Adams v. Brinegar Brief for Plaintiff-Appellant

    In lire

lutteii States (ttmtrl of Appeals
Star %  irmmtl? (Eirrwit

No. 75-1155

Appeal  from the United
K E N N E T H  Q, A D A M S , States Court for the

Plaintiff-A  ppellan t, Northern District of Ilii-
nois.

vs. >- —--
C L A U D E  S. B R IN E G A R , et al., Honorable

D efen dan ts-A  ppellees. W illiam  J. Bauer,

J
Judge Presiding.

BRIEF FOR PLAINTIFF-APPELLANT.

Charles Barnhill, Jr.,
George F. Galland, Jr.,

Attorneys for Plaintiff-Appellant.

Davis, Miner & Barnhill,
14 West Erie Street,
Chicago, Illinois 60610,
Telephone: (312) 751-1170.

Gunthorp-Warran Printing Company. Chicago •  346-1717



TABLE OF CONTENTS

gage

TABLE OF AUTHORITIES XI

I. STATEMENT OF THE ISSUES 1

H H • STATEMENT OF THE CASE 1

<l). The Investigation. 3

(2) The Agency Decision. 3

(3) The Revised Decision. 5

III. ARGUMENT 8

A. The 1972 Amendments to Title VII Give the 
District Court Jurisdiction Over Adams' Claim . 9

B. The District Court Had Jurisdiction Under 
28 U.S.C. Section 1331 to Award Back Pay 
Against the Government to Adams. 14

C. The District Court had Jurisdiction Under 28 
U.S.C. Section 1331 to Award Adams Damages 
Against the Individual Defendants Personally. 19

D. 42 U.S.C. Section 1981 Forbids Racial Dis­
crimination in Employment by Federal 
Officials. 21

E. Both the Federal Mandamus Act and the Ad­
ministrative Procedure Act Give the Court 
Jurisdiction to Compel Defendants to Obey 
a Binding Administrative Adjudication. 22

1. Mandamus Jurisdiction. 22

2. Administrative Procedure Act 
Jurisdiction. 23

F. Recapitulation. 24

IV. CONCLUSION 26

APPENDIX "A" 27

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TABLE OF AUTHORITIES

Cases

Page

Abbott Laboratories v. Gardner,
387 U.S. 136 (1967)..............................  24

Arizona State Dept, of Public Welfare v. HEW,
499 F . 2d 456 (9th Cir. 1971) ....................  24

Backowski v. Brennan,
502 F . 2d 79 (3rd Cir. 1974) ....................  24

Baker v. F & F Investment Co.,
489 F . 2d 829 (7th Cir. 1973) ...................  21

Bernardi v. Butz,
7 EPD par. 9381 (N.D. Cal. 1974) . . . . . . . .  11

Bethea v. Reid,
445 F . 2d 1163 (3rd Cir. 1 9 7 2 ) ............... 19

Bivens v. Six Unknown Narcotics Agents,
403 U.S. 388 (1971) . . . . . . . . . . . . . . .  19

Bivens v. Six Unknown Narcotics Agents,
456 F . 2d 1339 (1972) ............................. 21

Bolling v. Sharpe,
347 U.S. 497 (1954) ............................ 11, 15

Bowers v. Campbell,
505 F . 2d 1155 (9th Cir. 1 9 7 4 ) ...................  17, 21

Bradley v. School Board of City of Richmond,
____ U.S.  94 S.Ct. 2006 (1974). . . . . . .  12, 13, 14, 17

Brown v. General Services Administration,
507 F . 2d 1300 (2nd Cir. 1 9 7 4 ) ...................  11, 14

Butler v. U.S.,
365 F.Supp. 1035 (D. Haw. 1 9 7 3 ) .................  19

Chaudoin v. Atkinson,
494 F . 2d 1323 (3rd Cir. 1974) ....................  23

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Page

Citizens to Preserve Overton Park v. Volpe,
401 U.S. 402 (1971) . ............................. 24

City of New York v. Ruckelshaus,
358 F.Supp. 669 (D.D.C.), aff'd,
____ U.S. ___ 43 U.S.L.W. 4214 (1975) . . . . .  16

Cotter Corporation v. Seaborg,
370 F . 2d 686 (10th Cir. 1 9 6 6 ) ............... .. . 16

Dugan v. Rank,
372 U.S. 609 (1963) ............................. 16, 17, 18

Eastland v. TVA,
9 EPD par. 9927 (N.D. Ala. 1975) ............... 11

Fears v. Catlin,
377 F.Supp. 291 (D. Colo. 1974) ...............  11

Feliciano v. Laird,
426 F . 2d 424 (2nd Cir. 1970) ............. .. 23

Ficklin v. Sabatini,
378 F.Supp. 19 (E.D. Pa. 1974) . . . . . . . . .  11

Gaballah v. Johnson,
No. 72 C 1973 (N.D. 111. 1973) .................  20

GardeIs v. Murphy,
377 F.Supp. 1230 (N.D. 111. 1 9 7 4 ) ...............  19

Gardner v. Toilet Goods Ass'n.,
382 U.S. 167 (1967)................... .. 24

Gautreaux v. Romney,
448 F . 2d 731 (7th Cir. 1971) ...................  15, 16

Gnotta v. United States,
415 F.2d 1271 (8th Cir.1969), cert, denied,
397 U.S. 934 (1970)..............................  17

Hahn v. Gottlieb,
430 F . 2d 1243 (1st Cir. 1 9 7 0 ) ...................  23

Ha Howell v. Commons,
239 U.S. 506 (1916) ............................... 12

-iii-



Page

Hartigh v. Latin,
485 F. 2d 1068 (D.C. Cir. 1973), cert, denied,
415 U.S. 948 (1974) ......... . . . . . . . . . . .  19

Hill-Vincent v. Richardson,
359 F.Supp. 308 (N.D. 111. 1973) . . . . . . . . .  11, 15, 19

Howard v. Hodgson,
490 F.2d 1194 (8th Cir. 1974) . . . . . . . . .  23

Jackson v. U.S. Civil Service Commission,
379 F.Supp. 589 (S.D. Tex. 1973) . . . . . . . .  11

Johnson v. Allredge,
349 F.Supp. 1230 (N.D. Pa. 1972),
modified, 488 F.2d 820 (3rd Cir. 1973) . . . . . .  19

Johnson v. Froehlke,
5 FEP Cases 1138 (D. Md. 1 9 7 3 ) ...................  11

Johnson v. Lybecker,
7 EPD par. 9191 (D. Ore. 1 9 7 4 ) ...................  11

Kelley v. Metropolitan Board of Education,
372 F.Supp. 528 (N.D. Tenn. 1973)............... . 24

Koger v. Ball,
497 F . 2d 702 (4th Cir. 1 9 7 4 ) ............... .. 11, 14

Larson v. Domestic & Foreign Commerce,
337 U.S. 682 (1949) ................. ............  16, 18

Moseley v. U.S.,
Civil Action No. 72-380-S (S.D. Cal. 1973) . . . .  11

Palmer v. Rogers,
6 EPD par. 8822 (D.D.C. 1973)........ .. 15 , 17

Penn v. Schlesinger,
490 F.2d 700 (5th Cir. 1974), overruled 497
F. 2d 970 (5th Cir. 1974) ........ ............ .. 15, 17, 18, 21, 23

Penn v. U ,S . ,
350 F.Supp. 752 (N.D. Ala. 1972), aff'd., 
in part, rev'd. in part, 490 F .2d 700 
(5th Cir. 1973), overruled, 497 F.2d 970 
(5th Cir. 1974) 18



Page

Peoples v. U.S. Dept, of Agriculture,
--427 F . 2d 561 {D.C'T'Cir. 1970) . ........... .. 23

Place v. Weinberger,
• 497 F .2d 412 (6 th Cir. 1974), cert, denied,

U.S. ____, 95 S.Ct. 526 (1974)............. , 1 1

Rusk v. Cort.,
369 U . S~. 367 (1962) ............... ............  24

Sampeyreac v. United States,
32 U.S. ""('7 Peters) 222 (1883) ....................  12

Schatten v. U.S.,
419 F . 2d 187" (6th Cir. 1969) ...................  23

Scheunemann v. U.S.,
358 F.Supp. 875 (W.D. 111. 1973).................  20

Schooner Peggy,
1 Cranch 103 (1801) ............................... 13

Sikora v. Brenner,
379 F . 2d 134 TD.C. Cir. 1 9 6 7 ) ...................  24

State Highway Commission v. Volpe,
479 F . 2d 1099 (8th Cir. 1973) .................  15, 24

States Marine Lines v. Schultz,
498”F.2d 1146 (4th Cir. 1974) .................. 19

Thorpe v. Housing Authority of Durham,
393 U.S. 289 (1969) 7 7 “ . . . . . 7 ............. 12

Train v. City of New York,
____ U.S. , 43 U.S.L.W. 4209 (1975)........  15, 24

U.S. ex rel. Harrison v. Pace,
380 F.Supp. 107 (E.D. Pa. 1 9 7 4 ) ................. 19

U.S. ex rel. Moore v. Koelzer,
457 Fr2d~892 (3rd Cir. 1972) ...................  19

U.S. v. Nixon,
U.S. , 94 S.Ct. 3090 (1974).............  23

- Waters v. Wisconsin Steel Works,
¥27 F.2’d.¥76 (7th Cir. 1970TT cert, denied,
400 U.S. 911 (1970)..................... .. . . . 21

-v-



Page

Womack v . Lynn,
504 F . 2d 267 (D.C. Cir. 1974) ......................  11

Wood v, Strickland,
--- U.S. , ~43 U.S.L.W. 4293 (1975)........... 20

Statutes

Administrative Procedure Act,
Section 10, 5 U.S.C. Sections 701-706

Civil Rights Act of 1870, 
42 U.S.C. Section 1981 1,

24

Civil Rights Act of 1964, as amended, 
Title VII, Section 717, 42 U.S.C. 
Section 2000e-16 . . .............

Federal Mandamus Act,
28 U.S.C. Section 1363    9,

5 U.S.C. Section 7 1 5 1 ..................................12

28 U.S.C. Section 1 3 3 1 ...............................*1'16
24

28 U.S.C. Section 1343(4) . . . . .  ...............  .9,

Regulations and Orders

Civil Service Commission Equal Opportunity 
Regulations,
5 CFR Part 713 ...............

Executive Order 11478,
42 U.S.C. Section 2000e note (1970) . .

Other Authorities

The Need for Statutory Reform of Sovereign Immunity, 
68 Mich.L.Rev. 387 (1970) . . . . .  .............

-vi-

22, 23, 24, 25

9, 20, 21, 22,

9, 10, 11, 12,
14, 24, 25

22, 25

8, 9, 14, 15, 
19, 20, 22, 
25

21, 24

3, 4



I. STATEMENT OF THE ISSUES

1. Did the district court err in holding that the 1972 

Amendments to Title VII of the Civil Rights Act of 1964 gave it no 

jurisdiction over a federal employee’s racial discrimination 

complaint that was administratively pending on the Amendments' 

effective date?
2. Did the district court, consistent with the doctrine

of sovereign immunity, have jurisdiction under 28 U.S.C. Section 1331 

to issue an order against federal officials that would have required 

the government to pay the plaintiff the salary that was withheld 

from him because of racial discrimination?
3. Do federal officials enjoy absolute immunity from 

personal liability in suits under 28 U.S.C. Section 1331 for 

deliberate racial discrimination in employment?
4. Did the district court err in holding that 42 U.S.C. 

Section 1981 does not prohibit racial discrimination in employment 

by federal officials?
5. Did the district court err in holding that it was power­

less to compel federal officials to obey a binding administrative 

adjudication?

11• STATEMENT OF THE CASE
Kenneth Q. Adams, a black employee of the Federal High­

way Administration (FHWA), filed this suit in the District Court 

for the Northern District of Illinois on May 29, 1974. In Count I 

of his First Amended Complaint he alleged that the defendants, who 

are officials of FHWA and its parent Department of Transportation

- 1 -



(DOT), racially discriminated against him by failing to pay him on 

the same basis as an identically situated white employee. In Count 

II, he charged that defendants violated due process by disobeying 

two binding decisions rendered in his favor on his administrative 

complaint of discrimination. Both sides moved for summary judgment, 

and defendants additionally moved to dismiss. On January 28, 1975, 

Judge William J. Bauer dismissed the entire complaint for lack of 

jurisdiction. Adams appeals from that judgment.

The facts of this case are as confusing as they are out-
V

rageous. Adams went to work in 1966 for FHWA as an "Equal 

Opportunity Officer" at pay grade GS-11. In 1967 he was promoted 

to GS-12. In November 1970, Adams' superiors created two new 

positions called "Civil Rights Specialist, GS-13", and assigned him 

to one of them; yet his pay was kept at GS-12. In his new position, 

he performed identical duties to those of the other "Civil Rights 

Specialist", Clifford Wavrinek, a GS-13, who is white. At all times, 

defendants have recognized Adams' performance as "commendable". An 

audit into the ranking of the new position concluded that it was 

properly ranked at GS-13. (AR Enel. 15, p. 1). Thus, Adams'

I7  ~
The factual record upon which the District Court ruled consisted of:

(1) a so-called "administrative record" filed by defendants with their 
summary judgment motion, and (2) an affidavit by Adams attached to 
his summary judgment motion.

The "Administrative Record" is included in the Record on Appeal in 
two bound volumes: (1) the transcript of a hearing before a Civil
Service Commission complaints examiner, and (2) a second volume which 
includes 14 numbered "Exhibits" followed by 16 numbered "Enclosures". 
This brief cites only to the exhibits and enclosures, using the ab­
breviations "AR Ex. ___" or "AR Enel. ___", respectively. The term
"administrative record" is misleading, for, as will be explained in 
the text, many of the "enclosures" consist of documents that were 
deliberately kept secret from Adams until he filed this lawsuit.

- 2-



grievance was elementary. He was occupying a GS-13 position doing 

the same work as a white GS-13 employee, and doing it commendably, 

yet the defendants would not pay him at the GS-13 level.

Adams consequently filed a complaint of racial discrimina­

tion under the Civil Service Commission's "Equal Opportunity Regula­

tions", 5 CFR Part 713. A three-step process ensued. At each stage, 

Adams emerged victorious, only to have defendants refuse to abide 

by the result.

(1) The Investigation. The first stage of processing the 

complaint was an investigation by DOT'S Office of Civil Rights. On 

April 21, 1972, that Office issued its report (AR Enel. 8). The 

report found that Adams had been assigned and was carrying out GS-13 

level responsibilities and that Clifford Wavrinek, a white GS-13, 

was doing identical work. It therefore recommended that Adams be 

promoted to GS-13. FHWA refused to do so. (AR Ex. 2, 3).

(2) The Agency Decision. Since defendants had refused to 

follow the investigatory report's recommendations, Adams requested 

a hearing before a Civil Service Commission Examiner pursuant to

5 CFR Section 713.217. At the hearing on August 8, 1972, FHWA 

defended its behavior by asserting that: (1) it had created the new 

"Civil Rights Specialist, GS-13" positions without getting approval 
from its Washington office; (2) thereafter, its Washington office 

had taken no action to "approve" these new positions; and (3) there­

fore it had been impossible to promote Adams. This defense was 

castigated by Examiner Phillip Miller in his report, issued on

-3



September 29, 1972 (AR Ex. 4). The Examiner, however, finding no 

evidence of racist motives on the part of specific FHWA officials, 

found that Adams' complaint of discrimination based on race was 
"not supported by evidence of record". He did find, however, that 

Adams had been assigned GS-13 duties while being paid as a GS-12, 

while Clifford Wavrinek had been assigned identical duties and paid 

at GS-13. The Examiner therefore recommended that FHWA take prompt 

corrective action with respect to Adams' position.
Under 5 CFR Section 712.221, the Examiner's recommended 

decision went to the Secretary of DOT for adoption, modification or 

rejection. The Secretary of DOT had delegated this decision to DOT'S 

Director of Equal Employment Opportunity (AR Enel. 2). On November 

6, 1972, that Director, defendant James Frazier, issued the final 

agency decision on Adams' complaint (AR Ex. 5). Frazier questioned 

(but did not reverse) the Examiner's finding on the race discrimina­

tion question, but he again found that Adams had been paid at GS-12 

while doing GS-13 work and that a white employee had been treated

differently. His decision therefore ordered FHWA to promote Adams
2/

to GS-13.
Although this was the final agency decision, FHWA refused 

to obey it. On November 21, 1972, the Executive Director of FHWA 

wrote a secret memorandum to Frazier informing him that "we are un­

able to comply" with the order that Adams be promoted (AR Ex. 6).

y  “
No finding of racial discrimination was necessary to support this 

order. 5 CFR Section 713.221 provides: "The decision of the agency 
shall require any remedial action authorized by law determined to 
be necessary or desirable to resolve the issues of discrimination 
and to promote the policy of equal opportunity, whether or not there 
is a finding of discrimination." (Emphasis added.)

-4-



Simultaneously, he secretly wrote DOT’S Assistant Secretary for Ad­

ministration, asking him to direct Frazier to rescind that order 

(AR Ex. 7) . Adams was never shown any of these documents. Their 

existence became known to him only when they were filed with the 

district court two years later in the so-called "Administrative 

Record". He was utterly unaware of defendants' reasons for refusing 

to obey the order, and of their secret machinations to undo the 

decision in his favor.
Some time between December 5 and December 27, 1972, DOT'S

Assistant Secretary for Administration secretly purported to reverse
1/the "final agency decision" to promote Adams. Adams was never told

that this had happened. Adams, in fact, has never been notified in

any form of any "final agency decision" on his complaint other than

Frazier's original favorable decision of November 6, 1972. When

his promotion was not forthcoming, Adams barraged the agency with

telephone calls, letters, and telegrams; yet no one in DOT or FHWA

would divulge to him that he had not won his case but lost it.
1/(Adams Aff., par. 3).

(3) The Revised Decision. Matters stood in this state of

3/
The procedure by which this secret "reversal" took place is apparent 

from AR Ex. 8. The Assistant Secretary for Administration sent a 
secret memorandum to the Under Secretary of DOT, recommending that 
Frazier be ordered to "retract" his decision. The Under Secretary re­
turned the memorandum with his initials on it to indicate concurrence 
with that recommendation. This crucial decision, which purported to 
nullify Adams' rights, was made in secret by a busy administrator 
putting his initials on the line his subordinate told him to put them 
on.

4/
Adams' affidavit, cited "Adams Aff.", is attached to his summary 

judgment motion below.

-5-



administrative limbo when on February 20, 1973, Frazier wrote Adams 

to inform him that DOT intended to "reopen" his complaint of dis­

crimination. Frazier likewise notified FHWA of this intention by 

memorandum of March 28, 1973 (AR Ex. 10). Frazier's decision to 

"reopen" the case was prompted by his discovery that Wavrinek had 

left the agency in January, 1972, and that almost instantaneously 

thereafter Adams had been reassigned ordinary GS-12 duties. FHWA 

wrote Frazier on April 6, 1973, stating that it had no objection to 

Frazier's "reopening" the complaint to consider the reassignment 

of Adams (AR Ex. 11). Adams likewise consented to the "reopening", 

noting in a letter to Frazier that he could not understand why FHWA 

had not complied with the "final agency decision " (AR Ex. 12).
On August 16, 1973, Frazier issued a new "final agency 

decision" on Adams' "reopened" complaint (AR Enel. 16). This time 

Frazier found that FHWA's treatment of Adams had indeed been racially 

discriminatory. He found that the agency had deliberately refused 

to promote Adams to GS-13 even though an audit into Adams' job 
responsibilities had rated tham at the GS-13 level. He reaffirmed 

his earlier finding that Adams and Wavrinek had been doing identical 

work for unequal pay. He found that FHWA had deliberately delayed 

its abolition of the "Civil Rights Specialist" position until 
Wavrinek left the agency so as not to take any action that could nave 

reduced this white employee's salary. And he found that FHWA had 

abolished Adams’ GS-13 job, rather than promote him, in retaliation 

for his having filed a discrimination complaint. Frazier hence 
ordered that FHWA formally declare whether Adams' duties had been

— 6 —



properly classified at the GS-13 level, and if they had been, to 

promote him retroactively.
But Adams was never notified of this new decision in his

favor. It was somehow suppressed, and there is not the slightest

explanation in the "administrative record" how. Adams spent the

next nine months trying to find out what had happened. He had heard

rumors that a new decision had been issued, but no one would tell

him what it said. At no time did defendants or anyone else inform

him that the original "final agency decision" in his favor had been

secretly "reversed", or that a new "final agency decision" had been
5/

rendered in his favor (Adams Aff., par. 4).
When these attempts to discover the truth failed, Adams 

filed the present lawsuit on May 29, 1974. To find out what on earth 

was going on, Adams filed a notice to depose James Frazier. However, 

the defendants refused to produce him. Instead, they filed the 

"administrative record", including crucial documents that up till 

then had been kept secret from Adams. Simultaneously, defendants 

moved: (a) to dismiss the lawsuit for lack of jurisdiction; (b) in

the alternative, to grant summary judgment for them; and (c) for a 

protective order barring Adams from taking any discovery. In res­

ponse, Adams reviewed the "administrative record" and discovered, 

for the first time, how FHWA had succeeded in suppressing two binding 

decisions in his favor. Adams then obtained leave of the court to 

__
Adams was finally promoted to GS-13 in September, 1973. He was not 

given back pay and was not placed at the GS-13 step level he would have 
occupied had defendants promoted him in November, 1970.

- 7 -



file an amended complaint and his own motion for summary judg­

ment .
On January 28, 1975, Judge Bauer granted the defendants’ 

motion to dismiss. In a two-page order reprinted in full in 

Appendix "A" to this brief, the Judge held that he lacked jurisdiction 

of the case.

III. ARGUMENT
The question on this appeal is whether the district court 

had jurisdiction to award relief to a federal employee who has been 

discriminated against on the basis of race, who has twice won a final 

agency adjudication in his favor, and who is still empty-handed.

The district court dismissed Kenneth Adams' complaint for the sole 

reason that the government's mistreatment of him began in 1970, be­

fore Title VII of the Civil Rights Act of 1964 became applicable 

to the federal government. That dismissal was in error. The dis­

trict court had jurisdiction of this case under Title VII and other 

provisions as well. We ask this Court to reverse and remand.
Adams' complaint raises five important jurisdictional issues. 

The first is whether the 1972 Amendments to Title VII of the Civil 

Rights Act of 1964 give the district court jurisdiction of federal 

employee discrimination complaints that were pending under the Civil 

Service Commission's complaints procedure as of the Amendments' 

effective date. The second is whether, independent of Title VII, 
the doctrine of sovereign immunity bars the court from taking juris­

diction under 28 U.S.C. Section 1331 and other provisions and re­

quiring the government to pay Adams the salary and other benefits he

- 8-



would have received but for racial discrimination against him. The 

third issue is whether the defendant officials enjoy absolute 

immunity from personal liability in a suit based on 28 U.S.C. Section 

1331 and other provisions for deliberate racial discrimination 

against Adams. The fourth issue is whether 42 U.S.C. Section 1981 

and 28 U.S.C. Section 1343(4) give the court subject matter juris­

diction over racial discrimination by federal officials. The fifth 

issue is whether the Federal Mandamus Act, 28 U.S.C. Section 1361, 

and the Administrative Procedure Act, 5 U.S.C. Sections 701-706, 
give the district court jurisdiction to order federal officials to 

obey a binding administrative adjudication.
By dismissing the complaint, the district court in effect

1 /resolved all these issues against Adams. Precisely the opposite 

result was called for.

A. The 1972 Amendments to Title VII Give the
District Court Jurisdiction Over Adams' Claim.

Effective March 24, 1972, Congress added Section 717 to 

Title VII to allow federal employees to bring discrimination suits 

in the district courts after exhausting the Civil Service Commission's

y All these bases of jurisdiction are explicitly asserted in the 
First Amended Complaint, and all five issues were fully briefed to 
the district court. However, the court's order of dismissal 
identifies only the Title VII issue and brushes aside the others by 
stating, without discussion or citation, that "none of the other 
sections cited by plaintiffs can serve as (an) independent basis of 
jurisdiction".

-9-



1/complaints procedure. Both reason and precedent requxre the con­

clusion that Section 717 gives the district courts jurisdiction over 

discrimination complaints which, like Adams', were pending and un­

resolved under the Commission procedure on the section's effective 
2/date.

In holding to the contrary, the district court mistakenly 

claimed it was following "the weight of authority". In fact, of the

Section 717 of Title VII, as amended, 42 U.S.C. Section 2000e-16, 
reads, in relevant part:

Section 717(a). All personnel actions affecting employees 
* * * in executive agencies * * * 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 717(a), or by the Civil Service Com­
mission upon an appeal from a decision or order of such 
department, agency, or unit on a complaint of discrimina­
tion based on race, color, religion, sex or national 
origin, brought pursuant to subsection (a) ot this section, 
Executive Order 11478 or any succeeding Executive Orders, 
or after one hundred and eighty days from the filing of the 
initial charge with the department, agency, or unit or^ 
with the Civil Service Commission on appeal from a decision 
or order of such department, agency, or unit until such time 
as final action may be taken by a department, agency, or 
unit, an employee or applicant for employment, if aggrieved 
by the final disposition of his complaint, or by the failure 
to take final action on his complaint, may file a civil 
action as provided in section 706, in which civil action 
the head of the department, agency, or unit, as appropriate, 
shall be the defendant.

Adams filed his administrative complaint in late 1971, On March 
24, 1972, the effective date of Section 717, the complaint was be­
ing informally investigated. Adams did not receive an administrative 
hearing until August 8, 1972, or a "final agency decision" until 
November 6, 1972.

- 10-



four Circuit Courts of Appeals that have considered the issue as of

this writing, three have held that Section 717 does give jurisdiction

over complaints being administratively processed on its effective

date. Brown v. General Services Administration, 507 F.2d 1300
1/(2nd Cir. 1974); Womack v. Lynn, 504 F,2d 267 (D.C. Cir. 1974);

Koger v. Ball, 497 F.2d 702 (4th Cir. 1974). Only one Circuit has

held to the contrary. Place v. Weinberger, 497 F.2d 412 (6th Cir.
5/

1974), cert, denied, 95 S.Ct. 526 (1974). The majority of district

courts in the remaining Circuits have taken the Koqer-Brown-Womack
6/

position.
This is not only the majority position but the right 

position. Section 717(c) gives no new substantive rights to federal 

employees, for it has always been unlawful for the federal govern­

ment to discriminate on the basis of race. Such discrimination 

violates the Fifth Amendment. Bolling v. Sharpe, 347 U.S. 497 (1954).

4 7
Inexplicably, the district court cited Brown as the leading case 

in support of its holding, although it holds just the opposite of 
what the district court appears to have thought. See 507 F.2d at 
1304-1306. The district court also relied on Palmer v. Rogers, 6 
EPD par. 8822 (D.D.C. 1973), which was overruled in October 1974 by 
Womack.
5/Three Justices (White, Stewart, and Douglas) dissented from the 
denial of certiorari in Place.
—^Holding that Section 717 gives jurisdiction over complaints that 
were pending administratively on March 24, 1972, are Fears v. Gatlin,
377 F.Supp. 291 (D. Colo. 1974); Jackson v. U.S. Civil Service Comm., 
379 F.Supp. 589 (S.D. Tex. 1973); Johnson v. Froehlke, 5 FEP Cases 
1138 (D. Md. 1973); Johnson v. Lybecker, 7 EPD par. 9191 (D. Ore. 1974) 
Bernard! v. Butz, 7 EPD par. 9381 (N.D. Cal. 1974); Ficklin v. Sabatini
378 F.Supp. 19 (E.D. Pa. 1974).

Taking the opposite position are Hill-Vincent v. Richardson, 359 
F.Supp. 308 (N.D. 111. 1973); Moseley v. U.S., unreported, Civil Action 
No. 72-380-S (S.D. Cal. 1973); and Eastland v. TVA, 9 EPD par. 9927 
(N.D. Ala. 1975) .

- 11-



It also violates Executive Order 11478, 42 U.S.C. Section 2000e 

note (1970); it violates the Civil Service Regulations implementing 

that order, 5 CFR Section 713.201 et seq.; and it violates 5 U.S.C. 

Section 7151, in which Congress declared in 1966 that it is the 

policy of the United States to assure equal opportunity for federal 

employees regardless of race.
Hence Section 717 (c) merely added a new remedy to enforce 

a pre-exisiting right. This brings into play the rule, repeatedly 

emphasized by the Supreme Court, that procedural statutes that affect 

remedies are applicable to cases pending at the time of enactment.
In Sampeyreac v. United States, 32 U.S. (7 Peters) 222, 239 (1883), 

the Court said:
(C)onsidering the Act . . .  as providing a 
remedy only, it is entirely unexceptionable.
It has been repeatedly held in this court that 
the retrospective operation of such a law forms 
no objection to it. Almost every law, pro­
viding a new remedy, affects and operates upon 
causes of action exisiting at the time the law 
is passed.

In HaHowell v. Commons, 239 U.S. 506, 508 (1916), Mr. Justice White 

wrote that a statute that "takes away no substantive right, but 

simply changes the tribunal that is to hear the case" should be 
applied to pending cases. In Thorpe v. Housing Authority of Durham, 

393 U.S. 289 (1969), the Supreme Court held that certain new pro­

cedures for handling evictions in public housing must be applied 
retroactively to a case that was already pending when the procedures 

were enacted.
Recently, in Bradley v. School Board of City of Richmond,

94 S.Ct. 2006 (1974), the Court, through Mr. Justice Blackmun,

- 12-



conducted a scholarly review of how a change in law affects a 

pending case. While an appeal was pending in the Richmond school 

desegregation litigation, Congress had enacted a statute providing 

for the award of attorneys' fees to the prevailing party. When the 
plaintiffs won the suit and asked for attorneys' fees, the defendants 

strenuously argued that "legislation is not to be given retrospective 

effect unless Congress has clearly indicated an intention to have the 

statute applied in that manner". The Court explicitly rejected that 

view and reaffirmed that "a court is to apply the law in effect at 

the time of its decision, unless doing so would result in manifest 

injustice or there is statutory direction or legislative history 

to the contrary". 94 S.Ct. at 2016. Thus the burden is on the 

defendants in this case to show that applying Section 717 (c) to 

cases administratively pending on the section's effective date would 

result in "manifest injustice" or would violate some statutory 

direction or legislative history.
Defendants cannot meet this burden. Clearly there is no 

"manifest injustice" in allowing Adams to sue FHWA for its out-
iz

rageous behavior toward him. As to legislative history, there is 

none; in the entire Congressional consideration of the 1972 Amend­

ments to Title VII, there was no discussion of whether Section 717 

would be retroactive or prospective. Finally, nothing in the statu­
tory text suggests an intent to confine Section 717 to prospective

V
The Supreme Court has repeatedly remarked that while retroactive 

application of a statute in a suit between private individuals might 
cause "manifest injustice", this is unlikely to be the case in a . 
suit by an individual against a government. The Schooner Peggy, 1 
Cranch 103, 110 (1801); Bradley v. School Board, 94 S.Ct. 2006, 2019 
(1974) .

-13-



application. Section 717, read literally, applies to Adams' claim.

Courts taking a contrary position have referred to Section 

14 of the 1972 Amendments, 42 U.S.C. Section 2000e-5, note, which 

provided that certain amendments to Section 706 of Title VII (which 

governs procedure in civil suits against private employers)would be 

applicable to charges pending before the EEOC on the effective date 
of the Amendments. Since Section 717 is not an amendment to Section 

706, these courts have inferred an intent by Congress to make gUlZ 

the amendments to Section 706 retroactive. However, as the Fourth 

and Second Circuits pointed out in Koger and Brown, supra, that is 

unconvincing. Section 14 was proposed and approved without the 

slighest comment by anyone about its effect or lack of effect on 

Section 717. See the careful analysis in Koger, 497 F.2d at 707- 

708. This argument falls far short of the convincing proof of 

Congressional intent which defendants must offer under Bradley m  

order to confine Section 717 to prospective application.
Finally, there is no danger that applying Section 717 to 

charges administratively pending in March 1972 will swamp the dis­

trict courts with new litigation. There can only be a handful of 

cases which arose before 1972 and are still pending. Indeed, Adams’ 
case would have ended in 1972 had FHWA obeyed the Civil Service Com­

mission rules.

B. The District Court Had Jurisdiction Under 
28 U.S.C. Section 1331 to Award Back Pay 
Against the Government to Adams.

Adams’ suit satisfies the explicit requirements of "federal 

Question" jurisdiction under 28 U.S.C. Section 1331. He alleges 
damages of more than $10,000, and his claim arises under the Constitu-

-14



tion since racial discrimination by federal officials violates the 

Fifth Amendment. Bolling v. Sharpe, 347 U.S. 497, 499-500 (1954); 

Gautreaux v. Romney, 448 F.2d 731, 438-740 (7th Cir. 1971); Hill- 

Vincent v. Richardson, 359 F.Supp. 308, 309 (N.D. 111. 1973). The 

question is whether "sovereign immunity" bars the court from enter­

ing an order against these officials which would in effect require

the agency to pay Adams what he would have received had these de-
8/

fendants not acted unconstitutionally. - A careful analysis will show 

that no such bar exists.

It is necessary to begin by refuting certain blanket

assertions. First, it is sometimes asserted that sovereign immunity

bars any suit that would order the treasurv to pay out money or
9/

otherwise "operate against the government". This is wrong, as was

recently illustrated in dramatic fashion by Train v. City of New York,

____ U.S. ____, 43 U.S.L.W. 4209 (1975), There the Supreme Court

affirmed a judgment against the Administrator of the Environmental

Protection Agency ordering him to release several billion dollars
10/

in illegally impounded funds. Next,, some courts have dismissed 

suits against federal officers merely on the assertion that 28 U.S.C. 

Section 1331 does not waive sovereign immunity as against the federal

8/
Note that this is a different issue than whether the court had 

jurisdiction under 28 U.S.C. Section 1331 to award Adams damages 
against these officials personally. That issue is discussed below 
in Section C.
9/— See, e .g ., Penn v. Schlesinger, 498 F.2d 700, 705 (5th Cir. 1973), 
overruled, 497 F.2d 970 (5th Cir. 1974); Palmer v. Rogers, 6 EPD 
par. 8822 (D.D.C. 1973) at p. 5494.
10/ In many other cases, federal courts have overruled sovereign im­
munity objections in the face of suits where the relief sought would 
cost the government large amounts of money. See, e .g ,, State High­
way Commission v. Volpe, 479 F .2d 1099 (8th Cir. 1973); Note, The 
Need for Statutory Reform of Sovereign Immunity, 68 Mich.L.Rev. 387 
(1970) .

-15-



While that statement is true, nevertheless Section11/
government.
1331 will support suits which have monetary or administrative impact 

on the federal government If one of the recognized exceptions to 

sovereign immunity applies. See, City of New York v. Ruckelshaus,

358 F.Supp. 669, 672-673 (D.D.C. 1973), aff'd., ____U.S. _____, 43

U.S.L.W. 4214 (1975).
Those familiar exceptions, defined in Larson v. Domestic 

& Foreign Commerce Corporation, 337 U.S. 682 (1949) and Dugan v.

Rank, 372 U.S. 609 (1963), are that suits may be brought against 

federal officers who have acted beyond their statutory powers or, 

even though acting within the scope of their authority where "the 

powers themselves or the manner in which they are exercised are 

constitutionally void". Dugan, 372 U.S. at 621-622 (emphasis added). 

Under such circumstances, the court may order "specific relief" 

against the officers even though that relief may well have a con­

siderable impact on the operations of the government or the treasury.

We submit that racial discrimination in employment falls 
precisely within the Larson-Dugan exceptions. In Gautreaux v. Romney, 

supra, in which federal officials were sued for contributing to 

racial segregation in public housing, this Court held:

In any case, the doctrine (of sovereign 
immunity) does not bar a suit such as 
this which is challenging alleged un­
constitutional and unauthorized conduct 
by a federal officer. (448 F.2d at 735)

n y  "
See, e .g ., Cotter Corporation v. Seaborg, 370 F.2d 686, 691- 

692 (10th Cir. 1966).

-16-



If a contribution by federal officials to racial discrimination

in housing falls into the Dugan "constitutionally void" category,

then surely so does deliberate racial discrimination in employment.

Two Courts of Appeals have recently so held. Bowers v. Campbell,

505 F .2d 1155, 1158 (9th Cir. 1974); Penn v. Schlesinger, 490 F.2d

700, 704 (5th Cir. 1973), overruled on other grounds, 497 F.2d

970 (5th Cir. 1974). To quote Penn:
(W)e cannot infer that federal officials 
responsible for making employment con­
tracts are acting within the scope of their 
duties on behalf of the sovereign when they 
act in a racially discriminatory manner.
(490 F .2d at 704).

Opposed to Bowers and Penn is a line of cases stemming from 

Gnotta v. United States, 415 F.2d 1271 (8th Cir. 1969), cert. 

denied, 397 U.S. 934 (1970). Gnotta held that federal officials' 

refusal to promote an employee on the basis of national origin was 

"obviously not a case which concerns either of the exceptions recog­

nized in Dugan v. Rank." 415 F.2d at 1277. The Eighth Circuit did 

not elaborate on this sweeping statement, and we submit that it is 

both unsound and at odds with this Court's reasoning in Gatreaux.
In any event, however, the present case is crucially distinguishable 

from Gnotta. That case involved the failure of federal officials 

to select Gnotta for promotion. Since the selection of candidates 
for promotion is normally a discretionary matter, the Eighth Circuit

apparently viewed it as immaterial whether defendants violated the
12/

Fifth Amendment in the exercise of their discretion. Adams'

12/—  See the explanation of Gnotta in Palmer v. Rogers, 6 EPD 8822 
(D.D.C. 1973), which is the only case relying on Gnotta that offers 
a serious analysis to justify Gnotta's ruling.

-17-



case, however, did not involve discretionary decisions at all.

When the defendants created a GS-13 position called "Equal Opportunity 

Specialist", GS-13", and put Adams in it, they were absolutely re­

quired by law to pay him at the GS-13 level. Their refusal to do so

was outside any conceivable discretionary authority they might have 

had.

- Furthermore, a back pay order against defendants, payable 

by the government, is "specific relief" allowable under the Larson- 

Dugan doctrine. The Supreme Court defined "specific relief" in 

Larson as "the recovery of specific property or monies, ejectment 

from land, or injunction either directing or restraining the de­

fendant officer's actions". 337 U.S. at 688 (emphasis added).

The Court's analysis made clear that where a plaintiff, through 

officials' unconstitutional actions, is deprived of identifiable 

monies or property, a court can order that money or property re­

stored to plaintiff, since then the government holds that money or 

property only as the result of an "unconstitutional taking". See 

337 U.S. at 696-702. This is precisely what happened to Adams.

The defendants put Adams in a GS-13 job, -yet because of his race 

they would not pay him the GS-13 salary the law entitled him to.

Adams is entitled under Larson to recover that part of his salary
11/that defendants illegally deprived him of.

11/
See the careful analysis in Penn v. United States, 350 F.Supp.

752, 755-756 (N.D. Ala. 1972), holding that reinstatement with back 
pay of a federal employee who has been discriminated against is 
"specific relief" allowable under Larson. This is apparently the only 
federal discrimination case even to consider the "specific relief" 
issue. However, on appeal, the Fifth Circuit overruled the trial judge 
on the back pay question, stating only that back pay would impinge 
upon the Treasury. 490 F.2d at 705.

-18-



C. The District Court had Jurisdiction Under 28 
U.S.C. Section 1331 to Award Adams Damages 
Against the Individual Defendants Personally.

The district court also had jurisdiction under 28 U.S.C.

Section 1331 to award damages against the individual defendants

personally for deliberate racial discrimination against Adams. The

Supreme Court held in Bivens v. Six Unknown Narcotics Agents, 403

U.S. 388 (1971) that Section 1331 gives district courts jurisdiction

in damage suits against federal officials who violate the Fourth

Amendment. Numerous courts have now sustained similar suits for

violation of the Fifth Amendment's due process clause. Hartigh v .
Latin, 485 F.2d 1068, 1071 (D.C, Cir. 1973), cert, denied, 415 U.S.

948 (1974); U.S. ex rel. Moore v. Koelzer, 457 F.2d 892, 894 (3rd

Cir. 1972); Bethea v, Reid, 445 F.2d 1163 (3rd Cir. 1972); States
14/

Marine Lines v. Schultz, 498 F .2d 1146, 1156-1157 (4th Cir. 1974). 

Since Adams alleges that the defendants deliberately discriminated 

against him on racial grounds in violation of the Fifth Amendment, 

the district court had jurisdiction to award damages against them.

The implied holding to the contrary in the court's order 
of dismissal contradicted three other decisions in the Northern 

District of Illinois. In Hill-Vincent v. Richardson, 359 F.Supp.

308, 309 (N.D. 111. 1973), Judge McLaren sustained a Section 1331 

damage count against federal officials alleged to have denied plain-

117 --------------
For lower court decisions reaching the same result, see Gardels v. 

Murphy, 377 F.Supp. 1389, 1398 (N.D. 111. 1974); Johnson v. Allredge, 
349 F.Supp. 1230, 1231 (N.D. Pa. 1972), modified, 488 F.2d 820 (3rd 
Cxr. 1973); Butler v. United States, 365 F.Supp. 1035, 1039-1040 
(D, Haw, 1973); U.S. ex rel. Harrison v. Pace, 380 F.Supp. 107,
110 (E.D. Pa. 1974).

-19



tiff a promotion because of his race. In Scheunemann v . United 

States, 358 F.Supp. 875 (N.D. 111. 1373), Judge McMilien sustained a 

Section 1331 damage count against officials alleged to have un­

constitutionally fired plaintiff without a hearing. And in Gaballah v. 

Johnson, No. 72 C 1973 (N.D. 111.), in an unreported order of October 

7, 1973, Judge Tone sustained a Section 1331 damage count against 

federal officials in an action by an Arab employee alleging racial 

discrimination and arbitrary harrassment. The Adams complaint cannot 

be distinguished from these cases.
Even though the court has jurisdiction, it is conceivable 

that the defendants may enjoy official immunity. However, that 

immunity is qualified, not absolute. The governing standard should 

be the one laid down by the Supreme Court in Wood v. Strickland,

____U.S. _____, 43 U.S.L.W. 4293 (1975), which imposed personal
liability on a school board official who violates students' due pro­

cess rights "if he knew or should have known that the action he took 

within his sphere of official responsibilities would violate the 
constitutional rights of the student affected, or if he took the action

with the malicious intention to cause a deprivation of constitutional
15/

rights or other injury to the student". 43 U.S.L.W. at 4298. See

15/
While Wood applied to actions under 42 U.S.C. Section 1983 against 

state officials acting under color of state law, there is no sensible 
reason to apply a different standard to federal officials acting 
under color of federal law. And while the Wood holding is limited 
to school discipline, there is no reason to give more protection to 
other kinds of officials who make racially discriminatory employment 
decisions. Indeed, school board officials, faced with the need to 
maintain flexibility in dealing with school discipline problems, 
arguably ought to have more protection from personal liability than 
ordinary officials who are making routine employment decisions.

- 20-



also Bivens v. Six Unknown Narcotics Agents, 456 F .2d 1339, 1347-

1348 (2nd Cir. 1972). Whatever the precise scope of defendants' 

qualified immunity, however, the deliberate bad-faith deprivation of 

Adams' Fifth Amendment protection against racial discrimination 

alleged in the complaint cannot fall within the protected zone. It 

was therefore error to dismiss the complaint.

D. 42 U.S.C. Section 1981 Forbids Racial Dis­
crimination in Employment by Federal Officials.

By asserting that "none of the other provisions relied on by 

plaintiff can serve as (an) independent basis of jurisdiction", the 
district court in effect held that the Civil Rights Act of 1870, 42 U.S.C. 

Section 1981, and its jurisdictional companion, 28 U.S.C. Section 1343(4), 

do not apply to federal officials. That implied holding contradicted the 

law of this Circuit. In Baker v. F & F Investment, 489 F.2d 829, 833 

(7th Cir. 1973), this Court held that Section 1981 does apply to the 

federal government. It is settled that Section 1981 bars racial discrim­

ination in private employment (see, Waters v. Wisconsin Steel, 427 F.2d 

476 (7th Cir. 1970), cert, denied, 400 U.S. 911 (1970)) and under 
the rationale of Baker the section applies to federal employers 

like any other employer. Two Circuits have recently so held.

Bowers v. Campbell, 505 F.2d 1155, 1157-1158 (9th Cir. 1974); Penn v . 

Schlesinger, 490 F.2d 700, 702-703 (5th Cir. 1973), overruled on 

other grounds, 497 F.2d 970 (5th Cir. 1974). The district court 

therefore had jurisdiction under Section 1981 and 28 U.S.C. Section 

1343(4) to award relief to Adams, whether against the agency or the

- 21-



16/
individual defendants personally.

E . Both the Federal Mandamus Act and the Ad­
ministrative Procedure Act Give the Court 
Jurisdiction to Compel Defendants to Obey 
a Binding Administrative Adjudication.

The Civil Service Commission's "Equal Opportunity Regula­

tions which, governed the processing of Adams' administrative com­

plaint, provide that "the head of the (employing) agency, or his 

designee, shall make the decision of the agency on a complaint 

based on information in the complaint file". 5 CFR Section 713.221(a). 

Not once, but twice, the designee of the Secretary of Transportation 

rendered a decision under this section in Adams' favor. Both times 

the defendant officials of FHWA refused to obey the decision.

Count II of Adams' complaint therefore sought an order compelling 

these officials to comply with due process by implementing the 

decisions. This count predicated jurisdiction, among other sections, 

on the Federal Mandamus Act and the Administrative Procedure Act.

The district court's dismissal in effect held that these statutes 

gave it no jurisdiction to issue such an order. This holding was a 
mistake.

17/
1. Mandamus Jurisdiction. 28 U.S.C. Section 1361 has

W  ~
The issues of sovereign and official immunity under Section 1981 

must be resolved against defendants for precisely the same reasons 
that were discussed in Section B and C, supra, in connection with 28 
U.S.C. Section 1331 and the Fifth Amendment.
17/ 28 U.S.C. Sectxon 1361 reads: "The District Courts shall have 
original jurisdiction of any action in the nature of mandamus to 
compel an officer of the United States or any agency thereof to per­
form a duty to the plaintiff".

- 2 2 -



now been recognized by at least seven Circuits as providing an

independent basis of jurisdiction over actions to compel federal
18/officials to perform a duty they legally owe to the plaintiff.

The Civil Service Commission's Equal Opportunity Regulations, like 

all valid executive regulations, are binding on executive agencies

and their officers. United States v. Nixon, ____ U.S. ,94 S.Ct.

3090, 3101 (1974). The defendant officials had an absolute duty to 

implement any final agency decision under those regulations. It is 

difficult to think of a more fitting case for mandamus. To hold 

that district courts cannot compel federal officials to comply with 

bindging administrative adjudications renders the administrative ad­
judicatory process a fraud and a sham.

2• Administrative Procedure Act Jurisdiction. Even if
there were no jurisdiction under any other section, Section 10

Oi. the Administrative Procedure Act would give the district court

jurisdiction to compel defendants to obey due process by complying
19/

with the "final agency decisions" in Adams' case. The Supreme Court

w  ------------------
Peoples v. U.S. Dept, of Agriculture, 427 F.2d 561, 565 (D.C.

Cxr. 1970); Hahn v. Gottlieb, 430 F.2d 1243, 1245 n. 1. (1st Cir 
1970); Feliciano v. Laird, 426 F .2d 424, 427 (2nd Cir. 1970); 
Chaudoin v. Atkinson, 494 F.2d 1323, 1329 (3rd Cir. 1974); Penn v. 
Schlesinger, 490 F.2d 700, 704-705 (5th Cir. 1973), overruled on 
other grounds, 497 F.2d 970 (5th Cir. 1974); Schatten v. United ' 
States, 419 F.2d 187, 192 (6th Cir. 1969); Howard v. Hodgson, 490
F.2d 1194, 1195 (8th Cir. 1974). The Seventh Circuit has apparently 
not ruled on this question.
19/

Section 10(c) of the Administrative Procedure Act, 5 U.S.C. 
Section 704, provides, in part: "Agency action made reviewable by 
statute ̂ and final agency action for which there is no other adeguate 
remedy in a court are subject to judicial review."

-23-



has frequently affirmed lower court rulings where the APA was the20/
primary jurisdictional basis. See Rusk v. Cort, 369 U.S. 367,

372 (1962); Abbott Laboratories v. Gardner, 387 U.S. 136, 141 (1967); 

Gardner v. Toilet Goods Ass'n., 387 U.S. 167, 168 (1967); Citizens 

to Preserve Overton Park v. Volpe, 401 U.S. 402, 410 (1971); Train 

v. City of New York, ____ U.S. ___43 U.S.L.W. 4209 (1975).

The district court therefore had jurisdiction under 

the APA even if no other statute gave it jurisdiction. The relief 

sought by Adams is specifically authorized by Section 10(e) of the 

APA, 5 U.S.C. Section 706(1), which empowers the district court "to 

compel agency action unlawfully withheld". The district court 

could have therefore ordered FHWA to obey the administrative adjudica­

tions in Adams' favor.

F . Recapitulation.

For the following reasons, the district court should not 

have dismissed Adams' complaint:

(a) The Court had jurisdiction of Count I, which alleged 

racial discrimination in employment, under Title VII, under 28 U.S.C. 

Section 1331, and under 42 U.S.C. Section 1981 and 28 U.S.C. Section 
1343(4).

20/
The Circuits, however, are split on whether the APA standing alone 

can serve as an independent basis of jurisdiction. Cf. Sikora v. 
Brenner, 379 F.2d 134 (D.C. Cir. 1967) and Kelley v. Metropolitan 
County Board of Educa., 372 F.Supp. 528, 539 (N.D. Tenn. 1973), 
with Backowski v. Brennan, 502 F.2d 79 (3rd Cir. 1974) and Arizona 
State Dept, of Public Welfare v. HEW, 449 F.2d 456 (9th Cir. 1971). 
The Seventh Circuit has apparently not ruled on this issue. Recently 
the Eighth Circuit noted that the Supreme Court continues to consider 
the merits of APA - based suits in case after case, and indicated an 
inclination to back away from the contrary position. State Highway 
Commission v. Volpe, 479 F.2d 1099, 1105 (8th Cir. 1973).

-24-



(b) The Court had jurisdiction of Count II, which 

alleged violation of due process through defendants' failure to 

obey a binding administrative adjudication in Adams' favor, under 

28 U.S.C. Section 1331, the Federal Mandamus Act, and the Adminis­

trative Procedure Act.

(c) The doctrine of sovereign immunity does not bar the 

district court from ordering the government to pay Adams the salary 

and other benefits that were withheld from him because of defendants' 
unconstitutional acts.

(d) The doctrine of official immunity does not shield 

federal officials from personal liability when they have deliberately 

violated Adams' Fifth Amendment right to be treated without racial 
discrimination.

One final comment is appropriate. The jurisdictional issues 

on this appeal are technical and legalistic, but the overriding issue 

is not. The undisputed facts of this case are a disgrace to the 

federal government. Adams was forced to work for two years at a 

GS-12 salary in a job called "GS-13" side by side with a white GS-13 

employee. For nearly five years he has sought redress. He has 

been deliberately kept in the dark while two administrative decisions 

in his favor were shredded by secret machinations of the defendants. 

If the district court has no jurisdiction to hear Adams' case, then 
justice for federal employees means very little.

-25-



IV. CONCLUSION

The j udgment 

the case remanded for

of the district court should be reversed and 

trial on Adams' entire complaint.

Respectfully submitted,

fti______ W
CHARLES BARNHILL, JR.

DAVIS, MINER & BARNHILL 
14 West Erie Street 
Chicago, Illinois 60610 
Telephone: (312) 751-1170

Dated: March 19, 1975

-26-



IN THE UNITED STATES DISTRICT•COURT 
FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION

No. 74 C 1464 
*

R

This cause comes before the Court or. the motion of the defendants’ to 

dismiss. Plaintiff alleges that jurisdiction of this action is conferred on 

this Court by 42 U.S.C. §2000e-5(f)(3); 42 U.S.C. §1981; 28 U.S.C. §1231;

• 28 U.S.C. §1361; 28 U.S.C. §2201; and 5 U.S.C. §704. The Court has reviewed 

: the extensive memoranda filed by counsel for both sides. Plaintiff has also 

presented a motion for summary judgment.
■ The alleged act of discrimination occurred in "late 1970" and plaintiff
j
i first filed a formal administrative complaint of discrimination relative toii
the alleged act on September 20, 1971.

V.

Those portions of the Equal Employment Opportunity Act of 1972 (42 U.S.C.

§2000e-l6 et seq.), making the provisions of the Civil Rights Act of 1964

. (42 U.S.C. §2000e et. seq.) relating to discrimination in employment because of 
•*
i race applicable to the Federal government did. not become effective until

’ March 24, 1972. The weight of authority holds that these statutory amendments *
' the 1972 Act are prospective, and not retroactive. Brown v. General Services

KENNETH.Q. ADAMS, )
Plaintiff, ' )

)
-vs- )

)
CLAUDE S. BRINEGAR, etc., et al. , )

)
Defendants. )

0 R D E



2
f ' —  9 *' * * -

Administration, et al., No. 73-2628, decided November 21, 1974 (2nd Cir.); 

Cleveland Board of Education, et al. v. LaFleur, et al., 414 U.S. 632, 639 

n.81: Hill-Vincent v. Richardson, 359 F.Supp. 308, 309 (N.D. 111., April 16, 

1973); Place v. Weinberger, 497 F.2d 412, 414 (6th Cir. 1974); Palmer v. Rogers, 

6 E.P.D. §8822 (D.D.C. Sept. 7, 1973); Mosley v. United States, Civil 72-380-S 

(S.D. Calif. January, 1973); and Freeman v. Defense Construction Supply Center, 

C-72-24 (S.D. Ohio, 1972). Thus, the Court has no jurisdiction of plaintiff's 

complaint by reason of the Civil Rights Act of 1964, as amended, or the Equal 

Employment Opportunity Act of 1972.
' None of the other sections cited by plaintiff can act as independent 

basis of jurisdiction. Accordingly, defendant^ motion to dismiss is hereby 

granted.

J U D G E
DATED; January 28, 1975. . U

\
i$ -28-