Place v. Weinberger Supplemental Brief in Support of Certiorari

    iutprm e (Enurt of %  TUnxtib Btatis

October Term, 1974 

No. 74-116

I n  the

D iane M. Place,

v.

Petitioner,

Caspar W einberger, et al.

SUPPLEMENTAL BRIEF IN SUPPORT 
OF CERTIORARI

Jack Greenberg 
James M. Nabrit, III  
B arry Goldstein 
E ric S chnapper

10 Columbus Circle 
New York, New York 10019

Irving Stahl 
James P. Gregory

1850 Guardian Building 
Detroit, Michigan 48226

Counsel for Petitioner



I n th e

i^ujirme QJnurt of tljp Initeii States
October T erm, 1974 

No. 74-116

D iane M. Place,

v.

Petitioner,

Caspar W einberger, et al.

SUPPLEMENTAL BRIEF IN SUPPORT 
OF CERTIORARI

Petitioner files this supplemental brief pursuant to Rule 
24(5) in support of her Petition for a Writ of Certiorari 
presently pending before this Court.

The decision of the Sixth Circuit in the instant case is 
in conflict with the decisions of two courts of appeals is­
sued since the filing of the Petition. The Court of Ap­
peals for the District of Columbia in Womack v. Lynn, 
8 EPD 119709 (October 1, 1974), held that section 717 of 
the 1964 Civil Rights Act does apply to discrimination 
occurring prior to March 24, 1972, the date on which that 
section became law. In the instant case the Sixth Circuit 
reached the opposite conclusion. Petition, pp. 12a-15a. 
In Bowers v. Campbell (No. 72-1273) (October 24, 1974), 
the Ninth Circuit upheld federal jurisdiction to hear 
claims of discrimination in federal employment, even 
though section 717 was inapplicable, a position rejected



2

by the Sixth Circuit below. Petition, pp. lfia-Ha.1 Two 
new district court opinions have been reported reaching 
opposite conclusions as to whether section 717 applies to 
discrimination prior to March 24, 1972. Day v. Wein­
berger, 8 EPD ft 9646 (D.D.C. 1974); Willingham v. Lynn, 
8 EPD ft 9618 (E.D. Mich. 1974).

The decision in Womack is of particular importance. 
The government, in opposing Certiorari, argues that the 
admitted conflict between the circuits is a narrow one be­
cause the Fourth Circuit, while applying section 717 to 
discrimination prior to March 24, 1972, may limit that 
rule to cases in which the final administrative determina­
tion occurred after March 24, 1972. Memorandum for Re­
spondents in Opposition, pp. 2-3. See Koger v. Ball, 497 
F.2d 702 (4th Cir. 1974); Clark v. Goode, 499 F.2d 130 
(4th Cir. 1974).2 In Womack, however, the final admin­
istrative determination had occurred on September 8, 1970, 
18 months before the enactment of section 717. The Court 
of Appeals nonetheless held section 717 applicable in 
Womack, and expressly rejected the reasoning of the Sixth 
Circuit in the instant case.3 Accordingly the conflict be­

1 Bowers upheld jurisdiction, inter alia, under the Administra­
tive Procedure Act, 5 U.S.C. §§ 701-06, a statute expressly relied 
on by Petitioner herein. Petition, p. 23.

2 Clark does not so limit the prior decision in Koger. In Clark 
the administrative proceedings had been exhausted in January 
1971, but suit was not filed until February 7, 1973. The Fourth 
Circuit did not reach the question of whether section 717 applied 
to claims not “pending” administratively on March 24, 1972, since 
it concluded that even if the section were so applicable the plain­
tiff in Clark had failed to commence his action within the time 
required by law. 499 F.2d at 133.

3 After noting the opinions of the Sixth Circuit, below, and the 
Fourth Circuit in Koger, the court in Womack concluded:

“ Having examined carefully both opinions, as well as the 
many District Court opinions and the arguments of the par­
ties before us, we are persuaded that the Fourth Circuit’s



3

tween the circuits is not limited as asserted by respon­
dents.

The practical importance of the question presented by 
this case is discussed at pp. 11-14 of the Petition. To date 
there are 22 reported lower court decisions on whether 
section 717 applies to discrimination occurring before its 
effective date, most of them decided within the last year. 
The number of as yet unreported cases presenting this 
question is doubtless substantially greater. Almost half 
of all reported cases filed under section 717 have involved 
discrimination prior to March 24, 1972. Many of these 
cases are class actions, and the rights of thousands of 
federal employees are at stake. The rights of such em­
ployees should not turn on the circuit in which they hap­
pen to work. Although the government describes this 
question as “not of continuing significance” ,4 the govern­
ment has every intention of continuing to use this issue 
as its most significant obstacle to judicial review of claims 
of discrimination.

Respondents do not deny that the conflict regarding 
section 717 will be important for many years in determin­
ing the scope of injunctive relief available to redress con­
tinuing practices of discrimination which originated before 
1972. The government suggests, however, that Title VII 
forbids awards of back pay for discrimination prior to 
March 24, 1972, unless an administrative complaint was 
filed before March 24, 1974. This is incorrect. Section 
706(g), 42 U.S.C. 2000e-5(g), referring to charges filed 
with the Equal Employment Opportunity Commission,

analysis is the better, both standing alone and in light of its 
convincing rebuttal of the statutory construction linchpin of 
the Place, decision. Accordingly we adopt the reasoning of 
Roger.”  8 EPD p. 5952.

4 Memorandum For The Respondents In Opposition, p. 3.



4

provides: “Back pay liability shall not accrue from a 
date more than two years prior to the filing of a charge 
with the Commission.” This two year statute of limita­
tions does not apply to charges of federal discrimination, 
for those charges are not filed with or considered by the 
Commission, but are processed by the agency or depart­
ment where the employee works. See 42 U.S.C. § 2000e-16. 
Even if the two year statute of limitations did apply to 
federal employees, the back pay claims affected by the 
conflict in circuits—those filed before March 24, 1974— 
would include over 6,000 individual complaints5 in addi­
tion to such classes of employees as those complainants 
might represent.

The present conflict among the circuits is an open invi­
tation to forum shopping. An aggrieved federal employee 
suing under section 717 may file that action either in the 
district where he or she works, or in the District of 
Columbia. 42 U.S.C. § 2000e-5(f) (3). A federal employee 
working in the Sixth Circuit, or in any other circuit or 
district adopting the constricted view of section 717 used 
below, can evade that restriction and obtain more com­
plete relief by suing instead in the District of Columbia 
where the law is controlled by Womack v. Lynn, 8 EPD 
U 9709 (D.D.C. 1974). This difference in the applicable 
law will be important for many years to come to federal 
employees suing to redress patterns of continuing dis­
crimination which generally arose prior to 1972. Certiorari 
is usually granted to resolve conflicts among the circuits 
precisely for the purpose of avoiding such forum shopping.

5 See Memorandum from Anthony W . Hudson, Director, Office 
of Federal Equal Employment Opportunity to Irving Kator, As­
sistant Executive Director, entitled “Government W ide Equal 
Employment Opportunity Counseling and Discrimination Com­
plaint Activity, Fiscal Year 1972 to Fiscal Year 1974.”



5

Tlie Solicitor General, although opposing Certiorari, 
does not undertake to defend the merits of the decision 
of the Court of Appeals. The decision below is clearly 
in conflict with this Court’s decision in Bradley v. School 
Board of the City of Richmond, 40 L.Ed. 2d 476 (1974). 
Under these circumstances, and in order to avoid further 
delay in the implementation of Section 717, Petitioner 
would urge that a Writ of Certiorari issue to review the 
judgment and opinion of the Sixth Circuit and that that 
judgment be reversed per curiam.

Jack Greenberg 
James M. Nabrit, III 
Barry Goldstein 
E ric Schnapper

10 Columbus Circle 
New York, New York 10019

Irving Stahl 
James P. Gregory

1850 Guardian Building 
Detroit, Michigan 48226

Counsel for Petitioner



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