge was correct. The Assimilative Crimes Act was intended 
to establish "complete current conformity with the criminal laws of the 
respective States in which ***[federal] enclaves are situated" (United 
States v. Sharpnack, 355 U.S. 286, 293). Under Indiana law, it must be 
shewn that a defendant charged under I.C. 35-17-5-3, Bums Ind. Stat.
3030 knowingly committed the offense. Linnemeir v. State, 330 N.E. 2d 
373, 376; Martine v. State, 300 N.E. 2d 128, 131; Monroe v. State, 339 
N.E. 2d 102, 103; Trader v. State, 331 N.E. 2d 469; Lay v. State, 329 N.E. 
2d 650. The information therefore was required to allege that petitioner 
committed the crime knowingly. United States v. Debrow, 346 U.S. 374, 376.

11



convicted, and this Court held that the second trial and 
conviction was not barred by double jeopardy. Although 
Somerville had expressly asserted his desire to proceed to 
verdict with the jury then empaneled, this Court concluded 
that termination of the first trial over his objection 
was justified by "manifest necessity" and "the ends of 
public justice" because the defect in the indictment 
made it impossible, were the trial allowed to proceed, to 
procure a valid guilty verdict (410 O.S. at 469). The 
Court held that under such circumstances "the defendant's 
interest in proceeding to verdict is outweighed by the 
competing and equally legitimate demand for public justice" 
(id. at 471).

Here, as in Somerville, petitioner's first trial was
terminated prior to any finding of guilt or innocence
because an error in the institution of the proceedings

3/made a valid conviction impossible. ~ Indeed, petitioner's 
position is materially weaker than was Somerville's, since, 
rather than assert his "valued right to have his trial 
completed by [the] particular tribunal" before which it had 
commenced (Wade v. Hunter, 336 U.S. 684, 689; United States 
v. Jorn, 400 U.S. 470, 484), petitioner actually sought to 
have the proceedings terminated by dismissal of the defective 
indictment. 1/ In our view, since the principal reason why

3/ The termination in Somerville was labelled a mistrial rather than a 
dismissal, but this Court has rejected the notion that the disposition 
of the double jeopardy question is dependent on the label attached to 
the termination. See United States v. Sisson, 399 U.S. 267, 290;
United States v. Jorn, 400 U.S. 470, 478 n. 7; Serfass v. United States, 
420 U.S. 377, 392. ------  ------------
4/ Petitioner's claim (Pet. 4) that the government declined to amend the 
information when its defect was pointed out is incorrect. Petitioner 
never raised the possibility of amending the information (cf. Fed. R. 
Crim. P. 7(e)) but only urged dismissal of the charge. What is more, 
petitioner could have raised his objection at any tine prior to trial.
The trial court could then have dismissed the information and the 
government could have filed an amended information or sought an indict­
ment, as it ultimately did. This stands as an independent argument 
(continued on next page)12



the Double Jeopardy Clause prohibits retrials after some 
mid-trial, pre-verdict terminations of trials is to protect 
the defendant's "valued right" to proceed to verdict in 
the trial then underway, double jeopardy protection should 
not be afforded (absent prosecutorial or judicial overreach­
ing) to defendants who do not assert their "valued right," 
but instead themselves request termination of the first 
trial. Cf. United States v. Gentile, 525 F .2d 252 (C.A. 2), 
certiorari denied, 425 U.S. 703; United States v. Sedgwick,
345 A. 2d 465 (D.C. Ct. App.), certiorari denied, May 4,
1976 (No. 75-5986) .

The cases upon which petitioner relies do not support 
a contrary result. In Downum v. United States, 372 U.S.
734, the termination of the first trial operated as a "post 
jeopardy continuance to allow the prosecution to strengthen 
its case" (Illinois v. Somerville, supra, 410 U.S. at 469); 
such a factor was no more operative here than in Somerville.
In Jorn, unlike the instant case, the trial court's action 
was an abuse of discretion, and the defendant not only had 
not requested termination of the trial but was afforded no 
opportunity to register any objection to the trial court's 
abrupt discharge of the jury (400 U.S. at 487). Finally,
United States v. Jenkins, 420 U.S. 358, involved a deter­
mination in the defendant's favor on the merits, made by the 
factfinder at the conclusion of the trial; the ruling in 
the instant case was plainly not a determination on the merits; 
the judge did not act in his capacity as fact-finder in 
dismissing the information, and thus Jenkins does not aid 
petitioner.

2. We recognize that this case touches upon an area 
of double jeopardy jurisprudence -- the permissibility of 
government appeals and/or retrials following mid-trial

(continued frcm previous page)
why the Double Jeopardy Clause does not forbid the second trial. United 
States v. Kehoe, 516 F. 2d 78 (C.A. 5), certiorari denied, 424 U.S. 909.

13



terminations by the judge as a result of some legal ruling 
—  that we believe is in great need of further examination 
by this Court. We have urged the Court to undertake this 
inquiry in New York v. Brown, petition for writ of certiorari 
pending, No. 76-358, and we continue to believe that certiorari 
should be granted in that case and the issue it presents 
should be resolved at the Court's earliest convenience. —^

There is, however, some solid ground in this area that 
need not presently be repatrolled. A second trial is barred 
when the finder of fact has returned a verdict of acquittal, 
even though such verdict may be the product of legal error 
(United States v. Wilson, 420 U.S. 332, 344-351). On the 
other hand, the Double Jeopardy Clause does not bar a second 
trial when a defendant has moved for a mistrial (United States 
v. Dinitz, 424 U.S. 600), has had a conviction set aside on 
appeal or collateral attack (United States v. Tateo, 377 U.S. 
463), or, as in this case and Somerville, when a defect in 
the institution of the proceedings, not going to the merits 
of a defendant's guilt or innocence, makes a termination of 
the proceedings manifestly necessary in the interests of 
public justice.

In sum, we submit that there is no realistic prospect 
that cases such as United States v. Martin Linen Supply Co.,
No. 76-120, certiorari granted November 1, 1976, or New York 
v. Brown, supra, should the Court agree to hear it, would lead 
to the overruling or material impairment of the holding of 
Somerville. If we are correct that Somerville controls this 
case, no useful purpose could be served by granting review

5/ Since the Court has not acted upon New York's petition, we surmise that 
it may be holding the case pending disposition of United States v. Martin 
Linen Supply Co., No. 76-120, certiorari granted November 1, 1976, Because 
Martin Linen does not involve a mid-trial termination, but rather one 
occurring at a time when the Double Jeopardy Clause would not have barred 
a retrial, we think it unlikely that the decision in Martin Linen will be 
of material assistance in resolving the important issues in Brown, and we 
continue to believe that the Court should hear Brown this Term.



in the instant case or by holding it to await the disposition 
of other cases now pending.

CONCLUSION

The petition for a writ of certiorari should be denied. 
Respectfully submitted.

ROBERT H. BORK, 
s°licitor General.

NOVEMBER 1976.

15





IN THE

Supreme Court of tljeHniteb ^tatre.
OCTOBER TERM 1976

No. 76-5187

PHILLIP JEROME LEE,

Petitioner,
v.

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE SEVENTH CIRCUIT

BRIEF FOR THE PETITIONER

CONRAD KELLENBERG 
Notre Dame Law School 
Notre Dame. Indiana 46556

Court-Appointed Counsel 
fo r Petitioner

17





TABLE OF CONTENTS
Page

OPINION BELOW .....................    1

JURISDICTION ....................................................................... 2

QUESTION PRESENTED ......................................................  2

STATUTES INVOLVED ......................................................... 2

STATEMENT OF THE CASE .................................................  3

SUMMARY OF ARGUMENT .................................................... 4

ARGUMENT:

I. THE DOUBLE JEOPARDY CLAUSE OF
THE FIFTH AMENDMENT BARS PETI­
TIONER’S RETRIAL .................................................  5

A. Introduction ........................................................... 5

B. There are Compelling Policy Reasons for
Invoking The Double Jeopardy Clause ................  6

C. The First Trial Clearly Went Beyond the 
Point at Which Jeopardy Attached, Since
the Trial Court Heard all the Evidence ................  8

D. Double Jeopardy Protection May be In­
voked When the First Trial Did Not 
Result in a Conviction and a Reversal
Thereof ................ ............................................- ■ 12

E. A Second Trial is not Allowed, Since the 
Timing o f the Dismissal was not Dictated 
by “ Manifest Necessity” or the “ Ends of
Public Justice”  ....................................................... 14

II. THE DUE PROCESS CLAUSE OF THE
FIFTH AMENDMENT BARS PETI­
TIONER’S RETRIAL .................................................. 25

CONCLUSION ..........................................................................28

(i)

19



TABLE OF AUTHORITIES

Cases: Page

Ashe v. Swenson, 397 U.S. 436 (1970) .....................................  1 1

Benton v. Maryland, 395 U.S. 784 (1969) ......................12,26,27

Brady v. Maryland, 373 U.S. 83 (1963) ............. ........................ 27

Brock v. North Carolina, 344 U.S. 424 (1953) ........................  26

Bryan v. United States, 338 U.S. 552 (1950) ...........................  12

Downum v. United States, 373 U.S. 734 (1963) .....................  17

Dreyer v. Illinois, 187 U.S. 71 (1902) ........................................  16

Forman v. United States, 361 U.S. 416 (1960) ........................  12

Gori v. United States, 367 U.S. 364 (1961) ........................ 15,24

Green v. United States, 355 U.S. 184 (1957) .............  7,9,12,13

Illinois v. Somerville, 410 U.S. 458 (1973) ........................ passim

Keerl v. Montana, 213 U.S. 135 (1909) .....................................  16

Logan v. United States, 144 U.S. 263 (1892)   16

L >vato v. New Mexico, 242 U.S. 199 (1916)  16

Moss v. Glenn, 189 U.S. 506 (1903) ...........................................  16

North Carolina v. Pearce, 395 U.S. 711 (1969) ........................ 27

Palko v. Connecticut, 302 U.S. 319 (1937) ................................ 26

Rochin v. California, 342 U.S. 165 (1952) ................................ 25

Serfass v. United States, 420 U.S. 377 (1975) ........................  6,9

Stroud v. United States, 251 U.S. 15 (1919) ...............................12

Twining v. New Jersey, 211 U.S. 78 (1908) ..............................26

United States v. Agurs, ____ U.S. _____ , 96 S. Ct.
2392 ,2401(1976)  ................................................................... 23

United States v. Ball, 163 U.S. 662 (1896) .....................  9,12,14

United States v. Dinitz, 424 U.S. 600 (1976) . . 15,19,20,24,25

United States v. Jenkins, 420 U.S. 358 (1975) ........................ 18

United States v. Jorn, 400 U.S. 470 (1971) ...................12,17,19

(ii)

20



Page

United States v. Lee, 539 F.2d 612 (1976) .................................

United States v. Perez, 9 Wheat. 579 (1824) ............ 8,13,14,16

United States v. Tateo, 377 U.S. 463 (1964) ...................12,13

United States v. Wilson, 420 U.S. 332 (1975) . . . .5,7,12,13,15

Wade v. Hunter, 336 U.S. 684 (1949) ................................... 12

United States Constitution:

Fifth Amendment ......... ' ........................................... .. Passim

Statutes:

Title 18, U.S.C. sec. 13 ........................................................ 2,3

Title 18, U.S.C. sec. 3731   18

Section 10-3030 Burns Indiana Statutes ..................................2,3

Miscellaneous:

Merriam-Webster's Seventh New Collegiate Diction­
ary ..........................................................................   12

Standards Relating to the Prosecution Function,
American Bar Association Project on Standards
for Criminal Justice ........................................................... 23

(Hi)

21





IN THE

S u p r e m e  C o u rt of tlje ;§>tateg
OCTOBER TERM 1976

No. 76-5187

PHILLIP JEROME LEE,

Petitioner,

UNITED STATES OF AMERICA,

Responden t.

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE SEVENTH CIRCUIT

BRIEF FOR THE PETITIONER

OPINION BELOW

The opinion o f the United States Court o f Appeals 
for the Seventh Circuit is reported at 539 F.2d 612 
(App. p. 17). The United States District Court for the 
Northern District o f Indiana did not issue an opinion.

23



2

JURISDICTION

The judgment o f the Court o f Appeals was entered 
on July 21, 1976 (App. p. 17). The petition for a writ 
o f Certiorari was filed on August 9, 1976. and was 
granted on January 10, 1977. The jurisdiction of this 
Court rests on 28 U.S.C. Sec. 1254(1).

QUESTION PRESENTED

Was the petitioner deprived o f his right not to be put 
twice in jeopardy o f life or limb, or deprived o f his 
liberty without due process o f law, if  his motion for 
dismissal o f the defective information, made at the 
pretrial stage, was taken under advisement and not 
decided by the trial court until all the evidence had 
been heard, the information was then dismissed just 
before a verdict was rendered, and a second complete 
trial was had, which resulted in conviction?

STATUTES INVOLVED

The portion o f the United States Constitution in­
volved is the Fifth Amendment, which reads in perti­

nent part:

. . . nor shall any person be subject for the same 
offense to be twice put in jeopardy o f life or 
limb; . . . nor be deprived o f life, liberty, or prop­
erty, without due process o f law; . . .

The statutes involved in the information filed against 
the defendant are Title 18, U.S.C. Section 13, and 
Section 10-3030 Bums Indiana Statutes (App. p. 5).24



3

STATEMENT OF THE CASE

On February 6, 1974, petitioner Phillip Jerome Lee 
was charged in an information with violating Title 18, 
United States Code Sec. 13 and Section 10-3030 Burns 
Indiana Statutes. The information alleged a theft by 
petitioner o f property belonging to Charles Bilskie, on 
land acquired for the use o f the United States and 
under the exclusive jurisdiction thereof.

Petitioner waived his right to trial by jury. On July 
16, 1974, prior to the commencement o f the trial, 
petitioner moved to dismiss the information because it 
failed to allege that the offense was committed know­
ingly and with the intent to deprive the owner o f the 
use and benefit o f the property. Hon. Jesse Eschbach, 
in the District Court for the Northern District o f 
Indiana, stated that he would not rule on the motion at 
that time and took it under advisement (1st Tr. Trans, 
pp. 3-5, App. pp. 7-9). The Court proceeded to hear 
the entire case. After both sides rested, and before any 
verdict was given, the District Court dismissed the 
information. The District Court stated that the defect 
in the information was obvious on its face: “ No such 
allegation is contained, no matter how I stretch my 
imagination when I read the Information. There is 
nothing here that even smacks o f an element o f intent.”  
(1st Tr. Trans, pp. 67-68, App. p. 13).

On September 25, 1974, a Grand Jury returned an 
indictment charging the petitioner with the same crime 
concerning the same event. This indictment was drawn 
so as to cure the defect in the information. On June 
23, 1975, the petitioner was tried in a bench trial 
before Hon. Robert Grant, Judge Eschbach having 
disqualified himself. The petitioner was found guilty at

25



4

the second trial, and on August 9, 1975, petitioner was 
sentenced to be imprisoned for one to five years, and 
to be disenfranchised and rendered incapable o f holding 
any office o f trust or profit for a period o f five years.

A direct appeal was taken to the United States Court 
o f Appeals for the Seventh Circuit. In a decision 
rendered July 21, 1976, that Court affirmed. The 
opinion is found at 539 F.2d 612.

SUMMARY OF ARGUMENT

Prior to the commencement o f petitioner’s first trial, 
he objected to the sufficiency o f the charging informa­
tion. Instead o f ruling on the motion or granting a 
continuance to research the law, the trial court took 
the motion under advisement and, in a bench trial, 
heard all the evidence. Before any verdict was given, the 
trial court granted petitioner’s motion and dismissed the 
action. The Government indicted petitioner for the 
same crime, and a second trial was held, which resulted 
in conviction. That second trial was barred by the 
Double Jeopardy Clause and the Due Process Clause o f 
the Fifth Amendment.

26



5

ARGUMENT

I.
THE DOUBLE JEOPARDY CLAUSE OF 
THE FIFTH AMENDMENT BARS PETI­
TIONER’S RETRIAL

A. Introduction

The Double Jeopardy Clause is an essential bulwark 
in the protection o f individuals from prosecutorial or 
judicial abuse. It enunciates a “ policy o f avoiding 
multiple trials, [which] has been regarded as so impor­
tant that exceptions to the principle have only been 
grudgingly allowed.” 1

Every case in this Court in which it was held that a 
defendant was not entitled to invoke the protection o f 
the Double Jeopardy Clause falls into at least one o f 
three categories: 1) The first trial was terminated at an 
early stage-“ before the attachment o f liability” ; 2) The 
first trial was prosecuted up through a verdict o f guilty 
against the defendant; or 3) The first trial was termi­
nated by a mistrial required by “ manifest necessity,” 
such that the “ ends o f public justice”  suggest that it 
would be unfair to have precluded the Government 
from proceeding with a second prosecution.2

1 United States v. Wilson, 420 U.S. 332, 343 (1975).

2 This category is the most difficult to describe by a 
short-hand rule. “ [V irtually all o f the cases turn on the 
particular facts and thus escape meaningful categorization . . .”  
Illinois v. Somerville, 410 U.S. 458, 464 (1973).

27



6

The case at bar falls into none o f  these categories. 
Therefore, the Double Jeopardy Clause should bar a 
second trial.

Without a doubt, “ liability attached”  at the first 
trial. Not only is the Serfass test,3 o f beginning to hear 
evidence, satisfied; here all the evidence was heard. 
Second, in contrast to cases in which a judgment was 
reversed on appeal, in this case the trial court declined 
to render a verdict; after the evidence was heard, the 
court agreed that the information charging defendant 
was plainly defective, finally, there were numerous 
alternatives to proceeding in this highly prejudicial 
manner. There was no “ manifest necessity”  for having 
two trials.

Petitioner suggests that there are sound policy rea­
sons why the Constitution requires the invocation o f 
the Double Jeopardy Clause when none o f the above 
three situations exists. The cases in this Court clearly 
support such a result.

B. There are Compelling Policy Reasons for 
Invoking the Protection of the Double Jeop­
ardy Clause

Historically, the Double Jeopardy Clause was a 
mechanism for protecting individuals from excessive 
zeal on the part o f the prosecutor. Trial by jury and an 
independent judiciary are some devices to protect the

3Serfass v. United States, 420 U.S. 377, 388 (1975). See text 
accompanying fn. 7, infra.

28



7

individual. But the Double Jeopardy Clause was di­
rected at a particular evil. Absent it, a prosecutor might 
bring continued actions against an individual, for the 
same alleged crime, until some judge or jury were 
willing to acquiesce in a guilty verdict. Therefore, the 
double Jeopardy Clause, in its simplest form, is directed 
at preventing multiple prosecutions; it states that once 
an individual is tried, he may not be charged with, or 
tried for, the same offense.4

The Double Jeopardy Clause serves additional func­
tions. It is clear that the very process o f undergoing 
trial is a traumatic experience. It goes without saying 
that the pretrial and trial processes cause anxiety and 
embarrassment for the defendant, for he faces the very 
real risk that he will be deprived o f his life or liberty. 
This emotional harm is compounded by the adverse 
publicity in the media, the embarrassment to him, his 
family and friends, financial expense, possible loss o f 
job, and the social ostracism that result from the 
criminal process. Therefore, the Double Jeopardy Clause 
proclaims a policy that, absent compelling need, it is 
improper—in fact, unconstitutional—to subject an indi­
vidual to these traumas more than once.5

4 “ [T]he underlying premise was generally that a defendant 
should not be twice tried or punished for the same offense.” 
United States v. Wilson, 420 U.S. 332, 339 (1975).

5 “ [T] he State with all its resources and power should not be 
allowed to make repeated attempts to convict an individual for 
an alleged offense, thereby subjecting him to embarrassment, 
expense and ordeal and compelling him to live in a continuing 
state of anxiety and insecurity . . .” Green v. United States, 355 
U.S. 184, 187 (1957).

29



8

Finally, the Double Jeopardy Clause furthers notions 
o f procedural fairness. It contains a due process 
concept. Any trial attorney would have a greater chance 
o f success if he or she could first have a dress rehearsal 
o f the trial—complete with defendant, witnesses and 
judge-prior to the “ trial that counted.”  Absent the 
Double Jeopardy Clause, the prosecution could learn if 
the defendant would take the stand in his own behalf, 
and if  so, what he would testify to. The prosecution 
could learn the questions that the defendant would ask 
o f the prosecution’s witnesses on cross-examination. 
The prosecution could learn every detail o f the defen­
dant’s alibi. The prosecution could learn which o f its 
witnesses performed well under the stress o f trial, and 
which witnesses might best not be used at the second, 
“ real trial.”  Therefore, the Double Jeopardy Clause cuts 
o ff this option unless there is a “ manifest necessity”  for 
holding a second trial.6

C. The First Trial Clearly Went Beyond the 
Point at Which Jeopardy Attached, Since the 
Trial Court Heard all the Evidence

Crucial to the invocation o f the Double Jeopardy 
Clause is a determination o f when jeopardy “ attaches.”

As an aid to the decision o f cases in which the 
prohibition o f the Double Jeopardy Clause has 
been invoked, the courts have found it useful to 
define a point in criminal proceedings at which the 
constitutional purposes and policies are implicated 
by resort to the concept o f “ attachment of 

__jeopardy.”  . . .  In the case o f a jury trial, jeopardy

6 United States v. Perez, 9 Wheat. 579 (1824).

30



9

attaches when a jury is empanelled and sworn. . . .
In a non-jury trial, jeopardy attaches when the
court begins to hear evidence.7

In the case at bar, since the trial court not only began 
to hear evidence, but in fact heard the entire case, there 
can be no doubt that jeopardy attached.

The opinion o f the court below suggests that, 
notwithstanding the fact that jeopardy “ attached,”  
there was in fact “ no trial”  because the information 
was defective. The theory would appear to be that 
since, as a matter o f law, the defendant could not have 
been convicted under that information, the entire 
procedure was void ab initio, and the court at the 
second trial could act as i f  the first trial had never 
taken place.8

One hardly needs citations for the principle that 
people have been imprisoned notwithstanding the tact 
that the indictment or information charging them with 
a crime was defectively drawn.9 The defect may not be 
recognized until the appellate process has run its course, 
often several years after the defendant is initially 
deprived o f his liberty. In fact, the defect may not be 
recognized until years later, only upon collateral attack, 
or even not at all, since the defendant may already have

7Serfass v. United States, 420 U.S. 377, 388 (1975) (Em­
phasis added) (Citations omitted).

8 This Court has firmly rejected such an argument if the 
defendant was acquitted, even when the indictment was so 
defective that it could not have supported a conviction. United 
States v. Ball, 163 U.S. 662 (1896).

9See United States v. Ball, 163 U.S. 662, 668 (1896): “Many 
hundreds, perhaps, are now in the state prison on erroneous 
indictments, who, however, have been fairly tried on the merits.’

31



10

been released from incarceration. Thus, to suggest that 
petitioner could “ never”  have been deprived o f his 
liberty on this information is either naive or disingenu­
ous.

The opinion below overlooks two o f the underlying 
policy reasons tor having double jeopardy protection. 
First, even if, on appeal, it would turn out that any 
conviction would have to be reversed, and even i f  the 
defendant was not deprived o f his liberty in the 
meantime, the petitioner did not know this while the 
first trial was taking place. Indeed, since the judge took 
the matter under advisement, the judge himself ap­
parently was not sure about the state o f the law. Thus, 
both before and during the entire first trial, the 
petitioner was in genuine fear that he would be 
deprived o f his liberty. One purpose o f the Double 
Jeopardy Clause is to prevent a person from having to 
undergo this same traumatic experience more than once 
from prosecutions arising out o f the same incident.10

Second, another policy objective o f the Double 
Jeopardy Clause is to prevent the prosecution from 
having a dress rehearsal o f the actual trial. Even i f  it is 
true that the first proceeding could not, as a matter o f 
law, have resulted in a valid conviction, the petitioner 
suffered the same disability; he had his trial strategy 
laid bare before the prosecution. Before the trial began, 
the petitioner objected that the information against him 
was defective, and that there was no proper basis for 
proceeding with the trial. By postponing a decision 
until after the trial was over but without pronouncing a 
verdict, the trial judge gave the prosecutor the oppor­
tunity to preview the evidence in the case, at no risk to

wGreen v. United States, 355 U.S. 184 (1957).

32



11

the prosecutor that the petitioner would be acquitted, 
but at a very high cost to the defendant.11

What took place here was more than just pre-trial 
discovery o f the defendant in a criminal case—a proce­
dure, not so incidentally, which to the extent enjoyed 
in this case, is foreign to our system. It was a full scale 
dress rehearsal, with the petitioner having his life and 
liberty put in jeopardy and experiencing the trauma o f 
being put to trial. It is such a procedure which the 
Double Jeopardy Clause o f the Fifth Amendment 
proscribes.12

11 The evidence at the two trials was so similar that the 
Assistant U.S. Attorney was able to use the transcript of the first 
trial as a script for questioning witnesses at the second trial.

“THE COURT: I imagine that if the information that is 
presented here—which I gather from the way the prosecutor 
followed the transcript was probably about the same as it was 
in the other trial-thus it came as no surprise to this 
defendant.

“By the way; is that true, Mr. Gray?
“MR. GRAY [Assistant U.S. Attorney]: I’m sorry, Your 

Honor. Were you discussing the transcripts from the first case?
“THE COURT: Yes. That is, did the evidence generally 

follow what was presented before?
“MR. GRAY: Yes.”
(2nd Tr. Trans, p. 89, App. p. 15).

12Compare Ashe v. Swenson, 397 U.S. 436, 447 (1970): “In 
this case the State in its brief has frankly conceded that 
following the petitioner’s acquittal, it treated the first trial as no 
more than a dry run for the second prosecution . . . But this is 
precisely what the constitutional guarantee forbids.'” (Emphasis 
added). Although petitioner does not suggest that here the 
prosecution intended to use the first trial as a dress rehearsal, the 
actual result was clearly the same.

33



12

D. Double Jeopardy Protection May Be Invoked 
When the First Trial Did Not Result In a 
Conviction and a Reversal Thereof

It is generally accepted that if  the first trial results in 
a conviction, which is then set aside either by the trial 
judge or by an appellate court, the Double Jeopardy 
Clause does not preclude a retrial. This principle is 
reflected in a line o f cases beginning at least as early as 
United States v. Ball, 163 U.S. 662 (1896) and 
reaffirmed as recently as United States v. Wilson, 420 
U.S. 332 (1975).13 The very reasons for permitting 
reprosecution even though the conviction is infected 
with error suggest why a second trial should not be 
permitted when there is no conviction in the first trial.

First, the Double Jeopardy Clause is said to protect 
the defendant’s “ valued right to have his trial com­
pleted by a particular tribunal.” 14 Obviously, in the

13Other cases so holding include United States v. Tateo, 377 
U.S. 463 (1964); Forman v. United States, 361 U.S. 416 (1960); 
Bryan v. United States, 338 U.S. 552 (1950); and Stroud v. 
United States, 251 U.S. 15 (1919).

On the other hand, it is clear that if the defendant is 
convicted of a lesser included offense but is acquitted of the 
more serious offense, he may not be retried for the latter offense 
even if the conviction is set aside on appeal. Green v. United 
States, 355 U.S. 184 (1957); Benton v. Maryland, 395 U.S. 784 
(1969).

l*Wade v. Hunter, 336 U.S. 684, 689 (1949), quoted in 
United States v. Jorn, 400 U.S. 470, 484 (1971).

It is interesting to note that “jeopardy” is derived from the 
Old French jeu parti, literally meaning “divided game.” Merriam- 
Webster’s Seventh New Collegiate Dictionary, p. 455. This carries 
the suggestion that in both the game and the trial, there must be 
a decision or verdict. Each participant is entitled to continue 
until he wins or loses. In court, as in sport, it is inappropriate for 
one side to stop when he thinks he may be behind, only to start 
again before a different referee.



13

case o f a conviction, this right is preserved to the 
defendant, albeit unsuccessfully from his point o f view. 
He was given the opportunity to be acquitted. However, 
in the case at bar, by terminating the trial after all the 
evidence was introduced, but before the verdict was 
announced, the petitioner was deprived o f this valued 
right.

Second, this Court has held in Green v. United 
States, 355 U.S. 184, 189 (1957) that the defendant’s 
taking an appeal after a conviction operates as a waiver 
o f the Double Jeopardy Clause, since he is interested in 
having the first verdict set aside. However, in the case 
at bar, since there was no verdict from which to appeal, 
there is no implied waiver. Therefore, the petitioner is 
entitled to insist upon the protection afforded him by 
the Fifth Amendment.15

lsReliance on this “waiver” theory has recently been ques­
tioned.

This exception to the “one trial” rule has been explained 
on the conclusory theories that the defendant waives his 
double jeopardy claim by appealing his conviction, or that 
the jeopardy continues until he is acquitted or his 
conviction becomes final, see Green v. United States, 355 
U.S. 184, 189 (1957). As Mr. Justice Harlan noted in 
United States v. Tateo, 377 U.S. 463, 465-466 (1964), 
however, the practical justification for the exception is 
simply that it is fairer to both the defendant and the 
Government. United States v. Wilson, 420 U.S. 332, 
343-44, n. 11 (1975).
This “fairness” concept—which is similar to the Perez standard 

of “manifest necessity” and the “ends of public justice”—will be 
discussed in the next section of this brief. See text with fn. 18, 
infra.

35



14

In its opinion, the Seventh Circuit analogized the 
case at bar to Ball. The court stated that “ [h ]ad Lee’s 
motion to dismiss been denied and had he been found 
guilty, his appeal would likely have resulted in a 
reversal and a remand for retrial. Under United States v. 
Ball, supra, a new trial would not constitute double 
jeopardy.” 16 The analogy the court draws has surface 
plausibility. But the fact remains that petitioner was 
not convicted, and no amount o f analogizing can add 
this element. Therefore, if  the Double Jeopardy Clause 
is held not to protect petitioner, it must be because o f 
some “ manifest necessity”  respecting the dismissal o f 
the case immediately prior to the time for the verdict- 
a question to which we now turn.

E. A Second Trial is Not Allowed, Since the 
Timing of the Dismissal Was Not Dictated By 
“Manifest Necessity” Or the “Ends of Public 
Justice”

The most elusive category o f cases-in which this 
Court has allowed a second trial after the first trial was 
terminated by a dismissal or mistrial-is

premised on the “ public justice”  policy enunciated 
in United States v. Perez [9 Wheat. 579 
( 1 8 2 4 ) ] . . . .  A  trial judge properly exercises his 
discretion to declare a mistrial i f  an impartial 
verdict cannot be reached, or if a verdict o f 
conviction could be reached but would have to be 
reversed on appeal due to an obvious procedural 
error in the trial.17 * 11

16539 F.2d at 614 (App. p. 20).

11 Illinois v. Somerville, 410 U.S. 458, 464 (1973).

36



15

This is a refinement o f the Perez standard, which held 
that “ the law has invested courts o f justice with the 
authority to discharge a jury from giving any verdict, 
whenever, in their opinion, taking all the circumstances 
into consideration, there is a manifest necessity for the 
act, or the ends o f public justice would otherwise be 
defeated.” 18 But this Court has also made clear that 
this right to conduct a second trial is a very limited 
one.19

This Court has observed that the cases permitting or 
prohibiting a retrial subsequent to the termination o f 
the first trial “ escape meaningful categorization.” 20 
However, an examination o f the “ particular facts” 21 o f 
those cases may prove helpful. Let us first examine 
some cases in which a second trial was permitted.

In the most recent decision—United States v. Dinitz, 
424 U.S. 600 (1976)—a retrial subsequent to the 
mistrial was approved because o f the refusal o f the 
defendant to proceed with the trial with his alternate 
attorney following contemptuous behavior on the part 
o f his principal attorney. In Gori v. United States, 367 
U.S. 364 (1961), the mistrial was ordered to protect 
the defendant when the trial court feared that the 
prosecutor’s line o f inquiry would improperly inform 
the jury o f prior crimes committed by the defendant.

189 Wheat, at 580.

19“The policy of avoiding multiple trials has been regarded as 
so important that exceptions to the principle have been only 
grudgingly allowed.” United States v. Wilson, 420 U.S. 332, 343 
(1975).

20Illinois v. Somerville, 410 U.S. 458, 464 (1973).
2lId.

37



16

In Lovato v. New M exico, 242 U.S. 199 (1916), the 
trial court dismissed the already impanelled jury be­
cause the defendant's demurrer to the indictment was 
technically insufficient. In Keerl v. Montana, 213 U.S. 
135 (1909), the Court followed an established line o f 
cases22 allowing retrial i f  the mistrial was the result o f 
the inability o f the jury to agree on a verdict.

Finally, Illinois v. Somerville, 410 U.S. 458 (1973), is 
instructive because its facts appear, on the surface, to 
be quite similar to the facts in the case at bar, and 
therefore it was the principal decision relied on by the 
Seventh Circuit in affirming petitioner’s conviction. The 
defendant in Somerville had been indicted by an Illinois 
grand jury for the crime o f theft; however, the 
indictment failed to allege that the defendant intended 
permanently to deprive the owner o f his property. As a 
matter o f state law, such an indictment was fatally 
defective, and this fault could be raised on appeal or 
even by collateral attack. Therefore, after a jury had 
been impanelled, the trial court declared a mistrial. 
Even though the case had reached the stage at which 
jeopardy had attached, this Court held that the Double 
Jeopardy Clause did not preclude a second trial, in view 
o f the “ manifest necessity”  doctrine enunciated in 
Perez.

There are critical differences between Somerville and 
the case at bar. In Somerville, no evidence was 
introduced before the mistrial was declared. Here, the 
entire case was tried before the judge dismissed the 
action. In Somerville, the dismissal was ordered immedi­
ately after the court’s attention was called to the

22Moss v. Glenn, 189 U.S. 506 (1903); Dreyer v. Illinois, 187 
U.S. 71 (1902); Logan v. United States, 144 U.S. 263 (1892); 
United States v. Perez, 9 Wheat. 579 (1824).

38



17

defect. Here, the case proceeded, while the trial court 
took the petitioner’s motion under advisement.23 In 
Somerville, it was the declaration o f the mistrial that 
was objected to by the defendant, while here, the 
petitioner objected to proceeding with the trial.

The Court’s decisions refusing to permit a second 
trial after the dismissal or the declaration o f a mistrial 
also reflect the basic policies o f the Double Jeopardy 
Clause. In Downum v. United States, 372 U.S. 734 
(1963), after a jury was impanelled (and therefore after 
jeopardy had attached), the prosecution discovered that 
a key witness for two o f the six counts was absent. 
Although the defendant expressed a desire to proceed 
immediately on the other four counts, the judge 
dismissed the jury. A  new jury was impanelled two days 
later. This Court held that the delay operated as a 
continuance solely for the benefit o f the prosecution 
and held the second trial barred.24 In United States v. 
Jorn, 400 U.S. 470 (1971), the jury was dismissed and 
a mistrial ordered because the trial judge felt that the 
prosecution witnesses had not been adequately advised 
of their rights against self-incrimination. This Court 
barred the second trial because this procedure deprived

23As suggested elsewhere, see text with fns. 14 and 27, in the 
case at bar, since testimony was taken, the petitioner was 
entitled to proceed up through a verdict, on which he might have 
been acquitted.

24In Downum, the trial court’s ruling interfered with the 
defendant’s choice—to proceed with the trial. In the case at bar, 
the trial court’s denial of petitioner’s objection to the informa­
tion also interfered with his choice—in this case, not to proceed 
with the trial. The effect of both rulings is an interference with 
constitutionally protected rights.

39



18

the defendant o f the right to proceed before a tribunal 
that might have been favorable to him.

A  recent decision invoking the protection o f the 
Double Jeopardy Clause is United States v. Jenkins, 420 
U.S. 358 (1975). Following a bench trial, the trial court 
dismissed the indictment and discharged the defen­
dant.25 This Court held that an appeal by the Govern­
ment was foreclosed26 because it was unclear whether 
the adjudication was on the factual merits or the result 
o f the district court’s view o f the prevailing legal 
standard. “ The trial, which could have resulted in a 
judgment o f conviction, has long since terminated in 
respondent’s [defendant’s] favor. To subject him to any 
further such proceedings at this stage would violate the 
Double Jeopardy Clause.” 27 4 20 U.S. at 370.

25ln Jenkins, this Court emphasized that there is an important 
distinction between an action terminated by mistrial and one 
terminated by dismissal: “ [W]e think it is of critical importance 
whether the proceedings in the trial court terminate in a mistrial 
as they did in the Somerville line of cases, or in the defendant’s 
favor, as they did here.” 420 U.S. at 365, n. 7. It bears emphasis 
that the case at bar was dismissed, and not terminated by 
mistrial: . . .  “I must dismiss this case because the Information 
was improperly drawn. . . .  I have to dismiss.” (1st Tr. Trans, p. 
67, App. p. 13) (Emphasis added).

26The standard under the statute giving the Government the 
right to appeal—Title 18, U.S.C. Sec. 3731—is the same as that of 
the Double Jeopardy Clause. See, e.g., United States v. Jenkins, 
420 U.S. 358, 364, 366.

27It is true that the district court judge stated that he believed 
that the petitioner’s guilt had been proven beyond a reasonable 
doubt. But, since this statement was immediately followed by 
the dismissal of the action, this “verdict” can be viewed as 
completely gratuitous. It is arguable that the trial judge might 
have reflected considerably longer before pronouncing a verdict, 
and that the verdict might have been different, had the judge 
known that the petitioner would have been imprisoned instead of 
discharged.



19

This Court has pointed to various factors to deter­
mine whether the dismissal or declaration o f a mistrial 
precludes a second trial. One factor is whether the 
mistrial comes at the defendant’s request.28 In the case 
at bar, the motivating force is difficult to pinpoint. It is 
true that it was the petitioner who, prior to the trial, 
called the court’s attention to the defective information 
and moved to have the action dismissed immediately.
On the other hand, the underlying defect was entirely 
the result o f the Government’s oversight,29 and the 
timing o f the dismissal was solely the result o f the trial 
court’s earlier inaction.

Even if  the dismissal is deemed to be at the 
petitioner’s election, there are other factors to consider. 
One method o f determining the “ manifest necessity”  o f 
the trial judge’s declaration o f a mistrial at a particular 
stage is suggested by Mr. Justice Marshall’s dissenting 
opinion in Somerville-consider the alternatives available 
to the trial judge.30 In Somerville, this Court held that

28“The distinction between mistrials declared by the court sua 
sponte and mistrials granted at the defendant’s request or with 
his consent is wholly consistent with the protections of the 
Double Jeopardy Clause.” United States v. Dinitz, 424 U.S. 600,
608 (1976).

In United States v. Jorn, 400 U.S. 470 (1971), the Court held 
that a retrial was precluded even though the declaration of the 
mistrial was not requested by the defendant; the trial court 
ordered it sua sponte. The foreclosure of a second trial is 
therefore even more appropriate here, where the petitioner’s 
motion called the trial court’s attention to the defect and the 
court nonetheless proceeded with the trial.

29See fn. 33, infra.

30“The first element to be considered is the necessity for 
declaring a mistrial. That I take to mean consideration of the 
alternatives available to the judge confronted with a situation in 
the midst of trial that seems to require correction.” 410 U.S. at 4 1 
478.

(continued)



20

it would be wasteful i f  public policy were to require 
that the first trial continue with full knowledge that it 
was a charade, that the conviction—if it were ob­
tained—would have to be reversed on appeal, and that a 
second trial would have to be held.31 In that case, the 
option o f a continuance was not available; it would 
have been highly impractical for the trial judge to keep 
together the jury, which had already been impanelled, 
while the prosecution went before the grand jury to 
obtain a new indictment.

In the case at bar, however, such practical problems 
were not present. The trial judge did not rule on 
defendant’s motion before the trial started because, he 
claimed, it was only presented on the morning o f trial

(footnote continued from preceding page)
Since Somerville, a majority of this Court has also adopted as 

a standard for evaluating the propriety of a mistrial the question 
of whether the trial court properly weighed the alternatives 
available to him. In United States v. Dinitz, 424 U.S. 600, 604 
(1976), the trial court offered the defendant three alternative 
courses; one such course, the declaration of an immediate 
mistrial, was the option chosen by the defendant. The Court 
emphasized that the “important consideration, for purposes of 
the Double Jeopardy Clause, is that the defendant retain primary 
control over the course to be followed in the event of such 
error.” 424 U.S. at 609. By taking petitioner’s motion under 
advisement, rather than ruling on it immediately or granting a 
continuance, the District Court here deprived the petitioner of 
that control.

31 The Court’s opinion states: “If a mistrial were constitu­
tionally unavailable in situations such as this, the State’s policy 
could only be implemented by conducting a second trial after 
verdict and reversal on appeal, thus wasting time, energy, and 
money for all concerned.” 410 U.S. at 469. In the case at bar, 
the trial judge did the exact opposite. He wasted the time, 
money and energy of both sides by continuing the obviously 

4 2  fruitless trial.



21

and he would have to do some research.32 Therefore, 
the judge allowed the trial to proceed, and then, once 
the trial was over, without any further argument by 
counsel, he dismissed the action.

It is difficult to understand why the trial judge found 
it necessary to take the petitioner’s motion under 
advisement. When the testimony had concluded, the 
trial judge thought it perfectly clear that the informa­
tion was defective.33 I f  it was so obvious at 11:30 a.m., 
it is impossible to say that the alternative that the judge 
chose at 9:45 a .m .-o f taking the motion under advise­
ment and hearing the entire case-was the only sound 
alternative available to him.

Since the action was being tried without a jury, there 
was no reason whatsoever why the trial court could not 
instead have ordered a continuance, prior to starting the

32“lt is difficult to deal with a motion to dismiss if you raise 
any technical questions, and you don t give me the opportunity 
in advance of trial to research them ” (1st Tr. Tran. p. 3. See 
App. p. 8).

33“ I must dismiss this case because the Information was 
improperly drawn. Whoever drew it up didn’t even look at the 
Indiana statute. . . .

“The briefest examination o f the statute establishes that 
knowingly is an [element of the] offense. . . .  No such allegation 
is contained, no matter how 1 stretch my imagination when I 
read the Information. . . .

“Mr. Gray [the Assistant U.S. Attorney], 1 am not condemn­
ing you, I don’t know who drafted it, but I can tell you if a law 
clerk of mine out of law school drafted something like that, I 
would send him back for a refresher course. You may carry that 
complete message back to your department. (1st Tr. Trans, pp. 
67-68, App. p. 13-14) (Emphasis added).

43



22

trial, to do that research.34 Once that research disclosed 
that the information was defective, the prosecution 
would then have had the opportunity to redraft it. 
Here, there simply was no “ manifest necessity”  for 
proceeding in a fashion that was calculated seriously to 
interfere with the petitioner’s constitutional rights.35

The “ manifest necessity”  doctrine means more than 
that a trial court may terminate a proceeding infected 
with error. The implication o f Somerville is that in 
certain cases the trial court may have a duty to declare 
a mistrial at a particular stage. Failure to dismiss the 
case at that time—when “ manifest necessity”  would so 
require—will mean that a later dismissal will preclude a 
retrial.36

34In v*ew of the failure of the trial court to order a 
continuance sua sponte, it would have been appropriate for the 
prosecution to request the continuance, rather than sit back 
passively while the petitioner unsuccessfully asserted his rights. 
The U.S. Attorney may not have been personally responsible for 
drafting the defective information (see fn. 33). However, once 
the defendant called attention to the obvious defect, the U.S. 
Attorney was grossly negligent in not noting the defect and 
either moving for a continuance or joining in defendant’s motion 
for an immediate dismissal. Such a course—which places only a 
small burden on the prosecution—would have prevented the 
constitutionally defective procedure eventually followed.

3sPetitioner concedes that a very different case would be 
presented if a defendant had moved to dismiss the information 
only during or after the trial, and the motion were immediately 
granted. Such a defendant would be said to have waived the 
prejudicial effect o f the introduction of any evidence up to that 
point by the untimeliness of the motion. However, the petitioner 
challenged the information at an early stage; it was prejudicial 
error for the trial court not to rule on the motion immediately, 
or at least grant a continuance to research the law.

36It is hard to say that once the testimony is concluded, “the 
44 declaration of a mistrial [and, a fortiori, a dismissal—see fn. 25, 

supra] was dictated by ‘manifest necessity’ or the ‘ends of public 
justice.’ ” Illinois v. Somerville, supra at 463.



23

The Court below made much o f the fact that the 
petitioner did not insist upon not proceeding with the 
first trial.37 In fact, the defendant objected to the 
sufficiency o f the information minutes before the court 
began to hear the evidence, and the court obviously had 
refused to rule upon the motion at that time. It would 
be elevating form over substance to require the defen­
dant adamantly to insist that the trial be delayed until 
the judge ruled on the motion-in the face o f the 
court’s clear ruling—before the defendant would be 
entitled to rely on an essential constitutional right. 
Especially in a bench trial, counsel should not be 
required to press an objection and thereby risk provok­
ing the ire o f the trial judge.

In addition to the protection he is afforded by the 
appointment o f counsel, the court and the prosecution 
also have a duty to protect the rights o f defendants.38 
The court should, on its own initiative, have ordered a 
brief continuance so that it could research the law.

There is a third consideration determinative o f the 
right to conduct a second trial subsequent to a dismissal 
or mistrial—whether the action was dismissed immedi­
ately upon the recognition o f the facts necessitating

37“Significantly, the defendant knowing that the court had 
taken his motion to dismiss under advisement did not object to 
going forward with the trial.” 539 F.2d at 614 (App. p. 20).

38“ [T] hough the attorney for the sovereign must prosecute 
the accused with earnestness and vigor, he must always be 
faithful to his client’s overriding interest ‘that justice be done.’ ”
United States v. Agurs, ____ . U.S. ____ , 96 S. Ct. 2392, 2401
(1976).

“The duty of the prosecutor is to seek justice, not merely to 
convict.” Sec. 1.1(c), Standards Relating to the Prosecution 
Function, American Bar Association Project on Standards for 
Criminal Justice.

45



24

that mistrial, or whether the trial continued nonethe­
less:

But it is evident that when judicial or prosecutorial 
error seriously prejudices a defendant, he may have 
little interest in completing the trial and obtaining 
a verdict from the first jury. The defendant may 
reasonably conclude that a continuation o f the 
tainted proceeding would result in a conviction 
followed by a lengthy appeal and, if  a reversal is 
secured, by a second prosecution. In such circum­
stances, a defendant’s mistrial request has objec­
tives not unlike the interests served by the Double 
Jeopardy Clause—the avoidance o f the anxiety, 
expense, and delay occasioned by multiple prose­
cutions. . . .  In the event o f severely prejudicial 
error a defendant might well consider an immedi­
ate new trial a preferable alternative to the 
prospect o f a probable conviction followed by an 
appeal, a reversal o f the conviction, and a later 
retrial.39

In such cases as Somerville and Gori, the mistrial was 
ordered as soon as the defect was pointed out or 
became apparent to the trial court. Here, however, 
instead o f granting him the immediate termination that 
he had requested, the court proceeded with the case, 
heard all the evidence, and only then dismissed the 
action. It is improper to make a defendant sit through a 
trial, over his objections to a defective information, 
knowing that he will have to do it all over again.40 As

39United States v. Dinitz, 424 U.S. 600, 608, 610 (1976) 
(Emphasis added).

40Of course, if he is unaware of the defect, then he is put in 
fear twice—something the Double Jeopardy Clause also pro­
scribes.

46



25

this Court stated in Dinitz, such a procedure is 
inconsistent with the protection the Double Jeopardy 
Clause affords a defendant.

II.

THE DUE PROCESS CLAUSE OF THE 
FIFTH AMENDMENT BARS PETITIONER’S 
RETRIAL

The Due Process Clause o f the Fifth Amendment 
requires that the United States adhere to certain 
procedural standards before depriving a person o f life, 
liberty or property. The general limits o f  this require­
ment have been defined many times by this Court. One 
often-quoted statement is that

[rjegard for the requirements o f the Due Process 
Clause “ inescapably imposes upon this Court an 
exercise o f judgment upon the whole course o f the 
proceedings [resulting in a conviction] in order to 
ascertain whether they offend those canons o f  
decency and fairness which express the notions o f 
justice o f English-speaking people even toward 
those charged with the most heinous offenses.”  
Rochin v. California, 342 U.S. 165, 169 (1952) 
(Emphasis added).

That the content o f the Double Jeopardy Clause may 
be different from that o f the Due Process Clause is 
clear. The extent o f that difference is not nearly so 
clear.

Prior to 1969, this Court had held that the Double 
Jeopardy Clause did not apply to the states through the 
Due Process Clause o f the Fourteenth Amendment

47



26

under the “ incorporation principle.” 41 Thus, in Brock v. 
North Carolina, 344 U.S. 424 (1953), the question o f 
whether a state could retry a defendant whose trial was 
terminated by mistrial was limited to the protection 
afforded by the Fourteenth Amendment. In approving 
the second trial, this Court stated:

Justice to either or both parties may indicate to 
the wise discretion o f the trial judge that he 
declare a mistrial and require the defendant to 
stand trial before another jury. As in all cases 
involving what is or is not due process, so in this 
case, no hard and fast rule can be laid down. The 
pattern o f due process is picked out in the facts 
and circumstances o f each case. 344 U.S. at 
427-28.

An indication o f a situation in which the second trial 
would be barred by the Due Process Clause is found in 
Mr. Justice Frankfurter’s concurring opinion in Brock :

A  State falls short o f its obligation when it . . . pre­
vents a trial from proceeding to a termination in 
favor o f the accused merely in order to allow a 
prosecutor who has been incompetent or casual or 
even ineffective to see if  he, cannot do better a 
second time. 344 U.S. at 429.

In Benton v. Maryland, 395 U.S. 784 (1969), this 
Court overruled Palko and held that the Due Process 
Clause o f the Fourteenth Amendment incorporated the 
Double Jeopardy Clause, and that the latter Clause 
applied to the states as well as to the federal govern­
ment. This decision would suggest that in the area o f 
repetitive trials, the limits o f these two protections are 
congruent. However, in a decision announced on the

41 Palko v. Connecticut, 302 U.S. 319 (1937); Twining v. New 
Jersey, 211 U.S. 78 (1908).

48



27

same day as Benton, this Court considered a defen­
dant’s challenge to a longer sentence imposed on him 
after a second trial, than had been given him after his 
successfully-appealed first trial. North Carolina v. 
Pearce, 395 U.S. 711 (1969) held that this practice was 
not defective under the Double Jeopardy Clause (al­
though that now applied to the states under the 
Fourteenth Amendment), but that it might nonetheless 
be inconsistent with the Due Process Clause. This Court 
remanded the decision, requiring that the second trial 
court at least articulate reasonable grounds for the 
longer sentence. Thus, it is suggested that, where 
fairness to the defendant is implicated by repetitive 
trials, the limits o f the Due Process Clause are some­
what broader than those o f the Double Jeopardy 
Clause.

The errors in the first trial discussed in the first 
portion o f this brief—the gross defect in the informa­
tion; the trial court’s inability to recognize this defect 
when the petitioner’s motion first brought it to his 
attention; the trial court’s failure to order a continu­
ance to research the sufficiency o f the information; the 
prosecutor’s failure to take any action when the 
petitioner moved to dismiss the information;42 the 
admission o f all the evidence at the first trial, and then 
the dismissal o f the action without any verdict—are 
sufficiently egregious that the allowance o f a second 
trial against petitioner does indeed “ offend . . . canons 
of decency and fairness,”  and so violated petitioner’s 
rights under the Due Process Clause.

42Compare 'Brady v. Maryland, 373 U.S. 83, 86-88 (1963).

49



28

CONCLUSION

Petitioner was put in jeopardy o f life or limb when 
he was tried pursuant to the defective information. The 
dismissal o f the action by the trial judge, after all the 
evidence had been introduced but without entry o f 
judgment, terminated this action. The Double Jeopardy 
Clause and the Due Process Clause o f the Fifth 
Amendment bar petitioner’s retrial. The judgment o f 
the court below should be reversed and all charges 
against the petitioner arising from this action should be 
dismissed.

Respectfully submitted,

/s/Conrad Kellenberg 
CONRAD KELLENBERG

Court-Appointed Counsel 
fo r  Petitioner

50



No. 76-5187

t o  ^ u p i t t t  Ofmtrt « f  t o  W n W  $ i t o s
October T erm, 1976

P h iijjp  Jerome L ee, petitioner

v.
U nited States of A merica

OX W R IT  OF CERTIORARI TO THE UNITED STATES COURT OF 
APPEALS FOR THE SEVENTH C IRCUIT

BRIEF FOR THE UNITED STATES

WADE H. McCE.EE, JR.,
Solicitor General, 

BENJAMIN R. CIVILETTI,
Assistant Attorney General, 

ANDREW L. FREY,
Deputy Solicitor General, 

FRANK H. EASTERBROOK,
Assistant to the Solicitor General, 

JEROME M. EEIT,
W ILL IAM  G. OTIS,

Attorneys,
Department of Justice, 

Washington, D.C. 205S0.

51





I N D E X
Page

Opinion below_____________________________________________ 1
Jurisdiction ______________________________________________  1
Question presented---------------------------------------------------  1
Constitutional provision involved--------------------------------  2
Statement ________________________________________________  2
Summary of argument____________________________________ 5
Argument:

Petitioner’s second trial did not violate the Double 
Jeopardy Clause____________________________________ 9

A . Introduction___________________ ______________  9
B. Petitioner’s motion to dismiss the information

removed any bar to a second trial__________ 14
1. In  the absence of judicial or prosecutorial

overreaching, a motion for a mistrial re­
moves any double jeopardy objection to 
a second trial---------------------------------- 14

2. The same principles that apply to requests
by the accused for mistrials also permit 
retrials after the accused has requested 
any other form o f mid-trial termination. 17

a. Function, not form, determines
whether a second trial is per­
mitted ----------------------------------  17

b. The interests o f the accused in
avoiding a second trial are the 
same whether the first trial ends 
in a mistrial or in an order dis­
missing the information---------  18

c. A  rule that distinguished among
the reasons for the mid-trial ter­
mination would be inconsistent 
with the rule allowing a second 
trial after a verdict o f guilty has 
been set aside----------------------------  20

u)

53



II

Argument— Continued
Petitioner’s second, etc— Continued

B. Petitioner’s motion, etc— Continued
2. The same principles, etc— Continued

d. A  defendant may safeguard his 
legitimate interests by going to 
verdict and saving his objections 
for post-verdict resolution---------  24

C. I t  is not dispositive that the district court heard
evidence at the first trial before dismiss­
ing the information------------------------------ 27

Conclusion _______________________________________________  37

CITATIONS

Cases:
Allee v. Medrano, 416 U.S. 802-------------------------------  36
Ashe v. Swenson, 397 U.S. 436________________________  15
Breed v. Jones, 421 U.S. 519---------------------------------10,18
Brock v. North Carolina, 344 U.S. 424-------------------- 10
Bryan v. United States, 338 U.S. 552----------------------  13
Conner v. Deramus, 374 F. Supp. 504----------------   16
Davis v. United States, 411 U.S. 233----------------------  33
Downum v. United States, 372 U.S. 734_______________ 29, 30
Estelle v. Williams, 425 U.S. 501----------------------------  33
Fong Foo v. United States, 369 U.S. 141----------------- 11
Forman v. United States, 361 U.S. 416_____________ 11,12-13
Francis v. Henderson, 425 U.S. 536------------------------ 32
Galloway v. Beto, 421 F. 2d 284, certiorari denied, 400

U.S. 912_____________________________________________  16
Gori v. United States, 367 U.S. 364____________________ 10
Green v. United States, 355 U.S. 184_________________  10
Greene v. Massey, 546 F. 2d 51______________________  13
Himmelfarh v. United States, 175 F. 2d 924, certiorari

denied, 338 U.S. 860---------------------------------------- 16
Illinois v. Somerville, 410 U.S. 458________________ 11, 29, 30
Kepner v. United States, 195 U.S. 100_______________  11
Linnemeier v. State, 330 N.E. 2d 373__________________ 21
Ludwig v. Massachhisetts, 427 U.S. 618_______________  35
Martin v. State, 300 N.E. 2d 128______________________  21

54



Ill

Cases— Continued
Monroe v. State, 339 N.E. 2d 102----------------------------
Montgomery Ward & Co. v. Duncan, 311 U.S. 243-----
North Carolina v. Pearce, 395 U.S. 711-------------------  9
Roberts v. United States, 477 F . 2d 544------------------

v. United States, 202 F. 2d 354, certiorari denied,
344 U.S. -------------------------------------------------------  ,

Serfass v. United States, 420 U.S. 377----------- 10,18,30,31
Singer v. United States, 380 U.S. 24------------------------
United States v. 163 U.S. 662-------------------------
United States v. Burroughs, 537 F. 2d 1156--------- 2o
United States v. C ravero, 530 F. 2d 666--------------  25
United States v. Debrow, 346 U.S. 374--------------- 21
United States v. DeGraces, 518 F. 2d 1156----------------   ̂ 25
United States v. Dinitz, 424 U.S. 600----------- 7,13,14,15,19
United States v. DiSilvio, 520 F. 2d 247, certiorari de­

nied, 423 U.S. 115--------------------------------------------
United States v. Donahue, 539 F. 2d 1131------------—  25
United States v. Finch, C.A. 9, No. 75-2149, decided

December 22, 1976-------------------------------------  25
United States v. Gentile, 525 F. 2d 252, certiorari de­

nied, 425 U.S. 903--------------------------------------- 29
United States v. Goldstein, 479 F. 2d 1061--------- -—  16
United States v. Grasso, C.A. 2, No. 76-1284, decided

March 9,1977___________________________________  16
United States v. Howard, 432 F. 2d 1188-----------  13
United States v. Jenkins, 420 U.S. 358----------------  11,15,26
United States v. / « ,  400 U.S. 470-------------------  10,12,14
United States v. AeAoe, 516 F. 2d 78, certiorari de­

nied, 424 U.S. 909---------------------------------------  22
United States v. Lucido, 517 F. 2d 1-----------------  23
United States v. Means, 513 F. 2d 1329--------------- 23
United States v. Pappas, 445 F. 2d 1194-------------  16
United States v. Perez, 9 Wheat. 579-----------------  13
United States v. Robbins, 510 F. 2d 301, certiorari de­

nied, 423 U.S. 1048  23
United States v. Sanabria, 548 F. 2d 1, petition for a

writ o f certiorari pending, No. 76-1040---------------  22, 27
United States v. Scott, 544 F. 2d 903-----------------  23
United States v. Sedgwick, 345 A . 2d 465, certiorari_de­

nied, 425 U.S. 966  23

55



IV

Cases— Continued
United States v. Sharpnaclc, 355 U.S. 286----------------- 21
United States v. Sisson, 399 U.S. 267------------- 16-17,18,30
United States v. Tateo, 377 U.S. 463-----------------  12,17,23
United States v. W iley, 517 F. 2d 1212--------------------  13
United States v. Wilson, 420 U.S. 332---------------------  11,18
Wade v. Hunter, 336 U.S. 684-------------------  9,11,13,31,36

Constitution and statutes:
United States Constitution, F ifth  Amendment----------------- 2

Double Jeopardy Clause__________________________passim
Due Process Clause---------------------------------------passim

Assimilative Crimes Act, 18 U.S.C. 13-------------------  2
28 U.S.C. 2106________________________________________  13
Indiana Code 35-17-5-3, Burns Ind. Stat. Am. 10-

3030 (1975)_________________________________________  21
Miscellaneous:

Federal Rules o f Criminal Procedure:
Rule 7 (e )________________________________________  34
Rule 34________________________________________ 7,16,25

Friedland, Double Jeopardy (1969)----------------------  20,26
Mayers and Yarbrough, Bis Vexari: New Trials and 

Successive Prosecutions, 75 Plarv. L . Rev. 1 (1960) _ 20
Rote, Government Appeals of “Dismissals”  in Crimi­

nal Cases, 87 Harv. L . Rev. 1822 (1974)____________ 20
Note, Twice in Jeopardy, 75 Yale L.J. 262 (1965)-----  20
Sigler, Double Jeopardy (1969)----------------------------  20

56



| i t  tk dfmtrt of ik I n M  J&tfes
October T erm, 1976

No. 76-5187

P h ill ip  Jerome L ee, petitioner

v.
U nited States op A merica

ON W R IT  OF CERTIORARI TO THE UNITED STATES COURT OF 
APPEALS FOR THE SEVENTH C IRCUIT

BRIEF FOR THE UNITED STATES

OPINION BELOW

The opinion of the court of appeals (A . 17-20) is 
reported at 539 F.2d 612.

j u r is d ic t io n

The judgment of the court of appeals was entered 
on July 21, 1976. The petition for a writ of certiorari 
was filed on August 9, 1976, and was granted on Jan­
uary 10, 1977. The jurisdiction of this Court rests 
upon 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether a defendant may be retried after the 
court, at the defendant’s request, dismissed the infor­
mation during trial on the ground that it was defec­
tive on its face.

(i)

57



2

CONSTITUTIONAL PKOVISION INVOLVED

The F ifth  Amendment to the United States Consti­
tution provides in relevant part:

* * * [N ]o r  shall any person be subject for 
the same offence to be twice put in jeopardy of 
life  or limb * * *.

STATEMENT

In  an information filed on February 6, 1974, peti­
tioner was charged with theft, in violation of the 
Assimilative Crimes Act (18 U.S.C. 13) and an Indi­
ana state statute (A . 4). On May 24, 1974, the district 
court appointed Donald Swanson as petitioner’s coun­
sel and set July 16, 1974 (approximately two months 
later) as the trial elate (A . 2 ).1 Petitioner waived his 
right to be tried by a jury (A . 3), and a bench trial 
commenced as previously scheduled (A . 7).

The prosecutor made his opening remarks outlin­
ing the government’s evidence (A . 7), and the district 
judge then invited defense counsel to make an open­
ing statement. Mr. Swanson orally moved to dismiss 
the information on the ground that it failed to allege 
that petitioner committed the theft knowingly and in­
tending permanently to deprive the victim of his 
property (A . 8-9). The district court remarked that 
counsel could have made this motion before the trial 
commenced, stating (A . 8) :

Well, I  will consider it, but you certainly were 
in the case before this morning. I t  is difficult to

1 Swanson replaced another attorney, who was permitted to
withdraw (A . 2).

58



3

deal with a motion to dismiss i f  you raise any 
technical questions, and you don’t give me the 
opportunity in advance of trial to research 
them. So I  will hear you, but you have that 
problem.

The court observed that because it had “no oppor­
tunity to study this at a ll” it would deny the motion 
“ at this time, but at my first opportunity I  will check 
[the state case cited in support of the motion] and 
give [it such] consideration as appears to be war­
ranted”  (A . 9).

The court asked defense counsel whether he had 
“ anything further by way of opening statement”  
(A . 9). Mr. Swanson made a brief opening state­
ment. He did not object to proceeding with the trial 
(ibid,).

The prosecution then presented its case. Petitioner 
stipulated that the theft occurred, i f  at all, in the 
United States Post Office in Fort Wayne, Indiana, 
which was under the exclusive jurisdiction of the fed­
eral government (A . 10). The prosecution presented 
the testimony of two witnesses: Vance Travis, a secu­
rity guard at the Post Office, and Charles Bilskie, the 
victim of the crime. Their testimony (T r. 17-62) 
showed that Bilskie, who was 63 years old and blind, 
operated a news stand and candy concession in the 
Post Office lobby. On December 21, 1973, after B il­
skie had placed his two wallets on a counter behind 
his stand, Travis saw petitioner go behind the counter 
and take the wallets. Travis shouted at petitioner, 
who tried to escape but was apprehended.

59



4

A fter a short recess petitioner moved for a judg­
ment o f acquittal, arguing that the prosecution had 
failed to prove criminal intent or that petitioner had 
possession of the wallets (A . 11-12). The court de­
nied this motion on the understanding that its deci­
sion did not apply to petitioner’s earlier motion con­
cerning the adequacy of the charge, upon which the 
court had reserved decision (ibid.).

Petitioner rested without presenting any evidence 
(A . 13). The court then returned to the defense mo­
tions. As to the sufficiency of the evidence, the court 
told Mr. Swanson (ibid.) : “ Your motion addressed 
to the Government’s proof borders on being frivolous. 
Your client has been proven beyond any reasonable 
doubt in the world, there is no question about his 
guilt; none whatsoever.”

The court did not, however, render a formal ver­
dict o f guilty. I t  instead took up the motion to dis­
miss the information for failure to state all of the 
elements o f the offense. The court granted this mo­
tion, holding that the information was improperly 
drawn because it did not charge that petitioner took 
the wallets knowingly and with the intent perma­
nently to deprive the owner of his property (A . 13- 
14).

On September 25, 1974, petitioner was indicted for 
the theft of the wallets. The indictment alleged that 
petitioner committed the theft knowingly, with the 
intent to deprive Bilskie of his property. A t a bench 
trial on June 23, 1975, the prosecution introduced the 
same evidence that had been produced in the first

60



5

trial. The defense again presented no evidence. The 
court rendered a verdict of guilty (Tr. 89-90).

The court of appeals rejected petitioner’s argu­
ment that the second trial was barred by the Double 
Jeopardy Clause (A . 17-20). A fter concluding that 
the Clause should not be applied in a mechanical 
fashion (A . 19), the court went on (A . 20) :

In  the case at bar, the motion of dismissal 
was made by the defendant on the day of trial. 
The dismissal was granted after the evidence 
was heard, but before any finding was made of 
guilt or innocence. I t  was not based on evi­
dence adduced at trial, but rather on the fa il­
ure of the information to state an essential ele­
ment o f the offense—in short, because of a 
jurisdictional defect. Significantly, the defend­
ant knowing that the court had taken his mo­
tion to dismiss under advisement did not ob­
ject to going forward with the trial. Under 
these circumstances, we conclude that the dou­
ble jeopardy clause did not bar his retrial.

SUMMARY OF ARGUMENT

1. The Double Jeopardy Clause does not require so­
ciety to marshal its resources to guarantee every de­
fendant a single error-free proceeding, on pain of in­
ability, when error arises, to complete the prosecution 
of those accused of crime. I t  is settled, for instance, 
that when an accused has had an opportunity to re­
ceive a verdict, has been convicted, and the convic­
tion has been reversed on appeal because of error in 
the indictment, a second trial does not violate the

61



6

Double Jeopardy Clause. Also, when during the course 
of a trial an accused willingly surrenders his right to 
receive the verdict of the factfinder by asking for a 
mistrial, this election removes any barrier to a second 
trial. And even when an ongoing trial is terminated 
over the defendant’s objection, a new trial still may 
be held i f  there was manifest necessity to override 
the defendant’s preference for the first tribunal. Each 
of these strands of double jeopardy law supports the 
propriety of petitioner’s second trial.

The only factor that differentiates cases in which 
a conviction is reversed on appeal (and in which a 
second trial is indisputably allowed by double jeop­
ardy principles) from cases in which an ongoing trial 
is aborted is that a mid-trial termination may deprive 
the defendant of his valued right to receive the ver­
dict of the factfinder then sitting. A ll of the other 
considerations— the continuing state of anxiety, the 
expense of a second trial, and so on— are the same 
whether the second trial follows a reversal on appeal 
or a mid-trial termination. I t  follows logically that 
the rules governing retrial after a mid-trial termina­
tion should not differ from those allowing retrial 
after reversal of a conviction, except to the extent 
necessary to vindicate this single additional interest 
of protecting the defendant’s right to receive a ver­
dict at the first trial.

But when the defendant seeks the pre-verdict termi­
nation of his trial, the granting of his request does 
not “ deprive” him of the right to receive the fact­

62



7

finder’s verdict; to the contrary, the mid-trial termi­
nation gives to the accused an outcome he apparently 
values more highly than receiving the factfinder’s ver­
dict. A fter all, a defendant who desires to receive the 
factfinder’s verdict could do so by submitting his case 
to the factfinder and preserving his legal issues for a 
ruling after trial.2 Accordingly, logic and policy dic­
tate that a request by the accused to terminate an 
ongoing trial should ordinarily remove any double 
jeopardy bar to a second prosecution. United States v. 

Dinits, 424 TJ.S. 600.
I t  would be strange i f  the only way for a trial judge 

to safeguard the public’s interest in fa ir trials de­
signed to end in just judgments were to deny seeming­
ly meritorious requests to terminate ongoing trials. 
Yet i f  the district court (erroneously) had denied 
petitioner’s motion to dismiss the information, the 
trial would have gone to verdict, the conviction would 
have been set aside (either by the district court or on 
appeal), and a second trial could have been held free 
of any serious contention that the Double Jeopardy 
Clause had been violated. W hy should petitioner ac­
quire immunity from prosecution because the district 
court, following a procedure that was agreeable to 
petitioner, correctly granted his motion, thereby spar­
ing him the trauma of a pronouncement of guilt and

2 In  the present case, for instance, petitioner could have asked 
that a verdict be returned and then moved for an arrest o f judg­
ment pursuant to Fed. R. Crim. P. 34. Such a procedure would 
have protected fu lly his right not to be convicted upon a defective 
information.

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8

the expense and delay that might have been necessary 
to have that verdict set aside?

2. Although petitioner agrees with much of this 
analysis (Br. 22 n. 35), he argues that this case should 
be assessed by different standards because the termi­
nation of the trial did not occur until after all the 
evidence was taken. But any hardship petitioner may 
have experienced during the taking of evidence in the 
first trial was caused, in substantial measure, by his 
counsel’s delay in making the motion to dismiss the 
information. Despite the fact that counsel had almost 
two months in which to prepare and file written mo­
tions before trial, counsel’s first objection to the suffi­
ciency of the information came in an oral motion 
made after trial had commenced and the prosecutor 
had made his opening statement. Although this mid- 
trial motion was made before the technical “ attach­
ment” of jeopardy, it came too late to allow either the 
judge or the prosecutor any opportunity to research 
before trial the state cases upon which petitioner 
relied.

The district court therefore acted reasonably in 
proceeding with the trial until a convenient recess 
provided time to inquire further. I f  petitioner were 
dissatisfied with the court’s decision to begin taking 
evidence before ruling on the motion to dismiss, he 
could have objected or asked for a continuance. He 
did neither, and his failure to do so must be taken as 
an acquiescence in the hearing o f evidence, at least 
until the first regular recess during the trial. Simi­
larly, when the judge was ready to rule on the motion

64



9

to dismiss, petitioner did not ask that the ruling be 
reserved until after verdict (doubtless because the 
judge had prefaced his ruling by stating (A . 13) that 
petitioner was guilty “ beyond any reasonable doubt 
in the world” )- Under the circumstances, any hard­
ship caused by the decision to hear evidence must be 
“ subordinated to the public’s interest in fa ir trials 
designed to end in just judgments.” Wade v. Hunter, 
336 U.S. 684, 689.

ARGUMENT

petitioner ’s second trial did not violate the  double

JEOPARDY CLAUSE 

A. INTRODUCTION

The Double Jeopardy Clause “ protects against a 
second prosecution for the same offense after acquit­
tal. I t  protects against a second prosecution for the 
same offense after conviction. And it protects against 
multiple punishment for the same offense,” North 
Carolina v. Pearce, 395 U.S. 711, 717. Petitioner’s first 
trial was aborted, at his request, before a verdict of 
guilt or innocence was rendered by the factfinder. 
This case therefore does not present any question 
concerning a second prosecution after a conviction or 
an acquittal by the factfinder.3 I t  does, however, pre­

3 Other cases now before the Court present questions concern­
ing the holding o f second trials following a conviction for a 
closely related offense (Jeffers v. United States, No. 75-1805, 
argued March 21, 1977) and following a legally erroneous “ ac­
quittal” by the judge after the jury was unable to reach a verdict 
(United States v. Martin Linen Supply Go., No. 76-120, argued

65



10

sent the question whether petitioner’s second trial for 
the same crime was proper.

The prohibition against multiple trials for the same 
offense is based upon the special interests protected 
by the Clause.

The underlying idea, one that is deeply in­
grained in at least the Anglo-American system 
of jurisprudence, is that the State with all its 
resources and power should not be allowed to 
make repeated attempts to convict an individ­
ual for an alleged offense, thereby subjecting 
him to embarrassment, expense and ordeal and 
compelling him to live in a continuing state of 
anxiety and insecurity, as well as enhancing the 
possibility that even though innocent he may 
be found guilty.

Green v. United States, 355 U.S. 184, 187-188, quoted 
in Serf ass v. United States, 420 U.S. 377, 387-388. See 
also Breed v. Jones, 421 U.S. 519; United States v. 
Jorn, 400 U.S. 470, 479 (plurality opinion).

Because of the special rules of finality created by 
the Clause, the prosecution may not retry a defendant 
who has been acquitted, on the facts, by the finder of 
facts, whether or not the instructions or legal prin­
ciples underlying the acquittal were erroneous.4 * *

February 23, 1977). W e have furnished to counsel for petitioner 
copies o f our briefs in Jeffers and Martin Linen.

* A  second trial also is barred when the prosecution, seeing that 
things are going badly, seeks “ another, more favorable oppor­
tunity to convict the accused”  (Gori v. United States, 367 U.S. 
364, 369) or, more generally, when the government seeks to “ do 
better a second time” with a more favorably disposed factfinder 
(Brock v. North Carolina, 344 U.S. 424, 429 (Frankfurter, J., 
concurring)).

66



11

United States v. Wilson, 420 U.S. 332, 347-348; United 
States v. Jenkins, 420 U.S. 358 (decision on the gen­
eral issue of guilt or innocence by judge acting as 
factfinder in bench trial) ; Fong Foo v. United States, 
369 U.S. 141 (court instructed the jury to return a 
verdict of not guilty in the middle of the prosecution’s 
case, and the jury did s o ) ; Kepner v. United States, 
195 U.S. 100. But only a “ verdict of acquittal at the 
hands of the jury [or judge in a bench tr ia l]” (For­
man v. United States, 361 U.S. 416, 426) is an absolute 
bar to a second trial. In  any other event, whether a 
second trial may be held depends upon a careful bal­
ancing of the defendant’s interest in avoiding repeti­
tious trials against the public’s interest in “ fair trials 
designed to end in just judgments.”  Wade v. Hunter, 
336 U.S. 684, 689.

W ith the exception of the principle that a verdict 
of acquittal by the factfinder is a complete bar to 
reprosecution, the Court has eschewed the application 
of any “ mechanical formula” or “ rigid rules.” Illinois 
v. Somerville, 410 U.S. 458, 462-463, 467. A  rule that 
a second trial for the same offense invariably violates 
the Double Jeopardy Clause “would create an insu­
perable obstacle to the administration of justice in 
many cases in which there is no semblance of the type 
of oppressive practices at which the double-jeopardy 
prohibition is aimed. * * * [T ]he  purpose of law to 
protect society from those guilty of crimes frequently 
would be frustrated by denying courts power to 
put the defendant to trial again.” Wade v. Hunter, 
supra, 336 U.S. at 688-689. As Mr. Justice Harlan

67



12

explained in United States v. Jorn, supra, 400 U.S. 
at 483-484, “ it is clear beyond question that the Dou­
ble Jeopardy Clause does not guarantee a defendant 
that the Government will be prepared, in all circum­
stances, to vindicate the social interest in law enforce­
ment through the vehicle of a single proceeding for a 
given offense. * * * The determination to allow re- 
prosecution in [some] circumstances reflects the judg­
ment that the defendant’s double jeopardy interests, 
however defined, do not go so far as to compel society 
to so mobilize its decisionmaking resources that it will 
be prepared to assure the defendant a single proceed­
ing free from harmful governmental or judicial 
error.”

The most important value that may be disserved by 
a mid-trial termination is the right of the accused “ to 
conclude his confrontation with society through the 
verdict of a tribunal he might believe to be favorably 
disposed to his fate.”  United States v. Jorn, supra, 
400 U.S. at 486. When an accused has had an oppor­
tunity to receive that verdict and has been convicted, 
a second trial does not violate the Double Jeopardy 
Clause even though a legal error may have prevented 
the factfinder from acquitting. See Forman v. United 
States, supra; United States v. Ball, 163 U.S. 662; 
United States v. Tateo, 377 U.S. 463. This principle 
has been carried so far as to permit a second trial 
even though the evidence at the first trial was insuffi­
cient to allow the jury to convict. Forman v. United

68



13

States, supra, 361 U.S. at 424-425; Bryan v. United 
States, 338 U.S. 552, 559-560.5

Moreover, when during the course of a trial an 
accused willingly surrenders his right to receive the 
verdict of the factfinder, this choice removes any bar­
rier to a second trial, unless the election was forced 
by judicial or prosecutorial overreaching. United 
States v. Dinits, 424 U.S. 600. Finally, even i f  an 
ongoing trial is terminated over the defendant’s objec­
tion, thereby depriving him of his “ valued right”  to 
receive the factfinder’s verdict (Wade v. Hunter, 
supra, 336 U.S. at 689), a new trial still may be held 
i f  there was manifest necessity to override the de­
fendant’s preference for the first tribunal. United 
States v. Perez, 9 Wheat. 579; Illinois v. Somerville, 
supra.

Each of these strands of double jeopardy law sup­
ports the propriety of petitioner’s second trial. Peti­
tioner was convicted by the factfinder at the first trial 
in all but matters of form; the district judge stated 
that petitioner was guilty “ beyond any reasonable 
doubt in the world” (A . 13). Petitioner willingly sur­
rendered his right to receive a more formal verdict

5 Compare United States v. Howard, 432 F. 2d 1188 (C.A. 9), 
and Greene v. Massey, 546 F. 2d 51 (C.A. 5), which discuss and 
apply this rule, with United States v. Wiley, 517 F.2d 1212 
(C.A.D.C.), which holds, in the exercise o f the powers conferred 
on appellate courts by 28 U.S.C. 2106, that after a conviction is 
reversed because the evidence is insufficient a second trial should 
not be held unless the insufficiency is attributable to causes be­
yond the control o f the prosecution.

69



14

from the factfinder in his first trial. I f  the trial had 
gone to verdict, it would have been neeessaary to set 
that verdict aside, and a second trial could have been 
held. W e discuss these considerations below in greater 
detail.

b . p e t i t i o n e r ’s m o t i o n  t o  d i s m i s s t h e  i n f o r m a t i o n  r e m o v e d
A N Y  BAR TO A SECOND TRIAL

1. In  the absence of judicial or 'prosecutorial overreaching, a 
motion for a mistrial removes any double jeopardy objection 
to a second trial

“ [W jhere circumstances develop not attributable 
to prosecutorial or judicial overreaching, a motion by 
the defendant for mistrial is ordinarily assumed to re­
move any barrier to reprosecution, even i f  the de­
fendant’s motion is necessitated by prosecutorial or 
judicial error.” United States v. Jorn, supra, 400 U.S. 
at 485. This principle follows from the rule that, i f  
the trial had gone to completion and a conviction had 
been reversed on appeal, a second trial could have 
been held. There is no point in requiring a defendant 
to endure the remainder of a trial that already (in his 
opinion) is so infected with error that a reversal and 
a second trial are bound to follow. Yet, unless a second 
trial were permitted after a mid-trial termination at 
the request of the accused, district courts would tend 
“ to reject the most meritorious mistrial motion in the 
absence of manifest necessity and to require, instead, 
that the trial proceed to its conclusion despite a 
legitimate claim of seriously prejudicial error.” 
United States v Dinits, supra, 424 U.S. at 610; foot­
note omitted.

70



15

The “ important consideration, for purposes of the 
Double Jeopardy Clause, is that the defendant retain 
primary control over the course to be followed in the 
event of [judicial or prosecutorial] error.”  Id. at 609 
(footnote omitted). I f  the defendant, for reasons he 
deems sufficient, asks to terminate the proceedings 
without receiving the verdict of the factfinder, the 
Double Jeopardy Clause does not prohibit a second 
trial.6

Petitioner surrendered his valued right to receive 
the verdict of the factfinder. A fter the trial had begun 
and the prosecutor had made his opening statement, 
petitioner’s counsel made an oral motion to dismiss 
the information; when the trial judge rebuked coun­
sel for making the motion so belatedly, counsel did not 
ask for a continuance to allow the judge to do legal

6 W e use “ factfinder” throughout this brief to refer to the 
jury in a jury trial and to the judge in a bench trial. The double 
jeopardy considerations are similar, since “ the Double Jeopardy 
Clause o f the F ifth  Amendment nowhere distinguishes between 
bench and jury trials”  (United States v. Jenkins, supra, 420 U.S. 
at 365). The only difference is that the judge in a bench trial re­
solves questions o f both law and fact, whereas in a jury trial only 
the jury may resolve factual disputes. Singer v. United States, 
380 U.S. 24. Because issues o f fact resolved in favor o f an ac­
cused may not be reexamined in a second trial (Ashe v. Swenson-, 
397 U.S. 436), it sometimes may be necessary in bench trial cases 
to determine whether the judge has acted in his capacity as 
factfinder or only in his capacity as the resolver o f legal disputes. 
There is no need to make that inquiry here, however, because it is 
clear that the judge in petitioner’s first trial did not purport to 
resolve any disputed factual issues in petitioner’s favor, and the 
second trial did not call into question any disputed issues that 
previously had been resolved against the prosecution.

71



16

research before beginning to hear evidence; when the 
trial judge announced later during the trial that he 
was ready to rule on the motion to dismiss the indict­
ment, counsel did not ask the judge to defer ruling 
until after a verdict had been rendered.7 Petitioner's 
counsel showed not the slightest interest in receiving 
the verdict of the factfinder— which was understand­
able in light of the trial judge’s emphatic and unequiv­
ocal statement that petitioner was guilty “ beyond any 
reasonable doubt in the world” (A . 13). Petitioner 
was not deprived at the first trial of his interest in 
receiving a verdict or of any other interest protected 
by the Double Jeopardy Clause.8

7 Unless, as in United States v. Jo m , supra, the trial court’s 
action is so precipitate that it is impossible to protest, the de­
fendant’s failure to object to a termination o f his trial should be 
treated as consent. United States v. Gold,stein, 479 F. 2d 1061, 
1066-1068 (C.A. 2 );  Roberts v. United States, 477 F. 2d 544, 545- 
546 (C.A. 8 ); United States v. Pappas, 445 F. 2d 1194,1199-1200 
(C.A. 3 ); Scott v. United States, 202 F. 2d 354, 355-356 
(C.A.D.C.), certiorari denied, 344 U.S. 879; Conner v. Deranvus, 
374 F. Supp. 504, 507-509 (M.D. P a . ) ; but see Galloway v. Beto, 
421 F. 2d 284, 288 n. 4 (C.A. 5), certiorari denied, 400 U.S. 912; 
Himmelfarb v. United States, 175 F. 2d 924, 931 n. 1 (C.A. 9), 
certiorari denied, 338 U.S. 860. Compare United States v. Grosso, 
C.A. 2, No. 76-1284, decided March 9, 1977, slip op. 2250-2251 
(defendant implicitly objected to the declaration o f a mistrial), 
with id. at 2263-2264 (dissent) (explicit objection is necessary, 
or consent to mistrial w ill be in ferred).

8 Indeed, once the district court had announced that petitioner 
is guilty beyond a reasonable doubt, its decision to dismiss the 
information was functionally the same as a decision to arrest 
judgment under Fed. R. Crim. P. 34. An order dismissing an 
information after verdict because o f facial insufficiency would 
have been subject to appellate review under both the old 
Criminal Appeals Act ( United States v. Sisson, 399 U.S. 267,

72



17

2. The same principles that apply to requests by the accused for 
mistrials also permit retrials after the accused has requested 
any other form of mid-trial termination

a. Function, not form, determines whether a second trial is 
permitted

I t  might be argued that the principle discussed in 
Dinits does not apply when the first trial is ended by 
an order dismissing the indictment rather than by an 
order declaring a mistrial. W e submit, however, that 
it makes no difference, for double jeopardy purposes, 
what form of mid-trial termination a defendant seeks. 
A  “ mistrial,” a “ dismissal of the indictment,”  or an 
“ acquittal” by a judge in a jury trial all are based 
upon a perceived legal error in the institution or con­
tinuation of the proceedings rather than upon the res­
olution by the factfinder of any disputed fact in favor 
of the accused. A  second trial therefore would not 
offer the prosecution the chance to do better with a 
second factfinder than it did with the first.

280-290) and the present one {United States v. Wilson, supra). 
I f  the order arresting judgment had been erroneous, the court o f 
appeals could have reversed and remanded with instructions to 
enter judgment o f conviction on the verdict. I f ,  on the other 
hand, judgment had been properly arrested, a second trial could 
have been held (just as i f  the judgment o f conviction had been 
reversed on appeal). See United States v. Tateo, supra, 377 U.S. 
at 465 (the Double Jeopardy Clause “ does not preclude the Gov­
ernment’s retrying a defendant whose conviction is set aside be­
cause o f an error in the proceedings leading to conviction” ). 
Only the fact that the district court made its pronouncement of 
guilt before allowing closing argument makes this a mid-trial 
termination. In  almost every other respect, however, it shares 
the attributes o f a post-verdict arrest o f judgment.

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18

This Court has held on many occasions that func­
tion, not nomenclature, controls when double jeopardy 
interests are at stake. United States v. Sisson, 399 
U.S. 267, 270, 279 n. 7; United States v. Wilson, 
supra, 420 U.S. at 335-339, 347-351; Serf ass v. United 
States, supra, 420 U.S. at 392; Breed v. Jones, supra, 
421 U.S. at 529. For purposes of the various policies 
that are to be served in the interpretation and appli­
cation of the Double Jeopardy Clause, it makes no 
material difference what the name of or reason for 
the mid-trial termination may be. Thus, the permissi­
bility of a retrial following a mid-trial dismissal 
should be assessed by the same standards that apply 
in the case of a termination by mistrial.

b. The interests of the accused in avoiding a second trial are 
the same whether the first trial ends in a mistrial or in an 
order dismissing the information

No matter why the first trial has ended, the most 
important fact relating to the permissibility of a sec­
ond trial is that the accused has not received the ver­
dict, on the facts, of the factfinder. When the accused 
has actively sought the mid-trial termination, how­
ever, he has— for reasons he persuinably deems suffi­
cient— abandoned his valued right to receive the ver­
dict of the factfinder. This is so whether he seeks a 
mistrial or an order dismissing the indictment.9 A fter

9 W e believe that the considerations discussed in this brief 
support a rule allowing second trials even when the district court 
has “ acquitted”  the defendant, in a jury trial, for reasons that, 
go to the general issue o f guilt or innocence. This case does not 
involve an “ acquittal”  on the merits, however, but instead con­
cerns only an order dismissing the information as defective on

74



19

all, the accused’s request to terminate the trial ex­
presses his willingness to forego receipt of a verdict. 
And there is no pressure on the accused to seek relief 
prior to verdict because—here, as in most such 
eases— he has the option to go to verdict and preserve 
his objections for post-verdict determination i f  he is 
not acquitted by the factfinder (see pages 2T-25, 

infra ).
As the Court explained in United States v. Dinitz, 

supra, 424 U.S. at 608, “when judicial or prosecutorial 
error seriously prejudices a defendant, he may have 
little interest in completing the trial and obtaining a 
verdict from the first jury. The defendant may rea­
sonably conclude that a continuation of the tainted 
proceeding would result in a conviction followed by 
a lengthy appeal and, i f  a reversal is secured, by a 
second prosecution. In  such circumstances, a defend­
ant’s mistrial request has objectives not unlike the in­
terests served by the Double Jeopardy Clause— the 
avoidance of the anxiety, expense, and delay occa­
sioned by multiple prosecutions.”  This is so when the 
defendant seeks to dismiss the indictment because of 
legal error no less than when he seeks a mistrial be­
cause of legal error. A  defendant who concludes that 
his interests are best served by taking the case from 
the factfinder (and thereby avoiding any risk that he 
will be found guilty at that trial) should not later be

its face. The Court therefore need not decide whether an “ ac­
quittal”  on the merits— a decision that the accused is not 
criminally responsible— may be followed by a second trial when 
the “ acquittal”  is not embodied in a verdict by the factfinder. 
That issue is presented in the pending petition in New York v. 
Brown, No. 76-358.

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20

heard to complain when the prosecution makes a sec­
ond effort to hold an error-free trial.

This focus upon the defendant’s abandonment o f 
his right to go to verdict at the first trial involves no 
diminution of the major protection afforded by the 
Double Jeopardy Clause— ensuring the interest o f the 
accused in the finality of verdicts in his favor by the 
factfinder. See United States v. Jenkins, supra. An 
aborted trial produces no verdict of the factfinder in 
which the accused has an interest; it finds no dis­
puted fact in favor of the accused; whatever the rea­
son for a mid-trial termination, accordingly, it does 
not implicate the defendant’s interest in the finality 
of a favorable verdict.10

c. A rule that distinguished among the reasons for the mid­
trial termination would be inconsistent with the rule allow­
ing a second trial after a verdict of guilty has been set 
aside

An important consideration, one stressed in United 
States v. Jorn, supra, is the fact that the goverment

10 Many commentators have suggested that the guarantee that 
facts found in favor o f the accused will not be subject to re­
examination is the central meaning o f the Double Jeopardy 
Clause, and that second trials therefore should be allowed when 
they would not produce a risk o f depriving the accused o f favor­
able factual findings. See Note, Twice in Jeopardy,. 75 Yale L.J. 
262 (1965); Note, Government Appeals of “Dismissals’’’ in 
Criminal Gases, 87 Harv. L . Eev. 1822 (1974); Mayers and 
Yarbrough, Bis Vexari: New Trials and Successive Prosecutions, 
74 Harv. L . Eev. 1 (1960). Other scholars, although not accord­
ing such a central position to the protection o f facts found in 
favor o f the accused, have concluded that second trials should be 
permitted after mid-trial terminations, whatever the reason for 
the terminations. See Friedland, Double Jeopardy 69-72 (1969); 
Sigler, Double Jeopardy (1969).

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21

>cannot reasonably be required to marshal its resources 
to guarantee to every accused a single error-free pro­
ceeding on pain of inability to convict those guilty of 
crime. Errors are inevitable in the criminal process. 
Not all trials w ill go smoothly; not all informations 
or indictments w ill be drafted correctly. There is no 
reason why a drafting error should confer immunity 
from prosecution on all defendants prescient enough 
to wait until trial has begun to point out the error.11

I t  would be a topsy-turvy rule i f  the constitution­
ality of a second trial could be saved by the congru­
ence of two errors. W e agree with petitioner that the 
information was improperly drafted.12 Y et i f  the dis­
trict judge in the first trial had erred and rejected

11 I f  the motion is made before trial, the court can pass upon 
the sufficiency o f the indictment prior to the attachment o f 
jeopardy. I f  the indictment is insufficient, the defendant can be 
reindicted. I f  a sufficient indictment is improperly dismissed, 
the government may obtain appellate review. Serfass v. United 
States, supra. In  either event, only a single trial w ill be necessary. 
The problem presented by the mid-trial dismissal in this case 
never would have arisen i f  petitioner’s counsel had drawn the 
■defect in the information to the court’s attention before trial.

12 The Assimilative Crimes Act, under which petitioner was 
prosecuted, establishes “ complete current conformity with the 
criminal laws o f the respective States in which * * * [federal] 
enclaves are situated.”  United States v. Sharpnack, 355 TT.S. 286, 
293. Under Indiana law, the indictment or information charging 
a violation o f Indiana Code 35-17-5-3, Burns Ind. Stat. Ann. 
10-3030 (1975), must state that the defendant knowingly com­
mitted the theft with intent to deprive the victim o f his property. 
Linnemeier v. State, 330 N.E. 2d 373, 376 (Ind. Ct. o f A p p .) ; 
Martin v. State, 300 N.E. 2d 128, 131 (Ind. Ct. o f App.) ; Mmvroe 
v. State, 339 N.E. 2d 102 (Ind. Ct. o f A p p .). The information there­
fore should have alleged that petitioner committed the theft know­
ingly and with the intent to deprive Bilskie o f his property perma­
nently. United States v. Debrow, 316 U.S. 374, 376.

77



22

petitioner’s challenge to the sufficiency of the infor­
mation, petitioner could have been tried a second time 
after the error had been corrected on appeal (or by 
the district court after verd ict). Petitioner’s argument 
is that, because the district court ruled correctly and 
dismissed the information in his case, he cannot be 
retried, but that i f  the court had erred and denied the 
motion to dismiss he could have been retried. To state 
the proposition is to demonstrate its fallacy.

A  defendant should not be allowed to transmute a 
drafting error into immunity from prosecution by 
the simple act of delaying, until trial has begun, the 
making of a motion to dismiss an indictment. The 
Double Jeopardy Clause is not a sword for defeating 
altogether the public interest in obtaining a trial of 
those accused of criminal misconduct. Accordingly, 
an accused who moves in mid-trial to dismiss the 
indictment, or to terminate the prosecution for any 
other reason, should be subject to a second trial i f  the 
termination is erroneous or if, as here, the error can 
be cured.13

13 Several courts o f appeals have agreed with this approach 
and have allowed second trials after mid-trial terminations at 
the request o f the accused. These courts have held that it makes 
no difference whether the terminations are called mistrials or 
orders dismissing the indictments. See United States v. Sanabria, 
548 F. 2d 1 (C .A. 1), petition for a writ o f certiorari pend­
ing, No. 76-1040; United States v. Kehoe, 516 F. 2d 78 (C.A. 
5), certiorari denied, 424 U.S. 900 (emphasizing the argu­
ment that an accused should not be allowed to obtain a tactical 
advantage by delaying a motion to dismiss until jeopardy 
has attached); United States v. DiSilvio, 520 F. 2d 247 
(C.A. 3 ), certiorari denied, 423 U.S. 115 (holding that as a rule

78



23

The interests of defendants, no less than the inter­
ests of the public, are best served by a rule allowing 
second trials after the first trial has been terminated 
at the request of the accused. The Court pointed out 
in United States v. Tateo, supra, 377 U.S. at 466, that 
“ it is at least doubtful that appellate courts would be 
as zealous as they now are in protecting against the 
effects of improprieties at the trial or pretrial stage 
i f  they knew that reversal of a conviction would put 
the accused irrevocably beyond the reach of further 
prosecution. In  reality, therefore, the practice of re­
trial serves defendants’ rights as well as society’s in­
terest.”  That consideration is pertinent to mid-trial

a motion in mid-trial to dismiss the indictment precludes any 
objection to a second tria l). See also United States v. Sedgwick, 
345 A . 2d 465 (D.C. App .), certiorari denied, 425 U.S. 966.

Other courts, however, have adopted a rule under which mid­
trial terminations called “ acquittals” or “ dismissals of the indict­
ment” prohibit second trials, but terminations called “mistrials” 
do not. See United States v. Scott, 544 F. 2d 903 (C.A. 6) (order 
dismissing the indictment because o f preaccusation de lay ); 
United States v. Lucido, 517 F. 2d 1 (C.A. 6) (order terminating 
the prosecution in light o f mid-trial suppression o f critical evi­
dence) ; United States v. Means, 513 F. 2d 1329 (C.A. 8) (order 
terminating the prosecution because o f alleged prosecutorial mis­
conduct and unwillingness to consent to 11-member ju r y ) ; 
United States v. BoUbins, 510 F. 2d 301 (C.A. 6), certiorari de­
nied, 423 U.S. 1048 (order dismissing the indictment because the 
statute is unconstitutional as applied ); cf. United States v. 
Grasso, supra (the Double Jeopardy Clause bars a second trial 
after judge terminated first trial by declaring a mistrial rather 
than by proceeding with the trial or granting defendant’s motion 
for acquittal, where the defendant was not entitled to either ac­
quittal or mistrial). For the reasons given in the text, we sub­
mit that these cases were wrongly decided.

79



24

requests to dismiss the indictment no less than to 
requests to an appellate court to reverse a conviction. 
I t  is doubtful that a trial court would look as favor­
ably as it should upon a defendant’s request to termi­
nate his trial i f  the judge knew that granting such a 
request would irrevocably end the prosecution. The 
judge would, instead, tend to proceed with the trial 
and leave the correction of errors to post-verdict pro­
ceedings or to appellate tribunals, after which second 
trials could be held. I t  would be ironic i f  the only way 
to comply with the Double Jeopardy Clause— which 
was designed to prevent repetitious litigation— were 
for district courts to hold or complete useless trials 
that could not end in valid verdicts. A  trial judge 
should not be put in the quandary of holding what he 
and the accused agree is a useless trial in order to 
safeguard society’s interest in prosecuting those ac­
cused of crime.

d. A defendant may safeguard his legitimate interests by go­
ing to verdict and saving his objections for post-verdict 
resolution

The rule that a defendant who does not object to a 
pre-verdict termination of his first trial should not be 
able to block a retrial on double jeopardy grounds 
does not impair the defendant’s “ valued right” to go 
to verdict at the first trial, and it does not subject his 
choice to pressure of any sort. Par from it; a defend­
ant who desires to obtain the ju ry ’s verdict may do so 
simply by asking the judge to postpone his legal rul­
ing until after verdict, thereby receiving an acquittal 
by the factfinder ( i f  one is forthcoming).

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25

This strategy will safeguard all of the defendant’s 
interests. I f  he should be found guilty by the fact­
finder, he would be entitled to a post-verdict ruling 
on his claim of legal error— in the instant case, by 
means of a motion for arrest of judgment pursuant 
to Fed. R. Grim. P. 34. I f  there is error, the verdict 
would be set aside and a new trial would be held. I f  
the defendant’s assertion of error were incorrect, the 
district court (or an appellate court) would reject it, 
and the verdict would stand. I f  the assertion of error 
were incorrect, but the district court nevertheless 
found error, the court of appeals could rectify the dis­
trict court’s mistake without the need for holding a 
second trial. Following Wilson, Jenkins, and Serf ass, 
many courts have reversed erroneous rulings in favor 
of defendants and reinstated verdicts of guilty.14

Saving legal issues for post-verdict decision pre­
serves the accused’s right to receive an acquittal by 
the factfinder at a single trial; it also minimizes 
his exposure to multiple trials by eliminating any 
significant chance that a retrial might be required by 
erroneous mid-trial terminations. I f ,  disdaining the 
opportunity to receive the verdict of the factfinder, 
the accused seeks and receives a mid-trial termina­
tion, it is not unfair to hold a second trial.

14 See, e.g., United States v. Donahue, 539 F. 2d 1131 (C.A. 8 ); 
United States v. Burroughs, 537 F. 2d 1156 (C.A. 4) • United 
States v. Oravero, 530 F.2d 666 (C .A .5 ); United States v. 
DeGarces, 518 F. 2d 1156 (C.A. 2). Cf. United States v. Finch, 
C.A. 9, No. 75-2149, decided December 22, 1976 (reversing an 
“ acquittal” after trial on stipulated facts).

81



26

In  sum, neither the label of nor the reason for the 
order terminating the first trial prior to verdict 
should control the permissibility of a second trial un­
der the Double Jeopardy Clause.15 16 The expense, 
trauma and humiliation of the second trial are the 
same no matter why the first trial ended before ver­
dict. The reason why the first trial ended may show 
that a second trial should not be held (if, for example, 
the statute is unconstitutional or does not apply to 
the conduct the accused is alleged to have committed, 
or i f  the judge correctly determines that the evidence 
cannot support a conviction), but those reasons axe 
not based upon the Double Jeopardy Clause.

15 In  England, the reason why the first trial ended is imma­
terial. Jeopardy does not “ attach” until the jury returns a verdict, 
and second trials routinely are allowed after mid-trial termina­
tions. See Friedland, Double Jeopardy 21-38 (1969). While serv­
ing other double jeopardy values, the English approach affords a 
defendant no protection of his interest in receiving the verdict of— 
and possible exoneration by—the factfinder at the first trial.

16 W e believe that this is what the Court was discussing in 
United States v. Jenkins, supra, 420 U.S. at 365 n. 7, which 
observed that it is important whether proceedings in the trial 
court terminate in a mistrial or in the defendant’s favor. A  “ mis­
trial” usually is granted in contemplation o f reprosecution. In  
Jenkins, on the other hand, the trial ended in a ruling on the 
o-eneral issue by the factfinder. The Court could not determine 
whether the factfinder had resolved certain factual issues against 
the defendant, and the judgment in that case therefore operated, 
in effect, as an absolute acquittal. The factfinder’s judgment may 
have absolved the accused from criminal responsibility, and he 
had an interest in preserving the finality o f that resolution. A  
trial that is aborted before verdict, however, does not entail any 
factual finding absolving the accused o f criminal responsibility.

82



27

Petitioner’s counsel asked for an order dismissing 
the information, and he received the relief he sought. 
That is enough to demonstrate that a second trial, on 
a proper charge, should be permitted. “ Here, as in 
the mistrial context, [petitioner] elected to forego Ms 
valuable right to have his trial * * * concluded by 
the first tribunal. * * * [Petitioner] has not made, 
nor can he make, any suggestion that the government 
intentionally manipulated events to gain some advan­
tage at the first trial or to force [petitioner] to forego 
his right to proceed before the first tribunal. * * * 
Since [petitioner] voluntarily requested termination 
of proceedings * * *, and since there can be no sug­
gestion that [petitioner’s] request was attributable to 
developments resulting from prosecutorial or judicial 
overreaching, * * * there is no double jeopardy bar 
to a [second] prosecution on this cause.” United 
States v. Sanabria, 548 P. 2d 1, 7-8 (C.A. 1), petition 
for a writ of certiorari pending, No. 76-1040.

C. IT IS N O T  DISPOSITIVE T H A T  T H E  DISTRICT COURT HEARD EVIDENCE 
AT T H E  FIRST TRIAL BEFORE DISMISSING T H E  INFORMATION

As should be clear from the foregoing discussion, 
we believe that the presence or absence of an objec­
tion by the defense to any pre-verdict termination of 
a trial is the critical factor in determining whether a 
second trial may be held. I f  the defense, having been 
afforded reasonable opportunity to do so, does not ask 
to receive the verdict of the tribunal then empaneled,

83



28

then it cannot reasonably be found that the defendant 
was deprived of his “ valued right”  to that verdict, a 
deprivation that would be the sole reason in logic or 

policy for precluding a second trial.
This approach by and large eliminates any reliance, 

in this case, upon the doctrine of “ manifest necessity ’ 
that was the foundation for this Court’s decision in 
Illinois v. Somerville, supra. The “ manifest necessity”  
rule does not come into play unless the trial judge 
has overridden the defendant’s preference for the tri­
bunal then sitting; only a decision to terminate a trial 
despite the accused’s desire to go to verdict must be 
justified by “manifest necessity.”  But petitioner did 
not assert such a desire, and his wishes were not dis­

regarded.
Under the approach we have taken, application of 

the “manifest necessity” standard must reflect a sen­
sitive regard for the factors that bear upon the fa ir­
ness of depriving the defendant of his chance to ter­
minate the contest by an acquittal at the first trial. In  
the hung jury cases, for example, manifest necessity 
is established because there is no reasonable possi­
bility that the jury, being irrevocably deadlocked, 
would acquit the defendant. In  other cases, where it 
cannot confidently be said that no verdict of acquittal 
is forthcoming, the courts must inquire into the avail­
ability of alternative means to purge the taint of 
the events precipitating the consideration of a mis­
trial. W e think the inquiry also should encompass 
such factors as the degree to which actions of

84



29

the defense have brought about the crisis and the 
stage of trial at which the termination is being con­
sidered. See United, States v. Gentile, 525 F. 2d 2o2, 
255-258 (C.A. 2), certiorari denied, 425 U.S. 903.1’ 

Illinois v. Somerville, supra, can be analyzed in 
these terms. Here, as in Somerville, a trial was termi­
nated before verdict because of a defect on the face 
of the charge that made a valid conviction impossible. 
The trial in Somerville was terminated before any 
evidence had been taken. The termination took place 
over the defendant’s objection, but the Court con­
cluded that it was manifestly necessary to abort the 
trial because the “ ends of public justice” (410 U . S .  

at 463) dictate that the parties to a criminal 
case and the courts need not be burdened by 
mounting a full trial that could not end in a 
valid judgment of conviction. W e believe that it 
would make no difference whether the termination be­
fore verdict were called a mistrial (as in Somerville) 17

17 For example, i f  a mistrial appears to be necessary because the 
defense has engaged in questionable conduct that has materially 
prejudiced the prosecution’s prospect of obtaining a fair and im­
partial verdict, it obviously would not be improper to terminate 
the first trial whether or not the defendant objected to the termi­
nation. And a pre-verdict termination that occurs early in the 
trial (as in United States v. Dinitz, supra, and Illinois v. Somer­
ville, supra) would constitute a less grave impairment o f the de­
fendant’s “ valued right”  than would a termination at the close 
of the evidence following a three-month trial. O f course, a mis­
trial declared even at the very beginning o f a trial may bar a 
second trial when, as in Downum v. United States, 372 U.S. 734, 
it is done to avoid a likely acquittal.

85



30

or an order dismissing the indictment (as in the pres­
ent case). In  either event the trial ended with the 
expectation that the defect in the charge would be cor­
rected; a mistrial and an order dismissing the indict­
ment are, in these circumstances, functionally equiv­
alent, and it would be wholly insupportable to reach a 
different result because of the label the trial court 
placed upon its action. See, e.g., United States v. Sis­
son, supra, 399 U.S. at 270, 279 n. 7; Serf ass v. United 
States, supra, 420 U.S. at 390-392.

Manifest necessity therefore would have supported 
the termination of petitioner’s first trial— even over 
his objection— early in the trial. But once the evidence 
has been taken, there is little to weigh against the 
interest of a protesting defendant in receiving the 
verdict of the factfinder and, perhaps, being acquitted 
on the spot. There was manifest necessity in Somer­
ville to avoid holding a useless tr ia l; there would not, 
we believe, be manifest necessity to prevent a defend­
ant from receiving a verdict once all of the evidence 
has been heard.18

18 Somerville distinguished (410 U.S. at 464-465) Downum 
v. United States, 372 U.S. 734, upon which petitioner relies (Br. 
17). Downum does not help petitioner. In  Downum the prosecu­
tor allowed jeopardy to attach on six counts o f an indictment, 
knowing that a witness critical to two o f the counts would not be 
present. The prosecutor then successfully obtained a mistrial 
with respect to all six counts, including the four counts for which 
no witness was missing. The Court held that this mistrial was not 
justified by manifest necessity. In  the present case, however, the 
prosecutor did not allow jeopardy to attach although knowing of 
a flaw ; unlike the case in Downum, there is here no prosecutorial 
overreaching. Nor did the prosecutor in the present case seek the 
termination o f a trial on counts that were not infected with error.

86



31

I t  does not follow from this analysis, however, that 
petitioner’s second trial violated the Double Jeopardy 
Clause because it was terminated after all of the evi­
dence had been received.19 Petitioner’s trial was not 
terminated over his objection. In  our view the com­
plete answer to petitioner’s arguments is that he had 
a right at the first trial to insist upon receiving a 
verdict after all of the evidence had been heard. He 
could have been acquitted, i f  the tribunal had been so 
disposed.20 Petitioner’s willingness to forego receiving 
the verdict of the factfinder justifies his second trial.

The district court’s action in hearing evidence in 
petitioner’s case was entirely reasonable. Petitioner 
did not object either to the taking of evidence or to 
the termination before formal verdict. The trial was 
underway. The prosecutor had made his opening- 
statement. Although jeopardy technically had not “ at­
tached” because no evidence had been heard,21 it would 
have been poor judicial administration for the judge 
to have stopped the trial in its tracks, sua sponte, 
while he researched a belated oral motion by defense 
counsel.

19 Petitioner apparently agrees with much o f the analysis we 
have presented above (Br. 22 n. 35).

20 Indeed, it seems likely that the district court, were it disposed 
to acquit petitioner, would have terminated the trial— and the 
entire controversy— by a verdict o f “not guilty”  rather than by 
dismissing the information. I t  is plain from the record, however, 
that the court was not the least disposed to acquit petitioner (see 
A. 13).

21 See Serf ass v. United States, supra, 420 U.S. at 388; Wade v. 
Hunter, supra, 336 U.S. at 688.

87



32

The delay in ruling upon petitioner’s motion to dis­
miss the information was caused primarily by the de­
lay of petitioner’s counsel in making the motion. I t  is 
one thing to say that a written motion made well in 
advance of trial should be passed upon before jeop­
ardy attaches; it is quite another to say that a district 
court has an obligation to rule at once upon oral mo­
tions made in the course of trial. Motions to dismiss 
the indictment or information sometimes require sub­
stantial research and study; the trial judge in peti­
tioners first trial could not have known whether 
lengthy study would be needed here until he had halted 
the trial and looked at the state case that had been 
cited to him.

Petitioner has not offered any reason for his tardi­
ness in making the motion. His counsel had been ap­
pointed approximately two months before trial, yet 
he did not make the motion to dismiss until the trial 
was under way. Moreover, counsel did not ask for a 
continuance of the trial and did not voice any objec­
tion to the taking of evidence. I t  is now too late for 
petitioner to argue that this taking of evidence—to 
which counsel did not object— was an error that bars 
the holding of a second trial. Petitioner’s objection or 
request for a continuance would have offered the dis­
trict court the opportunity to avert any of the hard­
ship of which petitioner now complains. His failure 
to make this simple motion must be taken as acquies­
cence in the hearing of evidence until a convenient 
recess would allow the trial judge to do some brief 
research. Cf. Francis v. Henderson, 425 H.S. 536; Es­

88



33

telle v. Williams, 425 U.S. 501; Davis v. UmYed Bettes, 
411 U.S. 233.

Petitioner’s response to these arguments is twofold. 
First, he contends, an objection or request for a con­
tinuance would have been futile (B r. 23). Second, 
he argues, the district court should have ordered a 
recess sum sponte (Br. 20-23 and n. 34).

The argument that an objection or request for a 
continuance would have been futile is nothing but 
speculation. Cf. Estelle v. Williams, supra. Although 
the trial judge had tentatively denied the motion to 
dismiss the information, subject to further research 
(A . 9), the judge had not indicated unwillingness to 
halt the trial and do the research immediately. He was 

simply never asked to halt the trial, and therefore he 
never had an opportunity to express his views on the 
matter.

Petitioner’s argument that the court should have 
interrupted the trial sua sponte fares no better. Every 
interruption of an ongoing trial subjects witnesses 
and the parties to inconvenience and delay. The wit­
nesses in this ease were in court waiting to testify, 
the prosecutor had made his opening statement, and 
for all the trial judge knew research on the motion 
would have been complicated and lengthy. Petitioner 
contends that this is not so, that it should have been 
evident that the information was defective. But i f  
the information was patently defective, why did peti­
tioner’s counsel wait so long to make the motion to 
dismiss1? I f  it must be assumed that the deficiency 
could be seen without the need for research, then it

89



34

also must be assumed that counsel delayed making the 
motion to dismiss in the hope that jeopardy would 
attach before the trial judge realized that the infor­
mation was defective. And i f  this case is treated as 
one in which counsel delayed for the purpose of turn­
ing the shield of the Double Jeopardy Clause into a 
sword, then petitioner is in no position to argue that 
the trial judge made a fatal error by not dismissing 
the information at once or interrupting the trial to do 
research.22

The district court’s decision to hear the evidence at 
petitioner’s first trial cannot be characterized as ju­
dicial overreaching. I t  did not deprive petitioner of 
an opportunity to receive the verdict of the factfinder. 
Quite the contrary, evidence was received and, i f  the 
prosecution’s case had been insufficient, the trial would 
have ended in an acquittal, on the facts, by the finder

-2 Petitioner also argues (Br. 20-21, 23-27) that the failure of 
the prosecutor to amend the information after its defect was called 
to his attention differentiates this case from Somerville. Petitioner, 
however, never asked for an amendment ; he sought only outright 
dismissal. I f  petitioner had raised his objection to the information 
before trial, amendment would have been a simple matter. But 
the fact that the objection was made during the trial deprived the 
prosecutor of the opportunity to do research and recognize his 
error, just as it deprived the district court o f the opportunity to 
do research. Although it doubtless would have been better practice 
to have amended the information once the trial judge had con­
cluded that it was defective (see Fed. R. Grim. P. 7 (e ) ),  the pro­
secutor’s failure to suggest this course, in the absence o f a request 
by petitioner, violated neither the Double Jeopardy Clause nor 
the Due Process Clause. In  light o f the trial judge’s belief (A . 13) 
that the prosecution had proved guilt beyond a reasonable doubt, 
the prosecutor's neglect to amend the information was much more 
harmful to the prosecution than it was to petitioner.

90



35

of facts. There was no unreasonable delay in passing 
on the motion; the entire trial took less than two 
hours, and the court passed upon petitioner’s motion 
promptly after the first recess had given it the oppor­
tunity to do some research.

What happened at petitioner’s first trial was cer­
tainly no worse than i f  the trial judge had erroneously 
adhered to his initial denial of the motion to dismiss 
the indictment. I f  the judge had erred, he would have 
entered a verdict, and the conviction would have been 
reversed on appeal. There still would have been two 
trials— but, in the interim between verdict and rever­
sal, petitioner would have stood as a convicted man. I t  
is hard to see how petitioner was harmed by the fact 
that the trial judge followed the correct course and 
dismissed the information.

Petitioner’s final argument is that the district court 
should not have given the prosecution a full oppor­
tunity to see how the case would go and to improve 

upon its performance at a second trial (Br. 10-11). 
The prosecution would have had the same oppor­
tunity, however, i f  the district court erroneously had 
denied the motion to dismiss and the case had been 
reversed on appeal. Since the first trial could not have 
ended in a valid conviction, the district court’s deci­
sion to take evidence effectively offered petitioner two 
chances to be acquitted while exposing him to only one 
risk of conviction. See Luclwig v. Massachusetts, 427 
U.S. 618, 630-632, which upholds against a double 
jeopardy argument the Massachusetts system under 
which an accused may obtain a jury trial only by

91



38

standing trial twice. There, as here, the dual trial o f­
fered the accused a full preview o f the prosecution’s 
case and two chances to be acquitted.23

Moreover, i f  this concern were a genuine one in this 
case and not an afterthought, petitioner presumably 
would have objected to proceeding with a trial he 
knew could not result in a valid conviction. Whatever 
hardship petitioner might have experienced in stand­
ing trial twice is directly attributable to his untimeli- 
ness in making the motion to dismiss the information. 
But any hardship wTas not sufficiently weighty to per­
suade his counsel to move for a continuance or to ob­
ject to the taking o f evidence, and petitioner’s inter­
ests here must accordingly be “ subordinated to the 
public s interest in fa ir trials designed to end in just 
judgments.”  Wade v. Hunter, supra, 336 U.S. at 689. 
The Double Jeopardy Clause did not prohibit peti­
tioner’s second trial.24

23 The present case would perhaps be more difficult i f  the trial 
judge s delay in passing upon the motion to dismiss unnecessarily 
had afforded the prosecution a preview o f petitioner’s evidence. 
But petitioner presented no evidence at either trial, and the ob­
jections to a preview by the prosecution (which would be based 
largely on the Due Process Clause rather than the Double Jeop­
ardy Clause) therefore are not presented here.

.24 Petitioner also contends (Br. 25-27) that his. second trial 
violated the Due Process Clause. This adds nothing to the double 
jeopardy arguments. Multiple trials are held routinely in civil 
litigation (see, e.g., Montgomery Ward <& Co. v. Duncan, 311 U.S. 
243), and it has never been thought that multiple trials are them­
selves offensive to anything in the Due Process Clause. Unless 
multiple trials are staged for the purpose of harassment, a circum­
stance lacking here, they do not violate the Due Process Clause. Cf. 
North Carolina v. Pearce, supra; Allee v. Medrano, 416 U.S. 802.

92



37

C O N C L U S I O N

The judgment of the court of appeals should be 
affirmed.

Respectfully submitted.
W ade H. McCree, Jr.,

A pril 1977.

Solicitor General. 
B enjamin R. Civiletti, 
Assistant Attorney General. 

A ndrew L. F rey,
Deputy Solicitor General. 

F rank H. E asterbrook, 
Assistant to the Solicitor General. 

Jerome M. F eit,
W illiam  Cf. Otis,

Attorneys.

93





IN  TH E

Suprem e C ourt of tlje $3mteb States.
OCTOBER TERM 1976

No. 76-5187

PHILLIP JEROME LEE,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE SEVENTH CIRCUIT

REPLY BRIEF FOR THE PETITIONER

CONRAD KELLENBERG 
JOSEPH P. BAUER

Notre Dame Law School 
Notre Dame, Indiana 46556

Court Appointed Co-counsel 
for Petitioner

95



4



TABLE OF CONTENTS

Page

ARGUMENT:
I. THE DOUBLE JEOPARDY CLAUSE OF

THE FIFTH AMENDMENT BARS PETI­
TIONER’S RETRIAL ........................................................  1

A. Barring petitioner’s second trial is consis­
tent with the policy objectives of the
Double Jeopardy Clause .................................................2

B. Petitioner is not estopped from asserting 
his rights under the Double Jeopardy'
Clause ................................................................................ 4

II. THE DUE PROCESS CLAUSE OF THE
FIFTH AMENDMENT BARS PETITION­
ER’S RETRIAL ......................................................................8

III. CONCLUSION ........................................................................ 9

IV. CORRECTION TO PETITIONER’S BRIEF ................. 10

TABLE OF AUTHORITIES
Cases:
Barker v. Wingo, 407 U.S. 514 (1972) ........................................10

Benton v. Maryland, 395 U.S. 784 (1969) ................................ 9

Brady v. Maryland, 373 U.S. 83 (1963) ........................................ 9

Doyle v. Ohio, 426 U.S. 610 (1976)  9

Illinois v. Somerville, 410 U.S. 458 (1973) ................................  2

United States v. Dinitz, 424 U.S. 600 (1976) ........................  2,3

United States v. Martin Linen Supply Co., ____
U.S_____ ,4 5  U.S.L.W. 4337 (1977) .................................  2

United States v. Wilson, 420 U.S. 332 (1975) ........................ 2

Wade v. Hunter, 336 U.S. 684 (1949) .....................................  3,7

(i)

97



Page

United States Constitution:

Fifth Amendment .............................................................................. 9

Miscellaneous:

Federal Rules of Criminal Procedure:
Rule 7(e) ...................................................................................... 6
Rule 12(b)(2) .............................................................................. 5
Rule 51   5

(ii)

98



Suprem e C ourt of tfje Uniteb States;
OCTOBER TERM 1976

IN  TH E

No. 76-5187

PHILLIP JEROME LEE,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE SEVENTH CIRCUIT

REPLY BRIEF FOR THE PETITIONER

I.

THE DOUBLE JEOPARDY CLAUSE OF 
THE FIFTH AMENDMENT BARS PETI­
TIONER’S RETRIAL.

The brief for the United States recognizes that the 
case at bar presents a different factual situation from 
previous cases in this Court in which retrial was

99



2

permitted after a motion for a mistrial, e.g., United 
States v. Dinitz, 424 U.S. 600 (1976); Illinois v. 
Somerville, 410 U.S. 458 (1973). In those cases, the 
trial court granted the mistrial as soon as the motion 
therefor was raised. Here, instead, although the motion 
to dismiss was made at the beginning o f the trial, the 
court heard the entire evidence in the case before 
dismissing the action. The United States attempts to 
distinguish those cases on two levels. First, it says that 
petitioner was not prejudiced by the receipt o f evidence 
before the motion was passed upon. Then, it argues 
that petitioner’s trial counsel was largely responsible for 
any procedural deficiencies.

A. Barring petitioner’s second trial is consistent 
with the policy objectives of the Double 
Jeopardy Clause.

The policy objectives o f the Double Jeopardy Clause 
have already been stated in petitioner’s principal 
brief-preventing prosecutorial abuse from multiple 
prosecutions;1 protecting the defendant from the 
emotional, financial and social injuries caused by 
repeated exposure to the trauma o f trial; safeguarding 
the defendant’s right not to have his defense tactics 
previewed by the prosecution,2 and his right to prevent

1 Recent cases have been “focusing on the prohibition against 
multiple trials as the controlling constitutional principle.” United 
States v. Wilson, 420 U.S. 332, 346 (1975), cited in United
States v. Martin Linen Supply Co., ____ U.S. _____ , 45 USLW
4337, 4339 (1977).

2In fact, prior to the first trial, petitioner had originally 
indicated that he would call an alibi witness. At the trial, he 
decided not to call this witness, and instead the defense rested 
immediately after the conclusion of the prosecution’s case. This 
defense strategy may have been valuable information for the 
prosecution’s preparation for the second trial. (1st Tr. Trans, p. 
67, App. p. 13).



3

the prosecution from having a dress rehearsal o f the 
trial, complete with witnesses and defendant; and 
advancing basic notions o f procedural fairness. The 
Government argues that the only additional interest o f 
the defendant which the Double Jeopardy Clause might 
protect, in the situation at bar, as contrasted to the 
concededly allowed retrial following a defendant’s 
successful appeal o f his conviction, is the “ valued right 
to have his trial completed by a particular tribunal.” 
Wade v. Hunter, 336 U.S. 684, 689 (1949). The 
Government further argues that petitioner did not lose 
even this, since the trial court indicated its belief in 
petitioner’s guilt. Petitioner has already suggested that 
this comment was a gratuitous obiter dictum, (Pet. Br. 
p. 18, n. 27). However, the respondent’s argument 
overlooks the two parallel rights which were lost by the 
petitioner.

In addition to the right to have a verdict, another 
important objective o f a defendant is to retain some 
measure o f control over his trial.3 The defendant does 
not want to sit through the anxiety o f trial i f  he knows 
that it is procedurally so defective that it might as well 
be terminated immediately, in order to begin a proper, 
new trial. (Pet. Br. pp. 23-24).4 Here, not only did

3“The important consideration, for purposes of the Double 
Jeopardy Clause, is that the defendant retain primary control 
over the course to be followed in the event of such error 
[requiring a motion for a mistrial].” United States v. Dinitz, 424 
U.S. 600, 609 (1976).

4 The brief for the United States recognizes this interest: 
“There is no point in requiring a defendant to endure the 
remainder of a trial that already (in his opinion) is so infected 
with error that a reversal and a second trial are bound to 
follow.” (Res. Br. p. 14).

101



4

petitioner not have control over the stage at which his 
trial was terminated, but after sitting through the trial 
to the bitter end, notwithstanding an objection at the 
very beginning o f the trial, he was then denied the 
benefit o f an ultimate determination—the verdict was 
never pronounced.

B. Petitioner is not estopped from asserting his 
rights under the Double Jeopardy Clause.

The brief for the United States points to certain 
omissions by defense counsel at the first trial, which it 
is asserted should estop petitioner from contesting the 
unfairness o f subjecting him to repetitive trials.

First, the Government suggests that defense counsel 
sought a tactical advantage by raising the deficiency in 
the information only on the day o f trial, rather than by 
pre-trial motion. One can only speculate about trial 
counsel’s motives. However, as respondent points out in 
its brief (Res. Br. p. 2), Mr. Swanson was petitioner’s 
second appointed counsel, appointed seven weeks 
before the commencement o f the trial. The original 
appointed counsel withdrew when he became associated 
in law practice with a U.S. Magistrate. Thus, it may be 
that the new counsel, receiving the case on the 
rebound, focused primarily on investigation and inter­
viewing witnesses. He may simply not have had time, 
notice or compelling reason to examine the information 
in detail until the eve o f trial. It may be that instead of 
seeking to hide the defense, to raise it only at trial, Mr. 
Swanson only noticed the defect shortly before the case 
was scheduled for trial. This Court certainly can take 
judicial notice o f the heavy burden o f many counsel

102



5

appointed in in forma pauperis cases, and o f the simple 
reality that such counsel may be unable to devote the 
same attention to these cases as defense counsel to 
wealthier clients usually render. It bears emphasis that 
Mr. Swanson did raise the deficiency in the information 
at the very beginning o f trial, before any evidence had 
been introduced. It would be far stronger evidence o f a 
trial tactic if he had pointed out the deficiency only 
after the Government had put in its case and defense 
counsel had made the evaluation that the evidence was 
unfavorable to his client.* 5

Second, the Government argues that after the trial 
court declined to rule on the motion directed to the 
sufficiency o f the information, the petitioner should 
have objected to continuing with the trial. We have 
already pointed out (Pet. Br. p. 23) that requiring the 
defendant to press such objections is utterly unrealistic, 
especially in a bench trial. It would hardly be good 
strategy to argue with the judge who has just made the 
ruling, when that same individual not only will control 
the entire flow o f the case, but will also be the trier o f 
fact.6

5 Respondent does not challenge the timeliness of the motion 
objecting to the sufficiency of the information. Federal Rule of 
Criminal Procedure 12(b)(2) provides that “failure of the 
indictment or information to charge an offense shall be noticed 
by the court at any time during the pendency of the 
proceeding.”

5 The Federal Rules of Criminal Procedure have expressly 
eliminated the requirement that a party make an exception to an 
adverse ruling of the court: “Exceptions to rulings or orders of 
the court are unnecessary and for all purposes for which an 
exception has heretofore been necessary it is sufficient that a 
party, at the time the ruling or order of the court is made or 
sought, makes known to the court the action which he desires 
the court to take or his objection to the action of the court and 
the grounds therefor. . . .” Fed. R. Crim. P. 51.

Furthermore, an objection to the sufficiency of the informa­
tion would seem to carry with it the implicit request that, if the 
court is unsure about the motion, it will grant a continuance to 
determine the information’s sufficiency.



6

Instead o f demanding that defense counsel have sole 
responsibility for objecting, it seems more appropriate 
to ask why the U.S. Attorney did not request a recess 
or move to amend the information7 or why the judge 
did not order the recess sua sponte. The prosecution 
was obviously responsible for drafting the faulty 
information; therefore, it does not seem unfair to 
require it to bear the responsibility o f requesting an 
opportunity to check its sufficiency, once the very 
defect is pointed out by the defendant. Since the 
record demonstrates that the deficiency was noticeable 
simply by comparing the information with the appli­
cable statute, putting such a duty on the prosecution or 
the court could hardly be characterized as onerous.8

7 If the prosecution had been so sure that the evidence after 
trial would point to guilt, it is curious that prior to the judge’s 
ruling, the U.S. Attorney never availed himself of the oppor­
tunity given by Fed. R. Crim. P. 7(e), of moving to amend the 
information to cure the defect. The failure of the U.S. Attorney 
to make this motion may indicate that he preferred a second 
trial, at which time he would attempt to bolster his case. The 
argument of the United States (Res. Br. p. 34, n. 22) is once 
again an illustration of respondent’s belief that the responsibility 
of securing an error-free trial falls principally on the defendant.

8 The Government asserts that “the trial court in petitioner’s 
first trial could not have known whether lengthy study would be 
needed here.. .” to determine if the information was defective. 
(Res. Br. p. 32). We have already noted the fact that the judge 
stated, when he ruled on the motion, that “ [t] he briefest 
examination of the statute establishes [the d efect].. . ” (Pet. Br. 
p. 21, n. 33). We have also noted that hindsight shows that the 
research took no more than a few minutes. But, even without 
the benefit of hindsight, it is fair to point out, as Judge 
Eschbach himself implied, that a first year criminal law course 
teaches that intent is always an element of theft. “ [I] f  a law 
clerk of mine out of law school drafted something like that, I

104 would send him back for a refresher course.” (1st Tr. Trans, p. 
6 8 , App. p. 14). Thus, unlike an arcane rule of law, here the 
objection was fundamental enough that even an objection on the 
day of trial should have been more than sufficient.



7

The United States asserts that “ [ t ] he argument that 
an objection or request for a continuance would have 
been futile is nothing but speculation.”  (Res. Br. p. 33). 
The United States also asserts that “ it would have been 
poor judicial administration for the judge to have 
stopped the trial in its tracks”  to research petitioner’s 
motion (Res. Br. p. 31). Respondent can not have it 
both ways. I f  such a delay would have been unwise, 
then a motion by the petitioner would indeed have 
been futile, for it would have been expected that the 
trial judge would not grant that motion. If, on the 
other hand, the motion would have been granted, then 
it would have been equally appropriate for the judge to 
have granted the recess sua sponte, or for the 
prosecution to have made a request therefor.

Finally, the United States argues that the petitioner 
should have preserved the “ valued right to have his trial 
completed by a particular tribunal,”  ( Wade v. Hunter, 
336 U.S. 684, 689 (1949)), by insisting that the trial 
court first render a verdict before ruling on the 
objection to the information. An examination o f the 
trial record, however, will show that under the 
circumstances, requiring petitioner to make such a 
request would have been unreasonable. At the conclu­
sion o f the prosecution’s evidence, defense counsel 
made a motion to dismiss the action for failure o f 
evidence. The court denied the motion, while noting 
that this ruling did not apply to defendant’s motion 
going to the sufficiency o f the charge. After the defense 
rested without presenting evidence, the court then made 
its obiter dictum regarding petitioner’s guilt. Immedi­
ately thereafter, it dismissed the action pursuant to the 
reserved motion. Petitioner’s motion directed to the 
sufficiency o f the information was not expressly

105



renewed. Defense counsel had inadequate warning that 
he should affirmatively ask for a verdict, since at that 
point it was unclear that the verdict was not forth­
coming and that the court was about to rule directly on 
the reserved motion.

II.

THE DUE PROCESS CLAUSE OF THE 
FIFTH AMENDMENT BARS PETITIONER’S 
RETRIAL.

Subjecting petitioner to a second trial, after an 
erroneous first trial, also violated petitioner’s rights 
under the Due Process Clause o f the Fifth Amendment. 
The United States argues (Res. Br. p. 36, n. 24) that 
the Due Process Clause “ adds nothing to the double 
jeopardy arguments [because] [m jultiple trials are held 
routinely in civil litigation . . . and it has never been 
thought that multiple trials are themselves offensive to 
anything in the Due Process Clause.” 9

The case at bar, however, involves more than a mere 
repetitive trial. The proceedings as a whole were grossly 
unfair towards the petitioner. Instead o f safeguarding 
his rights, the prosecutor and trial judge subjected him 
to a needless, and useless, first trial, although a simple 
comparison o f the information and the applicable 
statute would have shown that the conviction could 
never be sustained and that therefore further proceed­
ings were futile.

9 Interestingly, the United States concedes that there is such a 
difference in its brief in this Court in Jeffers v. United States, 
No. 75-1805: “ [S] uccessive prosecutions that pass muster under 
the Double Jeopardy Clause might in some circumstances be so 
unfair as to violate due process. . . .” (At p. 14).



9

Although the limits o f the Due Process Clause are 
sometimes difficult to determine, it is clear that its 
standards are violated when the process is unfair.

Society wins not only when the guilty are 
convicted but when criminal trials are fair; our 
system o f the administration o f justice suffers 
when any accused is treated unfairly. Brady v. 
Maryland, 373 U.S. 83, 87 (1963).10

The cumulative errors in the first trial were such that, 
when the trial was terminated after all the evidence was 
taken but without any verdict being rendered, subject­
ing petitioner to a second trial violated his rights under 
the Due Process Clause.

III.

CONCLUSION

The basic defect in the respondent’s position is that 
the United States would cast the principal burden for 
safeguarding the defendant’s Constitutional rights on 
the defendant himself. The United States gives little 
consideration to the alternatives that were available 
both to the prosecution and to the judge, to insure that 
there would be a single fair trial. Because all parties 
failed in some measure to perform up to excellence, the 
United States would estop the petitioner from asserting 
the protections guaranteed him by the Fifth Amend­
ment. We respectfully suggest that our system o f justice 
creates a different balance. I f  the prosecution and the

10For an analysis of the Due Process Clause in a setting 
implicating double jeopardy considerations, see Mr. Justice 
Harlan’s dissent in Benton v. Maryland, 395 U.S. 784, 809-813 
(1969). Compare Doyle v. Ohio, 426 U.S. 610 (1976). 107



10

court act deficiently—as here, both in initiating the trial 
and in carrying it out—it is simply not enough to say 
that it is the defendant who ought to have done more 
to rescue them from their shortcomings, or who must 
pay the price. This Court has set a higher standard:

A  defendant has no duty to bring himself to trial; 
the State has that duty as well as the duty o f 
insuring that the trial is consistent with due 
process. Barker v. Wingo, 407 U.S. 514, 527
(1972).

IV.

CORRECTION TO PETITIONER’S BRIEF

The Statement o f the Case and the Summary o f 
Argument in Petitioner’s Brief may be read to suggest 
that petitioner’s objection to the sufficiency o f the 
information was made prior to the day o f trial. To 
correct any possible misimpression, the second sentence 
in the second paragraph on page 3 should read: “ On 
July 16, 1974, prior to the commencement o f the 
evidentiary portion o f the trial, . . . .”  Similarly on page 
4, the Summary o f Argument should begin: “ Prior to 
the commencement o f the evidentiary portion of 
petitioner’s first trial,

Respectfully submitted,

CONRAD KELLENBERG
JOSEPH P. BAUER

Notre Dame Law School 
Notre Dame, Indiana 46556

108 Court Appointed Co-counsel
fo r  Petitioner



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