Kulkarni v. Alexander

• Decision Date: 29 September 1978
• Docket Number: No. 77-1510,77-1510
• Citation: 662 F.2d 758
• Parties: 22 Fair Empl.Prac.Cas. 1470, 18 Empl. Prac. Dec. P 8644, 213 U.S.App.D.C. 243 Ramchandra KULKARNI, Appellant, v. Clifford L. ALEXANDER, Jr., Secretary of the Army, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 758

662 F.2d 758

22 Fair Empl.Prac.Cas. 1470, 18 Empl. Prac.

Dec. P 8644,

213 U.S.App.D.C. 243

Ramchandra KULKARNI, Appellant, v. Clifford L. ALEXANDER, Jr., Secretary of the Army, Appellee.

No. 77-1510.

United States Court of Appeals, District of Columbia Circuit.

Argued May 12, 1978.

Decided Sept. 29, 1978.

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 76-1849).

Patricia J. Barry, Washington, D. C., for appellant.

Charles H. Anderton, Jr., Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., and John A. Terry and Joseph Guerrieri, Jr., Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Also John W. Polk, Asst. U. S. Atty., Washington, D. C., entered an appearance for appellee.

Before McGOWAN and WILKEY, Circuit Judges, and DAVIS, Judge, United States Court of Claims. ^*

Opinion for the court filed by Judge DAVIS.

DAVIS, Judge:

This appeal by Dr. Ramchandra Kulkarni, a naturalized citizen born in India, brings before us certain aspects of his claim that he was discriminated against, on account of his national origin, in his employment by the Department of the Army as a civilian research chemist. The matter is somewhat complicated because appellant brought two successive discrimination suits in the District Court. Only the judgment in the second of these actions is now before us, but the proceedings and judgment in the first suit are directly pertinent to this appeal and we have to consider them in some detail.

Appellant began his service as a research chemist (grade GS-13) with the Army in August 1963 and continued to work at that level in what became known as the Biomedical Materials and Applications Branch, Biomaterials and Evaluation Division, United States Army Medical Bioengineering Research and Development Laboratory (stationed at various places in the 60's and 70's, but ending at Fort Detrick, Md.). After the head of the branch (Dr. Wade, a black male) was promoted to division head on December 2, 1973, a search was made for a successor to Wade as branch chief. ¹ Appellant was among those considered, but the person selected (as of December 29, 1974) was a white man, Dr. Dillon.

Appellant complained to the Equal Employment Opportunity Counselor at Fort Detrick that his failure to be appointed branch chief was the latest action in a pattern of discrimination, based on his national origin, going back to the mid-1960's. The Counselor was unable to resolve the complaint and so informed appellant toward the end of January 1975. The latter then filed a formal discrimination complaint with his agency; this was considered by the United States Army Civilian Appellate Review Office which recommended a finding of no discrimination. This recommendation was accepted by the Commanding General of the United States Army Medical Research and Development Command-the relevant subdivision of the Army Department.

Appellant then exercised his right to have a hearing before a Civil Service Commission examiner. On December 23, 1975, ² the examiner concluded that Dr. Kulkarni had been denied promotion to the grade of GS-14 and to the branch chief position because of discrimination based on national origin. He recommended, inter alia, that (1) appellant be promoted retroactively (with back pay) to GS-14, effective February 18, 1973, a two-year period prior to the date of his formal discrimination complaint; ³ and (2) appellant be retroactively assigned at grade GS-14, as chief of the branch as of December 3, 1973, the date that post became vacant because of Dr. Wade's elevation, but that appropriate higher-level authorities consider whether the correct level for the branch chief position should be GS-13 or GS-14. The next step was for the Army to decide whether it accepted or rejected the recommendations of the Civil Service Commission examiner.

On January 23, 1976 the Army (1) accepted the examiner's finding of discrimination in appellant's nonselection as branch chief; (2) ordered appellant retroactively promoted with back pay to branch chief, as a GS-13 position, as of December 29, 1974 (the day the position was filled by Dr. Dillon) rather than December 3, 1973 (when the vacancy occurred); and (3) deferred decision (until further information was supplied) on the questions whether appellant deserved retroactive promotion to GS-14 and whether the branch chief position was downgraded to grade GS-13 for discriminatory reasons. ⁴ (Purporting to implement this decision of its own, the Army subsequently cancelled (in February 1976) the RIF notice sent to appellant in December 1975 (see note 2, supra ), but the next day sent him a new RIF notice reducing him to GS-12, effective April 18, 1976.)

Appellant immediately appealed the adverse aspects of the Army's decision of January 23, 1976, to the Appeals Review Board of the Civil Service Commission (as the regulations authorized him to do) but, before that body could act, he filed his first complaint in the District Court against the Secretary of the Army, Kulkarni v. Hoffman, C.A. No. 76-347 (D.D.C., filed March 1, 1976), to compel the Army to comply more completely with the Commission Examiner's conclusions and to grant additional relief. Jurisdiction was asserted under Title VII of the Civil Rights Act of 1964, as amended; the Administrative Procedure Act, 5 U.S.C. §§ 701-706 (1976); and other statutes. On appellant's motion for partial summary judgment and the Government's motion to dismiss, Judge Flannery held (in a memorandum opinion of June 21, 1976, as modified by a supplemental memorandum and order of July 30, 1976): (1) 5 C.F.R. § 713.220(d) (1976) provides that the agency (the Army) must issue its final decision on a discrimination complaint within 30 days after a recommended decision by the Commission examiner favorable to the employee, or the agency will be bound by the examiner's recommendation; (2) since January 23, 1976 (the date of the Army's decision) was the 30th day after the examiner's decision, the Army had no right to defer decision on any part of appellant's discrimination complaint, the subsequent Army decision of April 1976 attempting to settle the deferred portion (see note 4, supra ) was a nullity, and accordingly the "final decision binding on the agency," 5 C.F.R. § 713.220(d), was composed of the Army's decision of January 23, 1976, plus those matters decided by the examiner which the Army sought to postpone; (3) under that view, appellant was entitled, not only to the relief already given him by the Army in the January 23rd decision, but also to retroactive promotion to GS-14 as of February 18, 1973 (the date the examiner had chosen) together with an independent, retroactive promotion to branch chief (as a GS-14 position) as of December 29, 1974; and (4) the court had jurisdiction under the Administrative Procedure Act to grant that much relief because the APA required the Army to abide by any controlling regulation. Judge Flannery then went on to rule that the court had no jurisdiction of the segments of appellant's action which were founded only on Title VII because the suit was filed, contrary to that Act, less than 180 days after the appeal to the Civil Service Commission's Appeal Review Board. See 42 U.S.C. § 2000e-16(c) (Supp. II 1972). ⁵ Jurisdiction of those portions of the complaint could not be grounded alternatively on such legislation as the Tucker Act, 28 U.S.C. § 1346(a)(2) (1970); 28 U.S.C. § 1331 Neither side appealed from this decision of Judge Flannery, but the Army's compliance with the court's order was slow. On October 5, 1976, more than 180 days having elapsed since his appeal from the Army's decision of January 23, 1976 to the Civil Service Commission, appellant brought a new action in the District Court against the Secretary of the Army, Kulkarni v. Hoffman, C.A. No. 76-1849 (D.D.C., filed Oct. 5, 1976), invoking Title VII and seeking to implement Judge Flannery's decision in the first suit as well as to gain further relief, particularly on the claim that the RIF and RIF notices were discriminatory and retaliatory. The next day, October 6, 1976-appellee says it was pure coincidence-the Army did promote appellant to the GS-14 level and made him branch chief at that level, all in accordance with the judgment in C.A. No. 76-347 (the first suit). However, a third RIF notice (issued November 3, 1976, and effective January 9, 1977) was sent to Dr. Kulkarni offering a GS-12 job. ⁶ This reduction became operative on January 9, 1977 but under the "safe pay" legislation Dr. Kulkarni will retain his pay at the GS-14 level for the two-year period until January 9, 1979. See 5 U.S.C. § 5337(a)(3) (1976); 5 C.F.R. §§ 531.501-.517 (1976).

(1970) ("federal question" jurisdiction); and 28 U.S.C. § 1343 (1970) ("Civil rights and elective franchise"), because the Title VII remedy was exclusive for federal employees alleging discrimination as a ground of recovery, Brown v. General Services Administration, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976). Appellant's request for attorney's fees was rejected on the ground that the Administrative Procedure Act contained no authorization for such payments and the court had at that time no jurisdiction under Title VII (which does provide for such fees).

Cross-motions for summary judgment were filed in the second suit (C.A. No. 76-1849). On March 29, 1977, Judge Flannery granted appellee's motion, overruling several contentions and holding that appellant was entitled to no further relief than he had already received as a result of C.A. No. 76-347; attorney's fees were also denied. This appeal is taken from that ruling but only three aspects are challenged: first, the court's refusal to inquire into and try the issue of whether the RIF was discriminatory (including retaliation); second, in any event, the refusal to order appellant retained at the GS-14 level; and, third, the refusal...