Adams v. Califano Plaintiff Memo On Pending Matters 6-27-77 (Folder)

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UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA

KENNETH ADAMS, et al. ,

JUN 27 1977

JMES F, DAVEY 
CLERK

Plaintiffs, )
)

V. ) civil Action No. 3095-70
)

JOSEPH A. CALIFANO, Secretary, )
Department of Health, Education ) 
and Welfare, et al., )

}
Defendants. )

PLAINTIFFS' MEMORANDUM ON PENDING MATTERS

Sometime ago, when we learned that HEW has never 
implemented its mandatory special purpose and vocational 
school duties under this Court's 1973 decree, we filed a 

motion for further relief which is pending before this 
Court (together with our proposed interim order, filed 
after defendants admitted that they are in violation of this 

Court’s mandate). Also pending before this Court is defend­
ants' motion to consolidate this suit with WEAL and Brown —^ 
and to defer action herein for months on special purpose and 
vocational schools. Finally, there is filed herewith a motion 
for further relief because HEW is clearly also violating this 
Court's 1976 consent Order, stipulating timeframes and pro­
cedures for disposition of Title VI complaints and compliance 
reviews. ''

We take that matter up first, because it exposes as 
sham the basis for HEW's present refusal to comply with this 
Court's orders and its spurious contention that it lacks the 
resources to comply with the statute and court orders. In

Women's Equity Action Xeague v. Califano, Civ.A. No. 76-1720 
and Darryl W. Brown v. Califano, Civ.A. No. 75-1068.



that respect, we demonstrate (1) that defendants fully concede 

their ongoing violation of the 1975 Order; (2) that they are 
themselves responsible for that violation, because they have 

over the course of an entire year failed to fill the job slots 
on which that compliance plan was predicated; (3) that defend­
ants have long known and countenanced their noncompliance with 

the 1976 Order, without even alerting this Court to the facts; 
and (4) that defendants’ present claim that they lack the 
resources to implement the 1976 Order is wholly unsupported, 
and-in- fact disputed and. destroyed-by. the recent .deposition 

testimony given by Mr. Martin Gerry on June 20, 1977.
We respectfully submit that this case is seven years 

old, and it is high time to stop the successive recourse by 
HEW Secretaries to attacks upon this Court's Orders for defaults 

in their Title VI compliance which are no one's fault but their

PLAINTIFFS' MOTION FOR FURTHER RELIEF COHCERNIHG 
THIS COURT'S JUNE 14, 1976 ORDER SHOULD BE GRANTED.

Defendants Concede They Are In Violation 
Of This Court's 1976 Order.

This Court's Order of June 14, 1976 approved a settlement

between plaintiffs and OCR Director Martin Gerry following
intensive negotiations. The order provides timeframes and
procedures for the disposition of complaints of discrimination

and compliance reviews (1[s 3-9, 12-15) . It also requires the
elimination of the backlog of complaints against elementary
and secondary school district recipients of federal funds during

fiscal year 1977 which expires on September 30, 1977 (order, f20) . 
A

Martin Gerry, OCR's Director until January 20, 1977, testified



in a recent deposition that OCR contemplated that elimination 

of the elementary and secondary backlog in 1977 would free 
resources for more compliance reviews in fiscal 1978 (Gerry 
Deposition of June 20, 1977, pp. 12-13).

HEW is violating this Court’s June 1976 Order and concedes 
that it has been doing so since at least March of this year 
(Deposition of David S. Tatel, current Director of OCR, of 

June 18, 1977, pp. 64-65, 67-68, 74, and Deposition of Albert 
T. Hamlin, former Acting Director of OCR on June 18, 1977, 
pp. 27-29). Instead of eliminating the backlog by the end 
of fiscal year 1977 (Septon^er 30, 1977), HEW's Southern 
Regions will then have a backlog of 347 complaints (Tatel 

Supplemental Affidavit in Support of Motion to Consolidate, 

p. 2). Moreover, computer printouts produced by defendants 

reflect HEW's widescale failure to comply with the complaint
timeframes which are central to this Court’s 1976 Order (see

2/fs 8, 9, 14). In every Southern region, in every category 
of Title VI complaints, defendants have failed to follow the 
timeframes more often than not. For example. Region 4 has 
failed to process "backlog" complaints according to the time 
periods more than twice as often as the time strictures have 
been followed. Overall, in all of the Southern regions, defend­

ants have violated the timeframe requirements of this Court's 
Order with respect to 64% of the Title VI complaints processed. 
Yet defendants now seek to direct responsibility for their own

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2/ At Mr. Tatel's Deposition (see pp. 66-67), we requested 
that defendants produce.their latest computer printouts which 
track the dates of HEW’s actions on complaints. Those print­
outs are the basis oft the findings in the text and are amplified 
in the affidavit of Catherine L. Reeverts attached below (see 
also Tatel Depo., p.- 65) .



defaults elsewhere such as this Court’s Order (cf. Tatel 

Affidavit p. 2 and Tatel'Depo. pp.22-33).

B. HEW Is Responsible For Its Uoncompliance 
With This court's Order, Because It Has 
T,ona Failed to Fill the Job Positions On 
Which That order Is predicated^

The June 1976 settlement was negotiated on the assumption 

that the Office for Civil Rights would employ between 1,000 and 

1,050 persons in fiscal year 1977 (Gerry Depo., pp. 15-16).
As Mr. Gerry explains (id. at 16), by the time of the negotiations 
the Appropriations Committees had already approved-an additional 

150 positions for fiscal 1977 over the previous year. However, 

following this Court's 1976 Order HEW did not take the necessary 

implementing steps but instead permitted an excessive job vacancy 
rate at OCR which has seriously undermined defendants' compliance 

with the 1976 Order. Yet OCR's failure to fill its authorized 
positions could hardly have been inadvertent, for it is a default 

which has been the subject of frequent and recent Congressional 
admonitions (Hamlin Depo., pp. 25-26). Thus in fiscal year 1975, 

OCR's request for additional positions was cut in half because 
of a high vacancy rate (Deposition of Martin Gerry of February 
27, 1975, p. 20). Then, in September of 1975 the Senate Committee 
on Appropriations stated in its Report on the 1976 Appropriation 

Bill:
"The Committee also notes, that there has been 
an alarmingly high level of vacant positions 
within the OCR for the past two fiscal years.
The Committee therefore directs that OCR report 
to the Congress no later than:6 months following 
enactment, of this bill, the niomber of vacant 
positions as well as what efforts are being taken 
to properly fill and utilize these positions."

(Gerry Depo. of June^"20, 1976, Ex. 1, p. 88). In recent weeks



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the Appropriations Committees of both Houses of Congress 

approved only 100 of the 200 additional positions sought by 

OCR for fiscal 1978 because of OCR's high vacancy rate (Tatel 

Depo., Ex. 2, p. 95).
The impact of OCR's default since this Court's June 

1976 Order issued is clear: 121 of 904 positions remained

unfilled, a vacancy rate of 13.4% in June 1976 {App. below, p. la) 
Despite the Congressional admonitions, and the operative 
assumption of the June 1975 Order that OCR would employ between 
1,000 and 1,050 persons in fiscal year 1977, in the months after 

June 1976 defendants took no effective steps to lower their 
vacancy rate. To the contrary, by February 1977 vacancies had 
dramatically increased to 249, and more recently 226 positions 
remain unfilled —  22.6% of the 1,002 positions authorized for 

fiscal year 1977 (^.). In Region VI (Dallas) with the great­

est backlog of complaints, no less than 77 of the 164 authorized 
positions were vacant as of May 21, 1977 (Appendix below, pp. 

la-3a).
As former Director Martin Gerry has testified, the 

primary cause of OCR's excessive vacancy rate in 1976 was the 
failure of HEW's regional personnel officers to recruit and 
hire for OCR. These officers, accountable to HEW Regional 
Directors rather than to OCR, were "a major part of the problem;" 
in some instances "hostility to the OCR program . . .  lead to 
certainly a lack of priority by the HEW regional director, and 

regional Personnel Office on processing [OCR] personnel-related 
papers. . ." (Depo., p:'47). Although Mr. Gerry communicated 
with higher HEW offi^als including the Under Secretary to solve



the difficulty with the regional personnel offices, no improve­
ment resulted (id. at 60^61). The vacancy rate vastly increased 

after June of 1976; yet defendants failed to take the steps neces­
sary to correct it and have thereby rendered compliance with the 

1976 Order difficult almost from the very time of its issuance.
C. Defendants Have Long Known and Coiintenanced 

Their Nonccmpliance With the 1976 Order 
Without Alerting This Court to That Fact.

As early as November or December of 1976, in conversations 

with members of his staff, Mr. Gerry learned that there were 

"problems" in complying with the 1975 Order (Depo., pp. 57-59).

By March, Acting Director Hamlin had become "alarmed" over OCR's 
failure to eliminate the complaint backlogs as required by the 

Adams Order (Hamlin Depo., p. 27). At the beginning of March, 
the Office of Management and Budget imposed a government-wide

3/freeze as of February 28, 1977 on the filling of job vacancies.
On March 11, 1977, Defendant Califano wrote OMB requesting a 
partial exemption-from-the-freeze, for 28% of the vacancies in 

HEW as a whole . (Appendix below, pp. 4a-7a). There is oblique 

reference in the Califano letter as concerns nine HEW programs 
to "Workloads Mandated by Courts or Congress." That vague refer­
ence contrasts sharply with a letter several days later by Acting 
Director Hamlin to an HEW budget official, flatly stating that 

the job freeze would not permit OCR "to meet the court mandate" 

in Adams, or other commitments under the Annual Operating Plan 

and the law (Appendix below, pp. 8a-9a). Yet Hamlin's March

vacancies existing on February 28 could not be-filled and 
only three of four vacancies occurring thereafter could be 
filled (Tatel Depo., p. 9). OCR's continuing failure to solve 
the vacancy problem feius "came home to roost" as 249 jobs were 
unfilled on February 26, 1977 (Appendix below, p. la).



warning had no effect on his superiors at HEW for at least 

another two and one-half months, as they continued to violate 

this Court's Order without taking any remedial action at all. 

Finally, on May 28, 1977, Secretary Califano sent another 
letter to 0MB requesting permission to fill only 75% of OCR’s 
vacancies (Appendix below, pp. 10a-13a). We have been informed 
that in the last few days the HEW job freeze was eased by 0MB, 
permitting OCR to fill 138 of the vacancies. That still leaves 
more than 100 OCR jobs frozen by the Government. Even at this 
late date the Government is by its own freeze action preventing 

compliance with this Court's Order.
Despite their "alarm" in March over the failure to 

comply with this Court's Order, defendants failed even to 

notify the Court of their noncompliance. Buried in a table 
on page 2 of Mr. Tatel's Supplemental Affidavit of June 17,

1977 in support of the consolidation motion are data reflecting 
that OCR will fall far short of eliminating the Southern elementary 

and secondary complaint backlog by the end of fiscal year 1977.
Yet the Affidavit fails to tell the Court of defendants' widespread 
failure to comply with the 1976 Order, which failure our deposition 
questioning of the OCR Directors in the last few days has finally 
revealed for the public record (Tatel Depo., pp. 64-65, 67-68,

74, Hamlin Depo., pp. 27-29).
D. Defendants' Attack on the Workload Assumption

of the 1976 Order Is Unsupported and Is Refuted 
by Mr.. Gerry's Recent Deposition Testimony.

Defendants' failure to comply with the June 1976 Order 
is mainly a product of the swollen yacancy rate which they 

haye permitted and tolerated. Instead of reporting their



noncompliance to this Court and promising to take whatever steps 
are needed to return to compliance, defendants proffer a highly 
inflated estimate of resources required to process the average 

complaint, seeking to undermine the factual assumptions 
upon which Mr. Gerry agreed to the June 1976 consent Order.
The core of defendants’ claim of inadequate resources is re- 

estimates of the "person days" required for the average Title VI 
and Title IX complaint (Tatel Supplemental Affidavit, p. 6). 

Defendants' assertion that 40, 50 and even 60 person days are 

needed-on the average to process complaints is preposterous on -

its face, for a professional investigator could then process only
4/three or four complaints on the average in a year. As Mr. Gerry

responded in his recent deposition of June 20,1077: " it would be 

very hard for me to conceive of a situation where an investigator 
couldn’t certainly average at least or approximately one complaint 
a month" (Depo., p. 40). Mr. Gerry believes the estimates in 
the Tatel affidavit to be "seriously and I think unreasonably 

inflated" (id. at 28). For example, he finds the estimate of 
53-.days for the average Title VI elementary and secondary employ­
ment complaint "completely inconsistent with at least my 
experience, which was essentially eight years in the Office 
for. Civil Rights and the kinds of employment complaints that
were received,... [which] tend to be relatively straightforward" 

5/(pp. 28-29).“ ■
4/ Defendants assume that the average investigator has only a 
169-person days available per year, an assumption which Mr. Gerry 
sharply questions (Tatel Supplemental Affidavit, p. 7, Gerry Depo. 
pp. 38-39). '
5/ The Tatel affidavit estimates that the average higher educa­
tion services complain,t under Title VI takes 30 days while the 
same complaint on the', elementary and secondary level requires 
50 days, a disparity Mr. Gerry finds "almost incredible. My 
experience in HEW was precisely the opposite" (Depo., p. 30). 
Similarly, the 39-day figure for the average Title IX elementary



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Defendants' current claim of the number of days required 

to process an average complaint is also belied by the public 

record. Three years ago HEW told a Committee of the Congress 

that three-person days were required on the average to process 

a complaint (see Plaintiffs' Opposition to Defendants' Motion 
for Enlargement of Time, Etc., filed June 16, 1975, App. A, 
p. 3945). When defendants sought relief from this Court's 

Supplemental Order of March 14, 1975, defendants argued that 

20-person days on the average were required (Affidavit of Peter 

Holmes in support of Defendants' Motion for Enlargement of Time, 

Etc., filed June 3, 1975, p. 8). Mr. Gerry testifies (Depo., 

pp. 17-21) that the 20-day figure was the product of intensive 

scrutiny of the issue on four separate occasions in the last 

two years; before HEW sought to modify this Court's March 14, 
1975 Order; during a review of the actual performance of the 
Southern Regions in eliminating backlogs in the last half of 

1975 after this Court permitted a limited extension of time 
on July 17, 1975; during settlement negotiations with the 

plaintiffs in early 1976; and during planning for fiscal years 
1977 and 1978 by OCR's Executive Staff in the summer of 1976. 
Although Mr. Gerry himself "leaned" to 15 days as sufficient for 
the average complaint, he agreed to the 20-day figure to permit

5/ footnote continued.
and secondary complaint is "almost unbelievable;" thirty-five 
percent of these cases are dress or grooming code violations 
which take "around two days to handle, at the most" (id. at 32). 
Although the Tatel estimates apparently include the "negotiation" 
phase of complaint processing as well as the "investigation" 
phase, Mr. Gerry testified that no more than two or three person 
days should be added for negotiations because most are done by 
administrators, branch chiefs or regional civil rights directors 
and not the investiga.^ors (id. at 35) .



flexibility for any possible contingencies (Depo., pp. 20-21). 

Finally, defendants used the 20-day figure they now would dis­
avow as the basis for their 1977 Annual Operating Plan issued

6/only four months ago (Tatel Depo., Ex. 3, p. 11156).
In short, defendants' inflated assertions of manpower

resources which an average complaint requires are flatly con­

tradicted by OCR's previous determinations over the last three 
years and by the testimony of Mr. Gerry, and they are wholly 
unsupported by "backup" documents available for review. In no 
way -can they justify -violation or-modification of this Court's 

1976 Order.
Defendants Unconscionably Propose To Continue 
Their Violation of This Court's 1976 Order 
Until 1979.

As long as defendants fail to fill 23% of the positions 

in OCR and fail to require their investigators to keep time-sheets 
of their activities, they cannot claim with any credibility that

their inadequate to comply with this Court's Order
7/or the relevant statutory authorities." Having admitted that

£/ Flabbergasted by OCR's assertion to this Court that the 
average complaint takes.two and three times its previous estimate 
of only a few months ago, we requested production of any back-up 
dociiments for the new inflated numbers (Tatel Depo., pp. 86-87). 
Those documents, available in Washington, D. C., do not back up 
but instead completely undermine the reliability of defendants' 
new estimates and demonstrate how useless they are. First of 
all, very few-of the new numbers are based on actual time sheets 
which would reflect how much time an investigator spends on any 
component of the complaint process. Secondly, the Regional 
Office submissions exhibit the widest variations of the time 
required to do the same task. For example, the Chicago branch 
of Region 5 asserts that the "most likely time" for an average 
Title VI services complaint through the enforcement stage where 
discrimination is found is 1,284 person hours while the--Cleveland 
Branch of the same Region estimates only 248 person hours- Where 
no discriminatidn is foynd in the same type of complaint, the 
Cleveland Branch of Region 5 estimates 167 person hours, 20% 
of the Region 4 numbed of 812 person hours. With such disparities, 
the average estimates^set forth in the Supplemental Affidavit 
are meaningless- . ■
7/ See footnote on^p. 11-



they are violating this Court's Order, defendants surely cannot 

be pennitted to continue that violation into 1979.

Yet that is what they propose to do. Subsequent to 

becoming "alarmed" at OCR's noncompliance, former Acting Director 

Hamlin failed to detail any persons to the Southern regions to 

facilitate compliance with the Order (Depo., p. 33). Nor did 

he request any additional persons from HEW outside of OCR (id.),

Mr. Tatel, since becoming Director on May 2, similarly has not 

sought additional resources to end his noncompliance (Depo., 

pp. 70-71, 76, 100). Indeed, he does not anticipate "sub­
stantially additional resources" until fiscal year 1979 which 
commences in October of next year —  and candidly admits that 
until then "there probably will continue to be noncompliance" 

with this Court's 1976 Order (Depo., p. 71). That means that 
HEW proposes to violate this Court's Order into calendar year 
1979 because the new persons authorized for fiscal 1979 will 
surely not be hired and trained until then. Mr. Tatel believes 
that OCR's resources are inadequate to comply with this Court's 

Order and statutory mandates in fiscal year 1978 (Depo., pp. 38-39, 
45, 64-65). He suggests that Secretary Califano agrees "that 

OCR lacks sufficient resources at this time to fulfill its

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2/ If in fact defendants really have inadequate resources, 
applicable cases make clear that lack of resources cannot 
justify HEW's distribution of federal funds to discriminating 
recipients. Wyatt v. Aderholt, 503 F. 2d 1305, 1315 (5th Cir. 
1974); Gates V. Collier, 501 F. 2d 1291, 1320 (5th Cir. 1974); 
Greater Washington, D. C. Area Council of Senior Citizens v.
D. C. Government, 406 F. Supp. 768, 775, n. 46 (D.D.C. 1975); 
Hamilton V. Love,' 328 F. Supp. 1182, 1194 (E.D.Ark. 1971). But 
HEW not having proven a lack of resources, this Court need not 
reach any legal issues which would be raised by such a claim.



- 12 -

statutory responsibilities" (id. at 38). However, Mr. Tatel 
will seek a Supplemental Appropriation from the Congress only 

if there is a "reasonable" chance that the request will be 
granted (id. at 38-46). Such proposed continued violation 
clearly requires further relief from this Court, which we are 
seeking in a motion and proposed Order being filed along with 

this memorandum.
II. PLAINTIFFS' MOTION FOR FURTHER REII.EF

CONCERNING SPECIAL PURPOSE AND VOCATIONAL 
SCHOOLS SHOULD BE GRANTED.

Defendants have filed no reply to plaintiffs’ request for 

an interim Order concerning special purpose and vocational 

schools. Since the filing of our initial motion six weeks ago, 
defendants have made a single trip to visit segregated deaf 
and blind schools in one Louisiana city. No other HEW activity 
to comply with this Court's 1973 Order is contemplated for the 
more than three months remaining in this fiscal year, despite 
the conceded continuing violation of "that Order concerning 

these schools. Such continuing defiance by defendants must 
be stopped, and immediate entry of our interim Order is thus 

appropriate and necessary.
III. DEFENDANTS' MOTION TO CONSOLIDATE 

ACTIONS SHOULD BE DENIED.,
Defendants'- motion to, consolidate Adams with WEAL and- 

Brown is premised on inadequate resources to comply with 
statutory and judicial requirements. We have shown earlier 
(pp. 7-10) that defendants have no credible or meaningful 
evidence to claim a resource problem.-, However, even if they . 

did, it does not follow that these cases should be consolidated.

;,3:



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Resource defenses can as easily be filed before two judges 

as before one.
The three cases are very different procedurally and 

substantively. For example, one cause of action in Brown 
remains to be adjudicated while Adams solely concerns questions 

of remedy. Similarly, the remedial substantive higher education 

issues in the Southern Adams states bear no resemblance to OCR's 

obligations concerning higher education complaints filed by 

the WEAL plaintiffs or the members of their class under Title IX.
Adams is complex enough without injecting the frequently 

different issues raised in Brown and WEAL. The motion for 
consolidation, which would result only in an increased workload 

for a single judge, should be denied.
Respectfully submitted.

Jack Greenberg 
James M. Nabrit, III

10 Columbus Circle 
New York, New York

Joseph L. Rauh, Jr.
John Silard 
Elliott C. Lichtman

Rauh, Silard and Lichtman 
1001 Connecticut Avenue, N. W. 
Washington, D. C. 20036 
(202) 331-1795

Attorneys for plaintiffs

June 27, 1977