Wilkins, Roger; and Others, undated - 1 of 6

    In t h e

§>upmttr (Umirt of tlf£ lluitrii ^tatrs
October T erm, 1974

No. 74-116

D iane M. Place,

v.
Petitioner,

Caspar W einberger, et al.

SUPPLEMENTAL MEMORANDUM IN SUPPORT OF 
PETITION FOR REHEARING

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

10 Columbus Circle 
New York, New York 10019

I rving Stahl 
James P. Gregory

1850 Guardian Building 
Detroit, Michigan 48226

Counsel for Petitioner



In t h e

g>ttprrm? GImtrt nf tltp llmtvh §>tntvs
October T erm, 1974 

No. 74-116

D iane M. Place,

v.
Petitioner,

Caspar W einberger, et al.

SUPPLEMENTAL MEMORANDUM IN SUPPORT OF 
PETITION FOR REHEARING

Petitioner Diane M. Place submits this supplemental 
memorandum in support of her Petition for Rehearing.

As is set out more fully in the Petition for Rehearing, 
the United States in Brown v. General Services Administra­
tion, 507 F.2d 1300 (2d Cir. 1974) argued in the Second 
Circuit that section 717 does apply to acts of discrimination 
occurring before March 24, 1972, the direct opposite of the 
position taken by the government in the Sixth Circuit in the 
instant case. By successfully advancing conflicting argu­
ments in different courts of appeals the United States thus 
brought about a conflict between those circuits. A Petition 
for a Writ of Certiorari was filed in Brown v. General 
Services Administration on December 20, 1974. No. 74-768. 
In view of the government’s role in creating this conflict 
between Broivn and the instant case, it was clearly in­
cumbent upon the Solicitor General in responding to the 
petition in Brown to advise this Court which decision the



2

United States maintained was correct. Instead, the Solici­
tor General opposed certiorari in Brown, as he did in this 
case, while refusing to take any position on the merits of the 
decision,1 so as to leave government attorneys free to 
continue to advance conflicting arguments in the lower 
courts. Thus the United States, having successfully ad­
vanced inconsistent positions in two courts of appeals, now 
asks this Court to simultaneously uphold both of the con­
flicting decisions. Petitioner submits that it would be in­
appropriate to do so in light of this Court’s responsibility 
to maintain uniformity among the circuits and to relieve 
the lower federal courts of the burden of resolving ques­
tions which arise solely because of the government’s refusal 
to adhere to a single position.

Petitioner also asserted below and in this Court that 
federal jurisdiction over her claims existed under several 
federal statutes enacted prior to section 717, including 28 
U.S.C. § 1361, an argument which the Sixth Circuit rejected. 
In opposing Certiorari in the instant case, the Solicitor 
General took no position on the merits of this argument. 
The petitioner in Brown also argued that federal jurisdic­
tion existed under these earlier statutes. In Brown the 
Solicitor General contested the existence of such jurisdic­
tion on the sole ground that Brown had not exhausted his 
administrative remedies.2 In the instant case, however, 
petitioner Place did exhaust her administrative remedies. 
It thus appears that, in opposing Certiorari on this issue in 
the instant case, the Solicitor General is asking this Court 
to uphold a decision which he believes to be incorrect.

The failure of the Solicitor General to take a position 
on the merits of the issues raised by this case, as his

1 Brief for Respondents in Opposition, Brown v. General Ser­
vices Administration, No. 74-768, p. 5.

2 Id., p. 6.



3

similar failure in Brown,3 is not fortuitous. It arises, as the 
Solicitor General has indicated,4 from the differing interests 
and positions within the Department of Justice between the 
Civil Division, which is primarily concerned with winning 
civil suits against the United States, and the Civil Rights 
Division, which is primarily concerned with ending dis­
crimination. Both fairness to individual litigants and the 
efficient administration of justice require that the Attorney 
General resolve these differences and enunciate unequiv­
ocally the position of the United States on the important 
questions of law at issue.

Accordingly, the government should be directed to 
respond to the Petition for Rehearing and to state its 
position on the following questions of law:

(1) Does section 717 of the Equal Employment Oppor­
tunity Act of 1972 provide a remedy for acts of 
discrimination occurring before March 24, 1972?

(2) Is federal jurisdiction over discrimination in employ­
ment by the United States on the basis of race or sex 
provided by 5 U.S.C. §§ 703-706, 28 U.S.C. §§ 1331, 
1346,1361, or 42 U.S.C. § 1981?

3 See Reply Memorandum in Support of Petition for W rit of 
Certiorari, Brown  v. General Services Administration, No. 74-768.

4 Letter of Robert Bork to Hon. Michael Rodak, regarding Brown 
v. General Services Administration, dated February 11, 1975.



4

Respectfully submitted,

Jack Greenberg 
James M. N abrit, III 
B arry L. Goldstein 
E ric S chnapper

10 Columbus Circle 
New York, New York 10019

I rving Stahl 
James P. Gregory

1850 Guardian Building 
Detroit, Michigan 48226

Counsel for Petitioner



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