The opinion of the court was delivered by: JONES
Plaintiff Barbara A. Ringer has brought this action for declaratory judgment and injunction against L. Quincy Mumford, the Librarian of Congress (Librarian) and Robert W. Hutchison, the Library's Director of Personnel, seeking to declare invalid and nullify the appointment of George D. Cary as Register of Copyrights.
Jurisdiction is based on 28 U.S.C. §§ 1331 and 1361 (1970).
Ringer has worked in the Copyright Office of the Library of Congress since 1949, and has served as Assistant Register of Copyrights since 1966. On August 6, 1971, the position of Register of Copyrights was posted as available as of September 1, 1971, because of the impending resignation of Abraham L. Kaminstein. Ringer and Cary, who was then Deputy Register, both applied for the position and Cary was appointed on August 27, 1971. Four days later, Ringer brought Civil Action No. 1769-71 in this Court seeking nullification of that appointment because the Librarian had failed to follow the Library's personnel rules regarding appointments, and because he had selected Cary instead of Ringer for reasons that were discriminatory on the bases of sex and race.
On September 27, 1971, this Court declared Cary's appointment null and void because of the Librarian's failure to follow the personnel regulations, and enjoined him from appointing a new Register until those regulations were complied with. No finding was made on the claims of race and sex discrimination. On November 1, 1971, the Librarian again appointed Cary as Register.
Even before Ringer brought Civil Action No. 1769-71, she had initiated proceedings under Library of Congress Regulation 2010-3 (June 26, 1967) (LCR 2010-3), in which she charged that the Librarian had appointed Cary because of discrimination based on sex and race. After the September 27, 1971, Order of this Court declaring that appointment null and void, the administrative proceeding initiated by Ringer progressed under the new LCR 2010-3, issued September 1, 1971. Ringer appealed the November 9, 1971, adverse decision of the Library's Equal Opportunity Officer pursuant to LCR 2010-3, § 5A.
A hearing officer was appointed to hear the appeal and hearings were conducted during nine days of April, 1972, with some 1,500 pages of testimony being taken.
On August 10, 1972, hearing officer Ernest Waller issued a 32-page ruling reviewing the relevant facts and regulations, concluding that a preponderance of the evidence established that "the rejection of . . . application for and appointment to the position of Register of Copyrights in the Library of Congress was the result of discrimination for reasons of sex and race."
The hearing officer recommended, among other items, that Cary's appointment as Register of Copyrights be rescinded and declared null and void and that Ringer be appointed, retroactive to October 29, 1971. The defendants submitted requests for reconsideration pursuant to LCR 2010-3, § 5 D(2) on August 22, 1972. On August 31, 1972, hearing officer Waller denied those requests. On September 28, 1972, in a letter to plaintiff's counsel, the Librarian denied any discrimination on his part, and refused to rescind Cary's appointment and appoint Ringer.
The case is now before the Court on cross motions for summary judgment. As in the prior Ringer case, the plaintiff argues that the Librarian, in refusing to rescind Cary's appointment and appoint her, has violated his own regulations, this time LCR 2010-3, § 5D(4):
All parties to the hearing and the Director of Personnel shall receive the findings, analysis, and conclusions of the hearing officer on reconsideration, and, if necessary, the Director shall initiate steps for appropriate corrective action, including proper notification to the staff member or members against whom the action is to be taken.
The plaintiff urges that this regulation requires the Librarian to follow the recommendations of the hearing officer. The defendants argue that the Librarian retains the final authority to appoint the Register of Copyrights under 17 U.S.C. § 202 (1970), and that LCR 2010-3 in no way binds the Librarian to rescind Cary's appointment. The defendants also argue that the findings and recommendations of the hearing officer were arbitrary and capricious and therefore need not be followed. The Court finds that LCR 2010-3 binds the Librarian to implement corrective action to remedy the findings of discrimination made by the hearing officer, and thus Cary's appointment must be declared null and void. The findings and recommendations of the hearing officer are found not to be arbitrary and capricious, and thus whether arbitrary and capricious findings must be followed under the regulations need not be decided.
It is clear that a federal agency must respect an employee's rights under that agency's own regulations. Service v. Dulles, 354 U.S. 363, 1 L. Ed. 2d 1403, 77 S. Ct. 1152 (1957). In holding the Secretary of State bound by regulations which removed his discretion in certain personnel matters, the Court in Service held that although
the Secretary was not obligated to impose upon himself these more rigorous substantive and procedural standards, neither was he prohibited from doing so . . . and having done so he could not, so long as the Regulations remained unchanged, proceed without regard to them. 354 U.S. at 388.
LCR 2010-3, § 5D(4) requires that the Director of Personnel (defendant Hutchison) "shall" initiate steps to implement corrective action appropriate to the findings of the hearing officer. In the instant case, the hearing officer found that Ringer had been discriminated against on the bases of race and sex. Therefore it was incumbent upon the Library to take action to correct the discrimination found by the hearing officer. At a minimum, corrective action would require the rescission of Cary's appointment.
The defendants argue that because the Librarian has the ultimate statutory power over appointment of the Register of Copyrights under 17 U.S.C. § 202 (1970), he was free to disregard the findings and recommendations of the hearing officer. This interpretation of the Library's own regulations is strained at best. Under this interpretation, the procedures for bringing complaints to redress alleged discrimination by the Library or its employees are essentially illusory. In effect, the defendants argue that even though a hearing, which may be an extensive proceeding, as in the instant case, results in a finding of discrimination, that finding may be disregarded by the Librarian because he disagrees with it. It hardly seems credible that the Library would draw a detailed set of regulations for processing complaints of discrimination and not regard them as binding upon itself.
Nor can it seriously be contended that the regulation is not binding upon the Librarian because the Director of Personnel and not the Librarian is mandated by LCR 2010-3, § 5D(4) to initiate corrective action upon a finding of discrimination. Once again, the defendants attempt to buttress the argument by reciting the Librarian's statutory authority to appoint the Register of Copyrights. But the defendants concede that the Librarian is the final decision maker on all appointments in the Copyright Office. To accept the defendants' position would make the regulations meaningless. No purpose would be served by a set of regulations purporting to afford a remedy for discrimination if the obligation of the Director of Personnel to initiate corrective action was subject to a veto by the Librarian.
The Librarian himself was a party to the appeals hearing conducted in this case. He also appeared as a witness, and gave over 200 pages of oral testimony. Under these circumstances, to give the Librarian the final decision on whether to implement corrective action to remedy the discrimination found by the hearing officer would be to construe the Library's discrimination regulations as an absurdity. Moreover, the Librarian himself indicated during the appeals hearing that his discretionary authority to make appointments is validly exercised only "as long as there is no indication of discrimination, or anything of a capricious nature."
A reasonable reading of the regulations would indicate that the Librarian has delegated his discretion in hiring and firing. As the Court ...