Jurisdictional Statement — Feeney v. Personnel Administrator of Massachusetts

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Eupreme Court, U.&,.

FILE

| D

In the DEC 18 1979

Supreme Court of the UnitediStatege:, ocr

Ocroser TERM, 1979.

No. 49-953

HELEN B. FEENEY,

APPELLANT,

PERSONNEL ADMINISTRATOR OF THE

COMMONWEALTH OF MASSACHUSETTS er At.,

APPELLEES.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS.

Jurisdictional Statement.

RicHARD P. Warp,

ELEANOR D. ACHESON,

JouNn H. Mason,

Ropes & Gray,

225 Franklin Street,

Boston, Massachusetts 02110.

(617) 423-6100

JoHN REINSTEIN,

Massachusetts Civil Liberties,

Union Foundation,

47 Winter Street,

Boston, Massachusetts 02108.

(617) 482-3170

BATEMAN & SLADE, INC. BOSTON , MASSACHUSETTS

Table of Contents.

Opinions below

Jurisdiction

Statute involved

Question presented

Statement of the case

The question presented is substantial

I. Introductim

II. Under the circumstances, the district

_ court erroneously presumed that it had

discretion not to decide plaintiff's

due process claim

III. The district court erroneously as-

sumed that this Court's prior decisimm

somehow gave it authority to ignore and

not fully consider the undecided claim

IV. The reasons advanced for failing to

decide fully the due process claim are

patently insufficient to justify the

district court's actions

Conclusion

Appendix A: Judgment of the United States

District Court for the District of Massa-

chusetts

Appendix B: Memorandum and order of the

United States District Court for the

District of Massachusetts

Appendix C: Plaintiff's notice of appeal

2la

ii Table of Authorities Cited

Table of Authorities Cited.

Cases.

Anthony v. Commonwealth of Massachusetts,

415 F.Supp. 485 (D. Mass. 1976)

Feeney v. Cammonwealth of Massachusetts,

451 F.Supp. 143 (D. Mass. 1978)

Feeney v. Cammonwealth of Massachusetts,

475 F.Supp. 109 (D. Mass. 1979)

ae 7?

3, 9, 10

2, 13, 15, 2l,

22, 23, 24

Florida Lime and Avocado Growers v. Jacob-

sen, 362 U.S. 73 (1960)

Hampton v. Mow Sun Wong, 426 U.S. 88 (1976)

International Distributing Corp. v. Ameri-

can District Telegraph Co., 569 F.2d

136 (D.C. Cir. I977)

Janke Construction Co. v. Vulcan Materials

Co., 527 F.2d 772 (7th Cir. 1976)

Jenkins v. Fidelity Bank, 365 F.Supp. 1391

(E.D. Pa. 1973)

Massachusetts v. Feeney, 434 U.S. 884 (1977)

Massachusetts Board of Retirement v. Murgia,

427 U.S. 307 (1976)

Moore v. East Cleveland, 431 U.S. 494 (1977)

Mutual Life Insurance Co. v. Hill, 193 U.S.

551 (1904)

9, 12

Table of Authorities Cited

Paul v. United States, 371 U.S. 245 (1963)

PDIC Owners Association v. Coachella Valley

Cty., Water, 443 F.Supp. 338 (C.D. Cal.

1978)

Personnel Administrator of Massachusetts v.

Feeney, —U.S.--, 99 S.Ct. 2282 (1979) 2, 4, 11,

Rohler v. TRW, Inc., 576 F.2d 1260 (7th

Cir. 1978)

Sessions v. Chrysler Corp., 517 F.2d 759

(9th Cir. 1975)

Sherwin v. Welch, 319 F.2d 729 (D.C. Cir.

1963)

United States v. Georgia Public Service

Commission, 371 U.S. 285 (1963)

Washington v. Davis, 426 U.S. 229 (1976)

12, 21

8, 9

Constitutional and Statutory Provisions.

United States Constitution, Fourteenth

Amendment

Due Process Clause

Equal Protection Clause

5, 7, 8, 12

3, 5, 7, 8, 9, ll,

12 et seq.

3, 7, 8, 10, 11, 20,

21 et seq.

iv Table of Authorities Cited

28 U.S.C.

§ 1253 3, 4

§ 1331 3

§ 1343 (3) 3

§ 2201 3

§ 2281 3

§ 2284 3

42 U.S.C. § 1983 3, 5

Mass. Gen. Laws c. 31

§ 23 4

§ 26 4,5

Miscellaneous.

Federal Rules of Civil Procedure

Rule 8 17

Rule 15 18

Rule 54(c) 18

5 C. Wright and A. Miller, Federal

Practice and Procedure (1969 ed.) 17

IN ‘THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

HELEN B. FEENEY,

Appellant,

Vv.

PERSONNEL ADMINISTRATOR OF THE COMMONWEALTH OF

MASSACHUSETTS, et al.,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF MASSACHUSETTS

JURISDICTIONAL STATEMENT.

Helen B. Feeney submits this statement in

support of her contention that a final judgment of

the United States District Court for the District

of Massachusetts should be summarily reversed and

remanded for consideration of an adequately pleaded

claim which the district court has refused to con-

sider and on which it has refused to render any

judgment or opinion. In the alternative, the

appellant submits that the refusal by a district

court to hear and decide a claim properly before

it raises substantial questions such that plenary

consideration by this Court is warranted.

Mrs. Feeney contends that the three-judge

district court (over the vigorous dissent of one

of the judges) erroneously presumed that it had

discretion to fail tc consider and decide her claim

that the absolute veterans preference statute vio-

lates her right to due process of law by arbitrarily

denying to her an important interest in liberty.

This case has previously been before this Court

and the judgment of the district court from which

Mrs. Feeney is appealing was entered on August 23,

1979 after a previous judgment had been reversed

and remanded by this Court for “proceedings consis-

tent with this opinion." Personnel Administrator

of Massachusetts v. Feeney, --U.S. at --, 99 S.Ct.

at 2297 (U.S. 1979). Rather than conduct further

proceedings the district court refused to consider

and decide the plaintiff's remaining claim that

the absolute veterans preference statute because

of its wholesale deprivation of access to public

employment denies her an important interest in

liberty protected by the Due Process Clause. The

Judgment of the district court and its Memorandum

and Order and the Dissenting Opinion, which are

published at 475 F.Supp. 109 (1979), are reproduced

as an appendix to this statement (App. A and B).

The two prior opinions of the district court

are published at 415 F.Supp. 485 (Sub. nom. Anthony

v. Commonwealth of Massachusetts) and at 451 F.Supp.

143,

Jurisdiction.

This is a direct appeal under 28 U.S.C. §1253

from a final judgment of a three-judge district

court in the United States District Court for the

District of Massachusetts. The three-judge tribunal

. was convened pursuant to 28 U.S.C. §§2281 and 2284

upon the application of Helen B, Feeney, plaintiff-

appellant, for a permanent injunction to restrain

the enforcement, operation and execution of the

Massachusetts statute granting an absolute and

permanent preference to veterans in its public employ-

ment system. Mrs. Feeney brought her action pursuant

to 28 U.S.C. §§1331, 1343(3), 42 U.S.C. §1983, and

28 U.S.C. §2201, claiming that the Massachusetts

veterans preference statute was invalid under the

Equal Protection Clause and under the Due Process

Clause of the Fourteenth Amendment to the Constitu-

tion of the United States.

The final judgment in favor of the defendants

on Mrs. Feeney's complaint was entered in the dis-

trict court on August 23, 1979. Mrs. Feeney filed

in the district court a Notice of Appeal to this

4 5

Court on October 19, 1979. A copy of this Notice of certification prescribed by the

of Appeal is reproduced as Appendix C to this roe:

statement. | Question Presented.

Jurisdiction of this Court is conferred by Did the district court err in refusing to

28 U.S.C. §1253. Cases believed to sustain juris- consider and to decide plaintiff's claim that the

diction are: Personnel Administrator of Massachu- Absolute Veterans Preference Statute, Mass. Gen.

setts V. Dees SS Oe eee ee Laws c. 31, §26, by its wholesale denial of access

chusetts Board of Retirement v. Murgia, 427 U.S. 307 to public employment deprives her of liberty without

(1976) ; United States v. Georgia Public Service Com- due process of law in violation of the Due Process

mission, 371 U.S. 285 (1963); Paul v. United States, Claes Of the Surtbenth Meenen?

371 U.S. 245 (1963); Florida Lime and Avocado

Growers v. Jacobsen, 362 U.S. 73 (1960).

Statement of the Case.

This action was commenced by Helen B. Feeney,

the appellant here, on May 20, 1975 by the filing

Statute Involved.

The Massachusetts absolute veterans preference of a camplaint in the United States District Court

statute, presently codified at Mass. Gen. Laws, c. for the District of Massachusetts under 42 U.S.C.

31, §26, but referred to in previous opinions at §1983. Her complaint alleged that the plaintiff,

Mass. Gen. Laws c. 31, §23, provides as follows: a female and a non-veteran, was deprived of her

"The names of persons who pass .

inations for original appoin i right both to equal protection of the laws and to

any position in the official service shall due process of law under the Fourteenth Amendment

be placed upon the eligible lists in the .

follow: fer: (1) Disabled veterans, by a state statute that provided an absolute

in the order of their respective standings; ! preference for veterans.* The present defendants

(2) veterans, in the order of their respec-

tive standings; (3) widows or widowed

mothers of veterans who were killed in

action or died from a service connected

disability incurred in wartime service,

*The complaint detailed all the relevant facts

including how the statute granted an absolute pre-

ference to veterans such that it systematically

deprived the plaintiff and others, the majority of

in the order of their respective standings; ; units , of any pain 4 ity to

(4) all others in the order of their res- odiseihin’ ad rige ‘oa, ae Oppor Guns EY

Live stenfions. ipt of a tain Clvl service j . After these extensive

<r factual pleadings the plaintiff in her Count I

requisition, names shall be certified

fram such lists according to the method alleged as follows:

are the Personnel Administrator of the Commonwealth

of Massachusetts and the members of the Civil

Service Conmission.

Mrs. Feeney's action was consolidated with a

previously filed action challenging the same

statutory scheme. The parties submitted a lengthy

statement of facts with documentary exhibits

describing in detail the operation of the absolute

veterans preference statute within that system and

its effect in systematically excluding from meaning-

ful consideration all non-veteran applicants, the

vast majority of whom are also women. In addition,

both parties submitted lengthy briefs. The

plaintiff's brief filed in August, 1975 offered a

"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 continue 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

Cammonwealth."

variety of arguments upon which it urged the

district court to give the statute a heightened

level of scrutiny under the Fourteenth Amendment

and to hold it unconstitutional. The plaintiff's

arguments for close scrutiny of the statute

included not only a contention of sex discrimination

premised on the fact that 98% of all veterans were

male but also the contention that the concept of

"liberty" in the due process clause clearly encom

passed a “constitutional right not to be foreclosed

fram pursuing careers in public service on a basis

of equal opportunity" and that such right "is

fundamental to and inherent in the concept of

liberty guaranteed in the Constitution." Brief

of the Plaintiffs (August 13, 1975) p. 153. The

plaintiff argued that the statute violated both

the Equal Protection Clause and the Due Process

Clause.

On March 29, 1976, the district court entered

judgment in favor of Mrs. Feeney on her equal pro-

tection claim only. Its opinion is at 415 F.Supp.

485 (D.Mass.1976). It concluded that the equal

protection of the laws was denied to women because,

by the incorporation of the military's enlistment

regulations, the veterans' preference formula

“inescapably" denied to women as a class any meaning-

ful opportunity to compete for civil service jobs

of interest to men. As a result of this discrimina-

tory effect on women, the district court utilized

a heightened level of scrutiny and concluded that

the statute was invalid under the Equal Protection

Clause. The district court made no finding on

and did not consider the plaintiff's alternative

claim of a violation of the Due Process Clause.

The district court also made no finding on, and in

its opinion provided no analysis of, the plaintiff's

alternative argument that heightened scrutiny was

warranted, not only on a theory of sex discrimina-

tion, but on the independent basis that the whole-

Sale denial of access to public employment effected

by the absolute preference system infringed upon

the right to "liberty" guaranteed by the Fourteenth

Amendment.

The Attorney General appealed the district

court's judgment, and eventually this Court remanded

the cause to the district court for further con-

sideration in light of Washington v. Davis, 426

U.S. 229 (1976). The order of remand is reported

at 434 U.S. 884 (1977),

On remand, the district court ordered the

parties to file supplementary briefs and heard oral

argument. In her supplementary brief, in addition

to addressing the issue of whether the facts

established an intentional discrimination against

women, the plaintiff reminded the district court

that she had an alternative claim that the statute

violated the Due Process Clause. While her previous

arguments in 1975 on the deprivation of her

interest in "liberty" had suggested an alternative

basis for heightened scrutiny in the context of

equal protection, in 1977 in light of this Court's

decision in Hampton v. Mow Sun Wong, 426 U.S. 88

(1976), the plaintiff squarely argued that the

infringement on her "liberty" violated the Due

Process Clause. Plaintiff's Supplementary Memorandum

of Law, (November, 1977) pp. 34-38. The refinement

in plaintiffs' argument and her reminder to the court

of the existence of her alternative claim was wholly

apart from the argument that an intentional dis-

crimination against women warranted heightened

scrutiny. It was a claim and argument for heightened

scrutiny that depended on the recognition that the

wholesale exclusion from public employment of the

plaintiff and others similarly situated deprived

them of an interest in "liberty" protected by the

Due Process Clause.

However, the district court again declined to

decide or analyze the plaintiff's claim of a denial

of due process but rather issued an opinion reaffirm-

ing only its prior holding in favor of Mrs. Feeney

on her equal protection claim finding that the

foreseeable and inevitable exclusion of women as

a result of the use of the absolute preference was

an intentional act within the meaning of Washington

v. Davis, supra. Feeney v. Cammonwealth of

Massachusetts, 451 F.Supp. 143 (D.Mass. 1978).

On August 10, 1978, the Attorney General

again docketed an appeal in this Court by filing a

Jurisdictional Statement in which the question

presented to this Court was set forth as:

“Does the preference afforded veterans

by Mass. Gen. Laws c. 31, §23 violate

the Equal Protection Clause of the

Fourteenth Amendment?"

There being no judgment rendered by the district

court on the plaintiff's due process claim, on

appeal the briefs were limited to the issues

relating to the finding of a violation of the

Equal Protection Clause based on an intentional

discrimination against women. However, at oral

argument before this Court the following exchange

occurred between Mr. Justice Stewart and the

Assistant Attorney General, Mr. Thamas Kiley, who

was appearing on behalf of the state defendant-

appellants (Trans. of Oral Argument, Feb. 26,

1979, p.4):

"QUESTION: Is this exclusively an

equal protection case?

"MR. KILEY: It is explicitly an

equal protection case, Mr. Justice

Stewart. It could not be a Title 7

case. Under Title 7, veterans'

preference statutes are explicitly

excluded.

"QUESTION: And no reliance is

placed upon the due process

clause?

"MR. KILEY: It is an equal protection

Clause case as it has been decided.

"QUESTION: And as has been argued,

supported?

"MR. KILEY: Yes, Mr. Justice

Stewart."*

These representations were accurate to the extent

that they indicated that the case was then before

this Court only on the Equal Protection Clause claim

but somewhat misleading to the extent that they

implied that the plaintiff had not claimed and

argued a violation of the Due Process Clause which

claim had not yet been decided or addressed by

the lower court.

On June 5, 1979, this Court issued its opinion,

reported at --U.S.--, 99 S.Ct. 2282 (1979), in

which it held that the evidence did not support a

finding of an intentional discrimination against

women. Accordingly this Court reversed and

remanded the cause to the district court for further

proceedings consistent with its opinion. In reach-

ing its results, this Court carefully set forth that

*After the oral argument, counsel for Mrs.

Feeney asked Mr. Kiley to correct the niisstatement

that the Due Process clause had not been relied on

in the district court, but Mr. Kiley did not do so.

"The sole question for decision on this

appeal is whether Massachusetts, in grant-

ing an absolute lifetime preference to

veterans, has discriminated against women

in violation of the Equal Protection Clause

of the Fourteenth Amendment." 99 S.Ct.

at 2292.

This Court did not address the alternative and

undecided claim based on the Due Process Clause

which the district court had yet to address.

After this Court's decision, the plaintiff

pramptly asked the district court to consider and

to decide her alternative claim of a violation

of the Due Process Clause. It had been almost

four years since the original briefs had been filed

and this Court in the intervening years had pro-

vided additional decisions bearing on due process

claims such as Moore v. East Cleveland, 431 U.S. 494

(1977) and Hampton v. MowSunWong, 426 U.S. 88

(1976). Thus, Mrs. Feeney filed a motion requesting

that the district court allow her to file a brief

and for an oral argument on the claim, as yet

undecided, that the absolute preference for veterans

by the state deprived her of due process rights

guaranteed by the Fourteenth Amendment.

In response, the Attorney General moved for

immediate entry of judgment, and, in contrast with

its suggestion to this Court in oral argument that

the case had not previously been argued and supported

on the due process claim, filed a memorandum

EEE

suggesting to the district court that the claim

based on the Due Process Clause had already been

"fully briefed and argued". Defendant's Memorandum,

pp. 2-3.

The district court denied the plaintiff's

request to file a brief and on August 23, 1979 entered

a final judgment for the defendants. As explained

in its Memorandum and Order, published at 475 F.Supp.

109 (D.Mass.1979) (App. B), the district court found

only that to the extent that a claim of a violation

of due process depended on a finding of intentional

discrimination against women, the claim should be

rejected because of this Court's opinion prior to

remand. It expressly declined to decide or to enter

any judgment on the claim of a denial of due process

on the grounds that the statute deprived the

plaintiff of an interest in liberty protected by

the Due Process Clause,

In a dissenting opinion, Judge Tauro disagreed

that the district court had any power to refuse to

decide Mrs. Feeney's allegedly "new" due process

claim which, Judge Tauro noted, even the majority

had conceded was encompassed in the complaint. 475

F.Supp. at 112-113. He then went on to state that

even if the court had such power to refuse to

decide the "new" due process claim, it was unreasonable

to exercise such power in the case before it where

the record was camplete and all that Mrs. Feeney

14 15

was requesting was a few weeks in which to prepare included in plaintiff's complaint or original

a thorough brief on the matter. Under these brief, this did not by itself vest the district

circumstances, Judge Tauro concluded, there was | court with discretion to refuse to consider them.

simply no justification for the district court To the contrary, as numerous federal courts have

to throw up its hands and leave the matter for repeatedly held, the whole point of the present

another forum to decide, possibly after another federal rules of civil procedure is that a party

several years of litigation. should be granted the relief to which the facts

The district court's failure to camplete the show he is entitled, regardless of his failure to

trial of a properly pleaded claim and its failure rely initially on the correct legal theory for such

to render a decision on a claim before it has relief.

occasioned the filing of this appeal. Thus, on Secondly, the district court erroneously inter-

October 19, 1979, Mrs. Feeney filed her Notice of preted this Court's prior decision as mandating the

Appeal to this Court from the decision of the immediate entry of judgment, no matter what

district court. undecided claims remained, "absent very compelling

circumstances", 475 F.Supp. at 111. Yet this

Court's prior decision gave the district court no

The Question Presented is Substantial.

I. Introduction such authority and established no such standard for

The district court assumed that it could split its refusal to hear and decide fully the remaining

plaintiff's claim of a violation of her rights under due process claim.

the Due Process Clause into a number of discrete : Finally, the reasons set forth by the district

arguments and decide same but not all of the court for refusing to consider and to decide fully

arguments advanced in support of her claim. The ' the plaintiff's claim based on the Due Process

district court's refusal to consider each of Clause demonstrate an arbitrary unwillingness to

plaintiff's arguments in support of her due process decide a claim properly before it and are clearly

claim and its refusal to decide her claim fully was insufficient to justify that court's refusal to

erroneous for several reasons. In the first place, decide the plaintiff's claim.

€ven assuming that same of plaintiff's present theories

or arguments were "new" or different from what was

EE ISS SE TOR LTT

II. Under the Circumstances, the District Court

Erroneously Presumed that it had Discretion

Not to Decide Plaintiff's Due Process Claim.

The plaintiff submits that a careful review of

the record would show that her previously advanced

arguments in support of her due process claim were

not dependent on a finding of intentional discrimina-

tion against women and thus disposed of by this

Court's previous decision. However, even if one

assumes, as the district court did, that plaintiff's

arguments after remand constituted a "new"

or argument in support of her undecided claim of a

violation of her rights under the Due Process Clause,

the district court was obligated to review all facts

and arguments and decide whether under any legal

theory plaintiff's claim entitled her to relief.

It is now widely agreed among the lower federal

courts that under the Federal Rules of Civil Proce-

dure a plaintiff's initial choice of one legal theory

will not preclude him fran obtaining relief under

another legal theory so long as (1) the facts alleged

in the complaint and established at trial show that

the plaintiff is entitled to the relief in question

and (2) the defendant has not been prejudiced by the

Change in legal theory. International Distributing

Corp. v. American District Telegraph Co., 569 F.2d

136, 139 (D.C. Cir. 1977) (". . . federal courts grant

the parties the relief to which the facts entitle

them, even if the proper theory has not been pled.");

ESL nT a ee

Janke Construction Co. v. Vulcan Materials Co., 527

F.2d 772, 776 (7th Cir. 1976)(". . . the fact that

[plaintiff] misconceived the legal theory of its

case does not preclude it fran obtaining relief

under another legal theory."); Sessions v. Chrysler

Corp., 517 F.2d 759, 760-761 (9th Cir. 1975) ("The

fact that appellant mislabeled his cause of action

against the individual defendants is irrelevant,

so long as he is entitled to relief against them

under any theory."); Jenkins v. Fidelity Bank,

365 F.Supp. 1391, 1398 (E.D.Pa.1973) ("A complaint

is not to be dismissed because the plaintiff has

misconceived the proper legal theory of the claim.").

As two leading authorities on the subject have

written:

"The federal rules, and the decisions

construing them evince a belief that

when a party has a valid claim, he

should recover on it regardless of his

counsel's failure to perceive the true

basis of the claim at the pleading stage,

provided always that a late shift in the

thrust of the case will not prejudice the

other party in maintaining his defense

on the merits."

39 C. Wright and A. Miller, Federal Practice and

Procedure, §1219, at 145 (1969 ed.).

The rule that a party ordinarily should be

permitted to shift the legal theory on which he is

proceeding is derived fram several of the federal

rules, including Rule 8, which provides that a

camplaint need set forth only a "short and plain

statement" of the basis for the court's jurisdic-

tion, the nature of the party's claim, and the relief

demanded, Rule 15, which allows liberal amendment

of the pleadings, and Rule 54(c) which provides that:

"Except as to a party against whom a

judgment is entered by default, every

final judgment shall grant the relief

to which the party in whose favor it

is rendered is entitled, even if the

party has not demanded such relief in

his pleadings."

The manifest policy underlying each of these

rules is that the parties should be granted the

relief to which they are entitled under the facts as

shown, regardless of the failure to plead, or

initially rely on, the proper legal theory in sup-

port of the complaint. See also Rohler v. TRW,

Inc., 576 F.2d 1260, 1264 (7th Cir. 1978)(". . .

it is not necessary that the plaintiff set forth

the legal theory on which he relies if he sets forth

sufficient factual allegations to state a claim show-

ing that he is entitled to any relief which the

court may grant."); PDIC Owners Association v.

Coachella Valley Cty., Water, 443 F.Supp. 338, 342

(C.D.Cal. 1978) ("A court must therefore consider

any legal theory under which the plaintiffs may

prevail on the facts asserted in the pleadings.").

In the present case there was no possible

prejudice to the defendants fran plaintiff's

additional arguments in support of the due process

claim, and the district court pointed to none. Thus,

under each of the decisions referred to above, the

district court simply had no power to refuse to

consider all of plaintiff's arguments. To the

contrary, the clear responsibility of the district

court was to do what it had never previously done

in this litigation--i.e., consider each of the

facts which were properly pleaded and proved and

determine whether those facts, under any legal

theory, showed a violation of the Due Process

Clause as alleged by plaintiff. The district

court's refusal to perform this responsibility,

or even to take briefs on the subject, was clearly

improper, and should be reversed by this Court.

III. The District Court Erroneously Assumed That

This Court's Prior Decision Somehow Gave it

Authority to Ignore and Not Fully Consider

the Undecided Claim.

As this Court has made clear with respect to

its role:

"When a case is presented to an appellate

court it is not obliged to consider and

decide all the questions then suggested

or which may be supposed likely to arise

in the further progress of the litigation.

If it finds that in one respect an error

has been committed so substantial as to

require a reversal of the judgment, it

may order a reversal without entering

into any inquiry or determination of

other questions. .. . Hence the mule is

that a judgment of reversal is not

necessarily an adjudication by the

appellate court of any other than

the questions in terms discussed

and decided."

Mutual Life Insurance Co. v. Hill, 193 U.S. 551, 553-

554 (1904); see also Sherwin v. Welch, 319 F.2d 729

(D.C. Cir. 1963) (The court reversed the district

court for entering judgment based on a prior

remand "for further proceedings not inconsistent

with the opinion of this court" because the lower

court erroneously failed to consider undecided

issues) .

In this case, neither this Court nor the dis-

trict court had previously analyzed or decided the

plaintiff 'S separate due process claim. Neverthe-

less, when it became time to do so as a result of

this Court's remand, the district court concluded

that it would be "improper" to delay entering

final judgment,despite the pending undecided

due process claim, absent same extraordinarily

“persuasive showing"* because of this Court's

decision on a different claim based on a finding

of a violation of the Equal Protection Clause.

*In fact, the plaintiff was effectively barred

from making any such "persuasive showing" when the

district court denied her motion requesting the

Opportunity to file a brief on the remaining

claim.

Thus, the district court stated:

"At this late date having in mind that

the Court's decision commands the sup-

port of seven Justices, we would think

it improper to delay implementation of

the Court's opinion without a persuasive

showing that the issues sought to be

presented were both substantial and

Proper for our consideration at this

time." 475 F.Supp. at 110.

However, what the district court ignored was

that this Court had expressly stated that the "sole

issue" it was deciding was whether there was a

violation of the Equal Protection Clause. 99 S.Ct.

at 2292. The order to the district court was "for

further proceedings consistent with this opinion."

99 S.Ct. at 2297,

Nothing in this Court's prior decision gave the

district court authority to fail to consider fully

the remaining claim based on the Due Process Clause.

This Court properly decided the sole issue presented

to it. The district court in effect has taken the

position that this Court sent it a broad but un-

Stated "message" that the absolute preference

Statute is to be approved no matter what additional

claim is still pending and that, without any further

serious attempt at analysis of such alternative claim,

the plaintiff should be immediately foreclosed fran

making any further arguments by the entry of final

judgment against her.

This approach by the district court is not

sanctioned by this Court's prior decision and is

inconsistent with the orderly adjudication of claims

by a trial court. The judgment should be reversed

with instructions to consider and decide fully the

claim that the statute denies the plaintiff an

interest in "liberty" protected by the Due Process

Clause.

IV. The Reasons Advanced For Failing to Decide

Fully the Due Process Claim Are Patently

Insufficient to Justify the District Court's

Actions.

As the dissenting judge in the district court

pointed out, the majority cited no pertinent author-

ity in support of its presumption that it had dis-

cretion "to refuse to decide an issue adequately

pleaded." 475 F.Supp. at 114 n. 5 (Tauro, Jo,

dissenting) (App. 18a). The majority did, however,

proffer a number of purported reasons for its

refusal to consider the remaining due process

claim. None of these reasons warranted the

court's refusal to act.

First, the majority suggested that further

argument was inappropriate because "it would

needlessly delay entry of judgment and unfairly

affect those who stand to benefit fram the

Massachusetts Veterans Preference law." 475 F.Supp.

at lll. This proposition is entirely specious.

As soon as this Court reversed the district court's

prior judgment, there was no longer any injunction

against use of an absolute preference for veterans

and the Cammonwealth was entirely free to grant all

the absolute preferences it desired. There was

simply no prejudice at all that would have accrued

to the defendants or to anyone else if the plaintiff

was allowed to brief fully and the district court

proceeded to decide fully the remaining due process

claim.

Secondly, the district court suggested that

samehow the plaintiff has attempted to engage in

"piecemeal" litigation. 475 F.Supp. at 111.

However, it was the district court itself that

chose initially to decide only the claim based on

the Equal Protection Clause. When the basis for

the judgment On that claim was reversed, plaintiff

moved inmediately for a decision on the previously

undecided claim by asking for a briefing schedule

and oral argument. The delay in deciding the due

process claim was entirely the result of the dis-

trict court's decision to decide only one claim.

It is simply unfair now to blame the plaintiff

and refuse to consider and to decide her remaining

claim.

In addition, the district court's suggestion

that "an interest in orderly litigation" gave it

authority to refuse to hear the claim “absent

very compelling circumstances", 475 F.Supp. at

lll, is specious. As the dissenting judge pointed

out:

"Such an approach is inconsistent with

all accepted concepts of efficient

judicial administration. ...

"The record in this case is camplete.

There is no need for further evidence.

We are familiar with the facts and the

general positions of the parties. All

that remains is for plaintiff's counsel

to have the opportunity to brief and

argue the due process issue ....

"What the majority has said, however, is

that we will not even hear the plaintiff's

theory and that final resolution of the long

pending Veterans Preference saga must be

postponed until same indefinite time in

the future. I feel the more responsible

approach would be to hear the parties now

and then decide the issue. I see no

justification in imposing this responsi-

bility on some other forum." 475 F.Supp.

at 114 (Tauro, J., dissenting).

Finally, while conceding that recent decisions

of this Court may have afforded greater support

for her due process Claim, 475 F.Supp. at 112, the

district court concluded that plaintiff's undecided

due process claim "faces an uncertain future". 475

F.Supp. at 112. This consideration is meaningless

since any undecided claim is "uncertain", particularly

when it has not been briefed or analyzed in light

of the facts of the particular case presented to the

court. In no sense can the "uncertainty" of a

claim provide a logical basis for a trial court

to refuse to decide a claim otherwise properly

before it.

Thus, upon analysis, the reasons advanced

for refusing to act upon the undecided claim are

insubstantial. They only underscore the injustice

accorded the plaintiff by the refusal to consider

fully the complex issues relating to her claim

that the use of an absolute preference is such

a wholesale denial of access to a major occupa-

tion--public servant--that it infringes on the

"liberty" protected by the Due Process Clause.

Conclusion.

The questions presented in this statement

are substantial, involving as they do the

basic issue of a trial court's refusal even to hear

or decide a claim properly before it. The appellant

respectfully urges this Court to reverse summarily

the decision of the district court or to note

probable jurisdiction and set the case down for

argument.

Respectfully submitted,

RICHARD P. WARD

ELEANOR D. ACHESON

JOHN H. MASON

Ropes & Gray

225 Franklin Street

Boston, MA 02110

(617) 423-6100

JOHN REINSTEIN

Massachusetts Civil

Liberties Union

Foundation

47 Winter Street

Boston, MA 02108

(617) 482-3170

Attorneys for the Appellant

Appendix A.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

HELEN B. FEENEY,

Plaintiff

vs. CIVIL ACTION

NO. 75-1991-T

Judgment is entered in favor of the defendants

in Feeney v. Commonwealth, C.A. 75-1991-T on the

ground that Mass. Gen. Laws c. 31, §23 does not

discriminate on the basis of gender and does not

for that reason violate the provisions of the

Fourteenth Amendment to the Constitution of the

United States.

August 23, 1979 LEVIN H. CAMPBELL

CIRCUIT JUDGE

FRANK J. MURRAY

DISTRICT JUDGE, SENIOR

Appendix B.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

HELEN B. FEENEY,

Plaintiff

vs. CIVIL ACTION

NO. 75-1991-T

THE COMMONWEALTH OF

MASSACHUSETTS, ET AL.,

Defendants

MEMORANDUM AND ORDER.

August 17, 1979.

After the Supreme Court's Opinion and judgment

reversing this court's decision in the present case,

Personnel Administrator of Massachusetts v. Feeney,

—U.S.--, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979),

plaintiff moved that we set a briefing schedule and

entertain oral argument on plaintiff's due process

claims which, she Says, have not so far been con-

sidered in this litigation and were not foreclosed

by the Supreme Court's ruling. Plaintiff's motion

is vigorously opposed by the Commonwealth of

Massachusetts, which has moved for inmediate

entry of a final judgment in its favor.

This court has already written in the present

case two opinions concerning the Massachusetts

Veterans Preference statute, the more recent in

response to a remand from the Supreme Court direct-

ing reconsideration of our first opinion. The

matter is now before us upon the Court's remand for

further proceedings consistent with its opinion.

id., ---, 99 S.Ct. 2282. At this late date, having

in mind that the Court's decision commands the

Support of seven Justices, we would think it

improper to delay implementation of the Court's

Opinion without a persuasive showing that the

issues sought to be presented were both substantial

and proper for our consideration at this time.

It is true that a violation of due process as

well as of equal protection was alleged in the

camplaint, and that due process arguments were

advanced in the briefs within the context of claims

of sex discrimination. It is also true that the

majority opinions of this court, and the decision

of the Supreme Court overturning same, were pre-

mised on the equal protection clause of the four-

teenth amendment, leaving it to this court to deal

now with any remaining due process issue that was

earlier raised and not decided.

We do not believe, however, that the due pro-

cess issues that were pleaded and previously ad-

dressed in the parties' briefs and arguments

encampassed the principal contention plaintiff now

seeks additional time to brief and argue. The argu-

ment now sought to be raised does not rest on alleged

sex discrimination but on the claim that the

Massachusetts Veterans Preference law denies access

to public employment on a wholesale basis and

+Writing for the Court, Mr. Justice Stewart

stated the issue as follows: "The sole question for

decision on this appeal is whether Massachusetts,

in granting an absolute lifetime preference to

veterans, has discriminated against women in viola-

tion of the Equal Protection Clause of the Fourteenth

Amendment." Personnel Administrator of Massachu-

setts v. Feeney, ---U.S. at ---, 99 S.ct. at

2292 (U.S. 1979).

therefore deprives the excluded non-veterans, who

would be male as well as female, of liberty. See

Hampton v. Mow Sun Wong, 426 U.S. 88, 96 S.Ct.

1895, 48 L.Ed.2d 495 (1976) 4 This argument was

not developed until now and, for reasons herein-

after discussed, we are not inclined to permit |

plaintiff to begin over again with this new theory

of constitutional violation.

(1) The due process claims stated in the com

plaint and in previous briefs were of a different

order, being allied to the sex discrimination claim

underlying plaintiff's equal protection argument.

Paragraph 36 of the complaint alleged that by

systematically excluding qualified and eligible

female applicants on the basis of sex, the Massa-

chusetts Veterans Preference statute deprived the

- “Plaintiff did cite Hampton v. Mow Sun Wong,

426 U.S. 88, 96 S.Ct. 1895, 48 L.Ed.2d 495 (1976),

in a supplemental memorandum submitted after the

Supreme Court's remand for reconsideration in light

of Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040,

48 L.Ed.2d 597 (1976), but based her substantive

due process liberty argument on the statute's "near ’

blanket, permanent exclusion of women fram a major _

sector of employment." (Emphasis added.)

plaintiff of the equal protection of the law and of

due process. Sex discrimination was also central

to a due process claim asserted in paragraph 45

resting on the sex-biased nature of the armed

forces. The major due process argument in plaintiff's

brief proceeded on the theory that, by creating

an irrebuttable presumption in favor of veterans,

the statute worked an invidious discrimination

against women. These theories were all bottomed

on sex discrimination. It was not contended that

non-veterans of both sexes were unconstitutionally

deprived of a liberty interest in public employment.

The due process arguments set forth in the

preceding paragraphs--which are the ones raised in

the previous course of this litigation--are, we

think, rendered insubstantial by the Supreme Court's

decision in this case. While the Court's decision

speaks to the equal protection clause, it leaves

little if any room for sex discrimination arguments

resting on the due process clause. Thus the claim

in paragraph 45 of the complaint, referring to due

process and equal protection, was specifically dis-

posed of on pages 19-20 of the Court's opinion, al-

though without actual reference to the due process

camponent. We find it inconceivable that after

rejecting a claim of sex discrimination based on

equal protection grounds, the Court would accept

a comparable claim resting on due process grounds.

Nothing in its opinion or in the applicable law

invites such an assumption. We therefore hold

against plaintiff on these originally stated due

process claims at this time, believing that any

further argument to us concerning them would serve

no purpose, and would furthermore be inappropriate

as it would needlessly delay entry of judgment and

unfairly affect those who stand to benefit fram the

Massachusetts Veterans Preference law. 3 If we have

~As we point out in this memorandum, the

plaintiff was fully heard on her due process claim

in the previous course of the litigation in this

court on her briefs and in oral argument. The

court did not reach the due process argument,

electing to rest the decision on the equal protec-

tion ground, Anthony v. Cam. of Mass., 415 F.Supp.

485, 499 n. 15. (The argument was considered in

the dissenting opinion. Id. at 504-05 n.9.) This,

misread the Court, plaintiff is, of course, free to

seek correction by the Court itself.

(2) We are left with plaintiff's newly-raised

due process argument--that non-veterans' substantive

liberty interest in public employment is subverted

by the Massachusetts Veterans Preference law. As

already indicated, this presents a new legal theory,

distinct fram any previously stated. While upon

remand from the Supreme Court we feel obliged to

determine previously raised questions that still

remain open (and so have here decided the particular

due process arguments mentioned in the preceding

paragraph), we do not feel the same way about newly-

tendered legal theories. We could perhaps entertain

of course, did not foreclose plaintiff as the pre-

vailing party from presenting the due process claim

to the Supreme Court. Dandridge v. Williams, 397

U.S. 471, 475-76 n.6, 90 S.Ct. 1153, 1156, 25

L.Ed.2d 491 (1970). We now have decided against

plaintiff on the due process claim in light of the

previous hearing of the issue and the Supreme

Court's opinion and judgment. We think such con-

sideration can hardly be viewed as "dispos(ing) of

plaintiff's sex based due process theory in one

Sentence." We know of no authority which requires

the court to hear plaintiff's claim a second time.

such claims as a matter of discretion. However, at

this very late stage, an interest in orderly litiga-

tion cautions against entertaining arguments not

previously raised absent very compelling circum-

stances; parties should ordinarily litigate all

issues at one time rather than piecemeal. Cf.

United States v. Charest, 602 F.2d 1015 at 1018

(1st Cir. 1979) (government may not, on appeal,

change focus of case and thereby seek to present

an entirely different case); Rodriguez de Quinonez

v. Perez, 596 F.2d 486, 492 (1st Cir. 1979), peti-

tion for cert. filed, 47 U.S.L.W. 3826 (U.S. June

26, 1979) (petition for rehearing will not be granted

to hear new argument which could have been earlier

raised); Troxel Manufacturing Co. v. Schwinn

Bicycle Co., 489 F.2d 968, 970-71 (6th Cir. 1973),

cert. denied, 416 U.S. 939, 94 S.ct. 1942, 40

L.Ed.2d 290 (1974) (no abuse of discretion to deny

motion to assert alternative theory of recovery

after defendant had had to defend against theory

originally presented at both the trial and

10a

appellate level); Powers v. Bethlehem Steel Corp.,

483 F.2d 963, 964 (1st Cir. 1973) (noting importance

of bringing an orderly end to litigation). It may

be that decisions have recently come down affording

sanewhat greater support to plaintiff's new theory

than was available two years ago, but clearly the

law has not changed so much in plaintiff's favor

that the present denial of relief is demonstrably

wrong or palpably unjust or erroneous. See Legate

v. Maloney, 348 F.2d 164, 166 (lst Cir. 1965). To

the contrary, plaintiff's new claim at very best

faces an uncertain future, and its prospects are

scarcely improved by the fact that a sizeable

majority of the Supreme Court has--on another

ground to be sure--just approved the Massachusetts

Veterans Preference law. It would be unfair to

defendants, after the latter have prevailed on the

equal protection and now the due process theories

originally presented, to allow plaintiff to test

yet another theory and to continue on what would

become a new law suit. This is not to say that

lla

plaintiff or others may not pursue whatever further

State or federal remedies may yet properly be

available to them concerning the controversial

legislation in issue, but the time has come to put

this particular case to rest.

We therefore deny plaintiff's motion for

further argument. We allow defendant's motion for

entry of judgment in the form proposed in the draft,

except we strike the word "otherwise" in the fourth

line and insert the words "for that reason."

So ordered.

TAURO, District Judge, dissenting.

The basic issue before this court involves a

request by plaintiff's counsel to file a brief and

make oral argument to the effect that the Massa-

chusetts Veterans Preference Act (The Act) is

unconstitutional as being violative of his client's

due process rights under the Fourteenth Amendment.

I would grant plaintiff's counsel's request for

two reasons. In the first place, I know of no

authority, and the majority cites none on point,

12a

which would permit a trial court to refuse to con-

sider and decide a legal issue adequately pleaded?

Second, it makes sense as a matter of efficient

and responsible judicial administration for this

court to decide the remaining issue in this case,

rather than leave that task to another forum.

I will treat these points seriatim.

+Plaintiff's complaint must be read as encan-

passing a broad Fourteenth Amendment attack on the

constitutionality of the Act, as well as a narrow

Challenge on a theory of sex discrimination. Para-

graph six of the complaint states:

This is an action for declaratory and injunc-

tive relief . . .commenced to redress the

deprivation, . . ., of rights of the

plaintiff secured to her by the Fourteenth

Amendment to the United States Constitution.

Paragraph seven states:

There exists an actual controversy between

the plaintiff and defendants as to the consti-

tutionality of the hiring practice,... P

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 certifications to

permanent positions in the Classified Civil

Service are made.

l3a

Plaintiff's complaint embodies both equal pro-

tection and due process challenges to the Act. The

Majority of this court twice opined that the Act

did not afford plaintiff equal protection of the law

and, therefore, was un onstitutional. We made no

judgment with respect to any possible due process

claim pleaded by the plaintiff.

The Supreme Court remanded our first opinion

for reconsideration. ‘The Court later reversed our

second opinion and remanded for "proceedings con-

sistent with this opinion." Personnel Administrator

of Massachusetts v. Feeney, --U.S. at--, 99 S.Ct.

at 2297 (U.S.1979). In reversing us, the Court

specifically limited its holding to an analysis

of plaintiff's equal protection claim. Any

Certainly, the complaint would survive a motion

to dismiss based on a theory that it failed to

allege a due process deprivation based on veteran--

non-veteran status.

l4a

due process claims were left open. *

In my view, the Court's mandate for "pro-

ceedings consistent with this opinion" requires that

we reconvene to consider and decide any and all

remaining theories for relief pleaded in plaintiff's

complaint. The prime issue left unresolved by both

this court and the Supreme Court is whether the Act

serves to deprive the plaintiff of Fourteenth

Amendment due process guarantees. The due process

issue has two related but independent theories.

The first revolves around plaintiff's status as a

woman non-veteran. The second embodies a broader

Challenge based on plaintiff's status as a non-

veteran, without reference to sex as a pivotal

factor.

“"The sole question for decision on this appeal

is whether Massachusetts, in granting an absolute

lifetime preference to veterans, has discriminated

against women in violation of the Equal Protection

Clause of the Fourteenth Amendment." Feeney, supra,

—-U.S.--, 99 S.Ct. at 2292 (emphasis supplied).

15a

My colleagues now join in a new majority, ex-

pressing the thought that the Supreme Court's deci-

sion on the plaintiff's equal protection claim

would be dispositive of any due process claim based

on sex. On that premise they dispose of plaintiff's

sex based due process theory in one sentence, 2 without

even affording plaintiff the opportunity to be heard

on the subject. While I am usually among the first

to applaud expeditious resolution of litigation, I

feel campelled to disassociate myself fram such

summary disposition of a properly pleaded constitu-

tional issue,

Notwithstanding that holding by the Majority,

the circumstances of this case compel further con-

sideration of plaintiff's complaint by this court.

"We therefore hold against plaintiff on these

originally stated due process claims at this time,

believing that any further argument to us concerning

them would serve no purpose, and would furthermore

be inappropriate as it would needlessly delay entry

of judgment and unfairly affect those who stand to

benefit fram the Massachusetts Veterans Preference

law." Majority Opinion at page 111.

l6a

Even if it is conceded that the Court's equal pro-

tection opinion would be controlling, as opposed to

persuasive, precedent to a due process challenge by

plaintiff based on sex, there remains open the

broader question as to whether the Act deprives non-

veterans, males and females alike, of due process.

The majority apparently concedes that this broader

issue was adequately pleaded by the plaintiff,4

— “The majority opinion states at page 110, "(A)

violation of due process as well as of equal pro-

tection was alleged in the camplaint, ..." A

later comment by the majority in the i

paragraph makes its position less certain. "we do

not believe, however, that the due process issues

that were pleaded and previously addressed in the

parties' briefs and arguments encompassed the

principal contention plaintiff now seeks additional

time to brief and argue."

In any event, it has long been settled that,

under Rule 8 of the Federal Rules of Civil Procedure,

a complaint is only required to contain a short and

plain statement of facts demonstrating that the

pleader is entitled to relief. "It is not necessary

to set out the legal theory on which the claim is

based." Siegelman v. Cunard White Star, 221 F.2d

189, 196 (2d Cir. 1955) (J. Harlan) (emphasis added) .

See also 2A Moore's Federal Practice section 8.14

l7a

though not argued to date. In our prior opinions,

however, we did not foreclose plaintiff's due

process claims. Rather, we merely determined that

it was not necessary to reach due process issues in

view of our disposition of the equal protection

claim. We have since been reversed and mandated to

take action consistent with the Court's opinion.

We, therefore, must now do that which we thought

unnecessary in our prior opinions, that is address

the due process issues.

The fact that to do so now may amount to

piecemeal review of the complaint is not the fault

of the plaintiff. Indeed, it is not the fault of

this court. We thought, incorrectly, that by focus-

ing on the single issue of equal protection, the

question of the Act's constitutionality would be

resolved. The fact that, in good faith, we have

spent several years wandering down the wrong path

does not mitigate our responsibility to now decide

the remaining constitutional challenge raised by

plaintiff in her complaint. In short, we have no

18a

power to refuse to decide.»

Eas

Even assuming we have some discretion with res-

pect to what issues we will or will not decide,

cammon sense demands that we address the one issue

remaining in this case--that of due process. The

majority's position basically is that it is too late

in the game for us to take up a due process issue

not yet briefed or argued. It believes the resolu-

tion of that issue is better left to another day

before another forum. Such an approach is incon-

sistent with all accepted concepts of efficient

judicial administration. If, while this case was

pending, the plaintiff had filed an independent

due process challenge in this District, that case

would have been assigned to this forum as a "related

~ The majority presumes it has the discretion

to refuse to decide an issue adequately pleaded.

The cases it cites in support of such a proposition

are clearly inapposite. Each deals with an attempt

by @ party to inject a new issue after a hearing

on the merits. The plaintiff here, however, has

never had a hearing on the merits of her remaining

due process claims. See Majority Opinion at

pages 111 and 112. :

19a

case" under Local Rule 8. We have such a rule

because we seek to avoid imposing any unnecessary

duplication of effort on the busy judges of this

The record in this case is complete. There

is no need for further evidence. We are familiar

with the facts and the general positions of the

parties. All that remains is for plaintiff's

counsel to have the opportunity to brief and argue

the due process issue. Counsel represented to us

that his brief could be filed within a few weeks.

Oral argument could be limited by us to an hour

or so, if indeed we thought argument was necessary.

The entire matter could be concluded by late fall.

What the majority has said, however, is that

we will not even hear the plaintiff's theory and

that final resolution of the long pending Veterans

Preference saga must be postponed until same

indefinite time in the future. I feel the more

responsible approach would be to hear the parties

, 20a 2la

now and then decide the issue. I see no justifica- Appendix C.

tion for imposing this responsibility on same other UNITED STATES DISTRICT COURT

forum. FOR THE DISTRICT OF MASSACHUSETTS

HELEN B. FEENEY,

Plaintiff

vs. CIVIL ACTION

NO. 75-1991-T

THE COMMONWEALTH OF

MASSACHUSETTS, ET AL.

Defendants

PLAINTIFF'S NOTICE OF APPEAL

Notice is hereby given that Helen B. Feeney,

plaintiff herein, acting pursuant to Supreme Court

Rule 10, hereby appeals to the United States

Supreme Court fram the Judgment entered in this

action on the twenty-third day of August, 1979.

This appeal is taken under 28 U.S.C. § 1253.

By her attorneys,

Richard P. Ward

Eleanor D. Acheson

John H. Mason

Richard P, Ward

Eleanor D. Acheson

John H. Mason

October 19, 1979 Ropes & Gray

225 Franklin Street

Boston, Massachusetts

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.