Petition — Mahroom v. Hook

Supreme Court, U.S,

$+4-+ ~—

.

a MAR 6 1978

SUPREME COURT OF THE UNITED |STATES ,

|_MICHAEL RODAK, JR., CLERK

October Term, 1976

No. a 4 des 1240

ADIBA MAHROOM,

Petitioner,

vs.

COLONEL JOHN HOOK Commandant, Defense

Language Institute, West Coast Branch,

an agency of the U. S. Government;

HOWARD B,. CALLOWAY, Secretary of the

United States Army,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SUSAN DAVIS WALLACE

SAUL M,. WEINGARTEN, INC.

'Fremont Professional Center

Fremont Blvd. & Williams Ave,

Seaside, California 93955

Counsel for Petitioner

SUBJECT INDEX

Page

Opinion Below 1

Jurisdiction 2

Questions Presented for Review 2

Statutes & Regulations Involved 3

Statement of Facts 3

Argument 9

Conclusion , 15

Exhibits:

"A" - Opinion of November 4,

1977 17

"B" - Excerpts from 42 USC

g2000e-16 and

5 CFR 8§8713.215, 713.234 38

& 713.282

TABLE OF AUTHORITIES CITED

Cases

Allen v. U. S. (3rd Cir. 1976)

542 F2d 176 9

Bell v. Brown (D.C. Cir. 1977)

557 F2d 849, 857 10

Clark v. Morgan's Austintown Foods

(D.C. Ohio 1975) 405 F Supp.

1008 10

ii Table of Authorities Cited

(Cases continued) Page

Cleveland v. Douglas Aircraft Co.

(9th Cir. 1975) 509 F2d 1027 12

Coles v. Penney (D.C. Cir. 1976)

531 F2d 609 9

DeMatteis v. Eastman Kodak Co.

(2nd Cir. 1975) 511 F2d 306,

Mod. on reh. 520 F2d 409 10,12

Eastland v. T.V.A. (5th Cir.

1977) 553 F2d 364 4

Electrical Workers v. Robbins &

Myers, Inc. (1976) - U.S. -

50 LEd. 2d 427, 97 S Ct. - 13

Garner v. E.I. DuPont DeNemours

& Co. (4th Cir. 1976)

538 F2d 61l 10

Glus v. Brooklyn Eastern District

Terminal {1959) 359 U.S. 231,

3 LEd. 2d 770, 79 S Ct. 760 11,13

Griggs v. Duke Power Co. (1971)

401 U.S. 424 at 430,

28 LEd. 2d 158,

91S Ct. 849 4, 14,15

Key v. Lumberjack Meats, Inc.

(D.C. Ala. 1977) 434 F Supp.

289 10

Lacy v. Chrysler Corp. (8th Cir.

1976) 533 F2d 353 10

Mahroom v. Hook (9th Cir. 1977)

563 F2d 1369 1, 9

iii Table of Authorities Cited

(Cases continued) Page

McGuire v. Aluminum Co. of America

(7th Cir. 1976) 542 F2d 43 10

McQueen v. EMC Plastic Co.

(D.C. Tex. 1969) 302 F Supp.

881 14

Mungen v. Choctaw, Inc,

(D.C. Tenn. 1975) 402 F. Supp.

1349 10

Page v. U. S. Industries, Inc.

(Sth Cir. 1977) 556 F2d 346 10

Tuft v. McDonnel Douglas Corp.

(8th Cir. 1975) 517 F2d 1301 10

Williams v. Southern Union Gas Co,

(1lOth Cir. 1976) 529 F2d 483 10

Wong v. The Bm Marche (9th Cir.

1975) 508 F2d 1249 12

Zambuto v. AT&T (5th Cir. 1977)

544 F2d 1333 12

Statutes

Civil Rights Act of 1964,

as amended 14

Sec. 717(c) 6, 7

Title VII 2, 3.

Equal Employment Opportunity

Act of 1972 5

Federal Employers' Liability

Act

13

iv Table of Authorities Cited

(Statutes continued)

5 CFR 8713.215

§713.234

8713 .282

28 USC 61254

61343

42 usc 62000(e) et seq.

82000e-5

$2000e-5 (c)

82000e-16

§2000e-16(c)

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IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1976

No.

ADIBA MAHROOM,

Petitioner,

vs.

COLONEL JOHN HOOK Commandant, Defense

Language Institute, West Coast Branch,

an agency of the U. S. Government;

HOWARD B. CALLOWAY, Secretary of the

United States Army,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The above-named petitioner respectfully

prays that a writ of certiorari issue to

review a portion of the decision of the

United States Court of Appeals for the

Ninth Circuit entered in this proceedi

on November 4, 1977. ;

OPINION BELOW

The opinion of the Court of Appeals

is reported at 563 F2d 1369. Said opinion

is attached hereto as Exhibit "A".

2

JURISDICTION

The decision of the Court of Appeals

for the Ninth Circuit was made and entered

on November 4, 1977, in Case No. 75-2885.

A timely petition for rehearing was denied

on December 5, 1977, and petition for

certiorari was filed within 90 days of that

Gate. 28 USC 81254 confers on this Court

jurisdiction to review the judgment in

question by certiorari.

Petitioner seeks a writ of certiorari

to review that portion of the judgment of

the Court of Appeals which affirmed in

part the decision of the District Court.

Said judgment affirmed in part and reversed

and remanded in part the judgment of the

U. S. District Court for the Northern

District of California, Honorable LLOYD H.

BURKE, Judge, in Case No, C-73-2295-LHB

which dismissed plaintiff's (petitioner

herein) complaint brought under the pro-

visions of Title VII of the Civil Rights

Act of 1964, as amended, 42 USC 882000(e)

st seq.

QUESTIONS PRESENTED FOR REVIEW

1. When does the 30 day period to

file a federal action begin to run ina

Title VII suit against a federal agency

in which the complainant never receives

a “right to sue" letter?

2. Is the 30 day period embodied in

42 USC 82000e-16(c) absolute in the sense

that it would prohibit the application

of the doctrine of estoppel to extend the

period to file suit, regardless of failure

of notice?

3

3. Was the rule of administrative

res judicata properly applied to bar

consideration of petitioner's claim of sex

discrimination?

STATUTES AND REGULATIONS INVOLVED

The statute involved is Title VII of

the Civil Rights Act of 1964, as amended,

42 uSC 882000(e) et seq. The Civil

Service regulations involved are 5 CFR

§8713.215, 713.234, 713.282. The text of

these statutes and regulations is

appended hereto as Exhibit "B".

STATEMENT OF FACTS

Petitioner, ADIBA MAHROOM, is a female

naturalized citizen of Iragi descent, the

wife of an Arabic language instructor at

the Defense Language Institute, West

Coast Branch (DLI). She is an experienced

teacher having advanced degrees in educa-

tion and, during two temporary teaching

positions at the DLI, had established her

status as a competent instructor in the

esteem of her supervisor. Few women have

held permanent instructor's positions in

the DLI's Arabic Department. In 196l,

petitioner was informed that she could not

obtain a permanent teaching position due

to her marital status and the resulting

applicetion of the DLI's anti-nepotism

policy which prohibited the employment of

close family members on the teaching

staff (all of whom were men) if as quali-

fied non-related applicants could be found.

In 1971, the DLI announced that it

was seeking to employ permanent instructors

4

assigned to the Arabic Department and,

although Ms. Mahroom applied for one of

the positions, she was neither inter-

viewed nor selected.

On October 28, 1971 petitioner filed

a formai Equal Employment Opportunity

(EEO) complaint of discrimination based

upon sex and national origin with the

Department of Army. Petitioner was not

represented by legal counsel as the

attorneys she consulted refused to

undertake representation. After an

administrative hearing was held, the

Hearings Examiner concluded that petitioner

had not been a victim of discrimination.

The findings of the Hearing Examiner which

were accepted and adopted by the Department

of Army failed to consider whether the

anti-nepotism policy which purported to be

neutral on its face, operated “to ‘freeze'

the status quo of prior discriminatory

employment practices", prohibited by

Griggs v. Duke Power Co. (1971) 401 U. S.

424 at 430, 28 LEd.2d 158, 91 S. Ct. 849.

Rather, the Hearing Examiner concluded

that “(t)he complainant's allegation that

she was not selected because she is the

wife of an instructor in the Arabic Depart-

ment does not strictly come within the

purview of this complaint procedure".

The Hearing Examiner went on to recite

the language of the anti-nepotism policy

but omitted to decide whether the policy

was discriminatory in application.

After appeal of the final decision of the

Department of Army to the Board of Appeals

and Review of the Civil Service Commission

(BAR) on March 22, 1973, the BAR notified

petitioner of the final agency action

affirming the Army's decisions. However,

5

the BAR did not sent petitioner a "Right

to Sue" letter informing her of her right

to initiate a civil action in federal

court within 30 days.

Following receipt of the BAR decision,

petitioner contacted several legal services

programs seeking help or advice on the

prosecution of her claim. One of the

agencies contacted informed her that she

had lost her opportunity to file a civil

suit by reason of the expiration of the

30 day period which began running upon

receipt of notice of final agency action.

Upon receiving this information, petitioner

wrote to the BAR and asked why she had not

been notified of her right to sue and

requested an extension of time to file

suit. On July 5, 1973, the Civil Service

Commission (CSC) responded, stating that

under its interpretation, the Equal Employ-

ment Opportunity Act of 1972 (amending

42 USC 82000e-16 to allow federal employees

to file court actions) was not retroactive,

did not apply to alleged acts of discrimina-

tion occurring prior to March 24, 1972,

and that she therefore had no right to

bring a civil suit. The letter stated in

part:

"It is our interpretation that

notification of the right to file a

Civil action under the provisions.

of the Equal Employment Opportunity

Act of 1972 arises only when the

alleged act or acts of discrimination

occurred on or after March 24, 1972,

the date the Act became effective.

Because your complaint was filed on

October 28, 1971, notice of a right

to file a civil action was not included

in the Board's decision in your case."

6

Exhibit 1, P. 87. This letter was signed

by William P. Berzak, Chairman, Board of

Appeals & Review for the Civil Service

Commission.

Petitioner, still unrepresented,

believed and accepted the representations

of the CSC that she did not have the right

to file suit and abandoned her efforts to

obtain review in federal court.

In 1973, another teaching position in

the Arabic Department at the DLI was avail-

able, petitioner applied for the position

and, again, was not selected. In response,

petitioner filed a-second complaint alleging

discrimination based on sex and national

origin on July 27, 1973.

On August 6, 143, by letter, the

Equal Employment Opportunity Officer for

the DLI rejected the complaint on the

grounds that administrative res judicata

embodied in 5 CFR 8713.215 barred the suit

because it set forth identical matters

contained in the previous complaint. .

The letter also informed petitioner of her

right to file suit within 30 days or,

alternatively, to appeal to the BAR within

15 days. Petitioner chose to appeal to the

BAR, which affirmed the agency decision

and sent notice of final agency action and

notice of right to sue. In this letter,

the BAR stated in part:

"Civil Service Commission Regulations

provide that the Board's decision is

final and that there is no further

right of administrative appeal.

However, if the complainant is not

satisfied with this decision, she is

authorized by section 717 (c) of the

7

Civil Rights Act of 1964 as amended

on March 24, 1972 to file a civil

action in an appropriate U. S.

District Court within thirty (30)

calendar days of her receipt of this

decision. (Emphasis added) Exhibit

l, pe 4.

This letter was signed by William P.

Berzak, Chairman, Board of Appeals &

Review for the Civil Service Commission.

Within this thirty day period after

receipt of the BAR's letter, petitioner

for the first time, obtained the services

of an attorney who timely filed suit on

her 1973 complaint in the United States

District Court for the Northern District

of California on December 20, 1973. Said

complaint invoked the jurisdiction of the

court pursuant to 28 USC 81343 and 42 USC

§82000e, et seq.

On April 24, 1975, respondents moved

to dismiss or for summary judgment. Because

Petitioner had substituted counsel on May

29, 1975, the hearing was postponed. On

June 23, 1975, in addition to a memorandum

in opposition to respondents' motion, petition

er filed a motion for leave to amend

the complaint to add a cause of action

based on the 1971 administrative proceed-

ings. Petitioner contended that she was

entitled to amend her complaint because

1) the Equal Employment Opportunity Act

of 1972 should be applied retroactively

to the time of enactment; 2) the doctrine

of equitable estoppel extended the time

to file suit because the misrepresentations

of the CSC had precluded petitioner from

asserting her rights; and 3) since she

had never received a "right to sue" letter

8

on her 1971 EEO complaint, the 30 day

period to file suit had never begun

running and, thus, her request to amend

was timely. Additionally, petitioner

contended that her 1973 EEO complaint

raised new issues, that her claim of sex

discrimination vis-a-vis the DLI's anti-

nepotism policy had never been decided

and that the doctrine of administrative

res judicata was improperly applied.

On August 1, 1975, the motions of

petitioner and respondents were heard. The

respondents motion for summary judgment

was granted and petitioner's motion to

amend was denied.

Petitioner appealed to the Court of

Appeals for the Ninth Circuit and raised

the same issues argued in the lower court.

On November 4, 1977, the Court of Appeals

issued its decision holding that the issue

of retroactivity of the Equal Employment

Opportunity Act of 1972 had been resolved

by this Court in petitioner's favor. The

Court of Appeals found that the 30 day

period to file suit on petitioner's 1971

EEO complaint commenced running at the

time that petitioner received the "right

to sue" letter from the BAR on her second,

1973 complaint. The Court held that since

this 30 day period expired on December 21,

1973, petitioner's request to amend was

untimely and jurisdictionally barred. The

Court of Appeals failed to discuss the

issues of estoppel and administrative res

judicata but remanded the case to the

District Court for further consideration

of petitioner's 1973 EEO complaint.

Thereafter, petitioner petitioned the Court

for rehearing which was denied on December

5, 1977.

ARGUMENT

1. THE TYPE OF NOTICE SUFFICIENT TO

START TIME RUNNING ON CIVIL ACTIONS

UNDER TITLE ViI SHOULD BE UNIFORM.

Federal courts have been faced with

the recurring problem of when the 90 or

30 day period to file a civil suit under

42 USC 82000e-5 or 42 USC 82000e-16,

respectively, begins to run and have

arrived at conflicting decisions on this

issue. In suits against federal agencies,

the Ninth, Third and District of Columbia

Circuit Courts of Appeals have held that

the “right to sue" letter initiates the

30 day period.1/ But the Fifth Circuit

has departed from this line of cases and

has held that the 30 day period begins to

run upon receipt of notice of final agency

action.

In suits against private employees,

the federal courts in the various circuits

also have taken divergent positions.

Some state that the 90 day period to file

Suit begins to run from receipt of the

1/ Mahroom v. Hook (9th Cir. 1977) 563

F2d 1369; Coles v. Penney (D.C. Cir.

1976) 531 F2d 609; Allen v. U. S. (3rd

Cir. 1976) 542 F2d 176.

2/ Eastland v. T.V.A. (5th Cir. 1977)

553 F2d 364.

10

“right to sue" letter3/; others hold

that the 90 day period commences upon

notice of final agency action4/; while

still others find that the notice of

failure of concilliation activates the

periods/.

In the present case, the Ninth Circuit

determined that a type of constructive

notice will initiate the 30 day period,

which is incompatible with the spirit of

the law9/,

3/ Garner v. E.I. Du Pont De Nemours &

Co. (4th Cir. 1976) 538 F2d 611; McGuire

v. Aluminum Co. of America (7th Cir. 1976)

542 F2d 43; Williams v. Southern Union

Gas Co. (10th Cir. 1976) 529 F2d 483;

4/ Page v. U. S. Industries, Inc. (5th

Cir. 1977) 556 F2d 346; Key v. Lumberjack

Meats, Inc. (D.C. Ala. 1977) 434 F. Supp.

289; Dematteis v. Eastman Kodak Co.

(2nd Cir. 1975) 511 F2d 306; Lacy v.

Chrysler Corp. (8th Cir. 1976) 533 F2d 353.

5/ Mungen v. Choctaw, Inc. (D.C. Tenn.

1975) 402 F Supp. 1349; Clark v. Morgan's

Austintown Foods (D.C. Ohio 1975) 405 F

Supp. 1008; Contra: Tuft v. McDonnel

Douglas Corp. (8th Cir. 1975) 517 F2d 1301.

6/ Bell v. Brown (D.C. Cir. 1977) 557 F2d

849, 857 stated "We cannot believe that

Congress willed the subversion of Sec.

717(c) (42 USC 82000e-5(c)) by an incompat-

ible invocation of imputed notice”.

+

ll

It is manifestly unjust to expect that a

"right to sue" letter which by its

terms is solely directed to a 1973 EEO

complaint, will notify a layperson

complainant of her rights in regards to

a 1971 EEO complaint. This is especially

true when the complainant has been told

previously by the CSC that she had no

right to bring a civil suit on her 1971

complaint.

This Court has never squarely faced

the issues presented by this Writ. Thus,

this proceeding presents the Court with

the opportunity to settle the issue and

bring uniformity to this area of the law.

2. THE COURT OF APPEAL'S IMPLICIT

RULING VJPON THE ISSUE OF ESTOPPEL

IS CONTRARY TO GLUS V, BROOKLYN

EASTERN DISTRICT TERMINAL AND

OTHER COURTS OF APPEALS DECISIONS.

The Ninth Circuit's decision in the

instant case did not rule on petitioner's

argument that equitable principles should

be applied to extend the period to file

Suit on her 1971 EEO complaint. Thus,

it must be inferred that the Court found

petitioner's contentions to be without

merit. This supposition finds strong

Support from a prior decision of the

Ninth Circuit, Cleveland v. Douglas Aircraft

12

Co. (9th Cir. 1975) 509 F2d 1027. 7/

Other Courts of Appeals are not in

sympathy with this position and have

refused to visit the sins of the EEOC

upon the layman initiating the complaint.

8/ The Ninth Circuit has stated that the

30 day period to file suit is "jurisdic-

tional" 9/ and while the meaning of this

term is not entirely clear, it suggests

that the 30 day period is more than a

statute of limitations. If so, is the

30 day period an integral part of a civil

suit under Title VII which occasions the

extinction of the cause of action upon

the expiration of the statutory period?

If the answer is yes, this interpretation

excludes the operation of the doctrine

of estoppel.

This Court has never decided this

7/ In Cleveland v. Douglas Aircraft Co.,

Supra,the plaintiff dismissed a civil

suit timely initiated after receipt of

a “right to sue" letter at the suggestion

of the EEOC and upon EEOC's assurances

that a dismissal would not prejudice his

right to re-file at a later time.

Plaintiff's second civil suit was held

untimely and the Court stated that the

plaintiff's reliance upon the representa-

tions of the EEOC was unjustified.

8/ See: Zambuto v. AT&T (5th Cir. 1977)

544 F2d 1333; De Matteis v. Eastman

Kodak Co. (2nd Cir. 1975) 520 F2d 409.

9/ Wong v. The Bon Marche (9th Cir. 1975)

508 F2d 1249.

13

important question of federal lawLO/ ana

this case presents the situation in which

the petitioner has been prevented from

asserting her rights because of the

misrepresentations of the CSC. The

government should not be allowed to gain

an advantage by reason of its own errors

and thereby deprive petitioner of her “day

in court". Furthermore, the decision of

the Ninth Circuit cannot be reconciled

with Glus v. Brooklyn Eastern District

Terminal (1959) 359 U. S.-231, 3 LEd. 2d

770, 79 S Ct. 760. LI/

10/ In Electrical Workers v, Robbins &

Myers, Inc. (1976) U. S. , 50 LEd,

° BS ce. , the complainant

contended that equitable principles could

toll the statutory periods embodied in

Title VII but this Court found the argu-

ment inconsistent with the facts.

ll/ In Glus, the employer contended

that estoppel could not be employed to

toll the 3 year period to file suit

under the Federal Employers' Liability

Act because "the time limitation is

an integral part of a new cause of

action and that cause is irretrievably

lost at the end of the statutory ;

period". 359 U. S. at 232. This Cour

dismissed the employer's contentions

and found nothing in the Act or in its

legislative history "to indicate that

this principle of law (estoppel), older

than the country itself, was not to

apply in suits arising under the statute".

359 U. S. at 234.

14

The rationale of Glus, supra, must

apply with equal force to the case

presented herein. The language of the

Civil Rights Act of 1964, as amended,

indicates a Congressional desire for

speedy resolution of employment discrim-

ination claims but not to the exclusion

of equitable principles. Since Title

VII actions are ladened with heavy over-

tones of public interest and such actions

are equitable in nature, such actions

must be governed by equitable considera-

tions.12/

3. THE EFFECT OF THE DOCTRINE OF

ADMINISTRATIVE.RES JUDICATA AS IT

APPLIES TO ANTI-NEPOTISM REGULATIONS

IS OF SUCH PERVASIVE IMPORTANCE THAT

IT SHOULD BE EXAMINED AND CLARIFIED

BY THIS COURT.

This Court has held in various

decisions that where regulations, neutral

and fair on their face, nonetheless have

the effect of perpetuating prohibited

discrimination such regulations cannot

stand.13/ The legally supported anti-

nepotism policy, having a legitimate

object and purpose, has run head on with

the policy that women shall have job

opportunities equal to men. Because of

the vastly greater number of male incum-

bents in the prestigious and highly .

remunerative employment positions, the

12/ See: McQueen v. EMC Plastic Co.

(D.C. Tex. 1969) 302 F Supp. 881.

13/ See: Griggs v. Duke Power Co.

(1971) 401 U. S. 424.

15

chances of women obtaining such positions

are diminished. For example, assuming

that there are 50 married couples and

that the husband in each case is a quali-

fied instructor on the staff of the DLI,

the anti-nepotism policy would prohibit

the employmert of 50 women who might be

as well or better qualified than their

spouses. While it might be true that an

anti-nepotism policy would be fair if

there were 25 men and 25 women incumbents,

in practice it is highly discriminatory

where all incumbents are male, as here.

It can be expected that this question

will be raised repeatedly in a variety

of situations and since the aplication

given in this case is directly counter to

the essense of the law stated in Griggs,

a clear affirmation of the right of equal

opportunity is of vital and urgent

necessity.

CONC LUSION

Depending upon the circuit in which

the Title VII complainant is located, the

30 or 90 day period to file a civil suit

will begin upon receipt of notice of:

l. failure of concilliation; or

2. final agency action; or

3. right to sue.

Further, the availability of estoppel to

toll this period is contingent upon the

particular federal circuit in which the

complaint is filed. Immediate clarifica-

tion of the law is compelled by its present

state of disarray. It is especially

appropriate that this case become the

16

vehicle for Supreme Court resolution of

these issues since the Court of Appeals

has determined that further proceedings

are required on petitioner's action in

any event.

Respectfully submitted,

SSce Miia) etlac

SUSAN DAVIS WALLACE

SAUL M. WEINGARTEN, INC.

Fremont Professional Center

Fremont Blvd. & Williams Ave.

Seaside, California 93955

Counsel for Petitioner

17

EXHIBIT “A"

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ADIBA MAHROOM,

Appellant,

— No. 75-2885

COLONEL JOHN HOOK Com-

mandant, Defense Language

Institute, West Coast

Branch, an agency of the

U. S. Government; HOWARD

B. CALLOWAY, Secretary

of the United States Army

OPINION

Appellees.

mee ee ee eee ee ee ee ee

[November 4, 1977]

Appeal from the United States District

Court for the

Northern District of California

Before: CARTER, WATERMAN,* and

ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge:

*The Honorable Sterry R. Waterman,

Senior Circuit Judge, United States

Court of Appeals, Second Circuit, sit-

ting by designation.

18

Appellant, Adiba Mahroom, an appli-

cant for federal employment, brought

suit against the commandant of the

Defense Language Institute (DLI) at

Monterey, California, and the Secretary

of the Army, principally under Title

VII of the Equal Employment Opportunity

Act of 1972 [42 U.S.C. § 2000e-16(C)],

for employment discrimination upo pthe

basis of sex and national origin.=—

In her complaint, she demanded a declara-

tory judgment, injunctive relief con-

cerning such alleged discrimination,

damages (including lost wages), costs

of suit, and attorneys' fees. After

providing counsel an opportunity to be

heard, the district court denied

appellant's motion for leave to amend

her complaint and granted appellees'

motion for summary judgment, dismissing

the action. We affirm the denial of the

motion for leave to amend, but we

reverse and remand the grant of summary

judgment.

BACKGROUND

The 1971 Complaint

Mahroom, a female naturalized

citizen of Iraqi descent, has twice been

employed at the DLI in temporary

positions as a training instructor in

Arabic. She has received advanced

degrees in education and was con-

sidered to be a good teacher by her

supervisor at DLI.

In 1971, the DLI announced

that teaching positions were open in

the Arabic Department, and instructors

were to be selected from highly-quali-

fied applicants with Egyptian, Syrian

19

, 2/

or Iragi background, in that order.

Mahroom applied for one of the positions;

however, she did not obtain an inter-

view or a position. As she failed

to obtain employment, she filed a formal

complaint on October 28, 1971, alleging

discrimination based upon sex and

national origin.

After an unsuccessful attempt

at an informal resolution of her

grievance, the complaint was forwarded

to the U. S. Army Civilian Appellate

Review Office. An investigator was

assigned to undertake a detailed in-

vestigation of the facts. After care-

fully exploring the matter, the in-

spector reported that student demand

justified establishment of selection

preferences for persons proficient in

the Egyptian and Syrian dialects, and

recommended, therefore, a finding of no

discrimination. On December 29, 1971,

the recommendation was approved by the

Civilian Personnel Office.

Subsequently, Mahroom requested

a hearing before an Appeals Examiner

assigned to the agency by the Civil

Service Commission (CSC), and a hearing

was conducted on March 14-15, 1972. On

June 7, 1972, the Appeals Examiner

issued his report, concluding that

appellant had not been the victim of

discrimination.

On October 27, 1972, the Army's

Director of Equal Employment Opportunity

(EEO) accepted the finding of no dis-

crimination. This, the final decision,

was appealed to CSC's Board of Appeals

and Review (BAR). On March 22, 1973, the

20

BAR affirmed the agency decision. How-

ever, the BAR did not ggnd Mahroom a

"Right-to-Sue" letter.=

Appellant thereafter sought

help from the ACLU and from the San

Pranciscg ,Lawyer's Committee for Urban

Affairs.— The ACLU advised her that

she had 90 days after the BAR's decision

was issued in which to bring a civil

suit, while the Lawyer's Committee in-

formed her that the time for court

action expired 30 days after the final

decision. Upon receiving this informa-

tion, appellant wrote to the BAR, asking

why she was not advised of her right to

sue. On July 5, 1973, the CSC wrote

back to her, stating that under its

interpretation the Equal Employment

Opportunity Act of 1972 (which in-

cluded 42 U.S.C. § 2000e-16) was not

retroactive and that, therefore, she had

no right to notification.=

Appellant went on to request

reconsideg¢gtion of the final agency

decision. — Reasoning that she had not

established a proper basis on which to

reopen the prior decision, the BAR

rejected the request on November 7, 1973.

The 1973 Complaint

Another teaching position in

the Arabic Department at DLI op ned up

in early 1973. Again, appellant applied

for the position and was not selected.

As a result, a second complaint, alleging

discrimination based on sex and national

origin, was filed on July 27, 1973.

21

On August 6, 1973, the EEO

officer for DLI rejected the complaint ,

in accordance with 5 C.F.R. § 713.215-—

for the reason that it set forth identi-

cal matters contained in the previous

complaint. This decision was appealed,

and on November 19, 1973, the BAR

affirmed.

This time appellant was given

her "Right-to-Sue" letter. In this

letter of final action the BAR stated:

"Civil Service Com-

mission Regulations

provide that the

Board's decision is

final and that there

is no further right

of administrative

appeal. However, if

the complainant is

not satisfied with the

decision, she is

authorized by section

717(c) of the Civil

Rights Act of 1964 as

amended on March 24,

1972 to file a civil

action in an appro-

priate U. S. District

Court within thirty (30)

calendar days of her

receipt of this

decision." (Exhibit l,

p. 4)

Mahroom received notice of

this final action on November 21,

1973. Within the requisite thirty days,

she instituted this action in the

22

district court, filing her complaint

on December 20, 1973. On April 24,

1975, the appellees moved to dismiss or,

alternatively, for summary judgment. As

she substituted counsel on May 29, 1975,

the scheduled hearing on the motion was

postponed. On June 23, 1975, she filed

a memorandum in opposition to appellees'

motion and a motion for leave to amend

the complaint by adding a cause of action

based on the 1971 administrative

complaint.

On August 1, 1975, both

motions were heard. The motion to amend

was denied, and the motion for summary

judgment was granted. It is from these

decisions that this appeal follows.

I. The Motion for Leave to Amend

As discussed above, when the

Civil Service Commission's Board of

Appeals and Review finally denied

Mahroom's claim of discrimination, they

did not provide her with her statutory

notice of right to sue or what is

commonly referred to as the "Right-to-

Sue" letter.

Mahroom's claim began in 1971.

The effective date of the Equal Employ-

ment Opportunity Act [42 U.S.C. § 2000Qe,

et segq.] is March 24, 1972. Her claim

was therefore pending administratively

on the effective date of the Act.

Because the Commission

interpreted the Act as not retroactive

to her 1971 claim, they held that she

had no right to notification of her

right to bring suit in federal court.

23

Our first inquiry is to decide

whether the Equal Employment Opportunity

Act is retroactive to cases which are

pending administratively at the time of

the effective date of the Act. Or, in

other words, was Mahroom entitled to

notice of her right to sue once the

administrative agency's decision to deny

her complaint was final?

In Koger v. Ball, 497 F. 2d

702 (4th Cir. 1974), that court held:

"We conclude that

Congress, being fully

aware of the general rule

favoring retrospective

application of pro-

cedural statutes, in-

tended by enacting § 717

(c) [42 U.S.C. § 2000e-16

(c)] to grant employees

consent to sue for redress

of pending cases of pre-

Act discrimination."

(497 F. 2d at 709-709)

And, in Womack v. Lynn, 504 F.

2d 267 (D.C. Cir. 1974) (which adopted

the reasoning of the Koger opinion,

Supra), the court held:

"Section 717(c) is

merely a procedural

statute that affects

the remedies avail-

able to federal employees

suffering from employ-

ment discrimination.

Their right to be free

of such discrimination

has been assured for years.

24

We hold that this

remedial statute

applies retroactive-

ly to proceedings

already pending at the

time of its effective

date, March 4, 1972."

(504 F. 2d at 269)

(emphasis in original).

Womack was followed in Grubbs v. Butz,

514 F. 2a 1323 (D.C. Cir. 1975).

Other cases which follow this reasoning

are: Weahkee v. Powell, 532 F. 2d 727

(10th Cir. 1976); Huntley v. Dept. of

H.E.W., 550 F. 2d 290 (5th Cir. 1977);

Eastland v. Tennessee Valley Authority,

553 F. 2d 364, 369 (5th Cir. 1977); and

Brown v. General Services Administration,

507 F. 2d 1300 (2nd Cir. 1974), aff'd.

425 U.S. 820, 824 n. 4 (The Supreme

Court observing that it had "no occasion

to disturb" the Second Circuit's

decision on retroactivity). See also

Bunch v. United States, 548 F. 2d 336

(9th Cir. 1977) and Davis v. Valley

Dist. Co., 522 F. 2d 827 (9th Cir.

1975), cert. den., 429 U.S. 1090 (1977).

Following this line of authori-

ty we hold that the Equal Employment

Opportunity Act is retroactive to em-

brace claims administratively pending on

its effective date and is therefore

applicable to Mahroom's 1971 action.

Under the Act, 42 U.S.C. § 2000e-12

gives the Commission the authority to

issue suitable procedural regulations to

carry out the provisions of the Act. In

exercise of this authority, the Commis-

sion promulgated, among others, 5 C.F.R.

§ 713.234 and § 713.282.

25

F.R. § 713.234, at the time

provided in pertinent part:

5 G7

in question,—

"The Board of Appeals and

Review shall review the

complaint file and all

relevant written representa-

tions made to the board. . .

The board shall issue a

written decision setting

forth its reasons for the

decision and shall send

copies thereof to the

complainant, his designated

representative, and the

agency. ... . The decision

of the board is final, but

shall contain a notice of

the right to file a civil

action in accordance with

§ 713.282." (emphasis

added)

5 C.F.R. § 713.282 in pertinent

part provides:

"The Commission shall

notify an employee or

applicant of his right to

file a civil action, and

of the 30-day time limit

for filing, in any

decision under § 713.234."

The thirty-day time limit referred to in

these regulations is set out by Congress

in section 717(c) of the Act [42 U.S.C.

§ 2000e-16(c)] which provides that "[w]

ithin thirty days of receipt of notice

of final action. . . . an employee or

applicant for employment, if aggrieved

by the final disposition of his complaint,

26

- « « May file a civil action as provided

in section 706" [42 U.S.C. § 2000e-5].

Therefore, under this statute,

as interprted by the agency designated to

interpret and enforce it, notice must be

given to the employee or applicant that

he has the right to bring an action in

federal court and that he has thirty

days in which to act.

This thirty-day time period is

jurisdictional. If an aggrieved party

does not file his suit within that time

limit, the federal courts have no power

to entertain the suit. Cleveland v.

Douglas Aircraft Co., 509 F. 2d 1027,

1029 (9th Cir. 1975), Wong v. Bon Marche,

508 F. 2d 1249 (9th Cir. 1975). See also

Brown v. General Services Administration,

425 U.S. 820 (1976).

The question which arises once

it has been determined that notice is

required is when does the thirty-day

period begin to run. In Gates v.

Georgia-Pacific Corporation, 492 F. 2d

292, 295 (9th Cir. 1974), we held that

"the 30 day period within which the civil

action may be brought commenced when the

January 23, 1969, formal notice was

received." (emphasis added) We limited

Gates to its facts and left open the

specific question of what form of notice

would trigger the thirty-day period in

other circumstances.

The appellee contends that the

thirty-day period began to run as soon

as Mahroom received notice of the BAR's

final decision, regardless of whether or

not she received any “Right-to-Sue”"

27

letter. We disagree and hold that the

thirty-day time limit does not begin to

run until the aggrieved party has

received actual formal notification of

his statutory right to sue in federal

court. By this we mean receipt of the

so-called "Right-to-Sue”" letter.

In holding this way, we

follow such authority as Coles v. Penny,

531 F. 2d 609 (4th Cir. 1976), where

the Fourth Circuit held that:

", . . the thirty-day

period within which

a civil action may be

filed did not begin

to run until July 18,

1973 - - the first

time at which appellant was

notified [by way of a

"Right-to-Sue" letter]

that he had a right to

bring a civil action

within thirty days."

(531 F. 2d at 617)

And, in Garner v. E. I. DuPont DeNemours

& Co., 538 F. 20 611 (4th Cir. 1976),

that court also stated:

"In conclusion, we hold

that, for reasons sub-

stantially similar to

those given by Judge

McGowan in Coles, it was

within the regulatory

power of the EEOC in

interpreting § 706 (f) (1)

of Title VII to treat only

a formal “right to sue"

letter from the EEOC as

28

constituting the requisite

statutory ‘notice’ which

started the permissible period

for initiating a federal court

case under Title VII." (538 F.

2d at 615)

Other cases which support this result are:

Lacy v. Chrysler Corp., 533 F. 2d 353,

en banc, (8th Cir. 1976), cert. den.,

429 U.S. 959; Tuft v. McDonnel Douglas,

517 F. 2d 1301 (8th Cir. 1975), cert. den.,

423 U.S. 1052 (1976); Williams v. Southern

U. Gas Co., 529 F. 2d 483 (10th Cir. 1976),

cert. den., 429 U.S. 959, and Page v. U. S.

Industries, 556 F. 2d 346 (5th Cir. 1977).

See also, Alexander v. Gardner~Denver Co.,

415 U.S. 36, 47 (1974), and McDonnell Doug-

las Corp. v. Green, 411 U.S. 792, 798 (1973)

(where the Supreme Court noted that one of

the jurisdictional prerequisites to Title

VII suits was that the claimant receive and

act upon Commissioner's statutory notice of

the right to sue).

As we mentioned above, Mahroom

did not receive any "Right-to-Sue” letter.

What she did receive was a letter from the

BAR which deniei her claim of employment

discrimination and stated that "Civil Ser-

vice Regulations provide that the decision

of the Board is final and that there is

no further right of administrative appeal."

(Exhibit 1 at 104)

The Equal Employment Opportunity

Act is a remedial statute to be liberally

construed in favor of the victims of dis-

crimination. Davis v. Valley Dist. Co.,

522 F. 2d 827, 832 (9th Cir. 1974), EEOC

v. Wah Chang Albany Corp., 499 F. 2d 187,

189 (9th Cir. 1974). Accordingly, "courts

29

confronted with procedural ambiguities

ia the statutory framework have, with

virtual unanimity resolved them in favor

of the complaining party.” Davis v.

Valley Dist. Co., supra, quoting Sanchez

v. Standard Brands, Inc., 431 F. 2d 455,

461 (5th Cir. 1970). The broad structure

and purpose of Title VII, as established

by Congress, relies upon laymen, operating

without legal assistance, to initiate both

administrative complaints and lawsuits.

Congress did not intend that such laymen,

not schooled in the finer points of legal

procedure, be presumed to know exactly

what procedural step they must next take

in order to perfect their claims, especially

when they have been conclusively told that

they have no further rights or remedies.

By holding that Mahroom must be specifi-

cally informed in the "Right to Sue" letter

that she has a right to sue and how much

time she has in which to bring the suit,

we give effect to the intent and purpose

of Congress in enacting Title VII.

In this case, Mahroom was a lay-

man and operated without legal assistance

for her 1971 claim. Because the BAR wrote

and told her that their decision was final,

it is not reasonable or within the policy

of Title VII to hold that she should have

known that she had only thirty days to

institute suit from that time. The rea-

soning for this was persuasively stated in

Coles v. Penny, supra, in a factual situa-

tion strikingly similar to the facts of

this case. In Coles the court reasoned:

30

statutory right to sue.

Consider the situation in

which the appellant found

himself in this case. After

two years of administrative

consideration, his claim

was denied by the Board of

Appeals and Review. The notice

he received--that ‘Civil Service

Regulations provide that a deci-

sion of the Board is final and

that there is no further right

to administrative appeal'-- had

a definite right of finality to

it. A trained lawyer might

realize that judicial review

commences when administrative

appeals end, but we do not

believe that such a realization

is likely to spring forth full

blown in the mind of a layman;

the notice actually received may

rather have stifled any inclina-

tion appellant might have had to

pursue the matter any further.

It may be more than coincidental

that appellant filed a timely

action regarding his 1972 com-

plaint, as to which he received

notice of his right to sue,

whereas his failure to bring

an action regarding his 1970

complaint followed a less informa-

tive and possibly misleading

notice. '

(531 F. 2d at 615) (emphasis in

original)

Since Mahroom has never received

"Thirty days is not a long a "Right ‘to Sue" letter on her 1971 action,

period in which to expect . our next inguiry is whether her right to

a pro se complainant to become bring suit can continue indefinitely until

aware of and exercise his

31

the "“Right-to-Sue”" letter is received.

More specifically, the question is whether

Mahroom should have been able in 1975, to

amend her complaint (filed on her 1973 dis-

crimination action) to include her 1971

action. The situation is this. In 197l

she complained of discrimination. Her

claim was denied. She was told the deci-

sion was final, but was not told she could

sue. She did not sue. In 1973 she again

complained of discrimination. Her claim

was again denied. She was told the deci-

sion was final. However, this time she

was told that under the statutes she did

have a right to sue within thirty days.

Under the facts of this case,

we find that the thirty-day time limit

to file a federal suit on both her 1971

and 1973 claims began to run when she

in fact received the "Right-to-Sue"

letter on November 21, 1973, in regard

to her 1973 action.

We find that if Mahroom would

have brought suit on her 1971 action

(or alternatively, amended her 1973

complaint to include her 1971 action),

within the thirty days following receipt

of her “Right-to-Sue" letter on Noven-

ber 21, 1973, the action would have been

timely. This is the precise result that

the Fourth Circuit arrived at in Coles

v. Penny, supra, under that nearly

identical factual situation. In that

case, the appellant Melvin Coles had

filed a 1970 discrimination claim. It

was denied and "finalized" much the

same as Mahroom's claim was. He also

was given no notice of right to sue.

In 1972 he filed another discrimination

claim. This claim was also denied, but

32

he was given the statutory notice of his

right to sue. Within thirty days of

this “Right-to-Sue" letter he filed a

suit on his 1970 claim, as well as a new

1972 claim. The district court found

the 1970 claim untimely and granted

summary judgment against Coles. The

Fourth Circuit reversed and remanded,

holding (as quoted, supra) that the

thirty-day time limit did not begin to

run on the 1970 claim until receipt of

the "Right-to-Sue" letter, which involved

his later 1972 claim.

——

Because of our holding that Mah-

room's right to sue on the 1971 claim was

only timely within thirty days of receipt

of the November 21, 1973, "“Right-to-Sue"

letter, her motion to amend the complaint

over one year and seven months later, was

untimely. The district court properly

denied that motion as it was without

jurisdiction at that time to hear the 1971

claim. Cleveland v. Dougias Aircraft,

Wong v. Bon Marche, and Brown v. General

Services Administration, supra.

II. The Motion for Summary Judgment

Under Chandler v. Roudebush,

425 U.S. 840 (1976), applicants for

federal employment bringing suit under

42 U.S.C. §2000e-16(c) have the same

right to a trial de novo as is enjoyed

by applicants for employment in the

private sector under 42 U.S.C. §2000e-5.

In their memorandum for support

of the motion for summary judgment,

appellees contended that no trial de novo

was required for suits brought under

§2000e-16. This position, of course, was

33

directly rejected in Chandler. However,

Chandler doesnot require a de novo hearing

in every instance; if a complaint brought

under 42 U.S.C. §2000e-5 would be properly

disposed of by summary judgment, then it

is appropriate for a district court to

handle similarly a complaint brought under

42 U.S.C. §2000e-16.

Summary judgment is appropriate

only when the movant has proven that there

is no genuine issue of material fact. See

Federal Rule of Civil Procedure 56(c).

Since the motion for leave to amend was

properly denied, the only controversy

before the district court concerned the

1973 discrimination action. The 1973

action is allegedly barred under 5 C.F.R.

§713.215 for setting forth "identical

allegations" as in the 1971 action. It

is true that the 1971 and 1973 complaints

do set forth the same claims of discrim-

ination, i.e., discrimination on the basis

of sex and her Iraqi national origin.

Appellees countered these claims by

responding each time that priority was

given to applicants proficient in the

Arabic-Egyptian dialect and that Mahroom

was not the victim of any discrimination.

While the complaints do state

Similar actions, we feel that the 1973

complaint did state a cause of action new

and separate from the 1971 complaint

because in 1973 she was competing against

a different set of applicants with poten-

tially different qualifications than she

competed against in 1971. Other facts

may also be different. Her not being

selected from the 1973 applicants has not

yet been considered in the administrative

process. We feel that it is totally

34

inappropriate to forever bar an applicant

for federal employment from either adminis-

trative or judicial consideration of a

discrimination charge simply because that

individual had claimed similar acts of

discrimination at an earlier time and had

not prevailed. Mahroom's 1973 action was

not “identical” to her 1971 action. We

do not believe that 5 C.F.R. §713.215 was

intended to prevent che hearing of discrim-

ination complaints on new causes of action.

Therefore, the stated grounds

for dismissal of her complaint by the

CSC were erroneous. The district court,

in turn, was in error when it granted

summary judgment. The factual allegations

raised by appellant had never been heard

and such a hearing is required by Chandler

v. Roudebush, supra.

Therefore, we reverse and remand

for a trial de novo in accordance with

the Supreme Court's decision in Chandler.

We, of course, do not preclude further

summary judgment motions, if appropriate.

We express no opinion regarding the merits

of Mahroom's allegations.

The reply brief of appellant

has not been considered. No good cause

has been shown for the late filing and

the motion to strike the reply brief is

GRANTED.

AFFIRMED IN PART. REVERSED AND

REMANDED IN PART.

35

FOOTNOTES

Appellant also brought suit under

28 U.S.C. §1343. However, the

Supreme Court has made clear that

42 U.S.C. §2000e-16 provides the

exclusive judicial remedy for claims

of discrimination in federal employ-

ment. Brown v. GSA, 425 U.S. 820

(1976). See also, Eastland v.

Tennessee Valley Authority, 553 F.

2d 364, 371 (5th Cir. 1977).

The Arabic language contains

numerous different dialects. In

each Arabic language class at DLI,

a specialization in one of these

dialects is taught. Appellant is

trained solely in the Arabic-Iraqi

dialect; however, preference in

the selection process was to go to

those trained in the Arabid-

Egyptian dialect. The stated

reasons for this preference were

simply that there were more students

interested in that dialect.and that

there was a sufficient supply of

instructors trained in the Iraqi

dialect to handle the demand.

A "Right-to-Sue" letter informs

an employee or applicant of his

right to file a civil action and

of the 30-day time limit for

filing.

It should be noted that appellant

was not represented by counsel

during the course of this first

administrative appeal.

36

5/ In its letter to appellant the BAR

stated:

: "It is our interpretation

that notification of the right

to file a civil action

under the provisions of the

Equal Employment Opportunity

Act of 1972 arises only when

the alleged act or acts of

discrimination occurred on

or after March 24, 1972, the

date the Act became effective.

Because your complaint was filed

on October 28, 1971 notice of

a right to file a civil action

was not included in the Board's

decision in your case."

(Exhibit 1 at 87)

6/ Letters to this effect were sent to

the BAR on July 25, 1973, October 19,

: 1973, and October 30, 1973.

7/ 5 C.F.R. 713.215 provides, in part:

"The head of an agency or his

designee may reject a complaint

which was not timely filed and

shall reject those allegations

in a complaint which are not

within the purview of §713.212

or which set forth identical

matters as contained in a

previous complaint filed by

the same complainant which is

pending in the agency or has

been decided by the agency.”

(emphasis added)

8/ 5 C.F.R. §713.234 was amended

slightly on September 9, 1974, and

37

changed the name of the Board of

Appeals and Review to the Appeals

Review Board. In other respects

the regulation is identical to the

1972 version.

38

EXHIBIT "B"

42 USC 82000e-16(c) provides:

"“(c) Within thirty days of receipt

of notice of final action taken by

a department, agency, or unit

referred to in subsection (a) of

this section, or by the Civil

Service Commission upon an appeal

from a decision or order of such

department, agency, or unit ona

complaint of discrimination based

on race, color, religion, sex or

national origin, brought pursuant

to subsection (a) of this section,

Executive Order 11478 or any

succeeding Executive orders, or

after one hundred and eighty days

from the filing of the initial

charge with the department, agency,

or unit or with the Civil Service

Commission on appeal from a decision

or order of such department, agency,

or unit until such time as final

action may be taken by a department,

agency, or unit, an employee or

applicant for employment, if aggrieved

by the final disposition of his

complaint, or by the failure to take

final action on his complaint, may

file a civil action as provided in

section 2000e-5 of this title, in

which civil action the head of the

department, agency, or unit, as

appropriate, shall be the defendant."

39

~ § C.F.R. 8713.215

"The head of the agency or his

designee may reject a complaint

which was not timely filed and

shall reject those allegations

in a complaint which are not within

the purview of 8713.212 or which set

forth identical matters as contained

in a previous complaint filed by the

same complainant which is pending in

the agency or has been decided by

the agency. He may cancel a complaint

because of failure of the complainant

to prosecute the complaint. He shall

transmit the decision to reject or

cancel by letter to the complainant

and his representative. The decision

letter shall inform the complainant

of his right to appeal the decision

of the agency to the Commission and

of the time limit within which the

appeal may be submitted and of his

right to file a civil action as des-

cribed in 8713.281."

5 C.F.R. 8713.234

"The Board of Appeals and Review shall

review the complaint file and all

relevant written representations made

to the board. The board may remand

a complaint to the agency for further

investigation or a rehearing if it

considers that action necessary or

have additional investigation con-

ducted by Commission personnel. This

subpart applies to any further investi-

gation or rehearing resulting from a

remand from the board. There is no

right to a hearing before the board.

40

The board shall issue a written

decision setting forth its reasons

for the decision and shall send

copies thereof to the complainant,

his designated representative, and

the agency. When corrective action

is ordered, the agency shall report

promptly to the board that the cor-

rective action has been taken. The

decision of the board is final, but

shall contain a notice of the right

to file a civil action in accordance

with 8713.282."

5 C.F.R. §8713.282

"An agency shall notify an employee

or applicant of his right to file

a Civil action, and of the 30-day

time limit for filing, in any finai

action on a complaint under 88713.215,

713.217, 713.220, or 8713.221. The

Commission shall notify an employee

or applicant of his right to file a

civil action, and of the 30-day time

limit for filing, in any decision

under 8§713.234."

‘¢

CERTIFICATE OF SERVICE

I hereby certify that on this 2nd day

of March, 1978, three copies each of the

Petition for Writ of Certiorari were air-

mailed, postage prepaid, to the following:

Solicitor General

Room 5614

Dept. of Justice

Washington, D.C. 20530

Secretary of the Army

General Counsel

Department of Army, 2nd Headquarters

Pentagon

Washington, D.C. 20301

/

/

% - WV G2. , A CHL CE

j* qe

SUSAN DAVIS WALLACE

X