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February 21, 1967

Air Transport Association Of America, et al., Plaintiffs,
Aileen C. Hernandez, et al., Defendants

Walsh, D.J.

The opinion of the court was delivered by: WALSH


Plaintiffs move the Court for a preliminary injunction to enjoin the Equal Employment Opportunity Commission from issuing an administrative ruling on the grounds of interest pertaining to the issues submitted to the Commission on the part of one of its members.

 Defendants, members of the Commission, and Defendant-Intervenor, Transit Workers Union of America, AFL-CIO, filed opposition and cross-motions to dismiss.

 The two primary considerations for this Court are: (1) does a District Court of the United States have jurisdiction to review the discretionary interpretations of the Commission under an allegation of prejudice; and (2) was the judgment of a member of that Commission so tainted by conflicting interest as to render her participation unfair on its face.

 The EEOC was established by the Civil Rights Act of 1964. *fn1" The Commission was created for the primary purpose of providing an arbitration clearing house for alleged employment discrimination. *fn2" The Act also provided that the Commission could, within its own discretion, issue written interpretations or opinions, and that certain immunity from suit based on those rulings would be granted. *fn3"

 Plaintiffs herein requested the Commission to issue a ruling on whether or not sex is a valid occupational qualification for the position of flight attendant, principally on commercial air flights. *fn4" The Commission, in its discretion, chose to entertain the question and to issue an interpretive ruling. Hearings began on May 10, 1966, but no decision was reached until November 9, 1966. Release of that decision has been held in abeyance pending a determination by this Court of the issues involved. *fn5"

 Defendants contend that a District Court has no jurisdiction to review interpretative rulings of the Commission, and further, that the Court has no jurisdiction to review the action of the Commission in permitting a particular Commissioner to rule on the question presented, or for the Court to disqualify that Commissioner. They urge that the Commission's ruling has no legal effect and, therefore, is not subject to review. Further, defendants argue that in at least three other sections of the Act jurisdiction is placed in the District Court, and that had Congress intended judicial review of their rulings, it would have specifically said so.

"In any action or proceeding based on any alleged unfair employment practice, no person shall be subject to any liability or punishment for or on account of (1) the commission by such person of an unlawful employment practice if he pleads and proves that the act or omission complained of was in good faith, in conformity with, and in reliance on any written interpretation or opinion of the Commission, . . . Such a defense, if established, shall be a bar to the action or proceeding, . . .".

 The Act further provides that if the interpretation is reversed or substantively altered by either the Court or the Commission the immunity dissolves prospectively.

 All parties agree that the defense provisions of the Civil Rights Act, Equal Employment Opportunities Subchapter, are similar in nature to the immunity provisions of the Portal-to-Portal Act. *fn6" Defense counsel refers to a long line of cases distinguishing between agency regulations, orders, rulings, interpretations, and opinions. Rather than involve itself in a semantic bramble bush, this Court takes cognizance of two cases cited by the defense.

 In American President Lines, Ltd. v. Federal Maritime Commission, 114 U.S. App. D.C. 418, 316 F.2d 419 (D.C. Cir., 1963), the Court found that an agency interpretation did not have the force of law or create standing to sue. It stated that neither the parties to the interpretation or the courts were bound by it. In the instant case, the parties and the Court are bound, at least retrospectively to the date of issuance, by the ruling.

 In Abbott Laboratories v. Celebrezze, 352 F.2d 286, 289 (3rd Cir., 1965), cert. granted 383 U.S. 924, 86 S. Ct. 928, 15 L. Ed. 2d 844, the Court stated, "The regulations in question are not those having the force and effect of law by virtue of the authority delegated by the Act." Section 2000e-12(b) creates an affirmative defense, presumably for employers against Section 2000e-5 actions. Here the authority delegated by the Act is the creation of an affirmative defense by an interpretation favorable to the plaintiffs and, no matter what its administrative nomenclature, it has the effect of law.

 Since the Commission's interpretative rulings under Section 2000e-12(b) do have the effect of law, the next question to consider is whether or not a District Court has jurisdiction to review those interpretations in any manner. Defendants urge that Congress demonstrated its intent by specifically referring to District Court jurisdiction in Sections 2000e-5(f), 2000e-6(b), and 2000e-8(c) of the Act and by not including jurisdiction in 2000e-12(b). Defendants also allude to the Administrative Procedure Act, 5 U.S.C. Sec. 553, making interpretive rulings expressly excluded ...

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