delivered the opinion of the court:
This is a back pay case with jurisdiction asserted under 28 U.S.C. § 1491, which provides as follows:
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, * * *.
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Plaintiffs are 15 Negro wage board employees in the Grounds Maintenance and Landscaping Unit at the National Institutes of Health (NIH). They allege that they have been denied promotions because of racial discrimination and ask the court to award them back pay for promotions at the rate of one grade a year since January, 1965. That is the time plaintiffs says that NIH officials should have acted on their complaints under the applicable regulations.
This suit is brought under Executive Order No. 11246, 30 Fed. Reg. 12319 (1965), (now E.O. 11478, 34 Fed. Reg. 12985 (1969)) and the departmental regulations thereunder; as well as the Back Pay Act of 1966, 5 U.S.C. § 5596, (Supp. V, 1965-69). Since we have decided today in Chambers v. United States, ante, at 186, 451 F. 2d 1045, that the Executive Orders cited provide authority for awarding back pay in racial discrimination cases, we need not consider whether the Back Pay Act also provides such a remedy.
This case had its beginning in November, 1964, when some of the plaintiffs here filed administrative complaints charg
A. The investigation produced statistical evidence to support the allegation that Negro employees in Grounds Maintenance are not promoted above the WB-5 level. The concentration of Negro employees at WB-2, WB-3, WB-4 and WB-5 is disproportionately high and tends to sustain the allegation.
B. The allegations that Negro employees are restricted to lower paying jobs and are denied supervisory status is sustained.
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D. The allegation that white employees are promoted over Negroes of comparable experience and qualification is supported.
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Paragraph III of the report contained the decision:
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B. The disproportionate concentration of Negro employees at grade levels WB-2, WB-3, WB-4 and WB-5 shall be reviewed by management and personnel officials to determine those instances where promotions are in order and may have been improperly withheld.
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F. It is directed that this unit shall have the assistance of appropriate management and personnel officials in the establishment of, and adherence to, an effective merit promotion system; that standards be developed which will reflect the significance of seniority, training and related factors in the promotion process.
G. The proposal by complainants for the mass promotion of Negro employees is denied as inconsistent with Executive Order 11246. Promotions which are merited will be accomplished in accordance with III B above.
Plaintiffs were not satisfied with the action contemplated by this decision and appealed further to the HEW Equal Employment Opportunity Officei*, and were granted a hearing. By decision dated December 10, 1968, the Director, Equal Opportunity Staff, upheld the finding of discrimination and
The Chairman of the Civil Service Commission submitted to the Comptroller General, the question whether the CSC had the authority to order back pay awards and retroactive promotions “when the fact of discrimination is established and evidences that the denial of past advancement was improper”. By decision B-165571, dated July 18, 1969, (unpublished) the Comptroller General advised:
With regard to your specific questions the decision B-158925, July 16,1968, involved former employees who had a statutory right to be reinstated subsequent to their military sendee. We held that back pay under 5 U.S.C. 5596 could be awarded upon compliance with the requirements of the statute because the refusal to reemploy the employees in violation of a statutory right was an “action” which results in the withdrawal of pay the individual would otherwise receive. We do not feel that the rule in that case may be expanded to cover the cases here in question. The employees, while having a right not to be discriminated against, did not have an absolute entitlement to promotion at a specific time. As indicated in the decision of today to the Secretary of Housing and Urban Development, we do not find any authority in law to award back pay to employees for the periods that promotions are improperly delayed as the result of discrimination or for some other unjustified or unwarranted reason. Further, administrative errors which justify a retroactively effective personnel action are clerical or administrative errors which alter the specific intent of the official responsible for the action. 46 Comp. Gen. 595, 597. We find no evidence in the materials submitted with your letter than an administrative error of that type was involved in the cases in question.
The decision of the CSC Board of Appeals and Review, based on the opinion of the Comptroller General, was “that the corrective actions requested by the appellants cannot be taken by the Board”. Following denial of their claims by the BAR, plaintiffs brought suit in this court and moved for summary judgment. Defendant cross moves for that relief. Plaintiff says “an Executive agency (HEW) has expressly
Of course, that is not precisely what the administrative decision said. The HEW decision affirmed the finding, which has been referred to in various parts of the record (though not in the decision itself) as a “pattern of racial discrimination” existing “over a period of several years” in the section in which plaintiffs are employed. The decision of the Director, EEO Staff, recounted the demands of plaintiffs for immediate promotions and generally preferential treatment for Negro employees to compensate for past inequities and observed:
* * *. In our opinion, even this solution would not constitute complete recovery whether in terms of financial loss, employee morale, or the irreversible damage to the whole person.
This reviewer may assume arguendo that several, if not all, of the complainants were denied promotional opportunities on racial grounds. However, to effect mass promotions on basis of seniority alone without regard to merit and work qualification is unprecedented within the context of tbe equal opportunity provisions. Such an approach, however appealing, would appear to run a collision course with the prevailing concept and operation of the Federal Merit Promotion System * * *
This indicates a great deal of sympathy for the plight of these plaintiffs and a willingness to go as far as the law allows in attempting to make up for past injustices. It is not a finding that “plaintiffs were entitled to promotions, that they would have had promotions but for discrimination”. The decision of the BAN in analyzing the back pay request, had this to say:
The request that each Negro employee of the Section who has remained in the same grade for one year or more be promoted one, two or three grades, depending on the length of time he has served in that grade level, to have any merit, presupposes a situation in which each white employee of the Section has been promoted a grade a year, irrespective of performance or qualifications. A study of the employment history of all of the employees in the Section in February of 1968 who iniPage 269tially entered on duty in the Section in grades WB-2 and WJB-3 reveals conclusively that neither white employees, nor Negro employees, have advanced a grade a year. The Board finds no merit in this request.
This case then, is not like Chambers, ante at p. 194 where we were:
* * * confronted with a situation where defendant admits that it discriminated against [the plaintiff] because of race and but for that discrimination she would have been employed at a particular grade and salary on March 17, 1967. * * *
All discretionary decisions had been made administratively and the only question before us was whether, in the circumstances, E.O. 11478 provided a legal basis for awarding back pay. We held that it did. That remedy is available for these plaintiffs only if they can present us with a case like that of Mrs. Chambers.
Defendant does not deny discrimination in gross. Yet all we know by the administrative findings is that some unspecified individuals among the plaintiffs, but possibly not all of them, would have been promoted, but for discrimination, at unspecified times, if qualified, if vacancies at higher levels, unknown to us, had existed, and if appropriated funds had been available. We take judicial notice, for instance, that shortage of funds may halt promotions for which all other signs are favorable, all employees being necessarily “frozen” in their then established grades temporarily. We suppose, also by judicial notice, that no one can be promoted unless someone determines that he is qualified for the 'higher grade. The executive, uninfluenced by racial discrimination, who had to consider whether to promote these plaintiffs, or any of them, might have exercised his discretion against promotion for any of these perfectly proper reasons, or might have found them no bar.
All these considerations call into play in full force the normal rule against the retroactive granting of discretionary promotions by courts. See Chambers v. United States, ante, at 186, 451 F. 2d 1045; Wienberg v. United States, 192 Ct. Cl. 24, 425 F. 2d 1244 (1970); Gearinger v. United States, 188 Ct. Cl. 512, 412 F. 2d 862 (1969). We cannot, therefore,
We noted in Gearinger that 'an administrative tribunal having cognizance might exercise powers of retroactive promotion that courts could not, 188 Ct. Cl. at 518, 412 F. 2d at 866. Plaintiff’s decedent there was a naval officer and the involved tribunal was the Board for Correction of Naval Records. The Comptroller General has already approved an administrative retroactive promotion of a civilian aggrieved by racial discrimination, where the found facts took the decision out of the discretionary area. Comp. Gen. B-165571, 50 Comp. Gen. 581 (1971).
We think that the administrative refusal of the requested remedy herein, i.e., mass promotions, is shown by documents to have been due to a belief that such promotions could not legally have been granted even in a case of the Chambers type, with discretionary factors removed. The GAO, the BAR, and PIEW, all shared this erroneous idea. As a result, there was no consideration of making findings showing, in light of all the factors, when, if when all, each individual plaintiff would have been promoted, but for racial discrimination. Nevertheless, the findings actually made are persuasive that someone having a name and grade would have received a promotion to a certain grade at a time certain, all factors having been considered. In future, in light of our Chambers decision, agencies will not limit themselves to findings of broad en masse discrimination, but will if they can be specific enough to allow of judicial relief, at any rate so long as they deny themselves the power to grant it administratively. Because of the error of law, the findings in this case are not to be construed as holding it impossible to ascertain ex post facto whether and when plaintiffs would have been promoted, discrimination apart. Defendant would have us suspend this case for further administrative findings if we should hold — as we do — that “plaintiffs are entitled to promotion consideration free of any vestige of discrimination.”
We are not impressed with defendant’s argument that some of the plaintiffs here were not parties to the administrative proceedings and therefore had not exhausted their administrative remedies. Since the administrative holding was that
Accordingly, we deny without prejudice plaintiffs’ motion and defendant’s cross motion for summary judgment and suspend proceedings here to allow plaintiffs to apply for administrative findings which shall show, person by person, whether such person would have been promoted, when, and to what grade or grades, in light of such person’s qualifications, the qualifications of competitors, the existence of vacancies, the availability of funds, and all other factors that would have properly influenced the exercise of discretion in the making of an actual promotion at the time a promotion was due. Cf. Drucker v. United States, 195 Ct. Cl. 335, 451 F. 2d 619 (1971).