plaintiff's claim, this action was not timely filed in the U.S. District Court.
In the original motion to dismiss, defendants contended that the Court lacks jurisdiction to hear this case under the Equal Employment Opportunity Act of 1972, Section 717(c), since that act was not retroactive and the alleged acts of discrimination occurred prior to the effective date of the Act. However, as defendants admit in their supplemental memorandum in support of their motion to dismiss, it is now settled, at least in this circuit, that the EEO Act of 1972, Section 717(c) applies retroactively to any case in which proceedings were pending, either administratively or judicially, as of the effective date of the Act. Grubbs v. Butz, 169 U.S. App. D.C. 82, 514 F.2d 1323 (D.C. Cir. 1975); Womack v. Lynn, 164 U.S. App. D.C. 198, 504 F.2d 267 (Cir. 1974).
Since, in this case, plaintiff filed a complaint of racial discrimination with the proper authority within the agency on March 1, 1972 and the matter was pending as of the effective date of the Act, March 24, 1972, this Court would properly have jurisdiction under the EEO Act of 1972.
Defendants also argue that the Court lacks jurisdiction since plaintiff failed to file her complaint in the district court within the proper time required for such action, that is, within thirty days of the final agency decision, when she was given proper and timely notice to do so, as is required by the EEP Act of 1972, Section 717(c).
This case is very similar to Brown v. General Services Administration, 507 F.2d 1300 (2d Cir. 1974). Upon facts substantially the same as in this case, the Court of Appeals for the Second Circuit held that the EEO Act of 1972 granted jurisdiction to plaintiff's claim since his complaint was pending on the effective date of the Act. The Court went on to say that, since the Act applied to plaintiff's case, the requirement of the Act that the plaintiff file a complaint within thirty days of the notice of final administrative decision had to be complied with. The failure of the plaintiff to file within the time limit was fatal to his case since he received proper notice of the requirement.
Two other cases, both from this District Court, also hold that the Court lacks subject matter jurisdiction to hear a case in which the plaintiff has failed to comply with the thirty-day filing provision, Roney v. Saxbe, 380 F. Supp. 1191 (D.C.D.C. 1974) (Corcoran, J.) and Kurylas v. U.S. Dept. of Agriculture, 373 F. Supp. 1072 (D.C.D.C. 1974) (Pratt, J.) aff'd 169 U.S. App. D.C. 58, 514 F.2d 894 (D.C. Cir. 1975).
In her opposition to the defendants' motion to dismiss in the instant case, plaintiff does not contest either the retroactivity of the EEO Act of 1972 or the application of the time limitation under the Act. Rather, plaintiff asserts that she proceeds upon a completely different theory of jurisdiction to gain access to the Court, stating that the EEO Act of 1972 is not the exclusive method of obtaining jurisdiction and thereby rendering the Act's time limitation inapplicable. Plaintiff cites the Administrative Procedure Act, 5 U.S.C. §§ 554, 556, 557 and 702; the due process clause of the Fifth Amendment; the Tucker Act, 28 U.S.C. 1346, and the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202, as bases for jurisdiction alternative to the EEO Act of 1972.
Again, Brown v. General Services Administration, supra, has addressed this argument. In Brown counsel for the plaintiff also argued that the Act of 1972 need not apply since the Act is not exclusive, and that the plaintiff could proceed under an independent, separate theory of jurisdiction which did not include the thirty-day filing requirement.
The Court dismissed this argument, holding that the Act is, in effect, the exclusive basis for jurisdiction in that it constitutes a waiver of sovereign immunity which must be strictly construed. Congress, in passing the Act, gave consent for the type of action set forth in Section 717(c) and conditioned this consent upon compliance to the filing requirement. The Court stated:
Statutes waiving sovereign immunity are to be strictly construed . . . We cannot ignore the explicit condition imposed by Congress on a suit such as the instant one. It would wholly frustrate Congressional intent to hold that a plaintiff could evade the 30 day filing requirement 'by the simple expedient of putting a different label on [his] pleadings. ' Preiser v. Rodriguez, 411 U.S. 475, 489-490, 36 L. Ed. 2d 439, 93 S. Ct. 1827 (1973).
. . . . We find no injustice in requiring compliance with the 30 day filing requirement. On the contrary, to permit suit without compliance . . . would effectively undermine the strong public policy that requires strict construction of a statute which waives sovereign immunity. (supra, at 1307)