John E. Womack, Appellant v. James T. Lynn, Secretary of Department of Housing and Urbandevelopment, et al, 504 F.2d 267 (D.C. Cir. 1974)

We must decide whether Section 717(c) of the Equal Employment Opportunity Act of 1972, Pub. L. 92-261, 86 Stat. 111, 42 U.S.C.A. 2000e-16(c) (1974), which amends Title VII of the Civil Rights Act of 1964, Pub. L. 88-352, 78 Stat. 255, to grant federal employees the right to bring employment discrimination claims against the Government in United States District Courts, applies retroactively to actions pending on March 24, 1972, the effective date of the amendment. The District Court denied appellant, a federal employee, leave to amend his complaint to include the newly established Title VII claim and granted summary judgment for the Government. Because it is our view that Section 717(c) applies retroactively to actions pending on March 24, 1072, we reverse and remand this case for further proceedings.

Plaintiff-appellant John E. Womack is a black employee of the Federal Housing Administration (FHA), a division of the Department of Housing and Urban Development (HUD). In bare-bones outline, Womack's complaint of recial discrimination is that he has been repeatedly denied the opportunity to advance himself in the FHA while a white coworker with less experience and a lower GS grade has been promoted to a position that rightfully should have been his. In a chain of administrative proceedings commencing in 1068, Womack has exhausted his administrative remedies by pressing his claim through the various levels of the HUD and Civil Service Commission superstructure. The substance of his claim was sustained early on by Samuel J. Simmons, HUD Assistant Secretary for Equal Employment Opportunity. On October 28, 1969 Simmons adopted the finding of the hearing officer that Womack had been denied equal opportunity in his employment by reason of racial discrimination in violation of Executive Order 11246, 30 Fed.Reg. 12319 (1965).¹  Simmons ordered Womack promoted, but denied him the back pay and retroactive seniority to which he claimed he was entitled. All further proceedings, including the present one, have challenged only the adequacy of this remedy. On december 3, 1969 Womack requested that HUD reconsider its corrective action. Unsatisfied with HUD's minor modification in its remedy, announced on April 24, 1970, Womack appealed to the Board of Appeals and Review (BAR) of the Civil Service Commission. BAR rejected his appeal on September 8, 1970, and on May 14, 1971 Womack filed this suit against the Secretary of HUD and others, seeking back pay and retroactive seniority. The suit was based on various federal statues, regulations, and constitutional provisions.²  On May 31, 1972, after the effective date of the Equal Employment Opportunity Act of 1972, appellant sought to amend his complaint to add Section 717(c) as a basis of jurisdiction.³  The District Court denied appellant's motion for leave to amend on June 9, 1972 and on the same day granted summary judgment to the Government while denying appellant's summary judgment motion. No opinion accompanied any of these rulings. This appeal followed.

The question of the retroactivity of the amendments of Title VII that apply to the federal government has generated a spate of litigation, both in this circuit and elsewhere.⁴  Nonetheless, to date only two circuits have spoken on the isuse. The Sixth Circuit, in Place v. Weinberger, 497 F.2d 412 (1974), found that Section 717(c) did not apply retroactively, while the Fourth Circuit, in Koger v. Ball, 497 F.2d 702 (1974), found just the opposite. Having examined carefully both opinions, as well as the many District Court opinions and the arguments of the parties before us, we are persuaded that the Fourth Circuit's analysis is the better, both standing alone and in light of its convincing rebuttal of the statutory construction linchpin of the Place decision. Accordingly, we adopt the reasoning of Koger. Section 717(c) is merely a procedural statute that affects the remedies available to federal employees suffering from employment discrimination. Their right to be free of such discrimination has been assured for years.⁵  We hold that this remedial statute applies retroactively to proceedings already pending at the time of its effective date, March 24, 1972.⁶ 

Since we are without the benefit of an opinion from the District Court, we cannot be certain why appellant's motion to amend was denied and summary judgment entered against him. The transcript of the proceedings on June 9 strongly suggests, however, the reason was that the District Court did not believe Section 717(c) to be retroactive.⁷  Since this belief was erroneous, this case must be

Reversed and remanded.