Opposition Brief — Silk v. Kleppe

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du the Supreme Court of the Guited States

OctToBER TERM, 1970

No. 1550

BEATRICE SILK, PETITIONER

v.

THomas S. KLEppE, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

MEMORANDUM FOR THE RESPONDENTS IN OPPOSITION

1. Petitioner was employed by the Small Business

Administration, initially in 1960 as a clerk, grade GS-

5; she was promoted in 1962 to Placement and Clas-

sification Assistant, grade GS-7. In 1963, she ap-

pealed to the Civil Service Commission for an in-

crease in grade. In April 1964, the Commission’s

Regional Office in Boston, Massachusetts, informed

her by letter that, in view of the functions she per-

formed, her position did not support her GS-7 grade

and that it was therefore recommending a reclassifi-

cation of her position by the SBA to Personnel Clerk,

having the lower level of GS-5.

(1)

423-856—71

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The SBA followed this recommendation and peti-

tioner appealed. After a hearing by the SBA, the

hearing examiner: upheld the job reclassification.

Petitioner appealed to the Boston Regional Office of

the Civil Service Commission and was given another

hearing (5 C.F.R. 752.203, 772.305). In May 1965, the

Appeals Examiner held that the SBA action had been

procedurally defective (Pet. Exh. F).* The SBA ap-

pealed that determination to the Commission’s Board

of Appeals and Review (5 C.F.R. 772.307), which in

November 1965 reversed, upholding the SBA job re-

classification. Petitioner’s subsequent requests that

the Board reconsider its decision and that the Com-

missioners reopen and review her case were denied.

Petitioner filed the present action in the United

States District Court for the District of Massachu-

setts in 1969, naming as defendarts the Administra-

tor of the SBA and the Chairman of the Civil Service

Commission. Defendants moved to dismiss the com-

plaint on several grounds, including that petitioner

had failed to join the individual Civil Service Com-

missioners, indispensable parties to the action.’ Dur-

ing a hearing on the motion, the court advised peti-

tioner to obtain an attorney and return in two months’

1The Examiner found that the SBA action was due either to

a reduction in work-force or to personal reasons and therefore

did not comply with the applicable procedural requirements—

if the former, petitioner had not been changed to a position

already in existence; if the latter, she had not been given ad-

vance notice by the SBA of those personal reasons (Pet. Exh.

F, pp. 5-6).

2 See Blackmar vy. Guerre, 342 U.S. 512.

3

time. Thereafter, petitioner, acting pro se, on two

occasions sought to amend her complaint in certain

respects, but she declined to join the individual Com-

missioners; she then moved for summary judgment.

On July 8, 1970, the district court granted the de

fendants’ earlier motion to dismiss. On petitioner’s

motion to vacate, however, the court reconsidered its

dismissal order at a further hearing on July 16, 1970.

On July 21, 1970, it affirmed the earlier dismissal.

Petitioner filed a second motion to vacate the order,

and, on August 12, 1970, the court vacated that order

by entering a new one dismissing the complaint for

failure to join indispensable parties. On September

9, 1970, petitioner moved to vacate the August 12 dis-

missal order (Pet. Exh. C), and this motion was de-

nied on October 15, 1970.

Petitioner filed a notice of appeal on November 12,

1970; defendants moved to dismiss the appeal on the

ground that petitioner’s September 9 motion to va-

cate was untimely under Rule 59(e), Fed. R. Civ. P.*

The court of appeals, declining to dismiss the appeal,

affirmed the October 15 order of the district court

(Pet. Exh. A and B). The court ruled that petition-

er’s September 9, 1970 motion to vacate had not been

timely fi@jd under Rue 59(e), Fed. R. Civ. P., and thus

did not stay the running of the 30-day period within

which to appeal the district court’s order of August

12, 1970. Hence the November 12, 1970 notice of ap-

* Rule 59(e), F.R. Civ. P., provides: “A motion to alter or

amend the judgment shall be served not later than 10 days

after entry of the judgment.”

4

peal ‘was filed out of time with respect to that order

under Rule 4a, Fed. R. App. P. The court of appeals

held that the notice of- appeal was timely with respect

to the subsequent October 15, 1970 district court or-

der. But as to that order, the court ruled that the

district court had properly denied petitioner’s Sep-

tember 9 motion to vacate since it was filed out of time

under Rule 59(e), Fed. R. Civ. P.*

A timely petition for rehearing was denied on. J an-

uary 18, 1971 (Pet. Exh. D).

. 2. The petition presents only a narrow procedural

question as to timeliness which turns on the particular

circumstances of this case. The courts below afforded

petitioner every consideration, including liberal inter-

pretations of procedural and jurisdictional require-

ments, in resolving the issue raised, and correctly

decided the question. There is thus no cause for

further review.

3. Moreover, aside from the timeliness question,

petitioner is entitled to no relief on the merits of her

claim. Contrary to her assertion (Pet. 4), the SBA

was not required to take corrective action in accord-

ance with the May 1965 determination of the Civil

Service Commission Appeals Examiner (Pet. Exh. F).

*The court below (Pet. Exh. B) rejected petitioner’s con-

tention that her September 9 motion should be treated as a mo-

tion for relief from a final judgment or order by reason of

“mistake, inadvertence, surprise, or excusable neglect” under

Rule 60(b) (1), F.R. Civ. P., which can be “made within a rea-

sonable time.” It concluded (Pet. Exh. B, p. 3) that petitioner's

ion is based on the broad ground that the court made an

erroneous ruling,” and therefore is not within the intended

scope of Rule 60(b)(1), which is “addressed to some special

situations justifying extraordinary relief.”

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The Commission’s Board of Appeals and Review fully

considered and reversed that determination, finding

that the SBA job reclassification ‘‘was not unreason-

able, arbitrary or capricious, and that it was for such

cause as will promote the efficiency of the service.”

It is therefore respectfully submitted that the peti-

tion for a writ of certiorari should be denied.

Erwin N. Griswo.p,

Solicitor General.

May 1971.

"3 GCVFRNMENT PRINTING OFFICE: 1971

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