Alexander v. Stone Brief for Appellant

    No. 92-5302

IN THE UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT

ANTONITA ALEXANDER, 

Appellant,

v.

M.P.W. STONE, Secretary of the Army, 

Appellee.

On Appeal from the United States 
District Court for the District of New Jersey

BRIEF FOR APPELLANT

JULIUS L. CHAMBERS 
CHARLES STEPHEN RALSTON 
MARINA HSIEH

NAACP Legal Defense and 
Educational Fund, Inc.

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

LANIER E. WILLIAMS 
P.O. Box 28828 
Philadelphia, PA 19151 
(215) 747-1318

Attorneys for Appellant



TABLE OF CONTENTS

STATEMENT OF JURISDICTION ..................................................................................  1

STATEMENT OF ISSU E S...................................................................................................  1

STATEMENT OF FACTS, CASE, AND PROCEEDINGS .........................................  2

STANDARD OF REVIEW ................................................................................................. 5

ARGUMENT ......................................................................................................................... 5

I. BOTH THE PLAIN LANGUAGE AND THE PURPOSE OF TITLE
VII DICTATE THAT A PROPERLY EXHAUSTED CLAIM FOR 
ATTORNEY’S FEES MAY BE BROUGHT BEFORE A DISTRICT 
COURT..............................................................................................................  5

A. The Plain Text Of Title VII’s Fee Statute Creates A Cause of
Action For A Claim Of Attorney’s Fees In A District Court. . . .  5

B. Title VII’s Broad Purpose Requires Inclusion Of Attorney’s
Fees As Part Of Complete Relief Under Title VII.........................  8

II. THE SUPREME COURTS HOLDING IN CAREY REQUIRES 
THAT PLAINTIFFS WITH COMPLAINTS THAT ARE SOLELY 
FOR FEES UNDER TITLE VII BE ABLE TO OBTAIN RELIEF
IN DISTRICT COURTS............................................................................... 12

A. The Carey Court Decided The Precise Issue In This Case. . . .  12

B. The Scope Of § 1988, A Different Fee-Shifting Statute, Does 
Not Affect Carey’s Construction Of The Fee-Shifting Scheme
Of Title VII.......................................................................................... 16

C. Application Of The Handicapped Children’s Protection Act’s 
Fee-Shifting Provision Illustrates The Differences Between
§ 1988 and Title VII’s Fee Provision...............................................  19

III. A RULING DENYING TITLE VII COMPLAINTS SEEKING
SOLELY ATTORNEY’S FEES WOULD CONFLICT WITH THE 
DECISIONS OF OTHER CIRCUITS AND THIS C O U R T ............... 22

CONCLUSION ....................................................................................................................  27

CERTIFICATION OF BAR MEMBERSHIP

CERTIFICATE OF SERVICE



TABLE OF AUTHORITIES

CASES
Pages:

Albermarle Paper Co. v. Moody,
422 U.S. 405 (1975) ...................................................................................................  8

Alexander v. Marsh,
No. 89-5300 (GEB) ...................................................................................................  2

Burpee v. Manchester School District,
661 F. Supp. 731 (D.N.H. 1987).............................................................................  20

Carey v. New York Gaslight Club, Inc.,
598 F.2d 1253 (2d Cir. 1 9 7 9 )..................................................................................  14

Chang v. Board of Educ. of Glen Ridge Township,
685 F. Supp. 96 (D.N.J. 1988) ................................................................................ 20

Christiansburg Garment Co. v. EEOC,
434 U.S. 412 (1978) ..............................................................................................  8, 9

Counsel v. Dow,
849 F.2d 731 (2d Cir. 1988) ..................................................................................  21

Duane M. v. Orleans Parish School Bd.,
861 F.2d 115 (5th Cir. 1988) ..................................................................................  21

Eggers v. Bullit County School District,
854 F.2d 892 (6th Cir. 1988) ................... .......................................................... 20, 21

E v 'i  5 v. Jeff D.,
475 U.S. 717 (1986) ................................................................................................. 11

Fischer v. Adams,
572 F.2d 406 (1st Cir. 1978)................................................................................ 15, 23

Johnson v. United States,
554 F.2d 632 (4th Cir. 1977) ..................................................................................  15

Jones v. American State Bank,
857 F.2d 494 (8th Cir. 1988) ......................................................................  22, 23, 26

Kean v. M.P.W. Stone, Secretary of the Army,
926 F.2d 276 (3d Cir. 1991) ......................................................................  24, 25, 26

Latino Project, Inc. v. City of Camden,
701 F.2d 262 (3d Cir. 1983)................................................................................ 19, 23

Mrrtinez v. Orr,
738 F.2d 1107 (10th Cir. 1984)..................................................................................  7

ii



McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) ...................................................................................................  7

Melkonyan v. Sullivan,
59 U.S.L.W. 4612 (June 10, 1991) ......................................................................... 26

Moore v. District of Columbia,
907 F.2d 165 (D.C. Cir. 1990) ................................................................................ 20

New York Gaslight Club, Inc. v. Carey,
447 U.S. 54 (1980) ............................................................................................ passim

Newman v. Piggie Park Enterprises,
390 U.S. 400 (1968) ...................................................................................................  8

North Carolina Dep’t of Transportation v. Crest Street 
Community Council, Inc.,
479 U.S. 6 (1986) .................................................................................................passim

Parker v. Califano,
561 F.2d 320 (D.C. Cir. 1977) .................................................................... 11, 12, 15

Prescott v. Palos Verdes Peninsula Unified Sch.,
659 F. Supp. 921 (C.D. Cal. 1987) ......................................................................  20

Seibel v. Lehman,
No. H-86-355, 1987 WL 60304 (D. Conn. Jan. 13,
1987) ......................................................................................................................... 25

Sinclair v. Soniform, Inc.,
935 F.2d 599 (3d Cir. 1991) ..................................................................................... 5

Slade v. United States P^c.al Service,
952 F.2d 357 (10th Cir. 1991) .................................................................... 23, 24, 26

Sullivan v. Hudson,
490 U.S. 877 (1989) ........................................................................  9, 10, 18, 19, 26

Webb v. Board of Ed. of Dyer County,
471 U.S. 234 (1985) ................................................................................................. 18

Wood v. Reagan,
622 F. Supp. 399 (E.D. Pa. 1985) ....................................................................  25, 26

i n



STATUTES

5 U.S.C. § 7701(g) .............................................................................................................  24

Handicapped Children’s Protection Act,
20 U.S.C. § 1415(e)(4)(B) ................................................................................ 20, 22

28 U.S.C. § 1291 ....................................................................................................................  1

Equal Access to Justice Act,
28 U.S.C. § 2412(d) ............................................................................................ 10, 18

42 U.S.C. §§ 1331 and 1343 ................................................................................................. 1

42 U.S.C. § 1983 ....................................................................................................................  18

Civil Rights Attorney’s Fees Awards Act of 1976,
42 U.S.C. § 1988 ..............................................................................................  passim

Title VII, 42 U.S.C. § 2000e-5 ............................................................................................  6

42 U.S.C. § 2000e-5(f)(3) ...................................................................................................  1, 7

42 U.S.C. § 2000e-5(g) ........................................................................................................  7, 8

42 U.S.C. § 2000e-5(j)..........................................................................................................  1, 7

42 U.S.C. § 2000e-5(k) ................................................................................................. passim

42 U.S.C. § 2000e-16(d) ...................................................................................................  1, 6

OTHER

Federal Rule of Civil Procedure 56 .......................................................................................  4

Federal Rule of Civil Procedure 59(e) ..................................................................................  4

IV



STATEMENT OF JURISDICTION

This appeal is taken from the district court’s Order entered May 5, 1992 denying 

reconsideration of its dismissal of Appellant Antonita Alexander’s complaint. Ms. 

Alexander filed that complaint in the District Court for New Jersey, Trenton Division, 

seeking relief under The Civil Rights Act of 1964, Title VII, 42 U.S.C. § 2000e et seq. (1981 

& West Supp. 1992)("Title VII"), and alleging jurisdiction under 42 U.S.C. §§ 1331 and 

1343. The district court had federal question jurisdiction over this matter as specified in 

42 U.S.C. § 2000e-5(f)(3), applicable to actions regarding employment by the federal 

government as provided in 42 U.S.C. § 2000e-16(d).

The district court’s Order dismissing the complaint was entered on March 5, 1992, 

App. 26, and the district court’s Memorandum and Order denying Ms. Alexander’s motion 

for reconsideration of the Order of March 5, 1992 was entered on May 5, 1992 App. 27. 

That decision is a final judgment from which Ms. Alexander made this timely appeal, in 

accordance with 42 U.S.C. § 2000e-5(j), applicable to actions regarding employment by the 

federal government as provided in 42 U.S.C. §2000e-16(d), and under 28 U.S.C. § 1291.

STATEMENT OF ISSUES

The issue presented on this appeal is whether a federal district court may award 

attorney’s fees to a plaintiff whose complaint seeks solely attorney’s fees pursuant to Title 

VITs attorney’s fee provision at 42 U.S.C. § 2000e-5(k).

1



STATEMENT OF FACTS, CASE, AND PROCEEDINGS

When the events began that led to this federal action, Appellant Antonita Alexander 

was employed as a Budget Officer by the Department of the Army, under Appellee 

Secretary of the Army M.P.W. Stone. In February 1989 she filed the first of a series of 

administrative complaints. Her complaint, later supplemented, alleged that management 

officials in the Army had discriminated against her because of her race (black), sex 

(female), age (55), and in reprisal for her role as Vice-Chairman of a widely-publicized Fort 

Dix Equal Employment Opportunity Review Panel. The discriminatory actions that she 

alleged included involuntary reassignment from Budget Officer to another management 

position, denial of a promotion, and denial of an earned award. The United States Army 

Civilian Appellate Review Agency ("USACARA") investigated Ms. Alexander’s complaint, 

finding that the involuntary reassignment was harmful error in violation of Army 

regulations. In the meantime, Ms. Alexander filed a second complaint alleging further 

discrimination and unlawful acts, and sought a Temporary Restraining Order in the federal 

District Court for New Jersey to enjoin acts of alleged retaliation. Alexander v. Marsh, No. 

89-5300 (GEB) (D.N.J.). That action was dismissed without prejudice on February 23, 

1990, when the parties stipulated to Ms. Alexander’s placement in a specific job. App. 24; 

2. In January 1990, Ms. Alexander filed a third administrative complaint alleging additional 

discriminatory retaliation. USACARA conducted another investigation into the allegations 

of the second and third complaints. In October 1990, it issued a report finding that Ms. 

Alexander had established a prima facie case of discrimination and that most of 

management’s proffered reasons were pretextual. It recommended that, inter alia, Ms. 

Alexander be restored to her original position as Budget Officer, or its equivalent, that 

record corrections be made, and that virtually all allegations of race, sex, age and retaliation 

charges be sustained.

2



After extended negotiations, the parties agreed in January 1991 to settle Ms. 

Alexander’s various complaints. A negotiated settlement addressed, in part, Ms. 

Alexander’s position, a merit pay increase, performance ratings, annual leave, and an 

unquantified award of attorney’s fees. Ms. Alexander, who retained counsel to represent 

her throughout these proceedings, then filed a timely request for reasonable attorney’s fees 

and costs.

On June 7, 1991 the Office of the Assistant Secretary of the Department of the 

Army issued to Ms. Alexander a notice of final action taken, signed by John H. Matthews, 

Deputy Director of Equal Employment Opportunity. The letter stated that the Army 

would reimburse Ms. Alexander less than one-fourth of the attorney’s fees that she had 

requested. It also stated that it "consititues [sic] the agency’s final decision on the 

attorney’s fees claim. If you are not satisfied with this decision, your appeal rights are as 

follows." App. 5. In a section entitled "Appeal Rights" the letter stated in part:

1. An appeal may be filed with the Equal Employment Opportunity 
Commission within 20 calendar days of receipt of this decision. The 20-day 
period for filing an appeal begins on the date of receipt of this decision. ...
The regulation providing for appeal rights is contained in Title 29 of the 
Code of Federal Regulations, a section of which is reproduced below ....

2. In lieu of an appeal to the Commission, a civil action may be filed 
in an appropriate United States District Court within 30 calendar days of 
receipt of the decision.

App. 5-6 (emphasis in original).

Ms. Alexander filed a timely complaint in the United States District Court for New 

Jersey seeking an award of reasonable attorney’s fees pursuant to 42 U.S.C. § 2000e el seq. 

App. 9. Secretary Stone filed an answer alleging, inter alia, defenses of lack of subject 

matter jurisdiction and assertion of claims for which relief cannot be granted. App. 15.

In a subsequent motion Secretary Stone argued that Ms. Alexander was not 

permitted to initiate a federal judicial action solely for the purpose of obtaining attorney’s 

fees. He urged that the complaint be dismissed for failure to state a claim or, alternatively,

3



that he be granted summary judgment. The motion continued with contentions that Ms. 

Alexander was not a "prevailing plaintiff' and that accord and satisfaction and/or statutes 

of limitations barred her claims.

By Order entered on March 5, 1992, Judge Anne E. Thompson granted defendant’s 

motion and dismissed the complaint under Federal Rule o f Civil Procedure 56. The Order 

referred to her oral opinion of March 2, 1992 that dismissed the complaint for failure to 

state a claim because it sought only fees. App. 26. The Court did not make findings or 

rule on any other legal or factual arguments raised by Secretary Stone as alternate grounds 

for dismissal or summary judgment; those issues are not at issue on appeal.

Upon Ms. Alexander’s timely motion to alter or amend the judgment under Federal 

Rule of Civil Procedure 59(e), the parties re-briefed the sole basis of the dismissal, that is, 

whether as a matter of law a complaint solely for attorney’s fees under the fee-shifting 

provision of Title VII states a claim for which the district court can award fees.

The district court denied the motion to amend the judgment. Declining to follow 

New York Gaslight Club, Inc. v. Carey, 447 U.S. 54 (1980), the court found that Ms. 

Alexander relied on "dicta" in Carey that was generally disapproved by North Carolina Dep’t 

of Transportation v. Crest S '"et Community Council, Inc., 479 U.S. 6 (1986). Crest held that 

a complaint solely for fees under a different fee-shifting statute, 42 U.S.C. § 1988, was not 

actionable. Starting from the text of 42 U.S.C. § 2000e-5(k), the district court held that in 

order to state a cause of action, a request for attorney’s fees under Title VII must be joined 

to a proceeding, in the same court, seeking other non-fee relief under Title VII. App. 27. 

The court acknowledged that its conclusion is contrary to that of a recent Eighth Circuit 

decision, but nevertheless resolved this "close" question by denying the claim and the 

motion to alter or amend.

Ms. Alexander filed a timely appeal with this Court. App. 1.

4



This case has not previously been before this Court. Alexander’s 1989 complaint 

and motion for a temporary restraining order before Judge Garrett Brown, Jr. was 

dismissed without prejudice by stipulation in 1990, and was not appealed. Counsel for Ms. 

Alexander are not aware of any previous or pending appeals arising out of this case or 

these proceedings.

STANDARD OF REVIEW

This Court’s review of a district court’s determination regarding subject matter 

jurisdiction is plenary. See, e.g., Sinclair v. Soniform, Inc., 935 F.2d 599 (3d Cir. 1991).

ARGUMENT

I. BOTH THE PLAIN LANGUAGE AND THE PURPOSE OF TITLE VII
DICTATE THAT A PROPERLY EXHAUSTED CLAIM FOR ATTORNEY’S
FEES MAY BE BROUGHT BEFORE A DISTRICT COURT.

A. The Plain Text Of Title VII’s Fee Cf itute Creates A Cause of 
Action For A Claim Of Attorney’s Fees In A District Court.

Ms. Alexander was a victim of race and sex discrimination and retaliation in her 

employment by the United States Army. She pursued administrative relief, as required by 

law. When those efforts did not result in full legal relief, she filed the present district court 

action. The plain language of Title VII of the Civil Rights Act of 1964, under which she 

filed her complaint, guarantees a federal forum for claimants who have exhausted their 

administrative requirements.

5



The relevant statutory prohibitions against employment discrimination are codified 

at sections 2000e et seq., which constitute the entirety of Subchapter VI of Chapter 21 on 

Civil Rights, of Title 42 of the United States Code. Provisions for enforcement of the 

rights in this subchapter are set forth at 42 U.S.C. § 2000e-5, and include a fee-shifting 

provision:

In any action or proceeding under this subchapter the court, in its discretion, 
may allow the prevailing party, other than the Commission or the United 
States, a reasonable attorney’s fee (including expert fees) as part of the costs, 
and the Commission and the United States shall be liable for the same as a 
private person.

42 U.S.C. § 2000e-5(k). This fee provision applies directly to private employers and also 

to federal employers pursuant to 42 U.S.C. § 2000e-16(d) (applying § 2000e-5(k) to federal 

employment claims).

In her administrative efforts to enforce her rights under Title VII, Ms. Alexander 

not only sought to recover the position she had lost due to discrimination, to receive 

appropriate merit ratings, pay, and other equitable relief, but also to recover her attorney’s 

fees. However, the Army’s final decision regarding the attorney’s fees portion of her claim 

was unreasonable. App. 5 (Agency decision of June 7, 1991).

Title VII explicitly provides that final agency decisions, such the June 7, 1991 

decision on Ms. Alexander’s claim, are reviewable by federal district courts. Indeed, the 

letter informing Ms. Alexander of the Army’s final decision on her remaining dispute over 

attorney’s fees explicitly informed her of her right to file a civil action in the appropriate 

district court to challenge the decision, the deadlines for such an action, and the proper 

way to name M.P.W. Stone, the Secretary of the Army as the defendant.1 The letter tracks

JApp. 5 -8. The notice of appeal sent to Ms. Alexander told her that she could properly 
proceed before either the EEOC or the district court if she disputed the Department’s 
decision on her fees. While it appears that the EEOC would have been an available forum, 
unbeknownst to Ms. Alexander, Secretary Stone would later assert tha" the other "choice" 
he gave her -  the district court -  was not open to a complaint. The Secretary’s present 
position stands in direct contradiction to the legal notice he sent Ms. Alexander.

6



the provision of Title VII that states that an aggrieved employee of the Federal 

Government, who has properly pursued administrative relief, timely "may file a civil action 

as provided in section 2000e-5 of this title. 42 U.S.C. § 2000e-16(c). The provisions of 

section 2000e-5(f) through (k) that govern enforcement for privately employed parties also 

apply to federal employment. See 42 U.S.C. § 2000e-16(d).

Sections 2000e-5(f) through (k) further clarify the jurisdiction of the federal courts 

over all Title VII claims. "Each United States district court ... shall have jurisdiction of 

actions brought under this subchapter." 42 U.S.C. § 2000e-5(f)(3). Further, "[a]ny civil 

action brought under this section ... shall be subject to appeal as provided in sections 1291 

and 1292, Title 28." 42 U.S.C. § 2000e-5(j). And, as noted above, 42 U.S.C. § 2000e-5(k) 

allows the court to award attorneys fees in any action or proceeding under the subsection.

Ms. Alexander satisfied all of the jurisdictional prerequisites for a federal action by 

(i) filing timely charges of employment discrimination with the appropriate agency, and (ii) 

receiving and timely acting upon that agency’s final decision and statutory notice of the 

right to sue. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798 (1973) (refusing to 

add any additional agency recommendation or condition to these two elements). It is 

undisputed that Ms. Alexander has complied with all aspects of Title VII governing 

administrative exhaustion for a claim regarding discrimination in employment by a federal 

agency. For example, had Ms. Alexander disputed a final agency decision setting back pay, 

there would have been no question that she could maintain a suit in federal court to claim 

full relief under 42 U.S.C. § 2000e-5(g). However, neither the district court nor Secretary 

Stone has asserted any persuasive reading of the provisions of Title VII that logically 

excludes a claim for attorney’s fees under 42 U.S.C. § 2000e-5(k). Allowing a complainant

Principles of estoppel bar the Secretary from any belated assertion that Ms. 
Alexander’s complaint is defective. Cf Martinez v. Orr, 738 F.2d 1107 (10th Cir. 1984) (30- 
day limit equitably tolled where EEOC notice of final decision was ambiguous as to the 
expiration of the right to sue, misleading, and lulled the employee into inaction).

7



to proceed with the appeal of any portion of a federal agency decision-whether the appeal 

concerns a group of claims or solely a claim for attorney’s fees—is plainly within the terms 

of Title VII. 2.

B. Title VII’s broad purpose requires inclusion of attorney’s fees 
as part of complete relief under Title VII.

Title VII is intended to provide "the most complete relief possible" and to "make 

persons whole for injuries suffered on account of unlawful employment discrimination." 

Albermarle Paper Co. v. Moody, 422 U.S. 405, 421, 418 (1975). This expansive relief is 

consistent with Congress’ intent in enacting Title VII. Congress authorized a private right 

of action for private plaintiffs to enforce Title VII in order to create a force of private 

attorneys general who would further "a policy that Congress considered of the highest 

priority." Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 418-19 (1978), quoting 

Newman v. Piggie Park Enterprises, 390 U.S. 400, 402 (1968).

To further societal, as well as individual, interests it was therefore imperative to 

include a fee provision for Title VII, § 706(k) of the Civil Rights Act of 1964, codified at 

42 U.S.C. § 2000e-5(k), to "make it easier for a plaintiff of limited means to bring a 

meritorious suit." Christiansburg 434 U.S. at 420 & n.14 (1978), quoting 110 Cong. Rec. 

12724 (1964) (remarks of Senator Humphrey); see also New York Gaslight Club, Inc. v. 

Carey, 447 U.S. 54, 63 (1980) ("It is clear that Congress intended to facilitate the bringing 

of discrimination complaints."). The fee shifting statute of Title VII was designed to

2The district court’s reasoning that requires that fees "must be associated with the efforts 
of a prevailing party," App. 30, is unsupported by case law or logic. Clearly "the court" 
must have a complaint before it, but it is not apparent why a complaint cannot be based 
solel; on a claim under 42 U.S.C. § 2000e-5(k), rather than, say, solely on a claim for an 
injunction under 42 U.S.C. § 2000e-5(g). Both cases require "the court" to examine the 
facts before it to see if they support the relevant enforcement provision.

8



promote this statutory scheme of enforcement. See Sullivan v. Hudson, 490 U.S. 877, 889 

(1989). The court has repeatedly concluded that "under § 706(k) of Title VII a prevailing 

plaintiff ordinarily is to be awarded attorney’s fees in all but special circumstances." See, 

e.g., Christiansburg 434 U.S. at 417 (emphasis in original).

Provision of attorney’s fees is not only useful, it is an integral component of the 

relief guaranteed by Title VII. In New York Gaslight Club, Inc. v. Carey, 447 U.S. 54 

(1980), the Supreme Court considered at length the scope of the attorney’s fees to be 

awarded in a claim under 42 U.S.C. § 2000e-5(k). The question narrowly presented by 

Carey was whether a prevailing plaintiff could recover attorney’s fees for the time spent in 

state administrative proceedings prior to filing a complaint in district court. The Carey 

Court held that § 2000e-5(k) did include attorney’s fees for such administrative proceedings. 

Central to the Court’s analysis was its understanding that Title VII established a 

comprehensive enforcement scheme that encompasses both a mandatory administrative 

phase and a supplemental resort to federal court enforcement.

The two-phase structure of Title VII presents two particular concerns. First, because 

aggrieved victims of discrimination are required to exhaust administrative remedies, a 

complainant needs to be funy represented at the early stage of proceedings. For example, 

it is critical to develop a complete factual record at the investigative stage, or in state 

proceedings, where, the Court held, "[wjithout doubt, the private attorney has an important 

role to play in preserving and protecting federal rights and interests." Carey, 447 U.S. at 

70. The danger to an unrepresented complainant is exacerbated by the likelihood that the 

opposing party in an administrative proceeding, whether a private party, state, or federal 

government, will likely be represented by an attorney. Congress’ mandate to enforce the 

rights protected in Title VII through individual actions would be void if complainants were 

consistently unrepresented. Congress’ goal of enforcing civil rights protected under Title

9



VII through actions would be vitiated. See ibid. ("Retention of private counsel will help 

assure that federal rights are not compromised in the conciliation process.").

In addition, Congress hoped that both the administrative and judicial phase of the 

scheme would be effective mechanisms to enforce civil rights. The Court emphasized that 

administrative proceedings could only be ensured as a "meaningful" part of the Title VII 

enforcement scheme if fee awards for work at that phase were authorized. Carey, 447 U.S. 

at 65.3 Depriving a complainant of the ability to retain an attorney at this critical phase 

would limit their utility for settlement or development of a complete investigative record. 

The Supreme Court has recently extended its analysis of interlocking enforcement 

structures in Title VII to claims for attorney’s fees under the Equal Access to Justice Act, 

28 U.S.C. § 2412(d). The Court recognized the importance of certain administrative 

proceedings:

Our past decisions interpreting other fee-shifting provision make clear that 
where administrative proceedings are intimately tied to the resolution of the 
judicial action and necessary to the attainment of the results Congress sought 
to promote by providing for fees, they should be considered part and parcel 
of the action for which fees may be awarded.

Sullivan v. Hudson, 490 U.S. 877, 888 (1989).

Attorney’s fees are a crucial component c f he relief due to a complainant under

Title VII. The importance of fees is strikingly demonstrated by the fact that the plaintiff,

3In affirming the decision to award fees, the Supreme Court noted several of the factors 
relied upon by the Court of Appeals for the Second Circuit:

□he significant role of state human rights agencies in the Title VII 
orcement scheme; the statute’s strong preference for administrative 
resolution of a discrimination complaint; the importance of providing an 

incentive for complete development of the administrative record; the 
language of the statute’s fee provision; and the desirability of encouraging a 
complainant to retain private counsel notwithstanding participation of a 
Division attorney at certain points during the state proceedings.

Carey, 447 U.S. at 60, a ffg  Carey v. New York Gaslight Club, Inc., 598 F.2d 1253 (2d Cir. 
1979).

10



not the attorney, is entitled to most fee awards under fee-shifting statutes. See, e.g., 42 

U.S.C. § 2000e-5(k) (allowing fees to the "prevailing party"). Congress clearly recognized 

that plaintiffs were the aggrieved individuals who needed to be made whole—and to be 

given the tools to accomplish that task. It thus bestowed statutory eligibility for fees on the 

prevailing party, rather than the attorney directly. It is the complainant who is entitled to 

claim, bargain away, or pass by any fee award. See Evans v. Jeff D., 475 U.S. 717, 730 

(1986) (interpreting the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. 

§ 1988).

The presence of a private attorney is particularly important in actions against the 

government. Carey clearly recognized that the interests of a state attorney, if in fact one 

was provided in administrative proceedings, are distinct from a complainant’s interest. 

Carey, 447 U.S. at 70. This concern is even more pronounced when a federal employee is 

the complainant. According to the District of Columbia Court of Appeals, prevailing 

plaintiffs have consistently been awarded attorney’s fees when a federal agency is the 

defendant. See Parker v. Califano, 561 F.2d 320 (D.C. Cir. 1977), cited with approval in 

Carey, 447 U.S. at 61 n.2. In Parker, Judge Skelly Wright observed that, because the 

Attorney General and the EEOC are not authorized to bring suits again '* federal agencies— 

and indeed are often on the other side-it is even more critical that federal employees be 

able to act effectively as private attorneys general against discrimination by these employers. 

Parker, 561 F.2d at 331. Judge Wright also noted that Title VII requires federal employees 

to bring their administrative complaints not to an independent state or local body, or even 

the EEOC, but to the very agency whose practices are the subject of the complaint. Ibid. 

The complainant’s perception of an "inherent conflict of interest involved when the agency 

accused of discrimination is responsible for processing and ruling on the claim" may 

undermine faith in the proceeding. Parker, 561 F.2d at 331 n.28, citing Chandler v. 

Roudebush, 425 U.S. 840, 863 n.39 (1976). Any obstacle to the plaintiffs retention of

11



counsel in federal administrative proceedings compounds the problems of such a conflict. 

Parker, 561 F.2d at 333.

II. THE SUPREME COURTS HOLDING IN CAREY REQUIRES THAT 
PLAINTIFFS WITH COMPLAINTS THAT ARE SOLELY FOR FEES UNDER 
TITLE VII BE ABLE TO OBTAIN RELIEF IN DISTRICT COURTS.

Jurisdiction to award any aspect of relief under Title VII ultimately lies with the

federal courts. See, e.g., Carey, 447 U.S. at 64, quoting Alexander v. Gardner-Denver Co., 415

U.S. 36, 44-45 (1974). The interlocking scheme of Title VII requires a plaintiff first to

attempt to obtain relief from appropriate agencies, states, or local bodies. However, if

those administrative efforts fail in whole or in part, a plaintiff retains the supplemental right

to seek full enforcement from the federal courts. Full enforcement of Title VII requires

that fees be included like any other aspect relief under Title VII. Carey held that:

One aspect o f complete relief is an award o f attorney’s fees, which Congress 
considered necessary for the fulfillment o f federal goals. Provision o f a federal 
award o f attorney’s fees is not different from any other aspect o f the ultimate 
authority o f federal courts to enforce Title VII.

Carey, 447 U.S. at 54, 67-68. This simple fact inevitably requires the conclusion that Ms. 

Alexander’s complaint for reasonable fees cannot be dismissed for failure to state a claim.

A. The Carey Court Decided The Precise Issue In This Case.

The interlocking statutory scheme that compelled the Carey Court to recognize the 

inclusion for attorney fees for time spent in administrative proceedings justifies awarding 

such fees regardless whether a supplemental federal court action is ever filed. Writing for 

six members of the Carey majority, Justice Blackmun explained the necessary conclusion 

of this reasoning:

12



availability of a federal fee award for work done in state proceedings 
following EEOC referral and deferral should not depend upon whether the 
complainant ultimately finds it necessary to sue in federal court to obtain 
relief other than attorney’s fees. . . . Since it is clear that Congress intended 
to authorize fee awards for work done in administrative proceedings, we must 
conclude that § 706(f) ( l ) ’s authorization o f a civil suit in federal court 
encompasses a suit solely to obtain an award o f attorney’s fees for legal work 
done in state and local proceedings.

Carey, 447 U.S. at 66 (emphasis added). The Court reasoned that it would be an anomaly 

to award fees to a complainant who had been unsuccessful in obtaining some non-fee 

remedies in an administrative forum, but to deny fees to the complainant who was 

successful in fulfilling Congress’ plan to vindicate federal policies in the first stages of 

proceedings. Ibid.

Any obstacle to obtaining reasonable attorney’s fees deprives plaintiffs of the 

"complete remedy" Congress intended for them. The Carey majority found that requiring 

a federal court action for relief on a non-fee claim, simply in order to obtain fees, would 

contradict Congress’ intention that complainants make full use of administrative forums to 

resolve their complaints. It speculated that withholding fees from anyone who did not file 

additional claims in federal court would create an incentive to over-file complaints. Noting 

that the right to resort to a federal action accrues within a year regardless of any resolution 

of an administrative complaint, a five-member majority concluded that "complainants would 

abandon state proceedings as soon as possible." Carey, 447 U.S. at 66 n.6 (Blackmun, J. 

writing for himself and four Justices).

Although the Court’s conclusion about the jurisdiction of federal courts over a claim 

solely for fees under Title VII may technically be characterized as dicta, the facts of the 

case compelled the Supreme Court’s stated conclusion. More than two years before filing 

her complaint in the district court, Carey filed a complaint with the EEOC, which was 

referred to the state agency. After an investigation and hearing, during which Carey was 

reprr rented by an attorney, the New York State Division of Human Rights found that the

13



defendant club has discriminated against Carey on the basis of her race, and ordered the

club to offer her a position and back pay, but denied attorney’s fees. The club appealed,

and the State Human Rights Appeal Board affirmed the finding and order for relief. The

club appealed to the Appellate Division of the New York Supreme Court and was again

unsuccessful. The New York Court of Appeals finally denied the club leave to appeal

further. After the initial award by the agency, but before the final denial by the state’s

highest court, Carey obtained a right to sue letter from the EEOC. Proceeding on the

federal courts’ "supplemental track," she then filed a timely action in the District Court for

the Southern District of New York. Carey, 447 U.S. 54, 57-58; Carey v. New York Gaslight

Club, Inc., 598 F.2d 1253, 1255 (2d Cir. 1979). After the New York Court of Appeals

denied leave to further review the state determination, the parties "apparently agreed" that

the federal action could be dismissed except for the request for attorney’s fees. Carey, 447

U.S. at 59. Thus, the Court of Appeals for the Second Circuit described the award of

attorney’s fees for the successful state proceedings as "the only issue presented by Carey"

in the district court, and framed the question to be decided as:

whether the general policy of awarding attorney’s fees to successful plaintiffs 
in Title VII actions envisions an award to a party who is successful in 
pursuing her c1̂  m before the state human rights agency without having to 
pursue her case in federal court. There is no real question that Carey 
prevailed on the merits before the Division of Human Rights. The question 
is whether § 706(k) encompasses fee awards to complaining parties who 
succeed at a step in the statutory scheme before they are forced to litigate 
their claims in federal court.

Carey, 598 F.2d at 1256-57. Similarly, the dissenting opinion in the Court of Appeals noted 

that "the only issue presented to the district court is the propriety of an award of such fees." 

Carey, 598 F.2d at 1260 (Mulligan, J., dissenting). The two Supreme Court Justices who 

dissented in Carey relied on this characterization when they noted that they would reverse 

for "essentially the reasons given by Judge Mulligan in [his] dissent." Only Justice Stevens 

distinguished the technical c mtinuation of Carey’s administrative complaint through state

14



appeals from a pristine separate federal action filed solely to recover attorney’s fees. 

Further, only Justice Stevens expressed "doubt" whether an action solely to recover fees 

was, by virtue of that content alone, intended by Title VII. Carey, 447 U.S. 54, 71 (Stevens, 

J., concurring in the judgment).

Like Carey, several of the cases cited approvingly by the Carey majority are 

essentially cases in which only fees are at issue. See Carey, 447 U.S. at 61 n.2, citing, e.g, 

Johnson v. United States, 554 F.2d 632 (4th Cir. 1977); Fischer v. Adams, 572 F.2d 406 (1st 

Cir. 1978). In Johnson, the district court had remanded an action to the Civil Service 

Commission but subsequently entertained a newly-docketed complaint filed solely to 

recover attorney’s fees. The Court of Appeals found the fee award proper. In so doing, 

it reached out to relate the fees-only complaint to an earlier remanded claim. Johnson, 554 

F.2d at 633. The Court of Appeals for the First Circuit confronted this controversial cause 

of action more directly in Fischer. The district court in Fischer had dismissed the 

complainant’s request for fees. On appeal, the court rejected the government’s claim that, 

after back pay was paid in full, the complaint should be dismissed as moot because the 

remainder sought only interest and attorney’s fees. Fischer, 572 F.2d at 409. On appeal, 

the court did not stress that the original complain* had other claims. Rather, the court 

held that whether or not the agency had authority to grant attorney’s fees, the appellant 

was aggrieved by her inability to obtain a part of the full relief to which she was entitled. 

Citing the provision of Title VII governing claims against the federal government, the court 

found that "appellant is an aggrieved party entitled to bring an action in federal court for 

her attorney’s fees." Fischer, 572 F.2d at 411 (citing to § 717(c) of Title VII).

Finally, the Carey Court’s citation to Parker v. Califano, 561 F.2d 320 (D.C. Cir. 

1977), is significant. Although the complainant in Parker sought relief in addition to fees, 

the majority stated the "anomaly" that the Supreme Court in Carey acknowledged. Parker, 

561 F.2d at 330 n.24. Declining to decide the dilemma of the complainant too successful

15



at the administrative level to seek fees in a district court, the District of Columbia Court 

of Appeals pointed out a "possible" solution: to allow the plaintiff to come to court on the 

single issue of fees. Ibid.

B. The Scope Of § 1988, A Different Fee-Shifting Statute, Does Not Affect 
Carey’s Construction Of The Fee-Shifting Scheme Of Title VII.

The District Court’s reliance on the Supreme Court’s decision in North Carolina 

Dep’t o f Transp. v. Crest St. Community Council, 479 U.S. 6 (1986) is misplaced. Crest was 

not a Title VII case, however, but an action to recover attorneys fees under the Civil Rights 

Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988. The Crest Court held that a 

claimant cannot maintain a separate federal action solely to recover attorney’s fees under 

§ 1988, but can claim fees only when the complaint also seeks to enforce any of the civil 

rights laws listed in § 1988. That holding does not govern this case for two reasons.

First, the different holdings regarding the district courts’ jurisdiction over complaints 

solely for fees under 42 U.S.C. § 2000e-5(k) (Title VII) and 42 U.S.C. § 1988 arise directly 

from differences in the plain language of the two statutes. The statute at issue in Crest 

provides:

In any action or proceeding to enforce a provision of section 1981, 1981a,
1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, or title 
VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the 
prevailing party, other than the United States, a reasonable attorney’s fees as 
part of the costs.

42 U.S.C. § 1988(b).

Justice O’Connor’s majority opinion in Crest rests directly on the textual requirement 

that the "action or proceeding" for which fees are sought must have been "to enforce a 

provision" of a precise list of statutory protections. Working from this text, the Court 

found that the statute simply does not authorize fees to enforce any but the listed civil 

rights laws; section 1988 authorizing fees is not among those it lists. Crest, 479 U.S. at 12.

16



In direct contrast, Title VII’s fee shifting statute is self-referential in that it allows fees for 

any "action or proceeding under this subchapter." 42 U.S.C. § 2000e-5(k). "This 

subchapter" is the Subchapter containing all of the equal employment opportunities 

provisions of Title VII, including the fee provision itself. Title 42 U.S.C., Chap. 21, 

Subchap. VI., § 2000e-5(k).

Crest further found that the legislative history of § 1988 supports the particular 

wording of the requirement that the action or proceeding be "to enforce" a particular right. 

It found the legislative history of the Fees Act repeatedly assumed that enforcement actions 

would be through "the courts" and "in suits." Crest, 479 U.S. at 12. The Crest Court did 

not attempt to compare the legislative purpose behind Title VII and the structural scheme 

of Title VII relief with that of the specific civil rights laws listed in § 1988. Further, in 

interpreting the statute, the Crest majority refused to acknowledge that attorneys might 

forego available pre-court remedies to preserve claims to fee-supporting actions. Crest, 479 

U.S. at 15.4 The different conclusions that the Crest Court draws from the legislative 

history of § 1988 reflect, in part, fundamental differences in the structure of the 

enforcement of Title VII and the civil rights statutes encompassed by 42 U.S.C. § 1988.

The second major reason why Crest is inapplicable to the present Title VII question 

is that Title VII requires exhaustion of administrative remedies. While some civil rights 

laws for which fees would be available under § 1988 may be preceded by administrative 

proceedings, Title VII differs in creating a comprehensive, mandatory administrative 

scheme. As discussed earlier, the pursuit of administrative remedies can greatly affect the 

investigation, recording, and development of a complainant’s eventual federal complaint.

4The Crest majority does not repudiate any but the most extreme predictions of 
distortion predicted by the majority. See, 447 U.S. at 66 n.6. It remains difficult to adopt 
the optimism of the Crest majority in light of the realities of the delays and dead costs of 
expending effort at administrative stages. See Crest, 479 U.S. at 16, 21-25 (Brennan, J., 
dissenting).

17



Without an attorney at this stage of the proceeding the complainant’s rights are diminished. 

This diminution is a compelling harm that neither Crest nor the district court below 

considered.

The legal distinction between Title VII’s requirement of administrative exhaustion 

and the option of undertaking administrative proceedings before civil rights actions under 

the statutes listed in 42 U.S.C. § 1988 is significant. In Webb v. Board o f Ed. of Dyer 

County, 471 U.S. 234 (1985), a case noted by Crest, 479 U.S. at 14, this difference was 

controlling. Webb held that the award of fees for time spent pursuing optional 

administrative proceedings before the filing of a civil rights action under 42 U.S.C. § 1983, 

was not appropriate under 42 U.S.C. § 1988, unless that time also ultimately advanced the 

eventual litigation. See Webb, 471 U.S. at 241, 243. Webb distinguished Carey’s holding 

that fees were available for administrative work under 42 U.S.C. § 2000e-5(k) because Title 

VII "expressly requires the claimant to pursue available state remedies before commencing 

proceedings in a federal forum. There is no comparable requirement in § 1983, and 

therefore the reasoning in Carey is not applicable to this case." Webb, 471 U.S. at 240. 

Because the complainant had not been required to take any of the administrative avenues 

that he ^arsued before filing his claim, the Court found that those proceedings simply did 

not have "the same integral function under § 1983 that state administrative proceedings 

have under Title VII." Webb, 471 U.S. at 241.

Justice O’Connor further developed this distinction between mandatory and optional 

proceedings in writing for the majority in Sullivan v. Hudson, 490 U.S. 877 (1989). In 

interpreting the Equal Access to Justice Act, 28 U.S.C. 2412 (d), to allow fees for 

representation in administrative proceedings, Justice O’Connor compared the structure of 

adjudication under the EAJA to that of Title VII. Id. at 888-89. Tracing the development 

of fee-shifting laws through decisions including Carey, Webb, and Crest, the Court drew a 

parallel between the "‘mandatory’ nature of the administrative proceedings" under the

18



EAJA and "administrative proceedings [that] may be so intimately connected with judicial 

proceedings as to be considered part of the ‘civil action’ for purposes of a fee award." 

Hudson, 490 U.S. at 889, 892.

This Circuit drew these same distinctions between § 2000e-5(k) and § 1988 when 

confronted with the question posed by Crest. Three years before the Supreme Court’s 

ruling in Crest, but as many years after the decision in Carey, this Court held that a plaintiff 

who files a civil complaint solely under § 1988 without including a claim under one of the 

civil rights statutes listed in § 1988 is not entitled to attorney’s fees. In Latino Project, Inc. 

v. City of Camden, 701 F.2d 262 (3d. Cir. 1983), this Court relied on differences in the plain 

language and legislative history of the § 1988 civil rights and Title VII fee-shifting statutes, 

701 F.2d at 263-64, 265-66 n.2. It also discussed at length the impact of whether use of an 

administrative structure was mandatory or permissive and it identified as a "materially 

different" the fact that at least three of the predicate civil rights statutes included in § 1988 

differed from Title VII because they did not require administrative exhaustion. Latino 

Project, 701 F.2d at 264 (concluding from the lack of an administrative requirement for 

§ 1983 actions, Title IX suits, and Title VI suits that Congress did not intend an award of 

attorney’s fees for administr a t e  work to be an essential component of § 1988 relief).

C. Application Of The Handicapped Children’s Protection Act’s Fee- 
Shifting Provision Illustrates The Differences Between § 1988 and 
Title VII’s Fee Provision.

The District Court below appears to hold that Crest’s restrictive approach to 

jurisdiction over fee litigation under § 1988 should be extended to other fee-shifting 

statutes. This broad brush approach simply overlooks differences in Congressional intent 

and choice of language in crafting various fee shifting statutes. This approach also glosses 

over a whole line of case lav that distinguishes Crest’s treatment of attorney’s fees under

19



§ 1988 and the fee-shifting provision of the Handicapped Children’s Protection Act, 20 

U.S.C. § 1415(e)(4)(B). Four circuit courts and the vast majority of district courts have 

held that separate actions for fees are permissible for plaintiffs who have prevailed at 

administrative hearings under HCPA. See Moore v. District o f Columbia, 907 F.2d 165 

(D.C. Cir. 1990) (en banc) cert, denied, 111 S. Ct 1018 and cases cited therein. In this 

Circuit, the District Court of New Jersey has held that a plaintiff is entitled to bring a 

separate action solely for fees under HCPA. See Chang v. Board o f Educ. o f Glen Ridge 

Township, 685 F. Supp. 96 (D.N.J. 1988).

This case law is particularly relevant to the instant case because HCPA’s fee-shifting 

provision is similar to § 706(k) and distinctly different from § 1988.

First, the plain language of HCPA is different from that of § 1988. HCPA calls for fee- 

shifting in administrative hearings while § 1988 restricts it to suits. The plain language of 

§ 706 is very close to that of HCPA. As noted supra, the plain language of section 706 is 

self-referential, while the language of § 1988 is not. The language of HCPA is similarly 

self-referential:

In any action or proceeding brought under this subsection, the 
court, in its discretion, may award reasonable attorneys’ fees as 
part of the costs to the parents or gr?;dian of a handicapped 
child or youth who is the prevailing party.

20 U.S.C. § 1415(e)(4)(B). This linguistic distinction between HCPA and § 1988 was one 

of the bases for the Sixth Circuit’s rejection of the applicability of Crest in its holding that 

an action in federal court for the sole purpose of obtaining costs for an administrative 

hearing was authorized under HCPA. See Eggers v. Bullit County School District, 854 F.2d 

892, 895 (6th Cir. 1988); see also, Prescott v. Palos Verdes Peninsula Unified Sch., 659 F. 

Supp. 921, 925 n.3 (C.D. Cal. 1987) ("First, the statutory language of the two attorney’s fees 

provisions differs in that the wording of § 1415(e)(4)(B) is less narrow than that of 

§ 1988."); Burpee v. Manchester School District, T61 F. Supp. 731, 732 (D.N.H. 1987)

20



("amendatory provisions of HCPA make clear ... the Court in its discretion may award 

attorney fees for success at either the administrative or the judicial level").

Second, the HCPA mandates administrative hearings while § 1988 does not. Title 

VII also mandates administrative hearings. Courts have relied on the distinction between 

the mandatory nature of HCPA hearings and the fact that § 1988 does not require the 

exhaustion of administrative remedies. See Eggers, 854 F.2d at 895 (holding that Crest is 

not controlling because an administrative hearing was not required under § 1988 while it 

was required here.); Counsel v. Dow, 849 F.2d 731, 740-41 (2d Cir. 1988), cert, denied, 488 

U.S. 955 (1988). This distinction led the courts to hold that Crest is not relevant as far as 

the awarding of attorney’s fees for required administrative hearings is concerned. This 

reasoning should also apply to the instant case, because Title VII, like HCPA, requires 

administrative proceedings.

These cases are also relevant because they have held that Carey still controls the 

interpretation of fee-shifting statutes concerning fees at administrative hearings under 

HCPA, while Crest is inapposite. The lower court appears to hold that Crest overturns 

Carey for all fee-shifting statutes. However, this holding ignores courts’ continuing reliance 

on Carey in HCPA cases. Both the Fifth and Sixth Circuit Courts of A ^ e a l  have cited 

Carey in distinguishing HCPA from § 1988 and pointed out the linguistic distinction 

between the two statutes—distinctions that are equally applicable to Title VII. See Duane 

M. v. Orleans Parish School Bd., 861 F.2d 115, 119 (5th Cir. 1988) ("The instant suit is much 

more akin to the situation in Carey than to that in Crest Street. Section 1415 itself, unlike 

§ 1988, does not refer only to suits brought to enforce EHA created rights."); Eggers, 854 

F.2d at 895 ("Appellees argue that the Supreme Court’s decision in Crest Street is 

controlling. We disagree and hold that the Court’s dicta in Carey is persuasive.")

The district court admits the similarity between the language in HCPA and § 706 

but fails to see that HCPA cases have any precedential value. App. 31. However, the

21



court ignores the importance in the holdings cited above of the plain language distinctions 

between HCPA and § 1988 (that are equally applicable to Title VII). The reasoning of 

these cases, which hold that fees from administrative hearings alone are grounds for a suit 

under 20 U.S.C. § 1415(e)(4)(B), should be followed in Title VII cases.

III. A RULING DENYING TITLE VII COMPLAINTS SEEKING SOLELY 
ATTORNEY’S FEES WOULD CONFLICT WITH THE DECISIONS OF 
OTHER CIRCUITS AND THIS COURT

In holding that Ms. Alexander did not state a claim, the district court acknowledged 

that it was rejecting the holding of the only Court of Appeals to have squarely addressed 

the issue in this appeal. In Jones v. American State Bank, 857 F.2d 494 (8th Cir. 1988), the 

Court of Appeals for the Eighth Circuit held that a claimant may bring an action under 

Title VII in a federal court solely for attorney’s fees for a mandatory state proceeding 

conducted pursuant to Title VII. Jones, 857 F.2d at 495. Jones found this conclusion 

compelled by the holding and reasoning of the Supreme Court in Carey. The court found 

that precedent established a presumption for awarding attorney’s fees to a prevailing 

plaintiff, that Congress intended to provide the most complete relief possible to victims of 

employment discrimination, and that it was essential that federal courts act as the "residual 

guarantors of Title VII rights." Ibid., 857 F.2d at 497-98.

The Jones Court also echoed some of the most basic fears of the Carey Court that 

proceedings for unrepresented complainants would be unfair. It specifically found that 

under state proceedings such as mandatory deferral in South Dakota, attorney’s fees were 

not available. Jones, 857 F.2d at 495. Even a successful state proceeding would force 

plaintiffs to forgo an attorney’s services altogether, or to pay for those services out of part 

of the back pay or damages calculated to make her whole. The Court found this dilemma 

would discourage victims of discrimination from obtaining counsel and seeking relief at all.

22



In addition, it would increase their vulnerability to an employer’s pressures for quick 

settlement for less than the full range of remedies theoretically available under Title VII. 

Jones, 857 F.2d at 499. Again, the federal employee remains the most vulnerable to the 

deprivation of counsel.5

Decided after Latino Project and Crest, Jones distinguished Title VII actions from 

those cases and actions arising from other civil rights laws, such as § 1988. Jones, 857 F.2d 

at 498 n.10. The court below summarily rejected this distinction, App. 32, on the 

incomplete argument that Crest had minimized those concerns in all fee actions. App. 29- 

30. Whatever the merits of the Crest Court’s optimism for the federal courts’ workload in 

a non-mandatory administrative scheme, Crest simply does not grapple with the 

consequences of the requirement of exhaustion under Title VII. Jones articulates the well- 

established principles of relief governing Title VII, and is consistent with the dictates of 

Carey, which distinguishes the reasoning of Crest and this Court’s Latino Project.

The Tenth Circuit Court of Appeals was confronted more recently with the question 

whether the district court retains jurisdiction over the complaint of a plaintiff who brings 

a federal action for back wages and attorney’s fees for services in an administrative 

proceed ”?g, and then voluntarily abandons the back wages claim. In Slade v. United States 

Postal Service, 952 F.2d 357 (10th Cir. 1991), the Court of Appeals addressed the question 

of Crest’s impact on Carey and the presumption of fee awards for Title VII proceedings. 

Like Carey, 447 U.S. 54 (1980), and earlier cases like Fischer, 572 F.2d 406 (1st Cir. 1978), 

the facts in Slade can technically be distinguished as presenting complaints that originally 

contained more than bare fee claims. However, the Magistrate Judge and employer urged 

that the action be dismissed for lack of subject matter jurisdiction. Like Carey and Jones,

5Further, because of the lengthy average wait and automatic appeal provisions under 
the fedr . al employee provisions of Title VII, these employers are most apt to be forced to 
jump tc federal court with prophylactic claims if fees are held not to be independently 
appealable.

23



the Tenth Circuit also based its finding of jurisdiction on the broad Congressional purpose 

of encouraging use of administrative remedies. Slade, 952 F.2d at 361. Moreover, Slade 

rejected the federal defendant’s argument that Crest controlled, distinguishing the plain 

language of the 1976 fee statute as requiring actions "to enforce" an enumerated list of 

rights. Ibid., 952 F.2d at 360-61.

Finally, while the Third Circuit has yet to rule on the exact question of an appeal 

from a violation of Title VII, it recently has strongly reaffirmed the principles underlying 

the application of the attorney’s fee provision, 42 U.S.C. § 2000e-5(k) (West Supp. 1992). 

In Kean v. M.P.W. Stone, Secretary of the Army, 926 F.2d 276 (3d Cir. 1991), this Court held 

that the district court had jurisdiction of an Army employee’s petition to review solely the 

Merit Systems Protection Board’s award of attorney’s fees after the employee had prevailed 

on a claim of discrimination. Award of fees for this action is governed by 5 U.S.C. 

§ 7701(g), which incorporates the standards of § 706(k) of Title VII, 42 U.S.C. § 2000e- 

5(k). Kean, 926 F.2d at 279. Kean had prevailed entirely on his discrimination claim, 

obtained back pay, and disputed solely the calculation and total of his attorney’s fees. The 

issue on appeal was the interpretation of overlapping statutes that controlled the proper 

forum for appeal of civil s e r^ e , as opposed to discrimination, decisions. The Court 

framed the question as:

whether the MSPB’s disposition of Kean’s attorney fee application should be 
regarded as independent of Kean’s claim on the merits, and hence reviewable 
by the Federal Circuit, or whether it should be assimilated to Kean’s claim 
on the merits, and hence reviewable by a district court.

Kean, 926 F.2d at 281. Because this Court found the attorney fee phase of a meritorious

discrimination claim to be "part and parcel of the claim on the merits," it held that the

district court had jurisdiction. Kean, 926 F.2d at 287. It rested this expansive construction

of jurisdiction to include this discrimination case in part on the Supreme Court’s

recognition that Congress reg' ~ded the attorney fee award authority embodied in § 706(k)

24



of the 1964 Civil Rights Act as "a major weapon in the arsenal of anti-discrimination law 

enforcement." Kean, 926 F.2d at 286, citing Carey, 447 U.S. at 63.

Kean suggests not only that fee claims should be liberally included as part of the 

substantive recovery of discrimination claims, but also demonstrates this Court’s willingness 

to entertain federal complaints that state only claims for attorney’s fees under the standard 

of 42 U.S.C. § 2000e-5(k). Indeed, the Kean Court cites to two similar decisions in which 

the sole issue before the district court was attorney fees. See Wood v. Reagan, 622 F. Supp. 

399, 402-03 (E.D. Pa. 1985) (awarding fees on appeal raising solely fees question after 

settlement of merits and recognizing Congressional intent to provide the full rights available 

to federal employees as private employees), disms’d on other grounds, No. 85-0155, 1985 

WL 4975, (E.D. Pa. Dec. 23, 1985); Seibel v. Lehman, No. H-86-355, 1987 WL 60304, *2 

(D. Conn. Jan. 13, 1987) (entertaining an appeal on the sole question of attorney’s fees 

without discussion of jurisdiction, and awarding fees "to protect and vindicate" civil rights 

and "to encourage the bringing of suits by federal employees challenging adverse personnel 

actions against them").

The Merit Systems Protection Board cases are also instructive on an underlying 

aspect of fee litigation under 42 U.S.C. § 2000e-5()r) With or without jurisdiction over 

complaints solely for fees, the standards for awards of fees under § 706(k) are laws "which 

district courts are administering every day." Kean, 926 F.2d at 287 (Poliak, J., sitting by 

designation with Becker, J. and Nygaard, J.). Whether the Carey Court’s fear that refusal 

to consider appeals of solely attorney’s fees would unnecessarily burden the courts, or 

whether the Crest Court’s reassurances that few additional complaints would enter the 

federal courts are well-founded, applying precedent to continue to allow sole claims for fees 

would be unlikely to overwhelm the administration of the courts. If anything, streamlining 

the claims brought to district courts for supplemental review after administrative 

proceedings gives proper consideration to the value of administrative requirements.

25



Accordingly, in Wood, Judge Newcomer rejected the government’s contention that the 

merits of plaintiffs settled MSPB claim must be relitigated before the court to support a 

finding of discrimination before fees could be awarded. Wood, 622 F. Supp. at 403 ("Such 

a procedure would make settlement meaningless.")

The district court’s decision fails to give effect to any of the goals animating Title 

VII’s interlocking system of administrative and judicial remedies. It makes no attempt to 

address Ms. Alexander’s faithful exhaustion of her administrative remedies and her right 

to challenge a final, adverse, agency decision on an integral part of her relief. Rather, it 

blindly borrows from a decision interpreting the distinctly different text of 42 U.S.C. § 1988. 

The plain language, legislative history, and fundamental structural differences of the causes 

of action listed in § 1988 make it poor guidance for courts who are in a pivotal role as the 

guarantors of rights under Title VII’s hybrid scheme.6 The conclusion of the Carey 

majority remains compelling, as recently affirmed by the Eighth Circuit in Jones, the Tenth 

Circuit in Slade, and this Court in its approach to fee claims as part of the merits of the 

Kean discrimination claim.

6 Not only does the district court overread Crest, it overlooks the recent decision in 
Sullivan v. Hudson, 490 U.S. 877 (1989), in its haste to cite Melkonyan . Sullivan, 59 
U.S.L.W. 4612 (June 10, 1991), a wholly inapplicable Equal Access to Justice Act fees case. 
App. 32.

26



CONCLUSION

For the reasons stated, Ms. Alexander prays that this Court hold that her complaint 

states a proper federal question and that it reverse the judgment, and remand this case to 

the District Court for further proceedings.

Respectfully submitted,

JULIUS L. CHAMBERS 
CHARLES STEPHEN RALSTON 
MARINA HSIEH

NAACP Legal Defense and 
Educational Fund, Inc.

99 Hudson Street, 16th floor 
New York, NY 10013 
(212) 219-1900

LANIER E. WILLIAMS 
P.O. Box 28828 
Philadelphia, PA 19151 
(215) 747-1318

B y___________________
Attorney for Appellant

Dated: July 20, 1992

27



CERTIFICATION OF BAR MEMBERSHIP

I certify that I, Marina C. Hsieh, co-counsel for Appellant Antonita Alexander, 

submitted an application for processing and was admitted to the Bar of the Court of 

Appeals for the Third Circuit on June 19, 1992, and am currently in good standing.

Attorney for Appellant



CERTIFICATE OF SERVICE

I certify that I have this 20th day of July, 1992, served two copies of the foregoing

BRIEF OF APPELLANT by United States Mail, postage prepaid, on each of the following

attorneys of record:

Christine N. Kohl
Department of Justice
Civil Division, Appellate Staff
Room 7124 MAIN
10th & Pennsylvania Ave., N.W.
Washington, D.C. 20530-0001

William Kanter 
Department of Justice 
Civil Division, Appellate Staff 
Room 7400
10th & Pennsylvania Ave., N.W.
Washington, D.C. 20530-0001

By:
Attorney for Appellant



I

I