Chandler v. Roudebush Brief for Petitioner

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Matter
- Jewell D. Chandler v. Richard L. Roudebush
Case
- Jewell D. Chandler v. Richard L. Roudebush
U.S. state
- California
Collection
- Brief Collection
Taxonomy
Identifier
- 1a1c1f37-ad9a-ee11-be37-00224827e97b

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Brief Collection, LDF Court Filings. Chandler v. Roudebush Brief for Petitioner, 1975. 1a1c1f37-ad9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/d8eb1163-4ae3-4f87-b1f4-d3a953d70d12/chandler-v-roudebush-brief-for-petitioner. Accessed December 04, 2025.

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IN THE

(tort nt % Mmtpft Btatva
October Term, 1975

No. 74-1599

J ewell D. Chandler, Petitioner,
v.

B ichard L. R oudebttsh, et al., Respondents.

On Writ Of Certiorari To The United States Court Of Appeals
For The Ninth Circuit

BRIEF FOR PETITIONER

P aul R. D imond
J. H arold F lannery
J oel L. Selig

L awyers’ Committee F or Civil
R ights Under L aw

733 Fifteenth Street, N.W.
Suite 520
Washington, D.C. 20005

Stuart P. H erman
9601 Wilshire Boulevard
Suite 632
Beverly Hills, California 90210

Attorneys for Petitioner

P ress of B yron S. A d a m s P r in t in g , In c ., W a s h in g t o n , d . C.

INDEX
Page

Opinions B e lo w .................................................................... 1

Jurisdiction ........................... 2

Question Presented..................................... 2

Statute In volved ................................................................. 2

Statement ....................................................... 3

Summary of Argum ent........................... 8

Argument ................................................................. 16

I. Petitioner Was Entitled to Have This Title V II
Action Against Federal Agency Defendants Ad
judicated Pursuant to the Same Procedures, In
cluding Discovery and a Plenary Judicial Trial,
As Are Applicable to Title V II Actions Against
All Other Kinds of Defendants; and the Courts
Below Erred in Granting Summary Judgment in
Favor of Respondents Pursuant to a Review of
the Administrative R e co rd ..................................... 16

A. In Context the Issue Is Whether the 1972
Amendments to Title V II Are to Be Impaired
by the Application of a Double Standard
Favoring Federal Defendants over All Other
Defendants............................................................. 16

B. The Express Language of Amended Title VII
Provides for the Same Plenary Judicial Pro
ceedings in Federal Sector Gases As in All
Other Cases .......................................................... 21
1. The Unitary and Interrelated Statutory

Structure........................................................... 21
2. The Provision of the Same Civil Action in

Significantly Different Circumstances......... 25

Index Continued

Page

C. The Legislative History of Amended Title Y II
Compels the Conclusion That Federal Sector
Cases Are to Be Conducted in the Same Man
ner As All Other C a ses ...................................... 29
1. The Evolution of the Final 1972 Legislation,

and the Structure of Other Proposals That
Were Considered............................. 31

2. The Authoritative Statements of Legislative
In ten t................................................................. 38

3. The Consistent Logic of the Final Legisla
tive P rod u ct......................................................

D. The Lower Court Decisions under Amended
Title Y II Have Adopted Rules Which May Be
Analyzed in Terms of Three Basic Categories . 47
1. Overview of the C ases.................................... 47
2. The Three Different Rules Which Have

Been Adopted .................................................. 50
a. Plenary Judicial Proceedings.................. 50
b. Review Strictly Limited to the Admin

istrative R e co rd .......................................... 52
c. Hybrid A pproaches.................................... 53
d. The Government’s P o s it io n .................... 55

E. This Court Should Adopt a Rule Providing for
Plenary Judicial Proceedings in Federal
Sector Cases, Because of the Express Lan
guage and Legislative History of the 1972
Amendments, As Well As Sound Policy Con
siderations ............................................................. 56

F. The Issue in the Case at Bar Has Important
Implications for Other Issues, Which Also
Counsel in Favor of a Rule Providing for Plen
ary Judicial Proceedings.................................... 69

G. The Posture of the Case at Bar Requires That
the Judgment Below Be R eversed .................. 72

Conclusion ......... 85

I l l

TABLE OF AUTHORITIES
Cases : Page
Adams v. Brinegar, 521 F.2d 129 (7tli Cir. 1975) .......... 47
Albemarle Paper Co. v. Moody, 95 S.Ct. 2362 (1975)

15, 70, 71, 72, 82
Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974)

9,14, 16, 17, 18, 19, 21, 24, 31, 63, 64
Anderson v. Roudebush, 10 [CCH] EPD ft 10,328 (S.D.

Gra. 1975) ..................................................................... 50
Archuleta v. Callaway, 385 F.Snpp. 385 (D. Colo. 1974) 50
Barnett v. W. T. Grant Co., 518 F.2d 543 (4th Cir. 1975) 71
Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir.

1969) ' 71
Bowers v. Campbell, 505 F.2d 1155 (9th Cir. 1974)

47,55, 58
Brown v. General Services Administration, 507 F.2d

1300 (2d Cir. 1974), cert, granted, 421 U.S. 987
(1975), No. 74-768 . _...................... 58

Burns v. Thiohol Chemical Corp., 483 F.2d 300 (5th
Cir. 1973) ....................................................................65,80

Caro v. Schultz, 521 F.2d 1084 (7th Cir. 1975) . . . .13, 22, 47,
51, 52, 65

Carr v. Conoco Plastics, Inc., 423 F,2d 57 (5th Cir.
197 0 ) ...................... ............................. ; ................. . 71

Chandler v. Johnson, 515 F.2d 251 (9th Cir. 1975), cert.
granted sub nom Chandler v. Roudebush, 44
U.S.L.W. 3200 (U.S., Oct. 6, 1975) .........1,47,53,55,61

Chandler v. Johnson, 7 [BNA] F.E.P. Cases 266 (C.D.
Cal. 1973), aff’d, 515 F.2d 251 (9th Cir. 1975), cert,
granted sub nom Chandler v. Roudebush, 44
U.S.L.W. 3200 (U.S., Oct. 6, 1975) .......................... 1

Chisholm v. U.S. Postal Service, 9 EPD ft 10,212, 11
F.E.P. Cases 457 (W.D. N.C. 1975), appeal pend
ing, 4th Cir. Nos. 75-2068, 75-2069 ...........................49,69

Davis v. Dept, of H.E.W., 10 EPD ft 10,341 (E.D. La.
1975) ............................................................................. 49

Douglas v. Hampton, 512 F.2d 976 (D.C. Cir. 1975) _.. 82
Drew v. Liberty Mutual Ins. Co., 480 F.2d 69 (5th Cir.

1973) ....................................... 48
Early v. Klassen, 10 EPD ft , 11 F.E.P. Cases ,

D.D.C., C.A. No. 75-153, Oct. 30, 1975 ........................ 49
Eastland v. Tennessee Valley Authority, 9 EPD ft 9927

(N.D. Ala. 1975), appeal pending, 5th Cir. No.
75-1855 ........................................................................... 70

IV Table of Authorities Continued

Page
Ellis v. Naval Air Rework Facility, 10 EPD If 10,257,

11 F.E.P. Cases 317 (N.D. Cal. 1975), 10 EPD
If 10,422, 11 F.E.P. Cases (N.D. Cal. 1975), 10
EPD , 11 F.E.P. Cases , N.D. Cal., No.
C-73-1794 WHO, Nov. 4, 1975 ................................49,70

Espinosa v. Farah Mfg. Co., 414 U.S. 86 (1973) .......... 17
Ettinger v. Johnson, 518 F.2d 648 (3rd Cir. 1 97 5 )........ 47
Fisher v. Brennan, 517 F.2d 1404 (6th Cir. 1975), aff’g

without published opinion 384 F.Snpp. 174 (E.D.
Tenn. 1974) ................................................................. 48

Gamble v. Birmingham Southern Railroad Co., 514
_ F.2d 678 (5th Cir. 1975) .......................................... 71

Griggs v. Duke Power Co., 401 U.S. 424 (1971) ..........70, 82
Grubbs v. Buts, 514 F.2d 1323 (D.C. Cir. 1975) ............ 47
Hackley v. Johnson, 360 F.Supp. 1247 (D.D.C. 1973),

rev’d sub nom Hackley v. Roudebush, 520 F.2d
108 (D.C. Cir. 1975) ..................................7, 51, 53, 67, 68

Hackley v. Roudebush, 520 F.2d 108 (D.C. Cir. 1975)
13,17, 22, 24, 29, 31, 32, 34, 35,
36, 37, 40, 41, 43, 47, 51, 52, 57,

58, 60, 62, 63, 65, 67, 69, 77
IIaire v. Calloway, F.2d , 10 EPD if , 11 F.E.P.

Cases 769, 8th Cir. Nos. 74-2004, 75-1050, Nov. 17,
1975 ................................................................. 47,54,61,68

Hammond v. Bolzano, 10 EPD if 10,333 (D. D.C. 1975) 59
Harris v. TJlanich, 10 EPD if 10,262 (E.D. Va. 1974) . . 49
Jackson v. U.S. Civil Service Comm’n, 379 F.Supp.

589 (S.D. Tex. 1973) ............................................. 59
Jenkins v. United Gas Corp., 400 F.2d 28 (5th Cir

1968) ............................................................................. 71
Jewell v. Middendorf, 10 F.E.P. Cases 1110 (C.D. Cal.

1975)............................................................................... 50
Johnson v. Clotworthy, 10 EPD if 10,315 (D. D.C. 1975) 50
Johnson v. Georgia Highway Express, Inc., 417 F.2d

1122 (5th Cir. 1969) .................................................... 71
Johnson v. Goodyear Tire S Rubber Co., 491 F.2d 1364

(5th Cir. 1974) ........................................................... 71
Johnson v. U.S. Postal Service, 364 F.Supp. 37 (N.D.

Fla. 1973), aff’d per curiam, 497 F.2d 128 (5th Cir.
1974) ........................................... 48

Jones v. Brennan, F.Supp. , 10 EPD if , 11
F.E.P. Cases , N.D. G-a., Atl. Div., Civ. No.
19139, Sept. 30, 1975 .................................................. 49

Table of Authorities Continued v

Page

Keeler v. Hills, 10 EPD U , 11 F.E.P. Cases ,
N.D. Ga., Atl. Div., C.A. Nos. C74-2152A, C74-
2309A, Nov. 12, 1975 ................................................. 49

Roger v. Ball, 497 F.2d 702 (4th Cir. 1974) ........... 49
McCreesh v. Berude, 385 F.Supp. 1365 (E.D. Pa. 1974) 49
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)

9,10,16, 24,28, 31,
65, 70, 76, 77, 79, 83

McHoney v. Callaway, 10 EPD H , 11 F.E.P. Cases
, E.D. N.Y., No. 74-C-1729, Oct. 10, 1975 . . . . . 49

Miller v. International Paper Co., 408 F.2d 283 (5th
Cir. 1969) ........................ 71

Morton v. Mancari, 417 II. S. 535 (1974) . . . .9,17,18, 32, 33
Newman v. Piggie Park Enterprises, 390 U.S. 400

(1968) ............................................................... 70
Oatis v. Crown-Zellerbach Corp., 398 F.2d 496 (5th Cir.

1968) ..................................................................... 71
Oubichon v. North American Rockwell Corp., 482 F .2d

569 (9th Cir. 1973) ............................. 71
Palmer v. Rogers, 10 EPD IT 10,265 (D. D.C. 1975) . . . . 59
Parks v. Dunlop, 517 F.2d 785 (5th Cir. 1975) .............. 48
Pendleton v. Schlesinger, 8 EPD TT 9598, 8 F.E.P. Cases

853 (D. D.C. 1974), appeal pending, D.C. Cir. No.
74-1929 ........................................................................ 70

Pennv. Schlesinger, 490 F.2d 700 (5th Cir. 1973), rev’d
on exhaustion of remedies issue, 497 F.2d 970 (5th
Cir. 1974) (en banc), pet. for cert, pending, No.
74-476 ............................................. _.............. ............ ; 58

Petterway v. Veterans Administration Hospital, 495
F.2d 1223 (5th Cir. 1974) . . .̂ .................................... 58

Pettwai/ v. American Cast Iron Pipe Co., 494 F.2d 211
(5th Cir. 1974) ............................................................. 71

Rogers v. E.E.O.C., 10 EPD If 10,416, 11 F.E.P. Cases
337 (D. D.C. 1975) .......................................................... 59

Salone v. United States, 511 F.2d 902 (10th Cir. 1975),
pet. for cert, pending, No. 74-1600 ........................47, 52

Sanches v. Standard Brands, Inc., 431 F.2d 455 (5th
Cir. 1970) ...................................................................... 71

Smith v. Fletcher, 10 EPD TT 10,329 (S.D. Tex. 1975) .. 59
Spencer v. Schlesinger, 374 F.Supp. 840 (D. D.C. 1974),

appeal pending, D.C. Cir. No. 74-1787 . .............. 70
Sperling v. United States, 515 F.2d 465 (3rd Cir. 1975),

pet. for cert, pending, No. 75-247 . . . .13, 22, 41, 43, 47,
51, 52, 57, 58, 65,67, 69

V I Table of Authorities Continued

Page
Sylvester v. U.S. Postal Service, 393 F.Supp. 1334

(S.D. Tex. 1975) ........................................................ 49,69
Warren v. Veterans Hospital, 382 F.Supp. 303 (E.D.

Pa. 1974) ........................................................................ 49
Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239 (3rd

Cir. 1975), cert, denied, 421 U.S. 1011 (1 9 7 5 )........ 71
Williams v. Tennessee Valley Authority, 10 EPD

if , 11 F.E.P. Cases , M.D. Tenn., C.A. No.
_75-186-NA-CV, Nov. 21, 1975 .................................... 49

Wright v. Nat’l Archives and Records Service, 388
F.Supp. 1205 (D. Md. 1975), appeal pending, 4th
Cir. No. 75-1378 .......................................................... 49

Statutes :
5 U.S.C. § 7151 32
28 U.S.C. § 1254(1) ............................................................ 2
28 U.S.C. §§ 1291, 1292 ............................................ .. 23
42 U.S.C. § 1981 .............................................................. 47, 55
Title V II of the Civil Rights Act of 1964 as amended

by the Equal Employment Opportunity Act of
1972, 42 U.S.C. § 2000e, et seq.............................passim
42 U.S.C. § 2000e(a) ..
42 U.S.C. § 2000e-5(f) .
42 U.S.C. § 2000e-5(g)
42 U.S.C. § 2000e-5(i)
42 U.S.C. § 2000e-5(j)
42 U.S.C. § 2000e-5(k)
42 U.S.C. § 2000e-16(a)
42 U.S.C. § 2000e-16(b)
42 U.S.C. § 2000e-16(c)
42 U.S.C. § 2000e-16(d)

.............................................. 16

. . . 16, 22, 23, 24, 37, 46, 62, 84

.............................................. 23
.............................................. 24
.............................................. 23
.................... 16, 23, 37, 62, 84
............................................ 2, 4
.................................. 37, 44, 81
........................ 3, 5, 21, 25, 26
.................. 3 ,22,24,27,37,46

Obdees and R egulations :
5 C.F.R. Part 713, 34 Fed. Reg. 5467 (Mar. 19, 1969),

as amended at 34 Fed. Reg. 14023 (Sept. 4, 1969) . 32
5 C.F.R. Part 713, 37 Fed. Reg. 25699 (Dec. 2, 1972) . . 32
5 C.F.R. Part 713 (1973) .............................................. 25, 61

Table of Authorities Continued vii

5 C.F.R. § 713.203
5 C.F.R. §713.214
5 C.F.R. § 713.215
5 C.F.R. §713.216
5 C.F.R. §713.217
5 C.F.R. §713.218
5 C.F.R, §713.221
5 C.F.R, § 713.231
5 C.F.R. § 713.281
5 C.F.R. §713.302

Page
.. 81
. . 4

on
26, 29
4, 26
5, 26
5, 26
5, 26

25, 26
. . 81

Executive Order 11246 (1965) ....................................... 32

Executive Order 11478 (1969)

Legislative H istoby :

118 Cong. Rec. S 1219 (daily ed., Jan. 23, 1973) ........ 41

H. R. Rep. No. 92-238, 92d Cong., 1st Sess. (1971)
[cited as House Report] ......................33,34,38,44,45

S. Rep. No. 92-415, 92d Cong., 1st Sess. (1971)........30,38,
43, 45

Senate Committee on Labor and Public Welfare, Legis
lative History of the Equal Employment Oppor
tunity Act of 1972, 92d Cong., 2d Sess. (Commit
tee Print, 1972) [cited as History] [Congressional
Record citations also included in b r ie f]-----30, passim

Miscellaneous :

Brief for Appellees, Swain v. Calloway, 5th Cir. No.
75-2002 ......................................................................... 20

Brief for N A A (TP Legal Defense and Educational
Fund, Inc. as Amicus Curiae, Chandler v. Roude-
bush, No. 74-1599, October Term, 1975 ..................62, 69

Brief for the United States as Amicus Curiae, Alex
ander v. Gardner-Denver Co., No. 72-5847, Octo
ber Term, 1973 ........................................................... 20

vm Table of Authorities Continued

Page
Brief for the United States and the Equal Employ

ment Opportunity Commission as Amicus Curiae,
Albemarle Paper Co. v. Moody, Nos. 74-389, 74-428,
October Term, 1974 .......... ......................... ............... 20

Fed.B.Civ.P. 23 ................................................... 69
Fed.B.Civ.P. 2 6 ..................................... 66
Fed.B.Civ.P. 56 .................................................................. 52,75
Justice Department Memorandum in Response to Court

Request, Oringel v. Mathews, 5th Cir. No. 74-3971
(Oct. 23, 1975) .......................................................... 54,55

Letter from Acting Assistant Attorney General Irving
Jaffe to Senator John Y. Tunney, May 6, 1975,
published in CCH Employment Practices Guide,
New Developments K 5327 ........................................ 25

Memorandum in Response to Petition for Rehearing,
Place v. Weinberger, No. 74-116, October Term,
1974 ..............................................................................49,55

U.S. Civil Service Commission, Discrimination Com
plaint Examiner’s Handbook (April, 1973)........ 62,77

U.S. Commission on Civil Rights, The Federal Civil
Rights Enforcement Effort—1974, Vol. V, “ To
Eliminate Employment Discrimination” (July,
197 5 )............................................................................. 29,62

IN THE

B n p t m t (tart of X \ \ t Ittttrii M u U b
O ctobeb T e r m , 1975

No. 74-1599

J e w e l l D. C h a n d l e r , Petitioner,
v.

R ic h a r d L. R o u d ebu sh , et a l ., Respondents.

On Writ Of Certiorari To The United States Court Of Appeals
For The Ninth Circuit

BRIEF FOR PETITIONEE

OPINIONS BELOW

The opinion of the court of appeals is reported at
515 E.2d 251, and is reproduced in the appendix to
the petition for certiorari (Pet. App. 34a-41a).

The opinion of the district court is not officially re
ported. It is unofficially reported at 7 [CCTI] EPD
19139, and at 7[BN A] E. E. P. Cases 266. The dis
trict court’s opinion is reproduced in the appendix
to the petition for certiorari (Pet. App. 30a-33a).

Also reproduced in the appendix to the petition
are the findings and recommended decision of the

hearing examiner (Pet. App. la-17a), the decision of
the Veterans Administration (Pet. App. 18a-21a),
and the decision of the Civil Service Commission (Pet.
App. 21a-29a).

JURISDICTION

The judgment of the court of appeals was entered
on April 25, 1975. The petition for certiorari was
filed on June 19, 1975 and granted on October 6, 1975.
Jurisdiction is invoked under 28 U.S.C. §1251(1).

QUESTION PRESENTED

Whether petitioner, who alleged unlawful discrimi
nation in employment by a federal agency in a suit
under the 1972 amendments to Title V II of the Civil
Rights Act of 1964, was entitled to plenary judicial
proceedings in the district court, as opposed to a re
view of the administrative record?

STATUTE INVOLVED

Section 717 of Title V II of the Civil Rights Act of
1964 as amended by the Equal Employment Oppor
tunity Act of 1972, 42 U.S.C. § 2000e-16, provides in
pertinent part as follows:

(a) All personnel actions affecting employees or
applicants for employment (except with regard
to aliens employed outside the limits of the
United States) in military departments as de
fined in section 102 of Title 5, in executive agen
cies (other than the General Accounting Office)
as defined in section 105 of Title 5 (including em
ployees and applicants for employment who are
paid from nonappropriated funds), in the United
States Postal Service and the Postal Rate Com
mission, in those units of the Government of the

District of Columbia having positions in the com
petitive service, and in those units of the legis
lative and judicial branches of the Federal Gov
ernment having positions in the competitive
service, and in the Library of Congress shall be
made free from any discrimination based on race,
color, religion, sex, or national origin.

# * *
(c) Within thirty days of receipt of notice of
final action taken by a department, agency, or
unit referred to in subsection (a) of this section,
or by the Civil Service Commission upon an ap
peal from a decision or order of such department,
agency, or unit on a complaint of discrimination
based on race, color, religion, sex or national ori
gin, brought pursuant to subsection (a) of this
section, Executive Order 11478 or any succeed
ing Executive orders, or after one hundred and
eighty days from the filing of the initial charge
with the department, agency, or unit or with the
Civil Service Commission on appeal from a de
cision 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 appli
cant for employment, if aggrieved by the final dis
position of his complaint, or by the failure to take
final action on his complaint, may file a civil action
as provided in section 2000e-5 of this title, in which
civil action the head of the department, agency, or
unit, as appropriate, shall be the defendant.
(d) the provisions of section 20Q0e-5(f) through
(k) of this title, as applicable, shall govern civil
actions brought hereunder.

* * *
STATEMENT

Petitioner, Jewell D. Chandler, is a black female
employee of the Veterans Administration. In 1972
Ms. Chandler applied for a GS-13 Supervisory Claims
Examiner (Section Chief) position in the Division

of tiie Los Angeles Region in which she was employed.
As of October 1972, there were 16 positions above the
G-S-12 level in that Division, of which two were held
by white females, and fourteen were held by non
black males. Of all Division employees, 38 percent
were female and 25 percent were black. (A.R. 18-19;
Pet. App. 3a-4a) -1

Petitioner was designated as “ highly qualified” for
the position in question, and was referred, with other
candidates, to the selecting official for his considera
tion. A non-black male was selected for the position.
(A.R. 19-21; Pet. App. 4a-5a).

Petitioner then filed a timely administrative com
plaint pursuant to 42 U.S.C. § 2000e-16(a) and 5
C.P.R. § 713.214, alleging, inter alia, that her non-se
lection for the position in question was due to unlawful
discrimination on the basis of her race (black) and sex
(female). (A.R. 269-276). Petitioner subsequently re
quested a hearing on her complaint.2 An administrative

1 Pursuant to Rule 36(4), the deferred appendix procedure is
being utilized in this case. (Stipulation, Oct. 21, 1975). Citations
herein are to the original record.

The record consists of four separately paginated volumes plus
one paginated exhibit volume. Volume 1 contains the pleadings,
orders, etc., in the district court and the court of appeals, and is
cited as ‘ R. ------ ’. Volumes 2-4 consist of the transcripts of three
motion hearings in the district court, and are cited as, e.g., ‘ Tr.
------ ----- Oct. 29, 1973’.

The certified administrative record of proceedings before the
Veterans Administration and the Civil Service Commission con
stitutes the exhibit volume, and is cited as ‘ A .R .------This exhibit
was part of the record before the lower courts. (R. 121-2).

Portions of the record which are reproduced in the appendix to
the petition for certiorari are also cited as ‘ Pet. App. —■—

2 Such a hearing is not reqiured, but is available at the com
plainant’s option. 5 C.P.R. § 713.217(b).

hearing was accordingly held, at which Ms. Chandler,
who is not an attorney, represented herself. The hear
ing examiner refused to call 15 of the 24 witnesses
whom petitioner had requested, including the individ
ual who had been selected over petitioner for the
job in question. (A.R. 118, 140-145). After the hear
ing, the examiner submitted findings and recommen
dations pursuant to 5 C.E.R. § 713.218(g), to the effect
that petitioner had not been discriminated against
on the basis of her race with respect to the non-selec
tion in question, but that she had been discriminated
against on the basis of her sex. In light of the find
ing of sex discrimination, the examiner recommended
that petitioner be promoted immediately and retro
actively to the position in question. (A.R. 16-35; Pet.
App. la-17a).

Upon receipt of the hearing examiner’s findings and
recommended decision, a final decision was issued by
the Veterans Administration. This decision rejected
the examiner’s finding of sex discrimination, accepted
the finding of no race discrimination, and according
ly granted no relief. (A.R. 36-9; Pet. App. 18a-21a).
Petitioner then filed a timely appeal to the Civil Serv
ice Commission. (A.R. 13-15).3 The Commission
affirmed the Veterans Administration’s decision. (A.
R. 3-8; Pet. App. 21a-29a). Petitioner then filed this
suit pursuant to subsection 717(c) of Title V II of
the Civil Rights Act of 1964, as amended by the Equal
Employment Opportunity Act of 1972, 42 U.S.C.
§ 2000e-16(c). (R. 1-7).

3 Such an appeal is not required, but is available at the com
plainant ’s option. 5 C.F.R. §§ 713.221(d), 713.231(a).

In the district court, petitioner first moved for sum
mary judgment on the ground that the official who
entered the Veterans Administration decision reject
ing the hearing examiner’s decision in petitioner’s
favor was, as a technical matter of delegation of au
thority, without authority to act in the matter. (R. 17-
30). This motion was denied. (R. 143-4). Petitioner
then promptly initiated discovery, filing notice of two
depositions and a request for production of documents.
(R . 146-150). The respondents moved for a protective
order prohibiting the discovery, on the ground that
discovery was impermissible because the judicial pro
ceedings should be limited to a review of the admini
strative record. (R. 151-7). Petitioner opposed the
motion for a protective order, asserting her right to
discovery and to a plenary judicial trial de novo. (R.
158-171).

In order to avoid deciding the issues presented in
a piecemeal fashion, the district court determined that
it would hold the question of discovery in abeyance
pending (1) the filing of cross-motions for summary
judgment on the basis of the administrative record,
and (2) a determination by the court of the proper
scope of the judicial proceedings. (Tr. 3-10, Nov. 26,
1973). Pursuant to the court’s request, the parties
then filed cross-motions for summary judgment on
the basis of the administrative record. (R. 172-180;
R. 181-194). It was clearly understood by the parties
and the district court that petitioner’s cross-motion
for summary judgment was filed without prejudice
to her position that she had a right to discovery and
a trial de novo. (Tr. 3-10, Nov. 26, 1973).

After the cross-motions for summary judgment
were filed, the district court granted respondents’ mo

tion for summary judgment on the basis of the admin
istrative record, without any pre-trial discovery and
without any judicial evidentiary proceedings. The
district court adopted the legal position of Hockley v.
Johnson, 360 F.Supp. 1247 (DJD.C. 1973), rev’d sub
nom Hackley v. Roudebush, 520 F.2d 108 (D.C. Cir.
1975), concerning the nature and scope of judicial pro
ceedings in Title V II cases against federal defendants.
It then found “ that the absence of discrimination is
firmly established by the clear weight of the admin
istrative record and hence plaintiff is not entitled to
any relief.” Apart from thus paraphasing the Hack-
ley district court’s standard for granting summary
judgment in the government’s favor on the basis of
the administrative record, the opinion of the district
court in the case at bar did not explain or state any
reasons for its finding against petitioner. (R. 252-9;
Pet. App. 30a-33a).

The court of appeals affirmed the district court’s
denial of petitioner’s motion for summary judgment
on the ground of improper delegation of reviewing
authority, and affirmed the district court’s denial of
petitioner’s cross-motion for summary judgment on
the administrative record. (515 F.2d at 253-4; Pet.
App. 36a-38a). The petition for certiorari did not seek
review of these holdings. (Pet. 6).

The court of appeals also affirmed the district court’s
grant of summary judgment in respondents’ favor on
the basis of the administrative record and its denial
of a plenary judicial trial de novo. (515 P .2d at 254-
5; Pet. App. 38a-41a). This is the issue on which
certiorari was sought and granted. (Pet. 6). The
court of appeals held that the district court correctly
“ adopted and applied the intermediate scope of in

quiry expounded in Hackley v. Johnson [supra],” and
that summary judgment in the government’s favor was
appropriate on the basis of the administrative rec
ord. (515 F.2d at 254-5; Pet. App. 38a-41a). In ruling
that petitioner was not entitled to a trial de novo as
a matter of right, the court of appeals held that a
federal sector Title V II plaintiff must make a show
ing of necessity in his or her particular ease before
supplementation of the administrative record or a trial
de novo is considered. The court then concluded that
petitioner had not made such a showing of necessity.
(515 F.2d at 255; Pet. App. 40a-41a).4

SUMMARY OF ARGUMENT

Civil actions under Title V II against federal gov
ernment defendants should be adjudicated pursuant to
the same procedures that are utilized in all other civil
actions under Title V II. These procedures include dis
covery pursuant to the Federal Rules of Civil Proce
dure, and a plenary judicial trial. The courts below
followed an erroneous procedure in granting summary
judgment against petitioner pursuant to a review of
the administrative record.

A. It is settled that Title V II actions against pri
vate sector defendants are plenary judicial proceed

4 This conclusion by the court of appeals ignored the fact that
petitioner had attempted to conduct discovery and had presented
reasons why the discovery requested was necessary. In addition,
while the court of appeals’ opinion implies that petitioner was
somehow remiss in her obligation to apprise the district court of
the reasons why supplementation of the record or a trial de novo
was necessary, in fact petitioner made her position and the reasons
for it quite clear, and the procedure by which the issues were
presented to the district court was the procedure which the district
court itself requested. (R. 146-150,158-171; Tr. 3-10, Nov. 26,1973).

ings, and that prior administrative or arbitral deter
minations cannot override the plaintiff’s right to a
plenary judicial trial. McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973) ; Alexander v. Gardner-
Denver Co., 415 U.S. 36 (1974). The question in this
ease, therefore, is whether a double standard is to be
applied which places the federal government in a
favored position in comparison to other Title Y II de
fendants. Such a double standard would be incompat
ible with the central purpose of the 1972 amendments
extending Title V I I ’s coverage to the federal sector.
That purpose was to place federal employees and ap
plicants on a par with employees and applicants in the
private sector. Morton v. Mancari, 417 U.S. 535, 546-7
(1974).

Unless plenary judicial proceedings are provided in
federal sector Title V II cases, the effectiveness of the
1972 amendments will be drastically impaired. The
substantive Title V II law developed in private sector
cases is now to be applied to the federal government.
Morton v. Mancari, supra, 417 U.S. at 547. Plenary
judicial proceedings are essential to the accomplish
ment of this objective, because under Title V II the
forum of trial “ inevitably affects the scope of the
substantive right to be vindicated.” Alexander v. Gard-
ner-Denver Co., supra, 415 U.S. at 56. The reasoning
of the Court in the Alexander case is fully applicable
by analogy in the case at bar.

B. 1. The plain language of amended Title V II
provides for the same plenary judicial proceedings in
federal sector cases as in all other cases. The statutory
structure is unitary and interrelated; the section of
the statute which creates and describes a civil action in

the federal sector is expressly cross-referenced to the
provisions which govern private sector cases. It is
settled that those latter provisions require plenary
judicial proceedings.

2. Petitioner’s analysis of the statutory language
is buttressed by a review of the various stages in the
administrative enforcement procedure at which a civil
action may be filed. In some of the circumstances
where the judicial process may be invoked, such as
when no administrative record has been timely com
piled, plenary judicial proceedings are obviously re
quired. Yet the statute in no way distinguishes this
circumstance from others. Nor does the statute dis
tinguish cases in which an administrative evidentiary
hearing has been held from those in which there has
been no such hearing. Since no distinctions are made
between significantly different circumstances, the ju
dicial procedures contemplated must be the same in
all cases, namely, those which are available in any
plenary civil action. Moreover, since no explicit restric
tion on the judicial process is stated in the statute, the
process is impliedly unrestricted. The courts may not
engraft restrictions onto Title Y II which the statute
itself does not impose. McDonnell Douglas Corp. v.
Green, supra, 411 U.S. at 798-9.

C. The legislative history of amended Title V II
compels the conclusion that federal sector cases are to
be adjudicated in the same manner as all other cases.
The purpose of the 1972 amendments was to grant the
same treatment in the courts to all Title Y II litigants,
in the private sector, the state and local government
sector, and the federal sector.

1. The federal sector 1972 amendments were in
tended to rectify a situation in which enforcement of
equal employment opportunity in the federal govern
ment was dependent upon an administrative procedure
that had impeded rather than advanced the goal of
eliminating discrimination. The congressionally man
dated recourse for the federal sector complainant who
is dissatisfied with the result obtained in the admin
istrative process is a plenary civil action in district
court. Some of the draft legislation considered in the
92d Congress provided for an administrative cease
and desist procedure and court of appeals review on
the administrative record in the private sector, and
this was a major source of controversy. However, in
these drafts, which also extended Title Y I I ’s coverage
to the federal government, federal sector cases wTere
always governed by the section of the proposed statute
providing for a civil action in district court; they were
never governed by the section providing for a review
on the record in the court of appeals. In the statute as
enacted, cease and desist and court of appeals reviewT
were dropped in the private sector, and all cases were
governed by the plenary civil action provisions that
governed federal sector cases in the antecedent draft
legislation.

2. The unitary structure of the finally enacted
legislation fully implements the basic congressional
purpose with respect to the federal sector: to provide
the same rights and remedies to federal employees and
applicants as were provided in the private sector. The
authoritative statements of legislative intent empha
size the concept of equality of treatment in all sectors
of the economy, and among all plaintiffs and all de
fendants. The relevant House and Senate Committee

1 2

reports, and numerous statements of Senator Dominick
(who played a pivotal role in the evolution of the stat
ute as enacted), are especially authoritative. The con
troversy over certain remarks of Senator Cranston and
Senator Williams is not of controlling significance in
view of the clear thrust of the legislative history taken
as a whole.

3. The congressional intent to afford plenary ju
dicial proceedings in federal sector cases is in no way
inconsistent with the simultaneous determination to
retain the Civil Service Commission, rather than the
Equal Employment Opportunity Commission, as the
administrative agency with authority in the federal
sector. The federal sector civil action in district court
was intended to provide a judicial check on the pro
defendant bias of the CSC, just as the private sector
civil action would provide a judicial check on the pro
plaintiff bias of the EEOC. In both sectors, the district
court’s authority is exerted through a de novo judicial
proceeding. The plenary civil action in the federal
sector is also consistent with the purpose of maintain
ing the mechanism for possible internal complaint res
olution and possible agency self-correction which the
administrative procedure provides.

D. The decisions of the lower courts which have
considered the issue in the case at bar fall into three
basic categories. The Third, Seventh and District
of Columbia Circuits have ruled in favor of petition
er’s position that federal sector Title VIX cases are
to be conducted as plenary judicial proceedings. The
Tenth Circuit has held that the judicial function in
federal sector Title Y II cases is strictly limited to a
renew of the administrative record pursuant to a

“ substantial evidence” standard. The Eighth and
Ninth Circuits have adopted a hybrid approach, pur
suant to which the plaintiff must make a showing of
necessity to justify any effort to go beyond the ad
ministrative record. The decisions of the courts which
have held in favor of plenary judicial proceedings are
far more persuasively reasoned than the decisions to
the contrary. Hack,ley v. Roudebush, 520 E.2d 108
(D.C. Cir. 1975) ; Sperling v. United States, 515 F.2d
465 (3rd Cir. 1975), pet. for cert, pending, No. 75-247;
Caro v. Schultz, 521 F.2d 1084 (7th Cir. 1975).

E. The only rule which is consistent with the lan
guage and legislative history of the 1972 amendments
is one which provides for plenary judicial proceedings.
This case does not present a policy issue for the
Court’s review, because the policy decision has already
been made by Congress. But even if this were not so,
sound policy considerations would also counsel in
favor of the rule which petitioner advocates.

Any rule which fails to recognize the right to ple
nary judicial proceedings wrould drastically impair
the effectiveness of the 1972 amendments by making
judicial deference to agency and CSC decisions the
easy path of least resistance. Moreover, federal sector
plaintiffs would be placed at a unique and wholly un
justified disadvantage if they were required to make
an affirmative showing persuading the district court
that there is a “ need” before they could exercise pro
cedures routinely accorded to other civil litigants.

A double standard providing for a restrictive ap
proach only in federal sector cases is not justified by
considerations of judicial economy. Whatever view one
takes as to the efficacy of the CSC-designed adminis

trative process, it is not—and is not intended to be—
either the equivalent or an approximation of an ad
versary judicial proceeding. Title V I I ’s judicial reme
dy would be of dubious value if it did not include the
right to conduct discovery and have the court evaluate
the credibility of witnesses by observing their testi
mony.

In federal sector Title V II cases as in any civil
litigation, the district courts may take informal steps
to avoid unnecessary duplication of evidence which is
already of record. The administrative record is ad
missible in the district court, subject to the limitations
of the Federal Rules o f Civil Procedure and the Fed
eral Rules of Evidence. But it is admissible only for
whatever light it, as one item of evidence, sheds on
the facts at issue. It cannot justly be utilized as a
weapon for limiting the scope of otherwise proper dis
covery or for impairing the plaintiff’s access to the
normal mechanisms of judicial factfinding. To focus
the attention of the parties and the court on the ad
ministrative record by limiting the scope of judicial
proceedings would have the same stultifying effect as
a regime of “ deferral” , which this Court has specifi
cally rejected in the private sector. Alexander v. Gard-
ner-Denver Co., supra, 415 U.S. at 55-9.

F. The issue in the case at bar has important im
plications for other issues. Foremost among these is
the question of the availability of class actions in fed
eral sector cases. Any rule providing for less than
plenary judicial proceedings would raise very serious
questions as to the applicability of private sector class
action law in the federal sector. Such a result would
be inconsistent with Title V I I ’s broad remedial pur

pose, and contrary to the express will of Congress. See,
Albemarle Paper Co. v. Moody, 95 S.Ct. 2362, 2370
n.8 (1975).

G-. In the case at bar, petitioner was deprived of
the right to conduct any discovery and the right to
present any testimonial evidence to the district court
as trier of fact. A reversal of the judgment below fol
lows as a matter of course if petitioner had the right to
plenary judicial proceedings. Moreover, even if the
Court were to adopt an approach requiring a showing
of necessity to go beyond the administrative record,
the judgment in the case at bar should still be reversed.
The courts below ignored crucial deficiencies in the
administrative record in holding that there was no
need for discovery and judicial evidentiary proceed
ings in the case at bar.

ARGUMENT

L
PETITIONER WAS ENTITLED TO HAVE THIS TITLE VII ACTION AGAINST FED

ERAL AGENCY DEFENDANTS ADJUDICATED PURSUANT TO THE SAME
PROCEDURES, INCLUDING DISCOVERY AND A PLENARY JUDICIAL TRIAL,

AS ARE APPLICABLE TO TITLE VII ACTIONS AGAINST ALL OTHER KINDS
OF DEFENDANTS; AND THE COURTS BELOW ERRED IN GRANTING SUM
MARY JUDGMENT IN FAVOR OF RESPONDENTS PURSUANT TO A REVIEW

OF THE ADMINISTRATIVE RECORD.

A. In Context the Issue Is Whether the 1972 Amendments to
Title VII Are to Be Impaired by the Application of a Double
Standard Favoring Federal Defendants Over All Other
Defendants.

I f the defendant in the case at bar were a private
company rather than a federal agency, and the court
of appeals had held that plenary judicial proceedings
were not a matter of right and that the district court
could, in its discretion, simply review the record of
administrative or arbitral proceedings, then the deci
sion below would he plainly inconsistent with the deci
sions of this Court. For it is settled that Title V II ac
tions against private sector defendants are de novo
judicial proceedings, and that prior administrative or
arbitral determinations cannot override the plaintiff’s
right to a plenary judicial trial. McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973) ; Alexander v.
Gardner-Denver Go., 415 U.S. 36 (1974). Under the
1972 extension of Title V I I ’s coverage, this is clearly
the law not only with respect to private companies,
unions and employment agencies, but with respect to
state, county, and municipal governments as well.5

This case therefore raises the fundamental question
o f whether the federal government is to be subjected

5 See, 42 U.S.C. §§2000e(a), 2000e-5(f)-(k).

to different and less demanding legal standards and
procedures under Title Y II than those to which all
other classes of defendants are subjected. It seems ob
vious that a legislative intention to enshrine such a
double standard could be inferred only from the most
compelling evidence. Compare, Espinoza v. Farah Mfg.
Co., 414 U.S. 86, 89-91 (1973). As is shown in Argu
ments 1 (B ) and 1(C ), infra, the language and legis
lative history of the 1972 amendments provide no sup
port for any such inference. On the contrary, the cen
tral purpose of the federal sector 1972 amendments
was to place federal employees and applicants on a par
with employees and applicants in the private sector.
Morton v. Mancari, 417 U.S. 535, 546-7 (1974). This
purpose was informed by the ideal of fundamental
fairness in the exercise of the power and authority of
the federal government. 11 Equality is the touchstone of
a democratic government, and Congress in 1972 finally
perceived the injustice and hypocrisy of a system that
demanded more from private employers than it was
willing to give itself. . . . ” Hackley v. Roudebush, 520
E.2d 108, 136 (D.C. Cir. 1975).

The effectiveness of the 1972 federal sector amend
ments largely depends upon the proper resolution of
the issue which this case presents. As this Court has
recognized, in Title Y II actions the forum of trial “ in
evitably affects the scope of the substantive right to
be vindicated.” Alexander v. Gardner-Denver Co.,
supra, 415 U.S. at 56. For that reason, the following
recent statements by the Court provide substantial
guidance on the issue here presented, even though they
are addressed to the question of substantive legal
standards rather than to any question of procedure:

. . the mechanism for enforcing longstanding
Executive Orders forbidding Government discrim
ination had proved ineffective for the most part.
[Footnote omitted.] In order to remedy this, Con
gress, by the 1972 Act, amended the 1964 Act and
proscribed discrimination in most areas of federal
employment. [Citation omitted.] In general, it
may be said that the substantive anti-discrimina
tion law embraced in Title V II was carried over
and applied to the Federal Government. As stated
in the House Report,
“ ‘ To correct this entrenched discrimination in the
Federal service, it is necessary to insure the effec
tive application of uniform, fair and strongly en
forced policies. The present law and the proposed
statute do not permit industry and labor organisa
tions to be the judges of their own conduct in the
area of employment discrimination. There is no
reason why government agencies should not be
treated similarly. . . .’ H.R. Rep. No. 92-238, on
H.R. 1746, pp. 24-25 (1971).” Morton v. Mancari,
supra, 417 TJ.S. at 546-7 (emphasis added).

In addition, the following language of this Court’s
opinion in Alexander v. Gardner-Denver Go., supra,
is in substantial part applicable by analogy to federal
sector Title Y II actions such as the case at bar:

“ [Title Y II ] does, however, vest federal courts
with plenary power to enforce the statutory re
quirements. . . . * * *
“ . . . legislative enactments in this area have long
evinced a general intent to accord parallel or over
lapping remedies against discrimination. . . . Title
Y II provides for consideration of employment-
discrimination claims in several forums. [Cita
tions omitted.] And, in general, submission of a
claim to one forum does not preclude a later sub
mission to another.

* * *

“ The purpose and procedures of Title V II indi
cate that Congress intended federal courts to ex
ercise final responsibility for enforcement of Title
V I I ; deferral to arbitral decisions [here substitute
‘ federal agency or Civil Service Commission deci
sions’ ] would be inconsistent with that goal. Fur
thermore, we have long recognized that ‘ the choice
of forums inevitably affects the scope of the sub
stantive right to be vindicated. ’

* * *
. . the resolution of statutory or constitutional

issues is a primary responsibility of courts, and
judicial construction has proven especially neces
sary with respect to Title V II, whose broad lan
guage frequently can be given meaning only by
reference to public law concepts.

* * *
. . a [deferral] standard that adequately in

sured effectuation of Title V II rights in the arbi
tral [here substitute ‘ administrative’] forum
would tend to make arbitration [here substitute
‘ the administrative process’] a procedurally com
plex, expensive, and time-consuming process. And
judicial enforcement of such a standard would
almost require courts to make de novo determina
tions of the employees’ claims. It is uncertain
whether any minimal savings in judicial time and
expense would justify the risk to vindication of
Title V II rights. * * *
“ The federal court should consider the employ
ee’s claim de novo. The arbitral decision may be
admitted as evidence and accorded such weight as
the court deems appropriate.” 415 U.S. at 47-8,
56-7, 59-60 (footnotes omitted).

The procedural issue presented in the case at bar
should be considered in the context of the established
general principles set forth above. The substantive law

developed in private sector Title V II cases is now fully
applicable in the federal sector. The procedures fol
lowed in adjudicating federal sector cases must, there
fore, be attuned to the full effectuation of the substan
tive rights which are involved. There is no justification
for applying a double standard under Title V II and
favoring federal agency defendants over all other types
of defendants. The anomaly of such a double stand
ard is especially striking in the present context, where
the government opposes plenary judicial trials in fed
eral sector Title V II cases, while the Solicitor General
has successfully argued to this Court that a private
sector plaintiff must receive a plenary judicial trial
de novo regardless of prior adverse administrative and
arbitral determinations.6

The decision below sanctions a procedure for adjudi
cating federal sector Title V II cases that is wholly at
odds with the procedure that is applicable in the pri
vate sector. Yet, in the federal sector no less than in
the private sector, it cannot be gainsaid that “ Con
gress, in enacting Title V II, thought it necessary to
provide a judicial forum for the ultimate resolution
of discriminary employment claims. It is the duty of
the courts to assure the full availability of this forum.”

6 Brief for the United States as Amicus Curiae, Alexander v.
Gardner-Denver Go., No. 72-5847, October Term, 1973. Similarly,
the government takes the position that class actions and class-wide
relief are unavailable as a matter of law in federal sector Title
VII cases (e.g., Brief for Appellees, at pp. 49-64, Swain v. Callo
way, 5th Cir. No. 75-2002), while the Solicitor General has suc
cessfully argued to this Court for a diametrically opposite result
in the private sector (Brief for the United States and the Equal
Employment Opportunity Commission as Amicus Curiae, at pp.
17-33, Albemarle Paper Co. v. Moody, Nos. 74-389, 74-428, October
Term, 1974).

Alexander v. Gardner-Denver Go., supra, 415 U.S. at
60 n.21.

B. The Express Language of Amended Title VII Provides for the
Same Plenary Judicial Proceedings in Federal Sector Cases
As in All Other Cases.

Prior to March 24, 1972, Title Y II of the Civil
Rights Act of 1964 did not provide for suits against
federal government defendants. Title Y II as amended
by the Equal Employment Opportunity Act of 1972
now provides a right to file a civil action against fed
eral sector defendants, and explicitly states that the
civil action is governed by the same judicial proce
dures as those which control civil actions against pri
vate sector and state and local government defendants.
This statutory language and structure is of crucial
importance to the issue presented in the case at bar.

1. The Unitary and Interrelated Statutory Structure

The portion of amended Title Y II which creates and
describes a right to sue federal government defendants
—subsection 717(c), 42 U.S.C. § 2000e-16(c)—provides
that at certain specified stages in the administrative
enforcement procedure (to be discussed infra), a com
plainant

“ . . . if aggrieved by the final disposition of his
complaint, or by the failure to take final action
on his complaint, may file a civil action as pro
vided in section 706. . . . ”

Section 706 is the portion of Title Y II which details
the procedures to be followed in civil actions against
private sector (and state and local government) de
fendants. In addition, subsection 717 (d ) of Title Y II,

42 U.S.C. § 2000e-16(d), which further describes the
judicial procedures that are to control civil actions
brought against federal agencies, reads as follows:

“ The provisions of section 706(f) through (k ), as
applicable, shall govern actions brought hereun
der. ’ ’

As will now be shown, a review of the portions of the
statute to which subsections 717(c) and 717(d)
are specifically cross-referenced—subsections 706(f)
through (k )—provides compelling support for the con
clusion that civil actions against federal government
defendants are to proceed in the same manner as civil
actions against all other kinds of defendants, and are
to include a plenary judicial trial of the plaintiff’s
allegations. All three courts of appeals which have
embarked upon a reasoned analysis of the statutory
language have arrived at this conclusion. Sperling v.
United States, 515 F.2d 465, 474-7 (3rd Cir. 1975),
pet for cert, pending, No. 75-247; Caro v. Schultz, 521
F.2d 1084, 1087-8 (7th Cir. 1975) ; Hockley v. Roude-
bush, 520 F.2d 108,118-122 (D.C. Cir. 1975). The Third
Circuit has justly observed that the statutory language
“ hardly admits of any other interpretation.” Sperling
v. United States, supra, 515 F.2d at 475.

Subsection 70 6 (f)(3 ), 42 U.S.C. § 2000e-5(f) (3),
provides for district court jurisdiction of “ actions
brought under this title.” Subsection 70 6 (f)(4 ), 42
U.S.C. § 2000e-5(f) (4), provides that when such an
action is filed

‘ ‘ It shall be the duty of the chief judge of the dis
trict . . . in which the ease is pending immediately
to designate a judge in such district to hear and
determine the case. In the event that no judge in

the district is available to hear and determine the
case, the chief judge . . . shall certify this fact to
the chief judge of the circuit . . . who shall then
designate a district judge or circuit judge of the
circuit to hear and determine the case.” (Empha
sis added.)

Subsection 70 6 (f)(5 ), 42 U.S.C. § 2000e-5(f) (5), goes
on to provide that

“ It shall be the duty of the judge designated pur
suant to this subsection to assign the case for
hearing at the earliest practicable date and to
cause the case to be in every way expedited. I f
such judge has not scheduled the case for trial
within one hundred and twenty days after issue
has been joined, that judge may appoint a master
. . . .” (Emphasis added.)

Subsection 706(g), 42 U.S.C. §2000e-5(g), which au
thorizes the awarding of certain types of relief, pro
vides that

“ 1 / the court finds that the respondent has inten
tionally engaged in or is intentionally engaging
in an unlawful employment practice . . . the court
may enjoin the respondent . . . and order such
affirmative action as may be appropriate . . . .”
(Emphasis added.)

Subsection 706(j), 42 U.S.C. §2000e-5(j), makes the
district court’s disposition of the action appealable to
the appropriate court of appeals under 28 U.S.C.
§§ 1291, 1292. And finally, subsection 706(k), 42 U.S.C.
§ 2000e-5 (k ) , provides that

“ In any action or proceeding under this title the
court, in its discretion, may allow the prevailing
party, other than the Commission or the United
States, a reasonable attorney’s fee as part of the
costs, and the Commission and the United States

shall be liable for costs the same as a private per
so n ” (Emphasis added.)

The language of these sections—which, under sub
section 717(d), “ shall govern” federal sector civil
actions—clearly indicates that the plaintiff in a Title
V II action against a federal agency is generally en
titled to a plenary judicial proceeding, including dis
covery and a full evidentiary hearing, regardless of
the status of the administrative record. This is, of
course, the law with respect to Title Y II actions
against private sector defendants, which are de novo
proceedings, regardless of the scope or outcome of
prior administrative or arbitral proceedings. McDon
nell Douglas Corp. v. Green, 411 U.S. 792 (1973) ;
Alexander v. Garnder-Denver Go., 415 U.S. 36 (1974).7

7 It is true, of course, that subsection 717(d) says that subsec
tions 706(f) through (k) shall govern “ as applicable.” But as a
review of these subsections makes clear, that phrase merely covers
the fact that portions of certain subsections such as those dealing
with the Equal Employment Opportunity Commission (EEOC)
and the Attorney General— e.g., subsections 706 (f)(1 ), 706( i ) , 42
U.S.C. §§ 2000e-5(f) (1), 2000e-5(i)— are obviously not applicable
to actions against the federal government. To read more than this
into the phrase “ as applicable” would render subsection 717(d)
meaningless.

While the government has in the past placed great reliance on
the phrase “ as applicable” in relation to the present issue, this
does not alter the fact that such reliance is, for the reason just
stated, wholly lacking in plausibility. For an extended discussion
of the “ as applicable” argument which the government has ad
vanced in the past, see, Hackley v. Roudebush, supra, 520 F.2d at
119-122; see also, id., 520 F.2d at 170 (Leventhal, J., concurring).

It is relevant here to note that for more than three years after
the effective date of the 1972 amendments, the government took
the position that the amendments do not authorize recovery of
attorneys’ fees by successful plaintiffs in federal sector Title VII
cases. This position was based on the “ as applicable” argument.
The government has, however, now abandoned this position, and

2. The Provision of the Some Civil Action in Significantly
Different Circumstances

The foregoing analysis is further buttressed by a
review of the various stages in the administrative en
forcement procedure at which the statute gives the
complainant the option to file a civil action. Subsec
tion 717(c) of Title V II, 42 U.S.C. §2000e-16(c), and
the Civil Service Commission’s implementing regu
lations, 5 C.F.R. §§713.201, et seq., provide that an
employee or applicant for employment who has filed
an administrative complaint with his agency may file a
civil action in federal district court in any of the fol
lowing six basic circumstances:

1. i f 180 days have elapsed since the filing o f the
administrative complaint and the agency has
not taken final action on the complaint (whe
ther or not a hearing has been held) ; 42 U.S.C.
§ 2000e-16(c); 5 C.F.R. § 713.281(b);

2. within 30 days of a rejection or cancellation
of the complaint; 42 U.S.C. § 2000e-16(c) ; 5
C.F.R. §713.215;

3. within 30 days of receipt o f notice of final
agency action on the complaint without a hear
ing; 42 U.S.C. § 2000e-16(e) ; 5 C.F.R. §§713.-

has acknowledged that subsection 706 (k) is applicable in civil
actions under subsection 717(e). This change of position was ex
plained in part as follows: “ The application of § 2000e-5(k) to
the 1972 amendments requires inferences and implications to be
drawn to confer upon it the specificity that the law requires. At
the same time, however, I recognize that unless such clearly in
tended inferences be drawn, the inclusion of subsection 5(k) within
the ambit of § 2000e-16(d), might render such inclusion without
purpose or effect. These considerations have weighed heavily in
my decision.” Letter from Acting Assistant Attorney General
Irving Jaffe to Senator John V. Tunney, May 6, 1975, published
in CCH Employment Practices Guide, New Developments ft 5327.

217(b)(3 ), 217(c), 221(b)(1), 221(b)(3),
281 (a );

4. within 30 days of receipt of notice of final
agency action on the complaint following a
hearing; 42 U.S.C. § 2000e-16(c); 5 C.F.R,
§§713.217(b)(2), 221(b)(2 ), 281(a);

5. i f 180 days have elapsed since the filing of an
appeal from the final agency action (with or
without a hearing) to the Civil Service Com
mission and the Commission has not taken final
action on the appeal; 42 U.S.C. §2000e-16(c) ;
5 C.F.R. §§ 713.231(a), 281(d) ; or

6. within 30 days of receipt of notice of final Civil
Service Commission action on an appeal from
the final agencv action (with or without a hear
ing) ; 42 U.S.C. § 200Qe-16(c) ; 5 C.F.R. §§ 713.-
231(a), 281(c).

It should be noted that even the above categorization
is in fact an oversimplification, since circumstances 1,
5 and 6 can be subdivided into two different categories
depending on whether an administrative evidentiary
hearing has been held; and it should be noted that in
all cases the question of whether such a hearing is held
is completely at the option of the complainant. 5
C.F.R. §§ 713.217(b), 713.221(b). It should also be
noted that the scope and nature of the agency’s in
vestigation of a complainant’s allegations wdiere no
administrative hearing is held is completely controlled
by the agency; and that even where the complainant
elects to proceed to an administrative hearing, he has
no rights to discovery comparable to those provided
by the Federal Rules of Civil Procedure. 5 C.F.R.
§§ 713.216, 713.218.8

8 In the case at bar, petitioner is in the procedural posture repre
sented by the first subdivision of circumstance 6: she invoked the

It is immediately apparent from the six-category
analysis set forth above that the only statutory pre
requisite to maintaining a civil action common to all
of the six circumstances listed is the filing of an ad
ministrative complaint; neither an agency or CSC de
cision, nor an administrative hearing, is a precondi
tion to invocation of the judicial process. The language
of Section 717 gives the federal employee or applicant
for employment the right to invoke the judicial process
in each of circumstances 1-6 and their subdivisions.
It is highly significant that the statute and the CSC
regulations make absolutely no distinction between
the nature of the judicial proceedings afforded in the
different circumstances. In each circumstance the civil
action is simply “ governed” by subsections 706(f)
through (k ). 42 U.S.C. § 2000e-16(d). Since no dis
tinctions are made among the rights of plaintiffs who
are in different circumstances, the judicial process
contemplated must be the same in all eases. And since
no explicit restriction on the judicial process is stated
in the statute, the process is impliedly unrestricted.

In some of the circumstances enumerated anything
less than a plenary judicial trial would be plainly un
thinkable. For example, in circumstance 1 the plaintiff
files his civil action after 180 days have elapsed with
no final agency action on the initial administrative
charge. It may be that the agency’s investigation has
not even been commenced; or there may have been
an investigation but no CSC-appointed examiner’s
hearing; or there may have been a hearing but no
examiner’s findings; or there may have been a hearing

district court’s jurisdiction after a decision by the Civil Service
Commission on her appeal from a final agency decision with a
hearing.

with findings hut no final agency decision. In the first
two eases, due process would clearly require the dis
trict court to hold an evidentiary hearing. In the third
case, the absence of any findings by the officer who
heard testimony would also dictate a new hearing
before a judge who would make his own findings. In
the fourth ease there would at least be a record and
findings for the judge to review. But regardless of
the fact that each of these four cases could potentially
arise within the confines of circumstance number 1,
the statute draws no distinctions concerning the treat
ment to be accorded “ civil actions” filed in the various
cases described. Since a plenary trial is obviously re
quired in the first three cases, it follows that it is
required in the fourth and in other cases as well. In
deed, if Congress had intended that judicial proceed
ings under the 1972 amendments be limited to a “ re
view of the record,” it would certainly not have au
thorized suits in cases where there is no record to
review.

As previously noted, the statute also contemplates
situations other than those just described, i . e suit
after final agency action, after final CSC action, and
after the CSC has failed to render a decision within one
hundred eighty (180) days. Each situation may or may
not have involved an evidentiary hearing with findings.
Yet despite the obvious differences among these situa
tions, the statute makes no distinctions and the scope
of the employee’s “ civil action” is not restricted under
any of the various circumstances. Title Y II is a rem
edial statute and the courts may not engraft upon it
restrictions which it does not itself impose. McDonnell
Douglas Gorp. v. Green, supra, 411 II.S. at 798-9. It
follows that the “ civil action” to which a plaintiff is

entitled is, as the statutory language so clearly indi
cates, a plenary judicial proceeding, including presen
tation of the case to a district judge, who will hear and
determine the case after discovery and a trial on the
merits, and grant whatever relief is appropriate in
light of his findings.9
G. The Legislative History of Amended Title ¥11 Compels the

Conclusion That Federal Sector Cases Are to Be Conducted
in the Same Manner As All Other Cases.

The legislative history of the 1972 amendments to
Title V II affirmatively indicates that Congress did not
intend to limit the judicial function in federal sector
Title Y II litigation to review of an administrative
record, but intended to grant federal sector plaintiffs
the same rights as private sector litigants, including
the right to a full evidentiary hearing in district court.

9 Where no administrative evidentiary hearing has been held
and the administrative decision is based on an “ investigative file”
(5 C.F.R. § 713.216), the very term “ trial de novo” is an obvious
misnomer for the result here advocated. In such cases, a plenary
judicial trial will be the first “ live” , non-paper proceeding to
occur. It is interesting to note, therefore, that in the majority of
complaints that are administratively processed, no hearing is held.
U.S. Comm’n on Civil Rights, The Federal Civil Bights Enforce
ment Effort—1974, Yol. V, “ To Eliminate Employment Discrimi
nation” (July, 1975), at p. 76 n.257.

This is not to suggest, of course, that the term “ trial de novo”
is appropriate even where, as in the case at bar, an administrative
hearing has been held. For such a hearing is by no means the
equivalent of a judicial trial. See, Hackley v. Roudebush, supra
520 F.2d at 137-141. But the point here is that the statute makes
no distinctions between cases where an administrative hearing has
been held and those where no administrative hearing has been held;
and that, ultimately, the question presented by the ease at bar is
controlled by considerations far broader than whether an admin
istrative hearing has been held, or whether the administrative pro
cedure is or is not efficaciously designed. See, Hackley v. Roude
bush, supra, 520 F.2d at 169-172 (Leventhal, J., concurring).

Indeed, as will be shown infra, at many points in the
legislative history of the 1972 amendments the draft
legislation granted federal sector litigants not less, but
more extensive judicial rights than private sector liti
gants, who were in certain circumstances to be limited
to review in a court of appeals of an EEOC record. In
the legislation as finally enacted, however, all differ
ences in judicial procedures were eliminated, and pri
vate sector and federal sector litigants were, as shown
in Argument 1 (B ), supra, covered by the same civil
action procedures in all circumstances. The 1972
amendments as finally enacted thus implement the
clear purpose evinced by the legislative history taken
as a whole: to grant the same treatment in the courts
to all Title V II litigants, in the private sector, the
state and local government sector, and the federal
sector.

The Senate Committee Report on the new subsec
tion 717(c) authoritatively states the legislative pur
pose behind the creation of a right of action under
Title V II in the federal sector:

“ Aggrieved employees or applicants will also have
the full rights available in the courts as are
granted to individuals in the private sector under
Title V II .” S. Rep. No. 92-415, 92d Cong., 1st
Sess. at 16 (1971); Subcommittee on Labor,
Senate Committee on Labor and Public Welfare,
Legislative History of the Equal Employment Op
portunity Act of 1972, 92d Cong.,_ 2d Sess. (Com
mittee Print, 1972) [hereinafter cited as History],
at 425 (emphasis added).

This congressional equation of the rights of federal
and private sector plaintiffs is crucial, since private
sector plaintiffs who have met the jurisdictional pre

requisites to maintenance of a civil action are entitled
to a full evidentiary hearing in district court, regard
less of the outcome of prior administrative or arbitral
proceedings. McDonnell Douglas Corp. v. Green, 411
TJ.S. 792 (1973) ; Alexander v. Gardner-Denver Co.,
415 TJ.S. 36 (1974).

In what follows, petitioner sets forth her analysis of
the legislative history of the 1972 federal sector amend
ments. In addition, petitioner respectfully requests
that the Court refer to the exhaustive analysis of the
District of Columbia Circuit in Hackley v. Roudebusk,
520 F.2d 108,122-148 (D.C. Cir. 1975), where the legis
lative history is “ set out at length in Judge W right’s
opinion in order to present the full picture Id.,
520 F.2d at 170 (Leventhal, J., concurring).10 The
Hackley opinion is worthy of the Court’s attention
both because it explores all details of the legislative
history with meticulous care, and because it discusses
the various arguments that the government has in the
past advanced in support of its contrary interpretation.

1. The Evolution of the Final 1972 Legislation, and the Structure
of the Other Proposals That Were Considered

Prior to the 1972 amendments, Title Y I I did not
apply to federal employees. Congress had however
previously declared it to be “ the policy of the United
States to insure equal employment opportunities for

“ The Hackley court unanimously endorsed Judge W right’s
analysis of the legislative history. Judges Leventhal and Davis
deemed it unnecessary to discuss the empirical question of the
recent performance of the Civil Service Commission, and did not,
therefore, join in the portion of Judge Wright s opinion which
dealt with that question. Id., 520 F.2d at 169-172.

Federal employees without discrimination because of
race, color, religion, sex, or national origin. . . . ” 5
TJ.S.C. § 7151. The primary responsibility for imple
menting this policy prior to the 1972 amendments to
Title Y II lay with the Civil Service Commission
(CSC) under Executive Order 11246 (1965), later
superseded by Executive Order 11478 (1969).

The CSC’s efforts had proven to be utterly inade
quate. “ [T]he mechanism for enforcing longstanding
Executive Orders forbidding Government discrimina
tion had proved ineffective for the most part.” Morton
v. Mancari, 417 TT.S. 535, 546 (1974) (footnote omit
ted). Minorities and women continued to be vastly
underrepresented or underemployed in many federal
agencies. As the House Committee on Education and
Labor reported in June 1971, the CSC was responsible
for a “ critical defect” in the federal government’s
efforts to implement a policy of equal employment
opportunity. The administrative process for investi
gating and resolving discrimination complaints—a
process which was, then as now, devised and overseen
by the CSC11—actually “ impeded rather than ad
vanced” the goal of eliminating discrimination, and

11 Detailed CSC regulations for processing complaints of dis
crimination which were quite similar to the regulations now in
effect were already in existence three years prior to the 1972 amend
ments. The regulations were expanded somewhat after the amend
ments, to include, for example, provisions concerning the right to
sue provided by the amendments, clarifying the authority to award
certain types of relief, and allowing third party allegations (but
recognizing no right to sue on the basis of such allegations). In
most other respects, the regulations are basically unchanged. Com
pare 5 C.F.R. Part 713, 34 Fed. Reg. 5367 (Mar. 19, 1969), as
amended at 34 Fed. Reg. 14023 (Sept. 4, 1969) with 5 C.F.R.
Part 713, 37 Fed. Reg. 25669 (Dec. 2, 1972). See also, Hackley v.
Boudebush, supra, 520 F.2d at 137-142.

led to “ a general lack of confidence in the effectiveness
of the complaint procedure on the part of Federal
employees.” 12 Under the CSC regulations—then as
now—the supposedly independent hearing examiner’s
findings and decision on a discrimination complaint
were merely recommendations to the offending agency,
which in turn would render the final decision itself.
Thus, the agency acted as both defendant and judge.13

Successful appeals to the CSC’s Board of Appeals
and Review were understandably rare.14 * The House
Committee found that

“ . . . the Civil Service Commission has been
plagued by a general lack of expertise in recogniz
ing and isolating the various forms of discrimina
tion which exist in the system.. . . The Civil Service
Commission seems to assume that employment dis
crimination is primarily a problem of malicious
intent on the part of individuals. It apparently has
not recognized that the general rules and proce
dures it has promulgated may actually operate to
the disadvantage of minorities and women in sys
temic fashion.” House Report at 24; History at 84.

Lack of expertise was not the only explanation for the
CSC’s failures, for, as the Committee aptly noted:

12 H.R. Rep. No. 92-238, 92d Cong., 1st Sess. at 23-4 (1971)
(hereinafter cited as House Report) ; History at 83-4; cited in
part in Morton v. Mancari, supra, 417 U.S. at 546 n.22.

13 The continued workings of this process are vividly illustrated
by the case at bar, in which the hearing examiner found that peti
tioner had been discriminated against, and the defendant agency
simply rejected the examiner’s adverse findings. (Pet. App. la-
17a, 18a-21a).

14 In the case at bar, the Board of Appeals and Review affirmed
the defendant agency’s decision against petitioner. (Pet. App.
21a-29a).

“ The system, which permits the Civil Service
Commission to sit in judgment over its own prac
tices and procedures which themselves may raise
questions of systemic discrimination, creates a
built-in conflict-of-interest.” Rouse Report at 24,
History at 84.

In the face of these findings, the House Committee
favorably reported the “ Hawkins B ill” (named after
its chief sponsor, Representative Hawkins), which pro
hibited discrimination in federal hiring and promotion,
and authorized the Equal Employment Opportunity
Commission (EEOC), rather than the CSC, to enforce
that prohibition.15

The Hawkins Bill also granted the EEOC power to
issue cease and desist orders in private sector actions,
as well as “ authority to enforce” by rule, regulation,
and order, the federal sector anti-discrimination pro
visions of Title V II .16 Federal and private sector par
ties aggrieved by any order of the EEOC were entitled
to bring actions in federal court. Hoivever, the scope of
the judicial proceedings after an EEOC hearing was
much more limited in private sector cases than in fed
eral sector cases.

In private sector cases, under the Hawkins Bill,
judicial review after an EEOC hearing was governed
by amended Section 706. Such review was in a United
States Court of Appeals; and the findings of the Com
mission were conclusive if supported by substantial

15 H.R. 1746, 92d Cong., 1st Sess. (1971); History at 32-60;
excerpted in Hackley v. Boudebush, supra, 520 F.2d at 159-163.

16 H.R. 1746, § 11, 92d Cong., 1st Sess. (1971), proposing to add
new subsection 717(b) to the Civil Rights Act of 1964; History
at 59; Hackley v. Boudebush, supra, 520 F.2d at 163.

evidence.17 This would have represented a change in
the existing law, which clearly granted all private sec
tor employees the right to a plenary judicial hearing.
Under the Hawkins Bill the judicial process could also
be invoked in private sector cases without an EEOC
hearing: for example, when the EEOC dismissed a
complaint without a hearing for lack of reasonable
cause, or when the EEOC failed to take action on a
complaint within 180 days of its filing. Private sector
actions in these circumstances were governed by a new
Section 715, which provided for a civil action in federal
district court. Since there would be no administrative
record to review in these cases, the judicial process in
these circumstances was not limited to review of an
administrative record.18

In federal sector cases, under the Hawkins Bill, all
judicial proceedings, whether or not there had been an
EEOC hearing, were governed by Section 715, the
section applicable to private sector actions in which
there had been no EEOC hearing.19 Under the Hawkins
Bill, therefore, federal sector actions were not limited
to a review of the administrative proceedings in any
circumstances. All federal sector actions were plenary
judicial proceedings in the district court.

17 H.R. 1746, §4, 92d Cong., 1st Sess. (1971), proposing to
amend Section 706 of the Civil Eights Act of 1964; History at
33-44; excerpted in Hackley v. Roudebush, supra, 520 F.2d at
159-161.

18 H.E. 1746, § 8 ( j) , 92d Cong., 1st Sess. (1971), proposing to
add new Section 715 to the Civil Eights Act of 1964; History at
54-8; excerpted in Hackley v. Roudebush, supra, 520 F.2d at 162-3.

10 H.E. 1746, §11, 92d Cong., 1st Sess. (1971), proposing to
add new subsection 717(d) to the Civil Eights Act of 1964; His
tory at 59; Hackley v. Roudebush, supra, 520 F.2d at 163.

In the House, the provision of the Hawkins Bill
granting the EEOC cease and desist powers met con
siderable resistance. The House adopted the “ Erlen-
born B ill” (sponsored by Representative Erlenborn)
as an amendment to the Hawkins Bill in the nature of
a complete substitute. The Erlenborn substitute did
not provide EEOC with cease and desist powers, and
did not cover federal employees at all.20

On the Senate side, the “ Williams B ill” (named
after Senator Williams, its chief sponsor) was the
equivalent of the Hawkins Bill.21 The amended version
of the Williams Bill which emerged from the Senate
Committee on Labor and Public Welfare (the “ Com
mittee B ill” ) 22 * contained essentially the same provi
sions— and the same dichotomies— regarding federal
sector and private sector actions which had been con
tained in the Hawkins Bill. Under the Committee Bill,
however, the CSC was substituted for the EEOC as the
administrative agency with enforcement authority in
the federal sector. Under the Committee Bill, the
powers of the CSC were the same as those of the EEOC
in the federal sector under the Hawkins Bill, and the
provisions for judicial review of CSC action were the
same as those for review of EEOC federal sector ac
tion under the Hawkins Bill. Federal sector plaintiffs
had the option to enter court after final agency or CSC
action. All federal sector actions were plenary judicial

20 H.R. 9247, 92d Cong., 1st Sess. (1971); History at 141-7;
amendment in nature of substitute agreed to, History at 311-314;
see, House Bill as referred to Senate, H.R. 1746, 92d Cong., 1st
Sess. (1971); History at 326-332.

21 S. 2515, 92d Cong., 1st Sess. (1971) ; History at 157-187.
22 S. 2515, 92d Cong., 1st Sess. (1971); History at 344-409; ex

cerpted in Hackley v. Roudebush, supra, 520 F.2d at 163-8.

proceedings in the district court, governed by the same
provisions that governed private sector actions without
an EEOC hearing; federal sector actions, unlike pri
vate sector actions, were not limited to a review of the
administrative proceedings in any circumstances.23

Since the Committee Bill gave the EEOC cease and
desist powers in the private sector, it, like the Hawkins
Bill in the House, encountered a stiff floor fight, and
also a filibuster which was eventually terminated by
cloture. Ultimately, the EEOC private sector cease
and desist authority was dropped, but the Committee
B ill’s federal sector provisions were retained. Under
the finally enacted legislation24—as under the Hawkins
Bill and the Committee Bill—the scope of judicial pro
ceedings in federal sector cases was not restricted, and
was governed bĵ the private sector civil action provi
sions affording a plenary judicial trial.25 26 Thus the con
tinuation of responsibility for the administrative en
forcement of federal sector Title Y II policy in the
CSC rather than the EEOC—under the Committee Bill
and the legislation as finally enacted28—in no way
limited judicial review of federal agency action. The
CSC under the Committee Bill had the same respon
sibilities and powers as the EEOC had in the federal
sector under the Hawkins and Williams bills; and as
noted above, federal sector actions tvere governed by

23 S. 2515, §§ 4, 11, 92d Cong., 1st Sess. (1971), proposing to
amend the Civil Rights Act of 1964 by renumbered subsections
706(q)-(w ) and new subsection 717 (d ); History at 390-393, 408;
Hackley v. Eoudebush, supra, 520 F.2d at 166-8.

24 Pub. L. 92-261 (Mar. 24, 1972); History at 1911-1921. [See
also, Title V II as amended, History at 1892-1910.]

25 42 U.S.C. §§ 2000e-5(f)-(k), 2000e-16(d).
26 42 U.S.C. § 2000e-16(b).

exactly the same provisions under all three hills,
namely, the district court civil action provisions which
did not limit the court to revie-w of the administrative
record. Again, as explained in detail in Argument
1 (B ), supra, it is these same provisions which govern
federal sector actions—as well as private sector and
state and local government sector actions—under the
1972 amendments as finally enacted.

2. The Authoritative Statements of Legislative Intent

Turning now from the foregoing technical analysis
to the larger perspective, it is clear that the unitary
structure of amended Title Y II—under which all civil
actions are governed by the same judicial procedures
—fully implements the basic congressional purpose
with respect to the federal sector. That purpose, con
sistently articulated throughout the hearings, reports,
and debates on the 1972 amendments, was to place fed
eral employees and applicants on a par with employees
and applicants in the private sector.

Thus the House Committee stated that
“ . . . there can exist no justification for anything
but a vigorous effort to accord Federal employees
the same rights and impartial treatment which the
law seeks to afford employees in the private sec
tor.” House Report at 23; History at 83 (empha
sis added).

The Senate Committee report was to the same effect:
“ Aggrieved [Federal] employees or applicants
will also have the full rights available in the courts
as are granted, to individuals in the private sector
under title V II .” S.Rep. Ho. 92-415, 92d Cong.,

1st Sess. at 16 (1971) ; History at 425 (emphasis
added).

Senator Dominick and Senator Cranston were chiefly
responsible for the Committee compromise which gave
administrative enforcement responsibility to the CSC
rather than the EEOC while guaranteeing the federal
employee the right to a judicial determination of his
complaint. Senator Dominick supported Title Y II
protection for federal employees, but opposed (ulti
mately with success) giving the EEOC cease and de
sist powers in the private sector because he felt that
the courts would provide a fairer and more efficient
forum than an administrative agency. He stated his
view of the proper relationship between private sector
cases and eases against federal, state and local govern
ment defendants as follows:

“ [X]t strikes me that one of the first things we
have to do is at least to put employees holding their
jobs, he they government or private employees, on
the same plane so that they have the same rights,
so that they have the same opportunities, and so
that they have the same equality within their jobs,
to make sure that they are not being discriminated
against and have the enforcement, investigatory
procedure carried out the same way.” 118 Cong.
Rec. 594 (Jan. 20, 1972) ; History at 680-681 (em
phasis added).

And in the following passage, Senator Dominick suc
cessfully urged defeat of cease and desist and limited
judicial review in the private sector, and discussed the
effect of the Committee compromise in the federal
sector:

“ [Under Section 717 and other provisions of the
Committee compromise] every governmental

agency and every employee of a governmental
agency, State, local, or Federal, has Ms rights in
the Federal courts. Under [S. 2515, granting
EEOC cease and desist power and limiting review
in private civil actions] . . . you do not have that
right if you are a private employee or a private
employer. I, for the life of me, cannot see why we
should discriminate against that one group. It
seems to me that where we are dealing with job
discrimination, it makes no difference what type
of job you have, you should he entitled to the same
remedies as anyone else in that situation has, and
this is the right to have the Federal court deter
mine whether or not you have been discriminated
against.'’ ’’ 118 Cong. Rec. 3967 (Eeb. 15, 1972);
History at 1527 (emphasis added).

The record of Senate debate is permeated with Senator
Dominick’s restatement of this need for identical treat
ment of all employees.27

The House Committee and Senate Committee state
ments, and remarks by Senator Dominick, are the most
authoritative expressions of the basic congressional
intent with respect to the 1972 amendments. In view of
the pivotal role played by Senator Dominick 28 with
respect to the matters relevant here, and the fact that
the amendments as enacted clearly constitute an adop
tion of the viewpoint which he advocated on these mat
ters, Senator Dominick’s comments are plainly to be
accorded considerable weight.

The weight to be attached to certain statements by
Senator Cranston and Senator Williams, on the other

27118 Cong. Rec. 595 (Jan. 20, 1972), 698 (Jan. 21, 1972), 942,
943 (Jan. 24, 1972), 3389 (Feb. 9, 1972), 3809 (Feb. 14, 1972);
History at 683, 695, 833, 835, 1440-1441, 1482.

28 See, HacTcley v. Boudehush, supra, 520 F.2d at 129-131, 144-6.

hand, has been the subject of controversy. While this
controversy is understandable, it is, in petitioner’s
view, not of controlling significance, because of the
overwhelming weight of the authoritative legislative
history already described.

Senator Cranston made the following statement,
which supports petitioner’s position in the case at bar,
with respect to the precise legal effect of the Commit
tee compromise in the federal sector that he and Sen
ator Dominick co-authored:

“ As with other cases brought under Title Y II of
the Civil Rights Act of 1964, Federal district court
review would not be based on the agency and/or
CSC record and would be a trial de novo. ” t lS -
Cong. Rec. 4929 (Feb. 22,1972) (emphasis added).

The question of the weight that may be attached to
this remark in view of the manner in which it was
originally reported in the Congressional Record is
discussed in the margin.29

29 Senator Cranston’s remark as originally reported in the daily
edition of the Congressional Record [118 Cong. Rec. S 2287 (daily
ed., Feb. 22, 1972); History at 1744] was, due to a transposition
of the word ‘ not’, to the opposite effect from the remark as quoted
in the text, supra. Senator Cranston spoke to this matter, and
corrected the Record, ten months after the 1972 amendments be
came effective. 119 Cong. Rec. S 1219 (daily ed., Jan. 23, 1973).
The Third Circuit and the District of Columbia Circuit, while
agreeing with the corrected version of Senator Cranston’s com
ment, have not relied upon it. Sperling v. United States, 515 F.2d
465, 480-481 n.72 (3rd Cir. 1975), pet. for cert, pending, No. 75-
247; IlacMey v. Roudebush, supra, 520 F.2d at 133-4, 147-8. Peti
tioner submits, however, that the corrected version of the comment
is not wholly neutralized by its surrounding circumstances. First,
the uncorrected version of the comment is plainly inconsistent on
its face because it wrongly portrays the law under the Civil Rights
Act of 1964. Thus, Senator Cranston’s assertion that the Record,

Senator Williams made a number of statements
which are inconsistent with one another and even, in
the case of the following statement, internally incon
sistent :

“ Finally, written expressly into the law is a pro
vision enabling an aggrieved Federal employee to
file an action in TT.S. District Court for a review
of the administrative proceeding record after a
final order by his agency or by the Civil Service
Commission, if he is dissatisfied with that decision.
Previously, there have been unrealistically high
barriers which prevented or discouraged a Federal
employee from taking a case to court. This will no
longer be the case. There is no reason why a Fed
eral employee should not have the same private
right of action enjoyed by individuals in the pri
vate sector • and I believe that the committee has
acted wisely in this regard.” 118 Cong. Rec. 4922
(Feb. 22, 1972); History at 1727 (emphasis
added).

The reasons why no weight should be attached to this
and certain other comments by Senator Williams are
discussed in the margin.30

and not lie, was in error is the most plausible explanation of the
matter. Second, it appears to petitioner that the uncorrected ver
sion printed in the daily edition of the Record could not have
influenced the Senate vote on the federal sector amendments. That
vote took place on February 22, 1972— the same day that Senator
Cranston’s comments were made, and, it seems fair to assume,
before the daily edition of the Record for that date was printed
and available. 118 Cong. Rec. 4944 (Feb. 22, 1972) ; History at
1779.

30 The statement quoted in the text is internally inconsistent both
because the Committee Bill, as noted above, provided that all fed
eral sector actions were to be civil actions in the district court
rather than actions for review of administrative determinations in
the court of appeals; and because the Dominick amendment, elimi
nating cease and desist and court of appeals review in the private

Petitioner believes that Senator Cranston’s state
ment is an additional item which may properly be con
sidered to support her position, and that Senator W il
liams’ statements are so self--contradictory that they
may not properly be considered to detract from her
position. More importantly, however, the controversy
over the Cranston and Williams statements simply can
not obscure the clear thrust of the legislative history
taken as a whole and set forth supra. That legislative
history lends itself to only one fair interpretation: the
1972 amendments to Title V II were intended to give
federal victims of employment discrimination the same
civil action rights as private employees possess, includ
ing the right to a plenary judicial trial. This has been
the conclusion of the two courts of appeals which have
engaged in a detailed analysis of the legislative history.
HacJcley v. Roudebush, supra; Sperling v. United
States, supra. The opinion of the court of appeals in
the case at bar is devoid of any analysis in support of
its contrary conclusion.

sector and substituting plenary judicial proceedings in district
court, had already been adopted. Similarly, the reference to “ re
view of the agency proceedings” in one analysis of S. 2515 which
Senator Williams inserted into the record [118 Cong. Ree. 4923
(Feb. 22, 1972) ; History at 1730] is inconsistent in this respect
with the Williams Committee’s own report on Section 717 [S. Rep.
No. 92-415, 92d Cong., 1st Sess. at 16-17, 45-6 (1971); History at
425, 454-5], as well as with a section-by-section analysis of the
1972 amendments as finally enacted which Senator Williams in
serted into the record: “ The provisions of sections 706(f) through
(k), concerning private civil actions by aggrieved persons, are made
applicable to aggrieved Federal employees or applicants for em
ployment.” 118 Cong. Ree. 7169 (Mar. 6, 1972) ; History at 1851.
The Third Circuit and the District of Columbia Circuit have each
analyzed in detail, and properly rejected, Senator Williams ’ refer
ences to “ review of agency proceedings.” Sperling v. United States,
supra, 515 F.2d at 479-481, 480 n.71; Hackley v. Roudebush,
supra, 520 F.2d at 132-5, 146-7.

3. The Consistent Logic of the Final Legislative Product

The congressional intent to afford plenary judicial
proceedings in federal sector cases is perfectly consist
ent with the contemporaneous determination to main
tain the Civil Service Commission’s administrative role
in the federal sector. (See, 42 U.S.C. § 2000e-16(b)).
Congress intended that the courts would provide fed
eral sector litigants a full evidentiary hearing as a
check on the Civil Service Commission, just as it in
tended that the courts would provide private sector
litigants a full evidentiary hearing as a check on the
Equal Employment Opportunity Commission. The op
portunity for a full judicial hearing was provided in
both federal and private sector cases in part because
Congress expressly recognized that both CSC and
EEOC were inherently partisans, though partisans of
different standards. CSC was viewed as a partisan of
the federal employer, since it is responsible for the ap
proval of the very agency employment standards whose
lawfulness many Title Y I I complainants call into ques
tion. EEOC was viewed as a partisan of the private
employee, since it is the prosecutor of his case.

Thus the Senate Committee report on Section 717
states: 31

“ The Civil Service Commission’s primary respon
sibility over all personnel matters in the Govern
ment does create a built-in conflict of interest for

31 For further remarks regarding Civil Service Commission bias,
see Remarks of Rep. Fauntroy, 117 Cong. Rec. 32094-5 (Sept. 16,
1971), History at 269-271; and Remarks of Rep. Mink, 117 Cong.
Rec. 32105 (Sept. 16, 1971), History at 299. The “ built-in conflict
of interest” characterization is also contained in the House Report
at 24, History at 84, quoted supra, text at p. 34.

examining the Government’s equal employment
program for structural defects which may result
in a lack of true equal employment opportunity.

* * *
“ An important adjunct to the strengthened Civil
Service Commission responsibilities is the statu
tory provision of a private right of action in the
courts by Federal employees who are not satisfied
with the agency or Commission decision.” S. Rep.
No. 92-415, 92d Cong., 1st Sess. at 15-16 (1971);
History at 424-5.

This passage concerning the federal sector is pre
cisely analogous to a statement of Senator Dominick,
who described the difference between committing the
evidentiary proceeding in private sector Title V II liti
gation to EEOC and committing this function to a
federal court (which could appoint a special master)
in these terms: 32

“ [T]he latter preserves the impartiality of the
court, the jurisdiction of the court, and the integ
rity of the referees and examiners who have been
trained in that field. But if we assign [evidentiary
determinations] to the Commission, . . . the Com
mission is going to prosecute, investigate, and
hear the case, and then say to the court, ‘ OK, these
are our recommendations, which have the substan
tial force of evidence; you enforce them.’ ” 118
Cong. Rec. 3389 (Feb. 9, 1972) ; History at 1441.

Congress responded to concerns such as those ex
pressed by Senator Dominick and applied its response
to both private and federal sector actions: EEOC cease

32 For further remarks regarding EEOC partisanship, see Minor
ity Views on H.R. 1746, House Report at 58-9, History at 118-119;
Remarks of Senator Dominick, 118 Cong. Rec. 3966-7 (Feb. 15.
1972), History at 1524-1527.

and desist power was rejected, and amended Title Y II
provides for plenary court hearings (and the possible
appointment by the court of a special master) in both
federal and private sector proceedings. 42 IT.S.O.
§§ 200Ge-16(d) and 2000e-5(f) (5 ).33

The conclusion that Congress granted federal sector
litigants the right to a full evidentiary hearing in court
is also fully consistent with the purpose o f maintaining
an internal grievance procedure within the federal
government. Congress carefully provided in subsection
717(c) that prior to filing suit under Title Y II a fed
eral sector complainant must first file a formal com
plaint with his agency, and await an agency decision,
so that the agency will have an opportunity to put its
own house in order. As soon as the agency reaches a
decision, however, or permits 180 days to pass without
taking final action, this policy has been fulfilled, and
the complainant may proceed directly to court. I f the
complainant prefers first to proceed to further stages
in the internal grievance procedure, he is free to do
so; but no penalty attaches to such an election (so as
not to deter further resort to administrative proce
dures), and subsequent timely resort to a court action
still results in a plenary judicial trial. These conelu-

33 while the EEOC has never had enforcement powers, the CSC’s
enforcement powers pre-dated the 1972 amendments. The proposed
substitution of EEOC for CSC in the federal scetor was rejected.
The fact that no opposition was then raised to continued CSC en
forcement powers is fully consistent with the foregoing analysis.
The initial proponents of the 1972 amendments would have had no
occasion to object at this point to CSC enforcement powers, since
the legislation provided plenary judicial proceedings in federal
sector cases. The CSC, of course, wished to retain its powers; and
its pro-defendant bias would have precluded any fears that a
federal defendant would suffer from any lack of due process at
its hands.

sions are perfectly consistent with the dual policy of
preserving the internal grievance procedure but also
providing a judicial remedy.

D. The Lower Court Decisions under Amended Title VII May Be
Analyzed in Terms of Three Basic Categories.

I. Overview of the Cases

When the petition for certiorari was filed herein,
the rule advocated by petitioner was a minority posi
tion in the lower courts. At this writing, the lower
courts are evenly divided on the issue.

Three courts of appeals—the Third, Seventh, and
District of Columbia Circuits—have ruled that fed
eral sector Title Y II cases are, like all other Title V II
cases, to be conducted as plenary judicial proceedings.
Sperling v. United States, 515 F.2d 465 (3rd Cir.
1975), pet. for cert, pending, Ho. 7 5 - 2 4 7 ;Caro v.
Schultz, 521 F.2d 1084 (7th Cir. 1975) 35; Hackley v.
Ron debush, 520 F.2d 108 (D.C. Cir. 1975)36.

Three other courts of appeals—the Eight, Ninth,
and Tenth Circuits-—have rejected this approach,
and provided for less than plenary judicial proceed
ings. Salone v. United States, 511 F.2d 902 (10th Cir.
1975), pet. for cert, pending, No. 74-1600; Chandler v.
Johnson, 515 F.2d 251 (9th Cir. 1975), cert, granted
sub nom Chandler v. Roudebush, 44 U.S.L.W. 3200
(U.S., Oct. 6, 1975) (the case at bar)37; 11 aire v. Cal-

34 Accord, Ettinger v. Johnson, 518 F.2d 648 (3rd Cir. 1975).
35 See also, Adams v. Brinegar, 521 F.2d 129, 132-3 (7th Cir.

1975).
36 See also, Grubbs v. Butz, 514 F.2d 1323 (D.C. Cir. 1975).
37 Cf., Bowers v. Campbell, 505 F.2d 1155 (9th Cir. 1974) (de

cided under 42 U.S.C. § 1981).

loway, ------ F.24 ------ , 10 [CCII] EPD I ------ , 11
F.E.P. Cases 769, 8tb Cir. Nos. 74-2004, 75-1050, Nov.
17, 1975.

The other circuits have not yet ruled on the issue.38
However, a decision o f the Fifth Circuit on a related
issue39 strongly suggests agreement with petitioner’s
position on the issue in the case at bar:

“ . . . the instant federal employee suit is brought
under Title V II. The intent of Congress in enact
ing the 1972 amendments to that Act extending
its coverage to federal employment was to give
those public employees the same rights as private
employees enjoy.” Parks v. Dunlop, 517 F.2d 785,
787 (5th Cir. 1975) (footnotes omitted).40

38 In Fisher v. Brennan, 517 F.2d 1404 (6th Cir. 1975), the
court o£ appeals affirmed, without published opinion, the district
court decision in 384 F.Supp. 174 (E.D. Tenn. 1974). Petitioner
has examined the unpublished order of affirmance and the briefs
of the parties in this case. It is clear that the scope of review issue
was not raised in the court of appeals, and that the summary
affirmance does not constitute a ruling on the issue. Petitioner
assumes that respondents will not contend otherwise.

Similarly, it seems clear from the court of appeals’ opinion in
Johnson v. U.S. Postal Service, 364 F.Supp. 37 (N.D. Fla. 1973),
aff’d per curiam, 497 F.2d 128 (5th Cir. 1974), that the scope of
review issue was not raised in that appeal.

39 The availability in the federal sector of preliminary injunctive
relief under Drew v. Liberty Mutual Ins. Go., 480 F.2d 69 (5th
Cir. 1973).

40 In addition, it is noteworthy that the Fourth Circuit, in
ruling on another issue under the federal sector Title VII provi
sions, made reference to the 1972 amendments’ “ transfer of juris
diction from the executive to the judiciary” ; to “ a congressional
policy to make the courts the final tribunal for the resolution of
controversies over charges in discrimination” in federal employ
ment; and to the portion of the legislative history to the effect
that the amendments provide to federal sector plainiffs “ the full
rights available in the courts as are granted to individuals in the

Most of the published district court decisions are
cited in the petition for certiorari, and are not re
cited here. (Pet. 10 n.6, 10-12 n.7). Additional pub
lished district court cases holding in favor o f * 41 and
against42 plenary judicial proceedings are set forth in

private sector under Title V II .” Koger v. Ball, 497 F.2d 702, 706,
708-9 n.33 (4th Cir. 1974). The Solicitor General seems to have
expressed agreement with the Fourth Circuit’s analysis on the
issue which Koger addressed. Memorandum in Response to Petition
for Rehearing, at p. 4, Place v. Weinberger, No. 74-116 (October
Term, 1974).

41 Second Circuit: McHoney v. CaJJaway, 10 EPD If------ •, 11
F.E.P. Cases------ , E.D. N.Y., No. 74V-C-1729, Oct. 10, 1975.

Fourth, Circuit: Harris v. Ulanich, 10 EPD f[ 10,262 (E.D. Va.
1974); Chisholm v. U.S. Postal Service, 9 JtfPD ff 10,212, 11 F.E.P.
Cases 457 (W.D. N.C. 1975), appeal pending, 4th Cir. Nos. 75-2068,
75-2069.

Fifth Circuit: Jones v. Brennan, ------ F.Supp. ------ •, 10 EPD
ff------ , 11 F.E.P. Cases -------, N.D. Ga, Atl. Div., Civ. No. 19139,
Sept. 30, 1975; Keeler v. Hills, 10 EPD ff— — , 11 F.E.P. Cases
------ , N.D. Ga., Atl. Div., C l i Nos. C74-2152A, C74-2309A, Nov.
12, 1975. [Sylvester v. U.$ Postal Service, cited at Pet. 10 n.6,
is also reported at 393 F.Supp. 1334.]

Sixth Circuit: Williams v. fpmnessee Valley Authority, 10 EPD
if------ , 11 F.E.P. Cases — M.D. Tenn., C.A. No. 75-186-NA-CV,
Nov. 21, 1975. v ...

Ninth Circuit: Ellis v. Naval Aip^Rework Facility, 10 EPD
ffl0,257, 11 F.E.P. Cases 317 (N^T Cal. 1975), 10 EPD If 10.422,
11 F.E.P. Cases------ (N.D. CkcL 1975), 10 EPD If------ , 11 F.E.P.
Cases------ , N.D. Cal, No. C-73-1794-WHO, Nov. 4,-1975.

District of Columbia CircuityEarly v. Klassen, 10 EPD If------ ,
11 F.E.P. Cases-------, D.DMVC.A. N o. 75-153, Oct. 30, 1975.

42 Third Circuit: Warren v. Veterans Hospital, 382 F.Supp. 303
(E.D. Pa. 1974); McCreesh v. BePud/, 385 F.Supp. 1365 (E.D.
Pa. 1974). V

Fourth Circuit: Wright v. Nat’ l Archives and Records Service.
388 F.Supp. 1205 (D. Md. 1975^, cjtffpeal pending, 4th Cir. No.
75-1378.

the margin. In the five circuits where the courts of
api^eals have not yet ruled on the issue, the cases are
close to evenly divided.

2. The Three Different Rules Which Have Been Adopted

The cases in the lower courts may be analyzed in
terms of three basic categories. First, three courts of
appeals hold, with petitioner, that federal sector Title
Y I I cases are, like all other cases, to be conducted
as plenary judicial proceedings. Second,, one court of
appeals holds that such cases are to be conducted as
reviews of the administrative record pursuant to a
substantial evidence standard. Third, two courts of
appeals hold for a hybrid approach, in which the pri
mary focus is on review of the administrative record,
but in which the plaintiff may supplement the admin
istrative record upon a showing of necessity.

a. Plenary Judicial Proceedings

In the first court of appeals decision to hold for
plenary judicial proceedings, the Third Circuit con
cluded that

“ . . . it was Congress’ intent to provide an ag
grieved federal employee with as full a panoply
of remedies in the district court as those afforded
a private sector litigant. . . . W e hold therefore

La. 1975); Anderson v. Roudebush, 1(3 EfPD If 10,328 (S.D. Gfa.
1975).

Ninth Circuit: Jewell v. Middendorf JJKP.E.P. Cases 1110 (CD .
Cal. 1975). /

Tenth Circuit: Archuleta v. C alla w ay38YF.Supp. 385 (D.
Colo. 1974). " V

District of Columbia Circuit: Johnson v. Clot worthy, 10 EPD
ff 10,315 (D.D.C. 1975). X

that the statutory language of the Act, as well
as its legislative history, indicates a right to a
trial de novo in the district court when suit is
brought by an aggrieved federal employee pur
suant to § 717(e).” Sperling v. United States,
supra, 515 F.2d at 481.

Sperling was followed by the Seventh Circuit, which
noted that its conclusion was “ in accord with the
special regard that Congress has shown for those who
suffer discrimination in employment.” Caro v. Schultz,
supra, 521 F.2d at 1Q88.43 The Third and Seventh Cir
cuits were then joined by the District of Columbia
Circuit, which, in an encyclopedic opinion, unanimous
ly and resoundingly reversed the seminal district court
decision which had led numerous other courts astray on
this issue.44 The District of Columbia Circuit concluded

“ . . . that Congress intended to bestow on federal
employees the same rights in District Court—
including the right to a trial de novo—which it
had previously mandated for private sector em
ployees, and that the Federal Rules of Civil Pro
cedure are flexible enough to enable trial judges
to prevent such de novo trials from unduly
burdening the courts or substantially duplicating
agency proceedings.” Hackley v. RoudebusJi,
supra, 520 F.2d at 113 (footnote omitted).

It should be noted that none of the cases providing
for plenary judicial proceedings excludes the possi

43 The Seventh Circuit’s opinion noted that “ Because we are
choosing one of the views on which there is a conflict between
circuits, this opinion was circulated, before filing, to all judges of
this Court in regular active service. There has been no request for
a vote on a hearing en banc on this issue.” Icl., at 1088 n.6.

44Hackley v. Johnson, 360 F.Supp. 1247 (D.D.C. 1973), rev’d
sub nom Hackley v. Roudebush, supra.

bility of summary judgment being entered in some
eases. But only a real summary judgment, within
the ordinary and accepted meaning o f Fed.R.Civ.P.
56(c), would be possible, i.e., summary judgment in
a situation where “ there is no genuine issue as to any
material fact and . . . the moving party is entitled
to a judgment as a matter of law.” Sperling v. United
States, supra, 515 F.2d at 481-4; Caro v. Schultz, supra,
521 F.2d at 1089; 1Hockley v. Roudebush, supra, 520
F.2d at 157-8.45

b. Review Strictly Limited to the Administrative Record

The first court of appeals decision to reject plenary
judicial proceedings was also the first appellate de
cision on the issue. The Tenth Circuit held that

“ The complaints of the nature here considered
should be "handled as others [under the Civil
Service system], and if they reach the courts,
the procedure should be consistent with those
under 5 U.S.C. § 701 et seq.” Salone v. United
States, supra, 511 F.2d at 904.

Salone represents the second category of decisions re
ferred to above, under which the standard of the pre-

45 In some situations the administrative record might itself pro
vide a basis for summary judgment. If, for example, uncontroverted
evidence established that the plaintiff was never employed by and
never applied for employment with the defendant agency, there
would obviously be no genuine issue of material fact and the court
could dispose of the plaintiff’s fraudulent claim by summary
judgment. Or, of course, the parties might agree to have the
district court decide the case on the administrative record. But in
most eases discovery would, if desired, have to be permitted before
a motion for summary judgment could even be considered. More
over, it must be recognized that summary judgments are rarely
encountered in Title VII cases when the facts are contested.

Title V II adverse action cases is applied, and the
decision of the agency or the Civil Service Commission
is to be upheld if it is supported by “ substantial evi
dence” in the administrative record.

c. Hybrid Approaches

The first court of appeals to adopt a hybrid ap
proach—representing the third category of decisions
referred to above—was the Ninth Circuit, in the case
at bar. Here the court of appeals referred with ap
proval to the district court decision in Hackley v.
Roudebush, supra (hereinafter ‘Hackley I ’ ), which
held that

“ The trial de novo is not required in all cases.
The District Court is required by the Act to ex
amine the administrative record with utmost care.
I f it determines that an absence of discrimina
tion is affirmatively established by the clear
weight of the evidence in the record, no new trial
is required. I f this exacting standard is not met,
the Court shall, in its discretion, as appropriate,
remand, take testimony to supplement the ad
ministrative record, or grant the plaintiff relief
on the administrative record.” Hackley v. John
son, 360 E.Supp. 1247, 1252 (D.D.C. 1973), rev’d
sub nom Hackley v. Roudebush, supra.

While the court referred to Hackley I with approval,
it is not clear whether it fully adopted the standard
quoted above. See, Chandler v. Johnson, supra, 515
F.2d at 255. What is clear is that the Ninth Circuit
held that a plaintiff who desires that the judicial pro
ceedings extend beyond a review of the administrative
record must make a specific showing—in the case at
bar without any prior discovery—that more than a re

view of the record is necessary in the circumstances
of his or her particular case. Id., at 255.

In a recent case the Eighth Circuit joined the Ninth
as an exemplar of the category of decisions which
adopt a hybrid approach. The Eight Circuit articu
lated its holding as follows:

“ . . . while we generally agree with the District
of Columbia, Third, and Seventh Circuits that a
federal employee is entitled to a judicial deter
mination of the merits of his claim, we think
district courts posses the power to make that
decision summarily upon an administrative record
that is fairly made and that completely discloses
the relevant facts upon which the plaintiff relies.
“ As a corollary, the district court, on a showing
of need, should exercise its discretion to re-open
the record and hear additional evidence or per
mit the plaintiff to proceed to develop additional
relevant evidence through discovery procedures.
This discretion should be liberally exercised in
order to assure that the federal employee-plain
tiff is given a full and fair opportunity to de
velop all the facts bearing upon his claim.
“ However, where there is no sound basis for re
opening the record, the district court, without
more, may proceed to a decision on the merits.”
Haire v. Galloway, supra, 10 EPD at p. ------ , 11
F.E.P. Cases at 772 (footnote omitted).

Thus, under Haire as under the Ninth Circuit’s deci
sion in the case at bar, the focus of the judicial pro
ceedings is on the administrative record, which may
be “ re-opened” and “ supplemented” only upon a
showing of necessity. However, the language in Haire
concerning the circumstances under which the plain
tiff may be permitted to conduct discovery is perhaps

more generous in tone than the language that the
Ninth Circuit employed, which requires the plaintiff
to show “ that without judicial discovery, a case could
not he made.” 515 F.2d at 255.46

d. The Government's Position

It is not possible for petitioner to know at this point
what position the respondents will adopt in this Court
on the issue presented in the case at bar. It seems un
likely that error will be confessed.47 As recently as
October 23, 1975, the Department of Justice stated its
position as follows in the Fifth Circuit:

“ This memorandum is filed in response to the Oc
tober 8, 1975, request of this Court for a statement
of the position of the Department of Justice on
the availability to federal employees of a trial de
novo in suits alleging discrimination in violation
of Title Y II of the Civil Rights Act.
“ The Department’s position is that federal em
ployees bringing discrimination suits under 42 48

48 Cf., Bowers v. Campbell, supra, 505 F.2d at 1160-1161. In
Bowers, decided under 42 U.S.C. § 1981, the Ninth Circuit pro
vided for “ a de novo decision by the district court based primarily
on the administrative record (if it is determined to be fair and
adequate) with provision for the admission of additional evidence.
. . . ” Id., at 1161. “ Both the employee and the employer shall
have the right to adduce additional evidence to supplement the
administrative record.” Id. (emphasis added). Bowers thus appears
to go beyond Hackley I, Chandler and Haire, since it provides a
right to adduce additional evidence, and also since it would seem
to imply a right to conduct discovery. (Bowers also clearly con
templates that any additional evidence is to be offered in the
district court, thereby excluding the possibility, which under
Hackley I is within the district court’s discretion, of a “ remand”
to the administrative agency for further proceedings.)

47 But cf., Memorandum in Response to Petition for Rehearing,
Place v. Weinberger, No, 74-116, October Term, 1974.

U.S.C. § 2000e-16_(c) are not entitled to a trial de
novo in the district court. Since the statute does
not define the scope of judicial review or contain
any requirement of a trial de novo, the scope of
judicial review is that provided under the Admin
istrative Procedure Act, i.e., the administrative
decision should be upheld unless 'unsupported by
substantial evidence,’ or ‘ arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance
with law.’ 5 U.S.C. § 706(2).

* * *

“ The Government’s position on the de novo issue
is presented, e.g., in our brief in [Swain v. Gallo
way, 5th Cir. No. 75-2002] at pp. 32-38.” Justice
Department Memorandum in Response to Court
Request, Oringel v. Mathews, 5th Cir. No. 74-3971
(Oct. 23, 1975).

The Department of Justice has thus recently confirmed
its adherence to the second category of decisions de
scribed above, represented by the Tenth Circuit’s de
cision in the Salone case. This is the position which the
government has generally advocated in the lower
courts, and was its position in the Ninth Circuit in the
case at bar.48

E. This Court Should Adopt a Rule Providing for Plenary Judicial
Proceedings in Federal Sector Cases, Because of the Express
Language and Legislative History of the 1972 Amendments,
As Well As Sound Policy Considerations.

Petitioner submits that the only rule which is con
sistent with the language, legislative history and pur
pose of the 1972 Title Y II amendments is one which 48

48 Notwithstanding the government’s restatement of its position
in the Fifth Circuit and the fact that said restatement was made
after the grant of certiorari herein, it seems unlikely to petitioner
that the government will assert this position in this Court.

provides for plenary judicial proceedings. There are a
number of policy reasons why this is so, and these will
presently be discussed. However, it cannot be over
emphasized that, in petitioner’s view, the controlling
policy decision on this issue has already been made:
Congress has determined that federal employees should
have the same rights available in the courts as their
private sector counterparts. As has been shown in
Arguments 1 (B ) and 1(C ), supra, and in Hackley v.
Roudebush and Sperling v. United States, supra, to
afford less than plenary judicial proceedings in federal
sector Title Y II cases would be to override the express
will of Congress. The lower courts which have held
otherwise do not even begin to explain how the plain
import of the language and legislative history of the
1972 amendments can be avoided. While the Eighth,
Ninth and Tenth Circuits assert that the language and
legislative history are not decisive of the present issue,
they offer virtually no reasoning in support of that
conclusion. Petitioner believes that the contrary con
clusion is inescapable.

The case at bar should not, therefore, be viewed as
one in which the Court must choose between, or accom
modate, conflicting policy considerations. But even if
it were so viewed, a proper analysis of such considera
tions also-compels the conclusion that federal sector
Title Y II actions should be conducted as plenary judi
cial proceedings.

1. Many of the cases declining to afford a plenary
scope to federal sector civil actions proceed on the
untenable assumption that no real change in the role
of the judiciary was intended to be accomplished by
the 1972 amendments. Sperling v. United Staes, supra,,

515 F.2d at 474, 476-7. Tims the Salone line of cases—
providing for review of the record under a “ substan
tial evidence” test, the same standard as that enunci
ated in pre-Title Y II adverse action cases—would
limit the effect of the 1972 amendments to an explicit
waiver of sovereign immunity and a removal of certain
procedural problems which existed in pre-Title Y II
attempts to bring discrimination suits against the fed
eral government.49 It is plain that the 1972 amendments
cannot be afforded such a narrow interpretation.50

While the Hackley I, Chandler and Haire cases the
oretically go beyond the Salone approach, as a practical
matter there is more similarity than difference between
the two approaches. Indeed, many of the district court
decisions which cite and purport to follow Hackley I ,
for example, in fact apply a “ substantial evidence”
test or an even less demanding standard.51 Ah this writ
ing, almost four__years since the 1972 federal sector
provision's "4^ame-.££ecTWe7JEEefmare.only nine pub
lished decisions entering judgment on the merits in
a plaintiff’s .favor.-agninst---a...fe.deraLdefend.ant. In
three of thesemirial tie.novo was conducted; in two of
the others evidence beyond the administrative record

49 Compare Brown v. General Services Administration, 507 F.2d
1300 (2d Cir. 1974), cert, granted, 421 U.S. 987 (1975), No. 74-768
ivith Bowers v. Campbell, 505 F.2d 1155 (9th Cir. 1974) ; Penn v.
ScMesinger, 490 F.2d 700 (5th Cir. 1973), rev’d on exhaustion of
remedies issue, 497 F.2d 970 (5th Cir. 1974) (en banc), pet. for
cert, pending, No. 74-476; Petterway v. V.A. Hospital, 49o F.2d
1223 (5th Cir. 1974).

50 With respect to the argument that the 1972 amendments’ sole
or primary purpose was to provide “ access” to judicial review in
the face of the defense of sovereign immunity, see, Hackley v.
Boudebush, supra, 520 F.2d at 142, 142 n.138; see also, Sperling v.
United States, supra, 515 F.2d at 476-7.

51 See, e.g., cases cited at Pet. 14 n.8.

was received; and in two of the others a finding of
discrimination had been made at the administrative
leveP^UF course it is possible that in all of the numer
ous other cases where summary judgment has been en
tered in the government’s favor on the basis of the
administrative record, the claim of discrimination was
not meritorious. A more reasonable inference, however,
is that the effectiveness of the 1972 amendments has
been drastically impaired by both approaches which
insulate the federal government’s employment prac
tices from plenary judicial scrutiny. As a prescient
district court warned in 1973:

. . it is simply too easy for a federal judge op
erating under Hackley [I ] to lapse, in his discre
tion, into a review of the record using the substan
tial evidence test or the test set forth in Ckiriaco v.
United States [procedural due process and ab
sence of arbitrary or capricious agency action].
. . . Only if a trial de novo is mandatory will the
federal employee be assured of the congressional
intent and that is a full, impartial review of the
ease in an adversary context.” Jackson v. U.S.
Civil Service Comm’n, 379 F.Supp. 589, 594 (S.D.
Tex. 1973) (emphasis added).

2. There is another reason why anything less than
a right to plenary judicial proceedings places the fed
eral sector plaintiff at a unique and wholly unjustified
disadvantage. Under the Chandler and Haire approach

53 Cases cited at Pet. 15 n.9; Rogers v. E.E.O.C., 10 EPD ft 10,416,
11 F.E.P. Cases 337 (D.D.C. 1975) (trial de novo) ; Smith v.
Fletcher, 10 EPD 10,329 (S.D. Tex. 1975) (supplemental evi
dence received); Palmer v. Rogers, 10 EPD |f 10,265 (D.D.C.
1975) (discrimination found at administrative level) ; Davis v.
Dept, of H.E.W., 10 EPD 10,341 (E.D. La. 1975) (discrimination
found at administrative level); Hammond v. Bolzano, 10 EPD
f 10,333 (D.D.C. 1975).

no less than under the Salone approach, the initial and
primary focus of the district court is on the adminis
trative record, and the plaintiff is saddled with the
burden of demonstrating that it is necessary for the
court to go beyond a review of that record. In such a
situation—and without any prior access to discovery
or compulsory process—the plaintiff is immediately
placed in a defensive posture because of the existence
of an administrative record compiled under the direc
tion and control of the government. Rather than being
permitted to develop his case through the normal proc
ess of discovery and present his case to the court
through the normal process of a plenary trial, the
plaintiff is instead required to show a persuasive justi
fication for discovering and offering any evidence be
yond the administrative record, and for presenting any
live testimony to the district court as trier of fact. Yet
there is simply no good reason why a federal sector
Title Y II plaintiff should not be able to “ proceed in
court like any other litigant, subject to informal steps
to avoid what is shown to be an unnecessary duplica
tion of the administrative record, rather than be re
quired to make an affirmative showing persuading the
judge that there is a ‘need’ before he can exercise
procedures routinely accorded to civil litigants.”
Hockley v. Roudebush, supra, 520 F.2d at 171 (Leven-
thal, J., concurring). And it should be re-emphasized in
this connection that the procedures which are “ rou
tinely accorded to civil litigants” are fully available
to plaintiffs in Title V II actions against private com
panies, unions, and employment agencies, as well as in
Title V II actions against state, county and muncipal
governments. As noted in Argument 1 (A ), supra, the
basic purpose of the 1972 amendments would be under
mined by the manifest injustice of a double standard

6 1

which operates to the unique advantage of one partic
ular kind of Title V II defendant.

3. The argument most frequently advanced in
support of such a double standard and in favor of a
more restrictive approach in federal sector cases is
that it would be a waste of judicial resources to permit
plenary proceedings in district court when an admin
istrative proceeding record is available. This argument
assumes that the “ equivalent” of the plenary judicial
proceedings which are available in all other Title Y II
cases may be provided in the federal sector by a review
of the administrative record, as supplemented upon a
showing of necessity.53 This argument, like the assump
tion behind it, is faulty for a number of compelling
reasons.

In the first place, it is difficult to imagine how a
judicial remedy which does not include the right to
conduct discovery and the right to have the court eval
uate the credibility of witnesses by observing their
testimony could possibly be deemed “ equivalent” to the
de novo judicial proceeding which Congress and this
Court have mandated in private sector Title Y II cases.
The administrative procedure provided by the Civil
Service Commission’s regulations (5 C.F.R. §§ 713.201,
et seq.) is certainly not equivalent to a judicial pro
ceeding. Consideration of a few key deficiencies will
highlight the obvious shortcomings of this administra
tive procedure. Typically, as in the case at bar, the
complainant is not represented by an attorney at the
administrative level; in any event, there is no provision

53 jE.g., Chandler v. Johnson, supra, 515 F.2d at 255; Haire v.
Calloway, supra, 10 EPD at p . ------ , 11 F.E.P. Cases at 771-2.

6 2

for court appointment of an attorney for the complain
ant, or for an award of attorneys ’ fees if the complain
ant prevails.54 The investigation which is conducted is
produced under the direction of, and entirely controlled
by, the agency which is the defendant in any subsequent
judicial proceedings. Only if the complainant so elects
is an administrative evidentiary hearing held, and
even then there is no subpoena power available to the
complainant, and no right to discovery comparable to
that provided by the Federal Rules of Civil Procedure.
And the CSC’s own handbook for complaints exam
iners explains that “ [t]he hearing is an adjunct to the
investigation. It is not an adversary proceeding but is
an administrative proceeding designed to provide addi
tional evidence.” 55

Beyond this, a detailed review of the administrative
procedure convincingly demonstrates that the inher
ent bias and inadequacies which were so severely crit
icized prior to the 1972 amendments remain intact to
this date, notwithstanding the CSC’s post-Act revisions
in the procedure. See, Hackley v. Roiulelush, supra,
520 F.2d at 137-141 (opinion of Wright, J .), concluding
after extensive analysis that “ the CSC’s nonadver-
sarial fact-finding procedures and inherent structural
defects i:>ersist essentially unchanged, and do not guar
antee federal employees a full and fair hearing on
their claims of employment discrimination. . . .” 56 See

M Compare, 42 U.S.C. §§ 2000e-5(f) (1), 2000e-5(k).
55 U.S. Civil Service Commission, Discrimination Complaint Ex

aminer’ s Handbook (April, 1973), at p. 5.
66 Accord, U.S. Comm’n on Civil Eights, The Federal Civil

Eights Enforcement Effort— 1974, Yol. V, “ To Eliminate Em
ployment Discrimination” (July, 1975), at pp. 61-86; Brief for
N A A CP Legal Defense and Educational Fund, Inc. as Amicus
Curiae.

also, Hackley v. Roudebush, supra, 520 F.2d at 171
(Leventhal, J., concurring): “ the complaint hearing
falls short of a Title Y I I action in certain of the cru
cial respects stressed in Alexander v. Gardner-Denver
■—the lack of compulsory process, except as to govern
ment employees: the dispensation with usual rules of
evidence; and particularly the lack of discovery pro
cedures. Significantly, the agency complaint hearing
has been structured to avoid an ‘ adversary’ quality.
. . . And the Manual virtually instructs the Examiner
in terms that equate a finding of discrimination with a
situation in which there is no reasonable doubt to the
contrary. [Footnote omitted.]”

But even if the administrative process were better
than it is, the proper result on the issue at bar would
be the same. In that sense, the empirical question of
the post-1972 performance of the Civil Service Com
mission is simply not the issue in the case at bar. See,
Hackley v. Roudebush, supra, 520 E.2d at 172 (Leven
thal and Davis, JJ., concurring). For in the closely
analogous case of Alexander v. Gardner-Denver Co.,
415 U.S. 36 (1974), this Court squarely rejected any
concept of “ deferral” to the results of an arbitration
process, however well-designed. In Alexander the re
spondent’s proposed deferral rule 57 was rejected be
cause :

“ [t]he rule’s obvious consequence . . . would be to
deprive the petitioner of his statutory right to at
tempt to establish his claim in a federal court . . .
The purpose and procedures of Title V II indicate
that Congress intended federal courts to_ exercise
final responsibility for enforcement of Title V I I ;

67 415 U.S. at 55-6.

deferral to arbitral decisions would be inconsistent
with that goal.” 415 U.S. at 55-6.

A more stringent deferral standard was also rejected
in Alexander:

“ Nor are we convinced that the solution lies in
applying a more demanding deferral standard,
such as that adopted by the Fifth Circuit in Rios
v. Reynolds Metals Co., 467 F.2d 54 (1972). [Foot
note omitted.] As respondent points out, a stand
ard that adequately insured effectuation of Title
V II rights in the arbitral forum would tend to
make arbitration a procedurally complex, expen
sive, and time-consuming process. And judicial en
forcement of such a standard would almost require
courts to make de novo determinations of the em
ployees’ claims. It is uncertain whether any mini
mal savings in judicial time and expense would
justify the risk to vindication of Title V II rights.”
415 U.S. at 58-9 (emphasis added).

The very same reasoning applies to the CSC-devised
administrative procedure in the federal sector. That
procedure certainly is not an adequate substitute for
plenary judicial proceedings; and to try to make it so
would probably destroy its utility as a vehicle for pos
sible informal resolution of complaints without resort
to the judicial process.

4. At the same time, it has never been disputed
that the administrative decisions in federal sector Title
Y II cases may, like arbitral decisions in private sector
cases, be admitted into evidence and accorded such
weight as the court deems appropriate. Cf., Alexander
v. Gardner-Denver Co., supra, 415 U.S. at 60. More
over, the rest of the administrative record would also
be admissible, subject only to the limitations of the
Federal Rules of Civil Procedure and the Federal

Rules of Evidence. Hackley v. Roudebush, supra, 520
E.2d at 156-7; Sperling v. United States, supra, 515
E.2d at 484; Caro v. Schultz, supra, 521 E.2d at 1089.
The essential point, however, is that the administra
tive record must not be the narrow focus of the judicial
proceeding. It may be considered for whatever light it
sheds on the facts at issue; but it may not be utilized
as a weapon for limiting the scope of otherwise proper
discovery or impairing the plaintiff’s access to the
normal mechanisms of judicial factfinding. Hackley v.
Roudebush, supra, 520 F.2d at 151.

Nor is there any ground for believing that it is neces
sary or desirable to deny federal sector plaintiffs the
rights available to their private sector counterparts in
order to assure that these cases are efficiently con
ducted :

“ The informal means available to a judge to shape
the course of a trial would ordinarily suffice to
obviate duplication without a purpose, just as a
judge routinely takes steps to avoid cumulative
testimony. Rut that does not warrant omission of
the testimony of crucial witnesses, whose de
meanor is of manifest importance to the factfind
ing function. And the significant discovery right
should not be impaired.” Hackley v. Roudebush,
supra, 520 F.2d at 171 (Leventhal, J., concurring).

Discovery is a crucial element of any Title V II ac
tion—even of a single-plaintiff, individual case. E.g.,
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-
5 (1973) ; Burns v. Thiokol Chemical Corp., 483 F.2d
300 (5th Cir. 1973). It is obviously unacceptable to
place upon the federal sector plaintiff a burden to
justify the invocation of this fundamental right, which
is fully available as a matter of course to all other Title

6 6

Y II litigants. Of course it is always open to any de
fendant to move for a protective order in appropriate
circumstances; but it is the defendant’s burden to show
that such an order is necessary within the meaning of
Fed.R.Civ.P. 26(c) as normally applied in Title Y I I
cases. The mere fact that an administrative investiga
tion has occurred provides no justification for depriv
ing the plaintiff of the right to discovery.

Similarly, there is no warrant for assuming that the
parties in a federal sector Title Y II case will attempt
without reason to present truly duplicative testimony,
any more than the parties in any other case will seek
unnecessarily to call witnesses whose live testimony
would be truly duplicative of their deposition testi
mony. To the extent that any testimony offered is in
fact unnecessarily duplicative, a district court can con
trol it in the same way it controls testimony in any
other plenary judicial proceeding. On the other hand,
to the extent that testimony or cross-examination at
an administrative hearing is honestly felt by a party to
be inadequate, federal sector Title Y II litigants should
certainly have the same right to call witnesses as is
enjoyed by parties in any civil litigation in which
witnesses’ depositions have previously been taken. It
is also important to recall that even in those cases
where an administrative evidentiary hearing has been
held, the complainant has frequently not been repre
sented by an attorney. Moreover,

. . merely because an individual testified at the
agency level does not mean that he would not be
required to testify at the trial in District Court.
The decision as to whether a particular witness
should be called remains with counsel; although a
trial judge has discretion to limit cumulative testi
mony, a witness’ trial testimony is not cumulative

merely because it repeats his testimony before the
agency.” IlacMey v. Boudebush, supra, 520 F.2d
at 158-0.

5. A frequently unarticulated58 policy considera
tion behind those decisions which have denied a right
to plenary judicial proceedings is the belief that fed
eral sector Title V II cases will, unless their scope is
carefully restricted, place unacceptable burdens on the
judiciary. Petitioner submits that this kind of consid
eration is simply foreclosed by the legislative decision
which Congress made in 1972 when it extended Title
V I I ’s judicial remedy to the federal sector:

“ . . .it should be remembered that the parts of the
1972 amendments involved in this case extended
coverage to only approximately 2.6 million federal
employees. They also extended coverage to an esti
mated 10.1 million state and local government em
ployees and millions of additional private sector
employees. Congress explicitly decided that the
time and expense of de novo judicial fact-finding
procedures for the latter were clearly worth the
expected increase in fairness and accuracy of such
fact-finding over administrative fact-finding, and
the increase in respect which such decisions would
be accorded. There is no indication that Congress
believed that any burden created by federal em
ployee litigation would, to the contrary, be unde
sirable in light of the similar laudable purposes
which it serves.” IlacMey v. Boudebush, supra,
520 F.2d at 154 (footnotes omitted).

Accord, Sperling v. United States, supra, 515 F.2d at
483-4: “ Those concerns, while real, are matters prop
erly within the sphere of the legislature.”

58 But see, Hackley I, supra, 360 F.Supp. at 1249 n.2 and text
at n.2.

6 8

6. Finally, another argument which has some
times been advanced as a reason for denying plenary
judicial proceedings is that the savings in time
afforded by a more restricted procedure would actual
ly benefit federal sector plaintiffs because their com
plaints would be more expeditiously adjudicated.59
But there is, of course, nothing to prevent the parties
in a federal sector Title V II action from agreeing to
submit the case for decision on the administrative
record if they deem it appropriate to do so. Nor does
the availability of plenary judicial proceedings in any
kind of case relieve counsel o f their obligation, once
discovery has been conducted, to make a conscientious
effort to stipulate as many facts as possible. Such an
effort is always required both to simplify the court’s
process of decision, and to avoid burdening either the
parties or the court with formal proof of facts which
are clearly established by documentary or other evi
dence. In the final analysis, however, the response to
arguments regarding the time that may be consumed
in plenary judicial proceedings must be as follows:

“ Surely Congress intended that Title V II cases
be expedited both in the agencies and in the courts.
But more important, it wanted all vestiges of dis
crimination eradicated. To tell an aggrieved fed
eral employee whose discrimination claim was
rejected in an administrative proceeding that,
since Congress wanted his claim expeditiously
processed, he should be expeditiously denied the
opportunity to present all relevant evidence per
taining to that claim is, to say the least, incon

59 Hacldey I, supra, 360 F.Supp. at 1252; Haire v. Calloway,
supra, 10 EPD at p. ------, 11 F.E.P. Cases at 771-2.

gruous. Indeed, it is particularly incongruous to
suggest that ‘ reasonable’ discovery . . . is actually
an evil to be avoided.

# # #

“ . . .w e simply fail to perceive what substantive
policies of the Act, from the perspective of the
federal employee who is aggrieved by his agen
cy ’s or the CSC’s treatment of his complaint, are
defeated rather than advanced through a trial
de novo. Avoidance of ‘ substantial delays’ is no
panacea if the product of speed is a hasty denial
of justice. . . .” llackley v. Roudebush, supra,
520 F.2d at 155-6 (footnote omitted).

F. The Issue in the Case at Bar Has Important Implications for
Other Issues, Which Also Counsel in Favor of a Rule
Providing for Plenary Judicial Proceedings.

No discussion of the issue of the nature and scope
of judicial proceedings would be complete if it did
not advert to other issues whose outcome will be
strongly influenced if not directly controlled by this
Court’s decision in the case at bar. Foremost among
these related issues is the question of the availability
of class actions in federal sector Title V II cases.60

I f “ it was Congress’ intent to provide an aggrieved
federal employee with as full a panoply of procedural
remedies in the district court as those afforded a pri
vate sector litigant, ’ ’ 61 then class actions should be
fully available in federal sector Title V II cases where
the requirements of Fed.R.Civ.P. 23 are met.62 On the

60 For a discussion of some other related issues, see Brief for
NAACP Legal Defense and Educational Fund, Inc. as Amicus
Curiae.

61 Sperling v. United States, supra, 515 F.2d at 481.
62 Hackley v. Roudebush, supra, 520 F.2d at 151-3 n.177; see

also, e.g., Sylvester v. U.S. Postal Service, 393 F.Supp. 1334 (S.D.
Tex. 1975); Chisholm v. U.S. Postal Service, 9 EPD Jf 10,212,

other hand, if federal sector Title Y I I case are not de
novo proceedings, then there are very substantial
grounds for doubting that class action treatment will
be available in these cases. Thus it has been held that
“ federal employees cannot maintain class actions
under Title Y I I ” because “ a class action . . . would
require exploration of factual issues obviously beyond
the record of a single employee” 63; and that “ [w]here
there is review on the record and no trial de novo,
there is no class action.” 64

The class action has been the backbone of Title
Y I I ’s effectiveness in the private sector.65 Individual,
single-plaintiff cases such as the case at bar66 are, of
course, important to the parties involved, and they
are also affected with a public interest.67 But the major

11 F.E.P. Cases 457 (W.D. N.C. 1975), appeal pending, 4th Cir.
Nos. 75-2068, 75-2069; Ellis v. Naval Air Rework Facility, 10 EPD
^ 10,257, 10,422 (N.D. Cal. 1975).

63 Pendleton v. Schlesinger, 8 EPD If 9598, at p. 5569, 8 F.E.P.
Cases 853 (D.D.C. 1974), appeal pending, D.C. Cir. No. 74-1929.

64 Spencer v. Schlesinger, 374 F.Supp. 840, 844 n.6 (D.D.C.
1974), appeal pending, D.C. Cir. No. 74-1787; see also, e.g., East-
land v. Tennessee Valley■ Authority, 9 EPD ff 9927, at p. 6882 (N.D.
Ala. 1975), appeal pending, 5th Cir. No. 75-1855.

e5E.g., Albemarle Paper Co. v. Moody, 95 S.Ct. 2362 (1975);
Griggs v. Duke Power Co., 401 U.S. 424 (1971).

66 See also, e.g., McDonnell Douglas Corp. v. Green, 411 U.S,
792 (1973).

67 Albemarle Paper Co. v. Moody, supra, 95 S.Ct. at 2370; see
also, Newman v. Piggie Park Enterprises, 390 U.S. 400 (1968).
It should be noted that unlike in the private sector, where the
EEOC and the Attorney General have authority to bring court
actions to enforce Title Y II—and unlike in the state and local
government sector, where the Attorney General has such author
ity— in the federal sector, the private plaintiff is the only party

impact of Title Y II in terms of systematic reform of
unlawfully discriminatory employment practices lias
been felt in class action eases. In such cases, the
courts have held that a single plaintiff who has ex
hausted his administrative remedies may maintain an
across-the-board class action on behalf of other mem
bers of Ms class who have not exhausted or even
initiated the administrative process; that such a
plaintiff may raise in his judicial complaint, on his
own behalf and on behalf of the class he represents,
any matters “ like or related to” the allegations of
his administrative charge; and that other members
of the class who do not themselves have independent
standing may properly be named as co-plaintiffs in
the action, or receive relief as unnamed parties.68 This
Court has approved this general line of authority, and
has held that backpay may be awarded on a class
basis in such cases.69

who can bring such an action, and the government’s only involve
ment is as a defendant.

™E.g., Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239 (3rd
Cir. 1975), cert, denied, 421 U.S. 1011 (1975); Barnett v. W. T.
Grant Co., 518 F.2d 543 (4th Cir. 1975); Oatis v. Crown-Zellerbach
Corp., 398 F.2d 496 (5th Cir. 1968) ; Jenkins v. United Gas Corp..
400 F.2d 28 (5th Cir. 1968); Miller v. International Paper Co..
408 F.2d 283 (5th Cir. 1969) ; Johnson v. Georgia Highway E x
press, Inc., 417 F.2d 1122 (5th Cir. 1969) ; Carr v. Conoco Plastics,
Inc., 423 F.2d 57 (5th Cir. 1970); Sanchez v. Standard Brands,
In c ’, 431 F.2d 455 (5th Cir. 1970); Johnson v. Goodyear Tire &
Rubber Co., 491 F.2d 1364 (5th Cir. 1974) ; Pettway v. American
Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974); Gamble v.
Birmingham Southern Railroad Co., 514 F.2d 678 (5th Cir. 197o) ;
Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 1969) ;
Oubichon v. North American Rockwell Corp., 482 F.2d 569 (9th
Cir. 1973).

69 Albemarle Paper Co. v. Moody, supra, 95 S.Ct. at 2370 n.8.

These decisions have been informed by, and are
consistent with the broad remedial purpose of Title
V II. Their applicability to federal sector cases would
be very seriously in question if this Court were to
hold that such cases are not plenary judicial proceed
ings, but are instead intended to focus on the admin
istrative record of the individual plaintiff’s complaint.
Only a ruling by this Court upholding the unitary
structure of Title V II as it applies to federal defend
ants as well as all other defendants will preserve the
vitality of the class action device in the federal sector.
And on this question, as on the question presented in
the case at bar, Congress has made its will known with
clarity.70

G. The Posture of the Case at Ear Requires That the Judgment
Below Be Reversed.

In the case at bar the examiner who conducted the
administrative hearing on petitioner’s complaint con
cluded that

70 Albemarle Paper Co. v. Moody, supra, 95 S.Ct. at 2370 n.8;
Seetion-by-Section Analysis of TI.R. 1746, The Equal Employment
Opportunity Act of 1972, 118 Cong. Rec. 7565 (Mar. 8, 1972),
History at 1847: “ In establishing the enforcement provisions under
this subsection [706 (f)(1 )] and subsection 706(f) generally, it
is not intended that any of the provisions contained therein shall
affect the present use of class action lawsuits under Title Y II
id., 118 Cong. Rec. 7564, History at 1844: “ In any area where the
new law does not address itself, or in any areas where a specific
contrary intention is not indicated, it was assumed that the present
case law as developed by the courts would continue to govern the
applicability and construction of Title V I I ” ; id., 118 Cong. Rec.
7566, History at 1851: “ Section 717(c) and (d )— The provisions
of sections 706(f) through (k), concerning private civil actions by
aggrieved persons, are made applicable to aggrieved Federal em
ployees or applicants for employment. ’ ’

. . a preponderance of the overall evidence
justifies a conclusion that the selecting official dis
criminated against Complainant because of her
sex in not selecting her for the GS-13 Section
Chief position. The evidence does not indicate that
Complainant’s race influenced the decision not to
select her for the position.” (A.R. 34-5; Pet App.
16a).

The examiner recommended that petitioner be pro
moted immediately and retroactively to the position
in question. (A.R. 19; Pet. App. 16a).

However, the Veterans Administration rejected the
examiner’s finding of discrimination, and stated that

“ The selecting official is entitled to make his se
lection from any of the candidates on a promo
tion certificate, whether or not the candidates are
presented in rank order, based on his judgment
of how well the candidates will perform in the
particular job being filled, and, when relative,
what their potential is for future advancement.
Authority: Federal Personnel Manual, Chapter
335, subchapter 3, paragraph 3.7c. The record is
absolutely void of any evidence or testimony in
reference to any acts, words, or innuendos, dis
criminatory in nature, by the selecting official, re
lating to his selection from the certificate of eligi-
bles furnished him.” (A.R. 38; Pet. App. 20a).

The agency’s decision was affirmed by the Civil Service
Commission, which added reasons of its own to those
given by the agency in support of its decision. (A.R.
3-8; Pet. App. 21a-29a).71

71 Two of the reasons cited by the Commission cannot be con
sidered to suport the agency’s decision.

First, the Commission observed that the person selected over

The district court’s decision in the government’s
favor contained no discussion of the facts of the case,
no indication of why it had concluded that petitioner
had not been discriminated against, and no explana
tion of why it had decided in this particular case to
limit the judicial proceedings to a review of the ad
ministrative record. (R. 252-9; Pet. App. 30a-33a).
The court of appeals did state its reasons for conclud
ing that petitioner had not been discriminated against.
(515 F.2d at 254; Pet. App. 38a-39a).72 But it, like

petitioner had a “ total score on the examination (167) [which]
exceeded [petitioner’s] by two points.” (A.R. 3; Pet. App. 22a).
In fact, there was no “ examination” given. A rating of applicants
was performed by an evaluation panel, in order to determine which
applicants were to be designated as “ highly qualified.” (A.R. 159).
Petitioner was one of the applicants so designated. (A.R. 19; Pet.
App. 4a). There was no evidence that the interview panel or the
adjudication officer (the selecting official) was made aware of the
actual numerical ratings assigned by the evaluation panel, and
there was affirmative evidence to the contrary. (See, A.R. 158-9,
177, 187, 224; 94-5, 99-100). Neither the Veterans Administration
nor the selecting official cited the two-point difference in ratings
as a justification for failure to select petitioner. (A.R. 36-9; Pet.
App. 18a-21a; A.R. 56-69, 177-186).

Second, the Commission stated that “ the selectee received a more
favorable rating than the complainant with respect to ability to
‘ motivate, train, develop, and guide employees of varied back
grounds and skill levels effectively.’ ” (A.R. 6; Pet. App. 25a-26a).
In fact, petitioner on two occasions received a one-point higher
score than the selectee on this characteristic. (Compare A.R. 124
point 1(h) with A.R. 132, point 1 (h ) ; and compare A.R. 126.
point 1(h) with A.R. 136, point 1(h)) . The Commission seemed,
inconsistently, to recognize this at a later point in its decision,
where it stated that the selecting official “ had previously concurred
in assigning complainant a higher rating on ability to motivate
employees.” (A.R. 8; Pet. App. 28a).

72 Included among these reasons was that the selectee had “ a
numerical score two points higher than [petitioner’s] on a grading
system that was not shown to have been discriminatory.” (515

the district court, based its decision solely on a review
of the administrative record. No testimony was beard
in the district court; and petitioner was not permitted
to engage in any discovery.

In the preceding portions of this argument, peti
tioner bas set forth her reasons for believing that fed
eral sector Title V II plaintiffs are entitled to engage
in discovery pursuant to the Federal Rules of Civil
Procedure, and to present testimonial and documen
tary evidence in a plenary judicial trial. I f this argu
ment is accepted, then a reversal of the decision below
follows as a matter of course, since petitioner was de
prived of the right to discovery and the right to pre
sent evidence beyond the administrative record. The
summary judgment affirmed by the court of appeals
cannot stand under ordinary Rule 56 standards as ap
plied in cases where plenary judicial proceedings are
afforded, because no discovery was permitted, and be
cause even in the absence of discovery, triable issues
of fact were manifest.

While a reversal follows, therefore, as a matter of
law from the foregoing analysis, it is instructive to
consider by way of illustration some of the more ap
parent defects in the review of the record which the
court of appeals affirmed. A critical examination of the
procedure followed at the administrative level and in
the courts below reveals examples of a number of the
inadequacies of any rule providing for less than
plenary judicial proceedings. Beyond this, such an
examination demonstrates that the judgment in re
spondents ’ favor in the case at bar does not withstand

F.2d at 254; Pet. App. 38a). As previously noted, this provides
no support for a decision in respondents’ favor. See, n.71, supra.

scrutiny even under a legal standard affording less
than plenary judicial proceedings. Indeed, the judg
ment below is even unsupportable under the legal
standard which the decision of the court of appeals
itself set forth. That standard placed on petitioner—
who had sought but been denied discovery, and who
had prevailed before the only officer to hear oral testi
mony—the burden of demonstrating a need to present
evidence beyond the administrative record. (515 F.2d
at 255; Pet. App. 40a-41a). Even assuming arguendo
the correctness of placing such a burden on petitioner,
the court of appeals ignored crucial deficiencies in the
administrative record in holding that there was no
need for discovery and judicial evidentiary proceed
ings.

1. As the court of appeals recognized, there can
be no dispute that petitioner established the four ele
ments of a prima facie case of discrimination as set
forth in this Court’s decision in McDonnell Douglas
Gorp. v. Green, 411 U.S. 792, 802 (1973).73 Since this
showing shifted the burden to the respondents to artic
ulate a legitimate, nondiscriminatory reason for peti
tioner’s rejection, it is interesting to note that the
agency did not call any witnesses or offer any docu
mentary evidence at the administrative hearing, but
simply rested on the investigative file which had been
prepared at a prior stage in the administrative proc
ess. (A.R. 18; Pet. App. 3a; A.R. 46-7, 117). The
agency’s approach is perhaps understandable in light
of the fact that the Civil Service Commission instructs
its examiners that the concept of burden of proof does
not apply to the discrimination complaint hearing

73 See, 515 F.2d at 254; Pet. App. 37a: “ Appellant is correct in
asserting that she was entitled to an affirmative statement of non
discriminatory reasons for the selection of another applicant.”

process.74 However, while this may explain the agen
cy ’s casual attitude concerning its obligation to re
spond to petitioner’s prima facie case, it also provides
a striking illustration of the degree to which the ad
ministrative procedure fails to implement the order
and allocation of proof to which this Court addressed
itself in the McDonnell Douglas case.

2. Assuming arguendo that the respondents dis
charged their burden to present sufficient evidence of
a “ legitimate, nondiscriminatory reason” for peti
tioner’s non-selection, petitioner was still to “ be af
forded a fair opportunity to show that [respondents’ ]
stated reason for [her] rejection was in fact pretext.”
McDonnell Douglas Corp. v. Green, supra, 411 U.S. at
802, 804. In this connection, one of petitioner’s first
acts after suit was filed in the district court was to
notice the deposition of, and request production of
documents by, the selecting official; and to notice the
deposition of the person selected in preference to pe
titioner for the job in question. (R. 146-150). Since
petitioner had represented herself at the administra
tive hearing, the selecting official had never been ques
tioned by an attorney acting in her behalf. And the
complaints examiner had denied petitioner’s request
to call as a witness at the administrative hearing the
person selected for the job in question. (A.R. 118, 141,
144).

It was undisputed that petitioner was “ highly quali
fied” for the position involved in the case at bar.
Agency officials stated that it was very difficult to de-

74 U.S. Civil Service Commission, Discrimination Complaint E x
aminer’s Handbook (April, 1973), at pp. 53-4; Hackley v. Boude-
bush, 520 F.2d 108, 138 n.129 (D.C. Cir. 1975) (opinion of Wright,
J.).

cide between petitioner and the selectee, that the inter
view panel was divided 2-1 on the question, and that
petitioner would have been selected if the ultimate
selectee had not been chosen. (E . g A.R. 65-6, 95, 159-
160). The attorney who represented the government in
the lower courts took the position that “ here we have
a situation where we have two people that had out
standing records, very worthy of being considered for
promotion. . . . the affidavits and the testimony in the
administrative record demonstrate it is a close ques
tion [as to who should have been selected].” (Tr. 13,
Dec. 21, 1973). In these circumstances, the credibility
of the selecting official’s testimony concerning his rea
sons for failing to select petitioner was of central im
portance. The complaints examiner—the only officer
to hear and observe the selecting official’s testimony—
found that the selecting official had discriminated
against petitioner. The Civil Service Commission, in
affirming the agency’s rejection of this finding, relied
heavily on the selecting official’s testimony. (A.R. 5-8;
Pet. App. 24a-28a). It seems particularly inconsistent
with the district court’s role as ultimate factfinder for
it to have proceeded to decision without permitting the
selecting official to be questioned by petitioner’s attor
ney, and without observing the selecting official’s testi
mony and making an independent judgment concern
ing his credibility.

Similarly, the fact that the hearing officer refused
to call as a witness the person selected over petitioner
for the job in question makes it particularly inex
plicable that the district court proceeded to decision
without at least granting petitioner’s request to take
the selectee’s disposition. Central to the issue in this
case were the relative qualifications of petitioner and

the selectee, and the validity or pretextuality o f the as
serted reasons for failing to select petitioner. One
of petitioner’s contentions—on which the hearing
examiner, the agency, and the Civil Service Commis
sion each expressed no opinion because of lack of suf
ficient evidence (A.R. 6, 30-31, 38; Pet. App. 13a, 20a,
26a)—was that the selectee did not prossess the neces
sary ability to read and interpret computer printouts.
In addition, petitioner contended—and, according to
the agency and CSC decisions, failed to prove (A.R.
5, 37-8; Pet. App. 19a, 24a-25a)—that the selectee was
inferior to her in technical proficiency. It seems incon
gruous that petitioner—who had already made out
a prima facie case o f discrimination—could be
charged with failure to prove that the selectee was
less qualified than she. Rot only was it more properly
the respondents’ burden to show that the selectee was
more qualified than petitioner; in addition, petitioner
was deprived of the opportunity to take the selectee’s
deposition or call him as a witness, so that she was
unable to inquire directly into certain aspects of his
qualifications. Moreover, the inability to question the
selectee hampered petitioner’s opportunity to explore
whether any of his contacts with his superiors might
give rise to an inference that he had been “ prese
lected” for the position in question. (Cf., A.R. 62,178).

3. As this Court held in McDonnell Douglas Corp.
v. Green, supra, 411 U.S. at 804-5:

“ Other evidence that may be relevant to any
showing of pretext includes . . . [the defendant’s]
general policy and practice with respect to minori
ty employment. [Footnote omitted.] On the latter
point, statistics as to [the defendant’s] employ
ment policy and practice may be helpful to a de
termination of whether [the defendant’s action]

in this case conformed to a general pattern of
discrimination. . . . ”

In the case at bar, “ review on the record” operated
to impair substantially petitioner’s ability to adduce
the kind of evidence to which the above passage from
McDonnell Douglas refers.

At the administrative hearing, no documentary ex
hibits (other than the investigative file) were offered
by the parties. (A.R. 18). The hearing examiner took
some initiative to obtain additional documents; but
information from the personnel files so obtained was
sanitized for purposes of the examiner’s decision, and
the actual personnel files were not available to peti
tioner or the district court. (A.R. 18). Of course peti
tioner, not being an attorney, could not have been
expected to attempt at the administrative level to en
gage in the kind of discovery which is typical in Title
V II litigation.75 * But in any case, the administrative
process does not generally provide for anything com
parable to discovery under the Federal Rules o f Civil
Procedure, and nothing comparable to such discovery
occurred at the administrative level in the case at bar.

I f discovery had been permitted by the district court,
a number of possible avenues of inquiry would have
been open. For example, detailed exploration of rele
vant employment statistics could have been undertaken.
In this connection, it is ironic that the court of appeals,
which held that there was no need to go beyond the
administrative record, simultaneously held as follows:

“ Three persons, all male, were promoted from
grade 12 to grade 13 during the 18 months in which

75 See, e.g., Burns v. Thiokol Chemical Corp., 483 F.2d 300 (5th
Cir. 1973).

8 1

the supervisor whose decision was challenged had
the principal responsibility in such promotions.
There was no evidence, however, to rebut the su
pervisor’s statement that those promoted were the
best qualified. There was no evidence that quali
fied women even competed for these promotions,
much less that any qualified woman was rejected
in favor of a less qualified man.” 515 F.2d at 254;
Pet. App. 38a.

It seems inexplicable that the court of appeals failed
to note that if petitioner had been permitted to engage
in discovery, the kind of evidence which it felt was
missing may well have been forthcoming. Even the
Civil Service Commission considered it relevant to
observe in its decision that “ [statistically, it is clear
that as a black, and even more so as a female, com
plainant was in a category least likely to be promoted
to a position at grade OS-9 or above.” (A.R. 7; Pet.
App. 27a). Discovery would have enabled petitioner,
consistently with McDonnell Douglas, to have explored
whether a general policy or practice of discrimination
was lurking behind these statistics.

One starting point for such discovery might have
been the analyses contained in the agency’s equal em
ployment opportunity plan, which is required by stat
ute and regulation,76 but which was not a part of the
administrative record. Other avenues that would have
been worthy of detailed exploration include (a) the
circumstances surrounding a prior racial discrimina
tion complaint involving the same selecting official, in
which a clerk complained about a promotion and
“ [w]e were later advised to promote her” (A.R. 185);
(b) the reasons why “ [w]hen we hire outside, we go 78

78 42 U.S.C. § 2000e-16(b); 5 C.F.E. §§ 713.203, 713.302.

to the register and I do not recall interviewing any
non-Caucasians. The minority people just aren’t ap
pearing on the register” (A.R. 1 8 5 )" ; and (c) the
circumstances surrounding petitioner’s allegations of
a general pattern or practice of discrimination (e.g.,
A.R. 41, 106-109, 116, 161, 163, 165, 174-5, 275-6).78

The foregoing is intended only to suggest some pos
sible lines of inquiry. Moreover, it may be that evi
dence uncovered by discovery would not have per
suaded the district court to find in petitioner’s favor.
The point is, however, that petitioner was deprived
of the right to conduct discovery and to attempt to
make an important kind of showing which this Court’s
opinion in McDonnell Douglas contemplates.

4. The hearing examiner found that petitioner
had been discriminated against on the basis of her sex,
but that no racial discrimination had been shown. The
exclusion of certain requested witnesses at the admin
istrative hearing would not have been of great signifi
cance had the agency accepted the examiner’s decision
based on sex discrimination. But since it did not, and

77 See, Griggs v. Duke Power Co., 401 U.S. 424 (1971); Albe
marle Paper Co. v. Moody, 95 S.Ct. 2362 (1975); Douglas v.
Hampton, 512 F.2d 976 (D.C. Cir. 1975). 78

78 In this connection, it should be noted that it was the hearing
examiner—not petitioner—who reduced the scope of the inquiry
to six numbered allegations. (A.R. 20-21; Pet. App. 4a-5a). The
agency and the CSC then adopted the examiner’s narrow definition
of petitioner’s contentions. (A.R. 4-5, 36-7; Pet. App. 18a-19a,
23a-24a). A review of the record citations in the text will show
that petitioner’s allegations included claims of an across-the-board
pattern or practice of discrimination against blacks as a class and
females as a class. As noted in McDonnell Douglas, facts bearing
on such allegations are also probative in an individual, single-
plaintiff case.

since the lower court’s confined themselves to a review
of the administrative record, it is of central impor
tance that the hearing examiner refused to call 15
of the 24 witnesses whom petitioner had requested.
(A.R. 118, 141-5). Some of these witnesses would have
testified to the existence of a pattern of race or sex
discrimination within the agency, or to instances of
race or sex discrimination which they themselves had
suffered. (A.R. 143-5, 189-190, 191-3, 194-6, 197-9, 204-
5). Some others had been requested by petitioner to
show how non-minority employees were treated more
favorably than blacks and females. (A.R. 143-5). The
examiner’s basis for excluding all of these witnesses—
that “ they do not appear to have direct knowledge re
lated to [petitioner’s] non-selection for the position of
Section Chief” (A.R. 141; see also, A.R. 118)—was
plainly inconsistent with the broad standard of rele
vancy which this Court recognized in the McDonnell
Douglas case.

Moreover, i f the kind of discovery suggested above
had been permitted, it might well have led petitioner
to additional witnesses beyond those whom she had at
tempted to call at the administrative hearing. Thus in
two crucial respects—the examiner’s exclusion of wit
nesses, and the lack of discovery and compulsory proc
ess—the procedure followed at the administrative level
and in the district court was highly prejudicial to peti
tioner’s right to “ a full and fair opportunity” to ad
duce all competent evidence. McDonnell Douglas Gorp.
v. Green, supra, 411 U.S. at 805.

5. Finally, it is no reflection on petitioner, a lay
person, to suggest that her examination of some of the
witnesses who did testify at the administrative hearing

was not as thorough or effective as the kind of exam
ination that an experienced attorney armed with doc
umentary evidence might he able to conduct. (E.g
A.R. 56-62, 67, 69-73). This does not, of course, neces
sarily mean that all or even most of the witnesses who
testified at the administrative hearing would need to
be recalled in plenary judicial proceedings. But peti
tioner was deprived of all opportunity to have her at
torney examine witnesses either by deposition or at a
trial. While petitioner had the right to be represented
by an attorney at the administrative level if she had
been prepared to bear the expense involved, there is no
provision for appointment of an attorney at the ad
ministrative level, and no provision for recovery of
attorneys’ fees by a complainant who prevails at the
administrative level and does not need to file a court
action. Of course, once a civil action is filed under Title
V II, appointment of an attorney, and recovery of at
torneys’ fees, are provided for by the statute. 42 U.S.C.
§§ 20G0e-5(f) (1 ), 2000e-5(k). That important aspect
of the statutory scheme, however, provides little com
fort if the attorney’s hands are tied by a rule of law
which denies the right to plenary judicial proceedings,
and which rivets the attention of the parties and the
court to the administrative record.

CONCLUSION

For the foregoing reasons, the judgment of the court
of appeals should be reversed and the case remanded
for plenary judicial proceedings.

Respectfully submitted,

P atjl R. D imond
J. H arold F lannery
J oel L. Selig

L awyers’ Committee F or Civil
R ights U nder L aw

733 Fifteenth Street, N.W.
Suite 520
Washington, D.C. 20005

Stuart P . H erman
9601 Wilshire Boulevard
Suite 632
Beverly Hills, California 90210

Attorneys for Petitioner

December, 1975.

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