Sperling v. U.S., 74-1533

Citation515 F.2d 465
Decision Date02 May 1975
Docket NumberNo. 74-1533,74-1533
Parties10 Fair Empl.Prac.Cas. 654, 9 Empl. Prac. Dec. P 10,100 Anton E. SPERLING, Appellant, v. UNITED STATES of America et al., Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Joseph Meehan, Long Branch, N. J., for appellant.

Jonathan L. Goldstein, U. S. Atty., John J. Barry, George E. Mittelholzer, Asst. U. S. Attys., Newark, N. J., for appellees.

Before VAN DUSEN, GIBBONS and HUNTER, Circuit Judges.

OPINION OF THE COURT

GIBBONS, Circuit Judge.

This appeal, involving a claim of job discrimination by the federal government The Act mandates that all personnel actions affecting employment in the federal government are to be free from discrimination based on race, color, religion, sex, or national origin, 1 and provides the Civil Service Commission with broad remedial authority to insure that this explicit mandate will be carried out. The Act designates the Civil Service Commission as the administrative agency to review the claims of aggrieved federal employees or applicants for federal employment. 2 Recognizing that private sector employees dissatisfied with the fact-finding or the conciliation procedures of the Equal Employment Opportunity Commission (EEOC) in Title VII actions are authorized to press their claims in the federal district courts, 42 U.S.C. § 2000e-5(f)-(k), the Act also provides a civil remedy in the district courts to federal employees dissatisfied with Civil Service Commission (CSC) review of their claims. 3

brings before us for the first time important questions concerning the proper construction and application of the civil remedy afforded to federal employees in the district courts by § 717(c) of the Equal Employment Opportunity Act of 1972, Pub.L.No.92-261, 86 Stat. 111, 42 U.S.C. § 2000e-16(c), amending Title VII of the Civil Rights Act of 1964, Pub.L.No.88-352, 78 Stat. 255, 42 U.S.C. § 2000e et seq.

Appellant Anton E. Sperling, a career employee in federal service filed suit in the district court pursuant to § 717(c). He appeals here from an order of the district court which granted the government's motion for summary judgment. Sperling had been employed as a civilian writer by the United States Army Electronics Command at Fort Monmouth, New Jersey (ECOM) since 1957. At ECOM, Sperling served as Executive Vice-President of Lodge 1904 of the American Federation of Government Employees (AFL-CIO), and as the union's grievance representative in Equal Employment Opportunity proceedings at the Fort. In that capacity, Sperling, a white man, represented a black ECOM employee in a series of discrimination grievance proceedings from 1965 through 1967. Sperling claims that he was denied a promotion to a GS-13 position in November, 1968, in retaliation for his successful representation, as union grievance delegate, of the black ECOM employee. Sperling pressed his own claim through the administrative process by Sperling's amended complaint joins as defendants the Secretary of the Army, civilian and military personnel employed by the Department of the Army, the Commissioners of the United States Civil Service Commission, and the United States. The principal relief sought is a retroactive promotion to a GS-13 employment level together with back pay, and all other attendant rights and benefits for that level from December, 1968. Sperling also seeks an award of counsel fees.

filing a series of five complaints between March, 1968 and October, 1969, culminating in an adverse decision by the Board of Appeals and Review of the United States Civil Service Commission on July 15, 1972. On August 15, 1972 he filed suit in district court.

Jurisdiction before the district court was alleged pursuant to the Federal question statute, 28 U.S.C. § 1331; the Civil Rights Act, 28 U.S.C. § 1343; the Tucker Act, 28 U.S.C. § 1346(a)(2); the Mandamus Statute, 28 U.S.C. § 1361; the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202; the Administrative Procedure Act, 5 U.S.C. § 702; the Back Pay Act, 5 U.S.C. § 5596; and the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16.

On August 20, 1973, the government moved to dismiss Sperling's complaint for failure to state a claim upon which relief could be granted, and, alternatively, moved for summary judgment. Sperling opposed the government's motions, and on October 16, 1973, filed a cross-motion for summary judgment. Sperling's position, both before the district court and on appeal, is that the administrative record leaves no fact issue as to a showing of the government's discrimination against him, and hence entitlement to relief. If, however, this court concludes that there is a fact issue as to discrimination, Sperling's position is that he is entitled to a de novo hearing in the district court on that issue. In the alternative, he is agreeable to having the determination made on the administrative agency record without an additional evidentiary hearing. The government's position before the district court, and on appeal, is (1) that the decision of the Board of Appeals of the Civil Service Commission is final; or (2) that if there is any judicial review it is limited to a determination that administrative due process had been afforded; or (3) that if any factual review is permitted it is limited to determining whether substantial evidence in the administrative record as a whole supports the Commission's findings.

The district court concluded that it had jurisdiction under the Tucker Act, but that the scope of judicial review available under that jurisdictional grant was limited to determining whether substantial evidence supported the Commission's findings. 4 Alternatively, it held that if the suit was cognizable under § 717(c) of the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16(c), which the government disputed, its scope of review was limited to determining whether administrative due process was afforded by the agency. 5

THE 1972 ACT

The Equal Employment Opportunity Act of 1972, Pub.L.No.92-261, extensively revised the employment discrimination provisions of Title VII of the Civil Rights Act of 1964. 6 The 1972 Act added a new § 717 to Title VII making it clear that the federal government is obligated to insure that all personnel actions be free from discrimination based on race, color, religion, sex or national origin, § 717(a); vesting in the United States Civil Service Commission the authority to enforce these prohibitions by appropriate remedies and through its rule-making power, § 717(b); and affording to persons aggrieved, a civil remedy in the district courts, § 717(c). 7 The interrelationship of § 717 with existing remedies for public and private employment discrimination, the cross-reference in § 717(d) to other provisions in Title VII, 8 and the legislative compromises in Congress which resulted in the present language, coincide to produce an unusually difficult complex of problems in statutory interpretation.

An appropriate starting point is the framework of Title VII of the Civil Rights Act of 1964. As enacted, Title VII did not extend to employment in the federal government, 9 but rather afforded a civil remedy in the district courts to victims of discrimination in the private sector once conciliation of their claims had been sought with the Equal Employment Opportunity Commission (EEOC). 10 However, the EEOC was given no authority to seek judicial enforcement of these conciliation agreements. Absent some means of enforcement, the EEOC, in the eyes of many members of Congress, failed even to come close to achieving the Act's goal of eliminating employment discrimination in the private sector. Those Congressmen advocating a strengthened EEOC pressed for a cease and desist enforcement authority to be vested in the Commission. However, out of compromise, the 1972 Act amending Title VII authorized only judicial enforcement of EEOC orders, 11 while preserving the existing civil remedy for an aggrieved private sector employee in the district court. 12

Congress, in considering the amendment of Title VII, was also concerned with discrimination in public employment. Although Title VII of the 1964 Act had not been extended to federal employees, a number of other statutory provisions, 13 Executive Orders, 14 and Civil While the House was considering H.R. 1746, the Senate Committee on Labor and Public Welfare was considering S. 2515, a bill addressed to the same issues. The Senate Report accompanying that bill, while recognizing that progress had been less than satisfactory, was more sanguine about what might be expected from the Civil Service Commission, and proposed to continue the antidiscrimination responsibility vested in the Commission by Executive Order 11478. 23 Despite their differences, however, the Senate Committee on Labor and Public Welfare, and the House Committee on Education and Labor were of like mind about the need for making a civil remedy in the courts available to federal employees who were dissatisfied with administrative review of their claims. 24 The provisions of § 717 with respect to the civil remedy as adopted in the final House and Senate versions are set forth in the margin. 25

                Service Commission regulations, 15 all of which were in force by 1972, had already prohibited discrimination in such employment on account of race, color, religion, sex or national origin.  There was, moreover, a longstanding back pay remedy available to federal workers.  16 Despite these provisions, the House Committee charged with the responsibility of preparing a revision of Title VII concluded that progress in eliminating discrimination in federal employment had been "far from satisfactory."  17  It attributed such lack of progress to structural defects in the procedures which the government regulations established for processing complaints, 18 and to a lack of confidence on the part of federal
...

To continue reading

Request your trial
51 cases
  • Henry v. Schlesinger
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • January 7, 1976
    ...final action or decision to the Civil Service Commission. See, 42 U.S.C. § 2000e-16(c); Ettinger, supra, 518 F.2d at 651-652 citing Sperling, supra. Therefore, said employee runs afoul of the exhaustion doctrine6 only if he failed either to bring his complaint to the attention of the EEO co......
  • Miller v. United States
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • October 11, 1977
    ...Title VII of the 1964 Civil Rights Act (Chandler v. Roudebush, 425 U.S. 840, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976); Sperling v. United States, 515 F.2d 465 (3d Cir. 1975), cert. denied, 426 U.S. 919, 96 S.Ct. 2623, 49 L.Ed.2d 372 (1976)), a suit for dismissal from government employment is no......
  • Roberts v. Western Airlines
    • United States
    • U.S. District Court — Northern District of California
    • October 12, 1976
    ...enable the Commission to enforce compliance with its decisions. H.Rep.No. 92-238, 92d Cong., 1st Sess. 1 (1971); Sperling v. United States, 515 F.2d 465, 469-473 (3 Cir. 1975), cert. denied, 426 U.S. 919 96 S.Ct. 2623, 49 L.Ed.2d 372 (1976). Senator Javits introduced what was to become § 14......
  • Hackley v. Roudebush
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • September 29, 1975
    ...F.2d 1323 (1975); Womack v. Lynn, 164 U.S.App.D.C. ---, 504 F.2d 267, 269 & nn. 4, 6 (1974). See also, e. g., Sperling v. United States, 515 F.2d 465 at 474-475 (3d Cir. 1975); Koger v. Ball, 497 F.2d 702 (4th Cir. 1974).5 Hackley v. Johnson, 360 F.Supp. 1247 (D.D.C.1973).6 It is not totall......
  • Request a trial to view additional results
1 books & journal articles
  • Race and national origin discrimination
    • United States
    • James Publishing Practical Law Books Federal Employment Jury Instructions - Volume I
    • April 30, 2014
    ...based upon interracial association. Woods v. Bentsen , 889 F. Supp. 179 (E.D. Pa. 1995); see also Sperling v. United States , 515 F.2d 465 (3d Cir. 1975), cert. denied , 426 U.S. 919 (1976) (holding that Title VII applied to claim by white employee that he suffered racial discrimination in ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT