Petition — Burns v. Sullivan

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No. ,

In the oe so ie

Supreme Court of the United States.

Ocroser TFRM, 1980

FRANCIS J. BURNS,

PETITIONER,

JAMES LEO SULLIVAN er AL.,

RESPONDENTS.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the First Circuit.

RICHARD L, ZISSON,

Joun A. Moos,

ZISSON AND VEARA,

18 Tremont Street,

Boston, Massachusetts 02108.

(617) 523-1105

BATEMAN & SLADE, INC. BOSTON , MASSACHUSETTS

QUESTIONS PRESENTED

1. Whether a six month statute of

limitations is consistent with federal

policy in an action arising under 42

U.S.C. 881983, 1985(3) claiming a denial

of equal protection in the form of reverse

racial discrimination by a public entity?

2. Whether a retroactive application

of a six month statute of limitations in

an action arising under 42 U.S.C. 881983,

1985(3) claiming a denial of equal protec-

tion in the form of reverse racial discrim-

ination by a public entity is equitable

and consistent with the rule enunciated

by this Court in Chevron Oil v. Huson,

404 U.S. 97 (1971)?

3. Whether Chapter 31 827 of the

General Laws of the Commonwealth of

Massachusetts, as interpreted by the

Courts of the Commonwealth of Massachu-

setts, confers a property interest

cognizable in conjunction with the due

process clause of the 14th Amendment

to the United States Constitution?

4, Whether a public entity's non-

conformance with state mandated promotion

procedures due to considerations of

petitioner's race is consistent with the

due process clause of the 14th Amendment

of the United States Constitution?

5. Whether summary disposition was

legally and constitutionally appropriate

in petitioner's claim arising under

42 U.S.C. 8381983, 1985(3)?

iii

PARTIES TO PROCEEDING IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Parties to the proceedings in the

United States Court of Appeals for the

First Circuit include: Petitioner

Francis J. Burns; Respondents James Leo

Sullivan, City Manager of Cambridge,

Walter J. Sullivan, Cambridge City

Councilor, and David Marchand, Personnel

Administrator of the Division of Civil

Service of the Commonwealth of Massachu-

setts.

TABLE OF CONTENTS.

Opinions below

Jurisdiction

Constitutional and statutory

provisions involved

Statement of the case

Basis for federal jurisdiction

in District Court

Reasons for granting the writ

I. The decision below

conflicts with the

decisions of other

Courts of Appeals as

to the proper appli-

cation of the most

appropriate statute

of limitations in an

action arising under

42 U.S.C. $81983, 1985(3)

Il.

Iil.

Iv.

A retroactive application

of a short administrative

statute of limitations

presents a conflict between

the decision below and

decisions of the United

States Supreme Court

The decision below erred

as to the status of state

law holding that Petitioner

does not have a property

interest in the promotion

procedures mandated by

Chapter 31 827 of the

General Laws of the Common-

wealth of Massachusetts

A denial of Petitioner's

due process claim predi-

cated on a public entity's

nonconformance with state

mandated procedures due to

considerations of Petitioner's

race presents a conflict

between the decision below

and decisions of the United

States Supreme Court 39

V. Summary disposition of

Petitioner's Civil Rights

claim was inappropriate

and presents a conflict

between the decision

below and decisions of

the United States Supreme

Court 43

Conclusion 47

Appendix follows page 47

Order of United States District

Court, District of Massachu-

setts la

Memorandum of United States

District Court, District

of Massachusetts 2a

vii

Opinion of the United States

Court of Appeals for the

First Circuit

Judgement of the United States

Court of Appeals for the

First Circuit

Order of the United States

Court of Appeals for the

First Circuit - Entered

April 25, 1980

Constitution of the United

States, Amendment VII

Constitution of the United

States, Amendment XIV

28 U.S.C. 81343

28 U.S.C. 82201

28 U.S.C. 82202

42 U.S.C. 81983

42 U.S.C. 81985(3)

Mass. Gen. Laws Ann.

Ch. 31 827

Mass. Gen. Laws Ann.

Ch. 151B 85

Mass. Gen. Laws Ann.

Ch. 260 S82A

23a

39a

40a

45a

46a

48a

49a

50a

5la

53a

55a

58a

vill

TABLE OF AUTHORITIES CITED.

CASES.

Adickes v. S. H. Kress & Co., 398

U.S. 144 (1970)

Allen v. State Board of Elections,

393 U.S.544 (1969)

Arnett v. Kennedy, 416 U.S. 134

(1974) 41,

Aveo v. Aero Lodge, 390 U.S. 557

(1968)

Beard v. Robinson, 5€3 F.2d 331

(7th Cir. 1977), cert. denied,

438 U.S. 907 (1978)

Bishop v. Wood, 426 U.S. 341 (1976)

Board of Curators, University of

‘Missouri v. Horowitz, 435 U.S.

78 (1978)

Bruner v. United States, 343 U.S.

112 (1952)

Budreck v. Crocker National Bank,

407 F. Supp. 635 (N.D. Cal. 1976)

Burns v. Sullivan, 473 F. Supp.

626 (D. Mass. 1979), aff'd, No.

79-1424 (D. Mass. Mar. 31, 1980),

reh. denied, No. 79-1424 (April

25, 1980)

Cafeteria and Restaurant Workers,

Local 473, AFL-CIO v. McElroy,

367 U.S. 886 (1961) 4,

Chambers v. Omaha Public School

District, 536 F.2d 222 (8th Cir.

1976) 16, 21

Chevron Oil Co. v. Huson, 404 U.S.

97 (1971) 27, 29, 33

Cipriano v. City of Houma, 395

U.S. 701 (1969) 28

Cox v. Stanton, 529 F.2d 47

(4th Cir. 1975) 33

Curtis v. Loether, 415 U.S. 189

(1974) Wy

Dairy Queen, Inc. v. Wood, 369

U.S. 469 (1962) 44

DeLuca v. Sullivan, 450 F. Supp.

736 (D. Mass. 1977) iG, if, 3

DeMalherbe v. Intern. Union of

Elevator Constructors, 449 F. Supp.

- 1335 (N.D. Cal. 1978) 24, 25, 31, 32

England v. State Board of Medical

Examiners, 375 U.S. 411 (1964) 33

Garner v. Stephens, 460 F.2d 1144

(6th Cir. 1972) 20

Graffals Gonzalez v. Garcia Santiago,

550 F.2d 687 (lst Cir. 1977) 29

Green v. Ten Eyck, 572 F.2d 123

(8th Cir. 1978) aha ae

Guam Scottish Rite Bodies v.

Flores, 486 F.2d 748 (9th Cir.

1973) 32

Hahn v. gh cor, 523 F.2d 461

(lst Cir. 1975), cert. denied,

425 U.S. 904 (1976) 24

Hanover Shoe v. United Shoe

Machinery Corp., 392 U.S. 481

(1968) 28

Holden v. Boston Housing Authority,

400 F. Supp. 399 (D. Mass. 1975)417, 30

Jarosz v. City of Chicopee, Mass.

Sup. Ct. No. 78-1336 (1978) 35, 36

Johnson v. Railway Express Agency,

Inc., 421 U.S. 454 (1975) 15, 19

Kantor, et al v. Sullivan, et al,

C.A. No. 74-2662-T (D. Mass.) 4, 5, 7;

10,. 44

Linkletter v. Walker, 381 U.S.

618 (1965) 28

Mason v. Owens-Illinois, Inc.,

517 F.2d 520 (6th Cir. 1975) 20

McKenna v. White, 287 Mass. 495,

192 N.E. 84(1934) 35, 36

Miles v. Illinois Central R.R.,

315 U.S. 698 (1942) 18, 32

Monroe v. Pape, 365 U.S. 167 (1961) 23

Northeastern National Bank v.

United States, 387 U.S. 213 (1967) 26

Occidental Life Insurance Company

v. EEOC, 432 U.S. 355 (1977) 16

xi.

Peckham v. Ronrico Corp., 171

F.2d 653 (lst Cir. 1948) 44

Perry v. Sinderman, 408 U.S. 593

(1972) 37

Poller v. Columbia Broadcasting

Systems, 368 U.S. 464 (1962) 43

Porter v. California, 592 F. ed

770 (5th Cir. 1979) 46

Ramirez de Arellano v. Alvarez

de Choudens, 575 F.2d 315 (lst

Cir. 1978) 29

Raper v. Lucey, 488 F.2d 748

(lst Cir. 1973) 35

Regents of the University of

California v. Bakke, 438 U.S.

265 (1978) 45

Runyon v. McCrary, 427 U.S. 160

(1976) 16

Shouse v. Pierce County, 559 F.2d

1142 (9th Cir. 1977) aa, 22

Smith v. Perkins-Elmer Corp.,

373 F. Supp. 930 (D. Conn. 1973)

23, 24

Vitarelli v. Seaton, 359 U.S.

535 (1959) 45

Ware v. Colonial Provision Co.,

Inc., 458 F. Supp. 1193 (D. Mass.

1978) 17, 29

xii

Warren v. Norman Kealty Co.,

513 F.2d 730 (8th Cir.), cert.

denied, 423 U.S. 855 (1975) 16

Waters v. Wisconsin Steel Works,

427 F.2u 476 (7th Cir.), cert.

denied sub nom. International

Harvester Co. v. Waters, 400

U.S. 911 (1970) 20, 23

Zuniga v. Amfac Foods, Inc.,

580 F.2d 380 (10th Cir. 1978) 21

CONSTITUTIONAL AND STATUTORY PROVISIONS

United States Constitution,

Seventh Amendment 2

United States Constitution,

Fourteenth Amendment 2

28 U.S.C. 81254(1) 1

28 U.S.C. 81343 2, 14

28 U.S.C. 82201 2, 14

28 U.S.C. 82202 2, 14

42 U.S.C. 81983 2. 3. 1%, 38. Ws

20, 2i, 22, 24, 27;

31, 44

42 U.S.C. 81985(3) > > 24

Mass. Gen. Laws Ann. ch. 31

815(c) (West) 8n

xiii

Mass. Gen. Laws Ann. ch. 31

827 (West) oe Po Pee

355 36, ST» 38, 45

Mass. Gen. Laws Ann. ch. 151B

85 (West) 2, 18

Mass. Gen. Laws Ann. ch. 260

B82A (West) Su Bt

MISCELLANEOUS

Developments, Statute of Limitations,

63 Harv. L. Rev. 1177 (1950) 22

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980.

No. d

FRANCIS J. BURNS,

Petitioner,

Vv.

JAMES LEO SULLIVAN, ET AL,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIRST CIRCUIT.

The petitioner, Francis J. Burns,

respectfully prays that a writ of cer-

tiorari issue to review the judgement and

opinion of the United States Court of

Appeals for the First Circuit entered in

this proceeding on March 31, 1980.

OPINIONS BELOW

The opinion of the Court of Appeels,

which appears in the appendix hereto,

(23a-38a)? infra, is not yet reported.

The opinion of the United States

District Court, which appears in the

appendix hereto, (la-22a) infra, is

reported at 473 F. Supp. 626 (1979).

JURTSDICTION

The judgement of the Court of Appeals

for the First Circuit was entered on March

31, 1980. A timely petition for rehearing

was denied on April 25, 1980, and this

petition for certiorari was filed within

90 days of that date. This Court's

jurisdiction is invoked under 28 U.S.C.

81254(1).

1. This form of citation refers to pages

of the appendix.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the following

constitutional and statutory provisions:

United States Constitution, Amend-

ments 7 and 14;

United States Code, Title 28, sections

1343, 2201 and 2202;

United States Code, Title 42, sections

1983 and 1985(3);

Massachusetts General Laws, Chapter 31,

section 27;

Massachusetts General Laws, Chapter

151B section 53

Massachusetts General Laws, Chapter

260, section 2A.

The above constitutional and statutory

provisions appear in the appendix hereto,

(4hua, 55a) infra.

STATEMENT OF THE CASE

This is a suit seeking damages and

injunctive and declaratory relief arising

under 42 U.S.C. 881983, 1985(3). The

main thrust of petitioner's action alleges

a denial of equal protection and due

process of law as a result of invidious

racial discrimination by a public entity.

The petitioner, Francis J. Burns, a white

male, has been employed as a patrolman

in the Police Department of the City of

Cambridge since November, 1967. Peti-

tioner claims he was’ subjected to

racial discrimination in his attempt to

be promoted to the position of sergeant.

On October 22, 1973, a competitive

examination was conducted by the Division

of Civil Service of the Commonwealth of

Massachusetts pursuant to the authority

conferred on it by Chapter 31 of the Gen-

eral Laws of the Commonwealth for

promotion to the rank of sergeant in the

Cambridge Police Department. Based on

the results of said examination, Francis

J. Burns was ranked ninth highest on the

Eligible List out of one hundred and ten

applicants.

Subsequent to the establishment of

said list, a suit was instituted in the

United States District Court for the

District of Massachusetts, Kantor, et al,

v. Sullivan, et al, C.A. No. 74-2662-T

(D. Mass) seeking, inter alia, promotion

of minority group members whose names may

or may not have appeared on the eligibil-

ity list without regard to their respec-

tive grade scores, numerical rank on

the list, or whether on not said plain-

tiffs took the eligibility exam.

During the month of June, 1975, after

the establishment of the Eligible List,

but prior to the start of the oral

interviews, a conference at the United

States District Courthouse in Boston,

Massachusetts was held relative to a

possible settlement of the Kantor matter.

All counsel were present, including

counsel for the white patrolmen who were

on the Eligible List. At this meeting,

counsel for the City of Cambridge assured

the counsel for certain white patrolmen

that their clients would be promoted to

the rank of sergeant. Only after such

assurances were made by the counsel for

the City of Cambridge, did counsel for

certain white patrolmen allow their

clients to execute the consent decree.

Prior to this conference, counsel for the

black patroimen in the Kantor case had

knowledge that three of his clients on

the Eligible List were assured by City

officials that they would be promoted to

the rank of sergeant. Such promotions

would be made without consideration of

position on the Eligible List or the

results of the oral interviews.

On June 16, 1975, a consent decree

was executed between the plaintiffs in

that action and, among others, the respon-

dent James Leo Sullivan in the instant

case. Under the terms of said consent

decree, the Eligible List was confirmed

and approved and the respondent City

Manager was ordered to submit forthwith

to the defendant City Council an appro-

priate request to fund the cost of promo-

ting not less than twenty-eight (28)

patrolmen to the grade of sergeant from

the names of the patrolmen appearing on

the Eligible List. Pursuant to the

consent decree, the petitioner received

notice from the Director of Civil Service

that he was certified as eligible for

appointment to the grade of sergeant.

He then reported to the then Acting Chief-

of-Police, Francis Pisani, now deceased,

on or about June 26, 1975, for an inter-

view for promotion. The interview lasted

approximately five minutes. During said

interview, plaintiff expressed his will-

ingness to accept a promotion to the rank

of sergeant.

On or about July 3, 1975, the peti-

tioner received notice that he had been

skipped over by twenty-two (22) indivi-

duals who had received examination scores

inferior to the score he had achiéved.

These individuals included three black

patrolmen, Calvin J. Kantor, Thomas H.

Benson and Herbert H. Halliday of the

Cambridge Police Department, who were

plaintiffs in the Kantor case and who were

in the 20th, 27th and 30th positions on

the Eligible List, respectively. Petitioner,

Francis J. Burns, a white patrolman, was

skipped over for promotion to the rank

of sergeant during the series cf promo-

tions although he placed ninth on

the Eligible List.

On or about July 9, 1975, respondent,

James Leo Sullivan, acting as sole appoint-

ing authority for the City of Cambridge,

filed with the Division of Civil Service

for the Commonwealth of Massachusetts

authorization of employment promoting

twenty-eight (28) individuals to the

rank of sergeant.

Under the provisions of the General

Laws of Massachusetts (ter. Ed.), Chap-

ter 31, Section 15(c)1, the respondent

2.- The provisions of 815(c) have been

substantially duplicated in the present

Mass. General Laws Chapter 31 827, as

amended by 811 and 845, Chapter 393 of

the Acts of 1978.

City Manager and Acting Chief-of-Police

Pisani, acting as the collective-appoint-

ing authority, were required, upon skipping

over the petitioner and promoting indivi-

duals who scored lower on the eligibility

examination, to provide a written state-

ment of their reasons for so skipping

over an applicant who placed higher on

the list.

The petitioner was, in fact, skipped

over twenty-two (22) times, and in each

instance, the statement given pursuant

to law was "better qualified". Such a

conclusion is not based on fact or any

reasonable, objective standard of com-

parison, but is arbitrary, capricious

and unsupported by records of the plain-

tiff's performance as a patrolman and by

records of the applicants who skipped

over plaintiff in the promotion process.

The District Court granted summary

judgement against petitioner holding

that he was not entitled to bring his

claim of constitutional deprivations be-

fore a jury (13a). Summary judgement was

granted in spite of the fact that the

District Court had evidence that:

| 1. The attorney for the black plain-

tiffs in Kantor v. Sullivan, C.A. No. 74-

2662-T (D. Mass.) testified at a deposition -

in the case of Deluca V. Sullivan, 450

F. Supp. 736 (D. Mass, 1977) that he was

party to a secret deal with the promoting

authority whereby three black patrolmen

would be promoted to the rank of sergeant

regardless of their written and oral

examination scores and to the exclusion

of three white patrolmen (12a-l3a).

2. The written and oral scores, tak-

en in any mathematical combination, do not

support the contention asserted in the

statement of reasons that the 22 indi-

viduals who passed over petitioner were

"better qualified" .3

In spite of the evidence before the

Court, the inescapable inference that

had petitioner been black he would have

been promoted to the position of sergeant

was ignored. The District Court also

held that the petitioner had no property

right to the position of sergeant (20a)

and, consequently, no due process rights

were violated. Moreover, the District

Court held that even if James Leo Sulli-

van participated in a secret deal whereby

three black patrolmen would be promoted

at the expense of three white patrolmen

"such evidence would not be enough to

3. This evidence was not mentioned by

the District Court, however it was

discussed by the Court of Appeals (26a).

support plaintiff's allegation that he

was a victim of racial discrimination"

(13a).

The United States Court of Appeals

for the First Circuit affirmed the

District Court's granting of summary

judgement. However, petitioner's equal

protection claim was deemed time barred

by the statute of limitations in that

petitioner failed to file his 881983,

1985(3) claims within the short admini-

strative statute of limitations (six-

month period) applicable to administra-

tive complaints filed with the Massachu-

setts Commission Against Discrimination

(37a). The Court of Appeals was silent as

to the appropriateness of the District

Court's summary disposition of petition-

er's equal protection claim and applied

the six-month statute of limitations

retroactively. The Court of Appeals also

affirmed the District Court's grant of

summary judgement finding that the peti-

tioner was not deprived of due process of

law by the promotion procedures (3la)

utilized by’ the respondent City Manager,

mua 2ithough the Court of Appeals conceded

that race may have been a dispositive

factor in the promotion process and that

procedures mandated by state law may have

been disregarded (n.5, 26a).

Petitioner filed a petition for re-

hearing, relying on evidence demonstrating

that he did not obtain facts supporting

his claim of racial discrimination until

May, 1978 and thus, his action was timely.

Petitoner's request for rehearing was

denied by the Court of Appeals (40a-43a).

BASIS FOR FEDERAL JURISDICTION

IN THE UNITED STATES DISTRICT COURT,

DISTRICT OF MASSACHUSETTS

Provisions of Title 28 of the United

States Code, Sections 1343, 2201, 2202

and Title 42 of the United States Code,

Sections 1983 and 1985(3) provide the

basis for federal jurisdiction in the

above-mentioned court of first instance.

REASONS FOR GRANTING THE WRIT

I. THE DECISION BELOW CONFLICTS WITH THE

DECISIONS OF OTHER COURTS OF APPEALS

AS TO THE PROPER APPLICATION OF THE

MOST APPROPRIATE STATUTE OF LIMITA-

TIONS IN AN ACTION ARISING UNDER 42

U.S.C. 881983, 1985(3).

Congress has not adopted a statute of

limitations for actions arising under

42 U.S.C. 81983. When Congress fails to

create a statute of limitations for

federal causes of action, courts must

apply the statute of limitations of the

most analogous causes of action under

the law of the state in which the federal

cause of action arises. Johnson v.

Railway Express Agency, Inc., 421 U.S.

454, 462 (1975). The application of state

law must be consistent with the policies

underlying the federal cause of action.

Occidental Life Insurance Company v.

EEOC, 432 U.S. 355, 367 (1977); Runyon

v. McCrary, 427 U.S. 160, 180 (1976).

State statute of limitations, however,

should not be automatically applied in

civil rights actions if it would discrim-

inatorily single out federal causes of

action by imposing an unduly brief period

in which to commence the action. Chambers

v. Omaha Pub. School Dist., 536 F.2d 222

(8th Cir. 1976). Courts need not search

for a state statute which would apply only

in a remotely analogous manner if a state

statute of limitations is found which

clearly governs and is directly related

to the federal civil rights claim.

Chambers, id. at 228; Warren v. Norman

Realty Co., 513 F.2d 730, 734 (8th Cir.),

cert. denied, 423 U.S. 855 (1975).

Petitioner filed his civil rights

action prior to the expiration of the

statute of limitations previously adhered

to in District of Massachusetts. Ware v.

Colonial Provision Co., Inc., 458 F. Supp.

1193, (D. Mass 1978); Deluca v. Sullivan,

450 F. Supp. 736 (D. Mass 1977); Holden

v. Boston Housing Authority, 400 F. Supp.

399 (D. Mass 1975). While the Court

below recognized that decisions in the

District of Massachusetts have uniformly

held that actions arising under the Civil

Rights Acts sound in tort and therefore,

the Massachusetts general tort statute

of limitations applies (3 years, see,

M.G.L. c. 260 82A), .it held that a uni-.

form approach to all civil rights cases

would not be utilized (34a-35a).

The Court below foreclosed the possi-

bility of petitioner obtaining relief.in

an action predicated upon an allegation of

racial discrimination in public employment,

irrespective of petitioner's reasonable

reliance on previous interpretation of

the applicable federal and state statutes

of {iat cacton. State courts may not fore-

close relief for litigants relying on

federal statutes. Miles v. Illinois R.R.;

315 U.S. 698 (1942). Petitioner is

entitled to similar protection.

The Court below held that the most

analogous statute of limitations was

the six month statute utilized by the

Massachusetts Commission Against Discrim-

ination, Mass. Gen. Laws Ann. Ch. 151B

85 (37a). Petitioner asserts that the

short administrative statute of limi-

tations is not "most analogous" in a case

arising under the Civil Rights Acts.

Actions filed with the Massachusetts

Commission Against Discrimination are

not necessarily predicated upon allega-

tions of state action, unlike actions

arising under 42 U.S.C. 81983. Addition-

ally, the structure of M.G.L. Ch. 151B is

designed to foster mediation and concil-

fation of civil rights actions. Admini-

strative informality is utilized in the

gathering of evidence and attempts to

resolve the matter in dispute. The

administrative statute of limitations is

only analogous in that actions claiming

racial discrimination by a public employ-

er may be filed under that statute.

Petitioner asserts that utilization

of a six month statute of limitations for

his civil rights action is inappropriate

under federal law. Johnson v. Railway

Express Agency, Inc., supra, at 454.

Strong federal policy considerations

dictate against reliance on a short

administrative statute of limitations in

cases arising under the Civil Rights Acts.

A survey of decisions in other Cir-

cuit Courts of Appeals reveals that no

other court has applied a short admini-

strative statute of limitations in

determining the "most analogous" state

statute of limitations for an action

arising under 42 U.S.C. 81983. Other

Circuit Courts have decided with uni-

formity that limitations periods for

the filing of an administrative claim

are inapplicable to civil rights actions

in courts of law. Mason v. Owens-Illinois,

Inc., 517 F.2d 520 (6th Cir. 1975) (six-

month period for filing complaint with

Ohio Civil Rights Commission); Garner v.

Stephens, 460 F.2d 1144 (6th Cir. 1972)

(90-day period for filing complaint with

Kentucky Civil Rights Commission); Waters

v. Wisconsin Steel Works, 427 F.2d 476

(7th Cir. 1970), cert. denied, 400 U.S.

911 (1970) (120-day period for filing

complaint of a discrimination claim under

Illinois Fair Employment Act);

Green v. Ten Eyck, 572 F.2d 123 (8th

Cir. 1978) (180-day period for filing

complaint under Missouri Discriminatory

Housing Practices Law); Chambers v.

Omaha Public School District, supra, at

225-27 (180-day period under Nebraska

Fair Employment Act); Shouse v. Pierce

County, 559 F.2d 1142 (9th Cir. 1977)

(30-day period for challenging action by

Board of Commissioners of a utility

district); Zuniga v. Amfac Foods, Inc.,

580 F.2d 380 (10th Cir. 1978) (six-month

limitations period for filing civil rights

complaints under the Colorado Anti-Dis-

crimination Act).

The Eighth Circuit in the Green case

specifically rejected the trial court's

assertion that a six-month limitations

period was the most analogous state

statute of limitations for a plaintiff's

claim arising under 81983 since state

action is an essential element of the

cause of action, unlike a state admini-

strative action. Green v. Ten Eyck,

supra, at 1288.

The Court below, in imposing a six-

month limitations period for.a civil rights

claim under 81983, not only has taken a

position in a square and irreconcilable

conflict with the view of other circuits,

but has done so in a fashion which under-

mines strong federal policy considerations.

The United States has an interest in a

time period that is "sufficiently

generous...to preserve the remedial spirit

of federal civil rights actions". Shouse

v. Pierce County, supra, at 1146. Some

causes of action have relatively long

limitations periods because the law favors

the individuals who prosecute them. See

Developments, Statute of Limitations,

63 Harv. L. Rev. 1177, 1185-1186 (1950).

Clearly, victims of constitutional torts

fall into said category. See, e.g., Beard

v. Robinson, 563 F.2d 331, 337 (7th Cir.

1977), cert. denied, 438 U.S. 907 (1978),

quoting Monroe v. Pape, 365 U.S. 167, 194

(1961).

The United States' interest in main-

taining "sufficiently generous" time

periods is a response to the special

needs of plaintiffs who bring their con-

stitutional claims to federal courts.

Waters v. Wisconsin Steel Works, supra,

at 476. Suits brought in federal courts

of law are generally more complex than

complaints filed with administrative

agencies and present a greater need for

assistance of counsel. Smith v. Perkins-

Elmer Corp., 373 F. Supp. 930, 936 (D.

Conn. 1973). After a charge is filed

with the administrative agency, it is the

"agency's responsibility to shoulder the

burden and initiative of investigation".

Smith v. Perkins-Elmer Corp., id. at 936.

In judicial proceedings, the plaintiff

must build his own case, a particularly

demanding burden in 81983 cases filed in

the District of Massachusetts. As the

Court declared in Hahn v. Sargent, 523

F.2d 461, 467 (lst Cir. 1975), cert.

denied, 425 U.S. 904 (1976), "While we

believe that the plaintiff is entitled to

all favorable inferences,he is not enti-

tled to build a case on the gossamer

threads of whimsey, speculation and con-

jecture". Judicial proceedings require

more expansive limitation periods than

those utilized in administrative pro-

ceedings in order to allow plaintiffs

more time for investigation before filing.

DeMalherbe v. Intern. Union of Elevator

Constructors, 449 F. Supp. 1335, 1347 (N.

D. Cal. 1978). Longer statute of limi-

tations periods are particularly

appropr. ate for judicial proceedings so

as to foster negotiation between the

parties before adversary positions have

become inflexible. "[T]Jhe filing of a

law suit aiters in a very significant

way the posture of the parties and their

ability to reach an informal settlement".

Budreck v. Crocker National Bank, 407 F.

Supp. 635, 644 (N.D. Cal. 1976).

"Whereas the filing of a lawsuit reflects

the failure of negotiation and makes

settlement less likely, an administrative

proceeding represents, at least in theory,

the continuation of negotiation with

the help of a professional mediator".

DeMalherbe v. Intem. Union of Elevator

Constructors, supra, at 1335.

The Court of Appeals' decision to

impose a six-month statute of limitations

in the case at bar presents an important

federal jurisdictional issue that should

be decided by this Honorable Court.

Bruner v. United States, 343 U.S. 112

(1952). Additionally, the decision by

the Court below presents a square and

irreconcilable conflict with relevant

decisions from the Sixth, Seventh, Eighth,

Ninth and Tenth Circuits for the United

States Court of Appeals. See, e.g., Avco

Corp. v. Aero Lodge, 75, 390 U.S. 557

(1968); Northeastern National Bank v.

United States, 387 U.S. 213, 217 (1967).

These conflicts justify the grant of

certiorari to review the judgement below.

II. A RETROACTIVE APPLICATION OF A SHORT

ADMINISTRATIVE STATUTE OF LIMITATIONS

PRESENTS A CONFLICT BETWEEN THE

DECISION BELOW AND DECISIONS OF THE

UNITED STATES SUPREME COURT

Assuming for purposes of argument

that it was proper for the Court below to

hold that a six-month statute of limi-

tations applies in a case arising under

42 U.S.C. 81983 claiming a denial of

equal protection in the form of racial

discrimination by a public entity, a

retroactive application of said statute

of limitations conflicts with decisions

of this Honorable Court.

This Court, in Chevron Oil Co. v.

Huson, 404 U.S. 97, 106-107 (1971),

specified the factors to be considered

in determining whether "nonretroactivity"

is appropriate in new decisions altering a

statute of limitations. In order for a

decision to be applied nonretroactively,

a new principle of law must be created:

...-either by overruling clear

past precedent on which liti-

gants may have relied, see,

e.g., Hanover Shoe v. United

Shoe Machinery Corp., 392 U.S.

451 (1968), or by deciding an

issue of first impression

whose resolution was not clearly

foreshadowed, see, e.g., Allen

v. State Board of Elections,

393 U.S. 544 (1969). Second,

it has been stressed that "we

must...weigh the merits and

the demerits in each case by

looking to the prior history

of the rule in question, its

purpose and effect, and whether

retrospective operation will

further or retard its operation"

Linkletter v. Walker, 381 U.S.

615 (1965). Finally, we have

weighed the inequity imposed by

retroactive application for

"{w]here a decision of the

Court could produce substantial

inequitable results if applied

retroactively, there is ample

basis in our cases for avoiding

the ‘injustice or hardship’ by

a holding of nonretroactivity"

Cipriano v. City of Houma, 395

U.S. 701 (1969).

The Court of Appeals retroactively

applied a short administrative statute

of limitations (six months) in lieu of a

longer judicial statute of limitations

(3 years) to petitioner's civil rights

action alleging a denial of equal pro-

tection in the form of racial discrimi-

nation by a public entity (3la-37a). This

retroactive application of the shorter

limitation period is in direct conflict

with the guidelines established in

Chevron Oil Co. v. Huson, supra.

Clearly, the Court below established

a new principle of law by overruling past

precedent that litigants in the District

of Massachusetts have utilized. Ramirez

de Arellano v. Alvarez de Choudens, 575

F.2d 315, 218 (lst Cir. 1978); Graffals

Gonzales v. Garcia Santiago, 550 F.2d

687 (lst Cir. 1977); Ware v. Colonial

Provision Co., Inc., 458 F. Supp. 1193

(D. Mass 1978); Deluca v. Sullivan, 450

F. Supp. 736 (D. Mass 1977); Holden v.

Boston Housing Authority, 400 F. Supp.

399 (D. Mass 1975). In fact, the Court

that heard petitioner's claim held in the

related case of Deluca v. Sullivan that

the tort statute of limitations applied

so that the plaintiffs might "have a

reasonable period of time in which to

have access to the federal courts" (34a).

The Deluca case and petitioner's claim

arise from the same series of promotions

within the Cambridge Police Department

in 1975. The Court of Appeals suggests

that whether a general statute of limita-

tions is automatically to be used in civil

rights actions is a question of first

impression. Assuming the legitimacy of

such a slain, it is clear, in light of

the uniform approach in determining

applicable limitations periods in the

District of Massachusetts, that the

resolution of the question could not

have been "clearly foreshadowed".

Imposition of a six-month statute

of limitations in petitioner's civil

rights claim would frustrate the"prior

history and purpose of the rule in

question". State law must be utilized

in order to determine the applicable

limitations period in 81983 cases only

to the extent that federal policy will

be observed. Congressional intent

to protect civil rights of individuals

will be undermined if a six month statute

remains the rule in the First Circuit.

"If a Circuit must choose between two

state statutes for causes of action, each

roughly analogous to a civil rights action,

the Court should always choose the longer

statute in order to best effectuate that

federal policy." DeMalherbe v. Intern,

Union of Elevator Constructors, supra,

at 1341. See, Guam Scottish Rite Bodies

v. Flores, 486 F.2d 748, 750 (9th Cir.

1973). <A retroactive application of the

shorter statute of limitations will

allow the Court of Appeals to foreclose

relief for petitioner who reasonably

relied on a federal statute, Miles v.

Illinois Central R.R., supra, a result

Congress could not have intended with

the creation of the Civil Rights Acts.

The severity of the Court of Appeals'

retroactive application of the shorter

statute of limitations is underscored

by the denial of petitioner's timely

petition for rehearing on the issues of

the statute of limitations and the

accrual of his cause of action (39a-42a).

Retroactive application of the new

statute of limitations was particularly

unfair to petitioner since his claim of

racial discrimination did not accrue

until May 23, 1978. See Cox v. Stanton,

529 F.2d 47, 50 (4th Cir. 1975). The

Court of Appeals' refusal to remand

petitioner's action to the District Court

to determine the factual issue of accrual

illustrates the harsh nature of the

Court's decision.

Retroactive application of the six-

month statute of limitations produces

the extreme "inequitable results" ad-

dressed in the Chevron Oil Co. case.

As in England v. State Board of Medical

Examiners, 375 U.S. 411 (1964), nonretro-

active application here simply preserves

petitioner's right to his day in court,

Chevron Oil Co. v. Huson, supra, at 108.

A retroactive application of the short

statute of limitations is in direct con-

flict with decisions of the United

States Supreme Court and justifies the

grant of certiorari to review the judge-

ment below.

III. THE DECISION BELOW ERRED AS TO THE

STATUS OF STATE LAW HOLDING THAT

PETITIONER DOES NOT HAVE A PROPERTY

INTEREST IN THE PROMOTION PROCEDURES

MANDATED BY CHAPTER 31 827 OF THE

GENERAL LAWS OF THE COMMONWEALTH

OF MASSACHUSETTS

The Court of Appeals misapplied

state law in failing to recognize

petitioner's property right in the pro-

motion procedures mandated by Chapter 31

827 of the General Laws of the Common-

wealth of Massachusetts (30a). Petition-

er by virtue of his placement on the civil

service eligibility list has a property

interest in the procedures utilized by

the appointing authority, including a

specific statement of reasons upon being

by-passed for promotion. The Court

below misapplied state law in holding

that since petitioner does not have a

property right to the ultimate promotion,

no other property interests are at

stake. The Court below failed to dis-

tinguish or deny the basis in state law

supporting petitioner's claim that he

has a property interest in the promotion

procedures (29a-3la). Mass. Gen. Law

Ch. 31 827; McKenna v. White, 287 Mass.

495, 192 N.E. 84 (1934); Jarosz v. City

of Chicopee, Massachusetts Superior Court

No. 78-1336(1978). See, also, Raper v.

Lucey, 488 F.2d 748 (1st Cir. 1973).

Massachusetts Civil Service Law,

Ch. 31 827 requires that the appointing

authority, electing to by-pass for promo=

tion an individual whose name appears

on the civil service eligibility list,

must provide a specific statement of

reasons to the applicant explaining the

basis for that decision. The courts

of the Commonwealth of Massachusetts,

in interpreting 827, have held that the

term "best qualified" (statement provided

petitioner) is insufficient for the

purposes of the statement of reasons

required by the statute. Moreover,

the Massachusetts courts have recognized

that employees have a property interest

in the required statement of reasons in

order to protect individuals from

"unwarranted prejudiced or wrongful

personnel decisions," and to impose a

restraint on the appointing authority so

as to prevent casual, prejudicial, arbi-

trary or wrongful actions. Jarosz v.

City of Chicopee, supra, at 4, citing,

McKenna v. White, supra.

The decision below explains that

property interests protected by the

Fourteenth Amendment include interests

secured by "existing rules or understand-

ings" under state law, Perry v. Sinderman,

408 U.S. 593, 601 (1972) (30a). However,

the Court of Appeals failed to apply

state law faithfully by refusing to

acknowledge that the Massachusetts Civil

Service statute Ch. 31, 827 grants one a

protected property interest in a valid

and specific "statement of reasons" upon

being passed over for promotion by a

person who places lower on the civil

service eligibility list. The Court

merely characterized petitioner's due

process claim as one predicated on a

"property interest in promotion to

sergeant" (30a). Petitioner has never

made such a claim, but rather claims a

property interest in the fairness of the

promotion procedures and in a specific

statement of reasons upon being skipped

over for promotion by persons who placed

lower on the civil service eligibility

list.

The Court of Appeals' misapplication

of state law is an error of law of sub-

stantial importance to public employees

seeking promotion in the Massachusetts

Civil Service system in that promotion

procedures and decisions will not be

affordec the protection and guidance of

the due process clause of the Fourteenth

Amendment. Additionally, the lower

court's misapplication of state law will

frustrate the purpose of Chapter 31 827

by allowing appointing authorities to

make arbitrary, capricious and discrimi-

natory personnel decisions. The lower

court's misapplication of state law

justifies the grant of certiorari to

review the judgement below.

IV. A DENIAL OF PETITIONER'S DUE PROCESS

CLAIM PREDICATED ON A PUBLIC ENTITY'S

NONCONFORMANCE WITH STATE MANDATED

PROCEDURES DUE TO CONSIDERATIONS

OF PETITIONER'S RACE PRESENTS A

CONFLICT BETWEEN THE DECISION BELOW

AND DECISIONS OF THE UNITED STATES

SUPREME COURT

The Court of Appeals held that apart

from a determination of petitioner's property

interest in the promotion procedures uti-

lized by the respondent, petitioner's

due process claim was constitutionally

insignificant and subject to summary

judgement (29a).

While the Court of Appeals concedes

that "the Cambridge Police Department

procedures for the 1975 sergeant promo-

tions were irregular" (29a) and that race

may have been utilized as a disposttive

factor therein (26a), petitioner's claim

was held constitutionally insignificant.

The lower courts refused to allow peti-

tioner to present his due process claim

to a jury,in spite of the Court's acknowl-

edgement that state law may have been

violated on the basis of constitutionally

impermissible criteria.

The Court of Appeals' affirmance is in

direct conflict with the rule established

by the Court in Board of Curators of the

University of Missouri v. Horowitz, 435

U.S. 78(1978). While courts may refrain

from acting as super personnel boards in

employment disputes that are "incorrect

or ill-advised", Bishop v. Wood, 426 U.S.

341 (1976), courts must entertain employ-

ment disputes when protected property

interests, i.e., protective promotion

procedures designed to protect employees

from arbitrary and capricious decisions,

are disregarded due to considerations of

race and other constitutionally imper-

missible criteria.

Respondent's failure to provide peti-

tioner with an adequate statement of

reasons under state law deprived peti-

tioner of a federally protected property

interest. Although petitioner has no

statutory entitlement to the promotion

itself, he does have a right under the

due process clause of the Fourteenth

Amendment to be considered for promotion

in accordance with statutory procedures,

Arnett v. Kennedy, 416 U.S. 134 (1974),

free from constitutionally impermis-

sible criteria, Cafeteria & Restaurant

Workers, Local 473, AFL-CIO, v. McElroy,

367 U.S. 886 (1961).

The decision below legitimizes the

concept that local personnel bodies may

disregard state promotion procedures in

a constitutionally offensive manner. The

decision, in effect, holds that local

appointing authorities have nearly un-

limited discretion to make employment

decisions that are repugnant to the due

process clause of the Fourteenth Amendment.

The decision of the Court of Appeals

conflicts with decisions of this Court

and justifies the grant of certiorari to

review the judgement below.

4 3

V. SUMMARY DISPOSITION OF PETITIONER'S

CIVIL RIGHTS CLAIM WAS INAPPROPRIATE

AND PRESENTS A CONFLICT BETWEEN THE

DECISION BELOW AND DECISIONS OF THE

UNITED STATES SUPREME COURT

Assuming that petitoner is entitled

te advance his equal protection and due

process claims, the Court of Appeals'

affirmance of the District Court's grant

of respondent's motion for summary judge-

ment was error as a matter of law and in

conflict with decisions of this Court.

Adickes v. S. H. Kress & Co., 398 U.S.

144 (1970). Poller v. Columbia Broad-

casting Systems, 368 U.S. 464 (1962).

The District Court denied petitioner

the opportunity to have issues of fact

resolved at trial, a right to which he is

legally and constitutionally entitled.

Peckham v. Ronrico Corp., 171 F.2d 653

(lst Cir. 1948). Although the record is

replete with issues of fact, the District

Court denied petitioner his Seventh

Amendment right to a jury trial in an

action for damages arising under 42 U.S.C.

81983. Curtis v. Loether, 415 U.S. 189,

194 (1974); Dairy Queen, Inc. v. Wood,

369 U.S. 469, 477 (1962).

The Court of Appeals states in foot-

note 5 of the opinion that the promotion

procedures may have conflicted with

state law and may have utilized consti-

tutionally impermissible criteria:

"Another possible explanation for the

promotion list used is that, as alleged

by Burns, the promotion of some of the

black plaintiffs in Kantor was an

unwritten part of the settlement decree"

(26a). Consequently, the existence of

such a deal denied petitioner the equal

protection of laws guaranteed to him by

the Fourteenth Amendment by discriminat-

ing against him on the basis of his race,

Regents of the University of California

v. Bakke, 438 U.S. 265 (1978). Addition-

ally, since the record supports the

inference of such a deal, the failure of

respondent James Leo Sullivan to provide

petitioner with a specific and valid

statement of reasons pursuant to M.G.L.

Ch. 31 827 upon being skipped for pro-

motion was predicated upon an arbitrary,

capricious and discriminatory personnel

decision. Arnett v. Kennedy, supra;

Cafeteria & Restaurant Workers v. McElroy,

supra; Vitarelli v. Seaton, 359 U.S. 535

(1959).

Trial by affidavit in the instant case

was manifest error in light of the

importance of the issues involved and

the numerous questions of fact, as partial-

ly outlined by the Court of Appeals below

(26a). As the Fifth Circuit noted in

Porter v. Califano, 592 F.2d 770, 779

(5th Cir. 1979):

Summary judgement is particular-

ly inappropriate in a case...

involving delicate constitutional

rights, complex fact situations,

disputed testimony and question-

able credibilities. This is

especially true where...the

administrative record largely

shaped by the officials themselves

contains clearly conflicting

evidence.

The Court of Appeals' decision to

affirm summary judgement in the instant

case conflicts with decisions of the

United States Supreme Court and justifies

the grant of certiorari to review the

judgement below.

CONCLUSION

For these reasons, a writ of

certiorari should issue to review the

judgement and opinion of the First

Circuit Court of Appeals.

Respectfully submitted,

RICHARD L. ZISSON,

JOHN A. MOOS,

ZISSON AND VEARA,

Counsel for Petitioner,

18 Tremont Street,

Boston, Massachusetts 02108

(617) 523-1105 |

July, 1980

APPENDIX.

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

FRANCIS J. BURNS,

Plaintiff

CIVIL ACTION NO.

Vv. 78-15 32-C

JAMES LEO SULLIVAN, ET AL,

Defendants

ORDER

June 29, 1979

CAFFREY, Ch. J.

In accordance with the memorandum

filed this date, it is ORDERED:

The defendants' motion for summary

judgement is allowed. Judgement for the

defendants.

Andrew A. Caffrey, Ch.Jd.

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

FRANCIS J. BURNS,

Plaintiff

CIVIL ACTION NO.

Ve 78-15 32-C

JAMES LEO SULLIVAN, ET AL,

Defendants

MEMORANDUM

June 29, 1979

CAFFREY, Ch. Jd.

This action is brought pursuant to

42 U.S.C. 881983 and 1985(3) for

alleged violations of plaintiff's con-

stitutional rights. The matter is now

before the court for consideration of

defendants' motion to dismiss.

Plaintiff Burns is a police officer

employed by the City of Cambridge,

Massachusetts. In October 1973 a civil

service examination was administered to

110 individuals, including Burns, who

wished to be considered for promotion to

the rank of sergeant in the Cambridge

Police Department. In April 1974 on the

basis of the exam results the Director

of Civil Service, Commonwealth of Massa-

chusetts established a list of seventy-

three persons eligible for promotion to

the rank of Sergeant. The names were

listed according to the scores achieved

with the name of the man scoring highest

in first place. Burns' name appeared

ninth on that list.

In July 1974 five black patrolmen

filed suit in United States District

Court (Kantor v. Sullivan, C.A. No. 74-

2662-T) against numerous State and City

officials alleging that the hiring and

promotional procedures followed by the

Cambridge Police Department were racially

Giscriminatory. All parties in that

controversy agreed that no individual

whose name appeared on the eligibility

list would be promoted to the rank of

sergeant until the Kantor suit was re-

solved.

In June 1975 a consent decree was

entered in Kantor v. Sullivan. Under

the terms of that decree twenty-eight

men were to be selected for promotion to

the rank of sergeant.

In accordance with the terms of the

consent decree then Chief of Police Pisani

requested that the Massachusetts Division

of Civil Service provide him with the

names of the applicants who were eligible

for the twenty-eight positions. He re-

ceived a list containing the names of the

top forty men on the original list and

was directed to choose twenty-eight

from among those forty.

On July 3, 1975 Burns was notified

that he had not been promoted and that

he had been passed in favor of twenty-

two men including three black men whose

names had appeared below his on the eli-

gibility list.

ee \,

Under Massachusetts law an appointing

2 |

authority electing to by-pass an indivi-

dual for promotion must state its reason

for so doing. Mass. Gen. Laws Ch. 31,

1. Nothwithstanding the fact that Chief

Pisani was provided with forty names,

plaintiff attaches some significance to

his allegation that it had been the

practice of the appointing authority for

twenty-five years to promote patrolmen

to the rank of sergeant according to the

order in which their names appeared on

the eligibility list.

2. In the case at bar the appointing

authority consisted of the Chief of

Police and the defendant City Manager

James L. Sullivan.

B15C. In the case at bar Chief Pisani

stated in writing that the twenty-two

men who had been selected over Burns for

promotion were "better qualified". The

twenty-eight names selected had also

been approved by City Manager James L.

Sullivan before they were submitted to

and approved by the Civil Service Person-

nel Administrator.

Burns alleges that the conclusion of

the Chief of Police and City Manager as

approved by the personnel administrator

that twenty-two others were "better

qualified" than he was arbitrary, capri-

cious and unsupported by plaintiff's

record as a police officer and that it

was not based on fact or any reasonable

objective standard of comparison.

3. The provisions of 815C have been

substantially duplicated in the present

Mass. Gen. Laws ch. 31 827.

It is plaintiff's contention that he

was denied promotion because he belongs

to three classes which are defined by

invidious criteria

1) White patrolmen in the Cambridge

Police Department

2) Active and vocal white members of

the Cambridge Patrolmen's Asso-i

ciation

3) White patrolmen in the Cambridge

Police Department who have been

outspoken with regard to admini-

stration and management politics

of the Cambridge Police Depart-

ment to people outside of the

department

Plaintiff alleges that a conspiracy

existed between Chief aes City Manager

James L. Sullivan and others to promote

three black patrolmen to the rank of

sergeant and that to accomplish the

purpose of that conspiracy it was neces-

sary to pass over several white patrolmen

4, Chief Pisani died before this action

was filed and thus is not a defendant

herein.

who had achieved higher scores on the

competitive exam. Plaintiff further

alleges tha@ in order to determine who

among the white patrolmen would not be

promoted the City Manager and Chief of

Police considered membership in the

second two classes set forth above. It

is plaintiff's contention herein that

he was denied equal protection of the law

as guaranteed by the fourteenth amendment

in violation of 42 U.S.C. 881983 and

1985(3) when his race became a disposi-

tive factor in his failure to be promoted.

Plaintiff also contends that defendant

James L. Sullivan further violated Sec-

tion 1983 when he acted under color of

state law to penalize Burns for exercis- |

ing his constitutionally guaranteed

right of free speech and deprived plain-

tiff of his promotion and the exercise

of free speech without due process of law.

The only allegations against defen-

dant City Councilor Walter J. Sullivan

relate to the time period after plain-

tiff had been skipped for promotion.

Burns alleges that Walter J. Sullivan

acting individually and in conspiracy

with City Manager James L. Sullivan

warned plaintiff that public discussion

of the matter would jeopardize his

chances of promotion to the rank of ser-

geant before the eligibility list expired.

Plaintiff further alleges that the re-

peated warnings from defendant City

Councilor Walter Sullivan had a chilling

effect on plaintiff's first amendment

rights.

Defendants James L. Sullivan and

Walter J. Sullivan move herein to dismiss

the complaint. However since affidavits

and depositions will be considered in

its determination, the court will treat

10a

defendants' motion as a motion for summary

judgement.

The court recognizes at the outset

that the position of police sergeant is

a position of considerable responsibility

and thus that the latitude of discretion

afforded to those involved in the selec-

tion process must necessarily be broad.

See, DiPiro v. Taft 584 F.2d ] (lst Cir.

1978), petition for cert. filed, 47 U.S.

L.W. 3436 (U.S. Dec. 15, 1978) (No. 78-

967). When the State legislature enacted

Mass. Gen. Laws ch. 31 815C it recognized

that some degree of discretion in the

appointing authority was necessary to

insure that the most suitable applicant

would fill the vacancy. It is clear

therefore that Chief Pisani and City

Manager Sullivan were expected to exercise

their discretion in selecting twenty-

eight candidates from the top forty names

lla

on the list for promotion to the rank of

sergeant.

Where a city or state official's

judgement and discretion is involved in

an action under Section 1983 the plain-

tiff must show that each official person-

ally participated in depriving plaintiff

of a constitutional right, Maiorana v.

McDonald, Nos. 78-1424, 78-1425 (lst Cir.

April 18, 1979); Kostka v. Hogg 560 F.2d

37 (lst Cir. 1977) and that the acts of

each were purposefully discriminatory

Gaffney v. Silk 488 F.2d 1248, 1250 (lst

Cir. 1973) or at least knowing and reck-

less Harrison v. Brooks 446 F.2d 404

(1971).

To succeed at trial on his equal

protection claim therefore Burns must

show that defendant City Manager James

L. Sullivan acted individually or as part

of a conspiracy to purposely deny

l2a

plaintiff a promotion to the rank of

sergeant on the basis of his race or

because of the exercise of his consti-

tutionally guaranteed free speech.

Defendant's motion to dismiss is

supported by the affidavit of defendant

City Manager James L. Sullivan in which

the City Manager states under oath that

he has never acted or conspired with

any person to deny plaintiff a promotion

to police sergeant because he was a

white man and that he has never conspired

and agreed that certain black patrolmen

would be promoted.

To counter the affidavit of City

Manager Sullivan, plaintiff presents

several pages of the deposition of Beryl

Cohen, attorney for the black patrolmen

in Kantor v. Sullivan. Mr. Cohen's

testimony establishes for purposes of

this motion that in addition to the

13a

terms of the consent decree in the Kantor

case, Mr. Cohen received an oral promise

that three of the black patrolmen he

represented would be promoted. Mr. Cohen

also stated however that he does not re-

call whether defendant James L. Sullivan

was aware of that agreement.

It is the opinion of this court

however that even if plaintiff had evi-

dence which established that the City

Manager was privy to such an agreement,

such evidence would not be enough to

support plaintiff's allegation that

he was a victim of racial discrimination.

Two of the black patrolmen who were

promoted to the rank of sergeant were

among the top twenty-eight names on the

eligibility list. Therefore even if

the appointing authority had simply

promoted the men in the top twenty-eight

lua

slots as plaintiff argues had been its

practice for twenty-five years, black

patrolmen Kantor and Benson would still

have been promoted to the rank of ser-

geant. Additionally, plaintiff cannot

argue that the appointing authority went

down on the list solely to effectuate the

alleged deal with Mr. Cohen since the

lowest person on the list to be promoted

was number thirty-one, patrolman McDevitt,

a white man. © It is also pertinent that

nineteen of the twenty-two men who by-

passed plaintiff were white men. The

existence of the alleged deal between Mr.

Cohen and the defendant City Manager

therefore would not support plaintiff's

allegation that the decision not to

5. Patrolmen Kantor and Benson appeared

as numbers 20 and 27 respectively on the

eligibility list.

6. The third black patrolman to be promo-

ted was Patrolman EP TEL who —-

thirtieth on the eligibility list.

15a

promote him was based on a consideration

of his race.

Assuming for purposes of this motion

however that the agreement to promote

three black men was a substantial

factor in the decision to skip over the

names of three white men whose names

were higher on the list, plaintiff argues

that he was one of the three chosen to

be skipped because in addition to being

white he had exercised his constitution-

ally guaranteed right of free speech as

an active member of the v ion by criti-

cizing the administration and management

of the Cambridge Police Department to

persons outside the department.

The uncontradicted affidavit of James

L. Sullivan, the City Manager states that

he has never acted or conspired with any

person to deny plaintiff a promotion to

the rank of sergeant because he was a

16a

vocal active white member of the Cambridge

Patrolmen's Association or because he was

critical of the administration and man-

agement of the Cambridge Police Depart-

ment to persons outside the department.

Defendant James L. Sullivan further states

under oath that he was never present at

any union meeting at which plaintiff

spoke nor had he ever heard plaintiff

make any statement involving the admini-

stration or management of the Cambridge

Police Department nor had he knowledge of

any such critical statements. The City

Manager further deposes that he never

took any action adverse to plaintiff due

either to his police union membership

or any statements made by him at union

meetings or elsewhere. When deposed

plaintiff readily conceded that he has

no information that union activity was

an important consideration in the selection

17a

process and that at least one other white

man active in the union was among the

twenty-eight promoted to the rank of

sergeant. In addition, plaintiff points

to no statement which was critical of

the department's management or admini-

stration. In fact plaintiff states that

he had a good working relationship with

Chief Pisani and thought that he was

doing an excellent job. It would appear

therefore that plaintiff in the face of

City Manager Sullivan's affidavit is un-

able to point to evidence which raises

a question of material fact as to the

free speech allegations set forth in his

complaint.

While we believe that the plain-

tiff is entitled to all favorable

inferences, he is not entitled to

build a case on the gossamer threads

of whimsey, speculation and conjec-

ture.

Hahn v. Sargent, 523 F.2d 461, 467 (1st

18a

Cir. 1975), cert. denied 425 U.S. 904

(1976), (quoting Manganaro v. Delaval

Separator Co., 309 F.2d 398, 393 (lst Cir.

1962). As to plaintiff's equal protection

claims against City Manager James L.

Sullivan, which relate to events occur-

ring on or before July 5, 1975 therefore,

I rule that defendant should be granted

summary judgement.

Having in mind that only those indi-

viduals who are being deprived of a prop-

erty or liberty interest are entitled

to due process of law Bishop v. Wood 426

U.S. 341 (1976), Board of Regents v. Roth

408 U.S. 564 (1972), the court turns

next to plaintiff's claim that the

actions of James L. Sullivan deprived him

of a promotion to the rank of sergeant

and the exercise of his right of free

speech without procedural due process.

19a

It is clear that plaintiff had no

property interest in the promotion to the

rank of sergeant. Plaintiff's interest

here is created by state law and the law

of Massachusetts confers no property

rights on an individual whose name appears

on a civil service eligibility list for

promotion since, as discussed above, the

ultimate selection is left to the discre-

tion of the appointing authority.

Additionally plaintiff argues that

he was deprived of a liberty interest

without due process when he was penalized

for exercising his right to free speech.

As had already been seen however, plain-

tiff's allegations that the selection was

based on the exercise of free speech are

premised upon his own conjecture and not

Supported by evidence.

7. Whether or not the requirements of

Mass. Gen. Laws ch. 31 815C were satisfied

the words "better qualified" is a ques-

tion of state law without federal signifi-

cance.

20a

It is well settled in this circuit

that local government personnel decisions

even if clearly erroneous do not achieve

constitutional dimensions unless an

intentional deprivation of a constitu-

tional right has occurred DiPiro v. Taft,

supra. In addition the Supreme Court has

ruled that "([t]Jhe due process clause of

the fourteenth admendment is not a guaran-

tee against incorrect or ill advised per-

sonnel decisions." Bishop v. Wood, supra

at 349-50. I rule therefore that as to

plaintiff's claim against defendant James

L. Sullivan for denial of due process

summary judgement should be entered for

the defendant.

Plaintiff next argues that he was

denied his constitutionally guaranteed

right of free speech after July 5, 1975

as a result of the acts of City Councilor

Walter J. Sullivan who acted individually

2la

and in conspiracy with City Manager James

L. Sullivan. Plaintiff alleges in his

complaint that after his name has been

passed over he sought the assistance of

Walter J. Sullivan and was warned by the

City Councilor that any hope of future

promotion from the list would be jeopar-

dized by public discussion of the matter

and that plaintiff should keep a low pro-

file and not hire an attorney.

The affidavits of Walter J. and

James L. Sullivan deny the existence of

such a conspiracy and state that no action

was taken to prevent plaintiff from

dissussing the promotions from the

eligibility list. In addition, plaintiff

testified at his deposition that he had

no knowledge that the warnings from

Walter Sullivan were made in bad faith

and that despite those warnings he spoke

to numerous City officials, participated

22a

vocally in at least one union meeting

and hired a lawyer. Plaintiff also

testified that oftentimes his reason

for not speaking out was a fear that his

words would be misinterpreted or taken

out of context. In addition the advice

which plaintiff was simultaneously

receiving from his attorney was similar

to that given him by Walter Sullivan.

It is apparent therefore that plain-

tiff has no evidence that Walter J.

Sullivan acted to intentionally deprive

him of his constitutional guaranteed

rights or that he was so deprived. De-

fendants Walter J. Sullivan and James L.

Sullivan are therefore entitled to summary

judgement as to the claims relating to

the time period following July 5, 1975.

Andrew A. Caffrey, Ch. J.

23a

United States Court of Appeals

For the First Circuit

No. 79-1424

FRANCIS J. BURNS,

PLAINTIFF-APPELLANT,

JAMES LEO SULLIVAN, ET AL.,

DEFENDANTS-APPELLEES.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Anprew A. Carrrey, U.S. District Judge)

Before Corrin, Chief Judge,

CaMPBELL and Bowngs, Circuit Judges.

John A. Moos, with whom Richard L. Zisson and Zisson ¢& Veara

were on brief, for appellant.

Kenneth A. Behar, with whom Edward D. Kalman, Barbara J.

Sproat and Behar & Kalman were on brief, for appellees.

Francis X. Bellotti, Attorney General, with whom John F.

Hurley, Assistant Attorney General, was on brief, for Personnel

Administrator for the Division of Personnel Administration for

the Commonwealth of Massachusetts, appellee.

March 31, 1980

Bowness, Circuit Judge. Plaintiff-appellant, Francis J.

Burns, a white policeman employed by the City of Cam-

bridge, Massachusetts, brought suit in June of 1978 against

James L. Sullivan, City Manager of Cambridge, Walter J.

Sullivan (not related to James L.), a Cambridge city coun-

cilor, and Walter Kountze, Personne] Administrator of the

BURNS V. SULLIVAN

24a

Division of Civil Service of the Commonwealth of Massa-

chusetts.1 Burns alleged that the defendants had violated

his constitutional] rights in July of 1975 by promoting over

him to the rank of sergeant twenty-two other applicants,

including three blacks, whose names appeared below his on

the civil service eligibility list for promotion. After con-

sidering the pleadings, affidavits from the defendants and

depositions from others, the district court granted the

motion of the defendants Sullivan for summary judgment.

On appeal, Burns contends the district court erred in

granting summary judgment on his claims that he (1) was

denied due process by the promotion rating system ratified

by James L. Sullivan; (2) was denied equal protection by

James L. Sullivan’s decision to promote three blacks,

among others, over him; and (3) suffered violation of his

first amendment rights because of the advice he sought and

received from Walter J. Sullivan subsequent to his non-

promotion.

We affirm the district court’s findings that Burns was

not deprived of due process of law by the promotion pro-

cedure used by Cambridge and that Walter J. Sullivan did

not violate Burns’ first amendment rights. We also find

that, since the applicable Massachusetts racial] discrimi-

nation statute of limitations expired long before Burns

filed suit, the district court lacked jurisdiction to hear

Burns’ equal protection claim.

The Facts

In October, 1973, one hundred ten Cambridge policemen

seeking promotion to sergeant took a written civil service

1 Burns agreed to Kountze’s motion to be designated a nominal

party pursuant to DeLuca v. Sullivan, 450 F. Supp. 736, 741 (D.

Mass. 1977). Kountze subsequently resigned as Personnel Adminis-

trator and was succeeded by David Marchand, who was auto-

anh substituted for Kountze as a defendant. Fed.R.Civ.P.

(d)(1).

OPINION OF THE COURT.

25a

examination to determine eligibility for promotion. In

April, 1974, the Director of Civil Service of the Common-

wealth promulgated a list of seventy-three persons deter-

mined on the basis of the examination results to be eligible

for promotion.? The list ranked applicants from highest

to lowest according to their score on the examination; Burns

ranked ninth.

In July, 1974, five black Cambridge policemen filed suit

alleging racial discrimination in the hiring and promotional

procedures of the Cambridge Police Department. See

Kantor v. Sullivan, C.A. No. 74-2662-T (D.Mass.). A con-

sent decree entered into in June of 1975 to resolve that suit

provided that twenty-eight persons on the eligible list

would be promoted to sergeant. Shortly thereafter, Cam-

bridge Police Chief Pisani? requested the names of eligible

applicants from the Massachusetts Department of Civil

Service and received the names of the top forty persons on

the list, as well as instructions authorizing him to interview

the ‘‘proposed appointees.’’*

Chief Pisani subsequently conducted brief interviews with

the forty remaining applicants, rating each on the basis of

attitude and loyalty, judgment, leadership and supervisory

abilities, initiative and resourcefulness and technical skills.

By combining this oral examination score (on which Burns

ranked thirty-seventh) with the scores from the written

2Under Massachusetts civil service law, the Director of Civil

Service was the appointing authority for municipal as well as state

civil servants. See Mass. Gen. Laws Ann. ch. 31, §§ 1 et seg. The

Division of Civil Service was abolished in 1975 and replaced by a

eer for the Commonwealth. See 1974 Mass.

ets ch. 835.

3 Chief Pisani died prior to the initiation of this suit and, accord-

ingly, was not named as a defendant.

*A 1974 study of the Cambridge Police ‘Department by the

International Association of Chiefs of Police criticized the Depart-

ment’s ‘‘abdication’’ of applicant evaluation to the State Civil

Service Commission and recommended that the Department conduct

oral interviews as part of the promotion process.

BURNS V. SULLIVAN

26a

examination (on which Burns ranked ninth), Chief Pisani

apparently created a new score by which he ranked the

forty applicants.® The names of the twenty-eight persons

with the highest scores were sent to and approved by City

Manager Sullivan. The Personnel Administrator of the

Commonwealth approved the appointments in July of 1975.

Three persons listed among the top twenty-eight applicants

on the original promotion eligibility list, including Burns,

were not promoted to sergeant. The twenty-two persons

promoted over Burns included three black policemen who

were plaintiffs in Kantor. One of the black policemen,

Herbert E. Halliday, ranked thirtieth on the origina) eligi-

bility list. Pursuant to Massachusetts law,® which requires

an explanation under such circumstances, City Manager

5 It is not clear what formula, if any, Chief Pisani used to select

the final twenty-eight appointees. A formula giving equal weight

to the oral and written examinations ranked Burns higher than

Terramacco, who was promoted to sergeant. The three other

promotees who ranked below the first twenty-eight applicants on

the list that gave equal weight to the oral and written examinations

were Kantor, Benson and Halliday, three of the black plaintiffs in

Kantor v. Sullivan. See Exbibit B-2, Burns v. Sullivan, C.A.

No. 78-1532-C (D. Mass.). One possible explanation for the promo-

tion of these four persons is that Chief Pisuni used a formula

giving a weight of ten percent to the applicant’s potential for

future promotion, as recommended by the 1974 report of the

International Association of Chiefs of Police (IACP). However,

we find no mention of this formula in Chief Pisani’s records or

in the affidavits of City Manager Sullivan. Moreover, we note

that, although Chief Pisani followed the LACP recommendation

as to interviews, he chose to conduct the interviews by himself

rather than have them performed by a three-person board, as

recommended by the IACP. Then, as now, Massachusetts law re-

quired ora] interviews to be given by a three-person board. See

Mass. Gen. Laws Ann. ch. 31, § 10 (1973), now codified at ch. 31,

§ 16. Another possible explanation for the promotion list used is

that, as alleged by Burns, the promotion of some of the black

plaintiffs in Kantor was an unwritten part of the Kantor settle-

ment decree.

® Mass. Gen. Laws Ann. ch. 31, §15(c), now codified at Mass.

Gen. Laws Ann. ch. 31, § 27.

OPINION OF THE COURT.

27a

Sullivan stated that the reason for appointing the twenty-

two persons not ranked highest on the original eligibility

list was that the appointees were ‘‘better qualified.’’ The

Personnel Administrator accepted this explanation in mak-

ing the appointments.

Burns became aware on July 3, 1975, that he had been

passed over for promotion. Under Massachusetts law, he

had two statutory avenues of appeal from this decision.

Massachusetts civil service law provides an automatic right

of appeal to the Civil Service Commission for persons un-

successful in gaining appointment or promotion. Mass.

Gen. Laws Ann. ch. 31, § 2(b).” See Goldblatt v. Corporation

Counsel, 360 Mass. 660, 662, 277 N.E.2d 273, 277 (1971).

This remedy is limited by Civil Service Rule 33, which

permits the Civil Service Commission to refuse to hear

appeals filed more than thirty days after the Director’s

decision.® Judicial review of the Commission’s decision

may be sought by writ of certiorari to the Massachusetts

Supreme Judicial Court. Goldblatt v. Corporation Counsel, :

supra. The second avenue open to Burns was the filing

of a complaint of racial discrimination in employment

pursuant to the Massachusetts antidiscrimination statute.

7 Mass. Gen. Laws Ann. ch. 31, § 2(b) provides in pertinent part:

In addition to other duties imposed by this chapter and

chapter thirteen the commission shall—

(a) Make investigations at its own discretion, or

whenever requested in writing by the governor, the council,

the general court or either branch thereof, the director, an

aggrieved person, or by ten registered voters.

(b) Hear and decide all appeals from any decision

or action of, or failure to act by, the director, upon application

of a person aggrieved thereby[.]

® Mass. Civil Service Rule 33 provides:

1. The Commission may decline to entertain any appeal

from any decision of the Director not received within thirty

days of the date of the giving of notice by the Director to

the appellant, or in cases of appeals regulated by statute

within any lesser period provided therein.

BURNS UV. SULLIVAN

28a

Mass. Gen. Laws Ann. ch. 151B, § 5.° Such a complaint,

if filed within six months of the act of discrimination,

precipitates an investigation and, if warranted, corrective

action by the Massachusetts Commission Against Discrimi-

nation (MCAD). Judicial review of the actions of the

MCAD is available by appeal to the Superior Court and

then to the Supreme Judicial Court. Mass. Gen. Laws Ann.

ch. 151B, § 6. See East Chop Tennis Club v. Mass. Comm’n

Against Discrimination, 364 Mass. 444, 305 N.E.2d 507

(1973).

® Mass. Gen. Laws Ann. ch. 151B, § 5 provides in pertinent part:

Any person claiming to be aggrieved by an alleged unlaw-

ful practice... may... file with the commission a verified

complaint in writing which shall state the name and address

of the person, employer, labor organization or employment

agency alleged to have committed the unlawful practice com-

plained of . . . which shall set forth the particulars thereof

and contain such other information as may be required by the

commission.

After the filing of any complaint, the chairman of the

commission shall designate one of the commissioners to make,

with the assistance of the commission’s staff, prompt investi-

gation in connection therewith. If such commissioner shall

determine after such investigation that no probable cause

exists for crediting the allegations of the complaint, the

commission shall, within ten days from such determination,

cause to be issued and served upon the complainant written

notice of such determination, and the said complainant or

his attorney may, within ten days after such service, file with

the commission a written request for a preliminary hearing

before the commission to determine probable cause for credit-

ing the allegations of the complaint, and the commission shall

allow such request as a matter of right; provided, however.

that such a preliminary hearing shall not be subject to the

provisions of chapter thirty A. If such commissioner shal]

determine after such investigation or preliminary hearing

that probable cause exists for crediting the allegations of the

complaint, he shall immediately endeavor to eliminate the

unlawful practice complained of .... After a determination

of probable cause hereunder such commissioner may also file

a petition in equity in the superior court.... Any complaint

filed pursuant to this section must be so filed within six months

after the alleged act of discrimination.

OPINION OF THE COURT.

29a

Burns elected ‘o pursue neither of these alternatives.

Instead, he contacted Councilor Sullivan, in part to ask his

advice and in part to use him to pressure City Manager

Sullivan, who served at the pleasure of the City Council,

to promote him to sergeant. Councilor Sullivan advised

Burns not te cause a controversy and not to hire a lawyer.

Two days later, Burns retained counsel. Burns’ attorney

also advised Burns not to cause a controversy over his

nonpromotion. Burns followed that advice, taking no legal

action until the filing of this suit on June 28, 1978, nearly

three years after the announcement of the promotion list.’

The Due Process Claim

Burns contends it was error for the district court to grant

summary judgment on his claim of denial of due process

because of the failure of Cambridge City Manager Sullivan

and Police Chief Pisani to follow procedures mandated by

Massachusetts civil service law. Although we agree that the

Cambridge Police Department procedures for the 1975

sergeant promotion were irregular, see note 5, supra, we

find no error in the district court’s ruling that these

irregularities are not constitutionally significant.

The requirements of procedural due process apply only

to the deprivation of interests encompassed by the four-

teenth amendment’s protection of liberty and property.

Board of Regents v. Roth, 408 U.S. 564, 569 (1972) ; Vente-

tuolo v. Burke, 596 F.2d 476 (1st Cir. 1979). Burns asserts

no deprivation of a liberty interest, but argues that the

placing of his name on the original eligibility list for

promotion and the historic Cambridge Police Department

practice of promoting directly from that list gave rise to a

property interest. Despite the fact that the property in-

_% A case upon which Burns relies heavily, Regents of the Univer-

sity of California v. Bakke, 438 U.S. 265 (1978), was decided the

same day he filed this suit.

BUENS UV. SULLIVAN

terests protected by the Due Process Clause include inter-

ests secured by ‘‘existing rules or understandings,’’ Perry

v. Sindermann, 408 U.S. 593, 601 (1972), and that some

aspects of the Massachusetts civil service system may

arguably create property interests, Lavash v. Kountze,

604 F.2d 163 (1st Cir. 1979) (question of property interest

in position on eligibility list left undecided), we do not

think Burns possessed a property interest in promotion to

sergeant.

Massachusetts civil service law provides that most civil

service appointments must be made from an eligibility list

established as a result of a competitive examination. Mass.

Gen. Laws Ann. ch. 31, § 6. Burns took a written competi-

tive examination for promotion to sergeant, placing ninth.

If Chief Pisani and City Manager Sullivan had selected

the twenty-eight promotees from that list, Burns may well

have enjoyed a protected right to promotion. However,

Massachusetts law also permits oral and practical exami-

nations to be given in conjunction with written examina-

tions. Mass. Gen. Laws Ann. ch. 31, § 10 now codified at

ch. 31, § 16. If, because of the results of any such additional

examinations, or the consideration of other factors, such

as experience, Mass. Gen. Laws Ann. ch. 31, § 22, the

promoting authority decides to promote persons whose

rank on the original eligibility list is lower than that of

persons who are not promoted, the promoting authority

must state the reasons for deviating from the order of the

eligibility list. Mass. Gen. Laws Ann. ch. 31, § 15(c), now

codified at ch. 31, § 27. Chief Pisani and City Manager

Sullivan exercised the option provided by Massachusetts

civil service law and considered the results of an oral

examination and possibly other factors. The Personnel

Administrator accepted City Manager Sullivan’s statement

that the twenty-two persons promoted over Burns and

others were ‘‘better qualified.’’ Thus, while Burns may

OPINION OF THE COURT.

31a

have had certain expectations as a result of his rank on

the eligibility list, any such expectations were substantially

diminished by the ability under state law of Chief Pisani

and City Manager Sullivan to consider subjective factors

in addition to the written examination score. In light of

the qualified nature of these expectations, we find that

Burns’ interest in becoming a sergeant did not rise to the

level of a property interest entitled to constitutional pro-

tection. See Bishop v. Wood, 426 U.S. 341, 345 & n.8 (1976).

Having found that there is no substantive property interest

in the promotion there is no need for us to examine

further Burns’ claim that the procedures actually followed

were not such as state law required. Cf. Slotnick v. Stavis-

key, 560 F.2d 31, 34 (1st Cir. 1977), cert. denied, 494 US.

1077 (1978) (that state law requires certain procedures

does not give those procedures a federal constitutional

dimension).

The Equal Protection Claim

In response to Burns’ suit, the defendants Sullivan

pleaded specific denials and affirmative defenses, including

expiration of the statute of limitations. Fed.R.Civ.P. 8(c).

Although the district court did not reach the issue of tolling

of the statute of limitations, we do. We agree with the

defendants that, under the most analogous state statute,

time had run on Burns’ claim of denial of equal protection.

The question is the applicable Massachusetts statute of

limitations. Since the Civil Rights Acts have no limitations

provisions, ‘‘the common law, as modified and changed by

the constitution and statutes of the State wherein the court

having jurisdiction . . . is held, so far as the same is not

inconsistent with the Constitution and laws of the United

States shall be extended to and govern... causes’’ brought

under the Acts. 42 U.S.C. § 1988. This mandated adoption

of state law comports with the general federal policy of

BURNS UV. SULLIVAN

32a

recognition and use of a state statute of limitations when

the federal] statute contains none. See, e.g., Chattanooga

Foundry v. Atlanta, 203 U.S. 390 (1906) (Sherman Anti-

trust Act); Campbell v. Haverhill, 155 U.S. 610 (1895)

(patent infringement) ; Hayden v. Oriental Mills, 15 F. 605

(1st Cir. 1883) (patent infringement). It is now well estab-

lished that the federal courts will look to the state statute

or remedy ‘‘most analogous’’ to the particular civil rights

cause of action to determine the time limitation under the

Civil Rights Acts. Ruynon v. McCrary, 427'U.S. 160, 180

(1976); Ramirez de Arellano vy. Alvarez de Choudens, 575

F.2d 315, 318 (1st Cir. 1978). Generally, the applicable

statute of limitations is that which the state would,enforce

had an action seeking similar relief been brought in state

court. Swan v. Board of Higher Education, 319 F.2d 56, 59

(2d Ci> 1963) (Marshall, J.). The ‘‘most analogous”’

state law will be applied unless it is ‘‘inconsistent with the

federal policy underlying the cause of action under con-

sideration.’’ Johnson v. Railway Express Agency, Inc.,

421 U.S. 454, 465 (1975). Cf. Robertson v. Wegmann, 436

U.S. 584 (1978) (Louisiana survivorship statute applied

to Section 1983 suit, resulting in abatement of action be-

cause of death of plaintiff). See also Johnson vy. Davis,

582 F.2d 1316 (4th Cir. 1978) (one year Virginia statute

of limitations for federal civil rights actions discriminates

unreasonably against federal rights where similar state

rights protected by longer statutes of limitations).

Determination of the applicable state statute of limita-

tions requires consideration of four questions: (1) the

nature of the federal cause of action, see Davis v. United

States Steel Supply, 581 F.2d 335, 337 (3d Cir. 1978):

(2) the analogous state causes of action; (3) the state

statutes of limitations for those causes of action; and

(4) which of the state statutes of limitations is tne most

appropriate under federal law, see Johnson v, Railway

OPINION OF THE COURT.

33a

Express Agency, Inc., 421 U.S. at 462 n.7. See generally

Ware v. Colonial Provision Co., Inc., 458 F. Supp. 1193,

1194-95 (D.Mass. 1978).

Burns premised his suit on 42 U.S.C. §§ 1983 and 1985(3).

The district court properly characterized his action as

alleging denial of equal protection in the form of racial

discrimination by a public entity.

When Burns was passed over for promotion, he had

available to him two analogous state causes of action. He

had an automatic right of appeal within the state civil

service system in which he could have alleged failure to

follow state civil service law. Mass. Gen. Laws Ann. ch. 31,

§ 2(b). This cause of action expired in thirty days. Mass

Civil Service Rule 33. The second cause of action was a

specific complaint of racial discrimination which had to be

filed with the Massachusetts Commission Against Discrimi-

nation within six months of his nonpromotion. Mass. Gen.

Laws Ann. ch. 151B.

We are aware that three separate district court decisions

in the District of Massachusetts have held that actions

under the Civil Rights Act sound in tort and, therefore,

the Massachusetts general tort statute of limitations should

be applied. Ware v. Colonial Provision Co., Inc., 458 F.

Supp. 1193; DeLuca v. Sullivan, 450 F. Supp. 736 (D.Mass.

1977) ; Holden v. Boston Housing Authority, 400 F. Supp.

399 (D.Mass. 1975). While we often defer to district court

interpretations of state law, we find these decisions are not

conclusive in this case.

In Ware and Holden, the question was whether the case

was controlled by the six-year statute of limitations for

contracts or the two-year tort statute." No other Massa-

chusetts statutes of limitations were considered. Ware in-

volved a suit for racial discrimination in hiring and dis-

11 The general tort statute of limitations was increased to three

years by 1973 Mass. Acts ch. 777, § 1.

BURNS U. SULLIVAN

34a

charge brought against a private employer under 42 U.S.C.

§ 1981. The more analogous statute of limitation was

found to be the one governing tort actions. In Holden,

no mention was made of the more specific remedy for

wrongful discharge of a public employee: a writ of manda-

mus filed with the Supreme Judicial Court within six

months of the discharge. Mass. Gen. Laws Ann. ch. 31,

§ 46A.% Consequently, we think Ware and Holden must

be limited to the statutes of limitations actually considered.

In DeLuca v. Sullivan, the same court that heard Burns’

suit held that the action of other officers passed over in

the 1975 Cambridge Police Department sergeant promotion

was not barred by expiration of the thirty-day civil service

statute of limitations. DeLuca v. Sullivan, 450 F. Supp.

at 738. The court’s principal rationale was not that the

statute was not the ‘‘most analogous,’’ but, rather, that so

short a period of time ‘‘fails to correspond to the needs

of civil rights plaintiffs to have available a reasonable

period of time in which to have access to the federal courts.’’

Id. The court also relied on what it perceived to be this

circuit’s rule that the then two-year Massachusetts tort

statute of limitations must be applied to civil rights

actions.“ We consider these reasons in reverse order.

Although we have consistently held that civil rights

actions brought by dismissed or mistreated employees sound

in tort rather than in contract, Ramirez de Arellano v.

Alvarez de Choudens, 575 F.2d 315, 318 (1st Cir. 1978);

Graffals Gonzalez v. Garcia Santiago, 550 F.2d 687 (1st

Cir. 1977), we have never indicated that a general tort

122 This remedy is now codified at Mass. Gen. Laws Ann. ch. 31,

§ 42.

13 Mass. Gen. Laws Ann. ch. 260, § 2A now provides:

Except. as otherwise provided, actions of tort, actions of

contract to recover for personal injuries, and actions of

replevin, shall be commenced only within three years next

after the cause of action accrues.

OPINION OF THE COURT.

35a

statute of limitations is automatically to be used in place

of limitations contained in state statutes specifically tail-

ored to deal with the plaintiff’s cause of action. See, e.g.,

Ramirez de Arellano v. Alvarez de Choudens, 575 F.2d

at 318 (Puerto Rico statute regulating political discharge

of employees more analogous than general tort statute,

but contained no specific statute of limitations). Determi-

nation of the ‘‘most analogous’’ state statute requires a

careful analysis of state law.

While we see merit in the DeLuca court’s reasoning

that civil rights plaintiffs may need more than thirty days

to file a civil rights complaint, we think a six-month limi-

tation reasonable. Although it may take more than six

months to properly prepare a civil rights case, a complaint

meeting the requirement of Fed.R.Civ.P. 8(a) can surely

be filed in that time. And amendments to the complaint and

supplemental pleadings may be sought after suit is brought.

Fed.R.Civ.P. 15. Moreover, if the plaintiff is required to

exhaust his state administrative remedies, a matter of

some dispute, see note 14 infra, his case will have already

been prepared and with little, if any, modification can easily

be filed within six months of the decision of the state agency.

There are important policy reasons for using the time

limitations of a state statute that protects the same rights

the plaintiff seeks to vindicate by resort to the federal Civil

Righs Acts. Assuming no requirement of exhaustion, a

rule providing a three-year statute of limitations will allow

state employees to bide their time and use the federal courts,

bypassing the state administrative proceedings. Two un-

fortunate results will follow. First, the general government

policy, observed at both the state and federal levels, of

prompt resolution of personnel disputes will be thwarted.

Second, without any showing that state administrative pro-

cedures will not provide the plaintiff with due process and

protect against constitutional violations, see Eisen v. East-

BURNS V. SULLIVAN

36a

man, 421 F.2d 560, 569 (2d Cir. 1969), cert. denied, 400 U.S.

841 (1970), the federal courts will become surrogate state

personnel departments.“ See Bishop v. Wood, 426 U.S.

341, 349-50 (1976); DiPiro v. Taft, 584 F.2d 1 (1st Cir.

1978), cert. demied, 440 U.S. 914 (1979).

Finally, the Massachusetts general tort statute of limi-

tations is clearly intended to be used in conjunction with

conventional tort, contract and replevin actions for which

there is no specific statute of limitations. While, in certain

circumstances, such conventional actions may be the ‘‘most

analogous’’ actions to civil rights actions, that is sc only

when the state has not prohibited by statute the deprivation

of the specific civil right at bar. Where, as here, the state

has provided a specific remedy, complete with statute of

limitations, for racia] discrimination in public employment

and promotion, actions under the federal Civil Rights Acts

alleging racial discrimination by the state must be governed

by that statute of limitations. In our view, although this

rule shortens considerably the time in which an aggrieved

person may bring a Section 1983 action for racial discrimi-

nation in public employment, it conflicts with no federal

14 Since we decide Burns’ claims on other grounds, we address

his failure to exhaust state administrative remedies only to the

extent necessary to note the unsettled state of the law in this area,

compare Gibson v. Berryhill, 411 U.S. 564, 574-75 (1973), with

Ellis v. Dyson, 421 U.S. 426, 432-33 (1975), and to observe that

the same strong reasons for recognizing state limitation of action

policies in personnel matters also argue for recognition of the

primacy of viable state personnel dispute resolution mechanisms.

See Wishart v. McDonald, 500 F.2d 1110, 1114, n.4 (1st Cir. 1974) ;

Dunham v. Crosby, 435 F.2d 1177, 1180-81 n.2 (1st Cir. 1970).

Sce also Etsen v. Eastman, 421 F.2d 560, 569 (2d Cir. 1969),

cert. denied, 400 U.S. 841 (1970) ; Comment, Exhaustion of State

Administraiwe Remedies in Section 1983 Cases. 41 U. Chi. L. Rev.

537 (1974). We note further that Title VII of the Civil Rights Act

of 1964, as amended, 42 U.S.C. § 2000e-5(c), requires persons

alleging racial discrimination in employment in a state that has

administrative mechanisms which can provide relief to give that

state system at least sixty days to provide such relief before pro-

ceeding under Title VII.

OPINION OF THE COURT.

policy and enhances the wlity of the state to resolve its

own personnel problems. The time period is no shorter

than the six-month period available to federal and state

employees under Title VII of the Civil Rights Act of 1964

for initiation of a complaint of racial discrimination in

employment. 42 U.S.C. § 2000e-5(e). See Brown v. General

Services Administration, 425 U.S. 220 (1976). In addition,

we note that the entire Massachusetts civil service system

is built upon a policy of prompt initiation and resolution of

public employee personnel actions. See, e.g., Report of

Special Committee on Civil Service Laws, Rules and Regu-

lations, 1930 House Doc. No. 1001 at 9; Brooks v. Registrar

of Motor Vehicles, 1 Mass. App. Ct. 78, 80, 294 N.E.2d 487,

489 (1973); see generally Mass. Gen. Laws Ann. ch. 31,

$$ 1 et seg. This rule gives a plaintiff six months from

either the date of the alleged act of discrimination or final

state administrative adjudication of the claim of discrimi-

nation to seek relief pursuant to Section 1983. Under this

statute of limitations, Burns’ equal protection claim ex-

pired in January of 1976.

The First Amendment Claim

Burns’ final contention on appeal, that the advice he

solicited from Councilor Sullivan restrained or chilled his

freedom of speech, is without a scintilla of merit. He volun-

tarily sought Councilor Sullivan’s advice and assistance

in pressuring the City Manager. Councilor Sullivan made

no threat; the advice was solicited, offered and accepted for

the purpose of achieving Burns’ promotion. See generally

Weiss v. Patrick, 453 F. Supp. 717 (D.R.I.), aff’d 588 F.2d

818 (1st Cir. 1978), cert. denied, 442 U.S. 929 (1979).

While Burns rejected Councilor Sullivan’s advice not to

hire an attorney, he accepted the advice of both his attorney

and Councilor Sullivan not to cause a controversy over

BURNS V. SULLIVAN

38a

his nonpromotion.* Burns strains credulity in contending

that he followed Councilor Sullivan’s advice and not that

of his attorney. Finally, even if Councilor Sullivan alone

had advised Burns, we know of no facts alleged in this

case that would take Councilor Sullivan’s actions outside

the public officials’ qualified, good faith immunity from

Civil Rights Acts damage liability. See Scheuer v. Rhodes,

416 U.S. 232, 238-49 (1974) ; Maiorana v. MacDonald, 596

F.2d 1072 (ist Cir. 1979). Im these circumstances, the

district court properly granted summary judgment as to

the claimed first amendment violation. Butz v. Economou,

438 U.S. 478, 508 (1978); Matorana v. MacDonald, 596

F.2d at 1077.

Affirmed.

157f Burns had not received similar advice from his attorney,

Councilor Sullivan’s advice still would not have given substance

to Burns’ first amendment claim, but it might have given Burns

some assistance in overcoming the statute of limitations. See

Dunham v. Crosby, 435 F.2d 1177, 1180 (1st Cir. 1970) (school

superintendent’s active discouragement of use of employee appeal

procedure by teacher and personal initiation of extra-statutory

procedures held to bar superintendent’s reliance on exhaustion. )

39a

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 79-1424,

FRANCIS J. BURNS,

Plaintiff, Appellant,

Vv.

JAMES LEO SULLIVAN, ET AL.

Defendant, Appellees.

JUDGMENT

Entered March 31, 1980

This cause came to be heard on appeal

from the United States District Court for

the District of Massachusetts, and was

argued by counsel.

Upon consideration whereof, It is now

here ordered, adjudged and decreed as

follows: The judgment of the district

court is affirmed.

By the Court:

Clerk.

40a

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

FRANCIS J. BURNS,

Plaintiff-Appellant,

No. 79-1424

Vv.

JAMES LEO SULLIVAN, ET AL,

Defendants-Appellees

Before Coffin, Chief Judge,

Campbell and Bownes, Circuit Judges.

ORDER OF COURT

Entered April 25, 1980

Appellant petitions for rehearing

on the issue of expiration of the six-

month statute of limitations which we

found applicable to his claim of racial

discrimination. In addition to contending

that a six-month statute of limitations

contravenes the policies underlying the

federal Civil Rights Acts, a matter we

decline to reconsider, Burns claims the

Yla

six-month period did not begin to run

until on or about May 23, 1978, and that

his equal protection suit was, therefore,

not time-barred. While we doubt that

petitioner's failure to raise this claim

in response to appellee's arguments on

the original hearing is adequately ex-

cused, we nevertheless reject it on its

merits.

The substance of Burns' petition is

an affidavit by Wayne A. Perkins, Esq.,

an attorney who represented another Cam-

bridge policeman in a connected case in

1978. ‘WThe affidavit states that Perkins

was told by Beryl Cohen, Esq., attorney

for the black plaintiffs in Kantor v.

Sullivan, that the Kantor Suit was dropped

in return for a promise that the black

Plaintiffs would be promoted to the rank

of sergeant. Perkins states further that

he informed counsel for Burns of Cohen's

42a

statement on or about May 23, 1978.

Burns argues that his cause of action did

not accrue until he received this infor-

mation. We disagree. Even assuming, as

Burns urges, that the statute of limita-

tions on his claim of racial discrimina-

tion did not begin to run until the time

he knew or should have known his cause

of action had accrued. see Cox v. Stanton,

529 F.2d 47, 50 (4th Cir. 1975), that

would be of no help to Burns here. Burns

knew on July 3, 1975, that he had been

passed over for promotion, and he should

have known shortly thereafter that four

persons, including the three black plain-

tiffs in Kantor, had been promoted over

him, although ranked below him on every

known merit list prepared by the City of

Cambridge. See Burns v. Sullivan, slip

op. at 4n.5. This information should

have been sufficient to alert Burns that

43a

several persons may have been promoted

over him solely because of their race.

If Burns had initiated his suit, or at

least an investigation, at that time, he

might have gained Perkins' information

from Attorney Cohen himself. We see no

leeway in the law for an aggrieved party

to wait an indeterminate period for his

cause of action to become more meritor-

ious, due to the discovery of important

facts, such as evidence of discriminatory

intent.

Petition for rehearing denied.

By the Court:

Clerk.

CONSTITUTION OF THE UNITED STATES

AMENDMENT VII.

Civil trials

In Suits at common law, where the

value in controversy shall exceed twenty

dollars, the right of trial by jury shall

be preserved, and no fact tried by a jury,

shall be otherwise re-examined in any

Court of the United States, than accord-

ing to the rules of the common law.

45a

CONSTITUTION OF THE UNITED STATES

AMENDMENT XIV.

81. Citizenship rights not to be

abridged by states

Section 1. All persons born or

naturalized in the United States, and

subject to the jurisdiction thereof, are

citizens of the United States and of the

State wherein they reside. No State

shall make or enforce any law which shall

abridge the privileges or immunities of

citizens of the United States; nor shall

any State deprive any person of life,

liberty, or property, without due process

of law; nor deny to any person within

its jurisdiction the equal protection

of the laws.

46a

28 U.S.C. 81343.

The district courts shall have origi-

nal jurisdiction of any civil action

authorized by law to be commenced by any

person:

To recover damages for injury

to his person or property, or

because of the deprivation of

any right or privilege of a

citizen of the United States,

by any act done in furtherance

of any conspiracy mentioned

in section 1985 of Title 42

[42 USCS 81985];

To recover damages from any

person who fails to prevent or

to aid in preventing any wrongs

mentioned in section 1985 of

Title 42 which he had knowledge

47a

were about to occur and power

to prevent;

To redress the deprivation,

under color of any State law,

Statute, ordinance, regulation,

custom or usage, of any right,

privilege or immunity secured

by the Constitution of the United

States or by any Act of Congress

providing for equal rights of

citizens or of all persons with-

in the jurisdiction of the

United States;

To recover damages or to secure

equitable or other relief under

any Act of Congress providing

for the protection of civil

rights, including the right to

vote.

48a

28 U.S.C. 82201

Creation of :remedy

In a case of actual controversy with-

in its jurisdiction, except with respect

to Federal taxes other than actions

brought under section 7428 of the Intern-

al Revenue Code of 1954 [26 U.S.C. 87428]

any court of the United States, upon the

filing of an appropriate pleading, may

declare the rights and other legal rela-

tions of any interested party seeking

such declaration, whether or not further

relief is or could be sought. Any such

declaration shall have the force and

effect of a final judgement or decree and

shall be reviewable as such.

49a

28 U.S.C. 82202

Further necessary or proper relief

based on a declaratory judgement of decree

may be granted, after reasonable notice

and hearing, against any adverse party

whose rights have been determined by

such Judgement.

50a

82 U.S.C. 82963:

Every person who, under color of any

statute, ordinance, regulation, custom,

or usage, of any State or Territory,

subjects, or causes to be subjected, any

citizen of the United States or other

person within the jurisdiction thereof

to the deprivation of any rights, privi-

leges, or immunities secured by the Con-

stitution and laws, shall be liable to

the party injured in an action at law,

suit in equity, or other proper proceeding

for redress.

5la

42 U.S.C. 81985(3)

TITLE 42

CONSPIRACY TO INTERFERE WITH

CIVIL RIGHTS

If two or more persons in any State

or Territory conspire, or go in disguise

on the highway or on the premises of an-

other, for the purpose of depriving,

either directly or indirectly, any person

or class of persons of the equal protec-

tion of the laws, or of equal privileges

and immunities under the laws, or for

the purpose of preventing or hindering

the constituted authorities of any State

or Territory from giving or securing to

all persons within such State or Territory

the equal protection of the laws; or if

two or more persons conspire to prevent

by force, intimidation, or threat, any

citizen who is lawfully entitled to

52a

vote, from giving his support or advocacy

in a legal manner, toward or in favor of

the election of any lawfully qualified

person as an elector for President or

Vice-President, or as a member of Congress

of the United States; or to injure any

citizen in person or property on account

of such support or advocacy; in any case

of conspiracy set forth in this section,

if one or more persons engaged therein

do, or cause to be done, any act in

furtherance of the object of such con-

spiracy, whereby another is injured in

his person or property, or deprived of

having and exercising any right or privi-

lege of a citizen of the United States,

the party so injured or deprived may

have an action for the recovery of dam-

ages, occasioned by such injury or

deprivation, against any one or more of

the conspirators.

53a

MASS. GEN. LAWS C.31 827

Appointment or promotion;

manner of selection

Except as provided otherwise by

section fifteen, if the administrator

certifies from an eligible list the names

of three persons who are eligible for

and willing to accept appointment, the

appointing authority, pursuant to the

civil service law and rules, may appoint

only from among such persons. If such

eligible list contains the names of less

than three persons who are willing to

accept appointment, the appointing

authority may appoint from among those

persons or may request authorization to

make a provisional appointment pursuant

to sections twelve, thirteen and fourteen.

If an appointing authority makes an

original or promotional appointment from

54a

a certification of any person other than

the person whose name appears highest,

and the person whose name is highest is

willing to accept such appointment, the

appointing authority shall immediately

file with the administrator a written

statement of his reasons for appointing

the person whose name was not highest.

Such an appointment of a person whose

name was not highest shall be effective

only when such statement of reasons has

been received by the administrator. The

administrator shall make such statement

available for public inspection at the

office of the division.

55a

MASS. GEN. LAWS C.151B, 85.

Any person claiming to be aggrieved

by an alleged unlawful practice or

alleged violation of clause (e) of section

thirty-two of chapter one hundred and

twenty-one B or sections ninety-two A

and ninety-eight of chapter two hundred

and seventy-two may, by himself or his

attorney, make, sign and file with the

commission a verified complaint in writing

which shall state the name and address

of the person, employer, labor organi za-

tion or employment agency alleged to have

committed the unlawful practice complained

of or the violation of said clause (e) of

said section thirty-two or said sections

ninety-two A and ninety-eight and which

Shall set forth the particulars thereof

and contain such other information as may

be required by the commission. The

56a

attorney general may, in like manner,

make, sign and file such complaint. The

commission, whenever it has reason to

believe that any person has been or is

engaging in an unlawful practice or

violation of said clause (e) of said

section thirty-two or said sections

ninety-two A and ninety-eight, may issue

such a complaint. Any employer whose

employees, or some of them, refuse or

threaten to refuse to co-operate with

the provisions of this chapter, may

file with the commission a verified

complaint asking for assistance by con-

ciliation or other remedial action...Any

complaint filed pursuant to this section

must be so filed within six months after

the alleged act of discrimination. The

institution of proceedings under this

section, or an order thereunder, shall

not be a bar to proceedings under said

57a

sections ninety-two A and ninety-eight,

nor shall the institution of proceedings

under said sections ninety-two A and

ninety-eight, or a judgement thereunder,

be a bar to proceedings under this sec-

tion.

58a

MASS. GEN. LAWS C. 260 B2A

Three years; actions of tort, contract

to recover for personal injuries and

replevin

Except as otherwise provided, actions

of tort, actions of contract to recover

for personal injuries, and actions of

replevin, shall be commenced only within

three years next after the cause of

action accrues.

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.