Appendix — Christian v. New York State Dept. of Labor
Supreme Court brief1974
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miaies Supreme
LIBRARY, FILED
SUPREME COURT, U. PPENDIX way 17 1973
“ MICHAEL RODAK, JR..CLERK
In THE
| Supreme Court of the United States
| OCTOBER TERM, 1972
No. 72-5704
de «© JEAN CHRISTIAN and VicToR L. GREEN,
. Appellants,
— ea
NEW YorK STATE DEPARTMENT OF LABOR, DIVISION OF
EMPLOYMENT; its Industrial Commissioner, Louis L.
LEVINE; UNITED STATES DEPARTMENT OF LABOR, its
, Secretary, PETER J. BRENNAN; UNITED STATES POSTAL
SERVICE CORPORATION ; its Postmaster General, ELMER
T. KLASSEN; UNITED “STATES CrviL SERVICE CoMMIS-
SION; its Chairman, ROBERT E. HAMPTON, and its
Commissioners, JAMES E. JOHNSON and JAYNE SPAIN;
UNITED STATES DEPARTMENT OF THE TREASURY; and
its Secretary, GEORGE P. SHULTZ,
Appellees.
FOR THE SOUTHERN DISTRICT OF NEW YORK
FILED NOVEMBER 14, 1972
PROBABLE JURISDICTION NOTED APRIL 16, 1973
IN THE
Supreme Court of the United States
OCTOBER TERM, 1972
é
No. 72-5704
JEAN CHRISTIAN and VICTOR L. GREEN,
Appellants,
—Y ,——
NEW YORK STATE DEPARTMENT OF LABOR, DIVISION OF
EMPLOYMENT; its Industrial Commissioner, LOUIS L.
LEVINE; UNITED STATES DEPARTMENT OF LABOR, its
Secretary, PETER J. BRENNAN; UNITED STATES POSTAL
SERVICE CORPORATION; its Postmaster General, ELMER
T. KLASSEN; UNITED STATES CIVIL SERVICE COMMIS-
SION; its Chairman, ROBERT E. HAMPTON, and its
Commissioners, JAMES E. JOHNSON and JAYNE SPAIN;
UNITED STATES DEPARTMENT OF THE TREASURY; and
its Secretary, GEORGE P. SHULTZ,
Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
INDEX TO APPENDIX
. Page
Relevant Docket Entries =. ee eee 1
Amended Complaint—Class Action — 4
Affidavit of Jean Christian Attached ‘ penne Com-
plaint — 15
Exhibit A ‘is Christian ‘Affidavit: “Notice. of Deter-
mination 19
Exhibit B to Christian Affidavit: Referee ‘Decision
and Notice of Decision _____.__ 21
re RA TT SE PENG
nee as |
RA DE ST ot
ii INDEX
Amended Complaint—Class Action—Continued
Affidavit of Jean Christian Attached to Amended Com-
plaint—Continued
Exhibit C to Christian Affidavit: Statement of
Industrial Commissioner In Support of His Ap-
peal from Referee Decision
Exhibit D to Christian Affidavit: Appeal Board
Decision
Affidavit of Victor L. Green Attached to Amended Com-
plaint
Exhibit A to Green Affidavit: Notice of Deter-
mination
v
Answer of Federal Defendants Department of Labor, James
D. Hodgson, Postal Service Corporation, Elmer T. Klassen,
Civil Service Commission, Robert E. Hampton, James E.
Johnson, and Jayne Spain to Amended Complaint —
Answer of the State Defendants to Amended Complaint —_--
Plaintiffs’ Notice of Motion for Summary Judgment or for
Three-Judge Court and Summary Judgment ——
Statement of Material Facts as to which Plaintiffs Con-
tend There is no Genuine Issue to be Tried
Federal Defendants’ Notice of Motion to Dismiss or for
Summary Judgment
Statement of Material Facts as to which the Federal
Defendants Contend There is no Genuine Issue to be
Tried
Exhibit B to Statement of Material Facts: Notice
of Separation to Victor L. Green
Exhibit C to Statement of Material Facts: United
States Civil Service Commission Denial of Appel
to Victor L. Green —_-_.
Answer of Federal Defendants Department of the Treasury”
and John Connally to Amended Complaint —
Order Convening Three-Judge Court -.... -.---..-----.-.
Statutory Notice of Three-Judge Court —. -.......--.—.
Opinion —_.....--- —— rrreree!
Notice of Appeal to the ‘Seanies Court of the United States.
Orders of the Supreme Court of the United States granting
motion of appellants for leave to proceed in forma pauperis
and noting probable jurisdiction —. _-_.--.-.----------.
Page
&
31
79-80
RELEVANT DOCKET ENTRIES
Civil Docket
UNITED STATES DISTRICT COURT
71 Civ. 5556
Dec. 21, 1971:. Filed Complaint—Class Action.
Dec. 21, 1971: Filed Order Appointing Process Server
(Clerk of Court).
Dec. 21, 1971: Filed Order to Proceed In Forma Pauperis
(Croake, D. J.).
Mar. 10, 1972: Filed Amended Complaint—Class Action.
Mar. 10, 1972: Filed Order Appointing Process Server
(Clerk of Court).
Mar. 22, 1972: Filed Plaintiffs’ Notice of Motion for a De-
termination of the Class.
Mar. 22, 1972: Filed Memorandum of Law in Support of
Plaintiffs’ Motion for a Determination of
the Class.
Mar. 28, 1972: Filed Answer of Federal Defendants Depart-
ment of Labor, James D. Hodgson, Postal
Service Corporation, Elmer T. Klassen, Civil
Service Commission, Robert E. Hampton,
James E. Johnson, and Jayne Spain to
Plaintiffs’ Amended Complaint.
Apr. 10, 1972: Filed Answer of State Defendants New
York State Department of Labor and Louis
L. Levine to Plaintiffs’ Amended Complaint.
Apr. 17, 1972: Filed Plaintiffs’ Notice of Motion for Sum-
mary Judgment or for a Three-Judge Court
and Summary Judgment, with attached
Statement of Material Facts as to which
Plaintiffs Contend There is no Genuine Issue
to be Tried.
RELEVANT DOCKET ENTRIES
Apr. 17, 1972: Filed Memorandum of Law in Support of
Plaintiffs’ Motion for Summary Judgment or
for a Three-Judge Court and Summary Judg-
ment.
May 12, 1972: Filed Federal Defendants’ Notice of Motion
to Dismiss or for Summary Judgment, with
attached Statement of Material Facts as to
which the Federal Defendants Contend There
is no Genuine Issue to be Tried.
May 12, 1972: Filed Memorandum of Law in Support of
Federal Defendants’ Motion to Dismiss or
for Summary Judgment.
May 16, 1972: Filed Answer of Federal Defendants Depart-
ment of the Treasury and John Connally to
Plaintiffs’ Amended Complaint.
~ May 18, 1972: Filed Memorandum for State Defendants.
- May 19, 1972: Filed Plaintiffs’ Reply Brief.
May 24, 1972: Filed Order Designating Paul R. Hays, C. J.,
and Arnold Bauman, D. J., in addition to
Marvin E. Frankel, D. J., to sit as Three-
Judge Court (Friendly, C. J.).
May 24, 1972: Filed Order Setting Hearing Date Before
Three-Judge Court (Frankel, D. J.).
May 25, 1972: Filed Statutory Notice to Convene Three-
Judge Court (Clerk of Court).
June 5, 1972: Filed Memorandum of Law in Support of
Federal Defendants’ Motion to Dismiss or
for Summary Judgment.
June 8, 1972: Three-Judge Court Convened Before Paul R.
Hays, C. J., Marvin E. Frankel, D. J., and
Arnold Bauman, D. J. Decision Reserved.
July 24, 1972: Filed Opinion dismissing the action (Hays,
C. J., and Bauman, D. J.) and iennne
Opinion (Frankel, D. J.).
he eae Seas |
RELEVANT DOCKET ENTRIES
Sept. 15, 1972: Filed Notice of Appeal to the Supreme Court
of the United States.
Apr. 24, 1973: Filed Copy of Order of the Supreme Court
of the United States.
Apr. 24, 1973: Filed Copy of Order of the Supreme Court
of the United States Noting Probable Juris-
diction.
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
71 Civ. 5556
JEAN CHRISTIAN and VICTOR L. GREEN, indivually and on
behalf of all others similarly situated, PLAINTIFFS
—against—
New YorRK STATE DEPARTMENT OF LABOR, DIVISION OF
EMPLOYMENT; its Industrial Commissioner, Lous L.
LEVINE; UNITED STATES DEPARTMENT OF LABOR, its
Secretary, JAMES D. Hopcson; UNITED STATES POSTAL
SERVICE CORPORATION; its Chairman, ROBERT E.
HAMPTON, and its Commissioners, JAMES E. JOHNSON
and JAYNE SPAIN; UNITED STATES DEPARTMENT OF
THE TREASURY; and its Secretary, JOHN CONNALLY,
DEFENDANTS
AMENDED COMPLAINT—GLASS ACTION—
Filed March 10, 1972
I.
NATURE OF CLAIM
1. Plaintiffs, individually and on behalf of all others
similarly situated, seek declaratory relief, injunctive re-
lief and a writ of mandamus to redress the denial of
unemployment insurance benefits under the Unemploy-
ment Compensation for Federal Employees Program
without a fair hearing as required by the Fifth and
Fourteenth Amendments to the United States Constitu-
tion, by 42 U.S.C. § 1988, by 42 U.S.C. § 1985(3), by
42 U.S.C. § 503 and by 5 U.S.C. §§ 8501-8508.
al
II.
JURISDICTION
2. The jurisdiction of this Court is invoked pursuant
to 28 U.S.C. §§ 2201 and 2202 which authorize the issu-
ance of declaratory judgments, to 28 U.S.C. § 1343(3)
granting original jurisdiction to District Courts over ac-
tions brought under the United States Constitution, 42
U.S.C. §§ 1983 and 1985 and to 29 U.S.C. § 1861 relat-
_ ing to actions in the nature of mandamus.
Ill.
PLAINTIFFS
_8. Plaintiff Jean Christian is forty-five years old, a
black citizen of the United States and a resident of
Brooklyn, New York. Subsequent to her termination as
a federal civilian employee with the United States Post
Office Department she was denied unemployment insur-
ance benefits without a fair. hearing.
4. Plaintiff Victor L. Green is a citizen of the United
States and a resident of Bronx, New York. Subsequent —
to his termination as a federal civilian employee with
the United States Department of the Treasury, he was
denied unemployment insurance benefits and has not and
will not be given a fair hearing.
IV.
DEFENDANTS
5. Defendant New York State Department of Labor,
Division of Employment (hereafter “Division of Em- —
ployment”) is the agency responsible for the adminis-
tration of unemployment insurance in the State of New —
York and is a party to an agreement with the United ©
States Department of Labor pursuant to 5 U-S.C.
§§ 8501 et seg. which authorize the payment of unem- —
ployment insurance benefits to federal employees and
m LCN Ren ae
deny the right to a fair hesring concerning eligibility
for such benefits.
6. Defendant Louis L. Levine is the Industrial Com-
missioner of the New York State Department of Labor,
Division of Employment, and is responsible for the ad-
ministration of unemployment insurance in the State
of New York.
7. Defendant United States Department of Labor
(hereafter “Department of Labor”) is the agency re-
sponsible for the administration of unemployment insur-
ance benefits for federal employees under 5 U.S.C.
$§ 8501 et seg. and has entered into an agreement with
the New York State Department of Labor, Division of
Employment, pursuant to 5 U.S.C. §§ 8501 et seg. which
authorize the payment of unemployment insurance bene-
fits to federal employees and deny to such employees the
right to a fair hearing concerning eligibility for such
benefits.
8. Defendant James D. Hodgson is the Secretary of
the United States Department of Labor and is respon-
sible for the administration of unemployment insurance
for federal employees.
9. Defendant United States Postal Service Corpora-
tion (hereafter “Postal Service”) assumed all obliga-
tions and liabilities of the United States Post Office De-
partment, which is the the former employer of Plaintiff
Christian and, pursuant to 5 U.S.C. § 8506 and the reg-
ulations promulgated thereunder by the Department of
Labor, it transmitted information to the Defendant Di-
vision of Employment concerning the reason for the ter-
mination of Plaintiff: Christian’s employment.
10. Defendant Elmer T. Klassen is Postmaster Gen-
eral of the United States Postal Service Corporation and
is responsible for the transmission of information to
state unemployment insurance agencies such as the De-
fendant Division of Employment.
11. Defendant United States Civil Service Commis-
sion (hereafter the “Civil Service Commission’) is re-
sponsible for the administration and regulation of work-
ing and termination procedures for federal employees.
12. Defendant Robert E. Hampton is the Chairman
of the United States Civil Service Commission and, in
conjunction with Defendants Johnson and Spain, is re-
sponsible for the administration of federal employee pro-
cedures.
13. Defendant James E. Johnson is a Commissioner
° of the United States Civil Service Commission and, in
conjunction with Defendants Hampton and Spain, is re-
sponsible for the administration of federal employee pro- |
cedures. i
14. Defendant Jayne Spain is a Cemmissioner of the
United States Civil Service Commission and, in conjunc- j
tion with Defendants Hampton and Johnson, is respon-
sible for the administration of federal employee proce- ©
dures. :
15. Defendant United States Department of the Treas- ©
ury (“hereafter “Department of Treasury”) is the for-
mer employer of Plaintiff Victor L. Green and, pursuant
to 5 U.S.C. § 8506 and the regulations promulgated there-
under by the Department of Labor, it transmitted infor-
mation to the Defendarit Division of Employment con-
cerning the reason for the termination of Plaintiff
Green’s employment.
-16. Defendant John Connally is the Secretary of the ©
United States Department of the Treasury, and is re- |
sponsible for the transmission of information to state
unemployment insurance agencies such as the Defendant ©
Division of Employment.
7.
CLASS ACTION
17. Plaintiffs bring this action pursuant to Rules 23
(a) and 23(b) (2) of the Federal Rules of Civil Proce- |
dure on behalf of themselves and all persons similarly
situated. The class is composed of all federal employees
who have been or will be subject to denial or termination |
of unempleyment compensation benefits under the Un- |
employment Compensation for Federal Employees (here-
after “UCFE”) Program on the basis of findings of fact |
&
denied Plaintiffs because the New York State De-
partment of Labor, Division of Employment gave final
usi i of Plaintiffs’ em-
law common to the members of the
class are the conformity of the practice of denying fair
hearings to federal employees who apply for unemploy-
ment insurance with requirements of the Fifth and
common to the members of the class are whether or not
such persons were terminated on the basis of findings of
fact on which the hearings were held.
The Defendants in following a policy which deprives
the members of the class of a fair hearing have acted
or refused to act on grounds generally applicable to the
class thereby making appropriate final injunctive and
declaratory relief.
VI.
STATEMENT OF THE CLAIM
18. Plaintiff Christian was a probationary employee
with the United States Post Office Department from
April 4, 1970, to October 2, 1970.
19. On October 2, 1970, Plaintiff Christian was dis-
charged by the Post Office Department because of an
allegedly unsatisfactory attendance record.
20. The Post Office Department’s alleged reason for |
the termination of Plaintiff Christian’s employment was
that she had been absent without notifying the Post
Office Department on August 31 and September 1, 1970.
21. Plaintiff Christian filed an original claim with the
Defendant Division of Employment under the UCFE ~
Program, 5 U.S.C. §§ 8502, 8506, on October 3, 1970. 3
:
doa id
22. By initial determination effective October 3, 1970,
the Defendant Division of Employment ruled that Plain-
tiff Christian was disqualified because she had volun-_
tarily left her employment without good cause by pro-_
23. This initial determination was based on reports —
made by the Post Office Department stating that Plain-
tiff Christian's employment was terminated during her
probationary period because of her unsatisfactory at-—
tendance record and her absences on August 31 and Sep- —
tember 1, 1970 without notifying the Post Office Depart- |
ment as to such absences. :
24. The initial determination was reversed by Referee _
Milton Weinstein of the Division of Employment on .-
January 8, 1971, after a full hearing in which the In-
dustrial Commissioner and the Plaintiff were heard. _
25. Referee Weinstein found that: °
“Claimant’s parental responsibilities required her
absence from work on August 31 and September 1.
Having had the employer advised of the reason for |
3
ha
her absence she did not willfully act in a manner >
to provoke her discharge. She did not voluntarily ©
leave her employment.”
26. Referee Weinstein did not accord “final and con-_
clusive” weight to the findings of the Post Office Depart-—
ment as required by 5 U.S.C. § 8506. :
27. An appeal was taken from the Referee’s decision 3
to the Appeal Board of the New York State Department”
of Labor, Division of Employment. The Board is charged
with review of determinations by the Referees of the
Division of Employment. ~
28. The Appeal Board reversed Referee Weinstein’s,
decision and upheld the initial determination. In its deci-~
10
sion, dated April 16, 1971, the Appeal Board stated that
it was bound, under 5 U.S.C. § 8506, by the federal
agency’s findings and that Plaintiff Christian had pro-
voked her discharge, which was tantamount to a volun-
tary leaving of employment without good cause.
29. The decision of the Appeal Board is final on all
questions of fact under New York unemployment insur-
ance law.
30. By Act of Congress effective primarily on July
1, 1971, the United States Post Office Department became
the Defendant United States Postal Service Corporation,
under which Act the latter assumed all the obligations
and liabilities of the former, and under which Act the
latter remains a federal agency bound by the require-
ments of 5 U.S.C. § 8506 and the regulations promul-
gated thereunder.
$1. Plaintiff Christian was not afforded a hearing by
the Defendant Civil Service Commission. Under 5 C.F.R.
§ 315.806, issued pursuant to 5 U.S.C. §§ 1801, 3301,
3302 and Executive Orders 10577 and 11103, a proba-
tionary federal employee is given no hearing on the
grounds for termination of employment unless discrimi-
nation or improper termination procedure is alleged.
32. Plaintiff Christian was not afforded a hearing by
either the Post Office Department or the Department of
Labor. Under the UCFE Program, the employing agency
makes findings of fact, including reasons for termina-
tion, and furnishes them to the Division of Employment.
5 U.S.C. § 8506.
33. 5 U.S.C. § 8506 also provides that these findings
of fact made by the employing federal agency are to be
“final and conclusive” upon the state agency determining
the eligibility of a federal employee for unemployment
insurance. The Department of Labor regulations gov-
erning this procedure, 20 C.F.R. §§ 609.9 et seq.,- provide
only for a review of the federal agency findings, but not
for a hearing. 20 C.F.R. § 609.18, as amended, July,
1971, provides for federal agency hearings over con-
tested facts only where an employee has resigned.
34. The New York State Department of Labor, Divi-
sion of Employment, Appeal Board did not afford Plain-
1l
tiff Christian a hearing concerning the reasons for her
termination. The Board found itself bound by the fed-
eral agency’s findings of fact, in accord with 5 U.S.C.
§ 8506 and 20 C.F.R. § 609.18 and thereby rejected the
de novo findings of the Referee.
35. Plaintiff Green was a probationary employee with
the Defendant United States Department of the Treasury
from December 24, 1970, to December 18, 1971.
36. During his employment, Plaintiff Green was based
in New York as a skymarshall for the Bureau of Cus-
toms of the Defendant Department of the Treasury.
37. On December 18, 1971, Plaintiff Green was dis-
charged by the Defendant Department of the Treasury
for the alleged reason of drinking an alcoholic beverage ;
within twenty-four hours of flying.
38. Plaintiff Green filed an original claim with the
Defendant Division of Employment, under the UCFE
Program, 5 U.S.C. §§ 8502, 8506, on December 23, 1971.
39. By initial determination effective on February 17,
1972, the Defendant Division of Employment ruled that
Plaintiff Green was disqualified because he had engaged
in misconduct by drinking an alcoholic beverage within
twenty-four hours of flying.
40. This initial determination was based upon reports
made by the Defendant Department of the Treasury
stating that Plaintiff Green was terminated during pro-
bation and that Plaintiff Green was terminated for
drinking an alcoholic beverage within twenty-four hours
of flying.
41. Plaintiff Green received a Notice of Determina-
tion from the Defendant Division of Employment which
advised him that he had been disqualified from receiving
benefits, and that he had a right to a hearing before the
Defendant Division of Employment. He was also advised
orally, however, that the findings of fact made by the
Defendant Department of the Treasury were final and
conclusive upon the Defendant Division of Employment.
42. Plaintiff Green was not afforded a hearing by the
Defendant Civil Service Commission. Under 5 CFR.
§ 315.806, issued pursuant to 5 U.S.C. §§ 1301, 3302 and
Executive Orders 10577 and 11103, a probationary fed-
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12
eral employee is given no hearing on the grounds for
termination of employment unless discrimination or im-
proper termination procedure is alleged.
48. Plaintiff Green was not afforded a hearing by
either the Defendant Department of the Treasury or the
Defendant Department of Labor. Under the UCFE Pro-
gram, the employing federal agency, the Defendant De-
partment of Labor, makes findings of fact, including
reasons for termination, and furnishes them to the Divi-
sion of Employment. 5 U.S.C. § 8506.
44. 5 U.S.C. § 8506 also provides that these findings
of fact made by the employing federal agency are to be
“final and conclusive” upon the state agency determin-
ing the eligibility of a federal employee for unemploy-
ment compensation insurance. The Department of Labor
regulations governing this procedure, 20 C.F.R. §§ 609.9
et seg., provide only for a review of the federal agency
findings, but not for a hearing. 20 C.F.R. § 609.18, as
amended, July, 1971, provides for federal agency hear-
ings over contested facts only where an employee has
resigned.
45. The New York State Department of Labor, Divi-
sion of Employment will not afford Plaintiff Green a
hearing concerning the reasons for his termination, to
the extent that the Division of Employment considers
itself bound by the federal agency’s findings of fact, in
accord with 5 U.S.C. § 8506 and 20 C.F.R. § 609.18.
First Cause of Action
46. Defendants have deprived the Plaintiffs of unem-
ployment benefits without a fair hearing in violation of
the due process clauses of the Fifth and Fourteenth
Amendments to the United States Constitution.
Second Cause of Action
47. Defendants have deprived the Plaintiffs of unem-
ployment benefits without a fair hearing in violation of
their right to equal protection as guaranteed by the Fifth
and Fourteenth Amendments to the United States Con-
stitution.
= _ 13
Third Cause of Action
48. Defendants have deprived the Plaintiffs. of unem-
ployment. benefits without a fair hearing in violation of
42 U.S.C. § 1983.
Fourth Cause of Action
49. Defendants have deprived the Plaintiffs of unem-
ployment benefits without a fair hearing in violation of
42 U.S.C. § 1985.
Fifth Cause of Action
50. Defendants have deprived the Plaintiffs of unem-
ployment benefits without a fair hearing in violation of
the mandate and intent of 5 U.S.C.. §§ 8501-8506 and 42
U.S.C. § 5038.
Prayer for Relief
Wherefore, Plaintiffs respectfully pray that this Court:
1. Assume jurisdiction of this cause, convene a three-
judge District Court pursuant to 28 U.S.C. §§ 2282 and
2284 to determine this controversy and set this case
promptly for a hearing.
2. Enter a declaratory judgment declaring Defend-
ants’ denial of Plaintiffs’ unemployment insurance bene-
fits without a fair hearing to be in violation of Due Proc-
ess and Equal Protection, of 42 U.S.C. $§ 508, 1983 and
1985 and of 5 U.S.C. §§ 8501-8506.
3. Enter a preliminary and permanent injunction re-
straining Defendants from administering the UCFE Pro-
gram so as to deny Plaintiffs and the members of their
class a fair hearing, and restraining Defendants from
denying unemployment insurance benefits due to and
withheld from the Plaintiffs and the members of their
class.
4. Enter an Order in the nature of mandamus com-
pelling the federal Defendants to administer the UCFE
program so as to grant Plaintiffs and the members of
their class fair hearings.
PIERO BRE A IRB peg apes canter com
epee ancien ees
14
5. Grant such other and further relief as this Court
may find just, equitable and proper.
Dated: March 10, 1972
‘New York, New York . ,
Respectfully submitted,
BEDFORD-STUYVESANT COMMUNITY
LEGAL SERVICES CORPORATION
WILLIAM L. REESE, JR.
RUTH BALEN
1368 Fulton Street
Brooklyn, New York 11216
Tel. (212) 638-9324
BRONX LEGAL SERVICES,
CORPORATION A
ARTHUR D. MEEHAN
ERIC RUNDBAKEN
KENNETH G. SCHWARTZ
1438 Boston Road
Bronx, New York 10460
Tel. (212) 842-5300
- /s/ Dennis R. Yeager
DENNIS R. YEAGER
E. RICHARD LARSON
401 West 117th Street
New York, New York 10027
Tel. (212) 280-4112
Attorneys for Plaintiffs
AFFIDAVIT OF JEAN CHRISTIAN
ATTACHED TO AMENDED COMPLAINT
STATE OF NEW YoRK )
) ss:
COUNTY OF KINGS _)
JEAN CHRISTIAN, being duly sworn, deposes and
says: .
1. I reside at 81 DeSales Place, Brooklyn, New York
with my minor daughter.
2. From April 4, 1970, to October 2, 1970, I was em-
ployed in the federal service as a Chauffeur for the
United States Post Office in Brooklyn, New York.
3. On October 2, 1970, during my probationary pe-
riod, my federal employment was terminated, and on
October 3, 1970, I made original claim for unemployment
insurance benefits.
4. On information and belief, on November 5, 1970,
the Post Office transmitted findings to the state unem-
ployment insurance agency which gave as the reasons
for separation from federal service 1) termination .dur-
ing probation; and 2) unexcused absences on August 31,
1970, and September 1, 1970 together with an unsatis-
factory attendance record.
5. On or about November 6, 1970, the Industrial Com-
missioner of the State of New York made an initial de-
termination disallowing unemployment insurance benefits
to me on the. grounds that I had voluntarily left employ-
ment without good cause in that I provoked my discharge
by my absences of August 31, 1970, and September 1,
1970, and further, that the federal findings were final,
conclusive, and binding. (See copy of Notice of Deter-
mination attached hereto as Exhibit “A”).
6. The aforesaid Notice of Determination advised me
that I had the right to a hearing but at the same time
stated that the facts found by the Post Office were final,
conclusive, and binding.
7. On November 12, 1970, I requested a hearing from
the state unemployment insurance agency on the ground
MOIR OA ORE:
,
NE eb a Davee aa nt a ot tat eee
ASOIMPRL mS Ree rasa I ENCORE:
16
that the termination of my employment was unfair, I
was denied a hearing by the federal agency, and I had
good reason for being absent.
8. As a probationary employee of the Post Office, I
had a limited right of appeal to the Civil Service Com-
mission on the issue of my termination, an appeal which
was confined to consideration of charges of discrimina-
tion and improper procedure. § 315.80 6, Civil Service
Regulations. This appeal was not available to challenge
the federal findings as they might relate to claims for
unemployment insurance.
9. On December 16, 1970, a hearing was held before
a Referee designated by the state agency. The federal
agency did not appear. The Industrial Commissioner
submitted a statement in lieu of appearance which on
information and belief, alleged that I had provoked my
discharge because of my attendance record, and that the
findings of the federal agency must be accepted ‘as fact.
I testified on my own behalf.
10. On January 8, 1971, a decision was rendered by
the Referee overruling the initial determination and
granting my claim for benefits. The Refree held that I
had not provoked my discharge, that I had good excuse
for my absences, and had duly explained my absences to
my employer. (See Copy of Referee’s decision attached
hereto as Exhibit “B”).
11. The Industrial Commissioner appealed the decision
of the Referee to the Unemployment Insurance Appeal
Board and urged that the Referee be reversed on the
ground that the findings of the federal agency were final
and conclusive and these findings led to the conclusion,
under New York State unemployment insurance law,
that I had provoked my discharge. (See copy of letter of
Industrial Commissioner submitted in support of his ap-
peal, attached hereto as Exhibit “C’’).
12. On April 16, 1971, the Appeal Board reversed
the Referee holding that the federal findings were final,
conclusive, and binding, and based on these findings, I
had provoked my discharge. (See copy of the Decision
of the Appeal Board attached hereto as Exhibit “D”’).
%
17
13. On August 4, 1970, I had been placed on the “re-
stricted sick leave list” by the Post Office Department,
because of three allegedly unexplained absences reported
by my supervisor, Mr. Gross. Being placed “on the re-
stricted list meant that if I were absent again, I would
be required to produce a medical excuse or be deemed
AWOL, and penalized, accordingly.
14. On the occasions when I was accused of being
AWOL, I had explained to my supervisor that I was
unable to report my absences because my telephone was
out of order. To report an absence, I would have had to
telephone my employer at about 6:00 A.M. and it was
impossible for me to find a working public phone in my
neighborhood at that hour.
15. On August 31, 1970 and September 1, 1970, I
did not go to work because my minor daughter, who was
my sole responsibility, required my assistance. On Au-
gust 30, 1970, a Sunday, I learned that my daughter had
become pregnant and was seeking an illegal abortion.
She was not at home on Sunday. It then became impera-
tive for me to find my daughter to dissuade her from
taking this drastic step. I began my search for her on
Sunday, without success and continued my search through-
out the early morning hours of Monday August 31. Not
knowing where I would be at the time I would have to
report to my employer, I asked my older daughter (aged
25) who did not live at home to telephone my supervisor
to report my absence. My older daughter advised me
later that she had telephoned as requested, but that the
person who answered the telephone at the Post Office
refused to listen to the explanation and told her that I
should bring in a doctor’s note.
16. I located my minor daughter late in the after-
noon of August 31, and found her to be in a very dis-
tressed state. I made the decision not leave her in such
a state until I was assured that she would take the rash
step she had been contemplating. It was not until the
afternoon of September 1, 1970 that I was confident that
I could leave her without fear for her safety. I again
requested my older daughter to telephone my employer
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18
for me on the morning of September 1, which she told
me she had done with the same result.
17. When I returned to work on September 2, 1970,
I attempted to explain my absences to my supervisor, but
he refused to speak with me.
18. I was never given an opportunity by the Post
Office or the Civil Service Commission for a hearing
during which I could challenge the findings of the Post
Office that I had been AWOL on August 31 or Septem-
ber 1, 1970, or on the prior occasions, My supervisor
who reported me AWOL refused to listen to my explana-
tions and I was never permitted to confront him before
an impartial official of the agency, the Civil Service Com-
mission, or the State unemployment insurance agency.
19. Although I was given a hearing by the state un-
employment insurance agency that hearing was not a
fair hearing because the federal findings were final con-
clusive and binding, and the favorable decision of Referee
could not therefore, be accorded full weight by the Appeal
Board.
20. I have been grievously harmed by being denied
unemployment insurance benefits without a fair hearing
in that I was deprived of a source of income which I
sorely needed after I was separated from federal em-
ployment, without due process of law.
91. On information and belief, I would not have been
denied unemployment insurance benefits if I had been
given a fair hearing and an opportunity to challenge the
federal findings in my case because I had a sound and
reasonable excuse for being absent on the days in ques-
tion, and I duly reported my absences, as was found by
the Referee.
22. I believe that there are other persons similarly
situated to myself who have been denied unemployment
compensation for federal employees upon disputed fed-
eral findings without being given a fair hearing, and
that I can fairly represent the class of such persons.
/s/ Jean Christian
JEAN CHRISTIAN
[Notary Omitted]
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EXHIBIT*C TO CHRISTIAN AFFIDAVIT:
STATEMENT OF INDUSTRIAL COMMISSIONER
IN SUPPORT OF HIS APPEAL FROM REFEREE DECISION
PUBLIC EMPLOYMENT SERVICE
SERVICE FOR EVERYONE
LOCAL—STATE—NATIONAL
STATE OF NEW YORK
DEPARTMENT OF LABOR
DIVISION OF EMPLOYMENT
500 Eighth Avenue—New York, New York 10018 :
Tel. 563-7660
COUNSEL’S OFFICE
March 2, 1971
New York State Unemployment
Insurance Appeal Board j
500 Eighth Avenue :
New York, New York 10018
Re: Jean Christian
S.S. No. 050-44-1433
Case No. UCFE-589-70
A.B. No. 162, 874 F
Gentlemen:
The Industrial Commissioner submits this statement in
support of his appeal from the decision of the referee
filed January 8, 1971 overruling an initial determina-
tion disqualifying claimant effective October 3, 1970 for
voluntary leaving of her employment without good cause
by provoking her discharge.
LOS LE I EELS EIT Nees
The issue presented is whether claimant pursued a course ;
of conduct which she knew or should have known would
cause her discharge from her employment, and whether
claimant was subject to disqualification pursuant to Sec-
tion 593.1 of the Unemployment Insurance Law.
:
Claimant was employed by a federal agency from April
8, 1970 to October 2, 1970. She filed for benefits under
Chapter 85, ‘Title 5 of the United States Code. Accord-
ing to the report of the federal agency, claimant’s em-
ployment was terminated during her probationary period
because of her unsatisfactory attendance record, climaxed
by her absences on August 31 and September 1, 1970
without notifying the employer as to such absences (See
employer’s letters dated September 2, and September 8,
1970 in answer to FL 4 and Fl 2N). Claimant advised
the insurance office that she did not call the employer
each time she was absent because she could not get to a
telephone that was working; that all the telephones in
the neighborhood were not in working order (LO 413
dated 10/19/70). Claimant further contended that she
failed to report to work on August 31, and September 1,
1970 because of compelling domestic problems, and that
she requested an older daughter, not residing with her,
to telephone the employer both August 31, and Septem-
ber 1, and that the daughter did make the telephone
calls (smp. 9 and 11). The employer reported that it
received no such notification of claimant’s absences on
August 31, and September 1, 1970. The record further
establishes that claimant had a poor attendance record,
and had been warned by the employer with reference
to same. As of August 4, claimant was on a restricted
list so that if she were absent even one more day, claim-
ant needed a medical substantiation. It should be noted
that during the period in issue, claimant was during
her probationary period.
The Appeal Board has held that the findings of fact by
a federal agency as to the reasons for termination of
employment are final, binding and conclusive on both the
referee and the Appeal Board (UCFE-1708). In the in-
stant case, it is submitted that the findings of fact as
outlined by the Post Office are such that lead to but one
conclusion, to wit, that claimant had a poor attendance
record; had been warned with reference to same; was
absent on August 31, and September 1 without notifica-
tion to the employer and was discharged during her
ARRAN 0 SEE, Mapas
” 25
probationary period. Under the circumstances, claimant
knew or should have known that such conduct on her
part, especially during her probationary period, would
lead to her discharge and claimant is, therefore, subject
to disqualification pursuant to Section 593.1 of the Labor
Law (See Matter of Malaspina, 309 N.Y. 413, affirming
285 App. Div. 564, reversing A.B. #42,606).
For the reasons stated, the decision of the referee should
be reversed.
Very truly yours,
HYMAN AMSEL
Counsel
By: /s/ Herman Sakoloff
HS :ems
ec: Jean Christian
Mr. Memelsdorff
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AFFIDAVIT OF VicToR L. GREEN
ATTACHED TO AMENDED COMPLAINT
STATE OF NEW YorK )
) ss:
COUNTY OF BRONX )
VICTOR L. GREEN, being duly sworn, deposes and
says:
1. I reside at 1547 Commonwealth Avenue, Bronx,
New York.
2. From December 24, 1970 to December 18, 1971, I
was employed in the federal service as a Skymarshall
for the United States Department of the Treasury, Bu-
reau of Customs, based in New York.
3. On December 14, 1971, during by probationary pe-
riod, my federal employment was terminated, and on
December 23, 1971, I made original application and claim
for unemployment insurance benefits.
4. On information and belief, the Department of the
Treasury, Bureau of Customs, transmitted findings to
the state unemployment insurance agency which gave as
the reasons for separation from service 1) termination
during probation; and 2) dringing of an alcoholic bev-
erage within twenty-four hours of flying.
5. On or about February 17, 1972, the Industrial
Commissioner of the State of New York made an initial
determination disallowing unemployment insurance bene-
fits to me on the grounds that I had drunk an alcoholic
beverage within twenty-four hours of departure time for
a flight and that the federal findings were conclusive.
(See copy of Notice of Determination attached hereto as
Exhibit “A”.)
6. The aforesaid Notice of Determination advised me
_ that I had the right to a hearing but at the same time I
was told that the facts found by the Department of the
Treasury, Bureau of Customs were final, conclusive and
binding.
7. On February 17, 1972, I requested a hearing from
the state unemployment insurance agency on the ground
that the termination of my employment was unfair, I was
80
denied a hearing by the federal agency, and I had not
committed the act alleged.
8. As a probationary employee of the Treasury De-
partment, Bureau of Customs, I had a limited right of
appeal to the Civil Service Commission on the issue of
my termination, an appeal which was confined to con-
sideration of charges of discrimination and improper
procedure. § 315.80 6, Civil Service Regulations. This
appeal was not available to challenge the federal findings
as they might relate to claims for unemployment in-
surance.
9. I had never been accused of any misconduct until
receipt of the notice of termination, and had no reason to
believe that I would be so accused.
10. I have been grievously harmed by being denied
unemployment benefits without a fair hearing in that I
was deprived of a source of income which I sorely needed
after I was separated from federal employment without
due process of law.
11. On information and belief, I would not have been
denied unemployment insurance benefits if I had been
given a fair hearing and an opportunity to challenge the
federal findings in my case because I was and am inno-
cent of the charges which led to my dismissal and be-
lieve I could prove that in impartial hearing.
12. I believe that there are other persons similarly
situated to myself who have been denied unemployment
compensation for federal employees upon disputed fed-
eral findings without being given a fair hearing, and
that I can fairly represent the class of such persons.
/s/ Victor L. Green
VicToR L. GREEN
[Notary Omitted]
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[Caption and Title Omitted]
ANSWER OF FEDERAL DEFENDANTS
DEPARTMENT OF LABOR, JAMES D. HOGDSON,
POSTAL SERVICE CORPORATION, ELMER T. KLASSEN
CIvIL SERVICE COMMISSION, ROBERT E. HAMPTON,
JAMES E. JOHNSON, AND JAYNE SPAIN
TO THE AMENDED COMPLAINT—Filed March 28, 1972
The defendants, United States Department of Labor,
James D. Hodgson, United States Postal Service Cor-
poration, Elmer T. Klassen, United States Civil Service
Commission, ‘Robert E. Hampton, James E. Johnson,
Jayne Spain, by their attorney, Whitney North Seymour,
Jr., United States Attorney for the Southern District of
New York for their answer to the complaint as amended:
1. Deny knowledge or information sufficient to form a
belief as to the truth of the allegations of Paragraph 1
of the complaint, except deny the allegations insofar as
they purport to state a rule of law respecting the re-
quirement of providing a fair hearing.
2. Deny the allegations contained in paragraph 2 of
the complaint.
3. Admit the allegations of the first sentence of Para-
graph 3 of the complaint and deny the allegations of the
second sentence.
4. Deny knowledge or information sufficient to form a
belief as to the truth of the allegations of Paragraph 4
of the complaint. ,
5. Admit the allegations of Paragraph 5 of the com-
‘plaint except deny that the statutes referred to deny a
fair hearing as alleged.
6. Deny knowledge or information sufficient to form a
belief as to the truth of the allegations in Paragraph 6
of the complaint.
7. Admit the allegations of Paragraph 7 of the com-
plaint except deny those allegations that refer to a denial
of a right to a fair hearing.
8-14. Admit the allegations of Paragraphs 8 through
and including Paragraph 14 of the complaint.
15. Deny knowledge or information sufficient to form
a belief as to the truth of the allegations of Paragraph
15 of the complaint.
16. Admit the allegations of Paragraph 16 of the
t.
17. Deny the allegations contained in Paragraph 17 of
the complaint, except state that plaintiff Christian is a
former federal employee.
Raw Admit the allegations of Paragraph 18 of the com-
plaint.
19-20. Deny the allegations of Paragraphs 19 and
20 of the complaint, and state that plaintiff Christian .
was discharged by reason of her total record of unsatis-
factory conduct of which the instances mentioned in
Paragraphs 19 and 20 were a part.
21-22. Admit the allegations of Paragraphs 21 and 22
of the complaint.
_ 28. Deny the allegations of Paragraph 23 of the com-
plaint, except deny knowledge and information sufficient
to form a belief as to what the basis of the initial de-
termination was.
24-28. Admit the allegations of Paragraphs 24 through
and including Paragraph 28.
29. Deny Knowledge or information sufficient to form
a belief as to the truth of the allegations in Paragraph
29 of the complaint.
30. Admit the allegations of Paragraph 30 of the
complaint.
31. Admit the allegations of Paragraph 31 of the com-
plaint, but state further that plaintiff never requested a
hearing.
32-34. Admit the allegations of Paragraphs 32 through
and including Paragraph 34 of the complaint.
35-45. Deny knowledge or information sufficient to
form a belief as to the allegations of Paragraphs 35
through and including Paragraph 45 of the complaint.
46-50. Deny the allegations of Paragraph 46 through
and including Paragraph 50 of the complaint.
First Affirmative Defense
51. This Court lacks jurisdiction over the subject mat-
ter of this acfion.
i ee ee oe Coe Aa as
35
Second Affirmative Defense
52. The complaint fails to state a cause of action upon
which relief may be granted.
Third Affirmative Defense
53. State that plaintiff was dismissed from proba-
tionary federal employment for cause.
WHEREFORE, defendants demand judgment dismiss-
ing this action together with the costs and disbursements
of this action, and such other and further relief as this
court deems justified. ;
WHITNEY NorTH SEYMouR, JR.
United States Attorney for the
Southern District of New York
Attorney for defendants United
States Postal Service Corpora-
tion, Klassen, United Statés
Labor Department, Hodgson,
United States Civil Service Com-
mission, Hampton, Johnson
and Spain.
By: /s/ Taggart D. Adams
TAGGART D. ADAMS
Assistant United States Attorney
Office and Post Office Address:
United States Courthouse
Foley Square
New York, New York 10007
Tel.: (212) 264-6335
[Caption and Title Omitted]
ANSWER OF THE STATE DEFENDANTS
TO THE AMENDED COMPLAINT—Filed April 10, 1972
The defendants, NEW YORK STATE DEPARTMENT
OF LABOR and LOUIS L. LEVINE (hereinafter “State
defendants”) by their attorney LOUIS J. LEFKOWITZ,
Attorney General of the State of New York, for their
answer to the complaint as amended:
FIRST: Deny the allegations of paragraph “1” in-
sofar as they purport to state a rule of law respecting
the requirements of providing a fair hearing and insofar
as they claim that the State defendants do not provide
such a hearing.
SECOND: Deny knowledge or information sufficient
to form a belief as to the truth of the allegations in para-
graph “3” except deny that plaintiff Christian was denied
a fair hearing and admit that she was denied unem-
ployment insurance benefits.
THIRD: Deny knowledge or information sufficient to
form a belief as to the truth of the allegations in para-
graph “4” except deny that plaintiff Green was denied a
fair hearing and admit tha was denied unemployment
insurance benefits.
‘FOURTH: Admit the allegations of paragraph “5”
except deny that the State dei®ndants deny a fair hearing.
FIFTH: Admit the allegations of paragraph “6”.
SIXTH: Admit the allegations of paragraph “7” ex-
cept deny that the State defendants deny a fair hearing.
SEVENTH: Deny knowledge or information sufficient
to form a belief as to the truth of the allegations of para-
graph “8” through and including paragraph “16”.
EIGHTH: Deny the allegations in paragraph “17”
except state that plaintiffs are former federal “employees
who were found by the State defendants not to be en-
titled to unemployment insurance benefits.
NINTH: Admit the allegations of paragraph “18”.
PH IEA», MR tg
ELEVENTH: Admit the allegations of paragraphs
“21” and “22”.
TWELFTH: Deny the allegations of paragraph “23”
except state that the initial determination was based in
part on Post Office Department reports.
THIRTEENTH: Admit the allegations of paragraphs
ar ad and “—". :
FOURTEENTH: Deny the allegations of paragraph
“—-".
FIFTEENTH: Admit the allegations of paragraph
“27” except state that referees and the Appeal Board
are not under the jurisdiction of the Division of Em-
ployment.
SIXTEENTH: Admit the allegations of paragraphs
“28” and “29”,
SEVENTEENTH: Deny knowledge or information
sufficient to form a belief as to the truth of the allega-
tions of paragraphs “30” and “31”.
EIGHTEENTH: Deny knowledge or information suf-
ficient to form a belief as to the truth of the allegations
of the first sentence of paragraph “32” and admit the
second sentence thereof.
NINETEENTH: Deny knowledge or information suf-
ficient to form a belief as to the truth of the allegations
of paragraph “33”. :
TWENTIETH: Deny the allegations of paragraph
“34” except state that the Board is bound by the federal
agency’s findings of fact with respect to the reasons for
termination. é
TWENTY-FIRST: Deny knowledge or information
sufficient to form a belief as to the truth of the allega-
tions of paragraphs “35” and “36”.
TWENTY-SECOND: Admit that the allegations of
paragraph “37” constitute at least part of the reason for
termination. :
Sins tide ERT RAN ERA ES |
TWENTY-THIRD: Admit the allegations of para-
graphs “38” and “39” except state with respect to para-
graph “39” that the initial determination was issued on
February 17, 1972 effective as of December 19, 1971.
TWENTY-FOURTH: Deny the allegations of para-
graph “40” except state that the initial determination
was based in part on Treasury Department reports.
TWENTY-FIFTH: Admit the allegations of the first
sentence of paragraph “41”. Deny knowledge or informa-
tion sufficient to form a belief as to the truth of the al-
legations of the second sentence of paragraph “41”.
TWENTY-SIXTH: Deny knowledge and information
sufficient to form a belief as to the truth of the allega-
tions of paragraphs “42” through “44”.
TWENTY-SEVENTH: Deny the allegations of para-
graphs “45” through “50”.
FIRST AFFIRMATIVE DEFENSE
TWENTY-EIGHTH: This Court lacks jurisdiction
over the subject matter of this action.
SECOND AFFIRMATIVE DEFENSE .
TWENTY-NINTH: The complaint fails to state a
claim upon which relief may be granted.
THIRD AFFIRMATIVE DEFENSE
THIRTIETH: In cases involving the termination (as
distinguished from the resignation) of federal proba-
tionary employees, the State defendants are bound by
the findings of fact of the federal employer as to the
reasons for termination. 5 U.S.C. § 8506; 20 C.F.R.
§§ 609.9 et seg. (as amended to July, 1971).
Sh SRE WOE ey EEA en ~ GSMA BRP OPPS BRR NR
WHEREFORE, defendants demand judgment dismiss-
ing this action together with the costs and disbursements
of this action, and such other and further relief as this
court deems justified.
Louis J. LEFKOWITZ
Attorney General of the
State of New York
Attorney for Defendants
New York State Department
of Labor and Levine
By: /s/ Brenda Soloff
BRENDA SOLOFF
Assistant Attorney General
80 Centre Street
New York, New York 10013
Tel: (212) 488-7402
[Caption and Title Omitted]
PLAINTIFFS’ NOTICE OF MOTION FOR SUMMARY JUDGMENT
OR FOR THREE-JUDGE COURT AND SUMMARY JUDGMENT
—Filed April 17, 1972
SIRS:
PLEASE TAKE NOTICE that upon the attached Mo-
tion and Statement of Undisputed Material Facts at-
tached thereto and upon the Pleadings and Affidavits
filed in the above-entitled matter, the Plaintiffs will move
this Court, in Room 506 of the United States Courthouse,
Foley Square, New York, New York, on the 2nd day of
May, 1972, at 10:00 A.M. or as soon thereafter as coun-
sel can be heard, for an Order:
(1) Granting Plaintiffs’ motion for summary judg-
ment and a preliminary and permanent injunction en-
joining the Defendants from enforcing and following 5
U.S.C. § 8506 and 20 C.F.R. § 609.18 and § 609.25 inso-
far as said statute and regulations deny fair hearings to
former federal employees determined ineligible for un-
employment compensation benefits under the Unemploy-
ment Compensation for Federal Employees (UCFE)
Program or; in the alternative,
(2) Granting Plaintiffs’ motion for the convening of
a three-judge court and for summary judgment and a
preliminary and permanent injunction enjoining the De-
fendants from enforcing and following 5 U.S.C. § 8606
and 20 C.F.R. § 609.18 and § 609.25 insofar as said stat-
ute and regulations deny fair hearings to former federal
employees determined ineligible for unemployment com-
pensation benefits under the Unemployment Compensa-
41
tion for Federal Employees (UCFE) Program.
Dated: April 14, 1972
New York, New York
Yours, ete.
[Attorneys and Addresses Omitted]
Attorneys for Plaintiffs
TO:
WHITNEY NorTH SEYMOUR, JR.
TAGGART D. ADAMS
United States Attorney for the
Southern District of New York
United States Courthouse
Foley Square
New York, New York 10007
Louis J. LEFKOWITZ
BRENDA SOLOFF
New York State Attorney General
80 Centre Street
New York, New York 10013
[Caption and Title Omitted]
STATEMENT OF MATERIAL FACTS AS TO WHICH PLAINTIFFS
CONTEND THERE IS NO GENUINE ISSUE TO BE TRIED
In support of the foregoing motion for summary judg-
ment, and pursuant to Rule 9(g) of the Rules of the
United States Court for the Southern District of New
York, Plaintiffs submit the following Statement of Ma-
terial Facts as to which Plaintiffs contend there is no
genuine issue to be tried:
1. Plaintiff Jean Christian is a resident of Brooklyn,
New York, and a former employee of the United States
Post Office in Brooklyn, New York. (Christian Affidavit
71, 72.; Federal Answer One, 73 { 18.)
2. Plaintiff Victor L. Green is a resident of Bronx,
New York, and a former employee of the United States
Department of the Treasury, Bureau of Customs, based
in New York. (Green Affidavit 71, { 2.)
3. Defendant New York State Department of Labor,
Division of Employment is the agency responsible for
the administration of unemployment insurance in the
State of New York and is a party to an agreement with
the United States Department of Labor pursuant to 5
U.S.C. §§ 8501 et seg. which authorize the payment of
unemployment insurance benefits to Federal employees.
(Federal Answer One 9 5; State Answer J 4.)
4. Defendant Louis L. Levine is the Industrial Com-
missioner of the New York State Department of Labor,
Division of Employment, and is responsible for the ad-
ministration of unemployment insurance in the State of
New York. (New York Labor Law §§10, 530; State
Answer { 5.)
5. Defendant United States Department of Labor is
the agency responsible for the administration of unem-
ployment insurance benefits for the administration of
unemployment insurance benefits for Federal employees
under 5 U.S.C. §§ 8501 et seg. and has entered into an
agreement with the New York State Department of
Labor, Division of Employment, pursuant to 5 U.S.C.
Dea it SiO NET TEENS
$6 CEE DR OS ee ORR Be AER TS TE So att
43
§§ 8501 et seg. which authorize the payment of unem-
ployment insurance benefits to Federal employees. (Fed-
eral Answer One 7 7; State Answer { 6.)
6. Defendant James D. Hodgson is the Secretary of
the United States Department of Labor and is responsi-
ble for the administration of unemployment insurance
for Federal employees. (Federal Answer One { 8.)
7. Defendant United States Postal Service Corpora-
tion assumed all obligations and liabilities of the United
States Post Office Department, which is the former em-
ployer of Plaintiff Christian and, pursuant to 5 U.S.C.
§ 8506 and the regulations promulgated thereunder by
the Department of Labor, it transmitted information to
the Defendant Division of Employment concerning the
reason for the termination of Plaintiff Christian’s em-
ployment.. (Federal Answer One { 9.)
8. Defendant Elmer T. Klassen is Postmaster General
of the United States Postal Service Corporation and is
responsible for the transmission of information to State
unemployment insurance agencies such as the Defendant
Division of Employment. (Federal Answer One { 10.)
9. Defendant United States Civil Service Commission
(hereafter the “Civil Service Commission”) is responsi-
ble for the administration and regulation of working
and termination procedures for Federal employees. (Fed-
eral Answer One { 11.)
10. Defendant Robert E. Hampton is the Chairman of
the United States Civil Service Commission and, in con-
junction with Defendants Johnson and Spain, is respon-
sible for the administration of Federal employee proce-
dures. (Federal Answer One { 12.)
11. Defendant James E. Johnson is a Commissioner
of the United States Civil Service Commission and, in
conjunction with Defendants Hampton and Spain, is re-
sponsible for the administration of Federal employee
procedures. (Federal Answer One { 13.)
12. Defendant Jayne Spain is a Commissioner of the
United States Civil Service Commission and, in conjunc-
tion with Defendants Hampton and Johnson, is respon-
sible for the administration of Federal employee proce-
dures. (Federal Answer One { 14.)
44
18. Defendant United States Department of the Treas-
ury is the former employer of Plaintiff Victor L. Green,
and pursuant to 5 U.S.C. § 8506 and the regulations
promulgated thereunder by the Department of Labor,
it transmitted information to the Defendant Division of
Employment concerning the reason for the termination
of Plaintiff Green’s employment. (Green Affidavit { 2,
7 4.)
14. Defendant John Connally is the Secretary of the
United States Department of the Treasury, and is re-
sponsible for the transmission of information to State
unemployment insurance agencies such as the Defendant
Division of Employment. (Federal Answer One f{ 16.)
15. Plaintiff Christian was a probationary employee
with the United States Post Office Department from
April 4, 1970, to October 2, 1970. (Christian Affidavit
7 2; Federal Answer One 7 18; State Answer f 9.)
16. On October 2, 1970, Plaintiff Christian was dis-
charged by the Post Office Department allegedly because
of a record of unsatisfactory conduct which included an
unsatisfactory attendance record. (Christian Affidavit
13, 14; Federal Answer One 7 19, { 20.)
17. Plaintiff Christian filed a valid original claim with
the Defendant Division of Employment under the Un-
employment Compensation for Federal Employees
(UCFE) Program, 5 U.S.C. §§ 8502, 8506, on October
3, 1970. (Christian Affidavit 13; Federal Answer One
21; State Answer { 11.)
18. By initial determination effective October 3, 1970,
the Defendant Division of Employment ruled that Plain-
tiff Christian was disqualified because she had volun-
tarily left her employment without good cause by pro-
voking her discharge. (Christian Affidavit 5, Exhibit
A; Federal Answer One { 22; State Answer { 11.)
19. This initial determination was based on reports
made by Post Office Department stating that Plaintiff
- Christian’s employment was terminated during her pro-
bationary period because of her unsatisfactory attend-
ance record and her absences on August 31 and Septem-
ber 1, 1970 without notifying the Post Office Department
as to such absences. (Christian Affidavit { 4.)
— o-
45
20. The initial determination was reversed by Referee
Milton Weinstein of the Division of Employment on Jan-
uary 8, 1971, after a full hearing in which the Indus-
trial Commissioner and the Plaintiff were heard. (Chris-
tian Affidavit 7 9, 110; Federal Answer One 1 24; State
Answer { 13.)
21. Referee Weinstein found that:
“Claimant’s parental responsibilities required her ab-
sence from work on August 31 and September 1.
Having had the employer advised of the reason for
her absence she did not willfully act in a manner
to provoke her discharge. She did not voluntarily
leave her employment.”
(Christian Affidavit, Exhibit B; Federal Answer
One 25; State Answer 13.)
22. Referee Weinstein did not accord “final and con-
clusive” weight to the findings of the Post Office Depart-
ment as required by 5 U.S.C. § 8506. (Federal Answer
One { 26.)
23. An appeal was taken from the Referee’s decision
to the Appeal Board of the New York State Department
of Labor. The Board is charged with review of determi-
nations by the Referees. (Christian Affidavit 711, Ex-
hibit C; Federal Answer One 127; State Answer 15.)
24. The New York State Department of Labor, Divi-
sion of Employment, Appeal Board did not afford Plain-
tiff Christian a hearing concerning the reasons for her
termination. (Federal Answer One { 34.)
25. The New York State Department of Labor re-
versed Referee Weinstein’s de novo findings and decision
and upheld the initial determination. - In its decision,
dated April 16, 1971, the Appeal Board stated that it
was bound, under 5 U.S.C. § 8506, by the Federal
agency’s findings and that Plaintiff Christian had pro-
voked her discharge, which was tantamount to a volun- -
tary leaving of employment without good cause. (Affi-
davit of Christian, Exhibit D; Federal Answer One { 28,
134; State Answer { 16.)
MOPS RON ay S meCRancemRRe esa
CENA MONG DE | ERT RH ODS O8MIn Amc ir ie Mtoe.
oe res
BEN Ne ea EE IEP,
46
26. The decision of the Appeal Board is final on all
of fact under New York unemployment insur-
ance law. (State Answer { 16.)
27. By Act of Congress effective primarily on July 1,
1971, the United States Post Office Department became
the Defendant United States Postal Service Corporation,
under which Act the latter assumed all the obligations
and liabilities of the former, and under which Act the
latter remains a Federal agency bound by the require-
ments of 5 U.S.C. § 8506 and the regulations promul-
gated thereunder. (Federal Answer One f{ 30.)
28. Plaintiff Christian was not afforded a hearing by
the Defendant Civil Service Commission. (Christian Af-
fidavit { 8; Federal Answer One f{ 31.)
29. Plaintiff Christian was not afforded a hearing by
either the Post Office Department or the Department of
Labor. (Federal Answer One { 32.)
30. Plaintiff Green was a probationary employee with
the Defendant United States Department of the Treas-
ury from December 24, 1970, to December 18, 1971.
(Green Affidavit f 2, 7 3.)
31. During his employment, Plaintiff Green was based
in New York as a skymarshall for the Bureau of Cus-
toms of the Defendant Department of the a
(Green Affidavit {[ 2.)
32. Effective December 18, 1971, Plaintiff Green bead
discharged by the Defendant Department of the Treas-
ury for the alleged reason of drinking an alcoholic bev-
erage within twenty-four hours of flying. (Green Affi-
davit J 2, 13, 74.)
36. Plaintiff Green received a Notice of -Determina-
tion from the Defendant State Department of Labor,
Division of Employment, which advised him that he had
been disqualified from receiving benefits, and that he
had a right to a hearing before the Division of Employ-
ment. He was also advised orally, however, that the
findings of fact made by the Defendant Department of
the Treasury were final and conclusive upon the Defend-
ant New York State Department of Labor, Division of
Employment. (Green Affidavit 76, Exhibit A; Green
Affidavit { 6.)
47
87. The Defendant New York State Department of
Labor, Division of Employment, treats as final and con-
clusive pursuant to 5 U.S.C. 7 8506 the reasons for ter-
mination of employment submitted to it by Federal gov-
ernment agencies, pursuant to 5 U.S.C. 1] 8501 et seq.
(State Answer ff 20, 30.)
38. Plaintiff Green was not afforded a hearing by the
Defendant Civil Service Commission. (Green Affidavit
7 8.)
_ 89. The total number of Federal employees hired in
New York State during the fiscal year June, 1970, to
June, 1971, was approximately 35,450. (Stipulation at-
tached as Exhibit B to Plaintiffs’ Class Action Motion.)
40. The first year of employment of a Federal em-
ployee who is given career or career-conditioned employ-
ment is a probationary period. The probationary period
is one year. (5 C.F.R. § 315.801, § 315, 802.)
41. The employing Federal agency may terminate the
employment of a probationary Federal employee by no-
tifying the employee about its conclusions as to why he
is being separated from employment and about the effec-
tive date of the action. (5 C.F.R. § 315.804.)
42. A probationary Federal employee has no right to
appeal the termination, and is given no hearing on the
grounds for termination of employment unless the em-
ployee alleges that the termination was based upon dis-
crimination because of race, color, religion or sex, politi-
cal reasons, martial status, discrimination because of a
physical handicap, or improper procedure not in accord-
ance with 5 C.F.R. § 815.805. (5 C.F.R. § 315.806.)
43. Each Federal agency is required to make avail-
able to State unemployment compensation agencies in-
formation concerning the reasons for termination of Fed-
eral service of former Federal employees. (5 U.S.C.
§ 8506 (a).)
44. Within four work days after receipt from a State
unemployment compensation agency of a form noting the
application of a former Federal employee for unemploy-
ment compensation benefits under the UCFE Program,
a Federal agency is required to ascribe and transmit its
PND PRE ARIE NESE IRN Me 1S
48
Federal findings to the State agency or other appropri-
ate person. (20 C.F.R. § 609.6(a).)
45. Under Federal authority as interpreted and ap-
plied by the New York State Department of Labor, Divi-
sion of Employment, Federal findings are final and con-
clusive on the State agency, except where a Federal ci-
vilian employee has contradicted the reasons alleged for
his resignation and has not received a hearing on the
issues involved in the alleged reasons for resignation. (5
U.S.C. § 8506; 20 C.F.R. § 609.18(a), as amended, July
20, 1971; Smith v. District Unemployment Compensation
Board, 435 F.2d 433 (D.C. Cir. 1970), on remand, No.
2282-68 (D.D.C. Feb. 1, 1971); State Answer { 30.)
46. Pursuant to United States Department of Labor
regulations providing for a limited ex parte review by
the Federal agency of ‘the Federal findings, there is no
provision for nor right to a hearing. (20 C.F.R.
§ 609.23; Federal Answer One { 33.)
47. Federal findings are treated as not subject to re-
view by the New York State Department of Labor,
Division of Employment, while other determinations and
redeterminations are available for review under the State
unemployment compensation law. (20 C.F.R. § 609.25,
as amended, July 20, 1971; State Answer { 20.)
48. Fair hearings on all issues of fact are made avail-
able by the New York State Department of Labor, Divi-
sion of Employment to all non-Federal employees and to
other persons who are dissatisfied with an initial deter-
mination of a claim for benefits. (New York Labor Law
§ 620.)
49. In the UCFE Program in the State of ves York
for the year 1971, there were 8,184 original claims for
benefits under the Regular Program (excluding Extended
benefits) by former Federal employees of these original
claims there were 5,276 non-monetary determinations
and redeterminations of ineligibility for benefits. (64.7%
of all original claims were denied.) Of the claims de-
nied, 1,952 were for reasons of voluntary quit without
ee ee ewe ee ta eee
49
good cause, and 96 were for misconduct. (Stipulation
attached as Exhibit A to Plaintiffs’ Class Action Mo-
tion.)
Dated: April 14, 1972
New York, New York
Respectfully submitted,
[Attorneys and Addresses Omitted]
Attorneys for Plaintiffs
{Caption and Title Omitted] —
FEDERAL DEFENDANTS’ NOTICE OF MOTION TO DISMISS OR
FoR SUMMARY JUDGMENT—Filed May 12, 1972
SIRS:
PLEASE TAKE NOTICE that upon the annexed af-
fidavit, statement pursuant to Rule 9(g), and memo-
randum of law, the undersigned will move this Court, at
a motion part thereof, held in Room 506, United States
Courthouse, Foley Square, New York, New York, on the
23rd day of May, 1972 at 10:00 A.M. or as soon there-
after as counsel may be heard, for an order pursuant to ©
- Rule 12(c} of the Federal Rules of Civil Procedure to
dismiss this action, or, in the alternative, for an order
pursuant to Rule 56 of the Federal Rules of Civil Pro-
cedure granting summary judgment to the federal de-
fendgnts named in plaintiffs’ amended complaint, and
such other and further relief as may be deemed just and
equitable.
Dated: New York, New York
May 12, 1972
Yours, etc.
[Attorneys and Addresses Omitted]
United States Attorney for the
Southern District of New York
TO:
DENNIS R. YEAGER, Esq.
E. RICHARD LARSON, ESQ.
423 W. 118th Street
New York, New York 10027
Louis J. LEFKOWITZ
BRENDA SOLOFF
80. Centre Street
. New bien i New York 10013
4
A aioli TC
51
(Caption and Title Omitted]
STATEMENT OF MATERIAL FACTS AS TO WHICH
THE FEDERAL DEFENDANTS CONTEND THERE IS
No GENUINE ISSUE TO BE TRIED
i The federal defendants accept and hereby incor-
porate the Statement of Material Facts submitted by
the plaintiffs.
2. The plaintiffs, Christian and Green, were separated
from federal employment pursuant to and in accordance
with the provisions of 5 C.F.R. § 315.804.
Respectfully submitted,
{Attorneys Omitted]
United States Attorney for the
Southern District of New York
EXHIBIT B To STATEMENT OF MATERIAL FACTS:
NOTICE OF SEPARATION TO VICTOR L. GREEN
December 14, 1971
PER:4
EG:Im
Mr. Victor L. Green
Customs Security Officer, GS-5
Dear Mr. Green:
This letter constitutes a notice to you that you will be
separated from the Customs Service on December 18,
1971, in accordance wit: Part 315 of the Civil Service
Regulations for disqualification during your probationary
period, for the following reasons:
POET RN I Bl I PON BS 8
You were assigned for duty on Tokyo flight North-
west Airlines 21 and 22 from August 28 to Septem-
ber 1, 1971. Prior to reporting for duty at approxi-
mately 1:00 a.m., on August 28, 1971, you were ob-
served in an intoxicated condition at the pool of your
apartment, the Skylark Apartments. Although the
swimming pool at the apartments closed at 10:00
p.m., you jumped the fence surrounding it, yelling
and shouting and then jumped into the pool wearing
only your jockey shorts. When the manager appeared
and requested you to leave, you began screaming at
him.
In addition, during the Tokyo flight Northwest Air-
lines 21 and 22 you had difficulty staying awake
because of your personal activities prior to departure.
A few hours prior to leaving on a Tokyo flight on
September 3, 1971, you also drank an alcoholic bev-
erage.
Your drinking an alcoholic beverage within 24 hours
of departure on assignments was contrary to instruc-
tions given to Customs Security Officers. In addi-
tion, your actions were disgraceful, and demon-
strated a lack of responsibility and dependability.
Within 15 calendar days from the effective date of this
action, you may appeal this decision to terminate your
appointment to the Regional Director, New York Region,
U.S. Civil Service Commission, Federal Building, 26
Federal Plaza, New York, N.Y. 10007. Your appeal may
be based on the grounds that the action was taken be-
cause of political reasons not required by statute, or
that it resulted from discrimination because of race, color,
religion, sex, national origit, marital status or physical
handicap. If you allege discrimination, you must sub-
mit an affidavit stating your reasons for believing there
was such discrimination.
If you desire further information on how to proceed with
your appeal, you may contact’ Mr. E. Grossi, Employee
Relations Specialist, telephone number (212) 264-5173/
5174, Room 726, U.S. Customhouse, New York, New York
10004, for further explanation.
Please sign, date and return the accompanying copy of
this notice, so that it may serve as your acknowledge-
ment of the original.
Very truly yours,
JOHN W. FALLON
Special Agent in Charge
TM PNP, Be Fi cre ey tprengee ee
See Dn a eta
54
ExuHisit C TO STATEMENT OF MATERIAL FACTS:
UNITED STATES CIVIL SERVICE COMMISSION
DENIAL OF APPEAL TO VICTOR L. GREEN
UNITED STATES CIVIL SERVICE COMMISSION
NEw YORK REGION
Comprising New York, New Jersey,
Puerto Rico and the Virgin Islands
Office of the Director, New York, New York 10007
Director New York Region
U.S. Civil Service Commission
Federal Building In Reply Please
26 Federal Plaza Refer To
New York, N.Y. 10007 NY:A:BG:js
Mr. Victor L. Green
c/o Morrisania Legal Services
1438 Boston Road
Bronx, New York 10460
Dear Mr. Green:
Reference is made to your and your representative’s let-
ters of December 30, 1971 and January 18, 1972 con-
cerning your recent employment with U.S. Bureau of
Customs, New York, New York.
Our inquiry disclosed that you were notified by letter,
dated December 14, 1971, signed by John W. Fallon, Spe-
cial Agent in Charge, that you would be separated from
your position of Customs Security Officer GS-5 because of
drinking an alcoholic beverage within 24 hours of de-
parture on assignments, etc. Accordingly, your services
were terminated effective December 18, 1971.
Section 315.804 of the Civil Service Regulations applies
to the action taken in your case. It provides that if an
agency decides to terminate an employee serving a pro-
bationary period because his work performance or con-
duct fails to demonstrate his fitness or qualifications for
continued federal employment, his services will be ter-
minated by notifying him in writing as to why he is be-
ing terminated and the effective date of the action. This
— -
55
regulation does not provide for any appeal to the Civil
Service Commission by a probationary employee on the
cannot be accepted.
Unless this decision is further appealed within 15 days
of the date it is received, it becomes the final decision of
Two copies of any further appeal should be addressed to
the Board of Appeals and Review, U.S. Civil Service
Commission, Washington, D.C. 20415. Any representa-
tions which the Board should consider beyond those now
FOR THE REGIONAL DIRECTOR
“ Sincerely yours,
BERT GANSER
Appeals Examiner
ce:
Mr. Eric Rundbaken
Morrisania Legal Services
1433 Boston Road
Bronx, New York 10460
Special Agent in Charge
Department of Treasury
Bureau of Customs
New York, New York 10014
OLN NE EY TBR Pe BRB wena aenentar EES AERIS PS GE ERO ORRIN LIN eer eran vane
WG I ee
ee
56 :
[Caption and Title Omitted]
ANSWER OF FEDERAL DEFENDANTS DEPARTMENT OF
THE TREASURY AND JOHN CONNALLY TO THE
AMENDED COMPLAINT—Filed May 16, 1972
The defendants, the United States Department of the
Treasury and John Connolly, by their attorney, Whitney
North Seymour, Jr., United States Attorney for the
Southern District of New York for their answer to the
complaint as amended:
1. Deny knowledge or information sufficient to form
a belief as to the truth of the allegations of Paragraph
1 of the complaint, except deny the allegations insofar
as they purport to state a rule of law respecting the re-
quirement of providing a fair hearing.
2. Deny the allegations contained in paragraph 2 of
the complaint.
8. Admit the allegations of the first sentence of Para-
graph 3 of the complaint and deny the allegations of
the second sentence.
4. Admit the allegation of the first sentence and deny
knowledge or information sufficient to form a belief as
to the truth of the allegations of the second sentence of
Paragraph 4 of the complaint.
5. Admit the allegations of Paragraph 5 of the com-
plaint except deny that the statutes referred to deny a
fair hearing as alleged.
6. Deny knowledge or information sufficient to form
a belief as to the truth of the allegations in Paragraph
6 of the complaint.
7. Admit the allegations of Paragraph 7 of the com-
plaint except deny those allegations that refer to a de-
nial of a right to a fair hearing.
8-16. Admit the allegations of Paragraphs 8 through
and including Paragraph 16 of the complaint.
17. Deny the allegations contained in Paragraph 17
of the complaint, except state that plaintiffs Christian
and Green are former federal employees.
ee Admit the allegations of Paragraph 18 of the com-
plaint.
57
19-20. Deny the allegations of Paragraphs 19 and 20
of the complaint, and state that plaintiff Christian was
discharged by reason of her total record of unsatisfac-
tory conduct of which the instances mentioned in Para-
graphs 19 and 20 were a part.
21-22. Admit the allegations of Paragraphs 21 and 22
of the complaint.
23. Deny the allegations of Paragraph 23 of the com-
plaint, except deny knowledge and information sufficient
to form a belief as to what the basis of the initial de-
termination was.
24-28. Admit the allegations of Paragraphs 24 through
and including Paragraph 28.
29. Deny knowledge or information sufficient to form
a belief as to the truth of the allegations in Paragraph
29 of the complaint.
30. Admit the allegations of Paragraph 30 of the com-
plaint.
31. Admit the allegations of Paragraph 31 of the com-
plaint, but state further that plaintiff never requested
a hearing.
32-34. Admit the allegations of Paragraphs 32 through
and including Paragraph 34 of the complaint.
35-36. Admit the allegations of Paragraphs 35 through .
and including Paragraph 36 of the complaint.
37. Admit the allegations of Paragraph 37 and state
that further instances of misconduct were reasons for
the discharge of Green.
38-39. Admit the allegations of Paragraphs 38 through
and including Paragraph 39 of the complaint.
40. Admit the allegations of Paragraph 40 and state
that further instances of misconduct were reasons for
the discharge of Green.
inowledge or information sufficient to form
“me truth of the allegations of Paragraph
41 of the complaint.
ETI EON LAD ISLE OR
PED IET ICT THe CECE
45. Deny knowledge or information sufficient to form
a belief as to the truth of the allegations of Paragraph
45 of the complaint.
16-50. Deny the allegations of Paragraph 46 through
and including Paragraph 50 of the complaint.
First Affirmative Defense
51. This Court lacks jurisdiction over the subject
matter of this action.
Second Affirmative Defense
52. The complaint fails to state a cause of action
upon which relief may be granted.
Third Affirmative Defense
58. State that plaintiffs were dismissed from proba-
tionary federal employment for cause.
WHEREFORE, defendants demand judgment dismiss-
ing this action together with the costs and disbursements
of this action, and such other and further relief as this
court deems justified.
WHITNEY NORTH SEYMOUR, JR.
United States Attorney for the
Southern District of New York
Attorney for defendants United
States Postal Service Corpora-
tion, Klassen, United States
Labor Department, Hodgson,
United States Civil Service
Commission, Hampton, Johnson,
and Spain, United-States De-
partment of the Treasury, and
: John Connolly
By: /s/ Taggart D. Adams
TAGGART D. ADAMS
Assistant United States Attorney
Office and Post Office Address:
United States Courthouse
Foley Square
New York, New York 10007
Tel.: (212) 264-6335
[Caption and Title Omitted]
ORDER CONVENING THREE-JUDGE CouRT
—Filed May 24, 1972
It appearing that on May 24, 1972, the undersigned -
referred this cause to the Chief Judge of the Circuit for
the convening of a court of three judges pursuant to
Title 28 U.S.C. §§ 2282 and 2284;
It further appearing that by an order dated May 24,
1972, of Hon. Henry J. Friendly, Chief Judge of the
United States Court of Appeals for the Second Circuit,
Hon. Paul R. Hays, United States Circuit Judge, Hon.
Arnold Bauman, United States District J udge, and the
ORDERED that a hearing of the pending motions be-
fore the aforesaid three Judges shall be held at 10:30
A.M. on June 8, 1972, in Room 906, United States Court-
house, Foley Square, New York, New York; and it is
further
to making timely Service of papers to be considered by
Dated: New York, New York
May 24, 1972
/8/ Marvin E. Frankel
U.S.D.J.
60
(Caption and Title Omitted]
STATUTORY NOTICE OF THREE-JUDGE COURT
—Filed May 25, 1972
_ SIRS:
Pursuant to the provisions of Title 28, United States
Code, Sections 2282 and 2284, you are hereby notified that
by an order dated May 24, 1972, made by the Honorable
Marvin E. Frankel, a hearing has been set by a three-
judge court composed of the Honorable Paul R. Hays,
United States Circuit Judge, the Honorable Marvin E.
Frankel and Honorable Arnold Bauman, United States
District Judges, for the 8th day of June, 1972, at 10:30
A.M. in Courtroom 906, United States Courthouse, Foley
Square, New York, New York.
Counsel are directed to comply with the provisions of
General Rule 25 of this Court and with the provisions
contained in the order dated May 24, 1972, signed by the
res
. . x art igaee net,
. SIRNA TORRE So 3 0 er RS
61
Honorable Marvin E. Frankel, a copy of which order is
| hereto annexed.
Dated: New York, New York
May 25, 1972
. /9/ John Livingston
Clerk
TO: Attorney for Plaintiff
DENNIS R. YEAGER and
; E. RICHARD LARSON
3 423 West 118th St.
New York, NY 10027
Attorneys for Defendants
Hon. Louis J. LEFKow1rz (for
N.Y. State Dep’t. of Labor &
Louis L. Levine)
SAMUEL A. HIRSCHOWITz and
BRENDA SOLOFF, of Counsel
80 Centre St., NYC 10013
WHITNEY NortTH SEYMOUR, JR. (for:
Federal Defendants) P
/ TAGGART D. ADAMS, of Counsel
U.S. Courthouse '
Foley Square, NYC 10007
Attorney General of the United States
Department of Justice “>
Washington, D.C.
HON. NELSON A. ROCKEFELLER
Governor of the State of N.Y.
Executive Mansion, Albany, N.Y. : e
i S Tara's eee ee OK) ee
=
ee ee Ce oe 2
+
STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
71 Civ. 5556
(Three Judge Court)
JEAN CHRISTIAN and VICTOR L. GREEN, individually and
on behalf of all others similarly situated, PLAINTIFFS
New YorK STATE DEPARTMENT OF LABOR, DIVISION OF
EMPLOYMENT; its Industrial Commissioner, Louis L.
LEVINE; UNITED STATES DEPARTMENT oF LABOR, its
Secretary, JAMES D. HODGSON ; UNITED STATES POSTAL
SERVICE CORPORATION ; its Post-Master General, ELMER
. - ' KLasseN; UNiTep STATES CIVIL SERVICE COMMIS-
SION; its Chairman, ROBERT E. HAMPTON, and its
Commissioners, JAMES E. JOHNSON and JAYNE SPAIN;
UNITED STATES DEPARTMENT OF THE TREASURY; and
its Secretary, JOHN CONNALLY, DEFENDANTS
BEDFORD-STUYVESANT COMMUNITY LEGAL SERVICES CORP.,
by Ruth Balen, Esq.; BRONX LEGAL SERVICES CORPO-
RATION A, by Eric Rundbaken, Esq.; and Dennis R.
Yeager, Esq. and E. Richard Larson, Esq., Attorneys
for Plaintiffs. :
Louis J. LerKow!Tz, Attorney General of the State of
New York, by Samuel A. Hirshowitz and Brenda
Soloff, Assistant Attorneys General, for Defendants
New York State Department of Labor and Louis L.
Levine.
WHITNEY NorTH SEYMOUR, JR., United States Attorney
for the Southern District of New York, by Taggart
T. Adams, Assistant United States Attorney, for
Federal Defendants.
Before Hays, C.J., FRANKEL and BAUMAN, DQWJ.
OPINION—Filed July 24, 1972 *
BAUMAN, DJ.
This action tests the constitutionality of the Federal
statutory scheme providing unemployment compensation
a
benefits for former Federal employees as it is applied
to those who at the time of termination of their Federal
employment were in a probationary status. The princi-
pal issue is whether the provisions of 5 U.S.C. § 8506:
and the regulations promulgated thereunder, which make
the findings of the former Federal employer as to the
reasons for termination binding and conclusive upon the
State agency in its determination of eligibility for un-
employment* compensation benefits, violate the Due Proc-
ess Clause of the Fifth and Fourteenth Amendments and
the Equal Protection Clause of the Fourteenth Amend-
ment.
This case came on before J udge Frankel for declara-
tory relief, injunctive relief and a writ of mandamus.
As the constitutionality of a Federal statute was seri-
ously in doubt# Judge Frankel invoked a Three-Judge
Court pursuant to 28 U.S.C. § 2282.
* 80 Stat. 589, 5 U.S.C. § 8506 provides in pertinent part:
“(a) Each agency of the United States and each wholly or
partially owned instrumentality of the United States shall make
available to State agencies which have agreements under this
subchapter, or to the Secretary of Labor, as the case may be,
such information concerning the Federal service and Federal
wages of a Federal employee as the Secretary considers prac-
ticable and necessary for the determination of the entitlement
of the Federal employee to compensation under this sub-
chapter. The information shall include the findings of the em-
ploying agency concerning—*
(1) whether or not the Federal-employee has performed
Federal service;
(2) the periods of Federal service;
(3) the amount of Federal wages; and
(4) the reasons for termination of Federal service.
The employing agency shall make the findings in the form and
manner prescribed by regulations of the Secretary. The regu-
lations shall include provisions for correction by the pmploy-
ing agency of errors and omissions. Findings made in: accord-
ance with the regulations are final and conclusive for the
purpose of sections 8502(d) and 8503(c) of this title.”
ee aS
IL.
Plaintiff Jean Christian is a resident of Brooklyn,
New York and a former employee of the United States
Post Office? in Brooklyn. Plaintiff Victor L. Green is a
resident of the Bronx, New York and a former employee
of the United States Department of The Treasury, Bu-
reau of Customs, based in New York. Both plaintiffs
were probationary employees when their employment was
terminated. Plaintiff Christian was employed by the Post
Office Department from April 4, 1970 to October,2, 1970
and was discharged because of an unsatisfactory attend-
~ ance record. Plaintiff Green was a sky marshal for the
Bureau of Customs from December 24, 1970 to Decem-
ber 18, 1971, when he was discharged for drinking an
alcoholic beverage within twenty-four hours of flying.
Neither plaintiff was given a prior hearing nor was one
required.
Title 5 U.S.C. § 8501 et seq.* authorizes the United
2 Defendant United States Postal Corporation assumed all the
liabilities of the United States Post Office Department pursuant to
84 Stat. 738, 39 U.S.C. § 2002.
380 Stat. 586, amended 81 Stat. 218, 5 U.S.C. § 8502 provides
in pertinent part:
“(a) The Secretary of Labor, on behalf of the United
States, may enter into an agreement with a State, or with an
agency administering the unemployment compensation law of
a State, under which the State agency shall—
(1) pay, as agent of the United States, compensation
under this subchapter to Federal employees; ‘and
(2) otherwise cooperate with the Secretary and with
other State agencies in paying compensation under this
subchapter.
(b) The agreement shall provide that compensation will be
paid by the State to a Federal employee in the same amount, on
the same terms, and subject to the same conditions as the
compensation which would be paybale to him under the unem-
ployment compensation law of the State if his Federal service
and Federal wages assigned under section 8504 of this title
to the State had been included as employment and wages under
that State law.
(d) A determination by a State agency with respect to
entitlement to compensation under an agreement is subject to
as to the reasons for termination of an employee are
binding and conclusive on the State agency which admin-
isters the UCFE p - 5 U.S.C. § 8506. Such an
agreement was entered into by the Secretary of Labor
and the State of New York. Both plaintiffs filed claims
for unemployment compensatién with the New York
State Department of Labor which is the administering
agency. After proceeding through the appropriate State
procedures each plaintiff received a final determination
denying them benefits based on the written, conclusive
statements of their former Federal employers.
As probationary employees, neither plaintiff was en-
titled to a hearing before their Federal agency employer
prior to termination of their employment.‘ Therefore,
neither had an opportunity to contest, avoNi or rebut
the written reasons for their dismissal. Because the
Federal findings were binding on the State agency, plain-
compensation benefits without due process of law and in
Il.
__ Prior to addressing the constitutional questions, this
Court must face the statutory claim* that the interpre-
review in the same manner and to the same extent as deter-
minations under the State unemployment compensation law,
and only in that manner and to that extent.”
*Compare 5 U.S.C. § 7582(c) with 5 C.F.R. §§ 315.804, 315.805,
315.806.
*The Supreme Court in Rosado Vv. Wyman, 397 U.S. 397, 402
(1970) stated that a three judge court should consider any statu-
tery claim prior to considering the constitutional claim. See also
King v. Smith, 392 U.S. 309 (1968).
tation of 5 U.S.C. § 8506 set forth in Smith v. District
Unemployment Compensation Board, 435 F.2d 433 (D.C.
1970) is the correct one. If that is so, mandamus will
lie against the Federal officials directing them to provide
a hearing regarding the reasons for termination, upon
request, to those probationary employees whose employ-
ment with a Federal agency is ended.
We refuse to follow the construction of 5 U.S.C. § 8506
set forth in Smith, supra. That Court found—
“There is no reasonable basis for supposing that
whereas Congress deliberately insisted on opportun-
ity of hearing for employees generally, it deliberately
established a no-hearing enclave for a relatively small
group of Federal employees ... .” Supra at 438.
In reaching that conclusion, we think that the Court
ignored the structure of the Federal Civil Service Laws.
Since the original Civil Service Act of 1883, Congress
has made a distinction between probationary and perma-
nent Government employees.* Probationary employees are
not entitled to the full range of hearing rights to which
permanent employees are entitled upon dismissal.‘ This
distinction between probationary and permanent.Govern-
ment employees has been recognized by the Courts on
many occasions * and Congress surely was aware of it in
1954 when it passed the legislation creating the UOFE
Certafhly the Congress intended that Federal employ-
ers should have an unfettered right to terminate proba-
tionary employees up to the time such employees acquire
permanent status. No termination hearing is prescribed
or required nor should it be. What Smith, supra, attempts
is to legislate judicially a hearing not now required by
statute which would mandate precisely the type of hear-
ing not now required for discharge. Such a hearing, as
*5 U.S.C. § 3321.
* See footnote 4, supra.
8 See, e.g., Jaeger V. Freeman, 410 F.2d 528 (5th Cir. 1969),
Medoff v. Freeman, 362 F.2d 472 (1st Cir. 1966).
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6 67
a practical matter, would limit the Government in the
discharge of probationary employees to an extent never
previously contemplated by the
§ 8506 means only the written statement of reasons for
termination sent by the Federal employer to the State
agency administering the UCFE program. Had the Con-
gress meant otherwise it would have said so.
IIT.
The only statutory basis for jurisdiction over the. dis-
pute between the plaintiffs and the Federal defendants 3
alleged in the complaint is 28 U.S.C. § 1361, the manda- FE
mus remedy, which has been found lacking in merit, — :
supra.
In their complaint plaintiffs have not met the juris-
dictional requirements under 28 U.S.C. §§ 1331, 1337 or
1346, the so-called “federal question” jurisdiction sec-
- tions. As neither the Declaratory Judgment Act, 28
U.S.C. §§ 2201, 2202, nor the provisions for invoking a
Three-Judge Court, 28 U.S.C. § 2282, provide subject
matter jurisdiction in and of themselves, an additional]
statutory basis must be alleged. There are no such alle-
gations. The so-called “civil rights” jurisdictional provi-
sions, 42 U.S.C. § 1988 and 28 U.S.C. § 1343, apply to
State, not Fedéral Officials... , x
However, the situation is different as to thg State de-
fendants. Plaintiffs have properly based their claim on
hat moe
complaint against the State defendants is that their ap-
plication of the Federal law in administering the UCFE
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program has denied the plaintiffs of unemployment com-
pensation benefits without due process of law and in
violation of their right to equal protection of the laws.
Ayala vy. District 60 School Board, 327 F.Supp. 980
(D. Colo. 1971) illuminates the issue. As the Court
there said (at p. 981):
“Since plaintiffs in this action claim that their
right to equal protection of the laws has been denied
by Colorado officials, acting in their capacities as
Officials, this court clearly has jurisdiction to hear
the constitutional claim and, should plaintiffs be suc-
_ cessful, to grant the relief sought. It makes no dif-
ference that plaintiffs have not cited a state or local
law upon which the defendants’ conduct may be
based. It is settled that the phrase ‘under color of’
comprehends all official behavior, even that which
is patently unlawful under state, as well as federal,
law.” >
IV.
The State defendants assert that the alleged constitu-
tional violations claimed by plaintiffs do not state a
claim upon which relief can be granted. We agree.
Plaintiffs urge that the State defendants, in applying
5 U.S.C. § 8506 to deny them tinemployment compensa-
tion benefits without a hearing, have violated the equal
protection clause of the Fourteenth Amendment. That
violation allegedly results from treatment of former pro-
bationary employees in a discriminatory and irrational
manner from all other applicants for unemployment
compensation.
To reiterate what we have — ae stated, Congress
had good reason to differentiate between probationary
and permanent employees in trying to promote the effi-
cient disposition of Federal business. As the purpose of
such classification was legitimate and the means adopted
by Congress were rational, there is no denial of equal
protection. Cf. Dandridge v. Williams, 397 U.S. 471,
485 (1970).
PES
69
The other constitutional issue is whether a denial of
unemployment compensation benefits without a hearing
violates the due process clause of the Fourteenth Amend-
ment. This depends upon striking a balance between the
loss to the claimant resulting from a denial of such a
hearing and the Government’s interest in summary ad-
-judication of claims. Goldberg v. Kelly, 397 U.S. 254
(1970). In Goldberg, supra, the Supreme Court held that
an evidentiary hearing was required before welfare pay-
ments could be terminated, but the factual distinctions
between Goldberg and the case at bar: highlight the con-
clusion that the Government’s interest in summary ad-
judication outweighs plaintiffs’ need for a hearing here.
Welfare programs, such as aid to families with de-
pendent children,® are designed to meet a different need
than unemployment com tion. Such payments are
designed to provide the recipient with essential food,
clothing and shelter. Goldberg, pra, at 264. Need is
not the criterion for eligibility under the unemployment
compensation programs." Compensation is available as a
matter of right to involuntarily unemployed workers and
benefits are based on wages previously received by the
claimant without relation to need. In fact, if an unem-
ployed person is declared ineligible for unemployment
compensation benefits he may nonetheless qualify for
welfare payments on the basis of his need. The plain
fact is that unemployment compensation benefits are not
of the same urgent nature to the survival of the claim-
ant as are welfare benefits.
Goldberg, supra, also holds that recipients already re-
ceiving benefits were entitled to a hearing before termi-
nation of those benfits. In the case at bar plaintiffs have
not received benefits but have only applied for them. In
fact, a three-Judge panel of this Court has held that the
Suspension or termination without a prior hearing #of
unemployment compensation benefits already being paid
* 49 Stat. 627, as amended, 42 U.S.C. §$ 601-610.
See N.Y. Labor Law §§ 590, 591 (McKinney’s 1972 Supp.)
which sets forth the rights and eligibility requirements for unem-
ployment compensation in New York.
:
70
without a prior hearing is not violative of the Fourteenth
Amendment. Torres v. New York State Department of
Labor, 321 F.Supp. 432 (S.D.N.Y. 1971), vacated and
remanded, 402 U.S. 968 (1971), previous decision ad-
hered to, 333 F.Supp. 341 (S.D.N.Y. 1971). That Court
pointed out that the “brutal need” of the welfare recipi-
ents in Goldberg was not present in circumstances in-
volving recipients of unemployment compensation. The
same Government interests of an orderly and summary
procedure for the efficient operation of the unemploy-
ment compensation program which were present in
Torres, are present here. On balance, the interests of
the Government outweigh plaintiffs’ need for a hearing
and so, the due process claim cannot be sustained.
Given the above disposition of the case it is not nec-
essary to reach a decision as to whether plaintiffs’ suit
is properly brought as a class action. The action is dis-
SO ORDERED.
Dated: July 24, 1972
/s/ Arnold Bauman
U.S.DJ.
/s/ Paul R. Hays
US.CJ.
FRANKEL, D.J. (dissen
ting) :
My difference with the majority is not on the ques-
tions of constitutional law, which I would not reach.
Instead, on grounds like
trict Unemployment Compensation Board, 435 F.2d 433
(D.C. Cir. 1970), I would hold as a matter o
construction that the plaintiffs and other federal proba-
tionary employees like them are entitled to at least a
rudimentary hearing somewhere on “findings” asserted
unemployment compensation.
with related statutes enacted at
widely separate times, our problem is one on which dif-
ferences respecting general principles of interpretation
may be decisive. Such Statutes, though intended to be
to mesh with automatic preci-
phrases may take varied colors
from their varying contexts. Words defining classes of
stricted interpretations to avoid a literally required in-
of legislative purposes Is among the more challenging
and creative of the tasks entrusted to judges. There is
much of other things may be required for the particular
case. The work calls tru
has fairly been described
art.” ?
the point of mistakenly
the statutory scheme. §
ly for judgment in a field that
as being “not a science but an
cludes a small group of federal] employees from the basic
right to be heard when
' Frank, Words and Music:
pretation, 47 Colum. L. Rev. 1
(1) Congress evidenced its ex-
Some Remarks on Statutory Inter-
259 (1947).
TERE ier gene te at emmca gi
72
press purpose to make that right available to all em-
ployees, private or public, (2) Congress likewise evinced
the aim of avoiding second-class citizenship for federal
employees with respect to the elemental need for a dig-
nified form of wage substitute in times of unemploy-
ment, (8) the great bulk of federal employees are in
fact upon a substantial par with private workers in
having an opportunity to contest factual determinations
which, if adverse, may preclude unemployment compen-
sation, (4) the deprived group, probationary employees,
appears not to have been specially noticed during the
legislative process, and certainly not to have been singled
out for the special deprivation to which it is today held
subject, and (5) the opposite result from the majority’s,
more consonant with the deep commitment of our juris-
prudence to fair hearings as prerequisites to adverse
determinations, is readily reconcilable with the text and
essential objects of the pertinent statutory provisions.
These thoughts are elaborated in what follows.
(1) From the inception of the federal legislation for
federal funding, and limited federal supervision, of state
unemployment compensation programs, one of the few
requirements binding the States was that their laws
include provision for
“Co]pportunity for a fair hearing before an impar-
tial tribunal, for all individuals whose claims for
unemployment compensation are denied * * *.” So-
cial Security Act of 1935, § 303(a) (3), 49 Stat.
626, 42 U.S.C. § 503(a) (3).
At the time of that enactment, almost 40 years ago,
our notions of fair procedure embraced a far less sweep-
ing insistence upon the right to be heard than is pre-
valent today. The emphasis in the statute, moreover,
was on broad latitude for state legislativ2 preferences in
“all matters in which uniformity is not absolutely essen-
tial.” * Even in those circumstances, the right of a “fair
hearing” was enshrined as a requisite of suitably “high
? Message of the President, Jan. 17, 1935, H.Doc. No. 81, 74th
Cong., 1st Sess., p. 16. .
we naidlaais aie |
APs ARAL Aaa iE Sic ht Sn Scab Sasa E ae
*
‘ 78
unemployment compensation for federal employees, out
provided, an employee denied compensation was (and is)
to be given a “fair hearing.” 5 U.S.C. §§ 8502(b), 8503
2
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We come, however, to 5 U.B.C. § 8506(a), upon which
the present controversy centers. As set out in Judge
Bauman’s opinion for the court, the “findings” there
designated, including those concerning “the reasons for
termination of Federal service,” are declared to be “final
and conclusive for the purpose of sections 8520(d) and
8503(c) * * *” The question before us is whether ad-
where for the narrow group of employees who have never
had any opportunity to contest them.*
(3) When Congress wrote the provisions before us for
“federal employees,” it drew no distinction between per- a
°Td. at 4,
*S. Rep. No. 1794, 83d Cong., 2d Sess., in 3 U.S. Code, Cong. &
Ad. News 3891, 3894 (1954).
* More precisely, plaintiff Jean Christian did have a hearing be- .
fore a state hearing officer, and she prevailed—i.e, the reason \
asserted for her dismissal (and denial of unemployment compen- ‘
sation) was determined upon airing to be unfounded. In the view
rs
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74
manent and probationary workers. Neither the statute
nor its history suggests that anyone had such a distinc-
tion, or its possible consequences, in mind. The great
majority of federal employees are, of course, those in the
permanent category. The prototypical civil servant, the
one we are likely to envision when thinking in the global
concepts of legislators, is in this group. Given that real-
ity, and given the familiar procedures governing the
separation of permanent civil servants, it is reasonable
to infer that the “findings” declared “final and conclu-
sive” were conceived as those affecting, and resulting
from procedures affecting, permanent civil servants.
The very word “findings” buttresses. this inference. If
it is not inescapably true, the word commonly refers to
resolutions or determinations following deliberations upon
evidence in a manner of which the judicial process is
the ideal case. See Black’s Law Dictionary 758 (4th ed...
1957), citing cases. If the probable image is not always
of a full-scale trial “hearing,” it is certainly not of the
simple assertion of a “fact” or merely “the conclusory
statement of a result” where there has been no oppor-
tunity for countervailing presentations and no pretense
of considering two sides. Coleman v. Brucker, 257 F.2d
661, 662-663 (D.C. Cir. 1958) ; Sims v. Greene, 161 F.2d
87, 89 (3d Cir. 1947). And if the word “findings” means
anything more than such untested declarations, it was
an apt term for’ permanent civil servants, but not apt
at all for probationary people.
For decades before the enactment of UCFE in 1954,
permanent civil servants had a right to contest, and to
make presentations opposing, grounds asserted for their
dismissal. While the Lloyd-LaFollette Act, August 24,
*I am a long way from sharing the confidence of the majority
that Congress “surely was aware” of this distinction at the time
of the passage of the UCFE. It is always a risky business to
detect sure awareness in a busy Congress where the subject appears
never to have been mentioned. The assumption would be arguable
if the UCFE legislation had been under the charge of the committee
in either house concerned with civil service affairs. That was not
the case, however; the responsible committees handling UCFE were
House Ways and Means and Senate Finance.
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1912, § 6, 37 Stat. 555, as amended, 5 U.S.C. § 7501(b),
gave (and gives) no full-scale trial hearing, it required
notice and charges in writing, a reasonable time to an-
swer in writing, Opportunity to file affidavits and at
least an opportunity to seek discretionary grant of a
hearing. Executive regulations implementing these rights
have continued to expand them. Without tracking every
detail, there was a right in 1954 (when the UCFE was
enacted) to a written decision stating “the reasons for
the action taken and its effective date.” 5 C.F.R. § 9.102
(a) (1) (1949), Beginning in 1962, with Executive
Qrder No. 10987, 27 F.R. 550 (Jan. 18, 1962), perma-
nent employees have had a right to a full “hearing” to
contest dismissals, either at the agency stage or on ap-
_ peal. See 5 C.F.R. § 771.101 et seq. (1972).
(4) Thus, for the overwhelming majority of federal
employees, those in the permanent service, the findings
declared “final and conclusive” under § 8506(a) have at
all times been reached after at least some opportunity
for contest. No such opportunity has existed at any time
for the probationary employee. Our question is whether
plain language or anything else compels the harsh re-
sult of denying such an employee unemployment compen-
sation (no question is raised as to the finality of his
federal termination) on grounds he has never had a
chance to refute. :
It is not possible to Say with assurance that the “plain
language” of § 8506(a) requires a decision against the
plaintiffs. The term “findings” fits at best crudely the
ex parte declarations upon which plaintiffs were dis-
missed. But, neatly or not, the word does fit. If textual
analysis were the whole of our responsibility, plaintiffs
would probably deserve to lose. However, almost every-
thing else germane to our problem points the other way.
(5) The strikingly inferior position to which plain-
tiffs have thus far been relegated for unemployment
compensation purposes was never decreed—and seems
never to have been considered as a prospect—by the
Congress. The explicit purpose of putting public and
private employees on a par applies at least as much to
probationary workers (whose employment is more pre-
76
carious) as to permanent workers for purposes of insur-
ance against unemployment. The powerful impetus in
our law favoring the right to be heard weights against
the denial of such a right said to be required by a se-
mantic analysis so rickety as that erected upon the word
“findings” in the present context. The concern for “uni-
formity” of federal “findings,” which appears to have
prompted the finality provision, is scarcely grazed by
allowing a state hearing officer to find out with some
decent measure of reliability whether (solely, for unem-
ployment compensation purposes) the federal probation-
ary employee in fact drank when he should not have or
was improperly absent without reporting.’
The arguments against the majority’s conclusion ac-
quire at least some modest support from the constitu-
tional arguments that gave birth to this three-judge
court. Though the arguments are today rejected, neither
of my distinguished brethren suggests that the issues
thus decided lack substance. Thus, the construction I
would adopt has the merit of avoiding constitutional
doubt. United States v. Thirty Seven Photographs, 402
U.S. 368, 369 (1970); Schneider v. Rusk, 390 U.S. 17,
27 (1968); United States v. Rumely, 845 U.S. 41, 45
* The majority says a hearing solely for unemployment compensa-
tion purposes “as a practical matter, would limit the Government
in the discharge of probationary employees to an extent never
previously contemplated by Congress.” It should be stressed, there-
fore, that nobody claims a right of the probationary employee to
test his discharge in a hearing. The only question is as to the
availability of a hearing (given to everyone else, public or private)
on eligibility for unemployment compensation. When the majority
speaks of what is foreseen “as a practical matter,” it evidently
reflects the concern, exhibited in arguments to us for defendants,
that the prospect of a hearing—even though not testing the dis-
charge or capable of doing so—would make supervisors in the
employing agencies timorous about discharging probationary
people. This is a regrettable position. Insofar as it is accurate, it
portrays a regrettable situation. We ought not to be so “practical”
that we fashion legal judgments upon the premise that federal
officials commonly fire people upon grounds so tenuous that they
would not dare order the firings if they thought someone, some-
where else, without authority to reverse the firings, might so much
as air the asserted grounds.
77
(1953). More specifically, it is pertinent to recall ‘analo-
gous areas where the Supreme Court has avoided con-
stitutional doubt by discovering upon analysis that the
word “final” in a statute should not always be construed
to foreclose further review of a disputed question. Estep
v.. United States, 327 US. 114, 122, 127-28 (1945) :
Chin Yow v. United States, 208 U.S. 8 ( 1908) (Holmes,
J.) .
Finally, it is worth stressing that we deal with a class
of necessitous people claiming the benefits of broadly
& Philadelphia Steamboat Co. v. Norton, 284 US. 408,
414 (1932) ; Wheatley v. Adler, 407 F.2d 307 (D.C. Cir.
1968) ; United States y. Udy, 381 F.2d 455, 456 (10th
Cir. 1967); Phoenix Assurance Co. of N.Y. y. Britton,
289 F.2d 784, 786 (D.C. Cir. 1961). See also Pillsbu
eral agencies in which they were formerly employed. Cf,
Smith v. District nemployment ompensation Board,
/8/ Marvin E. Frankel
MARVIN E. FRANKEL
U.S.D.J.
7
SOI IN, OEE RET SEE ELLEN AO EPEL eI Es
Src. 1
, [Caption and Title Omitted]
aad NoTICE OF APPEAL TO THE SUPREME COURT
OF THE UNITED STATES—Filed September 30, 1972
Notice is hereby given that Jean Christian and Victor
L. Green, the Plaintiffs in the above-entitled action,
hereby appeal to the Supreme Court of the United States
from the final order, entered in this action on July 24,
1972, denying Plaintiffs’ requested relief and dismissing
the complaint. ,
This appeal is taken pursuant to 28 U.S.C. § 1253.
Dated: New York, New York
September 12, 1972
[Attorneys and Addresses Omitted |
Attorneys for the Plaintiffs -~
&
79
SUPREME COURT OF THE UNITED STATES
No. 72-5704 |
JEAN CHRISTIAN and VICTOR L. GREEN, APPELLANTS
SR EAE amr n>
v.
NEW YorK STATE DEPARTMENT OF LABOR,
DIVISION OF EMPLOYMENT, ET AL. ;
% ON CONSIDERATION of the motion of the appel-
_ lants for leave to proceed herein in forma pauperis,
; IT IS ORDERED by this Court that the said motion
de © be, and the same is hereby, granted.
April 16, 1973
80
SUPREME COURT OF THE UNITED STATES
No. 72-5704
JEAN CHRISTIAN and VicTOR L. GREEN, APPELLANTS
v.
NEW YORK STATE DEPARTMENT OF LABOR,
DIVISION OF EMPLOYMENT, ET AL.
APPEAL from the United States District Court for
the Southern District of New York.
The statement of jurisdiction in this case having’ been
submitted and considered by the Court, probable juris-
diction is noted.
April 16, 1973
W ou. s. covernwent PRINTING OFFICE; 1973 502539 665
4
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