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September 14, 1979

TOMMY SHAW, Plaintiff,
LIBRARY OF CONGRESS, et al., Defendants.

The opinion of the court was delivered by: OBERDORFER



 Plaintiff is a black employee of the Library of Congress ("The Library"). In 1976 and 1977 he formally complained to Library officials that the Library had failed to promote him from GS-13 to GS-14 because, among other reasons, it had failed to validate and correct its allegedly discriminatory job selection criteria and procedures. On August 16, 1978, Library officials executed a settlement agreement with plaintiff which recited that the Library was "uncertain whether its failure to use validated procedures in its selection process involved in those positions for which the (plaintiff) applied constitutes an unjustified, unwarranted or discriminatory personnel practice for which restitution is provided by law." *fn1" Plaintiff's Exhibit 1, filed February 1, 1979, at 1. In settlement the Library agreed "to continue its good faith effort to validate its employee selection procedures to the extent required by law as expeditiously as possible within its available resources and personnel," and to assign plaintiff to a "new position with the primary responsibility of implementing the Library's validation program." Id. at PP I.A., B. The Library further agreed to assign at least two competent professional staff members to assist plaintiff in his new work. In specific consideration for plaintiff's withdrawal of his administrative complaint and for undertaking his new responsibilities, the Library agreed to promote plaintiff to GS-14 and to make the promotion retroactive to January 18, 1977 with back pay and with grade increases

provided the Comptroller General determines that the Library may grant such retroactive promotion and backpay under the facts of this case.

 Id. at P II.C. The question to be put to the Comptroller General was whether, in settling a discrimination complaint such as plaintiff had made, the Library has legal authority to make a retroactive promotion with back pay without first making a formal determination that there was in fact discrimination. *fn2" The agreement did not articulate the various sources of statutory authority about which the Library sought the Comptroller's advice.

 When on August 16, 1978 the Library inquired of the Comptroller General, however, it effectively limited the inquiry to advice as to the Library's authority under the Back Pay Act, 5 U.S.C. § 5596 (1976). The August 16 letter conspicuously failed to ask the Comptroller General's advice about the Library's authority under Title VII to award back pay and promote retroactively in the absence of a finding of discrimination, and the Comptroller treated the inquiry as so limited. *fn3" Thus, on November 2, 1978, the General Counsel of the General Accounting Office responded to the Associate Librarian of Congress, stating the opinion that:

The Back Pay Act requires a finding by an appropriate authority that an unjustified or unwarranted personnel action has occurred and that "but for" that action, the employee would have been promoted.

 Plaintiff's Exhibit 2, filed February 1, 1979. The General Counsel's November 2 letter declined to advise about the Library's authority under Title VII, noting that since 42 U.S.C. § 2000e-16(b) (1976) gives

the Librarian of Congress separate authority to enforce Title VII of the Civil Rights Act with respect to employees of the Library, we do not express our opinion as to whether such a remedy would be authorized in this case under Title VII.


 Thereafter when plaintiff attempted through counsel to discuss the Library's authority under Title VII referred to in the General Counsel's letter, he was finally rebuffed by a January 4, 1979 letter from the Associate Librarian of Congress. This suit followed.


 The matter is now before the Court on cross-motions for summary judgment. Those motions and the supporting memoranda frame the narrow questions left unanswered by the GAO General Counsel: whether the Library, in settling employment discrimination complaints, is authorized by Title VII to award retroactive promotion with back pay without formally finding itself guilty of discrimination; and, if so, whether it may, consistently with the statute, adopt regulations that preclude it from exercising that authority, that is, that preclude it even from considering an award of back pay in the settlement negotiation process.

 The cross-motions are ripe for decision. The Library does not seriously advance the August 16, 1978 settlement agreement as a bar to the action. *fn4" Suffice it to say therefore that the correspondence between the Library, the GAO General Counsel and the plaintiff's counsel reveal mistaken legal and factual assumptions underlying the settlement agreement which neutralize its possible effect as a bar. *fn5" The Library was operating as if its authority were circumscribed by the Back Pay Act and by the Library's regulations issued pursuant to Title VII. Since, as will be developed, that assumption is erroneous, ...

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