Goldsboro Christian Schools, Inc. v. United States Brief Amicus Curiae

    ORAL ARGUMENT SCHEDULED FOR NOVEMBER 21, 1989 

BRIEF FOR APPELLEES/RESPONDENTS

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Nos. 88-5264, 89-5137

YVONNE G. TROUT, ef a/,

V.

/^pellees/Respondents,

H. LAWRENCE GARRETT, III, Secretary of the Navy, etal, AppellantsiPetitioners.

Appeal From The United States District Court 
For The District of Coiumbla

PETITION FOR WRIT OF MANDAMUS

DANIEL A. REZNECK 
RONALD D. LEE 
ARNOLD & PORTER 
1200 New Hampshire Avenue 
Washington, D.C. 20036

BRADLEY G. MCDONALD 
JOHN F. KARL, JR.
MCDONALD & Ka r l
1919 Pennsylvania Avenue, N.W.
Washington, D. C. 20008

Co-Counsel for Respondent 
Honorable Harold H. Greene 
On Petition For Mandamus

Counsel For Plaintiffs/Appellees

C.A. No. 73-0055



CERTIFICATE

Parties and Amici

All parties are listed in the Brief of Appellants/ 
Petitioners.

We have been advised that the Washington Lawyers Committee 
for Civil Rights Under Law will move for leave to file a brief as 
Amicus Curiae.

Ruling Under Review

References to the Rulings below appear in the Brief of 
Appellants/Petitioners.

Related Cases

There are no related cases apart from those listed in 
Appellants' Brief.

-  1 .  -



INDEX
Page

COUNTERSTATEMENT OF C A S E ................................... 1
A. Introduction ..............................  1
B. The Trout C a s e ............................... 3

1 ............................................. 4
2 ............................................. 5

C. Subsequent History And Current
Status of The Trout Case . . . . .............. 8

D. The Fee Application And The Present Appeal . 13
SUMMARY OF THE ARGUMENT.................................... 18
A R G U M E N T .................................................. 19

I. THIS COURT ARGUABLY HAS JURISDICTION
OVER THE A P P E A L .................................. 19
A. No Final Decision............................20
B. No Appealable Interlocutory Order ......... 20
C. The Collateral Order Doctrine ..............  21

II. DESPITE ITS EXTRAORDINARY NATURE, REVIEW
BY MANDAMUS MAY BE WARRANTED IN THIS 
CASE IF THIS COURT HOLDS THAT APPELLATE 
JURISDICTION IS LACKING ........................  25
A. Introduction................................25
B. Traditional Mandamus ......................  27
C. Supervisory Mandamus ......................  29
D. Advisory Mandamus ..........................  30

III. THE JUDGMENT FUND STATUTE DOES NOT BAR
PAYMENT OF F E E S .................................. 32
A. Defendants' Arguments Have Been Rejected

By Every Court Which Considered Them . . . .  32
B. Title VII Is A Waiver Of Sovereign Immunity . 35

1 1 .  -



C. The Award Here In Question Is Not Technically 
An Interim Award In Any Event, But Rather
An Initial Award For Final Portions Of 
Successful Litigation ..................... 40

D. Circuit Law Clearly Authorizes The
District Court's Fee Award ...............  41

IV. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION
IN MAKING THE FEE AWARD IN THIS C A S E ............... 42
A.  42
B.  44
C.   45
D.  47

V. CONCLUSION........................................ 49

1 1 1 . -



TABLE OF AUTHORITIES

Page

Allen V. Department of Defense  ̂ 713 F.Supp. 7
(D.D.C. 1989) ........................................  27
ANR Pipeline v. FERC, 870 F.2d 712 (D.C. Cir. 1989) . . 35
Ayuda v. Thornburgh, No. 88-0265 (D.D.C.
Apr. 4, 1989)........................................  28
Bachowski v. Usery, 545 F.2d 363 (3rd Cir. 1976) . . .  21
Bankers Life & Casualty Co. v. Holland,
346 U.S. 379 (1953)..................................  27
Baskin v. Hawley, 810 F.2d 370 (2d Cir. 1987) ........  19
Bauman v. United States District Court,
557 F.2d 650 (9th Cir. 1977) ........................  26
Bazemore v. Friday, 478 U.S. 385 (1986)..............  11
Biberman v. Federal Bureau of Investigation,
496 F.Supp. 263 (S.D.N.Y. 1980)......................  28

Blum V. Stenson, 465 U.S. 886 (1984) ................  42
Bradley v. School Board of Richmond,
416 U.S. 696 (1974).................................. ...
Brown V. Marsh, 707 F.Supp. 21 (D.D.C. 1989) ........  27, 31,

40
Budinich v. Becton Dickenson & Co.,
108 S.Ct. 1717 (1988)................................  23
Carson v. American Brands, Inc., 450 U.S. 79 (1981) . . 21
Cohen v. Beneficial Industrial Loan Corp.,
337 U.S. 541 (1949)..................................  21
Colonial Times v. Gasch, 509 F.2d 517
(D.C. Cir. 1975)   31
Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978) . . .  22
Copeland v. Marshall, 641 F.2d 880
(D.C. Cir. 1980) (en banc) .......................... 42

- IV. -



Crowley Caribbean Transport, Inc, v. United States,
865 F.2d 1281 (D.C. Cir. 1989) ......................  36
Dardar v. LaFourche Realty Co . , 849 F.2d 955
(5th Cir. 1988)......................................  19
Electrical District No, 1 v, F.E.R.C.,
813 F.2d 1246 (D.C. Cir. 1989) ......................  35
Founding Church of Scientology v. Webster,
802 F.2d 1448 (D.C. Cir. 1986), cert, denied,
108 S.Ct. 199 (1987)   47
Grubbs V. Butz, 548 F.2d 973 (D.C. Cir. 1976) .........  37
Hanrahan v. Hampton, 446 U.S. 754 (1980) . ,.........  39
Hastings v. Maine-Endwell Central School District,
676 F.2d 893 (2d Cir. 1982)..........................  19
Hensley v. Eckerhart, 461 U.S. 424 (1983)............  42
In re Attorney General of the United States,
596 F.2d 58 (2d Cir.), cert, denied,444 U.S. 903 (1979)................................... 31
In re Equal Opportunity Commission, 709 F.2d 392
(5th Cir. 1983)....................................... 31
In re Halkin, 598 F.2d 176 (D.C. Cir. 1979)..........  25, 27
In re; Sealed Case, 856 F.2d 268 (D.C. Cir. 1988) . . 47
In re Thornburgh, 869 F.2d 1503 (D.C. Cir. 1989) . . . 25, 27

28-29
In re United States, 872 F.2d 472 (D.C. Cir. 1979) . . 25, 27,

29, 30- 
31

In re Von Bulow, 828 F.2d 94 (2d Cir. 1987)..........  31
International Brotherhood of Teamsters v. United
States, 431 U.S. 324 (1977)..........................  11
James v. Stockham Valves & Fittings, 559 F.2d 310
(5th Cir. 1977), cert, denied, 434U.S. 1034 (1978) . . 37
Jones V. Lujan, ___ F.2d ___ , 1989 WL 70484, Slip Op.
(D.C. Cir. June 30, 1989)............................  38
Jordan v. United States Department of Justice,
691 F.2d 514 (D.C. Cir. 1982)........................  43

-  V .  -



* Jurgens v. Equal Employment Opportunity Commission, 
660 F.Supp. 1097 (N.D. Tex. 1987) ................

Kyles V. Secretary of Agriculture, 
604 F.Supp. 426 (D.D.C. 1985) . .
La Buy v. Howes Leather Co., 352 U.S. 249 (1957) . .
Lac Courte Oreilles Band of Lake Superior Chippewa 
Indians v. Wisconsin, 829 F.2d 601 (7th Cir. 1987)
Lehman v. Trout, 465 U.S. 1056 (1984) ..............

* Library of Congress v. Shaw, 478 U.S. 310 (1986) . .
* McKenzie v. Kennickell, 669 F.Supp. 529 (D.D.C. 1987)

Missouri v. Jenkins, 109 S.Ct. 2463 (1989) 
Mitchell V. Forsyth, 472 U.S. 511 (1985)
Morgan v. District-of Columbia, 824 F.2d 1049 
(D.C. Cir. 1987) ..........................

Morrow V. District of Columbia, 417 F.2d 728 
(D.C. Cir. 1969) ........................ .
Mortensen v. United States, 877 F.2d. 50 
(Fed. Cir. 1989) .................... .

* National Association of Concerned Veterans v.
Secretary of Defense, 675 F.2d 1319 (D.C. Cir. 1982)

27, 33- 
34, 38

28
29

23 
10
37, 40
27, 28 
31, 40, 42
37
24

42-43
47

31

19

18, 41,
42-43,
45-46

National Right to Work Legal Defense v. Richey,
510 F.2d 1239 (D.C. Cir.), cert, denied,422 U.S. 1008 (1975) . . . . . . . . ................. 29, 31
National Wildlife Federation v. Hanson,
859 F.2d 313 (4th Cir. 1988) ........................  48
NORML V. Mullen, 828 F.2d 536 (9th Cir. 1987) ........  35
Occidental Petroleum Corp. v. Securities Exchange 
Commission, 873 F.2d 325 (D.C. Cir. 1989)............  21

- VI . -



Palmer v. City of Chicago, 806 F.2d 1316 
(7th Cir. 1986) .......................................................... 23
Palmer v. Schultz, 679 F.Supp. 68 (D.D.C. 1988) . . . .  31

* Parker v. Lewis, 670 F.2d 249 (D.C. Cir. 1981) . . . .  18, 28,
29-30, 41, 44- 
46, 48- 49

Powell V. Department of Justice. 569 F.Sunn 11Q7
(N.D. Cal. 1983) .................................... 28
Richardson-Merrell, Inc. v. Roller,
472 U.S. 424 (1985) ........ ............22

* Rosenfeld v. United States, 859 F.2d 717 (1988)(9th Cir. 1988).......................................^

25-27
33-34

Schlagenhauf v. Holder, 379 U.S. 104 (1964)..........  27, 31
Shipes V. Trinity Industries, Inc., 883 F.2d 955,(5th Cir. 1989)..........................................
Societe Nationale Industrielle Aerospatiale,
782 F.2d 120 (8th Cir. 1986), vacated on othergrounds, 482 U.S. 522 (1987)    31
Stoddard v. Board of Governors of the Federal
Reserve System, 868 F.2d 1308 (D.C. Cir. . . . .  35
Stringfellow v. Concerned Neighbors in Action,
480 U.S. 370 (1987)........ .. ' i . . .  ...........20-21,

24
Switzerland Cheese Ass'n v. E. Horne's Market,
385 U.S. 23 (1966)     21
Tarpley v. Greene, 684 F.2d 16 (D.C. Cir. 1982) . . . .  46
Texas State Teachers Assn, v. Garland Independent
School District, 109 S.Ct. 1486 (1989> . . . . . . . .  39
Trout V. Ball, App. No. 88-5264 (D.C. Cir.
Mar. 30, 1989), vacated sub. nom., Trout v. Lehman,App. No. 88-5264"'(t).0. Cir.' Aug. 247~'I989) . . . . . . 19

- V I 1. -



Trout V. Ball, App. No. 73-0055 (D.D.C. 
June 2, 1989) Memorandum and Order . .
Trout V. Ball, 705 F.Supp. 705 (D.D.C. 1989)
Trout V. Ball, 652 F.Supp. 144 (D.D.C. 1986)
Trout V. Hidalgo, 517 F.Supp. 873 (D.D.C. 1981)
Trout V. Lehman, C.A. No. 88-5264 (D.C. Cir. 
Aug. 24, 1989) Order ........................
Trout V. Lehman, 702 F.Supp. 3 (D.D.C. 1988) . . ,
Trout V. Lehman, 702 F.2d 1094 (D.D.C. 1983) . . ,
Turtle V. Institute for Resource Management, Inc., 
475 F.2d 925, 925-26 (D.C. Cir. 1973).......... .
Twist V. Meese, 854 F.2d 1421 (D.C. Cir. 1988) . .
United States v. United States District Court 
for the Eastern District of Michigan, 444 F.2d 651 
(6th Cir. 1971), aff'd, 407 U.S. 297 (1972) . . . ,
Webster v. Sowders, 846 F.2d 900 (6th Cir. 1988)
White V. New Hampshire Dep't of Employment 
Security, 455 U.S. 445 (1982) ................
Will V. United States, 389 U.S. 90 (1967)
Yakowicz v. Pennsylvania, 683 F.2d 778 
(3rd Cir. 1982) ........................

26, 41 
3, 12 

11 
8

30 
16
9-10

20

46

31 
23

23
29

19

OTHER REFERENCES
Opinion of the Comptroller General,
62 Comp. Gen. 239 (1983) ............................  35
Opinion of the Comptroller General,
62 Comp. Gen. 692 (1983) ............................  35
Comptroller General Unpublished Opinion B-199291,
Westlaw Slip Op. (June 19, 1981) .................... 35

- v i i i . -



Green, M.D., From Here to Attorney's Fees;
Certainty, Efficiency, and Fairness in the Journey to the Appellate Courts,
69 Cornell L. Rev. 207 ..............................  23
C. Wright & A. Miller, Federal Practice and Procedure:
Civil § 2692 (1973)..................................  21

S. Rep. No. 92-415 (1971)............................  36
S. Rep No. 94-1011 (1976)...........................  38

28 U.S.C. § 1 2 9 1 ...................................... 19, 20
28 U.S.C. § 1292 (a) (1) .................. ............20
28 U.S.C. § 2414   28, 33

39, 40
31 U.S.C. § 1304 (a).................................. 33, 35

39, 40
42 U.S.C. § 1988   37
42 U.S.C. § 2000e-(5) (f) (15)   2

* 42 U.S.C. § 2000e-5(k)  36

Authorities chiefly relied upon are marked with an asterisk,

- I X . -



ORAL ARGUMENT SCHEDULED FOR NOVEMBER 21, 1989
UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Nos. 88-5264, 89-5137

YVONNE TROUT, e_t £l. ,
V.

H. LAWRENCE GARRETT, III, Secretary 
of the Navy, et al.,

Appellees/Respondents,

Appellants/Petitioners.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 

C.A. NO. 73-55

PETITION FOR WRIT OF MANDAMUS

BRIEF FOR APPELLEES/RESPONDENTS

COUNTERSTATEMENT OF CASE

A. Introduction

In March 1972, Congress passed the Equal Employment Oppor­
tunity Act amending the Civil Rights Act of 1964. For the first 
time. Congress prohibited the executive branch of the United 
States government from discriminating against federal employees 
in any aspect of employment on the basis of race, religion, or 
sex.



-  2 .  -

Discrimination in such employment had long been prohibited 
by Executive Order, but the rights of federal employees to en­
force such prohibitions in the judicial system were far from 
clear. In enacting the Equal Employment Opportunity Act, Con­
gress underscored its concerns about the importance of this na­
tional public policy by stating that cases brought under this 
statute shall be set "for hearing at the earliest practicable 
date" and that "such cases be in every way expedited." 42 U.S.C. 
§ 2000e- (5) (f) (15) .

The legislative history of Title VII of the Act makes it 
abundantly clear that the statutory extension of Title VII poli­
cies and procedures to protect the "most precious rights of indi­
viduals" employed by the federal government arose out of congres­
sional dissatisfaction with government-wide employment and promo­
tion procedures which had resulted in women and minorities being 
improperly excluded from upper-level management and senior career 
positions in the federal service. Congress, in extending Title 
VII to the federal government, also responded to this malaise by 
providing that the United States should be liable for costs (in­
cluding attorney's fees) "the same as a private person." This 
explicit waiver of the federal government's sovereign immunity in 
Title VII cases was an integral part of the Congressional policy 
to provide incentives for private enforcement of the rights cre­
ated by the Act.



- 3. -

B. The Trout Case

The present case has been pending for almost seventeen 
years. The District Court noted that this case "is a textbook 
example of how litigation tactics are sometimes employed by the 
government to delay the grant of relief to aggrieved citizens for 
a truly scandalous period of time. . . . The case was filed in 
1973, sixteen years ago. As such, it is by far the oldest case 
on this Court's calendar." Trout v. Ball, 705 F.Supp. 705, 706 
(D.D.C. 1989). In all that time, counsel for plaintiffs (appel­
lees here) have not received one penny in attorney's fees or 
costs from defendants.

Shortly after passage of the Equal Employment Opportunity 
Act in 1972, counsel was contacted by appellee Yvonne G. Trout 
concerning employment discrimination in job assignments and pro­
motions at the Naval Command System Support Activity (NAVCOSSACT) 
located at the Washington Navy Yard, Washington, D.C. The mis­
sion of NAVCOSSACT was to provide computer services and support 
systems at the Secretary of the Navy level for the Department of 
the Navy.

By its very nature, NAVCOSSACT required minimal specialized 
skills of its career professional employees; its career profes­
sional employees were largely computer systems analysts, program­
mers, and mathematicians.



- 4. -

As the evidence at trial established, over an extended per-
1/iod of years NAVCOSSACT/NARDAC had no difficulty in filling 

entry level positions with female professionals who possessed the 
minimum objective skills for promotion to the career professional 
job series. One would therefore logically expect that, in the 
absence of bias or prejudice in training, assignments, and promo­
tions, men and women would with the passage of time be equally 
represented at upper grade levels and in management positions. 
Unfortunately, over the last decade and a half, such has not 
occurred.

1 .

When Yvonne Trout approached counsel in March of 1972, she 
was a senior GS-13 computer systems analyst at NAVCOSSACT. She 
had formerly been an officer in the United States Army, rising to 
the rank of Captain in the Army Reserves, possessed an extremely 
high I.Q., and had always received highly satisfactory annual 
performance evaluations. Other than the fact that her male su­
pervisors on occasion found her somewhat demanding, she was an
exemplary career federal employee performing valuable services

1/for her country and her employer.

_iy In 1977, NAVCOSSACT was reorganized into Naval Regional Data 
Automation System (NAVCOSSACT/NARDAC).

After preliminary investigation, counsel, who had consider­
able experience in civil litigation matters in the District of Columbia courts, advised Yvonne Trout that, based upon the exist­
ing court dockets, the entire matter should be disposed of within 
two to three years.



- 5. -

Clara Perlingiero also filed an administrative complaint 
alleging sex discrimination; she subsequently intervened individ­
ually and as a class representative. Ms. Perlingiero was a sen­
ior career professional, impacted at the GS-12 level, who was 
also performing her duties in a highly satisfactory manner. She 
was a former naval officer and had risen to the rank of Captain 
in the Naval Reserve.

2 .

In June 1972, plaintiffs filed an administrative class com­
plaint, alleging discrimination against female professional em­
ployees in all aspects of their employment, including hiring, 
promotions, training, and supervisory assignments. The present 
lawsuit was commenced six months later, in January 1973. The 
suit was originally assigned to the Honorable Joseph W. Waddy, 
now deceased, and subsequently transferred to the Honorable 
Harold H. Greene.

Prior to commencement of trial in June 1980, some nineteen 
days were spent in taking depositions of key officials. Exten­
sive pretrial proceedings resulted in a ninety-page pretrial 
order in which defendants stipulated to having engaged in dis­
criminatory and unlawful employment practices.



-  6 . -

The trial lasted for two weeks. The Court heard testimony 
from more than 42 witnesses and received into evidence in excess 
of seven thousand pages of exhibits.

The voluminous evidence established appellants' continuing 
and pervasive violation of the employment rights of female pro­
fessional employees. At the time Yvonne Trout filed her com­
plaint, the practice of the NAVCOSSACT commanding officer, a 
career naval captain, in handling complaints of sex discrimina­
tion was simply to deny them without investigation as "not being 
within the purview of the regulations." It was necessary for 
Yvonne Trout to appeal twice to the Secretary of Navy simply to 
have her complaint administratively accepted.

The evidence established that NAVCOSSACT routinely and se­
cretly selected male professional employees for promotion to 
higher grade level positions. Vacancy announcements were not 
posted as required by non-discretionary merit promotion regula­
tions. The command was using a secret and unlawful technical 
evaluation system to further its discriminatory pattern of pref­
erential promotion of male professional employees. Former male 
military personnel with little or no background in computers were 
routinely hired at high grade levels to fill new or vacant posi­
tions .



- 7. -

In the Pretrial Order ("PTO"), defendants stipulated to the
discriminatory results of the Navy's unlawful employment prac- 

3/tices. ~  In addition to extensive other evidence, plaintiffs 
presented at trial expert witness testimony concerning statisti­
cal regression analyses performed on employment data provided by 
defendants for each male and female professional employee at 
NAVCOSSACT/NARDAC for the period of time from 1970 through 1977.

_3/ During the period from 1970 through 1973, ninety percent of 
the new hires at the GS-9 level and above were males. One man 
and no women were hired at the GS-14 level (100% males); twenty 
men and no women were hired at the GS-13 level (100% males); 
eighteen men and one woman were hired at the GS-12 level (95% males); twenty-three men and three women were hired at the GS-11 
level (88% males). PTO at 42-44.

Promotions followed the same discriminatory pattern as new 
hires. During the period from 1970 through 1973, approximately 91.7 percent of the promotions at the GS-13 level and above went 
to males. One man was promoted to GS-15 (100% males); men re­
ceived eight of the nine promotions at the GS-15 level (89% 
males); twenty-four men and four women were promoted to GS-14 
(86% males); and at the GS-13 level, there were thirty-six promo­
tions with only two going to women (94% males). PTO at 42-44.

The EEOC investigation of the Trout class action complaint 
established that the average grade level for females above GS-7 
was GS-10.738 and for males GS-12.179. (NAVCOSSACT employees at 
the GS-7 level and below were not included in this calculation, 
even though women were heavily represented at the lower grade levels. If the women in the lower grade levels had been included 
in this calculation, the average grade level for women would have 
been even lower.) This difference in grade level represents an 
annual difference in compensation between men and women of 
$1,960.00. PTO at 45-46.

For the period from fiscal 1971 through fiscal 1974, the 
average grade at NAVCOSSACT for men was GS-12.23 and the average 
grade for women was GS-9.25. The average grade for the command 
was GS-11.44. PTO at 45-46.



-  8 . -

This expert testimony, accepted by the trial court, estab­
lished independently of the other evidence, by means of well- 
recognized statistical methodology, statistically significant 
differences in rates of pay for equally qualified male and female 
professional employees. These pay differences could only be ex­
plained as being caused by sex discrimination under statistical 
standards accepted by the United States Supreme Court.

In order to expedite trial, the Court limited the number of 
class members and others who could testify as witnesses. The 
Court found the individual testimony of sex discrimination by the 
eight representative class members to be highly persuasive.
Trout V. Hidalgo, 517 F.Supp. at 887.

In April 1981, Judge Greene entered the initial finding of 
class-wide discrimination against female professional employees 
on the basis of sex. On March 10, 1982, Judge Greene entered an 
order denying defendants' proffer of voluminous post-trial exhib­
its; the Court stated that the evidence was largely cumulative 
and that, in effect, defendants were seeking a second trial, a 
request which was not timely.

C. Subsequent History And Current Status Of The Trout Case

Defendants abruptly terminated the normal post-liability 
relief proceedings by immediately filing a notice of appeal to 
this Court. In preparing the record on appeal, defendants in­
cluded the post-trial exhibits which had been excluded from



- 9. -

4/evidence by Judge Greene's March 10, 1982 Order. These post­
trial exhibits had never been examined or responded to by plain­
tiffs. In their appellate brief, however, defendants relied 
heavily upon such excluded exhibits as if they were evidence 
admitted during the trial.

This resort to extra-record evidence had the effect of mis­
leading the appellate panel on the issue of defendants' responsi­
bility for discrimination in grade at initial hire. See Appendix 
A to the Brief.

_V This Court specifically affirmed the March 10, 1982 order, 
c’riticizing the government's efforts to reopen settled issues:

At some point litigation must come to an end, 
even though it is always possible to offer more evidence . . .  We find it extremely 
troublesome —  in light of the long and com­
plex history of this litigation and in light 
of Judge Greene's patient and thoughtful 
treatment of the case —  that the appellants would even propose that the trial court reopen 
and retry the matter. In the context of this 
case setting, such an adversarial tactic is 
irresponsible, insensitive to the extraordi­nary burdens faced by district courts already 
overloaded with heavy dockets and wasteful of precious resources of litigants and the judic­
iary.

Trout V. Lehman, 702 F.2d at 1106. This Court described the 
post-trial tactics of defendants as "an affront to the judicial 
system." Id. at 1107.



-  10.  -

In March 1983, this Court affirmed Judge Greene's finding of 
class-wide sex discrimination in promotions, while reversing the 
finding of defendants' responsibility for discrimination in grade 
at initial hire because the Court believed plaintiffs "did not 
seriously challenge defendants' contention that they had no con­
trol over grade at initial hire." Trout v. Lehman, 702 F.2d at 
1105.

Thereafter defendants petitioned the Supreme Court for cer­
tiorari. Defendants sought summary reversal of this Court and 
the District Court on the grounds that this Court, in reversing 
on the issue of liability for discrimination in grade at hire, 
may have also invalidated the trial court's reliance on the sta­
tistical regression analyses in finding class-wide sex discrimi­
nation in pay differences between male and female professional 
employees. The Supreme Court vacated this Court's affirmance of 
the 1981 finding of class-wide discrimination and remanded, with­
out ever looking at the trial record. Lehman v. Trout, 465 U.S. 
1056 (1986).

Justice Stevens prophetically stated in his dissent to the 
Supreme Court's Order;

The Court's action today encourages the kind 
of litigating strategy that gives the party 
with the greater resources a significant ad­
vantage unrelated to the merits of the case. 
The kind of casual command to begin anew that is reflected in today's order tends to under­
mine the ability of trial judges to exercise



-  11 .  -

firm control over the progress of litiga­
tion. Moreover, this action can only encour­
age parties to file more and more petitions asking this Court to engage in factual dis­
putes that we are not equipped to resolve effectively. 465 U.S. at 1061-1062 (Stevens, 
J ., dissenting).

Subsequent to its remand in Trout, the Supreme Court re­
versed the opinion .of the U.S. Court of Appeals for the Fourth 
Circuit in Bazemore v. Friday, 478 U.S. 385 (1986). In Bazemore, 
the Supreme Court expressly rejected the principal arguments 
which had been made by the Trout defendants in their attempt to 
challenge plaintiffs' statistical analyses.

On October 16, 1986, the District Court, relying on 
Bazemore, entered a second finding of class-wide sex discrimina­
tion in Trout. 652 F.Supp. 144. The matter was referred to a
Special Master for relief proceedings. Notice and Proof of Claim 
forms have been sent to 158 class members. Approximately 41 
class members have not been located; three are deceased. Of the 
remaining, some 93 have filed Proof of Claim forms. The parties 
have filed cross motions for summary judgment on the issue of 
whether such class members have satisfied their initial burden of 
showing entitlement to relief under International Brotherhood of 
Teamsters v. United States, 431 U.S. 324, 361 (1977).



-  12 . -

Judge Greene has observed:

At a time when even the most backward private 
employers have accepted the principle that 
discrimination against women is both legally 
invalid and morally reprehensible, the Depart­
ments of Justice and of the Navy keep engaging 
in the most transparent dilatory maneuvers to 
avoid or postpone rectifying what has been 
done to this class of women.

705 F.Supp. at 706.

The individual cases of Clara Perlingiero and Marie Louise 
Bach are final. Following appeal, the government specifically 
conceded in Consent Orders terminating the Perlingiero and Bach 
cases that plaintiffs were immediately entitled to payment of 
reasonable attorney's fees and costs. See Consent Orders dated 
April 25, July 27, and July 20, 1984. App. I at 82-97.

Portions of the class litigation occuring prior to December 
12, 1973 are also final, insofar as defendants renounced their 
use of their unlawful secret technical evaluation system, recog­
nized the applicability of mandatory merit promotion regulations, 
and began posting merit promotion vacancy announcements. App. at 
114-120. In addition, portions of the litigation prior to Janu­
ary 21, 1974 are final to the extent that plaintiffs Yvonne Trout 
and Clara Perlingiero received retroactive promotions on that 
date. Defendants concede that plaintiffs are "prevailing par­
ties" with respect to all these portions of the litigation.



- 13. -

D. The Fee Application And The Present Appeal

Defendants, in the present appeal and mandamus petition, 
challenge an initial award by the District Court of $276,044 in 
attorney's fees and $15,434.01 in costs. That award occurred as 
follows:

On February 20, 1987, plaintiffs' counsel submitted a first 
fee request for $643,000 in connection with litigation which had 
then been pending in court for over fourteen years. The fee 
request, which is included in its entirety in the record on ap­
peal, consisted of two volumes. Appendix, Vols. I and II.

The request detailed in narrative form daily time entries 
for each of the five attorneys seeking an initial payment for 
professional services rendered. Affidavits for counsel set forth 
relevant background, education, professional qualifications, and 
customary billing rates. In addition, counsel provided detailed 
responses to defendants' interrogatories and requests for produc­
tion of documents. Appendix, Volumes III and IV.

The fee application contained specific allocation of attor­
ney time to seven phases of the litigation. Further, allocation 
of time was made with respect to final and nonfinal class action 
issues and to prevailing and non-prevailing individual cases.

In this initial application, plaintiffs' counsel did not 
seek payment for approximately 60 percent of their time, which 
counsel believed was properly allocable to the non-final class



- 14. -

action portions of the litigation or which was arguably noncom- 
pensable.

After defendants opposed this initial fee request of 
$643,000 and sought burdensome and irrelevant discovery covering 
client files dated as far back as 1972, plaintiffs' counsel sub­
mitted a second request for immediate payment. This request was 
limited to those attorney hours allocable to the portions of the 
litigation which had become final, to be awarded at counsel's 
minimum historical rates.

This second request was for immediate payment of a minimum 
award which defendants could not legitimately challenge. More­
over, the payments sought were not in actuality "interim fee 
awards." They were really minimum payments then properly due and 
owing for the portions of the litigation already completed.

Defendants did not and do not deny that the portions of the 
litigation in question for which fees were sought were final. 
Defendants below did not challenge any of the time allocations. 
Defendants did not at any time assert that the hours recorded 
were unreasonable or unnecessary or that the minimum historic 
hourly rates charged by counsel were excessive or above the pre­
vailing market rate. Nowhere in their brief on appeal or before 
the District Court did defendants point to a single time entry on 
any of the many days in the years of litigation which was unrea­
sonably spent on the prevailing issues or improperly allocated to 
portions of the litigation which had become final.



- 15. -

For example, plaintiffs' counsel seeks compensation for 685 
hours of legal services performed prior to January 1974, in con­
nection with the successful portions of the litigation which 
caused defendants to discontinue some of their unlawful personnel 
practices, legal efforts which led to retroactive promotions to 
GS-14 for Yvonne Trout and GS-13 for Clara Perlingiero, and for 
services rendered in the Perlingiero and Bach cases. Defendants 
concede that plaintiffs are "prevailing parties" with respect to 
the issues on which legal services were rendered to plaintiffs 
Yvonne Trout, Clara Perlingiero, and Marie Bach through January 
1974, and for services rendered on behalf of the class through 
December 1973.

In awarding initial fees and costs in its Order of August 5, 
1988, District Court correctly concluded:

Plaintiffs have moved for an order requiring 
immediate payment of the irreducible amount of 
attorney's fees and costs to which defendants 
do not raise specific, substantiated objec­
tion. Defendants primarily object to this 
request on the ground that this would be an 
interim fee award, the propriety of which is "vigorously disputed by the federal govern­
ment." The court sees no basis in law to deny plaintiff recovery of interim award payments, 
to the extent that they can be supported, 
merely because the opposing party disagrees 
with the notion of such payments. To the contrary, the propriety of interim payment 
awards in Title VII cases has been established by legal precedent and statutory construction, 
as discussed at length in McKenzie v. Kennickell, 
669 F.Supp. 529.



- 16. -

[D]espite plaintiffs' diligent attempts to 
have defendants identify the minimum irreduc­
ible amounts payable, no such response has 
been forthcoming. Surely defendants cannot 
seriously suggest that plaintiffs are entitled 
to no compensation for fees and costs whatso­
ever. In this context, it is not sufficient 
to simply state that some items are under dispute; fairness dictates that the amounts to 
which plaintiffs are plainly entitled be swiftly identified and awarded.
Defendants' failure to counter these asser­
tions, their failure to propose alternative minimum payment amounts, and their inaction 
over a period of more than five months in responding to plaintiffs' figures lends sup- 
port to the presumption of validity of these claims.

Trout V. Lehman, 702 F.Supp. 3, 5 (D.D.C. 1988) (emphasis added).

In its Order awarding attorney's fees, the District Court 
further ordered defendants to identify to the Court "the minimum 
undisputed amount of fees and costs remaining to be paid." 702 
F.Supp. at 4. Defendants have refused to do so, although they 
never sought a stay of this portion of the Order. In their ap­
peal, defendants continue to fail to identify any "minimum undis­
puted amount of fees and costs" for portions of the litigation 
they concede are final.

Defendants sought to appeal from the District Court's August 
5, 1988 Order. They initially raised the same sovereign immunity 
issue they now seek to raise in the petition for writ of man­
damus. Plaintiffs filed a motion for summary affirmance on the 
grounds that defendants' appeal was frivolous and for the purpose 
of delay.



- 17. -

In their response to plaintiffs' motion filed on October 21, 
1988, defendants entirely abandoned their contention that sover­
eign immunity bars an interim fee award. Defendants merely 
argued against summary disposition, stating that "the merits of 
this appeal are not so clear." Opposition To Appellees' Motion 
For Summary Affirmance at 1 (emphasis added).

Defendants at that time also failed to mention to this Court 
the just issued decision of the Ninth Circuit in Rosenfeld v. 
United States, 859 F.2d 717 (1988), decided on October 12, 1988, 
expressly rejecting defendants' present claims of sovereign im­
munity. ~  Defendants did not call Rosenfeld to this Court's at­
tention until after a panel of the Court sua sponte ordered de­
fendants to show cause why their appeal should not be dismissed.

On March 30, 1989, a panel of this Court consisting of 
Judges Mikva, Ruth B. Ginsburg, and Silberman dismissed the ap­
peal "for want of a final or otherwise appealable order." The 
panel stated, citing Rosenfeld;

We do not find any tenable argument for plac­
ing the district court's order within any 
exception to the firm final judgment rule 
operative in federal courts.

Only after the Order of Dismissal was entered, and almost a 
year after defendants' appeal in Trout was filed, did defendants 
file an extraordinary petition for writ of mandamus to the trial 
court and also belatedly seek a Rule 54(b) certification.

_5/ The same legal counsel in the same office of the Department 
of Justice were involved in the appeals in both Trout and 
Rosenfeld.



- 18. -

SUMMARY OF ARGUMENT

The Court has advisory mandamus jurisdiction to consider the 
single question of the District Court's authority to award inter­
im attorney's fees in a Title VII case against the government.
The Court arguably also has appellate jurisdiction under the 
"collateral orderdoctrine, although the weight of authority is 
that it does not.

If the merits of the appeal or mandamus petition are 
reached, it is clear that the Judgment Fund statute does not bar 
payment of attorney's fees. The Equal Employment Opportunity Act 
of 1972 waives sovereign immunity for the award of interim attor­
ney's fees in Title VII cases against the government. In any 
event, the government's Judgment Fund argument does not apply to 
the facts of this case because the portions of the litigation for 
which fees were awarded are final.

Pursuant to the rule of Parker v. Lewis, 670 F.2d 249, 256 
(D.C. Cir. 1981), the Judgment Fund argument also does not apply 
to this case because defendants did not contest plaintiffs' claim 
for fees, as required by National Association of Concerned Vete­
rans V. Secretary of Defense, 675 F.2d 1319 (D.C. Cir. 1982).

Further, the District Court did not abuse its discretion in 
denying defendants further discovery prior to awarding minimum 
irreducible attorney's fees at counsel's minimum historical 
rates.



- 19. -

ARGUMENT

I. THIS COURT ARGUABLY HAS JURISDICTION OVER THE APPEAL

A prior panel of this Court concluded, in its decision on 
March 30, 1989, that the government's appeal should be dismissed 
for want of a final or otherwise appealable order. The panel 
found that there was no tenable argument for placing the District 
Court's order within any exception to the final judgment rule. 
Trout V. Ball, App. No. 88-5264 (D.C. Cir. Mar. 30, 1989), 
vacated sub, nom. Trout v. Lehman, App. No. 88-5264 (D.C. Cir. 
Aug. 24, 1989). Many other Courts of Appeals have also held that 
an interim award of attorney's fees is not an appealable 
order. ~

The finality requirement of 28 U.S.C. § 1291 —  serves a 
number of important interests. As the Supreme Court recently 
noted:

A/ g•/ Baskin v. Hawley, 810 F.2d 370 (2d Cir. 1987); Shipes 
V. Trinity Industries, Inc., 883 F.2d 339 (5th Cir. 1989) (award 
of interim fees not final); Dardar v. LaFourche Realty Co., 849 
F.2d 955, 957 n.8 (5th Cir. T5W) (citing cases on both sides of 
the appealability issue); Rosenfeld v. United States, 859 F.2d at 
720-722 (award of interim fees under Freedom of Information Act 
not appealable where government failed to show it could not ulti­
mately obtain repayment); Yakowicz v. Pennsylvania. 683 F.2d 778, 782 (3rd Cir. 1982) (denial of interim fees not final); Hastings 
V. Maine-Endwell Central School District, 676 F.2d 893, 895 (2d 
Cir. 1982) (award of interim fees not final). See also 
Mortensen v. United States, 877 F.2d 50 (Fed. CiTT~1989) (order
imposing monetary discovery sanction against federal government not appealable).
2/ 28 U.S.C. § 1291 provides in relevant part: "The courts of
appeals . . . shall have jurisdiction of appeals from all final 
decisions of the district courts of the United States . . . ."



-  2 0 . -

Pretrial appeals may cause disruption, delay, 
and expense for the litigants; they also bur­
den appellate courts by requiring immediate 
consideration of issues that may become moot 
or irrelevant by the end of trial. In addi­
tion, the finality doctrine protects the 
strong interest in allowing trial judges to 
supervise pretrial and trial procedures with­
out undue interference . . . The judge's abil­
ity to conduct efficient and orderly trials 
would be frustrated, rather than furthered, by piecemeal review.

Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 380 
(1987) (citation omitted).

A. No Final Decision

F_irŝ , it is clear that Judge Greene's interim fee award is 
not a "final decision" under 28 U.S.C. § 1291, because the August 
5, 1988 Order did not end the litigation. See Turtle v. Insti­
tute for Resource Management, Inc., 475 F.2d 925, 925-26 (D.C.
Cir. 1973).

B. No Appealable Interlocutory Order

Second, the District Court's award of interim fees is not an 
interlocutory order that is appealable under 28 U.S.C. § 1292(a)(1) 
This section provides that the Courts of Appeals have jurisdic­
tion over "interlocutory orders . . . granting . . . injunc­
tions," but it does not apply to an order that simply restrains 
"the conduct of the parties or their counsel or directs them to



-  21. -

undertake some act . . . that is unrelated or only incidental to 
the substantive issues in the main action." C. Wright & A. 
Miller, Federal Practice and Procedure; Civil § 2692 at 622-23 
(1973) (emphasis added); Carson v. American Brands, Inc., 450 
U.S. 79, 84 (1981). See also Switzerland Cheese Ass'n v. E. 
Horne's Market, 385 U.S. 23, 25 (1966). An interim fee award is 
an order "incidental to the substantive issues in the main ac­
tion ."

C. The Collateral Order Doctrine

The August 5, 1988 Order entered is arguably appealable, if 
at all, under this Circuit's most recent interpretation of the 
collateral order doctrine. Occidental Petroleum Corp. v. Securi­
ties Exchange Commission, 873 F.2d 325, 332, 347 (D.C. Cir. 1989) 
(affirming an order remanding a case to the agency after finding 
the order appealable under the collateral order doctrine).

The collateral order exception was announced by the Supreme 
Court in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 
(1949) . In Cohen, the Court held that certain orders, while 
technically not final in the sense that they dispose of the 
merits of the litigation, may nonetheless be immediately appealed 
as of right. 337 U.S. at 545-547. See also Bachowski v. Usery, 
545 F.2d 363, 368, 370 (3rd Cir. 1976).



-  2 2 .  -

An appealable collateral order must: '"(i) conclusively 
determine the disputed question;" (ii) 'resolve an important 
issue completely separate from the merits of the action'; and 
(iii) 'be effectively unreviewable on appeal from a final judg­
ment.'" Stringfellow, 480 U.S. at 375 (quoting Coopers & Lybrand 
V. Livesay, 437 U.S. 463, 468 (1978)). The Court explained that 
the relevant inquiry under the third test is whether the putative 
appellant's interests "will be 'irretrievably lost in the absence 
of an immediate appeal.'" at 376 (quoting Richardson-
Merrell, Inc, v. Roller, 472 U.S. 424, 431 (1985)). Arguably, 
the District Court's decision meets all three Cohen tests, as 
explicated in Stringfellow.

(1) The District ’Court's initial award of minimum fees does 
not conclusively determine the claim for attorney's fees, even 
for the portion of the litigation for which defendants concede 
plaintiffs are prevailing parties. The government's discovery 
motions with respect to the major part of the February 1988 fee 
petition are still pending. The District Court awarded only the 
minimum undisputed fee and will rule at a later date on payment 
of the remainder of the lodestar and appropriate enhancements.



- 23. -

However, the District Court did conclusively reject the 
government's argument that the Judgment Fund statute is an over­
riding limitation on the government's waiver of sovereign immun­
ity in the Equal Employment Opportunity Act of 1972. The Court 
also rejected defendants' argument that sovereign immunity was 
not waived, since defendants had failed to file specific objec­
tions to plaintiffs' request. To that extent, this requirement 
of the collateral order doctrine may be met.

(2) It is also at least arguable that the District Court's 
award of attorney's fees is completely separate from the merits 
of the issues. See White v. New Hampshire Dep't of Employment 
Security, 455 U.S. 445, 452 (1982) (a postjudgment motion for 
attorney's fees under § 1988 was not a motion to amend or alter a 
judgment, governed by Rule 59(e), because an award of attorney's 
fees "is uniquely separable from the cause of action to be proved 
at trial"). See also Budinich v. Becton Dickenson & Co., 108 
S.Ct. 1717, 1722 (1988). Thus, the second requirement of the 
Cohen test may be met.

(3) The third prerequisite to interlocutory appeal appears 
the most problematic. An award of interim fees may be effec­
tively reviewed by appeal after final judgment is entered. The 
government has not alleged that, if it pays the fees to plaintiffs'



- 24. -

counsel now, it will be unable to recover them should the 
judgment of the District Court ultimately be reversed. ~

Ifistead, defendants claim that the government's sovereign 
immunity will be "irretrievably lost" in the absence of an immed­
iate appeal. Stringfellow, 480 U.S. at 376 (citation omitted). 
Although this interest is rather metaphysical to satisfy the 
third requirement of the collateral order doctrine, the Supreme 
Court has found orders denying a claim of absolute immunity ap­
pealable. E.g., Mitchell v. Forsyth, 472 U.S. 511, 525 (1985).
To the extent that the sovereign immunity issue in the abstract 
in the case of an interim fee award is unreviewable on appeal

8/ The government's claim "that an immediate appeal is necessary 
to protect the government's economic interests" is misplaced. 
Prior to the submission of this brief, the government had not 
alleged, let alone proven, an inability to recover fees from 
counsel should the award of attorney's fees be reversed on ap­
peal. There is, of course, no such "substantial risk" that de­
fendants would be unable to recoup this money from plaintiffs' counsel. Green, From Here to Attorney's Fees; Certainty, Effi­
ciency, and Fairness in the Journey to the Appellate Courts, 69 Cornell L. Rev. 207, 269-72 (arguing that interim fee awards 
should be appealable under Cohen where recoupment of fees in doubt).

Defendants' reliance on Palmer v. City of Chicago, 806 F.2d 
1316, 1320 (7th Cir. 1986), as constituting "almost identical circumstances," is puzzling. In Palmer, the Court found the in­
terim fee award appealable only because the district court di­rected the award to be paid to a "revolving fund" of prisoner 
plaintiffs. Id. See also Lac Courte Oreilles Band of Lake Su­
perior Chippewa Indians v. Wisconsin, 829 F.2d 601. 602 (7th Cir. 1987) (award of interim fees not final).

Defendants' reliance on Webster v. Sowders, 846 F.2d 900,
1032 (6th Cir. 1988), is similarly misplaced. Plaintiffs in Webster had not "prevailed as to the result of any judicial de­
termination of the 'substantial rights underlying their 
claim.'" Id. at 1037. Here, on the other hand, defendants do 
not dispute that plaintiffs are prevailing parties on a number of 
claims and issues.



- 25. -

from a final judgment, the third requirement of the collateral 
order test may therefore be met.

II. DESPITE ITS EXTRAORDINARY NATURE, REVIEW BY
MANDAMUS MAY BE WARRANTED IN THIS CASE IF THIS 
COURT HOLDS THAT APPELLATE JURISDICTION IS LACKING

Introduction

As this Court has recently observed, mandamus "is a drastic 
remedy." In re Thornburgh, 869 F.2d 1503, 1506 (D.C. Cir. 1989) 
(citing In re Halkin, 598 F.2d 176, 198 (D.C. Cir. 1979)). Al­
though mandamus is available only in extremely limited circum­
stances, this Court has over the years recognized three distinct 
forms of mandamus jurisdiction: traditional, supervisory, and 
advisory. See In re United States, 872 F.2d 472, 479 (D.C. Cir. 
1979) .

As we now show, two of these forms of mandamus —  tradi­
tional and supervisory —  are wholly inappropriate here. Plain­
tiffs and respondent Judge Greene, however, do not oppose the 
exercise of advisory mandamus jurisdiction solely to reach the 
legal issue whether the District Court may award interim, immedi­
ately payable attorney's fees against the government in a Title 
VII action. Indeed, in denying the government's motion for an 
entry of final judgment on the issue of interim attorney's fees 
pursuant to Fed. R. Civ. P. 54(b), Judge Greene stated: "The 
Court agrees with the decision of the Ninth Circuit in Rosenfeld 
[v. United States, 859 F.2d at 722-723] that mandamus is the



- 26. -

appropriate means for challenging the propriety of an award of 
attorney's fees." Trout v. Ball, Civ. Action No. 73-0055 (D.D.C. 
June 2, 1989) (Memorandum and Order).

In Rosenfeld, the Ninth Circuit exercised mandamus jurisdic­
tion to resolve the question whether an interim award of attor­
ney's fees under the Freedom of Information Act was barred by

9/sovereign immunity.

Accordingly, this Court should explicitly rest any mandamus 
review in this case upon the presence of new and important prob­
lems, or issues of law of first impression in this Circuit, which

9/  The Rosenfeld Court set forth five factors relevant to the 
decision whether to take mandamus jurisdiction. These factors 
correspond to various forms of mandamus jurisdiction, although 
the Ninth Court did not specify which of these factors justified 
it in taking mandamus:

(1) The party seeking the writ has no other adequate means, 
such as direct appeal, to attain the desired relief.

(2) The petitioner will be damaged or prejudiced in a way 
not correctable on appeal.

(3) The district court's order is clearly erroneous as a 
matter of law.

(4) The district court's order is an oft-repeated error, or 
manifests a persistent disregard of the federal rules.

(5) The district court's order raises new and important 
problems, or issues of law of first impression.

859 F.2d at 723 (citing Bauman v. United States District Court, 
557 F.2d 650, 654-655 (9th Cir. 1977)). The first three of these 
factors, which might justify traditional mandamus, are simply not present in this case. The fourth factor, which might be suffi­
cient to trigger supervisory mandamus, also does not describe the 
facts of this case. Only the fifth factor set forth in 
Rosenfeld, which courts have relied upon as a basis for advisory 
mandamus, arguably describes the factual situation here.



- 27. -

warrant an exercise of the Court's advisory mandamus jurisdic­
tion. See In re United States, 872 F.2d at 479.

B. Traditional Mandamus

Traditional mandamus is an extraordinary remedy which is 
available only "when necessary to prevent an inferior court from 
operating outside its prescribed jurisdiction." In re Thornburgh, 
869 F.2d at 1506 (citing Halkin, 598 F.2d at 198). See also In 
re United States, 872 F.2d at 477. The writ may issue only to 
correct a clear abuse of discretion or usurpation of judicial 
power. See Schlagenhauf v. Holder, 379 U.S. 104, 110 (1964); 
Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 382-383 
(1953); Thornburgh, 869 F.2d at 1506.

There can be no doubt that the District Court acted within 
its jurisdiction and did not abuse its discretion in ordering 
that the government pay a minimum undisputed portion of the at­
torney's fees. The District Court followed explicit authority 
within this Circuit, see McKenzie v. Kennickell, 669 F.Supp. 529 
(D.D.C. 1987), which in turn is consistent with every reported 
decision that has awarded interim attorney's fees against the 
government under various statutes. These decisions include both
those which explicitly addressed the sovereign immunity question 10/

10/ See Rosenfeld v. United States, 859 F.2d 717 (9th Cir. 1988) 
(FOIA); Allen v. Department of Defense, 713 F.Supp. 7 (D.D.C. 
1989) (FOIA); Brown v. Marsh, 707 F.Supp. 21 (D.D.C. 1989) (Title 
VII); and Jurgens v. Equal Employment Opportunity Commission, 660 F.Supp. 1097 (N.D. Tex. 1987) (Title VII).



- 28. -

and those which did not. Although the government now con­
tends that McKenzie was wrongly decided because it misapplied a 
canon of statutory construction, this alleged error of law does 
not constitute an act in excess of jurisdiction.

Moreover, a petitioner seeking a remedy in traditional man­
damus must demonstrate that it would suffer irreparable harm by 
being forced to wait for relief on appeal. In re Thornburgh, 869 
F.2d at 1507. The government has failed to establish that it has 
suffered harm from Judge Greene's order on interim fees that is 
not correctable on appeal. To be sure, the government alleges 
that because of the non-finality of the fee award, any payment 
would violate 28 U.S.C. § 2414, and it implies that even tempo­
rary interruption of its sovereign immunity before review on 
appeal is irreparable harm. But acceptance of this position 
would trigger mandamus jurisdiction, and the necessity for this 
Court to address the merits, of each interim fee order in which 
the District Court decided an issue against the government.
Sound judicial administration does not permit such a result.

Finally, the government's sovereign immunity arguments fail 
to establish, as they must, that its right to relief is clear and

11/ See Parker v. Lewis, 670 F.2d 249 (D.C. Cir. 1981) (Title 
VII); Kyles V. Secretary of Agriculture, 604 F.Supp. 426 (D.D.C. 1985) (Title VII); Ayuda v. Thornburgh, Civ. Action No. 88-0265 
(D.D.C. Apr. 4, 1989) (Equal Access to Justice Act); Powell v. 
Department of Justice, 569 F.Supp 1192 (N.D. Cal. 1983) (FOIA); 
Biberman v. Federal Bureau of Investigation, 496 F.Supp. 263 
(S.D.N.Y. 1980) (FOIA).



- 29. -

undisputable. In re Thornburgh, 869 F.2d at 1507. To the con­
trary/ as we establish below, the government has shown no right 
to relief because, as it concedes. Appellants' Brief at 23, its 
sovereign immunity is not violated by a fee award in a Title VII 
case in an uncontested or uncontestable amount. See Parker v. 
Lewis, 670 F.2d 249 (D.C. Cir. 1981).

C. Supervisory Mandamus

In a very few cases in which traditional mandamus is not 
available, the courts have acknowledged that a second form of 
mandamus, supervisory mandamus, may lie. In La Buy v. Howes 
Leather Co., 352 U.S. 249, 259-260 (1957), the Supreme Court held 
that the Courts of Appeals have discretionary power to issue 
writs of mandamus to assure proper judicial administration. This 
Court has granted supervisory mandamus to correct "'persistent or 
deliberate disregard of limiting rules.'" In re United States, 
872 F.2d at 472 (quoting National Right to Work Legal Defense v. 
Richey, 510 F.2d 1239, 1243 (D.C. Cir.), cert, denied, 422 U.S. 
1008 (1975)). See also Will v. United States, 389 U.S. 90 
(1967) .

Although the government argues that several District Court 
judges within this Circuit have made rulings similar to the one 
it is challenging in this case, the government merely alleges 
that the amounts awarded in each case were contested amounts.



- 30. -

Pet. for Mandamus 18-19. Absent any showing that the awards were 
contested, the government cannot show that the District Court 
judges here have clearly contravened established law. See Parker 
V. Lewis, 670 F.2d at 249-250. Even if they were contested, no 
one could seriously suggest that the District Judges in this 
Circuit have shown a "'persistent or deliberate disregard of 
limiting rules'" in their interim fee awards, the standard for 
granting supervisory mandamus.

D. Advisory Mandamus

If this Court takes mandamus jurisdiction, it should make 
clear that it is granting only advisory mandamus to address a 
question of first impression in the Circuit which ought to be 
settled. As a panel of the Court has stated, the petition for 
rehearing in this case was granted "to settle circuit law on the 
propriety of awarding interim, immediately payable attorney's 
fees against the government." Trout v. Lehman, App. No. 88-5264 
(D.C. Cir. Aug. 24, 1989).

Advisory mandamus lies only if the petitioner establishes 
that the issue before the District Court was one of first impres­
sion which would repeatedly arise before being adequately re­
viewed by the Court of Appeals. In re United States, 872 F.2d at



- 31. -

479. See also National Right to Work Legal Defense, 510 F.2d at
12/1243; Colonial Times v. Gasch, 509 F.2d 517 (D.C. Cir. 1975). --

This Court could conclude that the sovereign immunity issue
meets the standards articulated by these precedents. The issue
is arguably an important one of first impression in this Circuit,
and the government has raised the issue in other recent District 

13/Court cases. The issue is therefore likely to recur below
before it can be addressed on appeal.

12/ Because novel issues concerning the application of federal 
rules of evidence and discovery are prone to recur before appel­
late review, advisory mandamus has occasionally been granted to 
review such issues. See Schlagenhauf v. Holder, 379 U.S. 1041 
(1964) (Fed. R. Civ. P. 35(a)); Colonial Times v. Gasch, 509 F.2d 
517 (D.C. Cir. 1975); In re Von Bulow, 828 F.2d 94 (2d Cir.1987); Societe Nationale Industrielle Aerospatiale, 782 F.2d 120 
(8th Cir. 1986), vacated on other grounds, 482 U.S. 522 (1987);
In re Equal Employment Opportunity Commission, 709 F.2d 392 (5th 
Cir. 1983).

Advisory mandamus, however, is not reserved for these 
issues. In other instances, courts have granted review to ad­dress other important issues of first impression. See Morrow v.
District of Columbia, 417 F.2d 728 (D.C. Cir. 1969); In re Attor­
ney General of the United States, 596 F.2d 58 (2d Cir.), cert. denied, 444 U.S. 903 (1979); United States v. United States Dis- 
trict Court for the Eastern District of Michigan, 444 F.2d 651 
(6th CiF: l97l), aff'd, 407 U.S. 297 (1972).
13/ See Brown v. 1989] McKenzie v.Marsh, 707 F.Supp. 21 (D.D.C. ___________
l^nnickell, 669 F.Supp. 529 (D.D.C. 1987). In other cases, the 
government has not even raised the issue, see Palmer v. Schultz, 
679 F.Supp. 68 (D.D.C. 1988), which suggests that the government 
has not suffered the irreparable harm before appeal that is a 
necessary element of both interlocutory appellate review and 
traditional mandamus.

Counseling even against advisory mandamus is the indisputable 
fact that defendants abandoned this "important issue of first 
impression" in this case in October 1988.



- 32. -

The propriety of the specific amounts awarded by the Dis- 
trict Court, however, should not be reviewable on advisory manda­
mus because it raises no novel question of law and lies squarely 
within the District Court's sound discretion. (We show in Sec­
tion IV of this Brief that the District Court's award was fully 
justified.)

Similarly, advisory mandamus jurisdiction does not lie to 
review the District Court's factual conclusion that the amount of 
the interim fee award was neither contested nor contestable.
This conclusion rests upon highly fact-specific questions about 
developments in the trial of the case and the government's liti­
gating posture, which are properly within the province of the 
District Court pending full appellate review at the end of the 
case. A contrary holding —  permitting review by mandamus of 
each factual ruling by a trial court —  would intolerably mul­
tiply the workload of this Court, encourage piecemeal review of 
every interim fee ruling with which the government is dissatis­
fied, and undermine the District Court's ability to manage its 
trial docket.

III. THE JUDGMENT FUND STATUTE DOES NOT 
BAR PAYMENT OF PLAINTIFFS' FEES

A. Defendants' Arguments Have Been Rejected 
By Every Court Which Has Considered Them

In seeking to resurrect the sovereign immunity claim it 
abandoned in its October 1988 opposition to plaintiffs' motion



- 33. -

for summary affirmance, the government relies on 31 U.S.C.
§ 1304(a), which establishes permanent and continuing appropria­
tions for a "Judgment Fund" and waives sovereign immunity for 
payment of money judgments and awards against the United States 
and its agencies. Section 1304(a) provides in pertinent part;

Necessary amounts are appropriated to pay 
final judgments, awards, compromise settle­
ments, and interest and costs specified in the 
judgment or otherwise authorized by law when—
(1) payment is not otherwise provided for;
(2) payment is certified by the Comptroller General; and
(3) the judgment, award or settlement is 
payable
(A) under section 2414 . . .  of title 28. . . .14/

We note that under 28 U.S.C. § 2414, the government had 
ample authority to pay the judgment awarded by the District Court 
simply by determining that no immediate appeal was warranted or 
necessary. The Judgment Fund statute imposes no independent ban 
on payment of initial or interim awards of attorney's fees.

Defendants' position has been rejected by every court which 
has considered it. The Ninth Circuit, in Rosenfeld, stated:

The government has presented the identical 
argument in several cases over the last few years, without success. See Jurgens v. EEOC, 
660 F.Supp. 1097 (N.D.Tex. 1987) (Title VII interim fee awards); McKenzie v. Kennickell,

14/ Section 2414 of Title 28 authorizes the General Accounting Office to pay "final judgments rendered by a district court 
against the United States . . .[w]henever the Attorney Gene­
ral determines that no appeal shall be taken from a judgment 
or that no further review will be sought from a decision 
affirming the same . . . ."



- 34. -

669 F.Supp 529 (D.D.C. 
Young V. Pierce, 822 F

1987) (same); 
2d 1376 (5th

see also
T̂r— — .r—  1987)(describes district court's rejection of HUD's
argument that no interim fees were payable under 31 U.S.C. § 1304(a) until a final judg­
ment on the merits; but this issue not ap­
pealed) .

In Jurgens, the court reasoned that the 
attorney's fees provision of Title VII was an 
express waiver of federal sovereign immunity 
and, "to the extent of any conflict" with the judgment fund statutes, "the specific provi­
sion governing fees awards in Title VII cases, 
42 U.S.C. § 2000e-5(k), must prevail over the provisions in 28 U.S.C. § 2414 governing pay­
ment of judgments generally." 660 F.Supp. at 
1102. While agreeing with the defendant EEOC 
that "waivers of sovereign immunity must be construed strictly in favor of the sovereign 
and not enlarged 'beyond what the language requires,'" 660 F.Supp. at 1101 (quoting Li- 
brary of Congress v. Shaw, 478 U.S. 310, 318, 106 S.Ct. 2957, 2963, 92 L.Ed.2d 250 (1986)), 
the Jurgens court found a clear waiver of 
immunity in Congress's passage 
ney's fee provision^

of the attor-

The court in McKenzie v. Kennickell, 660 
F.Supp. 529, essentially followed Jurgens in rejecting the government's same argument. It 
further reasoned that, because an interim award is but an integral part of the final 
judgment, no separate waiver of immunity is 
required. 669 F.Supp. at 535.

859 F.2d at 726 (emphasis added).

The Rosenfeld court concluded; "The Judgment Fund statute 
is not a superseding limitation on the government's waiver of
sovereign immunity." Id. at 727. 15/ The Judgment Fund statute

15/ The Rosenfeld court also rejected defendants' argument that 
the Judgment Fund statute is the only possible source of payment of an interim fee award. at 727.

See also NORML v. Mullen, 828 F.2d 536, 545-546 (9th Cir. 
1987) (rejecting government's argument that sovereign immunity 
bars District Courts from requiring federal defendants to pay special master's fees, costs, and expenses).



- 35. -

is merely a "mechanism for facilitating payment of judgments, not 
a further limitation on the United States' waiver of sovereign 
immunity." Id. (citation omitted). The Judgment Fund statute
clearly does not limit defendants' liability to make payments
. . .  16/ from agency appropriations. --

B. Title VII Is A Waiver Of Sovereign Immunity

The Judgment Fund statute, § 1304(a), which was enacted many 
years prior to passage of the Equal Employment Opportunity Act,

16/ The Comptroller General has held that agencies are required 
to pay attorney's fees incurred at the administrative level from 
their own appropriations. "[A]n agency may expend funds for any 
purpose that is reasonably necessary and proper for, or inci­dental to, carrying out the purpose of its appropriation unless 
expenditure is for an illegal purpose or a purpose for which 
other appropriations are specifically available." Comptroller- 
General Unpublished Opinion B-199291, Westlaw Slip Op. (June 19, 
1981). See also Electrical District No. 1 v. FERC, 813 F.2d 1246, 1247-1248 (rejecting argument that award of attorney's fees 
under Equal Access to Justice Act cannot be paid unless Congress 
earmarks funds precisely for that purpose and noting Opinion of the Comptroller General, 62 Comp. Gen. 692, 697, 700 (1983), that 
agency operating appropriations are available for such payments).

If agency appropriations are available to pay attorney's fees 
at the agency level and such fees are routinely paid, then ap­
propriations are surely available to pay fees incurred in litiga­
tion. Comptroller General Opinion B-199291; see also 62 Comp. 
Gen. 239, 244 (1983). Thus, defendants' assertion that "the clear precedent of the Comptroller General establishes that Title 
VII fee awards must be paid from the funds pursuant to the final­
ity limitations" is incorrect. Appellants' Brief at 28.

Where Congressional intent and the statute are clear, the 
Court will not defer to an agency's interpretation. Stoddard v. 
Board of Governors of the Federal Reserve System, 868 F.2d 1308, 
1310 (D.C. Cir. 1989); ANR Pipeline v. FERC, 870 F.2d 712, 720 
(D.C. Cir. 1989). The opinion of the Comptroller General cited 
in Appellants' Brief at 28 is devoted solely to a discussion of 
the Equal Access to Justice Act and never discusses the language 
of 42 U.S.C. 2000e-5(k) or the legislative history of the Equal 
Employment Opportunity Act of 1972.



- 36. -

does not apply to money judgments against the government in Title 
VII cases because Title VII provides independent authority and a 
waiver of sovereign immunity under the plain language of the 
statute for payment of an award of interim fees. Title VII, as 
amended by the Equal Employment Opportunity Act of 1972, specifi­
cally provides that the "United States shall be liable for costs 
[including attorneys' fees] the same as a private person." 42 
U.S.C. § 2000e-5(k).

This Court has repeatedly stated that if the "terms of the 
statute are clear, and no 'clearly expressed legislative inten­
tion to the contrary,' is shown, then the statutory language is 
dispositive." Crowley Caribbean Transport, Inc, v. United 
States, 865 F.2d 1281, 1283 (D.C. Cir. 1989) (citation omit­
ted). Thus, under settled canons of statutory construction, the 
United States has waived its sovereign immunity for an award of 
interim fees in Title VII cases.

In enacting the 1972 amendment. Congress clearly intended to 
provide federal employees with the same legal protections against 
employment discrimination as employees in the private sector and 
to create the same incentives for private litigation to enforce 
the law. The Senate Report accompanying the Act stated that 
"aggrieved [federal] employees or applicants will have the full 
rights available in the courts as are granted to individuals in 
the private sector under Title VII." S. Rep. No. 92-415 
(1971). Id.



- 37. -

Under the fee shifting provisions of Title VII, Congress 
contemplated that it would be private members of the Bar, acting 
as private attorneys general, who would, of necessity, be called 
upon to vindicate the policies and promises of Title VII. Since 
private sector defendants are indisputably liable for interim 
attorney's fees in Title VII cases, granting the same "full 
rights" available to individuals in the private sector necessar­
ily means that interim awards of attorney's fees are available to 
federal employees. Grubbs v. Butz, 548 F.2d 973, 976-977 (D.C. 
Cir. 1976) (interim award of attorney's fees in a Title VII case 
against the federal government is proper once discrimination has 
been established); James v. Stockham Valves & Fittings, 559 F.2d 
310 (5th Cir. 1977), cert, denied, 434 U.S. 1034 (1978).

The Supreme Court's decision in Library of Congress v. Shaw,
478 U.S. 310 (1986), also disposes of the government's sovereign
immunity argument. The Court there concluded that "[i]n making
the Government liable as a defendant under Title VII, Congress
effected a waiver of the Government's immunity from suit, and
from costs, including reasonable attorney's fees." Id. at 319, 

17/312, 323. Shaw recognizes that Title VII is a specific

17/ The holding in Shaw is merely that the U.S. is immune from an 
interest award. The "special 'no-interest rule'" at issue in 
Shaw is applicable "only where the United States' liability for 
interest is at issue." Missouri v. Jenkins, 109 S.Ct. 2463, 2468 
n.3 (1989) (emphasis added).

The immunity of the United States from an award of interest 
makes the availability of interim fee awards against the federal 
government even more essential to granting full and equal employ­ment rights to federal employees. An interim award makes up, at 
least to some extent, for the delay in compensation in a pro­
tracted case like the present one. See id. at n.6.



- 38. -

statute which in relevant part extends liability to the federal 
government for unlawful discrimination against its employees and 
waives sovereign immunity. "There can be no sovereign immunity 
where Congress has unambiguously consented to waive immunity from
suit by statute . . . ." Jones v. Lujan, ___ F.2d ___, 1989 WL
70484 (D.C. Cir. June 30, 1989), Slip Op. at 8-9.

As a leading District Court opinion has held:

To the extent of any conflict . . . the speci­
fic provision governing fees awards in Title 
VII cases, 42 U.S.C. § 2000e-5(k), . . . must 
prevail over the provisions in 28 U.S.C.
§ 2414 [and 31 U.S.C. § 1304(a)] governing payment of judgments generally. This conclu­
sion is strengthened by the fact that § 2414 
predates § 2000e-5(k) by several years. Under 
general principles of statutory construction, the newer, more specific provisions of 2000e- 
5(k) must prevail over the older, more general 
provisions of 28 U.S.C. § 2414 [and 31 U.S.C.
§ 1304 (a) ] .

Jurgens v. Equal Employment Opportunity Commission, 660 F.Supp. 
1097, 1100 (N.D. Tex. 1987), cited in McKenzie, 669 F.Supp. at 
534.

Justice Blackmun, speaking for the Supreme Court, explicitly 
endorsed the use of interim fee awards in civil rights cases to 
minimize losses due to delay in payment:

To delay a fee award until the entire litiga­
tion is concluded would work substantial hard­
ship on plaintiffs and their counsel, and discourage the institution of actions despite 
the clear congressional intent to the contrary evidenced by passage of [the Education Amend­
ments Act of 1972].



- 39. -

Bradley v. School Board of Richmond, 416 U.S. 696, 723 (1974) 
(interim fees are available after an order determining substan­
tial rights of parties even prior to a final order).

Under other federal statutes as well, the Supreme Court has 
discerned a "clear congressional intent that interim fee awards 
be available to partially prevailing civil rights plaintiffs . .
. ." Texas State Teachers Ass'n. v. Garland Independent School 
District, 109 S.Ct. 1486, 1492 (1989) (interim fee awards avail­
able under the Civil Rights Attorney's Fees Awards Act of 1976,
42 U.S.C. § 1988, where plaintiff has prevailed on an important 
matter in the litigation). The award of attorney's fees pendente 
lite is "especially appropriate where a party has prevailed on an 
important matter in the course of litigation, even when he ulti­
mately does not prevail on all issues." S. Rep NO. 94-1011 
(1976) at 5, cited in Hanrahan v. Hampton, 446 U.S. 754, 757 
(1980) (emphasis in original). It would be utterly incongruous 
and inconsistent with Congressional intent if Title VII suits 
against the federal government were carved out as a glaring ex­
ception to the principle that interim fee awards are available to 
prevailing plaintiffs in civil rights litigation.

Thus, it follows from both the language and the policy of 
the fee provisions of Title VII that the District Court has stat­
utory authority to award interim fee awards against the United



- 40. -

States on precisely the same terms as against a private em­
ployer. Any other interpretation of the statute would distort 
its plain language and violate Congress's intent. Indeed,
if the general appropriation provisions, 28 U.S.C. § 2414 and 31 
U.S.C. § 1304(a), were read to prohibit an award of interim fees, 
then the government would no longer be treated identically with 
private persons. Id. "This express waiver of sovereign immun­
ity, occurring in a limited, defined context, must control as 
against the broader generalized terms of 28 U.S.C. 2414 and 31 
U.S.C. 1304(a)." Brown v. Marsh, 707 F.Supp. at 23.

Unlike an award of interest, which the Supreme Court in Shaw 
determined was historically viewed as a separate element of dam­
ages requiring an express and discrete waiver of sovereign immun­
ity, an interim award is an integral part of the fees and costs 
for which sovereign immunity has been waived. No separate waiver 
of sovereign immunity is required for an interim award.
McKenzie, 669 F.Supp. at 535.

C. The Award Here In Question Is Not Technically An 
Interim Award In Any Event, But Rather An Initial 
Award For Final Portions Of Successful Litigation

Since defendants have conceded that plaintiffs are prevail­
ing parties for the purpose of the portions of this litigation 
here in question, it is clear that the government has no basis 
for appealing plaintiffs' entitlement to fees on the ground that



- 41. -

these portions of the litigation are not final within the meaning
18/of § 2414. See p. 12, supra.

Even if it were assumed, arguendo, that sovereign immunity 
otherwise bars an award of interim attorney's fees, the fee award 
here in question, an initial award for portions of the litigation 
which have become final, is proper. The trial court determined 
in its sound discretion that, as defendants had conceded, the 
portions of the case for which the fees were awarded were 
final. There is no basis for upsetting that determination by the 
District Court.

D. Circuit Law Clearly Authorizes The 
District Court's Fee Award

Defendants, citing Parker v. Lewis, concede that an "excep­
tion" to their Judgment Fund argument "exists where an award of 
fees, even on an interim basis, is not subject to dispute." 
Appellants' Brief at 23. Here, defendants chose not to follow 
the law of this Circuit requiring them to file specific substan­
tiated objections regarding specific aspects of plaintiffs' mo­
tion for award of attorney's fees and costs. See National Asso­
ciation of Concerned Veterans v. Secretary of Defense, 675 F.2d 
1319, 1326 (D.C. Cir. 1982). Defendants chose not to dispute any

18/ As Judge Greene observed in his order denying the govern- 
me’nt's motion for entry of final judgment under Fed. R. Civ. P. 
54(b), "'interim' fees is perhaps a misnomer here since the order represented the first award of attorney's fees to plaintiff's 
attorney in the entire fifteen-year course of his representation of plaintiffs." Trout v. Ball, Civ. Action 73-55 (D.D.C. June 2, 
1989) (Memorandum and Order at 1).



- 42. -

hours in plaintiffs' request for compensation at their counsel's 
minimum historical rates. See p. 14-15, supra. Thus, the ini­
tial award of fees is not now subject to dispute because defen­
dants failed to meet their burden under Concerned Veterans. 
Defendants' sovereign immunity argument, as well as lacking legal 
merit, is inapplicable to the facts of this case.

IV. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION 
IN MAKING THE FEE AWARD IN THIS CASE

The District Court prudently ordered immediate payment of 
attorney's fees to forestall further government efforts to pro­
tract the fee litigation. Judge Parker recently concluded in 
McKenzie; "The practical effect of the government's tactics to 
delay payment is to reduce the value of any award and increase 
unnecessarily plaintiff's litigation costs." McKenzie, 669 
F.Supp. at 532.

Similarly, the Supreme Court has admonished that: "Parties 
to civil rights litigation in particular should make a conscien­
tious effort, where a fee award is to be made, to resolve any 
differences," Blum v. Stenson, 465 U.S. 886, 902 n.l9 (1984). As 
the Court has stated, a "request for attorney's fees should not 
result in a second major litigation." Hensley v. Eckerhart, 461 
U.S. 424, 437 (1983). Nor should contests over fees be permitted 
to evolve into exhaustive trial-type proceedings. Copeland v. 
Marshall, 641 F.2d 880, 896 (D.C. Cir. 1980) (en banc); Morgan v.



- 43. -

District of Columbia, 824 F.2d 1049, 1067 (D.C. Cir. 1987) (Court 
"reconfirmed our conviction in the importance of heeding the 
Supreme Court's call for 'conscientious effort to resolve differ­
ences over fee awards reasonably, responsibly, and without pre­
cipitating another federal case'" (citations omitted).

Plaintiffs need only provide "fairly definite information as 
to the hours devoted to various general activities, e.g., pre­
trial discovery, settlement negotiation, and the hours spent by 
various classes of attorneys . . . ." Jordan v. United States 
Department of Justice, 691 F.2d 514, 520 (D.C. Cir. 1982) (ci­
tation omitted).

Plaintiffs' fee petition here met all of the criteria set 
forth in Jordan and Concerned Veterans, supra. Plaintiffs pro­
vided all the information reasonably available to them as to how 
they allocated time between the consolidated cases; they also 
provided a daily narrative setting forth the basis for time re­
corded. There can be little doubt that the fee petition was 
"sufficiently detailed to permit the District Court to make an 
independent determination whether or not the hours claimed are 
justified." Concerned Veterans, 675 F.2d at 1327.

As this Court has repeatedly noted, "it is not expected that 
fee contests should be resolved only after the type of searching 
discovery that is typical where issues on the merits are pre­
sented." Concerned Veterans, 675 F.2d at 1329. Fee contests 
should not be turned into full trials. "Nor should the zeal of 
government counsel be permitted to require applicants to expend



- 44. -

substantial additional time supporting fee claims which will only 
result in a request for more compensation for these additional 
labors." _Î . Discovery by fee opponents should be "pointed to 
clearly relevant issues" so that fee determination can be "accom­
plished in reasonable time without turning such matters into a 
full trial." Id.

Even to this date, defendants have failed, in disregard of 
the District Court's August 5, 1988 Order, to identify those 
remaining portions of the fee application which they cannot in 
good faith contest. It surely is not grounds for this Court to 
reverse the District Court at this late date in the litigation 
simply because defendants baldly assert that the District Court 
erred in refusing to grant defendants' motion to compel burden­
some, irrelevant, and unnecessary discovery of counsel's entire 
law files dating back to 1972.

B,

In Parker v. Lewis, supra, this Court granted summary affir­
mance of interim attorney's fee awards made by District Courts 
against federal defendants. Here, as in those cases, the amount 
of attorney time allocated to the portions of the litigation 
which had become final was not contested. Further, the hourly 
rates claimed here by each attorney for the purpose of an interim 
award are the lowest historical hourly rates of each such attor­
ney. These lowest historical hourly rates were not and, indeed, 
could not be contested by the government as being unreasonable.



- 45. -

Judge Greene correctly reasoned; "[F]airness dictates that the 
amounts to which plaintiffs are plainly entitled be swiftly iden­
tified and awarded." 702 F.Supp. at 3.

This Court in Parker v. Lewis stressed that unreasonable de­
lays in payment of funds concededly owed to Title VII plaintiffs 
directly contravene the public policy behind the attorney's fees 
provision of the statute:

[T]his is a case in which only the amount of 
the judgment is open to any dispute, and a 
large portion of the award is uncontestable.
We are concerned that the public policy dic­
tating that attorneys' fees be awarded not be completely undercut by routine delays in pay­
ment of fees that are properly due and ow­
ing. Such delays have the potential to dampen 
substantially attorneys' enthusiasm to un­
dertake discrimination cases. The court should not allow delay in cases such as this 
one to undermine the efficacy of Title VII 
policy. 670 F.2d at 250 (emphasis in orig­
inal) .

Surely, if the allocations made by plaintiffs below were 
indeed "contestable," appellants could and should have provided 
out of the hundreds of pages of day-by-day time allocations spe­
cific challenges to the allocations made by plaintiffs. But 
defendants entirely failed to contest the request for fees and 
costs with substantiated objections regarding specific aspects of 
the request, as required by Concerned Veterans, 675 F.2d at 1326.



- 46. -

Because of defendants' continual avoidance of the merits of 
the fee issue, the award was neither "uncontested [n]or uncon- 
testable." Thus, the District Court was right in treating Plain­
tiffs' Motion For Immediate Payment as suomitted on the merits.
Cf. Rule 108(h) of the Rules of the U.S. District Court for the

19/District of Columbia. The amount awarded by the District
Court was, in fact, uncontested by defendants and was and is 
uncontestable. Thus, the District Court's order clearly satis­
fied the standards articulated by this Court in Parker v. Lewis, 
670 F.2d at 250.

19/ This Court has long recognized that failure to file a proper 
statement "opposing a motion for summary judgment may be fatal to 
the delinquent party's position." Tarpley v. Greene, 684 F.2d 16 n.l5 (D.C. Cir. 1982) (citations omitted); Twist v. Meese, 854 
F.2d 1421 (D.C. Cir. 1988) (District Court did not abuse its 
discretion in accepting as true government's statement of mater­
ial facts not in dispute where plaintiff violated Rule 108(h) when he failed to submit counterstatement). See also Concerned 
Veterans, 675 F.2d at 1337-1338 (Tamm, J., concurring) ("the burden of proceeding then shifts to the party opposing the fee 
award, who must submit facts and detailed affidavits to show why the applicant's request should be reduced or denied. Neither 
broadly based, ill-aimed attacks, nor nit-picking claims by the 
government should be countenanced").

Rule 108(h) provides as follows;
Motions for summary judgment. . . .  An oppo­
sition to such a motion [for summary judgment] 
shall be accompanied by a separate concise 
statement of genuine issues setting forth all 
material facts as to which it is contended 
there exists a genuine issue necessary to be litigated, which shall include references to 
the parts of the record relied on to support 
the statement. . . .  In determining a motion for summary judgment, the court may assume 
that facts identified by the moving party in its statement of material facts are admitted, 
unless such a fact is controverted in the 
statement of genuine issues filed in opposi­
tion to the motion.



- 47. -

"A trial court's award of attorney's fees may be upset on 
appeal only if it represents an abuse of discretion." Morgan v. 
District of Columbia, 824 F.2d at 1065. This Court has further
stated:

Implicit in the governing standard is the 
recognition that the trial court has a better 
"feel," as it were, for the litigation and the 
remedial actions most appropriate under the circumstances presented. The Court of Appeals 
enters the fray only at the end of what may well be —  and indeed was here —  a lengthy 
process that moved step-by-step toward the disposition that prompts the challenge on 
appeal.

Founding Church of Scientology v. Webster, 802 F.2d 1448, 1457 
(D.C. Cir. 1986), cert, denied, 108 S.Ct. 199 (1987).

This Court has held the scope of review of discovery orders 
is limited:

An appellate court will reverse a dis­
trict court's discovery orders only for abuse 
of discretion, that is, "if its actions were 
clearly unreasonable, arbitrary, or fanci­
ful." The district court has broad discretion 
to weigh the factors in deciding whether dis­
covery should be compelled.

In re: Sealed Case, 856 F.2d 268, 271 (D.C. Cir. 1988) (cita­
tions omitted).

Defendants make no plausible argument that any alleged error 
of the District Court in dealing with the fee issue is so serious 
as to constitute an abuse of discretion.



- 48. -

The U.S. Court of Appeals for the Fourth Circuit recently 
stated:

The computation of attorneys fees is 
primarily the task of the district court, and 
we are not entitled to disturb a district 
court's exercise of discretion even though we 
might have exercised that discretion quite differently. Hensley v. Eckerhart, 461 U.S.
424, 437 (1983); Daly v. Hill, 790 F.2d 1071,
1078-79 (4th Cir. 1986). As~we stated in 
Ballard v. Schwewiker, 724 F.2d 1094, 1098 (4th Cir. 1984):

It is important that the district court 
remain primarily responsible for resolv­
ing fee disputes, because it is in the 
better position to evaluate the quality 
and value of the attorneys' efforts. The 
very discretion basic to the trial 
court's duties creates results that inev­itably differ in degree . . . .  We gauge 
only whether the trial court abuses its 
proper discretion.

National Wildlife Federation v, Hanson, 857 F.2d 313, 317 (4th 
Cir. 1988).

Balanced against defendants' factually unsupported claim of 
"sheer fantasy" is the principle strongly enunciated by this 
Court in Parker v. Lewis that "the public policy dictating that 
attorneys' fees be awarded not be completely undercut by routine 
delays in payment Of fees that are properly due and owing." 670 
F.2d at 250.

Upon the facts of this record, the District Court was cor­
rect in concluding that no additional discovery was required to 
award the minimum irreducible attorney's fees and costs as calcu­
lated by plaintiffs in their Supplemental Memorandum of February



- 49. -

26, 1988, and that plaintiffs satisfied the fee application 
requirements long established in the District of Columbia Cir­
cuit. The award here in question clearly meets the standard of 
Parker that it be in "an amount that either [was] not contested 
or [was] not contestable." Id. at 250.

V. CONCLUSION

Something is badly skewed here. This case,should not still 
be pending almost seventeen years after it was filed. It should 
not continue to consume enormous amounts of judicial time and 
other resources which can be better used elsewhere.

In no small measure, the current disfigurement of this case 
is a direct result of litigation tactics by defendants which both 
this Court and the District Court have condemned along the way.
It is time to call a halt to defendants' maneuvering. The gov­
ernment has acted with all the defensiveness of a private em­
ployer accused of wrongful conduct, rather than as an agent of 
the public interest as defined by Congress in Title VII.

There is no need for this Court at this juncture to issue 
special advisory instructions to the District Courts for handling 
"interim fee awards" in Title VII cases. The government can 
itself eliminate these unnecessary disputes by the practice of 
ordinary rules of good faith and comity applicable to all other 
litigants.



- 50.

If this Court exercises either appellate or mandamus juris­
diction here, it should affirm the District Court's initial award 
of attorney's fees and costs.

Respectfully submitted.

BradleyMcDonald 81018

Jn F. Karl, Jr. 292458 
onald & Karl 1919 Pennsylvania Avenue, N.W. 

Suite 300Washington, D.C. 20006 
(202) 338-7800
Counse^^for Plaintiffs/Appellees

Donald D. Lee 411516 
Arnold & Porter
1200 New Hampshire Avenue, N.W. 
Washington, D.C. 20036 
(202) 872-6700
Co-Counsel for Respondent Hon. 
Harold H. Greene on Petition for 
Mandamus



S T A T U T O R Y
A D D E N D U M



28 U.S.C. § 1291

§ 1291. Final decisions of district courts
The courts of appeds (other than the United States Court of Appeals for 
the Federal Circuit) shall have jurisdiction of appeals from all final 
decisions of the district courts of the United States, the United States 
District Court for the District of the Canal Zone, the District Court of 
Guam, and the District Court of the Virgin Islands, except where a direct 
review may be had in the Supreme Court. The jurisdiction of the United 
States Court of Appeals for the Federal Circuit shall be limited to the 
jurisdiction describ^ in sections 1292(c) and (d) and 1295 of this title

28 U.S.C. § 1292(a)

§ 1292. Interlocutory decisions
(a) Except as provided in subsections (c) and (d) of this section, the courts 
of appeals shall have jurisdiction of a p p ^ s  from:

(1) Interlocutory orders of the district courts of the United States, the 
United States District Court for the District of the Canal Zone, the 
District Court of Guam, and the District Court of the Virgin Islands, or 
of the judges thereof, granting, continuing, modifying, refusing or 
dissolving injunctions, or refusing to dissolve or modify injunctions, 
except where a direct review may be had in the Supreme Court;

28 U.S.C. § 1651

§ 1651. Writs
(a) The Supreme Court and all courts established by Act of Congress may 
issue all writs necessary or appropriate in aid of their respective jurisdic­
tions and agreeable to the usages and principles of law.



A P P E N D I X

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 
OF PLAINTIFFS' MOTION FOR THE ENTRY OF 

ADDITIONAL FINDINGS OF FACT AND CONCLUSIONS OF LAW 
FINDING THAT DEFENDANTS DISCRIMINATED ON THE BASIS OF SEX AGAINST THE CLASS OF 

TECHNICAL PROFESSIONAL WOMEN EMPLOYED AT
NAVCOSSACT/NARDAC_________________



UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA

YVONNE G. TROUT, et al., 
Plaintiffs,

V.

JOHN F. LEHMAN, £t al., 
Defendants.

Civil Action No. 73-55 (Greene, J.)

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 
OP PLAINTIFFS' MOTION FOR THE ENTRY OF 

ADDITIONAL FINDINGS OF FACT AND CONCLUSIONS OF LAW 
FINDING THAT DEFENDANTS DISCRIMINATED 

ON THE BASIS OF SEX AGAINST THE CLASS OF TECHNICAL PROFESSIONAL WOMEN EMPLOYED AT
NAVCOSSACT/NARDAC________________

Bradley G. McDonald 
MCDONALD & KARL 
Suite 3001919 Pennsylvania Avenue, N.W. 
Washington, D.C. 20006 
(202) 338-7800
John P. Karl, Jr.MCDONALD & KARL 
Suite 300
1919 Pennsylvania Avenue, N.W, Washington, D.C. 20006 
(202) 338-7800
James L. LyonsKELLOGG, WILLIAMS & LYONS
Suite 8251275 K Street, N.W.
Washington, D.C. 20006 
(202) 898-0722
Counsel for Plaintiffs



)

generally do not appear to be statistically reliable predictors 
whether the agency gives a person a GS-9 or higher grade versus 
a GS-7 or lower grade.

The estimated coefficient for the sex dummy indicates that 
the likelihood that a female employee will receive a GS-9 or 
greater is 23.3 percent less than a male applicant of similar 
education and experience. Thus, for example, if 100 male and 
100 female applicants of equal qualifications were hired, the 
proportion of women receiving a GS-9 or higher would be about 23 
percent below the proportion of men receiving a GS-9 or higher. 
This difference would account for a considerable salary differ­
ential between the two groups. This difference in grade at 
accession is a contributing factor in the salary differentials 
between male and female professionals. at 40.

D. Defendants' Trial Evidence

The opinion of the Court of Appeals did not disturb this 
Court's finding that there was discrimination against female 
class members in their initial placement at NAVCOSSACT/NARDAC.702 
F.2d 1105. The Court simply felt that defendants' "rebuttal evi­
dence submitted ... at trial was sufficient to raise a genuine 
issue concerning their responsibility for initial placement deci­
sions." The Court incorrectly assumed that "plaintiffs made no 
attempt to counter this evidence." Id.

- 37 -



)

It is clear from the above language that the Court of 
Appeals was influenced by the following argument appearing at 
page 63 of Appellants' Brief.

The 'factual' error that the court made was that 'NARDAC 
did not make a convincing showing that it had no control 
over initial grade determinations.' 0£., 517 F. Supp. at 
880, 885. This conclusion is simply wrong. Civil Service 
and 0PM rules and regulations (Add. 4, 6, 9, 12-15, 17-25), 
the unrebutted testimony of personnel experts at trial, 
Tr. 1204-11 (JA 1822-1829), and the detailed initial place­
ment analysis presented at the relief and reconsideration 
phases of this case, D. Ex. 211 at 7-8 (JA 1220-1221), 
demonstrate, without contradiction, that initial placement 
is wholly dependent upon the acts and practices of other federal employees or 0PM as it applies its X-118 Standards 
to applicants new to the federal government.
At the outset we note that it was highly improper for 

Defendants to rely on posttrial exhibit 211 in making this 
argument. This exhibit was not rebuttal evidence submitted at 
trial and was, in fact, excluded from evidence by this Court's 
order denying defendants' Motion for Reconsideration and a new 
trial. Defendants did not argue in the Court of Appeals that 
this Court committed error in denying the Motion for Reconsider­
ation. Rather defendants repeatedly argued in their Briefs as- 
if such post trial exhibits had in fact been admitted into evi­
dence. (See Appellants' Brief at 15, 16, 21, 43, 63, 66, 71, 72 
and 74; Reply Brief at 6-9 [Exhibit B]). In addition to being 
totally improper, such conduct by defendants in repeatedly using 
such exhibits as if they had in fact been admitted at trial is

- 38 -



clearly contemptuous of the Order of this Court denying defen­
dants' attempted submission of such posttrial evidence.

Stripped of the blatant and improper reliance on Post-trial 
Exhibit 211, appellants' Brief clearly establishes that the 'un- 
contradicted evidence adduced at trial" upon which they rely for 
their argument of "non-control" over grade at initial placement 
consists of ten pages of direct testimony of David Neerman, who 
was at the time Personnel Officer for the Naval Air Systems Com­
mand, a copy of the X-118 standards and the Whitten Amendment. 
(Appellants' Brief at 15-16, 63 [Exhibit B].)

l^Since Exhibit 211 [now repackaged as "Remand Exhibit" 2] was 
excluded from evidence for purposes of liability evidence, we 
have never voiced even our serious preliminary objections. We have never had an opportunity to examine defendants' employees 
who prepared such Exhibit. We have never had access to the per­
sonnel records in question, although defendants had them long 
prior to and at the time of trial.
This Exhibit purports to present averages of subjective judgments 
made with respect to a large number of factual statements of 
experience and education contained in employee personnel files. 
The judgments are not made by the NAVCOSSACT/NARDAC supervisors 
who actually made initial hiring decisions during this period of 
time. No claim is made that initial placement decisions were 
actually made for the reasons set forth in this posttrial 
exhibit. The report clearly does not support defendants' claim 
on appeal that they had no control over initial placements and 
the body of the report does not support the conclusions stated. 
There is no showing who made such self-serving conclusions or 
why they were qualified to make such assertions.
In fact, an argument can be made from the face of such exhibit 
that defendants consistently hired females at grades lower than ones for which they were qualified under the X-118 standards. 
See Tables I and II purporting to set forth the average "Total 
Qualifying Experience" for female placements during 1972-1979.

- 39 -



It is abundantly clear that Mr. Neerman's testimony does 
not even purport to establish that defendants had no control over 
grade at̂  initial placement. In fact, Mr. Neerman testified 
exactly to the contrary in response to a question from the Court.

THE COURT; Let me ask you this: if the statistics 
showed hypothetically that women hired by NARDAC were gen­erally hired at lower levels than men, and if the statis­
tics further showed that men tended to be promoted more 
rapidly than women, particularly at higher grades, would 
you be able without more information to explain that by 
these various factors that you gave us like the Whitten 
Amendment and veterans preference, and the fact people 
were being transferred from other agencies and so forth, 
would that, by itself, explain the discrepancy?

A; I think I would need a lot more information than I 
have from that data. (Tr. 1211, JA 1829.)

Similarly, there is simply no evidence in the trial record 
that the X-118 Standards [Exhibit E] or the Whitten Amendment 
[Exhibit F] deprived defendants of all control over grade at 
initial hire. The X-118 standards merely set forth minimum 
educational and work experience necessary for applicants to be 
rated as eligible for hire at various grade levels. The stan­
dards themselves clearly do not deprive the agency of the 
control over who is actually hired for a particular position. 
As Mr. Neerman testified, the agency is free to hire anyone of 
the top three persons on the register. Tr. 1206 (J.A. 1824). 
Further, there is nothing in the X-118 standards which prevents 
defendants from hiring females at grade levels lower than those 
for which they are qualified under the X-118 standards.

- 40 -



Moreover the X-118 standards are highly subjective and 
generalized in nature and permit substantial subjective judg­
m e n t . See Segar v. Smith, Slip op. at 39-40. For example, 
progressively responsible experience in administrative, techni­
cal, investigative or other responsible work can be used to 
satisfy the requirement of three years general experience. In 
addition, a wide variety of types or combinations of experiences 
can satisfy the specialized and specific experience requirements 
set forth on the X-118 standards. Undergraduate and graduate 
level study can also be substituted for general and specialized 
experience. • [ S]ubjective [placement] procedures are to be 
closely scrutinized because of their susceptibility to discrim­
inatory abuse.* Royal v. Missouri Highway & Transportation Com­
mission, 655 F.2d 159, 164 (8th Cir. 1981) (Citations omitted); 
Abrams v. Johnson, 534 F. 2d 1226, 1231 (6th Cir. 1976). See 
also Davis v. Califano, 613 F.2d 957, 965 (D.C. Cir. 1979).

i^The lack of connection between the X-118 standards and posi­
tion classification is amply demonstrated by Murray Silverman's own testimony. He was performing duties as a GS-14 personnel 
officer. Silverman at 92-104, 108.
Mr. Silverman was promoted to GS-15 computer systems analyst, 
after he was instructed by his two immediate supervisors to file 
an application for this position. Silverman at 113-127. Actu­
ally there was no relationship between the duties Mr. Silverman performed and the position classification used to obtain his 
promotion to GS-15 computer systems analyst. Taylor at 145-169.

- 41 -



)

Defendants' other personnel expert witness, Eudora Reed, 
clearly established that position classification involves many 
subjective considerations.

THE COURT; You keep saying. Hiss Reed, fact “A" may 
have an impact on the position and fact ■B" may have an 
impact or could change the position or not. I take it 
from all of that, that classifying positions is not an 
exact science?

A; No sir, it isn't.
THE COURT; Somebody goes in there and takes all these 

factors into account and comes up with a judgment, is that 
right?

A; That is right.
THE COURT; So it isn't handed down from Mt. Sinai the 

way I got your testimony from the beginning?
A; That is right, it is not an exact science. It is a 

matter of judgment and manner in which a position operates. 
It is not set in concrete, it changes, it is management's 
prerogative to assign work or distribute work, and when 
they do that, the position may change. If there is a
reorganization, the position may change. I think that is what happened here. I don't know the old NAVCOSSACT or­
ganization. I don't know whether the classification was 
accurate or not, I can't address that.
Tr. 1336-1337. (JA 1850-1851.)
In any event, the X-118 standards corroborate rather than 

contradict Dr. Straszheim's findings of discrimination. Quali­
fication for grade-at-hire is essentially determined by a mix of 
education and experience. These are the identical proxies used 
by Dr. Straszheim in comparing the grade-at-hire of male and
female professionals at NAVCOSSACT/NARDAC.19

l^Defendants do not make a serious argument that the Whitten 
Amendment could or does have any substantial impact on determi­
nation of grade-at-hire. It would, of course, only be operative

- 42 -



E. Trial Evidence Showing Defendants' Claim of 
No Control Over Grade at Initial Placement is Pretext

As contrasted with the above speculative explanations prof- 
ferred by defendants, there is indeed substantial undisputed 
evidence in the trial record which clearly establishes defen­
dants' substantial degree of control over who was hired at what 
grade level.

(1) Pretrial Order

Defendants stipulated in the Pretrial Order concerning the 
methodology and manner of managing and setting policy at 
NAVCOSSACT. The upper management at NAVCOSSACT consisted of the 
Commanding Officer, the Executive Officer, the Technical Director 
and the Personnel Officer. Most major policy and management 
decisions were made by this group in connection with the Depart­
ment Heads and Division Heads. Prior to the reorganization in 
1970-71, there were three departments and nine divisions. After 
the reorganizations there were seven departments. Mr. Calo 
couldn't recall if any women were considered for department 
heads. All of the department and division heads and other man­
agement officials were white males with the sole exception of

(Footnote 19 continued)
with respect to federal employees applying for a higher grade 
level position when they had been in their current grade level 
less than one year. There is no evidence in the trial record 
even tending to establish that this relatively remote type of 
situation explains away the established discrimination in ini­
tial placement.

- 43 -



Daniel C. Poster. The next level of responsibility involved 
program managers and project leaders. Only one women had ever 
been named a program manager. At the time of the filing of the 
instant law suit, of the 225 projects within NAVCOSSACT requir­
ing project leaders, 211 project leaders were male and 6 were 
female. (PTO 40.)

The above management structure remained essentially 
unchanged through the date of trial. The above all-male manage­
ment were the same officials the Court found to have discrimi­
nated against female professionals in connection with promotions. 
Defendants stipulated to facts showing the absolute and final 
control they exercised over the hiring process; *... In connec­
tion with the hiring of new personnel, the Technical Director in 
conjunction with the Commanding Officer would allocate bodies or 
positions to the various departments and these positions would 
then be filled by the Department heads." (PTO at 6 et. seq.)

(2) Deposition Testimony

The deposition testimony of Captain Warren Taylor, Captain 
Peter Swanson, Murray Silverman, Donald Arvidson, and Robert 
MacPhail graphically illustrates the reality of defendants' con­
trol over initial placement. These were admitted into evidence 
by Joint Stipulation. See note 17, supra.

- 44 -



)

The testimony of Captain Taylor, who had final authority 
for hiring at NAVCOSSACT from 1970 through 1973, leaves little 
doubt that defendants' explanation of lack of control over ini­
tial grade was pretextual. Captain Taylor testified that *[w]e 
had substantial leeway in bringing people aboard at various 
levels.* Taylor at 225. (Emphasis supplied.) Taylor 
further indicated that a- particular position might be filled at 
the "11 level or 12 level or 13 level,' depending on the 
availability of personnel. at 226. During his deposition. 
Captain Taylor was asked whether there was 'some problem in 
getting Mr. Amick (a Navy officer stationed at NAVCOSSACT) 
qualified through the Civil Service Commission in order to hire 
him at the GS-14 level at NAVCOSSACT.' at 22. Captain 
Taylor replied;

'I don't recall any great problem. If there had been such 
a problem, I would simply call up the head of CCPO or 
called up the people in OCMM or, if necessary, appeal to 
the people at the Civil Service Commission, this man was 
vitally essential for the operation of the computer, and we had to bring him aboard at whatever level was necessary 
to get him.'

at 228-229. (Emphasis supplied.)
Captain Taylor's testimony leaves little doubt that the 

X-118 standards presented no barrier to defendants' desire to 
give preferential treatment to favored candidates.

20The reference is to the deposition of Captain Taylor con­
ducted on April 26 and May 1, 1974.

- 45 -



Within a few months of becoming Commanding Officer of 
NAVCOSSACT, Captain Taylor moved Murray Silverman from his posi­
tion as a GS-14 Computer System Analyst to be the NAVCOSSACT 
chief personnel officer reporting directly to Captain Taylor. 
(PTO 1, 8.)

Captain Taylor stated at his deposition the reasons for 
his decision:

One of the best examples was in the case of Silverman. When I first arrived at NAVCOSSACT there was hardly a 
department head who considered that Silverman was worth 
his salt. They said he was a poor performer, and so forth. 
But it was fairly evident to me that Silverman might not 
be the beat analyst in the world by any means, but he had 
other merits and I believed these merits to be in an area which was obviously going to get some increased attention, 
especially commencing in about late '70 and early '71 in 
the recruitment of personnel.

So I put Silverman into a position whereby he went out 
and tried to get more people from the Commission, from 
various lists he might find. He did make a couple of trips to universities, institutions, and whatnot, and wrote a lot of letters, and he was very adept at doing certain types 
of things. I felt Silverman was very effective in that work. But I used him in that position because it takes an 
analyst to know an analyst. You can't send an engineer out and find a good systems analyst or a good programmer. 
You can't send a doctor out to find a good lawyer. So 
that is why I took a systems analyst or who purported to be one, who at least had some training in it, and who I 
could afford to put in that job because he was contributing nothing at first, but I found that he did contribute a lot 
later on.

(PTO 8, n. 4) (Emphasis supplied).

Mr. Silverman also testified that he was chiefly responsi­
ble for recruitment at NAVCOSSACT. (S 140, 146.) He would con­
sult the registers of qualified individuals maintained at the

- 46 -



Civil Service Commission and had the discretion to select indi­
viduals from among those determined to be qualified. (Silverman 
140-143.) Mr. Silverman could not recall whether he selected 
any women. The final decision as to who was going to be hired 
was made by the department head. Mr. Silverman testified that: 
"The department head would interview the individual concerned, 
make a recommendation that the man be hired, and we would create 
the paper work to effect the hiring action." (Silverman at 155, 
160, 161.) (Emphasis supplied.)

Defendants, of course, had absolute control over the prepa­
ration of the description of the position to be filled. They 
also controlled the timing for filling such positions. There is 
undisputed evidence that they had control over who learned of the 
vacancy and who applied for such a vacancy. Defendants had sub­
stantial opportunity to assist preselected males in the prepa­
ration of their SF 171s so as to ensure satisfaction of the sub­
jective X-118 standards. Clara Perlingiero testified that defen­
dants routinely assigned certain duties to favored males and then 
prepared vacancy announcements and crediting plans to ensure 
that preselected males would obtain the positions. Tr. at 243-258

A good example of both defendants' control and the subjec­
tive nature of the X-118 standards, as actually applied, is the 
hiring process with respect to Mr. Arvidson. He retired as a

- 47 -



)

Lt. Commander in the Navy after serving three years at NAVCOS-
SACT. While at NAVCOSSACT as a military officeri he performed
duties in the intelligence division. His background in computers
was "quite limited." Yet with defendants' assistance, Mr.
Arvidson was able to obtain a waiver to be hired by defendants
as a Computer Systems Analyst at a GS-13 level, a position for

22which he was not qualified. Two years later, he was promoted 
to GS-14, even though he did not develop any projects while 
working as a computer analyst. (PTO 14, 15, Arvidson 13-18, 26)

Similarly, Mr. MacPhail was stationed at NAVCOSSACT as a 
Naval Officer with the rank of Commander. Several months after 
his retirement from the military, he was hired by defendants as 
a GS-13 Computer Systems Analyst. He was placed over senior 
female professionals with much greater experience. In less than 
a year, Mr. MacPhail was promoted to GS-14. He didn't even apply 
for the promotion. He never saw any vacancy announcement. He 
didn't recall ever applying for the GS-14 Computer System Ana­
lyst's position. (PTO 15, 16; MacPhail at 41.)

22in fact, the interplay among job description, assignments to 
positions, distribution duties, allocation of training, place­ment and promotion are intertwined. Defendants' policy of hir­
ing former military officers without the necessary qualifications 
for their high grades limits the promotion opportunities avail­able to women. Thus, the appointment of Mr. Arvidson as a GS-13 
closes a promotion opportunity that would have [at least theo­
retically] been open to a woman.

- 48 -



The lack of importance of Civil Service Commission stan­
dards to the reality of NAVCOSSACT personnel policies is demon­
strated by the fact that Mr. MacPhail did not know his job title; 
nor did he remember any of the skills required for his position 
as a computer analyst. Mr. MacPhail did not remember ever 
receiving a rating from the Civil Service Commission. MacPhail 
at 46, 52, 135-137.

Again, in the case of Mr. Charles Bremmer, he was hired as 
a GS-11 after serving for three and one-half years as a Naval 
Officer at NAVCOSSACT. He was then routinely promoted at barely 
over one—year intervals to GS—12, GS—13 and GS—14. In connection 
with promotions to GS-13 and GS-14, he never saw vacancy 
announcements. He simply was asked by the Personnel Office to 
fill out the personnel papers.

The evidence is undisputed that this same group of manage­
ment officials routinely violated nondiscretionary merit selec­
tion requirements and routinely preselected males for promotions 
in an unlawful manner. (PTO 30.)

There is also further undisputed evidence that this same 
group of management officials deliberately falsified papers 
claiming that Mr. Silverman was performing as a GS-15 Computer 
Systems Analyst, when he was actually performing full-time duties 
as the Command Personnel Officer. As such, he was not eligible

- 49 -



23for promotion to GS-15. The undisputed evidence further 
establishes that he was not professionally qualified as a GS-15 
Computer Systems Analyst. (PTO 8, 9, 10, 11.)

Based on the evidence of record, the Court should enter a 
finding that defendants' proffered rationale for a lack of con­
trol in initial placement is mere pretext. The Court should 
also enter a finding that irrespective of whether plaintiffs 
prove pretext in the grade at the initial placement question, 
defendants are nevertheless liable because the subjective use of 
the X-118 standards has a disparate impact on women.

VI. THE COURT'S FINDING OF LIABILITY MET THE STANDARDS OF AIKENS

The burden of presenting a prima facie case of employment 
discrimination is "not onerous,* since the plaintiffs need only 
prove that the evidence they presented, makes it more likely than 
not that the Navy discriminated against women on the basis of 
sex. Burdine, 450 U.S. at 253. Plaintiffs established a prima 
facie case of classwide discrimination on the basis of sex by 
introducing raw statistics, multiple regressions, the Pretrial 
Order and eyewitness testimony to establish that the Navy failed 
to promote women for discriminatory reasons.

23captain Swanson testified that Mr. Silverman was at
high a grade to keep doing personnel work.* Swanson at 169,
286-287.

- 50 -



CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing Brief For 
Appellees/Respondents were served upon defendants by certified 
mail, postage prepaid, on October 6, 1989, to the following 
attorneys who appear on behalf of defendants:

Stuart E. Schiffer, Esquire 
Acting Assistant Attorney General 
United States Department of Justice 
Washington, D.C. 20530
William Ranter, Esquire 
Attorney, Appellate Staff 
Civil Division
United States Department of Justice 
Washington, D.C. 20530
Jay B. Stephens, Esquire 
United States Attorney for the 

District of Columbia Judiciary Center Building 
555 Fourth Street, N.W.
Washington, D.C. 20001
John D. Bates, Esquire 
Assistant United States Attorney 
Judiciary Center Building 
555 Fourth Street, N.W.
Washington, D.C. 20001
Michael J. Ryan, Esquire 
Assistant United States Attorney 
Judiciary Center Building 
555 Fourth Street, N.W.
Washington, D.C. 20001
Wilma A. Lewis, Esquire 
Assistant United States Attorney 
Judiciary Center Building 
555 Fourth Street, N.W.
Washington, D.C. 20001