# Appendix — Personnel Administrator of Mass. v. Feeney > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1509%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1979 - **Citation:** 442 U.S. 256 ## Text NOV 24 1978 [7 Supreme Court, U. y]' FILED “MICWAEL RADAK, JR., CLERK APPENDIX. | . In the Supreme Court of the United States. Ocroser TERM, 1978. No. 78-233. PERSONNEL ADMINISTRATOR OF THE COMMONWEALTH OF MASSACHUSETTS Er At., APPELLANTS, v. HELEN B. FEENEY, APPELLEE. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Appeal Docketed August 10, 1978. Jurisdiction Noted October 10, 1978. Table of Contents. Docket entries, Anthony v. Commonwealth et. al., No. 74-5061-T (“Anthony”) Docket entries, Feeney v. Commonwealth et al., No. 75-1991-T (“Feeney”) Complaint and application for three-judge court (An- thony) Amended complaint (Anthony) Complaint (Feeney) Plaintiffs’ motion to consolidate with Feeney (An- thony) Plaintiff’s application for temporary restraining order (Feeney) Temporary restraining order (Feeney) Defendants’ motion to dismiss (both) Order convening three-judge court (Feeney) Agreed statement of facts (Feeney) Exhibit 1 Exhibit 2 Exhibit 3 Exhibit 4 Exhibit 5 Exhibit 6 Exhibit 7 Exhibit 8 Exhibit 9 Exhibit 10 Exhibit 11 Exhibit 12 Exhibit 82 ii TABLE OF CONTENTS. Exhibit 83 Exhibit 84 Judgment and order (both) Opinion (both) Defendants’ notice of appeal (Feeney) Supreme Court order certifying questions to Supreme Judicial Court of Massachusetts (Feeney) Supreme Court order of remand to District Court (Feeney) Plaintiff’s motion for leave to amend and supplement complaint (Feeney) Defendants’ opposition to plaintiff's motion fo: leave to amend and supplement complaint (Feeney) Judgment and order (Feeney) Opinion (Feeney) Defendants’ notice of appeal (Feeney) 182 192 193 195 United States District Court for the District of Massachusetts. No. 74-5061-T CAROL A. ANTHONY COMMONWEALTH OF MASSACHUSETTS; DIVISION OF CIVIL SERVICE OF THE COMMONWEALTH OF MASSACHUSETTS; EDWARD W. POWERS; NANCY B. BEECHER; WAYNE A. BUDD; JOSEPH M. DUFFY; RICHARD J. HEALEY; anp HELEN C. MITCHELL. Docket Entries. 1974 November 4 Tauro, D.J. Complaint and application for three-judge court, filed; Affidavit of Plaintiff in support of TRO, filed; Memo in support of TRO and three-judge court, filed; 15 December 19 26 Arguments; motion for TRO, allowed and issued at 3 P.M. C.H.J., Corrin, ORDER ENTERED: Desig- nating D.J. Camppett, D.J. Murray and D.J. Tauro as members of three judge panel copy to all counsel. Deft., Albert E. Salt, Esq. Motion to intervene by aggrieved party, filed with affidavit of service. Dfts’ motion to dismiss, filed c/s. Dft’s motion to extend time to file memo in support of motion to dismiss, filed c/s. Plitff’s opposition to Salt’s motion to intervene, filed c/s. Pltf’s opposition to defts’ motion to dismiss, filed, c/s Plitf’s motion to extend time for filing of memo- randum in opposition to deft’s motion to dismiss, filed, c/s. Motion by Aggrieved Party to Call Judicial At- tention to the Fact that the Re- straining Order Issued by the Court, as Pres- ently Enforced, is in Violation of the Four- teenth Amendment. Filed. c/s. Notice of conference for Feb. 11, 1975 at 10 A.M. to Messrs. Dignan, Reinstein, Mayo, Salt and Daly. 1975 February ll 11 13 18 March Tauro, D.]J. Conference; agreed statement of facts and memoranda of law to be filed by April 1, 1975, reply briefs to be filed by April 8, 1975; Hearing on motion to dismiss and on the merits to be scheduled after reply briefs are filed; copy of House Bill #1777 submitted to the Court; hearing on motion to intervene; arguments; advisement. Tauro, D.J. Motion to intervene denied. Mr. Salt, however, may file brief amicus curea; notice to all counsel. Notice of hearing on the merits for April 14, 1975 at 10 a.m. to all counsel. Motion to intervene as defts., by the Disabled Veterans of The United States, Department of Massachusetts and the Jewish War Veter- ans of the United States, Department of Mas- sachusetts, filed. Copies to 3 Judge Panel. Intervenors’ motion to dismiss, filed, c/s. Copies to members of the Three Judge Panel. Pltff’s opposition to the motion to intervene of disabled veterans of the United States Dept. of Mass. and the Jewish War Veterans of the United States, Dept., of Mass. filed, c/s. Copies to Three Judge Panel. 31 19 21 22 Tauro, D.J. Motion to continue briefing and argument, filed, copies to Three Judge Panel; motion al- lowed, hearing continued; copy to members of panel. The D.A.V. and the J.W.V., departments of Mass. oppose and protest the motions to con- tinue briefing and argument, filed, c/s. Copies to members of the panel. Motion for hearing on Intervenors pleadings, filed, c/s. Copies to Three Judge Panel. Letter dated May 2, 1975 to Judge Tauro from Mr. Ward, representing plaintiff, requesting conference; conference scheduled for 5-22-75 at 3P.M., Mr. Ward to notify other counsel, including Mr. Salt, intervenor. Pitff’s motion to add Betty A. Gittes and Kathryn Noonan as Pltffs. filed, c/s (Copies to Three-judge panel.) Pltfs’ motion to consolidate for trial this action with Feeney v. Commonwealth of Mass., ET AL, CA 75-1991-T, filed with cs. Copies to 3-Judge panel. Tauro, D.J. Case called for conference; to con- solidate 75-1991-T with 74-5061-T, allowed; All discovery to be completed within four wéeks, agreed statement of facts to be filed two weeks after completion of all discovery and briefs and memoranda to be filed four weeks after agreed statement of facts are 1975 June 17 17 17 21 are filed; pre-trial order to issue for hearing in September. Motion to intervene, denied but intervenor allowed to file his brief. Mo- tion to amend complaint by adding party plaintiffs, allowed. Tauro, D.J. May 23, 1975 Procedural order issued. Copies to counsel. Tauro, D.]J. Pre-Trial order issued for hearing on Sept. 5, 1975 at 11 A.M. to all counsel. Deft’s motion to dismiss, (Copies to Three Judge Panel) filed, c/s. Pitff’s opposition to deft’s motion to dismiss, filed, c/s. copies to Three Judge Panel. Motion of the parties to have to July 17, 1975 to file agreed statement to facts, filed. Tauro, D.J., Motion of parties for modifica- tion of Order establishing date (July 17, 1975) for filing agreed statement of facts, “ALLOWED.” Copies to Three Judge Panel. Agreed Statement of Facts, filed. Copies to Three-Judge Panel Exhibits 1-50; 51-86; 61; 93; 113-168, filed. Exhibits 90-112 and 91 filed. Motion of parties for modification of Order for the filing of Briefs and for permission to file reply Briefs, filed. Copies to Three Judge Panel. 1975 July 23 August 4 13 14 15 15 Tauro, D.J., Motion of parties for modifica- tion of order for the filing of briefs and for permission to file reply briefs, “ALLOWED.” Copies to counsel. Motion of Parties for modification of order for the filing of Briefs and for the filing of reply Briefs, filed. Tauro, D.J., in re motion of parties for mod- ification of order for the filing of briefs and for the filing of reply briefs; motion is AL- LOWED. Copies to Messers Ward, Rein- stein, Posner and Salt. Motion of parties for modification of order for the filing of Briefs and the filing of reply briefs, filed. Brief for the defendant FILED cs. Tauro, D.J., Motion of parties for modifica- tion of order for the filing of briefs and for the filing of reply briefs, “Allowed.” Copies to counsel. Brief of the plaintiffs, filed Copies to the Three Judge Panel. Tauro, D.J., Pitffs’ motion to extend time to file briefs to Aug. 20, 1975, filed and allowd; counsel notified. Letter to Judge Tauro, dated Aug. 14, 1975, from Stephen B. Perlman, Esq. re submit- ting corrections in the agreed statements of facts, filed. copies to be filed Monday 18, 1975 for a 3 Judge Panel Reply Brief for the defts., filed, c/s. Copies to 3 Judge Panel. 1975 August 18 September 5 Letter to Judge Tauro, dated Aug. 15, 1975, from A.A.G. Posner and Stephen B. Perlman, Esq. Re After discussion, counsel are in agree- ment that items one through six have been addressed in the briefs and agreed statements of fact already submitted by the parties, Fur- ther, counsel agree that the remaining items (seven through eleven) are not applicable be- cause the above-entitled cases do not involve witnesses or presentation of other evidence. Counsel therefore request that the Court consider the documents already filed by the parties as meeting the requirements of a pre- trial memorandum, filed. Reply brief of the Plaintiffs, filed; copy to members of the Three-Judge panel. Letter to Clerk Doherty, dated Aug. 25, 1975, from Eleanor D. Acheson, Re Requesting a notification from your office should Judge Tauro deny the request and desire a pre-trial memorandum for the September 5, 1975 per- trial conference, filed. Four copies of errata respecting the Brief of the pltffs and the reply Brief of the pltffs., filed. Copies to Three-Judge Panel. Letter to Judge Tauro, dated Sep. 5, 1975, from Stephen B. Perlman Re Four addi- tional copies each of the Brief of the Pitffs and the Reply Brief of the pltffs. The copies are identical in all respects to those filed on Aug. 13, 1975, and Aug. 20, 1975, respec- tively, except that (1) the copies have been 8 1975 September 5 corrected to reflect the errata furnished to the Court by letter dated Sep. 4, 1975, and (2) the enclosed copies of the Brief of the pltffs., have been photocopied on both sides of each page, filed. Copies to Three-Judge Panel. 5 Pitff’s Reply Brief, filed, c/s. Corrected 5 Pitff’s Brief corrected, filed, c/s. 5 Tauro, D.J., Pre-Trial Conference; Date to be Set for Hearing on Merits in October by Three-Judge Panel. ) Notice of trial on merits for Oct. 22, 1975 at 2:15 P.M. to members of three judge panel and all counsel. October 15 Tauro, D.J., ORDER: CA 74-5061-T and CA 75-1991-T Take notice that the above- entitled hearing on October 22, 1975 at 2:15 PM before CAMPBELL C.J., MURRAY, D.J. h rescheduled for hearing on ednesday, November 19;~1975 at 2:15 PM in Courtroom No. 2 12th Floor, U.S. Post fice & Courthouse, Boston, Mass., RED. Copies to counsel and Three Judge Panel. November 13 Notice sent, via certified mail, to Gov. Dukakis and Atty. General Bellotti in re Three-Judge Panel hearing on Wed., November 19, 1975 at 2:15 PM, pursuant to the provisions of 18 U.S.C. § 2284 (2). 1975 November 19 Tauro, D.J. Case called for hearing on merits; Atty. Ward to argue for all the pltffs; Atty. Posner to argue for all the defts; Argument; Court adjourns for deliberation at 3:13 PM. 1976 March 29 CAMPBELL, C.J., Murray, D.J., Tauro, D.]. Opinions (3) issued. CAMPBELL, C.J., Tauro, D.J. Judgment and order entered. cc/cl and West, Lawyer’s Weekly, NCAIR, U.S. Law Week and Opin- ion Book. 10 United States District Court for the District of Massachusetts. No. 75-1991-T. HELEN B. FEENEY v. COMMONWEALTH OF MASSACHUSETTS; DIVISION OF CIVIL SERVICE OF THE COMMONWEALTH OF MASSACHUSETTS; EDWARD W. POWERS; NANCY B. BEECHER; WAYNE A. BUDD; JOSEPH M. DUFFY; RICHARD J. HEALEY; anp HELEN C. MITCHELL. 1975 May 20 22 Docket Entries. Complaint filed. Tauro, D.J. Case called for conference; mo- tion filed in 75-5061-T to consolidate with this action allowed; all discovery to be com- pleted within four weeks, agreed statement of facts to be filed two weeks thereafter and briefs and memoranda to be filed four weeks after that; pre-trial order to issue for hearing in September. Tauro, D.J. May 23, 1975 Procedujal order is- sued. Copies to counsel. Tauro, D.J. Temporary Restraining Order is- sued. Copies to counsel. June 16 27 27 27 ll Tauro, D.J. Pre-trial order issued for hearing on Sept. 5, 1975 at 11 A.M.; copy to all coun- sel. Defts’ motion to dismiss, filed, c/s. FraNnK M. CorFin, Cu.J. U.S. Court or Ap- PEALS ORDER ENTERED: May 6, 1975 Desig- nating C.J. CAMPBELL, D.J. Frank J. Mur- RAY, AND D.J. Tauro as members of three judge panel. Copy to all counsel. Tauro, D.J. Motion of parties for modifica- tion of order establishing date for filing agreed statement of facts, “Allowed.” Cop- ies to Three Judge Panel. Plaintiffs’ opposition to defendants’ motion to dismiss, filed, c/s. Copies to Three Judge Panel. Motion to intervene as a deft., or for leave to file a Brief as Amicus Curiae, filed, c/s. Cop- ies to Three Judge Panel. Affidavit of John P. Swift in support of motion to intervene as a deft., or for leave to file a Brief as Amicus Curiae Brought by the American Legion, Department of Massachu- setts, Inc., filed, c/s. Three Judge Panel cop- ies sent to them. Affidavit of Joseph F. Irvin, filed, c.s. Copies to Three-Judge Panel. 1975 June 27 July June 27 July 17 17 17 12 Brief in support of motion to intervene as a deft., or for leave to file a brief as Amicus Curiae made by the American Legion, De- partment of Massachusetts, Inc., filed, c/s. Copies to Three Judge Panel. Motion of the parties to have to July 17, 1975 to file agreed statement of facts, filed. Tauro, D.J. Motion of parties for modifica- tiofi of Order establishing date (July 17, 1975) for filing agreed statement of facts, “ALLOWED.” Copies to Three Judge Pan- el. Plaintiff's Opposition to the Motion to Inter- vene of the American Legion, Dept. of Mass., Inc., filed c/s. Copies to Three Judge Panel Memorandum in opposition to the Mo- tion of the American Legion to Intervene as a Deft filed, copies to Three Judge Panel. Tauro, D.J. Motion to Intervene as a Deft. or for leave to file a Brief as Amicus Curiae “Motion to file Amicus brief ALLOWED, Motion otherwise DENIED. Copies to Messrs. Ward, Reinstein, Posner and Curtin. Agreed Statement of Facts, filed. Copies to Three-Judge Panel. Exhibits 1-50, filed. Exhibits 51 through 84, filed. 1975 August 13 Exhibits 61, filed. Exhibits 90 through 112, filed. Exhibits 91 filed. Exhibits 93 filed. Exhibits 113 through 168, filed. Motion of parties for modification of Order for the filing of Briefs and for permission to file reply briefs, filed. Copies to Three Judge Panel. Tauro, D.J. Motion of parties for modifica- tion of order for the filing of briefs and for permission to file reply briefs, ‘“AL- LOWED.” Copies to counsel. Motion of Parties for modification of Order for the filing of Briefs and for the filing of reply Briefs, filed. Tauro, D.J. In re motion of the parties for modification of the order for the filing of briefs and for the filing of reply briefs, mo- tion is ALLOWED. Copies to Messrs. Ward, Reinstein, Posner and Curtin. Motion of Parties for modification of order for the filing of Briefs and for the filing of reply Briefs, filed. Brief for the defendant FILED cs. Tauro, D.J. Motion of parties for modifica- tion of order for the filing of briefs and for the filing of reply briefs, “ALLOWED.” Copies to Three Judge Panel. 1975 August September 5 14 Amicus Curiae brief of the American Legion Department of Mass. Inc., in support of the constitutionality of the Massachusetts Veter- ans’ Preference Statute FILED with cs. Brief of the plaintiffs, filed. Copies to tke Three Judge Panel. Tauro, D.J. Pitffs’ motion extending time to Aug. 20, 1975 to file reply briefs, filed and allowed; counsel notified. Reply brief for the defts, filed, c/s. Reply brief of the plaintiffs, filed; copy to members of the Three-Judge Panel. Four copies of errata respecting the brief of the pltffs., and the reply brief of the pltffs., filed; copy to members of the Three-Judge Panel. Letter to Judge Tauro, dated Sep. 5, 1975, from Stephen B. Perlman Re Four additional copies each of the brief of the pltffs., and the Reply Brief of the pltffs. The copies are identical in all respects to those filed on Aug. 13, 1975, and Aug. 20, 1975, respect- fully, except that (1) the copies have been corrected to reflect the errata furnished to the Court by letter dated Sep. 4, 1975, and (2) the copies of the Brief of the pltffs., have been photocopied on both sides of each page, filed, Copies to Three-Judge Panel. Pitffs’ Reply Brief, filed, c/s. (corrected) 15 5 Pitffs’ Brief corrected, filed, c/s. 5 Tauro, D.J. Pre-Trial Conference; Date to be Set for Hearing on Merits in October by Three-Judge Panel. 9 Notice of hearing on the merits for Oct. 22, 1975 at 2:15 P.M. to members of three judge court panel and all counsel. October 15 Tauro, D.J. (CA 74-5061-T anv CA 75-1991-T) Orper ENTERED: Take no- tice that the above-entitled hearing on Octo- ber 22, 1975 at 2:15 PM before CampseELt, C.J., Murray, D.J. anp Tauro, D.J. have been rescheduled for hearing on Wednesday, November 19, 1975 at 2:15 PM in Court- room No. 2, 12th Floor, U.S. Post Office & Courthouse, Boston Mass. Copy to counsel and members of Panel. 19 Tauro, D.J. Case called for hearing on merits; Atty. Ward to argue for all the pltffs; Asty Posner to argue for all the defts; Argument; Court adjourns for deliberation at 3:13 PM. 1976 March 29 CAMPBELL, C.J., Murray, D.J., Tauro, D.J. Opinions (3) filed. CAMPBELL, C.J., Tauro, D.J. Judgment and order entered. cc/cl and West, Lawyer's Weekly, NCAIR, U.S. Law Week and Opin- ion Book. June 10 14 16 16 Copy of letter to Representative Hogan from Mr. Irvin filed with attachments. Copy of letter to Editor, Herald American from Mr. Irvin filed. Defts’ notice of appeal filed, c/s. Motion for relief from judgment filed, c/s. Motion for stay of judgment and order pursu- ant to Supreme Court Rule 18 filed, c/s. Memorandum of points and authorities in sup- port of motion for relief from judgment and stay of judgment and order pursuant to Su- preme Court Rule 18 filed, c/s. Motion to file a late affidavit filed, c/s. Cop- ies of above to 3 Judge Court. Letter to the Clerk from Mr. Bellotti filed. Motion for continuance . . . filed, assented to. Copies to 3-Judge Court. Tauro, D.J. Above motion allowed. Affidavit of WaALLAcE H. KounrTze, filed and copies to members of three-judge panel. Counsel notified of hearing on 6-23-76 at 2:15 PM. Pitffs’ opposition to Dfts’ motion for stay of judgment; opposition to Dfts’ motion for re- lief from judgment and motion for leave to extend time for pltff to file a consolidated memo and additional affidavits, filed c/s, copy to members of three-judge panel. Supplemental motion for relief from judgment filed, c/s. Copies to three-judge panel. 1976 16 21 8 & August 17 Tauro, D.J. Order entered: “All memoranda and related materials dealing with the mat- ters to be taken up at the hearing scheduled for Wednesday, June 23, 1976 must be filed by the close of business, Monday, June 21, 1976.” Copy to counsel and members of the three-judge panel. Deft’s memo in support of supplemental mo- tion for relief from judgment filed, c/s. Stipulation filed. Memo in opposition to defts’ motions for relief from jddgment under Rule 60(b) and motion for stay of judgment and order pursuant to Supreme Court Rule 18 filed, c/s. Affidavit of Francis X. Bellotti filed, c/s. CAMPBELL, C.J., Murray, D.J. AND Tauro, D.J. Hearing on various motions; argu- ments; motion for reconsideration and to modify injunction, denied; motion for stay pending appeal, granted; order to enter. Letter to the Clerk from Mr. Reinstein with at- tached copies of legislation filed, cc/Three Judge Court. Tauro, D.J. Order entered, denying motion for relief from judgment, denying motion for relief (supplemental) from judgment, and taking no action on motion for stay. cc/cl. Judgment and Order, Notice of Appeal for- warded to the Supreme Court of the United States. 1976 November 10 1977 October 19 November 7 10 18 Letter from Helen Taylor of the Supreme Court w/ attached opinion, filed. 01 CampsBe.LL, C.J., Tauro, D.J., Murray, §.D.J. Order for filing briefs and for Oral argument on 11/29/77 at 2:15 PM entered. cc/Three Judge Court and counsel. 02 P’s motion, assented to, for modification of order establishing briefing schedule and to continue hearing, filed; copies to members of Three-Judge Court Panel. Tauro, D.J. Motion, No. 2, allowed; hearing continued to Wed. Dec. 14, 1977 at 2:15 PM, copy to counsel and members of three-judge court panel. 03 Certified copy of judgment from Supreme Court filed. 04 Defts’ brief filed, c/s. Copies to three judge Court. 05 Pltfs supplementary memo filed, c/s. 06 Pltfs motion for leave to amend and supple- ment complaint filed, c/s. 07 Memo in support of 06 filed, c/s. Copies of 05, 06 and 07 to three judge Court. 08 Amicus brief of American Legion filed, c/s. Copies to three judge Court. 09 Ds’ opposition to P’s motion for leave to amend and supplement complaint, filed c/s. 10 Memo in support of No. 09, filed c/s. 13 19 Copies of Nos. 09 and 10 to members of the panel. 11 Reply brief of defts’ filed, c/s. Copies to 3 judge Court. 12 Pitf's reply memo filed, c/s. Copies to 3 judge Court. 13 CampBe.LL, C.J., Tauro, D.J., Murray, S.D.J. Order entered setting argument on pitf’s motion to amend for 12/14/77 at 2:15 PM, and for filing memoranda by. 12/13/77 at 4:00 PM cc/cl and three judge Court. Telephone notice to Messrs. Ward, Kiley and Adkins. 14 Pitfs motion for clarification filed, c/s. Copies to 3 judge Court. 15 CAMPBELL, Murray AND TAuRO, ORDER ENTERED: “In response to plaintiff Feeney’s ‘Motion for clarification’ the parties are ad- vised to brief any substantive issues to be considered by the court together with the procedural issues in determining whether the motion is to be allowed.”; copy to counsel and three judge court panel. 16 Supplemental memo in support of plain- tiffs motion for leave to amend and supple- ment the complaint. c/s. 17 Memo. of defts. in opposition to pltf.’s mo- tion for leave to amend and supplement the complaint. 1977 December 14 CampPBELL, C.J., Tauro, D.J., Murray, S.D.]J. (M), Curry, Repoater, THREE Jupce Court HEARING; ARGUMENTS; ON 1) MOTION BY PLTF TO AMEND PLEADINGS; 2) REMAND By U.S. Svu- PREME COURT IN LIGHT OF CASE OF WASHING- TON V. Davis, ADVISEMENT. 18 CampBELL, C.J., Tauro, D.J., Murray, §.D.J. Opinions filed (Main opinion by Tauro, D.J., Concurring opinion by Camp- bell, C.J., dissenting opinion by Murray, S.D.J.) cc/cl and West, Lawyer’s Weekly, U.S. Law Week, Commerce Clearing House, NCAIR and Opinion Book & 3 judge _ court. 19 CampBELL, C.J., Tauro, D.J. Judgment and Order entered: 1. Judgment for Comm. of Mass. and Division of Civil Serv- ice . . . because these defts’ are not ‘per- sons’... 2. Judgment for pltf against the Mass. Director of Civil Service and the memoes of the Mass. Civil Service Commis- sion... IT IS ORDERED that: (a) The Mass. Director of Civil Service and the members of the Mass. Civil Service Commission are here- by permanently enjoined from utilizing Mass Gen Laws ch. 31, § 23 (1971) in any future selection of persons to fill civil service posi- tions with the Commonwealth and (b) This October 16 21 injunction shall have no effect upon the con- tinued status of any individual in a perma- nent civil service position who holds that po- sition on the date of this injunction, same distribution as 18. 20 Notice of appeal to the Supreme Court of the United States, FILED by defts. cs. Certified copy of docket entries and pleadings listed on index in file forwarded to the U.S. Supreme Court, Wash., D.C. Rec'd. cert. copy of order of Supreme Court noting probable jurisdiction in this case, filed. . _ 22 United States District Court for the District of Massachusetts. No. 74-5061-T. [Title omitted in printing. ] Complaint and Application for a Three-Judge Court. The plaintiff alleges as follows: Count I Jurisdiction and Venue 1. Plaintiff is a female resident and member of the bar of the Commonwealth of Massachusetts (Commonwealth). 2. The defendant Division of Civil Service (Division) is an executive and administrative department of the Common- wealth created under the provisions of Mass. G.L. c. 13, § 2, and by that same statute placed under the supervision and control of the Director of Civil Service (Director) and the Civil Service Commission (Commission). Said Division is charged with administering and enforcing the provisions of the Massachusetts Civil Service Law, Mass. G.L. c. 31. 3. The defendant Edward W. Powers is a resident of the Commonwealth and the Director and as such is an officer of the Commonwealth and administrative and executive head of the Division. This action is brought against him in his official capacity as Director. 4. The defendants Nancy B. Beecher, Wayne 7. Budd, Joseph M. Duffy, Richard J. Healy and Helen C. Mitchell and 23 each of them is a resident of the Commonwealth and a member of the Commission, and together they comprise the Commission. This action is brought against these defendants and each of them in their official capacities as members of the Commission. 5. This civil action arises under the Constitution of the United States and under 42 U.S.C. § 1983. The amount in controversy, exclusive of interest and costs, exceeds the sum or value of $10,000. 6. This is an action for declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202 commenced to redress the deprivation, under color of the Massachusetts Civil Service Law, Mass. G.L. c. 31, and the rules and regulations promul- gated thereunder, of rights of the plaintiff secured to her by the Fourteenth Amendment to the Constitution of the United States. 7. There exists an actual controversy between the plaintiff and the defendants as to the constitutionality of certifying names of persons for employment pursuant to an eligible list for permanent appointment to positions classified Counsel I. A copy of the present list, which is to be amended, is attached hereto and marked “A” and is hereinafter referred to as “the Counsel I Eligible List”. 8. Jurisdiction over the claim alleged is thus conferred upon this court by the provisions of 28 U.S.C. §§ 133l(a) and 1343(3). 9. This court is the proper venue for adjudication of the claim alleged by virtue of the provisions of 28 U.S.C. § 1391(b). Statement of Claim 10. The Division, the Director and the Commission and each of them are charged by the law of the Commonwealth 24 with the administration and enforcement of the Civil Service Laws of the Commonwealth (G.L. c. 31) which set forth the requirements and procedures to be followed in filling vacan- cies in the vast majority of the jobs available in the employ of the Commonwealth, its departments, divisions and agencies. As part of these general duties, these defendants and each of them are charged with enforcement of the so-called Veterans’ Preference Statute (G.L. c. 31, §§ 21-25) which is a part of the Civil Service Laws of the Commonwealth. 11. Applicants for employment in permanent positions governed by the Civil Service Laws of the Commonwealth are required to undergo some form of competitive examination for such positions. After the competitive examination has been graded, all persons receiving a passing grade are placed upon an eligible list for the position or positions concerned. 12. Appointing authorities of the Commonwealth are re- quired by law to comply with the following procedure in fill- ing vacancies for permanent jobs governed by the Civil Service ‘: Laws of the Commonwealth: (a) The appointing authority sends a requisition to the Director stating the number of vacancies which are required to be filled. (b) The Director then certifies, in order of their rank on the eligible list, can- didates for the position. The entire list is not certified, rather the number certified is dependent upon the number of posi- tions to be filled. (c) The appointing authority must select a person on the list certified to him. If there is one position to be filled, the appointing authority must select one name from the first three names on the eligible list. If there is more than one position to be filled, the appointing authority selects from a greater number of names in accordance with a formula set forth in Rule 14 of the Civil Service Rules, a copy of which rule is attached hereto and marked “B”. Said greater number of names certified to the appointing authority are certified from 25 the eligible list in the order in which names are ranked on the list. 13. The effect of the Veterans’ Preference Statute is to re- quire that all disabled veterans and other veterans who have passed the examination be placed on the eligible list ahead of all other persons who also have passed the examination, which means that every veteran who passes will be certified to the appointing authority ahead of every non-veteran who passes. 14. The defendants have compiled a Counsel I Eligible List for permanent appointment to positions classified Counsel I which is attached hereto and marked “A”. This Counsel I Eligible List is an open list which will be continually updated with the names of applicants who become eligible. 15. In 1974 the plaintiff, who is not a veteran, made an ap- plication for the competitive examination for permanent ap- pointments to positions classified Counsel I. The Director found the plaintiff qualified for permanent appointment to positions classified Counsel I and placed her name on the eligi- ble list for Counsel I positions. 16. The Director established the Counsel I Eligible List pursuant to the Veterans’ Preference Statute by placing the names of the persons who passed the competitive examination for permanent appointment to positions classified Counsel I on the Counsel I Eligible List in the order of (1) disabled veterans, (2) other veterans, and (3) other applicants. Within each group, eligibles are listed in order of their scores on the examination with the highest names listed first. 17. Names will be certified to appointing authorities from the Counsel I Eligible List in the order in which the names ap- pear on said list for permanent appointment to at least four- teen positions classified Counsel I. 18. Plaintiff ranks 57 on the Counsel I Eligible List. Plain- tiff tied for the highest score of any person on the Counsel I Eligible List. Solely because of the operation of the Veterans’ 26 Preference Statute 56 veterans rank ahead of plaintiff. No female ranks higher than 57 on the Counsel I Eligible List. 19. Although approximately 10 percent of those eligible for permanent appointment to positions classified Counsel I are female, no female including plaintiff will be certified to any appointing authority for such permanent appointment be- cause of the operation of the Veterans’ Preference Statute. 20. Virtually all persons presently holding permanent ap- pointments to counsel positions in the classified civil service of the Commcnwealth of Massachusetts are male. Almost all veterans in the Commonwealth are male. For the five-year period 1969 through 1973, approximately 55% of all males passing civil service examinations were veterans, while ap- proximately 1% of all females passing civil service examina- tions were veterans. Of all veterans passing civil service ex- aminations during the period 1969 through 1973, approxi- mately 98% were males. 21. Defendants’ enforcement of the Veterans’ Preference Statute has operated and continues to operate to exclude vir- tually all qualified female applicants from certification for consideration for any permanent appointment to any Counsel I position in the classified civil service of the Commonwealth. Said enforcement has operated and continues to operate to ex- clude a significantly higher proportion of qualified female ap- plicants from consideration for permanent appointments than it does qualified male applicants. 22. Plaintiff's grade on the unassembled competitive ex- amination for permanent appointment to positions classified Counsel I is such that she would be in the first group certified to appointing authorities for consideration for permanent ap- pointment to such positions but for the Veterans’ Preference Statute and the rules and regulations of the Division imple- menting said Statute and their enforcement by the individual defendants in their official capacities. The salaries for posi- 27 tions classified Counsel I range from $12,287.60 to $15,579.20 per year. 23. The plaintiff has been informed by the Division that the Division will begin certifying names from the Counsel I Eligi- ble List on or about November 5, 1974: 24. The Veterans’ Preference Statute and the rules and regulations of the Division in implementing said Statute and their enforcement by the individual defendants in their official capacities deprive plaintiff of the equal protection of the law in violation of the Fourteenth Amendment to the United States Constitution in that they unlawfully discriminate in public employment on the basis of sex by systematically excluding vir- tually every qualified and eligible female applicant including plaintiff, from certification for consideration for permanent appointment to any Counsel I position in the classified civil service of the Commonwealth. 25. The pending certification described in Paragraph 23 hereof and all further certifications will cause irreparable harm to Plaintiff for which she has no plain and adequate remedy of law. Count II 26. Plaintiff reasserts the averments of Paragraphs 1 through 23 and 25, inclusive, of this Complaint with the same force and effect as if herein set forth and repeated in full. 27. For many years the Commonwealth has excluded females from, or discriminated against females in filling, various positions in public employment including counsel posi- tions. As a result, females continue to be underrepresented in those positions in the classified civil service of the Common- wealth which are most desirable in terms of salary, responsi- 28 bility and opportunity for advancement, including positions classified Counsel I. 28. Because of the Commonwealth’s history of exclusion and discrimination against females in public employment, the defendants are under an affirmative constitutional duty to the plaintiff to eliminate every law, rule and regulation that has the effect of operating in practice to perpetuate the exclusion of, or discrimination against, qualified female applicants with respect to public employment, including the provisions for veterans’ preference in the Massachusetts General Laws and in the rules and regulations of the defendant Division of Civil Service. Count III 29. Plaintiff reasserts the averments of Paragraphs 1 through 23 and 25, inclusive, of this Complaint with the same force and effect as if herein set forth and repeated in full. 30. The United States of America has adopted various laws, regulations and practices expressly excluding females from the armed forces and expressly limiting opportunities for females in the armed forces with the effect that females have been and continue to be discouraged by federal law from joining or at- tempting to join the armed forces of the United States. Such laws and regulations include laws and regulations limiting the percentage of positions in the armed forces open to females, laws and regulations establishing stricter qualifications for females than for males seeking to join the armed forces, laws and regulations discriminating against females as to benefits, positions and promotions available to members of the armed forces, and laws and regulations excluding females irom the service academies. Said laws and regulations have created an 29 environment which has discouraged and discourages females generally from joining the armed forces of the United States. 31. The Veterans’ Preference Statute and the rules and regulations of the defendant Division implementing said Statute, and their enforcement by the individual defendants in their official capacities, deprive plaintiff of the equal protec- tion of the law in violation of the Fourteenth Amendment to the United States Constitution in that they unlawfully discriminate in public employment on the basis of sex by the adoption of a qualification for public employment based on incorporating and perpetuating the sex discrimination express- ly established by law and regulation in the armed forces of the United States. Wuererore, plaintiff prays: A. That a three-judgé Court be convened pursuant to 28 U.S.C. §§ 2281 and 2284 to hear and determine this action upon at least five days notice of hearing to the Governor and Attorney General of the Commonwealth. B. That the Court enter judgment declaring that the veterans’ preference provisions of the Massachusetts General Laws and of the rules and regulations of the defendant Divi- sion implementing said provisions as applied to the eligible list for permanent appointments to positions classified Counsel I violate the Fourteenth Amendment to the United States Con- stitution and are invalid as so applied. C. That the Court enter a preliminary injunction enjoining the Commonwealth, its agencies and divisions, including but not limited to the Division of Civil Service, from enforcing the veterans’ preference provisions of Mass. G.L. c. 31, §§ 21-25, until this action can be heard and decided on the merits. D. That the Court permanently enjoin the Common- wealth, its agencies and divisions, including but not limited to the Division of Civil Service, from enforcing the veterans’ preference provisions of Mass. G.L. c. 31, §§ 21-25. 30 E. That the Court grant to plaintiff her costs and expenses of litigation. F. That the Court grant to plaintiff such other relief as to the Court may seem meet and just. By her attorneys, THOMAS G. DIGNAN, JR. JOHN SILAS HOPKINS, III RICHARD P. WARD STEPHEN B. PERLMAN Ropes & Gray 225 Franklin Street Boston, Massachusetts 02110 617-423-6100 JOHN REINSTEIN 3 Joy Street Boston, Massachusetts 02108 617-227-9469 {Attachment A, entitled “Counsel I Eligible List,” has been deleted from the Complaint and has been reproduced as Ex- hibit 9 to the Agreed Statement of Facts at page 152 of the Ap- pendix. ] 31 ATTACHMENT B. CERTIFICATION OF OTHER ELIGIBLES Rule 14. 1. Certification shall be made in the order of the standing on the eligible list, except as provided in Section 4 of this rule, as follows: — For 1 vacancy, 3 names For 4 vacancies, 6names 2 vacancies, 4 names 5 vacancies, 7 names 3 vacancies, 5 names For each multiple of five vacancies, the same multiple of seven names; for vacancies from one to four, inclusive, over a multiple of five, additional names according to the above table. 32 United States District Court for the District of Massachusetts. No. 74-5061-T [Title omitted in printing. ] Amended Complaint. The plaintiffs allege as follows: Count I Jurisdiction and Venue 1. Plaintiffs are each female residents and members of the Bar of the Commonwealth of Massachusetts (the “Common- wealth”). 2. The defendant Division of Civil Service (the “ Division”) is an executive and administrative department of the Com- monwealth created under the provisions of Mass. G.L. c. 13, § 2, and by that statute placed under the supervision and con- trol of the Director of Civil Service (the “Director”) and the Civil Service Commission (the “Commission”). The Division is charged with administering and enforcing the provisions of the Massachusetts Civil Service Law, Mass. G.L. c. 31. 3. The defendant Edward W. Powers, a resident of the Commonwealth, is the present Director and is an officer of the Commonwealth and administrative and executive head of the 33 Division. This action is brought against him individually and in his official capacity as Director. 4. The defendants Nancy B. Beecher, Wayne A. Budd, Joseph M. Duffy, Richard J. Healy and Helen C. Mitchell and each of them is a resident of the Commonwealth and a member of the Commission, and together they comprise the Commission. This action is brought against these defendants and each of them individually and in their official capacities as members of the Commission. 5. This civil action arises under the Constitution of the United States and under 42 U.S.C. § 1983. The amount in controversy, exclusive of interest and costs, exceeds the sum or value of $10,000. 6. This is an action for declaratory and injunctive relief pursuant to 28 U.S.C. §§.2201 and 2202 commenced to redress the deprivation, under color of the Massachusetts Civil Service Law, Mass. G.L. c. 31, and the rules and regulations promul- gated thereunder, of rights of the plaintiffs secured to them by the Fourteenth Amendment to the Constitution of the United States. 7. There exists an actual controversy between the plaintiffs and the defendants as to the constitutionality of the hiring practice, prescribed by G.L. c. 31, which gives to qualified candidates for permanent positions in the Classified Civil Service who are veterans a preference in rank over non-veteran qualified candidates on the eligible lists from which certifica- tions to permanent positions in the Classified Civil Service are made. 8. Jurisdiction over the claim alleged is thus conferred upon this court by the provisions of 28 U.S.C. § 1391(b). 9. This court is the proper venue for adjudication of the claim alleged by virtue of the provisions of 28 U.S.C. § 1391(b). 34 Statement of Claim 10. The Division, the Director and the Commission and each of them are charged by the law of the Commonwealth with the administration and enforcement of the Civil Service Laws of the Commonwealth (G.L. c. 31) which set forth the requirements and procedures to be followed in filling vacan- cies in the vast majority of the jobs available in the employ of the Commonwealth, its departments, divisions and agencies. As part of these general duties, these defendants and each of them are charged with enforcement of the so-called Veterans’ Preference Statute (G.L. c. 31 §§ 21-25). 11. Applicants for employment in permanent positions governed by the Civil Service Laws of the Commonwealth are required to undergo some form of competitive examination for such positions. After the competitive examination has been graded, all persons receiving a passing grade are placed upon an eligible list for the position or positions concerned. 12. Appointing authorities of the Commonwealth are re- quired by law to comply with the following procedure in fill- ing vacancies for permanent jobs governed by the Civil Service Laws of the Commonwealth: (a) The appointing authority sends a requisition to the Director stating the number of vacancies which are required to be filled. (b) The Director then certifies, in order of their rank on the eligible list, candi- dates for the position. The entire list is not certified, rather the number certified is dependent upon the number of posi- tions to be filled. (c) The appointing authority must select a person on the list certified to him. If there is one position to be filled, the appointing authority must select one name from the first three names on the eligible list. If there is more than one position to be filled, the appointing authority selects from a greater number of names in accordance with a formula set forth in Rule 14 of the Civil Service Rules, a copy of which rule 35 is attached hereto and marked “A”. Said greater number of names certified to the appointing authority are certified from the eligible list in the order in which names are ranked on the list. 13. The effect of the Veterans’ Preference Statute is to re- quire that all disabled veterans and other veterans who have passed the examination be placed on the eligible list ahead of all other persons who also have passed the examination, which means that every veteran who passes will be certified to the appointing authority ahead of every non-veteran who passes. 14. The defendants compiled an eligible list for permanent appointment to positions classified Counsel I, a copy of which is attached hereto and marked “B” and is hereinafter referred to as “the Counsel I Eligible List.” 15. In 1974 the plaintiffs, none of whom are veterans, made applications for the competitive examination for perma- nent appointments to positions classified Counsel I. The Di- rector found each of the plaintiffs qualified for permanent ap- pointment to positions classified Counsel I and placed the names of plaintiff Anthony and plaintiff Gittes on the eligible list for Counsel I positions. Plaintiff Noonan did not appear on the Counsel I Eligible List (Attachment “B”) but is in- formed, believes and alleges that because the list was an open list her name would have been added to the list before any names were certified from the list to any appointing authority. 16. The Director established the Counsel I Eligible List pursuant to the Veterans’ Preference Statute by placing the names of the persons who passed the competitive examination for permananet appointment to positions classified Counsel I on the Counsel I Eligible List in the order of (1) disabled veterans, (2) other veterans, and (3) other applicants. Within each group, eligibles were listed in order of their scores on the examination with the highest names listed first. 36 17. Names would have been certified to appointing au- thorities from the Counsel I Eligible List in the order in which the names appeared on said list for permanent appointment to at least fourteen positions classified Counsel I, were it not for the preliminary injunction previously entered in this action. 18. Plaintiff Anthony was ranked 57 on the Counsel I Eligi- ble List. Plaintiff Anthony tied for the highest score (94) of any person on the Counsel I Eligible List. As a result of the operation of the Veterans’ Preference Statute 56 male veterans were ranked ahead of plaintiff Anthony. No female was ranked higher than 57 on the Counsel I Eligible List. Plaintiff Gittes was ranked 76 on the Counsel I Eligible List. Plaintiff Gittes tied for the second highest score (92) of any person on the Counsel I Eligible List. Plaintiff Noonan also received a score of 92 but re-applied and was informed that her score would be adjusted to a 94, the highest score received by an ap- plicant for Counsel I. As a result of the operation of the Veterans’ Preference Statute 54 male veterans with equal or, in the case of 52 male veterans, lower scores were ranked ahead of plaintiff Gittes and plaintiff Noonan. 19. Although each of the plaintiffs received one of the two highest scores achieved on the Counsel I exam, not one of the plaintiffs was certified to any appointing authority for perma- nent appointment to Counsel I positions. Application of the Veterans’ Preference Statute ranked each of the plaintiffs below all lower scoring and all male veterans so that each of the plaintiffs was excluded from any possibility of being con- sidered for permanent Counsel I positions for which there were requisitions. 20. Although approximately 10% of those on the Counsel I Eligible List were female, the operation of the Veterans’ Preference Statute placed each female on the eligible list in such a low position that she was excluded from any possibility 37 of being considered for permanent positions for which there were requisitions. 21. All persons presently holding permanent appointments to counsel positions in the Classified Civil Service of the Com- monwealth of Massachusetts are male. Approximately 98 % of all veterans in the Commonwealth are male. For the five- year period 1969 through 1973, approximately 55% of all males passing civil service examinations were veterans, while approximately 1% of all females passing civil service examina- tions were veterans. Of all veterans passing civil service ex- aminations during the period 1969 through 1973, approx- imately 98% were males. 22. Defendants’ enforcement of the Veterans’ Preference Statute excluded vitually all qualified female applicants from consideration for any permanent appointment to any Counsel I position in the classified civil service of the Commonwealth. Said enforcement excluded a significantly higher proportion of qualified female applicants from consideration for permanent appointments than it did qualified male applicants. 23. Each of the plaintiffs’ grades on the unassembled com- petitive examination for permanent appointment to positions classified Counsel I was such that she would have been certi- fied to appointing authorities for consideration for permanent appointment to such positions but for the Veterans’ Preference Statute and the rules and regulations of the Division im- plementing said Statute and their enforcement by the in- dividual defendants. 24. The salaries for positions classified Counsel I range from $12,287.60 to $15,579.20 per year. 25. Were it not for the preliminary injunction entered in this action, the Division would have begun certifying names from the Counsel I Eligible List on or about November 5, 1974. 38 26. The Classified Civil Service of the Commonwealth in- cludes many thousands of permanent positions. The Veterans’ Preference Statute applies to each of these positions. Veterans’ preference systematically excludes female applicants from those positions for which both men and women compete by establishing eligible lists which give absolute preference to veterans, virtually all of whom are male. Male veterans com- pete for a large number of the more desirable and higher pay- ing permanent positions in the Classified Civil Service in numbers large enough to have the practical effect of excluding from consideration for appointment virtually all female appli- cants, including the plaintiffs. Each of the plaintiffs desires to be able to compete for any position in the Classified Civil Serv- ice without being eliminated frym consideration by operation of the Veterans’ Preference Act. The Veterans’ Preference Act grants a preference to a disproportionate number of male ap- plicants on the basis of a criterion that is related neither to ability nor to performance in permanent positions in the Classified Civil Service. 27. The actions of defendants in applying the Veterans’ Preference Statute to place the name of the plaintiff Anthony on the Counsel I eligible list behind less qualified male veterans have humiliated and degraded her and caused her consequent mental distress and emotional anxiety. Plaintiff Anthony has thereby been damaged as a result of the unconsti- tutional actions of defendants under color of state law. 28. Plaintiff Anthony presently holds a provisional appoint- ment in the Classified Civil Service of the Commonwealth and is interested in being able to compete equally with male candi- dates for permanent positions in the Classified Civil Service. Plaintiff Anthony will by operation of the Veterans’ Preference Act be eliminated from consideration for any permanent posi- tion for which she applies and for which men and women compete. Plaintiff Anthony, having been eliminated from 39 consideration from Counsel I positions by operation of the Veterans’ Preference Statute, is discouraged from applying for other permanent positions and thereby being subjected again to the humiliation and degradation and consequent mental distress and emotional anxiety caused by being excluded by reason of the operation of the Veterans’ Preference Act. Plain- tiff Anthony has suffered and continues to suffer mental dis- tress and emotional anxiety from the Commonwealth’s con- tinued use of the Veterans’ Preference Statute in the hiring process for all permanent positions in the Classified Civil Serv- ice. 29. The action of the defendants in applying the Veterans’ Preference Statute to place the name of the plaintiff Gittes on the Counsel I eligible list behind less qualified male veterans have humiliated and degraded her and caused her consequent mental distress and emotional anxiety. Plaintiff Gittes has, thereby been damaged as a result of the unconstitutional ac- tions of defendants under color of state law. 30. Plaintiff Gittes is interested in a career in state service and desires to be able to compete equally with male candidates for permanent positions in the Classified Civil Service. Plain- tiff Gittes intends to apply for other permanent positions in the Classified Civil Service but will, by the operation of the Veter- ans’ Preference Statute, be eliminated from consideration for any permanent position for which she applies and for which men and women compete. Plaintiff Gittes, having been elimi- nated from consideration from Counsel I positions by opera- tion of the Veterans’ Preference Act, is discouraged from ap- plying for other permanent positions and thereby being sub- jected again to the humiliation and degradation and conse- quent mental distress and emotional anxiety caused by being excluded from consideration by reason of the operation of the Veterans’ Preference Statute. Plaintiff Gittes has suffered and continues to suffer mental distress and emotional anxiety from 40 the Commonwealth’s continued use of the veterans’ preference in the hiring process for all permanent positions in the Com- monwealth. 31. The actions of defendants in applying the Veterans’ Preference Act to place the name of the plaintiff Noonan on the Counsel I eligible list behind less qualified male veterans have humiliated and degraded her and caused her consequent mental distress and emotional anxiety. Plaintiff Noonan has thereby been damaged as a result of the unconstitutional ac- tions of defendants under color of state law. 32. Plaintiff Noonan presently holds a provisional appoint- ment as a hearing examiner in the Classified Civil Service of the Commonwealth and, in addition to applying for Counsel I positions, will make application for a permanent position as a hearing examiner in the Classified Civil Service when the next examination for such a position is held. _ 33. Plaintiff Noonan is informed that no examination for permanent appointment to the position of hearing examiner has been held since 1967. It is likely that a notice of examina- tion will be posted in the near future. 34. On information and belief, the majority of permanent positions of hearing examiner are filled by males. 35. When the next examination for permanent appoint- ment to the position of hearing examiner is held, the defend- ants will apply the Veterans’ Preference Statute to place on the eligible list for positions of permanent hearing examiner the names of male veterans who are less qualified than female ap- plicants ahead of virtually all female applicants, including plaintiff Noonan. 36. Plaintiff Noonan will be excluded from consideration for a permanent appointment as a hearing examiner by reason of the operation of the Veterans’ Preference Statute in the same way she has already been excluded from consideration for a permanent appointment to a Counsel I position. Appli- 41 cation of the Veterans’ Preference Statute to the position of hearing examiner will deprive the plaintiff Noonan of the equal protection of the law and due process in violation of the Fourteenth Amendment to the United States Constitution. 37. Plaintiff Noonan has suffered and continues to suffer mental distress and emotional anxiety from the defendant’s continued application of the Veterans’ Preference Statute in the hiring process for all permanent positions in the civil serv- ice and in particular for both Counsel I positions and the posi- tion of permanent hearing examiner for which she intends to apply. 38. The Veterans’ Preference Statute and the rules and regulations of the Division in implementing said Statute and their enforcement by the individual defendants have deprived and continue to deprive the plaintiffs of the equal protectqon of the laws and of due process of law in violation of the Four- teenth Amendment to the United States Constitution in that they unlawfully discriminated in public employment on the basis of sex by systematically excluding qualified and eligible female applicants, including plaintiffs, from certification for consideration for permanent appointment to Counsel I posi- tions in the Classified Civil Service of the Commonwealth and in that they continue to discriminate unlawfully in public employment on the basis of sex by systematically excluding qualified and eligible female applicants, including plaintiffs, from certification for considerations for permanent appoint- ments to other positions in the Classified Civil Service of the Commonwealth. 39. The continued application of the Veterans’ Preference Act to positions in the Classified Civil Service for which plain- tiffs are interested in being able to compete equally with male | candidates is causing irreparable harm to plaintiffs for which they have no plain and adequate remedy at law. 42 Count II 40. Plaintiffs reassert the averments of Paragraphs 1 through 39, inclusive, of this Complaint with the same force and effect as if herein set forth and repeated in full. 41. For many years the Commonwealth has excluded fe- males from, or discriminated against females in filling, various positions in public employment including counsel positions and hearing examiner positions. As a result, females continue to be underrepresented in the positions in the Classified Civil Service of the Commonwealth which are most desirable in terms of salary, responsibility and opportunity for advance- ment, including positions classified Counsel I and hearing ex- aminer. 42. Because of the Commonwealth’s history of exclusion and discrimination against females in public employment, the defendants are under an affirmative constitutional duty to the plaintiffs to eliminate every law, rule and regulation that has the effect of operating in practice to perpetuate the exclusion of, or discrimination against, qualified female applicants with respect to public employment, including the provisions for veterans preference in the Massachusetts General Laws and in the rules and regulations of the defendant Division of Civil Service. Count III 43. Plaintiffs reassert the averments of Paragraphs 1 through 39, inclusive, of this Complaint with the same force and effect as if herein set forth and repeated in full. 44. The United States of America has adopted various laws, regulations and practices expressly excluding females from the armed forces and expressly limiting opportunities for females 43 in the armed forces with the effect that females have been and continue to be discouraged by federal law from joining or at- tempting to join the armed forces of the United States. Such laws and regulations include laws and regulations limiting the percentage of positions in the armed forces open to females, laws and regulations establishing stricter qualifications for females than for males seeking to join the armed forces, laws and regulations discriminating against females as to benefits, positions and promotions available to members of the armed forces, and laws and regulations excluding females from the service academies. Said laws and regulations have created an environment which has discouraged and discourages females generally from joining the armed forces of the United States. 45. The Veterans’ Preference Statute and the rules and reg- ulations of the defendant Division implementing said Statute, and their enforcement by the individual defendants deprive plaintiffs of the equal protection of the law and due process in violation of the Fourteenth Amendment to the United States Constitution in that they unlawfully discriminate in public employment on the basis of sex by the adoption of a qualifica- tion for public employment based on incorporating and per- petuating the sex discrimination expressly established by law and regulation in the armed forces of the United States. Wuererore, plaintiffs pray: A. That a three-judge Court be convened pursuant to 28 U.S.C. §§ 2281 and 2284 to hear and determine this action upon at least five days notice of hearing to the Governor and Attorney General of the Commonwealth. B. That the Court enter judgment declaring that the veter- ans’ preference provisions of the Massachusetts General Laws and of the rules and regulations of the defendant Division im- plementing said provisions as applied to eligible lists for per- manent appointments to positions in the Classified Civil Serv- 44 ice violate the Fourteenth Amendment to the United States Constitution and are invalid as so applied. C. That the Court enter a preliminary injunction enjoining the Commonwealth, its agencies and divisions, including but not limited to the Division of Civil Service, from enforcing the veterans’ preference provisions of Mass. G.L. c. 31, §§ 21-25, until this action can be heard and decided on the merits. D. That the Court permanently enjoin the Commonwealth, its agencies and divisions, including but not limited to the Di- vision of Civil Service, from enforcing the veterans’ preference provisions of Mass. G.L. c. 31, §§ 21-25. E. That judgment be entered against each individual de- fendant in favor of each plaintiff in the amount of one dollar ($1.00) nominal damages. F. That the Court order that the defendants undertake ap- propriate affirmative action in the hiring of female applicants for counsel positions so that the past effects of prior discrimi- nation are eliminated. G. That the Court grant to plaintiffs their costs and ex- penses of litigation. H. That the Court grant to plaintiffs such further and other related relief as to the Court may seem meet and just. By their attorneys, RICHARD P. WARD JOHN SILAS HOPKINS, III STEPHEN B. PERLMAN ELEANOR D. ACHESON Ropes &bGray 225 Franklin Street Boston, Massachusetts 02110 617-423-6100 JOHN REINSTEIN 100 Franklin Street Boston, Massachusetts 02110 617-426-3325 45 ATTACHMENT A. CERTIFICATION OF OTHER ELIGIBLES Rule 14. 1. Certification shall be made in the order of the standing on the eligible list, except as provided in Section 4 of this rule, as follows: — For 1 vacancy, 3mames_ For 4 vacancies, 6 names 2 vacancies, 4 names 5 vacancies, 7 names 3 vacancies, 5 names For each multiple of five vacancies, the same multiple of seven names; for vacancies from one to four, inclusive, over a multiple of five, additional names according to the above table. [Attachment B, entitled “Counsel I Eligible List,” has been deleted from the Amended Complaint and has been repro- duced as Exhibit 9 to the Agreed Statement of Facts at page 152 of the Appendix. ] 46 United States District Court for the District of Massachusetts. No. 75-1991-T [Title omitted in printing. ] Complaint. The plaintiff alleges as follows: Count I Jurisdiction and Venue 1. The plaintiff is a female resident of the Commonwealth of Massachusetts (the “Commonwealth”. 2. The defendant Division of Civil Service (the “Division”’) is an executive and administrative department of the Com- monwealth created under the provisions of Mass. G.L. c. 13, § 2, and by that statute placed under the supervision and con- trol of the Director of Civil Service (the “Director”) and the Civil Service Commission (the “Commission”). The Division is charged with administering and enforcing the provisions of the Massachusetts Civil Service Law, Mass. G.L. c. 31. 3. The defendant Edward W. Powers, a resident of the Commonwealth, is the present Director and is an officer of the Commonwealth and administrative and executive head of the Division. This action is brought against him in his official capacity as the Director. 47 4. The defendants Nancy B. Beecher, Wayne A. Budd, Joseph M. Duffy, Richard J. Healy and Helen C. Mitchell, residents of the Commonwealth, are members of the Commis- sion and together comprise the Commission. This action is brought against these defendants in their official capacities as members of the Commission. 5. This civil action arises under the Constitution of the United States and under 42 U.S.C. § 1983. The amount in controversy, exclusive of interest and costs, exceeds the sum or value of $10,000. 6. This is an action for declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202 commenced to redress the deprivation, under color of the Massachusetts Civil Service Law, Mass. G.L. c. 31, and the rules and regulations promul- gated thereunder, of rights of the plaintiff secured to her by the Fourteenth Amendment to the Constitution of the United States. 7. There exists an actual controversy between the plaintiff and the defendants as to the constitutionality of the hiring practice, prescribed by G.L. c. 31, which gives to qualified candidates for permanent positions in the Classified Civil Serv- ice who are veterans a preference in rank over non-veteran qualified candidates on the eligible lists from which certifica- tions to permanent positions in the Classified Civil Service are made. 8. Jurisdiction over the claim alleged is thus conferred upon this court by the provisions of 28 U.S.C. §§ 133l(a) and 1343(3). 9. This court is the proper venue for adjudication of the claim alleged by virtue of the provisions of 28 U.S.C. § 1391(b). Statement of Claim 10. The Division, the Director and the Commission and each of them are charged by the law of the Commonwealth 48 with the administration and enforcement of the civil service laws of the Commonwealth which set forth the requirements and procedures to be followed in filling vacancies in the vast majority of the jobs available in the employ of the Common- wealth, its departments, divisions and agencies. As part of these general duties, these defendants and each of them are charged with enforcement of the so-called Veterans’ Preference Statute (G.L. c. 31, §§ 21-25). 11. Applicants for employment in permanent positions governed by the civil service laws of the Commonwealth are required to undergo some form of competitive examination for such positions. After the competitive examination has been graded, all persons receiving a passing grade are placed upon an eligible list for the position or positions concerned. 12. Appointing authorities of the Commonwealth are re- quired by law to comply with the following procedure in fill- ing vacancies for permanent jobs governed by the civil service laws of the Commonwealth: The appointing authority sends a requisition to the Director stating the number of vacancies which are required to be filled. The Director then certifies candidates for the position in order of their rank on the eligible list. If there is one position to be filled, the appointing au- thority must select one of the first three available candidates on the eligible list. If there is more than one position to be filled, the appointing authority must select from the number of the highest ranking available candidates on the eligible list which is prescribed by Rule 14 of the Civil Service Rules, a copy of which rule is attached hereto and marked “A”. 13. The effect of the Veterans’ Preference Statute is to re- quire that all veterans who have passed the examination be placed on the eligible list ahead of all other persons who also have passed the examination. 14. The plaintiff, who is not a veteran, made application for the competitive examination for permanent appointment to one position classified Head Administrative Assistant at the Solomon Mental Health Center in the Department of Mental 49 Health of the Commonwealth. The plaintiff achieved the third highest score (92.32) on the competitive examination for Head Administrative Assistant held on February 24, 1973. The Director found the plaintiff qualified for permanent ap- pointment to that position and placed her name on the eligible list therefor, a copy of which is attached hereto and marked “B” and is hereinafter referred to as “the Head Administrative Assistant Eligible List”. 15. The Director established the Head Administrative As- sistant Eligible List on August 24, 1973, pursuant to the Veter- ans’ Preference Statute by placing the names of the persons who passed the competitive examination for permanent ap- pointment to the position classified Head Administrative Assis- tant on the Head Administrative Assistant Eligible List in the order of (1) disabled veterans, (2) other veterans, and (3) other applicants. Within each group, eligible persons were ranked in order of their scores on the examination with those receiving the highest scores ranked first. 16. The Director placed the name of the plaintiff eleventh on the Head Administrative Assistant Eligible List. Pursuant to the Veterans’ Preference Statute, he placed on the Head Ad- ministrative Assistant Eligible List ahead of the name of the plaintiff the names of eight male veterans who received lower scores on the competitive examination than the plaintiff. Pur- suant to the Veterans’ Preference Statute, he thereafter added to the Head Administrative Assistant Eligible List ahead of the name of the plaintiff the names of three additional male veter- ans who received lower scores on the competitive examination than the plaintiff. The plaintiff is now ranked fourteenth on the Head Administrative Assistant Eligible List. But for the Veterans’ Preference Statute and its application by the defend- ants, the plaintiff would be ranked third on the Head Admin- istrative Assistant Eligible List. 50 17. Pursuant to Rule 14 of the Civil Service Rules, the Di- rector certified to the appointing authority for the one perma- nent position as Head Administrative Assistant the first three names on the Head Administrative Assistant Eligible List, each of which was the name of a male veteran. But for the Veterans’ Preference Statute, the Director would have certi- fied the name of the plaintiff. 18. The position of Head Administrative Assistant has not yet been filled. 19. Twelve of the fifteen males on the Head Administrative Assistant Eligible List are veterans. None of the four females on the Head Administrative Assistant Eligible List is a veteran. 20. The plaintiff, who is not a veteran, made application for the competitive examination for permanent appointment to positions classified Administrative Assistant. The plaintiff received a score of 87 on the competitive examination for Ad- ministrative Assistant held on May 18, 1974. The Director found the plaintiff qualified for permanent appointment to positions classified Administrative Assistant and placed her name on the eligible list therefor, a copy of which is attached hereto marked “C” and is hereinafter referred to as “the Ad- ministrative Assistant Eligible List”. 21. The Director established the Administrative Assistant Eligible List in April, 1975, pursuant to the Veterans’ Prefer- ence Statute by placing the names of the persons who passed the competitive examination for permanent appointment to positions classified Administrative Assistant on the Ad- ministrative Assistant Eligible List in the order of (1) disabled veterans, (2) other veterans, and (3) other applicants. Within each group, eligible persons were ranked in order of their scores on the examination with those receiving the highest scores ranked first. 22. The Director placed the name of the plaintiff seventieth on the Administrative Assistant Eligible List. Pursuant to the Veterans’ Preference Statute, he placed on the Administrative Assistant Eligible List ahead of the name of the plaintiff the names of fifty-two veterans, fifty of whom received lower 51 scores than, and two o ual scores to, the plaintiff on the competitive examination. But for the Veter- ans’ Preference Statute and its application by the defendants, the plaintiff would be tied for seventeenth on the Administra- tive Assistant Eligible List. 23. As of April 23, 1975, there were requisitions for seven permanent positions classified as Administrative Assistant to be filled from the Administrative Assistant Eligible List. All additional requisitions for permanent positions classified as Administrative Assistant through April, 1977, will be filled from the Administrative Assistant Eligible List. 24. On May 13, 1975, the Director began certifying names to appointing authorities from the Administrative Assistant Eligible List. 25. By operation of the Veterans’ Preference Statute and the rules and regulations of the Division implementing said Statute and by reason of their enforcement by the defendants, the plaintiff is excluded from any reasonable possibility of being in the group of eligible persons from which the respec- tive appointing authorities will be required to fill the seven permanent positions classified as Administrative Assistant for which there were requisitions as of April 23, 1975. The seven permanent positions classified as Administrative Assistant for which there were requisitions as of April 23, 1975, have not yet been filled. 26. By operation of the Veterans’ Preference Statute and the rules and regulations of the Division implementing said Statute and by reason of their threatened enforcement by the defendants, the plaintiff has a significantly reduced oppor- tunity of being in the group of eligible persons from which ap- pointing authorities will be required to fill permanent posi- tions classified as Administrative Assistant for which requisi- tions are issued through April, 1977. But for the Veterans’ Preference Statute and the rules and regulations of the Divi- 52 sion implementing said Statute, the plaintiff would be in the group of eligible persons from which appointing authorities will be required to fill permanent positions classified as Ad- ministrative Assistant prior to April, 1977. 27. Three of the sixteen eligible persons who received higher scores than plaintiff are also female persons, are also not veterans and are ranked on the Administrative Assistant Eligible List sixty-fifth, sixty-seventh and sixty-eighth. But for the Veterans’ Preference Statute and the rules and regula- tions of the Division implementing said Statute these other female eligible persons would be ranked fifth, tied for tenth and tied for twelfth. The Veterans’ Preference Statute and the rules and regulations of the Division implementing said Statute and their enforcement by defendants has excluded these other eligible female persons from being in the group of eligible persons from which respective appointing authorities will be required to select persons for appointment to perma- nent positions classified as Administrative Assistant. 28. Approximately 20% of those persons qualified for ap- pointment to permanent positions classified Administrative Assistant are female, but no female will be in the group of per- sons from which appointing authorities will be required to select persons for appointment to the permanent positions classified as Administrative Assistant for which seven requisi- tions are presently outstanding. 29. Sixty-two of the sixty-three veterans on the Ad- ministrative Assistant Eligible List are males. Of the 136 males on the Administrative Assistant Eligible List, sixty-two (or 45.6%) are veterans. Of the 27 females on the Adminis- trative Assistant Eligible List, only one (or 3.7%) is a veteran. 30. About 98% of all veterans in the Commonwealth are male. For the five-year period 1969 through 1973, approxi- mately 55% of all males passing civil service examinations were veterans, while approximately 1% of all females passing 53 civil service examinations were veterans. Of all veterans pass- ing civil service examinations during the period 1969 through 1973, approximately 98% were males. 31. Defendants’ enforcement of the Veterans’ Preference Statute excludes most qualified female applicants from con- sideration for appointment to permanent Administrative As- sistant positions in the classified civil service of the Common- wealth. Said enforcement has excluded and will continue to exclude a significantly higher proportion of qualified female applicants from consideration for permanent appointments than it does qualified male applicants. 32. The salaries for positions classified Head Administrative Assistant and Administrative Assistant are in excess of $10,000 per year. 33. For the past twelye years, the plaintiff has been a career civil servant in the employ of the Commonwealth. On March 28, 1975, she was laid off from a permanent position in the Classified Civil Service of the Commonwealth as State Federal Funds and Personnel Coordinator in the Civil Defense Agency of the Commonwealth. At the time she was laid off, she had held that permanent position for approximately eight years. The Veterans’ Preference Statute grants to disabled veterans a preference when employees are laid off by requiring that disabled veterans be laid off after all other employees. 34. The plaintiff has in the past been denied job opportuni- ties by the Veterans’ Preference Statute, the rules and regula- tions of the Division implementing said Statute and their en- forcement by the defendants. She has been excluded from consideration, and has been delayed in being reached for con- sideration, for many positions for which she has applied in the Classified Civil Service of the Commonwealth because male veterans with lower scores were ranked ahead of her on eligi- ble lists. 35. The plaintiff is at the present time unemployed. She desires to continue to be a career civil servant in the employ of 54 the Commonwealth by obtaining a permanent position as a Head Administrative Assistant or an Administrative Assistant. 36. The Veterans’ Preference Statute and the rules and regulations of the Division implementing said Statute and their enforcement by the defendants have deprived and con- tinue to deprive the plaintiff of the equal protection of the laws and of due process of law in violation of the Fourteenth Amendment to the United States Constitution in that they unlawfully discriminate in public employment on the basis of sex by systematically excluding qualified and eligible female applicants, including the plaintiff, from the group of eligible persons from which appointing authorities are required to make selections for appointment to permanent positions in the Classified Civil Service of the Commonwealth. 37. Unless restrained by this Court, the defendants will use the Administrative Assistant Eligible List to fill the seven per- manent positions classified as Administrative Assistant for which there were requisitions as of April 23, 1975, and any ad- ditional permanent positions classified as Administrative Assis- tant for which requisitions are issued. 38. The Head Administrative Assistant Eligible List will ex- pire on August 24, 1975. The appointing authority has thus far not appointed any of the three persons who were certified and whose names appear highest on that list. Unless re- strained by this Court, the appointing authority will make such appointment or the defendants will permit the Head Ad- ministrative Assistant Eligible List to expire before the plain- tiff can be considered for appointment to the one available position as Head Administrative Assistant. : 39. The use for positions classified as Head Administrative Assistant and Administrative Assistant of eligible lists established in accordance with the Veterans’ Preference Statute and the rules and regulations of the Division imple- menting said Statute is causing irreparable harm to the plain- tiff for which she has no plain and adequate remedy at law. 55 Count II 40. The plaintiff reasserts the averments of Paragraphs 1 through 39, inclusive, of this Complaint with the seme force and effect as if herein set forth and repeated in full. 41. For many years the Commonwealth has excluded fe- males from, or discriminated against females in filling, various positions in public employment. As a result, females continue to be underrepresented in the positions in the Classified Civil Service of the Commonwealth which are most desirable in terms of salary, responsibility and opportunity for advance- ment, including positions classified Head Administrative Assis- tant and Administrative Assistant. 42. Because of the Commonwealth’s history of discrimina- tion against females in pyblic employment, the defendants are under an affirmative constitutional duty to the plaintiff to eliminate every law, rule and regulation that has the effect of operating in practice to perpetuate the discrimination against qualified female applicants in public employment, including the Veterans’ Preference Statute and the rules and regulations of the Division implementing said Statute. Count III 43. The plaintiff reasserts the averments of Paragraphs 1 through 39, inclusive, of this Complaint with the same force and effect as if herein set forth and repeated in full. 44. The United States of America has adopted various laws, regulations and practices expressly excluding females from the armed forces and expressly limiting opportunities for females in the armed forces with the effect that females have been and continue to be discouraged by federal law from joining or at- tempting to join the armed forces of the United States. Such 56 laws and regulations include laws and regulations limiting the percentage of positions in the armed forces open to females, laws and regulations establishing stricter qualifications for females than for males seeking to join the armed forces, laws and regulations discriminating against females as to benefits, positions and promotions available to members of the armed forces, and laws and regulations excluding females from the service academies. Said laws and regulations have created an environment which has discouraged and discourages females generally from joining the armed forces of the United States. 45. The Veterans’ Preference Statute and the rules and regulations of the defendant Division implementing said Statute and their enforcement by the individual defendants deprive plaintiff of the equal protection of the laws and of due process in violation of the Fourteenth Amendment to the United States Constitution in that they unlawfully dis- criminate in public employment on the basis of sex by the adoption of a qualification for public employment which in- corporates and perpetuates the sex discrimination expressly established by law and regulation in the armed forces of the United States. Wuenrerore, the plaintiff prays: A. That a three-judge Court be convened pursuant to 28 U.S.C. §§ 2281 and 2284 to hear and determine this action upon at least five days’ notice of hearing to the Governor and Attorney General of the Commonwealth. B. That the Court enter a preliminary injunction enjoining the defendants, their officers, agents, servants, employees, and attorneys from filling any permanent position in the Classified Civil Service of the Commonwealth classified as Ad- ministrative Assistant until this action can be heard and decid- ed on the merits. C. That the Court enter a preliminary injunction enjoining the defendants, their officers, agents, servants, employees, 57 and attorneys from filling the permanent position of Head Ad- ministrative Assistant at the Solomon Mental Health Center in the Department of Mental Health of the Commonwealth until this action can be heard and decided on the merits. D. That the Court enter a preliminary injunction enjoining the defendants, their officers, agents, servants, employees, and attorneys from permitting the eligible list for the position of Head Administrative Assistant at the Solomon Mental Health Center in the Department of Mental Health of the Commonwealth to expire before this action can be heard and decided on the merits. E. That the Court enter a permanent injunction enjoining the defendants, their officers, agents, servants, employees, and attorneys from granting any preference to veterans or dis- abled veterans in filling positions in the Classified Civil Service of the Commonwealth classified as Head Administrative As- sistant or Administrative Assistant. F. That the Court enter a permanent mandatory injunction ordering the defendant Director to reestablish the Head Administrative Assistant Eligible List and the Administrative Assistant Eligible List by ranking the eligible persons thereon solely in the order of their scores without reference to any preference accorded to any person by Mass. G.L. c. 31, §§ 21- 25. G. That the Court enter a permanent mandatory injunc- tion ordering the defendants, their officers, agents, servants, employees, and attorneys to consider for appointment to the permanent position of Head Administrative Assistant at the Solomon Mental Health Center in the Department of Mental Health of the Commonwealth the three highest ranking avail- able eligible persons on the Head Administrative Assistant Eligible List. H. That the Court enter a permanent injunction ordering the defendants, their officers, agents, servants, employees, 58 and attorneys to undertake such affirmative action to hire qualified female applicants for permanent positions as Ad- ministrative Assistants as to the Court may seem meet and just upon the evidence to eradicate the present effects of past sex discrimination in filling such positions. I. That the Court enter a permanent injunction enjoining the defendants, their officers, agents, servants, employees, and attorneys from applying the Veterans Preference Statute, Mass. G.L. c. 31, §§ 21-25, to eligible lists for permanent posi- tions in the Classified Civil Service of the Commonwealth where its effect is to grant to male veterans a preference over female non-veterans in the ranking on such eligible lists. J. That the Court enter a declaratory judgment that the Veterans’ Preference Statute, Mass. G.L. c. 31, §§ 21-25, is unconstitutional as applied to positions in the Classified Civil Service of the Commonwealth classified as Head Admin- istrative Assistant or Administrative Assistant. K. That the Court enter a declaratory judgment that the Veterans’ Preference Statute, Mass. G.L. c. 31, §§ 21-25, is unconstitutional. L. That the Court grant to the plaintiff her costs and ex- penses of litigation. 59 M. That the Court grant to the plaintiff such further and other related relief as to the Court may seem meet and just. May 20, 1975 By her attorneys, RICHARD P. WARD JOHN SILAS HOPKINS, III STEPHEN B. PERLMAN ELEANOR D. ACHESON Ropes & Gray 225 Franklin Street Boston, Massachusetts 02110 617-423-6100 JOHN REINSTEIN 100 Franklin Street Boston, Massachusetts 02110 617-426-3325 60 ATTACHMENT A. CERTIFICATION OF OTHER ELIGIBLES Rule 14. 1. Certification shall be made in the order of the standing on the eligible list, except as provided in Section 4 of this rule, as follows: — For 1 vacancy, 3 names For 4 vacancies, 6 names 2 vacancies, 4 names 5 vacancies, 7 names 3 vacancies, 5 names For each multiple of five vacancies, the same multiple of seven names; for vacancies from one to four, inclusive, over a multqple of five, additional names according to the above table. Eligible List,” has been deleted from the Complaint and has been reproduced as Exhibit 2 to the Agreed Statement of Facts at page 104 of the Appendix. } [Attachment C, entitled “Administrative Assistant Eligible List,” has been deleted from the Complaint and has been reproduced as Exhibit 6 to the Agreed Statement of Facts at page 113 of the Appendix. } 61 United States District Court for the District of Massachusetts. No. 74-5061-T. [Title omitted in printing. ] Plaintiffs’ Motion to Consolidate for Trial this Action with Feeney v. The Commonwealth of Massachusetts, et al., Civil Action No. 75-1991-T. The plaintiffs move pursuant to Fed. R. Civ. P. 42(a) to consolidate Feeney v. The Commonwealth of Massachusetts, et al., Civil Action No. 75-1991-T, with this action for trial on the following grounds: 1. The actions involve common questions of law concerning the constitutionality of the Massachusetts Veterans’ Preference Statute. The actions involve a substantial number of common issues of fact. M 2. Consolidation of these actions would save substantial time of the Court and the parties and would not prejudice any party. By their attorneys, RICHARD P. WARD JOHN SILAS HOPKINS, III STEPHEN B. PERLMAN ELEANOR D. ACHESON Ropes & Gray 225 Franklin Street Boston, Massachusetts 02110 617-423-6100 May 21, 1975 62 United States District Court for the District of Massachusetts. No. 75-1991-T. [Title omitted in printing. ] Plaintiff's Application for a Temporary Restraining Order. The plaintiff moves pursuant to 28 U.S.C. § 2284(3) that the Court enter a temporary restraining order: A. Finding on the basis of paragraphs 16, 22, 33, 35, 37 and 38 of the Complaint, which is verified under oath by the plain- tiff, that the plaintiff will, unless the defendants are tempo- rarily restrained, suffer irreparable damage in that (1) On March 28, 1975, the plaintiff was laid off from a permanent position in the Classified Civil Service of the Commonwealth of Massachusetts; (2) The plaintiff is at present unemployed and desires to continue a twelve-year career in the public service of the Commonwealth; (3) But for the operation of the Massachusetts Vet- erans Preference Statute, Mass. G.L. c. 31, §§ 21- 25, the plaintiff would rank third (rather than four- teenth) on an August 24, 1973 eligible list for a perma- nent position as head administrative assistant at the Solomon Mental Health Center in the Department of Mental Health of the Commonwealth and seventeenth (rather than seventieth) on an April, 1975 eligible list for permanent positions as administrative assistant in the Classified Civil Service of the Commonwealth; and \ ‘ww 63 \ (4) Unless restrained the defendants will begin using the two foregoing eligible lists to make appointments to permanent positions or will permit the eligible list for head administrative assistant to expire thereby impairing the plaintiff's opportunity to be considered for a job; and B. Ordering that the defendants, their officers, agents, servants, employees, and attorneys, and all persons in active concert or participation with them, be temporarily restrained, until hearing and determination of this action by a three-judge court pursuant to 28 U.S.C. §§ 2281 and 2284, from any of the following actions: (1) Making any appointment to any permanent posi- tion in the Classified Civil Service of the Commonwealth of Massachusetts from the April, 1975 eligible list for positions classified as administrative assistant, provided that this restraining order shall not prevent making ap- pointments to temporary positions classified as adnuini- strative assistant from said list and provided further that any position classified as administrative assistant may be filled (or its present holder continued) on a provisional basis; (2) Making any appointment to the permanent posi- tion of head administrative assistant at the Solomon Men- tal Health Center in the Department of Mental Health of the Commonwealth of Massachusetts, provided that said position may be filled (or its present holder continued) on a provisional basis; or (3) Permitting the August 24, 1973 eligible list for the position of head administrative assistant at the Solomon 64 Mental Health Center in the Department of Mental Health of the Commonwealth of Massachusetts to expire. By her attorneys, RICHARD P. WARD JOHN SILAS HOPKINS, III STEPHEN B. PERLMAN ELEANOR D. ACHESON Ropes & Gray 225 Franklin Street Boston, Massachusetts 02110 (617) 423-6100 JOHN REINSTEIN 100 Franklin Street Boston, Massachusetts 02110 (617) 426-3325 May 22, 1975 65 United States District Court for the District of Massachusetts. No. 75-1991-T. [Title omitted in printing. ] Temporary Restraining Order. This action came on for hearing on the plaintiff’s applica- tion for a temporary restraining order before the Court, Honorable Joseph L. Tauro, District Judge, presiding, and after hearing the Court fjnds on the basis of paragraphs 16, 22, 33, 35, 37 and 38 of the Complaint, which is verified under oath by the plaintiff, that the plaintiff will, unless the defend- ants are temporarily restrained, suffer irreparable damage in that (1) On March 28, 1975, the plaintiff was laid off from a permanent position in the Classified Civil Service of the Commonwealth of Massachusetts; (2) The plaintiff is at present unemployed and desires to continue a twelve-year career in the public service of the Commonwealth; (3) But for the operation of the Massachusetts Vet- erans’ Preference Statute, Mass. G.L. c. 31, §§ 21- 25, the plaintiff would rank third (rather than four- teenth) on an August 24, 1973 eligible list for a perma- nent position as head administrative assistant at the Solomon Mental Health Center in the Department of Mental Health of the Commonwealth and seventeenth (rather than seventieth) on an April, 1975 eligible list for 66 permanent positions as administrative assistant in the Classified Civil Service of the Commonwealth; and (4) Unless restrained the defendants will begin using the two foregoing eligible lists to make appointments to permanent positions or will permit the eligible list for head administrative assistant to expire thereby impairing the plaintiff’s opportunity to be considered for a job. It is therefore ORDERED: A. That the defendants, their officers, agents, servants, employees, and attorneys, and all persons in active concert or participation with them, be temporarily restrained, until hearing and determination of this action by a three-judge court pursuant to 28 U.S.C. §§ 2281 and 2284, from either of the following actions: (1) Making or approving any appointment to any per- manent position in the Classified Civil Service of the Commonwealth of Massachusetts from the April, 1975 eligible list for positions classified as administrative assist- ant, provided that this restraining order shall not prevent making appointments to temporary positions classified as administrative assistant from said list and provided fur- ther that any position classified as administrative assist- ant may be filled (or its present holder continued) on a provisional basis; or (2) Making or approving any appointment to the per- manent position of head administrative assistant at the Solomon Mental Health Center in the Department of Mental Health of the Commonwealth of Massachusetts, provided that said position may be filled (or its present holder continued) on a provisional basis. 67 _ B. That expiration of the August 24, 1973 eligible list for the position of head administrative assistant at the Solomon Mental Health Center in the Department of Mental Health of the Commonwealth of Massachusetts be extended by the de- fendants until further order of this Court. Dated at Boston, Massachusetts this 22d of May, 1975. JOSEPH L. TAURO, United States District Judge. 68 United States District Court for the District of Massachusetts. Nos. 74-5061-T, 75-1991-T. [Titles omitted in printing. ] Defendants’ Motion to Dismiss. Now come the defendants in the above-entitled consoli- dated actions and move as follows: The Anthony Case 1. That the Court dismiss Anthony et al. v. Commonwealth et al. for want of subject matter jurisdiction, there being no case or controversy as is required by U.S. Const., Art. III, because the enactment by the General Court of c. 134, Acts of 1975 has rendered this action moot. The Feeney Case 2. That the Court dismiss Feeney v. Commonwealth et al. in its entirety for failure to state a claim upon which relief can be granted, there being no allegations to support a claim of unlawful discrimination. 3. That the Court dismiss Feeney v. Commonwealth et al. as to the Commonwealth of Massachusetts for want of subject matter jurisdiction, the Commonwealth never having con- sented to suit, as is required by U.S. Const., Amend. XI. The defendants further move that argument on the above grounds for dismissal be heard concurrently with the argu- ment on the merits in the above-entitled consolidated actions 69 according to the schedule arranged by the parties and ordered by this Court on May 23, 1975. By their Attorney, ALAN K. POSNER Assistant Attorney General [Certificate of Service omitted in printing. ] 70 United States District Court for the District of Massachusetts. No. 75-1991-T. [Title omitted in printing. ] Order. Pursuant to the authority and command of 28 U.S.C. § 2284, I hereby designate and assign the Honorable Levin H. Campbell, United States Court of Appeals for the First Cir- cuit, and the Honorable Frank J. Murray, United States District Judge for the District of Massachusetts to sit with the Honorable Joseph L. Tauro, United States District Judge for the District of Massachusetts in the above-entitled cause, a three-judge district court being required by 28 U.S.C. § 2281. FRANK M. COFFIN, Chief Judge, U.S. Court of Appeals for the First Circuit. Dated: June 6, 1975 71 United States District Court for the District of Massachusetts. No. 75-1991-T. [Title omitted in printing. ] Agreed Statement of Facts. For purposes of this case only, the parties to the above- entitled case stipulate and agree as follows: 1. The Plaintiff, Helen B. Feeney, is a female, residing in the Commonwealth of Massachusetts (Commonwealth). 2. The Defendant Division of Civil Service (Division) is an executive and administrative department of the Com- monwealth created under the provisions of Mass. G.L. c. 13, § 2, and by that same statute placed under the supervision and control of the Director of Civil Service (Director) and the Civil Service Commission (Commission). Said Division is charged with administering and enforcing the provisions of the Massa- chusetts Civil Service Law, Mass. G.L. c. 31. 3. The Defendant Edward W. Powers was the Director from August 14, 1973 through June 30, 1975 and as such was an officer of the Commonwealth and administrative and ex- ecutive head of the Division. 4. The Defendants Nancy B. Beecher, Wayne A. Budd, Richard Linden, Richard J. Healy and John Donegan are members of the Commission, and together they comprise the Commission. 5. The Division, the Director and the Commission are charged by the law of the Commonwealth with the admini- stration and enforcement of the Massachusetts Civil Service Law which sets forth the requirements and procedures to be 72 followed in filling vacancies in positions in the employ of the Commonwealth which positions are known as the Classified Civil Service. As part of these general duties, these Defend- ants are charged with enforcement of the Veterans’ Preference Statute (Mass. G.L. c. 31, §§ 21-25) which is a part of the Massachusetts Civil Service Law. Approximately 60 percent of all positions in the employ of the Commonwealth are sub- ject to the Massachusetts Civil Service Law. The remaining 40 percent of positions are exempt from the Massachusetts Civil Service Law. 6. The Classified Civil Service is divided into two Divisions known as the Classified Official Service and as the Classified Labor Service. All positions referred to herein are positions in the Classified Official Service. Approximately 90,000 em- ployees of the Commonwealth and its municipalities are pres- ently employed in positions in the Classified Official Service subject to the Massachusetts Civil Service Law. Over 100,000 appointments and promotions to positions in the Classified Of- ficial Service was made from Eligible Lists established by the Director in the ten year period from July 1, 1964 through June 30, 1974. In the fiscal year of the Commonwealth ended June 30, 1974, over 11,000 appointments (not including pro- motions) were made to positions in the Classified Official Serv- ice from Eligible Lists established by the Director. 7. Applicants for permanent positions governed by the Mas- sachusetts Civil Service Law and the Civil Service Rules are re- quired to take a competitive examination that is designed to separate qualified applicants from unqualified applicants and to measure the applicants’ relative ability and fitness to per- form the duties of the position for which the examination is given. Applicants who pass the examination are referred to as “eligibles” and are placed on an “Eligible List”. An “unas- sembled” competitive examination is one on which the relative 73 grades of applicants are determined on the sole basis of the training and experience of the applicants. On all other com- petitive examinations the relative grades are determined by a formula which gives weight both to the results of a written ex- amination and to the training and experience of the appli- cants. On either type of examination applicants receive ap- propriate credit for relevant experience acquired in the mili- tary service of the United States. 8. The Veterans’ Preference Statute requires each Eligible List to be established by ranking “eligibles” in the following order: (1) disabled veterans in order of their respective grades on the examination; (2) veterans in order of their respective grades on the examination; (3) widows of veterans and wid- owed mothers of veterans in order of their respective grades on the examination; and (4) all other eligibles in order of their respective grades on the examination. These four classifica- tions are hereinafter referred to as “Preference Categories”. 9. Pursuant to Mass. G.L. c. 31 and regulations issued thereunder, each appointing authority of the Commonwealth complies with the following procedures in filling vacancies for permanent positions governed by the Massachusetts Civil Serv- ice Law. The appointing authority sends a requisition to the Director stating the number of positions to be filled. The Director then certifies eligibles to the appointing authority in the order of rank on the Eligible List. One of two procedures is followed in certification and appointment of eligibles. Un- der one procedure (hereinafter referred to as “Certification Procedure One”), the Director certifies the number of eligibles which bears the following relationship to the number of va- cancies stated on the requisition: 74 No. of Vacancies No. Certified l 2or3 2 4 3 5 4 6 5 7 (Thereafter, seven names are certified for each multiple of five vacancies; for vacancies from one to four, inclu- sive, over a multiple of five, additional names accord- ing to the above table.) The appointing authority is required to make any appoint- ment from among those certified. Certification Procedure One was followed with respect to the Solomon Head Admini- strative Assistant Eligible List referred to in paragraph 12 hereof. Under the other procedure (hereinafter referred to as “Certification Procedure Two’), for the position or positions requisitioned by each appointing authority, the Director sends out Notices of Interview to a number of the highest ranking eligibles which is larger than that specified by the table above. Only eligibles who report for an interview and agree to accept the position or positions are considered to be interested there- in. The appointing authority is required to make any appoint- ment from the number of the highest ranking interested eligi- bles that is determined by the table above (e.g., for two vacan- cies the appointing authority must appoint two of the four highest ranking eligibles who are considered to be interested in the position). Certification Procedure Two was being fol- lowed with respect to the Administrative Assistant Eligible List referred to in paragraph 16 hereof until the entry of the restraining order in this action on May 23, 1975. Certification 75 Procedure Two would have been followed with respect to the Counsel I Eligible List referred to in paragraph 18 hereof but for the entry of the restraining order in Anthony, et al. v. Commonwealth, et al., Civil Action No. 74-5061-T (Novem- ber 4, 1974, D. Mass.). An Eligible List remains in effect for a maximum of two years after it is established but expires in less than two years if and when there remains no eligible thereon available for appointment. In some cases, a new examination is given for a position during the two year effective period of the Eligible List for that position even though eligibles remain thereon who are available for appointment. When this oc- curs, a new Eligible List is established, and the remaining eligibles on the prior list are integrated into the new list in order of grade within each Preference Category. While an Eligible List is in effect, all certifications to appointing author- ities and all appointments to the position or positionsfor which the examination has been given must be made from the Eligi- ble List. Under either Certification Procedure One or Certifi- cation Procedure Two, those eligibles determined by the table above from which an appointing authority must make any ap- pointment to a permanent position are referred to as the “eligibles certified for appointment”. In all cases, all eligibles who are tied at a particular grade within a Preference Cate- gory have equal eligibility to be included among the eligibles certified for appointment (e.g., under Certification Procedure One, if there were two positions and eligibles in the highest Preference Category with scores of 94, 94, 92, 90, 90, 88 and 84, five, rather than four, eligibles would be certified for ap- pointment). 10. In January, 1973, Mrs. Feeney made an application for the competitive examination for appointment to one perma- nent position classified by the Division as Head Administrative Assistant (Dr. Harry C. Solomon Mental Health Center) (here- inafter referred to as “Solomon Head Administrative Assist- 76 ant”). A copy of the Notice of Examination is attached hereto as Exhibit 1. The weekly salary rate for this position, a grade 17, ranges from $237.95 to $300.05. 11. On February 24, 1973, a competitive examination for Solomon Head Administrative Assistant was held. Mrs. Feeney received a grade of 92.32, which was the third highest grade on the examination. 12. On August 24, 1973, in accordance with the procedures described in paragraphs 7, 8 and 9 hereof, the Director established an Eligible List for Solomon Head Administrative Assistant, a copy of which is attached hereto as Exhibit 2. The copy of the Eligible List attached as Exhibit 2 and all other Eligible Lists attached as exhibits are true copies of official records of the Division, and the data contained thereon may be taken to be what it purports to be (e.g., the designation of those eligibles who were granted veteran status for purposes of the preference provided by the Veterans’ Preference Statute). On each Eligible List attached hereto as an exhibit, a hand- written notation of the sex of each eligible has been added by the parties for the purpose of this action although such hand- written notation is not part of the official record of the Divi- sion. Attached hereto as Exhibit 3 is a list of the veterans ap- pearing on Exhibit 2 setting forth for each veteran the date of discharge from military service and the branch of military service to the extent ascertainable from records of the Divi- sion. 13. On October 3, 1973, the Director certified eligibles for appointment to the appointing authority for the permanent position of Solomon Head Administrative Assistant, a copy of the certification is attached hereto as Exhibit 4. No appoint- ment has yet been made to this position. 14. In February, 1974, Mrs. Feeney made an application for the competitive examination for permanent appointment to positions classified by the Division as Administrative Assist- 77 ant. Attached hereto as Exhibit 5 is a copy of the Notice of Ex- amination for these positions. 15. On May 18, 1974, a competitive examination for Ad- ministrative Assistant was held. Mrs. Feeney received a grade of 87. Sixteen applicants received higher grades. Five other applicants received the same grade. 16. In April, 1975, in accordance with the procedures de- scribed in paragraphs 7, 8 and 9 hereof, the Director estab- lished an Eligible List for Administrative Assistant (the Ad- ministrative Assistant Eligible List), a copy of which is at- tached hereto as Exhibit 6. Attached hereto as Exhibit 7 is a revised copy of the Administrative Assistant Eligible List which reflects some adjustments in rank for veterans who were found, prior to May 13, 1975, to be eligible for status as dis- abled veterans. Attached hereto as Exhibit 8 is a list of the veterans appearing on Exhibit 7 setting forth for each veteran the date of discharge from the military service and the branch of the military service to the extent ascertainable from records of the Division. 17. As of May 13, 1975, there were requisitions from five appointing authorities for a total of seven permanent positions classified as Administrative Assistant to be filled from the Ad- ministrative Assistant Eligible List. On May 13, 1975, the Director sent out Notices of Interview for Administrative Assistant in the manner described as Certification Procedure Two in paragraph 9 hereof. As a result of the restraining order entered in this action on May 23, 1975, no appointments to permanent positions classified as Administrative Assistant have been made. There are presently 43 provisional ap- pointees to permanent positions classified as Administrative Assistant. If these positions are filled on a permanent basis over the two year effective period of the Administrative Assist- ant Eligible List, these positions will be filled from eligibles 78 certified for appointment from the Administrative Assistant Eligible List. 18. Attached hereto as Exhibit 9 is an Eligible List for po- sitions classified as Counsel I which was established by the Director on October 25, 1974, in accordance with the pro- cedures described in paragraphs 7, 8 and 9 hereof. Attached hereto as Exhibit 10 is a list of the veterans appearing on Ex- hibit 9 setting forth for each veteran the date of discharge from the military service and the branch of the military service to the extent ascertainable from records of the Division. The un- assembled competitive examination for Counsel I is an open and continuous examination, i.e., new applications are con- tinuously accepted and processed, and from time to time applicants are graded and those receiving passing grades are integrated into the Eligible List in order of respective grades within each of the Preference Categories referred to in para- graph 8 hereof. Attached hereto as Exhibit 11 is an additional list of persons who have passed the unassembled examination for Counsel I and have been integrated into the Counsel I Eligible List in the manner described in this paragraph. Kathryn Noonan, a female non-veteran, should also be on the Counsel I Eligible List with a grade of 94. As of November 6, 1974, there were requisitions from thirteen appointing au- thorities for a total of nineteen permanent positions classified as Counsel I to be filled from the Counsel I Eligible List. 19. Of the veterans who took the Administrative Assistant examination given on May 18, 1974, approximately 84 of 147, or 57 percent, were not put on the Eligible List. Of those 84 veterans declared ineligible, 46 failed the written test and 38 failed to qualify for other reasons. Of the persons who were not put on the Administrative Assistant Eligible List after tak- ing the applicable examination, approximately 84 of 301, or 28 percent, were veterans. Of the 301 persons declared ineligi- ble, approximately 166 failed the written test, 132 failed to 79 qualify for other reasons and 3 cannot be accounted for. Of the veterans who took the Head Administrative Assistant ex- amination given on February 24, 1973, 7 of 16, or 44 percent, were not put on the eligible list. Of those 7 veterans declared ineligible, 4 failed the written test and 3 failed to qualify for other reasons. Of the persons who were not put on the Eligi- ble List for Head Administrative Assistant after taking the ap- plicable examination, approximately 7 of 16, or 44 percent, were veterans. Of the 16 persons declared ineligible, 11 failed the written test and 5 failed to qualify for other reasons. 20. During the period from July 1, 1963 through June 30, 1973, 47,005 appointments (not including promotions) to per- manent positions in the Classified Official Service were made by appointing authorities of the Commonwealth and its mu- nicipalities. Forty-three percent, or 20,211, of these appoint- ments were females (of whom 374, or 1.8 percent, were vet- erans). Fifty-seven percent, or 26,794, of these appointments were males (of whom 14,476, or 54 percent, were veterans). Attached hereto as Exhibit 12 is a table setting forth for the fiscal years of the Commonwealth from 1964 through 1973 in- clusive the numbers of persons appointed to permanent posi- tions in the Classified Official Service, and a breakdown by sex of the number -who were disabled veterans, veterans, “Gold Star” widows and widowed mothers of veterans and non- veterans for the purpose of application of the Veterans’ Preference Statute. For many positions there has not been competition between male and female applicants. A large percentage of the female appointees in permanent positions are in the lower grade and lower paying positions, such as clerical positions, for which males have traditionally not ap- plied. Some of the female appointees were appointed as a re- sult of the practice by some appointing authorities of requi- sitioning specifically for a female eligible (a practice which is no longer permitted and was discontinued about 1971 when 80 the Massachusetts Civil Service Law, which had expressly per- mitted such practice, was amended). Some of the female eligibles were appointed from lists which did not include many veterans. Some female eligibles were appointed from lists on which they were not included in the initial certifications be- cause of veterans’ preference but were reached for certifica- tion later during the two year effective period of the list as ad- ditional jobs were requisitioned from the same list. A greater proportion of the male appointees than female appointees in permanent positions are in the higher grade and higher paying positions. For many permanent positions for which males and females have competed, the application of the Veterans’ Pref- erence Statute has resulted in a substantially greater pro- portion of female eligibles than male eligibles not being certi- fied to appointing authorities for appointment to permanent positions. Attached hereto as Exhibits 13 through 62 are fifty examples of eligible lists on which female eligibles are ranked below male veterans with lower grades and from which lists eligibles, who were not certified for appointment, would have been certified if rankings on the eligible lists had been made solely on the basis of grades on the competitive examinations. These examples are not intended to be exhaustive and the par- ties have not determined how many such examples there are. There have been many thousands of eligible lists established during the past ten years. Attached hereto as Exhibit 63 is the Annual Report to the Great and General Court of the Com- monwealth and the Governor from the Massachusetts Civil Service Commission and the Director of Civil Service for the fiscal year ended June 30, 1974. 21. Attached hereto as Exhibits 64 through 79 are true copies of some notices of civil service examinations, principally for Counsel positions and Administrative Assistant positions, published by the Director pursuant to which examinations 81 were held, eligible lists were established and certifications for appointment to permanent positions were made. 22. Alfonso M. D’Apuzzo, a male, was originally examined on January 14, 1961, for the position of Assistant Attorney, Labor Relations Committee, Department of Labor Industries. His examination was given and an Eligible List established pursuant to Exhibit 71. He received the appointment to the job described above and has since been promoted to the posi- tion of Executive Secretary, State Labor Relations Commis- sion. 23. Robert F. Troy, a male, was originally examined on January 28, 1961, for the position of General Counsel, Divi- sion of Administration, Department of Public Health. His ex- amination was given and an Eligible List established pursuant to Exhibit 70. He received the appointment to the position described above and has since been promoted to the position of Chief Attorney of the Division of Administration, Department of Public Health. : 24. Joseph A. O’Neill, a male, was originally examined on September 23, 1961 for the temporary position of Administra- tive Assistant, Division of Local Health Services, Department of Public Health. His examination was given and an Eligible List established pursuant to Exhibit 68. He received the ap- pointment to the position described above and was subse- quently appointed permanently from the same Eligible List, a copy of which is attached hereto as Exhibit 80. 25. Margaret M. Higgins, a female, has been an employee of the Commonwealth at the State Labor Relations Commis- sion since October 27, 1937. She is presently employed in the position classified as Hearing Stenographer, a grade 13 posi- tion. The weekly salary range for Hearing Stenographer, grade 13, is $185.05 to $226.45. Margaret M. Higgins took the examination for the permanent position classified as Labor Relations Examiner held on December 10, 1966, and her name 82 was placed on the Eligible List established by the Director on June 12, 1967, a copy of which is attached hereto as Exhibit 81. The last three appointments to the permanent positions of Labor Relations Examiner were made from Exhibit 81. Ms. Higgins was not certified for appointment. The present week- ly salary range for the permanent position of Labor Relations Examiner is $250.95 to $318.15. 26. In addition to Counsel I, there are three additional Counsel categories in the Commonwealth designated as Coun- sel II, Counsel III and Counsel IV. Counsel III and Counsel IV positions are generally filled by promotion from within the service; Counsel I and Counsel II are both entry level posi- tions. As of March 7, 1975, 20 Counsel positions were filled by permanent employees as follows: Counsel I l Counsel II 10 Counsel III 7 Counsel IV 2 Of the 20 Counsel positions filled by permanent employees all 20 are filled by males, of whom 17 are veterans. No non-vet- eran holds a permanent appointment to a Counsel I position. All 20 of the Counsel positions filled by permanent employees were filled pursuant to the Massachusetts Civil Service Law including the Veterans’ Preference Statute. 27. Mrs. Feeney took the examination held on February 6, 1971 for one permanent position classified as Assistant Secre- tary, Board of Dental Examiners. She received the second highest grade of 86.68. She was ranked sixth on the Eligible List behind five male veterans of whom four received lower grades. Mrs. Feeney was not certified for appointment. A male veteran with a grade of 78.08 was certified and ap- 83 pointed. A copy of the Eligible List for Assistant Secretary, established in accordance with the procedures described in paragraphs 7, 8 and 9 hereof, is attached hereto as Exhibit 61. 28. Mrs. Feeney is not a veteran. She has never applied for admission to any branch of the armed services of the United States. 29. If the plaintiff, Helen B. Feeney, were present in Court, she would testify under oath as set forth in her affidavit attached hereto as Exhibit 82. 30. If Edward W. Powers were present in Court, he would testify under oath as set forth in his affidavit attached hereto as Exhibit 83. 31. There are approximately 868,000 veterans who reside in the Commonwealth of [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1509%3A02. Public record. Not legal advice.