Petition — Bostick v. Boorstin

@upreme Court, UU. ~

FILED

JUN 23 1980

IN THE ICHAEL RODAK, JR., CLERW

Supreme Court of the United States

OCTOBER TERM, 1979

“.29= 2080

ROBERT L. BOSTICK, ET AL., Petitioners,

Vv.

DANIEL J. BoorsTIN, As the Librarian for the Library of

Congress, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

JERRY S. COHEN

HERBERT E. MILSTEIN

MICHAEL D. HAUSFELD

KOHN, MILSTEIN & COHEN

1776 K Street, N.W.

Washington, D.C. 20006

Attorneys for Petitioners

Of Counsel:

HAROLD E. KOHN

KOHN, SAVETT, MARION &

Graf, P.C.

1214 IVB Building

1700 Market Street

Philadelphia, Pennsylvania

19103

ATES MELE NIRA SARIN

PRESS OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D.C.

Oooo

TABLE OF CONTENTS

PAGE

SPR UNIO Gc hchv kta dc nae v0 edo ts on eke eeES ENE 2

NE. a asda en een ws ae kn ee oe Cesk Ce 2

CED TROD i icin decks annss tee cestamwenuees 2

STATUTORY PROVISIONS INVOLVED ............2eee eee: 3

eT GP TO CRs oik ki cakes sc bet cedbansieuas 6

REASONS FOR GRANTING THE WRIT..........0...-20 000: 10

I.

Il.

III.

On an Important Question of Federal Law, the

Decision of the District of Columbia Circuit

Court of Appeals is in Direct Conflict with the

Decisions of Other Circuits ..............0000-

The District Court’s Refusal to Grant Class

Relief in Light of Admitted Systemic Discrimi-

nation Violates the Purpose and Intent of Title

on and is in Conflict with the Law of Other

| eT eee Te reer Trees eee ee

The Lower Courts’ Misapplication of the Rele-

vant Statistical and Graphic Analyses Demon-

strating Statistically Significant Disparities Bet-

ween Black and Non-Black a At-

tributable to Race is a Substantial Error Re-

quiring Review and Guidance by this Court....

SIE Fok hick bak vc ck Sen Cee

Dt ee et ee ea eee.

10

14

19

TABLE OF AUTHORITIES

CASES PAGE

Albemarle Paper Co. v. Moody, 422 U.S. 1008 (1975) .. 17

Alexander v. Aero Lodge No. 735, 565 F.2.d 1364 (6th

Le Big) bcc eas Wah s 4) ones 6% 11

Barnett v. Martin-Marietta Corp., 522 F.2d 333 (10th

ee ees Wiles boi ies bear hewe wee s+ 18

Bolton v. Murray Envelope Corporation, 553 F.2d 881

ech POG, aka g esk6 essa eee ae Kes 18

Donaldson v. Pillsbury Co., 554 F.2d 825 (8th Cir. 1977) 12

Gibson v. Local 40, 543 F.2d 1259 (9th Cir. 1976) .... 12, 18

Hazelwood School District v. United States, 433 U.S.

ee teh Feb eee ee pe

Fiuff v. N.D. Cass Company of Alabama, 4 E.P.D.

4 7833 (N.D. Ala. 1971), reversed, 485 F.2d 710

re 10, 19

International Brotherhood of Teamsters v. United

EE EE, OP EEDTED ccc scrccccccctsceces 17, 22

James v. Stockham Valves and Fittings Co., 559 F.2d

rd a a s:esn b Av'a beso 0s 0% Oss 18, 19

Morton v. Mancari, 417 U.S. 535 (1974). ............ 13, 14

Parham v. Southwestern Bell Telephone Co., 433 F.2d

a eS ck a's pr k ovo ews bd on bie 17, 18

Payne v. Travenol Laboratories, 565 F.2d 895 (5th Cir.

a hic s sap cada ck eer evseasaess 11

Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir.),

cert. denied, 404 U.S. 1006 (1971) ................ 17

Rosen v. Public Service Electric and Gas Company, 477

EE OPEN, vs vows cdasccvcccscesecces 17

Saracini v. Missouri Pacific Railroad Co., 431 F.Supp.

SE 16, 18

Senter v. General Motors Corp., 532 F.2d 511 (6th Cir.

ee Lo con sb ne ieee wads onev os 11

iii

Table of Authorities Continued

CASES: PAGE

Sledge v. J.P. Stevens & Co., Inc., 585 F.2d 625 (4th

Ferre rreet rrr eer eee 18

Sprogis v. United Air Lines, Inc., 444 F.2d 1194 (7th

a -, . See perenne ee reer irre frase 15, 16

Williams v. Mumford, 6 E.P.D. 48785 (D.C. 1973}... 10, 11

Williams v. Tennessee Valley Authority, 552 F.2d 691

Le a ig, errr Tr erererrrrrrc etree 14

Wright v. Stone Container Corp., 524 F.2d 1058 (8th

eR ee rr rery Pre tees fete r 11, 12

STATUTES AND RULES CITED:

p ER Cae Bo DS ree ee eer eee ro 2

rv ate Don & °. |) Pr ereererererer er errr 17

42 U.S.C. ZOOOG(C)-16 .. 0. cece ec ee eevee 3, 4,5, 6 7, 13

iV

INDEX TO APPENDIX

First District Court Decision, dated August 17, 1973.... la

First Court of Appeals Decision, dated February 10,

PPO cd chs rk rela ees LAW oee ee eM kaek bale 10a

i FOE On ene aE A A Ee 26a

Second Court of Appeals Decision, dated February 22,

Ps nies bc dns s naa w RSA ee CADET Rees wae cies 45a

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

No.

ROBERT L. BOSTICK, ET AL., Petitioners,

Vv.

DANIEL J. BoorsTIN, As the Librarian for the Library of

Congress, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

Petitioners Robert L. Bostick, et al. respectfully

pray that a Writ of Certiorari issue to review the judg-

ment and opinion of the United States Court of Appeals

for the District of Columbia Circuit entered in this pro-

ceeding on February 22, 1980, and the Orders denying

Petitioners’ Motion for Rehearing and Suggestion for

Rehearing en banc entered on March 24, 1980.

2

OPINIONS BELOW

The initial decision of the district court (App. 1a)

was entered on August 20, 1973 and is reported at 6

E.P.D. 48785. The initial Court of Appeals decision

(App. 10a) dismissing an interlocutory appeal from the

District Court Decision, is reported at 511 F.2d 363

(D.C. Cir. 1975). This Court denied certiorari, 423 U.S.

828 (1975). The most recent district court decision (App.

26a) is unreported. The most recent Court of Appeals

decision (App. 45a) is reported at 22 E.P.D. 430,682.

JURISDICTION

The judgment of the Court of Appeals for the

District of Columbia Circuit was entered on February

22, 1980. A timely Petition for Rehearing and Sugges-

tion for Rehearing en banc was denied on March 24,

1980, and this Petition for Certiorari was filed within

ninety (90) days of that date. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Whether the typicality requirement of Fed. R.

Civ. P. 23 can be interpreted to require factual identity

of the claims of all class members in a Title VII employ-

ment discrimination case?

2. Whether a class action is a superior method of

adjudicating claims of systemic discrimination by

Federal employees?

3. Whether the lower courts erred by failing to con-

sider fashioning class relief in light of unrefuted

evidence of racially motivated employment discrimina-

tion against the class, even though the ‘‘class represen-

3

tative’’ did not prevail on his individual claim and the

court did not certify a class?

4. Whether the lower courts erred by misinter-

preting and misapplying the statistical and graphic

evidence establishing a statistically significant disparity

between the annual salaries and grade levels of similarly

situated black and non-black employees attributable to

race?

STATUTORY PROVISIONS INVOLVED

Rule 23(a) reads:

(a) Prerequisites to a Class Action. One or more

members of a class may sue or be sued as represen-

tative parties on behalf of all only if (1) the class is

sO numerous that joinder of all members is imprac-

ticable, (2) there are questions of law or fact com-

mon to the class, (3) the claims or defenses of the

representative parties are typical of the claims or

defenses of the class, and (4) the representative par-

ties will fairly and adequately protect the interests

of the class.

Rule 23(b)(3) reads:

Class Actions Maintainable. An action may be

maintained as a class action if the prerequisites of

subdivision (a) are satisfied, and in addition:

* * *

(3) the court finds that the questions of law or

fact common to the members of the class

predominate over any questions affecting only in-

dividual members, and that a class action is

superior to other available methods for the fair and

efficient adjudication of the controversy.

42 U.S.C. § 2000e-16 provides:

(a) All personnel actions affecting employees or

applicants for employment (except with regard to

4

aliens employed outside the limits of the United

States) in military departments as defined in section

102 of Title 5, in executive agencies (other than the

General Accounting Office) as defined in section

105 of Title 5 (including employees and applicants

for employment who are paid from _ nonap-

propriated funds), in the United States Postal Ser-

vice and the Postal Rate Commission, in those units

of the Government of the District of Columbia hav-

ing positions in the competitive service, and in those

units of the legislative and judicial branches of the

Federal Government having positions in the com-

petitive service, and in the Library of Congress shall

be made free from any discrimination based on

race, color, religion, sex, or national origin.

(b) Except as otherwise provided in this subsec-

tion, the Civil Service Commission shall have

authority to enforce the provisions of subsection (a)

of this section through appropriate remedies, in-

cluding reinstatement or hiring of employees with

or without back pay, as will effectuate the policies

of this section, and shall issue such rules, regula-

tions, orders and instructions as it deems necessary

and appropriate to carry out its responsibilities

under this section. The Civil Service Commission

shall —

(1) be responsible for the annual review and

approval of a national and regional equal

employment opportunity plan which each

department and agency and each appropriate

unit referred to in subsection (a) of this section

shall submit an order to maintain an affir-

mative program of equal employment oppor-

tunity for all such employees and applicants for

employment:

(2) be responsible for the review and evalua-

tion of the operation of all agency equal

employment opportunity programs, periodically

5

obtaining and publishing (on at least a semian-

nual basis) progress reports from each such

department, agency, or unit; and

(3) consult with and solicit the recommenda-

tions of interested individuals, groups, and

Organizations relating to equal employment op-

portunity.

The head of each such department, agency, or unit

shall comply with such rules, regulations, orders,

and instructions which shall include a provision that

an employee or applicant for employment shall be

notified of any final action taken on any complaint

of discrimination filed by him thereunder. The plan

submitted by each department, agency, and unit

shall include, but not be limited to —

(1) provision for the establishment of train-

ing and education programs designed to pro-

vide a maximum opportunity for employees to

advance so as to perform at their highest

potential; and

(2) a description of the qualifications in

terms of training and experience relating to

equal employment opportunity for the principal

and operating officials of each such depart-

ment, agency, or unit responsible for carrying

out the equal employment opportunity program

and of the allocation of personnel and

resources proposed by such department, agen-

cy, Or unit to carry out its equal employment

opportunity program.

With respect to employment in the Library of Con-

gress, authorities granted in this subsection to the

Civil Service Commission shall be exercised by the

Librarian of Congress.

(c) Within thirty days of receipt of notice of final

action taken by a department, agency, or unit refer-

red to in subsection (a) of this section, or by the

6

Civil Service Commission upon an appeal from a

decision or order of such department, agency, or

unit on a complaint of discrimination based on

race, color, religion, sex or national origin, brought

pursuant to subsection (a) of this section, Executive

Order 11478 or any succeeding Executive orders, or

after one hundred and eighty days from the filing

of the initial charge with the department, agency, or

unit or with the Civil Service Commission on appeal

from a decision or order of such department, agen-

cy, or unit until such time as final action may be

taken by a department, agency, or unit, an

employee or applicant for employment, if aggrieved

by the final disposition of his complaint, or by the

failure to take final action on his complaint, may

file a civil action as provided in section 2000e-5 of

this title, in which civil action the head of the

department, agency, or unit, as appropriate, shall

be the defendant.

(d) The provisions of section 2000e-5(f) through

(k) of this title, as applicable, shall govern civil ac-

tions brought hereunder.

(e) Nothing contained in this Act shall relieve any

Government agency or official of its or his primary

responsibility to assure non-discrimination § in

employment as required by the Constitution and

statutes or of its or his responsibilities under Ex-

ecutive Order 11478 relating to equal employment

opportunity in the Federal Government.

STATEMENT OF THE CASE

Petitioner Bostick is a black employee of the

Library of Congress. On or about April 29, 1972,

Bostick filed a formal Complaint alleging discrimination

with the Equal Employment Opportunity (EEO) Office

of the Library of Congress. He claimed that from the

time he began his employment with the Library in 1947

he had been subject to racial discrimination with regard

7

to his job classification and promotion. Four months

later he amended his Complaint and alleged discrimina-

tion affecting all other black employees of the Library.

In November 1972 the EEO Office returned the Amend-

ed Complaint, stating that it was not equipped to handle

broad inquiries into the general policies and practices of

the Library.

In August 1972, another black Library employee,

Joslyn Williams, filed an action in the district court,

alleging that he was the victim of racially discriminatory

practices at the Library. On March 20, 1973, an Amend-

ed Complaint was filed, adding Bostick as a plaintiff as

well as class-wide allegations of discrimination. The

Amended Complaint alleged that the Library had

discrininated against all blacks currently employed by it,

all blacks who had been employed at any time since

1960, and all blacks who had sought employment unsuc-

cessfully since 1960. The Amended Complaint sought

relief on behalf of the individuals and both injunctive

and monetary relief for the class as a whole.

On August 20, 1973, after a hearing, the district

court denied the request for class certification. The

denial was based on two grounds: First, that Williams’

and Bostick’s positions at the Library were not typical

of the class they sought to represent as required by Rule

23(a)(3), Federal Rules of Civil Procedure. Second,

given the administrative remedies available to federal

employees apart from Title VII of the Civil Rights Act

of 1964, as amended by the Equal Employment Oppor-

tunity Act of 1972, 42 U.S.C. § 2000e-16, the class ac-

tion was not ‘‘superior to other available methods for

fair and efficient adjudication of the controvery’’ as re-

quired by Fed.R.Civ.P. 23(b)(3). Petitioners attempted

to obtain review of the district court’s decision, but it

8

was denied, on the grounds that the decision was not a

final order.

In March 1978, Bostick’s case went to trial. The

district court failed to award either individual or class

relief, despite the fact that the unrefuted testimony in-

dicated that from 1947 through at least 1972 the Library

had engaged in numerous illegal, discriminatory prac-

tices including among others: the failure and refusal to

recruit black applicants; the promotion of white

employees through word-of-mouth procedures; the de-

meaning of individual black employees; the refusal to

place blacks in positions of responsibility; the placement

of blacks with higher educational qualifications in the

same positions as whites with lower educational

qualifications and the promotion of white employees

with lower educational qualifications to higher positions

than blacks who possessed higher educational.

Black employees of the Library as of 1972 were oc-

cupying lower grades and receiving lower salaries than

similarly situated white employees and this significant

difference was attributable to race, as the Library’s own

Statistician concluded. The evidence of racial discrimina-

tion which resulted in pay and grade disparities between

blacks and whites was corroborated by the Library’s

own studies. When the Library itself analyzed the pay

and grade levels of its employees, it concluded that there

was a Clear relationship between race and grade: blacks

were on the average two grades below whites, with com-

mensurately lower salaries.

The Library’s Administrative Hearing Examiners

each independently concluded that the Library had

engaged in systemic racial discrimination after 1972. The

Report issued by the Special Inquiry Team of the

American Library Association indicated that the Library

had consistently restricted the employment opportunities

of blacks. The numerous reports which the Library itself

requested after 1972 found, without qualification, that

the Library had employed, before and afater 1972,

racially discriminatory written examinations for pur-

poses of hiring and promotions. The Library utilized re-

quirements which had a racially disparate effect, as

shown by the racial mix of those ultimately selected for

hire or promotion before and after 1972; and the

Library utilized, before and after 1972, non-objective

standards for selection and promotion which had the ef-

fect before and after 1972 of restricting the advancement

of black employees.

Bostick’s ‘‘reclassification’’ problem was one

classically experienced by blacks at the Library. The use

of the classification procedures to discriminate against

black Library employees by relegating them to lower

positions within the Library was confirmed by the

American Library Association, Library of Congress In-

quiry Team Report. Prior to 1972, there existed in the

Library an ‘‘invisible ceiling’? above which blacks were

not promoted.

Up to 1972, there was a practice and pattern of

racial discrimination at the Library which had a continu-

ing impact on tenured employees. There was a

Statistically significant difference in salary and grade

levels at the Library which was attributable to race,

after control variables were accounted for. In fact,

Defendant’s expert quantified the amount of the

discrimination. He concluded that as a result of the

discriminatory practices, black employees of the Library

had been deprived of a sum of approximately

$8,409,160 in wages during the years 1974-76 alone that

they would have earned had they been white.

10

Yet, despite this evidence, the district court declined

to order any relief. Petitioners then appealed to the

Court of Appeals for the District of Columbia. The

Court of Appeals’ review of the class certification deci-

sion was limited to a footnote, and a petition for rehear-

ing was denied.

REASONS FOR GRANTING THE WRIT

I. On an Important Question of Federal Law,

the Decision of the District of Columbia Cir-

cuit Court of Appeals is in Direct Conflict with

the Decisions of Other Circuits.

A. The Courts Below Misconstrued the ‘‘Typicali-

ty’? Requirement of Rule 23, As Applied to

Class Actions Under Title VII.

The decision of the Court of Appeals, affirming the

district court’s denial of class certification on the

grounds of lack of typicality, adopted a seriously flawed

reading of the typicality requirement. This narrow view

of the requirement, which focused on the necessarily dif-

fering factual circumstances of each employee,

represented an extreme minority view at the time it was

expressed; as of this date, all of the cases on which the

court below relied have either been reversed or have

been substantially discredited. The District of Columbia

Circuit now stands alone in its severely restrictive inter-

pretation of the typicality requirement.

The decision denying class certification in this mat-

ter was premised upon a case which was subsequently

overturned by the Fifth Circuit sitting en banc, Huff v.

N.D. Cass Company of Alabama, 4 E.P.D. 47833 (N.D.

Ala. 1971), reversed, 485 F.2d 710 (Sth Cir. 1973) (en

banc). Williams v. Mumford, 6 E.P.D. 48785 at p.

1]

5385. This error was compounded by the lower courts’

misconstruction of the typicality requirement of Rule 23

of the Federal Rules of Civil Procedure (‘‘F.R.C.P.’’)

The district court incorrectly held that under the

typicality requirement, the employment position of the

class representative must be typical of each member of

the class. App. 3a-5a. Under this definition there could

never be a class of black employees seeking to remedy

effects of systemic discrimination. By this definition, a

class could consist only of those persons occupying the

very same employment position as the person who seeks

to sue. Discrimination would have to be opposed on a

job function by job function basis. Neither Rule 23 nor

Title VII intended such a piecemeal remedy.

The lower courts apparently believed that the

typicality requirement of F.R.C.P. 23(a)(3) should not

be relaxed in Title VII cases. This notion is contradicted

by the opinions of other Circuits. Senter v. General

Motors Corp., 532 F.2d 511, 517, 523-24 (6th Cir.

1976), cert. denied, 429 U.S. 870 (1976); Wright v.

Stone Container Corp., 524 F.2d 1058, 1061-62 (8th Cir.

1975).

No precedent supports the restrictive interpretation

of the typicality requirement applied by the lower

courts. The district court held that simply because the

representative plaintiff’s employment position was held

by no other members of the class he sought to represent,

his position was unique and therefore he was not

typical. 6 E.P.D. at 5385. However, Rule 23 does not

focus on the position of the representative plaintiff; it

requires only that the claims of the plaintiff be typical

of those of the class. Payne v. Travenol Laboratories,

565 F.2d 895, 900 (Sth Cir. 1978); Alexander v. Aero

Lodge No. 735, 565 F.2d 1364, 1372 (6th Cir. 1977);

12

Donaldson v. Pillsbury Co., 554 F.2d 825, 830-831 (8th

Cir. 1977); Gibson v. Local 40, 543 F.2d 1259, 1264 (9th

Cir. 1976). This was a fundamental error by the court in

denying certification.

The representative plaintiff in this case alleged no

unique instances of discrimination directed at him as an

individual. He alleged that the racial discrimination

which he suffered exemplified the pervasive racial

discrimination at the Library. Even if Bostick’s job posi-

tion is unique, his claims were not. They involved the

way in which the Library’s classification program was

utilized in a discriminatory manner against minorities, a

claim typical of the class. Indeed, if the position of the

lower courts were adopted, there could never be a class

of persons discriminated against.

The typicality requirement of Rule 23(a)(3) is

satisfied when the class representative demonstrates the

existence of other class members with ‘‘similar’’ or

‘*typical’’ grievances. Wright v. Stone Container Corp.,

supra, 524 F.2d at 1062.

Under the lower courts’ narrow reading of typicali-

ty, virtually no class action could be maintained unless

the named plaintiff’s employment position mirrored that

of the class members. Such a requirement would impose

a crushing burden upon Title VII class action plaintiffs.

B. The Court’s Holding that a Class Action Is

Not a Superior Method of Adjudication for

Federal Employee Discrimination Claims Is

Clearly Erroneous. .

In denying class certification, the district court also

held that plaintiffs had failed to satisfy the

‘superiority’? requirement of F.R.C.P. 23, on the

grounds that the Federal Government had already pro-

_

a

13

vided an effective mechanism for remedying discrimina-

tion complaints and that while a class action might be a

superior method of adjudication for private Title VII

litigants, Federal employees had no need for class action

suits to redress their discrimination complaints.

‘*‘{Ujnlike the situation of the employee in the

private sector effective administrative remedies

against racial discrimination are available to federal

employees outside of Title VII, and the need for

class action adjudication is less apparent than in in-

stances in which Title VII alone is in the picture.’’

App. 6a.

Again, the district court’s opinion rests on a faulty

premise. Under its analysis, there could never be any ti-

tle VII class-action litigation against the Federal Govern-

ment because there are administrative procedures geared

to resolving these sorts of complaints in the Federal

Government.

The court’s opinion completely ignores and in fact

totally contradicts the 1972 amendments to Title VII,

which extended the guarantees of equal employment op-

portunities to Federal employees. 42 U.S.C. § 2000e-16.

This Court recognized the importance of the 1972

legislation by its reference to the legislative history of

those amendments in Morton v. Mancari, 417 U.S. 535,

n.22 546-47, (1974):

‘‘This disproportionate distribution of minorities

and women throughout the Federal bureaucracy

and their exclusion from higher level policymaking

and supervisory positions indicates. the

government’s failure to pursue its policy of equal

opportunity.”’

‘fA critical defect of the Federal equal employment

program has been the failure of the complaint pro-

cess. That process has impeded rather than advanc-

14

ed the goal of the elimination of discrimination in

Federal employment... .”’

‘*The present law and the proposed statute do not

permit industry and labor organizations to be the

judges of their own conduct in the area of employ-

ment discrimination. There is no reason why

government agencies should not be treated similar-

I

The existence of administrative procedures does not

rule out the propriety of class actions in federal employ-

ment cases brought pursuant to Title VII. Such a result

would defeat the spirit and intent of the 1972 amend-

ments. Class actions involving federal employee

discrimination complaints are not only proper, but are

necessary, to effectuate the Congressional intent. See,

e.g., Williams v. Tennessee Valley Authority, 552 F.2d

691, 697 (6th Cir. 1977).

II. The District Court’s Refusal To Grant Class

Relief In Light Of Admitted Systemic

Discrimination Violates The Purpose And In-

tent Of Title VII And Is In Conflict With The

Law Of Other Circuits.

In Title VII cases the federal courts have not only

the power but the duty to consider the effects of the

employer’s alleged discrimination on the class; this duty

exists whether or not the suit is brought or certified as a

class action, and the court is obligated to provide relief

to affected employees, whether or not it awards relief to

the individual plaintiff. In failing to fulfill this obliga-

tion, the lower courts erred.

The courts below ignored the voluminous, uncon-

tradicted evidence of class-wide discrimination at the

Library and declined to grant any relief to the class.

15

This refusal effectively repealed the protective provisions

of Title VII, leaving the class of discriminated-against

employees with no means of ameliorating the pervasive

racial discrimination at the Library.’

The district court assumed that a prima facie case

had been proved, but determined that Bostick’s claims

had been effectively rebutted by the Library. In so do-

ing, however, the lower courts did not consider the ef-

fect that the Library’s discriminatory practices had on

the class. This failure was clear error. The court has a

duty to assess evidence of discriminatory conduct

against the class regardless of whether it has certified a

class action or determined that the plaintiff’s individual

claim has merit.

The courts have recognized that Title VII

discrimination suits are by their very nature class ac-

tions, whether or not they are denominated as such. In

Sprogis v. United Air Lines, Inc., 444 F.2d 1194,

1201-02 (7th Cir. 1971), the Court held:

‘‘The vindication of the public interest expressed by

the Civil Rights Act constitutes an important facet

' The courts’ failure to assess the impact of the evidence of class-

wide discrimination coupled with the Library’s refusal to comply

with minimum federal affirmative action standards effectively in-

sulates the Library from persons seeking relief from_ its

discriminatory employment practices. The Library takes the posi-

tion that it is not required to (nor in fact does it) meet the affir-

mative action guidelines of the Civil Service Commission or the

Equal Employment Opportunity Commission. Trial Testimony of

Dr. Eugene Walton, Coordinator of the Affirmative Action Pro-

grams at the Library, pp. 641-42, 653, 659-60. Its failure to meet

these minimum standards is in direct defiance of the express

language of Title VII which specifically include the Library as being

within its scope (42 U.S.C. § 2000e-16a) and which direct the

Librarian of Congress to fulfill the responsibilities granted to the

Civil Service Commission with respect to the Library’s employment

practices, a mandate which is blatantly ignored.

16

of private litigation under Title VII. In Bowe v.

Colgate-Palmoilive Co., 416 F.2d 711, 719 (7th Cir.

1969), Judge Kerner recognized that such a suit is

necessarily a class action ‘as the evil sought to be

class characteristic, i.e., race, sex, religion or na-

tional origin.’ See also Jenkins v. United Gas Cor-

poration, 400 F.2d 28, 33 (Sth Cir. 1968). At stake,

therefore, are the interests of the other members of

that class, and the court has a special responsibility

in the public interest to devise remedies which effec-

tuate the policies of the Act as well as afford

private relief to the individual employee instituting

the complaint.

Section 706(g) of the Act grants to federal courts

plenary powers to fashion affirmative _ relief

eradicating present discrimination and redressing

the adverse consequences of past unlawful conduct

... In Bowe, we held that this power ‘should be

broadly read and applied so as to effectively ter-

minate the practice and make its victims whole.’

416 F.2d at p. 721. In order to accomplish that

result, we ordered that the ‘relief should be made

available to all who were so damaged whether or

not they filed charges and whether or not they join-

ed in the suit.’ /d.; Cf. Griffin v. County School

Board of Prince Edward County, 377 U.S. 218y

224, 84 S.Ct. 1226, 12 L.Ed.2d 256 at 1201-02.”’

(citations omitted)

Similarly, in Saracini v. Missouri Pacific Railroad

Co., 431 F. Supp. 389, 395 (E.D. Ark. 1977), the Court

held:

‘*Despite the fact that this case was not brought as

a class action, this court is of the opinion that

general relief would be appropriate ... Title VII

cases inherently involve discrimination against a

class characteristic, [citing Parham, supra,] and

under this reasoning, courts have upheld class-type

injunctive and affirmative relief in cases by in-

dividual plaintiffs.’’

17

Where racial discrimination has been alleged, the

district court has not merely the power but the duty to

render a decree which will, as far as possible, eliminate

discriminatory effects of the past as well as bar like

discrimination in the future. /nternational Brotherhood

of Teamsters v. United States, 431 U.S. 324 (1977);

Albemarle Paper Co. v. Moody, 422 U.S. 1008 (1975).

The remedial provision of Section 706(g) of Title

VII, 42 U.S.C. § 2000e-5(g), which provides that a court

may enjoin and order such affirmative action as may be

appropriate, must be broadly read and applied so as to

effectively terminate the practices of racial discrimina-

tion and make its victims whole. The relief contemplated

by Title VII is intended to restore those wronged to their

rightful status absent the effects of the unlawful

discrimination. Rosen v. Public Service Electric and Gas

Company, 477 F.2d 90, 96 (3d Cir. 1973); Robinson v.

Lorillard Corp., 444 F.2d 791 (4th Cir.), cert. denied,

404 U.S. 1006 (1971).

= In Parham v. Southwestern Bell Telephone Co., 433

F.2d 421, 428-29 (8th Cir. 1970), the court noted the

flexibility in awarding relief which is authorized by Title

VII:

[OJnce a violation of Title VII has been found,

courts possess wide discretion in modeling decrees

to insure compliance with the 1964 Civil Rights Act

... In the exercise of that discretion, courts have

devised various remedies for Title VII violations.

[United States v. International Brotherhood of]

Electrical Workers Local 38, supra, 428 F.2d 144

[6th Cir. 1970] (case remanded to district court with

directions to retain jurisdiction and determine ap-

propriate affirmative relief); [United States v.]

Sheet Metal Workers, Local 36, supra, 416 F.2d

123)(8th Cir. 1969} (locals ordered to modify

18

employment-referral systems programs); United

States v. Hayes International Corporation, 415 F.2d

1038 (Sth Cir. 1969 (preliminary injunction

granted); [United States v.] Plumbers Local 73,

supra, 314 F.Supp. 160 [S.D. Ind. 1969] (union’s

apprenticeship program revised, court retaining con-

tinued jurisdiction to insure compliance); (United

States v. Bethlehem Steel Corporation, supra, 312

F.Supp. 977 (W.D.N.Y. 1970) (extensive plan for

ending discriminatory seniority rights adopted).

Thus, .whether or not an_ individual plaintiff

establishes his or her own right to relief, the evidence in-

troduced in the case may, as in this case, be of such a

nature as to establish a pervasive policy of discrimina-

tion against minorities. In such circumstances, a court is

obligated to consider and grant relief to the other

minorities being discriminated against whether or not

the plaintiff proves his individual claim and whether or

not the court has certified a class. See Sledge v. J.P.

Stevens & Co., Inc., 585 F.2d 625, 634 (4th Cir. 1978);

Bolton v. Murray Envelope Corporation, 553 F.2d 881,

883 (Sth Cir. 1977); Gibson v. Local 40, Supercargoes

and Checkers of the Int’l. Longshoremen’s and

Warehousemen’s Union, 543 F.2d 1259, 1263 (9th Cir.

1976); Barnett v. Martin-Marietta Corp., 522 F.2d 333,

340 (10th Cir. 1974); Huff v. N.D. Cass Co., 485 F.2d

710 (Sth Cir. 1973) (en banc). See also, Parham v.

Southwestern Bell Telephone Co., supra; Saracini v.

Missouri Pacific Railroad Co., supra, 431 F.Supp. at

396.

Moreover, the courts’ failure to assess the impact of

Defendant’s discriminatory practices on the class, which

were exactly like those found to exist in James v.

Stockham Valves and Fittings Co., 559 F.2d 310 (Sth

Cir. 1977), is in direct conflict with the fifth Circuit’s

19

ruling in that case. There, as here, evidence was in-

troduced to demonstrate that there were no objective

criteria for purposes of job selection and promotion but

rather that wholly subjective non-validated criteria were

employed by the Defendants. Furthermore, the evidence

in both cases clearly established gross disparities in the

wages earned by black and white employees, the use of

subjective evaluations of employees by predominantly

white supervisors. In both cases, the employers pre-

sented defenses based on nonvalidated testing and the

nature and quality of educational levels achieved by the

employees. The Fifth Circuit in James found that such

evidence clearly established a case of racial discrimina-

tion. The District of Columbia Circuit essentially ig-

nored this evidence.’

Ill. The Lower Courts’ Misapplication Of The

Relevant Statistical And Graphic Analyses

Demonstrating Statistically Significant

Disparities Between Black And Non-Black

Employees Attributable To Race Is A Substan-

tial Error Requiring Review And Guidance By

This Court

The lower courts miscontrued the nature and func-

tion of statistical evidence and improperly applied its

conclusions to the facts presented by the experts.

Both the Library and Bostick presented expert

witnesses with regard to an analysis of pay disparities

between black and white employees at the Library.

Bostick’s expert was Dr. Charles Mann and the

Library’s expert was Dr. C.J. Bartlett. Both concluded

> The critical deficiency in the decision of the Court of Appeals is

that it considered this evidence only as applied to Bostick and not

as to its class-wide impact. App. 4a n. 9.

20

that there were statistically significant pay disparities at-

tributable to race between black and white employees

prior to 1972 and that the black employees of the

Library hired prior to 1972 and still within the Library

were suffering the present effects of past discrimination.

In both analyses of pay disparity and race, Bostick

was specifically included within a group which showed a

statistically significant disparity between — similarly

situated white and black employees.

Specifically with regard to long-term employees

such as Bostick, it was the finding of the Library’s ex-

pert that:

‘‘With regard to annual salary and grade level there

did appear to be race differences that cannot be ex-

plained by differences in tenure, education or age.

The data also suggests that most of these dif-

ferences were a result of large differences in the

longer tenure employees, those hired prior to ©

1972.”

Significantly, the Library’s report concluded:

‘‘The overall pattern of results suggests the present

salary and grade disparity for the longer tenure

employees may be the residual effect of past per-

sonnel policies.’’

With regard to employees hired after 1972, both ex-

perts concluded that there still existed a statistically

significant pay and grade disparity of substantial

magnitude attributable to race between white and black

employees at the Library for the years 1972 through

1974,

From 1972 on, the Library has maintained or ac-

quiesced in policies and practices which favor white ap-

21

plicants and employees with regard to their educational

achievements — white employees received and receive

substantially more pay per year of education than iden-

tically situated black employees.

The district court indicated that it was not convinc-

ed that the statistical evidence demonstrated a ‘‘causal

connection between any racial discrimination at the

Library and the decision not to reclassify Bostick’s posi-

tion’? App. The court’s findings with regard to the

Statistical evidence presented are at odds with the mean-

ing of statistical data in cases of this type. Statistics can-

not isolate a causal relationship between evidence of pat-

terns of disparity and a particular employment decision

affecting only one individual. See Hazelwood School

District v. United States, 433 U.S. 299 (1977). Rather,

they allow an examination of the patterns present in

groups of similarly situated individuals to determine if

there is a disparity in their levels of achievement as in-

fluenced by employment policies or practices.

Hazelwood, supra. In this case, both statistical experts

found a disparity between the pay and grade levels of

black and white employees with the same or similar

education and employment qualifications as Bostick.

This disparity was attributed by both experts to race.

The statistics raise the inference that what happened

to Bostick was the result of racial discrimination. The

Statistics should not have been rejected because they

allegedly failed to establish a causal relationship, since

this is not the nature of statistics.

Moreover, the District Court compounded its error

by ignoring the legitimate results of the statistical

analysis in its statement that the statistics did not sustain

Bostick’s burden of proving there was racial discrimina-

22

tion in the Library in 1972 affecting Bostick. (App.

39a-40a.) The question the Court should hav. addressed,

and did not, was how the Library’s past racially

discriminatory policies and practices affected Bostick’s

employment opportunities in and after 1972.

The court’s statements concerning the relevance and

import of statistical evidence and the use of such

evidence in Title VII cases were clear errors of law.

The use of statistics, this Court has noted, has

played a particularly significant role in cases alleging

patterns or practices of broad-based racial discrimina-

tion. See International Brotherhood of Teamsters v.

United States, 431 U.S. 324 (1977). See also Hazelwood

School District v. United States, supra.

Indeed, this Court has stated that:

‘‘Where gross statistical disparities can be shown,

they alone may in a proper case constitute prima

facie proof of a pattern or practice of discrimina-

tion.’” Hazelwood School District, supra, at 307-08.

The evidence of discriminatory hiring and promo-

tion practices in this case was confirmed by independent

Statistical analyses by experts retained by Bostick and

the Library. The lower courts’ misapplication of this

evidence and their inability or unwillingness to consider

the impact of this data is clear error requiring reversal

and guidance from this Court.

23

CONCLUSION

For these reasons, a Writ of Certiorari should issue

to review the Judgment and Opinion of the Court of

Appeals for the District of Columbia Circuit.

Respectfully submitted,

JERRY S. COHEN

HERBERT E. MILSTEIN

MICHAEL D. HAUSFIELD

Kohn, Milstein & Cohen

1776 K Street, N.W.

Washington, D.C. 20006

Attorneys for Petitioners

APPENDIX

la

First District Court Decision

UNITED STATES DISTRICT COURT

DISTRICT OF COLUMBIA

No. 1633-72

August 20, 1973

[4 8785] Joslyn N. Williams et al., Plaintiffs

v.

L. Quincy Mumford et al., Defendants.

[Statement of Case]

Jones, D.J.: This is a suit for declaratory, injunctive, and

monetary relief against allegedly racially discriminatory prac-

tices at the Library of Congress. The defendants are L. Quin-

cy Mumford, the Librarian of Congress, and Robert W. Hut-

chison, the Library’s Director of Personnel. Jurisdiction is

based on title VII of the Civil Rights Act of 1964, as amend-

ed by the Equal Employment Opportunity Act of 1972, 86

Stat. 103, 42 U.S.C.A. § 2000e-16, which specifically brings

federal employees, including those at the Libarary of Con-

gress, within the coverage of the Act. Presently pending

before the Court are the plaintiffs’ motion and application

for class action determination and the defendants’ motions to

strike the class action allegations, to sever the claims of the

two individual plaintiffs, to dismiss as to defendant Hutchin-

son, and for a protective order. The motion to certify as a

class action will be denied, the claims of the two plaintiffs

will be severed, the protec tive order will be granted,' and the

defendant Hutchison will be dismissed.

' At the time of the oral hearing on the motions, it was agreed by

counsel that the question of the scope of discovery against which

the protective order is sought would be governed by the ruling on

the motion for class action certification.

2a

In their amended complaint,’ the plaintiffs bring this suit

as a class action under Fed. R. Civ. P. 23(a), 23(b)(2) and (3)

on behalf of all black persons currently employed at the

Library, all those black persons who were employed by the

Library at any time since 1960 but who are no longer

employed, for whatever reason, and all black persons who

unsuccessfully sought employment with the Library at any

time since 1960. Racially discriminatory practices relating to

recruitment, hiring, promotion, segregated job classifications,

and firing are alleged to have been conducted by the defen-

dants. Although it has been held that a suit brought by a

black alleging title VII violations is perforce a sort of class ac-

tion for other employees similarly situated, Jenkins v. United

Gas Corp., {1 EPD 49908] 400 F. 2d 28, 33 (Sth Cir. 1968),

the requirements of Fed. R. Civ. P. 23 relating to class ac-

tions must still be fulfilled before that remedy may properly

be invoked. Arey v. Providence Hospital, [4 EPD 7788] 55

F. R. D. 62, 67-68 (D.D.C. 1972). In this case the plaintiffs

have failed to meet the requirement of Fed. R. Civ. P.

23(a)(3) that their claims be typical of the claims of the class,

as well as the requirement of Fed. R. Civ. P. 23 (b)(3) that

the class action method of adjudication be superior to other

available methods for the ‘‘fair and efficient’’ resolution of

the controversy. In this connection, several concerns uniquely

related to title VII suits against federal government agencies

dictate that this case not be maintained as a class action.

[Plaintiff’s Claims Unique}

The claims of the individual plaintiffs demonstrate their

unique nature, and thus preclude the plaintiffs from meeting

? This case was originally brought to enjoin the alleged unlawful

firing f the plaintiff Williams under circumstances outlined, infra.

After denial of the plaintiff Williams’ motion for summary judg-

ment,leave was granted to file an amended complaint under title

VII, 180 days having elapsed since the filing with the Library of the

initial complaint of discrimination and final action not having been

taken. The isntant class action complaint, joing the plaintiff Bostick

and ading the defendant Hutchison, was then filed.

3a

the typicalness requirement of Fed. R. Civ. P. 23(a)(3). In

June, 1972, over five years after the plaintiff Williams had

been hired as a copyright examiner, he was informed that his

employment would be terminated in July because of flase

Statements in his employment application.’ Williams alleges

that in an attempt to gain time for negotiation he was coerced

into signing a resignation effective August 11, 1972. On that

date, ‘Williams unsuccessfully attempted to withdraw that

resignation. Still later on the 11th, Williams filed a complaint

with the Equal Opportunity Ofice of the Library, alleging

that his firing was for racially discriminatory reasons. Shortly

thereafter, the original complain in this case was filed.‘

In the amended complaint, the plaintiff Bostick alleges

that since he began his employment at the Library in 1947 on

three occasions he has requested a job reclassification for pur-

poses of promotion. In the first two attempts, the reclassifica-

tions became effective approximately six and four years later,

respectively. The third request for promotion has been pen-

ding for over two years. Bostick alleges that white employees

are promoted without their request, and that whites hired at

the same time as he have attained far higher grade levels

because of racial discrimination. Bostick is a ‘‘visual informa-

tion specialist’? in the Congressional Research Service of the

Library. The position is unique. No one else holds such a

position in the Library.

[Class Action Not Proper]

From the foregoing, it is apparent that the claims of the

named plaintiffs in this case lack the typicalness of the claims

> Although the truth of the statements in the application was at

issue in the earlier stages of this letigation, counsel for the plaintiffs

admitted at the ral hearing on the motions that the statements were

in fact false. Transcript 13-14. Williams ccontends, however, that in

order to obtain a job he had to demonstrate qaualifications

superior to those of white applicants. Thus, he allegesthat the false

statements in the application were the result of racial prejudice that

would have denied him the job if he had not lied.

“See note 2, supra.

4a

of the class that is needed to make them proper class

representatives. Whether Williams resigned or was fired, he

has admitted to making false statements on his original ap-

plication for employment; Bostick is employed in a unique

capacity, one given to classification dispute, as is evident

from the allegations of the complaint. Even though both of

the plaintiffs are black and the charge of the complaint is

racial discrimination, the cases of the plaintiffs are too far

removed from the general policy and patterns of discrimina-

tion alleged in the complaint. Each of their claims of

discrimination is unique, and thus the Court holds that

neither is a proper class representative. See Smith v. North

American Rockwell Corp., [2 EPD 410,214] 50 F.R.D. 515

(N.D. Okla. 1970).

In reaching this conclusion, the Court is fully cognizant

of the rule that in determining whether a case should proceed

as a class action the question to be answered is not whether

the plaintiffs will prevail on the merits, but rather whether the

requirements of Fed. R. Civ. P. 23 have been met. Halverson

v. Convenient Food Mart, Inc., 458 F. 2d 927 (7th Cir. 1972);

Miller v. Mackey International, Inc., 452 F. 2d 424 (Sth Cir.

1971). Thus in describing the allegations of the individual

plaintiffs, no view is rendered on the possible success o. their

claims on the merits.

The Court imposes no requirement that the plaintiffs

show that they were discriminated against individually before

they may maintain a class action. Hadnott v. Laird, [4 EPD

47678] 149 U.S. App. D.C. 358, 365 n. 21, 463 F. 2d 304,

311 n. 21 (1972). But the Court is equally mindful that proof

of racial motivation alleged by the plaintiffs to have occurred

in their situations does not thereby prove the claims of those

whom they seek to represent. Relief against the discriminatory

practices alleged in the complaint hinges upon proof that each

practice is prohibited conduct that has been engaged in by the

Library. In view of the potentially severe res judicata conse-

quences of class suits, the Court must be careful to ascertain

that the requisite typicalness of the plaintiffs’ claims is pre-

Sa

sent. Therefore, the Court does require that the plaintiffs be

members of the class they purport to represent with claims

typical of that class so as to guarantee effective representation

of the class members. Because the other members of the

potential class clearly are not similarly situated to the plain-

tiffs, whose claims of discrimation involve unique cir-

cumstances, the plaintiffs are not proper class representatives

and the motion to certify the class will be denied. See Huff v.

N.D. Cass Co., [4 EPD 47775] 468 F. 2d 172 (Sth Cir. 1972)

(reheard en banc Oct. 30, 1972, decision pending);

Developments in the Law — Employment Discrimination and

Title VII of the Civil Rights Act of 1964, 84 Harv. L. Rev.

1109, 1218-19 (1971).

[Superior Method Requirement]

Even if the plaintiffs were proper class representatives,

however, the requirement of Fed. R. Civ. P. 23(b)(3) that a

clas action be ‘‘superior to other available mehtods for the

fair and efficient adjudication of the controversy’’ has not

been met. See, e.g., Wilcox v. Commerce Bank of Kansas Ci-

ty, 474 F. 2d 336, 345 (10th Cir. 1973). This requirement is

particularly significant in title VII suits against the federal

government authorized by the 1972 amendments, supra.

Although the 1972 amendments for the first time made

title VII specifically applicable to the federal government, it

has been well established that the federal government has no

license to discriminate. Bolling v. Sharpe, 347 U. S. 497

(1954). The 1972 amendments to title VII have removed the

final barrier to suit, the defense of sovereign immunity, and

federal employers are now fully sub ject to its strictures. But

federal employees have long had and still have advantages

over their provately employed counterparts in remedying

alleged illegal conduct by their employers. Title VII is fre-

quently the only basis upon which victim of private

discrimination may proceed. On the other hand federal

employees have long been able through judicial action to re-

quire agencies to follow their own personnel procedures and

6a

regulations. Service v. Dulles, 354 U.S. 363 (1957). Thus,

unlike the situation of the employee in the private sector, ef-

fective administrative remedies against racial discrimination

are available to federal employees outside of title VII, and the

need for class action adjudication is less apparent than in in-

stances in which title VII alone is in the picture. The cir-

cumstances of this case are particularly illustrative.

The Library of Congress has had regulations for process-

ing complaints of discrimination since at least 1967. Library

of Congress Regulation [LCR] 2010-3. That regulation re-

quires the Librarian to take corrective action upon a finding

of discrimination at the final administrative step. Ringer v.

Munford, [5 EPD 8481] 355 F. Supp. 749 (D.D.C. 1973).

Given this effective administrative remedy outside of title VII,

the Court finds that a class action is not the superior method

of adjudication in this case, and thus the motion to certify

the class under Fed. R. Civ. P. 23(b)(3) must be denied on

that basis.

[Administrative Record]

There is yet a third independent ground upon which the

motion to certify the class must be denied. Although the case

is brought as a class action aleging across the board racially

discriminatory practices throughout the Library, neither plain-

tiff raised any allegation of class discrimination in his ad-

ministrative complaint of discrimination before the Library.’

Thus the allegatins of class discrimination have not proceeded

through the proper exhaustion of administrative remedies,

and cannot form the basis for a class action at this time.

Hackley v. Johnson, [6 EPD 8725] F. Supp. .

n. 11 (D.D.C. July 13, 1973) (Gessell, Jr.) (dictum). Title VII

suits against federal employers are normally to be reviews of

administrative action. /d., F.Supp. at . As such,

* LCR 2010-3, § E and LCR 2010-3 (Appendix), § V.C make it

clear that a group complaint could have been filed by either plain-

tiff.

7a

the complaint should be limited to the allegations made at the

administrative level.

In Hackley, unlike the present case, the Court had before

it the final and complete administrative record. Judge Gesell

concluded in that case that it was proper that the suit proceed

solely as a review of that record. In the present case, no final

administrative decision was made on the complaint of either

plaintiff within 180 days of the filing of the complaint, and

therefore the plaintiffs had a right to file suit in this Court. 42

U.S.C.A. § 2000e-16)c). Of necessity, the instant suit cannot

be decided solely on the basis of a review of the ad-

ministrative record because a complete record does not exist.

But given the policies of title VII suits against the federal

government, even the de novo proceedings in this Court

should be restricted to the matters raised in the administrative

complaint. The motion to certify as a class actin must

therefore be denied.

A contrary result is not required by the many decisions

under title VII concerning private employers which have read

the initial complaint to the Equal Employment Opportunity

Commission [EEOC] broadly in finding sufficient exhaustion

to form the basis for a class action. First, the unique status of

federal employees even without title VII mandates that com-

plete exhaustion be required. Second, even under the broad

principle that an action brought pursuant to title VII should

be limited ‘‘to the scope of the EEOC investigatin which can

reasonably be expected to grow out of the charge of

discrimination,’’ Sanchez v. Standard Brands, Inc., {2 EPD

10,252] 431 F. 2d 45, 466 (Sth Cir. 1970), the plaintiffs have

not sufficiently exhausted their administrative remedy to bring

ihis case as a class action.

The allegations of the cmplaint, it will be recalled, are:

(1) that the plaintiff Bostick was denied promotion in a uni-

que job; and (2)that the plaintiff Williarns was fired because

of his race, and not because of his admittedly false statements

on his employment application. It cannot be expected that an

8a

investigation of these charges would reasonable be expected

to encompass the across the board allegations of discrimina-

tion which the plaintiffs have made in their complaint, cover-

ing the entire recruitment, hiring, promotion, and termination

practice in the entire Library of Congress. In all likelihood,

their allegations would not lead to such a broad investigation

even within the two departments in which the plaintiffs were

employed.* At the same time, it must be recalled that either

plaintiff could have filed his initial charge with the Library as

a group complaint, note 5 supra. Neither did, In these cir-

cumstances the scope of the instant suit cannot be expanded

byond the allegations of discrimination against the plaintiffs

merely by adding class actin language in the complaint.

[Other Rulings]

What has gone before indicates that the claims of the in-

dividual plaintiffs, unique in their nature, must be seveed as

improperly joined under Fed. R. Civ. P. 20. The broad rang-

ing discovery sought by the plaintiffs relating to the Library’s

entire employment file since 1960 will be restricted to matters

relating to the plaintiffs’ individual claims.

The motion of the defendant Hutchison to dismiss will

be granted. Under the 1972 amendments, the ‘‘head of the

department, agency, or unit, as appropriate, shall be the

defendant.’’ 42 U.S.C.A. § 2000e-16)c). Thus the defendant

Hutchison, the director of personnel, is not a proper defen-

dant and should be dismissed. Moreover, it is clear that any

relief that the Court may subsequently order on the individual

claims of the plaintiffs can be afforded by orders against the

remaining defendant, the Librarian of Congress.

6 In this respect, the attempted reliance by the plaintiffs on the

findings of racial discrimination in the Library by the hearing ex-

aminer in Ringer v. Mumford, [5 EPD 8481] 355 F. Supp. 749

(D.D.C. 1973) is misplaced. The Court did not hold that those fin-

dings were not arbitrary and capricious. It had no occasion to

review those finding of class-based discrimination and still has

none. 355 F. Supp. at 753, 754n.11. .

9a

Therefore, it is this 17th day of August, 1973, Ordered:

1. ‘hat the motion of the plaintiffs for certification as a

class action be and the same is hereby denied:

2. That the motion of the defendants to sever the claims

of the individual plaintiffs be and the same is hereby granted;

3. That the motion of the defendants for a protective

order be and the same is hereby granted and the requests for

discovery served upon the defendants shall be limited to mat-

ters relating to the administrative complaints of discrimina-

tion filed with the Library by the plaintiff Williams on

August 11, 1972; and by the plaintiff Bostick on April 19,

1972; and

4. That the motion to dismiss of the defendant Hut-

chison be and the same is hereby granted.

10a

First Court of Appeals Decision

UNITED STATES COURT OF APPEALS,

DISTRICT OF COLUMBIA CIRCUIT.

No. 73-2120

JOSLYN N. WILLIAMS AND RoserT L. Bostick, Appellants,

v.

L. QuiNCY MUMFORD, LIBRARIAN OF CONGRESS, ET AL.

Argued 31 Oct. 1974

Decided 10 Feb. 1975

Rehearing En Banc Denied April 4, 1975.

Before Ross and WILKEY, Circuit Judges, and MARKEY, *

Chief Judge for the United States Court of Customs and Pa-

tent Appeals.

WILKEY, Circuit Judge:

Williams and Bostick are black employees of the Library

of Congress. Bostick claims that from the time he began his

employment with the Library in 1947 he has been subject to

racial discrimination as regards his job classification and pro-

motion. On or about 19 April 1972 Bostick filed a formal

complaint alleging discrimination with the Equal Employment

Opportunity (EEO) Office of the Library of Congress. Four

months later he amended his complaint and _ alledged

discrimination affecting all other black employees of the

Library. In November 1972 the EEO Office returned the

amended complaint, stating that the office was not equipped

to handle broad inquiries into the general policies and prac-

tices of the Library.

- Williams had been employed as a copyright examiner

with the Library since June 1967. Soon after he began his

employment with the Library he was elected president of

* Sitting by designation pursuant to 28 U.S.C. § 293(a).

lla

Local 1826 of the American Federation of Government

Employees, a union which represents Library employees and

president of a task force named ‘‘Black Employees of the

Library of Congress.’’ Williams alleges he was active in pro-

moting equal employment in the Library and in aiding

employees who brought discrimination actions. In June 1972

he was given notice of removal effective 21 July 1972.' The

removal was based on charges of material misrepresentations

relating to his schooling, made on his 1967 application for the

position of copyright examiner. In lieu of removal, on 21 July

1972 the Library accepted a _ resignation submitted by

Williams to be effective on 11 August 1972. However, shortly

before the effective date of his resignation, Williams re-

quested that his resignation be withdrawn. After the Library

refused to allow the withdrawal, on 11 August Williams filed

his administrativ complaint with the EEO Office, alleging that

his resignatin was coerced and that his removal was racially

motivated,

Three days later Williams also filed in the District Court

an action solely on his own behalf, alleging that his removal

was the result of racial discrimination and that his resignation

had been coerced. On 20 March 1973 Williams filed an

amended complaint, adding an allegation that 180 days had

passed without final administrative action on his ad-

ministrative complaint. At this point Bostick’s allegations of

discrimination were also added to Williams’ complaint. Final-

ly allegations were added alleging discrimination against all

blacks currently employed by the Library all blacks who had

been employed at any time since 1960, and all blacks who had

sought employment unsuccessfully since 1960, thus making

the complaint on its face a classaction

On 20 August 1973, after a hearing, the District Court

denied Williams’ and Bostick’s request for class certification.

' Williams also contends he was given the notice of removal just

one week before he was to address the American Library Associa-

tion’s convention about the racial employment policies and prac-

tices of the Library.

12a

The denial was based on two grounds: First, that Williams’

and Bostick’s claims were not typical of the claims of the

class they sought to represent as required by Rule 23(a)(3),

Federal Rules of Civil Procedure. Second, given the effective

administrative remedies available to federal employees apart

from Title VII of the Civil Rights Act of 1964 as amended

by the Equal Employment Opportunity Act of 1972,’ the

class action was not ‘‘superior to other available methods for

the fair and efficient adjudication of the controversy’’ as re-

quired by Rule 23(b)(3), Federal Rules of Civil Procedure.

On 25 September 1973 an appeal from the refusal to cer-

tify a class action was taken.’ We are presented with the

question whether the refusal by a district court to certify a

class action constitutes an appealable order. On the facts of

this case, we decide that such an order is not appealable and

therefore dismiss this appeal for lack of jurisdiction.

1. APPEALABILITY UNDER 28 U.S.C. §§ 1291

[1] The principal source of our jurisdiction to hear ap-

peals from the District Court is 28 U.S.C. § 1291 which pro-

vdes: ‘*The courts of appeals shall have jurdisdiction of ap-

peals from all final decisions of the district courts of the

United States . . . except where a direct review may be had in

the Supreme Court.’’ Our task, thus, must be to determine

whether the refusal to certify a class action constitutes a final

decision. A final decision is not necessarily ‘‘the last order

possible to be made in a case . . .’;* however, to be ‘‘final’” it

must have the effect of resolving litigation on the merits. We

have been instructed by the Supreme Court to give a flexible

interpretation to ‘‘final decision’? when used in the context of

section 1291. As a result, the requirements of finality must be

742 U.S.C. § 2000e-16.

’ The District Court refused a request to certify the question for

appeal under 28 U.S.C. § 1292(b) on 10 October 1973.

‘ Gillespie v. United States Steel Corp., 379 U.S. 148, 152, 85

S.Ct. 308, 311, 13 L.Ed.2d 199 (1964).

13a

given a ‘‘practical rather than a technical contructin.’’’ ‘‘The

inquiry requires some evaluation of the competing considera-

tions underlying all questins of finality—‘the inconvenience

and costs of piecemeal review on the one hand and the

danger of denying justice by delay on the other.’ Dickinson v.

Petroleum Conversion Corp., 338 U.S. 507, 511 [70 S.Ct.

322, 324, 94 L.Ed. 299] (1950) (footnote omitted).’’®

[2] Applying this analysis, it becomes apparent that an

order refusing to certify a class action is generally not a final

decision within the meaning of section 1291.’ It does not

dispose of litigation. It is purely procedural in nature, in that

it determines merely the parties to the action without express-

ing any judgment as to the merits of the case. Moreover, the

correctness of the District Court’s determination does not

evade review since it, along with other prcedural decisions, is

brought up on appeal after final disposition on the merits.

[3,4] Having stated the general rule two qualifications

must be made and their relevance considered. First, it must

be recognized that in some types of cases the refusal to certify

a Classification, as a practical matter, does dispose of the ac-

tion. This is because the plaintiff has such a small monetary

* Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546,

69 S.Ct. 1221, 1226, 93 L.Ed. 1528 (1949).

* Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 171, 94 S.Ct. 2140,

2149, 40 L.Ed.2d 732 (1974).

” Caceres v. International Air Transport Assoc., 422 F.2d 141

(2nd Cir. 1970); City of New York v. International Pipe &

Ceramics Corp., 410 F.2d 295 (2nd Cir. 1969); Hackett v. General

Host Corp., 455 F.2d 618 (3rd Cir.), cert. denied, 407 U.S. 925, 92

S.Ct. 2460, 32 L.Ed.2d 812 (1972); Lamarche v. Sunbeam Televi-

sion Corp., 446 F.2d 880 (Sth Cir. 1971); Siebert v. Great Northern

Dev. Co., 494 F.2d 510 (Sth Cir. 1974); Walsh v. City of Detroit,

412 F.2d 226 (6th Cir. 1969)(order permitting class action); King v.

Kansas City So. Indus., Inc., 479 F.2d 1259 (7th Cir. 1973); Thill

Sec urities Corp. v. New York Stock Exchange, 469 F.2d 14, 17

(7th Cir. 1972)(denial of a motion to strike clas action allegations);

Gerstle v. Continental Airlines, Inc., 466 F.2d 1374 (10th Cir.

1972).

l4a

or other interest to be vindicated in the action that it would

not be worth the plaintiff’s time to continue the actin. In a

series of recent cases, the Second Circuit has developed a

body of law relating to this type of case, commonly referred

to as the ‘‘Death Knell’’ doctrine. Secondly, in some cases a

subsidiary controversy develops as an offshoot of the main

litigation. A decision disposing of such an offshoot may be

held to be a final decision even if the decision if procedural in

nature, if it appears likely that the matter would evade review

if taken on appeal after a final disposition of the entire litiga-

tion. This has been called the Collateral Order doctrine. We

turn now to examine both doctrines in more detail

A. The Applicability of the ‘‘Death Knell’’ Doctrine

The ‘‘Death Knell’’ doctrine was developed in the Second

Circuit in the crucible of Eisen v. Carlisle & Jacquelin. In

Eisen I* the Second Circuit denied a motion to dismiss an ap-

peal from a District Court order refusing to certify a class ac-

tion. In that case, Eisen sued on behalf of himself and all

odd-lot purchasers and sellers on the New York Stock Ex-

change alleging antitrust and Securities Act violatins. Eisen’s

claim for damages was only for $70.00. Appropriately

enough, the court noted:

We can safely assume that no lawyer of competence is

going to undertake this complex and costly case to

recover $70 for Mr. Eisen. . . . If the appeal is dismissed,

not only will Eisen’s claim never be adjudicated, but no

appellate court will be given the chance to decide if this

class action was proper under the newly amended Rule

23 [Federal Rules of Civil Procedure].’

The Second Circuit faced the same issue soon thereafter in

Green v. Wolf Corp. Plaintiff Green and the members of the

class alleged that they had been required to pay an excessive

* 370 F.2d 119 (1966), cert. denied, 386 U.S. 1035, 87 S.Ct. 1487,

18 L.Ed.2d 598 (1967).

* 370 F.2d at 120.

15a

price for certain publicly held securities. As the court noted,

‘*Green obviously does not intend to press what will probably

be an enormously complex and expensive action to recoverless

than $1,000.’’'® In two cases consolidated under the title Korn

v. Franchard Corp.,'' the court decided that Mrs. Korn’s suit

for violations of the federal securities laws and for violations

of New York law ‘‘will go no further without class suit

designatin.’’ Because Mrs. Korn’s losses amounted to $386,

the Second Circuit denied a motion to dismiss an appeal de-

nying class actin certification. However, in the companion

case the actual claims of the representative plaintiffs were for

about $8,500. The court concluded, ‘‘[t]hat figure is close

enough to the federal jurisdictional minimum for certain

types of cases to suggest it is sufficient incentive to keep the

case alive.’’'? Accordingly, the ‘‘Death Knell’’ doctrine was

inappropriate in that case and the appeal was dismissed.

In this case, it is clear that both Bostick and Williams

have a sufficient incentive to continue this suit. Williams in

his original complaint requested reinstatement in his former

position. Today Williams in addition would be entitled to ap-

proximately two and a half years’ back pay should be

prevail,'? an amount which we can safely assume is greatly in

'° 406 F.2d 291, 295 n. 6 (1968), cert. denied, 395 U.S. 977, 89

S.Ct. 2131, 23 L.Ed.2d 766 (1969).

'' 443 F.2d 1301 (2nd Cir. 1971).

'? 443 F.2d at 1306-07. More recently, the ‘‘Death Knell’’ doc-

trine has been specifically rejected by the Seventh Circuit, King v.

Kansas City So. Indus., Inc., 479 F.2d 1259 (7th Cir. 1973), and

criticized by the Third Circuit, Hackett v. General Host Corp., 455

F.2d 618 (3rd Cir.), cert. denied, 407 U.S. 925, 92 S.Ct. 2460, 32

L.Ed.2d 812 (1972). However, the vitality of the doctrine has been

reasserted by the Second Circuit. General Motors Corp. v. City of

New York, 501 F.2d 639 (1974); Kohn v. Royall, Koegel & Wells,

496 F.2d 1094 (1974); Herbst v. International Tel. & Tel. Corp.,

495 F.2d 1308 (1974); Shayne v. Madison Square Garden Corp.,

491 F.2d 397 (1974).

'?42 U.S.C. § 2000e-5(g), made applicable to the Federal

Government by 42 U.S.C. § 2000e-16(d).

l6a

excess of $10,000.00. As to Bostick, the request is for a

higher GS rating, which he alleges was improperly denied

him. In addition, it should be noted that the Equal Employ-

ment Opportunity Act amendments specifically provided for a

reasonable attorney’s fee for the prevailing party at the

discretion of the court in just this type of case.'* It certainly

'*42 U.S.C. § 2000e-5(k), made applicable to the Federal

Government by 42 U.S.C. § 2000e-16(d).

Hackett v. General Host Corp., 455 F.2d at 622)23:

Thus the ‘‘death knell’’ rule would operate only in that nar-

row category of cases where the object of the suit is the

recovery of money damages, and where a statute affords

federal jurisdiction regardless of amount. This narrow category

is, however, significant for consumer advocates. But even in

this field, the ‘‘death knell’’ rationale, based upon the assump-

tion that no competent lawyer would undertake a complicated

case to recover a small amount of money, must be qualified by

several considerations. A number of federal statutes provide

for the award of counsel fees and costs.’ Indeed the statute

under which 3. E.g. statutes providing for damages arising

from the following improper actions, a single instance of which

may harm individual members of large clases, additionally pro-

vide that successful plaintiffs’ attorneys shall be awarded

reasonable attorneys’ fees and costs: Failure to disclose under

the Truth in Lending Act 15 U.S.C. § 1640 (1971); Unlawful

wiretapping, 18 U.S.C. § 2520 (1971). Other statutes place the

decision of whether to allow reasonable attorneys’ fees and

costs within the discretion of the district court: Securities Acts

Violations; 15 U.S.C. §§ 77k, 77www; 78i (1971). See also 28

U.S.C. § 2678 (1971) providing for reasonable attorneys’ fees

in suits involving torts committed by the Federal Government

where its immunity has been waived.

Mrs. Hackett sues contains such a provision. 15 U.S.C. § 15

(1971). If the ‘‘death knell’’ is to ring for her case the rope is

in her attorney’s hand. There is no certain basis for the

assumption that an interested holder of a small claim will be

unable to prevail upon a private attorney to pursue that claim

in the hope of being compensated by the award of ‘‘reasonable

counsel fees’’ against a wrongdoer. Moreover the burgeoning

in recent years of interest in publicly supported legal service

organizations and of private support for legal aid and public

interest law firms cannot be disregarded.‘ Many small but im-

17a

may be questioned whether the ‘‘Death Knell’’ doctrine can

ever be applied to a case where attorney’s fees are available to

the prevailing party.'*

B. The Applicability of the Collateral Order Doctrine

The Collateral Order doctrine had its origins in the

Supreme Court case of Cohen v. Beneficial Industrial Loan

Corp.,'® in which the Court considered the constitutionality

of requiring a plaintiff in a New Jersey federal court to post

bond to insure payment of defendant’s attorney’s fees as re-

quired by New Jersey statute. The case was ‘‘too important

to be denied review and too independent of the cause itself to

require that appellate consideration be deferred until the

whole case is adjudicated.’’'’ In Cohen the interlocutory

order being appealed was effectively immune from review

after judgement. If the District Court’s decision not to apply

the New Jersey statute were not reviewable at that point, the

defendant would, as a practical matter, be denied any protec-

tion under the statute. Eisen III'* is a more recent application

of the same doctrine. The District Court decided that the

defendants would be required to bear 90% of the cost of

notice to the plaintiff class of odd-lot buyers and sellers. Ob-

viously, even if the defendants could have theoretically sought

to collect their outlay had they prevailed, there would be little

practical possibility of collecting over $20,000 from the over

two million members of the class. As the Supreme Court

noted on appeal from Eisen III:

portant 4. See Note, The New Public Interest Lawyers, 79 Yale

L.J. 1068 (1970). claims heretofore, for purposes of litigation,

beyond the pale of financial practicability, have been suc-

cessfully litigated by such organizations in recent years. Thus

an adverse class action decision may ring out as a death knell

on far fewer occasions than superficial analysis would suggest.

'© 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).

'’ 337 U.S. at 546, 69 S.Ct. at 1226.

'* Eisen v. Carlisle & Jacquelin, 479 F.2d 1005 (2nd Cir. 1973),

affirmed on this issue, 417 U.S. 156, 94 S.Ct. 2140, 2150, 40

L.Ed.2d 732 (1974).

18a

Analysis of the instant case reveals that the District

Court’s order imposing 90% of the notice cost on

respondents likewise falls within ‘‘that small class [of

decision which finally determine claims of rights

separable from, and colateral to, rights asserted in the

action, too important to be denied review and too in-

dependent to the cause itself to require that appelate con-

sideration be deferred until the whole case _ is

adjudicated].’’ It conclusively rejected respondents’ con-

tention that they could not lawfully be required to bear

the expense of notice to the members of the petitioner’s

proposed class. Moreover, it involved a collateral claim

unrelated to the merits of the petitioner’s claims. Like

the order in Cohen, the District Court’s judgment on the

allocation of notice cost was ‘‘a final disposition of a

claimed right which is not an ingredient of the cause of

action and does not require consideration with

S299

i

[5] In this case, the refusal to certify a class action did

not determine collateral claims completely independent of the

merits of the case. The order is indistinguishable from other

procedural determinations made in the course of discovery

and trial. No funds were required to be expended as in Eisen,

nor rights granted under independent statutes to be dispensed

with as in Cohen. Above all, the correctness of the District

Court’s decision is subject to effective review on appeal from

final judgement. We hold, in conclusion, that the District

Court’s refusal to certify a class action in this case did not

constitute the ‘‘Death Knell’’ of the action nor was it a col-

lateral and independent determination. Therefore, the deci-

sion was not a ‘‘final’’ one within the meaning of section

1291.

'°417 U.S. at 172, 94 S.Ct. at 1250.

19a

Il. APPEALABILITY UNDER 28 U.S.C. §§ 1292(a)(1)

In the alternative, appellants contend that this court has

jurisdiction over this appeal under 28 U.S.C. ** 1292(a)(1)

which provides:

The courts of appeals shall have jurisdiction of appeals

from: (1) Interlocutory orders of the district courts gran-

ting, continuing, modifying, refusing or dissolving in-

junctions, or refusing to dissolve or modify injunctions,

except where a direct review may be had in the Supreme

<a

It is argued that the net effect of the refusal to certify a class

action is consierably to narrow the scope of any possible in-

junction relief in the event plaintiffs ultimately prevail on the

merits. Appellants cite in support of their position two cases

from other Circuits: Brunson v. Board of Trustees?’ and Yaf-

fee v. Powers.’' Both cases are premised on the assumption

that the refusal to certify a class action, since it would even-

tually affect the scope of equitable relief, itself constituted a

modification of or a refusal to issue an injunction. We view

this as an unwarranted expansion of the statutory language.

By analogy to the reasoning of these courts, most procedural

motions in an action requesting equitable relief would be ap-

pealable by either party. In this view we are supported by the

Second Circuit. In its opinion in City of New York v. Inter-

national Pipe and Ceramics Corp.” it rejected the argument

that a refusal to certify a class action is appealable under sec-

tion 1292(a)(1). The court noted, as do we, that the denial of

9311 F.2d 107 (4th Cir. 1962)(per curiam), cert. denied, 373

U.S. 933, 83 S.Ct. 1538, 10 L.Ed.2d 690 (1963).

*! 454 F.2d 1362 (Ist Cir. 1972). Since briefs were filed in this

case, the Ninth Circuit has decided that the dismissal of a class ac-

tion with leave to amend without class action allegations was ap-

pealable under section 1292(a)(1), Price v. Lucky Stores, Inc., 501

F.2d 1177 (1974).

7 410 F.2d 295 (2nd Cir. 1969).

20a

class action treatment constitutes neither issuance nor denial

of an injunction.’

Although this precise question has never been presented

to the Supreme Court, the Court has had to consider the

scope of the injunc tion exception to the final judgment rule.

In Switzerland Cheese Association, Inc. v. E. Horne’s

Market, Inc.,** the Court held that the denial of a plaintiff’s

motion for summary judgment seeking injunctive relief was

not a denial or refusal of an injunction within the meaning of

section 1292(a)(1). This was because

the denial of a motion for a summary judgment

because of unresolved issues of fact does not settle or

even tentatively decide anything about the merits of the

claim. It is strictly a pretrial order that decides only one

thing — that the case should go to trial. Orders that in

no way touch on the merits of the claim but only relate

to pretrial procedures are not in our. view

‘tinterlocutory’’ within the meaning of § 1292(a)(1).’°

Although it is difficult to reconcile all of the case law inter-

preting section 1292(a)(1),?° it would appear that the Supreme

?> The Court also stated that ‘‘[t]he cases cited by the City deal-

ing with injunctive relief sougiit by school children to prevent

discrimination on the ground of race have no application here.’’

410 F.2d at 299. The opinion offers us no further elaboration.

4 385 U.S. 23, 87 S.Ct. 193, 17 L.Ed.2d 23 (1966).

$385 U.S. at 25, 87 S.Ct. at 195.

26 See, e.g., Enelow v. New York Life Insurance Co., 293 U.S.

379, 55 S.Ct. 310, 79 L.Ed. 440 (1935); Ettleson v. Metropolitan

Life Insurance Co., 317 U.S. 188, 63 S.Ct. 163, 87 L.Ed. 176

(1942); City of Morgantown v. Royal Insurance Co., 337 U.S. 254,

69 S.Ct. 1067, 93 L.Ed. 1347 (1949); Baltimore Contractors, Inc. v.

Bodinger, 348 U.S. 176 (1955). In Enelow and Ettleson it was held

that where the plaintiff’s action was originally cognizable in law, a

procedural motion deciding that defendant’s equitable defenses

should be tried first was held to be an appealable order under sec-

tion 1292(a)(1)’s predecessor. On the other hand, in City of

Morgantown and Baltimore Contractors it was held that when the

2la

Court in Switzerland Cheese has opted for a narrow construc-

tion of the statutory language. Although an order denying

class action certification might at some later stage have an ef-

fec t on the scope of equitable relief, such orders ‘‘in no way

touch on the merits of the claim’’ and thus fall outside of the

scope of the section.

Conscious as we are of our responsibility to maintain the

jurisdictional balance drawn by the Congress under sections

1291 and 1292, we are particularly reticent to expand upon

Statutory language which was intended as a limited exception

to the final judgment rule.?”? We emphasize that the District

plaintiff’s action was one cognizable in equity and the defendant’s

counterclaim was either one in law (City of Morgantown) or one in

equity (Baltimore Contractors), the trial court’s decision as to the

order of the proceedings was interlocutory in form and substance

and was not appealable under section 1292(a)(1). Of course, the im-

portance of these decisions, as a practical matter, has been undercut

by Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948,

3L.Ed.2d 988 (1959), and its progeny. However, these cases do give

some indication of the meaningless distinctions which continue to

be given some currency in this area of the law.

*? In Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 75

S.Ct. 249, 99 L.Ed. 233 (1955), the Supreme Court discussed in

some detail the legislative history of section 1292. Specifically, the

Court discussed the fundamental policy determinations underlying

the statute:

The Congress is in a position to weigh the competing interests of

the dockets of the trial and appellate courts, to consider the prac-

ticability of savings in time and expense, and to give proper weight

to the effect on litigants. When countervailing considerations arise,

interested parties and organizations become active in efforts to

modify the appellate jurisdiction. This Court, however, is not

authorized to approve or declare judicial modification. It is the

responsibility of all courts to see that no unauthorized extension or

reduction of jurisdiction, direct or indirect, occurs in the federal

systems. . . . Any such ad hoc decisions disorganize practice

by encouraging attempts to secure or oppose appeals with the con-

sequent waste of time and money. The choices fall in the legislative

domain. They are enlargement of the allowable list of appealable

interlocutory orders; abandonment of fragmentary appeals; or

22a

Court did not state that the claim for an injunction had no

merit, nor that it lacked jurisdiction to grant an injunction,

nor even did it express any opinion as to whether injunctive

relief was warranted at any particular point in the pro-

ceedings. The District Court denied certification of a class ac-

tion under Rule 23, Federal Rules of Civil Procedure, a quite

distinguishable action. As a result, appellants have failed to

bring the order within the only arguably relevant exception to

the final judgment rule, 28 U.S.C. § 1292(a)(1).

The appeal must therefore be dismissed.

Before BAZELON, Chief Judge, and WRIGHT, MCGOWAN,

TAMM, LEVENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY,

Circuit Judges.

ORDER

PER CURIAM.

It appearing that appellants’ suggestion for rehearing en

banc and amicus curiae’s suggestion for rehearing en banc

having been transmitted to the full Court and there not being

a majority of the Judges in regular active service in favor of

having this case reheard en banc, it is

Ordered by the Court en banc that the aforesaid sugges-

tions for rehearing en banc are denied.

Statement of Circuit Judge SpoTTSwooD W. ROBINSON,

Il, with whom Chief Judge BAZELON and Circuit Judges J.

SKELLY WRIGHT and LEVENTHAL join, as to why they would

grant rehearing en banc.

Spottswoop W. Rosinson, III, Circuit Judge:

It is hardly necessary in this age to argue the worth of

the class action in our ever-expanding system or

general allowance of such appeals in the discretion of the trial judge

upon findings of need, with or without the consent or approval of

the appellate court.

348 U.S. at 181-82, 75 S.Ct. at 252 (footnote omitted).

23a

jurisprudence. Over the years it has promoted the conve-

nience of courts and parties infinitely, reduced the expense of

lawsuits incalculably, and the contributed immeasurably to ef-

ficient judicial administration. It has, too, made its mark on

the deveiopment of the law. The reports are dotted with land-

mark cases which without benefit of representative litigation

would never have seen the light of day.

Even more profoundly, the class action has provided ac-

cess to the judicial process for those who need it most. It has

been the refuge of the poor, the hope of the downtrodden,

and the salvation of the many whom our social institutions all

too frequently victimize, unwittingly or otherwise. Truly it is

said that ‘‘[t]he class action is one of the few legal remedies

the small claimant has against those who command the status

quo.’””!

In sum, as two leading authorities have aptly observed,

‘‘[iJt now is apparent that the increasing complexity and ur-

banization of modern American society has tremendously

magnified the importance of the class action as a procedural

device for resolving disputes affecting numerous people.’”?

And since class-action litigation could be chilled by nonap-

pealability of denials of certifications save in narrowly limited

circumstances, it is highly important to ascertain whether the

panel’s decision to that effect is correct.’ The importance of

the question is underscored by the number of decisions it has

generated in other circuits, and the difficulty of the problems

by the conflict of opinion which plagues them.‘

' Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 186, 94 S.Ct. 2140,

2156, 40 L.Ed.2d 732, 748 (1974) (Douglas, J. dissenting).

*7 C. Wright & A. Miller, Federal Practice § 1751, at 510 (1972).

* Rehearing en banc is warranted ‘‘when the proceeding involves

a question of exceptional importance.’’ Fed.R.App.P. 35(a)(2).

* See Yaffee v. Powers, 454 F.2d 1362, 1364-1365 (Ist Cir. 1972);

Caceres v. International Air Transport Ass’n, 422 F.2d 141,

142-144 (2d Cir. 1970); City of New York v. International Pipe and

Ceramics Corp., 410 F.2d 295, 298-299 (2d Cir. 1969); Rodgers v.

United States Steel Corp., 508 F.2d 152, 159-161 (3d Cir. 1975);

24a

1 would, accordingly, grant rehearing of this case en

banc. That is not necessarily to say that the panel reached the

wrong result. It is to say, however, that in my view the matter

calls for consideration and decision by the full court.

Hackett v. General Host Corp., 455 F.2d 618, 621-626 (3d Cir.),

cert. denied, 407 U.S. 925, 92 S.Ct. 2460, 32 L.Ed.2d 812 (1972);

Brunson v. Board of Trustees, 311 F.2d 107, 108-109 (4th Cir.

1962), cert. denied, 373 U.S. 933, 83 S.Ct. 1538, 10 L.Ed.2d 690

(1963); Lamarche v. Sunbeam Television Corp., 446 F.2d 880 (Sth

Cir. 1971); Siebert v. Great Northern Dev. Co., 494 F.2d 510, 511

(Sth Cir. 1974); Walsh v. City of Detroit, 412 F.2d 226, 227 (6th

Cir. 1969); King v. Kansas City Southern Indus., 479 F.2d 1259,

1260 (7th Cir. 1973); Thill Sec. Corp. v. New York Stock Ex-

change, 469 F.2d 14, 15-17 (7th Cir. 1972); Price v. Lucky Stores,

501 F.2d 1177, 1179 (9th Cir. 1974); Gerstle v. Continental Airlines,

466 F.2d 1374, 1377 (10th Cir. 1972).

25a

Second District Court Decision

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 72-1633

Rosert L. Bostick, Plaintiff,

v.

DANIEL J. Boorstin, Defendant.

Judgment

Filed September 13, 1978

For reasons more fully stated in the attached Memoran-

dum, Findings of Fact, and Conclusions of Law, it is this

12th day of September 1978, hereby

ORDERED and ADJUDGED that JUDGMENT should be and is

entered for DEFENDANT.

/s/ Louis T, OBERDORFER

United States District

Judge

26a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 72-1633

Rosert L. Bostick, Plaintiff,

Vv.

DANIEL J. BoorstiIn, Defendant.

Memorandum, Findings Of Fact, And Conclusions Of Law

Filed September 13, 1978

Plaintiff, Robert L. Bostick, is employed by the Library

of Congress as a visual information specialist, grade GS-13.

In this action he alleges that officials at the Library have

discriminated against him by failing to promote him, or to

reclassify his position, to grade GS-15 in violation of Title

VII of the Civil Rights Act of 1964 as amended by the Equal

Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-2,

et seq. Specifically, he argues that the managers of the

Library discriminated against him on the basis of race (1) in

refusing his request that his position be reclassified to GS-15,

(2) in de-emphasizing certain of his duties in connection with

a classification audit of his position, (3) in refusing to assign

additional duties to him in order to entitle him to an

‘‘automatic promotion plan’’ available to other employees,

and (5) in failing to make him a beneficiary of the Library’s

affirmative action program. The Library counters that none

of the decisions affecting Bostick were motivated by con-

sideration of race, and that Bostick is classified as the highest

grade level permitted by Civil Service Commission guidelines

for someone performing the duties which Bostick performs.

For the reasons stated in the Findings and Conclusions

which follow, the Court concludes that Bostick has failed to

27a

prove discrimination on the basis of race. Accordingly, judg-

ment will be entered for the Library.'

I. FINDINGS OF FACT

A. Bostick’s Early Experience at the Library

Bostick is a high school graduate. He has taken post-high

school courses in graphic analysis and visual information, but

has earned no advanced degrees. He began his employment at

the Library in mid-February 1947 as a graphic information

specialist, in the General Research Section. No GS level was

assigned to the position yntil the spring of that year. Until a

grade assignment was made, Bostick was paid at the hourly

rate of a CAF-11. Bostick was subsequently transferred to the

Legislative Research Service (LRS) [later renamed Congres-

sional Research Service (CRS)}] where he has remained

employed until the present.

During the period 1947 through 1950, Bostick very ably

developed the graphic service of the Library from its incep-

tion to an efficiently organized program that successfully met

every demand for illustrative material. The demand for

graphic services increased steadily and in April 1950, a

graphic analyst was appointed to work with Bostick. Shortly

thereafter, despite the increased work load, LRS dismissed

' Bostick’s complaint was originally filed with Joslyn Williams as

co-plaintiff. Together they sought to represent all black employees

of the Library since 1960, in an action challenging a variety of

employment practices. Their motion for class certification,

however, was denied, and separate trials were ordered. Williams v.

Munford, No. 1633-72 (D.D.C., Aug. 20, 1973), appeal dismissed,

511 F.2d 363 (D.C. Cir. 19750 (rehearing en banc denied), cert.

denied, 423 U.S. 828 (1975).

Throughout this proceeding, Bostick’s counsel has repeatedly

sought reconsideration of class certification. It has long been ap-

parent that Bostick occupied a unique position at the Library, and

that the issues raised by his reclassification request are not typical

of the class members he sought to represent. Accordingly, the

Court has refused to reconsider the question of class certification.

28a

Bostick’s assistant. Since that time, Bostick has worked

without in-house assistance.

In September 1952, Bostick requested that his position be

reclassified to grade GS-12 to reflect a change in his job

duties and an increase in his performance. In March 1953,

LRS submitted Bostick’s reclassification request to the

Classification Office within the Library. In April 1953, the

Classification Office informed Bostick that his request had

been denied because his position was correctly classified as

GS-11. In May 1953, the Library’s Classification Officer

wrote to the Civil Service Commission (CSC) to clarify the

distinctions between the CSC classification standards for the

grades GS-11 and GS-12 in Bostick’s series. In late July 1953,

the CSC ruled that Bostick’s position was correctly allocated

at grade GS-11.

In September 1953, the Library’s Director of Personnel

and the Library’s Classification Officer wrote to the CSC in

support of the reclassification of Bostick’s position. They

spoke very highly of Bostick, his work, and his respon-

sibilities. The evidence at trial indicates that their assessments

are as accurate today as they were then. They stated:

* * *

Based on study of the grade GS-11 and GS-12 stan-

dards for Illustrator (General), GS-1020, it seems to us

that the duties and responsibilities outlined in the

description may be properly allocable to grade GS-12.

The following are factors, we believe, that should be

considered: (a) As demonstrated by the exhibits, there

has been a steady increase in the complexity of

assignments since the last allocation in April 1948 which

complexity we do not believe was present at that time.

(b) The demand for graphic analysis by Members and

Committees of Congress has increased almost to the ex-

clusion of work for the staff of the Legislative Reference

Service or of the Library. (c) The consultative element in

the position has increased to the point where Mr. Bostick

29a

is consulted by Members on points of graphic presenta-

tion in much the same way as analysts in their respective

fields in the Legislative Reference Service. In addition, in

many instances, perhaps even the greater number, the

presentation is left completely to his own discretion.

We wish to point out again that Mr. Bostick carries

Out his assignments without any technical supervision.

When he receives requests for graphic presentation of a

topic, he analyzes and inteprets data presented. He is fre-

quently called upon to see that the initial data to be

graphically presented is collected. If established

authoritative sources exist, he gathers the data himself; if -

the services of an expert in a particular field are required,

he relies upon the appropriate staff member to collect

and evaluate necessary information.

. . » One of the factors in the recent development of the

position has been the major shift of activity from work

for other members of the Legislative Reference Service

who do work for Congress to work, primarily, directly

for Members and Committees of Congress. Thus, in a

real sense the incumbent of the position acts as a top

specialist and advisor for Congress as do the senior

specialists and other high level specialists of the Library

in other fields. ... The personal contacts, the impor-

tance and effect of the work performed and the in-

dependence of operation which these facts imply cannot

be overly emphasized.

. . + We would also liken this position to the position

described in the GS-12 standards as the top specialist for

an agency. In this case, in a real sense, Congress is the

agency whose graphic work he advises on or performs

and at times directs.

* * *

30a

Nevertheless, in March 1954, the CSC informed the Library

that Bostick’s position was appropriately graded at GS-11.

Bostick appealed the CSC’s decision to the CSC Board

of Appeals and Review, and in late February 1955, the Board

informed Bostick that his position was properly classified at

the GS-11 level.

On July 21, 1955, Bostick submitted another reclassifica-

tion request to LRS, together with a draft description of his

job. LRS forwarded the request to the Library’s Classifica-

tion Office in February 1956. On August 16, 1957, the

Library wrote to the CSC concerning the reclassification of

Bostick’s position. On September 15, 1958, the CSC replied

that the Library had the authority to increase the grade of

Bostick’s position. In November 1958 the Classification Of-

fice determined to reclassify Bostick’s position to GS-12 and

the Librarian of Congress took the unusual action of per-

sonally visiting Bostick to review his work. On December 1,

1958, the Library reclassified Bostick’s position to GS-12.

On February 8, 1961, Bostick asked Dr. Hugh Elsbree,

the Director of LRS, about the possibility of reclassifying his

position to a higher grade. In late August 1963, LRS sent to

the Classification Office various papers submitted by Bostick

in support of his request for reclassification to GS-13, and

specifically requested early attention to Bostick’s reclassifica-

tion request. In December 1963, Mr. Clarence Witt of the

Classification Office interviewed Bostick. In March 1964 the

Classification Office interviewed Bostick. In March 1964 the

Classification Office refused the request; Bostick’s position

was ‘‘redescribed’’ at the same GS-12 level.

In April 1964 Bostick filed a written position classifica-

tion appeal with the Library’s Assistant Director of Person-

nel. In early April 1965 Bostick’s position was reclassified to

GS-13 on the basis of an ‘‘incumbency allocation.’’? This

> “‘Incumbency allocation’’ refers to the classification of a posi-

tion at a higher than normal level because of the impact the par-

ticular strengths of the incumbent has on the job.

3la

reclassification was explained at trial by Lester S. Jayson.

From the early 1960’s until his retirement from the Library in

the mid-1970’s, Jayson served first as Deputy Director, and

subsequently, as Director of CRS.’ Jayson took a personal in-

terest in Bostick’s case. Together with Burnish Walker, then

Executive Officer of CRS,‘ Jayson was responsible for the use

of an incumbency allocation in Bostick’s case. He turned to

this seldom employed device because he was aware that

Bostick was at the full performance level for the visual infor-

mation series, 1084, and because he knew that the CSC had

on previous occasions ruled that GS-12 was the highest grade

that Bostick’s duties would support.

B. The Refusal to Reclassify at Issue in this Suit

In the third week of April 1971 Walker sent Bostick a

memorandum stated that, to his knowledge, Bostick’s posi-

tion description had not been reviewed recently. The

memorandum requested Bostick’s comments on the accuracy

and currency of the description of his position. By memoran-

dum dated May 20, 1971, Bostick responded that, indeed, he

did disagree with the position description. He argued that his

responsibilities were substantially equal to those of other

“*specialists’’ in the CRS who are graded at GS-15:

* * *

I submit that the duties and responsibilities of the

Visual Information Specialist are comparable to those

Outlined in the CRS job description for **Specialist,

GS-15’’ as it relates to:

1. Nature and Purpose of work, including

A. Introduction, and B. Duties

2. Scope and Effect of Work

’ Jayson was named by Bostick as one of the Library officials

alleged to have discriminated against him on the basis of race.

‘ Walker is another official alleged to have discriminated against

Bostick on the basis of race.

32a

3. Supervision and Guidance Received

4. Mental Demands

5. Personal Work Contacts

It should be noted, however, that since the

incumbent’s position was last reviewed, an additional ele-

ment has been added: As the workload demands, and

depending upon the availability of funds, the Visual In-

formation Specialist prepares layouts, specifications and

directions for the preparation of visual information

material by private commercial, specialists on a contrac-

tual basis. The incumbent has responsibility to review

finished products, and to accept, reject or modify such

visual material prior to delivery to Congressional offices.

I further assert that the product of the other specialists

is the written presentation, while that of the incumbent is

the visual presentation. ...

In June 1971 Walker requested from James Robinson a

detailed description of Bostick’s duties. During the early

1970’s Robinson served with the CRS as the Coordinator of

Research. He was responsible for the review and quality con-

trol of all outgoing CRS work, and he personally reviewed

the work product of the entire CRS staff. He had day-to-day

contacts with Bostick, and was familiar with the scope and

nature of his work. Robinson was a forthright and credible

witness who testified that he did the best he could to describe

Bostick’s position fairly and accurately. The memorandum

Robinson submitted to Walker states:

.. . [The CRS graphics] program combines the work of

(Visual Information Specialist) Mr. Bostick, the contract

service of Art Services, Inc. and often the supporting in-

formational services of the analysts of the CRS subject

divisions. ...

In terms of fanfold requests, the graphics workload

has been divided roughly equally between Mr. Bostick

33a

and Art Services ... It should be noted that a fanfold

request can vary in content from a simple mounting job

or the lettering of a certificate to a complex map with

multiple overlays or a series of 9 graphs. Both have had

fanfold requests covering this range. In terms of cost to

the service for this 49 week period [June 1970 — May

1971], CRS has paid Art Services $4,979 in contract job

changes, and paid Mr. Bostick $19,500 in gross wages.

Though some project requests are received directly

from Congressional offices by Mr. Bostick, the front of-

fice receives the bulk of these requests and I assign them.

Assignment criteria are as follows: If Mr. Bostick’s

backlog is such that he can meet the deadline and no

special photographic equipment is needed to complete the

assignment, the request is assigned to Mr. Bostick; his

cost to the Service is fixed and the quality of his work is

excellent. In instances where the deadline is very short (a

common occurance) or when substantial technical equip-

ment is needed, or when Mr. Bostick’s time is fully

scheduled, or at his request, I assign the project to Art

Services. Occasionally, but not often, a job will be split;

i.e., Mr. Bostick consulting with the Congressional office

and doing a conceptual sketch, and Art Services render-

ing the finished work. Such instances normally arise

either when the job is sufficiently complex that graphics

consultation is indicated, but working time is short, or

when Mr. Bostick has begun routine assignments that he

cannot finish in time to meet the deadline . . . When Mr.

Bostick is absent or hurrying to finish a priority assign-

ment, I have called upon Art Services to provide graphics

consultation to Congressional requesters (in my

presence); this alternative has proven quite successful.

The Art Services graphics consultant and specialist nor-

mally used is Mr. Brown whose services are charged to

CRS at the rate of $10.50 per hour, and whose pay scale

is $7.00 per hour.

34a

Within this general framework, Mr. Bostick’s actual

work month typically includes the following professional

services: reception of graphics requests from Congres-

sional offices by phone or in person; writing up such re-

quests in standard CRS format; advising inquiring CRS

analysts, Members and their staffs as to sound and ex-

ploitable graphics techniques and possibilities applicable

to their purposes, executing a broad range of visual,

graphic, design, geometric and artistic skills in the form

of statistical or organizational charts, lettered tables,

maps, illustrations, inscriptions, in ornamental lettering

styles, layouts ready for the printer, and visual informa-

tional presentations for inclusion in the Congressional

Record, hearings, reports, CRS monographs and com-

mittee prints; maintaining a working knowledge of and

relationship with certain other Library divisions such as

the Map Division, Photoduplication Service and Prints

and Photographs; securing from CRS analysts the re-

quisite economics, military, demographic, political or

other specialized data for completion of assignments; the

translation of these data and other information supplied

by requesting offices into visually effective and accurate

graphic forms. Since Mr. Bostick works without

technical supervision or in-house graphics assistance, a

good deal of his time is taken up by self-checking and

proofing of his own work... . In large measure the op-

tion of utilizing out-of-house contract services has reduc-

ed the workload pressures and schedule demands upon

Mr. Bostick without imposing significant supervisory or

administrative duties upon him. This three-sided arrange-

ment has since its inception a year ago been productive,

harmonious and flexible enough to respond to the ex-

treme variation of graphic services requested and the

shifting volume flow typical of our enterprise at CRS.

In response to questions arising on occasion: (a) Art

Services .. . can perform nearly all of the services pro-

vided by Mr. Bostick except his continued liaison with

35a

other departments of the Library. They would, of

course, lack his personal acquaintance with a number of

Congressional staff personnel and some Members, and

could not be expected to provide the flexibility and con-

venience of a qualified in-house artist, (b) in terms of

analytical work, Mr. Bostick frequentiy performs

graphics analysis and computational tasks of a quite

sophisticated nature; he is rarely, if ever, called upon to

do economic, social, scientific or other forms of subject

discipline analysis. Indeed this would be counterproduc-

tive in that CRS retains highly trained specialists

specifically for such analytical duties, and they are ex-

pected to provide data and services for Congress through

a graphics specialist on a priority basis equal to that for

direct requests.

From August 1971 to May 1972 Bostick and CRS of-

ficials engaged in a protracted and ultimately unsuccessful

endeavor to write a position description which would be ac-

ceptable to both Bostick and his CRS supervisors. In early

May 1972 CRS sent a draft description of Bostick’s position

to the Classification Office with a request that his position be

reviewed. Jayson testified that he specifically recommended io

the Library’s Classification Officer that Bostick’s position

receive the highest grade to which it was entitled under CSC

standards in light of the duties which Bostick performed. The

CRS referral was prepared by Basil T. Owens, then Assistant

Executive Officer of CRS under Walker. It recommended

that Bostick’s position be awarded

the highest possible allocation consistent with the work

he performs as measured against Civil Service standards

applicable to his occupational series.

On April 20, 1972, Bostick filed his administrative

discrimination complaint with the Library’s EEO Office.

Between July and October of 1972, James Lee, a Posi-

tion Classifications Officer in the Library’s Classification Of-

fice, reviewed Bostick’s position. Lee met with Bostick per-

36a

sonally and conducted a 2 1/2 hour desk audit to review the

duties Bostick performed. Lee testified and the Court finds,

that his audit of Bostick’s position was conducted in-

dependently and without any interference or influence by

CRS personnel; that the position description which CRS sub-

mitted to the Classification Office quite accurately reflected

the duties which Bostick actually performed; and that CRS

officials were responsive and cooperative in providing Lee

with information concerning Bostick’s position. This

testimony is corroborated by credible testimony to the same

effect from Jayson and Owens. Lee also testified as an expert

on classification that Bostick does not perform the same kind

of work as CRS ‘Senior Specialists’? and ‘‘Analysts’’;* that

Bostick was at the full performance level for his series; that

grades above GS-12 are rarely found within the 1084 series;

that the CSC standards for the 1084 series quite accurately

describe the duties performed by Bostick; and that any

research which Bostick performs in connection with his posi-

tion is inherent in the position itself and does not exceed the

research required at the GS-13 level.

In October 1972 Bostick received a copy of Lee’s descrip-

tion of Bostick’s position. Bostick discussed the description

with Lee at length, and told Lee he was very disappointed

with it. At the end of November 1972 Bostick returned his

revised position description, unsigned, to Mr. Henderson, the

Chief of the Economics Division of CRS. Bostick took the

position that the description still did not reflect the full scope

‘ In response to questioning by the Court, Jayson briefly describ-

ed the typical profile of a GS-15 ‘‘specialist’’ at CRS. Specialists

are among the top experts in the United States in their fields. A

typical inquiry of a specialist in economics might be: if Congress

reduced the social security tax by 1%, what impact would that have

on inflation? Specialists are responsible for analyzing the available

sources of information and doing independent research if necessary.

Their typical work product is a written report, which is reviewed by

the appropriate Division Chief at CRS, and by the Coordinator of

Research for policy. With varying amounts of editorial revision,

these reports are frequently published by Congress.

37a

of his duties and responsibilities. Henderson nevertheless sign-

ed the position description and sent it to Walker.

In late December 1972 Robert L. Kuntzelman, then the

Placement and Classification Officer for the Library, re-

quested from the CSC an advisory opinion concerning the

proper allocation of Bostick’s position with respect to series

and grade. In early March 1973 the CSC answered that based

on the information which had been provided by the

Classification Office, there was no basis for a reclassification

of Bostick’s position above GS-13.

Meanwhile, in early October 1972, Beatrice J. Branch,

the Equal Opportunity Counselor responsible for investigating

Bostick’s discrimination complaint, submitted her in-

vestigative report. That report concludes that Bostick’s com-

plaint was for resolution through classification appeals, rather

than through EO channels. In early March 1973 Lloyd Pauls,

Equal Opportunity Officer, after conducting his own in-

vestigation, issued an independent decision concurring with

Branch’s conclusion. He stated, however,

In the documents accompanying the position descrip-

tion that were sent to Civil Service it states ...:

Because of incumbent’s more than 27 years as the

Service’s Visual Specialist his services as an advisor

are frequently requested by various Senators, Con-

gressmen, and their respective staffs. In this capacity

he advises them on how best to achieve the desired

results. He is recognized by peers in his field as an

authority and is frequently contacted by other Agen-

cies and private industry.

It would appear to this Officer that a career employee

with these qualifications not having received more than

two promotions in 26 years of employment in the Library

of Congress and having seen many other career

employees come to the Library after he did and receive

grade levels higher than he should receive some type of

monetary gain.

38a

Bostick has not appealed the Library’s decision not to

reclassify his position to GS-15, either through internal

Library or CSC classification appeal channels. He is currently

a GS-13, step 8, with a salary of just under $30,000 per year.

C. The Evidence of ‘‘Systemic Discrimination’’

In support of his contention that Library managers made

decisions affecting him based on race, Bostick introduced

statistical evidence and reports by Dr. Charles Mann, an ex-

pert on statistical analysis. Dr. Mann testified at trial, and ex-

plained his analysis and conclusions in some detail. The

statistical analysis was based on Mann’s examination of the

Library’s computerized records of payroll information. Mann

controlled for differences in education and tenure in the civil

service, and compared salaries of black and white employees

at the Library. His conclusion was that

[a]fter taking into account measures of education and ex-

perience there is a consistent pattern of highly significant

disparity in pay between Black and nonBlack employees

of the Library of Congress. For the years 1974, 1975,

and 1976, this disparity is estimated to be approximately

three to four million dollars per year depending on the

procedure used to measure education and tenure.

The Library did not dispute Dr. Mann’s statistics. In an

effort to show that the disparity evidenced by these statistics

is unrelated to Bostick’s failure to be promoted, the Library

introduced the report and testimony of Dr. Claude Bartlett,

another expert on statistical analysis. Bartlett conducted

statistical analysis similar to that performed by Mann. In ad-

dition to considering disparity in pay, however, Bartlett also

considered whether there was a disparity in the frequency

with which blacks and whites were promoted at the Library

and he considered separately employees of the Library who

were hired prior to the effective date of Title VII and those

who were hired after. Bartlett concluded:

39a

Overall, the data indicate that for 1974, 1975 and 1976

there was not disparity in promotion rate between Blacks

and Non-Blacks. With regard to annual salary and grade

level there did appear to be race differences that cannot

be explained by differences in tenure, education or age.

The data also suggest that most of these differences were

a result of large differences in the longer tenure

employees, those hired prior to 1972. For employees

hired more recently the disparity in treatment appeared

to be substantially less in 1974, for both salary and

grade. By 1975 grade differentials were similar to 1974,

but salary differentials were not significant. By 1976,

there were no unexplainable differences in grade of salary

level. Thus, the overall pattern of results suggests the

present salary and grade disparity for the longer tenure

employees may be the residual effects of past personnel

practices. The most recent data available for salary and

grade indicates that no disparity can be attributed to

race. Furthermore, for all employees, regardless of date

of hire, no consistent disparity was found in promotion

rate.

At trial, Bostick’s counsel and expert’ argued that

Bartlett’s analysis could be reconciled with Mann’s because

subtle systemic discrimination has relatively little short-term

impact and only takes its toll over time. The Library contend-

ed there was no basis for this inference. The evidence does

not convince the Court that there was causal connection bet-

ween any racial discrimination at the Library and the decision

not to reclassify Bostick’s positon. Although not necessary

for its decision, the Court further finds that the evidence of

disparate treatment of minority employees at the Library in-

ferrable from Dr. Mann’s report and testimony, when viewed

in the perspective of Dr. Bartlett’s testimony, does not sustain

plaintiff’s burden of proving that there was racial discrimina-

tion at the Library in 1972 affecting plaintiff.

40a

D. The Affirmative Action Program and the Career

Service Promotion Plan

Dr. Eugene Walton, the Library’s Assistant Director of

Personnel for Equality Programs testified at trial with some

pride about the Library’s affirmative action program, for

which he has primary responsibility. His program de-

emphasizes paperwork and, in Walton’s words, is ‘‘result

oriented.’’ It is in large part based on the views and sugges-

tions of minority Library personnel, which Walton collected

by distributing questionnaires. The core of the program is the

Training, Appraisal, and Promotion program (TAP), under

which employees are selected and trained for more advanced

positions known to be available within the Library. The affir-

mative action program also includes a tuition support pro-

gram for career oriented education, and a program of outside

research for validating Library job requirements.

While the TAP program is theoretically available at all

grade levels, the results have been primarily at the GS-5 to

GS-8 levels, where there have been job openings at the

Library in which minority Library employees have been in-

terested, and for which they could qualify with a feasible

amount of additional training. In contrast, there is no posi-

tion at the Library in Bostick’s field for which he couid

qualify with additional training.

The ‘‘automatic promotion plan’’ from which Bostick

claims he was discriminatorily excluded is explained in a

December 3, 1973 memorandum from Jayson to all CRS

staff. The purpose of the plan is

to assist in providing career service which will attract,

develop, and retain persons having outstanding

capabilities for work in the Congressional Research Ser-

vice.

The plan’s policy is to promote employees to the next higher

grade when their work product indicates that they are regular-

ly performing duties described in the position description for

4la

the higher grade, and there is no reason to believe that they

will continue to perform at that level. Necessarily, the plan is

only available to employees in ‘‘ladder positions,’’ i.e., where

the work the employee performs is performed at the Library

at increasing levels of complexity and responsibility. Bostick,

at grade GS-13, was already one step above the last rung

generally available in his ladder.

Il. CONCLUSIONS OF LAW

Jurisdiction of the Court is based on Title VII of the

Civil Rights Act of 1964, as amended by the Equal Employ-

ment Opportunity Act of 1972, 42 U.S.C. 2000e, ef seq.

A. The Library’s Refusal to Reclassify

Insofar as Bostick’s claim is based on the allegations that

the job he was actually performing was properly classifiable

at GS-15, and that the Library’s failure so to classify it was

based on racial discrimination, Bostick arguably failed to ex-

haust his administrative remedies in the form of classification

appeals.* Cf. Haneke v. Secretary of Health, Education and

Welfare, 535 F.2d 1291 (D.C. Cir. 1976). However, since this

claim is closely related to Bostick’s allegations that his super-

visors at the Library de-emphasized certain supervisory and

research functions he alleges he performed, and that these

supervisors failed to assign additional duties to Bostick’s posi-

tion for discriminatory reasons, the Court received evidence

on all of the circumstances relating to Bostick’s classification

requests.

Under Title VII, the plaintiff has the burden of proving

discrimination by a preponderance of the evidence. Hackley

v. Roudebush, 520 F.2d 108, 117 (D.C. Cir. 1975). McDon-

* Under Library of Congress Regulation 2016-8, § 2.A.2a,

Library employees with classification grievances may pursue ad-

ministrative appeals through the Library’s Placement and

Classification Office, the Library’s Assistant Director of Personnel,

or directly to the CSC,

42a

nell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) sets

the scheme for the allocation of the burden of proof fre-

quently applied in Title VII cases. Under this scheme the

plaintiff bears the initial burden of establishing a prima facie

case of discrimination by adducing evidence that he belongs

to a racial minority and that he has received treatment dif-

ferent from that received by similarly situated non-minority

employees. The burden then shifts to the defendant to ar-

ticulate a non-discriminatory justification for the disparity in

treatment. If the defendant can do this, the plaintiff is then

expected to adduce evidence to show that this justification

was not in fact the reason for the disparate treatment.

The evidence presented by the parties does not conve-

niently fit into the McDonnell Douglas scheme. The facts that

GS-12 is the full performance level for the series in which

Bostick’s position is classified, and that Bostick is the only

visual information specialist employed by CRS, made it dif-

ficult for him to show disparate treatment by reference to

other visual information specialists. Bostick relied in large

part on statistical evidence that blacks at the Library are paid

less than whites with similar education, past work experience,

etc., to create an inference that he, like other blacks at the

Library, was the victim of disparate treatment which could

only be explained by otherwise undetectable, but pervasive,

racial animus. The Library countered the testimony and

statistical studies of Bostick’s expert, Dr. Charles Mann, with

the testimony and analysis of their own expert, Dr. Claude

Bartlett. On balance, the statistical evidence was inconclusive.

Furthermore, it provided little guidance to the Court in

deciding whether discrimination entered into the particular

decisions which affected Bostick.

Assuming that the statistical and expert testimony that

black employees at the Library have fared less well than other

employees makes out a prima facie case, Bostick still could

not have prevailed on his claim. The Library has satisfied the

Court that the determination not to reclassify Bostick’s posi-

43a

tion to GS-15 resulted from the fact that Bostick’s position

was believed to be — and was — properly classified under the

CSC position classification standards at grade GS-13. Racial

discrimination did not enter into that decision.

The evidence further demonstrates that Bostick’s super-

visors did not in any way de-emphasize his capabilities, in-

dependence, supervisory duties, or research functions in order

to subvert the review of Bostick’s position description by the

Classification Office of the Library.

Little evidence relating to the Library’s decision to hire

an independent commercial art contractor in lieu of staffing

the Library’s own graphics department, other than the Robin-

son memorandum to Walker, excerpts from which are set out

above, was introduced at trial. Robinson’s explanation there

of the Library’s needs, corroborated by his testimony before

the Court, leaves little doubt that the plan was adopted and

perpetuated as a result of business judgment exercised in

good faith, and not for the purpose of foreclosing Bostick

from additional managerial duties.

B. The Affirmative Action Program and the Career

Service Promotion Plan

Bostick’s claims that he was the victim of discrimination

in connection with the Library’s failure to direct any afir-

mative action program toward him, and the Library’s failure

to include him in any ‘‘automatic promotion plan’’ may be

disposed of without lengthy analysis. Neither plan was made

available to, or benefited, Bostick. However it is readily ap-

parent that racial discrimination was not responsible for these

facts.

There is no position at the Library in Bostick’s field for

which he could qualify with additional training of the dimen-

sion contemplated by TAP. The cold fact is that the Civil

Service classification system severely limits the promotion op-

portunities at the Library of Congress for the most valuable

specialists who lack advanced formal education credentials

44a

and are not, as stated in the Robinson memorandum, ‘‘called

upon to do economic, social, scientific or other forms of sub-

ject discipline analysis.’’

Bostick does not claim, however, that advanced education

credentials were denied him because of his race or that the

TAP-type training could have equipped him for subject

discipline analysis or otherwise facilitated a higher classifica-

tion for him.

Appealing as is his situation, the Court reluctantly con-

cludes that Bostick has not made a persuasive case that he

was denied the benefits of the Library’s TAP program

because of his race. The ‘‘automatic promotion plan’’ from

which Bostick claims he was discriminatorily excluded was

only available to employees in ‘‘ladder positions’’. Bostick, at

grade GS-13, was already one step above the last run general-

ly available in his ladder. It is evident, therefore, that

discrimination on the basis of race played no part in the ex-

clusion of Bostick from the plan.

C. Conclusion

Although Bostick, like the ‘‘specialists’’ employed at

CRS acts as a consultant directly to Members of Congress,

has a high degree of expertise in his field, and Operates with

considerable autonomy, his duties are not fully analogous to

those of the CRS ‘‘specialist’’ who is classified at GS-15. To

decide this case, the Court does not need to pass judgment on

the personnel policy embodied in the CSC classification

guidelines that experts in graphics are deserving of less

monetary reward than experts in other disciplines. It is suffi-

cient to Observe that it is this judgment which is responsible

for the difference in treatment between Bostick and those to

whose positions he analogizes to his own, and that this judg-

ment is not in any way a pretext for racial discrimination.

An appropriate Judgment accompanies this memoran-

dum.

/s/ Louis T. OBERDORFER

United States District

Judge

45a

Second Court of Appeals Decision

UNITED STATES COURT OF APPEALS

DISTRICT OF! COLUMBIA CIRCUIT

Docket No. 78-2194

February 22, 1980

[30,682] ROBERT L. BOSTICK ET AL., Appellants

v.

DANIEL J. BOORSTIN, LIBRARIAN, LIBRARY OF CONGRESS, Ap-

pellees.

On Appeal from United States District Court, District of

Columbia. Affirmed.

Before TAMM and Mikva, Circuit Judges, and HAROLD

H. GREENE,* United States District Judge for District of Col-

umbia.

GREENE, D.J.: This is an appeal from a judgment in

favor of the government in a discrimination action brought pur-

suant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.C.

§ 2000e-16. The principal issue is whether the evidence supports

the finding of the court below that the failure of the Library of

Congress to promote appellant was not the product of racial

discrimination. '

* Sitting by designation pursuant to 28 U.S.C. § 292(a)(1976).

' The only other assertion of error that requires discussion is the

claim that the District Court improperly refused to certify the suit

as a class action under Rule 23(a)(3), F.R.Civ.P. An interlocutory

appeal from an earlier refusal of Judge Jones to certify a class ac-

tion in this case was dismissed by this court. Williams v. Munford

[9 EPC 410,063], 167 U.S, App. D.C. 125, 511 F.2d 363 (1975),

cert. denied [10 EPD 410,409], 423 U.S. 828 (1975). More recently,

Judge Oberdorfer found that the claims of appellant and those of

one Joslyn Williams, whose case has since been severed, were not

typical of the claims of the class they sought to represent. Appellant

essentially contends that his position was incorrectly classified,

while Williams’ claim-relates to an allegedly improper penalty for

46a

Appellant is a visual information specialist at the Library

of Congress whose pay grade is GS-13. He contends that his

position should have been reclassified to a grade GS-15 and

that failure of appellee and his subordinates to effect such

reclassification was racially motivated.

Appellant began working at the Library of Congress in

1947 as a graphic information specialist at grade GS-11.’

Beginning in September 1952, he sought a reclassification of

his position to a GS-12. These efforts were repeatedly sup-

ported by his superiors in the Library, but the Civil Service

Commission for several years refused to grant its approval,

ruling that the position was correctly classified.’ Eventually,

in December 1958, the Commission relented, and appellant’s

position was changed to a GS-12. In February 1961, appellant

began a campaign to have the same position upgraded to a

GS-13. Although that request was denied by a classification

office in the Library of Congress, the Library’s Assistant

Director of Personnel decided to reclassify the position on the

falsification of an employment application. The fact situations in-

volving these individuals are relatively unique and not typical of

any class (Taylor v. Safeway Stores, Inc. {10 EPD 410,410]. 524

F.2d 263 (10th Cir. 1975); Wright v. Stone Container Corp. [10

EPD 410,435], 524 F.2d 1058 (8th Cir. 1975); Koos v. First Na-

tional Bank of Peoria, 496 F.2d 116, 1164-65 (7th Cir. 1974);

Wright & Miller, Federal Practice and Procedure: Civil § 1764 (2d

ed. 1972) and there is no basis for overturning the exercise of the

District Court’s discretion in failing to make a class certification.

City of New York v. International Pipe & Ceramics Corp., 410

F.2d 295, 298 (2d Cir. 1969); Peterson v. Oklahoma City Housing

Authority, 545 F.2d 1270, 1273 (10th Cir. 1976); Price v. Lucky

Stores, Inc. [8 EPD 49556], 501 F.2d 1177 (9th Cir. 1974).

? Appellant originally worked in the Library’s General Research

Section. He was later .ransferred to the Congressional Research

Service where he has remained since.

> The decision was supported by several layers of decision-makers

in the Civil Service Commission, including its Board of Appeals

and Review.

47a

basis of an ‘‘incumbency reallocation.’’* Appellant received

his promotion to a GS-13 in April 1965.

[Reclassification Attempt]

In April 1971, appellant began his efforts to have his

position reclassified to a GS-15. A review of his duties and

responsibilities was conducted by James Lee, a Position

Classification Officer,’ who reached the conclusion that the

position was properly rated as a GS-13, and that Civil Service

Commission standards accurately described the work ap-

pellant in fact performed. Nevertheless, the Library proceed-

ed to request the Civil Service Commission to render an ad-

visory Opinion concerning the proper grade for appellant’s

position. The Commission responded that there was no basis

for classifying the job above GS-13,° and the Library accor-

dingly made its decision not to effect a further reclassifica-

tion. Although a review process was apparently available, ap-

pellant did not avail himself of the opportunity it provided’

but instead filed an administrative discrimination complaint.

An equal opportunity counselor and the agency’s Equal Op-

portunity Officer determined after investigation that ap-

pellant’s complaint was more appropriately regarded as a

classification matter in the classification office and took no

action. This suit in the District Court followed.

* An incumbency reallocation is the reclassification of a position

at a higher than normal level because of the strengths the incum-

bent brings to the particular job.

* Lee, who works in the Library’s Classification Iffice, is black.

* The Commission noted that non-supervisory positions above

grade GS-12 are not common in appellant’s job series.

’ The District Court found that arguably appellant failed to ex-

haust his administrative remedies by failing to pursue classification

appeals. See Haneke v. Secretary of Health, Education and

Welfare, 175 U.S. App. D.C. 329, 535 F.2d 1291 (1976). Never-

theless, it considered appellant’s racial discrimination claims on the

merits.

48a

Appellant’s position in the classified service is relatively

unique, and the basic issue here is whether it was properly

classified.

Under the Classification Act of 1949, 5 U.S.C. § 5101 et

seq., the Civil Service Commission’ has the responsibility for

establishing standards for placing positions in their proper

classes and grades. The Commission evaluated appellant’s

position and found that there was no basis for classifying it

above GS-13.’ Appellant concedes that the Civil Service

classification series for visual information specialists on its

face covers only grades through GS-12, but he argues that,

notwithstanding that general limitation, and notwithstanding

the more specific Commission advisory ruling that his posi-

tion was appropriately classified at no more than a GS-13, the

Library was guilty of discrimination because it failed to make

an exception for his benefit.'°

While the Library of Congress may not have been bound

as a matter of law by the Civil Service Commission decision,

the record does not reveal any f ctual justification for a

Library departure from the Commission’s determination. Cer-

* Now the Office of Personnel Management.

* Appellant would equate this kind of classification analysis with

the subjective judgments made by white supervisors that have been

regarded as possible vehicles for discrimination. See, e.g., James v.

Stockham Valves & Fittings Co. [15 EPD 47842], 559 F.2d 310, 345

(Sth Cir. 1977), cert. denied [15 EPD 48019], 434 U.S. 1034 (1978);

Pettway v. American Cast Iron Co. [7 EPD 49291}, 494 F.2d 211,

232 (Sth Cir. 1974). This argument lacks merit for several reasons:

(1) general classification decisions are unlike individual, subjective

hiring or promotion decisions; (2) the basic judgment here was not

made by appellee but by the Civil Service Commission which is not

a party and has not been charged with discrimination; and (3) to

the extent that the Library was involved, its principal judgment

concerning appellant’s proper classification was expressed by a

black employee.

'° Appellant also argues that the fault lies with his position

description, and that he was the only person competent to deter-

mine the scope of his duties and responsibilities. The District Court

rightly rejected this claim.

49a

tainly the District Court could not be said to have erred when

it failed to find discrimination based on the Library’s refusal

to disregard a Civil Service Commission opinion with respect

to the appropriate classification of appellant’s position.

Appellant contends that the classification reason given

for the failure to promote his was merely pretextual'' and

conceals underlying discriminatory purposes. In this regard,

he argues that he performed the same kind of work as white

employees who were classified at grade GS-15,'? that he had

been performing supervisory functions and should have been

reclassified for that reason, and that he was entitled to an in-

ference of discrimination on the basis of statistics.

Appellant is a high school graduate working in the

relatively non-professional field of a visual information

specialist.'* To be sure, the positions of various types of

‘senior specialists’? and ‘‘analysts’’ are classified at grade

GS-15, but these positions, as appellant’s classification officer

found, are not comparable to the one appellant holds. Such

'' The District Court assumed for purposes of analysis, and so do

we, that appellant had made out a prima facie case of discrimina-

tion, and that the issue was whether legitimate, nondiscriminatory

reasons existed for the Library’s failure to promote appellant, as

distinguished from reasons which were mere pretexts for discrimina-

tion,

'? Appellant also makes the related argument that he should have

been included in the Library’s automatic promotion plan. That

plan, which is aimed primarily at the agency’s professional

employees, was not applied to appellant because his job is

*tunique.’” The evidence showed that other black employees in

other job classifications were included in the plan.

'’ According to the Coordinator of Research of the Congressional

Research Service, as a visual information specialist appellant pro-

vides ‘‘visual, graphic, design, geometric and artistic skill in the

form of statistical or organizational charts, lettered tables, maps, il-

lustrations, inscriptions, in ornamental lettering styles, layouts

ready for the printer, ... visual information presentations’’ and

similar services, but ‘‘he is rarely, if ever, called upon to do

economic, social, scientific or other forms of subject discipline

analysis.”’

50a

specialists and analysts are frequently among the top experts

in academic research submitted to the Congress on public

policy matters,'* and they usually have graduate degrees.

Visual information specialists, on the other hand, are typical-

ly classified at grades GS-11 to GS-13.'°

Appellant’s claim that he is entitled to reclassification

because he was or should have been exercising supervisory

duties is unfounded. The Coordinator of Research, who

supervised most of appellant’s work and had the initial

responsibility for describing his position, determined that ap-

pellant has no significant supervisory or administrative duties.

In 1950, appellant did have one assistant, but the individual

was dismissed after a few months, along with a number of

other employees, on account of a congressionally-mandated

budget cut. This brief and narrow supervisory experience

hardly justifies a finding of discriminatory classification well

over twenty years later.

The District Court found the statistical evidence to be in-

conclusive. We agree. One expert testified that there was a

consistent pattern of disparity between black and non-black

employees in the Library of Congress. Another expert, ex-

amining the same data, found no disparity in promotion rates

between blacks and non-blacks. At its most favorable to ap-

pellant,'® the evidence does no more than to establish a prima

'* We need not decide whether salary distinctions between experts

in graphics and experts in such fields as economis, sociology, and

other academic pursuits are appropriate as a matter of personnel

policy. Suffice it to say that such distinctions cannot be regarded as

racially discriminatory.

'’ There is an indication in the evidence that there is one visual

information specialist at another government agency (Department

of Commerce) whose position is classified as a GS-15. That par-

ticular employee appears to have far broader responsibilities than

appellant. In any event, that one classification, which may violate

Civil Service standards, cannot form the norm for all similar jobs

throughout the federal service.

'* The government’s expert, unlike the witness produced by ap-

pellant, examined possible disparities in the frequency with which

5la

facie case of discrimination'’ within the meaning of McDon-

nell Douglas Corp. v. Green [5 EPA 48607], 411 U.S. 792,

802 (1973) and Hackley v. Roudebush [10 EPD 410,403], 171

U.S. App. D.C. 376, 520 F.2d 108 (1975). We perceive no

basis for holding incorrect the District Court’s conclusions,

based upon his findings of subsidiary facts,'* that this prima

facie case was rebutted by the Library, and that appellant had

failed to show that the non-discriminatory reasons given by

that agency constituted a pretext for discrimination. The

judgment of the District Court is accordingly

Affirmed.

blacks and whites were promoted, and he concluded that for all

employees, regardless of date of hire, no consistent disparity in pro-

motion rates could be established.

'’ With regard to the statistics, appellant urges upon us the recent

decision of this court in Davis v. Califano, No. 78-1398. The court

there held that statistical evidence may establish a prima facie case

of individual discrimination, recognizing, however, that, as with

any circumstantial evidence, the usefulness of statistical evidence

depends on all the surrounding facts and circumstances (slip opi-

nion, p. 10). In any event, the District Court here concluded that

there was no violation of Title VII even if it be assumed that a

prima facie case of discrimination was established by the statistics.

'* The District Court’s findings of fact may of course not be set

aside unless they are clearly erroneous. Rule 52(a), F.R.Civ.P.;

Kinsey v. First Regional Securities, Inc. [13 EPD 411,614], 181 U.S.

App. D.C. 207, 557 F.2d 830 (1977). This rule applies to design,

motive, and intent. United States v. Yellow Cab Co., 338 U.S. 338,

341 (1949).