(dissenting):
I dissent.
As the majority opinion points out, the main issue in this appeal is what scope of review should be exercised by the district court when it has jurisdiction over the subject matter of an action both as an appeal from a final agency decision under 5 U.S.C. § 704, and independently under 28 U.S.C. § 1343(4). It is clear from the statutes involved that if jurisdiction were predicated upon 5 U. S.C. § 704 alone, the narrow and restrictive review provisions of 5 U.S.C. § 706 would apply; and if the case were initially brought under 28 U.S.C. § 1343(4), and without an intermediary agency adjudication, there would be original jurisdiction in the Federal District Court, which would then hear the case as nisi prius. However, § 1343(4) does not specifically guarantee a plaintiff a de novo trial. A full judicial hearing is merely the result of that section’s grant of original jurisdiction when there has been no prior proceeding. In the case at hand we are faced with an overlap of jurisdictional provisions, but I cannot agree with the majority that this overlap should in effect allow plaintiff a second day in court — a hearing de novo — when she has already had a full quasi-judicial hearing of her case. A plaintiff is certainly not normally allowed one additional trial de novo for each and every jurisdictional basis he can discover for his lawsuit, but this is precisely what the majority is doing here by tinkering with the scope of review.
I think that the court below reached the better resolution in holding that even in the face of a claim of racial discrimination, the review of an agency’s decision is limited to that available under § 706. See Halsey v. Nitze, 390 F.2d 142, 144 (4th Cir.), cert. denied, 392 U.S. 939, 88 S.Ct. 2316, 20 L.Ed.2d 1399 (1968); Hackley v. Johnson, 360 F.Supp. 1247 (D.D.C.1973); Thompson v. United States Dept. of Justice, Bureau of Narcotics and Dangerous Drugs, 372 F.Supp. 762 (N.D.Cal.1974); Handy v. *1162Gayler, 364 F.Supp. 676 (D.Maryland 1973); Carr v. United States, 337 F.Supp. 1172 (N.D.Cal.1972).
The majority’s reliance upon Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974) for theoretical support for their position is, I feel, misfounded. In that case the Court held that an employee’s statutory right to a trial de novo under Title VII of the Civil Rights Act of 1964 was not foreclosed by prior submission of his claim to final arbitration under a non-discrimination clause of a collective-bargaining agreement. That case (and for the same reasons Oubichon v. North American Rockwell Corp., 482 F.2d 569 (9th Cir. 1973)) is distinguishable from the instant case on two very fundamental bases.
First, the Court’s holding in Alexander was that where plaintiff had both a contractual right and a “distinctly separate” statutory right, the pursuance of one right did not foreclose action upon the other. In the case at hand, plaintiff has but a single right for which she has two overlapping statutory jurisdictional means by which to secure a vindication of that right. (See Appellant’s Opening Brief at 4-5.)
Second, in suggesting that on remand there ought to be a trial de novo at which the proceedings of the administrative agency are merely treated as evidence — a resolution the majority lifts whole cloth from Alexander — the majority fails to recognize that the Supreme Court tailored that solution for an entirely different type of situation from the one here presented. Arbitration, which was the matter before the Court in Alexander is not designed to resolve plaintiff’s rights under the statutes, but rather plaintiff’s rights under a contract. In Alexander plaintiff did not have a judicial type hearing or its equivalent concerning the merits of his statutory claim. Arbitration is a significantly different process from a judicial hearing, and one not adequate to safeguard or resolve all issues pertaining to plaintiff’s rights under the Civil Rights Act. A quasi-judicial proceeding coupled with review under § 706 however, is adequate to resolve plaintiff’s rights in.this matter, and is not so disparate from a full judicial hearing in Federal Court to be contrary to the spirit of the Civil Rights Act.
For a second reason, I am concerned by the majority’s holding in the instant case. 28 U.S.C. § 1343 is an exceedingly broad section, extending far beyond the cases of racial discrimination. To set forth, as the majority does, the general rule that a trial de novo is available, despite a prior agency proceeding, anytime the action could also have been brought under the rubric of § 1343, will, I fear, either givé any complainant two shots at a favorable result; or, will result in largely supplanting the provisions of § 706, hampering both judicial and administrative efficiency, and adversely affecting judicial respect for agency decisions. Moreover, I fear that we will be sacrificing these goals for little or no increase in the accuracy or fairness in the settlement of claims under the civil rights acts.
I would affirm.