federal employee, unlike his private counterpart, had to surmount a practically insurmountable defense of sovereign immunity before securing a hearing in Court; the private employee did not face that obstacle. In mandating a right to enter federal court at a given point in time, the discrepancy in treatment was alleviated. However, once in Court, dissimilar treatment again appears. Thus the private sector is generally granted a trial de novo,11 but the Congress has determined that in the usual case a federal employee should redress his grievances in a two-step process, first within the employee's own agency, with CSC review, and thereafter by federal court review of such agency and/or CSC action.
Of course Congress was not blind to the possible, but unlikely situation that might develop if an agency or the CSC was so intransigent as to take no action on an employee's complaint. In that instance, after six months time, Congress dictated that the employee may proceed directly to district court. Lacking an administrative record, a trial in such an instance would of course be mandated. But the unmistakable indication of Congressional intent from the plain language of the 1972 Act and its legislative history, was that, should court action be required, the federal employee would arrive at the courthouse door with an administrative record to be reviewed. As noted supra, such a review is consistent with present practice in federal employment disputes. Only in the rare instance would there be a plenary hearing in district court.
The foregoing reasoning dictates that the Spencer complaint should be remanded to the DCA for a full agency evidentiary hearing contemplated by the Congressional scheme.
The administrative record in this case indicates that both parties at one time agreed to a full evidentiary hearing, albeit at different points in time. Thus in its letter of March 14, 1973, DCA offered Spencer a hearing should he desire it, (Record, Tab B-14), and in their letter of March 21, 1973, Spencer's counsel specifically requested a hearing, (Record Tab B-17). The Court is persuaded that the full hearing contemplated by Congress was thwarted by the "or-else" unmeetable demands of counsel that their requests be met by a deadline fixed by them. The interests of justice would seemingly be better served if the statutory scheme were to be followed.
Accordingly, Spencer's complaint will be remanded to DCA for a full hearing in conformity with 5 C.F.R. § 713.218.
Cf. Douglas v. Hampton, 338 F. Supp. 18 (D.D.C. 1972) (Smith, J.).
B. Griffin and Bradley
Griffin and Bradley must be dismissed as co-plaintiffs for their failure to exhaust the available administrative remedies afforded them by 5 C.F.R. §§ 713.211-713.222. Such failure similarly leaves no alternative for this Court other than to dismiss as well Griffin's and Bradley's independent claims under 42 U.S.C. § 1981;
Executive Order No. 11478;
and the Fifth Amendment.
W. E. B. DuBois Clubs of America v. Clark, 389 U.S. 309, 19 L. Ed. 2d 546, 88 S. Ct. 450 (1967). Cf. Penn v. United States, 350 F. Supp. 752, 756 (M.D. Ala. 1972), aff'd on other grounds sub nom., Penn v. Schlesinger, 490 F.2d 700, 705-707 (5th Cir. 1973); Beale v. Blount, 461 F.2d 1133 (5th Cir. 1972); Eisen v. Eastman, supra note 5.
The Court finds that BEAD is not a proper party in this action and accordingly must be dismissed as a co-plaintiff.
Plaintiffs assert that BEAD accrued an independent statutory right to sue under Title VII, pursuant to 5 C.F.R. § 713.215, when DCA dismissed or rejected its proffered claim of racial discrimination toward BEAD's members. This contention is far wide of the mark, for § 713.215 clearly envisions only specific individual claims of discrimination within the Congressionally-mandated regulatory framework of 5 C.F.R. §§ 713.211 to 713.222. Plaintiffs moreover ignore the fact that third-party, organizational complaints, such as BEAD's, are provided for in 5 C.F.R. § 713.251. Cf. Hackley v. Johnson, supra, 360 F. Supp. at 1254 n. 11. It is clear that when DCA dismissed or rejected BEAD's complaint, BEAD's remedy was not to seek relief in this Court, but rather to appeal that decision within 30 days to the Civil Service Commission, as provided in 5 C.F.R. § 713.251(c). Accordingly, BEAD's amended complaint must be dismissed.
Accordingly, it is this 23rd day of April, 1974,
Ordered that Plaintiff's motion for class action certification be, and the same is hereby, denied; and it is
Further Ordered that the amended complaints of plaintiffs Gary Griffin, Frederick Bradley and DCA BEAD be, and the same are hereby, dismissed; and it is
Further Ordered that the Order of this Court in the above-captioned action, filed October 26, 1973, be, and the same is hereby, vacated; and it is
Further Ordered that defendants' motion to remand plaintiff William Spencer's individual complaint to the Defense Communications Agency for an administrative hearing be, and the same is hereby, granted.
Pursuant to Fed. R. Civ. P. 25(d) (1), it is by the Court, sua sponte, this 23rd day of April, 1974,
Ordered that James R. Schlesinger, Secretary of Defense, be, and he is hereby, substituted in the place and stead of Elliot L. Richardson, former Secretary of Defense, as a party defendant in this action.