227 U.S. App. D.C. 327 707 F.2d 524

707 F.2d 524

Adolph KIZAS, et al. v. William H. WEBSTER, et al., Appellants. Adolph KIZAS, et al., Appellants v. William H. WEBSTER, et al.

Nos. 82-1477, 82-1511.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 14, 1983.

Decided April 26, 1983.

*331Philip L. Chabot, Jr. and Mark S. Laufman, Washington, D.C., for appellants in 82-1511 and appellees in 82-1477.

Marleigh D. Dover, Atty., Dept, of Justice, with whom Stanley S. Harris, U.S. Atty. and Anthony J. Steinmeyer, Atty., Dept, of Justice, Washington, D.C., were on brief, for appellees in 82-1511 and appellants in 82-1477.

Before WALD and GINSBURG, Circuit Judges, and BAZELON, Senior Circuit Judge.

Opinion for the Court in parts I and II filed by Senior Circuit Judge BAZELON.

Opinion for the Court in part III filed by Circuit Judge GINSBURG.

BAZELON, Senior Circuit Judge:

For many years, the Federal Bureau of Investigation (“FBI” or “Bureau”) accorded a “special preference” to its clerical and support employees when making appointments to the position of Special Agent (“SA”). The Bureau substantially modified this preference in 1977 by adopting more stringent SA selection criteria and by implementing an affirmative SA hiring program for women and minorities. Adolph Kizas et al, representing a class of present and former FBI employees, challenge these changes. Named as defendants are FBI Director William H. Webster, former Director Clarence J. Kelley, and the United States of America.

In Number 82-1477, Webster et al. appeal a judgment of the district court holding that the modification of the special preference constituted a “taking” of the employees’ “property” in violation of the fifth amendment and the Tucker Act.1 In Number 82-1511, the employees cross-appeal an accompanying judgment dismissing their claim that the affirmative hiring program violates the fifth amendment and Title VII.2

For the reasons set forth below, we (1) reverse the district court’s determination that the employees possessed vested property rights in the former special preference, compensable under the fifth amendment’s takings clause or the Tucker Act; and (2) affirm the district court’s dismissal of the employees’ equal 'protection and Title VII challenges to the Bureau’s affirmative hiring program.

I. Background

A. The Controversy

The FBI recruits Special Agents3 through a variety of “programs” based on *332professional skills.4 Candidates are eligible for consideration in the “Modified Program” if they are at least twenty-three years old, have a college degree, and have at least three years of “professional, executive, complex investigative or other specialized experience.”5 Candidates meeting these threshold requirements undergo a battery of qualifying examinations, and are then competitively rank-listed. Once the Bureau determines the number of Modified Program slots in a given SA training class,6 candidates from the list are considered for appointment in rank-order.7

Until 1977, a “special preference” governed the participation of FBI employees in the Modified Program. This preference, developed as part of the Bureau’s Upward Mobility Plan,8 permitted clerical and support personnel to count their time with the Bureau toward satisfaction of the professional experience requirement; outside clerical work, on the other hand, was not considered “professional” experience. Moreover, Bureau employees’ qualifying examinations were evaluated on a pass/fail basis; the examinations of other SA candidates were graded on a competitive scale. Finally, Bureau employees who passed the examinations were considered for appointment on a chronological basis, according to their date of qualification; other SA candidates were considered in competitive rank-order.

These features of the special preference were an attractive incident of employment with the FBI.9 The parties agree that *333many college graduates joined the Bureau as clerical and support personnel in order to take advantage of the preference. The parties part company, however, in their perceptions of the Bureau’s encouragement of this practice. The employees contend that the Bureau offered the preference “as a recruitment device in order to entice the highly-qualified, college-trained plaintiffs to accept positions at the clerical level,” and that they “would not have accepted work at the FBI if the promises for advancement had not been made.”10 The Bureau vigorously responds that it “neither gave any assurances that the then current requirements of the Modified Program would remain in effect, nor gave any guarantees that applicants would become Special Agents when qualified.”11 The employees counter, and the district court agreed on summary judgment, that these disclaimers merely went to the likelihood of appointment once an employee had qualified for the special preference, and did not sufficiently indicate that the preference itself might be modified.12

An FBI “Ad Hoc Task Force” unanimously concluded in 1976 that the special preference system should be overhauled.13 Specifically, the group found that the system (1) was .not ensuring the appointment of the best qualified Modified Program candidates to the Special Agent position, and (2) had caused morale problems among the Bureau’s career personnel to reach a “critical state” by “erod[ing] the true meaning of career development and upward mobility for our experienced career-minded employee.” 14

Acting on the Task Force recommendations, Director Kelley ordered implementation of a “New Special Agent Selection *334System” (“NSASS”) in April 1977.15 The NSASS has “radically” changed the Bureau’s Upward Mobility Plan.16 Although clerical and support employees can still count their time with the Bureau toward satisfaction of the professional experience requirement, pass/fail examinations and the chronological ranking system have been eliminated. Under the NSASS, Bureau employees seeking an SA appointment pursuant to the Modified Program are competitively ranked with all other Modified Program applicants on the basis of test and interview scores.

Clerical and support personnel who had qualified for chronological consideration under the old system registered several complaints with the Bureau, requesting that their preferential status be “grandfathered.” 17 The Bureau rejected these suggestions on the grounds that (1) the employee morale problems engendered by the old system demanded immediate rectification, and (2) the goal of selecting “only the best qualified individuals ... for further consideration” should proceed without delay.18

When the Bureau first implemented the NSASS in 1977, just over one percent of Special Agents were women, and fewer than five percent were minorities. Concluding that “certain investigative functions could be performed more effectively by particular minorities or by women,” and that the SA force should on principle be “as representative of the community as possible,” the Bureau modified the NSASS by adding two affirmative hiring programs— “Female” and “Minority” — to the existing SA selection programs.19 The Bureau set the test score cut-offs for applicants in the new programs at a lower level than those for applicants in the other programs.20

B. The District Court Proceedings

On May 31, 1978, a group of clerical and support employees filed a class action in district court against Director Webster and *335former Director Kelley in their individual and official capacities.21 Invoking general federal question jurisdiction,22 the employees argued that their “expectation of special consideration was a property interest that arose out of their employment contráctil]” with the Bureau.23 Webster and Kelley, they argued, had “unilaterally revoked” this property interest “without compensation or procedure” as required by the fifth amendment.24 The employees sought relief in the form of (1) money damages for lost income and advancement and for violation of their constitutional rights, (2) an injunction preventing Webster “from continuing his unlawful acts,” and (3) a writ of mandamus directing Webster to fulfill his “contractual obligation.” 25

The employees subsequently filed an amended complaint, which repeated in its first count (“the takings count”) the allegations of the original complaint, and alleged in its second count (“the discrimination count”) that the Bureau’s affirmative hiring program for women and minorities violated Title VII26 and the equal protection component of the fifth amendment’s due process clause.27 The amended complaint sought the identical relief requested in the original complaint.

In a pre-judgment order, the district court held that the employees could pursue a Bivens-type action for damages,28 implied directly from the fifth amendment’s takings clause,29 against Webster and Kelley.30 On cross-motions for summary judgment, the court then held that the employees possessed “.vested contractual rights” in the special preference accorded them under the former upward mobility system.31 Because the preference was “a significant element of compensation,” the court reasoned, “[t]he Bureau could no more take [it] away ... without liability than it could refuse to pay an agreed amount of salary to one of its employees.”32 The court also concluded, *336however, that although Bivens damages for this “taking” could be awarded against Kelley and Webster in their official capacities, a qualified good-faith immunity shielded them from individual liability.33

Turning to the employees’ request for injunctive and mandamus relief, the court held that an order requiring “specific performance” of the former preference would be both improper34 and, in light of the availability of monetary relief, unnecessary. The court then dismissed the discrimination count, reasoning that a decision in the employees’ favor would “probably” give them merely the same relief as that flowing from its judgment on the takings count.35

Three months after judgment was entered, the district court substantially altered the jurisdictional foundations of its decision. Noting that the employees’ action had become “one essentially for money damages against the United States,” the court concluded that the Tucker Act36 was the “sole independent basis for jurisdiction” over the takings count.37 Accordingly, it granted the employees’ motion to amend their complaint to add Tucker Act jurisdiction and to add the United States as a party defendant.38 Because Tucker Act jurisdiction over claims exceeding $10,000 rested exclusively in the Court of Claims39 the district court also directed the employees either to transfer all their claims to the Court of Claims or to bifurcate their class, with the district court retaining jurisdiction only over individual claims that did not exceed $10,000.

At the same time, the court declined to reconsider its dismissal of the discrimination count, though for different reasons than those relied upon in its initial decision. With respect to the employees’ equal protection claim, the court held that Title VII constitutes the exclusive remedy for claims of employment discrimination by federal personnel subject to its protection. The court then dismissed the Title VII claim, holding that the employees had failed to observe the Act’s administrative charge-filing requirement.

The employees elected to bifurcate their class. As a result, the district court transferred all takings claims over $10,000 to the Court of Claims.40 Summary judgment on the remaining claims was awarded on February 18, 1982.41 This appeal and cross-appeal followed.

*337II. The Takings Count

Whether their claim is grounded on the Tucker Act or implied directly from the fifth amendment’s takings clause,42 the employees are entitled to relief only if they have a vested right to the former special preference. They have advanced two theories in support of such a right. First, they argue that the preference is an element of deferred compensation “due and owing” them. Second, they invoke procedural due process cases to argue that their “legitimate expectations” in receiving the preference transformed the preference into an indefeasible property right.

The employees’ first theory contradicts settled doctrines of federal employment and sovereign immunity. Their second theory, analogizing “property interests” protected by the due process clause to “property” protected by the takings clause, is fundamentally misconceived. Notwithstanding the equitable force of their claims, we therefore conclude that, as a matter of law, the employees had no vested rights in the former special preference.43

A. The Preference as an Element of Compensation

Although the employees filed four complaints over the course of the district court litigation, their theory of entitlement remained constant: that the special preference was a vested form of deferred compensation guaranteed by their “employment contract[s]” with the Bureau.44 They argued that the Bureau offered this preference “as consideration for their acceptance of employment” and that, in turn, they gave consideration through years of support and clerical labor and through foregone alternative employment.45 The district court agreed that the employees possessed “vested contractual rights” in the preference, reasoning that “[t]he history of representation, reliance, and mutual exchange of benefits contains all the elements of a classic contract implied in fact or of promissory estoppel.”46 In the court’s view, “[t]he fact that the employer in this case is the govern*338ment ... does not alter either the result or the analysis.”47

We respectfully conclude that the district court’s decision is irreconcilable with well-established doctrines of federal employment. With limited exceptions not relevant to the instant case, federal workers serve by appointment, and their rights are therefore a matter of “legal status even where compacts are made.”48 In other words, their entitlement to pay and other benefits “must be determined by reference to the statutes and regulations governing [compensation], rather than to ordinary contract principles.”49 “Though a distinction between appointment and contract may sound dissonant in a regime accustomed to the principle that the employment relationship has its ultimate basis in contract, the distinction nevertheless prevails in government service.”50

Applying these doctrines, courts have consistently refused to give effect to government-fostered expectations that, had they arisen in the private sector, might well have formed the basis for a contract or an estoppel. These cases have involved, inter alia, promises of appointment to a particular grade or step level,51 promises of promotion upon satisfaction of certain conditions,52 promises of extra compensation in exchange for extra services,53 and promises of other employment benefits.54

*339The employees argue, however, that this formidable body of precedent is inapposite, because previous cases “involve[d] merely an expectancy over which the government maintained discretion to grant or deny.”55 They seek to draw an “essential distinction between rights already earned and opportunities merely anticipated which distinguishes this case” from previous cases.56 There are two difficulties with this argument. First, it mischaracterizes precedent: The cases cited above typically involved situations where individuals claimed, as the employees here do, either that they had given “consideration” or that they had detrimentally relied on government assurances.57 Second, the purported distinction simply begs the question at issue: It fails to demonstrate that the preference was an element of compensation rather than an “opportunity merely anticipated.”

That question can only be answer-' ed by reference to statute and regulation. Title 5 of the United States Code and its implementing regulations set forth in meticulous detail the compensation that attaches to positions in the government service.58 These provisions govern all incidents of employee compensation, including basic salaries; salary increases; overtime, holiday and sick pay; life and health insurance benefits; retirement benefits; travel and subsistence allowances; and compensation for injury and unemployment.59 These provisions are the exclusive source of employees’ compensation rights.60 Employees may receive additional perquisites — such as career development programs, educational opportunities, attractive office surroundings, and so forth — but they have no indefeasible rights to such incidents.61 By limit*340ing compensation rights to those spelled out pursuant to Title 5, thereby barring “ ‘any additional pay, extra allowance, or compensation, in any form whatever,’ 62 Congress intended that “ ‘[ejxtras,’ which are such a fruitful subject of disputes in private contracts, were to be eliminated from the public service.”63 Because the special preference at issue here was not defined as an element of compensation by any statute or regulation, the employees’ argument that they had a vested right to its retention must fail.64

Even if the special preference had been created by statute or regulation, however, money damages from the government for its rescission would be precluded for another reason: The Supreme Court has repeatedly rejected the proposition that “the violation of any statute or regulation relating to federal employment automatically creates a cause of action against the United States for money damages.”65 Jurisdiction to award such damages exists only where the statutes or regulations on which rights are premised can also “fairly be interpreted as mandating compensation by the Federal Government for the damage sustained."66 Congress has delineated with precision the circumstances in which “unjustified or unwarranted personnel actions” may be remedied through money damages from the public fisc.67 The employees in the instant case do not fall within the scope of any of these statutory provisions. These provisions “would be rendered superfluous” 68 — and Congress’s intent therefore “would obviously be subverted”69 — if we *341upheld the district court’s judgment in the instant case.70

The employees invoke language in several Supreme Court opinions that, they claim, supports their “deferred compensation” analysis. The Court has noted, for example, that a government worker may recover for the denial “of pay due for services already performed, but still owing,” 71 and for “the benefit of the position to which he was appointed.”72 The employees’ argument that such language “precisely” characterizes their case73 merely begs the question of what benefits were in fact “due and owing” them. As discussed above, that question is answered exclusively by reference to the statutes and regulations governing compensation. The Court’s language can in no way be read as equitably expanding the definition of “pay” that is “due” government personnel.74

B. The Analogy to Due Process “Property Interests”

On appeal, the employees belatedly concede the “verity” of the doctrine that federal personnel do not have contractual relationships with the government75 They argue, however, that the district court’s “reference to certain contract principles” should now be read as “merely providfing] an analytical framework in which to consider the reasonableness of the expectations of the parties.” 76 In other words, they would distinguish between rights vesting through contract and rights vesting through “legitimate expectations which, once created, are *342protected from divestiture without compensation.” 77

In support of this purported distinction, the employees invoke a familiar line of cases holding that, for purposes of procedural due process guarantees, a person has a “property interest” in a governmentally conferred benefit if he has a “legitimate claim of entitlement” to the benefit.78 Where such a “property interest” exists, and an individual’s entitlement turns upon material questions of disputed fact, the due process clause guarantees minimum procedural protections, typically notice and an evidentiary hearing, when the individual is deprived of the benefit.79 In the realm of federal employment, protected “property interests” can arise not only through operation of statute and regulation, but also through “agency-fostered policies or understandings” 80 and the “implicit ... overall workings of a particular government employer.” 81

The employees correctly note that the district court relied heavily on these due process cases in fashioning its conclusion that the special preference was a “vested contractual right.” Neither the court nor the employees, however, examined the presupposition that underlies reliance on these cases: that a “legitimate claim of entitlement” rises to the level of “property” protected by the takings clause.

This presupposition is without foundation. As a leading commentator has admonished, “[t]he fifth amendment employs two independent clauses to address two independent issues. A claim of deprivation of property without due process of law cannot be blended as one and the same with the claim that property has been taken for public use without just compensation.”82 A “legitimate claim of entitlement” to a government benefit does not transform the benefit itself into a vested right. Rather, due process “property interests” in public benefits are “limited, as a general rule, by the governmental power to remove, through prescribed procedures, the underlying source of those benefits.”83

Richardson v. Belcher84 illustrates this distinction. In that case, the district court had held that recipients of social security disability benefits possessed “indefeasible” property rights that could not be divested by benefit-offset provisions enacted after *343they had begun to receive benefits.85 The district court grounded its decision on Goldberg v. Kelly,86 which held that entitlement to welfare benefits is in the nature of a “property interest” protected by procedural due process guarantees. The Supreme Court reversed, emphasizing the difference between entitlements and indefeasible rights: “[T]he analogy drawn in Goldberg between social welfare and ‘property,’ . .. cannot be stretched to impose a constitutional limitation on the power of Congress to make substantive changes in the law of entitlement to public benefits.”87

The district court’s judgment in the instant case rested on the same sort of analogy to procedural due process principles that was rejected in Belcher. If a clerical employee had arbitrarily been denied placement on the chronological list, his “legitimate claim of entitlement” to the special preference might well have guaranteed him minimum procedural safeguards. But here the underlying entitlement was itself abolished. Broad due process “property” concepts are therefore inapposite to the question whether the preference was an element of deferred compensation, a question governed exclusively by the doctrines outlined above in Part II-A.88 GINSBURG, Circuit Judge:

III. The Discrimination Count

The second count (Count II) of the Kizas complaint89 challenges the phase of the *344NS ASS associated with the Bureau’s affirmative hiring program.90 Two new Special Agent selection tracks were established in this phase, one for women, one for members of certain minority groups.91 These tracks, the Kizas complainants contend, exacerbated removal of the marked preference formerly accorded the class of clerical employees to which they belong, a class largely composed of white males.92 The new tracks, they allege, created sex- and race-based preferences in violation of Title VII of the Civil Rights Act of 1964 and the fifth amendment to the Constitution.

Ultimately, the district court dismissed the race and sex discrimination challenge, holding crisply that (1) Title VII “constitutes the exclusive remedy for claims of employment discrimination by federal employees subject to its protection,” and that (2) the Kizas complainants could not pursue a Title VII action in court because they had neglected a precondition to suit — they had failed to file a discrimination charge at the administrative level. Opinion II, 492 F.Supp. at 1151.93 The dismissal of Count II on the grounds stated correctly reflects the governing law and is therefore affirmed.

A. Exclusivity of Title VII for Covered Federal Employees

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. 42 U.S.C. §§ 2000e-2, 2000&-3 (1976). Section 717 of Title VII, added by section 11 of the Equal Employment Opportunity Act of 1972, 86 Stat. 103, III (codified at 42 U.S.C. § 2000e-16 (1976 & Supp. IV 1980)), extends the statute’s protection to federal employees, including “employees ... in executive agencies as defined in section 105 of Title 5.”94 As *345employees of the FBI, an executive agency within section 105’s compass, the Kizas complainants are clearly covered by Title VII.95

Despite coverage under Title VII, the Kizas complainants contend that they may pursue, additionally or alternately, a claim directly under the fifth amendment. This argument is unavoidably foreclosed by precedent. In Brown v. GSA, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976), the Supreme Court derived from the legislative history and structure of the 1972 Act an unqualified holding: Title VII of the Civil Rights Act of 1964, as amended, “provides the exclusive judicial remedy for claims of discrimination in [covered] federal employment.” Id. at 835,96 96 S.Ct. at 1969. The Title VII remedy declared exclusive for federal employees in Brown v. GSA precludes actions against federal officials for alleged constitutional violations as well as actions under other federal legislation. See Gissen v. Tackman, 537 F.2d 784 (3d Cir.1976) (en banc).97 We have followed the Supreme Court’s clear instruction, and have no warrant to depart from it in this case. See Lawrence v. Staats, 665 F.2d 1256, 1259 (D.C.Cir.1981); Torre v. Barry, 661 F.2d 1371, 1374 (D.C.Cir.1981); Hofer v. Campbell, 581 F.2d 975, 978 (D.C.Cir.1978), cert. denied, 440 U.S. 909, 99 S.Ct. 1218, 59 L.Ed.2d 457 (1979); Richardson v. Wiley, 569 F.2d 140, 141 (D.C.Cir.1977) (per curiam) (federal employee covered by Title VII may not sue under any other federal statute, e.g., 42 U.S.C. § 1981 (1976), or under the fifth amendment). See also Morris v. WMATA, 702 F.2d 1037 at 1040 (D.C.Cir.1983).

Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), relied upon by the Kizas complainants, leaves untouched the square ruling in Brown v. GSA that for the covered federal employee, Title VII is the “exclusive, pre-emptive administrative and judicial scheme for the redress of federal employment discrimination.” 425 U.S. at 829, 96 S.Ct. at 1966. Davis involved employment in the office of a member of Congress in a position outside Title VII’s domain. The Court held in Davis that section 717 does not foreclose the implication of a claim for damages directly under the fifth amendment when the complainant is “expressly unprotected by [Title VII].” 442 U.S. at 247, 99 S.Ct. at 2278. Citing Brown v. GSA, however, the Court noted that Title VII is exclusive when covered federal employees “seek to redress the violation of rights guaranteed by the statute.” Id. at 247 n. 26, 99 S.Ct. at 2278 n. 26.

The Kizas complainants suggest, in repeated but less than lucid argument, that the Constitution’s equal protection principle entails a stricter restraint on classification by race or sex than does Title VII and would shelter them against “reverse” discrimination that the statute may permit. See Post-Argument Memorandum at 6-10 (filed Jan. 21, 1983). We need not linger over this suggestion. It suffices to point out that if the statute permitted discrimination in government employment that the Constitution prohibits, courts would be *346obliged to hold the statute invalid to the extent it conflicted with the superior norm. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803); Dothard v. Rawlinson, 433 U.S. 321, 334 n. 20, 97 S.Ct. 2720, 2729 n. 20, 53 L.Ed.2d 786 (1977) (with respect to government employment, Title VII “would have to be interpreted at the very least so as to conform to the [equal protection principle]”).

In sum, the Kizas complainants are comprehensively protected by Title VII against federal employment discrimination. They may not circumvent the “careful and thorough remedial scheme” Congress ordered for them; their access to court is determined by that effective, albeit demanding, statute. Brown v. GSA, supra, 425 U.S. at 833, 96 S.Ct. at 1968. We consider next whether the Kizas complainants have met, or should be relieved of the obligation to meet, one of the statute’s demands, the administrative charge-filing requirement Congress ordered as a precondition to the maintenance of the Title VII court action challenging employment discrimination by a federal agency.

B. Title VII’s Initial Charge-Filing Requirement for Federal Employees

Relief under Title VII, in both private and public sector cases, is generally dependent upon the filing of a timely administrative charge. United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977); Brown v. GSA, supra, 425 U.S. at 832-33, 96 S.Ct. at 1967-68; see Porter v. Adams, 639 F.2d 273, 276 (5th Cir.1981) (“sine qua non” for Title VII civil action regarding federal employment is a complaint formally filed with the agency charged with discrimination). The timely charge-filing requirement, however, is not a jurisdictional prerequisite to suit in district court; it operates “like a statute of limitations, [which] is subject to waiver, estoppel, and equitable tolling.” Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982).

Concededly, no named plaintiff in this action, indeed no member of the Count II class that named parties now purport to represent, complied with the charge-filing requirement either on time or belatedly. Nonetheless, the Kizas complainants urge that the district court erred in dismissing their Title VII claim for failure to pursue administrative relief. They argue, primarily, that formal resort to administrative redress would have been futile. To demonstrate the futility of an application for administrative review, and to excuse their total bypass of that route to relief, they cite a late discovery of their attorneys. The Kizas complainants assert that over a year after amending their complaint to include the Count II sex and race discrimination challenge, on April 7, 1980, their attorneys learned that in 1977 a similarly situated individual, Ronald B. Manning, had filed an administrative complaint with the FBI’s EEO Office alleging race and sex discrimination stemming from the Bureau’s modification of the NSASS to incorporate an affirmative hiring program. Brief for Appellants at 24-25; see Reply Brief for Appellants at 21-23.98

We explain first why the required recourse to administrative review has special prominence with respect to the Title VII claims of federal employees, and why Zipes v. Trans World Airlines, Inc., supra, does not support judicial authorization of the total waiver the Kizas complainants urge. We then turn to the argument that the administrative charge filed by Manning should suffice to cover the class certified by the district court.

1. The primary role of federal agencies with respect to complaints of discrimination proscribed by Title VII

Title VII federal proceedings with respect to private sector employment gener*347ally originate when the complainant files a charge with the Equal Employment Opportunity Commission (EEOC), the federal authority broadly responsible for enforcement of the statute. See 42 U.S.C. § 2000e-5(b), (e) (1976); 29 C.F.R. §§ 1601.&-.14 (1982). The charging party in a private sector case need not first complain to the allegedly offending employer. By contrast, Congress directed federal employees or applicants for federal employment to complain initially to the agency alleged to have violated- Title VII. Regulations prescribe in detail the administrative procedures available to the charging party,99 and the statute hinges court review on prior resort to the agency whose employment practice is challenged. Section 717(c)100 authorizes the commencement of a civil action once the agency has taken “final action” on the charging party’s complaint or, if no “final action” is taken, after 180 days have elapsed from the filing of the “initial charge” with the agency.101

Congress did not casually impose the requirement that a person charging violation of Title VII by a federal agency initiate his or her complaint with the agency. Nor is the requirement a technicality. Rather, it is part and parcel of the congressional design to vest in the federal agencies and officials engaged in hiring and promoting personnel “primary responsibility” for maintaining nondiscrimination in employment. See 42 U.S.C. § 2000e-16(e) (1976 & Supp. IV 1980); Brown v. GSA, supra, 425 U.S. at 832, 96 S.Ct. at 1967.

Because Congress has unambiguously directed federal employment discrimination complainants to proceed first before the agency charged with discrimination, we have grave doubts whether any futility doctrine can be stretched to sanction court *348adjudication of a Title VII action when no party to the action has ever filed an initial charge with the agency.102 In any event, the complainants before us have not demonstrated cause to excuse their total bypass of the regulations governing the initiation of Title VII charges by federal employees.

The Kizas complainants cite their counsel’s April 18, 1978, letter to the Bureau Director as fair notice to the agency of their grievance. See Brief for Appellants at 24 n. 14; letter from Philip L. Chabot, Jr., to William H. Webster (April 18,1978), reprinted in II JA at 425-26. But this letter, sent several months after the FBI established the new selection tracks for women ,and minorities, protests only the retraction of the preference once accorded the class of clerical employees to which the complainants here belong; the letter says nothing at all about sex or race discrimination at the Bureau. The Kizas complainants further contend that at the administrative level corrective action pursuant to Title VII is envisioned only “as to complaints involving acts of individual discrimination rather than approved programs the discriminatory effect of which is class wide.” Brief for Appellants at 28. This contention is insubstantial. Regulations implementing section 717(b) specifically provide for the processing of class complaints. See 29 C.F.R. § 1613.603 (1982). See also id. § 1613.602(a) (more generous time limitation for invoking agency processes when employee or applicant “wishes to be an agent”).

Nor does the Supreme Court’s decision in Zipes v. Trans World Airlines, Inc., supra, bear the weight the Kizas complainants would place on it. Zipes posed the question “whether the statutory time limit for filing charges under Title VII ... is a jurisdictional prerequisite to a suit in the District Court.” 455 U.S. at 387, 102 S.Ct. at 1129. In the context of a private sector Title VII claim, the Court explained in Zipes that “the provision for filing charges with the EEOC should not be construed to erect a jurisdictional prerequisite to suit in the district court.” Id. at 397, 102 S.Ct. at 1134. We have held that the Zipes analysis is applicable to time limitations for filing administrative charges in federal employment discrimination cases. Saltz v. Leh*349man, 672 F.2d 207, 208 (D.C.Cir.1982) (per curiam); accord Milam v. United States Postal Service, 674 F.2d 860, 862 (11th Cir.1982).103 But nothing in Zipes suggests that parties complaining of federal employment discrimination in violation of Title YII should ever be waived into court without filing any initial charge with the agency whose practice is challenged. The Court in Zipes stressed that the charge-filing provision applicable to private sector claims, 42 U.S.C. § 2000e-5(e) (1976), “appears as an entirely separate provision”; “it does not . .. refer in any way to the jurisdiction of the district courts.” 455 U.S. at 394, 102 S.Ct. at 1133. In contrast, section 717(c), governing federal employment discrimination claims, does tie together initial recourse to the agency and subsequent recourse to a district court.104

The absence of precedent for skipping entirely over the “initial charge” requirement in federal sector cases is not surprising, for lower courts must heed the Supreme Court’s admonition that section 717 “does not contemplate merely judicial relief. Rather, it provides for a careful blend of administrative and judicial enforcement powers.” Brown v. GSA, supra, 425 U.S. at 833, 96 S.Ct. at 1968. Were we to embrace the futility or waiver arguments the Kizas complainants press and hold “unnecessary” 105 an initial charge filed with the FBI, we would sanction erosion of “the carefully structured scheme for resolving charges of discrimination within federal agencies.” Porter v. Adams, supra, 639 F.2d at 277.

2. The Manning initial charge

Shortly before the district court denied the Kizas complainants’ motion for reconsideration of the Count II disposition, see supra note 93, counsel for the Kizas complainants discovered that a clerical employee adversely affected by the NSASS, Ronald B. Manning, had filed an initial charge with the FBI.106 Several months after the Bureau’s Equal Employment Opportunity Officer notified Manning that the FBI had rejected his complaint of race and sex discrimination,107 Manning commenced a civil action challenging the NSASS. Manning v. Webster, No. 79-3429 (E.D.La. filed Sept. 5, 1979).108 Manning’s court complaint appears to be patterned on the Kizas amended complaint, filed more than six months earlier, on February 22, 1979. However, Manning did not seek to represent a class.109 Apparently because Manning had independently filed suit in the court of his choice on his own behalf, the Kizas complainants successfully moved in the district court to sever Manning from their Count II class claim.110

*350The Kizas complainants assert that the FBI’s disposition of Manning’s charge shows that any similar charge they might have filed would have been unavailing. We find this hindsight justification inadequate to relieve the complainants before us of the charge-filing requirement. The alleged 1980 discovery that Manning had filed a charge does not explain or excuse the Kizas complainants’ bypass of the agency in 1978, when they instituted this action, or in 1979, when they amended their complaint to add Count II.

The Kizas complainants further contend that Manning’s charge should count for all members of the class they describe. They correctly observe that “[n]ot every member of a class need independently exhaust administrative remedies prior to seeking judicial relief.” Brief for Appellants at 25; see Albemarle Paper Co. v. Moody, 422 U.S. 405, 414 n. 8, 95 S.Ct. 2362, 2370 n. 8, 15 L.Ed.2d 280 (1975). This court has held that “where two plaintiffs allege that they were similarly situated and received the same discriminatory treatment, the purposes of the exhaustion requirement are adequately served if one plaintiff has filed an [administrative] complaint.” De Medina v. Reinhardt, 686 F.2d 997, 1013 (D.C.Cir.1982). While a Title VII plaintiff may thus escape the administrative charge-filing requirement by joining with an individual, similarly situated, who has filed a charge, Foster v. Gueory, 655 F.2d 1319, 1322 (D.C.Cir.1981), there is no such joinder in this case.

Manning was severed from the Count II class. Neither a named representative, nor any person purportedly represented by named parties is alleged to have observed the charge-filing requirement. No authority has come to our attention supporting the argument that named class representatives, having bypassed initial recourse to administrative relief, may bootstrap their class claim on the independently-filed charge of a similarly situated individual who subsequently pursues his own lawsuit in a different forum.

It is the general rule that initial pursuit of administrative relief by at least one class member is a prerequisite to the maintenance of a class action against a federal agency even in cases in which a charge-filing requirement comparable to Title VII’s is not mandated. See Phillips v. Klassen, 502 F.2d 362, 369 (D.C.Cir.), cert. denied, 419 U.S. 996, 95 S.Ct. 309, 42 L.Ed.2d 269 (1974); League of United Latin American Citizens v. Hampton, 501 F.2d 843, 847 & n. 1 (D.C.Cir.1974); Marrone v. INS, 500 F.2d 418, 420 (2d Cir.1974) (per curiam). The Kizas complainants invite us to relax that minimal (“at least one”) requirement in a Title VII case, an area in which the requirement has special force and importance. They do so by citing, belatedly, a charge filed by an individual who never purported to act on behalf of a class before the agency, moreover, one who has selected another judicial forum for pursuit of his individual employment discrimination claim. We would undermine both Title VII’s initial charge-filing requirement for federal sector claims and appropriate limitations on class actions were we to accept the argument tendered.111

Conclusion

For the reasons stated, in Number 82-1477, we reverse the judgment for the employees on the “takings” claim and direct the district court to enter judgment for Webster et ah; in Number 82-1511, we *351affirm the judgment dismissing the employees’ discrimination claim.

It is so ordered.

Kizas v. Webster
227 U.S. App. D.C. 327 707 F.2d 524

Case Details

Name
Kizas v. Webster
Decision Date
Apr 26, 1983
Citations

227 U.S. App. D.C. 327

707 F.2d 524

Jurisdiction
District of Columbia

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