Full opinion text
J. SKELLY WRIGHT, Circuit Judge: Plaintiff-appellant Ralph Hackley, a black employee of the Federal Government, brought suit in the District Court alleging racial discrimination in the employment practices of the Veterans Administration’s Investigation and Security Service Division. Having exhausted his administrative remedies without satisfaction, appellant contended that the Equal Employment Opportunity Act of 1972, Section 11, 42 U.S.C. § 2000e — 16 (Supp. Ill 1973), which amended Title VII of the Civil Rights Act of 1964 to encompass federal employees and to accord them the right to file a “civil action” after final agency action, entitled him to a trial de novo on his discrimination claims in the District Court. In response, appellees sought summary judgment on the basis of their assertion that, as a legal matter, the role of the District Judge in such civil actions was limited to review of the administrative record to ensure the existence of a rational basis for the agency’s decision and that, as a factual matter, the administrative record clearly indicated that there was a rational basis for the agency’s finding that there was an absence of discrimination against appellant. Judge Gesell granted appellees’ summary judgment motion since his analysis of the language and legislative history of the 1972 amendments to Title VII, and his perception of the policies implicated by the question of de novo proceedings, convinced him that Title VII did not accord an aggrieved federal employee the right to a trial de novo; however, he held that the administrative record must be scrutinized under the more demanding preponderance of the evidence standard of review. Although we believe there may be some merit to the concerns which motivated Judge Gesell’s holding, we are of the opinion that Congress intended to bestow on federal employees the same rights in District Court — including the right to a trial de novo —which it had previously mandated for private sector employees, and that the Federal Rules of Civil Procedure are flexible enough to enable trial judges to prevent such de novo trials from unduly burdening the courts or substantially duplicating agency proceedings. Accordingly, we reverse the grant of the motion for summary judgment and remand the case to the District Court for further proceedings consistent with this opinion. I On June 29, 1967 appellant Hackley transferred from a GS-7 position with the District of Columbia Department of Public Welfare to a GS-7 position as a General Investigator in the Investigation and Security Service Division (I&S) of the Veterans Administration (VA). Before appellant was hired at the insistence of Mr. Holland, I&S’ then recently appointed black Director, I&S had never had a black investigator. During Mr. Holland’s tenure as Director of I&S, appellant progressed from GS-7 to GS-12, reaching the latter rating in November 1969. Shortly thereafter, Mr. Holland was succeeded by Mr. Maiers, a white Director. In February 1971 appellant complained that Mr. Maiers and his assistant, Mr. Rettew, had denied him a promotion to the level of GS-13 solely because of racial discrimination. An informal investigation of the allegation was conducted by an Equal Employment Opportunity counselor, who interviewed five of appellant’s past and present supervisors; the: counselor recommended that appellant be promoted because, inter alia, there were no written job standards at I&S, thus leaving the question of promotions “to the personal likes and dislikes of the supervisors,” who ostensibly considered appellant lacking in experience and deficient in the areas of field investigation and report writing necessary for such a promotion. When the EEO counselor informed appellant that VA management had rejected this recommendation, he lodged a formal complaint of racial discrimination with the VA on March 22, 1971, asserting that Messrs. Rettew, Maiers, and Turner (Assistant Administrator of the VA for Management and Evaluation) were responsible for the allegedly discriminatory acts. A formal investigation of this complaint was conducted during April 1971 by Mrs. Kinnebrew, a VA employee. In her final written report, she concluded that appellant’s work assignaments and a lack of communication with management had “placed him in a cycle of discriminatory circumstances.” She perceived a “vast difference” in the assignments given appellant (predominantly assistance to white investigators on cases concerning blacks, with accountability to numerous supervisors) and those given Mr. Sandleman, a white GS-12 investigator hired after appellant (predominantly assigned his own cases concerning whites, with accountability to a single supervisor). Although she recommended that actions be taken to avoid such a cycle of discriminatory circumstances in the future, and that job standards be reduced to writing and the length of the training program spelled out, these remedial actions were not taken by appellant’s superiors and his dispute remained unresolved. After being informed by Mr. Turner that no promotion would be forthcoming and that he had the option of requesting a decision by the VA’s General Counsel either without or after a hearing on his complaint, appellant demanded a hearing. A Civil Service Commission (CSC) employee, Mr. Knazik, was designated the complaints examiner for the purpose of holding the formal hearing. Although no prehearing depositions were taken or other discovery allowed, appellant was represented by counsel at the hearing and was permitted to present and cross-examine available witnesses. The hearing spanned seven days and was comprised of testimony from 19 persons, including appellant; upon its completion, Mr. Knazik filed a report to the VA stating various findings and concluding that there was no evidence to support a claim of racial discrimination in the failure to promote appellant. In a letter to appellant, the Assistant General Counsel of the VA adopted Mr. Knazik’s findings and recommended decision as the final VA position and notified appellant of his right to appeal the decision to the CSC’s Board of Appeals and Review (BAR). Appellant filed such an appeal and the BAR requested the VA to supplement the hearing record by providing additional data concerning the races of certain I&S personnel as well as their promotion records. This information, supplied to the BAR in an unsworn memorandum by Mr. Turner, one of the officials accused by appellant of racial discrimination, was not subject to rebuttal by appellant, although it was discussed in the BAR’s decision reviewing his complaint. On May 22, 1972 the BAR affirmed the VA decision and advised appellant that there were no further administrative remedies available. Appellant subsequently instituted the current suit against the Administrator of the VA, Messrs. Maiers, Rettew, and Turner, and the three members of the CSC, all in their official capacities. II Title VII of the Civil Rights Act of 1964, Pub.L. No. 88-352, 78 Stat. 253 et seq. (codified at 42 U.S.C. § 2000e et seq.), which generally prohibits employment discrimination based on an individual’s race, color, religion, sex, or national origin, originally was inapplicable to federal employees. Although Congress did declare it to be “the policy of the United States to insure equal employment opportunities for [federal] employees without discrimination because of race, color, religion, sex, or national origin,” and although several Executive Orders reiterated that policy and charged the CSC with its enforcement, specific implementing legislation was not enacted until the Equal Employment Opportunity Act of 1972, Pub.L. No. 92-261, 86 Stat. 103 et seq., extended the protections of Title VII so as to embrace federal employees. Notwithstanding the constitutional right to be free from such discrimination, federal employees attempting to enforce that right before 1972 had been faced with virtually insuperable obstacles to judicial rulings on the merits of their claims. This anomalous situation was dramatically altered by the promulgation, as Section 11 of the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16 (Supp. Ill 1973), of Section 717 of the Civil Rights Act of 1964. Subsection 717(a) of Title VII, 42 U.S.C. § 2000e-16(a), specifies that “[a]ll personnel actions affecting employees or applicants for employment * * * in executive agencies [of the United States] * * * shall be made free from any discrimination based on race, color, religion, sex, or national origin,” while subsection 717(b) of Title VII, 42 U.S.C. § 2000e-16(b), authorizes the CSC to enforce subsection (a) through dispensation of appropriate remedies and issuance of necessary rules and regulations. The crux of the instant case involves the meaning of subsections 717(c), (d) of Title VII, 42 U.S.C. §§ 2000e — 16(c), (d), which explicitly provide that a federal employee aggrieved by the administrative disposition of his complaint or the failure of administrative action within certain time limits may file a “civil action” in the District Court: (c) Civil action by employee or applicant for employment for redress of grievances; time for bringing of action; head of department, agency, or unit as defendant. Within thirty days of receipt of notice of final action taken by a department, agency, or unit referred to in subsection (a) of this section, or by the 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, agency, 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) Section 2000e-5(f) through (k) of this title applicable to civil actions. The provisions of section 2000e-5(f) through (k) of this title, as applicable, shall govern civil actions brought hereunder. (Emphasis added.) We must determine the proper contours of the “civil action” which federal employees may institute under these provisions. In particular, we must reassess Judge Gesell’s conclusion that subsections 717(e) and (d) do not accord those federal employees who have received an administrative hearing on their complaint the right to a trial de novo in federal court on their allegations of employment discrimination. Judge Ge-sell had determined that: The grant of jurisdiction to the Federal Courts [by subsection 717(c)] leaves open how that jurisdiction should be exercised. * * * ****** The Federal Courts are free to act in whatever manner may be appropriate, case by case, consistent with experience and precedent. Precious rights of individuals are involved and these must not be obfusticated [sic] by Procrustean adherence to standards of review that are more semantic than substantial. There is a need to establish an especially high standard of review in government employment cases, involving aspects of discrimination prohibited by the Civil Rights Act of 1972, but an interpretation that embraces an automatic requirement of trial de novo in all instances with all its inherent uncertainties and substantial delays will defeat rather than advance the Act’s objectives. The trial de novo is not required in all cases. The District Court is required by the Act to examine the administrative record with utmost care. If it determines that an absence of discrimination is affirmatively established by the clear weight of the evidence in the record, no new trial is required. If this exacting standard is not met, the Court shall, in its discretion, as appropriate, remand, take testimony to supplement the administrative record, or grant the plaintiff relief on the administrativé record. This hybrid approach — limiting the District Judge to a review of the administrative record but requiring him to reassess the evidence to decide where the preponderance lies — may appear to strike a nice compromise between the opposing parties’ contentions in this case, and between those courts which have found a right to a trial de novo and those which have merely reviewed the administrative record under a substantial evidence standard, but we find no basis for this holding in the language or legislative history of the 1972 amendments. Rather, we believe that Congress did intend to provide federal employees the right to a trial de novo,'and that the preponderance test is to be applied as a normal concomitant of any civil action which involves such a trial de novo. A. To be sure, Section 717 of Title VII does not explicitly declare that the “civil action” instituted by an aggrieved federal employee is to be a trial de novo. However, even without the support of the legislative history of the 1972 amendments it would appear on closer scrutiny that the structure of Title VII indicates that such a de novo proceeding was intended by Congress. Subsection 717(c) of Title VII permits an aggrieved federal employee to “file a civil action as provided in section 2000e-5 of this title [42 of the U.S. Code, Section 706 of Title VII],” and subsection 717(d) specifies that the “provisions of section 2000e-5(f) through (k) of this title [42 of the. U.S. Code, subsections 706(f)-(k) of Title VII], as applicable, shall govern civil actions brought hereunder.” (Emphasis added.) Section 706 contains the enforcement provisions of Title VII, and subsections 706(f)-(k) specify the parameters of the “civil actions” which may be brought to remedy private sector discrimination. Subsection 706(f) provides, inter alia, for jurisdiction and specific venue requirements in the United States District Courts, for an expedited “hearing” of the case, for discretionary appointment of a master if the judge “has not scheduled the case for trial within one hundred and twenty days after issue has been joined,” and for court appointment of counsel and waiver of fees and court costs in appropriate circumstances. Subsection 706(g) grants the courts broad remedial powers, while subsection 706(j) renders the civil action appealable under 28 U.S.C. §§ 1291, 1292 (1970). Finally, subsection 706(k) specifies that the court may award the prevailing party a reasonable attorney’s fee as part of the costs of the action, and subjects the United States to the same liability as private litigants. The provisions of Section 706 have been interpreted by the Supreme Court to grant an aggrieved- private sector litigant the right to a trial de novo on his or her employment discrimination claim, see Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974) (private sector employee’s right to trial de novo under Title VII is not foreclosed by prior submission of claim to final arbitration under nondiscrimination clause of collective bargaining agreement); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798-799, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (EEOC finding of “no reasonable cause” to believe Title VII was violated does not bar trial de novo of private sector employee’s Title VII claims), and before the 1972 amendments, the essentially identical provisions governing private sector suits were held to be de novo proceedings which were not interdicted by an EEOC finding of “no reasonable cause.” See, e. g., Robinson v. Lorillard Corp., 444 F.2d 791, 800 (4th Cir. 1971); Beverly v. Lone Star Lead Construction Corp., 437 F.2d 1136 (5th Cir. 1971); Flowers v. Local No. 6, Laborers International Union of North America, 431 F.2d 205 (7th Cir. 1970); Fekete v. U. S. Steel Corp., 424 F.2d 331 (3d Cir. 1970). See also Alexander v. Gardner-Denver Co., supra, 415 U.S. at 45-46 n. 5, 94 S.Ct. at 1018. Thus, since subsection 717(d) merely provides that the statutory subsections relating to private sector civil actions shall also govern the federal employee civil actions, it would appear that the latter should also be conducted as de novo proceedings. Nevertheless, appellees and the District Court rely on the fact that subsection 717(d) only directs that federal employee civil actions be governed by private sector employee provisions “as applicable” to support their position that Congress did not intend to accord federal employees the same right to a de novo trial possessed by private sector employees. More particularly, appellees note that subsection 717(c) allows an aggrieved federal employee to file a civil action when the final agency or CSC determination is adverse or when the agency or CSC has delayed adjudicating the claim for over 180 days; they insist that Section 706 procedures that are appropriate when the claimant enters federal court without an administrative record because of agency inaction should not be “applicable” once such a record has been compiled. However, a closer look at the language and structure of subsection 717(d) and Section 706 would tend to discredit any notion that the “as applicable” language was intended by Congress to constitute a vehicle according the District Judge discretion to, in Judge Ge-sell’s terms, “act in whatever manner may be appropriate” in the judge’s view of the case and to choose from among the provisions of Section 706. Rather, it seems most logical that the “as applicable” language expresses a congressional recognition that the referenced subsections of Section 706 also pertain to “civil actions” instituted by the EEOC and the Attorney General, and that language in subsections 706(f) through (k) relating to such suits, as opposed to suits brought personally by private sector litigants, is clearly not “applicable” to federal employee civil actions. Surely Congress, in stating that the provisions of subsections 706(f)-(k) “shall govern” federal employee civil actions, did not intend to allow District Judges to escape that requirement by determining that various provisions are not “applicable” to such litigation. And surely Congress, had it considered the disparity in the posture of cases coming to District Court after agency inaction and final agency action to be so substantial as to merit the considerably different treatments of trial de novo and mere review of the administrative record, would have specified that distinction with particularity rather than rely on the amorphous “as applicable” device. This is particularly plausible when it is observed that of the four points in the administrative process at which a federal employee may bring a “civil action,” only one would entail the absence of an administrative record. If almost all federal employee suits would be review proceedings rather than de novo proceedings, we believe Congress would have affirmatively indicated that in some manner, rather than having the unrestricted provisions of Section 706, which unequivocally accord private sector litigants the right to a trial de novo and which “shall govern” federal employee civil actions, obliquely limited through the “as applicable” language of Section 717(d). Moreover, if Congress had intended that a federal employee “civil action” commenced after compilation of an administrative record would be a review of the agency action rather than a trial de novo, it is most probable that it would have clarified the standard under which such review would proceed. And if review of the administrative record was intended, we doubt that Congress would have placed jurisdiction in the District Courts rather than in the Courts of Appeals. Finally, the incongruity of the District Court’s approach in interpreting the “as applicable” language of Section 717 so as to allow it to choose which of the provisions of Section 706 apply not only to private sector employee “civil actions,” but also to federal employee “civil actions,” may be seen from the distortion it would require in the language of Section 706. It would, in effect, result in holding that sentences should be parsed so that they would be partially “applicable” and partially not “applicable.” For example, subsection 706(f)(5) directs the District Judge assigned to a Title VII case “to assign the case for hearing at the earliest practicable date and to cause the case to be in every way expedited.” (Emphasis added.) We doubt that anyone would contend that private sector employee “civil actions” are to be expedited under this congressional command but that federal employee “civil actions” are not to be so expedited. Yet this command is part and parcel of a sentence requiring a “hearing” of the action, which would not occur if the District Judge could merely decide the case on the administrative record. Similarly, subsection 706(f)(5) provides that “[i]f [the district] judge has not scheduled the case for trial within one hundred and twenty days after issue has been joined, that judge may appoint a master pursuant to rule 53 of the Federal Rules of Civil Procedure.” (Emphasis added.) Yet the District Court in this case suggested that the master provision of the Act would apply to federal employee actions at the same time that it held that there is no requirement of a trial in such cases; indeed, it used the possibility of appointment of a master as an affirmative reason for holding that there is no requirement of a trial de novo. In short, we believe that the language of Section 717 fits better with the de novo trial interpretation. Subsection 717(c) authorizes federal employees to file “civil actions” in the same manner as Section 706 authorizes private sector employees to file “civil actions,” and subsection 717(d) directs federal courts to apply the same procedures in federal and private sector “civil actions.” It is well established that the latter are trials de novo, and the congressional directive of equal procedures thus requires the former to also be trials de novo. We can only view the purportedly qualifying phrase of subsection 717(d) — “as applicable” — as nothing more than a recognition that the referenced provisions of Section 706 cover EEOC and Attorney General “civil actions” as well as individual private sector employee “civil actions,” and that the latter are the relevant provisions to analyze in determining what procedures govern federal employee actions. In any event, to the extent the “as applicable” language creates ambiguity as to congressional intent, we believe the legislative history of and the policies underlying Section 717 dictate resolution of any possible statutory ambiguity in favor of the trial de novo. B. The legislative history of the 1972 amendments to Title VII, although somewhat sketchy and at times internally inconsistent on the issue sub judiee, basically reinforces the proposition that Congress intended to accord aggrieved federal employees the right to a trial de novo on their discrimination claims in District Court. Since the 1972 amendments underwent substantial transformation during the congressional proceedings, we will first describe the salient changes and relevant debate chronologically, and then proceed to a fuller development of our views concerning the import of this history in ascertaining congressional intent. 1. On June 2, 1971 the House Committee on Education and Labor reported out H.R. 1746, 92d Cong., 1st Sess. (1971), known as the “Hawkins Bill” after its chief sponsor, Representative Hawkins. The basic purpose of the Hawkins Bill was the conferral of judicially enforceable cease and desist authority on the Equal Employment Opportunity Commission (EEOC), which had no enforcement powers whatever under the original Title VII of the Civil Rights Act of 1964. Detailed provisions of the bill specified the procedures under which the EEOC could issue cease and desist orders, which were subject to a limited substantial evidence on the record considered as a whole” review in the United States Courts of Appeals. Nevertheless, the right of private sector employees to file a “civil action” in certain circumscribed situations was explicitly retained under Section 8(j) of the bill; such actions, as noted above, had been held to be trials de novo under the unamended Civil Rights Act of 1964. Moreover, in extending Title VII coverage to federal employees, Section 11 of the Hawkins Bill invested the EEOC with enforcement responsibility and provided that an aggrieved federal employee could file a “civil action” within 30 days after receipt of notice of final agency action on his discrimination complaint. The provisions of Section 8(j) of the Hawkins Bill, which specified the procedures governing the “civil action” of an aggrieved private sector employee, and not the provisions of Section 4, which governed the substantial evidence review of EEOC cease and desist orders, were to govern the federal employee’s “civil action.” The House Report on the Hawkins Bill noted the “paramount” importance of eradicating employment discrimination by the federal government; it emphatically declared that “there can exist no justification for anything but a vigorous effort to accord Federal employees the same rights and impartial treatment which the law seeks to afford employees in the private sector.” After sketching the Government’s abysmal record in minority employment, the Report laid much of the blame at the doorstep of the Civil Service Commission, which had been charged with enforcing federal employees’ constitutional rights to be free from discrimination, as embodied in Executive Orders 11246 and 11478. The Report attacked the CSC’s newly revised complaint process, a “critical defect of the Federal equal employment program,” for having, “impeded rather than advanced” the goal of equal employment opportunity; the whole structure of the system was found to create an inherent conflict of interest, and employee confidence in the effectiveness of the procedures was found to be generally lacking. To overcome these structural defects so that the entrenched discrimination in federal employment could be effectively combatted, the House Report recommended the transfer of enforcement power to the EEOC, which was considered an impartial tribunal. Despite this proposed improvement in the complaint process, aggrieved employees were to be authorized to “file a civil action in the same manner as in Section 715,” the section of the bill retaining the private civil action of private sector employees, after final agency action on the discrimination charge. On the floor of the House, considerable opposition was expressed to the cease and desist powers embodied in the Hawkins Bill, and by a narrow vote on September 16, 1971 the Erlenborn Bill, H.R. 9247, 92d Cong., 1st Sess. (1971), was adopted as a complete substitute for H.R. 1746. Denying the EEOC any cease and desist powers, the Erlenborn Bill instead granted the EEOC the right to file a civil action in the District Courts, which would be charged with Title VII’s enforcement responsibilities. Although the private sector employee’s right to file a civil action in the absence of EEOC success in obtaining voluntary compliance or the failure of the EEOC to file a civil action was preserved, the Erlenborn Bill did not extend the protections of Title VII to federal employees. Meanwhile^ on September 14, 1971 Senator Williams had introduced S. 2515, 92d Cong., 1st Sess. (1971), which substantially paralleled the Hawkins Bill, granting the EEOC cease and desist powers, bringing federal employees within the ambit of Title VII with enforcement powers in the EEOC, and according aggrieved federal employees recourse to the District Courts. The amended version of S. 2515 which eventually emerged from the Senate Committee on Labor and Public Welfare (the “Committee Bill”) retained cease and desist authority over private sector discrimination in the EEOC, with substantial evidence review in the Courts of Appeals. The Committee hammered out a compromise, however, on the provisions relating to federal employment: enforcement responsibility with respect to federal employees was returned to the Civil Service Commission, although an aggrieved employee was granted the option of filing a “civil action” after either final action by the agency or by the CSC on appeal, or after inaction by either the agency or the CSC for 180 days from the filing of the original charge or the taking of an appeal. This compromise established the structure of Section 717 which the Congress ultimately enacted, and even the language of the Committee Bill remained essentially unchanged throughout the remainder of the Act’s consideration. The Committee Bill also specified that under certain circumstances private sector employees could still bring civil actions in the District Court, and these civil actions would presumably be trials de novo. Like the Hawkins Bill in the House, the Committee Bill specified that these provisions governing private sector employee civil actions, and not the section of the Committee Bill governing review proceedings of final EEOC action, would govern federal employee civil actions. After repeating the concerns expressed in the House Report with respect to the high priority of rooting out all discrimination in federal employment, and reiterating the failure of the federal government to even begin to adequately redress its serious shortcomings in this area, the Senate Report on the Committee Bill zeroed in on the CSC’s complaint procedures. Like the House Report, the Senate Report recited the litany of inadequacies in the CSC complaint process and bemoaned the lack of employee confidence in that process. Nevertheless, although echoing the House recognition that the system created a built-in conflict of interest, the Senate Report related the CSC’s sincere desire to overcome that apparent conflict and the Committee’s belief that the CSC possessed “the will and desire to overcome any such conflict of interest.” The Senate Report also elaborated on the importance of the employee’s right to file a civil action in certain situations: An important adjunct to the strengthened Civil Service Commission responsibilities is the statutory provision of a private right of action in the courts by Federal employees who are not satisfied with the agency or Commission decision. The testimony of the Civil Service Commission notwithstanding, the committee found that an aggrieved Federal employee does not have access to the courts. In many cases, the employee must overcome a U. S. Government defense of sovereign immunity or failure to exhaust administrative remedies with no certainty as to the steps required to exhaust such remedies. Moreover, the remedial authority of the Commission and the courts has also been in doubt. The provisions adopted by the committee will enable the Commission to grant full relief to aggrieved employees, or applicants, including back pay and immediate advancement as appropriate. Aggrieved employees or applicants will also have the full rights available in the courts as are granted to individuals in the private sector under title VII As did the House Report, the Senate Report unequivocally asserted that the provisions governing private sector suits brought by individual litigants, and not the provisions for substantial evidence review of EEOC cease and desist orders, would govern the federal employee’s “civil action” in the District Court: The provisions of section 706(q) through (w) concerning private civil actions by aggrieved persons are made applicable to aggrieved Federal employees or applicants. They could file a civil action within 30 days of notice of final action on a complaint made pursuant to section 717(b), or after 180 days from the filing of an initial charge, or an appeal with the Commission. The authority given to the Commission or the limitations placed upon the Commission under sections 706(q) through (w) would apply to the Civil Service Commission or the agencies, as appropriate, in connection with a civil action brought under section 717(c). So, for example, if the Civil Service Commission or agency does not issue an order within 180 days after a complaint or appeal is filed, the aggrieved person may also institute a civil action. If such action is instituted within one year of the filing of the complaint or appeal, the Civil Service Commission or agency may request that the action be stayed or dismissed upon a showing that it has been acting with due diligence, that it anticipates issuance of an order within a reasonable time on the complaint or appeal, that the case or proceeding is exceptional and that extension of exclusive jurisdiction of the Civil Service Commission or agency is warranted. Like the Hawkins Bill in the House, the Committee Bill encountered stiff opposition on the floor of the Senate to its grant of cease and desist powers to the EEOC. Although a proposed amendment by Senator Dominick to delete those provisions in favor of EEOC authority to institute civil actions against private sector employers which the EEOC believed were violating the statute was twice defeated by a two-vote margin, a threatened filibuster eventually resulted in a compromise effecting Senator Dominick’s desired change. During the course of the Senate debate on the cease and desist issue, Senator Dominick, who was one of the Committee on Labor and Public Welfare members who formulated the compromise which provided for continued CSC supervision of Title VII aspects of federal employment, with the concomitant right of an aggrieved employee to file a civil action in certain enumerated circumstances, made several references to the sections of the Committee Bill pertaining to federal employment discrimination. These references reflected his understanding that the federal employee “civil action” would be a trial de novo, since he continually contrasted the District Court proceedings which could be instituted by federal and state and local government employees with the “substantial evidence” Court of Appeals re- view of final EEOC orders; to establish equality of treatment he wanted all private sector actions to similarly entail plenary proceedings in the District Courts: [In the committee process] we were able to work out an agreement whereby a Federal employee who feels he is discriminated against can go through his agency, and if he is still dissatis-' fied, he is empowered to bring suit in Federal court or through the existing Civil Service Board of Appeals and Reviews to Federal court. So on two of the major groups of employees covered by this legislation; namely, State and local employees on the one hand, and Federal employees on the other, the committee itself agreed to grievance remedy procedures through the Federal district courts; yet with the private employee they say, “No, you cannot have that. We will have an agency that can do it all by itself.” That is discrimination in and of itself, right within the bill; and it strikes me that one of the first things we have to do is at least to put employees holding their jobs, be they government or private employees, on the same plane so that they have the same rights, so that they have the same opportunities, and so that they have the same equality within their jobs, to make sure they are not being discriminated against and have the enforcement, investigatory procedure . carried out the same way. [WJe have already provided in the existing bill for State and local employees and Federal employees to seek redress of their grievances to Federal District Courts. We are not doing so for private employees or private employers. It seems to me that is discrimination in and of itselfl This [Dominick] amendment does not change a committee-adopted amendment authored by Senator Cranston and me creating machinery suggested by Clarence Mitchell, director, Washington Bureau, NAACP. The machinery provides a remedy procedure for the approximately 2.6 million civil service and postal employees whereby an aggrieved employee has the option, after exhausting his agency remedies, of either instituting a civil suit in Federal district court or continuing through the Civil Service Board of Appeals and Reviews to district court, if necessary. Curiously enough, the majority members of the committee seem pleased with ultimate court enforcement procedures for 2.6 million Federal employees and 10.1 State and local government employees, but continue to urge cease-and-desist.procedures for private employees, After the Dominick amendment was agreed to, thereby deleting the EEOC’s cease and desist powers and all of the Committee Bill’s references to review proceedings, and instead according the EEOC the power to file a civil action in District Court, the Senate turned its attention to other proposed amendments to S. 2515. One such amendment, introduced by Senator Cranston, brought Library of Congress employees within the ambit of the federal employment discrimination provisions of Section 717. In the course of introducing and discussing that proposed amendment, Senators Cranston and Williams made several statements concerning Section 717 generally. Initially, Senator Cranston adumbrated the rationale and purposes behind the new section and expanded Title VII coverage: [S]ection 11 of the bill inserts of [sic] new section 717 in Title VII of the Civil Rights Act of 1964 to provide, for the first time, a clear statutory mandate with respect to equal employment opportunity in the Federal Government. * * * This bipartisan provision has three basic purposes: First. Subsection (a) of the new section 717 provides a statutory mandate that all personnel actions affecting employees or applicants for employment in the Federal Government, “Shall be made free from any discrimination based on race, color, religion, sex or national origin.” Second. Subsection (b) in the new section 717 empowers the Civil Service Commission to enforce the mandate in' subsection (a) and to be responsible for review of evaluation of Federal agency equal employment opportunity plans and programs. The subsection also requires that certain provisions be included in each agency’s plans. Third. Subsection (c) of the new section 717 creates a remedy in district court — comparable to private employment actions — for any employee who has exhausted the equal employment opportunity complaint procedure within his Federal agency. Senator Williams then addressed the poor record of the federal government in its attempts to make equal employment opportunity a reality, and concluded that significant changes in the CSC complaint process were therefore necessary. After describing the obligations of the CSC under the proposed Section 717, Senator Williams made the statement relied on by Judge Gesell as support for the proposition that Congress intended the “civil action” of Section 717 to be a mere review of the agency record: Finally, written expressly into the law is a provision enabling an aggrieved Federal employee to file an action in U.S. District Court for a review of the administrative proceeding record after a final order by his agency or by the Civil Service Commission, if he is dissatisfied with that decision. Previously, there have been unrealistically high barriers which prevented or discouraged a Federal employe[e] from taking a case to court. This will no longer be the case. There is no reason why a Federal employee should not have the same private right of action enjoyed by individuals in the private sector; and I believe that the committee acted wisely in this regard. Senator Williams also received unanimous consent to insert a “more detailed analysis” of Section 717 into the Congressional Record. After relating the historical background of the problem and the failings of the CSC’s complaint procedures, the analysis noted the “private right of action”. added by Section 717: An important adjunct to the strengthened Civil Service Commission responsibilities is the statutory provision of a private right of action of review of the agency proceedings in the courts by Federal employees who are not satisfied with the Agency or Commission decision. The testimony of the Civil Service Commission notwithstanding, the Cornmittee found that an aggrieved Federal employee does not have access to the courts. In many cases, the employee must overcome a U.S. Government defense of sovereign immunity or failure to exhaust administrative remedies with no certainty as to the steps required to exhaust such remedies. Moreover, the remedial authority of the Commission and the courts has also been in doubt. The provisions adopted by the Committee will enable the Commission to grant full relief to aggrieved employees, or applicants, including back pay and immediate advancement as appropriate. Aggrieved employees or applicants will also have the full rights of review available in the courts. Following brief debate on some, other issues relating to EEOC activities, Senator Cranston again took the floor to discuss Section 717: My Federal Government EEO amendment included in the committee bill would: * s(! Sfc * * * Fifth. For the first time, permit Federal employees to sue the Federal Government in discrimination cases— under the theory of Federal sovereign immunity, courts have not generally allowed such suits — and to bring suit either prior to or after CSC review of the agency EEO decision in the case. As with other cases brought under Title VII of the Civil Rights Act of 1964, Federal district court review would be based on the agency and/or CSC record and would not be a trial de novo. Mr. President, the Federal Government must be a model, of equal employment opportunity. However, several months after enactment of the 1972 amendments, Senator Cranston asserted that the “not” had been misplaced in the printed version of his remarks, and that he had actually stated on the Senate Floor that “Federal district court review would not be based on the agency and/or CSC record and would be a trial de novo.” Immediately prior to the Senate’s passage of its version of the Act, Senator Williams intromitted another section-by-section analysis into the Congressional Record. He observed: Sections 717(c) and (d) — The provisions of sections 706(f) through (k) as applicable, concerning private civil actions by aggrieved persons, are made applicable to aggrieved Federal employees or applicants. * * * The authority given to the Commission or the limitations placed upon the Commission under sections 706(f) through (k) would apply to the Civil Service Commission or the agencies, as appropriate, in connection with a civil action brought under section 707 [sic] (c). When the House and Senate versions of H.R. 1746 were sent to conference, the conferees agreed to adopt the Senate version with respect to bringing federal' employees under Title VII’s umbrella: The Senate amendment, provided that all personnel actions involving Federal employees be free from discrimination. This policy was to be enforced by the United States Civil Service Commission. Each agency of the Federal Government would be responsible for establishing an internal grievance procedure and progams to train personnel so as to enable them to advance under the supervision of the Civil Service Commission. If final action had been taken by an agency or the Civil Service Commission, an aggrieved party could bring a civil action under the provisions of section 706. * * * In providing the statutory basis for such appeal or court access, it is not the intent of the Committee to subordinate any discretionary authority or final judgment now reposed in agency heads by, or under, statute for national security reasons in the interests of the United States. In submitting the Conference Report to the Senate, Senator Williams again introduced a section-by-section analysis for printing in the Congressional Record. The analysis was prefaced by the statement that [i]n any area where the new law does not address itself, or in any areas where a specific contrary intention is not indicated, it was assumed that the present ease law as developed by the courts would continue to govern the applicability and construction of Title VII. As already noted, private sector employees had the right to a trial de novo under pre-1972 judicial interpretation of Section 706 of Title VII, and the inclusion of language in amended Section 706 which refers to “hearings” and “trial” merely reinforces that interpretation. For the final time, Senator Williams’ analysis stressed the equality of treatment which should be accorded private sector and federal employee civil actions: Section 717(c) and (d) — The provisions of sections 706(f) through (k), concerning private civil actions by aggrieved persons, are made applicable to aggrieved Federal employees or applicants for employment. * * * 2. Although many courts have followed the District Court opinion in this case in holding that the 1972 amendments do not accord aggrieved federal employees the right to a trial de novo, they have generally done so on the basis of that court’s “comprehensive” analysis of the amendments and their legislative history. Yet the District Court’s scant two-page analysis dealt only with a few parts of the legislative history, and relied almost exclusively on two statements of Senator Williams. In searching the legislative history, the District Court isolated two dominant themes which it believed embodied the congressional intent in 1972. First, the District Court asserted that Congress was cognizant of the ineffectiveness of the then current CSC and agency complaint processes, but was satisfied that they could be remedied by strengthening the CSC’s enforcement machinery in various ways. The District Court, without comparing the criticized procedures and the ones now in effect; simply averred that [t]he Commission has lived up to these obligations by putting into effect comprehensive new regulations to meet the concerns of Congress. Clear-cut complaint procedures protect individuals as well as groups and broad classes of complainants, and new obligations are imposed on the agencies. 5 C.F.R. Part 713 (1973). Second, the District Court perceived that Congress was disaffected because of the lack of effective judicial control over the agency complaint processes; the doctrines of sovereign immunity and failure to exhaust administrative remedies had barricaded agency action from “meaningful court review.” Viewing Section 717 of Title VII as the congressional response to this problem, the District Court concluded: Congress clearly left primary responsibility for enforcement of these rights within the Civil Service Commission. A fair reading of the statute shows that the courts and the Commission are to work together and complement one another’s weaknesses and strengths. Neither can ignore the role the other plays. Viewing the Act and its history broadly, Congress intended to guarantee access to the courts — “a civil action” — to eliminate previous barriers but not to start the process anew. Our impression of the legislative history convinces us that the District Court’s opinion of the amended Civil Service Commission procedures is unduly optimistic, and that its conception of the purpose of Section 717 is unduly narrow. More generally, we believe the District Court, in its “fair reading” of the statute and “broad” view of the legislative history, actually manifested an unfortunately constricted attitude toward the congressional intent in passage of the sweeping 1972 reform legislation. We take as our starting point the basic purpose of Section 717: the rooting out of every vestige of employment discrimination within the federal government. Both the House and Senate Reports and a chorus of congressmen decried the federal government’s poor record in achieving real equality of employment opportunity. This was the critical defect which necessitated congressional action, and remedying this injustice was the “paramount” purpose which motivated inclusion of Section 717 in Title VII. Equality is the touchstone of a democratic government, and Congress in 1972 finally perceived the injustice and hypocrisy of a system that demanded more from private employers than it was willing to give itself, that sought to establish a regime of equality for the private sector of the economy while leaving its own house in disarray, rife with discrimination. Nor was the actuality of equal opportunity alone sufficient. The federal government plays a vital role in all aspects of our society; it is a model for all and exercises a significant educative force by its example. As the Senate Report opined, because the “policies, actions, and programs [of the federal government] strongly influence the activities of all other enterprises, organizations and groups, [i]n no area is government action more important than in the area of civil rights.” Thus, assuring the appearance of fair and equal treatment of federal employees and applicants for employment, as much as achieving the actuality of fair and equal treatment, was a primary congressional objective. It is from this perspective that congressional action in 1972, and congressional intent in enacting Section 717 of Title VII, must be judged. Turning our attention to the more specific congressional objectives addressed by Section 717, we first note that we concur in the District Court’s observation that Congress intended to strengthen the CSC’s remedial authority and the federal government’s internal procedures for assuring equal employment opportunity through the 1972 amendments. Such an intent is evident in the language of the statute itself, and permeates much of the commentary in the Senate Report. However, we disagree with the District Court that this mandate to the CSC indicates a congressional belief that formal judicial fact-finding procedures are therefore unnecessary. There is also serious question whether the District Court was on sound ground in concluding that the CSC’s revised procedures effectively rectify the defects identified by Congress in 1972. As to this point, as indicated in their concurring opinions, Judges Leventhal and Davis are of the view that it is not necessary to address the recent course of the Civil Service Commission and consequently do not join in its discussion in this opinion. However, it seems to the writer worthy of note that both the House and Senate Reports found critical infirmities in the CSC’s complaint procedures, even as revised in 1969. The informal procedures were found to have impeded rather than enhanced the quest for equal employment opportunity. The fact that the hearing examiner was to be appointed from outside the agency was not considered curative of the defect that the examiner was without actual authority to conduct an independent investigation, since his conclusions and findings were “in the nature of recommendations to the agency head who makes the final agency determination as to whether discrimination exists.” Moreover, the CSC’s Board of Appeals and Review was found to rarely reverse an agency determination, and the whole federal complaint process was considered to create a “built-in conflict-of-interest.” It is evident from a comparison of 5 C.F.R. Part 713 as it existed before and after the 1972 amendments that no substantial reform was effectuated to meet these congressional concerns. To be sure, the regulations were expanded to include, inter alia, provisions governing third-party allegations, the aggrieved employee’s right to file a civil action in District Court, allegations of reprisal or coercion, and the necessity for various remedial actions where discrimination is found. However, no substantial changes were effectuated to meet many of the specific objections expressed in the House and Senate Reports. For example, although those Reports suggested that informal procedures may have impeded anti-discrimination efforts, the mandatory precomplaint processing procedures have not been altered. Despite congressional criticism that an agency’s responsibility for investigating and judging complaints lodged against it produces, at a minimum, an appearance of unfairness, and that the system creates a built-in conflict of interest, the head of an agency may still reject a complaint under certain circumstances or cancel a complaint for “failure of the complainant to prosecute,” and the provisions under which the defendant agency preliminarily investigates the charges are not modified in any relevant way. Furthermore, the hearing procedures are only cosmetically altered, with the “hearing examiner” now denominated a “complaints examiner” but with the practical limitations on his independence and the fact that ultimate decision-making authority rests with the agency head persisting under the “revised” procedures. The examiner need have no legal training, and no rules of evidence govern the hearing; hearsay is explicitly rendered admissible and examiners are informed that the concept of “burden [of proof]” has no applicability to the hearing process. Moreover, the issues are delineated by the complaints examiner, and he rather than the complainant molds the agency record. And particularly important in evaluating the credibility of the agency proceedings as adequate factfinding mechanisms, the examiner has no subpoena power and thus neither the complainant nor the examiner has the right to conduct dis-. covery or secure compulsory process. Indeed, the CSC has frankly recognized that [t]he hearing is an adjunct to the investigation. It is not an adversary proceeding but is an administrative proceeding designed to provide additional evidence. Office of Federal Equal Employment Opportunity of the Civil Service Commission, Discrimination Complaints Examiners Handbook 5 (April 1973) (emphasis in original). Furthermore, the head of the employing agency still makes the final agency decision on the complaint, and although the employee may appeal that decision to the CSC’s Board of Appeals and Review, there is no right to a hearing of any type before the BAR. Thus, contrary to Judge Gesell’s pronouncement that the CSC has lived up to its obligations under Section 717 and has implemented procedures that meet congressional concerns, the CSC’s nonadversarial fact-finding procedures and inherent structural defects persist essentially unchanged, and do not guarantee federal employees a full and fair hearing on their claims of employment discrimination; these persisting inadequacies at the least present an aura of unfairness and an appearance of conflict of interest which will continue to discourage federal employees from seeking to vindicate their rights before the CSC with any prospect of success. Turning our attention to the more specific congressional objectives addressed by subsections 717(c) and (d), we cannot agree with Judge Gesell that the mere conferral upon federal employees of the right of “access” to the courts was intended. To be sure, Congress discounted CSC testimony that federal employees already had the right to prosecute discrimination claims in the District Courts; it found that the Government defenses of sovereign immunity and failure to exhaust administrative remedies often effectively precluded meaningful judicial consideration of those claims. However, by ensuring federal employees that they would have the unequivocal right to a day in court, Congress did not thereby dictate that that day in court would only consist of a review of the administrative record in those cases in which such a record has been compiled. Indeed, by enacting subsection 717(c) Congress had assured federal employees of their day in court; but Congress also enacted subsection 717(d), specifying that the provisions of Title VII governing private sector employee actions would also govern federal employee civil actions. We believe that this broader congressional objective — the equalization of the rights and remedies in the courts of private sector and federal employees — is manifest in the legislative history of the 1972 amendments. Both the Hawkins Bill in the House and the Committee Bill in the Senate sought to accord the EEOC cease and desist authority, and to limit judicial action on final EEOC orders in the private sector to substantial evidence review in the appropriate Courts of Appeals. However, both bills preserved the preexisting private sector employee “civil action” in the District Courts in certain enumerated situations; these actions, like those under the unamended Act, would of necessity be trials ’de novo. Despite the fact that each bill, with respect to private sector employees, contained provisions requiring substantial evidence review in the Courts of Appeals in some situations but trials de novo in the District Courts in other situations, the section of the bills pertaining to federal employee civil actions always referenced the private sector provisions requiring trial de novo as the provisions which would govern a federal employee’s civil action. The Senate Report, in its analysis of the provisions which, without relevant modification, became Section 717, made this equality of federal employee “civil actions” and the de novo private sector “civil actions” unmistakable: Aggrieved [Federal] employees or applicants will [in addition to rights before the CSC] also have the full rights available in the courts as are granted to individuals in the private sector under title VII. sk * * * * * The provisions of sections 706(q) through (w) concerning private civil actions by aggrieved employees are made applicable to aggrieved Federal employees or applicants. Never was there any hint that provisions pertaining to substantial evidence review of final EEOC orders should apply to federal employees; nor was there any suggestion, as contended by appellees, that the various provisions of those bills dealing with the standard of review or judicial remand of the case to the agency for further fact-finding were intended to govern federal employee civil actions (although in the District Courts rather than in the Courts of Appeals). Indeed, the very fact that Congress, when considering review provisions for EEOC cease and desist orders for over 40 million private sector employees that were to be covered, placed jurisdiction in the Courts of Appeals, indicates the absurdity of suggesting that it intended to create analogous “review” provisions for the mere 2.6 million covered federal employees in the District Courts. In addition to the evidence of congressional intent derived from the structure of the progenitors of Section 717, considerable support for the federal employee’s right to have a de novo determination of his discrimination claims in the District Courts is manifest in the plethora of statements delivered by Senator Dominick (who had co-authored the Committee compromise embodied in Section 717) during the Senate debate on the Committee Bill. As indicated by the passages already quoted in the chronological description of the legislative his-' tory, Senator Dominick spoke forcefully against the bill’s provisions which accorded the EEOC cease and desist powers and which limited judicial oversight of its final orders to substantial evidence review in the Courts of Appeals. With rhetorical flourishes, Senator Dominick castigated the Senate for the discrimination which this allegedly wrought, since it denied most private sector e