28 Fair Empl.Prac.Cas. 666,
Annie HOUSETON, Plaintiff-Appellee,
v.
Robert P. NIMMO*, in his official capacity as
Administrator of the Veterans Administration; H. H.
Villalovos *, in his official capacity as Regional
Administrator of the Veterans Administration; and the United
States of America, Defendants-Appellants.
No. 80-5033.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Sept. 11, 1981.
Decided March 1, 1982.
Katherine Gruenheck, Washington, D. C., argued, for defendants-appellants; Robert E. Kopp, Alice Daniel, Washington, D. C., Andrea Sheridan Ordin, U. S. Atty., Los Angeles, Cal., on brief.
Stuart P. Herman, Beverly Hills, Cal., argued, for plaintiff-appellee; John A. Lawrence, Richman, Sacks, Herman & Twitty, Beverly Hills, Cal., on brief.
Appeal from the United States District Court for the Cеntral District of California.
Before KASHIWA**, Associate Judge, and FLETCHER and NORRIS, Circuit Judges.
FLETCHER, Circuit Judge:
Appellee, Annie Houseton, filed this suit in 1978 for enforcement of a favorable Civil Servicе Commission Review Board (CSC) decision on her Title VII claim of race and sex discrimination by her employer, the Veterans Administration (VA). After a 16-month delay in which the CSC, and its successor, the Equal Employment Opportunity Commission (EEOC), failed to respond to a VA request for administrative reconsideration of Houseton's claim, the district court ordered enforcement of the CSC's ruling favorable to Houseton. The VA appeals. We note jurisdiction under 28 U.S.C. § 1291 (1976) and affirm.
FACTS
Plaintiff-Appelleе Houseton has worked for the VA as a Loan Specialist since 1965. As early as 1972, she unsuccessfully sought on-the-job training to qualify as a Real Estate Appraiser. In 1975, she filed an employment discrimination complaint with the VA based on its refusal to train her. The agency found no discrimination.
Houseton appealed the VA decision to the CSC. The Review Board found discrimination and ordered the VA to commence a training program for Houseton. In July, 1978, Houseton filed a сivil suit for enforcement of the CSC order and an award of attorney fees. In late August of 1978, prior to any proceedings in Houseton's civil suit, the VA sought CSC reconsideration of Houseton's case. The parties notified the court of the reconsideration request and asked for a 90-day stay in the civil suit. There followed a 16-month period of successive stays and promised action by the CSC and its successor, the EEOC, but no ruling issued on the VA reconsideration request.
On Octobеr 5, 1979, the district court ordered the VA and the EEOC to show cause why the 16-month delay in ruling on the reconsideration request should nоt be considered a dismissal of the request. The court held a hearing on this issue and subsequently entered its order finding the long dеlay in processing the VA's reconsideration request a dismissal of the request. The court therefore ordered еnforcement of the CSC decision granting Houseton training. The court also awarded Houseton attorney's fees. The VA appeals.
ANALYSIS
A. District court authority to declare EEOC delay a dismissal of the reconsideration request.
The distriсt court relied on sections 555(b) and 706(1) of the Administrative Procedures Act (APA), 5 U.S.C. §§ 555(b) and 706(1) (1976 and Supp. III 1979), as authority for its ruling that EEOC delay in resрonding to the VA reconsideration request amounted to a dismissal of the request. Section 555(b) of the APA provides that "(w)ith duе regard for the convenience and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it." Section 706(1) grants the district court power to "compel agency action unlawfully withheld or unreasonably delayed ...." Read together, the two sections provide that even though agency action may be subject to no expliсit time limit, a court may compel an agency to act within a reasonable time. See EEOC v. Liberty Loan Corp.,
B. Propriety of the district court's order under the action-forcing provisions of the APA.
Not every agency delay in responding to a matter presented to it warrants court action under sections 555(b) and 706(1) of the APA. A court mаy find agency inaction the equivalent of a dismissal or denial of the requested agency action only when the delay is unreasonable and results in serious prejudice to one of the parties. EEOC v. Exchange Security Bank,
More than 16 months have pаssed since Ms. Houseton prevailed before the Appeals Review Board. Under the circumstances of this case, this delay of more than 16 months is unreasonable.
The failure of the Government to act ... causes plaintiff irreparable injury since she is not receiving the training to which she is entitled.
We cannot say that either of these findings is clearly erroneous. Accordingly, on the facts of this case, we hold that the district court acted properly whеn it found EEOC delay in processing the VA's reconsideration request equivalent to a dismissal of that request.
Once the EEOC was dеemed to have denied the VA reconsideration request, the CSC decision of June 20, 1978, favorable to Houseton bеcame the final agency action in this case and the proper subject of an enforcement order. See 42 U.S.C. § 2000e-5(g) (1976) (in Title VII case district court may order appropriate relief); 29 C.F.R. § 1613.235(b) (1980) (once reconsideration request denied, final agency decision shall be implemented).
The decision of the district court ordering the VA to provide Houseton with appraiser training and awarding her attorney's fees, is, therefore, AFFIRMED.