Shirey v. Devine

• Decision Date: 08 January 1982
• Docket Number: No. 80-2532,80-2532
• Citation: 670 F.2d 1188
• Parties: 27 Fair Empl.Prac.Cas. 1148, 27 Empl. Prac. Dec. P 32,355, 216 U.S.App.D.C. 369, 1 A.D. Cases 298 Edward N. SHIREY, on Behalf of Himself and All Others Similarly Situated, Appellant, v. Donald J. DEVINE, Director, Office of Personnel Management, Individually and in His Official Capacity, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1188

670 F.2d 1188

27 Fair Empl.Prac.Cas. 1148,

27 Empl. Prac. Dec. P 32,355, 216 U.S.App.D.C. 369,

1 A.D. Cases 298

Edward N. SHIREY, on Behalf of Himself and All Others Similarly Situated, Appellant, v. Donald J. DEVINE, Director, Office of Personnel Management Individually and in His Official Capacity, et al.

No. 80-2532.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 13, 1981.

Decided Jan. 8, 1982.

Andrew S. Penn and Larry J. Goldberg, Washington, D. C., with whom Seymour DuBow, Washington, D. C., was on the brief, for appellant.

Scott T. Kragie, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., and Royce C. Lamberth and Kenneth M. Raisler, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellees.

Before WRIGHT, TAMM, and EDWARDS, Circuit Judges.

Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.

Dissenting opinion filed by Circuit Judge TAMM.

J. SKELLY WRIGHT, Circuit Judge:

This case presents our first opportunity to reach the merits of a federal employee's claim that he suffered employment discrimination on the basis of a severe physical disability. ¹ We hold that permanent denial of the job tenure protections afforded other employees solely because of an employee's handicap violates Section 501 of the Rehabilitation Act of 1973, 29 U.S.C. § 791(b) (1976).

When Edward Shirey graduated from college in 1973 with a Bachelor of Science degree in business administration, he applied for an entry-level position as a computer systems analyst at the Goddard Space Flight Center, run by the National Aeronautics and Space Administration (NASA). Mr. Shirey is deaf, and officials at Goddard applied to the Civil Service Commission to "except" the position he would fill from normal competitive appointment processes. ² Upon receipt of Commission approval and certification of Mr. Shirey's ability to do the tasks required for his job, in August 1973 Goddard hired Mr. Shirey as a trainee, on a nine-month probation trial. For the next four and a half years Mr. Shirey worked alongside nonhandicapped analysts and mathematicians in Goddard's Management Systems Office. The record attests to his success on the job: he successfully completed his probation period and received a promotion shortly thereafter; his superiors wrote letters praising both his work as an analyst and the special efforts he made to help his hearing colleagues learn to work with him. Apart from teaching Mr. Shirey's co-workers some manual communication skills and making sure that Mr. Shirey would not have to work alone, Goddard incurred no extra expense because of Mr. Shirey's inability to hear. ³

In October 1977 NASA announced a reduction-in-force, beginning January 20, 1978, which would abolish Mr. Shirey's position along with 82 other positions at Goddard. Goddard employees who had been appointed to their positions through the competitive process had a number of job protection rights. They could "bump" employees with lower retention status from jobs that had not been abolished, and they received re-employment priority rights. ⁴ Mr. Shirey had completely different-and inferior-job protection rights, because he had been "excepted" from the competitive appointment process. ⁵ Unlike other members of his work group, who were able to find other positions at Goddard, Mr. Shirey was separated from the agency. He sought other employment in the federal government, but was unable to obtain any for two years.

After an unsuccessful administrative appeal, ⁶ Mr. Shirey brought suit in the District Court against responsible officials of the Civil Service Commission (now the Office of Personnel Management), NASA, and Goddard. He claimed that NASA's employment system, which denied him meaningful job tenure protections and promotion opportunities afforded other employees, violated the Veteran's Preference Act, 5 U.S.C. § 3502 (1976), the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq. (1976 & Supp. III 1979), and the Fifth Amendment's due process and equal protection guarantees. Although it held that Mr. Shirey had a cause of action to enforce Sections 501, 504, and 505 of the Rehabilitation Act, 29 U.S.C. §§ 791, 794, 794a (1976 & Supp. III 1979), the District Court granted summary judgment for the government defendants on all counts. Because we disagree with the District Court as to the substantive scope of the Rehabilitation Act's guarantee of affirmative action for the handicapped in federal government employment, we reverse. ⁷

I. Federal Employment of the Severely Disabled

The principal question at issue in this case is whether the Rehabilitation Act of 1973 requires the federal government to cease any discrimination against qualified handicapped employees. Our effort to resolve this question is complicated somewhat by the fact that Mr. Shirey's troubles were entirely due to the features of an administrative program under which he was hired, a program designed to promote federal employment for handicapped persons.

The government program under which Mr. Shirey was hired predated the Rehabilitation Act, and for many years it was the most important element in federal efforts to hire the handicapped. But the Rehabilitation Act of 1973 represented a powerful congressional initiative which, to a large extent, eclipsed and supplanted the prior efforts of the civil service authorities. The following sections of this opinion demonstrate, however, that those authorities have been slow to alter their programs in response to the new law. As a result, the program under which Mr. Shirey was hired (and which governed the conditions of his employment) failed to meet all the requirements of the Rehabilitation Act.

A. Administrative Program: Subsection (u)

The program under which Mr. Shirey was hired began as an administrative experiment in 1964, and its structure was largely shaped by the overall structure of the federal employment system. Civil service positions are divided into two categories: competitive service positions and positions excepted from the competitive service. 5 U.S.C. §§ 2102-2103 (1976 & Supp. III 1979). ⁸ Congress has excepted some positions from the competitive service by statute ⁹; others are excepted because they require Senate confirmation of appointees. ¹⁰ Furthermore, the President may prescribe rules for "necessary exceptions of positions from the competitive service(.)" Id. § 3302(1) (1976). The President, in turn, has delegated this authority to the Civil Service Commission and its successor, the Office of Personnel Management. Executive Order No. 10577, Rule VI, 3 C.F.R. 222 (1954-1958 Comp.), reprinted as amended, 5 U.S.C. § 3301 app. at 375 (1976).

Pursuant to the President's delegation of authority, the Civil Service Commission created a large number of excepted positions over the course of the years, linked principally by its determination that it would not be "practicable" to fill them by competitive processes. ¹¹ In 1964 the Commission included among these an experimental exception for positions filled by persons with severe physical handicaps. 29 Fed.Reg. 498 (1964) (codified at 5 C.F.R. § 213.3102(u)); cf. 28 Fed.Reg. 10327 (1963) (codified at 5 C.F.R. § 213.3102(t)) (mentally retarded persons). Three years later the Commission made these authorities permanent, and it removed numerical limits on the number of positions agencies could fill with physically disabled or mentally retarded persons. 32 Fed.Reg. 10635 (1967).

Subsections (t) and (u) are only two of many authorities for filling positions outside of the competitive service. Many of these identify jobs wholly different in character from those performed by competitive service employees ¹² or specialized part-time or seasonal work. ¹³ Subsections (t) and (u) differ from almost all other excepted service positions because they do not define the type of position to be filled, only the medical condition of the employee. ¹⁴ Subject to approval by the central civil service authority, see 5 C.F.R. § 213.102 (1981), any position in the civil service could be "excepted" for a handicapped person, regardless of the job duties, so long as the appointee was qualified to perform them. ¹⁵

In July 1969 the Civil Service Commission launched on its own initiative a program to promote what it called "selective placement," or "the careful matching of the abilities of the handicapped persons with the duties of particular positions." Federal Personnel Manual 306-3 (July 1969). As part of this program the Commission attempted to educate federal employers about the usefulness of subsection (u) authority as a means "to provide for continuing employment of severely handicapped people" by "match(ing) job tasks and work environment to accommodate the particular disabilities of a severely handicapped person." Id. at 306-14 (May 30, 1972). After the Commission began its 1969 campaign, employment of handicapped persons under excepted service authority increased substantially. ¹⁶ It was under this program that Mr. Shirey was hired, using subsection (u) to bypass the competitive appointment system.

B. The Rehabilitation Act

The Rehabilitation Act of 1973 was not the first congressional initiative relating to federal employment of the handicapped. In 1948 Congress enacted a strongly worded statute banning discrimination in federal employment, ¹⁷ but it was subsequently revised so that by the time Mr. Shirey lost his job it did not apply to his case. ¹⁸ The Rehabilitation Act of 1973, however, was the first major federal statute designed to provide assistance to the whole population of handicapped persons. As part of that effort, Title V of the Rehabilitation Act addressed discrimination against the handicapped. Section 501 required all departments and agencies in the Executive Branch to submit to the Civil Service Commission "an affirmative action program plan for the hiring, placement, and...