Allison v. United States, 507-69.

Citation451 F.2d 1035,196 Ct. Cl. 263
Decision Date15 October 1971
Docket NumberNo. 507-69.,507-69.
PartiesMelvin ALLISON et al., v. The UNITED STATES.
CourtCourt of Federal Claims

Paul J. Tagliabue, Washington, D. C., for plaintiffs. Monroe H. Freedman, Washington, D. C., attorney of record for plaintiffs. John C. Roberts and Ralph J. Temple, Washington, D. C., of counsel.

LeRoy Southmayd, Jr., Washington, D. C., with whom was Asst. Atty. Gen. L. Patrick Gray, III, for defendant.




This is a back pay case with jurisdiction asserted under 28 U.S.C. § 1491, which provides as follows:

The Court of Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, * * *.
* * * * * *

Plaintiffs are 15 Negro wage board employees in the Grounds Maintenance and Landscaping Unit at the National Institutes of Health (NIH). They allege that they have been denied promotions because of racial discrimination and ask the court to award them back pay for promotions at the rate of one grade a year since January, 1965. That is the time plaintiffs says that NIH officials should have acted on their complaints under the applicable regulations.

This suit is brought under Executive Order No. 11246, 30 Fed.Reg. 12319 (1965), (now E.O. 11478, 34 Fed.Reg. 12985 (1969)) and the departmental regulations thereunder; as well as the Back Pay Act of 1966, 5 U.S.C. § 5596 (Supp. V, 1965-1969). Since we have decided today in Chambers v. United States, Ct. Cl., 451 F.2d 1045 (1971), that the Executive Orders cited provide authority for awarding back pay in racial discrimination cases, we need not consider whether the Back Pay Act also provides such a remedy.

This case had its beginning in November, 1964, when some of the plaintiffs here filed administrative complaints charging racial discrimination in employment in the Grounds Maintenance and Landscaping Unit at NIH. Eventually these complaints produced an investigation by the Deputy Equal Employment Opportunity Officer for the Public Health Service. The investigative report, issued on June 21, 1967, contains the following conclusions:

A. The investigation produced statistical evidence to support the allegation that Negro employees in Grounds Maintenance are not promoted above the WB-5 level. The concentration of Negro employees at WB-2, WB-3, WB-4 and WB-5 is disproportionately high and tends to sustain the allegation.
B. The allegations that Negro employees are restricted to lower paying jobs and are denied supervisory status is sustained.
* * * * * *
D. The allegation that white employees are promoted over Negroes of comparable experience and qualification is supported.
* * * * * *

Paragraph III of the report contained the decision:

* * * * * *
B. The disproportionate concentration of Negro employees at grade levels WB-2, WB-3, WB-4 and WB-5 shall be reviewed by management and personnel officials to determine those instances where promotions are in order and may have been improperly withheld.
* * * * * *
F. It is directed that this unit shall have the assistance of appropriate management and personnel officials in the establishment of, and adherence to, an effective merit promotion system; that standards be developed which will reflect the significance of seniority, training and related factors in the promotion process.
G. The proposal by complainants for the mass promotion of Negro employees is denied as inconsistent with Executive Order 11246. Promotions which are merited will be accomplished in accordance with III B above.

Plaintiffs were not satisfied with the action contemplated by this decision and appealed further to the HEW Equal Employment Opportunity Officer, and were granted a hearing. By decision dated December 10, 1968, the Director, Equal Opportunity Staff, upheld the finding of discrimination and affirmed the remedial action directed by the prior decision. However, no action was taken on the plaintiffs' claims for back pay pending instructions from the Civil Service Commission (CSC).

The Chairman of the Civil Service Commission submitted to the Comptroller General, the question whether the CSC had the authority to order back pay awards and retroactive promotions "when the fact of discrimination is established and evidences that the denial of past advancement was improper". By decision B-165571, dated July 18, 1969, (unpublished) the Comptroller General advised:

With regard to your specific questions the decision B-158925, July 16, 1968, involved former employees who had a statutory right to be reinstated subsequent to their military service. We held that back pay under 5 U.S.C. 5596 could be awarded upon compliance with the requirements of the statute because the refusal to reemploy the employees in violation of a statutory right was an "action" which results in the withdrawal of pay the individual would otherwise receive. We do not feel that the rule in that case may be expanded to cover the cases here in question. The employees, while having a right not to be discriminated against, did not have an absolute entitlement to promotion at a specific time. As indicated in the decision of today to the Secretary of Housing and Urban Development, we do not find any authority in law to award back pay to employees for the periods that promotions are improperly delayed as the result of discrimination or for some other unjustified or unwarranted reason. Further, administrative errors which justify a retroactively effective personnel action are clerical or administrative errors which alter the specific intent of the official responsible for the action. 46 Comp.Gen. 595, 597. We find no evidence in the materials submitted with your letter than an administrative error of that type was involved in the cases in question.

The decision of the CSC Board of Appeals and Review, based on the opinion of the Comptroller General, was "that the corrective actions requested by the appellants cannot be taken by the Board". Following denial of their claims by the BAR, plaintiffs brought suit in this court and moved for summary judgment. Defendant cross moves for that relief. Plaintiff says "an Executive agency (HEW) has expressly found that plaintiffs were entitled to promotions, that they would have had promotions but for the racial discrimination against them, and that they should receive back pay if that is available under the law".

Of course, that is not precisely what the administrative decision said. The HEW decision affirmed the finding, which has been referred to in various parts of the record (though not in the decision itself) as a "pattern of racial discrimination" existing "over a period of several years" in the section in which plaintiffs are employed. The decision of the Director, EEO Staff, recounted the demands of plaintiffs for immediate promotions and generally preferential treatment for Negro employees to compensate for past inequities and observed:

* * *. In our opinion, even this solution would not constitute complete recovery whether in terms of financial loss, employee morale, or the irreversible damage to the whole person.
This reviewer may assume arguendo that several, if not all, of the complainants were denied promotional opportunities on racial grounds. However, to effect mass promotions on basis of seniority alone without regard to merit and work qualification is unprecedented within the context of the equal opportunity provisions. Such an approach, however appealing, would appear to run a collision course with the prevailing concept and operation of the Federal Merit Promotion System * *

This indicates a great deal of sympathy for the plight of these plaintiffs and a willingness to go as far as the law allows in attempting to make up for past injustices. It is not a finding that "plaintiffs were entitled to promotions, that they would have had promotions but for discrimination". The decision of the BAR in analyzing the back pay request, had this to say:

The request that each Negro employee of the Section who has remained in the same grade for one year or more be promoted one, two or three grades, depending on the length of time he has served in that grade level, to have any merit, presupposes a situation in which each white employee of the Section has been promoted a grade a year, irrespective of performance or qualifications. A study of the employment history of all of the employees in the Section in February of 1968 who initially entered on duty in the Section in grades WB-2 and WB-3 reveals conclusively that neither white employees, nor Negro employees, have advanced a grade a year. The Board finds no merit in this request.

This case then, is not like Chambers, ante at p. 1049 where we were:

* * * confronted with a situation where defendant admits that it discriminated against the plaintiff because of race and but for that discrimination she would have been employed at a particular grade and salary on March 17, 1967. * * *

All discretionary decisions had been made administratively and the only question before us was whether, in the circumstances, E.O. 11478 provided a legal basis for awarding back pay. We held that it did. That remedy is available for these plaintiffs only if they can present us with a case like that of Mrs. Chambers.

Defendant does not deny discrimination in gross. Yet all we know by the administrative findings is that some unspecified individuals among the plaintiffs, but possibly not all of them, would have been promoted, but for discrimination, at unspecified times, if qualified, if vacancies at higher levels, unknown to us, had existed, and if appropriated funds had been available. We take judicial notice, for instance, that shortage of funds may halt...

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14 cases
  • Chambers v. United States
    • United States
    • Court of Federal Claims
    • October 15, 1971
    ...entitled to the only remedy this court is authorized to give, a money judgment. Plaintiffs in the companion case of Allison v. United States, Ct.Cl., 451 F.2d 1035 (1971), decided today, have called our attention to Comp.Gen. B-165571, 50 Comp.Gen. ___ (decided February 19, 1971), upholding......
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