# Petition — Berger v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0897%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1977 - **Citation:** 429 U.S. 1074 ## Text Oe eee 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, Vv THE Unitep States, Respondent. Earu C. Bercer, Petitioner, v 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 ee Eo bit han cea ue as tenes caeens 2 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: SS WD. GRBBEAE) 2c ccccsccncesevasscsevccsesdece 7 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. me 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, v. THe UnitTep States, Respondent. Earu C. Bercer, Petitioner, v. 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 2 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 ee ——eeEeEew~7r—nrn" 3 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 2 4 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. sky tt unt te nab en i aa aaa oe Sr te 5 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 6 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. 7 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 8 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. ee ea 9 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) 10 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. 11 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 12 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 13 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 14 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. 15 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 16 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 17 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).”... - 18 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- 19 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). 20 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 21 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 22 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 23 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. 24 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 la APPENDIX A UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Civil Action No. 3437-70 Vincinia J. Manca, et al., Plaintiffs, v. 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: I. DEFINITIONS 1. As used herein: A. ‘‘Act’’ shall mean the Overseas Teachers Pay and Personnel Practices Act, Public Law 86-91, 73 Stat. 213, 2a 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 3a 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. 4a 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 5a 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 6a (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 Ta 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- 8a 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 9a 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. V. 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 v. Unrvrep States or AMERICA No. 72-2062 Vircrnia J. MARCH, ET AL. v. 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). © S.Rep. No. 141, 86th Cong., Ist Sess. 2 (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. “ 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, v. 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. v. 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 y: 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. (c) Pleading Reasons for Nonjoinder. A pleading as- 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0897%3A1. Public record. Not legal advice.