CHRISTINA FANG-HUI LIAO, PETITIONER V. CHARLES H. DEAN, JR., ET AL.

   No. 89-1131

   In The Supreme Court Of The United States

   October Term, 1989

   On Petition For A Writ Of Certiorari To The United States Court of
Appeals For The Eleventh Circuit

   Brief For The Respondents In Opposition

                            LIST OF PARTIES

   The parties to this case in the court of appeals were:

         Christina Lang-Hui Liao, Plaintiff-Appellee

         Charles H. Dean, Jr., Defendant-Appellant

         John B. Waters, Defendant-Appellant*

            TABLE OF CONTENTS
   Questions Presented
   List of Parties
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. A21-A28) is reported
at 867 F.2d 1366.  /1/ The opinion of the district court (Pet. App.
A1-A14) is reported at 658 F. Supp. 1554.  A later opinion of the
district court (Pet. App. A15-A18) is unreported.  The May 6, 1987,
order entered by the district court, from which respondents appealed,
is not set out in the appendix to the petition, but is reproduced in
the appendix to this brief.

                             JURISDICTION

   The judgment of the court of appeals (Pet. App. A19-A20) was
entered on March 16, 1989.  A petition for rehearing was denied on
September 29, 1989.  On December 22, 1989, Justice Kennedy extended
the time for filing a petition for a writ of certiorari to and
including January 11, 1990, and the petition was filed on that date.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1)
(1982).

                          QUESTIONS PRESENTED

   1. Whether an employer commits a per se violation of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., by dismissing,
pursuant to a valid reduction-in-force, a person who was hired under a
voluntarily adopted affirmative action plan, instead of dismissing a
similarly qualified person who was not covered by the plan.

   2. Whether the court of appeals properly entered judgment for
respondents after finding that petitioner had presented no evidence of
discrimination.

                               STATEMENT

   Petitioner, an Asian-American female, brought this action under 42
U.S.C. 2000e-16 to recover for alleged sex and race discrimination
arising from the termination of her employment with the Tennessee
Valley Authority (TVA) through a statutory reduction-in-force (RIF).

   1. Petitioner was hired by TVA in July 1977, as a research chemist
with the Soil and Fertilizer Research Branch, Division of Agricultural
Development (Agricultural Development), at TVA's National Fertilizer
Development Center in Muscle Shoals, Alabama.  Agricultural
Development had the responsibility for major areas of TVA's fertilizer
research and development program.  Pet. App. A1;  Tr. 94-95;  A.R.
625.  /2/ The mission of petitioner's branch within Agricultural
Development was to test new fertilizer materials and to develop
methods of improving the efficiency of plant nutrients.  Tr. 150.

   Agricultural Development had an Affirmative Action Plan (AAP or
plan).  Pet. App. A22;  A.R. 780-797.  The plan demonstrates an
emphasis and concern with the recruitment of minorities, but the plan
does not refer to RIFs, or to the application of the plan in the case
of a RIF.  Pet. App. A23;  A.R. 780-797.

   In 1980 and 1981, Agricultural Development was faced with the most
recent in a series of severe budget cuts.  Tr. 96-98, 246-248;  A.R.
137, 493-495, 527, 553, 626, 632-633.  In all, the division lost
approximately 40 positions out of 176.  Plaintiff's position was one
of those lost.  /3/

   John Shields, the division director, instructed his branch chiefs
to identify positions that could be eliminated to meet the constraints
of the budget.  He instructed his subordinates to try to preserve
high-priority activities, and, if possible, not to cut an entire area
of research.  A.R. 627-629.  /4/ Dr. Sample twice appealed
unsuccessfully to Mr. Shields to exempt his branch from the cuts.  Tr.
98-103;  A.R. 172, 537, 553, 629-630.  Left with no choice, Dr. Sample
reviewed the research areas currently active within his branch and
determined that only the nitrogen area could afford a cut in the
number of researchers.  He chose the nitrogen area because, of all of
the areas within the branch, only it had more than one project leader;
 to dismiss individuals in another area would have been to eliminate
that entire area, contrary to Shields's instructions.  Tr. 213-216;
A.R. 559-560, 685-687.

   The nitrogen area had three separate project leaders, none of whose
positions were interchangeable for RIF purposes:  Dr. Roland Hauck,
Dr. Bert Bock, and petitioner.  Dr. Hauk was recognized worldwide as
an authority in nitrogen research.  Dr. Bock's TVA and pre-TVA work
involved practical applications of research results to agriculture, an
area of particular importance to top TVA management.  Dr. Sample felt
that to cut petitioner's position would cause the least damage to the
nitrogen research efforts, because, although she was skilled in
laboratory work, she did not have the others' breadth or depth of
knowledge.  Tr. 213-217;  A.R. 162-163, 559-562, 651-652, 667-668,
685-687.  Formal RIF procedures were implemented, and petitioner was
dismissed effective January 8, 1982.  Tr. 256-257, 269-271;  A.R. 597,
602, 604.

   2. Petitioner then invoked her remedies under federal law.  See 42
U.S.C. 2000e-16(b) and (c) (1982);  29 C.F.R. Pt. 1613 (1981).  She
filed an administrative complaint alleging that she was the victim of
discrimination on the basis of her race and sex in connection with the
RIF.  After a thorough investigation and a full evidentiary hearing
before a complaints examiner from the Equal Employment Opportunity
Commission (EEOC), A.R. 72-583, the TVA adopted, as the agency's final
decision, A.R. 594-595, the complaints examiner's recommended decision
finding no unlawful discrimination against petitioner, A.R. 585-592.

   Petitioner appealed to MSPB, see 5 C.F.R. 351.901 (1981);  29
C.F.R. Pt. 1613, Subpt. D (1981), where she was given another hearing.
 A.R. 24-864.  The MSPB Presiding Official noted that the parties had
stipulated that petitioner had established a prima facie case, and
that the TVA had articulated a legitimate, nondiscriminatory reason
for the RIF action.  A.R. 615.  The Presiding Official found that the
TVA had followed proper RIF procedures and that petitioner had failed
to establish that the reasons for the RIF were pretextual.  A.R.
13-23.

   The full MSPB denied further administrative review of that
decision.  A.R. 9-12.  Pursuant to 5 U.S.C. 7702(b), the EEOC reviewed
the MSPB's decision and supporting records.  It found that the TVA had
not discriminated against petitioner on the basis of her race or sex
in connection with the RIF.  A.R. 1-8.

   3. On August 8, 1986, petitioner filed a complaint under 42 U.S.C.
2000e-16(c) in district court, alleging that her dismissal was
intentionally motivated by sex and/or race discrimination.  C.A. R.E.
6-21.  5 U.S.C. 7703(b)(2).  At trial, petitioner offered no evidence
indicating that Dr. Sample's decision to eliminate her position, or
Shield's concurrence in Dr. Sample's decision, was in any way
motivated by race or sex discrimination.  Rather than focusing on the
decisionmakers who were responsible for her RIF -- and proof of whose
illegal intent was critical to her case -- petitioner focused on the
actions of her previous supervisors, Dr. Hauck and Dr. Orvis
Engelstad, neither of whom had played any role in the RIF.  Tr.
132-133, 158;  A.R. 193, 487.

   The district court entered judgment in petitioner's favor.  The
court did not find that petitioner was the victim of intentional
discrimination, nor did the court find, contrary to petitioner's
assertion, Pet. 5-6, that the TVA's reason for dismissing petitioner
was pretextual.  Instead, citing Johnson v. Transp. Agency, 480 U.S.
616 (1987), the court held that the TVA had violated Title VII by not
giving petitioner a layoff preference under the TVA affirmative action
plan.  The court said that "(t)he RIF decision may have had a rational
basis," Pet. App. A7, but that petitioner was entitled to keep her
position nonetheless, because "(o)nce the employer is permitted
voluntarily to adopt an AAP 'to benefit members of the minority groups
for whose protection the statute was enacted', the employer is then
required to adhere to its own program.  Otherwise, the adoption of an
AAP would be meaningless." Id. at A10-A11.  In the court's view, the
fact that the TVA had adopted an affirmative action program meant that
petitioner was "entitled to reverse, reverse discrimination." Id. at
A14.  After ordering reinstatement and backpay, the district court
reserved decision on attorney's fees and denied all other sought-after
relief.  App., infra, 1a-2a;  C.A. R.E. 35-36.  /5/

   4.  The court of appeals reversed and entered judgment for
respondents.  Pet. App. A19-A28.  Although noting that "(t)he plan did
not contain provisions governing procedures to be followed during any
cutbacks in staff size," id. at A23, the court found it unnecessary to
decide whether the AAP applied to the dismissal of a covered employee
under a RIF since the court held that petitioner's claim lacked merit
even if the AAP applied to such dismissals.  Id. at A24-A28.  In so
ruling, the court held that the district court had misread Johnson v.
Transp. Agency, supra.  As the court of appeals explained, Johnson
held that Title VII does not prohibit all forms of affirmative action,
but did not hold that an employer's violation of a voluntary
affirmative action program automatically violates Title VII.  Pet.
App. A24-A26.  /6/ After rejecting the sole ground for the district
court's decision, the court of appeals held that respondents were
entitled to judgment "as a matter of law," because "the evidence would
not support a finding that (respondents) had otherwise violated" Title
VII.  Pet. App. A28.

                               ARGUMENT

   1. Petitioner asks the Court to decide the question whether Section
717(c) of the Civil Rights Act of 1964, 42 U.S.C. 2000e-16(c), grants
a federal employee a cause of action against the government for its
alleged failure to comply with an affirmative action plan.  That claim
does not warrant review by this Court, for several reasons.

   a. To begin with, this case does not properly present that
question, for two reasons.  First, petitioner did not raise that claim
at trial, and neither the district court nor the court of appeals
passed on it.  The courts below addressed the question whether an
employer's violation of an affirmative action plan is a form of
"discrimination" under Title VII.  For the reasons explained below,
the court of appeals correctly ruled that an employer's failure to
follow a voluntary affirmative action plan is not itself a form of
discrimination and that decision does not warrant further review.  The
question presented by petitioner is different;  she claims that
Section 717(c) grants a federal employee the right to enforce the
federal government's compliance with a voluntary affirmative action
plan, regardless of whether the government's failure to do so is a
form of "discrimination." Although there is no merit to that claim, it
is also true that petitioner has not preserved it in this case.

   Second, the gravamen of petitioner's claim is that the TVA violated
its affirmative action plan by denying her a layoff preference during
the RIF.  That claim, however, is not supported by the record.
Neither the terms of the affirmative action plan quoted by the
district court, Pet. App. A2-A6, nor any other term of that plan
indicates that it applies in the case of a RIF.  The plan mentions
only hiring and promotions and is altogether silent on the subject of
layoffs.  The court of appeals therefore correctly noted that "(t)he
plan did not contain provisions governing procedures to be followed
during any cutbacks in staff size." Id. at A23.  Moreover, although
the plan contains a statement of numerical goals for hiring women and
minorities in certain targeted positions, the plan does not state that
the goals are mandatory.  In sum, there is no foundation to
petitioner's claim that the TVA violated its affirmative action plan.

   Relying on excerpts from the district court's decision, petitioner
contends that the district court found that the TVA had violated its
affirmative action plan and that the district court's findings are not
clearly erroneous.  Pet. 12-13.  Petitioner, however, has misread the
district court's decision.  The district court did not find that the
TVA violated any specific provision of its affirmative action plan by
discharging petitioner.  Instead, the district court concluded that
the TVA had violated its plan by not granting petitioner a layoff
preference, because that court believed that every such plan must
contain an implied layoff preference for minorities and women.
"Otherwise," the court wrote, an affirmative action plan would be
"meaningless." Pet. App. A11.

   There is no legal (or logical) basis for such an implied
obligation, and Johnson v. Transp. Agency, supra, the only authority
on which the district court relied, did not create one.  As the court
of appeals correctly recognized, Johnson held only that Title VII does
not prohibit all forms of affirmative action.  Johnson did not hold
that Title VII requires any such program.  In fact, the text of the
Act and this Court's decisions make it clear that Title VII imposes no
such obligation on an employer.  See 42 U.S.C. 2000e-2(j) ("Nothing
contained in (Title VII) shall be interpreted to require any employer
* * * to grant preferential treatment to any individual * * * .");
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981)
("The statute was not intended to 'diminish traditional management
prerogatives.' It does not require the employer to restructure his
employment practices to maximize the number of minorities and women
hired.") (citation omitted).  /7/ The court of appeals thus correctly
held that the district court misread Title VII, and its decision is
consistent with that of every other court of appeals that has
addressed this issue.  See Washington v. Electrical Joint
Apprenticeship & Training Comm., 845 F.2d 710, 713 (7th Cir.), cert.
denied, 109 S.Ct. 371 (1988);  Manoharan v. Columbia Univ. College of
Physicians & Surgeons, 842 F.2d 590, 594 (2d Cir. 1988);  Yatvin v.
Madison Metro. School Dist., 840 F.2d 412, 415-416 (7th Cir. 1988);
Gilchrist v. Bolger, 733 F.2d 1551, 1554 n.1 (11th Cir. 1984);
Ferguson v. Veterans Admin., 723 F.2d 871, 872 (11th Cir.), cert.
denied, 469 U.S. 1072 (1984);  Page v. Bolger, 645 F.2d 227, 233-234
(4th Cir.) (en banc), cert. denied, 454 U.S. 892 (1981);  see Williams
v. City of Sioux Falls, 846 F.2d 509, 5012 (8th Cir. 1988) (violation
of minority business enterprise affirmative action guidelines is not
itself discrimination).  Petitioner has cited no decision to the
contrary.  /8/

   b. There is also no merit to the claim that petitioner presents for
review.  Relying on the reference in Section 717(c) to Exec. Order No.
11,478, 3 C.F.R. 446 (1970), petitioner claims that Title VII grants
federal employees a remedy for an agency's failure to comply with the
affirmative action obligations imposed on the agency by the executive
order.  That argument is twice wrong.

   First, Section 717(c) gives a federal employee the right to file a
civil action "on a complaint of discrimination based on race, color,
religion, sex or national origin, brought pursuant to subsection (a)
of this section (42 U.S.C. 2000e-16(a)), Executive Order 11478 or any
succeeding Executive orders" (emphasis added).  Thus, Section 717(c)
grants federal employees a remedy only in cases of "discrimination,"
and as explained above, the government's failure to follow an
affirmative action program is not itself discrimination.  Manoharan,
842 F.2d at 594 ("Since section 704(j) of Title VII states that
affirmative action in employment practices is not required by Title
VII, * * * an employer's failure to follow its own voluntary
affirmative action program cannot, by itself, constitute an unlawful
employment practice within the language of section 703(a)(1).");
Yatvin, 850 F.2d at 415 ("(T)he breach of a promise to give women
favored treatment is not sex discrimination.  Sex discrimination is
treating a person worse because of her (or his) sex;  it is not
refusing to discriminate in favor of a person on grounds of her
sex.").  The reference in Section 717(c) to Exec. Order No. 11,478 was
designed to ensure that federal employees could obtain judicial relief
for claims of discrimination that had previously been resolved in the
administrative process before Congress made the federal government
subject to Title VII in 1972.  See Koger v. Ball, 497 F.2d 702 (4th
Cir. 1974).  /9/ Section 717(c) does not also give federal employees a
remedy if the government does not follow an affirmative action plan.
/10/

   Second, Exec. Order No. 11,478 does not require agencies to adopt
affirmative action plans that grant federal employees layoff
preferences, and the TVA plan contains no such preference.  In sum,
the reference in Section 717(c) to Exec. Order No. 11,478 does not
grant federal employees (or petitioner) any greater rights than
Section 717(a).  /11/

   2. Petitioner also challenges the court of appeals' decision to
enter judgment in respondents' favor, instead of remanding the case to
the district court for further proceedings.  That fact-bound claim
does not warrant further review.

   This Court held in Pullman-Standard v. Swint, 456 U.S. 273, 292
(1982), that when a district court has rendered an erroneous factual
finding due to its mistaken view of the law, the proper course for an
appellate court is to remand the case to the district court for it to
apply the correct law to the facts in the first instance "unless the
record permits only one resolution of the factual issue." In this
case, the court of appeals complied with Swint by determining that the
"evidence would not support a finding that the (respondents) had
otherwise violated the provisions of Title VII," Pet. App. A28, and
its conclusion is correct.  Under Burdine and McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973), petitioner had the burden at trial to
show that the TVA's reasons for her dismissal were pretextual and that
she was dismissed pursuant to the RIF for discriminatory reasons.
Since Dr. Sample and Mr. Shields were the two persons responsible for
the decision to dismiss petitioner pursuant to the RIF, A.R. 537;  Tr.
75-78, 213-217, petitioner had to prove that they acted out of illegal
bias.  See United States Postal Serv. Bd. of Governors v. Aikens, 460
U.S. 711, 715 (1983);  Swint, 456 U.S. at 290.  Petitioner did not
introduce any evidence suggesting, much less proving, that either one
had an improper motive.  Instead, she focused her proof on matters
that neither one had anything to do with.  Tr. 93, 95, 207-209.  /12/
Under these circumstances, petitioner did not prove an essential
element of her claim, and the court of appeals properly entered
judgment in respondents' favor.  See, e.g., Pollard v. Rea Magnet Wire
Co., 824 F.2d 557, 559-561 (7th Cir.), cert. denied, 484 U.S. 977
(1987);  King v. Trans World Airlines, Inc., 738 F.2d 255, 259 (8th
Cir. 1984);  Sisco v. J.S. Alberici Constr. Co., 655 F.2d 146, 149
(8th Cir. 1981), cert. denied, 455 U.S. 976 (1982).

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   EDWARD S. CHRISTENBURY

      General Counsel Tennessee Valley Authority

   JAMES E. FOX

      Deputy General Counsel

   JUSTIN M. SCHWAMM, SR.

      Assistant General Counsel

   THOMAS F. FINE

      Senior Litigation Attorney

   JOHN P. KERNODLE

      Attorney Tennessee Valley Authority

   MARCH 1990

   /*/ Petitioner fails to list Mr. Waters and incorrectly lists the
Tennessee Valley Authority (TVA) as a party in the court of appeals.
The TVA is a wholly owned federal corporation, and the sole judicial
remedy for claims of race and sex discrimination by its employees is a
suit pursuant to 42 U.S.C. 2000e-16(c).  Brown v. GSA, 425 U.S. 820,
832 (1976).  One of the statutory conditions is that suit must be
brought only against the "head" of the agency, which in TVA's case is
its statutory three-member Board of Directors.  Bates v. TVA, 851 F.2d
1366, 1368 (11th Cir. 1988), cert. denied, 109 S. Ct. 3157 (1989).
Although TVA was originally a defendant in this litigation, all of the
claims against it were dismissed in the district court before trial,
and petitioner did not appeal from that dismissal.

   /1/ As noted below, the court of appeals' opinion is misprinted in
the petition appendix.

   /2/ A.R. refers to the two-volume administrative record, which was
entered as joint exhibits A and B at the trial.  Tr. 6.  It contains
the record of the TVA Equal Employment Opportunity (EEO)
investigation, the transcript of the predecisional evidentiary hearing
(held before an Equal Employment Opportunity Commission (EEOC)
complaints examiner), the record of petitioner's subsequent appeal to
the Merit Systems Protection Board (MSPB), including the transcript of
the MSPB hearing, and the various administrative decisions by TVA,
MSPB, and EEOC rejecting petitioner's claims.

   /3/ The reasons for undertaking RIFs, and the order in which
employees are released or retained in a RIF by the TVA, are mandated
by statute and regulations of the Office of Personnel Management
(OPM), 5 U.S.C. 3501, 3502;  5 C.F.R. Pt. 351 (1981).  See generally
Dodd v. TVA, 770 F.2d 1038 (Fed. Cir. 1985).  The TVA is bound by the
OPM regulations, which the MSPB applies in its adjudications, see,
e.g., Richardson v. TVA, 12 M.S.P.B. 319 (1982);  A.R. 13-14;  C.A.
R.E. 59-60, and the TVA lacks power to vary them.  Both the district
court, Pet. App. A5-A6, and petitioner, Pet. 9, rely on an OPM
document, A.R. 835, that urges federal agencies to consider the
negative effect that RIFs may have on affirmative action efforts.
That report states, however, that "(o)f course, agencies are not
excused from RIF laws and regulations when they make such
considerations." Pet. App. A6 (quoting document).  Here, the TVA, the
EEOC, and the MSPB all found that the TVA had properly applied the RIF
laws and regulations notwithstanding the TVA plan, as OPM has
required.

   /4/ The court of appeals' decision notes this instruction, 867 F.2d
at 1368, but in reproducing the decision in her appendix (at A23),
petitioner omits the word "not" from the court of appeals' decision.
The correct portion of the statement reads:  "Dr. Eugene Sample, Chief
of the Soil and Fertilizer Research Branch, was told that in making
cuts, he was not to eliminate an entire area of research" (emphasis
added).

   /5/ Nearly six months after the appeal was filed, and after
respondents had filed their brief as appellants in the court of
appeals, petitioner filed a motion in the district court for a
"clarification of findings of fact pursuant to Fed. R. App. P. 10(e)."
This motion was mailed to respondents on the day it was filed with the
district court, and no proceedings were undertaken in the court of
appeals, or notice given to respondents, before it was filed.  Two
days later, before respondents had any opportunity to respond, the
district court issued a purported supplemental opinion and order.  As
the court of appeals held, that purported action by the district court
was outside the scope of Rule 10(e) and therefore of no legal effect.
Pet. App. A27.  Moreover, the court of appeals also held that, even if
the district court's action were proper under Rule 10(e), "the crux of
the later opinion was still the failure of the employer to follow the
affirmative action plan." Pet. App. A27.

   /6/ Contrary to petitioner's assertion, Pet. 10, the court of
appeals did not hold that an agency's violation of an affirmative
action plan is irrelevant to the question whether the agency has
discriminated.  The court of appeals simply held that a violation of
an affirmative action plan "alone is not enough to trigger a Title VII
violation." Pet. App. A24 (emphasis added).  In fact, the Eleventh
Circuit in Ferguson v. Veterans Admin., 723 F.2d 871, 873, cert.
denied, 469 U.S. 1072 (1984), left open the possibility that a
violation of a plan could serve as evidence of discrimination
prohibited by Title VII.

   /7/ Moreover, construing the TVA plan to require the layoff
preference invented by the district court would raise serious
questions regarding the lawfulness of the plan under Title VII and the
Due Process Clause.  See, e.g., City of Richmond v. J.A. Croson Co.,
109 S. Ct. 706 (1989);  Wygant v. Jackson Bd. of Educ., 476 U.S. 267
(1986);  Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561
(1984).

   /8/ Other than the district court decision in this case, the only
other reported decision to the contrary is a district court decision
that relied on the district court's decision in this case.  Morman v.
John Hancock Mut. Life Ins. Co., 672 F. Supp. 993 (E.D. Mich. 1987).

   Petitioner relies on the Eleventh Circuit's earlier decision in
Eatmon v. Bristol Steel & Iron Works, Inc., 769 F.2d 1503 (1985), Pet.
14-15, but that case is inapposite.  Eatmon held that a district court
has jurisdiction under Section 706(f)(3) of Title VII, 42 U.S.C.
2000e-5(f)(3), over an action against a private party to enforce a
conciliation agreement, because such an action is one "brought under"
Title VII.  769 F.2d at 1508-1513.  Eatmon further held that a
district court has jurisdiction under 28 U.S.C. 1331 over an action
brought by an intended third-party beneficiary of a conciliation
agreement to enforce its terms.  Id. at 1513-1517.  Eatmon does not
assist petitioner, because the TVA did not enter into a conciliation
agreement in order to settle a lawsuit.  Instead, the TVA voluntarily
adopted an affirmative action plan, which does not require an employee
to relinquish any potential claims that the employee may have against
an employer.  In fact, Eatmon made clear that a person, like
petitioner, who has not signed a release as part of a conciliation
agreement cannot bring an action under Title VII.  Id. at 1514.
Petitioner therefore could not invoke Eatmon to sustain her claim.  In
any event, an alleged intracircuit conflict is for the Eleventh
Circuit, not this Court, to resolve.  Wisniewski v. United States, 353
U.S. 901, 902 (1957).

   /9/ Before 1972, Title VII of the Civil Rights Act did not apply to
the federal government.  In 1969, President Nixon promulgated Exec.
Order No. 11,478, 3 C.F.R. 446 (1970), which stated that "(i)t has
long been the policy of the United States Government to provide equal
employment opportunity in Federal employment on the basis of merit and
fitness and without discrimination because of race, color, religion,
sex, or national origin." Section 2 of the order directed federal
agencies to adopt an "affirmative program of equal employment
opportunity * * *." Section 4 required the former Civil Service
Commission to establish grievance procedures to handle complaints of
discrimination filed by federal employees.  Complainants, however,
were unable to seek further relief in the courts.  See, e.g., Gnotta
v. United States, 415 F.2d 1271, 1278 (8th Cir. 1969) (Blackmun, J.),
cert. denied, 397 U.S. 934 (1970).  In 1972, Congress enacted the
Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, 86 Stat.
103 (codified at 42 U.S.C. 2000e et seq.), to provide a remedy for
employment discrimination in the federal government.  Section 2000e-16
is the centerpiece of that effort.  Subsection (a) prohibits
employment discrimination.  Subsection (b) gives the EEOC authority to
adopt administrative procedures to ensure that personnel decisions are
free from discrimination.  And subsection (c) gives federal employees
a right of action to sue on a complaint of discrimination once those
administrative remedies are exhausted.

   The reference in 42 U.S.C. 2000e-16(c) to Exec. Order No. 11,478
must be viewed in light of the purpose of that Section to make claims
of discrimination actionable in court -- i.e., claims that had been
previously resolved administratively under Section 4 of Exec. Order
No. 11,478.  By specifically incorporating and referring to Executive
Order 11478, Congress provided a judicial remedy for administrative
cases pending when Section 2000e-16(c) was enacted.  See Koger v.
Ball, supra.  No reference to the affirmative action provision of
Exec. Order No. 11,478 appears in either the Act or its legislative
history.

   Petitioner misapprehends the significance of the reference to Exec.
Order No. 11,478.  Congress, of course, was referring to the Order as
it existed in 1972, which created an administrative remedy for
complaints of discrimination.  The 1978 version no longer contains
Section 4 as described above, nor does it contain any language
regarding an employee's right to file a complaint of discrimination.
After the enactment of Section 2000e-16, which created an
administrative and judicial enforcement scheme of its own, the
complaint procedure of Exec. Order No. 11,478 became obsolete, and it
was dropped when the Order was revised in 1978.

   /10/ As the Eleventh Circuit explained in Ferguson, 723 F.2d at
   872:

         Title VII addresses discrimination.  Plaintiff contends that
      her employer's failure to implement its own affirmative action
      plan, designed for the benefit of women and minorities,
      translates into a Title VII cause of action by which she is
      entitled to relief.  We hold, however, that absenta showing of
      discrimination, there is no Title VII cause of action for the
      failure to implement or utilize an affirmative action program.
      Without repeating here the analysis there made, we simply adopt
      as the law of this Circuit the reasoning and conclusion of the
      Fourth Circuit in Page v. Bolger, 645 F.2d (at 233-234):

         (It is argued that) a proven violation of the Postal
      Service's statutorily mandated "affirmative program," designed
      to eradicate discrimination, would be made a violation of Title
      VII itself.  Affirmative action undertakings by government
      employers would come in practical terms to define the standards
      for compliance with Title VII's antidiscrimination provisions.
      We do not think this could accord with Congressional intent.

   /11/ Indeed, allowing an employee to sue his employer for violation
of an affirmative action plan would discourage employers from adopting
such a plan in the first place.  Yatvin, 840 F.2d at 416.  Neither
private nor federal employers are eager to be "hoist(ed) on (their)
own petard(s)," in the words of the district court.  Pet. App. A14.
Petitioner's interpretation of Title VII would therefore discourage
voluntary efforts to achieve equal employment opportunity.

   /12/ Petitioner argues at length about various pretermination
claims of discrimination, and asserts that she was "denied her day in
court on these other claims" when the court of appeals entered
judgment for respondents.  Pet. 7.  Given petitioner's reliance on the
district court's December 16, 1987, supplemental opinion, that claim
is surprising, since the district court in that opinion specifically
stated that it "intended not to grant (petitioner) any relief for any
alleged pretermination discrimination.  The court found
pre-termination smoke but no pre-termination fire." Pet. App. A17.
Moreover, the district court's judgment from which respondents
appealed specifically denied petitioner all relief other than with
respect to her claim that the TVA had violated its affirmative action
plan.  App., infra, 1a-2a.  Petitioner therefore had an opportunity to
prove her claims.

   APPENDIX