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Records of the White House Office of the Chief of Staff to the President (George H. W. Bush Administration)
Andrew Card's Files
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Originally Processed With FOIA(s):
FOIA Number:
2025-0373-S
2025-0373-S
FOIA
MARKER
This is not a textual record. This is used as an
administrative marker by the George Bush Presidential
Library Staff.
Record Group/Collection:
George H.W. Bush Presidential Records
Collection/Office of Origin:
Chief of Staff, White House Office of
Series:
Card, Andrew, Files
Subseries:
OA/ID Number:
08373
Folder ID Number:
08373-009a
Folder Title:
Counsel's Office Materials [1]
Stack:
Row:
Section:
Shelf:
Position:
G
15
22
2
Withdrawal/Redaction Sheet
(George Bush Library)
Doc. No. / Type
Subject/Title
Date
Restriction
Classification
01. Resume
Re: Janis M. (Sordillo) Berry; birthdate redacted. (1 pp.)
n.d.
(b)(6)
02. Resume
Re: Janis M. (Sordillo) Berry; birthdate redacted. (1 pp.)
n.d.
(b)(6)
03. Memo
C. Boyden Gray to President Bush, Re: Fifth Circuit Vacancy. (1
06/22/90
(b)(6)
pp.)
Page 1 of 1
Collection:
Record Group:
Bush Presidential Records
Office:
Chief of Staff, White House Office of
Series:
Card, Andrew H., Jr., Files
Subseries:
WHORM Cat.:
File Location:
Counsel's Office Materials [1]
Pinksheet Number:
RML16185
OA/ID Number:
08373-009a
Date Closed:
5/16/2025
FOIA/Sys Case #:
2025-0373-S
Re-review Case #:
P-2/P-5 Review Case #:
PM :
2023377341-
2024566279:# 2
THE WHITE HOUSE
WASHINGTON
Date: 12.22.91
AC HAS SEEN
TO: Boyden Gray
FROM: ANDY CARD ARefudy
Action
Your Comment
Let's Talk
December 20, 1991
FYI
JTTER
Would it be appropriate to
share this with BillBarr?
1 to preclear the Texas congressional map is
ating factors - (1) alternative plans
iolated the Voting Rights Act were never
III we Legistature rur formal votes, and (2) there was only minimal
opposition from voting rights groups to the plan.
Despite these shortcomings, an independent analysis by Justice could have and should
have shown that the State failed to meet its burden under Section 5 of the Voting Rights
Act that its plans were free of a racially discriminatory purpose or retrogressive effect.
Indeed, it appears that Justice's reasons for rejecting the North Carolina maps on
Wednesday should have led to the rejection of the Texas map.
Specifically, the Texas map should have been rejected because:
Since the burden is on the state and since the Attorney General should
object if he has any doubt about a plan's discriminatory purpose or effect,
the extraordinarily convoluted nature of the Democrats' districts in Dallas
would seem reason enough. This is especially true since a far less
convoluted district with the same black percentage was submitted to the
Attorney General.
The districts are so odd-shaped in order to protect Democrats Martin
Frost and John Bryant. Basically, the 30th district was drawn for black state
Senator Eddie Bernice Johnson, who was willing to trade blacks for liberal,
monied whites. Frost and Bryant need the blacks as reliable Democrat votes
in their increasingly Republican area. In other words, the failure to include
all blacks in the Johnson district in order to aid white incumbents is
sufficient evidence of discriminatory purpose and effect since, while Johnson
Dwight D. Eisenhower Republican Center
310 First Street Southeast
Washington, D.C. 20003
(202) 863-8638
Telex: 701144
FAX: (202) 863-8820
AC SEEN
a-
ROPES & GRAY
ONE INTERNATIONAL PLACE
ofgi
BOSTON, MASSACHUSETTS 02110-2624
1001 PENNSYLVANIA AVENUE, N.W.
30 KENNEDY PLAZA
(617) 951-7000
SUITE 1200 SOUTH
PROVIDENCE, R.I. 02903
TELECOPIER: (617) 951-7050
WASHINGTON, D.C. 20004
(401) 455-4400
(202) 626-3900
TELECOPIER: (401) 455-4401
TELECOPIER: (202) 626-3961
Writer's Direct Dial Number: (617) 951-7569
December 16, 1991
FEDERAL EXPRESS
The Honorable Andrew H. Card, Jr.
Assistant to the President
The White House
1600 Pennsylvania Avenue, N.W.
Washington, D.C. 20500
Attention: Ms. Linda Casey
Re: United States District Court District of
Massachusetts at Boston
Dear Ms. Casey:
Thank you for trying to schedule an appointment with Andy.
I know that the times are extraordinarily hectic and, as I
explained, I would not have called amidst all of the ongoing
events, except that I understand that a decision may be reached
on the Boston Federal Judgeship by the end of this year, so time
appeared of the essence. Again, thank you very much for your
efforts.
It occurs to me that I have not forwarded my resume and
certain of the supporting letters of recommendation, of which I
am exceedingly proud. I do so herewith, and would appreciate
your forwarding these to Andy.
Simply stated, I would be honored to be, and to serve as, a
United States District Judge for the District of Massachusetts.
Jumily Very truly yours
Janis M. Berry
JMB/gb: JMBANDYC.XO
Enclosures
THE WHITE HOUSE
WASHINGTON
November 30, 1989
Dear Mrs. Berry:
I am delighted to add my warmest congratulations to the
many you have already received for the honor bestowed
on you by the Italian American Association. You are
most deserving of their Achievement Award.
Your work as a Supervising Attorney of the Narcotics
Unit of the United States Attorney's Office in Boston
and as Chief of the United States Department of Justice
New England Organized Crime Drug Enforcement Task
Force serves as a shining example of the determined
effort that is needed if we are to remove drug dealers
from our communities.
You are not only a credit to your Italian-American
heritage but also a wonderful role model for women
seeking careers in public office. For your service to
the people of Massachusetts and New England and for
the example you set for our Nation, I thank you and
commend you for a job well done.
Barbara joins me in sending best wishes for every
future success. God bless you.
Sincerely,
ag Bush
Mrs. Janis M. Berry
49 Vine Street
Saugus, Massachusetts 01906
The Commonwealth of Massachusetts
Treasury Department
State House. Boston 02133
Joseph D. Malone
Treasurer and Receiver General
November 26, 1991
The Honorable Andrew H. Card, Jr.
Assistant to the President and
Deputy to the Chief of Staff
The White House
1600 Pennsylvania Avenue, N.W.
Washington, D.C. 20500
Dear Andy:
Enclosed is a recommendation letter that I sent to the
Justice Department on behalf of Janis Berry. Janis has applied
to be a federal district court judge in Boston.
Andy, I think Janis is an outstanding candidate. I would
very much appreciate it if you could meet with Janis at your
convenience.
J.Malon Very truly yours,
Joseph D. Malone
Treasurer and Receiver General
JDM/lw Enclosure P.A. my very but wishes for
a happy holiday season for
you and your family
DECAS, MURRAY & DECAS
ATTORNEYS AT LAW
132 NORTH MAIN STREET
MIDDLEBORO
MASSACHUSETTS 02346
(508) 947-4433
REPLY TO POST OFFICE BOX 201
WAREHAM OFFICE:
GEORGE C. DECAS
219 MAIN STREET
DANIEL F. MURRAY
MIDDLEBORO, MA 02346
(508) 295-2115
WILLIAM C. DECAS
FAX (508) 947-7147
November 29, 1991
Honorable Andrew H. Card, Jr.
The White House
Washington, D.C. 20007
RE: Appointment of United States District
Court Judge of Massachusetts
Dear Andy:
I am very enthusiastic about Janis M. Berry, who
is a candidate for one of the above judicial vacancies.
I serve with Janis on the Governor's Judicial
Nominating Council. She is a highly respected member of that
committee. I base this on my observations of her and her
relationship with the other committee members, during numerous
meetings since last spring.
I do not need to tell you that Janis has been a loyal
and positive force within the Massachusetts Republican Party
for a long time. The combination of her political background
and professional qualifications is not easily found in Massachusetts.
I know you understand that and hope that you will recommend her
candidacy.
I do know some of the other candidates, who have
excellent credentials. Janis stands out, even in this strong field.
Very sincerely,
1 George C. Decas
GCD/cap
91-104
JUSTINIAN LAW SOCIETY
SOCIETYON
of Massachusetts, Inc.
MASS
December 9, 1991
President
Elizabeth A. DiLoreto
Mr. Andrew H. Card, Jr.
Mr. Ronald C. Kaufman
Vice President
Assistant to the President and
Deputy Assistant to the
Anthony R. Pelusi, Jr.
Deputy to the Chief of Staff
President
The White House
Secretary
The White House
Joseph J. Machera
1600 Pennsylvania Avenue, N.W.
Old Executive Office Building
(617) 289-8646
Washington, D.C. 20500
17th Street & Pennsylvania Ave., N.W.
Assistant Secretary
Washington, D.C. 20500
Maria C. Moynihan
(508) 356-2699
RE: Janis Sordillo Berry
Treasurer
Peter J. Carrozza
Candidate for the United States
(508) 685-0666
District Judge for Massachusetts
Historian
Leonard S. Vadala
Gentlemen:
Immediate Past Presidents
Carmen A. Frattaroli
The Justinian Law Society writes to endorse the appointment of one of
Hon. Domenic J. F. Russo
Salvatore F. Stramondo
our members, Janis Sordillo Berry, who is a candidate for the United States
Hon. Joseph A. Furnari
District Court Judge for the District of Massachusetts. The Justinian Law
Hon. Anthony J. Randazzo
Hon. Lillian D'Ambrosio-
Society, founded in 1943, is composed of lawyers and judges of Italian
Millgroom
Hon. Joseph V. Ferrino
Descent. Recently, the Society was honored to have United States Supreme
Court Justice Antonin Scalia address our annual meeting and to have Justice
Scalia sit "en banc" at this celebration with our Justinian Law Society Judges,
Federal and State, of the Massachusetts Courts.
We believe it is important that lawyers of Italian background serve as
Judges to ensure ethnic diversity in our bench. The Society strongly supports
Janis, the first Italian woman who would sit as a Federal Judge in our District.
Therefore, on behalf of the Justinian Law Society, we are extremely proud to
urge her appointment to the Federal Court in the District of Massachusetts.
On a more personal level, I wish to make note of Janis' strong
commitment to the Massachusetts Bar Association (MBA). As former Vice
EXECUTIVE OFFICE
220 Beach Street, Revere, MA 02151
Messrs. Andrew H. Card, Jr. and Ronald C. Kaufman
December 9, 1991
Page 2
Chair of the Criminal Justice Section Counsel of the MBA, it was a
pleasurable and enlightening experience to serve with Janis on the counsel
and at our continuing education programs.
Sincerely,
Anthony Jr.
Vice President/President-elect
Justinian Law Society
ARP/mlm
cc
Barbara Drake, Esquire
Department of Justice
bcc Janis M. (Sordillo) Berry
ROPES & GRAY
ONE INTERNATIONAL PLACE
BOSTON, MASSACHUSETTS 02110-2624
1001 PENNSYLVANIA AVENUE, N.W.
30 KENNEDY PLAZA
(617) 951-7000
SUITE 1200 SOUTH
PROVIDENCE. R.I. 02903
TELECOPIER: (617) 951-7050
WASHINGTON, D.C. 20004
(401) 455-4400
TELECOPIER: (401) 455-4401
(202) 626.3900
Thomas L. P. O'Donnell's Direct Dial Number: (617) 951-7455
TELECOPIER: (202) 626-3961
December 13, 1991
C. Boyden Gray, Esquire
Counsel to the President
The White House
Washington, D. C. 20500
Dear Mr. Gray:
I write to support the application of our partner, Janis M.
Berry, for appointment as judge of the United States District
Court for the District of Massachusetts.
Janis came to Ropes & Gray in 1986 as a senior associate
following distinguished service with the Department of Justice,
including service as Chief of the New England Organized Crime
Drug Enforcement Task Force. Bringing in an associate at her
level of experience was, and is, unusual for us as we are less
inclined to hire laterally than most large law firms. However,
Janis presented unusually strong credentials and her performance
after joining us fulfilled our high expectations. As a result,
she became a member of the firm in 1989.
I have followed Janis's career with more than ordinary
interest, as I was chairman of the Policy Committee of the firm
when she was hired and when she became a partner. She is an
excellent lawyer who has made an extraordinary contribution to
important public and professional endeavors. Although I would
regret her leaving Ropes & Gray, Janis would be an exemplary
judge and I recommend her with enthusiasm.
Yours sincerely,
Thomas
Thomas L. P. O'Donnell
TLPO'D:jaw
Withdrawal/Redaction Sheet
(George Bush Library)
Document No.
Subject/Title of Document
Date
Restriction
Class.
and Type
01. Resume
Re: Janis M. (Sordillo) Berry; birthdate redacted. (1 pp.)
n.d.
(b)(6)
Collection:
Record Group:
Bush Presidential Records
Office:
Chief of Staff, White House Office of
Series:
Card, Andrew H., Jr., Files
Subseries:
WHORM Cat.:
File Location:
Counsel's Office Materials [1]
Date Closed:
5/16/2025
OA/ID Number:
08373-009a
FOIA/SYS Case #:
2025-0373-S
Appeal Case #:
Re-review Case #:
Appeal Disposition:
P-2/P-5 Review Case #:
Disposition Date:
AR Case #:
MR Case #:
AR Disposition:
MR Disposition:
AR Disposition Date:
MR Disposition Date:
RESTRICTION CODES
Freedom of Information Act (FOIA) - [5 U.S.C. 552(b)]
Deed of Gift Restrictions
(b)(1) National security classified information
C(1) Closed by Executive Order 13526, governing access to national
(b)(2) Release would disclose internal personnel rules and practices of an
security information
agency
C(2) Closed by statute or by the agency which originated the information
(b)(3) Release would violate a Federal statute
C(3) Closed in accordance with restrictions contained in donor's deed of
(b)(4) Release would disclose trade secrets or confidential or financial
gift [formerly listed as only C]
information
PRM. Removed as a personal record misfile
(b)(6) Release would constitute a clearly unwarranted invasion
of personal privacy
(b)(7) Release would disclose information compiled for law enforcement
Presidential Records Act - [44 U.S.C. 2204(a)]
purposes
(b)(8) Release would disclose information concerning the regulation of
P-2 Relating to the appointment to Federal office [(a)(2) of the PRA]
financial institutions
P-5 Release would disclose confidential advice between the President and
(b)(9) Release would disclose geological or geophysical information
his advisors, or between such advisors [(a)(5) of the PRA]
concerning wells
JANIS M. (SORDILLO) BERRY
(Resume Summary)
Ropes & Gray
One International Place
Boston, Massachusetts 02110
(617) 951-7569
Partner: ROPES & GRAY; Boston, MA (1986 - Present)
Chief: NEW ENGLAND ORGANIZED CRIME DRUG ENFORCEMENT TASK FORCE:
U.S. Department of Justice (1984 - 1986)
Special Trial Attorney: NEW ENGLAND ORGANIZED CRIME STRIKE FORCE:
U.S. Department of Justice (1981 - 1984)
Assistant U.S. Attorney: DISTRICT OF MASSACHUSETTS (1980 - 1981)
Associate: BINGHAM, DANA & GOULD; Boston, MA (1975 - 1980)
Law Clerk to Chief Justice Edward F. Hennessey: MASSACHUSETTS SUPREME
JUDICIAL COURT (1974 - 1975)
Selected Pro Bono Activities, Bar Related Activities and Honors
GOVERNOR WELD APPOINTMENT:
APPOINTMENTS BY JUSTICES OF THE
JUDICIAL NOMINATING COUNCIL
MASSACHUSETTS SUPREME JUDICIAL
COURT:
STATE TREASURER MALONE APPOINTMENT:
- BOARD OF BAR OVERSEERS
GENERAL COUNSEL AND TRUSTEE. A
HERO'S WELCOME CHARITABLE FOUNDATION
- SPECIAL INVESTIGATIVE COUNSEL TO
THE COURT
SECRETARY OF PUBLIC SAFETY
APPOINTMENT: CO-CHAIR STATE POLICE
- COMMITTEE FOR PUBLIC COUNSEL
REORGANIZATION COMMITTEE
SERVICES FOR THE INDIGENT
SECRETARY OF CONSUMER AFFAIRS
APPOINTMENT BY JUDGES OF THE U.S.
APPOINTMENT: TASK FORCE IN RE BOARD
DISTRICT COURT: CHAIR, MAGISTRATE
OF REGISTRATION IN MEDICINE
MERIT SELECTION PANEL
BOARD OF TRUSTEES
COUNSEL AND VICE PRESIDENT
ATLANTICARE HOSPITAL
FEDERAL INN OF COURT
BOARD OF ADVISORS
BOSTON BAR ASSOCIATION TASK FORCE ON
NATIONAL TRIAL COMPETITION
DRUGS AND COURTS
RECIPIENT ITALIAN WOMAN OF THE YEAR
RECIPIENT DEPARTMENT OF JUSTICE
AWARD
SPECIAL COMMENDATION AWARD
Lectures, Teaching and Publications
Conference Chair or Lecturer for: Massachusetts Annual Advocacy Institute;
Massachusetts Continuing Legal Education: Massachusetts Bar Association:
Boston Bar Association; Harvard Law School; Advanced Trial Advocacy Institute:
U.S. Department of Justice Advocacy Institute. See publication citations.
Personal Information
Married to Richard G. Berry in 1970. DOB:
(b)(6)
(age 42).
Daughters: Alexis (13); twins Ashley (8) and Lindsey (8). B.A. magna cum
laude, Phi Beta Kappa; J.D. cum laude, Executive Board of Law Review: Boston
University.
JANIS M. (SORDILLO) BERRY
Ropes & Gray
One International Place
Boston, Massachusetts 02110
(617) 951-7569
LAW PRACTICE
Partner
Principally engaged in civil and
ROPES & GRAY
criminal litigation in federal and
One International Place
state trial and appellate courts.
Boston, Massachusetts
In civil matters, this has included
September, 1986 - Present
jury trials representing both
plaintiffs and defendants in tort
litigation in complex product
liability cases, wrongful death
actions and personal injury cases
involving expert medical evidence, the
biomechanics of injury mechanism,
state-of-the-art and standard-of-care
issues in liability determinations,
and accident reconstruction expert
analysis. In corporate matters, this
has included complicated business
litigation in multi-million dollar
asset cases, with multiple parties and
in inter-district litigation.
Other general civil practice includes
(Descriptions of, and citations
representation in "independent
to, major cases and trials are
counsel" internal corporate reviews;
set forth in the summary of CIVIL
advice and representation in business
AND CRIMINAL TRIAL AND APPELLATE
matters, including contracting
PRACTICE attached to this
disputes; litigation in computer
resume.)
cases; real estate work-out
litigation; general representation in
insurance-related matters;
construction and coverage under
directors and officers insurance;
representation in health-related
matters, primarily as counsel to
hospitals and health care providers;
and environmental litigation.
In criminal matters, practice has
included representation involving
corporate and executive criminal
JMBOCT91.XO
liability, both federal and state,
especially in the area of tax
investigations and litigation;
government contract procurement
matters; "white collar" defense
representation; and advices to and
representation of attorneys.
In addition, criminal defense practice
has included pro bono representation
in felony cases in the Massachusetts
Federal District Court and the
Massachusetts Superior Trial Court and
in appeals by appointment of the First
Circuit Court of Appeals and in state
court appeals to the Massachusetts
Supreme Judicial Court and the
Massachusetts Appeals Court.
Certification pursuant to standards of
practice for special list of private
counsel who are qualified for court
appointment to provide pro bono
representation to indigent individuals
charged in first degree murder cases
in the Massachusetts courts.
Chief
Inter-district supervisor of major
NEW ENGLAND ORGANIZED CRIME
federal narcotics and related tax and
DRUG ENFORCEMENT TASK FORCE
money laundering cases brought in the
U. S. Department of Justice
New England states. One of 12 special
Boston, Massachusetts
Department of Justice appointees for
designated regions in the United
October, 1984 - September, 1986
States. Responsible for review and
oversight of multi-district
investigations and prosecutions under
Chief Prosecuting Attorney
the United States Code, Title 21 -
NARCOTICS UNIT
narcotics laws; Title 26 - criminal
U.S. ATTORNEY'S OFFICE
tax laws; and Title 31 - bank currency
District of Massachusetts
transaction reporting and money
Boston, Massachusetts
laundering laws; administration of
Federal/State budget for New England
October, 1984 - September, 1986
based cases, and the Narcotics Unit
operating budget.
Lead prosecutor in grand jury
investigations and jury trials in a
series of significant narcotics,
criminal tax and official corruption
cases indicted in the District of
Massachusetts. See summary of
prosecutions and case citations
attached hereto.
JMBOCT91.XO
-2-
Honors: Recipient of Department of
Justice Special Commendation Award,
the highest award given by the
Criminal Division for superior
performance.
Special Trial Attorney
Responsible for conduct of grand jury
NEW ENGLAND ORGANIZED
investigations and trial of cases
CRIME STRIKE FORCE
involving corporate tax fraud and
U. S. Department of Justice
personal tax evasion, securities
Boston, Massachusetts
violations and fraudulent business
practices by mail and wire fraud;
August, 1981 - October, 1984
investigation and prosecution of
criminal cases brought under the
complex of laws known as the Racketeer
Influenced and Corrupt Organizations
Act (RICO) and the Continuing Criminal
Enterprise Act (CCE) and the predicate
crimes thereunder; supervising
attorney for cases utilizing Title III
electronic surveillance and undercover
operations.
Assistant U. S. Attorney
Responsible for investigation and
U. S. ATTORNEY'S OFFICE
prosecution of cases involving bank
District of Massachusetts
fraud and embezzlement, narcotics
Boston, Massachusetts
violations, and general federal
crimes, including interstate offenses
February, 1980 - August, 1981
and mail fraud in fraudulent business
schemes.
Associate
Principally engaged in civil
Trial Department
litigation involving business
BINGHAM, DANA & GOULD
contracts, general corporate matters,
Boston, Massachusetts
securities laws, administrative law.
Pro bono criminal appointments.
September, 1975 - February, 1980
GREATER BOSTON LEGAL SERVICES
Full time civil pro bono work in
April, 1976 - September 1976
association with Bingham, Dana &
Gould.
Summer Associate
General legal research and writing.
PIERCE, ATWOOD, SCRIBNER,
ALLEN & McKUSICK
Portland, Maine 01401
June - August, 1973
-3-
JMBOCT91.XO
JUDICIAL CLERKSHIP
MASSACHUSETTS SUPREME
Law Clerk to Chief Justice Edward F.
JUDICIAL COURT
Hennessey.
Boston, Massachusetts
September, 1974 - September, 1975
PRO BONO ACTIVITIES
AND BAR RELATED ACTIVITIES
JUDICIAL NOMINATING COUNCIL
Appointed by Governor William F. Weld
(1991 - Present)
to serve on Council that evaluates
candidates for judgeships in the
Massachusetts Courts and submits
recommendations to the Governor for
his nomination of judges.
MASSACHUSETTS BOARD OF BAR
Appointed by the Justices of the
OVERSEERS
Supreme Judicial Court to governing
(1990 - 1996)
12-member Board of Bar Overseers,
which is responsible for enforcement
of Code of Ethics for all attorneys
practicing law in Massachusetts. The
BBO sits as an Appeals Board from
Disciplinary Hearing Committees, and
also holds hearings in disciplinary
proceedings against attorneys pursuant
to BBO and Court Ethical Rules.
CHAIR, DISTRICT OF MASSACHUSETTS
Appointed by the Judges of the United
UNITED STATES MAGISTRATE MERIT
States District Court to serve as
SELECTION PANEL (1989-1990)
Chair of committee to interview and
recommend candidate to be Federal
Magistrate.
SPECIAL INVESTIGATIVE COUNSEL TO
Appointed by the Justices of the
SUPREME JUDICIAL COURT
Supreme Judicial Court to conduct
(1991 to present)
investigation of confidential matter
involving the administration of
justice by a judicial officer.
MAGISTRATE, MASSACHUSETTS
Appointed by State Superior Court to
SUPERIOR COURT (1987-1988)
serve as Special Magistrate to conduct
independent counsel review, make
findings, and file full report
concerning compliance with court
ordered pre-trial attorney access
conditions at maximum security cell
block in state prison.
-4-
JMBOCT91.XO
CHAIR, STATE TREASURER'S HYNES
Appointed by Massachusetts Treasurer
CONVENTION CENTER PRIVATIZATION
Joseph D. Malone to chair committee
ADVISORY COMMITTEE (1991)
for study and issuance of report
concerning privatization alternatives
for the Boston Hynes Convention Center
and related parking authority.
CO-CHAIR, WITH GOVERNOR'S CABINET
Appointed by Massachusetts Secretary
SECRETARY FOR PUBLIC SAFETY, OF
of Public Safety to serve with him as
STATE POLICE REORGANIZATION
co-chair of committee to draft initial
COMMITTEE (1991)
legislation and plan of implementation
for reorganization of four statewide
police organizations into one, united
State Police Department.
COUNSELOR - VICE PRESIDENT
Elected executive officer of Frank J.
FEDERAL INN OF COURT
Murray Inn of Court, an advocacy-
Boston, MA
teaching group composed of Federal and
(1990 - Present)
Massachusetts State Judges and senior
attorneys, all of whom convene monthly
to teach young attorneys advocacy,
effective representation and the
ethics of practice.
BOARD OF ADVISORS
The Board of Advisors is composed of
NATIONAL TRIAL COMPETITION
thirteen trial attorneys and judges
Northeast Region
for the northeast law school advocacy
(1990 - Present)
competition sponsored by the American
College of Trial Lawyers and the
American Bar Association Litigation
Section. The northeast region law
schools are among over 110 accredited
law schools which participate
nationwide.
A HERO'S WELCOME INC. CHARITABLE
Appointed by Massachusetts State
FOUNDATION
Treasurer Malone as General Counsel
(1991 - Present)
and Trustee of charitable foundation
established to provide assistance to
soldiers called to duty in Operations
Desert Shield and Storm in the Persian
Gulf.
CHAIR, STATE TREASURER'S
Requested by then Treasurer-elect
TRANSITION COMMITTEE, RETIREMENT
Malone to chair committee to review
BOARD (1990)
procedures of Massachusetts Retirement
Board in connection with transition by
the Treasurer's new administration.
BOARD OF TRUSTEES
Director of one of the North Shore's
ATLANTICARE HOSPITAL
major health care facilities.
(1990 - Present)
-5-
JMBOCT91.X0
TASK FORCE IN RE BOARD OF
Appointed by Massachusetts Secretary
REGISTRATION IN MEDICINE
of Consumer Affairs to serve on
(1991 - Present)
Special Task Force to review policies,
procedures and operations of the Board
of Registration in Medicine.
MASSACHUSETTS COMMITTEE
Appointed by the Justices of the
FOR PUBLIC COUNSEL SERVICES
Massachusetts Supreme Judicial Court
80 Boylston Street
to serve pro bono on governing board
Boston, MA 02116
responsible for administration of
(1987 - 1991)
statewide court program for
appointment of counsel to represent
indigent litigants.
FELLOW
Fellow of Massachusetts Bar
MASSACHUSETTS BAR FOUNDATION
Foundation, the membership of which is
(1989 - Present)
limited to attorneys who "have
demonstrated outstanding dedication to
the welfare of the community," and the
purpose of which is to award grants to
further the administration of justice.
Appointed by Boston Bar Association
BOSTON BAR ASSOCIATION TASK FORCE
President to serve on special eight
ON DRUGS AND THE COURTS
person task force organized at the
(1989 - 1990)
request of Boston Mayor to undertake
major study of drug related crimes and
court proceedings and to state
recommendations and consider reforms
to the Massachusetts Criminal Justice
System.
Supervising Attorney
Administrator and supervising attorney
MASSACHUSETTS DISTRICT COURT
for twenty attorneys in pro bono
CRIMINAL PROJECT
project at Ropes & Gray providing
(1989 - 1990)
representation to indigent defendants
in criminal cases in the Massachusetts
District Courts. This was a prototype
project developed in coordination with
the Committee for Public Counsel
Services with a view to engaging the
services of large private law firms
throughout Massachusetts.
MASSACHUSETTS BAR ASSOCIATION
Appointed by Massachusetts Bar
CRIMINAL JUSTICE COUNCIL
Association President to serve on
(1989)
overseeing Council of the MBA Criminal
Justice Section.
-6-
JMBOCT91.
TEACHING IN CONTINUING LEGAL EDUCATION PROGRAMS
MASSACHUSETTS ANNUAL ADVOCACY
Faculty in trial technique seminar to
INSTITUTE
demonstrate advanced litigation
(1990)
practice in tort case.
MASSACHUSETTS CONTINUING LEGAL
Chair, Conference (with article) :
EDUCATION
Hidden Ethical Issues in Civil
Litigation and Criminal Practice
(1991)
Conference Lecturer (with article):
Advanced Trial Tactics in Criminal
Cases (1991)
Conference Lecturer (with article):
Development of Expert Testimony at
Trial (1990)
Conference Lecturer: Fundamentals of
Opening Statements and Closing
Arguments. (1989)
Chair, Seminar (with article):
Prosecution and Defense of Criminal
Tax Cases. (1989)
Chair, Conference (with article): :
Defending Businesses in an Age of
White Collar Prosecutions. (1989)
MASSACHUSETTS BAR ASSOCIATION
Conference Lecturer (with article) :
Recent Developments in the Law: White
Collar Crime. (1988)
Conference Lecturer (with article):
Suppression & Discovery Pre-Trial
Motions in Criminal Cases. (1988)
Conference Lecturer: Representing
Criminal Defendants in Federal
Criminal Court: Comparison with State
Criminal Proceedings.
BOSTON BAR ASSOCIATION
Lecturer (with outline): Federal
Banking Crimes under FIRREA and the
1990 Crime Act (1991)
-7-
JMBOCT91.XO
HARVARD LAW SCHOOL
Instructor in course entitled "The
Cambridge, Massachusetts
Government Lawyer".
(1983 - 1986)
Trial instructor at two-week intensive
advocacy courses.
ADVANCED TRIAL ADVOCACY INSTITUTE
Served on faculty by invitation of and
Boston, Massachusetts
with judges conducting Advocacy
(1987-1990)
Institute courses for practicing
attorneys
ADVOCACY INSTITUTE
Trial instructor for advocacy course,
U. S. DEPARTMENT OF JUSTICE
teaching trial practice and procedure
Washington, D.C.
to government lawyers.
(1986)
PUBLICATIONS
Author: Defense of Businesses, Individual Officers and Employees in
Corporate Criminal Investigations, Vol. 27A Federal Procurement Book, Chap. at 1467 (1990)
Author, BBA Law Journal: The 1990 Supreme
Judicial Court Term of Court: Developments in the
Criminal World, 35 Boston Bar L.J. 25 (1991)
Co-Author Treatise: Federal Criminal Practice:
Chapter Federal Plea Negotiation Standards and Sentencing
(1987 ed. and 1988 Supp.)
Author: General Principles of Federal
Criminal Conspiracy Law. (1987)
Massachusetts Bar Association
Editorial Board of the Massachusetts
Law Review (1982-1983)
Massachusetts Continuing Legal Education:
Appellate Practice - Bail Review (1980)
Co-author with Chief Justice Hennessey,
Constitutional Rights of the Accused,
60 Mass. L.Q. 19-53 (1975)
The Constitutionality of Prison Regulations
Limiting Press Access to Prisoners,
54 Boston Univ. L.Rev. 670 (1974)
-8-
JMBOCT91.XO
EDUCATION
BOSTON UNIVERSITY
Case and Note Editor, Executive Board,
School of Law
Boston University Law Review
J.D. cum laude 1974
BOSTON UNIVERSITY
English language and literature
College of Liberal Arts
B.A. magna cum laude 1971
Phi Beta Kappa. Degree awarded
Distinction
BAR ADMISSIONS AND ASSOCIATIONS
Member of Bar:
Commonwealth of Massachusetts
United States District Court,
District of Massachusetts
United States Court of Appeals,
First Circuit
Supreme Court of the United States
Member:
American Law Institute
Massachusetts Bar Association
Boston Bar Association
Women's Bar Association
American Bar Association
Justinian Law Society
PERSONAL BACKGROUND
Martindale Hubbell Legal
Directory Rating: "av"
("av" is defined as "very high" and is the highest level ability
rating "embrac [ing] faithful adherence to ethical standards,
professional reliability and diligence.")
Listing in Who's Who in America Law
(1990 and 1991 ed.)
Listing in Who's Who in Emerging Leaders in America
(1991 ed.)
Recipient Special Award, Italian American Association,
Everett, MA. See President Bush's letter of commendation (attached hereto).
-9-
JMBOCT91.XO
Withdrawal/Redaction Sheet
(George Bush Library)
Document No.
Subject/Title of Document
Date
Restriction
Class.
and Type
02. Resume
Re: Janis M. (Sordillo) Berry; birthdate redacted. (1 pp.)
n.d.
(b)(6)
Collection:
Record Group:
Bush Presidential Records
Office:
Chief of Staff, White House Office of
Series:
Card, Andrew H., Jr., Files
Subseries:
WHORM Cat.:
File Location:
Counsel's Office Materials [1]
Date Closed:
5/16/2025
OA/ID Number:
08373-009a
FOIA/SYS Case #:
2025-0373-S
Appeal Case #:
Re-review Case #:
Appeal Disposition:
P-2/P-5 Review Case #:
Disposition Date:
AR Case #:
MR Case #:
AR Disposition:
MR Disposition:
AR Disposition Date:
MR Disposition Date:
RESTRICTION CODES
Freedom of Information Act (FOIA) - [5 U.S.C. 552(b)]
Deed of Gift Restrictions
(b)(1) National security classified information
C(1) Closed by Executive Order 13526, governing access to national
(b)(2) Release would disclose internal personnel rules and practices of an
security information
agency
C(2) Closed by statute or by the agency which originated the information
(b)(3) Release would violate a Federal statute
C(3) Closed in accordance with restrictions contained in donor's deed of
(b)(4) Release would disclose trade secrets or confidential or financial
gift [formerly listed as only C]
information
PRM. Removed as a personal record misfile
(b)(6) Release would constitute a clearly unwarranted invasion
of personal privacy
(b)(7) Release would disclose information compiled for law enforcement
Presidential Records Act - [44 U.S.C. 2204(a)]
purposes
(b)(8) Release would disclose information concerning the regulation of
P-2 Relating to the appointment to Federal office [(a)(2) of the PRA]
financial institutions
P-5 Release would disclose confidential advice between the President and
(b)(9) Release would disclose geological or geophysical information
his advisors, or between such advisors [(a)(5) of the PRA]
concerning wells
Personal: Married:
Richard G. Berry - 1970
Daughters:
Alexis - 13
Ashley - 8
Lindsey - 8
Date of Birth:
(b)(6)
(age 42)
Residence:
49 Vine Street
Saugus, Massachusetts 01906
(617) 233-8625
October, 1991
-10-
JMBOCT91.XO
CRIMINAL AND CIVIL
TRIAL AND APPELLATE PRACTICE
JMBOCT91.XO
CRIMINAL AND CIVIL
TRIAL AND APPELLATE PRACTICE
Major Civil Litigation Cases
Charlotte D. Walsh,
Trial counsel for defense in State
Administratrix V. Volkswagen of
Superior Court jury trial in lawsuit
America, Inc., et al., Mass.
brought against automobile
Middlesex Superior Court, Civil
manufacturer for products liability
No. 83-6777 (Trial November,
and wrongful death actions based on
1990)
breach of warranty and negligent
design. The case was tried over a one
month period and involved expert
neurosurgeon medical testimony, expert
biomechanic evidence on the mechanism
of injury and expert accident
reconstruction testimony, including
computer simulation. The claimed
damages were approximately $4 million;
the jury returned a defendant's
verdict for client.
Access America, Inc. V. La Jolla
Counsel in complex insolvency
University, et al., Mass.
receivership to conserve assets
Worcester Superior Court, Civil
arising out of approximately 15
No. 91-2041 (1991)
million dollars in loans and involving
multi-corporate entities.
Bank of New England (FDIC) V.
Counsel in insolvency proceedings
Cape Cod Broadcasting, et al.,
relating to sale of three radio
Mass. Suffolk Superior Court,
stations.
Civil No. 90-5673-C (1991)
Gail F. Lubanski, Administratrix
Trial counsel for plaintiff in jury
of the Estate of James S.
case tried in Federal Court in
Lubanski, et al. V. Coleco
products liability action for wrongful
Industries, Inc., U.S.D.C., Civil
death involving design defect in
No. 87-2742-Z (Trial June, 1990),
child's toy. The expert evidence
aff'd., 929 F.2d 42 (1st Cir.
included the testimony of expert
1991)
safety engineer and accident
reconstruction witnesses.
Shepard V. Bennett, Mass. Suffolk
Trial counsel for plaintiff in jury
Superior Court, Civil No. 88-0578
case for personal injury, involving
(Trial March, 1991)
soft tissue, muscular-skeletal
injuries and medical expert evidence
in proof thereof.
Bruner Cott & Associates, Inc. V.
Trial counsel in defense of civil jury
Mark C. Sullivan, Trustee and
trial in State Superior Court
Jack W. Rizika, Mass. Middlesex
involving complex real estate
-i-
JMBOCT91.X
Superior Court, Civil No. 86-1338
transactions with commercial leases
(Trial 1988)
and option to purchase, resulting in
defendants' verdict for client; in
subsequent appeal, briefing to the
Appeals Court.
Clark & Reid Co. V. ASA, Mass.
Trial counsel for defense in case
Middlesex Superior Court, Civil
involving alleged computer defects in
No. 84-3151 (1991)
development of software applications,
with damages under the Uniform
Commercial Code.
Occient Corporation V. Reebok,
Counsel in contemporaneous arbitration
Mass. Middlesex Superior Court,
and civil lawsuit involving alleged
Civil No. 89-6061 (1989)
breach of multi-million dollar agency
production and marketing agreements.
Monarch Capital Corp., by
Counsel in litigation involving joint
Middlesex Development Company V.
venture real estate development work-
Blank, S.D.N.Y. , Civil Action
out of $25 million project, and breach
No. 4260 (CLB) (1989-1990)
of partnership agreements.
Forge Development Corp. V.
Counsel in multi-county lawsuits
Blackstone Valley Partners, La
commenced in Norfolk and Hampden
Plante, et al., Mass. Hampden
Superior Courts in connection with
Superior Court, Civil No. 88-1013
$17 million real estate development
and related actions in Norfolk
and pro-golf course, with investments
Superior Court, Civil Nos. 87-
by insurance company subsidiary
2508 and 89-1109. (1987-1991)
therein.
IYH V. Merchants Corp., Mass.
Counsel in litigation involving
Middlesex Superior Court, Civil
environmental damage claims for
No. 86-1867 (1986-1987)
release of pollutants.
In re Jane Doe (I) and (II) Mass.
Trial counsel in contested proceedings
Essex and Middlesex Probate
to adduce expert medical evidence of
Courts (1986, 1988)
psychiatric opinions relative to
treatment for mentally ill ward.
Howmet Corporation V. Stephen W.
Counsel in proceedings before a Single
Kidder, Commissioner of Revenue
Justice of the Supreme Judicial Court
and Department of Revenue, Mass.
and the Superior Court in respect to
SJC, Civil No. 89-549 (1989);
corporate taxing jurisdiction under
Superior Court Civil No. 90-5109
Federal and State law.
(1990)
-ii-
JMBOCT91.XO
New England Insulation Co. V.
Appellate counsel for brief and
General Dynamics Corporation, et
argument before Massachusetts Appeals
al., Mass. Norfolk Superior
Court concerning issue of corporate
Court, Civil No. 85-3283 (1988-
civil liability for executive's
1991); appeal reported at, 26
criminal acts; trial counsel in
Mass. App. Ct. 28 (1988)
pending litigation.
Globe Newspaper Co. V. Boston
Trial attorney in litigation before
Retirement Board, Mass. Suffolk
Superior Court to determine evidence
Superior Court (1980)
for adjudication of First Amendment
and FOIA declaratory judgment action.
See also, Grocery Manufacturers of America, Inc. V. Department of Public
Health, 379 Mass. 70 (1979); (litigation involving regulations promulgated by
the Massachusetts Department of Public Health); Cambridge Trust Co. V.
National Academy of Sciences, 370 Mass. 303 (1976) (fiduciary corporate trust
litigation relating to investment practices and trust administration); Globe
Newspaper Co. V. Superior Court, 457 U.S. 596 (1982) rev'g on rehearing,
Globe Newspaper Co. V. Superior Court (Globe I) 379 Mass. 846 (1980) (trial
and appellate First Amendment litigation; and also FOIA litigation).
Major Criminal Defense Cases
In the Matter of a Grand Jury
Appellate counsel in full appeal to
Subpoena, 30 Mass. App. Ct. 462
Massachusetts Supreme Judicial Court
(1991), further app. review
and Appeals Court in connection with
granted, 410 Mass. 1102 (1991).
corporate criminal tax investigation.
In Re Doe Corp.
Independent counsel review of
corporate actions in connection with
compliance with statutes and
governmental agency regulations.
In re Doe Hospital
Independent counsel review of
procedures.
In re John Doe
Counsel in tax investigation.
United States V. Northrop Corp.,
Representation of corporate officers
(S.D. Cal. 1989)
named as target of grand jury
investigation in government
contracting and procurement case.
United States V. Young, U.S.D.C.
Trial attorney in Federal Court jury
Crim. No. 89-245-MA (1990),
trial for the defense of an attorney
appeal pending, Nos. 90-1581, 90-
in white collar criminal case
1619 (1st Cir. 1991)
involving investment transactions and
indictment for federal embezzlement
and mail fraud offenses.
-iii-
JMBOCT91
Commonwealth V. Dance, Mass.
Trial counsel pro bono in successful
Roxbury District Court, Crim. No.
defense of poor woman erroneously
9102 CR 5667 (1991)
charged in narcotics trafficking case
in public housing project.
Commonwealth V. Norman, 406 Mass.
Appellate counsel pro bono in two full
1001 (1989), aff'g, 27 Mass. App.
appeals to the Massachusetts Supreme
Ct. 82 (1989)
Judicial Court and the Appeals Court,
achieving reversal of conviction.
United States V. Bramble (I), 871
Appellate counsel pro bono by
F.2d 188 (1st Cir.), cert.
appointment of the First Circuit Court
denied, 110 U.S. 369 (1989);
of Appeals in two appeals.
United States V. Bramble (II),
925 F.2d 532 (1st Cir. 1991),
cert. denied, 111 S.Ct. 2837
(1991)
United States V. Ingraham, 832
Appellate counsel pro bono by
F.2d 229 (1st Cir. 1987), cert.
appointment of the First Circuit Court
denied, 108 S. Ct. 1738 (1988)
of Appeals.
Commonwealth V. Martien, Mass.
Appointment pro bono by Massachusetts
Suffolk Superior Court, Crim. No.
Trial Court to represent indigent
221795 (1988)
defendant charged with double
homicide.
Commonwealth V. Jenkins, Mass.
Appointment pro bono by Massachusetts
Suffolk Superior Court, Crim. No.
Trial Court to represent indigent
072415 (1989)
defendant in murder case, including
conduct of pretrial evidentiary
hearings.
Major Criminal Prosecution Cases
This casework encompasses a series of significant criminal jury trials and
appeals litigated and grand jury investigations conducted during the six
years I served as a Federal Prosecutor in the District of Massachusetts with
responsibilities in various areas of criminal law, e.g., official corruption
and bribery; bank fraud; false statements; personal and corporate tax
evasion; RICO; narcotics offenses; CCE offenses; forfeiture actions - - civil
and criminal -- and money laundering offenses, including the following major
cases in which I was principal counsel:
United States V. Twomey, Crim.
Trial attorney for the government in
No. 85-397-C (D. Mass. 1986),
this month-long criminal case against
aff'd, 806 F.2d 1136 (1st Cir.
an Assistant United States Attorney
1986).
who had sold confidential law
-iv-
JMBOCT91.XO
enforcement information to targets of
criminal investigations; the defendant
was convicted of obstruction of
justice and defrauding the government;
appellate counsel in First Circuit
Court of Appeals. (According to the
Public Integrity Division of the
Department of Justice, there had been
at the time only two other cases in
which a Federal prosecutor had been
convicted for corruption of that
public office).
United States v. Vara,
Trial attorney in this corporate tax
Crim. No. 84-250-G
fraud jury case involving
(D.Mass., 1985).
Massachusetts and Georgia corporations
and two corporate officers charged
individually as principals in a
complex tax evasion scheme.
United States V. Lepere
Conducted prosecution involving two
and Dailey, Crim. No. 83-308-T
indictments charging 33 defendants.
(D. Mass. 1983), aff'd sub nom.,
The cases encompassed three
United States V. Dailey,
interlocking continuing criminal
759 F.2d 192 (lst Cir. 1985);
enterprises that had grossed 25
rev'g, 599 F.Supp. 1322 (D. Mass.
million dollars by importing 500,000
1984); 580 F.Supp. 561 (D.Mass.
pounds of marijuana in eleven separate
1984)
ventures. The case work included the
preparation of rebuttal evidence based
on expert psychiatric testimony to
overcome one defendant's defense of
insanity by reason of Post-Traumatic
Stress Disorder, also known as Vietnam
Syndrome.
Briefed and argued interlocutory
appeal to the First Circuit with
respect to the constitutionality of
cooperation agreements with government
witnesses.
United States V. Zullo, et al.,
Trial attorney for the government in
Crim. No. 83-309-Z
this jury trial involving eight
(D. Mass. 1984), aff'd,
defendants, involving proof by
790 F.2d 186 (1st Cir. 1986).
historical evidence of a conspiracy
that had been perpetrated five years
earlier.
JMBOCT91.XO
-v-
United States V. Drougas,
Trial attorney for the government in
Crim. No. 82-62-K .Mass.
this seven defendant conspiracy case
1983), aff'd., 748 F.2d 8 (1st
before Judge Keeton -- at the time the
Cir. 1984).
longest (6 months) criminal case to
have been tried in the District of
Massachusetts.
Briefed and argued the appeal to the
First Circuit based on a trial record
of 12,000 pages.
In re Globe Newspaper Co.,
Briefed and argued government's
729 F.2d 47 (1st Cir. 1984).
position opposing closure of bail
proceedings relating to United States
V. Angiulo.
See also United States V. Chagra, 653 F.2d 26 (1st Cir. 1981) ; United States
V. Guerro, 693 F.2d 10 (1st Cir. 1982) ; United States V. St. Germain, 680
F.2d 874 (1st Cir. 1982); United States V. Pimental, 645 F.2d 85 (1st Cir.
1981); United States V. Mastrangelo, Crim No. 85-95-MA (D. Mass. 1985).
-vi-
JMBOCT91.XO
P.2/5
THE WHITE HOUSE
WASHINGTON
DATE: 12/21/91
TO: nee Liberman
FROM:
ANDY CARD Andy
Please check out
Peter Velis for a
leld, MA
District tudgeship
B
indra Velis
in Massachusett.
16
:3
(Peter is a furmer
1957-1960
State Representative and
1960-1961
'79/80 Bush supporter
1961-1965
from Westfild, MA.)
ations
B 1965
Of Law
1965-1968
1 DOCTOR
Honors, Co-Authored "The Grand
Jury System Of Massachusetts, A
Study" for the Suffolk Univer-
sity Law Review in conjunction
with the Massachusetts General
Court, Graduated, Dean's List 1968
1-6
THE WHITE HOUSE
WASHINGTON
May 16, 1991
AC HAS SEEN 9/20
MEMORANDUM FOR GOVERNOR SUNUNU
FROM:
JOHN P. SCHMITZ 115
SUBJECT:
Summary of Meeting with Congressman McCollum
I had a good 45-minute meeting with Congressman McCollum
yesterday regarding legal services. I took along Mark Paoletta
of my staff, and Jack Howard from Legislative Affairs. Jim
Wootton (who has been hired by the Donnelly firm to lobby on
legal services reform on behalf of the business community), and a
McCollum staff member also attended. McCollum did most of the
talking. He briefed us on the status of Legal Services
reauthorization in the House, which is now out of Barney Frank's
subcommittee and pending before the full Judiciary Committee. He
summarized the provisions of his substitute reauthorization bill
(McCollum-Stenholm) and organized his major issues into the three
categories described below. He also touched on some non-
substantive issues, such as his view of the performance of our
appointees to the Legal Services Board.
Reauthorization Issues
-- "Litmus test" issues McCollum expects to win in the House:
-- complete ban on abortion activities
-- complete ban on redistricting activities
-- virtual ban on lobbying and rulemaking activities (we
are not as optimistic as McCollum that he has the votes
in the House for this provision).
-- Priority "Fighting" Issues:
-- competition McCollum believes that competition is the
single most important structural reform, that it must
be implemented for any meaningful reform to occur, and
that it has the full support of the business community.
McCollum spoke to Rudman last year about competition
and believes that he has an agreement in principle with
him on this issue. Tom Polgar, Rudman's key staffer,
confirmed that this week, but emphasized that such an
agreement is only in the abstract, not on any specific
proposal or language that McCollum has floated.
(Reading between the lines, there will be lots of
fireworks on this one because the ABA is locked in
stone opposing competition and McCollum believes he is
in a very strong position politically).
-- coverage of non-LSC funds - McCollum conceded to us
that coverage of non-LSC funds is an issue where he and
Rudman have staked out unyielding opposing positions.
Although the Justice Department has not yet taken a
final position, we believe that it will be
constitutionally difficult to support the McCollum
proposal. Neither McCollum nor Rudman know this yet,
and we should consider how and when we might announce
our view to aid in forging a compromise here.
-- Other issues:
-- restrictions on class actions, attorneys fees,
solicitation, procedural reforms in litigation,
timekeeping, application of waste, fraud and abuse
provisions, and authority of local boards.
Board-related and Other Non-Substantive Issues
-- Congressman McCollum warned us that former Congressman
Molinari will be contacting the President and wants to
complain about Board members Dana, Uddo, and Wittgraf. No
surprise that Molinari is criticizing Dana and Wittgraf.
Similarly, we did not expect Uddo to be popular among
conservatives, but that he would be credible to Rudman and
would be someone with whom we could work. I state this
because I still believe Uddo will be very useful to us, not
to deflect Molinari's expected criticism.
-- McCollum is very pleased with the appointment of Bud Kirk,
his former law partner. I concur with this view and
believe he may be our most effective advocate of reform,
given the time constraints of Molinari and Luis Guinot.
Kirk is very smart, willing to stand his ground, and has
offered to help us.
-- McCollum also told us about his meeting yesterday with a
broad coalition of business leaders who will publicly
support the reform effort, including NAM and NFIB (attached
is a list of members of the coalition). This is very
encouraging because last year's reform lobby was easily
criticized as "inside-the-beltway" and grower-oriented.
Especially encouraging is that NFIB plans to make legal
services reform one of their voting issues this year.
Relatedly, McCollum has approached Senators Byrd and Bentsen
to introduce a reform package in the Senate.
-- McCollum expressed displeasure over the developments of the
two recent LSC field hearings, which were intended to build
a record for the Board to make recommendations on
reauthorization. The record is currently very one-sided,
with virtually all of the witnesses opposing the McCollum-
Stenholm bill. McCollum believes that a balanced record
needs to be developed and I will have an opportunity
tomorrow at lunch to communicate that to George Wittgraf.
-- Finally, per our conversation, I had called both McCollum
and Rudman last week to encourage them to contact each other
to initiate discussions. McCollum reported that he did call
Rudman this week but has not yet been called back.
Ultimately much of our success depends on their willingness
to talk to each other.
CC: Andy Card
Attendees for Legal Services Reform Meeting
with Congressmen McCollum and Stenholm
May 15, 1991
John Motley
Vice President
Federal Government Relations
National Federation of Independent Business
Alan Kranowitz
Senior Vice President
Government Relations
National Association of Wholesaler Distributors
Edward L. Yingling
Director
Government Relations
American Bankers Association
Mike Baroody
Executive Vice President
National Association of Manufacturers
Phil Mink
General Counsel
Citizens for a Sound Economy
James Davidson
Chairman of the Board
National Taxpayers Union
Richard Lesher
President
U.S. Chamber of Commerce
Cem Martin
President
West Virginia Bar Association
Tom Donnelly
Pagonis and Donnelly
Jim Wootton
Pagonis and Donnelly
THE WHITE HOUSE
AC HAS SEEN
WASHINGTON
December 18, 1980
MEMORANDUM FOR ANDY CARD
FROM:
C. BOYDEN GRAY YCMN
SUBJECT:
Role of the Staff Secretary in National Security
Legal Matters
Both NSDD 268 and common sense dictate that the Counsel to the
President review and concur in documents of potential legal
significance prepared by the NSC staff for action or review by
the President. I believe that there are three categories of such
documents. The first is internal decision memoranda in which the
President directs some action by the government (e.g., National
Security Directives, National Security Reviews, intelligence
findings, and other presidential decision memoranda and
directives). The second is documents that have been prepared for
public release (e.g., presidential speeches, statements, reports,
determinations, certifications, waivers, and delegations). The
third is information memoranda that contain advice to the
President on legal matters (e.g., memoranda on war powers
questions, or questions of statutory or treaty interpretation).
I understand that some documents (especially certain NSDs and
intelligence findings) are of such sensitivity that they must be
handled outside of normal channels. As demonstrated by the Iran-
Contra affair, however, the sensitivity of such documents means
that they require heightened scrutiny at a senior level, not less
scrutiny. I therefore recommend that, with respect to documents
too sensitive for routine staffing, a procedure be established
for collective review by the Chief of Staff, his deputies, and
the Counsel to the President. All other NSC-originated documents
can be staffed routinely to my office.
THE WHITE HOUSE
WASHINGTON
Date: September 14, 1990
FOR:
Ede Holiday
FROM:
ANDY CARD
Action
Your Comment
Let's Talk
FYI
Sand
6x.
litelk.
toly
THE WHITE HOUSE
the
WASHINGTON
September 11, 1990
MEMORANDUM FOR ANDY CARD
FROM:
C. BOYDEN GRAYOMN
SUBJECT:
Revising NSDs
At your request, I have looked into the process for revising
NSDs. The process is quite simple and, with NSC cooperation, can
be accomplished quickly.
Almost all Presidents have used NSDs under one name or another.
NSDs memorialize presidential decisions on national security
issues and convey the President's instructions on implementation
of such decisions to Executive branch officials. NSDs are not
issued pursuant to any statute or Executive Order. Rather, they
are based on the President's inherent constitutional authority as
Chief Executive. The practice of the Bush Administration has
been for the President to sign NSDs, but in some previous
administrations documents analogous to NSDs were signed on behalf
of the President by the National Security Advisor.
Proposed NSDs are submitted to the President by the National
Security Advisor. Typically they emerge either from within the
NSC staff or from one or more of the national security agencies.
Pursuant to NSDD 266 (which was continued in force by NSDs 1 and
2), proposed NSDs must be coordinated by the NSC Legal Adviser
with the Counsel to the President. General Scowcroft has also
directed the NSC staff not to send forward to him proposed NSDs
without first obtaining the concurrence of the State Department.
There are no other procedural requirements applicable to proposed
NSDs.
As presidential directives, NSDs may be revised by subsequent
presidential directive. The most appropriate mechanism for
revising an NSD is by another NSD, signed by the President. The
President could also revise NSDs by other presidential
directives, such as Executive Orders or memoranda addressed to
agency heads, but such practice is deprecated as tending to
undermine the formality of these documents as well as the
coherence and completeness of the NSD series. There has been at
least one instance in this Administration in which the President
gave his verbal approval to the revision of an NSD and the
revision was memorialized by an addendum to the original NSD
signed by the National Security Advisor. It follows, therefore,
that the President could revise an NSD by a verbal directive
memorialized in any form, but once again, doing this outside of
the NSD series is inadvisable.
THE WHITE HOUSE
WASHINGTON
July 12, 1990
MEMORANDUM FOR LINDA GAMBATESA
SPECIAL ASSISTANT TO THE CHIEF OF STAFF
FROM:
AMY L. SCHWARTZ ALS
ASSOCIATE COUNSEL TO THE PRESIDENT
SUBJECT:
Attached Response to the MacDougall Letter
Thank you for sending over the MacDougall letter. As you
recognized, it is not appropriate for Andy to become involved in
the matter.
My recommendation would be that we answer the letter with the
attached response. Please let me know if you have any questions.
(Also please let me know if for some reason the letter should be
prepared for Boyden's signature rather than mine.)
I will wait to hear from you.
Attachment
Bcc: A. Card
THE WHITE HOUSE
WASHINGTON
July 12, 1990
Dear Mr. MacDougall:
I am writing in response to your letter to Andrew H. Card on
behalf of your client, TDS Healthcare Systems Corporation,
expressing that company's concern about the Defense Department's
handling of a procurement determination. Your letter requests
that the White House inquire into the matter to ensure its proper
handling.
Your letter was referred to me in order to comply with long-
standing White House policy against involvement with procurements
and similar matters at executive agencies and departments. This
policy not only precludes White House involvement in agency
decision-making on a matter of this type, but also precludes even
an inquiry into the status of the matter. I can only suggest
that you continue to work through Defense Department channels.
I hope that you can understand why we are unable to be of further
assistance.
Sincerely,
Anyl Shwarty
Amy L. Schwartz
Associate Counsel to the President
Mr. Gordon P. MacDougall
Vice President for Government Affairs
Capital Associates Inc.
426 C St. N.E.
Washington D.C. 20002
DRAFT
July 12, 1990
Dear Mr. MacDougal:
I am writing in response to your letter to Andrew H. Card on
behalf of your client, TDS Healthcare Systems Corporation,
expressing that company's concern about the Defense Department's
handling of a procurement determination. Your letter requests
that the White House inquire into the matter to ensure its proper
handling.
Your letter was referred to me in order to comply with long-
standing White House policy against involvement with procurements
and similar matters at executive agencies and departments. This
policy not only precludes White House involvement in agency
decision-making on a matter of this type, but also precludes even
an inquiry into the status of the matter. I can only suggest
that you continue to work through Defense Department channels.
I hope that you can understand why we are unable to be of further
assistance.
Sincerely,
Amy L. Schwartz
Associate Counsel to the President
Mr. Gordon P. MacDougall
Vice President for Government Affairs
Capital Associates Inc.
426 C St. N.E.
Washington D.C. 20002
6/7/90
Per Diana Kendrick -- it's in clearance; not likely
to be finished before 1st part of July.
Barring any particular problems, it's possible
it could be expedited in time for the June 15
Commission meeting.
If you want this done, please let her know ASAP.
makes ALat sense if inty Willaccelerate
Document Originally
Attached to
Following Page
THE WHITE HOUSE
WASHINGTON
June 4, 1990
MEMORANDUM FOR ANDREW H. CARD, JR.
FROM:
JEFFREY R. HOLMSTEAD
JCH
ASSISTANT COUNSEL TO THE PRESIDENT
SUBJECT:
Bicentennial Commission's
Four Presidents' Program
As you know from our lunch with Chief Justice Burger, the
Bicentennial Commission is planning to sponsor a series of
television shows featuring discussions with the four living past
Presidents. The purpose of the program is not to examine their
policies and programs, but to interview each of them separately
about their views on the Presidency as an institution.
As currently planned, this series would not include President
Bush. Apparently, there are some at the Commission who believe
that his participation would overly politicize the program. It
is my understanding, however, that others at the Commission would
like the President to participate, and believe that, if
approached by the White House, Chief Justice Burger would expand
the Program to include President Bush.
The program itself would certainly benefit from the President's
views on the Presidency -- especially his firmly held beliefs
about separation of powers. I also think that the President
might benefit from a sort of "Mount Rushmore effect" by appearing
along with the four past Presidents (each of whom seems to be
more revered now than when he was in office).
In a related matter, the Chief Justice is currently quite
concerned about filling the vacancy on the Commission left by the
departure of Bill Lucas. He has suggested that the President
appoint Damon Keith, a black Circuit Court Judge from Detroit,
and is very eager to have him appointed in time for the
Commission's next quarterly meeting on June 15-16. Presidential
Personnel does not expect any problem with his appointment, but I
understand from Diana Kendrick that, although we do not need to
do a full background check on Judge Keith, the appointment
process is not likely to be finished until the first part of
July.
I have talked with Chief Justice Burger several times, and have
explained that the appointment process is very time consuming,
but he wanted me to see what I could do to expedite things. If I
call him back and tell him that we simply cannot complete the
necessary background check in time for his next meeting, he is
likely to call you (or perhaps Chase) personally.
Rather than call him myself (and then have him call you), I
thought that you might want to talk to him about both the Damon
Keith appointment and President Bush's participation in the
Commission's television program.
Please let me know if you want me to do anything further.
(I have also attached a copy of the Constitution that Chief
Justice Burger signed and asked me to pass along to you.)
THE WHITE HOUSE
WASHINGTON
DATE:
6-25-90
FROM THE PRESIDENT
CB
To:
Boyden
I surrender! !
Please draft a letter to
the person that offered us
this Chris Craft and say
after a lot of soul searching
the U.S.G. cannot accept it.
Be sure the Navy is advised.
The Chris craft donor was
here last week at the 'outdoors"
meeting.
Thank them profusely on my behalf.
gb .
CC: ANDY Card
THE PRESIDENT HAS SEEN
6-25-90
THE WHITE HOUSE
WASHINGTON
June 21, 1990
MEMORANDUM FOR ANDREW H. CARD, JR
ASSISTANT TO THE PRESIDENT AND DEPUTY TO THE CHIEF
OF STAFF
FROM:
C. BOYDEN GRAY CMU
COUNSEL TO THE PRESIDENT
SUBJECT:
Chris Craft American Classic Boat
This responds to your request for a status report on the offer
from the Outboard Marine Corporation (via Jocelyn White of Apco
Associates) to donate a Chris Craft American Classic Boat for the
President's use.
As indicated in my last memo, the Navy has gift acceptance
authority that may permit it to accept the boat for official use.
Its decision on acceptance would be subject to Navy procedures
and conflict-of-interest standards. Key Navy standards include:
O
a policy against accepting a gift that might embarrass the
Department by reason of favors expected, appearance
considerations, or unwarranted publicity for the donor;
O
a policy of declining offers from a commercial enterprise if
acceptance would appear to endorse the donor, its product,
or its services; and
O
careful evaluation of a gift requiring substantial
expenditures or administrative efforts to determine whether
acceptance is desirable.
At your request, my staff has explored informally the Navy's
willingness to consider accepting the gift of the boat. The
bottom line is that Navy probably can accept the boat.
Application of Navy gift acceptance standards is complicated by:
(1) the publicity likely to be generated by a gift of a pleasure
boat (particularly such an attractive one) ; (2) the company's
request for a photograph of the President with the boat, which
may imply a desire to seek commercial benefit from the gift; and
(3) the reference in the White letter to the company President's
gratitude for recognition he received at a White House awards
ceremony.
If we want to pursue this further, I recommend that the company
approach the Navy independently of the White House, so that the
gift can be considered on its own terms. On the whole, though, I
recommend against pursuing this opportunity. I suspect that the
utility of the boat to the government will be outweighed by the
flack we are likely to get for having accepted such a gift.
THE WHITE HOUSE
WASHINGTON
June 21, 1990
MEMORANDUM FOR ANDREW H. CARD, JR
ASSISTANT TO THE PRESIDENT AND DEPUTY TO THE CHIEF
OF STAFF
FROM:
C. BOYDEN GRAY CPN
COUNSEL TO THE PRESIDENT
SUBJECT:
Chris Craft American Classic Boat
This responds to your request for a status report on the offer
from the Outboard Marine Corporation (via Jocelyn White of Apco
Associates) to donate a Chris Craft American Classic Boat for the
President's use.
As indicated in my last memo, the Navy has gift acceptance
authority that may permit it to accept the boat for official use.
Its decision on acceptance would be subject to Navy procedures
and conflict-of-interest standards. Key Navy standards include:
a policy against accepting a gift that might embarrass the
Department by reason of favors expected, appearance
considerations, or unwarranted publicity for the donor;
a policy of declining offers from a commercial enterprise if
acceptance would appear to endorse the donor, its product,
or its services; and
careful evaluation of a gift requiring substantial
expenditures or administrative efforts to determine whether
acceptance is desirable.
At your request, my staff has explored informally the Navy's
willingness to consider accepting the gift of the boat. The
bottom line is that Navy probably can accept the boat.
Application of Navy gift acceptance standards is complicated by:
(1) the publicity likely to be generated by a gift of a pleasure
boat (particularly such an attractive one) ; (2) the company's
request for a photograph of the President with the boat, which
may imply a desire to seek commercial benefit from the gift; and
(3) the reference in the White letter to the company President's
gratitude for recognition he received at a White House awards
ceremony.
If we want to pursue this further, I recommend that the company
approach the Navy independently of the White House, so that the
gift can be considered on its own terms. On the whole, though, I
recommend against pursuing this opportunity. I suspect that the
utility of the boat to the government will be outweighed by the
flack we are likely to get for having accepted such a gift.
THE WHITE HOUSE
WASHINGTON
October 26, 1989
MEMORANDUM FOR C. BOYDEN GRAY
FROM:
AMY L. SCHWARTZ ALS
SUBJECT:
Offer to the President of a Chris Craft Boat
Attached for your signature is a memo to Andy Card responding to
his inquiry about the propriety of accepting the offer of a Chris
Craft American Classic Boat for the President's use.
Please let me know if you have any questions.
Attachment
CBG/ALS:1br
CBGray
ALSchwartz
THE WHITE HOUSE
Chron
WASHINGTON
October 27, 1989
MEMORANDUM FOR ANDREW H. CARD, JR
ASSISTANT TO THE PRESIDENT AND DEPUTY TO THE CHIEF
OF STAFF
FROM:
C. BOYDEN GRAY
COUNSEL TO THE PRESIDENT
signed y DE
SUBJECT:
Chris Craft American Classic Boat
This responds to your inquiry about the propriety of accepting
the offer from Jocelyn White of Apco Associates, on behalf of
Outboard Marine Corporation, to donate a Chris Craft American
Classic Boat for the President's use.
The Navy (unlike the White House Office) has gift acceptance
authority that may permit it to accept the boat for official use.
Its decision on acceptance would be subject to Navy procedures
and conflict-of-interest standards.
Key Navy standards include:
a policy against accepting a gift that might embarrass
the Department by reason of favors expected, appearance
considerations, or unwarranted publicity for the donor;
a policy of declining offers from a commercial
enterprise if acceptance would appear to endorse the
donor, its product, or its services; and
careful evaluation of a gift requiring substantial
expenditures or administrative efforts to determine
whether acceptance is desirable.
Two points in White's letter could complicate consideration of
the offer. First, by requesting a picture of the President with
the boat, White implies that the company would seek commercial
benefit from the gift. Second, an appearance issue could be
raised by White's mention that the Outboard Marine Corporation's
CEO was recently recognized at a White House awards ceremony. It
would be a problem if the gift was seen as a response to the
White House recognition.
If you wish to pursue the prospect, my staff could sound out Navy
officials informally on whether the Navy would likely be able to
accept the boat if we wished it to do so. Then, if the answer
seems favorable, we could refer the offer to the Navy officially.
Shall I have my staff make informal inquiries?
Yes
No
For your convenience, I am returning the materials you sent me.
Attachments
ID #. 076780
CU
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
o . OUTGOING
H INTERNAL
I . INCOMING
Date Correspondence
Received (YY/MM/DD)
/
/
Name of Correspondent: andy Card
MI Mail Report
User Codes: (A)
(B)
(C)
Subject: Chris Craft american Classic Boat
ROUTE TO:
ACTION
DISPOSITION
&
Tracking
Type
Completion
Action
Date
of
Date
Office/Agency
(Staff Name)
Code
YY/MM/DD
Response
Code
YY/MM/DD
Cuofe
ORIGINATOR 8/109,26
/ /
Referral Note:
Cuat 12
CBG signature
81,09,27
S 89,10,07
Referral Note:
/ /
/
/
-
Referral Note:
/
/
/
/
-
Referral Note:
/ /
/
/
-
Referral Note:
ACTION CODES:
DISPOSITION CODES:
A . Appropriate Action
I . Info Copy Only/No Action Necessary
A Answered
c Completed
C . Comment/Recommendation
R. . Direct Reply w/Copy
B - - Non-Special Referral
S Suspended
D Draft Response
S For Signature
F Furnish Fact Sheet
X Interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
Type of Response = Initials of Signer
Code = "A"
Completion Date = Date of Outgoing
Comments:
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
Always return completed correspondence record to Central Files.
Refer questions about the correspondence tracking system to Central Reference, ext. 2590.
5/81
16/0000
THE WHITE HOUSE
WASHINGTON
September 25, 1989
MEMORANDUM FOR C. BOYDEN GRAY
FROM:
ANDREW H. CARD,
JR
order
SUBJECT:
Chris Craft American Classic Boat
Attached is a letter offering to donate a Chris Craft American
Classic Boat to the Executive Office of the President. The
President has seen the letter and brochure and is interested in
pursuing this.
Your guidance will be appreciated.
Attachments
THE WHITE HOUSE
WASHINGTON
September 21, 1989
Dear Jocelyn:
Wow! My favorite boat of all time is a
mahogany Chris Craft. Growing up I remember
someone on the lake where my Grandmother's
cottage was having a Chris Craft. It was the
envy of everyone at the lake.
I promise to show the President the brochure
and to tell him about the uniqueness of the 24
boats being constructed. I can anticipate how
he will react, but I don't know what action he
will take. When I have some direction, I will
follow up with you or you can touch base with
Linda.
With best wishes,
Sincerely,
Andrew And H. Card, Jr.
Assistant to the President
and Deputy to the Chief of Staff
Jocelyn White
Vice President
Government Relations
APCO Associates
1155 - 21st Street, N.W.
Washington, D.C. 20036
APCO
ASSOCIATES
THE ARNOLD & PORTER CONSULTING GROUP
AHC
JOCELYN WHITE
Vice President
Government Relations
September 15, 1989
The Honorable Andrew H. Card
The White House
Washington, D. C. 20500
Dear Andy:
I am writing on behalf of Outboard Marine Corporation regarding the
donation of a limited edition Chris Craft American Classic boat to the Office
of the President of the United States.
Chris Craft, which is owned by Outboard Marine Corporation, is
producing 24 boats constructed to the specifications of the 1930, 24-foot,
Model 103 mahogany runabout. (I have enclosed a brochure on the boat for
your information.) These boats will be built under the personal supervision
of Christopher J. Smith, grandson of the founder of Chris Craft. Outboard
Marine Corporation would like to offer one of these 24 boats to the Office of
the President of the United States to be used as an "official presidential
launch." We understand that the donation of this gift would need to comply
with all appropriate laws overseeing gifts to the Office of the President.
As a recognized lover of boats and, in particular, quality boats,
Outboard Marine Corporation believes that President Bush would truly
appreciate this American Classic. The boat will be American built and of
first rate quality. If the President is able to accept the use of this boat,
Outboard Marine Corporation would appreciate a photo of the President
with the boat.
Charles Strang, Chief Executive Officer of Outboard Marine
Corporation, was recently recognized at a White House-sponsored awards
luncheon honoring people with a technical background. Mr. Strang is very
enthusiastic about the donation of this boat to the Office of the President.
Please let me know if there is any interest in this donation or if you
need further information. I will call Linda Gambatesa to follow-up on this
letter.
Sincerely,
Dalyn
Jocelyn White
Enclosure
Three Lafayette Centre
1155 21st Street, N.W.
Suite 1000
Washington, D.C. 20036
(202) 778-1020
Telecopier (202) 331-9832
Telex 892733 ARFOPO
-
N MA 0 N MAHOGANY RUNABOUT 0 N COMPANY PRESENTS:
H E THE 1 0 1930 THE 1930 M O E MODEL103 103 REPRODUCTION N
fic
THE WHITE HOUSE
WASHINGTON
25 June 1990
MEMORANDUM FOR THE PRESIDENT
From: Chase Untermeyer
Subj: Fifth Circuit Judicial Candidates
Boyden sent me a copy of his memo to you of 22 June
reagrding Ricardo Hinojosa, Lynn Hughes, and the Fifth Circuit.
There may be as many as four vacancies on that court soon,
and there are two other longtime Bushbackers who have expressed
strong interest in serving there: HAL DeMOSS, who will be here on
Monday, 2 July for interviews at Justice; and BILL CASSIN. Both
men are in their late 50's.
CC: Boyden Gray
Andy Card
THE WHITE HOUSE
WASHINGTON
DATE:
June 19, 1990
FROM THE PRESIDENT as
To:
C. Boyden Gray
Chase Untermeyer
I have known Lynn Hughes for ages:
Please give me an update on where this
Court of Appeals vacancy stands.
Are we considering Lynn?
Are we considering Ricardo Hinjosa?
watter before
my lunch with
Boyder today 6-19
5
CC: John Sununu
Withdrawal/Redaction Sheet
(George Bush Library)
Document No.
Subject/Title of Document
Date
Restriction
Class.
and Type
03. Memo
C. Boyden Gray to President Bush, Re: Fifth Circuit
06/22/90
(b)(6)
Vacancy. (1 pp.)
Collection:
Record Group:
Bush Presidential Records
Office:
Chief of Staff, White House Office of
Series:
Card, Andrew H., Jr., Files
Subseries:
WHORM Cat.:
File Location:
Counsel's Office Materials [1]
Date Closed:
5/16/2025
OA/ID Number:
08373-009a
FOIA/SYS Case #:
2025-0373-S
Appeal Case #:
Re-review Case #:
Appeal Disposition:
P-2/P-5 Review Case #:
Disposition Date:
AR Case #:
MR Case #:
AR Disposition:
MR Disposition:
AR Disposition Date:
MR Disposition Date:
RESTRICTION CODES
Freedom of Information Act (FOIA) - [5 U.S.C. 552(b)]
Deed of Gift Restrictions
(b)(1) National security classified information
C(1) Closed by Executive Order 13526, governing access to national
(b)(2) Release would disclose internal personnel rules and practices of an
security information
agency
C(2) Closed by statute or by the agency which originated the information
(b)(3) Release would violate a Federal statute
C(3) Closed in accordance with restrictions contained in donor's deed of
(b)(4) Release would disclose trade secrets or confidential or financial
gift [formerly listed as only C]
information
PRM. Removed as a personal record misfile
(b)(6) Release would constitute a clearly unwarranted invasion
of personal privacy
(b)(7) Release would disclose information compiled for law enforcement
Presidential Records Act [44 U.S.C. 2204(a)]
purposes
(b)(8) Release would disclose information concerning the regulation of
P-2 Relating to the appointment to Federal office [(a)(2) of the PRA]
financial institutions
P-5 Release would disclose confidential advice between the President and
(b)(9) Release would disclose geological or geophysical information
his advisors, or between such advisors [(a)(5) of the PRA]
concerning wells
2958
THE WHITE HOUSE
WASHINGTON
May 1, 1990
Luida
This G- is good! good
MEMORANDUM FOR ANDY CARD
And
FROM:
ROBERT GATES
8.
SUBJECT:
Draft Letter to President From Members of
Congress re: BTR/Norton
The draft Congressional letter to the President, which you
forwarded to me, asks the President to initiate a CFIUS
(Committee on Foreign Investment in the United States)
investigation of the hostile takeover now underway in
Massachusetts where a British conglomerate, BTR, is attempting to
gain control of Norton Corporation. According to the draft
letter, Norton is a leading developer of technologies that could
be applied to spacecraft, submarines, aircraft, and computers.
According to Treasury Department officials, agencies that are
members of CFIUS (State, Treasury, Defense, Justice, Commerce,
OMB, USTR, and CEA) decided April 25 to initiate a CFIUS
investigation pursuant to the Exon-Florio provision of the
Omnibus Trade and Competitiveness Act of 1988. Commerce and DOD
favored an investigation and Treasury went along, to become the
third agency needed to approve an investigation.
In the meantime, a French company, Compagnie de Saint-Gobain, has
come in as a "white knight" with a much higher stock price offer.
The vote by shareholders took place yesterday, but the votes will
not be counted for some indeterminate time and the CFIUS deadline
for deciding on an investigation was Wednesday. If the
Saint-Gobain offer is accepted, the acquisition becomes an
entirely new transaction for CFIUS purposes and the process
starts all over again.
THE WHITE HOUSE
WASHINGTON
DATE: 5-14-90
TO: Boyden Gray
FROM:
ANDY CARD Andy
Many moous ago your
shop was doing some work
on the 25th Amendment.
Where do we stand?
THE WHITE HOUSE
WASHINGTON
October 27, 1989
MEMORANDUM FOR ANDREW H. CARD, JR
ASSISTANT TO THE PRESIDENT AND DEPUTY TO THE CHIEF
OF STAFF
FROM:
C. BOYDEN GRAYAM
COUNSEL TO THE PRESIDENT
SUBJECT:
Chris Craft American Classic Boat
This responds to your inquiry about the propriety of accepting
the offer from Jocelyn White of Apco Associates, on behalf of
Outboard Marine Corporation, to donate a Chris Craft American
Classic Boat for the President's use.
The Navy (unlike the White House Office) has gift acceptance
authority that may permit it to accept the boat for official use.
Its decision on acceptance would be subject to Navy procedures
and conflict-of-interest standards.
Key Navy standards include:
a policy against accepting a gift that might embarrass
the Department by reason of favors expected, appearance
considerations, or unwarranted publicity for the donor;
a policy of declining offers from a commercial
enterprise if acceptance would appear to endorse the
donor, its product, or its services; and
careful evaluation of a gift requiring substantial
expenditures or administrative efforts to determine
whether acceptance is desirable.
Two points in White's letter could complicate consideration of
the offer. First, by requesting a picture of the President with
the boat, White implies that the company would seek commercial
benefit from the gift. Second, an appearance issue could be
raised by White's mention that the Outboard Marine Corporation's
CEO was recently recognized at a White House awards ceremony. It
would be a problem if the gift was seen as a response to the
White House recognition.
If you wish to pursue the prospect, my staff could sound out Navy
officials informally on whether the Navy would likely be able to
accept the boat if we wished it to do so. Then, if the answer
seems favorable, we could refer the offer to the Navy officially.
Shall I have my staff make informal inquiries?
X
Yes AHC 11/6/89
No
1027 Naturals N
10.27
For your convenience, I am returning the materials you sent me.
attached att school
2 Boyden's office
Lr
Attachments
must have
the materials.
THE WHITE HOUSE
WASHINGTON
AC HAS SEEN 5/1
May 1, 1990
MEMORANDUM FOR ANDREW H. CARD, JR.
JAMES R. WRAY
JAMES P. PINKERTON
EDWARD M. ROGERS
DAVID M. CARNEY
FROM:
FREDERICK D. NELSON FDN.
THROUGH:
C. BOYDEN GRAY 9mg
FREDERICK D. MCCLURE
7m
SUBJECT:
Campaign Finance Reform
Attached for your information is a copy of the background
memorandum prepared for Marlin Fitzwater describing certain
aspects of the new Dole/McConnell campaign finance proposal
announced today.
This memo is not for public distribution; talking points are
attached at page 3.
May 1, 1990
Campaign Finance Update (In-house)
Talking Points Attached at Page 3
Several Republican Senators, led by Dole and McConnell, will hold a
press conference at noon today to unveil a new campaign finance
package. Because they realize that this new plan differs from the
President's proposal in certain respects (and might raise certain
constitutional problems from the Administration's perspective), the
roughly 32 Republican Senate co-sponsors do not anticipate our explicit
endorsement. Rather, they hope that the Administration will commend
the goals that underlie their approach and, at least by implication,
further take issue with competing proposals advancing spending limits
and public financing schemes. No one necessarily expects that the bill
announced today will be enacted into law, but Senator Dole et al. are
seeking to gain the moral high ground from which to gain negotiating
power. By continuing to stress the principles that guide the
President's own campaign finance reform proposals made last year, the
Administration can help its congressional allies and work toward some
reasonable enactment offering true reform.
A. Dole Proposal
The new Dole/McConnell proposal would, among other provisions:
eliminate all Political Action Committees (PACs), including the
"non-connected" PACs that would continue to exist under the
President's plan not subsidized by corporate or union monies;
reduce the limit on individual contributions by
out-of-state donors from $1,000 to $500;
establish far reaching bans on "soft money," including a
prohibition on any political activity by a tax-exempt, 501 (c)
corporation;
allow a "seed money" mechanism by which party committees could
match early in-state contributions to challengers;
raise the limits on what individual contributors may give to
opponents of candidates who spend large sums of their own money
in the races;
command broadcasters to sell candidates non-preemptible time at
a discounted rate;
adopt certain provisions of the Bush proposal (codifying the
Beck decision protecting employee rights, attacking "bundling,"
limiting gerrymandering).
We need to study the Dole/McConnell package further to determine
whether it is so restrictive on speech as to present real
constitutional difficulties. By banning even non-connected PACs,
for example, and by placing de facto restrictions on how much of
their own money candidates can spend, the bill may go beyond what is
allowed under the Supreme Court cases permitting restrictions on
contributions aimed at reducing corruption.
The proposal on the whole correctly recognizes that it is the
source, not the amount of campaign monies that presents the real
corruption problem. Thus, the bill operates without imposing
overall limits or a cap on campaign expenditures (which would tend
to hamper challengers who confront the built-in advantages of
incumbent name recognition and perks). It also steers away from
costly public financing schemes.
B. The Administration Proposal
The Administration bill, introduced last year by Republican Leaders
Dole and Michel, is based upon three guiding principles:
reducing special interest influence;
promoting competition/reducing unfair incumbent advantages;
enhancing the role of individual citizens and the political
parties.
The proposal would achieve these goals consistent with
constitutional principles. Among other reforms, the Administration
bill:
Eliminates PACs subsidized by corporations, labor unions, and
trade associations. These groups account for 90% of all PAC
money contributed.
Tightens limits on "non-connected" PACs, reducing maximum
permitted contributions from $5,000 to $2,500 per candidate.
Requires full disclosure of all "soft money" contributions and
assures that "non-federal" dollars are not used to support
federal candidates.
Eliminates certain unfair incumbent advantages by barring the
"rollover" of campaign funds from one election to the next,
banning use of the frank for unsolicited mass mailings, and
ending gerrymandering by requiring neutral redistricting
criteria.
Strengthens political parties by increasing the amounts they
can spend on behalf of congressional candidates.
Talking Points
Any reform proposal must be judged by the principles underlying the
President's approach:
-
attacking special interest influence;
-
promoting electoral competition;
-
increasing the voice of individual citizens and the parties.
We have not fully analyzed the new Senate proposal, but its
goals appear to be in line with our own and we applaud this
significant effort toward true reform. We hope to work with
Congress to achieve reforms along the lines suggested by the
President last year.
We commend the Senate Republicans for sharing our conclusion
that true campaign finance reform must be aimed not at
protecting incumbents but at reducing special interest
influence on the election process.
Special interest influence is best curtailed by eliminating
special interest PACs, and both the Administration bill and the
new Dole/McConnell proposal flatly abolish PACs subsidized by
corporation, labor unions, and trade associations. We must
seize this opportunity to eliminate the undue influence of such
PACs.
These proposals stand in stark contrast to other bills that
would enshrine special interest PACs by keeping them part of
the system and limiting overall contributions (thus maximizing
the importance of early special interest PAC money flowing
easily to incumbents).
The new proposal also appears to head in the right direction
because it does not seem designed to lock incumbents into
office: it recognizes that challengers generally begin at a
significant disadvantage and must mount effective campaigns in
order to have a chance of winning. The proposal, like the
Administration bill, also attacks certain of the unfair
incumbent advantages such as taxpayer funded mailings and
gerrymandering.
Done 1/24/90 copies to
THE WHITE HOUSE
Bill and they
AC HAS SEEN 5/24
WASHINGTON
May 22, 1990
Mary
MEMORANDUM FOR ANDY CARD
ROGER PORTER
FROM:
C. BOYDEN GRAY CMG
SUBJECT:
United States V. Washington
We have been approached persistently by a group called "United
Property Owners of Washington (UPOW) " about a suit currently in
U.S. district court in Washington State. The property owners,
along with the State, are concerned with the latest claims of
various Indian tribes to treaty shellfishing rights along the
coast. UPOW has requested a meeting with this office to garner
our support for their case. We have also received a significant
number of letters concerning this suit. UPOW has indicated that
it may try to arrange for meetings with your offices.
This office has reviewed the various materials provided by the
property owners, and we are of the opinion that it is
inappropriate for the White House to intervene at this stage.
Accordingly, we are referring all letters or other inquiries to
the Department of Justice for appropriate response. If you have
questions or receive correspondence concerning this matter, you
may wish to refer them to Jay Bybee (x2898).
Central Files Ly
THE WHITE HOUSE
4.27.90
David- -
I assume the Norton
situation has miligated because
of the fixendly relationship
they invited. Keep in Ands touch.
THE WHITE house
washington
Mr. David P. Forsberg
U.S. Department of Housing and
Urban Development
Boston Regional Office
Thomas P. O'Neill Jr. Federal Building
10 Causeway Street
Boston, Massachusetts 02222-1092
Please send by red dot.
Document Originally
Attached to
Following Page
Returned
THE WHITE HOUSE
ticketar/90
WASHINGTON
April 24, 1990
MEMORANDUM FOR ANDREW H. CARD, JR.
ASSISTANT TO THE PRESIDENT AND DEPUTY TO THE CHIEF
OF STAFF
FROM:
AMY L. SCHWARTZ ALS
ASSOCIATE COUNSEL TO THE PRESIDENT
SUBJECT:
Continental/Texas Air Invitation to the
Virginia Gold Cup Races
Per our conversation earlier today, this confirms my advice about
the invitation you received from Continental Airlines and Texas
Air Corporation to the Virginia Gold Cup Races, on May 5.
Texas Air and Continental Airlines are prohibited sources (i.e.
companies that do business with the Executive branch). Thus, you
may only accept if the event can be approved as a "widely-
attended gathering" attendance at which is in the interest of the
White House and would not create an appearance of impropriety.
According to a company employee, about 400 people have been
invited to a company-sponsored reception tent at the site of the
races. Invitees include Hill staff, Administration officials,
industry representatives, travel agents, consultants, and
families of company employees. The company would supply a
complimentary ticket to the races, and once admitted to the
races, there is no charge for admission to the tent. Admission to
the races is ordinarily $35 at the door (or $25 in advance).
Although going to the company reception tent at the races can be
approved under our usual standards, Counsel's Office has
generally not approved acceptance of complimentary tickets to
events from groups other than the sponsoring organization.
Accordingly, since the races themselves are not sponsored by
Texas Air/Continental, it would be appropriate for you to
purchase your own ticket to the races. Once admitted to the race
area, however, you could freely go to the Texas Air/Continental
tent and accept the offered refreshments there.
I am returning the original invitation that you sent to us with
your request for advice.
Please feel free to call if you have any questions.
Attachment
USTA
UNITED STATES TELEPHONE ASSOCIATION
JOHN SODOLSKI
President
April 17, 1990
Mr. Andrew H. Card, Jr.
Assistant to the President
Deputy to the Chief of Staff
Executive Office of the President
1600 Pennsylvania Avenue, N.W.
Washington, D.C. 20500
Dear Mr. Card:
I am delighted that you and your wife Kathleen will be
able to join us for the Annual Running of the Virginia
Gold Cup, and other steeplechase races, on Saturday
afternoon, May 5, 1990. My wife Jan and I look forward to
seeing you there. Enclosed you will find badges, parking
passes and parking instructions. On the back of the
parking pass there are directions to The Plains. A map of
the Great Meadow Course is also enclosed.
You should anticipate arrival as early as possible. We
will be set up and ready to go by 11:00 a.m. There will
be a lunch in the USTA tent on the course. The last race
of the afternoon usually is run at about 4:30 p.m.
If you have any questions, please call Virginia Brown at
835-3116.
Sincerely,
john sell
900 19th Street, N.W. Suite 800 Washington, D.C. 20006-2105 (202) 835-3220
ID #
CU
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
o OUTGOING
H INTERNAL
I INCOMING
Date Correspondence
Received (YY/MM/DD)
/
/
Name of Correspondent:
Andy Card
MI Mail Report
User Codes: (A)
(B)
(C)
Subject:
the Virgined Gold Cup races, May
Request for approval to attend
ROUTE TO:
ACTION
DISPOSITION
Tracking
Type
Completion
Action
Date
of
Date
Office/Agency
(Staff Name)
Code
YY/MM/DD
Response
Code
YY/MM/DD
Cuat 12 Cuoje
ORIGINATOR 9004/13
/
/
Referral Note:
A
90,0413
590,0416
Referral Note:
/
/
/
/
-
Referral Note:
/
/
/
/
-
Referral Note:
/
/
/
/
-
Referral Note:
ACTION CODES:
DISPOSITION CODES:
A - . Appropriate Action
I . Info Copy Only/No Action Necessary
A - Answered
C Completed
C - Comment/Recommendation
R - Direct Reply w/Copy
B - Non-Special Referral
S Suspended
D . Draft Response
S For Signature
F . Furnish Fact Sheet
X Interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
Type of Response = Initials of Signer
Code = "A"
Completion Date = Date of Outgoing
Comments:
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
Always return completed correspondence record to Central Files.
Refer questions about the correspondence tracking system to Central Reference, ext. 2590.
Tohee
THE WHITE HOUSE
AC HAS SEED 3/28
WASHINGTON
And
March 28, 1990
MEMORANDUM FOR ANDREW H. CARD, JR.
ASSISTANT TO THE PRESIDENT AND
DEPUTY TO THE CHIEF OF STAFF
FROM:
LEE S. LIBERMAN 1st
ASSOCIATE COUNSEL TO THE PRESIDENT
SUBJECT:
Federal Courts Study Committee Request
The Federal Courts Study Committee will issue its findings and
recommendations on Monday, and would like to meet with the
President personally to present its report to him. The
Committee, we understand, will separately meet with the Chief
Justice and with the Speaker of the House.
Created by statute, the Committee is composed of federal judges,
scholars, and legislators (Heflin, Grassley, Kastenmeier and
Moorhead), and includes one Administration member (the Assistant
Attorney General for the Criminal Division). Its report has been
fifteen months in the making and will be the focus of serious
discussion in Congress. In commenting on drafts of the
forthcoming report, the Administration endorsed a number of the
Committee recommendations, including the controversial proposal
to abolish "diversity" jurisdiction (whereby cases may go to
federal rather than state courts solely because the adverse
parties are from different states). Other Committee proposals
are less desirable, including new tax court recommendations and
certain proposals in the criminal law area.
The distinguished membership of the Committee and the significant
efforts it has made in preparing the report seem deserving of
respect, and the proposals will prompt some legislative action.
Because we are unlikely to be in full agreement with the report,
however, we should not be seen as embracing it without further
study. The President is scheduled to be out of town on Monday,
which may provide an excuse to have some other Administration
official accept the report. We would suggest that either the
Vice President or the Attorney General serve that ceremonial
function.
Do you concur that either the Vice President
,
the Attorney General
, or some other
official
should be designated to receive the
report?
Or do you believe that the President should meet with the
Committee's representatives to receive the report upon his return
to Washington?
a review of the report,
THE WHITE HOUSE
WASHINGTON
April 17, 1990
Dear Spike,
Thank you for your recent letter on behalf of
Greg Mize for a Superior Court judgeship.
Your recommendation is appreciated, and I will
share it with the appropriate officials.
Great to hear from you. Keep in touch.
Sincerely,
Andrew AndyCard H. Card, Jr.
Assistant to the President
and Deputy to the Chief of Staff
&
Mr. S. Steven Karalekas
1250 Connecticut Avenue, N.W.
Washington, D.C. 20036
S. STEVEN KARALEKAS
1250 CONNECTICUT AVE., NORTHWEST. WASHINGTON, D. C. 20036
April 12, 1990
The Honorable Andrew H. Card
Assistant to the President and
Deputy to the Chief of Staff
The White House
Washington, D.C. 20500
Dear Andy:
I just learned from my friend, Greg Mize,
general counsel to the D.C. City Council, that
President Bush has nominated him for one of the
vacate Superior Court judgeships. He is the fellow
I wrote you about recently. It is a magnificent
appointment and I know Greg will be a terrific
judge.
Looking forward to seeing you soon. Take
care, Andy.
Sincerely,
Spike
S. Steven Karalekas
SSK/bam
I
THE WHITE HOUSE
WASHINGTON
SK
March 30, 1990
MEMORANDUM FOR ANDREW H. CARD, JR.
ASSISTANT TO THE PRESIDENT AND
DEPUTY TO THE CHIEF OF STAFF
FROM:
FREDERICK D. NELSON F.O.N.
ASSOCIATE COUNSEL TO THE PRESIDENT
SUBJECT:
Civil Rights Legislation: Veto Threat
With the Senate Labor Committee scheduled to mark up the Kennedy-
Hawkins civil rights legislation on Wednesday April 4, the
Department of Justice has drafted a report laying out the
Administration's objections to the bill and supporting the
Administration's own proposal. The report, which has not yet
been sent into OMB clearance, contains a "senior advisors" veto
threat.
Boyden, Roger Porter, and the Office of Legislative Affairs all
agree that the Administration needs to express its strong and
committed opposition to the Kennedy-Hawkins legislation in order
to keep in place legislators who fear going onto a limb that the
Administration might later saw off. Counsel's Office, OPD and
OLA therefore strongly recommend the proposed veto language,
which would be welcomed by our Hill allies.
Justice expects that the Labor Committee will approve Kennedy-
Hawkins on an 11-5 vote, with the 5 Republicans who are not
co-sponsors voting in the negative. Kennedy-Hawkins currently
has 39 cosponsors in the Senate (with Lieberman and Dixon being
the newer additions) and 156 cosponsors in the House. These
numbers still are smaller than those often associated with "civil
rights" legislation. The debate thus far has focused
significantly on the quota issue, although Kennedy-Hawkins
backers to the dismay of the business community will try to move
the debate to remedies (noting that racial discrimination results
in compensatory and punitive damages under the Civil War
statutes, while relief for discrimination on the basis of sex and
other grounds is limited to injunctions and back pay under Title
VII).
A summary of the draft report is attached, along with the draft
itself. I would appreciate your letting me know at your earliest
convenience whether you and Governor Sununu agree that the DOJ
draft report should contain a "senior advisors" veto threat and
be circulated through the OMB process in that form.
03/30/90
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1
002
U.S. Department of Justice
Office of the Deputy Attorney General
The Deputy Attorney General
Washington, D.C. 20530
Honorable Edward M. Kennedy
Chairman
Committee on Labor and Human Resources
U.S. Senate
Washington, D.C. 20510
Dear Chairman Kennedy:
This letter presents the views of the Administration
regarding S. 2104, the Civil Rights Act of 1990. For the reasons
discussed below, senior advisers to the President would recommend
Executive disapproval of S. 2104, if it reached the President's
desk.
Sections 1 through 3 of the bill are, respectively, the
short title, statement of findings and purpose, and definitions.
The substantive provisions of the bill begin with section 4,
which would reverse Wards Cove Packing Co. V. Atonio, 109 S. Ct.
2115 (1989).
In Wards Cove, the Court addressed three important stages of
a lawsuit alleging that an employer's hiring practices had the
effect of discriminating in violation of Title VII of the Civil
Rights Act of 1964. First, the Court reaffirmed that statistics
may form the basis for a prima facie case of disparate impact.
It also reaffirmed that the statistics must compare the
employer's workforce to the pool of qualified job applicants or
qualified members of the labor force. Because any "racial
imbalance" may result from an absence of qualified or interested
minorities in the labor force, the proper comparison for
statistical purposes is between the relevant portion of the
employer's workforce and the labor force or applicant pool. See,
e.g., Hazelwood School District V. United States, 433 U.S. 299,
308 (1977).
A second, related issue addressed by the Court involved
causation. Consistent with established precedent, the Court
noted that a Title VII plaintiff must identify the specific
employment impact. practice that has produced the challenged disparate
S. 2104 would permit plaintiffs to allege simply that the
end product of all the employer's employment practices was a
03/30/90
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003
statistically disparate workforce. The Court's approach seems to
us to be a much more sensible, efficient, and fair allocation of
litigation responsibilities. Absent the link between specific
practices and a resulting disparate impact, employers could be
found liable for the numerous innocent factors that can cause
statistical imbalance in the composition of a workforce.
Liability could be premised entirely on statistics showing
"bottom line" racial imbalance, a measure of discrimination that
the Supreme Court has appropriately rejected when bottom line
balance has been offered as a justification for discriminatory
selection devices. See Connecticut V. Teal, 457 U.S. 440 (1982).
Moreover, asking the plaintiff to identify the specific
practices that produce a disparate impact before employers are
asked to justify them is consistent with traditional rules
allocating burdens of proof. This allocation of responsibilities
strikes us as more efficient and equitable than allowing
plaintiffs simply to allege that a hiring system produces a
disparate impact and forcing employers to demonstrate that each
individual employment practice within that system does not have a
disparate impact, as S. 2104 would. Furthermore, in view of the
liberal discovery rules and the record-keeping requirements of
the Uniform Guidelines on Employee Selection Procedures, 29 CFR
1607.1 et seq. (1988), we do not think that this requirement of
specificity should unduly burden plaintiffs.
Indeed, the Court's prior "disparate impact cases have
always focused on the impact of particular hiring practices on
employment opportunities for minorities," Wards Cove, 109 S. Ct.
at 2124, and plaintiffs have always targeted those specific
practices. See Griggs V. Duke Power Co., 401 U.S. 424 (1971)
(high school diploma requirement) ; Dothard V. Rawlinson, 433 U.S.
321 (1977) (height and weight requirements for prison guards) ;
Albemarle Paper Co. V. Moody, 422 U.S. 405 (1977) (employment
tests and seniority systems) ; Connecticut V. Teal, 457 U.S. 440
(1982) (written examination) ; Watson V. Fort Worth Bank & Trust,
No. 86-6139 (June 29, 1988) (subjective judgment of supervisor).
The Court's rule is also consistent with the general practice in
the lower courts. Obviously, in the basically equitable approach
of Title VII, there could be exceptions to this rule if a court
is presented with a situation where it is literally impossible to
specify which of several criteria has caused the inquiry. But
those instances are not foreclosed by Wards Cove and ought to be
treated as exceptions and not as a reason to amend the statute.
Finally, in Wards Cove, the Court addressed the burdens
imposed on the parties once a plaintiff has established a prima
facie case of discrimination. The Court held that the employer's
burden was to produce evidence that the "challenged practice
pursues, in a significant way, the legitimate employment goals of
the employer." Wards Cove, 109 S. Ct. at 2125-2126. The burden
of persuasion, however, remains with the plaintiff. The
2
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1
004
plaintiff may defeat the employer's evidence by showing that
reasonable alternatives would serve the employer's purpose
equally well.
S. 2104 would reverse these requirements. It would shift
the burden of persuasion to the employer and require that he
prove that the challenged practice was "essential to effective
job performance." In our view, the Court correctly held that the
burden of persuasion remains with the plaintiff throughout a
disparate impact case, just as it does in a case alleging
intentional discrimination, see Texas Department of Community
Affairs V. Burdine, 450 U.S. 248, 256-258 (1981), and just as it
generally does when causation is an element of a violation. See
Restatement (Second) of Torts 433B (1965). This is also the
accepted rule in civil litigation generally. Fed. R. Evid. 301.
We think it would be unjustifiable to impose a greater burden on
an employer who is alleged to have violated Title VII by
employing a practice that produced a statistical imbalance
than on one who is alleged to have engaged in purposeful
discrimination.
Likewise, We think that the Court's formulation of the
applicable substantive standard is fully justified as an
appropriate balancing of the interests of employers and
employees. Prior decisions had used varying terminology in
describing the employer's burden after a showing of disparate
impact. See, e.g., Connecticut V. Teal, 457 U.S. 440, 446 (1982)
(citation omitted) ("manifest relationship to the employment") ;
Albemarle Paper Co. V. Moody, 422 U.S. 405, 425 (1975) ("'job
related") ; Griggs V. Duke Power Co., 401 U.S. 424, 431, 432
(1971) ("business necessity"; "manifest relationship to the
employment") ; New York Transit Authority V. Beazer, 440 U.S. 568,
587 n.31 (1979) ("legitimate employment goals of safety and
efficiency * * * are significantly served"). The standard molded
by the Court from those prior formulations, i.e., that a
"challenged practice serves, in a significant way, the legitimate
employment goals of the employer" (Wards Cove, 109 S. Ct. 2125-
2126), has sufficient teeth to ensure that employers do not use
practices of dubious business utility, while not pressuring
employers to resort to hiring and promotion quotas, and
respecting the needs of employers to preserve legitimate
management prerogatives. We find it unlikely that this
formulation of the standard for a business justification will
preclude the assertion of meritorious claims, particularly since
the plaintiff may still prevail by showing that other reasonable
business practices would satisfy the employer's need without
producing a discriminatory effect.
Those who say that Wards Cove represents a radical change in
the law are simply wrong. Each of the Court's holdings was
presaged by earlier Supreme Court and lower court decisions.
These adjustments represent at most judicial fine tuning to a
3
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005
method of proving discrimination that has been developed entirely
by courts. We are convinced that the Court thoughtfully balanced
the competing interests and produced a workable distillation of
some eighteen years of precedents applying the disparate impact
standard. Indeed, the Court in large part adopted the approach
urged by a brief filed by the United States. This approach will
enable employees to pursue successfully meritorious claims, and
employers will not be unduly burdened in defending claims of
discrimination. Nor will employers be encouraged to resort to
quotas to ward off the threat of lawsuits based on statistical
imbalances.
Even though the employer's burden is now established as one
of production and not proof, it is by no means insubstantial.
Under existing Supreme Court precedent (Texas Department of
Community Affairs V. Burdine, 450 U.S. 248, 254-255 (1981) the
employer's burden is "to rebut the presumption of discrimination"
by "the introduction of admissible evidence" which is "legally
sufficient to justify a judgment for the defendant."
Section 5 of the bill would reverse the holding in Price
Waterhouse V. Hopkins, 109 S. Ct. 1775 (1989), in which the Court
ruled in favor of a woman who alleged that she had been denied
partnership by her accounting firm on account of her race. The
Court there faced a so-called mixed motive case in which plain-
tiff alleged that her sex had supplied part of the motivation for
her rejection for partnership. The Court held that once she had
established by direct evidence that sex played a substantial part
in the decision, the burden shifted to the employer to show that
it would have reached the same decision had sex not been
considered. The result reached in Hopkins is as favorable or
more favorable to plaintiffs as that adopted by the overwhelming
(9-2) majority of courts of appeals. See id. at 1784 n.2. It is
also consistent with the Supreme Court's own earlier decisions
for mixed motive cases brought under the Constitution and the
National Labor Relations Act. See Mt. Healthy City School
District Board of Education V. Doyle, 429 U.S. 274 (1977) ; NLRB
V. Transportation Management Corp., 462 U.S. 393 (1983) ; see also
Hunter V. Underwood, 471 U.S. 222 (1985). We think that the
Court's balancing of interests is reasonable and should be
preserved.
Yet, S. 2104 would state that a violation of Title VII is
established when the plaintiff demonstrates that race, color,
religion, sex, or national origin was "a motivating factor" in an
employment decision, regardless of whether the employer
demonstrates that he would have made the same decision for
legitimate reasons absent the discrimination. The latter proof
would go only to the question whether the plaintiff was entitled
to the position that he or she had been denied. The bill would
reverse the general rule that in employment discrimination cases,
as in any civil case, the plaintiff must show that the
4
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006
defendant's unlawful conduct caused an injury. Allowing recovery
based not on injury but on an employer's state of mind is
antithetical not only to the spirit of Title VII, but to the
spirit of our legal system as well. Of course, the inequities
resulting from such an approach would be further magnified in the
class action context. At the very least, reversal of Price
Waterhouse is premature, since there was not a majority opinion
for the Court and there is no evidence that the decision has
worked inequitably. Moreover, the creation of this new category
of Title VII violation would have an exacerbating effect if
section 8 of the bill were enacted, authorizing compensatory and
punitive damage awards for disparate treatment violations of
Title VII. A plaintiff would be entitled to such awards and
attorney fees even if the employer demonstrated that he would
have made the same employment decision he did for legitimate
reasons absent the alleged discrimination.
Section 6 of the bill would reverse the holding in Martin V.
Wilks, 109 S. Ct. 2180 (1989). That case arose in the context of
a civil rights action, but it turned on principles of fairness
and access to court that apply in every area. The Court held
that white firefighters, who had not been parties to a consent
decree that mandated racial preferences, could have their day in
court to contend that the decree violated their civil rights.
The Court rejected the so-called collateral attack doctrine,
pursuant to which some courts had held that, once a decree was
entered, it could not be challenged, even by individuals who had
not been parties to the original lawsuit.
The Court's decision turned on a straightforward application
of the Federal Rules of Civil Procedure and underlying notions of
due process. The Federal Rules establish procedures for joinder
of all interested parties in a case. Quite simply, and quite
fairly, anyone who is not joined in the lawsuit and given an
opportunity to appear in court to protect his or her rights
cannot be bound by the final judgment. The Court's decision is a
reaffirmation of the fundamental notion that everyone is entitled
to his or her day in court. The Department of Justice advocated
the position adopted by the Court.
S. 2104, however, would reverse this holding by prohibiting
challenges to a Title VII decree by individuals who had notice of
the proposed judgment and an opportunity to present objections to
it or if the interests of the challenger were adequately
represented by another individual who challenged the judgment.
The bill would also forbid challenges if the court that entered
the judgment determined that reasonable efforts were made to
notify interested persons of the judgment.
We strongly oppose this provision. Rather, we think that
Wilks should have a salutary effect. By requiring early joinder
of all those who may be adversely affected by a lawsuit, the
5
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007
decision should enable courts to consider the full range of
interests affected by a proposed decree. The decision should
lead to fairer, more carefully considered, and unassailable
remedies for discrimination. It will discourage defendants from
settling discrimination cases by bargaining away third party
rights, rather than making whole the actual victims of
discrimination. In addition, the participation of all of the
affected parties in formulation of a decree should aid in its
implementation. Successful, voluntary compliance with Title VII
may depend upon the cooperation of a broad range of individuals.
Involving as many of those individuals as possible in formulating
the decree will lead to smoother and more effective
implementation of the remedy for discrimination. We view this
decision working in conjunction with our proposed amendment to
alter the statute of limitations in response to Lorance V. AT&T
Technologies, Inc., 109 S. Ct. 2261 (1989), to ensure that
aggrieved individuals have an opportunity to litigate their
claims. In practice, the only time a consent decree will be
disturbed under Wilks is when a federal judge finds that its
operation is violating the rights of the challenging party. It
is hard to understand why anyone would try to prevent such an
adjudication. The unfortunate effect of this provision would be
to insulate illegal or unconstitutional quota decrees from
judicial review.
Finally, by foreclosing appropriate review, the proposed
Wilks legislation would raise serious constitutional concerns
under the Due Process Clause of the Fifth Amendment. In
particular, proposed section (m) (1) (B) of Section 6 of the bill
would authorize the deprivation of an individual's legal claims
without any attempt to notify the individual that his rights were
in jeopardy. Rather, it would suffice that a court found that
the individual's interests had been represented adequately by
another party, regardless of whether the excluded individual
stood in privity or in some similar relationship with the
representative party. This provision of the bill is inconsistent
with the "principle of general application in anglo-American
jurisprudence that one is not bound by a judgment in personam in
a litigation in which he is not designated as a party or to which
he has not been made a party by service of process." Martin V.
Wilks, 109 S. Ct. 2184, quoting Hansberry V. Lee, 311 U.S. 32. 40
(1940) (black home buyers could not be bound by prior suit
approving racially restrictive covenant, since they had not been
parties nor in privity with parties to the earlier suit). It
also cannot be squared with the Supreme Court's consistent
holding that notice is an "elementary and fundamental requirement
of due process." Mullane v. Central Hanover Bank & Trust Co.,
339 U.S. 306, 314 (1950).
Proposed section (m) (1) (C) also violates the Due Process
Clause. This section would cut off future challenges to
discriminatory employment practices if the court entering the
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judgment determined that "reasonable efforts were made to provide
notice to interested persons." As discussed in the preceding
paragraph, a general, and fundamental, principle in our legal
system is that individuals are not bound by litigation in which
they are not a party -- that everyone is entitled to his or her
day in court. This bill, moreover, differs considerably from
other special statutory schemes approved by the Supreme Court
where the need to resolve the ownership of specific property
justifies foreclosing successive litigation by nonlitigants of
preexisting claims. This is quite different from the preclusion
of discrimination claims, including constitutional equal
protection claims. Moreover, this bill purports to foreclose not
only legal claims existing at the time of adjudication, but also
claims that may arise in the future. Indeed, claims foreclosed
by S. 2104 would arise only after judgment had been entered and
new acts of alleged discrimination occurred against, for example,
individuals who had never previously applied for a job with the
employer or, indeed, had not been born at the time of the
original decree. Further, the procedure for determining the
reasonableness of notice under section (m) (1) (c) is
constitutionally defective. Such a proceeding would necessarily
lack the adversarial character which normally gives us confidence
in determinations reached by courts. Indeed, not only will the
proceeding be nonadversarial, but defendants can be expected to
support plaintiffs' claim to have provided reasonable notice. We
do not believe an individual's due process rights are satisfied
by a court determination entered with no one present to represent
the individual's interests and where everyone who is present has
interests contrary to those of the individual. Cf. Parklane
Hosiery Co. V. Shore, 439 U.S. 322, 327 n.7 (1979) ; Blonder-
Tonque Laboratories, Inc. V. University of Illinois Foundation,
402 U.S. 313, 329 (1971).
Section 8 of the bill provides for compensatory damages for
intentional violations of Title VII and punitive damages when
violations are committed with malice, or reckless or callous
indifference to the rights of others. The section also expli-
citly acknowledges that any party will have a right to request a
jury trial in an action for damages. This section represents a
major change in Title VII and is in no way related to any of last
Term's decisions. It was part of the original compromise that
led to passage of Title VII that the only monetary relief avail-
able would be in the form of back pay. The scheme of relief
authorized in Title VII reflected a careful balancing of
employees' rights and the need to preserve legitimate management
prerogatives. Title VII has proved effective in eradicating
systematic exclusion of minorities and women from the workplace.
The bill's proposal to authorize damages threatens to upset
this careful balance. Adding damages to the remedies already
available will discourage conciliation and encourage litigation.
Plaintiffs' lawyers will inevitably include claims for pain and
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suffering, emotional harm, and the like as a matter of course.
Placing these issues before a jury, as well as the complex and
emotional issues of liability that are often involved in Title
VII cases, will turn Title VII litigation into a time-consuming,
high risk venture for both plaintiffs and defendants. We think
it is better to preserve Title VII's current remedial scheme,
with bench trials and prompt equitable relief including back-pay
and rightful place seniority, which has worked so well for over
25 years.
The Administration endorses the bill's effort to overturn
two of last Term's decisions: Lorance V. AT&T Technologies,
Inc., 109 S. Ct. 2261 (1989), and Patterson V. McLean Credit
Union, 109 S. Ct. 2363 (1989). The Administration has, however,
itself proposed legislation to accomplish these results, and, for
the reasons stated below, we urge the approach taken in the
Administration's bill rather than S. 2104.
Section 7 of S. 2104 would reverse the holding in Lorance V.
AT&T Technologies, Inc., supra, in which female employees
challenged a seniority system pursuant to Title VII, claiming
that it was adopted with an intent to discriminate against women.
Although the system was facially nondiscriminatory and treated
all similarly situated employees alike, it produced demotions for
plaintiffs, who claimed that the employer had adopted the
seniority system intentionally to alter their contract rights.
The Supreme Court held that the claim was barred by Title VII's
requirement that a charge must be filed within 180 days (or 300
days if the matter can be referred to a state agency) after the
alleged discrimination occurred.
The Court held that the time for plaintiffs to file their
complaint began to run when the employer adopted the allegedly
discriminatory seniority system, since it was the adoption of the
system with a discriminatory purpose that allegedly violated
their rights. According to the Court, that was the point at
which plaintiffs suffered the diminution in employment status
about which they complained. The Court viewed this result as
dictated by its prior cases holding that the statute of
limitations begins to run when the act of discrimination occurs
and not when its effects are felt.
The rule adopted by the Court was contrary to the position
taken by the Government and the EEOC. It would shield large
numbers of existing seniority systems from legitimate
discrimination claims. The discriminatory reasons for adoption
of a seniority system may become apparent only when the system is
finally applied to affect the employment status of the employees
that it covers. Moreover, such an application surely focuses the
controversy between an employer and an employee more sharply and
permits more precise litigation. In addition, a rule that limits
challenges to the period immediately following adoption of a
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seniority system will promote unnecessary, as well as unfocused,
litigation. Employees will be forced to challenge the system
before it has produced any concrete impact or forever remain
silent. Given such a choice, employees who might never suffer
harm from the seniority system may be forced to choose to file a
charge -- an especially difficult choice since they may be
understandably reluctant to initiate a lawsuit against an
employer if they do not have to. And, finally, the Court's rule
will prevent employees who are hired more than 180 (or 300) days
after adoption of a seniority system from ever challenging the
adverse consequences of that system, regardless of how severe
they may be. Such a rule fails to protect sufficiently the
important interest in eliminating employment discrimination that
is embodied in Title VII.
Likewise, a rule that an employee may sue only within 180
(or 300) days after becoming subject to a seniority system is
unfair to both employers and employees. The rule fails to
protect seniority systems from delayed challenge, since so long
as employees are being hired someone will be able to sue. And,
while this rule would give every employee a theoretical
opportunity to challenge a discriminatory seniority system, it
would do so, in most instances, before the employee's status had
been adversely affected by the seniority system and, therefore,
before the challenge was sufficiently focused and before it was
clear that a challenge was necessary. Finally, most employees
would be reluctant to begin their jobs by suing their employers.
The Administration, therefore, supports an amendment to
Title VII of the Civil Rights Act of 1964 that would start the
period for filing a charge when a discriminatory system was
adopted, when an employee becomes subject to the system, or when
he is injured by it.
S. 2104 would address Lorance V. AT&T Technologies, Inc.,
supra, by adding the following sentence to Section 703 (h) of
Title VII of the Civil Rights Act of 1964:
Where a seniority system or seniority
practice is part of a collective bargaining
agreement and such system or practice was
included in such agreement with the intent to
discriminate on the basis of race, color,
religion, sex, or national origin, the
application of such system or practice during
the period that such collective bargaining
agreement is in effect shall be an unlawful
employment practice.
This provision contains two apparent and significant limitations.
First it would apply only to seniority systems that are adopted
as part of a collective bargaining agreement. Apparently, it
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011
would not apply to a non-union shop or where a seniority practice
was not the result of a collective bargaining agreement or, where
a collective bargaining agreement had expired, but the seniority
system remained in place.
Second, this provision does not make explicit that an
unlawful employment practice also occurs when a discriminatory
seniority system is adopted and when an employee first becomes
subject to it, even though it has not been "applied" in any
tangible sense to the employee to produce some employment
consequence. Rather, this amendment states only that the
unlawful employment practice occurs when the system is applied.
Thus, an employee may be precluded from challenging a
discriminatory seniority system any time before it is applied to
him or her.
By contrast, the Administration proposal is broader. It
states:
For purposes of this section, an unlawful
employment practice occurs when a seniority
system is adopted, when an individual becomes
subject to a seniority system, or when a
person aggrieved is injured by the
application of a seniority system, or
provision thereof, that was adopted for an
intentionally discriminatory purpose, in
violation of this Title, whether or not that
discriminatory purpose is apparent on the
face of the seniority provision.
This proposal would reach all seniority systems, regardless
whether they were part of a collective bargaining agreement. It
also makes explicit that an employee may challenge a
discriminatory system when it is adopted, when the employee first
becomes subject to it, and when the employee suffers some injury
by virtue of the application of the system. We, therefore, urge
adoption of the Administration's language.
Section 12 of S. 2104 would overrule Patterson V. McLean
Credit Union, 109 S. Ct. 2363 (1989). In Patterson, an employee
sued pursuant to 42 U.S.C. 1981, alleging that her employer had
harassed her on the job, failed to promote her, and ultimately
discharged her, all because of her race. The Court held that
Section 1981 is limited by its terms to prohibiting discrimina-
tion in "mak[ing] and enforc[ing] contracts," and does not extend
to "problems that may arise later from the conditions of continu-
ing employment." Patterson, 109 S. Ct. at 2372. Thus, the Court
held, the statute prohibits discrimination -- whether governmen-
tal or private - in the formation of a contract and in the right
of access to a legal process that will enforce established con-
tract obligations without regard to race. While the plaintiff's
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allegation that she had been discriminatorily denied promotion
might fall within the prohibition against discrimination in
making contracts, her allegations of harassment on the job
addressed only conditions of employment. And there was no
allegation that she had been discriminatorily denied access to
legal process to enforce her contract of employment.
Our review of the cases applying Patterson leads us to the
conclusion that the Court's reading is causing many meritorious
cases to be dismissed and thus creates a significant gap in the
fabric of our civil rights laws that must be filled. We,
therefore, support corrective legislation to ensure that section
1981 will apply to the performance, breach, and termination of
contracts to the same extent that it does to their making and
enforcement. Furthermore, to remove any possible ambiguity for
future cases, we believe that it is appropriate to codify the
holding of Runyon V. McCrary, 427 U.S. 160 (1976), that section
1981 prohibits private, as well as governmental discrimination.
Again, however, we urge adoption of the language offered by
the Administration. S. 2104 would overturn Patterson by adding
the following sentence to 42 U.S.C. 1981:
For purposes of this section, the right to
"make and enforce contracts" shall include
the making, performance, modification and
termination of contracts, and the enjoyment
of all benefits, privileges, terms and
conditions of the contractual relationship.
The Administration bill would add the following new language:
The rights protected by this section are
protected against impairment by
nongovernmental discrimination as well as
against impairment under color of state law.
This section affords the same protection
against discrimination in the performance,
breach, or termination of a contract, or in
the setting of the terms or conditions
thereof, as it does in the making or
enforcement of that contract.
The proposals are comparable in extending the protection of
section 1981 to every aspect of contract performance and
termination. The Administration proposal, however, goes beyond
S. 2104 in codifying the holding of Runyon V. McCrary, 427 U.S.
160 (1976), that section 1981 reaches private, as well as
governmental conduct. While the Supreme Court declined to
overrule Runyon in Patterson, this provision ensures that Runyon
will remain the law of the land.
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S. 2104 contains several changes to current civil rights law
of less significance and varying degrees of merit. At present,
however, we conclude that none of them is necessary.
Section 7 (a) (2) of S. 2104 would overturn much of the
Supreme Court's jurisprudence regarding the time for challenging
an unlawful employment practice. Under current law, an employee
must challenge such a practice within 180 days after it
"occurred." Section 7 (a) (2) would also permit such a challenge
within 180 days after the unlawful practice had "been applied to
affect adversely the person aggrieved." The selection of a
starting point for the running of a statute of limitations
initially involves a weighing of two important interests: (1)
ensuring that as many meritorious claims as possible can be
pursued, while (2) not unfairly burdening employers with the
obligation to defend stale suits. The Court has generally
designated the point at which the employee receives notice of an
employment action as the relevant moment. See Delaware State
College V. Ricks, 449 U.S. 250 (1980) ; Chardon V. Fernandez, 454
U.S. 6 (1981). S. 2104 would go too far in upsetting the present
balance. By focusing on the subsequent applications of an
employment practice, rather than the occurrence of the practice,
S. 2104 would allow charges to be filed long after --in many
instances years after -- the challenged practices occurred.
Increasing the time between the challenged act and the filing of
a charge will increase the likelihood that memories will fade,
witnesses will disappear, and documents will be lost, making it
more difficult for both plaintiffs and defendants to meet their
respective burdens, but placing at a particular disadvantage
defendants filed. who may not have been on notice that a charge would be
Similarly, section 7 (a) (1) would extend the statute of
limitations for filing a charge of discrimination pursuant to
Title VII from 180 days (or 300 days in a state that is certified
as having a comparable procedure) to 2 years. We are aware of no
body of proof that suggests a need for such prolongation of the
existing filing rules. Instead, this additional time between the
occurrence of the challenged practice and the charge will simply
increase the likelihood that employers will have to defend
against stale claims. It may also disadvantage some plaintiffs
by lulling them into delaying assertion of their claims until
their claims are stale and more difficult to prove. In the
Department's view, two years is longer than fairness to
plaintiffs requires and may seriously disadvantage employers.
Likewise, Section 10 (1) of S. 2104 would extend the time for
filing a charge against the federal government from 30 to 90
days. We are not convinced of the need for this change. The
short filing deadline ensures fresh claims and provides an
opportunity for structured resolution of a grievance before
positions become hardened.
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Section 9 of the bill addresses attorney and expert witness
fees in Title VII actions. Section 9 (2) would authorize awards
of the full amount of expert witness fees to prevailing parties.
The fees would be awarded according to the same standard that
governs awards of attorney fees; that is, prevailing plaintiffs
always recover and prevailing defendants recover if the plaintiff
acted frivolously or unreasonably.
Experts are often essential in Title VII litigation. The
development of a properly focused and relevant statistical case,
and defending against such a case, require the use of a range of
costly experts and computers. The prospect that these expenses
could be recovered would reduce the expected cost of bringing
suit and thereby encourage litigation. Certainly, more
meritorious suits might be brought; on the other hand, so might
more dubious actions. In all events, the current state of the
law regarding awards of expert fees is unsettled, and is likely
to be resolved soon. The Supreme Court recently granted
certiorari in West Virginia Hospital V. Casey, No. 89-994, to
resolve whether the fees of expert witnesses may be included in
an award of attorney fees pursuant to 42 U.S.C. 1988. Because
the statutory language of section 1988 and Title VII is similar,
that case should shed light on the question whether such fees may
be recovered pursuant to Title VII. Legislation may prove to be
premature.
Section 9 (3) of the bill would strike the language of
section 706 (k) of Title VII that states that attorney fees shall
be awarded "as part of the costs." This section would overturn
Marek v. Chesny, 473 U.S. 1 (1985), in which the Court held that
attorney fees awarded pursuant to 42 U.S.C. 1988 as part of the
costs were subject to Rule 68 of the Federal Rules of Civil
Procedure. Rule 68 states that when a timely pretrial offer of
settlement is made and "the judgment finally obtained by the
offeree is not more favorable than the offer, the offeree must
pay the costs incurred after the making of the offer." Thus,
Marek held that if a plaintiff rejects a pretrial offer and fails
to recover more at trial, he may not recover from the defendant
attorney fees incurred after the offer.
The Government supported this result as amicus curiae, and
we are not convinced that the current rule fails to make sense as
a matter of judicial administration. Rule 68 is designed to
encourage settlement and avoid litigation. The inclusion of
attorney fees as an expense that cannot be recovered serves those
goals. Title VII is otherwise designed to encourage resolution
of complaints prior to litigation and Rule 68 constructively
reinforces that structure. The Administration is not aware that
Marek has imposed substantial hardship.
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Section 9 (4) of the bill would prohibit a court from
entering a consent decree unless the parties and their counsel
attested that a waiver of attorney fees had not been compelled as
a condition of the settlement. This provision would overturn
Evans V. Jeff D., 475 U.S. 717 (1986), in which the Court held
that a district court has discretion to approve a settlement that
is conditioned on a waiver of statutory attorney fees. Again,
the Government urged this result as amicus curiae.
This provision is designed to eliminate a potential bind for
attorneys for Title VII plaintiffs. Where a defendant offers a
favorable settlement, but conditions it on the attorney's waiver
of any claim for attorney fees, the plaintiff's attorney will
often disserve his client by rejecting the offer, but may forego
compensation if he accepts. This provision, however, would
remove a chip from the bargaining table, thereby making
settlement less attractive by eliminating a way in which
defendants can limit their liability and be certain of the bottom
line. In addition, a district court has discretion to reject a
settlement that contains a compelled fee waiver. It may also
instruct the parties to negotiate fees separately. In view of
these safeguards, the Administration is not convinced that this
provision is necessary.
Section 9 (4) of S. 2104 would also authorize a party who
prevailed in a Title VII action to recover from the party against
whom relief was granted attorney fees incurred in defending that
relief from subsequent collateral attack. This provision
addresses indirectly the rule announced in Independent Federation
of Flight Attendants V. Zipes, 109 S. Ct. 2732 (1989), in which
the Court held that individuals bringing a collateral attack
would be treated as Title VII plaintiffs, not defendants, for
attorney fee purposes --- i.e., the original plaintiffs would
recover from them only if the collateral attack had been
frivolous. The Government, as amicus curiae, once again
supported this result.
While it is important to ensure that Title VII plaintiffs
can afford to defend the relief that they have won, and to
encourage relief that inappropriately infringes on the rights of
third parties, it is also important that defendants who settle
litigation not be left liable for open-ended and unforeseeable
fee awards resulting from collateral challenges. Pursuant to
this provision, the cost of another party's unsuccessful -- and
perhaps frivolous or ill-advised -- litigation would be imposed
on a defendant who had no control over it. The Administration is
not convinced that the solution offered by this provision is
wise.
Section 10 of the bill, in addition to lengthening the
statute of limitations for filing a charge against the federal
government, would also authorize payment of interest on Title VII
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awards against the United States. At present, such awards are
barred by sovereign immunity. The Administration does not
support this increase in the cost of the government's Title VII
litigation.
Section 11 of S. 2104 would require that all civil rights
statutes be broadly construed to effectuate their purposes. To
the extent that this provision suggests that courts should eschew
traditional rules of statutory construction in favor of judicial
policymaking, we oppose it. Civil rights statutes, like all
others, should be construed in at manner that is consistent with
their language and the intent of Congress.
Section 11 of the bill further provides that no federal
civil rights law shall be construed to "limit the rights,
procedures, or remedies available under any other Federal law
protecting such civil rights." Again, civil rights statutes
should be construed and reconciled according to their language
and the intent of the enacting Congress. To the extent that this
provision suggests that courts do otherwise, we oppose it.
Section 13 of the bill states that it shall not be construed
to affect "court-ordered remedies, affirmative action, or concil-
iation agreements that are otherwise in accordance with the law."
The purpose of this section is unclear. It should be clarified
so that it may be debated.
Section 14 of the bill contains a severability provision.
Section 15 of the bill creates transition rules. It states,
in effect, that each provision that overrules a Supreme Court
case shall apply retroactively to the date of the decision. It
also provides for vacating orders entered in the interim and
tolls until enactment of the bill the running of the statute of
limitations on actions that were not filed because of one of the
overturned decisions. By upsetting final judgments, this section
may unconstitutionally interfere with vested legal rights.
Finally, by changing the rules of employment discrimination
litigation retroactively, it raises serious fairness concerns,
Constitution. even when those concerns do not actually implicate the
In conclusion, the Administration supports overruling
Patterson and Lorance, but urges the Committee to adopt the
language of the Administration's proposal. The Department
vigorously opposes those parts of S. 2104 that would overturn
Wards Cove Packing Co. v. Atonio, Martin v. Wilks, and Price
Waterhouse V. Hopkins, as well as the creation of a damage remedy
for Title VII violations. Based upon this opposition, senior
advisers to the President would recommend Executive disapproval
if S. 2104 were presented to the President for signature.
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017
The Office of Management and Budget has advised us that
there is no objection to the submission of this report and that
enactment of S. 2104 would not be in accord with the program of
the President.
Sincerely,
Bruce C. Navarro
Acting Assistant Attorney General
16
Summary
Beyond the veto threat, the draft report expresses the
Administration's support for legislation reversing the results in
Patterson (by creating additional remedies for on-the-job racial
harassment, ensuring that Section 1981 covers the performance as
well as the formation of a contract) and in Lorance (by allowing
suits to challenge discriminatory seniority systems not only on
adoption, but also upon application to the affected employee).
Further, the draft report summarizes the principle bases of our
opposition to Kennedy-Hawkins:
it would pressure employers into adopting hiring quotas by
requiring any company whose workforce shows a racial or
sexual imbalance to prove that its hiring practices are
demanded by "business necessity" as "essential to effective
job performance" (thus shifting the burden of proof and
establishing an almost impossible standard to meet)
it would deprive people of their day in court (and would
infringe constitutional rights) by restricting the ability
of employees who were not parties to court-approved
settlements to challenge a settlement imposing racial
preferences when their own rights prove to be affected;
it would reverse for civil rights cases the general rule
that the plaintiff must show not only some degree of proper
motivation on the part of the defendant, but also show harm
resulting from that factor;
and it would upset Title VII's current remedial system by
providing compensatory and punitive damages for intentional
violations. (This section of the bill does not even purport
to address any Supreme Court decision; it alters the
carefully balanced determination that Congress made in
1964.)
The draft bill report also favorably contrasts the
Administration's responses to Patterson and Lorance with the
analogous Kennedy-Hawkins language. Further, the report
dismisses as unnecessary other more minor provisions contained in
Kennedy-Hawkins (such as certain statute of limitations
extensions, proposals to award expert witness fees to prevailing
parties [a matter now under Court review] and to authorize
payment of interest on awards against the U.S.). The report also
attacks the Kennedy-Hawkins dictate that all civil rights
statutes be broadly construed (as opposed, presumably, to being
interpreted in accord with their meaning consistent with
traditional statutory construction).