B-175954, SEP 26, 1972

B-175954: Sep 26, 1972

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SINCE ALL SUCH CLAIMS IN THE COURTS HAVE BEEN STIPULATED FOR PAYMENT BY THE DEPARTMENT OF JUSTICE. PARKER: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 9. IN THE FORM OF AN OVERSEAS (TROPICAL) DIFFERENTIAL THAT WAS PAID TO UNMARRIED EMPLOYEES AND TO MARRIED MALE EMPLOYEES OF THE GOVERNMENT DURING THE PERIOD IN QUESTION. THIS CLAIM IS REPRESENTATIVE OF MORE THAN 400 OTHER CLAIMS NOW PENDING WITH THE AGENCY THAT PRESENT THE SAME QUESTION OF LAW. THE FACTS ARE NOT IN DISPUTE IN ANY OF THESE CASES. THE RECORD INDICATES THAT THIS AND THE OTHER SIMILAR CLAIMS ARE BASED UPON THE CASES IN THE U. THE PLAINTIFFS (WHO ARE EMPLOYEES OF THE CANAL ZONE GOVERNMENT OR OF THE OTHER NONCORPORATE FEDERAL AGENCIES IN THE CANAL ZONE) HAVE SUED FOR AWARD OF THE TROPICAL DIFFERENTIAL UNDER SECTION 146 OF TITLE 2.

B-175954, SEP 26, 1972

CIVILIAN EMPLOYEES - CANAL ZONE - OVERSEAS TROPICAL DIFFERENTIAL - MARRIED WOMEN DECISION ALLOWING THE CLAIM OF PHYLLIS MAE PESQUEIRA, AS REPRESENTATIVE OF 400 OTHER CLAIMS OF FEMALE, MARRIED EMPLOYEES OF THE CANAL ZONE GOVERNMENT, FOR ADDITIONAL COMPENSATION FROM SEPTEMBER 7, 1965, TO JANUARY 9, 1971, IN THE FORM OF A TROPICAL DIFFERENTIAL. SINCE THE DEPARTMENT OF JUSTICE HAS FOUND THE DIFFERENTIAL REGULATION ON ITS FACE TO BE DISCRIMINATORY AGAINST WOMEN ON THE BASIS OF SEX, AND SINCE ALL SUCH CLAIMS IN THE COURTS HAVE BEEN STIPULATED FOR PAYMENT BY THE DEPARTMENT OF JUSTICE, PAYMENT OF MRS. PESQUEIRA'S CLAIM SHOULD BE MADE ON THE BASIS OF THE METHOD USED IN HENDRICKS V. UNITED STATES, CT. CL. NO. 202-68.

TO GOVERNOR DAVID S. PARKER:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 9, 1972, REQUESTING OUR DECISION CONCERNING THE PROPRIETY OF PAYMENT OF A CLAIM FROM MRS. PHYLLIS MAE PESQUEIRA, AN EMPLOYEE OF THE CANAL ZONE GOVERNMENT, FOR ADDITIONAL COMPENSATION FROM SEPTEMBER 7, 1965, THROUGH JANUARY 9, 1971, IN THE FORM OF AN OVERSEAS (TROPICAL) DIFFERENTIAL THAT WAS PAID TO UNMARRIED EMPLOYEES AND TO MARRIED MALE EMPLOYEES OF THE GOVERNMENT DURING THE PERIOD IN QUESTION. THIS CLAIM IS REPRESENTATIVE OF MORE THAN 400 OTHER CLAIMS NOW PENDING WITH THE AGENCY THAT PRESENT THE SAME QUESTION OF LAW. THE FACTS ARE NOT IN DISPUTE IN ANY OF THESE CASES.

THE RECORD INDICATES THAT THIS AND THE OTHER SIMILAR CLAIMS ARE BASED UPON THE CASES IN THE U. S. COURT OF CLAIMS THAT INCLUDE HENDRICKS V. UNITED STATES, NO. 202-68; ANDERSON, ET AL. V. UNITED STATES, NO. 206 68; ACHESON, ET AL. V. UNITED STATES, NO. 221-68; ACOSTA, ET AL. V. UNITED STATES, NO. 346-70; BURTON, ET AL. V. UNITED STATES, NO. 347-70; AND BIGGS, ET AL. V. UNITED STATES, NO. 29-71. IN THE LITIGATION CITED, AND IN OTHER PENDING ACTIONS, THE PLAINTIFFS (WHO ARE EMPLOYEES OF THE CANAL ZONE GOVERNMENT OR OF THE OTHER NONCORPORATE FEDERAL AGENCIES IN THE CANAL ZONE) HAVE SUED FOR AWARD OF THE TROPICAL DIFFERENTIAL UNDER SECTION 146 OF TITLE 2, CANAL ZONE CODE, 76A STAT. 17, AND THE RELATED CANAL ZONE COMPENSATION REGULATIONS, ISSUED BY THE SECRETARY OF ARMY AND PUBLISHED AT 35 CFR 253.135. THE THEORY OF THE SUITS IS THAT SECTION 253.135 OF THE REGULATIONS UNLAWFULLY DISCRIMINATED AGAINST THE MARRIED, FEMALE EMPLOYEE BECAUSE IT PROVIDED THAT SUCH A PERSON WAS INELIGIBLE TO RECEIVE THE DIFFERENTIAL UNLESS SHE WAS LEGALLY SEPARATED FROM HER HUSBAND OR HER SPOUSE WAS INCAPABLE OF SELF-SUPPORT OR WAS "51% OR MORE DEPENDENT UPON HER FOR HIS SUPPORT."

IN MARCH 1970 THE DEPARTMENT OF JUSTICE ADVISED THE DEPARTMENTS OF DEFENSE AND ARMY AND YOUR OFFICE THAT, IN THE OPINION OF THE CIVIL RIGHTS DIVISION, THE DIFFERENTIAL REGULATION WAS ON ITS FACE DISCRIMINATORY AGAINST WOMEN ON THE BASIS OF SEX. FOR THAT REASON, IT WAS STATED, DEFENSE OF THE SUITS BY THE GOVERNMENT ON THE MERITS WOULD BE QUESTIONABLE AS A MATTER OF POLICY AND WOULD CONFLICT WITH ITS POSITION ON SEX DISCRIMINATION IN PRIVATE EMPLOYMENT AS EXPRESSED IN AN AMICUS CURIAE BRIEF SUBMITTED BY THE UNITED STATES TO THE SUPREME COURT IN PHILLIPS V. MARTIN MARIETTA CORP., IN WHICH CERTIORARI WAS GRANTED ON MARCH 2, 1970. SUBSEQUENTLY, THE DEPARTMENTS OF DEFENSE AND ARMY AND YOUR OFFICE ADVISED THE DEPARTMENT OF JUSTICE THAT THEY BELIEVED THE REGULATION HAD NOT BEEN DISCRIMINATORILY APPLIED ON THE BASIS OF SEX AND THAT DEFENSE AGAINST THE CLAIMS ON THE MERITS WAS WHOLLY JUSTIFIED.

THE CANAL ZONE GOVERNMENT ALSO ARGUED THAT THE SPECIFIC ISSUE INVOLVED IN THESE CASES HAD BEEN DECIDED ADVERSELY TO THE PLAINTIFFS IN THE CASE OF LEBER V. C.Z. CENTRAL LABOR UNION, 383 F.2D 110 (5TH CIR. 1967), CERT. DENIED 389 U.S. 1056 (1968). THE APPELLATE COURT, REVERSING THE LOWER COURT, HELD THAT IT HAD "ERRED IN HOLDING INVALID THE REGULATION EXCLUDING CERTAIN MARRIED WOMEN AND CHILDREN FROM RECEIVING THE DIFFERENTIAL." THE DEPARTMENT OF JUSTICE, HOWEVER, CONCLUDED THAT THE COURT OF APPEALS HAD NOT HELD THAT THE REGULATION MET THE TEST OF REASONABLENESS.

AFTER FURTHER CORRESPONDENCE AND DISCUSSIONS, THE DEPARTMENT OF JUSTICE RECOMMENDED THAT PAYMENT BE MADE TO THE CLAIMANTS FOR THE PERIOD OF EMPLOYMENT EXTENDING UNTIL JANUARY 10, 1971, ON WHICH DATE THE REGULATION INVOLVED HAD BEEN CHANGED TO ELIMINATE THE PROVISIONS THAT IT CONSIDERED TO BE DISCRIMINATORY. SUBSEQUENTLY, THE DEPARTMENT OF JUSTICE REACHED AGREEMENT WITH COUNSEL FOR THE PLAINTIFFS TO FILE A "STIPULATION FOR ENTRY OF JUDGMENT" IN THE HENDRICKS AND CERTAIN OTHER PENDING CASES. UNDERSTAND THAT STIPULATIONS HAVE BEEN MADE IN ALL CASES OF THIS TYPE FILED IN THE COURT OF CLAIMS. PURSUANT TO SUCH STIPULATIONS SEVERAL AGREED JUDGMENTS SPECIFYING THE AMOUNTS DUE INDIVIDUAL PARTIES PLAINTIFF WERE ENTERED AND PAID. JUDGMENTS FOR THE REMAINING PLAINTIFFS APPARENTLY WILL BE ENTERED WHEN THE PARTIES AGREE UPON THE SPECIFIC AMOUNTS DUE.

SEVERAL CASES INVOLVING THE SAME REGULATION AND SEEKING PAYMENT OF THE TROPICAL DIFFERENTIAL BY EMPLOYEES OF THE PANAMA CANAL COMPANY HAVE BEEN FILED IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA. STIPULATIONS FOR ENTRY OF JUDGMENT SIMILAR TO THOSE FILED IN THE COURT OF CLAIMS HAVE BEEN FILED IN THESE CASES. WE UNDERSTAND THAT THERE IS A QUESTION CONCERNING THE APPLICATION OF THE STATUTE OF LIMITATIONS PERTAINING TO THE PANAMA CANAL COMPANY AND THAT AGREED JUDGMENTS FOR THE INDIVIDUAL PLAINTIFFS WILL BE ENTERED WHEN THIS QUESTION IS RESOLVED.

THE JUDGMENTS WHICH HAVE BEEN RENDERED IN THE CASES CITED ABOVE CONTAIN NO FINDING OF FACTS AND NO INTERPRETATION OF THE REGULATION INVOLVED SINCE THEY WERE MADE PURSUANT TO STIPULATIONS. THE STIPULATIONS WERE MADE FOR THE PURPOSE OF PAYING THE PLAINTIFFS A TROPICAL DIFFERENTIAL FOR THE PERIOD PRIOR TO JANUARY 10, 1971, SO THAT THE PLAINTIFFS' PETITIONS MIGHT THEN, AT LEAST IN PART, BE DISMISSED WITH PREJUDICE ON THE BASIS OF PAYMENT.

THE HOLDING IN THE LEBER CASE, ABOVE, COULD BE CONSTRUED, AS YOU POINTED OUT, THAT THE REGULATION INVOLVED WAS REASONABLE AND THAT PAYMENT OF THE DIFFERENTIAL TO MARRIED WOMEN WAS PRECLUDED. HOWEVER, THE RECORD SHOWS THAT THE DEPARTMENT OF JUSTICE HAS CONCLUDED THAT THE COURT DID NOT RULE ON THE REASONABLENESS OF THE REGULATION AND HAS DECIDED THAT THE REGULATION DISCRIMINATED AGAINST MARRIED WOMEN SO AS TO PRECLUDE ENTRY OF A COURT DEFENSE BASED ON SUCH REGULATION. THIS CONCLUSION WAS FOUNDED ON AN ANALYSIS THAT THE REGULATION WAS DISCRIMINATORY ON ITS FACE AND DENIED THE DIFFERENTIAL TO MARRIED WOMEN WITHOUT REGARD TO THE RECRUITMENT AND RETENTION INCENTIVE WHICH IS THE PURPOSE OF THE REGULATION. IN THIS CONNECTION YOU STATE THAT THE DEPARTMENT OF JUSTICE WILL DEFEND AGAINST COURT CASES ARISING UNDER THE CURRENT REGULATION WHICH HAS BEEN REVISED TO GENERALLY DENY THE DIFFERENTIAL TO PERSONS WHOSE PRESENCE IN THE CANAL ZONE IS NOT ATTRIBUTABLE PRIMARILY TO THEIR EMPLOYMENT. WE ALSO NOTE THAT THE DEPARTMENT SUCCESSFULLY ENTERED A DEFENSE IN THE CASE OF FRONTIERO V. LAIRD, 341 F. SUPP. 201 (1972). THAT CASE INVOLVED THE PROVISIONS OF VARIOUS STATUTES WHICH ALLEGEDLY DISCRIMINATED AGAINST MARRIED WOMEN OF THE UNIFORMED SERVICES SINCE THEY WERE REQUIRED TO PROVE ACTUAL DEPENDENCY OF THEIR SPOUSES IN ORDER TO ESTABLISH ELIGIBILITY FOR QUARTERS ALLOWANCES AND MEDICAL BENEFITS FOR SUCH SPOUSES. THE COURT FOUND A REASONABLE RELATIONSHIP FOR THE DIFFERENT METHODS OF ESTABLISHING DEPENDENCY ON THE BASIS OF ADMINISTRATIVE AND ECONOMIC CONVENIENCE.

WE UNDERSTAND IT IS THE POSITION OF THE DEPARTMENT OF JUSTICE THAT THE FRONTIERO CASE IS DISTINGUISHABLE FROM THE INSTANT CASE ON THE BASIS THAT THE FORMER INVOLVES A STATUTORY PROVISION WHEREAS THE LATTER CONCERNS A REGULATION IN CONFLICT WITH AN EXECUTIVE ORDER PROHIBITING DISCRIMINATION. WE HAVE DOUBTS CONCERNING THE PROPRIETY OF THE POSITION OF THE DEPARTMENT OF JUSTICE IN THE MATTER. HOWEVER, IT APPEARS THAT THE CLAIMS FOR TROPICAL DIFFERENTIAL NOW PENDING OR HEREAFTER FILED IN THE COURTS WILL CONTINUE TO BE STIPULATED FOR PAYMENT WITHOUT ANY DEFENSE ON THE MERITS.

IN VIEW OF THE ABOVE CIRCUMSTANCES THE CLAIM OF MRS. PESQUEIRA, RETURNED HEREWITH, AND SIMILAR CLAIMS MAY BE PROCESSED ADMINISTRATIVELY. THE COMPUTATION OF THE AMOUNT DUE EACH CLAIMANT SHOULD BE DETERMINED ON THE BASIS OF THE METHOD USED IN THE HENDRICKS CASE.