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September 27, 1974

EDMOND SABATINI, Regional Representative of the Social Security Administration and CASPER WEINBERGER, Secretary of the Department of Health, Education and Welfare and COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION and BERNARD ROSEN, Executive Director of the U.S. Civil Service Commission

Bechtle, J.

The opinion of the court was delivered by: BECHTLE


 Plaintiffs have brought this civil rights action on their own behalf and on behalf of all past, present, and future black employees of the Philadelphia Payment Center of the Social Security Administration to redress alleged racially discriminatory employment practices at the Payment Center. *fn1" The complaint, based on Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16, and the Civil Rights Act of 1866, 42 U.S.C. § 1981, seeks back pay, promotion, and other equitable and injunctive relief. This case is presently before the Court on plaintiffs' motion for designation as a class action pursuant to Fed. R. Civ. P. 23(b)(2).

 The motion for class certification raises two critical issues which must be resolved in order for the Court to determine the propriety of this case proceeding as a class action. First, does § 2000e-16(c) of the 1972 Equal Employment Opportunity Act entitle Federal employees to a trial de novo in the Federal District Courts following an adverse administrative determination of the employees' discrimination complaint? Second, may Federal employees properly maintain an independent cause of action under 42 U.S.C. § 1981 to challenge alleged racial discrimination in Federal employment? The Court will examine initially the question of the nature of the hearing provided Federal employees by § 2000e-16(c).

 Plaintiffs Ficklin and Jefferson contend that the pertinent provisions of the Equal Employment Opportunity Act of 1972 must be construed so as to grant Federal employees the right to a full trial de novo of the discrimination claims raised before the employing Federal agency and/or the Civil Service Commission ("Commission"). *fn2" The defendants argue that Federal Court jurisdiction is limited to the traditional review of the administrative record; hence, only those employees who have exhausted the available administrative remedies may properly be before this Court. The question of de novo review must be resolved in the context of the class action motion for, if the jurisdiction of the Federal Courts is limited to review of the administrative record, only those employees who have fully exhausted their administrative remedies may maintain a cause of action in this Court.

 Section 2000e-16(c) provides in relevant part:

"(c) Within thirty days of receipt of notice of final action taken by a department, agency, or unit . . . or by the Civil Service Commission upon an appeal from a decision or order of such department . . . an employee . . ., if aggrieved by the final disposition of his complaint . . . may file a civil action as provided in section 2000e-5 of [the Act], in which civil action the head of the department, agency, or unit, as appropriate, shall be the defendant."

 The resolution of the issue of whether Federal employees are entitled to a trial de novo or a review of the administrative record rests on the interpretation of the phrase "civil action" within the meaning of the 1972 Act.

 The language of the statute provides no clear guidance with respect to the standard of review contemplated by Congress. Hackley v. Johnson, 360 F. Supp. 1247, 1250 (D.D.C. 1973). Further, an analysis of the relevant case law reveals an irreconcilable conflict among the lower Federal Courts as to the construction to be given the statutory language in question here. *fn3" While diversity of opinion does exist regarding the scope of review available to Federal employees challenging alleged discrimination in employment, this Court is convinced that the better reasoned and more sensible view is that taken in Hackley v. Johnson, supra, and those cases decided under the rationale and analysis of the above decision. *fn4"

 In Hackley, two civilian employees of the Department of the Army brought an action claiming discrimination on the basis of race in connection with the employment opportunities afforded them by the Federal Government. Prior to the initiation of suit in the Federal Court, each plaintiff had unsuccessfully pursued his administrative remedies before the employing agency and the Commission. Dissatisfied with the outcome of the administrative hearings, the two employees sought a new trial in the District Court invoking 42 U.S.C. § 2000e-16(c) as the jurisdictional basis. Following a careful review of the legislative history and a detailed analysis of what it considered to be the intent of Congress, the court therein held that the 1972 Act does not require a trial de novo in all cases. 360 F. Supp. at p. 1252. Several factors were cited in the opinion as support for the holding that Federal employees are not entitled to a de novo trial in all instances. Principally, the court relied on the clear Congressional intent to place primary responsibility for the enforcement of employment rights within the Commission, as reflected in the enactment of new regulations, the strengthening of the Commission's enforcement machinery and the development of procedures and programs whereby complaints of discrimination would be expeditiously and impartially resolved by the employing agency and the Commission. 360 F. Supp. at p. 1251. In addition to the expanded role of the Commission, the need for prompt and consistent decisions in discrimination matters, and a common sense interest in the avoidance of duplication of effort provided further support for the court's decision.

 The language of § 2000e-16(c) clearly reveals the legislative intent to invest in the Federal agencies and the Commission primary responsibility for the resolution of employee discrimination complaints. The Commission was given the authority to enforce the statute's proscription of discrimination in Federal employment. Remedial devices such as back pay and reinstatement were authorized as a means to effectuate the policies of the Act. The Commission was directed to issue such rules and regulations as it deems necessary to carry out its responsibilities under the Act. *fn5"

 Pursuant to the statutory provision empowering the Commission to issue appropriate rules and instructions, the Commission promulgated a series of comprehensive regulations found at 5 C.F.R. § 713 (1973). These regulations require the employing agencies to develop affirmative plans to promote equal opportunity, to establish clear-cut procedures for the receipt and resolution of discrimination complaints, and to reexamine the testing and qualification procedures. See, 5 C.F.R. §§ 713.201 - 713.283.

 Furthermore, a trial de novo in all cases would be entirely inconsistent with Congress' desire for prompt and consistent decisions in matters concerning employment discrimination. Handy v. Gayler, 364 F. Supp. 676 (D. Md. 1973). A wholly new trial would perforce require a considerable duplication of effort and expense. The traditional review of an administrative record will obviate a duplication of evidence while at the same time insuring judicial scrutiny of the administrative processes. In order to achieve expedient and consistent determination of employee complaints, Congress permitted dissatisfied employees to appeal from an adverse decision of the agency to either the Commission or the Federal Courts. The end result of de novo trials would not be the expeditious ...

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