Northern District of Illinois, Eastern Division. Appeal from the United States District Court for the No. 74-C-1464 WILLIAM J. BAUER, Judge.
Fairchild, Chief Judge, Swygert, Circuit Judge, and William J. Campbell, Senior District Judge.*fn1
The question presented is whether the district court had jurisdiction over a federal employee's claim of racial discrimination that was pending administratively on March 24, 1972, the effective date of the Equal Employment Opportunity Act of 1972.*fn2
The plaintiff-appellant Kenneth Q. Adams, a black man and an employee of the Federal Highway Administration, United States Department of Transportation, brought an action in the district court pursuant to 42 U.S.C. § 2000e-5(f); 42 U.S.C. § 1981; 28 U.S.C. § 1331; 28 U.S.C. § 1361; 28 U.S.C. § 2201; and 5 U.S.C. § 704, alleging that defendants' refusal to promote him was racially discriminatory. The district court dismissed the action on jurisdictional grounds and this appeal followed.
In his complaint, the plaintiff alleged, in substance, the following facts. He has been employed by the Federal Highway Administration since 1966. In 1970 the agency assigned Adams and Clifford Wavrinek, a white man, to a newly created position: "Civil Rights Specialist, GS-13." While employed in this capacity, Adams performed substantially the same duties as Wavrinek, but unlike Wavrinek, was not paid at the GS-13 level. Instead, Adams remained at GS-12. In September 1971 Adams, pursuant to 5 C.F.R. § 713, filed a complaint with the Department of Transportation, charging that his failure to be promoted to GS-13 was the result of racial discrimination. His complaint was taken under review by the agency which made no findings concerning discrimination, but recommended that Adams receive promotion.
The promotion did not occur, however, and in 1972 Adams requested and received a hearing before the Civil Service Commission pursuant to 5 C.F.R. § 713.217. The examiner found no racial discrimination, but recommended in the final agency report that Adams be promoted to the GS-13 level.
The Federal Highway Administration again failed to promote the plaintiff. On February 20, 1973, however, Adams was notified by defendant James Frazier, Director of the Department of Transportation's Office of Civil Rights, that his case was to be reopened and the charges reviewed once more. After examination of the questions presented in Adams' complaint, Frazier concluded that the Federal Highway Administration's actions had involved racial discrimination. His report released on August 16, 1973 ordered the agency to promote Adams retroactively if Adams in fact had been performing GS-13 duties during the period in question. The agency, however, did not inform the plaintiff of Frazier's report and has to date refused to comply with its retroactivity provisions. While Adams has subsequently been promoted to GS-13, he has not received the backpay and privileges which he alleges were due him since November 1970.
In an effort to secure these benefits, Adams filed suit in the district court on May 29, 1974. His complaint alleges jurisdiction on numerous grounds*fn3 and seeks to recover all promotions, backpay, and job related benefits, as well as attorney's fees, and "such other relief as the Court deems just." After submitting its answer, the Government filed a motion to dismiss or in the alternative for summary judgment on grounds that the court lacked subject matter jurisdiction over the plaintiff's claim.
The district court granted the defendants' motion to dismiss. It held that those portions of the Equal Employment Opportunity Act of 1972 which extended the Title VII prohibitions against employment discrimination to the federal government*fn4 applied prospectively rather than retroactively. As a result, the district court concluded that it was without jurisdiction to hear a claim pending administratively on the act's effective date. The court also ruled that it lacked jurisdiction under the additional statutory bases alleged in the complaint.
We hold that the district court erred in concluding that section 717 of Title VII (42 U.S.C. § 2000e-16, et seq.) did not apply retroactively. We are convinced that the district court had jurisdiction to entertain Adams' complaint. We therefore reverse and remand for further proceedings.
Before discussing the merits of the issue, we must address the possibility that this case has been mooted by a recent memorandum filed by the United States Solicitor General.*fn5 In response to a petition for rehearing of the Supreme Court's denial of certiorari in Place v. Weinberger,*fn6 the Solicitor General stated that he had now concluded that section 717 applied to all cases pending administratively on the act's effective date, and represented to the court that the Government would refrain from asserting any contrary views in all pending and future cases. Despite the Solicitor General's position, we nevertheless decide the issue presented. The ...