Full opinion text
NICHOLS, Judge. This is a suit for back pay with jurisdiction asserted under 28 U.S.C. § 1491, which provides, inter alia: The Court of Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, * * *. * * * -» * * The basis for the action is a finding by the Director of Equal Employment Opportunity for the Department of Health, Education and Welfare (HEW), that plaintiff had been denied equal opportunity for employment because of racial discrimination in violation of Executive Order 11478, 34 Fed.Reg. 12985 (1969). Both E.O. 11478, and its predecessor E.O. 11246, 30 Fed.Reg. 12319 (1965), were promulgated by the President pursuant to 5 U.S.C. § 7151, Supp. V (1965-1969), which provides: It is the policy of the United States to insure equal employment oportunities for employees without discrimination because of race, color, religion, sex, or national origin. The President shall use his existing authority to carry out this policy. E.O. 11246 was in effect at the time plaintiff was denied employment, but the following pertinent passages are common to both Orders: Section 1. It is the policy of the Government of the United States to provide equal opportunity in Federal employment for all persons, to prohibit discrimination in employment because of race, color, religion, sex, or national origin, and to promote the full realization of equal employment opportunity through a continuing affirmative program in each executive department and agency. This policy of equal opportunity applies to and must be an integral part of every aspect of personnel policy and practice in the employment, development, advancement, and treatment of civilian employees of the Federal Government. Sec. 2. The head of each executive department and agency shall establish and maintain an affirmative program of equal employment opportunity for all civilian employees and applicants for employment within his jurisdiction in accordance with the policy set forth in section 1. * * * ****** Sec. 4. The Civil Service Commission shall provide for the prompt, fair, and impartial consideration of all complaints of discrimination in Federal employment on the basis of race, color, religion, sex, or national origin. * *. Procedures for the consideration of complaints shall include at least one impartial review within the executive department or agency and shall provide for appeal to the Civil Service Commission. * * * * * * Plaintiff, a black resident of Beckley, West Virginia, had, in early 1965, made application to the district office of the Social Security Administration (SSA) located in that community, for employment as a clerk-typist, GS-4. She was interviewed by District Manager Billings, and he made the customary reference checks. He learned she was technically qualified, and the references were favorable, so he offered her a position. She was unable to accept it because in the meantime she had secured employment at the Beckley Appalachian Regional Hospital (BARH). She worked there for approximately two years, resigning in 1967. At that time she again sought employment with the local SSA office, since a position there was once again available. This time, however, because of a reference report which he considered unfavorable, Mr. Billings refused to recommend her for employment. The report was to the effect that the BARH would not rehire her because “she was a perennial troublemaker who, during her BARH employment, was not averse to frivolously alleging racial discrimination and calling in the NAACP.” On March 17,1967, Mrs. Chambers was advised that she would not be employed. Another black person, Mrs. Chambers’ cousin, was hired instead. Shortly thereafter she filed a complaint with the SSA alleging that she had been denied employment because of racial discrimination. A hearing followed at which witnesses testified for both sides. However, there was no inquiry into plaintiff’s charges against BARH because it was considered to be beyond the jurisdiction of SSA. Following the hearing, the examiner filed a report containing summaries of testimony, findings of fact and recommendations. One of the fact findings was that “but for the reference report submitted by the BARH management employees, [plaintiff] would have been recommended for employment by the District Manager.” The Government has not challenged this finding in the instant proceeding and counsel openly conceded the point during oral argument. We are, of course, not bound by this concession if all other facts are to the contrary. Cf. H. B. Zachry Co. v. United States, 344 F.2d 352, 170 Ct.Cl. 115 (1965). However, according to the report, the finding was based on a statement to that effect by Mr. Billings himself, rather than merely an inference drawn by the hearing officer. This is not surprising in view of Mr. Billings’ prior knowledge of plaintiff’s qualifications and reputation which had previously led him to offer her a position. We think the finding has sufficient support in the record and accept the defendant’s “stipulation” if we may so designate it. The hearing officer also found that Mr. Billings had made no attempt to verify the BARH report but accepted it at face value and assigned it “crucial weight” in his decision. The hearing officer held this to be no error “under existing, applicable policies and regulations,” nevertheless, he asked whether employing agencies had an obligation, in view of equal employment policies, to determine the validity of an unfavorable reference report “where, as was the case here, the report is crucial as to the decision to be reached and the potential complainant’s counterallegation is that the report reflects discrimination of the kind proscribed by regulations.” Notwithstanding his ultimate finding was that plaintiff “was not discriminated against, because of race, by the Social Security Administration and/or the district manager.” This report was approved by SSA officials who felt that the hiring of another black person for the same job was proof that there had been no discrimination against plaintiff. At plaintiff’s request the hearing officer’s repoi't was reviewed by the Director of Equal Employment Opportunity for HEW, resulting in a reversal of the finding of no discrimination. The Director criticized the hearing afforded plaintiff in the following language: * * * the SSA District office in Beckley, West Virginia, failed to answer Mrs. Chambers’ charge that it operated in and was unduly influenced by an environment of racial discrimination. Furthermore, it offered no data on the racial composition of its office, its hiring practices or implementation of affirmative action. Mrs. Chambers was indeed discriminated against, and we feel that the SSA personnel involved in this case were cavalier in their denial of the serious charge of racial discrimination. ****** * * * the argument that the hiring of one Negro obviates the charge of discrimination is not sufficient of itself to answer the charge that racial factors formed the basis for complainant’s personal denial of employment with the SSA. ****** The question posed by the hearing officer was apparently answered in the affirmative. The Director considered it “significant that Mr. Billings did not even consider that [plaintiff] might have had reasons for charging racial discrimination and more importantly, within the Federal context, her right to file a complaint of discrimination.” The decision, based solely on an analysis of the SSA hearing officer’s investigative report was: * * * that the denial of equal opportunity for employment in the instant case was based substantially on the applicant’s previous racial discrimination complaint and that such denial constituted a violation of Executive Order 11478 and Department regulations pursuant thereto. The defendant by its counsel concedes the discrimination. The underlying facts being undisputed, what is involved, evidently, is an interpretation of the Executive Order by the agencies authorized to administer it. Such interpretations have special weight if not arbitrary or capricious, not mere whim or caprice, even if a court might disagree. Houston v. United States, 297 F. 2d 838, 842, 156 Ct.Cl. 38, 46, cert. denied, 371 U.S. 815, 83 S.Ct. 27, 9 L.Ed.2d 56, reh. denied, 371 U.S. 906, 83 S.Ct. 204, 9 L.Ed.2d 167 (1962). This would be true even if, as in Houston, one party was challenging the interpretation. Here, however, both parties in substance agree on it. Certainly it is possible to hold in good faith that it is racial discrimination against an applicant to turn him down because he complained of racial discrimination against him in another job, without inquiry whether such previous complaint was frivolous or bona, fide. It is also not mere caprice to hold that discrimination against one black is not necessarily purged by hiring another black. The issue was not Mr. Billings’ credibility, nor whether, subjectively, he did or did not entertain bias against minority races. It was, purely and simply, whether his own undisputed account of what he did showed that he had or had not fully performed the duties that E.O. 11246 made incumbent upon him as a hiring official in the Executive branch. The usual proper handling of an open court concession is, we believe, to eliminate the conceded issue from further consideration by the court. There are exceptions, for example an attempt to establish the court’s subject matter jurisdiction by concession, but they do not apply here. Thus in Wagner v. United States, 387 F.2d 966, 181 Ct.Cl. 807, (1967), the trial commissioner had submitted a recommended opinion dealing with two alternative grounds for recovery plaintiff had urged before him. In our Per Curiam the following appears, 387 F.2d at 967, 181 Ct.Cl. at 809: Before us the taxpayer explained in his reply brief and in oral argument that he did not expect to prevail on the first issue, considered separately. That is, absent the showing of discrimination he claimed he had made, he did not believe the facts in the ree-ord demonstrated that the asserted tax was not lawfully assessed. This concession makes it unnecessary for us to inquire into the matter contained in the first branch of our commissioner’s recommended opinion, and we do not do so. * * * In adopting the recommended opinion, we deleted the portion that dealt with the conceded issue. We think a similar omission would be in order here, and the conceded issue is discussed beyond what is strictly proper only to satisfy the scruples of our dissenting judges. This case will in no way constitute a precedent as to the meaning of discrimination under the Executive Order. The recommended remedy was that Mrs. Chambers be given “consideration for the next suitable position in SSA for which she qualifies and is available.” Plaintiff felt this remedy was inadequate and she appealed further to the Civil Service Commission Board of Appeals and Review (BAR). She asked for immediate employment in the position which had been unlawfully denied her, retroactive and with back pay. The BAR granted her partial relief by directing the SSA to “offer Mrs. Chambers a position at the GS-4 level at Beckley, West Virginia, within 30 days of its receipt of the Board’s decision.” Her request for retroactive appointment and back pay was denied, however, because the BAR considered such a remedy as beyond its authority. The appeal to the BAR constituted exhaustion of her administrative remedies; therefore she next filed suit in this court seeking back pay for the period between March 17, 1967, the date she was unlawfully denied employment, and March 9, 1970, the date she finally became employed. Both parties have moved for summary judgment. We are confronted with a situation where defendant admits that it discriminated against an applicant because of race and but for that discrimination she would have been employed at a particular grade and salary on March 17, 1967. Presumably she met all proper qualifications. Presumably there was a vacancy and funds to pay the applicant were available. Presumably her selection would not have required resolution of any open discretionary question in her favor. The sole question for our determination is whether, in the circumstances, E.O. 11478 provides a legal basis for awarding back pay to such an applicant for Federal employment. We hold that it does. There is nothing novel about this court affording a monetary remedy to claimants on the strength of Executive Orders and administrative regulations not expressly so providing. Under the doctrine of Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957), we have many times awarded back pay to plaintiffs, both military and civilian, who demonstrated a violation of procedural rights guaranteed to them by valid departmental regulations. Glidden v. United States, 185 Ct.Cl. 515 (1968); Fletcher v. United States, 392 F.2d 266, 183 Ct.Cl. 1 (1968); Greenway v. United States, 175 Ct.Cl. 350 (1963), cert. denied, 385 U.S. 881, 87 S.Ct. 167, 17 L.Ed.2d 108, reh. denied, 385 U.S. 954, 87 S.Ct. 327, 17 L.Ed.2d 223 (1966); Daub v. United States, 292 F.2d 895, 154 Ct.Cl. 434 (1961); Starzec v. United States, 145 Ct.Cl. 25 (1959); Watson v. United States, 162 F.Supp. 755, 142 Ct. Cl. 749 (1958). In Watson, the court noted, 162 F.Supp. at 758, 142 Ct.Cl. at 756: * * * that neither Service nor Watson was claiming a violation of any procedural rights guaranteed by any statute whatever, but rather the violation of rights guaranteed by departmental regulations. If the regulations issued under the executive orders, which in turn were issued under the 1883 Civil Service Act, in the case of Service had the force and effect of law, and a discharge carried out contrary to the provisions of these regulations was therefore an invalid discharge, it is difficult to understand why the Watson discharge in violation of another regulation issued under the same 1883 Act, was not equally invalid. In Daub, supra, the court noted, 292 F.2d at 897-898, 154 Ct.Cl. at 437-438: The Government points out that the plaintiff was a temporary employee who had no status either in the competitive civil service, or as a veteran. But, as we have shown, the Army had, by regulation, conferred upon its employees, including its employees who had no rights under the Lloyd-LaFol-lette Act, 5 U.S.C.A. § 652 or the Veterans’ Preference Act, 5 U.S.C.A. § 851 et seq., the right to prescribed rational and uniform treatment with regard to their status as employees. * * * In Simon v. United States, 113 Ct.Cl. 182, 190-191 (1949), the court said: * * *. It is not necessary, to the jurisdiction of this court to render a money judgment based upon rights conferred, that the contract, or regulation upon which the claim is founded contain a provision that denial of a legal right thereunder shall give rise to a cause of action for compensation or damages. This matter is taken care of by the broad jurisdiction conferred by § 1491, U.S.C., Title 28, supra. United States v. Wickersham, 201 U.S. 390 [26 S.Ct. 469, 50 L.Ed. 798]. It is true, as defendant points out, that these cases involved existing employees who were found to have been wrongfully discharged from Federal employment. Defendant correctly observes that in no previous case have we awarded back pay to an applicant for employment. We are cited to a line of cases stemming from United States v. McLean, 95 U.S. 750, 24 L.Ed. 579 (1877), which defendant contends support the proposition “that there is no legal basis for awarding plaintiff the salary for a position she never held.” These cases involved employees who had been appointed to one position but were in fact performing duties of a higher paid position. The contention of those plaintiffs was that performance of duties of the higher paid position entitled them to the pay of that position. They were in effect, suing for promotions. In McLean, supra, the Supreme Court established the principle that the power of appointment is within the discretion of the executive and held at 753, that, “courts cannot perform executive duties, or treat them as performed when they have been neglected.” In Coleman v. United States, 100 Ct.Cl. 41, (1943), this court denied recovery to a plaintiff who had been appointed as a “substitute garageman-driver” but was suing for the pay of a “driver-mechanic” because he had allegedly been performing the duties of the latter position. The court said, 100 Ct.Cl. at 42: * * *. Plaintiff is entitled to no more than the salary of the office to which he was appointed, whether or not he performed the duties of an office of a higher grade. Like issues were involved in Amundson v. United States, 120 F.Supp. 201, 128 Ct.Cl. 80 (1954); Price v. United States, 80 F.Supp. 542, 112 Ct.Cl. 198 (1948); and Dvorkin v. United States, 101 Ct.Cl. 296, cert. denied, 323 U.S. 730, 65 S.Ct. 66, 89 L.Ed. 586 (1944). See also, Ganse v. United States, 376 F.2d 900,180 Ct.Cl. 183 (1967). In Tierney v. United States, 168 Ct.Cl. 77, 80 (1964), plaintiff claimed that an alleged wrongful transfer had prevented his being considered for a subsequent promotion to a higher position created by a reorganization. The court refused to analyze the merits of plaintiff’s claim and denied recovery because: * * *. The power of appointment is within the discretion of the head of a department. It is an executive function which involves exercising the discretion of the executive. * * *. If this court were to grant recovery to plaintiff it would in effect bestow upon plaintiff a promotion which he never received. In so doing, this court would be making an administrative decision. Such action would be a clear usurpation by the judiciary of an administrative function. * * * Even had the plaintiff not been transferred, he might not have been chosen for promotion pursuant to the reorganization. When the reviewing court has determined that there has been substantial compliance with applicable regulations and statutes it has performed its proper function. It would be improper to substitute the supposed wisdom of the court for that of the agency in the exercise of executive discretion. The above cases- correctly state the law and we adhere to the decisions therein. But they are not dispositive of the case at bar. The Supreme Court has, since Marbury v. Madison, 1 Cranch (5 U.S.) 137, 2 L.Ed. 60 (1803), distinguished between discretionary acts of executive officials which are beyond judicial power to review, and ministerial acts which can be compelled by mandamus, Miguel v. McCarl, 291 U.S. 442, 54 S.Ct. 465, 78 L.Ed. 901 (1934). But even as to discretionary acts, the Court has held that an administrative officer might exceed his authority “by making a determination which is arbitrary or capricious or unsupported by evidence.” Dismuke v. United States, 297 U.S. 167, 172, 56 S.Ct. 400, 403, 80 L.Ed. 561 (1936). This court has utilized that standard in back pay cases. Blaekmar v. United States, 354 F.2d 340, 173 Ct.Cl. 1035 (1965). Here we are neither reviewing a discretionary act nor performing one. The executive agency has already made the determination that but for unlawful discrimination, plaintiff would have been hired on March 17, 1967. We are not asked to speculate even as to the grade, salary, or the date. Our only function here is to ascertain the plaintiff’s rights which flow from that determination. See Vasey v. United States, 128 Ct.Cl. 754 (1954), and Smith v. United States, 119 F.Supp. 200, 127 Ct.Cl. 706 (1954). In Vasey, the plaintiff had been reclassified from Special Investigator, CAF-8, in the Treasury Department to Criminal Investigator at the same grade and salary. Shortly thereafter, all “Special” Investigators were upgraded to CAF-9. The Civil Service Commission BAR held that plaintiff’s reclassification had been improper and ordered that he be restored retroactively to the position of “Special” Investigator and given the benefit of any advance in grade. Since the determination to promote the plaintiff had been made by the BAR, the only question for the court was whether plaintiff was also entitled to back pay. We held that he was. Defendant’s primary reliance, however, seems to be on Gnotta v. United States, 415 F.2d 1271 (8th Cir. 1969), cert. denied, 397 U.S. 934, 90 S.Ct. 941, 25 L.Ed.2d 115. The plaintiff in that case, a man of Italian ancestry, brought suit in the District Court under E.O. 11246, supra, alleging that he had, because of discrimination, been denied promotions during 11 years service with the Corps of Engineers. He pursued his administrative remedies in the same manner as the plaintiff here, but with a different outcome. The finding, affirmed by the BAR, was that the evidence did not support the allegations of discrimination. Judge (now Justice) Blackmun, wrote the opinion sustaining dismissal of plaintiff’s action by the District Court. He adopted that part of the District Court’s opinion which held, 415 F.2d at 1278: * * *. None of the executive orders or regulations which the complaint cites purports to confer any right on an employee of the United States to institute a civil action for damages against the United States, in the event of their violation, even if it should be established that plaintiff’s failure to have been promoted * * * was in fact due to discrimination in violation of the Executive Orders pleaded. -X- * * The court was of the opinion that the Tucker Act, 28 U.S.C. § 1346(a) (2), (conferring on the District Courts concurrent jurisdiction with the Court of Claims) was not broad enough to confer-jurisdiction in such a case. Our line of cases, expressing a different view, apparently was not cited or considered. We think what this court said in Simon, supra, 113 Ct.Cl. at 192-193, provides the applicable rule of law: Defendant’s position is based entirely upon an inference which it seeks to draw-from the absence in the Act of 1883 of an express provision that the denial of a right under a regulation, duly made pursuant to that Act, shall entitle the employee concerned to sue in this court. We think it is obvious that such an express provision was not necessary since Congress knew, in 1883, that it had already expressly given this court jurisdiction to hear, determine, and enter judgments upon such claims. * * * *■-***** The statute (28 U.S.C. 1491) outlining the general jurisdiction of this court and the Civil Service Act of January 16, 1883, supra, are “in pari ma-teria” and should be construed together * * * In promulgating E.O. 11246 and E.O. 11478, the President, it must be assumed, was well aware of the existing jurisdiction of the Court of Claims and the case history (partly recounted, supra) of back pay awards for violation of rights granted under Executive Orders and departmental regulations. Congress indicated its intent that 5 U.S.C. § 7151, supra, be more than merely hortatory when it instructed the President to “use his existing authority to carry out this policy” of equal employment opportunity. It is, of course, true that when Congress creates rights in individuals, “it is under no obligation to provide a remedy through the courts.” See Lynch v. United States, 292 U.S. 571, 582, 54 S.Ct. 840, 845, 78 L.Ed. 1434 (1934). When it desires to exclude a class of claim from judicial review it knows how to do so. 38 U.S.C. § 211(a) provides that decisions of the Administrator of Veterans’ Affairs : * * * on any question of law or fact concerning a claim for benefits or payments under any law administered by the Veterans’ Administration shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decision. Article 76 of the Uniform Code of Military Justice, 10 U.S.C. § 876, provides: The appellate review of records or trial provided by this chapter, * *, are final and conclusive. Orders publishing the proceedings of courts-martial and all action taken pursuant to those proceedings are binding upon all departments, courts, agencies, and officers of the United States, ■ * * * But absent such a clear manifestation that access to the courts is prohibited where a specific right has been created, we think it is the intent of Congress that the general jurisdictional statutes are controlling. We find support for this conclusion, particularly as it relates to administrative denial of rights, in certain provisions of the Administrative Procedure Act, and the language of the Supreme Court in Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967): * * * the Administrative Procedure Act, * * * embodies the basic presumption of judicial review to one “suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute,” 5 U.S.C. § 702, so long as no statute precludes such relief or the action is not one committed by law to agency discretion, 5 U.S.C. § 701(a). The Administrative Procedure Act provides specifically not only for review of “[ajgency action made reviewable by statute” but also for review of “final agency action for which there is no other adequate remedy in a court,” 5 U.S.C. § 704. * * * We have recently considered the effect of the Administrative Procedure Act as to agency action not expressly stated to be reviewable, in Moore-McCormack Lines, Inc., v. United States, 413 F.2d 568, 188 Ct.Cl. 644 (1969). In this case, plaintiff’s right to equal employment opportunity under 5 U.S.C. § 7151 and E.O. 11478 was denied her by action of the Social Security Administration. She therefore is a person suffering a “legal wrong because of agency action.” There is no statute that precludes relief and the agency certainly has no discretion to practice discrimination. As we have shown, Federal employees have for many years been prosecuting pay claims in this court under the general jurisdiction provided by 28 U.S.C. § 1491. We think that the statute and Executive Order cited herein have simply added another class of persons entitled to seek relief thereunder, namely, applicants of minority races. The Veterans’ Preference Act of 1944, as amended, 58 Stat. 387, (now found in scattered sections of 5 U.S.C., Supp. V (1965-1969)) contained no provisions for back pay or for bringing suit in the Court of Claims, however, we have granted relief on countless occasions when the procedural requirements of that Act had not been complied with Mallow v. United States, 161 Ct.Cl. 207 (1963); Stringer v. United States, 90 F.Supp. 375, 117 Ct.Cl. 30 (1950); Witt-ner v. United States, 76 F.Supp. 110, 110 Ct.Cl. 231 (1948). We have also granted relief in other cases where there was no specific right to sue given by the applicable statutes. In Betts v. United States, 172 F.Supp. 450, 145 Ct.Cl. 530 (1959), an action for military disability retirement compensation, the court said, 172 F.Supp. at 453-454, 145 Ct.Cl. at 536: This court has, of course, no authority to appoint persons to public office. It does have jurisdiction to award them money damages as compensation for violations of rights granted to them by statute or regulation. * * * In Weiss v. United States, 408 F.2d 416, 418, 187 Ct.Cl. 1, 5 (1969), we said: * * It is well established that it is within our jurisdiction to review and, in the appropriate case, reverse a decision of a Service Secretary which arbitrarily reverses a correction board’s decision and findings. * * * As we see it, when plaintiff made application for employment with a Federal agency, she came under the protection of the Executive Orders, which by terms and by implication, apply to applicants as well as employees. The very concept of “equal employment opportunity” must necessarily be concerned with persons seeking employment. Sec. 2 of E.O. 11478 directs agency heads to “establish and maintain an affirmative program of equal employment opportunity for all civilian employees and applicants” (emphasis supplied). The CSC is then directed to “provide for the prompt, fair and impartial consideration of all complaints of discrimination in Federal employment” (emphasis supplied). The Order draws no distinctions between employes and applicants and we think none was intended. It has been found that plaintiff’s rights under E.O. 11478 have been violated and that she has been prejudiced thereby. She is therefore entitled to the only remedy this court is authorized to give, a money judgment. Plaintiffs in the companion case of Allison v. United States, Ct.Cl., 451 F.2d 1035 (1971), decided today, have called our attention to Comp.Gen. B-165571, 50 Comp.Gen.- (decided February 19, 1971), upholding the claim of a black applicant to back pay when discriminated against by being hired at Grade GS-9 when a white person would have been hired for the same duties at GS-11. The opinion distinguishes prior GAO holdings that back pay is unavailable in cases of discriminatory failure to promote, and would appear to be consistent with the distinction we draw here: between the usual no-promotion claim, such as Gnot-ta, supra, requiring the court to exercise administrative discretion if it grants relief and cases such as this, where administrative findings and concessions remove all discretionary elements from the case. We believe that the exercise of discretion is the true bar where it remains for exercise if plaintiff is to recover. We do not see any validity to a distinction between an old employee, not promoted, and a new one, not hired, in either case claiming pay for a job he never held. Our research discloses only one case in this court which is not compatible with the decision reached here; Hyman v. United States, 157 F.Supp. 164, 138 Ct. Cl. 836 (1957). In that case, (not cited by either party herein) the plaintiff had been properly separated from Federal employment by a reduction in force. However, under applicable CSC regulations, she continued to have “re-employment priority rights” entitling her to be hired before certain other persons should a position for which she was qualified became available. Such a position did become available, but the agency refused to re-hire her. Upon appeal, the BAR ordered the agency to employ her with appointment retroactive to the date she should have been hired. This court refused to award back pay, holding, 157 F. Supp. at 168, 138 Ct.Cl. at 842 that she was not “entitled to be paid for a job to which she was not appointed and from which she was not, of necessity, removed.” However, no case was cited as authority to support the decision and in restrospect, we think it was wrongly decided. Our decision here necessarily overrules Hyman. It may be that this case has First Amendment implications such as were discussed in Swaaley v. United States, 180 Ct.Cl. 1, 376 F.2d 857 (1967), but since recovery is allowable under the Executive Order, we need not inquire into that possibility. Accordingly, we hold that plaintiff can recover back pay from March 17, 1967, the date defendant admits she should have been hired, until March 9, 1970, the date she was employed pursuant to the Order of the BAR, less any amount she might have earned in the interim. Plaintiff’s motion for summary judgment is granted and defendant’s motion is denied, the amount of recovery to be determined under Rule 131(c) (2).
DAVIS, Judge (concurring): Adhering to Judge Nichols’ opinion, I wish to add some comment on the dissents, both of which discuss an issue not presented to us, not argued, and which, under our practice, should not be considered by the court. I When the case was briefed, argued orally, and submitted, both parties were agreed that plaintiff should be deemed to have been discriminatorily denied federal employment. This was, of course, the foundation of plaintiff’s petition and argument. The operative administrative determinations were of the same view. The formal decision of the Director of Equal Employment Opportunity of the Department of Health, Education and Welfare said that “Mrs. Chambers was indeed discriminated against * * * ”, and “We find that the denial of equal opportunity for employment in the instant case was based substantially on the applicant’s previous racial discrimination complaint and that such denial constituted a violation of Executive Order 11478 and Department regulations pursuant thereto.” The Board of Appeals and Review of the Civil Service Commission declared that the Department “found that Mrs. Chambers’ complaint of discrimination was substantiated”, “that the Department’s decision found that Mrs. Chambers was discriminated against because of her race in her failure of appointment”, and “the Department found that Mrs. Chambers was subject to discriminatory treatment in 1967.” The Commission did not overturn that finding; on the contrary, it sought to implement it. In this court the Government did not challenge or reject, in any way, this administrative finding o.f discrimination. Its sole defense was that there is no basis in law for the award of back pay to a person denied government employment due to racial discrimination. Both in its brief and orally, the defendant conceded (or at least expressly declined to challenge) the finding of discrimination and of violation of the Executive Order. There is no argument on the point in either side’s brief. In fact, as the case was submitted to the court, there was no evidentiary predicate for challenging the administrative finding since neither party had filed or proffered the transcript of the agency hearing or the HEW investigative report. The only parts of the record that we had before us were the formal decisions of the HEW Director of Equal Employment Opportunity and of the Commission’s Board of Appeals and Review. That was the record on which we were asked by the parties to base our decision. After oral argument, some of the judges asked, sua sponte and individually, for the agency transcript and the investigative report. These were supplied pursuant to the requests. The quotations in the dissents are taken from these documents, obtained after argument as a result of these requests. So far as I can tell, this is the first occasion (at least since I came to the court) on which a judge of this court has rejected sua sponte, in a government personnel case, an administrative finding favorable to the individual, even though the defendant has not asked us to overturn the finding but, rather, has acquiesced in it. We have had many instances in which (by administrative process) some benefit or relief was granted, or some prior adverse action rectified, but the claimant sought still further relief in this court on the basis of the administrative determination in his favor. Our uniform practice has been to accept the favorable personnel determination (if not challenged), and simply to decide whether additional relief is warranted. If the defendant is content to acquiesce in the basic determination, and to argue merely that the plaintiff has already had what is rightly coming as a result of that favorable holding, we do not interject ourselves into the merits of the determination by considering whether the Government’s favorable administrative ruling was in fact correct. This unbroken practice accords, of course, with the normal rule that courts deal only with the issues actually presented, as well as with the constraints we impose on pay-case plaintiffs — who are barred from raising in this court points that they failed to make before the Civil Service Commission. See Dar-go v. United States, 176 Ct.Cl. 1193, 1201 (1966); Pine v. United States, 371 F.2d 466, 178 Ct.Cl. 146 (1967). In this case, the Government did not challenge, at the Commission level or the court level, the correctness of the administrative finding of discrimination, and neither side broached that issue before the court. Nevertheless, the dissents launch, on their own, an attack on the administrative determination. Thus, what the dissenting opinions do is unique and contrary to our regular procedure. In my view, there is no warrant for this departure, and the opinions give no reason for such an unprecedented reaching out, in this particular case, to grasp and decide an issue not raised or before us. II I have stressed that the merits of the finding of discrimination are not properly before us, but nevertheless, in order to minimize possible misapprehension by readers of these opinions, it is appropriate to point out the dissents’ mistaken conception of the actual finding. Those opinions treat plaintiff as if she were simply a “troublemaker”; the discussion fails to recognize that racial matters were at the core of this complaint of “troublemaking.” The formal HEW decision was; “We find that the denial of equal opportunity for employment in the instant case was based substantially on the applicant’s previous racial discrimination complaint and that such denial constituted a violation of Executive Order 11478 and Department regulations pursuant thereto.” The reference to “applicant’s previous racial discrimination complaint” was to the report from her previous employer, Beckley Appalachia Regional Hospital [BARH], that “she was a perennial troublemaker who, during her BARH employment, was not averse to frivolously alleging racial discrimination and calling on the NAACP.” The HEW office which refused to hire plaintiff admitted that it had made no inquiry whether or not her complaints of racial discrimination while at the hospital were in fact frivolous, but simply accepted the hospital’s report as true and a datum. The question then is whether it can be considered a violation of the Executive Order against racial discrimination for an agency to refuse to hire an applicant on the mere say-so of a former employer that she had improperly charged racial discrimination by that former employer. There is considerable material bearing on this question. Section 704(a) of the 1964 Civil Rights Act, 42 U.S.C. § 2000e-3(a), provides (in relevant part): “It shall be an unlawful employment practice for an employer to discriminate against any of his employes or applicants for em-loyment * * * because he has opposed any practice made an unlawful employment practice by this title or because he has made a charge, testified, asserted or participated in any manner in an investigation, proceeding, or hearing under this title.” Statutory precedent foreshadows thus treating as a racial discrimination an employer’s adverse action based on the employee’s (or applicant’s) standing up for his rights. Section 8(a) (4) of the National Labor Relations Act, 29 U.S.C. § 158(a) (4), makes it “an unfair labor practice for an employer * * * to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this chapter;” and Section 15(a) (3) of the Fair Labor Standards Act, 29 U.S.C. § 215(a) (3), has a similar provision as to the unlawfulness of discriminating against an employee who has filed a complaint. Cf. Edwards v. Habib, 130 U.S.App.D.C. 126, 397 F.2d 687 (1968) (outlawing evictions retaliating against the tenants’ reporting of housing violations). Under the Civil Rights Act, Pettway v. American Cast Iron Pipe Co., 411 F.2d 998 (C.A.5, 1969), holds that an employer cannot discharge an employee who, in the employer’s view, has filed with the Equal Employment Opportunity Commission a false and malicious charge of racial discrimination against the employer. “The Act will be frustrated if the employer may unilaterally determine the truth or falsity of charges and take independent action.” 411 F.2d at 1005. “The employer may not take it on itself to determine the correctness or consequences of [the allegedly false charge of racial discrimination]. Nor may the court either sustain any employer disciplinary action or deny relief because of the presence of such malicious material.” 411 F.2d at 1007. The employer’s good faith will not insulate him. 411 F.2d at 1005. See, also, Ba-rela v. United Nuclear Corp., 317 F.Supp. 1217 (D. New Mex. 1970), holding it an unlawful employment practice under the Civil Rights Act to refuse to process an applicant’s employment application simly because he had filed with the Equal Employment Opportunity Commission a charge of discrimination against another employer. These materials demonstrate that, at the least, much can be said for the position on racial discrimination taken by HEW in plaintiff’s case, and accepted by the Civil Service Commission. Moreover, the hiring of another black applicant, instead of the plaintiff, would not, of itself, show that there was no racial discrimination against her. It could very well be discrimination to refuse to take on a black who would insist on her proper rights, substituting another who would perhaps be more quiescent or docile. Nor would it be enough to disprove discrimination that the HEW official who rejected plaintiff may have been subjectivey free of personal prejudice; his decision “could remain discriminatory if founded upon testimony or evidence which was tainted by racial prejudice.” London v. Florida Dept, of Health and Rehabilitative Services, etc., 448 F.2d 655, p. 657 (C.A.5, 1971). . It is not uncommon for the court to request additional parts of an administrative record where they bear on a point presented for decision. This case is unique in that the requested portions of the administrative record bore only on a matter not put into issue and not presented for decision. . Reported cases since 1962 include: Aflague v. United States, 309 F.2d 753, 159 Ct.Cl. 80 (1962) ; Kleinfelter v. United States, 318 F.2d 929, 162 Ct.Cl. 88 (1963) ; Russell v. United States, 320 F.2d 920, 162 Ct.Cl. 544 (1963) ; Schiffman v. United States, 319 F.2d 886, 162 Ct.Cl. 646 (1963) ; Morris v. United States, 163 Ct.Cl. 259 (1963) ; Barnes v. United States, 163 Ct.Cl. 321 (1963) ; Sofranoff v. United States, 165 Ct.Cl. 470 (1964) ; Akol v. United States, 166 Ct. Cl. 182 (1964) ; Akol v. United States, 167 Ct.Cl. 99 (1964) ; Berner v. United States, 168 Ct.Cl. 247 (1964) ; Morris v. United States, 171 Ct.Cl. 220 (1965) ; Motto v. United States, 348 F.2d 523, 172 Ct.Cl. 192 (1965) ; Friestedt v. United States, 352 F.2d 530, 173 Ct.Cl. 447 (1965) ; Paroczay v. United States, 369 F.2d 720, 177 Ct.Cl. 754 (1966) ; Wason v. United States, 179 Ct.Cl. 623 (1967) ; Miller v. United States, 180 Ct.Cl. 872 (1967) ; Seebach v. United States, 182 Ct.Cl. 342 (1968) ; Hamlin v. United States, 391 F.2d 941, 183 Ct.Cl. 137 (1968) ; Biddle v. United States, 186 Ct.Cl. 87 (1968) ; Mross v. United States, 186 Ct.Cl. 165 (1968). . Section 703(a), 42 U.S.C. § 2000e-2(a), declares it “an unlawful employment practice” for an employer to discriminate on the ground of race (among other things). . The London opinion says: “It is much too superficial to reason that even though some of the complaints registered against plaintiff were racially motivated, London’s rights were not impaired since the Welfare Board [the deciding tribunal] was not so motivated. Whatever the conscious motivations of the individual members of the Board, its decision to transfer London could remain discriminatory if founded upon testimony or evidence which was tainted by racial prejudice.”
COWEN, Chief Judge (dissenting): The court’s decision is based upon a pretrial stipulation of the parties that “the denial of equal opportunity for employment in the instant case was based substantially on the applicant’s previous racial discrimination complaint and that such denial constituted a violation of Executive Order 11478 and Department regulations pursuant thereto.” In most cases we accept the parties’ stipulations but, as the court’s opinion recognizes, we are not required to do so. In Swift & Co. v. Hocking Valley Ry. Co., 243 U.S. 281, 37 S.Ct. 287, 61 L.Ed. 722 (1917), the Supreme Court had before it a stipulation which the Court found was contrary to the facts shown in the record. In rejecting the stipulation and in deciding the case on the basis of the facts of record, the Supreme Court said: If the stipulation is to be treated as an agreement concerning the legal effect of admitted facts, it is obviously inoperative; since the court cannot be controlled by agreement of counsel on a subsidiary question of law. If the stipulation is to be treated as an attempt to agree “for the purpose only of reviewing the judgment” below, that what are the facts shall be assumed not to be facts, a moot or fictitious ease is presented. “The duty of this court, as of every judicial tribunal, is limited to determining rights of persons or of property, which are actually controverted in the particular case before it. * * * No stipulation of parties or counsel, whether in the case before the court or in any other case, can enlarge the power, or affect the duty, of the court in this regard.” [Id. at 289, 37 S.Ct. at 289 (footnote omitted).] After a study of the administrative record, I am convinced that we are faced with a similar situation in this case. Therefore, I would reject the stipulation. It is an adoption verbatim by the defendant of a determination made by the Director of the Equal Opportunity Staff of the Department of Health, Education and Welfare on review of the facts set forth in an investigative report and in a transcript of the testimony of a formal hearing held at plaintiff’s request. In my view, the administrative decision is not only without substantial evidentiary support in the record, but is also in direct conflict with the material evidence, including plaintiff’s own testimony, that was received in the course of the investigation and the hearing. It is also contrary to the facts found by the investigator, who personally interviewed seven witnesses, and contrary to findings of the hearing officer, who heard the sworn testimony of plaintiff and of Mr. Dwight Billings, District Manager of the Beck-ley, West Virginia, Office of the Social Security Administration, the official charged with racial discrimination in this case. The administrative proceedings began with an investigation and report of May 29, 1967, on plaintiff’s complaint, which was made after the District Manager had denied her application for employment in 1967. It is important, I think, to examine carefully the specific charges made by the plaintiff. As found by the investigator, these were: 1. The district manager denied employment to her in March 1967, because of an inaccurate and demeaning reference report which was submitted by the BARH. 2. The district manager erred in assigning weight to the reference report. (Complainant is sure the report came from Charles D. Holland, who, being anti-Negro, discriminated against her during her employment at the BARH.) 3. Immediately prior to receipt of the reference report from the BARH, the district manager gave her direct indications that he would recommend her for employment if the BARH reference report proved good — proof positive that, but for the report, she would have been employed by SSA. The complainant believes that the sum of these elements amounts to racial discrimination against her by the SSA and/or district manager. However, she concedes that SSA and/or the district manager may not have discriminated against her directly, citing her firm belief that SSA and/or the district manager would have hired her in October 1965 had she not taken employment at the BARH. It is undisputed that Mr. Billings rejected plaintiff’s application for employment on the basis of two reports which he received from plaintiff’s last employer, the Beckley Appalachian Regional Hospital. The first was a report from her last immediate supervisor, Dr. Kist-in, who stated that she was an adequate employee but that he would not reemploy her, because the hospital administrator questioned her ability to get along with her co-workers. The second was a report from the Administrator of the hospital in which it was stated that plaintiff was a perennial troublemaker who was not adverse to frivolously alleging racial discrimination and calling in the NAACP. The investigation report further recites that Mr. Billings stated that in view of the information submitted by the hospital, “he felt it was best, under these circumstances, to seek out and recommend employment of someone who was equally well qualified and about whom there was no question of potential incompatability with his existing work force.” After considering the testimony and other evidence which he received, the investigator made the following findings: A. But for the reference report submitted by the BARH [management employees, complainant would have been recommended for employment by the district manager. However, neither the accuracy, of the report not [sic] the validity of its demeaning content has been determined. B. The district manager assigned substantial — and crucial — weight to the BARH reference report. However, in doing so, he did not err under existing, applicable policies and regulations. C. Immediately prior to receipt of the BARH reference report, the district manager gave the complainant direct or indirect indication that he would recommend her for employment if the BARH reference report proved good. However, his doing so was more an acknowledgment, on his part, of the complainant’s awareness of her status vis-a-vis possible employment than a firm commitment to a definite course of action with respect to her application for employment. D. Notwithstanding the basic findings outlined in A-C above, the complainant, in seeking employment, was not discriminated against, because of race, by the Social Security Administration and/or the district manager. * -* * * * * On July 5, 1967, after the receipt of the investigation report, Mr. M. D. Dewberry, Regional Assistant Commissioner, made the following recommendation to Mr. Zawatzky, Deputy Assistant Commissioner : We recommend she be advised there was no discrimination based on race, color, religion or national origin. In her letter of June 27, 1967, she points out that we employed her cousin to fill the vacancy for which she was considered. Obviously,. the selection was made between two minority applicants —one with no prior service whose references were good, and one with prior service whose last employer in Beckley would not reemploy her. Also, the manager had some other reservations about Miss Bennett’s attitude from several contacts with her that he considered of minor importance until the former employer questioned her abiliity to get along with coworkers. We did not investigation the situation at the Beckley Appalachian Regional Hospital leading to the poor reference, since this would not appear to be under our jurisdiction at the present time, even though the hospital is certified under Medicare. The manager has enjoyed a good working relationship with that hospital, and certainly would not have questioned the integrity of their reference regarding Ma-drith Bennett. On July 20, 1967, Mr. Zawatzky wrote plaintiff that he had concluded that discrimination was not a factor in her failure to obtain employment in the District Office. However, he advised her of her right to a hearing in the event she was dissatisfied with the decision. At plaintiff’s request, a hearing was held on December 4, 1967. The transcript of the hearing contains the following testimony by plaintiff, in response to the questions of the hearing officer, Mr. Philip Janus: Q Miss Bennett, as I take it, a central part of your charge is that, in acting on references received from the hospital, Mr. Billings and the Social Security office acted in a racially discriminatory way by not looking behind or into the events that led to the reference from the hospital. Is that correct ? A That is correct, sir. Q I believe it is your position that, if the references had been satisfactory, you would have been hired. A This is correct. Q So, that, without leading, aside from this point — the references, you would not make a charge of discrimination on the part of Mr. Billings or the Social Security office; that is, they were prepared to hire you. A This is my feeling, sir. (Transcript of hearing at page 5) ****** A Well, as I earlier stated, this discrimination existed at the Beckley Appalachian Regional Hospital and it was transmitted by a reference check to Mr. Billings; it was just transferred from one institution to the other. Do you understand what I am saying ? (Transcript of hearing at page 6) ****** A * * * So, actually, it was racial tension and it was, in turn, transmitted to the Social Security Office. Whether Mr. Billings was aware of it, I have no knowledge of this, or what added to it in these regards. (Transcript of hearing at page 7) * * * * * * MR. JANUS [Hearing Officer]: Let me ask you this. Do you have any reason to believe that Mr. Billings did not want to hire you and used this as a convenient excuse not to hire you? Do you feel that he is prejudiced? MISS BENNETT: I can’t very well say that. I’ve been in Mr. Billings’ office, as he well knows, time and time again and he was always pleasant and he was always willing to take his time out to sit and talk to me and what have you and he told me to feel free to come in his office at any time that I wished to check and see if there was any vacancies and I truthfully couldn’t say that Mr. Billings is prejudiced. I couldn’t say this. It’s just a matter that he got hung up through an unfavorable reference where racial tension was involved. That’s the only thing I could say at this point. (Transcript of hearing at page 11) It should be pointed out that the plaintiff’s testimony, quoted immediately above, was modified to some extent later during the hearing when she said: * * * Would you have hired me on the basis of one unfavorable reference? Would you have hired me or would you not have hired me? It is a matter of opinion, really. I can’t say that he’s not prejudiced; I really can’t. But, as far as greeting me and going in his office, he made me feel at home and this type of thing. He talked to me and everything' but, when it came to hiring me, this was a different capacity altogether. I mean, he just took a different attitude based on that reference. (Transcript of hearing at page 18) Despite this slight change, it seems to me that this additional testimony amounts to little more than a repetition of the charge previously made by her that the District Manager erred in assigning undue weight to the unfavorable report made by the hospital. The transcript of the hearing was transmitted to the Director of the Equal Opportunity Staff with a report containing the following findings and recommendations : ****** 2) Mr. Billings, the Manager of the Beckley Social Security Office, was considering hiring Miss Bennett, and told her so. He decided not to after getting what he considered an unfavorable reference from her most recent employer. It appears to me to be a reasonable inference that his eventual decision not to hire her was not motivated by any racial prejudice on his part. 3) Mr. Billings said that it is his normal procedure to check references of all prospective employees. I can see no evidence that Miss Bennett was being unfairly treated by having her references checked before employment. 4) Miss Bennett did not charge, nor is there any indication, that Mr. Billings went out of his way or did anything unusual in asking for a reference from the Beckley Appalachian Regional Hospital, since it was Miss Bennett’s most recent employer. 5) It is Mr. Billings’ contention that one unfavorable reference is enough, in his mind, to decide not to hire a person, and he cited a previous occasion in which this had occurred and resulted in not hiring a white person. In the hearing I asked Miss Bennett whether she had any information of any contradictory action on the part of Mr. Billings, i. e., an instance in which he hired a white person even though he had an unfavorable reference, and she said she did not. 6) The issue, as I stated in the hearing, is not whether Mr. Billings was wise or unwise in ruling out an applicant on the basis of one negative reference. The issue is whether Mr. Billings did what he did because of Miss Bennett’s race. It is my conclusion, based on the testimony at the hearing, that there is no evidence of racially discriminatory behavior or action on the part of the Beckley Social Security Office. The facts and findings in the foregoing recitals from the administrative record may be summarized as follows: (1) The rejection of plaintiff’s application for employment was not based on racial discrimination but resulted from an unfavorable report from her former employer, which indicated that she would be an unsuitable employee. (2) It was the regular and normal practice of the District Office to obtain reports from the former employers of applicants, and the District Manager did not violate any applicable policies or regulations in relying on the unfavorable report. (3) Plaintiff did not claim or testify that the District Manager was actuated by racial bias in rejecting her application for employment. The substance of her complaint was that the District Manager erred in assigning undue weight to the unfavorable report made by the hospital; that racial discrimination existed at the hospital, and that this racial bias was transmitted to the Department of Health, Education and Welfare by the unfavorable report. She admitted that she did not know whether Mr. Billings, the District Manager, was aware of the discrimination practiced in the hospital. If the facts so found were not sufficient to refute the charges of racial discrimination, there remains the overriding fact that the District Manager employed Mrs. Diane Smith, another black person, in the position sought by plaintiff. All of the reports obtained from the references submitted by Mrs. Smith were good, and Mr. Billings decided that she would be a more suitable employee. It appears to me that the Health, Education and Welfare Equal Opportunity Director totally discounted findings of the special investigator and the hearing officer. Whether or not Mr. Billings was motivated by racial discrimination in denying Mrs. Chambers the position she applied for is a question of fact. Such a determination required an assessment of Mr. Billings’ credibility, taking into account not only his testimony but his demeanor. The special investigator and hearing officer both heard the testimony of Mr. Billings and believed his statement that race was not a factor in his decision. The resolution of this disposi-tive issue turned almost entirely on Mr. Billings’ credibility. The Director should have given great weight to the findings of the investigator and hearing officer, but I find no indication that he gave them any weight whatever. As the Supreme Court said in Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 496, 71 S.Ct. 456, 469, 95 L.Ed. 456 (1951), “[t]he significance of [an examiner’s] report, of course, depends largely on the importance of credibility in the particular case.” Where credibility is the most important factor, and where two examiners independently conclude that a particular witness is telling the truth, how can the reviewer responsibly discount their observations entirely? It is the examiner who “sees the witnesses and hears them testify, while the Board and the reviewing court look only on cold records.” National Labor Relations Board v. Walton Mfg. Co., 369 U.S. 404, 408, 82 S.Ct. 853, 855, 7 L.Ed.2d 829 (1962). In addition to the rejection of the findings made by the investigator and the hearing officer, it seems to me tha