Lawrence v. Staats, 78-1015
| Decision Date | 05 February 1981 |
| Docket Number | No. 78-1015,78-1015 |
| Citation | 640 F.2d 427,205 U.S. App. D.C. 341 |
| Parties | 24 Fair Empl.Prac.Cas. 1711, 25 Empl. Prac. Dec. P 31,514, 205 U.S.App.D.C. 341 JePhunneh LAWRENCE, Plaintiff-Appellee, v. Elmer B. STAATS et al., Defendants-Appellants. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
JePhunneh Lawrence, pro se.
Paul F. Figley, Atty., Dept. of Justice, Washington, D. C., with whom Barbara Allen Babcock, Asst. Atty. Gen., Earl J. Silbert, U. S. Atty., and Robert E. Kopp, Atty., Dept. of Justice, Washington, D. C., were on brief, for appellants.
Stephen J. Hadley, Atty., and Roderic V. O. Boggs, Atty., Washington, D. C., were on brief, for the Washington Lawyers' Committee for Civil Rights Under Law as amicus curiae.
Before ROBINSON and MacKINNON, Circuit Judges, and JOHN H. PRATT, * United States District Judge for the District of Columbia.
Opinion for the Court filed by District Judge JOHN H. PRATT.
This case raises the important question whether employees of the General Accounting Office (sometimes hereinafter GAO) are covered by Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, 2000e-16(a). It comes before us on an interlocutory appeal, pursuant to 28 U.S.C. § 1292(b), from the rulings of the District Court, Flannery, J., holding that Title VII does not apply to the GAO. For reasons set forth below, we affirm for reasons different than those stated by the district court, and remand for further proceedings consistent with this opinion.
Plaintiff, a former employee of GAO, brought suit for money damages and injunctive relief pursuant to Title VII, the Fifth Amendment and 28 U.S.C. § 1331 stemming from his dismissal from that employment. Plaintiff, as an "excepted service employee," was employed as an Attorney-Advisor at the GAO from August, 1976 until he was terminated effective July 15, 1977. The gravamen of his complaint is racial discrimination. Defendants moved to dismiss for failure to exhaust his administrative remedies, to which plaintiff responded that as an excepted service employee, he was not covered by Title VII, despite the coverage of GAO employees in the competitive service, and for the additional reason that exhaustion of administrative remedies would have been futile. In denying defendants' motion to dismiss, the District Court held that all employees of the GAO were outside the coverage of Title VII. 1 In its discussion, the District Court recognized the fact that the legislative history appeared to be at variance with the statutory language, and relied upon the latter as controlling. 2 In denying defendants' motion for reconsideration, the District Court certified the issue for immediate appeal.
The coverage of Title VII is set forth in 42 U.S.C. § 2000e-16(a) as follows:
Employment by Federal Government
(a) Discriminatory practices prohibited; employees or applicants for employment subject to coverage.
All personnel actions affecting employees or applicants for employment (except with regard to aliens employed outside the limits of the United States) in military departments as defined in section 102 of Title 5, in executive agencies (other than the General Accounting Office) as defined in section 105 of Title 5 (), in the United States Postal Service and the Postal Rate Commission, in those units of the Government of the District of Columbia having positions in the competitive service, and in those units of the legislative and judicial branches of the Federal Government having positions in the competitive service, and in the Library of Congress shall be made free from any discrimination based on race, color, religion, sex, or national origin. (Emphasis supplied).
The term "executive agency" in 5 U.S.C. § 105 is defined:
Executive Agency
For purposes of this Title, "Executive Agency" means an Executive department, a government Corporation, an independent establishment.
Pub.L.No.89-554, Sept. 6, 1966, 80 Stat. 379.
The term "independent establishment" is previously defined in 5 U.S.C. § 104 of the same statute to include:
... (2) The General Accounting Office.
Pub.L.No.89-554, Sept. 6, 1966, 80 Stat. 379; Pub.L.No.91-375, § 6(c)(2), August 12, 1970, 84 Stat. 775.
Based upon a literal reading of these statutory provisions, the District Court concluded that:
... regardless of whether the General Accounting Office is actually in the legislative branch, for the purpose of Title VII, the General Accounting Office is an executive agency. When Congress stated that Title VII would apply to executive agencies other than the General Accounting Office as defined in 5 U.S.C. § 105, Congress clearly exempted the General Accounting Office from coverage. (A67-68).
From the foregoing, there can be no doubt that the protections of Title VII apply to all employees of executive agencies and that except for the specific exclusion of GAO from coverage as an executive agency, all employees of GAO would have been included for coverage as such by virtue of 5 U.S.C. §§ 104, 105. This, however, does not end the matter.
The same sentence of the statute also provides coverage to those units in the legislative branch having positions in the competitive service. From this, it is argued that all employees of the GAO who were excluded from coverage in the parenthetical clause "(other than the General Accounting Office)" are to be included by reason of the coverage of "units of the legislative ... (branch)." It is not reasonable to ascribe to Congress the intent to exclude the particular group from coverage in the forepart of the sentence and then include the same group in the afterpart. The only reasonable accommodation is to ascribe to Congress the intent to extend only to those employees of the GAO holding positions in the competitive service the same coverage as those units of the legislative branch having positions in the competitive service. Such an interpretation not only removes the apparent gap or hiatus in the wording of the statute as written but recognizes the fact that the GAO is a part of the legislative branch of government, which fact is nowhere challenged and is conceded by the parties both here and below. 3 More importantly, it is consistent with the clearly expressed legislative intent that employees of GAO be covered under Title VII.
When 42 U.S.C. § 2000e-16(a) was being drafted in 1972, Congress had before it as models certain executive orders addressed to the subject of employment discrimination within the federal government. One of these was E.O. 11478, which prohibited discrimination in employment and was designed specifically to reach a very broad spectrum of federal employees:
Section 6. This Order applies (a) to military departments as defined in section 102 of title 5, United States Code, and executive agencies (other than the General Accounting Office) as defined in section 105 of title 5, United States Code, and to the employees thereof (including employees paid from nonappropriated funds), and (b) to those portions of the legislative and judicial branches of the Federal Government and of the Government of the District of Columbia having positions in the competitive service and to the employees in those positions. This Order does not apply to aliens employed outside the limits of the United States. (Emphasis supplied).
The language of 42 U.S.C. § 2000e-16(a) with respect to the executive branch is virtually a carbon copy of the underscored language in E.O. 11478. In view of the farranging reach of the Executive Order and its predecessors, it cannot plausibly be argued that Congress in employing almost identical language purposely intended to exclude employees of the GAO from coverage under Title VII.
In fact, the legislative history is to the contrary. The Conference Committee's section-by-section analysis printed in the Congressional Record at the request of Senator Williams, the primary sponsor of the Senate bill, contains a clear indication of what Government departments and offices Congress intended to reach when it adopted § 717(a) later codified as 42 U.S.C. § 2000e-16(a). It reads:
This subsection provides that all personnel actions of the U.S. Government, affecting employees or applicants for employment shall be free from discrimination based on race, color, religion, sex or national origin. Included within this coverage are executive agencies, the United States Postal Service, the Postal Rate Commission, certain departments of the District of Columbia Government, the General Accounting Office, Government Printing Office, and the Library of Congress. (Emphasis supplied).
118 Cong.Rec. 7169 (March 6, 1972), reprinted in Subcomm. on Labor of Comm. on Labor and Public Welfare, 92 Cong., 2d Sess., The History of the Equal Employment Opportunity Act of 1972 (hereinafter cited as Leg. Hist.), at 1850-51.
The section-by-section analysis also states:
This subsection would make clear that all personnel actions of the U.S. Government affecting employees or applicants for employment shall be made free from any discrimination based on race, color, religion, sex or national origin. All employees of any agency, department, office or commission having positions in the competitive service are covered by this section. (Emphasis supplied).
118 Cong.Rec. 4943 (Feb. 22, 1972), reprinted in Leg. Hist. at 1777.
These statements of the Conference Committee are not the only specific references in the legislative history to the GAO and to the general limitation to employees in the competitive service. Senator Cranston in sponsoring an amendment to bring the Library of Congress within the coverage of ...
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