Feeney v. Com. of Mass.

475 F. Supp. 109, 20 Fair Empl. Prac. Cas. (BNA) 772, 1979 U.S. Dist. LEXIS 10327, 20 Empl. Prac. Dec. (CCH) 30,228

Opinions

MEMORANDUM AND ORDER

After the Supreme Court’s opinion and judgment reversing this court’s decision in the present case, Personnel Administrator of Massachusetts v. Feeney,-U.S.-, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979), plaintiff moved that we set a briefing schedule and entertain oral argument on plaintiff’s due process claims which, she says, have not so far been considered in this litigation and were not foreclosed by the Supreme Court’s ruling. Plaintiff’s motion is vigorously opposed by the Commonwealth of Massachusetts, which has moved for immediate entry of a final judgment in its favor.

This court has already written in the present case two opinions concerning the Massachusetts Veterans Preference statute, the more recent in response to a remand from the Supreme Court directing reconsideration of our first opinion. The matter is now before us upon the Court’s remand for further proceedings consistent with its opinion. Id.,-, 99 S.Ct. 2282. At this late date, having in mind that the Court’s decision commands the support of seven Justices, we would think it improper to delay implementation of the Court’s opinion without a persuasive showing that the issues sought to be presented were both substantial and proper for our consideration at this time.

It is true that a violation of due process as well as of equal protection was alleged in the complaint, and that due process arguments were advanced in the briefs within the context of claims of sex discrimination. It is also true that the majority opinions of this court, and the decision of the Supreme Court overturning same, were premised on the equal protection clause of the fourteenth amendment,¹ leaving it to this court to deal now with any remaining due process issue that was earlier raised and not decided.

We do not believe, however, that the due process issues that were pleaded and previously addressed in the parties’ briefs and arguments encompassed the principal contention plaintiff now seeks additional time to brief and argue. The argument now sought to be raised does not rest on alleged sex discrimination but on the claim that the Massachusetts Veterans Preference law denies access to public employment on a wholesale basis and therefore deprives the excluded non-veterans, who would be male as well as female, of liberty. See Hampton v. Mow Sun Wong, 426 U.S. 88, 96 S.Ct. 1895, 48 L.Ed.2d 495 (1976).² This argument was not developed until now and, for reasons hereinafter discussed, we are not inclined to permit plaintiff to begin over again with this new theory of constitutional violation.

The due process claims stated in the complaint and in previous briefs were of a different order, being allied to the sex discrimination claim underlying plaintiff’s equal protection argument. Paragraph 36 of the complaint alleged that by systematically excluding qualified and eligible female applicants on the basis of sex, the Massa ehusetts Veterans Preference statute deprived the plaintiff of the equal protection of the law and of due process. Sex discrimination was also central to a due process claim asserted in paragraph 45 resting on the sex-biased nature of the armed forces. The major due process argument in plaintiff’s brief proceeded on the theory that, by creating an irrebuttable presumption in favor of veterans, the statute worked an invidious discrimination against women. These theories were all bottomed on sex discrimination. It was not contended that non-veterans of both sexes were unconstitutionally deprived of a liberty interest in public employment.

The due process arguments set forth in the preceding paragraphs — which are the ones raised in the previous course of this litigation — are, we think, rendered insubstantial by the Supreme Court’s decision in this case. While the Court’s decision speaks to the equal protection clause, it leaves little if any room for sex discrimination arguments resting on the due process clause. Thus the claim in paragraph 45 of the complaint, referring to due process and equal protection, was specifically disposed of on pages 19-20 of the Court’s opinion, although without actual reference to the due process component. We find it inconceivable that after rejecting a claim of sex discrimination based on equal protection grounds, the Court would accept a comparable claim resting on due process grounds. Nothing in its opinion or in the applicable law invites such an assumption. We therefore hold against plaintiff on these originally stated due process claims at this time, believing, that any further argument to us concerning them would serve no purpose, and would furthermore be inappropriate as it would needlessly delay entry of judgment and unfairly affect those who stand to benefit from the Massachusetts Veterans Preference law.³ If we have misread the Court, plaintiff is, of course, free to seek correction by the Court itself.

We are left with plaintiff’s newly-raised due process argument — that non-veterans’ substantive liberty interest in public employment is subverted by the Massachusetts Veterans Preference law. As already indicated, this presents a new legal theory, distinct from any previously stated. While upon remand from the Supreme Court we feel obliged to determine previously raised questions that still remain open (and so have here decided the particular due process arguments mentioned in the preceding paragraph), we do not feel the same way about newly-tendered legal theories. We could perhaps entertain such claims as a matter of discretion. However, at this very late stage, an interest in orderly litigation cautions against entertaining arguments not previously raised absent very compelling circumstances; parties should ordinarily litigate all issues at one time rather than piecemeal. Cf. United States v. Charest, 602 F.2d 1015 at 1018 (1st Cir. 1979) (government may not, on appeal, change focus of case and thereby seek to present an entirely different case); Rodriguez de Quinonez v. Perez, 596 F.2d 486, 492 (1st Cir. 1979), petition for cert. filed, 47 U.S.L.W. 3826 (U.S. June 26, 1979) (petition for rehearing will not be granted to hear new argument which could have been earlier raised); Troxel Manufacturing Co. v. Schwinn Bicycle Co., 489 F.2d 968, 970-71 (6th Cir. 1973), cert. denied, 416 U.S. 939, 94 , 40 L.Ed.2d 290 (1974) (no abuse of discretion to deny motion to assert alternative theory of recovery after defendant had had to defend against theory originally presented at both the trial and appellate level); Powers v. Bethlehem Steel Corp., 483 F.2d 963, 964 (1st Cir. 1973) (noting importance of bringing an orderly end to litigation). It may be that decisions have recently come down affording somewhat greater support to plaintiff’s new theory than was available two years ago, but clearly the law has not changed so much in plaintiff’s favor that the present denial of relief is demonstrably wrong or palpably unjust or erroneous. See Legate v. Maloney, 348 F.2d 164, 166 (1st Cir. 1965). To the contrary, plaintiff’s new claim at very best faces an uncertain future, and its prospects are scarcely improved by the fact that a sizeable majority of the Supreme Court has — on another ground to be sure — just approved the Massachusetts Veterans Preference law. It would be unfair to defendants, after the latter have prevailed on the equal protection and now the due process theories originally presented, to allow plaintiff to test yet another theory and to continue on what would become a new law suit. This is not to say that plaintiff or others may not pursue whatever further state or federal remedies may yet properly be available to them concerning the controversial legislation in issue, but the time has come to put this particular case to rest.

We therefore deny plaintiff’s motion for further argument. We allow defendant’s motion for entry of judgment in the form proposed in the draft, except we strike the word “otherwise” in the fourth line and insert the words “for that reason.”

So ordered.

Footnotes

1

. Writing for the Court, Mr. Justice Stewart stated the issue as follows: “The sole question for decision on this appeal is whether Massachusetts, in granting an absolute lifetime preference to veterans, has discriminated against women in violation of the Equal Protection Clause of the Fourteenth Amendment.” Personnel Administrator of Massachusetts v. Feeney, - U.S. at-, 99 S.Ct. at 2292 (U.S. 1979).

2

. Plaintiff did cite Hampton v. Mow Sun Wong, 426 U.S. 88, 96 S.Ct. 1895, 48 L.Ed.2d 495 (1976), in a supplemental memorandum submitted after the Supreme Court’s remand for reconsideration in light of Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), but based her substantive due process liberty argument on the statute’s “near blanket, permanent exclusion of women from a major sector of employment.” [Emphasis added.]

3

. As we point out in this memorandum, the plaintiff was fully heard on her due process claim in the previous course of the litigation in this court on her briefs and in oral argument. The court did not reach the due process argument, electing to rest the decision on the equal protection ground, Anthony v. Com. of Mass., 415 F.Supp. 485, 499 n.15. (The argument was considered in the dissenting opinion. Id. at 504-05 n.9.) This, of course, did not foreclose plaintiff as the prevailing party from presenting the due process claim to the Supreme Court. Dandridge v. Williams, 397 U.S. 471, 475-76 n.6, 90 S.Ct. 1153, 1156, 25 L.Ed.2d 491 (1970). We now have decided against plaintiff on the due process claim in light of the previous hearing of the issue and the Supreme Court’s opinion and judgment. We think such consideration can hardly be viewed as “dispos[ing] of plaintiff’s sex based due process theory in one sentence.” We know of no authority which requires the court to hear plaintiffs claim a second time.