Opposition — Rockwell International Corp. v. Kirk

INTHE

SUPREME COURT

OF THE UNITED STATES

October Term, 1978

No. _ @8°643

ROCKWELL INTERNATIONAL

CORPORATION,

Petitioner,

vs.

DAVID L. KIRK,

Respondent,

RESPONDENT'S BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEPHEN H. SILVER

Attorney for Respondent

GEORGE W. SHAEFER, JR. of

SILVER, WELLS & KREISLER

11661 San Vicente Boulevard

Suite 1000

Los Angeles, California 90049

(213) 826-3567

Attorneys for Respondent

IN ‘THE

SUPREME COURT

OF THE UNITED STATES

October Term, 1978

No.

ROCKWELL INTERNATIONAL

CORPORATION,

Petitioner,

vs.

DAVID L. KIRK,

Respondent,

RESPONDENT'S BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEPHEN H. SILVER

Attorney for Respondent

GEORGE W. SHAEFER, JR. of

SILVER, WELLS & KREISLER

11661 San Vicente Boulevard

Suite 1000

Los Angeles, California 90049

(213) 826-3567

Attorneys for Respondent

TOPICAL INDEA Page

Table of Authorities iv

QUESTIONS PRESENTED 1

STATUTE INVOLVED 2

STATEMENT OF THE CASE 3

REASONS FOR DENYING THE WRIT 6

I

THE ISSUES RAISED IN THE

PETITION HAVE ALREADY

BEEN RESOLVED BY THIS

COURT IN THE RECENT

OCCIDENTAL LIFE INS.

DECISION, 6

A, THE OCCIDENTAL OPINION

DID NOT DISTINGUISH

BETWEEN THE IDENTITY

OF A TITLE VII LITIGANT;

THE SAME PRINCIPLES

APPLY IRRESPECTIVE OF

WHETHER THE PLAINTIFF

IS THE EEOC OR THE

COMPLAINANT. 6

B. CONGRESS DID NOT INTEND

TO REMOVE THE RIGHT OF

A PATIENT EMPLOYEE TO

SUE AFTER THE EEOC

HAS CONCLUDED ITS IN-

VESTIGATION WHEN IT

AFFORDED AN IMPATIENT

EMPLOYEE THE RIGHT TO

DEMAND A RIGHT TO SUE

LETTER FROM THE EEOC

AFTER 180 DAYS. 10

i.

Cc, OCCIDENTAL HAS ALREADY A, FEDERAL POLICY

ESTABLISHED THAT TITLE CONSIDERATIONS DO

VII CONTAINS ITS OWN NOT PRECLUDE THE

PERIOD OF LIMITATIONS; TOLLING OF ANY APPLIC-

HENCE AN OVERALL ABLE PERIOD OF LIMITA-

LIMITATIONS PERIOD IS TIONS WHILE THE EEOC

NOT REQUIRED, 17 PROCEEDINGS WERE

PENDING.

II THE ASSERTED EVILS RESULT-

ING FROM THE DECISION B. PRINCIPLES OF FEDERAL

OF THE COURT OF APPEALS LAW REQUIRE THAT ANY

EITHER (1) MUST BE PRE- APPLICABLE STATUTE OF

SENTED TO CONGRESS FOR LIMITATIONS BE TOLLED

REMEDY OR (2) HAVE ALREADY WHILE THE EEOC HAS

BEEN ADDRESSED BY THE JURISDICTION.

OCCIDENTAL OPINION. 20

C. IF A STATE STATUTE OF

A, PETITIONER'S CONCERNS LIMITATIONS IS TO BE

MUST BE ADDRESSED TO BORROWED, THAT STATE'S

CONGRESS 20 LAW AS TO THE TOLLING

OF THE STATUTE MUST

B. THE OCCIDENTAL OPINION ALSO BE APPLIED.

HAS ALREADY CONSIDERED

AND DISPOSED OF THE D. UNDER CALIFORNIA LAW,

CONCERNS EXPRESSED BY A STATUTE OF LIMITATIONS

PETITIONER. 21 MUST BE TOLLED WHILE

| ADMINISTRATIVE REMEDIES

Ill ANY APPLICABLE STATUTE ARE BEING PURSUED.

LIMITATIONS WAS TOLLED

DURING THE PENDENCY OF IV. THE DECISION OF THE COURT

THE PROCEEDINGS BEFORE OF APPEALS IS IN ACCORD

THE EEOC, 25 WITH THE ONLY OTHER

CIRCUIT COURT OF APPEALS'

DETERMINATION REGARD-

ING THIS ISSUE.

ii, ili.

ms

Pre:

CONCLUSION

TABLE OF AUTHORITIES

Cases

American Pipe & Construction Co. v.

Utah (1974),

414 U.S. 538, 94S.Ct. 756

Barney v. Oelrichs (1891),

138 U.S. 529,118. Ct. 414,

34 L.Ed. 1037

Blount v. Rizzi (1971),

400 U.S. 410, 91 S.Ct. 423

37

27, 29

31

21

Burnett v. New York Central R. Co. (1965),

380 U.S. 424, 85 S.Ct. 1050

Campbell v. Graham-Armstrong (1973),

9 Cal, 3d 482, 107 Cal. Rptr. 777

Choate v. Caterpiller Tractor Company,

(7th Cir, 1968) 402 F.2d 357

Davis v. Valley Distributing Co.,

(9th Cir. 1975) 522 F.2d 827

27, 29

33, 34

30

14

Draper v. United States Pipe & Foundry Co.,

(6th Cir, 1976) 527 F.2d 515

Elkins v. Derby (1975),

12 Cal. 3d 410, 115 Cai. Rptr. 641

iv.

36

32

Franks v. Bowman Transportation Co,

(Sti Cir, 1974) 474 F.2d 906

Gates v. Georgia Pacific Corp.,

(9th Cir. 1974) 492 F.2d 292

Harris v. National TCO.,

(7th Cir, 1971) 454 F.2d 307

Harris v. Wallgreens Ditribution Center,

(6th Cir, 1972) 456 F.2d 588 30,

Johnson v. Goodyear Tire & Rubber Co.,

(Sth Cir, 1974) 491 F,2d 1364

Johnson v. Railway Express Agency, Inc.,

(1975) 421 U.S. 454,

95 S.Ct. 1716 9, 18,

a6, 24

ae, Da,

Mahroom v. Hook (9th Cir, 1977),

963 F.2d 1369

Occidental Liie Ins. Co. of Cal. v.

EEOC (1977),

432 U.S. 355, 97 S.Ct. 2447 6, 7, 8,

14, 15, 16,

18, 19, 20,

aa, 23, 26,

United States v. Georgia Power Co.,

(5th Cir, 1973) 474 F.2d 906

30

30

31

31

30

19

28

32

14

11

17

21

28

30

IN THE

SUPREME COURT

OF THE UNITED STATES

October Term, 1978

Statutes

California Code of Civil Procedure

§340(3) 32

No.

42 U.S.C. §1981 8, 19, 27

42 U.S.C. §1983 8 ROCKWELL INTERNATIONAL

CORPORATION,

42 U.S.C. §2000e (Title VII) a =

Petitioner,

42 U.S.C. §2000e [§706(b)] 4 vs.

42 U.S.C. §2000e-5e [§706(e)] 2, 3 DAVID L. KIRK,

42 U.S.C. §2000e-5(f)(1) [$706(f)(1)] 2, 10 Respondent,

Miscellaneous

118 Congressional Record 7168, 7565 (1972) 11 RESPONDENT'S BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

Sen, Rep. No. 92-415, 92D. C :

P ae FOR THE NINTH CIRCUIT

lst Sess., at 17 (1971) 14

QUESTIONS PRESENTED

1, Is any state statute of limitations

applicable to a proceeding instituted by a private

litigant according to the express provisions of

and within the prescribed time limitations set

forth in 42 U.S.C. §2000e (Title VII), or does

Title VII itself set forth the only jurisdictional

requirements for such a proceeding?

a 2. If the most analugous state statute of

limitations is applicable to a Title VII claim by

1,

a private litigant, is that period tolled during

the pendency of the EEOC proceeding as a matter

of (1) federal law or (2) state law?

STATUTE INVOLVED

This matter involves 42 U.S.C. §2000e

(Title VII) and in particular 42 U.S.C. §2000e-5(e)

[§706(e)] and (f)(1) [§706(f)(1)] which provide in

pertinent part as follows:

"(e) A charge under this section

shall be filed within one hundred and

eighty days after the alleged unlawful

employment practice occurred and

notice of the charge (including the date,

place and circumstances of the alleged

unlawful employment practice) shall be

served upon the person against whom

such charge is made within ten days

thereafter, ....

"(f)(1) If within thirty days

after a charge is filed with the Com-

mission or within thirty days after

expiration of any period of reference

under subsection (c) or (d) of this

section, the Commission has been

unable to secure from the respondent

a conciliation agreement acceptable

to the Commission, the Commission

may bring a civil action against any

respondent not a government, govern-

mental agency, or political subdivision

2.

named in the charge, * * * * If a charge

filed with the Commission pursuant to

subsection (b) of this section is dismissed

by the Commission, or if within one

hundred and eighty days from the filing

of such charge. . . the Commission

has not filed a civil action under this

section. . . or the Commission has

not entered into a conciliation agreement

to which the person aggrieved is a party,

the Commission, . . shall so notify the

person aggrieved and within ninety days

after the giving of such notice a civil

action may be brought against the respon-

dent named in the charge (A) by the

person claiming to be aggrieved... ."'

STATEMENT OF THE CASE

Prior to filing the present suit, on or about

April 27, 1971, respondent timely filed with the

Equal Employment Opportunity Commission (EEOC)

a CHARGE OF DISCRIMINATION as required by

Title VII [see, 42 U.S.C. §2000e-5(e)], against

petitioner, The charge of employment discrimina-

tion alleged that on February 15, 1971, respondent

had been reduced from the position f Material

Review Engineer to the lower position of Material

Review Inspector because of his Caucasian race,

On or about May 6, 1971, respondent received

notice from the EEOC that it had referred his

charge to the California Fair Employment Practice

Commission (FEPC) for its investigation, pursuant

3.

to §706(b) of Title VII. Onor about May 26, 1971,

the FEPC declined to proceed in the matter, at

which time the EEOC assumed jurisdiction,

Commencing on or about December 20, 1971,

and continuing to July 26, 1976, respondent made

numerous inquiries with the offices of the EEOC,

his United States Congressman, United States

Senator (Cranston), and the President of the .

United States, requesting each of them to determine

the status of his charge with the EEOC and to

expedite the proceedings. At no time during

this period did respondent receive any written

communication from the EEOC informing him of

the status of his charge. What information he

did receive concerning the status of his charge he

received indirectly from his Congressman,

At no time during the pendency of the EEOC

proceedings was respondent advised by his

Congressman, Senator, President or any agent

or employee of the EEOC or the FEPC that he

could bring suit against petitioner, nor was he

advised that the state statute of limitations might

operate to bar his independent right to sue in

federal court pursuant to Title VII if the EEOC

was not successful in resolving the matter,

Finally, on or about August 17, 1976,

respondent received his first written communica-

tion from the EEOC notifying him that it had not

found reasonable cause to believe that his charge

was true (hereinafter referred to as the "right to

sue letter"), In addition, the letter notified him

that (1) if he wanted to pursue his charge further,

he had the right to sue petitioner in the United States

4.

District Court in the area in which he lived within

ninety days from the receipt of that ''right to sue

letter" and (2) failure to sue within that time

period would cause his right to sue to be forfeited.

At all times prior to September, 1976,

respondent was not represented by legal counsel

in connection with his charge of discrimination

against petitioner, or in the resulting proceedings

before the EEOC and FEPC. Following respon-

dent's receipt of the "right to sue letter, '' he retained

his present counsel in September, 1976 to institute

the instant action and pursue it on his behalf,

On November 11, 1976, less than 90 days

after mailing and/or receipt of the "right to sue

letter, '' respondent filed the within action in the

United States District Court, Central District of

California, to pursue his claim of discrimination

against petitioner under the provisions of Title VII.

On December 13, 1976, petitioner filed

with that District Court a Notice of Motion to

Dismiss. The motion was heard on April 4, 1977,

before the Honorable United States District Judge

A. Andrew Hauk. The motion was granted by

Judge Hauk on the grounds that the action was not

timely filed within any applicable state statute of

limitations,

On July 19, 1978, the Court of Appeals for

the Ninth Circuit reversed the decision of the

District Court. That opinion is officially

reported at 578 F.2d 814 and a copy thereof is

set forth in Appendix A to the Petition for

Certiorari.

hs

REASONS FOR DENYING THE WRIT

{. | THE ISSUES RAISED IN THE

PETITION HAVE ALREADY

BEEN RESOLVED BY THIS

COURT IN THE RECENT

OCCIDENTAL LIFE_INS.

DECISION, 1/

A. THE OCCIDENTAL OPINION

DID NOT DISTINGUISH

BETWEEN THE IDENTITY

OF A TITLE VII LITIGANT;

THE SAME PRINCIPLES

APPLY IRRESPECTIVE OF

WHETHER THE PLAINTIFF

IS THE EEOC OR THE

COMPLAINANT.

In its petition (at pp. 18-19), petitioner

acknowledges that in the recent decision in

Occidental Life Ins. Co. of Cal. v. EEOC (1977)

432 U.S. 355, 97 S.Ct. 2447, this Court determined

that the application of state statutes of limitation

to actions brought under Title VII by the EEOC would

be inconsistent with and frustrate the underlying

policies of Title VII. Nevertheless, petitioner

attempts to distinguish the Occidental holding from

the present case on the sole ground that our case

1/

~ Occidental Life Ins. Co. of Cal. v. EEOC

(1977) 432 U.S. 355, 97 S.Ct. 2447.

6.

was brought by a private party instead of by the

EEOC. In support of this distinction, petitioner

relies exclusively on one isolated phrase in the

Occidental opinion which has little or no bearing

on this Court's decision and which is taken out of

context. According to petitioner, the critical

language in Occidental is the following sentence:

"Unlike the typical litigant against

whom a statute of limitations might

appropriately run, the EEOC is required

by law to refrain from commencing a

civil action until it has discharged its

administratige duties."’ Id. at 97 S.Ct.

2456, v,

An inherent premise in petitioner's argument

is that respondent is ''a typical litigant against whom

a statute of limitations might appropriately run,"

However, a careful reading of the entire Occidental

opinion clearly reflects that a private litigant suing

after the EEOC has completed its investigation is

no more a typical litigant than is the EEOC when it

sues following such an investigation.

The Occidental decision distinguishes between

defendants in "Title VII civil actions'' and defendants

in a ''private action" in the context of illustrating that

the former class is not prejudiced by inflexible time

limitations on instituting suit. Id. at 97 S.Ct. 2458,

This distinction was expressed as follows:

"Unlike the litigant in a private action

who may first learn of the cause against

him upon service of the complaint, the

Title VII defendant is alerted to the

"sé

possibility of an enforcement suit

within 10 days after a charge has

been filed.'' Ibid. (Emphasis added. )

When this Court is discussing the ''typical

litigant, '' it is referring to one who is not a party

to a Title VII proceeding, This is true irrespective

of whether the party is a plaintiff or defendant.

Thus, when this Court related that the EEOC was

not a typical litigant against whom a statute of

limitation might appropriately run, it was obviously

referring to any Title VII plaintiff who refrained

from filing suit until the EEOC discharged its

administrative duties.

Moreover, the Occidental opinion discloses

that the same federal policies which compel the

conclusion that employing a state statute of limita-

tions would be contrary to the purposes of Title

Vil are applicable irrespective of whether the

ultimate party commencing litigation following

an EEOC investigation is the EEOC or a private

litigant. In discussing the particular underlying

policies of the federal statute, this Court, in

Occidental (at 97 S.Ct. 2455-56), emphasized

that when Title VII was first enacted, Congress

selected cooperation and voluntary compliance as

a preferred means of achieving the stated goal of

the legislation. According to this Court's opinion,

Congress originally created the EEOC to act as

the administrative agency to achieve voluntary

compliance with Title VII prior to the time an

aggrieved party would be permitted to file a lawsuit.

The decision noted that, although the subsequent

amendment to Title VII in 1972 empowered the

EEOC to institute civil actions, Congress preserved

the administrative functions described above. This

Court then described its resulting conclusion regard-

ing the applicability of state statutes of limitation to

Title VII actions as follows (at 97 S.Ct. 2456):

"In view of the federal policy

requiring employment discrimination

claims to be investigated by the EEOC

and, whenever possible, administratively

resol: ed before suit is brought ina

federal court, it is hardly appropriate

to rely on the 'State's wisdom in setting

a limit... onthe prosecution. ...!

Johnson v. Railway Express Agency,

Supra, 421 U.S., at 464, 95 S.Ct., at

1722. For the 'State's wisdom! in

establishing a general limitation period

could not have taken into account the

decision of Congress to delay judicial

action while the EEOC performs its

administrative responsibilities.

(Citations omitted.) Indeed, the one-

year statute of limitations applied by

the District Court in this case could

under some circumstances directly

conflict with the timetable for administra-

tive action expressly established in the

1972 Act.'' (Footnote omitted, )

These same policy considerations are present

irrespective of whether the ultimate litigant is the

EEOC or a private party. If either a private

litigant or the EEOC was to initiate a lawsuit prior

to the completion by the EEOC of its administrative

functions because of the operation of a state statute

9.

of limitations, the federal policy requiring

investigation and administrative resolution by the

EEOC prior to suit will be completely frustrated.

In other words, a claimant who is pressured into

filing a suit before the EEOC has com pleted its

administrative duties to avoid the expiration of a

state limitation period will just as readily trustrate

the congressional purposes of Title VII as would

an action by the EEOC under those conditions.

B. CONGRESS DID NOT INTEND

TO REMOVE THE RIGHT OF

A PATIENT EMPLOYEE TO

SUE AFTER THE EEOC

HAS CONCLUDED ITS IN-

VESTIGATION WHEN IT

AFFORDED AN IMPATIENT

EMPLOYEE THE RIGHT TO

DEMAND A RIGHT TO SUE

LETTER FROM THE EEOC

AFTER 180 DAYS,

The contrary position advanced by petitioner

that state statutes of limitation apply to Title VII

actions by private litigants would totally negate the

meaning and impact of §706(f)(1) of Title VII.

That provision empowers a private litigant to

commence litigation within 90 days after receipt of

a right to sue letter from the EEOC following its

dismissal of the investigation. According to

petitioner, a claimant who filed his charge with

the EEOC and elected to follow the alternative

preferred py Congress of having the charge

reviewed by the EEOC would be precluded from

10,

a trial on the merits if the EEOC was unsuccessful

in resolving the charge and the state statute of

limitation had expired.

Petitioner's position would produce a result

that is directly contrary to the intent of Congress

in extending to private claimants an option to

demand a right to sue letter 180 days after the filing

of the charge although the EEOC has not concluded

its investigation. According to the Occidental

opinion, the option to demand a right to sue letter

was extended to the impatient claimant as an

alternative to waiting until the EEOC had completed

its activities; the demand of a right to sue letter

was not intended to be the required course of

action, In that regard, this Court quoted the

following language from the 1972 Congressional

Record (118 Cong. Rec. 7168, 7565):

"tThe retention of the private right

of action, as amended, ... is designed

to make sure that the person aggrieved

dees not have to endure lengthy delays

if the Commission. . . does not act

with due diligence and speed. Accord-

ingly, the provisions... allow the

person aggrieved to elect to pursue his

his or her own remedy under this title

in the courts where there is agency

inaction, dalliance or dismissal of the

charge, or unsatisfactory resolution.

"It is hoped that recourse to the

private lawsuit will be the exception and

not the rule, and that the vast majority

of complaints will be handled through

ee

the offices of the EEOC. ...

However, as the individual's right to

redress are paramount under the

provisions of Title VII it is necessary

that all avenues be left open for quick

and effective relief.'" (Footnote

omitted.) (Emphasis added.) Id.

at 97 S.Ct. 2454, ile

This quotation clearly reflects that Congress

intended to preserve the right of a private litigant

to sue after the EEOC has dismissed his charge

after its investigation. To impose an obligation

upon the claimant to sue before the EEOC has

concluded its investigation would contravene that

expressed intent as well as the congressional

desire that the exercise of the option to sue

prematurely would be the exception and not the

rule,

The logical extension of petitioner's argu-

ment would require a conclusion that Congress,

when it afforded the option to the impatient

grievant to refrain from waiting until the expira-

tion of the EEOC proceedings, took away the

right of a patient grievant to cause his claim to

be resolved finally by a judicial tribunal. If

petitioner's version is correct, an employee who

elected to follow the congressional preference of

permitting the EEOC to consider the matter fully

would be finally bound by any unsatisfactory EEOC

determination. This would be true even though

the action by the EEOC was not the product of a

full and fair evidentiary proceeding.

12.

Yet, under those same circumstances, the

employer of the patient grievant would not be so

bound and, in fact, could force the matter into

the judicial forum simply by inaction. Sucha

disparate treatment is totally contrary to the

expressed desire of the legislators that the primary

purpose of the 1972 amendments was to afford

fairness to all affected parties. This goal was

acknowledged in the very quotations set forth by

petitioner at pages 16-17 of the petition.

Dilatory tactics by the employer are

- encouraged by the impossible choice imposed upon

the employee by virtue of petitioner's position

(i.e., the choice either (1) to abandon hopes of

resolution by or assistance from the EEOC and

commence suit at great personal expense, or (2)

to abandon the right to bring suit later if the

EEOC cannot and does not resolve the matter),

The longer the employer prolonged the

administrative investigation by the EEOC, the

sooner the claimant would be forced to make this

unpleasant election. This action would increase

the possibility of causing the potential defendant

to face only an impecunious private litigant,

instead of an arm of the United States government,

the EEOC, As the committee report which

accompanied the Senate version of the 1972 amend-

ments to Title VII explained:

"This disparity between complainants

and respondents in Title VII litigation

has been recognized by the courts which

have characterized the disputes as

"modern day David and Goliath

13,

confrontation[s].' In such situations,

the public has an overriding interest

in protecting the individual from the

denial of those rights which Congress

has specifically provided. (Footnote

omitted.)"' S, Rep. No, 92-415,

92 D. Congress, Ist Sess., at 17 (1971).

Furthermore, federal courts have long

recognized that the administrative procedures

enunciated in Title VII are designed so that an

individual with a claim of employment discrimina-

tion need not seek the advice of an attorney.

See, e.g., Mahroom v. Hook (9th Cir, 1977)

563 F,2d 1369, Davis v. Valley Distributing Co.

(9th Cir, 1975) 522 F.2d 827, 831. The applica-

tion of the position asserted by petitioner would

require the employee to obtain legal counsel at

the earliest possible date so that the individual

can make the impossible decision as intelligently

as possible. Infact, the employee would need

legal assistance at the initial administrative stages

to provide advice as to the duration of the applic-

able state statutes of limitations, and any related

matters such as tolling, etc. In such an event,

there would be total frustration of the broad

structure and purpose of Title VII, as established

by Congress,which "relies upon laymen operating

without legal assistance, to initiate both administra-

tive complaints and lawsuits.'' Mahroom v. Hook,

supra,

As we will illustrate in a subsequent argument

(infra, at pp. 23-25), a potential defendant will not be

treated unfairly by this Court's extension of the

Occidental hoiding io a Title VII action that is

14,

maintained by a private litigant. We will show that,

in Occidental, this Court directly faced this issue

and specifically stated that where a defendant is

significantly handicapped by an inordinate EEOC

delay, or is otherwise prejudiced by a grievant's

unexcused conduct, the trial court may restrict

or even deny back pay relief.

In other words, a federal court has the power

to afford protection to a defendant who is unfairly

prejudiced. However, a private litigant who has

suffered because of an EEOC delay, for example,

could not be rescued by the federal court if the

delay caused him/her to refrain from filing suit

until after any applicable period of limitations has

expired, Clearly, the need for fairness deeply

appreciated by the senators upon whose statements

petitioner relies dictates that Occidental be extended

to all Title VII actions, irrespective of the identity

of the plaintiff.

Finally, if the position advocated by petitioner

were implemented, there would be absolute no

advantage for a claimant to place his fate in the

hands of the EEOC where the best he could do,

absent a compromise, would be to have his judicial

remedy pursued by the EEOC instead of himself,

If the EEOC were not so inclined, the claimant

would be barred forever from pursuing his own

judicial remedies. Thus, the only logical course

of action for a claimant to pursue would be to

exercise his option to demand a right to sue letter

so as to avoid forfeiture of any right to utlize the

judicial process and secure a full and fair

adjudication on the merits.

15,

Such a result would be directly contrary to

the congressional expression which this Court

described as the "final and conclusive confirma-

tion of the meaning of Section 706(f)(1)"':

"It is hoped that recourse to the

private lawsuit will be the exception

and not the rule, and that the vast

majority of complaints will be handled

through the offices of the EEOC,"

Id., at 97S.Ct, 2454,

The same policy considerations relied upon

by the Supreme Court in Occidental in support of

the conclusion that state periods of limitation

should not be used to frustrate the expressed

purpose of Congress in encouraging full and

complete action by the EEOC are equally applicable

to our situation. There is absolutely no logical

basis for distinguishing between the identify if the

party filing suit (i.e., EEOC or grievant) where

the grievant has elected to refrain from suing

prematurely in order to permit the EEOC to

investigate the matter fully and make all efforts

to attempt to resolve the problem administratively.

In either case, the same federal policies will be

advanced if state statutes of limitations are not

applied, |

16,

c OCCIDENTAL HAS ALREADY

ESTABLISHED THAT TITLE

VII CONTAINS ITS OWN

PERIOD OF LIMITATIONS;

HENCE AN OVERALL

LIMITATIONS PERIOD IS

NOT REQUIRED.

Petitioner orgues (at p. 8) that the time limita-

tions set forth in Title VII do not establish an

overall period of limitations. Assuming, arguendo,

that petitioner's analysis is accurate, we fail to

perceive the necessity for such an argument, In

other words, petitioner has failed to establish

that it is essential that every right to sue be

governed by "an overall period of limitations. "'

To the contrary, the most ready response

to petitioner's argument is that in Occidental this

Court has just held that the EEOC may bring an

action under Title VII without being bound by any

"overall period of limitations, "

The Occidental decision acknowledges

(at 97 S.Ct, 2457) that Congress did reflect

concern for the need of certain time limitations

iu the fair operation of the Act, The opinion

emphasized, however, that this concern was

directed exclusively to the initial filing of a

charge with the EEOC and prompt notification

thereafter to the alleged violator, This Court

illustrated (at 97S, Ct. 2457) that the congres-

sional intent was clear that ''the statue of

limitations problem was perceived in terms of

these provisions rather than in terms of a later

17.

limitation'' on the power to sue. Asa result,

the opinion concluded:

"The fact that the only

statute of limitations discussions

in Congress were directed to the

period preceding the filing of an

initial charge is wholly consistent with

the Act's overall enforcement structure --

a sequential series of steps beginning

with the filing of a charge with the

EEOC. Within this procedural frame-

work, the benchmark, for purposes

of a statute of limitations, is not the

last phase of the multistage scheme,

but the commencement of the proceeding

before the administrative body." Id.,

at 97 S.Ct. 2457-58, ac

Again, the same concern is applicable

irrespective of whether the ultimate civil action

after the EEOC has concluded its investigation

is to be filed by the EEOC or the grievant. These

periods of limitation relating to the commencement

of the proceeding before the EEOC apply equally

to either situation. Failure to comply bars suit

by either party.

In support of its position, petitioner relies

upon certain language in the case of Johnson v.

Railway Express Agency, Inc. (1975) 421 U.S.

454, 95 S.Ct. 1716. However, a careful reading

of Johnson reflects that there was no mention of the

phrase ''overall period of limitations, "’ let alone

any determination that, absent its presence ina

federal law, a state statute of limitations must

18,

always apply. To the contrary, Johnson merely

held that, with respect to an action brought under

42 U.S.C. §1981, a state statute of limitations

would be applied because (1) that Act does not

contain any period of limitations whatsoever, and

(2) there is no underlying federal policy that would

be contravened by the application of a state statute

of limitations. This Court emphasized that an

action brought under §1981 is completely separate

and independent from a Title VII action, It also

related that there was no legislative policy in favor

of encouraging investigation of complaints of §1981

violations by the EEOC and resulting attempts at

conciliation, as follows:

"We are satisfied, also, that

Congress did not expect that a §1981

court action usually would be resorted

to only upon completion of Title VII

procedures and the Commission's

effect to obtain voluntary compliance, "'

Id., at 421 U.S. 461, 95S,Ct. 1720.

Johnson indicated that, because these two

actions were separate and apart, it was not unfair

or unreasonable for an employee who elects to

present his case for full consideration by the

EEOC pursuant to Title VII to accept the attendant

risk that any time delays would result in a

forfeiture of his §1981 action. However, to carry

that conclusion one step further to deprive him of

his cause of action under Title VII is a matter

totally removed from the consideration set forth

in Johnson and directly contrary to the holding

in Occidental.

19,

II THE ASSERTED EVILS RESULT-

ING FROM THE DECISION

OF THE COURT OF APPEALS

EITHER (1) MUST BE PRE-

SENTED TO CONGRESS FOR

REMEDY OR (2) HAVE ALREADY

BEEN ADDRESSED BY THE

OCCIDENTAL OPINION,

In its petition (at pp. 5-8), petitioner devotes

much effort attempting to illustrate the inefficiency

of the EEOC and the resulting backlog of cases.

Petitioner argues that, unless this Court imposes

an overall period of limitations restricting the

time within which a private litigant can seek judicial

relief, Federal District Courts will be inundated

with "'stale'' claims. Petitioner also recites policy

considerations in furtherance of sound employer-

employee relations (at pp. 12-13) which would be

thwarted if this Court did not impose a specific

overall period of limitations. Finally, the petition

contends (at pp. 13-18) that, if the decision of the

Ninth Circuit Court of Appeals is permitted to stand,

all parties will be denied a fair trial because of the

loss of evidence through witnesses becoming

unavailable and memories dimming, etc.

A, PETITIONER'S CONCERNS

MUST BE ADDRESSED

TO CONGRESS

Our initial response is that these matters

are appropriately the subject of legislative

20,

consideration, and are not properly addressed to

this Court. The appropriate means for avoiding

these evils or promoting the policies sought to be

advanced by petitioner would be to secure through

Congress an amendment to Title VII inserting a

prescribed period of limitations to govern those

situations. However, petitioner seeks to

accomplish those objectives through a decision

of this Court which has the effect of denying to

respondent the opportunity to pursue his claim

of discrimination, even though respondent

proceeded with extreme diligence throughout

this entire proceeding. Such a procedure would

be totally foreign to well established principles of

jurisprudence as enunciated repeatedly by the

opinions of this Court. See, e.g., Blount v. Rizzi

(1971) 400 U.S. 410, 419, 91 S.Ct. 423, 429.

B. THE OCCIDENTAL OPINION

HAS ALREADY CONSIDERED

AND DISPOSED OF THE

CONCERNS EXPRESSED BY

PETITIONER.

Secondly, petitioner's concerns were addressed

by this Court in the Occidental opinion. As we noted

earlier, the Occidental decision emphasizes that the

strong preference of Congress was to secure

administrative resoltuion of claims. The opinion

also reflects that the Legislature demonstrated an

awareness of the time lags involved in the EEOC

proceedings but nevertheless substantially increased

the workload of the agency by the 1972 amendments.

Occidental Life Ins. Co. of Cal. v. EEOC, supra,

21.

97 S.Ct. 2457. This Court concluded that it would

not be reasonable to assume that, with that state

of mind, Congress would have granted to the EEOC

additional enforcement responsibilities while limiting

the time within which federal lawsuits could be

commenced by claimants who were.dissatisfied with

EEOC action, Ibid.

In other words, in Occidental, this Court

determined that it would be totally inconsistent for

Congress, on the one hand, to talk about the strong

desire to secure administrative disposition of claims

and avoid judicial proceedings and yet, on the other

hand, to force claimants to go to court by increasing

the workload of the EEOC to such an extent that, as

a practical matter, it could not resolve the claims

within the 180 day period. This Court reconciled

those considerations by the only logical conclusion:

i.e., the option to demand a right to sue letter

after 180 days and, thereafter, to commence suit

within 90 days of receipt of that letter, was simply

an additional available course of action, not the

only opportunity to sue.

In fact, as we noted in our previous argument

(at p. 16), it is petitioner's position that a require-

ment that an election to sue must be made after

180 days will serve to congest federal courts.

Circuit Judge Hufstedler, in her concurring opinion,

and particularly in footnote 9 (at pp. 24-25 of Ap-

pendix A to the Petition), illustrates that petitioner's

arguments will contravene the recognized goal of

administrative resolution of claims by the EEOC.

Petitioner's other concerns regarding the

potential depr:vaiion of a fair trial to the employer

22.

were also specifically addressed in Occidental, as

follows (at 97 S.Ct. 2458):

"The absence of inflexible time

limitations on the brining of lawsuits

will not, as the company asserts,

deprive defendants in Title VII civil

actions of fundamental fairness or

subject them to the surprise and

prejudice that can result from the

prosecution of stale claims. Unlike

the litigant in a private action who may

first learn of the cause against him

upon service of the complaint, the

Title VII defendant is alerted to the

possibility of an enforcement suit

within 10 days after a charge has been

filed. This prompt notice serves, as

Congress intended, to give him an

opportunity to gather and preserve

evidence in anticipation of a court

action.

"Moreover, during the pendency

of EEOC administrative proceedings,

a potential defendant is kept informed

of the progress of the action. Regula-

tions promulgated by the EEOC require

that the charged party be promptly

notified when a determination of reason-

able cause has been made, (footnote

and citations omitted), and when the

EEOC has terminated its efforts to

conciliate a dispute, (citation omitted),

23.

"It is, of course, possible that thereafter to sue are unlimited, such intent

despite these procedural protections a necessarily allows the situation where only

defendant in a Title VII enforcement the investigation is without any time restrictions.

action might still be significantly

handicapped in making his defense

because of an inordinate EEOC delay Ill ANY APPLICABLE STATUTE

in filing the action after exhausting its LIMITATIONS WAS TOLLED

conciliation efforts. If such cases DURING THE PENDENCY OF

arise the federal courts do not lack the THE PROCEEDINGS BEFORE

power to provide relief. This Court THE EEOC.

has said that when a Title VII defendant

is in fact prejudiced by a private plain-

tiff's unexcused conduct of a particular A. FEDERAL POLICY

case, the trial court may restrict or CONSIDERATIONS DO

even deny backpay relief."' (Citation NOT PRECLUDE THE

omitted) (Emphasis added). TOLLING OF ANY APPLIC-

ABLE PERIOD OF LIMITA-

Naturally, the same protections afforded to TIONS WHILE THE EEOC

Title VII defendants in actions by the EEOC are , PROCEEDINGS WERE

likewise present when the claimant sues. In PENDING.

fact, greater protection is provided the potential

defendant in cases where the EEOC dismisses the

charge and places the decision to commence suit Apparently, petitioner has abandoned the

in the hands of the private complainant. Once argument strongly asserted before the Ninth

the complainant is notified that the EEOC has Circuit Court of Appeals that, under the principles

dismissed the charge, the suit must be brought of both federal and California law, any applicable

within 90 days. On the other hand, if the EEOC state statute of limitations was not tolled while

elects to bring suit, Title VII imposes no time the EEOC possessed jurisdiction over respondent's

restrictions. If this Court can determine that claim. Instead, petitioner now argues that

the open-ended situation where the EEOC is the overall considerations of federal policy should

plaintiff is consistent with underlying federal operate to preclude the operation of the applicable

policies, certainly the former state of affairs which "tolling principles.'' The basis for petitioner's

limits to 90 days the right of a private litigant to contention is that, unless such policy considerations

sue is tolerable. In other words, if congressional are applied, there would be no "overall period of

intent permits the circumstance where the duration limitations, '' as there would be no restriction on

of both the EEOC investigation and its right the length of time which the EEOC could maintain

jurisdiction,

24. ’ 25.

In response, we must again emphasize that

these asserted policy factors were considered by

this Court in Occidental. Nevertheless, the court

determined that it would permit the institution of

a Title VII suit in federal court following the

completion of the EEOC proceedings, irrespective

of the fact that there were no prohibitions limiting

the duration of those proceedings and the litigation

was commenced well after the expiration of any

potential state statute oflimitations. We have

illustrated in our earlier arguments, at great

length, that the identical rationale and overriding

policy considerations relied upon by this Court are

equally applicable to our situations, where the

only difference is the identity of the plaintiff,

Accordingly, those federal policy considerations

asserted by petitioner are outweighed by those

more significant countervailing factors relied

upon by this Court in Occidental. Hence, they

cannot operate to remove the application of any

"tolling principles" that would preserve the sanctity

of the EEOC proceedings and accomplish the desired

goal of encouraging administrative resolution of

disputes,

B. PRINCIPLES OF FEDERAL

LAW REQUIRE THAT ANY

APPLICABLE STATUTE OF

LIMITATIONS BE TOLLED

WHILE THE EEOC HAS

JURISDICTION,

Petitioner again seeks support from this

Court's decision in Johnson v. Railway Express

26.

Agency, supra. In Johnson, this Court related

that federal law and policy did not require that a

§1981 action be tolled during the pendency of

EEOC proceedings. However, that holding was

not intended to extend, and should not be extended,

to any and all federal civil rights suits.

In Johnson, this Court distinguished two

cases cited in support of the proposition that any

state statute of limitations governing the time

within which a §1981 action shall be brought must

be tolled during the pendency of EEOC proceedings:

{American Pipe & Construction Co. v. Utah (1974)

414 U.S. 538, 94 S.Ct. 756, and Burneit v.

New York Centrai R. Co. (1965) 380 U.S. 424,

85 S.Ct. 1050.] In that connection, the court

made the following pronouncement (at 411 U.S.

467, 95 S.Ct. 1723-24):

"Finally, and perhaps most importantly,

the tolling effect given to the timely

prior filings in American Pipe and

in Burnett depended heavily on the

fact that those filings involved exactly

the same cause of action subsequently

asserted. This factor was more than

a mere abstract or theoretical considera-

tion beccause the prior filing in each

case necessarily operated to avoid the

evil against which the statute of limita-

tions was designed to protect,14/"

Footnote 14 to the Johnson opinion (at 421

U.S. 467, 95 S.Ct. 1724), reflects that at that

time this Court was unsure whether a Title VII

charge before the EEOC afforded the employer

27.

' Unlike the litigant in a private

action who may first learn of the

cause against him upon service of

the complaint, the Title VII defen-

dant is alerted to the possibility of

an enforcement suit within 10 days

after a charge has been filed, This

prompt notice serves, as Congress

intended, to give him an opportunity

to gather and preserve evidence in

anticipation of a court action,

with the protection against loss of evidence, the

disappearance and fading memories of witnesses

and any unfair surprise that could regult from a ;

sudden revival of a claim that long has been allowed

to slumber. The opinion indicated;

"Only where there is complete identity

of the causes of action will the protec-

tions suggested by petitioner necessarily

exist and will the courts have an

opportunity to assess the influence of

the policy of repose inherent in a

limitation period." Ibid. "Moreover, during the pendency

of EEOC administrative proceedings,

a potential defendant is kept informed

of the progress of the action, Regula-

tions promulgated by the EEOC

require that the charged party be

promptly notified when a determina-

tion of reasonable cause has been

made, (footnote omitted and citations

omitted), and when the EEOC has

terminated its efforts to conciliate a

dispute (citation omitted), "'

In our case, the prior filing by respondent

with the EEOC, pursuant to Title VII, involves .

exactly the identical cause of action being asserted

in this Title VII suit. Moreover, as we noted in

an earlier argument, Occidental resolved any °

uncertainty that might have existed when Johnson

was decided regarding the protection afforded a

party against whom a Title VII charge with the

EEOC has been filed. In that regard, this Court

stressed that such a prior filing with the EEOC

necessarily operated to avoid any evil against

which the statute of limitations wags designed to

protect, as follows (at 79 S.Ct. 2458);

Accordingly, this Court must rreject any

contention that Johnson holds that any applicable

state statute of limitations shall not be tolled during

the pendency of the EEOC proceedings. To the

contrary, if a state period of limitations were,

for some reason, held to apply to our proceeding,

an application of principles of federal law requires

that any such statute of limitations be tolled during

the pendency of the EEOC proceedings. American

Pipe & Construction Co, v, Utah, supra; Burnett

v. New York Central R. Co,, supra,

"The absence of inflexible

time limitations on the bringing of

lawsuits will not, as the company

asserts, deprive defendants in Title

VII civil actions of fundamental fair-

ness or subject them to the surprise

and prejudice that can result from

the prosecution of stale claims,

28. 29,

The Circuit Courts of Appeal have tolled

state statutes of limitations in claims under

Title VII for back pay, Prior to 1972, Title VII

contained no limitations period respecting an award

of back pay, Federal courts therefore borrowed

the most applicable state statute of limitations,

However, the courts calculated the limitations

period for back pay from the date of the filing of

a claim with the EEOC rather than from the date

of the judicial complaint, The rationale behind

this course was that the filing of the EEOC claim

tolled the limitations period and that it remained

tolled during such time as the processes of

agency reconciliation are at work and until

notification to the complainant that voluntary

compliance cannot be obtained,'' Franks v. Bowman

Transportation Co, (5th Cir, 1974) 495 F,2d 398,

405, cert, denied, 419 U.S, 1050 (1974); see

also, Johnson v, Goodyear Tire & Rubber Co,

(Sth Cir, 1974) 491 F,2d 1364, 1378; United States

ve Georgis Power Co, (5th Cir, 1973) 474 F.2d

Title VII limitations themselves have been

tolled by the Circuit Courts of Appeal on the

ground that since the statute requires recourse

to the EEOC prior to suit, victims of discrimina-

tion should hot be penalized because of EEOC

delays and errors over which they have no control,

See, Choate v, Caterpiller Tractor Company (7th

Cir, 1968) 402 F.2d aT, and Gates yv, Georgia

Pacific Corp, (9th Cir, 1974) 492 F,2d 292, 295,

The time limitations of Title VII have also been

tolled where delay is attributable to non-EEOC

parts of the federal government, See, Harris vy,

Wallgreens Distribution Center (6th Cir, 1972)

30,

456 F,2d 588, 592; Harris v, National TCO,

(7th Cir, 1971) 454 F,2d 307, 312,

C, IF A STATE STATUTE OF

LIMITATIONS IS TO BE

BORROWED, THAT STATE'S

LAW AS TO THE TOLLING

OF THE STATUTE MUST

ALSO BE APPLIED,

In Johnson, this Court noted (at 421 U.S,

464-65, 05 5, Ct, 1721-22) that, in determining

the circumstances under which any applicable

state period of limitations is tolled or suspended,

the law of the state in question on this issue

should be followed absent conflicting federal policy

considerations, In that regard, the opinion stated

(at 421 U.S, 464-65, 95 §,Ct, 1722);

In virtually all statutes of limitations

the chronological length of the limita-

tion period is inter-related with

provisions regarding tolling, revival,

and questions of application, In

borrowing a state period of limitation

for application to a federal cause of

action, a federal court is relyin on

the state's wisdom in setting a limit,

and exceptions thereto, on a prosecu-

tion of a closely analogous claim,"’

(Emphasis added, )

Barney v. Oerlrichs (1891) 138 U.S, 529,

530-1, 11 5.Ct. 414, 34 L.Ed, 1037 involved an

31,

action to recover excess fees and charges paid by

the plaintiff on imported merchandise. This Court

applied New York's six year statute of limitations

for actions against tax collectors; at the same time,

the court also applied New York's law requiring

the tolling of the statute of limitations during any

period that the debtor is absent and resides out of

the state.

Thus, if this Court determines that the most

appropriate state statute of limitations applies to a

Title VII claim by a private litigant, it must also

borrow the laws of California regarding the tolling

of statutes of limitations.

D. UNDER CALIFORNIA LAW,

A STATUTE OF LIMITATIONS

MUST BE TOLLED WHILE

ADMINISTRATIVE REMEDIES

ARE BEING PURSUED,

Under California law, a statute of limitations

as to a civil suit is tolled during the pendency of

any administrative proceeding which is a pre-

requisite to the filing of the action. Elkins v.

Derby (1974) 12 Cal.3d 419, 115 Cal. Rptr. 641.

In Elkins, a personal injury action was commenced

beyond the one-year period of limitations set forth

in §340(3) of the California Code of Civil Procedure,

During the interim, the plaintiff had been exhaust-

ing his administrative remedies under the State

Worker's Compensation laws. In reversing the

trial court's ruling dismissing the action because

32.

it was barred by the one-year statute of limita-

tions, the California Supreme Court held that the

action was tolled for the period during which the

plaintiff pursued his Worker's Compensation

remedy.

In reaching that conclusion, the court made

the following pertinent observations (at 12 Cal. 3d

414, 115 Cal. Rptr. 643-44):

"It has long been settled in this

and other jurisdictions that whenever

the exhaustion of administrative remedies

is a prerequisite to the initiation of a

civil action, the running of the limita-

tions period is tolled during the time

consumed by the administrative

proceeding. ... (Citations)

' A] line of relatively recent

California cases... points toward

the principle that regardless of whether

the exhaustion of one remedy is a

prerequisite to the pursuit of another,

if the defendant is not prejudiced

thereby, the running of the limitations

period is tolled '[w]hen an injured

person has several legal remedies

and, reasonably and in good faith,

pursues one,'"’

Campbell v. Graham-Armstrong (1973)

9 Cal, 3d 482, 107 Cal. Rptr. 777 involved an

action against a school district. The California

Supreme Court indicated that the running of the

statute of limitations was suspended when the

33,

plaintiffs began to exhaust their adminstrative

remedy by filing a claim with the governing board

of the school district. (However, the court held

that because the plaintiffs had failed to raise that

theory in the trial court, they were barred from

asserting the argument on appeal. )

In discussing the tolling issue, the court

made the following statement (at 9 Cal, 3d 490,

107 Cal. Rptr. 782):

"The exhaustion of administra-

tive remedies will suspend the statute

of limitations even though no statute

makes it a condition of the right to sue.

(Citations) .. . When an injured

person has several legal remedies,

and, reasonably and in good faith,

pursues one designed to lessen the

extent of the injuries or damages,

the statute of limitations does not

run on the other while he is thus

pursuing the one. (Citations)"’

Respondent acted in good faith and reason-

ably in pursuing patiently and diligently his

administrative remedies with the EEOC before

bringing suit. During the pendency of the EEOC

proceedings he initiated numerous written and

telephonic contracts with the offices of the EEOC, |

the President of the United States, Senator

Cranston, and his Congressman, At no time

during those communications was he ever advised

that he could institute a civil action during the

pendency of the EEOC proceedings, or that

California statutes of limitations might apply to

34,

bar a subsequent civil action in the federal courts,

In fact, it was not until August 5, 1976 that respon-

dent first learned (from Senator Cranston, not the

EEOC), that he could request the EEOC to issue a

right to sue letter which would allow him to sue

in federal court.

Respondent received his first written

response to his charge from the EEOC on August 17,

1976, At that time, he was advised that his charge

was being dismissed and that he had 90 days in which

to commence a civil action in the United States

District Court on the allegations contained in his

charge. He then proceeded, for the first time, to

obtain legal counsel so that such action could be

initiated.

From this discussion it is apparent that if

California law as to statutes of limitation is to be

applied in this case, any applicable state statute of

limitations must be tolled for the entire period that

the matter was in the hands of the EEOC,

IV THE DECISION OF THE COURT

OF APPEALS IS IN ACCORD

WITH THE ONLY OTHER

CIRCUIT COURT OF APPEALS'!

DETERMINATION REGARD-

ING THIS ISSUE.

Finally, it should be emphasized that the

decision below of the Ninth Circuit Court of Appeals

does not conflict with any decision of any other

Circuit Court of Appeals. Infact, only one other

35,

Circuit Court of Appeals has faced the issue

presented herein; the Sixth Circuit in Draper

v. United States Pipe & Foundry Co. (6th Cir.

1976) 527 F.2d 515, 522,

Draper acknowledged that, prior to the 1972

amendments, state statutes of limitations were

employed for the limited purpose of ascertaining

the maximum period for which an individual could

recover back pay. The Court held that, follow-

ing the 1972 amendments, state statutes of limita-

tions were no longer relevant even for this limited

purpose. The opinion took extreme pains to

emphasize that at no time did the state law apply

to determine the timeliness of the institution

of a Title VII action by stating (at page 522):

"Title VII provides specific time

periods for the filing of a charge with

the EEOC and for commencing a

civil action after receipt of the right

to sue letter (42 U.S.C. §2000e-5

(3)(f)). Title VII establishes its own

statutes of limitations, and state law

is irrelevant in determining whether

a private individual has lost his right

of action under Title VII through the

passage of time. (Citations omitted)

The record on the stipulations of the

parties disclosed that Draper complied

with the procedural requirements of

Title VIlandhis suit is not time barred. "'

(Emphasis added. )

As a result of the foregoing, there are no

conflicting decisions of the various Circuit Courts

36,

of Appeal that need be reconciled by this Court.

To the contrary, the existing decisions of the

Circuit Courts, and particularly the decision in

this case, thoroughly discuss all of the pertinent

issues and succinctly recite the applicable principles

of law.

Ve CONCLUSION

For the reasons set forth above, it is

respectfully requested that this Court deny the

Petition for Certiorari and, thereby, support the

decision of the Ninth Circuit Court of Appeals.

Dated: November 8, 1978.

Respectfully submitted,

STEPHEN H. SILVER

GEORGE W. SHAFFER, JR. of

SILVER, WELLS & KREISLER

Attorneys for Respondent

37.