The opinion of the court was delivered by: DUFF
BRIAN BARNETT DUFF, UNITED STATES DISTRICT JUDGE.
Plaintiffs Roy Bennett and Wanda Cunningham represent a class of some 3500 persons who filed charges of employment discrimination pursuant to the Illinois Fair Employment Practices Act ("FEPA"), Ill.Rev.Stat. 1977 ch. 48, § para. 851 et seq., prior to September 16, 1979, and whose charges were administratively closed by the Illinois Fair Employment Practices Commission ("FEPC") in 1980. They seek a declaration that these closings violated their federal due process rights, and an injunction ordering defendant Joyce E. Tucker, Director of the Illinois Department of Human Rights (the successor to the FEPC), to reopen and process their cases. The plaintiffs have moved for summary judgment on the issue of liability. For the reasons set forth below, their motion will be denied.
Prior to 1978, the FEPA provided a comprehensive, but exclusively administrative, scheme for a person believing himself (or herself) the victim of employment discrimination to seek redress. Within 180 days of the alleged violation, he had to file a charge against his employer with the FEPC. Para. 858. The statute then instructed the FEPC to notify the employer of the charge, and to investigate. Id. If the Commission determined that the charge lacked substantial merit, the Commission was to dismiss the charge. Id. If the charge appeared meritorious, the Commission was to hold a conference with the complainant and the employer, and to seek conciliation. If conciliation failed, and if the FEPC still believed there to be substantial merit to the charge, the statute instructed the FEPC -- in the provision directly at issue here -- to issue a formal complaint against the employer within 180 days of the filing of the initial charge. Para. 858.01(a). The statute then provided for a formal adversary hearing before a commissioner or adjudicator, who would issue a recommendation either for dismissal of the complaint or for sanctions against the employer. Para. 858.01(c). The complainant was entitled to obtain review by the full FEPC of any unsatisfactory disposition of his charge or of the complaint. Para. 858.02(a). If still unsatisfied, the complainant could seek judicial review of the FEPC order. Para. 860.
There was one problem: the FEPC did not have the resources to process all of the charges, and then file complaints, within 180 days. On March 30, 1978, the Illinois Supreme Court held that the 180-day period set forth in § para. 858.01(a) for the FEPC to file a complaint after receiving a charge could serve as a jurisdictional bar to the FEPC filing such a complaint, at least where the employer was prejudiced as a result. Springfield-Sangamon County Regional Planning Comm'n v. Fair Employment Practices Commission, 71 Ill. 2d 61, 15 Ill. Dec. 623, 373 N.E.2d 1307 (1978). This ruling called into question the power of the FEPC to proceed on the thousands of charges on which it had not acted within 180 days. In response, the Illinois legislature amended FEPA.
The amended statute, effective September 16, 1978, extended the time for the FEPC to determine whether to file a complaint. New § para. 858(b) ordered the FEPC to hold a fact-finding conference within 120 days of the filing of a charge. New § para. 858(d), in turn, gave the Commission 180 days from the expiration of the 120-day period to file a complaint or to dismiss the charge.
The amended statute also provided a remedy for many complainants whose charges were placed in doubt by Springfield-Sangamon. Paragraph 858.01a provided that, with respect to any charge filed before March 30, 1978 "which within 180 days thereafter ha[d] not been the subject of a complaint issued by the [FEPC] or an order that no complaint be issued," the complainant had the right to seek relief directly in Illinois court.
In Board of Governors of States Colleges and Universities for Chicago State University v. Illinois Fair Employment Practices Commission, 78 Ill. 2d 143, 35 Ill. Dec. 524, 399 N.E.2d 590 (1979), the Illinois Supreme Court clarified Springfield-Sangamon, holding that the 180-day period in old § para. 858.01(a) was jurisdictional, and that accordingly the FEPC could not proceed on any charge if it had not filed a complaint within 180 days of the filing of the charge, irrespective of any prejudice to the employer. The complainant in that case then appealed to the United States Supreme Court on the grounds that this jurisdictional bar deprived him of property without due process of law by allowing the FEPC's delay to act as a bar to the complainant's statutorily-created rights.
While Board of Governors was on appeal, the Illinois legislature repealed the FEPA, replacing it, effective July 1, 1980, with the Illinois Human Rights Act ("IHRA"), Ill.Rev.Stat. ch. 68, para. 1-101 et seq. The new law terminated the FEPC, creating two agencies in its place: the Illinois Department of Human Rights, para. 7-101 et seq., and the Illinois Human Rights Commission, paras. 8-101 et seq. It also transferred all cases pending before the FEPC to the Department. Para. 9-102(a).
Under the IHRA, a complainant files his charge with the Department. Par. 7-102. The Department then proceeds in much the same way as had the FEPC, except that the new statute leaves to the Department's discretion whether to hold a fact-finding conference. If the Department finds no substantial evidence to support the charge, it is to issue an order dismissing the charge. If it finds substantial evidence, then within 300 days it is to file a complaint with the Commission. Par. 7-102(G)(1). A complainant may obtain review by the Commission of a decision by the Department to dismiss a charge. Par. 8-102(A). He may also obtain judicial review of "a final order of the Commission." Par. 8-111(A)(1). Finally, the new statute provides that, if the Department does not act within the 300 days set forth in para. 7-102(G)(1), then the complainant within 30 days may bring a complaint on his own to the Commission. Par. 7-10(G)(2).
To recapitulate, as of January 1, 1981, a complainant who had filed a charge prior to March 30, 1978, and whose charge had not been acted on within 180 days could proceed to state court under old § para. 858.01a; a complainant who had filed a charge between March 30, 1978 and September 16, 1978, and whose charge had not been acted on within 180 days could not proceed to court under the statute; a complainant who had filed a charge between September 16, 1978 and July 1, 1980, and whose charge had not been acted on within 300 days similarly lacked a statutory basis on which to proceed; and a complainant who had filed a charge after July 1, 1980, and whose charge had not been acted on within 300 days could pursue his charge through the administrative process and, if necessary, to court.
The Illinois Supreme Court, however, had a surprise in store. On November 13, 1981, it held that old para. 858.01a (new para. 9-102(B)(1)) violated the Illinois Constitution in providing a judicial remedy to complainants who had filed charges prior to March 30, 1978, and whose charges were then barred by administrative failure, but denying such a remedy to similarly-situated complainants who had filed charges after March 30, 1978. Wilson v. All-Steel, Inc., 87 Ill. 2d 28, 39-40, 56 Ill. Dec. 897, 428 N.E.2d 489 (1981). Because the Court also determined that the statutory provision violated the rights of employers by resurrecting previously-barred claims, id. at 40-41, the Court remedied the equal protection violation by striking down § para. 858.01a (rather than by holding that anyone could proceed under it). Thus, as of the end of 1981, any complainant whose case had been administratively closed by the Department in 1980 lacked a statutory basis for pursuing his charge.
Then came Logan v. Zimmerman, 455 U.S. 422, 71 L. Ed. 2d 265, 102 S. Ct. 1148 (1982). In late 1979, Logan had filed a charge with the FEPC. Pursuant to old § para. 858(b) -- a different provision than the one directly at issue in this case -- the FEPC was supposed to have convened a fact-finding conference within 120 days, but through inadvertence had scheduled it five days late. The Illinois Supreme Court, analogizing § para. 858(b) to § para. 858.01(a), determined that Board of Governors controlled, and that accordingly the 120-day period for holding a conference was jurisdictional. Zimmerman Brush Co. v. Fair Employment Practices Commission, 82 Ill. 2d 99, 44 Ill. Dec. 308, 411 N.E.2d 277 (1980). The Court also held that the IHRA could not be applied retroactively. Id. at 108-09. It thus held that Logan's charge was barred. Id. at 109.
This time, however, the United States Supreme Court did not sit still. On direct appeal, it first held that Logan's right "to use the FEPA's adjudicatory procedures" was a property right, and thus that the state could not deprive him of it without due process of law. Id. at 431. Noting that Logan, "unlike a claimant whose charge is dismissed on the merits for lack of evidence, [could not] obtain judicial review of the Commission action," id. at 434, the Court then held that the Illinois Supreme Court's construction of § para. 858(b) as a jurisdictional bar to FEPC action violated due process because it allowed for the destruction of Logan's cause of action on the basis alone that the FEPC had failed to act in time. Logan therefore was ...