Jephunneh Lawrence v. Elmer B. Staats , 640 F.2d 427 ( 1981 )

Opinion for the Court filed by District Judge JOHN H. PRATT.

Concurring opinion filed by Circuit Judge MacKINNON.

Dissenting opinion filed by Circuit Judge SPOTTSWOOD W. ROBINSON, III.

JOHN H. PRATT, District Judge:

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.

Statement of Facts

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 defend-' ants’ 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.

Analysis

1. The Applicable Statutes:

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 (including employees and applicants for employment who are paid from nonappropriated funds), 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. (A6768).

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.

2. The Legislative History

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 Title VII made the following remarks on the Senate floor:

Mr. President, unfortunately, as drafted, these provisions, which in many respects only codify requirements presently contained in Executive orders and the Constitution, would not apply to employment in the Library of Congress. That is because legislative branch coverage in the bill is limited to “positions in the competitive service.” Although this would apply to both the General Accounting Office and the Government Printing Office— which are agencies of the Congress, it would not apply to the Library of Congress which does not have positions in the competitive service and is not generally bound by the Federal personnel manual. (Emphasis supplied).

118 Cong.Rec. 4921 (Feb. 22, 1972).

The reference to the coverage of the legislative branch being limited to positions in the competitive service⁴ and the applicability of such to the GAO is a clear expression of legislative intent.

While some argument may be made that the phrase “having positions in the competitive service” could identify either the governmental units that are covered or merely the employees within those units who may invoke the protection of Title VII, the clear weight of the legislative history supports the narrow view that Congress only intended the Act to apply to competitive service employees. Two recent judicial decisions have also recognized that the Title VII reference to the competitive service were an implicit attempt to exclude “excepted” service employees.⁵ In a recent opinion of this court, we stated that Title VII “expressly exempts non-competitive service employees of the Judicial and. Legislative Branches and arguably ... it does not embrace excepted service employees of the Executive Branch.” Bethel v. Jefferson, 589 F.2d 631, 637 n. 29 (D.C.Cir.1978). The Supreme Court appears to have accepted this interpretation in Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979).⁶

In summary, the import of the legislative history indicates the clear intent of Congress to include the GAO within the general coverage of Title VII and to apply said coverage only to GAO employees in the competitive service. The remedial provisions of Title VII do not reach excepted service employees. Since appellee Lawrence is an excepted service employee his employment rights are not protected by Title VII. What those rights are we do not consider. The sole issue certified on appeal concerned the applicability of Title VII to employees of the GAO. We therefore affirm the order of the District Court filed June 29, 1977 and remand this action to the District Court for further proceedings consistent with this opinion.

1 . The District Court’s ultimate holding was that:

An examination of the first part of the formula in 42 U.S.C. § 2000e-16(a), and of 5 U.S.C. § 105 to which it refers, indicates that for the purposes of Title VII, the General Accounting Office is an executive branch agency and that section 2000e-16(a) therefore excludes it from the coverage of Title VII. (A 67).

2 . The District Court’s reference to the conflict is as follows:

Aside from recitations of the text of the bill, this (Statement in the Conference Committee’s section-by-section analysis) appears to be the only direct reference of the General Accounting Office in the legislative history. This passage directly contradicts the language of the statute. Despite the specific nature of this statement in the conference report, this court feels constrained to hold that even this precise mention of the General Accounting Office in the report cannot supervene the plain language of the statute. (A 68).

3 . Further indication of GAO’s existence as part of the legislative branch is the fact that its operating funds are provided in the annual Legislative Branch Appropriations Act. See for example, the Legislative Branch Appropriations Act, 1978, Pub.L.No.95-94, approved August 5, 1977, 91 Stat. 653, 680.

In at least one prior enactment, Congress has treated the GAO as if it were a branch of the executive. See 31 U.S.C. § 46a which concerns the applicability of compensation provisions to employees of the GAO and provides that:

This Act and any other general legislation enacted governing the employment, compensation, emoluments, and status of officers and employees of the United States shall apply to officers and employees of the General Accounting Office in the same manner and to the same extent as if such officers and employees were in or under the executive branch of the Government. (Emphasis supplied).

Such language necessarily assumes that the GAO is not in the executive branch of the Government.

4 . The term “competitive service” is defined in 5 U.S.C. § 2102 as follows:

(a) The “competitive service” consists of—

(1) all civil service positions in the executive branch, except—

(A) positions which are specifically excepted from the competitive service by or under statute; and

(B) positions to which appointments are made by nomination for confirmation by the Senate, unless the Senate otherwise directs;

(2) civil service positions not in the executive branch which are specifically included in the competitive service by statute; and

(3) positions in the government of the District of Columbia which are specifically included in the competitive service by statute.

(b) Notwithstanding subsection (a)(1)(B) of this section, the “competitive service” includes positions to which appointments are made by nomination for confirmation by the Senate when specifically included therein by statute.

(c) As used in other Acts of Congress, “classified civil service” or “classified service” means the “competitive service.”

5 . The term “excepted service” is defined in 5 U.S.C. § 2103 as follows:

(a) For the purpose of this title, the “excepted service” consists of those civil service positions which are not in the competitive service.

(b) As used in other Acts of Congress, “unclassified civil service” or “unclassified service” means the “excepted service.”

6 . The Court also noted more directly that “since petitioner was not in the competitive service . . . the remedial provision of Section 717 of Title VII were not available to her.” Davis v. Passman, supra, at 247 n. 26, 99 S.Ct. at 2278 n. 26.