eleven (in the case of Scott) and three (in the case of Martin) years before the respective complaints were filed. The Civil Service Commission's Board of Appeals and Review affirmed the Agency action and notified plaintiffs of their right to file a complaint in the U.S. District Court within thirty days.
A. DEFENDANTS' MOTION TO DISMISS
The government argues that the Court lacks jurisdiction to hear this case (1) since the EEO Act of 1972 does not apply retroactively to allegations of discrimination which occurred prior to the effective date of the Act and (2) since plaintiffs failed to name the Commissioners of the CSC as defendants.
The first argument is without merit. It is now well settled, at least in this Circuit, that the EEO Act of 1972 is retroactive to apply to alleged acts of discrimination which occurred prior to the effective date of the Act and pending administratively on or after the effective date of the Act. Grubbs v. Butz, 169 U.S. App. D.C. 82, 514 F.2d 1323 (1975); Womack v. Lynn, 164 U.S. App. D.C. 198, 504 F.2d 267 (1974). Since plaintiffs both filed their administrative complaints alleging discrimination on July 3, 1972, which was subsequent to the effective date of the Act, this Court properly has jurisdiction.
Defendants' second argument also falters. Defendants claim that plaintiffs' failure to name the individual Commissioners of the CSC as defendants deprives the Court of jurisdiction. The District of Columbia Circuit has also addressed this question, ruling in Hackley v. Roudebush, 171 U.S. App. D.C. 376, 520 F.2d 108 (1975) that "The only proper defendant in a Title VII suit . . . is the 'head of the department, agency, or unit' in which the allegedly discriminatory acts transpired." 520 F.2d at 115. Since plaintiffs have named the Secretary of the Department of Health Education and Welfare, the head of the department of the government in which the alleged acts of discrimination took place, as a defendant in this case, the proper defendant is before the Court and the Commissioners of the CSC need not be joined or added as parties for this Court to have jurisdiction.
Defendants' motion to dismiss should be denied.
B. CROSS-MOTIONS FOR SUMMARY JUDGMENT
Defendants contend that they are entitled to summary judgment since the final decision of the Civil Service Commission, denying plaintiffs' claims as untimely filed and finding that no basis existed for granting a waiver of the time limits, was proper and had a rational basis.
In support of this position, defendants cite the applicable statute of limitations for bringing complaints in EEO cases. The Civil Service Commission Regulations, 5 C.F.R. 713.214(a)(1), provide that:
[The] agency may accept the complaint for processing in accordance with this subject only if --