Koger v. Ball
| Decision Date | 10 May 1974 |
| Docket Number | No. 73-2332.,73-2332. |
| Citation | 497 F.2d 702 |
| Parties | O'Neal W. KOGER (on behalf of himself as an individual plaintiff, and as a member of a class for all present and prospective Negro employees of the Social Security Administration as a class), Appellants, v. Robert M. BALL, Commissioner of the Social Security Administration and the Department of Health, Education and Welfare, and Secretary, Department of Health, Education and Welfare, Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Luther C. West, Baltimore, Md. (West, Frame & Barnstein, Gerald A. Smith and Johnson, Smith, Opara & Erlich, Baltimore, Md., on brief), for appellants.
Thomas L. Crowe, Asst. U. S. Atty. (George Beall, U. S. Atty., D. Md., on brief), for appellees.
Before BRYAN, Senior Circuit Judge, and WINTER and BUTZNER, Circuit Judges.
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 1972,1 may seek judicial redress. The district court, ruling that it lacked subject matter jurisdiction to hear a complaint alleging discrimination that occurred before the effective date of the Act, and alternatively, that the complaint failed to state a claim on which relief can be granted, dismissed the employee's suit.2
We hold that the procedural provisions of the Act embrace those complaints that were being administratively considered at the time of its enactment. Accordingly, we reverse and remand the case for further proceedings.
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.3
On November 30, 1971, the appellant, O'Neal W. Koger, 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.4 The director denied relief and suggested that if Koger wished to pursue his complaint he should contact an equal opportunity employment counselor.5 The conferences with the counselor proved futile, so on April 28, 1972, Koger submitted a formal complaint to the Secretary of the Department of Health, Education and Welfare.6 Since no action had been taken on the complaint by November 17, 1972, Koger's lawyer made an inquiry to the Department. On December 4, 1972, the assistant general counsel replied that the complaint was still under review, but he added that Koger could now file a civil action without further notification from the Department. Accordingly, Koger, having waited 180 days from the institution of his complaint without receiving a decision, filed this action under the 1972 Act, which had become effective the previous March while he was pursuing his administrative remedies.
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 1972.7 To remedy this situation, Congress amended Title VII of the Civil Rights Act of 19648 by the Equal Opportunity Act of 1972,9 which among other provisions, added a new section pertaining to government workers.10 This section emphasizes that federal employment shall be "free from any discrimination based on race, color, religion, sex, or national origin." It refines the responsibilities and administrative procedures necessary for the departments, agencies, and Civil Service Commission "to maintain an affirmative program of equal employment opportunity," and it negates any intention to relieve government officials of their existing responsibilities "as required by the Constitution . . . statutes and Executive Order 11478." Bearing directly on this case, it provides in § 717(c) that after an aggrieved employee has exhausted his administrative remedies on a complaint brought pursuant to Executive Order 11478, he may file a civil action against the head of his department or agency.11
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.12 Section 717(c) simply created a new remedy for the enforcement of this existing right. Senator Cranston, a proponent of the legislation, explained its function as follows:
"Subsection (c) 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
Procedural statutes that affect remedies are generally applicable to cases pending at the time of enactment.14 Of course, retrospective application is not allowed when it will work a manifest injustice by destroying a vested right.15 But this exception plays no role here because the government has no vested right to discriminate against its employees on the basis of race.16 The general rule has been applied to cases affected by either the enlargement or the contraction of jurisdiction even though the causes of action arose before the enactment of the statutes that changed the court's jurisdiction.17 Mr. Justice Holmes succinctly explained why a statute that "takes away no substantive right, but simply changes the tribunal that is to hear the case" should be applied to pending cases. Retrospective application is appropriate when the statute "evinces a change of policy" arising out of a "consideration that applies with the same force to all cases."18 Though Mr. Justice Holmes spoke of the transfer of jurisdiction from the judiciary to the executive, his reasoning applies precisely to this case where we deal with the transfer of jurisdiction from the executive to the judiciary.
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 Koger'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."19 Koger's complaint, therefore, states a cause of action over which the district court has jurisdiction, unless his suit is barred by an exception to the general rule governing the retrospective application of procedural statutes.
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,20 in which we said, "Rules and practices of a public school board in effect when the board was exempt from the Equal Employment Opportunity Act cannot be the basis for a violation of that Act."21 The government contends that since it was similarly exempt until March 1972, Koger's suit, by analogy, cannot be maintained.
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.22 Because the footnote dealt with the board's duty and the teacher's substantive right, it must be read in this context.
In contrast, Koger'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 Koger a supplemental remedy for a violation of the existing duty defined by the Order. We conclude, therefore, that Cohen furnishes no precedent for dismissing Koger's complaint.
The government's second reason for avoiding retrospective application of § 717(c) is based on § 14 of the 1972 Act.23 This section provides that amendments made to § 706 of the Civil Rights Act of 196424 shall be applicable to charges pending before the Economic Opportunity Commission. The government contends that § 14 indicates that only the amendments to § 706 were to be given retroactive effect, and therefore § 717(c) cannot be applied retrospectively. In the leading case supporting the government, the court...
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