# Appendix — Christian v. New York State Dept. of Labor > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0231%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1974 - **Citation:** 414 U.S. 614 ## Text @ "gage wnte me 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- . i f N L r§ t & ' s 5 a a a ea i ST PNA ITE REET Ho9, so lag ee Oe ee, ee 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 ‘ b i ; i. ¥ : i ¥ 4 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] i i ar alts . : atuntiie oie gn ee ee OE i eT TET a a Te ee Ne TE ss See Oe : *asned poo #noYyzTM Gol anoXx 41nb nox [U833TIM PpueH] NOILWNIWYSLaG *3zunNoD jou TITM zuewAoTdue-jJTes worzz shutuaes pue juseudoTdwe-jTes -o90z7$ 4seaeT je peutes Io sysem f% JO yore ut skep ¢ uey3 SSeT jou azeAoTdue ue soz pexz0m ATZuenbsesqns saey nok TtTzun OL/E/0T 5utuut6eq potied ey} 20Z nod 03 pted aq ues S3TJousq soueANSUT AUSswWAOTdWeUN ON "ON *300W ‘S'S €€HT-bb-0S0 [ - 0L-9-I1l eq avert & LOZIT “A°N ‘uATHXOOIg ueATD © S0PTd. seTeseg Tg u ' i3 ueTISTIAYD uPer TTOOT °A “N ‘420% MON = _ | 398238 430Z 380M zg SSOIPPV 9TS SOTFIFO TeDOT S°TIFO TROOT LNYWIWIO OL NOILYNIWYSLaG dO AOILON zuewAoTdugq jo uotstatg YOdVT dO LNAWLYVdad ALVLS MYOA MAN NOILVNINUGLIG AO FOLLON *LIAVGIddY NVILSIYHD OL VY LISIHXY See oe ' ; 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ROPE SINE EES eet aes | ’ J / ae mika rduc "PETNAGAO ST UoTIeUTWZEzep TeTZTUT ayL seTsjJoy NIALSNIGM *d NOLTIW /s/ *NOISIOgd ————— *ZUuewAOTdue z90y eaesT ATTzeAZuNTOA ou PTP 8US *ebreYyoOStTp aT9y eyoAoId 03 \Yrouuew e UT 308 ATINJTITM 30u PTP SYS SoUsSqe rey A0Z UOSR|Z 24} JO pestape’' gatordre 243 PeY butaey ‘T aequezdeg pue t¢ 3sniny uo 4IOM worzy Ssouesqe A9sYy perztnbez SOTITTTQTsuodsez Tej,uezed S,3UePUTETD :NOINIdO *,UOTZeGord butanp uoTzeUTUIAL,, 243 NZ@-Td-w20qg uo pezz0dez zeXoTduse sys uoTUN 2eY eAReY 03 poezduez je FUueUTeTO se uotjeredes z0z3 uoseaz *TnJsssonsun sem nq peor AutT “OL6T “2 1AqQ0RD0 sseutsnq jo asoto 2uy -penuTtjuos- Q4-68S-a49n ST AMON DF ret cine OY 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 UsE YouR NEW YorRK STATE EMPLOYMENT SERVICE ey} Ssexew prvog ey ‘eseo sTYyR ut AUOUT38e3 pUe pz0Dez Buz UOC peseg *Teedde uo zeUuoTSsTuMOD TeTI3ZSNpUI ey JO JTBYSq UO pez3zTWaNS AUeWEeReRs US9Z3ITAM © PeTSPTSuCoO pzvog suL ZSUCTSSTuMIOD TeTza3ysnpur ey Aq pezItwqns sem jZueWwejeZsS UER3TIM ¥ *Bbutzeey yons 3e souezeedde jo nett ut ‘use Sem Auout3se3 pue pezeedde juewtero yotym 3e pue pzeey eq 03 Aztungzoddo TInj e Ppepzoooe 210M seTzized [Te YOTYM We serTezeIT BYR Be70JZeq pTeYy sem buTszeSeYy Y 33°T ATTzeRun wozjz “epod sez ~Aotdweun 2103 Bbut{ttz eefoTd TROOT ey JO UOTIeUTWAERe *ebreyostp zey butyoaorzd Aq esneo poob ynoy3zTtm WuewAoTdwe 1235y TOA eYys esnRedseq ‘OL6T ‘€ 19Q0990 SATRIOEZZEO SQZTJOUseq HBuTATEeDe2 e3s peitun e JO § ST3ITL ‘G8 zeRdeYUD ASpuN uUOTRZeSUSdUIOD AUSUW ped zewz03 e& ‘ZueUTeTO BHbuTAztTenbstp eotsjo T3TUT O43 S5uT[TNzzeao ‘TL6T ‘g Azenuer pets SSISJSI SYR JO UOTSTOep 3sYyR Wor sTeedde ASUOCTSSTuMIOD TeETAISNpul SUL szequow Texuez Azzey ‘uttTeboy *w uyor aGuvod aHL dO NOISIOgd *pezeqs saoge OWT} Sy} UTUITM ‘STOOT “A°N ‘320K MON ‘onueAY uzubta 00S ‘pzeog 243 O03 peTtTew eq prTnoys Teedde yons jo eoT ROU *ZuowjZIAedeq PpATYL ’342N0D ewezdns ue33TIM ey} JO ucTSTATG UT PSATOAUT MPT e432 ez10j3eq Teedde sy3 3e perzeedde oym Aqezey3 Teeddy soueznsuy juewAoTdweup | e3eT Teddy ey} 03 UOCTSTOep Yyons 3O suot3senb Teedde Aew preog *INaSaddd YAOX MON ‘UATHOOIg pezoezze Azaed zey3z0 Aue 10 zeUucTSSTUMIOD ey} ‘UOTSTOep sty JO but{Ttew ey3 zeqzge skep ,. 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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). 8 TR PR RR OR StL. Se > ab ht rors Vary LIT by - " sees m , i PED ATED eth AK REI yhagtanbal Rese Rass Hea 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 SONAR RIG ity bis arceny soseeeaieiesieieaniineiaaiaeanmeiaanibenameansemaeemnmensmmee 2h Bc REL SATIS PLN TER HO NDR eR ‘ ’ 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 s ey “— 2. @® 3 @ s S a = 3 & 3 5 | e 8. S @ = a a RE ta ne 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 rs run REI ito rea 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. ™ NE OPAL OP AAA! LON eT Re A Oe tras NI TC Oh OR ARO Net a Shs 100 A WHI AANA ADAGE ~ 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 vandel te eee CE A EA iat tt Si elk Us K prepares tcewieie acgetes* PS an OT Ra TT AM OF EE LS PRR eB --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0231%3A1. Public record. Not legal advice.