Madsen v. Women's Health Center, Inc. Brief Amici Curiae

    No. 85-54

I n t h e

&tt$*rptm> $nw t nf %  ItnUb
October Term, 1985

L ibrary of Congress, et ah, 

v.
Petitioners,

T ommy Shaw .

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
APPEARS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR RESPONDENT

J ulius L eV qnne Chambers 
Charles Stephen R alston 

(Counsel of Record)
99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900

Attorneys for Respondent



QUESTIONS PRESENTED
1. whether pre-judgment adjustments 

to compensate for delay in payment may be 
part of the calculation of a reasonable
attorney's fee and other relief in a
Title vil case brought against the
federal aovernment under 42
U.S.C. §§ 2000e-16(c) and (d).

2. Whether 42 U.S.C. § 2000e-16
constitutes a complete abrogation of 
sovereign immunity so that the same full 
relief available in a Title VII action 
against private and state and local 
aovernment employers is also available 
against federal government agencies.

i



TABLE OF CONTENTS
Questions Presented .................  i
Table of Authorities...............  iv
STATUTES INVOLVED .................... 1
STATEMENT OF THE C A S E ...............  2
SUMMARY OF ARGUMENT.................  10
ARGUMENT

I. THERE IS NO BAR TO A DELAY 
IN PAYMENT ADJUSTMENT TO AN 
ATTORNEYS' FEE AWARD
AGAINST THE UNITED STATES . 12
A ♦________ Ad j ustments____ for
Pre-Judgment Delays In
Payment May Be Included In 
Awards Of Equitable Relief 
Against The Federal
Government In The Absence
Of Specific Statutory
Authorization.. . . . . .  14
B .______ The Inclusion of A
Factor To Compensate For 
Pre-judgment ''Delays In 
Payment Is A Necessary
Component In Calculating A 
Reasonable Attorney's Fee. . 24

II. SECTION 717 OF THE EQUAL EMPLOY­
MENT OPPORTUNITY ACT OF 1972 IS A 
COMPLETE ABROGATION OF SOVEREIGN 
IMMUNITY IN EMPLOYMENT DISCRIMI­
NATION C A S E S ................... 39



A. Congressional Intent Is
Determinative Of The Extent
Sovereign Immunity Is
Waived By A Particular
Statutory Scheme. . . . . .
B. Congress Intended To
Waive All Sovereign
Immunity Bars To The Award
of Complete .Relief In Title
VII Cases. ...............

Conclusion . . . . .  ........... . .
APPENDICES

I. Statutes Involved
II. Calculation of Loss of

Value Through Inflation
III. Memorandum of Attorney

General Griffin B. Bell for 
United States Attorneys and 
Agency General Counsel 
(Aug. 31, 1977)



TABLE OF AUTHORITIES
Page

Cases:
Albemarle Paper Co. v. Moody, 422

U.S. 405 ( 1 9 7 5 ) ............  37
Albrecht v. United States, 329 U.S.

599 ( 1 9 4 7 ) .................. 17
Alyeska Pipeline Service v.

Wilderness Soc., 421 U.S.
240 ( 1 9 7 5 ) .................. 36

Blake v. Califano, 626 F.2d 891
(D.C. Cir. 1 9 8 0 ) ...........  8

Blum v. Stenson, U.S. , 79
L.Ed.2d 891 (1984) . . . .  25, 32

Boston Sand Co. v. United States,
278 U.S. 41 (1928) . . . . .  40

Brooks-Scanlon Corp. v. United
States, 265 U.S. 106 (1924) . 17

Brown v. General Services
Administration, 425 U.S. 820
( 1 9 7 6 ) ............... 46, 50, 51

Chambers v. United States, 451 
F . 2d 1045 (Ct. Cl. 1971) . • 49

Chandler v. Roudebush, 425 
840 ( 19 7 6 ) ..........

U.S.
44, 46

Chisholm v. United States Postal 
Service, 665 F.2d 482 
(4th Cir. 1 9 8 1 ) ........... 33

iv



Copeland v. Marshall, 641 F.2d
880 (1980) . . . . . .  3,4,6,7,24

Franchise Tax Board of California 
v. United States Postal 
Service, U.S. ___, 81 L.Ed.
2d 446 ( 1984).............  39

Franks v. Bowman Transportation 
Company, 424 U.S. 747 
( 1976) ........................  54

Gautreaux v. Chicaqo Housinq 
Authority, 690 F.2d 601 
(7th Cir. 1 9 8 2 ) ........... 24

General Motors Corp. v. Devex 
Corp., 461 U.S. 648 
(1983). 15, 16, 17, 34, 35, 36, 37

Gnotta v. United States, 415
F. 2d 1271 (8th Cir. 1969) 50

Graves v. Barnes, 700 F.2d 220
(5th Cir. 1983) . . . . . .  24

Griffin v. Carlin, 755 F.2d 1516
(11th Cir. 1985). 33

Hensley v. Eckerhart, 461 U.S.
424 (1983)......  25

Holly v. Chasen, 639 F.2d 795 
(D.C. Cir. 1981), cert. 
denied, 454 U.S. 822 
(1981) . .................   8

Institutionalized Juveniles v.
Secretary of Public Welfare,
758 F.2d 897 (3rd Cir.
19 8 5 )............. . 24

v



James v. Stockham Valves &
Fitting Co., 559 F .2d 310 
(5th Cir. 1977) ......... 34

Johnson v. University College of 
the University of Alabama, 
706 F .2d 1205 (11th Cir. 
1983) ...................... 6, 24

Jorstad v. IDS Realty Trust, 643 
F . 2d 1305 (8th Cir. 1981 ) . 24

Laycock v. Parker, 103 Wis. 161, 
79 N.W. 327 ( 18 9 9 ) ......... 20

Liqgett & M. Tobacco v. United
States, 274 U.S. 215 (1927) 1 7

Nagy v. United States Postal
Service, 773 F.2d 1190 (11th 
Cir. 1985) ..................  40

Nedd v. United Mine Workers of 
America, 488 F. Supp. 1208 
(M.D. Pa. 1 9 8 0 ) ......... 19, 20

Newman v. Piqaie Park Enterprises,
390 U.S. 490 (1968) . . . .  26, 38

Parker v. Califano, 561 F.2d 320
(D.C. Cir. 19 7 7 )..........  26

Parker v. Lewis, 670 F.2d 249
(D.C. Cir. 1 9 8 2 ) ..........  5

Phelps v. United States, 274 U.S.
341 (1927)...................  17

Ramos v. Lamm, 713 F.2d 546 (10th
Cir. 19 8 3 ).................  24

vi



Saunders v. Claytor, 629 F.2d 596
(9th Cir. 1980), cert, denied,
450 U.S. 980 (1981 ) . . .  . 9, 33

Seabord Air Line R. Co. v.
United States, 261 U.S. 299 
( 19 2 3 )...................  17, 18

Shultz v. Palmer, (No. 85-50) 33
Smith v. Califano, 446 F. Supp.

530 (D.D.C. 1978) . . . . .  53
Smith v. Phillips, 455 U.S. 209

( 1982)...................  10
Standard Oil Co. v. United States,

267 U.S. 76 (1925) . . . . .  41
Teamsters v. United States, 431

U.S. 324 ( 1977)..........   36
United States v. New York Tele­

phone Co., 434 U.S. 159 (1977) 10
United States v. North American

Transportation and Tradinq Co.,
253 U.S. 330 (1920) . . . . . . 18

United States v. Sherman, 98 U.S.
565 ( 1878)...............  21 , 22

United States v. Testan, 424 U.S.
392 ( 1976).................  49

Waite v. United States, 282 U.S.
508 ( 1931 ) ........... 16, 17, 36

vii



Statutes, orders, and regulations:
Equal Access to Justice Act . . . .  56
5 U.S.C. § 5596(b).............  49
5 U.S.C. <? 7701 (g) (2) . . . .  . 53
28 U.S.C. § 2516 . . . .  1, 10, 14, 23
42 U.S.C. § 2000e-5(q)......... 54, 55
42 U.S.C. § 2000e-5 (k ) ......... 44, 57
42 U.S.C. § 2000e-16 ...........  Passim
P.L. 88-352, § 701(b)........... 48
P.L. 96-481 , § 206 ........... . 56
42 Stat. 1590, ch. 192 (5-15-22) . 40
Executive Order 11246 ...........  48
Executive Order 11478 ......... . 48
President's Reorganization Plan

No. 1 of 1978, 43 F.R. 28 71 
( 1 9 7 8 ) ...................... 52

5 C.F.R. Part 713 ( 1 9 6 7 ) ......... 48
5 C.F.R. § 1201.37 ...............  53
29 C.F.R. Part 1613 .............. 48
29 C.F.R. § 1613.271(c)......... 53

viii



Other Authorities:
"Counsel Fees in Public Interest 

Litigation", Report By the 
Committee on Legal Assistance,
39 The Record of the Associa­
tion of the Bar of the City of 
New York 300 (1984) . . . .  25, 29

The Effect of Legal Fees on the 
Adeauacv of Representation, 
Hearings Before the Sub­
committee on Representation 
of Citizen Interests of the 
Committee on the Judiciary,
United States Senate, 93rd 
Cong., 1st Sess. (1973) . . 27

Hearings Before the General
Subcommittee on Labor of
the House Committee on
Education And Labor on
H.R. 1746, March 3, 4, and
18, 1971 .................  48, 51

Hearings Before the Subcommittee 
on Labor of the Senate 
Committee on Labor and Public 
Welfare, on S. 2515, S.2617, 
and H.R. 1746, Oct. 4, 6, 
and 7, 1971 ...............  50, 51

Hohenstein, "Subtract Inflation
from Your Income, Prices and 
Profits," Legal Economics 35 
(ABA Section on Economics of
Law Practice, Summer 1978) 1b

H. Rep. No. 92-238 (92d Cong. 1st
Sess., 1971) ...............  43

IX



Letter from Irving Jaffe, Acting
Assistant Attorney General, to 
Senator John V. Tunney, May 6,

. 1975, 2 CCH Employment Practices 
Guide 5327 ( 1 9 7 6 ) ......... 57

Memorandum of Attorney General 
Griffin B. Bell for United 
States Attorneys and Agency 
General Counsel (Aug. 31,
1977), 2 CCH Employment
Practices Guide 1f 5046
(1977), ....................  59, 60

Note, "Interest in Judgments
Against the Federal Government:
The Need for Full Compensation,"
91 Yale L.J. 297 (1981) . . . .  20

1 Op. Atty. Gen. 268 (1819) . . . .  21
2 Op. Atty. Gen. 390 (1830) . . . .  22
5 Op. Atty. Gen. 138 (1849) . . . .  22
5 Op. Atty. Gen. 227 (1850) . . • . 22
Ralston, "The Federal Government 

as Employer: Problems and
Issues in Enforcing the Anti- 
Discrimination Laws," 10 Ga. L. 
Rev. 717 ( 1 9 7 6 ) .............  57

3. Rep. No. 92-415 (92d Cong. 1st
Sess., 1 9 7 1 ) ......... 34, *3, 45

Ft. Rep. No. 94-1558 (94th Conq.
2d Sess. 1976) . . . .  27, 28, 34

x



S. Rep. No. 94-1011 (94th Cong. 2d
Sess. 1 9 7 6 )............. .. . 27

Schlei & Grossman, Employment
Discrimination Law, (2d Ed.
1 9 8 3 ) ...................... 36, 47

Subcommittee on Labor, Senate
Committee on Labor and Public 
Welfare, "Legislative History 
of the Equal Employment Oppor­
tunity Act
of 1972" . . .  45, 51, 52, 53, 55

United States Dept, of Labor, Bureau 
of Labor Statistics, Monthly 
Labor Review, May, 1985 . . .  2b

xi



No. 85-54

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1985

LIBRARY OF CONGRESS, et a.I. ,
Petitioners

v.
TOMMY SHAW

On Writ of Certiorari to The 
United States Court of Appeals 

for the District of Columbia Circuit

BRIEF FOR RESPONDENT 

STATUTES INVOLVED
In addition to those in petitioners' 

brief, this case involves the following 
statutes, the text of which are set out in 
the appendix to this Brief:

42 U.S.C. § 2000e-16(a )-(c )
28 U.S.C. § 2516(a).



2

STATEMENT OF THE CASE 
In general, petitioners' description 

of the proceedings below is accurate. 
Respondent does wish to emphasize a number 
of points regarding the context in which 
issue now before the Court arose.

This action began with the filing of 
an administrative complaint charging 
discrimination in employment against 
respondent Tommy Shaw, an employee of the 
Library of Congress. After respondent 
retained counsel, a settlement of his 
claim was negotiated. However, the
agency, on advice from the Comptroller 
General, took the position that it could 
not agree to an award of back pay. This 
ruling, which the district court noted was 
caused by the Library's failure to make it 
clear that the claim arose under Title 
VII, necessitated the filing of the



3

present action. Order and Judgment of the 
District Court, Sept. 14, 1979; Pet. App. 
p. 59a-60a. The government continued to 
argue that an award of back pay was not 
possible when a federal employee's claim 
of discrimination was settled administra­
tively, but the district court ruled for 
the respondent and against the government 
on cross-motions for summary judgment. As 
a result of these proceedings, respondent 
received a promotion and an appropriate 
amount of back pay.

As petitioners note, at issue in this 
case now are the fees remaining to be paid 
to one of the respondent's attorneys for 
work done as far back as 1978. The fee 
award was not made by the district court 
until 1980 since it decided to await the 
en banc decision of the Court of Appeals 
of the District of Columbia in Copeland v. 
Marshall r 641 P.2d 880 (1980), which



4

established definitive standards for
awards of fees in Title VII cases in the
District, particularly in cases involving
the federal government. The government
made no objection to delaying the fee

1
disposition until Copeland was announced.

As the district court noted when it
made its award, the government neither
disputed respondent's entitlement to fees

2nor much of the amount to be awarded.
 ̂ The district court entered its judgment on 

the merits on September 14, 1979. In that 
order it announced its intention to await 
the en banc decision in Copeland. See, 
Order and Judgment of the District Court, 
filed September 14, 1979. Copeland was 
announced in September, 1980.

2 The government argued that a proper hourly 
rate would be $60. It was not precise, 
however, with regard to the number of 
hours for which fees should be awarded, 
but only suggested that the 103.75 hours 
claimed should be reduced " significantly. " 
See, Defendant's Memorandum of Points and 
Authorities In Opposition to Shalon 
Ralph's Motion for Attorney's Fees, pp. 
3-5; 7-8. The district court subtracted 
only 4.75 hours, for time spent on an 
issue on which respondent did not prevail, 
and awarded fees for a total of 99 hours. 
Pet. App. pp. 63a-64a. The government did 
not dispute this result on appeal.



5

Nevertheless, in keeping with its long­
standing practice, the government did not 
offer to pay that part of the fee that was 
undisputed. (Pet. App. p. 68a.) Indeed, 
payment of the undisputed amount was not 
made until the present appeal was pending 
and, then, it was a consequence of a 
decision of the court of appeals in 
another case, Parker v. Lewis, 670 F . 2d 
249 (D.C. Cir. 1982), requiring payment of 
the undisputed portions of a fee award 
pending appeal.^ The Parker rule was 
premised on the need to avoid delays in 
payment and consequent hardships to Title 
VII plaintiffs and their attorneys.

The court of appeals did, as recited in 
its opinion (Pet. App. p. 6a, n. 24), 
order payment of $6,779.50, the undisputed 
amount. However, the parties had pre­
viously entered into a stipulation for 
such payment in the district court based 
on Parker v. Lewis, supra. See, Stipula­
tion to The Entry of An Order to Enforce 
In Part the Judgment Awarding Counsel Fees 
and Costs.



Copeland squarely held that in
actions against the federal government
delay in payment must be factored in when
calculating a reasonable fee. 641 F.2d at
893. Thus, the district court followed
Copeland and used one of the methods set
out in that decision to arrive at an

4appropriate amount for the delay. As 
petitioners note in their brief, the 
correctness of the district court's 
calculation is still in dispute, since the 
court of appeals remanded for clarifi­
cation whether the hourly rate awarded 
already included compensation for delay.

Three methods to compensate for delay are: 
(1) the use of hourly rates current at the 
time the award is made; (2) adjusting the 
rates by year by an appropriate amount so 
as to adjust for inflation; (3) adjusting 
the lodestar amount by an appropriate 
factor. See Johnson v. University College 
of the University of Alabama, 706 F.2d 
1205, 1210-11 (11th Cir. 1983). The 
district court used the third method.



7

In addition to the en banc decision in 
Copeland, panels of the court of appeals 
had held that fees in Title VII actions 
against federal agencies fees should be 
adjusted for delay in payment. Thus, when 
the present case arrived in the court of 
appeals, there was already an en banc 
decision and at least three panel deci­
sions of that court that squarely held 
that the district court was correct in 
including a delay factor. Counsel for 
respondent in the court of appeals (who 
are also counsel here) not surprisingly 
relied on the clear law of the circuit to 
support the judgment of the district 
court. Since there was no need to go 
beyond the settled law of the circuit, 
they did not argue at length the issues of

The court below noted "the seemingly clear 
applicability of these precedents" but 
decided not to rest "on stare decisis 
alone." Pet. App. p. 9a.



8

waiver of sovereign immunity and other
matters presented now. Thus, the argument
made was essentially that the calculation
of a reasonable attorney's fee necessarily
included compensation for delay in
payment, an argument accepted even by the
dissenting judge below.

Moreover, panel decisions of the court
of appeals had also held that cost of
living adjustments were not available on

6backpay awards against the government
and that interest qua interest could not

7be assessed on a fee award. Again, since 
the state of the law in the circuit 
established the correctness of the 
district court's decision, counsel for

Blake v. Califano, 626 F.2d 891 (D.C. Cir.
1980) .
Holly v. Chasen, 639 P.2d 795 {D.C. Cir.
1981) , cert, denied, 454 U.S. 822 (1981).

7



-  9

respondent (appellee there) did not feel
it either necessary or desirable to raise

8these other issues.
If the government's suggestion to the 

court of appeals for rehearing e_n banc in 
the present case had been granted, 
respondent would, of course, have raised 
and relied upon all of the arguments made 
herein to support the judgment of the 
district court. Thus, the government's 
attempt (Pet. Brief, p. 18) to make some­
thing out of counsel’s decision not to 
raise these questions before a panel of 
the court below when such issues were 
decided by its earlier decisions is

As we have already noted in our Brief in 
Opposition to the Petition for Writ of 
Certiorari, we believe that the decisions 
of lower courts holding that back pay 
awards cannot be adjusted for inflation in 
cases against the federal government are 
incorrect. See infra at pp.35-38. Indeed, 
that precise issue was presented to this 
Court in Saunders v. Claytor, 629 F.2d 596 
(9th Cir. 1980), cert, denied, 450 U.S. 
980 ( 1981 ), but this Court has not 
resolved the issue to date.



10

without substance. Of course, respondent 
may rely here on any ground in support of 
the judgment below. United States v. New 
York Telephone Co., 434 U.S. 159, 166, n. 
8 (1977); Smith v. Phillips, 455 U.S. 209, 
215, n. 6 (1982).

SUMMARY OF ARGUMENT
I.

A. There is no sovereign immunity or 
statutory bar to awards of pre-judgment 
interest, or its equivalent, against the 
United States where it is necessary to 
provide complete equitable relief. The 
cases the government relies on, as well as 
28 U.S.C. § 2516, involve post-j udgment 
interest, the purpose of which is entirely 
different. Decisions of this Court make 
the distinction clear and hold that 
pre-judgment interest may be made in the 
absence of specific statutory authority.



- 11 -

B. In calculating a reasonable 
attorneys' fee, factoring in amounts to 
compensate for delays in payment is 
essential. Without such an adjustment, a 
prevailing plaintiff's attorney will in 
fact be awarded less than a market rate. 
The result will be that attorneys will be 
discouraged from representing federal 
employees who have Title VII claims. 
Therefore, pre-judgment interest or its 
eouivalent is appropriate in awards of 
fees against the United States.

II.
A. The extent of a waiver of sov­

ereign immunity is a matter of Congres­
sional intent. Whether interest on awards 
against the government is permissible must 
be determined from the purpose of the 
particular statutory scheme.



12

B. Both the language of 42 U.S.C. 
§ 2000e-16 and its legislative history 
make it clear that Congress intended to 
remove all sovereign immunity bars to the 
granting of full relief to federal 
employees who have equal employment 
claims. The statute itself explicitly 
provides that attorneys' fees are to be 
awarded on the same basis as against "a 
private person."

ARGUMENT
I.

THERE IS NO BAR TO A DELAY IN PAYMENT 
ADJUSTMENT TO AN ATTORNEYS' FEE AWARD 
AGAINST THE UNITED STATES

This case, in the government's view, 
involves no more than whether the word

t
"interest" can be found somewhere in the 
provisions of Title VII that apply to the 
United States. We will demonstrate that:



-  13

1 . A long line of decisions of this 
Court establishes that, even in the 
absence of specific statutory authoriza­
tion, pre-j udgment adjustments that 
compensate for delay in payment and/or 
deprivation of the use of funds -—  whether 
denominated "pre-judgment interest" or 
otherwise -- are available against the 
government to provide full compensation as 
part of equitable relief.

2. The inclusion of a delay in 
payment factor, as in this case, is a 
necessary component of a reasonable 
attorney's fee. Since the adjustment is 
necessary to provide full compensation, it 
is available here as a matter of legis­
lative intent, consistent with the Court's 
precedents.

3. Alternatively, there is no 
sovereign immunity bar to an award of 
interest against the government in a Title



14

VII action because 42 U.S.C. §2000e-16 is 
a complete abrogation of sovereign 
immunity. Congress' clear intent was to 
ensure that employees of the United States 
will enjoy the same scope of protection 
from employment discrimination as do all 
other employees. Therefore, Title VII is_ 
a statute that authorizes interest as part 
of complete relief.

A. Adjustments For Pre-judgment Delays 
In Payment May Be Included In
Awards Of Equitable Relief Against 
The Federal Government In The Absence 
of Specific Statutory Authority.'

The petitioners argue that decisions 
of this Court, as codified in 28 U.S.C. 
§ 2516, stand as an absolute bar to any 
inclusion of a delay in payment factor in 
calculating the value of a fee award 
because the word "interest" does not 
appear in Title VII. However, a close 
examination of the cases cited by the



15

government demonstrates that they do not 
support this proposition. Rather, 
precisely the opposite is true; the 
government has been led into a fatal error 
by its failure to distinguish between the 
nature and purpose of pre-j udgment 
interest, which is involved here, and 
post-judgment interest, which is not.

In General Motors Corp. v. Devex 
Corp. , 461 U.S. 648 ( 1983), the Court 
explained that, in a patent infringement 
case, an award of prejudgment interest 
from the time that the royalty payments 
would have been received to the time of 
the judgment, "merely serves to make the 
patent owner whole, since his damages 
consist not only of the value of the 
royalty payments but also of the forgone 
use of the money between the time of 
infringement and the date of the judg­



16

ment." Therefore, prejudgment interest 
should ordinarily be awarded. 461 U.S. at 
655-56.

The Court went on:

This very principle was the 
basis of the decision in Waite 
v. United States, 282 U.S. 508 
(1931), which involved a patent 
infringement suit against the 
United States. The patent owner 
had been awarded unliquidated 
damages in the form of lost 
profits, but had been denied an 
award of prejudgment interest. 
This Court held that an award of 
prejudgment interest to the 
patent owner was necessary to 
ensure "complete justice as 
between the plaintiff and the 
United States," id., at 509 , 
even though the statute govern­
ing such suits did not expressly 
provide for interest^

461 U.S. at 656 (emphasis added). In 
Waite itself, Justice Holmes noted that 
the statute at issue granted "'recovery of 
[the plaintiff's] reasonable and entire 
compensation for such use.' We are of



- 17

opinion that interest should be allowed in 
order to make the compensation 'entire'". 
282 U.S. at 509.9

Waite cites and relies upon a series 
of decisions in eminent domain actions 
holding that the Fifth Amendment's "just 
compensation" clause includes compensation 
for delay between the time of the determi­
nation of market value of the property and 
when the award is made. Seaboard Air Line 
R. Co. v. United States, 261 U.S. 299 
(1923); Brooks-Scanlon Corp. v. United 
States, 265 U.S. 106, 126 (1924); Liggett 
& M. Tobacco Co. v. United States, 274 
U.S. 215 (1927); Phelps v. United States, 
274 U.S. 341 (1927). See also Albrecht v. 
United States, 329 U.S. 599 (1947), and 
cases cited icLat 602, n. 4. As explained 
in General Motors Co. v. Devex, supra,
q” ■Interestingly, in Waite the government 

conceded that pre-judgment interest was 
proper.



- 18 -

without such an adjustment the patent or 
property owner will not in fact be fully 
compensated for the value of his property 
and the loss of its use. Thus, "no 
specific command to include interest is 
necessary when interest or its equivalent 
is a part of [just] compensation." Seaboard 
Air Line R. Co. v. United States, 261 U.S. 
at 306.10

The situation here is precisely 
analogous. The government contends that 
reimbursement for attorneys' fees is 
limited to the dollar amount that was the 
market value of the services at the time

In contrast, the rule is that interest is 
not available in the absence of specific 
statutory provision when land is taken 
through purchase or a contract rather than 
by an adverse condemnation proceeding. 
See, e.g., United States v. North American 
Transportation & Trading Co., 253 U.S. 330 
(1920). In the former case the interest 
is on the established amount agreed upon 
as proper compensation, and therefore has 
the character of post-judgment interest. 
In the latter case, the interest is 
pre-judgment and is therefore part of the 
calculation of just compensation.



-  19

they were rendered. As we will demonstrate 
at length below, however, full compensa­
tion can only be made through an adjust­
ment of that dollar amount to reflect loss 
of value because of the passage of time.

The inclusion of pre-judgment 
interest as part of the award of full 
relief is well established in federal law. 
See Nedd v. United Mine Workers of 
America, 488 F. Supp. 1208, 1216-25 (M.D. 
Pa. 1980) for a scholarly and comprehen­
sive survey of the cases. An award is 
left to the court's sound discretion based 
on the weighing of four factors: (1) 
responsibility for delays in prosecuting 
an action; (2) undoing unjust enrichment; 
(3) compensation of the victim of a legal 
wrong; and (4) other equitable considera­
tions. Ld. at 1220-24. The key to 
pre-judgment interest is that it is a part 
of the calculation of the judgment itself,



20

and is included when it is necessary to 
provide "reasonable", "entire", or "just" 
compensation.

Post-j udgment interest, on the other 
hand, rests on an entirely different 
basis. The traditional rationale for 
assessing post-judgment interest was to 
punish a debtor for failing to repay a 
loan or another certain obligation the 
amount of which had become fixed, such as 
a judgment of a court. Laycock v. Parker, 
103 Wis. 161, 179, 79 N.W. 327, 332 
(1899). See, Note, "Interest in Judgments 
Against the Federal Government: The Need 
for Full Compensation," 91 Yale L.J. 297,

1 1 As Nedd points out, the common law 
distinction between liquidated and 
unliquidated damages does not determine, 
under federal law, whether pre-judgment 
interest is available. 488 F. Supp. at 
1217. The government's suggestion to the 
contrary (Pet. Brief, p. 23, n. 13) is 
both incorrect and inconsistent with its 
position that fee and back pay awards 
against private employers may be adjusted 
for delay in payment.



21

300-1 (1981). The no-interest rule 
developed when interest was thus viewed as 
a penalty. Sovereign immunity barred an 
award of interest since the government had 
to give its specific consent to being 
penalized. As this Court explained:

Whenever interest is allowed 
either by statute or by common 
law, except in cases where there 
has been a contract to pay 
interest, it is allowed for delay 
or default of the debtor. But 
delay or default cannot be 
attributed to the government. It 
is presumed to be always ready to 
pay what it owes.

United States v. Sherman, 98 U.S. 565,
567-8 (1878).

Thus, the 1819 Attorney General's 
opinion from which the no-interest rule 
derives involved interest on a claim in a 
pre-determined amount. The opinion notes, 
"Interest is in the nature of damages for 
withholding money which the party ought to 
pay, and would not or could not." 1 Op.



22

Atty. Gen. 268 (1819). Indeed, even the 
opinions of the attorney general upon 
which the government relies recognize that 
in some instances interest is recoverable 
where it is necessary for full compensa- 
t ion, e,g. , where a "claimant shall have 
paid interest; in which case, indeed, 
interest becomes strictly a portion of the 
principal of his claim." 2 Op. Atty. Gen. 
390, 392 (1830). See also, 5 Op. Atty. 
Gen. 1 38 ( 1 849); 5 Op. Atty. Gen. 226 
(1850). United States v. Sherman also 
recognizes the distinction, noting, "the 
interest is no part of of the amount 
recovered. It accrues only after the 
recovery has been had." 98 U.S. at 567.

Similarly, virtually all of the cases 
cited by the petitioners at pages 13—15 of 
their brief involved the award of ordinary 
post-judgment interest. They simply 
apply the rule that a penalty for failure



23

to pay an established debt could not be 
imposed on the government without its 
consent. And, as the government concedes 
here, 28 U.S.C. § 2516(a) and its prede­
cessors, barring interest on "claims 
against the United States" in the absence 
of contract or specific statutory authori­
zation, did no more than codify the rule 
established by the attorney generals1 
opinions and the post-judgment interest 
cases.

Thus, it can be seen that the
Government has failed to recognize the
distinction between ordinary interest of 
the pos t-j udgment kind contemplated by 28 
U.S.C. § 2516, which serves as a penalty 
or as income for the use of money fol­
lowing a delay in the satisfaction of a 
judgment, and prejudgment interest (or 
other similar factors) which represents 
part of the calculation of full relief in



24

the first instance. The cases upon which 
the government relies involve the former 
type of interest. This case involves the 
latter.

B . The Inclusion Of A Factor To Compen-
sate For Pre-judgment Delays In
Payment Is A Necessary Component In
Calculating A Reasonable Attorney ' s
Fee.

Section 2000e-5(k) provides that the 
court, in its discretion, shall award a 
reasonable attorney's fee. The lower 
courts have held, so far without excep­
tion, that in civil rights cases compen­
sation for delay in payment must be

1 2included in a reasonable fee. The

See, e.g., Copeland v. Marshall, 641 F. 2d 
at 892-93; Institutionalized Juveniles v. 
Secretary of~Public Welfare, 758 F.2d 897 
( 3rd Cir. 1985) ; Graves v. Barnes, 700 
F.2d 220, 224 (5th Cir. 1983); Gautreaux 
v. Chicago Housing Authority, 690 F.2d 
601, 612 (7th Cir. 1982);"Jorstad v. IDS 
Realty Trust, 643 F.2d 1305, 1313 (8th 
Cir. 1981); Ramos v. Lamm, 713 P.2d 546, 
555 (10th Cir. 1983); Johnson v. Univer- 
sity College of the University of Alabama, 
706 F.2d 1205, 1210-1 1 ( 1 1th Cir. 1983).



25

government has not directly challenged the 
correctness of those decisions insofar as 
fees are to be calculated against every 
other employer except itself. Neverthe­
less, it is essential to understand why 
such an adjustment is a prerequisite to a 
reasonable fee in order to demonstrate the 
fallacy of the government’s mechanical 
equation of all pre-judgment adjustments 
with post-judgment interest.

The legislative purpose of the various 
civil rights attorneys’ fees act statutes 
have been explored at length by this Court
in recent decisions and need not be

13repeated in detail here. Suffice it to 
say that a key concern of Congress was

See also "Counsel Fees in Public Interest 
Litigation," Report By the Committee on 
Legal Assistance, 39 The Record of the 
Association of the Bar of the City of New 
York 300, 318 ( 1984).

 ̂̂  Hensley v. Eckerhart, 461 U .S . 4 24
(1983); Blum v. Stenson, U.S.
79 L.Ed.2d 891 (1984).

f



26

that if the fees that were available were 
insufficient to attract the private bar, 
there would not be an adequate level of 
private enforcement of Title VII and the 
other civil rights acts. As this Court 
noted in its seminal decision in Newman v. 
Piggie Park Enterprises, 390 U.S. 490 
(1968) the resources of the federal 
government itself were simply insufficient 
for the level of enforcement necessary to 
end the problem of racial discrimination 
in our society. Thus, the statute provided 
fees to ensure that "private attorneys 
general" would furnish the essential level 
of private enforcement.

The problem is even more acute when 
the government is a defendant in a Title 
VII case for, as has been noted in another 
context, there is no public attorney 
qeneral to bring actions on discrimina­
tion claims of federal employees. Parker



-  27  -

v. Califano, 561 F.2d 320, 331 (D.C. Cir.
1977). Only private parties may bring
such actions and, therefore, without the
full involvement of the private bar the
statute will not be enforced.

In the legislative history of the
Civil Rights Attorneys Fee Act of 1976
Congress expressed these concerns at
length. Thus, there is a consistent
theme that unless fees are sufficiently
attractive to attact the private bar there
will be insufficient enforcement.14 15

The legislative history of the Fees
Act is replete with comparisons between
the situations of plaintiff's attorneys
and defendant's attorneys in civil rights 

1 5cases. Ordinarily a defendant, particu­

14 See S. Rep. No. 94-1011 (94th Cong. 2d
Sess. , 1976), 2-5; H. Rep. No. 94-1558
(94th Cong. 2d Sess., 1976), 2-3).

15 H. Rep. No. 94-1558, supra at 7; The 
Effect of Legal Fees on the Adequacy of 
Representation, Hearings" Before’ ""'the 
Subcommittee ~oF~Ripre¥elTtaFIon~~oT~C I tTzerT



28

larly when it is a public agency, has
available far greater resources than the

1 6ordinary civil right litigant. Indeed, 
this case is paradigmatic: a single
middle-class federal employee faced with 
the full array of the legal and technical 
resources of the Library of Congress and 
the Department of Justice.

Such plaintiffs typically cannot pay 
attorney's fees at all or, as here, only 
a limited amount. Thus, the attorney must 
look to the possible award of fees in the 
future for compensation. If the eventual 
award is not sufficiently equivalent to 
fees the attorney could have obtained 
through other types of practice at the 
time the services are rendered, there will 
be a "negative incentive to move away from 16

Interests of the Committee on the Judi­
ciary, United States Senate, 93rd Cong., 
1st Sess. at 84; 834-36 (1973).

16 H. Rep. No. 94-1558, supra at 7.



29

civil rights litigation and to concentrate
efforts on more profitable aspects of the 

1 7practice."
The disincentives are particularly 

strono for the typical civil rights 
lawyer, who tends to be a single practi­
tioner or in a small firm. Given the 
realities of paying off the massive loans 
incurred to obtain a law degree and to set 
up practice, paying rent, staff salaries, 
and having enough left over to live on, 
taking on a complex civil rights case must 
be economically feasible for such a 
lawyer.

To aive an example, assume an
attorney in 1975 with the choice of
accepting: (1 ) a fee-paying client whom
he could bill at his or her established 
market rate of S 80 per hour, monthly; or

Counsel Fees In Public Interest Litiga­
tion, op. cit. supra, n. 12, at 318, 
325-26.



30

(2) a civil rights client for whose case 
he or she would receive no fees until a 
court award five years later in 1980. If, 
in 1980, the lawyer received only the same 
$80 per hour, he or she would have to be 
extraordinarily altruistic to take on 
client number two, wait five years, and 
receive an $80 per hour devalued by 
inflation and the loss of the use of that 
money. There must be some basis to 
encourage him or her to take the second 
client over the first or Congress' intent 
will be thwarted entirely.

In order for the lawyer to be paid 
at a rate ecruivalent to the $80 market 
rate in 1 975 he or she must be able to 
receive $ 1 22.40 per hour in 1 9 8 0 . This 
larger amount will do no more than 
compensate the lawyer at the same effec-

18 A simple calculation based on the Consumer 
Price Index is set out in detail in 
appendix II to this Brief at pp. 2b-3b.



31

tive rate as he or she would have

received in 1975 dollars. Even that would

not cover the full value of the money, for

the lawyer (or fee-paying client) has lost

the value of the use of that money in the

interim, and has suffered attendant cash
1 qflow problems. ' Accordingly,, the 10% 

adjustment per year ordered by the 

district court on the basis of the rate

available on Treasury bonds, is the least
20that counsel was entitled to.

' For example, consider what counsel would 
have had to spend to borrow sufficient 
money to pay his or her 1975 bills in 
reliance on a fee to be awarded in 1980. 
With commercial interest rates in the 8 to 
15% range, eighty 1975 dollars would have 
cost about $155 by 1980.

2 0 Of course, the court should have compoun­
ded the interest rather than simply 
multiplying it by the number of years 
passed. The court's mathematical error, 
however, only results in a difference of 
about $2.50 per hour in the government's 
f avor.



32

Put in another way, paying the 
attorney $80 per hour in 1980 would be the 
same as if he or she had been paid $52 in 
1975.21 Since the lesser amount is substan­
tially below the established market rate, 
it can not, a fortiori, be a reasonable 
fee under this Court's decision in Blum v.
Stenson, ___  U.S. ___, 79 L.Ed. 2d 891
{ 1984).

Unfortunately, it is not unusual in 
civil rights cases, particularly in Title 
VII cases involving the federal govern­
ment, for the entire process from the 
beginning of the administrative process 
through final decision in court on the 
merits, to take many years. Many of

See Appendix II to this Brief at p. 3b.
For example, present counsel are involved 
in one case against the Postal Service 
begun by the filing by an administrative 
complaint in 1971 and which was filed in 
court in 1972. The case did not go to 
trial until 1982, and a decision adverse 
to plaintiffs was reversed by the court of 
appeals in 1985. The case is now back in



33

these cases began in the mid-1970's and 

the impact of the high rate of inflation 

in the latter part of that period was 

severe.

Congress was aware of the problem of

delay in payment when it enacted the 1976

Pees Act. Thus, it contemplated interim

fees in appropriate cases because civil
23rights litigation was often protracted. * 19

the trial court for further proceedings, 
If plaintiffs were to win on the merits in 
1986 there would be potential entitlement 
to attorneys' fees going back as far as 
1972. See, Griffin v. Carlin 755 F.2d 
1516 ( 1 1 th Cir"I “9857: Griffin is not 
unusual. See, Chisholm v~. United States 
Postal Service, 765 F: 2d 482 (4th Cir.
19 81) (nine years from administrative 
complaint to final disposition of merits) ; 
Saunders v . Claytor, 629 F. 2d 596 (9th 
C ir. 1 9 8 0) (six years between illegal 
d i scharge and award of back pay and 
attorneys' fees); Shultz v. Palmer (No. 
85-50) (eight years between initial charge 
and award of fees on that port ion of the 
case that was settled).

H. Rep. No. 94-1558, supra at 8. The 
legislative history of the Equal Employ­
ment Opportunity Act of 1972 also reflects 
Congress' awareness of the limited 
resources of Title VII plaintiffs and the 
problem of time delays attendant to such



34

As one court has noted, the risk of 
financial drain will discourage the 
bringing of Title VII suits and defendants 
"may be tempted to seek victory through an 
economic war of attrition against the 
plaintiffs." James v. Stockham Valves & 
Fitting Co., 559 F.2d 310, 358-59 (5th 
Cir. 1977).

Thus, the reasons discussed supra at 
pp. 15-20 that make pre-judgment interest 
ordinarily available in patent cases apply 
with full force to awards of attorneys' 
fees, since the impact of delay is the 
same. Full compensation cannot be 
achieved unless the value of the "forgone 
use of the money" between the time fees 
are incurred "and the date of the judg­
ment" (General Motors Corp. v. Devex, 461

litigation. Sen. Rep. No. 92-415 (92d 
Cong. 1st Sess., 1971) p. 17.



35

U.S. at 656) is taken into account. Just 
as in a patent infringement case, denying 
pre-j udgroent interest to a prevailing 
Title VII plaintiff "not only undercompen­
sates [the employee] but also may grant a 
windfall to the [discriminator] and create 
an incentive to prolong litigation." 461 
U.S. at 655 n. 10.

For similar reasons, the Court should 
reject the government's contention that a 
rule that fees may be adjusted for delay 
in payment would be incongruous because 
it is "settled law," that backpay awards 
cannot be so adjusted. (Pet. Brief, pp. 
20-21). There are three things wrong with 
this argument. First, if anything is

24

This is the case whether the client has 
paid the attorney as the case progressed, 
or whether the fee was delayed in whole or 
in part until the action was successfully 
concluded. In the former instance, the 
plaintiff will not be made whole unless 
compensated for delay; in the latter, the 
attorney will not otherwise receive a 
reasonable fee.



36

"settled" it is that nothing is "settled
law" until this Court has spoken on the 

2 5question. This Court has never deter­
mined whether the lower courts have been 
correct in holding that back pay awards 
against the federal government cannot be 
adjusted for delay in payment. See, Schlei 
and Grossman, Employment Discrimination 
Law, 1214 n. 175 (2d Ed. 1983).

Second, it is clear that the princi­
ples enunciated in General Motors Corp. v. 
Devex,(GMC) supra, and Waite v. United 
States, supra, apply fully to back pay 
awards. As GMC makes clear, "the standard 
governing the award of prejudgment
interest . . . should be consistent with
Congress' overriding purpose of af-
_ _

See, e,g. , Alyeska Pipeline Service v. 
Wilderness Soc., 421 U.S. 240, 270, n. 46 
(1975) (overruling thirteen lower court 
decisions on attorneys' fees) and Team- 
sters v. United States, 431 U.S. 324, 378 
n. 2 (1977) (overruling more than thirty 
decisions by six courts of appeals).



37

fording . . . complete compensation." 461 
U.S. at 655. That purpose is to place the 
patent owner "in as good a position as he 
would have been in" if there had not been 
a violation. Ibid. This purpose is, of 
course, precisely the same purpose 
Congress had when it provided for equi­
table make-whole relief in the form of 
back pay in Title VII cases. Compare GMC 
v. Devex, 461 U.S. at 655-656 (prejudgment 
interest necessary to "make the patent 
owner whole" and to ensure "complete 
justice between the plaintiff and the 
United States") with Albemarle Paper Co. 
v. Woody, 422 U.S. 405, 418 (1975) (back 
pay an equitable remedy necessary to "make 
persons whole for injuries suffered on 
account of unlawful employment discrimi­
nation" and "to secure complete justice").



38

Third, as we will now demonstrate, 
Congress intended by § 2000e-16 to 
abrogate sovereign immunity in its 
entirety in Title VII actions against the 
government. Therefore, federal employees 
are entitled the same full relief with 
regard to both attorneys' fees and back 
pay as are all other employees.^

The government's asserted dichotomy 
between back pay as benefiting the 
discriminated against employee and 
attorneys' fees as benefiting the lawyer 
is also simply wronq. The provision that 
fees are to be paid by the defendant is 
for the benefit of the prevailing civil 
rights plaintiff just as much as is the 
provision of back pay. Congress and this 
Court recognize that without the possibil­
ity of fee-shifting, attorneys would not 
be available; without attorneys there will 
be no civil rights plaintiffs to recover 
back pay. See Newman v. Piggie Park 
Enterprises, Inc., supra. For those 
clients who can pay fees, their recovery 
is as much make whole relief as is the 
recovery of back pay.



39

II.

SECTION 717 OF THE EQUAL EMPLOYMENT 
OPPORTUNITY ACT OF 1972 IS A COMPLETE 
ABROGATION OF SOVEREIGN IMMUNITY IN 
EMPLOYMENT DISCRIMINATION CASES.

A. Congressional Intent Is Determinative
Of The Extent Sovereign Immunity Is
Waived By A Particular Statutory
Scheme.

The government relies mechanically on 

cases decided at a time when sovereign 

immunity was viewed as an absolute and 

impenetrable bar to actions brought 

against the federal government. More 

recent decisions of this Court, on the 

other hand, establish that sovereign 

immunity is a disfavored doctrine and that 

conaress ional waivers of it will be 

construed liberally. Thus, in Franchise 

Tax Board of California v. United States

Postal Service, _____ U.S. ____, 81 L.Ed. 2d
446 (1984) this Court reaffirmed a line of 

cases that have interpreted liberally "sue 

and be sued" language as constituting the



40

total abrogation of sovereign immunity. 
81 L.Ed.2d at 451. The lower courts have 
correctly held that such language encom­
passes an abrogation of the bar to an 
award of interest in a Title VII case. 
See, Nagy v. United States Postal Service, 
773 F .2d 1190 (11th Cir. 1985) .

To what extent the sovereign immunity 
of the federal government has been waived 
by a particular statutory scheme depends, 
of course, on the intent of Congress. 
Indeed, this proposition is firmly 
established by the very cases relied upon 
by petitioners. Thus, for example, in 
Boston Sand Co. v. United States, 278 U.S. 
41 (1928), the Court did not simply rest
on the absence of the word "interest" from

27the private act in question. Rather, the 
decision by Justice Holmes carefully 
scrutinized the context of the statute. It

27 42 Stat. 1590, ch. 192 (5-15-22).



41 -

concluded that Congress did not intend to 
"put the United States on the footing of a 
private person in all respects." Id. at 
47.

In Standard Oil Co. v. United States, 
267 U.S. 76 (1925), in contrast, the Court 
did find the United States liable for 
interest under a statute that again was 
silent on the subject. There, the United 
States acted as if it were a private 
insurer; therefore, it had without more 
consented to be treated as a private 
insurer. Id . at 79. As a result, 
interest could be obtained even though it 
was not expressly provided for by statute. 
Thus, the rule established by the deci­
sions of this Court is that the presence 
or absence of a particular phrase or word 
is not dispositive. Rather, one must look



42

to the intent of Congress as evidenced by 
both the language and purpose of the 
particular statutory scheme involved.

As we have explained in our Brief in 
Opposition to the Petition for Writ of 
Certiorari at pages 17-23, the decisions 
embodying the no-interest rule dealt with 
narrow and specific Acts, leases, and 
contracts in regard to which the United 
States was acting in its sovereign and 
governmental capacity. By 42 U.S.C. 
§ 200Oe- 1 6 ( § 717 of the Equal Employment 
Opportunity Act of 1972), in contrast, 
Congress had the specific and clear intent 
that governmental agencies, in their 
capacities as providers of employment 
opportunities, would have the same status 
as all other employers, private, state and 
local, covered under the broad and 
comprehensive provisions of Title VII.



43

Indeed, Congress intended that the federal 
government serve as a model for all other 
employers because:

The Federal service is an area 
where equal employment opportun­
ity is of paramount signi­
ficance . . . .  Accordingly 
there can exist no justification 
for anything but a vigorous 
effort to accord Federal 
employees the same rights and 
impartial treatment which the 
law seeks to afford employees in 
the private sector.

House Report No. 92-238 (92d Cong. 1st
Sess. , 1971), pp. 22-23; see also Sen.
Report No. 92-415 (92d Cong. 1st. Sess.
1971) pp. 12-13.

B . Congress Intended To Waive All
Sovereign Immunity Bars To The Award 
Of Complete Relief In Title VII 
Cases

In the Equal Employment Opportunity 
Act of 1972 Congress used, if anything, 
even clearer language to evidence an 
intent to abrogate sovereign immunity



44

totally than the phrase "sue and be sued."
Not only has it provided in the statute
that an action against the federal
government will be governed by precisely
the same relief provisions that govern

2 8actions against private employers, but it
has provided specifically that the
government will be liable for fees "the
same as a pr ivate 29person." It has,
moreover, stated explicitly in the
legislative history of the Act that
federal employees will "have the full

42 U.S.C. § 2000e-16(d) :
The provisions of section 200Qe-5(f) 
through (k) of this title, as 
applicable, shall govern civil 
actions brought hereunder.

See Chandler v. Roudebush, 425 U.S. 840, 
8 4 6-~48 ( 1976) for the meaning of the 
phrase "as applicable." For the reasons 
stated there, the phrase cannot be 
construed as limiting the clear language 
of 2000e-5(k) .
42 U.S.C. § 2000e-5(k), one of the 
provisions incorporated by reference by 
§ 2OO0e-16(d).



45

rights available in the courts as are
granted to individuals in the private

50sector under Title VII."

Strikingly absent from the govern­
ment’s brief is any substantial discussion

. 31of the Act’s legislative history. 
Similarly striking is the absence of any 
reference whatsoever to the prior deci­
sions of this Court discussing the history 
and purpose of the Act. This Court has 
held that § 2000e-16 provides federal 
employees with a "careful blend of * 30

Sen. Rep. No. 92-415 (92d Cong., 1st 
Sess., 1971), reprinted in Subcommittee on 
Labor, Senate Commitee on Labor and Public 
Welfare, "Legislative History of The Equal 
Employment Opportunity Act of 1972" 
(hereinafter "Legislative History") at 
425.
The only citation in its brief, at p. 19, 
to the legislative history is to the 
entire lengthy compendium cited supra, n.
30. The government simply asserts that it 
could find nothing in that substantial 
book that casts any light on the issue 
before the Court, presumedly because it 
could not find the magic word "interest" 
therein.



46

administrative and judicial enforcement
powers" intended "to accord federal

33employees the same right [s] " enjoyed by 
other employees. This was accomplished by 
providing that 42 U.S.C. § 2000e-5(f)-(k}, 
the provisions relating to relief for 
non-federal employees, govern the
provision of relief to federal employees. 
Brown v. General Services Administration, 
425 U.S. 820, (1976), squarely held that:

Sections 706(f) through (k), 42 
U.S.C. §S 2000e-5(f ) through 
2000e-5(k) . . . .  which are 
incorporated "as applicable" by 
§ 717(d), govern such issues as 
venue, the appointment of 
attorneys, attorneys' fees, and 
the scope of relief.

425 U.S. at 832 (emphasis added).

Brown v. General Services Administration, 
425 U.S. 820, 833 ( 1976) .
Chandler v. Roudebush, 425 U.S. 840, 848 
(1976).

33



47

Crucial to an understanding of the
intent of Congress when it passed 42
U.S.C. §2000e-16 is the background of that
statute and the specific, underlying
problem it addressed. Existing sovereign
immunity doctrine had served as a bar both
to the recovery of full relief in the
administrative process and to the pursuit

34of such relief in court.' Congress passed 
§ 2000e-16 to overcome that bar entirely.

When Congress enacted Title VII of 
the Civil Rights Act of 1964, it did not 
include the United States within the 
definition of employer. However, it did 
include a proviso that employment deci­
sions of the government were to be free of 
discrimination and entrusted to the 

—  — .....  “  “J

See Schlei & Grossman, Employment Discri­
mination Law, Chap. 33, "Federal Employee 
Litigation" ( 2d Ed. 1983) , for a summary 
of the history of the 1964 and 1972 Acts 
and of the Civil Service Reform Act of 
1978 as they relate to federal employee 
discrimination claims.



48

President the power to implement that 
35proviso. Subsequently, Executive Orders

1 1 246 and 1 1 478 were issued along with
implementing regulations enacted by the

3 6then Civil Service Commission.
The regulations provided administra­

tive procedures and certain remedies to 
federal employees for discrimination in 
employment. However, the scope of relief 
available was severely limited because of 
an opinion of the Comptroller General that 
back pay could be awarded for a discrimi­
nation claim only insofar as it was
permitted under the Back Pay Act (5 U.S.C. 

3 7§ 5596(b)). Thus, a federal employee who 35 * 37

35 P.L. 88-352, § 701(b).
3® 5 C.F.R. Part 713 (1967). These regula­

tions, as amended, are now found at 29
C.F.R. Part 1613.

37 Testimony of Irving Kator, Hearings Before 
the General Subcommittee on Labor of the 
House Committee On Education And Labor on 
H.R. 1746, March 3, 4, and 18, 1971, p. 
365.



49

succeeded in challenging a discharge could 

receive the back pay he had been denied 

thereby, while an employee who successful­

ly challenged the denial of a promotion on
3 8the ground of discrimination could not.

The underlying basis for the Comptroller

General 1s opinion was that without an

explicit waiver of sovereian immunity by

Congress, the only relief available for

discrimination claims was that available

under existing statutory authority.

With regard to the availability of a

judicial remedy, there was a split in the

courts. While the Court of Claims held

that there was a right to bring an action
. 39based on discrimination, the Eighth

See, United States v. Testan, 424 U.S. 392 
(1976)“, for a discussion of the distinc­
tion between discharge and promotion 
claims under the Back Pay Act in a case 
that does not involve a discrimination 
claim.
Chambers v. United States, 451 P. 2d 1045 
(Ct. Cl. 1971).

39



50

Circuit in Gnotta v. United States, 415 

F. 2d 1271 (8th Cir. 1969), held that 

sovereign immunity precluded such an 
action and that the various statutes upon 
which such a claim might be based did not 
constitute a sufficient waiver of sov­
ereign immunity.

Thus, as this court has already held 
in Brown v. GSA, one of the central 
concerns discussed in the hearings and 
committee reports involving § 2000e-16 
were sovereign immunity bars to relief for 
federal employees asserting claims of 
discrimination. Thus, witnesses urged 
that Congress must act to ensure the 
availability of complete relief.^ Repre­
sentatives of the Civil Service Com-

See, e .g . , testimony of Hon. Walter E. 
Fauntroy, Hearings Before the Subcommittee 
on Labor of the Senate Committee on Labor 
and Public Welfare on S.2515, S.2617, antd 
H.R. 1746, Oct. 4, 6, and 7, 1971, at p. 
206.



51

mission, while acknowledging limitations 

on the relief they could grant because of 

the Comptroller General's ruling, attemp­

ted to assure Congress that there was no

sovereign immunity bar to judicial
, . , 41relief.

The Senate Committee, however, noted 

that "the testimony of the Civil Service 

Commission notwithstanding . . . [ijn many

cases the employee must overcome a U.S. 

Government defense of sovereign immunity" 

and that "the remedial authority of the 

Commission and the courts has also been in 

doubt."* 42 Thus, it was made explicit in

Testimony of Irving Kator, Hearings cited 
supra, n . 37, pp. 319-20,* Testimony of 
Irving Kator, Hearings cited supra, n. 40, 
p. 296.

42 Leaislative History at 425. As noted by 
the government in its brief in Brown v. 
GSA, supra, "Ultimately, the Committees 
concluded that judicial review was not 
available at all or that access was 
doubtful and that some forms of relief 
were definitely foreclosed." Brief for 
Respondents in No. 74-768, p . 24.



52

the legislative reports that a central
purpose of § 2000e-16 was specifically to
remove sovereign immunity bars to relief
for federal employees, both in the

43administrative process and in court.
With regard to the administrative

process, Congress specified that the Civil
Service Commission (now the Equal Employ-

44ment Opportunity Commission) could grant
45back pay and all other relief necessary.

Legislative History at 425.
Jurisdiction over federal equal employment 
opportunity matters was transferred to the 
EEOC by the President's Reorganization 
Plan No. 1 of 1978. 43 F.R. 28971 ( 1978).

Section 2000e-16(b) provides that the 
Commission may enforce 2000e-16(a) 
"through appropriate remedies, including 
reinstatement or hiring of employees with 
or without back pay, as will effectuate 
the policies of this section . . . ." The 
section-by-analysis accompanying the 
conference report explained:

The Civil Service Commission would be 
authorized to grant appropriate 
remedies which may include, but are 
not limited to, backpay for aggrieved 
applicants or employees. Any remedy



5 3

The legislative history makes it clear 
that there was no intent to limit the 
relief available to that specified in the 
statute. Rather, Congress recognized the 
impossibility, in the context of Title 
VII, of predetermining all the possible 
types and scope of relief that might be 
appropriate. Thus, at the same time
Congress was enacting § 2000e-16 it was 
expanding the language of the relief 
provisions of Title VII in 42 U.S.C.

needed to fully recompense the 
employee for his loss, both financial 
and professional, is considered 
appropriate under this subsection.

Legislative History at 1851. {Emphasis 
added.) The District Court for the 
District of Columbia interpreted 
§ 2000e-16(b) as authorizing the award of 
attorneys’ fees administratively in an 
employment discrimination case. Smith v. 
Califano, 446 F. Supp. 530 (D.D.C. 1978). 
Congress authorized the award of fees by 
the Merit Systems Protection Board in EEO 
cases in the Civil Service Reform Act of 
1978, 5 U.S.C. § 7701(g)(2). Subse- 
auently, both the MSPB and the EEOC 
adopted regulations for the award of fees 
in EEO cases. 5 C.F.R. § 1201.37; 29 
C.F.R. § 1613.271(c).



54

§ 2000e-5(g). As held by this Court in 
Franks v. Bowman Transportation Company,, 
424 U.S. 747, 763-66 (1976), the legis­
lative history of the amendment to 
§ 2000e-5(g) makes it clear that the 
"'most complete relief possible'" was to 
be available, unlimited by the enumeration 
in the statute of certain particular 
remedies. 424 U.S. at 764.

When Congress provided a judicial
remedy for federal employees, it seized on
the simple expedient of incorporating the
relief provisions that were applicable to
all other employers into § 2000e-16. Thus,
it first provided that federal employees

46could bring a civil action and then made 
all of the relief provisions applicable to 
private, state, and local government 
employers applicable to actions brought by

46 42 U.S.C. § 2Q00e-16(c)



5 5

federal employees. Again, Congress' 
intent to make precisely the same relief 
available to federal employees as is
available to all other employees is
1 48clear.

Thus, the clear language of the 
statute, the legislative history, and the 
entire background and purpose of the 
statute allow no other interpretation than 
that Congress intended to enact a complete 
waiver of sovereign immunity in cases 
raising claims of discrimination in 
employment against federal agencies. The 
waiver includes allowing attorneys' fees

47

42 U.S.C. § 2Q00e-16(d).
The Senate Report states, "aggrieved 
employees . . . will also have the full 
rights available in the courts as are 
granted to individuals in the private 
sector under Title VII." Legislative 
History at 425.



5 6

on the same basis, in the same amount, and
calculated in the same manner as fees

. 49against other parties.

The petitioners’ attempt to rely on lower 
court decisions decided under the Equal 
Access to Justice Act is misplaced for a 
number of reasons. (1) The purpose of 
the EAJA is entirely different. It deals 
specifically with typical governmental 
actions and is limited to awarding fees 
only when the positions taken by the 
government were not "substantially 
justified." (2) The EAJA’s purpose is 
not to encourage the bringing of litiga­
tion, but rather is to provide some 
measure of reimbursement to those who must 
defend against unjust governmental 
actions. (3) The EAJA limits fees to $75 
per hour and thus does not purport to 
provide full or just compensation for 
expenditures of attorneys fees. There­
fore, particularly with regard to the 
inclusion of pre-j udgment interest, it has 
no relevance whatsoever to the calculation 
of a "reasonable," i.e , , fully compensa­
tory, fee. (4) Congress explicitly 
provided that the EAJA did not alter, 
limit, modify, repeal, invalidate, or 
supersede any other statute, including the 
civil rights acts, which provided for fees 
against the United States. P.L. 96-481, 
§ 206. This language was inserted in the 
statute precisely because of concerns that 
the EAJA might be relied upon to restrict 
fee awards in civil rights cases.



5 7

Despite the evidence of the clear 
intent of § 2000e-16, following its 
enactment the government persisted in 
arguing that sovereign immunity limited 
the relief available to federal employees, 
including the recovery of attorneys' fees. 
Indeed, the government's first argument 
was that no fees were available against 
the government whatsoever because of 
sovereign immunity. In fact, the govern­
ment made the same "fortuity" argument 
that it now makes at p. 20 of its brief 
here: that is, when Congress incorporated
42 U.S.C. § 2000e-5(k) into § 2000e-16 it 
really had no intent to impose on the 
United States liability for fees when a 
government employee prevailed in a Title
VII action where a federal agency was the 

5 0defendant.' The government eventually

Letter from Irving Jaffe, Acting Attorney 
General, to Senator John V. Tunney, May 6, 
1975, printed in 2 CCH Employment Prac­
tices Guide 1(5327 ( 1976). See Ralston,



58

5 1abandoned this argument in 1975 and
finally, in 1977, the Attorney General of 
the United States officially disavowed any 
reliance on arguments based on sovereign 
immunity. He stated:

In a similar vein, the 
Department will not urge 
arguments that rely upon the 
unique role of the Federal 
Government. For example, the 
Department recognizes that the 
same kinds of relief should be 
available against the Federal 
Government as courts have found 
appropriate in private sector 
cases, including imposition of 
affirmative action plans, back 
pay and attorney's fees. See 
Copeland v. Usery, 13 EPD 
1(11,434 (D.D.C. 1976); Day v. 
Mathews, 530 F.2d 1083 (D.C. 
Cir. 1976); Sperling v. United 
States, 515 F.2d 465 " ( 3d cir. 
1975). Thus, while the Depart­
ment might oppose particular 
remedies in a given case, it 
will not urge that different 
standards be applied in cases

"The Federal Government as Employer: 
Problems and Issues in Enforcing the 
Anti-Discrimination Laws", 10 Ga. L. Rev. 
717, 719 n. 13 ( 1976) .

51 Ibid.



-  5 9  -

against the Federal Government 
than are applied in other 
cases.

Memorandum of Attorney General Griffin B. 
Bell for United States Attorneys and 
Aqency General Counsel (Aug. 31, 1977), p. 
2 . 52

This directive was in effect when the 
services at issue here were rendered and 
when the district court entered its award; 
to the knowledge of counsel for respon­
dent, it has never been withdrawn. If the 
position taken in the present case 
constitutes a repudiation of that an­
nounced in 1977, we urge that it is in 
error. As we have shown, Congress 
intended to and in fact did confer "upon 
Federal employees . . . the same substan­
tive . . . [and] procedural rights . . .
__

The memorandum was published in 2 CCH 
Employment Practices Guide f 5046 (1977). 
For the convenience of the Court, the 
memorandum is reproduced in Appendix III 
to this Brief at pp. 1c-3c.



60

as it has conferred upon employees . . . 
in private industry and in state and local 
governments." (Ibid.) This Court should 
affirm that the United States has "no 
lesser obligations with respect to equal 
employment opportunities than those it 
seeks to impose upon private and state and 
local government employees." (Ibid.) The 
rights afforded federal employees include 
the recovery of attorneys' fees and back 
pay in their entirety, including both pre- 
and post-judgment interest and other 
necessary components of full make whole 
relief.



61

CONCLUSION
For the foregoing reasons, the 

decision of the court below should be 
affirmed.

Respectfully submitted,

JULIUS LeVONNE CHAMBERS 
CHARLES STEPHEN RALSTON 

(Counsel of Record)
99 Hudson Street, 
16th Floor
New York, N.Y. 10013 
(212) 219-1900

Attorneys for Respondent



APPENDIX I

Statutes Involved



1a

42 P.S.C. § 2000e-16

(a) All personnel actions 
affecting employees or applicants for 
employment (except with regard to aliens 
employed outside the limits of the United 
States) in military departments as defined 
in section 102 of title 5, United States 
Code, in executive agencies as defined in 
section 105 of title 5, United States Code 
(including employees and applicants for 
employment who are paid from nonappro- 
priated funds), in the United States 
Postal Service and the Postal Rate 
Commission, in those units of the Govern­
ment of the District of Columbia having 
positions in the competitive service, and 
in those units of the legislative and 
judicial branches of the Federal Govern­
ment having positions in the competitive 
service, and in the Library of Congress 
shall be made free from any discrimination



2a

based on race, color, religion, sex, or 
national origin.

(b) Except as otherwise 
provided in this subsection, the Civil 
Service Commission shall have authority to 
enforce the provisions of subsection (a) 
through appropriate remedies, including 
reinstatement or hiring of employees with 
or without back pay, as will effectuate 
the policies of this section, and shall 
issue such rules, regulations, orders and 
instructions as it deems necessary and 
appropriate to carry out its responsibili­
ties under this section. The Civil 
Service Commission shall — -

(1) be responsible for the annual 
review and approval of a 
national and regional equal 
employment opportunity plan 
which each department and agency 
and each appropriate unit 
referred to in subsection (a) of



3 a

this section shall submit in 

order to maintain an affirmative 

program of equal employment 

opportunity for all such 

employees and applicants for 

employment;

(2) be responsible for the review 
and evaluation of the operation 

of all agency equal employment 

opportunity programs, perio­

dically obtaining and publishing 

(on at least a semi-annual 

basis) progress reports from 

each such department, agency, or 

unit? and
(3) consult with and solicit the 

recommendations of interested 

individuals, groups, and 

organizations relating to equal 

employment opportunity.,

The head of each such department, agency, 

or unit shall comply with such rules,



4 a

regulations, orders, and instructions 
which shall include a provision that an 
employee or applicant for employment shall 
be notified of any final action taken on 
any complaint of discrimination filed by 
him thereunder. The plan submitted by 
each department, agency, and unit shall 
include, but not be limited to —

(1 ) provision for the establishment 
of training and education 
programs designed to provide a 
maximum opportunity for employ­
ees to advance so as to perform 
at their highest potential; and 

(2) a description of the qualifica­
tions in terras of training and 
experience relating to equal 
employment opportunity for the 
principal and operating
officials of each such depart­
ment , agency or unit responsible 
for carrying out the equal



5 a

employment opportunity program 

and of the allocation of 

personnel and resources proposed 

by such department,, agency, or 

unit to carry out its equal 

employment opportunity program. 

With respect to employment in the Library 

of Congress, authorities granted in this 

subsection to the Civil Service Commission 

shall be exercised by the Librarian of 

Congress.

(c ) Within thirty days of 

receipt of notice of final action taken by 

a department , a g e n c y , or unit referred to 

in subsection 717(a), or by the Civil 

Service Commission upon an appeal from a 

decision or order of such department, 

agency, or unit on a complaint of discri­

mination based on race, color, religion, 

sex or national origin, brought pursuant 

to subsection (a) of this section, 

Executive Order 11478 or any succeeding



6 a

executive orders? or after one hundred and 

eighty days from the filing of the initial 

charge with the department? agency? or 

unit or with the Civil Service Commission 

on appeal from a decision or order of such 

department? agency? or unit? an employee 

or applicant for employment? if aggrieved 

by the final disposition of his complaint? 

or by the failure to take final action on 

his complaint? may file a civil action as 

provided in section 706? in which civil 

action the head of the department? agency?

or unit? as appropriate ? shall be the

defendant. (July 2? 1964 ? P.L. 88-352?

title VII? § 717? as added Mar. 24, 1972?

P.L. 92-261? S 11? 86 Stat. 111? as

amended, Feb. 15, 1980? P.L. 96-191?

§ 8(g) ? 94 Stat. 34. )



7 a

28 U.S.C. § 2516(a)

Interest on a claim against the 

United States shall be allowed in a 

judgment of the United States Claims Court 

only under a contract or Act of Congress 

expressly providing for payment thereof. 

(Based on title 28, U.S.C., 1940 ed.,

§ 284 and section 226 of title 3, U.S.C. , 

1940 ed. , Money and Finance (Sept. 30 , 

1890, ch. 1126, § 1, 26 Stat. 537; Mar. 3, 

1911, ch. 231, § 177, 36 Stat. 1141; Nov.

921 , ch . 136, § 1324(b) 9 42 Stat.

June 2, 1924, ch., 234, § 1020, 43

3 46; Feb. 13, 1925 , ch. 229,- S 3(c),

at. 939; Feb. 26, 1926, ch . 27, §§

1 1 1 7, 1 200, 44 Stat. 119, 125; May 29,

1928, ch. 852, § 615(a), 45 Stat. 877;

June 22, 1936, ch. 690, § 808, 49 Stat.

1746) . )



APPENDIX II
Calculation of Loss of Value 

Through Inflation



1b

A method for adjusting dollar 

amounts for the effect of inflation is set 
out in Hohenstein, "Subtract Inflation 

from Your Income, Prices and Profits," 

Legal Economics 35 (ABA Section on 

Economics of Law Practice, Summer 1978). 

The method sets up a formula based on the 
consumer price index (CPI), which uses 

1967 as the base year. The following 

table sets out the CPI for each year 
through 1984.



2b

Table^

Year CPI

1967 100.0
1968 104.2
1969 109.8
1970 116.3
1971 121.3
1972 125.3
1973 .- 133.1
1974 147.7
1975 161.2
1976 170.5
1977 181.5
1978 195.3
1979 217.7
1980 247.0
1981 272.3
1982 288.6
1983 297.4
1984 307.6

Using the example in the text, to

convert 1975 dollars into their 1980

equivalent, the following ratio is used

1980 CPI/1975 CPI = 247.0/161.2 = 1.53.

The $80 per hour 1975 rate is then 

multiplied by 1.53? $80 X 1.53 = $122.40.

Source: Consumer Price Index for Urban 
Wage Earners and Clerical Workers, annual 
averages and changes, 1967-84. United 
States Department of Labor, Bureau of 
Labor Statistics, Monthly Labor Review. 
May, 1985, p. 69.



3b

Therefore, fees awarded in 1980 would have 

to be calculated at $122.40 per hour 

simply to provide the same dollar equiva­

lent as if the fees had been paid in 1975.
To convert the other way* i,e. , from 

1980 dollars to their 1975 equivalent, the 

converse ratio is used. 1975 CPI/1980 CPI 

= 161.2/247.0 = .65. Therefore, an award 

of $80 per hour in 1980 would be the same 

as if fees had been paid at a rate of $52 

per hour in 1975. ($80 X .65 = $52.).



APPENDIX III
Memorandum of Attorney General Griffin B. Bell 
for United States Attorneys and Agency General 

Counsel (Aug. 31, 1977)



MEMORANDUM FOR UNITED STATES ATTORNEYS 
AND AGENCY GENERAL COUNSELS

Re: Tide VII Litigation

In 1972s as additional evidence of our Nation's deter­
mination to guarantee equal rights to all citizens, Congress 
amended Title VII ©f the Civil Rights Act of 1964 to provide 
Federal employees and applicants for Federal employment with 
judicially enforceable equal employment rights. The Department 
of Justice, of course, has an important role in the affirmative 
enforcement of rights under the Act, in both the private and 
public sectors. To effectively discharge those responsibilities, 
we must ensure that the Department of Justice conducts its 
representational functions as defense attorneys for agencies 
in suits under the Act in a way.that.will be supportive of and 
consistent with the Department's broader obligations to 
enforce equal opportunity laws. This memorandum is issued 
as part of what will be a continuing effort by ’ the Department 
to this end.

Congress, in amending Title VII, has conferred upon Federal 
employees and applicants the same substantive right to be free 
from discrimination on the basis of race, color, sex, religion, 
and national origin, and the same procedural rights to judicial 
enforcement as it has conferred upon employees and applicants 
in private industry and in state and local governments.
Morton v. Hancari, 417 U.S. 535 (1974); Chandler v. Roudebush.
425 U7S. 840 (1976). And, as a matter ot policy, the Federal 
Government should be willing to assume for its own agencies no 
lesser obligations with respect to equal employment opportunities 
than those it seeks to impose upon private and state and local 
government employers.

.In furtherance of this policy, the Department, whenever 
possible, will take the same position in interpreting Title VII 
in defense _ of Federal employee cases as it has taken and will 
take in private or state and local government employee cases.
For example, where Federal employees and applicants meet the



2

%•

criteria of Rule 23 of the Federal Rules of Civil Procedure* 
they are also entitled to the same class rights as are 
private sector employees. Albemarle Paoer Co. Moody„
422 U.S. 405* 414 (1975). further, the Department of 
Justice has acquiesced in the recent rulings of the 
Fifth and Sixth Circuit Courts of Appeals that it is 
unnecessary for unnamed class ©embers to exhaust their ' 
administrative remedies as a prerequisite to class 
membership. Eastland v. TVA, 553 F.2d 364 (5th Cir. 1977); 
Williams v. TVA, F.23 (6th Cir. 1977). Consequently,
we willno longer maintain that each class member in a 
Title ¥11 suit must have exhausted his or her administrative 
remedy.

In a similar vein, the Deparment will not urge 
arguments that rely upon the unique role of the Federal 
Government. For example» the Deparment recognizes that 
the same kinds of relief should be available against the 
Federal Government as courts have found appropriate in 
private sector cases, including imposition of affirmative 
action plans, back pay and attorney's fees. See Copeland 
v. Userv, 13 EPD 111,434 (D.D.C. 1976.); Dav v._ Mathews,
5T0~F.2d 1083 (D.C. Cir. 1976); Sperling v. United States,
515 F,2d 465 (3d Cir. 1975). Thus, waile the Department 
might oppose particular remedies in a given case, it will 
not urge that different standards be applied in cases against 
the Federal Government than are applied in other cases.

The Department, in other respects, will also attempt 
to promote the underlying purpose of Title VII. For example, 
the ,,1972 amendments to Title VII do not give the Government 
a right to file a civil action challenging an agency finding 
of discrimination. Accordingly, to avoid any appearance on 
the Government's part of unfairly hindering Title VII law 
suits, the Government will not attempt to contest a final 
agency or Civil Service Commission finding of discrimination 
by seeking a trial de novo in those cases where an employee 
who has been successful”in proving his or her claim before 
either the agency or the Commission files a civil action 
seeking only to expand upon the remedy proposed by such 
final decision.

-  2c



The policy sec forth above does not reflect, and should 
not be interpreted' as reflecting, any unwillingness on the 
pare of the Department to vigorously defend, on the merits, 
claims of discrimination against Federal agencies where 
appropriate. It reflects only a concern that enforcement of 
the equal opportunity laws as to all employees be uniform 
and consistent.

In addition to the areas discussed above, the Department 
of Justice is now undertaking a review of the consistency of 
other legal positions advanced by the Civil Division in 
defending Title VII cases with those advocated by the Civil 
Rights Division in prosecuting Title VII cases. The objective of 
this review is to ensure that, insofar as possible, they will 
be consistent, irrespective of the Department's role as either 
plaintiff or defendant under Title VII. As a pare of this 
review, "the Equal Employment Opportunity Cases" section of 
the Civil Division Practice Manual (§3-37), which contains 
the Department's position on the defense of Title VII actions 
brought against the Federal Government, is being revised.
When this revision is completed, the new section of the Civil 
Division Practice Manual will be distributed to all 
United States Attorneys5 Offices and-will replace the present 
section. Each office should rely on the revised section of 
the Manual for guidance on legal arguments to be made in Title VII 
actions. In order to ensure consistency, any legal arguments 
which are not treated- in the Manual should be referred to the 
Civil Division for review prior to their being advocated to 
the court.

This policy statement has been achieved through the 
cooperation of Assistant Attorney General Barbara Babcock 
of the Civil Division who is responsible for the defense of 
these Federal employee cases, and Assistant Attorney General 
Drew Days of the Civil Rights Division who is my principal 
adviser on civil rights matters. They and their Divisions 
will continue to work closely together to assure that this 
policy is effectively implemented.

T O i r r m

August 31, 1977

J C
D O J-1977-09



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