Foster v. Boorstin Brief for Appellee

    V.

DANIEL J. BOORSTIN,
Librarian of Congress, Appellee.

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

EARL J. SILBERT,
United States Attorney.

JOHN A. TERRY,
JOSEPH GUERRIERI, JR.,
RICHARD A. GRAHAM,
Assistant United States Attorneys.

C.A. No. 74-919



I N D E X

1

Page
Counterstatement of the Case 
Argument:

I. The District Court did not err in concluding 
that 42 U.S.C. § 2000e-5 (k) does not con­
template the award of attorney's fees to one 
who prevails in an administrative, rather
than a judicial proceeding -------------------  5
A. The Statutory Language -------------------  9
B. The Legislative History of 42 U.S C

§ 2000e-5 (k) -------------------- 1_______ 17
C. The Policy Underlying the Statute--------  23

II. Neither the Civil Service Commission nor the
employing agency possesses the plenary power 
to award attorneys1 fees as part of the 
process of adjudicating discrimination com­
plaints and making aggrieved employees whole - 30

III. The fact that appellant filed a protective
complaint in the District Court prior to 
the Library s undertaking a full investiga­
tion and hearing did not elevate appellant 
to the status of a "prevailing party" in 
the District Court so as to entitle him to 
attorneys' fees ----------------------------  of.

Conclusion 42

TABLE OF CASES
Alexander v. Gardner-Denver Co.. 415 U.S. 36 (1974) ___
lyeska Pipeline Service Co. v. Wilderness Societv

421 U.S. 240 (1975) ------ TIT______ V _____ .1_____

11

passim
Arcambe1 y. Wiseman, 3 U.S. (3 Dali.) 306 (1796) __ 6



Brown v. General Services Administration.
96 S. Ct. 1961 (1976) ----------------------------  8

Calvert Cliffs' Coordinating Committee v. Atomic 
Energy Comm'n, 146 U.S. App. D.C. 33,
449 F .2d 1109 (1971) ----- ---- ------------------- 17

^Chandler v. Roudebush, 96 S. Ct. 1949 (1976) ----------  11, 16, 23,
27

Evans v. Sheraton-Park Hotel. 164 U.S. App. D.C. 86,
503 F. 2d 177 (1974) ------------------------------  36, 38

F.D. Rich Co. v. United States ex rel. Industrial
Lumber Co. , 417 U.S. 116 (1974) ------------------  6

*FCC v. Turner, 169 U.S. App. D.C. 113,
514 F .2d 1354 (1975) -----------------------------  16

Fitzgerald v. United States Civil Service Comm'n,
407 F. Supp. 380 (D.D.C. 1975), appeal pending,
D.C. Cir. No. 76-1144 ----------------------------  34

Flanders v. Tweed, 82 U.S. (15 Wall.) 450 (1873) ------  6
Fleischmann Distilling Corp. v. Maier Brewing Co..

386 U.S. 714 (1974) ------------------------------  6
*Grubbs v. Butz, D.C. Cir. No. 73-1955,

decided July 26, 1976 ----------------------------  28
*Hackley v. Roudebush, 171 U.S. App. D.C. 376,

520 F .2d 108 (1975) ------------------------------  23, 34
Hall v. Cole, 412 U.S. 1 (1973) -------- --------------- 31
Hays Livestock Commission Co. v. Maly Livestock

Commission Co., 498 F.2d 925 (10th Cir. 1974) ----  13, 14, 15
Johnson v. Georgia Highway Express, Inc.,

488 F.2d 714 (5th Cir. 1974) ---------------------  23
Lynch v. Alsworth-Stephen Co.. 267 U.S. 364 (1925) ----  16

*Meeker v. Lehigh Valley R.R.. 236 U.S. 414 (1915) -----  12, 13, 14,
15 *

Page

ii.



Mello v. Secretary of Health, Education, and
Welfare, 8 EPD para. 9620 (D.D.C. 1974) ----------  4 , 41

Mills v. Lehigh Valley R.R., 238 U.S. 473 (1915) ------  13
* Natural Resources Defense Council v . Environmental 

Protection Agency. 168 U.S. App. D.C. Ill,
512 F .2d 1351 (1975) -------- --------------------- 7

Newman v. Piggie Park Enterprises, Inc.,
390 U.S. 400 (1968) ------------------------------  5j 23

Packard Motor Car Co. v. NLRB, 330 U.S. 485 (1947) ----  17
Palmer v. Rogers, 10 EPD, para. 10, 499 (D.D.C. 1975) -- 4
Parham v. Southwestern Bell Telephone Co..

433 F . 2d 421 (8th Cir. 1970) ---------------------  36} 37 ̂ 33 }
40 *

Parker v. Mathews, Civ. No. 75-0812 (April 1, 1976) ---  4, 5
^Pyramid Lake Paiute Tribe of Indians v. Morton,

163 U.S. App. D.C. 90, 499 F.2d 1095 (1974),
cert, denied, 420 U.S. 962 (1975) ----------------  7} 10

Rogers v. EEOC, 10 EPD para. 10, 416 (D.D.C. 1975) ---- 4
*Runyon v. McCrary, 96 S. Ct. 2586 (1976) --------------  6, 26, 29,

32
Smith v. Kleindienst, 8 FEP 752 (D.D.C. 1974), aff*d 

sub nom. Smith v. Levi, 527 F.2d 853
(D.C. Cir. 1975) ---------------------------------  4

Stewart v. Sonneborn. 98 U.S. 187 (1879) --------------  6
*Taylor v. Safeway Stores. Inc.. 524 F .2d 263

(10th Cir. 1975) ---------------------------------  39
United States v. Chemical Foundation, Inc..

272 U.S. 1 (1926) --------------------------------  7j 10 15
United States v. King, 395 U.S. 1 (1969) --------- 7
United States v. Oregon, 366 U.S. 643 (1961) ---- 17

^United States v. Testan. 424 U.S. 392 (1976) ----- 7, 9, 30, 39

Page

iii.



^United States v . Thayer-West Point Hotel Co.,
329 U.S. 585 (1947) ------------------------------  30, 31

*Van Winkle v. MeLucas, 537 F.2d 246 (6th Cir. 1976) ---  32
*Weeks v . Southern Bell Telephone & Telegraph Co, ,

467 F .2d 95 (5th Cir. 1972) ----------------------  39
Williams v. General Foods Corp., 492 F.2d 399

(7th Cir. 1974) ----------------------------------  4, 41

OTHER REFERENCES
7 U.S.C. § 210 (f) ------------------------------------  14
28 U.S.C. § 1920 -------------------------------- ------- 14, 39
28 U.S.C. § 2412--------------------------------------- 7, 15
42 U.S.C. § 1981--------------------------------------- 32
42 U.S.C. § 1983 --------------------------------------- 29
42 U.S.C. § 1988 --------------------------------------- 32
42 U.S.C. § 2000e -------------------------------------- 1
42 U.S.C. § 2000e-5 ------------------------------------ passim
42 U.S.C. § 2000e-6 ------------------------------------ 10, 11
42 U.S.C. § 2000e-16------------------------------   passim
47 U.S.C. § 206 ---------------------------------------- 16
5 C.F.R. §§ 713.213-713.216 ---------------------------  24, 25, 26,

27
5 C.F.R. § 713.217 ------------------------------------- 24
5 C.F.R. § 713.218 ------------------------------------- 24
5 C.F.R. § 713.221------------------------------------- 24
5 C.F.R. § 713.234 ------------------------------------- 25
5 C.F.R. § 713.271------------------------------------- 10, 24

Page



5 C.F.R. § 713.281------------------------------------  25
Library of Congress Regulation 2010-3.1 ----------------- 1
S. Rep. No. 92-681, 92d Cong., 2d Sess. 19 (1972) -----  22, 34
S. Rep. No. 92-415, 92d Cong., 1st Sess. (1971) ---------- 19
H.R. Rep. No. 914, 88th Cong., 1st Sess. 14 (1963) ------- 17
S. 2515, 92d Cong., 1st Sess. § 4 (a) (1971) ----------  19
118 Cong. Rec. 1844 (1972) --------------------- -----—  21
118 Cong. Rec. 1841 (1972) ---------------------- ------ 19
110 Cong. Rec. 12807-17 (1964) -----------------------  17
Office of Federal Equal Employment Opportunity,

Discrimination Complaints Examiners Handbook
(1973)--------------------------------------------  23, 25 *

Page

* Cases chiefly relied upon are marked by asterisks.

v .



QUESTIONS PRESENTED*
In the opinion of appellee, the following questions are 

presented:

I. Whether the District Court properly denied the award of 
attorneys' fees for professional services rendered during the ad­
ministrative processing of a discrimination complaint filed pur­
suant to 42 U.S.C. § 2000e-16, especially when appellant did not 
actually prevail in the District Court?

II* Aether appellee has the plenary power to award attorneys' 
fees as an adjunct of his power to grant "appropriate remedies" 
in the administrative process iteelf, without regard to the filing 
of an action in a federal court?

III. Whether the fact that appellant filed a complaint in the 
District Court prior to the completion of the administrative pro­
ceedings in which he obtained the relief he sought, thereby 
rendering the District Court action moot, made him a "prevailing 
party" so as to warrant an award of attorneys' fees?

* This case has not previously been before this Court.



UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT

i

No. 76-1487

GEORGE FOSTER,
v.

DANIEL J. BOORSTIN,
Librarian of Congress,

Appellant,

Appellee.

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

BRIEF FOR APPELLEE 

COUNTERSTATEMENT OF THE CASE
On June 17, 1974, appellant, a black bindery foreman in the 

Library of Congress, filed a complaint in the District Court pur­
suant to 42 U.S.C. § 2000e, naming his employer, the Librarian of 
Congress, as the party defendant. He alleged that he had been the 
victim of certain policies which discriminated against him because 
of his race, thereby precluding him from enjoying promotional op­
portunities and better conditions of employment.- In his

1/ Appellant averred that he had initially filed an administrative
S°?000enifiO^ arCha27, 1?74, aS rec*uired hY statute, 42 U.S.C.20?n ? 1 <b)’ and Library of Congress Regulation
? ^ ™ aPPellant * administrative complaint was dis-

tioned An n  1r ’ 1974  ̂ fOV failure to supply sufficient informa-
to ?h«ltPP WaS advlSed that he had thirty days within whichto challenge that action by filing suit in the District Court.



2

complaint appellant sought declaratory and injunctive relief, in­
cluding the award of back pay and attorney's fees. However, on 
July 30, 1974, counsel for the parties entered into a stipulation
seeking to stay all further court proceedings pending a renewed

2/
consideration of appellant's administrative complaint. On 
August 5 the Honorable John Lewis Smith, Jr., approved the stipu­
lation and stayed the proceedings in the District Court.

On January 28, 1976, appellant, having prevailed at the 
administrative level, moved in the District Court for an award of 
attorney's fees in the amount of $12,146 pursuant to 42 U.S.C.

2/ Following a review of the initial decision to dismiss appel­
lant's administrative complaint by the General Counsel's Office of 
the Library of Congress, the cancellation notice of May 17, 1974, 
was vacated on July 8, and the complaint was submitted for further 
investigation and recommendations by the Library's Equal Oppor­
tunity Office. The initial investigation resulted in a finding 
of no discrimination on November 29, 1974. However, the matter 
was reconsidered following a request by counsel for appellant on 
December 14, 1974, and on February 6, 1975, Elizabeth Hamer Kegan, 
the Acting Deputy Librarian, found that a disparity existed in 
training opportunities between blue collar employees such as ap­
pellant and other federal employees. However, no discrimination 
was found. Appellant then requested and received a hearing on 
his complaint, and on July 31, 1975, the hearing examiner found 
that appellant had been denied training opportunities because of 
his race and his blue colloar status. The examiner recommended 
that appellant be promoted to an appropriate GS-12 position and 
that he be awarded back pay at the GS-12 level from August 12, 
1974. Following a request for reconsideration by John G. Lorenz, 
Acting Librarian, the examiner reaffirmed his original conclusions 
and recommendations, and they were adopted by the Acting Librarian 
on November 11, 1975 (App. l9a-53, 88-167).



3
3/ 4/

§§ 2000e-5 (k) and 20G0e-16 (d). Nearly all of the attorney's 
fees claimed by appellant related to the administrative proceedings 
in the Library of Congress. Appellee opposed the motion, and on 
April 7, 1976, the District Court filed a memorandum and order 
denying it. The court said:

J7 42 U .S,C. § 2000e-5 (k) provides:
In any action or proceeding under this sub­

chapter the court, in its discretion, may allow 
the prevailing party, other than the Commission 
or the United States, a reasonable attorney's fee 
as part of the costs, and the Commission and the 
United States shall be liable for costs the same 
as a private person.

4/ 42 U.S.C. § 2000e-16 (c) and (d) provide:
(c) Within thirty days of receipt of notice 

°f final action taken by a department, agency, or 
unit referred to in subsection (a) of this section, 
or by the Civil Service Commission upon an appeal 
from a decision or order of such department, 
agency, or unit on a complaint of discrimination 
based on race, color, religion, sex or national 
origin, brought pursuant to subsection (a) of
this section, Executive Order 11478 or any suc­
ceeding 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 com­
plaint, or by the failure to take final action on 
his complaint, may file a civil action as provided 
in section 2000e-5 of this title, in which civil 
action the head of the department, agency, or unit, 
as appropriate, shall be the defendant.

(d) The provisions of section 2000e-5 (f) 
through (k) of this title, as applicable, shall 
govern civil actions brought hereunder.



Having examined the entire record, the Court 
concludes that plaintiff is not a "prevailing 
party" within the meaning of 42 U.S.C. § 2000e-5 
(k) and therefore not entitled to attorney's fees. 
The facts of this case distinguish it from the 
cases relied upon by plaintiff. In Smith v. 
Kleindienst. 8 FEP 752 (D.D.C. 1974), aff'd sub 
nom. Smith v. Levi, 527 F .2d 853 (D.C. Cir. 1975), 
Judge Bryant awarded attorney's fees to a plaintiff 
who had been granted summary judgment, noting that 
the administrative proceedings had comprised the 
record in the court action. In Palmer v. Rogers.
10 EPD, para. 10, 499 (D.D.C. 1975), Judge Flannery 
allowed attorney's fees to a plaintiff who pre­
vailed in court on one count of an eight count com­
plaint. In Rogers v. EEOC, 10 EPD para. 10, 416 
(D.D.C. 1975), Judge Gesell awarded fees after a 
trial to the court resulted in a finding for the 
plaintiff. In a recent case, Parker v. Mathews.
Civ. No. 75-0812 (April 1, 1976), Judge Richey 
granted fees to plaintiff's counsel after the 
matter had been settled out of court. His opinion 
noted that the Department of Health, Education, 
and Welfare had repudiated both on the administra­
tive level and in judicial proceedings its prior 
finding of discrimination against plaintiff.

The factual situation in the instant case is 
more closely related to Mello v. Secretary of HEW.
8 EPD para. 9620 (D.D.C. 1974). There plaintiff 
filed suit, obtained a remand to the appropriate 
administrative appeals unit, received the relief 
she originally sought, and then resigned from the 
government position to which she had been appointed. 
Chief Judge Jones concluded:

"There is nothing this Court has done to 
effectuate relief for plaintiff of the 
discrimination experienced by her in her 
employment by the Department of Health, 
Education, and Welfare. Since she was 
not the 'prevailing party' in this action, 
she may not recover her attorney's fees."

- 4 -

Id. at 5658. Cf. Williams v. General Foods Corn. 
492 F .2d 399, 408 (7th Cir. 1974)T



5

This Court has likewise merely received plain­
tiff's discrimination complaint and stayed its 
hand by consent of the parties. No further ju­
dicial relief has been pursued or obtained. Un­
like the Parker case, supra, defendant's reconsid­
eration of plaintiff's administrative complaint 
involved the agency's setting aside of a threshold 
procedural error, which permitted the interrupted 
investigative process to go forward. Under all of 
these circumstances, plaintiff's administrative 
success does not entitle him to attorney's fees as 
the "prevailing party" under 42 U.S.C. § 2000e-5 
(k). Although the statute should be accorded a 
liberal construction, see Newman v. Piggie Park 
Enterprises, [Inc.,] 390 U.S. 400 (1968), it should 
not -- absent special circumstances -- be a vehicle 
for transforming administrative investigations into 
compensable adversary proceedings. (App. 168-170.)

Five days later the court dismissed the action as moot. This 
appeal followed.

ARGUMENT
I

The District Court did not err in concluding 
that 42 U.S.C. § 2000e-5 (k) does not con­
template the award of attorney's fees to one 
who prevails in an administrative, rather 
than a judicial proceeding._____________

Appellant contends broadly that 42 U.S.C. § 2000e-5 (k), as 
incorporated by reference in 42 U.S.C. § 2000e-16, itself authorizes 
the award of reasonable attorney's fees to any party who prevails 
even at the administrative level, without regard to whether the 
District Court has played any role in his success. In short,



6

appellant argues that the words of the statute ("[iln anv action
5/

or proceeding"), the legislative history, and the general inter­
pretive rule according liberal construction to civil rights legis­
lation demonstrate that the District Court erred in not according 
appellant reasonable attorney's fees.

The long established rule is that, absent a statute or enforce­
able contract, litigants in federal court pay their own attorney's
fees. E.£., F,D. Rich Co. v. United States ex rel. Industrial

6/
Lumber Co., 417 U.S. 116, 126-31 (1974). To create an exception 
to this rule, a statute must explicitly and specifically provide 
for attorney s fees. Alyeska Pipeline Service Co. v. Wilderness 
Society, 421 U.S. 240, 260 (1975). See also Runyon v. McCrary.
96 S. Ct. 2586, 2600-2601 (1976). Moreover, "the circumstances 
under which attorney's fees are to be awarded and the range of 
discretion of the courts in making those awards are matters for 
Congress to determine. Alyeska Pipeline Service Co. v. Wilderness 
Society, supra, 421 U.S. at 262.

17 See note 3, supra.
6/ See also Fleischmann Distilling Corp. v. Maier Brewing Co.
386 U.S. 714, 717-718 (1974); Stewart v. Sonneborn, 98 U.S. 187 
(1879); Flanders v. Tweed, 82 U.S. (15 Wall.) 450 (1873);
Arcambel v. Wiseman. 3 U.S. (3 Dali.) 306 (1796).



7
With respect to the federal government, the rule is rein­

forced by 28 U.S.C. § 2412, which precludes the award of attorney's 
fees against the federal government in any civil action to which
the United States or any agency or official thereof is a party,

7/except as otherwise specifically provided by statute. Thus 28 
U.S.C. § 2412 codifies "the principle of sovereign immunity [which] 
precludes the award of costs and fees against the United States 
'in the absence of a statute directly authorizing it . . . ,
Natural Resources Defense Council v. Environmental Protection 
Agency, 168 U.S. App. D.C. Ill, 113, 512 F.2d 1351, 1353 (1975),
citing United States v. Chemical Foundation, Inc.. 272 U.S. 1, 208/
(1926). Accordingly, before a statute can be said to authorize 
attorneys fees, it must constitute a waiver of sovereign immunityj 
and such "a waiver of the traditional sovereign immunity," the 
Supreme Court has recently reiterated "'cannot be implied but musti
be unequivocally expressed.'" United States v. Testan. 424 U.S.
392, 399 (1976), citing United States v. King. 395 U.S. 1, 4 (1969).

It is against this background that the Court must consider 
the question raised on this appeal: whether, in a suit brought by

~jJ See note 15, infra.
8/ See also Pyramid Lake Paiute Tribe of Indians v. Morton, 163 
U.S. App. D.C. 90, 499 F.2d 1095 (1974), cert, denied. 420 U.S.
962 (1975) (absent direct statutory authority, an award of 
attorneys' fees against the federal government is not possible).



8

a federal employee under Title VII of the Civil Rights Act of 
1964, as amended by the 1972 Equal Employment Opportunity Act of 
1972, 42 U.S.C. 2000e-16, attorneys' fees for legal services per­
formed at the administrative level are recoverable as part of 
the costs of the litigation, regardless of whether the employee 
ever prevails in the District Court itself. The question is one 
of continuing importance to the Government because federal em­
ployees with Title VII claims must first seek relief from the 
agency that allegedly discriminated against them. 42 U.S.C. 
2000e-16 (c); Brown v. General Services Administration. 96 S. Ct. 
1961 (1976).

We agree that 42 U.S.C. § 2000e-5 (k) allows a District 
Court in a Title VII suit to tax a federal agency for the legal 
expenses incurred by a successful plaintiff in the District 
Court. But, in our view, the statute does not authorize a court 
to award a fee as compensation for legal services performed 
solely at the administrative level. Nor does the legislative 
history, judicial constructions of other similar attorney's fee 
statutes, or the nature of the administrative process support 
such a view; indeed, we submit, they support the District Court's 
conclusion to the contrary.



9

A . The Statutory Language
Under 42 U.S.C. § 2000e-5 (k) the "court" may award a pre­

vailing party "a reasonable attorney's fee as part of the costs" 
of the case in connection with any "action or proceeding" com­
menced under Title VII. The statute makes explicit when and 
under what circumstances the federal government is liable for 
attorney's fees: only in an "action or proceeding" commenced
under Title VII, and then only as part of the "costs" and in the 
same manner as a "private person." Npthing on the face of the 
statute suggests that the federal government can be taxed for 
legal fees incurred by a federal employee in administratively 
pressing his claims. The statute makes no reference to matters 
prior to the filing of the Title VII "action or proceeding." Un­
less the phrase can be read as encompassing prior administrative 
activity, the "unequivocally expressed" wavier of sovereign im­
munity necessary to hold the government liable for attorneys' fees 9./
is absent. S_ee United States v. Testan. supra: United States v.
—/ Although the award of attorney's fees in a private sector 
case does not involve questions of sovereign immunity, the fee 
award in such suits, as in the federal sector, cannot include 
compensation for legal services before the Equal Employment Op­
portunity Commission (EEOC) because 42 U.S.C. § 2000e-5 (k) does 
not contain any explicit and specific provision allowing for such 
awards* Aleyeska Pipeline/toTv. Wilderness Society, supra. 421 
U.S. at 260. We have discovered no private sector Title VII case 
which holds that compensation for legal services performed at the
fE<(k)leVel iS 3 fee which may be awarded under 42 U.S.C. § 2000e-



10

Chemical Foundation, Inc., supra; Pyramid Lake Paiute Tribe of 
Indians v. Morton, supra note 8.

The term "action," as used in Title VII, refers exclusively 
to civil actions brought in a United States District Court. See 
42 U.S.C. §§ 2000e-5 (f), 2000e-6 (a), 2000e-16 (c). Such civil 
actions can be brought by those private sector employees and fed­
eral employees who have satisfied the prime jurisdictional re-

10/
quirement of filing an administrative complaint. 42 U.S.C. §§
2000e-5 (f)(1), 2000e-16 (c). While the prescribed procedures

11/
are not identical, in both the federal sector and the private
10/ Before a private sector employee may bring suit under 42 U.S.C. 
§ 2000e-5 (f)(1), a discrimination charge must first be filed with 
the EEOC. If, after investigating the charge, the EEOC brings 
suit, the aggrieved employee may intervene in that action. How­
ever, if the EEOC dec lines to bring suit, or after 180 days from 
the filing of the charge has not filed a civil action, an inde­
pendent suit may be brought in a United States District Court by 
the aggrieved employee.

Similarly, before a federal employee may bring a Title VII 
suit, a discrimination charge must be filed with the employing 
agency. 42 U.S.C. § 2000e-16 (c). An aggrieved employee may 
file suit in a United Slates District Court from an adverse ad­
ministrative decision, Ae may file suit 180 days after the filing 
of the complaint if no final agency decision has been rendered.
11/ The most significant difference is that a federal employee 
may receive full relief by administrative adjudication, see 42 
U.S.C. § 2000e-16 (b); 5 C.F.R. § 713.271, whereas in the private 
sector the administrative role of the EEOC is limited to assist­
ing and promoting conciliation of the dispute.



11

sector aggrieved employees are entitled to a de novo trial in the 
District Court on their discrimination claims. Chandler v. 
Roudebush, 96 S. Ct. 1949 (1976); Alexander v. Gardner-Denver Co.. 
415 U.S. 36 (1974). The respective provisions authorizing these 
civil actions, 42 U.S.C. § 2000e-5 (f) and 42 U.S.C. § 2000e-16, 
clearly distinguish between the administrative and judicial levels. 
The term "action" is never used in connection with administrative 
matters.

Similarly, the term "proceeding" as used in Title VII refers 
exclusively to judicial proceedings. Indeed, it refers to a 
specific kind of civil action which the Equal Employment Oppor­
tunity Commission is authorized to institute in the District

12/Court. In addition to the EEOC's other authority, "[i]n any 
case in which an employer, employment agency, or labor organiza­
tion fails to comply with an order of a court issued in a civil 
action brought under this section [42 U.S.C. § 2000e-5], the 
[EEOC] may commence proceedings to compel compliance with such 
order. 42 U.S.C. § 2000e-5 (i) (emphasis added). A District
12/ The EEOC may also bring a civil suit on behalf of a private 
sector employee, 42 U.S.C. § 2000e-5 (f)(1), and may bring 
pattern and practice suits on its own or on behalf of an ag­

grieved employee, 42 U.S.C. § 2000e-6.



12

Court suit by the EEOC under 42 U.S.C. § 2000e-5 (i) is character­
ized as a "proceeding" by 42 U.S.C. § 2000e-5 (j), and the refer­
ence in 42 U.S.C. § 2000e-5 (k) to "proceeding" is to such a suit.

Without reference to the statutory fabric which we explore 
here, appellant contends that the breadth of the time "proceeding" 
and the "action" could encompass administrative complaints. How­
ever, we submit that far from being broad, amorphous terms, those 
words in their statutory context have specific and unambiguous 
meaning as terms of art. In short, neither the term "action" 
nor the term "proceeding," as used in 42 U.S.C. § 2000e-5 (k), 
refers to any activity prior to the commencement of a District 
Court suit.

It was the similar absence of any reference to proceedings 
"anterior" to the suit that formed the basis of the Supreme 
Court's holding in Meeker v. Lehigh Valley R.R.. 236 U.S. 414, 
432-433 (1915), that section 8 of the Interstate Commerce Act 
did not allow the award of attorneys' fees for proceedings before 
the Interstate Commerce Commission. In Meeker the plaintiff 
brought suit in the District Court under section 16 (2) of the 
Interstate Commerce Act to enforce a reparation order previously 
issued by the Commission against the defendant railroad. Section 
8 of the Act generally allowed any person injured by a common



13

carrier's violation of the Act to recover the damages he had sus­
tained, "together with a reasonable counsel or attorney's fee, to 
be fixed by the court in every case of recovery which attorney's 
fee shall be taxed and collected as part of the costs of the suit. 
The District Court awarded the plaintiff, who participated in the 
reparation proceeding before the Commission, $20,000 in attorney's 
fees "expressly apportioned in equal amounts between the services 
in the proceeding before the Commission and services in the action 
in court." _Id. at 431. The Court of Appeals reversed. The 
Supreme Court, however, reversed the Court of Appeals and affirmed 
the judgment of the District Court, after modifying it by eliminat 
ing the allowance of attorneys' fees for services before the Com­
mission. In a unanimous decision, the Court held:

[T]he services for which an attorney's fee 
is to be taxed and collected are those in­
cident to the [District Court] action . . . 
and not those before the Commission. This 
is not only implied in the words of [sec­
tions 8 and 16] but is suggested by the 
absence of any reference to proceedings 
anterior to the action. 236 U.S. at 432.

13/
See also Millsv. Lehigh Valley R.R.. 238 U.S. 473, 482 (1915).
The same considerations are equally applicable here.
13/ The Supreme Court's decision in Meeker was followed by the 
Tenth Circuit in Hays Livestock Commission Co. v. Maly Livestock 
Commission Co., 498 F.2d 925, 933 (10th Cir. 1974), in which the 
court held that attorneys' fees for legal services performed at

(Footnote continued on next page.)



14

Furthermore, 42 U.S.C. § 2000e-5 (k) allows attorney's fees 
to be taxed as part of the "costs." The allowable litigation ex­
penses for which the Government is liable for as costs are pro-

14/
vided for in 28 U.S.C. § 1920. The items listed in that statute, 
13/ Footnote continued from preceding page.
the administrative level were not allowable under section 210 (f) 
of the Parkers and Stockyard Act, 7 U.S.C. § 210 (f). The court 
declared in Hays:

In line with Meeker, we hold that the plain 
language of [7 U.S.C.] § 210 (f) precludes 
recovery of attorney's fees incurred in . . . 
proceedings before the Secretary . . . Only 
fees authorized "as part of the cost of the 
suit" to enforce reparation orders in the 
district court are allowable. 498 F.2d at 
933.

14/ 28 U.S.C. § 1920 provides:
A judge or clerk of any court of the United 
States may tax as costs the following:
(1) Fees of the clerk and marshal;
(2) Fees of the court reporter for all or 
any part of the stenographic transcript 
necessarily obtained for use in the case;
(3) Fees and disbursements for printing and 
witnesses;
(4) Fees for execmplification and copies of 
papers necessarily obtained for use in the 
case;
(5) Docket fees under section 1923 of this 
title.

(Footnote continued on next page.)



15

e •£•> docket fees, clearly pertain to expenses incurred only in 
the district court. Since 28 U.S.C. § 2412 only waives sovereign 
immunity for the expenses enumerated in section 1920, the costs 
incurred by a Title VII plaintiff at the administrative level are 
not recoverable. See United States v. Chemical Foundation. Inc., 
supra, 272 U.S. at 20. See also Alyeska Pipeline Service Co. v. 
Wilderness Society, supra. 421 U.S. at 255-256.

It would be a strained construction to read 42 U.S.C. § 2000 
e-5 (k) as allowing attorneys' fees for legal services performed 
at the administrative level to be recovered as part of the costs, 
but not to allow the recovery of other administrative expenses.
A reasonable reading of the statute compels the conclusion that, 
by including attorney's fees as part of the costs, Congress in­
tended such fees to be recoverable only for work done in the 
District Court. See Meeker v. Lehigh Valley R.R.. supra. 236 U.S. 
at 432, Hays Livestock Commission Co. v. Maly Livestock Commission 
Co^, supra note 13, 498 F.2d at 933. As the Supreme Court recent­
ly pointed out in construing another provision of Title VII, "the 
plain, obvious and rational meaning of a statute is always to be 
preferred to any curious, narrow, hidden sense that nothing but
14V Footnote continued from preceding page.

A bill of costs shall be filed in the case and,
upon allowance, include in the judgment or decree.



16

the exigency of a hard case and the ingenuity and study of an acute 
and powerful intellect would discover." Chandler v. Roudebush, 
supra, 96 S. Ct. at 1953, quoting from Lynch v. Alsworth-Stephen 
Co., 267 U.S. 364, 370 (1925).

Finally, we note that 42 U.S.C. § 2000e-5 (k) makes the fed­
eral government liable for attorney's fees the same as a "private 
person." In FCC v. Turner, 169 U.S. App. D.C. 113, 115, 514 F.2d 
1354, 1356 (1975), this Court ruled that attorneys' fees could not 
be assessed against a private litigant for legal services performed 
by the prevailing party's counsel in proceedings before the Federal 
Communications Commission. The Court noted that "provisions of 
the [Federal Communications] Act provide for the award of attorney's 
fees in court litigation." Id. at 115, 514 F.2d at 1356 (emphasis 
added). The attorney's fee provision of the Communications Act 
to which the Court referred in Turner, like the provision involved 
here, allows for attorney's fees to be recovered "as part of the 
costs in the case." 47'U.S.C. § 206.

In sum, we submit that the absence of clear and unambiguous 
language allowing attorneys' fees for professional services rend­
ered in the administrative form is fatal to appellant's arguments, 
given the rules of construction applying to the recovery of at­
torney's fees. Indeed, it is appellant's very need to rely upon
strained and attenuated arguments to reach his ultimate conclusion 
that betrays the frailty of his position.



17

B. The Legislative History of 42 U.S.C 
§ 2000e-5 (k)_______

Although the language of 42 U.S.C. § 2000e-5 (k) clearly does 
not allow attorneys' fees to be awarded for legal services per­
formed at the administrative level, and thus the Court need look

£ 15/no further than the plain meaning of the statute, any possible
doubt as to the availability of fees for work done at the adminis­
trative level can be conclusively laid to rest by a review of the 
legislative history.

42 U.S.C. § 2000e-5 (k) was enacted as part of Title VII of 
the Civil Rights Act of 1964. The version reported by the House 
Judiciary Committee contained no provision for attorneys' fees.
It provided only for the award of costs against the EEOC in con­
nection with any action or proceeding under Title VII. See H.R. 
Rep. No. 914, 88th Cong., 1st Sess. 14 (1963).

The enacted -- and current -- version was part of the Dirksen- 
Mansfield substitute bill introduced from the floor during the

c
Senate debate on the 1964 Act. 110 Cong. Rec. 12807-17 (1964).

*1
In explaining the proposed amendment to the House bill, Senator 
Dirksen stated:

15/ ^United States v. Oregon, 366 U.S. 643 (1961); Packard Motor 
Car_Co. v. NLRB, 330 U.S. 485, 492 (1947); Calvert Cliffs' Co­
ordinating Committee v. Atomic Energy Comm'n. 146 IT. s Ann p C 
33, 50, 449 F .2d 1109, 1126 (1971). PP *



18

This paragraph, which originally provided only 
that the [EEOC] was liable for costs the same as 
a private person, has been relettered K and ex­
panded to permit the court to award the prevail­
ing party, other than the Commission or the United 
States, a reasonable attorney's fee as part of the 
cost and makes both the Commission and the United 
States liable for costs. Id. at 12819.

The only other reference to the attorneys' fee provision in the 
debate on the 1964 Act was made by Senator Humphrey during his 
detailed explanation of the changes made in the House version of 
Title VII by the Dirksen-Mansfield substitute:

Section 706 [(k)] provides for the award of at­
torney's fees to the prevailing party other than 
the Commission and the United States. This 
should make it easier for a plaintiff of limited 
means to bring a meritorious suit. The provision 
for the taxing of costs against the Commission and 
the United States is similar to that in section 
707 (h) of the House bill. Id. at 12724.

The 1964 Act permitted suits by aggrieved private sector 
employees only after prior resort to the EEOC. It did not 
authorize the EEOC to bring suits on their behalf, but it did 
authorize the EEOC to bring a proceeding in the District Court 
to enforce any order issued in an action brought by the employee. 
42 U.S.C. § 2000e-5 (i) (1964). When the Act was amended in 
1972, the protections of Title VII were extended to federal em­
ployees, and the EEOC was given authority to bring suits on be­
half of aggrieved private sector employees. 42 U.S.C. §§ 2000e-5



19

(f)(1), 2000e-16 (c) (Supp. V, 1975). The attorney's fee pro­
vision of Title VII, 42 U.S.C. § 2000e-5 (k), which was left un­
changed, was incorporated "as applicable" in the section allowing 
suits by federal employees. 42 U.S.C. § 2000e-16 (d).

When it was considering the 1972 amendments, the Senate 
passed an amendment to 42 U.S.C. § 2000e-5 (k) which would have 
allowed the EEOC to award attorneys' fees to parties prevailing 
in proceedings before it. 118 Cong. Rec. 1847 (1972). This 
amendment was adopted at a time when the bill pending in the 
Senate contemplated full hearings before the EEOC in connection 
with the proposal that the EEOC be given cease-and-desist 
authority. Judicial review of a cease-and-desist order was to 
lie in a United States Court of Appeals; the scope of review was 
not de novo, but was to be based on the record developed during 
the EEOC proceedings. See S. Rep. No. 92-415, 92d Cong., 1st 
Sess. 17-22, 22-23, 37-41 (1971); S. 2515, 92d Cong., 1st Sess.
§ 4 (a) (1971).

The amendment, which was introduced by Senator Gambrell, 
provided in pertinent part:

In any action or proceeding under this title, the 
Commission or court, as the case may be, may allow 
the prevailing party, other than the Commission or 
the United States, a reasonable attorney's fee as 
part of the costs. 118 Cong. Rec. 1841 (1972) .

Senator Gambrell explained:



20

Under the type of cease-and-desist procedure 
the committee insists on, I think the whole ball 
game is there in front of the Commission itself. 
This amendment is not to provide for payment prior 
to that, but it is for payment under the order 
issued by the Commission . . . .  Id. at 1844.

Senator Mondale, who offered an amendment to clarify the language 
in Senator Gambrell's version, said in reviewing his proposed 
amendment:

The underlying law, which is unchanged by the 
bill, provides that in any action or proceeding 
under this title, the court, in its discretion, 
may allow the prevailing party -- other than the 
Commission or the United States -- a reasonable 
attorney's fee as part of the cost; and the Com­
mission and the United States shall be liable for 
the costs the same as a private person.

p e  proposed substitute would liberalize that 
provision in two basic respects. First, it would 
add authority to award costs to the prevailing 
party with respect to the cost of a proceeding 
before the Commission. The underlying law to 
which I have referred does not permit the awarding 
of fees with respect to proceedings before the 
Commission. So it liberalizes the fee awarding 
powers in that respect. Id. at 1845 (emphasis added).

The amendment, as modified by Senator Mondale's clarifying lan-
J , 16/ guage, was adopted by the Sera te and passed as modified. Id.

at 1847-1848.

S T  The amendment adopted by the Senate provided:
In any action or proceeding under this 

title the Commission or Court, as the case may 
be, may allow the prevailing party, other than

(Footnote continued on next page.)



21

16/ continued;

the Commission or the United States, a reasonable 
attorney's fee as part of the costs, and the Com­
mission and the United States shall be liable for 
costs the same as a private person. Any prevail­
ing party that is an employer of less than twenty- 
five employees or a labor organization of less 
than twenty-five members shall, upon application 
to the Commission, be indemnified by the United 
States for the cost of his defense against the 
charge in an amount not to exceed $5,000, includ­
ing all reasonable expenses and attorney's fees 
incurred after the serving of notice on him of the charge.

Any prevailing party that is an employer of 
twenty-five to one hundred employees whose average 
income from such employment is less than $7,500, 
or a labor organization with twenty-five to’one* 
hundred members, shall, upon application to the 
Commission, be indemnified by the United States 
for one-half of the cost of his defense against 
the charge not to exceed $2,500, including all 
reasonable expenses and attorney's fees incurred 
after the serving of notice on him of the charge. 
The costs evidenced by respondent's vouchers of 
his expenses and attorney's fees shall be deemed 
reasonable so long as they are comparable to the 
total amount of the expenses and attorney's fees 
incurred by the Commission in investigating the 
prosecution of the charge. Disallowance of any 
part of such request shall be made a part of the 
Commission's order in such proceedings. Any 
United States court before which a proceeding 
under this title shall be brought may upon request 
by the respondent make the determination provided 
for in this subsection. The Treasurer of the 
United States shall indemnify the respondent as 
provided for herein upon certification by the 
Commission. 118 Cong. Rec. 1844 (1972) (emphasis added).

»



22

The Senate, however, ultimately rejected that part of the 
legislation giving EEOC cease-and-desist authority, and with it 
rejected the requirement of hearings before the EEOC. 118 Cong. 
Rec. 3979-3980, 4944 (1972). While the amended attorneys' fee 
provision remained in the bill as passed by the Senate, it was 
eventually deleted in conference, and the laguage of the 1964 Act 
remained unchanged. S. Rep. No. 92-681, 92d Cong, 2d Sess. 19 
(1972).

Thus, we maintain, the legislative history conclusively 
demonstrates that attorneys' fees for professional services at 
the administrative level are not recoverable under 42 U.S.C.
§ 2000e-5 (k). It was clearly the understanding of Congress in 
1972 that 42 U.S.C. § 2000e-5 (k) , as enacted in 1964, did not 
permit attorneys' fees for proceedings before the EEOC when it 
rejected the proposed amendment to provide for such fees.

Moreover, since private sector activity before the EEOC is 
the counterpart of administrative proceedings in the federal 
sector, and since 42 U.S.C. § 2000e-5 (k) is controlling as to 
all "civil actions" brought by federal employees, 42 U.S.C.
§ 2000e-16 (d), the only possible conclusion is that attorneys' 
fees cannot be recovered by federal employees for legal services 
performed at the administrative level. The Supreme Court has 
recently stressed that the nature of the proceedings in the 
District Court under 42 U.S.C. § 2000e-5 is, except for those



23

aspects detailing the enforcement responsibilities of the EEOC 
and Attorney General, identical in private and federal sector 
suits under Title VII. Chandler v. Roudebush. supra; accord. 
Hackley v. Roudebush. 171 U.S. App. D.C. 376, 387-388, 520 F.2d 
108, 119-120 (1975). Any other reading of 42 U.S.C. § 2000e-16 
(d), which incorporates portions of 42 U.S.C. § 2000e-5 "as 
applicable," "would require a strained and unnatural reading" of 
the statute." Id. at 389, 520 F.2d at 121.

C . The Policy Underlying the Statute

The purpose of 42 U.S.C. § 2000e-5 (k) is, of course, to 
effectuate the congressional policy against employment discrim­
ination by encouraging employees injured by unlawful discrimina­
tion to seek judicial relief. Johnson v. Georgia Highway Express. 
_Inc_. , 488 F . 2d 714, 716 (5th Cir. 1974). See also Newman v.
Piggie Park Enterprises. Inc., supra. 390 U.S. at 401-402. 
Stretching 42 U.S.C. § 2000e-5 (k) to allow a federal employee 
to recover attorneys' fees for work done at the administrative 
level will not necessarily advance that policy.

Administrative proceedings in a federal sector Title VII 
case are non-adversarial. See Office of Federal Equal Employment 
Opportunity, Discrimination Complaints Examiners Handbook 5 (1973). 
Regulations promulgated by the Civil Service Commission pursuant



24
to 42 U.S.C. § 2000e-16 (b) provide for extensive formal and
informal proceedings to resolve the grievance at the administra­

il/tive level. The employee's filing of an administrative com­
plaint sets into motion the entire investigative and hearing 
mechanisms, which cannot be terminated before the agency has 
responded to the charges of discrimination and produced all rele­
vant evidence within its possession. The EEO complaints examiner

17/ Under the Commission's regulations, a federal employee who 
believes that he has been the victim of unlawful discrimination 
must first communicate with an equal employment opportunity 
counselor in his own agency in an effort to ensure informal re­
solution. Thereafter he must receive a prompt and through in­
vestigation after the filing of a formal discrimination complaint 
if informal conciliation of his grievance cannot be achieved with­
in twenty-one days. 5 C.F.R. § 713.213-713.216. After the em­
ployee has reviewed the complete investigatory file (which may 
contain statements under oath), the agency must again provide an 
opportunity for informal adjustment of the complaint and, if this 
is not successful, must advise the employee of his right to a 
formal hearing. 5 C.F.R. § 713.217.

An employee requesting a hearing is accorded the full panoply 
of procedural rights. 5 C.F.R. § 713.218. At the conclusion of 
the hearing, the examiner -- usually an employee of a different 
agency -- prepares a complete file, which must consist of the 
report of the EEO counselor, the complaint, the investigative 
file, the record of the hearing, and the examiner's findings of 
fact, proposed decision, analysis and (where appropriate) recom­
mended remedy. 5 C.F.R. § 713.218 (g). This record is then 
transmitted to the head of the agency or his designee, whose 
decision -- required to be in writing -- must be based on the 
record and must be sent to the employee, together with a copy of 
the examiner's findings and the hearing record. 5 C.F.R. § 713.221. 
If the agency rejects or modifies the examiner's recommendation, a 
specific statement of reasons must be provided. If, on the other 
hand, the agency decides that discrimination has been proven, it 
may award such relief as retroactive promotion and back pay. 5 
C.F.R. § 713.271. Following final agency action, the employee 
must be notified of his right to file a civil action or to appeal
(Footnote continued on next page.)



25
is obliged to "evaluate the evidence contained in the investiga­
tive file and transcript of the hearing in light of the agency's 
responsibility under the Act . . . Office of Federal Equal
Employment Opportunity, Discrimination Complaints Examiners 
Handbook 56-57 (1973). The examiner must require the agency to 
produce evidence rebutting a finding of discrimination whenever 
it appears that there has been disparate treatment based on race, 
color, religion, sex, or national origin. If the agency cannot

tpersuade the examiner that it acted for a non-discriminatory 
reason, the examiner is required to find for the employee. Id. 
at 62.

While the regulations give an employee the right to be ac­
companied, represented, and counseled by a representative of his 
own choosing at every stage of the proceedings, 5 C.F.R. § 713.214 
(b), paid counsel is unnecessary at this time, since employees

17/ continued;
to the Civil Service Commission (and then, if unsuccessful, to 
file a civil action). 5 C.F.R. § 713.281. Appeals are considered 
by the Appeals Review Board of the Civil Service Commission, which, 
after reviewing the complaint file and all other relevant written 
representations made to it, must issue a written decision that may 
affirm or reverse the agency, remand to the agency for further in­
vestigation or fact-finding or for a rehearing, or order additional 
investigation to be conducted by Commission personnel. 5 C.F.R.
§ 713.234.



2 6

often have available the services of an attorney without charge. 
Civil Service Commission regulations expressly state that lawyers 
in the employee's agency may be allowed a reasonable amount of 
time away from their official responsibilities for the purpose 
of representing an aggrieved employee without fee, 5 C.F.R.
§ 713.214 (b), and certain agencies, such as the Department of 
Justice, operate an EEO Volunteer Representatives Program to 
assist Department employees in administrative proceedings. The 
Attorney General, moreover, has authorized Justice Department 
attorneys to represent employees in other federal agencies with­
out compensation. The District of Columbia Bar Association, 
which serves the area of greatest concentration of government 
workers, also operates an Employment Discrimination Complaint 
Service, which refers federal employees to private and govern­
mental lawyers who have agreed to provide free legal representa­
tion in discrimination cases.

The payment of attorneys' fees, we submit, is only a discre­
tionary fringe benefit, and the absence of such a payment does 
not amount to a substantive or procedural defect in the adminis­
trative fact-finding process. It does not prevent the equitable 
resolution of an employee grievance, nor does it render the 
administrative proceedings unfair. See Alyeska Pipeline Service 
Co. v. Wilderness Society, supra, 421 U.S. at 270 n.46; Runyon v. 
McCrary, supra, (attorneys' fees not awardable in civil rights



27

actions brought under the Civil Rights Act of 1866). While an 
award of attorneys' fees to a successful complainant in an ex­
pensive and time-consuming judicial proceeding may well be reason­
able, Congress has simply not reached the same conclusion with 
respect to administrative proceedings in which, as under the 
Commission's procedures, both the prehearing investigator (5 
C.F.R. § 713.216 (a)) and the complaints examiner (5 C.F.R.
§ 713.218 (c)(2)) are under an independent obligation to develop 
the facts. These proceedings are designed to be an inexpensive, 
but effective, means of vindicating the rights of those who have 
been subjected to discrimination and have suffered as a result. 
They were not designed to be full-scale adversary contests in 
which the agency is necessarily locked into a position contrary 
to that advanced by the complainant. Indeed, were that the case, 
we submit that, given the inherent cost and complexity of such 
defenses even at the administrative level, the agencies involved 
might become a great deal more reluctant to settle close questions, 
or to resolve them in favor of the complainant, if the necessary 
result were to be a bill for professional services at a figure 
perhaps for greater than the amount involved in the initial claim. 
Additionally, since complainants now clearly have a right to trial 
de novo in the District Court, Chandler v. Roudebush, supra, they 
are no longer tied to a judicial decision based upon the four 
corners of the administrative record. Thus, we submit, it is not



28
nearly so crucial as it might once have been to have the com­
plainant's cause presented by an attorney early in the administra­
tive process; any initial miscalculations or substantive mistakes
can be readily cured in the de novo civil action in the District

18/
Court.

In sum, we think that a balance must be struck between the 
relatively inexpensive and flexible administrative process, which 
Congress intended to be the initial means of handling all com­
plaints, and the more formal and costly judicial proceedings, in 
which the need for an attorney in presenting the plaintiff's case 
de novo is obviously crucial -- and compensation for him is 
authorized by statute. The importance of the statutory policy to 
eliminate employment discrimination in federal employment is not 
alone sufficient to support an award of attorneys' fees for services 
at the administrative level. As the Supreme Court stated in Alyeska 
Pipeline Service Co. v. Wilderness Society, supra, 421 U.S. at 264:

18/ Despite the language of 42 U.S.C. § 2000e-5 (k), allowing 
attorneys fees to the prevailing party "other than the Commission 
or the United States," this Court has hinted that in an appropriate 
case it might indeed support the taxing of attorneys' fees against 
an unsuccessful plaintiff suing the federal government under 42 
U.S.C. § 2000e-16. See Grubbs v. Butz, D.C. Cir. No. 73-1955, 
decided July 26, 1976, slip op. at 7 n.15. Even if that were done, 
however, we submit that the taxing of attorneys' fees against either 
party in the administrative context would have a great chilling 
effect upon employees who might otherwise be inclined to pursue a 
complaint administratively. In view of Grubbs, we cannot see how 
such fees could be taxed against the government without causing 
employees to run the same risk.



29

[I]f any statutory policy is deemed so important 
that its enforcement must be encouraged by at­
torney's fees, how could a court deny attorney's 
fees to private litigants in actions under 42 
U.S.C. § 1983 seeking to vindicate constitutional 
rights ?

Yet such fees cannot be awarded in section 1983 cases absent 
clear statutory authorization. Runyon v. McCrary, supra. Nor 
can they be awarded in Title VII cases absent more explicit 
statutory language, regardless of the importance of the rights
to be vindicated.



30

II. Neither the Civil Service Commission nor
the employing agency possesses the plenary 
power to award attorneys' fees as part of 
the process of adjudicating discrimination 
complaints and making aggrieved employees 
whole.____________________________________

Appellant argues that 42 U.S.C. § 2000e-16 (b) is a Con­
gressional grant of plenary power to the agency to award at­
torneys' fees as one of its "appropriate remedies." See 42 U.S.C. 
§ 2000e-16 (b). Again, the grounding of the award of attorneys' 
fees in such general language simply flies in the face of Con­
gress' intent, the concept of sovereign immunity, and the rule 
which requires each party to bear the cost of his attorneys' fees 
absent explicit statutory language to the contrary.

As we noted in Argument I, supra, the United States is im­
mune from the imposition of costs and attorneys' fees, and its 
sovereign immunity can be waived only by a statute which un­
equivocally consents to the assessment of costs and fees. The 
Supreme Court's decisions in United States v. Testan, supra, and 
United States v. Thayer-West Point Hotel Co., 329 U.S. 585 (1947), 
demonstrate that the term "appropriate remedies" used in section 
2000e-16 (b) cannot be regarded as the clear and explicit waiver 
which is required before costs and attorneys' fees can be imposed

i

upon the United States. In fact, the very malleability of that 
phrase argues to the contrary. In support of his argument, ap-



31

pellant points to the legislative history of section 16 (b), 
which never once uses the words "attorneys' fees" in conjunction 
with a discussion of the plenary powers of the Civil Service Com­
mission or any other Government agencies, and on cases which in

19/
our view are simply inapposite. But for the strong presumption 
running against the award of attorneys' fees, a presumption 
grounded in sovereign immunity, appellant's argument might well 
be acceptable. However, i£ is that "but for" which is dispositive 
of appellant's entire argument. Because of it, appellant has the 
burden of demonstrating a clear and unequivocal grant of authority 
to grant attorney's fees, not just some more generalized duty to 
make an aggrieved claimant whole. He has not so demonstrated and, 
we submit, cannot do so.

The Supreme Court, when faced with similar demands for at­
torneys' fees or costs on the basis of similarly general statutory 
language, has declined to find clear and unequivocal authoriza­
tions. For example, in United States v. Thayer-West Point Hotel
19/ One of the cases upon which appellant relies is Hall v. 
Cole, 412 U.S. 1 (1973), in which the Supreme Court approved the 
award of attorneys' fees to a union member under a theory of 
fee-shifting. The ctucial distinction between Hall and the 
instant case, however, is that Hall involved private litigants 
and not the federal government. The Court was not faced in Hall 
with the doctrine of sovereign immunity and the clear provisions 
of 28 U.S.C. § 2412. See Alyeska Pipeline Service Co. v. 
Wilderness Society, supra.



32

Co., supra, the argument was made that a statutory provision for 
"just compensation" should be construed to permit the award of 
interest against the United States . The Supreme Court rejected 
that argument, holding that the term "just compensation" was not 
sufficiently unequivocal and specific to waive the Government's 
immunity and create a right against it. 329 U.S. at 590. In 
Runyon v. McCrary, supra, the Supreme Court rejected a contention 
that 42 U.S.C. § 1988, which allows a District Court in appropri­
ate circumstances to utilize "suitable remedies" under state or 
common law in civil rights cases brought pursuant to 42 U.S.C.
§ 1981, authorized an award of attorneys' fees to a prevailing 
party. Again the court ruled that the use of such generalized 
language as that found in section 1988 did not demonstrate that 
Congress intended to depart from the long-established rule.
Plainly, if such terms as "just compensation" and "suitable reme­
dies" do not signal an unequivocal intent to depart from the rule 
which carries with it a presumption against the award of attorneys'
fees and similar costs, the term "appropriate remedies" does not

2 0 /
do so either.
20/ Appellant is entirely incorrect in asserting that the proper 
principle of statutory construction is that remedial statutes are 
to be broadly construed. To the contrary, a statute will be con­
sidered to constitute a waiver of sovereign immunity only when 
that waiver is clearly expressed. See Van Winkle v. MeLucas,
537 F.2d 246 (6th Cir. 1976).



33

Turning to the legislative history of 42 U.S.C. § 2000e-16, 
which we discussed in greater detail in Argument I, supra, we 
submit that if Congress had intended in its broadest expectations 
to have the words "appropriate remedies" encompass the award of 
attorneys' fees, surely some member of Congress at some point in 
the discussion would have used the words "attorneys' fees." None 
did. The only language which appellant is able to cull from the 
hearings, reports, and debates concerning 42 U.S.C. § 2000e-16, 
the 1972 amendments to Title VII of the Civil Rights Act of 1964, 
includes such phrases as "full relief to aggrieved employees, or 
applicants, including back pay and immediate advancement" (Appel­
lant's Brief at 48), "whatever remedies or actions by Federal 
agencies are needed to ensure equal employment opportunity" (Ap­
pellant's Brief at 50), and "[a]ny remedy needed to fully recom­
pense the employee for his loss, both financial and professional" 
(Appellant's Brief at 50). These statements simply do not signal 
any departure from the settled rule that an aggrieved party has 
been made whole when he is compensated for the primary loss suf­
fered, even though he does not recover costs and attorneys' fees. 
This is especially true when one recalls that Senator Gambrill's 
attempt to amend the 1972 bill to include the award of attorneys' 
fees at the administrative level was deleted by the very same



34

conference committee which issued the report from which appellant
extracted some of the language upon which he now relies. S. Rep.

2 1 /
No. 92-681, 92d Cong. 2d Sess. 19 (1972). Contrary to the notion 
of the District Court in Fitzgerald v. United States Civil Service 
Comm'n, 407 F. Supp. 380 (D.D.C. 1975), appeal pending, D.C. Cir. 
No. 76-1144, that members of Congress must have intended attorneys' 
fees to be awarded because they must have known that legal repre- 
sentation costs money, we submit that had Congress so intended, 
it would have said so unequivocally.

Nor does Hackley v. Roudebush, supra, 171 U.S. App. D.C. at 
408 n .130, 520 F.2d at 140 n.130, offer any support for appellant's 
position, as he contends. In Hackley the Court stressed the im­
portance of counsel to the prosecution of a discrimination com­
plaint in the administrative context. But the court used that 
observation to support its holding in favor of a de novo trial 
in the District Court, recognizing at least implicitly, that fees 
could not be paid for legal services rendered at the administrative 

level:
21/ Two other passages upon which appellant relies (Appellant's 
Brief at 48, 50) are found in the Senate Report. The original 
Senate bill, as we have noted, contained a specific provision 
for the payment of attorneys' fees. However, since that provision 
was subsequently deleted, we fail to see how appellant can con­
tinue to rely upon the language in the report.



35

Moreover, the record is molded without consider­
ing the needs of a court and the proper legal 
standards and data for assessing and demonstrat­
ing the existence of discrimination. And although 
nothing precludes a complainant from selecting an 
attorney as his representative during agency pro­
ceedings, Congress was cognizant of the fact that 
Federal employees often needed counsel in these 
complicated areas, but seldom could afford such 
expenses. [Citation omitted.] It therefore pro­
vided for discretionary appointment of counsel 
once a Title VII case reaches a court. See 171 
U.S. App. D.C. pp. 386-387, 520 F.2d pp. 118- 
119 supra. Thus, it may be particularly oppres­
sive to bind legally unsophisticated employees 
to complex and difficult choices made without 
adequate assistance at the agency level; indeed, 
the fact that the complaints examiner and EEO 
counselors need have no legal training exacer­
bates these problems since they are not therefore 
sensitive to the problem of preventing an unin­
tentional or uninformed waiver of rights by com­
plainants. Of course, the agency representative 
(whose primary loyalty is to the agency) will 
more than likely be an attorney, thereby aggra­
vating the differential between the resources 
of the agency and those of the complainant. Id. 
at 408 n.130, 520 F.2d at 140 n.130 (emphasis 
added).

Thus appellant's contention that the Library of Congress 
itself possesses the plenary power to grant attorneys' fees is 
without merit. It is supportedneither by a reasonable reading 
of the statute nor by the legislative history or judicial de­
cisions .



36

III. The fact that appellant filed a protective
complaint in the District Court prior to the 
Library's undertaking a full investigation 
and hearing did not elevate appellant to the 
status of a "prevailing party" in the District 
Court so as to entitle him to attorneys1 fees.

Appellant argues that the peculiar circumstances of this in­
stant case entitle him to recover attorneys' fees. He reasons 
that, because his administrative complaint had been dismissed 
initially, and because the Library set aside its initial decision 
and invited appellant to pursue his administrative complaint only 
after appellant had filed his complaint in the District Court, he 
is entitled to attorneys' fees, even if this Court should agree 
with our other arguments.

Appellant relies almost entirely upon what he refers to as 
the "catalyst" rule first mentioned in Parham v. Southwestern 
Bell Telephone Co., 433 F.2d 421 (8th Cir. 1970), and followed by 
this Court in Evans v. Sheraton-Park Hotel, 164 U.S. App. D.C. 86, 
98, 503 F .2d 177, 189 (1974). That theory of recovery, however, 
is simply inapposite to the case at bar, a public sector case in 
which a single plaintiff is suing an agency of the United States 
Government and in which that plaintiff never became, as in Parham, 
a "prevailing party" in the District Court. In Parham the plain­
tiff, suing on behalf of himself and a class, demonstrated in a 
full trial to the appellate court's satisfaction that a private



37
sector employer had indeed engaged in discriminatory practices 
against blacks as a class, but not against the plaintiff himself. 
Although the Eighth Circuit declined to direct an award of in­
junctive relief even to the members of the class in view of 
changed company policies, it did direct the payment of attorneys' 
fees to the plaintiff even though he had lost his individual 
cause of action.

The issue presented in Parham was far different from that in 
the case at bar. In that case the plaintiff had succeeded in 
proving class discrimination in the District Court, albeit not 
against him personally. Having done so, he could properly be 
considered by the court to be a prevailing party within the mean­
ing of 42 U.S.C. § 2000e-5 (k). In abbreviated language, the 
court referred to the plaintiff's lawsuit as a "catalyst" leading 
to the class suit and the change in company policy. We submit 
that such language merely describes the reasoning behind the 
court's exercise of discretion in awarding the plaintiff attorneys' 
fees, and does not relate to the threshold inquiry -- whether in­
deed the plaintiff had been a prevailing party in the District 
Court -- since that was beyond any real dispute. In other words, 
wo read the decision in Parham as permitting the District Court 
to consider the plaintiff's role in effecting a change in employ­
ment policy as one of the variables to be pondered in a court's 
exercise of its statutory power to grant attorneys' fees to



38

''prevailing parties." We do not read Parham, however, as stand­
ing for the proposition that a court may consider this factor in 
deciding whether a party has "prevailed" in the District Court 
in the first instance. Clearly, there was no real issue in Parham 
as to this latter question, since Parham had in fact prevailed in 
the class aspects of his suit. See Evans v. Sheraton-Park Hotel, 
supra, 164 U.S. App. D.C. at 97, 503 F.2d at 188.

Relying upon the Parham case, this Court reached a similar 
conclusion in Evans v. Sheraton-Park Hotel, supra. In reviewing 
the reasonableness of the attorneys' fees granted by the District 
Court, the Court cited the catalytic effect of the lawsuit as one 
of a number of factors which the District Court might consider in 
setting "reasonable" attorneys' fees. 164 U.S. App. D.C. at 98, 
503 F .2d at 189. In Evans, as in Parham, the Court did not dis­
cuss whether the plaintiff had actually prevailed, since his

2 2 /
status as a "prevailing party" was not questioned.

Moreover, neither Evans nor Parham considered the relation­
ship between the administrative and the judicial proceedings. In 
neither case was the award of attorneys' fees predicated on 
actions taken by the administrative agency charged with the 
responsibility for policing discrimination in the private sector, 
the Equal Employment Opportunity Commission. Nor did either the 
Evans court or the Parham court need to confront, in these private 
sector cases, the greatest impediments to the award of attorneys'
22~/ (Footnote on next page. )



39

fees in suits against the federal government, viz., the doctrine 
of sovereign immunity and the express provisions of 28 U.S.C.
§ 1920. See United States v. Testan, supra; Alyeska Pipeline 
Service Co. v. Wilderness Society, supra. While the Court might 
be inclined to read section 2000e-5 (k) liberally in a private 
sector case notwithstanding the rule which militates against the 
award of attorneys' fees to the prevailing parties, we submit 
that the court may not do so in the public sector in derogation 
of the doctrine of sovereign immunity. Taylor v. Safeway Stores. 
Inc., 524 F.2d 263 (10th Cir. 1975).

However, even assuming arguendo that appellant might be con­
sidered the prevailing party if he could convince the District 
Court that the sole cause for his success in subsequent adminis­
trative proceedings was the filing of his action in District Court, 
he has not done so in this case. The District Court never really 
focused upon the causal relationship between the filing of the 
civil action and the reconsideration of appellant's administrative 
complaint beyond noticing the coincidence that the latter followed 
soon after the former. Indeed, we submit that the language of the 
District Court memorandum and order of April 7, 1976, which noted

117 The actual amount of attorneys' fees awarded should not be 
disturbed on appeal absent a clear abuse of discretion by the 
trial court. Weeks v. Southern Bell Telephone & Teleeranh Co 
467 F.2d 95 (5th Cir. 197^)7 — ----"



- 40

that appellee vacated his previous dismissal of appellant's 
administrative complaint "as a result of the law suit" merely 
reflects a vague notion that the reconsideration of appellant's 
administrative complaint and the filing of the suit in the 
District Court were somehow related. But that is not to say 
that the court implicitly found, in using such language, that 
the review of the initial action taken upon appellant's adminis­
trative complaint by General Counsel's office of the Library of 
Congress would not have occurred but for the filing of the suit 
in the District Court. In fact, the District Court's decision 
not to award attorneys' fees was predicated upon a different 
ground altogether -- its view that a party must prevail in the 
District Court itself in order to be eligible for an award of 
attorneys' fees. Since no actual evidence was ever adduced on 
the issue of causality, and since the District Court's inquiries 
were directed to an entirely different theory of recovery, we 
submit that, even under some form of the so-called "catalyst" 
rule, appellant would be entitled at most to a remand of the 
record to the District Court with instructions to conduct a hear­
ing on the causal relationship, if any, between the two events.

Contrary to appellant's interpretation, we submit that a 
fair reading of the record supports the view that reconsideration 
of appellant's administrative complaint was occasioned not by

23/"resist and withdraw" tactics aimed at confounding appellant,
23/ See Parham v. Southwestern Bell Telephone Co., supra, 433 F.2d 
at 426.



- 41

but rather by a good faith review of the case by the General 
Counsel's Office. If indeed appellant had suspected an absence 
of good-faith dealing by appellee when he filed his complaint in 
the District Court, he would surely have continued to seek ju­
dicial redress and would not have entered into a stipulation 
which returned the dispute to the administrative forum. When he 
voluntarily reentered the administrative arena, he demonstrated 
his acceptance of the integrity of the administrative process in 
dealing with his grievance. He should not now be heard to argue 
that the simple filing of a three-page complaint in the District 
Court and his entry into a stipulation staying all proceedings
in the District Court several weeks later without any prompting

24/
by the District Court, either actively or passively, compel 
the award of attorneys' fees. To permit a recovery under these 
circumstances would simply encourage plaintiffs who have discrim­
ination suits pending at the administrative level to file suit in 
the District Court at the earliest possible moment solely to 
entitle them to an award of attorneys' fees, and with no view to­
ward proceeding forthwith in the judicial forum to the exclusion 
of the administrative one. Such a turn of events not only would 
b-3 destructive of the administrative process, but would also impose 
a great burden upon the courts and the federal agencies involved.

24/ See Mello v. Secretary of Health, Education, and Welfare. 
supra; cf. Williams v. General Foods Corp., supra.



- 42

CONCLUSION

WHEREFORE, appellees respectfully submit that the judgment 
of the District Court should be affirmed.

EARL J. SILBERT,
United States Attorney.

JOHN A. TERRY,
JOSEPH GUERRIERI, JR.,
RICHARD A. GRAHAM,
Assistant United States Attorneys.

D O J - 1977-03