Chisom v. Roemer Brief of Respondents in Opposition

    Nos. 77-2059 and 77-2060

IN THE UNITED STATES COURT OP APPEALS 
FOR THE DISTRICT OP COLUMBIA CIRCUIT

3ARBARA COPELAND,
Plaintiff-Appellant,

v.
SAMUEL R. MARTINEZ,

Defendant-Appellee.

ON APPEAL PROM THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OP COLUMBIA CIRCUIT

BRIEF FOR THE APPELLEE

BARBARA ALLEN BABCOCK,
Assistant Attorney General

EARL J. SILBERT,
United States Attorney,

ROBERT E. KOPP,
ALICE L. MATTICE,

Attorneys,
Department of Justice, 
Civil Division,
Appellate Section, 
Washington, D.C. 20530,
Phone: (202) 739-3259.



INDEX
Page

Question Presented---------------------------------------  1
References To Parties And Rulings------------------------  1
Statement of the Case:

|1. Nature of the case------------------------------  2
2. Relevant facts----------------------------------  2

Statutes Involved----------------------------------------  6Argument:
The Government Is Entitled To Recover Its
Attorneys' Fees Where The Plaintiff Brought
A Title VII Action In Bad Faith.--------------------  8

Conclusion------------------------------------------------ 24

CITATIONS
Cases:

Alhermarle Paper Co. v. Moody, 422 U.S. 405 
(1975)---------------------------------- 12

Alyeska Pipeline Service Co. v. Wilderness 
Society, 421 U.S. 240 (1975)------------ •8,10

yram Concretanks v. Warren Concrete Products 
Company of New Jersey, 374 F. 2d 649 
(3d Cir. 1967)----------------------------- •14,15

Carrion v. Yeshiva University, 535 F. 2d 722
(2d Cir. 1976)------------ .----- -------------------21

Chandler v. Roudehush, 425 U.S. 846--------------- 17,23
ristiansburg Garment Co.
___, 98 s. ct. 694 (1978)

v. EEOC, U.S.
------ 11,13716,17,18,20,21,23

F.D. Rich Co., Inc. v. United States ex rel.
Industrial Lumber Co., Inc., 4l7 U.S. Il6(1974)---------------------------------------------- 8

Fleischmann Distilling Corp. v. Maier Brewing
Co., 386 u.s. 714 (1967)-----------------------------------------10

/*Grubbs v. Butz, 179 U.S. App. D.C. l8, 548 F. 2d
975 (1975)--------------------------------------------1 1 , 1 2 , 1 3 , 1 6 , 1 7

*/ Cases chiefly relied upon are marked by asterisks.

i



Cases--Continued: Page
Hall v. Cole, 4l2 U.S. 1 (1973)------------- 8,10,11

Isbrandsten Co. v. Johnson, 343 U.S. 779(1952)----------------------------------------- 9
Lee v. Chesapeake & Ohio Ry., 389 F. Supp.

84 (D. Md., 1975)-----------------------------21
Mills v. Electro-Auto-Lite Co., 395 U.S. 375

(I97O)---------------------------------------------------- 10,11

*Mount Sinai Hospital of Greater Miami, Inc.
/  v. Weinberger, 517 F. 2d 329 (5th Cir.,

1975)* certiorari denied, 425 U.S. \
935. (1976)------------------------------------------ 10,18,19

Newman v. Piggie Park Enterprises, Inc.,
390 u.s. 4oo (1968)-------------------------------------- 12

Northcross v. Memphis Board of Education,
412 U.S. 427 (1973)--------------------------- 12

Parker v. Califano, 182 U.S. App. D.C.
332, 561 F. 2d 320 (1976)--------------------- 19

Robinson v. KMOX-TV, 407 F. Supp. 1272
(E.D. Mo., 1975)-------------------------------21

St. Regis Paper Co. v. United States, 368
u.s. 208 (1961)--------------------------------------------- 9

Wyandotte Co. v. United States, 389 U.S.
191 (1967)-------------------------------10,18,19

Yablonski v. United Mine Workers of America,
150 u.s. App. d .c . 253, 466 F. 2d 424
(1972)---------------------------------------- 11

Statutes:
Civil Rights Act, Title VII of 1964, as
amended by the Equal Employment Act of 1972,
42 U.S.C. 2000e-l6:

42 U.S.C. 2000a-3(b)------------------------ 12
42 U.S.C. 2000e-5(f) (1)------------------ 14,17
42 U.S.C. 2000e-5(g)-------------------  21*42 U.S.C. 2000e-5(k)---- 1,2,6,9,11,13,14,16,17
42 U.S.C. 2000e-lo(a) (c)-------------------- 23
42 U.S.C. 2000e-l6(c)------------------- 3*7*17
42 U.S.C. 2000e-l6(d)------------------ 7*H*l6

ii



Statutes--Continued: Page
Civil Rights Attorney's Fee Awards Act

of 1976, 42 u.s.c. 1988-------------
Lanham Act, 15 U.S.C. 1117, §35-------
78 Stat. 259-60, 261------------------

Miscellaneous:
110 Cong. Rec. 6534 (1964)----------------
110 Cong. Rec. 12724 (1964)---------------
110 Cong. Rec. 13688----------------------
110 Cong. Rec. l42l4 (1964)---------------
118 Cong. Rec. 1847 (1972)-----------------
122 Cong. Rec. H12152----------------------
122 Cong. Rec. H12155---------------------
122 Cong. Rec. Sl6, 431 (Sept. 21, 1976)---
Dawson, "Lawyers and Involuntary Clients in 

Public Interest Litigation," 88 Harv. L. 
Rev. «49, 890-93 (March 1975)------------

3 J. Sutherland, Statutes and Statutory 
Construction, § 61.01, pp. 41-42---- ----

S. Rep. No. 92-681, 92d Cong., 2d Sess.
19 (1972)--------------------------------

18

10
16

-- 13
12,13
— 19
-- 13
---11
--18
— 18
— 18

---12

--- 9

— 11

iii



IN THE UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Nos. 77-2059 and 77-2060

BARBARA COPELAND,
Plaintiff-Appellant, 

v.
SAMUEL R. MARTINEZ,

Defendant-Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE APPELLEE

QUESTION PRESENTED
Whether the government may recover its attorney's fees 

where the plaintiff brought an action in bad faith under 
Title VII of the Civil Rights Act, 42 U.S.C. 2000e-5(k). — /

REFERENCES TO PARTIES AND RULINGS 
On August 23, 1977, the district court (Pratt, J.) filed 

its memorandum opinion and order setting forth the basis for

1/ This case has not previously been before this Court.



the entry of judgment in this action. The district court's 
opinion is reported at 435 F. Supp. 1178 (D. D.C., 1977) and 
is reproduced in the appendix (App, 13-20).

The appellant (plaintiff) is Barbara Copeland. The 
appellee (defendant) is Samuel Martinez, the Director and 
chief executive officer of the Community Services Administra­
tion .

STATEMENT OF THE CASE
1. Nature of the' Case

In this action under Title VII of the Civil Rights Act 
of 1964, as amended by the Equal Employment Act of 1972, 42 
U.S.C. 2000e-l6, plaintiff is appealing the district court's 
award of attorney's fees to the government. The district 
court made the award because the court found that plaintiff 
had "acted vexatiously, maliciously and in bad faith in bring­
ing the action." (App, 18). Plaintiff does not contest the 
district court's dismissal of her discrimination claim or the 
finding of bad faith, but contends that the attorney's fee 
provision of Title VII, 42 U.S.C. 2000e-5(k), bars the award 
of attorney's fees to a government defendant even where the 
plaintiff has acted in bad faith, (Appt. Br. at 5-6).

2. Relevant Facts
a. The plaintiff, Barbara Copeland, is a black woman 

employee of the Community Services Administration. Since 
July 1974 she has been employed as a Program Specialist (GS- 
11) in the office of Human Rights (OHR) of the CSA. Previously



she had worked for the CSA and its predecessor agency, the 
office of Equal Opportunity, as a Clerk Typist (GS-5 and GS- 
6), an Administrative Assistant (GS-7), and a Program Assis­
tant (GS-9). (App. 13-14). This last promotion, as well as 
the promotion to the job she presently holds, was the result 
of filing a grievance and complaint not involving racial or 
sex discrimination. (App. 14).

From April 1975 through December 1976, plaintiff's
supervisor was Carlos Ruiz, the Associate Director for Human
Rights at CSA. During that time, plaintiff unsuccessfully
filed nine grievances and EEO complaints against him. (App.
14). The complaint filed with CSA on June 27, 1975, is the

2/subject of this law suit. —  It alleged, inter alia, that 
plaintiff was denied career ladder promotions and merit pro­
motions, was denied the opportunity for training and the 
opportunity to perform at her full potential, and was harassed 
by her supervisors on the basis of race and sex. (App. 7).

After a trial (App, 2̂ -3), the district court found that 
plaintiff had "failed to establish even a prima facie case 
of discrimination based on sex and/or race or as to reprisal," 
and that the defendant had "amply demonstrated" the absence 
of discrimination. (App, 18), The court noted that at all

2/ The CSA rejected plaintiff's allegations by letter of 
November 18, 1975, and plaintiff appealed to the Civil Service 
Commission on December 1, 1975. Plaintiff filed this action 
on June 23., 1976, within 180 days from the filing of the 
appeal, 42 U.S.C. 2000e-l6(c) (.App, 8),

3



relevant times blacks comprised S0% of the staff of OHR, with 
women outnumbering men by a ratio of two to one j (App, 14); 
indeed, most of the promotions Mr. Ruiz authorized while head 
of OHR were of black women (App. 14). The court specifically 
found that plaintiff presented "no credible evidence" that 
she had been denied promotion as a result of discrimination. 
(App. 14-15). Rather, the evidence showed that the merit pro­
motions were denied because plaintiff was rated lowest on the 
qualified list and in each case a more qualified woman was 
selected (App. 15)j the career ladder promotion was denied 
because of an objective decision that the ladder for plain­
tiff’s position ended at GS-11 (App, 14-15), Similarly, the 
court found that there was no credible evidence to support 
plaintiff’s other allegations -—  e.g,, reprisal, harassment 
and the like. (App. 16-17). Accordingly, on August 23, 1977, 
the district court entered judgment for the government and 
dismissed plaintiff’s action with prejudice. (App. 12).

Plaintiff does not contest these findings on this appeal. 
(ApptBr... at 5) _  j

b. Finding that plaintiff had brought the action "in bad
faith, with an intent to harass her supervisors and generally
vex the defendant through her abusive conduct" (App. 18), the
district court awarded the government reasonable attorney’s

3/fees as part of its cost of litigation (App, 12). —

3/ The amount of these were later determined by the govern­
ment to be $3,193.40 (.App, 24),

4



Specifically, the court found that plaintiff's claim of dis 
crimination was completely without merit:

Plaintiff's testimony contained no evi­
dence of illegal discriminatory treatment 
other than her bald, abstract, and re­
petitive allegations of the same.

(App. 17). Both of plaintiff's witnesses "were shown to be 
intensely biased" against Mr. Ruiz; one admitted that he had 
designs on Mr. Ruiz's job (App, 17). The testimony of plain­
tiff and this witness,

their demeanor on the stand, and the 
documentary evidence submitted by both 
plaintiff and defendant demonstrated 
that both were completely incredible 
as witnesses.

(App. 17). Moreover, plaintiff had, throughout her career as 
a federal employee, used

grievances, threats of filing grievances, 
threats of EEO complaints, and the EEO 
process in general to harass her super­
visors and to improperly further her 
career and enhance her office status.

(App. 14), The evidence demonstrated conclusively that plain­
tiff and her witness

intentionally conducted a vendetta against 
Mr, Ruiz and other members of the CSA 
management, harassing them by virtually 
every means available including use of the 
EEO process to bring baseless charges of 
discrimination,

5



(App. 17-18). This particular lawsuit was "an integral part" 
of this vendetta, and the "culmination of a long series of 
intentionally vindictive and abusive actions taken to harass 
[plaintiff's] superior." (App. 18).

Noting that the legislative history of the attorney's 
fee provisions of Title VII is "completely silent" as to any 
congressional intent to prohibit fee awards to prevailing 
government defendants, and that there is no doubt that private 
Title VII defendants would be awarded fees in these circum­
stances, the district court awarded the government "reasonable 
attorneys' fees." (App. 19). The court expressly relied on 
the long-recognized common law rule —  "separate and apart from 
the statute" —  which permits the award of fees to the prevail­
ing party if the loser has acted in bad faith, (App. 19).

Plaintiff does not contest the district court's finding 
of bad faith, but appeals solely on the legal question of 
whether the attorney's fee provision of Title VII, 42 U.S.C. 
2000e-5(k), permits an award to a government defendant under 
any circumstances,

STATUTES INVOLVED
42 U.S.C. 2000e^5(k) provides as follows:

(k) In any action or proceeding under 
this subchapter the court, in its discre­
tion, 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.

6



(c) Within thirty days of receipt 
of notice of final action taken by a 
department, agency, or unit referred to 
in subsection (a) of this section,, or by 
the Civil Service Commission upon an 
appeal from a decision or order of such 
department, agency, or unit on a com­
plaint of discrimination based on race, 
color, religion, sex or national origin, 
brought pursuant to subsection (a) of 
this section, Executive Order 11478 or 
any succeeding Executive orders, or 
after one hundred and eighty days from 
the filing of the initial charge with 
the department, agency, or unit or with 
the Civil Service Commission on appeal 
from a decision or order of such depart­
ment, agency, or unit until such time as 
final action may be taken by a depart­
ment, agency, or unit, an employee or 
applicant for employment, if aggrieved
by the final disposition of his complaint, 
or by the failure to take final action on 
his complaint, may file a civil action as 
provided in section 2000e-5 of this title, 
in which civil action the head of the 
department, agency, or unit, as appropriate, 
shall be the defendant.

42 U.S.C. 2000e-l6(d) provides as follows:
(d) The provisions of section 

2000e-5 (f) through (k) of this title, 
as applicable, shall govern civil 
actions brought hereunder.

42 U.S.C. 2000e-l6(c) provides as follows:

- 7 -



ARGUMENT
THE GOVERNMENT IS ENTITLED TO RECOVER ITS 
ATTORNEYS' FEES WHERE THE PLAINTIFF BROUGHT 
A TITLE VII ACTION IN BAD FAITH.

The traditional "American rule" is that, absent a 
statute or enforceable contract, litigants in federal courts 
pay their own attorney's fees. See, _e.g., Alyeska Pipeline 
Service Co. v. Wilderness Society, 421 U.S. 240, 269 (1975)j 
F.D. Rich Co., Inc. v. United States ex rel. Industrial Lumber 
Co., Inc., 417 U.S. 116, 126-31 (1974); Hall v. Cole, 412 
U.S. 1 (1973). It has long been recognized, however, that 
courts may, in the exercise of their equitable powers, award 
attorney's fees to a prevailing party if the losing party 
has acted "vexatiously, wantonly, or in bad faith." F.D.
Rich, supra, 417 U.S. at 129. The underlying rationale for 
the award is essentially punitive and deterrent, Hall v. Cole, 
supra, 412 U.S, at 5: the availability of such a sanction is
necessary to prevent plaintiffs from harassing defendants and 
abusing the judicial process by bringing claims they know 
to be groundless.

In this case, the district court's finding of bad faith 
has overwhelming support in the record. The district court 
found, and plaintiff does not contest (Appt. Br. at 5-6), that 
plaintiff's charges of discrimination were utterly without 
foundation, that she and her chief witness had systematically 
misused the EEO complaint process as part of a "vendetta" 
against her superiors, and that the present lawsuit was the

- 8 -



culmination of a long series of abusive and harassing actions. 
App. l6-l8. There is no question that plaintiff intentionally 
and in bad faith abused the judicial process afforded by 
Title VII in order to secure her own advancement. App. l8. 
Thus, the Government is unquestionably entitled to an award 
of attorney's fees under long-settled common law principles.

As we now show, Congress' provision for attorney's fees 
in Title VII, 42 U.S.C. 2000e-5(k), in no way changes this 
result. In the absence of specific indications of 
Congressional intent to the contrary, the abrogation of the 
Government's common law rights of recovery will not be lightly 
presumed. There is not the slightest indication in the 
statute or its legislative history to indicate that Congress 
intended to circumscribe the court's equitable powers to 
punish a plaintiff who brings an action in bad faith. Indeed, 
42 U.S.C. 2000e-5(k) may itself be read to authorize an award 
to the Government in these circumstances. The award of 
attorney's fees to protect the integrity of the judicial 
process and deter its abuse is fully consistent with the 
policies of Title VII.

1. We note initially that there is a strong presumption 
against construing legislation in a way that abrogates common

4/law rights. Indeed, the Government's right to pursue common

4/ See, _e.g., Isbrandsten Co. v. Johnson, 343 U.S. 779> 
783 (1952); St. Regis Paper Co. v. United States, 368 U.S. 
208, 218 (19bl); see, generally, 3 J. Sutherland, Statutes 
and Statutory Construction, § 61.01, pp. 41-42.

- 9 -



law remedies has been upheld even in areas where Congress 
has enacted a comprehensive statute which appears to 
supplant the common law. See, _e.g., Wyandotte Co. v. United 
States, 389 U.S. I9I5 204 (1967); Mount Sinai Hospital of 
Greater Miami, Inc, v. Weinberger, 517 F. 2d 329j 337-3 
(5th Cir. 1975)5 certiorari denied, 425 U.S. 935 (1976).

Courts have been especially reluctant to disturb 
the well-established traditional exceptions to the "American 
rule" on attorneys fees. Hall v. Cole, supra, 4l2 U.S. at 
9-14 (involving the "common fund" exception); Mills v. 
Electro-Auto-Lite Co., 396 U.S. 375i 390-91 (1970) (common 
fund exception); Alyeska Pipeline, supra, 421 U.S. at 259-60. 
Thus, in the absence of a "meticulously detailed" statutory 
provision which is clearly intended to "mark the boundaries 
of the [courts'] power to award monetary relief," (Fleischmann 
Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 719.5 
721 (1967)5 preemption of the courts' traditional equitable

5/

5/ In Alyeska, the court struck down a judicially fashioned 
""private attorney general" exception, under which plaintiffs 
who vindicate important statutory rights were awarded fees 
on the theory that others would be encouraged to bring 
similar suits. Alyeska, supra, 421 U.S. at 269. The Court 
expressly continued to sanction the bad faith sanction, as 
well as the common fund exception (allowing plaintiffs who 
bring litigation benefiting others to receive fees from a 
common fund) not relevant here. Id. at 258-59, 257. The 
Court noted that, while Congress has the power to forbid 
fees under these exceptions as well, "Congress has not yet 
repudiated [them.]" Id. at 259-260.
6/ Fleischmann involved a suit for trademark infringement 
under § 35 of the Lanham Act, 15 U.S.C. 1117. The Court held 
that the statute precluded an attorney's fee award on equitable 
grounds because the statute extensively detailed the elements 
of the compensatory remedy -- _e.g., profits accruing to the 
defendant by virtue of his infringement, costs of the action, 
and treble damages. Fleischmann, supra, 386 U.S. at 719* 
Fleischmann has been narrowly construed. Hall v. Cole, supra, 
412 U.S. at 10.

10



powers to award fees will not be inferred. Hall v. Cole, 
supra at 4l2 U.S. 10; Mills v. Electro-Auto-Lite Co., supra,
396 U.S. at 391> Yablonski v. United Mine Workers of America,
150 U.S. App. D.C. 253, 466 F. 2d 424, 430 (1972). This 
presumption against abrogation of the common law should be a 
particularly strong one in the case of the "bad faith" exception 
to the American rule, because the purpose of that exception is 
not merely to do justice between the parties, but also to protect 
the integrity of the judicial system against abuse. See Hall 
v. Cole, supra, 4l2 U.S. at 9-14.

2. There is no indication anywhere in the attorney's 
fee provision of Title VII, 42 U.S.C. 2000e-5(k), that 
Congress in any way sought to circumscribe the courts' powers 
to award attorney's fees under the bad faith rule. Rather, as 
the Supreme Court has recently held in Christiansburg Garment
Co. v. EEOC, ___ U.S. ___, 98 S. Ct. 694 (1978), the language
of the statute and the legislative history demonstrate that 
Congress was so concerned with the problem of vexatious and 
harassing suits that it sought to go even farther than the bad 
faith rule in protecting Title VII defendants.

42 U.S.C. 2000e-5(k) was adopted by Congress as part1/of Title VII of the Civil Rights Act of 1964. As the Court

7/ In 1972, the Senate, as part of the Equal Employment 
Opportunity Act of 1972, adopted an amendment to 42 U.S.C. 
2000e-5 (k) that would have required that small businesses 
and unions that prevailed in Title VII actions brought by 
the Government be indemnified for their attorney's fees. 118 
Cong. Rec. 1847 (1972). But the amendment was deleted in 
conference. S. Rep. No. 92-681, 92d Cong., 2d Sess., at 19 
(1972): see Grubbs v. Butz, 548^F. 2d 973, 975, n. 1 3 .
Thus, 42 U.S.C. 2000e-5(k) was incorporated without change "as 
applicable," 42 U.S.C. 2000e-l6(d), by the 1972 amendments.

11



has recognized in Grubbs v. Butz, 179 U.S. App. D.C. l8,
548 F. 2d 973j 975 (1976), two distinct purposes for the
provision emerge from the 1964 Congressional debates.
First, Congress intended to "make it easier for a plaintiff
of limited means to bring a meritorious suit." 110 Cong.•
Rec. at 12724 (1964) (remarks of Senator Humphrey). The
choice reflects the importance Congress attached to private
enforcement of Title VII. As the Supreme Court has stated,
Congress intended that an individual with a meritorious
discrimination claim "bring . . .  an action . . . not for
himself alone but also as a ’private attorney general'":

Congress therefore enacted the provision 
for counsel fees —  not simply to penalize 
litigants who deliberately advance argu­
ments they know to be untenable but, more 
broadly, to encourage individuals injured 
by racial discrimination to seek judicial 
relief.

Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400,
401-402 (1968) (construing the identically worded attorney's8/
fee provision of-Title II). See, generally, Dawson, 
"Lawyers and Involuntary Clients in Public Interest Litiga­
tion," 88 Harv. L. Rev., 849, 890-93 (March 1975).

As Senator Humphrey's remarks make clear, however, 
Congress sought to make litigation easier only for the

8/ In Piggie Park, supra, 390 U.S. at 402, the Court 
concluded that the "prevailing party" language in Title II's 
attorney's fee provision (42 U.S.C. 20009--3('b)) must therefore 
be read to authorize awards to successful plaintiffs "unless 
special circumstances would render such an award unjust."
The same standard has been extended to Title VII cases. 
Albermarle Paper Co. v. Moody, 422 U.S. 405 (1975); see 
Northcross v. Memphis Board of Education, 4-12 U.S. 4277 428
( '1973T ---------- —  -------------------------------------------------------------

12



plaintiff with a "meritorious suit." 110 Cong. Rec. at 
12724 (emphasis supplied). Thus, 42 U.S.C. 2000e-5(k) 
serves a second purpose: by providing for an award to
the "prevailing party" (plaintiff or defendant), Congress 
intended to "deter the bringing of law suits without 
foundation." 110 Cong. Rec. 13688 (1964) (remarks of Sen. 
Lausche). See Grubbs v. Butz, supra, 548 F. 2d at 975* This 
reading is confirmed by the expressions of Congressional 
concern during the Senate floor discussions of the almost 
identical attorney's fee provision of Title II, with the 
need "to discourage frivolous suits," and "to diminish the 
likelihood of unjustified suits being brought." 110 Cong.
Rec. 14214 (1964) (remarks of Senator Pastore); 110 Cong. Rec. 
6534 (1964) (remarks of Senator Humphrey). Accordingly,
"while Congress wanted to clear the way for suits to be 
brought under the Act, it also wanted to protect defendants from 
burdensome litigation having no legal or factual basis." 
Christiansburg, supra, 98 S. Ct. at 700 (emphasis supplied).

In light of this legislative history, the Supreme Court 
has construed the "prevailing party" language of 42 U.S.C. 
2000e-5(k) as reflecting a Congressional intention to go 
beyond the narrow common law bad faith rule in protecting 
defendants:

. . .  a district court may in its dis­
cretion award attorney's fees to a 
prevailing defendant in a Title VII 
case upon a finding that the plaintiff's 
action was frivolous, unreasonable or 
without foundation, even though nof 
brought in subjective bad faith.

Id. (Emphasis supplied.) It is clear, however, that the Court

- 13 -



regarded the had faith rule as a separate and independent
basis of recovery:

needless to say, if a plaintiff is 
found to have brought or continued 
such a claim in bad faiths there will 
be an even stronger basis for charging 
him with the attorney's fees incurred 
by the defense.

98 S. Ct. at 701 (emphasis in original). Thus, 42 U.S.C. 
2000e-5(k) is intended to supplement rather than restrict
the courts' equitable power to make awards.

Moreover, in the context of rejecting the EEOC's 9/

argument that fee awards to defendants under Title VII were
limited to cases of bad faith, the Court noted that:

It seems clear, in short, that in 
enacting [42 U.S.C. 2000e-5(k)]
Congress did not intend to permit the 
award of attorney's fees to a prevail­
ing defendant only in a situation where 
the plaintiff was motivated by bad faith. 
As pointed out in Piggie Park, if that 
had been the intent of Congress, no 
statutory provision would have been 
necessary, for it has long been estab­
lished that even under the American 
common-law rule attorney's fees may
be awarded against a party who has
proceeded in bad fait.h.

98 S. Ct. at 699. (Emphasis supplied.) j Further:
Had Congress provided for attorneys' 
fee awards only to successful plaintiffs, 
an argument could have been made that 
congressional action had pre-empted the 
common-law rule,(and that, therefore, 
a successful defendant could not recover 
attorney's fees even against a plaintiff 
who had proceeded in bad faith. Cf.
Byram Coneretanks v. Warren Concrete

9/ The EEOC was the plaintiff in the original action, 
pursuant to its statutory obligation under 42 U.S.C. 
2000e-5(f)(1).

- 14 -



Product Company of New Jersey,, 37̂ - F. 2d 
649, 651 (3d Cir. 1967). But there is 
no indication whatever that the purpose 
of Congress in enacting [42 U.S.C. 2000e- 
5(k)] in the form it did was simply to 
foreclose such an argument.

98 S. Ct. at 699, n. 13 (emphasis supplied). Thus, the 
Court assumed, as given, that Congress' choice of the language 
"prevailing party," at the least, ruled out any implica­
tion that the courts' equitable powers to make awards to

10/
defendants had been preempted.

10/ See also Byram Coneretanks, supra, cited by the 
Supreme Court in Christiansburg. In Byram, the Third 
Circuit also indicated that "prevailing party" language 
in a statute cut against an inference of preemption.
While holding that the triple damages provision of the 
Clayton Act precluded an equitable award to the defendant, 
even though the suit had been brought in bad faith, the Court noted that:

Where it has been thought that the cost 
of instituting a lawsuit is not a sufficient 
deterrent against vexatious or oppressive 
litigation, Congress has enacted provisions 
allowing the courts in exceptional cases to 
award attorneys' fees and other extra­
ordinary costs to the prevailing party.

37^ F. 2d at 651. (Emphasis supplied.)



3. We recognize, of course, that Christiansburg
involved a private defendant, and that the Supreme Court
therefore did not construe the clause in 42 U.S.C. 2000e-5(k)
■which limits attorney's fees awards to a "prevailing party,
other than the Commission or the United States." This
Court has noted, however, the applicability of the ban on
attorney's fees to the Government as a defendant is "at least
uncertain." Grubbs v. Butz, supra at 548 F. 2d 976, n. 15.

In our view, the ban does not apply where the Government
is a defendant. At the time 42 U.S.C. 2000e-5(k) was adopted

11/in 1964, the United States could act only as a plaintiff.
The most logical reading of the ban on the award of attorney's 
fees to "the Commission or the United States" is as a reflec­
tion of Congress' commonsense judgment that, because the EEOC 
and the Attorney General have statutory obligations to enforce 
Title VII, they do not need the additional encouragement —  
given to private plaintiffs —  of an attorney's fee award.
See Grubbs v. Butz, supra. This reasoning is obviously
inapplicable to suits by federal employees, in which the United

12/
States appears only as the defendant. Indeed, the
11/ The 1984 Act permitted suits by aggrieved private sector 
employees following prior resort to the EEOC, and authorized 
the EEOC to bring a proceeding in the district court to en­
force any order issued in an action brought by the employee.
The Attorney General was authorized to intervene in any action 
brought by a private individual under the Act upon his certifica­
tion that the case was of general public importance. 78 Stat. 
259-60, 261.
12/ We note that when Congress amended Title VII in 1972 to 
cover federal employees, 42 U.S.C. 2000e-5(k) was among the 
procedural provisions of the 1964 Act extended to federal 
employment suits "as applicable." 42 U.S.C. 2000e-l6(d). 
(Emphasis suppliedT) The phrase "as applicable" reflects the

- 16 - (fn. continued on next page)



inapplicability of the statutory ban to the situation where 
the Government is a defendant is supported by the fact that 
when the Government is a defendant, neither the "United 
States" nor the Equal Employment Opportunity "Commission" is 
to be named as a party. Rather, "the head of the department, 
agency, or unit, as appropriate, shall be the defendant."
42 U.S.C. 2000e-l6(c). See Grubbs v. Butz, supra.

Thus, the statutory ban only applies to the Government 
when it is the plaintiff. It follows that the statute there­
fore expressly authorizes the Government to recover attorney's 
fees in this case, where it is the defendant and the plain­
tiff's suit is "frivolous, unreasonable and without foundation." 
Christiansburg, supra, 98 S. Ct. at 700.

However, this Court need not resolve whether 42 U.S.C. 
2000e-5(k) affirmatively authorizes the Government's recovery 
here, and we can accept this Court's conclusion that the 
statutory language is "at least uncertain." Grubbs v. Butz,

12/ (Continued):
fact that "certain provisions in [42 U.S.C. 2000e-5(f)-(k)] 
pertain to aspects'of the Title VII enforcement scheme that 
have no possible relevance to judicial proceedings involving 
federal employees." Chandler v. Roudebush, supra, 425 U.S. 
at 846. These aspects are those "detailing the enforcement 
responsibilities of the EEOC and the Attorney General" in the 
private sector. Id. at 847: in other words, those relating 
to the actions of T h e  United States as plaintiff. Since the 
restriction on attorney's fees in 42 U.S.C. 2000e-5(k) re­
lates to those enforcement actions, it does not appear to be 
"applicable" to suits in which the Government is the defendant.

- 17 -



supra, 548 F. 2d at 976, n. 15. What is clear is that there 
is no evidence that the ban on the recovery of attorney's 
fees hy "the Commission or the United States" was in any way 
intended to preempt the Government's common law right of 
recovery of its fees in suits brought by plaintiffs in bad 
faith. "[N]o statutory provision would have been necessary" 
for the Courts to have the inherent power to award attorney's 
fees in instances of bad faith, Christiansburg, supra, 98 

S. Ct. at 699, and consequently it is incumbent upon 
plaintiffs to demonstrate a clear Congressional intent to 
repeal the common law rule. See Mt. Sinai Hospital v. 
Weinberger, supra, 517 F. 2d at 338 (holding that the Govern­
ment's common law right of recoupment for wrongfully expended 
Medicare benefits was not preempted by the comprehensive system 
embodied by the Medicare Act). See also Wyandotte Transporta­
tion Co. v. United States, supra, 389 U.S. at 204. But the 
legislative history -- which plaintiff concedes is "sparse"
(Appt. Br. at 13) —  is totally'lacking in any indica­
tion that Congress considered the matter of bad faith suits

13/brought against the Government. Moreover, in light of

13/ Twelve years later, in 1976, Congress debated the Civil 
Rights Attorney's Fee Awards Act of 1976, 42 U.S.C. 1988. We 
recognize that statements made during that debate do discuss 
the prohibition on awards to the Government in that statute 
without indicating any qualifications. See 122 Cong. Rec. 
H12152 (remarks by Rep. McClory) (United States excluded from 
fee award "under any thesis or under any hypothesis that we 
might present with regard to this legislation"); 122 Cong.
Rec. H12155 (remarks of Rep. Drinan) ("the U.S. Government 
may not have attorney fees awarded"). (Appt. Br. at 17-19) We 
emphasize, however, that in passing the Attorney' Fee Awards \~ 
Act a principal concern of Congress was for private defendants 
in actions brought by the United States as plaintiff —  _e.g., 
a need to prevent harassment of defendants by the Internal 
Revenue Service. 122 Cong. Rec. Sl6, 431 (Sept. 21, 1976) 
(remarks by Sen. Allen). Thus, even if the Congressional

- l8 - (fn. continued on next page)



Congress' expressed general concern with the need to "deter
the bringing of lawsuits without foundation," 110 Cong.
Rec. 13688, an interpretation of the statute as a ban on the
recovery of attorney's fees by the Government in a bad faith
suit would create a "severe incongruity" in the applicationl V
of the statute, Mount Sinai Hospital v. Weinberger, supra, 
by making the Government, but not private employers, vulnerable 
to suits brought in bad faith. See also Wyandotte Transporta­
tion Co. v. United States, supra. 389 u.S. at 204 (Coneress could 
not have "intended to withhold from the Government a remedy that 
insures the full effectiveness" of the legislation.)

Absent an affirmative showing that Congress expressly 
considered the bad faith situation, then, the statutory language 
cannot be read as repealing the common law rule.

13/ (Continued):
debate in 1976 on the Attorney's Fee Awards Act is given some 
weight as a "secondarily authoritative expression of expert 
opinion," Parker v. Califano, l82 U.S. App. D.C. 332, 561 F.'j 2d 320 (1976) -- a dubious proposition given the 12 year 
gap in time here --it still does not provide any indication 
that Congress ever considered the problem of harassing suits 
brought against the Government.
lb/ "The recoupment right does not always fit consistently 
and logically into the statutory system, but the alternative 
of no right to recoup produces even more severe incongruities. 
Provisions apparently contrary to the government's right to 
recoup serve important functions that complement rather than 
replace or supersede the recoupment right. Mt. Sinai Hospital 
v. Weinberger, supra, 517 F. 2d at 338. (Emphasis supplied.)

- 19 -



40 Nor is there any conceivable reason why the poli­
cies of Title VII require that it be construed to insulate 
plaintiffs who bring suit in bad faith from the sanctions 
of paying attorney’s fees. The Supreme Court in Christians- 
burg held that a rule making plaintiffs liable for attorneys 
fees when a suit was found to be "frivolous, unreasonable or 
without foundation" would not unduly chill plaintiffs from 
bringing Title VII actions. Christiansburg, supra 98 S. Ct. 
at 700. Certainly, there is far less of a chill when the rule 
is simply that a plaintiff proceeding in actual bad faith is 
liable for such fees. There is simply no public interest in 
encouraging plaintiffs to bring suits in bad faith. To the 
contrary, as the existence of the common law rule itself 
attests, there is a strong public interest in an across the 
board rule discouraging litigation of any kind which is 
brought in bad faith.

The potential for abuse of the Title VII procedure is 
as apparent in the federal sector as it is in the private 
sector. Clearly, suits such as the present one--which 
seek to use the Title VII process as a weapon against 
superiors and rivals— work great disruption on the workings 
of the agency, erode morale and drain the energies of 
harassed superiors. Equally clearly, they prejudice those 
employees who are legitimately entitled to promotion and 
who have legitimate discrimination claims. For example:

20



Because the successful Title VII plaintiff is frequently 
awarded reinstatement and back pay (42 U.S.C. 2000e-5(g)), 
an agency which fills a disputed slot with another employee 
runs the risk of paying double salary for the same work, as 
well as a possible action by the employee who is eventually 
displaced. As a result, uncertainty about the outcome of 
litigation may force the agency to postpone an appointment 
or a job announcement indefinitely, rather than run these 
risks.

In fact, at least where bad faith litigation is in­
volved, no reason to distinguish between the Government 
and private defendants is apparent. Plaintiff purports to 
find such a distinction in the "imbalance of resources 
between the federal government and opposing parties of 
limited means." Appt. Br. at 16. But the economic disparity

JAObetween the Government and a private plaintiff is.■'more 
significant than that between a private plaintiff and a 
substantial corporate defendant. Since courts do not 
consider economic resources in determining to award fees 
to defendants in the private sector, see, _e.g., Carrion v. 
Yeshiva University, 535 F.2d 722, 727 (2d Cir. 1976); Robin­
son v. KMOX-TV, 407 P. Supp. 1272 (E.D. Mo., 1975); Lee v. 
Chesapeake & Ohio Ry«, 389 F. Supp. 84 (D. Md., 1975), there

i yis no reason to treat a federal defendant differently.

15/ In Christiansburg, supra, 98 S. Ct. at 701 n. 20, 
the Supreme Court expressly rejected the argument that 
prevailing defendants should receive awards (continued)

21



The case for awards to the Government is in one respect 
stronger: the taxpayers, rather than the corporation, 
bear the cost of the defense.

Indeed, the economic resources of the defendant are 
irrelevant to the policy defendant's awards is designed 
to serve. Defendant's awards are designed to affect the 
conduct of the plaintiff, not the defendant: the purpose 
of the award is not to reward the defendant for his success­
ful defense (as in the "private attorney general" policy 
underlying awards to prevailing plaintiffs), but to deter 
the plaintiff from bringing a meritless suit and to protect 
the judicial system from abuse. Clearly, there is no reason 
to shield the plaintiff simply because he sues a wealthy 
defendant, either corporation or Government.

Plaintiff suggests that, because individual federal 
employees are the only possible plaintiffs in discrimina­
tion actions against the Government, they deserve the

15/ (Continued) against the EEOC under a more liberal 
standard from that governing awards against private 
plaintiffs. The Court noted that "such awards must be paid from the Commission’s litigation budget, so that 
every attorney's fee assessment against the Commission 
will inevitably divert resources from the agency's 
enforcement of Title VII." By analogy, there should be 
no distinction between the Government as defendant and 
private defendants on the basis of economic resources.

22



additional encouragement of insulation against awards of 
attorney's fees in all circumstances., Appt. Br. at 21-23. 
The short answer to this argument is that the only plain­
tiffs who might be deterred by a potential fee award to the 
Government are those who bring frivolous and harassing
suitSc There is no conceivable reason for Congress to

16 /encourage these plaintiffs* See also Christiansburg,
supra 98 S. Ct. at 701.

In sum, there is no public interest in protecting 
plaintiffs who bring suits in bad faith. Under the 
traditional common law rule, plaintiff must pay her 
opponent's attorneys fees because of her abuse of the 
judicial process.

16/ We note, in addition, that while the federal employee 
is the sole plaintiff in Title VII actions against the 
Government, he has a benefit which private employees do 
not have: the availability of administrative procedures 
for the adjudication of his complaint (42 U.S.C. 2000e- 
1 6 (a)(c)), in addition to a trial de novo on the merits. 
See Chandler v. Roudebush, 425 U.S. 84'0, 843 (1976). The 
Court in Chandler noted that these administrative pro­
cedures might, in practice, be more effective than the 
de novo trial. Id. at 863-64. Thus, federal employees 
are in the same position as the private employee for all 
practical purposes. _Id. at 852-53  ̂ 860-6 1.

- 23 -



CONCLUSION
For the foregoing reasons, the judgment of the district 

court should be affirmed.
Respectfully submitted,,
BARBARA ALLEN BABCOCK,Assistant Attorney General,
EARL J. SILBERT,

United States Attorney,
ROBERT E. KOPP,
ALICE L. MATTICE, 

Attorneys,
Department of Justice, 
Civil Division"
Appellate Selrtion, 
Washington, D.C. 20530»
Phone: (202) 739-3259.

MAY 1978