concurring:
The court holds that Woodard and Mills failed to exhaust their administrative remedies before instituting the present action, with the consequence that the district court lacked jurisdiction over their claims. I agree: as in Johnson v. Bergland, 614 F.2d 415 (5th Cir.1980), the complainants failed to cooperate with the defendant agency’s attempt to investigate their complaints, and by doing so shortcircuited the agency’s attempt to correct any problem without the necessity of judicial intervention. This is not a ease like Mangiapane v. Adams, 661 F.2d 1388 (D.C.Cir.1981), in which the agency simply dismissed a complaint for lack of specificity without requesting clarification from the complainant.
Having concluded that the district court lacked jurisdiction over this case, we have jurisdiction only to vacate the district court’s judgment and remand the case for dismissal. “Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.” Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514, 19 L.Ed. 264 (1869). In such a situation, it is not appropriate, in my *922opinion, to comment on the merits.1 I disassociate myself, therefore, from the majority’s extensive discussion of the substance of this case. In addition, I am less certain than my colleagues that the continuing violation theory of Title VII is no longer tenable, and decline to endorse the majority’s dicta to that effect. See Patterson v. American Tobacco Co., 634 F.2d 744, 751 (4th Cir.1980) (en banc), vacated on other grounds, 456 U.S. 63, 102 S.Ct. 1534, 71 L.Ed.2d 748 (1982).
. The court’s opinion cites United States Postal Service Board of Governors v. Aikens, — U.S. —, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983), in connection with its review of the merits. Aikens did not involve a district court judgment void for want of jurisdiction, but held that when a Title VII disparate treatment case has been fully tried on the merits, whether the plaintiff made out a prima facie case is irrelevant.