Bryan v Koch Brief for Plaintiffs-Appellants

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT 
No. 77-1697

ANNA J. BACKMAN,
Appellee,

vs .
W. GRAHAM CLAYTOR, JR.,

Appellant.

On Appeal From The United States District Court 
For The Western District Of Washington

BRIEF FOR THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC., AS AMICUS CURIAE

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
MELVYN R. LEVENTHAL 
BILL LANN LEE 

Suite 2030 
10 Columbus Circle 
New York, N. Y. 10019

LOWELL JOHNSTON 
12 Geary Street 
San Francisco, California

94108
Attorneys for the NAACP Legal 
Defense and Educational Fund, 
Inc, as Amicus curiae



INDEX

Page
Interest of Amicus ................................  1

» ARGUMENT ...........................................  3
Summary of Argument.....................  3
Introduction ............................  5

1. The Lower Court's Decision Should Be 
Affirmed In Light Of The Recent 
Decisions Of The D.C. And Fourth
Circuit .................................  11
A. Plaintiff Backman Was "Prevailing

Party" In Judicial Proceedings ..... 12
B. Plaintiff Backman Was "Prevailing

Party" In Administrative-Judicial 
Proceedings ......................... 21

II. Assuming Arguendo That The Suit Was 
Filed For Attorneys Fees Denied In 
Administrative Proceedings Alone, The 
D.C. And Fourth Circuit Decisions Still 
Control ..................................  25

III. The Availability Of Attorney's Fees For 
Prevailing Complainants Is A Practical 
Necessity In Federal Title VII
Administrative Proceedings .............  31

CONCLUSION ......................................... 39

-  x  -



TABLE OF AUTHORITIES
Cases: Page
Albermarle Paper Co. v. Moody, 422 U.S. 405

(1975) ...............................................  2, 30, 33
Alexander v. Gardner-Denver Co., 415 U.S. 36

(1974) ...............................................  7
Allen v. Veterans Administration, 542 F.2d 176

(3rd Cir. 1976) .....................................  6
Alyeska Pipeline Service Co. v. Wilderness Society,

421 U.S. 240 (1975) ..................................  9
Barrett v. U.S. Civil Service Commission, 69

F.R.D. 544 (D.D.C. 1975) .............................  3, 6, 36
Bell v. Schlesinger, _____ F.2d _____  (D.C. Cir.

1977) ................................................  15
Blackmon v. McLucas, 13 EPD 511,451 (D.D.C. 1976) . 6
Brown v. General Services Administration, 425

U.S. 820 (1976) ...............................    5, 10, 15,
22, 31

Chandler v. Roudebush, 425 U.S. 840 (1976),
reversing. 515 F.2d 251 (9th Cir. 1975) .... . 3, 6, 22, 24,

25, 28
Coles v. Penny, 531 F.2d 609 (D.C. Cir. 1976) ....  6
Culpepper v. Reynolds Metal Co., 421 F.2d 888 (5th

Cir. 1971) ........................................... 10
Day v. Mathews, 530 F.2d 1083 (D.C. Cir. 1976) ... 6, 25
Eastland v. Tennessee Valley Authority, 553 F.2d

364 (5th Cir. 1977) .................................  6
Ellis v. Naval Air Rework Facility, 404 F. Supp.

377 (N.D. Cal. 1976) ................................  3
Evans v. Sheraton Park Hotel, 503 F.2d 177 (D.C.

Cir. 1974) ............................       19

- ii -



Page
Fitzgerald v_ U.S. Civil Service Commission, _____  29 30

F .2d _____  (D.C. Cir. 1977) ....................
Foster v. Boorstin, _____  F.2d _____  (D.C. Cir.

1977) ............................................  Passim
Franks v. Bowman Transportation Co., 424 U.S. 747

(1976) ...........................................  2, 30
Garner v. E.I. Dupont, 538 F.2d 611 (4th Cir.

1976) ............................................  6
Griggs v. Duke Power Co., 401 U.S. 424 (1971) ....  2
Grubbs v. Butz, 514 F.2d 1323 (D.C. Cir. 1975) .... 6
Hackley v. Roudebush, 520 F.2d 108 (D.C. Cir.

1975) ............................................  3, 22, 25,
28, 31

International Brotherhood of Teamsters v. United 
States, 45 U.S.L.W. 4506 (decided May 31,
1977) ............................................  30

Johnson v. Froehlke, 5 EPD 58,638 (D. Md. 1973) ... 6
Johnson v. Georgia Highway Express, Inc., 488 F.2d

714 (5th Cir. 1974) .............................  10
Johnson v. United States, 554 F.2d 632 (4th 

Cir. 1977), affirming. 12 EPD 5
(D. Md. 1976) ...................................  Passim

Koger v. Ball, 497 F.2d 702 (4th Cir. 1974) ......  5
Local 1401 v. N.L.R.B., 463 F.2d 316

(D.C. Cir. 1972) ..................... ..........  24
McMullen v. Warner, 12 EPD 511/107 (D.D.C. 1976) .. 23, 32
NAACP v. Button, 371 U.S. 415 (1963) .............. 2
NLRB v. Food Store Employees, 417 U.S. 1 (1974) ... 30
Parham v. Southwestern Bell Telephone Co., 433

F .2d 421 (8th Cir. 1970) ........................ 18, 19
Parker v. Califano, _____  F.2d _____  (D.C. Cir.

1977), affirming, 411 F. Supp. 1059 (D.D.C.
1976) ..................................... ...... Passim

- iii -



Page

Parks v. Dunlop, 517 F.2d 785 (5th Cir. 1975) ....  6
Phillips v. Martin Marietta corp., 400 U.S. 542

(1971) ...........................................  2
Place v. Weinberger, 426 U-S. 932 (1976), vacating- 

and remanding in light of confession of error,
497 F .2d 412 (6th Cir. 1974) ................... 5

Reyes v. Mathews, 13 EPD 511,365 (D.D.C. 1976) ___  22, 23
Richardson v. Wiley, 13 EPD 511,349 (D.D.C. 1976) . 18
Runyan v. McCrary, 427 U.S. 160 (1976) ............ 9
Smith v. Kleindienst, 527 F.2d 853 (D.C. Cir. 1975)

(unpublished opinion), affirming, 8 FEP Cases
752 (D.D.C. 1974) ...............................  11

Swain v. Hoffman, 547 F.2d 921 (5th Cir. 1977) ___  3
Turner v. Federal Communications Commission, 514

F .2d 1354 (D.C. Cir. 1975) .....................  29, 30
Williams v. Saxbe, 12 EPD 511,083 (D.D.C. 1976) ... 24, 25
Williams v. Tennessee Valley Authority, 552 F.2d

691 (6th Cir. 1977) .......................... 6

Statutes;
29 U.S.C. §160 (c) ...... ...........................  30
42 U.S.C. §1985 ....................................  9
42 U.S.C. §1988 ................... ................. 9, 19
42 U.S.C. §2000e-5 (h) .............................. 4, 11, 12,

19, 20, 21,

42 U.S.C. § 2000e-16 ...............................  1, 2
42 U.S.C. §2000e-16 (b) ............................ 5, 27, 29
42 U.S.C. § 2000e-16(c) ...........................  15, 24

- iv



Page
42 U.S.C. § 2000e-16 (d) ............................  27

Rules and Regulations:
Rule 29, Fed. R. App. Pro...........................  1
Rule 23, Fed. R. Civ. Pro...........................  36
Rule 23 (a) (4), Fed. R. Civ. Pro.................... 38
Rule 801 (d) (2), Fed. R. Evid......................  24
5 C.F.R. Part 713 .................. ...............  17
5 C.F.R. §§713.214 (a), 713.215. 713.218 (c)(2),

713.221 (b)(1) ..................................  35
5 C.F.R. § 713.220 (d) .............................  17, 18
5 C.F.R. §713.235 ..................................  17
5 C.F.R. §§713.601-713.643, published in, 42 Fed.

Reg. 11807 (March 1, 1977) .......................  36
5 C.F.R. § 713.603(g) ..............................  37
5 C.F.R. § 713.604 (b) (iv) ......................... 38
§5 C.F.R. § 713.608 (b)(1) ..........    37

Other Authorities:
Discrimination Complaints Examiners Handbook

(1973) ......................    33
Federal Personnel Manual Bulletin No. 713.41

(October 10, 1975) ..............................  36
Federal Personnel Manual Letter 713-38 (May 31,

1977)   38
In re Brown, Appeals Review Board Decision

(November 8, 1974) ............................... 35

v



Page
Letter from Acting Assistant Attorney General 

Irving Jaffe. to Senator Tunney, dated May 6,
1975, reprinted in, 2 CCH Employment Practices 
Guide,. H e w  Developments 5532 7 and, 
excerpted in, BNA Daily Labor Report,
Current Develpments Section for May 13, 1975 ... 10

Moore's Fed. Pract., Rules Pamphlet, Pt. 2 at
818-21 ..........................................  24

H.R. Rep. No. 94-1558, 94th Cong. 2nd Sess.,
H.R. Comm, on the Judiciary (1976) .............  19

Subcom. on Equal Opportunities of the H.R. Com. on 
Education and Labor, Staff Report On Oversight 
Investigation Of Federal Enforcement of Equal 
Employment Opportunity Laws, 9th Cong., 2nd 
Sess. (1976) ..................... ....... .......  32

- vi -



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT 
NO. 77-1697

ANNA J. BACKMAN,
Appellee,

vs.
W. GRAHAM CLAYTOR, JR.,

Appellant.

On Appeal From The United States District Court 
For The Western District Of Washington

BRIEF FOR THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC., AS AMICUS CURIAE

Interest of Amicus*
The NAACP Legal Defense and Educational Fund, Inc. 

files the instant brief amicus curiae in support of the 
lower court's ruling that in this employment discrimination 
brought pursuant to § 717 of Title VII of the Civil Rights 
Act of 1964, as amended, 42 U.S.C. § 2000e-16, plaintiff 
Anna J. Bachman is entitled, as the prevailing party, to

♦Letters of the parties consenting to the filing of this 
brief amicus curiae have been filed with the Clerk pursuant 
to Rule 29, Fed. R. App. Pro.



recover reasonable attorney's fees for legal representation
in administrative and judicial proceedings, as provided by
statute. Amicus submits that the court should affirm the lower
court s decision in light of the recent decisions of the
D. C. Circuit in Parker v. califano. ___ F.2d ___  (decided
June 30, 1977), affirming. 411 F. Supp. 1059 (D.D.C. 1976);
Foster v. Boorstin. ___ F.2d ___  (decided June 30, 1977), and
of the Fourth Circuit in Johnson v. United States. 554 F.2d 633
(decided May 4, 1977), affirming. 12 EPD 5 ll,039 (D.Md. 1976).

The Fund is a non-profit organization, certified in
New York and California, that has provided legal assistance
to black persons seeking vindication of their civil rights

1/since 1939. Since the passage of Title VII of the Civil 
Rights Act of 1964, 42 U.S.C. § 2000e et sea., the Fund has
represented numerous black and women employees prosecuting

2/
actions under Title VII; with the extension of the guarantees 
and protections of Title VII to federal employees in 1972,
42 U.S.C. § 2000e-16, the Fund has undertaken representation 
of federal employees in over thirty administrative and judicial 
proceedings against various federal agencies throughout the

1/ See NAACP v. Button. 371 u. s . 415, 421 n.5 (1963).
2/ See, e.g.. Phillips v. Martin Marietta Corp.. 400 u.S. 
542 (1971), Griggs v. Duke Power Co.. 401 u.S. 424 (1971); 
Albemarle Paper Co. v. Moody. 422 U.S. 405 (1975); Franks v. 
Bowman Transportation Co.. 424 U.S. 747 (1976).

2



3/
nation. The Fund also has participated as amicus curiae 
in significant federal Title VII cases in which, as here,

4/the interest of its clients are affected. Lastly, lawyers 
associated with the Fund have been counsel in several of the 
recent D. C. and Fourth Circuit cases which affirm the right 
of federal employees to recover fees in both administra­
tive and judicial proceedings. Amicus submits this brief in 
the hope that its experience will assist the Court in deciding 
the appeal and in providing guidance to the lower courts.

ARGUMENT
Summary of Argument

Because amicus believes that the objections raised by 
the government to the district court's decision are more than 
adequately rebutted by the decisions of the D.C. and Fourth 
Circuits and appellee's brief, we limit this brief largely to three 
specific points in support of affirmance. First, the administra­
tive and judicial proceedings were part and parcel of the same 
litigation for which an attorney's fee was awarded, as was the 
case in the D.C. and Fourth Circuit cases. The government is 
completely mistaken that "[i]t is . . . impossible in the

3/ See, e.g., Swain v. Hoffman. 547 F.2d 921 (5th Cir. 1977); 
Barrett v. U. S. Civil Service Commission. 69 F.R.D. 544 (D.D.C. 
1975) ; Ellis v. Naval Air Rework Facility, 404 F. Supp. 391 
(N.D. Cal. 1976).
4/ See, e.g., Chandler v. Roudebush, 425 U.S. 840 (1976); 
Hackley v. Roudebush, 520 F.2d 108 (1975).

3



present case to find that the bringing of suit in the
district court had any causative effect on plaintiff's

1/obtaining reinstatement and back pay." The appeal falls
directly under authoritative precedent construing, 42 U.S.C.
§ 2 000e-5(k), viz. , Parker v. Califano, Foster v. Boorstin, 
Johnson v. United States, all supra, and preceding district 
court decisions, infra. The government's effort to factually 
or legally distinguish this line of authority is erroneous.
This Court need go no further than to affirm in light of these 
cases. Second, assuming arguendo that the appeal is not 
directly controlled by the holding of the D.C. and Fourth 
Circuit cases because the administrative and judicial proceedings 
were "separate," the provision for fees in "any action or 
proceeding under [Title VII]" in 42 U.S.C. § 2 000e-5(k), and 
the principles established in those cases, nevertheless, 
require affirmance. The government is on a very slippery slope 
indeed in contending that § 2000e-5(k) and Parker, Foster and 
Johnson apply not at all in a federal Title VII action for 
the reason that plaintiff prevailed in administrative rather 
than judicial proceedings when the whole thrust of the 
decisions is that there is no distinction between administrative 
and judicial proceedings under § 2000e-5(k). The district 
court also has authority to redress the failure of the

5 /  Brief for Appellant at 14.

4



administrative agency to permit recovery under 42 U.S.C.
§ 2000e-16(b). Third, it is the experience of amicus 
that attorney's fees for administrative proceedings are a 
practical necessity for the enforcement of Title VII. "§ 717 
does not contemplate merely judicial relief. Rather, it 
provides for a careful blend of administrative and judicial 
enforcement powers," Brown v. General Services Administration.
425 U.S. 820, 833 (1976). To deprive Mrs. Backman and 
other federal employees of any opportunity to recover attorney's 
fees in administrative proceedings would prove detrimental to 
the integrity of such proceedings in which management, as here, 
is represented by a lawyer.

Introduction

Initially, however, we note that the government's
position in this case opposing attorney's fees in Title VII
administrative and judicial proceedings is but one of a variety
of technical objections defendant federal agencies have raised
in employment discrimination actions to limit the effectiveness
of Title VII's administrative-judicial enforcement scheme.
Thus, the government has attempted, inter alia, (a) to deny
an employee's right to remedy Title VII violations in cases
pending administratively or judicially at the time the Act became

6/effective, (b) to permit agencies to refuse to accept,

§ /  See, Kocrer v. Ball. 497 F.2d 702 (4th Cir. 1974) ; Place v. 
Kaiiihfirgfir, 426 u.S. 932 (1976), vacating_and remanding in light of 
confession of error. 497 F.2d 412 (6th Cir. 1974); Brown v. General Services Administration,. 425 U.S. 820, 824 n. 4 (1976).

5



2 /process and resolve classwide claims of discrimination; (c) to
permit agencies to refuse to accept, process and resolve com-

8/
plaints of continuing violations of Title VII; (d) to permit
agencies to impose an illegal burden of proof requirement in

9/
administrative proceedings; (e) to permit agencies to refuse
to give employees notice of right to sue following exhaustion

12/of administrative remedies; (f) to remand properly filed
11/actions for further administrative proceedings; (g) to limit

an employee to a review of the administrative record only
12/

rather than a trial de_ novo; (h) to deny the right to seek,...... 11/a preliminary injunction; and (i) to deny employees the right
14/

to maintain a class action. The question of attorney's

1 /  See Barrett v. U. S. Civil Service Commission. 69 F.R.D. 544 
(D.D.C. 1975).
8/ See Blackmon v. McLucas. 13 EPD 511,457(D.D.C. 1976);Johnson v. Froehlke, 5 EPD 5 8638 (D. Md. 1973).
9/ See Day v. Mathews . 530 F.2d 1083 (D.C. Cir. 1976).
19/ See Coles v. Penny. 531 F.2d 609 (D.C. Cir. 1976); Allen v. 
Veterans Administration. 542 F.2d 176 (3d Cir. 1976), see also 
Garner v. E. I. Dupont. 538 F.2d 611 (4th Cir. 1976), but see 
Eastland v. Tennessee Valley Authority. 553 F.2d 364 (5th cir. 1977).
11/ See Grubbs v. Butz. 514 F.2d 1323 (D.C. Cir. 1975).
12/ See chandler v. Roudebush. 425 U.S. 840 (1976), reversing, 
515 F .2d 251 (9th Cir. 1975).
13/ See parks v. Dunlop, 517 F.2d 785 (5th cir. 1975).
14/ See Eastland v. Tennessee Valley Authority, 553 F.2d 364 
(5th Cir. 1977); Williams v. Tennessee Valley Authority, 552 F.2d 
691 (6th Cir. 197TT

6



fees is no less significant than other issues the courts have 
resolved in favor of more vigorous Title VII anti-discrimination 
enforcement, guided by the principle that "congress . . .  con­
sidered the policy against discrimination to be of the 'highest 
priority,'" Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 
(1974),

To put the government's narrowly technical position 
further in perspective, we note what the government does not 
argue. First, the government concedes the nature and worth of 
the legal services by not disputing the district court's express 
factual finding that " [t]he sum of $2,375.00 is an appropriate 
award of attorney's fee to be made to plaintiff for the 
services . . .  on her behalf [principally] in the administrative 
proceedings" (R. 174). There is simply no question that 
the services provided by Mrs. Backman's counsel in 
administrative proceedings were of a legal character, and of 
substantial worth. The government could not do otherwise on 
this record since Mrs. Backman was successful as a result 
of a hard-fought two-day evidentiary hearing at which agency 
management's defense was handled by a Judge Advocate General 
Corps lawyer (R. 5). The hearing examiner's recommended 
decision is replete with references to testimony and exhibits 
submitted at the hearing, id. Second, neither below nor on 
appeal has the government contradicted in any way plaintiff's 
averment that "I would not have won back my job without

7



effective legal representation (R. 36), nor that of her 
counsel that "plaintiff would not have succeeded in obtaining a 
finding of discrimination at the administrative level without 
effective legal representation" (R. 39). The government, in 
short, concedes that but for legal representation in 
administrative proceedings, Mrs. Backman would have lost her 
case notwithstanding the merits. Third, the government on 
appeal no longer raises any issue as to the district court's 
exercise of discretion to award fees or the amount awarded 
other than its across-the-board contention that fees cannot in 
any event be conferred. The government's case stands or falls 
on their technical contention alone, i .p , the recovery 
of attorney's fees would be appropriate if its technical 
objections are put aside.

The government, therefore, makes no pretense that
its position is or can be rationalized as furthering the
practical enforcement of Title VII. Indeed, the government
proffers a frank confession and avoidance defense that only
serves to expose the poverty of its position. The government
contends that, " [wjhatever the desirability of awarding such
fees as a matter of policy, it is clear that the award of
attorney's fees for administrative work is not essential

15/
to the operation of Title VII." In support, two abstract

15/ Brief For Appellant at 27 n. 10.

8



arguments are made. First, Alyeska Pipeline Service Co. v .
Wilderness Society, 421 U.S. 240 (1975) and Runyan v. McGrary.
427 U.S. 160, 182-186 (1976) are cited for the proposition
that attorney's fees are unnecessary even in civil rights
judicial proceedings. The Alyeska decision, however, expressly
cites the civil Rights Act as an instance in which 'Congress has opted
to rely heavily on private enforcement so as to implement public
policy and to allow counsel fees so as to encourage private
litigation," 421 U.S. at 263. The citation of Runyan v. McGrary.
holding that attorney's fees cannot be recovered under 42 U.S.C.
§ 1988, also is anomalous because Congress immediately overruled
Runyan by enacting the Civil Rights Attorney's Fees Awards Act
of 1976, 42 U.S.C. § 1988, to extend Title VII's attorney's fee

16/
provision to other kinds of civil rights litigation. Second,
attorney's fees are said to be unnecessary because a judicial 
trial de_ novo would "cure" "any failure of plaintiff to obtain 
relief at the administrative level due to the lack of a 
lawyer," surely an instance of an argument that falls of its 
own weight. Moreover, "refusing to award attorneys’ fees 
for work at the administrative level would penalize the lawyer 
for his pre-trial effectiveness and his resultant conservation 
of judicial time," Parker v. califano, supra, slip opinion 
at 28-29 and authorities cited.

16/ The related contention that the administrative process does 
not require employees to be represented is discussed infra at 31 
part III of the argument.

9



Amicus respectfully submits that the government's
position completely ignores "the duty of the courts to make 
sure that the Act -works, and [that] the intent of congress is 
not hampered by a combination of a strict construction of the 
statute and a battle with semantics," Culpepper v. Reynolds 
Metal Co., 421 F.2d 888, 891 (5th Cir. 1970) (emphasis added). 
As the D. C. Circuit put it, "'This Court as part of its 
obligation 'to make sure that Title VII works' has liberally 
applied the attorney's fee provision of Title VII, recognizing 
the importance of private enforcement of civil rights legis­
lation, ' " Parker v. Califano, supra, slip opinion at 23, 
quoting, Johnson v. Georgia Highway Express, Inc., 488 F.2d 
714, 716 (5th Cir. 1974). Divestiture of plaintiff Backman's 
bona fide attorney's fees simply cannot be justified on 
enforcement grounds; the foreseeable consequence of the 
government's rule is obvious - to insure that Title VII's 
unitary "administrative and judicial enforcement 
system," Brown v. General Services Administration, supra,ITT425 U. S. at 829, does not work.

17/ The case arises because the Justice Department has re­
versed its prior policy of acquiescence to award of attorney's 
fees and costs in administrative proceedings under Title VII.
The prior policy is set forth in Acting Assistant Attorney 
General Irving Jaffe's response to a letter from Senator Tunney, 
Chairman of the Subcommittee on constitutional Rights, dated 
May 6, 1975, reprinted in 2 CCH Employment Practices Guide,
New Development ^[5327 and excerpted in BNA Daily Labor Report, 
Current Developments Section for May 13, 1975. Senator Tunney 
had inquired about the government's "position in opposing the

10



I.
THE LOWER COURT'S DECISION SHOULD BE AF­
FIRMED IN LIGHT OF THE RECENT DECISIONS 
OF THE D. C. AND FOURTH CIRCUIT________

The district court held that "an award of a reasonable 
attorneys' fee for services rendered in connection with 
administrative proceedings may properly be made to a 
successful claimant in a Title VII action or proceeding under 
42 U.S.C. § 2000e-5(k). The reasoning in Johnson v. U.S.A.
(D. Md. 1976) [12 EPD 511,039] is persuasive, regardless of
whether the claimant prevailed through administrative or 
judicial proceedings" (R. 142). The government contends 
that the district court erred because (a) Mrs. Backman is not

17/ (continued)
award of attorney's fees on the theory that such an award was 
not specifically provided for by the 1972 amendments to Title 
VII." Jaffe responded that:

"In response to the inquiry, I instituted a 
staff review of this position and having carefully 
considered and evaluated the results of that review,
1 have concluded that the position should be abandoned. 
The United States Attorneys will therefore be instructed 
not to assert that position in any case properly brought 
under the 1972 amendments and to withdraw the position 
from any such cases now pending. We shall, of course, 
continue to address ourselves to appropriate issues 
relating to the reasonableness of amounts so requested 
and to the court's discretion in making an award."
2 CCH Employment Practices Guide at p. 3611.

Consistent with this policy, the Justice Department did not 
oppose entitlement to the award of attorney's fees for legal 
services in the administrative process in Smith v. Klein- 
dienst, 527 F.2d 853 (D.C. Cir. 1975) (unpublished opinion), 
affirming. 8 FEP Cases 752 (D.D.C. 1974). In Smith, the 
Justice Department unsuccessfully contested only the amount of 
attorney's fees.

11



a "prevailing party" under the terns of 42 U.S.C. § 2000e-5(k),
and (b) even if the prevailing party, she cannot recover
fees for legal representation in administrative "proceedings"
under § 2 000e-5(k), Brief For Appellant at 11 et seg.
We believe that both contentions are wrong, and directly
controlled by the recent D. C. and Fourth Circuit decisions.
Because the Parker v. Califano opinion's discussion of statutory
language, purpose and legislative history is so comprehensive
on the second contention, amicus will not discuss it. Instead,
we focus on the "prevailing party" question.
A. Plaintiff Backman Was "Prevailing Party" In Judicial 

Proceedings.___________________________________________
The government contends that only a federal employee who

"prevails" in judicial proceedings can recover fees under
42 U.S.C. § 2000e-5(k), and that, as a factual matter, " [t]he
bringing of the suit . . . had no effect on plaintiff's
receipt of the reinstatement and back pay relief she sought
[,] . . . [t]he suit was therefore not a ’catalyst' to
plaintiff's receiving relief, and plaintiff is accordingly

18/not a 'prevailing party,' under 42 U.S.C. § 2000e-5(k)."
The district court, however, correctly rejected the govern­
ment's narrow factual contention that plaintiff did not

18/ Brief For Appellant at 15.

12



19/
prevail in the judicial proceedings, and correctly ruled 
that, in any event, fees were appropriate "regardless of 
whether the claimant prevailed through administrative or 
judicial proceedings" (R. 142). In this section, we discuss 
the narrow question and in part B the broader latter question.

While conceding that a prevailing party in a Title VII 
action need not obtain formal judicial relief, the government
attempts to show that it was clearly erroneous to find that

. . .  £2/plaintiff prevailed in the circumstances of this case.
The government's factual recital designed to show that " [t]he

21/suit was neither necessary nor in any fashion causative," 
is, at the very least, disingenuous. The basic facts are:
The Secretary of the Navy's decision was issued June 3, 1976 
in a letter to Mrs. Backman that states, inter alia, that 
"fb]y separate correspondence, the Commander, Puget Sound 
Naval Shipyard, has been requested to initiate action to 
accomplish [reinstatement and back pay] recommended by the 
Complaints Examiner and endorsed by this office" (R. 23). She 
also was informed that "[i]f you are dissatisfied with this 
decision," "you may file a civil action in an appropriate

19/ Compare, Defendant's Brief Re Summary Judgment (R. 65-67); 
Defendant's Reply Brief (r . 138-139), with, the Order Granting 
Plaintiff's Motion For Summary Judgment, and Denying Defendant's 
Motion For Summary Judgment (r . 142-143).
20/ Brief For Appellant at pp. 12-15.
21/ Brief For Appellant at p. 15.

13



U. S. District within 30 days of receipt of this decision," 
id. A copy of the Secretary's decision was received June 14th 
by Mrs. Backman's counsel (R. 22, 23). She herself did not 
hear from the Naval Shipyard until after June 25th when she 
received notice that:

II 1. Thxs letter forwards the decision of the 
Department of the Navy.

2. The Puget Sound Naval Shipyard has requested 
the Employee Appeal Board to reconsider its decision.
You will be notified further after we receive the 
Boards [sic] response."

(R. 102). Mrs. Backman did not hear from the Shipyard again, 
and so on July 13th, 29 days after receipt of the Secretary's 
decision by her counsel, this action was filed (r . 1). After 
filing, Mrs. Backman was reinstated and informally apprised 
that she would receive back pay; she received no word that 
attorney's fees for legal representation in the administrative 
process would be allowed (r . 33-34, 104). Mrs. Backman moved 
for summary judgment October 1st (R. 24), and the government 
countered with a summary judgment motion October 12th (r . 45). 
Plaintiff learned for the first time on October 12th that the 
Naval Shipyard's request for reconsideration had been denied 
in a decision dated July 12th (R. 48).

The government's self-serving version of the facts is 
inaccurate on several counts. First, in commencing the action, 
Mrs. Backman followed, to the letter, the express terms of 
the Secretary's decision letter " [i]f dissatisfied with this

- 14



decision," and c£ 42 U.S.C. § 2000e-16(c) which, in pertinent 
part, provides:

"Within thirty days of receipt of notice of final 
action taken by a department, agency or unit, . . . , 
an employee . . . , if aggrieved by the disposition 
of his complaint, or by the failure to take final 
action on his complaint, may file a civil action."
(emphasis added)

There can be no question of the action being "necessary," 
the action was necessary under the terms of the statute 
itself. Second, had Mrs. Backman not filed or waited even 
a few days longer, she would have imperiled her right to any 
judicial relief at all. The Supreme Court on June 6, 1976 had 
just decided that Title VII, with its jurisdictional pre­
requisites, was the exclusive judicial remedy for federal 
employees like Mrs. Backman, Brown v. General Services 
Administration, 425 U.S. 820 (1976). If she had delayed 
filing her action by more than one day, i.e., beyond 30 days 
of receipt by her counsel, the government would have sought
dismissal, see, e.g., Bell v. Schlesinger, ___  F.2d ___
(D. C. Cir. 1977) (reversal of lower court ruling that a 
Title VII action was untimely filed 32 days after "constructive" 
receipt by complainant's attorney). Thus, filing the action 
when she did was necessary to preserve her only judicial 
remedy. Third, if the action was unnecessary because, as 
the government contends, reinstatement and back pay would 
have been provided without the lawsuit, the Naval Shipyard

15



was a fault- It was the Shipyard that sought reconsideration
of the Secretary's decision even though " [t]his attempt was
doomed since it was untimely already under the regulations when 22/
it was made." It was the Shipyard that did not inform
Mrs. Backman immediately of the denial of reconsideration but
delayed three months into the lawsuit and then only in

2 3/
response to plaintiff's motion for summary judgment. it was
the Shipyard that kept Mrs. Backman in a state of suspense about

24/
her rights, and necessitated the legal proceedings. in short,
the Shipyard caused Mrs. Backman to be "aggrieved by the dis­
position of [her] complaint [and] by the failure to take 
final action on [her] complaint." Essentially the government's 
"necessity" defense boils down to penalizing plaintiff because 
the Naval Shipyard was out of time in requesting reconsideration, 
and because plaintiff should have known that the action was 
unnecessary although the Naval Shipyard kept the information

22/ Brief For Appellant at p. 14.
23/ Mrs. Backman did not even know the basis of the request 
for reconsideration until receiving it as an attachment to 
defendant's summary judgment papers. Nor did Mrs. Backman know 
the date of the request.

The Shipyard's letter to Mrs. Backman reinstating her 
retroactively is silent on the reconsideration or its denial, 
i.e«/ she was not told if her reinstatement was pending further 
administrative proceedings or in response to denial of recon­
sideration.
24/ "It was necessary for me to file my case in federal court 
before the 30-day time limit passed, simply to seek enforcement 
of the partial remedy proposed by the Secretary of the Navy"
(R. 33).

16



required to form such an opinion from her.
The government also renews its contention, previously 

rejected by the lower court, that the Naval Shipyard under 
U. S. Civil Service Commission regulations, 5 C.F.R. Part 713, 
had no other recourse after the denial of reconsideration but 
to reinstate Mrs. Backman and give her back pay. The point 
is misdirected since, under the regulations, the Shipyard 
theoretically could not even seek reconsideration pursuant 
to 5 C.F.R. § 713.220(d), but of course the Shipyard did in fact 
do so, supra. The point also is wrong; the July 12, 1976
denial of reconsideration by the Navy Employee Appeals Review 
Board was not the Shipyard's last recourse. 5 C.F.R. § 713.235 
plainly provides that the U. S. Civil Service commissioners 
"may, in their discretion, reopen and reconsider any previous 
decision when the party requesting reopening submits written 
argument or evidence." The full text of § 713.235, as set2y
forth in the margin, makes clear that this direct appeal

2_5/ "Sec. 713.235 Review by the Commissioners. —
The Commissioners may, in their discretion, reopen 
and reconsider any previous decision when the party 
requesting reopening submits written argument or 
evidence which tends to establish that:

(1) New and material evidence is available that 
was not readily available when the previous decision 
was issued;

(2) The previous decision involves an erroneous 
interpretation of law or regulations or a misappli­
cation of established policy; or

(3) The previous decision is of a precedential 
nature involving a new or unreviewed policy con-

17



to the Civil Service Commissioners, unlike reconsideration 
pursuant to § 713.220(d) requires no timely filing, and 
unlike appeal to the U. S. Civil Service Commissioners Appeals 
Review Board pursuant to § 713.235 was open to any "party," 
not just the complainant. Section 713.235 decisions, more­
over, set binding policy for the federal government as a 
whole. For the convenience of the Court we set forth one 
such decision as an example, see Appendix A, in which the 
Commission reversed its own Appeals Review Board at the 
request of the Department of the Navy. Unfortunately, it is 
not unusual in this area of the law that "[p]laintiff was 
forced to bring this action to the federal courts because
of the agency’s refusal to implement the finding of discrimi-

2 6/
nation," Parker v. Mathews , supra, 411 F. Supp. at 1066.

The district court clearly was entitled to presume that 
the "lawsuit acted as a catalyst which prompted the [defendant] 
to take action implementing its own fair employment policies 
and seeking compliance with the requirements of Title VII," 
Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 429-430

25/ (Continued)
sideration that may have effects beyond the actual 
case at hand, or is otherwise of such an exceptional 
nature as to merit the personal attention of the 
Commissioners. [Sec. 713.235 reads as last amended 
by publication in the Federal Register (37 F.R. 22717), 
effective October 21, 1972.]"

26/ See, e.g., Richardson v. Wiley, 13 EPD ^[11,349 (D.D.C. 
1976) (agency erroneously refused to implement proposed 
disposition accepted by plaintiffs).

18



(8th Cir. 1970). With the action pending, the Shipyard
was put to the choice between compliance or further
recalcitrance with the likelihood of judicial scrutiny
and restraint. That the compliance was grudging is obvious28/
from the face of defendant's pleadings. "Certainly the
fact that plaintiff had already filed suit in this Court . . . 
had a marked effect on the [Naval Shipyard's] acceptance 
of the findings made by the Hearing Examiner," Johnson v . 
United States, supra, 12 EPD at p. 4840. In Johnson, the 
district court found that the mere pendency of a judicial 
action stayed for further administrative proceedings was 
enough to create the presumption that the litigation 
"caused" a favorable administrative ruling. The cir­
cumstances of the litigation also are comparable to those 
in Parker. where "plaintiff's persistent efforts on the 
administrative level were repeatedly thwarted by the agency's

2 7/ The Parham catalyst rule has been widely followed, see, 
e.q., Evans v. Sheraton Park Hotel. 503 F.2d 177, 189 (D.C. Cir. 
1974). Thus, the legislative history of the Civil Rights 
Attorney's Fees Act of 1976, 42 U.S.C. § 1988, (extending the 
42 U.S.C. § 2000e-5(k) provision to other civil rights areas) states:

"A 'prevailing' party should not be penalized for 
seeking an out-of-court settlement, thus helping to 
loosen docket congestion. Similarly, after a complaint 
is, ..filed,. a_,.defendant might voluntarily .cease .the .un­
lawful practice. A court should still award fees even 
though it might conclude, as a matter of equity, that 
no formal relief such as an injunction, is needed.

H.R. Rep. No. 94-1558, 94th Cong. 2d Sess., H.R. Comm, on the 
Judiciary 7 (1976) (emphasis added) (citations omitted).
28/ See R. 48 in which the Secretary's decision is characterized 
as factually and legally inadequate, "an abuse of the administrative 
process," and full of "apparent deficiences in the hearing and findings."

19



non-action."
"After an initial finding of discrimination from 
the investigative report, it was six months before 
HEW issued an interim determination which only 
partially implemented the investigative finding.
A year later, in the spring of 1975, HEW issued 
its final determination which completely dis­
regarded the investigative report. The final 
determination stated that there had been no dis­
crimination and plaintiff would remain in her 
position as a GS-11. Plaintiff was then forced 
into a position where a lawsuit in district court 
was the only means by which she could obtain the 
relief which she had begun seeking over two years 
previously. Significantly, the defendant answered 
the complaint by denying all the allegations of 
discrimination. Yet, on September 18, 1975, the 
defendant totally reversed itself and issued a new 
"final" determination which found that Ms. Parker 
had, in fact, been discriminated against by 
defendant. Due to this change in position, the 
parties agreed to settle the lawsuit as to 
plaintiff's Title VII claim since the agency's 
reversal had provided plaintiff with all the 
relief she had requested two years and seven 
months previously when she had filed her administra­
tive complaint. On the basis of the facts sur­
rounding the settlement of this action, this Court 
finds that the plaintiff is the 'prevailing party' 
and that the award of attorneys1 fees is appropriate 
pursuant to 42 U.S.C. § 2000e-5(k)."

411 F. Supp. at 1064-1065, affirmed on other grounds, Parker
v. califano, supra. Amicus further submits that the
D. C. Circuit’s analysis of this issue in Foster v. Boorstin
should control:

" . . .  [L]ike the Parker case, supra, defendant'sreconsideration of plaintiff's administrative 
complaint involved the agency's setting aside of 
an erroneous administrative action that permitted 
the interrupted administrative process to go 
forward. In both cases the administrative recon­
sideration immediately followed the complainant's 
filing of a lawsuit, and in both cases the District 
Court found that these two events were causally as 
well as temporally related."

20



slip opinion at 8. It is of "considerable interest" that 
the government has challenged whether plaintiff is "prevailing 
party" in this case, although it did not do so in Parker v .
Califano, supra, where "the facts in this case . . . are indis­
tinguishable from the facts of Parker," Foster v. Boorstin, 
supra, slip opinion at 7. This Court should, therefore, 
reject the government's contention "that, by mooting a lawsuit 
through granting relief sought, the Government could avoid 
liability for attorneys' fees," id. at 6.
B. Plaintiff Backman Was "Prevailing Party" In

Administrative-Judicial Proceedings________
The government's "prevailing party" contention that 

a party must have prevailed in judicial proceedings only also is 
wrong. The practical rule for 42 U.S.C. § 2000e-5 (k) stated by 
the district court, in reliance on Johnson v. United States, 
supra, 12 EPD at p. 4840-4841, is that it is not material 
whether the party seeking the award prevailed at the 
administrative level or at the judicial level because both 
are "part and parcel of the same litigation." In Parker v . 
Califano, supra, the D. C. Circuit expressly approved the 
Johnson v. United States language, slip opinion at 20, and 
expressly rejected the government's insistence that in 
awarding attorney's fees a technical "distinction" should be 
made between administrative and judicial enforcement of 
Title VII; the "entire argument clashes sharply with the 
clearly perceived structure and aims of the Title," slip 
opinion at 24. The Court noted that the Supreme Court stressed

-  21 -



the interrelated character of Title VII's administrative 
and judicial enforcement scheme for federal employees in 
Brown v. General Services Administration, supra, 425 u. S. 
at 829-833, slip opinion at 19-20. "Title VII*s 'careful 
blend of administrative and judicial enforcement powers,'
Brown v. GSA. 425 U.S. 820, 833 (1976), is such that 
effective utilization of the administrative proceedings can 
considerably ease a plaintiff's path in any subsequent 
judicial proceeding while, conversely, ineffectiveness at 
the administrative level can make success at the judicial 
level more difficult. Parties to a Title VII suit may, for 
example, submit the record of their administrative proceedings 
to the District court as evidence," Parker v. califano, 
slip opinion at 24 n. 26. The Parker court also noted that 
in Chandlery. Roudebush, supra, 425 U.S. 863 n. 39 f the 
Supreme court, slip opinion at 28 n. 33, had stated its view 
that " [p]rior administrative findings made with respect to 
an employment discrimination claim may, of course, be admitted 
as evidence at a federal-sector trial de novo [and] it can 
be expected that, in light of the prior administrative pro­
ceedings , many potential issues can be eliminated"; compare 
Hackley v. Roudebush, supra, 520 F.2d at 150-152, 156-159; 
Reyes v. Mathews, 13 EPD 511,365 at p. 6215 (D.D.C. 1976). 
Finally, the "realities of legal practice" require that 
"[f]or a conscientious lawyer representing a federal employee

22



in a Title VII claim, work done at the administrative level
is an integral part of the work necessary at the judicial

29/
level," slip opinion at pp. 28-29.

Nowhere is this more clear than in the circumstances of
this case where because Mrs. Backman prevailed on the merits
in administrative proceedings, the government was barred
from relitigating the merits in court. Her complaint
appended a copy of the hearing examiner's 16-page analysis,
findings, and recommended decision (R. 4), and the Secretary
of the Navy's decision (R. 22) which concurred in the hearing
examiner's recommended decision and proposed corrective action and
which stated that " [h]is findings are supported by the record

30/and are free of error." Although grudging the government 
acquiesced in the administrative determination that the Naval

2 9 /  "Most obviously an attorney can investigate the
facts of his case at a time when investigation will 
be most productive. The attorney may thus gain 
the familiarity with the facts of the case that 
is so important in the fact-intensive area of em­
ployment discrimination. Perhaps even more 
important, the administrative proceedings allow 
the attorney to help make a record that can be 
introduced at any subsequent Dxstrict court trial. 
Especially in an instance where development of a 
thorough administrative record results xn an abbre­
viated but successful trxal, refusing to award 
attorneys' fees for work at the administrative level 
would penalize the lawyer for his pre-trial effec­
tiveness and his resultant conservation of judicial 
time. Simply to describe the operation of appellant's 
suggested distinction between attorneys' fees at 
the administrative and judicial levels is to 
emphasize its irrationality."

Id. (emphasis added). Compare McMullen v. Warner, 12 EPD 511,107, 
at p. 5124 (D.D.C. 1976) (Sirica^ J.); Reyes v. Mathews, supra,
13 EPD at p. 6215. ' -----
30/ See supra at 19 n. 28.

23



Shipyard had discriminated against Mrs. Backman on the basis
of sex, and at no time did the government contest the finding

31/
of discrimination. The administrative finding of
discrimination in any event was dispositive, whether as the 
law of the case, see Local 1401 v. NLRB. 463 F.2d 316, 322 
(D.C. Cir. 1972) or as an admission against interest, see Rule 
801(d)(2), Fed. R. Evid.; Advisory Committee Note in Moore’s 
Fed. Pract., Rules Pamphlet, Pt. 2 at 818-21. See Williams 
v. Saxbe. 12 EPD 511,083 (D.D.C. 1976) (government's request
for a trial de novo denied because the government had stipu-

32/
lated to review of the administrative record). Thus,

31/ Compare, e.g., Parker v. Matthews, supra, 411 F. Supp. 
at 1064-1065 (case settled in light of administrative pro­
ceedings; government concedes prevailing party status on 
appeal); Johnson v. United States, supra, 12 EPD 511,039 
(plaintiff obtains relief in administrative proceedings on remand 
and is denied further injunctive relief by court; government 
concedes prevailing party status on appeal); Foster v. Boorstin,
" [N]either the District Court nor the Government on appeal 
suggests that appellant did not prevail on his claim that he 
had been discriminated against or in his quest for proper 
remedial relief . . .  [but] that because the bulk of appellant's 
litigational time and effort was spent in the administrative 
rather than the judicial process, he was not entitled to 
attorneys' fees," slip opinion at 7).
32/ The government is not entitled to a "judicial trial de_ novo" 
on liability where it has previously determined that it is liable 
for discrimination in its own administrative proceedings. Unlike 
employees, an agency has no right to file a lawsuit under 42 
U.S.C. § 2000e-16(c). An agency is also on a different footing 
practically; one reason Congress gave federal employees the right 
to a judicial trial de_ novo was its concern that administrative 
decisions were partial to agency management, chandler v. Roude- 
bush, supra, 425 U.S. at 863 n. 39 ("The goal may have been to 
compensate for the perceived fact that '[t]he Civil Service Com-

_ 24



whether a federal employee prevails in administrative or 
judicial proceedings is not material. Indeed, had Mrs.
Bachman sought to embody the relief obtained in administrative 
proceedings in a declaratory or summary judgment, see, e.g., 
Day v. Mathews, 530 F.2d 1083 (D.C. Cir. 1976);
Williams v. Saxbe, supra, there is no reason 
it would have been denied. To do so would have been com­
pletely an empty formal exercise. To have obtained such 
"judicial" relief would of course satisfy the government's 
requirement for "prevailing" in judicial proceedings.

The inescapable conclusion is that Mrs. Backman was, as 
the lower court found, the "prevailing party."

II.
ASSUMING ARGUENDO THAT THE SUIT WAS FILED 
FOR ATTORNEY'S FEES DENIED IN ADMINISTRA­
TIVE PROCEEDINGS ALONE, THE D.C. AND FOURTH 
CIRCUIT DECISIONS STILL CONTROL__________

The government's brief goes to some lengths, at pp.
9-10 n. 19, as well it might, to distinguish the Fourth
Circuit's decision in Johnson v. United States, supra, as
affirming the district court decision the narrow ground

32/ (continued) mission's primary responsibility over all 
personnel matters in the Government . . . create [s] a built-in 
conflict of interest for examining the Government's equal 
employment opportunity program for structual defects which may 
result in a lack of true equal employment opportunity.'] 
Management, unlike complainant, also, has full access to informa­
tion in agency files to prepare its case in administrative 
proceedings; it is not until the judicial stage that the com­
plainants have any right to discovery, see chandler v. Roudebush, 
supra; Hackley v. Roudebush, supra, 520 F.2d at 137-14 and T7T 
(Leventhal j. concurring).

25



that "this remanded administrative proceeding was ancillary to
Johnson's initial action in the district court," 554 F.2d at 

33/
633. Presumably, the government also argues that the D. C.
Circuits' decisions are also distinguishable on like grounds

34/
by pointing to Parker, slip opinion at 21 n. 24 (incorporated

33/ The Fourth Circuit expressly stated:
"We do not reach the question of whether a prevailing 
party would be entitled to attorney's fees for 
representation in an administrative proceeding which 
took place entirely independently of, or prior to, an 
action in the district court, as that issue is not 
raised by the facts of this case."

Id.

34/ "In this case, as we have noted, appellee had to
file an action in the District court before she was 
accorded a just remedy for the employment discrimi­
nation she had suffered. It was the District Court, 
therefore, that made the attorneys' fees award which 
is the subject of this appeal. Appellant argues that 
affirming the holding that a District Court may award 
attorneys' fees for services at the administrative and 
judicial levels will have the anomalous result that a 
Title VII plaintiff who is unsuccessful in the administra­
tive proceedings but succeeds in court will be able to 
recoup attorneys' fees for all legal services rendered, 
while a plaintiff who is successful at the administrative 
level will not be able to recoup any attorneys' fees.

"Our holding today is, of course, limited to the 
particular facts of this case. This court need not and 
does not, therefore, decide whether the anomaly predicted 
by appellant will in fact result. We do point out, 
however, that appellee has suggested two possible ways 
in which a plaintiff successful in administrative pro­
ceedings might obtain attorneys' fees for services 
rendered in those proceedings. The first possibility 
is to allow the plaintiff to come to court on the single 
issue of whether, and in what amount, attorneys' fees are 
to be awarded. The second is for the agency itself to

26



in Foster, slip opinion at 9 n. 8). Amicus, however,
believes that even assuming arguendo that the administrative
and judicial proceedings were "separate,” i.e., that Mrs.
Backman filed her Title VII suit solely for attorney's fees,
the result would still be the same.

As the Parker decision indicates, federal employees
may file a Title VII action pursuant to 42 U.S.C. § 2000e-16(c)
if dissatisfied with the resolution of their administrative
complaint because of the denial of attorney's fees. In the
instant case, the government on appeal no longer contests
jurisdiction for Mrs. Backman's suit even as limited to one11/for fees alone. That being so, 42 U.S.C. § 2000e-16(d) 
requires that "[t]he provisions of 706(f) through (k)

34 / (continued)
award fees pursuant to its authority under § 717(b),
42 U.S.C. § 2000e-16(b), to 'enforce the provisions 
[prohibiting employment discrimination] through 
appropriate remedies, including reinstatement or 
hiring of employees with or without back pay, as 
will effectuate the policies of this section * * *' 
(emphasis added).

"We stress that we wish to intimate no views as 
to the merits of either of appellee's suggestions.
They are mentioned only to show that it would be 
premature to conclude that our decision will have the 
consequences feared by appellant."

35/ compare, Brief For Appellant at 2, with. Defendant's 
Brief Re: Summary Judgment (R. 49-50) ("The Plaintiff Fails 
To State A Claim Under Title VII").

Federal Title VII actions in which plaintiff seeks further relief are common, see, e.g., Day v. Mathews, 530 
F.2d 1083 (D.C. Cir. 1976) (plaintiff erroneously denied 
reinstatement and back pay administratively).

27



36/
[§ 2000e-5(f) through 5(h)], as applicable, shall govern 
civil actions brought hereunder," i.e., 42 U.S.C. § 2000e-5(k) 
would govern. The language, purpose and legislative history 
of § 2000e-5(k), as construed by Parker v. califano, supra, 
and Foster v. Boorstin, supra, apply equally to the situation 
of an action to redress the denial of fees alone; nothing in 
Parker or Foster turns on the fact the purpose of the case is 
one for fees only. As to Johnson v. united States, the same

36/ "The most natural reading of the phrase 'as
applicable' in § 717(d) is that it merely reflects 
the inapplicability of provisions in §§ 706(f) 
through (k) detailing the enforcement responsibilities 
of the EEOC and the Attorney General. We cannot, 
therefore, agtee with the view expressed by the 
District court in Hackley v. Johnson, supra, and 
relied on by the Court of Appeals here, that Congress 
used the words 'as applicable' to voice its intent 
to disallow trials de_ novo by aggrieved federal 
employees who have received prior administrative hear­
ings. As the Court of Appeals for the District of 
Columbia circuit held in reversing Hackley v. Johnson, 
supra, such an interpretation of the phrase 'as appli- 
cable' would require a strained and unnatural reading 
of §§ 706(f) through (k). Hackley v. Roudebush, 171 
U.S. App. D.C., at 389, 520 F.2d, at 121. This Court 
pointed out in Lynch v. Alworth-Stephens Co., 267 U.S. 
364, 370, that '"the plain, obvious and rational 
meaning of a statute is always to be preferred to any 
curious, narrow, hidden sense that nothing but the 
exigency of a hard case and the ingenuity and study 
of an acute and powerful intellect would discover.'"
To read the phrase 'as applicable' in § 717(d) as 
obliquely qualifying the federal employee's right to 
a trial de_ novo under § 717(c) rather than as merely 
reflecting the inapplicability to § 717 (c) actions of 
provisions relating to the enforcement responsibilities 
of the EEOC or the Attorney General would violate this 
elementary cannot of construction."

Chandler v. Roudebush, supra, 425 u.S. at 847-848; compare
Hackley v. Roudebush, 520 F.2d at 119-121.

- 28



condition of the "ancillary" nature of the administrative 
proceedings to the judicial action obtains since the fees 
award sought in court are for administrative proceedings 
in which plaintiff prevailed on the merits, see supra part 
I—B . The second factor relied on by the Fourth Circuit, 
that " [i]f Johnson were not represented, the court's order 
remanding the case might well have been less effectively 
executed," slip opinion at 3, would of course also obtain.
Thus, the distinction proposed by the government makes no 
difference.

While the district court did not rest its decision on 
42 U.S.C. § 2000e-16(b) and the issue need not be reached, 
amicus believes that the discussion of the question in 
appellee's brief is correct, and that only two brief comments 
on the government's brief, at pp. 7-10, are required. First, 
the government relies principally on the D. C. Circuit's 
decision in Turner v. Federal Communication Commission, 514 
F.2d 1354 (D.C. Cir. 1975) and Fitzgerald v. u. S . civil 
Service Commission. 554 F.2d 1186 (D.C. Cir. 1977), neither a 
case in which 42 U.S.C. § 2000e-16(b) or even Title VII was 
in issue, as precluding further inquiry. In Parker, of course, 
the D. C. Circuit mentioned the § 2000e-16(b) issue, without 
intimating any views, as open in order "to show that it would 
be premature to conclude that our decision [concerning 
§ 2000e-5(k)] will have the [anomalous] consequences feared,"

- 29



slip opinion at 21 n. 24. Moreover, the Fitzgerald opinion,
authored by chief Judge Bazelon (who was also on the Parker
panel and joined in Judge Wright's decision) expressly stated
that While the Veterans' Preference Act did not waive sovereign
immunity, "[i]n an appropriate case, it might be possible to
find an express waiver in particularly clear legislative
history," slip opinion at 6. Furthermore, Parker expresslv

37/
distinguishes Turner. Second, the Supreme Court has once
again characterized § 10(c) of the National Labor Relations 
Act, 29 U.S.C. § 160(c) as "the model for Title VII's remedial 
provisions," International Brotherhood of Teamsters v. united 
States, 45 U.S.L.W. 4506, 4517 (decided May 31, 1977) (back 
pay), reiterating the point made earlier in Albemarle Paper 
Co. v. Moody, 422 U.S. 405, 419 (1975) and Franks v. Bowman 
Transportation Co.. 424 U.S. 747, 769 (1976). This once again 
emphasizes that the language of § 2000e-16(b) itself, like 
the similar § 2000e-5(g) remedial provision, based on § 10(c) 
of the NLRA, 29 U.S.C. § 160(c), contemplates recovery of 
fees, see, e.g., NLRB v. Food Store Employees. 417 U.S. 1, 8-9 
(1974).

37/ "[T]he petitioner in Turner had requested
the FCC to order a private party to pay petitioner's 
attorneys' fees covering services rendered at the 
administrative level. This is quite different from 
[plaintiff's] request in the instant case for the 
District Court to require a government agency to 
pay attorneys' fees."

Slip opinion at p. 14 n. 17.

30



III.
THE AVAILABILITY OF ATTORNEY'S FEES FOR 
PREVAILING COMPLAINANTS IS A PRACTICAL 
NECESSITY IN FEDERAL TITLE VII ADMINISTRA- 
TIVE PROCEEDINGS

As stated above, the nature of the legal services provided, 
the worth of the attorney's fees awarded, and the necessity 
of legal representation in administrative proceedings in this 
case are all conceded, supra, at pp. 7-8. Amicus has also 
discussed how the government all but confesses that their view 
that attorney's fees for administrative proceedings be denied 
cannot be justified as advancing the practical enforcement 
of Title VII's "complementary administrative and judicial 
enforcement mechanisms," Brown v. General Services Administration, 
supra. 425 U.S. at 831, supra, at pp. 8-10. In this part of 
the argument, we briefly demonstrate that legal repre­
sentation for prevailing complainants is generally a practical 
necessity, see Parker v. Califano, slip opinion at 24-29 
(government's contention that lawyers unnecessary rejected).

We begin with the fact that:
" [T]he agency [management's] representative is likely 
to be a lawyer, which can only serve to exacerbate 
a non-lawyer plaintiff's disadvantage. Any realistic 
assessment of Title VII administrative proceedings 
requires the conclusion that . . .  an employee would 
often be ill-advised to embark thereon without legal 
assistance."

38/
Parker v. Califano, slip opinion at 27. As Judge Sirica

38/ compare Hackley v. Roudebush, supra, 520 F.2d at 140 n. 130.

31



put it, "federal employees . . .  must seek relief administra­
tively before going to court . . .  and . . .  at that stage a 
lawyer will often be a practical necessity," McMullen v. Warner, 
supra, 12 EPD at p. 5124. Thus, the Fourth Circuit observed 
that " [i]f Johnson were not represented, the court’s order 
remanding the case [for administrative proceedings] might well 
have been less effectively executed," Johnson v. united States, 
554 F .2d at 633. In these cases, as here, plaintiff had to 
engage legal counsel for the simple reason that management 
charged with discrimination was provided with counsel paid by 
the agency. That agencies generally deem that representation 
by counsel is necessary for management officials standing alone 
is sufficient reason to reject the government's contention 
that legal representation for complainant employee is somehow 
unessential. The unequal dual standard for legal representation 
has recently been condemned by Congress as an example of the 
inequities fostered by agency control of the complaint system: 
"The complainant must also pay for any legal assistance he/she 
receives in the preparation of the complaint; while agencies 
can draw upon legal support from their own staff attorneys," 
Subcom. on Equal Opportunities of the H.R. Com. on Education and 
Labor, Staff Report on Oversight Investigation Of Federal 
Enforcement Of Equal Employment Opportunity Laws, 94th Cong.,
2d Sess. 58 (1976). Both complainants and management

- 32



officials are agency employees; there is no proper basis for
separate and unequal treatment. Indeed, appellee does not
ask the court to treat complainant and management alike by
always providing counsel for both parties when it is provided
for one party; only that when an employee prevails in
administrative proceedings that he be able to recover reasonable
attorney's fees as part of the "make whole" relief required 

3 9/
by Title VII, "To cure the effect of the discrimination I 
have suffered and to make me whole financially, I believe that 
I must be reimbursed for the legal expenses I have been forced 
to incur" (R. 36).

Parker v. Califano, supra, slip opinion at 26-27, states
the obvious that "lawyers would clearly be of assistance to a 

40/
lay person" in the prosecution of his complaint.

"For example, the [DISCRIMINATION COMPLAINTS 
EXAMINERS HANDBOOK (1973), published by the Office 
Federal Equal Employment Opportunity,] makes pro­
vision for continuances and describes the grounds 
for granting or denying them (id. at 20-21), pro-

39/ Albemarle Paper Co. v. Moody, supra, 422 U.S. at 418-421.
40/ while the Parker opinion states that lawyers are "not 
indispensable," it does so without noting until later in the 
opinion, at 27, that management is likely to have a lawyer. 
Amicus submits that for the generality of cases, in which 
management is represented by an attorney, legal representation 
is necessary for the complainant just in terms of counter­
vailing power.

- 33



vides for receipt of stipulations (id. at 38), 
speaks to "relevancy," "materiality," and 
"repetitiousness" as matters of concern when 
ruling on admissibility (id. at 47-48), and 
entitles the parties to participate in drafting 
written interrogatories (id. at 29). The HANDBOOK, 
and federal regulations, make clear that in a Title 
VII administrative hearing the employee is expected 
to put evidence into the record, offer proof, argue 
against exclusion of evidence, agree on stipulations, 
and examine and cross-examine witnesses. See 5
C.F.R. Part 713 (1977). Settlement of the charge 
is possible at any stage of the proceedings and 
agreements may, accordingly, have to be negotiated 
and rights may be waived."

The legal services provided by Mrs. Backman's counsel are 
evident from the hearing examiner's analysis, finding and 
recommend decision (R. 5); appellee also has moved to have 
the record on appeal supplemented with the transcript of the 
two-day administrative hearing in order to further demon­
strate the adverserial nature of the hearing, and the legal 
representation involved. The examiner's report and the tran­
script graphically demonstrate that the government's assertion 
that counsel are not needed is without a shred of credible 
support: the administrative hearing was for all intent and 
purposes a judicial trial. (As stated above, the transcript 
and the hearing examiner's report are admissible in court 
in the same way that a deposition or hearing before a master 
and a master's report are admissible, supra, at 22-23.) It is the 
experience of amicus that the administrative hearing in this 
case is fairly typical in its adverserial quasi-judicial 
character.

34



It also is the experience of amicus that federal
employees usually are unable, for financial reasons, to obtain 
legal representation for administrative proceedings, and 
that the usual administrative hearing pits the complainant 
employee (either alone or represented by a non-lawyer fellow 
employee or union representative) against the management 
official and his agency attorney. The Civil Service Com­
mission's regulations expressly recognize that the complainant 
employee has the right to have a representative from the 
filing of the administrative complaint forward, see 5 C.F.R.
§§ 713.214(a), 713.215, 713.218(c)(2), 713.221(b)(1), but 
no right to have a lawyer appointed. The Appeals Review 
Board of the commission has specifically held that the 
regulations do not allow for counsel fees to complainant who 
prevails in the administrative process, In_ re Brown, Appeals 
Review Board Decision (November 8, 1974).

Thus, if the complainant cannot afford to hire an attorney, 
he can get counsel only if he can convince a government- 
employed attorney to act as his representative. Under the 
regulations, however, only an attorney employed by the 
complainant's own agency can do so on official time, if such 
representation is not "inconsistent with the faithful per­
formance" of the attorney's regular duties as determined by 
the agency. An attorney from another agency can act as

35



representative only by using up annual leave or by taking a 
leave without pay. Federal Personnel Manual Bulletin 
No. 713.41 (October 10, 1975). with respect to the 
representation of complainant employees by agency lawyers, 
Parker points out that:

"Without questioning in any way the competence 
or integrity of such attorneys, we find this an 
unsatisfactory alternative to allowing a plaintiff 
to choose his own counsel from outside his partic­
ular agency. A plaintiff who is asked to rely on 
an attorney from within the very agency about whose 
practices he is complaining may lack faith in the 
objectivity of the proceeding. We fear that the 
absence of independent counsel could only compound 
the conflict of interest that might be perceived 
to exist when the agency accused of discrimination 
must process and rule on the claim."

slip opinion at 28.
Moreover, the Civil Service Commission has recently 

issued regulations which permit employees to bring administra­
tive class action complaints, 5 C.F.R. §§ 713.601 - 713.643,

42/
published in, 42 Fed. Reg. 11807 (March 1, 1977), that 
further aggravate the present unequal availability of legal 
representation in administrative proceedings. The new regu­
lations, which are based on Rule 23, Fed. R. civ. Pro., place

42/ The new regulations were issued pursuant to court order in 
Barrett v. U. S. Civil Service Commission, 69 F.R.D. 544 (D.D.C. 
1975). In Barrett, the court held that the prior refusal of 
the Commission to accept, process and resolve complaints of class 
discrimination were in violation of Title VII.

- 36



a much greater premium on legal counsel by permitting: com­
plaints of much greater extent, scope and complexity; binding 
effect of a decision on class members; and, for the

« /
first time, a right for the complainant to conduct discovery. 
No change, however, is made in the availability of counsel for 
complainants, although the regulations appear to recognize

44/
that legal representation may be necessary. Without recovery

43/ 5 C.F.R. § 713.608(b)(1) provides:
"Both parties are entitled to reasonable development 
of evidence on matters relevant to the issues raised 
in the complaint. Evidence may be developed through 
interrogatories, depositions, and requests for pro­
duction of documents."

44/ Thus, § 713.603(g) provides:
"If the agent is an employee in an active duty 

status, he/she shall have a reasonable amount of 
official time to prepare and present his/her com­
plaint. Employees, including attorneys, who are 
representing employees of the same agency in dis- 
crimmation complaint cases must be permitted to use 
a reasonable amount of official time to carry out 
that responsibility whenever it is not inconsistent 
with the faithful performance of their duties. 
Although there is no requirement that an agency 
permit its own employees to use official time for 
the purpose of representing employees of other 
agencies, an agency may do so at its discretion.
If the use of official time is not granted in such 
cases, employees may be granted, at their request, 
annual leave, or leave without pay."

(Emphasis added.)

37



of attorney's fees, it is impossible to conceive of the new
regulations being implemented since legal representation is
in most cases a sine qua non of the adequacy of a named plaintiff

457to represent a class. The Civil Service Commission would
appear to agree; Federal Personnel Manual Letter 713-38 
(May 31, 1977), explaining the new regulations, advises that 
the agency "should make every effort to ascertain that a 
potential agent f.i.e., class representative,] knows and 
understands the burdens and responsibilities assumed by an 
agent, is aware of an agent's entitlement to representation, 
and is informed that one criterion for acceptance or 
rejection of a class complaint is the perceived ability 
of the agent or his/her representative to fairly and ade­
quately protect the interests of the class." p . 2.

For the above reasons, amicus submits that recovery 
of attorney's fees by a prevailing employee for the costs 
of legal representation in administrative proceedings is 
imperative.

45/ The equivalent of Rule 23(a)(4), Fed. R. Civ. Pro., is 
§ 713.604(b)(iv).

38



CONCLUSION

For the above reasons, the order granting plaintiff's 
motion for summary judgment, and denying defendant's motion 
for summary judgment of December 7, 1976, and the judgment of 
December 28, 1976 should be affirmed.

Respectfully submitted,

X —- ^
JACK GREENBERG 
CHARLES STEPHEN RALSTON 
MELVYN R. LEVENTHAL 
BILL LANN LEE 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

LOWELL JOHNSTON
12 Geary Street
San Francisco, California 94108

Attorneys for the NAACP Legal 
Defense and Educational Fund,
Inc, as Amicus Curiae________

39



CERTIFICATE OF SERVICE

The undersigned certifies that on this 29th day of 
July 1977, copies of the foregoing Brief for the NAACP Legal 
Defense and Educational Fund, Inc., As Amicus curiae were 
served on counsel for the parties by U. S. mail, first class, 
postage prepaid, addressed to:

Paul O'Neil, Esq.
Schroeter, Goldmark & Bender 
540 Central Building 
Seattle, Washington 98104
Robert E. Kopp, Esq.
John M. Rogers, Esq.
Civil Division, Appellate Section 
U. S. Department of Justice

Defense and Educational Fund 
Inc. as Amicus Curiae



APPENDIX A
[Typescript prepared from 
illegible original]

December 19, 1973

Mr. M. Melvin Shralow 
Attorney at Law 
1330 Chestnut Street 
Philadelphia, Pennsylvania 19107
Dear Mr. Shralow:
This is in further response to your letter of November 29, 1973 
regarding the discrimination complaint case of Mrs. Jeanne S.
Ellman, Mr. Milton M. Mellman, and Mr. Louis Shapiro, which was 
decided by the Commission's Board of Appeals and Review on 
April 13, 1973 and reopened by the Commissioners of the Civil 
Service Commission on November 14, 1973.
In your letter you question the authority of the Commissioners to 
review the case, and you protest their decision reversing the 
decision of the Board of Appeals and Review and affirming the decision 
of the Secretary of the Navy. You request that the decision of the 
Commissioners be rescinded. For your information, under the provision 
of Section 713.235 of the Civil Service Regulations, the Commissioners 
may, in their discretion, reopen and reconsider a previous decision of 
the Board of Appeals and Review when the party requesting reopening 
submits written argument or evidence which tends to establish that:

(a) New and material evidence is available that was 
not readily available when the previous decision 
was issued;

(b) The previous decision involves an erroneous inter­
pretation of law or regulation or a misapplication 
of established policy; or

(c) The previous decision is of a precedential nature 
involving a new or unreviewed policy consideration 
that may have effects beyond the actual case at hand, 
or is otherwide of such an exceptional nature as to 
merit the personel attention of the commissioners.

On the basis of a petition filed on July 5, 1973 by the Department of 
the Navy, a copy of which was furnished to you, the commissioners 
reviewed the file and determined that the Board of Appeals and Review

la



2
had misapplied the applicable Civil Service Regulations in this case. 
Specifically, they found that the complainants had not filed a valid 
first-party type complaint of discrimination, and that no evidence had 
been submitted sufficient to support a finding that any of the 
complaints would have been selected for promotion to any specific 
vacancy, in the absence of religious discrimination.
Generally, in order for an employee to have a valid first-party type 
complaint of discrimination with regard to his failure to be promoted, 
the employee must bring the matter to the attention of his Equal 
Employment Opportunity Counselor within thirty days of the date of a 
specific promotion action on which another employee was promoted, and 
present any evidence or information he may have for believing that 
prohibited discrimination was the reason for his non-selection for the 
promotion, and for the selection of the other employee for the promotion. 
In this case the complainants did not allege as a basis for their 
complaint any specific occasion on which they were non-selected for 
promotion, but alleged generally that there had been a failure of 
promotion of Jewish employees since 1965. With regard to Messrs. Mellman 
and Shapiro, who were Grade GS-12 employees, there had been no promotion 
of any GS-12 employee to Grade GS-13 within the time limit for them to 
have a valid first-party type complaint of discrimination at the time 
they brought their complaint to the Equal Employment Opportunity 
Counselor. Thus, they could not refer to any specific failure of 
promotion which would have been a basis for a valid and timely first- 
party type complaint of discrimination.
Even if it were determined that discrimination against employees of their 
faith existed during the period of time in question from 1965 to 1971, 
this, standing alone, would not have been a valid basis under the Civil 
Service Regulations and policies for the Commission to order the agency 
to promote Messrs. Mellman and Shapiro to the next two GS-13 vacant 
positions because there was no showing that in the absence of discrimina­
tion because of their religion they would have been promoted to any 
specific vacancy.
Under the circumstances, the Commissioners decided that they had no 
alternative except to reopen the case, reverse the decision of the 
Board of Appeals and Review, and affirm the decision of the Secretary of 
the Navy which required the agency to take a number of affirmative 
actions to ensure that all future selections of employees for promotion 
are taken without any prohibited discrimination.
In view of the above, we find no valid basis for rescinding the decision 
of the Commissioners in this case, and the request is denied.

2a



3

Because of the strong feelings you express in your letter regarding 
this case, I regret that this reply could not be favorable.
For the Commissioners:

Sincerely yours, 
s/ RBB
t/ Robert B. Bates 

Assistant to the
Commissioners (Appeals)

cc: ;
Honorable Joseph T. McCullen, Jr. 
Assistant Secretary of the Navy 
Manpower and Reserve Affairs 
Department of the Navy 
Washington, D. C. 20350

RBBates:is 12/19/73

3a