New York Gaslight Club, Inc. v. Carey Brief Amicus Curiae

    In  the

& u p r m ?  Glm irt o f tlj? S n itri* S ta te s
O ctober T e r m , 1979 

No. 79-192

N e w  Y ork G aslight C lu b, In c. and 
Jo h n  A nderson, Manager of the 
N e w  Y ork G aslight C lub, In c .,

Petitioners,
— against—

Ms. Cidni C arey,
Respondent.

ON W R IT  OF CERTIORARI TO TH E  U N ITED STATES 

COURT OF APPEALS FOR TH E  SECOND CIRCUIT

BRIEF OF THE NAACP LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC., AS 

AMICUS CURIAE

Jack G reenberg 
James M. N abrit, III 
C harles Stephen R alston 
B ill L a n n  L ee 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Attorneys for Amicus Curiae



I N D E X

Interest of the Amicus Curiae ................  1

Summary of Argument .........................  3

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

I. TITLE VII OF THE CIVIL RIGHTS
ACT OF 1964 AUTHORIZES THE AWARD 
OF COUNSEL FEES FOR WORK DONE 
DURING ADMINISTRATIVE
PROCEEDINGS ........................  4

II. THERE ARE NO VALID REASONS NOT 
TO AWARD FEES FOR STATE
ADMINISTRATIVE PROCEEDINGS .......... 13

CONCLUSION ..................................  16

Page

1



Page

Cases:

Albemarle Paper Co. v. Moody, 422 U.S.
405 (1975) .........................  2

Alexander v. Gardner-Denver Co., 415
U.S. 36 (1974) .....................  4,5,12

Barela v. United Nuclear Corp., 462
F.2d 149 (10th Cir. 1972) ..........  6

Bradley v. School Board of the City of
Richmond, 416 U.S. 696 (1974) ......  3

Brandenburgh v. Thompson, 494 F.2d
885 (9th Cir. 1974) ................  15

Christiansburg Garment Co. v. Equal 
Employment Opportunity
Comm., 434 U.S. 412 (1978) .........  3,12

Culpepper v. Reynolds Metals Co., 421
F. 2d 888 (5th Cir. 1970) ...........  9

EEOC v. Salvation Army, 3 EPD 1 8090
(N.D. Ga. 1970) ....................  6

Fairley v. Patterson, 493 F .2d 598
(5th Cir. 1974) ....................  15

Fischer v. Adams, 572 F.2d 406 (1st
Cir. 1978) .........................  9,14

Fitzpatrick v. Bitzer, 427 U.S. 445
(1976) .............................  13

Hairston v. R & R Apartments, 510 F.2d
1090 (7th Cir. 1975) ...............  15

- ii -



Page

Hutto v. Finney, 437 U.S 678
(1978) ............................ . 3,13,16

Incarcerated Men of Allen County v.
Fair, 507 F .2d 281 (6th Cir.
1974) ............................. 15

Johnson v. United States, 554 F .2d 632
(4th Cir. 1977) ................... 9

Love v. Pullman Co., 404 U.S. 522
(1972) ............................ 7

McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) ............... 2

Newman v. Piggie Park Enterprises,
390 U.S. 400 (1968) ............... .. 3,5,15

Parham v. Southwestern Bell Telephone
Co., 433 F .2d 421 (8th Cir. 1970) ., 9

Parker v. Califano, 561 F .2d 320
(D.C. Cir. 1977) ................. 9,14

Red School House, Inc. v. Office of
Economic Opportunity, 386 F. Supp. 
1177 (D. Minn. 1974) ............. 9

Reynolds v. Coomey, 567 F.2d 1166
(1st Cir. 1978) .................. 14

Rodriquez v. Taylor, 569 F .2d 1231
(3rd Cir. 1977) .................. 14

Rutherford v. American Bank of 
Commerce, 11 EPD 1 10,829 
(D.N.M. 1976) .................... 6

Smith v. Califano, 446 F. Supp. 530
(D.D.C. 1978) .................... 10

-  i n  -



Page

Sullivan v. Little Hunting Park, 396
U.S 229 (1969) .....................  13

Tillman v. Wheaton-Haven Recreation 
Association, 517 F.2d 1411
(4th Cir. 1975) ....................  14

Torres v. Sachs, 538 F .2d 10 (2d
Cir. 1976) .......................... 14

Statutes

5 U. S.C. § 551, et seq.....................  8

5 U.S.C. § 6322 .......................  8

5 U.S.C. § 7701(g) ....................... 10

5 U.S.C. § 8125 ........................  8

18 U.S.C. § 205 ...........................  8

33 U.S.C. § 923   8

33 U.S.C. § 924 ...........................  8

33 U.S.C. § 927 ...........................  8

33 U.S.C. § 928 ...........................  8

42 U.S.C. § 2000a-3(b) .................... 3

42 U.S.C. § 2000e-3(a) ....................  6

42 U.S.C. § 2000e-5 ......................  7

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

42 U.S.C. § 2000e-8........   7

IV



Page

42 U.S.C. § 2000e-12(a) ..................  8

42 U.S.C. § 2000e-12(b) ..................  7

Other Authorities

H. Report No. 94-1558 (94th Cong.,
2d Sess. ) ..........................  15

Sen. Report No. 95-969 (95th Cong.,
2d Sess. ) ..........................  10

Subcom. on Labor and Public Welfare,
Legislative History of The Equal
Employment Opportunity Act of
1972 (Comm. Print 1972) ...........  7

v



IN THE

SUPREME COURT OF THE UNITED STATES 

October Term, 1979 

No. 79-192

NEW YORK GASLIGHT CLUB, INC. and 
JOHN ANDERSON, Manager of the 
NEW YORK GASLIGHT CLUB, INC.,

Petitioners,

-against- 

MS. CIDNI CAREY,

Respondent.

On Writ of Certiorari to the United 
States Court of Appeals for the 

Second Circuit

BRIEF OF THE NAACP LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC., AS 

AMICUS CURIAE

Interest of the Amicus Curiae*

The NAACP Legal Defense and Educational Fund, 
Inc., is a non-profit corporation, incorporated 
under the laws of the State of New York in 1940.

*/ Letters of consent to the filing of this 
Brief Amicus Curiae are on file with the Clerk of
the Court.



2

It was formed to assist Blacks to secure their 
constitutional rights by the prosecution of 
lawsuits. Its charter declares that its purposes 
include rendering legal aid gratuitously to 
Blacks suffering injustice by reason of race who 
are unable, on account of poverty, to employ legal 
counsel on their own behalf. The charter was 
approved by a New York Court, authorizing the 
organization to serve as a legal aid society. 
The NAACP Legal Defense and Educational Fund, 
Inc, (LDF), is independent of other organiza-

★ ★ I
tions-- and is supported by contributions from
the public. For many years its attorneys have 
represented parties and has participated as 
amicus cur iae in the federal courts in cases 
involving many facets of the law.

Attorneys employed by the Legal Defense 
Fund have represented plaintiffs in many cases 
arising under Title VII of the Civil Rights 
Act of 1964, e .g ., McDonnell Douglas Corp. v . 
Green, 411 U.S. 792 (1973); Albemarle Paper Co.
v. Moody, 422 U.S 405 (1975). Amicus has also 
participated in many of the leading cases involv-

**/ Thus, the Legal Defense Fund has had no 
connection with the NAACP, which supplied the 
counsel for respondent in this case, for more 
than twenty years.



3

ing attorneys' fees questions, both as counsel, 
e. g. , Newman v. Piggie Park Enterprises, 390 U.S. 
400 (1968); Bradley v. School Board of the City of 
Richmond, 416 U.S 696 (1974); Hutto v. Finney, 437 
U.S 678 (1978); and as amicus curiae, e.g.,
Chr i s t i ans bur g Garment Co. v. Equal Employ­
ment Opportunity Comm., 434 U.S. 412 (1978).
Therefore, the Fund has a direct interest in 
the resolution of a number of the issues raised in 
the present case.

SUMMARY OF ARGUMENT

I .

By its clear language, Title VII authorizes 
the award of counsel fees for work done in the 
administrative proceedings that must be exhausted 
as a precondition to filing an action in federal 
court. The statute makes no distinction between 
state and federal agency proceedings, and there is 
no basis in law or policy for making any.

II.
The Tenth Amendment is no bar to Congress' 

authorizing fees for work done in state adminis­
trative proceedings. The district court's reasons 
for denying fees herein were insufficient to 
overcome the presumption in favor of an award.



- 4 - 

ARGUMENT

I.

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 
AUTHORIZES THE AWARD OF COUNSEL FEES FOR 
WORK DONE DURING ADMINISTRATIVE PROCEEDINGS

Amicus urges that the language of 42 U.S.C. 
§ 2000e-5(k) that counsel fees may be awarded 
to the prevailing party in "any action or proceed- 
ing under this subchapter" (emphasis added), 
compels the conclusion- that fees may be awarded 
for work done during administrative proceedings as 
well as judicial actions. When § 2000e-5(k) was 
originally adopted in the 1964 Civil Rights Act, 
the § 2000e-5 enforcement scheme relied upon 
both administrative and judicial proceedings. As 
this Court noted in Alexander v. Gardner-Denver, 
415 U.S. 36, 47 (1974):

[Ljegislative 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., Con­
gress indicated that it considered the policy 
against discrimination to be the 'highest 
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 agen­
cies); 42 U.S.C. § 2000e-5(f) (1970 ed, 
Supp. II) (federal courts).



5

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 subchapter." (Emphasis added.) 
While Title VII's enforcement scheme is both 
administrative and judicial, Title II's enforce­
ment scheme is strictly court action, see Newman 
v. Piggie Park Enterprises, 390 U.S 400 (1968).
Thus, the specific use of the broadly inclusive 
phrase "action or proceeding" in § 2000e-5(k) 
indicates a deliberate decision by Congress to 
make administrative proceedings subject to attor­
ney's fees and costs awards. Similarly, use of 
the terms "under this title" ("under this sub­
chapter" in the United States Code) rather than 
narrower terms limiting applicability to the 
judicial action provisions indicate that § 2000e- 
5(k) was intended to apply to the administrative 
and judicial proceedings in § 2000e-5 enumerated 
by this Court in Alexander v. Gardner-Denver Co. ,
supra.

Other sections of Title VII, together with 
their legislative history, make it clear through­
out the statute that the word "proceeding" in­
cludes administrative, both State and federal,



- 6 -

as well as judicial proceedings. Thus, § 704, 42 
U.S.C. § 2000e-3(a), proscribes as "an unlawful 
employment practice" discrimination by an em­
ployer, employment agency or labor organization 
against an employee, inter alia, "because he has 
made a charge, testified, assisted, or participat­
ed in any manner in an investigation, proceeding, 
or hearing under this title" (emphasis added). 
Statutory language, legislative history, agency 
construction and case law, all indicate that 
"proceeding," like the preceding term "investiga­
tion" and following term "hearing," refers to EEOC

a- 17 proceedings.—
Congress settled the meaning of "proceeding" 

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

1 / Rutherford v. American Bank of Commerce, 11 
EPD 1 10,829 at p. 7488-7489 (D.N.M. 1976), see 
also, EEOC v. Salvation Army, 3 EPD 1 8090 (N.D. 
Ga. 1970); Barela v. United Nuclear Corp., 462 
F.2d 149 (10th Cir. 1972), affirming, 317 F. Supp. 
1217 (D.N.M. 1970).



7

proceedings" (emphasis added).—  Similarly,
§ 716(b), 42 U.S.C. 5 2000e-12(b), provides that 
"[i]n any action or proceeding based on any 
alleged unlawful employment practice," no person 
shall be subject to liability or punishment under 
certain good faith defenses that "[s]uch a de­
fense, if established, shall be a bar to the 
action or proceeding," notwithstanding certain 
judical modifications or rescissions (emphasis 
added). Nothing precludes § 716(b)'s application 
to EEOC or state deferral agency proceedings.

Sections 706(b), (d) and (e), 42 U.S.C.
§ 2000e-5(b), (d) and (e), in the 1964 version of 
the Act and § 706(b), (c) and (e), and § 709(d), 42 
U.S.C. § 2000e-5(b), (c), (e) and 8(d), as amended 
in 1972, specifically refer to state or local 
deferral proceedings as, inter alia, "proceed­
ings," "state or local proceedings," or "proce­
dure [s]." There simply is no question that such

. . .  . 3 /proceedings include administrative proceedings.—

2 /

2/ Subcom. on Labor and Public Welfare, Legisla­
tive History of the Equal Employment Opportunity 
Act of 1972 (Comm. Print 1972) at 1849.

3J See, e.g ., Love v. Pullman Co. , 404 U.S 522
(1972).



- 8 -

Finally, in the United States Code the term 
"proceeding" commonly includes administrative 
proceedings. See, e .g . , the Administrative 
Procedure Act, 5 U.S.C. § 551, et seq- Indeed, 
Congress recently amended 5 U.S.C § 6322 concern­
ing leave for federal employees for jury or 
witness service in a "judicial proceeding, 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 proceed­
ing, including any condemnation, preliminary, 
informational, or other proceeding of a judicial 
nature, but does not include an administrative 
proceeding" (emphasis added).—

4/ The APA is cited in Title VII at § 716(a), 42 
U.S.C. § 2000e-12(a).

5/ 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 the term "proceedings" refers to administra­
tive proceedings). Indeed, 18 U.S.C § 205 s 
use of "proceedings", which regulates conflicts of 
interest by federal officers or employees, has 
been specifically construed to apply to "an 
administrative grievance proceeding, 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'



9

Were there doubt about the scope of "proceed­
ings," "Title VII . . . is to be accorded a 
liberal construction in order to carry out the 
purpose of Congress to eliminate the inconveni­
ence, unfairness and humiliation of racial dis­
crimination," Parham v. Southwestern Bell Tele­
phone Co. , 433 F .2d 421, 425 (8th Cir. 1970); 
Culpepper v. Reynolds Metals Co., 421 F .2d 888, 
891 (5th Cir. 1970).

In cases involving federal employees, the 
lower courts have correctly applied the princi­
ples set out above and have held that the term 
"proceeding" includes the administrative pro­
ceedings that must be exahusted as a condition 
to filing an action in federal Court. Parker 
v. Califano, 561 F . 2d 320 (D.C. Cir. 1 977);
Johnson v. United States, 554 F.2d 632 (4th Cir. 
1977); Fischer v. Adams, 572 F.2d 406 (1st Cir.

6/ cont'd.

Compensation Board of the Department of Labor, 
compare, Red School House, Inc, v. Office of 
Economic Opportunity, 386 F. Supp. 1177, 1195-1197 
(D. Minn. 1974) (0E0 regulations at 45 C.F.R. 
§ 1067.2-5 provide for attorney's fees).

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



10 -

1978). Therefore, counsel fees may be awarded fon 
work done during the administrative processing of- 
federal EEO complaints both by the courts and by, 
the agencies responsible for enforcement of Title 
VII rights. Smith v. Califano, 446 F. Supp. 530 
(D.D. C. 1978).

Congress ratified this interpretation of § 
2000e-5(k) when it passed the Civil Service Reform 
Act of 1978, in 5 U.S.C § 7701(g)(2). That
section specifically provides that in administra­
tive appeals where Title VII or other discrimina-- 
tion claims are raised and the complainant pre­
vails thereon, counsel fees are to be awardedo 
pursuant to Title VII standards. The Senate? 
report on the bill notes that

....statutory law already provides for the 
award of attorney fees whenever a party in a 
discrimination suit prevails. The section 
preserves the right of the Board to award; 
attorney fees ... whenever it finds the- 
employee's rights under the laws prohibiting* 
discrimination have been violated. Sen. 
Report No. 95-969 (95th Cong. 2d Sess.) p. 
61. (Emphasis added). 6/

6/ As originally introduced, both the Senate and 
House versions of the Civil Service Reform Act of 
1978 only provided for counsel fees under a 
restrictive standard in limited instances where a 
federal employee won an appeal from, e .g ., an 
agency adverse action. See, 5 U.S.C. § 7701 
(g)(1). At hearings it was pointed out that the 
statute could be interpreted as overruling the



11

Petitioners in the present case concede the 
correctness of the above decisions holding 
that counsel fees may be awarded for administra­
tive proceedings in Federal Title VII cases 
(Brief for Petitioners at p. 6). There is, how­
ever, no basis for distinguishing cases involv­
ing private or state and local governmental em­
ployer cases, or proceedings before state adminis­
trative agencies or the Equal Employment Opportun­
ity Commission.—  Nothing in the language or the 
legislative history of § 2000e-5(k) suggests any 
intent to make such a differentiation between the 
various administrative proceedings that must be 
exhausted as a precondition to filing a Title VII 
action in federal court. Indeed, to the extent

6/ cont'd.

holding in Smith v. Califano, supra, that agencies 
could award fees in discrimination administrative 
proceedings. Thus, § 7701(g)(2) was added to make 
it clear that the Smith ruling would be preserved.

7/ Under the President's Reorganization Plan 
No. 1 of 1978, jurisdiction over federal employee 
EEO complaints was transferrred to the EEOC. 
Thus, all employees covered by Title VII now must 
go to the same federal agency to exhaust adminis­
trative remedies.



12

the statute speaks, it mandates that the United 
States be liable for costs, including attorneys' 
fees, "the same" as any other party. See, Chris- 
tiansburg Garment Co. v. EEOC, 434 U.S. 417, 422, 
n.20 (1978).

Moreover, the policy considerations are the 
same whether the employer is a federal, state, 
or local governmental agency or a private com­
pany. Congress clearly intended to encourage, in 
all cases, the administrative resolution and 
conciliation of complaints. See, Alexander v. 
Gardner Denver Co., 415 U.S 36 (1974). Full
resort to the administrative process would be 
discouraged, however, if counsel fees could be 
obtained only for work done in court or in the 
EEOC. Obviously, counsel can have an important 
role in state administrative processes, both in 
attempting to negotiate settlements and in rep­
resenting clients at hearings. If such efforts 
cannot be compensated through an award of fees, 
an attorney would have little choice but to advise 
a client to short-cut state processes. Com­
plainants would therefore resort to the already 
unnecessarily over-burdened EEOC and federal 
courts, a result that would undermine Congress' 
purpose in requiring that complainants go to state 
or local agencies in the first place.



13

II.

THERE ARE NO VALID REASONS NOT TO AWARD
FEES FOR STATE ADMINISTRATIVE PROCEEDINGS

Amicus urges that none of the reasons advanc­
ed by petitioners in their Brief as to why 
counsel fees may not be awarded for work done in 
state or local agency proceedings have any sub­
stance. Petitioners first argue that in some way 
the Tenth Amendment is a bar to Congress' author­
izing the payment of counsel fees by private 
defendants to compensate for work done in a state 
administrative agency. This Court, however, has 
already held that Congress has the authority under 
Section 5 of the Fourteenth Amendment to override 
the Eleventh Amendment and give the federal courts 
the power to award counsel fees against a state 
itself. Fitzpatrick v. Bitzer, 427 U.S. 445 
(1976); Hutto v. Finney, 437 U.S. 229 (1969). 
Moreover, it has also held that a state court may 
be required to entertain a federal cause of action 
to vindicate the civil rights established by 42 
U.S.C. §§ 1981 and 1982. Sul 1ivan v . Little
Hunting Park, 396 U.S. 229 (1969). Thus, there 
can be no question of Congress' power under the 
Fourteenth Amendment to permit the much less in-



14

trusive remedy of fees paid by private parties 
in state proceedings.

In the second part of their Brief petitioners 
discuss issues which, Amicus urges, are not fairly 
encompased by the questions presented in their

• T  _petition for a writ of certiorari. In particu 
lar, the question of whether attorneys' fees could 
have been denied simply because counsel were em 
ployed by a public interest law organization was 
not decided by either of the courts below, nor 
raised in the petition for a writ of cert i 
orari.- With regard to the general proposi-

8/ Conversely, the Brief does not discuss all of 
the questions that are raised by the petition. In 
particular, it does not discuss at all the third 
question, whether the respondent was the prevail­
ing party within the meaning of the Act. We would 
urge that she clearly was since she obtained, 
administratively, full relief on the merits of her 
discrimination claim after she had filed her 
action in federal court. That she no longer had 
to pursue her claims in court in no way changes 
the fact that she prevailed on her federal 
Title VII claim. See, Fischer v. Adams, 572 F .2d 
406 (1st Cir. 1978); Parker v. Califano, 561 
F. 2d 320 (D.C. Cir. 1977

9/ On the merits of the issue, it is clear that 
the employment status of counsel is irrelevant to 
whether fees should be awarded. Reynolds v . 
Coomey, 567 F . 2d 1166 (1st Cir. 1978); Torres v . 
Sachs, 538 F.2d 10 (2d Cir. 1976); Rodriquez v . 
Taylor, 569 F .2d 1231 (3rd Cir. 1977); Tillman v .



15

tion regarding the reviewability of the district 
court's exercise of its discretion in refusing to 
award fees, it has been clear ever since Newman 
v. Piggie Park Enterprises, 390 U.S 400 (1968), 
that such discretion must be guided by proper 
legal standards. Thus, fees must ordinarily be

9 / c on t' d .

Wheaton-Haven Recreation Association, 517 F.2d 
1411 (4th Cir. 1975); Fairley v. Patterson, 493 
F .2d 598 (5th Cir. 1974); Incarcerated Men of 
Allen County v. Fair, 507 F . 2d 281 (6th Cir. 
1974); Hairston v. R & R Apartments, 510 F.2d 1090 
(7th Cir. 1975); Brandenburgh vT Thompson, 494 
F.2d 885 (9th Cir. 1974). Congress endorsed these 
decisions when it passed the Civil Rights Attor­
ney's Fee Act of 1976. The House report stated:

Similarly, a prevailing party is entitled 
to counsel fees even if represented by an 
organization or if the party is itself an 
organizat ion.

H. Rep. No. 94-1558 (94th Cong. 2d Sess.), p. 
8, n.16, citing Torres v. Sachs, supra, Fairley 
v. Patterson, supra and Incarcerated Men of Allen 
County v. Fair, supra. Petitioners are simply 
wrong in their assertion that awards of counsel 
fees are unnecessary to encourage such organiza­
tions to take cases. To the contrary, a growing 
and substantial portion of the income of public 
interest law organizations, including that of 
amicus, comes from counsel fee awards. If fees 
were not available, the litigation programs of 
such groups would have to be sharply curtailed.



16

awarded 
none of 
F inney,

except 
which 
supra.

under exceptional 
are present here.

c ircums tances, 
See, Hutto v.

CONCLUSION

For the foregoing reasons, the decision of 
the Court of Appeals should be affirmed.

Respectfully submitted,

JACK GREENBERG 
JAMES M. NABRLT, III 
CHARLES STEPHEN RALSTON 
BILL LANN LEE 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Attorneys for Amicus Curiae



MEILEN PRESS INC — N. Y. C. 219