Place v. Weinberger Petition for Rehearing
Public Court Documents
October 7, 1974

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Brief Collection, LDF Court Filings. Place v. Weinberger Petition for Rehearing, 1974. 7f0dca62-c19a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/f171d5a9-15ad-4fcb-862d-cec5ff1b8be4/place-v-weinberger-petition-for-rehearing. Accessed April 27, 2025.
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In the jiuprm? ©curt nf tl|p llttUpfc States O c t o b e r T e r m , 1974 No. 74-116 D i a n e M. P l a c e , Petitioner, v. C a s p a r W e in b e r g e r , et al. ON PETITION FOR A W RIT OF CERTIORARI TO TH E U N ITED STATES COURT OF APPEALS FOR TH E SIXTH CIRCUIT PETITION FOR REHEARING J a c k G r e e n b e r g J a m e s M. N a b r it , III B a r r y G o l d s t e in E r ic S c h n a p p e r 10 Columbus Circle New York, New York 10019 I r v i n g S t a h l J a m e s P . G r e g o r y 1850 Guardian Building Detroit, Michigan 48226 Counsel for Petitioner In the Supreme dmtrt nf % luitpfi States O c t o b e r T e r m , 1974 No. 74-116 D i a n e M. P l a c e , v. Petitioner, C a s p a r W e in b e r g e r , et al. ON PETITION EOR A W RIT OF CERTIORARI TO TH E U N ITED STATES COURT OF APPEALS FOR TH E SIXTH CIRCUIT PETITION FOR REHEARING The Petitioner herein respectfully moves this Court for an order vacating its denial of the Petition for Writ of Certiorari, entered on November 25, 1974, and granting the petition. This petition for a rehearing is founded upon the decision of the Second Circuit Court of Appeals in Brown v. General Services Administration (No. 73-2628) (November 21, 1974), pp. la-17a, Petition For Writ of Certiorari filed December , 1974, No. 74- } 1 Counsel were notified by telephone of the decision in Brown in the late afternoon of Thursday, November 21, 1974, and ob tained a copy of the decision in the afternoon of Friday, Novem ber 22, 1974. The instant Petition For W rit of Certiorari was considered at the conference of Friday, November 22, 1974, the result of which was announced on Monday, November 25, 1974. Under the circumstances Petitioner, of course, had no opportunity to bring this development to the attention of the Court prior to the denial of Certiorari. 2 The instant case presents the question, inter alia, whether the new remedies of section 717 of the 1964 Civil Rights Act, as amended, apply to discrimination occurring prior to March 24, 1972, the date on which that section became law. Section 717, 42 U.S.C. § 2000e-16, authorizes the dis trict courts to provide to federal employees aggrieved by discrimination on the basis of race or sex the same rem edies available to employees of private employers. There is a conflict among the courts of appeals on this question; three circuits have concluded that section 717 is applic able to discrimination occurring before March 24, 1972, and one circuit, in the instant case, has concluded that it is not. On November 25, 1974, this Court denied the Petition For Writ of Certiorari, Justices Stewart, White and Douglas voting to grant the writ. Whenever a fed eral employee has sought to assert federal jurisdiction under section 717 to remedy such discrimination, the gov ernment, in three circuits and at least twenty-four dis trict courts, including the instant case, has opposed judicial scrutiny of such claims of discrimination by arguing that section 717 does not apply to discrimination occurring be fore March 24, 1972. In Brown v. General Services Administration the gov ernment successfully advanced the opposite contention in preventing judicial scrutiny of Mr. Brown’s claims; in the Second Circuit the government contended that sec tion 717 does apply to discrimination occurring before March 24, 1972. The government there urged that sec tion 717 had repealed a variety of statutes on which plain tiff founded his cause of action. Since the discrimination of which plaintiff complained had occurred prior to March 24, 1972, the government argued that section 717, and thus the repeal, applied to such discrimination occurring before the effective date of the section 717. 3 The Second Circuit, in holding at the instance of the government that section 717 applied to discrimination be fore its effective date, expressly rejected the contrary conclusion reached by the Sixth Circuit, also at the urging of the government, in this very case. In light of Bradley, we cannot agree with the Sixth Circuit’s holding in Place v. Weinberger, supra, that Congress by its silence as to all sections of the Act except one intended the other sections to have pro spective application only.2 At oral argument in Brown, the government expressly relied on Roger v. Ball, 497 F.2d 702 (4th Cir. 1974) and urged that this Court’s decision in Bradley v. School Board of the City of Richmond, 40 L.Ed 2d 476 (1974), dictated that section 717 be applied to discrimination occurring prior to March 24, 1974. In the instant case petitioner advanced the identical argument3 but the government re fused to acknowledge its correctness. That the government advanced inconsistent positions in these two cases was not the result of inadvertence. In Brown the government, in stating its assumption that sec tion 717 applied to discrimination occurring before March 24, 1972, conceded the government “has argued differently” in other cases.4 * The Solicitor General was also made aware of the inconsistent position being taken by the government in different circuits.6 Had the Solicitor Gen eral, in response to the Petition in this case, taken a definitive position as to whether or not the government maintained the decision of the Sixth Circuit was correct, 2 P. 11a. 3 Petition for W rit of Certiorari, No. 74-116, pp. 17-19. 4 Brief for Defendants-Appellees No. 73-2628, 2d Cir., p. 6 n. 6 See Petition for W rit of Certiorari, p. 19. 4 uniformity in the position of the government in other case might have resulted. Instead, the Solicitor opposed Certiorari solely on the ground that the decision below was unimportant, thus avoiding committing the govern ment to one position or the other.6 It has long been a precept of Anglo-Saxon jurisprudence, at least since Lord Mansfield’s opinion in Montefiori v. Montefiori, 25 K.B. 203 (1762), that a party must not be permitted to advance inconsistent positions in judicial proceedings. See, e.g. Story’s Equity Jurisprudence, 14th ed., § 2020.7 The rule prevents a party from encouraging the growth of conflicts among the courts by seeking to win two inconsistent decisions where consistency would preclude him from winning more than one. “ Such use of inconsistent positions would most flagrantly exemplify that playing ‘fast and loose with the courts’ which has been emphasized as an evil the courts will not tolerate. . . . And this is more than an affront to judicial dignity. For intentional self-contradiction is being used as a means of obtaining unfair advantage in a forum provided for suitors seeking justice.” Scarano v. Central R. Co. of New Jersey, 203 F.2d 510, 513 (3d Cir. 1953). This Court has applied that principle in a variety of cases. In Callanan Road Co. v. United States, 345 U.S. 507 (1953), this Court refused to permit the holder of a certificate of convenience and necessity to collaterally attack the provisions of its certificate. The Court noted that, in obtaining its certificate, the holder had earlier 6 Memorandum for the Respondents in Opposition, pp. 2-4. 7 See also IB Moore’s Federal Practice, jf 0 .4 0 5 [8 ]; Note, 59 Harv. L.Rev. 1132 (1 9 4 6 ): Note, “ Estoppel Against Inconsistent Positions in Judicial Proceedings” , 9 Brooklyn L. Rev. 245 (1940); Note, 1 Tenn. L.Rev. 1 (1922). The principle was expressed by Lord Kenyon in the maxim, “Allegans contraria non est audiendus” . 5 argued before the Interstate Commerce Commission that the provisions of such certificates were not subject to collateral attack. This Court held that “ [t]he appellant cannot blow hot and cold and take now a position con trary to that taken in the proceedings it invoked to obtain the Commission’s approval.” 345 U.S. at 513. In Davis v. Wakelee, 156 U.S. 680 (1895), Wakelee had obtained a final state court judgment against Davis on certain notes following service by publication. When Wakelee sought to assert the underlying claim in a bankruptcy action, the bankrupt Davis successfully argued that Wakelee need not, and thus could not, do so since the claim had already been reduced to a valid final judgment and was not dis chargeable. Thereafter Davis moved to set aside the original judgment on the ground that service by publica tion was unconstitutional, relying on Penvoyer v. Neff, 95 U.S. 714 (1878). This Court forbade Davis from main taining such an inconsistent position as to the legality of service and the validity of the resulting judgment. 156 U.S. at 689-691.8 See also Philadelphia R.R. Co. v. How ard, 54 U.S. (14 How) 307 (1851), Ohio R.R. Co. v. Mc Carthy, 96 U.S. 258 (1878). These principles apply a fortiori when the party seeking to advance inconsistent positions is the government. A private party has an interest in winning an action regard less of the arguments or maneuvers it may use. The gov ernment’s overriding interest is that justice should be 8 “It may be laid down as a general proposition that, where a party assumes a certain position in a legal proceeding, and suc ceeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position . . . It is contrary to the first principles of justice that a man should obtain an advantage over his adversary by asserting and relying upon the validity of a judgment against himself, and in a subsequent proceeding upon such judgment, claim it was ren dered without personal service upon him.” 6 done; so long as that occurs the government has won, regardless of whether a particular defendant goes free or a civil litigant obtains injunctive or monetary relief. Berger v. United States, 295 U.S. 78, 88 (1935). Six cir cuits considering this question have all held that the government may not advance inconsistent positions.9 As the Second Circuit pointed out in Staten Island Hygeia Ice Co. v. United States, 85 F.2d 68, 72 (1936), “ [tjhere is nothing in the nature of sovereignty or in the recog nized prerogatives of the sovereign that would allow the government to take and keep a right without the accom panying burden” . The due administration of justice would be materially advanced by requiring the Solicitor General to respond to this Petition For Rehearing and to state definitively whether the government maintains that section 717 does or does not apply to discrimination occurring prior to March 24, 1974. I f the Solicitor General adheres to the government’s position in Brown, the instant case can be summarily reversed.10 If the Solicitor General adheres to the government’s position in the Sixth Circuit, the issues presented by the pending Petition for Writ of Certiorari in Brown will be substantially simplified, and the neces sity for a grant of certiorari in the instant case, in view of the new and conflicting decision of yet another court 9 Goodman v. Public Service Commission, 467 F.2d 375 (D.C. Cir. 1972) ; United States v. Fox Lake State Bank, 366 F.2d 962, 965-66 (7th Cir. 1966); Vestal v. C.I.R., 152 F.2d 132 (D.C.Cir. 194 5 ); Eichelberger & Co. v. C.I.B., 88 F.2d 874 (5th Cir. 1937); United States v. Brown, 86 F.2d 798 (6th Cir. 1936); Staten Island Hygeia Ice Co. v. United States, 85 F.2d 68 (2d Cir. 1936); United States v. Denver, etc., B.R., 16 F.2d 374, 376 (8th Cir. 1926). 10 See, regarding the effect of such confessions of error Urrutia v. United States, 357 U.S. 577 (1 9 5 8 ); Howard v. United States, 356 U.S. 25 (1958). 7 of appeals, will be manifest. Compare Sanitary Refrigera tor Co. v. Winters, 280 U.S. 30, 34 n. (1929). Directing the Solicitor General to submit such a response is the most expeditious manner of precluding the government from continuing to advance different positions in different courts of appeal. The inconsistent positions taken by the respondents doubtless reflect a good faith belief by the Department of Justice that it would be extremely undesirable to permit inquiry into claims that federal officials are breaking the law by discriminating on the basis of race or sex. But the national policy in this regard is to be made, not by lawyers in the executive branch, but by Congress. It was Congress which prohibited such discrim ination in 1957. And it was Congress which, over the objections of the executive branch, mandated such judicial scrutiny in 1972. The issue presented by this case is the extent to which attorneys within the Department of Jus tice can thwart or delay implementation of congressional policy by asserting whichever of two inconsistent theories will, in any. particular case, prevent aggrieved employees from obtaining a judicial remedy. It is the very essence of a government of laws that there should be, in a case such as this, but one rule, uniform and invariable, ap plied to all citizens, regardless of whether, in some in stances, the result of that application may be displeasing to the men who chance to hold public office. United States v. United Mine Workers, 330 U.S. 258, 307-08 (1947) (Frankfurter, J. concurring). The ultimate responsibility for vindicating that principle is imposed by the Constitu tion on this Court. 8 CONCLUSION For the above reasons, as well as those contained in the Petition for Writ of Certiorari, Petitioner prays that this Court direct the Solicitor General to respond to this Petition for Rehearing, and that the Court thereafter grant rehearing of the order of denial, vacate that order, grant the petition and review the judgment and opinion below. Respectfully submitted, J a c k G r e e n b e r g J a m e s M. N a b r it , III B a r r y G o l d s t e in E r ic S c h n a p p e r 10 Columbus Circle New York, New York 10019 I r v in g S t a h l J a m e s P. G r e g o r y 1850 Guardian Building Detroit, Michigan 48226 Counsel for Petitioner 9 Certificate of Counsel As counsel for petitioner, I hereby certify that this Petition for Rehearing is presented in good faith and not for delay and is restricted to the grounds specified in Rule 58(2). Counsel for Petitioner APPENDIX Opinion of United States Court of Appeals For the Second Circuit UNITED STATES COURT OF APPEALS F or the Second Circuit No. 935— September Term, 1973. (Argued June 14, 1974 Decided November 21, 1974.) Docket No. 73-2628 Clarence B rown, Plaintiff-Appellant, v. G e n e r a l S e r v ic e s A d m i n i s t r a t i o n , U n it e d S t a t e s o f A m e r i c a , T r a n s p o r t a t io n a n d C o m m u n i c a t i o n s S e r v ic e , C o m m u n i c a t i o n s D i v is i o n , R e g io n 2 , J o s e p h A . D a l y , Regional Director, Transportation and Communications Service, A l b e r t G a l l o , Chief, Communications Division and F r a n k A. L a p o l l a , Acting Chief, Communications Division, Transportation and Communications Service, Region 2, Defendants-Appellees. B e f o r e : L umbard, H ays and T imbers, Circuit Judges. Appeal from judgment entered in the Southern District of New York, Lloyd F. MacMahon, District Judge, dismiss ing a complaint which alleged racially discriminatory em- la 2a ployment practices on the part of an agency and officials of the federal government. Affirmed. E eic S c h n a p p e r , New York, N.Y. (Jeff Greenup, Jack Greenberg, James M. Nabrit, III, Johnny J. Butler, Joseph P. Hudson and Greenup & Miller, New York, N.Y., on the brief), for Plaintiff-Appellant. C h a r l e s F r a n k l i n R i c h t e r , Asst. U.S. Atty., New York, N.Y. (Paul J. Curran, TJ.S. Atty., and Gerald A. Rosenberg, Asst. U.S. Atty., New York, N.Y., on the brief), for Defen dants-Appellees. T i m b e r s , Circuit Judge: This appeal from a judgment entered September 28, 1973 in the Southern District of New York, Lloyd F. Mac- Mahon, District Judge, dismissing the complaint in an ac tion brought against an agency and officials of the federal government to redress alleged racially discriminatory em ployment practices presents the questions (1) whether Section 717(c) of the Equal Employment Opportunity Act of 19721 applies retroactively to claims arising before its 1 Section 717(c) o f the Equal Employment Opportunity Act of 1972 as codified in 42 U.S.C. §2000e-16(c) (Supp. I I 1972), provides in pertinent part: “Within thirty days o f receipt o f notice o f final action taken by [an] . . . agency, or by the Civil Service Commission upon an appeal from a decision or order of such . . . agency . . . on a complaint of discrimination based on race, color, religion, sex or national origin, brought pursuant to subsection (a ) o f this section, Executive Order 11478 or any succeeding Executive orders, or after one hundred 3a enactment; (2) whether the statute pre-empts any other federal jurisdictional basis for appellant’s claim; and (3) whether in any event appellant has failed to exhaust ad ministrative remedies. We hold that each of these ques tions must be answered in the affirmative. We affirm. I. F acts Appellant Clarence Brown, a black, has been employed by the General Services Administration (GSA) Regional Office No. 2 (New York City) since 1957. He has not been promoted since 1966. His current job classification is Communications Specialist, GS-7, Telecommunications Division, Automated Data Telecommunications Service. In December 1970, Brown was referred for promotion to GS-9 by his supervisors along with two white employees, Ownbey and Trost. All three were rated “ highly qualified” . Trost was the only one promoted. Brown filed an admin istrative complaint of racial discrimination with the GSA Equal Employment Opportunity Office. The complaint was withdrawn, however, after Brown was told that further promotions would soon be available and that he had been denied promotion because of lack of the requisite “voice experience” . Brown claims that he thereafter acquired full “ voice experience” . In June 1971, another GS-9 promotional op portunity opened. Brown and Ownbey again were rated “highly qualified” for the opening. A third white employee also was available. Ownbey was chosen. and eighty days from the filing o f the initial charge with the . . . agency . . . or with the Civil Service Commission on appeal from a decision or order o f such . . . agency . . . until such time as final action may be taken by [an] . . . agency, . . . an employee . . . i f aggrieved by the final disposition o f his complaint, or by the failure to take final action on his complaint, may file a civil action as provided in section 2000e-5 of this title, in which civil action the head of the . . . agency, . . . shall be the defendant.” 4a On July 15, 1971, Brown filed a second administrative complaint with the GSA Equal Employment Opportunity Office, claiming racial discrimination in the denial of his promotion. An investigative report was prepared. After review, the GSA Regional Administrator determined that there was no evidence of racial discrimination and so in formed Brown by letter dated October 19, 1972. This letter also informed Brown that he could request a hearing on his complaint within seven days; but that if he did not make such a request, the determination would become the final agency decision and he would then have the right to appeal the GSA’s decision to the Board of Appeals and Review of the Civil Service Commission (CSC), or to file a civil action in the federal district court within 30 days. Brown requested a hearing. It was held on December 13, 1972 before a complaints examiner of the CSC. Brown was represented by counsel. On February 9, 1973, the com plaints examiner issued his findings and recommended de cision. He found no evidence of discrimination and recom mended that no action be taken on the basis of the com plaint. By letter dated March 23, 1973, received by Brown on March 26, the GSA Director of Civil Rights rendered the final agency decision that the evidence did not support the complaint of racial discrimination. The letter, pursuant to regulations, included a copy of the transcript of the hear ing and of the findings and recommended decision of the complaints examiner. The letter also advised Brown of his options: (1) to file an appeal with the Board of Appeals and Review of the CSC within 15 days after receipt of the letter, in which case he could commence a civil action in the federal district court within 30 days after receipt of the Board’s decision or 180 days after filing the appeal if no decision had been rendered; or (2) to commence a 5a civil action in the federal district court within 30 days after receipt of the letter.2 Brown did not file an appeal with the Board. Instead, he commenced the instant action in the district court on May 7, 1973—more than 30 days after receipt of the letter. His complaint named as defendants the GSA and Brown’s superiors, Joseph A. Daly, Albert Gallo and Frank A. Lapolla. Basically, Brown’s complaint alleges that he has been denied promotions because of his race.3 Apparently he seeks a promotion to Communications Assistant, GS-9, a supervisory position, and appropriate back pay, although some reference is made in his brief to damages based on discrimination. The original complaint alleged jurisdiction under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e et seq. (1970); Section 717 of the Equal Employment Opportunity Act of 1972, 42 U.S.C. §2000e-16 (Supp. II 1972); 28 U.S.C. §1331 (1970); and the Declaratory Judg ment Act, 28 U.S.C. §§2201-02 (1970). The complaint also sought to invoke jurisdiction to secure protection of and redress deprivation of rights secured by 42 U.S.C. §§2000e et seq. (1970) and 42 U.S.C. §1981 (1970). The complaint demanded “ such relief as may be appropriate, including injunctive orders, damages, costs, attorney’s fees and back pay.” 4 2 The provisions for civil actions are set forth in Section 717(c) of the Equal Employment Opportunity Act, 42 U.S.C. $2000e-16(c) (Supp. I I 1972). See note 1 supra. 3 The position of the GSA is that Brown is a somewhat uncooperative employee and therefore has not been promoted. The substantive dispute, however, is not before us on this appeal. Our decision is limited to the threshold jurisdictional questions presented. 4 Belief available under Title V II and the regulations promulgated thereunder would include retroactive promotion with back pay and at torney’s fees. 42 U.S.C. $$2000e-16(d), 2000e-5(g) (Supp. I I 1972); 42 U.S.C. $2000e-5(k) (1970); 5 C.F.B. $713.271(b) (1974). 6a On July 23, 1973, defendants moved to dismiss the com plaint on the ground that the court lacked subject matter jurisdiction since Brown had not filed his complaint within 30 days as required by Section 717(c) of the Equal Employ ment Opportunity Act of 1972 and his action therefore was barred by sovereign immunity. On September 18, 1973, Brown moved for leave to file an amended complaint. The proposed amended complaint sought to add the CSC and Selbmann, the complaints exam iner, as defendants, the original complaint having stated that the CSC had been joined as a party defendant although it was not actually named. The amended complaint also alleged as additional bases of jurisdiction 28 U.S.C. §1343 (4) (1970) and the Tucker Act, 28 U.S.C. §1346(a) and (b) (1970), and added an allegation that more than $10,000 was in controversy.5 6 In a memorandum opinion filed September 27,1973, Judge MacMahon held that Brown’s action was barred by sover eign immunity and that the district court therefore lacked subject matter jurisdiction. The judge also denied the motion for leave to amend on the ground that the original complaint had been dismissed and the proposed amended complaint did not change the situation. The essential questions thus presented are whether Sec tion 717(c) of the Equal Employment Opportunity Act of 1972 is to be applied retroactively to claims arising before but pending administratively at the time of its enactment; if so, whether that Act pre-empts any other avenue of judicial review; and whether in any event appellant has failed to exhaust administrative remedies. 5 Although the original complaint had alleged jurisdiction under 28 U.S.C. §1331 (1970), no jurisdictional amount was alleged. II. L e g is l a t iv e H is t o r y a n d S t a t u t o r y P r o v is io n s We believe that a key to the resolution of these questions may be found in the legislative history and the statutory provisions that emerged. Title YII of the Civil Rights Act of 1964 forbids em ployment discrimination based on race, color, religion, sex or national origin. 42 U.S.C. §§2000e-2 to -3 (1970), as amended (Supp. II 1972). As originally enacted in 1964, however, it did not apply to federal employees. 42 U.S.C. §2000e(b) (1970). Executive Orders6 and agency regula tions covered their complaints of employment discrimina tion.7 In general, the agency itself conducted an investiga tion and hearing on such complaints. Although the hear ing examiner might come from an outside agency, espe cially the CSC, the head of the employee’s agency made the final agency determination. Appeal lay only to the Board of Appeals and Review of the CSC.8 No private right of action was provided for federal em ployees by Title YII until 1972 when Congress amended the Equal Employment Opportunity Act by adding Sec tion 717(c). The legislative history of this section gen erally evinces a concern that job discrimination had not been eliminated in the federal government. It indicates the dissatisfaction of federal employees with the complaint procedures available. The committee reports show that Congress was not persuaded by testimony of agency offi cials that legislation was not needed because a private right 6 See Exec. Order No. 11478, as amended, Exec. Order 11590, 3 C.F.R. 207 (1974), 42 U.S.C. $2000e, at 10,297 (1970); Exec. Order 11246, as amended, Exec. Order 11375, 3 C.F.R. 169 (1974), 42 U.S.C. $2000e' at 10,294-97 (1970). 7 See 5 C.F.R. Pt. 713 (1971). 8 Id .; S. Rep. No. 92-415, 92d Cong., 1st Sess. 14 (1971), reprinted in Legislative History of the Equal Employment Opportunity Act o f 1972, at 410, 423 (1972) (hereinafter cited as Legislative History). 8a of action already existed. They note that, even if such right was available, the federal employee faced defenses of sov ereign immunity and failure to exhaust administrative rem edies ; and, even if such defenses were overcome, the relief available, such as back pay or immediate advancement, was in doubt.9 It was against this backdrop that Congress in 1972 pro vided a private right of action for federal employees who were not satisfied with the agency or CSC decisions. Under Section 717(c), an aggrieved employee may commence an action in a federal district court within 30 days after a final order by his agency on a complaint of discrimination based on race, color, religion, sex or national origin, or within 30 days after a final order of the CSC on an appeal from such an agency decision, or after the elapse of 180 days from the filing of the initial complaint with the agency or of the appeal with the CSC if no decision has been ren dered. No appeal need be taken to the CSC. The employee may go directly to court after the agency decision. 42 U.S.C. §2000e-16(c) (Supp. II 1972), note 1 supra. III. R e t r o a c t iv it y Brown’s administrative complaint was filed with the GSA in 1971. It was under agency consideration at the time of the enactment of Section 717(c) on March 24, 1972. The question of retroactivity thus presented is whether the sec tion should be applied to claims of discrimination which arose before its effective date but were awaiting final ad ministrative decision at that time.10 Retroactivity in this 9 H. R. Rep. No. 92-238, 923 Cong., 1st Sess. 23-26 (1971), in Legis lative History 61, 82-86; S. Rep. No. 92-415, 923 Cong., 1st Sess. 14-17 (1971), in Legislative History 410, 421-26. 10 Cf. Petterway v. Veterans Administration Hospital, 495 F.23 223 (5 Cir. 1974) (Section 717(c) hel3 not applicable to pre-Act claim o f fe3eral employment 3iserimination because complaint was no longer 9a context refers only to the claim; the district court com plaint in the instant action was filed on May 7, 1973— well after the date of enactment. All parties to this appeal have sidestepped the retro activity issue.- Appellees deal with the issue briefly in a footnote by stating that they assume retroactive operation in their arguments here although they have argued other wise elsewhere. Appellant argues that the section is not applicable to the instant action precisely because he did not file his complaint within the required 30 days and that other statutes provide a jurisdictional basis for his action. The issue of retroactive application of this statute has resulted in a conflict between the circuits. The District of Columbia and Fourth Circuits have held that Section 717(c) applies retroactively to claims pending at the time of its enactment. Womack v. Lynn,------ F .2 d -------- (D.C. Cir. 1974) (No. 72-1827, filed October 1, 1974); Roger v. Ball, 497 F.2d 702 (4 Cir. 1974). The Sixth Circuit has held that it does not. Place v. Weinberger, 497 F.2d 412 (6 Cir. 1974). The district courts have gone both ways. Compare, e.g., Ficklin v. Sabatini, 378 F.Supp. 19 (E.D. Pa. 1974) (retroactive); Henderson v. Defense Contract Administration Services, 370 F.Supp. 180 (S.D.N.Y. 1973) (retroactive); Walker v. Kleindienst, 357 F.Supp. 749 (D.D.C. 1973) (retroactive) with Moseley v. United States, No. 72-380-S (S.D. Cal., filed January 23, 1973) (non retroactive) ; Hill-Vincent v. Richardson, 359 F.Supp. 308 (N.D. 111. 1973) (non-retroactive). The conflict as to retroactivity has turned on whether Section 717(c) is to be viewed as providing a new substan tive right for federal employees or whether it merely provides a new remedy for enforcing an existing right. pending in agency at time of enactment and because complaint was filed beyond 30 day period). 10a The pre-1972 right of a federal employee not to be dis criminated against is said to be found in Congressional en actments, 5 U.S.C. §7151 (1970), and Executive Orders. Exec. Orders 11246, 11478, note 6 supra. Courts which have adopted the view that Section 717 (c) provides a new remedy for enforcing an existing right have held the sec tion retroactive on the grounds that it is remedial, Hender son v. Defense Contract Administration Services, supra, or that it is procedural. Koger v. Ball, supra. Courts which have refused to give retroactive effect to the statute, aside from rejecting the view that Section 717(c) merely creates a new remedy for a pre-existing right, have held that Congress intended only certain por tions of the Equal Employment Opportunity Act to be retroactive for the reason that in Section 14 of the Act, in 42 U.S.C. §2000e-5, at 1,257 (Supp. II 1972), there is a specific provision that amendments to one section of Title VII are to be given retroactive effect, and since there is no reference in Section 14 to Section 717(c), the latter should not be given retroactive effect. See, e.g., Place v. Weinberger, supra. This latter view strikes us as being inconsistent with the underlying principle of Bradley v. School Board of City of Richmond,------U .S.------- (1974), 42 U.S.L.W. 4703 (U.S. May 15, 1974). There the Supreme Court held that a stat ute11 authorizing a federal court to award attorney’s fees in school desegregation cases should have been applied by the Court of Appeals so as to result in the affirmance of the decision of the District Court which had awarded such fees on the basis of its general equity power, since the statute was enacted after the District Court’s award hut before 11 Section 718 of the Emergency School Aid Act, Title V II of the Education Amendments of 1972, 20 1J.S.C. $1617 (Supp. I l l 1973). 11a the Court of Appeals’ decision. The rationale of the Su preme Court’s decision was stated as follows: “We anchor our holding in this case on the prin ciple that a court is to apply the law in effect at the time it renders its decision, unless doing so would re sult in manifest injustice or there is statutory direc tion or legislative history to the contrary.” ------U.S. a t ------ , 42 U.S.L.W. at 4707. We believe that this principle applies here. Neither the statute itself nor the legislative history gives any direction as to whether Section 717(c) should be applied to com plaints pending within the agency at the time of its enact ment. In light of Bradley, we cannot agree with the Sixth Circuit’s holding in Place v. Weinberger, supra, that Con gress by its silence as to all sections of the Act except one intended the other sections to have prospective ap plication only. As the Supreme Court stated in Bradley: “ [E]ven where the intervening law does not explicitly recite that it is to be applied to pending cases, it is to be given recognition and effect. Accordingly, we must reject the contention that a change in the law is to be given effect in a pending case only where that is the clear and stated intention of the legislature. . . . ” ------U.S. a t------- , 42 U.S.L.W. at 4708. While Bradley dealt with a court of appeals’ review of a district court’s decision, we believe that the underlying principle is applicable to a review by a district court of an agency decision. So far as the statutory language and the relevant legislative history are concerned, retroactive appli cation of Section 717(c) would appear to be appropriate. This does not end our analysis under Bradley. We must determine whether application of a change in law to pend- 12a ing claims “ would result in manifest injustice” . ------ U.S. a t ------ , 42 U.S.L.W. at 4707. In each of the cases where Section 717(c) has been applied retroactively, it was done to aid a plaintiff in the prosecution of his complaint. See, e.g., Roger v. Ball, supra. In view of the policy of the federal government against discrimination in federal em ployment and its encouragement of efforts to eliminate such discrimination in the private and state and local gov ernment sectors, such retroactive application of the statute appears sound. I f Section 717(c) is held applicable here, however, Brown’s claim must fall since he admittedly has failed to comply with its 30 day filing requirement. We hold that there is no “manifest injustice” in the retro active application of the statute to Brown’s complaint. Twice he was notified in letters from the GSA of the pro cedure for obtaining court review of the agency decision. Both letters gave notice of the 30 day filing requirement. His counsel have not suggested any excuse for the delay in filing the complaint—either in their briefs, or in oral argument, particularly in response to a direct question by the Court concerning such delay. Instead, his counsel argue that the statute does not apply because Brown has not com plied with it.12 In a sense, he is correct in that he cannot take advantage of the statute because he has not complied with its terms. This failure is fatal to Brown’s claim, since we hold below that Congress intended Section 717(c) to be the exclusive judicial remedy for federal employee dis crimination grievances. IV. P k e -e m p t i o n Appellees argue that, whatever may be the merits of the alternative bases for jurisdiction asserted by appellant, 12 It is interesting to note that both the original complaint and the proposed amended complaint invoked Section 717 as one basis o f jurisdiction in the district court. 13a they are pre-empted by Section 717(c). Neither the Act itself nor its legislative history conclusively demonstrates that such pre-emption was intended. Congress enacted Section 717(c) to provide a private right of action for fed eral employees—a right it believed to have been previously non-existent or so difficult to enforce as to have been in effect non-existent. The most persuasive argument in favor of pre-emption is that the Act constitutes a waiver of sov ereign immunity and as such must be strictly construed. The doctrine of sovereign immunity forbids suits against the government without its consent. Sovereign immunity in the present context involves not only that of the United States but also that of its officers in performing their offi cial functions. As the Eighth Circuit succinctly put it : “A suit against an officer of the United States is one against the United States itself ‘ if the decree would operate against’ the sovereign, Hawaii v. Gordon, 373 U.S. 57, 58, 83 S.Ct. 1052, 1053,10 L.Ed. 2d 191 (1963); or if ‘the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration’, Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947); or if the effect of the judgment would be ‘to restrain the Government from acting, or to compel it to act’, Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 704, 69 S.Ct. 1457,1468, 93 L.Ed. 1628 (1949)___ ” Gnotta v. United States, 415 F.2d 1271, 1277 (8 Cir. 1969) (Blackmun, J.), cert, denied, 397 U.S. 934 (1970). The court in Gnotta held that demands for promotion and back pay fall within the scope of this immunity as they necessarily involve expenditures from the Treasury and compel the exercise of administrative discretion in an offi cial personnel area. 415 F.2d at 1277. This is precisely the relief demanded in the instant case. 14a Sovereign immunity would bar prosecution of this action absent an effective waiver. Congress can impose restric tions on its consent to be sued, Battaglia v. United States, 303 F.2d 683, 685 (2 Cir.), cert, dismissed, 371 U.S. 907 (1962), including limitations on the time within which suit must be commenced. United States v. One 1961 Red Chev rolet Impala Sedan, 457 F.2d 1353, 1357 (5 Cir. 1972). The consent Congress has given for the instant type of action is set forth in Section 717(c). Such consent is conditioned on compliance with the 30 day filing requirement. Statutes waiving sovereign immunity are to be strictly construed. But assuming, as appellant argues, that deci sions of the Supreme Court illustrate a more liberal atti tude with regard to waivers of sovereign immunity at least where a federal agency is concerned, see Federal Housing Administration v. Burr, 309 U.S. 242 (1940); Kiefer & Kiefer v. Reconstruction Finance Corp., 306 U.S. 381 (1939), 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 ex pedient of putting a different label on [his] pleadings.” Preiser v. Rodriguez, 411 U.S. 475, 489-90 (1973). The instant complaint was filed more than a year after passage of the 1972 Act. Brown had notice of its provi sions. He has offered no excuse for failure to comply, nor has he addressed the issue of retroactivity. We find no injustice in requiring compliance with the 30 day filing requirement. On the contrary, to permit suit without com pliance with the conditions imposed by Section 717(c) would effectively undermine the strong public policy that requires strict construction of a statute which waives sovereign immunity.18 13 In view of our holding, we find it unnecessary to consider appellant’s claims that jurisdiction can be founded on 28 U.S.C. $1361 (1970) 15a V. F a i l u r e t o E x h a u s t A d m in i s t r a t i v e R e m e d ie s Finally, even if we were to hold in favor of Brown on the issues discussed above, his claim would fall for failure to exhaust administrative remedies under regulations in effect prior to the 1972 Act. Although he pursued these remedies to the extent of obtaining a final agency deci sion, he failed to appeal to the Board of Appeals and Re view of the CSC. See 5 C.F.R. §§713.231 to .234 (1974), 34 Fed. Reg. 5371 (1969). Assuming without deciding that exhaustion of federal administrative remedies may not be required in every case of alleged discriminatory federal employment practices, cf. McKart v. United States, 395 U.S. 185 (1969); but see Penn v. Schlesinger, 490 F.2d 700, 707-14 (5 Cir. 1973) (dissent ing opinion), rev’d en banc, 497 F.2d 970 (5 Cir. 1974) (adopting panel dissent), there is nothing in the allega tions of Brown’s complaint which justifies the “premature interruption of the administrative process.” McKart v. United States, supra, 395 U.S. at 193. The “notions of judicial efficiency” stressed by the Court in McKart are particularly applicable here: “A complaining party may be successful in vindicating his rights in the administrative process. I f he is re quired to pursue his administrative remedies, the courts may never have to intervene.” 395 U.S. at 195. For aught that appears in the record before us, we can not say that an appeal to the CSC might not have resulted in granting the relief sought by Brown. Since he did not exhaust his administrative remedies, however, we have been presented with troublesome jurisdictional questions (mandamus); the Administrative Procedure Act, 5 U.S.C. $$701-06 (1970); the Tucker Act, 28 U.S.C. $1346(a) and (b ) (1J70); and 42 U.S.C. $1981 (1970) and 28 U.S.C. $1343(4) (1970). 16a which must be resolved before the substantive issue of discrimination can even be considered. See Penn v. Schlesinger, supra, 490 F.2d at 712. Moreover, it cannot be said here that the administra tive remedies available to Brown were inadequate or fu tile. Cf. McKart v. United States, supra, 395 U.S. at 200; Eisen v. Eastman, 421 F.2d 560, 569 (2 Cir. 1969), cert, denied, 400 U.S. 841 (1970). Administrative regula tions in effect at the time Brown filed his complaint in the district court (and which remain in effect) provided for retroactive promotion with back pay if discrimina tion was found. 5 C.F.R. §713.271(b) (1974), 37 Fed. Reg. 22,717 (1972). This essentially is the relief sought in his federal court action. Nor does Brown claim that he had no notice of the appellate relief available (he re ceived two letters so informing him), or that his attempts to seek administrative remedies were frustrated. See Penn v. Schlesinger, supra, 490 F.2d at 706. Under the circumstances of this case, we hold that Brown inexcusably failed to exhaust available administrative rem edies. C o n c l u s io n - Clearly the federal courts have jurisdiction under Sec tion 717(c) of the Equal Employment Opportunity Act of 1972 to review claims by federal employees of dis criminatory employment practices. Brown’s failure to com ply with the statutory requirements with respect to ap pealing to the Board of Appeals and Review of the CSC, or by commencing a timely action in the district court, has presented the threshold jurisdictional issues to which this opinion is addressed. We hold that his failure to commence the instant action in the district court within 30 days of the final agency decision is fatal to his com 17a plaint since Section 717 (c) operates retroactively and pre empts any other avenue of judicial review; and that he has failed to exhaust available administrative remedies. The entire process of administrative review by the CSC and of judicial review within the 30 day period for seek ing such review makes no sense at all if an employee may simply ignore the statutory requirements. Affirmed. MEILEN PRESS INC. — N. Y. C. «^§g» 219