Jephunneh Lawrence v. Elmer B. Staats, Comptroller General of the United States General Accounting Office

665 F.2d 1256, 214 U.S. App. D.C. 438

• Court: Court of Appeals for the D.C. Circuit
• Decided: September 22, 1981
• Docket: 78-1015
• Status: Published

Opinions

ORDER

This matter is presently before the Court for consideration of appellants’ petition for rehearing. On consideration thereof, it is

ORDERED, by the Court, that the petition for rehearing is denied for the reasons set forth in the attached opinion. A dissenting opinion by Chief Judge Robinson is also attached.

PER CURIAM:

In May, 1977, appellee JePhunneh Lawrence, a former excepted service employee of the General Accounting Office (GAO), filed suit in the district court alleging that the GAO had discriminated against him on account of his race. Lawrence requested money damages and injunctive relief pursuant to Title VII and the equal protection guarantee of the Fifth Amendment. Appellants GAO and the Civil Service Commission (CSC) responded with a motion to dismiss the action in its entirety. They argued that Lawrence’s Fifth Amendment claim should be dismissed because Title VII constitutes the exclusive judicial remedy for claims of racial discrimination arising out of federal employment. Lawrence’s Title VII claim was barred, they asserted, because Lawrence had failed to exhaust the administrative remedies available to him through either the GAO or the CSC. Lawrence replied that his failure to exhaust administrative remedies was irrelevant because Title VII simply did not apply to him as an excepted service employee of the GAO. He thus contended that he should be allowed to pursue his constitutional claim. The district court held that Title VII did not apply to the GAO at all, and denied the motion to dismiss. This ruling removed Lawrence’s Title VII claim from the case, but left him free to proceed on his Fifth Amendment claim.

At that time, Title VII provided:

All personnel actions affecting employees ... in executive agencies (other than the General Accounting Office) as defined in Section 105 of Title 5 . . . and in those units of the legislative and judicial branches of the Federal Government having positions in the competitive service ... shall be made free from any discrimination based on race, color, religion, sex, or national origin.

42 U.S.C. § 2000e-16(a) (emphasis added). The district court construed this statute as indicating a Congressional intent to treat the GAO as an executive agency for the purposes of Title VII, since the GAO clearly was an executive agency as defined in 5 U.S.C. § 105. But because the statute prohibited discrimination in “executive agencies (other than the General Accounting Office)” (emphasis added), the court concluded that the GAO was entirely exempt from the reach of Title VII by virtue of the parenthetical clause italicized above.

At appellants’ request, the district court certified its order denying the motion to dismiss to this court for an .interlocutory appeal pursuant to 28 U.S.C. § 1292(b). The district court reasoned that whether Title VII applied to Lawrence constituted a controlling question of law because “[w]ere Title VII found to be applicable, the court would be constrained to dismiss the case due to plaintiff’s failure to exhaust administrative remedies.” A motions panel of this court subsequently granted appellants’ petition for permission to bring an interlocutory appeal.

On February 5,1981, this court issued an opinion in the case holding that although Title VII applied to the GAO, it did not apply to Lawrence as an excepted service employee. We therefore affirmed the order of the district court denying the motion to dismiss. Lawrence v. Staats, 640 F.2d 427 (D.C.Cir.1981). We agreed that the GAO was an executive agency under 5 U.S.C. § 105, and noted that the plain language of § 2000e-16(a) extended Title VII coverage to all employees of executive agencies as so defined. We determined, however, that the parenthetical clause “(other than the General Accounting Office)” did not evince a Congressional intent to exclude the GAO completely from the reach of Title VII, but indicated only that the GAO was not to be considered as an executive agency for purposes of Title VII. Looking to the legislative history of the statute, and recognizing that the GAO was in reality a part of the legislative branch of government, we concluded that the language in § 2000e-16(a) granting protection to “employees ... in those units of the legislative .. . branch [ ] of the Federal Government having positions in the competitive service” brought the GAO within Title VII. We also concluded, however, that such legislative branch coverage extended ohly to employees who held positions in the competitive service. Because Lawrence served in the “excepted service”, we held that Title VII did not apply to him. Accordingly, the cause was remanded to the district court for further proceedings consistent with our opinion.

Appellants have now petitioned for rehearing, citing a provision of the General Accounting Office Personnel Act of 1980, Pub.L. No. 96-191, 94 Stat. 27 (the 1980 Act), which deleted the parenthetical clause “(other than the General Accounting Office)” from the language in 42 U.S.C. § 2000e-16. See Pub.L. No. 96-191, § 8(g), 94 Stat. 34. Appellants correctly point out that under Title VII as it now stands, the GAO is treated as an executive agency, and all employees of the GAO, including an excepted service employee such as Lawrence, are entitled to invoke its protections. Appellants argue that we should give this . amendment retroactive effect, and remand this case for proceedings under Title VII. We decline, however, to require Lawrence in effect to return to square one and start over.

It is true that as a general rule an appellate court applies the law in effect at the time it renders its decision. Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975); Bradley v. School Board of Richmond, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974); Coca-Cola Co. v. FTC, 642 F.2d 1387 (D.C.Cir.1981). Since the 1980 Act became effective on October 1, 1980, see Pub.L. No. 96-191, § 10(a), 94 Stat. 34, approximately four months before we rendered our decision in this case, application of the 1980 Act to this case would appear proper at first blush. The general rule, however, is not without its exceptions, and the Supreme Court has declared that appellate courts should not give effect to an intervening change in the law where to do so would result in “manifest injustice.” Bradley, supra, 416 U.S. at 711, 94 S.Ct. at . We think this case falls within that exception.¹

If the 1980 amendment of Title VII were applied to this case, Lawrence’s Fifth Amendment claim would have to be dismissed, since Title VII would then constitute his exclusive judicial remedy. Torre v. Barry, 661 F.2d 1371 at 1374 (D.C.Cir. Aug. 1981); Hofer v. Campbell, 581 F.2d 975 (D.C.Cir.1978), cert. denied, 400 U.S. 909, 99 S.Ct. 1218, 59 L.Ed.2d 457 (1979); Richardson v. Wiley, 569 F.2d 140 (D.C.Cir.1977). Lawrence’s Title VII claim, however, would then be vulnerable to a motion to dismiss for having failed to exhaust administrative remedies, see 42 U.S.C. § 2000e-16(c), despite the fact that Lawrence was not required to exhaust such remedies at the time he filed suit.

The unfairness presented by this scenario need not be belabored. If the motion to dismiss were granted, Lawrence would be deprived of his sole judicial remedy merely because he did not comply with procedural requirements which did not exist until almost four years after he filed suit. Even if Lawrence were permitted now to pursue the available administrative remedies, his access to the courts, the forum he originally and properly sought, would be delayed until he spent the time and money necessary to wend his way through the administrative process. Given that Lawrence filed suit almost four years ago, and has yet to receive a hearing on the merits of his claim, we consider it would constitute manifest injustice to impose retroactive road blocks in the form of new procedural impediments to a hearing on his cause of action.² See Bradley, supra, 416 U.S. at 720, 94 S.Ct. at 2020 (manifest injustice may result when retroactive application of a new law imposes “new and unanticipated obligations” upon a party); Swinton v. J. Frank Kelly, Inc., 554 F.2d 1075, 1079-81 (D.C.Cir.), cert. denied, 429 U.S. 820, 97 S.Ct. 67, 50 L.Ed.2d 81 (1976) (amendment to Longshoremen’s and Harbor Workers’ Compensation Act which added new layer of administrative review and which became effective while case pending in district court construed to apply prospectively because to hold otherwise would require appellant to return to the administrative process and invest time and money to exhaust an administrative remedy which did not exist at the time suit was filed.) We accordingly decline to construe the 1980 Act as applying to the facts of this case, and deny the petition for rehearing. The case is remanded to the district court for further proceedings on Lawrence’s Fifth Amendment claim.

Judgment accordingly.

1 . Although the dissent is technically correct in stating that our original holding “is at odds with an amendment to Title VII recently, but earlier, enacted by Congress”, dis. op. at 1260 (footnote omitted), this statement places our original opinion in a somewhat misleading light. Our opinion contravened no statutory or judicial authority existing at the time the facts of this case occurred, or at the time the case was decided by the district court. Indeed, our original opinion blessed the result embodied in the district court’s order, albeit for different and narrower reasons. And although it is true that Congress amended Title VII to clarify its coverage of the GAO after oral argument was heard in this case but before our decision was handed down, this significant amendment was not brought to our attention by the GAO, although it must undoubtedly have been aware thereof in light of its passage as part of the General Accounting Office Personnel Act of . 1980. The GAO now petitions for rehearing, belatedly bringing the amendment to our attention, and requests us to apply it retroactively at the expense of Lawrence. As set forth above, we decline to do so and follow the rule that statutes should not be construed to apply retroactively where manifest injustice would result.

2 . The dissent argues that the 1980 Act imposes no new procedural impediments to a hearing on Lawrence’s claim because excepted-service employees were covered by Title VII even before the 1980 Act was passed. The evidence relied upon by the dissent, however, does not support this claim. As Representative Schroeder, the sponsor of the 1980 Act, stated:

The bill makes clear that the General Accounting Office is covered by Title VII of the Civil Rights law of 1964, forbidding employment discrimination. Up until now, GAO’s coverage under this law was unclear. 125 Cong.Rec. H9182 (1979) (remarks of Representative Schroeder) (emphasis added). See also S. Rep. No. 96-540, 96th Cong., 1st Sess. 10 (1979); H.R. Rep. No. 96-94, 96th Cong., 1st Sess. 5 (1979), U.S.Code Cong. & Admin. News 1980, p. 50. The legislative history of the 1980 Act, therefore, does not demonstrate that Congress believed the GAO was already covered by Title VII; rather, the history shows that Congress thought the matter of Title VII coverage for GAO employees, in both the competitive and excepted service, was uncertain, and that the best manner to effectuate its intent to bring all GAO employees within Title VII was to amend the statute. No further inference can safely be drawn from the passage of the 1980 Act and its legislative history. Since our decision in Lawrence v. Staats, 640 F.2d 427 (D.C. Cir.1981), the sole judicial pronouncement on the scope of Title VII protection afforded GAO employees held that Title VII did not apply to GAO’s.excepted service employees. The 1980 Act would indeed impose new procedural impediments in Lawrence’s path were we to apply it retroactively.

Furthermore, any implications in the dissent notwithstanding, we do not hold today that a federal employee who is not protected by Title VII need not exhaust any available administrative remedies before bringing suit in federal court upon a constitutional claim. This issue was not raised by the government either in the district court or in this court. All we hold today is that, given the drawn out history of this case and its present posture, it is too late in the day for the government now to prevail upon any exhaustion theory with respect to Lawrence’s constitutional claim.