Petition — Berger v. United States

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Supreme Court, U. $,

FILED #2

NOV 17 1976

IN THE

Supreme Court of the United States f

OcToBER TERM, 1976

No 76-693 «

Virotmnta J. Marcu, Jonn H. Lene, ARTHUR TINGLEY,

Lucy I. F. Jonnson, EvizapetH A. MessMER, MARY

ALICE REKUCKI, and JoHN Morrison, on behalf of

themselves and all others similarly situated,

Petitioners,

THE Unitep States, Respondent.

Earu C. Bercer, Petitioner,

THE UNITED STATES, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CiRCUIT

Earu C. BERGER

499 Hamilton Avenue,

Palo Alto, California 94301

Attorney for Petitioners

JOHN W. BERGEN

Plunkett Street

Lenox, Mass. 01240

Of Counsel

Press or Byron 8S. Adams Paintine, INc., WASHINGTON, D. C.

TABLE OF CONTENTS

Page

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EES 556 dnc dad icvosscevcevétéescdsuctateuce +

GO PED © ok vekescccicucecocccecosnccs 4

CONSTITUTION AND StaTuTory Provisions INVoLVED.... 6

OE i 5. cciknscdd bade décecas¥e 7

Reasons FoR GRANTING THE WRIT

1. The Judgment Deprives Petitioners of Their

Property Without Due Process of Law ....... 16

2. The Decision Below Which Vitiates the Contin-

gent Retainer Solely Because It Is Based on a

Percentage Fee, Constitutes Judicial Legisla-

tion, Establishing New Public Policy, Although

Only Congress Can Legislate Public Policy ... 20

3. The Affirmance of the Judgment Made on Re-

mand Validates Unauthorized Acts on the Part

of Attorneys Who Exceeded Their Authority

and Who Also Changed Over to the Opposite

Side of the Same Case ............-.eeeeees 22

I, 8 oii ik np ie R a 24

TABLE OF CITATIONS

CASES:

Alyeska Pipeline, etc. v. Wilderness Society, et al.,

(May 12, 1975), 421 U.S. 39, 44 L.Ed. 2d 141 .... 21

Bry-Man’s Inc. v. Stute, (5 Cire. 1963) 312 F.2d 585... 15

Burich v. United States, 170 Ct. Cl. 189 ............. 15

Cohen v. Beneficiai Loan, 337 U.S. 541, 546, 69 S.Ct.

Ss OP A MEE dédeedencsccescevéaeiecens 16

Doylo v. Veterans Admn., 501 F.2d 817 (1974 D.C.

660 008d 4 ded dec peoldetns os cond beanaeeue 15, 21

ii Table of Citations Continued

Page

Freeman v. Ryan (1968 D.C. Circ.), 408 F.2d 1204... 16

Friedman v. United States, 310 F.2d 181 (1962) ...... 15

Gesellschaft v. Brown, 78 F.2d 410, 412, 64 U.S. App.

Ge Be ERE dda keene cbndsk cbs eccne enous 15, 23

Huskisson v. Hawati Dredging (VII Cire. 1954), 212

a S| eee Pp rer Tore sper reer 21

Meddaugh v. Wilson, 151 U.S. 333, 14 S.Ct. 356, 38

Ri Se accu eeakuas oes seks Geeks ta caeneaks 14 16

Pete et al v. United Mine Workers, etc., (D.C. Cire.

OUR A, GES Fale BID 6 bn occsncccdavstevauenens 13, 20

Petition of Trinidad Corp. (2d Cire. 1955), 229 F.2d

es GP bx bectstbeucs 64 seycucassmedue FE oy 15

Preveden v. Hahn, (S.D.N.Y. 1941) 36 F.Supp. 955... 15

Ricketts v. Pennsylvania R.R. (2d Cir. 1946) 153

J 4 Fee eer ee 23

Shelly v. Kraemer, 334 U.S.1 ........eeceeceeeceees 19

United States v. Beeke, 180 U.S. 527 (1901) .......... 23

United Siates v. Preston (9th Cire. 1965) 352 F.2d 352 16

STATUTE:

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SB UBS. 6 RBA AE) «cc ccccscccccescccvovcccses 7

is We bo as 00s cnncdnsdcaescensscccehans 7,18

BE es OI 6-60 cvcwecccscccadievoceseds 7, 10, 19, 20

CONSTITUTIONAL PROVISIONS:

ED n.6 664500650 b6dbcbnesseesKadseennsess 5, 6

DUROETEE BEY cc ceccccccvcccesecscsccessvcceces 5, 7

MISCELLANEOUS:

IE IEE oe Keduseevesneseeesauuabshenene 5, 7, 11, 15, 17

PRRs UD ccvdndccdtstecesevussepasnesetdvesanes 7, 10

SED inn obs eee buR CEN CHaeRes os Keene 5, 7, 10, 17

Restatement, Judgments, Ch. 2, Sec. 6 .............. 17

‘Re tana —

ea. Soe er.

INDEX TO APPENDICES ili

Appendix Page

A—Judgment of Remand Court ................... la

B—Decision, Nov. 12, 1974, Court of Appeals ...... 13a

C—Order (Remand Court) Nov. 7, 1975

striking motion to amend .................-. 38a

D—Order (Remand Court) denying partial stay

pending appeal ....... nbhenWen Odd coe ees 39a

E—Motion for summary affirmance (April 16, 1976) 40a

F—Order granting summary affirmance and denying

partial stay pending appeal ................ 42a

G—Order extending time for petition for

reconsideration to July 30, 1976 ............ toa

H—Order for reconsideration and hearing en banc

Sy ER DEE bNCAd Che eeaeUcahnet cketesees 45a

I-—Letter of Cole & Groner dated Nov. 11, 1975 re.

Berger’s chief role in this case .............. 46a

J—28 U.S.C. Sec. 1254 (jurisdiction for this writ) .. 47a

K—28 U.S.C. Sec. 1346 (jurisdiction of District court) 48a

L—28 U.S.C. Sec. 2411 (legal interest) ............ 49a

M—28 U.S.C. 2678 (attorneys’ fees) .............. 50a

N—F.R.C.P. No. 19 (necessary parties) ........... dla

O—F'.R.C.P. No. 52 (re. Findings by court) ........ 53a

P—F.R.C.P. No. 60 (b) (re. Motions to amend)..... 54a

Q—Sample of Retainer ..............cccccccccees 56a

R—Affidavit by J. B. Crawford re. Retainer ........ 58a

S—Sworn statement by Virginia J. March

Wis BE kb nes cdc whiida dedinviciecieks bak 64a

IN THE

Supreme Court of the United States

OctToBER TERM, 1976

No.

Virornta J. Marcu, Jonn H. Lew, ARTHUR TINGLEY,

Lucy I. F. Jounson, EtizapetH A. MEssMER, Mary

Auice REKvcKI, and JoHN Morrisow, on behalf of

themselves and all others similarly situated,

Petitioners,

THe UnitTep States, Respondent.

Earu C. Bercer, Petitioner,

Tue Unitep States, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

Petitioners, above identified, pray that a writ of

certiorari issue to review the judgment and orders of

the United States Court of Appeals for the District

of Columbia Circuit, affirming the judgment and or-

ders made on remand by the United States District

Court for the District of Columbia (set out infra in

the Appendices A, C, D, F, G and H) which deprive

petitioners of substantial property without due process

of law, which are impermissible under constitutional

and procedural precepts, as detailed hereinafter. Peti-

tioners pray that on a hearing the judgment and orders

be reversed.

OPINIONS BELOW

On November 12, 1974, the United States Court of

Appeals for the District of Columbia Circuit, rendered

an Opinion (App. B) which mandates recovery of all

damages sustained by the teacher-petitioners who were

employed by the Government. That Opinion entitles

the teachers to entire compensation earned since April

14, 1966. The Opinion is published at 506 F.2d 1306,

165 U.S. App. D.C. 267; only the pertinent portions

of the Opinion are arnexed here at App. B. Portions

containing tables to be used to compute back-pay are

not pertinent to this Petition.

On remand to implement the Opinion on appeal! the

U.S. District Court for the District of Columbia ex-

pressly disallowed damages in full that accrued since

April 14, 1966, and also disallows legal interest they

are entitled to by 28 U.S.C. Sec. 2411 (App. L); and

denied their real attorney, Mr. Earl C. Berger, vir-

tually almost all of his contractual retainer fees, and

disallows all expenses. The judgment on remand is

annexed hereto insofar as the above factors are perti-

nent (App. A).

Petitioners appealed only from the above mentioned

adverse factors of the judgment made on remand. On

July 1, 1976 the U.S. Court of Appeals (for the Dis-

trict of Columbia Circuit) summarily affirmed the

judgment on remand, prior to the filing of all briefs on

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appeal, and denied a hearing thereon. That Court did

not state any reasons for such summary affirmance.

(App. F).

Orders made subsequent to remand are annexed

hereto in the Appendix, including Orders for a par-

tial stay of distribution, and Orders denying recon-

sideration. Prior to the filing of this Petition for a

Writ of Certiorar? this Supreme Court denied a mo-

tion for a partial stay of distribution. It is hoped

that this Court will now reconsider such a partial stay,

and give instructions for placing the funds pertaining

to this case in an interest bearing escrow account, to

protect all parties.

The Judgment and Orders pertinent to this Peti-

tion with dates of entry, are annexed as Appendices,

viz:

A. Judgment on remand entered June 30, 1975;

B. Court of Appeals decision of November 12, 1974,

ea at 506 F.2d 1306 and 165 U.S. App. D.C.

Order entered November 7, 1975 by remand court

striking motion and petition to amend judgment;

. Order of remand court denying partial stay pend-

ing appeal, entered March 24, 1976;

Motion for summary affirmance of judgment on

remand, filed April 16, 1976;

Order entered July 1, 1976 granting summary af-

firmance of judgment also denying motion for par-

tial stay;

Order by Court of Appeals, entered July 14, 1976,

extending time to file motion for reconsideration

and hearing en banc—extended to July 30, 1976;

ts HY A

H. Order, Court of Appeals, entered August 18, 1976,

denying reconsideration and a hearing en banc.

Thereafter, but prior to filing this Petition for a

Writ, this Court denied petitioners’ motion for a par-

tial stay of distribution.

JURISDICTION

This Court has jurisdiction for this Petition under

28 U.S.C. Sec. 1254 (App. J). This case involves

teachers employed by the U. S. Government. The U. S.

District Court had jurisdiction under 28 U.S.C. Sec.

1346 (App. K). The teachers’ salaries are governed

by P.L. 86-91 (1959) as amended by P.L. 89-391

(1966).

This Petition for certiorari was filed less than 90

days from the Court of Appeals Order of August 18,

1976 which denies reconsideration and a hearing (App.

H).

QUESTIONS PRESENTED

The following Questions are presented, based upon

the following undisputed facts: The judgment denies

petitioners entire compensation to which they are en-

titled under the decision of the Court of Appeals made

November 12, 1974; the judgment on remand also

invalidates the matured retainer made with the peti-

tioners; the remand court made its said judgment

without Notice to petitioners’ lead counsel and there-

after denied a hearing or inquiry as to these factors.

Thereafter the Court of Appeals denied a hearing

thereon, and summarily affirmed the judgment prior

to the filing of all briefs.

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The foregoing was made possible as a result of

associate counsel for plaintiffs making a stipulation

with the defendant without the authority or consent

of petitioners or their lead counsel. That stipulation

was presented to the Court without Notice to peti-

tioners’ lead counsel. Said associate counsel changed

over to the opposite side of the case after the Court

of Appeals’ decision of November 12, 1974 became

non-appealable. Cole & Groner, Esqs. (CG), associate

attorneys, were never substituted in place of Mr.

Berger, petitioners’ actual attorney.

Under the judgment all contingent retainer con-

tracts made prior to litigation are rendered invalid

only because based on a percentage fee, and for no

other reason.

The Court of Appeals declined to give any of the

petitioners a hearing and summarily affirmed prior

to the filing of all briefs, thus the situation presented

raises the following Questions :-

1. Whether petitioners have been deprived of

their property without due process of law, contrary

to Constitution Amendments V and XIV, also contrary

to specific Rule of Procedure, F.R.C.P. 19 and 60(b);

also contrary to express procedure provided for in

the judgment itself.

2. Whether attorneys associated to assist peti-

tioners’ attorney, are authorized to give away sub-

stantial portions of property belonging to petitioners

without petitioners’ consent, and also change over to

the opposite side of the case.

3. Whether it is an unauthorized exercise of judi-

cial legislation for courts to in effect repeal or amend

statutes of Congress which statutes govern public

policy, which judicial action discriminates against the

publie’s right to seek recovery of their property by

retaining attorneys on a contingent fee basis which

they otherwise could not afford to finance. Or is it the

sole province of Congress to legislate public policy?

4. Whether, where a Court of Appeals has ren-

dered its decision and un implementation of the deci-

sion the remand court deprives the successful parties

of substantial portions of their property without a

hearing or proper inquiry: Can that same Court of

Appeals summarily affirm such a judgment prior to

the filing of all briefs pertaining thereto, and thereby

alter and change its prior decision that became non-

appealable, without a hearing showing changed cir-

cumstances if any? And at the same time validate un-

authorized acts by attorneys? Does not such action

constitute judicial legislation of new public policy and

create a serious conflict of decisions of this Court and

courts in the other Circuits?

5. Whether since the Opinion of the Court of

Appeals mandates that the teachers ‘‘should receive

what has been rightfully and legally theirs since April

14, 1966’’ the right to such full and entire damages

should also include damages to repair their losses in-

curred as a result of ongoing inflation. (The dollars

they will now receive will be worth much less than

the dollars they should have been paid years before.)

CONSTITUTION AND STATUTORY PROVISIONS INVOLVED

Constitution: Amendment V that guarantees ‘‘No

person shall be deprived of his property without due

process of law.”’

“a.

Amendment XIV, the equal protection clause, which

guarantees that the ‘“‘privileges and immunities’ of

all persons shall be protected without discrimination

because of status, and that their property shall not be

taken ‘‘without due process of law.’’

Statutes: The Civil Rights Act of 1964 which aug-

ments the above Constitutional provisions.

28 U.S.C. Sec. 1254 (1) conferring jurisdiction on

this Court;

28 U.S.C. Sec. 1346(a) (2) authorizing suits for back-

pay ;

28 U.S.C. Sec. 2411 authorizes legal interest;

28 U.S.C. Sec. 2678 allows 25% attorney fees in

this case.

war Rules of Civil Procedure Nos. 19, 52, and

(b).

STATEMENT OF THE CASE

As the facts are undisputed it is appropriate to

relate them in summary fashion.

The action at bench is for back-pay by classroom

teachers for services rendered in the Overseas Depend-

ents Schools (ODS) operated by the Department of

Defense (DOD), who have been underpaid salaries

mandated by Public Law 86-91 (July 17, 1959), 74

Stat. 21 (1959), as amended by Public Law 89-391

(effective April 14, 1966) 80 Stat. 117, 20 U.S.C. See.

901 et seq. The ODS schools are located in 30 foreign

countries wherever our Armed Forces are stationed.

On the average from 7,200 to 7,500 classroom teachers

are employed each year. By reason of turnover, this

action involves the salaries of about 19,500 teachers

over the 10 years involved. The teachers are citizens

from all of the 50 States. They are university gradu-

ates with degrees of BA, BS, MA, MA+30 and Ph.D’s.

Since at least 1955, in fact even prior to 1955, the

teachers were underpaid some 27% less than their

statutory salaries. The teachers retained attorney Earl

C. Berger to represent them in 1955. Mr. Berger has

specialized in adversary litigation since 1928,* is con-

sidered also to be quite qualified concerning Govern-

ment administrative practices, and for many years has

represented the U.S. Government in suits against for-

eign nationals and foreign sovereignties to recover

damages sustained by our Armed Forces.

Mr. Berger pursued all avenues of administrative

relief without results, and thereafter was instrumental

in obtaining a remedial statute, P.L. 86-91 (1959),

however the DOD failed to honor that statute, con-

tinuing to underpay the teachers by approximately

27%. So Mr. Berger returned to Congress to obtain

further relief. Congress amended P.L. 86-91 (1959)

by PP.L. 89-391 (1966) supra, effective April 14, 1966,

mandating ‘‘salaries equal to ‘‘salaries for similar

services’? in the United States school districts. But

again, the DOD refused to pay such statutory salaries.

This stubbornness and discrimination by the DOD

1 Mr. Berger was admitted in the Courts of New York in 1928,

and also the Federal Second Circuit; U.S. Supreme Court, 1936;

California courts, 1937; 9th Federal Circuit 1941 where he tried

52 cases for the Government in the anti-Nazi Program ; the HICOG

Courts, W. Germany, 1955; U.S. Military Courts, 1955; Conseil

Juridique, Paris, France, 1958; U.S. Court of Claims, 1965, and

in various other jurisdictions on motion; U.S. Court of Appeals,

D.C. Cire. 1976.

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required four separate actions, including appeals, be-

sides two special Acts of Congress. Finally, on Novem-

ber 12, 1974, the U°S. Court of Appeals for the District

of Columbia Circuit, awarded the teachers

‘“. . . In addition to an injunction against the

condemned practices, they should receive what has

been rightfully and legally theirs since April 14,

1966 . .. Moreover, none of the usual justifications

for barring retroactive application of a judicial

decision apply to this case. See Linkletter v.

Walker, 381 U.S. 618 (1965); James v. United

States, 366 U.S. 213 (1961) ; Comment, Legal As-

pects of the Use of ‘Ordinary Simple Interest’,

41 U. Chi. L. Rev. 141, 150-51 (1972).”

a: (1972).”” (App. B

That decision by the Court of Appeals (A

th pp. B),

March et al. v. United States (D.C. Cir. 1974) is ~

ported at 506 F.2d 1306, 165 U.S. App. D.C. 267.

However, on remand the District Court ruled that

in hundreds of instances where a teacher’s back pay

which accrued during the more than 4 years pending

litigation aggregated more than $10,000 per teacher,

all sums over a total of $10,000 could not be recovered

even by supplemental procedures, and the judgment

requires all teachers to execute full and final releases

for all claims:

‘“‘“G. No ODS teacher shall recover more than

$10,000 in damages . . . This section shall prevail

apa og any other provision in this Judg-

ment ... she shall be entitled to recover no more

than $10,000 damages from April

of this J edguent.* eT

/s/ June L. Green, Judge (App. A, p. 7a)

The judgment omits and disallows legal interest al-

though petitioners are entitled to interest under 28

U.S.C. Sec. 2411 (App. L).

In addition, the Court ruled that Mr. Berger, peti-

tioners’ lead counsel, could not have either his fees

as provided in the retainer agreement made prior to

suit (App. Q) because based upon a percentage (and

for no other reason) although his 25% contingent fees

are authorized by 28 U.S.C. Sec. 2678 (App. M). The

Court whimsically reduced same to 2% instead of 25%,

(App. A, pp. 10a, 1la) and disallowed reimbursement

of expenses incurred as provided in the retainer, al-

though the teachers themselves submitted sworn state-

ments urging the Court to let them honor their contract

for fees and expenses out of the fund Mr. Berger suc-

ceeded in obtaining for them. No motion was made to

shift fees and expenses onto the wrongdoer, which

would have been justified because of the defendant’s

unremitting obstreperous misconduct, requiring the

teachers to engage in costly, complex litigation in order

to vindicate public policy statutes enacted by Congress

(P.L. 86-91 as amended by P.L. 89-391 of 1966). The

Court summarily struck (App. C) the teachers and Mr.

Berger’s motion and petition which included the teach-

ers’ sworn statements requesting the Court to iet them

honor their contract, and thus they were denied a

hearing or proper inquiry. The Order striking that

motion and petition is predicated upon a bare Conc'u-

sion, wholly unsupported by Findings required unacr

F.R.C.P. Sec. 52 (App. N). That Order notes that

the motion is ‘‘untimely”’ ‘‘not within F.R.C.P. 60(b)

and that the relief sought ‘‘is precluded by law”’

(App. C).—bare Conclusions.

Under F.R.C.P. 19 (App. N) both Mr. Berger

and the teachers must be afforded a hearing on any

judgment that affects them. In addition, the J udg-

ment, itself, retained jurisdiction for two years (until

at least July 1, 1977) to hear any and all matters per-

taining to same, and was quite timely:

“8. Retention Of Jurisdiction (par. VI .15

App. A) The Court recognizes that onal of

detail will arise . . . This Court shall retain juris-

diction over this matter for the resolution of any

disputes, and other implementation of this J udg-

ment and the decision of the Court of Appeals

—— and 2 — such motions or other

ers as either party shall duly put before it.’’

(App. A, p. 1la-12a) ne _

Nevertheless, the Court summarily struck petition-

ers’ justified motion to amend and correct the J udg-

ment, depriving them of their property and depriving

them of their right to a hearing, their day in court

contrary to due process under law.

It is appropriate to explain that while Mr. Berger

is a duly admitted attorney in various other jurisdic-

tions, not being a resident practitioner in the District

of Columbia, he could not technically be shown on the

pleadings as ‘‘attorney of record”’ for plaintiffs, only

as ‘‘Of Counsel’’. Therefore Mr. Berger arranged with

the local Washington, D.C. law firm of Cole & Groner

Esqs. (CG) to be shown as attorneys of record; how-

ever, Mr. Berger was chief counsel and lead counsel

throughout.

CG authored a written agreement for 50% of Mr.

Berger’s fees, and added that

‘*4. Neither CG (meaning Cole & Groner

(meaning Earl C. Berger) shall, without can

written consent of the other, enter into any settle-

ment of the litigation.”’

In spite of this caveat, CG, without the teachers’

authority and consent, and without Mr. Berger’s con-

sent, entered into a stipulation whereby substantial

portions of the teachers’ damages (already adjudi-

cated by the Court of Appeals) were remitted and

given to the adjudged wrongdoer—the defendant, by

forgiving payment of fully accrued damages and for-

giving legal interest, and also vitiating Mr. Berger’s

matured retainer contract for fees and expenses, re-

ducing fees to 2% instead of 25% and excluding all

expenses, same to be absorbed by Mr. Berger out of

the ‘2%’, and then share that whimsical amount with

CG.

Mr. Berger’s expenses, at this point, were far from

liquidated, because it was recognized that it might

take another two years to compute each teacher’s en-

titlements. As 19,500 teachers are involved, and basic

salaries varied in each of the 9 years prior to judg-

ment, 157,500 separate computations would have to

be made. Such computations would require ascertain-

ment of withholding taxes to be deducted, deduction

of FICA, retirement contributions, deductions of rata-

ble portions of attorney fees and expenses, deduction

of insurance premiums, etc.

On learning of this unauthorized stipulation Mr.

Berger objected strenuously, but CG admonished Mr.

Berger not to contact the attorneys for the defendant,

on the ground that he was not technical attorney of

record, and to stay away from the Department of

Justice without suggesting a valid reason. Mr. Berger

remained in Washington for the purpose of letting

the Court know what happened. However the defend-

ant obtained two continuances on the ground of fu-

nerals defendant’s attorneys wished to attend. A third

specific date for hearing was left open, with assurances

that Mr. Berger would be given Notice, but Mr. Berger

was not given notice and the stipulations between CG

and defendant’s attorneys were presented and ap-

proved in his absence. At the time of this hearing the

defendant contended that Mr. Berger’s retainer was

outlawed by the case of Pete et al. v. United Mine

Workers’, ete., (D.C. Cire. 1975) 517 F.2d 1275, and

the Court agreed, saying

“The Court: I don’t see somehow .. . how the

Court can go on a basis of percentages on the basis

of these ecases—Pete and Mine Workers’, etc.’’

(Transcript, June 25, 1975, p. 2)

thus 25% by way of fees, plus expenses, was changed

to 2% less expenses incurred and to be incurred to

compute the teachers’ thousands of separate compu-

tations.

Pete, supra, was decided on entirely different

grounds, namely, the petitioning attorneys did not

litigate that case and establish the defendants’ lia-

bility which resulted in the fund. Other, prior attor-

neys did that. The petitioning attorneys were late-

comers, who boarded the salvaged ship after it was

saved by prior attorneys. The petitioning attorneys

were therefore limited to an hourly fee for simply

distributing the Miners’ money to them. Moreover, the

petitioning attorneys procured illicit 33% ‘‘contin-

gent retainers”’ from ill, disenfranchised, illiterate coal

miners. Hence the Court in that case merely invoked

its inherent equity powers to do equity. Whereas in

the case at bench the retainer agreement was made

prior to suit, between highly educated university grad-

uates holding degrees of BA, BS, MA, MS, MA+30

and Ph.D.’s, who want to honor their contract.

In addition to giving away their cestuts’ property

without authority or consent of the cestuis, CG changed

over to the opposite side of the same case. When Mr..

Berger moved the Court to be heard in the premises,

CG interposed opposition which resulted in the Court

striking his motion. When Mr. Berger perfected an

appeal therefrom, CG, without the authority or con-

sent of the teachers, filed a Notice of Appearance “‘for

appellees, the teachers’’ (sic) ; and before all briefs

were filed, CG, alone, (without the real appellee, the

defendant), moved for summary affirmance of the

questioned judgment, without further proceedings

(App. E)* and their motion was granted (App. F)

without a hearing and without indicating any reason

for such summary affirmance. When Mr. Berger moved

the Court of Appeals for reconsideration and a hear-

ing CG again opposed same, and on August 18, 1976

the Court of Appeals denied Berger’s said motion,

including a request for a partial stay of only so much

of the fund that represented retainer fees.

By reason of the premises, these undisputed disposi-

tive facts and governing law, your petitioners here-

with present this Petition for a Writ of Certiorari, to

the end that substantial, novel questions of law be set-

tled; to the end that serious conflict of decisions of this

and other Courts be corrected; to the end that judicial

legislation be corrected; to the end that once a Court

2(G’s motion for summary affirmance (App. E) was based on

the sole ‘‘Argument’’ that the District Court did not abuse its

discretion when it struck the petitioners’ Motion to Amend Judg-

ment.

of Appeals’ decision and opinion has become non-

pealable, that the same Court ought not sanction ~A

approve of the alteration of its prior decision unless

on a showing of changed circumstances; and to the end

that officers of this Court (here CG) be deterred from

giving away their cestuis’ property and also change

over to the opposite side of the same case.

Under F.R.C.P. 19, Mr. Berger, as well as his

clients, are indispensable persons and parties to any

proceeding under which they are affected by the judg-

ment. Bry-Man’s Inc. v. Stute (5th Cire. 1963) 312

F.2d 585 makes Mr. Berger an indispensable party con-

cerning his fees. The decision conflicts with Doylo v.

Veterans Admn., 501 F.2d 817 (1974, D.C.Cire.) which

authorizes 25% attorney fees for advocating claimants’

just claims against the Government—and not only for

past services but authorizes fees for future benefits as

well. Here Mr. Berger claims no fees for the future

benefits the teachers will receive in subsequent years.

Burich v. United States, 170 Ct. Cl. 139, clearly holds

that in all cases where back-pay continues to accrue

pending suit, all such damages, entire damages, are

recoverable. Burich is based upon this Court’s denial

of certioriari (373 U.S. 392) (1963) in the case of

Friedman v. United States, 310 F.2d 181 ( 1962). Ge-

sellschaft v. Brown, 78 F.2d 410, 412, 64 U.S. App.

D.C. 357 (1935) holds that where an attorney has acted

for a party he cannot thereafter assume a position hos-

tile to the client in the same matter. The Petition of

Trinidad Corp., (2d Cire. 1955) 229 F.2d 423, 450,

holds that an attorney cannot stipulate to reducing his

client’s claims without the client’s consent. Preveden

v. Hahn, (S.D. N.Y. 1941) 36 F.Supp. 952 holds that

an attorney cannot do so without the client’s express

authority (36 F. Supp. 952). United States v. Preston

(9th Cire. 1965) 352 F.2d 352 authorizes a stay of dis-

tribution of funds pending appeal—wherein the attor-

ney sought 25% fees. (citing Supreme Court cases,

Cohen v. Beneficial Loan, 337 U.S. 541, 546, 69 S. Ct.

1221, 93 L. Ed. 1528 and Meddaugh v. Wilson, 151 U.S.

333, 14 S.Ct. 356, 38 L.Ed. 183. Freeman v. Ryan, (1968

D.C.Cire.) 408 F.2d 1204, approves of placing funds, to

be distributed, in an escrow interest bearing account,

whereby both the distributees and their attorneys are

not harmed, but are aided by the interest being earned.

In the case at bench Mr. Berger’s request for placing

undistributed portions of the fund in an interest bear-

ing account was rejected by the remand court (App.

D) and the Court of Appeals (App. F). In Emeny,

et al v. United States, Slip. Op., December 17, 1975)

the Court of Appeals awarded the successful claim-

ants’ attorney fees and all expenses amounting to

$341,346 incurred to obtain a judgment for less than

such expenses in a judgment for $221,880. And in the

case of Alyeska v. Wilderness Pipeline, etc., this Su-

preme Court reiterated the long honored rules that

clients and attorneys are free to negotiate fees, and

that courts may not invade the province of Congress

which alone can legislate public policy pertaining to

attorneys’ fees,—44 L. Ed 2d 141. (1975).

REASONS FOR GRANTING THE WRIT

1. The Judgment Deprives Petitioners of Their Property Without

Due Process of Law.

This Court and other courts have uniformly ruled

that a hearing and ‘“‘proper inquiry”’ are indispensable

predicates to any judgment, without which ‘‘ No per-

son... shall be deprived... of property, without due

process of law; .. .’’ Amendments V and XIV. The

judgment in this case cannot be squared with these

Constitutional guarantees, nor with the Rules that

augment these guarantees, F.R.C.P. 19 (App. N) and

Rule 60(b) (App. P.), which specify that all persons

having an interest in or affected by a judgment are

entitled to a hearing and proper inquiry. These prin-

ciples are fundamental. ‘‘A judgment is void unless a

reasonable method of notification is employed and a

reasonable opportunity to be heard afforded to persons

affected.’ (Restatement, Judgments, Ch. 2, See. 6.)

Amendment XIV requires universality so that“...

the privileges and immunities of citizens of the United

States ...’’ shall not be abridged. The Civil Rights Act

of 1964 augments this guarantee against discrimina-

tion for any reason.

The Court of Appeals opinion and decision of No-

vember 12, 1974 in this case (on prior appeal No. 72-

1816, reported at 506 F.2d 1306, App. B) awarded the

teachers full and entire compensation due them since

April 14, 1966:

‘‘... the teachers had a statutory right to receive

the pay that they now demand as damages...

they have suffered a recognizable legal injury. In

addition to an injunction against the condemned

practices, they should receive what has been right-

fully theirs since April 14, 1966 .. . the right to

recover the damages from the party in default is

implied. . . Moreover, none of the usual justifica-

cations for barring retroactive application of a

judicial decision apply to this case. Linkletter

v. Walker, 381 U.S. 619 ( 1965) ; James v. United

States, 366 U.S. 213 (1961) ; Comment, Legal As-

pects of the Use of ‘Ordinary Simple Interest’,

41 U. of Chi..L. Rev. 141, 150-151 (1972).”... -

We hope this decision will finally resolve a dis-

ute that has already lasted too long. . .”’ (App.

B at pp. 36a-37a)

The case at bench was commenced November 20,

1970. It required 4 years and some months to reach a

non-appealable decision, supra. The judgment on re-

mand, to implement that decision was made June 27,

1975; during that long period additional damages ac-

erued, in many instances to about 100% more than

when action was commenced in 1970. However the

judgment deprives petitioners of all damages over

$10,000:

‘Judgment Of Liability. (G). ‘‘No ODS teacher

shall recover more than $10,000. . . notwithstand-

ing any other provision of this judgment. . .”’

(App. A, p. 7a)

and also deprives them of legal interest which they

are entitled to by 28 U.S.C. Sec. 2411 (App. L)

‘|. . a suit for compensation due and payable

periodically is, by its very nature, a ‘continuing

class’ which involves multiple causes of action,

each arising at the time the Government fails to

make the payment alleged to be due. Friedman v.

United States, 159 Ct. Cl. 1, 310 F.2d 181 (1962),

cert. denied, 373 U.S. 932 (1963); Cannon v.

United States, 137 Ct. Cl. 104; 146 F. Supp. 827

(1956).”°—John Burich v. United States, 177 Ct.

Cl. 139, 143.

The judgment was made without Notice to petition-

ers’ lead counsel who was in charge of this case. When

he learned of same he timely moved and petitioned

the court for a hearing to inquire into the matter of

remitting the said accrued compensation to the ad-

judged wrongdoer, but the Court struck that motion

and petition summarily (App. C).

That judgment made in the absence of Mr. Berger,

lead counsel throughout, also invalidates his matured

contingent retainer on the sole ground that it is based

upon a percentage, payable by the teachers out of the

fund Mr. Berger created, even though the retainer is

free of the slightest suggestion of any inzquitable fac-

tors, and said retainer fully conforms with 28 U.S.C.

Sec. 2678 (App. M). The teachers presented sworn

statements advising the Court that they indeed wished

to honor their retainer (App. Q, and App. R & S).

But the Court summarily struck same (App. C) and

thereafter the Court of Appeals summarily affirmed

the judgment and Order striking the motion and peti-

tion for a hearing (App. E). Thus both the teachers

and Mr. Berger were deprived of their property with-

out a hearing or proper inquiry. Nor will the Consti-

tutional guarantees, the statutory guarantees and the

Rules providing for due process, be made in future

situations if this judgment is allowed to stand (Shelley

v. Kraemer, 334 U.S. 1).

Mention should also be made of the fact that the

remand court expressly retained jurisdiction for two

years, until July 1, 1977, to hear and resolve all mat-

ters that could arise under the interlocutory judgment

(App. A, p. 15)* nevertheless summarily struck the

**“VI (8) Retention Of Jurisdiction. The Court recognizes that

questions . . . will arise in the enforcement and administration of

this Judgment. . . . This Court shall retain jurisdiction over this

matter for the resolution of any disputes, and other implementa-

tion of this Judgment and the decision of the Court of Appeals

herein, and to consider such motions or other matters. . . .’”’ (App.

A, pp. 1la-12a and App. A p. 8-a).

motion and petition for a hearing pertaining to ac-

crued damages, legal interest and attorney’s fees.

2. The Decision Below Which Vitiates the Contingent Retainer

Solely Because It Is Based on a Percentage Fee, Constitutes

Judicial Legislation, Establishing New Public Policy, Although

Only Congress Can Legislate Public Policy.

Congress enacted 28 U.S.C. Sec. 2678 establishing

public policy for contingent fees in cases brought

against the United States (App. M) allowing fees of

25%. The retainer in this case was made prior to liti-

gation (see App. Q, example of retainers signed by

some 3,000 teachers for 25% and reimbursement of ex-

penses incurred.) No question was raised as to the fair-

ness of the retainer contract. The teachers advised the

Court that they wished to fully honor their retainer

contract supra, sworn statements presented to the

Court, but the Court summarily struck same (App. C).

The Court fixed fees at 2%, in lieu of 25% plus ex-

penses. Its judgment requires counsel to absorb all

expenses for this years long litigation out of the 2%.

This occurred in the absence of Mr. Berger, the only

party to the retainer, and was premised solely on the

fact that any retainer based on a percentage of the

salvaged property is invalid:

‘‘The Court: I don’t see somehow . . . how the

Court can go on a basis of percentages on the basis

of these cases—Pete and Mine Workers, etc.’’

—Transcript of June 25, 1975, p. 2.

Pete was decided on wholly different grounds,

namely, because the retainer in that case (reported

at 517 F.2d 1275) (D.C. Cire. 1975) was saturated

with inequitable, unsavory conduct on the part of the

attorneys who obtained 33% ‘‘contingent’’ retainers

from ill, disenfranchised, illiterate coal miners AFTER

the litigation had already been won by OTHER,

PRIOR attorneys; hence the Court was merely invok-

ing its powers to equity to correct an unconscionable

situation (but allowed the latecomers an hourly fee for

collecting the already created fund). As the Court of

Appeals in the case at bench summarily affirmed the

remand court’s misinterpretation, invalidating the re-

tainer in this case only because based on a percentage,

unless this Court corrects that decision it will create

an unjustified conflict of decisions while authenticat-

ing the taking of property without a hearing or in-

quiry and the lack of due process. In addition, new

public policy will have been judicially legislated by in

effect repealing Congress’s statute, 28 U.S.C. Sec. 2768,

which establishes public policy governing percentage

fees in actions against the United States government

(App. M).

When this Court decided Alyeska Pipeliize etc. v.

Wilderness Society, et al, (May 12, 1975) 421 U.S. 39,

44 L. Ed. 2d 141, this Court reviewed the whole field

and subject of attorneys fees and pointed out that at-

torneys may charge clients such reasonable fees and

costs, as may be in accordance with general usage in

the respective States, or as may be agreed upon be-

tween the parties. (Trustees v. Greenough, 105 U.S.

527 (1881)). In Huskisson v. Hawaii Dredging (VII

Cire. 1954) 212 F.2d 219-226, the Circuit Court

awarded a straight line percentage fee to be paid out

of U.S. Government funds, and to pay laborers their

full salaries as regulated by Federal statute. In Doylo

v. Veterans Admn. (D.C. Cire. 1974) 501 F.2d 817, the

Court allowed the attorney 25% fees in a class action,

not only for past services but also for services in the

future. In the case at bench the teachers will benefit

not only for salary losses in the past, but will pay no

attorney fees for benefits to be enjoyed in the future.

Prior to filing this Petition for a Writ Mr. Berger

asked this Court to partially stay distribution; only so

much of the fund that should cover his fees and ex-

penses, but the stay was not granted. It is hoped that

this Court will now reconsider such a stay pending

review.

3. The Affirmance of the Judgment Made on Remand Validates

Unauthorized Acts on the Part of Aitorneys Who Exceeded

Their Authority and Who Also Changed Over to the Opposite

Side of the Same Case.

Mr. Ear] C. Berger, petitioners’ lead counsel, their

only legal counsel since 1955, not being a resident prac-

titioner in the District of Columbia, could not be shown

as technical attorney of record for plaintiffs, therefore

arranged with the local Washington, D.C. law firm of

Cole & Groner, Esqs. (CG) to be shown as attorneys of

record, with Mr. Berger shown throughout as “Of

Counsel.’’ CG were not made parties to the retainer

contract; they never saw or consulted with the teach-

ers. CG kindly acknowledged Mr. Berger’s role in the

case by their letter following the favorable decision on

the first appeal. See App. I. However, thereafter CG

stipulated with the wrongdoer to remit to the wrong-

doer substantial portions of the teachers’ accrued back

pay. CG did not have the teachers’ authority to do

this, or to remit legal interest, or to virtually rescind

Mr. Berger’s retainer to which they are not parties.

They did this clearly contrary to their own agreement

in writing, which they authored, not to settle any part

of the litigation without prior written authority (su-

pra, pp. 11-12). After the teachers authorized only Mr.

Berger to appeal from the judgment on remand, CG,

without any authority, filed a Notice of Appearance as

attorneys for appellees (sic), the teachers. A strange

thing. The teachers wanted to protect their property

by their appeal; not the opposite. And thereafter CG

opposed every ancillary motion made by Mr. Berger

in support of the appeal; and to top matters off, CG

alone, without the real appellee (the defendant), moved

for summary affirmance of the judgment (App. E).

This strange situation can only be corrected by this

Court. Officers of the Court should not be encouraged

to indulge in wholly unauthorized acts (remit clients’

property: Ricketts v. Pennsylvania RR (2d Cir. 1946)

153 F.2d 759, 769; United States v. Beeke, 180 U.S. 527

(1901) ), and also change over to the opposite side of

the same case. Gesellschaft v. Brown (1935), U.S.App.

D.C, 357, 78 F.2d 410, 412.

An additional reason is suggested: because petition-

ers have been deprived of their statutory salaries for

sO many years, it would be just and meet for this Court

to also rule that because of the substantial prejudice

suffered by not being paid as their salaries became due

and payable, the dollars they will ultimately be paid

will have been rendered considerably less valuable by

reason of ongoing, mounting inflation, and therefore

that factor should be taken into consideration so that

they may realise entire compensation. The defendant

had the use of petitioners’ dollars for all the years in

question.

CONCLUSION

For these reasons a writ of certiorari should issue

to review the judgment.

Respectfully submitted,

EARL C. BERGER

499 Hamilton Avenue

Palo Alto, California 94301

Attorney and Counsel for Petitioners

Of Counsel:

JOHN W. BERGEN

Plunkett Street

Lenox, Mass. 01240

APPENDIX

APPENDIX A

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 3437-70

Vincinia J. Manca, et al., Plaintiffs,

Unrtep States or America, Defendant.

Judgment

(June 30, 1975)

This cause having been remanded to this Court by the

United States Court of Appeals for the District of Co-

lumbia Circuit for further proceedings consistent with its

Opinion in the Appeols herein which were docketed in that

Court as Nos. 72-1860 and 72-2062; the parties having

jointly submitted to the Court this Judgment as one which

most faithfully and effectively implements the Opinion of

the Court of Appeals with due and just regard to the

interests and rights of all parties, including all members of

the class of Pluintiffs; the Court having held a bearing

thereon and being fully advised in the premises; and hav-

ing concluded after full consideration that this Judgment

should be entered;

Ir Is| Tuererore, Tois 27TH Day or June, 1975, Ap-

JUDGED, Ox>eRED AND Decreep, as follows:

DEFINITIONS

1. As used herein:

A. ‘‘Act’’ shall mean the Overseas Teachers Pay and

Personnel Practices Act, Public Law 86-91, 73 Stat. 213,

as amended, effective April 14, 1966, by Public Law 89-391,

80 Stat. 117, Title 20, U.S.C. §§$901 et seq.

B. ‘‘ODS teacher’’ shall mean those (and ‘‘ODS teach-

er’’, one of those) who were employed in positions in the

Overseas Dependents Schools administered by the Depart-

ment of Defense at any time on or after April 14, 1966, the

compensation and rates of compensation of which were

governed by the Act; and shall include those duly desig-

nated to assert the legal rights of any ODS teacher.

C. ‘‘Stateside teachers’’ shall mean those (and ‘‘State-

side teacher’’, one of those) who were employed in posi-

tions of a level of duties and responsibilities comparable

to ODS teachers in urban school jurisdictions in the United

States of 100,000 or more population, as provided in the

Act.

D. ‘‘Plaintiffs’’ shall mean all ODS teachers with the

exception of Rocco A. Trecosta, Aida M. Guevarra, Llewel-

lyn Lieber and Elizabeth B. Dozier.

E. ‘‘Plaintiffs’ counsel’’ shall mean Cole and Groner,

P.C., 1730 K Street, N.W., Washington, D.C. 20006, unless

otherwise specified herein.

F. ‘‘Defendant’’ shall mean the United States of

America.

G. The feminine shall include the masculine.

H. ‘‘Each’’ or ‘‘particular’’ School Year, educational

level, Class, Step, or other element of damages or the

computation of damages shall include portions thereof, and

dence and require pro rata adjustments for any changes

pertinent to an individual ODS teacher.

I. The 1965-1966 School Year shall be computed as one-

fifth of a School Year, so that computations may be effec-

tive as of April 14, 1966, the effective date of the Act; thus

damages for the 1965-1966 School Year shall be one-fifth

of the damages computed for that School Year in accord-

ance with this Judgment.

J. ‘* Years of teaching experience’’ shall be the number

of years of teaching experience as specified by the ODS

teacher in her application for employment, subject to veri-

fication by Defendant for any year for which it has a rea-

sonable question based on the nature of the experience

claimed that the said experience would normally be accept-

able as teaching experience.

II.

JUDGMENT OF LIABILITY

2. To conform to the Opinion of the Court of Appeals,

Defendant shall compensate each ODS teacher, in accord-

ance with her compensation Class and educational level, for

each School Year as provided in this Section:

A. At a rate of basic compensation equal to the average

of the range of rates for Stateside teachers for the same

Schoo] Year;

B. At the Step for each ODS teacher most closely com-

parable to that into and for which a Stateside teacher of

identical or most closely comparable years of teaching ex-

perience would have been placed and compensated; and

C. For ODS teachers compensated on a daily rate, upon

the basis of a 190-day School Year and rates paid to State-

side teachers for that same School Year.

3. As damages for n. having compensated ODS teach-

ers in the past in accordance with Section 2 of this Judg-

ment, Defendant shall pay each ODS teacher in accordance

with the rates of basic compensation appearing in the

Tables described in Subsection A of this Section, subject

to the conditions set forth in Subsection B of this Section,

as illustrated by the examples in Subsection C of this

Section.

A. The Tables attached hereto and incorporated herein

show for each School Year the rates of basic compensation

which were in fact peid to ODS teachers and those which

should have heen paid (i.e., those which were paid to

Stateside teachers during that School Year and to ODS

teachers during the following School Year). Each Table

consists of a set of four lanes, designated and showing the

following:

Table Educational Attainment

A Bachelor’s Degree

B Master’s Degree

C Master’s Degree

Plus 30 Hours Credit

D Doctor’s Degree

Table I shows the rates which were paid in the 1965-

1966 School Year; Tables II-XI show the following:

Rates Which Rates Which

Should Have Been Were Paid in

Table Paid in School Year School Year

II 1965-1966 1966-1967

Ill 1966-1967 1967-1968

IV 1967-1968 1968-1969

V 1968-1969 1969-1970

VI 1969-1970 1970-1971

Vil 1970-1971 1971-1972

Vill 1971-1972 1972-1973

Ix 1972-1973 1973-1974

X 1973-1974 1974-1975

XI 1974-1975

B. The maximum number of years of teaching experi-

ence to be allowed for each ODS teacher for each School

Year shall be as follows (to correspond to the ceilings

which were, the data showed, being observed for Stateside

teachers) :

1. For School Years 1965-1966 through 1970-1971, in-

elusive, 7 years. ;

2. For School Year 1971-1972, 8 years.

3. For School Years 1972-1973 through 1974-1975, in-

clusive, 10 years.

C. To compute damages for each School Year, the

compensation which was actually paid shall be subtracted

from the compensation which should have been paid as

specified in Section 2 of this Judgment.

The following illustrations assume an ODS teacher with

a Bachelor’s Degree in Class I. An ODS teacher who was

employed in School Year 1966-1967 and had no previous

teaching experience and thus was and should have been

placed in Step 1 should have received $5,340 (which was

actually paid in Step 1 in School Year 1967-1968), but

actually received $5,075, and is thus entitled to $265 in

damages for that School Year; had she been employed in

School Year 1967-1968, she would have been placed in

Step 2, and should have received $5,955 (which was actu-

ally paid in Step 2 in School Year 1968-1969), but she

was actually paid $5,570, so that she is entitled to $385

in damages for that School Year.

An ODS teacher who was employed in School Year

1968-1969 and was placed in Step 3 should have received

$6,630 (which was actually paid in Step 3 in School Year

1969-1970) but actually received $6,195, and is thus en-

titled to $435 in damages for that School Year; had she

been employed in School Yeor 1969-1970, she would have

been placed in Step 4 and should have received $7,395

(which was actually paid in Step 4 in School Year 1970-

1971), but she was actually paid $6,885, so that she is

entitled to $510 in damages for that School Year.

An ODS teacher who was employed in School Year

1971-1972 and had ten years teaching experience should

have been placed in Step 9 and should have been paid

$9,560 (which was actually paid for Step 9 in School

Year 1972-1973), but was in fact placed in Step 3 and paid

$7,585, so that she is entitled to $1,975 in damages for

that School Year; had she n employed during School

Year 1972-1973, she should Nave been placed in Step 10

and received $10,165 (which was actually paid at Step

10 in School Year 1973-1974), but was placed in Step 4

and received $8,085, so that she is entitled to $2,080 in

damages for that School Year.

D. For an ODS teacher receiving damages for any

School Year pursuant to either or both of the preceding

Sections who was entitled during that School Year to any

differential or allowance dependent upon or determined

by her rate of basic compensation, by way of illustration

a differential paid as a percentage of ‘he rate of basic

compensation, additional damages shall be computed for

that School Year in the additional amount of differentials

of allowances which she would have received upon the

basis of the amounts described in either or both of the

preceding Sections.

E. For ODS teachers paid on a daily rate, the amount

of damages per day shall be computed upon the basis of

the rates paid pursuant to Subsections A and B of this

Section divided by 190.

F. For all ODS teachers receiving damages by virtue

of any of the foregoing, appropriate adjustments shall

be made, as applicable, with respect to: (1) Civil Service

Retirement, (2) Social Security (FICA), (3) Federal Em-

ployees Group Life Insurance, (4) Federal Income Tax

Withholdings, and (5) any and all other similar or re-

lated rights and obligations.

G. No ODS teacher shall recover more than $10,000 in

damages pursuant to this Judgment. This Section shall

prevail notwithstanding any other provision of this Judg-

ment; so that if the computation of damages for an ODS

teacher under the provisions of this Judgment shall ex-

ceed $10,000, she shall be entitled to recover no more than

$10,000 damages from April 14, 1966 to date of this Judg-

ment.

ITI.

PRocEDURE FOR PAYMENT oF Damaces

4. The procedure for the payment of damages shall be

in accordance with this Section.

A. Defendant shall (i) obtain the records necessary to

complete a computation of the amount due under this

Judgment, (ii) complete such computation, and (iii) as

promptly as practicable upon the completion of such com-

putation send a Notice, certified mail, return receipt re-

quested, similar in substance and form to that appear-

ing in Appendix A attached hereto and incorporated

herein, with a copy to Plaintiffs’ counsel, in the case of

each ODS teacher who falls within any of the following

Subsections, as provided below.

1. For ODE teachers whose names appear on the pay-

rolls of ODE teachers which include June 1, 1975, De-

fendant shall complete the computations and send the

Notices within four months after the date of this Judg-

ment.

2. For ODS teachers whose names appear on the pay-

rolls of ODS teachers which respectively include May 1,

1966 and every November 1 and May 1 thereafter to and

including November 1, 1974 (other than those ODS teach-

ers falling within Paragraph 1 above), Defendant shall

obtain the records and commence the computations as

promptly as practicable, shall endeavor to complete such

computations and send the Notices on as regular a basis

as possible, and shall complete such computations and

send such Notices within eighteen months after the date

of this Judgment.

3. For any ODS teacher or person claiming to be an

ODS teacher by or on behalf of whom Defendant has

received information enabling Defendant to obtain her

records and compute the amount due her under this Judg-

ment (information such as her current name and address,

the name under which she was an ODS teacher, and her

Social Security Number) provided that such information

is received by Defendant on or before July 1, 1977, De-

fendant shall comply with Paragraph 2 above.

B. In such computations the number of years of teach-

ing experience shall be as specified by the ODS teacher

in her application for employment, unless Defendant ob-

jects in her application for employment, unless Defendant

objects thereto for any year because it has concluded

after investigation that the nature of the experience

claimed woyd not normally be acceptable as teaching ex-

perience for Stateside teachers, and in such cases the

Notice specified hereinafter shall include the number of

years claimed on the application, the years objected to

by Defendant and the basis upon which each such objec-

tion is made.

C. If in the case of a person claiming to be an ODS

teacher the records do not identify such person as an ODS

teacher, Defendant shall promptly notify Plaintiffs’ coun-

sel as to the records which have been searched and ob-

tained and the information indicated therein; and shall

promptly notify such person that she has not been identi-

fied as an ODS teacher. Within three months after receipt

of such notification she may submit to the Department

of Defense, Office of Overseas Dependents Education,

Washington, D.C. 20301, with a copy to Plaintiffs’ counsel,

Isaac N. Groner, Esquire, Cole and Groner, P.C.. 1730 K

Street, N.W., Washington, D.C. 20006, such proofs as she

has of her entitlement as an ODS teacher to damages

pursuant to this Judgment. Upon such submission the

parties shall meet and attempt to resolve the matter.

D. If the ODS teacher shall execute and submit the

Certification and Release attached to the Notice, Plain-

tiffs’ counsel shall file, for signature by the Court, Judg-

ment in the form prescribed in Appendix B attached

hereto and incorporated herein. Defendant shall promptly

thereafter make the payments in the amounts and to the

recipients specified in the Notice as prescribed in this

Judgment.

E. If the ODS teacher has any objection, she shall

within three months after receipt of her Notice file in

writing a specification of the particular objection or

objections and a submission in as much detail as possible

of the facts and proof in support thereof, filing the same

by certified mail in duplicate with copies sent to Isaac N.

Groner, Esquire, Cole and Groner, P.C., 1730 K Street,

N.W., Washington, D.C. 20006; and Department of De-

fense, Office of Overseas Dependents Education, Wash-

ington, D.C. 20301. Upon any such filing, the parties shall

endeavor to resolve the matter. If they are unable to re-

solve it, the matter shall be submitted to this Court for

a determination of the extent of liability.

Upon the disposition of the objection, the Court shall

enter Judgment for the individual ODS teacher involved

in the form prescribed in Appendix B attached hereto

and incorporated herein.

F. Within sixty days after its mailing the first Notice

referred to in the preceding Section, Defendant shall

notify Plaintiffs’ counsel of each of the Notices which

10a

have been returned without being received by the ad-

dresses; and each thirty days thereafter, Defendant shall

notify Plaintiffs’ counsel of each of the additional No-

tices which had been returned without being received by

the addressee. Upon ascertaining or receiving notice of

a more current address, Defendant shall again send the

Notice to the ODS teacher, and upon any receipt of a

Notice the procedures provided in this Section shall be

followed.

IV.

CounsEL FEgEs

5. Upon the basis of all relevant factors, as appearing

in the record herein at the hearing before this Court on

June 25, 1975 and in the written submissions of the

parties, including the value to the class of the services

rendered, the number of hours of professional services

which have been rendered, the unique and unprecedented

nature of the legal issues involved in this case and their

complexity and difficulty, as reflected in the necessity

for appeals and the prolonged history of this entire matter

including prior litigation on behalf of ODS teachers di-

rectly related hereto, the fact that prior Court decisions

had been adverse to Plaintiffs’ position and this is the

action in which all of Plaintiffs’ rights were established,

the skill and expertise of the principal attorneys, the fact

that no compensation has been received by Plaintiffs’

counsel, was the fact that the members of the class were

notified that they would be represented by Plaintiffs’

counsel in accordance with the Order for Maintenance of

Class Action and Approving Notice of Pendency thereof,

entered by this Court on January 7, 1972, and only three

members of the class elected not to be represented by

Plaintiffs’ counsel as their attorneys, the contingent na-

ture of the representation and the reliance by counsel

thereon, and the representations which have been filed

lla

with the Court and stated in the hearing before the Court

by Plaintiffs’ counsel (including Earl Berger, Esquire,

who is entitled to, and will receive, a heretofore ‘‘agreed-

upon’’ share of the counsel fees awarded herein), the

Court finds that reasonable counsel fees shall be estab-

lished and paid as follows: 2% of the gross total recovery

to which each individual ODS teacher is entitled by virtue

of this Judgment shall be paid by Defendant to Plaintiffs’

counsel.

Notices

6. Notice shall be given of this Judgment, by publishing

the same or a summary agreed upon by counsel, as

promptly as practicable in the National Education Asso-

ciation Reporter and the American Teacher and in all

Overseas Dependents Schools operated by the Depart-

ment of Defense in locations plainly accessible to teach-

ers employed therein.

7. In addition, both parties are authorized and directed

to publicize this Judgment by all practical means avail-

able to them, including but not limited to newsletters,

press releases and other announcements and publications,

and posting of notices and requiring the posting of no-

tices in locations in which former ODS teachers are likely

to see them, such as post exchanges and bulletin boards

in Stateside schools.

VI.

RETENTION OF JURISDICTION

8. The Court recognizes that questions of detail will

arise in the enforcement and administration of this Judg-

ment. Counsel are encouraged and authorized to reach

agreement on the resolution of such questions and to adapt

this Order to the necessities of practical situations as they

arise, consistent with the principles provided herein. This

12a

Court shall retain jurisdiction over this matter for the

resolution of any disputes, and other implementation of

this Judgment and the decision of the Court of Appeals

herein, and to consider such motions or other matters as

either party shall duly put before it.

/s/ June L. Green

June L. Green

United States District Judge

(Nore by E. C. Berger. The Judgment has attached to

it various tables of rates of pay upon which computations

will be based, and other matter deemed unimportant for

this Petition)

13a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA

No. 72-1816

Vircrnia J. Marcu, et au., Appellants

Unrvrep States or AMERICA

No. 72-2062

Vircrnia J. MARCH, ET AL.

Un rep States or America, Appellant

Appeals from the United States District Court

for the District of Clhmbia

(D.C. Civil Action No. 3437-70)

Decision

Decided November 12, 1974

Isaac N. Groner, with whom Alan Y. Cole and Charles

R. Both, were on the brief, for appellants in No. 72-1816

and appellees in No. 72-2062.

Edwin E. Huddleson, Attorney, Department of Justice,

with whom Harold H. Titus, Jr., United States Attorney

l4a

at the time the brief was filed, and Walter H. Fleischer,

Attorney, Department of Justice, were on the brief, for

appellants in No. 72-2062 and appellee in No. 72-1816. Mor-

ton Hollander, Attorney, Department of Justice, and John

A. Terry and James M. Hamny, Assistant United States

Attorneys, also entered appearances for appellant in No.

72-2062 and appellee in No. 72-1816.

Before Fany, Senior Circuit Judge, and Rosinson and

Wuxey, Circuit Judges.

Opinion for the Court filed by Circuit Judge Rosinson.

Rosrnson, Circuit Judge: Virginia March and six other

teachers brought this class action in the District Court to

challenge the methods used by the Department of Defense

in fixing basic salaries and other compensation for teach-

ers employed in its Overseas Dependents Schools (ODS)

system.’ Briefly, the teachers allege that, in violation of the

Overseas Teachers Pay and Personnel Practices Act,’ the

Department (1) computes annual salaries on the basis of

the preceding year’s wages, rather than the current year’s

wages, for similar teaching positions in the United States ;

‘The class comprises approximately 19,500 teachers employed

after April 14, 1966 by the Department in its Overseas Depend-

ents Schools. Jurisdiction in the District Court was invoked under

the Tucker Act, 28 U.S.C. § 1346(a) (2) (1970), as a ‘‘civil action

or claim against the United States, not exceeding $10,000 in amount,

founded . . . upon [an] .. . Act of Congress... .”’ In a class

action such as this, jurisdiction thereunder turns, not upon the

aggregate amount of the claims the members of the class, but

upon the amounts claimed individually by those members. Brown

v. United States, 365 F.Supp. 328, 338 n.5 (E.D.Pa. 1973) ; North-

ern Natural Gas Co. v. Grounds, 292 F.Supp. 619, 644 (D.Kans.

1968), rev’d on other grounds, 441 F.2d 704, cert. denied, 404 US.

951 (1971). Cf. United States v. Louisville & Nashville R.R., 221

F.2d 698, 701 (6th Cir. 1955). No individual claim in this case

exceeds $10,000.

? Act of July 17, 1959, Pub.L.No. 86-91, 73 Stat. 213, 20 U.S.C.

§§ 901 et seg. (1970).

15a

(2) places teachers in lower salary steps than they would

have been placed in comparable school districts in the Unit-

ed States; (3) limits credit for past teaching experience

to two years; (4) makes no allowances for compensatory

time; and (5) calculates the daily rate of compensation,

for teachers paid on a daily basis, on a 210-day school year

rather than the usual 180 or 190 days. The Department con-

cedes that its computations are performed substantially as

alleged by the teachers.

In particular, the teachers claim that these practices are

inconsistent with Sections 4(a)(2) and 5(c) of the Act,

which direct Department authorities to fix the ‘‘basic com-

pensation for teachers and teaching positions at rates equal

to the average of the range of rates of basic compensation

for similar positions of a comparable level of duties and

responsibilities in urban school jurisdictions in the United

States of 100,000 or more population.’ * The teachers asked

* Section 4 of the Act, as amended, provides:

(a) Not later than the ninetieth da owing

y foll July 17,

ao —~ Secretary Defense shall prescribe and issue an.

ations to carry out the p of this ch -

» rem he tr Pa urposes is chapter. Such regula

(1) the establishment of teaching positions;

( 2) the fixing of basic compensation for teachers and

teaching positions at rates equal to the average of the

range of rates of basic compensation for similar posi-

tions of a comparable level of duties and responsibilities

in urban school jurisdictions in the United States of

100,000 or more population;

(3) the entitlement of teachers to compensation ;

(5) the appointment of teachers;

(6) the conditions of employment of teachers;

(7) the length of the school year or school years ap-

plicable to teaching positions;

: the leave system for teachers;

quarters, allowances, and additional i

for teachers; and si ee

(10) such other matters as may be relevant and ap-

l6a

for an injunction restraining the practices complained of,

and for back pay assertedly due in accordance with the Act

since April 14, 1966.‘

There were no disputed issues of material fact, and the

District Court dispoesd of the case on cross-motions for

propriate to the purposes of this chapter.

(b) The regulations prescribed and issued by the Secretary

of Defense under subsection (a) of this section shal] become

effective on such date as the Secretary of Defense shall pre-

scribe but not later than the ninetieth day following the date

of issuance of such regulations.

20 U.S.C. § 902 (1970). Section 5 of the Act, as amended, provides

in pertinent part:

(a) The secretary of each military department in the De-

partment of Defense shall conduct the employment and salary

practices applicable to teachers and teaching positions in his

military department in accordance with this chapter, other

applicable law, and the regulations prescribed and issued by

the Secretary of Defense under section 902 of this title... .

(b) Subject to section 203 of the Classification Act of 1949,

the secretary of each military department—

(1) shall determine the applicability of paragraph (33)

of section 202 of such Act, added by section 3 of this

Act, to positions and individuals in his military depart-

ment and

(2) shall establish the appropriate annual salary rate

in accordance with this chapter for each such position

and individual to which such paragraph (33) is deter-

mined to be applicable. . . .

(ec) The Secretary of each military department shall fix the

basic compensation for teachers and teaching positions in his

military department at rates equal to the average of the range

of rates of basic compensation for similar positions of a com-

parable level of duties and responsibilities in urban school

jurisdictions in the United States of 100,000 or more popula-

tion. ...

20 U.S.C. § 903 (1970).

* This date is the effective date of an amendment to the Act, on

which the teachers’ case is based. See Part I (C), infra.

17a

summary judgment.’ The court granted judgment for the

teachers on only one of their claims, finding that the De-

partment’s policies of limiting credit for prior teaching

experience to two years, and of placing ODS teachers in

lower steps than they would have been placed in domestic

school districts of 100,000 or greater population, violated

the Act. As to the rest of the issues, the court granted

judgment for the Government, holding that computation

of annual salaries on the basis of salaries in the preceding

year was consistent with the Act, and that the remaining

practices challenged were reasonable exercises of discre-

tion. The court permanently enjoined the Government from

refusing to place and compensate ODS teachers in the steps

most closely comparable to those in which they would have

been placed in school districts in the United States;* on

motion by the Government, this injunction was stayed pend-

ing appeal to this court. The court denied the teachers’

prayer for damages representing back pay.

The Government appeals from the judgment in favor of

the teachers; the teachers appeal the District Court’s deter-

minations on the balance of the issues in favor of the Gov-

ernment. From our reading of the Act and related mate-

rials, discussed below, two factors stand clearly at odds with

the District Court’s disposition of certain issues adversely

to the teachers—the unquestionably plain language of the

statutory provisions central to the controversy, and the

* March v. United States, Civ. No. 3437-70 (D.D.C. May 31,

1972).

*The Government argues that the District Court was without

jurisdiction to grant injunctive relief. The court denied the claim

for damages for back pay, and the decided cases, says the Gov-

ernment, suggest that equitable relief can be granted in a Tucker

Act suit only in aid of a money judgment. See, ¢.g., Blanc v.

United States, 244 F.2d 708, 709 (2d Cir.), cert. denied, 355 U.S.

874 (1957). Since we hold that the District Court erred in re-

jeeting the teachers’ prayer for damages, we find it unnecessary

to reach that issue. See Part IV, infra.

18a

express congressional purpose of a 1966 amendment to the

Act. We are thus constrained to reverse the court’s judg-

ment in part, affirm it in part, and remand the case for

further proceedings.

I. Historica, BackGRounD

A. The Period Prior to 1959

Shortly after World War II, the United States estab-

lished the Overseas Dependents Schools to provide educa-

tional facilities abroad for dependents of military and civil-

ian personnel. The ODS system, we are told, is the ninth

largest American school system, with over 180,000 students

and approximately 7,000 teachers.’

Until 1959, ODS teachers were subject to the civil serv-

ice laws and regulations. The application to ODS teachers

of those general provisions, designed for federal civil ser-

vants who worked a regular twelve-month year,® created

a number of economic inequities. Like stateside teachers,

they worked the traditional nine- to ten-month school year.

Unlike stateside teachers, however, they could not be paid

during the summer months, or the Thanksgiving, Christmas

or Easter recess periods,® nor could their salaries reflect

‘*their academic background and qualifications, in accord-

ance with the general practice in the United States.’’*® As

a result, the annual compensation of ODS teachers was

substantially below that of their stateside counterparts.

Congress sought to correct this situation by enactment in

1959 of legislation specifically addressing the Department’s

practices respecting overseas teachers.

’ Brief for United States at 4; Brief for Teachers at 4.

® See S.Rep. No. 141, 86th Cong., 1st Sess. 2 (1959).

* Id. See also H.R. Rep. No. 357, 86th Cong., Ist Sess. 2-3 (1959).

19a

B. The 1959 Overseas Teachers Pay and Personnel Prac-

tices Act

The Senate report accompanying the bill that became the

Act stated that the purpose of the bill was

to provide a system of personnel administration for

schoolteachers ard certain school officers and other

employees of the dependents schools operated by the

Department of Defense in oversea areas comparable

to the systems found in the majority of the public pri-

mary and secondary school jurisdictions in the United

States.

The proposed system recognizes and corrects defi-

ciencies in the present system which the Department

of Defense has identified and which long have been

apparent.”

To remedy the deficiencies in compensation re have noted,

the Act originally provided that ODS teachers were to be

paid ‘‘in relation to the rates of basic compensation for

similar positions in the United States.’’’* The Department,

pursuant to the Act, promulgated regulations to ‘‘conduct

the employment and salary practices applicable to teachers

and teaching positions . . . in accordance with [the] Act.

...’’* The only specific standard in the Act to guide the

Department was a provision that the basic compensation

for ODS teachers could not exceed the highest rate of basic

compensation for public school teachers in the District of

Columbia."*

™ Id. at 1.

' me of July 17, 1959, Pub.L. No. 86-91, §5(c), 73 Stat. 214

1959).

conmen of July 17, 1959, Pub.L. No. 86-91, § 4(a), 73 Stat. 214

usn of July 17, 1959, Pub.L. No. 86-91, §5(c), 73 Stat. 214

20a

In addition to the published regulations, the Department

established two procedures that cemented the ODS teach-

ers’ annual wage rate considerably below that paid to state-

side teachers. First, since Congress had limited appropria-

tions for ODS to a specific amount per student, the Depart-

ment interpreted the ‘‘in relation to’’ language of the Act

as limiting the teachers’ salaries by this ‘‘per pupil limi-

tation.’’** Second, because Bureau of the Budget regula-

tions prohibited federal agencies from budgeting for an-

ticipated increases in wages or salaries based on prevail-

ing rates outside the Federal Government,”* the Depart-

ment calculated the teachers’ annual salaries by the pre-

ceding year’s rate. The former policy has been discontinued,

but the latter is still a key element of the Department’s

computation scheme.”

The teachers challenged the Department’s interpretation,

arguing that the Act required it ‘‘te take periodic action

to raise [the teachers’) salaries to levels equal to those

prevailing in the United States... .’’** The Department

answered that it was restricted by the per pupil limitation.

This dispute resulted in a series of legal battles in which

the courts uniformly upheld the Department’s construction

and its related practices.** The historical posture of the

*® See H.R. Rep. No. 519, 89th Cong., Ist Sess. 3 (1965).

*® See Instructions for the Preparation and Submission of An-

nual Budget Estimates, Bureau of the Budget Circular A-11, § 13.4

(July, 1963).

7 The legality of this practice is considered in Part III(A),

infra.

*® See Mitchell v. McNamara, 122 U.S.App.D.C, 224, 225, 352

F.2d 700, 701 (1965).

** Mitchell v. McNamara, supra note 18; Crawford v. United

States, 376 F.2d 266 (Ct.Cl. 1967), cert. denied, 389 U.S. 1041

(1968) ; Chambers v. United States, 306 F.Supp. 317 (E.D.Va.

1969), aff'd, 434 F.2d 1312 (4th Cir. 1970), cert. denied, 402 U.S.

944 (1971). These cases construed the text of the original Act,

rather than the 1966 amendment. See note 37, infra,

2la

case at bar was significantly altered, however, in 1966 when

Congress again tried to bring ODS teachers’ pay in line

with salaries for teaching in comparable school districts

in the United States.

C. The 1966 Amendment

In 1965, two congressional subcommittees held hearings,

on a proposed amendment to the Act, that clearly and in-

disputably showed that ODS teachers were not receiving

the compensation Congress had intended to provide.” In

fact, in some respects the teachers had fared worse under

the Act than they would have under the civil service laws

and regulations.” The House Committee on Post Office and

Civil Service reported that

The Post Office and Civil Service Committee and the

Congress understood tha‘ in enacting [the Act] they

were providing a firm and reasonable formula for the

payment of appropriate salaries to overseas teachers.

That understanding has not proved out. [The proposed

amendment] provides a standard which, although var-

iable in amount, is positive because the precise dollar

amounts in question are readily ascertainable. . .. The

bill then goes on to direct and require that the overseas

20 See Hearings on H.R. 6845 Before the Subcomm. on Compen-

sation of the House Comm. on Post Office and Civil Service, 89th

Cong., Ist Sess. (1965) ; Hearings on S. 2228 Before the Subcomm.

on Civil Service of the Senate Comm. on Post Office and Civil

Service, 89th Cong., Ist Sess. (1965). Both bills were firm in their

intent to remedy the inequities noted in the text.

“<The salaries of [ODS] teachers have suffered. Since 1959

their salaries have been increased twice, by a total percentage of

4.3. During the same perod, salaries for employees classified as

GS-7 (the classification which these teachers had prior to 1959),

have increased 21.5 percent, and teachers [sic] salaries in school

jurisdictions of 100,000 or more have increased by 18.5 percent.’’

S.Rep. No. 951, 89th Cong., 2nd Sess. 3 (1966).

22a

teachers shall be paid salaries determu..»ed by the stand-

ard.”

The Committee further enunciated the purpose of the pro-

posed amendment:

[T]o establish a positive, reasonable, and fully effec-

tive legislative policy with respect to rates of com-

pensation which shall be paid to teachers in the over-

seas dependents school system of the Department of

Defense, under which policy the Department of De-

fense and the three military departments shall and

must pay such teachers salary rates equal to the aver-

age range of salaries paid teachers having comparable

levels of duties and responsibilities in urban school

jurisdictions in the United States of 100,000 or more

population. This policy, and the mandatory payment

of such equal salary rates, is consistent with, and will

strengthen, the policy laid down by the Congress in

the enactment of the Defense Department’s Overseas

Teachers Pay and Personnel Practices Act (Public

Law 86-91), which thus far has not been effectuated in

accordance with congressional intent.”

The amendment, enacted in 1966, provided that ODS

teachers were no longer to be paid ‘‘in relation to the rates

of basic compensation for similar positions in the United

States’’;** rather, they were to receive salaries ‘‘equal to’’

those of a defined class of teachers.” Congress thus delin-

eated a compensatory scheme for ODS teachers that would

put them on a par with stateside teachers. Perhaps Con-

22 H.R. Rep. No. 519, 89th Cong., Ist Sess. 4 (1965) (emphasis

in original).

23 Jd. at 2 (emphasis added).

*¢ See text supra at note 12.

25 See note 3, supra.

23a

gress also hoped to end the perennial feud between the

Defense Department and its corps of educators but, as this

case illustrates, the dispute is still very much alive.

In our view, as discussed below, the clear purpose of the

1966 amendment was to guarantee ODS teachers the same

salaries they would receive for performing the same duties

in stateside schools. Indeed, it is difficult to read the Act

any other way.

II. Ex_vcrmatine tae Act

When a court construes a statute, the starting point must

be the language of the statute.** We have carefully exam-

ined the Overseas Teachers Pay and Personnel Practices

Act and conclude that basic compensation for ODS teach-

ers is to be calculated on a parity with basic compensation

for teachers in the United States. It is well settled that

‘*[w]here the language is plain and admits of no more than

one meaning the duty of interpretation does not arise and

the rules which are to aid doubtful meanings need no dis-

cussion.’’ *

To be sure, as the Government argues, this ‘‘ plain mean-

ing rule’’ does not ‘‘preclude consideration of persuasive

evidence if it exists.’’** The Supreme Court has warned

that

** United States v. Bass, 404 U.S. 336, 339 (1971); Caminetti

v. United States, 242 U.S. 470, 485 (1917) ; Zaimi v. United States,

155 U.S.App.D.C. 66, 71, 476 F.2d 511, 516 (1973).

** Caminetti v. United States, supra note 26, 242 U.S. at 485. See

also Callanan v. United States, 364 U.S. 587, 594-95 (1961) ; United

States v. Public Utils. Comm’n, 345 U.S. 295, 312-13 (1953) ; Sea-

Land Serv., Inc. v. FMC, 131 U.S. App.D.C. 246, 248-49, 404 F.2d

824, 826-27 (1968); District of Columbia Nat’l Bank v. District

. = 121 U.S. App. D.C. 196, 198, 348 F.2d 808, 810

%65).

** Boston Sand & Gravel Co. v. United States, 278 U.S. 41, 48

(1928).

24a

words are inexact tools at best, and for that reason

there is wisely no rule of law forbidding resort to ex-

planatory legislative history no matter how ‘‘clear the

words may appear on ‘superficial examination.’ ’’ *

In our opinion, this admonition merely underscores the

importance of construing this statute, if possible, to give

effect to the congressional purpose. The Government has

briefed in great detail the legislative history of the 1966

amendment and argues that it establishes that the Defense

Department’s interpretation is consistent with the ‘‘con-

gressional understanding.’’ The teachers, although they

rely primarily on the plain meaning of the Act, have also

briefed the legislative history in no less exhausting detail

and argue that it fully supports their construction.

The strong support that the Government and the teach-

ers respectively find in the hearings * and congressional de-

bates * reinforces our conviction that this aspect of the

legislative history is at most ambiguous and contradic-

2° Harrison v. Northern Trust Co., 317 U.S. 476, 479 (1943),

quoting United States v. American Trucking Ass’n, 310 U.S. 534,

544 (1940).

%°‘«The individual opinions of witnesses at hearings are of

dubious value in interpretation of legislation.’’ Potomac Passen-

gers Ass’n v. Chesapeake & Ohio Ry. Co., 154 U.S.App. D.C. 214,

925, 475 F.2d 325, 336 (1973), citing McCaughn v. Hershey Choco-

late Co., 283 U.S. 488, 493 (1931); Pacific Ins. Co. v. United

States, 188 F.2d 571, 572 (9th Cir.), cert. dismissed, 342 U.S. 857

(1951); United States v. Kuang Chen Fur Corp., 188 F.2d 577,

584, 38 CCPA 107 (1951) ; Railroad Retirement Board v. Duquesne

Warehouse Co., 80 U.S. App. D.C. 119, 122, 149 F.2d 507, 510

(1945), aff’d, 326 U.S. 446 (1946).

*1 It is of course undisputed that courts can consider congres-

sional debates in construing legislation. See United States v.

O’Brian, 391 U.S. 367, 383-84 (1968). But where, as here, they

reflect individual interpretations that are contradictory and am-

biguous, they carry no probative weight. See, e.g., NLRB v. Plas-

terers’ Local Union, 404 U.S. 116, 129-30 n.24 (1971).

25a

tory,” and therefore should be ignored in favor of an appli-

cation of the clear and precise statutory language and pur-

pose here involved. Indeed, ‘‘this is a case for applying the

canon of construction of the wag who said, when the legis-

lative history is doubtful, go to the statute.’’ *

** See generally hearings cited supra note 25; 111 Cong Rec.

19223-42 (1965). As one example, the Government lie as a

statement by Representative Udall, a sponsor of the 1966 amend-

ment, that claimed the practice of calculating ODS teachers’ sal-

aries on the basis of the preceding year’s salaries for stateside

teachers was consistent with Bureau of the Budget regulations.

The salary-determination procedures of [the proposed

amendment] are intended to require that the salary sched-

uled for a particular school year will be set in consideration

of rates paid in school jurisdictions in the United States for

the preceding school year. This is necessary because the De-

partment of Defense budget must be prepared during the

preceding year when salary schedules in the United States

for the coming year cannot be determined. Under Bureau of

the Budget regulations, departments may not budget for an-

ticipated increases in wages or salaries based on prevailing

rates outside of the Federal Government. Only wage or salary

schedules based on wages or salaries actually being paid can

be considered.

111 Cong.Ree. 19234 (1965). The teachers counter with statements

by Representative Udall, 111 Cong.Ree. 19234, 19237, 19239

(1965), and other congressmen. Jd. at 19235 (remarks of Repre-

sentative Stratton) ; id. at 19239 (remarks of Representative Broy-

hill). The teachers also point out that Rephesentative Udall joined

in a 1969 committee report that criticized Department practices.

H.R. Rep. No. 91-480, 91st Cong., Ist Sess. 7 (1969). See Bobsee

Corp. v. United States, 411 F.2d 231, 237 n.18 (5th Cir, 1969).

We note that this report, although written after passage of the

1966 amendment, was prepared by the same committee that

ane . A continuing oe lh be certain that ODS teachers

were eir proper salaries. H.R. Rep. No. 519, 89th "

Sess. 4 (1965). ‘ ——

** Greenwood v. United States, 350 U.S. 366, 374 (1956). Cf.

F. Frankfurter, Some Reflections on the Reading of Statutes, 47

Colum. L. Rev. 527, 543 (1947).

26a

The Government also argues that the congressional re-

ports establish the validity of the Department’s applica-

tion of the Act. We disagree. The reports demonstrate a

congressional intent consistent with the unequivocal stat-

utory language,“ which we find in some respects inconsist-

ent with the current application of the Act.*

Recognizing the clarity with which Congress has ex-

pressed itself, we must determine whether present com-

pensatory practices are consistent with the statute and the

purpose it was enacted to carry out. Our duty in this re-

gard, to paraphrase the Supreme Court,” is to place the

statute and current practice side by side and see if the lat-

ter squares with the former.

Ul. Testinc tHe DePARTMENT’S COMPENSATORY

Practices AGAINST THE STaTUTORY LANGUAGE

A. Computation of Salaries Based on the Preceding Year’s

Rate

The Defense Department calculates the teachers’ cur-

rent annual salaries by using the preceding year’s salaries

for stateside teachers of the class defined by the Act. We

hold that this practice violates the statutory mandate that

** See Part I(C), supra. Citations of the reports herein are not

meant to supplant the court in its interpretative function. See

United States v. American Trucking Ass’n, supra note 29, 310 U.S.

at 544. Our references to the reports are simply ‘‘for the purpose

of ascertaining the general object of the legislation proposed, and

the mischiefs sought to be remedied.’’ FTC v. Raladam Co., 283

U.S. 643, 651 (1931). ‘‘A committee report represents the con-

sidered and collective understanding of those congressmen involved

in drafting and studying proposed legislation.’’ Zuber v. Allen,

396 U.S. 168, 186 (1969); United States v. O’Brian, supra note

31, 391 U.S. at 385; United States v. UAW Int’l, 352 U.S. 567,

585 (1957).

** See Part III, infra.

** United States v. Butler, 297 U.S. 1 (1936).

27a

ODS teachers are to be compensated ‘‘at rates equal to the

average of the range of rates of basic compensation for

similar positions of a comparable level of duties and re-

sponsibilities in urban school jurisdictions in the United

States of 100,000 or more population.’’ ”

As the Government points out, the statutory language

does not expressly designate the stateside salary year to

be utilized in applications of the statutory formula. It is

well settled, however, that words in a statute will be read

according to their common usage, absent a contrary indi-

cation.” Surely the term ‘‘equal to,’’ as it is commonly

used and understood, means equivalent to a present com-

720 U.S.C. §§ 902(a)(2), 903(c) (1970) (emphasis added),

quoted in full supra note 3.

The Court of Claims reached the opposite conclusion in an-

other case challenging this practice and seeking back pay. Trecosta

v. United States, 194 Ct.Cl. 1025 (1971). The Court reasoned that

‘*fa]lthough Congress was fully cognizant of past Department pro-

cedure ..., no action was taken and no change contemplated.’’

Id. at 1026. We are compelled to reach a different result. We

agree that where an administrative agency has consistently given

a statute an interpretation over a long time and Congress re-

enacts the statute without change, Congress might be presumed

to have adopted the agency’s construction of the statute. Commis-

sioner v. Flowers, 326 U.S. 465, 469 (1946); United States v.

Cerecedo Hermanos y. Compania, 209 U.S. 337, 339 (1908). This

maxim, however, is not the last word; the Supreme Court has

admonished that reenactment ‘‘is an unreliable indicium at best’’

to indicate ‘‘congressional satisfaction’’ with a statutory inter-

pretation. Commissioner v. Crenshaw Glass Co., 348 U.S. 426, 431

(1955). We believe that where, as here, ‘‘the law is plain, the

subsequent reenactment of a statute does not constitute adoption

of its administrative construction.’’ Biddle v. Commissioner, 302

U.S. 573, 582 (1938), citing Iselin v. United States, 270 U.S. 245

(1926); Louisville & N. R. Co. v. United States, 282 U.S. 740

von he Helvering v. New York Trust Co., 292 U.S. 455, 467-68

1934).

** Malat v. Riddell, 383 U.S. 569 (1966) ; Commissioner v. Brown,

380 U.S. 563 (1965); Williams v. W.M.A. Trensit Co., 153 US.

App.D.C. 183, 190, 472 F.2d 1258, 1265 (1972).

28a

ponent, rather than past or future. If Congress had intend-

ed to key ODS teachers’ salaries to the preceding year’s

salaries for stateside teachers, it could easily have specified

such a standard.” Here Congress used the phrase ‘‘equal

to’’ without qualification and, lacking manifestation of a

different intent, we think temporal as well as monetary

equality was contemplated.

We are no more impressed by the Government’s asser-

tion that the Department’s interpretati » of the Act should

be accepted because it was adopted by the agency charged

with principal responsibility for administering the Act.“

We note initially that administrative construction of the

statutory language under scrutiny in no way drew upon the

experience or expertise of the Defense Department. The

interpretative problem before the Department was the

meaning of statutory language pertinent to a matter com-

pletely outside its field of specialty, but well within the

area entrusted to the courts.** ‘‘ Administrative construc-

tion is less potent than it otherwise would be where it does

not rest upon matters peculiarly within the administrator’s

field of expertise.’’ *

Moreover, the Department’s interpretation could hardly

lay claim to the presumption of accuracy that courts fre-

quently accord to an agency’s construction of a law it is

legislatively empowered to oversee.** When it enacted the

** See, e.g., Davies Warehouse Co. v. Bowles, 321 U.S. 144, 156

(1944).

*° See, e.g., Red Lion Broadcasting Co. v. FCC, 395 U.S. 367,

381 (1969); Udall v. Tallman, 380 U.S. 1, 16 (1965); Lenkin v.

District of Columbia, 149 U.S.App.D.C. 129, 141, 461 F.2d 7215,

1227 (1972).

* See Barlow v. Collins, 397 U.S. 159, 166 (1970).

*? Thompson v. Clifford, 132 U.S.App.D.C. 351, 364, 408 F.2d

154, 167 (1968).

** See note 40, supra, and accompanying text.

29a

1966 amendment, Congress made known its displeasure with

the Department’s failure to carry out the purpose under-

lying the Act in original form; indeed, the amendment was

a direct response to that failure. The House Report ac-

companying the bill that eventuated as the 1966 amendment

stated:

The Committee on Post Office and Civil Service is

deeply concerned at the treatment that has been ac-

corded the overseas school teachers—a concern shared,

it is believed, by many other Members of Congress—

particularly in view of the obvious failure to adminis-

ter the salary provisions of [the original Act] as they

were intended and expected by the committee and the

Congress to be administered. Without attempting to

place the blame, and whether it be due to administra-

tive unwillingness to shoulder the burden of obtaining

necessary funds or disagreement with the policies of

{the original Act], it certainly is essential that the

problem be resoived without further delay.“

It is clear enough to us that here ‘‘the legislature itself has

responded to [the Department’s] past interpretation and

administration of the legislation with severe censure,’’ “

and that ‘‘[t]he general presumption that the agency has

correctly discerned and implemented the intent of the legis-

lature[] would seem singularly inappropriate.’’ “

Perhaps even more importantly, ‘‘[j]udicial obeisance

to administrative action cannot be pressed so far’’ as to

justify adoption of an administrative construction that

‘*flies in the face of the purposes of the statute and the

“H.R. Rep. No. 519, 89th Cong., Ist Sess, 3-4 (1965) (emphasis

added ). See text supra at note 23.

** Cy Ellis Raw Bar v. District of Columbia Redevelopment Land

Agency, 139 U.S.App.D.C. 385, 390, 433 F.2d 543, 548 (1970).

Td.

30a

plain meaning of its words.’’ *’ To accept the Department’s

interpretation respecting the stateside salary year on which

ODS teachers’ salaries are to be computed would be to

forsake the unmistakable mission of the Act. We recognize

that there is some authority for the Government’s position

in the congressional debates and hearings but, on the whole,

this aspect of the legislative history is far from conclusive.“

We find the Act and the committee reports clear and une-

quivocal as to the intent of Congress, and our duty is to

give that intent full effect.

B. Salary Grades, Steps, and Prior Teaching Experience

Salaries in both the ODS and stateside systems are clas-

sified by grades and, within each grade, are graduated by

steps corresponding to prescribed qualifications and expe-

rience. In placing teachers at particular levels the Defense

Department limits credit for prior teaching experience to

two years, regardless of the quantum of actual prior expe-

rience. The teachers also allege that the Department limited

the number of steps and assigned lower values to each step

in violation of the Act.

The teachers claim that the ‘‘equal to’’ language of the

statute * applies to all elements of: the teachers’ compen-

sation and prohibits current Department procedures. The

Government responds that many of these practices are not

subject to the ‘‘equal to’’ standard, but rather are commit-

ted to the Department’s discretion by other provisions.”

** Haggar Co. v. Helvering, 308 U.S. 389, 398 (1940). See also

Thompson v. Clifford, supra note 42, 132 U.S.App.D.C. at 363,

408 F.2d at 166; District of Columbia v. Grimes, 131 U.S.App.D.C.

360, 362, 404 F.2d 1337, 1339 (1968).

*® See note 32, supra.

** See Part I1(C), supra.

*° 20 U.S.C. §§ 902(a) (3), 903(c) (1970), quoted supra note 3.

* See 20 U.S.C. §§ 902(a)(1), (3)-(10) (1970), quoted supra

note 3.

3la

Although we do not agree with the teachers’ position that

all facets of their compensation are subject to the require-

ment of equality with stateside teachers,** we do think sal-

ary grade, steps and credit for past teaching experience are

essential ingredients of ‘‘basic compensation,’’and there-

fore are covered by the ‘‘equal to’’ mandate of the Act.

Again, the focal point of the controversy is the meaning

of the statutory language—‘‘at rates equal to the average

of the range of rates of basic compensation for similar

positions of a comparable level of duties and responsibili-

ties in urban school jurisdictions in the United States of

100,000 or more population.’’** The Act undisputably ob-

ligates the Department to determine the ‘‘average of the

range of rates’’ in the school districts specified. Once the

average in those districts is determined, we think salary

grades and steps for ODS teachers—which in the final

analysis determine their basic annual wage—must match

this average grade by grade and step by step. The House

report makes this meaning clear:

The effect of the reported bill . . . is to require that

salaries paid teachers in the Department of Vefense

Overseas Dependents School System be equal to the

average of the minimum, intermediate and maximum

rates paid teachers holding positions of comparable

levels of responsibility in urban school jurisdictions of

100,000 or more population in the United States, in-

cluding the same average number of salary steps.”

This language echoes the plain import of the statutory lan-

guage, which, as Congress intended, leaves ‘‘no room for

the substitution of independent views or judgments by any

5? See Part ITI(D), infra.

58 See note 3, supra.

** H.R. Rep. No. 519, 89th Cong., Ist Sess. 3 (1965) (emphasis

in original).

32a

Federal civilian or military official.’’** The Act thus re-

quires the Department to give ODS teachers credit for

prior experience on the same basis that such credit is ac-

corded teachers in the specified stateside districts. Beyond

that, the number of steps, the value of each step and the

qualifications therefor must, as closely as practicable, equal

the average for the specified districts.

The Government argues that the Department’s practices

with respect to these matters are incidental, and therefore

within its discretion. It also states that its ‘‘practice for

crediting past teaching experience is part of a system ‘de-

signed to produce a reasonable, simple, and understandable

compensation program.’ ’’ * Unless ‘‘basic compensation”’

is a term of art in the education field, for which no evidence

is presented to us, this argument is unpersuasive. The Gov-

ernment would apparently have us believe that ODS teach-

ers have only passing interest in their initial salary grades

and steps, but we cannot accept this proposition. No more

55 Jd. at 4.

5° We are mindful of the Government’s position that the prac-

tices in question are covered by the provisions of 20 U.S.C. §§ 902

(a) (1), (3)-(10). See note 3, supra. Undoubtedly, those provisions

give the Department some discretion in determining certain con-

ditions of ODS teachers’ employment, but its discretion, as it

pertains to fixing basic compensation, is plainly limited by the

mandate of equality in 20 U.S.C. §§ 902(a) (2), 903(¢). See note

3, supra. We must read the Act as a whole, and give effect to each

of its provisions if possible, ‘‘in light of the legislative policy and

purpose.’’ Weinberger v. Hynson, Westcott & Dunning, Inc., 412

U.S. 609, 631-32 (1973). Our interpretation we think, firmly em-

braces both of these principles. To accept the Department’s inter-

pretation, however, would be to strike a crippling blow to the statu-

tory scheme of equality, and to neutralize the obvious objective of

the 1966 amendment. An administrative agency, like a court, lacks

freedom to tailor its interpretation of a statute to its own notions

of what is best, and thereby to negate its stated purpose. State

Dep’t of Social Serv. v. Dublino, 413 U.S. 405, 419-20 (1973).

°? Brief for Government at 20-21.

33a

for overseas teachers than for administrative bureaucrats

can we imagine a view that qualifications for federal grade

levels and steps are just ‘‘incidental’’ to basic salaries.”

Perhaps the Defense Department has constructed a sim-

ple and easily administered compensation program for ODS

teachers, but neither fondness for simplicity nor an unwar-

ranted interpretation of ‘‘basic compensation’’ can be per-

mitted to frustrate the ordinary and natural meaning of

the statutory language ® and the manifest purpose of Con-

gress to place ODS teachers on a par with their stateside

counterparts. We hold that the Department’s construction

of the Act in the respects discussed is clearly at odds with

the intent behind the 1966 amendment.

C. Daiiy Rates of Compensation

The teachers also challenge the Department’s practice of

computiug daily rates of compensation on the basis of a

school year of 210 days rather than the normal school year

of 180 to 190 days." The Government argues that this pro-

cedure falls within the discretion of the Defense Depart-

** The importance of the limit on credit for prior experience, for

example, can be clearly shown. A teacher with a Bachelor of Arts

degree and six years of prior teaching experience would have been

placed at step 7 in a stateside school system during the 1969-70

school year; but the Department would have placed the same

teacher at step 3 in an overseas position. Joint App. at 27 (affidavit

of Earl C. Berger, Counsel for the Overseas Education Association).

At that time, each step was worth $270, resulting in a loss of $1,080,

which was exacerbated by use of the salary scale from the preceding

year. See Part III(A), supra.

*° See note 38, supra, and accompanying text.

* See Part I(C), supra.

"The discrepancy results because the Department includes the

Christmas and Easter vacations as part of the school year for this

purpose, while stateside schools exclude these days. In each case,

the school year comprises between 180 and 190 working days. See

5 C.F.R. § 1601.7 (1974).

34a

ment under Section 4(a)(7)® to prescribe regulations gov-

erning ‘‘the Jength of the school year or school years ap-

plicable to teaching positions.’’ ®

This provision certainly confers discretion in determin-

ing the length of the school year “ but, with equal certainty,

that discretion must be exercised in a reasonable manner “

and consistently with congressional expressions in the stat-

ute. The Department’s present method of computing the

daily rate does not comport with these criteria.

Current departmental regulations provide that the school

year for ODS teachers ‘‘will consist of not more than 190

6? The Government also argues that the discretion given by Sec-

tion 4(a)(9), 20 U.S.C. § 902(a)(9) (1970), to promulgate regula-

tions governing ‘‘quarters, allowances, and additional compensatio"

for teachers,’’ allows the Department to fix the year at 210 days

for caleulation of the daily wage rate. We cannot agree that this

provision is relevant to this case. The first two categories in tnis

section certainly do not apply. See 20 U.S.C. §§ 905, 906 (1970).

Moreover, ‘‘additional compensation,’’ as it is commonly under-

stood, does not include computation of the daily wage rate, because

that rate is merely a breakdown of the basic annual wage. Compare

Part II1(D), infra.

%° 20 U.S.C. § 902(a) (7) (1970).

** Indeed, the Department might reasonably provide that the

school year for ODS teachers consists of more than 190 working

days. Once the number of working days is fixed, however, we think

the statute requires the Department to fix the daily rate in the

same manner as stateside schools. A major purpose both of the

original Act and the 1966 amendment was to equalize ODS teachers’

compensation and stateside teachers’ salaries. See Part I, supra.

The Government has not pointed to a single stateside jurisdiction

that computes its daily pay rate in the fashion we are asked to

approve. Thus we cannot infer that there is a basis for claiming

that the current practice represents that in the average stateside

school district.

* E.g., Citizens to Preserve Overton Park, Inc. v. Volpe, 401

U.S. 402, 413-14 (1971).

* E.g., Hardin v. Kentucky Util. Co., 390 U.S. 1, 8 (1968).

35a

working days.’’ In computing ODS teachers’ daily rate

of compensation, however, the Department uses a 210-day

school year, derived from the number of calendar days in

the school year, excluding Saturdays and Sundays but in-

cluding Christmas and Easter recesses. There is no evi-

dence in the record to indicate that this method of caleu-

lation has ever been used in any of the school districts re-

ferred to in the Act.

We think this practice is condemned by the requirement

of equality defined in the Act, because the daily wage rate

is an integral part of ‘‘basic compensation.’’™ All ele-

ments of basic compensation governed by the statutory

equality mandate, and the manifest purpose of the Act is

to put ODS teachers and teachers in the United States on

the same plane.” It is our understanding that stateside

districts predicate all computations on actual working days

—between 180 and 190 per year—and the Act requires the

same of the Department.

D. Compensatory Time

The teachers also complain that the Department’s regu-

lations do not provide for allowances of compensatory time

in the ODS system, while such allowances exist in similar

poitions in stateside schools. It may be that stateside

teachers accumulate compensatory time for such activities

as attending PTA meetings, lesson preparation and grad-

ing papers. We hold, however, that these aspects of com-

pensation are not part of ‘‘basic compensation’’ under

Sections 4(a)(2) and 5(c),” but rather are committed to

the Department’s discretion under Sections 4(a)(8) and

**5 C.F.R. § 1601.7 (1974).

** See note 62, supra. ~

* See Part I(C), supra.

20 U.S.C. §§ 902(a) (2), 903(¢) (1970), quoted supra note 3.

36a

4(a)(9) dealing with ‘‘the leave system’’ and ‘‘additional

compensation.’’™ Accordingly, this aspect of the District

Court’s judgment will not be disturbed.

IV. Tur Teacuers’ Ricuts to DamMaGeEs

As we noted above,” the District Court found the De-

partment’s practices inconsistent with the statutory scheme

in one respect. The court granted the teachers injunctive

relief on that count,”* but denied their claim for back pay

damages.

The trial court gave no reason for denying the teachers’

prayer for damages, and we are unable to discern any

sound reason to support the denial. The teachers had a

statutory right to receive the pay they now demand as dam-

ages.* As a direct result of the Department’s erroneous

interpretation and application of the Act, they have suf-

fered a recognizable legal injury. In addition to an injunc-

tion against the condemned practices, they should receive

what has been rightfully and legally theirs since April 14,

1966."* As the Supreme Court has declared, ‘‘[a] disregard

7220 U.S.C. §§ 902(a) (8), (9) (1970), quoted supra note 3. The

teachers have not presented any evidence to contradict the District

Court’s finding that the Department’s discretion has been ‘‘reason-

ably exercised.’’ Instead, they argue that this part of the case is

also subject to the strict equality standard discussed above. See

Parts II(A), (B) & (C), supra. We think this argument ignores

the ordinary meaning of the statutory language.

72 See text supra at note 5.

78 See text supra at note 6.

™ See Part III, supra. Moreover, none of the usual justifications

for barring retroactive application of a judicial decision apply to

this case. See Linkletter v. Walker, 381 U.S. 618 (1965); James

v. United States, 366 U.S. 213 (1961) ; Comment, Legal Aspects of

the Use of ‘‘Ordinary Simple Interest,’’ 41 U. Chi. L. Rev. 141,

150-51 (1972).

> See notes 1 & 4, supra.

37a

of the command of the statute is a wrongful act, and where

it results in damage to one of the class for whose especial

benefit the statute was enacted, the right to recover the

damages from the party in default is implied.’’ “

V. ConcLusion

The results we reach today are required by the language

and purpose of the Act. Congress has twice tried to equal-

ize the salaries of ODS and stateside teachers; the dispari-

ty in salaries has also been expressly condemned in com-

mittee reports. The basic compensation of ODS teachers,

however, is still significantly below that of stateside teach-

ers. We hope this decision will finally resolve a dispute that

has already lasted far too long.

For the reasons stated in this opinion, we affirm the judg-

ment granted in favor of the teachers. The judgment for the

Government is reversed as to the calculation of salaries

based on the preceding year, the computation of daily rates

based on a 210-day year and the denial of damages. The

balance of the judgment of the District Court is affirmed.

The case is remanded to the District Court for further pro-

ceedings consistent with this opinion.

So ordered.

Texas & Pac. Ry. Co. v. Rigsby, 241 U.S. 33, 39 (1916). See

also Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 239 (1969) ;

Kentucky Util. Co. v. TVA, 375 F.2d 403, 416-17 (6th Cir. 1966) ;

Dann v. Studebaker-Packard Corp., 288 F.2d 201, 208-09 (6th Cir.

1961). There has been no suggestion that the named teachers, and

those whom they represent, are not members of the class for whose

benefit the statute was enacted.

38a

APPENDIX C

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 3437-70

Vircrnus J. Marca, et al., Plaintiffs,

Vv.

Unrrep States or America, Defendant.

Order

(filed: Nov. 7, 1975)

A Petition to Amend Judgment entered herein on June

30, 1975 having been served on September 5, 1975, with

supporting papers; Plaintiffs and Defendant having filed

an Opposition thereto, Plaintiffs with supporting papers;

Plaintiffs having filed a Motion to Strike Petition to

Amend Judgment, with supporting papers; an Opposition

having been filed thereto; and the Court being fully ad-

vised in the premises and having concluded that the Peti-

tion to Amend Judgment falls under Rule 59(e) of the

Federal Rules of Civil Procedure and is untimely and

may not be entertained by this Court pursuant to that

Rule; that the Petition makes no showing of any ground

that would warrant the invocation of Rule 60(b) and there

is in fact no such ground; that the relief requested in the

Petition has already been afforded by the Judgment or is

precluded by law;

Ir Is, THererore, Tuts 6TH Day or Novemser, 1975,

Orverep that Plaintiff’s Motion to Strike Petition to Amend

Judgment shall be, and it is hereby, granted; and the

Petition to Amend Judgment shall be, and it is hereby,

stricken.

/s/ June L. Green

United States District Judge

39a

APPENDIX D

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

(Caption Omitted in Printing)

Order

(filed March 24, 1976)

A Motion to Stay Proceedings in the District Court

Pending Appeal having been filed with supporting papers;

Plaintiffs and Defendant having each filed an Opposition

thereto; and the Court being fully advised in the premises

and concluding that there is no likelihood of success on

appeal, that there is no sufficient showing of irreparable

damage, that both parties, Plaintiffs and Defendant, would

be substantially harmed by a stay, and that the public

interest requires denial,

Ir Is, THererore, Tars 24TH Day or Marcu, 1976, Or-

DERED that the Motion to Stay Proceedings in the District

Court Pending Appeal shall be, and it is hereby, denied.

/s/ June L. Green

June L. Green

United States District Judge

40a

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 75-2262

Virersta J. Marcu, Jonn H. Lenn, Artuvur M. Trnc ey,

Lucy I. E. Jonnson, EvizapetH A. Messmer, Mary

Auice Rexvck1, and Jonn Morrison, on behalf of them-

selves and all others similarly situated, Appellees,

Tue Unrrep States, Appellee.

Earw C. Bercer, Appellant.

Motion for Affirmance Without Further Proceedings

(filed April 16, 1976)

Appellees Virginia J. March, et al., respectfully request

the Court to affirm the Order of the District Court involved

in this Appeal, without further proceedings, for the reasons

stated in their Brief, filed herein on April 9, 1976, and in

the Response of Appellees Virginia J. March, et al. in

Opposition to Motion for a Stay of Distribution of Funds

in the Hands of Defendant Pending Appeal and for Col-

lateral Relief, filed herewith, incorporated herein, to which

the Court is respectfully referred, in lieu of reiteration.

/s/ Isaac N. Groner

Isaac N. GRoNER

Freperick A. Provorny

Neat M. SHen

Coie anp Groner, P.C.

1730 K Street, N.W.

Washington, D.C. 20006

Attorneys for Appellees

Virginia J. March, et al.

4la

Comment sy Earl C. Berger: Cole & Ctroner were never

authorized by the plaintiffs (petitioners herein) to appear

in behalf of plaintiffs on this appeal—whereby they change

sides and oppose their former cestuis, who have authorized

Mr. Berger to appeal and advocate their full legal entitle-

ments, whereas since remand Cole & Groner have opposed

such interests at every step.

42a

APPENDIX F

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 1975

Civil Action #3437-70

No. 75-2262

Vircrnia J. Marcza, et al.

Unrrep States oF AMERICA

Eart C. Bercer, Appellant

Before: Wricut and MacKixnon, Circuit Judges

Order

(filed July 1, 1976)

On consideration of appellant’s motion for stay of dis-

tribution of funds, appellee’s motion for summary affirm-

ance, and of the responses thereto, it is

Orperep by the Court that appellant’s motion for stay

of distribution of funds is denied, and, it is

FurtHer Orperep by the Court that appellee’s aforesaid

motion for summary affirmance is granted.

The Clerk is directed to transmit a certified copy of this

order to the District Court as promptly as the business of

his office permits.

Per Curiam

(end of Order)

43a

(Note by E. C. Berger: The motion for summary affirm-

ance was not made by the real appellee, the defendant

(United States) but by prior attorneys of record, Cole &

Groner, Esqs., who filed a notice of appearence on appeal,

labeling their former cestuis ‘‘appellees’’; the plaintiffs

did not authorize them to appear as opponents of their

former cestuis, only Berger was authorized to a in

behalf of the plaintiffs. —

44a

45a

APPENDIX G

APPENDIX H

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUM

(Caption Omitted in Printing) BIA CIRCUIT

(Caption Omitted in Printing)

Order

(filed July 14, 1976) Before: Wricht and MacKrynon, Circuit Judges

On consideration of appellant’s motion for extension of Order

time to file petition for reconsideration or for reconsider- fled

ation en bane of this Court’s order of July 1, 1976, it is ( August 18, 1976)

On consideration of appellant’s petition for reconsider-

Orperep that the aforesaid motion is granted and the ation and for hear;

time for filing for reconsideration is extended to and in- to. it is or hearing en banc, and of the supplement there-

’

eluding July 30, 1976.

Orperep by the Court that appellant’s petition for re-

For the Court: consideration is denied.

Grorce A. Fisuer, Clerk

7 Per Curiam

For the Court:

Rosert A. Bonner

Chief Deputy Clerk

Georce A. Fisuer, Clerk

By: /s/ Rosert A. Bonner

Robert A. Bonner

Chief Deputy Clerk

46a

APPENDIX I

LAW OFFICES

CoLe anD GRONER

1730 K Street, N.W.

Washington, D.C. 20006

November 14, 1974

Earl C. Berger, Esquire

499 Hamilton Avenue

P.O. Box 1145

Palo Alto, California 94301

Dear Earl:

When the Court of Appeals decision in March was issued

on Tuesday, I was in Islip, New York, taking a deposition

in a case scheduled for trial in December. While I received

the good news during a telephone call with the office on

that day, it was not until last evening that I could read

the decision and savor its full flavor.

It is always pleasant to win a case—particularly a large

case like this one. But winning this case is especially grati-

fying for it is the culmination of so much work over so

many years. It is a remarkable tribute, in particular, to

your tenacity and faith, for you never waivered during a

decade of heartbreaking defeats in a variety of courts.

There will now be many people who will point to Earl

Berger and say ‘‘There is a lucky man’’. But they will

not know the long and lonely days and nights which you

spent in the Anthony House, and Statier Hilton and in

our library working over your notes, reviewing the deci-

sions and writing and rewriting memos and sections of

the briefs. I never met a ‘‘lucky’’ man: but I have met

men who have had vision and who have had diligence and

who were willing to work long and hard against heavy

odds and who have, in the end, succeeded. You are such

a man and I am proud to be your friend.

Sincerely yours,

/s/ Avan Y. Cote

Alan Y. Cole

47a

APPENDIX J

§ 1254. Courts of appeals; ceriiorari: appeal: certified questions

Cases in the courts of appeals may be reviewed by the

Supreme Court by the following methods:

(1) By writ of certiorari granted upon the petition of

any party to any civil or criminal case, before or after

rendition of judgment or decree;

(2) By appeal by a party relying on a State statute

held by a court of appeals to be invalid as repugnant to

the Constitution, treaties or laws of the United tSates,

but such appeal shall preclude review by writ of certiorari

at the instance of such appellant, and the review on appeal

shall be restricted to the Federal questions presented ;

48a

APPENDIX EK

28 § 1346. District Courts; jurisdiction

(2) Any other civil action or claim against the United

States, not exceeding $10,000 in amount, founded either

upon the Constitution, or any Act of Congress, or any

regulation of an executive department, or upon any express

or implied contract with the United States, or for liquidated

or unliquidated damages in cases not standing in tort.

(b) Subject to the provisions of chapter 171 of this

title, the district courts, together with the United States

District Court for the District of the Canal Zone and the

District Court of the Virgin Islands, shall have exclusive

jurisdiction of civil actions on claims eZainst the United

States, for money damages, accruing on and after Janu-

ary 1, 1945, for injury or loss of property, or personal

injury or death caused by the negligent or wrongful act or

omission of any employee of the Government while acting

within the scope of his office or employment, under circum-

stances where the United States, if a private person, would

be liable to the claimant in accordance with the law of the

place where the act or omission occurred.

(ec) The jurisdiction conferred by this section includes

jurisdiction of any set-off, counterclaim, or other claim

or demand whatever on the part of the United States

against any plaintiff commencing an action under this

section.

(d) The district courts shall not have jurisdiction under

this section of:

(1) Any civil action or claim for a pension;

(2) Any civil action or claim to recover fees, salary, or

compensation for official services of officers or employees

of the United States. June 25, 1948, c. 646, 62 Stat. 933;

Apr. 25, 1949, c. 92, § 2(a), 63 Stat. 62; May 24, 1949, c. 139,

§ 80(a), (b), 63 Stat. 101; Oct. 31, 1951, ¢. 655, § 50(b),

65 Stat. 727; July 30, 1954, c. 648, § 1, 68 Stat. 589; July 7,

1958, Pub.L. 85-508, § 12(e), 72 Stat. 348.

(d) (2) Amended 1970 Pub. L. 91-350 (1a) to give Dis-

trict Courts concurrent jurisdiction up to $10,000 for salar-

ies (See App. B, at p. 14a).

49a

APPENDIX L

28 U.S.C. § 2411. Interest

( a) In any judgment of any court rendered (whether

against the United States, a collector or deputy collector

of internal revenue, a former collector or deputy collector,

or the persoual representative in case of death) for any

overpayment in respect of any internal-revenue tax, in-

terest shall be allowed at the rate of 6 per centum per

annum upon the amount of the overpayment, from the

date of the payment or collection thereof to a date pre-

ceding the date of the refund check by not more than

thirty days, such date to be determined by the Commis-

sioner of Internal Revenue. The Commissioner is author-

ized to tender by check payment of any such judgment,

with interest as herein provided, at any time after such

judgment becomes final, whether or not a claim for such

payment has been duly filed, and such tender shall stop the

running of interest, whether or not such refund check is

accepted by the judgment creditor.

(b) Except as otherwise provided in subsection (a) of

this section, on all final judgments rendered against the

United States in actions instituted under section 1346 of

this title, interest shall be computed at the rate of 4 per

centum per annum from the date of the judgment up to

but not exceeding, thirty days after the date of approval

of any appropriation Act providing for payment of the

judgment. June 25, 1948, c. 646, 63 Stat. 973; May 24, 1949

e. 139, § 120, 63 Stat. 106. mains

50a

APPENDIX M

28 U.S.C. § 2678. Attorney fees: penalty

No attorney shall charge, demand, receive, or collect for

services rendered, fees in excess of 25 per centum of any

judgment rendered pursuant to section 1346(b) of this title

or any settlement made pursuant to section 2677 of this

title, or in excess of 20 per centum of any award, compro-

mise, or settlement made pursuant to section 2672 of this

title.

Any attorney who charges, demands, receives, or collects

for services rendered in connection with such claim any

amount in excess of that allowed under this section, if

recovery be had, shall be fined not more than $2,000 or

imprisoned not more than one year, or both.

As amended July 18, 1966, Pub.L. 89-506, 4 4, 80 Stat. 307.

5la

APPENDIX N

Rule 19. Joinder of Persons Needed for Just Adjudication.

(F.R.C.P.)

(a) Persons to be Joined if Feasible. A person who is

subject to service of process and whose joinder will not

deprive the court of jurisdiction over the subject matter

of the action shall be joined as a party in the action if (1) in

his absence complete relief cannot be accorded among those

already parties, or (2) he claims an interest relating to

the subject of the action and is so situated that the dis-

position of the action in his absence may (i) as a practical

matter impair or impede his ability to protect that interest

or (ii) leave any of the persons already parties subject

to a substantial risk of incurring double, multiple, or other-

wise inconsistent obligations by reason of his claimed in-

terest. If he has net been so joined, the court shall order

that he be made a party. If he should join as a plaintiff

but refuses to do so, he may be made a defendant, or, in

a proper case, an involuntary plaintiff. If the joined party

objects t» venue and his joinder would render the venue

of the action improper, he shall be dismissed from the

action.

(b) Determination by Court Whenever Joinder not

Feasible. If a person as described in subdivision (a) (1)-(2)

hereof cannot be made a party, the court shall determine

whether in equity and good conscience the action should

proceed among the parties before it, or should be dismissed,

the absent person being thus regarded as indispensable.

The factors to be considered by the court include: first,

to what extent a judgment rendered in the person’s ab-

sence might be prejudicial to him or those already parties;

second, the extent to which, by protective provisions in the

judgment, by the shaping of relief, or other measures, the

prejudice can be lessened or avoided; third, whether a

judgment rendered in the person’s absence will be ade-

52a

quate; fourth, whether the plaintiff will have an adequate

remedy if the action is dismissed for nonjoinder.

serting a claim for relief shall state the names, if known

to the pleader, of any persons as described in subdivision

(a)(1)-(2) hereof who are not joined, and the reasons why

they are not joined.

(d) Exception of Class Actions. This rule is subject to

the provisions of Rule 23.

As amended Feb. 28, 1966, eff. July 1, 1966.

53a

APPENDIX O

Rule 52. Findings by the Court (F.R.C.P.)

(a) Effect. In all actions tried upon the facts without a

jury or with an advisory jury, the court shall find the

facts specially and state separately its conclusions of law

thereon, and judgment shall be entered pursuant to Rule

58; and in granting or refusing interlocutory injunctions

the court shall similarly set forth the findings of fact and

conclusions of law which constitute the grounds of its

action. Requests for findings are not necessary for pur-

poses of review. Findings of fact shall not be set aside

unless clearly erroneous, and due regard shall be given

to the opportunity of the trial court to judge of the credi-

bility of the witnesses. The findings of a master, to the

extent that the court adopts them, shall be considered as

the findings of the court. If an opinion or memorandum

of decision is filed, it will be sufficient if the findings of

fact and conclusions of law appear therein. Findings of

fact and conclusions of law are unnecessary on decisions

of motions under Rules 12 or 56 or any other motion

except as provided in Rule 41(b).

(b) Amendment. Upon motion of a party made not later

than 10 days after entry of judgment the court may amend

its findings or make additional findings and may amend

the judgment accordingly. The motion may be made with

a motion for a new trial pursuant to Rule 59. When find-

ings of fact are made in actions tried by the court without

a jury, the question of the sufficiency of the evidence to

support the findings may thereafter be raised whether or

not the party raising the question has made a motion to

amend them or a motion for judgment.

As amended Dec. 27, 1946, eff. March 19, 1948; Jan. 21,

1963, eff. July 1, 1963.

54a

APPENDIX P

Rule 60. Relief from Judgment or Order (F.R.C.P.)

(a) Clerical Mistakes. Clerical mistakes in judgments,

orders or other parts of the record and errors therein

arising from oversight or omission may be corrected by

the court at any time of its own initiative or on the motion

of any party and after such notice, if any, as the court

orders. During the pendency of an appeal, such mistakes

may be so corrected before the appeal is docketed in the

appellate court, and thereafter while the appeal is pending

may be so corrected with leave of the appellant court.

(b) Mistakes; Inadvertence; Exclusable Neglect; Newly

Discovered Evidence; Fraud, etc. On motion and upon such

terms as are just, the court may relieve a party or his

legal representative from a final judgment, order, or pro-

ceeding for the following reasons: (1) mistake, inadver-

tence, surprise, or excusable neglect; (2) newly discovered

evidence which by due diligence could not have been dis-

covered in time to move for a new trial under Rule 59(b) ;

(3) fraud (whether heretofore denominated intrinsic or

extrinsic), misrepresentation, or other misconduct of an

adverse party; (4) the judgment is void; (5) the judgment

has been satisfied, released, or discharged, or a prior

judgment upon which it is based has been reversed or

otherwise vacated, or it is no longer equitable that the

judgment should have prospective application; or (6) any

other reason justifying relief from the operation of the

judgment. The motion shall be made within a reasonable

time, and for reasons (1), (2), and (3) not more than one

year after the judgment, order, or proceeding was entered

or taken. A motion under this subdivision (b) does not

affect the finality of a judgment or suspend its operation.

This rule does not limit the power of a court to entertain

an independent action to relieve a party from a judgment,

order, or proceeding, or to grant relief to a defendant not

55a

actually personally notified as provided in Title 28, U.S.C.,

§ 1655, or to set aside a judgment for fraud upon the

court. Writs of coram nobis, coram vobis, audita querela,

and bills of review and bills in the nature of a bill of review,

are abolished, and the procedure for obtaining any relief

from a judgment shall be by motion as prescribed in these

rules or by an independent action.

As amended Dec. 27, 1946, ec. Mar. 19, 1948; Dee. 29, 1948,

eff. Oct. 20, 1949.

56a

APPENDIX Q

Retainer

Undersigned hereby retains the American law firm of

Lorser, Voce, & Bercer

16 Rue Chauveau

Neuilly sur Seine, France

and such associate counsel as it may engage, to take all

appropriate steps to enforce my claim against the United

States Government for unpaid portions of salary and wages

due me as a school teacher in the Overseas Dependents’

Schools operated by the Department of Defense, which

salary was set under Public Law 86-91 (73 Stat. 213) en-

acted July 17, 1959.

My employment commenced 25 August 1961, and

[terminated ...........- ] I am still so employed (if still

employed strike the word ‘‘terminated”’ and insert instead :

‘**T am still so employed’’).

By way of compensation for said attorneys’ professional

services I hereby authorize them to deduct one-fourth of

the gross recovery allotted to me, or, if the Court having

jurisdiction, ,on its own motion, orders a different per-

centage or fee then such different percentage or fee shall

be deducted.

It is understood that all expenses and costs incurred

shall be ratably apportioned among the many claimants

in relation to each claimant’s gross award and deducted

therefrom.

I hereby contribute the sum of $5.00 towards such ex-

penses and costs; it being understood that if no award

is made then my liability in the premises shall be limited

entirely to the amount stated above as my contribution,

57a

and that I will not be liable to anyone for professional

services rendered.

Dated: 25 March 1965.

signature: /s/ Virornta J. Marcu

full name printed in block letters:

Vircinia JEAN Marcu

name and address of current school printed in

block letters: 7

Box 11855, APO 09285

permanent Stateside address, printed in block letters:

443 Mississrpp1, San Francisco, CaLirorNnia

" Phone: 647-3417

Nore: Please indicate on the reverse-side of this sheet the

various schools of ODS in which you have been employed,

giving as much data as possible upon which to

your claim. If MA please indicate. mice

58a

APPENDIX R

Affidavit

State oF CALIFORNIA

County or Contra Costa, 8s:

Josern B. Crawrorp, being first duly sworn, deposes and

says:

That presently he is Assistant Superintendent of Schools,

Mt. Diablo Unified School District, Contra Costa County,

California.

That he acted as the spokesman in negotiating the agree-

ment for retaining the legal services of Mr. Earl C. Berger,

and Mr. Berger’s legal associates, in the year 1965, in

behalf of the Overseas Education Association, Inc., (OEA)

as representative of all teachers employed in the Overseas

Dependents Schools operated by the Department of De-

fense. The Overseas Education Association Inc. (OEA)

was then the recognized representative of overseas teach-

ers, and still is.

Deponent was employed by the Department of Defense

(DOD) as a classroom teacher during the period 1958 to

1967 when he resigned to qualify as a Doctor of Education

at Harvard University, and is so qualified.

That in negotiating for Mr. Berger’s professional serv-

ices to advocate the rights of the Overseas teachers (to

be paid salaries comparable to those prevailing in the

United States in the larger urban district pursuant to

Public Law 86-91) your deponent acted in concert with

the members of the Executive Committee of OEA, which

is composed of its elected officers and elected Area Repre-

sentatives, who represent the teachers in the several dif-

frent Areas in the 29 foreign countries throughout the

world. At that time deponent was President of OEA and

Chairman of its Executive Committee (1964-65 and 1965-

59a

66). That such negotiations for the professional services

of counsel took place in Frankfurt, Germany, at a regular

meeting of the Executive committee following litigation

in the U.S. District Court, (Washington, D.C.) and the

US. Court of Appeals (D.C.). That action, entitled Mitch-

ell, Driver, Aliano, et al. vs. United States, sought to man-

date the Secretary of Defense to implement the Overseas

Teachers Pay & Personnel Practices Act, Public Law 86-91

to pay the teachers full salaries in accordance with that

Act, which the Department of Defense (DOD) refused to

do; instead DOD discounted statut

proximately 27%. ory pay rates by ap-

To the disappointment of all concerned i

the trial court

and the appellate court dismissed the complaint in Mitchell.

It appeared hopeless that f itigati i

ee aha __ urther litigation could achieve

At that time annual dues for member

which developed a total income of im A ple pica

same being used principally for the travel expenses of

members of the Executive Committee and officers to travel

to Frankfurt where bi-monthly meetings were held. OFA

was clearly not in a position to finance further litigation.

Acting as spokesman for the teachers, your d

. . 7

a of Mr. Berger, who for more San, ton onal aed

s oe 3 Counsel to OEA without compensation, whether

ro entertain handling the further litigation on a

ay ncy basis, namely on a ‘‘no cure, no pay’’ basis.

- nin 2 was offered a contingency basis of one-third

robes actually recovered. A sample copy of the retainer

~ signed by about 3,000 teachers) is attached. Mr.

erger voluntarily stated that 25% would be acceptable t

him. His offer was gladly accepted. a

Mr. Berger suggested that the ma

tter be next

to the U.S. Court of Claims. But at that time tay ane

Claims would not entertain class actions. Each claimant

60a

had to be named as a separate plaintiff. Claims were en-

tered in that Court, and a separate filing fee was paid for

each plaintiff.

Mr. Berger undertook to exhaust all remedies, in any

and all courts, regardless of how much time or how many

trips to Washington would be required, on the 25% con-

tingency basis.

Inasmuch as the matter was being handled on a straight

contingency basis, records were not kept of time devoted

by Mr. Berger in our behalf. In spite of careful prepara-

tion and presentation, our claim was again turned down,

this time by the Court of Claims. Since then Mr. Berger

has been assisted by the prestigious law firm of Cole &

Groner, Esqs., of Washington, D.C., well known for prac-

tice before the Supreme Court, but a Petition for a Writ

of Certiorari to the Supreme Court was denied.

Apparently the Court of Claims, in a divided opinion

decision, felt that the wording of the Pay Act calling for

overseas teachers’ salaries ‘‘in relation to’’ salaries for

comparable services in urban districts in the United States,

conferred ‘‘discretion’’ on the Secretary of Defense to

pay salaries out of relation to salaries prevailing in the

States. Inasmuch as the legislative history of the Pay Act

unmistakably demonstrates Congressional intent to pay

overseas teachers salaries equal to salaries paid in the

States, Mr. Berger, accompanied by your deponent and

Mr. Cecil E. Driver (former President of OEA, at that

time OEA Executive Secretary) traveled to Washington,

appeared before various Congressional Committees, and

sueceeded in having the Teachers Pay Act amended to

substitute the words ‘‘in relation to’’, to: salaries ‘‘equal

to’’ those prevailing in the United States.

Nevertheless the DOD again refused to honor the Pay

Act. It continued to pay substantially less than rates pro-

vided by statute, paying salaries substantially out of rela-

tion to and unequal to Stateside salaries.

6la

Mr. Berger was again asked by the Executive Committee

of OEA, and by your deponent as President of OEA,

prog ol he pen _ the amendment to the Act on the

same basis as ore, namely on the 25% conti

basis. Mr. Berger consented, and through ed the my od

of Cole & Groner. It was felt unnecessary to procure new

Retainers as the original Retainers are without limitation

of time, applying to all litigation aimed at the common,

continuing objective. Accordingly a new action entitled

Chambers, et al. vs. United States was commenced in the

U.S. District Court, Alexandria, Virginia. However the

Court referred to the split decision of the Court of Claims

which held that salaries ‘‘in relation to’’ Stateside salaries

permitted the Secretary of Defense to pay salaries at

his diseretion’’ and dismissed the Complaint, although it

was based upon the Amendment to the Pay Act mandating

salaries ‘‘equal to’’ Stateside salaries. The U.S. Circuit

Court of Appeals, (Richmond, Va.) affirmed the dismissal.

Another writ to the Supreme Court failed.

The quest for justice failed again. Further a

. tte

seemed hopeless. Nevertheless Mr. Berger felt thet x

cause our cause was just, justice would finally prevail.

Again he consented to pursue the cause based on the same

25% contingency basis, and the instant action entitled

March et al. vs. United States was commenced in the US.

District Court for the District of Columbia in November

1970. Finally the Honorable June Green, J udge, granted

partial relief. The Government appealed, the teachers cross-

appealed for the other pay factors involved in computing

salaries. The US. Court of Appeals rendered a decision

granting plaintiffs substantially all the relief prayed for.

by decision dated November 12, 1974.

It is important to point out that, at no ti during

*,se * . time th

10 years of litigation did anyone take exception to the ra

basis noted above. No member of OEA, no non-member

ever raised any question as to the agreed percentage fee.

62a

Deponent is informed that the OEA Executive Committee

invited Mr. Berger after November 12, 1974, to explain

what remained to be done to effect payment. Mr. Berger

did this, explaining how complicated the matter was, in-

volving separate computations for more than 7,000 teach-

ers per year, for at least 9 years, thus approximately

63,000 (or more) separate computations, because of the

different years and different rates per year, different steps

in grade per teacher, different entitlements per teacher

based upon individual educational credits, etcetera. Mr.

Berger outlined the history of this litigation, that goes

back more than a dozen years.

Your deponent points out that the 25% contingent basis

anticipated one action, not a series of separate actions

over a period of ten years. However, Mr. Berger and his

co-counsel fully and diligently processed three (3 )separate

actions in full including two appeals, and two writs to the

Supreme Court; and finally succeeded. A matter of plain

arithmetic demonstrates that three separate actions di-

vided into the 25% results in 8.33% per separate and

distinct lawsuit; and that 2%, instead of 25%, results in

an ex post facto discount of 87.5%! It was not the teach-

ers’ intention to penalize their counsel and procure 10

years of valuable legal services for a token 2%.

Accordingly your deponent unhesitatingly joins in the

sense and desires of the current OEA Executive Com-

inittee, and OEA officers, not to disavow the Agreement

made years ago, that was negotiated by your deponent

and thereafter reconfirmed. The Agreement is a continu-

ing Agreement, without limitation of time, without limita-

tion of efforts, skill and persistence, to the great benefit

of thousands of American teachers in foreign countries.

And, without this litigation the teachers would continue

to lose pay in the future.

63a

Deponent will be pleased to appear before this Court

to testify to the foregoing and any other information the

Court desires. He is informed that all his successors Presi-

dents of Overseas Education Association desire to do the

same, and likewise members of the OEA Executive Com-

mittee.

Dated: August 4, 1975.

/s/ Joserxn B. Crawrorp

Joseph B. Crawford, Ed.D.

(Subscription Omitted in Printing)

64a

APPENDIX S

Statement Concerning Fee Arrangement in Teachers’

Back-Pay Litigation

Undersigned is the Vircrnia J. Marcu, first named plain-

tiff in the action of March et al vs. United States, No.

3437-70 U.S. District Court, Washington, D.C.

I was the elected Secretary of Overseas Education As-

sociation, Inc. in 1967, and thereafter; as such a Member

of the Executive Committee, I took part in and clearly

recall all negotiations of the Committee concerning the

authorization and fee arrangement made with Mr. Earl

C. Berger, as detailed in the Affidavit of Joseph B. Craw-

ford, dated August 4, 1975, which I have read and confirm

all statements therein. I personally agreed to the 25%

contingency retainer in the action before this Court, in-

dividually and in my representative capacity. Briefly: it

was clearly understood by the Executive Committee, and

by all teachers with whom I have ever had contact, that

the fee arrangement and authorization was a continuing

one until the back-pay problem would be finally concluded.

The foregoing statement is made under penalty of

perjury.

Dated: August 4, 1975

/s/ Vircrsta M. Crawrorp

Vircinia J. Marcu, now

(Mrs.) Virginia M. Crawford.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.