# Jurisdictional Statement — Feeney v. Personnel Administrator of Massachusetts

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Jurisdictional Statement
- **Published:** January 1, 1980
- **Citation:** 445 U.S. 901

## Text

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,

v.

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

16

19

22
25

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

12

20

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.

18

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

18

17

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

2

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

3
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:

6
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."

7
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

8
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

9
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

10
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.

12

"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

13
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

16
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

17
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

18
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

19

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

20

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.

21
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.

22

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.

23
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

24

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

25

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

26
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

la
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

2a
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

3a
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

4a
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).

5a
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.)

6a
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

7a
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,

8a

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.

9a
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

Be
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

ia

~ 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

®

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1415%3A1. Public record. Not legal advice.