dissenting:
I
The majority opinion refuses plaintiff all relief by weaving together four main strands of thought: (a) the lack of substantial evidence supporting the administrative findings that the failures to promote plaintiff in 1951 and 1956 were discriminatory, or to show that the denial of in-service training was discriminatory; (b) the failure of the administrative authorities to find any legal wrong committed against plaintiff, coupled with their discretionary election to limit relief to the restricted type they awarded; (c) in any event, the failure of plaintiff to show specifically enough that he would have been promoted, so as to disclose legal wrong warranting a remand; and (d) the impossibility of molding back-pay relief for the discriminatory failure to train. I do not agree with any of these grounds.1
Substantial evidence:2 Both the Veterans Administration Employment Policy Specialist and that agency’s Discrimination Complaints Officer found that Mr. Small had been discriminated against, in regard to promotion, in 1951 and 1956. They also found a discriminatory failure to give on-the-job *25training. In its letter to plaintiff, the Civil Service Commission’s Board of Appeals and Beview specifically stated: “The Veterans Administration * * * found evidence to substantiate your charge that race was a factor in your failure to obtain on-the-job training to improve your skills, and in your non-selection for promotion.”
Supporting this administrative determination 'as to non-promotion and failure to train there is substantial material in the record, both in the general circumstances of plaintiff’s long employment by VA and in the particular events at the time of the two failures to promote. 'In the first category there is evidence to this effect: — for over 15 years of federal employment prior to his complaint of discrimination (April Iff68) from which this suit emerged, Mr. Small worked at very low-level positions; he was promoted only once from Laborer CPC-2 to Laborer WA-3 in 1957, although he often applied for promotion; he was never permitted, prior to his complaint of discrimination, to participate in an on-the-job training program, despite his several times seeking such admission; after the lodging of the complaint, he was quickly promoted to Laborer-Equipment Operator WA-4, then given on-the-job training for the first time,3 and immediately credited with 480 hours of prior experience operating a tractor; in March 1910 (after the Civil Service Commission’s decision) he was upgraded to Coal -Unloader Operator WB-6; previously, even the VA had determined that he was qualified (in February 1963) to be a Plasterer WA-5 and, in August 1967, to be a Truck Driver WA-6 (though he was not given those positions); there is also evidence that he had' been operating a tractor as far back as 1955 but that his job description did not (until after the complaint) reflect this important facet of his work and qualifications. See note 7, infra.
The administrative fact-finders were also entitled to look at 'Mr. Small’s individual employment history in the light of the paramount fact that, until the past decade or so, black employees of the Federal Government were usually retained in low-level jobs, were not promoted or hired above those *26bottom grades, and were not often considered for upgrading. Acknowledgment of this cardinal (though, general) proposition was the major foundation for the successive series of executive orders mentioned in Judge Nichols’ opinion, for the development and evolution of the federal employees’ anti-discrimination program, and for the recent inclusion in the Equal Employment Opportunity Act of 1972 of detailed statutory provisions respecting federal personnel. As the Supreme Court said, 50 years ago, in taking judicial notice of a comparable overriding fact: “All others can see and understand this. How can we properly shut our minds to it Bailey v. Drexel Furniture Co., 259 U.S. 20, 37 (1922) (the “Child Labor Tax Case”).
From all of this and other aspects of the case, the YA deciders could conclude, as they obviously did, that they should not credit the assertion of management that plaintiff was too handicapped by illiteracy, too poorly educated for advancement, too unmotivated, or too unqualified. They could also conclude from the general and long-continued denial of on-the-job training that, in the particular region of plaintiff’s employment, there was a continuing bias against the training and consideration of Negro workers for advancement. Moreover, one would not have to be overly-sophisticated to infer that plaintiff’s rather quick rise after he complained in the spring of 1968 was not due to some long dormant and newly emerging qualities, aptitudes, or characteristics, but that he had basically the same potentiality all along.
As for the particular circumstances of the two promotions, the administrative fact-finders could and did take into consideration the fact that on each occasion a white was selected and in 1956 he essentially came from outside the station (at that time plaintiff had five years of experience at the location) . In 1961 another Caucasian from outside was chosen for a job (Gardener WA-6) for which plaintiff had applied.4
I do not say that on the whole record the deciders were required to find that Mr. Small was discriminatorily denied *27promotion in 1951 and 1956, or discriminatorily deprived of on-the-job training, but I am persuaded that there was substantial support in the record as a whole — melding plaintiff’s whole history with the specific situation in 1951 and 1956 — • for the favorable determination that was made, and, accordingly, that it is error for us to set the administrative findings aside.
The nature of the administrative decision: The majority also seem to read the VA findings — contrary to the way the defendant, the VA itself, and the Civil Service Commission understood the agency decision — as deciding that (1) in any event no legal wrong was committed against plaintiff, and (2) that, as a matter of discretion, the relief administratively awarded was sufficient to remedy any previous bad practices by the VA. I consider both of these premises to be quite erroneous, and contrary to what the VA actually determined.
For the first of these conclusions, Judge Nichols’ opinion relies primarily on Mr. Wells’ finding that “there is no evidence of record to substantiate Mr. Small’s contention that he was subjected to personal racial discrimination by the Center Director, the Assistant Director, the former Personnel Officer or by the former supervisory personnel whom he had accused of being discriminatory toward him” (emphasis added). This determination seems to me to refer only to plaintiff’s charge (there were many allegations of discrimination) that he was personally discriminated against on his existing job with respect to leave, medical treatment, job assignments, etc. The finding does not appear to have been meant to have any bearing on discrimination in promotion or on-the-job training which Mr. Wells expressly found to exist. And Mr. Holland, the VA Discrimination Complaints Officer, explicitly determined: “On the basis of a review of the total record of the matters raised in Mr. Small’s complaint, I find that there is evidence to substantiate his charge that race was a factor in his failure to obtain on-the-job training to improve his skills and non-selection for promotion.” These were plainly findings of a legal wrong and of a violation of the Executive Order. As already indicated, the Civil Service Commission similarly understood the VA *28decision. Both agencies considered that there had been a violation of the President’s directive.
Nor is there better backing for the view that the VA and the Civil Service Commission refused back-pay as a matter of discretion. It is clear to me that, until our Chambers and Allison decisions (Chambers v. United States, 196 Ct. Cl. 186, 451 F. 2d 1045 (1971); Allison v. United States, 196 Ct. Cl. 263, 451 F. 2d 1035 (1971)), the Commission and the executive branch took the position that, in these circumstances, back pay or other monetary relief could not legally be awarded by the Commission or the employing agency. The limitation of relief to Mr. Small, excluding all monetary compensation, was not an exercise of discretion, but submission to what was then deemed the mandate of the law.
Specific mjury: Unless I misunderstand the majority view, another prime ground is that, whatever the administrators may have decided, the present record is insufficient to show specifically that plaintiff would have been promoted at a particular time if it were not for the discrimination, and that we should not, or cannot, remand to the Civil Service Commission for further evidence and findings on that subject. This, too, seems wrong to me. Certainly, the findings of discriminatory failure to promote in 1951 and 1956 (which we should accept) are, at the very least, indication of a specific deprivation. As for training, the long-continued failure to give training to black workers including Mr. Small {see note 3, supra), their quick integration into the program after they made complaint, and the insistence of management on proper training,5 all combine to warrant further inquiry into the effects of that discrimination, i.e. whether plaintiff was pecuniarily injured by the deprivation and is entitled to pecuniary relief for the failure to train.
With much more general findings of discrimination, the majority of the court in Allison, supra, called for further proceedings before the Civil Service Commission. In this respect the present case is clearly a fortiori. On a remand *29under the Allison precedent,5 the Commission could well find, for instance, that the non-promotion in the 1950’s, together with the failure to train, so affected Mr. Small’s employment status in the 1960’s that he was still suffering from those failures to upgrade when he filed his complaint of discrimination. A fair measure of damages can also be constructed.7 Those are the types of tasks which other tribunals, including the district courts, have been performing for some time, with respect to non-federal workers, under the civil rights and equal employment legislation, and the Commission can now do the same for this federal employee. There is no reason why plaintiff should not have the same opportunity as we gave to the plaintiffs a year ago in Allison.8
Back fay for discriminatory failure to tram: In addition to incorrectly voiding the administrative finding of discrimination in failing to supply training and wrongly reading the administrative decision as a discretionary refusal to give a pecuniary remedy, the court seems to consider it impossible to adjudicate the monetary consequences of this denial in the form of a back-pay award. Without any factual basis or effort to see what can be done, the opinion appears to consider the inquiry too speculative to be undertaken. This slights the powers and the resourcefulness of the Civil Service Commis*30sion and cuts off at the threshold, before the attempt is even made, any consideration whether some sort of monetary remedy can properly be fashioned. I am not so omniscient that I can say categorically, at this initial stage, that it would necessarily be useless to have the matter threshed out at the Commission level. The thing to do is to allow the effort to be made before crying failure. The remedial aspects of equal employment opportunity litigation are still in their infancy, and I see no call to declare a priori that they cannot possibly grow and develop in this way or that. The Commission has full powers under the new Equal Employment Opportunity Act of 1972 and we do not yet know the forms in which that plenary authority can, will, and should be used.
II
Judge Skelton’s separate opinion would dismiss for lack of jurisdiction, citing the dissents in Chambers and Allison. On the point of jurisdiction, I continue to adhere to the opinions of the court in those two oases.
III
The disposition of the case I would make is, first, to uphold our jurisdiction on the basis of the Chambers and Allison decisions; second, to sustain the administrative findings that plaintiff was discriminatorily treated; and, third, following Allison, to deny without prejudice both plaintiff’s and defendant’s motions for summary judgment and remand to the Civil Service 'Commission to allow plaintiff to apply for further relief by way of .back-pay or comparable monetary recompense, with the 'Commission to take into account the factors mentioned at the close of the Allison opinion and any other appropriate elements. On remand, the Commission can exercise its preexisting powers, as well as its newly-granted authority under the Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, 86 Stat. 103, section 11 (amending Title VII of the Civil Eights Act of 1964), to employ “appropriate remedies, including reinstatement or hiring of employees with or without back pay * * 86 Stat. 111. The Commission can thus grant the full relief to which the plaintiff is entitled, including back pay, if appropriate, for the *31discriminatory failures to (promote, and whatever monetary compensation is due, if any, for the discriminatory failure to train. We should remand to (permit that tribunal to make those determinations.9
Kashiwa, Judge, and Kunzig, Judge, join in the foregoing dissenting opinion.I do concur that the failure of plaintiff, who had the help of counsel at the time, to ask the Board of Appeals and Review to order a hearing precludes him from raising that point in this court. Pine v. United States, 178 Ct. Cl. 146, 371 F. 2d 466 (1967).
The court’s opinion does not discuss our power to set aside, as unsupported by substantial evidence, administrative findings in personnel matters which are favorable to the claimant. Cf. Bridgman v. United States, 185 Ct. Cl. 133, 139-40, 399 F. 2d 186, 190 (1968) ; S & E Contractors, Inc. v. United States, 406 U.S. 1 (1972). I assume, for present purposes, that the court has that authority.
The record contains evidence that only five other blacks were given on-the-job training, and of these five four (along with plaintiff) began their training in 1968 after complaints of discrimination had been filed.
The majority emphasizes the destruction of the promotion files relating to the 1951 and 1956 selections, but this seems to me comparatively unimportant in view of the investigator’s sufficient reconstruction of the events from affidavits and inquiry, and the impact of plaintiff’s general history on the job. It is not uncommon for triers to mate determinations even though the original files are no longer available.
An official “position report” in 1968 on Mr. Small’s WA-4 job, to -which he was promoted shortly after he Hied his discrimination complaint, shows that “experience and training” was a substantial component of the WA-4 position.
6 Pub. L. No. 92-415, 86 Stat. 652 (enacted August 29, 1972), now gives this court “in any case within its jurisdiction" “the power to remand appropriate matters to any administrative or executive body or official with such directions as it may deem proper and just.”
The 1968 “position report” on the WA-4 job (see note 5, supra) shows that tractor-driving was 25% of that position and was the only reason for the upgrading from WA — 3 to WA-4; plaintiff had been driving a tractor since 1955, without getting adequate credit for it in grade or pay. A minimum measure of damages would be at least the difference between a WA — 3 and a WA — 4 from 1955 to 1968,
Plaintiff makes a detailed argument that 42 U.S.C. § 1981 (originally part of § 1 of the Civil Rights Act of 1866) supplies another basis — in addition to Allison and Chambers — for holding the Federal Government monetarily liable, but I do not, because I need not, reach that intricate point. This novel contention seems to me to call for detailed and careful consideration if it is to be passed upon. Cf. Sullivan v. Little Hunting Park, 396 U.S. 229, 237, 239 (1969) ; Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) ; Hurd v. Hodge, 334 U.S. 24 (1948) ; Sanders v. Dobbs Houses, Inc., 431 F. 2d 1097 (C.A. 5, 1970), cert. denied, 401 U.S. 948 (1971) ; Mizell v. North Broward Hosp. Dist., 427 F. 2d 468 (C.A. 5, 1970) ; Chambers v. United States, 196 Ct. Cl. 186, 194-95, 198-01, 451 F. 2d 1045, 1050, 1052-54 (1971) ; Eastport S.S. v. United States, 178 Ct. Cl. 599, 605-06, 372 F. 2d 1002, 1007-08 (1967) ; Ralston Steel Corp. v. United States, 169 Ct. Cl. 119, 126 n. 5, 340 F. 2d 663, 668 n. 5, cert. denied, 381 U.S. 950 (1965).
Plaintiff does not desire further proceedings before the Commission, apparently preferring court proceedings, but Allison makes It clear that, under onr precedents, this court cannot perform the functions which remain, or make the specific determinations which have to be made.