Fog v. Reno Brief of Amicus Curiae in Support of Plaintiff-Appellant Matthew F. Fogg

    SCHEDULED FOR ORAL ARGUMENT 
MONDAY, MARCH 19, 2001

In  The

UNITED STATES COURT OF APPEALS
fo r  the

DISTRICT OF COLUMBIA CIRCUIT
No. 00-5138

MATTHEW F. FOGG,

Plaintiff-Appellant,

r.

JANET RENO, Attorney General of the United States,

Defendant-Appellee.

On Appeal from  the United States District Court 
for the District o f Columbia

BRIEF OF AMICUS CURIAE
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 

IN SUPPORT OF PLAINTIFF-APPELLANT 
MATTHEW F. FOGG

Elaine R. Jones 
Theodore M. Shaw 
Norman J. Chachkin 
Charles S. Ralston 
Robert H. Stroup 
Elise C. Boddie 
Attorneys for Am icus Curiae 
NAACP Legal Defense and 

Educadonal Fund, Inc. 
99 Hudson Street, 16th FI. 
New York, NY 10013 
212 965-2200



CERTIFICATE AS TO PARTIES, RULINGS AM) RELATED CASES

Parties and Amiens

All parties, intervenors and amici appearing in this Court are listed in the Brief for 

Plaintiff-Appellant Matthew F. Fogg.

Rulings Under Review

The rulings under review in D.D.C. Case No. 94-CV-2814 are: (i)the Order by Judge 

ihomas P. Jackson on March 30, 1998 granting Defendant/Appellee’s motion for partial 

summary judgment on the non-discrimination issues (App. A40); (ii) the Memorandum and 

Order by Judge Thomas P. Jackson on July 1, 1999 granting Defendant/Appellee’s motion for 

remittitur of the verdict and rejecting the advisory verdict of the jury as to allegations of racially 

discriminatory conduct prior to November 21, 1991 (App. A45); and (iii) the Order by Judge

Thomas P. Jackson on February 25.2000 denying in substantial part Plaintiff/Appellee’s motion 

for equitable relief (App. A52).

Related Cases

The case previously was before this Court in No. 99-5299 on appeal from the District 

Court's Memorandum and order of July 1. 1999. By Order dated December 15, 1999, this Court

i



dismissed that appeal as premature. A cross-appeal by Appellee (No. 00-5168), which had been 

consolidated with this case, was dismissed, upon Appellee’s motion, by Order dated June 26. 

2000. There are no other related cases.

Charles Stephen Ralston 
Counsel for Amicus Curiae

li



DISCLOSURE STATEMENT REQUIRED BY RULE 26.1. F.R.A.P.

The NAACP Legal Defense and Educational Fund, Inc., is a not-for-profit 

corporation organized under the laws of the state of New York as a legal services 

corporation. It is a tax-exempt, charitable institution whose purpose is to provide 

legal assistance to African-Americans and others in cases involving civil and 

constitutional rights. It has no members, shareholders, or owners, and has no parent

or subsidiary corporations.

CHARLES STEPHEN RALSTON 
Counsel for Amicus Curiae

in



TABLE OF CONTENTS

CERTIFICATE AS TO PARTIES, RULINGS AND RELATED C A SES..................................... j

CORPORATE DISCLOSURE STATEM ENT.......................................  -

TABLE OF AUTHORITIES
.................................................................................. ..

GLOSSARY .................
....................................................................................... ..

JURISDICTION ........................................................................

STATUTES AND REGULATIONS......................................................................  j

STATEMENT OF FACTS ..........................................................................

SUMMARY OF A RGU M EN T............................

ARGUMENT . . .

THE SECTION 1981A CAP ON COMPENSATORY AND PUNITIVE 
DAMAGES SHOULD BE APPLIED PER CAUSE OF ACTION RATHER 
THAN PER LA W SU IT...........................................................

A. The Language in Section 1981a Does Not Specify Whether
the Cap Is to Be Applied Per Cause of Action Or Per Lawsuit and Both 
Interpretations Are Reasonable

B. The Legislative History of the Civil Rights Act of 1991 Clearly 
Supports a Per Cause of Action Interpretation

C . A Per Cause of Action Interpretation Is Consistent with Title VII’s 
Purpose of "Making Whole" Victims of Racial Discrimination

THE DISTRICT COURT ERRED AS A MATTER OF LAW IN 
DISREGARDING THE JURY’S BINDING FACTUAL FINDINGS 
CONCERNING DEPUTY FOGG’S RACIALLY DISCRIMINATORY 
DISCHARGE.................

CONCLUSION
. . . .  22

IV



TABLE OF AUTHORITIES

FEDERAL CASES

Albemarle v. Moody,
422 U.S. 405 (1975)................

Batyv. Willamette Industrial, Inc.,
172 F.3d 1232 (10th Cir. 1999)

Beacon Theaters v. Westover,
359 U.S. 5 0 0 (1959).................

Blum Stinson
465 U.S. 886(1984)..................

17, 18

...... 4

....19 

.... 10

Bradshaw v. University o f  Maine System,
870 F. Supp. 406 (D. Me. 1994) .....................

Brown v. Brody.
199 F.3d 446 (D.C. Cir. 1999) ........................

City o f  Mesa v. Federal Energy R egula tor Commission, 
993 F.2d 888 (D.C. Cir. 1993) ....................... ’

Cleveland, et al. v. Runyon,
972 F. Supp. 1326 (D.Nev. 1997)....................

Dunning v. General Electric Co..
892 F. Supp. 1424 (M.D. Ala. 1995) ....

EEOC v. W&O.
213 F.3d 600 (11th Cir. 2000) ...............

Franks v. Bowman Transportation Co.,
424 U.S. 747 (1975).................................

Gibson v. Mohawk Rubber Co.,
695 F.2d 1093 (8th Cir. 1982) ...............

Hayes v. United States Government Printing Office, 
684 F.2d 137 (D.C. Cir. 1982) ...... ....... '

.................8

.....................6

....................6

11, 12, 15, 16

................. 8

.................  17

. 17 

.20  

. 21

v



passim

Hudson v. Reno,
130 F.3d 1193 (6th Cir. 1997)

Kasap v. Folger Nolan Fleming & Douglas, Inc.,
166 F.3d 1243 (D.C. Cir. 1999)........

Kolstad v. American Dental Association,
527 U.S. 144 L. Ed. 2d 494 (1999) ................................................

Kraemer-Katz v. U.S. Public Health Service,
872 F. Supp. 1235 (S.D.N.Y. 1994). affd, 71 F.3d 404 (2d Cir. 1995)

Lander v. Lujan,
888 F.2d 153 (D.C. Cir. 1987) .................................................................

Las Vegas v. Lujan,
891 F.2d 927 (D.C.Cir. 1989) ...................................................................

In re Lewis v. Sears, Roebuck & Co.,
845 F.2d 624 (6th Cir. 1988) ..........................................................

Lincoln v. Board o f  Regents o f  University System.
697 F.2d 928 (11th Cir. 1983) .................................................................

Lindsey v. American Cast Iron Pipe Co.,
810 F.2d 1094 (1 1th Cir. 1987) ........................................................

Lytle v. Household Manufacturing. Inc..
494 U.S. 545 (1990)...........................................................

Martini v Federal National Mortgage Association, el al 
178 F.3d 1336 (D.C. Cir. 1999) ......................

McKennon v. Nashville Banner Public Co.,
513 U.S. 352 (1995).........................................................

McKinnon v Blue Cross & Blue Shield o f  Alabama 
935 F.2d 1187 (11th Cir. 1991) ............

Monterey Coal Co. v. Federal Mine Safety & Health Review Commission 
743 F.2d 589 (7th Cir. 1984) ...........................

.. 6 

12 

20 

17

3, 4 , 19

.... 19

.... 19

....20

.... 19

.....7

3, 12 

.... 12 

9, 15

vi



North Haven Board o f  Education v. Bell,
456 U.S. 512 (1982)...........................................

Ogden v. Wax Works, Inc.,
29 F. Supp. 2d 1003 (N.D.Iowa 1998)............

Petitti v. New England Telephone & Telegraph,
1992 U.S. Dist. LEXIS 18112 (D.Mass. 1992)

Purer v. U.S.,
1988 U.S. Dist. LEXIS 16562 ..........................

Reynolds v. CSX Transportation, Inc.,
115 F.3d 860 (11th Cir. 1997) ..........................

Robinson v. Shell Oil Co.,
519 U.S. 337 (1997)............................................

Seban v. Block, et al.,
626 F. Supp. 545 (S.D.Ind. 1985) ......................

See EEOC v. Commercial Office Products Co.,
486 U.S. 107(1988).............................................

See EEOC v. Monclova Township,
920 F.2d 360 (6th Cir. 1990) .............................

Sinito v. United States,
176 F.3d 512 (D.C.Cir. 1999) .............................

Smith v. Chicago Sch. Reform Board o f  Trustees, 
165 F.3d 1142 (7th Cir. 1999) ..........'

Song v. Ives Laboratories, Inc.,
957 F.2d 1041 (2d Cir. 1992).............

Train v. Colorado Public Int. Research Group.
427 U.S. 1 (1 9 7 6 )...........................

U.S. v. Herbert,
860 F.2d 620 (5th Cir. 1988) ..............

•vii

16. 17

...... 3

13. 14

. .  10 

.... 9 

7 .8  

... 9 

... 9 

... 9 

.. 5 

..4 

20 

10 

. 7



5 .6

United States ex rel. Long v. SCS Bus & Tech. Institute, Inc.,
173 F.3d 870 (D.C. Cir. 1999).............................................................

United States National Bank v. Independent Insurance Agents o f  America Inc 
508 U.S. 439 (1993)......................................................................

Webb v. District o f  Columbia,
146 F.3d 964 (D.C. Cir. 1998) .............................................................

West v. Gibson,
527 U.S. 212 (1999)........................................................................

Williams v. City o f  Valdosta,
689 F.2d 964 (11th Cir. 1982) ...............................................................

Wilson v. Pena,
79 F.3d 154 (D.C. Cir. 1996) ..................................................................

Zavislak v. U.S.,
29 Fed. Cl. 525 (Fed.Cl. 1993) ...............................................................

STATE CASES

Sisters o f  the Good Shepherd o f  the City o f  Washington v. District o f  Columbia 
746 A.2d 310 (D.C. 2000) ..................................................................... ’

FEDERAL STATUTES

5 U.S.C. Section 702 .............................................................

28 U.S.C. §1291 (1993) ....................................................................

42 U.S.C. §1981 ....................................................................

42 U.S.C. §198la ............................................................................

42 U.S.C. §2000e-2..............................................................

42 U.S.C. §2000e-3 .........................................

............ 7

.......... 19

...........9

.......20

...........9

...... 10

..........9

20

.........1

passim

passim

.... 5 ,7

.... 5 ,7

viii

42 U.S.C. §2000e-5
4, 5 ,8



OTHER AUTHORITIES

137 Cong. Rec. H9517 (Nov. 7, 1991) 

137 Cong. Rec. H9526 (Nov. 7, 1991) . 

137 Cong. Rec. S15471 (Oct. 30, 1991)

137 Cong. Rec. S15484 (Oct. 30, 1991)

137 Cong. Rec. S15485 (Oct. 30, 1991) .

Barbara Lindemann & Paul Grossman,
Employment Discrimination I.aw 1824 n.760 (3d ed. 1996)

IX



GLOSSARY

1991 Act Civil Rights Act o f 1991, Pub. L. 102-166 (1991), in particular 42 U.S.C 
Section 1981 a, as effective November 21, 1991

Deputy Fogg Plaintiff/Appellant Matthew F. Fogg

EEOC Equal Employment Opportunity Commission

MSPB Merit Systems Protection Board

Section 1981a 42 U.S.C. § 1981 a

Section 1981 42 U.S.C. §1981

Title VII Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e et seq

USMS United States Marshals Service

x



JURISDICTION

The NAACP Legal Defense & Educational Fund, Inc. (“LDF”) joins in the statement set 

forth in the Brief for Plaintiff-Appellant Matthew F. Fogg (“Brief for Plaintiff-Appellant Fogg”)

concerning the jurisdiction o f this Court over the district court's final orders pursuant to 28 

U.S.C. §1291 (1993).

STATUTES AND REGULATIONS

All applicable statutes are contained in the Brief for Plaintiff-Appellant Fogg.

STATEMENT OF FACTS;

LDF adopts the Statement of Facts set forth in Plaintiff-Appellant’s Brief. See Brief for 

Plaintiff-Appellant Fogg, at 4-10.

SUMMARY OF ARGUMENT

Deputy Matthew F. Fogg (“Deputy Fogg") was an exemplar}' United States Marshal who 

endured racial discrimination within a U.S. Marshals Service (“USMS”) that the district court judge 

himself recognized as having “labored in substantial racial turmoil for at least a decade, and in which 

racial identities are keenly felt. App. A49. Recognizing the racially-motivated abuse that Deputy 

Fogg sustained, the jury awarded him four million dollars ($4.000.0000.00) in compensatory 

damages. App. A824. which the district court judge remitted to three hundred thousand dollars 

($300,000.00) pursuant to a statutory cap set forth in the Civil Rights Act o f 1991, 42 U S C 

§ 1981 a. App. A48-49 This cap limits the award of compensator}' and punitive damages “[i]n an



action brought by a complaining party . . .  against a respondent who engaged in unlawful intentional 

discrimination, and provided that the complaining party cannot recover under section 1981." to an 

amount determined according to the size o f the employer, in the case of the USMS. $300,000. See 

42U.S.C. §1981a(b)(3)(D); App. A48 n.3. Relying on the Sixth Circuit decision in Hudson v. Reno. 

130 F.3d 1193 (6th Cir. 1997), and a few district court cases, the court determined that the 

“$300,000.00 compensatory cap applies regardless of the number of specific claims a plaintiff 

asserts.’' App. A49, and declined to award Deputy Fogg $300,000 for each cause of action he had 

wen in the ju ry’s binding verdict on his post-1991 claims, id.

The district court’s interpretation of the damages cap in § 1981 a as applying to Deputy Fogg's 

entire lawsuit, rather than to each of his causes of action, was wrong as a matter o f law . The court 

failed to discern the ambiguity in the word ‘•action" in Section 1981a(a)(l) which on its face and 

within the broader context of 1981a could mean “cause of action’’ or “lawsuit.’’ Because both 

interpretations are plausible, the court should have considered the legislative history of the 1991 

Civil Rights Act. including the Section-bv-Section Analysis offered by “one of the chief sponsors 

and floor managers of the 1991 Act’’1 in the House of Representatives and an interpretive 

memorandum “intended to reflect the intent of all of the original co-sponsors’’ o f the legislation in 

the Senate, both of which clearly state that such cap is to be applied per cause of action.2 Such 

interpretation is also consistent w'ith one of the broader goals of Title VII generally, which is to

' Barbara Lindemann & Paul Grossman. Employment Discrimination Law 1824 n 260
(3d ed. 1996).

See 137 CONG. Rec. S15484 (daily ed. Oct. 30, 1991); 137 Cong. Rec. H9517 H9526- 
9527 (daily ed. Nov. 7. 1991).

->



ensure that victims o f racial discrimination are made whole and to deter employers from engaging 

in discriminatory employment practices. See McKennon v. Nashville Banner Pub. Co., 513 U.S. 

352, 358 (1995) (Congress designed the remedial measures in Title VII to spur employers to 

eliminate discriminatory practices and to “compensate] for injuries caused by the prohibited 

discrimination”); Ogden v. Wax Works, Inc., 29 F.Supp.2d 1003, 1007 (N.D.Iowa 1998) (“Title VII. 

like other federal anti-discrimination laws, supplies broad legal and equitable remedies to make 

successful plaintiffs whole.”).

The court further substantially denied the equitable relief requested by Deputy Fogg, 

including front pay or reinstatement and a backpay award reflecting the pay level he would have 

achieved in ihe absence of racial discrimination. See App. A52-53. In so doing, the court 

disregarded the jury’s binding verdict that Deputy Fogg had been discharged for racially 

discriminator},' reasons, App. A823, and, had he not been so discharged, that he would have attained 

a GS-15 pay level. App. A824. This was wrong as a matter of law and the court's finding in this 

regard is subject to de novo review by this Court. See Las Vegas v. Lujan, 891 F.2d 927, 931 

(D.C.Cir. 1989).

ARGUMENT

I. THE SECTION 1981A CAP ON COMPENSATORY AND PUNITIVE DAMAGES 
SHOULD BE APPLIED PER CAUSE OF ACTION RATHER THAN PER LAWSUIT

Deputy Fogg led a remarkable career with the U.S. Marshal Service, but endured withering

racial discrimination that eventually resulted in his racially-motivated discharge in September, 1995.

App. A821-24. Finding for Deputy Fogg on all but one of his claims against the USMS, the jury

3



awarded him $4,000,000.00 in compensatory damages. Id. at A824. The district court remitted this 

award to $300,000.00 pursuant to 42 U.S.C. Sec. 1981a(b)(3)(D). Id. at A48-49. In remitting his 

award, the court stated that the damages cap in Section 1981a did not permit Deputy Fogg to recover 

up to the cap for each o f his causes o f action but rather was a single cap applicable to his entire 

lawsuit. Id. The court did not elaborate on its reasoning but cited the Sixth Circuit's decision in 

Hudson v. Reno and a handful of district court cases that follow Hudson. Id. at A49.

LDF urges this Court not to adopt the Sixth Circuit’s interpretation o f the damages cap as 

it was applied in Hudson? As discussed below, the Hudson court failed to discern the ambiguity in 

the term “action’ in Section 1981a(a)(l), which on its face could mean “cause of action” or 

“lawsuit.” Both interpretations are also plausible in view of the broader language of Section 

1981a(a)(l), which recognizes that parties may bring multiple causes of action under Title VII and

precludes double recovery based on such different causes o f action. See 42 U.S.C. Section 

1981a(a)(l).

A. The Language in Section 1981a Does Not Specify Whether the Cap Is to Be
Applied Per Cause of Action Or Per Lawsuit and Both Interpretations Are 
Reasonable

Section 198 la(a)(l) provides:

In an action brought by a complaining party under section 706 or 717 of the 
Civil Rights Act of 1964 (42 U.S.C. 2000e-5) [42 U.S.C.A. §§ 2000e-5 or 
2000e-16] against a respondent who engaged in unlawful intentional

n , , n ^ 0 0 ^ ir “ ll0 W ed /M '0'’ See Batyv. 172 F.3d
1000 0 Cir' " 9 ’ Smith v ChlcaS° Sch Reform Bd o f  Trustees. 165 F.3d 1142 (7th Cir.

). However, because Hudson is not persuasive, for reasons discussed further below, this 
Court should decline to follow these decisions.

4



discrimination (not an employment practice that is unlawful because o f its 
disparate impact) prohibited under section 703, 704, or 717 of the Act (42 
U.S.C. 2000e-2 or2000e-3) [42 U.S.C.A. §§ 2000e-2,2000e-3, or2000e-16], 
and provided that the complaining party cannot recover under section 1981 
o f this title, the complaining party may recover compensatory and punitive 
damages as allowed in subsection (b) o f this section, in addition to any relief 
authorized by section 706(g) of the Civil Rights Act of 1964 [42 U.S.C.A. § 
2000e-5(g)], from the respondent.

42 U.S.C. Section 1981a.

Subsection (b)(3) further states in relevant part:

The sum of the amount o f compensatory damages awarded under this section 
for future pecuniary losses, emotional pain, suffering, inconvenience, mental 
anguish, loss of enjoyment of life, and other nonpecuniary losses, and the 
amount of punitive damages awarded under this section, shall not exceed, for 
each complaining party . . . $300,000.

The Hudson court concluded that Section 1981a was unambiguous. Interpreting “action” 

to refer to “all claims for relief alleged in a single lawsuit,” 130 F.3d 1193, 1200 (6th Cir. 1997) 

based on its purported ordinary meaning, id. at 1199, the court determined that it would apply the 

cap per lawsuit, id. at 1200. Yet, “action" is commonly used to mean either “cause of action” or 

lawsuit, and. contrary' to Hudson's conclusion, its meaning in this instance is not apparent from 

the face of the provision. See. e.g.. Sinito v. United States, 176 F.3d 512, 513 (D.C.Cir. 1999) 

(“While we disagree with the district court's conclusion that a FOIA cause o f  action can never 

survive the death of the original requestor, we remand for a consideration of whether Sinito’s son

qualifies under Rule 25(a) as a legal representative eligible to continue the action___That Congress

failed to include a specific clause in the statute providing that the action should survive the death of 

the original party does not necessarily mean that Congress intended the action to abate upon the 

party's death.") (emphasis added); United States ex rel. Long v. SCS Bus & Tech. Inst.. Inc.. 173

5



F'3d 870, 884 n. 16 (D.C. Cir. 1999) (“[A] qui tain suit under §3730(b) is no less a cause o f  action. 

and the relator is no less a party prosecuting that action. because the action is brought in the name 

o f the United States. ) (emphasis added); id. at 894 (“Another difficulty in applying Steel Co. here 

is that classifying the statutory question in an Eleventh Amendment case as a 'cause o f  action' or 

merits question is, though technically accurate, somewhat misleading. The determination of whether 

a particular action is properly asserted against a state is also a kind of logical prerequisite to the 

jurisdictional inquiry.”) (emphasis added); Kasap v. Folger Nolan Fleming & Douglas. Inc.. 166 

F.3d 1243. 1245 (D.C. Cir. 1999) (“The Federal Arbitration Act creates several federal causes o f  

action relating to arbitration agreements . . . including an action under §4 to compel arbitration . 

..”) (emphasis added); and Brown v. Brody, 199 F.3d 446, 454 (D.C. Cir. 1999) (“In Meritor, the 

Supreme Court recognized a cause o f  action for ‘hostile work environment’ sexual harassment in 

addition to the more traditional cause o f  action for so-called quid pro quo harassment. After Meritor, 

plaintiffs could maintain an action even in the absence of a tangible economic effect on employment 

• . ) (emphasis added). Action alone does not “convey an unambiguous intent,” City o f  Mesa

v. Federal Energy Regulatory Commission. 993 F.2d 888. 893 (D.C. Cir. 1993), to apply the cap to 

a complaining party's lawsuit rather than to each claim brought by such complaining party. Absent 

such clearly expressed congressional intent on the precise question at hand,” id. at 892-93. City o f

Mesa. 993 F.2d at 892-93 (emphasis in original), “action” could just as easily denote “cause of 

action.”

However, in determining whether ambiguity exists, the court should not confine itself to the 

contested term alone but should examine the term in light of the statute’s broader language. “The 

plainness or ambiguity of statutory language is determined by reference to the language itself, the

6



specific context in which that language is used, and the broader context o f the statute as a whole.”

R° binSOn v‘ Shel1 0 il C° ’ 519 U-S- 337, 341 (1997). Although a word may initially appear 

unambiguous, a contextual analysis may suggest different interpretations. See id. (“At first blush, 

the term ‘employees’ in § 704(a) would seem to refer to those having an existing employment 

relationship with the employer in question.”); U.S. v. Herbert, 860 F.2d 620. 621 (5th Cir. 1988) 

(finding ambiguity in the term “three previous convictions,” although “[o]n its face, [such term] does 

not appear ambiguous”). Courts repeatedly “have stressed that ‘in expounding a statute, [one] must 

not be guided by a single sentence or member of a sentence, but [must] look to the provisions of the 

whole law, and to its object and policy.’” United States N a t’l Bank v. Independent Ins. Agents o f  

Am.. Inc., 508 U.S. 439, 455 (1993) (,quoting United States v. Heirs o f  Boisdore, 49 U.S. 113 

(1849)); see also Martini v. Federal National Mortgage Ass 'n, et al., 178 F.3d 1336, 1345 (D.C. Cir 

1999) (court must look "not only ‘to the particular statutory language at issue,’ but also to ‘the

language and design of the statute as a whole.'”) {quoting K Mart Corp. v. Cartier, Inc., 486 U.S.

281.291 (1988)).

An interpretation of “action" as meaning "cause of action” is consistent with the broader 

language of Section 1981a which concerns different kinds of actions or claims that a “complaining 

party could bring under the Civil Rights Act of 1964 pursuant to 42 U.S.C. §§ 2000e-2 or 2000e-3, 

■see 42 U.S.C. § 198la(a)(l) (describing "unlawful intentional discrimination” that is “prohibited 

under section 703. 704. or 717 of the [Civil Rights Act of 1964] (42 U.S.C. 2000e-2 or 2000e-3)”), 

and/or under Section 1981, see id  (permitting recovery "provided that the complaining party cannot

7



recover under section 1981 of this title . . See also Dunning v. General Electric Co.. 892 F. 

Supp. 1424, 1428 (M.D. Ala. 1995) (“The structure o f § 1981a is informative. Subsection (a )( l) of 

§ 1981 a . . .  concerns civil rights claims generally.”). One may also infer that “action” means “cause 

of action” in Section 198 la(a)(l) by referring to Section 198 la(a)(3) and Section 198 la(b)(3). which 

use “case,’ instead of “action,” synonymously with “lawsuit,” and from other sections of the Civil 

Rights Act of 1964, which expressly refer to “civil action” as opposed to "action,” see, e.g.. 42 

U.S.C. § 2000e-5(f) (discussing “civil action” by EEOC or Attorney General or “person 

aggrieved”).5 Considering Section 1981a in its entirety, it is plausible that Congress intended a 

different meaning of “action” — specifically, “cause o f action” or “claim” —  than the meaning 

ascribed by the Hudson court and apparently followed by the- district court below.6 See EEOC v.

Courts have interpreted the "cannot recover” language to ensure that a complaining 
party who has brought causes of action under both section 1981 and section 1981A does not 
recover duplicative damage awards for the same conduct. See Bradshaw v. Unix o f  Maine Svs 
870 F. Supp. 406, 407-08 (D. Me. 1994) (citing cases). This is also consistent with the " 
provision s legislative history. See 137 Cong. Rec . H9526 (Remarks o f Representative 
Edwards) (“By limiting awards under Section 1977A [42 U.S.C. § 1981a] to those situations 
where the complaining party 'cannot recover under Section 1977 of the revised statutes (42 
U.S.C. 1981)'[,] Section 1977A simply assures that there will be no double recovery for the same 
harm, i.e.. a party cannot recover for the same cause of action for race discrimination under both 
statutes . . . .  No party is under any obligation to proceed under one or the other statute or to 
waive any cause of action under either statute as a condition of proceeding.”).

âct ^ at a Person aggrieved can bring a “civil action” indicates that the use of 
civil in 42 U.S.C. § 2000e-5(f) is not intended to distinguish such lawsuit from a “criminal” 

lawsuit. Obviously, a private person may not file a criminal case against a party. See Black’s 
Law Dictionary 28 (6th ed. 1990) (“civil actions . . .  lie in behalf of persons to enforce their * 
rights or obtain redress of wrongs in their relation to individuals” and “criminal actions are 
instituted by the sovereign power (i.e. government), for the purpose of punishing or preventing 
orienses against the public”).

6 Nor is it dispositive that the statute at times uses “action” to refer to a case or lawsuit.
See Robinson. 519 U.S. at 343 (“Of course, there are sections of Title VII where, in context, use

8



Monclova Township, 920 F.2d 360,363 (6th Cir. 1990) {citingKelly v. Wauconda Park District. 801 

F2d 269> 271 (7th Cir. 1986) (ambiguity exists where parties present “reasonable, but conflicting, 

interpretations.”); Monterey Coal Co. v. Federal Mine Safety & Health Review Comm ’n, 743 F.2d 

589, 591 (7th Cir. 1984) (“The phrase Congress did use is arguably subject to two interpretations.”); 

Sehan v. Block, et a l,  626 F. Supp. 545, 549 (S.D.Ind. 1985) (describing statutory provision as 

unclear because the statute does not define particular phrase and such phrase is “subject to two 

conflicting interpretations”); Sisters o f  the Good Shepherd o f  the City o f  Washington v. District o f  

Columbia, 746 A.2d 310. 313 (D.C. 2000) (language is “ambiguous in that it does net resolve 

definitively by its plain language” that one particular interpretation should prevail over another). 

Under this interpretation, damages would be awarded for each complaining party on a per claim 

basis.* 7 Because both interpretations of “action” are reasonable, the district court should have

of the term 'employee' refers unambiguously to a current employee . . .. But those examples at 
most demonstrate that the term 'employees' may have a plain meaning in the context of a
particular section —  not that the term has the same meaning in all other sections and in all other
contexts.’ j.

7 This interpretation also is consistent with the position taken bv the EEOC in an amicus 
brief filed in a case on appeal to the Eleventh Circuit in 1997. See Brief of the EEOC as Amicus 
C uriae In Support of the Plaintiff-Appeliee/Cross-Appellant at 14-22, Reynolds v CSX 
Transportation. Inc., 115 F.3d 860 (11- Cir. 1997). As the agency charged with enforcing Title 
VII and its amendments, the EEOC's reasonable interpretation of ambiguous statutory language 
is entitled to deference. See EEOC v. Commercial Office Products Co., 486 U.S. 107, 115 
(1988) ("But it is axiomatic that the EEOC's interpretation of Title VII, for which it has primary 
enforcement responsibility, need not be the best one by grammatical or any other standards. 
Rather, the EEOC s interpretation of ambiguous language need only be reasonable to be entitled 
to deference”). Had Deputy Fogg's claims been decided before the EEOC in an administrative 
proceeding, the U.S. Marshal Service, as a federal agency, would have been bound by the 
EEOC's damages award. See West v Gibson, 527 U.S. 212, 214 (1999) (concluding that EEOC 
possesses the legal authority to require federal agencies to pay compensatory damages when 

they discriminate in employment in violation of Title VII of the Civil Rights Act o f 1964 ”) 
(citation omitted); Wilson v. Pena. 79 F.3d 154, 166 (D.C. Cir. 1996) (“The EEOC’s original

9



examined the legislative history o f Section 1981a in deciding its proper meaning. “When the

legislative history is an aid to interpreting the statute . . .  it is an error to disregard it no matter how

•superficially clear’ the words o f the statute are.” Purer v. U.S., 1988 U.S. Dist. LEXIS 16562. No.

CV 87-3136 *5 (C.D.Ca. 1988) (citing Train v. Colorado Pub. lnt. Research Group. 427 U.S. 1 

(1976)).

B. The Legislative History of the Civil Rights Act of 1991 Clearly Supports a Per 
Cause of Action Interpretation8

UTien a statute “can be read in more than one way, or when a statute is ambiguous on its face, 

courts will resort to the legislative history to provide a meaning consistent with what Congress 

intended.” Zavislakv. US., 29 Fed. Cl. 525, 529 (Fed.Cl. 1993); see also Blum v. Stenson. 465 U.S. 

886 (1984) (relying on legislative history to interpret “reasonable fees” under 42 U.S.C. § 1988). 

The legislative history of the Civil Rights Act of 1991 clearly indicates that sponsors of the bill in

both houses of Congress intended the cap on damages to apply to each claim brought by each 

complaining party.

remedial order was binding on the agency, which had no choice but to carrv out the ‘ministerial’ 
function of calculating the amount of the aw ard”).

This interpretation is also consistent with the position taken by noted authority in the 
leld of employment discrimination law. See Lindemann, et al., supra note 1, at 1824 (in the 

context of Section 1981a, “[a] separate cap applies for each distinct claim brought by each 
complaining party. ’); id. at 1824 n.261 (“The respondent’s total exposure thus would be the 
product of the number of persons who join, the number o f  their distinct causes o f  action, and the 
amount of the cap.”) (emphasis added).

10



Key sponsors of this legislation were Representative Edwards in the House and Senators 

Danforth and Kennedy in the Senate. Just prior to the bill’s passage on October 309, the original 

Senate cosponsors introduced an interpretive memorandum intended to reflect their intent with 

respect to damages in cases of intentional discrimination. See 137 Cong. Rec. S I5484 (daily ed.

October 30, 1991). This memorandum unequivocally states that the damages caps are to be applied 

to each claim of each complaining party:

In addition to the above-cited restrictions, the following limitations 
also are placed on the damages available to each individual 
complaining party fo r  each cause o f  action brought under section 
1981 A: . . . .

The amount ofnonpecuniary damages, future pecuniary' damages and 
punitive damages shall not exceed . . . $300,000 for employers with 
more than 500 employees.

The expressed intention of the Senate cosponsors that the cap should apply per claim is also 

consistent with the Section-by-Section analysis offered on the floor of the House by Representative 

Edwards prior to the bill's passage. Edwards was Chair of the House Judiciary Subcommittee on 

Ci\il and Constitutional Rights that drafted the bill and a co-sponsor of the legislation. Cleveland, 

et al. v Runyon. 972 F. Supp. 1326, 1328-29 (D.Nev. 1997). He offered the interpretive 

memorandum to clarify differences in wording between the proposed legislation and an earlier 

House version of the bill. See 137 Cong. Rec . H9526 (daily ed. Nov. 7, 1991). Noting that 

monetary damages serve the "twin purposes of compensation and deterrence,”10 Edwards extolled

See 137 Cong. Rec. H9526 (daily ed. Nov. 7, 1991) (statement by Representative 
Edwards indicating that bill passed Senate on October 30, 1991).

A per lawsuit interpretation of the damages cap would encourage federal employers to 
drag out the investigation and conciliation process. Without any incentive to minimize the “cost”

11



monetary damages as being “necessary to encourage citizens to act as private attorneys general to 

enforce the law” and further observed:

Compensatory damages also raise the cost of an employer's engaging 
in intentional discrimination, thereby providing employers with 
additional incentives to prevent intentional discrimination in the 
workplace before it happens. Punitive damages serve the important 
purposes of punishing egregious discrimination, reinforcing the 
public policy against discrimination and adding to the deterrent value 
of a damages award.

Id. Following this, he stated: The sponsors acknowledge the limitations on damage awards in the 

legislation which apply to the damages available to each complaining party for each cause o f  action 

brought under Section 1981a. Id. at H9527. Again, this provides clear historical evidence of a key 

co-sponsor s pre-enactment understanding of Section 1981a that the limitations contemplated by the 

provision would apply per cause of action rather than per lawsuit. Cf. Cleveland, 972 F. Supp. at 

1 j 28 (citing Representative Edwards Section-by-Section analysis as “legislative historical evidence 

of the pre-enactment understanding of the House of Representatives of the meaning of 42 U.S.C. § 

1981a(b)(l) concerning the scope of governmental immunity from punitive damages). This 

interpretation also jibes with an overarching purpose of Section 1981a, which, as articulated by

of engaging in separate discriminatory practices that could occur, as here, over a lengthy period, 
federal agencies will simply lengthen the conciliation process to ensure that all claims that could 
otherwise be separately litigated will be brought within one lawsuit, consistent with res judicata  
principles barring “litigation of matters that were raised or should have been raised in an earlier 
suit,” McKinnon v. Blue Cross & Blue Shield o f  Alabama, 935 F.2d 1187, 1992 (11th Cir. 1991). 
Such a scheme would plainly frustrate Congress' intent to deter discrimination by encouraging 
employers to self-examine and to self-evaluate their employment practices and to endeavor to 
eliminate, so far as possible, the last vestiges' of discrimination." McKennon, 513 U S at 358 
{quoting Albemarle Paper Co v. Moody. 422 U.S. 405. 417-18 (1975)); see also Kolstadv  
American Dental Ass n. 527 U.S. _ ,  144 L.Ed.2d 494, 511 (1999).



Representative Edwards, is to increase the cost of discrimination and provide employers with 

stronger disincentives to discriminate.

The Hudson court was dismissive in its treatment of this legislative history and failed to give 

appropriate weight to the sponsors’ remarks. As here, the plaintiff in Hudson looked to the 

interpretive memorandum offered by the Senate cosponsors stating that the cap would be applied 

to each individual complaining party for each cause of action brought under section 1981 [a],’” 130 

F.3d at 1200-01, and to Representative Edwards’ Section-by-Section analysis which also supported 

a per claim interpretation, id  at 1201. The plaintiff also pointed to legislative histoiy conclusively 

establishing that the “for each complaining party” language in Section 1981 a(b)(3) was added at the 

last minute by Senators Danforth, Kennedy, and Hatch to clarify that each complaining party could 

recover damages up to the designated limit so that individual parties in a multi-party proceeding 

would not have to split a capped award among themselves. Id. at 1200.

The court rejected these arguments, but. in so doing, relied on a cursory analysis o f the 

legislative history that should not withstand this Court’s scrutiny. First, the court dismissed 

plaintiffs argument concerning the last minute adoption of the “for each complaining party” 

language. Curiously, the court cites a section-by-section analysis produced by the Bush

Administration — seven months prior to the bill's passage in both houses o f Congress__for a

different version of the bill which President Bush vetoed. Id. at 1200. This analysis certainly is not 

dispositive o{legislative intent; nor does it necessarily reveal the President’s intent as to the bill that 

eventually passed. See. e.g.,Petittiv. New England Telephone & Telegraph, 1992 U.S. Dist. LEXIS 

18112. No. 8^-3951 *10 (D.Mass. 1992) (“Thus, a conclusion of prospective application does not 

inevitably follow from the President's veto of a bill that contained retroactivity language and his

13



signature o f a bill that did not.”); id. at *15 (observing that some “commentators are less charitable 

about the worth and propriety o f interpretive comments in signing statements). The Hudson court 

did not explain why an interpretive memorandum from the Administration for a different bill should 

carry more weight than a contemporaneous interpretation by the very sponsors of the legislation 

themselves. See Estate o f  Ceppi v. Commissioner o f  Internal Revenue, 698 F.2d 17. 20 ( I s1 Cir 

1988) (deferring to contemporaneous legislative history).

The court also referred to a statement by Senator Kennedy purportedly suggesting a per 

lawsuit instead of a per claim cep: “The amount of most compensatory and all punitive damages that 

each individual complaining party can obtain is limited to . . . $300,000.” But this statement still 

begs the ultimate question, as it does not state that the cap is to be applied per lawsuit. Evidently, 

Kennedy did not intend a per lawsuit interpretation because he later joined the Senate cosponsors’ 

interpretive memorandum, see 137 Cong. Rec. S15485 (daily ed. Oct. 30, 1991) (remarks by 

Kennedy stating his “agreement with the views set forth in Senator Danforth's interpretive 

memorandum"), which expressly states that each individual party can recover up to the cap for each 

cause of action. 137 Cong. Reg. S15484 (daily ed. Oct. 30. 1991) (“In addition to the above-cited 

restrictions, the following limitations also are placed on the damages available to each individual 

complaining party for each cause of action brought under section 1981a .

Second, the court rejected the Senate cosponsors' interpretation as “taken out of context” in 

that "the Senators were simply making it clear that the §198la caps did not apply to §1981 claims 

so that an award for sex discrimination under § 1981a would not cap an award for race 

discrimination under § 1981.” Hudson. 130 F.3d at 1201. But this is simply wrong. Although the 

Interpretive Memorandum did discuss the Senators' intention not to "prevent a person from

14



challenging discrimination which causes demonstrably different harms under each of the statutes” 

by virtue o f the “cannot recover” language in Section 1981a. this discussion did not at all relate to 

the language relied upon by the Hudson plaintiff for her per claim interpretation. The placement o f 

the language concerning each individual complaining party’s recovery “for each cause of action” in 

the legislative history indicates that one had nothing to do with the other. The section discussina a 

party's ability to recover under different statutes for “different harms” is set wholly apart from the 

“per claim” language and is separated by another section that discusses the procedural aspects of 

filing m federal court and the EEOC’s investigation and conciliation functions. See 137 Cong. Rec. 

S I5484 (daily ed. Oct. 30, 1991).

Finally, the Hudson court rejected Representative Edwards’ Section-by-Section analysis as 

isolated remarks of a single member of Congress” and asserted that such remarks “should be given 

little weight. 130 F.3d at 1201. Again, the court failed to recognize the significance o f these 

remarks, which were offered not in isolation by any “single member of Congress,” but by the chair 

of the very subcommittee that drafted the legislation and who himself was a cosponsor o f the bill that 

eventually passed the House. See, e.g.. Cleveland, 972 F. Supp. at 1328-29 (identifying Edwards 

as “chairman of the House Judiciary' Subcommittee on Civil and Constitutional Rights, which had 

drafted the amendments to Title VII” and a “key sponsor[] of the legislation” and deferring to his 

remarks as legislative historical evidence of the pre-enactment understanding of the House of 

Representatives of the meaning of § 1981 a(b)( 1)").

Although statements by individual legislators may not be dispositive, “the sponsor’s or 

conferee s interpretation is ordinarily accorded substantial weight, at least when it is consistent with 

the statute and the rest of the legislative history.” Monterey Coal Co. v. Federal Mine Safety &

■ 1 5



Health Review Comm n, 743 F.2d 589,596 (7th Cir. 1984); ^  also Cleveland, 972 F. Supp. at 1329 

( Explanations by sponsors of a piece o f legislation deserve substantial weight in divining the 

meaning Congress intended for a federal statute.”); id. (deferring to statements made by 

Representative Edwards and Senator Kennedy on the floors o f the respective houses of Congress 

prior to enactment in interpreting whether punitive damages could be recovered against U.S. Postal 

Service and describing Edwards and Kennedy as “key sponsors” of the Civil Rights Act); c f  North 

Haven Bd. ofEduc. v. Bell, 456 U.S. 512, 526-27 (1982) (remarks made by “sponsor o f the language 

ultimately enacted are an authoritative guide to the statute’s construction”). Thus, the Hudson court 

erred in not giving appropriate weight to the remarks of these various legislators which provide clear 

evidence of a per claim interpretation.

Nor does the for each complaining party” language that appears in Section 1981 a(b)(3)

suggest legislative intent to apply the cap per lawsuit. Again, the relevant language provides

The sum of the amount of compensatory damages awarded under this 
section for future pecuniar}’ losses, emotional pain, suffering, 
inconvenience, mental anguish, loss of enjoyment of life, and other 
nonpecuniary losses, and the amount of punitive damages awarded 
under this section, shall not exceed, fo r  each complaining party'
S300.000.

42 U.S.C. § 1981 a(b)(3)(D). The legislative history of this language makes clear that it was adopted,

not to limit the damages available to each complaining party, but to ensure that each victim of

discrimination is properly compensated. According to Senator Kennedy, who offered the

amendment along with Senators Danforth and Hatch

this amendment is designed to make clear that the limitations on 
damage contained in section 5 apply to each complaining party, not 
to all parties in a single case. The amount of damages that a victim

16



can recover should not depend on whether that victim files her own 
lawsuit or joins with other similarly situated victims in a single case.
Rather, the amount of damages should depend on the injur}' the 
victim has suffered, subject to the caps. Thus amendment ensures that 
the remedy provided in the substitute is available to each individual 
who has been subjected to abuse.

See 137 CoNG- Rec . S15471 (daily ed. October 30, 1991); see also EEOC v. W&O. 213 F.3d 600. 

613-14 (11th Cir. 2000) Given the expressly stated purpose of the amendment adding “for each 

complaining party,” it would contravene legislative intent to interpret such language as doing 

anything other than expanding the remedy available to individual parties. See North Haven. 456 U.S.

at 526-27 (remarks made by “sponsor of the language ultimately enacted are an authoritative guide 

to the statute's construction”).

C. A Per Cause of Action Interpretation Is Consistent with Title VII’s Purpose of 
“Making Whole” Victims of Racial Discrimination

An interpretation of Section 1981a that applies the damages cap per lawsuit, rather than per 

claim, would contravene the spirit and purpose of Title VII. “[0]ne o f the central purposes o f Title 

VII is ‘to make persons whole for injuries suffered on account of unlawful employment 

discrimination. Franks v. Bowman Transportation Co., 424 U.S. 747, 763 (1975) (<quoting 

Albemarle Paper Co v. Moody, 422 U.S. 405 (1975)); ^  also Albemarle. 422 U.S. at 419 (the 

'"make whole' purpose of Title VII is made evident by the legislative history”). Consistent with this 

objective, [district courts must strive to grant 'the most complete relief possible’ in cases o f Title 

VII Vlolalions" Lander v. Lujan, 888 F.2d 153. 157 (D.C. Cir. 1987). Applying the statutory cap 

to each cause of action in a discrimination suit would more fully compensate victims o f such 

discrimination. “‘[T]he general rule is. that when a wrong has been done, and the law gives a

17



remedy, the compensation shall be equal to the injury .'"Albemarle, 422 U.S. at 418 (,quoting Wicker 

v. Hoppock, 18 L.Ed. 752 (1867)).

Deputy Fogg’s case is a prime example of the injustice that would result from a “per lawsuit” 

interpretation o f the Section 1981a cap. He labored under extraordinarily stressful circumstances 

within an agency that seemed determined for him to fail and that thwarted his attempts to pursue an 

administrative remedy for the racially hostile treatment he had to endure. Yet, despite these 

circumstances, he managed to lead an exemplary career, only to be discharged ultimately for reasons 

that the jury concluded were racially discriminatory. Fundamental tenets o f Title VII. basic

principles o f fairness, and common sense dictate that Deputy Fogg should be permitted to recover 

on a per claim basis.

II. THE DISTRICT COURT ERRED AS A MATTER OF LAW IN DISREGARDING 
THE JURY’S BINDING FACTUAL FINDINGS CONCERNING DEPUTY FOGG’S 
RACIALLY DISCRIMINATORY DISCHARGE

On April 28, 1998, the jury rendered a binding verdict on Deputy Fogg's post-1991 Act 

claims. App. A 819-29. Ruling in favor of Fogg on all but one o f his claims, the jury found that the 

termination of plaintiff s employment was racially discriminatory, App. A825, and that he would 

have been promoted to a GS-15 position but for the defendant’s conduct that violated Title VII, 

App. A826. Although these express findings are binding upon the district court, the court declined 

to follow the ju ry ’s verdict and instead ruled that the decision of the Merit Systems Protection Board 

"trumped the jury’s verdict. See App. A840 (”[i]f the Court of Appeals tells me that I have to 

disregard the decision of the Merit [Systems] Protection Board, or that it is trumped by the jury’s 

verdict, then we will revisit the issue [front pay and the level of back pay]”). Although a court’s

18



decision not to award equitable relief is reviewed for abuse of discretion, Webb v. District o f

Columbia, 146 F.3d 964, 976 (D.C. Cir. 1998), errors o f law are subject to de novo review, Lujan, 

891 F.2d at 931.

The district court erred when it declined to award to Deputy Fogg front pay or reinstatement, 

and a backpay award reflecting the pay level he would have achieved in the absence of racial 

discrimination. The district court erroneously viewed itself as bound by the decision of the Merit 

Systems Protection Board, rather than the findings of the jury that provided a basis for the award of 

front pay or reinstatement.

United States Supreme Court authority provides that, in cases involving both equitable and 

legal claims, the plaintiffs Seventh Amendment right to a jury trial requires that findings of the jury 

are binding on the Court as to the equitable claims. See Lytle v. HouseholdMfg, Inc., 494 U.S. 545, 

557 n.4 (1990) (“[T]he jury’s determination of legal and factual issues could not have been 

disregarded when the District Court considered [plaintiffs] equitable claims.”); Beacon Theaters 

V fVes'over, 359 U.S. 500. 510-1 1 (1959) ("This long-standing principle of equity dictates that only 

under the most imperative circumstances, circumstances which in view of the flexible procedures 

of the Federal Rules we cannot now anticipate, can the right to a jury trial o f legal issues be lost 

through prior determination of equitable claims."). This Supreme Court precedent has been followed 

by a number of Circuit Courts in factual settings similar to that presented here. See. e.g., Lincoln 

v Board o f  Regents o f  University System. 697 F.2d 928, 934 (11lh Cir. 1983) (“[W]hen a party has 

a right to a jury trial on an issue involved in a legal claim, the judge is of course bound by the jury’s 

determination of that issue as it affects his disposition of an accompanying equitable claim.”); In re 

Lem s  v. Sears. Roebuck & Co.. 845 F.2d 624, 630 (6th Cir. 1988)(“In the context of employment

19



discrimination cases, it is well-settled that a jury’s findings o f discrimination are binding on a court 

considering reinstatement.”); Gibson v. Mohawk Rubber Co., 695 F.2d 1093, 1101 (8th Cir 198'>) 

(“In the absence of exceptional circumstances, the jury verdict in favor o f the plaintiff on the issue 

of age discrimination is res judicata  for the purposes o f the equitable claim of reinstatement.”); 

Williams v■ City o f  Valdosta, 689 F.2d 964, 9 7 6 (1 1 -Cir. 1982) (“[A]ll findings necessarily made 

by the jury in awarding the verdict to [the plaintiff] are binding on the parties as well as on the trial 

court.”); Song v. Ives Laboratories, Inc., 957 F.2d 1041 (2d Cir. 1992) (“It is clear that a judge 

Sltt,ng at efImtF ina>' not render a verdict which is inconsistent with that o f a jury sitting at lav. on 

a claim involving the same essential elements. ’); Lindsey v. American Cast Iron Pipe Co. ,810 F.2d 

1094, 1098 (11th Cir. 1987) (“It is well settled that the ‘court may not make findings ‘contrary or 

inconsistent with the jury s resolution . . of that same issue as implicitly reflected in its general

verdict . . on the damages claim. ) (quoting Craft v. Board o f  Trustees o f  the Univ. o f  Illinois, 793 

F.2d 140. 143 (7th Cir. 1986)).

Here, the district court, exercising its equity jurisdiction over the plaintiffs Civil Service 

Reform Act" claims, granted judgment to the defendant after conducting a limited review under the 

Administrative Procedure Act. App. A90-108. The Court did so even prior to the trial of the Title 

VII claims before the jury. App. A 13. However, all parties recognized that the Court's decision on 

the Civil Service Reform Act claim did not obviate the need for the jury ’s determination as to the 

lawfulness of the termination under Title VII. App. A94-95, A107. To have done so would have

Proceedings under the Civil Service Reform Act are equitable in nature. 5 U.S.C 
Section 702; see. e.g., Kraemer-Kat: v L'.S. Public Health Service, 872 F.Supp. 1235 P 3 8  
(S.D.N.Y. 1994), a ff  d. 71 F.3d 404 (2d Cir. 1995).

20



been contrary to plaintiffs right to a de novo hearing on his race discrimination claims. Congress 

has provided for a de novo hearing in the district court on a federal employee’s Title VII claims, even 

when plaintiff raises claims under the Civil Service Reform Act. Hayes v. United States Government 

Printing Office, 684 F.2d 137,140 (D.C. Cir. 1982) (Legislative history o f the Civil Service Reform

Act made clear that Congress intended “to preserve ‘the existing rights of employees to trial de 

novo’ in discrimination cases.”)

The limited nature of the decision o f the MSPB is, then, a separate basis to conclude that the 

district court's reliance upon that decision to limit the scope of Title VII relief was erroneous T V  

MSPB did not consider the issues of race discrimination that were before the jury. App. A907-920. 

Most particularly, that decision did not consider such questions as 1) whether or not the order to 

report for a fitness-for-duty exam was racially motivated and 2) whether p lain tiffs subsequent 

discharge for ‘-insubordination” was racially discriminatory. Id. These were among the factual 

issues that were decided by the jury in plaintiff s favor. App. A825. As to Title VII questions, the

MSPB considered, only briefly, whether the discharge of plaintiff was in retaliation for his protected 

activity. App. A.918-19.

The decision of the MSPB under the Civil Service Reform Act is properly viewed as 

providing no more than that, i f  the jury  were to find  an absence o f  discrimination, the agency did not 

lack grounds for the discharge of the plaintiff. However, once the jury concluded, after hearing all 

the evidence regarding the asserted reasons for the agency’s actions as well as plaintiffs evidence 

as to race discrimination, that both the order that plaintiff should report for a fitness-for-duty exam, 

as well as his subsequent discharge were racially motivated, App. A825, relief from the 

discrimination was appropriate despite an alternative conclusion under the Civil Service Reform Act

21



that, had discrimination not occurred, the agency's decision was justified. To treat the MSPB 

decision under the Civil Service Reform Act as having precedence over the ju ry ’s Title VII verdict

is neither reasonable in light o f the broader issues reflected in the jury verdict nor consistent with 

Beacon Theaters and its progeny.

CONCLUSION

For all of the aforementioned reasons, LDF as amicus curiae urges th:s court f.-> find tha* the 

statutory cap on damages under Section 1981a should be applied to each cause o f action brought by 

a complaining party. LDF further urges that this case be remanded to the district court for 

reconsideration o f Deputy Fogg’s motion for equitable relief consistent with the jury’s binding 

verdict regarding post-1991 Act discrimination.

22



Respectfully submitted.

T h e o d o r e  M  S h a w  

N o r m a n  J C h a c h k i n  

C h a r l e s  S t e p h e n  R a l s t o n  

R o b e r t  H  S t r o u p  

E l i s e  C' B o d d i e  

N A A C P  L e g a l  D e f e n s e  

&  E d u c a t i o n a l  F u n d .  I n c  

qq H u d s o n  S t r e e t .  S u i t e  l o O O  

N e w  Y o r k .  N e w  Y o r k  1 0 0 1 3 - 2 8 9 7  

( 2 1 2 ) 9 6 5 - 2 2 0 0



C E R T IF IC A T E  O F  SF .R V IC F

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Hnef  o f A nncus ( uriae NAA ( 'P Legal Defense and Educational Fund Inc. In Support o f  Plaint, ff- 

Appellant Matthew F. F oggv i a  U P S  N e x t  D a y  .Air.  w i t h  a d e q u a t e  p o s t a g e  a f f i x e d  t h e r e t o ,  p r o p e r l y  

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C E R T IF IC A T E  O F  C O M P I J A N f F

Pursuant to D.C. Cir. R. 28(d)(1), the undersigned certifies that this brief contains 8260 

words.

ELISE C. BODDIE