Hansson v. Norton Brief of Amicus Curiae in Support of Appellant Hansson Urging Reversal

    No. 04-5157

UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Marian K. Hanssgn,
Plaintiff-Appellant, 

v.

Gale Norton, Secretary of the Interior,
Defendant-Appellee.

On Appeal from the United States District Court 
for the District of Columbia

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

IN SUPPORT OF APPELLANT HANSSON 
URGING REVERSAL

John Payton 
Paul R.Q. Wolfson 
Heather Elliott 
WiLMER Cutler Pickering 

Hate and Dorr LLP 
2445 M Street, N.W. 
Washington, DC 20037 
Telephone: (202) 663-6000 
Facsimile: (202) 663-6363



CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

1. The parties below and in this Court are plaintiff-appellant Marian K. Hans- 

son and defendant-appellee Gale A. Norton, Secretary of the Department of the Inte­

Brief, the NAACP Legal Defense and Educational Fund, Inc. (“LDF”) seeks to par­

ticipate in these proceedings as an amicus curiae supporting Ms. Hansson.

2. The ruling under review is the Memorandum Opinion and Order entered 

on March 30, 2004, granting Secretary Norton’s motion to dismiss and denying Ms. 

Hansson’s motion for summary judgment. The Opinion appears at JA 44-62 and is 

reported at 315 F. Supp, 2d 40 (D.D.C. 2004); the Order appears at JA 63-64.

3. LDF relies on the representation of counsel for Ms. Hansson that this case 

has previously been heard only by the District Court, and that there are no related 

cases pending before this or any other court.

rior. By filing this brief and accompanying Motion for Leave to File Amicus Curiae

Heather Elliott 
Wilmer Cutler Pickering 

Hale and Dorr LLP 
2445 M Street, N.W. 
Washington, DC 20037 
Telephone: (202) 663-6000 
Facsimile: (202) 663-6363

l



CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure and

Circuit Rule 26.1, the NAACP Legal Defense and Educational Fund, Inc. states 

that it is a nonprofit 501(c)(3) corporation formed to assist African-Americans in 

securing their constitutional rights through the prosecution of lawsuits and to 

provide legal services to black persons suffering injustice by reason of racial 

discrimination. It is not a publicly held company that issues stock.

n



TABLE OF CONTENTS

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED
CA SES................................................................................................................ ..i

CORPORATE DISCLOSURE STATEMENT............................................................ ii

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

STATUTES AND REGULATIONS........................      1

STATEMENT OF AMICUS CURIAE..................   1

SUMMARY OF ARGUMENT.....................     2

ARGUMENT..................................   4

I. ATTORNEY’S FEES FOR LEGAL REPRESENTATION AT
THE ADMINISTRATIVE LEVEL IN DISCRIMINATION 
CASES ARE ESSENTIAL TO THE PROPER FUNCTION­
ING OF TITLE VII.....................................................  4

A. Title VII Authorizes Fees to Encourage Victims of
Employment Discrimination to Seek Redress...................     4

B. Fees for Administrative Proceedings Are Equally
Essential........................................................................................   7

II. THE EEOC HAS LONG RECOGNIZED THE ESSENTIAL
CONNECTION BETWEEN FEES AND TITLE VII’S SUB­
STANTIVE GUARANTEES............................................................................ 10

III. THE DISTRICT COURT’S RATIONALE FOR DENYING
FEES TURNS TITLE VII POLICY REGARDING FEDERAL 
EMPLOYEES UPSIDE-DOWN.......................................................................14

A. The District Court’s Rule Creates Perverse Incentives For
Agencies To Deny Fees Without Justification..................................... 14

B. The District Court’s Rule Creates Perverse Incentives For
Claimants........................................................   17

m



IV. THE DISTRICT COURT’S RULE WOULD ALSO CAUSE 
OTHER FAR-REACHING HARMS AND IRRATIONAL RE­
SULTS, INCLUDING IN PRIVATE-EMPLOYER CASES........................ 21

CONCLUSION......................       24

CERTIFICATE OF COMPLIANCE.......................................................................... 25

CERTIFICATE OF SERVICE.....................................................................................26

IV



TABLE OF AUTHORITIES

CASES
Page(s)

Aware Woman Clinic, Inc. v. City o f Cocoa Beach, 629 F.2d 1146
(5th Cir. 1980).............................................................. .......................................5

Booker v. Brown, 619 F.2d 57 (10th Cir. 1980).......................................................... 6

Brown v. GSA, 425 U.S. 820 (1976)......................................................................7, 23

Chandler v. Roudebush, 425 U.S. 840 (1976)..................... ................. .................. 15

Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978)....................................5

Employers Reinsurance Corp. v. Mid-Continent Casualty Co., 358
F.3d 757 (10th Cir. 2004).................................................................................13

Evans v. JeffD ., 475 U.S. 717 (1985)........................................................................19

Fischer v. Adams, 572 F.2d 406 (1st Cir. 1978).........................................................5

Independent Federation o f Flight Attendants v. Zipes, 491 U.S. 754
(1989)............................................................................................. ..................... 5

Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974)............. 6

Jones v. American State Bank, 857 F.2d 494 (8th Cir. 1988)......................... 5, 6, 23

Kennedy v. Whitehurst, 690 F.2d 951 (D.C. Cir. 1982)................. ............................9

Kizas v. Webster, 707 F.2d 524 (D.C. Cir. 1983)............................................. 4 ,1, 21

Marshall v. Communication Workers o f America, 26 F.E.P. 1017 
(D.D.C. 1979)........................................................................... 20

Mclnnes v. California, 943 F.2d 1088 (9th Cir. 1991).............................................. 5

Motorola, Inc. v. Federal Express Corp., 308 F.3d 995 (9th Cir. 2002)............... 13

* New York Gaslight Club v. Carey, 447 U.S. 54 (1980).............2, 5, 13, 17, 21, 23

* Authorities on which we chiefly rely are marked with asterisks.

v



Noble v. Claytor, 448 F. Supp. 1242 (D.D.C. 1978)................................................ 11

North Carolina Department o f Transportation v. Crest Street Com­
munity Council, Inc., 479 U.S. 6 (1986)...................................................17, 19

* Parker v. Califano, 561 F.2d 320 (D.C. Cir. 1977)...................... . 6, 7, 8, 9, 17, 21

Patton v. Andrus, 459 F. Supp. 1189 (D.D.C. 1978)................................... ............ 11

Smith v. Califano, 446 F. Supp. 530 (D.D.C. 1978)....................................11, 12, 13

Unger v. Consolidated Foods Corp., 657 F,2d 909 (7th Cir. 1981),
rev’d on other grounds, 456 U.S. 1002 (1982)...............................................20

West v. Gibson, 527 U.S. 212 (1999)...................................................... .................. 10

Williams v. Boorstin, 451 F. Supp. 1117 (D.D.C. 1978), rev’d on
other grounds, 663 F.2d 109 (D.C. Cir. 1980)....................... .......................11

STATUTES, RULES AND REGULATIONS

42 U.S.C. § 1988(b).......................................................................................................19

42 U.S.C. § 2000e-5....................................................................................................... 4

42 U.S.C. § 2000e-5(f)(1)......          6

42 U.S.C. § 2000e-5(k)............................................................................................... .13

42 U.S.C. § 2000e-16(b).................................................................................. 3, 10, 12

42 U.S.C. §2000e-16(c)........................................................................................ .7, 16

29 C.F.R. § 1614.105............     7

29 C.F.R. § 1614.108(c).................................................................................................8

29 C.F.R. § 1614.108(f).................................................................................................8

29 C.F.R. § 1614.401...................................................     ....16

29 C.F.R. § 1614.405(a)...............................................................................................15

29 C.F.R. § 1614.407.................................   16

vi



29 C.F.R. § 1614.501(e)...................... ...........................................................11, 12, 15

Reorganization Plan No. 1 of 1978, 92 Stat. 3781, 43 Fed. Reg. 19807
(Feb. 23, 1978)...................................................................................    10

Executive Order No. 12106, § 1-101, 44 Fed. Reg. 1053 (Dec. 26,
1978)...................................................................   10

45 Fed. Reg. 24,130 (Apr. 9, 1980)................................................................10, 11, 12

Fed. R. App. P. 2 9 ..........................................................................................................2

D.C. Cir. Ct. R. 29..............................................................   .2

OTHER AUTHORITIES

Committee on Legal Ethics, District of Columbia Bar, Opinion
No. 147..............................................................................     19

D.C. Rule of Prof. Conduct 1.7(b)(4).......................................................................... 19

3 Larson, Lex K., Employment Discrimination (2d ed. 2003)
§64.02.......................................................................   16
§ 64.04.................................................................................................................. 8

4 Larson, Lex K., Employment Discrimination (2d ed. 2003)
§71.02.............................................................................  6
§§73.01-73.06.................................................................     6
§§75.01-75.03.....................................................................................................6

1 Richey, Charles R., Manual on Employment Discrimination & Civil 
Rights (2d ed. 2004)
§ 1:11. . . . .................................................................................................................................................. 7

vii



STATUTES AND REGULATIONS

All applicable statutes and regulations are contained in Appellant’s brief.

STATEMENT OF AMICUS CURIAE

The NAACP Legal Defense and Educational Fund, Inc. (“LDF”) submits

this brief as amicus curiae with the consent of the parties as described in the ac­

companying Motion for Leave to File Brief Amicus Curiae. This amicus brief 

supports appellant Marian K. Hans son’s argument that the federal courts have ju­

risdiction over a lawsuit brought to recover attorney’s fees when the plaintiff has 

successfully resolved her discrimination claim before an administrative agency.

LDF is a non-profit corporation established under the laws of the State of 

New York. It was formed to assist African-Americans in securing their constitu­

tional rights through the prosecution of lawsuits and to provide legal services to 

black persons suffering injustice by reason of racial discrimination. For more than 

six decades LDF attorneys have represented parties in federal and state litigation 

involving race discrimination.

LDF, through its own attorneys and cooperating attorneys, frequently pro­

vides legal assistance to minority individuals in employment discrimination cases 

at both the administrative and judicial levels. LDF therefore has a direct interest 

in the outcome of this case and, because of its systemic interest in the availability 

of fees for legal work done at the administrative level (and ensuring that such fees

1



are recoverable through judicial action if denied by the agency), has a broader per­

spective than that of the plaintiff-appellant.

LDF files this brief under the authority of Fed. R. App. P. 29 and Circuit 

Rule 29. Although LDF did not, within 60 days of docketing, notify the Court of 

its intention to file this brief, it has obtained the consent of all parties as described 

in the accompanying Motion for Leave to File Brief Amicus Curiae and is filing 

the brief within the time specified by Fed. R. App. P. 29. Thus this brief may be 

accepted by the clerk of the Court under Circuit Rule 29(b).

SUMMARY OF ARGUMENT

Title VII establishes an anti-discrimination “policy of the highest priority” 

New York Gaslight Club v. Carey, 447 U.S. 54 (1980). The District Court under­

mined that policy in concluding that it lacked subject-matter jurisdiction over Ms. 

Hansson’s lawsuit, which was filed solely to obtain a reasonable attorney’s fee un­

der the statute. As Ms. Hansson’s brief demonstrates, the District Court’s decision 

runs counter to the text and purposes of Title VII, the precedent of this Court and 

the Supreme Court, and the role that Congress established for private enforcers of 

Title VII. LDF supports Ms. Hansson’s appeal and submits this brief amicus cu­

riae to emphasize the following additional points.

First, attorney’s fees are vital to the proper functioning of Title VII. Title 

VII authorizes fees so that victims of employment discrimination will have the

2



means to seek redress for that discrimination, whether the work of enforcing Title 

VII occurs at the administrative or judicial level. Given that federal employees 

must always proceed against the very agency they claim has discriminated, the 

need for legal assistance in such cases is particularly acute. Far from being collat­

eral to Title VII relief, attorney’s fees are an essential component of such relief.

Second, that essential connection has long been recognized by the EEOC, 

the federal agency with primary authority for interpreting Title VII. Indeed, the 

EEOC’s regulation authorizing agencies to grant fees is predicated on the EEOC’s 

power to implement Title VII “through appropriate remedies,” 42 U.S.C. § 2000e- 

16(b), establishing that fees are an inherent component of Title VII’s remedies.

Third, the District Court’s rationale for interpreting Title VII to preclude Ms. 

Hansson’s lawsuit turns Title VII policy regarding federal employees upside-down. 

On the District Court’s reasoning, an agency’s determination to deny or reduce 

fees when a claimant is otherwise successful would be unreviewable in a federal 

court. Administrative agencies would thus have strong incentives to deny fees in 

such cases, making it more difficult for claimants with the strongest claims to vin­

dicate their Title VII rights, and reducing the effective enforcement of federal anti- 

discrimination law. At the same time, claimants would have strong incentives to 

short-circuit administrative proceedings in favor of lawsuits whenever possible, 

undermining Congress’s determination that federal agencies should have “‘primary

3



responsibility’ for maintaining nondiscrimination in employment,” Kizas v, Web­

ster, 707 F.2d 524, 544 (D.C. Cir. 1983) (quoting 42 U.S.C. § 2000e-16(e)).

Finally, such pernicious effects would not be limited to claims of federal 

employment discrimination: On the District Court’s logic, neither federal employ­

ees nor any other Title VII claimant would be able to bring a fee-only lawsuit. Ti­

tle VII is easily constmed, and should be constmed, to avoid the irrationality 

caused by the District Court’s decision. LDF joins Ms. Hansson in asking this 

Court to reverse the District Court’s decision and remand for further proceedings.

ARGUMENT

I. ATTORNEY’S FEES FOR LEGAL REPRESENTATION AT THE
ADMINISTRATIVE LEVEL IN DISCRIMINATION CASES ARE ES­
SENTIAL TO THE PROPER FUNCTIONING OF TITLE VII.

A. Title VII Authorizes Fees to Encourage Victims of Employment 
Discrimination to Seek Redress.

Attorney’s fees are central to the vindication of the rights that Congress 

guaranteed in Title VII. Indeed, the connection in Title VII between fees and the 

right to be free from unlawful discrimination is literally close: The very section of 

the statute that authorizes employees to enforce their Title VII rights also author­

izes attorney’s fees for those who succeed in obtaining relief. See 42 U.S.C.

§ 2000e-5. But that connection is also a matter of remedy for unlawful discrimina­

tion: “One aspect of complete relief [in a Title VII case] is an award of attorney’s 

fees, which Congress considered necessary for the fulfillment of federal goals.”

4



Carey, 447 U.S. at 68. Thus, the provision in Title VII for award of attorney’s fees 

is not “collateral” to the substance of the rights guaranteed by that statute. To the 

contrary, Congress recognized that, absent an award of fees, a discrimination plain­

tiff simply will not be made whole.1

Title VII’s provision for award of fees also implements the robust national 

commitment to eradication of unlawful employment discrimination. The Supreme 

Court has emphasized that “Congress has cast the Title VII plaintiff in the role of a 

private attorney general, vindicating a policy of the highest priority, [and] a pre­

vailing plaintiff ordinarily is to be awarded attorney’s fees in all but special cir­

cumstances.” Id. at 63 (internal quotation marks and citations omitted). Congress 

intended to “make it easier for a plaintiff of limited means to bring a meritorious 

suit.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 420 (1978) (quoting 

110 Cong. Rec. 12724 (1964) (remarks of Sen. Humphrey)).2

See also Mclnnes v. California, 943 F.2d 1088 (9th Cir. 1991) (“[T]he most 
complete relief possible . . . clearly includes attorney’s fees.”); Jones v. American 
State Bank, 857 F.2d 494, 498 (8th Cir. 1988) (quoting Carey)', Aware Woman 
Clinic, Inc. v. City o f Cocoa Beach, 629 F.2d 1146, 1149 (5th Cir. 1980) (same); 
Fischer v. Adams, 572 F.2d 406, 411 (1st Cir. 1978) (“[Attorney’s fees . . . [were] 
part of [claimant’s] full relief.”).

See also Independent Fed’n o f Flight Attendants v. Zipes, 491 U.S. 754, 761 
(1989) (“It is of course true that the central purpose of § [2000-e5(k)] is to vindi­
cate the national policy against wrongful discrimination by encouraging victims to 
make the wrongdoers pay at law-—assuring that the incentive to such suits will not 
be reduced by the prospect of attorney’s fees that consume the recovery.”); Jones

5



Moreover, as Judge Skelly Wright observed, “[t]he policy favoring private 

enforcement of Title VII is arguably even more compelling when a federal agency 

or official is the defendant.” Parker, 561 F.2d at 331. When an individual em­

ployed by a private employer files a discrimination complaint with the Equal Em­

ployment Opportunity Commission (EEOC), the staff of the EEOC (or a state de­

ferral agency) may be available to assist the claimant in investigating the employ­

ment practice, arranging for mediation and conciliation efforts with the employer, 

and eventually (if the EEOC finds the complaint to have merit), bringing suit 

against the employer. See 4 Lex K. Larson, Employment Discrimination §§ 71.02, 

73.01-.7306, 75.01-75.03 (2d ed. 2003). The Department of Justice may similarly 

bring suit on behalf of employees of state or local government agencies. See 42 

U.S.C. § 2000e-5(f)(l). Federal employees, however, can call on no such govern­

mental assistance in pursuing their discrimination claims. “Indeed, the Attorney

v. American State Bank, 857 F.2d 494, 499 (8th Cir. 1988) (“[Alttomey’s fees 
awards are essential to the aims of Title VII.”); Booker v. Brown, 619 F.2d 57, 60 
(10th Cir. 1980) (attorney’s fees for administrative proceedings should be awarded 
to fulfill “strong underlying policies which call for full recognition of the federal 
remedies contained in” Title VII); Parker v. Califano, 561 F.2d 320, 330 (D.C. Cir. 
1977) (Skelly Wright, J.) (“[T]he attorney fee provision of Title VII has the broad 
purpose of abetting enforcement of that Title by encouraging individuals injured by 
racial discrimination to seek the relief made available thereunder.”); Johnson v. 
Georgia Highway Express, Inc., 488 F.2d 714, 716 (5th Cir. 1974) (“This Court, as 
part of its obligation ‘to make sure that Title VII works,’ has liberally applied the 
attorney’s fee provision of Title VII, recognizing the importance of private en­
forcement of civil rights legislation.” (footnote omitted)).

6



General is frequently counsel for the other side.” Parker v. Califano, 561 F.2d 

320, 331 (1977). Thus, federal employees with Title VII complaints “are the only 

attorneys general under the enforcement scheme adopted in [§ 2000e-16],” which 

outlaws employment discrimination in the federal government. Id. Federal em­

ployees hold a privileged yet unenviable position: Only they, with help from their 

attorneys, can assert their rights under Title VII.

B. Fees for Administrative Proceedings Are Equally Essential.

Congress in Title VII “providefd] for a careful blend of administrative and

judicial enforcement powers.” Brown v. GSA, 425 U.S. 820, 833 (1976). Admin­

istrative proceedings for federal employees seeking relief under Title VII are man­

datory: They must first seek resolution within their agency. 42 U.S.C. § 2000e- 

16(c); 29 C.F.R. § 1614.105. This requirement “is part and parcel of the congres­

sional design to vest in the federal agencies and officials engaged in hiring and 

promoting personnel ‘primary responsibility’ for maintaining nondiscrimination in 

employment.” Kizas v. Webster, 707 F.2d 524, 544 (D.C. Cir. 1983) (quoting 42 

U.S.C. § 2000e-16(e)).

See also 42 U.S.C. § 2000e-16(c) (authorizing civil action in federal em­
ployment discrimination claim by an “employee or applicant for employment”); 1 
Charles R. Richey, Manual on Employment Discrimination & Civil Rights § 1:11, 
at 1-28 (2d ed. 2004) {“Only individual [federal] employees either on their own 
behalf or as a class representative may bring a Title VII suit.” (emphasis in origi­
nal)).

7



These mandatory administrative proceedings are not easily navigated by a 

layperson. The EEOC regulations governing such proceedings provide for discov­

ery with various penalties for discovery violations, see 29 C.F.R. § 1614.108(c),4 

and require the complainant to decide whether to seek a hearing, see id, 

§ 1614.108(f). Any hearing “is of a traditional adjudicatory type, involving sworn 

testimony, the right to cross-examine witnesses, and a verbatim transcript.” 3 Lar­

son, Employment Discrimination § 64.04, at 64-22.2 to 64-23. As this Court noted 

in Parker, at an administrative hearing the federal employee “is expected to put 

evidence into the record, offer proof, argue against exclusion of evidence, agree on 

stipulations, and examine and cross-examine witnesses.” 561 F.2d at 332.

Moreover, federal employees must first complain, not to “an independent 

state or local administrative body or to EEOC, but to the very agency about whose

29 C.F.R. § 1614.108(c) provides, inter alia, that ‘‘[t]he complainant . . . 
shall produce such documentary and testimonial evidence as the [agency’s] inves­
tigator deems necessary,” id. § 1614.108(c)(1); that agency investigators may “ad­
minister oaths,” and that “statements of witnesses shall be made under oath or af­
firmation, or, alternatively, by written statement under penalty of perjury,” id. 
§ 1614.108(c)(2); and that, “[wjhen the complainant. . . fail[s] without good cause 
shown to respond fully and in timely fashion to” the investigator’s discovery re­
quests, the investigator may recommend that the agency decisionmaker (or the 
EEOC on appeal) “[d]raw an adverse inference that the requested information . . . 
would have reflected unfavorably on the party”; “[cjonsider the [pertinent] matters 
. . . established in favor of the opposing party”; “[e]xclude other evidence offered 
by the party”; “[i]ssue a decision fully or partially in favor of the opposing party”; 
or “[t]ake such other actions as it deems appropriate.” Id. § 1614.108(c)(3).

8



practices they are complaining.” Id. at 331. It is thus no surprise that this Court 

has held that “[a]ny realistic assessment of Title VII administrative proceedings re­

quires the conclusion that despite the fact they are not strictly adversarial an em­

ployee would often be ill-advised to embark thereon without legal assistance.” Id. 

at 332. And even if Title VII administrative proceedings are “not strictly adversar­

ial,” id., they are certainly “quasi-adversarial,” Kennedy v. Whitehurst, 690 F.2d 

951, 964 (D.C. Cir. 1982). In those proceedings, “the agency’s representative is 

likely to be a lawyer, which can only serve to exacerbate a non-lawyer plaintiffs 

disadvantage.” Parker, 561 F.2d at 332.

This Court therefore recognized in Parker that, for federal employees to 

have a realistic chance of succeeding on Title VII claims before their agencies, at­

torney’s fees must be available for representation provided during Title VII admin­

istrative proceedings as well as for representation provided during litigation. See 

Parker, 561 F.2d at 333. If such fees were not available, the Court feared, “[ejven 

when discrimination is patent, an employee might view his Title VII rights as not 

‘worth’ enforcing if he knew he would have to bear the cost of attorneys’ fees for 

the administrative proceedings that are a necessary first step.” Id. at 334. Such 

fees therefore “implement[] both the letter and the central spirit of Title VII.” Id. 

at 339.

9



II. THE EEOC HAS LONG RECOGNIZED THE ESSENTIAL CON­
NECTION BETWEEN FEES AND TITLE VII’S SUBSTANTIVE
GUARANTEES.

Congress has granted the EEOC a uniquely important role in enforcing Title 

VII in federal agencies; although the EEOC does not represent the interests of the 

claimant in agency adjudications, the EEOC has authority to enforce the statute 

“through appropriate remedies.” 42 U.S.C. § 2000e-16(b); see generally West v. 

Gibson, 527 U.S. 212 (1999). Exercising that authority, the EEOC has recognized 

the necessity of fees for federal administrative proceedings under Title VII almost 

from the moment it became responsible for those proceedings in 1978.5 By 1980, 

the EEOC had promulgated regulations providing that agencies should grant fees 

for legal work done in federal administrative proceedings when the discrimination 

claim is successfully resolved before the agency. See 45 Fed. Reg. 24,130, 24,131- 

24,133 (Apr. 9, 1980). As the EEOC explained, “the purpose of this proposal is to 

effectuate the policies of Title VII by permitting full remedial relief during the ad­

ministrative processing of complaints by agencies and the Commission.” Id. at 

24,130.

Jurisdiction over federal employment discrimination complaints was trans­
ferred from the Civil Service Commission to the Equal Employment Opportunity 
Commission in 1978. See Reorganization Plan No. 1 of 1978, 92 Stat. 3781, 43 
Fed. Reg. 19,807 (Feb. 23, 1978); Executive Order No. 12106, § 1-101, 44 Fed. 
Reg. 1053 (Dec. 26, 1978).

10



The EEOC’s regulations had the effect of codifying Smith v. Califano, 446 

F. Supp. 530 (D.D.C. 1978), in which the District Court for the District of Colum­

bia held that “from the clear acknowledgement by Congress elsewhere in the legis­

lative history of the importance of awarding attorneys’ fees, including those for 

services at the administrative level, it must be concluded that [42 U.S.C. § 2000e- 

16(b)] provides the authority for [an agency] to make such awards.” Id. at 534; see 

also Patton v. Andrus, 459 F. Supp. 1189 (D.D.C. 1978) (same); Williams v. Boor- 

stin, 451 F. Supp. 1117 (D.D.C. 1978) (same), rev’d on other grounds, 663 F.2d 

109 (D.C. Cir. 1980); but see Noble v. Claytor, 448 F. Supp. 1242 (D.D.C. 1978).

The EEOC regulations emphasize the essential connection between fees and 

the substance of the rights guaranteed by Title VII.6 Indeed, the connection inheres 

in the source of the EEOC’s authority to provide for fees for claimants who prevail 

in the administrative process; the EEOC’s authority to provide for such fees arises

6 The EEOC made a literal connection between the two by requiring federal 
agencies to determine entitlement to fees in the same decision that resolves the dis­
crimination claim. See 29 C.F.R. § 1614.501(e) (“In a decision or final action, the 
agency, administrative judge, or Commission may award the [claimant] reasonable 
attorney’s fees (including expert witness fees) and other costs incurred in the proc­
essing of the complaint.”); 45 Fed. Reg. at 24,130 (Apr. 9, 1980) (“When discrimi­
nation covered by Title VII is found, the final agency decision must contain a de­
termination of whether the complainant is entitled to attorney’s fees and costs.”); 
id. at 24,131 (the regulations “provide that decisions of an agency are not final un­
til the agency has made a determination on both the entitlement to and the amount 
of any attorney’s fee awards”).

11



from its authority under 42 U.S.C. § 2000e- 16(b) to enforce Title VII’s substantive 

requirements through “appropriate remedies.” See 29 C.F.R. § 1614.501(e) (for­

merly 29 U.S.C. § 1613.271(c)). In promulgating the regulations, the EEOC stated 

that it had “determined that the regulation is necessary and appropriate to carry out 

the policies of [§2000e-16].” 45 Fed. Reg. at 24,130. That language invokes the 

agency’s power under the statute “to enforce the provisions of [the section] 

through appropriate remedies . . .  as will effectuate the policies of this section.” 42 

U.S.C. § 2000e-16(b).

When the EEOC promulgated the attorney’s fees regulation, the district 

court had already determined in Smith that “one of the central policies of Title VII 

is to make whole the person who has been subjected to discrimination, and an 

award of attorney’s fees is a significant means of accomplishing that.” 446 F. 

Supp. at 533 (citing Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975); 

Parker, 561 F.2d at 330-31). Smith concluded—as did the EEOC itself later—that 

the agency’s power to enforce Title VII “through appropriate remedies . . . can be 

read to permit the agency to award attorneys’ fees, thereby making whole one who 

prevails before it.” 446 F. Supp. at 533; see also 45 Fed. Reg. at 24,130.7

The Smith court found additional support for this proposition in the legisla­
tive history of § 2000e-16(b), which stated that “‘any remedy needed to fully rec­
ompense the employee for his loss, both financial and professional’ would be ap­
propriate.” 446 F. Supp. at 534 (quoting 118 Cong. Rec. 7169-70 (1972) (remarks

12



This authority refutes the contention, made by the Government below and 

adopted by the District Court, that fees for legal work performed at the administra­

tive level are merely “collateral” to Title VII relief. The District Court in this case 

concluded that Title VII provides for attorney’s fees to be paid “as part of the 

costs,” 42 U.S.C. § 2Q00e-5(k), and that “by specifying that attorneys’ fees may be 

awarded as part of the costs of an action under Title VII, [that subsection] implies 

that such fees form part of the ancillary relief which, in its discretion the court may 

provide to the prevailing party in an action to enforce rights guaranteed by Title 

VII.” JA 52.* 8 Whatever might be said about attorney’s fees awarded for work per­

formed in judicial proceedings (a question not presented in this matter), the District 

Court’s analysis cannot be squared with controlling authority that has long recog­

nized that attorney’s fees for representation at the administrative level are “one as­

pect of complete relief’ under Title VII. See Carey, 447 U.S. at 68. Ihus, while 

in other circumstances, fees may be collateral to the merits of a claim, Congress 

established long ago that fees are integral to the remedies provided by Title VII,

of Sen. Williams)). “A broader interpretation of the agency’s authority could not 
have been expressed.” Id.

8 Notably, the District Court’s assertion on this matter cites no Title VII case, 
nor even a case under another federal civil rights statute, nor even any case from 
this Circuit, but instead relies on a Tenth Circuit insurance contract case, see Em­
ployers Reinsurance Corp. v. Mid-Continent Cas. Co., 358 F.3d 757 (10th Cir. 
2004), and a Ninth Circuit case under the Warsaw Convention, see Motorola, Inc. 
v. Federal Express Corp., 308 F.3d 995 (9th Cir. 2002).

13



and claimants who file “fee-only” suits under Title VII are merely seeking the 

complete relief guaranteed them under the law.

III. THE DISTRICT COURT’S RATIONALE FOR DENYING FEES
TURNS TITLE VII POLICY REGARDING FEDERAL EMPLOYEES
UPSIDE-DOWN.

As appellant explains in her brief, permitting federal employees to sue to ob­

tain fees not granted at the administrative level, or (as is the case here), to chal­

lenge the amount of fees awarded, comports with the language and purpose of Title 

VII, the role of administrative proceedings under Title VII, the Supreme Court’s 

position in Carey, Congress’s ratification of Carey, and the EEOC’s interpretation 

of the statute. If the contrary view is taken—if the federal courts cannot hear an 

action to award attorney’s fees when a claimant is wholly successful before an ad­

ministrative agency, as Ms. Hansson was here—the enforcement system contem­

plated by Title VII would be turned on its head. Such a rule would create perverse 

incentives for both agencies and claimants and would, paradoxically, treat weak 

claims more favorably than strong claims. These problems would extend beyond 

the realm of federal employment discrimination law and affect all Title VII claim­

ants.

A. The District Court’s Rule Creates Perverse Incentives For Agen­
cies To Deny Fees Without Justification.

The rule adopted below will inevitably tempt agencies to grant only partial 

fee awards, or to deny fees altogether. As the EEOC regulations specify, agencies

14



must pay fee awards from their own budgets. See 29 C.F.R. § 1614.501(e)(l)(ii) 

(“Any award of attorney’s fees or costs shall be paid by the agency.”). If agencies 

knew that successful civil rights claimants would have no recourse to the federal 

courts for fees, they would have every reason to drastically reduce fee awards (if 

not eliminate them altogether).

The Secretary contended below that Ms. Hansson’s appropriate remedy was 

through an appeal to the EEOC, and that, even if the Department of the Interior 

was recalcitrant on fees out of self-interest, the EEOC would not be. But there is a 

crucial difference between a civil suit to recover fees for legal work performed at 

the administrative level and an appeal to the EEOC from an agency decision deny­

ing or reducing a request for fees: the standard of review. In a civil action under 

Title VII (whether to recover fees or otherwise), the courts exhibit no deference to 

the decision of the employer agency. See, e.g., Chandler v. Roudebush, 425 U.S. 

840, 861 (1976) (Congress “selected trial de novo as the proper means for resolv­

ing the claims of federal employees”). But when an employee appeals from an 

agency decision to the EEOC, the EEOC will uphold any factual findings of an 

agency administrative law judge if they are supported by substantial evidence, see 

29 C.F.R. § 1614.405(a), including any findings by an ALJ on the question of at­

torney’s fees, see 29 C.F.R. § 1614.501(e). In any event, Congress allows claim­

ants to elect whether to proceed before the EEOC itself or before a federal court.

15



See 42 U.S.C. § 2000e-16(c); 29 C.F.R. §§ 1614.401, 1614.407; see also 3 Larson, 

Employment Discrimination § 64.02, at 64-7 (“[Ajppeal to the EEOC is optional, 

not mandatory.”). Congress has decided that either route should be available, and 

gave no indication that the routes for appeal are altered when the only issue re­

maining is a fee claim.

The rule adopted by the District Court also creates a larger and particularly 

perverse incentive: Once an agency knows it has the freedom to deny or drasti­

cally reduce fees, it will have less reason to avoid discriminatory practices. If, 

without the possibility of judicial scrutiny of their fee decisions, federal agencies 

habitually deny fees or issue only meager fee awards, secure in the knowledge that 

they will not be overturned by the courts, then individual federal employees who 

have been subjected to discrimination will be deterred from challenging acts of 

discrimination. Employees (and their prospective lawyers) will know that they 

will have little hope of recovering fees before the agency even if they prevail; thus, 

lawyers will see little benefit in taking on even a strong case that might be resolved 

before the agency. Since exhaustion of the discrimination claim before the agency 

is a mandatory prerequisite for pursuit of a Title VII claim against a federal agency 

in court, judicial enforcement of Title VII is likely to be diminished as well. With­

16



out vigorous administrative and judicial enforcement by claimants, federal agen­

cies will not be held to the standards of Title VII.9

B. The District Court’s Rule Creates Perverse Incentives For Claim­
ants.

The rule adopted below also creates perverse incentives for claimants. First, 

at least some claimants might benefit by avoiding resolution of claims at the ad­

ministrative level. Especially if the amount of fees that the claimant might hope to 

recover is substantial, the claimant would have an incentive to leave some merits 

issue unresolved to give the federal courts jurisdiction to hear the fee claim. As the 

Supreme Court wrote in Carey, “if fees were authorized only when the complain­

ant found an independent reason for suing in federal court under Title VII, such a 

ground almost always could be found.” 447 U.S. at 66 n.6. In addition, if fees for 

administrative work are doubtful, “then the complainant and his attorney might 

well decide that, at the administrative level, they could not afford to take the time 

necessary to develop complainant’s case carefully and fully.” Parker, 561 F.2d at 

334; c f Carey, 447 U.S. at 65 (“Complainants unable to recover fees in state pro­

ceedings may be expected to wait out the 60-day deferral period, while focusing

These incentives exist because, under Title VII, administrative proceedings 
are mandatory. As appellant has explained (Appellant’s Brief at 26-31), the instant 
case thus contrasts sharply with North Carolina Department o f Transportation v. 
Crest Street Community Council, Inc., 479 U.S. 6 (1986). That case concerned 
Title VI, which has no mandatory administrative process (and, indeed, no 
jurisdiction-conferring provision and no attorney’s fees provision).

17



efforts on obtaining federal relief. . . . Only authorization of fee awards ensures in­

corporation of state procedures as a meaningful part of the Title VII enforcement 

scheme.”).

The District Court’s rule may create an incentive for a claimant not to settle 

with the agency. For example, in the instant case, Ms. Hansson entered a “Resolu­

tion Agreement” that purported to provide “substantially all of the relief she had 

sought in her complaints” by, inter alia, determining that she was entitled to an 

award of attorney’s fees—fees that, under a retainer agreement, she had already 

incurred. Appellant’s Br. 5-7. But the agency then awarded attorney’s fees in a 

drastically reduced amount: Of the $37,077.94 sought, the agency awarded only 

$8,959.44. Had Ms. Hansson known that she would be left so out-of-pocket, and 

had she known that the District Court would require a merits “hook” for jurisdic­

tion, she might have insisted that the settlement leave some insignificant merits is­

sue unresolved. Of course, the agency might have refused, but in that event Ms. 

Hansson would have been able to pursue her discrimination case, including her 

claim for fees, in court. Because Congress has expressed a strong preference for 

administrative resolution of federal employment discrimination claims, such a re­

sult is wholly inconsistent with Title VII.

This incentive to move Title VII complaints to court is not due, as the Secre­

tary seems to believe, to the bad faith of attorneys who have a mercenary interest

18



solely in their fees. Of course, every attorney has an ethical obligation to act in her 

client’s interest, regardless of the personal benefit to the attorney.10 But it is the 

claimant, no less than the attorney, who has a significant interest in recovering her 

attorney’s fees. This is particularly true since Evans v. Jeff D., 475 U.S. 717 

(1986), which held (in case involving 42 U.S.C. § 1988) that a court may approve a 

settlement of a civil rights case that has been conditioned on the attorney’s being 

obligated to waive any claim for fees. Since the Evans decision, the typical 

arrangement between attorneys and clients pursuing civil rights claims has shifted: 

frequently, attorneys and clients now enter into a retainer agreement under which 

claimants pay their lawyers during the representation, with a view to obtaining re­

imbursement from any ultimate fee award. Such claimants will have made sub­

stantial payments to their lawyers and will not find any settlement attractive unless 

it provides for attorney’s fees.11

See, e.g., D.C. Rule of Prof. Conduct 1.7(b)(4) (a lawyer may not represent a 
client if “the lawyer’s professional judgment on behalf of the client will be or rea­
sonably may be adversely affected by . . . the lawyer’s own financial . . . inter­
ests”); see also Committee on Legal Ethics, District of Columbia Bar, Opinion No. 
147 (“Plaintiffs counsel owes undivided loyalty to the client and is obliged to ex­
ercise his judgm ent. . . free from the influence of his or her organization’s interest 
in a fee.” (citing ABA Model Code § 5-101(A)).

11 We note that Jeff D. was decided less than six months before Crest Street, 
479 U.S. at 6. Thus, when the Court in Crest Street analyzed the incentives likely 
to be created by its mling that fee-only lawsuits were not permitted under Title VI 
and 42 U.S.C. § 1988(b), it could not have known the extent to which Jeff D.

19



Paradoxically, under the District Court’s rule, claimants with weaker cases 

would have a better chance of obtaining fees that those claimants who have obvi­

ously winning cases. A claimant with a relatively weak case will likely not 

achieve complete success before the agency, and will therefore always be able to 

invoke the jurisdiction of the federal courts under the rale applied by the District 

Court below. If that claimant achieves even a modicum of success on her claim, 

she will be able to claim fees, not only for the litigation, but also for the preceding 

administrative effort, even if she was entirely unsuccessful before the agency. See, 

e.g., Marshall v. Communication Workers o f Am., 26 F.E.P. 1017 (D.D.C. 1979) 

(party’s loss at administrative stage does not affect entitlement for fees for that 

work); c f, e.g., Unger v. Consol Foods Corp., 657 F.2d 909 (7th Cir. 1981), rev’d 

on other grounds, 456 U.S. 1002 (1982) (fees available for administrative work 

when plaintiff loses at state administrative level but prevails in federal court).

Congress certainly did not intend those with the strongest claims—those 

most in need of Title VII’s protection-—to be deprived of the legal assistance nec­

essary to vindicate their rights. Just as “[i]t would be anomalous to award fees to 

the complainant who is unsuccessful or only partially successful in obtaining state 

or local remedies, but to deny an award to the complainant who is successful in

would cause many attorneys to revise the fee agreements under which they would 
accept civil rights representation.

20



fulfilling Congress’ plan that federal policies be vindicated at the state or local 

level,” Carey, 447 U.S. at 66, so it would be anomalous to award fees to the com­

plainant who achieves only partial success before the agency, and yet to deny fees 

to the complainant who fulfills Congress’s directive that administrative proceed­

ings be the primary fomm for resolution of federal employment discrimination

claims, see, e.g., Kizas, 707 F.2d at 544. This very anomaly, however, results from 

12the decision below.

IV. THE DISTRICT COURT’S RULE WOULD ALSO CAUSE OTHER 
FAR-REACHING HARMS AND IRRATIONAL RESULTS, 
INCLUDING IN PRIVATE-EMPLOYER CASES.

As explained in Ms. Hansson’s brief (Appellant’s Br. 22-26), the Supreme 

Court held “it is clear that Congress intended to authorize fee awards for work 

done in administrative proceedings, [and] we must conclude that [Title VII’s] au­

thorization of a civil suit in federal court encompasses a suit solely to obtain an 

award of attorney’s fees.” Carey, 447 U.S. at 66. The Government has argued that 

Carey does not apply to a case like the present one because that decision involved 

a situation where the state agency before which the claimant prevailed could not

C f also Parker, 561 F.2d at 331 (“Especially in an instance where develop­
ment of a thorough administrative record results in an abbreviated but successful 
trial, refusing to award attorneys’ fees for work at the administrative level would 
penalize the lawyer for his pre-trial effectiveness and his resultant conservation of 
judicial time. Simply to describe the operation of appellant’s suggested distinction 
between attorneys’ fees at the administrative and judicial levels is to emphasize its 
irrationality.”).

21



itself have granted fees (as a matter of state law), and so suit in federal court was 

the only possible avenue for fees. See Brief for the Respondent in Opposition to 

Certiorari 16-18, Chris v. Tenet (U.S. Jan. 2001) (No. 00-829), available at 2001 

WL 34117419. In this case, by contrast, the agency can grant fees, and so (accord­

ing to the Government) Carey does not apply.13

This position would seem to suggest that a fee-only lawsuit lies when, but 

only when, fees are unavailable from the agency that has entertained and resolved 

the discrimination complaint. That position is completely untethered from any 

language in the statute and reflects no rational policy. If the language of § 2000e- 

5(e) means what the District Court here said it means, then there would seem to be 

no room for any kind of fee-only lawsuit, regardless of the availability of fees be­

fore the agency. The District Court held that a fee-only lawsuit does not come 

within the language of § 2000e-5(f)(3), which gives the federal courts jurisdiction 

over “action[s] brought under this subchapter.” JA 59. By the same reasoning, 

federal courts would also lack jurisdiction over similar claims by private employ­

ees who have succeeded in state administrative proceedings but have not obtained 

fees. That interpretation, however, is flatly inconsistent with Carey, where the

13 As explained in appellant’s brief at 26-31, and supra notes 9 and 11, Crest 
Street did not purport to overrule Carey.

22



Court held that Congress intended for fees to be available and that claimants could 

file fee-only lawsuits to obtain them. See 447 U.S. at 66.

In any event, it would make absolutely no sense for the jurisdiction of the 

federal courts in Title VII cases to depend on the happenstance of whether a state 

agency has the authority to award fees. Nor would it make sense for the jurisdic­

tion of the courts over fee-only lawsuits to depend on whether a claim of discrimi­

nation in a private-employer case was resolved before the EEOC or before a state 

deferral agency. Title VII is a federal law of paramount importance, and its en­

forcement in the courts cannot depend on the vagaries of state laws. C f Jones, 857 

F.2d at 498 (“We find no indication that Congress intended Title VII, by its system 

of state deferral, to leave the execution of Title VII’s goals exclusively to the judg­

ment of state officials.”).

The federal courts’ jurisdiction equally does not depend on the agency’s 

power to grant fees. Congress in Title VII “provide[d] for a careful blend of ad­

ministrative and judicial enforcement powers.” Brown, 425 U.S. at 833. And it 

also specified that a claimant unhappy with her agency’s resolution of a claim may 

appeal that decision either to the EEOC or to a federal district court. As already 

explained above, see supra p. 15, Congress emphatically did not provide that the 

power of administrative agencies to resolve questions defeats the jurisdiction of the 

federal courts to rule on the same question.

23



If the District Court’s rule were to be accepted, Congress’s goal of creating 

private attorneys general to enforce the requirements of Title VII would be under­

mined: Those with the strongest claims, whether in federal or state administrative 

proceedings, would ultimately have to pay from their own pockets what Congress 

decided should be paid by those who violate Title VII, while those with weaker 

claims, who obtain a less-than-complete victory in administrative proceedings and 

go on to achieve some measure of success in federal court, would be able to obtain 

a fee award. The statute is easily construed, and should be construed, to avoid this 

irrational result.

For the reasons given above, amicus curiae NAACP Legal Defense and 

Educational Fund, Inc. supports Ms. Hansson’s appeal, and respectfully requests 

that this Court grant the relief she has requested.

CONCLUSION

Dated: November 16, 2004

Paul R.Q. Wolfson 
Heather Elliott 
WiLMER Cutler Pickering 

Hale and Dorr LLP 
2445 M Street, N.W. 
Washington, DC 20037 
Telephone: (202) 663-6000 
Facsimile: (202) 663-6363

24



I hereby certify that the foregoing brief is in compliance with the word limi­

tations set forth in Federal Rules of Appellate Procedure 29(d) and 32(a)(7)(C) be­

cause this brief contains 6,106 words, excluding the parts of the brief exempted by 

Federal Rule of Appellate Procedure 32(a)(7)(B)(iii).

Dated: November 16, 2004

CERTIFICATE OF COMPLIANCE

25



CERTIFICATE OF SERVICE

I hereby certify that two copies of the foregoing brief have been served this 

16th day of November, 2004, by hand-delivery upon the following:

David C. Vladeck 
Georgetown University Law Center 
Institute for Public Representation 
600 New Jersey Avenue, N.W.
Washington, DC 20001

Marina Utgoff Braswell
Assistant United States Attorney, Civil Division 
555 4th Street, N.W.
Washington, DC 20530

Dated: November 16, 2004
Pa Jfson

26

US1DOCS 4788186v6