DATE: December 11, 1991
CASE NO. 80-OFCCP-6
IN THE MATTER OF:
OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
PLAINTIFF,
v.
BURLINGTON NORTHERN, INC.,
DEFENDANT.
BEFORE: THE SPECIAL ASSISTANT TO THE ASSISTANT SECRETARY
FOR EMPLOYMENT STANDARDS[1]
FINAL DECISION AND ORDER OF DISMISSAL
BACKGROUND
On December 3, 1979, Plaintiff, Office of Federal Contract
Compliance Programs (OFCCP), United States Department of Labor,
filed an Administrative Complaint alleging that Defendant,
Burlington Northern (Burlington), Inc., refused to hire Stephen
H. Brock as a Mechanical Department Laborer in April 1974 in
contravention of Section 503 of the Rehabilitation Act of 1973,
29 U.S.C. § 793 (Supp. V 1976), and implementing
regulations, 41 C.F.R. Part 60-741 (1979), because of Brock's
diabetic condition. In denying OFCCP's allegation, Burlington
answered that
[it] declined to hire Mr. Brock for the Laborer position for
which he applied, based upon the opinion of its medical
staff that by virtue of the nature and extent of his
diabetic condition, Mr. Brock could not reasonably be
expected to be capable of safely and effectively performing
the requirements of the specific job for which he applied.
Answer and Request for Hearing, December 14, 1979, at 2.
As a separate defense, Burlington alleged that OFCCP lacked
"jurisdiction over the allegations relating to Stephen Brock. . .
[because] such allegations pertain to matters occurring prior to
the effective date of the Rehabilitation Act of 1973 and [the
original] regulations [20 C.F.R. Part 741, 39 Fed. Reg. 20,566,
[PAGE 2]
June 11, 1974] implementing said Act." Id. at 3. This
defense became the basis of Burlington's Motion for Summary
Judgment, which asserted that "at the time of the alleged acts
which are the subject of this action, the required regulations
implementing § 503 of the Rehabilitation Act of 1973, 29
U.S.C. § 793, had not been promulgated, and therefore that
Section of the Act was not yet effective." Motion for Summary
Judgment, March 11, 1980, at 1.
On June 12, 1980, the Administrative Law Judge (ALJ) issued
an Order Granting Defendant's Motion for Summary Judgment and
Dismissing Complaint (ALJ S/J Order). He ruled that although
Section 503, as enacted on September 26, 1973, required an
"affirmation action" clause in Federal contracts and subcontracts
for the employment and advancement of qualified handicapped
individuals, the affirmative action requirement was not self-
effectuating from the language of Section 503(a) itself, but
depended upon the subsequent issuance of regulations specifying
the exact terms of the contract clause. These regulations were
not in existence at the time of the alleged discrimination
against Mr. Brock.
Thus, although the Act set forth the general requirement
that certain private contractors incorporate an
"affirmative action" provision in contracts with the
government, the specific duties to be included in such
provision and thereby undertaken by the contractor were not
defined in the Act, but were specifically intended to be
defined in the implementing regulations. Section 503(b) of
the Act (29 U.S.C. § 793(b)) gave the Department of Labor
the power to enforce compliance with the affirmative action
provision of a contract with the United States, but it did
not confer any broader enforcement powers. The Department
of Labor did not prescribe the required content of a
contractual affirmative action provision [20 C.F.R. §
741.3] until June 11, 1974, which was the first time that
Government contractors were informed of the required
provision. Therefore, Defendant contends that the
Department is without jurisdiction to exercise its
enforcement power with respect to occurrences in April of
1974, because at that time section 503(a) of the Act had
not been implemented by regulation and was therefore not in
effect.
The Government argues in essence that sections [sic] 503 of
the Rehabilitation Act of 1973 became implemented
automatically on its stated effective date and subsequent
regulations promulgated by the Department of Labor were
[PAGE 3]
merely interpretive in nature. This argument ignores the
plain meaning of the statutory language and is inconsistent
with prior interpretations of that language by the
Secretary of Labor.
Section 503(a) of the Act (29 U.S.C. § 793(a)) provides in
general terms that certain Government contracts shall
contain an affirmative action provision. Further, section
503(a) of the Act specifically provides that "the President
shall implement the provisions of this section by
promulgating regulations within 90 days after September 26,
1973." By including this provision, Congress clearly
stated that this section of the statute (section 503) was
not self-implementing, but must be put into effect by
regulation.
ALJ S/J Order at 3-4. Thus, the ALJ concluded that Burlington
was not subject to an affirmative action requirement at the time
of the challenged employment decision, since the regulatory
clause itself was not issued and made effective until a later
date.
The ALJ also held that the regulations could not be applied
retroactively.
In passing, it is noted that this argument is inconsistent
with the Government's contention that section 503 was self-
implementing and enforceable even in the absence of
regulations. The general rule is that "legislative" rules
are not to be retroactively applied, but must be considered
as addressed to the future and a retrospective operation
will not be given which interferes with antecedent rights
unless such be the unequivocal and inflexible import of the
terms and the manifest intention of the legislature. Green
v. U.S., 376 U.S. 149 (1964), quoting from Union Pac. R.
Co. v. Laramie Stock Yards Co., 231 U.S. 190. Since
section 503 of the Act does not contain any wording from
which a retroactive application of the regulations may be
even inferred, I hold that Congress intended no such
retrospective application. Had it intended such, it could
easily have said so, and I refuse to add that which
Congress failed to provide.
Finally, there is no valid policy argument to support
retroactive application of the regulations. The
prohibition against retroactive application of the
regulation would effect [sic] only those cases in which the
allegedly unlawful conduct occurred prior to June 11, 1974,
[PAGE 4]
and would not hinder, in any way, the Government's
enforcement efforts as to any occurrences from and after
that date.
ALJ S/J Order at 5.
OFCCP sought reconsideration on the ground that Burlington's
failure to hire Mr. Brock constituted a repeated or continuing
violation subsequent to the issuance of the implementing
regulations in June 1974. In August 1980, the ALJ denied the
motion, concluding that:
The Government has failed to offer any authority for
applying or extending the theory of "continuing violation"
to a claim of violation of the Rehabilitation Act of 1973
based on a one-time refusal to hire an individual. The
general rule is that a "refusal to hire" cannot sustain a
contention that a "continuing violation" has occurred.
Smith v. Office of Economic Opportunity for the State of
Arkansas, 538 F.2d 226 (CA-8, 1976). The Government has
offered no authority to the contrary. For the foregoing
reasons, I am persuaded that the Government's Motion for
Reconsideration is without merit and must, therefore, be
denied.
Order Denying Government's Motion for Reconsideration (ALJ Order
Denying Recon.) at 2.
OFCCP filed Plaintiff's Exceptions to the Decision of the
Administrative Law Judge (Exceptions) and Burlington filed
Defendant's Brief in Response to Plaintiff's Exceptions to the
Decision of the Administrative Law Judge. In view of the age and
complexity of this case, including the novelty of the affirmative
action self-implementation issue, on February 26, 1991, an Order
for Status Report and Briefing Schedule was issued to provide the
parties an opportunity to indicate whether this case should
proceed to final review and, if so, to provide a further brief on
the issues. On May 22, 1991, OFCCP filed Plaintiff's
Supplementary Brief on Exceptions to the Recommended Order of the
Administrative Law Judge (OFCCP's 1991 Brief) and Burlington
filed Defendant's Supplemental Brief (Burlington's 1991 Brief).
The matter is now before me, see note 1,
supra, for final adjudication. In accordance with my
responsibilities in this proceeding, I emphasize that this
decision is predicated solely upon analysis of the entire record
and pertinent applicable law, and I am mindful that requirements
established by Congress "are not to be disregarded by courts out
of a vague sympathy for particular litigants." Baldwin County
Welcome Center v. Brown,
[PAGE 5]
466 U.S. 147, 152 (1984); see Barnes v. Hillhaven
Rehabilitation Convalescent Center, 686 F. Supp. 311, 314
(N.D. Ga. 1988).
DISCUSSION
I proceed to OFCCP's various exceptions to the ALJ's Summary
Judgment Order and his Order Denying Reconsideration.
Exception A
OFCCP's continuing violation argument urges that its
Administrative Complaint should not have been dismissed because
Burlington committed repeated and continuous violations extending
past the effective date of the implementing regulations. On
review, I agree with the ALJ that the gravamen of OFCCP's case is
Burlington's single refusal, in April 1974, to hire Mr. Brock
before insertion of the prescribed affirmative action clause was
required in contracts made after issuance of the June 11, 1974,
regulations. See Burlington's Statement of Uncontested Facts,
filed with its Motion for Summary Judgment, Paragraphs 5 and 6.
Since OFCCP's Statement of Disputed Fact did not deny or dispute
Burlington's Statement, it must be deemed admitted pursuant to
the applicable summary judgment rule at 41 C.F.R. § 60-
30.23(d) (1990). See also 29 C.F.R. §§ 18.40
and 18.41 (1990) (summary decision rules of the Office of
Administrative Law Judges, U.S. Department of Labor). In
addition, during the preheating conference, OFCCP's counsel
stated that this proceeding was not a class action, but was
limited to alleged discrimination against Mr. Brock. T. at 4-5,
29-30, 34-35.
OFCCP's continuing violation theory cannot rely on the mere
conclusory allegations in paragraphs V and VI of its
Administrative Complaint of repeated violations against Mr. Brock
since April 1974 to defeat Burlington's Motion for Summary
Judgment. 41 C.F.R. § 60-30.23(e). Mack v. Great
Atlantic & Pacific Tea Company, Inc., 871 F.2d 179, 183-84
(1st Cir. 1989); O'Malley v. GTE Service Corporation, 758
F.2d 818, 820-22 (2d Cir. 1985); Miller v. Solem, 728 F.2d
1020, 1023-26 (8th Cir. 1984), cert. denied, 469 U.S. 841
(1984); Perez v. Laredo Junior College, 706 F.2d 731, 734
(5th Cir. 1983), cert. denied, 464
U.S. 1042 (1984); Tarpley v. Greene, 684 F.2d 1, 6-7 (D.C.
Cir. 1982); Kung v. Fom Investment Corporation, 563 F.2d
1316, 1317-18 (9th Cir. 1977). See also Chapman v. Homco,
Inc., 886 F.2d 756, 758 (5th Cir. 1989); Dillman v.
Combustion Engineering, Inc., 784 F.2d 57, 61 (2d Cir. 1986);
Cerbone v. International Ladies' Garment Workers' Union,
768 F.2d 45, 49 (2d Cir. 1985); Taylor v. General Telephone
Company of the Southwest, 759 F.2d 437, 442 (5th Cir. 1985);
Coke v. General Adjustment Bureau, Inc., 640 F.2d 584,
595 (5th Cir. 1981); Billings v. Tennessee Valley
Authority, Case No. 86-ERA-38, Secretary's Final Decision and
Order of Dismissal, June 28, 1990, slip op. at 10-12.
There is nothing in the record to indicate that Mr. Brock
[PAGE 6]
continued to seek employment with Burlington on or after the
effective date of the new regulations. Indeed, the record
indicates the contrary.
INTERROGATORY NO. 2:
Since May 1, 1974, has Stephen Brock ever had his
application for employment rejected for any reason? If so,
set forth as to each such rejection:
a. the date of the application;
b. the date of the rejection;
c. the name and address of the employer rejecting such
application;
d. the reason given for such rejection.
ANSWER:
No.
Plaintiff's Response to Defendant's Interrogatories at 1-2.
Thus, the ALJ was correct in holding that Burlington's single
refusal to hire does not constitute a continuing violation.
Williams v. Owens-Illinois, Inc., 665 F.2d 918, 924 (9th
Cir. 1982), cert. denied, 459 U.S. 971 (1982); Smith v.
Office of Economic Opportunity for the State of Arkansas, 538
F.2d 226, 228 8th Cir. 1976); Drayton v. Veterans
Administration, 654 F.Supp. 558, 567-68 (S.D.N.Y. 1987)
See also Hill v. AT&T Technologies, Inc., 731 F.2d 175,
179, n.8 (4th Cir. 1984); Patterson v. General Motors
Corporation, 631 F.2d 476, 484-85 (7th Cir. 1980), cert.
denied, 451 U.S. 914 (1981).
Since a single refusal to hire does not constitute a
continuing violation, OFCCP's characterization of Mr. Brock's
single rejection as a continuing violation predicated upon
Burlington's purported policy against hiring insulin-dependent
diabetics is also erroneous. See Exceptions at 4; OFCCP's 1991
Brief at 27.[2]
Exception B
OFCCP excepts to the ALJ's holding that Burlington was not
subject to a nondiscrimination/affirmative action hiring
requirement until the standard contractual clause specified in 20
C.F.R. § 741.3 became applicable to Burlington's new
contracts after its rejection of Mr. Brock. Thus, in view of my
ruling on Exception A, supra, the issue is whether
enactment of Section 503 itself obligated prospective Government
contractors to nondiscrimination/affirmative action hiring
requirements, or whether such requirements arose only upon the
later issuance and incorporation of the specified affirmative
action clause contained in 20 C.F.R. § 741.3. In this
regard, Section 741.54
[PAGE 7]
stated: "All solicitations issued after July 11, 1974, shall
contain the contract clause required by this regulation, and all
contracts executed after October 11, 1974, shall contain the
contract clause, regardless of the period of solicitation."
As enacted on September 26, 1973, and during the period at
issue, Section 503 read in pertinent part:
Sec. 503. (a) Any contract in excess of $2,500 entered into
by any Federal department or agency for the procurement of
personal property and nonpersonal services (including
construction) for the United States shall contain a
provision requiring that, in employing persons to carry out
such contract the party contracting with the United States
shall take affirmative action to employ and advance in
employment qualified handicapped individuals as defined in
section 7(6). The provisions of this section shall apply
to any subcontract in excess of $2,500 entered into by a
prime contractor in carrying out any contract for the
procurement of personal property and nonpersonal services
(including construction) for the United States. The
President shall implement the provisions of this section by
promulgating regulations within ninety days after the date
of enactment of this section.
(b) If any handicapped individual believes any
contractor has failed or refuses to comply with the
provisions of his contract with the United States, relating
to employment of handicapped individuals, such individual
may file a complaint with the Department of Labor. The
Department shall promptly investigate such complaint and
shall take such action thereon as the facts and
circumstances warrant, consistent with the terms of such
contract and the laws and regulations applicable thereto.
Pub. L. No. 93-112, 87 Stat. 355 (1973), 1973 U.S. CODE CONG. &
ADMIN. NEWS 409, 453-54. In determining whether Section 503 was
self-effectuating prior to promulgation of 20 C.F.R. Part 741 an
therefor applicable to Burlington's rejection of Mr. Brock,
statutory construction "must begin with the language employed by
Congress and the assumption that the ordinary meaning of that
language accurately expresses the legislative purpose." Park
'N Fly, Inc. v. Dollar Park and Fly, Inc., 469 U.S. 189, 194
(1985). See also Miller Music, Inc., v. Snyder, 469 U.S.
153, 164 (1985); Rose v. Long Island Railroad Pension
Plan, 828 F.2d 910, 919 (2d Cir. 1987); International
Union, United Automobile, Aerospace and Agricultural Implement
Workers of America v. Brock, 816 F.2d 761, 764 (D.C. Cir.
1987); United States v. Messina Builders and Contractors
Company, 801 F.2d 1029, 1032 (8th Cir. 1986).
[PAGE 8]
Section 503(a) lacks language which, by its own terms and
standing alone, directly required nondiscrimination and
affirmative action by Government contractors towards "qualified
handicapped individuals" on the date of enactment. Instead, it
mandated the development of such requirements through "a
[contract] provision requiring...affirmative action to employ and
advance in employment qualified handicapped individuals." The
precise requirement, i.e., the affirmative action contract
clause, was to be "implement[ed]...by promulgating regulations
within ninety days" after enactment.[3] Until such time as the
regulatory affirmative action contract clause was issued through
promulgation of 20 C.F.R. Part 741 and thereby made applicable to
contracts executed after October 11, 1974, see 20 C.F.R. §
741.54, the statutory language indicates that contractors, such
as Burlington, were not subject to Section 503 requirements,
since such requirements devolved from the statutory mandate of a
contract clause to be prescribed in the implementing regulations,
rather than from the statute itself.
Support for this view is found in the enforcement provision
of Section 503(b), which refers to compliance "with the
provisions of [the] contract with the United States, relating to
employment of handicapped individuals," rather than to compliance
with the statute itself. By its terms, Section 503(a) does not
contain "a [contract] provision," but provides guidance for the
development of such a provision. The short, ninety-day timeframe
contained in Section 503(a) for promulgating implementing
regulations is a further indication that Congress had not
established a self-implementing requirement or mandatory
contractual provision or clause in the statute itself. Thus, the
language of Section 503 indicates that implementing regulations
containing an affirmative action contractual provision were
necessary to make the nondiscrimination/affirmative action
objectives of the statute operational.[4] [5]
My conclusion is supported by the opinion in Wood v.
Diamond State Telephone Company, 440 F. Supp. 1003 (D. Del.
1977). In denying the existence of a private right of action
under Section 503, 29 U.S.C. § 793, the court stated:
Section 793 does not make discrimination against handicapped
persons in the private sector illegal. Rather, it requires
that an "affirmative action" covenant be inserted in all
government contracts which exceed the modest amount of
$2,500. Any contractor who chooses to enter such a contract
is put on notice by Congress that, in the event of a
violation, the Department of Labor will take "such
action...as the facts and circumstances [determined by the
Department] warrant, consistent with the terms of such
[PAGE 9]
contract and the laws and regulations applicable thereto".
This Congressional approach, in my judgment, suggests that
the duties imposed are to be duties assumed by contract and
that the exposure of the contractor is to be limited to the
terms of his contract and of any statutes and regulations
applicable thereto.
440 F. Supp. at 1009 (emphasis added) (brackets in original).
Reference to the requirement that an affirmative action "covenant
be inserted" in government contracts indicates that a standard
and uniform federal contract provision was intended to make the
requirements of Section 503(a) effective and binding on
contractors, as do the subsequent references to the "duties
assumed by contract" and the limitation of the contractor's
"exposure", i.e., legal obligations and responsibilities, "to the
terms of his contract."
OFCCP likens this case erroneously to United States v.
New Orleans Public Service, Inc. (NOPSI), 553 F.2d 459 (5th
Cir. 1977), vacated and remanded on other grounds, 436
U.S. 942 (1978),[6] where the court found contractual coverage
under the equal opportunity clause specified in Executive Order
No. 11,246 and the implementing regulations at 41 C.F.R. Part 60-
1, notwithstanding that the clause itself was not affixed to
NOPSI's utility service contracts with various Federal agencies
and installations and NOPSI denied coverage thereunder.
The principal issue today before us is whether a public
utility which, under a city permit, enjoys a local monopoly
in the sale of electricity and a near-monopoly in the sale
of natural gas and which sells such energy to the
Government in substantial amount can be required by the
Government to comply with the equal opportunity obligations
of Executive Order 11,246, even though the utility has not
agreed to be so bound. We hold that the Government can
compel such a utility to follow the order; however, we
disagree with the district court as to the appropriate
remedy.
553 F.2d at 461. Unlike Burlington, NOPSI did not
challenge the existence and applicability of a binding equal
employment requirement per se, but disputed whether the
requirement applied to it because it did not view its federal
contracts as truly voluntary.
Finally, OFCCP's position is inconsistent with the
requirement for specificity and clarity necessary to bind
prospective contractors and grantees to their obligations at the
time of award.
[PAGE 10]
Turning to Congress' power to legislate pursuant to the
spending power, our cases have long recognized that
Congress may fix the terms on which it shall disburse
federal money to the States. Unlike legislation enacted
under § 5, however, legislation enacted pursuant to the
spending power is much in the nature of a contract; in
return for federal funds, the States agree to comply with
federally imposed conditions. The legitimacy of Congress'
power to legislate under the spending power thus rests on
whether the State voluntarily and knowingly accepts the
terms of the "contract." There can, of course, be no
knowing acceptance if a State is unaware of the conditions
or is unable to ascertain what is expected of it.
Accordingly, if Congress intends to impose a condition on
the grant of federal moneys, it must do so unambiguously.
By insisting that Congress speak with a clear voice, we
enable the States to exercise their choice knowingly,
cognizant of the consequences of their participation.
Pennhurst State School and Hospital v. Halderman, 451 U.S.
1, 17 (1981)(citations and footnote omitted); Bennett v.
Kentucky Department of Education, 470 U.S. 656, 665-66
(1985); Rossetti Contracting Company, Inc. v. Brennan, 508
F.2d 1039, 1042-45 (7th Cir. 1975); Northeast Construction
Company v. Romney, 485 F.2d 752, 756-61 (D.C. Cir. 1973).
OFCCP equivocates on the specificity issue by stating:
After September of 1973, government contractors agreed to
imply an affirmative action clause [prohibiting
discrimination] in the contract prior to acceptance of the
right to do business with [the] government. Specific terms
are irrelevant. That the specific terms are provided by
later regulations should not and did not change the
contractors (sic] initial obligation specified in the Act.
Exceptions at 10 (emphasis added). Assuming arguendo,
that a prohibition against discrimination was sufficiently clear
and apparent by the statutory reference to "affirmative action",
see OFCCP's 1991 Brief at 13-15, the statute did not provide
contractors with the "requisite clarity" to put them on
sufficient notice that a nondiscrimination prohibition would be
applicable to contracts let after the date of enactment by
operation of the statute itself, rather than through the
subsequent insertion of a standard and formal affirmative action
clause by contracting agencies at a later date. Bennett v.
Kentucky Department of Education, 470 U.S. at 666.
Exception C
OFCCP argues that the ALJ erred in concluding that the
[PAGE 11]
regulations could not be applied retroactively to Burlington's
refusal to hire Mr. Brock in April, 1974. I agree with the ALJ
that: (1) this argument is inconsistent with OFCCP's position
that the nondiscrimination/affirmative action requirement was
self-implementing and enforceable even in the absence of
regulations, which argument I have rejected under Exception B,
supra; and (2) since Section 503 contains no wording from
which a retroactive application of the regulations may be
inferred, Congress intended no such retroactivity. ALJ S/J Order
at 5.
Retroactivity is not favored in the law. Thus,
congressional enactments and administrative rules will not
be construed to have retroactive effect unless their
language requires this result. By the same principle, a
statutory grant of legislative rulemaking authority will
not, as a general matter, be understood to encompass the
power to promulgate retroactive rules unless that power is
conveyed by Congress in express terms. Even where some
substantial justification for retroactive rulemaking is
presented, courts should be reluctant to find such
authority absent an express statutory grant.
Bowen v. Georgetown University Hospital, 488 U.S. 204,
208-09 (1988) (citations omitted) (emphasis added). See
Alaskan Arctic Gas Pipeline Company v. United States, 831
F.2d 1043, 1049-50 (Fed. Cir. 1987); United States v.
Gavrilovic, 551 F.2d 1099, 1103-05 (8th Cir. 1977).
Compare Section 503(a) with 26 U.S.C. § 7805(b)(1988)
(absence of retroactive language in former with specific
provision for retroactive regulations issued by the Secretary of
the Treasury in latter).
In any event, the regulations themselves do not provide for
retroactivity. Rather, they indicate only a prospective
application. 20 C.F.R. § 741.54; preamble at 39 Fed. Reg.
20,566. Further, retroactive application would be inconsistent
with the requirement for specificity and clarity necessary to
bind prospective contractors, discussed under Exception B,
supra.
Exception D
The ALJ stated that "Section 503(b)...gave the Department of
Labor the power to enforce compliance with the affirmative action
provision of a contract with the United States, but it did not
confer any broader powers." ALJ S/J Order at 3. OFCCP
interprets this as a possible rejection of remedial relief,
including backpay. I agree with Burlington that the ALJ's ruling
did not address the issue of remedial relief. Rather, the ALJ
was referring to the contractual basis of employer coverage and
OFCCP enforcement authority under Section 503. This decision
finds such contractual nexus lacking. Accordingly, neither the
ALJ's S/J Order nor this decision should be construed as
addressing remedies under Section 503.
ORDER
It is hereby ORDERED that OFCCP's Administrative Complaint
is DISMISSED.[7]
SO ORDERED.
JUDITH A. BROTMAN
Special Assistant to the Assistant Secretary for Employment
Standards
[ENDNOTES]
[1] By order dated November 19, 1991, the Assistant Secretary for
Employment Standards delegated to me all responsibility and
authority in this case.
[2] As indicated above, this case is limited to a single refusal
to hire in April 1974, before the effective date of the
regulations, notwithstanding that page 5 of OFCCP's Exceptions
refers to a "refusal to hire Stephen Brock in April, 1974 and
again in June, 1976." The reference to "June, 1976" is clearly
erroneous. See Plaintiff's Response to Defendant's
Interrogatories, Interrogatory No. 2, supra. The "June,
1976" date apparently is a garbled reference to OFCCP's assertion
of continuing violation based on the April 1974 rejection as
continuing through the effective date of the June 1974
regulations, with "1976" typed erroneously for "1974." Although
"a contractor has the obligation to take corrective action to
remedy the effects of its discriminatory practices[,] 41 CFR 60-
741.28," Exceptions at 5, Burlington had no duty to remedy its
April 1974 rejection of Mr. Brock in the absence of any legal
requirement, discussed below, prohibiting its conduct. OFCCP may
not expand its case beyond the April 1974 refusal to hire simply
by stating that the Administrative Complaint prayed for an order
enjoining Burlington from failing and refusing to comply with the
requirements of the statute and the regulations issued pursuant
thereto. See OFCCP's 1991 Brief at 26-27. Upon a finding
of violation, such an order would be fully consistent with the
narrow basis of this case.
[3] Section 503(a) refers to promulgation of regulations by the
President. On January 15, 1974, President Nixon issued Executive
Order No. 11,758, which delegated regulatory authority to the
Secretary of Labor. 3 C.F.R. 1973-1975 Comp. at 841. Issuance of
the regulations was delayed beyond the ninety-day period
contemplated by Section 503(a).
[4] Notwithstanding OFCCP's filing of this action, OFCCP once
shared this view on the necessity for implementing regulations to
make contractors subject to Section 503 requirements. The
preamble to 20 C.F.R. Part 741 stated, in part:
We find that notice of proposed rulemaking and delay in the
effective date would be contrary to the public interest in
view of the need for prompt implementation of the
affirmative action requirements contained in the
Rehabilitation Act, and accordingly such notice and delay
are not required under 5 U.S.C. 553(b) and (d). Therefore,
these regulations shall be effective on June 11, 1974.
39 Fed. Reg. 20,566, June 11, 1974.
[5] See also August 21, 1974, letter from the Senate Committee on
Labor and Public Welfare to Secretary of Labor Peter Brennan,
expressing concern with "the delay in the implementation of
section 503" and objections to the affirmative action clause
contained in 20 C.F.R. § 741.3. 1974 U.S. CODE CONG. &
ADMIN. NEWS, 6425-27.
[6] The extensive NOPSI litigation is traced in United
States v. New Orleans Public Service, Inc., 734 F.2d 226 (5th
Cir. 1984); United States v. New Orleans Public Service,
Inc., 723 F.2d 422 (5th Cir. 1984).
[7] In view of my disposition, it is unnecessary to address
Burlington's arguments asserting laches and lack of subject
matter jurisdiction because there was no allegation or evidence
that Mr. Brock applied for a position involving work on a Federal
contract.
