497 F.2d 702 | 4th Cir. | 1974
The narrow question presented by this appeal is whether a federal employee whose complaint of racial discrimination was pending administratively on March 24, 1972, the effective date of the Equal Employment Opportunity Act of 1972,
I
The procedural background of this case and the facts pertinent to this appeal can be briefly stated. At all relevant times, Executive Order 11478 and its supplemental regulations were in effect. The Order reiterates the government’s policy of assuring persons of all races equal opportunity to federal employment. In addition to encouraging the resolution of grievances on an informal basis, the President directed the Civil Service Commission and each department to provide for the prompt and impartial consideration of complaints of discrimination.
On November 30, 1971, the appellant, O’Neal W. Roger, applied for a better paying position in the Social Security Administration where he was employed. After discovering he had not been selected for the post, he lodged a complaint alleging that he had been denied promotion because of his race. On February 22, 1972, as the first step in the grievance procedure prescribed by the regulations, he wrote a letter to the director of the bureau where he worked.
II
Although the federal government has long barred its departments and agencies from discrimination against their employees on the ground of race, judicial enforcement of this policy was uncertain and ineffective before 1972.
The legislative history establishes that the 1972 Act did not create a new substantive right for federal employees. The constitution, statutes, and executive orders previously granted them the right to work without racial discrimination.
“Subsection (e) of the new section 717 creates a remedy in Federal district court — comparable to private employment actions — for any employee who has exhausted the equal employment opportunity complaint procedure within his Federal agency.”13
Section 717(c) evinces a congressional policy to make the courts the final tribunal for the resolution of controversies over charges of discrimination after all administrative remedies have been exhausted. This policy applies with equal reason to discrimination that occurred either before or after the passage of the Act when the earlier discrimination was the subject of administrative proceedings at the time of enactment. In both instances, the wrong is similar, and the requirement for exhaustion of administrative remedies is the same.
Section 717(c), read literally, applies to Roger’s pending claim. It authorized him to file a civil action against the head of his department because in the language of the statute: 1) his “complaint of discrimination based on race . . . [was] brought pursuant to . Executive Order 11478 . 2) he waited “one hundred and eighty days from the filing of the initial charge with the department, agency, or unit . . . ” before filing suit; and 3) he was “aggrieved ... by the failure to take final action on his complaint.”
Ill
The government advances three reasons why § 717(c) should not be applied to pending cases of discrimination. It relies primarily on a footnote in Cohen v. Chesterfield County School Board,
Cohen, however, is not controlling. There the issue concerned the validity of a school board’s regulation pertaining to maternity leave. For this reason, the court’s inquiry was directed to ascertaining the teacher’s substantive rights. The corollary of the teacher’s right was the obligation placed on the board. Obviously, during the time the board was exempt, the Act placed no obligation on it; consequently, the Act afforded the teacher no complementary right.
In contrast, Roger’s right to be free from racial discrimination does not depend on the 1972 Act. Executive Order 11478 previously imposed a duty on the officials of his department to promote employees without regard to their race. The Act provided Roger a supplemental remedy for a violation of the existing duty defined by the Order. We conclude, therefore, that Cohen furnishes no precedent for dismissing Roger’s complaint.
The government’s second reason for avoiding retrospective application of § 717(c) is based on § 14 of the 1972 Act.
We agree that § 717(c) is not an amendment to § 706, but this does not settle the matter. The difficulty with the government’s argument arises out of the failure to analyze the nature of the “new claim” the Act was said to have created. If the phrase means only a new substantive right, it is inaccurate because a federal employee’s right to be free from racial discrimination existed before the passage of the 1972 Act. If it includes — as it should — a new remedy to enforce an existing right, then under the general rule favoring retrospective application of procedural statutes, § 717(c) should be applied to pending cases for the reasons mentioned in Part II.
Moreover, we find nothing in the legislative history to justify the inference that by making amendments to § 706
The Senate, and later the House conferees, accepted Senator Javits’ amendment without any discussion about its effect on the rights of federal employees.
Finally, the government claims sovereign immunity, citing Gnotta v. United States,
find it inapposite. Gnotta was decided before the passage of the 1972 Act, and consequently it presented no occasion for considering whether § 717(c) should be applied retroactively to abrogate the doctrine with respect to pending complaints of racial discrimination. Clearly, Congress gave its consent for suits to redress discrimination occurring after passage of the Act. Whether this consent extends to pending cases of pre-Act discrimination depends on the propriety of retrospective application of the Act. Thus, the government’s plea of sovereign immunity does not resolve the issue; it simply restates the question in different words.
The only condition precedent to suit that Congress created was the exhaustion of administrative remedies, including those remedies that Executive Order 11478 made available both before and after the passage of the Act. Since Roger’s pending case satisfied this condition precedent, the express language of § 717(c) authorizes him to seek judicial relief.
The judgment is reversed, and the case is remanded for further proceedings.
. Pub.L.No. 92-261, 86 Stat. 103 (March 24, 1972), 42 U.S.C. § 2000e et seq. (1972).
. Other courts reaching the same conclusion include: Hill-Vincent v. Richardson, 359 F.Supp. 308 (N.D.Ill.1973); Freeman v. Defense Constr. Supply Center, 5 FEP Cases 505 (S.D.Ohio 1972); Mosely v. United States, 6 FEP Cases 462 (S.D.Cal.1973); Palmer v. Rogers, 6 FEP Cases 892 (D.D.C.1973).
. Exec. Order 11478 became effective on August 7, 1969. 3 C.F.R., 1969 Comp. 133, 42 U.S.C. § 2000e note (1970). The Civil Service Regulations which implemented the Order became effective on January 1, 1971. 5 C.F.R. § 713.201 et seq. (1971).
The preamble to the Order states :
“It has long been the policy of the United States Government to provide equal opportunity in Federal employment on the basis of merit and fitness and without discrimination because of race, color, religion, sex, or national origin. All recent Presidents have fully supported this policy, and have directed department and agency heads to adopt measures to make it a reality.”
. Exec. Order 11478, § 4; 5 C.F.R. §§ 713.212(a) and 771.303(a) (1971).
. 5 C.F.R. §§ 713.213 and 771.303(b)(2) (1971).
. Exec. Order 11478, § 4; 5 C.F.R. § 771.309 (1971).
. See generally, Walker v. Kleindienst, 357 F.Supp. 749, 751 (D.D.C.1973) (dictum).
The legislative history of the 1972 Act discloses Congress’ concern with the problem.
“The prohibition against discrimination by the Federal Government, based upon the*705 due process clause of the fifth amendment to the Constitution, was judicially recognized long before the enactment of the Civil Rights Act of 1964. [Bolling v. Sharpe, 347 U.S. 497, [74 S.Ct. 693, 98 L.Ed. 884] (1954) ] And Congress itself has specifically provided that it is ‘the policy of the United States to insure equal employment opportunities for Federal employees without discrimination because of race, color, religion, sex, or national origin. . . . ’ [5 U.S.C. § 7151 (Supp. II 1965, 1966)].
“The primary responsibility for implementing this stated national policy has rested with the Civil Service Commission, pursuant to Executive Order 11246 (1964) as clarified by Executive Order 11748. ■
“Despite some progress that has been made in this area, the record is far from satisfactory. Statistical evidence shows that minorities and women continue to be excluded from large numbers of government jobs, particularly at the higher grade levels.” H.R.Rep.No. 92-238, 92d Cong., 2d sess. (1972), 2 U.S.Code Cong. & Admin.News, pp. 2137, 2157 (1972).
. Pub.L.No. 88-352, 78 Stat. 253 (July 2, 1964), 42 U.S.C. § 2000e et seq. (1972).
. See n. 1, supra.
. The Equal Employment Opportunity Act of 1972, § 717, 42 U.S.C. § 2000e-16 (1972). All subsequent section references in the text are to the Act.
. Section 717(c), 42 U.S.C. § 2000e-16(c) (1972), provides:
“Within thirty days of receipt of notice of final action taken by a department, agency, or unit referred to in subsection (a) of this section, or by the Civil Service Commission upon an appeal from a decision or order of such department, agency, or unit on a complaint of discrimination based on race, color, religion, sex or national origin, brought pursuant to subsection (a) of this section, Executive Order 11478 or any succeeeding Executive orders, or after one hundred and eighty days from the filing of the initial charge with the department, agency, or unit or with the Civil Service Commission on appeal from a decision or order of such department, agency, or unit until such time as final action may be taken by a department, agency, or unit, an employee or applicant for employment, if aggrieved by the final disposition of his complaint, or by the failure to take final action on his complaint, may file a civil action as provided in section 2000e-5 of this title, in which civil action the head of the department, agency, or unit, as appropriate, shall be the defendant.”
. See nn. 3 and 7, supra.
. 118 Cong.Rec. 2279 (daily ed. Feb. 22, 1972).
. In Sampeyreac v. United States, 32 U.S. (7 Peters) 222, 239, 8 L.Ed. 665 (1833), the Court said:
“ [Considering the Act ... as providing a remedy only, it is entirely unexceptionable. It has been repeatedly decided in this court that the retrospective operation of such a law forms no objection to it. Almost every law, providing a new remedy, affects and operates upon causes of action existing at the time the law is passed.”
See also Thorpe v. Housing Authority of Durham, 393 U.S. 268, 281, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969); United States v. Village Corp., 298 F.2d 816, 820 (4th Cir. 1962).
. Greene v. United States, 376 U.S. 149, 84 S.Ct. 615, 11 L.Ed.2d 576 (1964); see Thorpe v. Housing Authority of Durham, 393 U.S. 268, 282 n. 43, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969) (dictum); 2 J. Sutherland, Statutory Construction § 41.09 (4th ed. 1973).
. Walker v. Kleindienst, 357 F.Supp. 749, 752 (D.D.C.1973), see also nn. 3 & 7, supra.
. Federal Reserve Bank of Richmond v. Kalin, 77 F.2d 50 (4th Cir. 1935) (jurisdiction enlarged) ; Hallowell v. Commons, 239 U.S. 506, 36 S.Ct. 202, 60 L.Ed. 409 (1916) (jurisdiction withdrawn).
. Hallowell v. Commons, 239 U.S. 506, 508, 36 S.Ct. 202, 60 L.Ed. 409 (1916).
. See n. 11, supra.
. Cohen v. Chesterfield County School Board, 474 F.2d 395-396, n. 1 (4th Cir. 1973), rev’d 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974).
. Similar language is contained in a footnote of the Supreme Court’s opinion. Cohen v. Chesterfield County School Board, 414 U.S. 632, 638, n. 8, 94 S.Ct. 791, 795, 39 L.Ed.2d 52 (1974).
. Since the Act imposed no duty on the board at the time the teacher was jdaced on maternity leave, the Court considered her constitutional claim and held that the maternity leave regulation violated the due process clause of the fourteenth amendment. Cohen v. Chesterfield County School Board, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974).
. Section 14, 42 U.S.C. § 2000e-5 note (1972), provides:
“Tlie amendments made by this Act to section 706 of the Civil Rights Act of 1964 shall be applicable with respect to charges pending with the Commission on the date of enactment of this Act and all charges filed thereafter.”
. 42 U.S.C. § 2000e-5(a) to (g) (1972).
. Hill-Vincent v. Richardson, 359 F.Supp. 308 (N.D.Ill.1973). The court, however, ruled that the complaint stated a cause of action under the fifth amendment. 359 F.Supp. at 309.
. 42 U.S.C. § 2000e-5(a) to (g) (1972).
. H.R.Conf.Rep.No. 92-899, 924 Cong., 2d sess., 2 U.S.Code Cong. & Admin.News 2179, 2185 (1972).
. 118 Cong.Rec. 2183 (daily ed. Feb. 21, 1972) .
. See nn. 27 and 28, supra.
. “Unless a contrary legislative intent appears, changes in statute law which pertain only to procedure are generally held to apply to pending cases.” 2 J. Sunderland, Statutory Construction § 41.09 at 281 (4th ed. 1973) .
. Gnotta v. United States, 415 F.2d 1271 (8th Cir. 1969), cert. denied, 397 U.S. 934, 90 S.Ct. 941, 25 L.Ed.2d 115 (1970); accord, Manhattan-Bronx Postal Union v. Gronouski, 121 U.S.App.D.C. 321, 350 F.2d 451 (1965).
. See n. 11, supra.
. Congressional intention to abolish the defense of sovereign immunity is disclosed in S.Rep.No. 92-415, 92d Cong., 1st Sess. 16 (1971):
“An important adjunct to [administrative] responsibilities is the statutory provision of a private right of action in the courts by Federal employees who are not satisfied with the agency or Commission decision.
“ . . . [T]he committee found that an aggrieved Federal employee does not have access to the courts. In many cases, the employee must overcome a U. S. Government defense of sovereign immunity . . . The provisions adopted by the*709 committee will [afford] . . . employees . . . the full rights available in the courts as are granted to individuals in the private sector under Title VII.”
. Henderson v. Defense Contract Admin. Region, 370 F.Supp. 180, 181 (S.D.N.Y.1973).