Since Avrech‘s conviction is based on a single First Amendment instruction which grossly misstated the law, I submit it should be vacated. Now that Avrech has been proved right, rather than disloyal, it is the least that should be done.

ant‘s conduct.” At 103. The majority derives this standard from

Carlson v. Schlesinger, 167 U.S.App.D.C. 325, 511 F.2d 1327, 1332-1333 (1975). But Carlson was not a court-martial case. It concerned the proper standard for reviewing the decision of a base commander denying permission, under applicable regulations, to servicemen who wanted to circulate petitions on a base in a combat zone.

I think it is a mistake to extend the Carlson standard beyond the facts there involved, and certainly a mistake to apply it to court-martial convictions, which may carry sanctions far more severe than inability to circulate a petition. Such a standard, it seems to me, makes it inevitable that we uphold nearly all disloyal statement convictions, no matter how mild the offending statement may be. At the very least, such a departure should not take place without a more careful consideration of both Kauffman and Councilman.

David J. Saylor, Washington, D. C., for appellant.

Edward D. Ross, Jr., Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., and John A. Terry and Ellen Lee Park, Asst. U. S. Attys., were on the brief, for appellees. Harold H. Titus, Jr., U. S. Atty. at the time the record was filed, also entered an appearance for appellees.

Charles Stephen Ralston, New York City, with whom James M. Nabrit, III, New York City, and David Cashdan, Washington, D. C., were on the brief, for NAACP Legal Defense and Educational Fund, Inc. as amicus curiae.

Before WRIGHT and LEVENTHAL, Circuit Judges, and DAVIS,* Judge.

Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.

J. SKELLY WRIGHT, Circuit Judge:

Plaintiff-appellant Ralph Hackley, a black employee of the Federal Government, brought suit in the District Court alleging racial discrimination in the employment practices of the Veterans Administration‘s Investigation and Security Service Division.¹ Having exhausted his administrative remedies without satisfaction, appellant contended that the Equal Employment Opportunity Act of 1972, Section 11, 42 U.S.C. § 2000e-16 (Supp. III 1973), which

amended Title VII of the Civil Rights Act of 1964 to encompass federal employees and to accord them the right to file a “civil action” after final agency action, entitled him to a trial de novo on his discrimination claims in the District Court.² In response, appellees sought summary judgment on the basis of their assertion that, as a legal matter, the role of the District Judge in such civil actions was limited to review of the administrative record to ensure the existence of a rational basis for the agency‘s decision³ and that, as a factual matter, the administrative record clearly indicated that there was a rational basis for the agency‘s finding that there was an absence of discrimination against appellant.⁴ Judge Gesell granted appellees’ summary judgment motion⁵ since his analysis of the language and legislative history of the 1972 amendments to Title VII, and his perception of the policies implicated by the question of de novo proceedings, convinced him that Title VII did not accord an aggrieved federal employee the right to a trial de novo; however, he held that the administrative record must be scrutinized under the more demanding preponderance of the evidence standard of review.⁶ Although we believe there may be some merit to the concerns

which motivated Judge Gesell‘s holding, we are of the opinion 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 employees, and that the Federal Rules of Civil Procedure are flexible enough to enable trial judges to prevent such de novo trials from unduly burdening the courts or substantially duplicating agency proceedings.⁷ Accordingly, we reverse the grant of the motion for summary judgment and remand the case to the District Court for further proceedings consistent with this opinion.⁸

I

On June 29, 1967 appellant Hackley transferred from a GS-7 position with the District of Columbia Department of Public Welfare to a GS-7 position as a General Investigator in the Investigation and Security Service Division (I&S) of the Veterans Administration (VA). Before appellant was hired at the insistence of Mr. Holland, I&S’ then recently appointed black Director, I&S had never had a black investigator.

During Mr. Holland‘s tenure as Director of I&S, appellant progressed from GS-7 to GS-12, reaching the latter rating in November 1969.⁹ Shortly thereafter, Mr. Holland was succeeded by Mr. Maiers, a white Director. In February 1971 appellant complained that Mr. Maiers and his assistant, Mr. Rettew, had denied him a promotion to the level of GS-13 solely because of racial discrimination. An informal investigation of the allegation was conducted by an Equal Employment Opportunity counselor, who interviewed five of appellant‘s past and present supervisors; the counselor recommended that appellant be promoted because, inter alia, there were no written job standards at I&S, thus leaving the question of promotions “to the personal likes and dislikes of the supervisors,”¹⁰ who ostensibly considered appellant lacking in experience and deficient in the areas of field investigation and report writing necessary for such a promotion.¹¹

When the EEO counselor informed appellant that VA management had rejected this recommendation, he lodged a formal complaint of racial discrimination with the VA on March 22, 1971, asserting that Messrs. Rettew, Maiers, and Turner (Assistant Administrator of the VA for Management and Evaluation) were responsible for the allegedly discriminatory acts. A formal investigation of this complaint was conducted during April 1971 by Mrs. Kinnebrew, a VA employee. In her final written report, she concluded that appellant‘s work assignments and a lack of communication with management had “placed him in a cycle of discriminatory circumstances.”¹² She perceived a “vast difference” in the assignments given appellant (predominantly assistance to white investigators on cases concerning blacks, with accountability to numerous supervisors) and those given Mr. Sandleman, a white GS-12 in-

vestigator hired after appellant (predominantly assigned his own cases concerning whites, with accountability to a single supervisor).¹³ Although she recommended that actions be taken to avoid such a cycle of discriminatory circumstances in the future, and that job standards be reduced to writing and the length of the training program spelled out,¹⁴ these remedial actions were not taken by appellant‘s superiors and his dispute remained unresolved.

After being informed by Mr. Turner that no promotion would be forthcoming and that he had the option of requesting a decision by the VA‘s General Counsel either without or after a hearing on his complaint, appellant demanded a hearing. A Civil Service Commission (CSC) employee, Mr. Knazik, was designated the complaints examiner for the purpose of holding the formal hearing. Although no prehearing depositions were taken or other discovery allowed, appellant was represented by counsel at the hearing and was permitted to present and cross-examine available¹⁵ witnesses. The hearing spanned seven days and was comprised of testimony from 19 persons, including appellant; upon its completion, Mr. Knazik filed a report to the VA stating various findings and concluding that there was no evidence to support a claim of racial discrimination in the failure to promote appellant.¹⁶

In a letter to appellant, the Assistant General Counsel of the VA adopted Mr. Knazik‘s findings and recommended decision as the final VA position and notified appellant of his right to appeal the decision to the CSC‘s Board of Appeals and Review (BAR). Appellant filed such an appeal and the BAR requested the VA to supplement the hearing record by providing additional data concerning the races of certain I&S personnel as well as their promotion records. This information, supplied to the BAR in an unsworn memorandum by

Mr. Turner, one of the officials accused by appellant of racial discrimination, was not subject to rebuttal by appellant, although it was discussed in the BAR‘s decision reviewing his complaint. On May 22, 1972 the BAR affirmed the VA decision and advised appellant that there were no further administrative remedies available. Appellant subsequently instituted the current suit against the Administrator of the VA, Messrs. Maiers, Rettew, and Turner, and the three members of the CSC, all in their official capacities.¹⁷

II

Title VII of the Civil Rights Act of 1964, Pub.L. No. 88-352, 78 Stat. 253 et seq. (codified at 42 U.S.C. § 2000e et seq.), which generally prohibits¹⁸ employment discrimination¹⁹ based on an individual‘s race, color, religion, sex, or national origin, originally was inapplicable to federal employees. Although Congress did declare it to be “the policy of the United States to insure equal employment opportunities for [federal] employees without discrimination because of race, color, religion, sex, or national origin,”²⁰ and although several Executive Orders reiterated that policy and charged the CSC with its enforcement,²¹ specific implementing legislation was not enacted until the Equal Employment Opportunity Act of 1972, Pub.L. No. 92-261, 86 Stat. 103 et seq., extended the protections of Title VII so as to embrace federal employees.²² Notwithstanding the constitutional right to be free from such discrimination,²³ federal employees attempting to enforce that right before 1972 had been faced with virtually insuperable obstacles to judicial rulings on the merits of their claims.²⁴ This anomalous situation was dramatically altered by the promulgation, as Section 11 of the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16 (Supp. III

1973), of Section 717 of the Civil Rights Act of 1964.

Subsection 717(a) of Title VII, 42 U.S.C. § 2000e-16(a), specifies that “[a]ll personnel actions affecting employees or applicants for employment * * * in executive agencies [of the United States] * * * shall be made free from any discrimination based on race, color, religion, sex, or national origin,” while subsection 717(b) of Title VII, 42 U.S.C. § 2000e-16(b), authorizes the CSC to enforce subsection (a) through dispensation of appropriate remedies and issuance of necessary rules and regulations.²⁵ The crux of the instant case involves the meaning of subsections 717(c), (d) of Title VII, 42 U.S.C. §§ 2000e-16(c), (d), which explicitly provide that a federal employee aggrieved by the administrative disposition of his complaint or the failure of administrative action within certain time limits may file a “civil action” in the District Court:

(c) Civil action by employee or applicant for employment for redress of grievances; time for bringing of action; head of department, agency, or unit as defendant. 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 appeal from a decision or order of such department, agency, or unit on a complaint of discrimination based on race, color, religion, sex or national origin, brought pursuant to subsection (a) of this section, Executive Order 11478²⁶ 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 2000e-5²⁷ of this title, in which civil action the head of the department, agency, or unit, as appropriate, shall be the defendant. (d) Section 2000e-5(f) through (k) of this title applicable to civil actions. The provisions of section 2000e-5(f) through (k) of this title, as applicable, shall govern civil actions brought hereunder. (Emphasis added.)

We must determine the proper contours of the “civil action” which federal employees may institute under these provisions. In particular, we must reassess Judge Gesell‘s conclusion that subsections 717(c) and (d) do not accord those federal employees who have received an administrative hearing on their complaint²⁸ the right to a trial de novo in federal court on their allegations of employment discrimination. Judge Gesell had determined that:

The grant of jurisdiction to the Federal Courts [by subsection 717(c)] leaves open how that jurisdiction should be exercised. * * * The Federal Courts are free to act in whatever manner may be appropri-

ate, case by case, consistent with experience and precedent. Precious rights of individuals are involved and these must not be obfusticated [sic] by procrustean adherence to standards of review that are more semantic than substantial. There is a need to establish an especially high standard of review in government employment cases involving aspects of discrimination prohibited by the Civil Rights Act of 1972, but an interpretation that embraces an automatic requirement of trial de novo in all instances with all its inherent uncertainties and substantial delays will defeat rather than advance the Act‘s objectives.

The trial de novo is not required in all cases. The District Court is required by the Act to examine the administrative record with utmost care. If it determines that an absence of discrimination is affirmatively established by the clear weight of the evidence in the record, no new trial is required. If this exacting standard is not met, the Court shall, in its discretion, as appropriate, remand, take testimony to supplement the administrative record, or grant the plaintiff relief on the administrative record.²⁹

This hybrid approach—limiting the District Judge to a review of the administrative record but requiring him to reassess the evidence to decide where the preponderance lies—may appear to strike a nice compromise between the opposing parties’ contentions in this case, and between those courts which have found a right to a trial de novo and those which have merely reviewed the administrative record under a substantial evidence standard, but we find no basis for this holding in the language or legislative history of the 1972 amendments. Rather, we believe that Congress did intend to provide federal employees the right to a trial de novo, and that the preponderance test is to be applied as a normal concomitant of any civil action which involves such a trial de novo.³⁰

A.

To be sure, Section 717 of Title VII does not explicitly declare that the “civil action” instituted by an aggrieved federal employee³¹ is to be a trial de novo. However, even without the support of the legislative history of the 1972 amendments³² it would appear on closer scrutiny that the structure of Title VII indicates that such a de novo proceeding was intended by Congress.

Subsection 717(c) of Title VII permits an aggrieved federal employee to “file a civil action as provided in section 2000e-5 of this title [42 of the U.S. Code, Section 706 of Title VII],” and subsection 717(d) specifies that the “provisions of section 2000e-5(f) through (k) of this title [42 of the U.S. Code, subsections 706(f)-(k) of Title VII], as applicable, shall govern civil actions brought hereunder.” (Emphasis added.) Section 706 contains the enforcement provisions of Title VII, and subsections 706(f)-(k) specify the parameters of the “civil actions” which may be brought to remedy private sector discrimination. Subsection 706(f) provides, inter alia,³³ for jurisdiction and specific venue requirements in the United States District Courts,³⁴ for an expedited “hearing” of the case,³⁵ for discretionary appointment of a master if the judge “has not scheduled the case for trial within one hundred and twenty days after issue has been joined,”³⁶ and for court appointment of counsel and waiver of fees and court costs in appropriate circumstances.³⁷ Subsection 706(g) grants the courts broad remedial powers, while subsection 706(j) renders the civil action appealable under 28 U.S.C. §§ 1291, 1292 (1970). Finally, subsection 706(k) specifies that the court may award the prevailing party a reasonable attorney‘s fee as part of the costs of the action, and subjects the United States to the same liability as private litigants.³⁸

The provisions of Section 706 have been interpreted by the Supreme Court

to grant an aggrieved private sector litigant the right to a trial de novo on his or her employment discrimination claim, see

Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974) (private sector employee‘s right to trial de novo under Title VII is not foreclosed by prior submission of claim to final arbitration under nondiscrimination clause of collective bargaining agreement)³⁹;

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798-799, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (EEOC finding of “no reasonable cause” to believe Title VII was violated does not bar trial de novo of private sector employee‘s Title VII claims), and before the 1972 amendments, the essentially identical⁴⁰ provisions governing private sector suits were held to be de novo proceedings which were not interdicted by an EEOC finding of “no reasonable cause.”⁴¹ See, e. g.,

Robinson v. Lorillard Corp., 444 F.2d 791, 800 (4th Cir. 1971);

Beverly v. Lone Star Lead Construction Corp., 437 F.2d 1136 (5th Cir. 1971);

Flowers v. Local No. 6, Laborers International Union of North America, 431 F.2d 205 (7th Cir. 1970);

Fekete v. U. S. Steel Corp., 424 F.2d 331 (3d Cir. 1970). See also

Alexander v. Gardner-Denver Co., supra, 415 U.S. at 45-46 n. 5. Thus, since subsection 717(d) merely provides that the statutory subsections relating to private sector civil actions shall also govern the federal employee civil actions, it would appear that the latter should also be conducted as de novo proceedings.

Nevertheless, appellees and the District Court rely on the fact that subsection 717(d) only directs that federal employee civil actions be governed by private sector employee provisions “as applicable” to support their position that Congress did not intend to accord federal employees the same right to a de novo trial possessed by private sector employees.⁴² More particularly, appellees note that subsection 717(c) allows an aggrieved federal employee to file a civil action when the final agency or CSC determination is adverse or when the agency or CSC has delayed adjudicating the claim for over 180 days; they insist that Section 706 procedures that are appropriate when the claimant enters federal court without an administrative record because of agency inaction should not be “applicable” once such a record has been compiled.⁴³

However, a closer look at the language and structure of subsection 717(d) and Section 706 would tend to discredit any notion that the “as applicable” language was intended by Congress to constitute a vehicle according the District Judge discretion to, in Judge Gesell‘s terms, “act in whatever manner may be appropriate”⁴⁴ in the judge‘s view of the case and to choose from among the provisions of Section 706. Rather, it seems most logical that the “as applicable” language expresses a congressional recognition that the referenced subsections of Section 706 also pertain to “civil actions” instituted by the EEOC and the Attorney General,⁴⁵

and that language in subsections 706(f) through (k) relating to such suits, as opposed to suits brought personally by private sector litigants, is clearly not “applicable” to federal employee civil actions.

Surely Congress, in stating that the provisions of subsections 706(f)-(k) “shall govern” federal employee civil actions, did not intend to allow District Judges to escape that requirement by determining that various provisions are not “applicable” to such litigation. And surely Congress, had it considered the disparity in the posture of cases coming to District Court after agency inaction and final agency action to be so substantial as to merit the considerably different treatments of trial de novo and mere review of the administrative record, would have specified that distinction with particularity rather than rely on the amorphous “as applicable” device.⁴⁶ This is particularly plausible when it is observed that of the four points in the administrative process at which a federal employee may bring a “civil action,” only one would entail the absence of an administrative record.⁴⁷ If almost all federal employee suits would be review proceedings rather than de novo proceedings, we believe Congress would have affirmatively indicated that in some manner, rather than having the unrestricted provisions of Section 706, which unequivocally accord private sector litigants the right to a trial de novo and which “shall govern” federal employee civil actions, obliquely limited through the “as applicable” language of Section 717(d). Moreover, if

as do private sector employees. However, before filing a complaint with the EEOC such employees must first commence any available proceedings under state anti-discrimination laws. See 42 U.S.C. § 2000e-5(c) (Supp. III 1973). In making its determination as to whether there is reasonable cause to believe the discrimination charge is true, the EEOC is to “accord substantial weight to final findings and orders made by State or local authorities” in those proceedings. 42 U.S.C. § 2000e-5(b) (Supp. III 1973). If the EEOC nevertheless determines reasonable cause exists but is unable to secure an acceptable conciliation agreement, the EEOC is to refer the case to the Attorney General, “who may bring a civil action against such [governmental] respondent in the appropriate United States district court.” 42 U.S.C. § 2000e-5(f)(1) (Supp. III 1973). Since these civil actions are explicitly covered by the various provisions of § 2000e-5(f)-(k) (subsections 706(f)-(k) of Title VII), these civil actions are clearly trials de novo. See also 171 U.S.App.D.C. pp. ___-___, 520 F.2d pp. 129-130 & notes 82, 85 infra. Yet the state or local government employee may have been accorded a full evidentiary hearing, replete with all procedural rights including the opportunity to conduct discovery and compel attendance of witnesses, in the processing of his complaint at the state or local level. Indeed, since all private sector employees must first exhaust available state remedies, see 42 U.S.C. § 2000e-5(c) (Supp. III 1973); cf.

Love v. Pullman Co., 404 U.S. 522 (1972), and yet have an uncontested right to a trial de novo under subsections 706(f) through (k), this argument applies with equal force to all non-federal employees. Thus, since the presence vel non of such an administrative hearing is of no consequence with respect to the right of private sector and state and local government employees to have a trial de novo in the federal courts, there is no reason to assume that Congress intended the existence of an administrative record (particularly when compiled without substantial procedural safeguards, see 171 U.S.App.D.C. pp. ___-___, 520 F.2d pp. 136-142 & notes 117-137 infra) to bar the federal employee‘s right to such a trial de novo; at a minimum, it cautions against trying to read such a significant distinction into the words “as applicable,” particularly when those words can be explained much more logically, as we do in text, as a recognition of the variety of suits authorized under § 706, and the language in that Section referring to the EEOC and the Attorney General.

Congress had intended that a federal employee “civil action” commenced after compilation of an administrative record would be a review of the agency action rather than a trial de novo, it is most probable that it would have clarified the standard under which such review would proceed.⁴⁸ And if review of the administrative record was intended, we doubt that Congress would have placed jurisdiction in the District Courts rather than in the Courts of Appeals.⁴⁹

Finally, the incongruity of the District Court‘s approach in interpreting the “as applicable” language of Section 717 so as to allow it to choose which of the provisions of Section 706 apply not only to private sector employee “civil actions,” but also to federal employee “civil actions,” may be seen from the distortion it would require in the language of Section 706. It would, in effect, result in holding that sentences should be parsed so that they would be partially “applicable” and partially not “applicable.” For example, subsection 706(f)(5) directs the District Judge assigned to a Title VII case “to assign the case for hearing at the earliest practicable date and to cause the case to be in every way expedited.” (Emphasis added.) We doubt that anyone would contend that private sector employee “civil actions” are to be expedited under this congressional command but that federal employee “civil actions” are not to be so expedited.⁵⁰ Yet this command is part and parcel of a sentence requiring a “hearing” of the action, which would not occur if the District Judge could merely decide the case on the administrative record. Similarly, subsection 706(f)(5) provides that “[i]f [the district] 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 pursuant to rule 53 of the Federal Rules of Civil Procedure.” (Emphasis added.) Yet the District Court in this case suggested that the master provision of the Act would apply to federal employee actions at the same time that it held that there is no requirement of a trial in such cases; indeed, it used the possibility of appointment of a master as an affirmative reason for holding that there is no requirement of a trial de novo.⁵¹

In short, we believe that the language of Section 717 fits better with the de novo trial interpretation. Subsection 717(c) authorizes federal employees to file “civil actions” in the same manner as Section 706 authorizes private sector employees to file “civil actions,” and subsection 717(d) directs federal courts to apply the same procedures in federal and private sector “civil actions.” It is well established that the latter are trials de novo, and the congressional directive of equal procedures thus requires the former to also be trials de novo. We can only view the purportedly qualifying phrase of subsection 717(d)—“as applicable“—as nothing more than a recognition that the referenced provisions of Section 706 cover EEOC and Attorney General “civil actions” as well as individual private sector employee “civil actions,” and that the latter are the relevant provisions to analyze in determining what procedures govern federal employee ac-

tions.⁵² In any event, to the extent the “as applicable” language creates ambiguity as to congressional intent, we believe the legislative history of and the policies underlying Section 717 dictate resolution of any possible statutory ambiguity in favor of the trial de novo.⁵³

B.

The legislative history of the 1972 amendments to Title VII, although somewhat sketchy and at times internally inconsistent on the issue sub judice, basically reinforces the proposition that Congress intended to accord aggrieved federal employees the right to a trial de novo on their discrimination claims in District Court. Since the 1972 amendments underwent substantial transformation during the congressional proceedings, we will first describe the salient changes and relevant debate chronologically, and then proceed to a fuller development of our views concerning the import of this history in ascertaining congressional intent.⁵⁴

1.

On June 2, 1971 the House Committee on Education and Labor reported out H.R. 1746, 92d Cong., 1st Sess. (1971),⁵⁵ known as the “Hawkins Bill” after its chief sponsor, Representative Hawkins. The basic purpose of the Hawkins Bill was the conferral of judicially enforceable cease and desist authority on the Equal Employment Opportunity Commission (EEOC),⁵⁶ which had no enforcement powers whatever under the original Title VII of the Civil Rights Act of 1964.⁵⁷ Detailed provisions of the bill

specified the procedures under which the EEOC could issue cease and desist orders, which were subject to a limited “substantial evidence on the record considered as a whole” review in the United States Courts of Appeals.⁵⁸ Nevertheless, the right of private sector employees to file a “civil action” in certain circumscribed situations was explicitly re-tained under Section 8(j) of the bill;⁵⁹ such actions, as noted above, had been held to be trials de novo under the unamended Civil Rights Act of 1964. Moreover, in extending Title VII coverage to federal employees, Section 11 of the Hawkins Bill invested the EEOC with enforcement responsibility and provided that an aggrieved federal em-

existence of administrative sanctions will encourage settlements), with, e. g., Legislative History at 118-123 (Minority views on Hawkins Bill in House Report at 58-62), 219 (remarks of Reps. Erlenborn and Railsback), 221 (remarks of Rep. Railsback), 493-496 (individual views of Sen. Dominick in Senate Report at 85-88), 692-697 (remarks of Sen. Dominick), 837-839 (remarks of Sens. Talmadge and Chiles), 1013 (remarks of Sen. Gambrell), 1446-1447 (remarks of Sen. Hruska), 1485 (remarks of Sen. Dominick) (arguing, inter alia, that judicial trials are preferable because relief may be more expeditiously and effectively granted by District Courts, which are not in fact overburdened; a court is a more appropriate forum in which to resolve civil rights questions, in Title VII cases as well as those involving public accommodations, school desegregation, fair housing, and voting rights, since it provides procedural safeguards, federal judges enjoy tremendous respect, the forum is convenient for the litigants and the judge is impartial, the proceedings are public, and the judge can fashion a complete remedy; the Federal Rules of Civil Procedure, with respect to discovery, greatly facilitate collection of evidence for trial; hearing examiners tend to be inadequate factfinders; administrative tribunals are less impartial, legal arguments are not always effectively brought forth, and procedural rules are virtually nonexistent; administrative tribunals are too sensitive to political winds rather than stare decisis, while courts possess not only greater independence, but also greater expertise; and judicial precedents encourage out-of-court settlements). Ultimately, the proponents of judicial enforcement rather than cease and desist powers in the EEOC prevailed in both Houses of Congress. See 171 U.S.App.D.C. pp. ___-___, 520 F.2d pp. 125-126, 128 infra.

ployee could file a “civil action” within 30 days after receipt of notice of final agency action on his discrimination complaint. The provisions of Section 8(j) of the Hawkins Bill, which specified the procedures governing the “civil action” of an aggrieved private sector employee, and not the provisions of Section 4, which governed the substantial evidence review of EEOC cease and desist orders, were to govern the federal employee‘s “civil action.”⁶⁰

The House Report on the Hawkins Bill noted the “paramount”⁶¹ importance of eradicating employment discrimination by the federal government; it emphatically declared 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 sector.”⁶² After sketching the Government‘s abysmal record in minority employment,⁶³ the Report laid much of the blame at the doorstep of the Civil Service Commission, which had been charged with enforcing federal employees’ constitutional rights to be free from discrimination, as embodied in Executive Orders 11246 and 11478.⁶⁴ The Report attacked the CSC‘s newly revised complaint process, a “critical defect of the Federal equal employment program,” for having “impeded rather than advanced” the goal of equal employment opportunity;⁶⁵ the whole structure of the system was found to create an inherent conflict of interest, and employee confidence in the effectiveness of the procedures was found to be generally lacking.⁶⁶ To overcome these structural

defects so that the entrenched discrimination in federal employment could be effectively combatted, the House Report recommended the transfer of enforcement power to the EEOC, which was considered an impartial tribunal.⁶⁷ Despite this proposed improvement in the complaint process, aggrieved employees were to be authorized to “file a civil action in the same manner as in Section 715,” the section of the bill retaining the private civil action of private sector employees, after final agency action on the discrimination charge.⁶⁸

On the floor of the House, considerable opposition was expressed to the cease and desist powers embodied in the Hawkins Bill, and by a narrow vote on September 16, 1971 the Erlenborn Bill, H.R. 9247, 92d Cong., 1st Sess. (1971), was adopted as a complete substitute for H.R. 1746.⁶⁹ Denying the EEOC any

examiner are in the nature of recommendations to the agency head who makes the final agency determination as to whether discrimination exists. Although the complaint procedure provides for an appeal to the Board of Appeals and Review of the Civil Service Commission, the record shows that the Board rarely reverses the agency decision. The system, which permits the Civil Service Commission to sit in judgment over its own practices and procedures which themselves may raise questions of systematic discrimination, creates a built-in conflict-of-interest. Testimony reflected a general lack of confidence in the effectiveness of the complaint procedure on the part of Federal employees. Complainants were skeptical of the Civil Service Commission‘s record in obtaining just resolutions of complaints and adequate remedies. This has discouraged persons from filing complaints with the Commission for fear that it will only result in antagonizing their supervisors and impairing any hope of future advancement. Aside from the inherent structural defects the Civil Service Commission has been plagued by a general lack of expertise in recognizing and isolating the various forms of discrimination which exist in the system. The revised directives to Federal agencies which the Civil Service Commission has issued are inadequate to meet the challenge of eliminating systemic discrimination. * * * House Report at 24, Legislative History at 84 (emphasis added). For a discussion of the CSC employment discrimination complaint procedures, the modifications they have undergone, and their relevance to our decision on the issue of de novo federal employee proceedings, see 171 U.S.App.D.C. pp. ___-___, 520 F.2d pp. 136-142 & notes 117, 123-137 infra.

cease and desist powers, the Erlenborn Bill instead granted the EEOC the right to file a civil action in the District Courts, which would be charged with Title VII‘s enforcement responsibilities. Although the private sector employee‘s right to file a civil action in the absence of EEOC success in obtaining voluntary compliance or the failure of the EEOC to file a civil action was preserved, the Erlenborn Bill did not extend the protections of Title VII to federal employees.

Meanwhile, on September 14, 1971 Senator Williams had introduced S. 2515, 92d Cong., 1st Sess. (1971), which substantially paralleled the Hawkins Bill, granting the EEOC cease and desist powers, bringing federal employees within the ambit of Title VII with enforcement powers in the EEOC, and according aggrieved federal employees recourse to the District Courts.⁷⁰

The amended version of S. 2515 which eventually emerged from the Senate Committee on Labor and Public Welfare (the “Committee Bill“) retained cease and desist authority over private sector discrimination in the EEOC, with substantial evidence review in the Courts of Appeals.⁷¹ The Committee hammered out a compromise, however, on the provisions relating to federal employment: enforcement responsibility with respect to federal employees was returned to the Civil Service Commission, although an aggrieved employee was granted the option of filing a “civil action” after either final action by the agency or by the CSC on appeal, or after inaction by either the agency or the CSC for 180 days from the filing of the original charge or the taking of an appeal.⁷² This compromise es-

tablished the structure of Section 717 which the Congress ultimately enacted, and even the language of the Committee Bill remained essentially unchanged throughout the remainder of the Act‘s consideration. The Committee Bill also specified that under certain circumstances private sector employees could still bring civil actions in the District Court,⁷³ and these civil actions would presumably be trials de novo.⁷⁴ Like the Hawkins Bill in the House, the Committee Bill specified that these provisions governing private sector employee civil actions, and not the section of the Committee Bill governing review proceedings of final EEOC action, would govern federal employee civil actions.⁷⁵

After repeating the concerns expressed in the House Report with respect to the high priority of rooting out all discrimination in federal employment, and reiterating the failure of the federal government to even begin to adequately redress its serious shortcomings in this area,⁷⁶ the Senate Report on the Committee Bill zeroed in on the CSC‘s complaint procedures. Like the House Report, the Senate Report recited the litany of inadequacies in the CSC complaint process and bemoaned the lack of employee confidence in that process.⁷⁷

Nevertheless, although echoing the House recognition that the system created a built-in conflict of interest, the Senate Report related the CSC‘s sincere desire to overcome that apparent conflict and the Committee‘s belief that the CSC possessed “the will and desire to overcome any such conflict of interest.”⁷⁸

The provisions adopted by the committee will enable the Commission to grant full relief to aggrieved employees, or applicants, including back pay and immediate advancement as appropriate. 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 VII.⁷⁹

As did the House Report, the Senate Report unequivocally asserted that the provisions governing private sector suits brought by individual litigants, and not the provisions for substantial evidence review of EEOC cease and desist orders, would govern the federal employee‘s “civil action” in the District Court:

The provisions of section 706(q) through (w) concerning private civil actions by aggrieved persons are made applicable to aggrieved Federal employees or applicants. They could file a civil action within 30 days of notice of final action on a complaint made pursuant to section 717(b), or after 180 days from the filing of an initial charge, or an appeal with the Commission. The authority given to the Commission or the limitations placed upon the Commission under sections 706(q) through (w) would apply to the Civil Service Commission or the agencies, as appropriate, in connection with a civil action brought under section 717(c). So, for example, if the Civil Service Commission or agency does not issue an order within 180 days after a complaint or appeal is filed, the aggrieved person may also institute a civil action. If such action is instituted within one year of the filing of the complaint or appeal, the Civil Service Commission or agency may request that the action be stayed or dismissed upon a showing that it has been acting with due diligence, that it anticipates issuance of an order within a reasonable time on the complaint or appeal, that the case or proceeding is exceptional and that extension of exclusive jurisdiction of the Civil Service Commission or agency is warranted.⁸⁰

Like the Hawkins Bill in the House, the Committee Bill encountered stiff opposition on the floor of the Senate to its grant of cease and desist powers to the EEOC. Although a proposed amendment by Senator Dominick to delete those provisions in favor of EEOC authority to institute civil actions against private sector employers which the EEOC believed were violating the statute was twice defeated by a two-vote margin, a threatened filibuster eventually resulted in a compromise effecting Senator Dominick‘s desired change.

During the course of the Senate debate on the cease and desist issue, Senator Dominick, who was one of the Committee on Labor and Public Welfare members who formulated the compromise⁸¹ which provided for continued CSC supervision of Title VII aspects of federal employment, with the concomitant right of an aggrieved employee to file a civil action in certain enumerated circumstances, made several references to the sections of the Committee Bill pertaining to federal employment discrimination. These references reflected his understanding that the federal employee “civil action” would be a trial de novo, since he continually contrasted the District Court proceedings which could be instituted by federal and state and local government⁸² employees with the “substantial evidence” Court of Appeals review of final EEOC orders; to establish equality of treatment he wanted all private sector actions to similarly entail plenary proceedings in the District Courts:

[In the committee process] we were able to work out an agreement whereby a Federal employee who feels he is discriminated against can go through his agency, and if he is still dissatisfied, he is empowered to bring suit in Federal court or through the existing Civil Service Board of Appeals and Reviews to Federal court. So on two of the major groups of employees covered by this legislation; namely, State and local employees on the one hand, and Federal employees on the other, the committee itself agreed to grievance remedy procedures through the Federal district courts; yet with the private employee they say, “No, you cannot have that. We will have an agency that can do it all by itself.” That is discrimination in and of itself, right within the bill; and it strikes me that one of the first things we have to do is at least to put employees holding their jobs, be 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 they are not being discriminated against and have the enforcement, investigatory procedure carried out the same way.⁸³

[W]e have already provided in the existing bill for State and local employees and Federal employees to seek redress of their grievances to Federal District Courts. We are not doing so for private employees or private employers. It seems to me that that is discrimination in and of itself.⁸⁴

This [Dominick] amendment does not change a committee-adopted amendment authored by Senator Cranston and me creating machinery suggested by Clarence Mitchell, director, Washington Bureau, NAACP. The machinery provides a remedy procedure for the approximately 2.6 million civil service and postal employees whereby an aggrieved employee has the option, after exhausting his agency remedies, of either instituting a civil suit in Federal district court or continuing through the Civil Service Board of Appeals and Reviews to district court, if necessary. Curiously enough, the majority members of the committee seem pleased with ultimate court enforcement procedures for 2.6 million Federal employees and 10.1 State and local government employees, but continue to urge cease-and-desist procedures for private employees.⁸⁵

After the Dominick amendment was agreed to, thereby deleting the EEOC‘s cease and desist powers and all of the Committee Bill‘s references to review proceedings, and instead according the EEOC the power to file a civil action in District Court, the Senate turned its attention to other proposed amendments to S. 2515. One such amendment, introduced by Senator Cranston, brought Library of Congress employees within the ambit of the federal employment discrimination provisions of Section 717.⁸⁶

In the course of introducing and discussing that proposed amendment, Senators Cranston and Williams made several statements concerning Section 717 generally. Initially, Senator Cranston adumbrated the rationale and purposes behind the new section and expanded Title VII coverage:

[S]ection 11 of the bill inserts of [sic] new section 717 in Title VII of the Civil Rights Act of 1964 to provide, for the first time, a clear statutory mandate with respect to equal employment opportunity in the Federal Government. * * *

This bipartisan provision has three basic purposes:

First. Subsection (a) of the new section 717 provides a statutory mandate that all personnel actions affecting employees or applicants for employment in the Federal Government, “Shall be made free from any discrimination based on race, color, religion, sex or national origin.”

Second. Subsection (b) in the new section 717 empowers the Civil Service Commission to enforce the mandate in subsection (a) and to be responsible for review of evaluation of Federal agency equal employment opportunity plans and programs. The subsection also requires that certain provisions be included in each agency‘s plans.

Third. Subsection (c) of the new section 717 creates a remedy in district court—comparable to private employment actions—for any employee who has exhausted the equal employment opportunity complaint procedure within his Federal agency.⁸⁷

Senator Williams then addressed the poor record of the federal government in its attempts to make equal employment opportunity a reality,⁸⁸ and concluded that significant changes in the CSC complaint process were therefore necessary.⁸⁹

Senator Williams also referred to the substantial testimony which various hearings had generated concerning the inadequacy of the CSC complaint process and federal employee resignation to the reality that “it will be a rare instance where an agency admits to its own shortcomings.” Id. More particularly, Senator Williams quoted testimony of Mr. Fauntroy, the Delegate in Congress from the District of Columbia:

It seems anomalous to have the [Civil Service] Commission both establish policies for rooting out discrimination and at the same time have the basic responsibility for measuring the effectiveness of its personnel policies against the demands of the law. S. 2515 will remedy this inequity and provide for objective review of Federal discrimination policies.

After describing the obligations of the CSC under the proposed Section 717, Senator Williams made the statement relied on by Judge Gesell as support for the proposition that Congress intended the “civil action” of Section 717 to be a mere review of the agency record:

Finally, written expressly into the law is a provision enabling an aggrieved Federal employee 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 Commission, if he is dissatisfied with that decision. Previously, there have been unrealistically high barriers which prevented or discouraged a Federal employe[e] from taking a case to court. This will no longer be the case. There is no reason why a Federal employee should not have the same private right of action enjoyed by individuals in the private sector; and I believe that the committee acted wisely in this regard.⁹⁰

Senator Williams also received unanimous consent to insert a “more detailed analysis” of Section 717 into the Congressional Record.⁹¹ After relating the historical background of the problem and the failings of the CSC‘s complaint procedures,⁹² the analysis noted the “private right of action” added by Section 717:

An important adjunct to the strengthened Civil Service Commission responsibilities is the statutory provision of a private right of action of review of the agency proceedings in the courts by Federal employees who are not satisfied with the Agency or Commission decision.

The testimony of the Civil Service Commission notwithstanding, the Committee found that an aggrieved Federal employee does not have access to the courts. In many cases, the employee must overcome a U.S. Government defense of sovereign immunity or failure to exhaust administrative remedies with no certainty as to the steps required to exhaust such remedies. Moreover, the remedial authority of the Commission and the courts has also been in doubt. The provisions adopted by the Committee will enable the Commission to grant full relief to aggrieved employees, or applicants, including back pay and immediate advancement as appropriate. Aggrieved employees or applicants will also have the full rights of review available in the courts.⁹³

Following brief debate on some other issues relating to EEOC activities, Senator Cranston again took the floor to discuss Section 717:

My Federal Government EEO amendment included in the committee bill would:

* * * * *

Fifth. For the first time, permit Federal employees to sue the Federal Government in discrimination cases—under the theory of Federal sovereign immunity, courts have not generally allowed such suits—and to bring suit either prior to or after CSC review of the agency EEO decision in the case. As with other cases brought under Title VII of the Civil Rights Act of 1964, Federal district court review would be based on the agency and/or CSC record and would not be a trial de novo. Mr. President, the Federal Government must be a model of equal employment opportunity.⁹⁴

However, several months after enactment of the 1972 amendments, Senator Cranston asserted that the “not” had been misplaced in the printed version of his remarks, and that he had actually stated on the Senate Floor that “Federal district court review would not be based on the agency and/or CSC record and would be a trial de novo.”⁹⁵

Immediately prior to the Senate‘s passage of its version of the Act, Senator Williams intromitted another section-by-section analysis into the Congressional Record. He observed:

Sections 717(c) and (d)—The provisions of sections 706(f) through (k) as applicable, concerning private civil actions by aggrieved persons, are made applicable to aggrieved Federal employees or applicants. * * * The authority given to the Commission or the limitations placed upon the Commission under sections 706(f) through (k) would apply to the Civil Service Commission or the agencies, as appropriate, in connection with a civil action brought under section 707 [sic] (c).⁹⁶

When the House and Senate versions of H.R. 1746 were sent to conference, the conferees agreed to adopt the Senate version with respect to bringing federal employees under Title VII‘s umbrella:

The Senate amendment. provided that all personnel actions involving Federal employees be free from discrimination. This policy was to be enforced by the United States Civil Service Commission. Each agency of the Federal Government would be responsible for establishing an internal grievance procedure and progams to train personnel so as to enable them to advance under the supervision of the Civil Service Commission. If final action had been taken by an agency or the Civil Service Commission, an aggrieved party could bring a civil action under the provisions of section 706. * * * In providing the statutory basis for such appeal or court access, it is not the intent of the Committee to

Senator Cranston also added his voice to the chorus condemning the federal government‘s record in failing to provide equal opportunity to minority groups and women. See Legislative History at 1745-1748. More specifically, he chastised the CSC for itself exemplifying “this shocking pattern of exclusion;” of the CSC‘s top 53 jobs, only two were held by blacks, one of whom was a civil rights officer. Id. at 1745. See also id. at 1752-1753 (remarks of Sen. Cranston); id. at 425 (Senate Report at 16) (need for CSC revision of its personnel policies). In the course of introducing and discussing that proposed amendment, Senators Cranston and Williams made several statements concerning Section 717 generally. Initially, Senator Cranston adumbrated the rationale and purposes behind the new section and expanded Title VII coverage:

[S]ection 11 of the bill inserts of [sic] new section 717 in Title VII of the Civil Rights Act of 1964 to provide, for the first time, a clear statutory mandate with respect to equal employment opportunity in the Federal Government. * * *

This bipartisan provision has three basic purposes:

First. Subsection (a) of the new section 717 provides a statutory mandate that all personnel actions affecting employees or applicants for employment in the Federal Government, “Shall be made free from any discrimination based on race, color, religion, sex or national origin.”

Second. Subsection (b) in the new section 717 empowers the Civil Service Commission to enforce the mandate in subsection (a) and to be responsible for review of evaluation of Federal agency equal employment opportunity plans and programs. The subsection also requires that certain provisions be included in each agency‘s plans.

Third. Subsection (c) of the new section 717 creates a remedy in district court—comparable to private employment actions—for any employee who has exhausted the equal employment opportunity complaint procedure within his Federal agency.⁸⁷

Senator Williams then addressed the poor record of the federal government in its attempts to make equal employment opportunity a reality,⁸⁸ and concluded that significant changes in the CSC complaint process were therefore necessary.⁸⁹

Senator Williams also referred to the substantial testimony which various hearings had generated concerning the inadequacy of the CSC complaint process and federal employee resignation to the reality that “it will be a rare instance where an agency admits to its own shortcomings.” Id. More particularly, Senator Williams quoted testimony of Mr. Fauntroy, the Delegate in Congress from the District of Columbia:

It seems anomalous to have the [Civil Service] Commission both establish policies for rooting out discrimination and at the same time have the basic responsibility for measuring the effectiveness of its personnel policies against the demands of the law. S. 2515 will remedy this inequity and provide for objective review of Federal discrimination policies.

After describing the obligations of the CSC under the proposed Section 717, Senator Williams made the statement relied on by Judge Gesell as support for the proposition that Congress intended the “civil action” of Section 717 to be a mere review of the agency record:

Finally, written expressly into the law is a provision enabling an aggrieved Federal employee 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 Commission, if he is dissatisfied with that decision. Previ-ously, there have been unrealistically high barriers which prevented or discouraged a Federal employe[e] from taking a case to court. This will no longer be the case. There is no reason why a Federal employee should not have the same private right of action enjoyed by individuals in the private sector; and I believe that the commit-tee acted wisely in this regard.⁹⁰

Senator Williams also received unanimous consent to insert a “more detailed analysis” of Section 717 into the Congressional Record.⁹¹ After relating the historical background of the problem and the failings of the CSC‘s complaint procedures,⁹² the analysis noted the “private right of action” added by Section 717:

An important adjunct to the strengthened Civil Service Commission responsibilities is the statutory provision of a private right of action of review of the agency proceedings in the courts by Federal employees who are not satisfied with the Agency or Commission decision.

The testimony of the Civil Service Commission notwithstanding, the Committee found that an aggrieved Federal employee does not have access to the courts. In many cases, the employee must overcome a U.S. Government defense of sovereign immunity or failure to exhaust administrative remedies with no certainty as to the steps required to exhaust such remedies. Moreover, the remedial authority of the Commission and the courts has also been in doubt. The provisions adopted by the Committee will enable the Commission to grant full relief to aggrieved employees, or applicants, including back pay and immediate advancement as appropriate. Aggrieved employees or applicants will also have the full rights of review available in the courts.⁹³

Following brief debate on some other issues relating to EEOC activities, Senator Cranston again took the floor to discuss Section 717:

My Federal Government EEO amendment included in the committee bill would:

* * * * *

Fifth. For the first time, permit Federal employees to sue the Federal Government in discrimination cases—under the theory of Federal sovereign immunity, courts have not generally allowed such suits—and to bring suit either prior to or after CSC review of the agency EEO decision in the case. As with other cases brought under Title VII of the Civil Rights Act of 1964, Federal district court review would be based on the agency and/or CSC record and would not be a trial de novo. Mr. President, the Federal Government must be a model of equal employment opportunity.⁹⁴

However, several months after enactment of the 1972 amendments, Senator Cranston asserted that the “not” had been misplaced in the printed version of his remarks, and that he had actually stated on the Senate Floor that “Federal district court review would not be based on the agency and/or CSC record and would be a trial de novo.”⁹⁵

Immediately prior to the Senate‘s passage of its version of the Act, Senator Williams intromitted another section-by-section analysis into the Congressional Record. He observed:

Sections 717(c) and (d)—The provisions of sections 706(f) through (k) as applicable, concerning private civil actions by aggrieved persons, are made applicable to aggrieved Federal employees or applicants. * * * The authority given to the Commission or the limitations placed upon the Commission under sections 706(f) through (k) would apply to the Civil Service Commission or the agencies, as appropriate, in connection with a civil action brought under section 707 [sic] (c).⁹⁶

When the House and Senate versions of H.R. 1746 were sent to conference, the conferees agreed to adopt the Senate version with respect to bringing federal employees under Title VII‘s umbrella:

The Senate amendment. provided that all personnel actions involving Federal employees be free from discrimination. This policy was to be enforced by the United States Civil Service Commission. Each agency of the Federal Government would be responsible for establishing an internal grievance procedure and progams to train personnel so as to enable them to advance under the supervision of the Civil Service Commission. If final action had been taken by an agency or the Civil Service Commission, an aggrieved party could bring a civil action under the provisions of section 706. * * * In providing the statutory basis for such appeal or court access, it is not the intent of the Committee to subordinate any discretionary authority or final judgment now reposed in agency heads by, or under, statute for national security reasons in the interests of the United States.⁹⁷

In submitting the Conference Report to the Senate, Senator Williams again introduced a section-by-section analysis for printing in the Congressional Record. The analysis was prefaced by the statement that

[i]n 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 VII.⁹⁸

As already noted, private sector employees had the right to a trial de novo under pre-1972 judicial interpretation of Section 706 of Title VII,⁹⁹ and the inclusion of language in amended Section 706 which refers to “hearings” and “trial”¹⁰⁰ merely reinforces that interpretation. For the final time, Senator Williams’ analysis stressed the equality of treatment which should be accorded private sector and federal employee civil actions:

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 employees or applicants for employment. * * *¹⁰¹

2.

Although many courts have followed the District Court opinion in this case in holding that the 1972 amendments do not accord aggrieved federal employees the right to a trial de novo, they have generally done so on the basis of that court‘s “comprehensive” analysis of the amendments and their legislative history.¹⁰² Yet the District Court‘s scant two-page analysis¹⁰³ dealt only with a few parts of the legislative history, and relied almost exclusively on two statements of Senator Williams. In searching the legislative history, the District Court isolated two dominant themes which it believed embodied the congressional intent in 1972.

First, the District Court asserted that Congress was cognizant of the ineffectiveness of the then current CSC and agency complaint processes, but was satisfied that they could be remedied by strengthening the CSC‘s enforcement machinery in various ways.¹⁰⁴ The District Court, without comparing the criticized procedures and the ones now in effect; simply averred that

[t]he 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).¹⁰⁵

Second, the District Court perceived that Congress was disaffected because of the lack of effective judicial control over the agency complaint processes; the doctrines of sovereign immunity and failure to exhaust administrative remedies had barricaded agency action from “meaningful court review.”¹⁰⁶ Viewing Section 717 of Title VII as the congressional response to this problem, the District Court concluded:

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.¹⁰⁷

Our impression of the legislative history convinces us that the District Court‘s opinion of the amended Civil Service Commission procedures is unduly optimistic, and that its conception of the purpose of Section 717 is unduly narrow. More generally, we believe the District Court, in its “fair reading” of the statute and “broad” view of the legislative history, actually manifested an unfortunately constricted attitude toward the congressional intent in passage of the sweeping 1972 reform legislation.

We take as our starting point the basic purpose of Section 717: the rooting out of every vestige of employment discrimination within the federal government. Both the House and Senate Reports and a chorus of congressmen decried the federal government‘s poor record in achieving real equality of employment opportunity.¹⁰⁸ This was the critical defect which necessitated congressional action, and remedying this injustice was the “paramount” purpose which motivated inclusion of Section 717 in Title VII.¹⁰⁹ 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, that sought to establish a regime of equality for the private sector of the economy while leaving its own house in disarray, rife with discrimination.

Nor was the actuality of equal opportunity alone sufficient. The federal government plays a vital role in all aspects of our society; it is a model for all and exercises a significant educative force by its example. As the Senate Report opined, because the “policies, actions, and programs [of the federal government] strongly influence the activities of all other enterprises, organizations and groups, [i]n no area is government action more important than in the area of civil rights.”¹¹⁰ Thus, assuring the appearance of fair and equal treatment of federal employees and applicants for employment, as much as achieving the actuality of fair and equal treatment, was a primary congressional objective.¹¹¹ It is from this perspective that congressional action in 1972, and congressional intent in enacting Section 717 of Title VII, must be judged.

Turning our attention to the more specific congressional objectives addressed by Section 717, we first note that we concur in the District Court‘s observation that Congress intended to strengthen the CSC‘s remedial authority and the federal government‘s internal procedures for assuring equal employ- ment opportunity through the 1972 amendments. Such an intent is evident in the language of the statute itself,¹¹² and permeates much of the commentary in the Senate Report.¹¹³ However, we disagree with the District Court that this mandate to the CSC indicates a congressional belief that formal judicial fact-finding procedures are therefore unnecessary.

There is also serious question whether the District Court was on sound ground in concluding that the CSC‘s revised procedures effectively rectify the defects identified by Congress in 1972. As to this point, as indicated in their concurring opinions, Judges Leventhal and Davis are of the view that it is not necessary to address the recent course of the Civil Service Commission and consequently do not join in its discussion in this opinion. However, it seems to the writer worthy of note that both the House and Senate Reports found critical infirmities in the CSC‘s complaint procedures, even as revised in 1969. The informal procedures were found to have impeded rather than enhanced the quest for equal employment opportunity.¹¹⁴ The fact that the hearing examiner was to be appointed from outside the agency was not considered curative of the defect that the examiner was without actual authority to conduct an independent investigation, since his conclusions and findings were “in the nature of recommendations to the agency head who makes the final agency determination as to whether discrimination exists.”¹¹⁵ Moreover, the CSC‘s Board of Appeals and Review was found to rarely reverse an agency determination, and the whole federal complaint process was considered to create a “built-in conflict-of-interest.”¹¹⁶

It is evident from a comparison of 5 C.F.R. Part 713 as it existed before and after the 1972 amendments that no substantial reform was effectuated to meet these congressional concerns.¹¹⁷ To be sure, the regulations were expanded to include, inter alia, provisions governing third-party allegations,¹¹⁸ the aggrieved employee‘s right to file a civil action in District Court,¹¹⁹ allegations of reprisal or coercion,¹²⁰ and the necessity for various remedial actions where discrimination is found.¹²¹ However, no substantial changes were effectuated to meet many of the specific objections expressed in the House and Senate Reports. For example, although those Reports suggested that informal procedures may have impeded anti-discrimination efforts, the mandatory precomplaint processing procedures have not been altered.¹²² Despite congressional criticism that an agency‘s responsibility for investigating and judging complaints lodged against it produces, at a minimum, an appearance of unfairness, and that the system creates a built-in conflict of interest, the head of an agency may still reject a complaint under certain circumstances or cancel a complaint for “failure of the complainant to prosecute,”¹²³ and the provisions under which the defendant agency preliminarily investigates the charges are not modified in any relevant way.¹²⁴

Furthermore, the hearing procedures are only cosmetically altered, with the “hearing examiner” now denominated a “complaints examiner” but with the practical limitations on his independence and the fact that ultimate decision-making authority rests with the agency head persisting under the “revised” procedures.¹²⁵ The examiner need have no legal training,¹²⁶ and no rules of evidence govern the hearing;¹²⁷ hearsay is explicitly rendered admissible¹²⁸ and examiners are informed that the concept of “burden [of proof]” has no applicability to the hearing process.¹²⁹ Moreover, the issues are delineated by the complaints examiner, and he rather than the com- plainant molds the agency record.¹³⁰ And particularly important in evaluating the credibility of the agency proceedings as adequate factfinding mechanisms, the examiner has no subpoena power and thus neither the complainant nor the examiner has the right to conduct discovery or secure compulsory process.¹³¹ Indeed, the CSC has frankly recognized that

[t]he hearing is an adjunct to the investigation. It is not an adversarial proceeding but is an administrative proceeding designed to provide additional evidence.

Office of Federal Equal Employment Opportunity of the Civil Service Commission, Discrimination Complaints Examiners Handbook 5 (April 1973) (emphasis in original).¹³² Furthermore, the head of the employing agency still makes the final agency decision on the complaint,¹³³ and although the employee may appeal that decision to the CSC‘s Board of Appeals and Review,¹³⁴ there is no right to a hearing of any type before the BAR.¹³⁵

Thus, contrary to Judge Gesell‘s pronouncement that the CSC has lived up to its obligations under Section 717 and has implemented procedures that meet congressional concerns, the CSC‘s nonadversarial fact-finding procedures¹³⁶ and inherent structural defects persist essentially unchanged, and do not guarantee federal employees a full and fair hearing on their claims of employment discrimination; these persisting inadequacies at the least present an aura of unfairness and an appearance of conflict of interest which will continue to discourage federal employees from seeking to vindicate their rights before the CSC with any prospect of success.¹³⁷

Turning our attention to the more specific congressional objectives addressed by subsections 717(c) and (d), we cannot agree with Judge Gesell that the mere conferral upon federal employees of the right of “access” to the courts was intended. To be sure, Congress discounted CSC testimony that federal employees already had the right to prosecute discrimination claims in the District Courts; it found that the Government defenses of sovereign immunity and failure to exhaust administrative remedies often effectively precluded meaningful judicial consideration of those claims.¹³⁸ However, by ensuring federal employees that they would have the unequivocal right to a day in court, Congress did not thereby dictate that that day in court would only consist of a review of the administrative record in those cases in which such a record has been compiled. Indeed, by enacting subsection 717(c) Congress had assured federal employees of their day in court; but Congress also enacted subsection 717(d), specifying that the provisions of Title VII governing private sector employee actions would also govern federal employee civil actions. We believe that this broader congressional objective—the equalization of the rights and remedies in the courts of private sector and federal employees—is manifest in the legislative history of the 1972 amendments.

Both the Hawkins Bill in the House and the Committee Bill in the Senate sought to accord the EEOC cease and desist authority, and to limit judicial action on final EEOC orders in the private sector to substantial evidence review in the appropriate Courts of Appeals. However, both bills preserved the preexisting private sector employee “civil action” in the District Courts in certain enumerated situations; these actions, like those under the unamended Act, would of necessity be trials de novo. Despite the fact that each bill, with respect to private sector employees, contained provisions requiring substantial evidence review in the Courts of Appeals in some situations but trials de novo in the District Courts in other situations, the section of the bills pertaining to federal employee civil actions always referenced the private sector provisions requiring trial de novo as the provisions which would govern a federal employee‘s civil action.¹³⁹ The Senate Report, in its analysis of the provisions which, without relevant modification, became Section 717, provided that federal employees “could bring a civil action under the provisions of section 706,” the section of Title VII according the EEOC or aggrieved private sector litigants the right to bring a discrimination complaint to District Court for a trial de novo.

Furthermore, substantial support for our holding may be derived from what Congress did not do in the 1972 amendments and the issues which were not debated in either House. Before the Dominick amendment was adopted, the EEOC was to be granted cease and desist powers in the private sector, with substantial evidence review in the Courts of Appeals. The procedures under which an appellate court was to conduct its review were elaborated in considerable detail.¹⁴⁰

In particular, there was extended debate on whether the proper standard of review should be “substantial evidence” or “preponderance of the evidence.”¹⁴¹ The difference in the two standards was considered significant, and proponents of cease and desist authority warded off attempts, primarily sponsored by Senator Ervin, to increase the intrusiveness of judicial review through substitution of a preponderance test for the Committee Bill‘s substantial evidence test. Appellees would have us believe that Congress, despite the fact that similar debate was not initiated with respect to federal employees, intended implicitly to establish procedures in the District Court for review of final federal agency or CSC orders analogous to the detailed procedures which it had explicitly established in the Courts of Appeals for review of final EEOC orders. As already indicated, there is no support for this proposition in the structure of the Committee Bill before the Dominick amendment, since the procedures governing individual private sector actions in the District Courts, which were trials de novo, were referred to as governing federal employee “civil actions.”¹⁴² But even if we were to assume arguendo that Congress conceivably wanted those provisions regulating appellate review to govern federal employee civil actions in the District Court (and only in the situations in which an agency record had been compiled), it would be difficult indeed to assert that although Congress wanted to limit federal employee “civil actions” to review of the administrative record, it did not say anything about the “review” procedures, especially the standard of review, even when the Dominick amendment purged all references to review from the Committee Bill and Congress thereby accepted Senator Dominick‘s goal of equal court treatment for all employees. Given the significance that Congress attached to the standard of review, and the detail with which Congress specified procedures governing such “review” problems as inadequate administrative records and failure to present evidence before the agency,¹⁴³ we believe Congress would have addressed these issues if a “review” proceeding rather than a trial de novo in the District Court was intended.¹⁴⁴

Against the press of this legislative history and subsequent statements applauding the comparability of the federal employee and private sector “civil actions” authorized by the 1972 amendments,¹⁴⁵ the District Court (which did not allude to the legislative history discussed above) quoted only two statements by Senator Williams and cited another statement by Senator Cranston to indicate that Congress intended to limit the federal employee‘s “civil action” to a review of the administrative record when such a record has been compiled.¹⁴⁶ These statements, however, cannot shunt the primary thrust of the legislative history.

Admittedly, Senator Williams, in a discussion focusing on the proposed Section 717, proclaimed that a federal employee would henceforth be able to file an action “for a review of the administrative proceeding record,”¹⁴⁷ and in amplifying remarks contemporaneously inserted into the Congressional Record he asserted that the federal employee would have “a private right of action of review of the agency proceedings * * * the full rights of review available in the courts.”¹⁴⁸ However, with the same breath Senator Williams, in apparent contradiction since adoption of the Dominick amendment had accorded all private sector employees the right to a trial de novo in District Court, asserted that “[t]here is no reason why a Federal employee should not have the same private right of action enjoyed by individuals in the private sector.”¹⁴⁹ Moreover, on at least three other occasions Senator Williams noted the equality of treatment that was to be accorded private sector and federal government employees when they file suit in District Court.¹⁵⁰ Furthermore, Senator Williams’ statement could not accurately depict congressional intent in establishing a federal employee “civil action,” since some such actions—where suit is instituted after agency delay for 180 days—could under no circumstances constitute a simple review of the agency record, for no such record would be extant.¹⁵¹ Particularly when it is recalled that Senator Williams acknowledged that Senator Dominick was more qualified to speak authoritatively on the meaning of the federal employee provisions,¹⁵² and that the statement inserted into the Congressional Record appears to be no more than a personal interpretation (which altered the meaning) of the Senate Committee‘s more definitive interpretation of Section 717,¹⁵³ we do not believe that we should lend much weight to Senator Williams’ remarks quoted above. This is especially true in light of the clear direction of the remainder of the legislative history.

The cited statement of Senator Cranston¹⁵⁴ provides even less support for the District Court‘s determination that Congress only intended to accord federal employees the right of access to federal court and not the right to a trial de novo possessed by all other employees under Title VII. First, even if Senator Cranston‘s statement is taken at face value as originally printed in the daily edition of the Congressional Record, it incorrectly portrayed the law. Beginning “[a]s with other cases brought under Title VII of the Civil Rights Act of 1964,” the statement could not reasonably have been relied upon by other congressmen as indicating an intent that the District Court proceedings would “not be a trial de novo,” since all other Title VII cases, both before the 1972 amendments and under the 1972 Act as it then stood, were trials de novo and not mere review of EEOC action.¹⁵⁵ Moreover, Senator Cranston had previously stated that one of the purposes of subsection 717(c) was to “create[ ] a remedy in district court—comparable to private employment actions—for any [federal] employee who has exhausted the equal employment opportunity complaint procedure within his Federal agency.”¹⁵⁶ Finally, Senator Cranston went on record to correct the misquotation in the Congressional Record so that the bound volume would

reflect his actual remarks, which emphasized that “Federal district court review would not be based on the agency and/or CSC record and would be a trial de novo.”¹⁶⁵ Since this correction was made several months after passage of the 1972 amendments,¹⁶⁶ and although no one challenged Senator Cranston‘s correction or protested that his original vote was cast in reliance on the version which appeared in the daily edition,¹⁶⁷ we do not base our holding on this piece of legislative history; other evidence is sufficiently compelling to support our conclusion that Congress intended to create for federal employees a “civil action” with the same essential attributes as the “civil action” brought by private sector and state and local government employees. Nevertheless, the fact that the correction went unchallenged and the fact that, as originally reported, the statement was internally inconsistent, undercut any attempt to premise a holding limiting judicial action to review of the administrative record on Senator Cranston‘s comment.

Thus we cannot accept the view that Congress did not intend to accord federal employees the same right to a trial de novo that it had previously accorded private sector employees and that it reaffirmed through passage of the 1972 amendments to Title VII.

C.

We are also unable to isolate any substantial policy justifications for denying federal employees a trial de novo on their claims of discrimination under Section 717 of Title VII. As we have already indicated, we believe the pertinent language of Section 717 and its legislative history, although not absolutely devoid of inconsistencies, basically support the thesis that Congress intended in passing the 1972 amendments to accord federal employees the right to such de novo trials in the District Courts.

* * *

As noted above, to the extent various policy considerations inform our analysis of congressional intent, we believe this interpretation is also supported by those policy considerations which motivated the 1972 amendments to Title VII: Congress wanted every trace of employment discrimination within the federal government obliterated. Subsection 717(a) trumpeted the purpose of the amendments: “All personnel actions affecting [federal government] employees or applicants for employment . . . shall be made free from any discrimination based on race, color, religion, sex, or national origin,” and the right to plenary judicial proceedings was provided to insure that the trumpet did not sound a hollow note. Since the federal Government was the model for all other groups in society, Congress considered the goal of real equal employment opportunity to be of paramount importance and decided that federal employees were to be granted the same rights as private sector employees for achieving that equality. An essential prerequisite for achieving equality was the guarantee of fair and effective machinery for resolving discrimination disputes; indeed, Congress appreciated the fact that even if the CSC could provide that fairness, the appearance of conflict of interest and bias and the need to reassure federal employees that they possessed the same rights as private sector employees counseled strongly that there be de novo judicial proceedings rather than judicial deferral to agency or Civil Service Commission decisions.

Nevertheless, the District Court in this case urged a variety of other policy considerations as counseling a contrary result. But even if we were to ignore the fact that if Congress did not consider these factors sufficient for denying federal employees the right to a trial de novo, we could not rely on them to frustrate that congressional intent, we would still find them unpersuasive as compelling reasons for adopting the District Court‘s approach in this case. Especially when compared with the substantial interests served by a fair and complete judicial fact-finding process, replete with the tools of discovery and compulsory process, these interests pale into insignificance.

In holding that there is no automatic right to a trial de novo, the District Court was obviously concerned with several factors that could be generally characterized as judicial efficiency: the fact that a trial de novo would be “a wholly new trial [that] will perforce duplicate much of the administrative record,”¹⁶⁸ the prediction that the number of federal employee cases that might be filed in this district “would impose an especially heavy burden on the federal trial courts in this jurisdiction,”¹⁶⁹ and the impact of the comparative expertise of federal judges and the CSC in the ability to isolate instances of “real” discrimination:

it is difficult, as the present cases illustrate, to differentiate between pure discrimination claims and the underlying intricacies of civil service regulations governing job qualification selection for promotion, training and the like. The Commission‘s growing expertise in civil rights matters, coupled with its pre-eminent expertise in these latter areas, emphasize that an automatic trial de novo will not serve the laudable purpose of the Act.¹⁷⁰

Furthermore, the District Court noted the fact that

Congress wanted prompt and consistent decisions in these discrimination matters. A trial de novo does not accomplish this but rather works in the opposite direction for a wholly new record must be made and opportunity for reasonable discovery provided.¹⁷¹

The District Court summarized these arguments with the conclusion that “an interpretation that embraces an automatic requirement of trial de novo in all instances with all its inherent uncertainties and substantial delays will defeat rather than advance the Act‘s objectives.”¹⁷² We find little, if any, force behind these factors.

First, there is no reason why the de novo proceedings need duplicate the administrative record. As we elaborate in more detail below,¹⁷³ the administrative record should be admissible for whatever weight the trial judge wishes to accord it, and most de novo testimony would be in the nature of supplementation to that record.¹⁷⁴ As counsel for amicus NAACP Legal Defense and Educational Fund forcefully emphasized at oral argument, aggrieved federal employees do not desire unnecessary delay in questing after the right to a trial de novo; they merely want assurance that in these complex cases they will have the irrevocable right (rather than a right contingent upon the discretion of a particular judge) to compile a complete factual record and to conduct all necessary discovery.¹⁷⁵ For example, in the case sub judice, the testimony of Holland, the black former head of the I&S, and that of Haycraft, the former employee who related Maiers’ references to blacks as “burr heads,”¹⁷⁶ would have been relevant to the issue of whether discrimination in fact impeded appellant‘s opportunity for promotion; and documentation concerning the agency‘s past employment practices and promotion records might have illuminated the controversy as to whether a pattern or climate of discrimination existed at I&S. Appellant had no right to obtain this testimony or these records during the agency hearings, but the right to conduct this discovery would be a normal concomitant of a trial de novo under the Federal Rules of Civil Procedure. In effect, there would be a shift in emphasis and presumptions from the procedure followed by the District Court. Rather than presumping that the record is properly the sole basis for decision, and that the plaintiff must affirmatively establish his need for supplementation, courts should focus on the employee‘s complaint. The administrative record should be admissible as one piece of evidence concerning the issues raised in the complaint, but the employee should have the right to conduct discovery and compel the attendance of witnesses to furnish additional evidence. The Federal Rules accord the trial judge sufficient control over the conduct of discovery and the trial that duplication of proceedings—which serves no party‘s interest—should be minimal.¹⁷⁷

Moreover, it is strange that the District Court, which was concerned with court congestion, suggested that a class action could not be brought (even if the plaintiff‘s claims were typical of those of many individuals in the agency and he was an adequate representative of their interests) unless the class problem was expressly pursued before the agency. See

360 F.Supp. at 1254 n.11. More generally, a number of courts have held that the conclusion that a federal employee is entitled to no trial de novo “necessarily carries with it a denial of class action certification. Where there is review on the record and no trial de novo, there is no class action.”

Spencer v. Schlesinger, 374 F.Supp. 840, 844 n.6 (D.D.C.1974). See also, e. g.,

Pointer v. Sampson, 62 F.R.D. 689, 691, 695-696 & n.33 (D.D.C.1974) (“a class action cannot be maintained if there is not an administrative record for each prospective member of the class“);

Handy v. Gayler, 364 F.Supp. 676, 679 (D.Md.1973) (remanding case to agency for investigation of class complaints). But see, e. g.,

Richerson v. Fargo, 61 F.R.D. 641 (E.D.Pa.1974). If it were true that the denial of a trial de novo automatically precludes a class action, that fact would merely add additional weight to our conclusion that federal employees have the same right to a trial de novo as do private sector employees. Congress was aware of the importance of class actions in Title VII litigation, see, e. g., Legislative History at 1589-1590 (statements of Senator Javits), 1773 (statements of Senator Williams), and Senator Williams, in his section-by-section analysis of the final version of the 1972 Amendments, observed:

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 VII in conjunction with Rule 23 of the Federal Rules of Civil Procedure. The courts have been particularly cognizant of the fact that claims under Title VII involve the vindication of a major public interest, and that any action under the Act involves considerations beyond those raised by the individual claimant. As a consequence, the leading cases in this area to date have recognized that many Title VII claims are necessarily class action complaints and that, accordingly, it is not necessary that each individual entitled to relief be named in the original charge or in the claim for relief. A provision limiting class actions was contained in the House bill and specifically rejected by the Conference Committee.

Legislative History at 1847 (emphasis added). There is a strong federal policy of encouraging class action litigation in situations of pervasive discrimination, cf., e. g.,

Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 401-402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968), and private sector litigants may bring class actions even if only a single party has proceeded through the EEOC. See, e. g.,

Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 44 L.Ed.2d 280 (June 24, 1975);

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

Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 1969). Congress gave no hint that a federal employee‘s Title VII claims do not also “involve[] considerations beyond those raised by the individual claimant” which can be adjudicated most efficiently through the class action device. Of course, given our holding that the federal employee “civil action” is a trial de novo with the same concomitants of the private sector “civil action,” there will be no barrier to such salutary class proceedings in situations where a plaintiff otherwise satisfies the criteria of Rule 23. However, even if the District Courts were limited to review of the administrative record, it would appear that class action treatment after a single individual had exhausted his administrative remedies would be proper; as Senator Williams had argued, discrimination—particularly when it is systemic—is almost inherently appropriate for class treatment, and the CSC‘s regulations in effect require that agencies treat each individual‘s complaint broadly enough to encompass discrimination that may be practiced against others similarly situated:

The [agency] investigation shall include a thorough review of the circumstances under which the alleged discrimination occurred, the treatment of members of the complainant‘s group identified by his complaint as compared with the treatment of other employees in the organizational segment in which the alleged discrimination occurred, and any policies and practices related to the work situation which may constitute, or appear to constitute, discrimination even though they have not been expressly cited by the complainant.

5 C.F.R. § 713.216(a) (1974). Thus, in situations in which a complainant satisfies the criteria of Rule 23, the agency record should provide a sufficient foundation for class relief even if review of that record is all that is required of the courts.

Nor is the District Court‘s concern that a trial de novo will unduly burden the federal courts within this jurisdiction persuasive. Even if the District Court‘s approach were followed, the same number of federal employee Title VII cases would presumably be filed,¹⁷⁸ and the District Judge would be forced to scrutinize the full administrative record not only to determine whether it is complete enough so as to preclude the necessity for supplementation,¹⁷⁹ but also to evaluate where the preponderance of the evidence lies. On the other hand, if an irrevocable right to a trial de novo is accorded federal employees, the trial judge would not be required to estimate whether the record is complete; discovery could be conducted without substantial judicial oversight, as contemplated by the Federal Rules of Civil Procedure,¹⁸⁰ and the taking of live testimony¹⁸¹ from the few individuals on whose credibility a case might turn

should not expend excessive judicial resources or courtroom time. Finally, 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 estimated 10.1 million state and local government employees and millions of additional private sector employees.¹⁸² 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, and the increase in respect which such decisions would be accorded. There is no indication that Congress believed that any burden created by federal employee litigation would, to the contrary, be undesirable in light of the similar laudable purposes which it serves.¹⁸³

Moreover, the argument advanced by the District Court that the CSC has developed substantial expertise with respect to discrimination charges and possesses a unique ability to separate such charges from the intricacies of civil service regulations does not furnish even the slightest policy justification for denying federal employees trials de novo. Congress through Section 717(c) expressly accorded federal employees the right to file a civil action within 30 days after final agency action, thereby totally bypassing the CSC‘s appeals machinery.¹⁸⁴ Seen from this perspective,¹⁸⁵ it is clear that there need be no exercise of CSC expertise, either in identifying discrimination or in isolating it from legitimate civil service personnel requirements.¹⁸⁶ Thus the relevant comparison is not between federal judges and the members of the CSC, but between federal judges and the complaints examiners who conduct agency hearings or the self-interested agency heads who are vested with the power of making the final agency determination on their employees’ complaints. The experience of federal judges in other areas of anti-discrimination law and in private sector and state and local government employees’ Title VII actions has been extensive, and renders them particularly sensitive and adept at analyzing and deciding discrimination claims of federal employees under Title VII. Indeed, Congress was satisfied not only that federal judges were attuned to the problems of discrimination, but also that they were particularly qualified for fairly deciding the merits of such claims.¹⁸⁷ Moreover, to whatever extent the CSC does possess unique expertise in federal personnel matters, a District Judge would have the benefit of that expertise by way of any opinion issued by the CSC in the case (if the complainant has appealed to the CSC before filing suit in District Court)¹⁸⁸ or by way of an amicus brief should illumination be required in a case brought directly from the employing agency to the District Court. Indeed, the CSC recognizes that complaints examiners may be baffled by civil service requirements and provides for clarifying instructions should they be necessary.¹⁸⁹

With respect to the District Court‘s argument that Congress simply wanted “prompt and consistent” decisions, and that the trial de novo works contra this purpose since a “wholly new record” must be developed and “opportunity for reasonable discovery provided,”¹⁹⁰ little need be said. Surely Congress intended that Title VII cases be expedited both in the agencies and in the courts. But more important, it wanted all vestiges of discrimination eradicated. To tell an aggrieved federal 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 pertaining to that claim is, to say the least, incongruous. Indeed, it is particularly incongruous to suggest that “reasonable” discovery—especially when it is intended to obtain information unobtainable at the agency level or beyond the reach of the complaints examiner‘s powers—is actually an evil to be avoided. Moreover, given the fact that decisions on these complaints are made by countless agency heads upon the recommendations of complaints examiners without legal training who are not even properly instructed as to the applicable legal principles,¹⁹¹ agency decisions are unlikely to be “consistent,” unless by that term we mean consistently self-serving.¹⁹²

Concerning the District Court‘s summation,¹⁹³ we simply fail to perceive what substantive policies of the Act, from the perspective of the federal employee who is aggrieved by his agency‘s or the CSC‘s treatment of his complaint,¹⁹⁴ 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, and “inherent uncertainties,” whatever they might be, are surely preferable to the certainty that a potentially erroneous administrative decision is perpetuated in the courts.

III

To hold, as we have, that federal employees have the right to a trial de novo under Section 717 of Title VII is not, we must stress, to say that the administrative hearing record and agency findings have no role to play in that trial. Nor is it to say that summary judgment cannot be granted in appropriate circumstances.

The Supreme Court‘s recent unanimous decision in

Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), is particularly instructive with respect to the question of the admissibility of the administrative record. In Alexander the Court held that a private sector employee‘s right to a trial de novo under Title VII is not foreclosed by the prior submission of his discrimination claim to final arbitration under the nondiscrimination clause of a collective bargaining agreement. Nevertheless, the Court indicated that the “arbitral decision may be admitted as evidence and accorded such weight as the court deems appropriate.”¹⁹⁵ We believe that the compiled administrative record, though not the focus of the court‘s attention in a de novo action under Title VII, will nevertheless also shed evidentiary light on the issues raised in the complaint, and should thus be accorded similar treatment. This is particularly true because rendering the record admissible may obviate the necessity for taking extensive testimony at trial.

With respect to a motion for summary judgment, Rule 56 of the Federal Rules of Civil Procedure specifies that such a motion is to be granted only when there is “no genuine issue as to any material fact” and “the moving party is entitled to a judgment as a matter of law.” In some situations the administrative record may itself provide a sufficient basis for granting such a motion. For example, both parties may have presented all evidence before the complaints examiner and may agree that no further factual presentations are necessary; the only dispute may concern the legal conclusions to be drawn from the undisputed facts. Another situation might be one in which a complainant argues that a supervisor is racially prejudiced, but the record conclusively shows that the complainant has not met a nondiscretionary and valid criterion for promotion.¹⁹⁶ In such a situation, even if the agency determination of the supervisor‘s racial predilections were controverted, there might be no necessity for taking additional testimony on the point; since the undisputed facts would still be dispositive of the legal issue in the case, the racial question would not be “material” under Rule 56. However, in many promotional situations—particularly at higher GS levels where the ultimate decision is committed to managerial discretion with few or no objective criteria—the crucial factual issue of whether the supervisor‘s actual motives had racial overtones will be material, and if disputed will preclude grant of summary judgment; instead, the District Judge would have to hear testimony to enable him to evaluate the credibility of the supervisors involved.

Moreover, in analyzing whether a case is one meet for summary judgment treatment, the relevant legal standards under Title VII must be recalled; such standards will affect whether a disputed fact is indeed “material” with respect to resolving the case. In

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Supreme Court discussed the order and allocation of proof appropriate in private, non-class Title VII actions. The unanimous Court held that the burden of proof in such cases does shift once the complainant has established a prima facie case, but that even a seemingly valid defense may be overcome by a showing that it is merely a subterfuge:

The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. * * *

The burden [of proof] then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee‘s rejection. * * *

* * * [B]ut the inquiry does not end here. * * * [The complainant must] be afforded a fair opportunity to show that [the respondent‘s] stated reason for [the complainant‘s] rejection was in fact pretext.

Id. at 802, 804, 93 S.Ct. at 1824, 1825. Even if we were to ignore appellant‘s contention that summary judgment was inappropriate because the administrative record itself contained sufficient evidence to establish a prima facie case of discrimination, we would be confronted with the fact that the District Court‘s grant of summary judgment in this case denied appellant the right to conduct discovery that might reasonably reveal¹⁹⁷ disputed issues of facts material to the resolution of appellant‘s complaint under these standards of proof.

For example, appellant was accorded no opportunity to obtain relevant personnel data so that the comparative treatment of appellant and other I&S investigators (comparing not only the length of time until promotion, but also such factors as conditions in the agency at the time of promotion, the identity of the supervisor, the nature of the job assignments, and the job evaluations of individuals who were or were nor promoted after specific lengths of time) could be scrutinized in an adversarial context; such statistical data could establish a prima facie case of discrimination, and were thus not only controverted,¹⁹⁸ but also material. Procurement of such data was especially important in light of the climate of racial discrimination which all agreed existed at least at some point in the agency‘s history.¹⁹⁹ Nor was appellant accorded an opportunity to secure the testimony of Holland, who apparently promised to write a statement explaining why appellant would never become a part of the I&S “family” but whose testimony could not be obtained at the agency level,²⁰⁰ or of Haycraft, who only submitted an affidavit on Maiers’ use of the derogatory term “burr heads.”²⁰¹ This information would be relevant to the factual issue of whether appellees’ stated reasons for not promoting appellant were merely a pretext and a mask for actual racial discrimination.

Furthermore, 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 testimony, a witness’ trial testimony is not cumulative merely because it repeats his testimony before the agency. Thus the fact that Maiers and Rettew testified before the complaints examiner does not preclude their being called to repeat their testimony in appellant‘s de novo “civil action“; their live testimony might have substantially illuminated their actual motivations in not promoting appellant, and it is clear that summary judgment is particularly inappropriate where credibility is an integral component of a material factual conflict.²⁰² Indeed, since there were no written criteria for promotion, a racially discriminatory denial of promotion could easily pass as one motivated by a desire to accord appellant greater training. And on remand the trial judge might evaluate the motivations of appellant‘s supervisors against the background in which the “bit further to go”²⁰³ which appellant purportedly needed after one year without promotion has stretched to over five years, and in which appellant was personally given favorable job evaluations while negative comments were being inserted in a secret evaluation folder. In such circumstances, the necessity for delving into the motivations of appellant‘s supervisors before a court under adversarial safeguards is particularly compelling.²⁰⁴

On the record before us, there appear to be disputed issues of material fact which should have precluded the grant of appellees’ motion for summary judgment. In any event, since the District Court improperly focused on the administrative record and therefore denied appellant the opportunity to conduct discovery that could provide evidence on these issues, we reverse the judgment of the District Court and remand this case for further proceedings not inconsistent with this opinion.

So ordered.

APPENDIX A

H.R. 1746

January 22, 1971

A BILL

To further promote equal employment opportunities for American worker.

* * * * * *

SEC. 4. Section 706 of the Civil Rights Act of 1964 (89 Stat. 259; 42 U.S.C. 2000e-5) is amended to read as follows:

“PREVENTION OF UNLAWFUL EMPLOYMENT PRACTICES

“SEC. 706. (a) The Commission is empowered, as hereinafter provided, to prevent any person from engaging in any unlawful employment practice as set forth in section 703 or 704 of this title.

“(b) Whenever a charge is filed by or on behalf of a person claiming to be aggrieved, or by a member of the Commission, alleging that an employer, employment agency, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs has engaged in an unlawful employment practice, the Commission shall serve a copy of the charge on such employer, employment agency, labor organization, or joint labor-management committee (hereinafter referred to as the ‘respondent‘) and shall make an investigation thereof. Charges shall be in writing and shall contain such information and be in such form as the Commission requires. Charges shall not be made public by the Commission. If the Commission determines after such investigation that there is no reason to believe that the charge is true, it shall dismiss the charge and promptly notify the person claiming to be aggrieved and the respondent of its action. If the Commission determines after such investigation that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.

* * * * * *

The Commission shall make its determination on reasonable cause as promptly as possible and, as far as practicable, not later than one hundred and twenty days from the filing of the charge or, where applicable under subsection (c) or (d), from the date upon which the Commission is authorized to take action with respect to the charge.

* * * * * *

“(f) If the Commission determines after attempting to secure voluntary compliance under subsection (b) that it is unable to secure from the respondent a conciliation agreement acceptable to the Commission and to the person aggrieved, which determination shall not be reviewable in any court, the Commission shall issue and cause to be served upon the respondent a complaint stating the facts upon which the allegation of the unlawful employment practice is based, together with a notice of hearing before the Commission, or a member or agent thereof, at a place therein fixed not less than five days after the serving of such complaint. Related proceedings may be consolidated for hearing. Any member of the Commission who filed a charge in any case shall not participate in a hearing on any complaint arising out of such charge, except as a witness.

“(g) A respondent shall have the right to file an answer to the complaint against him and with the leave of the Commission, which shall be granted whenever it is reasonable and fair to do so, may amend his answer at any time. Respondents and the person aggrieved shall be parties and may appear at any stage of the proceedings, with or without counsel. The Commission may grant such other persons a right to intervene or to file briefs or make oral arguments as amicus curiae or for other purposes, as it considers appropriate. All testimony shall be taken under oath and shall be reduced to writing.

“(h) If the Commission finds that the respondent has engaged in an unlawful employment practice, the Commission shall state its findings of fact and shall issue and cause to be served on the respondent and the person or persons aggrieved by such unlawful employment practice an order requiring the respondent to cease and desist from such unlawful employment practice and to take such affirmative action, including reinstatement or hiring of employees, with or without backpay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice), as will effectuate the policies of this title: * * * Such order may further require such respondent to make reports from time to time showing the extent to which he has complied with the order. If the Commission finds that the respondent has not engaged in any unlawful employment practice, the Commission shall state its findings of fact and shall issue and cause to be served on the respondent and the person or persons alleged in the complaint to be aggrieved an order dismissing the complaint.

* * *

“(i) After a charge has been filed and until the record has been filed in court as hereinafter provided, the proceeding may at any time be ended by agreement between the Commission and the parties for the elimination of the alleged unlawful employment practice, approved by the Commission, and the Commission may at any time, upon reasonable notice, modify or set aside, in whole or in part, any finding or order made or issued by it. An agreement approved by the Commission shall be enforceable under subsection (k) and the provisions of that subsection shall be applicable to the extent appropriate to a proceeding to enforce an agreement.

“(j) Findings of fact and orders made or issued under subsection (h) or (i) of this section shall be determined on the record.

“(k) The Commission may petition any United States court of appeals within any circuit wherein the unlawful employment practice in question occurred or wherein the respondent resides or transacts business for the enforcement of its order and for appropriate temporary relief or restraining order, and shall file in the court the record in the proceedings as provided in section 2112 of title 28, United States Code. Upon such filing, the court shall cause notice thereof to be served upon the parties to the proceeding before the Commission, and thereupon shall have jurisdiction of the proceeding and of the question determined therein and shall have power to grant such temporary relief, restraining order, or other order as it deems just and proper, and to make and enter a decree enforcing, modifying, and enforcing as so modified, or setting aside in whole or in part the order of the Commission. No objection that has not been urged before the Commission, its member, or agent, shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances. The findings of the Commission with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive. If any party shall apply to the court for leave to adduce additional evidence and shall show to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the hearing before the Commission, its member, or agent, the court may order such additional evidence to be taken before the Commission, its member, or agent, and to be made a part of the record. The Commission may modify its findings as to the facts, or make new findings, by reason of additional evidence so taken and filed, and it shall file such modified or new findings, which findings with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive, and its recommendations, if any, for the modification or setting aside of its original order. Upon the filing of the record with it the jurisdiction of the court shall be exclusive and its judgment and decree shall be final, except that the same shall be subject to review by the Supreme Court of the United States as provided in section 1254 of title 28, United States Code. Petitions filed under this subsection shall be heard expeditiously.

“(l) Any party aggrieved by a final order of the Commission granting or denying, in whole or in part, the relief sought may obtain a review of such order [under provisions identical to those set out in subsection (k)].

* * * * * *

SEC. 7. “INVESTIGATORY POWERS

“SEC. 710. For the purpose of all hearings and investigations conducted by the Commission or its duly authorized agents or agencies, section 11 of the National Labor Relations Act (49 Stat. 455; 28 [29] U.S.C. 161) shall apply:

* * * * * *

(h) Section 713 of such Act (78 Stat. 265; 42 U.S.C. 2000e-12) is amended by adding at the end thereof the following new subsections:

“(c) * * * * [T]he Commission may delegate any of its functions, duties, and powers to such person or persons as the Commission may designate by regulation, including functions, duties, and powers with respect to investigating, conciliating, hearing, determining, ordering, certifying, reporting, or otherwise acting as to any work, business, or matter: Provided, That nothing in this subsection authorizes the Commission to provide for persons other than those referred to in clauses (2) and (3) of subsection (b) of section 556 title 5 of the United States Code to conduct any hearing to which that section applies.

* * * * * *

(j) Section 715 of such Act (78 Stat. 265; 42 U.S.C. 2000e-14) is amended to read as follows:

“CIVIL ACTIONS BY PERSONS AGGRIEVED

“SEC. 715. (a) If (1) the Commission determines that there is no reasonable cause to believe the charge is true and dismisses the charge in accordance with section 706(b), (2) finds no probable jurisdiction and dismisses the charge, or (3) within one hundred and eighty days after a charge is filed with the Commission, or within one hundred and eighty days after expiration of any period of reference under section 706(c) or (d), the Commission has not either (i) issued a complaint in accordance with section 706(f), (ii) determined that there is not reasonable cause to believe the charge is true and dismissed the charge in accordance with section 706(b) or found no probable jurisdiction and dismissed the charge, or (iii) entered into a conciliation agreement acceptable to the Commission and to the person aggrieved in accordance with section 706(f) or an agreement with the parties in accordance with section 706(i), the Commission shall so notify the person aggrieved and within sixty days after the giving of such notice a civil action may be brought against the respondent named in the charge (1) by the person claiming to be aggrieved, or (2) if such charge was filed by a member of the Commission, by any person whom the charge alleges was aggrieved by the alleged unlawful employment practice. Upon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize the commencement of the action without the payment of fees, costs, or security. Upon timely application, the court may, in its discretion, permit the Commission to intervene in such civil action if it certifies that the case is of general public importance. Upon the commencement of such civil action, the Commission shall be divested of jurisdiction over the proceeding and shall take no further action with respect thereto: Provided, That, upon request, the court may, in its discretion, stay further proceedings for not more than sixty days pending termination of State or local proceedings described in subsection (c) or (d) or the efforts of the Commission to obtain voluntary compliance.

“(b) Each United States district court and each United States court of a place subject to the jurisdiction of the United States shall have jurisdiction of actions brought under this section. Such an action may be brought in any judicial district in the State in which the unlawful employment practice is alleged to have been committed, or in the judicial district in which the plaintiff would have been employed but for the alleged unlawful employment practice, but if the respondent is not found within any such district, such an action may be brought within the judicial district in which the respondent has his principal office. For purposes of sections 1404 and 1406 of title 28 of the United States Code, the judicial district in which the respondent has his principal office shall in all cases be considered a district in which the action might have been brought. Upon the bringing of any such action, the district court shall have jurisdiction to grant such temporary or preliminary relief as it deems just and proper.

“(c) If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include reinstatement or hiring of employees, with or without backpay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice).

* * * * * *

SEC. 11. Title VII of the Civil Rights Act of 1964 (78 Stat. 253; 42 U.S.C. 2000e et seq.) is amended by adding at the end thereof the following new sections:

“NONDISCRIMINATION IN FEDERAL GOVERNMENT EMPLOYMENT

“SEC. 717. (a) All personnel actions affecting employees or applicants for employment in the competitive service (as defined in section 2102 of title 5 of the United States Code) or employees or applicants for employment in positions with the District of Columbia government covered by the Civil Service Retirement Act shall be made free from any discrimination based on race, color, religion, sex, or national origin.

“(b) The Equal Employment Opportunity Commission shall have authority to enforce the provision of subsection (a) and shall issue such rules, regulations, orders, and instructions as it deems necessary and appropriate to carry out its responsibilities hereunder, and the head of each executive department and agency and the appropriate officers of the District of Columbia shall comply with such rules, regulations, orders, and instructions: Provided, That such rules and regulations shall provide that an employee or applicant for employment shall be notified of any final action taken on any complaint filed by him thereunder.

“(c) Within thirty days of receipt of notice given under subsection (b), the employee or applicant for employment, if aggrieved by the final disposition of his complaint, may file a civil action as provided in section 715, in which civil action the head of the executive department or agency, or the District of Columbia, as appropriate, shall be the respondent.

“(d) The provisions of section 715 shall govern civil actions brought hereunder.

“(e) All functions of the Civil Service Commission which the Director of the Bureau of the Budget determines relate to nondiscrimination in government employment are transferred to the Equal Employment Opportunity Commission.

“(f) All authority, functions, and responsibilities vested in the Secretary of Labor pursuant to Executive Order 11246 relating to nondiscrimination in employment by Government contractors and subcontractors and nondiscrimination in federally assisted construction contracts are transferred to the Equal Employment Opportunity Commission, together with such personnel, property, records, and unexpended balances of appropriations, allocations, and other funds employed, used, held, available or to be made available in connection with the functions transferred to the Commission hereby as may be necessary to enable the Commission to carry out its functions pursuant to this subsection, and the Commission shall hereafter carry out all such authority, functions, and responsibilities pursuant to such order.

* * * * * *

APPENDIX B

S. 2515

That this Act may be cited as the “Equal Employment Opportunities Enforcement Act of 1971“.

* * * * * *

Sec. 4. (a) Subsections (a) through (e) of section 706 of the Civil Rights Act of 1964 (78 Stat. 259; 42 U.S.C. 2000e-5(a)-(e)) are amended to read as follows:

“(a) The Commission is empowered, as hereinafter provided, to prevent any person from engaging in any unlawful employment practice as set forth in section 703 or 704 of this title.

“(b) Whenever a charge is filed by or on behalf of a person claiming to be aggrieved, or by an officer or employee of the Commission upon the request of any person claiming to be aggrieved, alleging that an employer, employment agency, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, has engaged in an unlawful employment practice, the Commission shall serve a notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) on such employer, employment agency, labor organization, or joint labor-management committee (hereinafter referred to as the ‘respondent‘) within ten days, and shall make an investigation thereof. Charges shall be in writing and shall contain such information and be in such form as the Commission requires. Charges shall not be made public by the Commission. If the Commission determines after such investigation that there is not reasonable cause to believe that the charge is true, it shall dismiss the charge and promptly notify the person claiming to be aggrieved and the respondent of its action. In determining whether reasonable cause exists, the Commission shall accord substantial weight to final findings and orders made by State or local authorities in proceedings commenced under State or local law pursuant to the requirements of subsections (c) and (d). If the Commission determines after such investigation that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.

* * * * * *

“(f) If the Commission determines after attempting to secure voluntary compliance under subsection (b) that it is unable to secure from the respondent a conciliation agreement acceptable to the Commission, which determination shall not be reviewable in any court, the Commission shall issue and cause to be served upon any respondent not a government, governmental agency, or political subdivision a complaint stating the facts upon which the allegation of the unlawful employment practice is based, together with a notice of hearing before the Commission, or a member or agent thereof, at a place therein fixed not less than five days after the serving of such complaint. In the case of a respondent which is a government, governmental agency, or political subdivision, the Commission shall take no further action and shall refer the case to the Attorney General who may bring a civil action against such respondent in the appropriate United States district court. The person or persons aggrieved shall have the right to intervene in such civil action. The provisions of section 706(q) through (w), as applicable, shall govern civil actions brought hereunder. Related proceedings may be consolidated for hearing. Any officer or employee of the Commission who filed a charge in any case shall not participate in a hearing on any complaint arising out of such charge, except as a witness.

“(g) A respondent shall have the right to file an answer to the complaint against him and with the leave of the Commission, which shall be granted whenever it is reasonable and fair to do so, may amend his answer at any time. Respondents and the person or persons aggrieved shall be parties and may appear at any stage of the proceedings, with or without counsel. The Commission may grant other persons a right to intervene or to file briefs or make oral arguments as amicus curiae or for other purposes, as it considers appropriate. All testimony shall be taken under oath and shall be reduced to writing. Any such proceeding shall, so far as practicable, be conducted in accordance with the rules of evidence applicable in the district courts of the United States under the Rules of Civil Procedure for the district courts of the United States.

“(h) If the Commission finds that the respondent has engaged in an unlawful employment practice, the Commission shall state its findings of fact and shall issue and cause to be served on the respondent and the person or persons aggrieved by such unlawful employment practice an order requiring the respondent to cease and desist from such unlawful employment practice and to take such affirmative action, including reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organizations, as the case may be, responsible for the unlawful employment practice), as will effectuate the policies of this title, * * *. If the Commission finds that the respondent has not engaged in any unlawful employment practice, the Commission shall state its findings of fact and shall issue and cause to be served on the respondent and the person or persons alleged in the complaint to be aggrieved an order dismissing the complaint.

* * * * * *

“(j) Findings of fact and orders made or issued under subsection (h) or (i) of this section shall be determined on the record. Sections 554, 555, 556, and 557 of title 5 of the United States Code shall apply to such proceedings.

“(k) Any party aggrieved by a final order of the Commission granting or denying in whole or in part the relief sought may obtain a review of such order in any United States court of appeals for the circuit in which the unlawful employment practice in question is alleged to have occurred or in which such party resides or transacts business, or in the Court of Appeals for the District of Columbia Circuit, by filing in such court within sixty days after the service of such order, a written petition praying that the order of the Commission be modified or set aside. A copy of such petition shall be forthwith transmitted by the clerk of the court to the Commission and to any other party to the proceeding before the Commission, and thereupon the Commission shall file in the court the record in the proceeding as provided in section 2112 of title 28, United States Code. Upon the filing of the petition the court shall have jurisdiction of the proceeding and of the question determined therein, and shall have power to grant to the petitioner or any other party, including the Commission, such temporary relief or restraining order as it deems just and proper, and to make and enter upon the pleadings, testimony, and proceedings set forth in such record a decree affirming, modifying, or setting aside, in whole or in part, the order of the Commission and enforcing the same to the extent that such order is affirmed or modified. Any party to the proceeding before the Commission shall be permitted to intervene in the court of appeals. The commencement of proceedings under this subsection shall not, unless ordered by the court, operate as a stay of the order of the Commission. No objection that has not been urged before the Commission, its member, or agent shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances. The findings of the Commission with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive. If any party shall apply to the court for leave to adduce additional evidence and shall show to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the hearing before the Commission, its member, or its agent, the court may order such additional evidence to be taken before the Commission, its member, or its agent, and to be made a part of the record. The Commission may modify its findings as to the facts, or make new findings, by reason of additional evidence so taken and filed, and it shall file such modified or new findings, which findings with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive, and its recommendations, if any, for the modification or setting aside of its original order. Upon the filing of the record with it, the jurisdiction of the court shall be exclusive and its judgment and decree shall be final, except that the same shall be subject to review by the Supreme Court of the United States, as provided in section 1254 of title 28, United States Code. Petitions filed under this subsection shall be heard expeditiously.

“(l) The Commission may petition any United States court of appeals for the circuit in which the unlawful employment practice in question occurred or in which the respondent resides or transacts business, for the enforcement of its order and [the provisions of subsection (k) shall govern those proceedings].

* * * * * *

“(q)(1) If a charge filed with the Commission pursuant to subsection (b) is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge or the expiration of any period of reference under subsection (c) or (d), whichever is later, the Commission has not issued a complaint under subsection (f), the Attorney General has not filed a civil action under subsection (f), or the Commission has not entered into an agreement under subsection (f) or (i) to which the person aggrieved is a party, the Commission shall so notify the person aggrieved and within sixty days after the giving of such notice a civil action may be brought against the respondent named in the charge (1) by the person claiming to be aggrieved, or (2) if such charge was filed by an officer or employee of the Commission, by any person whom the charge alleges was aggrieved by the alleged unlawful employment practice. Upon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize the commencement of the action without the payment of fees, costs, or security. Upon the commencement of such civil action, the Commission, or the Attorney General in a case involving a government, governmental agency, or political subdivision, shall take no further action with respect thereto, except that, upon timely application, the court in its discretion may permit the Commission, or the Attorney General in a case involving a government, governmental agency, or political subdivision, to intervene in such civil action if the Commission, or the Attorney General in a case involving a government, governmental agency, or political subdivision, certifies that the case is of general public importance. Upon request, the court may, in its discretion, stay further proceedings for not more than sixty days pending termination of State or local proceedings described in subsection (c) or (d) or the efforts of the Commission to obtain voluntary compliance.

“(2) The right of an aggrieved person to bring a civil action under paragraph (1) of this subsection shall terminate once the Commission has issued a complaint under subsection (f) or the Attorney General has filed a civil action under subsection (f), or the Commission has entered into an agreement under subsection (f) or (i) to which the person aggrieved is a party, except that (1) if after issuing a complaint the Commission enters into an agreement under subsection (i) without the agreement of the person aggrieved, or has not issued an order under subsection (h) within a period of one hundred and eighty days of the issuance of the complaint, the Commission shall so notify the person aggrieved and a civil action may be brought against the respondent named in the charge at any time prior to the Commission‘s issuance of an order under subsection (h) or, in the case of an agreement under subsection (i) to which the person aggrieved is not a party, within sixty days after receiving notice thereof from the Commission, and (2) where there has been no agreement under subsection (i), if the person aggrieved files a civil action against the respondent during the period from one hundred and eighty days to one year after the issuance of the complaint such person shall notify the Commission of such action and the Commission may petition the court not to proceed with the suit. The court may dismiss or stay any such action upon a showing that the Commission has been acting with due diligence on the complaint, that the Commission anticipates the issuance of an order under subsection (h) within a reasonable period of time, that the case is exceptional, and that extension of the Commission‘s jurisdiction is warranted.”

(b) Subsections (f) through (k) of section 706 of such Act and references thereto are redesignated as subsections (r) through (w), respectively.

* * * * * *

“(e) Subsequent to the date of enactment of the Equal Employment Opportunities Enforcement Act of 1971, the Commission shall have authority to investigate an act on a charge of a pattern or practice of discrimination, whether filed by or on behalf of a person claiming to be aggrieved or by an officer or employee of the Commission. All such actions shall be conducted in accordance with the procedures set forth in section 706, including the provisions for enforcement and appellate review contained in subsections (k) (l), (m), and (n) thereof.”

* * * * * *

“INVESTIGATORY POWERS

“Sec. 710. For the purpose of all hearings and investigations conducted by the Commission or its duly authorized agents or agencies, section 11 of the National Labor Relations Act (49 Stat. 455; 29 U.S.C. 161) shall apply. No subpoena shall be issued on the application of any party to proceedings before the Commission until after the Commission has issued and caused to be served upon the respondent a complaint and notice of hearing under subsection (f) of section 706.”

* * * * * *

Sec. 11. Title VII of the Civil Rights Act of 1964 (78 Stat. 253; 42 U.S.C. 2000e et seq.) is amended by adding at the end thereof the following new section:

“NONDISCRIMINATION IN FEDERAL GOVERNMENT EMPLOYMENT

“Sec. 717. (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 defined in section 102 of title 5, United States Code, in executive agencies (other than the General Accounting Office) as defined in section 105 of title 5, United States Code (including employees and applicants for employment who are paid from nonappropriated funds), in the United States Postal Service and the Postal Rate Commission, in those units of the Government of the District of Columbia having positions in the competitive service, and in the legislative and judicial branches of the Federal Government having positions in the competitive service, shall be made free from any discrimination based on race, color, religion, sex, or national origin.

“(b) The Civil Service Commission shall have authority to enforce the provisions of subsection (a) through appropriate remedies, including reinstatement or hiring of employees with or without back pay, as will effectuate the policies of this section, and shall issue such rules, regulations, orders and instructions as it deems necessary and appropriate to carry out its responsibilities under this section. The Civil Service Commission shall—

(1) be responsible for the annual review and approval of a national and regional equal employment opportunity plan which each department and agency and each appropriate unit referred to in section 717(a) shall submit in order to maintain an affirmative program of equal employment opportunity for all such employees and applicants for employment;

(2). be responsible for the review and evaluation of the operation of all agency equal employment opportunity programs, periodically obtaining and publishing (on at least a semiannual basis) progress reports from each such department, agency, or unit; and

(3) consult with and solicit the recommendations of interested individuals, groups, and organizations relating to equal employment opportunity.

The head of each such department, agency, or unit shall comply with such rules, regulations, orders, and instructions which shall include a provision that an employee or applicant for employment shall be notified of any final action taken on any complaint of discrimination filed by him thereunder. The plan submitted by each department, agency, and unit shall include, but not be limited to—

(1) provision for the establishment of training and education programs designed to provide a maximum opportunity for employees to advance so as to perform at their highest potential; and

“(2) a description of the qualifications in terms of training and experience relating to equal employment opportunity for the principal and operating officials of each such department, agency, or unit responsible for carrying out the equal employment opportunity program and of the allocation of personnel and resources proposed by such department, agency, or unit to carry out its equal employment opportunity program.

“(c) Within thirty days of receipt of notice of final action taken by a department, agency, or unit referred to in subsection 717(a), or by the Civil Service Commission upon an appeal from a decision or order of such department, agency, or unit on a complaint of discrimination based on race, color, religion, sex or national origin, brought pursuant to subsection (a) of this section, Executive Order 11478 or any succeeding Executive orders, or after one hundred and eighty days from the filing of the 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(q), in which civil action the head of the department, agency, or unit, as appropriate, shall be the defendant.

“(d) The provisions of section 706(q) through (w), as applicable, shall govern civil actions brought hereunder.

“(e) Nothing contained in this Act shall relieve any Government agency or official of its or his primary responsibility to assure nondiscrimination in employment as required by the Constitution and statutes or of its or his responsibilities under Executive Order 11478 relating to equal employment opportunity in the Federal Government.

* * * * * *

Appendix C*

Civil Rights Employment FY 1970 - FY 1975

	FY 1970	FY 1971	FY 1972	FY 1973	FY 1974	FY 1975
TOTAL	344	757	1015	1787	2472
D. of C.	7	11	26	76	87
Territories
89 Districts

1st Circuit

Maine				5	5	4
Massachusetts	3	9	11	19	43
New Hampshire	1	1	1	3	8
Rhode Island				3	4
Puerto Rico				4	5	20

2nd Circuit

Connecticut		4	11	17	35
New York, N.	1	1	3	7	10
E.		1	7		17
S.	3	1	11	20	33
W.	1	1	7	23	20
Vermont				3	3

3rd Circuit

Delaware			1	8	6
New Jersey	9	10	23	30	43
Penn., E.	3	1	4	15	22
M.			1	6	6
W.	5	6	4	14	29
Virgin Islands

4th Circuit

Maryland	3	11	9	37	41
N.C., E.	3	2	5	2	4
M.	1	2	4	8	19
W.	1	3	12	23	25
S.C.	5	3	12	23	23
Virginia, E.	5	11	21	32	50
W.	5	3	14	7	12
West Va., N.	1	3	1	2	1
S.	1	4	6	9

5th Circuit

Alabama, N.	13	53	31	57	70
M.	2	3	12	20	20
S.	2	8	10	19	22
Florida, N.		2	1	8	6
M.	4	5	13	24	31
S.	4	20	20	20	23
Georgia, N.	15	37	39	53	55
M.	1	5	4	4	8
S.	3	9	3	7	8
Louisiana, E.	14	51	37	51	54
M.			5		8
W.	5	3	15	20	29
Miss., N.	1	8	9	6	26
S.	2	9	17	27	38
Texas, N.	6	30	34	48	94
E.	5	12	15	21	29	1
S.	18	26	34	71	103
W.	9	9	13	21	55

Canal Zone

6th Circuit

Kentucky, E.		1	4	8	3
W.	1	2	7	16	6
Michigan, E.	7	9	22	28	85
W.	1	8	18	7	13
Ohio, N.	7	22	56	119	141
S.	16	12	13	39	59
Tennessee, E.	1	11	3	18	24
M.	6	13	9	14	17
W.	19	60	20	39	54

7th Circuit

Illinois, N.	6	17	28	80	107
E.	1	3	5	4	7
S.	4	1	8	4	11
Indiana, N.	3	5	10	8	17
S.	6	9	3	26	21
Wisconsin, E.	3	1	8	13	20
W.	1		2	3	7

8th Circuit

Arkansas, E.	1	10	5	18	21
W.		3	2	6	3
Iowa, N.		3	1	1
S.	4	2	3	3
Minnesota	3	4	7	16	15
Missouri, E.	6	12	12	45	71
W.	9	17	28	31	41
Nebraska		3	13	13	15
N. Dakota					5
S. Dakota			1	1	3

9th Circuit

Alaska	2			1	1
Arizona	4	7	3	15	23
California, N.	11	45	76	98	125
E.	1	1	8	15	20
C.	20	21	40	56	74
S.		1	5	5	6
Hawaii		1			6
Idaho		1	3
Montana			1	2	1	3
Nevada			3	3	3	8
Oregon	2	3	6	14	5
Washington, E.	1	2		5	6
W.	13	2	14	21	27
Guam

10th Circuit

Colorado	7	33	21	30	47
Kansas	4	4	7	36	17
New Mexico	3	15	12	21	42
Oklahoma, N.		5	1	2	6
E.					2
W.	1		6	11	25
Utah			1	1	1	7
Wyoming				3	5	6

* Table supplied by Administrative Office of the United States Courts.

LEVENTHAL, Circuit Judge (concurring):

Since I agree generally with Judge Wright‘s opinion, and certainly agree with its significant points, I am joining in that opinion. This is subject to a significant exception as to Judge Wright‘s discussion in Part II B(2) (

171 U.S.App.D.C. pp. —, 520 F.2d pp. 136-142) of the performance of the Civil Service Commission after the passage of the 1972 act. These, I think, are the significant aspects of the case.

1. Although the text of the statute can be argued either way, it is more natural to consider a statute providing for “an action” in the district court as one that permits a de novo presentation unless there is some other indication to the contrary. The “as applicable” language of the statute relied upon by the District Court and appellees is too general to constitute a significant contrary indication.

2. Here the most important indicator of meaning is legislative history. While there are some passages of this history that support the District Court‘s view, the predominant impact of the legislative history, set out at length in Judge Wright‘s opinion in order to present the full picture, seems to me to lead fairly to the conclusion that what was contemplated by the legislature was a de novo trial in the district court on a charge of racial discrimination in employment, for government employees as for employees in the private sector.

3. What apparently set District Judge Gesell on a contrary course was the conviction that a compulsory de novo trial in every case was an unnecessary and unproductive, indeed counter-productive, drain on the resources of all concerned.¹

For these claims of racial discrimination in employment, as for other civil rights cases, Congress has contemplated a more searching and active role of the courts than for litigation generally or for review of other kinds of governmental action. Judge Gesell recognized this when he provided a broader standard of judicial consideration (preponderance of evidence) than is normally provided for judicial review of agency action (substantial evidence standard¹).

Moreover, Judge Gesell stated that the judge would be obligated to permit supplementation of the administrative record unless non-discrimination was established by the “clear weight of the evidence.”

360 F.Supp. at 1252. This is offset, however, by his procedure for making that determination on the basis of the administrative record, without any right of discovery, and in the case at bar Judge Gesell went so far as to find that the non-discrimination was “crystal clear” and to grant defendant‘s motion for summary judgment without even providing for oral argument on the motion by plaintiff‘s counsel.

For me the path to de novo action for Federal employees is illuminated by

Alexander v. Gardner-Denver Co. 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), which rejected the contention that in actions under Title VII district judges should defer to arbitral decisions rendered after hearings on discrimination claims.²

The case is not squarely in point since the complaint hearing before a Government agency is more formal than an arbitration, and is a statutory rather than a contract procedure. On the other hand, the complaint hearing falls short of a Title VII action in certain of the crucial respects stressed in Alexander v. Gardner-Denver—the lack of compulsory process, except as to government employees; the dispensation with usual rules of evidence; and particularly the lack of discovery procedures. Significantly, the agency complaint hearing has been structured to avoid an “adversary” quality. The nature and purpose of the hearing are described in the Examiner‘s Manual thus: “The hearing is an adjunct to the investigation. It is not an adversary proceeding but is an administrative procedure designed to provide additional evidence.” 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.³

This is not to say that the agency hearings, and appeals taken to the Civil Service Commission, must be blanked out. In contrast with the former practice of an extremely informal procedure, without a verbatim transcript, and with the employee and agency appointing representatives who agreed on a hearing officer, now the examiner is assigned to the case by the Civil Service Commission, from among a certified list; this official has no other duties before the agency; he takes testimony under oath and insures a transcript.

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. But that does not warrant omission of the testimony of crucial witnesses, whose demeanor is of manifest importance to the factfinding function. And the significant discovery right should not be impaired.

Finally, insofar as Judge Gesell values the benefit of the expertise of the Civil Service Commission, particularly for those cases involving the intracacies of regulations governing job qualification selection for, e. g., training and promotion, it may be considered by the judge.⁴ Indeed, Judge Gesell‘s approach is likely to undercut availability of the Commission‘s expertise by encouraging government employees to exercise their option to proceed to court forthwith, for immediate relief, without pursuing an appeal to the Civil Service Commission.

The approaches of this court and the district court may not differ so much in practical result, for the bulk of cases. To the extent there is a difference, it would seem to come closer to the intent of Congress if the Federal employee can proceed in court like any other litigant, subject to informal steps to avoid what is shown to be an unnecessary duplication of the administrative record, rather than be required to make an affirmative showing persuading the judge that there is a “need” before he can exercise procedures routinely accorded to civil litigants.

4. I do not join in Judge Wright‘s opinion in regard to his characterization of the recent course of the Civil Service Commission. In my view, it is not necessary to speak to that matter in this case; it is a matter that is in flux; and if it were to be raised directly in a case I should also like to have before me a complete picture of what the Commission is doing, or more likely is trying to get the several government agencies to do. This would embrace, e. g., the developments in regard to affirmative action plans.

DAVIS, Judge (concurring):

I join in Judge Wright‘s opinion for the court except to the extent of the reservations expressed in paragraph numbered 4 of Judge Leventhal‘s opinion.