resort to the District Court would require a trial on the merits since there would be no administrative record to review.
This court has previously held in ETTINGER v. JOHNSON, Civil Action No. 73-702, opinion filed August 20, 1974, that the Equal Employment Opportunity Act of 1972 does not grant the right to a full trial de novo to federal employees. The position of this court on the issue has been reinforced by the excellent and scholarly opinion of Judge Gasch, POINTER v. SAMPSON, 62 F.R.D. 689 (U.S.D.C. 1974).
The recent case, ALEXANDER v. GARDNER-DENVER CO., 415 U.S. 36, 94 S. Ct. 1011, 39 L. Ed. 2d 147 (1974), relied on by plaintiff is not in point. In that case, a private employer and not a governmental agency was involved. The issue involved was whether the plaintiff was entitled to a trial de novo in the Federal District Court with respect to a private employer. The portions of the Civil Rights Act referred to by the court were those relating to the precise issue involved. General language relied upon by the plaintiff taken out of context, must be interpreted in the light of the precise problem before the court. Consequently, there is nothing in this case to indicate what the decision would be, had a governmental agency been involved. Accordingly, this court does not agree with the court in CORREATHERS v. ALEXANDER, 7 EPD P 9379 (D. Colo.) filed April 24, 1974, which relied upon the ALEXANDER case, in finding that there was a right to a trial de novo.
Contemporary case law also establishes that a plaintiff, by deciding not to have an administrative hearing, does not thereby require the court to allow a hearing de novo. THOMPSON v. UNITED STATES DEPT. OF JUSTICE, 7 EPD P 9209; BERNARDI v. BUTZ, 7 EPD P 9381 (N.D. Cal. 1974).
It has been held that the limited review afforded by Congress is the review accorded previously in more limited categories of personnel decisions. EUSTACE v. DAY, 114 U.S. App. D.C. 242, 314 F.2d 247 (1962) and IRVING POLCOVER v. SECTY. TREASURER, 477 F.2d 1223, 155 U.S. App. D.C. 338 (1973). Accordingly, COOPER-SMITH v. JOHNSON, 7 EPD P 9388 (D.D.C. 1974); SALONE v. UNITED STATES, 7 EPD P 9376 (W.D. Okla. 1974); CHANDLER v. JOHNSON, 7 EPD P 9139 (C.D. Cal. 1973); BERNARDI v. BUTZ, supra, all hold that the scope of court review is limited to a review of the administrative record. As stated in a leading case:
"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." Hackley v. Johnson, supra., at page 1252.