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HACKLEY v. JOHNSON

July 13, 1973

Ralph M. Hackley, Plaintiff
v.
Donald E. Johnson et al., Defendants. Henry F. Franklin, Plaintiff v. Melvin Laird et al., Defendants


Gesell, D.J.


The opinion of the court was delivered by: GESELL

GESELL, D.J.:

Plaintiffs in these cases are Federal Government employees. Each of them claims discrimination on the basis of race and the employment opportunities afforded them by the Government. Dissatisfied with the outcome of administrative hearings, they seek a new trial in this Court, invoking the Equal Employment Opportunity Act of 1972, § 11, 42 U.S.C. § 2000e -- 16, and other civil rights acts, as well as the Constitution.

 The central question common to both of these cases is whether or not the Equal Employment Opportunity Act of 1972, amending Title VII of the Civil Rights Act of 1964, requires a United States District Court to hold a trial de novo where a plaintiff employed by the Federal Government, after unsuccessfully pursuing his administrative remedies, seeks relief from the Court to vindicate an individual claim of racial discrimination. As far as can be ascertained, this is an issue of first impression. The defendants have brought the issue into sharp focus by filing motions for summary judgment, accompanied by the administrative records, and asserting that the administrative actions taken in each case are amply supported by substantial evidence. *fn1"

 The charges of discrimination were first brought to the attention of the agencies in question in December, 1970, and February, 1971, respectively. Full separate hearings were held in each instance and an appeal was taken to the United States Civil Service Commission (hereafter referred to as "Commission"). In Hackley, the claim of discrimination was rejected, while in Franklin, the claim was accepted, but the plaintiff was denied certain corrective action which he considered appropriate. As will later appear, each of these administrative proceedings was extensive. The requests now made for a wholly new trial will perforce duplicate much of the administrative record. It is obvious that the ultimate determination of the issue will have a far-reaching effect on litigation involving alleged Title VII discrimination in federal employment and that plaintiffs' position, if accepted, would impose an especially heavy burden on the federal trial courts in this jurisdiction. *fn2"

 After providing essentially that all personnel actions affecting employment in the Federal Government are to be free from any discrimination based on race, color, religion, sex, or national origin, and providing the Commission with a wide range of remedial tools to insure that this explicit mandate will be carried out (42 U.S.C. § 2000e -- 16(a) and (b)), the statute goes on to provide:

 The grant of jurisdiction to the Federal Courts leaves open how that jurisdiction should be exercised. Traditionally the courts have been somewhat loath to interfere with federal employment standards. Gradually the courts have moved from a flat denial of jurisdiction to a review limited to statutory compliance and procedural due process, to requiring proof of an affirmative exercise of discretion, to a search for substantial evidence supporting the action, and, recently, to the rational-basis test. See Polcover v. Secretary of the Treasury, 477 F.2d 1223, 155 U.S. App. D.C. 338 (1973). These have been the progressive standards in discharge and other federal employment cases but resolution of the controversy has always been on the administrative record.

 Obviously a trial de novo would involve a very different approach. It would obviate the necessity of a review under any standard and would guarantee an independent cause of action in all cases where discrimination based on race, color, religion, sex, or national origin is claimed in federal discharge or promotion eligibility situations.

 A search of the legislative history *fn3" and consideration of the Act's language reveals no clear-cut congressional determination to require trial de novo as a matter of right nor does the Act itself specify the standard of review short of this which Congress may have contemplated would be applied.

 While the congressional reports and debates are not extensive with respect to the narrow question at hand and leave the matter unresolved, two themes are dominant throughout. Congress attempted to deal with what it viewed as unsatisfactory achievement by the Federal Government's employment of minorities on a non-discriminatory basis. First, Congress was concerned with the ineffectiveness of the existing Civil Service Commission and agency complaint process. Procedures were complicated and vague. The process was long and often overwhelming to an individual employee contesting his agency. Employees found it difficult to receive a truly independent investigation. In the end, the agency judged its own culpability, often without guidance of explicit standards. Besides these structural defects, the administrative process including the Civil Service Commission aspects, was thought to be insensitive and inexpert in the field of discrimination. Too often cases went off on whether there was a specific evil intent without examining the subtle and seemingly neutral practices which in effect imposed discriminatory barriers. It was an uphill fight for any civil servant, not very rewarding in result and stultifying in effect. The confidence of minorities in fair play by the agencies and the Commission appeared low.

 There was much and often confusing debate as to how these difficulties should be remedied. On the issue of federal employees, as on most other issues, the final version of the Act that passed the Congress was a compromise. For federal employees, proposals putting enforcement in the hands of the Equal Employment Opportunity Commission were dropped in favor of continued jurisdiction by the Civil Service Commission, with a right to file "a civil action" in the Federal Courts. Accepting its assertion of good faith, Congress was willing to continue to rely on the Civil Service Commission and gave it added authority. At the same time, Congress enhanced the rights of federal employees in fundamental ways. First, the Commission's enforcement machinery was to be strengthened to make it fair and effective so that investigations and resolutions of complaints would be complete and impartial. Congress directed the Commission to expand its expertise on discrimination and imposed various implementing requirements. Systemic discrimination was to be attacked by re-examination of the entire testing and qualification program. A broad range of remedies could be invoked and agencies were to develop affirmative plans of action and continually report their progress to the Commission. *fn5" The Commission has lived up to these obligations by putting into effect comprehensive new regulations to meet the concerns of Congress. Clear-cut complaint procedures protect individuals as well as groups and broad classes of complainants, and new obligations are imposed on the agencies. 5 C.F.R. Part 713 (1973).

 The second congressional thrust was the provision of the Act in question here, which guaranteed federal employees a right of access to Federal Courts. 42 U.S.C. 2000e -- 16(c). On its face, the statute is silent as to the court's duty. To be sure, some legislative history refers to federal employees having the "full rights available in the courts as are granted to individuals in the private sector under Title VII." *fn6" Phrases such as this must be put in their proper context. Congress clearly left primary responsibility for enforcement of these rights within the Civil Service Commission. A fair reading of the statute shows that the courts and the Commission are to work together and complement one another's weaknesses and strengths. Neither can ignore the role the other plays. Viewing the Act and its history broadly, Congress intended to guarantee access to the courts -- "a civil action" -- to eliminate previous barriers but not to start the process anew.

 That the Courts would exercise this supervisory role is best supported by the remarks and analysis of Senator Williams, Chairman of the Senate Committee on Labor and Public Welfare, the committee with jurisdiction over the Act, and a principal sponsor who helped manage the bill on the Senate floor. According to Senator Williams, "an aggrieved Federal employee [is able] to file an action in U.S. District Court for a review of the administrative proceeding record after a final order by his agency or by the Civil Service ...


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