Saunders v Claytor Brief for the Respondents in Opposition

    No. 80-995

<3tt ttjo Supreme Court of ttjo Putioii Jitatos
October Term, 1980

Etta B. Saunders, petitioner

v.
William Graham Claytor, J r .,
Secretary of the Navy, et al.

ON PETITION FOR A W RIT OF CERTIORARI TO 
THE UNITED ST  A TES COURT OF A PPEA LS FOR 

THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENTS 
IN OPPOSITION

Wade H. McCree, J r . 
Solicitor General 
Department o f Justice 
Washington, D.C. 20530 
(202) 633-2217



<3ltt tlje (Eauri of tfye Pttttpft jifetps
October Term, 1980

No. 80-995
Etta B. Saunders, petitioner 

v.
W illiam Graham Claytor, J r ., 
Secretary of the N avy, et al.

ON PETITION FOR A WRIT OF CERTIORARI TO 
THE UNITED STA TES COUR T OF A PPEA LS FOR 

THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENTS 
IN OPPOSITION

QUESTIONS PRESENTED

1. Whether Congress has waived the sovereign immunity 
of the United States in order to permit the addition of a cost 
of living “inflation factor” to a back pay award to a federal 
employee under T itle VII of the Civil Rights Act of 1964, 42 
U.S.C. 2000e-16(c).

2. Whether the court of appeals properly reversed the 
district court’s award of attorneys’ fees for all time spent on 
two consolidated cases where, as the district court itself 
held, petitioner did not prevail in one of the two cases.

I





Page

Statement ........................................................................  1
Argument ........................................................................  3
Conclusion ......................................................................  7

TABLE OF AUTHORITIES

Cases:

Albemarle Paper Co v. Moody, 422 U.S.
405 ....................................    4

Albrecht v. United States, 329 U.S.
599 ........................................................................  3

Alyeska Pipeline Service Co. v. Wilderness
Society, 421 U.S. 240 ...........................................  5

Blake v. Califano, 626 F. 2d 891 ....................3, 4, 5
Brown v. GSA, 425 U.S. 820 .................................  4
Chandler v. Roudebush, 425 U.S. 840 .................. 4
de Weever v. United States, 618 F. 2d

685 ....................................................................  3,4
EEOC v. Pacific Press Publishing Ass’n,

482 F. Supp. 1291 ............................................... 5
Fischer v. Adams, 572 F. 2d 406 ...........................  4
Fitzgerald v. Staats, 578 F. 2d 435, 

cert, denied, 439 U.S. 1004 .................................  4
Morton v. Mancari, 417 U.S. 535 .........................  4
Northcross v. Board o f Education,

611 F. 2d 624 .............   7
Richerson v. Jones, 551 F. 2d 918 .....................  2, 4

TABLE OF CONTENTS

III



IV

Page

Cases—Continued:

United States v. Alcea Band o f Tillamooks,
341 U.S. 48 ................................................... 3

United States v. Goltra, 312 U.S. 203 .................... 3
United States v. Lee Wav Motor Freight, Inc.,

625 F. 2d 918 ..........'.................................... . 5
United States v. Louisiana, 446 U.S.

253 ........................................................................  3
United States v. N. Y. Rayon Importing Co.,

329 U.S. 654 .............    3
United States v. Sherwood, 312 U.S. 584 .............. 3
United States v. Testan, 424 U.S. 392 .................... 3
United States v. Thayer-West Point Hotel 

Co., 329 U.S. 585 ................................................. 3
Van Winkle v. McLucas, 537 F. 2d 246, 

cert, denied, 429 U.S. 1093 .................................  4
Wicker v. Hoppock, 73 U.S. (6 Wall.) 9 4 .............. 4

Statutes:

Back Pay Act, 5 U.S.C. 5596(b)(1) .......................  4
Civil Rights Act of 1964, Title VII,

42 U.S.C. 2000e et seq. :
42 U.S.C. 2000e-5(k) .......................................  5
42 U.S.C. 2000e- 16(d) .....................................  5



STATEMENT
1: Petitioner was a civilian employee of the United States 

Department of the Navy in Alameda, California, from 1966 
until 1973, when she was terminated as a result of a reduc­
tion in force (RIF) (Pet. App. 12a-14a, 27a-28a). She was 
employed as an aircraft metalsmith (id, at 13a). In 1972, the 
Secretary determined that she had been denied a promotion 
in her job on the basis of her sex, and she was given appro­
priate relief (ibid.). In 1973, petitioner applied for a vacant 
position as an Equal Employment Opportunity (EEO) Spe­
cialist (id. at 14a). Had she been chosen for the job, she 
would not have been terminated in the RIF (id. at 22a).

Petitioner filed two separate lawsuits against the govern­
ment under Title VII of the Civil Rights Act of 1964, one 
challenging the RIF and the other challenging the Navy’s 
failure to select her for the EEO position (Pet. App. 2a). In 
each suit, petitioner claimed that the government’s action 
was based on unlawful discrimination on the basis of race or 
sex (id. at 2a-4a). After trial of the consolidated cases, the 
district court found that petitioner “failed to demonstrate 
by a preponderance of the evidence that she was RIFed on 
the grounds of her sex (female) or her race (Black)” (id. at 
31a). However, in petitioner’s separate action for denial of 
the EEO position, the district court found that she was 
denied that job as a “result of discriminatory and/or retalia­
tory animus” (id. at 25a). The district court awarded peti­
tioner reinstatement with retroactive seniority and place­
ment in the grade that the court determined she would have 
attained absent the discrimination (id. at 33a). Back pay 
was awarded, calculated on the basis of the promotions and 
step increases that the district court determined petitioner 
would have received (id. at 33a-34a). The government did 
not appeal the finding of liability or award of back pay 
relating to petitioner’s failure to obtain the EEO position, 
and petitioner did not appeal from the judgment against her 
in the RIF action.

1



2

2. The district court declined to award interest on peti­
tioner’s back pay award (Pet. App. 34a), relying on Richer- 
son v. Jones, 551 F. 2d 918, 925 (3d Cir. 1977), which held 
that sovereign immunity bars the award of interest on a 
back pay award against the federal government under Title 
VII. However, the district court added “a cost of living 
inflation factor” to the back pay award, based upon the 
average cost of living statistics of the United States 
Department of Labor (Pet. App. 34a-35a, 41a-42a),

Attorney’s fees of $65,675.00 were awarded by the district 
court for time spent by counsel in petitioner’s EEO action, 
on which she prevailed, and on her RIF action, in which the 
government prevailed (Pet. App. 44a-50a). The court stated 
that it was “irrelevant that [petitioner] did not ‘prevail’ on 
each issue tendered in the case” (id. at 47a).

3. The court of appeals reversed the award of the cost of 
living inflation factor, finding it barred by sovereign 
immunity. In the court’s view, the inflation factor “is very 
similar to an award of interest in that both types of awards 
are meant to compensate the victim for the belated receipt 
of employment pay” (Pet. App. 7a). Because an award of 
interest “is not permitted under present law,” the court 
found the award of the inflation factor adjustment equally 
prohibited, because it is “a disguised interest award” (id. at 
8a).

The court of appeals also held that the district court erred 
in awarding attorney’s fees for time spent on petitioner’s 
RIF suit, stating (Pet. App. 10a):

[Petitioner] had two separate pieces of litigation 
which were consolidated for trial purposes. She lost the 
RIF case. No issue raised in that case was sustained. 
She prevailed in the EEO case. This is the only case in 
which it is proper under the mandate of Congress to 
award a fee. The mere locking together of the two cases



3

under a consolidation order does not turn a lost case 
into one in which the party may be said to have pre­
vailed.

The court remanded for a determination of a proper attor­
ney’s fee award based solely on the EEO case (Pet. App. 
11a).

ARGUMENT

The decision of the court of appeals is correct and does 
not conflict with any decision of this Court or of the courts 
of appeals. Further review by this Court therefore is not 
warranted.

1. Sovereign immunity precludes an award of monetary 
relief against the United States without its consent. United 
States v. Testan, 424 U.S. 392 (1976); United States v. 
Sherwood, 312 U.S. 584 (1941). Accordingly, it is axiomatic 
that “[a]part from constitutional requirements, in the 
absence of specific provision by contract or statute, or 
‘express consent. . . by Congress,’interest does not run on a 
claim against the United States.” United States v. Louisi­
ana, 446 U.S. 253, 264-265 (1980). Accord, United States v. 
A/cea Band o f Tillamooks, 341 U.S. 48, 49 (1951); United 
Statesv. N. Y. Rayon Importing Co., 329 U.S. 654, 658-659 
(1947); Albrecht v. United States, 329 U.S. 599, 605 (1947); 
United States v. Thayer-West Point Hotel Co., 329 U.S. 
585, 588 (1947). Mere general language is not sufficient to 
permit an award of interest. “The consent necessary to 
waive the traditional immunity must be express, and it must 
be strictly construed.” United Statesv. N. Y. Rayon Import­
ing Co., supra, 329 U .S. at 659; United Statesv. Goltra, 312 
U.S. 203, 207 (1941).

Title VII makes no express provision for payment of 
interest on back pay awards to federal employees, and the 
courts of appeals uniformly have denied interest in such 
cases even though interest may be available to private



4

employees under Title VII. Blakew. Califano, 626 F. 2d 891 
(D.C. Cir. 1980); deWeeverv. United States, 618 F. 2d 685 
(10th Cir. 1980); Fischer v. Adams, 572 F. 2d 406, 411 (1st 
Cir. 1978); Richersonw. Jones, 551 F. 2d 918, 925 (3d Cir. 
1977).1 Even the district court in the instant case agreed that 
interest could not be awarded (Pet. App. 34a, citing Richer- 
son v. Jones, supra).

The court of appeals correctly held that the inflation 
factor adjustment that the district court awarded “is a dis­
guised interest award, which is not permitted under present 
law” (Pet. App. 8a). This ruling is consistent with Blake v. 
Califano, supra, which likewise held that an inflation factor 
is barred by sovereign immunity. 626 F. 2d at 895.2

‘For the same reason, interest has been denied on back pay awards 
against the government under the Back Pay Act, 5 U.S.C. 5596 (b)(1). 
Fitzgerald v. Staats, 578 F. 2d 435 (D.C. Cir.), cert, denied, 439 U.S. 
1004 (1978); Van Winkle v. McLucas, 537 F. 2d 246 (6th Cir. 1976), 
cert, denied, 429 U.S. 1093 (1977).

2Contrary to petitioner’s assertion (Pet. 13-20), there is no conflict 
between the decision in the instant case and any decision of this Court. 
The Court in Brownv. GSA, 425 U.S. 820 (1976), simplvheld that Title 
VII is the exclusive remedy for employment discrimination claims of 
federal employees. In Chandlery. Roudebush, 425 U.S. 840 (1976), the 
Court held that Congress intended the courts to hear Title VII claims of 
federal employees de novo. An “inflation factor” is certainly not man­
dated by Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975), as 
petitioner claims (Pet. 19-20). That case involved private parties, not the 
federal government, and simply held that the private plaintiffs were 
entitled to recover back pay even though they did not request that relief 
from the district court until five years after their complaint was origi­
nally filed. Similarly, Wicker v. Hoppock, 73 U.S. (6 Wall.) 94, 99 
(1867), relied upon by petitioner (Pet. 20), has nothing to do with the 
issues presented here. Only private parties were involved, and the Court 
merely held that the plaintiff was entitled to interest and costs as 
damages for breach of contract. Finally, to the extent that Morton v. 
Mancari, 417 U.S. 535, 547 (1974), is relevant, it supports the govern­
ment. Although the Court stated that “[i]n general, it may be said that 
the substantive anti-discrimination law * * * applie[s] to the Federal 
Government * * *” (emphasis added), the holding was that Title VII 
and its legislative history did not reveal a congressional intent to repeal 
the statutory preference for hiring Indians at the Bureau of Indian



5

Moreover, like the appellant in Blake v. Califano (see 626 
F. 2d at 895), petitioner has not cited a single case in which 
an inflation factor has been added to a back pay award even 
in an action against a private employer under Title VII, and 
we are not aware of any such case.3 Thus, further review on 
this issue is unwarranted.

2. Congress provided that petitioner is entitled to re­
cover attorney’s fees against the government under Title VII 
only if she has substantially prevailed. 42 U.S.C. 2000e- 
5(k), 2000e- 16(d); see Alyeska Pipeline Service Co. v. Wil­
derness Society, 421 U.S. 240 (1975). In this case, the court 
of appeals correctly held that petitioner is not entitled to an 
award of attorney’s fees for work done on a case that she 
lost.

Petitioner filed two different lawsuits challenging two 
separate personnel actions that incidentally occurred at 
approximately the same time. We do not dispute that peti­
tioner is entitled to attorney’s fees for all of counsel’s efforts 
reasonably related to prosecution of her suit challenging the 
denial of the EEO Specialist job, the cause of action in 
which she prevailed. Nor do we suggest that, because peti­
tioner did not prevail on every theory advanced in support

Affairs. Moreover, the present case concerns an issue of monetary 
relief, in which the federal government stands in a different position 
because of established principles of sovereign immunity, not a question 
of substantive Title VII law.

’Petitioner asserts that “the government has routinely * * * received[] 
adjustments to back pay to compensate for the effects of inflation * * *” 
(Pet. 19), citing UnitedStatesv. Lee Way Motor Freight, Inc., 625 F. 2d 
918, 940 (10th Cir. 1979), and EEOC v. Pacific Press Publishing Ass’n. 
482 F. Supp. 1291 (N.D. Cal. 1979). However, those cases involved 
relief against private defendants, not the government, and, in any event, 
the so-called “adjustments to back pay” were in fact “interest,” not 
inflation factors per se. Indeed, the court in EEOC v. Pacific Press, 
supra, specifically rejected the request for an “ ‘inflation factor’ based 
upon the Bureau of Labor Statistics Consumer Price Index * * *” (482 
F. Supp. at 1319), precisely the relief petitioner seeks here.



6

of her challenge to denial of the EEO position, the fee award 
necessarily should be reduced.4

We submit only that petitioner cannot be compensated 
for counsel’s unsuccessful efforts to establish that she was 
the victim of discrimination when she was included among 
108 other employees who were RIFed by the Navy and that 
she cannot avoid this result merely because she joined this 
cause of action with a successful challenge to a distinct 
personnel action by the Navy.

Petitioner states that her “suspicion that there was a 
relationship between the RIF and the promotion denial 
proved correct” (Pet. 32). That assertion is refuted by the 
unchallenged decision of the district court that petitioner 
“failed to demonstrate by a preponderance of the evidence 
that she was RIFed on the grounds of her sex (female) or her 
race (Black)” or “in retaliation for having opposed alleged 
discriminatory employment practices and / or having filed a 
complaint against the agency” (Pet. Appi 31a).

Thus, the court of appeals correctly implemented the 
congressional mandate that attorney’s fees be awarded 
against the government only in a case in which the com­
plainant has prevailed. Because petitioner lost her RIF case

4For example, the district court found that petitioner was denied the 
EEO position she sought on the basis of her sex and in retaliation for her 
EEO activities and her earlier successful administrative discrimination 
claim (Pet. App. 30a). The court did not find any discrimination on the 
basis of race, even though this was alleged in petitioner’s complaint (id. 
at 13a). We do not contend that counsel’s compensable time must be 
reduced for that reason. Moreover, to the extent that there were issues 
of law and fact common to petitioner’s distinct causes of action, peti­
tioner may well be able to recover attorney’s fees for the time her lawyer 
devoted to these issues in connection with the action relating to the EEO 
Specialist position, on which she prevailed. Only time spent on matters 
relating solely to the RIF case should be uncompensated.



7

against the government, the award of fees for counsel’s 
work related to it has not been authorized by Congress.5

CONCLUSION
The petition for a writ of certiorari should be denied. 
Respectfully submitted.

W ade H. M c C ree, J r .
Solicitor General

February 1981

5Because the present case involved challenges to distinct personnel 
actions by the Navy, it is unlike Northcrossv. Board o f Education, 611 
F. 2d 624 (6th Cir. 1979), upon which petitioner relies (Pet. 35-36) in 
suggesting a conflict among the circuits. As the court below observed 
(Pet. App. 1 la), “Northeross was a single case and the appellate court 
correctly held it to be improper to cull out and refuse a fee award for 
parts of the total issues raised, which were not persuasive in the reaching 
of the final decision.”

D O J-1981-02