Johnson v. United States Brief for Appellee
Public Court Documents
January 3, 1977
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Brief Collection, LDF Court Filings. Johnson v. United States Brief for Appellee, 1977. ef2a4008-b69a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/836dd26c-e694-48a9-aef5-4ffe187daaf2/johnson-v-united-states-brief-for-appellee. Accessed October 04, 2025.
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IN THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 76-2072
JAMES A. JOHNSON,
Appellee,
vs.
UNITED STATES OF AMERICA,
et al.,
Appellants.
On Appeal From The United States District Court
For The District Of Maryland
BRIEF FOR APPELLEE
JACK GREENBERG
CHARLES STEPHEN RALSTON
MELVYN R. LEVENTHAL BILL LANN LEE
Suite 2030
10 Columbus Circle
New York, New York 10019
KENNETH L. JOHNSON
Johnson & Smith, P.A.
711 St. Paul Street
Baltimore, Maryland 21202
Attorneys for Appellee
Page
Table of Contents .................................. i
Table of Authorities ............................... m
Statement of Issues Presented ..................... 1
Statement of the Case .............................. 2
A. Initial Administrative And Judicial
Proceedings ........................... 3
B. Administrative Proceedings .............. 6
C. Judicial Proceedings .................... 9
Statement of Facts .................................. 12
A. Initial Denial Of Promotion To
Supervisory Illustrator ................. 12
B. Continuing Denial Of Promotion ......... 15
C. Disparate Treatment Of Black
Employees Generally ..................... 17
Argument ,
Introduction .................................. 18
I. Title VII Permits Courts To Award
Federal Employees, As Prevailing
Parties, Recovery Of Attorney's
Fees In Administrative Proceedings
Which Are Part And Parcel Of The
Same Litigation As Judicial
Proceedings .............................. 25
A. 42 U.S.C. § 2000e-5 (k) Is Liberally
Applied In Order To Make Sure That
Title VII Works .................... 26
B. 42 U.S.C. § 2000e-5(k) Permits
Awards Of Attorney's Fees For
Non-Judicial Proceedings Incident
To Judicial Proceedings ............ 30
1. Statutory Language ............ 30
2. Congressional Intent And
Purpose ....................... 34
TABLE OF CONTENTS
-1-
Page
C. The District Court's Award Of
Attorney's Fees Was Appropriate
In This Case ....................... 38
II. Title VII Permits Courts To Award
Federal Employees, As Prevailing
Parties, Recovery Of Attorney's
Fees In Administrative Proceedings
Authorized By The Act ................... 41
A. Attorney's Fees Pursuant To
42 U.S.C. § 2000e-5(k) ............. 42
1. Statutory Language ............ 42
2. Legislative History ........... 54
3. Attorney's Fees Under 42 U.S.C.
§ 2000e-16(b) 64
1. Statutory Language ........... 64
2. Legislative History ........... 67
Conclusion ......................................... 70
TABLE OF AUTHORITIES
Page
Cases;
Alaniz v. California Processors, Inc., 13 FEP
Cases 738 (N.D. Cal. 1976) ....................... 32
Albemarle Paper Co. v. Moody, 422 U.S. 4Q5
(1975) .................................... 29,62,63,
65
Alexander v. Gardner-Denver Co., 415 U.S.
36 (1974) ............................... 33,40,43
Alyeska Pipeline Co. v. Wilderness Society,
421 U.S. 240 (1975) .................... 27,37,41,65
Aspira of New York, Inc. v. Board of Education
of the City of New York, 65 F.R.D. 541
(S.D.N.Y. 1975) ............................ 35,36,38
Barela v. United Nuclear Corp., 462 F.2d 149
(10th Cir. 1972), affirming, 317 F. Supp.
1217 (D.N.M. 1970) ........................... 46
Barrett v. U.S. Civil Service Commission, 69
F.R.D. 544 (D.D.C. 1975) ..................... 69
Batiste v. Fumco Construction Corp., 350 F. Supp.
10 (N.D. 111. 1972), reversed, 503 F.2d 447
(7th Cir. 1973)................................ 47
Blackmon v. McLucas, D.D.C. Cir. Art. No. 76-758
(decided December 6 , 1976) .................. 70
Blau v. Rayette-Faberge, Inc., 389 F.2d 469
(2d Cir. 1968) ............................... 37
Bowie v. Weinberger, D.D.C. No. 74-1801
(June 17, 1975) .............................. 30
Bradley v. Richmond School Board, 416 U.S.
969 (1974) ................................... 29,38
Brown v. Gaston County Dyeing Machine Co., 457
F.2d 1377 (4th Cir.) cert, denied, 409
U.S. 982 (1972) .............................. 36
Brown v. General Services Administration, __
U.S. __, 48 L.Ed.2d 402 (1976 ...... 3,6,11,19,26,33
-iii- 36,44,45,48,50,61
Caterpillar Tractor v. Grabier, 2 EPD 5 10,301
(S.D. 111. 1970).................................. 46
Chandler v. Roudebush, __ U.S. __, 48 L.Ed.2d
416 (1976) ....................... 6,19,23,25,33,45
48,54,59,61,65,66,67
Chemer v. Transitron Electric Corp.,
221 F. Supp. 55 (D. Mass. 1963) ................. 38
Coles v. Penny, 531 F.2d 609 (D.C. Cir.
1976) ............................................. 25
Copeland v. Brennan, 9 EPD 5 10,1127 (D.D.C.
1975) ............................................. 51
Culpepper v. Reynolds Metals Co., 421 F.2d
888 (5th Cir. 1971) .............................. 41
Day v. Weinberger, 530 F.2d 1083 (D.C. Cir. 1976) 25,31,52,70
Dottenheim v. Emerson Electric Mfg. Co.,
7 F.R.D. 195 (E.D.N.Y. 1947) .................... 37
Drew v. Liberty Mutual Ins. Co., 480 F.2d 69
(5th Cir. 1973) .................................. 30
EEOC v. Pacific Press Publishing Assn., 10
EPD 5 10,290 (N.D. Cal. 1975) .................... 33
EEOC v. Salvation Army, 3 EPD 5 8090
(N.D. Ga. 1970) .'................................. 46
Evans v. Sheraton Park Hotel, 503 F.2d 177
(D.C. Cir. 1974) ........................... 28,30,33
Evers v. Dwyer, 358 U.S. 202 (1958) ............. 36
FCC v. Turner, 514 F.2d 1354 (1975) ............. 49,53
Fitzgerald v. U.S. Civil Service Commission,
407 F. Supp. 380, 382 (D.D.C. 1975) ........ 49,64,65,
Fitzpatrick v. Bitzer, __ U.S. __ 49 L.Ed.2d
614 (1976) .................................... 28,53
Foster v. Boise-Cascade, Inc., 13 FEP Cases
578 (S.D. Tex. 1976) ........................... 33
Paae
Cases (cont'd)
-IV-
Cases (cont'd)
Page
Foster v. Civil Service Commission,
(S.D.N.Y. 72 Civ. 1902) (CHT) (July 28,
1976) ............................................ 32
Franks v. Bowman Transportation Co., __ U.S.
47 L.Ed.2d 444 (1976) ........................ 44,63,65,
66
Gilson v. Chock Full O'Nuts Corp., 331
F. 2d 107 (2d Cir. 1964) ........................ 38
Globus, Inc. v. Jaroff, 279 F. Supp. 807
(S.D.N.Y. 1968) .................................. 38
Grubbs v. Butz I, 514 F.2d 1323 (D.C. Cir. 1975)___ 6,25
Grubbs v. Butz II, 12 EPD 5 11,090 (D.C.
Cir. 1976) .......................... 28,29,34,44,59,60
Hackley v. Roudebush, 520 F.2d 108
(D.C. Cir. 1976) ................. 23,42,50,51,53,54
55,58,59,62,67,68
Hall v. Cole, 412 U.S. 1 (1973) .................. 65
Hammond v. Balzano, 10 EPD 5 10,333 (D.D.C. 1975)___ 31,40
Hays v. Livestock Commission Co. v. Maly Live
stock Commission, 498 F.2d 925 (10th Cir.
1974) 49
Incarcerated Men of Allen County Jail v. Fair,
507 F. 2d 281 (6th Cir. 1974) ................... 36,38
Johnson v. Georgia Highway Express, Inc.,
488 F. 2d 714 (5th Cir. 1974) ................... 28
Johnson v. Goodyear Tire & Rubber Co., 491
F. 2d 1364 (5th Cir. 1974) ...................... 44
Kahn v. Rosenstiel, 424 F.2d 161 (3d Cir.
1970), cert, denied, 398 U.S. 950 (1970)....... 38
Rogeir v. Ball, 497 F.2d 702 (4th Cir. 1974)....... 24,53
Kopet v. Esquire Realty Co., 523 F.2d 1005
(2d Cir. 1975) ................................. 36,37
-v-
Cases (cont' d)
Page
Lea v. Cone Mills Corp., 438 F.2d 86
(4th Cir. 1971) ............................ 28,30,36
Love v. Pullman Co., 404 U.S. 522 (1972)...... 44,47,49
McMullan v. Warner, 12 EPD 5 11,107
(D.D.C. 1976) ...................... 19,31,40,44,51
Malone v. North American Rockwell Corp.,
457 F. 2d 779 (9th Cir. 1972) ................... 29
Meeker v. Lehigh Valley Ry. Co., 236 U.S.
412 (1915) ...................................... 49,53
Mills v. Electric Auto-Lite Corp., 396 U.S.
375 (1970) ...................................... 38
Mills v. Lehigh Valley Ry., 238 U.S. 473 (1915).... 49
Morton v. Mancari, 417 U.S. 535 (1974).............. 19,67
NLRB v. Food Store Employees, 417 U.S. 1 (1974).... 65
Newman v. Piggie Park Enterprises, 390 U.S. 400
(1968) ................................. 26,27,29,35,36
40,41,42,43,47,60
Northcross v. Board of Education, 421
U.S. 427 (1973) ................................. 27
Oatis v. Crown Zellerbach Corp., 398 F.2d 496
(5th Cir. 1968) ................................. 33
Palmer v. Rogers, 10 EPD 5 10,49 (D.D.C. 1975)..... 33
Parham v. Southwestern Bell Telephone Co., 433
F.2d 421 (8th Cir. 1970) ........ 30,32,34,35
36,37,39,40,45
Parker v. Matthews, 411 F. Supp. 1059
(D.D.C. 1976) ......................... 20,25,30,31,32
36,37,40,42,45,
Parks v. Dunlap, 517 F.2d 785 (5th Cir.
1975) 24
-vi-
Page
Patterson v. American Tobacco Co., 9 EPD
5 10,039 (E.D. Va. 1975) ....................... 29
Pearson v. Western Electric Co., 12 EPD
5 11,223 (10th Cir. 1976) ...................... 49
Red School House, Inc. v. Office of Economic
Opportunity, 386 F. Supp. 1177 (D. Minn.
1974) ........................................... 48
Ray v. Gardner, 387 F.2d 161 (4th Cir. 1967) ..... 49
Robinson v. Gardner, 374 F.2d 949 (4th Cir.
1967) ............................................ 49
Reid v. Arlington Hotel Co., Inc., 476 F.2d
721 (8th Cir. 1973) 30
Richards v. Griffith Rubber Mills, 300 F.Supp.
338 (D. Ore. 1969) ...... ........... 35, 36, 38
Richardson v. Hampton, 373 F.Supp. 833
(D.D.C. 1974), affirmed ____ U.S. App.
D.C. ____ , 527 F .2d 853 (D.C. Cir. 1976) ....... 31
Rosenfeld v. Southern Pacific Co., 519
F .2d 527 (5th Cir. 1975) ....................... 38
Rutherford v. American Bank of Commerce,
11 EPD «[ 10,829 (D.N.M. 1976) .................. 46
Sanchez v. Standard Brands, Inc., 431 F.2d
455 (5th Cir. 1970) ............................ 49
Simmons v. Schlesinger, 4th Cir. No. 75-2182
(December 6, 1976), petition for rehearing
pending ............................... 3, 20, 33, 51, 48, 50,
51, 52, 61, 69,
Smith v. Kleindienst, 527 F.2d 853 (D.C. Cir.
1975) affirming, 8 FEP Cases 752 (D.D.C.
1974) ............................................ 22, 31, 40
Sperling v. United States, 515 F.2d 465
(3rd Cir. 1975) ................................. 23
Thomas v. Honeybrook Mines, Inc., 428 F.2d
981 (3d Cir. 1970) .............................. 35, 36, 37
TOOR v. HUD, 406 F. Supp. 1060 (N.D. Cal.
1974) ............................................ 38
Torres v. Sachs, 538 F.2d 10 (2d Cir. 1976) ..... 28, 35
Cases (cont'd)
-vii-
Page
United States Steel Corp. v. United States,
519 F .2d 359 (3rd Cir. 1975) ................... 29, 53, 60
Usery v. Local Union No. 639, (D.C. Cir.
No. 74-1851 (August 27, 1976) .................. 38
Van Hoomissen v. Xerox Corp., 503 F.2d
1131 (9th Cir. 1974) ............................ 53
Vermont Low Income Advocacy Council, Inc. v.
Usery, 2d Cir. No. 145 (December 9, 1976) .....
Walden v. Boorstin, D.D.C. Civ. Act.
No. 76-0797 (October 20, 1976) ................. 31, 40
Walker v. Ralston Purina Co., 409 F. Supp.
101 (M.D. Ga. 1976) 30
Wall v. Coleman, 393 F. Supp. 826 (S.D. Ga.
1975) 45
Williams v. Saxbe, 12 EPD fl 11,083 (D.D.C.
1976) ............................................ 31
Yablonski v. United Mine Workers, 466 F.2d
424 (D.C. Cir. 1972) 38
Constitutional and Statutory Provisions:
Fifth Amendment .................................... 4
Eleventh Amendment ................................. 28
Fourteenth Amendment ............................... 4, 28
5 U.S.C. § 7701 .................................... 65
5 U.S.C. § 8125 .................................... 48
18 U.S.C. § 205 .................................... 48
20 U.S.C. § 1617 ................................... 28
28 U.S.C. § 1291 ................................... 2
28 U.S.C. § 1920 ................................... 53
28 U.S.C. § 2412 ................................... 53
Cases (cont'd)
-viii-
Page
Constitutional and Statutory Provisions, Cont1d
29 U.S.C. § 160(c) .......... 65
29 U.S.C. $ 412 ............. 65
33 U.S.C. §§ 923(b), 924, 927 and 928 ... 48
42 U.S.C. § 406 ............. 49
42 U.S.C. § 551 et seq...... 48
42 U.S.C. § 1973 1(e) ...... 28, 34, 42, 53
42 U.S.C. § 1981 ............ 4. g
42 U.S.C. € 1983 ............ 4
Civil Rights Attorney's Fees .Awards Act
of 1976, Pub. L. 94-559 . 35, 36, 42, 53, 56, 59
42 U.S.C. § 2000e-3 (a) ..... 45, 46
42 U.S.C. § 2000a-3(b) ..... 19, 26, 43
42 U.S.C. §§ 2000e-5(b), (c), (e) ...... 47
42 U.S.C. § 2000e-5(f) ..... 5
42 U.S.C. § 2000e-5(f)- (k) .. 50, 55
42 U.S.C. § 2000e-5 (g) ..... 42, 44, 65
42 U.S.C. § 2000e-5(k) 2, 11, 21, 25, 26, 29, 30,
32, 41, 42, 43, 45, 49,
53, 54, 55, 56, 59, 69
42 U.S.C. § 2000e-8(a) ..... 46
42 U.S.C. § 2000e-8 (b) ..... 46
42 U.S.C. § 2000e-12 (a) .... 48
42 U.S.C. § 2000e-12(b) .... 46
42 U.S.C. § 2000e-16 ....... en passim
42 U.S.C. § 2000e-16 (b) 2, 11, 20, 21, 41, 47,
50, 64, 65, 66, 69
42 U.S.C. § 2000e-16 (c) ........ 20, 21, 26
42 U.S.C. § 2000e-16 (d) ........ 26, 45, 54
-lx-
Page
Constitutional and Statutory Provisions. Cont'd
42 U.S.C. § 6322 ................................... 48
47 U.S.C. § 236 .................................... 49
49 U.S.C. §§ 8 and 16 .............................. 49
Rules and Regulations;
Rule 801(d)(2), Fed. R. Evidence ................. .
Rule 803(8)(c), Fed. R. Evidence ..................
5 C.F.R. Part 713 ...................... 3, 6, 7, 33,
29 C.F.R. § 1601.5 _et seq...........................
45 C.F.R. § 1067.2-5 ...............................
31
23
51, 52, 53
49
48
Civilian Personnel Regulation 713.B-16
of the Department of the Army .... 6, 51, 52, 53
Other Authorities;
FPM Bulletin No. 713.41 (October 30, 1975) ....... 51
Hearings on S. 2515, S. 2617, H.R. 1746 Before the
Subcomm. On Labor of the Senate Comm, on
Labor and Public Welfare, 92d Cong., 1st
Sess...................... 68
H.R. Rep. No. 94-1558, 94th Cong. 2d Sess.,
H.R. Comm, on the Judiciary (1976) ............. 36, 53
In re Brown. U.S. Civil Service Commission
Appeals Review Board Decision
(November 8, 1974) .............................. 51
In re Jensen, U.S. Civil Service Commission
Appeals Review Board Decision
(July 14, 1976) ................................. 52
Letter from Acting Assistant Attorney General
Irving Jaffe to Senator Tunney, dated
May 6, 1975, reprinted in, 2 CCH
Employment Practices Guide, New Develop- ment ^ 5327 and BNA Daily Labor Report,
Current Developments Section for May 13,
1975 ...................................... 22
Page
Other Authorities, (Cont'd)
Memorandum To Heads of Departments And
Agencies From Attorney General
Edward H. Levi, dated November 20,
1975 ............................................. 48
Ralston, The Federal Government As Employer,
10 Ga. L. Rev. 717 (1976) ...................... 53
Sape & Hart, Title VII Reconsidered: The
Equal Employment Opportunity Act of
1972, 40 Geo. Wash. L. Rev. 824 (1972) ........ 54
H.R. Rep. No. 92-238, 92d Cong. 1st Sess.(1971) ... 48
Moore's Fed. Pract., Rules Pamphlet, Pt. 2 ....... 31
S. Rep. No. 72-415, 92d Cong. 1st Sess. (1971) .... 48
S. Rep. No. 92-681, 92d Cong. 2d Sess (1972) ..... 58
S. Rep. No. 94-295, on S. 1279, 94th Cong.,
1st Sess. (1975) ................................ 34, 42, 53
Subcomm. on Labor and Public Welfare,
Legislative History of the Equal Employment
Opportunity Act of 1972 (Comm. Print1971) ............................ 34, 48, 54, 55, 56, 57, 58,
60, 62, 63, 66, 67, 68
Sutherland, 2A Statutory Construction
§ 46.06 (4th ed. 1974) 44
U.S. Civil Service Commission, Discrimination
Complaints Examiners Handbook (April
1973) ............................................ 52
2 1975 U.S. Code Cong. & Admin. News,
94th Cong. 1st Sess.............................. 35
U.S. Commission on Civil Rights, The Federal
Civil Rights Enforcement Effort - 1974,
Vol. V, To Eliminate Employment Dis
crimination (July 1975) 53
IN THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NO. 76-2072
JAMES A. JOHNSON,
Appellee,
vs.
UNITED STATES OF AMERICA,
et al.,
Appellants.
On Appeal From The United States District court
For The District Of Maryland
BRIEF FOR APPELLEE
Statement Of Issue Presented
This civil action was brought by a black federal
employee against his employer agency for subjecting him
to racially discriminatory employment practices, pursuant
to § 717 of Title VII of the civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e-16. The issue presented is:
Whether the district court properly held that
a federal employee, as a prevailing party, is
entitled under Title VII to recover reasonable
attorney's fees and costs for legal repre
sentation in administrative portion of
administrative and judicial proceedings
authorized by Title VII?
_!/Statement Of The Case
"The controversy in suit has a lengthy history in [the
lower court] and before various federal administrative bod
ies" (A. 19). At the conclusion of the litigation, Mr. James
A. Johnson, a black civilian employee of the Department of
the Army at Fort Meade, Maryland, had successfully prosecuted
his claim of continuing employment discrimination extending
back to 1968, and obtained relief including retroactive pro
motion to a supervisory position, back pay, management
training and monitoring of management's employment practices
by the Army. The government's brief at 6 and 8-9 concedes
that Mr. Johnson is the "prevailing party" and that he can
recover for legal representation in judicial proceedings; the
only issue before the Court is whether the court below
properly exercised its discretion -under 42 U.S.C. §§ 2000e-5(k)
and 2000e-16(b) to award attorney's fees for legal represen
tation in the underlying administrative portion of adminis
trative and judicial proceedings. This Court has jurisdiction
pursuant to 28 U.S.C. § 1291 to hear the appeal of this
1 /Citations are to the Appendix, hereinafter "A."; the
Record on Appeal, Part 1 of 2, hereinafter "R."; and the
Supplement to Record on Appeal, part 2 of 2, hereinafter
"S.R.". The Record on Appeal, Part 1 of 2, includes a
record of administrative proceedings consisting, inter alia,
of an Administrative Case File, hereinafter "R.A.C.F.", and
a Transcript of Hearing and Standard of Findings, Analysis,
and Recommended Decision, hereinafter "R.T.H."
2
important question concerning effective enforcement of
Title VII by federal employees and the integrity of Title
VII's "complementary administrative and judicial enforce
ment mechanisms designed to eradicate federal employment
_ 2/discrimination."
A. Initial Administrative And Judicial Proceedings
On February 3, 1972, Mr. Johnson, a professional illus
trator GS-8 at the Training Aids Center, Fort Meade, Mary
land, filed an administrative charge of racial discrimination
with the Equal Employment Opportunity Office at Fort Meade
pursuant to U.S. Civil Service Commission regulations at
5 C.F.R. Part 713 (A. 20; R.A.C.F. Incl. 1, X.E). He
asserted, inter alia, that he had been subjected to a con
tinuing pattern of discrimination which had prevented him
from being promoted to the position of supervisory illustrator
since September 1968 when a white person was selected over
him and since December 1968 when the position was first left
unfilled; that management was diminishing his opportunity
for advancement by diverting work assigned to his section;
that "there has never been a Negro supervisor in the Training
Aids center"; that in the last ten years only white employees
had been permitted to attend training courses (including
supervisory courses); that in the last ten years "with one
exception, no Negro has received an incentive award" while
white employees have received many such awards; and that
2/ Brown v. General Services Administration, U.S. ,
48 L~ Ed. 2d 402, 4ll (1976); Simmons v. Schlesinger, 4th Cir. No. 75—2182 (decided December 5̂ 1976), petition for rehearing pending, slip opinion at 7-11. ------------
hands of the Training Aids Officer, Mr. William G. Gulley."
The EEO Office disregarded the continuing nature of the
denial of promotion and "general" allegations of discrim
ination and rejected the complaint as untimely filed (A. 20;
S.R. 36). The Board of Appeals and Review of the U.S. Civil
Service Commission affirmed June 2, 1972, (A. 20; S.R. 31-35);
the decision concluded, "civil Service Regulations provide
that decisions of the Board are final, and that there is no
further right of administrative appeal."
Accordingly, on July 5, 1972, Mr. Johnson filed a pro
se complaint to redress racially discriminatory policies and
practices at the Training Aids center pursuant to, inter
alia. Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq. to enforce rights guaranteed by
Title VII, 42 U.S.C. §§ 1981 and 1983 and the Fifth and
Fourteenth Amendments, D. Md. Civ. Act. No. 72-677-H
(A. 19, 34). The complaint sought as relief from defendants
"Negro employees have suffered personal harassment at the
_ v
3/ Mr. Johnson had filed an earlier charge August 31, 1970
after two years of informal administrative proceedings for
the denial of the September 1968 promotion (A. 20, R.A.C.F.
Incl. 1, X.E), but the complaint was rejected by the EEO
Office as untimely (A. 20, R.A.C.F. Incl. 1, X.V). Pursuant
to the EEO Officer's letter, Mr. Johnson requested recon
sideration of the decision because "this is a continuing
complaint and the racial aspect of my complaint should have
been resolved as the result of my frequent visits to your
office" since 1968 (R.A.C.F. Incl. 1, X.W) and other re
lated administrative proceedings (R.H.T. 13-14; R.A.C.F.,
Incl. II, X.A. and Incl. I, X. »6 X and T) . The EEO Officer
conceded that Mr. Johnson had raised the underlying problem
with him, but that he had not specifically raised racial
discrimination (R.A.C.F., Incl. 1 X.'s X, Y, Z, but see Incl. 3, X.X). See generally S.R. 33-34.
4
Secretary of the Army and civil Service Commissioners an
injunction, relief to make whole Mr. Johnson's "loss in
denial of promotion he suffered" and "his costs herein
including reasonable attorney and other additional relief
as may appear to the court equitable and just." Mr. John
son moved for appointment of counsel and waiver of costs
pursuant to 42 U.S.C. § 2000e-5(f) August 15th (S.R.
43). Defendants moved to dismiss (S.R. 44) and Mr. John
son, who had obtained counsel, opposed (S.R. 50). On
January 4, 1973, the district court denied the motion to
dismiss and ruled, inter alia, that there was Title VII
jurisdiction and that "the complaint is somewhat inartfully
drawn but I think a reading of the complaint in its en
tirety would indicate that the plaintiff was alleging a
continuing pattern of discrimination" (A. 45-46).
Thereafter, defendants requested the district court
"to order that the . . . case be remanded to the civil
Service Commission for a hearing and determination on the
merits of the plaintiff's allegations that he has been the
_4/victim of continuing racial discrimination" (A. 48).
Plaintiff opposed the remand because " [t]he Civil Service
Commission has had every opportunity to exercise its
authority and responsibility" and Title VII "clearly states
the plaintiff's right to file a civil action . . . within
4 /The government represented, inter alia, that "[i]f the
plaintiff remains unsatisfied after a determination on the
merits by the civil Service Commission, the Court and the
parties to this action may then proceed with the advantage
of a fully developed administrative record" (A. 49).
thirty (30) days of receipt of a notice of final action by
the Civil Service Commission" (A. 50). The lower court did
_5/order remand June 25, 1973 (A. 20-21, 52) with the pro
viso "[t]hat such remand is without prejudice to the right
of plaintiff to refile an action in this court if he is
denied relief by the United States Civil Service Commission"
(A. 53).
B. Administrative Proceedings
Pursuant to the lower court's order of remand, the
Civil Service Commission in turn remanded "Mr. Johnson's
allegations of discrimination to the Department of the Army
for a hearing and further processing under part 713 of the
Commission's Regulations" (A. 20-21; R.A.C.F. Incl. 1,
X.F). The complaint was investigated by the U. S. Army
Civilian Appellate Review Office pursuant to 5 C.F.R.
§ 713.216 and a report recommending a finding of discrim-
_£/ination was submitted April 17, 1974. On May 14, the Fort
5 / It is now clear that the remand for further administra
tive proceedings over plaintiff's objection was erroneous.See Chandler v. Roudebush. U.S.__, 48 Ed. 2d 416 (1976);
Brown v. General Services Administration, supra, 48 L. Ed.
za at 4il; Grubbs v. But'z I. b 14 ~FT.2cT'T3 23(T)TC. Cir. 1975).
6 / The investigator's report made the following recommenda
tions :
"A. That the complainant be informed in writing that
his allegation of discrimination in the matter
of denial of promotion because of his race (Black)
is substantiated.
"B. That the complainant be promoted to the position
of Supervisory Illustrator, GS-1020-09, in accor
dance with the provisions of Civilian Personnel
Regulation 713.B-16d. [hereinafter "CPD 713.B-16"]
6
Meade Post Commander rejected the finding of discrimination
_2/but approved limited relief (A. 21; R.A.C.F. at 4).
Exercising his right under 5 C.F.R. § 713.217, if dis
satisfied with the Commander's proposed disposition, Mr. John
son requested an administrative hearing May 28th. The hearing
was held July 10th and 11th; Mr. Johnson was represented by
an attorney, Mr. Kenneth L. Johnson, Esq., and agency man
agement represented by an attorney from the Office of the
Staff Judge Advocate and a technical advisor from the Civilian
personnel Office. Plaintiff testified and his counsel called
three witnesses and agency management counsel seven witnesses
on direct examination; there was vigorous interrogation of
management's witnesses on cross-examination. (The 459-page
transcript of the hearing and documentary exhibits are part
of the records, see R.H.T.). At the conclusion of the hear
ing, plaintiff's counsel summarized Mr. Johnson's case and
"C. That the complainant be accorded full opportunity
to acquire training in the knowledge, skills and
experience required for more responsible positions,
in keeping with the EEO Plan of Action Command
Objective relating to the situation wherein super
visory positions reflect an imbalance by race and
sex.
"D. That appropriate measures be taken to determine
the extent of culpability of managers, supervis
ors and program officials in the discriminatory
practices cited herein and corrective action be
initiated accordingly."
(A. 21: R.A.C.F. at 4-5).
7/ He rejected recommendations UA" and "B", approved rec
ommendation "C" with respect to training and experience as
is, and approved recommendation "D" with respect to action
against supervisors as modified by substituting the word
"managerial" for "discriminatory" (A. 21).
7
— l i t * \M .x :
_§/relief sought (R.H.T. at 447-458). The complaints
examiner submitted his report October 12th (A. 21, R.A.C.F.
at 1). The examiner found continuing racial discrimination.
"The preponderance of the evidence established past
practices as well as patterns of promotions, awards,
and training in the Training Aids Center which leads
the Examiner to find that the non-selection and/or
consideration of the complainant for the position of
Supervisor Illustrator, GS-1020-09 after the posi
tion was vacated by Mr. Allred on December 20, 1968,
was discriminatory because of his race. It is fur
ther found that but for his race the complainant
would have been promoted to the position of Super
visor Illustrator, GS-1020-09."
The examiner recommended (a) that [sjince discrimination was
a factor in the complaint's earlier non-selection for the
position, . . . the complainant [should] be promoted to the
position of Supervisor Illustrator . . . retroactive to
February 4, 1970;" (b) that Mr. Gulley, Director of the
Training Aids Center "be required to attend an appropriate
Department of Army or Civil Service Commission [EEO] course,
>
and (c) that "[t]he Post Commander, through the EEO Offices,
Ft. Meade should monitor personnel actions in the Training
Aids Center so as to assure that all employees are treated
equally as to promotions, awards and training" (R.A.C.F. at
17-18).
The Department of the Army approved the examiner's
report and recommendations November 15th (A. 22).
8/ Counsel recommended comprehensive relief, including that
"the Hearing Examiner should recommend [a] counsel free for
Mr. Johnson in this case, that he should not have to pay out
of his own pocket for a case of discrimination when somebody
else has violated the law" (R.H.T. 456).
8
Accordingly, on December 11, 1974, Mr. Johnson was offered
promotion to supervisory illustrator GS-9 and back pay
retroactive to September 8, 1968, notwithstanding that the
examiner recommended a promotion retroactive to February
1970 only. Mr. Johnson did accept the offer December 18th
(R., Letter dated 11 December 1974 from Fleming to Johnson).
The promotion, id., and payment of $5,364.53 in back pay
less tax and other withholdings, i.e., $3,406.33 (r . 37)
were made the next month. The lower court specifically
found that " [c]ertainly, the fact that plaintiff had already
filed suit in this Court and had been expressly authorized
to return here if dissatisfied with the administrative re
sults had a marked effect on the Army's acceptance of the
findings made by the Hearing Examiner" (A. 24-25).
C. Judicial Proceedings
On December 9, 1974, plaintiff filed this action (A.4) to
inter alia, redress deprivation of rights secured by Title
VII, 42 U.S.C. § 1981 and the Fifth Amendment when a white
employee was selected over Mr. Johnson for supervisory
illustrator September 1974, notwithstanding the complaint
examiner's report and the Army's approval of the findings
and recommended relief (A. 6-8), D. Md. Civ. Act. No.
H-74-1343. The complaint sought declaratory relief, in
junctive relief, punitive and exemplary damages, costs and
reasonable attorney's fees, and such other and further
relief required (A. 9). Defendants answered March 12th
(A. 11), and the record of administrative proceedings
9
subsequently was submitted by defendants (A. 22). On
August 11th, plaintiff moved for summary judgment because
there is no genuine issue as to any material fact and
plaintiff is entitled to judgment as a matter of law; de
fendants do not contest the administrative finding of
racial discrimination against plaintiff; and the motion is
based upon the entire record of administrative proceedings
before the court (A. 16). In light of the retroactive
promotion and back pay obtained by Mr. Johnson after the
filing of the complaint, the motion sought specifically
only to enjoin defendant from discriminating against
plaintiff, and to grant plaintiff costs and reasonable
attorney's fees. Attached to the motion was an affidavit
of Mr. Johnson's counsel of record that he had spent 72
hours working on the case (A. 18). Defendants opposed
the motion and filed a cross motion for summary judgment
April 8, 1976 (A. 2). The motion stated that "[t]he only
remaining issues concern the plaintiff's right to injunc
tive relief and the plaintiff's attorneys right to attor
neys' fees."
The cross motions were decided June 8, 1976 (A. 19).
The lower court ordered (a) "[t]hat judgment be and hereby
is entered in favor of plaintiff in the amount of $3500.00,
as an award of an attorney's fee to be paid to plaintiff's
attorney"; (b) " [t]hat judgment be and hereby is entered
in favor of defendants as to plaintiff's claim for a per-
_5/manent injunction; and (c) "[t]hat costs be awarded plaintiff
9/ "As a result of the various administrative proceedings and action taken by the Army pursuant thereby plaintiff has now gained evervthing he was seeking when he first asserted his claim against the Army" (A.22-23).
10
(A. 27). As to attorney's fees, the district court rejected
the government's contention that Mr. Johnson was barred
from recovering attorney's fees for legal representation
10/
in administrative proceedings on the ground that "the
administrative and judicial proceedings were part and par
cel of the same litigation for which an attorney's fee is
now sought."
"Moreover, the clear congressional intention
in enacting §717 in 1972 was to create an admin
istrative and judicial scheme for the redress of
federal employment discrimination. Brown v.
General Services Administration, supra, . . .
Sections 717 (b) and (c), 42 U.S.C. §2000e-16(b)
and (c), establish complementary administrative
and judicial enforcement mechanisms to achieve
the statutory purpose . . . It is therefore not
material whether the party seeking the award
prevailed at the administrative level or at the
judicial level. Both are a part of the same
enforcement mechanism established by the statute.
If he is represented by an attorney at either or
both levels, a successful claimant is entitled to
an attorney's fee to be awarded in the discretion
of the Court."
(A. 25) The lower court ruled that Mr. Johnson was the
"prevailing party" and that administrative proceedings for
which the fees are sought were "any action or proceeding"
pursuant to 42 U.S.C. §§2000e-5 (k), and 16(c) and (d). The
district court then stated, "[i]n exercising its discretion
under the statute, this court concludes that on the record
here an attorney's fee should be awarded to the plaintiff" — ^
10/ The lower court found that "[m]ost of the attorney's
time was spent at the administrative level, in particular
preparing for the participating in the two-day administra
tive hearing in July 1974 before the Hearing Examiner"
(A. 26-27).
11/ The lower court had previously denied the separate application for fees by Mr. Johnson's counsel in the initial judicial proceeding/ Mr. Dearmg, in September 1975 (A.33) . No appeal Was filed from that denial.
11
(A. 26).
On August 4, 1976, defendants filed notice of appeal
from the June 8th memorandum and order (A.29).
Statement of Facts
[The factual basis of the finding of racial discrimina
tion and the granting of substantive relief in the form of
retroactive promotion, back pay, management training and
EEO monitoring of Training Aids Center employment practices
is generally not in dispute.
A. Initial Denial of Promotion To Supervisory Illustrator
James A. Johnson has been continuously employed at the
• • 12/Training Aids Center as a professional illustrator in the
art division since August 1961 (R.A.C.F. at 2) and was the
first black civilian professional to be employed at the
Center (R.H.T. at 125). Beginning as a GS-5, he received
promotions to GS-8 by 1967. As a GS-8, Mr. Johnson was
the highest graded illustrator except for his supervisor
(R.H.T. at 13-14) and the highest graded black employee
(R.A.C.F. at 8). Mr. Johnson was assistant supervisor for
the art division from 1965-1968 (R.H.T. at 13, 117-118)
and was acting supervisor for 10 weeks during the super
visor's illness (R.H.T. at 117). Mr. Johnson's performance
12/ The Training Aids Center consists of four divisions -
art, reproduction, devices, and property and supply - that
produce art work for Department of the Army units at Fort
Meade. Each of the divisions normally has a supervisor
who reports to the civilian Director of the Center (R.A.C.F.
at 8).
12
of art and supervisory work impressed his supervisor as of
"high calibre" (R.H.T. at 117-118).
The art division supervisor transferred to another federal
agency June 1968, creating a vacancy in the Center's
supervisor illustrator position (R.A.C.F. at 5). The job
was posted for bidding by eligible persons and the Civil
ian Personnel Office determined that Mr. Johnson and a
white applicant, Mr. Arthur A. Allred, were the two best
qualified candidates (R.A.C.F. at 5-6). Mr. Johnson was
rated ahead of Mr. Allred by each of the three staffing
panelists who reviewed the applications (R.A.C.F. at 6 and
Incl. 1, X.T at 5)# and the former supervisor of the art
division was of the view that Mr. Johnson "certainly should
have" been selected for the job (R.A.C.F. at 121).
Mr. Johnson had complained June 1968 to the EEO offi
cer that the director of the Training Aids center,
Mr. William G. Gulley, would not allow a black man to head
the art division notwithstanding his qualifications, and
that a white employee had been preselected (r .H.T. at
11-13) . Mr. Gulley was then under investigation by the
Fort Meade management analyst division as the result of
complaints for several employees, including Mr. Johnson,
concerning "Personnel Turbulance In The Training Aids Cen
ter" (R.A.C.F. at 6 and Incl. 1, X.T). However, on
August 8, 1968, Mr. Gulley was permitted to select Mr. Allred
to head the art division, although the investigation was
incomplete. When Mr. Johnson found out about the selection
13
in September 1968, he tried to file an administrative charge
of discrimination, but the EEO officer refused to accept
the complaint or become involved (R.H.T. at 14-15). The
management analyst division report questioned the wisdom of
permitting Mr. Gulley to make the selection while he was
under investigation, and indicated that Mr. Johnson was
improperly skipped over (R.A.C.F. Incl. 1, x.T at 5-6).
The report found that Mr. Gulley had mismanaged the Train
ing Aids Center and recommended, inter alia, that his posi
tion be abolished and he be reassigned (R.A.C.F. Incl. 1,
X.T at 7-8), but no reforms actually were implemented other
than to reprimand Mr. Gulley (R.H.T. at 25S). Meanwhile,
in September 1968 Mr. Allred began work at the Center, but
was unable to perform even simple illustrator's tasks
(R.H.T. at 15-16, 66-67) and eventually resigned December 20,
1968 (R.A.C.F. at 6 ). Mr. Johnson was again the natural
choice for the position of supervisor illustrator, but
management chose to keep the position unfilled for the next
six years (R.A.C.F. at 6).
The complaints examiner conceived "the crux of this
complaint" as whether Mr. Johnson should have been promoted
after Mr. Allred's resignation (R.A.C.F. at 11) and there
fore recommended only a finding that "the non-selection and/
or consideration of the complainant for the position of
Supervisor Illustrator, GS-1020-09 after the position was
vacated by Mr. Allred on December 20, 1968, was discrimina
tory because of his race" (R.A.C.F. at 17). However, the
14
Department of the Army found that the earlier denial of
promotion was discriminatory and, accordingly, offered
Mr. Johnson the supervisor illustrator position retroactive
to and back pay extending to September 8, 1968, see supra
at 8-9.
B. Continuing Denial of Promotion
Management's explanation for failing to fill the super
visor illustrator position was that resignations left the
art division too small to require a supervisor and work
could be diverted elsewhere. The complaints examiner's
report, which the Army approved, found the explanation pre-
textual in light of testimony at the hearing.
First, the art division was the only division in which
vacancies were not filled as they arose by Mr. Gulley and
the Personnel Office (R.A.C.F. at 11-12; R.A.H.T. at 432-
433). The complaints examiner found that "[i]t does seem
unusual that from 1968 to date, the Art Division, in which
a black seeks promotion, has been the only division in the
TAC, without a supervisor or chief" (R.A.C.F. at 12).
Second, the art division's complement was inadequate largely
because management's policies and practices forced resigna
tions by black employees (and white employees such as the
art division's former supervisor who supported the aspira
tions of black employees). "It is noted that the transfer
of black employees from the Art Division to other government
agencies was one of the principal reasons why that division
15
- ^ . — .......... -.1. . , . ^ , . y __
had a high attrition rate" (R.A.C.F. at 11-12). Third, in
order to maintain its small size, work the art division
was unable to perform had to be diverted to other divisions
although such diversion resulted in incompetent work and
inefficiency (R.H.T. at 21-22). Fourth, work also had to
be transferred outside the center in order to be completed
(R.A.C.F. at 13). The art division was the only division
from which work was diverted outside (R.H.T. at 435-436) .
The conclusion of the complaints examiner was that
"an exhaustive review of all the evidence in the voluminous
complaint file and lengthy transcript of the hearing leads
the examiner to believe that the agency was less than candid
in its reason for transferring the work of the Art Division
to other areas including First Army." (R.A.C.F. at 13). ^
It is undisputed that plaintiff proved that "this transfer
of art work from his division was intentional and that this
was done to dilute the responsibilities of the Art Division
and thus deny him an opportunity for promotion to the
^ / "The reasons stated by the agency as to the transfer
of work do not appear to be valid. If the art work
could be diverted to First Army and other divisions
in the TAC it stands to reason that the work of
other sections could likewise have been diverted.
If the vacancies occurring in the Art Division could
not be filled why were the vacancies in the other
divisions filled? By not filling the vacancies in
the Art Division the Agency placed the Complainant in
a position which precluded his promotion. The Exam
iner is of the opinion that management of the TAC
and possibly a higher level command permitted the
situation in the TAC to the point whereby Blacks,
and more specifically the complainant, were being
discriminated against because of poor management
practices."
(R.A.C.F. at 15).
16
w ;.'.w— i & u . ---- --- -in-a>'. vl ,V X. •• __ V...-. .. :. . y r . . v - ' • • • : ••
Supervisor Illustrator position" (R.A.C.F. at 13).
C. Disparate Treatment Of Black Employees Generally
The statistical record is clear that black employees
of the Center were subjected to gross disparities in train
14/
ing, promotions and awards. The examiner went on to find
that ,"It is the agency's responsibility to implement an
affirmative action program and this it has failed to do as
regards the [center]. The agency has been well aware of
the imbalance in treatment of Blacks in [the Center] as
early as May 1968 when the problems of the center were
14_/ "In the second discrimination complaint filed Feb
ruary 3, 1972, the complainant made allegations
that Blacks receive disparate treatment as to
training, promotions and awards. The Investigator
developed this facet of the allegations thoroughly
and he obtained documentary evidence from the civ
ilian Personnel Office to back his conclusions that
there has existed an out of balance situation as to
how Blacks have been treated as regards to training,
promotions and awards. The evidence on which the
Investigator based his conclusions and recommenda
tions is contained in Exhibits I, j, N, and o of
Inclosure I of the complaint file. The Examiner
fully concurs in the conclusions of the Investiga
tor as regards to the disparate treatment of Blacks
as to training, promotions and awards. Evidence
from the cited exhibits reflect that the only
black employee receiving and completing a training
course during the period 1968 to 1973 was Ms.
Rebecca Snowden, GS-5, Supply Clerk in the Proper
ty and Supply Division; whereas eleven (11) white
employees participated in twelve (12) training
courses in the same period. Between 1968-1973
sixteen (16) white employees received twenty (20)
performance awards whereas only one black employee
received two awards (a Quality Slip Increase and
an Outstanding Performance Award). Between 1968-
1973 thirteen (13) white employees were promoted
whereas during the same period one black employee
received a promotion."
(R.A.C.F. at 8-9) .
- 17
brought to the attention of the Post commanding General"
(R.A.C.F. at 9). Thus, testimony at the administrative
hearing showed, inter alia, that management was ignorant
and insensitive to the equal employment opportunity pro
gram, no effort was made to hire and recruit black employees,
black illustrators left the Center because they believed
black employees were held back, white supervisors encoun
tered difficulties in trying to get black employees pro
moted, and on the job discriminatory behavior by white
employees toward black employees was tolerated (R.A.C.F, at
9-11, 14, 16-17). The Army accepted the hearing examiner's
finding of patterns of discrimination (R.A.C.F. at 17), and
the recommended relief of management training and "monitor
ing] personnel actions in the Training Aids Center so as
to assure that all employees are treated equally as to
promotions, awards and training" (R.A.C.F. at 18).
ARGUMENT
Introduction
This appeal concerns the practical enforcement of §717
of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. §2000e-16, by federal employees prosecuting claims
of employment discrimination in agency administrative pro
ceedings specifically authorized by the Act. Appellee
submits that the court below properly exercised its discre
tion under the statute in this case to award Mr. Johnson
attorney's fees for the cost of legal representation in
18
- ....._AiSi ;
administrative proceedings. The government, on appeal,
renews some of its objections which, if accepted, would
inflexibly bar any district court from even considering
the appropriateness of recovery for administrative legal
representation no matter what the particular facts or
circumstances. The larger issue is whether the adminis
trative-judicial enforcement mechanism created by Congress
W
in'1972 will in fact fulfill its purpose of eradicating
1 6 /"entrenched discrimination in the Federal Service".
This is because the government wishes to deprive employees
who prevail, like Mr. Johnson, of the opportunity to
recover fees, even though "at that stage a lawyer will
_1V
often [be a] practical necessity" and agency management
officials charged with discrimination, are provided with
lawyers paid by the agency, as was the case here.
The principal thrust of the government's brief is
that Title VII's administrative and judicial proceedings
are separate and distinct. The Supreme Court in Brown v.
General Services Administration, supra, as the district
court points out (A. 24-25), has completely undercut the
\-V Brown v. General Services Administration, supra,
48 L. Ed. 2d at 411.
16/ Morton v. Mancari. 417 U.S. 535, 547 (1974); Chandler v.
Roudebush. __U.S.__, __, 48 L. Ed. 2d 416, 420 (1976)
17/ McMullen v. Warner. 12 EPD 5II, 107 (D.D.C. 1976) at
p. 5124; see infra at ___ .
See supra at 7 and infra at 50-53.
19/ See, ec[., 6-7.
19
government's effort to distinguish § 2000e-16 administrative
and judicial proceedings as a basis for denying fees and
costs; the Court construed the statutory enforcement scheme
as "an administrative and judicial enforcement system"
(emphasis added) in which § 2000e-16(b) administrative pro
ceedings "complement" § 2000e-16(c) judicial proceedings
and provide overall "balance, completeness, and structural
integrity." As the Court put it;
"The balance, completeness, and structural
integrity of § 717 are inconsistent with the
petitioner's contention that the judicial remedy
afforded by § 717(c) was designed merely to
supplement other putative judicial relief. His
view fails, in our estimation, to accord due
weight to the fact that unlike these other sup
posed remedies, $ 717 does not contemplate
merely judicial relief. Rather it provides for
a careful blend of administrative and -judicial
enforcement powers." (emphasis added)
48 L. Ed. 2d at 411. See also Simmons v. Schlesinger,
supra, slip opinion at 7-11. Denial of attorney's fees
and costs for legal representation in the administrative
process is therefore wholly inconsistent with the § 2000e-16
statutory framework: "counsel's representation before both
the agency and this Court has been in furtherance of the
policies behind the Civil Rights Act," Parker v. Matthews,
411 F. Supp. 1059, 1066 (D.D.C. 1976).
Briefly summarized, appellees urge that the district
court decision granting Mr. Johnson attorney's fees for
legal representation in both administrative and judicial
proceedings should be affirmed for the following reasons;
- 20
20/
42 U.S.C. § 2000e-5(k) 21/ as made applicable by § 2000e-16(c)
and (d) , provides that fees may be awarded for administra
tive proceedings in the circumstances of this case where, as
the lower court found, "the administrative and judicial pro
ceedings were part and parcel of the same litigation for
which an attorney's fee is now sought" (A. 25). Such an
award is consistent with the language of (and liberal con
struction courts have applied to) § 2 000e-5(k) and similar
provisions, specific lower court precedent, and the intent
and purpose of Congress. In any event, an award of attorney's
fees, is appropriate in this case, first, because the
coverage of §2000e-5(k) with respect to "any action or
proceeding" includes administrative proceedings authorized
by Title VII and, second, because 42 U.S.C. §2000e-16(b)
authorizes agencies, and the courts if agencies fail, to
provide a complainant employee who prevails in administrative
proceedings "with full relief, including back pay, atto: 's
fees and reinstatement of employment" (emphasis added).
The government's reading of Title VII to always preclude any
recovery of fees simply has no basis or support in the Act,
or caselaw: their only purpose is to carve out a special
20/ 42 U.S.C. §2000e-5(k) is set forth in Appendix for Statutes
2V 42 U.S.C. §2000e-16 is set forth in Appendix for Statutes
22/ 42 U.S.C. §2000e-16(b) is set forth in Appendix for Statutes
23/ Simmons v. Schlesinger. supra, slip opinion at 11.
22/
- 21
-- . * * i K :■■•-. -r i O H a ^ r < ■> ■-
remedial dispensation for federal agencies and to discourage
the effective enforcement of Title VII rights in administra-24/
tive proceeding.
Initially, however, we note what the government does
not contend in order to put the appeal in some perspective.
First, the government states that "[i]n this appeal we do
not challenge the district court's determination that plain
tiff is a 'prevailing party,'" at p. 6. The court below
The case arises because the Justice Department has re
versed its prior policy of acquiescence to award of attorney's
fees and costs in administrative proceedings under Title VII.
The prior policy is set forth in Acting Assistant Attorney
General Irving Jaffe's response to a letter from Senator
Tunney, Chairman of the Subcommittee on Constitutional Rights,
dated May 6, 1975, reprinted in 2 CCH Employment Practices
Guide, New Development 55327 and excerpted in BNA Daily Labor
Report, Current Developments Section for May 13, 1975. Sen
ator Tunney had inquired about the government's "position in
opposing the award of attorney's fees on the theory that such
an award was not specifically provided for by the 1972 amend
ments to Title VII." Jaffe responded that:
"in response to your inquiry, I instituted a
staff review of this position and having carefully
considered and evaluated the results of that re
view, I have concluded that the position should be
abandoned. The United States Attorneys will there
fore be instructed not to assert that position in
any case properly brought under the 1972 amendments
and to withdraw the position from any such cases
now pending. We shall, of course, continue to ad
dress ourselves to appropriate issues relating to
the reasonableness of amounts so requested and to
the court's discretion in making an award." 2 CCH
Employment Practices Guide at p. 3611.
Consistent with this policy, the Justice Department did not
oppose entitlement to the award of attorney's fees and costs
for work in the administrative process in Smith v. Klein-
dienst, __U.S. App. D.C. , 527 F.2d 853 (D.C. Cir. 1975)
(unpublished opinion), affirming. 8 FEP Cases 752 (D. D.C.
1974). In Smith, the Justice Department unsuccessfully contested only the amount of attorney's fees.
- 22
held:
"In this particular case, plaintiff through
administrative proceedings was restored to the
position he sought retroactive to September 8,
1968 and was awarded full bach pay. Clearly he
is the "prevailing party" contemplated by the
statute. The fact that this court did not enter
a permanent injunction against possible future
discrimination by defendants hardly detracts
from the substantial victory won by plaintiff as
a result of his persistent efforts to vindicate
his rights."
(A. 25). The government's contention that Mr. Johnson was
not the "prevailing party" because he won only in adminis
trative proceedings was rejected? "[i]t is . . . not mater
ial whether the party seeking the award prevailed at the
administrative level or at the judicial level. Both are
part of the same enforcement mechanism established by the
statute" (A. 25). The lower court merely recognized that
administrative proceedings can serve significant functions25/
in any subsequent court action; the merits of Mr. Johnson'
charge and his entitlement to substantive relief were not
l£/ The Supreme Court was of the same view in Chandler v.
Roudebush, supra. 48 L. Ed. 2d at 432 n. 39:
"Prior administrative findings made with
respect to an employment discrimination claim
may, of course, be admitted as evidence at a
federal sector trial de_ novo. See Rule 803
(8) (c) of the Federal Rules of Evidence, cf.
Alexander v. Gardner Denver Co., supra, 415
U.S. at 60 n. 21. Moreover, it can be expected
that, in the light of prior administrative pro
ceedings, many potential issues can be eliminated
by stipulation or in the course of pretrial
proceedings m the District Court." (emphasis
added)
See Hackley v. Roudebush. 520 F.2d 108, 156-157 and 171
(Leventhal, j. concurring)? Sperling v. United States. 515
F.2d 465, 483-484 (3d cir. 1975); See also infra at 29-31.
- 23
in issue below precisely because of the formidable admin-
, 26/ istrative record ̂ which the government put in evidence).
Second, the government further concedes that because
Mr. Johnson is the prevailing party, " [h]e is accordingly
entitled to attorney's fees for court work," at 6. Third,
no question arises as to the district court's exercise of
discretion "that on the record here an attorney's fee should
be awarded" and that "the extensive record here adequately
supports this claim for a fee" (A. 2 6) ; only the threshold
question of statutory authority is here. Fourth, the worth
of the legal services is unquestioned (A. 27). The govern
ment's position on the question presented is thus narrow and 27/
technical.
26/ The government attempts to phrase its concession in
narrower terms: "[p]laintiff's original court case resulted
in his obtaining relief that he otherwise would not have
been able to obtain," at 9. The government argues that
while an employee generally cannot be considered a "pre
vailing party" if he succeeds at the administrative level,
the administrative finding in this case is "analytically
indistinguishable" from a judicial finding of discrimina
tion because of the initial lawsuit, see supra at 4-6.
Appellee respectfully differs as to the basis of the "pre
vailing party" ruling, see supra, but notes the obvious
erosion even this limited concession works on the govern
ment's principal position that administrative and judicial
proceedings are separate and distinct. The government does
essentially concede that Mr. Johnson is the "prevailing
party" for the entire litigation although his success was
achieved in the administrative forum.
27/ The government's present opposition to attorney's fees
in administrative proceedings is but one of many issues
defendant federal agencies have raised to limit the effec
tiveness of Title VII's administrative-judicial scheme.
Thus, the government has attempted to (a) deny the right to
sue in cases pending administratively or judically when
the Act became effective, see, e.g., Roger v. Ball. 497 F.2d
702 (4th Cir. 1974); (b) deny the right to seek a prelimin
ary injunction, see, e.g.. Parks v. Dunlop. 517 F.2d 785
24
—a*.* » — ~S— u * < , .. iO—krii. _ vi »-• •- -- . 1 -̂ LiriKL
I.
TITLE VII PERMITS COURTS TO AWARD FEDERAL
EMPLOYEES, AS PREVAILING PARTIES, RECOVERY
OF ATTORNEY'S FEES IN ADMINISTRATIVE PRO
CEEDINGS WHICH ARE PART AND PARCEL OF THE
SAME LITIGATION AS JUDICIAL PROCEEDINGS
Appellee demonstrates why, contrary to the government's
contention, awards of fees for legal representation in ad
ministrative proceedings per se are permitted in part II of
the argument. In this part, however, appellee discusses
the district court's narrower and independent ground of de
cision that "the administrative and judicial proceedings
were part and parcel of the same ligitation for which an
attorney's fee is now sought" under 42 U.S.C. § 2000e-5(k)
(A. 25), i.e.. administrative proceedings in this case were
an adjunct to judicial proceedings, similar to other inform
al resolution or settlement proceedings. In short, the
administrative proceedings cannot as a practical matter be
treated separately from judicial proceedings with which they
2£/
are inextricably tied, see supra at 2-12” The government
concedes as much when it admits that Mr. Johnson is "prevailing
(5th Cir. 1975); (c) require remand of property suits for
further agency proceedings, see, e.g., Grubbs v. Butz I, 514
F.2d 1323 (D.C. Cir. 1975); (d) deny notice of right to sue,
see, e.g.. Coles v. Penny. 531 F.2d 609 (D.C. Cir. 1976);
(e) limit judicial actions to a review of the administrative
record only, see, g.g.. Chandler v. Roudebush, supra,; (f)
deny application of Title VII substantive and remedial law,
see, e.g.. Day v. Weinberger. 530 F.2d 1083 (D.C. Cir. 1976).
2 8/ The lower court's reasoning to this effect relies on
and cites Parker v. Matthews, supra, 411 F.: Supp. at 1065-1066
(A. 26).
- 25
party" for the litigation as a whole and that he is
entitled to his award for the judicial phrase of proceed
ings even though his success was achieved in administrative
proceedings. see supra at 22-24. The technical per se
prohibition of fees for administrative proceedings which
the government proffers is simply a red herring, as well
as erroneous.
A. 42 U.S.C. S 2000e-5 HO Is Liberally Applied In Order
To Make Sure That Title VII Works____________________
42 U.S.C. § 2 000e-5(k) provides, in pertinent part,
that, "In any action or proceeding under this title the
court, in its discretion, may allow the prevailing party,
other than . . . the United States, a reasonable attorney's
fee as part of the costs, and . . . the United States shall
29/
be liable for costs the same as a private person." In
construing the terms of statutory authorizations of fees,
i
courts look first to the role an award would serve with
the specific enforcement scheme created by the Act. Thus,
in Newman v. Piggie Park Enterprises, 390^U.S. 400 (1968),
the Supreme Court, considering a narrower but otherwise
identical provision to § 2000e-5(k) contained in Title II
of the Civil Rights Act of 1964, 42 U.S.C. § 2000a-3 (b),
ruled that the preeminent purpose of the provision to en
courage "private attorney general" enforcement required a
29/ § 2000e-5(k) is made applicable to federal Title VII
cases by § 2000e-16(c) and (d), see Brown v. General
Services Administration, supra, 48 L. Ed. 2d at 411.
30/ See infra at 43
_3V
construction favoring -wide availability of attorney's fees.
The principle recently was affirmed in Alyeska Pipeline Co.
v. Wilderness Society, 421 U.S. 240, 263 (1975) that in
statutes such as Title II, "congress has opted to rely heavily
on private enforcement to implement public policy and to
allow counsel fees so as to encourage private litigation."
The same is true of Title VII provisions. The Fifth
Circuit, for instance, has declared, "This Court, as part
of its obligation 'to make sure that Title VII works,' has
liberally applied the attorney's fees provision of Title VII,
recognizing the importance of private enforcement of civil
3 V "When the civil Rights Act of 1964 was passed, it was
evident that enforcement would prove difficult and that the
Nation would have to rely in part upon private litigation as
a means of securing broad compliance with the law. A Title
II suit is thus private in form only . . . If he obtains an
injunction, he does so not for himself alone but also as a
"private attorney general," vindicating a policy that Con
gress considered of the highest priority. If successful
plaintiffs were routinely forced to bear their own attorn
ey's fees, few aggrieved parties would be in a position to
advance the public interest by invoking the injunctive
powers of the federal courts, congress therefore enacted
the provision for counsel fees— not simply to penalize liti
gants who deliberately advance arguments they know to be
untenable but, more broadly, to encourage individuals in
jured by racial discrimination to seek judicial relief under
Title II." 390 U.S. at 401-02 (emphasis added)
In Newman, the issue was the substantive standard for
determining when awards were warranted. The Court held that:
"It follows [from the purpose of encouraging private enforce
ment] that one who succeeds in obtaining an injunction under
that Title should ordinarily recover an attorney's fee unless
special circumstances would render such an award unjust,"
notwithstanding express statutory language that "the court,
in its discretion may allow the prevailing party" fees and
costs (emphasis added).
Compare Northcross v. Board of Education, 421 U.S. 427,
428 (1973) (construing similar provision in the Emergency
- 27
rights legislation." Johnson v. Georgia Highway Express,
32/
Inc., 488 F.2d 714, 716 (5th Cir. 1974) . This policy
is of particular significance in 42 U.S.C. § 2000e-16
federal employee actions. Federal employee Title VII
complainants are not merely private attorneys as are em
ployees in Title II and private sector Title VII cases,
they are the only attorneys general under the § 2000e-16
enforcement scheme. Suits by the Justice Department or
the Equal Employment Opportunity Commission (hereinafter
"EEOC") are not authorized; indeed, the Department of Jus
tice must defend such suits. The underlying principle is
that "in employment and public accommodations cases, and
other civil rights cases, congress depends heavily upon
private citizens to enforce the fundamental rights involved"
so "[f]ee awards are a necessary means of enabling private33 /
citizens to vindicate these Federal rights" whose avail-
. . 11/ability is to be liberally applied.
School Aid Act of 1972, 20 U.S.C. § 1617) ("The similarity
of language . . . is, of course, a strong indication that
the two statutes should be interpreted pari passu"); Torres v. Sachs. 538 F.21 10 (2d Cir. 1976) (construing similar
provision in the 1975 extension of the Voting Rights Act
of 1965, 42 U.S.C. § 1973-l(e)).
32/ Laa. V-. Cane Mills Corn., 438 F.2d 86, 88 (4th Cir. 1971); Ivans v. Sheraton Park Hotel. 503 F.2d 177, 189 (D.C. Cir.
i n n l c ^ ^ ' / E r r * 12 EPD 1 U -090' F * 2 d ______».
33/ S. Rep. No. 94-295, on S. 1279, 94th Cong. 1st Sess. 41-
43, reported in 1975 2 U.S. Code Cong. & Admin. News 808-09
and cited in Torres v. Sachs, supra, slip opinion at 4433 n.l.
34/ cf. Fitzpatrick v. Bitzer. __U.S.__, 49 L. Ed. 2d 614
(1976) (Title VII attorney's fees and back pay awards against
state government employees are a proper exercise of the Four
teenth Amendment and do not violate the Eleventh Amendment.
- 28
The principle of liberal application of civil rights
attorney's fees provision is now deeply entrenched. In
Newman v. Piqqie Park, the Court read the provision to
require that successful plaintiffs "should ordinarily re
cover an attorney's fee unless special circumstances would
render such an award unjust," notwithstanding express statutory
language apparently limiting awards "in [the court's] dis-
35/
cretion." The similar attorney's fees provision in the
Emergency School Act was given retroactive effect and applied to
interim awards in Bradley v. Richmond School Board, 416 U.S.
696 (1974). However, it is in the Title VII employment
discrimination area that courts have made clear that the
availability of attorney's fees extends to the full reach
of the statute. Thus, attorney's fees are available under
§ 2000e-5(k) in variety of circumstances in which there is
a practical basis for an award: proceedings other than36/
Title VII enforcement suits, to a "prevailing party"
37/
prior to the conclusion of the litigation, a "prevailing
party" who wins on the merits but is not himself entitled
35/ See Albemarle Paper Co. v. Moody. 422 U.S. 405, 415 0975) ----------------------------
36/ see e.g., united States Steel Corp. v. United States,
385 F. Supp. 346 (W.D. Penn. 1974), affirmed, 519 F.2d 359
(3d cir. 1975)
37/ see e.g., Malone v. North American Rockwell corp., 457
F.2d 779 (9th Cir. 1972); Patterson v. American Tobacco Co.,
9 EPD f10,039 (E.D. Va. 1975), but see Grubbs v. Butz II, 12
EPD H 11,090 (D.C. Cir. 1976).
- 29
to relief, a "prevailing party" who obtains relief39/
through settlement, and a "prevailing party" who pre
vails by virtue of the filing of an enforcement suit by 40/
the EEOC.
B. -42 U.S.C. S 2000e-5 HO Permits
Awards Of Attorney's Fees For Non-Judicial
Proceedings Incident To Judicial Proceedings
1. Statutory Language
The district court held, inter alia, that because
Mr. Johnson was the § 2000e-5(k) "prevailing party" for
the entire litigation he was entitled to recover commen
surate attorney's fees; '"this court will not make a dis
tinction between the time spent by plaintiff's attorney
on the administrative and judicial levels'" (A. 26,
citing, Parker v, Matthews, supra). As noted above, the
lower court recognized the significant role accorded ad
ministrative proceedings in the federal Title VII statutory
scheme, supra, at 23-24; Parker ruled generally with re
spect to "prevailing party" that "the operative factor is
success, not at which stage or how that success is
38/
38/ See e.g., Parham v. Southwestern Bell Telephone Co..
433 F.2d 421, 429-30 (8th Cir. 1970); Lea v. cone Mills
Corp., 438 F.2d 86, 88 (4th cir. 1971); Reed v. Arlington
Hotel Co., Inc.. 476 F.2d 721, 726 (8th Cir. 1973); Evans
v. Sheraton Park Hotel, supra.
39/ See e.g., Parker v. Matthews, supra; Bowie v. Weinber
ger, D.D.C. No. 74-1801 (June 17, 1975); Walker v. Ralston
Purina Co.. 409 F. Supp. 101 (M.D. Ga. 1976).
40/ See e.g., Drew v. Liberty Mutual Ins. Co., 480 F.2d
69, 76 (5th Cir. 1973).
- 30 -
. ... . ---- '■ - — ------- T T?--- J _
achieved . . .," 411 F. Supp. at 1063 . in Smith v.
Kleindienst, supra, the D.C. Circuit affirmed as not exces
sive an award of "[a]ttorney's fees and expenses of this
proceeding and of the administrative proceedings which
preceded it and which comprise the record in this action,"
8 FEP Cases at 753. The refusal of the court below and
Parker v. Matthews, supra, 411 F. Supp. at 1065, to "make
a distinction between the time spent during agency proceed
ings and the time spent in court" where, as here, plaintiff
was prevailing party as a result of both proceedings is also
the rule in lower court cases. See, e .g ., Hammond v .
Balzano, 10 EPD 510,333 (D.D.C. 1975); McMullen v. Warner,
supra, 12 EPD p. 5124 (D.D.C. 1976); Walden v. Boorstin.
D.D.C. Civ. Act. No. 76-0797 (October 20, 1976). In Walden,
in fact, Judge Gessell expressly held that: "while attorney's
fees for time spent handling an administrative hearing can
not be included, this does not bar the claim here. Counsel
have a responsibility to ascertain the administrative posi
tion of a controversy before bringing it to court and
41/
43/ The administrative finding of discrimination was in any
event dispositive, whether as an admission against interest,
see Rule 801(d)(2), Fed. R. Evid.; Advisory Committee Note
in Moore's Fed. Pract., Rules Pamphlet, Pt. 2 at 818-21 or the law
of the case, see Local. 1401 v. NLRB, 463 F.2d. 316,322 (D.C. Cir.1972
cf. Williams v. Saxbe, 12 EPD 511,083 (D.D.C. 1976). H3d
Mr. Johnson sought to embody relief achieved in a declara
tory of summary judgment, there is no reason it would have
been denied, see, e.g., Day v. Weinberger, 530 F.2d 1083 (D.C.
Cir. 1976); Richardson v. Hampton, 373 F. Supp. 833 (D.D.C.
1974), affirmed. 527 F.2d 853 (D.C. Cir. 1976).
31
limited reasonable administrative contacts prior to suit42/
will be recognized."
Moreover, the federal Title VII rule as to administra
tive proceedings is but a special application of the more
general rule as developed in successful informal resolution
or settlement of private sector Title VII actions. See
Parker v. Matthews, supra, 411 F. Supp. at 1066 and 1061-
1065. Thus, the Eighth circuit in Parham v. Southwestern
Bell Telephone Co., supra, 433 F.2d 429-30, awarded fees
under § 2000e-5(k) to a plaintiff who prevailed on the
merits because of defendant's voluntary compliance but did
43/
not obtain judicial injunctive relief. The Parham construction
that "the definition 'prevailing* must be based upon the
substantial results achieved, not upon the technical con
cept of obtaining a [judicial] judgment or winning a motion 44/
or verdict" has been widely followed, see cases cited supra
at 29-30; Parker v. Matthews, supra; Foster v. Civil Service
42/ Recovery of all of plaintiff Walden's non-excessive hours
of representation in administrative proceedings prior to suit
and subsequent settlement was permitted. Appellee disagrees
with Judge Gessell's conclusion as to the general unavail
ability of fees in administrative proceedings, see infra at
part II.
43/ "Although we find no injunction warranted here, we be
lieve Parham's lawsuit acted as a catalyst which prompted the
appellee to take action implementing its own fair employment
policies and seeking compliance with the requirements of
Title VII. In this sense, Parham performed a valuable public
service in bringing this action. Having prevailed in his
contentions of racial discrimination against blacks generally
prior to February, 1967, Parham is entitled to reasonable
attorney's fees, including services for this appeal, to be
allowed by the district court as authorized by 42. U.S.C.A.
§ 2000e-5(k)." (emphasis added)
44/ Alaniz v. California Processors, Inc., 13 FEP Cases 738,
742 (N.D. Cal. 1976).
- 32
Commission. S.D. N.Y. 72 Cir. 1902 (CHT) (July 28, 1976); Foster v.
Boise- Cascade, Inc.., 13 FEP Cases 578, 583-585 (S.D. Tex. 1976);
Palmer v. Rogers. 10 EPD 510,499 at p. 6130 (D.D.C. 1975);
EEOC v. Pacific Press Publishing Assn., 10 EPD 510,290
(N.D. Cal. 1975). Voluntary compliance, settlement and ad
ministrative proceedings are all comparable non-judicial
45/grievance remedy procedures contemplated by the Act. Even
a cursory review of applicable U.S. Civil Service Commission
regulations, 5 C.F.R. Part 713, indicates that the adminis
trative process is in form a regularized system designed
for informal resolution and settlement, see, e.g., 5 C.F.R.
§§ 713.213 ("Precomplaint Processing"), 713.217 ("The
agency shall provide an opportunity for adjustment of the
complaint on an informal basis after the complainant has
reviewed the investigative file"). That the parties are
required to participate in administrative proceedings
by the Act and that proceedings are structured, means
that awards of attorney's fees for legal work a, fortiori are
permitted under the Parham construction. It would be
ridiculous to permit Mr. Johnson an award for settling the
case in a totally informal fashion, but to deny him fees
for accomplishing the same in quasi-judicial administrative
45/ See Alexander v. Gardner-Denver Co.. 415 U.S. 3 6, 44
(1974); Brown v. General Services Administration, supra,
48 L. Ed.2d at 409-411; Simmons v. Schlesinger, supra, slip
opinion at 7-11; Chandler v. Roudebush, supra, 48 L. Ed.2d
at 432 n. 39; see also Evans v. Sheraton Park Hotel, supra,
503 F.2d at 183 ("The two-fold purpose of bringinga charge
before the EEOC is to give notice to the charged party and
to provide a means for voluntary compliance and concilia
tion, expeditiously and inexpensively"); oat is v. crown
Zellerbach Corp.. 398 F.2d 496, 497-498 (5th Cir. 1968).
33
y - J i f r - j i / ’ M -.J :- .'... .....^.1_ ■,.. .:.
proceedings.
2. Congressional Intent And Purpose
"Scant attention was focused on the attorney's fees
provision amid the sound and fury of the extended debates
46/
on the 1964 Civil Rights Act" and § 2000e-5(k) emerged
£ i/intact from the 1972 amendments. The Conference commit
tee report expressly states, "in any area where the new
law does not address itself, or in any area where a spe
cific contrary intention is not indicated, it was assumed
that the present case law as developed by the courts
would continue to govern the applicability and construc-
tion of Title VII" (emphasis added). The Parham gloss
of § 2000e-5(k) was thus incorporated.
The incorporation of the Parham construction of
§ 2000e-5(k) also is apparent from the legislative history
of statutes which have adopted the Title VII attorney's
fee provision and caselaw gloss. Thus, the Senate report
of § 402 of the 1975 extension of the Voting Rights Act
of 1965, 42 U.S.C. § 19731/e) provides, inter alia;
"It is intended that the standards for award
ing fees under Sections 402 and 403 be generally
the same as under the fee provisions of the 1964
Civil Rights Act. A party seeking to enforce the
46/ Grubbs v. Butz II. supra. 12 EPD at P. 5058.
47/ Legislative history relevant to general availability
of fees in administrative proceedings is discussed infra
at II B.
40/ Subcomm. on Labor and Public Welfare, Legislative His
tory of Equal Employment Opportunity Act of 1972 (Comm. Print 1971) at 1847/ hereinafter "Legislative History."
- 34
rights protected by the constitutional clause or
statute under which fees are authorized by those
sections, if successful, "should ordinarily re
cover an attorney's fee unless special circum
stances would make such an award unjust, Newman
v. Piggie Park Enterprises, Inc., . . .
* * *
"Moreover, for purposes of the award of counsel
fees, parties may be considered to have prevailed
when they vindicate rights through a consent
judgment or without formally obtaining relief.
Parham v. Southwestern Bell Telephone Co., . . .;
Richards v. Griffith Rubber Mills" 300 F. Supp.
338 (D. Ore. 1969); Thomas v. Honeybrook Mines,
Inc.. 428 F.2d 981 (3d Cir. 1970); Aspira of New
York, Inc., v. Board of Education of the City of
New York, 65 F.R.D. 541 (S.D.N.Y. 1975).
"In several hearings held over a period of
years, the Committee has found that fee awards
are essential if the constitutional requirements
and Federal statutes to which Sections 402 and
403 apply are to be fully enforced. "We find
* .■■ . that fee awards are an integral part of the
remedies necessary to obtain such compliance."
2 1975 U.S. Code Cong. & Admin. News, 94th Cong. 1st Sess. at
807-808; see Torres v. Sachs, supra, 533 F.2d at 12-13 n.2.>
The Senate report on the Civil Rights Attorney's Fees Awards
49̂Act of 1976, Pub. L. 94-559 (effective October 19, 1976)
49_/ "Be it enacted by the Senate and House of Representatives
of the United States of America in Congress assembled, That
this Act may be cited as 'The Civil Rights Attorneys' Fees
Awards Act of 1976'.
"SEC. 2. That the Revised Statutes section 722 (42 U.S.C.
1988) is amended by adding the following: 'In any action
or proceeding to enforce a provision of sections 1977, 1978,
1979, 1980 and 1981 of the Revised Statutes, title IX of
Public Law 92-318, or in any civil action or proceeding, by
or on behalf of the United States of America, to enforce, or
charging a violation of, a provision of the united States
Internal Revenue Code, or title VI of the civil Rights Act
of 1964, the court, in its discretion, may allow the prevail
ing party, other than the United States, a reasonable attor
ney's fee as part of the costs.'"
- 35
is, in relevant part, virtually identical . The House
report adds:
"The phrase 'prevailing party' is not intended
to be limited to the victor only after entry of a
final judgment following a full trial on the merits.
It would also include a litigant who succeeds even
if the case is concluded prior to a full evidentiary
hearing before a judge or juryl If the litigation
terminates by consent decree, for example, it would
be proper to award counsel fees. Incarcerated Men of
Allen County v. Fair, 507 F.~2d~281 (6th Cir. 1974) r
Parker v. Matthews. . . .; Aspira of New York, Inc.,
v. Board of Education of the City of New York. I I T
A..J.Pxe.yalilinCTl ...party should not be penalized for
seeking an out-of—court settlement, thus helping to
lessen docket congestion. Similarly, after a com
plaint is filed, a defendant might voluntarily cease
the unlawful practice. A court should still award
fees even though it might conclude, as a matter of
equity, that no formal relief, such as an injunction,
is needed. E.g.. Parham v. Southwestern Bell
Telephone Co.. . . .; Brown v. Gaston County "Dye
ing Machine Co.. 457 F.2d 1377 (4th Cir.); certT"
denied, 409 U.S. 982 (1972) : see also Lea v. cone
Mills Corp. . .; Evers v. Dwyer. 358 U.S. 202 (1958).
(emphasis added).
H. Rep. 94-1558, The Civil Rights Attorney's Fees Awards
Act of 1976, 94th Cong., 2d Sess. (1976) at 7. The express
approval of, inter alia, both Parham and Parker v. Matthews
12/
50/ "It is intended that the standards for awarding fees be
generally the same as under the fee provisions of the 1964
Civil Rights Act. A party seeking to enforce the rights pro
tected by the statutes covered by S. 2278, if successful,
'should ordinarily recover an attorney’s fee unless special
circumstances would render such an award u n j u s t ' N e w m a n v.
Piggie Park Enterprises. Inc.. . . . "
* * * *
"Moreover, for purposes of the award of counsel fees, parties
may be considered to have prevailed when they vindicate rights
through a consent judgment or without formally obtaining re
lief. Kopet v. Esquire Realty Co.. 523 F.2d 1005 (2d Cir.
1975), and cases cited therein; Parham v. Southwestern Bell
Telephone Co., . . . Richards v. Griffith Rubber Mills, T T .;
Thomas v. Honeybrook Mines, Inc., . . . Aspira of Newfork,
Inc., v. Board of Education of the City of New York,T". .
- 36
leaves no room for doubt as to how § 2000e-5 (k) and its
progeny are to be construed in light of the fact that "the
circumstances under which attorneys' fees are to be award
ed and the range of discretion of the courts in making
these awards are matters for Congress to determine,"
Alyeska Pipeline Service v. Wilderness Society, supra,
421 U.S. at 262. indeed. Congress has indicated that
Parham-Parker construction is to be construed with Kopet
v. Esquire Realty Co., supra. 523 F.2d at 1008-1009,
Thomas v. Honeybrook Mines. Inc., supra. 428 F.2d at 985,
ce:rt» denied. 401 U.S. 911 (1971), and other common bene
fit securities law actions in which "[t]here is no
question . . . that federal courts may award counsel fees
based on benefits resulting from litigation efforts even
where adjudication is never reached, e.g., after a settle- 51/
ment."
"In several hearings held over a period of years,
the Committee has found that fee awards are essential if
the Federal statutes to which S. 2278 applies are to be
fully enforced. We find that fee awards are an integral
part of the remedies necessary to obtain such compliance."
S. Rep. 94-1011, civil Rights Attorneys' Fees Award Act,
94th Cong., 2d Sess. (1976) at 4-5.
j>i/ Intervenor coalminers committee which had brought an
other action against the United Mineworkers which led the
United Mineworkers to bring the delinquency securities
action received fees and costs in the securities action in
Thomas v. Honeybrook Mines, Inc., supra. A stockholder
was awarded counsel fees where his attorney merely informed
the corporation by letter of insider transactions, demanded
that the corporation bring suit, and the corporation set
tled with officer-director without filing suit in Blau v.
Rayette-Faberge, Inc.. 389 F.2d 469 (2d cir. 1968), see also
Dottenheim v. Emerson Electric Mfg. Co. 7 F.R.D. 195 (E.D.
N.Y. 1947). A share-holder was awarded fees when his
- 37
The rule is that: "As all lawyers know, a lawsuit
does not always have to go to final adjudication on the
merits in order to be effective. Assuming the effective
ness in terms of practical results, the litigating stage
attained is relevant only to the amount of the fees to be
allowed, and not to the issue of whether they should be
awarded at all." Yablonski v. United Mine Workers, 466
F.2d 424, 431 (D.C. Cir. 1972).
C. The District Court's Award Of Attorney
Fees Was Appropriate In This Case_____
Mr. Johnson's initial action which resulted in remand
attorney merely wrote to the corporation concerning insider
short-swing profits and of an imminent limitation period,
the corporation advised the lawyer there were no violations,
the attorney drafted a complaint and the corporation then
successfully sued the insider in Gilson v. Chock Full O'Nuts
Corp., 331 F.2d 107 (2d Cir. 1964).
A flexible rule has been applied in cases under the
Emergency School Aid Act, 20 U.S.C. § 1617 in Aspira of New
York, Inc., v. Board of Education, supra, (settlement only);
in prisoner rights suits in Incarcerated Men of Allen cty.
Jail v. Fair, supra, (settlement only) xn cases under the
National Housing Act of 1949, 42 U.S.C. § 1441, et. seq. in
TOOR v. HUD, 406 F. Supp. 1060, 1064 (N.D. Cal. 1974)
(settlement only), see also Bradley v. Richmond School Board,
supra. 416 U.S. at 721-723 (interim relief generally).
A related instance in which a technical definition of
"prevailing party" has been eschewed are Title VII cases in
which attorney's fees and costs have been awarded although
courts have not found intentional discrimination in sex
discrimination suits where the employer acted in good faith
reliance on state regulation, see e.g.. Richards v. Griffith
Rubber Mills, supra. 300 F. Supp. at 341; Rosenfeld v.
Southern Pacific Co., 519 F.2d 527 (5th Cir. 1975).
See also Mills v. Electric Auto-Lite Corp., 396 U.S.
375, 393-394 (1970); Kahn v. Rosenstiel, 424 F.2d 161, 167
(3d cir. 1970), cert denied, 398 U.S. 950 (1970); Cherner v.
Transitron Electronic Corp., 221 F. Supp. 55 (D. Mass. 1963)
(Wyzanski, J.); Globus, Inc, v. Jaroff, 279 F. Supp. 807
(S.D.N.Y. 1968) ;~Usery v. Local Union~No. 639, D.C. Cir. No.74-1851 (August 2T, 1976 ) ; Vermont Low income Advocacy Council Inc.v Usery, 2d. cir. No. 145 (December 9, 1976), slip opinion at 880-881 and 885 n.g. (FOIA case).
for further agency proceedings "without prejudice to the
right of plaintiff to refile an action in this court if he
is denied relief by the United States Civil Service Commis
sion" (A. 53), see supra at 4-6, "acted as a catalyst which
prompted the appellee to take action implementing its own
fair employment policies and seeking compliance with the
requirements of Title VII," Parham v. Southwestern Bell
Telephone Co., supra, 433 F.2d at 429-430. As the hearing
examiner put it, " [t]he court's action has thus kept alive
the [administrative] complaint filed February 3, 1972"52/
(R.A.C.F. at 7). Moreover, the lower court did specific
ally find that "the fact that plaintiff had already filed
suit in this Court and had been expressly authorized to
return here if dissatisfied with the administrative results
had a marked effect on the Amy's acceptance of the find-
53/
ings made by the Hearing Examiner" (A. 24-25). The find
ing is not clearly erroneous and the government does not
dispute it.
There is no doubt that Mr. Johnson prevailed and ob
tained relief of promotion to supervisor illustrator and
52/ The lower court's remand order, the civil Service com-
mission' s remand to the Department of the Amy, and the
Department of the Amy's implementing letter are included
in the administrative record. (R.A.C.F. Incl. 1, X.F).
53/ Note that the Department of the A m y granted Mr. Johnson
relief retroactive to September 8, 1968 rather than to Feb
ruary 1970 only as the examiner proposed, no doubt with the
injunction as to returning to court in mind, and a scant two days
after the finding of the second and instant action, see
supra at 9.
- 39
back pay for himself; nor any doubt that he "prevailed in
his contentions of racial discrimination against blacks 54/
generally" and obtained relief in the form of management
training and monitoring of all Training Aids Center per
sonnel practices by the Department of the Army, see supra
at 8-9. The racially discriminating policies and practices
exposed by Mr. Johnson in administrative proceedings, see
supra at 12—18, demonstrate that Mr. Johnson obtained relief
"not for himself alone but also as a 'private attorney
general' vindicating a policy that Congress considered of
55/
the highest priority." unlike totally informal settlement
proceedings, the administrative record was put in evidence
56/
and was "the record in this action." Moreover, the govern
ment's concessions that Mr. Johnson is a §2000e-5(k) "prevailing
party," recovery of fees for the judicial portion of the
litigation, the discretionary propriety of an award and
the worth of the legal services rendered are fatal in light
of applicable law.
54/ parham v. Southwestern Bell Telephone Co., supra, 433
F.2d at 430. “ --------- — --
55/ Newman v. Piggie Park Enterprises, supra. 390 U.S. at
402; Alexander v. Gardner-Denver Co., supra. 415 U.S. at 47.
56/ See Smith v. Kleindienst; Parker v. Matthews; Hammond v.
Balzano; McMullen v. Warner; and Walden v. Boorstin, all
supra at 31.
- 40
II
TITLE VII PERMITS COURTS TO AWARD FEDERAL EMPLOYEES,
AS PREVAILING PARTIES, RECOVERY OF ATTORNEY'S FEES
IN ADMINISTRATIVE PROCEEDINGS AUTHORIZED BY THE ACT
42 U.S.C. § 2000e-5(k) provides that courts may award
attorney's fees "[i]n any action or proceeding under this
title." 42 U.S.C. § 2000e-16(b) provides, in pertinent
part, that, "the Civil Service Commission shall have autho
rity to enforce the provisions through appropriate remedies,
including reinstatement or hiring of employees with or
without back pay, as will effectuate the policies of this
section." Appellee submits that §§ 2000e-5(k) and 2000e-
16(b) are "specific and explicit provisions for the allow
ance of attorney's fees under [a] selected statute granting57/
or protecting . . . federal rights" which support the lower
court's award of attorney's fees for legal representation
in the administrative proceedings.
The government fails to understand that "the duty of
the courts [is] to make sure that the Act works, and the
intent of Congress is not hampered by a combination of a
strict construction of the statute and a battle with seman
tics." Culpepper v. Reynolds Metals Co., 421 F.2d 888, 891
(5th Cir. 1971). It is clear that Title VII attorney's
fees provisions must be liberally applied^’ see Newman v.
Piggie Park Enterprises, supra, and generally supra at
26-40. The government's contentions therefore fall athwart
\\ Mthe very purpose of private attorney general attorney's
57/ Alyeska pipeline Co. v. Wilderness Society, supra, 421
U.S. at 260 (1975).
- 41
fees that: "If the cost of private enforcement actions
becomes too great, there will be no private enforcement.
If our civil rights laws are not to become mere hollow pro
nouncements which the average citizen cannot enforce, we
must maintain the traditionally effective remedy of fee
58/shifting in these cases," S. Rep. No. 94-1011, supra at 6.
59/A. Attorney's Fees Pursuant To 42. U.S.C. S 2000e-5(k)
1. Statutory Language
In the context of the § 2000e-16 statutory enforcement
scheme, the scope or extent of §2000e-5 (k)'s-language^" any
action or proceeding pursuant to this title" clearly and plainly
encompasses agency administrative proceedings as well as judicial
actions. When § 2000e-5(k) was originally adopted in the
1964 civil Rights Act as part of the private sector Title
VII enforcement scheme of § 706, 42 U.S.C. § 2000e-5, the
_58/ Appellee respectfully submits that whatever force the
government's contentions have, they are vitiated by the ci
tation of the Newman v. Piggie park Enterprise, Inc., supra,
liberal construction standard in the legislative history of
the Voting Rights Act extension and the civil Rights Attor
ney's Fees Awards Act and the Attorney's Fee Awards Act House
report's express citation of Parker v. Matthews in which
Judge Richey expressly ruled that federal employees are en
titled to attorney's fees for legal representation in the
administrative process; the court need go no further, supra
at 26-40. However, we proceed to expose specific fallacies
in the government's contentions.
59/ on its face, § 2000e-5(k), as made applicable by § 2000e-16(c) and (d), . is_an express authorization for award of attorney's
fees, pursuant to which Mr. Johnson or other federal employ
ees who prevail in the administrative process can seek award
of attorney's fees wrongfully denied or other relief wrong
fully denied under § 2000e-5(g) on motions for or in the
nature of summary judgment, see, e.g.. Hackley v. Roudebush.
supra, 520 F.2d at 156-59<bay v. Weinberger, 530 F.2d 1083
(D.C. Cir. 1976).
- 42
same language of broad scope was present. The § 2000e-5
enforcement scheme relied upon both administrative and
judicial proceedings, as the Supreme court noted in Alexan-
60/
der v. Gardner-Denver. supra, 415 U.S. at 47. In contrast,
the contemporaneous attorney's fees provision in § 204(b)
of Title II of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000a-3 (b) is limited in scope to "any action commenced
pursuant to this title." (emphasis added) § 2000a-3(b) is
otherwise identical to § 2 000e-5(k). While Title VII's
enforcement scheme is both administrative and judicial,
Title II*s enforcement scheme is strictly judicial, see
Newman v. Piqqie Park, supra. The specific use of the
broadly inclusive phrase "action or proceeding" in § 2000e-
5(k) in the context of the private sector Title VII enforce
ment scheme indicates a deliberate decision by Congress to
make administrative proceedings subject to attorney's fees
and costs awards. As the district court put it: "Had
Congress wished to restrict an award of an attorney's fee to
only suits filed in court, there would have been no need to
add the words 'or proceeding' to 'any action'. But 'proceed
ing' is a broader term than 'action' and would include an
££/ " [L]egislative enactments in this area have long evinced
a general intent to accord parallel or overlapping remedies
against discrimination, in the civil Rights Act of 1964,
42 U.S.C. §§ 2000a et seq.. Congress indicated that it con
sidered the policy against discrimination to be of the 'high
est priority' . . . Consistent with this view, Title VII
provides for consideration of employment-discrimination
claims in several forums. See 42 U.S.C. § 2000e-5(b) (1970
ed. Supp. II) (EEOC); 42 U.S.C. § 2000e-5(c) (1970 ed. Supp.
II) (State and Local agencies); 42 U.S.C. § 2000e-5(f) (1970
ed. Supp. II) (federal courts)."
- 43
administrative as well as judicial proceeding" (A. 25).
It is an elementary canon of statutory instruction that
61/
"effect must be given, if possible, to every word, clause and
62/
sentence of a statute." This is especially the case in
63/
Title VII, a remedial statute. That the federal Title VII
enforcement scheme under Brown v. General Services Adminis
tration, supra. is the sole and exclusive remedy for employ
ment discrimination is even more reason to treat "proceeding"
as meaningful. The Supreme Court has already held that the
substantive scope of Title VII's remedial provision was meant
to be broad even where there are colorable claims of limita-
64/
tion, entirely absent here. The "'curious, narrow, hidden
sense'" that the government urges should be given the phrase
"any action or proceeding", in which "or proceeding" would be
entirely redundant or meaningless, is to be eschewed just as
61/ "The government argues that the phrase 'any action or
proceeding' does not include administrative proceedings. But
the words themselves certainly do not suggest that congress
intended such a distinction," McMullen v. Warner, supra, 12
EPD at p. 5124.
62/ Sutherland, 2A Statutory Construction § 46.06 (4th ed.
1974) at p. 63. compare D.C. Circuit's analysis of the Con
gressional decision to use "prevailing party" instead of
"plaintiffs" or "any party" in Grubbs v. Butz II, supra, 12 EPD at pp.5058-5059.
63/ "Title VII is strong medicine and we refuse to vitiate
Its potency by glossing it with judicial limitations unwar
ranted by the strong remedial spirit of the act," Johnson v.
Goodyear Tire & Rubber Co.. 491 F.2d 1364, 1377 (5th Cir.
1974)? see Love v. Pullman Co.. 404 U.S. 522 (1972).
64/ Franks v. Bowman Transportation Co., __U.S. __, 47 L.Ed.
2d 444, 457-462 (1976) (seniority relief pursuant to § 2000e-
5(g) may be awarded notwithstanding § 2000e-2 (h) and failure
to specify such relief in § 2000e-5(g)).
- 44
a similarly awkward and oblique construction of "as applic
able" in § 2000e-16(d) was in Chandler v. Roudebush, supra,
48 L. Ed.2d at 423-424. Rather the '"plain, obvious and
rational meaning'" of the phrase consistent with the admin
istrative-judicial Title VII enforcement scheme, see Brown
65/
v. General Services Administration, supra, is called for.
Clearly, the term "proceeding" does not refer exclusively
to judicial proceedings in the Title VII statutory scheme,
i.e., congress did "not make a distinction between the time
spent by plaintiff's attorney on the administrative and
judicial levels," Parker v. Matthews, supra, 411 F. Supp. at
66/
1066. First, § 704, 42 U.S.C. § 2000e-3(a), proscribes
as "an unlawful employment practice" discrimination against
an employee, inter alia, "because he has made a charge,
testified, assisted, or participated in any manner in an in
vestigation, proceeding, or hearing under this title"
(emphasis added). Statutory language, legislative history,
agency construction and caselaw, all indicate that "proceeding,"
like the preceding term "investigation" and following term
65/ Were there doubt about the scope of "proceeding," "Title
VII . . . is to be accorded a liberal construction in order
to carry out the purpose of congress to eliminate the incon
venience, unfairness and humiliation of racial discrimina
tion, " Parham v. Southwestern Bell Telephone Co., supra, 433
F.2d at 425; Wall v. Coleman, 393 F. Supp. 826 (S.D. Ga. 1975);
see generally supra at 26-40.
66/ see generally supra at 26-40 with respect to liberal ap
plication of § 2000e-5(k) and similarly worded provisions.
"hearing," refers to EEOC proceedings. Congress settled
the meaning of "proceeding" in 1972 when § 2000e-3(a) was
amended, as the Conference section-by-section analysis
described it, "to make clear that joint labor-management
apprenticeship committees are covered by those provisions
which relate to . . . retaliation against individuals par-
68/
ticipating in Commission proceedings" (emphasis added)
Second, § 709(a), 42 U.S.C. § 2000e-8(a) provides that in
connection with any investigation of charges, the EEOC shall
have access to, inter alia, "any evidence of any person
being investigated or proceeded against that relates to
unlawful employment practices" (emphasis added); see also
§ 709(b), 42 U.S.C. § 2000e-8(b), as amended ("the Commission
shall refrain from processing a charge") (emphasis added).
Third, § 716(b), 42 U.S.C. § 2000e-12 (b) provides that " [i] n
any action or proceeding based on any alleged unlawful em
ployment practice," no person shall be subject to liability
or punishment under certain good faith defenses and that
"[s]uch a defense, if established, shall be a bar to the
action or proceeding11 (emphasis added). Nothing precludes
§ 716(b)'s application to EEOC or state deferral agency
69/
proceedings. Fourth. § 706(b), (d) and (e), 42 U.S.C.
67/Rutherford v. American Bank of Commerce, 11 EPD 510,829 at
p.7488-7489 (D.N.M. 1976), see also EEOC v. Salvation Army, 3
EPD 58090 (N.D.Ga. 1970); Barela v. united Nuclear Corp., 462
F.2d 149 (10th Cir. 1972), affirming 317 F. Supp. 1217 (D.N.M.
1970).
68/ Legislative History at 1849.
68/ cf. caterpillar Tractor v. Grabier, 2 EPD f10,301 (S.D.
111. 1970T
- 46
§ 2000e-5(b), (d) and (e), in the 1964 version of the Act and
§ 706(b), (c) and (e), and § 709(d), 42 U.S.C. § 2000e-5(b),
(c), (e) and 8 (d), as amended in 1972, refer to state or local
deferral proceedings as, inter alia, "proceedings," "state or
local proceedings," or "procedure[s]." There simply is no
question that such proceedings include administrative pro- 70/
ceedings. Fifth, although § 717(b), 42 U.S.C. § 2000e-16(b),
does not refer to federal agency or U.S. civil Service Com
mission proceedings except as included in "equal opportunity
plan[s]," "affirmative program of equal employment opportunity"
70/ See, e.g., Love v. Pullman Co., supra; Voutsis v. Union
Carbide Corp.. 321 F. Supp. 830 (S.D. N.Y. 1970), reversed.
452 F.2d 889 (2d cir. 1971); Batiste v. Furnco Construction
Corp.. 350 F. Supp. 10 (N.D. 111. 1972), reversed. 503 F.2d
447 (7th Cir. 1973). Indeed, the issue of attorney's fees for
legal representation in state deferral proceeding arose but
was undecided in Batiste. 350 F. Supp. at 15.
"Whether that provision empowers this court to award
counsel fees incurred in both state and federal pro
ceedings brought to vindicate civil rights or is
limited to fees associated only with the prosecution
of the federal remedy .is a question that need not be
decided in order to justify the order in the instant
proceeding, for the statute makes the award of fees
discretionary . . . [Looking to the circumstances of
absence of state law conferring fees in deferral pro
ceedings and plaintiff's election of remedies], this
court is of the opinion that Illinois law and policy
should control plaintiffs' Illinois claim and there
fore makes inappropriate an award of counsel fees for
the State proceedings."
Even assuming the validity of the district court's exercise
of "discretion" under Newman v. Piggie Park Enterprises, Inc.,
supra. the two grounds of comity and election of remedies
cited are inapplicable to federal agency administrative pro
ceedings. The Seventh Circuit reversed the underlying judgment
and remanded for further proceedings, leaving the attorney's
fees question open until a determination of who are prevailing
parties, 503 F.2d at 451.
- 47
- il.: - _. k V'U.,i».r- - - J - U J t l k k i - \ c 2 * - U S t i . C z L a » \ ' j J i ZiiiiilJ tL k tL L . .-
and "action taken on any complaint of discrimination," legis
lative history is replete with references to "complaint
71/
process," "complaint procedure," and "grievance procedures."
Furthermore, judicial notice may be taken of the fact
that "proceeding" commonly includes administrative proceed
ings in United States Code, see, e.g., the Administrative72/
Procedure Act, 5 U.S.C. § 551 et_ seq. indeed, congress
recently amended 5 U.S.C. § 6322 concerning leave for federal
employees for jury or witness service in a "judicial proceed
ing, " but went so far as to make clear that "[f]or the purpose
of this subsection, 'judicial proceeding' means any action,
suit, or other judicial proceeding, including any condemna
tion, preliminary, informational, or other proceeding of a
judicial nature, but does not include an administrative pro-73/
ceeding” (emphasis added).
71/ See, e.g.,H.R. Rep. No. 92-238, 92d Cong. 1st Sess. (1971)
at 23-24, Legislative History at 83-84; S. Rep. No. 92-415,
92d Cong. 1st Sess. (1971) at 14, Legislative History at 429;
Chandler v. Roudebush, supra, Brown v. General Services Admin
istration, supra; Simmons v. Schlesinger, supra.
72/ The APA is cited in Title VII at § 716(a), 42 U.S.C.
§ 2000e-12(a).
73/ See also 5 U.S.C. § 8125; 18 U.S.C. § 205; 33 U.S.C.
§§ 923(b), 924, 927 and 928 (provisions in which term "pro
ceedings" refers to administrative proceedings. Indeed,'18
U.S.C. § 205's use of "proceedings" which regulates conflicts
of interest by federal officers or employees has been speci
fically construed to apply to "an administrative grievance
proceedings, such as the EEO complaint procedure," Memorandum
To Heads Of Departments and Agencies From Attorney General
Edward H. Levi, dated November 20, 1975. 33 U.S.C. § 927 is
an unmistakable provision for fees for legal representation
before the Employees' Compensation Board of the Department of
Labor, compare Red School House, Inc. v. Office of Economic
Opportunity. 386 F. Supp. 11/7, iiyb-i±97 (D. Minn. 1974)
(0E0 regulations at 45 C.F.R. § 1067.2-5 provide for attorney's fees).
- 48
Similarly, use of "pursuant to this title" ("to this sub
chapter" in United States Code) indicates that § 2000e-5 (k) was
intended to include administrative proceedings (A.25-26). In statu
tory schemes in which there are both administrative and judicial
remedies, congress usually indicates if fees are limited to judicial74/
proceedings with some precision.
Notwithstanding the clear statutory potential for attor
ney's fees awards in the § 2000e-5 enforcement scheme, the
Equal Employment Opportunity Commission in its implementing
regulations has created simple administrative proceedings in
75/which lawyers do not play an active role. As a result few private
industry employees seek fees under § 2000e-5(k) for admin
istrative proceedings. With respect to federal Title VII
1 / Thus, 42 U.S.C. § 406 of the Social Security Act provides speci
fically that HEW has power to grant fees for administrative proceed
ings and that courts have such power for representation "before the
court by an attorney." See Robinson v. Gardner. 374 F.2d 949, 951
(4th Cir. 1967); Ray v. Gardner. 387 F.2d 161, 165 (4th Cir. 1967).
§§ 8 and 16 of the Interstate Commerce Act, 49 U.S.C. §§ 8 and 16
limit awards "as part of the costs in the case" and "as part of the
costs of the suit," and there is "absen [t]...any reference to proceed
ings anterior to the action." Furthermore, "[i]t is only when damages
are receovered by suit that a fee is to be allowed", Meeker v. Lehigh
Valley Ry, Co., 236 U.S. 412, 432—433 (1915). Two other cases apply
Meeker to the same statute, Mills v. Lehigh Valley Ry.. 238 U.S. 473
(1915), or an identical provision in a similar statutory scheme. Hays
Livestock Commission Co. v. Maly Livestock Commission. 498 F.2d 925
(10th Cir. 1974). 47 U.S.C. § 206 of the Communications Act of 1934
establishes common carriers' liability for damages "together with a
reasonable counsel or attorney's fee, to be fixed by the court in every
case of recovery." (§ 207 provides that any person claiming to be
damaged may either make an administrative complaint or bring suit,
"but such person shall not have the right to pursue both such remedies.')
See Federal Communications Commission v. Turner, 514 F.2d 1354 (D.C.
1975) ? Fitzgerald v. U.S. Civil Service Commission. 407 F. Supp. 380. 382 (D.D.C. 1975) .----------------------------------
To be sure, attorney's fees cannot be obtained for administrative
proceedings which are not "pursuant to this title," see, e.g.. Pearson
v. Western Electric Co.. 12 EPD f11,223 at p. 5678 (10th Cir. 1976)
(arbitration proceedings).
75/ See 29 C.F.R. § 1601.5 et seq.; Love v. Pullman Co.. 404 U.S. 522
(1972); Sanchez v. Standard Brands. Inc.. 431 F.2d 455 (5th Cir. 1970).
- 49
§ 2000e-16(b) administrative proceedings, it is clear that
"any actions or proceedings pursuant to this title" includes
awards for these proceedings to the same extent § 2000e-5 (k)
does in its original setting. "Sections 706(f) through (k),
42 U.S.C. § 2 000e-5(f) to § 2000e-5(k), which are incorpo
rated 'as applicable' by § 717(d), govern such issues as . . .
attorney fees, and the scope of relief," Brown v. General
Services Administration, 48 L.Ed. at 411. Furthermore, un
like the EEOC, the Civil Service Commission's implementation
regulations create an administrative process in which legal
counsel play a substantial role for both complainant employ
ees and agency management. As this Court put it in Simmons
v. Schlesinger, "unlike the private employee who has only
one right to an adversary hearing and that at the judicial
level, the federal employee has two rights to an adversary
hearing, one administrative and one judicial. Either may
result in an effective order of enforcement and provide him,
if his claim is found warranted, with full relief, including
back pay, attorneys' fees and reinstatement of employment"
767(emphasis added).
76/ Legal representation is not unusual in federal Title VII
administrative proceedings, see Hackley v. Roudebush, 520 F.
2d 108, 140 n. 130 (D.C.Cir. 197671
II. . . And although nothing precludes a complainant
from selecting an attorney as his representative
during agency proceedings, congress was cognizant
of the fact that Federal employees often needed
counsel in these complicated areas, but seldom could
afford such expenses. . . Thus, it may be particu
larly oppressive to bind legally unsophisticated
employees to complex and difficult choices made
_ 50
That "a lawyer would often be a practical necessity,
particularly at the administrative hearing, is clear from a
review of civil Service Commission and Army regulations: A
lawyer may be needed before the hearing to draft the
76/ (Continued)
without adequate assistance at the agency level;
indeed, the fact that the complaints examiner
and EEO counselors need have no legal training
exacerbates these problems since they are not
therefore sensitive to the problem of preventing
an unintentional or uninformed waiver of rights
by complainants. Of course, the agency repre
sentative (whose primary loyalty is to the agency)
will more than likely be an attorney, thereby
aggravating the differential between the resources
of the agency and those of the complainant.
See also Simmons v. Schlesinger, supra; Copeland v. Brennan,
9 EPD 510,1127 (D.D.C. 1975).
The civil Service Commission's regulations expressly
recognize that the complainant employee has the right to have
a representative from the filing of the administrative com
plaint forward, see 5 C.F.R. §§ 713.214(a), 713.215, 713.218
(c)(2), 713.221(b)(1) and CPR 713.B-4e, but no right to have
a lawyer appointed. The Appeals Review Board of the commis
sion has specifically held that the regulations do not allow
for counsel fees to complainant who prevails in the adminis
trative process. In re Brown. Appeals Review Board Decision
(November 8, 1974TT
Thus, if the complainant cannot afford to hire an
attorney, he can get counsel only if he can convince a govern
ment-employed attorney to act as his representative, under
the regulations, however, only an attorney employed by the
complainant's own agency can do so on official time, if such
representation is not "inconsistent with the faithful per
formance" of the attorney's regular duties as determined by
the agency. An attorney from another agency can act as rep
resentative only by using up annual leave or by taking a
leave without pay. FPM Bulletin No. 713.41, October 10, 1975. Management officials of course have no such difficulties and
are usually represented by an attorney, see Hackley v. Roudebush,
supra. In any event, at no time was Mr. Johnson offered counsel
for administrative proceedings.
77/ McMullen v. Warner, supra, 12 EPD at p. 5124.
51
argue against rejection of theadministrative complaint,
79/
complaint, bring matters to the attention of the agency
80/ 81/
investigator, and negotiate adjustment of complaint
The hearing is preceded by a pre-hearing conference at which
issues are identified and limited, witness and sequence of
witnesses identified, stipulations of fact drawn up and how
82/
parties plan to support their positions discussed. At the
hearing, the complainant is expected to put evidence into
the record, to offer proof, to argue against exclusion of
evidence, to take exception to admissibility rulings, to
examine witnesses on direct, to cross examine witnesses and
83_/
to sum up. Post-hearing briefs and other submissions as
84/
well as appeals to Civil Service Commission may have to be
prepared. Because of procedural failings and improper sub-
85/stantive law standards applied in administrative proceedings,
legal counsel are needed more than in other proceedings to
protect the interest of complainants and to protect the
78
78/ See 5 C.F.R. § 713.214 and CPR 713.B-4, cf. Simmons v.
Schlesinger, supra.
79/ See 5 C.F.R. § 713.215 and CPR 713.B-5, cf. supra, at
5 ("complaint rejected in spite of continuing pattern of
discrimination").
80/ See 5 C.F.R. § 713.216 and CPR 713.B-6
81/ See 5 C.F.R. § 713.217 and CPR 713.B-7
82/ See U.S. civil Service Commission, Discrimination com
plaints Examiners Handbook (April 1973) at 33.
83/ See 5 C.F.R. § 713.218 and CPR 713.B-8; see generally
Discrimination Complaints Examiners Handbook.
84/ see 5 C.F.R. § 713.231-713.235 and CPR 713.B-13
85/ Compare, Day v. Weinberger, supra, with. In re Jensen, U.S.
Civil Service Commission Appeals Review Board Decision (July 14,
1976) (denying applicability of Day remedial standard).
- 52 -
record. Furthermore, lawyers paid by the agency represent
management officials notably at the hearing. As a matter of counter
vailing power alone, attorney's fees are required to assure
efficient Title VII administrative enforcement much less the
87/
appearance of fair administration.
86/
86/ See Hackley v. Roudebush. 520 F.2d at 137-41 and 171 (Leventhal,
J., concurring), U.S. Commission on Civil Rights, The Federal civil
Rights Enforcement Effort - 1974, Vol. V, To Eliminate Employment
Discrimination (July 1975) at 61-86, 619-623, 656-658; Ralston, The
Federal Government As Employer, 10 Ga. L. Rev. 717 (1976).
87/ The government's analysis of the statutory language begins on
a false note with reference to the doctrine of sovereign immunity
which is wholly inapplicable to actions prosecuted pursuant to 42
U.S.C. § 2000e-16. See e.q.. Roger v. Ball, supra, 497 F.2d at 708
n. 33 (4th Cir. 1974); cf. Fitzpatrick v. Bitzer, supra (state and
local government constitutional sovereign immunity no bar to Title
VII attorney's fees). "[T]his result would appear to be indicated
by the statutory language of Section 706 (k): '. . . and the Commission
and the United States shall be liable for costs the same as a
private person.'" U.S. Steel Corp. v. United States. 519 F.2d 359,
363-364 (3d Cir. 1975); Van Hoomissen v. Xerox Corp., 503 F.2d 1131
(9th Cir. 1974). U. S. Steel Corp. v. United States is specifically
approved in the Senate report on the Voting Rights Act extension and
in H. R. Rep. No. 94-1558, supra, at 7 and S. Rep. No. 94-1011 at
5. The Civil Rights Attorney's Fee 1̂ Act, in any event, applies to the
federal government, but no separate standard of recovery is indi
cated in statutory language or legislative history, see supra at
34-37. — --
The claim that "the term 'proceeding' as raised in Title VII
refers exclusively to judicial proceedings," 15, is fanciful at
best, see supra at 42 _ 49. it also is contended that because
28 U.S.C. §§ 2412 and 1920 limit award of costs to court costs, it
would be a "strained construction" to permit recovery of fees, 17-18.
However 28 U.S.C. § 2412 expressly states that such costs do "not
includ[e] the fees and expenses of attorneys," which is what is sought
here. Indeed, an anomaly would result if fees for the administrative
process are not provided, in light of the fact that all other federal
employees' costs in terms of docketing fees, transcripts, etc. are
in fact unnecessary or paid by the federal agencies. See generally
5 C.F.R. Part 713 and 5 CPR 713.B..The government's brief also is
noteworthy for relying on Meeker v. Lehigh Valley Rv. Co., supra. and Federal communications commission v. Turner, supra. 18-19, non-
Title cases which deal with different attorney's fees provisions
and which support the district court's conclusion, see supra at
49 n.- 74.. in short, the government offers nothing to rebut
the district court's conclusion that the terms of § 2000e-5(k)
plainly permit awards of attorney's fees for legal representation
in administrative proceedings authorized by the Act.
53
2. Legislative History
Available legislative history supports this reading of
§ 2 000e-5(k). Thus, the conference Report's section-by-section
analysis states simply, "The provisions of sections 706(f)
through (k), concerning private civil actions by aggrieved persons,
are made applicable to aggrieved Federal employees or applicants88 /
for employment." Most debate on the 1972 amendments concerned89/
granting EEOC cease-and-desist authority. While there is little
90 /on attorney's fees in the 1972 amendments to Title VII, one
colloquy between Senators Javits and Dominick concerned 2000e-5(k)'s
relevance to federal employee administrative proceedings. Senator
Dominick, the chief architect of the § 2000e-l6 enforcement schel^^
had submitted an amendment to the Senate bill S.2515 which inter
, . 92 / -----alia, would have struck 2000e-16(d). Senator Javits, in turn
93/
introduced an amendment to strike the amendment. On the floor,
Senator Javits justified his amendment by focusing on the importance
of § 2000e-5 provisions concerning court-appointed counsel and
waiver of fees, costs or security in judicial enforcement
^ i egjsl?tive History at 1851. Legislative history concerning § 2000e-16 is set forth in Hackley v. Roudebush. supra; chandler v. Roudebush. supra. “ — -------------
89/ See, e.g;, chandler v. Roudebush. suora. 424-431. ------------ ---- ^— ’ 48 L.Ed. 2d at
Grubbs v . Butz II. supra; sape & Hart, Title VII Recon-
The Equal Employment Opportunity Act of 1972. 40 Geo Wash. L. Rev. 824, 878-79 (1972).
9 0 / See
s T d e re d :
21/ Chandler v. Roudebush. supra, 48 L. Ed. 2d at 430-431 n. 36
92/ Legislative History at 557, 408.
93/ Legislative History at 868.
54
actions. Whereupon, Senator Dominick responded in broader
terms in accepting the javits amendment.
Mr. President, I want to say for the record
that this particular amendment language was
included, as the specific provisions of the
bill deal only with Federal employees for whom
we had a different procedure. They go through
their own agencies and then they have the right
as a Federal employee to go to the civil service
board or to go through the Federal court system.
The amendment to strike the language was included
because the language to be struck was thought to
be inappropriate to the specialized grievance
procedures adopted m committee for Federal
employees. A closer reading of sec. 706(g)
through (w) does indicate that language for
providing attorney's fees and waiving court
costs are applicable (emphasis added). 95/
Senator Dominick's comments indicate his understanding that
§ 2000e-5(k) applies to "the specialized grievance procedures
96/
adopted in committee for Federal employees,"
Certainly, 1972 legislative history indicates no intent
to limit the plain meaning scope of § 2000e-5 (k) and no intent
to exclude attorney's fees for legal representation in Title VII
federal administrative proceedings. Indeed, Congress indicated
that it was ratifying the liberal construction the courts had
previously given the Title II and VII provisions by retaining
the original Title VII provision and making it applicable to
94/
94/ Legislative History at 868-69.
^n.^®9islatxye History at 872. § 706(g)-(w), as enacted, became
f u «s*9*.§ 2000e-5(g)-(k), Legislative History at1562. The Javits-Dominick colloquy is also discussed in Hackley
v. Roudebush. supra. 520 F.2d at 143 n. 139. ------
96/ "Congress was cognizant of the fact that Federal employees
often needed counsel in these complicated areas, but seldom could
afford such expenses," Hackley v. Roudebush. supra. 520 F.2d 140
n. 130, infra at -
55
federal employment discrimination. Whatever doubt as to the
scope of § 2000e-5(k) is settled by the subsequent legislative
history of the Voting Rights Act attorney's fee provision and
the Civil Rights Attorney's Fees Act, supra at 34-38. rThe
government, however, directs attention to floor debate on an
unsuccessful attempt to amend § 2000e-5(k) in order to allow
small businesses and unions awards of attorney's fees in which
two Senators stated their different understanding of the prevailing 98 f
law. If significant, it cuts against the government. First,
97/
97/ See supra at 34.
98/ on January 21, 1972, Senator Gambrell, an opponent of
cease-and-desist enforcement authority offered Amendment No. 810
to S.2515 that, inter alia, small businesses must be indemnified
for attorney's fees and expenses of appearing before the EEOC
in cease-and-desist proceedings, Legislative History 687-689,
790-792. Senator Gambrell stated his belief lin judicial rather
than administrative cease-and-desist enforcement;and the purpose
of the amendment "to assure that enforcement of this legislation
which must necessarily be selective and exploratory, does not
have the effect of destroying small business," Legislative
History at 688. Thereafter, on January 27th, Senator Gambrell
offered a revision of his amendment, Amendment No. 833. Senator
Gambrell reiterated his opposition to cease-and-desist authority
and the purpose of "grant[ing] some relief to small businesses
and small labor unions which may, under this Act, be accused of
engaging in unfair, discriminatory employment practices which
are banned by the act," Legislative History at 1013-1015. On
January 31st, Senator Gambrell called up Amendment No. 833,
Legislative History at 1177-1184. He explained the limited aim
of his amendment.
"Mr. President, the civil Rights and Equal Employment
Opportunity Acts themselves, which are being amended
under the pending legislation, already provide discretionary
authority for the Commission to pay costs and attorney fees
to a prevailing party in such a case. In other words.
if I am proceeded against, and I win, the Commission can
say "We are sorry about the harassment we have caused, and
we will pay your costs and attorney fees.'
"We make this change or this addition: We leave the
amendment without change except that we provide for
discretionary authority in the case of the prevailing
party. We say that any respondent— that is, a labor union
or an employer— who qualifies as a small business or a
- 56 -
■lyyg'r.
Senator Gambrell, the amendment's author, stated his under
standing that fees are obtainable in EEOC proceedings. Senator
Mondale's comments are not entitled to any great countervailing
98/ (Continued)
small union can be compensated for his expenses, or
expenses and fees, even if he loses or even if he is
found at fault, so long as it is not determined that he
conducted his defense in a manner inconsistent with the
achievement of the purposes of the act.
Legislative History at 1178-1179 (emphasis added). Senator
Williams opposed the amendment on the basis of cost arising
from mandatory advance payment of fees and costs. Legislative
History at 1184-1185. Then Senator Mondale offered a substitute
to Amendment No. 833 which tracked it, but replaced references
to "respondent” businesses with the term "prevailing party,"
Legislative History at 1185-1186. Senator Mondale explained that
his substitute "is designed to preserve a basically valid
proposition in that amendment - but seeks to substitute language
which I think is essential" and that the § 2000e-5(k) is unchanged
except in two respects.
"The proposed substitute would liberalize that pro
vision in two basic respects. First, it would add
authority to award costs to the prevailing party with
respect to the cost of a proceeding before the Commission.
The underlying law to which I have referred does not permit
the awarding of fees with respect to proceedings before
the Commission. So it liberalizes the fee awarding powers
in that respect.
"Second, it makes awarding of such fees mandatory for
small businesses and for unions, when they prevail before
the Commission or before the court, rather than leaving
it discretionary as it now is.
* * *
"Principally, Mr. President, my objection to the
amendment offered by the Senator from Georgia is that
while I think it justifiably recognizes the question of
costs that may be visited on small businesses or small
unions, it has built within it an unfortunate dimension —
a dimension allowing Government funds to be used to finance
resistance to legitimate cases; under the original amend
ment, it is not necessary that the small business or the
union be the prevailing party. Thus, they can take a
case that is without any foundation and, at Government
expense and for long periods of time, hold proceedings
before the Commission or hold procedings [sic] before
the courts and be awarded fees — no matter how groundless
the case is.
(Cont*d)
57
weight and are inconsistent with the terms of the amendment.
Second. the general context of Senator Mondale and other Senate
proponents of cease-and-desist authority, over the course of an
99/
98/ (Continued) * * *
"I think that modification retains the basic validity
of the amendment offered by the Senator from Georgia
without risking, in addition, the problem to which I
have made reference."
Legislative History at 1187 (emphasis added). There followed a
colloquy in which Senator Gambrell insisted that the substitute
"would wholly thwart the purpose of the amendment" and Senator
Mondale reiterated that the substitute "greatly liberalizes"
relief for small businesses and unions. Legislative History at
1188-1191. There was no discussion of the different views as
to existing law on fees for EEOC proceedings, with some modi
fications, not here relevant, the substitute amendment passed
72-2, Legislative History at 1190-1195. Thereafter, the cease-
and-desist enforcement scheme was replaced with Senator Dominick's
compromise court enforcement proposal, see Hackley v, Roudebush,
supra, 520 F. 2d at 129. The amendment was deleted in conference
without mention of fees for Commission proceedings.
"The Senate amendment permitted payment of costs
and counsel fees to small employers or labor organi
zations if they prevailed in actions brought against
them by the Commission or the United States. An
employer or union with 25 or fewer employees or members
would have been entitled to up to $5000, and an
employer or labor organization with from 25 to 100
employees or members whose average income from such
employment was less than $7500, would have been
entitled to one-half the cost of its defense up to
$2500. The House bill had no comparable provisions.
The Senate receded."
Conference Report, Equal Employment Opportunity Act of 1972,
S. Rep. No. 92-681, 92d Cong., 2d Sess. (1972) at 19; Legislative
History at 1817.
99/ Neither the amendments nor the substitute had "additional"
language specifically providing for fees to prevailing parties
other than small businesses and unions (other than the phrase
"the Commission or court, as the case may be" may award fees)
so that, as to court awards, there is no change of existing terms
supporting Senator Mondale's assertion that the amendment would
liberalize prior law as to all prevailing parties. The substitute
basically tracked the language of the second Gambrell version which
treats awards to small businesses and unions as a special case
precisely because prevailing parties could recover fees in
administrative proceedings. Senator Mondale also never explained
58
intense month-long debate, seeking to advance their principal
object by compromise and limiting the impact of opponent's
amendments must be considered. The specific context of the
comment also is not mentioned: ad hoc floor debate justifying
a substitute that altered the basic thrust of Senator Gambrell's
proposal, but had to be made palatable as "retain[ing] the basic100/
validity of the amendment." Third, Senator Mondale, while on
the Senate Committee on Labor and Public Welfare, was not a
specialist as was Senator Gambrell who had steeped himself in
the fees question and problems faced by small businesses and
unions in EEOC proceedings, or Senator Dominick who was the
101/
expert on federal employment matters generally. Fourth,
Senator Mondale's comments on existing law were offhand and not
integral to congressional consideration of the substitute amend
ments. Had the amendments become law whether he or Senator
Gambrell was right about prior law would have been of no moment,
in contrast to, for example, the necessary explanation of the
scope of the Title VII provision in the legislative history of
the Civil Rights Attorney's Fees Act. Thus, both senators
focused on the key aspect, adequate assistance for small businesses
and unions, and did not discuss their different views of existing
99/ (Continued)
the inconsistent use of the term "proceeding" in § 2000e-5 (k) and
his own use of "proceedings before the Commission" and "proceeding
before the courts" in speaking of § 2000e-5(k) and the amendment.
See, e.g., Hackley v«. Roudebush, supra, 52 0 F.2d at 12 9-131?
Chandler v. Roudebush, supra, 48 L. Ed. 2d at 424-429.
121/ Compare the treatment of contradictory comments by Senators
Williams and Dominick on the trial de novo question in chandler v.
Roudebush, supra. 48 L. Ed. 2d At 437T n. 36? Hackley v. Roudebush.
supra. 520 F.2d at 146-147.
59
law. The Conference report mentioned only the adequate
assistance aspect of the amendment. Fifth, both Senators agreed
as to what the law should be on the basis of that part of the
amendment that essentially left the existing statutory terms
intact; the Conference section-by-section analysis described
the Senate receding only from the mandatory award part of the
amendment. Thus, if significant, this 1972 legislative history
is consistent with appellant's position.
Award of attorney's fees for legal representation in the
administrative process is also consistent with the purposes of
102/
§ 2000e-16 revealed in a reading of legislative history. As to
encouraging private attorney general enforcement, there is no
doubt that awards of attorney's fees are likely to facilitate
both filing and prosecution of discrimination claims in administra
tive proceedings, in enacting § 2000e-16, Congress was specially
concerned that federal employees would be discouraged from
filing or/ if they did file, could not effectively prosecute
103/their claims in agency administrative proceedings. The
administrative process is essentially unchanged since Congress
indicated that, " [a] principal goal of the [1972 amendments] was
102/ See Newman v« Piggie Park Enterprises, supra, 390 u.S. at
402; U. S. Steel Corp. v. United States, supra. 519 F.2d at 363-364;
Grubbs v. Butz| supra, 12 EPD at pp. 5058-5059.
103/ "The testimony before the Labor Subcommittee reflected a
general lack of confidence in the effectiveness of the complaint
procedure on the part of Federal employees. Complainants have an
indicated skepticism regarding the Commission's record in obtaining
just resolutions of complaints and adequate remedies. This has,
in turn, discouraged persons from filing complaints with the Com
mission for fear that doing so will only result in antagonizing
their supervisors and impairing any future hope of advancement."
Legislative History at 423.
- 60
■■ • • • v :.:ry ~?\ * i2iiS
to eradicate "entrenched discrimination in the Federal
104/service" . . . by strengthening internal safeguards . . . ,‘nr
see infra at 67 - 69. There is no question that the availability
of attorney's fees in proceedings in which complainants are
105/faced with the prospect of essentially adverserial hearings and in
which management is represented by an agency lawyer, will encourage
private enforcement of Title VII guarantees. Encouraging full
use of administrative proceedings promotes the "balance,
completeness and structual integrity" of the administrative-
judicial enforcement scheme recognized in Brown v. General
Services Administration by preventing unnecessary court litigation.
Denying fees in administrative proceedings, rendering the
administrative process an attractive forum, will cause employees
to sue at the first opportunity, such as immediately after
180 days from the filing of an initial charge, see Grubbs v .
Butz I, supra. In such situations, complainants could
reasonably decide that it would be better to go forward in court
where appointment of counsel, waiver of fees and costs, and awards
of attorney's fees and costs are available.
The instant case is an example: Mr. Johnson was able to
prove discrimination and obtain retroactive promotion and back
pay for himself, and other relief for black employees generally
as a result of the hearing and other administrative proceedings.
The government does not dispute the worth of the legal repre
sentation or that it should be granted if authority exists, supra
104/ Chandler v. Roudebush. supra, 48 L. Ed. 2d at 420.
105/ See Simmons v. Schlesinger, supra, slip opinion at 11.
- 61
— — ik u i& . t &£&i»iikdtsii5s iik L ^ s . - . .V •-. ^ i .- .iv ii•. «& £iJu2^M 2A tel- - M- '. 'mi i ̂ . l - -«' < .r*-biw :±x.: . . ~ a t '^ a ; ,-.
at 24. Nor can the government deny that management was
represented at the hearing by a Staff judge Advocate lawyer and a
personnel expert, supra at 7. Against such opposition, it is
more than likely that Mr. Johnson would have lost had he not had
his own counsel, and that the controversy would have been resolved,
106/
if at all, by a federal district court.
An award of attorney's fees also has deterrent value in
penalizing agencies for unnecessarily _ delaying remedy of
discrimination by raising untenable defenses. The Senate
Committee report criticized the Civil Service Commission pre
cisely because of the need "to develop more expertise in recognizing
and isolating the various forms of discrimination which existed
107/
in the system it administers." Furthermore, the very standard
by which federal agencies adjudicate discrimination complaints is
108/at variance with what courts have construed Title VII to require.
A potential award will have a prophylactic effect on an agency*
bent generally on unjustified delay. The instant case, for example,
dragged on for years in administrative proceedings because of
the agency's erroneous rejection of Mr. Johnson's complaint of
109/
continuing discrimination, see supra at 4 n. 3.
-•LP.5/ The record of the administrative hearing would have been
inadmissible or entitled to little probative weight, supra at 31 n.41
if Mr. Johnson had not been represented in the face of management's
advantages.
107/ Legislative History at 423-24. For the convenience of the
Court the relevant passage from the Senate committee report is set
forth in Appendix A.
i2§/ Hackley v. Roudebush. supra, 520 F.2d at 138 n. 129 and 171
n. 3 and accompanying text (Leventhal, J.); see also supra, at 52 n. 85.
109/ What the Supreme Court stated in this connection as to back
pay awards in Albemarle Paper Co. v. Moody, supra, 422 U.S. at
417-418, is also true of attorney's fees awards:
62
(Cont'd)
An award of attorney's fees, as an equitable remedy
under Title VII, would also serve the purpose of practically
110/
making whole the complainant employee. Denial of attorney's
fees can result in throwing the whole burden of paying counsel
for prosecuting a discrimination charge on the employee's back
pay recovery; even if he prevailed on the merits and obtained
injunctive and back pay for himself and private attorney general
gains for fellow employees, he would still not be whole. An
109/ (Continued)
"If employers faced only the prospect of an
injunctive order, they would have little
incentive to shun practices of dubious legality.
It is the reasonably certain prospect of a back
pay award that 'provide [s] the spur or catalyst
which causes employers and unions to self-examine
and to self-evaluate their employment practices
and to endeavor to eliminate, so far as possible,
the last vestiges of an unfortunate and ignominious
page in this country's history, united states v.
N. L. Industries. 479 F.2d 354, 379."
1_1_0/ See Albemarle Paper Co. v. Moody, supra; Franks v. Bowman
Transportation Co., __ U.S. __, 47 L. Ed. 2d 444 (1976).— This
purpose is made clear in the Conference Committee Section-by
section analysis of the 1972 amendments to Title VII as enacted
affirming the "make whole" purpose of Title VII. Referring to
related § 706(g), 42 U.S.C. § 2000e-5(g), the analysis stated:
The provisions of this subsection are intended
to give the courts wide discretion exercising their
equitable powers to fashion the most complete relief
possible. In dealing with the present Section 706(g)
the courts have stressed that the scope of relief
under that section of the Act is intended to make the
victims of unlawful discrimination whole, and that the
attainment of this objective rests not only upon the
elimination of the particular unlawful employment
practice complained of, but also requires that persons
aggrieved by the consequences and effects of the unlaw
ful employment practice be, so far as possible, restored
to a position where they would have been were it not
for the unlawful discrimination! Legislative History at 1 8 4 8 (emphasis added).
See also Franks v. Bowman Transportation Co., supra. 47 L. Ed. at
- 63
example would be the reasonable cost of legal representation
in the instant case: $3,500 or $93.37 more than Mr. Johnson
111/ ----------------------------
recovered in back pay. Title VII attorney's fees awards are
designed to overcome just such crippling by removing the need for
counsel to prosecute claims as a possible obstacle to assertion
of charges and to safeguard the'make whole^purpose of the Act.
Moreover, congress cannot have intended to create a statutory
scheme with "a careful blend of administrative and judicial
enforcement powers" in which employees who pursued their claims
in one 2000e-16 forum could truly be made whole but those who
resorted to another could not.
B. Attorney's Fees Under 42 U.S.C. § 2000e-16(b)
1. Statutory Language
Pursuant to § 2000e-16(b) the civil Service commission
"shall have authority to enforce the provisions [prohibiting
employment discrimination] through appropriate remedies, including
reinstatement or hiring of employees with or without back pay,
as will effectuate the policies of this section" (emphasis added).
§ 2 000e-16(b) thus is a straightforward grant of plenary remedial
authority whose terms clearly could encompass an award of
attorney's fees. This Court has so observed in Simmons v .
Schlesinger. supra. slip opinion at 11, that either the agency or
court may provide an employeej if his claim is found warranted3
ili/ "Small recoveries would make it impossible for the persons
involved to undertake to pay those fees outright, for the fees
would often equal or exceed the amount to be recovered, it
simply cannot be that the Congress intended the rights it granted
in the Act to be crippled in this fashion." Fitzgerald v. CSC.
supra. 407 F. Supp. at 387.
64
"with full relief including back pay, attorney's fees and rein
statement of employment." § 2000e-16(b) does contemplate awards of
fees since it is based, like § 2000e-5(g) remedial provision, on
§ 10(c) of the NRLA, 29 U.S.C. § 160(c), that has long been con
strued to permit recovery of fees by complainants in NLRB pro
ceedings in circumstances of bad faith defense. See, e.g.. NLRB
v. Food Store Employees. 417 U.S. 1, 8-9 (1974). Compare similar
language, for instance, "appropriate remedies...as will effectuate
the policies of this section" with language like "such relief
(including injunctions) as may be appropriate" in § 102 of the
Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C.
112/
§ 4 1 2 , construed in Hall v. Cole. 412 U.S. 1 (1 9 7 3 T or language
that, "[t]he administrative authority shall take the corrective
action that the Commission finally recommends" in 5 U.S.C. § 7701,
construed in Fitzgerald v. U.S. Civil Service Commission, supra, to
permit awards of fees. In construing similarly broad language in
the related § 706(g) provision for judicial relief, 42 U.S.C.
1 1 3 /
§ 2000e-5(g), the Supreme court has indicated that language and
legislative history are "emphatic confirmation that federal courts
are empowered to fashion such relief as the particular circumstances
of a case may require to effect restitution, making whole insofar
1 1 4 /as possible the victims of racial discrimination."
112/ Hall v. cole was specifically approved in Alyeska pipeline Co.
v. Wilderness Society, supra, 421 U. S. at 257.
1 1 3 /=/ Section 2000e-5(g) provides, in pertinent part, "the court may
enjoin the respondent from engaging in such unlawful employment
practice, and order such affirmative action as may be appropriate,
which may include, but is not limited to, reinstatement or hiring
of employees, with or without back pay..., or any other equitable
relief as the Court deems appropriate."
114/ Franks v. Bowman Transportation Co., supra, 47 L.Ed. 2d at 461,*
Albemarle Paper Co. v. Moody, supra. Similarly, the Supreme Court
in Chandler v. Roudebush. supra. 48 L.Ed. 2d at 432. responded to
65
•1. 11’- 4 . ^ - 1.IL.-1. C'ihl;!.ifnr- .i fcJuv ku
Ij
j1
!I
iI
In fact, the question is narrower than would at first appear.
First, as discussed above, courts may award attorney's fees for
legal representation in administrative proceedings pursuant to § 2000e-
5(k). Thus the question involves only the parity of judicial and
administrative remedial power. Second, the government does not oppose
so much the essential relief sought by its form. As discussed above,
legal representation is contemplated and even made available in the
administrative process, albeit in very limited fashion that employees
115/
can reasonably find unsatisfactory. It ie clear t h a t _
although providing representatives, and even lawyers paid by the
agency to effectuate private enforcement in administrative proceedings
116/
is not mentioned in § 2000e—16(b), the propriety of these alternatives
to counsel fees is not questioned. Third, the government has conceded
both the discretionary propriety of a fees award under the Newman v.
Pigcrie Park Enterprises standard in the circumstances of the case and
the court's determination worth of the legal services rendered, see
supra at 24. It simply is inexplicable why Mr. Johnson should be
denied fees in light of the substantial benefits and enforcement
| ----------------------------------
114/ (Continued)
the government's argument at a trial de novo was not required because
of a purported presumption against de novo review and "the absence
of specific statutory authorization:" "Here...there is a 'specific
statutory authorization' of a district court 'civil action,' which
both the plain language of the statute and the legislative history
reveal to be a trial de novo" (emphasis added). Although, an aspect
| of enforcement or form of relief is not specifically mentioned on the
face of the statute (trial de novo in Chandler and retroactive seniority
relief in Franks). Title VII does not preclude it.
115/ see supra at 50-51.
116/ 42 U.S.C. § 2000e-16(b) provides, in pertinent part,
" [T]he civil Service Commission ... shall issue such
rules, regulations, orders and instructions as it deems
necessary and appropriate to carry out its responsibili
ties under this section."
- 66 -
of Title VII obtained in the instant case in administrative pro
ceedings pursuant to 42 U.S.C. § 2000e-16(b).
2. Legislative History
Section 2000e-16 (b)'s remedial provision was occasioned by claims
of federal agencies that their statutory authority to provide relief
for employment discrimination was limited. Thus, the Senate com
mittee report explains:
"[T]he remedial authority of the commission . . . has been
in doubt. The provisions adopted by the committee will
enable the Commission to grant full relief to aggrieved
employees, or applicants, including back pay and immediate
advancement as appropriate." Legislative History at 425.
A specific predicate for the § 2000e-16(b) attorney’s fees provision
was Congress1 concern to make administrative proceedings function
more effectively. In the House version as introduced, the EEOC was
given the Civil Service commission's authority over federal equal
employment opportunity programs because Congress was so dissatisfied
117/with, inter alia, administrative procedures. However, the CSC retained
jurisdiction in the compromise versions that passed the Senate and con-
118/ference. The legislative history nevertheless contains an indictment
of existing administrative procedures. See Morton v. Mancari. 417
U.S. 535, 546-47 (1974); Chandler v. Roudebush, supra, 48 L.Ed. 2d at
432 n. 39; Hackley v. Roudebush. supra, 520 F.2d at 127-28. The
Senate report stated that the procedure "may have denied employees
adequate opportunity for impartial investigation and resolution of
119/
complaints." in the Senate report, Congress stated that § 2000e-16(b)
117/ See Legislative History at 59-60, 83-86.
118/ See Hackley v. Roudebush. supra, 520 F.2d at 126-28.
119/ Legislative History at 423, see also 84.
67
remedial and rule-making authority "is intended to enable the
Commission to reconsider its entire complaint structure and the
relationships between the employee, agency and Commission in these 120/
cases." This report went on to criticize the government's lack
of expertise in recognizing and isolating discrimination and its
failure to address systemic discrimination. The Senate report also
declared, "in order to assist the Commission in accomplishing its
goals and to make clear the Congressional expectation that the Com
mission will take those further steps which are necessary to satisfy
the goals of Executive Order 11478, the Committee adopted in Section
707(b) [sic] of the bill specific requirements under which the com
mission is to function in developing a comprehensive equal employment121/
opportunity program." Obviously, exercise of § 2000e-16(b) remedial
authority to award attorney's fees and costs under prevailing legal
standards is calculated to make the administrative process more effec
tive. As Judge Wright pointed out in Hackley v. Roudebush, supra,
520 F.2d 140 n. 130, "Congress was cognizant of the fact that Federal
employees often needed counsel in these complicated areas, but seldom
122/
could afford such expenses."
Furthermore, the Senate report explained § 2000e-16(b)'s scope
in terms that leave no doubt as to its plenary nature:
"[T]he provision in Section 717(b) for applying
"appropriate remedies" is intended to strengthen
the enforcement powers of the civil Service Com
mission by providing statutory authority and support
for ordering whatever remedies or actions by Federal
120/ Legislative History at 423.
121/ Legislative History at 424.
122/ see, e.g.. Legislative History at 85; Hearings on S.2515, S.2617
H.R. 1746 Before the Subcom. On Labor of the Senate Comm. On Labor
and Public Welfare, 92d Cong., 1st Sess. at 342-43.
68
L i.'— - *~- C A y<->fe- ta - -
123/
employment. (emphasis added).
The Conference .ommittee's section-by-section analysis is to the
same effect:
'the Civil Service Commission would be authorized to grant
appropriate remedies which may include, but are not
limited to, back pay for aggrieved applicants or employees.
Any remedy needed to fully recompense the employee for his
loss, both financial and professional, is considered appro
priate under this subsection.”124/ (emphasis added)
Obviously recovery of attorney's fees is a remedy "needed to ensure
equal employment opportunity in Federal employment" or "needed to
fully recompense the employee for his loss, both financial and pro
fessional, " see Simmons v. Schlesinger, supra. As Judge Bryant put
it in Fitzgerald v. U.S. Civil Service Commission, supra. 407 F.2d at
386, concerning agency enforcement proceedings, "the possibility
seems remote that the Members of Congress who enacted this law, a
large percentage of whom were lawyers themselves, could have been
unaware that the sine qua non of legal representation in such matters
is the payment of substantial fee for time expended and costs in
curred in pressing the appeals." The possibility is even more remote
because Congress was specifically aware of the need for legal repre
sentation in administrative proceedings. Legislative history is thus
clear that Congress intended no arbitrary derogation of § 2000e-16(b)
authority as to award of attorney's fees for legal representation in
12-5/Title VII administrative proceedings.
123/ Legislative History at 424.
124/ Legislative History at 185, see 1843; compare 424, 1777, 1851.
125/ As to the consistency of § 2000e-16(b) award of fees and costs
with purposes revealed in legislative history, appellant incorporates
by reference the discussion, supra, at 60 - 64 on awards pursuant
to § 2000e-5(k).
Nor are civil Service commission regulations sacrosanct; courts
have declared the refusal to accept class claims in violation of
Title VII, Barrett v. u. S. Civil Service commission, 69 F.R.D. 544
(D.D.C. 1975); held the remedial standard applied in administrative
69
CONCLUSION
For the above reasons, the lower court's decision of June 8,
1976 should be affirmed.
CHARLES STEPHEN RALSTON
MELVYN R. LEVENTHAL
BILL LANN LEE
Suite 2030
10 Columbus Circle
New York, New York 10019
KENNETH L. JOHNSON
Johnson & Smith, P.A.
711 St. Paul Street
Baltimore, Maryland 21202
Attorneys for Appellee
126/ standards in violation. Day v. Weinberger, supra; and in the
instant case redressed the refusal to accept administrative complaints
of continuing discrimination, see supra at 5 (A. 45-46); compare
Blackmon v. McLucas, D.D.C. Civ. Act. No. 76-758 (decided December
6, 1976).
70
APPENDIX FOR STATUTES
Section 706(k) of Title VII of the civil Rights Act of
1964, as amended, 42 U.S.C. § 2000e-5(k), provides:
(k) In any action or proceeding under this
title the court, in its discretion, may allow
the prevailing party, other than the com
mission 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.
Section 717 of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. § 2000e-16, provides:
Sec. 717. (a) All personnel actions affecting
employees for applicants for employment (except
with regard to aliens employed outside the limits
of the United States) in military departments as
defined in section 102 of title 5, United States
Code, in executive agencies (other than the
General Accounting Office) as defined in section
105 of title 5. United States code (including
employees and applicants for employment who are
paid from nonappropriate funds), in the United
States Postal Service and the Postal Rate com
mission, in those units of the Government of the
District of Columbia having positions in the com
petitive service, and in those units of the
Government of the District of Columbia having
positions in the competitive service, and in those
units of the legislative and judicial branches
of the Federal Government having positions in the
competitive service, and in the Library of Congress
shall be made free from any discrimination based
on race, color, religion, sex, or national origin.
(b) Except as otherwise provided in this
subsection the Civil Service Commission shall
have authority to enforce the provisions of sub—
section (a) through appropriate remedies, including
reinstatement or hiring of employees with or without
back pay, as will effectuate the policies of this
section, and shall issue such rules, regulations,
orders and instructions as it deems necessary and
appropriate to carry out its responsibilities under
this section. The civil Service Commission shall—
(1) be responsible for the annual review
and approval of a national and regional equal
employment opportunity plan which each depart
ment and agency and each appropriate unit
referred to in subsection (a) of this section
shall submit in order to maintain an affirmative
program of equal employment opportunity for all
such employees and applicants for employment;
(2) be responsible for the review and evalu
ation of the operation of all agency equal
employment opportunity programs, periodically
obtaining and publishing (on at least a semi
annual basis) progress reports from each such
department, agency, or unit? and
(3) consult with and solicit the recommendations
of interested individuals, groups, and organi
zations relating to equal employment opportunity.
The head of each such department, agency, or unit shall
comply with such rules, regulations, orders, and
instructions which shall include a provision that an
employee or applicant for employment shall be notified
of any final action taken on any complaint of discrimi
nation filed by him thereunder. The plan submitted by
each department, agency, and unit shall include, but
not be limited to—
(1) provision for the establishment of training
and education programs designed to provide a
maximum opportunity for employees to advance
so as to perform at their highest potential;
and
(2) a description of the qualifications in
terms of training and experience relating to
equal employment opportunity for the principal
and operating officials of each such department,
agency, or unit responsible for carrying out the
equal employment opportunity program and of the
allocation of personnel and resources proposed
by such department, agency, or unit to carry out
its equal employment opportunity program.
With respect to employment in the Library of Congress,
authorities granted in this subsection to the Civil
Service Commission shall be exercised by the Librarian
of Congress.
(c) Within thirty days of receipt of notice of
final action taken by a department, agency, or unit
referred to in subsection 717 (a), or by the Civil
Service commission upon an appeal from a decision
or order of such department, agency, or unit on a
complaint 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
2a
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 department, 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 706, in which civil action the
head of the department, agency, or unit, as
appropriate, shall be the defendant.
(d) The provisions of section 706(f) through
(k), as applicable, shall govern civil actions
brought hereunder.
(e) Nothing contained in this Act shall
relieve any Government agency or official of its
or his primary responsibility to assure nondiscrimi
nation in employment as required by the Constitu
tion and statutes or of its or his responsibilities
under Executive Order 11478 relating to equal em
ployment opportunity in the Federal Government.
' 3a
‘ ' ' £r . V-
APPENDIX A
"The Commission should be especially careful
to ensure that its directives issued to
Federal agencies address themselves to the
various forms of systemic discrimination in
the system. The Commission should not assume
that employment discrimination in the Federal
Government is solely a matter of malicious
intent on the part of individuals. It apparently
has not fully recognized that the general rules
and procedures that it has promulgated may in
themselves constitute systemic barriers to
minorities and -women, civil Service selection
and promotion techniques and requirements are
replete with artificial requirements that place
a premium on 'paper' credentials. Similar require
ments in the private sectors of business have often
proven of questionable value in predicting job
performance and have often resulted in perpetuating
existing patterns of discrimination (see e.g.,
Griggs v. Duke Power Co., supra n. 1). The
inevitable consequence of this kind of technique
in Federal employment, as it has been in the private
sector, is that classes of persons who are socio
economically or educationally disadvantaged suffer
a very heavy burden of trying to meet such arti
ficial qualifications.
"It is in these and other areas where discrimi
nation is institutional, rather than merely a
matter of bad faith, that corrective measures
appear to be urgently required. For example, the
Committee expects the Civil Service Commission to
undertake a thorough re-examination of its entire
testing and qualification program to ensure that
the standards enunciated in the Griggs case are
fully met."
Legislative History at 423-424.
CERTIFICATE OF SERVICE
This is to certify that on this 3rd day of January, 1977
copies of Brief For Appellee were served on counsel for the
Pa£"ties by United States mail, postage prepaid, addressed
Robert E. Kopp, Esq.
John M. Rogers, Esq.
Appellate Section, Civil Division
U. S. Department of Justice
Washington, D. C. 20530
to:
Attorney for Appellee