The opinion of the court was delivered by: OBERDORFER
Having carefully reviewed the arguments of both sides, the Court has determined (1) that the dismissal of Count II should not be disturbed; (2) that plaintiffs should be permitted to add the United States as a party defendant; and (3) that exclusive jurisdiction over the damage claims of those class members alleging damages in excess of $10,000 lies in the Court of Claims. By accompanying Order, the Court will offer plaintiffs the opportunity to choose between transferring the damage claims of all class members to the Court of Claims pursuant to 28 U.S.C. § 1406 or bifurcating the class into two groups: those with damage claims not in excess of $10,000 and those with claims in excess of $10,000. This Court would retain jurisdiction over the claims of the former class pursuant to 28 U.S.C. § 1346(a)(2).
By Memorandum and Order of February 15, 1980, the Court dismissed Count II of the amended complaint, which charged that the minority and female qualifying programs of the New Special Agent Selection System ("NSASS") discriminated against plaintiffs in violation of Title VII and the fifth amendment. The Court determined that the plaintiffs could obtain complete relief from adjudication of Count I and dismissed Count II rather than rach the difficult factual and constitutional issues it raised.
By their motion to alter or amend the judgment, plaintiffs seek reconsideration of this action. Plaintiffs maintain that relief under Count II would not be co-extensive with that contemplated by Count I for violation of an implied contract. In particular, plaintiffs note that the NSASS followed the abrogation of their contractual preference that was the subject of Count I, and thus covered a different time period, and that Title VII permits the award of attorney's fees, which might not be available for Count I.
Assuming arguendo that the relief for the two counts is not substantially the same, Count II must nevertheless be dismissed on the grounds that plaintiffs failed to exhaust their administrative remedies. It is clear initially that Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16 (1976), constitutes the exclusive remedy for claims of employment discrimination by federal employees subject to its protection. Davis v. Passman, 442 U.S. 228 (1979); Brown v. GSA, 425 U.S. 820 (1976). It is equally clear that claims under Title VII may not be brought in federal court where the plaintiffs have failed properly to raise their contentions at the administrative level. Brown v. GSA, 425 U.S. at 832; Hackley v. Roudebush, 171 U.S. App. D.C. 376, 520 F.2d 108 (1975).
Plaintiffs claim that on several occasions they complained informally about the effects of the NSASS and that defendants have refused to provide any relief. Plaintiffs do not seriously suggest that such complaints are an acceptable substitute for the formal procedures provided in Title VII. Nor can plaintiff maintain that such inquiries demonstrate the "futility" of administrative recourse so as to justify their failure to exhaust. The law in our circuit is clear that the mere assertion that the administrative recourse is futile will not relieve a plaintiff of the duty to exhaust, particularly where the defendant is a federal agency and there exist formal avenues for administrative redress. League of United Latin American Citizens v. Hampton, 163 U.S. App. D.C. 283, 501 F.2d 843 (1974).
Plaintiffs suggest that this Court exercise ancillary jurisdiction over the Title VII claims. Such an exercise of jurisdiction would be inappropriate, even if feasible. Adjudication of Count II would involve substantial factfinding and would require the commitment of substantial resources by the Court and the parties. Moreover, as plaintiffs now maintain, the facts surrounding Count II arise later than and are not integrally related to those in Count I, which has already been adjudicated. Finally, in view of the Court's disposition of Count I, adjudication of Count II is not necessary to protect the integrity of the main proceeding. Under these circumstances, the exercise of ancillary jurisdiction would be improper. See Morrow v. District of Columbia, 135 U.S. App. D.C. 160, 417 F.2d 728, 740 (1969).
In view of the foregoing, the Court need not address and does not decide the question it raised in oral argument that the issues in Count II have not been raised in sufficient adversarial context to permit a decision.
III. Count I: Jurisdiction
With the entry of the declaratory judgment and the denial of injunctive relief on February 15, 1980, this action became one essentially for money damages against the United States. Accordingly, it is necessary to address the issues posed by the overlap of jurisdiction between this Court and the Court of Claims under the Tucker Act, 28 U.S.C. § 1346(a)(2) and 1491, which ...