CHANDLER v. ROUDEBUSH

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Argument of Joel L. Selig

Chief Justice Warren E. Burger: We will hear arguments next in 74-1599, Chandler against Roudebush.

Mr. Selig you may proceed whenever you are ready.

Mr. Joel L. Selig: Thank you Mr. Chief Justice and may it please the Court.

Prior to 1972, Title VII of the 1964 Civil Rights Act did not apply to the Federal Government.

In 1972, Title VII was amended so as to make unlawful under Title VII, discrimination by Federal agencies and departments.

The 1972 Amendments also provided to federal employees and applicants for employment a right to file a civil action in a United States District Court.

The question in this case is what is the nature and the scope of that civil action.

Petitioner contends that it is a plenary judicial proceeding and the respondents contend that it is a review of the administrative record pursuant to a substantial evidence standard.

Petitioner is a black female employee of the Veterans Administration.

In 1972, she applied for a GS-13 supervisory claims examiner position.

She was designated as highly qualified for the position but a Filipino-American male was selected.

She thereupon filed a compliant alleging that she had been discriminated against on the basis of her race and sex.

An investigation was conducted and after the investigation petitioner was offered the option of either receiving a final agency decision on the basis of the investigative file without an administrative evidentiary hearing or the option of receiving a final agency decision after an administrative evidentiary hearing.

She selected the second option.

Petitioner is not an attorney.

She represented herself at the hearing.

She requested that 24 witnesses be called to testify and the examiner declined to call 15 of the 24 witnesses requested.

Nevertheless, the examiner found partially in petitioner’s favor.

She found that petitioner had been discriminated against on the basis of her sex but that she had not been discriminated against on the basis of her race.

The examiner recommended that petitioner be promoted immediately and retroactively to the position in question.

The examiner’s findings however are only recommendations to the head of the agency or his designee and the Veterans Administration accepted the examiners finding that there had been no race discrimination but rejected the finding that there had been sex discrimination.

Petitioner at that point had the option of filing suit in the District Court or appealing to the Civil Service Commission.

She chose the second option.

The Civil Service Commission affirmed the agency’s decision.

This suit followed.

In the District Court petitioner sought discovery, she sought initially to take two depositions and she requested production of documents in connection with one of these depositions.

The District Court however granted summary judgment on the basis of the administrative record in favor of the defendants with no discovery and the Ninth Circuit affirmed.

The positions -- the issue in this case is sharply drawn and the positions of the parties on stark conflict.

I think that the issue can be stated in terms of two interrelated questions: One, who is the finder of fact in this kind of case, is it the Court or is it the agency; and secondly what evidence may be considered by the Court.

May the Court consider all relevant evidence or is the Court limited to considering the evidence contained in the administrative record?

Justice Potter Stewart: Do you admit that the possibility that the mode of trial in a District Court might be one way had there been no appeal to the Civil Service Commission but on another way if as in this case there was, I suppose, you, representing the clients you do, would not admit of any possibility that -- because your client did take an appeal to the Civil Service Commission.

Mr. Joel L. Selig: Well, that is correct your Honor.

And the statute specifically contemplates that suit maybe filed in either situation and makes no distinction between them.

Justice Potter Stewart: But the suit maybe filed within 30 days after the final agency decision, as I understand it.

Mr. Joel L. Selig: That is right.

Justice Potter Stewart: Or within 15 days after the final agency decision then appeal maybe taken to Civil Service Commission then it is a 180-day.

I know the option, but my question was do you -- and probably I know now your answer because I realize the position that your client is in.

But it just occurred to me that the answer might be -- the mode of trial might be in one way.

where there was no appeal with Civil Service Commission and in another way where there was.

Mr. Joel L. Selig: Well, of course, I would also point out that the only thing added by the appeal to the Civil Service Commission is a further, is a review of the record by the Civil Service Commission.

There is no additional opportunity.

There is an opportunity to make representations, written representations to the Commission but there is no hearing --

Justice Potter Stewart: (Inaudible) in an Appellate Court certainly.

Mr. Joel L. Selig: That is correct.

Justice Potter Stewart: I mean appeal on the record, right?

Mr. Joel L. Selig: That is correct.

Petitioner’s position on this two interrelated issues is that the Court is the finder of fact and that the plaintiff should be permitted to discover and introduce all relevant evidence pursuant to the standards of the Federal Rules of Civil Procedures applied in all other Title VII cases.

If the Court adopts our theory, plaintiffs, in federal sector cases, would have no more procedural rights in District Courts than plaintiffs in any other Title VII cases and they would have no less rights in District Courts than all other plaintiffs.

Justice William H. Rehnquist: What would be the rule as to the admissibility of the administrative record under your theory that you say.

Mr. Joel L. Selig: It is our assumption -- in the first place let me say that normally there is no objection by anyone to admission of the administrative record but we believe that the administrative decision is clearly admissible.

There can be no question about that.

It is a finding of an agency.

It is a business record.

It is also our assumption that --

Justice William H. Rehnquist: Well, I do not know that that necessarily follows if your theory is this is a de novo trial, presumably those issues of fact are for the Court or the jury.

And ordinarily you cannot admit a business record to prove a fact that is ultimately within the jury’s confidence.

Mr. Joel L. Selig: It is our position that certainly the agency decision and the Civil Service Commission is admissible and I am aware --

Justice William H. Rehnquist: What theory if it is really a de novo trial starting all over again?

Mr. Joel L. Selig: It is a -- I think that findings of agencies are normally admissible whether or not the judicial proceeding is a de novo proceeding and it is also a business record.

Chief Justice Warren E. Burger: Are you not suggesting a mixed procedure partly agency review and partly trial de novo?

Mr. Joel L. Selig: No your Honor, not to -- it does not follow from the fact --

Chief Justice Warren E. Burger: (Inaudible) fact could be given, what constructions?

Mr. Joel L. Selig: It would depend.

It would be a -- it would depend entirely on the nature of the questions involved in the case and what is contained in the administrative record and the administrative decision.

But the Court --

Justice William H. Rehnquist: Well, what if judge charge the jury as to the weight to be given.

Mr. Joel L. Selig: Well, there is no is not a jury trial at the time so --

Justice William H. Rehnquist: Okay.

What does the judge -- what rule does he follow as to the weight that should be given.

Mr. Joel L. Selig: Well, this Court in Alexander against Gardner-Denver Company addressed that question in a footnote and said we adopt no rule.

It depends upon the facts and circumstances of the particular case and I would think that the same would apply here.

But the important thing about the footnote in Alexander is that it says that the administrative decision is admissible.

It maybe accorded some weight but that refers to its weight as one piece of evidence along with any other evidence that it is admitted.

And the footnote --

Justice William H. Rehnquist: That is a contractual grievance -- that was a contractual grievance proceeding, was it not?

Mr. Joel L. Selig: That is correct your Honor.

And I would like to respond on that but I would like to finish what I was saying about the footnote which is that the record is admissible.

It is entitled to whatever weight makes sense in the particular circumstances, but that does not mean that it maybe used as a reason for excluding other evidence.

And the Court goes on in the footnote in Alexander to say that it is the duty of the courts to assure the full availability of the judicial forum.

Now, the arbitration process is not a statutory proceeding under Title VII.

However, in Alexander the Court also considered and rejected a proposed rule of deferral to arbitral decisions which the Fifth Circuit had adopted in the case called Rios against Reynolds Metal Company.

And the conditions which the Fifth Circuit set for deferral were, one that the contractual right must coincide with rights under Title VII.

Two, and I -- well, I will not go into them unless the Court wishes but there were a number of conditions which would have to be satisfied under the Rios test for deferring to an arbitral decision and the very first condition was that the arbitral, the rights under the contract must be congruent with Title VII.

And the Court held in Alexander that even if that were so deferral would be inappropriate and there should be a trial de novo.

Now the Government’s position is explicitly that the agency is the finder of fact in these matters subject to substantial evidence review in the courts.

And that the court should normally defer to the findings and decision of the agency.

Furthermore, the Government’s position is that in the ordinary case there is no discovery in the District Court and the record before the reviewing court must be limited to the record made by the defendants -- by the defendant agency.

Under this rule, the Federal Government would be placed in a class all by itself exempt from plenary judicial scrutiny.

We think that it is important to understand what review on the record pursuant to a substantial evidence test means.

And Professor Jaffe has explained it as follows, under the substantial evidence test the Court will be required to sustain a finding which it believes to be incorrect and even against the weight of evidence, because it is the agency and not the Court which finds the facts.

So long as there is substantial evidence in the record taken as a whole that could support the agency’s decision, the Court must accept that decision even if it would believe it to be wrong making an independent judgment.

We think that such a posture by a District Court in a Federal Sector Title VII cases would be wholly inconsistent with the Court’s function as the finder of fact and as the decider of what relief should be provided.

Now, I would like to address --

Chief Justice Warren E. Burger: (Inaudible) assumes the conclusion, does it not?

You say as the finder of facts, the whole issue in this case is whether the court or the agency administrative tribunal is the finder of facts.

Mr. Joel L. Selig: That is correct Mr. Chief Justice and I was just trying to point out that the Government’s rule would be completely inconsistent, what the rule is, in the private sector and in the state and local sector onto the decisions of this Court.

Chief Justice Warren E. Burger: That is true in a great many other areas, is it not, a judicial review of administrative action?

Mr. Joel L. Selig: That is correct but I think that we have to look at this particular statute, its particular language, its particular legislative history and its particular purpose.

And certainly we would not deny that review on the record is the rule in large numbers of cases.

And Congress could have provided for that if it had wanted to do so.

And in that regard it is particularly significant that the draft legislation which would have provided cease and desist authority to the Equal Employment Opportunity Commission in the private sector would have explicitly provide it for review on the record in the Courts of Appeals pursuant to a substantial evidence standard.

This was written into the draft legislation.

Justice Potter Stewart: That was when, in 65 or in 72?

Mr. Joel L. Selig: No, Your Honor.

No.

Mr. Justice Stewart, 72, that is correct.

And that was defeated.

Congress knew how to provide for review on the record if it wanted to do so and they chose not to do so.

Justice Potter Stewart: Is that proposed provision was applicable to federal employees only?

Mr. Joel L. Selig: No, and that is the second point in our favor Mr. Justice Stewart which is that even that draft legislation did not apply to the federal sector and federal sector cases were governed by completely different section of the draft legislation.

Now, I think it is important to consider one of the arguments which was made in favor of cease and desist and Court of Appeals review in the private sector.

And that argument was that it would be to too much of a burden on the District Courts to trial these cases de novo.

There was repeated reference to the problem of congestion in the dockets of the lower courts and a repeatedly expressed reason in favor of agency enforcement rather than court enforcement in the private sector was that this would relieve the burdens on the District Courts.

That argument may have been valid, but it was rejected by the Congress, and I think that that has special significance here.

In that regard, this is why we believe that the comments of Senator Dominick have special significance here.

There would be no 1972 Amendments without Senator Dominick because couture could not have been obtained unless the Congress had agreed to Senator Dominick’s Amendment which would have substituted -- which would have indeed substitute court enforcement in the private sector for cease and desist enforcement in the private sector.

And that Senator Dominick repeatedly expressed his concern that all parties, plaintiffs and defendants in private industry, in state and local governments and in the Federal Government should have their claims adjudicated pursuant to the same procedures and by the same fact finder, i.e., by an independent United States District Judge who would independently determine the merits of their case.

Justice Byron R. White: What was the -- what was the occasion for providing an elaborate administrative remedy for federal employees?

Mr. Joel L. Selig: It already existed Mr. Justice White in substantially the same form prior to the enactment.

Justice Byron R. White: That maybe so, but in saying that you provide the same remedies, well that is just not true if there is an elaborate administrative remedy available.

Mr. Joel L. Selig: Well, they were referring to providing the same remedies in Court.

And I would also like --

Justice Byron R. White: I thought that is what you were saying but nevertheless the federal employee does have different remedies.

Mr. Joel L. Selig: Well, it has different remedies with respect to federal agencies.I would also point out Mr. Justice White --

Justice Byron R. White: Well, it does have different remedies, the additional remedies, it is not the same at all.

Mr. Joel L. Selig: Well, private sector employees and state and local employees frequently have remedies at the state and local level pursuant to State Fair Employment Practice Statutes.

For example, the Minnesota and in Michigan for example and many other states.

You have a Local Fair Employment Practice agency which has cease and desist authority over the private the sector and over state and local employees, which provides trial type adversary hearings with discovery and compulsory process and private sector employees are required to exhaust those procedures before they can even complain to the Equal Employment Opportunity Commission under Title VII.

There maybe many employees in that situation who have a full trial type adversary hearing at the state or local level before they come into Federal Court --

Justice Byron R. White: Aside from Title VII cases, what happens to a federal employee who is discharged and utilizes fully the administrative processes available to him?

What happens to him with respect to the court review.

Mr. Joel L. Selig: You mean under other basis or jurisdiction, Your Honor.

he gets review on the record at the Court’s --

Justice Byron R. White: Where?

Mr. Joel L. Selig: Well, there has traditionally been a remedy in the District Courts.

But the courts are divided as to what the basis for that remedy is.

They are divided also with respect what standard of review is applicable.

Justice Byron R. White: Congress has never sent federal employees to the Court of Appeals after civil service action.

Mr. Joel L. Selig: Not to my knowledge and the DC Circuit has criticized that on numerous occasions and the --

Unknown Speaker: (Inaudible) they have not.

Mr. Joel L. Selig: No, that is correct Your Honor.

Unknown Speaker: (Inaudible) District Court.

Mr. Joel L. Selig: That is correct.

But this, the whole point is I believe that this apparently existed prior to the 1972 Amendments and it did not exist under this statute.

And the question is, what are the procedures to be followed under this Statute.

Justice William H. Rehnquist: Was not a good deal of the opposition to giving the EEOC cease and desist orders from private employers who felt that it might give them less than a fair shake?

Was that not mostly Senator Dominick’s position?

Mr. Joel L. Selig: Well, I think that was a substantial part of his position.

Justice William H. Rehnquist: That same argument certainly would not apply from the point of the Federal Government fearing that the Civil Service Commission would not give it a fair shake.

Mr. Joel L. Selig: No, but it would apply with respect, from the point of view of the federal employee, an applicant for employment, and that concern was repeatedly expressed.

I think I would like to reserve the remainder of my time at this point.

Chief Justice Warren E. Burger: Very well.

Mr. Lee.

Argument of Lee

Mr. Lee: Mr. Chief Justice and may ot please the Court.

Taken in isolation, the language of the statute and its legislative history would support a respectable argument for either record review or de novo trials.

The reasons that are set forth in our brief, we believe are the more persuasive view of the legislative history is that it supports a record review interpretation.

But the most persuasive insight into congressional intent is provided by the fact that beyond any dispute, congress intended to vest and did vest the front line responsibility for insuring equal employment opportunity in the federal sector in the Civil Service Commission.

Justice Potter Stewart: Then how it -- and yet it is very cleat that an employee claiming discrimination can wholly avoid such review and go into the Federal District Court after his agency has acted.

Mr. Lee: It depends, Mr. Justice Stewart on how broadly you consider the Civil Service Commission and its responsibility in this area.

It is true that up to the point of appeal to the Appeals Review Board of the Civil Service Commission that it is a shared responsibility between Civil Service Commission and agency.

But everything that agency does from the beginning of the conciliation process through the investigation, through the attempt to add adjustment of the complaint and including the hearing itself is conducted pursuant to Civil Service Commission Regulations according to procedures that have been prescribed by the Civil Service Commission.

And at the time that you get to the hearing and there is no way that you can skip that and go into Court, well unless the complainant waives it.

But at the time, at the time that you go to the hearing --

Justice Potter Stewart: In your agency?

Mr. Lee: That is correct.

That is the only place there is the hearing, in the agency.

That hearing is conducted is presided over by a full time Civil Service Commission examiner, certified and trained by the Civil Service Commission.

He is not an agency employee.

So that really -- and I appreciate you pointing this out, when I talk about the Civil Service Commission, and this is the thrust of our position, we are really talking about a shared agency responsibility, Civil Service Commission and agency.

But there is no question that the entire procedure is conducted under the aegis of the Civil Service Commission pursuant to its regulations and under its overall supervision and control.

Justice Potter Stewart: Is that what you say applicable to the very first processing of the very first administrative complaint?

Mr. Lee: The very first, the very first step starts on Page 28A of our Appendix, talks about the counseling procedure and that is pursuant to Civil Service Commission Regulations.

Now --

Justice Potter Stewart: Is that done by a Civil Service personnel?

Mr. Lee: No, not personnel, the personnel comes into the point at the hearing examiner but pursuant to Civil Service Commission Regulations.

It is further significant that whereas we are concerned today with the adjudication of a particular complaint, this adjudication process is a part, an integral part, of a much larger whole equal employment opportunity effort by the Federal Government.

It is all subject to the Direction Office, it is under a single office, under a single director, and additional component parts of this overall effort are in addition to the adjudication process.

There is a continuing process carried out by the Bureau of Personnel and Management Evaluation, which evaluates programs on a continuing basis.

In addition, the statute charges the Civil Service Commission with the review and approval of equal employment opportunity plans on a regional and national level and finally the Civil Service Commission is charged with training an upward mobility, affirmative action programs throughout the entire Federal Government.

So that the Federal Judge, when he considers a particularly equal employment opportunity case, gets the picture that is presented by that case.

The Civil Service Commission, by contrast, has the adjudication process as a component part of a much broader overall program and this, this was the thrust of Judge Gisele’s opinion in Hackley versus Johnson.

He made the very significant observation which is true that it is almost impossible in the usual case, federal case, to differentiate between claims appear discrimination on the one hand and the related problems, the necessarily related problems of promotion, hiring, training and general affirmative action and up -- well, no, promotion, hiring and training and the great majority of the cases are promotion cases.

Judge Gisele’s conclusion in a single statement -- in a single sense which I quote is, that “the commission’s growing expertise in civil rights matters coupled with its preeminent expertise in this latter areas emphasizes that an automatic trial de novo will not the serve the laudable purpose of the act.”

It is further instructive to note as was pointed out by Mr. Justice White that regardless of how you decide this case, the Government is going to be in a class by itself.

Congress simply did not go the same route with regard to the private sector and the federal sector.

Justice Potter Stewart: Are there any, even conceivable conditions under which a federal employee could go to the EEOC, they are not.

Mr. Lee: No, they are not.

Justice Potter Stewart: Just not.

Mr. Lee: They just do not have jurisdiction on it.

That is right.

That was -- I guess next to the question of cease and desist authority.

That was the biggest debate in Congress and the contrast is remarkable.

This EEOC simply does not have substantive remedial authority.

It lost that one in Congress.

And as a consequence, the limit of what they can do is conciliation and persuasion.

That is really the first step in the federal sector.

Now the federal employee by contrast has really two points arguably three at which he can win and win affirmatively and have the kind of back pay, reinstatement, promotion, whatever prior to the time that he ever gets into Court.

So the concept of equality is not a relevant one.

That is a matter that is simply precluded because of the structure of the act as set out by Congress.

Chief Justice Warren E. Burger: When you review those status, Mr. Lee, the employee’s options first within the agency briefly.

Mr. Lee: Be happy to Mr. Chief Justice.

The first step is that the complains of an act of discrimination at that point a counselor is appointed, an equal opportunity counselor is appointed --

Chief Justice Warren E. Burger: Within the agency?

Mr. Lee: Within the agency.

That is correct.

And the attempts at that point at the very most informal lever to achieve some kind of an agreement to find out what it is that has happened in the C, if he cannot work it out at that level and a lot percentage of them are worked out at that level.

If within 21 days that has not been done then the aggrieved employee files a formal complaint.

And at that point there is an investigator who is appointed to make an investigation.

The investigator comes from within the agency but he cannot be under the supervision of the person who is alleged to have discriminated.

The investigation is really the heart, initially of the inquiry into discrimination.

He has full authority to ask questions, to interview.

It is not an adversary process; it is an inquisitorial process, and he prepares an investigation file which is a report of what he has found.

The next step is that an attempt at adjustment of the complaint is attempted on the basis of that investigation.

In the event that an adjustment of the complaint can not be achieved, then the complainant indicates that he wants a hearing, and that is when the Civil Service Commission appoints its hearing examiner and the hearing is held within the agency.

Fortunately we have a good record in this case and I would simply commend to the Court that you might want to read the record of the hearing in this case because I think it is an example of how a hearing can operate.

The individual was entitled to be represented by a counsel, he is not required to.

In this case, Mrs. Chandler represented herself and frankly in my opinion she did a good job.

There is a representative of the agency present as well.

In this case it would appear that the representative of the agency was not a lawyer but in any event he would not take a vigorous adversary procedure.

The complaints examiner renders a recommended decision and makes, in effect, findings of fact.

That is forwarded to the agency itself which makes the decision.

From that point the complainant has two options: He can either go direct to Court or he can go to -- or he can appeal to the Appeals Review Board of the Civil Service Commission.

And following 180 days of the filing either with the Civil Service Commission or with the agency it has the right go into Court.

The issue, it seems to us, is that whether it is more consistent with these overall Civil Service Commission responsibilities and the fact of integration of the adjudication process with a much broader federal equal employment opportunity effort to relegate the Civil Service Commission to the role of an examiner or the provider, if you will, of address rehearsal.

The traditional tandem of agency and Court in affecting congressional policy and in utilizing scarce federal resources for this purpose, works best when the agency brings it expertise to bear on substantive policy matters integrating its broader rule making authority with its adjudicatory authority.

And the Court is doing what they do best, correcting errors of law, errors of procedure, excesses of statutory power or constitutional right and correcting factual errors only when they do rise to their level of excesses of substantial evidence.

And this, we submit, is what Congress must have meant by integrating the complaint adjudicating process as a part of the Commissions broader equal employment opportunity in federal and federal merit system responsibilities.

And giving the Commission, on parallel, remedial powers. Senator Williams stated at the conclusion after all of the amendment -- at the time that all of the amendments were made, and the Senate Committee Report also states early in the legislative history that an important adjunct to the strengthened Civil Service Commission responsibilities is the statutory provision of a private right of action or review of the agency proceedings.

That right of review is Senator Williams language later on, that right of review language does not appear in the Senate Committee report.

But the point I would like to make is that both regarded it as an adjunct to the strengthened Civil Service Commission responsibilities.

It is significant in this regard that this Court’s decision in Alexander versus Gardner-Denver, as I read it, relies principally on the fact that in the private, in the arbitration context up until the time that you got into Court, the complainant had not had the access to any official body of the Federal Government that had either the authority or the responsibility for implementing and for fleshing out the details and implementing of equal employment opportunity policy.

The statement is made a number of ways in a number of different places in the Gardner-Denver opinion.

But the thrust is always the same that the responsibility of the arbitrator is to implement the contract whereas the responsibility of the Civil Service Commission by contrast is to implement the statute.

The arbitrator simply has no responsibility to implement the federal policy contained in the 1972 Amendments, by contrast, the Civil Service Commission does and that is its principle responsibility.

Now, Justice Stewart asked the question whether there would be any difference whether you appeal to the -- directly to the appeals -- you appeal directly from the agency or you go through the Appeals Review Board and I think it is apparent, and now that my answer to that question is no.

And the reason is that under either circumstance it is, we do have this tandem of agency responsibility and Court responsibility with each doing the kind of things that they do best.

Chief Justice Warren E. Burger: (Inaudible) the reviewing of the same record?

Mr. Lee: That is correct; that is correct.

Chief Justice Warren E. Burger: Civil Service Commission would review the record last made or if he took the route to the District Court, that would be the basis of judicial review.

Mr. Lee: That is correct, Mr. Chief Justice and I am saying one more thing and that is that whether you go directly from the agency in to Court, it is a review of the administrative record or if you go from the Civil Service Commission in to Court, it is a review of the administrative record because under either circumstance you have the agency having brought its expertise to bear on the problem.

Now to be sure, if it is direct from the agency it is a shared responsibility between Civil Service Commission and the agency but it is still that kind of a tandem responsibility between Courts and agency.

Mr. Selig has pointed out that Congress knew how to provide for substantial evidence review.

That is very correct.

We also know that Congress knows how to provide for de novo review and the fact of the matter is that in this case the language of the statute does lend itself to either interpretation.

There is the language on the one hand, the statement of Senator Williams that clearly point to record review.

There is the statement of Senator Dominick that might lend itself to the other interpretation.

Though I would point out that Senator Williams’ statements in this regard are more to be, not trusted but are more persuasive in this context than those of Senator Dominick, because all of Dominick’s comments were given, or virtually all, were given in the context of one who opposed a particular provision in the statute and that was cease and desist authority in the EEOC, whereas Senator Williams the man who introduced the bill that eventually became the law.

There was no who was more familiar with this bill as it went throughout the various steps, than Senator Williams.

Justice John Paul Stevens: Mr. Lee is this a point of whether Congress might have said so explicitly taking the other’s sides position explicitly?

Are there any other federal statutes that have been construed to limit Court review to the administrative record where the statute is not expressly so stated?

Mr. Lee: I am confident that there are Justice Stevens.

The two statements that we have quoted in our brief, coming from the Beyonce (ph) case, which was a wonder like act review and that one does expressly provide for substantial evidence as does Consolo, and that make the statement in those cases dictum.

But it is very clear dictum and for that reason, I cannot give you an example, but I -- this Court has declared in the clearest possible language that that is the general approach.

And once again, I find it very persuasive that Congress did say that it regarded the right of civil action as an adjunct to strengthened Civil Service Commission procedures.

The petitioner find significant the fact that in the majority of the cases there is no hearing.

We consider this to be neutral insofar as the interpretation of this statute is concerned.

If there has been no hearing it is because the complainant has so elected and has concluded in effect that the investigation is sufficient and provides a sufficient basis for the record.

Justice Potter Stewart: The complainant has an absolute right to a hearing.

Mr. Lee: That is correct.

Moreover, if the complainant elects not to have a hearing that does not mean there is none administrative record to review.

The administrative record for review in those circumstances is the investigation file.

Similarly, it has been urged by the amicus that the average administrative proceeding takes 201 days which is longer than the 180 days and that in some cases it is much higher, as a matter of fact we are advised by the Civil Service Commission that at present the time it is just a little bit higher than that; it is about 200 --

Chief Justice Warren E. Burger: But elapsed time, from beginning to end, not the time consumed in that number of days, is that right?

Mr. Lee: What we are talking about Mr. Chief Justice is the period of time that it takes from the filing of a complaint up until the time that the administrative record is complete.

You have 180 days at the agency level and you also have 180 days at the Civil Service Commission Appeals Review Board in the event that they elect that option.

And I should also point out that with the proposed adoption of class action procedures, we are likely to have other cases in which the elapsed time is even greater.

We do not see this as a significant problem insofar as the present issue is concern for this reason.

In the average case where -- be at the 201 or 218, by the time the Court reaches the issue there will be an administrative record, because with 180 days just in the time that it takes to file an answer, you would be up to the 218 days.

But let us take the case in which it is not 218 maybe it is 300, it is our view that what the Court should do under those circumstances for the reasons that we have been talking about is that Court should entertain a stay motion and should first inquire to determine what the reason is for the delay.

If the Court finds that it is for any reason other than the fault of the agency, the Court should then favorably entertain a stay motion and should wait for the completion of the administrative record.

In the event that the delay is due to the agency’s fault then it would be appropriate for the Court to proceed with de novo review or to take other steps that might -- that are within the discretion of the reviewing court.

Finally, the point has or it is also been argued that there is a problem insofar as the procedures are concerned with the examiner being the only one who has had the opportunity to observe the -- it is a credibility problem, the demeanor problem.

In that respect there are some cases in which credibility and demeanor may occupy a large part of the case.

In those instances, in those instances, if the agency and the Commission have not followed the commissioner, the examiner’s decision, then under the traditional rules of review that were established by this Court in the Universal Camera case, the Court can reverse on that ground alone that inadequate consideration was given to what the examiner did, and similarly another alternative would be simply to remand the case for further consideration.

In this particular case, credibility was not a large issue.

There really -- it was not a substantial issue insofar as what happened, who was telling the truth and who was not.

The principal issue in this case was whether it is more important in selecting section chiefs to rely on individual specific kinds of skills such as the ability to read computer printouts and experience in specific phases of the agency’s work or whether the larger more subjective kinds of skills such as the ability to motivate people are concerned.

Justice Thurgood Marshall: It did not find difficulty with the sex scene, it did not find them because they were the race points so, could credibility not be something in there?

Mr. Lee: Mr. Justice Marshall, if you look carefully at what the examiner concluded with regard to sex, it did not depend in any way on what the witnesses said on the matter of credibility, one having said one thing and one having said another and which was telling truth.

She relied on three considerations all of which were judgment balancing kinds of considerations which can be done as well by a reviewing body as by the one who has heard the evidence.

In conclusion we submit that Congress has made a comprehensive effort to assure equal employment opportunity in the Federal Government.

It is an effort that consists of several interlocking components, including review of equal opportunity, employment opportunity plans, training, upward mobility, affirmative action, adjudication of grievances, complete with full remedial authority that is unparalleled anywhere is either within Government or outside.

The administration of this total integrated whole is charged to the Civil Service Commission already preeminent and unique in its expertise and areas of hiring, training and promotions which are the consistent touchstones of equal opportunity issues.

To wrench from this integrated whole one interlocking component would work serious damage to the careful scheme intended by Congress.

For this reason we respectfully urge that the Court affirm the judgment of the Court of Appeals.

Chief Justice Warren E. Burger: The alternative that your friends are suggesting is that this being trusted to 403 or 425 Federal District Judges who would treat the matter as any other kind -- as any other independent kind of litigation trying it de novo.

Mr. Lee: That is true and that Mr. Chief Justice specifically is the problem, there are 423, we wish there were 473 but there are 423 of them.

None of whom is charged with total unifying responsibility, the only place in the judicial system where that kind of total unifying responsibility could possibly rest is right here in this Court.

By contrast the Civil Service Commission does have the total responsibility.

Thank you.

Justice William H. Rehnquist: Mr. Lee, your opponents also suggest that Congress was not all that convinced that the Civil Service Commission had this high degree of expertise in the field of equal opportunity, in fact that it had been lagging some and that is the reason they had advanced, is there not some indication in the legislative history that that was the feeling of Congress.

Mr. Lee: Surely, and that is totally irrelevant so far as the present issue is concerned.

In fact, it even cuts our way.

The fact is that notwithstanding that concern, Congress said several things, one is that notwithstanding that concern the Civil Service Commission, they did choose the Civil Service Commission and in that respect in order to assist it yet the committee was persuaded that Civil Service Commission’s sincereness, dedication to principles of equal employment.

In order to assist the Commission in accomplishing these goals to make clear the Congressional expectation, it was given responsibilities to function in developing a comprehensive equal employment opportunity program.

The fact of the matter is that notwithstanding those concerns which were thoroughly erred in Congress, it was the total responsibility that was clearly placed in the Civil Service Commission.

And I do not want to give the impression that I do not think that it is working.

You look at the statement by Chairman Hampton.

My friends have indicated the performance of the EEOC with regard to back pay awards.

Well, that is all really that the EEOC can get the through the courts is back pay awards.

But in the Federal sector, far more important than back pay is GS grade, because that relates not only to money it also relates to future status and to other employment considerations that are equally as important as money.

And as that report shows at the same time that federal employment is been going down, we have had a perceptible improvement at all of the GS levels insofar as minorities are concerned.

But the principle point is that whether it is succeeding or not.

If there are statutes -- if the Commission has acted in excess of its statutory responsibility, then that is a basis for complaint in Court.

That is the kind of thing that Courts do well.

If in fact they are saying that Congress made the wrong judgment in giving this kind of responsibility to the Civil Service Commission then the remedy there is in Congress.

But you cannot simply, you cannot simply say that -- you cannot simply make a subjective judgment that the Civil Service Commission has not been doing as well as it ought to do and therefore rejected the judgment that Congress made but this is where the responsibility lies.

Justice Potter Stewart: Mr. Lee, my question is, if I may, throughout your brief you keep -- you emphasize and repeat that the rule that you proposed of review on an administrative record should be the rule in the ordinary case, that it should be the general rule, and you make very explicit that there -- you concede that maybe in our exceptions, exceptions when there has been an inordinate delay in the administrative review and another exception you suggest when a witness has not been amenable to compulsory process because he is not a government employee and you suggest there may be others.

Is this -- do you know of any other situation where the Court has an option of either reviewing something on the administrative record or not.

Mr. Lee: I think, Mr. Justice Stewart in, generally, the review of the record, the review of the administrative record necessarily implies, and I think it has been the consistent practice that the Court has to have a certain discretion.

Now --

Justice Potter Stewart: Is it true in Labor Board cases for example, review by the Courts of Appeals.

Mr. Lee: Well, I would think that if I am --

Justice Potter Stewart: Have you ever heard one where the Court of Appeals took additional evidence.

Mr. Lee: Where the Court of Appeals took --

Justice Potter Stewart: Well, that is the reviewing agency --

Mr. Lee: Yes, I understand.

Justice Potter Stewart: -- of many administrative --

Mr. Lee: Well, rather than sending it back, you mean.

No, I do not.

Of course the Court of Appeals is not quite as well set up to take --

Justice Potter Stewart: Now it is the Court of Appeals that is the reviewing court in most modern, as you well know.

And do you know of any other -- do you know of any analog to what you suggest?

Mr. Lee: No, I do not, but I think that it follows from this kind of statutory, from this kind of statutory structure and that it simply makes sense in the discretion of -- to allow this kind of discretion in the District Court for those two kinds of circumstances.

Justice Potter Stewart: Then you suggest there may be others.

Mr. Lee: There may be.

We cannot but --

Justice Potter Stewart: (Inaudible)

Mr. Lee: Thank you.

Rebuttal of Joel L. Selig

Mr. Joel L. Selig: Mr. Justice Marshall credulity is certainly was an issue in this case and I would direct the Court’s attention to Pages 63 through 67 of the certified administrative record.

These pages are not produced in the Appendix.

It is part of the testimony of the selecting supervisor.

The Civil Service Commission, in affirming the agency decision, repeatedly relied upon the explanations of the selecting supervisor as to why he selected Mr. DeNiro (ph) rather than Mrs. Chandler.

And if you look at the pages that I am citing you to, I think you will see the reason why the complaints examiner at least find no credibility in those explanations.

The Court, of course, had no opportunity to hear Mr. Holland (ph) testify and one of the first acts that petitioner did in District Court was to try to take Mr. Holland’s deposition and I suppose you would have called him as a witness in the District Court.

Now it is also suggested that these cases are so complicated and it is so difficult to distinguish between discrimination and a valid personnel procedure that the courts will not be able to understand these cases and deal with them.

At Page 11 in Footnote 14 of our reply brief, we have cited the case of United States against United States Steel Corporation.

That is a case in which the Government was the plaintiff.

We would commend that the Court’s attention and there are several different opinions in there, that is a case which is extremely complicated and yet the Court was able to deal with it, the lines of progression, the way in which the United States Steel in Birmingham operates, requires a great deal of expertise to even begin to understand what is going on at the United States Steel Corporation.

And yet the Courts have to deal with this kind of thing everyday.

They also have to deal with testing which is extremely complicated.

Now we think it is significant with respect to the question of a hearing that the statute does not require that these cases be determined after a hearing nor is the Commission.

In the draft legislation providing for cease and desist review in the private sector and review on the record on the record in the Court of Appeals, the Committee bill, the Hawkins bill, those draft legislation required that hearings be conducted by the EEOC.

They also contain the stay provision to which counsel referred.

Of course neither the stay provision nor the provision requiring a hearing a hearing in the private sector is contained in the statute as enacted.

And I do not think it is the function of the Court to read things into the statute which are not there particularly when they were there under antecedent draft legislation.

I would like to say --

Justice Potter Stewart: Is my understanding correct that here a complainant has an absolute right to a hearing --

Mr. Joel L. Selig: That is correct.

Justice Potter Stewart: -- in his agency?

Mr. Joel L. Selig: That is correct Your Honor.

Justice Potter Stewart: And only he may waive it?

Mr. Joel L. Selig: That is correct.

Now of course I would like to say something about the middle positions which have been assumed by some of the Courts of Appeals.

Obviously this Court is not bounded by the positions advocated by either party but we feel very strongly that these middle positions are also completely inadequate and we have discussed the reasons for this at some length in our brief.

Indeed we think the Government’s position implicitly recognizes that there is no middle ground in this area either the Court is the finder of fact or the agency is the finder of fact.

Justice Potter Stewart: Now the Government case, if not a middle position, it does not take -- it admits of exceptions to what it -- to the rule that it advocates.

Mr. Joel L. Selig: Very narrow exception, Your Honor I would suggest.

Justice Potter Stewart: But it concedes 54:08 that the rule it advocates maybe inadequate or defective in certain circumstances, is that correct?

Mr. Joel L. Selig: That is correct, but -- and I think the exceptions that they are recognizing are very narrow.

But Mr. Justice Stewart I think the problem -- there are several problems with this middle rules which some of the lower courts have adopted and which are not being advocated by the Government, but one big problem with them is that they put the burden on the wrong party.

They put the burden on the plaintiff to show a need to go beyond the administrative record.

They put a burden on the plaintiff to show that it is necessary to have discovery, that it is necessary to have other witnesses testified.

Well, under the federal Rules of Civil Procedure if discovery is inappropriate, it is the defendant’s burden to show that it is inappropriate under the rules and under the applicable case law.

Chief Justice Warren E. Burger: Now you start from the scratch here as you would be in a civil action in the District Court in its primary jurisdiction, are you?

Mr. Joel L. Selig: Well, you are starting -- well first of all Mr. Chief Justice I do not think it is contended by anyone that the Commission has primary jurisdiction in the normal sense if that word, but I am starting from scratch as far as the complainant having control over the development of his case.

Chief Justice Warren E. Burger: I am suggesting that the plaintiff -- I am suggesting that the complaining party has had a good deal of procedure up to that time?

Mr. Joel L. Selig: Well, as we have said, we assume that the administrative record is admissible.

We also assume that duplication without a purpose can be prevented by the District Court.

But I think the important phrases as Judge Leventhal stated it, duplication without a purpose, sometimes there is a purpose in duplication.

Frequently in antitrust cases, there are large numbers of depositions that have been taken.

This is true in many areas of the law.

I think finally that -- of course it is conceded by the Government as it would have to be conceded in the light of Morton against Mancari that what we are up to here is providing the same substantive law, the same substantive rights in the federal sectors and the private sector.

It is our position basically that you cannot separate substance and procedure in this area.

And this is why we believe the Court noted in Alexander that the choice of forms inevitably affects the scope of the substantive right to be vindicated.

And this is why we believe that the general principle which is applicable here is the principle stated in the House Committee Report and quoted by the Court in Mancari.

And that is that the present law in the proposed statute do not permit industry and labor organizations to be the judges of their own conduct in the area of employment discrimination, and there is no reason why government agencies should not be treated similarly.

Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.