Plaintiff chose to go to Court and filed the original complaint in this action on October 3, 1972.
The threshold issue is whether the 1972 Act is retroactive, i.e., whether the Act is applicable to acts of alleged discrimination in Federal Government employment which occurred prior to March 24, 1972, the effective date of the Act.
The key section is Section 717 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16 which was added by the 1972 Act. The 1972 Act is silent as to whether § 717 is to be given retroactive effect. For reasons set out hereinafter, the Court holds that the 1972 Act, insofar as it creates in Federal employees a new right to file a civil action against heads of Federal agencies
is not to be given retroactive effect.
Accordingly, the instant action must be dismissed for lack of subject matter jurisdiction.
The Supreme Court has stated that "a law is presumed, in the absence of clear expression to the contrary, to operate prospectively." Hassett v. Welch, 303 U.S. 303, 314, 82 L. Ed. 858, 58 S. Ct. 559 (1938). See also United States v. Union Pacific R.R., 98 U.S. 569, 606-607, 25 L. Ed. 143 (1878).
Recently, in January of this Term, the Supreme Court gave recognition to that principle in the case of Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S. Ct. 791, 39 L. Ed. 2d 52 (1974). LaFleur held that the mandatory provisions of the maternity termination rules promulgated by school boards in Cleveland, Ohio, and Chesterfield County, Virginia, violated the Due Process Clause of the Fourteenth Amendment. In so doing, it reversed Cohen v. Chesterfield County School Board, 474 F.2d 395 (4th Cir. 1973) (en banc) on the due process question. It did not, however, modify the premise upon which the Cohen Court had proceeded to eliminate a claim under Title VII of the Civil Rights Act of 1964, as amended by the 1972 Act.
In that respect the Cohen Court had stated:
. . . At the time of the proceedings below, however, state agencies and educational institutions were specifically exempted from the Act. 42 U.S.C. § 2000e(b); 42 U.S.C. § 2000e-1. Subsequent to oral argument these exemptions were repealed by the Equal Employment Opportunity Act of 1972, P.L. 92-261, signed by the President March 24, 1972 and effective immediately. Rules and practices of the defendant in effect when the defendant was exempt from the Equal Employment Opp. Act cannot be the basis for a violation of that Act. This opinion accordingly is limited to consideration of the rights and liabilities of the parties under the Equal Protection Clause of the Fourteenth Amendment. 474 F.2d at 396 n. 1 (emphasis added).