(dissenting):
In my view the District Court properly interpreted and applied EEOC regulations 29 C.F.R. § 1601.25a(c) and (d) relating to (1) Bernal’s jurisdictional obligation to file suit against Wilson within 30 days from receipt of the notice of “Right to Sue” requested by him and thereafter issued by the EEOC, and (2) that the EEOC did not retain any jurisdiction over the charge filed by Bernal after it issued the notice of “Right to Sue” because at no time did its Field Director determine that it was in the public interest to continue processing the *1217charges. None of the “excuses” advanced spell justification for non-compliance with the explicit requirement that the aggrieved party must file suit within 30 days of receipt of the aforesaid notice.
During oral argument counsel for EEOC attached significance to its administrative error in having submitted to Bernal the “Right to Sue” letter while not at the same time making the formal determination (through the Field Director) that “. it is in the public interest to continue such proceedings . . . ” 29 C.F.R. 1601.-25a(d), supra. While certainly recognizing that Congress intended that the Act be applied liberally on behalf of those alleged to be victims of discriminatory practices, I cannot fathom “liberalizing” the jurisdictional prerequisites to afford relief under these circumstances.
In addition to the above grounds relied upon by the Trial Court, I believe that the dismissal must be upheld on a basis not urged by the parties or relied upon by the District Court, because it involves matters of law only. An appellate court may affirm a trial court judgment on a basis not relied upon. In Pound v. Insurance Co. of North America, 439 F.2d 1059 (10th Cir. 1971), we said:
“. . .we are reminded of our well established maxim that if a trial court decision is correct upon any theory, we will uphold that decision.”
439 F.2d at 1062.
Bernal did not file charges with any state agency of Colorado, if such remedy were available. Accordingly, we need have no concern for the applicability of 42 U.S.C. § 2000e-5(e). There is no dispute that Bernal filed his charges directly with the EEOC on October 19,1970, and January 11, 1971. [R. 13, 89]. After the notice of “Right to Sue” letter was submitted, the Bernal file was transferred from the District Office to the Washington, D. C. Office and the latter office pursued conciliation negotiations with Wilson which were terminated on September 7, 1973 when the file was transferred to the Denver EEOC Litigation Center [Brief of Appellant, p. 6]. This suit was not filed until March 1, 1974. Accordingly, a period of more than six (6) months expired after both Bernal and Wilson had been informed that conciliation had failed [Appellant’s Brief, p. 6] and before the instant suit was filed by the EEOC. This “lapse” constitutes further and utter jurisdictional failure, even under the “liberalized” 1972 amendments.
42 U.S.C. § 2000e-5(f)(l) provides that “If within thirty days after a charge is filed with the Commission or within thirty days after expiration of any period of reference under subsection (c) or (d) of this section, the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission may bring a civil action . . ” The Commission failed to file the action within the thirty day limit. Further provisions of the same section provide that if within 180 days from the filing of the charge or the expiration of the period of reference or if the Commission has not entered into a conciliation agreement to which the person aggrieved is a party the EEOC shall notify the aggrieved party that he has ninety (90) days within which to file a civil suit against the respondent. That ninety days expired December 8, 1973, at least two and one-half months before this suit was filed, not by Bernal but by the EEOC. The EEOC has no power, right or authority to file this suit because no member of the Commission filed the unlawful employment charge alleged by Bernal as required by 42 U.S.C. § 2000e-5(d) necessary to trigger the right of the EEOC to sue on behalf of Bernal [1972 Amendment] IF FILED WITHIN NINETY DAYS AFTER CONCILIATION EFFORTS HAVE FAILED. So, even had a member of the Commission filed the charge (which is not the case), the same 90 day jurisdictional requirement was mandated upon the EEOC. It failed to meet the 90 day deadline. Again, the 90 day period expired December 8, 1973, some two and one-half months prior to filing of the instant suit.
I would affirm.