JAY E. GREGORY, SHERIFF OF PATRICK COUNTY, VIRGINIA, PETITIONER V.
UNITED STATES OF AMERICA

   No. 87-39

   In the Supreme Court of the United States

   October Term, 1987

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Fourth Circuit

   Brief for the United States in Opposition

            TABLE OF CONTENTS
   Question presented
   Opinion below
   Jurisdiction
   Statement
   Argument
   Conclusion

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. C1-C23) is reported
at 818 F.2d 1114.  A prior opinion of the court of appeals (Pet. App.
B3-B27) is unreported.  A prior opinion of the district court is
reported at 582 F. Supp. 1319.

                             JURISDICTION

   The judgment of the court of appeals was entered on May 19, 1987.
The petition for a writ of certiorari was filed on July 6, 1987.  The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether the road deputies to the Sheriff of Patrick County,
Virginia, are "personal staff" within the meaning of 42 U.S.C.
2000e(f) and thus outside the protections of Title VII of the Civil
Rights Act of 1964.

                               STATEMENT

   1. Patrick County is a sparsely populated, rural county consisting
of approximately 469 square miles in southwest Virginia (Pet. App. C4;
 582 F. Supp. at 1320).  Pursuant to Virginia statute, the Sheriff of
Patrick County is elected by the citizens of the county to serve a
four-year term (ibid.).  The Sheriff employs 22 individuals, eighteen
of whom are "sworn officers" or deputies (Pet. App. B12-B13, C4;  582
F. Supp. at 1320).  The Sheriff certifies the job title and duties of
each of his employees to the Virginia Compensation Board, which
determines the number and salaries of full-time employees that the
Commonwealth will fund for the Sheriff (id. at 1321).  /1/ Under
Virginia law, the actual selection of deputies is within the
discretion of the Sheriff (subject to minimum state standards);  /2/
the deputies' terms of employment are co-extensive with the Sheriff's
term in office and, during that period, they serve at his will (Pet.
App. B6-B7;  582 F. Supp. at 1320-1321).  /3/

   Among the "sworn officers" or deputies employed by the Sheriff are
four so-called "road deputies" (Pet. App. C4;  582 F. Supp. at 1320).
/4/ According to the district court, these road deputies patrol the
county, respond to calls by the public for assistance, enforce the
traffic laws, make arrests, and transport prisoners to and from court,
jail, and prison (Pet. App. B13-B14;  582 F. Supp. at 1321-1322,
1325).  The road deputies report to their shift supervisors;  they
report to the sheriff only if their supervisor is not available (C.A.
App. 22-23, 128-129).  No woman has ever held a road deputy position
(Pet. App. A4).

   2. The United States initiated this action on June 29, 1983,
alleging, among other things, that the Sheriff of Patrick County has
discriminated on the basis of sex against applicants for the road
deputy positions in violation of 42 U.S.C. 2000e et seq. (Pet. App.
A2, B3, C5-C6).  After a three-day trial, the district court directed
a verdict for the Sheriff, holding that the positions from which
females allegedly have been excluded are part of the Sheriff's
"personal staff" within the meaning of 42 U.S.C. 2000e(f) and thus are
not protected by Title VII (582 F. Supp. at 1325).  While the appeal
of this decision was pending, the Fourth Circuit addressed the meaning
of the "personal staff" exemption and concluded that it was not
applicable to deputy sheriffs in a county in North Carolina.  See Curl
v. Reavis, 740 F.2d 1323 (1984).  Accordingly, the instant action was
remanded for reconsideration by the district court in light of the
Fourth Circuit's recent decision (Pet. App. A1-A7).

   On remand, the district court again concluded that the road deputy
positions fit within Title VII's "personal staff" exemption (Pet. App.
B3-B27).  It first notes that, according to the Fourth Circuit's
decision in Curl, the "plaintiff's status as an employee under Title
VII (is) a question of federal law" and that "state law (is) relevant
(only) in defining and describing the plaintiff's position, her
duties, and the way she was hired, supervised, and fired" (id. at
B7-B8).  It then noted that 'the determination of whether a position
on the sheriff's staff falls within the personal staff exemption must
be made on a case-by-case basis" and must involve an analysis of "both
the legal relationship and the actual (factual) relationship of the
sheriff to the particular position and person who occupies it" (id. at
B11).  Finally, it held that "the four road deputies fall within the
personal staff exemption," noting that "(i)t is the road deputy who is
the alter-ego and personification of the sheriff in the geographical
area to which he is assigned," and that the road deputies "are the
eyes and ears of the sheriff, not only for matters which fall within
their official sphere(,) but also as to matters political" (id. at
B13-B14).  /5/

   3. The court of appeals reversed (Pet. App. C1-C23).  It first
noted that "Title VII defines the term 'employee' as:  'an individual
employed by an employer, except that the term 'employee' shall not
include any person elected to public office * * * or any person chosen
by such officer to be on such officer's personal staff, or an
appointee on the policy making level or an immediate adviser with
respect to the exercise of the constitutional or legal powers of the
office * * * '" (id. at C10, quoting 42 U.S.C. 2000e(f).  It further
noted that, in Curl, it had said that the question whether a position
fits within the "personal staff" exemption is "one of federal law,
with state law relevant only insofar as it describes the plaintiff's
position, including his duties and the manner in which he is hired,
supervised, and fired" (Pet. App. C11).  It then reviewed the factors
that it had considered in Curl, including the intimate or sensitive
nature of the position and whether or not it is under the personal
direction of the elected official (id. at C12).  Finally, "(b)ased on
(its) examination of the multiple features of the relationship between
the sheriff of Patrick County and his deputies," the court concluded
that it could not "say as a matter of law that the deputy positions
fall() within the personal staff exception to the coverage of Title
VII" (id. at C14).

   The court stressed (Pet. App. C14-C15) that "(t)he road deputies in
Patrick County function primarily as typical policemen who administer
the laws and the 'policies' of their superiors," that "(t)here is no
evidence that the road deputies are called upon to render advice to
the sheriff respecting his policy decisions or the proper exercise of
his powers," and that "(t)he road deputy position in Patrick County is
not one high within the chain of command, nor do these road deputies
occupy a highly intimate and sensitive status vis-a-vis the sheriff."
While the court supposed that it "could assume that, with a small
deputy contingent;  the relationship between the deputies and the
sheriff might be close;" it nevertheless concluded that the Sheriff
"simply failed to show that the closeness has engendered a highly
intimate relationship which influences the making of policy" (id. at
C15).  Thus, it remanded the case for further proceedings on the
merits of the Title VII claims (id. at C15-C16).  /6/

                               ARGUMENT

   The decision below is correct.  It does not conflict with any
decision of this Court or any other court of appeals.  Accordingly,
review by this Court is not warranted.

   1. Petitioner first contends (Pet. 11-16) that there is "conflict
and confusion among the circuits" concerning whether the scope of the
"personal staff" exemption is a question of federal or state law.
But, like both the district court and the court below (see Pet. App.
B7-B8, C11), the courts of appeals uniformly have held that the
determination whether an individual is a member of an elected
official's "personal staff," within the meaning of 42 U.S.C. 2000e(f),
is a question of federal law.  See, e.g., Teneyuca v. Bexar County,
767 F.2d 148, 150 (5th Cir. 1985);  Owens v. Rush, 654 F.2d 1370, 1375
(10th Cir. 1981);  cf. EEOC v. Reno, 758 F.2d 581, 584 (11th Cir.
1985) (construing "personal staff" exemption in Age Discrimination in
Employment Act).  These courts have said that "(s)tate law is relevant
(only) insofar as it describes the plaintiff's position, including his
duties and the way he is hired, supervised, and fired" (Calderon v.
Martin County, 639 F.2d 271, 273 (5th Cir. 1981).  Accord, Owens v.
Rush, 654 F.2d at 1375;  Curl v. Reavis, 740 F.2d at 1327;  EEOC v.
Reno.  758 F.2d at 584.  The cases that petitioner cites (Pet. 12-15)
are not to the contrary.  /7/ Thus, there is no "conflict" or
"confusion" among the courts to clear up.

   2. Petitioner similarly errs in suggesting (Pet. 16-19) that the
court below limited the "personal staff" exemption to those deputies
who both enjoy an intimate relationship with the Sheriff and influence
his policies.  The court below imposed no such rigid limitations on
the "personal staff" exemption's applicability.  To be sure, in
assessing whether the "personal staff" exemption applied in this case,
the court examined the intimacy of the relationship between the
Sheriff and his deputies and the influence that those deputies have
had on the Sheriff's policies.  See Pet. App. C14-C16.  But the court
did not suggest that affirmative findings with respect to both of
these factors are necessary conditions of a "personal staff"
relationship.  Rather, these were just two of the "multiple features
of the relationship between the sheriff of Patrick County and his
deputies" that the court examined in order to determine whether any of
the indicia of "personal staff" are applicable to the road deputies of
Patrick County.  Its discussion of those relevant indicia (id. at
C14-C15) makes clear that none of them are present.  /8/

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   WM. BRADFORD REYNOLDS

      Assistant Attorney General

   JESSICA DUNSAY SILVER

   MIRIAM R. EISENSTEIN

      Attorneys

   AUGUST 1987

   /1/ While the Sheriff retains discretion to hire additional
employees and to pay them with local funds, he thus far has not chosen
to do so (C.A. App. 24-25, 134-135).

   /2/ Under Virginia law, a deputy sheriff must be a United States
citizen, have a high school diploma or its equivalent, have a driver's
license, pass a physical examination, and successfully complete a
training course within one year of hire (582 F. Supp. at 1320-1321).
Individual sheriffs may add to these requirements (id. at 1321).
Petitioner's precedessor in office, Sheriff Williams, required
applicants to pass a written test and considered the test score as one
of a number of factors in determining whom to hire (C.A. App. 78,
80-81).  In addition, he subjected all potential deputies to a
background investigation (C.A. App. 111-119).  During the period
between petitioner's assumption of office on January 1, 1984, and the
time of his testimony in this case, petitioner required only that
applicants satisfy the minimum state employment standards (C.A. App.
277-278).

   /3/ While Virginia law provides that a deputy's term technically
ends with that of the Sheriff's term in office, recent sheriffs of
Patrick County have not replaced their predecessors' deputies on a
wholesale basis (C.A. App. 67, 71, 139-145).

   /4/ Also employed as deputies were "two investigators, two
supervisors, two court security officers, five correctional officers,
one process server, and two 'clerk-steno' matrons" (Pet. App. C4).

   /5/ Since "the job of supervisor and investigator * * * require
prior experience as a road deputy," the district court held that these
positions are also within the "personal staff" exemption (Pet. App.
B14).  By contrast, it held that the positions of correctional officer
and courtroom deputy are not within the "personal staff" exemption,
though it found that being male is a "bona fide occupational
qualification" for the correctional officer position (id. at B14-B17,
B19-B20).  Finally, it found that there had been no prima facie
showing of discrimination made with respect to the position of process
server (id. at B17-B18).

   /6/ Because the individual-plaintiffs "only applied for the
position of road deputy, and because they could not have applied for
the positions of supervisor and investigator," the court declined "to
decide whether the positions of investigator and supervisor fall
within the personal staff exception to Title VII" (Pet. App. C16 n.3).
 It did, however, reverse the district court's determination that
being male is a "bona fide occupational qualification" for the
correctional officer position (id. at C16-C18).

   /7/ In Ramirez v. San Mateo County, 639 F.2d 509, 513, (9th Cir.
1981), the court held that a deputy district attorney's high place in
the chain of command and sensitive and intimate relationship with the
district attorney rendered that deputy district attorney part of the
"personal staff" of the district attorney and outside of the
protection of Title VII;  nothing in the opinion in the case suggests
that the applicability of the "personal staff" exemption turns on any
particular question of state law.  The same statement is true of the
opinions in Wall v. Coleman, 393 F. Supp. 826, 827-831 (S.D. Ga. 1975)
(assistant district attorney who served at district attorney's
pleasure, who performed the same duties as district attorney, and who
had intimate relationship with district attorney fit, within the
"personal staff" exemption), and Gearhart v. Oregon, 410 F. Supp. 597,
598-601 (D. Or. 1976) (nature of deputy legislative counsel's duties
and her relationship with elected officials rendered legislative
counsel an "immediate advisor" within meaning of 42 U.S.C. 2000e(f)).
Finally, while the opinion in Kyles v. Calcasieu Parish Sheriff's
Dep't, 395 F. Supp. 1307, 1310 (W.D. La. 1975), suggests that state
law may in some instances determine whether the "personal staff"
exemption applies, that opinion has clearly been superseded by
appellate decisions of the Fifth Circuit holding that the
applicability of the "personal staff" exemption is a question of
federal law.  See, e.g., Clark v. Tarrant County, 798 F.2d 736, 742
(1986);  Teneyuca v. Bexar County, 767 F.2d at 150;  Calderon v.
Martin County, 639 F.2d at 272-273.

   /8/ The other courts of appeals analyze the "personal staff"
question using similar criteria.  See, e.g., Teneyuca v. Bexar County,
767 F.2d at 150-153;  Owens v. Rush, 654 F.2d at 1375-1377;  Ramirez
v. San Mateo County, 639 F.2d at 511-513.