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 Beview 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 *204overturn 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 of 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 Beview. 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.1
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 *205whether additional relief is warranted.2 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 Dargo v. United States, 116 Ct. Cl. 1193, 1201 (1966); Pine v. United States, 178 Ct. Cl. 146, 371 F. 2d 466 (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 *206minimize 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 BARIT 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 employees or applicants for employment * * * 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.”3 Statutory precedent foreshadows thus treating *207as a racial discrimination an employer’s adverse action based on tbe employee’s (or applicant’s) standing up for bis 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, 397 F. 2d 687 (C.A.D.C. 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, Barela 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 simply 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 *208well be discrimination to refuse to take on a black wbo 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 subjectively 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, 448 F. 2d 655, 657 (5th Cir. 1971).4
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, 159 Ct. Cl. 80, 309 F. 2d 753 (1962) ; Kleinfelter v. United States, 162 Ct. Cl. 88, 318 F. 2d 929 (1963) ; Russell v. United States, 162 Ct. Cl. 544, 320 F. 2d 920 (1963) ; Schiffman v. United States, 162 Ct. Cl. 646, 319 F. 2d 886 (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) ; Lerner v. United States, 168 Ct. Cl. 247 (1964) ; Morris v. United States, 171 Ct. Cl. 220 (1965) ; Motto v. United States, 172 Ct. Cl. 192, 348 F. 2d 523 (1965) ; Friestedt v. United States, 173 Ct. Cl. 447, 352 F. 2d 530 (1965); Paroczay v. United States, 177 Ct. Cl. 754, 369 F. 2d 720 (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, 183 Ct. Cl. 137, 391 F. 2d 941 (1968) ; Biddle v. United States, 186 Ct. Cl. 87 (1968) ; Mross v. United States, 186 Ct. Cl. 165 (1968).
Section 703(a), 42 USC § 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.”