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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

Plaintiffs-Appellants,

Defendants-Appellees.

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

SUPPLEMENTAL BRIEF FOR APPELLANTS

GABRIELLE MCDONALD 
McDonald & McDonald

1834 Southmore Boulevard 
Houston, Texas

JACK GREENBERG 
JOHNNY J. BUTLER 
ERIC SCHNAPPER

No. 73-1772

BOB S. PETTERWAY, et al.,

THE VETERANS ADMINISTRATION HOSPITAL 
Houston, Texas, et al.,

10 Columbus Circle
New York, New York 10019

Attorneys for Plaintiffs-Appellants





IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 73-1772

BOB S. PETTERWAY, et al.,
Plaintiffs-Appellants,

-v-
THE VETERANS ADMINISTRATION HOSPITAL, 

Houston, Texas, et al.,
Defendants-Appellees.

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

SUPPLEMENTAL BRIEF FOR APPELLANTS

Introduction
At oral argument on November 5, 1973, Appellants were 

asked from the bench to file a supplemental brief dealing with 
three inter-related questions: (1) What is the relevance to
this case of ChiriacQ v. United States, 339 F-2d 588 (5th Cir. 
1964) ? (2) Does the fact that Appellant exhausted his adminis­
trative remedies give rise to any additional basis for jurisdic­
tion? (3) Are Appellants entitled to a plenary de novo hearing 
or some more limited type of review of the•administrative deter­
minations in this case?



.. . $ f£>



The complaint in the instant case alleges that the 
District Court had jurisdiction under 28 U.S.C. § 1343 to 
enforce 42 U.S.C. §§ 1981 and 1983 and certain constitutional 
provisions, and under 28 U.S.C. §§ 2201 and 2202 to issue a 
declaratory judgment. Appendix, p. la. On a motion to dismiss, 
this Court must of course consider whether any facts which might 
be proved under the complaint would constitute a claim for which 
relief could be granted. Since a plaintiff is entitled as of 
right to amend his complaint at any time to correct defective 
allegations of jurisdiction, 28 U.S.C. § 1653, the instant com­
plaint cannot be dismissed if there is any basis for jurisdic­
tion whether or not alleged in the original complaint. The 
established practice of the courts of appeals in situations such 
as this is to consider all possible bases of jurisdiction, re­
gardless of whether raised in the pleadings. See e.g.
Jones v. Freeman, 400 F.2d 383 (8th Cir. 1968); Kaufman v. 
Western Union Telegraph Co., 224 F.2d 723 (5th Cir. 1955).

Applicability of Chiriaco
Chiriaco v. United States, 339 F.2d 588 (5th Cir. 1964) 

involved, not a claim of racial discrimination, but an attempt 
to obtain judicial intervention into the plethora of mundane 
personnel decisions made by the federal government. The plain­
tiff, a former employee of the Tennessee Valley Authority, had 
been dismissed for leaving his job without permission and for 
tardiness. Plaintiff sued for reinstatement, claiming the 
government had erred when it concluded his conduct was such as

-2-





to justify dismissal.
Both the district court and this Court concluded that 

Chiriaco's complaint should be dismissed because of laches, since 
he had not commenced that action until 24 months after his admin­
istrative remedies were exhausted. 339 F.2d at 589; 235 F.Supp. 
850, 853 (N.D. Ala. 1963). Both courts also pointed out that, 
had the action not been barred by laches, the standard of judi­
cial review would have been extremely narrow;

No departure from the required 
standard of procedural due process 
appears, and the scope of judicial 
review in a matter of this kind is 
limited to the determination of that 
questionMoreover, as the District 
Court concluded, even if the merits 
are considered, the terminiation of 
appellant was based upon a substantial 
ground in view of his leaving his job 
without permission; therefore the 
action of the TVA toward him was not 
arbitrary or capricious. It is not 
the function of the court to review 
the wisdom or good judgment of the 
governmental department head in exer­
cising his discretion in matters of 
employee removal and discipline.

339 Fed, 2d at 590.
The rationale underlying Chiriaco is clear. The plain­

tiff there did not challenge the good faith or motives of those
who had fired him, nor did he allege any systematic unlawful 

,urgedpractice. Her, rather, that the federal courts substitute their 
judgment in a particular and entirely mundane case for the judg­
ment of the federal government's professional personnel experts. 
No policies of any public import were raised by the question of 
whether Chiriaco had left his job without permission, or whether 
such a departure was grounds for dismissal.

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The instant case could not be more different from 
that in Chiriaco. The complaint alleges, not mere error by 
the defendants, but deliberate and systematic racial discrimi- 
nation. Prevention of such discrimination is of preeminent 
public importance; racial discrimination in federal employment 
is condemned by the Fifth Amendment to the Constitution, by 
several federal statutes, 42 U.S.C. §§ 1981, 1983, 5 U.S.C.
§ 7151, Title VII of the Civil Rights Act of 1964, and by 
a series of Executive Orders. E.O. 11478 (1969); E.O. 11846 
(1965). The problem of racial discrimination in employment 
is not one on which the named defendants can claim unique 
expertise; the problem is far removed from ordinary personnel 
matters, and it is one in which the federal courts have ac­
quired experience and expertise since 1965 in litigation 
under Title VII and in litigation against state and local 
governments under 42 U.S.C. §§ 1981 and 1983.

Unlike Chiriaco the instant case does challenge the 
good faith of the named defendants. It is of no moment that 
a substantial ground might exist for a particular decision when 
the complaint alleges that such was not the actual motive of 
the defendants. In Chiriaco the claim was merely that the govern­
ment's conduct was arbitrary and capricious; to such a charge 
the existence of a reasonable basis for the action was an adequate 
defense. But when racial prejudice is alleged, a far more searching 
inquiry is required. Similarly when a government practice has the 
effect of discrminating on the basis of race, the federal courts 
must inquire whether that practice is justified in. fact, and 
cannot defer to any claimed expertise of the government official.

4-





See Chance v. Board of Examiners, 458 F.2d 1167 (2d Cir. 1972).
Where, unlike Chiriaco, a question of racial discri­

mination is involved, it would be improper for the courts to
give substantial, let alone conclusive, weight to the outcome

y-
of any administrative proceedings. Prior to 1972 the most 
common procedure used . by federal employees claiming racial 
discrimination was to invoke the administrative remedies es­
tablished by Executive Order and the Civil Service Commission. 
After examining the results of this appeal procedure. Congress 
concluded in 1972 that it was extremely unreliable in race cases 
and had to be augmented by direct scrutiny by the federal courts 
See Section 717, Title VII of the 1964 Civil RightsAct. The 
House Report recommending new federal legislation, ultimately 
enacted as Section 717, concluded:

Under the [existing] procedure, 
effective July 1, 1969, the agency 
is still responsible for investigating 
and judging itself . . . Although 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 action.

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

Testimony reflected a general lack of 
confidence in the effectiveness of the com­
plaint 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 Commis­
sion for fear that it will only result in 
antagonizing their supervisors and impair­
ing any hope of future advancement.

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.



Aside from the inherent structural 
defects the Civil Service Commission 
has been plagued by a general lack of 
expertise in recognizing and isolating 
the various forms of discrimination which 
exist in the system. The revised direc­
tives to Federal agencies which the Civil 
Service Commission has issued are inade­
quate 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 procedures it has promul­
gated may actually operate to the disadvantage 
of minorities and women in systemic fashion.

H. Rep. No. 92-238, 92nd Cong., 1st Ses. 24 (1971). See also
Legislative History of the Equal employment Opportunity Act of
1972. (Hereinafter "Legislative History"), 270, 271, 423, 1726
(1972).

The unique problems posed by racial discrimination in 
federal employment requires that, when such matters come before 
a federal court, the factual and legal issues be resolved by 
the de novo after a plenary hearing on the merits. The standard 
of review announced in Chiriaco, which is tantamount to a com­
plete refusal to review on the merits the challenged 
action or practices, may be appropriate for ordinary personnel 
questions, but cannot be applied to a case such as this.

Section 717 of the 1964 Civil Rights Act
When plaintiff initiated administrative proceedings 

on January 15, 1970, regarding his allegation of racial discri­
mination, Title VII of the 1964 Civil Rights Act did not apply 
to discrimination by the federal government. After plaintiff 
had exhausted his administrative remedies,'but before the instant 
case was filed on July 12, 1972, Title VII was amended on March 24, 1972

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so as to include discrimination by the federal government. 
Plaintiffs initially believed that the amendment to Title VII, 
Section 717, did not apply in the particular circumstances of 
this case. Brief for Appellants, pp. 8, 21, 23. Upon recon-y
sideration, and in the light of the questions posed by the Court 
at oral arguments, Appellants have concluded that Section 717 
does indeed apply to the instant case.

Since United States v. Schooner Peggy the Supreme 
Court has recognized that "if subsequent to the judgment, and 
before the decision ofthe appellate court, a law intervenes 
and positively changes the rule which governs, the law must 
be obeyed, or its obligation denied." 5 U.S. (1 Cranch) 103,
306,(1801). The Supreme Court has applied on appeal intervening 
changes in the law under a wide variety of circumstances. In 
Thorpe v. Housing Authority of Durham, 393 U.S. 268 (1969),
after the plaintiff public housing authority had won an eviction 
order in state courts, the Department of Housing and Urban Develop­
ment altered the procedural prerequisites to such evictions. The 
Supreme Court held that the defendant could not be evicted unless 
the new procedures were followed. "The general rule . . .  is 
that an appellate court must apply the law in effect at the time 
it renders its decision." 393 U.S. at 281. In United States v. 
Alabama, 362 U.S. 602 (1960), the district court dismissed an 
action brought by the United States under the 1957 Civil Rights 
Act against the state of Alabama on the ground that the State 
could not be sued under that statute. While the case was pending 
on appeal Congress passed the 1960 Civil Rights Act expressly 
authorizing suits against a state, and the Supreme Court applied 
the new statute. "Under familiar principles, the case must be

-7-





decided on the basis of law now controlling, and the [new 
provisions] are applicable to this litigation." 362 U.S. at 
604. In Ziffin v. United States, after a company seeking per-K
mission to operate as a contract carrier had filed its appli­
cation with the Interstate Commerce Commission, the Interstate 
Commerce Act was amended to bar such operation by an applicant 
who was controlled by a common carrier serving the same territory. 
The Supreme Court upheld the application of the new law to the 
pending request. "A change in the law between a nisi prius and 
an appellate decision requires the appellate court to apply the 
changed law. A fortiori, a change of law pending an administra­
tive hearing must be followed in relation to permission for 
future acts." 318 U.S. 73, 78 (1943). See also Vanderbark v. 
Owens-Illinois Glass Company, 311 U.S. 538 (1941); Carpenter v. 
Wabash Railway Co., 309 U.S. 23, 27 (1940), and cases cited; 
American Steel Foundries v. Tri-City Cent. Trades Council, 257 
U.S. 184, 201 (1921); Reynolds v. United States, 292 443, 449 (1934)

This general rule is particularly appropriate here, 
for Section 717 did not alter the substantive obligations of 
the federal government, but merely altered the procedures by 
which those obligations could be enforced. It would be incongruous 
in the extreme if, more than 19 months after Congress repudiated 
the doctrine of federal sovereign immunity in cases of this sort, 
the Veterans Administration were to be allowed to prevent any 
judicial relief against discrimination by that agency by asserting 
that very defense rejected by Congress.

Section 717 (c) provides;
"(c) Within thirty days of receipt of 

final action taken by a department, agency, 
or unit referred to in subsection 717 (a), or

A



.

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by the Civil Service Commission upon an 
appeal from a decision or order of such 
department, agency, or unit on a com­
plaint 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 . . .  an employee or 
applicant for employment, if aggrieved by 
the final disposition of his complaint,
. . . may file a civil action as provided 
in section 706, in which civil action the 
head of the department, agency, or unit, 
as appropriate, shall be the defendant.

Appellants maintain that the 30 day filing requirement is
inapplicable to any case in which final administrative action
was taken before March 24, 1972, and such cases may be filed
under Section 717 (c) so long as they are not barred by laches.

If the 30 day filing requirement were applicable, 
appellant would have had to commence an action under Section 717 
by October 16, 1971, 30 days after final administrative action 
in this case. Yet on or before that date it was impossible to 
file an action pursuant to Section 717, for that section had 
not been enacted and was not enacted until 5 months later on 
March 24, 1972. Had Appellant delayed commencing his adminis­
trative proceedings, final action might not have occurred until 
after Section 717 was enacted. But Congress cannot have intended 
to penalize federal employees, like Appellant, who sought admin­
istrative relief promptly, while rewarding those who made no 
effort to enforce their rights for months or years. The far 
more plausible construction of the 30 day requirement is that 
it was intended to cover only those capable of complying with it, 
and that the time limit applicable to cases such as this should 
be dictated by the doctrine of laches. Compare Chiriaco v.
United States, 339 F.2d 588 (5th Cir. 1964). None of the

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M jvow in

■



defendants, of course, have asserted that Appellants were guilty 
of laches.

in litigation under Section 717, the District Court 
is required to afford a plenary de novo hearing. As was noted, 
supra, Section 717 was enacted in part because Congress believed 
federal administrative proceedings could not be relied on to 
afford a fair hearing. Section 717 therefore provided that any 
action thereunder was to be heard "as provided in Section 706," 
which deals with civil actions in cases of private employment 
discrimination. It is well established in litigation under 
Section 706 that, regardless of the outcome of prior state or 
federal administrative proceedings, both parties are entitled 
to a trial de novo in federal court. McDonnell Douglas Corp. v.
Green, ____U.S.____ , 41 L.W. 4651 (May 14, 1973); Robinson v.
•Lorillard Corp., 444 F.2d 791, 800 (4th Cir. 1971); Beverly v.. 
Lone Star Lead Construction Corp., 437 F.2d 1136, 1141 (5th Cir. 
1971); Flowers v. Local 6, Laborers Int11 Union of North America, 
431 F .2d 205, 208 (7th Cir. 1970); Fekete v. United States Steel 
Corp.. 424 F .2d 331, 336 (4th Cir. 1970). During the debates 
on Section 717 Senator Cranston explained that under it "Federal 
District Court review . . .  would be a trial de novo." See Cong. 
Rec., daily ed., January 23, 1973, S.1219.

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v, - , . ......... ..... ,



Mandamus
Since at least Marbury v. Madison, 5 U.S. (1 Cranch) 137 

(1803) , it has*'been clear that the federal courts have inherent 
authority to grant writs of mandamus to compel government 
officials to perform ministerial duties. See 28 U.S.C. § 1651. 
In such cases the doctrine of sovereign immunity is understood 
to be inapplicable. Clackamas County, Ore, v. McKay, 219 F.
2d 479, 488-496 (D.C.Cir. 1954), vacated as moot 349 U.S.
909 (1955).

The duty to treat all federal employees equally, without 
regard to race or color, is a ministerial one. The duty to 
so act is established by the Fifth Amendment, Executive Order 
11478 (1969), and section 717(a) of the Civil Rights Act of 
1964. No federal official has any discretion to discriminate 
on the basis of race; the Constitution, the Congress, and the 
President through executive order have all withdrawn any such 
discretion and subjected all officials to an absolute and 
inescapable duty.

Only last year this Court held that the remedy of 
mandamus was available to remedy discrimination on the basis 
of race. In Beale v. Blount, 461 F.2d 1133 (5th Cir. 1972) 
this Court stated:

Traditionally, the procedural 
avenue to reinstatement, for an ex-em- 
ployee of the federal government claim­
ing to be the victim of improper dis­
charge has been a petition for manda­
tory injunction or writ of mandamus 
directed to the head of the agency con­
cerned commanding the re-employment of

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the petitioner. Schwartz and Jacoby.
Litigation with the Federal Government 
(1970), Chapter XVI. The exhaustion 
of available administrative remedies 
was a prerequisite to maintenance of such 
a mandamus action . . . The remedy of 
mandamus directed against an agency has 
been regarded as an exception to the doctrine 
that suits may not be maintained against the 
United States without its consent.. . .  In 
1962, Congress broadened the availability 
of the mandamus remedy by investing the 
district courts generally with jurisdiction 
to issue the writ which eliminated the 
previous requirement that reinstatement 
suits be maintained only in the United 
States District Court for the District of 
Columbia . . . Title 28 U.S.C. Section
1361.

461 F .2d at 1137. In Beale mandamus was denied because the 
plaintiff had not exhausted his administrative remedies. 461 
F .2d at 1137-1140. In the instant case, however, Appellant 
has in fact exhausted all administrative remedies.

The remedy of mandamus is available to force compliance 
with any ministerial duty. In Beale the plaintiff sought only 
reinstatement. 461 F.2d at 1135, n.2. Clackamas County, 
on which this Court relied^ involved the expenditure of public 
funds, since such expenditure was required by law. 219 U.S. 
at 481-488.

For the reason set out supra regarding Chiriaco v .
United States, the district court in a mandamus proceeding must 
make its own independent decision as to questions of law and 
fact. The issue in such a proceeding is whether the government 
through its officials is acting in compliance with law, and 
mandamus is never sought or needed unless the defendants and 
their superiors believe that the disputed conduct is lawful.
The purpose of requiring that a plaintiff seeking mandamus
exhaust his administrative remedies is solely to avoid unnec-

-12-





essary judicial intervention when the relief sought might 
be granted by such administrative action. Beale v. Blount 
461 F .2d 1133, 1139; Hadnott v. Laird, 463 F.2d 304 (D.C.
Cir. 1972). To require a plaintiff to exhaust his adminis­
trative remedies, and then to declare the result of those 
proceedings conclusive or presumed to be correct, would 
render mandamus unavailable in virtually every case. The 
very nature of mandamus requires, on the contrary, that the 
district court from which the writ is sought consider all 
questions of law and fact cie novo.

CONCLUSION
For the foregoing reasons the judgment of the District 

Court should be reversed and this case remanded for de novo 
hearing on the allegations of plaintiffs' complaint.

Respectfully submitted,

GABRIELLE MCDONALD 
McDonald & McDonald 
1834 Southmore Boulevard 
Houston, Texas 77004

JACK GREENBERG 
JOHNNY J. BUTLER 
ERIC SCHNAPPER

10 Columbus Circle
New York, New York 10019

Attorneys for Plaintiffs-Appellants





IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

No. 73-2628

CLARENCE BROWN,
Plaintiff-Appellant,

-v-
GENERAL SERVICES ADMINISTRATION, et al.,

Defendants-Appellees.

Appeal From The United States District Court 
For The Southern District of New York

BRIEF FOR APPELLANT

JEFF GREENUP
Greenup & Miller 
200 West 135th Street 
Suite 218
New York, New York 10030

JACK GREENBERG 
JAMES M. NABRIT, III 
JOHNNY J. BUTLER 
JOSEPH P. HUDSON 
ERIC SCHNAPPER

10 Columbus Circle
New York, New York 10019

Attorneys for Plaintiff-Appellant





TABLE OF CONTENTS

Statement of Issues Presented for Review .................  1
Statement of the Case .....................................  2
Statement of the Facts ....................................  3

ARGUMENT:
I. Introduction ..................................... 5

II. Jurisdiction Over This Action Is Conferred
By 28 U.S.C. § 1361 .............................  13

III. Jurisdiction Over This Action Is Conferred
By The Administrative Procedure Act ............. 21

IV. Jurisdiction Over Plaintiff's Claims For 
Back Pay And Damages Is Conferred By The
Tucker Act, 28 U.S.C. § 1346 .................... 28

V. Jurisdiction Over This Action Is Conferred 
By The 1866 Civil Rights Act, 42 U.S.C.
§ 1981 And 28 U.S.C. § 1343(4) ..................  36

(a) The 1866 Civil Rights Act, 42 U.S.C.
§ 1981, forbids Discrimination In
Employment By The United States........... 36

(b) The 1866 Civil Rights Act Waived 
Sovereign Immunity And Created
Jurisdiction Over This Action.............  46

VI. This Action Against The Individual Defendants 
Does Not Constitute A Suit Against The United 
States .................................... 54

CONCLUSION ...........................................  61

Page

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TABLE OF AUTHORITIES

CASES

Abbott Laboratories v. Gardner, 387 U.S. 136
(1967) ..............................................  22

Adams v. Witmer, 271 F.2d 29 (9th Cir. 1959) ........  25
Alcoa S. S. Co. v. United States, 80 F. Supp. 158

(S.D.N.Y. 1948) ....................................  30
Allison v. United States, 451 F.2d 1035 (Ct. Cl.

1971)    33
American Stevedore, Inc. v. Porrello, 330 U.S.

446 (1947) .......................................... 52
Arrington v. Massachusetts Bay Transportation

Authority, 306 F. Supp. 1355 (D. Mass. 1969) ......  36
Arrow Meat Company v. Freeman, 261 F. Supp. 622

(D. Ore. 1966)   24
Aycock-Lindsey Corporation v. United States, 171 
~F.2d 518 (5th Cir. 1948)   30
Beale v. Blount, 461 F.2d 1133 (5th Cir. 1972) ... 16,17,19,33
Bell v. Hood, 327 U.S. 678 (1946)   62
Beers v. Federal Security Administrator, 172 F.2d

34 (2nd Cir. 1949) .................................  30
Bennett v. Gravelle, 323 F. Supp. 203 (D. Md. 1971)... 37,61
Berk v. Laird, 429 F.2d 302 (2nd Cir. 1970) .........  58
Bivins v. Six Unknown Federal Narcotics Agents,
403 U.S. 388 (1971)   29

Blanc v. United States, 244 F.2d 708 (2nd Cir.
1957)   35

Board of Trustees of Arkansas A & M College v.
Davis, 396 F.2d 730 (8th Cir. 1971) ................ 59

Bolling v. Sharpe, 347 U.S. 497 (1954) ........  14,28,56,60

Page

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Table of Authorities (Continued)

Boudreau v. Baton Rouge Marine Contracting, 437 F.2d
1011 (5th Cir. 1971) .................................  37

Brady v. Bristol Myers, 452 F.2d 621 (8th Cir.
1972)   37

Brooks v. United States, 337 U.S. 49 (1949) ........ . 33
Brown v. Gaston County Dyeing Machine Co., 437 F.2d

(4th Cir. 1972), cert. denied, 93 S.Ct. 319 (1972).... 37
Cappadora v. Celebrezze, 356 F.2d 1 (2d Cir. 1966) ....  24
Carriso v. United States, 106 F.2d 707 (9th Cir.

1939) .................................................  29
Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971) .....  36,40,61
Cartright v. Rensor, 325 F. Supp. 797 (E.D.N.Y.

1971)   60
Castro v. Beecher, 452 F .2d 315 (8th Cir. 1971) .......  61
Chambers v. United States, 451 F.2d 1045 (Ct. Cl.

1971)       33
Chicago v. United States, 396 U.S. 162 (1969)   23
Chiriaco v. United States, 339 F.2d 588 (5th Cir.

1964) .................................................  26
Citizens Committee for Hudson Valley v. Volpe, 425

F.2d 97 (2d Cir. 1970), cert, denied, 400 U.S.
949 (1970)   24

Citizens to Preserve Overton Park v. Volpe, 401
U.S. 402 (1971)   22

City of New York v. Ruckelshaus, 358 F. Supp. 669
(D.D.C. 1973) ......................................... 18

Clackamas County, Oregon v. Mackay, 219 F.2d 479
(D.C. Cir. 1954)   19

Clay v. United States 210 F .2d 696 (D.D.C. 1954)   35
Compagnie General Transatlantique v. United States,

21 F .2d 465 (S.D.N.Y. 1927), aff'd 26 F .2d 195 ......  29,31

Page

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Table of Authorities (Continued)

Page
Copeland v. Mead Corp., 51 F.R.D. 266 (N.D. Ga.

1970)   37
Davis v. Washington, 4 EPD 1 7926 (D.D.C. 1972) ......  14
District of Columbia v. Carter, 409 U.S. 418 (1973).. 37,38,39

42,43
Dugan v. Rank, 372 U.S. 609 (1963) .................. 25,56,58
Estrada v. Ahiens, 296 F.2d 690 (5th Cir. 1961) ....  24
Ex parte Young, 209 U.S. 123 (1908) ................. 55,57
Faruk v. Rogers, 5 EPD f 8015 (D.D.C. 1972) ........  14
Garfield v. United States ex rel. Goldsby, 211 U.S.

249 (1908).......................................... 17
Gibson v. Mississippi, 162 U.S. 595 (1896) .........  14
Glover v. Daniel, 434 F.2d 617 (5th Cir. 1970) .....  36
Gnotta v. United States, 415 F.2d 1271 (8th Cir.

1969), cert, denied, 397 U.S. 934 (1970)... 9,10,25,31,32,33
Griffin v. County School Board of Prince Edward

County, 377 U.S. 218 (1964) ......................... 59
Guerra v. Manchester Terminal Corp., 350 F. Supp.

529 (S.D. Tex. 1972) .............................  37
Hackett v. McGuire Brothers, Inc., 445 F.2d 442

(3rd Cir. 1971) .................................... 37
Harkless v. Sweeny Independent School District,

427 F . 2d 319 (5th Cir. 1970) .......................  60
Harris v. Kaine, 352 F. Supp. 769 (S.D.N.Y.

1972)    24
Henderson v. Defense Contract Administration, 72

Civ. 5420 (S.D.N.Y.) .............................  1,14
Hill v. United States, 40 F.2d 441 (1st. Cir. 1889).. 31
Honda v. Clark, 386 U.S. 484 (1967) ................. 52,53

xv



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Hurd v. Hodge, 334 U.S. 74 (1948) ....................  38,39
Indian Trading v. United States, 350 U.S. 61 (1955) .. 51
In re Castellone, 148 F. Supp. 676 (N.D. Ohio 1957)... 26
Jackson v. United States, 129 F. Supp. 537 (D. Utah

1955) ...............................................  34
James v.Ogilvie, 310 F. Supp. 661 (N.D. 111. 1970).... 37
Jarrett v. Resor, 426 F.2d 213 (9th Cir. 1970) ......  13
Jenkins v. General Motors Corp., 475 F.2d 764 (5th

Cir. 1973) .......................................... 37
Johanson v. United States, 343 U.S. 427 (1951) ......  52
Johnson v. Cain, 5 EPD 5 8509 (D. Del. 1973)   36,61
Johnson v. Goodyear Tire & Rubber Co., 349 F. Supp.

3 (S.D. Tex. 1972) .................................  37
Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) .... 41
Jones v. United States, 127 F. Supp. 31 (E.D.N.C.

1954) ...............................................  31
Keifer & Keifer v. Reconstruction Finance Corp., 306

U.S. 381 (1938) ....................................  52,53
Kletschka v. Driver, 411 F .2d 436 (2d Cir. 1969) ....  24
Lanashire Shipping Co. v. United States, 4 F. Supp.

544 (S.D.N.Y. 1933) ................................  30
Larson v. Domestic and Foreign Commerce Corp., 337

U.S. 643 (1949)   56,58,60
Law v. United States, 18 F. Supp. 42 (D. Mass. 1937).. 30
Lazard v. Boeing Co., 322 F. Supp. 343 (D. La. 1971).. 37
Leonard v. Mitchell, 473 F.2d 709 (2d Cir. 1973).....  13,57
Lloyds' London v. Blair, 262 F .2d 211 (10th Cir.

1958)   28

Table of Authorities (Continued)
Page

v









Table of Authorities (Continued)

Page
London v. Florida Department of Health, 3 EPD

5 8018 (N.D. Fla. 1970) ..........................  36
Long v. Ford Motor Co., 352 F. Supp. 135 (E.D.

Mich. 1972) ......................................  37
Malone v. Baldwin, 369 U.S. 643 (1962) ............  56,58
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).. 13,19,54,62
McMahon v. United States, 342 U.S. 523 (1951) .....  52
McQuery v. Laird, 449 F.2d 608 (10th Cir. 1971) .... 19
Miguel v. McCarl, 291 U.S. 442 (1934) ........... . 17
Mills v. Board of Education of Anne Arundel County,

30 F. Supp. (D. Md. 1938) ........................  36
Minnesota v. United States, 305 U.S. 382 (1939) .... 47,48
Morrow v. Crisler, 3 EPD K 8119 (S.D. Miss. 1971)... 36,61
N.A.A.C.P. v. Allen, 340 F. Supp. 703 (M.D. Ala.

1972)   61
National Helium Corporation v. Morton, 326 F. Supp.

151 (D. Kan. 1971), aff'd 455 F.2d 650, Lombard 
Corporation v. Resoc, 321 F. Supp. 687 (D.D.C.

1970)   25
Newman v. Piggie Park Enterprises, 390 U.S. 900

(1968)   59
Nixon v. Harris, 325 F. Supp. 28 (D. Colo. 1971).... 25
NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1

(1957) ............................................ 60
Northwest Residents Association v. Department of 

Housing and Urban Development, 325 F. Supp. 65 
(E.D. Wis. 1971) ..............................  24

Norwalk CORE v. Norwalk Redevelopment Agency, 395
F . 2d 920 (2d Cir. 1968) ........................... 23,24

Palmer v. Rogers, 5 EPD f 8822 (D.D.C. 1973)   33,60

vi





Taole of Authorities (Continued)
Page

Penn v. Schlesinger (No. 72-3684, 5th Cir.) ........  17,19
43,44,45,53,60

Perry v. United States, 308 F. Supp. 245 (D. Colo. 1970), 
aff'd 442 F . 2d (10th Cir. 1971) ........... ........ 30

Pettit v. United States, No. 253-72 (Ct. Cl. 1973) ... 33
Philadelphia Co. v. Stimson, 223 U.S. 605 (1912) ....  55
Rambo v. United States, 145 F.2d 670 (5th Cir. 1944),

cert, denied, 324 U.S. 848 .........................  35
Rayonier v. United States, 352 U.S. 315 (1957) ......  53
Rice v. Chrysler Corp., 327 F. Supp. 80 (E.D. Mich.

1971)   37
Road Review League v. Boyd, 280 F. Supp. 650

(S.D.N.Y. 1972) ..................................... 24
Roberts v. United States ex rel. Valentine, 176

U.S. 221 (1900)   17
Ross Packing Co. v. United States, 42 F. Supp. 932

(E.D. Wash. 1942)(National Labor Relations Act)....  30,31
Rural Electrification Administration v. Northern 

States Power Co., 373 F .2d 686 (8th Cir. 1967), 
cert, denied, 387 U.S. 945 .........................  13

Rusk v. Cort, 396 U.S. 367 (1962) .................... 23
Sanders v. Dobbs Houses, Inc. 431 F .2d 1097 (5th Cir.

1970), cert, denied, 401 U.S. 948 (1971) ..........  37
Scanwell Laboratories, Inc. v. Shaffer, 424 F .2d

859 (D.C. Cir. 1970) ...........................  24,25,26
Schwartz v. United States, 191 F .2d 618 (4th

Cir. 1951)   12
Schicker v. United States, 346 F. Supp. 417 (D.

Conn. 1972), modified on other grounds sub nom.
Schicker v. Romney, 474 F.2d 309 (2d Cir. 1973)....  24

- vii -



’

'



Table of Authorities (Continued)

Schroede Nursing Care, Inc. v. Mutual of Omaha,
Inc., Co., 311 F. Supp. 405 (E.D. Wis. 1970)......  25

Securities and Exchange Commission v. Wall Street 
Transcript Corp., 294 F. Supp. 298 (S.D.N.Y.
1968)   26

Settle v. E.E.O.C., 5 EPD 5 8100 (S.D. Tex. 1972)___  59
Simons v. Vinson, 394 F.2d 732 (5th Cir. 1968)......  62
Sinclair Nav. Co. v. United States, 32 F.2d 90

(5th Cir. 1929) .................................... 30

Smiley v. City of Montgomery, 350 F. Supp. 451
(M.D. Ala. 1972) ..................................  36

Smith v. United States, 458 F .2d 1231 (9th Cir.
1972)   29

Spanish Royal Mail Line Agency, Inc. v. United
States, 45 F.2d 404 (S.D.N.Y. 1930) ................  29

Spencer v. Richardson, 6 EPD 5 8906 (D.D.C. 1973)___  53
Spillway Marina, Inc. v. United States, 445

F . 2d 876 (10th Cir. 1971) ......................... 28
Strain v. Philpott, 4 EPD 5 7885 (M.D. Ala.

1971)   36,60
Suel v. Addington, 5 EPD f 8043 (9th Cir. 1972).....  61
Sultzbach Clothing Co. v. United States, 10 F.2d

263 (W.D.N.Y. 1925) ............................  30
Sutcliffe Storage & Warehouse Co. v. United States,

162 F . 2d 849 (1st. Cir. 1947) ..................... 31
Thorn v. Richardson, 4 EPD 5 7630 (W.D. Wash. 1971).. 17
Tillman v. Wheaton Haven Recreation Asso., 35 L.Ed.

2d 403 (1973) .....................................  39
Toilet Goods Association v. Gardner, 360 F.2d 677 

(2d Cir. 1966), aff'd 387 U.S. 158

Page

- viii -

57



r.» ■ '■■■■

■ > -

r- '•



Union Trust Co. v. United States, 113 F. Supp.
80 (D.D.C. 1953), aff'd in part 221 F.2d 62,
cert, denied, 350 U.S. 911 ........................  28

United States v. City of Kodiak, 132 F. Supp.
574 (D. Ct. Alaska 1955) ..........................  42

United States v. District Court, 401 U.S. 527
(1971) .............................................  52

United States v. Emery, Bird, Thayer R.R. Co.,
237 U.S. 28 (1915)   31

United States ex rel. Parish v. Macveagh, 214
U.S. 124 (1909) .................................... 17

United States v. Hellard, 322 U.S. 363 (1944)   48
United States v. Hvoslef, 237 U.S. 1 (1915)   29
United States v. Johnson, 153 F.2d 846 (9th Cir.

1946) ..............................................  31
United States v. Muniz, 374 U.S. 150 (1963)   52
United States v. Shaw, 309 U.S. 495 (1939) .......... 53
United States v. Sherwood, 312 U.S. 584 (1941) ...... 52
United States v. Yellow Cab Co., 340 U.S. 543

(1951) ........................................... 28,52,53
Warren v. United States, 340 U.S. 523 (1951) .......  52
Wasson v. Trowbridge, 382 F.2d 807 (2d Cir. 1967).... 56
Waters v. Wisconsin Steel Works, 427 F .2d 476 (7th

Cir. 1970), cert, denied, 400 U.S. 911 (1970)........ 37
Watkins v. Washington, 3 EPD f 8291 (D.D.C.

1973)   60
West v. Board of Education of Prince George's

County, 16 5 F. Supp. 38 2 (D. Md. 1958) ...........  36
Williams v. United States, 405 F.2d 951 (9th Cir.
1969)   12

Table of Authorities (Continued)
Page

ix



1 it *

■ k  .*

■ ' , .. -< ‘ - - ■ • “f « • ■

-

g :g. . • t ;  1; %: If 4; .

s g  V  g



Table of Authorities (Continued)
Page

Work v. United States ex rel. Lynn, 266 U-S.
161 (1924) ........................................ 17

Young v. International Tel. & Tel. Co., 438 F.2d
737 (3rd. Cir. 1971) .............................  37

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.
579 (1952)   56

CONSTITUTIONAL PROVISIONS

United States Constitution, Article I, Section 9 ... 29
United States Constitution, Fourth Amendment ......  29
United States Constitution, Fifth 13,22,23
Amendment ....................................  28,29,49,60

United States Constitution, Thirteenth
Amendment ......................................... 40

United States Constitution, Fourteenth
Amendment .......................................... 40,49

STATUTES AND REGULATIONS

5 U.S.C. § 701 ....................................... 23
5 U.S.C. § 702 ....................................... 21
5 U.S.C. § 703 ....................................... 21
5 U.S.C. § 706 ....................................... 21,22

28 U.S.C. § 1331 ....................................  29,60
28 U.S.C. § 1343 ................................  46,47,60
28 U.S.C. § 1346 ................................  12,28-35
28 U.S.C. § 1331 ....................................  60
28 U.S.C. § 1361 ..............................  12,13-20,60

x





Statutes and Regulations (Continued)
Page

28 U.S.C. § 1491 
28 U.S.C. § 1653

42 U.S.C. § 1981

42 U.S.C. § 1982 
42 U.S.C. § 1983 
42 U.S.C. § 7151

.. 8,12,14,17,22
23,26,29,36-53,60
.....  39,40

8,20,37
14,22,23,60

14 Stat. 28 § 5 42

14 Stat. 29 § 7 42

39 Stat. 880 31

43 Stat. 155 31

Civil Rights Act of 1866 
Civil Rights Act of 1870 
Civil Rights Act of 1871 
Civil Rights Act of 1964

8,12,14,36,40,46
....  8,37,38
....  8,38
1,5,6,7,11,14,26

Tucker Act ......
Fugitive Slave Act

30,31,33
41

5 C.F.R. § 713 . 15,16,18,19
22,23,31,32,60



TC’’



Page

EXECUTIVE ORDERS

E.O. 9980, July 26, 1948 ..............................  15
E.O. 10590, January 18, 1955 .......................... 15
E.O. 10925, March 6, 1961 ........................  15
E.O. 11246, September 24, 1965 .........................  15,33
E.O. 11478 .....   7,15,22,23

31,32,33,60

E.O. 11590  .....................................    15

LEGISLATIVE MATERIALS

Hearings Before a Subcommittee of the Senate
Judiciary Committee, 91st Cong., 2d Sess. (1970) ....  11

Hearings Before the Subcommittee on Labor of 
the Senate Committee on Labor and Public
Welfare, 92nd Cong., 1st. Sess. (1971) .............. 11

Hearings Before a Subcommittee of the Senate
Committee on Labor & Public Welfare 92nd Cong.,
1st. Sess. (1971) .... ............................... 9

H. Rep. 1604, 88th Cong., 2d Sess...................... 34
S. Rep. 1390, 88th Cong., 1st. Sess.................... 34
H. Rep. No. 92-238, 92nd Cong., 1st. Sess. 24 
(1971) ................................................  27

S. Rep. No. 92-415, 92nd Cong., 1st. Sess...........  7,14,25

Cong. Globe, 10* b Cong., Is* . ''•«=>«« \ t , ! 7 ......    to
Cong. Globe, 38th Cong., 1st. Sess. 1675 ............ 51
Cong. Globe, 39th Cong., 1st. Sess. 1117 ............ 49

108 Cong. Rec. 18784 ................................  20
110 Cong. Rec. 19766 ................................  34

- xii -





Page

OTHER AUTHORITIES

G. Bentley, History of the Freedmen's Bureau
(1955)   42

M. Farrand, Legislation of Congress for the
Government of the Organized Territories of the
United States (1896) ................................  43

M. King, Lyman Trumbull (1965)   43
E. Pomeroy, The Territories and the United

States (1947) .......................................  43
Schlesinger and Israel, The State of the Union

Messages of the Presidents, v. 2 1060 (1966) .......  50
K. Stampp, The Era of Reconstruction (1965) ..........  42
ten Broek, Equal Under Law (1951) ...................  41,42,48
Byse and Fiucca, "Section 1361 of the Mandamus and
Venue Act of 1962,"81 Harv. L. Rev. 308 (1967) .....  19

Graham, "The Early Anti-Slavery Backgrounds of the
Fourteenth Amendment, 1950 Wis. L. Rev. 47 9 ........  48

Graham, "The Conspiracy Theory of the Fourteenth
Amendment," 47 Yale L.J. 371 (1938) ................. 49

- xiii -





IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

No. 73-2628

CLARENCE BROWN,
Plaintiff-Appellant

-v-
GENERAL SERVICES ADMINISTRATION et al.,

Defendants-Appellees.

Appeal From The United States District Court 
For The Southern District of New York

BRIEF FOR APPELLANT

This is an appeal from an unreported decision 
of Judge MacMahon dismissing the complaint for 
lack of jurisdiction

Statement of Issues Presented For Review
1) Do the United States District Courts have juris- 

disction over an action against the United States or an agency 
thereof alleging racial discrimination in employment?

2) Do the United States District Courts have juris­
diction over an action against federal officials alleging that
they practice or practiced racial discrimination in employment?1/

1/ This appeal does not involve the question of what consideration, 
if any, a district court should give to an administrative finding 
that there was no discrimination. Plaintiff maintains that in this 
action, as in an action under section 717 of the 1964 Civil Rights 
Act, he is entitled to a trial de novo. See Henderson v. Defense 
Contract Administration, 72 Civ. 5420 (S.D.N.Y.) (Opinion dated 
December 31, 1973, slip opinion pp. 8-10.





Statement of The Case

Plaintiff-appellant, Clarence Brown, is an 
employee of Regional Office No. 2 of the General 
Services Administration (hereinafter "GSA"), an agency 
of the Federal Government. On July 15, 1971, appellant, 
who is Black, filed with the GSA Equal Employment Oppor­
tunity office an administrative complaint alleging that 
he had been denied promotion because of his race. On 
March 26, 1973, Brown was informed that the GSA Director 
of Civil Rights for Region 2 had made a final agency decision 
that GSA and its employees had not discriminated against 
appellant. Having thus exhausted his administrative remedies, 
Appellant on May 7, 1973, brought this action in the United 
States District Court for the Southern District of New York 
against GSA and several of its officials. The complaint 
alleged that GSA and Appellant's superiors had repeatedly 
denied him promotion solely because of his race, and sought 
relief including an injunction and an award of back pay.
[A. 1-1]

On August 10, 1973, the Defendants moved to dismiss 
the complaint on the ground that, because of sovereign immunity, 
the District Court lacked subject matter jurisdiction. [A. 3-1] 
Plaintiff moved for leave to file an amended complaint for the 
purpose, inter alia, of adding certain defendants, including 
the United States Civil Service Commission. [A. 9-1] On 
September 27, 1973, the District Court, granted Defendants’ 
motion to dismiss. The District Court's four sentence opinion 
concluded that the court lacked jurisdiction and that the action

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was barred by sovereign immunity. [A. 13-1] Judgment was 
entered on September 28, 1973 [A. 14-1], and Plaintiff's 
notice of appeal was filed on October 22, 1973.

Statement of Facts
The allegations of the complaint, which must be 

accepted as true for purposes of a motion to dismiss for 
lack of jurisdiction, are as follows:

Appellant, Clarence Brown, has been an employee 
of Regional Office No. 2 of the GSA in New York City since 
1957. Appellant has not been promoted in eight years. His 
job classification is now, as it was in 1966, a Communica­
tions Specialist, GS-7, Telecommunications Division, Auto­
mated Data Telecommunication Service.

After his last promotion in 1966, Brown undertook 
Civil Service and college completion training and achieved 
a Communications Specialist, GS-9 eligibility rating on the 
basis of the examination. GS-9 is a supervisory classifi­
cation on a career ladder leading to further advancement, 
higher pay and further training.

Brown was not considered for promotion to GS-9 
in 1969. In December, 1970 Brown was referred for promo­
tion to GS-9 by his supervisors along with two white employees, 
Robert Ownbey and William F. Trost. Brown's seniority, super­
visory experience, training and education were superior to 
that of both white employees. All three were rated "highly 
qualified," but Joseph Daly, Regional Director of Transpor­
tation and Communications Service chose the white employee,



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Trost, for the position. Thereupon, Brown commenced filing 
an administrative complaint of racial discrimination with a 
GSA Equal Employment Opportunity Counsellor. The Counsellor 
advised Brown that additional GS-9 vacancies which he had an 
excellent chance of filling would soon be available. Brown 
also asked his superior Albert Gallo, Chief of Communications 
Division why he had been denied promotion. Gallo explained 
that Brown lacked the requisite "voice" experience.

In reliance upon these representations, Brown dis­
continued further processing of his administrative complaint 
and acquiesed the recommended experience and further training 
as well. In June, 1971 a vacancy for another GS-9 position 
became available. Brown and Ownbey were again referred as 
was another white employee. Brown's seniority, supervisory 
experience, training and education were again superior to that 
of both white employees. Supervisory personnel, however, in­
cluding Gallo and Frank A. Lapalla, recommended Ownbey over 
Brown. Both Brown and Ownbey were rated "highly qualified" 
and the third employee "qualified." Daley chose the white 
employee Ownbey over Brown for promotion.

On July 15, 1971 Brown filed with the GSA Equal 
Employment Opportunity Office a complete administrative com­
plaint of racial discrimination in denial of promotion.
Daley, Gallo and Lapolla gave as their reason for denying 
Brown promotion a purported attitude of uncooperativeness 
reflected in various acts. One such act was Brown's declining 
to perform an uncompensated six month survey after working

-4-



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hours for Gallo. Brown denies that he evinced an un­
cooperative attitude or that the acts so indicate.
Brown was never told of his purported attitude or acts 
at the time the acts were said to have occurred nor in 
December, 1970 when Brown asked Gallo to explain his 
prior denial of promotion. Nor was Brown ever reprimanded 
or disciplined for his purported attitude or acts. Brown's 
purported attitude and acts were mentioned for the first 
time only in July, 1971 after he filed a complaint with 
the GSA Equal Employment Opportunity Office.

Brown alleges that GSA and his supervisors have 
denied him promotion to a supervisory GS-9 position solely 
on the basis of his race and in spite of seniority, ex­
perience, training and education greater than that of the 
white employees promoted over him. That allegation must 
be accepted as true for the purposes of the instant appeal, 
since the District Court dismissed for lack of subject 
matter jurisdiction.

ARGUMENT

I. INTRODUCTION
The issue in this case is not whether Federal 

agencies should enjoy complete immunity from suits alleging 
racial discrimination in employment. Congress has resolved, 
that question in favor of allowing aggrieved federal employees 
to sue in federal court for injunctive relief and back pay.
The 1972 Amendments to Title VII of the 1964 Civil Rights Act 
added a new section 717 expressly waiving sovereign immunity

-5-





and authorizing litigation against federal agencies.
Section 717, however, is not applicable to this

particular case. To bring an action under section 717 an
aggrieved employee must file his complaint within 30 days
of receipt of notice of final action taken by the relevant
agency. In the instant case, plaintiff received such notice
on March 23, 1973, but did not commence this action until

_3/
May 7, 1973, 42 days later.

The issue raised by the instant case is whether, 
apart from section 717, federal employees aggrieved by 
racial discrimination have a cause of action cognizable in

2 / Section 717(c) provides:
"(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 intitial charge with the depart­
ment, agency, or unit or with the Civil Service 
Commission on appeal from a decision or order of 
such department, agency, or unit until such time 
as final action may be taken by a department, agency, 
or unit, an employee or applicant for employment, 
if aggrieved by the final disposition of his com­
plaint, 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, or unit, as appropriate, 
shall be the defendant."

3 / The original administrative complaint was filed on July 15, 
1971. Since plaintiff still has not been promoted, he could 
doubtless file a new administrative complaint now, but that com­
plaint would doubtless be resolved against him. Upon receipt of 
notice of final agency action on such a new complaint, or if final 
action was taken on it for 180 days, plaintiff could presumably 
file a new civil action in the District Court. In such a new 
action, however, plaintiff’s right to back pay would be limited
to the period since July 15, 1971.

-6-





the district courts.
Congress did not intend Section 717 to be the 

exclusive judicial remedy available to federal employees. 
Congress was concerned, rather, to supplement such causes 
of action as might already exist because of its fears that

_4/those causes might well be inadequate. Section 717(e) 
expressly provided that the new provision did not reduce 
the pre-existing responsibility of federal officials and

_5/agencies. The Senate expressly rejected a proposed amend­
ment that would have made Title VII the excluisve remedy

4/ The Senate Committee on Labor and Public Welfare concluded 
that under existing law, ”[i]n 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 have 
also been in doubt." S. Rep. No. 92-415, 92nd Cong., 1st Sess., 
reprinted in Legislative History of the Equal Employment Oppor­
tunity Act of 1972, (hereinafter "Legislative History"), p.425. 
Senator Williams, Chairman of the Committee explained during 
the Senate debates that " [p]reviously, there have been un­
realistically high barriers which prevented or discouraged 
a Federal employee from taking a case to court. This will 
no longer be the case." Id. at 1727.
5 / Nothing contained in this Act shall relieve any Govern­
ment agency or official of its or his primary responsibility 
to assume 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 
opportunity in the Federal Government." The Senate Report 
stated "The Committee would also note that neither the above 
provisions regarding the individual's right to sue under 
Title VII, nor any of the other provisions of this bill, are 
meant to effect existing rights granted under other laws" 
Legislative History, p. 433.

-7-





_ JL/against private discrimination, and the House Report, 
which recommended extending Title VII to cover state and 
local governments, expressly stated that such a remedy

_ Z /would not be exclusive.
This is the latest in a series of cases in which 

the Justice Department and Civil Service Commission have 
maintained in court that, because of sovereign immunity, 
the Federal courts do not have jurisdiction over suits 
to redress discrimination against Federal employees. The

6/ See Id., pp. 1378-1407. Opposition to the amendment 
was led by Senators Javits and Williams, both of whom quoted 
the testimony of Assistant Attorney General David Norman.
"In the Field of civil rights, the Congress has regularly 
insured that there would be a variety of enforcement devices 
to insure that all available resources are brought to bear 
on problems of discrimination . . .  At this juncture, when 
we are all agreed that some improvement in the enforcement 
of Title VII is needed, it would be, in our judgment, unwise 
to diminish in any way the variety of enforcement means avail­
able to deal with the problem of discrimination. The problem 
is widespread and we suggest that all available resources 
should be used in the effort to correct it. Id. at 1399—1400, 
1404. Senator Williams noted in particular that one of the 
rights which would be cut off by the proposed amendment was,
42 U.S.C. § 1981, which created "the right of individuals to 
bring suits in Federal courts to redress individual acts of 
discrimination, including employment discrimination.

7/ " m  establishing the applicability of Title VII to 
State and local employees, the Committee wishes to emphasize 
that the individual's right to file a civil action in his 
own behalf, pursuant to the Civil Rights Act of 1870 and 
1871, 42 U.S.C. § 1981 and 1983, is in no way affected . . . 
[T]he remedies available to the individual under Title VII 
are co-extensive with the individual s right to sue under 
the provisions of the Civil Rights Act of 1866, 42 U.S.C.
§ 1981 . . . "

-8-





position taken by the government in such litigation is 
somewhat surprising, since both agencies have at the 
same time been repeatedly assuring Congress that legis­
lation waiving sovereign immunity is unnecessary pre­
cisely because the federal courts do have jurisdiction 
over such cases. These assurances undoubtedly led in part 
to the restrictions in the waiver ultimately enacted, such 
as the 30 day filing requirement with which plaintiff was 
unable to comply.

The unusual dichtomy in the government's position 
is well illustrated by the instant case. The United States 
maintained in the District court that it lacked jurisdiction 
to review allegations of racial discrimination against a 
federal employee. But the United States Civil Service Com­
mission, during recent hearings considering additional 
express authorization of such suits, testified such legislation 
was unnecessary because the right to sue already existed. In
the District Court the United States relied heavily on Gnotta.v ._
United States, 415 F.2d 1271 (8th Cir. 1969), cert, denied, 397

3/ "There is also little question in our mind that a Federal 
employee who believes he has been discriminated against may 
take his case to the Federal courts after exhausting all of 
the administrative remedies." Remarks of Irving Kator, Executive 
Director, United States Civil Service Commission, Hearings Before 
a Subcommittee of the Senate Committee on Labor & Public Welfare,
92 Cong., 1st Sess. 301 (1971) p. 296. "We believe Federal Employees 
now have the opportunity for court review of allegations of discrim­
ination, and believe they should have such a right. Id. p. 310, 
written statement on behalf of the United States Civil Service 
Commission.

-9-





U.S. 934 (1970), and Congress of Racial Equality v.
_9/

Commissioner, 270 F.Supp. 537 (D. Md. 1967.) But the
Civil Service Commission urged before Congress that
these decisions did not preclude litigation such as this
since they had failed to consider the applicable provisions
of the Constitution, U.S. Code, and Code of Federal Regula-

10/tions. Although racial discrimination is both unconstitutional 
and beyond the authority of any federal officer, the United 
States urged below that injunctive relief could not be granted 
since it would involve promoting plaintiff and have an effect

9/ Defendants 1 Memorandum in Support of Their Motion to 
Dismiss The Complaint; pp. 3-4, 7; Defendants' Reply Memor­
andum, p. 6; Defendants' Memorandum in Opposition to Plain­
tiff's Motion to Amend his Complaint, pp. 3, 5.
10/ "in the CORE case, suit was brought to redress alleged 
discriminatory denials of promotions. The case was dismissed 
on several grounds among which was that Executive Order No. 11246 
(the predecessor of the present Executive Order relating to 
discrimination) gave no actionable right in a district court.
As it appears that the attention of the court in the CORE case 
was not directed to the statute (5 U.S.C. § 7151 (Supp. V. 
1965-1969) and that case involved no constitutional issue, we 
do not regard it as dispositive of the matter under considera­
tion. To the same effect see Gnotta v. United States, 415 
F .2d 1271 (8th Cir. 1969), in which one court found no juris­
diction to review an alleged failure of promotion due to dis- 
crimination but did not discuss the statutory or constitutional 
issues that might be involved in such an action. We are of the 
opinion that an individual who has exhausted the discrimination 
complaint procedure provided in Part 713 of the Civil Service 
regulations (5 CFR part 713) may obtain judicial review of the 
alleged discriminatory action . . . "  Hearings Before the Sub 
committee on Labor of the House Committee on Education and 
Labor, 92 Cong., 1st Sess. 386 (1971).

-10-





on the Treasury. Assistant Attorney General Ruckelshaus,
however, testifying against any new waiver of sovereign
immunity, reassured Congress that all constitutional claims
and allegations of unauthorized actions were cognizable in12/
federal court. The United States now maintains that no cause
of action existed prior to the enactment of the 1972 Amendments
to Title VII; when those Amendments were being considered by
Congress, however, the Civil Service Commission urged that they
"would add nothing" to the rights which federal employees already 

13/ 
had.

In passing on a motion to dismiss for failure to state
a claim on which relief can be granted, the court must search
the pleadings to ascertain whether any facts which might be proved
under the complaint would constitute a cause of action. 2A Moore1s 
Federal Practice f 12.08
11/ Defendants' Reply Memorandum, p. 6.
12/ " [T]o some extent injunctive remedies are already available.
The constitutionality of any program can be challenged. The 
authority within the program of an official to act can be challenged.

" [T]here is no doubt that a court today may look into unauthor­
ized or unconstitutional agency action . . . "  Hearings Before a 
Subcommittee of the Senate Judiciary Committee, 91st Cong., 2d Sess. 
(1970), pp. 69, 74, 256-257.
13/ Hearings Before the Subcommittee on Labor of the Senate 
Committee on Labor and Public Welfare, 92 Cong., 1st Sess.
301 (1971).

11/

-11-



.



A ; i i "'
,„; i ',# ;n '.1-.)tiA  • ■'•*& ':'} i

That requirement is particularly applicable to a motion 
which alleges lack of jurisdiction, since a plaintiff is 
entitled as of right to correct defective allegations of 
jurisdiction at any time. 28 U.S.C. § 1653. If facts 
giving the court jurisdiction are set forth in the com­
plaint, the provision conferring jurisdiction need not be
specifically pleaded. Williams v. United States. 405 F.2d

■ !951, 954 (9th Cir. 1969); Schwarz v. United States, 191 F.
-2d 618 (4th Cir. 1951).,. —  — ----

Plaintiff urges that the District Court had 
jurisdiction over this action (1) to issue a writ of 
mandamus against the defendants, under 28 U.S.C. § 1361, 
pp• 5 - 20 , (2) to compel promotion and an award of back
pay under the Administrative Procedure Act, pp. 21 - 27 
(3) to award back pay and damages under the Tucker Act,
28 U.S.C. § 1346, pp. 29- 35 (4) to afford any appropriate 
relief for a violation of the 1866 Civil Rights Act, 42 U.S.C.
§ 1981, pp. 36 - 83, and (5) to grant relief against the
individual defendants since they acted without lawful authority,

PP- 59 - 60-

-12-





II. JURISDICTION OVER THIS ACTION IN CONFERRED BY 
28 U . S . C .  S 1361

Section 1361, 28 U.S.C., provides:
The district courts shall have 

original jurisdiction of any action 
in the nature of mandamus to compel 
an officer or employee of the United 
States or any agency thereof to per­
form a duty owed to the plaintiff.

This provision, enacted in 1962, was intended to confer upon
upon the district courts the mandamus power until then limited
to the District Court for the District of Columbia. Jarrett v.
Resor. 426 F.2d 213 (9th Cir. 1970); Rural Electrification
Administration v. Northern States Power Co j . 373 F.2d 686

(8th Cir. 1967) cert, denied 387 U.S. 945.
A writ of mandamus is available to compel a federal 

officer to perform a ministerial act. Marbury vMa.dison> 5 U.S.
(1 Cranch) 137 (1803). An act is ministerial when the official 
is under an absolute obligation to perform it, and is afforded 
no discretion as to whether to take the action commanded.
Leonhard v. Mitchell, 473 F.2d 709, 712-713 (2d Cir. 1973).
Mandamus is authorized to compel compliance with the commands 
of the Constitution, Federal statutes, or regulations. Id. at 
713.

Plaintiff herein seeks to compel the defendants to 
pass on his application for promotion without discriminating 
against him because of his race. Defendants have an undeniable 
ministerial duty to make promotions within the General Services 
Administration without discriminating on the basis of race.

First, the Fifth Amendment guarantee of due process 
of law, absolutely prohibits the federal government from discriminating

-13-





against blacks in employment, education, or any other regard. 
Bolling v. Sharpe, 347 U.S. 497 (1954). " [T]he Constitution
of the United SLates, in its present form, forbids, so far as 
civil and political rights are concerned, discrimination by 
the General Government, or by the States, against any citizen
because of his race." 347 U.S. at 499, quotinq Gibson v.

14/
Mississippi, 162 U.S. 595, 591 (1896). The Fifth Amendment 
has been expressly held to bar federal discrimination in employ- 
ment, Davis v. Washington, 4 EPD f7926 (D.D.C. 1972); Faruk v. 
Rogers, 5 EPD [̂8015 (D.D.C. 1972) .

Second, the authority of the defendants in personnel 
matters is strictly circumscribed by section 7151 of Title 5 
of the United States Code, which declares it to be the official 
policy of the United States "to insure equal employment oppor­
tunities for employees without discrimination because of race, 
color, religion, sex or national origin", and directs that the 
President "shall" carry out this policy. Section 7151 is no 
mere assertion of social goals, it is a direct and unequivocal 
command to the executive branch not to discriminate against 
plaintiff because of his race. See Henderson v. Defense Contract 
Administration, 72 Civ. 5420 (S.D.N.Y.) (Opinion dated December 31, 
1973, pp. 4-5.

Third, racial discrimination by defendants is forbidden 
by the Civil Rights Act of 1866, 42 U.S.C. § 1981, which provides 
in part that "All persons within the jurisdiction of the United 
States shall have the same right in every state and territory to 
make and enforce contracts . . .  as is enjoyed by white citizens

14/ The Senate Report on the 1972 amendments to Title VII concluded 
on the basis of Bolling that "ftjhe prohibition against discrimina­
tion by the Federal government, based upon the Due Process clause 
of the Fifth Amendment, was judicially recognized long before the 
enactment of the civil Rights Act of 1964. ' S.Rep. No. 92-415, 92nd 
Cong., 1st Sess. (1971), Legislative History, pp. 42-422.

-14-





Fourth, discrimination is barred by federal regulations 
and Executive Order. Section 713, 5 Code of Federal Regulations 
which codifies a series of Executive Orders datincr back to

15/1948 and Executive Order 11478, both establish that it is 
the policy of the government of the United States "to provide 
equal opportunity in federal employment for all persons, to 
prohibit discrimination in employment because of race", E.O. 
11478, §1; 5 C.F.R. § 713.202, and require that each executive 
department and agency "shall" establish a program to assure 
"equal opportunity in employment and personnel operations 
without regard to race." E.O. 11478, § 2; C.F.R. § 713.201(a).

15/ See E.O. 9980, July 26, 1948; E.O. 10590, January 18, 1955; 
E.O. 10925, March 6, 1961; E.O. 11246, September 24, 1965;
E.O. 11478, August 8, 1969; E.O. 11590.
16/ E.O. 11478, as amended by E.O. H590, provides in pertinent 
part,

"Section 1. It is the policy of the 
government of the United States to 
provide equal opportunity in federal 
employment for all persons, to pro­
hibit discrimination in employment 
because of race, color, religion, 
sex, or national origin, and to 
promote the full realization of 
equal employment opportunity through 
a continuing affirmative program in 
each executive department and agency ...
"Section 2. The head of each executive 
department and agency shall establish and 
maintain an affirmative program of equal 
employment opportunity for all civilian 
employees and applicants for employment 
within his jurisdiction in accordance 
with the policy set forth in Section 1.
It is the responsibility of each depart­
ment and agency head, to the maximum 
extent possible, to provide sufficient 
resources to administer such a program in 
a positive and affective manner ...

5 C.F.R. § 713.201 provides
"Purpose and applicability. — (a) Purpose.
This subpart sets forth the regulations 
under which an agency shall establish a 
continuing affirmative program for equal

-15-



'



In the only other cases in which this question has
arisen, the Fifth Circuit Court of Appeals has twice held
that mandamus is available to compel federal defendants to
hire and promote without regard to race. In Beale v. Blount.
461 F.2d 1133 (5th Cir. 1972), the plaintiff claimed he had
been dismissed because he was black. The court held,

Traditionally, the procedural avenue 
to reinstatement for an ex-employee 
of the federal government claiming 
to be the victim of improper discharge 
has been a petition for mandatory in­
junction or writ of mandamus directed 
to the head of the agency concerned 
commanding the re-employment of petitioner.
. . . In 1962, Congress broadened the

opportunity in employment and personnel 
operations without regard to race, color, 
religion, sex, or national origin and 
under which the Commission will review 
an agency1s program and entertain an appeal 
from a person dissatisfied with an agency's 
decision or other final action on his com­
plaint of discrimination on grounds of race, 
color, religion, sex, or national origin*"

5 C.F.R. § 713.202 provides,
"General policy. - It is the policy of the 
Government of the United States and of the 
government of the District of Columbia to 
provide equal opportunity in employment for 
all persons, to prohibit discrimination in em­
ployment because of race, color, religion, 
sex, or national origin, and to promote the 
full realization of equal employment oppor­
tunity through a continuing affirmative 
program in each agency."

Cont'd . 
16/

16-





availability of the mandamus remedy 
by investing the district courts 
generally with jurisdiction to issue 
the writ which eliminated the previous 
requirement that reinstatement suits 
be maintained only in the United States 
District Court for the District of 
Columbia . . . Title 28 U.S.C., Section 
1361. 461 F .2d at 1137.12/

In Penn v. Schlesinger (No. 72-3684, 5th Cir.) the plaintiffs 
claimed, as here, that they had been denied promotion or ad­
vancement because of their race. The Fifth Circuit held that 
mandamus was available to enforce 42 U.S.C. § 1981, and to 
order promotion to the plaintiffs and such other affirmative 
remedies as might be appropriate. (Opinion dated December 18,
1973) 6 FEP Cases 1109. Mandamus was also awarded in Thorn v. 
Richardson. 4 EPD 57630, p. 5490 (W.D. Wash. 1971).

Mandamus is also available to enforce a ministerial 
duty to pay a particular sum of money to the plaintiff. In 
United States ex rel. Parish v. Macveaqh, 214 U.S. 124 (1909), 
the Secretary of the Treasury had refused to pay the plaintiff 
$181,358.95, which payment was required by a special Act of 
Congress. The Supreme Court held that mandamus was available 
to compel the Secretary to issue a draft in that amount. 214 
U.S. at 138. In Miguel v. McCarl, 291 U.S. 442 (1934), the 
Supreme Court held that mandamus was available to compel the
payment of a pension unlawfully withheld by the Comptroller
General and the Army Chief of Finance. In Roberts v . United
States ex rel. Valentine, 176 U.S. 221 (1900), the Supreme
Court upheld a writ of mandamus directing the Treasurer of
the United States to pay interest on certain bonds issued by
the District of Columbia. See also Garfield v. United States
ex rel. Goldsby. 211 U.S. 249 (1908; Work v. United States
17/ Mandamus was denied in Beale because p^fd^at^llis-llfl ^In^the0 exhaust his administrative^remedies. 4 6 1  F.2d at 1138 1141. instant case, of course, those remedies were exnauscea.





ex rel. Lynn, 266 U.S. 161 (1924); City of New York v. Ruckelshaus, 
358 F.Supp. 669 (D.D.C. 1973). Mandamus is not, of course, avail­
able to compel payment of an ordinary disputed tort or contract 
action.

In the instant action plaintiff seeks, inter alia,
an award of back pay. Were this a mere claim for consequential
damages mandamus would be inappropriate. But the applicable 
regulations place upon defendants an unusual express obligation 
to compute and award back pay in cases of racial discrimination, 
rendering the award of such back pay a ministerial act.
Section 713.271(b) 5 C.F.R., provides,

Remedial action involving an employee 
when an agency or the Commission, finds 
that an employee of the agency was discrimi­
nated against and as a result of that dis­crimination was denied an employment benefit, 
or an administrative decision adverse to him 
was made, the agency shall take remedial 
actions which shall include one or more of the 
following, but need not be limited to these 
actions;

Retroactive promotion, with backpay 
computed in the same manner prescribed 
by § 550804 of this chapter, when the record 
clearly shows that but for the discrimination 
the employee would have been promoted or 
would have been employed at a higher grade, 
except that the backpay laiability may not 
accrue from a date earlier than 2 years prior to the date the discrimination complaint 
was filed, but in any event, not to exceed the 
date he would have been promoted. If a finding 
of discrimination was not based on a complaint, 
the backpay liability may not accrue from a 
date earlier than 2 years prior to the date the finding of discrimination was recorded, 
but, in any event, not to exceed the date he 
would have been promoted. (Emphasis added.)

Whether in fact plaintiff was denied promotion because of his 
race is a disputed fact to be resolved by the District Court.

-18-





If however, the District Court determines that discrimination 
was involved, thepayment of backpay by defendants will be a
ministerial act which the Court can compel by a writ of mandamus.

Sovereign immunity affords no obstacle to the award of 
relief by writ of mandamus. Mandamus is in general available 
only when the defendants are acting in clear violation of federal 
law; in such a case, however, the unlawful acts are no longer 
those of the sovereign, and may be corrected by the courts. The 
defense of sovereign immunity in a mandamus action was raised 
and rejected long ago in Marbury v. Madison, 5 U.S. (1 Cranch),
137, 166, 170-171 (1803). Any action in which a federal official 
has refused to perform a ministerial act is, by definition, one 
in which the official has lost the mantle of the sovereign and 
is a mere private wrongdoer. See Clackamas County, Oregon v.
Mackay, 219 F.2d 479, 488-496 (D.C.Cir. 1954), vacated as moot 
349 U.S. 909 (1955); McQueary v. Laird, 449 F.2d 608, 611 (10th 
Cir. 1971); Byse and Fiucca, "Section 1361 of the Mandamus and 
Venue Act of 1962" 81 Harv. L .Rev., 308, 340-42 (1967). in
addition to sanctioning mandamus actions against federal officials, 
Section 1361 also authorizes mandamus against "any agency" of the
United States, including in this case the defendant General Services

19/ . _. ,Administration. This express language modifies the usual rule

18/

Is/ The decisions of the Fifth Circuit in this regard were divided. 
The panel in Beale held that backpay was awardable along with re­
instatement in an appropriate case. 46«1 F.2d 1133, 1138. The 
panel in Penn concluded that backpay was unavailable because it 
would "impinge upon the Treasury." Slip opinion p.10. Neither 
decision considered the unusual provisions of 5 C.F.R. § 713.271(b)
12/ That section 1361 authorized mandamus against an agency was 
well understood. Senator Mansfield, explaining the bill on behalf 
°f the Judiciary Committee, stated that under it the court can only compel "the official or agency to act where there is a duty

-19-





that, because of sovereign immunity and the nature of mandamus 
itself, a government agency cannot be subject to mandamus. The 
change, however, is one largely of form permitting an agency to be sued ir 
its own name; the relief available is the same as would be afforded 
if the individual in charge of the agency were sued instead. Certainly 
section 1361 constitutes a waiver of immunity in any action "in 
the nature of mandamus"; if it did not that provision would be a 
dead letter.

Cont1d.
19/ which the committee construes as an obligation, to act ... As 
stated in the House report, the bill does not define the term 'agency', 
but the committee agrees that it should be taken to mean any depart­
ment, independent establishment, commission, administration, authority, 
board, or bureau of the United States, or any corporation in which the 
United States has a proprietary interest." 108 Cong. Rec. 18784. (Emphasis added)

-20



C f I f c  '{

■ ■ **■ fS V  r , • * ' , ' „ - : x

> '  -  . S

1 " Vt<:  ■ ? r  'h



III. Jurisdiction Over This Action Is Conferred 
by the Administrative Procedure Act

Section 10(a) of the Administrative Procedure Act,
5 U.S.C. §702, provides in broad language that "[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." 
The remedy which a reviewing court can afford is broadly 
cast; the aggrieved plaintiff may maintain "any applicable 
form of legal action, including actions for declaratory 
judements or writs of prohibitory or mandatory injunction 
. . 5 U.S.C. §703. The reviewing court is commanded to

(1) compel agency action unlawfully withheld 
or unreasonably delayed; and

(2) hold unlawful and set aside agency action, 
findings, and conclusions found to be -
(A) arbitrary, capricious, an abuse 

of discretion, or otherwise not 
in accordance with law;

(b) contrary to constitutional right, 
power, privilege, or immunity . . .

5 U.S.C. § 706.
The instant action is within the literal language of 

the Administrative Procedure Act. Plaintiff is undeniably 
aggrieved by the refusal of the defendant General Services

-21-





Administration to promote him. A refusal to promote plaintiff 
because of hisj race would be in violation of his rights under 
the Fifth Amendment to the Constitution. See §706 ( 2)(B).
Any such decision based on racial discrimination is by definition 
"arbitrary and capricious." §706 (2)(B). And such discrimination 
violates two federal states, 42 U.S.C. §1981 and 5 U.S.C. §7151, 
a series of Executive Orders culminating in Executive Order 11482, 
and the applicable Federal regulations, 5 C.F.R. §713, and is2 0 /
undeniably "not in accordance with law." §706(1) and (2)(A).

The coverage of the Administrative Procedure Act is to be 
liberally interpreted. As the Supreme Court detailed in Abbott 
Laboratories v. Gardner, 387 U.S. 136, 140-141 (1967):

The legislative material 
eluciadating that seminal act manifests 
a congressional intention that it cover 
a broad spectrum of administrative 
actions, and this Court has echoed that 
theme by noting that the Administrative 
Procedure Act's "generous review provisions" 
must be given a "hospitable" interpretation. 
Shaughnessv v. Pedreiro, 349 U.S. 48, 51, 99 
L ed 868, 873, 75 S.Ct 591; see United States 
v. Interstate Commerce Comm'n, 337 US 426 
433-435, 93 L ed 1451, 1460, 69 S.Ct.1410; 
Brownell v. Tom We Shunq, supra; Heikkila v 
Barber, supra. Again in Rusk v. Cort, supra 
369 US at 379-380, 7 L ed 2d at 816,817, 
the Court held that only upon a showing of 
"clear" and convincing evidence" of a 
contrary legislative intent should the courts 
restrict access to judicial review. See also 
Jaffe, Judicial Control of Administrative 
Action 336-359 (1965)

20/ "Law" clearly includes regulations. See e.g. Citizens to 
Preserve Overton Park v. Volpe, 401 U.S. 402, 417 ff. (1971).

-22-





See also Chicago v. United States, 396 U.S. 162, 165 (1969);
Norwalk CORE v. Norwalk Redevelopment Agency,395 F.2d 920,
932-933 (2d Cir. 1968). There is nothing to indicate any 
intent to preclude judicial review in the language, or 
legislative history, of the Fifth Amendment, 42 U.S.C. §1981,
5 U.S.C. §7151, Executive Order 11482, or 5 C.F.R. §713.
While there are certain express exceptions to the provisions 
for judicial review, see 5 U.S.C. 701(b), none of them are 
applicable here.

It is well established that the Administrative Procedure
Act confers jurisdiction on the district courts to review
agency action. The question was resolved by the Supreme Court
in Rusk v. Cort, 396 U.S. 367 (1962), where the plaintiff sued
under the Administrative Procedure Act and the Declaratory
Judgment Act to overturn a decision of the Secretary of State.
The Court, reasoning that "on their face the provisions of these
statutes appear clearly to permit an action such as was brought
here to review the final administrative determination of the
Secretary of State," concluded that "the District Court was
correct in holding that it had jurisdiction to entertain this
action for declaratory and injunctive relief." 369 U.S.

21/
at 370, 372.

21/ Justice Brennan, concurring, held that the Administrative 
Procedure Act was a general grant of jurisdiction 369 U.S. at 
380, n.l. Justice Harlan dissented on the ground that juris­
diction had been withdrawn by the Immigrational Nationality 
Act of 1952, but agreed that otherwise it would have been con­
ferred by the Administrative Procedure Act. See 369 U.S. at 383-399

-23-





That the Administrative Procedure Act confers jurisdiction on the 
district court has been repeatedly affirmed by the courts of
this circuit. See Citizens Committee for Hudson Valley v. Volpe, 
425 F .2d 97, 102-103 (2d Cir. 1970) cert, denied 400 U.S. 949
(1970); Cappadora v. Celebrezze, 356 F.2d 1, 5-6 (2d Cir.1966); 
Schicker v. United States, 346 F.Supp. 417, 419 (D. Conn. 1972) 
modified on other grounds sub nom. Schicker v. Romney, 474 F.2d 
309 (2d Cir. 1973); Road Review League v. Boyd, 270 F.Supp. 650 
651 (S.D. N.Y. 1967); Harris v. Kaine, 352 F.Supp. 769, 772 
(S.D.N.Y. 1972). See also Davis v. Romney, 355 F.Supp. 29,40-42 
(E.D. Pa. 1973); Northwest Residents Association v. Department of 
Housing and Urban Development, 325 F.Supp. 65, 67 (E.D. Wis. 1971); 
Arrow Meat Company v. Freeman, 261 F.Supp. 622, 623 (D. Ore. 1966). 
The "legal right" which plaintiff seeks to enforce need not be 
contained in a statute which establishes an independent basis of 
jurisdiction; it is sufficient that the statute was enacted to 
protect plaintiff's interests. Norwalk Core v. Norwalk Re­
development Agency, 395 F.2d 920, 933 (2d Cir. 1968).

The Administrative Procedure Act, by virtue of conferring 
jurisdiction to review the actions of federal agencies, ipso facto 
waived any immunity those agencies might have from suit.
Manifestly if the Act contained no such waiver, it would be a dead 
letter. Four circuits, including the Second, have expressly held 
that the Administrative Procedure Act constitutes a waiver of 
sovereign immunity. Kletschka v. Driver, 411 F.2d 436, 44j 
(2nd Cir. 1969); Scanwell Laboratories Inc., v. Shaffer, 424 
F .2d 859,873-4 (D.C. Cir. 1970); Estrada v. Ahiens, 296 F.2d

-24-



: • ' n  * ' . -  W r :

, ■ i .

||

' * v  .



690, 698 (5th Cir. 1961); Adams v. Witmer, 271 F.2d 29, 34 (9th Cir.
1959) . The same conclusion has been reached by several district
courts. See National Helium Corporation v. Morton,326 F.Supp.151,
154 (D. Kan. 1971) aff'd 455 F.2d 650, Lombard Corporation v.
Resoc, 321 F.Supp. 687, 692-693 (D.D.C. 1970); Schroede Nursing
Care, Inc, v. Mutual of Omaha Inc. Co., 311 F.Supp. 405-409

22/(E.D. Wis. 1970. The court of appeals in Scanwell correctly 
reasoned

It seems axiomatic to us that one must 
imply, from a statement by Congress that 
judicial review of agency action will be 
granted, an intention on the part of 
Congress to waive the right of sovereign 
immunity; any other construction would 
make the review provisions illusory_23/

22/ Other courts have reached the same result by arguing that, 
if the defendant individuals have acted unlawfully, the action is 
not one against the sovereign. See e.g. National Helium Corporation 
v. Morton, 455 F.2d 650, 654-655 (10th Cir. 1971). citing Dugan <T. 
Rank, 372 U.S. 609 (1963)
23/ That the contrary rule would nullify the Administrative 
Procedure Act, is well illustrated by Gnotta v. United States,
415 F .2d 1271 (8th Cir. 1969), cert, denied 397 U.S. 934 
where the court held that judicial review was technically avail­
able, but that sovereign immunity barred a suit for review against 
any conceivable defendant, including the United States, the Civil 
Service Commission, and the individual government employees accused 
of unconstitutional and illegal conduct, and dismissed the action, 
415 F .2d at 1277. That decision has been widely criticized inter 
alia, by Professor Davis. Davis, Administrative Law Treatise,
1970 Supplement, p. 904. The Civil Service Commission suggested 
to Congress that Gnotta was wrongly decided, see p. 10, supra, 
and cited as proof that federal employees could sue to redress 
discrimination in employment Nixon v. Harris, 325 F.Supp. 28 (D.Colo 
an action brought under the Administrative Procedure Act. See 
Hearings Before a Subcommittee of the Senate Committee on Labor 
and Public Welfare, 92nd Cong., 1st Sess. , pp. 296, 301, 308, 318 
(1971).

-25-



.



Scanwell Laboratories, Inc, v. Shaffer,424 F.2d at 874.

This is not like an ordinary federal personnel matter 
in which the government agency has broad discretion. Compare 
Chiriaco v. United States, 339 F.2d 588 (5th Cir. 1964). The 
constitution, Acts of Congress, an Executive Order and Federal 
regulations all strip the defendants of any discretion to refuse 
to promote the plaintiff because of his race. An allegation 
of racial discrimination calls into question the motives of those 
who denied plaintiff a promotion; in such a case the substantiality 
of the evidence supporting a denial is inconclusive, since the 
fairness of those who passed on the evidence is in doubt.
Compare In re Castellone,148 F.Supp 676, 681 (N.D. Ohio 1957).
The problems of racial discrimination in employment is not one 
on which the named defendants can claim unique expertise; the 
problem is far removed from ordinary personnel matters, and is 
one in which the Federal courts have acquired experience and 
expertise in litigation under Title VII of the 1964 Civil Rights 
Act and 42 U.S.C. §§ 1981 and 1983. Compare Securities and 
Exchange Commission v. Wall Street Transcript Corp., 294 F.Supp.
298, 307 (S.D. N.Y. 1968). Indeed it was the judgment of Congress 
that Federal agencies and administrative review have proved 
inadequate to discover and remedy instances of racial discrimination

-26





against federal employees.

Jurisdiction over the instant action to review the actions 
of the General Services Administration is thus clearly 
provided by the Administrative Procedure Act.

24/

24/ "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 com­
plaint procedure on the part of Federal 
employees. Complaints 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 impair­
ing any hope of future advancement.

Aside from the inherent structural 
defects the Civil Service Commission has 
been plagued by a general lack of expertise 
in recognizing and isolating the various 
forms of discrimination which exist in the 
system. The revised directives to Federal 
agencies which the Civil Service Commission 
has issued are inadequate to meet the challenge 
of eliminating systematic 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 procedures it has promul­
gated may actually operate to the disadvantage 
of minorities and women in systemic fashion.

H. Rep. No. 92-238, 92nd Cong., 1st Sess. 24 (1971). See also
Legislative History of the Equal Employment Opportunity Act of
1972, 270, 271, 423, 1726 (1972).

-27-





IV. JURISDICTION OVER PLAINTIFF'S CLAIMS FOR BACK PAY AND DAMAGES IS 
CONFERRED BY THE TUCKER ACT. 28 U.S.C. $ 1346

Section 1346, Title 28 United States Code, provides in 
pertinent part:

(a) The district courts shall have original juris­
diction, concurrent with the Court of Claims, of:

*  *  *

(2) Any other civil action or claim against 
the United States, not exceeding $10,000-=^/ in 
amount, founded either upon the Constitution or 
any Act of Congress, or any regulation of an 
executive department, or upon any express or 
implied contract with the United States, or for 
liquidated or unliquidated damages in cases not 
sounding in tort.

This statute, known as the Tucker Act, is understood to be an express 
waiver of sovereign immunity as to claims falling within its scope. 
United States v. Yellow Cab Co., 340 U.S. 543 (1951); Spillway 
Marina, Inc, v. U. S., 445 F.2d 876 (10th Cir. 1971); Lloyds1 London 
v. Blair. 262 F.2d 211 (10th Cir. 1958); Union Trust Co. v. United 
States, 113 F. Supp. 80 (D.D.C. 1953), aff'd in part 221 F.2d 62, 
cert, denied 350 U. S. 911.

Plaintiff's claims clearly fall within the literal language 
of Section 1346. Racial discrimination in federal employment is pro­
hibited by the Fifth Amendment to the Constitution. See Bolling v . 
Sharpe. 347 U.S. 497 (1954). An action is "founded upon" the 
Constitution whenever the damages are alleged to result from a 
violation of the Constitution; the plaintiff need not prove the 
Constitution expressly authorizes a lawsuit for that particular type 
of violation, since the Constitution contains no express authorization

Z~l/ The Original Complaint contained no allegation as to the size of plaintiff's claim. The proposed Amended Complaint 
alleges that the amount "in controversy" exceeds $10,000, [A.93]

-28-





sued under § 1346(a) (2), alleging a violation of the Fifth Amendment's
prohibition against taking private property without just compensation;
the Ninth circuit unanimously upheld a judgment in favor of plaintiffs.
And, in United States v. Hvoslef, 237 U.S. 1 (1915), an action was
upheld under this section as "founded upon" Article I, Section 9
of the Constitution, which forbids taxes on exports from any state.
Similarly, in Bivens v. Six Unknown Federal Narcotics Agents. 403
U.S. 388 (1971), the Supreme Court upheld that a suit against federal
employees arising out of a violation of the Fourth Amendment was an
action which "Arises under the Constitution." See, 28 U.S.C. §1331(a).
None of the constitutional provisions in Smith, Hvoslef or Bivens
contained any authorization of a civil action.

Similarly, the discrimination of which plaintiff complains
is a violation of two federal statutes, 5 U.S.C. § 7151 and 42 U.S.C.
§ 1981. See pp. 22-23, supra and pp. 36-53 infra. An action is
"founded upon" a federal statute if the government action complained
of is a violation of that statute, regardless of whether the statute
itself creates or contemplates a cause of action. Section 1346(a)(2)
has long been construed to authorize actions to compel refund of fines
or penalties, on the ground that the propriety of the fine or penalty
was governed by a federal statute. See Carriso v. United States, 106
F• 2d 707 (9th Cir. 1939); Compagnie General Transatlantique v. United
States. 21 F.2d 465, (S.D.N.Y. 1927), aff'd 26 F.2d 195. Spanish Royal
Mail Line Agency, Inc, v. United States, 45 F.2d 404 (S.D.N.Y. 1930);
Cont'd.■25/ but the United States denied that such an amount was at stake. Defendants" Memorandum In Opposition to Plaintiff's Motion to Amend,
P-4. if this Court were to determine that jurisdiction to award backpay

of litigation for violation of any of its provisions. in Smith
v. United States, 458 F.2d 1231 (9th Cir. 1972) the plaintiffs

-29-



,



Sultzbach Clothing Co. v. United States. 10 F.2d 363 (W.D.N.Y.
1925); Law v. United States, 18 F. Supp. 42 ( D.Mass. 1937);
Lanashire Shipping Co. v. United States, 4 F.Supp. 544 (S.D.N.Y.
1933). The statutes involved in thse cases were laws authorizing 
fines and penalties; none of them authorized or expressly contem­
plated an action to recover fines or penalties unlawfully assessed. 
Litigation under § 1346 has been expressly sanctioned as "founded 
upon" a wide variety of statutes which set the standard for govern­
ment conduct, but contained no mention of any remedy. See, Beers v. 
Federal Security Administrator, 172 F.2d 34 (2nd Cir. 1949) (Social 
Security Act); Ross Packing Co. v. United States, 42 F.Supp. 932 
(E.D. Wash. 1942) (National Labor Relations Act); Alcoa S.S.Co. v.
United States, 80 F.Supp. 158 (S.D.N.Y. 1948) (Transportation Act).

The federal courts have unanimously rejected the argument 
that an action under the Tucker Act can only be "founded upon" a 
federal statute which itself creates a remedy or right of action.
In Aycock-Lindsev Corporation v. United States, 171 F.2d 518 (5th 
Cir. 1948), the United States urged that an action under § 1346 
could not be "founded upon" the Soil Conservation and Docmestic 
Allotment Act because that statute "created no enforceable claim 
or right of action against the Government." 171 F.2d at 520. The 
Fifth Circuit expressly rejected that argument:

The Tucker Act does not provide that a statute 
of Congress upon which a statute is founded 
shall also provide that suit may be maintained 
against the United States for claims arising

Cont'd.
and damages existed only under section 1346, plaintiffs would be 

antitied to waive recovery in excess of $10,000 and thus confer juris­
diction on the District Court, and would do so. See Perry v. United 
States. 308 F.Supp. 245 (D.Colo. 1970), aff'd. 442 F.2d (10th Cir. 1971)

Sinclair Nav. Co. v. United States. 32 F.2d 90 (5th Cir. 1929);

-30-





under such statute. The authority for a suit 
is found in the general terms of the Tucker Act 
and need not be reiterated in every 
enactment of Congress upon which a claim 
against the United States could be "founded "171 F .2d 518.

Similarly, in Compagnie General Transatlantique v. United States, 21
F.2d 465 (S.D. N.Y. 1927) the court held that an action for the refund
of a penalty could be founded upon the provisions of the Immigration 
26/L3WS under which the penalty had purportedly been collected. Judge 

Augustus Hand explained:
To limit recovery in cases "founded" upon a 
law of Congress to cases where the law provides 
in terms for a recovery would make that pro­
vision of the Tucker Act almost entirely 
unavailable, because it would allow recovery 
only in cases where laws other than the Tucker 
Act already created a right of recovery. "Founded" 
must therefore mean reasonably involving the 
application of a law of Congress. 21 F.2d at 466.

See, also Ross Packing Co. v. United States, 42 F.Supp. 932, 937
(E.D. Wash. 1942). in United States v. Emery. Bird. Thaver R.R. Co..
237 U.S. 28 (1915), the Supreme Court held, for similar reasons,
that an action to recover a tax was "founded upon" the Corporation
T&x Law under which the tax was collected, although that tax provision
contained no remedial provision. 237 U.S. at 31-32.

Similarly, this action arises under the federal regulation
forbidding discrimination in federal employment. 5 C.F.R. § 713, and
Executive Order 11478. In Gnotta v. United States, 415 F.2d 1271
(8th Cir. 1969), cert, denied 397 U.S. 984 the court concluded that no
action under the Tucker Act could be had to enforce the order and regulatioi 
on the ground that neither mentioned money claims, and "none of the executi\ 
Qont\=L ~~
2j>/ Sutcliffe Storage & Warehouse Co. v. United States, 162 F.2d 849 (1st 
Eir. 1947); United States v. Johnson, 153 F .2d 846 (9th Cir. 1946); Hi11 v . 
United StatPm. 40 F.2d 441 (1st Cir. 1889); Jones v. United States, 127 
P-Supp. 31 (E.D.N.C. 1954) .
26/ 39 Stat. 880 and 43 Stat. 155

-31-



■

-

>fl V'-' ■ 1 -
■



orders or regulations . . . purports to confer any right on an employee 
of the United States to institute a civil action for damages against 
the United States." 415 F.2d at 1278. This reasoning is plainly 
erroneous. First, since the decision in Gnotta the regulations have 
been amended to authorize the award of back pay. See pp. 18-19, supra. 
Second, no mere regulation of Executive Order could, by itself, 
create a federal cause of action; only Congress has that power. Third, 
the reasoning in Gnotta —  that an action can only be "founded upon" 
a regulation which itself creates a cause of action —  is precisely 
the construction of the Tucker Act consistently rejected by all other 
federal courts.

The literal language of § 1346 is manifestly broad enough
to cover claims for damages and back pay arising out of racial
discrimination in employment. The statute covers "any claim" arising
under the Constitution, statutes or regulations, and while there are

27/express exceptions they are not applicable to this case. As the 
Supreme Court held in reasoning a similar provision, "The statute's 
terms are clear . . . they provide for district court jurisdiction 
over any claim . . . .  Without resort to an automatic maxim 
of construction, such exceptions make it clear to us that Congress

27/ Section (d) provides; "The district courts shall not have juris­
diction under this section of any civil action or claim for a pension.

-32-



iflPl



knew what it was about when it used the term 'any claim1" 
United States, 337 U.S. 49, 51 (1949).

Brooks v.

This construction of § 1346 is supported by the interpre­
tation given by the Court of Claims to the similarly avoided provisions 
of 28 U.S.C. § 1491. The latter statute provides, inter alia,

The Court of Claims shall have jurisdiction 
to render judgment upon any claim against the 
United States Founded either upon the Consti­
tution, or any Act of Congress, or any regu­
lation of an executive department. . .

In Chambers v. United States, 451 F.2d 1045 (Ct. Cl. 1971), the 
court held that a claim of racial discrimination in federal employ­
ment stated a cause of action under § 1491, since such discrimination 
violated Executive Orders 11246 and 11478. The Court of Claims expressly 
considered, and held erroneous, the reasoning in Gaotta v. United 
States. 415 F.2d 1271, (8th Cir. 1969), cert, denied, 397 U.S. 934.
See also Allison v. United States, 451 F.2d 1035 (Ct. Cl. 1971);
Pettit v .  United States, No. 2 5 3 - 7 2  (Ct. Cl. 1973) (Opinion dated 
December 1 9 ,  1 9 7 3 ). The decisions of the Court of Claims construing 
its own jurisdiction, which is by definition concurrent with and 
identical to that of the district courts, must be afforded substantial 
we i g h t .  See Beale y, Blount, 461  F.2d 1133 ,  1135 n. 2 ( 5 t h  Cir. 1972)  . 

District court jurisdiction under the Tucker Act to award back pay 
for discrimination in employment was expressly upheld in Palmer v. 
£2Sers_, 5 EPD f8822, p. 5493 n.l (D.D.C. 1 9 7 3 ) .

That back pay is available under the Tucker Act is made 
abundantly clear by its legislative history. Prior to 1964, § 1346 
exPressly excluded from its coverage " [a]ny civil action or claim to
recover fees, salary or compensation for official services of officers 
0r employees of the United States." See, 28 U.S.C.A. § 1346(d)(2)
(1962). This exception to the broad language of § 1346(a)(2) was

33-





understood to preclude the award of backpay. Jackson v. United
States, 129 F.Supp. 537 (D.Utah 1955). In 1964 this restrictive
provision of Section 1346 was repealed. Pub. L. 88-519, 78 Stat.

28/ 29/
699. The House Report, the Senate Report, and the congressional 30/
debates all agreed that the first purpose of the change was to 
allow actions for backpay in the district courts.

28/ H.Rep. 1604, 88th Cong., 2d Sess., p.2, "The committee notes 
that by virtue of the act of October 5, 1962 (76 Stat. 744, 28 
U.S. § 1391), it is now possible for Government Employees who 
claim to have been improperly discharged to sue in their home 
districts for reinstatement. However, the present prohibition 
of subsection (d)(2) of section 1346, 28 United States Code makes 
it necessary for any claim for backpay to be brought in the Court 
of Claims. The committee believes that when the amount claimed 
as backpay is not more than $10,000, and is therefore within the 
monetary limit of the district courts' general jurisdiction of 
contract claims against theUnited States the issue of reinstate­
ment and the issue of compensation should be susceptible of being 
disposed of in a single action."
29/ S.Rep. 1390, 88th Cong., 1st Sess., 2 U.S. Code Cong, and 
Admin. News (1964), p.3255,

"Under the existing statutes, any officer or 
employee of the United States is required to file 
only in the Court of Claims here in Washington 
a civil suit to recover fees, salary, or compen­
sation for services rendered as an officer or 
employee of the United States. By virtue of the 
act of October 5, 1962 (76 Stat. 744, 28 U.S.C.
1361), it is now possible for Government employees 
who allege they have been improperly discharged to 
sue in their home districts for reinstatement, but 
under the prohibition of subsection (d) of 28 U.S.C., 
Section 1346, the employee's claim for back pay, 
which very frequently accompanies his claim for 
reinstatement, must be brought in the Court of 
Claims. Under the circumstances it is clear, that 
in order to do complete justice as efficiently and 
inexpensively as possible, the district courts 
should be given jurisdiction of the compensation 
claimed as well as the improper discharge, in order 
that they may be disposed of in a single action."

.10/ 110 Cong. Rec. 19766 (Remarks of Sen. Keating):
"This bill will have its most salutary effect in 
employee discharge cases. Today, under a 1962 
statute, a Government employee who claims to have 
been improperly removed from his position may sue

-34-



.

.



Section 1346 therefore confers jurisdiction on the
district court to award plaintiff backpay and damages up to
$10,000 upon showing that he was denied a promotion or other-

22/wise discriminated against because of his race.
Cont1d .
30/ to get his job back in his local federal court. But 
the subsection of the Judicial Code which the present bill 
would repeal today prevents the employee, if he succeeds 
in establishing his right to reinstatement from getting a 
judgment in the same action for the backpay to which he is 
also entitled. To get the backpay, he must either bring 
another suit in the Court of Claims or, in some instances, 
seek the additional relief administratively. Now, if this 
bill is finally approved, it will be possible for him to 
secure both reinstatement and complete monetary relief in 
single proceeding."
31/ Injunctive relief is not available under the Tucker 
Act. See Clay v. United States, 210 F.2d 686 (D.C.Cir. 1954); 
Rambo v. United States, 145 F.2d 670 (5th Cir. 1944), cert, 
denied 324 U.S. 848; Blanc v. United States, 244 F.2d 708 
(2d Cir. 1957) .

-35-





v- iffl.RISPJ.g n ON QYfiR JHIS. ACTION IS CONFERRED BY THE1866 CIVIL RIGHTS ACT, 42 U.S.C. S 1981AND 28 U.S.C. S 1343(4)
(a) The 1866 Civil Rights Act, 42 U.S.C. s 1981, Forbids 

Discrimination in Employment by the United States

Section 1981, 42 U.S.C., which derives from Section 1 
of the 1866 Civil Rights Act, provides:

All persons within the jurisdiction 
of the United States shall have the same 
right in every State and Territory to 
make and enforce contracts, to sue, be 
parties, give evidence, and to the full 
and equal benefit of all laws and pro­
ceedings for the security of persons 
and property as is enjoyed by white 
citizens, and shall be subject to like 
punishment, pains, penalties, taxes, 
licenses, and exactions of every kind, 
and to no other. (Emphasis added)

The right to make and enforce contracts clearly includes employ­
ment contracts, and entails a ban on racial discrimination in
hirinq and promotion. Section 1981 has been uniformly held to32/ 33/
bar discrimination in employment by state and local governments

32/ See e.g. Johnson v. Cain, 5 EPD 58509 (D.Del. 1973); Suel v. 
Addington. 5 EPD 58042 (D.Alaska 1972); Strain v. Philpott, 4 EPD 
557885, 7562, 7521 (M.D.Ala. 1971); Morrow v. Crisler, 3 EPD 8119 
(S.D.Miss. 1971); London v. Florida Department of Health, 3 EPD 
58018 (N.D.Fla. 1970) .
13/ Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971); Arrington v. 
Massachusetts Bay Transportation Authority, 306 F. Supp. 1355 (D.
Mass. 1969); Glover v. Daniel, 434 F.2d 617 (5th Cir. 1970); Smiley v. 
City of Montgomery, 350 F.Supp. 451 ( M.D.Ala. 1972); West v. Board 
of Education of Prince George's County, 165 F.Supp. 382 (D.Md. 1958); 
Mills v. Board of Education of Anne Arundel County, 30 F.Supp. (D.
Md. 1938)

-36-



•

^  '  , ’ V '



34/ 35/
by private employers, and by labor unions. Plaintiff maintains 
that Section 1981 bars discrimination in employment by the federal 
government as well.

The broad language of Section 1981 manifestly includes 
within its scope all discrimination in employment by any employer, 
public or private. The class of persons protected is described in 
the all encompassing language to be "[a] 11 persons within the juris­
diction of the United States". Any attempt to restrict the literal 
scope of Section 1981 would fly in the face of this express language. 
Had Congress wished to limit the statute so as to preclude federal 
discrimination, it knew how to do so. Section 1983, 42 U.S.C., 
expressly limits its coverage to persons acting under color of state

24/ Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir. 1970), 
cert.denied 401 U.S. 948 (1971); Rice v. Chrysler Corp., 327 F.Supp.
80 ( E.D.Mich. 1971); Hackett v. McGuire Brothers Inc., 445 F.2d 442 
(3d Cir. 1971); Young v. International Tel. & Tel. Co.. 438 F.2d 737 
(3d Cir. 1971); Brown v. Gaston County Dyeing Machine Co., 457 F.2d 
1377 (4th Cir. 1972), cert, denied, 93 S.Ct 319 (1972); Boudreau v.
Baton Rouge Marine Contracting, 437 F.2d 1011 (5th Cir. 1971); Caldwell v. 
National Brewing Co.. 443 F.2d 1044 (5th Cir. 1971), cert, denied 404 
U.S. 998 (1970); Brady v. Bristol Myers, 452 F.2d 621 (8th Cir. 1972); 
Bennette v. Gravelle, 323 F.Supp. 203 (D.Md. 1971); Copeland v. Mead 
Corp.. 51 F.R.D. 266 ( N.D.Ga. 1970); Lazard v. Boeing Co.. 322 F.Supp.
343 ( D .La. 1971); Long v. Ford Motor Co., 352 F.Supp. 135 ( e .D.
Mich. 1972); Guerra v. Manchester Terminal Corp., 350 F.Supp. 529 
( S.D.Tex. 1972); Jenkins v. General Motors Corp., 475 F.2d 764 (5th 
Cir. 1973) .
—35/ Waters v. Wisconsin Steel Works, 427 F.2d 476 (7th Cir. 1970) 
cert, denied 400 U.S. 911 (1970); James v. Ogilvie, 310 F.Supp. 661 
( n Td .111. 1970); Guerra v. Manchester Terminal Corp., 350 F.Supp.
529 ( S.D.Tex. 1972). Johnson v. Goodyear Tire & Rubber Co., 349 
F.Supp. 3 ( S.D.Tex.' 1972); Jenkins v. General Motors Corp., 475 F.2d 
764 (5th Cir. 1973) .

-37-



.



law, as did a number of other post Civil War civil rights provisions. 
See e.g. 16 Stat. 140, §§ 1, 2, 3. No such limitation was placed in 
Section 1981, and no such limitation should be added to it by the 
courts.

That Section 1981 prohibits federal discrimination is placed 
beyond doubt by the decision of the United States Supreme Court in 
Hurd v. Hodge, 334 U.S. 74 (1948) and District of Columbia v. Carter. 
409 U.S. 418 (1973). Section 1981 was originally enacted as part 
of Section 1 of the 1866 Civil Rights Act, 14 Stat. 27, which pro­
vided :

[A]11 persons born in the United 
States and not subject to any foreign 
power, excluding Indians not taxed, 
are hereby declared to be citizens of 
the United States; and such citizens, 
of every race and color, without regard 
to any previous condition of slavery or 
involuntary servitude, except as a punish­
ment for crime whereof the party shall have 
been duly convicted, shall have the same 
right, in every State and Territory in 
the United States to make and enforce contracts, 
to sue, be parties, and give evidence, to 
inherit, purchase, lease, sell, hold, 
and convey real and personal property, 
and to full and equal benefit of all laws 
and proceedings for the secutiry of person 
and property, as is enjoyed by white citi­
zens, and shall be subject to like punish­
ment, pains, and penalties, and to none 
other, any law, statute, ordinance, regu­
lation, or custom, to the contrary not­
withstanding.

Section 1 protected, not only the rights now covered in § 1981, 
including the right to contract, but also the right to buy and 
own real property. Manifestly if any one of the rights covered

The criminal provisions Section 2 of the 1870 Civil Rights Act, 
i6 Stat. 140, apply only to conduct under color of state law; the 
criminal provisions of the 1866 Act apply to conduct under color 
of any, law. 14 Stat. 27.

38



-i { ‘-!1

j iwf

■



by Section 1 was protected against federal discrimination, all of
them must have been, for the enumeration of rights encompassed
draws no distinction among them. Since 1866 Section 1 of the
Civil Rights Act was divided into two sections; the provisions

JJ/regarding real property were placed in 42 U.S.C. § 1982, and the
other provisions in § 1981. This restructuring, however, involved
no change in the substance of the rights first established in 1866.

The Supreme Court has correctly noted that the scope of
§ 1981 and § 1982 is necessarily the same. In Tillman v. Wheaton
Haven Recreation Asso., 35 L.Ed. 2d 403 (1973), the Court held,

The operative language of both § 1981 and § 1982 
is traceable to the Act of April 9, 1866, c.31,
1, 14 Stat. 27. Hurd v. Hodge, 334 U.S. 24, 30-31 
(1948) . In light of the historical interrelation­
ship between § 1981 and § 1982, we see no reason 
to construe these sections differently . . .

35 L.Ed. 2d at 410-411. Since the Court had concluded that § 1982 
1 covered discrimination by private clubs, it held that § 1981 did 
as well.

in Hurd v. Hodge,334 U.S. 24 (1948), the Supreme Court 
held that Section 1982 precluded the federal courts in the District 
of Columbia from assisting housing discrimination by enforcing re­
strictive covenants. See 334 U.S. at 30-34. Manifestly if Section 
1982 barred federal discrimination, then, as in Tillman, Section 
1981 covers federal discrimination as well. The holding in Hurd 
was reaffirmed last year in District of Columbia v_.— Carter, 409 
U.S. 418 (1973).

Section 1982, which first entered 
our jurisprudence as § 1 of the Civil 
Rights Act of 1866 . . .  was enacted as 
a means to enforce the Thirteenth Amend­
ment's proclamation that " [n]either slavery

IV->// ,, . ,, shall have the same right,All citizens of the Uni enioved by white citizens thereofin every state and Territory, as is en: y d  * real and personalto inherit, purchase, lease, sell, hold, ana cunv y 
Property." - 39 -





nor involuntarily servitude . . . shall 
exist within the United States, or any
place subject to their jurisdiction."
See Jones v. Alfred H. Mayer Co.,
392 U.S. 409, 437-438 (1968). "As its 
text reveals, the Thirteenth Amendment 
is not a mere prohibition of State laws 
establishing or upholding slavery, but 
an absolute declaration that slavery or 
involuntarily servitude shall not exist 
in any part of the United States."
Civil Rights Cases, 109 U.S. 3, 20 (1883) . . .

Moreover, like the Amendment upon 
which it is based, § 1982 is not a "mere 
prohibition of State laws establishing 
or upholding" racial discrimination in 
the sale or rental of property but, rather, 
an"absolute" bar to all such discrimination, 
private as well as public, federal as well 
as state. C.F. Jones v. Alfred H. Mayer &
Co., supra, at 413. With this in mind, it
would be anomalous indeed if Congress chose
to carve out the District of Columbia as
the sole exception to an act of otherwise
universal application. And this is all the
more true where, as here, the legislative
purposes underlying § 1982 support its
applicability in the District. The dangers
of private discrimination, for example, that
provided a focal point of Congress' concern
in enacting the legislation, were, and are,
as present in the District of Columbia as
in the States, and the same considerations
that led Congress to extend the prohibitions
of § 1982 to the Federal Government apply
with equal force to the District, which is a
mere instrumentality of that Government. (Emphasis added)

409 U.S. at 422. The reasoning of Carter is fully applicable to
§ 1981. section 1981, like Section 1982, is an absolute bar to
all discrimination not limited to state action. Section 1981,
like Section 1982, was originally based on the broad prohibition
of the Thirteenth Amendment, not the narrower commands of the
Fourteenth Amendment which deal with the States. And, like
Section 1982, employment discrimination in violation of Section
1981 was and is as present in the District of Columbia and at the
hands of federal officials as it is in the States and at the hands
of state officials.

- 40





The legislative background of the 1866 Civil Rights
gives no reason to believe that Congress would have intended
to deny to newly freed slaves protection from discrimination by
federal officials. The abolitionists in control of Congress in
1866 had for a generation been anxious to abolish slavery and all
its trappings in the District of Columbia. See ten Broek, Equal

2B_/Under Law, pp. 4 1 - 5 7  ( 1 9 5 1 ). it is unlikely that Congress, having 
forbidden slavery throughout the nation, intended by Section 1 of 
the Civil Rights Act to abolish the "badges of slavery" only in 
the states and to leave them intact in the nation's capitol. See 
Jones v. Alfred H. Mayer Co.. 392 u . S .  4 0 9 , 4 3 9  ( 1 9 6 8 ) .  Congress 
also had ample reason for concern that the Federal officials of

38/ Henry B. Stanton, in an address to the Massachusetts legis­
lative urging abolition in the District of Columbia, had argued 
"Having robbed the slave of himself, and thus made him a thing, 
Congress is consistent in denying to him all the protections of 
the law as a man. His labor is coerced from him by laws of 
Congress: No bargain is made, no wage is given . . . There is
not the shadow of legal protection for the family state among the 
slaves of the District . . .  No slave can be a party before a 
judicial tribunal, . . .  in any species of action against any 
person, no matter how atrocious may have been the injury received. 
He is not known to the law as a person: much less, a person with 
civil rights . . . Congress should immediately restore to every 
slave, the ownership of his own body, mind and soul, transfer 
them from things without rights, to men with rights. . . . 
the slave should be legally protected in life and limb, in his 
earnings, his family and social relations, and his conscience." 
ten Broek, Equal Under Law, p. 46 (1951).

- 41





the Freedmen1s Bureau, established in 1865, were seriously
mistreating and exploiting the newly black former slaves.
G. Bentley, History of the Freedmen's Bureau, 77, 84, 125-132
(1955). The memory of the mistreatment of blacks by federal
officials under the Fugitive Slave Act was still fresh in the
minds of abolitionists in 1866. See J. ten Broek, Equal Under
Law, 57-65 (1951). Freedmen's Bureau agents were reported to
be more sympathetic to the desires of white Southern planters than
the needs of Freedmen. See e,g. K. Stampp, The Era of Reconstruction
133-34 (1965). By April of 1866 Congress was aware of President
Johnson's opposition to its reconstruction program, and believed
that he was actively undermining enforcement of new legislation
and dismissing federal officers who supported Congress' policies.
See M. King, Lyman Trumbull 293-95 (1965). That concern about the
conduct of federal officials is manifest in other provisions of
the 1866 Civil Rights Act, which compels federal marshalls, on pain
of criminal punishment, to enforce the Act, expressly requires that
the district attorneys and other officials be paid for enforcing

40/
the Act at the usual rates, and authorized the circuit courts, 
rather the President, to appoint commissioners with the power to 
arrest and imprison persons violating the Act.

39/ 14 stat. 28 § 5.

40./ 14 Stat. 29, §7.

- 42



■



Any possibility that Congress intended to exempt federal 
officials from coverage by the 1866 Civil Rights Act is negated by 
the express language of the Act extending its coverage to the 
territories. Territorial governments, like that of the District 
of Columbia, are but instrumentalities of the federal government, 
and in the territories it is the United States itself which is the 
sovereign. See District of Columbia v. Carter. 409 U.S. 418, 422 
(1973); United States v. City of Kodiak, 132 F.Supp. 574, 579 
(D.Ct. Alaska, 1955). Many officials in the territories, including 
judges and marshalls, were appointed directly by Washington, and all terri' 
torial officers were technically federal officials. See E.
Pomeroy, The Territories and the United States (1947); M. Farrand, 
Legislation of Congress for the Government of the Organized Terri­
tories of the United States (1896). In the mid-nineteenth century, 
when the role of the federal government was far more limited than 
it is today, federal employees were under normal circumstances con­
centrated in the District of Columbia and the territories, and it 
was in general only there that federal employees were likely 
to be in a position to deny blacks the right to make contracts, to 
enjoy equally the benefit from the protection of the law and legal 
proceedings, or to be subject to only the same pains and punishments 
as whites. The inclusion under the 1866 of persons in the territories 
represented a deliberate decision by Congress to protect freedmen 
in a region where the only officials who could interfere with their 
rights were federal officials, and is entirely incompatible with 
the notion that the Act was not to apply to federal discrimination.

The conclusion that Section 1981 forbids employment discrimina­
tion by the federal government is supported by the recent decision 
of the Fifth Circuit Court of Appeals in Penn v. Schlesinger, 6 EPD

_ 43 _



-



H9041 (1973). In Penn the plaintiff had sued the Secretary of 
Defense, alleging that he had been denied promotion because of 
his race, in violation of Section 1981. The Fifth Circuit 
reasoned:

Our decision in Sanders v. Dobbs Houses,
Inc., 431 F .2d 1097 (1970), held that Section
1981 provided a cause of action to a black 
employee allegedly discharged solely because 
of race. Thus, this Section creates a cause 
of action for employment contract discrimina­
tion against private employers. Though no 
decision directly in point has been brought to
our attention, we think it clear that the rationale 
of the Dobbs House decision applies to employ­
ment discrimination by federal officials as well 
as by private employers.

In District of Columbia v. Carter. 409 
U.S. 418 (1973), the Supreme Court said that 
Section 1982 is "an 'absolute' bar to all such 
discrimination, private as well as public, 
federal as well as state." 409 U.S. at 422.
The Court held that Section 1982 was intended 
to prohibit particular types of discrimination 
regardless of their sources. In this respect, 
Section 1982 was contrasted with Section 1983.
While the former was enacted to implement the 
principles enunciated in the Thirteenth Amendment, 
the latter legislation, enacted eleven years 
later, was based upon the Fourteenth Amendment. 
While Section 1982 prohibited discriminatory 
activities of the states.

The narrow question in this case is whether 
Section 1981 is more closely analogous to Section
1982 or to Section 1983. In our view, there is 
no doubt but that Section 1981, like its sister 
Section 1982, provides a cause of action against 
all discrimination against blacks, because of 
race or color, in the making and enforcement
of contracts. Therefore, the allegation that 
the federal government has violated the plaintiffs' 
contract rights on account of their race does state 
a cause of action under Section 1981 of the Civil 
Rights Act of 1866.

44





Slip opinion, pp. 5-6, 6 EPD, p. 6371 . Plaintiffs submit this 
conclusion is correct, and that the discrimination alleged in the 
Complaint constitutes a violation of Section 1981.

41/

41/ Penn also concluded that enforcement of Section 1981 was 
barred by sovereign immunity. Slip opinion, pp. 6-11, 6 EPD, PP 9371-72 
plaintiff contends that this conclusion was erroneous. See pp. 46-53 
infra.

45



'r ■ ?».*■ r ■



(b) The 1866 Civil Rights Act Waived Sovereign
Immunity and Created Jurisdiction Over This Action

The 1866 Civil Rights, in addition to forbidding employ­
ment discrimination in section, provided in Section 3

That the district courts of the United 
States, within their respective dis- 
districts, shall have . . . cognizance 
. . . concurrently within the circuit 
courts of the United States, of all 
cases, civil and criminal, affecting 
persons who are denied . . . any of 
the rights secured to them by the 
first section of this act. . .

14 Stat. 27. This provision is now incorporated in 28 U.S.C.
§1343, which provides in part,

The district courts shall have original 
jurisdiction of any civil action 
authorized by law to be commenced by 
any person:

*  *  *

(4) To recover damages or to secure 
equitable or other relief under any Act 
of Congress providing for the protec­
tion of civil rights, including the 
right to vote.

The literal language of Section 3 and 28 U.S.C. §1343(4) 
clearly encompasses jurisdiction to afford relief against violations 
of §1981 by federal officials. Section 3 authorizes jurisdiction 
over "all" civil causes involving denials of "any" of the 
rights secured by Section 1, and Section 1343(4) confers juris­
diction to enforce "any" civil rights act. Nothing in either 
statute suggests any limitation on this grant of jurisdiction, 
or any desire to make enforceable only some of the rights

46 -





established by Section 1. If Congress had wanted to limit 
jurisdiction to discrimination involving state action, it knew 
how to do so. Sections 2 and 3 of the 1870 Civil Rights Act 
and Section 1 of the 1871 Civil Rights Act expressly limit their 
coverage to action taken under color of State law, as does 28 
U.S.C. §1343(3). No such limitation is to be found in Section 2 
of the 1866 Act or Section 1343(4), and its absence must be 
taken as a Congressional intent to do just what those provisions 
said —  confer jurisdiction over all violation of §1981, regard­
less of whether the violation may be by state officials, federal 
officials, or private parties.

When Congress establishes by statute a legal right, 
including a right against the federal government, it is generally 
presumed to have intended that the right would be enforceable.
In Minnesota v. United States, 305 U.S. 382 (1939), Minnesota 
had sued the United States to condemn certain Indian land. The 
only applicable federal statute authorized state suits to con­
demn Indian land, but did not say against whom such suits could 
be brought. The United States argued that it could not be sued 
since it had not waived sovereign immunity. Noting that a suit 
against the Indians alone would not have been adequate to confer 
title to the property since it was held in trust by the United 
States, the Court held "that authorization to condemn confers 
by implication permission to sue the United States." 305 U.S. 
at 388, n.5. See also United States v. Hellard, 322 U.S. 363

_ 47





(1944). Similarly in United States v. Jones, 109 U.S. 513
(1883), the Court was called upon to construe a statute which 
directed the Secretary of War and his agents, prior to taking 
any land, to first pay such compensation as may have been ascer-- 
tained in the mode provided by the laws of the state." 109 U.S. 
at 515. The United States urged that, although Congress had 
directed such payment, it was immune from any suit to force pay­
ment. The Supreme Court held otherwise, and ruled that the 
statute constituted a valid waiver of sovereign immunity author­
izing suits against the United States in state court. 109 U.S. 
at 519-521. The grant of jurisdiction in Section 3 of the 1866 
Civil Rights Act is more express than that in Minnesota v. United 
States and United States v. Jones, and such a waiver of immunity 
is equally essential to render meaningful the creation of the 
substantive right involved.

It is particularly unlikely that the Congress which 
enacted the 1866 Civil Rights Act could have intended that, to 
the extent that federal officials violated its provisions, 
aggrieved citizens would have no legal remedy. The abolitionists 
who finally won control of the Congress and many states in the 
1860's and 1870's had long maintained that the rights described 
in Reconstruction Amendment and legislation were not new, but 
already existed by virtue of the privileges and immunities clause 
and the Bill of Rights. See generally ten Broek, Equal Under 
Law (1951); Graham, "The Early Anti-Slavery Backgrounds of the 
Fourteenth Amendment," 1950 Wis. L. Rev. 479; Graham, The

48 _



• l /■;- - Is* . i;

- ' y

, <f i :A ' AAA

■■

-> I r  t. \ • ---



'Conspiracy Theory' of the Fourteenth Amendment," 47 Yale L.J.
371 (1938). The purpose of such Amendments and legislation 
was, above all, to make those rights enforceable♦ The 1866 
Civil Rights Act, enacted before the Fourteenth Amendment, was 
entitled "An Act to protect all Persons in the United States 
in their Civil Rights, and Furnish the Means of their Vindication." 
14 Stat. 27 (Emphasis added) Congressman Wilson, speaking in 
favor of the 1866 Civil Rights Bill, explained:

Mr. Speaker, I think I may safely affirm 
that this bill, so far as it declares the 
equality of all citizens in the enjoyment 
of civil rights and immunities, merely 
affirms existing law. We are following the 
Constitution. We are reducing to statute 
form the spirit of the Constitution. We 
are establishing no new right, declaring no 
new principle. It is not the object of this 
bill to establish new rights, but to protect 
and enforce those which already belong to 
every citizen. Cong. Globe, 39th Cong. 1st 
Sess. 1117.

To hold the 1866 Civil Rights Act unenforceable against the federal 
government would be to frustrate the manifest intent of Congress. 
And, since federal discrimination was already forbidden by the 
Fifth Amendment, to render the Act unenforceable against federal 
defendants would be to render the Act, in this regard, nugatory.

The Congress which had approved the 1866 Act had no 
fondness for sovereign immunity; only three years earlier, led 
by many of the prominent abolitionists, it had enacted the first 
comprehensive waiver of federal immunity in an attempt to end 
the long standing practice of seeking redress from Congress 
through private bills. President Lincoln, in his first State of

- 49



• : r ,  a h  6 »  . '

-

Oil s  li-; ’ . i;

■

s O S lS  e ^ i ' ^ o S  ' SO"! > 0  »>'?.? .O:



the Union message, had urged such abolition:
It is important that some more convenient 
means should be provided, if possible, for 
the adjustment of claims against the Govern­
ment especially in view of their increased 
number by reason of the war. It is as much 
the duty of Government to render prompt 
justice against itself in favor of citizens 
as it is to administer the same between 
private individuals. The investigation and 
adjudication of claims in their nature 
belong to the judicial department.42/

The debates on this proposal centered on whether or not the federal 
government was already providing a prompt and just resolution of 
claims against it, the procedure until that time being for Con­
gress to enact a special appropriation in the amount it felt 
fair. Proponents of immunity urged such justice was already 
being done. See Cong. Globe, 38th Cong., 1st Sess. 1672. A 
majority of the Congress, however, concluded otherwise. Congress­
man Pendleton responded:

My colleague on the committee has told 
us today, that, in theory, the Government 
is always willing to do justice to the 
citizen, that it is always willing to do 
that which equity and justice requires it 
to do. Now, sir, that is very good in 
theory, but it is very bad in practice, 
and when that gentleman has had experience 
in examining the claims brought against 
this Government year after year . . .  he 
will find that there are innumerable claims 
on the calendar which have been examined 
and re-examined session after session . . .
If the Government of the United States owes 
a debt to a citizen of the United States, 
why should that citizen be forced to come

42/ Schlesinger and Israel, The State of the Union Messages 
of the Presidents, v. 2, 1060 (1966).

50





to Congress year after year, and spend 
his time and his money in besieging 
individual members, in order to show 
to them the justice of his claim, depend­
ing, in the end, even in the justest 
case, not upon its merits, but upon 
their patience to hear him fully, and 
their imparitiality to judge fairly.
Cong. Globe, 38th Cong. 1st Sess. 1675.

Congressman Bingham, the author of the 1866 Civil Rights Act, 
urged that the abolition of immunity would end the injustice of 
denying relief to citizens with legitimate grievances, and the 
corruption of the Congress by lobbyists pressing dubious claims. 
Id. at 1674. It is difficult to believe that Congress decided, 
only three years later, to require citizens aggrieved by viola­
tions of their rights under the 1866 Act to resort once again 
to petitioning Congress for private appropriation bills.

It is true, but not particularly illuminating, that 
the United States can only be sued if there is an express waiver 
of sovereign immunity. This rule precludes only unintended 
waivers which might otherwise derive from inartful legislative 
drafting. In deciding whether Congress intended to waive 
immunity, resort must be had to the usual methods of construc­
tion. As the Supreme Court explained in Indian Trading v.
United States, 350 U.S. 61 (1955),

Of course, when dealing with a statute 
subjecting the Government to liability 
for potentially great sums of money, 
this Court must not promote profligacy 
by careless construction. Neither should 
it as a self constituted guardian of the 
Treasury import immunity back into a 
statute designed to limit it.

350 U.S. at 69. In construing statutes alleged to constitute

51





waivers of immunity the Supreme Court has consistently con­
sidered such traditional factors as "the plain import of the 
statutory language," United States v. Muniz, 374 U.S. 150, 158 
(1963), "the overall congressional purpose," Honda v. Clark,
386 U.S. 484, 501 (1967), and legislative history. United States

42/v. Sherwood, 312 U.S. 584, 590 (1941). Even where Congress
"have not expressed its will in words," "[t]he congressional 
will must be divined, and by a process of interpretation which, 
in effect, is the ascertainment of policy immanent not merely 
in the single statute from which flow the rights and responsi­
bilities of [the United States], but in a series of statutes. 
. . . "  Keifer & Keifer v. Reconstruction Finance Corp., 306 
U.S. 381, 389 (1938).

While there may at one time have been a certain con­
strictive approach to purported waivers of immunity, the Supreme 
Court has not sanctioned the use of different standards in 
ascertaining the presence of an express waiver of immunity dif­
ferent from those used in other waiver cases. Recent decisions 
considered "the general trend toward increasing the scope of 
waiver by the United States of its immunity from suit," United 
States v. Yellow Cab Co., 340 U.S. 543, 550 (1950), have asserted

43/ Other decisions considering such factors include American 
Stevedore, Inc, v. Porrello, 330 U.S. 446 (1947); Warren v. 
United States. 340 U.S. 523 (1951); McMahon v. United States, 
342 u.S. 523 (1951); Johanson v. United States, 343 U.S. 427 
(1951); United States v. District Court, 401 U.S. 520 (1971); 
United States v. District Court, 401 U.S. 527 (1971).

- 52



'
-

■ t> . E
' ' :



that when authority to sue is given "it is to be liberally 
construed".United States v. Shaw, 309 U.S. 495, 502 (1939), 
and concluded that, "because the doctrine gives the government 
a privileged position, it has been appropriate confined-" Keifer 
& Keifer v- Reconstruction Finance Corp.. 306 U.S. 381, 388 (1938) 
See also Honda v. Clark, 386 U.S. 484, 501 (1967). The Supreme 
Court in sovereign immunity cases has cautioned against "an 
unduly restrictive interpretation," 324 U.S. 214, 222 (1945), 
declined to "whittle down" a statute "by refinements," United 
States v. Yellow Cab Co.. 340 U.S. 543, 550 (1950), and refused 
"to read exemption into [an] Act beyond those provided by Congress 
Rayonier v. United States. 352 U.S. 315, 320 (1957).

Plaintiff submits that the manifest intent of Congress 
that the 1866 Civil Rights Act be enforceable in the courts, 
and the broad all inclusive language of Section 3 of the Act 
and of 28 U.S.C. § 1343(4), compel the conclusion that Congress 
intended to waive sovereign immunity so that aggrieved citizens 
could sue the United States when it engaged in racial discrimina-

44/tion.

44/ The lower federal courts are divided as to whether sections 
1981 and 1343(4) create such an enforceable right, and the 
opinions on this question are not particularly illuminating. 
Compare Penny, Schlesinger, 6 EPD 1 9041 (5th Cir. 1973) with 
Spencer v. Richardson, 6 EPD f8906 (D.D.C. 1973).

-53-



-

* D  -  :'V

'

\



VI• THIS ACTION AGAINST THE INDIVIDUAL DEFENDANTS 
DOES NOT CONSTITUTE A SUIT AGAINST THE UNITED 
STATES
Whatever immunity may be enjoyed by the United States 

and its Departments, eo nomine, that immunity has never extended 
to federal employees who act in excess of their authority or in 
violation of the Constitution. This long established maxim of 
federal jurisprudence derives from Marbury v. Madison, 5 U.S.
(1 Cranch) 137 (1803) where a writ of mandamus was sought to 
compel the Secretary of State to deliver to plaintiff his com­
mission as justice of the peace. The Court expressly rejected 
the suggestion that the Secretary of State could not be sued 
because he was an important federal official.

It is not by the office of the 
person to whom the writ is directed, 
but the nature of the thing to be 
done, that the propriety or impro­
priety of issuing a mandamus is to be 
determined. Where the head of a depart­
ment acts in a case, in which executive 
discretion is to be exercised; in which 
he is the mere organ of executive will; 
it is again repeated, that any applica­
tion to a court to control, in any res­
pect, his conduct would be rejected 
without hesitation.

But where he is directed by law to do 
a certain act affecting the absolute rights 
of individuals, in the performance of which 
he is not placed under the particular direc­
tion of the President, and the performance 
of which the President cannot lawfully forbid, 
and therefore is never presumed to have for­
bidden; as for example, to record a commission, 
or a patent for land, which has received all 
the legal solemnities; or to give a copy of 
such record; in such cases, it is not per­
ceived on what ground the courts of the 
country are further excused from the duty 
of giving judgment that right be done to 
an injured individual, than if the same 
services were to be performed by a person 
not the head of a department. 5 U.S. 166,
170-171.

54



I r - ' t  ‘fe;3 :;3 .

'

%



A similar question arises in view of the immunity 
from suit conferred upon the states by the Eleventh Amend­
ment, and it has been similarly answered. In Ex parte Young,
209 U.S. 123 (1908), the stockholders of a railroad company 
sued the Attorney General of Minnesota, seeking an order re­
straining him from enforcing state regulations claimed to violate 
the Fourteenth Amendment. The Attorney General urged the action 
was in effect one against the state, and thus barred by the 
Eleventh Amendment. The Supreme Court rejected this contention, 
and held that state officials could be enjoined from taking actions 
which would violate the Constitution,

The act to be enforced is alleged 
to be unconstitutional; and if it be so, 
the use of the name of the state to en­
force an unconstitutional act to the 
injury of complainants is a proceeding 
without the authority of, and one which 
does not affect, the state in its sov­
ereign or governmental capacity. It is 
simply an illegal act upon the part of 
a state official in attempting, by the 
use of the name of the state, to enforce 
a legislative enactment which is void 
because unconstitutional. If the act 
which the state attorney general seeks to 
enforce be a violation of the Federal 
Constitution, the officer, in proceed­
ing under such enactment, comes into 
conflict with the superior authority 
of that Constitution, and he is in that 
case stripped of his official or repre- sentative character and is subjected in his 
person to the consequences of his indivi­
dual conduct.

209 U.S. at 159-160. The limitation on the immunity of state 
officers, delimited in Ex Parte Young,, is the same limitation 
applicable to federal officials. See Philadelphia Co. v. Stimson, 
223 U.S. 605, 621 (1912).

The established standard which derives from these cases 
is that federal officers may be sued if either (1) their actions

- 55



-4 ,n  ,*

t

- .

■



are beyond the authority conferred upon them by state, regulation, 
or other order, or (2) although the actions are within the scope 
of the authority of the officials, the authority itself or the 
manner in which it was exercised is unconstitutional. See Dugan v. 
Rank, 372 U.S. 609, 621-624 (1963); Malone v. Baldwin. 369 U.S..
643 (1962); Larson v. Domestic and Foreign Commerce Corp., 337 
U.S. 643 (1949). If the action at issue is unlawful, it may be 
enjoined even though the activity may involve large numbers of 
federal employees, substantial sums of money, or policies sup­
ported by high public officials. The operation of a segregated 
school system in the District of Columbia involved thousands of 
federal employees and millions of tax dollars, and the seizure 
of the steel mills in 1952 was directly ordered by the President him­
self, yet both these activities were enjoined by the federal 
courts. Bolling v. Sharpe. 347 U.S. 497 (1954); Youngstown 
Sheet & Tube Co. v. Sawyer. 343 U.S. 579 (1952). These cases 
were properly deemed suits against individuals rather than 
against the United States,not because the issues were unimportant, 
or the relief in some metaphysical sense "negative" rather than 
"affirmative", but because, since the activity involved was un­
constitutional, that activity was ipso facto not the activity 
of the sovereign. An order enjoining racial discrimination on any 
scale cannot "operate against the Government", for when such dis­
crimination occurs it is an act of individuals but not the govern­
ment.

This Circuit has consistently rejected out of hand 
contentions by the United States that its officers were protected 
by sovereign immunity when they act in violation of the Constitution 
or in excess of their statutory authority . In Wasson v. Trowbridge,

56



i,; ' * - ' J *•* S

%  •

'



382 F.2d 807 (2d Cir. 1967), the plaintiff sued the Secretary 
of Commerce to challenge certain disciplinary actions taken 
by the Merchant Marine Academy alleging that the defendants 
had failed to afford him certain procedural protections required 
by the Due Process clause of the Fifth Amendment. This Court 
held, "Indisputedly the District Court had jurisdiction to 
determine whether the procedure applied to Wasson was consti­
tutionally sufficient. Ex Parte Young, 209 U.S. 123" 382 
F.2d at 811 (Moore, J.). In Leonhard v. Mitchell, 473 F.2d 
709 (2d Cir. 1973), the plaintiff claimed the Attorney General 
and other federal officials had violated his right to raise 
his children as he saw fit, in violation of the Due Process 
clause. The United States urged without success that the action 
be dismissed on the ground that it was in reality a suit "against 
the government,"

"Sovereign immunity is no bar . . .
[where] the complaint alleges that agents 
of the Government have exceeded their con­
stitutional authority while purporting to 
act in the name of the sovereign." . . .
See Dugan v. Rank, 372 U.S. 609, 621-622 
. . . Larson v. Domestic and Foreign Commerce 
Corp., 337 U.S. 682, 689-691. . . . Since
Leonhard's complaint alleged that the defendants 
participation in the secretion of his children 
abridged rights secured to him by the Fifth 
Amendment, the action did not, improperly name 
these defendants.

473 F.2d at 712, n.2 (Kaufman, J.). In Toilet Goods Association 
v. Gardner. 360 F.2d 677 (2d Cir. 1966) aff'd 387 U.S. 158, 167, 
the plaintiffs sued the Secretary of Health, Education and Welfare 
to invalidate certain regulations which they claimed he lacked 
authority to issue. The United States urged that the suit was 
barred by sovereign immunity. Judge Friendly commented,

57





We need not discuss the text the surprising 
contention that an action for a declaration 
that federal regulatory officials have acted 
in excess of their authority constitutesjan 
unconsented suit against the United States.
The contrary is clearly established by 
Philadelphia Co. v, Stimson, 233 U.S. 605, 
619-620, . . . and indeed follows inevitably 
from Ex Parte Young, 209 U.S. 123 . . .; 
law officers of the Government ought not to 
take the time of bush judges or of opposing 
parties by advancing an argument so plainly 
foreclosed by Supreme Court decisions.

360 F.2d at 683, n.6. See also Berk v. Laird, 429 F.2d 302, 306
(2d Cir. 1970) .

Not every wrongful act by a federal official is either 
unauthorized or unconstitutional and thus without immunity. A 
federal officer who breaks or violates a contract with a private 
party may have express and constitutional authority to do so, 
and thus be immune from suit. Larson v. Domestic and Foreign 
Commerce Coro.. 337 U.S. 682 (1949). A federal officer may not 
ordinarily be enjoined from action constituting ordinary trespass; 
the taking of private property for public use is widely authorized, 
and the only constitutionally required redress is just compensation. 
See Dugan v. Rank. 372 U.S. 609 (1963); Malone v. Baldwin, 369 
U.S. 643 (1962).

In the instant case, however, the complaint alleges 
that the individual defendants took actions in excess of their 
authority and in violation of the Constitution. The federal 
officials sued by plaintiff had no authority to consider plain­
tiff's race in passing on his applications for promotion, for 
they are forbidden to do so by statute, regulation, and Executive 
Order, and any attempt to authorize consideration of race or color 
would be void under the Fifth Amendment. If, as alleged, the 
individual defendants did deny plaintiff promotions because

- 58



,



of his race, they did so — , not as agents of the United States
cloaked with its immunity —  but as private individuals on an 
invidious frolic and detour of their own, and it is those individuals 
not the plaintiff, who are interfering with the administration of 
official government policy. Settle v. E.E.O.C., 5 EPD, ? 8100, p. 
6989 (S.D. Tex. 1972). Whether such determination has occurred is 
a question of fact to be determined by the District Court. But
when discrimination exists within the federal government and 
individuals bring actions such as these to prevent it, such actions - 
far from being "against the United States" —  are in reality suits 
by private attorneys general on behalf of the United States to bring 
those guilty of discrimination back into conformity with federal law. 
Compare Newman v. Piggie Park Enterprises, 390 U.S. 900 (1968).

If this were an action alleging racial discrimination in 
employment by a state, a defense of sovereign immunity would 
necessarily fail. The immunity conferred upon the states by the 
Eleventh Amendment does not, of course, protect a state official 
guilty of unconstitutional racial discrimination. Griffin v. County 
School Board of Prince Edward County, 377 U.S. 218, 228 (1964).
State officials practicing discrimination in employment have been 
repeatedly held to lack sovereign immunity. Board of Trustees of 
Arkansas A & M College v. Davis, 396 F.2d 730, 737-734 (8th Cir.



.

'

■v :* ■



1968; Carter v. Gallagher, 452 F .2d 315 (8th Cir. 1971); Federal 
courts have consistently taken jurisdiction over litigation against 
state agencies and officials to resolve allegations of racial 
discrimination in hiring on promotion. See, e.gu, Castro v, Beecher, 
452 F . 2d 315 (8th Cir. 1971); N.A.A.C.P. v. Allen. 340 F. Supp.
703 (M.D. Ala. 1972); Johnson v. Cain, 5 EPD 5 8509 (D. Del. 1973); 
Suel v. Addington, 5 EPD f 8043 (9th Cir. 1972); Bennett v. Gravelle, 
4 EPD 5 7566 (4th Cir. 1971); Strain v. Philpott, 4 EPD

7885, 7562, 7521 (M.D. Ala. 1971); Morrow v. Crisler, 3 EPD 
18119 (S.D.Miss. 1971); London v. Florida Department of Health,
3 EPD 18018 (N.D.Fla. 1970). The Constitution places upon the 
states a legally enforceable obligation to hire and promote 
employees without discriminating on the basis of race; "it would 
be unthinkable that the same Constitution would impose a lesser 
duty on the federal Government." Bolling v. Sharpe, 347 U.S.
497, 500 (1954); see Watkins v, Washington, 3 EPD § 8291, p. 6988 

(D.D.C. 1971).
Jurisdiction over an action against such individuals is

conferred on the district court by 28 U.S.C. § 1361, 28 U.S.C. § 1343,
45/

and 28 U.S.C. § 1331 to enforce 42 U.S.C. § 7151, 42 U.S.C. § 1981, 
the Fifth Amendment, 5 C.F.R. § 713, and Executive Order 14478.
Relief in litigation under Dugan and Larson is traditionally limited

45/ Regarding the allegation of jurisdictional amount, see n.25, 
supra. Jurisdiction under 1331 over federal employment discrimination 
was upheld in Palmer v, Rogers, 6 EPD, f 8822, p. 5493 (D.D.C. 1973), 
see also Cartright v. Rensor, 325 F. Supp. 797, 808 (E.D.N.Y. 1971).

-60-





to equitable relief rather than damages; back pay, however, is an 
inextricable part of the equitable remedy of reinstatement. NLRB_v. 
Jones. & Laughlin Steel Corp., 301 U.S. 1, 98 (1937); Harkless v, Swft»nv 
independent School District. 427 F.2d 319, 324 (5th Cir. 1970). The 
district court in Penn v. Schlesinger expressly upheld an award of

46/back pay under Larson, 5 EPD, f 8404, p. 7021-22 (M.D. Ala. 1972).
See also Watkins v. Washington. 3 EPD f 8291, 5 EPD, ff 6981, 8479 
(D.D.C. 1973) .

CONCLUSION

The complaint in this action alleges that the defendants have 
discriminated against plaintiff because of his race. The allegations, 
if true, constitute a violation of the Constitution, of federal law, 
and of the regulations of the Civil Service Commission. An injustice 
of the sort complained of is of the utmost gravity in our constitutional 
system. Had this case involved employment discrimination by a 
private employer or a state agency, no federal court would have 
hesitated to assume jurisdiction.

This case does not involve any of the factors which might militate 
against assumption of federal jurisdiction. Plaintiff does not seek 
to circumvent non-judicial procedures; he has exhausted his 

administrative remedies. There are no relevant state court proceedings 
in favor of which this Court might abstain. No question of federat­

es/ This aspect of the decision was reversed on appeal, 6 EPD, p.
9041.

-61-



.

•ir' ■ " - '



state relations are involved, and no considerations of comity come 
into play. Plaintiff asks only that the federal court enforce 
the principle announced in Marbury v. Madison by Chief Justice
Marshall:

The government of the United States has 
been emphatically termed a government of laws, 
not of men. It will certainly cease to deserve 
this high appellation, if the laws furnish no 
remedy for the violation of a vested legal right.
5 U.S. (1 Cranch) 138, 163 (1803).

The common law doctrine of sovereign immunity, as any statute,
cannot constitutionally be asserted or applied in such a manner
as to obstruct or preclude judicial vindication of substantive
constitutinal rights. See Simons v. Vinson, 394 F.2d 732 (5th
Cir. 1968). It is the established practice of the Supreme Court
"to sustain the jurisdiction of federal courts to issue injunctions
to protect rights safeguarded by the Constitution," and the federal
courts have traditionally been alert "where federally protected
rights have been invaded . . . to adjust their remedies so as to
grant the necessary relief." Bell v. Hood, 327 U.S. 678, 683-84
(1946).

For these reasons, Appellant urges that the district court's 
order dismissing this action be reversed, and that the case be 
remanded to that court for a hearing on the merits.

Respectfully submitted,

62





JEFF GREENUP
Greenup & Miller 
200 West 135th Street 
Suite 218
New York, New York 10030

JACK GREENBERG 
JAMES M. NABRIT, III 
JOHNNY J. BUTLER 
JOSEPH P. HUDSON 
ERIC SCHNAPPER

10 Columbus Circle 
Suite 2030
New York, New York 10019 

Attorneys for Plaintiff-Appellant

63



r







FOR THE SECOND CIRCUIT

No. 73-2628

CLARENCE BROWN,
Plain t if f-Appe iian t;,

GENERAL SERVICES ADMINISTRATION, ec -al.,
De fendant s-AppeIlee s.

Appeal
For

From The United States District Court 
the Southern District or New York

REPLY BRIEF FOR APPELLANT

JEFF GREENUP
Greenup & Miller 
200 West: 135th Street 
Suite 218
New York, N.Y. 10030

JACK GREENBERG 
JAMES M. NAERIT, III 
JOHNNY J. BUTLER 
JOSEPH P. HUDSON 
ERIC SCHNAFPERv/

1.0 Columbus Circle 
Suite 2030
New York, N.Y. 10019

Attorneys for Plaintiff-Appellant





TABLE OF CONTENTS

1. This Appeal May Not Present a Genuine
Case Or Controversy ............................  1

2. Title VII Does Not Pre-empt The Court's
Jurisdiction Under Other Federal Statutes ....  11

P a g e

l





TABLE OF AUTHORITIES

CASES
Page

Alexander v. Gardner-Denver Co., 39 L.Ed. 2d
147 (1974) ........................................

Ballard v. Laird, 6 EPD 5[ 8793 (S.D. Cal. 1973) ....
Brady v. 3ristol-Meyers, Inc., 459 F.2d 621

(8th Cir. 1972) ...................................
Cafeteria Employees v. McElroy, 367 U.S. 866

(1961) .............................................
Christian v. New York State Department of Labor,

42 U.S.L.W., 4181, (1974) ............. ......
Cole v. Young, 351 U.S. 536 (1956) ■.................
Congress of Racial Equality v. Commissioner,

270 F.Supp. 537 (D. Md. 1967) ...................
Ex Parte Young, 209 U.S. 123 (1908) ................
Feiger v. Warner, 7 EPD 5 9140 (S.D. Cal. 1974) ....
Gnotta v. United States, 415 F.2d 1271

(8th Cir. 1969) ...................................
Greene v. McElroy, 360 U.S. 474 ....................
Hackley v. Johnson, 360 F.Supp. 1247

(D.C. Cir. 1973)...................................
Harrison v. Butz, 5 EPD 51 8632 (D.D.C. 1973) ......
Henderson v. Defense Contract Administration 

Services Region, 7 EPD 51 9058
(S.D.N.Y. 1974) ...................................

Hill-Vincent v. Richardson, 5 EPD 51 8639
(N.D. 111. 1973) ..................................

J.alil v. Hampton, 4 EPD 5[ 7706 (D.C.C. 1972 ........
Johnson v. Froelhke, 5 EPD 51 8638 (D. Md. 1973) ....
Johnson v. Lybecker, 7 EPD 51 9191 (D- Ore. 1974) ...

Long v. Ford Motor Co. ____F.2d____ ,/■ 7 EPD
5[ 9290, p . 7334 (6th Cir. 1974 ...................

14, 16
4, 6

7, 11 

4

5, 6, 8
4

2
3 
7

2
5

7
7

7

7
4 
7 
7

11

li





Macklin v. Spector Freight System, Inc., 478
F . 2d 979, 993 (D.C. Cir. 1973) .................  11, 12

Mow Sun Wong v. Hampton, 333 F.Supp. 527
(N.D. Cal. 1971)   3

Nimtz v. Berzak, 7 EPD H 9273 (E.D. La. 1974) ....  7
Penn v. Schlesinger, 490 F 2d 700 (1973) .......... 12
Peters v. Hobby, 349 U.S. 331 (1955) ..............  5
Sanders v. Dobbs Houses, Inc., 431 F.2d 1097

(5th Cir. 1970) ..................................  11, 12, 13
Service v. Dulles, 354 U.S. 363 (1957) ............. 4, 5
Society for Individual Rights v. Hampton,

6 EPD 51 8934 (N.D. Cal. 1973) ..................  5, 6
Sperling v. United States of America, 7 EPD

51 9274 (D.N.J. 1974)   6
Vitarelli v. Seaton, 359 U.S. 535 (1959) .......... 3, 4, 5
VJalker v. Kleindienst, 357 F.Supp 749

(D.D.C. 1973)     7
Waters v. Peterson, 6 EPD 51 8900 (D.C. Cir. 1973) . 4,. 6
Waters v. Wisconsin Steel Works of Int11

Harvester Co., 427 F.2d 476, (7th Cir. 1970),
Cert, denied 400 U.S. 911 (1970) ...............  11/ 12

Williams v. Zuckert, 371 U.S. 531 (1963) .......... 4
Young v. International Telephone & Telegraph,

438 F . 2d 757 (3d Cir. 1971) ..................... 7, 11, 13

Table of Authorities (Continued)
Page

iii



. '■ . V-V.

;:\V.

■

vysiv;.-: ,? . p

■



Page

LEGISLATIVE MATERIALS

H. Rep. 92-238 (June 2, 1971) reprinted
at Legislative History 61, 82-86; S. Rep.
415 (October 28, 1971) reprinted at Legislative
History 410 .........................................  13, 15

H. Rep. 1746 ............................................ 13
110 Cong. Rec. 13650-13652 (1964) ..................... 12
Hruska Amendment, Legislative History of the 

Equal Employment Opportunity Act of 1972
at 1832 .............................................. 13

5, 6,
Administrative Procedure Act ..........................  7, 9, 12
Civil Rights Act of 1871 ...............................  14
Civil Rights Act of 1866 ..............................  7, 9, 14
Civil Rights Act of 1964 ..............................  12
Mandamus Act, 28 U.S.C. § 1361 ......... 5, 6, 7, 9, 12
Tucker Act, 28 U.S.C. § 1346 ........... 6, 7, 9, 12

28 U.S.C. § 1331 .................................. 3 , 4, 9
42 U.S.C. § 1981 .................................. 12, 14
42 U.S.C. § 1983 .................................. 12
42 U.S.C. §2000e-16 (e) ...........................  14, 15

/

IV



>.• ■->- " ' ‘I'

'

' ■: . ■



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

No. 73-2628

CLARENCE BROWN,
Plaintiff-Appellant 

-v-
GENERAL SERVICES ADMINISTRATION, et al.,

Defendants-Appellees .

Appeal From The United States
J j l S L X '  i U L  U O U i  * 1 • '  ■* -1— 1-s V"\u i c i  i i

New York

REPLY BRIEF FOR APPELLANT

Appellant submits this Reply Brief in support of 
his appeal urging reversal of the decision of the District 
Court.

1 - This Appeal May Not Present A Genuine Case or 
Controversy

In the Defendants-Appellees’ Brief the United 
States Attorney has urged that the District Court lacked 
jurisdiction over this action and that it was therefore 
properly dismissed. The conduct of the United States in 
other similar litigation, and the recent testimony of high 
Justice Department and Civil Service officials, strongly





suggests that the position taken by theU.S. Attorney in 
this case is not in fact the position of the United States 
and would not be asserted by the Solicitor General on 
appeal. It is quite likely that the dispute apparent on 
the face of the briefs is only between Appellant and the 
U.S. Attorney, and that controversy between Appellant and 
the United States may be different or non-existent. Under 
such circumstances it would be inappropriate for this Court 
to decide this case until it is given a definitive state­
ment as to the position of the United States on the issues 
presented by this appeal.

The U.S. Attorney maintains in his brief that the
federal courts have no jurisdiction other than under Title
Y U  to hear a claim of racial discrimination in employment

1/
against the federal government. Both the Chairman of the 
United States Civil Service Commission and the Assistant 
Attorney General of the United States have recently testified 
before congressional committees that such jurisdiction does 
exist. See Brief for Appellant, pp. 8-12. The U.S. Attorney 
relies in his brief on two decisions expressly disavowed by 
the Chairman of the Civil Service Commission in 1971, Gnotta 
v. United States, 415 F.2d 1271 (8th Cir. 1969) and Congress 
of Racial Equality v. Commissioner, 270 F.Supp. 537 (D. M d .
1967). See brief for Appellant, p. 10. The U.S. Attorney

1/ The Defendants also urge that, if such jurisdiction^does 
exist, it is only for a limited review of the government's 
administrative determination, not a de novo proceeding. The^ 
Court is not called upon to decide the scope of any such review, 
since that question was not decided by the District Court and 
is not presented by this appeal.

-2-





does not assert that either the Attorney General or the 
Civil Service Commission have themselves decided to reverse
the positions that were taken in congressional testimony
from 1970 to 1972.

Appellant urges that there are several distinct 
federal statutes that authorize judicial review of claims 
of illegal or unconstitutional treatment of federal employees. 
Appellant's Brief, pp. 13-60. The U.S. Attorney denies that 
any of these statutes confer jurisdiction to review such 
claims. Defendant-Appellees' Brief, pp. 19-30. In other 
actions regarding federal employees both the Solicitor 
General and other U.S. Attorneys have conceded that federal 
jurisdiction is created by these statutes.

Appellant urges that jurisdiction over suits 
against individual federal officials, though not against 
the United States eo nomine, is conferred by 28 U.S.C.
§ 1331. See Brief for Appellant, p. 60. The U.S. Attorney 
urges that section 1331 cannot create such jurisdiction, 
arguing that a suit against the officials in their official 
capacities is barred by sovereign immunity, a position con­
sistently rejected by the courts from Ex Parte Young, 209 
U.S. 123 (1908) to the present day. See Mow Sun Wong v.
Hampton. 333. F.Supp. 527, 529-30 (N.D. Cal. 1971). In at 
least five Supreme Court cases in recent years federal em­
ployees have litigated the legality of federal employment 
Practices, alleging jurisdiction to sue the responsible 
government officials under 28 U.S.C. § 1331. In each of 
these cases the Solicitor General declined to contest the 
existence of federal jurisdiction. Vi tare H i  v. Seaton,

-3-





359 U.S. 535 (1959) (Violation of Fifth Amendment due 
process rights); Service v. Dulles, 354 U.S. 363 (1957) 
(Violation of Department regulations) Cafeteria Employees 
v. McBlroy, 367 U.S. 886 (1961) (Violation of Fifth Amend­
ment due process rights); Cole v. Young, 351 U.S. 536 (1956) 
(Violation of Federal statute); Williams v. Zuckert, 371 
U.S. 531 (1963) rehearing granted 372 U.S. 765 (1963) 
(Violation of Fifth Amendment due process rights). Within 
the last year the U.S. Attorneys for the Southern District 
of California and the District of Columbia have declined 
to contest jurisdiction in § 1331 cases involving sex dis­
crimination, discrimination against aliens,violations of 
First Amendment rights. Ballard v. Laird, 6 EPD 5( 8793 
(S.D.Cal. 1973); Jalil v. Hampton, 4 EPD 5(7706 (D.C.C. 1972); 
Waters v. Peterson, 6 EPD 5(8900 (D.C.Cir. 1973). The posi­
tion taken by the Solicitor General and the U.S. Attorneys 
in these cases is clearly inconsistent with the position 
asserted by the U.S. Attorney in the instant case that section 
1331 does not authorize actions against federal officials re­
garding unlawful employment practices.

Appellant also urges that jurisdiction over his 
claim exists under the Administrative Procedure Act. Appel­
lant's Brief, pp. 21-28. The U.S. Attorney urges that the 
Administrative Procedure Act cannot be invoked in a federal 
employment case such as this. Defendants' Brief, pp. 26-28.
In at least three Supreme Court cases in recent years federal

-4-



.

n  f

— -



employees have litigated the legality of federal employ­
ment practices alleging jurisdiction under the Adminis­
trative Procedure Act. In each of these cases the Soli­
citor General declined to contest the existence of federal 
jurisdiction. Vitarelli v. Seaton, 359 U.S. 535 (1959),
Peters v. Hobby, 349 U.S. 331 (1955), Service v. Dulles,
354 U.S. 353 (1957); See also Greene v. McElrov, 360 U.S.
474 (1959). In Society for Individual Rights v. Hampton,
5 EPD 5[8934 (N.D. Cal. 1973), a sex discrimination action, 
the U.S. Attorney declined to challenge jurisdiction which 
was asserted under the Administrative Procedure Act.

Jurisdiction over the instant action is also 
claimed to exist under the Mandamus Act, 28 U.S.C. § 1361. 
Appellant's Brief, pp. 13-20. The U.S. Attorney maintains 
that there is no jurisdiction under § 1361 because employ­
ment decisions are inherently discretionary. Defendants'
Brief, p. 25. Two years ago, in a three judge court action 
in this Circuit, the U.S. Attorney took a similar position, 
arguing that section 1361 did not create a cause of action 
against federal officials regarding unemployment compensa­
tion for federal employees. Memorandum of Law By Federal 
Defendants, pp. 15-18. Christian v. New York State Depart­
ment of Labor. In the district court Judges Hays and Bauman 
held there was no jurisdiction under the Mandamus Act, 347 
F. Supp. 1158 (S.D.N.Y. 1972), but on appeal the Solicitor 
General confessed error and conceded that there was jurisdiction 
under § 1361. Christian v. New York State Department of Labor,

-5-



vs::ys';V :( >.'■'■■- ■"■■ ■ ;> ./ • -r j v  :-v - ^ r -’ .•-<> '

___ —  \



42 U.S.L.W. 4181, 4182, n.3 (1974). In a variety of other 
cases U.S. Attorneys have declined to argue that the Man­
damus Act conferred jurisdiction over federal employment 
cases. See e.g. Ballard v. Laird. 6 EPD 5(8793 (S.D.Cal.
1973) ; Waters v. Peterson, 6 EPD 5(8900 (D.C.Cir. 1973);
Society for Individual Rights v, Hampton, 6 EPD 5(8934 
(N.D. Cal. 1973).

Finally, Appellant urges that the Tucker Act,
28 U.S.C. § 1346, confers jurisdiction over his claim for 
back pay. Appellant's Brief, pp. 28-36. The U.S. Attorney 
in this action maintains it does not. Defendants' Brief, 
pp. 21-24. But only 3 months ago the U.S. Attorney for 
the District of New Jersey conceded the Tucker Act established 
a cause of action for back pav in race discrimination cases, 
Sperling v. United States of America, 7 EPD 5(9274 (D. N.J.
1974) . Similarly in Waters v. Peterson, 6 EPD 5(8900 (D.C.
Cir. 1973) the plaintiff asserted and the government did 
not contest the existence of jurisdiction under the Tucker 
Act.

In addition the U.S. Attorney argues in this case 
that the 1972 amendments to Title VII were applicable to 
the instant case even though it arose prior to 1972. This 
argument is relied on to support the contention that Title 
VII pre-empts any other remedies, that Mandanus is improper 
since another remedy exists and that the Administrative 
Procedure Act is inapplicable because Title VII also applies. 
Defendants' Brief pp. 6, 24-28. The position taken by the 
U.S. Attorney on this question is conceded to be inconsis 
tent with the position taken by U.S. Attorneys throughout





the country, who have heretofore argued that Title VII 
does not apply to discrimination before the effective 
date of the 1972 Amendments. See e.g. Walker v.
Kleindienst, 357 F. Supp. 749 (D.D.C. 1973); Harrison v.
Butz, 5 EPD 5)8632 (D.D.C. 1973) ; Johnson v, Froelhke, 5 
EPD 5(8638 (D. Md. 1973) ; Hill-Vincent v. Richardson, 5 
EPD 5(8639 (N.D. 111. 1973); Johnson v. Lvbecker. 7 EPD 
5(9191 (D Ore. 1974) ; Feiger v, Warner, 7 EPD 5(9140 (S.D.
Cal. 1974); Nimtz v. Berzak, 7 EPD 5(9273 (E.D. La. 1974); 
Hackley v. Johnson, 360 F.Supp. 1.247, 1249 n.l. (D.C.Cir.
1973). Indeed, the U.S. Attorney in the instant case 
argued against his present position in Henderson v. Defense 
Contract Administration Services Region, 7 EPD 5(9058 (S.D.
N.Y. 1974).

In addition, the U.S. Attorney urges that Title 
VII was intended to tacitly repeal, to the extent they 
applied to discrimination against Federal employees, the 
Mandamus Act, the Administrative Procedure Act, the Tucker 
Act, and the 1866 Civil Rights Act. So far as counsel 
for Appellant have been able to determine, despite the dozens 
of federal employment discrimination cases since the enact­
ment of the 1972 amendments to Title VII, this is the first 
time any U.S. Attorney advanced this rather extraordinary 
argument. The Equal Employment Opportunity Commission has 
regularly argued that Title VII did not pre-empt pre-existing
remedies. See Amicus Briefs in Brady v. Br is tol-Meyers ,_Inc..,
459 F .2d 621 (8th Cir. 1972); Young v. International Telephone, 
& Telegraph, 438 F.2d 757 (3d Cir. 1971).

-7-



■

,



In view of these circumstances, Appellant 
issuggests it/inappropriate for the Court to decide this 

case in its present posture. First, there is a signifi­
cant danger that, as happened in Christian, the position 
now being urged by the U.S. Attorney will be repudiated 
on appeal by the Solicitor General. Second, the apparent 
inconsistencies in the positions taken by the government 
in these cases may reflect an internal disagreement within 
the Executive Branch. If that is the case, such a dis­
agreement should be resolved by or within the Justice De­
partment not by this Court. Third, the integrity of the 
legislative process requires that officials of the Justice 
Department and Civil Service Commission should not be per­
mitted to argue against the existence of jurisdiction in 
this case after having told Congress such jurisdiction 
existed, at least without giving some explanation of this 
change in position. Fourth, with regard to the question 
of whether Title VII applies to discrimination prior to 
1972, the United States is obligated to take one and only 
one position; the responsibility of the Justice Depart­
ment is not to defeat jurisdiction in cases such as this 
by any means necessary, but to decide what it thinks Title 
VII requires and to stand by that position regardless of 
any inconvenience it may cause. Finally, the erratic conduct 
of U.S. Attorneys in litigating federal employment cases has 
created a situation where an employee's right to sue has, 
for all practical purposes, been left to the standardless 
discretion of the local Justice Department attorney involved.

- 8 -





This Court can and should require the government to 
adopt and enforce a uniform policy in these matters.

Appellant would suggest that the appropriate 
method for clarifying this situation would be for the 
Court to request that the Government file a Memorandum 
from the Solicitor General, who has supervisory respon­
sibility for all appellate litigation. That Memorandum 
should state definitively the position of the United 
States on the issues raised by this case, including

(1) Does the Mandamus Act establish 
federal jurisdiction over an action 
alleging racial discrimination in 
federal employment?

(2) Does the 1866 Civil Rights Act 
establish federal jurisdiction over
an action alleging racial discrimination 
in federal employment?

(3) Does the Administrative Procedure Act 
establish federal jurisdiction over an 
action alleging racial discrimination in 
federal employment?

(4) Does the Tucker Act establish federal 
■ jurisdiction over an action alleging
racial discrimination in federal em­
ployment?

(5) Are federal officials subject to suit 
for injunctive relief to enjoin racial 
discrimination in federal employment 
under 28 U.S.C § 1331 or any other statute?

— o _



•• ■ C ’



(6) Were any of the remedies set out
in questions 1-5 repealed by the 1972 
amendments to Title VII?

(7) Does the 1972 amendment to Title VII 
establishing jurisdiction in federal 
employment apply to discrimination 
occurring prior to the effective date 
of that amendment?

Only on the basis of such a clarification of the position 
of the United States can the Court determine whether this 
appeal presents a genuine case or controversy which this 
Court must resolve.

-10-





2. Title VII Does Not Pre-empt The Court's 
Jurisdiction Under Other Federal Statutes

As previously noted, the U.S. Attorney here 
advances the entirely novel (in federal employment dis­
crimination cases) jurisdictional argument that the 
1972 amendments to Title VII, extending that Act to 
federal employment, repealed sub silentio any pre­
existing jurisdiction under other statutes. Appellees'

2/Brief pp. 6-18.
The U.S. Attorney's argument has no basis in 

statutory language, and flies in the face of clear legis­
lative history and uniform judicial decisions rejecting 
the pre-emption argument.

The pre-emption or repeal argument has been 
frequently raised in cases alleging private employment dis­
crimination under 42 U.S.C. § 1981. Every one of the Circuits 
with reported decisions dealing with that defense has strongly 
repudiated it. See, e.g., Young v. International Telephone 
& Telegraph Co., 438 F.2d 757, 760-761 (3rd Cir. 1971);
Sanders v. Dobbs Houses, Inc., 431 F.2d 1097, 1100-1101 (5th
Cir. 1970); Long v. Ford Motor Co., ____ F.2d____ , 7 EPD
519290, p. 7334 (6th Cir. 1974; Waters v. Wisconsin Steel 
Works of Int'1 Harvester Co., 427 F.2d 476, 484-485 (7th 
Cir. 1970), cert, denied 400 U.S. 911 (1970); Brady v. Bristol- 
Meyers. Inc.. 459 F.2d 621, 623-624 (8th Cir. 1972), Macklin v.

2/ While cast in terms of pre-emption, the argument is in 
effect that, if there ever were any other bases for juris­
diction, Title VII repealed them.

-11-



'

.

,

•



Spector Freight System. Inc., 478 F.2d 979, 993 (D C Cir 
3/

1973) . The rationale of these cases is of course equally
applicable to other alternatives to Title VII, such as
Mandamus Act, Administrative Procedure Act, or Tucker

1/Act jurisdiction.
Undaunted, the U.S. Attorney asserts that these 

cases are all distinguishable because they involved private, 
not federal employees. Appellees' Brief at pp. 17-18. That 
assertion rests on a distinction without significance and 
ignores the clear intent of Congress as interpreted by the 
Supreme Court.

In its deliberations on the proposals that led 
to the 1972 Title VII amendments - which provided, inter 
alia, for extension of Title VII's coverage to federal employees - 
Congress specifically repudiated the doctrine that Title VII

5/pre-empts other federal remedies for employment discrimination.
Both the Senate and the House rejected attempts, 

during the legislative debates on the Title VII amendments, 
to make Title VII the exclusive remedy for employment discrimination.

3/ The Fifth Circuit has recently held that the § 1981 cause 
of action established in Sanders is equally available to federal 
employees. Penn v, Schlesinger, 490 F.2d 700, 702 (1973).
4/ The apparent reason for the lack of decisions discussing 
pre-emption in the context of these other jurisdictional 
bases is simply that few plaintiffs have asserted causes 
of action for employment discrimination under statutes other 
than Title VII and §§ 1981, 1983.
■5/ Congress had also rejected a proposal to make Title VII 
the exclusive remedy for private employment discrimination 
in the original enactment of the civil Rights Act of 1964.
See, e.g. 110 Cong. Rec. 13650-13652 (1964); Waters v. Wisconsin 
ijteel works . supra at 484.

- 1 2 -





On February 8, 1972 Senator Hruska introduced
an amendment to S.2515, proposing that Title VII be made
the exclusive remedy for discrimination by “any employer."
Legislative History of the Equal Employment Opportunity
Act of 1972 ("Legislative History") at 1382. By that time,
Congress had long since recognized that one of the principal
features of the Amendment was to define the Federal Govern-

6/
ment as an "employer" subject to the Act. The Hruska Amend­
ment was twice defeated, see Legislative History 1406-1407, 
1520-1521, and thereafter abandoned.

The House also rejected a similar attempt to make 
Title VII the exclusive remedy for employment discrimination.
The House Committee which reported out H.R.1746 (which as 
later modified became P.L. 92-261, the 1972 Amendment) spec­
ifically cited the Sanders and Young decisions with approval, 
and stated that they

"have affirmed this Committee's belief 
that the remedies available to the 
individual under Title VII are co­
extensive with the individual's right 
to sue under the provisions of the civil 
Rights Act of 1866, 42 U.S.C. § 1981, and 
that the two procedures augment each other 
and are not mutually exclusive."

H.R.Rep. 238, U.S. Code Cong. and Admin. News, 92nd Cong.,
1st Sess., 78-79 (1971). See also the dissenters' statement
clearly recognizing that the House had in fact rejected thexr
Position that Title VII should be an exclusive remedy, id. at 126.

y  See, e.g., H.R. Rep. 92-238 (June 2, 1971), reprinted 
at Legislative History 61, 82-86; S.Rep. 415 (October 28. 
•̂971), reprinted at Legislative History 410, 421-426.

-13-





The Supreme Court recently recognized these clear 
expressions of legislative intent. In Alexander v. Card' er- 
Denver Co■, 39 L.Ed. 2d 147 (1974) it stated:

In addition, legislative enact­
ments in this area [Title VII] have 
long evinced a general intent to 
accord parallel or overlapping reme­
dies against discrimination.^ . . .
Moreover, the legislative history of 
Title VII manifests a Congressional 
intent to allow an individual to 
pursue his rights under both Title 
VII and other applicable state and 
federal statutes. The clear inference
is that Title VII was desiqned to s up-
plement, rather than supplant, exi stinq
laws and institutions relating to employ-
ment discrimination.
7- See, e.g., 42 U.S.C. § 1981 (Civil 
Rights Act of 1866; 42 U.S..C. § 1983 
(Civil Rights Act of 1871).

O T n t] — j_ 1 CO T TT*rn an' o ra r] rl 1
The U.S. Attorney offers no satisfactory reason 

for this Court to cast aside the holdings of private employ­
ment § 1981 cases, the legislative history of PL. 92-261. 
or the Supreme Court's Gardner-Denver opinion, whenever an 
agency of the United States is the discriminatory employer. 
His distinction between federal and non-federal employers 
for purposes of pre-emption has no foundation in statutory 
language, legislative history, or common sense.

The pertinent statutory provisions point to a con­
clusion opposite to the U.S. Attorney's. Congress plainly 
meant Section 717(e) of the 1972 Amendment to Title VII to 
preserve other existing rights of action against federal

yemployment discrimination. The oft-expressed purpose

2/ Section 717(e), 42 U.S.C. § 2000e-16(e), reads: 
Nothing contained in this Act shall

-14-





of adding Section 717, covering federal employment, 
was 'to accord Federal Employees the same rights and 
impartial treatment which the law seeks to afford employees 
in the private sector." 92nd Congress, 1st Session, H.R.
Rep. 92-238 (1971), reprinted in Legislative History at 
83. See also, remarks of Senator Dominick, 118 Cong. Rec.
§ 717 (daily ed. Feb. 15, 1972) reprinted in Legislative 
History 1527, and 118 Cong. Rec. § 176 (daily ed. Jan. 20,
1972), in Legislative History 680-681. Nothing in the 
language of Section 717 indicates that Congress, in extending 
the courts' jurisdiction to federal employment, meant to 
deprive federal employees of one of the rights it preserved 
to private sector employees - the right to utilize alterna­
tive non-Title VII causes of action.

The purported federal - non-federal distinction 
is bereft of logic. The U.S. Attorney asserts that federal 
cases are significantly different because EEOC conciliation 
procedures are not available and because, indeed, Congress 
confided plenary jurisdiction over federal employees' claims 
in the Civil Service Commission (CSC), with limited review 
in the federal courts. (Appellees' Brief pp. 13-18). He

2/ cont'd
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 opportunity in the Federal 
Government. [Emphasis added].

-15



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extrapolates from these assertions to conclude that 
Congress intended that CSC should exercise an adjud­
icatory function as to federal employment claims under 
Title VII (id. pp. 15-16). Therefore, the U.S. Attor­
ney argues, this Court must not permit complaining par­
ties to bypass that primary adjudicatory step by, e.g., 
the recognition of non-Title VII causes of action for 
federal employment discrimination. (id. pp. 17-18).

This tenuous reasoning is shipwrecked on the 
plain language of the Gardner-Denver decision. The 
Supreme Court strongly reaffirmed there that, "The pur­
pose and procedures of Title VII indicate that Congress 
intended federal courts to exercise final responsibility 
for enforcement of Title VII.” 39 L.Ed.2d at 162-163. 
Indeed, it was Congress' perception of the CSC's failure 
as a forum for fairly resolving federal employment dis­
crimination cases, and its distrust of confiding such 
cases to a creature of the alleged and acknowledged dis­
criminator, the Federal Government, that gave impetus to

6/
the enactment of Section 717 in the first place. To 
argue now that this same section requires the elevation 
of CSC administrative procedures into an exclusive remedy 
for federal discrimination would pervert the spirit and

6/ See, e.g., Appellant's main brief at 27 n. 24.

-16-





language of the Act.
Finally, the U.S. Attorney's position foun­

ders on its ultimate absurdity. In effect, he proposes 
(evidently sua sponte, see pp. 1-10, supra) that the 
United States, as an employer, should be subject to more 
limited, permissive rules than all other employers sub­
ject to federal court suit for discrimination. In fact, 
the U.S. Attorney asks this Court to grant the federal 
government license to discriminate with relative impunity. 
The Court must reject this unbecoming invitation and hold 
the United States accountable in court for its unlawful 
acts on the same basis as all other employers. The larger 
purpose of the 1372 Amendment is best served by holding 
that it does not pre-empt other remedies for victims of 
federal discrimination in employment.

Respectfully submitted,

DATED: June 10, 1974

JEFF GREENUP
Greenup & Miller 
200 West 135th Street 
Suite 218
New York, N.Y. 10030

JACK GREENBERG 
JAMES M. NABRIT, III 
JOHNNY J. BUTLER 
JOSEPH P. HUDSON 
ERIC SCHNAPPER

10 Columbus Circle 
Suite 2030
New York, N.Y. 10019 

Attorneys ffbr Plaint iff-Appellant
Br M K 3 £ ^ 3

JOH&NY \r. BUTLER

17-





c er tificate of service

I hereby certify that on this 10th day of June,
1974, I served two copies of the Reply Brief for Appell­
ants in this cause upon counsel for the appellees herein, 
by directing Joseph P. Hudson to hand deliver two copies 
of the Reply Brief for Appellants to the following par­
ties at the address below:

Paul J. Curran, Esq.
Charles Franklin Richter,Esq. 
Gerald A. Rosenberg, Esq.
U.S. Courthouse 
New York, N.Y.

-18-



.S'



UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

DORCAS BOND and BARBARA BALDWIN,
Plaintiffs-Appellees,

v .
WILLIAM H. DENTZER, individually and 

as Superintendent of the Banking 
Department of the State of New York,

Defendant-Appellee,
BENEFICIAL FINANCIAL COMPANY 

OF NEW YORK, INC., and 
PROTECTIVE LOAN CORPORATION,

Defendants-Appellants.

No. 73-2377

JACK GREENBERG 
ERIC SCHNAPPER

10 Columbus Circle
New York, New York 10019
212-586-8397

Counsel for the NAACP
Legal Defense and Educational
Fund, Inc., Amicus Curiae



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UNITED COURT OF APPEALS
FOR THE SECOND CIRCUIT

DORCAS BOND and BARBARA BALDWIN,
Plaintiffs-Appellees,

v .
WILLIAM H. DENTZEr , individually and 

as Superintendent of the Banking 
Department of the State of New York,

Defendant-Appellee,
BENEFICIAL FINANCIAL COMPANY 

OF NEW YORK, INC., and 
PROTECTIVE LOAN CORPORATION,

Defendants-Appellants.

No. 73-2377

BRIEF OF THE N.A.A.C.P. LEGAL 
DEFENSE AND EDUCATIONAL FUND 
INC., AMICUS CURIAE__________

Interest of Amicus
The NAACP Legal Defense and Educational Fund, Inc. (LDF) 

is a non-profit corporation, incorporated under the laws of the 
State of New York and authorized by the courts of New York to 
serve as a legal aid society. It was formed to assist Negroes 
and all indigent persons to secure their legal and constitutional 
rights by the prosecution of lawsuits. The LDF is independent 
of other organizations and is supported by contributions from 
the public.

Over a long period of time the NAACP Legal Defense Fund 
has provided representation to blacks and other poor persons in 
litigation concerning their rights as consumers:. LDF attorneys



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represented in the United States Supreme Court the successful 
appellant in Sniadach v. Family Finance Corporation, 395 U.S.
337 (1969) . LDF represented the consumer-petitioner in the 
Supreme Court in Mourning v. Family Publications Service 41 
U.S.L.W. 4517 (1973). Within this Circuit LDF attorneys have 
represented consumers in several cases involving important test 
case issues. Colligan v. Activities Club of New York, 442 F.2d 
686 (2d Cir. 1971) cert. denied 404 U.S. 1004; Ratner v. Chemical 
Bank. 329 F.Supp. 270 (S.D.N.Y. 1971); 54 FRD 412(S.D.N.Y. 1972);
Kristiansen v, John Mullins & Sons, Inc., ____ F.Supp. _____
(E.D.N.Y., No. 70 C 1041, opinion dated March 14, 1973). LDF 
attorneys have on several occasions sought rulings from the 
Administration of the federal Wage and Labor Standards Adminis­
tration regarding the applicability to wage assignments of the 
protections of the Consumer Credit Protection Act. LDF parti­
cipated as an amicus curiae in litigation now pending in the 
Southern District of New York challenging the constitutionality 
of wage assignments, Albert v. Household Finance Corporation,
No. 72 Civ. 4651.

This brief is filed with the consent of all parties, 
pursuant to Rule 29, Federal Rules of Appellate Procedure.

ARGUMENT
Wage Assignments Can and Are Being Used to Evade the

Statutory and Constitutional Limitations on Garnishments
To an increasing extent in recent years creditors seeking 

to force payment from consumers for actual or disputed debts have 
sought to divert to themselves the consumers' wages before those

-2-



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wages are actually paid to consumers by their employers. This 
practice has been found particularly convenient for collecting 
money from consumers with low incomes because they often spend all 
their wages on essentials such as food and shelter rather than 
conveniently attachable items such as cars or houses. In most 
states this diversion of wages has been accomplished by garnish­
ment, a procedure whereby a state court issues an order formally 
attaching all or part of the wages and directing that they be paid 
to the creditor or held pending resolution of some litigation.
In the instant case the economic facts of the arrangement among 
the creditor, consumer and employer are exactly the same as in 
the case of a garnishment; the legal formalties differ in that 
the consumer was required to sign a "Wage Assignment" agreement 
as a condition of the extension of credit, and the creditor in a 
technical sense seeks to enforce this agreement rather than a 
court-ordered garnishment.

For the very reasons that a diversion of wages is conve­
nient for creditors, it is a heavy burden on consumers. Creditors 
find garnishments particularly useful in dealing with consumers who 
are so poor that they cannot buy expensive luxuries suitable for 
seizure and resale; but in such cases the money withheld from the 
consumer is money needed for such essentials as food and rent. 
Attachment of wages under these circumstances has been an important 
cause of urban rioting, Report of the National Advisory Commission 
on Civil Disorders, 276 (Bantam ed.), and led in part to federal 
legislation protecting from garnishment the wages of the poorest 
workers. Frequently employers preferred to fire employees rather 
than incur the costs and inconvenience of complying with a garnish­
ment, and creditors have exploited this problem by threatening to

-3-



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imperil a consumer's job if he did not pay a disputed bill. Here 
too federal and state legislation has been enacted to prevent such 
dismissals. Some states have gone so far as to visit the drastic 
consequences of a garnishment on a consumer without first giving 
the consumer a day in court to show that he is not liable for the 
debt as issue. This practice the Supreme Court has found so mani­
festly unfair, so draconian in forcing consumers to pay disputed 
bills just to get their sorely needed wages, as to violate Due 
Process of Law. Sniadach v. Family Finance Corporation. 395 U.S.
337 (1969). In the instant case the creditor seeks the same remedy 
as was condemned in Sniadach, to obtain part of the consumer's wages 
without first proving he is owed the money. The question posed is 
whether this creditor can legally do so merely because the legal 
device employed is a wage assignment rather than a garnishment.

If a legal distinction is drawn between garnishments and 
wage assignments, the constitutional and statutory protections 
against abuse of the ganishment procedures will be dead letters.
Such assignments, whose practical effect is the same as a waiver 
of all the legal protections afforded against garnishments, will 
be particularly easy to extract from low income consumers whose 
bargaining power and understanding of the law is meagre. Creditors 
are of course well aware of this alternative to garnishment. Sniadach 
v. Family Finance Corporation, 395 U.S. 337, forbidding garnishment 
without a prior hearing, was decided in June of 1969, and Title III 
of the federal Consumer Credit Protection Act, 82 Stat. 162, pro­
tecting certain portions of wages from garnishment, was enacted 
in May 1968 and became effective on July 1, 1970. By July, 197Q, 
two ma jor creditor publications, the Prentice-Hall Consumer and 
Commercial Credit Reporter and the Consumer Credit and Truth-in-

-4-



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Lending Compliance Report, were urging their readers to consider 
alternatives such as wage assignments "if the new limitations on 
garnishment seem to make it an unsatisfactory way" to extract 
money from consumers. Consumer Credit and Truth-in-Lending Com­
pliance Report, v. 1, No. 9, p.4. The use of wage assignments 
has in fact risen since these "new limitations" went into effect.

The greatest impact of New York's wage assignment pro­
cedure, and of the resulting deprivation of a due process hearing, 
is on those who can least afford to lose the wages involved and 
who are least likely to understand what they are being required 
to sign as a condition of the extension of credit. In Albert v. 
Household Finance Corporation, No. 72 Civ. 4651 (S.D.N.Y.) an 
analysis of the wage assignments filed in Manhattan for the first 
months of 1972 revealed that 44.6% of all wage assignments were 
against persons who lived in areas more than one half black and 
Puerto Rican. Of these wage assignments, 26.5% were filed against 
persons in census tracts which were over 90% black, yet only 13.3% 
of the tracts are over 90% black. Predominantly white areas accounted 
for 77.4% of Manhattan but only 55.2% of the wage assignments. Thus 
the odds that a consumer living in a 90% black neighborhood would 
be subjected to a wage assignment was 2.78 times higher than the 
likelihood that this would happen to consumers in a majortiy 
white area.

Wage assignments were also used with greater frequency 
against consumers who lack formal education. A comparison in Albert 
of wage assignments in the 60 census tracts where the residents 
had the worst educations (less than 30% high school graduates) 
and the 60 census tracts with the highest education

-5-



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(over 16.3% high school graduates) revealed that during the
first months of 1972 the use of wage assignments was 150% higher
in the poorly educated areas than in the well educated neigh-

1/borhoods.

1/ See Brief of NAACP Legal Defense Fund, filed April 17, 
1973 in Albert v. Household Finance Corporation, supra.



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Wage Assignments in New York Involve State Action
As was properly held by the District Court below, and 

is set out in Appellees' brief, wage assignments in New York 
involve state action because wage assignments are encouraged 
by state policy, because wage assignments delegate inherently 
public functions to creditors, and because the enforcement of 
wage assignment involves state participation.

Appellants argue, however, that wage assignments are 
voluntarily entered into, and that Appellees and other assignors 
have voluntarily and knowingly waived their right to due process 
of law. Even in ordinary consumer transactions this suggestion 
would be misleading; virtually every loan and other consumer 
credit agreement in New York is on a printed form prepared by the 
creditors' lawyer, and no consumer can negotiate a change in those 
terms. The only resort available to a consumer dissatisfied with 
the printed terms is to go to another creditor. In the case of 
article IX licensed lenders, however, the policy of the state of 
New York has been to assure, either that there is no other credi­
tor to whom the consumer can turn, or that the other creditor's 
terms - and particularly his requirement of a wage assignment - 
are the same as the first creditor.

The state Banking Department must license all Article IX 
lenders, and has consciously used this power to prevent competi­
tion. Any firm seeking a license to open a new office must establish 
"that the proposed office will not adversely affect competing 
licensed lender offices in the area." N.Y. State Dept, of Banking, 
Outline of Information to be Developed in Support of an Applica­
tion for A Licensed Lender Office (1972). The Department's practice

-7-



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is not to license a new office unless there are at least 25,000 
unserviced potential borrowers. In the last three years, the 
state has licensed onlycne new office in all of New York City, 
and has not revoked a license at any time in recent years.

This state policy of preventing competition among licensed 
lenders has been disastrously effective. In 163 town and cities 
in New York the Banking Department has licensed only a single 
lender. The residents of these areas have no choice but to 
borrow from the lender on whom the state has conferred this local 
monopoly, and to accept whatever credit terms are imposed. See 
Annual Report of the Superintendent of Banks, 1018-1099 (1971).
In New York City the state has, of necessity, licensed a large 
number of offices. Yet in licensing a total of 178 offices in 
the city, the state has deliberately created a monopolistic 
situation by giving two firms - Beneficial Finance and Household 
Finance - 96 of the offices, over 53%. These two firms, particularly 
because virtually no other lenders can afford the cost of advertising 
in New York City, have cornered well over 60% of the loan business in 
the city. Id.., The state has succeeded in assuring virtually all 
lenders of a substantial profit and volume of business without 
resort to competition in credit terms; in over half the counties 
in the state the average loan volume per office falls in a narrow 
range between $750,000 and $1,000,000 a year, see Table I, infra; 
of the 47 loan offices in Manhattan, only 4 have a loan volume 
under $600,000 per year. See Annual Report of the Superintendent 
of Banks, 1037-1038 (1971).

By thus assuring lenders of an adequate profit regardless
of their credit terms, the state has succeeded in preventing lenders
from competing for business by offering better credit terms.

- 8 -



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In view of the unfairness of wage assignments to consumers, one 
would expect that one or more competing lenders would abandon 
using wage assignments and advertise this practice to attract 
more business. In reality, however, as a direct result of the 
state's anti-competition policies, the Appellees had no choice 
when they sought loans in Albany because every licensed lender 
in the city uses wage assignments and, according to the records 
of the Albany County Clerk, every lender files assignments in the 
clerk's office.

In short the heavy hand of state regulation has inter­
vened in the free market to stifle competition, and thus to eliminate 
any chance consumers might have had to find or negotiate a loan 
from an Article IX lender without being required to sign a wage 
assignment. Such state action to prevent competition as to credit 
terms offered strips wage assignments of any voluntary character.
By so acting the state has required consumers to execute wage 
assignments as effectively as if the Banking Law expressly provided 
that every loan contract must include such an assignment. To suggest 
under such circumstances that wage assignments do not involve state 
action is to ignore both the purpose and effect of New York's regu­
latory scheme.

-9-



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Wage Assignments Are Not Indispensable Collection Devices
Appellants urge that the federal courts should abstain 

from passing on the validity of New York's wage assignment law 
on the ground that wage assignments are vital to the functioning 
of the state's credit industry, and any decision prohibiting use 
of this device would have catastrophic financial consequences.

This assertion is not supported by the actual practices 
in the state of New York. The use of wage assignments by merchants 
in actual sales credit contracts was prohibited in 1957 by Section 
403 of the Personal Property law; that ban produced no hard­
ship to either merchants or consumers. State law now sanctions 
the use of wage assignments by banks, credit unions and licensed 
lenders. By far the largest volume of business is done by hanks; 
in 1971 banks extended consumer credit loans totalling over 3.9 
billion dollars, not including real estate loans, compared to 
549 million dollars worth of loans by Article IX licensed lenders. 
Annual Report of the Superintendent of Banks, 213, 233 (1971).
Yet of the ten largest commercial banks in New York City, eight

1/banks do not take wage assignments to secure personal loans,
and of the two banks that take wage assignments only one executes

1/them against its debtors. See Annual Report of the Superintendent

1/ Chase Manhattan Bank (Interview with Mr. William Dolan);
Chemical Bank (Interview with Mr. Jeffrey Reitman); Bankers Trust 
(Interview with Mr. Leo Larney);,- Manufacturers Hanover Trust 
(interview with Mr. Michael Ganz); Marine Midland (Interview with 
Mr. Charles Watson); Irving Trust (Interview with Mr. Frank Colossi); 
Morgan Guaranty Trust (Interview with Mr. William Luckett), and 
National Bank of North America (Interview with Mr. Leon C. Ferni).
2/ The Bank of New York does not enforce the assignments it occasion­
ally takes (Interview with Mr. Joseph Hamm), only First National City 
actually uses the assignments.

-10-



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of Banks, 157 (1971).
Even among Article IX licensed lenders, who put wage 

assignments into their contracts as a matter of course, the actual 
enforcement of those assignments is both infrequent and erratic. 
Under New York law before a wage assignment can be enforced by a 
licensed lender, it must be filed in the office of the County Clerk 
of the county where the consumer lives. New York Personal Property 
Law, § 47-a. Table I infra, sets out the number of such assign­
ments filed in each county in 1971, togehter with the number of

2/accounts of the lenders in each county. The table reveals that,
in the 46 counties for which data was available, there were 630,192
consumer accounts but only 18,983 wage assignments were ever filed
with the county clerks. What portion of these filed assignments
were thereafter enforced is unknown. But it is clear that the
rate at which these assignments were filed varied tremendously.
Only 1 wage assignment was filed for every 117 accounts in Essex
county, compared to 1 out of 7 in Orleans county. Within the
city of New York 1 assignment was filed for every 28 accounts in
Brooklyn, compared to 1 out of 73 in Manhattan. Even within
a single county the practice varies widely from lender to lender.
The records of the Albany County Clerk reveal that in the last

4/six months of 1973 lenders in the City of Albany filed 127 wage 
assignments. Associates Finance and Domestic Finance are of

3/ The number of wage assignments are of course matters of 
public record, and each figure has been confirmed in writing by 
the Clerk of each county involved. The total number of accounts 
is set out in the Annual Report of the Superintendent of Banks, 
235-236 (1971).
4/ March 15 through October 1.

-11-



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roughly comparable size; according to the most recent figures 
Associates made 9.6% of the loans in Albany and Domestic 10.8%» 
yet Associates filed only 4.7% of the wage assignments (6) while 
Domestic filed 30.0% of the assignments (38).

There statistics make manifestly clear that wage assign­
ments are not the foundation of the credit industry in New York.
Only one segment of the industry takes wage assignments with any 
frequency, and among them actual enforcement is quite uneven. If 
wage assignments were struck down tomorrow as unconstitutional, no 
dire consequences would befall merchants, banks, credit unions 
or licensed lenders, but such a ruling would end a practice 
deplorably unfair to consumers. Under such circumstances abstention 
is clearly inappropriate.

CONCLUSION
The judgment of the District Court should be affirmed.

Respectfully submitted.

JACK GREENBERG 
ERIC SCHNAPPER

10 Columbus Circle
New York, New York 10019
212-586-8397

Counsel for the NAACP
Legal Defense and Educational
Fund, Inc., Amicus Curiae

-12-



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TABLE I
Accounts, average loan volume per 
accounts per wage assignment (WA) 
number of wage assignments filed.

of f ic e, 
and



o 
w> vr 3i.-;;ic rxscl 3 ^aid&aoox

i * d:.Oi ..3 : 3.,̂. io± a.;ru;-.'D- >
. . i  . s -  ^ p - w  r :  -e c :  :.:n



County Accounts
• loan volume 

yper office
Accounts per 

WA #  of WA
Albany 16723 §905,738 38.5 434
Alleghany 696 504 062 2 3 .2 30
Bronx 36840 1,280,000 2 7 .2 1359Broome 13494 915,830 44.0 30 6
Cattaraugus 3065 ■693,537 34.1 89
Cayuga 4155 ' 1,088,491
Chautaqua 8287 1,113,530 34.6 239
Chemung 7127 - 835,010
Chenango 2344 863,285 34.6 68Clinton 4193 ' 1,131,614
Columbia 1723 668,616 2 1 .5 80
Cortland 3469 ■ 857,385
Delaware 1378 ■ 518,046
Dut chess 8535 878,745 33.1 258
Srie 58219 1,043,141 28.9 2007
Essex 1424 578,545 117.0 14
Franklin 1697 693,743 42.4 40
Fulton 5571 1,373,979 41.5 134
Genesee 4435 1,066,191 45.2 96
Greene 1660 ■ 1,363,709
Hamilton NO LICENSED LENDER OFFICES
Herkimer 2816 751,013 20.9 142
Jefferson 6614 1,080,584 34.8 190
Kings 78870 1,140,000 28.0 2819
Lewis NO LICENSED LENDER OFFICES
Livingston 1514 1,255,544
Madi son 2793 1,100,926 22.5 136
Monroe 32013 1,025,710 29.8 1073
Montgomery 2820 496,588 31.4 90
Nassau 34417 • 911,931
New York 90717 1,420,000 73.5 1233
Niagra 11622 858,742 35.3 32 9
Oneida 12732 • 1,106,593
Onandaga 29221 1,027,899 24.7 1184
Ontario 2565 619,550 34.2 75
Orange 10750 857,458 31.1 346
Orleans 556 397,996 6.8 82
Oswego 5373 824,626 26.9 200
Otsego 2790 714,310 62.0 45 :
Putnam 1025 847,253 34.1 30
Rensselaer 9881 849,469 30.4 323
Richmond 10526 785,000 56.8 185
Rockland 7812 753,101 28.9 271
Queens 71745 1,085,000 30.1 2384
St. Lawrence 5888 909,510 58.3 101
Saratoga 3734 ' 965,152
Schenectady 8758 856,418 43.9 199
Schoharie 1384 717,365 44.6 31
Schuyler 539 381,805 20.0 27
Seneca 911 517,793 29.4 31
Steuben 6508 822,254 12.0 542
Suffolk 42373 973,940 37.0 1144
Sullivan 1355 929,944 15.2 89
Tioga 1390 534,876 33.9 41
Tompkins 2812 ■ 730,353
Ulster 5111 753,168 2 7 .2 188
Warren 4489 852,467 55.4 81
Washington 2484 868,829 2 5.6 97
Wayne 2499 913,268 26.0 96
Westchester 28560 - 825,295
Wyoming NO LICENSED LENDER OFFICES
Yates 1427 1,112,638 57.1 25



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net te d states court o? appeals
FOR THE FIFTH CIRCUIT

N o .  7 4 - 3 0 5 6

UNITED STATES OF AMERICA, e t  a h ,

P 1 a i. n I £ £ a ■-1, ]_; p : 11 e c s ,

v .
ALLEGHENY-LUDLUK INDUSTRIES, ex. a l .  ,

D ^ f e n d a iits -A p p e lle e s  ,

SIDNEY HARRIS et. a h ,

I  n t  e r  v e ao r  s p p e  11 a.:11 n -

On A p p e a l From The U n ite d  S ta te s  D ir  . r i  - ' C ourt 
F o r  The N o r th e rn  D i s t r i c t  o f  Alabama

RE PLY B RIEP F OR I  NT REVIE70RS -  A >J PEI J., ART S

JACK GREENBERG 
,XAMSS EL NABRIT.- I I I  
BARRY GOLDSTEIN 
.MORRIS J .  BALLED 
CHARLES STEPHEN RALSTON 
ERIC SCI. -  Al

10 Colvm.bes Circle 
Suite 2010Hew York , New York 100]9 

Cou31s e ?. f o r  I  r>te rv e n o rs -A p c





INDEX

Page

I . Waiver of Injunctive Relief ................ 2

II. Waiver of Prospective -Back Pay Claims ..... 3
Ill. Waiver of Accrued Back Pay Claims ...... . . 5
IV. Injunctive Provisions Against Government 

Agencies ................................ 11
V.

VI.
Sect i oris C ................... ......... . 14
EEOC Conciliation Activities ............... 16

VII. Responsibilities of the Office of Federal 
Contract Compliance and the Secretary 18

VIII. Judicial Supervision .......... . 20

IX. Approval of the Decrees Without Prior 22

X. Unresolved Questions Regarding the
Meaning of the Decrees ................. 24

-1-





TABLE OF AUTHORITIES

CASES

Alexander v. Gardner-Denver Company, 39 L. Ed.
2d 147 (1974) _____................_________.....____ 5, 6

American Home Improvement Co. v. Maclver, 105
N. H. 435, 201 A.2d 886 (1964) .......................  10

Bracey v. Luray, 161 F.2d 128 (4th Cir. 1947) .......... 6
Brooklyn Savings Bank v. O'Neil, 324 U.S. 697

(1945)     7
Pranks v. Bowman Transportation Company, 495

F . 2d 398 (5th Cir. 1974) .................... ........  20
United States v. Trucking Employees, Inc.

No •74-1 53. n.D.C.) ........................... ........ 3, 4
United States v. United States Steel Corp.,

(Civ. No. 70-906, N.D. Ala.) ...............--- ----- 2, 20
United States v. Georgia Power, 474 F.2d 906

(5th Cir. 1973) ..................................... 3
U'rbino v. Puerto Rico R.R. Co., 164 F.2d

(1st Cir. 1947) .................................. ..... 6
Vermont v. New York, 41 L. Ed. 2d 61 (1974) ............ 11
Williamson v. Bethlehem Steel Corp., 468 F.2d 

1201 (2d Cir. 1972), cert. den. 411 U.S.
973 (.1973) .................... .......... ...... . 15

Page

-ii-





42 UoSoC. § 2000e-5(b) ......................--- - 5
42 U.S.C. § 2000e-5 (f) (1) ..................... . 14, 17

Fair Labor Standards Act .......................... 6 > < • 8

OTHER AUTHORITIES

Executive Order 11246 ....................... . 18, IS
Uniform Commercial Code, § 2-303 (1) ............... 16

CASES

Corbin on Contracts, § 128 ................ 10

STATUTES AND REGULATIONS

Page

- i i i -





IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT 

NO. 74-3056

UNITED STATES OF AMERICA, et ai.,
Plaintiffs-Appellees,
- vs -

ALLEGHENY-LUDLUM INDUSTRIES, et al.,
Defendants-Appellees, 

SIDNEY HARRIS, et al.,
Inte-rvenors-Appellants.

On Appeal From The United States District Court 
For The Northern District of Alabama

REPLY BRIEF FOR INTERVENOES-APPELLANTS

Interveners submit this brief in reply to the briefs on 
behalf of the Defendant-Appellee Companies (hereinafter cited as 
"Companies' Brief"), the Union Defendant-Appellee (hereinafter 
cited as "Union Brief") and the United States, et al. as Plaintiffs 
Appellees (hereinafter cited as "Government Brief"). This brief 
is divided into sections corresponding to the issues raised by 
Appellees.



*



UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT 

No. 74-3056

UNITED STATES OF AMERICA, et al.,
Plaintif f s-A ppe11e e s ,

v .
ALLEGHENY-LUDLUM INDUSTRIES, et al.,

Defendants-Appellees,
SIDNEY HARRIS et al.,

Intervenors-Appellants.

On Appeal From The United States District Court 
For The Northern District of Alabama

REPLY BRIEF FOR INTERVENORS-APPELLANTS

JACK GREENBERG 
JAMES M. NABRIT, III 
BARRY GOLDSTEIN 
MORRIS J. BALLER 
CHARLES STEPHEN RALSTON 
ERIC SCHNAPPER

10 Columbus Circle 
Suite 2030
New York, New York 10019

Counsel for Intervenors-Appellant





1• Waiver of Injunctive Relief
Still unresolved is whether the District Court approved 

any waiver of injunctive relief, or understood the Decrees to 
require such a _waiver. The arguments in the brief of the United 
States deal solely with the propriety of a waiver of accrued back 
pay. Government Brief, pp. 33-38. The companies assert that the 
District Court, in describing the waiver as a "back-pay"release , 
was using a "shorthand term" for back pay and injunctive relief. 
Companies' Brief, p. 41. Nothing in the record suggests the 
District Court thought it was using shorthand.
* The defendants, in supporting the validity of a waiver of 

any right to injunctive relief, rely primarily on the contention 
that the Decrees will work and that additional injunctive relief 
will not be necessary. Union Brief, pp. 26-28; Companies' Brief, 
pp. 38-40. If the Decrees are as successful as the parties hope, 
the waivers will prove unnecessary. The issue in this appeal is 
what rights employees will have if the Decrees fail to end dis­
crimination as quickly as possible. The critical difference be­
tween the decrees in this case and that in United States v.
United States Steel Corp., (Civ. No. 70-906, N.D. Ala.) is that 
in the United States Steel case the employees retained the right 
to seek additional or inconsistent relief if necessary. In the 
instant case the proposed release, as construed by the defendants, 
would deny emx-Jloyees not only that right, but even the right to 
enjoin violations of the Consent Decrees themselves.

2



•

.

> ' •' ■ ■ - ' ■' ■ , ’ ! ..



No serious contention can, or appears to be made, that the 
United States could not settle a case such as this without a 
waiver of an employee's right to seek injunctive relief. In the 
years prior to United States v. Georgia Power, 474 F.2d 906 (5th 
Cir. 1973), which established the Government's right to seek back 
pay, the United States regularly settled actions for injunctive 
relief without the execution of any releases whatever. In United 
States v. Trucking Employees, Inc., (No. 74-153, D.D.C.), the 
Department of Justice and EEOC settled a nationwide Title VII 
case against the trucking industry, obtaining both injunctive 
and monetary relief. The release agreed to by the defendant 
employers in that case is limited to a waiver of accrued back pay 
claims; no waiver of rights to seek injunctive relief is involved.

II. Waiver of Prospective Back Pay Claims
While the precise meaning of the Decrees remains unclear, 

they may require a release of back pay accruing after the effective 
date of the release or of the execution of the waiver, including 
back pay accruing because of the future effects of past dis­
crimination (1) where the Decrees enable an employee to reach his 
rightful place as quickly as possible but not at once, (2) where 
the Decrees prove unsuccessful and do not enable an employee to 
reach his rightful place as quickly as possible, or (3) where an 
employee does not reach his rightful place as quickly as possible 
because the Decrees are violated. The arguments in the brief of: 
the United States appeal" to deal solely with the propriety of a

3



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:'v f? ru - -yv.h>:

•



waiver of back pay already accrued. Government Brief, pp. 33-38. 
The Union assumes the release will cover the first variety of 
future back pay. Union Brief, pp„ 23-32.. None of the parties 
suggest whether the second or third types of waiver may be in­
volved.

The union defends a. prospective waiver of back pay claims 
on the assumption that minority employees will in fact reach their 
"rightful place" as soon as possible. But the danger of , such a 
prospective waiver is precisely that it removes the primary 
incentive —  that of potential back -pay liability —  which would 
encourage the defendants to comply with the Decrees and to assure
that they work. If a prospective waiver is upheld, the companies,

*

union, and white employees will have•nothing to lose, and every­
thing to.gain, by postponing as long as possible the day when 
minority employees obtain the jobs to which they are entitled and 
white employees no longer enjoy the benefits of preferential
treatment.

No serious contention can, or appears to, be made that the 
United States could not settle a case such as this without a
prospective waiver of back pay rights. In United States_v.
Trucking Employers, Inc. (No. 74-153, D.D.C.) the Government 
settled a pattern or practice action much like this one. Although 
the consent decree in that case does contemplate a waiver, that 
waiver, according to the Department of Justice and E.E.O.C., 
will only cover back pay which accrued before the effective date of 
the decree. No reason appears why such an arrangement could not 
have been agreed upon in this or other cases.

4



V,'  ' :



I1I. Waiver of Accrued Back Pay
Each of the appellees grounds its argument in support of 

the validity of a waiver of back pay on the policy of Title VII 
favoring conciliation. Government Brief, p. 31; Union Brief, 
p. 16; Companies' Brief, pp. 13-23. Appellees suggest the goal of 
Title VII is the settlement of all discrimination charges, re­
gardless of whether the discriminatory practice is actually 
remedied. This argument misconceives the nature of the relevant 
statutory policy.

Title VII favors the use of conciliation, instead of un­
necessary litigation, to obtain relief which in fact fully remedies 
any violation of the law. Section 706(b), 42 IJ.S.C. §2000e-5 (b) ,

If the Commission determines after such 
investigation that the charge is true, the 
Commission shall endeavor to eliminate any 
such unlawful employment practice by informal 
methods of conference, conciliation, and 
persuasion.

(Emphasis added) . Similarly in Alexander v. Gardner-Denver
Company, 39 L.Ed.2d 147 (1974), the Supreme Court explained

Congress enacted Title VII of the Civil Rights 
Act of 1964, 42 U.S.C. §§2000e at seg., to 
assure equality of employment opportunities 
by eliminating those practices and devices that 
discriminate on the basis of race, color, re­
ligion, sex, or national origin. . . .
Cooperation and voluntary compliance were selected 
as the preferred means for achieving this goal.

39 L .Ed.2d at 155-156 (Emphasis added).
The "persuasion" efforts contemplated by the statute are 

not, as here, efforts to persuade an employee to drop his charge

5



.

' , ■■■■■; i  "



or to accept a less than complete remedy, but to persuade the
employer to obey the law and to fully redress past violations.

In view of the overlapping remedies created by Congress,
the most efficacious method of remedying past discrimination may
involve cumulating past partial relief in several forums.
Compromise within any one forum would be proper so long as it did
not impinge on the availability of other independent forums. See
Interveners1 Brief, pp. 22-30. Appellees rely heavily on certain
dictum in Alexander that an employee's right to pursue a Title- y

VII action might under certain circumstances be waived.
Government Brief, p. 30, Union Brief, pp. 23-24; Companies'. Brief

*

pp. 41-42. But the dictum relied on does not appear to mean 
more than that an employee, in the context of a pending private 
Title VII action, may waiver his right to pursue that action in 
return for a partial settlement, so long as other remedies are not 
impaired. Similarly, in the cases on which appellees rely 
sanctioning waivers under the Fair Labor Standards Act, the em­
ployees only compromised their claims in the context of a private 
civil action and actually received 100% of the back pay to which
they were entitled. See Urbino v. Puerto Rico R.R. Co., 164
F,2d 12 (1st Cir. 1947); Bracey v. Luray, 161 F.2d 128 (4th Cir. 
1947).

The appellees also assert that the Government could not 
negotiate settlements of its own litigation unless, as a condition

1/ The language relied on is dictum, not only in the sense that, 
it was unnecessary to the decision in Alexander itself, but also 
because it involved a question which was not briefed or argued 
by any of the parties in the Supreme Court.

6



■

•■

■ - _ >. ii -. -



of receiving benefits under the settlement, employees were re­
quired to abandon their Title VII rights. There is nothing in the 
record in this case to support that sweeping contention. The 
Government presented no evidence, in the form of records, expert 
testimony, or otherwise, indicating that pattern and practice 
suits could not be settled without such releases. This is clearly 
a contested question of fact not decided in the District Court, and 
cannot be resolved on the basis, of assertions in appellate briefs. 
In fact both the Government and private litigants have in the past 
settled employment discrimination litigation, including settle­
ments with back pay, without providing for any releases, and in 
some cases where the settlement authorized releases the defendants 
have declined to actually require such releases. Moreover, 
Intervenors suggest that, if the Department of Justice believes 
it will not be able to settle these suits without requiring waivers 
which abolish employees' independent private remedies, the 
Department should make that argument, not to the courts, but to 
Congress which first established those independent remedies.

In the analogous area of claims for minimum wages under the 
Fair Labor Standards Act, the Department of Labor has settled tens 
of thousands of cases involving back pay without requiring an 
employee to execute a re],ease in return for the bacK pay obtained 
by the Government. The Department of Labor explained its position
in an amicus brief in Brooklyn Savings Bank v._O 1 lSieil_, 324 U.S.
697 (1945).

The Administrator has disposed of thousands 
of cases of violation, with and without litiga­
tion, on the basis of restitution of the unpaid

7



.

•

.



wages alone. This occurs in the course of 
investigations, in which violations are dis­
covered, and also in the negotiation of 
consent decrees. Often as a practical matter 
the employer will agree to restitution of the 
base liability, but not the liquidated damages.
The Administrator cannot compel the payment 
of the latter, and there is a good chance that 
the employees, or many of them, will never 
assert their rights themselves. The collection 
of the base liability, even though it may not 
fully reimburse the employees, is in their 
interest and in conformity with the purposes of 
the Act.

In disposing of cases on this basis the 
Administrator informs employees that the re­
stitution is without prejudice to the employees' 
rights to liquidated damages under Section 
16(b). Indeed, where the employer insists upon 
a release from the employees, instead of the 
usual formal receipt (printed on page 18 of 

, Petitioner's brief in No. 445), the Wage and
Hour Division informs the employer that it does 
not approve or reqognize the substitute form.
The Administrator is thus extremely careful ,-̂4- p. ̂ -i -Prr •—i w v -/ v-. n 4- — Q f  CHipi O VC G tO
liquidated damages; he properly recognizes 
that he has no authority to enforce or to fore­
close such rights.

Brief of the United States in No. 445, October Term, 1944, pp. 17- 
If the Government was able to settle cases under the Fair Labor 
Standards Act without requiring waivers, there is no reason to 
believe the Government could not settle employment discrimination 
cases if such waivers were not permitted.

Appellees urge) that this Court adopt a blanket rule approv­
ing, as consistent with public policy, all waivers of back pay 
claims. Public policy, however, precludes this Court from sanct­
ioning a scheme whereby minority employees owed $5,000 or $10,000 
in back pay would receive only $250. Such an arrangement woulc 
fall tragically short of effectuating the purposes of litle VII



.



and would reduce the deterrent effect in future cases of the 
possibility of back pay liability. Title VII could be rendered 
nugatory if an employer could insulate himself from back pay 
liability by periodically offering his employees a few dollars 
in return for a waiver of their accrued back pay rights.
Resolution of Title VII claims in the courts, or under the 
auspices of the E.E.O.C., would quickly be replaced by wholesale 
nullification of those claims by employers who chose to buy 
up the rights of their employees. Even in the context of the in­
stant Consent Decrees, the parties ask that the releases be 
validated without any evidentiary hearing as to whether the back 
pay provided by the Decrees bears any reasonable relation to the 
amount of back pay actually owed.

If a choice must be made between the Appellees' proposal, 
that all waivers of back pay are valid regardless of the amounts 
involved, and the Interveners proposal, that no such waivers are 
valid, the latter alternative is clearly to be preferred.
Defendants in pattern or practice suits will not insist on re­
leases as part of any settlement if, as a matter of law, such re­
eases are not available. In such a situation an employer anxious 
to avoid litigation will seek to do so, not by buying up the rights 
of his employees, but by a back pay settlement so substantial that 
employees will have little to gain by suing for more, and by in­
junctive relief so effective that employees will in fact be sat­
isfied with their jobs and disinclined to pursue litigation.

In the alternative, the Court might adopt an intermediate 
position upholding releases only where the back pay actually paid

-  3  -



;  - w ; . - “ ■' i  ■ . 1 - --

■



is sufficient to do "substantial justice" under an employee's 
particular circumstances. A waiver and seutlement which failed 
to do substantial justice would be invalid as a species of 
unconscionable contract. See Corbin on Contracts, §128;
Uniform Commercial Code, §2-303 (1); American Home Improvement 
Co. v. Maelver, 105 N. H. 435,' 201 A.2d 886 (1964). The factors 
bearing on whether the settlement worked substantial justice, 
and thus effectuated the policies of Title VII, would include (a) 
what portion the back pay settlement was of the total back pay 
to which an employee was in fact entitled, (b) the size of the 
difference, in dollars, between the settlement figure and the actual, 
back pay owed and (c) the magnitude of that difference in com­
parison with the employee's salary. Each case would turn on its 
particular facts, but such a rule would distinguish between a re­
lease in return for a $100 settlement of a $5,000 claim, which 
would be unconscionable and invalid, and a release in return for 
a $4,500 settlement of a $5,000 claim, which would be valid.
In a case such as this the District Court would not be required to 
decide in advance, for each of 60,000 employees, whether the 
settlement and release worked substantial justice; that question 
could be deferred for resolution if and when an employee sought 
to challenge, in an appropriate local federal court, the validity 
of a release executed by himself and others similarly situated.

10



- ■ .. ■ «i: — •- ■'••• •

.

■



IV. Injunctive Provisions Against Government.
Agencies

Intervenors suggested in their initial brief that 

the District Court lacked either the jurisdiction or the 

power to incorporate in the Decrees the directive of 

section C, requiring the United States to take a position 

in certain pending private actions. Intervenors' Brief, 

pp. 42-44. The same considerations apply to section 19 

of Decree I regulating EEOC conciliation procedures, 

section 16 of Decree I ancL section C regulating the O.F.C.C. 

and Secretary of Labor, and the provisions of the Decrees 

restricting the power of E.E.O.C. to commence private liti­

gation. Inasmuch as there are no considerations of lav/ 

or conceivable facts which would require the award of such 

provisions in a contested proceeding, it was inappropriate 

for the District Court to establish these requirements in 

a formal court order binding on the Secretary of Labor, 

Department of Justice, O.F.C.C. and E.E.O.C. and enforce­

able against them by a contempt proceeding.
Although these provisions are somewhat unprecedented, 

a similar situation arose in Vermont v. New York, 41 L.Ed.2d 

61 (1974). In that case, an original action in the Supreme

-11-



*

'

'



Court between two states regarding interstate boundaries, 

the parties reached a settlement after the case was filed. 

The parties, having arrived at an agreement, asked the 

Supreme Court to approve a decree embodying that, settle­

ment and to appoint a South Lake Master to supervise the 

implementation of the decree over a period of years.

Under the proposal the Master would refer to the Supreme 

Court any disputes arising under the decree. The Supreme 

Court, per curiam# refused to enter the decree or appoint 

the Master, reasoning that such action would require the 

Court to endow with the force of law, and thereafter inter­

pret and enforce, a private agreement whose provisions were 

not compelled or sanctioned by any statute or common law.

In the instant case no findings of 
fact have been made; nor has any ruling 
been resolved concerning either equitable 
apportionment of the water involved or 
the questions relative to whether New 
York and International are responsible 
for the creation of a public nuisance 
as alleged by Vermont.

The proposed South Lake Master would 
police the execution of the settlement 
set forth in the decree and pass on to 
this Court his proposed resolution of 
contested issues that the future might 
bring' forth. Such a procedure would ma­
terially change the function of the Court 
in these interstate contests. Insofar as 
we would be supervising the execution of 
the consent decree, we would be acting 
more in an arbitral rather than a judicial

-12-



' ‘ ' ' ■ * ’ :

'

-

'



manner. Our original jurisdiction here­
tofore has been deemed to extend to 
adjudications of controversies between 
States according to principles of law, 
some drawn from the international field, 
some expressing a “common law" formulated 
over the decades by this Court.

The proposals submitted by the South 
Lake Master to this Court might be pro­
posals having no relation to law. Like 
the present decree they might be mere 
settlements by the parties acting under 
compulsions and motives that have no rela­
tion to performance of bur Article III 
functions. Article III speaks of the 
"judicial power" of this Court, which em­
braces application of principles of law or 
equity to facts, distilled by hearings or 
by stipulations. Nothing in the proposed 
decree nor in the_ mandate to be given the 
South Lake Master speaks in terms of 
"judicial power." 41 L.Ed.2d at 66.

In the instant case the Decrees contain a variety of orders 

directed against the plaintiff, none of them within the 

power of the District Court to enter in a contested proceed­

ing. The judicial power of the federal courts exists to 

resolve cases or controversies on the basis of relevant- 

laws and facts, not sanction or enforce rules having no 

relation to law but desired by private litigants. To the 

extent that the Consent Decrees purport to regulate the 

conduct of the United States or its agencies, they are be­

yond the power of the District Court.

-13



-
.... " - ,5-



V. Sections C
Interveners noted in their initial brief that the pro­

blems regarding Sections C, as many other provisions of the 
Decrees, were aggravated by the failure of the District 
Court to spell out precisely what it construed the Decrees to 
mean. Intervenors' Brief, pp. 41-42. That difficulty is 
well illustrated by the briefs of the appellees.

The government appears to construe Sections C to require 
it to urge, in other courts where additional or inconsistent 
systemic relief is sought, that litigation in that forum be 
postponed to accord "a fair opportunity" for the system set 
up by the Decree to consider the proposed new relief and 
attempt to remedy the plaintiffs' Grievance. Government Brief, 
p. 26 Section 706 (f)(1), 42 U.S.C. § 2000e-5 (f) (1), expressly 
authorizes such postponements to allow "further efforts to the 
Commission to obtain voluntary compliance." Section 706(f)(1) 
also places an absolute limit on such postponements of "not 
more than sixty days." So long as the government does not 
advocate.a delay in excess of this statutory maximum it would 
not be urging the court to violate the law.

The defendant union and companies construe Section C 
differently. They appear to believe that the United States 
is obligated, whenever additional or inconsistent systemic 
relief is sought in a private action, to urge that that 
action be dismissed on the merits and with prejudice. Com­
panies' Brief, p. 34; Union Brief, p. 32. Intervenors contend, 
and the parties do not deny, that Congress directed

-14-



'
-

; '



that private actions for injunctive relief must be heard on 
the merits and in the district court where the violation 
occurred. See Williamson v. Bethlehem Steel Corp,, 468 F.2d 
1201 (2d Cir. 1972), cert. den. 411 U.S. 973 (1973). The 
District Court in the instant case could not conceivably 
order the United States to urge that other courts disregard 
the express statutory commands of Congress.

The defendants clearly envision Sections C as a method 
of preventing an aggrieved employee from ever getting a hear­
ing before any judicial forum. If Section C were upheld, 
and the United States successfully obstructed Title VII actions 
throughout the country, the only District Court which could 
hear an aggrieved employee would be that for the Northern
n  i c H -v * -i r-i 4- r\ -F 7\ 1 —. ~K rv> A *-v V C T y  3  "   ̂ 13 U u  tl.l~ vr. L  L | J r

are also united in their opposition to any such proceeding 
in the District Court below. When, in the District Court, 
the National Organization for Women and others sought to 
intervene to seek "additional or inconsistent relief," the 
companies and union vigorously opposed such a motion. The 
union argued

By allowing the filing of this pro­
posed complaint, this Court, would 
establish itself as a forum for ad­
judicating the extent to which viola­
tions have occurred in each of several 
hundred plants in the steel industry.
. . . Manifestly, there is no need 
and no justification for allowing such 
an industry-wide trial.

Union's Response to Motions to Intervene, p. 10. In the 
instant appeal, NOW seeks such additional or inconsistent

-15-



■

.



systemic relief, but the defendants urge that this is not an 
appropriate forum for such claims. Companies; Brief, pp. 58, 
60; Union Brief, pp. 48-49. If an employee in Pittsburgh 
wants additional or inconsistent relief, the companies and 
union will oppose consideration of that, relief in the Northern 
District of Alabama on the grounds that the matter should be 
resolved in the Western District of Pennsylvania, and the 
Government is obligated by Sections C to oppose relief in 
the Western District of Pennsylvania on the ground that the 
matter should be resolved in the Northern District of Alabama. 
The District Court clearly erred in accepting Sections C and 
requiring the United States to participate in this ingenious 
scheme to prevent an employee from ever obtaining a day in 
court,

V I . EEOC Conciliation Activities
The parties appear to be in disagreement as to why the 

EEOC agreed to refuse to conciliate pending charges against 
the defendants alleging systemic racial discrimination. The 
union indicates it so agreed because the defendants had told 
the government they would adamantly refuse to make any con­
cessions in any such conciliation proceedings. Union Brief, 
pp. 37-38. The companies argue that the government so agreed 
because it had gotten all the relief it wanted and believed 
the violations "wholly remedied." Companies' Brief, pp. 23- 
24. The Commission indicates it agreed to there provisions 
because the Decrees constituted a "just resolution" of the

1 6 -





problems, presumably less than the Government wanted but 
enough for a fair deal. Government Brief, p. 40. None of the 
parties contend the E.E.O.C. reviewed all or any of the pending com­
plaints to determine whether the Decrees would remedy systemic 
discrimination as it affected the complainant.

None of these reasons, or any others, would warrant the 
entry of Section 19 of Decree I, forbidding the EEOC to 
engage in conciliation. Title VII is explicit in requiring 
the EEOC to attempt conciliation whenever the Commission con­
cludes "there is reasonable cause to believe that the charge 
[of discrimination] is true." In all such cases the Cora- 
mission "shall" attempt to resolve that grievance through 
conciliation. 42 U.S„C. § 2f)00e-5 (b) „ The only circumstance 
in which the EEOC need not attempt concilation is when it. 
finds there is no "reasonable cause to believe the charge is 
true," and in such a case the Commission is obligated to dis­
miss the charge. In the instant case the EEOC undenieably 
believes that pending charges of systemic discrimination are 
true; this action was brought precisely because of that 
belief. These facts establish an absolute legal obligation 
to attempt conciliation, an obligation which the EEOC cannot 
shirk and which a District Court cannot abolish.

The companies and government contend it would be in appro­
priate to require the Commission to attempt conciliation where 
it thinks an adequate or just remedy has already been obtained. 
Government Brief, p. 41; Companies' Brief, pp. 23-24. The

1 7 -





simple answer is that that is precisely what Congress, and 
the law, do require. The Commission's role in conciliation 
is not, as the parties assume, merely to advocate whatever 
position the charging party desires. Congress contemplated 
that the Commission would use its good offices to try to 
bring the parties, through persuasion and negotiation, to 
agree on a remedy which is satisfactory to both employer and 
employee and which is sufficient to fully remedy any violation 
of the law. That is precisely what the District Court 
enjoined the EEOC from doing in this case with regard to 
charges of systemic discrimination within the scope of the 
Decree.

VII. Responsibilities of the Office of Fedejcal__Con- Pnnlvfianr'o anrl Secretary of tabor
In their initial brief Intervenors argued that the Con­

sent Decrees, insofar as they affected the Office of Federal 
Contract Compliance and the Secretary of Labor, were unlaw­
ful for 4 reasons: (I) the Decrees under certain circumstances
forbid the O.F.C.C. and contracting agencies from canceling 
contracts with the defendants on the ground of racial J j. s  

crimination, (2) the standard for reviewing the actions of 
the defendants is not whether they are in compliance with 
Executive Order 11246, but.whether they are in compliance with 
the Consent Decrees, (3) the final decision as to whether the 
defendant companies are in violation of the Executive Order 
is not in the hands of Secretary of Labor or his designee,

-18-





but the Audit and Review and Implementation Committees sub­
ject to judicial review, and (4) the defendants are released 
from their obligation to provide the information required 
in Compliance Reviews, and neither the O.F.C.C., the Secretary 
of Labor or any designee is empowered to conduct the Compliance 
Reviews required by law. Interveners' Brief, pp. 56-68.

The companies urge at length that the Secretary of Labor 
could designate the government representative to the Audit 
and Review or Implementation Committees as the federal official 
responsible for carrying out the requirements of Executive 
Order 11246 and the Regulations thereunder. Union Companies' 
Brief, pp. 26-28. But the problem is not that the Decrees 
change the federal official responsible for enforcing the 
Executive Order and Regulations, but that the Decrees alter 
and severely limit the powers of any enforcing official to 
insure compliance with the Order and Regulations.

The companies and Government stress that certain aspects 
of the Decrees, notably those dealing with affirmative action 
and goals, incorporate by reference existing O.F.C.C. standards. 
Companies' Brief, pp. 26-27. The defect in the Decrees, how­
ever, is that other of its substantive provisions are not 
necessarily the same as the Executive Order and Regulations 
and that the Decrees purport to abolish the enforcement pro­
cedures established by law.

19





VIII. Judicial-Supervision
The question posed by this aspect of the Decrees is 

whether the District Court erred in failing to require the 
filing of detailed periodic reports sufficient to permit it 
to determine whether the defendants were complying with the 
Decrees and whether the Decree's were proving successful in 
eradicating racial discrimination.

The same issue arose in Franks v. Bowman Transportation
Company, 495 F.2d 398 (5th Cir. 1974), where the district
court granted certain injunctive relief but refused to require
any reporting. This Court reversed :

Bowman maintained blatantly discriminatory 
policies at least until September of 1971, 
over five years after the passage of Title
VII. Since that time it has moved some 
distance toward complying with Title VII's 
mandates, but only under pressure from 
government agencies and in the fare of 
threatened . litigation . . . The district
court should retain jurisdiction of this 
case for at least two years and require 
periodic reports from Bowman which will 
enable it to ascertain that the remedial 
measures it mandates are being carried in­
to effect.

450 F.2d at 421.
In United States v . United States Stee.i, on which the 

parties claim to have modeled the instant Decrees, detailed 
reporting was required to assure that the complex problems 
of discrimination in the steel industry were fully remedied.
5 EPD 18619, pp. 782 0-21. The order in United States, Stee_l 
required a detailed report on all present employees, includ­
ing their race, seniority, job title, line of progression,

20





and annual wages, as well as annual reports concerning (1) 
details of all promotions, including identity of bidding 
employees and the race of the successful bidder (2) iden­
tities of and information regarding all "helpers" qualifying 
for special required training (3) identities of and information 
regarding employees given on-the-job training (4) identites 
of and information regarding employees bidding for and winning 
apprenticeships (5) identities of and information regarding 
all persons hired to clerical and technical positions (6) 
identities of and information regarding all persons enrolled
in the management training program (7) identities of and in- 
«■
formation regarding all persons appointed to supervisory posi­
tions (8) current lists, with race and background, of all 
supervisory personnel at general forman level or below (9) 
detailed information concerning employees affected by reduc­
tions in force and (10} detailed information regarding the 
use of the "red circling" provisions. None of this informa­
tion will be provided to the District Court under the Consent 
Decrees.

The defendants note that, pursuant to Audit and Review 
Committee Directive No. 1, written records shall be "made 
available" to the District Court of the actions of the Audit 
and Review Committee and the Implementation Committees, Union 
Brief, pp„ 42-43; Companies Brief, p. 53. This Directive 
does not, however, cure the defect in the Decrees. (1) To 
ascertain the effectiveness of the compliance with the Decrees,

21 -



;  i'  7  . 7  . . . 7 : . , .7 - ; : 7  ;«■■■ ■' ‘

'

-



the District Court needs detailed specific information 
on hiring, firing, promotions, lay-offs, red-circling, etc., 
by the defendants. The "records" covered by Directive No. 1 
contain none of this information, but are merely minutes of 
Committee meetings. (2) Control over the contents of these 
records is completely in the hands of the parties, and in the 
case of the Implementation Committees in the hand of the 
defendants, and they are free at any time to repeal the Direc­
tive itself (3) Certain records will be "supplied" to the 
Audit and Review Committee, but will merely be "available" 
to the District Court if it wants them; the District Court, 
however, has not asked to be furnished with copies of there 
records or any others.

IX. Approval of Decrees Without Prior Notice
The Government and companies argue, in essence, that 

even if the District Court erred in approving the Consent 
Decrees without prior notice to any interested parties, that 
question is now moot because the District Court did permit the 
named intervenors to intervene and. litigate their contentions 
regarding.the lawfulness of the Decrees. Government brief, 
pp. 24-26; Companies' Brief, pp. 54-56.

While this is a correct description of the facts, it 
does not render this question moot. There are literally 
thousands of minority steelworkers who were not provided with 
an opportunity to object to provisions of the Decrees. None 
of the employees with pending EEOC charges, and none of the



■

/



plaintiffs in private actions, were provided with advance 
notice as to the entry of the Decrees. How much these employees 
or their counsel now know about the Decrees is at best a 
matter of speculation, and certainly varies widely. Appellants 
intervened for the express purpose of assuring that all 
aggrieved employees, to the extent practicable, were given 
adequate notice and an opportunity to be heard prior to final 
approval of the Decrees. Appendix, pp. 100a-.10.la. That 
relief was not granted by the District Court, and is properly 
raised for review in this appeal.

23





'x • Unresolved Questions Regarding the Meaning 
of the Decrees.

In their initial brief Interveners noted that there 
was substantial uncertainty as to the meaning of the 
Consent Decrees, and, thus, as to the meaning of Judge 
Pointer's orders of May 20, 1974, and June 7, 1974, 
refusing to set aside the Decrees. Intervenors had thought, 
that this situation might be clarified by the brief of the 
appellees, but that has not occurred. Since this appeal is 
to review the decisions of the District Court refusing to 
set aside the Decrees, the significance and correctness of 
the District Court's orders of May 20, 1974, and June 7, 19/4, 
depends in large measure on what the District Court underscood 
the Decrees to mean. The record in this regard is less 
than clear, and cannot be clarified nunc pro tunc by statements 
of the appellees on appeal .

For the convenience of the Court, Intervenors set out. 
below the questions regarding the meaning of the Decrees which 
are not resolved by the decisions of the D.j strict Couit,

(1) Does the release contemplated by Section 18(g) 
waive an employee's right to sue for additional 
or inconsistent injunctive relief if the Concent- 
Decrees do not eliminate the continuing effecuo 
of past discrimination?

(2) Does the release contemplated by Section 18(g)

-24-





waive an employee's right to sue to enforce 
the Consent Decrees if the defendants fail 
to comply with their provisions?

(3) Does the release contemplated by Section 13(g) 
waive an employee's fight to sue for back pay 
or damages which may arise in the future from 
continuing effects of past discrimination 
because, although minority employees reach their 
rightful place as quickly as possibly, they do 
not reach their rightful place at once?

(4) Does the release contemplated by Section 18(g) 
waive an employee's right to sue for back pay 
or damages which may arise in the future from 
the continuing effects of past discrimination 
because the Consent Decrees do not enable 
minority employees to reach their rightful place 
as quickly as possible?

(5) Does the release contemplated by Section 18(g) 
waive an employee's right to sue for back pay 
or damages which may arise in the future from 
the continuing effects of past discrimination 
because the defendants did not comply with the 
Consent Decrees?

-25-



V-:



(6) Does Sections C require the United States 
to urge, when an employee seeks additional 
or inconsistent injunctive relief, that the 
court in which that relief is sought dismiss 
the action, or merely stay the action pending

. operation of the Decree mechanisms?

(7) If Sections C require the United States to 
merely advocate postponement, is the United 
States required to advocate a stay of only .
60 days, or to seek a stay of indefinite 
duration pending a final decision under-the 
Decree mechanisms?

/ r-% \ -r- r- ...... _  .. . - _ T k , .. n  /■* < * - —  ~  - - - - ' ■ i
\L> } j f c i o  c l  o_ u„ _c c- U i .  g c u u x u a  u  u j  i t f  W i . o c  /

a court in which an employee seeks additional 
or inconsistent relief stays or dismiss that 
action because of the Consent Decrees, would the 
employee be entitled to a hearing on the merits 
of his claim in the Northern District of Alabama 
in the instant action?

(9) Do Sections C preclude the EEOC from seeking, in 
other civil actions against the defendants for 
past discrimination, (a) back pay or injunctive 
relief for any employee injured by a discrete, 
non-systemic act of discrimination, (b) back pay 
for any minority employee hired since 1968

-26-



■

'

'



(13) Do Section C and 17 limit the power 
of the U.F.C.C. Secretary of Labor, or 
contracting agencies to cancel or refuse
to enter into contracts with the defendants 
because of discrimination in employment?

(14) If the O.F.C.C. Secretary of Labor or 
contracting agencies retain the power to
so cancel or refuse to enter into contracts 
with the defendants, (a) may they do so 
whenever they conclude there has been such 
unlawful discrimination, or only when the

*

Decrees are violated, and (b) is the decision 
as to whether there has been such discrimination 
or a violation of the Decrees to be made by the 
Government, the Audit Review Committee, or the 
District Court?

In addition there are several questions of fact, external 
to the meaning of the Decrees themselves, which may affect 
their validity.

(1) What portion of the back pay actually owed to
minority employees w7ill they actually receive under 
• the Consent Decrees?

- 2 8 -



.

■ ■ ■ J§

■



and subject to systemic discrimination (c) back pay 
or preferential hiring or seniority status for 
applicants previously rejected by defendants 
because of their race, sex, or national origin, 
or (d) back pay or preferential hiring or 
seniority status for former employees subject 
to systemic dismissal because of their race, 
sex, or national origin?

(10) Does Section 10 require the EEOC to advise a charg­
ing party to accept the relief afforded by the 
Decrees and execute the release where, a3_though 
the complaint is wholly within the scope of the 
Decrees, the EEOC Relieves the Decrees will not 
in fact provide a full, adequate, or just remedy 
for that, employee's complaint?

(11)Does Section 19 require the EEOC, in the case 
of a comxilaint wholly within the scops of the 
Decrees, to refuse to attempt conciliation if 
the charging party indicates he or she is not 
satisfied with the remedy provided to him or 
her by the Decrees?

(12) Do Sections C and 16 require that the Government 
be provided all of the information required for 
an ordinary compliance review?

-27





(2) Win at would be the effect on the ability 
of the Government to settle pattern or 
practice suits if the proposed release 
of accrued back pay were held invalid?

(3) Was back pay agreed upon in the Consent 
Decrees calculated to include compensation 
for back pay which may accrue after the 
effective date of the Decrees?

(4) Is it the policy and intention of the Government 
to make the representations describe in Sections C 
sue sponte and regardless of whether required to

on hxr -Hno D0C2T00S?

(5) Did the E.E.O.C., prior to agreeing to these Decrees, 
review each of the pending charges against the 
defendants to determine whether each charge wholly 
within the scope of the Decree would in fact be
- fully remedied by the Decrees?

For the above reasons the Court should reverse the 
decisions of the District Court of May 20, 1974, and 
June 7, 1974, and remand this case with instructions to set

2 9-





aside the Consent Decrees as unlawful.
Respectfully submitted,

CHARLES STEPHEN RALSTON 
ERIC SCHNAPPER 
MORRIS J. BALLER

10 Columbus Circle 
Suite 2030
New York, New York 10019

OSCAR W. 21DAMS 
JAMES K, BAKER 
U.W. CLEMON 
CARYL P„ PRIVETT

2121 Building - Suite 1600 
2121 Eight Avenue North Birmingham, Alabama 3520u

D i'T X  x i i

KENNETH JOHNSON
NORRIS RAMSEY

711 St. Paul Street 
Baltimore, Maryland 21201

BERNARD D. MARCUS
415 Oliver Building 
Pittsburgh, Pennsylvania 
15222

GABRIELLE K. MCDONALD
MARK T. MCDONALD

1834 Southmore Boulevard 
Houston, Texas 77004

NATHANIEL R. JONES
WILLIAM D. WELLS 

N.A.A.C.P.
1790 Broadway
New York, New York 10019

-30-





J. RICHMOND PEARSON
1630 Fourth Avenue, North 
Birmingham, Alabama 35203

Attorneys for Appellants- 
Intervenors

CERTIFICATE OF SERVICE
I hereby certify that on this 23rd day of October, 

1974, two copies each of Intervenors-Appellants' Reply 
Brief were served on counsel for the parties by United 
States mail, air mail, special delivery, postage prepaid,

addressed to;
Michael Gottesman, Esq.
Brehoff, Cushman, Gottesman & Cohen 
1000 Connecticut Avenue 
Washington, D.C. 20036
James R. Forman, Jr., Esq.
Thomas, Taliaferro, Forman, Burr & Murray 
1600 Bankrfor Savings Building 
Birmingnaxu, Aiajjcuua u_>
Marian Halley, Esq. _ , .Equal Employment Opportunity Commission
Wash.ington, D.C. 20506
Judith Lonnquist, Esq.
201 N. Wells - Suite 2122 
Chicago, Illinois 60606





UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT 

No. 74-3056

UNITED STATES OF AMERICA, et al.,
Plaintiff s-Appel.lees,

v .
ALLEGHENY-LUDLUM INDUSTRIES, et al.,

Defendants-Appellees,
SIDNEY HARRIS, et al. ,

Intervenor3-Appellants.

On Appeal From The United States District Court 
For The Northern District of Alabama

BRIEF FOR INTERVENORS-APPELLANTS

JACK GREENBERG 
JAMES M. NABRI.T, III 
BARRY GOLDSTEIN 
MORRIS J. BALLER 
CHARLES STEPHEN RALSTON 
ERIC SCHNAPPER

10 Columbus Circle 
Suite 2030
New York, New York 10019

Counsel for Intervenors-Appellonts





UNITED STATES COURT OP APPEALS
FOR THE FIFTH CIRCUIT 

No. 74-3056

UNITED STATES OF AMERICA, et al.,
Plaintiffs-Appellees,

v .
ALLEGHENY-LUDLUM INDUSTRIES, et al.,

Defendants-Appellees, 
SIDNEY HARRIS, et al.,

Intervenors-Appellants.

CERTIFICATE REQUIRED BY FIFTH CIRCUIT 
___________LOCAL RULE 12(a)__________ _

The undersigned, counsel of record for Intervenors- 
Appellants, certifies that the following listed parties 
have an interest in the outcome of this case. These repre­
sentations are made in order that Judges of this Court may 
evaluate possible disqualification or recusal pursuant to 

Local Rule 12(a).
(a) Defendants who (i) might be required to afford 

certain additional injunctive or back pay re­
lief, (ii) might lose the services of the 
United States in defending private actions

1





for such relief, (iii) might be required to 
provide information for compliance reviews and 
face termination of government contracts, and/ 
or (iv) might be required to provide the 
District Court with information or reports 
needed for adequate judicial supervision of 
the instant Consent Decrees:

Allegheny-Ludlum Industries, Inc.
Armco Steel Corporation
Bethlehem Steel Corporation
Jones & Laughlin Steel Corporation
National Steel Corporation
Republic Steel Corporation
United States Steel Corporation
Wheeling-Pittsburgh Steel Corporation
Youngstown Sheet & Tube Company
United Steelworkers of America, AFL-CIO-CLC.

(b) Intervenors who (i) might be entitled to certain 
additional injunctive or back pay relief, (ii) 
might have to litigate against the United States 
in private actions for such relief and/or (iii) 
might be denied conciliation or representation by 
the E.E.O.C. because of the instant Consent Decrees 

Sidney S. Harris, Willie J. Fonville,
Paige A. Millhouse, Albert Everett,
Nathaniel King, Ron Walker, John S. Ford,

2



* 'A-' •



Willie Cain, Willie L. Coleman,
Joe N. Taylor, Robert Cain, David 
Bowie, Earl Bell, Bernard Lane,
Ellis Lewis, Levy Mazyck, George 
Mercer, Robert Skates, Jimmie L.
Rodgers, John A. Turner, John Taylor,
Luther Reden, C. L. Garland, L. C. Waker,
James L. Allen, Joseph Kimbrough, Joe 
Bryant, Joseph Faulkner, Isaiah Hayer, III.

The class of all black steelworkers who are 
employed by the defendant companies, who have 
been employed, or who may in the future be so 
employed, and whose rights may or will be affected 
by the instant Consent Decrees.

Eric Schnapper / /
Attorney of Record for Intervenors

Appellants

3





TABLE OF CONTENTS

Statement of the Issue ............................
Table of Authorities...............................Statement of the Case ............................
ARGUMENT ...........................................
' A. THE DISTRICT COURT SHOULD HAVE SET ASIDE 

THE CONSENT DECREES BECAUSE THEIR ' 
PROVISIONS ARE CONTRARY TO LAW ...........
I. Section 18(g) of Decree I Unlawfully 

Requires Minority Employees to Waive 
Their Rights to Maintain Private 
Litigation to Remedy Employment 
Discrimination As a Condition of 
Obtaining Benefits Under an Action 
by the United States .................
1. Prospective Waivers ...............
2. Interference with Independent

Remedies ........................
3. Inadequate Back Pay Relief . . . .

II. Section C of Decrees I and II Unlaw­
fully Requires the United States to 
Oppose Private Litigation Seeking 
Greater Systemic Relief Than Obtained 
by the United States Under the 
Decrees ................................

III. Decrees I and II Unlawfully Restrict 
the Power of the E.E.O.C. to 
Maintain Actions Under Section 
706(f)(1) of Title VII of the 1964 
Civil Rights Act .....................

IV. Section 19 of Decree I Unlawfully
Restricts the Power of the E.E.O.C. 
to Conciliate Charges of Discrimina­
tion Under Section 706(b) 
of Title VII of the 1964 Civil Rights 
Act ..................................

Page
iii
v
I
3

5

5
19

V.'/.

31

40

48

53

- i





Page
V. Section C of the Decrees and Section 

16 of Decree I Unlawfully Limits 
the Authority of the Office of 
Federal Contract Compliance and 
the Secretary of Labor ...............

VI. Decrees I and II Unlawfully Fail 
to Provide for Adequate Judicial 
Supervision of the Decrees ...........

B. THE DISTRICT COURT SHOULD NOT HAVE APPROVED 
THE DECREES WITHOUT FIRST AFFORDING A 
REASONABLE OPPORTUNITY FOR COMMENT AND

. INTERVENTION-BY INTERESTED P A R T I E S ......... 77
CONCLUSION...........................................  89

li





STATEMENT OF THE ISSUE

Should the Consent Decrees approved by the District 
Court be set aside in whole or in part :

(1) because Section 18(g) of Decree I unlawfully 
requires minority employees to waive their 
rights to maintain private litigation to 
remedy employment discrimination as a con­
dition of obtaining benefits under an action 
by the United States ;

(2) because Section C of Decrees I and II unlaw­
fully requires the United States to oppose 
private litigation seeking greater systemic 
relief than obtained by the United States in 
their action ;

(3) because Decrees I and II unlawfully restrict 
the power of the Equal Employment Opportunity 
Commission to maintain actions under Section 
706(f)(1) of Title VII of the 1964 Civil 
Rights Act-;

(4) because Section 19 of Decree I unlawfully 
restricts the power of the Equal Employment 
Opportunity Commission to conciliate charges 
of discrimination under Section 706(b) of 
Title VII of the 1964 Civil Rights Act;

iii



...

i

'



(5) because Section C of the Decrees and 
Section 16 of Decree I unlawfully limits 
the authority of the Office of Federal 
Contract Compliance and Secretary of Labor;

(6) because Consent Decrees I and II unlawfully 
fail to provide for adequate judicial super­
vision of the Decrees; or

(7) because the District Court approved the 
Decrees without first affording a reasonably 
opportunity for comment and intervention by 
interested parties.

- iv -





TABLE OF AUTHORITIES

Page

Adams v. Richardson, 351 F. Supp. 636 (D.D.C. 1972),
480 F.2d 1159 (D.C. Cir. 1973) ...................... 12,61

Alexander v. Gardner-Denver Company, 39 L.Ed.2d
147 (1974)...................................... 17,21,22

23,27,29,37
Alexander v. Holmes county Board of Education,

396 U.S. 19 (1969) .... .............................  12
Ashwander v. Tennessee Valley Authority, 297 U.S.

288 (1936) ... ............ ..........................  88

Baker v. California Shipbuilding Corporation, 73
F. Supp. 322 (S.D. Cal. 1947) ......................  34

Beverly v. Lone Star Lead Const. Corp., 437
F. 2d 1136 (5th Cir. 1971) ................ ..........  27

Bingham v. Airport Limousine Service, 314 F. Supp.
565 (W.D. Ark. 1970) ............    16.34

Boles v. Union Camp Corp., 5 EPD 5 8051 (S.D. Ga.
1972) .................................    25

Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th
Cir. 1969) ........................    29

Boyd v. Grand Truck Western R. Co., 338 U.S.
263 (1949) ............................................ 17

Brennan v. American Telephone and Telegraph Co.,
No. 74-1342 (E.D. Pa.) ..............................  5

Brooklyn Savings Bank v. O ’Neil, 324 U.S. 697
(1945) ...........................................  15,35,37

Brown v. Board of Education, 347 U.S. 483 (1954) ....  74
Boyd v. Grand Truck Western R. Co., 338 U.S. 263

(1949) ....      17

Buford v. American Finance Company, 333 F. Supp.
1243 (N.D. Ga. 1971) ................................  17,37

Bush v. Lone Star Steel Corp., 373 F. Supp. 526
(E.D. Tex. 1974) ..................................... 9'1]-

Chastang v. Flynn and Emrich company, 365 F. Supp.
957 (D. Md. 1973) ............................... 17





Table of Authorities (Continued)
Page

Cochrane v. W. F. Potts Sons & Co., 47 F.2d 1027
(5th Cir. 1931) ......................................

Davis v. Board of School Commissioners of Mobile,
402 U.S. 33 (1971) ..................................

Dickerson v. United States Steel, No. 73-1292
E. D. Pa..............................................

Durkin v. Waldron, 130 F. Supp. 501 (W.D. La. 1955)...
Duncan v. Thompson, 313 U.S. 1 (1942) ................
E.E.O.C. v. Eagle Iron Works, 367 F. Supp. 817

(S.D. Iowa 1973) . ............ .......................
Farkas v. Texas instrument, Inc., 375 F.2d 629

(5th Cir. 1967) ......................................
Farmer v. Philadelphia Electric Company, 329 F.2d 3 

(3d Cir. 1964) ............................. .........
Ford v. united States Steel Corporation, No. 73-3907 

(5th Cir.) ...........................................
Glover v. St. Louis-San Francisco Railway, 393 U.S.

374 (1969) ...........................................
Government of the Virgin Islands v. Boddle, 427 F.2d 

532 (3rd cir. 1970) .................................
Green v. School Board of New Kent County, 391 U.S.

430 (1968) ...........................................
Griffin v. county School Board, 377 U.S. 218 (1964)...
Griggs v. Duke Power Company, 401 U.S. 424 (1971) ---
Hadnott v. Laird, 463 F.2d 304 (D.C. Cir. 1972) .....
Hairston v. McLean Trucking Company, 7 EPD 9144, 

p. 8783 (M.D. N.C. 1974) ............................
Hansberry v. Lee, 311 U.S. 31 (1940) .................
Hutchings v. United States Industries, Inc., 428

F. 2d 303 (5th Cir. 1970) ...........................
In the Matter of the Bethelehem Steel Corporation, 
Decision of the Secretary of Labor, Docket No. 102- 
68, January 15, 1973.................................

In re Raabe, 71 F. Supp. 678 (S.D. N.Y. 1947) .......

43

12

8 9 , 9 0

16

16

26

5 7 , 6 1

5 7 , 6 6

3 0 , 3 1 , 6 6

4 6 , 7 2

88

2 1 , 7 4 , 7 5

21
11
61

74

87

2 8 , 3 8

9 , 1 2  

8 0

vi -



- , ■ - , . - ■■ V--

•' >' ■' X-.. , '.ax , . V  -1 U



Table of Authorities (Continued)
Page

International Brotherhood of Boilermakers, etc.
v. Rafferty, 348 F.2d 307 (5th Cir. 1965) .......... 16

J. I. Case v. N.L.R.B., 321 U.S. 332 (1940) .......... 15
Johnson v. Georgia Highway Express, 498 F.2d 714

(5th Cir. 1974) ..................................... 23
Johnson v. Goodyear Tire & Rubber Co., 491 F.2d

1364 (5th Cir. 1974) ................................. 32
Joyce v. McCrane, 320 F. Supp. 1284 (D.N.J. 1970)....  66

Keller v. Wilson, 194 A. 45 (Del. 1937) .............. 81
Lane v. Bethlehem Steel Corp., No. 71-580-H, D. Md.... 12
Legal Aid Society v. Brennan, 8 EPD 5[ 9483 (N.D.

Cal. 1974) ........................   12,62
Leisner v. New York Telephone Company, 358 F. Supp.

359 (S.D.N.Y. 1973) .......   25
Local 189 v. United States, 416 F.2d 980 (5LL Cir.

1969) ................................................  10,19
Long v. Georgia Kraft Co., 450 F.2d 557 (5th cir.

1971)   11
Louisiana v. United States, 380 U.S. 145 (1965) .....  21
Macklin v. Spencer Freight Systems, Inc., 478 F.2d

979 (D.C. Cir. 1973) ................................ 29
Martino v. Michigan Window cleaning Co., 327 U.S.

173 (1945) ...........................................  16
Mayheu's Super Liquor Stores v. Hodgson, 464 F.2d

1196 (5th Cir. 1972) ...............................  16
McDonald Douglas Corp. v. Green, 411 U.S. 792

(1973) ...............................................  26
McNabb v. United States, 318 U.S. 332 (1942) ........ 88

Moss v. Lane Company, 50 F.R.D. 122 (W.D. Va. 1970)... 18
Newman v. Avco Corp., 451 F.2d 743 (6th Cir. 1971).... 29
Newman v. Piggie Park Enterprises, 390 U.S. 400

(1968) . . . . . .......   23

Vll



~  SX , il

.

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. - / v .>£ - ■■■■ ■■: axpf?

fe « 4 % »: *' # ■» - 4 ; *>



Table of Authorities (Continued)
Page

N.L.R.B. v. General Electric Company, 418 F.2d 
736 (2d Cir. 1969), cert, dent 397 U.S. 965
(1970) ................     55

Norman v. Missouri Pacific Railroad, 414 F.2d
73 (8th Cir. 1969) .................................  26

Pettway v. American Cast Iron Pipe Company, 411
F.2d 998 (5th Cir. 1969) ..........................  32,51

Pettway v. American Cast Iron Pipe Company, 494
F.2d 211 (5th Cir. 1974) .......................... 11,12,26

Philadelphia, etc. R.R. Co. v. Schubert, 224 U.S.
603 (1912) ...............................    16,36

Pittsburgh, etc. R.R. Co. v. Fink, 250 U.S. 577
(1919) ..............................    16

Pyle-National Co. v. Amos, 172 F.2d 425 (7th cir.
1949) ..............................................  81

Oubichon v. North American Rockwell corn., 482 R,2d
569 (9th cir. 1973) ................. ‘ ............  29

Raney v. Board of Education of the Gould School
District, 391 U.S. 443 (1968) ..................... 75

Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir.
1971) ..........................................  12,18,27,32

Rodgers v. United States Steel, No. 74-1815
(3rd Cir.) .........................................  90

Rogers v. United States Steel, No. 71-793 (W.D.
Pa.) ...............................................  14

Rosen v. Public Service Electrical and Gas Company,
328 F. Supp. 454 (D.N.J. 1970) ..................... 18

Sanchez v. Standard Brands, 431 F.2d 455 (5th cir.
1970)    13

Schulte v. Gangi, 328 U.S. 108 (1946) ...............  35
Service v. Dulles, 354 U.S. 363 (1957) .............  61
Sheldon v. Sill 49 U.S. (8 How.) 440 (1850) .......  43
Swann v. Charlotte-Mecklenburg Board of Education,

402 U.S. 1 (1971) ..................................  21,75
Taylor v. Armco Steel corporation, 419 F.2d 498

(5th Cir. 1970) ...........    26
- viii -



V

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Table of Authorities (Continued)

Paqe
Thomas v. United States, 200 F.2d 686 (1st. Cir. 

1952) ... ....................................... . 37
Tipler v. E. I. DuPont Co., 432 F.2d 125 (6th Cir. 

1971) ............................................... 26
Torres v. American Railroad Company of Porto Rico,

152 F .2d 255 (4th Cir. 1946), cert, denied, 329 
U.S. 782 (1947) .................................... 34

United States v. Barber, 442 F.2d 517 (3rd Cir.
T 9711 ............................................ 88

United States v. Bethlehem Steel Corp., 446 F.2d
652 (2d Cir. 1971) ................................. 9,12

United States v. California cooperative Canneries,
279 U.S. 553 (1929) ................................ 81

United States v. Chesapeake & Ohio Railroad Co., 
471 F.2d 582 (4th Cir. 1972), cert, denied, 411 Ti c 93 q n Q73 ) ............................. 11

__ • ,  „  ,  ,  ___ ,_• _ r s „  .... -*•*>*" n rmn «rr Ql CTUAXtea jDuaties v * ucui9xu ^wci JL  ̂*
11

United States v. Georgia Power Company, 474 F.2d 906 11,74

United States v. Hayes International, 456 F.2d 112
/c;+-T-i 1 .................................................................................. ...... 11

United States v. I.B.E.W., 428 F.2d 144 (6th Cir. 74

United States v. Ironworkers, 5 EPD 5[ 7973 (W.D. 12,74

United States v. Jacksonville Terminal Company,
451 F.2d 418, cert, denied, 406 U.S. 906 (1972) ... 11

United States v. Local 189, 301 F. Supp. 906 (E.D.
La. 1969), aff'd 416 F.2d 980 (5th Cir. 1969) .... 11

United states v. operating Engineers, Local 3, 4 EPD 24,30

United States v. Schiavo, No. 73-1855 (3rd cir.)
(Opinion dated August 8, 1974) ..................... 88

United states v. Trucking Employers, Inc., No.
74-153 (D.D.C.) .................................... 5,82

United States v. United States Steel Corp., 371 F. 
Supp. 1045 (N.D. Ala. 1973) ........................ 9,11,74

ix



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Table of Authorities (Continued)
Page

Vogler v. McCarthy, 451 F.2d 1236 (5th Cir.
1972)   73

Voutsis v. Union carbide Corp., 452 F.2d 889
(2d Cir. 1971), cert, denied 406 U.S. 918.....  29,39

Williamson v. Bethlehem Steel Corporation, 468 
F.2d 1201 (2d Cir. 1972), cert, denied 411
U.S. 911 (1973) ............................... 12,24,30,38

Wirtz v. Turner, 330 F.2d 11 (7th Cir. 1964)....  1-6
Wirtz v. William H.D. LaDew of Louisiana, Inc.,

282 F. Supp. 742 (E.D. La. 1968) .............  16

x -





Statutes
Pag.?.

28 U.S.C. § 1291 ............................ ....... 1
29 U.S.C. § 151 .....................................  4
Civil Rights Act of 1954, 42 U.S.C. § 2000d-l ......  61
42 U.S.C. § 2000e-5 (b), Title VII, § 705 (b) .....  23,53,85
42 U.S.C. § 2000e-5(f) (1), Title VII, § 705 (f) (1) . 3,4,23,46,

47,50,52,79, 
82,85

42 U.S.C. § 2000e-5(f) (3), Title VII, § 706 (f)(3) ... 46
42 U.S.C. § 2000e-5 (f) (4), Title VII, § 706 (f)(4) ... 46
42 U.S.C. § 2000e-5(f)(5), Title VII, § 706(f)(5) ... 23,46
42 U.S.C. § 2000e-5 (g), Title VII, § 706 (g) .... 31,32,33,73
42 U.S.C. § 2000e-6, Title VII, § 70/ ..........  4,79,62,85

Regulations

28 C.F.R. § 50.1 ..............   83
29 C.F.R. § 1601.22 ........  53
41 C.F.R. Chapter 60 .......................  23,57,60,62,67

41 C.F.R. § 60-1.20 ......................... -..... 58,63

41 C.F.R. § 60-1.26 ................................  58
41 C.F.R. § 60-1.27 ................................  58'65
41 C.F.R. § 60-1.40 ................................
41 C.F.R. § 60-1.6 .................................
41 C.F.R. § 60-1.7 ..........   57,64

41 C.F.R. § 60-2.1 .................................  57

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Regulations (Cont'd) Page
41 C.F.R. § 60-2.32 ..........................   57

41 C.F.R. § 60-30.1 .................................  58.65
41 C.F.R. § 60-60.1 .................................  58
41 C.F.R. § 60-60.4(b) .............................. 57

Executive Orders
E. O. 8802 (1941) ................................... 56, 77
E. 0. 9346 (1943) ................................... 56
E. 0. 10308 (1951) ........... ................•...... 56
E. O. 10479 (1953) .....................................  56
E. 0. 10557 (1954) ...............................    56
E. O. 10975 (1961) ....... ..........................  56
E. O. 11246 (1965) .................... 5,24,23,40,49,56,57,

58,59,60,62,65,67

Legislative History
Hearings before a Subcommittee of the Senate Committee 

on Labor and Public Welfare, 92nd Cong., 1st 
Sess., p. 63 (1971) ........................  27

Hearings before a Subcommittee of the House Committee 
on Education and Labor, 91st Cong., 2d Sess., 
pp. 36-37 (1969-70) .............................  27

H. Rep. No. 92-238, 92nd Cong., 1st Sess., p. 62 ---  48
S. Rep. No. 92-415, 92nd Cong., 1st Sess., p. 17 ---  51

110 Cong. Rec. 7207 (1964) .........................  23
110 Cong. Rec. 13650 (1964) ........................
118 Cong. Rec. 3642 (1972) ........................
Legislative History of the Equal Employment

Opportunity Act of 1972 ....................  28,51,53
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Page

Rule 19, Federal Rules of Civil Procedure ...........  87
Rule 23(c)(2), Federal Rules of Civil Procedure .....  87,90

Rule 59 (c), Federal Rules of Civil Procedure ........  86

Disciplinary Rule, DR 5-105 (b) ........... ...........
Disciplinary Rule, DR 5-105 (c) ......................
3B, Moore's Federal Practice, 5 24.16(2) ............  43
Department of Justice Press Release, June 29, 1961 ... 84

Other Authorities

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STATEMENT OF THE CASE
On April 11, 1974, the United States filed this action 

in the Northern District of Alabama alleging that nine major 
steel companies and the United Steelworkers of America had 
engaged in discrimination in employment on the basis of race 
and sex. Appendix, 6a-14a. The parties similtaneously pre­
sented to the District Court for its approval two Consent 
Decrees which had been agreed to by the parties before the 
action was ever filed. The next day, April 12, the District 
Court approved both Decrees. See Appendix, 184a. As between 
the original parties to this action the District Court has 
never been called upon to resolve any case or controversy, nor 
does it appear with certainty that any such disagreement requir­
ing judicial resolution will arise between the parties in the 
future.

The Decrees provide for injunctive relief and for the pay­
ment of back pay under certain circumstances. The Decrees are to 
be administered by an Implementation Committee at each plant, over- 
seen by a National Audit and Review Committee; except for a single 
government representative on the Audit and Review Committee, all mem­
bers of these committees are appointed by the defendants. Appaxiix 110a-l:

Nine days after the Decrees were entered, Appellants moved 
to intervene as party plaintiffs in the District Court and to 
set aside the Decrees as unlawful. Appendix 110a-122a. Inter— 
venors are thirty-two black steelworkers employed at steel plants . 
plants covered by the Consent Decrees. Intervenors offered no 
objection to the implementation of the substantive portion of

1



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the Decrees directing the defendants, inter alia, to modify 
their discriminatory seniority system and ordering the defendant 
to pay back pay to certain minority steelworkers. Intervenors 
disputed the legality of other provisions of the Decrees which 
have the purpose and effect of curtailing the rights of minority 
employees to obtain additional relief in instances where the 
Consent Decrees did not provide the full remedy required by law. 
Appendix, 110a-122a.

On May 20, 1974, the District Court held a hearing on 
Appellants' motions to intervene and to set aside the Decrees. 
Also heard at that time were similar motions by other individuals 
and groups seeking to intervene. At the conclusion of the hear­
ing the District Court granted Appellants' motion to intervene 
but denied the motion to set aside the Decrees. Appendix, 152a- 
165a. On June 7, 1974, the District Court amplified its decision 
in a formal Memorandum of Opinion. See Appendix, 184a-192a. 
Appellants filed a notice of appeal from that decision on July 3, 
1974. Appendix, 195a. This Court has jurisdiction of the 
appeal under 28 U.S.C. §1291.

On July 3, 1974, Appellants moved the District Court for an 
order staying those portions of the Consent Decrees whose legality 
they had questioned. None of the parties opposed that stay appli 
cation. On July 17, 1974, the District Court denied that stay 
application. See Appendix, 204a-209a. Thereafter Appellants 
applied to this Court for a stay. That application was denied
on September 6, 1974.

2



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A R G U M E N T

This appeal concerns the authority of the Department 
of Justice, Department of Labor and the Equal Employment 
Opportunity Commission to agree to, and the power of a United 
States District Court to order, a disestablishment of the en­
forcement mechanism set up by Congress and several Executive 
Orders to end discrimination in employment on the basis of 
race and sex.

In the District Court proceedings the .government charged 
the defendant companies and union with such discrimination, and 
with failing to take steps necessary to end the continuing
, -  -c   , - u  a  a  ~  ~  A  4 -  i* r p ' h o  P n n  <=:<=>n  f-  n p c r p p c ;-L -L CP C- U £3 V-/ JL D U C U  ^ - ----- — ----------  — " * ~ "

provided for certain injunctive relief aimed at ending 
discrimination and the effects thereof, and an award of back
pay to injured employees. The government did not claim that the 
injunctive relief contains all the provisions it would have 
liked, nor that every minority worker will get 100% of the back 
pay to which he is entitled —  as is common in consent decrees 
both the injunctive and monetary relief represented compromises.

In return for the injunctive and monetary relief, the 
defendants sought and obtained certain provisions designed to 
abolish the basic enforcement machinery. Under the scheme es­
tablished by Congress there are at least five overlapping 
remedies for employment discrimination —  (1) private civil 
actions under Section 706(f)(1) °f Title VII, 42 U.S.C. §1981

3



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and the duty of fair representation, 29 U.S.C. §§151 et 
secu; (2) civil actions by the E.E.O.C. for charging parties
under section 706(f)(1) of Title VII, (3) civil actions by 
the E.E.O.C. under Section 707 of Title VII alleging a 
"pattern or practice" of discrimination, (4) conciliation of 
particular complaints by the E.E.O.C. under Section 706(b) 
of Title VII, and (5) compliance reviews, investigations and hear 
ing by the Office of Federal Contract Compliance with the power 
to cancel and forbid government contracts with employers 
guilty of discrimination. Through a variety of provisions, the 
precise effect of which is not entirely clear, the Decrees re­
place this machinery with a number of committees, controlled 
or dominated by the defendants, which are supposed to ena dis­
crimination at the specitiea plants.

It is not suggested that the Department of Justice or 
E.E.O.C. themselves sought to disestablish this pre-existing 
enforcement machinery, or believe it would be best abolished. 
Rather, the government negotiators concluded that, by agreeing 
to the various provisions at issue, they could obtain additional 
concessions in the form of injunctive or monetary relief. The 
question raised by this appeal is not whether, in some sense, 
the government negotiators made a good deal in acceedrng to 
these provisions in return for better seniority rules or more 
back pay. The question, rather, is whether, when the Congress 
and President establish particular machinery to enforce the 
ban on discrimination in employment, Federal officials can

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bargain away that machinery in return for promises by employers 
that they will stop breaking the law. The problem is a novel 
one of substantial public importance; within the last year the 
(government has entered into similar arrangement involving 
hundreds of thousands of employees with the national trucking 
and telephone industry. Brennan v. American Telephone and 
Telegraph Co., No. 74-1342 (E.D. Pa.); United States v. Trucking
Employers, Inc., No.- 74-153 (D.D.C.).

A. THE DISTRICT COURT SHOULD HAVE SET ASIDE THE 
CONSENT DECREES BECAUSE THEIR PROVISIONS ARE 
CONTRARY TO LAW.

I. Section 18(g) of Decree I Unlawfully Requires Minority 
Employees To Waive Their Rights To Maintain Private 
Litigation To Remedy Employment Discrimination As A 
Condition of Obtaining Benefits Under An Action By 
The United Stares.
Paragraph 18(g) of Consent Decree I provides in

pertinent part
In order to receive such back pay each 

affected employee shall be required to execute 
a release, in a form approved by the Audit 
and Review Committee, of any claims against^ 
or liability of the Company, the Union, their 
officers, directors, agents, local unions, 
members, employees, successors and assigns, 
resulting from any alleged violations based 
on race, color, sex (exclusive of the matters 
referred to in paragraph D of this Decree), 
or national origin, occurring on or before 
the date of entry of this Decree, or any 
equal employment opportunity laws, ordinances, 
regulations, or orders, including but not 
limited to Title VII of the Civil Rights Act 
of 1964, as amended, 42 U.S.C. §§2000e e_t peg_-, 
the Civil Rights Act of 1866, 42 U.S.C. §1981 
et seq., Executive Order 11246, as amende , 
the United States Constitution, the duty of 
fair representation under the Labor Management

5



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Relations Act, 29 U.S.C. §§151 et seq. , and 
any other applicable federal, state or local 
constitutional or statutory provisions, orders 
or regulations. Such release will also bar 
recovery of any damages suffered at any time 
after the date of entry of this Decree by 
reason of containued effects of any such dis­
criminatory acts which occurred on or before 
the date of entry of this Decree.

Appendix, 60a. The meaning and scope of this paragraph
is discussed in the District Court's opinions of May 20, June
7, and July 17, 1974.

The defendants construe this paragraph to provide that 
employees will be required to waive two types of rights.
First, minority employees will be required to waive certain 
prospective rights t

1. The rxght to sue for additional injunctive relief 
if the Consent Decrees do not eliminate the con­
tinuing effects of past discrimination.

2. The right to sue to enforce the Consent Decrees 
if the defendants fail to comply with their 
provisions •

3. The right to sue for back pay or damages which
may arise in the future by reason of the defendants' 
failure to eliminate the continuing effects of 
past discrimination.

Second, minority employees will be required to waive certain 

accrued rights;
1. The right to sue for back pay or damages which arose 

prior to execution of the waiver by reason of 
systemic discrimination by the defendants »

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2. The right to sue for back pay or damages which
arose prior to execution of the waiver by reason 
of non-systemic dsicrimination by the defendants.

The precise meaning of paragraph 18(g) is not clear on
the face of the record. The opinions of the District Court
describes the proposed waivers as though they involved only
releases of accrued back pay claims. In its opinions of May
20, 1974, the Court stated:

The question of the binding effect of a release 
for back pay is one that all the parties have 
an interest in and which needs resolution. . . .
It is my conclusion after a study of the matters, 
that there can be an effective waiver or settle­
ment in a back pay situation.

Appendix, 157a- 158a. - (Emphasis added). The Memorandum
Opinion of June 7 held similarly:

This Court concludes that there can be a legal 
waiver of back-pay claims where, for valuable 
consideration, or release is signed knowingly 
and voluntarily, with adequate notice which 
gives the employee full possession of the 
facts.

Appendix, 192a (Emphasis added). Similarly, the Memorandum
Opinion of July 17, 1974, states:

Assuming, arguendo, that the proposed back-pay 
releases should be declared invalid by the Fifth 
Circuit, there is no suggestion that all 
minority steelworkers will sign such releases 
or that there may be a lack of class repre­
sentatives to pursue pending of future liti­
gation. Additionally, while some class mem­
bers may choose to exectuve a back—pay release 
in exchange for a tender of immediate back-pay, 
such would not prevent continued litigation by 
the existing class representatives. . . .Indeed,
it appears that a decision by the Fifth Circuit 
which would invalidate the release procedure

7



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after payments had been made would adversely
affect only the defendants herein, as they
would have paid for something less than that
which was expected in return —  a valid release
of back pay claims. Appendix, 206a-207a (emphasis added)

At the May 20 hearing the District Court indicated grave
reservations regarding any purported waiver of future effects
of past discrimination,

I believe the Supreme Court has indicated that 
there can be no effective waiver of damages 
for future violations. Now we get into a very 
tricky area as to whether or not, if you 
attempt to make a waiver that says that the 
present remedies adequately remedy con­
tinuing effect of past discrimination, whether 
that is a waiver of future violations or not,

Transcript of Hearing of May 20, 1974, p. 51.
The government, unlike the defendants, maintained in the Dis-
, • , _  , , n  „  n    . _  _ ,  n  A  ^  4 -  ✓•'.w - P / ' A  v *  r t n *  + - > »  H o o r p o c•crxct L U U i  C ,  Ciicx C ciix e i a j - ' x u y c c ;  ~ ~

even if he signed a waiver
If any individual believes that he is not 
receiving all the relief available to him 
under the decrees, he may sue to obtain 
the relief.

Plaintiffs' Memorandum, p. 25. On July 23, 1974, intervenors 
moved in the District Court for an order clarifying the meaning 
of paragraph 18(g) and the proposed waivers. Appendix,
210a-212a. The District Court declined to rule on the motion 
at that time, postponing consideration of the issue until a 
later date when the parties submitted the text of the proposed 
waiver itself. Transcript of Hearing of July 23, 1974, p. 22.

The practical impact of the waivers depends in large 
measure on the type of discrimination which exists in plants

8



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involved. A1though the Complaint filed by the United States 
alleges a variety of forms of discrimination, see Appendix,
6a-14a, the most important problem is that present seniority 
rules have the effect of preserving and perpetuating the effects 
of past discrimination. In years past, particularly before 
1968, minority and white workers were hired into separate 
lines of progression ("LOP") or departments. The jobs available to 
non-white workers were generally the most poorly paid, un­
pleasant, and dangerous. While this hiring practice has abated 
to some extent, minority employees are locked into their jobs 
by established seniority rules. These rules provide that, when 
a vacancy occurs in a desirable job in a white LOP or department it 
is given to the qualified applicant with the longest seniority in 
that LOP or department. A qualified black applicant outside the 
department cannot win the promotion unless all of the whites in 
the department first turn it down. A similar rule applies to 
layoffs and reinstatement. See generally United States_y.
Bethlehem Steel Corp., 446 F.2d 652 (2d. Cir. 1971); Bush, v _̂
Lone Star Steel Corp., 373 F.Supp. 526 (E.D. Tex. 1974); United 
States v. United States Steel Cong. , 371 F.Supp. 1045 (N.D. Ala.
1973); in the matter of the Bethlehem Steel Corporation, Decision 
of the Secretary of Labor, Docket No. 102-68, January 15, 1973. 
These seniority rules, which perpetuate and preserve past dis­
criminatory hiring and assignment practices, lock minority 
workers into ill paid undesirable jobs for the rest of their lives.

9





The government's complaint in this action specifically charges 
the defendants with failing to take steps necessary to ter­
minate the continuing effects of this earlier discriminatory 
hiring and assignment. Complaint, 1116(6), 17, Appendix,

10a-12a. Many of the provisions of the Consent Decrees 
deal with changes in the seniority system necessary to end
once and for all the continuing effects of that earlier dis­
crimination. Consent Decree I, M 4 ,  5, 6, 7, 8, 9, Appendix,

33a-43a.
The Consent Decrees alter the seniority and other rules of 

the defendants in an effort to enable minority employees to 
reach their "rightful place", the jobs which they would have had but 
fcr past discr■>mination. See Local 189 v. United States, 416 
F.2d 980 (5th Cir. 1969). Whether or not the Decrees wxll succeed i: 
enabling minority workers to reach their "rightful place is not 
known, and will not be kiown for years. A variety of limitations m  

the Decrees may render the affirmative relief in the Decrees in 
effective. The Decrees provide for three step bidding:(1) when a . 
vacancy occurs in a white LOP it will first be offered to the em­
ployee in the job immediately below the position in which the vacanc 
exists; (2) only when aLl the LOP employees have had an opporunity to 
advance will the employees within the department have an opportunity 
to bid on the vacancy in the LOP; (3) and finally, after all the 
departmental employees have had an opportunity to advance into 
the LOP, then the departmental vacancy will be posted for plant 
wide bidding. The Consent Decrees do not establish any job

10



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skipping or merging of departments or LOPs, nor do they alter the 
rigid contractual definition of vacancy in order to increase the
opportunity for Blacks or women to move into their "rightful place", 
require plant-wide bidding, or posting for, at least, all entry-

3/
level LOP jobs, provide any other affirmative relief geared to
terminate as quickly as possible, consistent with the demands: of

4/ . . . ."business necessity", the widespread effects of discrimination m
the steel industry, or change or abolish -any existing employment

5/test.

1/

2

Since the jobs available in this third step of bidding will 
generally be low paid entry level jobs, the Decrees provide that if 
an employee from another department takes such a job he or she will 
continue to be paid at the rate for his or her former job for up to 
two years. Appendix, 40a~42a. Whether this two year period will

-T _ . _ 3______________T --------4 -  •,p r o v e  X U I 1 Q  tiXlvjuyU u t a h C  *-J ifcrc f'incir ci-c, ]_ iy fc ■J T

minority employees cannot be foreseen with certainty.

1/ See Pettway v. American Cast Iron Pipe Company, 494 F.2d 211, 
248 (5th Cir. 1974); Long v. Georgia Kraft Co., 450 F.2d 557, 562 
(5th Cir. 1971); United States v. Local 189, 301 F.Supp. 906 (E.D. 
La. 1969 (5 th Cir;-h9£»H <EL̂ — —
2/ United States v. United States Steel Corporation,
1045, 1056-57 (N.D. Ala. 1973); Bush v. Lone Star Steel_
373 F.Supp. 526, 534 (E.D. Tex. 1974); United States v._ 
Terminal Company, 451 F.2d 418, 451 cert.denied 406 U.S. 
United States v. Hayes International, 456 F.2d 112, 118- 
1972); United States v. Chesapeake & Ohio Railroad Co., 
582, 589 (4th Cir. 1972) cert.denied 411 U.S. 939 (1973)
3/ Pettway v. American Cast Iron Pipe Company, supra
4/ Rather, the utilization, if it is to occur at all,
forms of affirmative relief,which courts have regularly 
is left almost entirely to the Implementation committees 
individual plant. The members of these committees are a 
the discriminator - the Companies and the Union.

371 F.Supp. 
Corporation,
Jacksonville
906 (1972); 

19 (5th Cir 
471 F .2d

at 248.
of these 
instituted, 
in each 

ppoonted by

5/ The use of discriminatory employment tests is a common vio­
lation of Title VII, criaas v. Duke Power company, 401 U.S. 424 
(1971); United States v. Georgia Power Company, 474 F.2d 907 (5th 
Cir. 1973); Pettway v. American Cast Iron Pipe Company;, supra.

11





The fact that the government has consented to these 
Decrees does not insure that minority employees will reach their 
rightful place as soon as possible, within a reasonable period 
of time, or ever. The United States is no less fallible, and 
no more prescient, than any other litigant. On two previous 
occasions the government has won or negotiated decrees in the 
steel industry. United States v. Bethlehem Steel Corr>.. 446 
F.2d 652 (2d Cir. 1971)7 In the Matter of Bethlehem Steel 
Corporation, supra. In both those plants minority employees, 
dissatisfied with the deficiencies in the relief won by the 
government, chose to pursue private litigation for additional 
relief. Williamson v. Bethlehem Steel Corp., 468 F.2d 1201 (2d 
Cir. 1972), cert.denied 411 U.S. 973 (1973); Lane v. Bethlehem 
Steel Corp., No.. 71-580-H, D. Md. On repeated occasions in other 
areas the judgment of the United States as to what constitutes 
adequate relief in civil rights litigation has been overturned
by the courts. See e.g., Davis v. Board of School Commissioners
of Mobile, 402 U.S. 33 (1971); Alexander v. Holmes County Board of
Education. 396 U.S. 19 (1969); Adams v■_Richardson, 480 F.2d 1159
(D.C. Cir. 1973); Legal Aid Society v. Brennan, 8 EPD K9483 (N.D. 
Cal, 1974); United States v. Ironworkers, 5 EDP ?[7973 (W.D. Wash. 
1972); Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 221 
n.21 (5th Cir. 1974); Robinson v. Lorillard Corp., 444 F.2d
791, 800-01 (4th Cir. 1971).

The parties have claimed that any waivers executed by
minority steelworkers will be knowing and voluntary. This

12



.

* , « * . -v d ' i - ■ g -

. ~ ■■■■■■■■■■, .'O:.--.- , ’ - • ' - j  ^  K !C -AJ



assertion is at odds with the reality of the situation. The 
waivers are classic contracts of adhesion, a standardized agree­
ment imposed on the employees on a take it or leave it basis. 
Individual steelworkers have no significant bargaining power as 
against the. multi-billion dollar employers; such disputes have 
properly been characterized by this Court as a "modern day David 
and Goliath" confrontation. See Sanchez v. Standard Brands, 431 
F .2d 455 (5th Cir. 1970). Most minority steelworkers, already 
underpaid because of their race and faced with spiraling in­
flation and fears of layoffs, will likely need so badly the back­
pay tendered that they will have no choice but to execute any 
waiver involved, no matter how unfair its terms. No steelworkers 
will have the free choice afforded minority employees in 
virtually all government suits since 1965, to take the full relief 
offered under that action and to sue for additional relief if 
necessary.

Nor will minority employees be able to intelligently 
evaluate the Hobson's choice presented to them. Even to an 
experienced attorney, the ramifications of the two lengthy 
Consent Decrees are difficult to understand. No one, not even 
the parties, can forsee whether the Decrees will prove effective 
in disestablishing the previously predominantly white and Black 
jobs at the defendants' plants. Many of the critical decisions 
bearing on the effectiveness of the Decrees such as whether 
to revise seniority units and pools, whether to establish two- 
step bidding, whether to alter temporary vacancy practices, and

13



-



whether to amend the transfer procedures generally —  will not
be made until after minority employees are required to sign the 
waivers. Appendix, 53a. Although every minority 
employee will need to know how much back pay he might win if he 
rejected the waiver and chose to litigate, the companies have 
objected that such calculation for all the minority employees 
involved is impracticable. Transcript of Hearing of May 20,
1974, p. 173. The parties have already opposed one effort to 
notify minority employees of the pendency of any private liti­
gation affecting them or of the identity of the civil rights 
lawyer involved, Transcript of Hearing July 23, 1974, passim, and in 
one pending action the company and union have opposed any discover; 
to obtain information needed to advise employees whether to
execute the waivers. Rodgers v. United States Steel, No. 71-793 
(W.D. Pa.)

In the District Court the government candidly recognized 
that in many instances minority employees will be unable to 
determine whether the Decrees will enable them to obtain the jobs 
to which they are entitled. Regarding employees who had filed
complaints with the E.E.O.C., the government stated:

If a practice is covered by a decree but 
the precise form of relief under the decree has 
yet to be determined, the EEOC will not ask the 
charging party to make his choice until such time 
as relief has been finalized. . . For instance, a
black who charges that he has been "locked into a paying line of progression may seek to have
his line merged with the higher paying line.
If the parties have not yet passed on that 
specific proposed merger at the time that the 
investigation is otherwise completed, the EEOC 
will not ask him to make a decision on the waiver.

low

14





Reply Memorandum of Plaintiffs, p. 8. This allowance for 
additional time applies only to employees who have filed com­
plaints with the Commission; the vast majority of the minority 
employees who have not filed such complaints must decide 
whether to sign the waiver before they do or could know whether 
the Decrees will solve their particular problems.

Even if these waivers could be signed by minority workers 
under circumstances rendering them knowing and voluntary, that 
would not be sufficient to assure their validity. A waiver, 
like any contract, must be invalidated despite the consent of 
the parties if it contravenes public policy. As the Supreme 
Court pointed out in Brooklyn.Savings Bank v. O'Neil, 324 U.S.

It has been held in this and other courts 
that a statutory right conferred on a private 
party, but affecting the public interest, may 
not be waived or released if such waiver or 
release contravenes the statutory policy. 
Mid-State Horticultural CQ. v. Pennsylvania R.
Co., 320 U.S. 356, 361; A. J. Phillips Cp_._y.. 
Grant Truck Western R. Co., 236 U.S. 662, 667,
Cf. Young v. Higbee Co., 324 U.S. 204, ante,
890. Where a private right is granted in the^ 
public interest to effectuate legislative policy, 
waivers of a right so charged or colored with 
the public interest will not be allowed where 
it would thwart the legislative policy it was 
designed to effectuate.

324 U.S. 704-7060
The Federal courts have invalidated a wide variety of 

"knowing and voluntary" waivers on the ground that they con­
travened public policy. In J. I. Case v. N.L.R.B., 321 U.S. 
332, 337-338 (1940), the Supreme Court held unlawful and

15



'



ineffective any waiver signed by individual employees of benefits 
to which the employee would be entitled under a union contract, 
concluding that such waivers would undermine the responsibility 
and bargaining power of the unions established by the National 
Labor Relations Act, 29 U.S.C. §157 et se^. Pittsburgh, etc.
R.R. Co. v. Fink, 250 U.S. 577 (1919) held that a shipper could 
not waive the provisions of the Interstate Commerce Act requiring 
railroads to charge equal rates to all shippers. In Martino 
v. Michigan Window Cleaning Co., 327 U.S. 173, 177 (1945), the 
Supreme Court held invalid private agreements not to seek over­
time payments for work for which such payments were required by 
the Fair Labor Standards Act. See also Wirtz v. William H.D. 
LaDewof Louisisna, Inc., 282 F.Supp. 742 (E.D. La. 1968); Wirtz 
v. Turner, 330 F.2d 11, 14 (7th Cir. 1964); Bingham v. Airport 
Limousine Service, 314 F.Supp. 565 (W.D. Ark. 1970); Durkin v. 
Waldron, 130 F.Supp. 501 (W.D. La. 1955); Mayheu's Super Liquor 
Stores v. Hodgson, 464 F.2d 1196, 1197 (5th Cir. 1972).

In International Brotherhood of Boilermakers, etc., v 
Rafferty. 348 F.2d 307, 314 l V % ., ^*th Cir. 1965) this Court held that 
union members could not waive their rights to the protections 
of the Landrum-Griffin Act. The Supreme Court has invalidated 
a variety of waivers aimed at exempting a carrier from liability 
under the Federal Employers Liability Act. See e.g., Philadelphia., 
etc. R.R. co. v. Schubert. 224 U.S. 603 (1912)(waiver of right 
to sue in return for membership in employer Relief Fund). Duncan 
v. Thompson. 313 U.S. 1 (1942)(waiver of right to sue unless

16



'

:■ - ' ■ A'- ■■■' ' ---



advance from employer repaid); Bovd v. Grand Truck Western
R. Co., 338 U.S. 263 (1949)(waiver of right to sue in state 
court in return for money paid after injury). In Buford v. 
American Finance Company, 333 F.Supp. 1243, 1248-9 (N.D. Ga. 1971) 
the court declared null and void releases executed by a con­
sumer in return for a partial cash settlement waiving her right 
to full recovery under the Truth in Lending Act.

The courts have repeatedly invalidated waivers which pur­
ported to limit the rights or remedies under Title VII. In 
Alexander v. Gardner-Denver Company, 39 L.Ed.2d 147 (1974), 
the minority employee;claiming that he had been fired because 
of his race, voluntarily submitted his claim for arbitration 
under the collective bargaining agreement in force at his plant. 
The agreement provided that, where arbitration was sought, the 
decision of the arbitrator would be binding on the employee.
After the arbitrator ruled against him, the employee filed a 
complaint with the E.E.O.C. and thereafter brought suit in 
federal court. The Supreme Court held invalid any agreement by 
an employee establishing arbitration, rather than the federal 
courts, as the forum in which his claims would be finally adju­
dicated. 39 L .Ed.2d at 147. In Chastang v, Flynn and Emrich 
Company, 365 F.Supp. 957 (D. Md. 1973) the plaintiff employees 
had on several occasions executed releases waiving any right 
to sue arising in connection with their employment. The District 
Court held the releases invalid

17





F & E argues that the re-execution of the 
documents after the effective date of 
Title VII prevents plaintiffs from relying 
upon Title VII to sue the company since they 
were aware of the Act at the time they re- 
executed the releases. The simple answer to 
this is that the parties cannot agree to per­
form an illegal act. United Mine Workers v. 
Pennington, 381 U.S. 657. . . (1965); United
Brotherhood of Carpenters and Joiners of 
America v. United States, 330 U.S. 395,
(1947) A statutory right conferred upon a 
private party, but affecting the public 
interest may not be waived or released, if 
such waiver or release contravenes public 
policy. Brooklyn Savings Bank v. O'Neil,
324 U.S. 697, 704 ... (1945).

365 F.Supp. at 968. In Rosen v. Public Service Electrical and 
Has uomoanv- 328 F.Supp. 454 (D.N.J. 1970), the employer argued 
that any discrimination in its pension plans had been waived 
when the employees, through their union,agreed to that plan 
through collective bargaining. The court held that any such 

• contractual agreement to the plan was unenforceable. 328 F.Supp. 
at 464. The Fourth Circuit rejected a similar argument in 
Robinson v. Lorillard Corporation, 444 F.2d 791, 799 (4th Cir.
1971): "The rights assured by Title VII are not rights which
can be bargained away —  either by union, by an employer, or by 
both acting in concert". In Moss v. Lane Company, 50 F .R.D.
122 (W.D. Va. 1970), the plaintiff sued on behalf of himself and 
his fellow minority employees. The employer thereafter served 
affidavits from all other minority employees disclaiming any 
authority from them to commence the suit. The court refused to 
dismiss the class action aspect of the case despite these waivers

18



'



By such dismissal, I would be saying that 
either there is no racial discrimination 
practiced by the defendant against the other 
members of the class or that the other Negro 
employees want to be racially discriminated 
against. Clearly the latter is unacceptable, 
and, certainly, the former would be an improper 
determination at this stage of the suit.

50 F.R.D. at 126.
Intervenors maintain that the proposed waivers contravene 

public policy and are thus invalid because (1) the waivers are 
prospective in nature and deprive employees of any remedy if 
the defendants continue to fail to remedy the effects of past 
discrimination, (2) the waivers require employees to waive 
their rights to maintain private litigation as a conditxon of 
receiving certain benefits under government litigation, and (3) 
the waivers preclude employees from obtaining full monetary 
compensation for past discrimination.

1. Prospective Waivers
The critical problem in the steel industry is the failure 

of the companies and the union to take steps to remedy the 
effects of past discrimination by disestablishing previously 
black and white jobs, lines of progression and departments, and 
permitting minority employees to reach their rightful place as 
quickly as possible. Every day the defendants fail to take such 
action they are in violation of the law. See Local 189 
United States, 416 F.2d 980 (5th Cir. 1969). At issue in this 
case is whether the defendants can continue thus violating the 
law and the rights of minority employees. Until these effects

19



)



of past discriminatory assignments are terminated, black employees 
will continue to earn less than whites solely on account of their 
race.

Thus continuing effects of past discrimination are the 
primary cause of discriminatory treatment of black employees and 
preferred treatment for whites in the steel industry. The pro­
posed waivers are carefully tailored to strip minority employees 
of any right to seek any necessary additional remedies for such 
discrimination. Employees who sign the waivers do not, for 
example, waive their rights if there are new acts of discrimina­
tion; but for the last six years it has been the continuing effects 
of past discrimination, not new acts, which have caused the 
majority of violations of the rights of black employees.

This litigation is not about what remedies minority 
employees will have if the Decrees succeed, for if they succeed 
no remedies would be invoked or necessary. The issue presented 
by this appeal is what remedy minority employees will have if 
the Decrees fail. The parties insist at length that they believe 
the Decrees will succeed in promptly remedying the effects of 
past discrimination. But the defendants will not need releases 
if the Decrees work; they seek and need those waivers solely 
to preclude additional relief if the Decrees prove inade­
quate. It is only to the extent that the Decrees fail that 
the waivers will have any practical impact and that impact 
will be to lock a whole generation of black steelworkers into 
the poorly paid jobs and departments to which they were

20



: ■ . by”:

■



initially assigned on the basis of race. A waiver with such an 
effect is clearly void as contrary to public policy.

Such a release is not a compromise of accrued claims, it is 
a license to break the law. No court in the land would uphold 
releases signed by the parents of school age children purporting 
to waive their right "to eliminate from the public schools all 
vestiges of state imposed segregation." Swann v. Charlotte- 
Mecklenburg Board of Education, 402 U.S. 1, 15 (1971). See also
"' 1 ' j

Griffin v. County School Board, 377 U.S. 218, 232-234 (1964) ;
Green v. County School Board, 391 U.S. 430, '438, n.4 (1968). Nor 
would this Court enforce a release signed by a citizen denied the 
right to vote which purported to waive the right to judicial 
relief which would "so far as possible eliminate the discrimi­
natory effects of the past as well as well as bar like dis­
crimination in the future." Louisiana v. United States, 380 
U.S. 145, 154 (1965). The proposed waiver in the instant case 
is no different.

The question of whether a prospective waiver of Title 
VII rights is lawful and binding was decided five months ago 
by the United States Supreme Court in Alexander v.— Garoner- 
Denver Company, 39 L.Ed.2d 147 (1974). In that case the aggrieved 
employee, prior to commencing a Title VII action, instituted 
arbitration which would be "final and binding upon the Company, 
the Union, and any employee or employees." 39 L.Ed.2d at 154.

21



1

.

5-^- ? .... ■ ■ - • -™ ■
'



The arbitrator found there was no racial discrimination, and
the employer argued that the employee, by submitting his claim
to binding aribtration, had waived his rights to sue under
Title VII. The Court held:

We are unable to accept the proposition that 
petitioner waived his cause of action under 
Title VII. To begin with, we think it clear 
that there can be no prospective waiver of an 
employee's rights under Title VII. . . .
Title VII's strictures are absolute and re­
present a Congressional command that each 
employee be free from discriminatory practices.
. . . In these circumstances, an employee's
rights under Title VII are not susceptible to 
prospective waiver.

39 L.Ed.2d at 160. The prospective aspects of the waiver in the 
instant case are, like the waiver in Alexander, clearly unlawful.

The waiver in Alexander was prospective in the sense that, 
although the act of discrimination occurred before the purported 
waiver, the employee committed himself in advance to obtaining 
only so much relief as the arbitrator would thereafter award.
The dismissed employee in Alexander had no better idea whether the 
arbitrator would give him his job back than the employees in this 
case know whether the Decrees will succeed in getting them to 
their rightful place as soon as possible. Moreover, the court 
in Alexander noted that, even had the arbitrator awarded partial 
relief, the waiver could not deprive the employee of the right 
to sue for additional relief. See 39 L.Ed.22 at 159-169, n.14.

2 Interference With Independent Remedj-_e_s
In enacting the Civil Rights Act of 1964 Congress xndicated 

that it considered the policy against discrimination in employment

22



-

■'



to be of the "highest priority". Johnson v. Georgia Highway 
Express, 498 F.2d 714 (5th Cir. 1974); see, Newman v. Piggie 
Park Enterprises, 390 U.S. 40.0, 402 (1968). In this case 
legislative enactments "have long evinced a general intent to 
accord parallel or overlapping remedies against discrimination." 
Alexander v. Gardner-Denver Company, 39 L.Ed.2d 147, 158 (1964) . 
Among the multiplicity of independent remedies established by 
law are (1) private, litigation under Title VII, 42 U.S.C.
§2000e-5 (f); (2) investigation by the EEOC, followed by con­
ciliation efforts if the agency finds there is probable cause 
to conclude there is discrimination, 42 U.S.C. §2000e-5 (b); (3)
"pattern or practice" suits by the United States, originally 
prosecuted by the Department of Justice and now handled by the 
EEOC; (4) enforcement of Executive Order 11246 and 42 C.F.R. 
Chapter 60 by the Office of Federal Contract Compliance and the 
Secretary of Labor. In enacting Title VII in 1964 Congress 
expressly rejected an amendment which would have made Title VII 
the exclusive federal remedy for most employment discrimination. 
110 Cong. Rec. 13650-52 (1964) Senator Clark, one of the
sponsors of the 1964 Act, stressed that Title VII is not in­
tended to and does not deny to any individual rights and remedies 
which he may pursue under other federal and state statutes 
110 Cong. Rec. 7207 (1964).

Despite this clear legislative history, employers urged 
repeatedly but unsuccessfully in the years after the enactment 
of Title VII that the consideration of a charge of discrimination

23





in one forum precluded consideration of the same charges in another 
In United States v. Operating Engineers, Local 3, 4 EPD ^[7944 
(N.D. Cal. 1972), the employer argued that where the United 
States had brought a pattern or practice suit and entered into
a consent decree, private litigants could not sue for additional
relief. The Court rejected that position:

This Court does not believe that the 
Government can conclusively bind private 
plaintiffs pursuing parallel actions, sim­
ply by joining in a consent decree. There 
is no statute which precludes private suits 
from proceeding —  even as class actions 
simultaneously with pattern or practice suits 
brought by the United States pursuant to 42 
U.S.C. §2000e-6. . . .  It is the Government's 
position that private and public suits under 
Title VII are separate and independent 
entities, because the United States is
protecting genera.!. rr.ic inter^ts in its
suit as well as the rights_of_minority group 
members, while private plaintiffs are re­
presenting the minority group members' 
interests only. . . .  Title VII actions will 
be discouraged if class action rights are 
cut off abruptly by a Government settlement. 
This possibility is especially strong in 
cases like the present one, where private suits 
were filed prior to the Governments action.
If this Court gives substantial weight to the 
consent decree in the instant case, future 
Title VII private plaintiffs will become wary 
of acting until they are certain the United 
States will not be joining in the suit or is 
not interested in settlement.

4 EPD, pp. 6504-05. In Williamson v . Bethlehem Steel Core 
oration, supra, the employer and union argued that an employee 
could not maintain a private action because the United States 
had already litigated to judgment a pattern and practice action

24



t



involving the same alleged discrimination. The Second Circuit
rejected that contention:

For purposes of res judicata or collateral 
estoppel, the private citizens in this case 
are not bound by the Attorney General's 
action in the former case since they neither 
were parties to it. . . nor have interests such 
as to be in privity with the Attorney General.
. . . Under Title VII since its inception,
moreover, the individual has played a signifi­
cant role in its enforcement. Jenkins v. United 
Gas Corp., 400 F.2d 28, 32 (5th Cir. 1968) . . .
While the 1972 amendments authorize the Equal 
Employment Opportunity Commission to bring a 
Title VII suit in the name of the Government,
. . . individuals not party to the Commission
proceedings may institute a suit despite any 
legal action taken by the Commission or the 
Attorney General.

The purpose of permitting the individual 
who has been discriminated against to seek 
relief where the Government has omitted to do so —  
possibly for reasons such as its lack of know­
ledge, legal strategy, or lack of enforcement 
staff —  is plainly to make certain that the 
individual employee is protected.

488 F .2d at 1203-04. See also Leisner v. New York Telephone
Company, 358 F.Supp. 359 (S.D.N.Y. 1973).

The federal courts have rejected a variety of other 
attempts to curtail the independence of these overlapping 
remedies. In Boles v. Union Camp Corp., 5 EPD 58051 (S.D. Ga.
1972), the company unsuccessfully contended that it was not 
subject to suit under Title VII because its seniority practices 
had been developed under the supervision and with the approval 
of the Office of Federal Contract Compliance.

25



■■ -V' ^  •■■'-•

'



Contending that private settlements, 
such as its Affirmative Action Program, are 
favored by the law and should be encouraged 
by the courts, Union Camp argues that active 
supervision by Compliance officers removes any 
necessity for judicial overseeship since 
every claim of racial discrimination an injunc­
tion could cover has been eliminated under the 
Program....

An affirmative action program entered into 
by a Title VII defendant-employer and approved 
by the Office of Federal Contract Compliance 
pursuant to Executive Order 11246 is not a con- 
slusive-defense•to an action filed under that 
Title by private plaintiffs.

5 EPD at p. 6838. This Court rejected a similar defense of 
O.F.C.C. approval in Pettway v. American Cast Iron Pipe Company, 
494 F .2d 211, 221, n.21 (5th Cir. 1974). In E.E.O.C. v. Eagle 
Iron Works, 367 F.Supp. 817, (S.D. Iowa 1973), the court held
that the Commission could maintain a
which had already been the subject of an unsuccessful private 
Title VII action. 367 F.Supp. at 821. Three circuits have re­
jected the contention that adjudication of a charge of dis­
crimination under the national labor laws precludes litigation 
regarding the same alleged discrimination under Title VII.
Taylor v. Armco Steel Corporation, 429 F.2d 498 (5th Cir. 1970); 
Tiper v. E.I. du Pont Co., 432 F.2d 125 (6th Cir. 1971); Norman 
v. Missouri Pacific Railroad, 414 F.2d 73 (8th Cir. 1969).
The Supreme Court has repeatedly rejected the argument that a 
finding by the EEOC of no probable cause precludes an employee 
from litigating the merits of the same charge i n  federal court. 
McDonald Douglas Corp. v. Green, 411 U.S. 792, 798 (1973);

26





Alexander v. Gardner-Denver Company, 39 L.Ed.2d 147, 157 (1954);
see also, Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir. 
1971); Beverly v. Lone Star Lead Const. Corp., 437 F .2d 1136 
(5th Cir. 1971) . As the Supreme Court indicated in Alexander, 
the general rule in employment discrimination litigation is that 
"submission of a claim to one forum does not preclude a later 
submission to another," 39 L.Ed.2d at 158.

Within the last several years Congress has rejected 
repeated efforts to limit this structure of independent reme­
dies. It was proposed, on the one hand, to make government 
lawsuits the exclusive remedy for employment discrimination.
That proposal was rejected at the urging of the then Chairman 
of the E.E.O.C. :

Access to the judiciary in seeking redress of 
grievances should not be reduced to a parens 
patriae type of right, assertable only by a 
government official acting on behalf of an 
aggrieved person's behalf. Every man deserves 
the right to seek his day in court, whether an 
administrative agency thinks his cause is just 
or not. The section 706 private action has 
been an important source of Title VII law, and 
well illustrates the value of continual re­
plenishment of the legal framework from extra- 
governmental sources.6/

On the other hand, a second proposal would have made private 
Title VII actions the exclusive remedy. Senator Williams, speak­
ing in opposition to this proposed restriction, urged.

6 / Hearings before a Subcommittee of the House Committee 
^  Education and Labor, 91st Cong., 2d Sess., pp. 36 37 
(1969-70); Hearings before a Subcommittee of 
Committee on Labor and Public Welfare, 92nd Cong. 1st Sess.,
p. 63 (1971).

27





I believe that to make Title VII the ex­
clusive remedy for employment discrimination 
would be inconsistent with our entire legis­
lative history of the Civil Rights Act.

To lock the aggrieved person into the 
administrative remedy would narrow rather than 
strengthen our civil rights enforcement efforts.
. . . [W]here one form of relief proves un­
responsive or impractical, or where the claim­
ant has a particular preference to bring his 
claim in a forum other than that which is most 
commonly used for claims of this kind, he 
should have that right.

The peculiarly damaging nature of employment 
discrimination is such that the individual who 
is frequently forced to face a large and power­
ful employer, should be accorded every protec­
tion that the law has in its perview, and that 
the person should not be forced to seek his 
remedy in one place.

Legialative History of the Equal Employment Opportunity Act of 
1972, p. 1404.

Although Congress clearly intended to afford minority 
employees relief in both private and government litigation, the 
intent and effect of the proposed waiver is to force each employee 
afforded back pay to choose between those remedies. If an 
employee wants back pay relief under the government action, he 
must relinquish his statutory right to bring a private action.
If an employee wants to reserve the right to pursue private 
litigation, he must relinquish his right to back pay relief 
under the government action. The result is essentially that 
rejected by Congress in 1970-1972, to make either government 
litigation or private litigation the exclusive remedy available.
In Hutchings v. United States Industries,— Inc., 428 F.2d 303

28



■

•• " -no i q



(5th Cir. 1970), the employer argued that an aggrieved em­
ployee was or could be required to chose between his remedy 
under Title VII and his union grievance procedure. This Court 
rejected that argument:

If the doctrine of election of remedies is 
applicable to all Title VII cases, it applies 
only to the extent that the plaintiff is not 
entitled to duplicate relief in the private 
and "public forums which would result in an 
unjust enrichment or windfall to him.

428 F.2d at 314. In Alexander v. Gardner-Denver. the Supreme
Court noted that the doctrine of election of remedies was
inapplicable to suits under Title VII, since it "refers to
situations where an individual pursues remedies that are
legally or factually inconsistent". At least 5 other circuits
have refused to apply the doctrine of election of remedies to
Title VII actions. See Bowe v. Colgate-Palmolive Co., 416
F.2d 711, 714-175 (7th Cir. 1969); Macklin v, Spencer Freight
Systems, Inc.., 478 F.2d 979, 990-991 (D.C.Cir. 1973); Voutsis
v. Union Carbide Corp., 452 F.2d 889, 893-894 (2d Cir. 1971),
cert, denied 406 U.S. 918; Newman v. Avco Corp., 451 F.2d 743,
746, n.l (6th Cir. 1971); Qubichon v. North American Rockwell
Corp., 482 F.2d 569, 572-573 (9th Cir. 1973).

If the award of relief in a government action can be con­
ditioned on a waiver of other statutory remedies, the Con­
gressional decision to establish independent remedies could and 
would be easily nullified. Whenever relief, however limited, was 
awarded in one forum, it could be conditioned on a waiver of the

29



.

.



right to proceed in all other forums. It is of no significance
that in such a case, as here, the employee might be free to
choose whichever remedy he preferred, for the policy of Congress
was precisely that an employee not be required to make such a
choice. See p. 23, supra. The contrary rule would readily
enable employers and unions, through a minimum of additional
paperwork, to overrule the decisions in United States v .
Operating Engineers, Local 3, 4 EPD 51 7944 (N.D. Cal. 1972) and
Williams v. Bethlehem Steel Corporation, 468 F .2d 1201 (2d Cir.
1972), cert, denied, 411 U.S. 911 (1973). It is not coincidental
that the discussions between the United Steelworkers and the
defendant companies which led to these Consent Decrees and the
waiver provisions began in the spring of 1973, about the same
time that the Supreme Court denied the petitions for certiorari
filed in Williamson by the United Steelworkers and Bethlehem

6a/
Steel, both defendants herein. The public policy of the United 
States, as enacted by Congress and established by the federal 
courts, is that minority employees are entitled to pursue con­
secutively and cumulatively a variety of independent remedies.
It is this "knowing and voluntary" decision by the Congress, 
not any "knowing and voluntary" decisions by minority employees, 
that establishes the remedies available to enforce Title VII.
The executive branch has no authority to legislate through con­
sent decrees any different policy, and any waiver provision requir­
ing employees to choose among these remedies is null and void.

6a/ The Union has indicated that those discussions began "shortly 
after" May 2, 1973. Brief for Union Defendants-Appellees,
Ford v. United States Steel Corporation, No. 73—3907 (5th Cir.), 
p. 14. Certiorari was denied in Williamson on April 16, 1973.

30



’> j- -v,

■



3. Inadequate Back Pay Relief
The Consent Decrees provide that approximately thirty- 

one million dollars will be paid in back pay if all eligible 
minority employees execute the required waivers. There are 
about 60,000 minority and female employees eligible for back 
pay, and the total back pay fund is to be divided among them 
according to a formula set out in paragraph 18(e) of Decree I. 
Appendix, 57a - 59a. Although the total fund is substantial, 
it is an insignificant proportion of the annual profits of the 
nine major steel companies named as defendants. The average 
award per employee, approximately $500, is not great in 
comparison to back pay awarded in litigated cases. See e.g. 
Ford v. United States Steel Corporation, No. 73-3907 (5th Cir.) 
(60 minority employees awarded $200,000, an average of over 
$3,000 per employee). The government does not claim that the 
back pay to be offered will be equal to 100% of the amount to 
which each employee would be entitled if the government, or 
the employee, successfully litigated the back pay claim to 
final judgment. The size of the back pay, like the other 
provisions of the Decrees, is a compromise representing the 
best deal the government could get through negotiations.

Section 706(g) of Title VII authorizes an award of 
back pay to assure that, where an employee is discriminated 
against because of his race, he can obtain compensation equal 
to the difference between his actual salary and the wages he 
would have been paid had he been white. "The back pay award

31



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v



is not punitive in nature, but equitable —  intended to 
restore the recipients to their rightful economic status 
absent the effects of the unlawful discrimination," Robinson 
v. Lorillard Corporation, 444 F.2d 791, 802 (4th Cir. 1971), 
and to "economically elevate the victims to the status which 
is rightfully theirs, Johnson v. Goodyear Tire & Rubber Co., 
491 F.2d 1364 (5th Cir. 1974). The wages' and back pay to be 
awarded to minority employees is a question consigned by 
Congress to the courts, rather than to the usual salary 
negotiations between employee and employer, because of the 
differences in bargaining power when "a single poor, ignorant 
employee with a grievance, not a sling shot in his hand, faces 
a huge industrial employer in this modern day David and 
Goliath confrontation . . . "  Pettway v. American Cast Iron 
Pipe Company, 411 F.2d 998, 1005 (5th Cir. 1969). The Con­
ference Committee which drafted the 1972 amendments to Title 
VII explained, regarding Section 706(g), declared

The provisions of this subsection are 
intended to give the courts wide discre­
tion exercising their equitable powers to 
fashion the most complete relief possible.
In dealing with the present section 706(g) 
the courts hav-e stressed that the scope of 
relief under the section of the Act is in­
tended to make the victims of unlawful dis­
crimination whole, and that the attainment 
of this objective rests not only upon the 
elimination of the particular unlawful 
employment practice complained of, but also 
requires that persons aggrieved by the con­
sequences and effects of the unlawful employ 
ment practice be, so far as possible, restored 
to a position where they would have been were 
it not for the unlawful discrimination.

118 Cong. Rec. 3642 (1972).

32





The proposed back pay award does not raise minority 
employees to the economic level to which they are entitled.
Minority employees, even after receipt of the award, will __^
still have received less net wages for the relevant period 
than they would have had they been born white. The defendants 
may assert in some or even all cases that the back pay award 
equals or exceeds the total amount to which an employee was 
entitled. But the defendants also insist that, in order to 
receive this limited back pay, a minority employee must waive 
his right to litigate any claim that the back pay was 
inadequate.

Intervenors maintain that such a waiver, leaving 
minority employees with a.net salary for the relevant period 
lower than that paid to whites similarly situated, xs con­
trary to public policy and invalid. Where an employee would 
have received $10,000 in wages had he been white, it.is un­
lawful for the employee to receive only $5,000. That is true 
whether the $5,000 is composed of $5,000 in wages or $4,500 xn 
wages and $500 in the form of a back pay 'settlement.

A similar problem arises under the Fair Labor Standards 
Act when an employer who has paid less than the mxnxmum wage 
thereafter pays an employee part of the dxfference between 
the minimum wage and the wage actually paxd xn return for a

U  Back pay under Title VII is limited to the period 
beginning two years before the filing o a c arge ^x 
.E.O.C. See Section 706(g), 42 U.S.C. §2000e (g).

33



■ - . .... .... , . .

. .. ...; . . . '•;/ ; ' : ‘ ' / ' •" - r>/i - I



waiver of the remaining balance. The federal courts have 
uniformly held that such a waiver is invalid, and that an 
employee can sue for the remainder. In Bingham v. Airport 
Limousine Service, 314 F. Supp. 565 (W.D. Ark. 1970), the 
employee executed such a release in return for a payment of 
$500. The court held he could sue for the balance of the 
unpaid minimum wage.

The court agrees that the purposes of the 
Act would be nullified if employers were 
allowed to dimish their liability by 
persuading employees to release their right 
to recover unpaid wages and liquidated 
damages according to the Act in consideration 
of receiving payment of a sum less than that 
provided for by law.

314 F. Supp. at 573. In Baker v. California Shipbuilding
Corporation. 7^ F- Supp. 322 (S.D. Cal. 1947) employees who
had executed a waiver in return for payments equal to two-
thirds of the unpaid wages to which they were entitled were
permitted to sue for the remaining third.

The settlements are not legally binding on 
employees, and under applicable administra­
tive regulations and decisions they may^ 
recover for any unpaid wages plus liquidated 
damages.

73 F. Supp. at 325. In Torres v. American Railroad Company 
of Porto Rico, 157 F.2d 255 (4th Cir. 1946), cert, den. 329 
U.S. 782 ( 1947), the employees executed releases in return 
for somewhat less than half the balance due them. The court 
held that

even the existence of a dispute regarding 
coverage does not validate an agreement 
to accept less than the full statutory 
amount.

157 F.2d at 256.
- 34 -



.

■

W

|s#.- ."<'#^0

•

■ - * -  -

S  K'- ■ y  ' \

■



These decisions follow the decisions of the Supreme
Court in Brooklyn Savings Bank v. O'Neil, 324 U.S. 697 (1945)
and Schulte v. Gangi, 328 U.S. 108 (1946). In 0 'Neil the
employer obtained release of liability under the Fair Labor
Standards Act in return for a payment of $500. The Solicitor
General argued the waivers were invalid:

Although ordinarily the law permits parties 
to compromise their disputes, it is well 
established that a statutory right affecting' 
the public interest may not be waived or 
released if such a release contravenes the 
statutory policy. . . .
These principles unquestionably preclude 
any legal surrender of the amount of the 
minimum wages and overtime compensation 
required to be paid by Sections 6 and 7 of 
the Fair Labor Standards Act. These sections 
make it mandatory that employers pay employees 
the specified minimum wages and overtime com­
pensation. Any contract, whether by way of 
release or otherwise, whereby an employee is 
to receive less than the amounts prescribed 
in these sections is illegal. The decisions 
are substantially uniform to that effect.

Brief for Amicus curiae, No. 554, October Term, 1944.
The Supreme Court agreed:

The legislative history of the Fair Labor 
Standards Act shows an intent on the part 
of Congress to protect certain groups of 
the population from sub—standard wages and 
excessive hours. . • • The statute was a 
recognition of the fact that due to the 
unequal bargaining power as between employer 
and employee, certain segments of the 
population required Federal compulsory legisla-
tion• • • •
The same policy which forbids waiver of the 
statutory minimum as necessary to the free 
flow of commerce requires that reparations 
to restore damage done by such failure to 
pay on time must be made to accomplish Con­
gressional purposes. Moreover, the same

35



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'V-?

-  ’ - ' ^ 1  '  . . . .  * l i  i f t , .  - :  .. ;

.* ‘•I. ■ "« f l  r r  • ■ .c,v-.\, • r  > r . j f e s .  . 0
C' . i • «’ ■ - : . ■* >f ' O

■



policy which forbids employee waiver of 
the minimum statutory rate because of inequality of bargaining power, prohibits 
these same employees from bargaining with 
their employer in determining whether so 
little damage was suffered that waiver of 
liquidated damage is called for.

324 U.S. at 704 - 708. In Schulte the employer argued that
waivers should be upheld where there was a bona fide dispute
as to whether the employer owed employees any back pay. The
court refused to sanction any exception.

In a bona fide adjustment on coverage, 
there are the same threats to the public 
purposes of the Wage-Hour Act that exist 
when the liquidated damages are waived.
We think the purpose of the Act, which we 

' repeat from the O'Neil case was to secure 
for the lowest paid segment of the nation's 
workers a subsistence wage, leads to the 
conclusion that neither wages nor the 
damages for withholding them are capable of 
reduction by compromise of controversies 
over coverage. Such a compromise thwarts 
the public policy of minimum wages, promptly 
paid, embodied in the Wage-Hour Act, by 
reducing the sum selected by Congress as 
proper compensation for withholding wages.

328 U.S. at 115-116.
The Federal courts have invalidated in a variety of 

circumstances waivers executed in return for partial payment 
of sums due under federal law. In Philadelphia,— etc.— Rai.l.PQsd 
Company v. Schubert, 224 U.S. 603 (1912), an employee executed 
a waiver of his rights to sue for injuries under the Employers 
Liability Act of 1908 in return for $79. The court upheld the 
employee's right to sue for additional compensation on the 
ground that the payment and waiver were a device to enable 
the railroad to exempt itself from the provisions of the Act.

36



'



Thomas v. United States, 200 F.2d 686 (1st Cir. 1952) the 
court allowed a suit for restitution of overcharges under the 
Housing and Rent Act of 1947, even though the tenant had inter 
alia, in exchange for payment of about one-third of the over­
charges, executed a general release and an Agreement for 
Judgment and Judgment Satisfied. The court of appeals held 
the release a legal nullity "because of its being contrary 
to legislative policy and the public interest." 200 F.2d at 
689. In Buford v. American Finance Company, 333 F. Supp. 1243 
(N.D. Ga. 1971) the plaintiff consumer had executed a release 
of her right to statutory damages, etc., under the Truth in 
Lending Act in return for $10-. The court, relying on O 'Neil 
invalidated the release.

The Trutn in Lending Act clearly contemplates 
substantial enforcement through individual 
consumers acting as "private attorneys- 
general." . . .  In a similar FLSA case the 
Supreme Court struck down a release of 
liquidated damages because permitting it 
to stand would have nullified the deterrent 
effect Congress plainly intended the civil 
remedy to have on employers. Brooklyn 
Savings Bank v. O'Neil.

333 F. Supp. at 1248
In providing employees with a variety of independent 

remedies Congress contemplated that the employee could 
cumulate remedies obtained in more than one remedial forum 
until full relief had been obtained. See pp. 23-25, 
supra. The Supreme Court noted in Alexander v.— Gardner- 
Denver Company, 39 L.Ed. 2d 147, 159-60 (1974), that if

37





an employee obtained partial relief in an arbitration 

proceeding, he could still sue for additional relief under 

Title VII.
[T]he relationship between the forums is 
complementary since consideration of the 
claim by both forums may promote the poli­
cies underlying each ... Nor can it be 
maintained that election of remedies is 
required by the possibility of unjust 
enrichment through duplicative recoveries.
Where, as here, the employer has prevailed 
at arbitration, there of course can be no 
duplicative recovery. But even in cases 
where the employee has first prevailed, 
judicial relief can be structured to avoid 
such windfall gains.

Suit for additional relief was held possible even though the 

employee had agreed that any arbitration award would be 

final. 39 L.Ed.2d at 153-154. This Court has also held that, 

where an employee wins relief in an arbitration proceeding, 

he may sue for additional relief under Title VII so long as 

he does not seek duplicate relief involving any unjust 

enrichment. Hutchings v. United States— Industriê — Inc_. ,

428 F.2d 303, 312 (5th Cir. 1970). Additional relief may 

also be sought to supplement relief obtained in a government 

pattern or practice suit, or in any other forum. Williamson 

v. United States Steel Corporation, 468 F.2d 1201 (2d Cir. 

1972) .

38





The same rule applies where relief was obtained in the 
initial forum by compromise rather than litigation to final 
judgment. ' Consideration of expense, delay, and likelihood 
of success may make it desirable, for example, that an 
employee compromise a dispute in a particular forum. But 
in so doing the employee waives, at most, not his right to 
further relief in all forums but only his right to further 
relief in the particular forum involved. If an employee 
cannot be forced as a condition of winning partial relief in 
one forum to waive his rights to seek additional relief else­
where, it follows a fortiori that he cannot be required to
execute such a waiver as a condition of receiving the same or fewer 
benefits under a compromise in that initial forum. If an employee

were owed $1,000 in back pay and obtained, through decision 

or compromise, $500 in a pattern or practice suit,

8/ The employee could not, of course, make a valid 
prospective waiver of his right to pursue any remedy.^
Whether, or under what JcSlar forum need notclaims may be compromised as t P Carbidebe decided in this case. See^Voutsis v,_u------------
Corporation, 452 F.2d 883, o3-± (2d~ cLr. 1971)

39





EEOC suit for him individually, in a proceeding under state 

anti-discrimination laws, an order of the National Labor 

Relations Board, through enforcement of Executive Order 

11246, or through a union arbitration proceeding, the 

employee would still be entitled to sue under Title VII for 

the balance of $500.
With regard to back pay, the only right that an 

employee can waive in return for partial payment in a given 

forum is his right to seek additional relief in that forum.

In the instant case the most that can be validly released is 

the employee's right to additional back pay in a government 

pattern or practice action. To the extent that paragraph 

18(g) purports to require a waiver of any other rights, it 

is unlawful and must be stricken from the decree.

II. Section C Of Decrees I And II Unlawfully Requir_e
The United States To Oppose Private Litigation.
Seeking Greater Systemic Relief Than Obtained By_
The United States Under The Decrees.
Section C of Consent Decrees I and II require that, if 

a private litigant seeks more systemic injunctive relief than 
the government obtained through the negotiations leading to 
the Decrees, the United States is obligated to assist the 
defendants by opposing, in court, any such additional relief.

40





If a private individual seeks, in a separate 
action or proceeding, relief other than back 
pay which would add to or be inconsistent 
with the systemic relief incorporated in this 
Decree, the plaintiffs will undertake to 
advise the Court or other forum in which such 
private action or proceeding is brought that 
such relief in that action or proceeding is 
unwarranted.

Appendix, 18a, 70a. In a letter dated June 3, 1974, the

parties indicated that the United States is bound to oppose

such a private action even if the government believes the

additional relief is necessary.
[I]t is recognized by all parties to the 
Consent Decree that, as a result of unantici­
pated or changed circumstances, the plaintiffs' 
position in a particular case may not be that 
reliet requested therein is per sc undesirable 
or unnecessary. In these situations, the 
plaintiffs' commitment under paragraph C is 
to advise the Court in which the private action 
is pending that such relief is unwarranged in 
that action or proceeding. The point of para­
graph C is that even in those situations the 
Consent Decrees, in the opinion of the parties 
thereto, provide an appropriate mechanism for 
adopting corrective steps to overcome any 
shortcomings in the Decrees or in their 
implementation.

Appendix, 176a-177a.
Several questions regarding the precise meaning of this 

clause were not resolved in the District Court. (1) If a private 

litigant seeks additional relief in this case, through inter­

vention or otherwise, from the District Court for the Northern

41





District of Alabama, would that be a "separate action" which 

the United States must oppose? (2) Is the United States 

obligated only to urge the courts to postpone temporarily 

judicial proceedings so that the parties can attempt to 

resolve requests for additional relief under the Decree 

mechanisms, or is the United States required to urge the 

courts to permanently refuse to entertain such requests for 

relief? (3) If the United States successfully urges that a 

court defer to the Consent Decree enforcement provisions, is 

the United States then obligated to seek or present for con­

sideration under the Decrees the additional relief originally 

sought by the private litigant in court?

This provision of section C must be set aside because 

federal officials have no authority to consent to such an 

obligation, because the district court lacked jurisdiction to 

order it, and because the position for which the United 

States is required to argue is clearly inconsistent with 

Title VII.
The threshold question presented by this clause is 

whether a United States district court has jurisdiction to 

order the United States government, on pain of contempt of 

court, to take a particular legal position in other federal 

and state courts in other civil actions, the facts of which

42



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■

,

. :? -- r  4

■



are as yet unknown. The jurisdiction of the federal courts

to issue orders against any party is strictly limited to 

areas where such jurisdiction has been expressly established 

by statute. Sheldon v. Sill, 8 How. (49 U.S.) 440 (1850).

The facts alleged by the pleadings do not establish any 

cause of action against the United States on behalf of the 

defendants; the defendants filed no counterclaim for such 

relief or indeed any responsive pleading at all. Indeed, 

there are no facts which, if pleaded and proved, would pro­

vide a federal court to issue an injunction requiring the 

United States "to advise" another court or forum that certain 

"relief in that action or proceeding is unwarranted." Had 

the defendants in this action sued or counterclaimed for such 

relief, that claim would necessarily have been dismissed for 

lack of jurisdiction. In this case, however, the attorneys 

representing the government have consented to the entry of 

such an order. But the original parties may not by consent 

confer subject matter jurisdiction on the federal courts, 

and where they attempt to do so an intervenor may properly 

contest the existence of such jurisdiction. Cochrane__y.

W. F. Potts Sons & Co., 47 F.2d 1027 (5th Cir. 1931); 3B 

Moore's Federal Practice, S 24.16[2]. The district court neces 

sarily lacked the power or jurisdiction to enter an order

43



'



requiring the United States to take any position whatever 
in other litigation.

Nor could federal officials enter into an enforceable 
contract to take any position in particular litigation.
Article II of the Constitution vests the executive power in 
the President and his subordinates, who are given unfettered 
discretion as to what positions to argue in court and when 
to decline to take any position at all. That discretion is 
necessarily exercised in ways which reflect.not only changes 
in circumstances over periods of time, but the policies of 
the national government chosen by the electorate. The present 
Attorney General, Mr. Saxbe, and General Counsel of the 
E.E.O.C., Mr. Carey, cannot obligate themselves, much less 
their successors, to take any position in future litigation.
The policies of the United States government must be determined 
in the light of the facts of each case and the applicable law, 
and cannot be predetermined by a contract which was estab­
lished in return for payments to minority steelworkers any 
more than in return for payments to a campaign committee.

The role which the United States is obligated to 
assume is inconsistent with the relevant statutes. The Equal

Employment Opportunity Commission, the Civil Rights Division, 
and the Office of Federal Contract Compliance were established

44



■
■

v -  f  *5 • $ $ *  I  I t  , -1 * 3 ;  ' f



to prevent discrimination in employment— not to obstruct 

private efforts to end discrimination or to provide free 

legal aid for multi-billion dollar corporations. The 

limited resources available to these agencies are appropriated 
solely to support litigation on behalf of minority employees. 

Doubtless, Congress might have appropriated funds or estab­

lished an office to defend employers from whom excessive 

injunctive relief is sought, but Congress did not, and 

officials of the Departments of Justice and Labor and the 

Equal Employment Opportunity -Commission are powerless to remedy 

Congress's refusal to do so. The defendants do not seek to 

regulate the position to be taken by the United States 

because defendants cannot afford to hire competent counsel 

or because the United States is able to advance contentions 

which defendants cannot. Rather, the steel companies and 

union seek to purchase, for $31 million and other considera­

tion, the prestige of the government's civil right lawyers 

to obstruct efforts to obtain additional injunctive relief 

to remedy racial discrimination.
Section C is also inappropriate because it requires 

federal officials to advocate a position absolutely incon­

sistent with the provisions of Title VII. The parties insist 

that the government is not obligated to oppose additional

45



„

■



injunctive relief on the merits, but only on a procedural 

ground— that all claims for additional relief should be 

resolved under the Decrees by the Implementation Committees 

and the Audit and Review Committee. Section 706(f)(5) pro­

vides that any private action for additional injunctive 

relief must be tried at "the earliest practicable date," and 

while the court may defer proceedings pending "efforts of 

the Commission to obtain voluntary compliance," it may not 

defer such proceedings for more than 60 days. Section 706 

(f) (1) . But the United States under Section C must urge the 

courts to postpone any consideration of claims for additional 

injunctive relief, not for 60 days, but indefinitely. Sec­

tions 706(f)(3) and (4) provide that the merits of a claim 

for injunctive relief must be decided by a federal judge.

But Section C requires the government to urge that such 

claims be decided by committees dominated by representatives 

of the defendants, a type of forum expressly condemned by 

the Supreme Court as untrustworthy. Glover v._St.— Louis-SanJL/
Francisco Railway, 393 U.S. 324 (1969). The Commission and

JL/ The Decrees do not provide that, if the Implementation 
or Audit and Review Committees reject or fail to act on a 
request for additional relief, an aggrieved employee may then 
litigate that matter before the District Court for the 
Northern District of Alabama which approved the Decrees.

46





Department of Justice suggest that they acceded to a court

order requiring them to take these positions because they

believe that the procedures set up by the Consent Decrees,

rather than the litigation procedures set up by Title VII,

are the "appropriate mechanism" for ending discrimination.

Appendix, 177 a. But the decision as to what shall be

the appropriate mechanism is not to be made by attorneys of

the Executive Branch, it is a decision already made by
10/  ’

Congress in favor of private litigation. If the Attorney

9 / Continued
Section 706(f) (1), moreover, provides that venue of a Title 
VII action shall be in the district in which the discrimina­
tion occurred, where the employee would have worked but for 
the discrimination, or where the relevant records are kept.
With the exception of the Fairfield Works of United States 
Steel plant and the Republic Steel's Gadsden and Thomas Works, the 
Northern District of Alabama is the wrong district for_ venue pur 
poses, and an employee cannot be required to litigate m s  claims
thousands of miles from his home, his job, or the relevant 
evidence.
ip/ Congressional supporters of such judicial proceedings, 
as opposed to less formal agency proceedings, argued:

The appropriate forum to resolve civil rights 
questions, questions of employment discrimina­
tion as well as such matters as public 
accommodations, school desegregation, fair^ 
housing, and voting rights, is a court. Civil 
rights issues usually arouse strong emotions.
United States district court proceedings pro 
vide procedural safeguards; federal judges are 
well known in their areas and enjoy great

47





General or the Chairman of the E.E.O.C. believes that Congress 

erred in authorizing private litigation for injunctive relief, 

generally or in the steel industry in particular, that 

argument should be made, not to "the Court or other forum 

in which such private action or proceeding is brought," but 

to the Senate and House of Representatives.

Ill. Decrees I And II Unlawfully Restrict The Power Of 
The E.E.O.C. To Maintain Actions Under Section 705 
(f) (1) Of Title VII Of The 1964 Civil Rights Act.

Section C of Decrees I and II provides that the Decrees

settle, as among the parties,... all questions regarding past

acts of discrimination.
This Decree resolves all issues between 
plaintiffs and defendants relating to acts 
and practices of discrimination by the 
defendants to which this Decree is directed, 
as well as any future effects of such acts 
and practices and, with respect to such

10/ Continued
respect; the forum is convenient for liti­
gants and is impartial; the proceedings are 
public, and the judge has power to resolve 
the problem and fashion a complete remedy.
... The Federal Rules of Civil Procedure, 
with respect to discovery, would greatly 
facilitate the collection of evidence for 
trial.

H. Rep. No. 92-238, 92nd Cong., 1st Sess., p. 62. Virtually 
none of these characteristics of judicial proceedings are 
true of a decision by the Audit and Review Committee.

48





matters, compliance with this Decree shall be 
deemed to be compliance with Title VII and 
Executive Order 11246, as amended, and ; shall 
be deemed to satisfy any requirement for 
affirmative action by defendants or any of 
them. The doctrines of res judicata and 
collateral estoppel shall apply to all plain­
tiffs with respect to all issues of law and 
fact and matters of relief within the scope 
of the complaint or this Decree.

Appendix, 18a, 70a. Although the first sentence appears to 
limit the scope of this settlement to matters actually dealt 
with and nominally resolved by the Decrees, the second sen­
tence extends that effect to problems of discrimination 
alleged in the complaint but not resolved by the Decrees 

at all.
The types of discrimination alleged in the complaint is 

significantly broader than the forms of discrimination reme­
died by the Decrees. Paragraphs 15 and 16 of the complaint 
allege in the broadest of language that the defendants have 
engaged in acts, practices and policies which discriminate 
against minority and female employees in hiring, promotion, 
and terms and conditions of employment. Section C thus pre­

cludes the E.E.O.C. frdm obtaining relief for minority 
employees whose rights have been violated by the defendants 
but who- have obtained no remedy under this Decree. The 
United States conceded in the District Court:

49



'



In the give-and-take of negotiation, the 
Government has surrendered the right to 
bring suit on charges of past discrimina­
tion unrelated to the systemic practices 
in the decrees (e.g., a suspension result­
ing from the alleged bias of a foreman).

Response of Plaintiffs to Motions for Leave to Intervene, 
p. 24. Precisely what other rights to sue the Government may 
have "surrendered" is not clear on the record in its present 
form, but the Decrees would appear to preclude the Commis­
sion from seeking (1) back pay or injunctive relief for any 
employee injured by a discrete, non-systemic act of dis­
crimination; (2) back pay or preferential hiring or seniority 
status for applicants previously rejected by defendants 
because of their race, sex, or national origin; (3) back 
pay for minority employees subjected to systemic discrimina­

tion since 1968; (4) back pay or injunctive relief for
employees subject to systemic dismissal because of their 
race, sex, or national origin. Not only must these rights 
go unredressed, but unless tin victims of such practices also 
were victims of certain other systemic discrimination, they 

will receive no benefits whatever under the Decree.
Section 706(f)(1) of Title VII provides that, whenever 

the Commission is unable to secure voluntary compliance from 

an employer, the E.E.O.C. may bring a civil action for

50





injunctive relief, back pay, or other affirmative action. This 
provision was added to permit the Commission to represent the 
interests of minority employees who are frequently unable to 
bear "the burden of going to court, initiating legal proceedings 
by retention of private counsel, and the attendant time delays 
the legal costs involved . . . S. Rep. No. 92-415, 92nd Cong.,
1st Sess., p. 17. Congress contemplated that "the vast majority 
of complaints will be handled through the offices of the E.E.O.C. 
Legislative History of the Equal Employment Opportunity Act of 
1972, pp. 1772, 1847 (Remarks of Senator Williams).

The fatal defect in the provisions of 'Section C described
above is that the Commission, in negotiating relief for certain
employees, has abandoned its responsibilities to protect through

10a/litigation other employees. m  terms of the Government1o own 
example, the Commission has agreed not to sue for a worker sus­
pended by a biased foreman in return for an award of relief to 
different employees. Whatever power the Commission may have to 
compromise the various claims of a particular employee, it cannot 
sacrifice the rights of one employee for the benefit of another. 
The Code of Professional Responsibility expressly precludes an 
attorney from sacrificing the interests of one client to those of

10a/ Congress established EEOC's right to litigate because it 
recognized the heavy burden on individuals who bring Title 
actions. See Pettwav v. American Cast Iron Pipe Company,
998, 1005 (5th Cir. 1969).

51



.. . V'S'S - "... . '

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.



for aothers. No responsible lawyer would entertain
second a proposal that he refuse to represent one client in 
return for a settlement offer to a second client. Section C 
presents the Commission with just such a conflict of interest.

Both ordinary considerations of ethics, and the Commis­
sion's responsibilities to each minority employee under 
section 706(f) (1), preclude the Commission from trading off 
the rights of one employee to obtain benefits for another. 
Certainly that is the case where an employer asks the Commis­
sion to abandon its duty to represent one group of minority 
employees in return for concessions of money or injunctive 
relief for another group of employees. The government should 
have rejected such a proposal out of hand, and Section C, to 
the extent that it requires such a result, is clearly unlawful

11/

11/ Canon 5 provides "A lawyer should exercise independent 
professional judgment on behalf of a client." Disciplinary 
Rule DR 5-105(B) states "A lawyer shall not continue mul^ 
pie employment if the exercise of his independent pro es 
sional judgment in behalf of a client will be or 15 
to be adversely affected by his representation of another^ 
client, except to the extent permitted under DR 5-105(C).

52



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IV. Section 19 of Decree I Unlawfully Restricts the 
Power of the E.E.O.C. To Conciliate Charges of 
Discrimination Under Section 706(b) of Title VII 
of The 1964 Civil Rights Act.

Section 706 (b) of Title VII requires that, when an 
employee files a formal complaint with the Equal Employment 
Opportunity Commission and the Commission concludes there 
is reasonable cause to believe the employer has engaged in 
discrimination, "The Commission shall endeavor to eliminate 
any such alleged unlawful employment practice by informal 
methods of conference, conciliation, and persuasion." 42 
U.S.Co §2000e-5 (b). The responsibility of the Commission 
was understood bv Congress, to encompass "informal mediation," 
"discussion —  give and take," and "negotiation toward an 
agreement'^ Legislative History of the Equal Employment 
Opportunity Act of 1972, pp. 1474-1476. The E.E.O.C. regula­
tions require the Commission to seek a "just resolution" in 

each case. 29 C.F.R, § 1601.22.
Section 19(a) of Decree I provides:

Promptly following the date of entry of this 
Decree, plaintiff Equal Employment Opportunity 
Commission shall review chargespending against 
any defendant. Such review shall identify all 
such charges alleging unlawful employment 
practices wholly within the scope of this 
Decree, within 60 days after completion of 
such review, EEOC shall advise the charging 
party in each case so identified that, in view 
of the relief provided under this Decree, EEOC 
finds the practice complained of has been

53



f



resolved by this Decree and recommends to 
each such charging party entitled to back 
pay under this Decree that he accept such 
relief and execute the release.

Appendix, pp. 61a- 62a. This provision appears to contem­

plate (1) that the Commission will make no further effort at 

conciliation if a charging party indicates that he or she 

believes the Decree does not resolve his or her problem,

(2) that a charge will be treated as "wholly within the scope 

of the Decree" if it alleges the type of systemic discrimina­

tion to which the Decree is directed, regardless of whether 

the Decree actually solves or is likely to solve the problems 

of the charging party. There was no claim that the E.E.O.C., 

when it agreed to this provision, had reviewed all the pend­

ing charges to determine whether, in fact, there were no 

complaints "wholly within the scope" of the Decrees which 

would not be adequately remedied by the Decrees.
Such a requirement abrogates the statutory conciliation 

procedure. First, the Commission relinquishes any good faith 

mediating role. There is to be no "give and take between 

employee and employer, no "negotiation." Instead the 

Commission, acting on behalf of the defendant employers, is to 

offer the terms of the Decrees on a "take it or leave it" basis 

Such a refusal to consider or discuss different or more partic­

ular relief in each individual case is precisely the same

54



'

• ! fr $



attitude condemned as inconsistent with good faith nego­
tiation in N.L.R.B. v. General Electric Company, 418 F.2d 
736 (2d Cir. 1969), cert, den. 397 U.S. 965 (1970).

Second, this approach is plainly inconsistent with the 

Commission's obligation to attempt to negotiate a just reso­

lution of each charge. The instant Decrees represent, at
a

best, the outline of/general proposal broadly drafted to 

cover over 200 plants in 25 states. It cannot be seriously 

contended that such a nationwide decree could deal with, 

let alone resolve, the myriad of particular problems in each 

shop and office. Moreover in the instant case the Decrees 

are so vague that the Commission has no way of knowing just 

what specific job opportunities the Decrees will afford to a 

plate marker in Pittsburgh or a janitor in Lackawanna. Doubtless 

the Commission's review will reveal instances where, although 

the charging party ves subjected to systemic discrimination, 

the Decrees will not resolve his particular problem. The 

Commission cannot reasonably be required to urge in such cir­

cumstances that the charging party accept as a settlement 

Decrees which do not provide adequate relief.
The District Court, moreover, lacked jurisdiction to enter 

any order restricting the responsibilities of the E.E.O.C. to 

seek to conciliate pending charges. Title VII establishes no

55





cause of action on behalf of employers or unions to require 

the Commission to press particular forms of settlement on 

charging parties. The only enforceable duty imposed on the 

Commission is to attempt to negotiate whatever conciliation 

agreement will fully remedy discrimination previously 

inflicted upon each aggrieved employee according to the 

facts of his particular case. In cases where the Commission 

concludes that the Decrees will in fact resolve an employee's 

problems, it should so advise the employee. Where the 

Commission concludes an employee needs additional or incon­

sistent relief, it should seek to conciliate an agreement on 

that basis. But the District Court cannot control the 

Commission's approach to conciliation, and the Commission 

cannot commit itself in advance to any position irrespective 

of the facts of each particular case. For these reasons 

Section 19 of Decree I is unlawful.
V. Section C of the Decrees and Section 16 of Decree JE

Unlawfully Limits The Authority of The Office of. ..Federal 
Contract Compliance and the Secretary of Labor.

Since 1941 a series of Executive Orders have forbidden 

contracting agencies of the federal government to enter into 

contracts with employers who discriminate on the basis of race 

See E. 0. 8802 (1941), E. 0. 9346 (1943), E. 0. 10308 (1951), 

E. 0. 10479 (1953), E. 0. 10557 (1954), E. 0. 10975 (1961),

E. 0. 11246 (1965). The most recent Executive Order, E. 0.

56



.

: ■ ■

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'



11246, placed primary responsibility for enforcing this 

rule on the Secretary of Labor. The Secretary has in turn 

delegated many of his responsibilities to the Office of 

Federal Contract Compliance within the Department of Labor.

41 C.F.R., Chapter 60. The O.F.C.C. in turn has transfered 

certain functions to the particular federal agency contracting 

with any given employer. 41 C.F.R. 60-1.6. See generally 

Farkas v. Texas Instrument, Inc., 375 F.2d 629 (5th Cir. 1967); 

Farmer v. Philadelphia Electric Company, 329 F.2d 3 (3d Cir. 

1964).
In addition to forbidding discrimination by federal con­

tractors, the Executive Order and regulations require those 

contractors to take "affirmative action to assure that appli­

cants are employed, and that employees are treated during 

employment, without regard to their race, color, religion, sex 

or national origin." E. 0. 11246, § 202(1); 41 C.F.R. §§ 60-2.1 

to 60-2.32. Contractors are required to file annually a 

detailed Compliance Report, E. 0. 11246, § 203, 41 C.F.R. § 60-1 

to file an affirmative action plan within 120 days of the recom­

mendation of each contract, 41 C.F.R. §§ 60-1.40, 60-2.1 to 60-2 

and to permit on site inspection, 41 C.F.R. § 60-60.4 (b). The 

Director of the O.F.C.C., or the contracting agency involved, 

must conduct at least annually a comprehensive Compliance

.7,

.32,

57



I



Review of these reports and other materials to determine 

whether major contractors are in compliance with the law.

41 C.F.R. §§ 60-1.20, 60-60.1 to 60-60.9. If the Compliance 

Review indicates the contractor is engaging in discrimination 

and the contractor refuses to alter his practices voluntary, 

the Director or Compliance Agency conducts a hearing on the 

relevant issues. 41' C.F.R. §§ 60-1.26, 60-30.1 to 60-30.35.

If, as a result of the hearings, the Secretary determines 

that the contractor is engaged in discrimination, he then 

invokes one or more of a variety of sanctions, including in 

particular the cancellation of contracts with the offending 

employer. E. 0. 11246, § 209, 41 C.F.R. §§ 60-1.27. The 

primary method of enforcement of the Executive Orders is an 

administrative review and hearing regarding the employer's 

practices, followed by termination of the contract unless

the discrimination is ended.
The complaint in this case alleges two causes of action:

one, to enforce Title VII, by the E.E.O.C., and a second, to 
enforce Executive Order 11246, "in the name of the United States

of America by William B. Saxbe, the Attorney General, on behalf 
of Peter J. Brennan, the Secretary of Labor." Appendix, 6a. 
Section C of Decrees I and II provides that, as to all plaintiffs, 
the Decrees are res judicata and resolve all issues relating

58



,

■

.



to the acts and practices of discrimination to which the

Decrees are directed, Appendix, 18a, 70a. Section

16 of Decree I further provides:

So long as the defendants are in compliance 
with the provisions of this Decree and of 
Consent Decree II entered this date, the 
Secretary of Labor and the Office of Federal 
Contract Compliance shall rely upon the con­
tinuing audit of that compliance by Government 
representatives to the Implementation Com­
mittees and by the Government member of the 
Audit and Review Committee as adequate for pur­
poses of all compliance reviews under-Executive 
Order 11246, as amended, at the plants and 
facilities listed in paragraphs 3 (c) and (d).

Appendix, 54a-55a. .
The combined effect of Sections C and 16 were not defi­

nitely established in the District Court. Their meaning, 

however, appears to include the following: (1) So long as

the defendants are in compliance with the Decrees, neither 

the Secretary of Labor, the O.F.C.C., nor any contracting 

agency can cancel or refuse to enter into a contract with the 

defendants on the grounds of racial discrimination within the 

scope of the Complaint or the Decrees; (2) Any charge that 

the defendants are in violation of Executive Order 11246 or 

the regulations thereunder must be decided, not by the O.F.C.C. 

or the Secretary of Labor, but by the Implementation and Audit 

and Review Committees, subject to judicial review, if the 
violation involves discrimination within the scope of the Complaint

59



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(3) The defendants are no longer obligated to provide the O.F.C.C., 
Department of Labor, or any contracting agency the information 
normally contained in Compliance Reports, except to the extent 
that the government member of the Audit and Review Committee, 
who may not be an employee of any of those agencies, requests 
information under Decree I, 5[15 (b) ; (4) Neither the O.F.C.C.,
Secretary of Labor, or any contracting agency shall conduct 
compliance reviews of any of the plants subject to the Decrees 
at least as long as those Decrees remain in ettect.

Doubtless the government negotiators concluded that, in 

return for dismantling the enforcement procedures established 

by Executive Order 11246 and Chapter 60, 41 C.F.R.,they could 
win additional concessions from the defendants in the form of 

injunctive or monetary relief. Any employer would certainly 

welcome such an ironclad eligibility for government contracts, 

or a change which placed primary responsibility for resolving 

questions of discrimination in committees dominated by em­

ployers. The O.F.C.C. may have been relieved to be spared 

the paperwork of annual compliance reviews, and have welcomed 

the chance to renegotiate downwards the number of reports 

required by the Code of Federal Regulations. The Secretary of

60





Labor and the Attorney General may even have concluded, in 

good faith, that they could obtain more substantive relief 

through the informal and confidential procedures set up by 

the Decrees than they could under the more rigid structures 

established by the regulations and Executive Order.

But the regulations and Executive Order have the force 

of law. Farkas v, Texas Instrument, Inc. 375 F.2d 629, 632 

(5th Cir. 1967); Hadnott v. Laird, 463 F.2d 304, 309, n. 13 

(D.C. Cir. 1972). Until the regulations or Executive Order 

are formally amended or rescinded, no federal official has 

the authority to disregard their commands. Service v. Dulles,
o c / i  tt  o

-1- v_> •  \  J ----

A similar question arose regarding school desegregation 

in Adams v. Richardson, 351 F. Supp. 636 (D.D.C. 1972)', 480 

F. 2d 1159 (D.C.Cir. 1973). In that case Title VI of the 1964 

Civil Rights Act, 42 U.S.C. § 2000d~l, required the termination 

of Federal assistance to segregated school systems when deseg­
regation could not be obtained by voluntary means. The Department 

of Health, Education and Welfare adopted a policy of seeking 

integration solely through negotiation aimed at voluntary 

compliance, and to disregard the other enforcement procedures 

established by Congress. The Court of Appeals for the District 

of Columbia, sitting en banc, held that the Secretary of Health,

- 61



».; .... i

.



Education and Welfare and the Director of HEW's Office of Civil
Rights had unlawfully failed to enforce Title VI, and approved
an injunction directing them to initiate termination procedures.

The Act sets forth two alternative courses of 
action by which enforcement may be effected.
In order to avoid unnecessary invocation of 
formal enforcement procedures, it includes 
the proviso that the institution must first 
be notified and given a chance to comply 
voluntarily. Although the Act does not pro­
vide a specific limit to the time period with­
in which voluntary compliance may be sought, 
it is clear that a request for voluntary com­
pliance, if not followed by responsive action 
on the part of the institution within a rea­
sonable time, does not relieve the agency of 
the responsibility to enforce Title VI by one 
of the two alternative means contemplated by the 
statute. A consistent failure to do so is a dere­
liction of duty reviewable in "the courts.

.480 F.2d at 1263= The Court rejected the argument that the 

Department's decision not to enforce the law
in the manner required by statute was a matter of unreviewable 
discretion. 480 F.2d at 1161-61.

In Legal Aid Society y. Brennan, 8 EPD 5[9483, (N.D. Cal.
1974) the Secretary of Labor and a contracting agency had approved 
affirmative action plans from 29 government contractors which 
did not meet the requirements for such plans established by 
Executive Order 11246 and 41 C.F.R. Chapter 60. The district 
court rejected the defendants' argument that they had discretion 
to accept plans which did not meet the standards set in the 
regulation, concluding that the "defendants are charged with an 
enforceable legal duty to disapprove affirmative action programs

62



«



which do not comply. . ."8 EPD at p. 5182. The contracting 
agency was directed to disapprove any plans not meeting the 
criteria established by the regulations.

To the extent that the government acceded to any of the 
modifications of the O.F.C.C. procedures as described supra, 
pp. 57-58 , they acted in excess of their authority. No contracting 
agency could bind itself to accept obedience to the Decrees as 
compliance with the Executive Order regardless of whether the 
Decrees work. When a contractor makes and the agency accepts a 
commitment to undertake such changes in personnel rules, the
regulations direct that

[t]he contractor shall be notified that making 
such commitments does not preclude future 
determinations of noncompliance based on a 
finding that the commitments are not sufficient
to achieve compliance.

41 C.F.R. §60-1.20 (b) (Emphasis added). The government cannot 
delegate to the courts, the Audit and Review Committee, or the 
Implementation Committees responsibility for reviewing the 
compliance of a contractor to determine whether, pursuant to 
a commitment or otherwise, the contractor is in compliance
with the Executive Order.

The Compliance Agency shall have the primary 
responsibility for the conduct of compliance
reviews.

41 C.F.R. §60-1.20(0 (Emphasis added), Nor can the government 
waive the requirement that there be compliance reviews; 41
C.F.R. §60-1.20 (d) provides in absolute terms

63





No such contract [for more than $1 million] 
shall be awarded unless a pre-award com­
pliance review of the prospective contractor 
and his known first-tier $1 million subcon­
tractors has been conducted by the compliance 
agency within the 12 months prior to the award.

Nor do the regulations confer on any contracting agency
discretion to permit contractors to cease filing compliance
Reports.

Each agency shall require each prime con­
tractor and each prime contractor and sub­
contractor shall cause its subcontractors 
to file annually on or before the 3lst 
day of March, complete and accurate re­
ports on Standard Form 100 (E.E.O.—1) 
promulgated jointly by the Office of 
Federal Contract Compliance, the Equal 
Employment Opportunity Commission and 
Plans for Progress. . . .

41 C.F.R. §60-1.7 (a) (Emphasis added).
No reason appears why the Secretary of Labor, Attorney 

General and United States of America have been joined as a 
plaintiff in this action except as a device to give the 
District Court jurisdiction to enter an order dismantling the O.F.C

64



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■h s



procedures. The applicable regulations provide that, if the
O.F.C.C. believes a contractor may be guilty of discrimination, 
the Office is to conduct a detailed hearing on the matter. 41 
C.F.R. §§60-30.1, et seg. If the Secretary of Labor concludes, 
on the basis of the hearing, that the contractor is engaging 
in discrimination, the Director of the O.F.C.C. may authorize 
one or more of six enforcement procedures: (1) publication of the 
name of the contractor as one not in compliance with 
Executive Order 11246; (2) direct contracting agencies to refrain
from entering into contracts with the contractor; (3) cancel 
existing contracts with the contractor; (4) refer the matter to the 
E.E.O.C. for proceedings under Title VII; (5) refer the matter 
to the Department of Justice for criminal proceedings; (6) refer 
the matter to the Department of Justice for proceeding to enjoin 
the contractors from violating the anti-discrimination provision 
of their contracts. 41 C.F.R. §60-1.27; E.O. 11246, §209 (a). 
Remedies (3) and (6) may only be invoked after "conference, con­
ciliation, mediation and persuasion" have failed. E.O. 11246,
§209 (b) .

This action purports, in part, to be an action by the 
Department of Justice to enjoin the contracting steel companies 
from violating the anti-discrimination provisions of their 
contracts with the United States. Appendix, 6a, 12a.
But the complaint does not allege that any hearing was ever 
held regarding these companies by O.F.C.C. or any other con­
tracting agency, or that the Director as a result referred the

65





matter thereafter to the Department of Justice. And the 
jurisdictional prerequisite of §209(a) is clearly not met; this 
obviously is not a case where litigation was necessary after 
efforts at negotiation between the government and companies had 
failed. On the contrary, it was only filed after those negotia­
tions had been successfully completed. This action was filed, 
not to litigate relief against an obstinant contractor who 
refused to meet his obligations, but to obtain a judicial 
imprimatur on a compromise originated by the defendants and 
already accepted by all parties. See Brief of Union Defendant- 
Appellees, p. 15, Ford v. United States Steel Corporation,
No. 73-3907 (5th Cir. )

^ -n -t-T  ̂ imnl OT1 o f  t h e  S U b s t a t l  —n a u  l iic  w . j- . ^ . w »->=•»-.*->-« “■*■*—  J------------------ -

tive provisions of the Decrees, and the companies been unwilling 
to agree voluntarily, the O.F.C.C. had ample authority, after a 
hearing, to terminate all contracts with the defendants if they 
did not accede to such charges in their employment practices.
Such a hearing and threat of termination is the ordinary proce­
dure followed by the United States since the first Executive 
Order forbidding discrimination by federal employers. See e.g., 
Joyce v. Mccrane, 320 F.Supp. 1284 (D.N.J. 1970). The government 
has rarely if ever resorted to court action to enforce the 
Executive Orders, Electric Conpan^, 329
'.2d 3 (3d Cir. 1964), and had the defendants sought review of the 
lecision by O.F.C.C., the scope of judicial review would have been 
extremely limited. Joyce^_McCrane, 320 F.Supp. 1284, 1289

66



■



(D.N.J. 1970) . Even where a court refused injunctive relief 
to enforce an employer's contractual violations, the O.F.C.C. 
could effectively compel the same changes in personnel pro­
cedures by threatening a cancellation of federal contracts.

In sum, the Secretary of Labor, Attorney General and 
United States of America were improperly named as parties, since 
the circumstances necessary for such a suit to enforce a decision 
by the O.F.C.C. or Secretary of Labor are not met in this case. 
Since the District Court already had jurisdiction over the sub­
ject matter pursuant to the E.E.O.C. cause of action under Title 
VII, the joinder of the other federal defendants served no purpose 
other than to permit the Court to enter an order binding O.F.C.C. 
on the merits or limiting its enforcement powers. The District

Court ucl*£0cl 4- T Ar> AtTAl V . 4 - - !  —  i - 1 -  -  - -^ / x a x u  c x i - a .  v u i c i

the E.E.O.C., and certainly lacked the power to alter in any 
particular manner the enforcement provisions regarding the O.F.C.C 
and Secretary of Labor established by Executive Order 11246 and 
41 C.F.R. Chapter 60. Accordingly, paragraph 16 must be stricken 
from Decree I, the complaint dismissed insofar as it purports 
to state a cause of action on behalf of the United States, the 
Secretary of Labor, or the Attorney General, and the two Decrees

modified accordingly.

67





VI. Peeress I and II Unlawfully Fail To
Provide For Adequate Judicial Supervision 
Of The Decrees.

Section 20 of Consent Decree I provides:
The Court hereby retains jurisdiction of 
this decree for the purpose of issuing any 
additional orders or decrees needed to 
effectuate, clarify or enforce the full purpose 
and intent of this decree.

Appendix, 63a. Consent Decree II contains a similar provision.
Both decrees authorize the Court to resolve questions regarding 

or arising under the Decrees when the government and the 

defendants on the Audit and Review Committee cannot agree among 

themselves.

In the District Court, intervenors objected that these pro­

visions appeared to restrict the authority of the court to order 

additional relief that might appear necessary, in that (1) the 

Court could not order any additional relief, or take steps to enforce 

the existing provisions of the Decrees, unless asked to do so by 

the government or the defendants; and (2) in the event that such 

a request were made, the power of the Court would be limited to 

clarifying and enforcing the provision of the Decrees, even if 

those Decrees proved inadequate to end racial discrimination or 

the effects thereof. These limitations, intervenors claimed, were 

inconsistent with the responsibility of the court under Title VII 

to fashion a full and effective remedy. The defendants agreed 

that intervenors' construction of the decrees was essentially 

correct. The Union explained:
68





Implicit in this structure is that matters will 
not be brought before the Court to the extent 
that all parties on the Audit and Review Committee 
(including the Government) are satisfied that there 
is compliance with the Consent Decrees. One of 
the important considerations which induced the 
defendants to enter into the Consent Decree was 
the assurance that, to the extent the Government 
was satisfied as to compliance, the time, expense, 
and in-plant disquiet which results from judicial 
proceedings would be avoided.

Union Memorandum, pp. 14-15. Counsel for the companies explained
at the hearing of May 20, 1974.

I think there is a limitation on what the Court 
can do. I think the limitation is that the 
parties have reached an agreement, and that 
agreement cannot be modified without going through 
the machinery that is set up in the agreement . . .

As far as relief that you can grant, there is 
always an area where you take the four corners 
of the document and you read it and determine 
what it.means. And I think you can do whatever 
it means and not anything else.

Transcript of Hearing of May 20, 1974, p. 176. See also Companies 

Memorandum, p. 10.
The District Court correctly concluded that its statutory 

responsibilities could not be so curtailed. It announced that 
it would construe Decree I to permit the Court to look into

problems not raised by the parties:
I have been advised . . .  in argument that the 
parties, at least the defendants, namely the 
companies and the unions take a very limited 
view of the effect of paragraph number 20. I 
believe it is of the consent decree number 1 
and the comparable provision of consent decree 
number 2. If that provision so limits this 
Court that I exercise merely some dry trust 
arrangement subject to being initiated only if

69





there is disagreement among the A. & R. Committee, 
then I am persuaded that I must reject the agree­
ment, and that it would leave this case in a posture 
in which the basic enforcement technique and tools 
which are reposed in the A. & R. Committee would 
be those in which ten of the eleven members of 
the very persons against whom the charge is made 
that they have violated the law. That the United 
States would have one of those eleven members is 
not in my judgment adequate protection to see that 
this decree accomplishes and furthers, I should 
eliminate the word accomplish, but furthers the 
objective stated, namely the objectives of Title 
VII, the securing of appropriate relief within 
the framework of systematic basis for the companies 
involved.

Appendix, 160a-161a. The Court also asserted that, subject 

to prior notice and hearing to the parties, it had power to alter 

the Decrees to the extent necessary to assure that the objectives 

of Title VII were met.

My view of paragraph 20 is 
that if as in any injunctive decree where 
jurisdiction is being retained by the Court, 
there should be matters presented to the Court 
indicating that the overall objective and purpose 
of the decree is not being carried out, then upon 
due notice, due hearing and the like, the Court 
would continue to have jurisdiction over the 
matter. This is not to say that I anticipate 
any major changes or changes such as doubling the 
amount of back pay. If there were to be a question 
about back pay and the amount, it could only occur 
after an evidentiary hearing and perhaps involve 
even decisions involving the proof of violation of 
the Act. There are other items, however, that might 
or might not require that type of full blown hearing. 
I would feel myself bound not to direct something 
that is fundamentally inconsistent with what the 
parties have agreed to except after full hearing.

Appendix, 163a-164a.

70



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.

.



Intervenors also objected that the Decrees prevented 

the Court from carrying out its statutory obligations because 

the Decrees contained no reporting or other provisions to 

provide the Court with information as to the effectiveness of 

or compliance with the Decrees. The District Court took no 

steps to remedy this defect.
Under the Decrees in their present form the parties are 

under no obligation to inform the Court whether the defendants 

comply with the Decrees or whether the relief provided by the 

Decrees proves adequate to end discrimination and to overcome 

the effects of past discrimination.
The system established by the Decrees is designed, not to

give the Court information, but to confer upon each of the parties

an absolute veto over what information the Court can obtain.

If an employee files a grievance with the Implementation Committee

that Committee - which has no government members - has no

obligation under the Decrees to refer the matter to the Audit

and Review Committee; the Decrees merely provide that the

Implementation Committee may do so. Decree I, section 13(b)

Appendix, 52a-53a. Thus, the employer and union at any given
Plant - those with the greatest stake in preventing the Court

from learning that the Decrees are not working or are not being
enforced at that plant - can prevent the Court from learning about

that problem just by refusing to refer the matter to the Audit
and Review Committee- If the matter is referred to the Audit and

- 7 1 -



<:

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'



Review Committee and once again resolved in favor of the union 

and companies, the Court still will not learn of the problem 

unless the Government deigns to inform the Court about the matter. 

The Decrees do not require the defendant to provide any particular 

information to the government, and where the government requests 

and obtains information,it in turn has no obligation to provide 

that information to the Court. The District Court correctly 

concluded that it could not be prevented from acting on some 

problem merely because the parties declined to request any 

additional order, but the Court is equally powerless if the 

parties can refuse to tell the Court that the problem exists.

In Glover v. St. Louis-San Francisco Railway, 393 U.S. 324

(1969), the Supreme Court warned against giving any critical

role in the enforcement process to the very parties charged with

misconduct. In that case the defendant employer and union charged

with racial discrimination claimed that before instituting a civil

action the employee had to first exhaust certain administrative

remedies by and within the employer and union. The Court

unanimously rejected that contention.
In a line of cases beginning with Steele v.
Louisville & Nashville R. Co. [323 U.S. 192 
(1944)], the Court has rejected the contention 
that employees alleging racial discrimination 
should be required to submit their controversy 
to "a group which is in a large part chosen by 
the [defendants] against whom their real complaint 
is made." 323 U.S. at 206. And the reasons which 
prompted the Court to hold as it did about the 
inadequacy of a remedy before the Adjustment Board

72 -





apply with equal force to any remedy administered 
by the union, by the company, or both, to pass on 
claims by the very employees whose rights they 
have been charged with neglecting and betraying.

393 U.S. at 330-331. The situation created by the Decrees is 

significantly worse than that in Glover; not only must an employee 

first have his claim adjudicated by the persons chosen by the 

same union and employer he has charged with discrimination, but 

the employee cannot obtain court review of this obviously biased 

panel unless the alleged wrongdoers, in their unfettered discre­

tion, decide to allow it. With information restricted in this 

manner, the involvement of the Court in policing and adjusting 

the Decrees is no more than a charade perpetuated to give an 

appearance of legality to a settlement which is at best a very 

private arrangement between the government and the defendants.

In fashioning a remedy for discrimination under § 706(g), a 

district court has broad authority and responsibility to fashion 

a "remedial decree and to assure that the decree actually works.

"In formulating relief from such practices, the courts are not 

limited to simply parroting the Act's prohibitions but are 

permitted, if not required, to 'order such affirmative action as 

may be appropriate.'" Vocrler v. McCarthy./ 451 F.2d 1236, 1238 
(5th Cir. 1972). The effectiveness of injunctive relief in Title 

VII cases is inherently incapable of prediction. This is 

particularly true in a case such as this, where the Decrees leave

many critical details to be decided later, often on a  plant by

73





plant basis. See, e.g., Appendix, 26a, 35a-36a, 39a-40a, 43a- 

45a. In United States v. I .B.E.W., 428 F.2d 144 (6th Cir. 1970), 

the defendant union, after the commencement of the action, elected 

a new group of leaders committed to voluntary compliance with 

Title VII. The Sixth Circuit held that the district court could 

not merely accept the union's promises to obey the law, but was 

obligated "to retain jurisdiction and to require the submission 

of reports and maintenance of records to insure compliance with 

the law." The district courts in Title VII cases have regularly 

retained such jurisdiction and ordered defendants to make detailed 

reports to counsel and to the court itself. See, e.g., United 

States v. United States Steel Corporation, 5 EPD 5[ 8619, pp. 7820- 

7822 (N.D. Ala. 1973); United States v. Georgia Power Company,

7 EPD 51 9167, pp. 6890-92 (N.D. Ga. 1974) ; Hairston v. McLean 

Trucking Company, 7 EPD 5[ 9144, p. 8783 (M.D. N.C. 1974); United 

States v. Ironworkers, 5 EPD 51 7973 (W.D. Wash. 1972) .
A similar policy has been applied in enforcing the commands

of Brown v. Board of Education, 347 U.S. 483 (1954). In Green

v. School Board of New Kent County, 391 U.S. 430 (1968), the

Supreme Court recognized there was no single standard form of

relief which would predictably insure the disestablishment of

state-imposed segregation. In addition, the Court instructed that

whatever plan is adopted will require evaluation 
in practice, and the court should retain jurisdiction 
until it is clear that state-imposed segregation has 
been completely removed.

74 -



. >



391 U.S. at 439. In a companion case, the Court reviewed

a lower court decision which ordered into effect a particular

desegregation plan and then dismissed. Raney v. Board of

Education of the Gould School District, 391 U.S. 443 (1968) :

[W] e hold that in the circumstances of this case, 
the district court's dismissal of the complaint 
was an improper exercise of discretion. Dismissal 
will ordinarily be inconsistent with the responsibility 
imposed on the district courts by Brown II. 349 U.S. 
at 299-301. In light of the complexities inhering 
in the disestablishment of state-established segregated 
school systems, Brown II contemplated that the better 
course would be to retain jurisdiction until it is 
clear that disestablishment has been achieved.

391 U.S. at 449. See also Swann v. Charlotte-Mecklenburg Board

of Education, 402 U.S. 1, 21 (1971).
In this case the district court retained jurisdiction but 

made absolutely no provision for "evaluation in practice" through 

reporting. Green v. School Board of New Kent County, 391 U.S.

430, 439 (1968) . Under the Decree in its present form the District 

Court will never know whether the number of blacks in formerly all 

white departments increases or decreases, whether few or any 

minority employees succeed in transferring under the new seniority 

rules, whether most of those transferees still have not risen to 

their old salary level when their two years of rate retention 

expires, whether two-step bidding is adopted at any plants and 

if so, whether it proves more efficacious than three-step bidding, 

whether any existing departments are merged, whether ^ules

regarding temporary vacancies are changed, what affirmative action
g o a l s  are established and whether they are met, what tests are used

- 75 -





and whether they exclude disproportionate numbers of non-whites, 

how many grievances of what types are referred to the 

Implementation Committees, how many employees reject back pay, 

or how many charging parties demand right to sue letters. In 

short, the Consent Decrees make no provision to assure that the 

district court will have the information it will need to assess 

the effectiveness of the Decrees and decide whether, on the 

request of a party or sua sponte, modification or additional 

enforcement of those Decrees is necessary.

The District Court erred in approving Consent Decrees 

deficient in this respect, and the Decrees must be set aside 

unless they are modified to incorporate the necessary mandatory 

reporting provision.

76 -





B. THE DISTRICT COURT SHOULD NOT HAVE APPROVED
THE DECREES WITHOUT FIRST AFFORDING A REASON­
ABLE OPPORTUNITY AND INTERVENTION BY THE 
INTERESTED PARTIES

Discrimination in employment by federal contractors 

such as the defendant steel companies was first forbidden in 

1941 by Executive Order 8802. On July 2, 1965, the Depart­

ment of Justice received authority under section 707 of 

Title VII of the 1964 Civil Rights Act to maintain civil 

actions to remedy a "pattern or practice" of racial discrimi­

nation by private employers. Approximately 8 years later the 

United States began negotiations with the defendants regarding 

their continuing violation of federal law. During the period 

of these negotiations the same violations by the same defend­

ants were the subject of approximately a dozen ongoing private 

civil actions, involving perhaps a third of all minority 

employees of these defendants, and a substantial number of 

complaints filed with the Equal Employment Oppormnity Commis­

sion by aggrieved employees pursuant to Title VII. Throughout 

these negotiations neither the plaintiffs nor the defendants under­

took to provide to minority employees, their counsel or other 
representatives, any information about or opportunity to participate

12/ The number and nature of these charges was never disclosed 
b? the government to the District Court. The defendants have 
refused to disclose to intervenor the number or detail of pend- 
ing litigation.

77





in those negotiations. A request for such information and 

opportunity by the National Organization for Women, as a 

charging party and counsel to certain litigants, was rebuffed 

by the Commission. Appendix, 85a-87a. Nor were such employees, 

counsel or representatives permitted to comment on the pro­

posed agreements before they were acceded to by the government 

or presented to the District Court.
When the Complaint in this action was filed on April 12, 

1974, the United States and the defendants were fully aware of

the identities of the litigants, charging parties, and other

affected minority employees. The parties were also well aware 
that the unprecedented provisions of the Consent Decrees wouio 
be of grave concern to those interested parties. The circum­
stances clearly called for full disclosure to those parties of 
the terms of the proposed Decrees, and an opportunity to be 
heard before the District Court was asked to approve the 
Decrees. Instead, the plaintiffs and defendants deliberately 
sought and obtained judicial approval of the Decrees m  an 
in camera proceeding on the same day the complaint was filed.

Within two weeks after the entry of the Consent Decrees 
the interveners, as a result of newspaper accounts of the case 
moved to intervene. Over the objections of the defendant com­
panies, intervention was granted and the District Court

78



-

■

.

p



entertained on the merits the objections of the instant 

intervenors-appellants. As of the spring of 1974, however, 

none of the charging parties were advised by the Commission 

of the existence of this case or the possibility of interven­

tion. What information was then given to other litigants 

is not known to intervenors or disclosed to the District 

Court. The first time minority employees were formally advised 

of the existence of these Decrees was in early August, when a 

substantial number received a "Notice of Rights" mentioning 

the litigation. The Notice contained no information as to the 

name of the action, the court in which it was filed, or the 

possibility of intervention. What information may have been 

provided to litigants other than intervenors, in connection 

with the Notice or otherwise, is unknown. Charging parties not 

employed at the plants receiving the Notice still, so far as 

is known, do not know of these proceedings.
Section 706(f)(1) and § 707 of Title VII provide an 

absolute right to "person or persons aggrieved" to intervene 

in an action such as this by the Equal Employment Opportunity 

Commission. The right applies both to actions by the Commis­

sion for individual employees under section 706(f)(1), and 

pattern or practice suits under section 707. As the District 

Court correctly concluded, "persons aggrieved

79





refers to those individuals with respect 
to whom alleged discrimination by the 
defendants is within the scope of change 
which has heretofore been presented to the 
EEOC, without regard to when such charge 
was filed by them, by fellow employees with 
similar complaints, by an organization on 
their behalf, or by a member of the EEOC, 
and without regard to whether or not they 
are named plaintiffs or actual or putative 
class members in pending litigation.
Appendix, 186a.

Congress, in establishing this right to intervene, doubtless 

intended that the intervenor have the same full rights to 

participate in the litigation as an original party. If the 

Commission proposes to settle an action on his behalf, the 

employee is certainly entitled to a role in the negotiations 

or an opportunity to comment on the proposed settlement before 

the Commission accepts it. Compare, In re Raabe, 71 F. Supp. 

678, 680 (S.D. N.Y. 1947). This provision reflects the fact

that the real party in interest, whose right to work and to 

back pay are at stake, is the minority employee, and while the 

EEOC may be the nominal plaintiff, the suit is supposed to 
benefit not the Commission but the employee whose rights have 

been violated. The EEOC was authorized to commence civil 

litigation to advance the interests and needs of minority 

employees, and intervention was authorized as a safeguard to 

prevent the Commission from conducting or settling such liti­

gation in a manner advancing the prestige or social theories

80



jO  -t'  .--V ," '  ..i -

i. ;

■ &  l i s

; :§g-S-

• : O X \

? r ”4

■ ' ■.*



of the Commission but inconsistent with the interests of those 
employees.

This right to intervene is rendered nugatory if the 
Commission files and settles a Title VII suit on the same day.
By the time the "aggrieved persons" learn there is a lawsuit, 
it is too late to act: the negotiations are over, the Commis­
sion has bound itself to accept the decree, and the District 
Court has already signed it. If the employee thinks the Com­
mission has not obtained adequate relief and seeks to intervene, 
he will be met by the argument— advanced by the parties in the 
instant case— that intervention will not be allowed for the

■; m n o a r - h - !  nr r  p Apnroi*  a l r e a d y  m a d A ,  U n i t e d  S t a t e s  V .£> y* -— ---—ZJ -----  - ---

California Cooperative Canneries, 279 U^S. 553, 556 (1929); 
Keller v. Wilson, 194 A. 45 (Del. 1937). An employee's right 
to intervene should not depend on a race to the courthouse, 
Pyle-National Co. v. Amos, 172 F.2d 425 (7th Cir. 1949), par­
ticularly when the employee cannot learn about the race until 
after it is over, and among the parties against whom the 
employee must race is the Commission which is supposed to repre­
sent him. The right of intervention established by Title VII

13/ intervention was granted in this case to litigate
the merits of the controversy but solely to contes 187a.
lawfulness of specific provisions of the

81 -





is likely to be nullified when the Commission files and settles 
a civil action on the same day. Sections 706(f)(1) and 707 
require (1) that before the Commission settles a case, the 
affected employees must be afforded a reasonable opportunity 
to participate in the settlement negotiations or make known to 
the Commission their views on the proposed agreement, and (2) 
that the employees be afforded a reasonable opportunity between 
the filing of an action by the Commission and court approval 
of any consent decree to intervene and seek additional relies.

This problem is clearly one of continuing concern. On 
March 20, 1974, the United States commenced an employment dis­
crimination class action against 349 trucking companies, and 
simultaneously entered into a Partial Consent Decree with 
seven of the defendants. United States v. Trucking Employers, 
Inc., C.A. 74-453 (D. D.C.). The government offered to enter 
into the same Decree with the remaining 342 defendants, many 
of whom subsequently agreed to become subject to the Decrees. 
The Decree requires employees to waive their rights to pursue 
a private Title VII action as a condition of receiving back 
pay in the government's action, and further provides that its
terms shall be binding "on all persons to whom the Court deter-

. . _ i, at- the time when the Decree wasmines it to be applicable. At tne
j District Court for approval,entered into and offered to

82



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frmha-:

1

: ,s as l IV  b 1 .V:-' &.

rti- si; “/s'Hij - ■



many of the defendant trucking companies were also defendants 
in private civil actions under Title VII, several of them in 
this Circuit. None of the private litigants or their counsel 
were notified of the existence or terms of the Decree, prior 
to the entry of the Decree, or of the government's offer of 
the Decree to the 342 defendants who had not adhered to it as 
of March 20, 1974. Only after a defendant adheres to the 
decree is any notice given to the affected private litigants.

The Attorney General long ago required that proposed 
antitrust consent decrees be made public at least 30 days

M /
before approval by a District Court. 28 C.F.R. § 50.1.

~ . v . n  —•?- x v 0 n i i e c i y  e x p  It-*  x i i o ^  m e  i i c c u  i . w r  o u ^ - nL L. tu i  UCiXCl-UX i\UDCl t

prior .disclosure of such proposed decrees:

14/ " (a) It is hereby established as the policy of the
Department of Justice to consent to a proposed judg­
ment in an action to prevent or restrain violations 
of the antitrust laws only after or on condition that 
an opportunity is afforded persons (natural or cor­
porate) who may be affected by such judgment and who 
are not named as parties to the action, to state 
comments, views or relevant allegations prior to the 
entry of such proposed judgment by the court.

(b) Pursuant to this policy, each proposed consent 
judgment shall be filed in court or otherwise made 
available upon request to interested persons as 
early as feasible but at least 30 days prior to 
entry by the court. Prior to entry of the judgment 
or some earlier specified date, the Department of 
Justice will receive and consider any written commen s,

83





The purpose of the new policy is to provide 
opportunities for comment or criticism from 
persons or firms who are not parties to an 
action in which a consent judgment is involved 
... by making the terms public before they 
become final ... it is our purpose to minimize 
any unforeseen adverse affect of a consent 
judgment. The 30 day period should allow com­
peting firms and other persons and agencies 
to comment and thereby to keep the Department 
and the Court fully informed of all relevant 
facts.

Department of Justice press release, June 29, 1961. This rea­
soning applies with particular force to the instant Consent 
Decrees. In an antitrust case, if the decree is inadequate, 
interested persons and firms can still enjoy all the limited 
benefits of the decree without losing their rights to pursue 
private litigation; in the instant case, since employees cannot

14/ Continued
views or relevant allegations relating to the 
proposed judgment, which the Department may, m  
its discretion, disclose to the other purties 
to the action. The Department of Justice shall 
reserve the right (1) to withdraw or withhold 
its consent to the proposed judgment if the com 
ments/views or allegations submitted disc ose 
facts or considerations which indr,cate that the
oroposed judgment is inappropriate, improper propose j y . obiect to intervention byinadequate and (2) to object government." 
any party not named as a party ny

84 -



*



enjoy all the limited benefits of the Decrees without losing 
such rights, any inadequacy of the Decrees is far more harm­
ful to them. In an antitrust case the government makes no 
effort to prevent a private litigant from obtaining additional 
relief; in the instant case the United States is obligated to 
oppose any private litigation which seeks additional relief 
to remedy inadequacies of the government decrees. In the 
employment discrimination litigation, government action usually
begins as a result of one or more complaints from aggrieved 

15/
employees. Thus, in such employment cases, unlike antitrust 
litigation, the identity and address of the private persons 
directly affected by and interested in the Decrees is already 
known to the government. There is no justification for failing 
to afford to aggrieved minority employees the same reasonable 
notice and opportunity to be heard as is already provided by 
the Department of Justice to multi-million dollar corporations.

15/ The EEOC can bring and settle an employment discrimina 
tion action under one of three circumstances. First, the 
Commission can sue on behalf of a specific employee who has 
filed a charge under section 705(b), see § 705(f)(1). In 
such a case the Commission of course knows the name of the  ̂
interested employee. Second, the Commission can intervene m  
a private pending action. See § 705(f)(1). In such a case the 
names or identity of the original parties are of course known. 
Third, the Commission may bring a "pattern or practice sui 
under section 707(a). As a practical matter, such suits are 
likely to occur, as here, only after the filing of private 
civil actions, of charges under section 706(b), or both.

85





Prior notice of proposed consent decrees would serve to

avoid the problems which continue to plague this litigation 

regarding the precise meaning of the Consent Decrees. As is 

noted supra, intervenors were and are concededly uncertain as 

to the impact of certain critical provisions. Rule 59(c), 

Federal Rules of Civil Procedure, however,' required intervenors 

to move at once to set aside the Consent Decrees. The District 

Court acknowledged that the Decrees were "somewhat open-ended" 

and that certain details had yet to be classified. Appendix, 

188a. But, since the Decrees had already been approved, the 

Court felt compelled to pass at once on the motions to set

hearing. Appendix 156a. Any decrees of the complexity of 

those in the instant case will invariably call for clarifica­

tion of provisions left inadvertently or purposely unclear by 

the parties. Such clarification is more likely to occur through 

informal discussion prior to the entry of a decree than through 

the divisive process of protracted, and possibly unnecessary, 

litigation.
The need for notice and hearing is particularly great in 

the instant case because while the Decrees provide minority 

employees with certain new remedies, they also interfere sig 

nificantly with the pre-existing rights and remedies of those

86





employees. For minority employees who need additional injunc­

tive relief, the Decrees provide a substantial obstacle in 

the form of opposition by the Department of Justice. A minority 

employee victimized by non-systemic discrimination is deprived 

of the possibility that the Commission might bring a section 

706 action on his behalf. These and other adverse conse­

quences flow from an order issued by the District Court with­

out any notice or opportunity to be heard to those so harmed. 

Due process of law requires that the federal courts shall not 

take action with such a potentially adverse affect without such 

notice and hearing. Hansberry v. Lee, 311 U.S. 31 (1940).

The cor S G l

are protected by Rule 19, Federal Rules of Civil Procedure, 

which would make a minority employee an indispensible party 

if the decrees "may ... as a practical matter impair or impede 

his ability to protect his interest" in obtaining complete 

relief from racial discrimination. Rule 23 for similar reasons 

requires notice to class members in certain types of class 

actions. Rule 23(c)(2), Federal Rules of Civil Procedure.

The procedures leading to the signing of the Consent 

Decrees by the District Court raise difficult questions under 

Rule 19, Rule 23, and the Due Process Clause. These recurring 

problems are most appropriately resolved for future cases by

87





an exercise of this Court's supervisory powers. The Courts 

of Appeals have inherent supervisory authority over the admin­

istration of justice in their respective circuits. Government 

of the Virgin Islands v, Boddle, 427 F.2d 532, 534 (3rd Cir.

1970) ; United States v. Barber, 442 F.2d 517, 528 (3rd Cir.

1971) ; c.f., McNabb v. United States, 318 U.S. 332, 341 (1942). 

Exercise of such supervisory authority is particularly appro­

priate where it renders unnecessary a decision on a constitu­

tional question. Ashwander v. Tennessee Valley Authority,

297 U.S. 288, 345-48 (1936); United States v. Schiavo, No.
w

73-1855 (3rd Cir.) (opinion dated August 8, 1974) 

exercise of sucn supervisory authority

In the

i. Court should rpouire

that whenever a consent decree is presented by the United 

States in litigation of public importance, the District Court 

shall not approve the decree unless, at least 30 days prior to 

such approval, notice of the proposed decree shall have been 

given to such persons interested in the subject matter of the 

decree, and in such manner, as shall appear reasonable under

16/ in Schiavo, the District Court, without a prior he,.ring 
ordered the Philadelphia Inquirer, on pain of contempt, not
print certain fact= regarding a pending crimina 't ftmend_
annpni +-hp Third Circuit declined uo xe&ux
men truest ion raised, concluding instead, -pursuant to o « _
supervisory powers" that the Distric^ our had nQt
durally deficient because, in-- . --- ' heard
afforded a reasonable notice and opportunity to be heard.
Slip opinion, p. 11*

- 88



*



the circumstances.

CONCLUSION

The history of these Decrees to date reveals all too

clearly the potential for abuse latent in their ambiguous

provisions. All the parties have repeatedly assured the

District Court that the Decrees would not affect pending

private litigation, as assumption expressly aired in the
18/

Court's opinion of July 17, 1974. But in Dickerson 

v. United States Steel, No. 73-1292 (E.D. Pa.), United 

States Steel has urged that the Decrees have "mooted" any

12/

17/ This would normally require that such notice be given 
to parties to pending litigation or administrative complaints 
regarding the subject matter of the decree. Where the 
affected persons cannot be identified or are so numerous 
as to make individual notice unreasonable, other appropriate 
forms of notification may be fashioned by the District Court. 
In the instant case, for example, that notice might have been 
•made through the Union newspaper, to the Union civil rights 
committee at each plant, to organizations of minority steel­
workers, or to civil rights groups.
18/ " [T]his Court does not consider that the consent decree
entered herein in any way bind either the private plaintiffs 
involved in other pending litigation or the courts in which 
such litigation is pending. This Court does not assume that 
there will be a lack of full and fair consideration by other 
courts of the issues before them, or a failure to grant such 
relief as is warranted." Appendix, 204a-205a.

89





class action, and in Rodgers v. United Steel the company
have urged that all discovery should be halted for at least six

20/months because of the Decrees. In the District Court the
21/  22/

government and the union assured the Court that minority
workers would be informed of any pending private cases involving
their plants, but United States Steel vigorously opposed providing

23/
just such infirmation in the Dickerson case. It is imperatrve that,
regardless of whether this Court approves the Consent Decrees, the
Court should delineate with precision the meaning of the provisions 
whose exact meaning was left unclear by the District Court.

1 2 /

19/ "The only conceivable basis for a class action would be 
a broad-based attack on, for example, seniority rules under 
23(b)(2) —  i.e., admitted action by a defendant affecting an 
entire class. Assuming arguendo that prior seniority procedures 
had any discriminatory impact, these issues as well as any right to 
bring a 23(b) (2) class action are now made moot by _ the Consent 
Decrees" Memorandum of U.S. Steel, p. 50. The brief stressed the _ 
duty of the government under Section C to oppose any additional relie.

Nos. 74-1815-1816 (3dCir.)j
No. 71-793 (W.D. Pa.)

21/ "For its part, the Government is amenable to communicating with 
claimants in other suits through the appropriate court or counsel . 
Memorandum for Plaintiffs, p. 22.
22/ "At those plants where Title VII actions are already on file, 

Steelworkers, p. 22.

„ /  ,.rwle are unwilling to agree, as you request, that you or any 
2 2 /  [b]e are unwiii y Dickerson case are entitled to
other counsel for P } a i n ^ f f s  ^nt^ t reference is to be made to the be named m  any such notice or th seek fco
existence of the .Deckerson suit ^  D . wo)f, May 7,
represent . Letter of Henty 1.
1974, pp. 102.

90



■

■■

- • f  ■? s  ■iv. • ’
.

■

i . h>Xf>mms* ^

. . ... . „■■

' .. . , u  , J ::

' , „ :  '  ‘ % - f,



For the above reasons the Court should reverse the 
decisions of the District Court of May 20, 1974 and June 7, 
1974, and remand this case with instructions to set aside the 
Consent Decrees as unlawful.

Respectfully submitted,

JACK GREENBERG 
JAMES M. NABRIT, III 
BARRY L. GOLDSTEIN 
CHARLES STEPHEN RALSTON 
ERIC SCHNAPPER 
MORRIS J. BALLER10 Columbus Circle 

Suite 2030
New York, New York 10019

OSCAR W. ADAMS.
JAMES K. BAKER 
U.W. CLEMON 
CARYL P. PRIVETT2121 Building - Suite 1600 

2121 Eighth Avenue North 
Birmingham, Alabama. 35203

GERALD SMITH 
KENNETH JOHNSON 
NORRIS RANSEY711 St. Paul Street 

Baltimore, Maryland 21201
BERNARD D. MARCUS 
JOHN B. LEETE415 Oliver Buildxng 

Pittsburgh, Pennsylvania 15222

- 91



'



GABRIELLE K. MCDONALD 
MARK T. MCDONALD

1834 Southmore Boulevard 
Houston, Texas 77004

NATHANIEL R. JONES 
WILLIAM D. WELLS 

N.A.A.C.P.
1790 Broadway-
New York, New York 10019

J. RICHMOND PEARSON
1630 Fourth Avenue, North 
Birmingham, Alabama 35203

ATTORNEYS FOR APPELLANTS-INTERVENORS

92 -





CERTIFICATE OF SERVICE

I hereby certify that on this 14th day of September, 1974,
two copies each of Intervenors-Appellants1 Brief and Appendix
were served on counsel for the parties by United States mail,
air mail, special delivery, postage prepaid, addressed to:

Michael Gottesman, Esq.
Brehoff, Cushman, Gottesman & Cohen 
1000 Connecticut Avenue 
Washington, D. C. 20036
James R. Forman, Jr., Esq.
Thomas, Taliaferro, Forman, Burr 
& Murray1600 Bank for Savings Building 

Birmingham, Alabama 35203
Marion Halley, Esq.Equal Employment Opportunity commission 
Washington, D. C. 20506









IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

No. 74 - 2037

UNITED JEWISH ORGANIZATIONS OF
WILLIAMSBURGH, INC., et al.,

Plaintiffs-Appellants,
v.

MALCOLM WILSON, et al. ,
Defendants-Appellees,

N.A.A.C.P., et al. ,
Intervenors-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 
EASTERN DISTRICT OF NEW YORK

BRIEF FOR INTERVENORS-APPELLEES, N.A.A.C.P., .ETC., ET AL.

JACK GREENBERG 
ERIC SCHNAPPER 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Counsel for Intervenors- 
Appellees





Preliminary Statement .............
Questions Presented .................
Statute Involved ....................
Statement of the Case ...............

TABLE OF CONTENTS Page
1
2
2
3

ARGUMENT
I. Appellants Lack Standing to Maintain This Action

(1) Private Plaintiffs Lack Standing to Obtain
Judicial Review Directly or Indirectly of 
A Decision of the Attorney General Under 
Section 5 of the Voting Rights Act .........

(2) Plaintiffs Lack Standing Because There Is No
Necessary Connection Between The Alleged 
Injury to Plaintiffs And the Alleged Constitutional Defect in the 1974 Lines....

II. Chapters 588-591, In So Far As They Alter Senate 
and Assembly Districts in Kings County, Are 
Constitutional ...................................

CONCLUSION 33





TABLE OF AUTHORITIES

CASES
Pa^e

Allen v. Board of Elections, 393 U.S. 544 (1968) .... 8
Associated General Contractors v. Altshuler, 490

F. 2d 9 (1st Cir. 1973) ..........................  27
Beer v. United States, No. 1495^73 (D.D.C.) ........ 7,24,29
Brooks v. Beto, 336 F.2d 1 (5th Cir. 1966) .........  27
Carmical v. Craven, 457 F.2d 582 (9th Cir. 1971) .... 30
City of Petersburg v. United States, 354 F. Supp.

1021 (D.D.C. 1972) ..............................  7
Edelman v. Jordan, 39 L.Ed. 2d-622 (1974) .......... 11
Flast v. Cohen, 392 U.S. 83 (1968) ................• 18
Gautreaux v. Romney, 448 F.2d 731 (7th Cir. 1971) ... 2/
Georgia v. United States, 411 U.S. 526 (1973) ...... 6,28
Griffiths v. United States,'Civil Action No. 74-648

(D.D.C.) .......... ..............................  10'11
Griggs v. Duke Power Co., 401 U.S. 424 (1971) ......
Heyward v. Public Housing Administration,

238 F . 2d 689 (5th Cir. 1956) ..................... 11

Hobson v. Hansen, 269 F. Supp. 401
(D.D.C. 1967) ...................................

Kennedy Park Homes Ass’n v. City of Lackawanna, ^
436 F.2d 108 (2d Cir. 1970) ......................

Linda R.S. v. Richard D., 410 U.S. 614 (1973) ......
N.A.A.C.P. V. New York City Board of Elections,

72 Civ. 1460 (S.D.N.Y.) ..........................
New York v. United States, No. 2419-71 (D.D.C.) ....  3,12





Table of Authorities (continued)
Page

North Carolina Board of Education v. Swann,
402 U.S. 43 (1973) .............................  26

Norwalk CORE v. Norwalk Redevelopment Agency,
395 F. 2d 920 (2d Cir. 1968) ....................  26,30

Otero v. New York City Housing Authority,
484 F. 2d 1122 (2d Cir. 1973) .................... 26

Penn v. Stumpf, 308 F.Supp. 1238 (N.D.Cal. 1970) ... 29
Porcelli v. Titus, 431 F.2d 1254 (3rd'Cir. 1970) ... 27
Rosario v. Rockefeller, 410 U.S.- 752 (1973) ......  32
Rowe v. General Motors Corporation,

457 F. 2d 348 (5th Cir. 1972) .................... 29
Swann v. Charlotte-Meckleriburg Board of Education, 
402 U.S. 1 (1971) ........................•....

Wanner v. County School Board of Arlington County, 
452 (4th Cir. 1966) ..........................

White v. Regester, 37 L. Ed. 2d 314 (1973) ......
Williams v. The Matthews Company,
(8th Cir. 1974) ................................

STATUTES

42 U.S.C. § 1973b ...............
42 U.S.C. § 1973c ................
Chapters 588-591, N.Y. Laws of 1974

___ 3
2,3,6,7,8,28

Passim





IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

No. 74 - 2037

UNITED JEWISH ORGANIZATIONS OF 
WILLIAMSBURGH, INC., et al. ,

Plaintiffs-Appellants,
v.

MALCOLM WILSON, et al. ,
Defendants-Appellees,

N.A.A.C.P., et al. ,
Intervenors-Appellees.

BRIEF FOR INTERVENORS—  APPELLEES

Preliminary Statement

This is an appeal from an order and decision of District 
Judge Walter Bruchhausen of the Eastern District of New York 
dismissing plaintiffs' complaint for failure to state a claim 
upon which relief could be granted. That decision is not yet 
reported.

The intervenors-Appellees , N.A.A.C.P. etc., et al., were





permitted to intervene in the District Court as party defendants 
by order dated July 25, 1974.

Questions Presented

1. Do plaintiffs-appellants have standing to challenge 
the validity of Chapters 588-591, New York -Laws of 1974, insofar 
as those provisions altered the Senate and Assembly lines in 
Kings County.

2. Are Chapters 588-591, New York Laws of 1974, insofar 
as those provisions altered the Senate and Assembly lines in 
Kings County, violative of the Fourteenth Amendment.

Statute Involved

Section 5 of the Voting Rights Act of 1964, 42 U.S.C.
§1973c, provides in pertinent part:

Whenever . . .  a State or political .subdivision with respect to which the prohibi 
tions set forth in section 1973b(a) of this tx^le 
based upon determinations made under the second 
sentence of section 1973b(b) of this title are 
in effect shall enact or seek to administer any 
votina oualification or prerequisite to voting, 
o f  s S n d a r d *  practice, or procedure with respect 
to voting different from that in force or effect 
on November 1, 1968, such State or ^division
Si^rict1CourtaforCthenDistrict of Columbia for a 
declaratory judgment that such
requisite, standard, P” c Jn ' £ave the effectnot have the purpose and will nor n 
of denying or abridging the r r ^ t o  vot ^
account or race or no person shall be
the court ente^  ® vote failure to comply
£i?hesuchequalification, prerequisite, standard.

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-

. : - r



practice, or procedure: Provided, That such 
qualification, prerequisite, standard, practice, 
or procedure may be enforced without such pre- 
ceeding if the qualification, prerequisite, 
standard, practice, or procedure has been sub­
mitted by the chief legal officer or other 
appropriate official of such State or subdivision 
to the Attorney General and the Attorney General 
has not interposed an objection within sixty days 
after such submission, except that neither the 
Attorney General's failure to object nor a 
declaratory judgment entered under this section 
shall bar a subsequent _action to enjoin enforce­
ment of such qualification, prerequisite, standard, 
practice, or procedure. Any action under this 
section shall be heard and determined by a court 
of three judges in accordance with the provisions 
of section 2284 of Title 28 and any appeal shall 
lie to the Supreme Court.

Statement of the Case

In January of 1972, the State of New York enacted legis­
lation altering the Senate and Assembly lines in Kings County 
in view of changes in population between the 1960 and 1970 
census. Chapter 11, Laws of New York, 1972. On January 5,
1974, as a result of litigation maintained by the Intervenors 
N.A.A.C.P., etc., et al., the United States District Court for 
the District of Columbia placed Kings, Bronx, and New York 
Counties under the coverage of the federal Voting Rights Act.

42 U.S.C. § 1973b. See I h ^ Y o ^  No- 2419-71
(D.D.C.). Because of this decision. New York was required by the 
Voting Rights Act to obtain federal approval of the 1972 dis­
trict lines. See 42 U.S.C. §1973c. Appendix, V. I., Tab 1. 
New York duly sought such approval from the Attorney General

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.

' :

■



of the United States.
On April 1, 1974, Assistant Attorney General Stanley 

Pottinger disapproved the Senate and Assembly lines in Kings 
County on the ground that they discriminated on the basis of 
race. Mr. Pottinger's decision that the 1972 lines were discri­
minatory automatically rendered use of those lines illegal. The 
sole procedure permitted by the Voting Rights Act to review Mr. 
Pottinger's decision was an action by the United States District 
Court for the District of Columbia. The Attorney General of 
New York, Louis J. Lefkowitz, after consultation with the 
Governor and legislative leaders, declined to seek such 
appellate review.

In the wake of Mr. Pottinger's decision the N.A.A.C.P. 
sought appropriate relief from Judges Steward, Bauman, and 
Hays, in N.A.A.C.P. v. New York City Board of Elections, 12 

Civ. 1460 (S.D.N.Y.), to compel the state to enact new district 
lines in compliance with Mr. Pottinger's order. The Court in 
the N.A.A.C.P. action, in comments from the bench, made it 
clear that they would forbid any attempt to use the discrimina­
tory 1972 lines, and would invalidate any future election held 
on those lines. Under threat of a court order to ao so m  

N.A.A.C.P, v. New York Citv Board of Elections, the state 
legislature on May 30, 1974, enacted new Senate and Assembly
lines in an attempt to remove the discriminatory aspects of the
, i ur pottinger's decision, chapters1972 lines and to comply with Mr. Forviuye

, * iQ74 Assistant Attorney General588-591, New York laws of 1974. a s s i s t

-4-





Pottinger approved the new lines on July 1, 1974. Appendix, 
V. II, Tab 16.

This action is not about whether the number of majority 
non-white district in Kings County should or could be "maximized". 
The problem with which Assistant Attorney General Pottinger and 
the New York Legislature were concerned was that the original 
1972 lines had the effect of minimizing the number of districts 
with a non-white majority, and thus minimizing the number of 
non-whites who could be or were elected to the Senate or 
Assembly. Chapters 588-591 were enacted specifically to elimi­
nate this discriminatory effect of the old lines, and to assure 
non-white voters an equal opportunity to elect candidates of 
their choice. The provisions under attack did not create the 
largest possible number of districts with non-white majorities; 
they merely raised that number to a level m  accord with the 
total non-white population of the county.

The substantive issues raised by this action are whether 
there was substantial evidence to support Mr. Pottinger's 
decision that the 1972 lines were discriminatory, and whether 
the Fourteenth Amendment forbids state action to remedy racial 
discrimination. The threshold jurisdictional question is 
whether the plaintiffs-appellants have standing to bring this

action.

-5-



I



I. Appellants Lack Standing To Maintain This Action

(1) Private Plaintiffs Lack Standing To Obtain 
Judicial Review Directly Or Indirectly Of 
A Decision Of The Attorney General Under 
Section 5 Of The Voting Rights Act

The 1972 district lines were submitted by New York to the 
United States Attorney General for his approval under Section 5 
of the Voting Rights Act. Section 5 provides in pertinent part 
that no new election law enacted after November 1, 1968, may be 
enforced in Kings County unless New York first obtains federal 
approval of that new law. Redistricting laws, such as Chapters 
588-591, require such federal approval. Georgia v. United_S.tates , 
411 U.S. 526 (1973). Federal approval may be ob'-ained in either 
of two ways: (1) New York may submit the law to the Attorney
General of the United States, and the law is deemed approved if 
the Attorney General does not object to the law within 60 days 
of the submission, (2) New York may seek a declaratory judgment 
from a three judge federal court in the District of Columbia. 
Whether approval is sought from the Attorney General or the
United States District Court for the District of Columbia. the burden 

of proof is on New York to establish that the new law does not have 
the effect of discriminating on the basis of race.

It was contemplated by Congress, and has in fact been the 

practice, that states covered by the voting Rights Act first 
seek approval of new laws from the Attorney General. If the 
Attorney General disapproves the new law, the state may seek

-6-



■



approval instead from the District Court for the District of 
Columbia. The latter proceeding operates as an appeal from the 
Attorney General's decision, and the proceeding is a de novo
hearing. States 'whose laws have been rejected by the Attorney 
General rarely seek judicial review of that decision. In the 
9 years the Voting Rights Act has been in effect, the District
Court for the District of Columbia has never overturned a
decision of the Attorney General disapproving a state law under 
Section 5. See e.g., Beer v. United States, No. 1495-73 (D.D.C.)
(Opinion dated April 5, 1974); Cityof Petersburg v. United 
States, 354 F. Supp. 1021 (D.D.C. 1972), aff'd sub nom. Diamond 
v. United States, 412 U.S. 934- (1973).

When the United States Attorney General disapproves a 
proposed law, the Voting Rights Act confers upon New York public 
officials exclusive responsibility for deciding whether to seek 
judicial review of that decision. The pertinent portion of

section 5 provides
Whenever a State or political subdivision

shall enact or seek to administer any voting 
oualification or prerequisite to voting, or 
Standard uractice, or procedure with respect to 
voting1" different0from that in force or effect on 
S o v e S L ?  X, 1968, s u g L S t a t e ^ b d r.y.| s ^  may 
institute an action in the Unite States District 
Court for the District of Columbia for a declar 
tor? judgment that such qualification prerequisite, 
standard, y-tice^procedure^oes not^hav^ ^
abridging"th^right to vote on account of race or 
color,

-̂Kj-a-tned the new law may not be en-and until such judgment is
forced. 42 U.S.C. §1973c (Emphasis added).

-7-



.

■

X  X .  X -

p i  i - X u :

• • -• * r i - ' .  i t '  i d



There are several reasons why section 5 gives to state 
officials exclusive responsibility for deciding whether to 
seek review of the Attorney General's decision. The dispute 
over whether the new law is discriminatory is fundamentally a 
dispute between the state, which wants to enforce the new law, 
and the Attorney General of the United States. It is only 
sensible that the state have control over such litigation, 
including over the decision whether to seek judicial review at 
all. The decision of a state whether to seek judicial review 
must reflect a variety of state interests, including weighing 
the likelihood of success against the problems of continued 
uncertainty as to the new law's validity. Above all, the un­
precedented procedures under section 5 necessarily raise 
difficult problems of federal-state relations and Congress 
understandably concluded that such problems ought to be resolved 
directly, and exclusively, between the two sovereigns. See 
Allen v. Board of Elections, 393 U.S. 544, 562 (1968).

in the instant case, after Assistant Attorney General 
Pottinger disapproved the 1972 lines, the Attorney General of 
New York conferred with the Governor and legislative leaders. 
They decided, in view of the shortage of time until the next 
election, and the uncertain prospects of an appeal, not to seek 
judicial review of Mr. Pottinger's decision. See Interim 
Report of the Joint Committee on Reapportionment, pp. 2-3.
The plaintiffs commenced this action because they disag

-8-



.



with the manner in which Attorney General Lefkowitz decided
to conduct litigation on behalf of New York, and disagree in
particular with his decision not to appeal Mr. Pottinger's
decision. But the conduct of litigation by and for the
sovereign state of New York cannot be controlled by any
private attorney or citizen who happens to be interested in
that litigation. There is and can be only one Attorney General of the
State of New York, and only one person can supervise the State's
ligigation. Plaintiffs do not question Mr. Lefkowitz's good
faith or competence, in handling this litigation or in declining
to appeal further the Pottinger decision. Plaintiffs merely
assert that, had any of them been Attorney General, they would
have decided the matter differently. But such differences of
opinion cannot justify stripping Attorney General Lefkowitz of 
his responsibilities as a state official, and turning his job, 
in part or whole, over to plaintiffs or their counsel. Plaintiffs, 
who are solely concerned with the effect of redistricting on 
their own community, have very different interests than Attorney 
General Lefkowitz, who must consider the interests of the state 
as a whole, including the disruptive effects of further appeals 
on the verge of a general election. It is Attorney General 
Lefkowitz, not private citizens, who must assess what course 
of conduct is in the best interests of the state of New York.

. . arisen before in this very case. InThis question has arisen
Brooklyn politicians disagreeing late April of 1974, several BrooKiy E

1 r^fkowitz's decision to comply witr. the with Attorney General Lefkowit

-9-





Pottinger decision, attempted to bring their own lawsuit to over­
turn the Pottinger order. Griffiths v. United States, Civil 
Action No. 74-648 (D.D.C.). The District Court for the District 
of Columbia dismissed the complaint sua sponte

The plaintiffs are apparently attempting to 
secure a review of the Attorney General's 
findings that certain plans submitted 
pursuant to the Voting Rights Act of 1965 
by the State of New York have "the purpose 
or effect of abridging'the right to vote be­
cause of race or color." (Letter of April 1,
1974, from Stanley Pottinger, Assistant Attorney 
General). Under the Voting Rights Act, 42 U.S.C.
§1973c, a request for review of the Attorney 
General's findings may be made only by the "State 
or political subdivision" covered by the Act.
The" plaintiffs, as individual Assemblymen from 
Kings County, lack standing under the Act to 
bring this action.

Opinion dated May 3, 1974 (Green, J.). The United States Court 
of Appeals for the District of Columbia affirmed the dismissal.

This action, like Griffiths, seek to do what under the 

law only Attorney General Lefkowitz could seek - obtain 
judicial review of Mr. Pottinger's decision on behalf of a 
private litigant. The Complaint seeks a declaratory judgment 
that Mr. Pottinger’s decision was erroneous. Complaint, p. 11. 
Plaintiffs do not deny that, if Mr. Pottinger's decision was 
correct, the 1974 district lines would be not only constitutional 
but necessary. Manifestly, if private parties cannot obtain 
judicial review of the Pottinger decision by a suit against the 
United States in the District of Colu^ia, they cannot obtain 
such review by a suit against the United States in the Eastern 
District of New York. *nd if such direct revi^ is unavailable,

-10-





plaintiffs cannot obtain judicial review indirectly by seeking 
to enjoin New York from complying with the Pottinger ruling 
on the alleged ground that the Pottinger decision was erroneous.

The Supreme Court has repeatedly rebuffed attempts such 
as this to circumvent the jurisdictional limits of the Federal 
courts. In Edelman v, Jordan, 39 L. Ed. 2d 622 (1974), the 
plaintiffs wanted to sue the state of Ohio for retroactive 
welfare benefits, an action precluded by the Eleventh Amendment,
To escape that limitation the plaintiffs cast their action as 
one against individual state officials for "equitable restitution". 
The Supreme Court disallowed this aspect of the action, holding 
that the relief sought against the officials was in practical 
effect indistinguishable" from the sort of direct suit against 
the state forbidden by the Eleventh Amendment. 39 L.Ed. 2d

at 676.
The instant action is even more inimical to the Voting 

Rights Act than Griffiths itself. One of the key changes in 
voting rights litigation sought by Congress in 1964 was to alter 
the judicial forum in which such cases were heard, and to confine 
all such cases to a three judge panel for the United States 
District Court for the District of Columbia. That change reflected 
a congressional concern that individual federal and state judges 
in the south had proved unwilling to protect the rights of non­
white voters. ptaintiffs-appeHants assert the right,not only

Doftinaer's decision, but to do so to attack collaterally Mr. Po 9
, . __ Phe ricrhts of non—whitesin the state where Mr. Pottinge

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.

'



were being violated. If an action such as this, purporting to 
attack the constitutionality of Chapter 588-591, was maintain­
able in the Eastern District of New York, it could presumably 
have been commenced as easily in state courts. In the wake of 
the judicial inaction and hostility that preceded the enactment 
of the Voting Rights Act, it is inconceivable that Congress 
intended to permit a decision such as this by the United States 
Department of Justice to be reviewable by a state or federal 
judge in Mississippi or Alabama. No different rule may be 
applied here.

Such a rule does not preclude appellants from obtaining 
consideration of their legal arguments. When the original 1972 
lines were under consideration by Assistant Attorney General 
Pottinger, appellants, like the N.A.A.C.P. and all other interested 
groups and individuals, had ample opportunity to argue their posi­
tion to the Department of Justice. Later, when the 1974 
lines attacked herein were under consideration by Mr. Pottinger, 
appellants again had such an opportunity and in fact urged the 
Assistant Attorney General to disapprove those new lines. If 
appellants believeKings County should not be subject 
Voting Rights Act at all, they are free to file an amicus brief
to that effect in New York v. United^tates, now pending on

. j___ cnnrpmp rnurt. But maintainappeal before the United States S p
the instant action they cannot, for it is the wrong remedy 
before the wrong forum commenced by the wrong plaintffs. Since

-12-





Chapters 588-591 are undeniably constitutional if the 1972 lines 
which the/ replaced were discriminatory, and since the Assistant 
Attorney General's determination that the 1972 lines discriminated 
on the basis of race is not reviewable in this section, the 
complaint fails to state a claim on which relief could be granted.

(2) Plaintiffs Lack Standing Because There Is
No Necessary Connection Between The Alleged 
Injury to Plaintiffs And The Alleged 
Constitutional Defect in the 1974 Lines

The purported interest which the plaintiffs-appellants 
seek to protect by this action is in having the entire Hassidic 
community included within the same Senate and Assembly district.
The Complaint stresses that the members of the Hassidic Community 
are "closely knit", have close cultural and religious ties, and 
have for years been "recognized as a single community" and 
placed entirely in a single legislative district. Complaint, 
paragraphs 7, 8, 10. Being placed in a single district, plaintiffs
allege, encourages participation in the democratic process and 
increases their political influence, complaint, paragraph 9.
It is not denied that the Hassidic community is located entirely 
within the same congressional, City Council, and Community 
School Board district, but plaintiffs claim this is not sufficient.
The 1974 district lines. Chapters 588-591, are said to harm

u -U the Hassidic community betweenplaintiffs' interest by dividing tne n
two Assembly districts and two Senate districts. Complaint, 
paragraphs 24-25. This division, it is claimed, diluted the 
value of the plaintiffs' votes. Complaint, paragraph 26.

-13-





Plaintiffs' witnesses reiterated that they were aggrieved 
solely because the Hassidic community had been divided, and 
disclaimed any objection to being in a district which happened 
to have a non-white majority.

Q. (Mr. Schnapper) I believe you testified in response
to Mr. Lewin's question that you 
did not have any objection or did 
any of your organizations which you 
remember to being in a community 
which happened to have a non-white 
majority.

A. (Rabbi Friedman) I testified we are right now in adistrict which has a non-white 
majority and we do not object to 
those lines.

0 What you do object to is being
split, between districts?

A Basically we object to being
split, correct.
 ̂ jf yoU were in a district

Q* which was 75 or 70 percent non-white
you would not object so long as you 
WQxe in the same district all 
together?
If we were Kept together without 

* cutting us up we wouldn't play
the percentage game.

rranscript, pp. 41-42
(Mr. Schnapper)Q.

A.
Q.

I take it that what you 
object to - that the harm that 
vou feel the Hassidic community 
has suffered by these new lines, 
it has occurred because the 
Hassidic community is split m  
half; is that correct?

(Rabbi Stauber) Right.
It’s not because part or all of the 
Hassidic Community may be in a 
district that has a non-white 
majority? You don't object to

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.
- ■■ - • . - - - ; . - ..V ■ ' - . : • .

■»



being in a district of non-white majority?
No, we don't.A.

Transcript, pp. 104-105.
Q. (Mr. Schnapper) Mr. Lefkowitz, I take it that the

harm that will occur in terms of 
your political aspirations is harm 
caused by these lines because the 
Williamsburgh Community has been 
split in half;'is that correct?

A. (Mr. Lefkowitz) That is correct.
Q. If the community were all in one

district, even though it might 
have a majority of Blacks, that 
would be okay with you?

A. No objection at all.
Transcript, p. 112.

Plaintiffs lack standing to maintain this action because,
even if they succeed in invalidating the 19/4 lines, that will not 
vindicate the interests which they here assert. Plaintiffs urge 
that, in enacting the 1972 lines, the legislature improperly 
considered the racial composition of districts. Complaint, 
paragraphs 12-25. No connection, however, is apparent between 
the use of such criterion and the division of the Hassidic commu­
nity of which plaintiffs complain. The same criterion were used 
in redrawing the 1974 Congressional lines; these lines, how­
ever, place the entire Hassidic community in a single congr 
sional district, and plaintiffs assert no grievance with th 
It would clearly have been possible to create Senate and Assembly 
districts which located the Hassidic community in a single 
district and still satisfied the allegedly unlawful criterion.

-15-





Mr. Scolaro, the Executive Director of the Joint Legislative 
Committee on Reapportionment, testified that redistricting plans 
could have been framed which satisfied Mr. Pottinger's ruling, 
as well as the alleged 65% standard, and still kept the Hassidic
community entirely within a single district. The Hassidic
community is split by the 1974 lines between the 57th and 56th 
Assembly Districts.

Q. (Mr. Schnapper) Now, Mr. Scolaro, you testified
with regard to the problem of the 
Hassidic community in the 57th 
Assembly district that you had 
concluded that it would not be 
possible' to put all the Hassidic 
community in the 57th Assembly 
district without violating the_ 
Department of Justice orders; is 
that correct, sir?

A.
Q.

A.

Q.

That is correct.
Now, did you consider putting 
the entire Hassidic community 
in the 56th Assembly district?
That was one variable that we came 
up with, yes, and that would require 
a moving of a portion of the Hassidic 
community which is presently m  the 
57th district totally into the 56th 
district, and that would have resulted, to the best of my knowledge, 
in two districts, both of whcih 
would be over 65 percent non-white, 
and the 56th district with the Hassidic community in total in that 
community would probably be close 

7 7  nprrpnt non-white . . .+- 7 £
But Mr. Scolaro, in hindsight, it 
would have been possible under that 
scheme to both comply with the 
Tustice Department 65 percent 
standard, if that was their standard,

-16-





and keep the Hassidic commu­
nity together.

A. Yes . . .
Transcript, pp. 172-173. Mr. Scolaro testified similarly re­
garding the Senate lines.

Q. . . .  Would it be, would it
have been or -would it be possible 
to redraw the Senate lines so 
that the entire Hassidic community 
was within a single Senatorial 
district and still comply with 
the 65 percent requirement?

A. You are dealing with such a large
number in the Senatorial district, 
304,000 people, that I am sure 
there would be a way; to the best 
of my recollection, there would 
be a way of drawing Senatorial 
lines if you redraw the other lines 
and you could probably affect com­
pliance.

Transcript, p. 175.
Scolaro's testimony was confirmed by the alterna­

tive districting plans which were submitted to the 
District court. Plaintiffs submitted a proposed altera­
tion of the Senate lines which would place the entire Hassiaic 
community in the 25th Senate district. Plaintiffs' plan did 
not, however, significantly alter the total ethnic composi­
tion of the two Senate districts involved. The total non­
white population of the 23rd Senate district is actually 
increased by 139, and it would remain 71.1% non-white. See 
Affidavit of James Rocap, Appendix, V. II, Tab 10. Similarly 
interveners submitted a proposed alteration of the Assembly 
lines which would place the entire Hassidic community in the 
56th Assembly district. Under this hypothetical plan both



•

.

. - . te  • ewV'i r it,a  - " S ' ^  :



the 56th and 57th Assembly districts would remain well

over 70% non-white. See Affidavitof Eric Schnapper,
Appendix, V.II, Tab 14. In sum, it would have been 
entirely possible to comply with Mr. Pottinger's ruling 
and still avoid dividing the Hassidic community between 
two or more districts.

Similarly, if the legislature were now directed 
to prepare new lines without considering the racial com­
position of the districts, there is no guarantee that 
under the new lines the Hassidic community would not be 
divided among two, three or more Senate or Assembly 
districts. See Transcript, p. 175. On the contrary, it 
is entirely possible that under a new set of district 
lines the alleged division of plaintiffs community would 
be as bad or worse. plaintiffs do not, of course, claim 
that in creating legislative districts the state is consti­
tutionally required to discriminate in favor of Hassidic 
Jews, at the expense of Catholics, Italians, or non-believers 
or in favor of whites at the expense of Blacks and Puerto

Ricans .
The Supreme Court has long required that, to 

establish standing, there must be directed and necessary 
connection between the illegality challenged and the right

allegedly impaired. As the Court reiterated in Flast v 

Cohen, 392 U.S. 83, (1968), a plaintiff must show
a logical nexus between the status 
asserted and the ^ u i r L s  into
adjudicated. • • , .r... assertedthe nexus *etween the | « t u p r e s e n t s  
by the Utigaht and the or £ aare essential to assure rn





proper and appropriate party to invoke 
federal judicial power.

392 U.S. at 102.
This principle was recently reiterated by the 

Supreme Court in Linda R.S. v. Richard D ., 410 U.S. 614 
(1973). In that case the plaintiff was an unwed mother 
aggrieved because the father of her child had failed to 
pay any child support. State 'law made it a crime for the 
father of a legitimate child to refuse support, but did 

not make criminal the same refusal by the father of an 

illegitimate child. The mother sued to compel prosecu­

tion of the father of her child, claiming that the dis­

tinction between legitimate and illegitimate children 
was unconstitutional. The District Court dismissed the 

* action for lack of standing and the Supreme Court affirmed
(A]ppellant has made no showing that 
her failure to secure support pay­
ments results from the non-enforcement 
as to her child, of [the state criminal 
law] . . . [I]f appellant were granted
the requested relief, it would result 
only in the jailing of the child's father.
The prospect that prosecution will, at 
least in the future, result in payment 
of support can, at best be termed only 
speculative. Certainly the "direct" 
relationship between the alleged injury 
and the claim sought to be adjudicated, 
which previous decisions of this Court 
suggest is a prerequisite of standing, 
is absent in this case.

410 U.S. at 618.
The instant case is indistinguishable from 

Linda R.S. Although Mr. Pottinger's order prompted 
the legislature to enact the 1974 lines, there is no

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showing that compliance with that order or the allegedly 
unconstitutional criterion required a division of the 
Hassidic community. On the contrary, the legislature, 
could easily have complied with that order and used 
that criterionwithout dividing the Hassidic area among 
several districts. Similarly, even if plaintiffs' legal 
claims were upheld, that would not prevent equal or greater 
fragmentation of the Hassidic community.

Since there is not the necessary connection between 
the alleged illegality of the 1974 lines and the injury 
which those lines have allegedly inflicted on plaintiffs, 
plaintiffs lack standing to challenge the constitutionality 
or lawfulness of the 1974 lines.

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II. Chapters 588-591, In So Far As They Alter Senate 
and Assembly Districts in Kings County, Are 
Constitutional ___________________  _________

Plaintiffs' Complaint relies primarily on the fact, 

which is not disputed, that in drawing the Senate and Assembly 

lines contained in Chapters 588-591, the legislature took into 

consideration the racial composition of the districts. 

Plaintiffs urge that, in general, it is impermissible to take 

into account such racial considerations. In the instant case, 

however, the previous district lines, enacted in 1972, had 

been held by the Attorney General of the United States, under 

the Voting Rights Act, to discriminate on the basis of race.

The responsibility of the legislature which enacted Chapters 

588-591 was to adopt changes which eliminate the discriminatory 
effect of the 1972 lines. Under such circumstances it was 

necessary as a practical matter, and mandatory as a matter of 

law, that the legislature consider as it did the racial 

composition of the new districts.
Chapters 588-591 were enacted as a result of the decision 

of Assistant Attorney General Pottinger on April 1, 1974, 
disapproving the Senate and Assembly lines in Kings County 

originally enacted in 1972. Mr. Pottinger's decision was set 

forth in a brief letter, which is annexed to the Complaint 

as Exhibit VI, Appendix V.I, Tab 1. Under the Voting Rights

-21-





Act Mr. Pottinger was required to disapprove the 1972 
lines if either their purpose or their effect was to 
discriminate on the basis of race, the burden of proof 
being on the State of New York. Mr. Pottinger concluded 
that the 1972 lines had such a discriminatory effect, 
and did not reach the question of whether they were 
enacted with a discriminatory purpose.

Mr. Pottinger1s decision was based on an 
extensive record demonstrating both the discriminatory 
purpose and the discriminatory effect of the 1972 lines.
The most important portions of that evidence was contained 
in a Memorandum in Opposition to Approval of Chapters 11,
76, 77 and 78 New York Laws of 1972 (hereinafter cited 
as "Memorandum") and a letter dated March 21, 1974 (here­
inafter cited as "Letter") both submitted by counsel for 
the N.A.A.C.P., etc., et al., intervenors in the instant 
action. See Appendix V.I., Tab. 8. Copies of the Memorandum 

and Letter have been filed with the Court.
These documents indicated that the 1972 lines, as 

previous redistricting, had been deliberately gerrymandered 
to keep in office, despite a growing non-white population 
in Kings County, white members of the Assembly and Senate.
This gerrymandering was accomplished by pairing non-white 

neighborhoods with far larger white areas, so that most non­
white voters were placed in districts with substantial white 
majorities. Memorandum 5-10. Voting patterns clearly indicated 
that white voters voted as a block against a Black or Puerto

22-





Rican candidate (Memorandum, pp. 15-20) and no Black or 

Puerto Rican had ever been elected to the legislature 
from Kings County by a district with a majority of white 
voters. As a result of this gerrymandering, although 
35.6% of the population of Kings County was non-white, 
only 11.7% of the Senate districts and 23.2% of the 
Assembly districts had non-white majorities. Letter, 
p. 2. There were 574,811 non-whites living in predom­
inantly white Senate districts, but only 44,081 whites 
living in predominantly non-white Senate districts. 
Similarly, there were 361,707 non-whites living in pre­
dominantly white Assembly districts, but only 135,260 
whites living in predominantly non-white Assembly districts. 

Memorandum, p. 22. As a result, a majority of BlacKS and 
Puerto Ricans in Kings County were gerrymandered into 

districts where a Black or Puerto Rican candidate could 

not possibly be elected, and were thus effectively deprived 
of the right to vote. The legislative history of the 1972 
was rife with potential for, and actual instances of, 
racial discrimination. Memorandum, pp. 11-14. Statis­
tical analysis indicated that the few non—white districts, 
placed at the very center of the ghetto, were quite compact, 
but the white districts used to disenfranchise non-white 
voters were far from compact since they were drawn to 
pair ghetto communities with larger white areas miles 
away. Memorandum, pp. 27-29. Statistics indicated that, 

had the number of non-white districts been proportionate

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to the proportion of the Kings County population which 
was non-white, there would have been 2 more predominantly 
non-white Senate districts and 3 more predominantly non­
white Assembly districts. Letter, p.3.

The evidence which prompted Assistant Attorney 
General Pottinger to disapprove the 1972' Senate and Assembly 
lines in Kings County was substantially stronger than that 
which had led to his decision several months earlier to 
disapprove the New Orleans City Council lines. The latter 
decision was upheld unanimously by a three judge federal 
court in Beer v. United States. (D.D.C. 1974.)

In view of Mr. Pottinger's decision, the legislature 

properly undertook to fashion a new districting plan which 
would not involve the discriminatory effect of the 1972 lines. 
To determine whether its proposed plan would have a dis­

criminatory effect, the legislature manifestly had to con­

sider the same factors relied upon by Mr. Pottinger and the 

district court in Beer in overturning previous plans. This 
required, as a practical matter, that the legislature reduce 
the number of non-whites disenfranchised by dispersal into 
predominantly white districts, and bring the number of non­
white Senate and Assembly districts into line with the pro­

portion of Kings County which was non-white.
The use of such racial considerations to undo the 

effect of previous discrimination has been sanctioned by 
the federal courts in a wide variety of circumstances.

-24-





In remedying the effect of school segregation, 
consideration of the racial composition of schools has 
long been sanctioned. In Wanner v. County School Board 
of Arlington County, 357 F.2d 452 (4th Cir. 1966), the 
school board voluntarily adopted a pupil assignment plan 
based on the race of the students. 'White parents sued to 
enjoin the plan as discriminatory, but the Fourth Circuit 
upheld it.

It would be stultifying to hold 
that a board may not move to undo 
arrangements artificially contrived 
to effect or maintain segregation 
on the ground that this interference 
with the status quo would involve 
"considerations of race." When 
school authorities, recognizing the 
historic fact that existing condi­
tions are based on a design to 
segregate the races, act to undo 
these illegal conditions —  especially 
conditions that have been judicially con­
demned —  their effort is not to be 
frustrated on the ground that race is not 
a permissible consideration. This is 
not the "consideration of race" which 
the Constitution discountenances.

357 F .2d at 454. In Swann v . Charlotte-Mecklenburg Board
of Education, the Supreme Court expressly upheld the use
of a racially based pupil assignment plan to end the effects
of discrimination, on the ground that "[a]wareness of the

racial composition of the whole school system is likely to
be a useful starting point in shaping a remedy to correct
past constitutional violations." 402 U.S. 1, 18 (1971).
In a companion case the Court held unconstitutional a
North Carolina law which prohibited the assignment of

students "on account of race," reasoning that such a
statute would obstruct the creation of effective remedies.



\



North Carolina Board of Education v. Swann, 402 U.S. 43,
45 (1971) .

Just as the race of students 
must be considered in deter­
mining whether a constitutional 
violation has occurred, so also 
must race be considered in for­
mulating a remedy.

402 U.S. at 46.
The Second Circuit has affirmatively sanctioned 

the use of racial criterion to promote integrated housing. 
In Norwalk CORE v. Norwalk Redevelopment agency, 395 F.2d 
920 (2d Cir. 1968), the plaintiffs .claimed that Norwalk's 
relocation practices had had the effect of driving Black 
and Puerto Rican residents out of the city, and sought 
affirmative action involving more housing for non-whites 
in the city. The Second Circuit held that such relief was 
permissible.

What we have said may require class­
ification by race. That is something 
which the Constitution usually forbids, 
not only because it is inevitably an im­
permissible classification, but because 
it is one which usually, to our national 
shame, has been drawn for the purpose of 
maintaining racial inequality. Where 
it is drawn for the purpose of achieving 
equality it will be allowed, and to the 
extent it is necessary to avoid unequal 
treatment by race, it will be required.

395 F.2d 920, 931-32. On the same theory, the Second
Circuit has sanctioned the exclusion of non-whites from
a heavily non-white housing project to prevent it from
reaching a "tipping point” and accelerating the departee
of whites. Otero v. New York City Housing Authority,

484 F .2d 1122 (2d Cir. 1973). Affirmative action to over­
come past policies of discrimination in public housing,





including a deliberate preference for previous 
excluded non-whites, has been widely upheld. See 
Gautreaux v. Romney, 448 F.2d 731 (7th Cir. 1971),
Kennedy Park Homes flss'n v. City of Lackawanna, 436 
F .2d 108 (2d Cir. 1970) cert, denied 401 U.S. 1010);
Heyward v. Public Housing Administration, 238 F.2d 
689 (5th Cir. 1956).

The use of racial considerations, particularly 
deliberately instituted quotas requiring preferential 
hiring of non-whites, is one of the most common common 
tools used to remedy racial discrimination in employment.
As the First Circuit pointed out in Associated General 
Contractors v. Altshuler, 490 F.2d 9 (1st Cir. 1973), 
such quotas have been sanctioned in literally dozens of 
reported cases.

[0]ur society cannot be completely
color blind in the shortterm if
we are to have a color blind society
in the long term. After centuries
of viewing through colored glasses,
eyes do not quickly adjust when the lenses
are removed. Discrimination has a way
of perpetuating itself . . . .  Preferential
treatment is one partial prescription to
remedy our society's most intransigent and
deeply rooted inequalities."

490 F.2d 9, 16, cert, denied 42 U.S.L.W. 3594 (1974).
The use of racial considerations to overcome the effect

previous discrimination has been sanctioned in a
variety of other areas. See e.g. Brooks, v. Beto , 366 F.2d
1 (5th Cir. 1966) (grand juries). Pore ell i. v. Titus, 431
F.2d 1254 (3d Cir. 1970) (school administrators.)

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Plaintiffs-Appellants assert that the 1972 lines should not 
have been disapproved by Assistant Attorney General Pottinger unless 
those lines were enacted with the purpose of discriminating on 
the basis of race. But the Voting Rights Act requires the 
Attorney General to disapprove redistricting laws which have 
the "purpose or effect" of discriminating on the basis of race.
42 U.S.C. § 1973c. The "effect" clause of the Voting Rights Act 
has been expressly upheld by the Supreme Court as applied to 
redistricting laws. In 1972 the Attorney General disapproved 
the Georgia congressional district lines because they had a 
"discriminatory racial effect on voting." Georgia v. United States, 

411 U.S. 526, 530 (1973). -The Supreme Court enjoined use of 
Georgia's 1972 district lines, noting that any redistricting had 
“the potential for diluting the value of the Negro vote." 411 
U.S. at 535. In 1973 the Attorney General disapproved certain 
redistricting of the New Orleans City Council lines on the grounds 
that the lines had a discriminatory effect. A three judge 
federal court in the District of Columbia unanimously upheld the 
Attorney General's decision without deciding the purpose of the 
redistricting. After reviewing the evidence regarding the 

purpose of the New Orleans City Council lines ("Plan II”), the 

Court held
Such, in brief, is the posture of 

the evidence directed toward the issue of 
purpose of Plan II, an issue, however, which 
we have no occasion to decide. New Orleans, 
we reiterate, bears the burden of proving 
that the plan is untainted by racial dis­
crimination, not only in its objective but 
also in its potential effect. For reasons

28





we elaborate in the remainder of this 
opinion, we find that Plan II will 
have the effect of abridging the right 
to vote on account of race or color.
So concluding, we need not ponder whether 
the framers of the plan intended that 
result to follow.

Beer v. United States, No. 1495-73 (D.D.C.) (Opinion
dated April 5, 1974), pp. 41a-42a. (Emphasis added

In the area of employment'discrimination, the
Supreme Court has held that an-employer 1 s standards for'
hiring and promotion are unlawful if they have the effect
of discriminating on the basis of race, regardless of the
motives underlying those practices.

What is required by Congress is the 
removal of artificial, arbitrary, 
and unnecessary barriers to employ­
ment when the barriers operate to 
discriminate on the basis of race 
. . . .  The Court of Appeals held 
that the Company had adopted the 
diploma and test requirements without 
any "intention to discriminate 
against Negro employees" . . . .  But 
Congress directed the thrust of the 
[1964 Civil Rights] Act to the con­
sequences of employment practices, 
not simply the motivation."

Griggs v. Duke Power Co., 401 U.S. 424, 431—432 (1971).
See also Rowe v. General Motors Corporation, 457 F.2d 348,
355 (5th Cir. 1972); Penn v . Stumpf, 308 F.Supp. 1238,
1244 (N.D.Cal. 1970). In White v. Regester the Supreme 
Court unanimously invalidated a Texas redistricting plan 
on the ground that,regardless of its purpose, it had the 
effect of limiting the ability of non-whites to participate 
in the political processes and to elect legislators of their 
choice. 37 L.Ed. 2d 314, 324 (1973).

The lower federal courts have awarded relief from 

laws with a discriminatory effect, regardless of their purpos



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in a variety of areas. In an action challenging as dis­
criminatory certain jury selection procedures, the Ninth 
Circuit held that the practices must be overturned if they 
had-a discriminatory effect, regardless of their purpose. 
Carmical v. Craven, 457 F.2d 582 (9t.h Cir. 1971) .

The object of the constitutional mandate 
is to produce master jury panels from 
which identifiable community classes 
have not been systematically excluded.
The object is neither to reward jury com­
missioners vdth good motives nor to punish 
those with bad intentions. When a jury 
selection system actually results in 
master jury panels from which identifiable 
classes are grossly excluded, the sub­
jective intent of those who develop and 
enforce the system is immaterial.

457 F.2d at 587. In upholding an action challenging the
discriminatory effect of certain city relocation practices,
the Second Circuit held that

The fact that the discrimination is not 
inherent in the administration program, 
but is, in the words of the District 
Court, "accidental to the plan," surely 
does not excuse the planners -from making 
sure that there is available relocation 
housing for all displacees. "Equal pro­
tection of the laws” means more than 
merely the absence of governmental action 
designed to discriminate. . . -

Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920,
931 (2d Cir. 1968). In overturning certain school board
practices in the District of Columbia, the District Court

held:
Orthodox equal protection doctrine can 
be encapsulated in a single rule: govern 
ment action which without justification 
imposes unequal burdens car awards un­
equal benefits is constitutional. The 
complaint that analytically no violation



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of equal protection vests unless the in­
equalities stem from a deliberately dis­
criminatory plan is simply false.

Hobson v. Hansen, 269 P. Supp. 401, 497 (D.D.C. 1967). ■ In
Williams v. The Matthews Company, the Eighth Circuit ruled
unlawful under the federal Fair Housing Act a landowner's
practice of only selling land to qualified contractors.

The courts will look beyond the form of 
a transaction to its substance and pro­
scribe practices which actually or pre- 
dictively result in racial discrimination, 
irrespective of defendant's motivation.
See United States v. Grooms, 348 F.Supp.
1130, 1133-1134 (M.D. Fla. 1972); United 
States v . Real Estate Development Corp­
oration, 347 F.Supp-. 776, 782 (N.D.
Miss. 1972); United States v . Reddock,
No. 6541-71-P (S.D. Ala. filed Jan. 1,
1972), aff'd. 467 F.2d 897 (5th Cir. 1972).

Opinion dated June 20, 1974, slip opinion, pp. 11-12.
In order to assess whether the 1972 and proposed

1974 district lines would have a discriminatory effect,
both the Attorney General and the legislature were required
to determine whether a majority of the eligible voters in
each district were white or non-white. The available' census
data, however, does not count the number of eligible voters
on each block or census tract, but only the total population.
The proportion of the eligible voters in a district who are
non-white is substantially lower than the proportion of the
total population which is non-white. First, a far higher
proportion of white residents than non-white residents are
old enough to vote. In Kings County, 1 5 . 3 %  of all whites
are 18 or over, but only 51.1% of all Puerto Ricans and
only 58.2% of all Blacks. See Appendix, V.I., Tab. 14,
Table 1. Second, for technical reasons involving the





method by which the Census was conducted there is con­
siderable uncertainty as to what proportion of the total 
population in each district is white and non-white. See 
Appendix, V.I., Tab 14, Table 3. Two alternative formulas 
have been used in computing these proportions. In the old 
57th Assembly District for example, the non-white popula­
tion was 60,7 74 (50.3%) under the "January" formula, and 
73,910 (61.2%) under the "February" formula. Third, under 
New York law adults who move into Kings County from outside 
New York City must wait up to 23 months before becoming 
eligible to vote in a primary. See Rosario v. Rockefeller, 
410 U.S. 752 (1973). In the relevant portions of Kings 
County the Democratic nomination is tantamount to election. 
Census data indicates that the proportion of non-whites 
disenfranchised by this law is 50-100% higher than.the pro­
portion of whites. See Appendix, V.I., Tab 14, Table 2.

Under these circumstances it was impossible for 
the Attorney General or the legislature to calculate with 
certainty the number of non-whites eligible to vote in a 
district. Clearly, in a district with a total non-white 
population of 51% under the February formula, whites would 
still constitute a very substantial majority of those persons 
eligible to vote. Non-whites would not be a majority of 
the eligible voters in a district unless they were far more 
than a majority of the total population, especially if the 
total population was calculated by the February formula.
If, under these complex circumstances, the Attorney General



■



or legislature assumed that non-whites would not be a majority 
of the eligible voters in a district unless they were at least 
65% of the February formula total population, that assumption 
was entirely reasonable.

It must be emphasized that the issue underlying Mr. 
Pottinger's decision was not maximizing the number of non-white 
seats or establishing any quota. The issue is equality of 
opportunity. Under the 1972 lines in Kings County, 56% of all 
non-whites were in majority white Senate Districts, but only 
5% of all whites were in a majority hon-white Senate District. 
Similarly, 36% of all non-whites were in majority white Assembly 
Districts, compared to only 11% of all whites in majority 
non-white Districts. Memorandum, p. 21. In a county where 
no Black or Puerto Rican had ever been elected to the legis­
lature from a majority -white district, these 1972 lines clearly 
disenfranchised a disproportionate number of non-white voters. 
The Fourteenth Amendment not only permitted but required New 
York to remedy that discrimination.

For these reasons the method by which the 1974 districts 
were drawn, and the statistical methods by which their ethnic 
compositions were calculated, were clearly constitutional.

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Conclusion
For two and one half years the NAACP has been liti­

gating to compel the enactment of racially fair district lines 
in Kings County to replace the gerrymandered 1972 lines. Within 
the last six months 23 federal judges have heard some aspect of 
this complex litigation. Since March this matter has been 
before 6 District Court judges, 8 Court of Appeals judges, and 
the entire United States Supreme Court. Everyone of these 
judges has sustained the position of the NAACP and refused to 
permit further delay of the long overdue redistricting which 
was finally adopted by the legislature on May 30, 1974. This 
Court should not consider~overturning or postponing at the 
eleventh hour the 1974 district lines which resulted from these 
years of litigation.

For the foregoing reasons the decision of the District- 

Court dismissing the complaint should be affirmed.
Respectfully submitted,

JACK GREENBERG 
ERIC SCHNAPPER 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Counsel for Appellants-Intervenors

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CERTIFICATE OF SERVICE

I, Eric Schnapper, hereby certify that on August 14, 
1974, I served a copy of the brief for appellees, N.A.A.C.P., 
etc.,et al., upon counsel for the parties in this case by 
causing a copy thereof to be deposited in the United States
mail, first class postage prepaid,

NATHAN LEWTN, ESQ.
Miller, Cassidy, LaRocca 

& Lewin, Esqs.
1320-19th Street, N.W. 
Washington, D.C.
DENNIS RAPPS, ESQ.
66 Court Street 
Brooklyn, N.Y. 11201 
Attorneys for Plaihtiffs- 

Appellants
KON. DAVID TRAGER, ESQ.
U.S. Attorney
Eastern District of New York 
225 Cadman Plaza East 
Brooklyn, New York
IRWIN HERZOG, ESQ.
Assistant Corporation counsel 
Municipal Building 
New York, N.Y. 10007 
Attorney for New York City 

Board of Elections

addressed to:

MICHAEL SCADRON, ESQ. 
Attorney
U.S. Department of 

Justice
Washington, D.C. 20530 
Attorney for Defendant 

William Saxbe
GEORGE ZUCKERMAN, ESQ. 
Assistant Attorney General 
Two World Trade Center 
New York, New York

Eric Schnappfer
Counsel fqr Intervenors-Appellees



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