Trout v. Garrett III Brief Amici Curiae in Support of Decision

    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, et al.,
V.

Appellees/Respondents,

H. LAWRENCE GARRETT, III, Secretary 
of the Navy, ^  al., 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 OF THE
WASHINGTON LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW, 

NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., 
MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND, AND 

PLAINTIFF EMPLOYMENT LAWYERS ASSOCIATION,
AMICI CURIAE■ IN SUPPORT OF THE DECISION BELOW

ROGER E. WARIN
BRYAN T. VEIS
NINA GLICKMAN
STEPTOE & JOHNSON
1330 Connecticut Ave., N.W.
Washington, D.C. 20036
(202) 429-3000
Counsel for Amici Curiae



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, ^  ,
V.

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

Appellees/Respondents,

Appellants/Petitioners.

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Parties and Amici
Except for the following, all parties, intervenors, and 

amici appearing in this Court are listed in the brief of 
Appellees/Respondents. The amici in supp>ort of
Appellees/Respondents are the Washington Lawyers' Zam n:rree for 
Civil Rights Under Law, the NAACP Legal Lefer-se and Ednrarronal 
Fund, Inc., the Mexicam Americam Legal Defense end Liunennnnal 
Fund, and the Plaintiff Ea^jloyaent Lawyers Assnrnanu-nr.

R u lin g Under ESeviewr

Reference t o  the ruling belcw appears ur m e  nmed rd 
Appe 11 ses / x & s p c T iid e n t* ,

Related Cases
The merits of this cases have previously been before 

this Court and the Supreme Court. Trout v. Lehman. 702 P.2d 1094



(D.C. Cir. 1983), rev^d. 465 U.S. 1056 (1984). As to the 
District Court's interim fee award for which review is currently 
sought, on August 24, 1989, following the government's petition 
for rehearing with suggestion for rehearing ^  banc and petition 
for writ of mandamus, this Court granted rehearing of its March 
30, 1989 dismissal of this appeal and consolidated the appeal 
with the petition for writ of mandamus. Amici are unaware of any 
pending related cases.

-  11



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, ^  al.,
V.

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

Appellees/Respondents,

Appellants/Petitioners.

CERTIFICATE AS TO REASONS FOR SUBMISSION OF A SEPARATE BRIEF

The amici listed in the foregoing Certificate as to 
Parties, Rulings, and Related Cases seek leave to participate in 
this proceeding because of their grave concern that the 
enforcement of the civil rights laws is being seriously 
threatened by the unreasonable delays in the payment of awards of 
interim fees in civil rights class actions against the 
government.

Amici have been extensively involved in civil rights 
class action litigation for more than two decades. During this 
time, amici have become alarmed at the reduction in the number of 
attorneys willing to represent classes in civil rights litigation 
against the government. It has become economically impossible 
for attorneys to embark upon these massive cases due to the 
inordinate delays in the payment of attorney's fees to 
prevailing plaintiffs.

- Ill -



The enforcement of the civil rights laws, such as Title 
VII, is dependent upon the involvement of private attorneys in 
class actions brought against the government. When attorneys 
will not undertake class representation, the cases are not 
brought. Unlawful discrimination by the government is thereby 
allowed to continue unchecked.

This Brief Amicus Curiae provides the Court with the 
unique perspective of public service legal organizations on the 
effect of delays in the award of attorney's fees on the 
enforcement of the civil rights laws. This perspective has been 
gained from the often unsuccessful efforts of amici over the past 
five or six years to find local attorneys to serve as co-counsel 
in civil rights class actions against the government.

Amici have also taken this opportunity to propose a 
procedure for the expeditious resolution of interim fee disputes 
at the District Court level that may be established by this Court 
in the exercise of its supervisory powers. The proposed 
procedure is based on the experiences of amici litigating 
attorney's fees in civil rights class actions with the 
government.

Amici firmly believe that it is imperative to the 
enforcement of the civil rights laws that a message be sent by 
the courts to the government that unreasonable delays in the 
payment of attorney's fees to prevailing plaintiffs will not be 
tolerated. The judicious award of interim fees in this case 
should be affirmed and a message sent to the legal community that

IV -



their essential efforts in the enforcement of the civil rights 
laws will be rewarded without undue delay.

- V -



TABLE OF CONTENTS
Page

CERTIFICATE AS TO PARTIES, RULINGS, AND
RELATED CASES ....................................... i

CERTIFICATE AS TO REASONS FOR SUBMISSION
OF A SEPARATE BRIEF............................ .. iii

TABLE OF AUTHORITIES................................... viii
ISSUES PRESENTED ....................................... x
INTERESTS OF AMICI CURIAE..............................  1
REFERENCES TO PARTIES AND RULINGS......................  2
COUNTERSTATEMENT OF THE C A S E ..........................  3
SUMMARY OF THE ARGUMENT................................  3
ARGUMENT ............................................... 4
I. INTRODUCTION ....................................... 4

A. The Trout C a s e ................................. 4
B. The Experience of the Washington Lawyers'

Committee For Civil Rights Under Law in 
Civil Rights Class Actions Against the
Government ..................................... 6

II. THE JUDGMENT FUND STATUTE DOES NOT BAR THE
PAYMENT OF INTERIM ATTORNEY'S FEES ........  . . . .  8

III. THE PROPRIETY OF THE AWARD OF INTERIM ATTORNEY'S 
FEES IN TITLE VII AND OTHER CIVIL RIGHTS CASES 
IS WELL-SETTLED..................................... 11

IV. THE PUBLIC POLICY UNDERLYING ENFORCEMENT OF 
TITLE VII ACTIONS IS UNDERMINED BY DELAYS IN 
THE PAYMENT OF ATTORNEY'S FEES TO
PREVAILING PLAINTIFFS ............................. 13
A. The Government Has Adopted a Policy of 

Litigating Attorney's Fee Awards as a
Second Major Litigation........................  13

B. The Government's Policy to Litigate Attorney's
Fee Awards is Impeding Enforcement of the Civil 
Rights Laws..................................... 17

- VI -



V. A PROPOSAL TO ELIMINATE APPEALS OF INTERIM 
FEE AWARDS ..............................

CONCLUSION
23
25

-  v i i  -



TABLE OF AUTHORITIES

Cases:
Bradley v. School Board of Richmond.

416 U.S. 696 (1974) ............................
Copeland v. Marshall.

641 F.2d 880 (D.C. Cir. 1980)................ ..
Orubbs V. Butz. 548 F.2d 973 (D.C. Cir. 1976). . . .
Hensley v. Eckerhart. 461 U.S. 424 (1983)..........
Johnson y. Georgia Highway Express, Inc., 488

F.2d 714 (5th Cir. 1974)........................
Jurgens y. EEOC. 660 F. Supp. 1097 (N.D. Tex. 1987).
Library of Congress y. Shaw. 478 U.S. 310 (1986) . .
McKenzie y. Kennickell. 669 F. Supp. 529 

(D.D.C. 1987), affld, 875 F.2d 330 
(D.C. Cir. 1989)................................

McKenzie y. Kennickell. 645 F. Supp. 437
(D.D.C. 1986)........ ■ .........................

McKenzie y. Kennickell. 684 F. Supp. 1097 
(D.D.C. 1988), affid, 875 F.2d 330 
(D.C. Cir. 1989)................................

McKenzie y. Kennickell. 875 F.2d 330
(D.C. Cir. 1989)................................

McKenzie y. McCormick, 425 F. Supp. 137
(D.D.C. 1977) . . . .  ..........................

McKenzie y. Saylor. 508 F. Supp. 641
(D.D.C. 1981) ...................................

Morgan y. District of Columbia.
824 F.2d 1049 (D.C. Cir. 1987)..................

National Ass^n of Concerned Veterans y. Secretary 
of Defense. 675 F.2d 1319 (D.C. Cir. 1981). . . .

Palmer y. Schultz. 679 F. Supp. 68 (D.D.C. 1988) . .

Pages

11-12

14, 23 
11,12,22 
7, 13, 18

21
10
7, 8, 12

10, 15 

14-15

18,20,21

7,14,
18,19,20

14

14

14, 23 

8,9,14,
23

18,21

- yiii -



Parker v. Lewis. 670 F.2d 249 (D.C. Cir. 1981) . . . .
Puerto Rico v. Heckler. 745 F.2d 709

(D.C. Cir. 1984)..................................
Rosenfeld v. United States. 859 F.2d 717

(9th Cir. 1988) ..................................
Thompson v. Barrett. 599 F. Supp. 806 (D.D.C. 1984), 

cert, denied sub nom. Thompson v. Kennickell.
480 U.S. 905 (1987) ..............................

Thompson v. Bovle. 499 F. Supp. 1147 (D.D.C. 1979), 
aff^d in part and rev'd in part. 678 F.2d 257 
(D.C. Cir. 1982)..................................

Thompson v. Kennickell. 836 F.2d 616
(D.C. Cir. 1988)..................................

Thompson v. Sawver. 678 F.2d 257 (D.C. Cir. 1982). . .
Trout V . Lehman. 702 F.2d 1094 (D.C. Cir. 1983), rev•d . 

456 U.S. 1056 (1984)..............................
Trout V . Lehman. 652 F. Supp. 144 (D.D.C. 1986). . . .

Young V. Pierce. 822 F.2d 1376 (5th Cir. 1987) . . . .

Statutes:
42 U.S.C. § 1988 (1982)..............................
42 U.S.C. § 2000e-5(k) (1982)........................

Legislative Materials:
S. Rep. No. 1011, 94th Cong., 2d Sess. 2 (1976), 

reprinted in 1976 U.S. Code Cong. & Admin.
News 5,908, 5,910 .............. .. . . ...........

Miscellaneous:
Fed. R. Civ. P. 11 ...................................

Pages

8,12,22

8

10

16

15

7,12, 
15, 16

15

4
10

17
9

17-18

25

- IX



ISSUES PRESENTED
The Court's order of August 24, 1989 directed the 

parties to address the following issues:
1. In view of 28 U.S.C. §§ 1291, 1292, is the 

District Court's interim award an immediately appealable order;
2. Does mandamus lie as a means to gain appellate 

review of the interim award; and
3. In view of 31 U.S.C. § 1304 and 28 U.S.C. § 2414, 

may the District Court direct the government to pay immediately 
an interim award of attorney's fees under Title VII of the Civil 
Rights Act of 1964.

Amici will address only issue number 3.

- 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, et al..
V.

H. LAWRENCE GARRETT, III, Secretary 
of the Navy, ^  ,

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 OF THE
WASHINGTON LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW, 

NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., 
MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND, AND 

PLAINTIFF EMPLOYMENT LAWYERS ASSOCIATION,
AMICI CURIAE. IN SUPPORT OF THE DECISION BELOW

INTERESTS OF AMICI CURIAE

The interests of amici Washington Lawyers' Committee 
for Civil Rights Under Law, NAACP Legal Defense and Educational 
Fund, Inc., Mexican American Legal Defense and Educational Fund, 
and Plaintiff Employment Lawyers Association are described in the 
Motion For Leave To File Brief Amicus Curiae filed with the Clerk 
of Court simultaneously with this brief. Amici will address 
solely the government's arguments that interim attorney's fees



cannot be awarded against the government because they are 
contrary to the Judgment Fund statute.

The payment of interim attorney's fees in Title VII 
and other civil rights litigation serves an important public 
interest by encouraging private attorneys to undertake the 
massive litigation burdens inherent in class action civil rights 
litigation. The participation of the private bar in these class 
actions is absolutely essential to the enforcement of the civil 
rights laws. Based on the difficulty they have had over the past 
decade seeking co-counsel in Title VII class actions against the 
government, amici believe that the important public interest in 
the enforcement of the civil rights laws will be jeopardized if 
the government is successful on its appeal, and, therefore, we 
support the position of Appellees/Respondents.

REFERENCES TO PARTIES AND RULINGS
All parties are listed in the foregoing Rule 11(a)(1) 

Certificate as to Parties, Rulings, and Related Cases. This 
appeal is from the August 5, 1988 judgment issued by the United 
States District Court for the District of Columbia (the 
Honorable Harold H. Greene), reguiring the immediate payment of 
an interim award of $276,044.00 in attorney's fees and 
$15,434.01 in costs against the United States in this action 
under Title VII of the Civil Rights Act of 1964.

-  2 -



COUNTERSTATEMENT OF THE CASE
Amici hereby adopt Appellees/Respondents' 

counterstatement of the case as presented in their brief.

SUMMARY OF THE ARGUMENT
The government's argument that the Judgment Fund 

statute prohibits it from paying interim fee awards in civil, 
rights cases is without merit. Notwithstanding the Judgment 
Fund statute. Title VII unquestionably waives the government's 
immunity from payments of attorney's fees.

Furthermore, as the government has not contested the 
award amount and has conceded that it is liable for attorney's 
fees for those portions of the litigation finally resolved in 
favor of the plaintiffs, the government has failed'to 
demonstrate that it will be irreparably harmed if the interim 
fee award is affirmed. The interim fee award is clearly 
appropriate in form and amount.

The government's strategy to turn disputes over 
attorney's fee awards into second major litigations in the face 
of the oft-repeated admonitions of this Court not to do so is 
impeding the enforcement of the civil rights laws. Under these 
circumstances, amici are finding it increasingly difficult to 
locate counsel willing to represent plaintiffs in civil rights 
class actions against the government. Interim fee awards are 
essential to the continued viability of the civil rights laws as 
true protectors of individual rights.

3 -



The Court may find this case an appropriate one in 
which to establish standards for the future expeditious 
resolution of disputes over interim fee awards.

ARGUMENT
I. INTRODUCTION

A. The Trout Case
Shortly after the passage of the Equal Employment 

Opportunity Act of 1972, plaintiff Yvonne G. Trout commenced 
this lawsuit, alleging individual and class-wide systemic 
discrimination against female computer systems analysts and 
programmers at the Naval Command Systems Support Activity 
("NAVCOSSACT"), which was subsequently renamed the Naval 
Regional Data Automation Center ("NARDAC"). In October 1986, 
after thirteen years of litigation, a finding of class-wide 
discrimination by defendants in promotions, which had been 
issued by the District Court, affirmed by this Court, and 
remanded back to the District Court by the Supreme Court, was 
re-issued by the District Court. Trout v . Lehman, 652 F. Supp. 
144 (D.D.C. 1986). There has thus been a final determination of 
class-wide liability against the Navy.

The class has also obtained partial relief at the 
administrative level —  the Navy changed two of its personnel 
practices. The remainder of the relief issues are pending in 
the District Court on hearings before a Special Master.

The individual cases of the two named plaintiffs are 
also final. Relief as to the two individual plaintiffs was 
resolved through Consent Orders in which the government

- 4 -



specifically conceded that plaintiffs were entitled to immediate 
payment of reasonable attorney's fees and costs.

The instant appeal is from a judgment issued by the 
Honorable Harold H. Greene on August 5, 1988, ordering the 
defendants to pay immediately to plaintiffs' counsel an interim 
award of $276,044.00 in attorney's fees and $15,434.01 in costs. 
The District Court granted plaintiffs' counsel's request for 
immediate payment of attorney's fees limited to attorney hours 
allocable only to the finalized portions of this litigation on 
which plaintiffs have prevailed, to be awarded at counsel's 
historical rates.-l/ The government does not dispute that 
plaintiffs have prevailed, raised no challenge to the time 
allocations in the fee request, nor did it deny that the 
portions of litigation in question were actually final. Thus, 
the sole issue on the question 6f attorney's fees in this case 
is the amount. The plaintiffs have prevailed on the merits, and 
no further appeals on the merits are available to the 
government. The government, accordingly, is liable for 
attorney's fees. The interim fee award at issue in this appeal 
merely represents an irreducible minimum of an amount legally 
due plaintiffs based on their success on the merits.

1/ The Appellees/Respondents' February 1987 fee application 
contains specific allocations of attorney time to seven phases 
of the litigation and with respect to final and non-final class 
action issues and to prevailing and non-prevailing individual
cases.

5 -



B. The Experience of the Washington Lawyers'
Committee for Civil Rights Under Law 
in Civil Rights Class Actions Against 
the Government
The Washington Lawyers' Committee for Civil Rights 

Under Law ("Lawyers' Committee") has been either sole counsel or 
co-counsel in civil rights cases since it was founded in 1968.
The Lawyers' Committee represents individual plaintiffs pursuing 
discrimination suits against both private parties and the federal 
government. The Committee, however, does not have the resources 
to represent a class in a discrimination suit against either a 
private party or the government. A class action civil rights 
case is typically a protracted proceeding, and all the more so 
when the government is the defendant. Over the past two decades, 
the government has demonstrated a propensity for litigating 
vigorously not only on liability and relief issues, but also on 
attorney's fee issues. Thus, for these cases, the Committee 
seeks co-counsel assistance from the local private legal 
community.

In the experience of the Lawyers' Committee, awards of 
interim attorney's fees are absolutely critical to the 
enforcement of the civil rights laws. Counsel representing a 
class in a civil rights case must litigate on the average for 
eight years before the liability portion of the case is 
resolved. Resolution of the remedial portion of the case may 
take additional years. Even after final resolution of the case, 
the government's "never say die" approach to litigating 
attorney's fees is evident in the score of government attorney's

-  6 -



fee cases in this Court over the past decade. This approach has 
been known to extend civil rights class actions through an 
additional five or six years,^ notwithstanding the oft-repeated, 
but seldom heeded, advice of Justice Powell that attorney's fees 
litigation should not turn into a whole second litigation.
Hensley v. Eckerhart. 461 U.S. 424, 437 (1983). As attorney's 
fees are awarded at historical rates,2/ however, delays in the 
award of such fees severely devalue the award for legal services 
provided. This causes the legal community to become less willing 
to accept even the most meritorious civil rights case if the 
government is a defendant. Interim fee awards alleviate somewhat 
the harsh results of the historical rate rule as well as provide 
a means to sustain counsel during these protracted litigations.

On several recent occasions, the Lawyers' Committee 
has faced an-apparent shift in the government's litigation 
strategy regarding attorney's fees in class action civil rights 
cases. In Library of Congress v. Shaw. 478 U.S. 310 (1986), the 
Supreme Court held that Congress did not waive the Federal 
Government's traditional immunity from an award of interest when 
it afforded federal employees a right of action under Title VII.

2/ Indeed, in two Title VII class actions instituted against 
the Government Printing Office, liability and relief were not 
finally resolved for fourteen in one case and for nine years in 
another case. See McKenzie v. Kennickell. 875 F.2d 330, 331-32 
(D.C. Cir. 1989); Thompson v. Kennickell. 836 F.2d 616, 618 
(D.C. Cir. 1988). The attorney's fees in both of these cases 
still have not been finally resolved, despite being in litigation 
for more than five years.
3/ In Thompson v. Kennickell. 836 F.2d at 619, this Court 
concluded that where the government is a defendant the use of 
current rates for work performed under the Equal Pay Act is 
precluded under Library of Congress v. Shaw. 478 U.S. 310 (1986).

- 7



Id. at 323. Since Shaw, the government has displayed an 
increasingly irresponsible attitude towards wasting judicial 
resources on attorney's fees litigation. Shaw gives the 
government every incentive to delay the payment of attorney's 
fees awards through meritless appeals, as it will not suffer the 
economic consequences of such delay through an increased award. 
The government's appeal of the interim fee award issued by Judge 
Greene is a clear example of such a dilatory tactic, which 
ultimately interferes with the enforcement of the civil rights 
laws.

II. THE JUDGMENT FUND STATUTE DOES NOT BAR 
THE PAYMENT OF INTERIM ATTORNEY'S FEES
The government's propensity for extending fee 

proceedings is well-established and has been criticized 
repeatedly by this Court. See, e.g,. Puerto Rico v. Heckler.
745 F.2d 709, 714 (D.C. Cir. 1984); National Ass'n of Concerned 
Veterans v. Secretary of Defense. 675 F.2d 1319, 1338 (D.C. Cir. 
1981) (Tamm, J. concurring). The government's argument in this 
appeal that the Judgment Fund statute bars the government from 
paying interim fee awards is but one more example of the 
government's apparent policy of extending fee proceedings 
unnecessarily.

First, the award in question in this appeal clearly 
meets the standard of Parker v. Lewis. 670 F.2d 249 (D.C. Cir. 
1981), that the award be "an amount that either is not contested 
or is not contestable." Id. at 250. The government cannot in 
good faith assert that the amount of fees is contested in this

-  8 -



appeal. As Appellees/Respondents discuss at length in their 
brief, the government has failed to identify any portion of class 
counsel's fee application that it disputes and has failed to 
provide substantiated objections regarding specific aspects of 
the request.^ Appellees/Respondents' Brief at 12-17. The fee 
petition is thus uncontested.

Second, the government argues for several pages in its 
brief that it is immune from interim fee awards under principles 
of sovereign immunity. See Appellants/Petitioners' Brief at 25- 
28. But there is no issue of sovereign immunity before this 
Court. Immunity has been waived under the Title VII attorney's 
fees provision. .42 U.S.C. § 2000e-5(k) (1982). The only
question is the timing of the payment of these fees. The 
government has not cited any cases in support of its, theory that 
it is immune from paying interim fees because of when they must 
be paid. Rather, all of the cases cited by the government go to 
the issue of if the government must pay. However, there is no 
question that the government is liable for attorney's fees for 
those portions of the case in which the plaintiffs have 
prevailed. The government's sovereign immunity defense is thus 
entirely transparent.

Finally, the government's main argument, that no 
attorney's fees may be awarded until all issues raised in the 
underlying litigation are finally resolved, cuts the heart out 
of the long-standing policy underlying the award of interim 
fees. As discussed below in part III, it is well-established

^  See National Ass'n of Concerned Veterans. 675 F.2d at 1326.

- 9 -



that interim fee awards for those portions of the substantive 
litigation as to which the plaintiff has prevailed are 
consistent with the overall policies and goals of Title VII and, 
in fact, necessary for its continued enforcement. The 
government, however, urges this Court to preclude the award of 
any fees for which the government is undeniably liable until all 
substantive portions of the litigation —  both liability and 
relief —  have been finally resolved. This novel approach to 
statutory interpretation has been rejected by every court that 
has considered it.-§/ These courts have recognized that the 
government's overly technical analysis of relevant statutes 
ignores recognized principles of statutory interpretation-^ 
while it undermines the important public policy interest of 
eradicating discrimination in the workplace, upon which Title 
VII rests.

Moreover, no matter how this Court decides the issue 
of whether the interim fee award is appealable, the government 
is not harmed. If it is the case —  and it may be —  that the 
interim fee order is appealable under the collateral order 
doctrine, then the Judgment Fund statute's prerequisite to 
payment of the fee is satisfied. If, however, the interim fee

5/ See, e.g.. Rosenfeld v. United States. 859 F.2d 717 (9th 
Cir. 1988) (FOIA interim fee award); Jurgens v. EEOC. 660 
F. Supp. 1097 (N.D. Tex. 1987) (Title VII interim fee award); 
McKenzie v. Kennickell. 669 F. Supp. 529 (D.D.C. 1987) (Title 
VII interim fee award), aff'd. 875 F.2d 330 (D.C. Cir. 1989); 
Young V. Pierce. 822 F.2d 1376, 1377 (5th Cir. 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 judgment on 
the merits).
^  See discussion in Appellees/Respondents' Brief at 35-40.

-  10 -



order is not appealable at this stage, it is only because the 
government has not discharged properly its responsibility to 
state with particularity the reasons for its disagreement with 
the interim fee award. The government may not proffer a broad, 
vague challenge to an interim fee award and then use that 
challenge as a basis to delay payment of the award. The interim 
fee award is not properly subject to appeal because the 
government has not specified the nature of its challenge.

It is the law of this Circuit that interim fees are 
only available to plaintiffs when it is clear that they have 
won. Grubbs v. Butz. 548 F.2d 973, 976-77 (D.C. Cir. 1976) (if 
there is any question that the plaintiffs are not going to 
prevail, the payment of interim fees will not be ordered). The 
government has not contested the amount of the interim fee 
award; nor does it dispute that the plaintiffs have prevailed. 
Furthermore, the government has never argued that the interim 
fee amount is greater than the plaintiffs will ultimately be 
entitled to. As the government cannot point to any actual harm 
to their interests resulting from immediate payment of the 
interim fee award, the ''grave injustice" that would be done to 
the government were this interim fee award not appealable is 
simply not apparent.

III. THE PROPRIETY OF THE AWARD OF INTERIM
ATTORNEY'S FEES IN TITLE VII AND OTHER
CIVIL RIGHTS CASES IS WELL-SETTLED
The propriety of an interim fee award to alleviate the 

injury caused by delay in payment is well-established. Bradley 
V. School Board of Richmond. 416 U.S. 696, 723 (1974) (interim

11 -



fees are available after an order determining substantial rights
of parties even prior to a final o r d e r ) G r u b b s .v̂ — But^, 548
F.2d at 976-77 (interim award in a Title VII case is proper once 
discrimination has been established). Interim awards are based 
on judicial recognition that delays in fee payments properly due 
undercut the public policy behind statutory fee awards by 
discouraging attorneys from accepting such cases. Parker v. 
Lewis. 670 F.2d at 250.^

This rationale has particular force in cases against 
the government, which interprets Library of Congress v. ShaW/
478 U.S. at 310, as absolving it from all liability for 
plaintiffs' losses due to delay in payment.^ Under this logic, 
the government can drag out fee litigation unnecessarily at 
minimal cost to itself while delay steadily erodes the value of

7/ Justice Blackmun, speaking for the Court, stated:
To delay a fee award until the entire 
litigation is concluded would work 
substantial hardship on plaintiffs and their 
counsel, and discourage the institution of 
actions despite the clear congressional 
intent to the contrary evidenced by passage 
of [the act]. A district court must have 
discretion to award fees and costs incident 
to the final disposition of interim matters.

Id. at 723.
R/ The Parker court felt "compelled to assure a quick 
^nveyance of funds" to the plaintiffs because this Court 
followed a rule at that time that no interest on attorney s fees 
awarded against the government could be awarded. Id.
9/ See also Thompson v. Kennickell, 836 F.2d at 619 (in 
formulating an attorney's fee award against the government in an 
Equal Pay Act case, current billing rates may not be used in the 
lodestar figure to compensate attorneys for delay in payment; 
interest and compensation for delay are functionally equivalent 
under Shaw).

-  12 -



the attorney's fees plaintiffs ultimately will receive. Since 
the Supreme Court has closed the door to compensation for delays 
caused by the government, there is an even stronger public 
interest in compensating successful plaintiffs soon. Only rapid 
decisions on fee petitions and the judicious use of interim fee 
awards can minimize the harm to successful plaintiffs. At the 
very least, interim awards of attorney's fees must be upheld.

IV.

A .

THE PUBLIC POLICY UNDERLYING ENFORCEMENT 
OF TITLE VII ACTIONS IS UNDERMINED 
BY DELAYS IN THE PAYMENT OF ATTORNEY'S 
FEES TO PREVAILING PLAINTIFFS
The Government Has Adopted a Policy 
of Litigating Attorney's Fee Awards 
as a Second Major Litigation
The Lawyers' Committee has been involved in more than 

twenty Title VII class actions against the federal government 
over the past two decades. Each of these cases has lasted 
longer than eight years, with some, such as this case, 
stretching to as long as 18 years. After the liability portion 
of the case has been litigated for several years, it is typical 
for several more years to pass between final resolution of 
liability issues and the resolution of the remainder of the 
case. Interim fees are necessary in such lengthy cases to 
sustain counsel's efforts —  efforts which ultimately will be 
rewarded at only a fraction of their then-current value.

The Supreme Court has admonished the government that a 
"request for attorney's fees should not result in a second major 
litigation." Henslev v. Eckerhart. 461 U.S. at 437. This Court 
has also warned that contests over fees should not be permitted

- 13 -



to evolve into exhaustive trial-type proceedings. See Copeland 
V. Marshall. 641 F.2d 880, 896 (D.C. Cir. 1980) (en banc)
Fee contests should not be transformed into full trials with 
extensive discovery. "Nor should the zeal of government counsel 
be permitted to require applicants to expend substantial 
additional time supporting fee claims which will only result in a 
request for more compensation for these additional labors." 
National Ass^n of Concerned Veterans. 675 F.2d at 1329.

Nevertheless, the government's recent policy of 
litigating fee awards vigorously has caused just such a result. 
For example, in McKenzie v. Kennickell. 875 F.2d 330, the "legal 
odyssey," as this Court described it, "stretched over the better 
part of two decades." Id. at 331. The plaintiffs filed an 
action in 1973 alleging racial discrimination in hiring, 
training, and promotion practices in violation of Title VII. The 
district court granted plaintiffs' motion for summary judgment on 
all claims of liability under Title VII in 1977 (McKenzie v. 
McCormick. 425 F. Supp. 137 (D.D.C. 1977)), and issued a remedial 
decree in 1981. McKenzie v. Savior. 508 F. Supp. 641 (D.D.C. 
1981). Class counsel immediately filed a petition requesting an 
interim amount of attorney's fees and costs. Five years later, 
the district court (the Honorable Barrington D. Parker) granted 
class counsel an interim award covering the period from the 
outset of the case in 1973 until the date in 1981 of the final 
relief order. McKenzie v. Kennickell. 645 F. Supp. 437 (D.D.C.

10/ See also Morgan v. District of Columbia. 824 F.2d 1049, 
1067 (D.C. Cir. 1987) (differences over fee awards should be 
resolved "without precipitating another federal case").

- 14 -



1986). At that time, all pending substantive issues had not been 
resolved. McKenzie v. Kennickell. 669 F. Supp. at 530. After 
the district court approved a Stipulation and Final Order 
resolving all pending substantive issues on July 2, 1987, class 
counsel sought compensation for legal services rendered and 
expenses incurred since the 1981 relief order (the remainder of 
the lodestar fee). Id. Litigation regarding the fee enhancement 
has continued through the better part of this year.

Similarly, in Thompson v. Kennickell. 836 F.2d 616, 
while liability and relief issues for portions of the litigation 
were finally resolved after eight years of litigation, the fee 
issue took on a life of its own —  consuming an additional seven 
years —  and is still unresolved. In Thompson, five female 
employees of the Government Printing Office filed a class action 
against the government in July 1974 alleging discriminatory 
practices in violation of the Equal Pay Act of 1963 and of Title 
VII. The district court ruled in favor of the plaintiff class 
under both theories of liability in 1979. Thompson v. Boyle. 499 
F. Supp. 1147 (D.D.C. 1979), affM in part and revM in part, 678 
F.2d 257 (D.C. Cir. 1982). Shortly thereafter, the district 
court issued an order granting relief to the plaintiffs. On 
appeal, this Court affirmed the district court's liability 
determination and, in large part, the relief granted. Thompson 
V. Sawyer. 678 F.2d 257 (D.C. Cir. 1982). All remaining issues 
regarding relief were subsequently resolved through consent 
decrees.

- 15 -



Class counsel filed a petition for attorney's fees and 
expenses in March 1983. The district court ordered the 
government to pay plaintiffs a lodestar fee and enhancement in 
1984. Thompson v. Barrett. 599 F. Supp. 806 (D.D.C. 1984), 
ce£t. denied sub npm. Thompson v. Kennickell. 480 U.S. 905 
(1987). The government appealed to this Court but, on the day 
of oral argument in 1986, the government agreed to pay 
plaintiffs an irreducible minimum amount. This Court 
subsequently issued an opinion in January 1988 remanding the 
case to the district court for reconsideration of, inter alia, 
certain enhancement issues. Thompson v. Kennickell. 836 F.2d at 
616-17. The amount due plaintiffs for the efforts of one of 
their class counsel is now on appeal from the District Court's 
decision after remand.

In this case, originally filed in 1972, the government 
has appealed every order issued by the district court at every 
stage of the litigation —  liability, relief, and interim fees. 
The government has crossed the line separating vigorous 
litigation from dilatory tactics.IV Such tactics waste judicial 
resources, and would appear to be harming the government's 
interest more than assisting it, as they distract Assistant 
United States Attorneys from more pressing work and consume more 
of class counsel's time, thereby increasing the ultimate award of 
attorney's fees.

11/ Amici do not doubt that it may be perfectly appropriate 
for the government to vigorously defend discrimination charges. 
But when the government loses, as it has done so here, it is 
incumbent upon the government to pay to its citizens those monies that are due.

16 -



When civil rights class actions against the government 
drag on for as long as those described above have, it is more 
efficient and less time-consuming in the long run for a court to 
be able to decide the attorney's fee issues sooner rather than 
later. It is simply common sense that the closer in time the fee 
determination is made to when the services were actually 
performed, the easier it is on all parties to resolve the issues 
that may crop up. Interim fee awards serve such a purpose; they 
enable the parties to resolve the fee issues related to those 
portions of the case finally resolved close in time to when the 
portions were resolved. In this way, interim fee awards save 
economic resources for all parties concerned.

•B. The Government's Policy to Litigate 
Attorney's Fee Awards is Impeding 
Enforcement of the Civil Rights Laws
The involvement of attorneys in civil rights class

actions against the government is essential to the enforcement
of the civil rights laws.12/ it has been the experience of the

12/ The Senate Report published in connection with the passage 
of the Civil Rights Attorney's Fees Awards Act of 1976 (42 U.S.C. 
§ 1988 (1982)) stated:

All of these civil rights laws depend 
heavily upon private enforcement, and fee 
awards have proved an essential remedy if 
private citizens are to have a meaningful 
opportunity to vindicate the important 
Congressional policies which these laws 
contain.

In many cases arising under our civil 
rights laws, the citizen who must sue to 
enforce the law has little or no money with 
which to hire a lawyer. If private citizens 
are to be able to assert their civil rights,

(continued...)
- 17 -



Lawyers' Committee and of other public service legal 
organizations, however, that the protracted nature of Title VII 
and other civil rights act class actions against the government 
has made it increasingly difficult to locate competent counsel 
willing to devote the time and resources necessary to conduct 
such litigation. For example, nine individuals stated in 
affidavits made part of the record in a separate proceeding 
before this Courtis that they were unable to secure counsel to 
represent them in their Title VII actions. Each of the nine 
ultimately proceeded pro se. McKenzie v. Kennickell. 684 
F. Supp. 1097, 1103 (D.D.C. 1988), aff'd. 875 F.2d 330 (D.C. 
Cir. 1989) . In addition, affidavits from civil rights 
organizations submitted as evidence in McKenzie and in another 
proceeding in the court belowl^ also documented the increasing 
difficulty of attracting counsel for Title VII litigation.i^/

12/ (...continued)and if those who violate the Nation's 
fundamental laws are not to proceed with 
impunity, then citizens must recover what it 
costs them to vindicate these rights in 
court.

S. Rep. No. 1011, 94th Cong., 2d Sess. 2 (1976), reprinted in 
1976 U.S. Code Cong. & Admin News 5,908, 5,910 (quoted in 
Hensley v. Eckerhart. 461 U.S. 427, 445 (1983) (opinion of 
Brennan, J., concurring in part and dissenting in part)).
13/ McKenzie v. Kennickell. 875 F.2d 330 (D.C. Cir. 1989) (the 
joint appendix in that proceeding made these affidavits part of 
the record on appeal).
14/ See McKenzie. 875 F.2d at 337; Palmer v. Schultz. 679 
F. Supp. 68, 75 (D.D.C. 1988).
15/ Mr. Julius Chambers, Director-Counsel of the NAACP Legal 
Defense and Educational Fund, Inc. stated that "Title VII cases 
present tremendous risks [to practitioners] irrespective of(continued...)

- 18 -



For example, the Director of the Equal Employment 
Opportunity Program of amicus Lawyers' Committee stated that he 
receives and reviews hundreds of requests for legal assistance 
with EEO claims each year, and attempts to locate area counsel 
to represent individuals with meritorious claims.!^ However, 
only 15 to 18 firms of the literally hundreds (if not thousands) 
of firms in the District of Columbia have agreed to participate 
in the program. In fact, since 1985 the Committee has been 
unable to find lawyers willing to represent at least 1/4 of the 
plaintiffs that approached the Committee with clearly meritorious 
claims.!^

The declaration of Ms. Ann Barker, former Director of 
the Office of Public Service Activities of the District of 
Columbia Bar, is especially compelling. Until the end of 1988, 
Ms. Barker supervised the Bar's Lawyer Referral and Information 
Service ("LRIS"), a service which attempts to refer cases, often 
on a contingent fee basis, to qualified area attorneys in 
accordance with their area of expertise. The LRIS maintains 
directories of attorneys who have indicated they are available to 
accept referrals in "employment law." Ms. Barker stated that 
only 33 of the more than 45,000 members of the District of 
Columbia Bar have indicated they are available to do "employment

15/ (...continued)their ultimate outcomes." McKenzie v. Kennickell. 875 F.2d at 
337.
16/ Declaration of Joseph M. Sellers, Exhibit A, 2-3. (The 
joint appendix in McKenzie v. Kennickell. 875 F.2d 330, made this 
declaration part of the record on appeal.)
17> Id. 1 3.

- 19 -



law'̂  work. Of that group, only 23 have had experience with 
employment discrimination litigation.-l^

The LRIS finds that "employment discrimination cases 
are among the most difficult to place. "-3=̂  Indeed, Ms. Barker 
emphasized that, "[i]t has been impossible to find legal 
representation for many of the callers who contact [LRIS] with 
employment discrimination cases," due in part "to the limited 
number of attorneys who are willing to accept employment 
discrimination cases on a contingency fee b a s i s . I n  fact, 
the District Court noted evidence showing that class actions 
against the federal government are even more difficult to place 
because of the great delays in getting paid at all. McKenzie v. 
Kennickell. 684 F. Supp. at 1103. In a deposition taken in the 
McKenzie case, one practitioner summed up quite emphatically the 
attitude of the private bar towards civil rights class actions 
against the government:

I very much enjoy my work in the Title VII area.
I think I am very 3cnowledgeable and an effective 
lawyer in this area. But I wouldn't touch one 
against the government because of the difficulty 
involved in getting paid for that work.

I would have to say that I think I am not by any 
means unique in my position and that the 
enforcement of Title VII against the federal 
government would be vastly improved if there was 
some assurance that attorneys were going to be

18/ Declaration of Ann Barker, Exhibit B, 5. (The joint 
appendix in McKenzie v. Kennickell. 875 F.2d 330, made this 
declaration part of the record on appeal.)
19/ Id. % 6.
20/ Id. (emphasis added).

-  20  -



paid fairly and with adequate recognition of the
risk involved in undertaking that work.^i/
The evidence submitted in McKenzie and Palmer and the 

experience of the Lawyers' Committee over the years demonstrate 
quite clearly that the reasons underlying the private bar's 
reluctance to undertake representation of plaintiffs in Title 
VII class actions against the government are purely economic.
The return on investment of time, effort, and expertise is 
severely limited by the delay in ultimate payment of attorney's 
fees combined with the rules under Shaw that plaintiffs may not 
recover interest on attorney's fees against the government and 
that attorney's fees must be paid at historical rates. It 
simply is not economically reasonable for private attorneys to 
devote their limited resources to these class actions for 
periods of time averaging ten years or more, only to realize a 
mere fraction of their worth. Interim fee awards at least 
soften the blow by providing partial payment before the value of 
the award is eroded even further.

This testimony also demonstrates that the enforcement 
of Title VII is in serious trouble. A number of courts have 
indicated that in enacting the attorney's fee awards provision in 
Title VII, Congress intended to encourage individuals to seek 
judicial relief. Johnson v. Georgia Highway Express. Inc.. 488 
F.2d 714, 716 (5th Cir. 1974). Private enforcement is essential 
in order to achieve Title VII's goal of eradicating employment

21/ Deposition of Jane Lang McGrew, at 29 (taken December 11, 
1987) (submitted into the record in McKenzie v. Kennickell, 684 
F. Supp. 1097).

-  21 -



discrimination; the attorney's fee provision was an integral part 
of the Senate's effort to shift primary responsibility for 
enforcing Title VII from the EEOC to aggrieved individuals.
Grubbs v. Butz. 548 F.2d at 975. Delays in the awards of 
attorney's fees, such as the one in this case, pose a serious 
threat to the enforcement structure of Title VII.

By contrast, requiring the government to pay the 
interim award in this case will further Title VII's goal of 
eliminating discrimination through private enforcement. In 
fact, enforcement of interim fee awards may be the only avenue 
open to the judiciary to ensure that the purpose of Title VII is 
not completely undermined. This important public policy 
interest can be advanced only when the courts reject the 
government's continuing efforts to impede Title VII enforcement 
through dilatory tactics and meritless appeals of attorney's fee 
awards.

22/ This Court agreed with this assessment in Parker v. Lewis:
We are concerned 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. Such delays have the potential to 
dampen substantially attorneys' enthusiasm to 
undertake discrimination cases. The court 
should not allow delay in cases such as this 
one to undeirmine the efficacy of Title VII 
policy.

Parker v. Lewis. 670 F.2d at 250.

-  22 -



V. A PROPOSAL TO ELIMINATE APPEALS 
OF INTERIM FEE AWARDS
This Court has repeatedly chastised the government for 

the litigate-every-issue-forever approach which it has taken in 
attorney's fee disputes.-2^ As a result of the government's 
approach, the Court has been faced with more attorney's fee 
disputes than perhaps any other court, and these disputes are, in 
fact, very difficult cases. There is a healthy discipline 
imposed on private litigants by their having to pay their own 
lawyers that reduces court congestion because it encourages 
settlement. Unfortunately, unlike private litigants (or 
businesses) which must make cost/benefit analyses when deciding 
to continue to litigate, the government litigation track record 
seems to suggest that it feels it litigates for free.

If this Court were to eliminate interim attorney's fee 
awards to plaintiffs who have prevailed in establishing 
liability (as here plaintiffs have), it would only further 
encourage the government to litigate cases which should be 
settled. On the other hand, interim fee awards help reduce the 
cost of litigating against the government and will promote 
resolution not only of attorney's fees disputes, but also the 
underlying litigation itself. Amici firmly believe that interim 
fee awards play an essential role in the enforcement scheme 
envisioned by Congress for the civil rights laws, and that for

23/ See Morgan v. District of Columbia. 824 F.2d at 1067; 
National Ass'n of Concerned Veterans. 675 F.2d at 1329; Copeland 
V. Marshall. 641 F.2d at 896.

- 23 -



all of the reasons discussed above, the decision below should be 
affirmed.

Whatever the outcome in this case, however, amici urge 
this Court to exercise its supervisory powers to establish a 
procedure for future resolution of interim fee disputes between 
civil rights plaintiffs and the government that would reduce this 
Court's caseload burden as well as the caseload burden of the 
District Court. Amici believe this case presents an excellent 
opportunity for the Court to establish a procedure to be 
implemented by the District Court after the plaintiffs in a civil 
rights case (class or individual action) have prevailed on the 
merits and all opportunities to pursue the necessary or 
appropriate appeals have been exhausted fi.e.. the case is at a 
stage where it is clear that the plaintiffs will ultimately be 
entitled to attorney's fees). Amici respectfully propose the 
following procedure.

First, the plaintiffs shall submit a request to the 
District Court for interim fees that sets forth an irreducible 
minimum amount. The necessary supporting documents regarding 
historical rates and attorney time descriptions shall be 
appended to the request.

Second, the government shall be required to state 
whether or not it agrees with the irreducible minimum amount 
requested by the plaintiffs. If the government does not agree 
with the plaintiffs' irreducible minimum, the District Court 
shall order the government to affirmatively state the amount the 
government reasonably believes is the irreducible minimum amount

- 24 -



and to state with particularity the reasons why it does not agree 
with the amount requested by the plaintiffs. If the government 
refuses to so state, the District Court shall award plaintiffs 
their requested amount, unless the District Court determines that 
the requested amount is not supported by the evidence presented.

If the government suggests an alternative irreducible 
minimiim amount that is clearly below any amount reasonably in 
dispute, then the District Court shall require the government to 
identify specifically the bases and reasons for such a 
reduction. The irreducible minimum amount of interim fees upon 
which the parties have evidenced an agreement shall, in any 
event, be paid. At the ultimate conclusion of the litigation, 
however, the District Court shall determine whether the 
government's proffered irreducible minimum amount was well 
grounded in fact and warranted by existing law or a good faith 
argument, and that it was not proffered for any improper 
purpose, such as to harass or to cause unnecessary delay or 
needless increase in the cost of litigation. If the District 
Court determines that the government's irreducible minimum 
amount does not meet these standards, then the District Court 
shall impose sanctions under Rule 11 of the Federal Rules of 
Civil Procedure upon the government.

CONCLUSION
Because of the chilling effect on the enforcement of 

the civil rights laws when the dilatory tactics of the 
government cause attorney's fee disputes arising out of civil 
rights class actions to be transformed into major litigations.

- 25 -



amici urge this Court to affirm the District Court's interim fee 
award if it exercises appellate jurisdiction. The Court may also 
decide to use this case as an opportunity to establish 
procedures for future expeditious resolution of interim fee 
award disputes. In the alternative, the Court should dismiss 
the appeal.

Respectfully submitted.

Roger E. Warm
Bryan T. Veis
Nina Glickman
Steptoe & Johnson
1330 Connecticut Avenue, N.W.
Washington, D.C. 20036
(202) 429-3000
Counsel for Amici Curiae

Dated: October 6, 1989

- 26 -



EXHIBIT A
Declaration of Joseph M. Sellers 

(September 10, 1987)



UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLOMBIA

MABEL K. KING,
Plaintiff,

V .

JAMES F. PAIAIER, et al.. 
Defendants.

Civil Action No. 83-1980-LFO

DECLARATION OF JOSEPH M. SELLERS

Joseph K. Sellers declares and states:
1. I am currently the Director of the Equal Employment 

Programi of the Washington Lawyers' Committee for Civil Rights 
Under Law ('Lawyers' Committee") and harve been employed as a 
staff attorney at the Lawyers' Committee since 1982. I have 
litigated numerous EEO claims and have lectured on the subject
of litigation under fee-shifting statutes. I have also consulted 
with numerous covmsel for plaintiffs in EEO cases, whose 
practices range from sole practice to the largest law firms in 
the Washington, D.C. metropolitan area-

2. As part of my responsibilities at the Lawyers' Committee 
since 1.S82, I have attempted to locate coxonsel in the Washington, 
D.C. metropolitan area for individual EEO claimants who appeared 
to have meritorious claims. This function became formalized in 
1985 with the establishment by the Lawyers' Committee of an equal 
employm>ent opportunity intake program.

3. I have directed the Lawyers' Cctmaittee's EEO Intake

F s ' ^ K -  ^



Program since its inception. Through the program, we receive and 
review requests for legal assistance in pursuing equal employment 
opportunity claims. Where necessary, I enlist private law firms 
to assist in assessing the EEO claims and, where the claims 
appear meritoreous, I also recruit private practitioners to join 
the Lawyers' Committee in furnishing legal representation.

3. Since 1985, the EEO Intake Program has completed reviews 
of 684 requests for assistance against public and private 
employers. Eighteen different law firms have assisted in the 
review of these claims. On 30 occasions, the Lawyers' Committee 
and private firms together have furnished legal representation to 
EEO claimants.

4. It has been our experience that most private 
practitioners representing EEO claimants who bring individual and

4class actions that are meritorious expect to rec^ve a fee for 
their services that is fvilly compensatory. They expect such fees 
to be comparable to fees paid them in other complex federal 
litigation and to reflect compensation for delay and contingency.

5. It has also been our experience that private 
practitioners are increasingly reluctant to xindertake 
representation in EEO cases on a contingency basis where the case 
will require significant expenditure of resources or will result 
in protracted litigation.

6. Given the substantial investment of time and resources 
demanded by EEO cases in which compensation is contingent on



success in the litigation, I believe that even fewer 
practitioners in the future will be available to furnish legal 
representation if there is no prospect of obtaining an 
enhancement for risk above the normal historic lodestar rate 
which is in fact adequate financially to compensate practitioners 
for the risk of non-payment. I believe that most private 
practitioneirs will expect that compensation for risk of non­
payment should be at the same level as would be received from 
other clients whose claims arise in non-fee shifting areas.

7. While a limited number of firms may be influenced to 
accept a specific case because such action is considered to be in 
the public interest, the concept of public interest is not 
sufficient to attract an adequate number of competent counsel to 
handle the number of deserving clients seeking lawyers. Even 
with the prospect of a contingency enhancement to the lodestar,
I have seen a decline in the number of of lawyers and firms 
willing to take individual cases. A large number of lawyers who 
were willing to take such cases on a contingent basis in the past 
are no longer willing to do so because of the risk of nonpayment 
and/or the delay in payment for their services.

8. Private practitioners in small firms have virtually 
refused to offer representation to individual EEO claimants 
unless the fees and costs generated by the litigation are paid 
contemporaneously. Only a substantial contingency enhancement 
which ensures that court-awarded fees fully reflect the risk of



non-payment and of delay in payment could, in my view, reverse 
this decline in the availadalility of counsel to represent 
deserving EEO claimants.

9. Based upon my review of the decisions of the trial court 
amd the court of appeals in Kina v. Palmer. I believe that the 
case presented challenging legal and factual issues. In my view, 
I would not have been able to find any law firm in the 
Washington, D.C. metropolitan area that would have furnished 
representation to Mrs. King simply on the basis that fees could 
have been produced. The chances of securing counsel would have 
increased if enhancement for risk of non-payment and for delay in 
payment were availzible. Realistically, I believe that my only 
hope of finding counsel for Mrs. King would have been at one of 
the larger firms which would have handled Mrs. King's claim on a 
pro bono basis. At those firms, the prospect of recovering fees 
in such cases is less important. Those fiirms, however, only 
accept a limited number of cases so that it is questionable that 
the Lawyers' Committee would have been successful in finding 
counsel for Mrs. King at all.

Under the penalty of perjury, I verify that the foregoing is
txue and accurate. Executed this lay of September 1987.

Joseph M. Sellers



EXHIBIT B
Declaration of Ann Barker 

(December 8, 1987)



UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA

MABLE A. KING,
Plaintiff
V.

JAMES F. PALMER, et al. 
Defendants

Civil Action No. 83-1980

DECLARATION

I, Ann Barker, hereby attest and affirm under the penalty of 

perjury:
1. This declaration is executed in response to a request for 

information made to me by the defendants in this action.
2. I am a member of the District of Columbia Bar. Since 

1984, I have held the position of Director of the Office of 
Public Service Activities for the District of Columbia Bar.

3. In this capacity, I supervise the Bar's Lawyer Referral 
and Information Service. This service maintains directories of 
qualified attorneys who have indicated they are available to 
accept referrals and who have paid a required registration fee. 
These attorneys are grouped in panels according to the subjects 
of their practice. After referrals are made, the Bar's 
involvement ends and decisions about representation are made 

between the panel attorneys and their clients.
4 . One panel is devoted to employment law. This panel is 

referred a variety of employment matters that are of differing 
complexity and difficulty. Employment discrimination claims are 
among the most difficult and complex matters referred to the

/ 7 ^



employment panel.
5. There are currently 33 attorneys listed on the Employment 

Law Panel. Of that number, 23 have indicated that they have some 
experience with employment discrimination law. Within this 
group of 23 attorneys, 16 have indicated they would be willing to 
consider accepting employment referrals on a contingency basis.
I have no knowledge of the terms of the contingency agreements 
which these panel attorneys contemplate or have negotiated. 
Further, I have no knowledge whether these 16 attorneys will 
accept employment discrimination cases in particular on a 

contingency basis.
6. It has been my experience during the three and one-half 

years that I have directed this office that employment 
discrimination cases are among the most difficult to place. It 
has been impossible to find legal representation for many of the 
callers who contact the Lawyer Referral and Information Service 
with employment discrimination cases. This is due to the limited 
number of attorneys who are willing to accept employment 
discrimination cases on a contingency fee basis, case complexity, 
the length of time required to resolve this type of case, and the 

lack of financial resources of the caller.
These statements are true and accurate, based on my personal

knowledge and belief.

A-
' /

Ann Barker, Esq.

Dated: 11 I I b l

ns



EXHIBIT C
Excerpts from the Deposition of Jane Lang McGrew 

(December 11, 1987)



Civil Action No. 73-0974

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ALFRED U. McKenzie, et al.,
Plaintiffs,

V.

RALPH E. KENNICKELL, JR.,Public Printer,
Defendant.

-  - X

Deposition of JANE LANG McGREW, a witness of lawful age, 
taken on behalf of counsel for Defendant in the above-entitled 
matter, pursuant to notice, before Shirley D. Jones, Notary 
Public, at law offices of Weissbrodt, Mirel, Swiss & McGrew, 
1614 Twentieth Street, N.W., Washington, D.C., commencing at 
3:07 p.m., Friday, December 11, 1987.
APPEARANCES:

VIRGINIA L. WHITE-MAHAFFEY, Attorney-at-Law 
Steptoe & Johnson 1330 Connecticut Avenue, N.W.Washington, D.C. 20036 Counsel for Plaintiffs

JOHN C. MARTIN, Attorney-at-Law United States Attorney's Office 555 Fourth Street N.W.Washington, D.C. 20001 Counsel for Defendant

2CZ 34'7-SS6'5 !SuIUx, ^cuTU.i & SuxiUi Dnc.



APPEARANCES (cont)
PAUL SPRENGER, Attorney-at-Law Sprenger, Olson & Shutes, P.A. 1614 Twentieth Street, N.W. Washington, D.C. 20006 Counsel for Deponent

ALSO PRESENT:
SHARON L. DAVIES Steptoe & Johnson 1330 Connecticut Avenue, N.W. Washington, D.C. 20036

202 347-SS63 JB u/izi, Sr er^iixoxtinq, One..



C O N T E N T S

WITNESS;
JANE LANG McGREW

EXAMINATION BY; 
Counsel for Defendant

EXHIBITS;
(None)

202 347-SSb:} JSuiCct. &  S u iA t i. az^choxtin^, Dnc.



29

1 THE WITNESS: No. I know of none against HUD.
2 BY MR. MARTIN
3 Q* I guess I should have prefaced that question with:
4 While you were there at HUD, were there court cases filed and
5 resolved, Title VII cases against HUD?
6 A. There may well have been. There were himdreds of
7 cases going on. I was only involved in major ones.
8 Q. Do you have a view —  Based on your knowledge of the
9 economics of law practice, do you have a view with respect to
10 whether or not, if contingency enhancements were routine, that
11 more Title VII discrimination cases would be filed against the
12 government?
13 A. I have to use myself as an example, Mr. Martin. I
14 very much enjoy my work in the Title VII area. I think I am
15 very knowledgeable and an effective lawyer in this area. But I
16 wouldn't touch one against the government because of the
17 difficulty involved in getting paid for that work. I think
18 also of Mr. Speiser's experience and the experience of the
IS other attorneys in the Chewning case. And I would have to say
20 that I think I am not by any means unique in my position and
21 that the enforcement of Title VII against the federal
22 government would be vastly improved if there was some assurance
23 that attorneys were going to be paid fairly and with adequate
24 recognition of the risk involved in undertaking that work.
25 Q. Then, is your answer to my question that you think

202 347-^̂ 65 SujSrt, S ’ S ut£ci ez/^cfxoxtina,



30

1 more Title VII cases would be filed if contingency enbancements
2 were routinely awarded?
3 A. Yes.
4 Q. Do you have a view with respect to whether that would
5 lead to the filing of more unsuccessful Title VII
6 discrimination cases?
7 A. My view is that it would lead the more successful and
8 capable lawyers to involve themselves in this representation.
9 Those are the lawyers who, like myself, have a choice about
10 what we can do with our time because we have plenty of people
11 who will pay for it on an hourly basis, regularly, month to
12 month. I believe that they would be more likely to file more
13 meritorious cases and more likely to bring the cases they file
14 to a successful conclusion, either through settlement or
15 through litigation.
16 Q. Are you aware of any person in this community who had
17 a valid meritorious Title VII claim and who could not find a
18 lawyer to represent them in a claim against the federal
19 government?
20 A. I wouldn't know because I will not talk to claimants
21 in the federal government. I refer them —  I have had many
22 call, who I refer to other attorneys who I know who will take
23 these cases. But I will not —  I don't know what happens to
24 them.
25 MR. MARTIN: Thank you very much. I have no further



31

1
2
3
4
5
6
7
8 
9

10
11
12
13
14
15
16
17
18
19
20 
21 
22
23
24
25

questions.
MS. WHITE-MAHAFFEY: Let me take a few moments to look 

at my notes.
(The deposition was briefly suspended in place.)
MS. WHITE-MAHAFFEY: I have no questions.
(Whereupon, at 4:06 p.m., the taking of the instant 

deposition was concluded.)

•7 ^ ^  -t/... r-





33

C E R T I F I C A T E
THE UNITED STATES OF AMERICA )

)IN THE DISTRICT OF COLUMBIA )

I, Shirley D. Jones, Notary Public, before whom the 
foregoing deposition was taken, do hereby certify that the 
witness whose testimony appears in the foregoing pages was duly 
sworn by me; that the testimony of said witness was recorded by 
me by stenotypy and thereafter reduced to t]rpewritten form; 
that said deposition is a true record of the testimony given by 
said witness; that I am neither counsel for, related to, nor 
employed by any of the parties to the action in which this 
deposition is taken; and, further, that I am not a relative of 
or employee of any attorney or counsel employed by the parties 
thereto, nor financially or otherwise interested in the outcome 
of the action.

202 347-SS65 S u l i z x ,  .s H a m ti  &  S u x / ^ i  ^ ^ c f io x t in ^ ,  Dna.



CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing Brief 
Amicus Curiae was hand-delivered this 6th day of October, 1989 
to the following persons:

John D. Bates 
Michael J. Ryan 
Wilma A. Lewis
Assistant United States Attorneys 
Judiciary Center Building 
Room 4205
555 4th Street, N.W.
Washington, D.C. 20001
Counsel for Appellants/Petitioners
Bradley G. McDonald 
John F. Karl, Jr.
McDonald & Karl
1919 Pennsylvania Ave., N.W.
Suite 300
Washington, D.C. 20006
Counsel for Appellees/Respondents
Daniel Rezneck
Ronald D. Lee
Arnold & Porter
1200 New Hampshire Ave., N.W.
Washington, D.C. 20036
Co-counsel for Respondent
the Honorable Harold H. Greene 
on Petition for Writ of Mandamus

Nina Glickman 
Steptoe & Johnson 
1330 Connecticut Ave., N.W. 
Washington, D.C. 20036 
(202) 429-3000



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