Foster v. Boorstin Reply Brief for Appellant

    UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT 

No. 76-1487

GEORGE V. FOSTER/
Appellant,

vs.
DANIEL J. BOORSTIN,
Librarian of Congress,

Appellee.

On Appeal From The United States District Court 
For The District Of Columbia

REPLY BRIEF FOR APPELLANT

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
MELVYN R. LEVENTHAL 
ERIC SCHNAPPER 
BILL LANN LEE Suite 2030 

10 Columbus Circle 
New York, New York 10019

SHALON RALPH8601 Springaell Place 
Chevy Chase, Maryland 20015

Attorneys for Appellant



TABLE OF CONTENTS

A. Whether Federal Employees Are Entitled 
To Recover Attorney's Fees In Title VII 
Administrative And Judicial Proceedings 
That Are Part And Parcel Of The Same 
Litigation ...........................

B. Whether Federal Employees Are Entitled To 
Recover Attorney's Fees And Costs In Title 
VII Administrative Proceedings Per Se ....

Pa^e

6

17

1



TABLE OF AUTHORITIES

Page

Cases;
Alaniz v. California Processors, Inc., 13 FEP

Cases 738 (N.D. Cal. 1976) ...................  8
Alberxnarle Paper Co. v. Moody, 422 U.S. 405

<1975> ........................................ 34
Alexander v. Gardner-Denver Co., 415 U.S. 36

(1974) .......................................  3,13
Alyeska Pipeline Service v. Wilderness

Society, 421 U.S. 240 (1975) ...............  2,4,6,33
Aspira of New York, Inc. v. Board of

Education of the City of New York, 65
F.R.D. 541 (S.D. N.Y. 1975) ..................  10,12

Barela v. United Nuclear Corp., 462 F.2d 149 
(10th Cir. 1972), affirming, 317 F. Supp.1217 (D. N.M. 1970) ..........................  21

Batiste v. Furnco Construction Corp., 350 
F. Supp. 10 (N.D. 111. 1972), reversed,
503 F.2d 447 (7th Cir. 1973) .77777777........  23

Blau v. Rayette-Faberge, Inc., 389 F.2d469 (2d Cir. 1968) ...........................  1X
Bowie v. Weinberger, D.C.C. No. 74-1801

(June 17, 1975) ..............................  18,21
Bradley v. Richmond School Board, 416 U.S. 696(1974) .......................................  12
Brown v. Gaston County Dyeing Machine Co.,

457 F.2d 1377 (4th Cir.) cert denied,
409 U.S. 982 (1972) .... 7777.777777..........  10

Brown v. General Services Administration,
44 U.S.L.W. 4704 (Sup. ct. June 1, 1976) .. 5,7,19,20

Caterpillar Tractor v. Grabier, 2 EPD
H 10,301 (S.D. 111. 1970) ....................  22

Chandler v. Roudebush, __U.S. __ 44 U.S.L.W. 4709
(Sup. Ct. June 1, 1976) ...............  4,7,13,17,19

24,27,31
- ii -



Cases (cont’d): Page

Cherner v. Transitron Electric Corp., 221
F. Supp. 55 (D. Mass. 1963) ..%...............  12

Culpepper v. Reynolds Metals Co., 421 F.2d
888 (5th Cir. 197 .) ..........................  18,25

Day.v. Mathews,. -U.S. App. D.C. ,530 F.2d 1082 (D.C. Cir. 1976y...............  7
Dottenheim v. Emerson Electric Mfg. Co.,

7 F.R.D. 195 (E.D. N.Y. 1947) ................  11
EEOC v. Pacific Press Publishing Assn., 10 EPD

5 10,290 (N.D. Cal. 1975) ....................  8
EEOC v. Salvation Army, 3 EPD «[ 8090 (N.D. Ga.

1970) ........................................  21
Ellis v. Naval Air Rework Facility, 10 EPD

5 10,532 (N.D. Cal. 1975) ....................  27
Evans v. Sheraton Park Hotel, __ U.S. App. D.C. __,

503 F.2d 177 (D.C. Cir. 1974) .............  3,8,13
Evers v. Dwyer, 358 U.S. 202 (1958) .............  11
FCC v. Turner, __ U.S. App. D.C. __, 514 F.2d

1354 (1975) ..................................  26
Fitzpatrick v. Bitzer, 44 U.S.L.W. 5120

(Sup. Ct. June 28, 1976) .....................  5
Fitzgerald v. U. S. Civil Service Commission,

407 F. Supp. 380 (D.D.C. 1975) ...............  26
Fitzgerald v. U.S. Civil Service Commission,

D.C. No. 76-1144 .............................  1
Foster v. Civil Service Commission, S.D.N.Y., 72

Civ. 1902 (CHT) (July 28, 1976) ..............  8
Fogg v. New England Telephone and Telegraph Co.,

396 F. Supp. 645 (D.N.H. 1972) ...............  13
Foster v. Boise-Cascade, Inc., 13 FEP Cases

578 (S.D. Tex. 1976)   8
Franks v. Bowman Transportation Co., __U.S.

47 L.Ed. 2d 444 (1976) .....................  3,20,34

- x n



Cases (cont'd): Page

Gilson v. Chock Full O'Nuts Corp., 331 F.2d
107 (2d Cir. 1964) ............................  11

Globus, Inc. v. jaroff, 279 F. Supp. 807
(S.D. N.Y. 1968) ..............................  12

Grubbs v. Butz, __ U.S. App. D.C. __,
12 EPD 5 11,090 (D.C. Cir. 1976) ..............  5,8,17

20,27,32
Hackley v. Roudebush, __U.S. App. D.C.

520 F.2d 108, 156-157 (D.C.Cir. 1975) ......  7,14,17
30,32

Hammond v. Balzano, 10 EPD 5 10,333 (D.C.C. 1975)..6,18,21
Hays Livestock Commission v. Maly Livestock Com­

mission, 498 F.2d 925 (10th Cir. 1974) ........  25
Incarcerated Men of Allen Cty. jail v. Fair,

507 F.2d 281 (6th Cir. 1974) ..................  12
Johnson v. Georgia Highway Express, Inc.,

488 F.2d 714 (5th Cir. 1974) ..................  3
Johnson v. Goodyear Tire & Rubber Co., 491 F.2d

1364 (5th Cir. 1974) ..........................  20
Johnson v. United States, 12 EPD 5 11,039

(D. Md. 1976) ..........................  6,8,16
19,21

Kahn v. Rosenstiel, 424 F.2d 161 (3d cir. 1970)
cert denied, 398 U.S. 950 (1970) .............  12

H. Kessler &- Co. v. EEOC, 472 F.2d 1147
(5th Cir. 1973) ..............................  2 6

Koger v. Ball, 497 F.2d 702 (4th Cir. 1974) .....  4
Kopet v. Esquire Realty Co., 523 F.2d 1005

(2d cir. 1975) ...............................  10
Lea v. Cone Mills Corp., 438 F.2d 86 (4th Cir. 1971).. 11
Love v. Pullman Co., 404 U.S. 522 (1972) ........  20,23
McMullen v. Warner, 12 EPD 5; 11,107

(D.C.C. 1976) ..........................  6,8,19,26

- iv -



Civil Rights Attorney's Fees Awards Act
of 1976, Pub. L. 94-559 ..............  2,5,6,21

31,33
5 U.S.C. § 551 et seq............................. 24
5 U.S.C. § 6322 .................................  24
5 U.S.C. § 8125 .................................  24
18 U.S.C. § 205 ....................................  24
33 U.S.C. §§ 923 (b), 924, 927 and 928 ...........  24
28 U.S.C. § 1920 ................................  26
28 U.S.C. § 2412 ................................  4,26
42 U.S.C. § 406 (b) ..............................  24
42 U.S.C. § 2 000e-2 (h) ..........................  20
42 U.S.C. § 2000e-3 (a) ..........................  21,22
42 U.S.C. § 2 000a-3 (b)   19
42 U.S.C. § 2000e-5 (f) ..........................  20
42 U.S.C. §§ 5(b), (c), (e) .....................  22
42 U.S.C. § 2000e-5 (g) .......................... 20
42 U.S.C. §§ 5 (i), (j) and 6(b) .................  21
42 U.S.C. § 2000e-5(h) ..........................  passim
42 U.S.C. § 2000e-8 (b) ..........................  22
42 U.S.C. § 2000e-8 (d) ..........................  23
42 U.S.C. § 2000e-12 (a) .........................  24
42 U.S.C. § 2000e-12 (b) .........................  22
42 U.S.C. § 2000e-16 .......................  4,19,20,23
47 U.S.C. § 206 ..................................  26
49 U.S.C. §§ 8 and 16 ..............................  25
Rule 801 (d) (2), Fed. R. Evidence ..............  7

Statutes: page

- vii -



Regulations:

LCR 2 010-3.1 ....................................  2 6
5 C.F.R. Part 713 ...............................  26
45 C.F.R. § 1067.2-5 ............................  24

Other Authorities:
H. R. Rep. No. 92-238, 92d Cong. 1st Sess (1971).. 24
H.R. Rep. No. 94-1558, 94th Cong. 2d Sess.,
H.R. Comm, on the Judiciary (1976) .........  2,5,6,11

Memorandum To Heads Of Departments And 
Agencies From Attorney General Edward
H. Levi, dated November 20, 1975 ..............  24

S. Rep. No. 92-415, 92d Cong., 1st Sess. (1971)... 24
S. Rep. No. 94-1011, 94th Cong. 2d Sess., S.Comm.

on the Judiciary (1976) ................  2,5,6,10,18
Subcomm. on Labor and Public Welfare, Legislative 
History of Equal Employment Opportunity Act of 
1972 (Comm. Print 1971) ........  22,24,28,30

Fed. R. Evidence Advisory Committee Notes in
Moore's Fed. Pract., Rules Pamphlet, Pt. 2 .... 7

V l l l



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 
No. 76-1487

GEORGE V. FOSTER,
Appellant,

vs.
DANIEL J. BOORSTIN, 
Librarian of Congress,

Appellee.

On Appeal From The United States District Court 
For The District Of Columbia

REPLY BRIEF FOR APPELLANT

In this reply brief*, appellant will respond point by 
point to a number of contentions made in appellee's brief.
For the convenience of the Court, we discuss first the narrow 
issue of attorney's fees in administrative proceedings which 
are part and parcel of the same Title VII litigation, and

* Pursuant to Rule 8 (b), as amended, appellant states that 
he is aware of the following related cases pending in the 
Court, Parker v. Matthews, No. 76-1416 and Fitzgerald v.
U. S. Civil Service Commission, No. 76-1144. Parker is a 
federal Title VII action; both cases are appeals from lower 
court award of attorney's fees for legal representation in 
administrative and judicial proceedings.



then the broader issue of attorney's fees in administrative 
proceedings per se. As appellant's principal brief and this 
brief point out, both legs of our position are supported by 
Judge Richey's decision in Parker v. Matthews, 411 F. Supp.
1059 (D.D.C. 1976) which the lower court erroneously dis­
tinguished j(A. 169) . Congress has expressly approved the Parker 
decision in the just enacted Civil Rights Attorney's Fees 
Awards Act of 1976, Pub. L. 94-559 (attached hereto as Appen­
dix A) which authoritatively construes statutory language
identical to that here in order "to achieve consistency in our

1/civil rights laws" on attorney's fees, and provides that 
"the standards for awarding fees be generally the same as under 
the fee provisions of the 1964 Civil Rights Act." The 
legislative history specifically endorses Parker as a proper

1/construction of 42 U.S.C. § 2000e-5(k), see infra at pp. 9-12.
Initially, however, we reiterate that the government's 

contentions against recovery are narrow and technical in nature,

1/ S. Rep. No. 94-1011, 94th Cong. 2d Sess., S. Comm, on the 
Judiciary, at p. 1; see also H. R. Rep. No. 94-1558, 94th Cong. 
2d Sess., H.R. Comm, on the Judiciary. (The reports are 
attached hereto as Appendices B and C. There was no conference report)
2/ S. Rep. No. 94-1011, supra, at p. 4.
3/ In light of the fact that "the circumstances under which 
attorneys' fees are to be awarded and the range of discretion of 
the courts in making those awards are matters for Congress to 
determine," Alyeska Pipeline Service v. Wilderness Society, 421 
U. S. 240, 262 (1975), appellant respectfully requests that the 
Court summarily reverse the lower court's refusal to consider 
attorney's fees in light of Pub. L. 94-559 and its legislative 
history. Certainly, the new law provides decisive support for 
appellant's arguments in the principal brief and this reply, and 
wholly undermines the government's contentions, see infra.

2



and their practical consequence is to severely limit the 
effectiveness of the Title VII "administrative and judicial
enforcement system" against federal employment discrimination.
If accepted, the government's position would provide the
nation's largest employer with a special dispensation from
effective application of Title VII, a policy Congress con-

4/sidered "of the 'highest priority.'"
This in fact is the government's basic contention with

respect to awards of fees for private attorney general enforce-
5/ment, as well as other Title VII issues, pp. 6-8. It is clear

that, "[t]his Court, as part of its obligation 'to make sure
that Title VII works,' has liberally applied the attorney's
fees provision of Title VII, recognizing the importance of

6/
private enforcement of civil rights legislation." it now 
also is clear that, " [a] principal goal of the amending legis­
lation, the Equal Employment Opportunity Act of 1972 . . . was 
to eradicate 'entrenched discrimination in the Federal service'
. . . by . . .  according ' [a]ggrieved [federal] employees or 
applicants . . . the full rights available in the private

4/ Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 (1974); 
Franks v. Bowman Transportation Co., U.S. , 47 L.Ed. 2d444, 461 (1976).
5/ See, e.g., cases cited in Brief For Appellant at 19-20.
6/ Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 716
(5th Cir. 1974); Evans v. Sheraton Park Hotel, ___U.S. App.
D.C. ___, 503 F.2d 177, 187 (D.C. Cir. 1974); see also Saqers v.
Yellow Freight System. 529 F.2d 721, 739 (5th Cir. 1976).

3



sector under title VII,'" Chandler v. Roudebush, ___ U.S. ___,
44 U.S.L.W. 4709, 4710 (Sup. Ct. June 1, 1976). There is thus 
no doubt that federal employees have the same full right to 
recover attorney's fees under Title VII as all other employees. 
Indeed, "this result would appear to be indicated by the 
statutory language of Section 706(h): 1. . . and the Commission 
and the United States shall be liable for costs the same as a 
private person.'" U. S. Steel Corp. v. United States, 519 F.2d 
359, 363-364 (3d Cir. 1975).

The government, however, would have the Court ignore at the
outset that this is a federal Title VII case or that the very
purpose of § 717 of Title VII, 42 U.S.C. § 2000e-16, is to
provide federal employees with full Title VII rights. Instead,
the government proffers non-Title VII "background" that " [t]he
long established rule is that, absent a statute or enforceable
contract, litigants in federal court pay their own attorney's
fees," and "28 U.S.C. § 2412 . . . precludes the award of
attorney's fees against the federal government in any civil
action to which the United States or any agency or official
thereof is a party, except as otherwise specifically provided
by statute," at pp. 6-7. This tact is wholly specious. First,
Title VII, without a doubt, is a statute that expressly pro-

1/vides for recovery of attorney's fees that specifically
8/waives sovereign immunity. Second, § 2000e-16(c) and (d)

7/ See Alyeska Pipeline Co. v. Wilderness Society, 421 U.S.240, 260 n. 33 (1975).
8/ See Roger v. Ball. 497 F.2d 702, 708 n. 33 (4th Cir. 1974);
Womack v Lynn, ___U.S. App. D.C. , 504 F.2d 267, 269 (D.C.
Cir. 1974).

4



In short, nothing the government contends derogates from the
rule that Title VII1s private attorney general fees provisions
must be liberally construed whether the employer is public or

12/
private. This rule is a given which undercuts the whole 
thrust of the government's technical objections.

A. Whether Federal Employees Are Entitled To Recover Attorney's 
Fees In Title VII Administrative And Judicial Proceedings 
That Are Part And Parcel Of The Same Litigation.____________
1. Appellee concedes that the narrow issue, see Brief For 

Appellant at 51-62, is independently dispositive of the lower 
court decision under the Parham-Evans catalyst rule for judi­
cial proceedings without reaching the broad issue of attorney's 
fee in the administrative process per se. Appellee only questions
the scope of the rule and its applicability to the present facts,

13/
see pp. 3 6 et_ seq.

12/ Brief For Appellant at 21-25. Any doubt is laid to rest in 
Pub. L. 94-559 legislative history. "The purpose of this amend­
ment is to remedy anomalous gaps in our civil rights laws created 
by the United States Supreme Court's recent decision in Alyeska 
Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975), 
and to achieve consistency in our civil rights laws," s. Rep. No. 
94-1011, supra at 1; H. R. Rep. No. 94-1558, supra at 2-3. Both 
reports go on to approve Newman v. Piggie Park Enterprises, Inc., 
390 U. S. 400 (1968) and other judicial authority liberally con­
struing Title VII and other attorney's fees provisions. See also, supra at p. 3 , n. 2.
13/ The reasoning of Parker v. Matthews, 411 F. Supp. 1059 
(D.D.C. 1976); Johnson v. United States, 12 EPD 5 11,039 (D. Md. 
1976); McMullen v. Warner. 12 EPD 5 11,107 (D.D.C. 1976) (Sirica,
J.), see also Smith v. Kleindienst, supra, 8 FEP Cases at 753; 
Hammond v. Balzano, 10 EPD 5 10,333 (D.D.C. 1975) (Bryant, J.), 
permits recovery under either theory. However, Judge Gesell 
recently ruled that " [wjhile attorney's fees for time spent 
handling an administrative hearing cannot be included, this 
does not bar the claim here. Counsel have a responsibility to

6



2. The government does not and cannot take issue with
appellant's point that Mr. Foster was in fact the "prevailing
party" in the administrative proceedings portion of Title

, • 14/VII s integrated "enforcement mechanism." The government
merely argues that even though Mr. Foster prevailed, he is not 
a "prevailing party" under § 2000e-5(k). That Mr. Foster pre­
vailed in administrative proceedings while prior judicial 
proceedings were stayed does not diminish the substantial benefit 
attained; the administrative record finding discrimination 
and awarding relief is an admission against interest, barring

15/the government from litigating the merits on relief in court.

13/ (Continued)
ascertain the administrative position of a controversy before 
bringing it to court and limited reasonable administrative contacts 
immediately prior to suit will be recognized. That is the situa­
tion here." Walden v. Boorstin, D.D.C. Civ. Action No. 76-0297 
(October 20, 1976). Recovery of all of plaintiff's non-"excessive" 
hours of legal representation in administrative proceedings prior 
to suit and subsequent settlement was then permitted.
14/ Brief For Appellant at 53-54; Brown v. General Services 
Administration, supra. 44 U.S.L.W. at 4707.
15/ See Rule 801(d)(2), Fed. R. Evidence; Advisory Committee Note 
m  Moore's Fed. Pract., Rules Pamphlet, pt. 2 at 818-821; c£ 
Chandler v. Roudebush, supra, 44 U.S.L.W. at 4717; Hackley v.
Roudebush. __ U.S. App. D.C. __, 520 F.2d 108, 156-157 (D.C. Cir.
1975). Had Mr. Foster sought to embody relief achieved in a 
declaratory or injunction on summary judgment, or sought further 
relief on the basis of the administrative record, there is no 
reason to believe it would have been denied. See, e.g., Day v
Mathews, ____ U.S. App. D.C. __, 530 F.2d 1083 (D.C. Cir. 1976);
Richardson v. Hampton. 373 F. Supp. 833 (D.D.C. 1974), affirmed,
__ U.S. App. D.C. __, 52 7 F. 2d 853 (D.C. Cir. 1976). Indeed, the
government has unsuccessfully sought to attack administrative 
records favorable to plaintiffs in several cases in this district, 
but significantly did not try to do so here, see, e.q., Williams 
v. Saxbe, 12 EPD ?[ 11,083 (D.D.C. 1976). Clearly, Title VII' s 
integrated administrative-judicial enforcement mechanism assured

7



Caselaw construing § 2000e-5(k) is clear that "the definition
of 'prevailing' must be based upon the substantial results
achieved, not upon the technical concept of obtaining a judgment

16/
or '■winning' a motion or verdict." Thus, the government's
contentions on the narrow issue have the wrong-headed aim of
divesting Mr. Foster,, actual successful party below, of his
status for purposes of § 2000e-5(k).

3. As to the Parham-Evans catalyst rule, the government
17/

attempts to misconstrue the rule. The government tries to

15/ (Continued)
that the administrative finding of discrimination could not be 
challenged and obviated the need for Mr. Foster to seek judicial 
relief. It plainly and properly formed the substantive predicate 
for the motion for attorney's fees and costs.
16/ Alaniz v. California Processors, Inc. 13 FEP Cases 738, 742 
(N.D. cal. 1976); see cases cited in Brief For Appellant at 24-25. 
See also Foster v. Civil Service Commission, S.D.N.Y. 72 Civ. 1902 
(CHT) (July 28, 1976); Foster v. Boise-Cascade, Inc. , 13 FEP Cases 
578, 583-585 (S.D. Tex. 1976; Grubbs v. Butz, supra; Palmer v. 
Rogers, 10 EPD 5 10,499 at p. 6130 (D.D.C. 1975) (Flannery, J.); 
EEOC v. Pacific Press Publishing Assn., 10 EPD j[ 10,290 (N.D. Cal. 1975); cases cited infra at pp. 9-13.
17/ Parham v. Southwestern Bell Telephone Co., 433 F.2d 421,
429-430 (8th Cir. 1970) and Evans v. Sheraton Park Hotel, __u.S.
App. D.C. __, 503 F.2d 177, 189 (D.C. Cir. 1974) articulate the
general rule that a plaintiff who does not obtain formal injunctive 
relief is a prevailing party for purposes of recovering attorney's 
fees where "the lawsuit acted as a catalyst, prompting the 
defendant . . .  to take action in compliance with the require­
ments of Title VII," 503 F.2d at 189; the rule has been applied 
in federal Title VII actions with respect to administrative 
proceedings in Parker v. Matthews, supra, 411 at 1064 (citing 
Parham); Johnson v. United States, supra,; McMullen v. Warner, supra; Walden v. Boorstin, supra.

The parties agree that administrative proceedings are a kind 
of settlement proceedings for purposes of the Parham-Evans rule, see 
also infra at pp. 13-14. Clearly, if attorney's fees are recover­
able for informal settlement proceedings then, a_ fortiori, they

8



uphold the decision below by turning the Parham-Evans rule
on its head by limiting the rule only to cases in which 
plaintiff has proved discrimination in court or obtained judicial 
relief, pp. 37-38. This construction is obviously at odds with 
the language and intent of the Parham-Evans opinions; the whole 
point of the rule is to make non-judicial resolution which 
substantially benefit plaintiff or plaintiff class subject to 
attorney's fees awards. The government just misses the point 
that the rule is meant to be practical and non-technical in 
nature, and that its misconstruction has no support in federal 
Title VII caselaw applying the Parham-Evans rule. See supra 
atp. 8, n. 16 and infra at pp. 9-13.

The government's misconstruction also is inconsistent
with how Congress has construed the ruling in endorsing it in
the new civil rights attorney's fees law. Thus the House
Committee report clearly states "[t]he phrase 'prevailing party'
is not intended to be limited to the victor only after entry

18/of a final judgment following a full trial on the merits."

17/ (Continued)
are in the quasi-judicial administrative proceedings phase of 
a Title VII litigation. There also is no dispute that the court 
below explicitly violated the Parham-Evans rule by requiring judicial 
relief "for transforming administrative investigations into 
compensable adversary proceedings" (A. 170).
18/ "It would also include a litigant who succeeds

even if the case is concluded prior to a full 
evidentiary hearing before a judge or jury.
If the litigation terminates by consent decree, 
for example, it would be proper to award counsel

9



The Senate committee report similarly provides, at 5, that "for 
purposes of the award of counsel fees, parties may be con­
sidered to have prevailed when they vindicate rights through 
a consent judgment or without formally obtaining relief.
Kopet v. Esquire Realty Co.. 523 F.2d 1005 (2d Cir. 1975), 
and cases cited therein; Parham v. Southwestern Bell Telephone 
Co_., 433 F.2d 421 (8th Cir. 1970); Richards v. Griffith Rubber 
Mills, 300 F. Supp. 338 (D. Ore. 1969); Thomas v. Honeybrook 
Mines, Inc., 428 F.2d 981 (3d Cir. 1970); Aspira of New York, 
Inc, v. Board of Education of the City of New York, 65 F.R.D. 
541 (S.D. N.Y. 1975)." The Parham-Evans Title VII rule, as the 
committee reports indicate, has substantial support in general 
caselaw construing other attorney's fees provisions. Kopet 
v. Esquire Realty Co., supra. 523 F.2d at 1008-1009, Thomas v. 
Honeybrook Mines. Inc., supra, 428 F.2d at 985, cert, denied, 
401 U.S. 911 (1971) and cases cited therein are common benefit

18/ (Continued)
fees. Incarcerated Men of Allen County v.
Fair, 507 F.2d 281 (6th Cir. 1974); Parker v. 
Matthews, 411 F. Supp. 1059 (D.D.C. 1976);
Aspira of New York Inc.v, Board of Education 
of the City of New York. 65 F.R.D. 541 (S.D.
N.Y. 1975). A 'prevailing' party should not 
be penalized for seeking an out-of-court 
settlement, thus helping to lessen docket 
congestion. Similarly, after a complaint is 
filed, a defendant might voluntarily cease 
the unlawful practice. A court should still 
award fees even though it might conclude, as 
a matter of equity, that no formal relief, 
such as an injunction, is needed. E.g.,
Parham v. Southwestern Bell Telephone Co., 433 
F.2d 421 (8th Cir. 1970); Brown v. Gaston County 
Dyeing Machine Co.. 457 F.2d 1377 (4th cir.)

10



securities law actions in which " [t]here is no question . . .
that federal courts may award counsel fees based on benefits
resulting from litigation efforts even where adjudication is
never reached, e.g., after a settlement," 523 F.2d at 1008.
In a wide variety of such cases, the government's technical

19/rule has emphatically been rejected.
This Court summed up the general doctrine in Yablonski

v. United Mine Workers. __ U.S. App. D.C. __, 466 F.2d 424, 431
(D.C. Cir. 1972): "As all lawyers know, a lawsuit does not 
always have to go to final adjudication on the merits in order 
to be effective. Assuming the effectiveness in terms of 
practical results, the litigating stage attained is relevant

18/ (Continued)
cert denied, 409 U.S. 982 (1972); see also 
Lea v. cone Mills Corp., 438 F.2d 86 (4th Cir.
1971); Evers v. Dwyer, 358 U.S. 202 (1958)"(emphasis added).

H. R. Rep. No. 94-1558, supra, at 7.
19/ Intervenor coalminers committee which had brought another 
action against the United Mineworkers which led the United 
Mineworkers to bring the delinquency securities action received 
fees and costs in the securities action in Thomas v. Honeybrook 
Mines, Inc., supra. A stockholder was awarded counsel fees 
where his attorney merely informed the corporation by letter 
of insider transactions, demanded that the corporation bring 
suit, and the corporation settled with officer-director without 
filing suit in Blau v. Rayette-Faberge, Inc.. 389 F.2d 469 
(2d Cir. 1968), see also Dottenheim v. Emerson Electric Mfg. Co.
7 F.R.D. 195 (E.D. N.Y. 1947). A share-holder was awarded fees 
when his attorney merely wrote to the corporation concerning 
insider short-swing profits and of an imminent limitation period, 
the corporation advised the lawyer there were no violations, 
the attorney drafted a complaint and the corporation then success­
fully sued the insider in Gilson v. Chock Full O'Nuts Corp.,
331 F.2d 107 (2d Cir. 1964K ‘

11



only to the amount of the fees to be allowed, and not to the
2 0/issue of whether they should be awarded at all. " More­

over there is some question whether the government in fact 
seriously contends that the Parham-Evans rule be construed 
narrowly in light of the fact that the government concedes that 
a federal employee Title VII plaintiff who did not achieve a 
finding of discrimination or relief is a "prevailing party" 
in their brief in Parker v. Matthews, supra, although Judge 
Richey expressly cited Parham v. Southwestern Bell Telephone 
Co., supra, 411 F. Supp. at 1064 in the memorandum opinion 
appealed from. Appellant respectfully submits that the govern­
ment's inconsistent position in Parker is correct. The party 
that in fact prevailed is also the prevailing party under 
42 U.S.C. § 2000e-5(k).

20/ A flexible rule has been applied in cases under the Emergency 
School Aid Act, 20 U.S.C. § 1617 in Aspira of New York, Inc, v.
Board of Education, 65 F.R.D. 541 (S.D. N.Y. 1975) (settlement 
only); in prisoner rights suits in Incarcerated Men of Allen Cty.
Jail v. Fair. 507 F.2d 281 (6th Cir. 1974) (settlement only) in 
cases under the National Housing Act of 1949, 42 U.S.C. § 1441, 
et seq. in TOOR v. HUD, supra, 406 F. Supp. 1060, 1064 (N.D. Cal.
1974) (settlement only), see also Bradley v. Richmond School Board,
416 U.S. 696, 721-723 (1974) (interim relief generally).

A related instance in which a technical definition of "pre­
vailing party" has been eschewed are Title VII cases in which 
attorney's fees and costs have been awarded although courts have 
not found intentional discrimination in sex discrimination suits 
where the employer acted in good faith reliance on state regulation, 
see a.g., Richards v. Griffith Rubber Mills, supra, 300 F. Supp. 
at 341; Rosenfeld v. Southern Pacific Co.. 519 F.2d 527 (5th Cir. 1975).

See also Mills v. Electric Auto-Lite Corp., 396 U.S. 375, 393- 
394 (1970); Kahn v. Rosenstiel, 424 F.2d 161, 167 (3d Cir. 1970), 
cert denied, 398 U.S. 950 (1970); Cherner v. Transitron Electronic 
Corp., 221 F. Supp. 55 (D. Mass. 1963) (Wyzanski, J. ); Globus, Inc. 
v. Jaroff, 279 F. Supp. 807 (S.D. N.Y. 1968); Usery v. Local Union 
No. 639, D.C. Cir. No. 74-1851 (August 27, 1976).

12



4, The government next tries to distinguish Parham and
Evans because "neither . . . considered the relationship between 
the administrative and judicial proceedings." p. 38. First, 
the contention cuts against the government since the "relationship" 
is substantively and formally much closer than that of voluntary 
cessation or settlement and judicial proceedings, see supra at. 
p. 8, n. 17. So much so that the record developed in administra­
tive proceedings is admissible in judicial proceedings. It is 
illogical and ridiculous for the government to suggest that had 
Mr. Foster settled the case in a totally informal fashion he 
would have been entitled to award of attorney's fees and costs, 
but that since he resolved the controversy in quasi-judicial 
administrative proceedings he is out of luck. Second, voluntary 
compliance, settlement and administrative proceedings are all 
comparable informal non-judicial resolution procedures. See 
Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 (1974); Chandler 
v. Roudebush, supra, 44 U.S.L.W. at 4714-4715 ("’grievance remedy

2T/7procedures'"). Thus, even a cursory review of the Library's 
regulations (A. 173) indicates that it is in form a regularized

21/ "The two-fold purpose of bringing a charge before the EEOC 
is to give notice to the charged party and to provide a means for 
voluntary compliance and conciliation, expeditiously and inex~ 
pensively, " (emphasis added).' Evans. yu . Sheraton Park Hotel, 
supra, 503 F.2d at 183; see also Maeklip v. Spector Freight
Systems. Inc., ___U.S. App. D.C. ___, 478 F. 2d-979, 985 (D.C.
1973); Qatis v. Crown Zellerbach Corp., 398 F.2d 496, 497-498 
(5th Cir. 1968) Thus, applying Parham to award fees in a case 
of voluntary compliance, the district court in Fogg v. New 
England Telephone and Telegraph Co., 346 F. Supp. 645, 651 
(D. N.H. 1972), was of the view that " [w]hile Mrs. Fogcf was not 
denied promotion because she was a woman, she did perform a val­
uable public service by instituting the complaint with the EEOC 
and bringing this law suit" (emphasis added).

- 13 -



system designed for informal resolution and settlement in which 
"counseling," "resolution" and "adjustment" occur at any of 
several points. The serious procedural defects that this court 
noted in Hackley v. Roudebush, supra, 520 F.2d at 137-141 and 
171 (Leventhal j., concurring) indicate that in fact the administra­
tive process performs no better than unregulated settlement 

22/
proceedings.

5. The government also tries to distinguish Parham and 
Evans because " [w]hile the Court might be inclined to read 
section 2000e-5(k) liberally in a private sector case . . . , we 
submit that the court may not do so in the public sector in 
derogation of the doctrine of sovereign immunity," p. 39. The 
inappropriateness of any such limitation has been adequately 
addressed, supra at pp. 4-6.

6. The government also contends that the Parham-Evans 
catalyst rule is inapplicable to the facts in Mr. Foster's case, 
pp. 39-41, by attacking the lower court's explicit finding of 
fact that "fa]s a result of the lawsuit, the Library vacated 
its previous dismissal of plaintiff's administrative complaint 
(for failure to prosecute) and remanded the matter for further 
investigation. See Lorenz Letter (dated July 8, 1974) and

22/ The contention is especially anomalous in this case in which 
the record very clearly indicates that the Library of Congress 
decided to reopen administrative proceedings because "the Library's 
chances before the U. S. District Court [are] less than 50/50" (A. 85), infra at p. 15, n. 24, i.e., after precisely the kind of hard 
calculation of litigation prospects parties engage in before 
deciding to undertake settlement negotiations. In contrast, the 
settlement negotiations in Parker for which fees were granted 
were pre-filing.

14



Kominski Memorandum (dated July 1, 1974) included in Administra—
23/tive Record, filed March 26, 1976" (emphasis added) (A. 168).

This just flies in the face of the record, see pp. 2-5 and 59-62 of
24/the principal brief. The administrative record evidence was sub­

mitted by the government below and never disputed. Thus, all the 
evidence before the lower court compelled his factual finding that 
the filing of the lawsuit caused the Library's about face. The

23/ The government claims that the lower court's finding does not 
indicate a causal relationship but only "noticing the coincidence" 
or "reflect[ing] a vague notion that [they] . . .  were somehow 
related;" that there is no finding that "the review of the initial 
action taken upon appellant's administrative complaint would not 
have occurred but for the filing of the suit in the District court;" 
snd that "no actual evidence was ever adduced on the issue of 
casuality," pp. 39-40. All the claims are erroneous, infra.
24/ For the convenience of the Court, we set the relevant facts 
out anew; On March 27, 1974 Mr. Foster filed his administrative 
complaint of racial discrimination (A. 8). The EEO Coordinator 
cancelled his complaint for failure to prosecute on May 3rd (A. 72). 
The notice of cancellation expressly stated that Mr. Foster had 
the option of appealing to the Deputy Librarian on filing suit.
Mr. Foster elected the agency appeal and the Deputy Librarian 
concurred in the cancellation May 17th (A. 79). Under the Library's 
regulations, Mr. Foster had no other administrative recourse; 
accordingly the Deputy Librarian concluded, "In accordance with 
LCR 2010-3.1, you have the right to file a civil action in an 
appropriate U. S. District Court not later than thirty calendar 
days after the date of this letter." Library regulations state 
that the Deputy Librarian's decision is the "final agency decision," 
LCR 2010-3.1, § 7F (A. 180) and at no time has the government 
contended that this letter was anything but a final administrative 
decision. Library of Congress employees have no right to appeal 
to the U. S. Civil Service Comm. Appeals Review Board, 42 U.S.C.
§ 2000e-16(b). With some difficulty, Mr. Foster found a lawyer 
on June 14th (A. 81) and the action was filed June 17th (A. 3).
On July 1st, the Library's General counsel, Mr. John J. Kominski, 
reviewed the merits and the purported failure to prosecute,
"[o]n being served with the complaint in this case by the U.S. Marshall on June 25, 1974" (A. 83). He concluded:

"Consideration and re-consideration of the
above led me to assess the Library's chances

15



government's effort to mispresent the record is ill-conceived 
as well as obvious; the government does not try and cannot show 
that the finding was clearly erroneous. There is no basis in 
law or fact for a retrial of the issue.

7. The government proposes that "[Mr. Foster] should not 
now be heard to argue that the simple filing of a three-page 
complaint in the District Court and his entry into a stipulation 
staying all proceedings in the District Court several weeks later 
without any prompting by the District Court, either actively or 
passively, compel the award of attorney's fees," p. 41. Mr. 
Kominski, the Deputy Librarian, and the government attorneys 
below by their words and actions demonstrate sufficiently the 
power of simply filing a lawsuit to reverse the Library's 
rejection of the administrative complaint. Moreover, the civil 
action doubtlessly was a factor in the Library resolving the 
discrimination complaint favorably, compare Johnson v. united

24/ (Continued)
before the U. S. District Court as less than 
50/50. The administrative record in this 
matter is small, but the Court will look at 
it for direction. That record contains the 
above procedural errors and information which 
smacks of a less than proper procedure in the 
recommendation for the vacancy in question, and 
that recommendation brought about this com­
plaint" (emphasis added).

Mr. Kominski recommended, inter alia, that the Deputy Librarian 
vacate his decision, rescind his letter and remand for administra­
tive proceedings. The Deputy Librarian decided to follow Mr. 
Kominski's advice (A. 88). The Deputy Librarian's letter of 
July 5th to Mr. Foster's lawyer tracks Mr. Kominski's letter and 
refers any questions to Mr. Kominski. Reopening the case was 
clearly outside the normal channels for EEO complaints, see 
LCR 2010-3.1 (A. 173). Thereafter the government persuaded Mr. 
Foster to agree to a stay pending further agency proceedings.

16



States, supra, 12 EPD at p. 4840. 25/

8. Finally, the government raises the specter of the 
Parham-Evans rule encouraging early filing of lawsuits, p. 41.
The relevance of any such contention is obscure in light of 
Grubbs v. Butz, supra, and chandler v. Roudebush, supra. The 
claim also is perverse: the underlying assumption is that Mr. 
Foster and other federal employees choose to file suits when 
dissatisfied with administrative proceedings for trivial 
reasons. It simply is too late in the day for such contentions. 
Of course, the government neglects to mention that if their 
position on the availability of fees is allowed early filing 
w i n  not be deterred. Indeed, not only will federal employees 
presumably file early, but they will always remain in court.

B. Whether Federal Employees Are Entitled To Recover Attorney's 
Fees And costs In Title VII Administrative Proceedings Per Se
The government fails to understand at p. 9 et seg. that

"the duty of the courts [is] to make sure that the Act works,
and the intent of Congress is not hampered by a combination

25/_ Whether the district court "prompted" the informal resolution 
is immaterial; no doctrine requires judges to broker settlements.
A factor in the decision of Mr. Foster's counsel was that the 
prevailing law in the District of Columbia before this Court's
decisions in Grubbs v. Butz. __U.S. App. D.C. ___, 514 F.2d 1323
(D.C. Cir. 1975) and Hackley v. Roudebush. supra. was that federal 
Title VII trials de_ novo were not available under the Act. Of 
course, the government completely forgets that Mr. Foster's 
counsel was vindicated in his decision to accept the Library's 
offer. In opposing the award of fees, the government never raised 
(nor could it raise) any question as to his counsel's experience 
and competence, compare Walden v. Boorstin. supra.

17



of a strict construction of the statute and a battle with
semantics." Culpepper v. Reynolds Metals Co., 421 F.2d
888, 891 (5th cir. 1971). The government's contentions therefore
fall athwart the very purpose purpose of private attorney general
attorney's fees that: "If the cost of private enforcement actions
becomes too great, there will be no private enforcement. If our
civil rights laws are not to become mere hollow pronouncements
which the average citizen cannot enforce, we must maintain the
traditionally effective remedy of fee shifting in these cases,"

2 6/S. Rep. No. 94-1011, supra at 6.
1. Appellant's brief pointed out that the government's 

present position on attorney's fees in the administrative process 
is a reversal of prior policy, Brief For Appellant at p. 17 n. 19, 
assumed in the appeal of Smith v. Kleindienst, supra, which failed 
to raise the issue. See also Hammond v. Balzano, 10 EPD 5 10,333 
(D.D.C. 1975) and Bowie v. Weinberger, D.D.C. No. 74-1801 (June 
17, 1975) in which the issue similarly was not appealed by the 
government. In all three cases, the administrative proceedings 
for which there was recovery of fees occurred prior to the filing 
of suit. Appellee's brief does not explain nor justify their 
belated change of course, see infra.

26/ Appellant respectfully submits that whatever force the 
government's contentions have, they are vitiated by the citation 
of the Newman v. Piggie park Enterprise, Inc., supra, liberal 
construction standard by both committees and the House report's 
express citation of Parker v. Matthews in which Judge Richey 
expressly ruled that federal employees are entitled to attorney's 
fees for legal representation in the administrative process; the 
Court need go no further. However, we proceed to expose the 
specific fallacies in the government's contentions.

18



2. The government properly concedes that the "action" por­
tion of the § 2000e-5(k) term "any action or proceeding" adequately 
conveys Congressional intent to award fees and costs in judicial 
actions, pp. 10-11. This concession is fatal. First, appellant 
has argued and the government cannot refute that the contempora­
neous Title II attorney's fee provision, 42 U.S.C. § 2000a-3 (b) 
speaks only of "any action" because Title II's enforcement scheme 
does not provide for administrative proceedings, and that, 
therefore, § 2000e-5(k)'s reference to "proceeding" does not 
refer exclusively to judicial actions, but to administrative 
proceedings as well. This would not be so if the government could 
demonstrate that the § 2000e-3(b) "any action" needed to be supple­
mented by the further terms for another reason. The govern-

2 7/
ment cannot do so. Second, the "'curious, narrow, hidden
sense'" that the government urges should be given the phrase 
"any action or proceeding" in § 2000e-5(k) in which "or pro­
ceeding" would be entirely redundant or meaningless is to be 
avoided as a similarly awkard and oblique construction of "as 
applicable" in § 2000e-16(d) was in Chandler v. Roudebush, supra,
44 U.S.L.W. at 4712. Rather the "'plain, obvious and rational 
meaning'" of the phrase consistent with the administrative- 
judicial Title VII enforcement scheme, see Brown v. General

27/ "Had Congress wished to restrict an award of an attorney's 
fee to only suits filed in court, there would have been no need 
to add the words 'or proceeding' to 'any action' But 'proceeding' 
is a broader term than 'action' and would include an administra­
tive as well as judicial proceeding." Johnson v. United States, 
supra, 12 EPD at p. 4841; compare McMullen v. Warner, supra.12 EPD at pi 5124. — --------------- — c—

19



Services Administration, supra, is required. Third, it is an
elementary cannon of statutory instruction that "effect must
be given, if possible, to every word, clause and sentence of 28/
a statute." This is especially the case in Title VII, a re-

29/
medial statute. That the federal Title VII enforcement scheme 
under Brown v. General Services Administration, supra, is the 
sole and exclusive remedy for employment discrimination is even 
more reason to treat "proceeding" as meaningful. Fourth, the 
Supreme Court has already held that the substantive scope of 
Title VII*s remedial provision was meant to be broad even where

30/there are colorable claims of limitation, entirely absent here.
Fifth, the government does not refute that § 2000e-5(k)'s
expansive scope to any action or proceeding "under this title"
(including sections dealing with administrative proceedings)
rather than specifically to judicial action sections is also

31/
dispositive of Congressional intent. Sixth, consistent with

28/ Sutherland, 2A Statutory Construction § 46.06 (4th ed. 1974) 
at p. 63. Compare this Court's analysis of the decision to use 
"prevailing party" instead of "plaintiffs" or "any party" in Grubbs 
v. Butz, supra, 12 EPD at pp. 5058-5059.
29/ "Title VII is strong medicine and we refuse to vitiate its 
potency by glossing it with judicial limitations unwarranted by the 
strong remedial spirit of the act," Johnson v, Goodyear Tire & 
Rubber Co., 491 F.2d 1364, 1377 (5th Cir. 1974); see Love v.
Pullman Co., 404 U.S. 522 (1972).
3 0/ Franks v. Bowman Transportation Co., __ U.S. __, 47 L.Ed. 2d
444, 457-462 (1976) (seniority relief pursuant to § 2000e-5(g) may 
be awarded notwithstanding § 2000e-2(h) and failure to specify such relief in § 2000e-5(g)).
31/ Indeed the government points out that " [t]he respective pro­
visions authorizing these civil actions, 42 U.S.C. § 2000e-5(f) 
and 42 U.S.C. § 2000e-16, clearly distinguish the administrative 
and judicial levels," p. 11, so that to § 2000e-5(k) could 
readily have distingushed between the "levels."

20



the above, every district court which has considered the
government's contention in a reasoned opinion appears to

32/
have rejected it. Public Law 94-559, of course, adopts Parker
as authoritative for the Title VII and other attorney's fees
provisions, see supra, atpp. 9-10.

3. The government makes the related contentions that
"the term 'proceeding' as used in Title VII refers exclusively
to judicial proceedings," p. 11. The government cites 42 U.S.C.
§§ 2000e-5(i), 5 (j), and 6(b), but is less than candid, to say
the least. First, § 704, 42 U.S.C. § 2000e-3(a), proscribes as
"an unlawful employment practice" for an employer, employment
agency or labor organization to discriminate against an
employee, inter alia,, "because he has made a charge, testified,
assisted, or participated in any manner in an investigation,
proceeding, or hearing under this title" (emphasis added).
Statutory language, legislative history, agency construction
and caselaw, all indicate that "proceeding," like the preceding
term "investigation" and following term "hearing," refers to33/
EEOC proceedings. Congress settled the meaning of "proceeding"

32/ See Parker v. Matthews, supra, 411 F. Supp. at 1065-1066 
(contention rejected without comment); Johnson v. United States, 
supra, 12 EPD at 4841; McMullen v. Warner, supra, 12 EPD at 5124; 
see also Smith v. Kleindienst, supra; Hammond v. Balzano, supra; 
Bowie v. Weinberger. The court below also chose to rest its 
denial of fees on other grounds (A. 168-170). But see Walden v. Boorstin, supra.
33/ Rutherford v. American Bank of Commerce, 11 EPD 10,82 9 at
p. 7488-7489 (D.N.M. 1976), see also EEOC v. Salvation Army,
3 EPD 5 8090 (N.D. Ga. 1970); Barela v. United Nuclear Corp.,
462 F.2d 149 (10th Cir. 1972), affirming, 317 F. Supp. 1217 (D.N.M. 1970).

- 21



in 1972 when § 2000e-3(a) was amended, as the Conference section- 
by-section analysis described it, "to make clear that joint 
labor-management apprenticeship committees are covered by those
provisions which relate to . . .  retaliation against individuals

. . . . . .  34/participating in Commission proceedings" (emphasis added)
Second, § 709(a), 42 U.S.C. § 2000e-8(a) provides that in con­
nection with any investigation of charges, the EEOC shall have 
access to, inter alia, "any evidence of any person being investi­
gated or proceeded against that relates to unlawful employment 
practices" (emphasis added); see also § 709(b), 42 U.S.C. § 2000e 
8(b), as amended ("the Commission shall refrain from processing 
a charge") (emphasis added). Third, § 716(b), 42 U.S.C. § 2000e- 
12(b) provides that " [in] any action or proceeding based on any 
alleged unlawful employment practice," no person shall be subject 
to liability or punishment under certain good faith defenses and 
that " [s]uch a defense, if established, shall be a bar to the 
action or proceeding" notwithstanding certain judicial modifications
or rescissions (emphasis added). Nothing precludes § 716(b)?s

35/application to EEOC or state deferral agency proceedings.
Fourth, the government omits mention of § 706(b), (d) and (e),
42 U.S.C. § 2000e—5(b), (d) and (e), in the 1964 version of the
Act and § 706(b), (c) and (e), and § 709(d), 42 U.S.C. § 2000e-5(b),

3_4/ Subcomm. on Labor and Public Welfare, Legislative History of 
the Equal Employment Opportunity Act of 1972 (comm. Print 1971) at 
1849 (hereinafter "Legislative History").
35/ Cf* Caterpillar Tractor v. Grabier, 2 EPD IT 10.301 fs.D. iii. 1970): ------------------

22



(c), (e) and 8(d), as amended in 1972, 'which refer to state
or local deferral proceedings as, inter alia, "proceedings,"
"state or local proceedings," or "procedure [s]. " There simply
is no question that such proceedings include administrative 

36/
proceedings. Fifth, although § 717(b), 42 U.S.C. § 2000e~
16(b), does not refer to federal agency or U. S. Civil Service 
Commission proceedings except as included in "equal opportunity 
planfs]," "affirmative program of equal employment opportunity" 
and "action taken on any complaint of discrimination," legis­
lative history is replete with references to "complaint process," 
"complaint procedure," and "grievance procedures," see, e.g.,

3_6/ See, e.g., hove y.— Pullman Co. f supra; Voutsis v. Union 
Carbide Corp., 321 F. Supp. 830 (S.D. N.Y. 1970), reversed, 452 
F.2d 889 (2d Cir. 1971); Batiste v. Furnco Construction Corp., 350 
F. Supp. 10 (N.D. 111. 1972), reversed, 503 F.2d 447 (7th cir. 
1973). Indeed, the issue of attorney's fees for legal repre­
sentation in state deferral proceeding arose but was undecided in Batiste, 350 F. Supp. at 15.

"Whether that provision empowers this court to award 
counsel fees incurred in both state and federal 
proceedings brought to vindicate civil rights or is 
limited to fees associated only with the prosecution 
of the federal remedy is a question that need not be 
decided in order to justify the order in the instant 
proceeding, for the statute makes the award of fees 
discretionary . . .  [Looking to the circumstances of 
absence of state law conferring fees in deferral pro­
ceedings and plaintiff's election of remedies], this court is of the opinion that Illinois law and policy 
should control plaintiffs' Illinois claim and therefore 
makes inappropriate an award of counsel fees for the 
State proceedings."

Even assuming the validity of the district court's exercise of 
"discretion" under Newman v. Piggie Park Enterprises, Inc., supra, 
the two grounds of comity and election of remedies cited are 
inapplicable to federal agency administrative proceedings.
The Seventh circuit reversed the underlying judgment and remanded 
for further proceedings, leaving the attorney's fees question open 
until a determination of who are prevailing parties, 503 F.2d at 451.

- 23



H.R. Rep. No. 92-238, 92d Cong. 1st Sess. (1971) at 23-24, 
Legislative History at 83-84; S. Rep. No. 92-415, 92d Cong.
1st Sess. (1971) at 14, Legislative History at 423; Chandler 
v. Roudebush, supra;, Hackley v. Roudebush, supra; Brief for 
Appellant at 36; and infra at pp. 28-30.

4. The government's construction of "proceeding" is 
odd to say the least. Judicial notice may be taken of the 
fact that "proceeding" commonly includes administrative pro­
ceedings in United States Code, see, e.g., the Administrative

37/Procedure Act, 5 U.S.C. § 551 et seq. Indeed, Congress 
recently amended 5 U.S.C. § 6322 concerning leave for federal 
employees for jury or witness service in a "judicial proceeding," 
but went so far as to make clear that "ffjor the purpose of this 
subsection, 'judicial proceeding' means any action, suit, or 
other judicial proceeding, including any condemnation, pre­
liminary, informational, or other proceeding of a judicial nature,

38/but does not include an administrative proceeding" (emphasis added).

37/ The APA is cited in Title VII at § 716(a), 42 U.S.C. s 2000e- 12 (a).
38/ See also 5 U.S.C. § 8125; 18 U.S.C. § 205; 33 U.S.C. §§ 923(b), 
924, 927 and 928 (provisions in which term "proceedings" refers to 
administrative proceedings. Indeed, 18 U.S.C. § 205's use of "pro­
ceedings" which regulates conflicts of interest by federal officers 
or employees has been specifically construed to apply to "an 
administrative grievance proceedings, such as the EEO complaint 
procedure," Memorandum To Heads Of Departments And Agencies From 
Attorney General Edward H. Levi, dated November 20, 1975. 33 U.S.C.
§ 927 is an unmistakable provision for fees for legal repre­
sentation before the Employees' Compensation Board of the Department 
of Labor, compare Red School House, Inc, v. Office of Economic 
Opportunity, 386 F. Supp. 1177, 1195-1197 (D. Minn. 1974) (OEO 
regulations at 45 C.F.R. § 1067.2-5 provide for attorney's fees).

If Congress wanted to limit awards of fees to "proceedings 
before a court," it well knew how to do so. See, e.g., 42 U.S.C.§ 406(b) .

24



Were there doubt about the scope of "proceeding,"
"Title VII . . .  is to be accorded a liberal construction in 
order to carry out the purpose of Congress to eliminate the 
inconvenience, unfairness and humiliation of racial discrimination," 
Parham v. Southwestern Bell Telephone Co., supra, 433 F.2d at 
425; Culpepper v. Reynolds Metals Co., 421 F.2d 888, 891 (5th cir. 
1970); Wall v. Coleman, 393 F. Supp. 826 (S.D. Ga. 1975); cases 
cited supra at p. 3, n. 5.

5. The government also erroneously relies on several
non-Title VII cases construing different terms in different
statutory schemes, pp. 12-16. Thus, the court held in Meeker v.
Lehigh Valley Rv. Co.. 236 U.S. 412, 432-433 (1915) that §§ 8 and
16 of the Interstate Commerce Act's providing together with
damages, for attorney's fees "as part of the costs in the case"
and "as a part of the costs of the suit" did not permit an award
for legal representation in ICC proceedings. The Court looked
to the exclusive statutory use of "case" and "suit," and "the
absence of any reference to proceedings anterior to the action,"
236 U.S. at 432 (emphasis added). The language was significant
under the Interstate Commerce Act enforcement scheme because
fees could only be awarded with damages that were obtainable in
court only: "[i]t is only when damages are recovered by suit

39/that a fee is to be allowed," 236 U.S. at 432-433. In the

39/ Two other cases cited merely apply Meeker to the same statute, 
Mills v. Lehigh Valley Ry.. 238 U.S. 473 (1915), or an identical 
provision in a similar ' statutory scheme, Hays Livestock Com­
mission Co. v. Maly Livestock Commission, 498 F.2d 925 (10th Cir. 
1974).

25



instant case,of course, the different and broader term "any 
f «action or proceeding" is used and proceedings anterior to the

action are referred to. Moreover, the statutory scheme is
entirely different: an award of fees is not tied to damages

40/
available only in court. FCC v. Turner, __U.S. App. D.C.,
514 F.2d 1354 (1975) is similarly inapplicable because there
was provision for the FCC to award fees except "as part of the

41/costs of the case, 11 47 U.S.C. § 206 (emphasis added). if
Meeker and Turner have any application in this case, they
indicate that 42 U.S.C. § 2000e-5(k) on its face and in terms
of Title VII enforcement scheme quite clearly permits recovery

42/of attorney's fees in Title VII administrative proceedings.

40/ Section 8 of the Interstate Commerce Act also limits fees 
to "cases of recovery" and § 16 to "petitioner" and "[i]f 
petitioner shall final]y prevail."
41/ See also Fitzgerald v. U.S. Civil Service Commission, 407 F. Supp. 380, 382 (D.D.C. 1975).
42/ it also is contended that because 28 U.S.C. §§ 2412 and 1920 
limit award of costs to court costs, it would be a "strained con­
struction" to permit recovery of fees, pp. 14-15. However 28 U.S.C. 
§ 2412 expressly states that such costs do "not includfe] the fees 
and expenses of attorneys," which is what is sought here (A. 18). 
Indeed, an anomaly would result if fees and expense for the admin­
istrative process are not provided, in light of the fact that all 
other federal employees' costs in terms of docketing fees, tran­
scripts, etc. are in fact unnecessary or paid by the federal 
agencies, see generally LCR 2010-3.1 (A. 173) and 5 C.F.R. Part 713.

With respect to actual awards of attorney's fees for legal 
representation before the EEOC, the clear statutory potential is 
largely mooted as a practical matter by EEOC implementing regu­
lations that do not provide an active formal role for lawyers.
Cf. H. Kessler & Co. v. EEOC, 472 F.2d 1147 (5th Cir. 1973). In 
contrast, federal employees undergo a far more arduous set of 
administrative procedures and "at that stage a lawyer will often 
(be a] practical necessity," McMullen v. Warner, supra, 12 EPD at 
p. 5124. Brief For Appellant at 28-34; cf. Ellis v. Naval Air

26



6. Appellee's brief proceeds to discuss at length 
legislative history that is claimed to "conclusively demonstrate [ ] 
that attorney's fees for professional services at the administra­
tive level are not recoverable under 42 U.S.C. § 2000e-5(k)," pp. 
17-23. "Scant attention was focused on the attorney's fees 
provision amid the sound and fury of the extended debates on the

. . 43/1964 Civil Rights Act," Grubbs v. Butz. supra, 12 EPD at p. 5058.
Sec. 2000e-5fk) emerged intact from the 1972 amendments. In 1972,
as in 1964, "scant attention" was paid to § 2000e-5(k) because
the focus was elsewhere. Most debate on the 1972 amendments

44/centered on granting cease-and-desist power to the EEOC.
With respect to federal employment discrimination, available 
specific legislative history (the Dominick-Javits colloquy), and 
the general focus on the questionable integrity of U.S. Civil 
Service commission administrative proceedings and their relevance 
for the attorney’s fees question is reviewed in Brief For Appellant 
at 35-44. Whatever uncertainty as to the scope of § 2000e-5(k) 
is settled by the legislative history of Pub. L. 94-559, see supra

42/ (Continued)
■Rework Facility, 10 EPD 5 10,532 at p. 6222 (N.D. Cal. 1975). Appel­
lee ' s brief is silent on this other than to reiterate their erroneous legal position on the scope of the term "proceedings" in § 2000e-5 
(k) and to state that the government knows of no cases awarding 
fees in EEOC proceedings, p. 9 n. 9.
43/ The only sure indication of Congressional intent being the 
drafting difference between Title II and Title VII attorney's fees 
provisions reflecting whether administrative proceedings were pro­
vided for, and the deliberate use of the term "proceeding, " supra.
44/ See, e.g., Chandler v. Roudebush, supra, 44 U.S.L.W. at 4712- 4716. — --

27



at pp. 2-3 and 9-10.45/

Appellee, however, directs the court's attention to an
unsuccessful attempt to amend § 2000e-5(k) in order to allow
small businesses and uniops awards of attorney's fees, and, par-

46/
ticularly, the floor debate. if significant, it cuts
against the government. First, Senator Gambrell, the

45/ The express approval of Parker is entitled to areat weiohf because Congress explained the scope of § 2000e-5(k) in order to define the.scope of the new provision.
46/ On January 21, 1972, Senator Gambrell,. an opponent of cease-and-desist enforcement authority offered 
Amendment No. 810 to S.2515 that, inter alia, small 
businesses must be indemnified for attorney's fees and expenses 
of appearing before the EEOC in cease-and-desist proceedings, 
Legislative History 687-689, 790-792, see Appendix D. Senator 
Gambrell stated his belief that judicial rather than administrative 
cease-and-desist enforcement and the purpose of the amendment 
"to assure that enforcement of this legislation which must 
necessarily be selective and exploratory, does not have the effect 
of destroying small businesses," Legislative History at 688. 
Thereafter, on January 27th, Senator Gambrell offered a revision 
of his amendment, Amendment No. 833, see Appendix D. Senator 
Gambrell took the opportunity to reiterate his opposition to cease- 
and-desist authority and the purpose of "grant[ing] some relief 
to small businesses and small labor unions which may, under this 
Act, be accused of engaging in unfair, discriminatory employment 
practices which are banned by the act," Legislative History at 1013- 
1015. On January 31st, Senator Gambrell called up Amendment No.
833, Legislative History at 1177-1184. He explained the limited aim of his amendment.

"Mr. President, the Civil Rights'and Equal Employment 
Opportunity Acts themselves, which are being amended 
under the pending legislation, already provide discretionary 
authority for the Commission to pay costs and attorney fees 
to a prevailing party in such a case. In other words, 
if I am proceeded against, and I win, the Commission~can 
say 'We are sorry about the harassment we have caused, and 
we will pay your costs and attorney fees.'
"We make this change or this addition: We leave the amendment without change except that we provide for 

discretionary authority in the case of the prevailing 
party. We say that any respondent— that is, a labor union 
or an employer— who qualifies as a small business or a 
small union can be compensated for his expenses, or expenses 
and fees, even if he loses or even if he is found at fault, 
so long as it is not determined that he conducted his 
defense in a manner inconsistent with the achievement of

28



amendment's author,' had a completely opposed understanding 
of existing law. Senator Mondale's comments are not entitled
to any great weight because they are inconsistent with the

46/ (Continued)
the purposes of the act.
"Our thouqht in offering the amendment is simple. We 

feel that if a small business or a small union in good 
faith wishes to test some of the questions that are 
raised, it should have a right to do so without bank­
rupting itself. It should not have to depend upon its 
ultimately prevailing, because it could be wrong in 
good faith about the law, or it could be wrong in 
good faith about the facts. It seems to me that certainly 
in the early stages of enforcement under the act these 
questions should subject to exploration by small businesses 
in the same manner as they would be by large businesses."

Legislative History at 1178-1179 (emphasis added). Senator 
Williams opposed the amendment on the basis of cost arising 
from mandatory advance payment of fees and costs, Legislative 
History at 1184-1185. Then Senator Mondale offered a substitute 
to Amendment No. 833 which tracked it, but replaced references 
to "respondent" businesses with the term "prevailing party," 
Legislative History at 1185-1186, see Appendix D. Senator Mondale 
explained that his substitute "is designed to preserve a basically 
valid proposition in that amendment - but seeks to substitute 
language which I think is essential" and that the § 2000e-5(k) 
is unchanged except in two respects.

"The proposed substitute would liberalize that pro­
vision in two basic respects. First, it would add 
authority to award costs to the prevailing party 
with respect to the cost of a proceeding before the 
Commission. The underlying law to which I have 
referred does not permit the awarding of fees with 
r_aspe.ct to proceedings before the commission. So it 
liberalizes the fee awarding powers in that respect.
"Second, it makes awarding of such fees mandatory for 
small businesses and for unions, when they prevail before 
the Commission or before the court, rather than leaving 
it discretionary as it now is.
"Principally, Mr. President, my objection to the 

amendment offered by the Senator from Georgia is that 
while I think it justifiably recognizes the question of 
costs that may be visited on small businesses or small 
unions, it has built within it an unfortunate dimension —  
a dimension allowing Government funds to be used to finance 
resistance to legitimate cases; under the original amend­
ment, it is not necessary that the small business or the

29-



terms of the amendment. Second, the general context of
Senator Mondale and other Senate proponents of cease-and-desist 
authority, over the course of an intense month-long debate,

47/

46/ (Continued)
union be the prevailing party. Thus, they can 
take a case that is without any foundation and, 
at Government expense and for long periods of time, 
hold proceedings before the Commission or hold 
procedings [sic] before the courts and be awarded 
fees— no matter how groundless the case is.* * *
"I think that modification retains the basic validity 

of the amendment offered by the Senator from Georgia 
without risking, in addition, the problem to which I 
have made reference."

Legislative History at 1187 (emphasis added). There followed a colloquy in which Senator Gambrell insisted that the substitute 
"would wholly thwart the purpose of the amendment" and Senator 
Mondale reiterated that the substitute "greatly liberalizes" 
relief for small businesses and unions, Legislative History at 
1188-1191. There was no discussion of the different views as 
to existing law on fees for EEOC proceedings. With some modi­
fications, not here relevant, the substitute amendment passed 
72-2, Legislative History at 1190-1195. Thereafter, the cease- 
and-desist enforcement scheme was replaced with Senator's 
Dominick's compromise court enforcement proposal, see Hackley 
v. Roudebush, supra, 520 F.2d at 129. The amendment was 
deleted in conference.

The Senate amendment permitted payment of costs 
and counsel fees to small employers or labor organi­
zations if they prevailed in actions brought against 
them by the Commission or the United States. An 
employer or union with 25 or fewer employees or members 
would have been entitled to up to $5000, and an 
employer or labor organization with from 25 to 100 
employees or members whose average income from such 
employment was less than $7500, would have been 
entitled to one-half the cost of its defense up to 
$2500. The House bill had no comparable provisions.
The Senate receded."

Conference Report, Equal Employment Opportunity Act of 1972,
S. Rep. Mo. 92-681, 92d Cong., 2d Sess. (1972) at 19; Legislative 
History at 1817.
47/ Neither the amendments nor the substitute had "additional" 
language specifically providing for fees to prevailing parties 
other than small businesses and unions, other than- the phrase "the 
Commission or court, as the case may be" may award fees, 
so that, as to court awards, there is no change of

30



seeking to advance their principal object by compromise and 
limiting the impact of opponent's amendments must be con­
sidered. Third, the specific context of the comment also is 
not mentioned: ad hoc floor debate justifying a substitute that 
altered the basic thrust of Senator Gambrell's proposal, but
nevertheless had to be made palatable as "retain[ing] the basic

48/
validity of the amendment." Fourth, Senator Mondale, while on
the Senate Committee on Labor and Public Welfare, was not a
specialist in attorney's fees or employment discrimination as
Senator Gambrell who had apparently steeped himself in the fees
question and problems faced by small businesses and unions in
EEOC proceedings or Senator Dominick who was the expert on federal

49/
employment matters generally. Fifth, Senator Mondale's comments 
on existing law were offhand and not integral to Congressional con­
sideration of the substitute amendments. Had the amendments become 
law whether he or Senator Gambrell was right about prior law would 
have been of no moment, in contrast to, for example, the appli­
cation of the Title VII provision in Pub. L. 94-559 legislative

47/ (Continued)
existing terms supporting Senator Mondale's assertion that the 
amendment would liberalize prior law as to all prevailing parties. 
The substitute basically tracked the language of the second 
Gambrell version which treats awards to small businesses and unions 
as a special case because prevailing parties could recover fees in 
administrative proceedings. Senator Mondale also never explained 
the inconsistent use of the term "proceeding" in § 2000e-5(k) and 
his own use of "proceedings before the Commission" and "proceeding 
before the courts" in speaking of § 2000e-5(k) and the amendment.
48/ See, e_.g_. , Hackley v. Roudebush, supra, 520 F.2d at 129-131; 
Chandler v. Roudebush, supra, 44 U.S.L.W. at 4714-4715.
49/ Compare the treatment of contradictory comments by Senators 
William and Dominick on the trial de novo question in Chandler v. 
Roudebush, supra, 44 U.S.L.W. at 4715 n. 36; Hackley v. Roudebush, 
supra, 520 F.2d at 146-147.

31



history. Thus, he and Senator Gambrell focused on the key 
aspect, adequate assistance for small businesses and unions, 
and did not discuss their different views of existing law. The 
Conference report mentioned only the adequate assistance aspect 
of the amendment. Sixth, both Senators agreed as to what the law 
should be on the basis of that part of the amendment that essentially 
left the existing statutory terms intact; the Conference section- 
by-section analysis described the Senate receding only from the 
mandatory award part of the amendment. Thus, if significant, 
this 1972 legislative history is consistent with appellant's 
position.

7. Award of fees for legal representation in administrative
proceedings advances the statutory purposes set forth in Title 

50/
VII. First, the government contends that recovery "will
not necessarily advance [the Congressional] policy [against 
employment discrimination]," p. 23, by extolling the virtues 
of the administrative process. Legal representation in quasi­
judicial proceedings in which management's representative "will

51/
more than likely be an attorney" obviously will both safe­
guard the interests of complainant and promote the integrity 
of the proceedings. Of course, this Court has found that 
lawyers are needed to protect, much less advance, employees'

50/ Brief For Appellant at pp. 37-44; see also Newman v. Piggie 
Park Enterprises, Inc., supra, 390 U.S. at 402; Grubbs v. Butz, 
supra.
51/ Hackley v. Roudebush, supra, 520 F.2d at 140 n. 130.

32



Title VII rights. Second, that management is provided with52/

legal counsel,and that the agencies expressly recognize the need
53/and provide severely limited access to legal representation,

undermine the claim that lawyers are not required. Third, Mr.
Foster obtained counsel only after much difficulty three days
before his right to sue would have expired (A. 81); the govern-

54/ment was unable to show below that other lawyers were available.
The 507 page transcript of the administrative hearing at which
management was represented by two Library of Congress lawyers

55/and nature of memoranda submitted on reconsideration, gives the 
lie to the government's claims. Fourth, any reliance on Alyeska 
Pipeline Service Co. v. Wilderness Society, supra, and Runyan 
v. McCrary. 44 U.S.L.W. 5034 (Sup. Ct. June 25, 1976), pp. 28-29, 
simply has no basis and especially after the emphatic Congressional 
response in Pub. L. 94-559.

52/ See Hackley v. Roudebush, supra, 520 F.2d at 137-141 and 171 
(Leventhal, J., concurring).

53/ See Brief For Appellant at 15-16, 30-32.

54/ For limitations on legal representation by volunteer 
government lawyers, see Brief For Appellant at 45. The D.C.
Bar Employment Complaint Service does not "provide free legal 
representation in discrimination cases," p. 26, see Appendix 
E. Indeed, Mr. Foster's counsel was obtained through the 
Complaint Service,and attorney's fees awards would assist the 
work of the Service in obtaining counsel for employees in 
administrative proceedings.
55/ See Appendix Containing Supplemental Record On Appeal at pp. 25-531 and pp. 532-565.

33



8. As to 42 U.S.C. § 2000e-16(b), the denial of
56/attorney's fees by the Library was illegal. Section 2000e-

16(b) must be read in light of § 2000e-5(k), and agency
construction of § 2000e-16(b) to empower agency measures that
provide complainant employees with unequal and severely

57/limited opportunities for legal representation.

CHARLES STEPHEN RALSTON 
MELVYN R. LEVENTHAL 
ERIC SCHNAPPER 
BILL LANN LEE 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

SHALON RALPH
8601 Springdell Place 
Chevy Chase, Maryland 20015

Attorneys for Appellant

56/ See Brief For Appellant at 44-51.
57/ Moreover, § 2000e-16(b), like § 2000e-5(g) remedial provision, 
does contemplate awards of fees since it is based on § 10(c) of 
the NRLA, 29 U.S.C. § 160(c), that has long been construed to 
permit recovery of fees by complainants in NLRB proceedings in 
circumstances of bad faith defense. See, e.g., NLRB v. Food 
gtore Employees, 417 U.S. 1, 8-9 (1974); see also Albemarle Paper 
Co. v. Moody, 422 U.S. 405, 418-423 (1975) ("make whole" purpose); 
Franks v. Bowman Transportation Co., U.S. , 47 L.Ed. 2d 444 464-465 (1976). --

34



APPENDIX A

Be it enacted by the Senate and House 
of Representatives of the United States of 
America in Congress assembled. That this 
Act may be cited as "The Civil Rights At­
torney's Fees Awards Act of 1976".

SEC. 2. That the Revised Statutes 
section 722 (42 U.S.C. 1988) is amended 
by adding the following: "in any action or 
proceeding to enforce a provision of sections 
1977, 1978, 1979, 1980, and 1981 of the 
Revised Statutes, title IX of Public Law 
92-318, or in any civil action or proceeding, 
by or on behalf of the United States of 
America, to enforce, or charging a viola­
tion of, a provision of the United States 
Internal Revenue Code, 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 fee as part of the costs".



J
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P\ P  £  aJ D  IX

Calendar No. 9 5 5
94th  Congress 

2d Session } SENATE REPORTNo. 94-1011

CIVIL RIGHTS ATTORNEYS’ FEES AWARDS ACT

June 29 (.legislative day. June IS), 1970.—Ordered to be printed

Mr. T unney , from the Committee on the Judiciary, 
submitted the following

R E P O R T
[To accompany S. 2278]

The Committee on the Judiciary, to which was referred the bill (S. 227S) to amend Revised Statutes section 722 (42 U.S.C. § 1988) to allow a court, in its discretion, to award attorneys' fees to a pre­vailing party in suits brought to enforce certain civil rights acts, having considered the same, reports favorably thereon and recommends that the bill do pass.The text of S. 2278 is as follows:
S. 227S

Revised Statutes section 722 (42 U.S.C. Sec. 198S) is ■ amended by adding the following: “In any action or pro­ceeding to enforce a provision of sections 1977, 1978, 1979, y 1980 and 19S1 of the Revised Statutes, 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 fee as part of the costs.”.
P u r p o s e

This amendment to the Civil Rights Act of 1866, Revised StatutesSection 722, gives the Federal courts discretion to award attorneys'fees to prevailing parties in suits brought to enforce the civil rights acts which Congress has passed since 1866. The Ipurpose of this amend­ment is to remedy anomalous gaps in our civil rights laws created by the United States Supreme Court's recent decision in Alyeska Pipeline  
Service Co. v. Wilderness Society, 421 U.S. 240 (1975), and to achieve consistencv in.our civil rights laws.

57-010

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H istory of the L egislation

The bill grows out of six clays of hearings on legal fees held before the Subcommittee on the Representation of Citizen Interests of this Committee in 1973. There were more than thirty witnesses, including Federal and State public officials, scholars, practicing attorneys from many areas of expertise, and private citizens. Those who did not appear were given the opportunity to submit material for the record, and many did so, including the representatives of the American Bar Association and the Bar Associations of 22 States and the District of Columbia. The hearings, when published, included not only the testimony and exhibits, but numerous statutory provisions, proposed legislation, case reports and scholarly articles.In 1975, the provisions of S. 2278 were incorporated in a proposed amendment to S. 1279, extending the Voting Rights Act of 1965.The Subcommittee on Constitutional Rights specifically approved the amendment on June 11, 1975, by a vote of 8-2, and the full Committee favorably reported it on July 18, 1975, as part of S. 1279. Because of time pressure to pass the Voting Rights Amendments, the Senate took action on the House-passed version of the legislation. S. 1279 was not taken up on the Senate floor; hence, the attorneys' fees amendment was never considered.On July 31, 1975, Senator Tunney introduced S. 2278, which is identical to the amendment to S. 1279 which was reported favorably by this Committee last summer.Shortly thereafter, similar legislation was introduced in the House of Representatives, including H.R. 9552, which is identical to S. 227S except for one minor technical difference. The Subcommittee on Courts, Civil Liberties and the Administration of Justice of the House Judiciary Committee has conducted three days of hearings at which the witnesses have generally confirmed the record presented to this Committee in 1973. H.R. 9552, the counterpart of b. 2278, has received widespread support by the witnesses appearing before the House Subcommittee.
Statement

y
The purpose and effect of S. 2278 are simple— it is designed to allow courts to provide the familiar remedy of reasonable counsel fees to prevailing parties in suits to enforce the civil rights acts which Congress has passed since 1866. S. 2278 follows the language of Titles II and VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000a-3(b) and 2000e- 5(k), and section 402 of the Voting Rights Act Amendments of 1975, 42 U.S.C. § 1973f(e). All of these civil rights laws depend heavily upon private enforcement, and fee awards have proved an essential remedy if private citizens are to have a meaningful opportunity to vindicate the important Congressional policies which these laws contain.In many cases arising under our civil rights laws, the citizen who must sue to enforce the Taw has little or no money with which to hire a lawyer. If private citizens are to be able to assert their civil rights, and if those who violate the Nation's fundamental laws are not to proceed with impunity, then citizens must have the opportunity to recover what it costs them to vindicate these rights in court.

S.R. 1011

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S5 htaself alone but also as a “private attorney ge??J> ■ vindicating a policy that Congress considered of the nicer

f c ^ U s ?  ? f i , S « S S .
relief under Title II.” N ew m an v. Piggie Park Enterprises,
Inc., 390 U.S. 400, 402 (196S).iSSSSggggggg

s s s = s s f  s ^ e i i sServicemen’s Readjustment Act of 9o8; SŜ U-bA,. ^ ^ d  
Communications c o > - q ' ĝg4 (c) Jn cases under these

?o°umnPd1:“n“ aWunionr the Labor-Management 
Reporting and Disclosure Act (Landnim-Gnffin),

Not to award counsel fees in cases such as this would be tantamount to repealing the Act itself by frnstratin ^  basic purpose. * * * Without counsel fees the °l Udora
jurisdiction is but an empty gesture of pd CD 1972)U.S. 1 (1973), quoting 462 F. 2d n l , <80-81 (2d Uir. w i t ) .

The remedy of attorneys’ fees has always been recognized as par-

effective remedies available to achieve the g . •> • l*. i-w theUws ‘ The very first attorneys’ fee statute was a civil rights law, the
fees’̂l'hree's^pande^ovMo^’protecting vô nĝ righted meyS>

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provisions were eliminated In ISM. 2S Slot. 36.

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y

E.g., Title VIII of the Civil Rights Act of 196S, 42 U.S.C. § 3612(c);the Emergency School Aid Act of 1972, 20 U.S.C. § 1617; the EqualEmployment Amendments of 1972, 42 U.S.C. § 2000e-16(b); and theVoting Rights Act Extension of 1975, 42 U.S.C. § 1973f(e).These fee shifting provisions have been successful in enabling vigorous enforcement of modern civil rights legislation, while at the same time limiting the growth of the enforcement bureaucracy. Before May 12, 1975, when the Supreme Court handed down its decision in 
Alyeska P ipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975), many lower Federal courts throughout the Nation had drawn the obvi­ous analogy between the Reconstruction Civil Rights Acts and these modem civil rights acts, and, following Congressional recognition in the newer statutes of the “private attorney general” concept, were exercising their traditional equity powers to award attorneys' fees under early civil rights laws as well.3These pre-Alyeska decisions remedied a gap in the specific statutoryprovisions and restored an important historic remedy for civil rights violations. However, in Alyeska, the United States Supreme Court,while referring to the desirability of fees in a variety of circumstances, ruled that only Congress, and not the courts, could specify which laws were important enough to merit fee shifting under the “private attorney general” theory. The Court expressed the view, in dictum, that the Reconstruction Acts did not contain the necessary congres­sional authorization. This decision and dictum created anomalous gaps in our civil rights laws whereby awards of fees are, according to Alyeska, suddenly unavailable in the most fundamental civil rights cases. For instance, fees are now authorized in an employment discrimination suit under Title VII of the 1964 Civil Rights Act, but not in the same suit brought under 42 U.S.C. § 1981, which protects similar rights but involves fewer technical prerequisites to the filing of an action. Fees are allowed in a housing discrimination suit brought under Title VIII of the Civil Rights Act of 1968, but not in the same suit brought under 42U.S.C. § 1982, a Reconstruction Act protecting the same rights. Like­wise, fees are allowed in a suit under Title II of the 1964 Civil Rights Act challenging discrimination in a private restaurant, but not in suits under 42 U.S.C. § 1983 redressing violations of the Federal Constitu­tion or laws by officials sworn to uphold the laws.This bill, S. 2278, is an appropriate response to the A lyeska decision.It is limited to cases arising under our civil rights laws, a categoryof cases in which attorneys fees have been traditionally regarded as appropriate. It remedies gaps in the language of these civil rights laws by providing the specific authorization required by the Court in 
A lyeska . and makes our civil rights laws consistent.It is intended that the standards for awarding fees be generally thesame as under the fee provisions of the 1964 Civil Rights Act. A party seeking to enforce the rights protected by the statutes covered byS. 2278, if successful, “should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” 
New m an v. Piyyie P ark Enterprises, Inc., 390 U.S. 400, 402 (1968).4

1 These civil rights cases are too numerous to cite here. See, c.e.. Sims v. Amos 310 F. Supp. 691 (M.D. 
Ala. 1972), aff’d. 400 U.S. 942 (1972); Stanford Daily v. Zurcher, 366 F. Supp. 18 (N.D. Cal. 1973); and cases 
cited in Alyeska Pipeline, supra, at u. 46. Many of tho relevant cases are collected in “Hearings on the Effect 
of Legal Fees on the Adequacy of Representation Before the Subcom. on Representation of Citizen Interests 
of the Senalo Cormn. on the Judiciary," 93d Cong.. 1st scs?.. pt. III. at pn. SSS-1024, and 1060-62.

4 In the largo majority of eases the party or parties seeking to enforce such riclits will be the plaintiffs 
and/or plaintiff-intervenors. However, In the procedural posturo of some cases, tho parties seeking to enforce 
such rights may be the defendants and/or defendant-intervenors. See, c.c., Shelley v. Kranner, 334 U.S. 
1 (1948).

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Such “private attorneys general” should not be deterred from bringing good faith actions to vindicate the fundamental rights here involvedby the prospect of having to pay their opponent’s counsel fees should they lose. Richardson v. Hotel Corporation of America, 332 F. Supp. 519 (E.D. La. 1971), aff'd, 468 F. 2d 951 (5th Cir. 1972). (A fee award to a defendant’s employer, was held unjustified where a claim of racial discrimination, though meritless, was made in good faith.) Such a party, if unsuccessful, could be assessed his opponent’s fee only where it :s shown that his suit was clearly frivolous, vexatious, or brought for harassment purposes. United States Steel Corp. v. United States, 385 F. Supp. 346 (W.D. Pa. 1974), aff’d,_9 E.P.D. f 10,225 (3d Cir. 1975). This bill thus deters frivolous suits bv authorizing an award of attorneys’ fees against a party shown to have litigated in “bad faith” under the guise of attempting to enforce the Federal rights created by the statutes listed in S. 227S. Similar standards have been followed not only in the Civil Eights Act of 1964, but in other statutes providing for attorneys’ fees. E.g., the Water Pollution Control Act, 1972 U.S. Code Cong. & Adm. News 3747; the Marine Protection Act, Id. at 4249-50; and the Clean Air Act, Senate Report No. 91-1196, 91st Cong., 2d Scss., p. 483 (1970). Sec also H utchinson v. W illiam  Barry, 
Inc., 50 F. Supp. 292, 298 (D. Mass. 1943) (Fair Labor Standards Act).In appropriate circumstances, counsel fees under S. 2278 may be awarded pendente lite. See Bradley v. School Board of the City of 
Richmond, 416 U.S. 696 (1974). Such awards are especially appropriate where a party has prevailed on an important matter in the course of litigation, even when he ultimately does not prevail on all issues. Seê  Bradley, supra; M ills v. Electric A uto-L ite Co., 396 U.S. 375 (1970). Moreover, for purposes of the award of counsel fees, parties may be considered to have prevailed when they vindicate rights through a consent judgment or without formally obtaining relief. 
Kopet v. Esquire Realty Co., 523 F. 2d 1005 (2d Cir. 1975), and cases cited therein; Parham v. Southwestern Bell Telephone. Co., 433 F. 2d 421 (8th Cir. 1970); Richards v. Griffith Rubber M ills, 300 F. Supp. 33S (D. Ore. 1969); Thomas v. Honeybrook M ines, Inc., 428 F. 2d 981 (3d Cir. 1970); A spira  of N ew  York, Inc. v. Board of Education  
of the City o f N ew  York, 65 F.R.D. 541 (S.D.N.Y. 1975).In several hearings held over a period of years, the Committee has Uound that fee awards are essential if the Federal statutes to which227S applies are to be fully enforced.3 We find that the effects of such fee awards are ancillary and incident to securing compliance ■with these laws, and that fee awards are an integral part of the remedies necessary to obtain such compliance. Fee awards are there­fore provided in cases covered by S. 2278 in accordance with Congress’ powers under, inter alia, the Fourteenth Amendment, Section 5. As with cases brought under 20 U.S.C. § 1617, the Emergency School Aid Act of 1972, defendants m these cases are often State or local bodies or State or local officials. In such cases it is intended that the attorneys’ fees, like other items of costs,6 will be collected either directly from the official, in his official capacity,7 from funds of his agency or under his control, or from the State or local government (whether or not the agency or government is a named party).

5 See. e.c., “Hearinss on the Effect ol Legal Fees.” sunra.
• Fairmont Creamery Co. v. Minnesota, 275 U.S. 1G3 (1027).
1 Proof that an official had acted in had faith could also render him liable for fees in his individual caoaoity, 

under the traditional had faith standard recognized by the Supreme Court in Alurska. Sea Class v. Norton. 
505 F. 2d 123 (2d Cir. 1074); Doe v. Poelker, 515 F. 2d 541 (Sth Git. 1075).

S.K. 1011

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governed by the same stand^m Js^hirl 6̂eS a^ rdcd under S- 2278 be 
complex Federal litigation simh as a n tS ™ ^  m 0ther, t7Pes of equally 
because the rights Involved may be nonne^ andnofc be reduced 
appropriate standards, see J T  'X  “  nature. The
4 W 2“  7X4 f f S T S  ^ 7 4 ^ " “ " T- ^
Stanford D aily v. ZurcAerF ReD ° S S % ‘Spl̂edI m such cases as 
County o f Los Angeles, 8 E.P.D * 9 4 4 4  / C D P i  S L 1974); D a™

IS traditional with attorneys conipeMaS^v1??1®8 Sh°uId b? Paid’"as
eXPended °n a ******* '^T ^a fs^Z

Fed?1? 1 requb'emeilS°thatrthTluprrmrCounlilt T'Y imeetS the
S t e d T e e ?  ~  f i S * 2^  JT d~ ^decision. It does not d T n g e t h e fc°-the C° ^ ’s Mav protection of civil rie-hfs aL„T ht.atutorv provisions regarding the 
are necessary if citizens are t̂ be abl̂ tô f? f66 awards wilicd ance with these existing statnfeq Ti effectively secure compli-
Federal laws which are selfi “e0uiiS EiT  ̂  fevr, prov'isions * our on governmental action and, in some ifes™™ “ • Z he la-ws dePends the courts. If the cost of private enft^’ 0n pnvate action through great, there will be no private enWemf f Z  actlon-s bec°mes too are not to become merePhollow nronnZZ If,our1?1̂ 1 rights laws citizen cannot enforce we musr miint ■ jL™en ŝ which the average remedy of fee shifting’in these c2es he tradltionalJy effective
Changes in  E xisting L aw M ade by the B ide A re I talicized

R E V ISE D  ST A T U TE S § 722, 42 U .S .C . § 1 9 8 8

■ disfcldct courts by theZovisions oTthhf ch matters ,c2?ferred on the protection of all persons in the United S t a Z Z Z  1S’ for tbe
wS rf w t ir ,vindication, shall be exercised a S  1  “  f1Vl1 rights- and ^ fch the laws of the United S t a t e s ^ f o r c e d  in conformity
fc° canT the same into effect- but’in „n S SUcb, au’s are suitableadapted to- the object, or are deficit i f t h ^ n  ^  th ey are not furnish suitable remedies and Dunish offer, Pr.0visi0ns necessary to 
l*w ’ as modified and chan^edZtho r n ^  a?ainsfc lau'- tha common State wherein the court f e ^ & f f i ltUnVou “»d.«^‘t« of the cause is held, so far as the <;nmaJ 1 • °- 3uch Clvd or criminal
tution and laws of the United States'shZh^^^^Zh the Consti' the said courts in the trial and rli-nZ be.exdendcd to and govern 
of a criminal nature, in heinflict feff"" .°f the CaU5e' Qnd- lf ^  is ĝffty.'’ I n  any action or ° n the part̂  foû d
1977, 1978, 1979 1980 and 1 n evf or, ce a provision of sections 
C M  Rights A s l v / m T u L J l / t t  <"• r u d v u u i
cathng party, c t i tr  than The ™i? a" m > <*« ?r<-

pan Of the costs. United States, a reasonable attorney’s fee

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L ost op L egislation

The Congressional Budget Office, in a letter dated March 1 1976 has advised the Judiciary Committee that: “Pursuant to Section 403 
Ofi\C0nSr?SS10?Q of 1974- the Congressional Budget
parties in suits' “ b'" l° *'Vlrd “Uom^ s' fces to Prev*iltaS
“Based on this review, it appears that no additional costs to the government would be incurred as a result of the enactment of this

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04tu CONGRESS2t> Session H. R. 15460

IN THE HOUSE 0E REPRESENT AT1VES

Seitejiheii 8 ,197G
Mr. D rinan (for himself, Mr. K astknmkikk, Mr. D anielson, Mr. B adillo, 

Mr. P attison of New York, Mr. Railsuack. and Mr. W iggins) introduced 
the following bill; which was referred to the Committee on the Judiciary

A BILL
To allow the awarding of attorney's fees in. certain civil

rights cases.

1 • Be it enacted b'J the Senate and House uj Be presen ta-

2 lines of the United Stales of America in Conyress assembled,

3 y That this Act may he cited as “The Civil Rights Attorney’s

4 Fees Awards Act of 197G”.

5 Sec. 2. That the Revised Statutes section 722 (42

6 U.S.O. 1988) is amended by adding the following: “In

7 any action or proceeding to enforce a provision of sections

8 1977, 1978, 1979, 1980, and 1981 of the Revised Statutes,

9 title IX  of Public Law 92-318, or title VI of the Civil Rights

10 Act of 19G4, the court, in its discretion, may allow the

11 prevailing party, other than the United States, a reasonable

12 attorney’s fee as part of the costs.” .

I
8! b



' M a t Mi

94th  C ongress 
5c? Session

HOUSE OF REPRESENTATIVES

THE CIYIL RIGHTS ATTORNEYS FEES AWARDS ACT
' OF 1976

1976.—Committed to the Committee-of the Whole House on the 
State of the Union and ordered to be printed

from the Committee on the Judiciary, t •» / submitted the following
R E P O R T

[Including cost estimate of the Congressional Budget Office]

[To accompany H.R. 15460]

The Committee on tlle Judiciary, to whom was referred the bill (H.R. 15460) to allow the awarding of attorney’s fees in certain civil rights cases, having considered the same, report favorably thereon without amendment and recommend that the bill do pass.
P urpose of the B ill

H.R. 15460, the Civil Rights Attorney’s Fees Awards Act of 1976, authorizes the courts to award reasonable attorney fees to the prevail­ing party in suits instituted under certain civil rights acts. Under existing law, some civil rights statutes contain counsel fee provisions, while others do not. In order to achieve uniformity in the remedies provided by Federal laws guaranteeing civil and constitutional rights, it is necessary to add an attorney fee authorization to those civil rights acts which do not presently contain such a provision.The effective enforcement of Federal civil rights statutes depends 0 j £he efforts of private citizens. Although some agencies of the United States have civil rights responsibilities, their authority and resources are limited. In many instances where these laws are violated 
•u 1S I??cesŝ,I7 ̂ or citizen to initiate court action to correct the illegality. Unless the judicial remedy is full and complete, it will remain a meaningless right. Because a vast majority of the victims of civil rights violations cannot afford legal counsel, they are unable to present their eases to the courts. In authorizing an award of reason- able- attorneys fees, H.R, 15460 is designed to give, such persons effective access to the- judicial process where their grievances can be resolved according to law.

87-008



Tb A lveska  P ipeline  Service Carp v. W ilderness S o c ie ty , 421 U.S. 240 (1975)Ahe Supreme Court held that federal courts do not hare the power to award attorney's fees to a prevailing party unless an Act of Congress expressly authorizes it-1 In the A ly e sk a case, the plain sought to prevent the construction of the Alaskan pipeline because of the damage it would cause to the environment. Although the plamtitfs succeeded in the early stages of the litigation. Congress later ov er­turned that result by legislation permuting the construction of the pipeline. Nonetheless the lower federal courts awarded the plamtifls their attorney’s fees because of the service they had performed in the public interest. The Supreme Court reversed that award on the baas of the “American Rule’’: that each litigant, victorious or otherwise,
m Altkodghrt\?e°I&eS'S involved only environmental concerns, the decision barred attorney fee awards in a wide range> of cases, including civil rights. In fact the Supreme Court, in footnote 46 of 
th e  Alye°ska opinion, expressly disapproved a number of lower court decisions involving civil rights which had awarded tees without statutorv authorization. Prior to A lyeska, such courts had allowed tees on theTheory that civil rights plaintiffs act as -private attorneys general” in eliminating discriminatory practices adversely effecting aU citizens, white and non-white. In 1968, the Supreme Court had approved the “private attorney general” theory when it g ous construction to the attorney tee provision m Title II of the Civil Rio-hts Act of 1964. N ew m an v. P iggie P a rk  E n terprises, Inc., 390 
U.S. 400 (1968) .2 The Court stated:

If (the plaintiff) obtains an injunction, he does so not for himself alone but also as a “private attorney general, Vindicating a policy that Congress considered of the highest 
importance. Id . at 402.

However, the Court in A lyeska rejected the application of that theory to the award of counsel fees in the absence of statutory author­ization. It expressly reaffirmed, however, its holding m  N ew m an that in civil rights cases where counsel fees are allowed by Congress, ffhe award should be made to the successful plaintiff absent exceptional 
circumstances.” A lyeska case,. supra:at 262.'In the hearings conducted by the Subcommittee on Courts, Civil Liberties, and the Administration of Justice, the testimony indicated that civil rights litigants were suffering, very severe hardships because of the A lyeska decision. Thousands of dollars m fees were auto­matically lost, in the immediate wake of the decision P̂̂ sentati of the Lawyers Committee for Civil Rights Under Law, the Council
1 The Court tn ve» U «  U w ^ w f o r

ln*b*rffaltn : and’(3> whew 205 (1*72), the Supreme
> In TratncanU r. M etropolitan according broad '.•standing” to per-

the Sederal FMr 1501151118 A0t- 4
XJ. S. Cl* 5601-3619.

• C- jr •



for Public Interest Law, the American Bar Association Special Com­mittee on Public Interest Practice, and witnesses practicing in the field testified to the devastating impact of the case on litigation in the civil rights area. Surveys disclosed that such plaintiffs were the hardest nit by the decision.? The Committee also received evidence that private lawyers were refusing t,o take certain types of civil rights cases because the .civi} rights bar, already short of resources, could not afford to do so. Because of the .compelling need demonstrated by the testimony, the Committee decided to report a bill allowing fees t'6 pre­vailing parties ip certain civil fights cases. 'It shopld be noted that the United States Code presently contains oyer fifty provisions for attorney fees in a wide variety of statutes. See Appendix A. In the past few years, the Congress has approved such allowances in the areas of antitrust, equal credit, freedom of in­formation, voting rights, and consumer product safety. Although the recently enacted civil rights statutes contain provisions permitting the award of counsel fees, a number of the older statutes do not. It is to these provisions that much of the testimony was directed. •
B . H ISTO RT OF H .R . 1 5 4 6 0

At the time of the Subcomittee hearings on October 6 and 8, and Dec. 3,1975, three bills were pending which dealt expressly with coun­sel fees in civil rights cases: H.R. 7828 (same as H.R. 8220) ; HR. 7969 (same as H.R. 8742); and H.R. 9552. H.R. 7828 and H.R. 9552 would allow attorney fees to be awarded in cases brought under spe­cific provisions of the United States Code, while H.R. 7969 would permit such awards in any case involving .civil or constitutional rights, no matter what the source of the claim. H.R. 782S was stated in mandatory terms; H.R. 9552 and H.R. 7969 allowed discretionary awards. The Justice Department, through its representative. Assistant Attorney General Rex Lee of the Civil Division, expressed its support of H.R. 9552. Hearings held in 1973 by the Senate Judiciary Sub­committee on the Representation of Citizen Interests also highlighted the need of the public for legal assistance in this and other-areas.In August, 1976, the Judiciary Subcommittee on Courts, Ciyil Liberties, and the Administration of Justice concluded that a bill to allow counsel fees in certain civil rights cases should be reported favorably in view of the pressing need. On August 26, 1976, the Sub- comxmttee approved H.R. 9552 with an amendment in the nature of a substitute because it was similar to S. 2278, which had cleared the Senate Judiciary Committee and was $ waiting action by the full Senate.̂ he amendment in the nature of a substitute sought to conform H.R. 9552 technically to S. 2278; no substantive changes were made. It was then reported unanimously by the Subcommittee.On September 2, 1976, the full Committee approved H.R. 9552, as amended, with an amendment offered by Congresswoman Holtzman and accepted by the Committee. That amendment added title IX of Public Law 92-318 to the substantive provisions under which success­ful litigants could be awarded counsel fees, The Committee then



-̂LiU'WTf.

ordered that a clean bill be reported to the -House..H.R. 15460, the clean-bill, was introduced on- September 8 and approved pro forma 
by the Committee on September 9, 1976.*
.. t, . c. BCOPE OP T H E  BILL

- HR. 15460, the Civil Rights Attorney’s Fees Awards Act of 1976, wouid amend Section 722 (42 U.S.C. 1988) of the Revised Statutes to allow the award of fees in certain civil rights cases. It would apply to actions brought under seven specific section of the ftatos• Code.® Those provisions are: Section 1981, 1982, 1983, 19bo, iy»b, a 
ooood et sea of Title 42; and Section 1681 et seq. of Title 20. See Appendix B for full texts. The affected sections of Title 42 generally prohibit denial of civil and constitutional rights m  a variety °f areas, while the referenced sections of Title 20 deal with discrimination on• account of sex, blindness, or visual impairment in certain education
■PISSSIsp^SyJ sStion 1981 is frequently used to chaUe£ ^ “‘ ployment discrimination based on race or color. JofoM on v. R a ilw a y  
T J ^ e s s  A gency, Inc., 421 U.S. 454 (1975).® Under that section the Supreme Court recently held that whites as well as blacks could brm suit alleging raciallv discriminatory employment practices. M cD onald  
v. S a n ta  Fe T ra il Transporta tion  Co., — :— - U.S. ■ - , p -2574 (1976). Section 1981 has also been cited to attack exclusionary admissions policies at recreational facilities. T illm a n  y . W heaton-  
H aven  R ecreation A a vn , Inc., 410 U.S. 4ol (19 *3). Sect̂  198; h regularly used to attack discrimination ̂  property transactions, sue as the purchase of a home. Jones v. A lfr e d  3 .  M ayer Co., 392 U.S. 409
Ŝection 1983 is utilized to .challenge official discrimination, such as racial segregation imposed by law. B ro w n v. B oard o/ E duca tion , 347 TJ S 483 (1954). It is ironic that, in the landmark B ro w n case chal­lenging school segregation, the plaintiffs could not recover their attor- mey% fees, despite the significance of the ruling to eliminate officially
1  A part^from  the  a re ^ c h iu T a ^ n o ta f fe c tin g * th t 'f u b l ta n c e fm a d e

Cod* TIUe
Richmond School Board, 416! U .S-696 ( ) ^ ’u d one of th e  s ta tu te s  enum erated  In H .R .

t t o  th e  e x te n t a  p la in tiff  jo in s a  C l a i m . n l a l n t i f f  if i t  p revails on the  
‘l 54<!0 wi»h a claim  th a t  does n o t fh p ^ th e re fu ^ m  for th e  purpose of aw ard in g
non-fee claim , is en titled  to a determin^% , (7th  C i*  1973). In  some in stances, however,
counsel fees. Morales v. Baines, -(8® * ; v ILl . - , . ,  Question w hich th e  cou rts are  r e lu c ta n t to 
the-claim  w ith  fees CPia im t* disDOsitive Hagans v. Lavine, 415 U.S. 5-S
reso lve if th e  n o n-constittu ional claim  “  m(ly b(? aw arded  m eets th e  “ substaii-
( 19 7 4 1 : In  such cases. if r f i .*)!1!1 ^Jnra ■ United Mine Workers v. G-ibbs, 3S3 U.S. 715 
t ia l l ty ” te s t, see Dayansv ^ine.sup  e n A o u g h th e  co u rt declines to e n te r  ju d g m en t fo r 
(1966). a tto rn e y  s fees “ “ 7 ^e Jl'ow ed  p la in tif f  p revails on the non-fee claim  aris in g  o u t 
th e  p la in tiff  on th a t  claim , so lo n e a s  th e  m a i n t i n ^ e . ^  Wnrkers v. Qibbs. supra a t  725 
o f a  “common nucleus of l o t i o n  1981 and T itle  V II of th e  Civil

-9 w ith  refioect to  th e  re la tio n sh ip  'P 'dncation and L abor h as noted th a t  “ the
'R ie h ts ' A ct of 1984. the  H ouse C o m i^ rte e  f co-extenMve w ith  th e  in d iv id u a l’s
rem edies availab le  to the  Ind iv idual under c s .c . 5 if iS l. and
r ig h t  to  sue u n d er th e  Pr0^ l* " " "  r / p w t h e r  a iS  a re  n o t m u tu a lly  exclusive.”  H .R . Rept. l^VoH^V^ISzndcSSt lOTl" T h a t view w as adopted  by th e  Suprem e
C ourt "in”./ohnsonv. Cxaress ̂ n^ - ^ â s2 and T itle  V H I of the  Civil R ig h ts
i A Aof m W e  i lm l la r l t le ,  and differences In coverage
A'd  enforcem ent*m echanism . See Jones V. Mayer Co., supra.



. . ?

imposed segregation. Section 1983 has also been employed to challenge unlawful official action in non-racial matters. For example, in Harper- 
v. V irg in ia  S ta te  B oard  o f  E lections, 383 U.S. 663- (1966), indigent plaintiffs- successfully challenged as unconstitutional the imposition- * of a poll tax in state and local elections. In M onroe v. P a p e, 365 U.S.- 167 (1961), a private citizen sought damages against local officials for an unconstitutional search of a private residence. See also E lro d v.
B u m s, — —  U.S.-- , 96 S. Ct. 2673 (June 28,1976) (discriminationon account of political affiliation in public employment); O 'C onnor  v. D onaldson, 422 U.S. 563 (1975) (terms and conditions of institu­tional confinement).Section 1985 and 1986 are used to challenge conspiracies, either public or private, to deprive individuals of the equal protection of the laws. See Griffin v. B reckenridge, 403 U.S. 88 (1971). The bill also- covers suits brought under Title IX of Public Law 92-318, the Educa­tion Amendments of 1972, 20 U.S.C. 1681-1686. Title IX forbids spe­cific kinds of discrimination on account of sex, blindness, or visual impairment in certain federally assisted programs and activities re­lating to education. Finally H.R. 15460 would also apply to actions arising under Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d-2000d-6.10TitleVI prohibits the discriminatory use of Federal funds, requir­ing recipients to administer such assistance without regard to race,; color, or national origin. L a u v. N icho ls, 414 U.S. 563 (1974); H illsv. G a u trea u x ,-- U.S.---, 96 S. Ct. 1538 (April 20, 1976) ; A d a m sv. R ichardson, 480 F. 2d 1159 (D.C. Cir. 1973) ; B ossier P arish  School 
B oard v. L em on, 370 F. 2d 847 (5th Cir.), cert, den ied, 388 U.S. 911 (1967) ; L a u fm a n v. O akley B u ild in g  and L oan  C o 408 F. Supp. 489 (S.D. Ohio 1976).

D. DESCRIPTION OF H .R . 1 5 4 6 0

As noted earlier, the United States Code presently contains over fifty provisions for the awarding of attorney fees in particular cases. They may be placed generally into four categories: (1) mandatory awards only for a prevailing plaintiff; (2) mandatory awards for any prevail­ing party; (3) discretionary awards for a prevailing plaintiff; and (4) discretionary awards for any prevailing party. Existing statutes allowing fees in certain civil rights cases generally fall into the fourth- category. Keeping with that pattern, H.R. 15460 tracks the language of the counsel fee provisions of Titles II and VII of the Civil Rights Act of 1964,11 and Section 402 of the Voting Rights Act Amendments of 1975.12 The substantive section of H.R. 15460 reads as follows:
- In any action or proceeding to enforce a provision of sec­tions 1977,1978,1979,1980, and 1981 of the Revised Statutes,.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 fee as part of the costs. . .

10 T itle VI of the Civil R ights Act o f l9 6 4  is the onljr substantive title  of that Act which  
does not contain a provision for attorney fees.

S i 2 S 4 £ ;  2000a- 3 (b) -(T itle II) : 4 2 U .S .C .2 0 0 0 e-o (k ) (T itle  V II). ~
12 42 U.S.C. 1973(e) (Section 402). • i

5‘



:, . •- .Ij. awards may be made to any “prevailing party allowed in'the- discretion of tKe eourt; and (t “feasdfi&ble”. Because cither statutes follow t. afe familiar with these terms and in fact hi ahd interpreted them at some leu 1 ’
1. P reva iling  p d tty
tjncier H.S. 154̂ 0, either a defendant, is: eligible to receive an. always been that _ such as the Clayton prevailing- plaintiffs the more modest approaj

support of ff.it. 9552, the precedessbr to H.R. 1:̂>0,_it_ suggested̂ an 
amendment to allow recovery < .̂Attorney General Lee thought the have a “chilling effect" on civil ri<_ _from initiating law suits. The Comriuttee .was very ...the potential impact such a phrase might have on persons seeking o vindicate these important rights under Federal law. In light of existing case law under similar provisions, however, the Committee concluded that the application of current standards to this bill will significantly reduce the potentially adverse affect on the victims of unlawful conduct who seek to assert their federal claims.Gn two occasions, the Supreme Court has addressed the question of the proper standard for allowing fees in civil rights cases. In N ew m an  v. P igg ie  P a rk  E n terp rises, Inc., 390 U.S. 400, 402 (1968) (per cu­riam), a case involving racial discrimination m a place of public ac­commodation, the Court held that a prevailing plaintiff ’should ordi­narily recover an attorney’s fee unless special circumstances would 
render such an award unjust." . > . , ,, ...Five years- later; the Court applied the same standard to the attor­ney’s fee provision contained in Section 718 of the Emergency School Aid Act of 1972,20U.S.C. 1617. N o r (Across v. 31 em pM s B oard  o f b d x i -  
cntiovu 413 TL&. 427 (1973) (per curiam). The rationale of the rule rests, upon the recognition that nearly all plaintiffs m these suits are disadvantaged persons who are the victims of unlawful diserimina ion or unconstitutional conduct. It would be unfair to impose upon them the additional burden of counsel fees when they seek to invoke the ■Jurisdiction of the federal courts. *%If successful plaintiffs were rou- tinely farced to bear their own attorneys’ fees; few aggrieved parties would be in a position to advance the public interest by invoking the injunctive powers of the federal courts." N ew m an v. Piggxe P a rk  b n -
terprises^ In c ., supra at 402.- , , , . , ,. ~ ,Consistent with this rationale, the courts have developed a different standard for awarding fees to prevailing defendants because theyclo “not appear Before the court cloaked in a mantle of public interest. 
U nited  S ta te s  S tee l Corp. v. U nited  S ta te s, 519 F.2d 359, 364 (3rd Cir. 1975). As noted earlier such litigants may,- in proper circum-

i»15 U.S.C. 15 (C lay ton  A ct) ; 7 U .S.d. 2 1 0 (f) (P ack ers  and  S tockyards A c t) .

■evailihg plaintiff hr a prevailing award of fees. Congress has not o-enerous. In about two-thirds of tlie existing statutes,• Act and the Packers and Stockyards Act, only may recover their,counsel fees.13 This bill follows iaFFwdch of other civil fights acts. .noted that when,the Jusfcicê Department testified m
only to prevailing plaintiffs. Assistant t the phrase “prevailing party" might ghts- plaintiffs, discouraging them concerned with



stances? reeover their counsel fees under H-R. 1 5 4 6 0. To avoid the po­tential “chilling effect” noted by the Justice Department and to ad­vance the public interest articulated by the ̂ preme Cô t, howeve j 
the courts have developed another test for awarding fees to Pre™  f t  defendants. Under the case law, such an award may be made only if the action is vexatious- and frivolous, or if the plaintiff has instituted it =oleIv “to harass or embarrass” the defendant. U piled  S ta tes  S tee l 
c £ p  l  U nited  States-, supra at 364. If the plaintiff is “motivated by malice and vindictiveness,” then the court may award counsel fees to the prevailing defendant. C arrion v. Y esh iva  U n iversity, 535 I.-a too tod Cir-. 19-76). Thus if the action is not brought in bad faith, sucn fees should not be allowed, See, W rig h t v  S to n e  C ontainer C j p . o U  F 2d 1058- ( 8th Cir. 1975); see also R ichardson v. H o te l Carp o f A m e r  
ic'd, 332 F. Supp. 519 (E.D.La. 1971), a f d  w ith o u t w h lis h e d  opin- 
ion, 468 F.24 951 (5th Cir. 1972). This standard will not deter plaintiffs ffotn seeking relief under these statutes, and yet will prevent their being used for clearly unwarranted harassment purposes.With respect to the awarding of fees to prevailing defendants, it should further be noted that governmental officials are frequently the defendants in cases brought under the statutes covered by H.K. 15460. See, eig:, B ro w n v. B o a rd  o f E duca tion , .supra; G a u trem x v. 
H ills , iu p ra ;  O 'Connor v. Donaldson, supra. Such governmental enti­ties and officials have substantial resources available to them through funds in the common treasury, including the taxes paid by the Pon­tiffs themselves, Applying the same standard of recovery to such de­fendants would further widen the gap between citizens and govern­ment officials and would exacerbate the inequality of litigating strength. The greater resources available to governments provide an ample base from which f<tes ean be awarded to the prevailing plaintiff in suits against governmental officials or entities.14The phrase “prevailing party” is not intended to be limited to the victor onlv after entry of a fihal judgment following a_ full trial qn the merits'. It would also include a litigant who succeeds even it the case is concluded prior to a full evidentiary hearing before a judge or jury. If the litigation terminates by consent decree, for example, it would be proper to award counsel fees. Incarcerated M en o f  A lien  
C ounty v. F air, 507 F.2d 281 (6 th Cir. 1974)  \ R a rkp r  v. M at H ew s. 411 F, Supp. 1059. (D.D.C. 1976).; A sp ira  o f Ne^wYork._Inc. v.B o a rd  
o f E duca tion  o f  the C ity  o f A ew  Y o rk , 65 F.R.D. o41 (S.D.h.Y. 1975). A “prevailing” party should not be penalized tor seeking an Out-of-court settlement-, thus helping to lessen docket congestion. Similarly, after ’a complaint is filed', a defendant might vcduntanly cease the unlawful practice. A court should still award fees even though- it might conclude-, as a matter of equity, that ho format relief, such as an injunction-, is heeded. E .g ., P arham v. So u th w estern  b e t  
Telephone C o,, 433 F.2d 42i (8tlr Cir. 1970); B ro w n  f a s t e n  C ounty  
D yein g  M achine Co., 457 F.2d 1377 (4th Cir.), cert denied-, 409 L.S. 982 (1972) : see alto L ea v. Cone M ills C orp ., 438 F.2d 86 (4tli Cir. 1971); E vers v, D w yer, 358 U.S-. 202 (1958) . „A prevailing defendant may also recover its fees when the plaintiff seeks and obtains a voluntary dismissal of a groundess complaint,

Of course tW iit li .A m e n d m e n t  Is not k bar to the Awarding of counsel fees a g ln e t  
e governments-. Fitzpatrick v . Bitzer, -------U .9 .-------; 96 S .G t 2666 (June .8 ,  ly .B ) .state

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CorcOrdn v. Colum bia B roadcasting S y s te m, 121 F.2d 575 (9th. Cir. 1941):, as tong as'the other factors, noted earlier, governing awards to defendants are met. Finally the courts have also awarded counsel fees to a plaintiff who successfully concludes a class action suit even though that individual was not granted any relief. P arham v. S o u th ­
w estern  B e ll  Telephone Co., supra; R eed v. A rlin g to n  H o te l Ca.r In c .7 476 F.2d 721 (8th Cir. 1973). .Furthermore, the word “prevailing” is not intended to_ require the p-nt-rv nf a On.nl orrlar before fees mav be recovered. “A district court

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trust laws, for example, a plaintiff may recover treble damages and still the court is required to award attorney fees. The same principle should apply here as civil rights plaintiffs should not be singled out for different and less favorable treatment. Furthermore, while dam­ages are theoretically available under the statutes covered by H.R. 15460, it should be observed that, in some cases, immunity doctrines and special defenses, available onlv to public officials, preclude or se­verely limit the damage remedy.17 Consequently awarding counsel fees to prevailing plaintiffs in such litigation is particularly important and necessary if Federal civil and constitutional rights are to be adequate­ly protected. To be sure, in a large number of cases brought under the provisions covered by H.R. 15460, only injunctive relief is sought, and prevailing plaintiffs should ordinarily recover their counsel fees. 
N ew m an v. P igg ie  P a rk  E nterprises, In c ., su p ra ; Northcross v. M em ­
ph is B oard  o f  E duca tion , supra.The application of these standards will insure that reasonable fees are awarded to attract competent counsel in cases involving civil and constitutional rights, while avoiding windfalls to attorneys. The effect of H.R. 15460 will be to promote the enforcement of the Fed­eral civil rights acts, as Congress intended, and to achieve uniformity in those statutes and justice for all citizens.

Oversight of the administration of justice in the federal court system is the responsibility of the Committee on the Judiciary. The hearings on October 6 and' 8 and Dec. 3, 1975, focused on specific pending legislation. However, they did have an oversight purpose, as well, since the impact of the Supreme Court’s A ly esk a decision on the public and the related issue of equal access to the courts were subjects of the hearing.
Committe V ote

H.R. .15460 was reported favorably by a voice vote of the Com­mittee on September 9, 1976. Twenty-seven members of the Commit­tee were present.
Statement of the Committe on Government Operations

No statement has been received on the legislation from the House Committee on Government Operations.
Statement of the Congrssional Budget Office

Pursuant to clause 7, rule XIII of the Rules of the House of Rep­resentatives and section 403 of the Congressional Budget Act of 1974, the Committee estimates there will be no cost to the federal government.
w Wood v. Strickland, 420 U.S. 308 (1975) ; Scheuer r . Rhodes, 416 U.S. 232 (1974) ; 

Pierson v. Ray, 386 U.S. 547 (1967).

k.-«<



Congress of the U nited States,
Congressional B udget Office, 

W ashington , D .C ., S ep tem b er 7, 1976.Hon. P eter W. R odino,
C hairm an, C om m ittee on the Ju d ic ia ry, U.S. H ouse o f  R eyresena tives, 

R a yb u rn  H ouse Office B u ild in g, W ashington , D.C.
D e ar M r. Chairman : Pursuant to Section 403 of the Congressional Budget Act of 1974, the Congressional Budget Office has reviewed the Civil Rights Attorneys Fees Award Act of 1976, a bill to award attorney's fees to prevailing parties in civil rights suits to enforce Sections 1977, 1978, 1979, 1980 and 1981 of the Revised Statutes, Title IX of P.L. 92-318 or Title VT of the Civil Rights Act of 1964.Based on this review, it appears that no additional cost to the gov­ernment would be incurred as a result of enactment of this bill. Sincerely,

Alice M .R iv l in ,
Director.

I nflation art I mpact .Statement

The.legislation will have no foreseeable inflationary impact on prices or costs in the operation of the national economy.

i?ais

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Section-by-Section A nalysis

Section  1Section 1 merely recites the short title of the legislation, “The Civil Rights Attorney's Fees Awards Act of 1976”.
Section  2
Section 2 amends section 722 (42 U.S.C. 1988) of the Revised Stat­utes by adding at the end of that section the following language:

In any action or proceeding to enforce a provision of sec­tions 1977, 1978, 1979, 1980, 1981 of the Revised Statutes,
V 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 prevail- ig party, other than the United States, a reasonable attorney’s fee as part of the costs.

- Changes in  E xisting L aw Made by the  B ill, as R eported

In compliance with clause 3 of rule XIII of the Rules of the House of Representatives, changes in existing law made by the bill, as re­ported, are shown as follows (new matter is printed in italic, existing law in which no change is proposed is shown in roman) :
SECTION 722 OF THE REVISED STATUTES ;

S ec. 722. The jurisdiction in civil and criminal matters conferred on the district and circuit courts by the provisions of this Title, and of Title “Civil R ights,” and of Title “Crimes,” for the protection of all persons in the United States in their civil rights, and for their vindi-

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3

Appendix A1
FEDERAL STATUTES ATJTHORXZrNG T H E  AWARD OF ATTORNEY FEES

1. Federal Contested Election Act, 2 U.S.C. 396.2. Freedom of Information Act, 5 U.S.C. 552(a)(4)(E).3. Privacy Act, 5 U.S.C. 552a(g) (3) (B).4. Federal Employment Compensation For Work Injuries, 5 U.S.C. 8127.5. Packers and Stockyards Act, 7 U.S.C. 210(f).6. Perishable Agricultural Commodities Act, 7 U.S.C. 499g (b), (c).7. Agricultural Unfair Trade Practices Act, 7 U.S.C. 2305 (a), (c).8. Plant Variety Act, 7 U.S.C. 2565.9. Bankruptcy Act, 11 U.S.C. 104(a) (1).10. Railroad Reorganization Act of 1935, 11 U.S.C. 205(c) (12).11. Corporate Reorganization Act, 11 U.S.C. 641. 642, 643, and 644.12. Federal Credit Union Act, 12 U.S.C. 1786(0).13. Bank Holding Company Act, 12 U.S.C. 1975.14. Clayton Act, 15 U.S.C. 15.15. Unfair Competition Act (FTC), 15 U.S.C. 72.16. Securities Act of 1933,15 U.S.C. 77k (e).17. Trust Indenture Act, 15 U.S.C. 77www(a).18. Securities Exchange Act of 1934, 15 U.S.C. 78i(e), 78r(a).19. Jewelers Hall-Mark Act, 15 U.S.C. 298 (b), (c) and (d).20. Truth-in-Lending Act (Fair Credit Billing Amendments), 15 
U.S.C. 1640(a).21. Fair Credit Reporting Act, 15 U.S.C. 1681 (n).22. Motor Vehicle Information and Cost Savings Act, 15 U.S.C. 1918(a), 1989(a)(2).23. Consumer Product Safety Act, 15 U.S.C. 2072, 2073.24. Federal Trade Improvements Act (Amendments), 15 U.S.C. 2310(a)(5)(d)(2).25. Copyright Act, 17 U.S.C. 1116.26. Organized Crime Control Act of 1970, 18 U.S.C. 1964(c).27. Education Amendments of 1972, 20 U.S.C. 1617.28. Mexican American Treaty Act of 1950, 22 U.S.C. 277d-21.29. International Claim Settlement Act, 22 U.S.C. 1623(f).30. Federal Tort Claim Act, 28 U.S.C. 2678.31. Uorris-LaGuardia Act, 29 U.S.C. 107.32. Fair Labor Standards Act, 29 U.S.C. 216(b).33. Employees Retirement Income Security Act, 29 U.S.C. 1132̂ g).

34. Labor Management Reporting and Disclosure Act, 29 U.S.C. 
431(c), 501(b).35. Longshoremen and Harbor Workers Compensation Act, 33 
U.S.C. 928'.

i  This lis t  Is compiled from Information submitted to the Subcommittee by the Council 
for Public Interest La wand the A ttorneys’ Fee Project of the Lawyers’ Committee for 
Civil R ights Under Law.

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37. Ocean Dumping Act, 33 U.S.C. 1415(g) (4)38. Deepwater Ports Act of 1974, 33 U.S.C. 1515.39. Patent Infringement Act, 35 U.S.C. 285.40. Servicemen’s Group Life Insurance Act, 38 U.S.C 784 (o-)41. Servicemen’s Readjustment Act, 38 U.S.C. 1822(b).42. Veterans Benefit Act, 38 U.S.C. 3404(c).43. Safe Drinking Water Act, 42 U.S.C. 300j-8(d).44. Social Security Act (Amendments of 1965), 42 U.S.C. 406(b) 4o. Glean Air Act (Amendments of 1970), 42 U.S.C. 1857h-246. Civil Rights Act of 1964, Title II, 42 U.S.C. 2000a-3(b) 
to Civil Rights Act of 1964, Title VII, 42 U.S.C. 2000e-5(k).48. Legal Services Corporation Act, 42 U.S.C. 2996e(f)49. Fair Housing Act of 1968, 42 U.S.C. 3612(c).50. Noise Control Act of 1972,42 U.S.C. 4911 (d .51. Railway Labor Act, 45 U.S.C. 153 (p).52. Merchant Marine Act of 1936,46 U.S.C. 1227.53. Communications Act of 1934,47 U.S.C. 206.
tflOŴ bfo*) C°mmerce Act’ 49 U-S.C. 8> 16(2) > 908(b), 908(e),

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STATUTES COVERED OR AMENDED BY H .R . 1 5 4 6 0

1. Revised Statutes § 1977 (42 U.S.C. § 1981).
§ 1981. Equal rights under the law

All persons within the jurisdiction of the United States shall have 
the same right in every State and Territory to make and enforce con­
tracts, to sue, be parties, give evidence, and to the full and equal benefit 
of all laws and proceedings for the security of persons and property as 
is enjoyed by white citizens, and shall be subject to like punishment, 
pains, penalties, taxes, licenses, and exactions of every kind, and to no 
other.
R.S. § 1977.
2. Revised Statutes § 1978 (42 U.S.C. § 1982).

§ 1982. Property rights of citizens
AH citizens of the United States shall have the same right, in everv 

State and Territory, as is enjoyed by white citizens thereof to inherit, 
purchase^lease, sell, hold, and convey real and personal property.
R.S. § 1978.
3. Revised Statutes § 1979 (42 U.S.C. § 1983).

§ 1983. Civil action for deprivation of rights
Every person who, under color of any statute, ordinance, regulation, 

custom, or usage, of any State or Territory, subjects, or causes to be 
subjected, any citizen of the U nited States or other person within the 
jurisdiction thereof to the deprivation of any rights, privileges, or 
immunities secured by the Constitution and laws, shall be liable to the 
party injured in an action at law, suit in equity, or other proper pro­
ceeding for redress.
R.S.§ 1979.
4. Revised Statutes § 1980 (42 U.S.C. § 1985).

§ 1985. Conspiracy to interfere with civil rights—Preventing offi­
cer from performing duties

(1) If two or more persons in any State or Territory conspire to 
pi event, by force, intimidation, or threat, any person from accepting 
or holding any office, trust, or place of confidence under the United 
States, or from discharging any duties thereof; or to induce by like 
means any officer of the United States to leave any State, district, or 
place, where his duties as an officer are required to be performed, or to 
injure him in his person or property on account of his lawful discharge 
of the duties of his office, or while engaged in the lawful discharge 
thereof, or to injure his property so as to molest, interrupt, hinder, or 
impede him in the discharge of his official duties;



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Obstructing justice; intimidating party, witness, or juror
(2) If two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testi- fving to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, or to influence the verdict, pre­sentment, or indictment of any grand or petit juror in any such court, or to injure such juror in his person or property on account of any ver­dict. presentment, or indictment lawfully assented to by him. or of his being or having been such juror ̂ or if two or more persons con­spire for the purpose of impeding, hindering, obstructing, or defeat­ing, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class'of persons, to the equal pro­tection of the laws;

Depriving persons of rights or privileges
(3) If two of more persons in any State of Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hin­dering the constituted authorities of any State or Territory from giv­ing or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against anv one of more of the conspirators.

RS. §1980.
5. Revised Statutes § 198 (42 U.8.C. § 1986).

§ 1986. Same; action for neglect to prevent
Every person who, having knowledge that any of the wrongs con­spired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in prevent­ing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured, or his legal representatives, fox- all damages caused by such wrongful act, which such person by reasonable diligence could have prevented: and such damages may be recovered in an action on the case; and

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any number1 of persons. guilty of such, wrongful neglefet or refusal may be joined as'defendants in the action; and if the death of any party be caused by any such wrongful act and neglect, the legal rep­resentatives of the deceased shall have such action therefor, and may recover not exceeding $5,000 damages therein, for the benefit of the widow of the deceased, if there be one, and if there be no widow, then for the benefit of the next of kin of the. deceased. But no- action under the provisions of this section shall be sustained which is not commenced within one year after the cause of action has accrued. >
R.S. § 1981.
6. Revised Statutes § 722 (42 U.S.C. § 1988).

§ 1988. Proceedings in vindication of civil rights
- The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of this chapter and Title 18, for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in con­formity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions nec­essary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be ex­tended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of pun­ishment on the party found guilty.
R.S. § 722.
7. Title IX of Public Law 92-318 (20 U.S.C. § 1681-1686), as amended.

§ 16S1. Sex—Prohibition against discrimination; exceptions
(a) No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be sub­jected to discrimination under any education program or activity re­ceiving Federal financial assistance, except that:
Classes of Educational Institutions Subject to Prohibition

(1) in regard to admissions to educational institutions, this section shall apply only to institutions of vocational education, professional education, and graduate higher education, and to public institutions of undergraduate higher education ;
Educational Institutions Commencing Planned Change in Admissions
- (2) in regard to admissions to educational institutions, this section shall not apply (A) for one year from June 23,1972, nor for six years after June 23,1972, in the case of an educational institution which has begun the process of changing from being an institution which admits only students of one sex to being an institution which admits students of both sexes, but only if it is carrying out a plan for such a change

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noc apply to an educational institution which
c o n S t *?£" ;£ y>» Wflication of tlm S  nsrstent with the religious tenets of such

/ \ \ « ---. to(A| of a social fraternity orirom taxation under section 501 (
wlli<;h consists primar

/wf ̂ tn1Pn ̂  bi£her education.
enhrhW,?6 Y°un£ % > ’s Chris en s Christian Association, Girl 1hriris, and voluntary youth servexempt,, the membership of whicl

0r disparate treatment b< 
balance °f FederaI * * * *

interlr2e?i? C°n-tained 111 subsectio t?S nPP i d to\r**Uire' anJ educational tial or disparate treatment to the-men
perctoteitnei% Whicfe taa? e2ist "itfc r

comparison



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with the total number or percentage of persons of that sei in any com­munity. State, section, or other area: Provided-. That this subsection shall not be construed to prevent the consideration in any hearing or proceeding under this chapter of statistical evidence tending to show that such an imbalance exists with respect to the participation in* or receipt of the benefits of, any such program or activity by the members of one sex.
Educational Institution Defined

(c) For purposes of this chapter an educational institution means any public b t private preschool, elementary, or secondary school, or any institution of vocational, professional, or higher education, ex­cept that in the case of an educational institution composed of more than one school, college, or department which are administratively separate units, such terms means each such school, college, or department.
§1682. Federal administrative enforcement; report to congres­sional committees
Each Federal department and agency which is empowered to ex­tend Federal financial assistance to any education program or activ­ity, by way of grant, loan, or contract other than a contract of insurance or guaranty, is authorized and directed to effectuate the pro­visions of section 1681 of this title with respect to such program or activity by issuing rules, regulations, or orders of general applic­ability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken. No such rule, regulation, or order shall be­come effective unless and until approved by the President. Compliance with any requirement adopted pursuant to this section may be ef­fected (1) by the termination of or refusal to grant or to continue assistance under such program or activity to any recipient as to whom there has been an express finding on the record, after opportunity for hearing, of a failure to comply with such requirement, but such termination or refusal shall be limited to the particular political en­tity, or part thereof, or other recipient as to whom such a finding has been made, and shall be limited in its effect to the particular program, or part thereof, in which such noncompliance has been so found, or (2) by any other means authorized by law: P rovided , hcncever, That no such action shall be taken until the department or agency concerned has advised the appropriate person or persons of the failure to comply with the requirement and has determined that Compliance cannot be secured by voluntary means. In the case of any action terminating, or refusing to grant or continue, assistance because of failure to comply with a requirement imposed pursuant to this section, the head of the Federal department or agency shall file with the committees of thC House and Senate having legislative jurisdiction over the program or activity involved a full written report of the circumstances and the grounds for such action. No such action shall become effective until thirty days have elapsed' after the filing of such report.

y
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tUs Su.Kuant l° section I6S2 of
provided bylaw for s ^ L r a S w S p T L ^  ,W,aS ma^ otherwise be 
on othergrounds. In the case of oof-in 1 dePartment or agency
review, terminating or « f ^  to S r5 °n  °  ^  Subject to J ^ c i a l  
ance upon a finding of failure to°comn]7 to.^?ntuiue financial assist- 
posed pursuant to lection 1682 of tlus 'LrTP ho reqmrement im'
(including any State nr nnii+io 1 , . .tie, any person aggrieved

of either) may .obtain iudieiaTr subdlvlf on thereof and any "agency with-chapter-T of Title 5 nnri - eyiew °f such action in accordance
rnitted tocunreviewabie6agency S r e t T w S ? - 11 be deem«* tion tOl of that. Title. y discretion within the meaning of sec-

§1684° LBlindre18, ^ IX ’ § 9°3’ June 23> 1972> 86 Stat. 374.
r prohibition agaiust dls-

severeFyTmpaTred^fom'b e ^ d f J n S s s i ^  F °Und ° f blindness or
by a recipient of Federal financial aS  ' f  any course of study 
f  am or activity, but n o th iS  hereb sTall he f o e d u c a t i o n  P™- 
Slf , h institution to provide a n y s n e d a t i t  C°fnStrUed to reqid«  any 
of his blindness or visual impairment eS t0 aUcb Person because
Public Law 92-M8, Title IX , § 904, Jane 23, X972, 36 Stat 375

N e t i n t t  ? ? y “nnder ° 'h' r  I“ ™ “^ c t e d '
authoritfw ith r a p tf to a ) " !  a' id to or delract from an-.- existin ' 
eral financial assistance is JSmSib^w av”' ? ' * 7 undcr ” ’hich * « £  or guaranty. aed by way °f a contract of insurance
Public Law 92-318 Title TV 5 nn- r o i C0- ? -title 1A, § 90o, June 23,197-? 86 S tit* 3 fe"?aC.cational institution receivino- n ^  C°J1Straed to Prohibit anv S  

separate living facilities fo F fh e S m n ts ^ e s !  Act, from maintaining 
Public Law 92-318 Title TV o nn-r r 

8. Title VI of theCiviM ? § f Une 23, 7972? 86 Sta.t. 375.
amended), (42U .S.C ;20^dfhfoughd-6)f 1964 (PubL L- 88-352, as

§ 2000d.
f tr®CHAPTER Y- FEDERA LLr ASSISTED PROGRA3IS

••nial ofbenefits^L and dismimin^^314^!?3*10" in’ de'

°r«23"0riJn'Kclfed from n’art“ ̂ F°^ d ot race- a°I°r,b“fdts of’ Pr.be subjected to discrtemaT^8̂ 11 m> be denied the 
w T  bfreTCer ing FederaI financial SsSaFee1’!1? ^ ? 7 Proqram or
VI, §601, July 2,1964,78 Stat. 252.) (Pub‘ L- 88-352, title



■ -------------- -

8 ÔOOd-1. Federal authority and financial assistance to programs 
. ■■ _ ■ :  of activities by way of grant, loan,.or contract omer

. : .- than contract of insurance or guaranty; rules and
regulations',approval by President; compliance with 
requirements; reports to congressional committees; 
effective date of administrative action

Each Federal department and agency which is empowered to extend Federal financial assistance to any program or activity, by way of orant, loan, or contract other than a contract of insurance or guaranty, is authorized and directed to effectuate the provisions of section 2000d of this title with, respect to such program or activity by issuing ruieŝ regulations, or orders of general applicability which shall be consist­ent with achievement of the objectives of the statutê authorizing the financial assistance in connection with which the action is taken. No such rule, regulation, or order shall become effective unless and until approved bv the President. Compliance with any requirement adopted pursuant to this section may be effected (1) by the termination ot or refusal to grant or to continue assistance under such program or ac­tivity to any recipient as to whom there has been an express finding on the record, after opportunity for hearing, of a failure to complv with such requirement, but such termination or refusal shall be limited to the particular political entity, or part thereof, or other recipient as to whom such a finding has been made and, shall be limited in its effect to the particular program, or part thereof, in which such non- compliance has been so found, or (2) by any other means authorized by law: P vovided, howevcv, That no such action shall be taken until the department or agencv concerned has advised the appropriate per­son or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means. In the case of any action terminating, or refusing to grant or continue, assistance because of failure to comply with a requirement imposed pursuant to this section, the head of the Federal department or agency shall file with the committees of the House and Senate having legisla­tive jurisdiction over the program or activity involved a full written report of the circumstances and the grounds for such action. No such, action shall become effective until thirty days have elapsed after the filing of such report. (Pub. L. 88-352, title \I, § 602, July 2, 196-4, 
7S Stat. 252.)
§ 2000d-2. Judicial review; Administrative Procedure Act.
Any department or agency action taken pursuant to section 2000d-l of this title shall be subject to such judicial review as may otherwise be provided by law for similar action taken by such department or agencv on other grounds. In the case of action, not otherwise subject to judi­cial review, terminating or refusing to grant or to continue financial " assistance upon a finding of failure to comply with any requirement im­posed pursuant to section 2000d-l of this title, any person aggrieved (including any. State.or political subdivision thereof and any agency of either) may obtain judicial review of such action in accordance with section 1009 of Title 5, and such action shall not be deemed committed to unreviewable agency discretion within the meaning of that section. (Pub. L. 88-352, title VI, § 603, July 2 ,1964,78 Stat. 253.) . .



§ 2000d-3. C o n stru ctio n  o f  p — 
tr a t iv e  a c tio n  w ith  
e x c ep t w h ere  
a s s is ta n c eNothing contained' in action under f '

to any e m p l o y m e n t s  7 i  
labor organization except whei 
financial assistance is to provic 
v I, §.604, J ulv 2 , ----

§2009d-4. Federal;
or  a c t iv it ie s  b y  
g u a r a n ty

subchapter shall add to 
authority with respect to any program or l 
financial assistance is extended bv wav of  
guaranty. (Pub. L. 88-352, title VT, " f
§2000-5. Prohibited deferral of action

educational agencies seeking fed<TraY£tX n°ncompl,ance with Civil 4h?s Art " S 
ike Commissioner of Education shall

E d u c a t i n '‘Art o f ■ 
^ S e p t e m b e r -23,1950 “public g ° Y p s)'’ C uP a S

200?d-l of this title, s S " S / r  ? ^  ‘ S Dr
the tlme for such hearing of sueh iocai agency and the 

continue for more than thirt

S S V j t S L " !* «® ̂ thorize adminis- p?^ t(> employment practices
« to p Se°eXCr0Vym0ef„federalthis sobchaptor b̂nŷepartment l ? 81™ 6 ‘°

s « ^ s & r loymenL <Pub-
'"I« ^ ont3r and financial assistance to way of contract of programs insurance or

or detract from any existing 
activity under which Federal 

Rni~ j  contract of insurance or 
60o, July 2, 1964, 7S St at. 253.)

™ „a?_I?Iicatl> n/  ^  local for alleged
not defer action or order ac-

to be’
em i e n  1965, by the Act ofSep-

i . I  r \ T l  / W V \ o / v  \  1 _ __ j 1 a

t'ess). or bv
_-0-~ .noncompliance

ml r?A b ™  7 days after 
unless such local

t o b e h e l d w i ^ S ? l “ ^ o „

dueationai hf'cTT®6 °f de‘
s, w 4 ™ h ,  S J S S t e i l S ?  

a«e4y f e T S d e Z e d  fH ,5̂  0P s' io »!
ofar al t h e matter?™  tobe “ compliance 
(Pub, L. 89.-750, S t te J  7 f s ? x *  ° l d e r  or

provision^inletottS" d t S T l

termiping whether a 
this subchapter, comr 
inept of a Federal co 
system operated by s 
with this subchapter, 
judgment are concerr 
80 Stat, 1209; Pub, L. 
§ 2000d-6. Poliev r>#

fS .and criteria 
"t of 1964 and

: .a.' m*}..



section 182 of the Elementary and Secondary Education Amendments, of 1966 dealing with conditions of segregation by race, whether dejure or de facto, in the schools of the local educational agencieŝ ! any State shall be applied uniformly in all regions of the United States what­ever the origin or cause of such segregation.
(b) Nature of uniformity
Such uniformity refers to one policy applied uniformly to de jure- segregation wherever found and such other policy as may be pro\ ided pursuant to law applied uniformly to de facto segregation wherever 

found.
(c) Prohibition of construction for diminution of obligation for

enforcement or compliance with nondiscrimination require~- 
ments

Nothing in this section shall be construed to diminish the obligation of responsible officials to enforce or comply with such guidelines and criteria in order to eliminate discrimination in federally assisted pro­grams and activities as required by title VI of the Civil Rights Act 
of 1964.
(d) Additional funds
It is the sense of the Congress that the Department of Justice and the Department of Health, Education, and V elfare should request such additional funds as may be necessary to apply the policy set forth in this section throughout the United States. (Pub. L. 91-230, § 2, Apr_ 

13,1970, 84 Stat. 121.) O



■— '^rfa%sw*MTK^rf^MiagTriT>rs-i ■ -:

94th  CONGRESS 
2d Session H. R. 1 5 4 6 0

LN THE HOUSE OF REPRESENTATIVES

\ September 8,1976
Mr. D hinan (for himself, Mr. K astenmeier, Mr. D anielson, Mr. B adillo, 

Mr. P attison of New York, Mr. R ailsback, and Mr. W iggins) introduced 
the following bill; which was referred to the Committee on the Judiciary

A  BILL
To allow the awarding of attorney’s fees in certain civil 

: - : .rights cases.

1 Be it enacted by the Senate and House of Representa- 

% trees of the United States of America in Congress assembled,

3 That this Act may he cited as “The Civil Rights Attorney’s

4 Fees Awards Act of. 1976” .

5 S e c . 2. That the Revised Statutes section 72 2  (42

6 U.S.C. 1988) is amended by adding the following: “In 

V any action or proceeding to enforce a provision of sections

8 19/ <, 19/8, 19/9, 1980, and 1981 of the Revised Statutes,

9 title IX  of Public Law 92-318, or title VI of the Civil Rights

10 Act of 1964, the court, in its discretion, may allow the

11 prevailing party, other than the United States, a reasonable

12 attorney’s fee as part of the costs.” .

I

C

I

Z 3 c



A p p S / O P  I X J > i

790

9-2d CONGRESS 
2d S ession

|

Calendar No. 4 1 2
S. 2515

IN THE SENATE OK THE UNITED STATES
J anuary 21,1972

Ordered to lie on the table and to be printed

AMENDMENTS
Intended to lie proposed l*v Mr. G am  liman to S. 2515, a hill to 

further promote equal employment opportunities for Amer­
ican workers, viz:

1 On page 84, line 21, after the period, insert the follow-

2 ing. Notice of the terms of eligibility for the respondent to

3 receive expenses and attorney’s fees pursuant to subsection

4 (h) shall he served on him along with the notice of the

5 charge.”

On page 37, line 17, after the parenthesis, insert the

7 following: “and notice of the terms of eligibility for the

8 respondent to receive expenses and attorney’s fees pursuant

9 to subsection (h)”.

10 On page 39, after line 19, insert the following:

Amdt. No. 810



791

2

1 (li) Any respondent that is an employer of less than

2 twenty-five employees shall, upon application to the Com-

3 mission, be indemnified by the United States for the cost

4 of his defense against the charge in an amount not to exceed

5 $5,000, including all reasonable expenses and attorney’s 

0 fees incurred after the serving of notice on him of the

7 charge, unless a final determination is made that the rc-

8 spondent willfully committed the unlawful employment

9 practice charged to him. Any respondent that is an em-

10 ployer of twenty-five to one hundred employees whose nv-

11 erage income from such employment is less than $7,500

12 shall, upon application to the Commission, lie indemnified by

13 the United States for one-half of the cost of his defense

14 against the charge not to exceed $2,500, including all rea-

15 sonable expenses and attorney’s fees incurred after the serv-

16 ing of notice on him of the charge, unless a final

17 determination is made that the respondent willfully com-

18 initted the unlawful employment practice charged to him.

19 The costs evidenced by respondent’s vouchers of his ex-

20 penses and attorney’s fees shall be deemed reasonable so

21 long as they arc comparable to the total amount of the

22 expenses and attorney’s fees incurred by the Commission in

23 investigating and prosecuting the charge. Disallowance of

24 any part of such request shall be made a part of the Com-

25 mission’s order in such proceedings. Any United States



792

3
1 court before which a proceeding under this title shall be

2 brought may upon request by the employer make the dc-

3 termination provided for in this subsection. The Treasurer

4 of the United States shall indemnify the respondent as pro-

5 vided for herein upon certification by the Commission. No

6 enforcement procedure under this title may be initiated

7 against an employer until the amount of such indemnity

8 has been paid in full.”

9 Subsections (h) through (w) as referred to in section

10 4 are redesignated ns subsections (i) through (x),

11 respectively.



1019

92d CONGRESS
2d S ession

Calendar No. 4 1 2

S. 2515

IN THE SENATE OF THE UNITED STATES

J anuary 27,1972
Ordered to lie on the table and to be printed

AMENDMENT
Intended to be proposed by Mr. G a m b r e l l  to S. 2515, a bill 

to further promote equal employment opportunities for 
American workers, viz: On page 50, line 19, add the fol­
lowing new section:

1 (e) Subsection (w) of section 700 of such Act, as re-

2 designated by this section is amended to read as follows:

3 “ (w) In any action or proceeding under this title the

4 Commission or court, as the case may be, may allow the

5 prevailing party, other than the Commission or the United

6 States, a reasonable attorney’s fee as part of the costs. Any

7 respondent that is an employer of less than twenty-five em-

8 ployees or a labor organization of less than twenty-five mem-

9 bers shall, upon application to the Commission, be indemni- 

10 fied by the United States for the cost of his defense against

Amdt. No. 833

7 4 -6 9 9  0  - 72 - 65



1020

1 the charge in an amount not to exceed $5,000, including all 

■ 2 -reasonable expenses and attorney’s fees incurred after the

2 serving of notice on him of the charge.

4 “Any respondent that is an employer of twenty-five to

5 one hundred employees whose average income from such 

0 employment is less than $7,500, or a labor organization

7 w;th twenty-five to one hundred members, shall, upon appli-

8 cation to the Commission, be indemnified by the United

9 States for one-half of the cost of his defense against the

10 charge not to exceed $2,500, including all reasonable cx-

11 penscs and attorney’s fees incurred after the serving of notice

12 on him of the charge. The costs evidenced by respondent’s 

K’> vouchers of his expenses and attorney’s fees shall he deemed

14 reasonable so long as they are comparable to the total amount

15 of the expenses and attorney’s fees incurred by the Com- 

1G mission in investigating and prosecuting the charge. Pis- 

17 allowance of any part of such request shall be made a part 

IS of the Commission’s order in such proceedings. Any United

10 Slates court before which a proceeding under this title shall 

2[) be brought may upon request by the respondent make the

21 determination provided for in this subsection.

22 “The Commission and the United Slates shall be liable 

2;>. for costs as provided for in this section the same as a private 

24: person. No enforcement procedure under this title may be 

25 initialed against a respondent employer or union until the



1021

3

2
3
4
5 
G

1 costs provided for herein shall have been paid in full, hi o 

such costs shall be paid in the event that the Commission 

or court having jurisdiction of such proceeding shall deter­

mine that a respondent has conducted his defense in a man­

ner inconsistent with the achievement of the purposes of 

this title.”



1185

the costs provided for herein shall have been paid in full,” I inter­preted that to mean payment before the hearing on the complaint before the trial examiner under cease and desist., at the Commission level. Am I in error? Is this to be paid only on appeal, then, to the circuit court of appeals?Mr. Gambuell. Of course, at the time we drew this, we did not know what type of enforcement procedure would be adopted; but the inten­tion of that language is to mean an enforcement procedure in court.In other words, I do not interpret the proceedings before the Com­mission to be an enforcement procedure, in my own terminology be­cause it is not self-executing; it has to be taken to court to be made operative. But I would certainly not object to some clarifying change being mado in that language, in order to make it clear that we arc talking about at the end of the Commission proceedings, rather than in the beginning.Mr. President, I suggest the absence of a quorum.The P residing O fficer. The clerk will call the roll.The second assistant legislative clerk proceeded to call the roll.Mr. Mondale. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.The P residing Officer. Without objection, it is so ordered.Mr. Mondale. Mr. President, I send to the desk an amendment in the form of a substitute to the pending amendment, Ho. 833, and I ask unanimous consent that the reading of the substitute amendment be dispensed with.The P residing Officer. Without objection, it is.so ordered; and, without objection, the substitute amendment will be printed in the 
Record.The substitute amendment is as follows:

In lieu of the language in amendment No. S33, insert the following new 
section:

“(e) subsection (w) of Section 700 of such Act, ns redesignated by this section 
is.amended to read as follows:

“ ‘(w) in any action or proceeding under this title the Commission or Court, 
as the case may be, may allow the prevailing party, other than the Commission 
or the United States, a reasonable attorney's fee as part of the costs, and the 
Commission and the United States shall be liable for costs the same as a private 
person. Any prevailing party that is an employer of less than twenty-five em­
ployees or a labor organization of less than twenty-five members shall, upon 
application to the Commission, be indemnified by the United States for the cost 
of his defense against the charge in an amount not. to exceed $">,000, including 
all reasonable expenses and attorney’s fees incurred after the serving of notico 
on him of the charge."

“ ‘Any prevailing party that is an employer of twenty-five to one hundred em­
ployees whose average income from such employment is less than $7,500, or a 
labor organization with twenty-five to one hundred members, shall, upon applica­
tion to-the Commission, be indemnified by the United States for one-half of the 
cost of his defense against the charge not to exceed $2,500, including all reason­
able expenses and attorney’s fees incurred after the serving of notice on him of 
the charge. The costs evidenced by repondent’s vouchers of his expenses and 
attorney’s fees shall be deemed reasonable so long as they are comparable to the 
total amount of the expenses and attorney's fees incurred by the Commission in 
investigating and prosecuting the etutrge. Disallowance of any part of such ro- 
nuest. shall be made a part of the Commission’s order in such proceedings. Any 
United States court, before which a proceeding under this title shall be brought, 
may upon request by the respondent make tin1 determination provided for in this 
subsection. The Treasurer of the United States shall indemnify the respondent 
ns provided for herein upon certification by the Commission.’ ”



A P P £ / O P \ X  t

AFFIDAVIT OF VALERIE V. AMBLER

City of Washington, )) ss
District of Columbia )

VALERIE V. AMBLER, having been provided a copy of the Defendant- 
Appellant's brief to the U.S. Court of Appeals for the District of 
Columbia in the case of Parker v. Mathews, and being duly sworn, 
hereby deposes and states:

1. I have been a member of the District of Columbia Bar since 
December, 1973.

2. I am the Program Director of the Employment Discrimination 
Complaint Service of the District of Columbia Bar and in that 
capacity I have responsibility for the administration of that Service.

3. The Employment Discrimination Complaint Service was 
established by the District of Columbia Bar in December of 1973 and 
was then known as the Government Employees' Legal Advice and Referral 
Service. The Service was established in response to the needs of 
government Employees who were experiencing difficulty in locating 
affordable attorneys with the expertise necessary to handle their
employment discrimination cases.

4. The Service is the only one of its kind in the country. It 
refers complainants in the D.C. metropolitan area to both private 
and government attorneys willing to accept these cases. Only 12-o
of the total 2.9 million government employees are located here.
The Service also receives calls from complainants throughout the country 
who have been unable to locate either a private or government attorney 
to represent them. Because this is a new and complicated area of

^ p (o £> \ x cj AS o  SU C-1 4 l l >/ p \21 p/4 iZ £ ib 4S
Ar r A c v ^ T  A t o  a p p s x U S

££2(2 v , *J0- ' 7 6 -  \ ^ r  I 6 .



2

the law there does not yet exist a sufficient number of attorneys 
with the expertise necessary to handle these cases.

5. Private attorneys who have registered with the Service have
not agreed to provide free legal representation. Since under 
Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq)
attorneys' fees are awarded to the prevailing party, attorneys in 
private practice do not accept these cases on a purely pro bono 
basis. When a private attorney accepts a referral from the Service, 
they do so with the understanding that if they prevail, they are 
entitled to full court awarded fees and in the meantime they charge 
a fee that is commensurate with ability to pay. Clients who have 
been referred to private attorneys understand that they must pay their 
attorney's fees to the extent that they are able.

6. Due to the uncertainty of the law in regard to awards of 
attorneys' fees, there are not enough private attorneys to provide 
representation to all persons who wish to be represented in their 
EEO complaints. Attorneys either decline to enter this field
of law or restrict the number of cases brought by government employees 
that they will accept. Because these suits are complex and 
time consuming, complainants are simply not able to pay attorneys' 
normal hourly fees. And although there are attorneys who want to 
assist because of the far-reaching public interest issues involved, 
in order to remain in practice they necessarily must limit the 
number of cases for which they are not being fully compensated.

7. Government attorneys registered with the Service do provide 
free legal representation. Because of the provisions of the conflict 
of interest statute (18 U.S.C. §205) they are not permitted to

<2



3

receive a fee for this type of representation.
8. However, very few government attorneys are willing or able to 

take these cases. At this time only 53 government attorneys are 
available to provide representation to complainants who have come to the 
Service for representation. Of these, 22 are Department of Justice 
attorneys and 31 are from other agencies or departments. Since
its inception, the Service has experienced difficulty in locating 
government attorneys to provide this public service.

9. Government attorneys are reluctant to use their own time 
for these cases. The CSC regulations (5 C.F.R. 713.214(b)) provide 
that administrative leave shall be allowed a government attorney 
who is acting as an EEO representative but only when the attorney 
is representing an employee from the same agency. The head of 
each agency or department has discretion whether to permit an 
attorney to have administrative leave to represent a complainant
in another agency. The Attorney General has sent a memorandum to 
his employees permitting administrative leave for representation 
outside the Department and encouraging attorneys to provide 
representation in EEO cases. But no other agency or department has 
followed this example of issuing a policy statement to all employees 
and actively encouraging such representation. This contributes 
to the shortage of attorneys since for the most part, clients do 
not wish to be referred to an attorney from their own agency. In 
addition, most government attorneys registered with the Service 
also prefer to represent someone from outside their own agency.
Both parties prefer to avoid even the slightest question about a 
real or apparent conflict of interest.

3 e