Lee v. Southern Home Sites Corporation Brief for Appellant

    UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

No. 30738

I

JOHNNIE RAY LEE,
Appellant, 

v.
SOUTHERN HOME SITES CORP., a corporation,

Appellee.

On Appeal from the United States District Court 
For the Southern District of Mississippi

BRIEF FOR APPELLANT * 10

JACK GREENBERG 
JEFFRY A. MINTZ

10 Columbus Circle 
New York, New York 10019

REUBEN V. ANDERSON 
FRED L. BANKS, JR.

538 1/2 North Parish Street 
Jackson, Mississippi

WILLIAM BENNETT TURNER 
1095 Market Street 
San Francisco, California 94103

Attorneys for Appellant



TABLE OF CONTENTS

TABLE OF AUTHORITIES iii

ISSUE PRESENTED 1

STATEMENT OF THE CASE 2

STATEMENT OF FACTS 5

ARGUMENT
I. The History and the Purpose of Section 

1982 Demonstrate that Attorneys' Fees 
Should Be Awarded to Plaintiffs Who
Successfully Invoke Its Provisions. 8

II. The Explicit Provision for Attorneys'
Fees in the 1968 Fair Housing Act, A 
Procedural Aspect of the Statute,
Should Be Applied to This Case. 22.

CONCLUSIONS 28

ii



TABLE OF AUTHORITIES

CASES ?-a9e

Bradley v. School Board of the City of 
Richmond, 345 F.2d 310 (4th Cir. 1965) 17

Dolgow v. Anderson, 43 F.R.D. 472, 
(E.D. N.Y. 1968) 22

Eisen v. Carlisle S Jacquelin, 391 F.2d 
555 (2d Cir. 1968) 22

Gilbert v. Hoisting & Portable Engineers, 
237 Or. 139, 390 P.2d 320 (1964) 21

Hamm v. City of Rock Hill, 
379 U.S. 306 (1964) 25

Hunter v. Erickson, 393 U.S. 385 (1969) 26
Jenkins v. United Gas Corp., 

400 F.2d 28 (5th; Cir. 1968) • 16
Jones v. Alfred H. Mayer Co., 

392 U.S. 409 (1968) 4,7,8,9,10,11,
12,13,17,18,23

Kemp v. Beasley, 352 F.2d 14 
(8th Cir. 1965) 17

Lee v. Southern Home Sites Corp., • 
429 F.2d 290 (5th Cir. 1970) 2,4,11

Miller v. Amusement Enterprises, Inc. 
426 F .2d 534 (5th Cir. 1970) 14,15,22,26

Mills v. Electric Autolite Co., 
396 U.S. 375 (1970) 20,22

Newbern v. Lake Lorelei, Inc., 308 F .Supp. 
407; 1 Race Rel. L. Survey 185 
(S.D. Ohio, 1968, 1969) 19

n r



Page

Newman v. Piggie Park Enterprises, Inc.,
390 U.S. 400 (1968) 11,15,16,18,

20,24,25
Oatis v. Crown Zellerbach Corp.,

398 F .2d 496 (5th Cir. 1968) 16
Pettway v. American Cast Iron Pipe Co.,

411 F .2d 998 (5th Cir. 1969) 16
Pina v. Homsi, 1 Race Rel. L. Survey 18

(D. Mass. July 10, 1969) 19
Rolax v. Atlantic Coast Line-R.R.,

186 F.2d 473 (4th Cir. 1951) 21
Sanders v. Russell, 5th Cir. 1968,

401 F .2d 241 11
Smoot v. Fox, 353 F.2d 830

(6th Cir. 1965) 17
Sprague v. Ticonic National Bank,

307 U.S. 161 (1939) 20
Sullivan v. Little Hunting Park, Inc.,

396 U.S. 229, 239 (1969) 20,27
Terry v. Elmwood Cemetery,

307 F.Supp. 369 (1969) 18,19
Thorpe v. Housing Authority of the

City of Durham, 393 U.S. 268 (1969) 26
United States v. Price,

383 U.S. 787 (1966) 11
United States v. Schooner Peggy,

1 Cranch 103 (1801) 26
Vandenbark v. Owens Illinois Co.,

311 U.S. 538 (1941) • 26

i . v



Page

Vaughn v. Atkinson, 369 U.S. 567 (1962) 20
Williams v. Kimbrough, 295 F.Supp. 578, 

aff'd, 415 F.2d 875 (5th Cir. 1969), 
cert, denied, 396 U.S. 1061 (1970) 17

Ziffrin, Inc. v. United States,
318 U.S. 73 (1943) 26

Brown v. City of Meridian, 356 F.2d 602
(5th Cir. 1966) 27

STATUTES, RULES AND REGULATIONS

Civil Right_s Act of 1866 , Act of 
April 7, 1866, c. 31, Section 1,
14 Stat. 27, re-enacted by 
Section 18 of the Enforcement Act 
of 1870, Act of May 31, 1870, c. 114,
Section 18, 16 Stat. 140, 144 
codified in Sections 1977 and 1978
of the Revised Statutes of 1874. 9,10,11

18 U . S . c. Section 241 11
18 U.S.C. Section 242 11
42 u. s. c. Section 1981 2
42 u.s,c. Section 1982 1,2,7,8,9,11,

' 12,15,16,20,21,23
42 U.S.C. Section 1988 27
42 U.S.C. Section 2000a-2 25
42 U.S.C. Section 2 0 0 0 a - 3 (b) 8,14,25
42 U.S.C. Section 2000a.-5 (a) 15
42 U.S.C. Section 2000b et seq. 18

I v



~~~ Page

42 U.S.C. Section 2000c et seq. 18
42 U.S.C. Section 2000e-5(k) 8,25
42 U.S.C. Sections 3601 et seq. 26
4 2 U.S.-C. Section 3603 23
42 .U.S.C. Section 3604 (a) , (b) , (c) & (d) 22
42 U.S.C. Section 3612(b) 8
42 U.S.C. Section 3612 (c) 18,24,25
Fed. R. Civ. P. 23 (b) (2) 2
Fed. R. Civ r Pi" 30(g), 37(a), 

37(c) , 54 (d) and 56 (g) 25
Fair Housing Act of 1968

Pub. L. 90-284; 82 Stat. 82 18, 23,24

OTHER•AUTHORITIES

Cong. Globe, 39th Cong., 1st Sess. 474 10
114 Cong. Rec. S2308 ' 24
Davidson & Turner, Fair Housing and 

Federal Law, 1 ABA Human Rights 36 
(1970) ’ 15,23

Gulfport-Biloxi Daily Herald,
June 18, 1968, p. 1 12

Jackson Clarion-Ledger,
June 18, 1968, p. 1 12

Mobile Press, June 18, 1968, p. 3 12
Mobile Press Register,

June 23, 1958, p. 1 12

vi



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

__________________________  V.

NO. 30738

JOHNNIE RAY LEE,
Appellant, 

v.
SOUTHERN HOME STTESCORP., a corporation,

Appellee.

On Appeal from the United States District Court 
For the .'Southern District of Mississippi

___ -BRIEF F.OR APPELLANT

ISSUE PRESENTED

Whether, in a class action under 42 U.S.C. Section 
1982 brought by an individual acting as a "private attorney 
general" to eliminate systematic racial discrimination 
practiced by a real estate developer, the court should award 
reasonable attorneys’ fees to the prevailing plaintiff.



STATEMENT OF THE CASE

This is the second appeal to this Court in the 
instant case. On the prior appeal (No. 28167), this Court 
remanded for findings of fact to justify the District Court's 
denial of attorneys' fees. Lee v. Southern Home Sites Corp., 
429 F .2d 290 (5th Cir. 1970).

This case was brought pursuant to 42 U.S.C. Sections
1981 and 1982 and the Thirteenth Amendment to challenge
systematic racial discrimination practiced by appellee Southern
Home Sites Corp., a real estate developer. The action was
brought by appellant Johnnie Ray Lee on his own behalf and,
pursuant to Fed. R. Civ. P. 23(b) (2), as a class action on
behalf of similarly situated black citizens who were
discriminated against by Southern Home Sites. The complaint

1/(1.4-9) alleged that appellant had been excluded from buying 
a lot in the Southern Home Sites resort development because 
of his race, and that appellee's refusal to deal with appellant 
was pursuant to a widespread policy and practice of 
discrimination against black citizens. Plaintiff-appellant

1/ Nuiribered references preceded by "I" are to pages of the 
printed Appendix on the prior appeal, No. 28,167. 
References preceded by "II" are to pages of the printed 
Appendix on the present appeal, No. 30,738. On Nov. 4, 
1970 , this Court granted appellant's motion to limit the 
reproduction of the record on this appeal to documents 
filed since the printing of the Appendix on the prior 
appeal. Additional copies of the prior Appendix have 
been filed with the Court together with copies of the 
preseiiL Appendix.

-2-



sought injunctive relief, a declaratory judgment, compensatory 
and punitive damages and counsel fees.■

The case was tried without a jury on March 18, 1969. 
On April 7, 1969, the court below (Nixon, J.) rendered an 
opinion (1.42-45) finding that Southern Home Sites had engaged 
in racially discriminatory conduct in violation of 42 U.S.C. 
Section 1982. On May 14, 1969, the District Court entered 
judgment (1.54-56) generally enjoining appellee from 
discriminating against black people seeking to purchase lots 
in appellee's development, directing Southern Home Sites to 
offer appellant Lee a lot and defining the class on whose 
behalf the action was maintained. The judgment denied 
appellant's claims for money damages and counsel fees. The 
court below retained jurisdiction until the judgment would 
be fully complied with.

Appellant then sought an order requiring Southern 
Home Sites to notify members of the class of their rights 
under the court's judgment and to offer lots to members of 
the class on the same terms as lots were to be offered to 
appellant and as lots had been conveyed to white persons 
(1.60-64). On Augusu 6, 1969, the court below denied this 
relief. Appellant then appealed to this Court from the
judgment of May 14, 1969, and the order of August 6, 1969.

/

-3-



T'

On July 13, 1970, this Court (Coleman, Goldberg 
and Morgan, JJ.) upheld the District Court's denial of money 
damages but remanded with instructions to require Southern 
Home Sites to notify class members of their rights under the 
judgment, including their right to purchase lots on the same 
terms as appellant. This Court also directed the District 
Court to make findings of fact "sufficient to enable this 
court to review the denial of attorneys' fees." Lee v.
Southern Home Sites Corp.., 4 29- F. 2d 296 (5th Cir. 19 70).

On July 20, 1970, the court below ordered the clerk 
of the court to publish notices in two Mississippi newspapers 
informing class members of their rights under the judgment 
(11.5-6). On August 11, 1970, the court below made findings 
of fact regarding its denial of attorneys' fees (II.6-9).
The court found that appellant had failed to prove that 
Southern Home Sites had knowledge or notice of the Supreme 
Court's decision in Jones v. Alfred H. Mayer Co., 392 U.S.
409 (1968) and that, therefore, appellee's discriminatory
conduct was not "malicious, oppressive or so 'unreasonable 
and obdurately obstinate' as to warrant an award for attorneys' 
fees" (11.8). The District Court thereupon entered a 
supplemental decree (August 13, 1970) denying an award of 
attorneys' fees (II.9). This appeal followed.

-4-



STATEMENT OF FACTS

Appellant Johnnie Ray Lee is a black citizen who
resides in Columbia, Mississippi. Appellee Southern Home

/
Sites Corp. is a Mississippi corporation which is in the 
business of developing resort areas and selling lots or 
interests in real estate (1.6,17). It owns and operates a 
development called Ocean Beach Estates, located near Ocean 
Springs and Pascagoula, Mississippi (Id.).

The development at Ocean Beach Estates contains a 
total of 1,653 lots (1.27,33,43). As of the time of trial, 
1,206 of the lots had been sold (Id.). Thus, more than 400 
lots remained available (1.96-97). At that time, appellee 
was holding Jots off- the market, because developments on 
adjacent property were causing Southern Home Sites lots to 
increase in value (1.114,43).

On July 30, 1968, appellee sent a form letter to 
appellant offering him a lot stated to be worth $600 for 
$49.50 in cash (1.6,17,42). In 1968 alone, Southern Home - 
Sites sent probably more than a thousand such letters to 
persons throughout the State of Mississippi and outside 
Mississippi (1.86-8.7). The letters were sent as a promotional 
venture, with the idea that persons sold lots at bargain
prices would tell their friends and thus increase appellee's

l

-5-



sales (1.113,43). At the time of trial, Southern Home Sites 
had conveyed 119 lots on the $49.50 terms set forth in the 
letter to appellant (1.93,25,31-32,27,33).

Appellee's agents collected names for the promotional
mailing list at boat shows, county fairs, etc. (1.87,32). In 
mailing the letters containing the promotional offers, appellee 
made no effort whatever to ascertain the race of persons to 
whom the letters were sent (1.26,32). Thus, thousands of 
letters were sent, indiscriminately to both black and white 
persons.

The letters sent to citizens throughout the area 
stated baldly that in order for the recipient to take advantage 
of the offer, "you must be a member of the white race" (1.42, 
6,17). Although Southern Home Site's pretended to justify this 
condition on the ground that "only the white race" would help 
appellee advertise its development (1.32), white purchasers 
of lots pursuant to the promotional scheme were never asked 
to advertise and no such condition was ever demanded by 
Southern Home Sites (1.104-105,108).

Shortly after receiving his letter from appellee, 
Johnnie Ray Lee traveled to appellee's office at Ocean Springs 
(1.42-43,6-7,12,13-14,18). He took with him the letter and
$50 in cash and was ready, willing and able to purchase a lot

/ ’

-6-



on the terras set forth in the letter, except for the racial 
limitation (1.43,74,76). However, at the Southern Home Sites 
office he was bluntly told by appellee's agent that the 
development "wasn't for Negroes," and the agent refused to 
do business with him (1.75,82/43). At Ocean Beach Estates, 
black people were not permitted to buy lots (1.26,33). Not 
only was Ocean Beach Estates maintained as a lily-white 
preserve, but appellee planned a separate, all-black 
development., and^kept a waiting list of black applicants for 
that development (1.75,76,82; Plaintiff's Exhs. 2 and 3).

On October 15, 1968, appellant Lee brought this 
class action in the court below. He obtained a broad 
injunction prohibiting Southern Home Sites from discriminating 
against black citizens on the ground of race. The action was 
based primarily on 42 U.S.C. Section 1982, which was interpreted 
by the Supreme-Court to bar all racial discrimination in the 
sale of real estate. Jones v. Alfred H. Mayer Co., 392 U.S.
4.09 (1968). The letter to appellant Lee was sent by Southern 
Home Sites about six weeks after the Jones decision, and 
appellant was excluded from the resort development about two 
months after the decision. At trial, appellant made no attempt 
to show that Southern Home Sites had actual knowledge of the 
Jones decision at the time of its discriminatory conduct; nor 
did the developer seek to show its ignorance of the decision.

-7-



On August 11, 1.970, the District Court found as a fact that 
because of appellant's failure to prove appellee's knowledge 
or notice of Jones, appellee's conduct was not "malicious, 
oppressive or so 'unreasonable and obdurately obstinate' as 
to warrant an award for attorneys' fees" (II.8). Appellant 
here maintains that the denial of attorneys' fees was 
erroneous as a matter of law.

ARGUMENT

I. The History and the Purpose of Section 1982 Demonstrate 
That Attorneys' Fees Should Be Awarded to Plaintiffs 
Who Successfully Invoke Its Provisions.

Unlike many of the recent statutes authorizing
2/

private suits to vindicate denials of equal rights, 42 U.S.C.
Section 1982 does not expressly authorize the granting of
attorneys' fees to successful plaintiffs. An analysis of the
history and purpose of Section 1982 readily demonstrates,
however, that the allowance of attorneys' fees to successful
plaintiffs invoking its provisions is a proper means of

3/
"fashioning an effective equitable remedy" for its enforcement

2/ See 42 U.S.C. Section 2000a-3(b) (public accommodations);
42 U.S.C. Section 2000e-5(k) (equal employment); 42 U.S.C. 
Section 3612(b) (fair housing).

3/ Jones v. Alfred H. Mayer Co., 392 U.S. 409, 414, n.13 (1968)

/ -8-



Section 1982 is derived from Section 1 of the Civil
4/Rights Act of 1866. The history and meaning of the statute 

are discussed at length in the opinion of the Supreme Court 
in Jones v. Alfred H. Mayer Co., 392 U.S. 409, 420-444 (1968).
There, the Court held that (1) the statute was intended to bar 
all racial discrimination, private as well as public, in the 
sale or rental of property, and (2) as thus construed, it was 
a valid exercise of the power of Congress to enforce the

5/
Thirteenth Amendment.

6/
As originally enacted, the Civil Rights Act of 1866 

was to be enforced primarily through criminal prosecutions 
brought by federal district attorneys against persons who 
violated its provisions. The sponsors of the bill feared that 
permitting only a private right of action would be insufficient 
to eradicate either the racial wrongs being perpetrated or the

4/ Act of April 7 , 1866 , c. .31, Section 1, 14 Stat. 27,
re-enacted by Section 18 of the Enforcement Act of 1870,
Act of May 31, 1870, c. 114, Section 18, 16 Stat. 140, 144, 
codified in Sections 1977 and 1978 of the Revised Statutes 
of 1874.

5/ It was the Jones decision which led the District Court to
hold on the merits that Southern Home Sites' discrimination 
violated Section 1982 and to issue the injunction barring 
future discrimination and ordering the sale of a lot to 
Lee (1.44) .

6/ See n.4, supra.

- 9



temper which gave rise to and sustained them. They expressed
Partj-cu-J-ar concern about the likelihood that those persons
whom the Act sought to protect could not bear the expense of
enforcing their rights if they were not assisted by the

8/
federal attorneys.

In the intervening reenactments of the Act of 1866, 
tne penal provisions which originally accompanied it have been

7/

8/

Introducing the bill on January 5, 1866, Senator Trumbull 
stated its objective was to give effect to the declaration 
contained in the Thirteenth Amendment and to secure to all 
persons within the United States practical freedom. "There 
is very little importance in the general declaration of 
abstract truths and principles unless they can be carried 
into effect, unless the persons who are to be affected by 
them have some means of availing themselves of their 
benefits." Cong. Globe, 39th Cong., 1st Sess. 474, quoted 
m  Jones v. Alfred H, Mayer Co., supra, at 431-32.
James Wilson, who introduced the bill into the House, 
expressed in greater detail the legislative intention as 
he responded to Ohio Congressman Bingham's motion to 
recommit and to "strike out all parts of the bill which 
are penal and authorize criminal proceedings and in lieu 
thereof to give injured citizens a civil action in the 
United States Courts..." Id. at 1293. Between the two,
Mr. Wilson said, There is no difference in the principle 
involved... There__is__a difference in regard to the expense 
of protection. There is also a difference~as~to'"the 
effectiveness of the two modes...This bill proposes that 
the humblest citizen shaIJL̂  have fu 11 and ample protection 
a ~̂ the cost of the Government, whose duty it is to protect 
him. The Amendment of the gentleman recognizes the principl 
involved, but it says that the, citizen despoiled of his 
rights...must press his own way through the courts and pay 
the .costs attendant thereon. This may do foFthe rich, but 
to the poor, who need protection, it is mockery .T. " Id. at"" 
1295 (emphasis added). ~ —

-10-



'

separated or eliminated, so that today Section 1982 is 
"enforceable only by private parties acting on their own 
initiative." Jones v. Alfred PI. Mayer Co., supra, at 417. 
However, as the Court noted in Jones, "The fact that 42 U.S.C. 
Section 1982 is couched in declaratory terms and provides no 
explicit method of enforcement does not, of course, prevent 
a federal court from fashioning an effective equitable remedy." 
Id. at 414, n .13. And as this Court stated in its previous 
opinion in the instant case:

"In the area of civil rights, many cases have 
either allowed or implicitly recognized the 
discretionary power of a district judge to 
award attorneys' fees in a proper case in 
the absence of express statutory provision 
Icitations omitted] and especially so when 
one considers that much of the elimination 
of unlawful racial discrimination necessarily 
devolves upon private litigants and their 
attorneys, cf. Newman v. Piggie Park-
Enterprises ,_Inc. , 39 0 U.S; 400, 402 (1968),
and the general problems of representation in 
civil rights cases. See Sanders v. Russell, .
5th Cir. 1968, 401 F.2d 241." Lee v. Southern 
Home Sites Corp., 429 F.2d 290, 295 (5th Cir.
I970T.

9/

9/ The only remaining criminal statute derived from the Act 
is 18 U.S.C. Section 242. See United States v. Price,
383 U.S. 787, 801-02 (1966). While Section 242 is limited
to actions taken "under color of law," it may well be that 
18 U.S.C. Section 241, derived from the Enforcement Act of 
1870 (the reenactment of Section 1982, see n.4, supra) 
would permit criminal prosecutions against persons who 
conspire to interfere with the rights guaranteed by 
Section 1982.

11



In Jones, the Supreme Court resurrected Section 1982
and held that it operated as a fair housing statute to outlaw

10/
all racial discrimination in the sale of real property.
We subrr.it that the effectiveness of Section 1982 as a guarantee
of equal housing opportunity would be vastly diminished by
limiting the availability -of attorneys' fees under the standard
followed by the court below. The District Court here denied
fees on the around that appellant failed to prove that Southern
Home Sites had actual knowledge or notice of the Supreme
Court's decision in Jones and that, accordingly, appellee's
discriminatory conduct was not "malicious, oppressive or so
'unreasonable and obdurately obstinate' as to warrant an award

11/for attorneys' fees" (1.8) . The District Court did not

10/ The Court noted and agreed with the statement of the
Attorney General at oral argument: "The fact that the
statute lay partially dormant for many years 'cannot be 
held to diminish its force today." 392 U.S. at 437.

11/ The court went further to find that in the absence of 
such proof, Southern Home Sites did not in fact have 
notice of the Jones decision (II.7). This inference is 
without any evidentiary support whatever and is clearly 
erroneous. It might be noted that the Jones decision 
made headlines in every newspaper in the South. See, 
e.g., the Jackson Clarion-Ledger, June 18, 1968, p. 1; 
the Gulfport--Biloxi Daily Herald, June 18, 1968, p. 1; 
the Mobile Press, June 18, 1968, p. 3; the Mobile Press 
Register, June 23, 1968, p. 1. It seems exceedingly 
unlikely that a large real estate developer like Southern 
Home Sites would remain wholly ignorant of a landmark 
decision directly affecting its business; In any event, 
as will be demonstrated below, an award-of attorneys' fees 
cannot be conditioned on proof that the defendant actually 
knew the law condemning its racially discriminatory practices.

-12-



mention the facts that (1) six weeks after the Jones decision,
Southern Home Sites distributed thousands of racially insulting
letters, with no attempt whatever to determine the race of
addressees and thus with callous disregard for the feelings
of black recipients; (2) appellee's policy was not only to
keep Ocean Beach Estates a lily-white preserve, but it planned
a wholly segregated all-black development; and (3) appellee's
defense in the trial court was frivolous— appellee contended
that the promotional offers were for a "gift" and that under
Mississippi law the donor had complete discretion to select
his donees (1.32-34,37; defendant's response to motion for

12/
summary judgment).

The reason, for the District Court's denial of 
counsel fees —  that appellee did not "know" of the Jones 
decision--might be appropriate if the question were whether 
to impose punitive damages and if some showing of willful or 
malicious conduct were required. But here we are dealing with 
whether counsel fees may be awarded, and the District Court s 
approach seems wholly inappropriate. Indeed, the approach of

12/ Appellant proved at trial that the transactions could in 
no way be considered "gifts." Recipients of promotional 
offers were required to pay $49.50 in cash to o.otain a 
lot (I..93,25,31-32,27,33) . All 119 of these transactions 
were accounted for on Southern Home Sites' books in 
exactly the same manner as all cash purchases of lots 
(1.94-95,118). Appellee introduced no evidence of 
donative intent.

-13-



ths court below has already been rejected by this Court in 
the analogous case of Miller v. Amusement Enterprises, Inc.,
426 F .2d 534 (5th Cir. 1970). In Miller, the district court 
had denied attorneys' fees to a successful plaintiff in a suit 
challenging racial discrimination under Title II of the Civil 
Rights Act of 1964. The-reason for the denial was that at 
the time of the discriminatory act (and, indeed, even up to 
and after the decision of a panel of this Court), the defendant 
company was not deemed in violation of the law; not until the 
en banc decision of this Court was the defendant held to be 
covered by Title II. This Court reversed the denial of fees, 
stating that the defendant

". . .became subject to the prescribed
judicial relief not because the Court said 
so, but rather because the Court said— even 
perhaps for the very first time--that the 
Congress said so." 426 F .2d at 536.

The Court also ruled that the defendant's subjective "good
faith" was not to be considered as a justification for denying
counsel fees. Even though the defendant in Miller, unlike
appellee here, advanced no frivolous defenses, and even'though
several judges agreed with its position, this Court directed
an award of attorneys' fees.

To be sure, Miller involved a statute containing an 
express provision for attorneys' fees. See '42 U.S.C. Section 
2000a-3 (b) (fees may be granted in the "discretion" of the



court). But this Court's reasoning applies equally to 
Section 1982:

"Congress did not intend that vindication of 
statutorily guaranteed rights would depend 
on the rare likelihood of economic resources 
in the private party (or class members) or 
the availability of legal assistance from 
charity--individual, collective or organized.
An enactment aimed at legislatively.enhancing 
human rights and the dignity of man through 
equality of treatment would hardly be served 
by compelling victims to seek out charitable 
help." 426 F.2d at 539.

Miller relied on the Supreme.Court1s decision in Newman v.
Piggie Park Enterprises, Inc., 390 U.S. 400 (1968). In
Piggie Park, the Court noted that since the statute, like
Section 1982, provides no administrative agency or criminal
prosecutions to enforce its mandate, its effectiveness depends

13/
on the ability of private litigants to maintain civil suits. 
Said the Court:

"If [the plaintiff]’ obtains an injunction, 
he does so not fox' himself alone but also 
as a "private attorney general," vindicating 
a policy that Congress considered of the 
highest priority. If successful plaintiffs 
were l'outinely 'forced to bear their own 
attorneys' fees, few aggrieved parties would 
be in a position to advance the public 
interest by invoking the injunctive powers 
of the federal courts." 390 U.S. at 402 
(footnote omitted).

13/ The Attorney' General of the Uniued States is empowered to 
bring suit to enforce Title II. See 42 U.S.C. Section 
2000a-5 (a) . But Section 1982 has no such provision and 
its enforcement depends wholly on private civil actions.
See generally, on the need for counsel fee awards to 
enforce fair housing statutes, Davidson and Turner, Fair 
Ho.usincf and Fedeiol Law, 1 ABA Human Rights 36 , 49-50 (1970) .

-15-



This Court has subsequently applied the "private attorney 
general" doctrine not only in Miller but also in cases arising 
under the fair employment provisions of the Civil Rights Act 
of 1964. See Pettway v. American Cast Iron Pipe Co., 411 
F .2d 998, 1005 (5th Cir. 1969); Jenkins v. United Gas Corp.,
400 F .2d 28, 32-33 (5th Cir. 1968); Oatis v. Crown Zellerbach 
Corp., 398 F .2d 496, 499 (5th Cir. 1968).

The teaching of Piggie Park and its progeny is that 
counsel fees should be awarded to the successful plaintiff 
unless "special circumstances render such an award unjust."
390 U.S. at 402. It is irrelevant whether the defenses 
advanced by the discriminating party were frivolous or 
plausible. And it is perfectly clear under Miller that the 
test cannot be whether the defendant had actual knowledge of 

the law.

The fact that Section 1982, unlike more recently
14/

enacted civil rights statutes, does not explicitly provide
for attorneys' fees should not justify deviation from the 
Piggie Park standard. First, as demonstrated above, Congress 
originally provided that the enforcement of the rights 
guaranteed by Section 1982 should be undertaken by government 
attorneys for the very reason that the persons aggrieved could

14/ See n.2, supra.



not bear the cost of litigation. Nothing in the subsequent
revisions which have made those rights "enforceable only by

16/
private parties acting on their own initiative" indicates 
that Congress intended to limit their availability to those 
few who could bear the cost of litigation. The allowance of
attorneys' fees under the Piggie Park standard clearly would 
serve to fulfill the legislative intent and to effectuate 
the Congressional policy expressed in Section 1982.

Second, the cases relied on by the District Court
to support its standard of requiring "unreasonable, obdurate 

17/
obstinacy" by a defendant before attorneys’ fees can be 
allowed were all in the context of school desegregation suits, 
where the plaintiffs sought to enforce rights which were 
judicially declared and which were not an explicit .statutory

15/

15/ See nn. 6 and 7 and accompanying text, supra.
16/ Jones v. Alfred H. Mayer Co., supra, at 417.
17/ Bradley v. School Board of the City of Richmond, 345 F .2d 

310, 321 (4th Cir. 1965); cf. Id. at 324-5 (Sobeloff and 
Bell, JJ. dissenting); Kemp v. Beasley, 352 F .2d 14 (8th 
Cir. 1965); Williams v. Kimbrough, 295 F.Supp. 578, 587, 
aff'd, 415 F.2d 875 (5th Cir. 1969), cert, denied, 396 
U~S. 106) (1970). Smoot v. Fox, 353 F .2d 830 J6th Cir.
1965), also cited by the District Court, was a common 
law libel, ciction and is in no way relevant to this case.

-17-



»
i

"policy that Congress considered of the highest priority." 
Moreover, the defendant here is a profit-making corporation 
engaged in racial discrimination as part of its business, not 
a school board composed of unpaid public servants. Whatever 
may be the policy for denying counsel fees in school cases, 
the policy does not apply here. Indeed, the explicit

I V
provision for counsel fees in the Fair Housing Act of 1968 
establishes a Congressional policy strongly favoring counsel 
fee awards in housing discrimination cases.

Other district courts granting injunctive relief 
in suits under Section 1982 have awarded attorneys' fees. In 
Terry v. Elmwood Cemetery, 307 F.Supp. 369 (1969), suit was
brought to compel the defendant cemetery to sell a burial plot 
to a black mother for the grave of her son, who was killed in 
action in Viet Nam. The cemetery refused to sell the plot

18/ Newman v. Piggie Park Enterprises, supra, at 402. See
Cong/ Globe, 39th Cong., 1st Sess., 474, quoted in Jones 
v. Alfred H. Mayer Co., supra, at 431-32. Also, Congress 
has now authorized the Attorney General to file suits on 
behalf of the United States to desegregate schools. See 
Title IV of the Civil Rights Act of 1964, 42 U.S.C. 
Section 2000c et seq. See also Title III, 42 U.S.C. 
Section 2000b et seq., authorizing the Attorney General 
to sue to challenge discriminatory practices in state 
owned or operated facilities. Much of the cost of 
litigation to desegregate schools is thus borne by the 
federal government.

19/ 42 U.S.C. Section 3612(c).
I

-18-



solely because of the race of the deceased. Chief Judge Lynne
carefully analyzed the Jones decision and the lower court
cases which followed it and held that the refusal to sell the
burial plot was a violation of Section 1982. In the final
iudqnient (which followed the reported opinion) , attorneys

20/
fees in the amount of $2500 were awarded.

Newbern v. Lake Lorelei, Inc., 308 F .Supp. 407;
1 Race Rel. L. Survey 185'Ts ."d . Ohio, 1968 , 1969), which was
relied upon in Terry, is very similar to the instant case in
that it involved a large real estate development from which
blacks were excluded. The case was brought as a class action
by an individual who had been refused a lot in the development.
The court defined the class as "members of the Negro race" who
had been similarly excluded, Id. at 417, the same delimitation
of the class made by the lower court in this case (1.49) . By
a supplemental order, the court in Newbern awarded attorneys

21/
fees in the amount of $1000. Also, in Pina v. Homsi, 1 Race
Rel. L. Survey 18 (D. Mass. July 10, 1969), the plaintiffs were

20/ Terry v. Elmwood Cemetery, N.D. Ala. Civ. No. 69-493, 
order of January 29, 1970. Terry is a particularly 
significant case in this regard as the property there 
involved is not covered by the provisions of the 1968 
Fair Housing Act and suit, even today, could be 
maintained only under the provisions of Section 1982.

21/ Newbern v. Lake Lorelei, Inc., 1-Race Rel. L. Survey 185 
(S.D. Ohio, March 12, 1969).

-19-



refused an apartment because the husband was black. Under 
Section 1982, the court awarded compensatory damages and 
attorneys' fees.

These cases under Section 1982 follow the well 
established principle that federal courts have equitable power 
to award counsel fees in appropriate cases even in the absence 
of statutory authorization. See Mills v. Electric Autolite Co., 
396 U.S. 375 (1970); Vaughn v. Atkinson, 369 U.S. 567 (1962);
Sprague v. Ticonic Nationa.l-.Bank, 307 U.S. 161 (1939); Newman
v. Piggie Park Enterprises, Inc., supra, 390 U.S. at 402, n.4.
The instant case presents special reasons supporting an award 

of counsel fees:
(1) Section 1982 expresses a national policy of

the highest priority —  the eradication of racial discrimination 
in housing. Therefore, appellant acts here as a "private 
attorney general" in vindicating the statutory right to equal 
housing opportunity. Cf. Newman v. Piggie Park Enterprises, 
Inc., supra, 390 U.S. ah’ 402. And as the Supreme Court said 
of Section 1982, ".The existence of a statutory right implies 
the existence of all necessary and appropriate remedies." 
Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 239 (1969).

(2) The discrimination involved here was systematic 
and deliberate; it was not isolated or accidental. Appellant 
Lee challenged not only the refusal to sell him a lot but also

-20-



the policy of (a) distributing offers addressed to the general 
public but acceptable only by "a member of the white race," 
and (b) creating a wholly segregated all-black development. 
This kind of action ought to be encouraged by an award of 
counsel fees under Section 1982, so that neither aggrieved 
parties nor their attorneys need subsidize from their own

•

pockets the essentially public activity of correcting
22/

systematic racial discrimination.

(3) This is a class action on behalf of all blacks 
discriminated against by Southern Home Sites. If the action 
had not been brought, the rights of class members would never

.

have been vindicated, because their claims are too small to

■

22/ Awarding counsel fees to encourage "public" litigation 
by private parties is an accepted device. For example, 
in Oregon, union members who succeed in suing union 
officers guilty of wrongdoing are entitled to counsel 
fees both at the trial level and on appeal, because they 
are protecting an interest of the general public:

If those who wish to preserve the internal 
democracy of the union are required to pay 
out of their own pockets the cost of employing 
counsel, they are not apt to take legal action 
to correct the abuse. . . . The allowance of
attorneys1 fees both in the trial court and 
on appeal will tend to encourage union members 
to bring into court their complaints of union 
mis-management and thus the public interest as 
well as the interest of the union will be 
served.

Gilbert v. Hoisting & Portable Engineers, 237 Or. 139, 
390 P.2d 320 (1964). See also Rolax v. Atlantic Coast
Line R.R., 186 F .2d 473 (4th Cir. 1951).

21-



the policy of (a) distributing offers addressed to the general
public but acceptable only by "a member of the white race,"
and (b) creating a wholly segregated all-black development.
This kind of action ought to be encouraged by an award of
counsel fees under Section 1982, so that neither aggrieved
parties nor their attorneys need subsidize from their own
pockets the essentially public activity of correcting

22/
systematic racial discrimination.

(3) This is a class action on behalf of all blacks 
discriminated against by Southern Home Sites. If the action 
had not been brought, the rights of class members would never 
have been vindicated, because their claims are too small to

"22/ Awarding counsel fees to encourage "public" litigation 
by private parties is.an accepted device. For example, 
in Oregon, union members who succeed in suing union 
officers guilty of wrongdoing are entitled to counsel 
fees both at the trial level and on appeal, because they 
are protecting an interest of the general public:

If those who wish to preserve the internal 
democracy of the union are required to pay 
out of their own pockets the cost of employing 
counsel, they are not apt to take legal action 
to correct the abuse. . . . The allowance of
attorneys' fees both in the trial court and 
on appeal will tend to encourage union members 
to bring into court their complaints of union 
mis-management and thus the public interest as 
well as the interest of the union will be 
served.

Gilbert v. Hoisting & Portable Engineers, 237 Or. 139, 
390 P.2d 320 (1964). See’also Rolax v. Atlantic Coast
Line P.R., 186 F.2d 473 (4th Cir. 1951) .

-21-



justify individual litigation. Cf. Eisen v. Carlisle & 
Jacquelin, 391 F.2d 555, 560 (2d Cir. 1968); Dolgow v. 
Anderson, 43 F.R.D. 472, 484-87 (E.D. N.Y. 1968). And since 
individual suits would not have been brought, the statute 
outlawing appellee's conduct would have gone unenforced. As 
the Supreme Court said in granting fees in Mills v. Electric 
Autolite Co., supra, "private. . .actions of this sort. . . 
furnish a benefit to all. . .by providing an important means 
of enforcement of the. . .statute." 396 U.S. at 396.

Therefore, it was error for the court below to 
withhold counsel fees on the ground that appellee was not 
on notice of the Jones decision and did not act maliciously 
or obstinately. The case should be remanded with instructions 
to award reasonable attorneys' fees covering all proceedings 
in the District Court and on both appeals. See Miller v. 
Amusement Enterprises, Inc., 426 F.2d 534, 539 (5th Cir. 1970).

11. The Explicit Provision For Attorneys' Fees In- The 1968 
Fair housing Act, A Procedural Aspect of the Statute, 
Should Be Applied to This Case.

The discriminatory acts of Southern Home Sites 
would clearly have been covered by specific provisions of the 
Fair Housing Act of 1968 had they taken place after 
December 31 , 1968 . See 42 U.S.'C. Section 3604 (a) , (b) , (c) and 
(d). Because they occurred during 1968 and related to housing

-22-



substantive prohibitions of the Act did not cover them.
Appellant Lee was thus compelled, in this action filed
October 15, 1968, to base his substantive claim that the acts
were illegal on Section 1982. But invoking the procedural
and remedial provisions of the 1968 Act would not run counter
to Congressional intention. Indeed, the legislative history
of the Act indicates that Congress had in mind as one of its
purposes the effectuation of Section 1982:

[T]he Senate Subcommittee on Housing and 
Urban Affairs was informed in hearings held 
after the Court of Appeals had rendered its 
decision in the case that Section 1982 might 
well be "a presently valid federal statutory 
ban against discrimination by private persons 
in the sale or lease of real property." The 
Subcommittee was told, however, that even if 
this Court should so construe Section 1982, 
the existence of that statute would not 
"eliminate the need for congressional action" 
to spell out "responsibility on the part of 
the federal government to enforce the rights 
it protects." The point was made that, in 
light of the many diff:icuIties confronted by 
private litigants seeking to. enforce such 
rights on~their own, "legislation is needed 
to establish federal machinery for enforcement 
of the rights guaranteed under- Section 1982...." 
quoted in Jones v. Alfred H. Mayer Co., 392 U.S. 
at 415-16 (emphasis'added; footnotes omitted).

not owned or financed by the federal government, the
23/

23/ 42 U.S.C. Section 3603. The substantive prohibitions
covered only housing owned or financed by the federal 
government during 1968. Id_. It might be noted that the 
1968 Act even now covers only "dwellings" and does not cover 
personal, commercial, or industrial property. Of course, 
Section 1982 covers all property. Jones v. Alfred H. Mayer 
Co., 392 U.S. 409, 413 (1968); see generally, on the coverage
of the respective statutes,. Davidson find Turner, Fair Housing 
and'Federal Law, 1 ABA Human Rights 36 (1970).



Thus, it seems entirely appropriate to apply the "machinery" 
of the Fair Housing Act--in this context, its provision for 
attorneys' fees--to assist in the enforcement of the Section 
1982 rights which were violated here.

/
The 1968 Fair Housing Act explicitly provides for 

the allowance of "reasonable attorney fees in the case of a 
prevailing plaintiff" suing under its provisions. 42 U.S.C.

24/Section 3612(c). Since attorneys' fees are universally

24/ The provision is phrased in stronger language than the 
analogous provision in Title II of the Civil Rights Act 
of 1964, which authorizes attorneys' fees in the 
"discretion" of the court. The Title II provision has 
been interpreted to mean that fees must be awarded in 
virtually every successful case. Newman v. Piggie Park 
Hnterprises, Inc., 390 U.S. 400 (1968). Thus the Fair
Housing Act should be interpreted to confer a right to 
recover fees, except where the plaintiff is wealthy 
enough to afford easily the expense of litigation.
Also, the legislative history indicates that successful 
plaintiffs who are not even obligated to pay their 

. lawyers--for example, persons represented by legal 
services offices or private legal associ ati.ons--are 
entitled to recover fees, on the Piggie Park theory that 
"private attorneys general" play an important role in 
vindicating constitutional rights. See remarks of 
Senator Hart (floor manager of the bill), 114 Cong. Rec. 
S2308 (daily ed. March 6, 1968).

-24-



we submit that this
'----  25/

considered a procedural matter,
provision of the Act should be applied to the instant case.

This type of application of new Congressional policy
to prior conduct in the civil rights field was seen in Hamm v.
City of Rock Hill, 379 U.S. 306 (1964), where the Court held

26/
that the statutory prohibition of interference with equal 

access to public accommodations abated all pending criminal 
prosecutions of persons who had sought such access prior to 
the passage of the Act. Here, an appreciably less significant 
retrospective application is sought, since the Fair Housing

25/ Rules governing the retrospective application of the
substantive portions of a statute need not be discussed 
here. Provisions for attorneys' fees are without a doubt 
procedural. In the cases and statutes pertinent hereto, 
counsel fees are awarded as part of the costs. Provisions 
which govern the^r allowance are found in the procedural 
sections of the Fair Housing and other Civil Rights Acts. 
42 U.S.C. Section 3612(c); 42 U.S.C. Section 2000a-3(b);
42 U.S.C Section 2000e-5 (k) .
In Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 
403~(1968), the Supreme Court ordered the district court 
on remand to "include reasonable counsel fees as part of 
the costs to be assessed against the respondents." This 
Court in Miller v. Amusement Enterprises, Inc., 426 F.2d 
534, 539 (5th Cir. 1970), recognized that "The Newman 
rule. . .calls for the allowance of attorney fees as part 
of the costs." (emphasis added)
See also Rules 30(g), 37(a), 37(c), 54(d) and 56(g) of the 
Federal Rules of Civil Procedure. All refer to attorneys' 
fees as an element of costs or expenses.

26/ Title II of the Civil Rights Act of 1964,_42 U.S.C.
Section 2000a-2.

-25-



Act was enacted well before Southern Home Sites engaged in
27/

its discriminatory conduct and the conduct was in any event 
illegal under Section 1982.

Also relevant is the principle of Thorpe v. Housing
Authority of the City of Durham, 393 U.S. 268 (1969), that
when there is a change in the law while a case is pending in
the courts, the court should generally apply the law in effect

28/
at the time of its decision. Here, the 1968 law was fully
applicable prior to the first judicial opinion in this case 
(the District Court's opinion of April 7, 1969), and it 
seems quite proper to apply its procedural devices here.

Finally, the Supreme Court has recently said of 
Section 1982 and the Fair Housing Act that "the 1866 Civil 
Rights Act considered in Jones should be read together with

the later statute on the same subject. . . . "  Hunter v.
29/

Erickson, 393 U.S. 385, 388 (1969). Moreover, there is

27/ The law was enacted on April 11, 1968, Pub. L. 90-284;
82 Stat. 82; 42 U.S.C. Sections 3601 et seq.

28/ See also, United States v. Schooner Peggy, 1 Cranch 103, 
110 (1801); Vandenbark v. Owens Illinois Co., 311 U.S.
538 (1941); zTffrln, Inc. v. United States, 318 U.S. 73 
(1943).

29/ The Court was there discussing whether the earlier law
should be read so as to incorporate the provision of the 
1968 statute preserving local fair housing laws, and held 
that it should.

/ -26-



the mandate of 42 U.S.C. Section 1988, requiring that the 
federal courts, in proceedings to protect and enforce civil 
rights, be guided not only by the particular statute in 
question; the courts are directed also to draw from other laws 
to assure effective remedies for the wrongs involved. The 
Supreme Court has invoked this provision specifically to 
supply appropriate remedies under Section 1982. See Sullivan 
v. Little Hunting Park, Inc., 396 U.S. 229, 239 (1969). And
this Court has said of Section 1988 that "In civil rights 
cases, federal courts should use that combination of federal 
law, common law and state law as will be best adapted to the 
object of the civil rights laws. . ." Brown v. City of
Meridian, 356 F.2d 602, 605 (5th Cir. 1966). Therefore, the 
1968 Fair Housing Act should be read harmoniously with Section 
1982 to provide a single set of effective remedies under these 
statutes, and the attorneys' fees provision of the 1968 Act 
should be applied in this case.

/

-27-



CONCLUSION

For the reasons stated, the case should be remanded 
to the District Court with instructions to award reasonable 
attorneys' fees covering all proceedings in that court and 
on both appeals of this case.

Respectfully submitted,

—  <_Jj2c___i gtn-Z,  ___

JACK GREENBERG 
JEFFRY A. MINTZ

10 Columbus Circle 
New York, New York 10019

REUBEN V. ANDERSON 
FRED L. BANKS, JR.

538 1/2 North Farish Street 
Jackson, Mississippi

WILLIAM BENNETT TURNER 
1095 Market Street 

__San Francisco, California 94103
Attorneys for Appellant

-28-



Ihtpremp (Exmrt of tty luiteft BUUb
October T erm , 1985 

L ibrary op Congress, el ni..

Petitioners,
v.

T o m m y  S h a w .

OH WRIT OP CERTIORARI TO THE UNITED STATES COURT OE 
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR RESPONDENT

J u liu s  L eV ohhe  Cham bers  
Charles S teph en  R alston  

(Counsel of Record)
99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900

Attorneys for Respondent



QUESTIONS PRESENTED
1. whether pre-judgment adjustments 

to compensate for delay in payment may be 
part of the calculation of a reasonable 
attorney’s fee and other relief in a 
Title VII case brought against the 
federal Government under 42 
U.S.C. §§ 2000e-16(c) and (d).

2. Whether 42 U.S.C. § 2000e-16 
constitutes a complete abrogation of 
sovereign immunity so that the same full 
relief available in a Title VII action 
against private and state and local 
government employers is also available 
against federal government agencies.

i



TABLE OF CONTENTS

Questions Presented ................ i
Table of Authorities.............. iv
STATUTES INVOLVED .................. 1
STATEMENT OF THE CASE.............. 2
SUMMARY OF ARGUMENT................ 10
ARGUMENT

I. THERE IS NO BAR TO A DELAY 
IN PAYMENT ADJUSTMENT TO AN
ATTORNEYS' FEE AWARD
AGAINST THE UNITED STATES . 12
A ._______ Ad j ustments___ for
Pre-Judgment Delays In
Payment May Be Included In 
Awards Pi: Equitable Relief 
Against The 'Federal
Government In The Absence 
Of Specific Statutory
Authorization.. . . . . .  14
B ._____ The Inclusion of A
Factor To Compensate For 
Pre-judgment Delays In
Payment Is A Necessary 
Component In "Calculating A 
Reasonable Attorney's Fee. . 24

II. SECTION 717 OF THE EQUAL EMPLOY­
MENT OPPORTUNITY ACT OF 1972 IS A 
COMPLETE ABROGATION OF SOVEREIGN 
IMMUNITY IN EMPLOYMENT DISCRIMI­
NATION CASES................. 39



A, Congressional Intent Is 
Determinative~~0f The Extent 
SovereTgn .TmmunTty'.. " ~Is
Waived By A Particular 
Statutory Scheme. . . . . .  39
B. Congress Intended To 
Waive All Sovereign
limn unity Bars ~To~ The Award 
of Complete ReTTef in TitTe 
VII Cases............. . 43

Conclusion .................. .. 61
APPENDICES

I. Statutes Involved
II. Calculation of Loss of

Value Through Inflation
III. Memorandum of Attorney

General Griffin B. Bell for 
United States Attorneys and 
Agency General Counsel 
(Aug. 31, 1977)

iii



TABLE OF AUTHORITIES

Page

Cases:
Albemarle Paper Co. v. Moody, 422

U.S. 405 (1975)........  37
Albrecht v. United States, 329 U.S.

599 (1947)............... 17
Alyeska Pipeline Service v.

Wilderness Soc., 421 U.S.
240 ( 1975)............. 36

Blake v. Califano, 626 F.2d 891
(D.C. Cir. 1980)....... 8

Blum v. Stenson, ___ U.S. ___, 79
L.Ed.2d 891 (1984) . . . .  25, 32

Boston Sand Co. v. United States,
278 U.S. 41 (1928) . . . . .  40

Brooks-Scanlon Corp. v. United
States, 265 U.S. 106 (1924) . 17

Brown v. General Services
Administration, 425 U.S. 820 
( 1976).............. 46, 50, 51

Chambers v. United States, 451
F.2d 1045 (Ct. Cl. 1971) . . 49

Chandler v. Roudebush, 425 U.S.
840 ( 1976).............. 44, 46

Chisholm v. United States Postal 
Service, 665 F.2d 482 
(4th Cir. 1981 ) .......  33

iv



Copeland v. Marshall, 641 F.2d
880 (1980) . . . . . .  3,4,6,7,24

Franchise Tax Board of California 
v. United States Postal 
Service, U.S. , 81 L.Ed.
2d 446 ( 1984).......... . 39

Franks v. Bowman Transportation 
Company, 424 U.S. 747 
(1976) . . . . . . ..........  54

Gautreaux v. Chicago Housing 
Authority, 690 F.2d 601 •
(7th Cir. 1982).........  24

General Motors Corp. v. Devex
Corp., 461 U.S. 648 
(1983). 15, 16, 17, 34, 35, 36, 37

Gnotta v. United States, 415
F. 2d 1271 (8th Cir. 1969) 50

Graves v. Barnes, 700 F.2d 220
(5th Cir. 1983).........  24

Griffin v. Carlin, 755 F.2d 1516
(11th Cir. 1985).......  33

Hensley v. Eckerhart, 461 U.S.
424 ( 1983)............ 25

Holly v. Chasen, 639 F.2d 795 
(D.C. Cir. 1981), cert. 
denied, 454 U.S. 822 
(1981) ........ . . . . .  8

Institutionalized Juveniles v.
Secretary of Public Welfare,
758 F.2d 897 (3rd Cir.
1985).................. 24

v



34
James v. Stockham Valves &

Fitting Co., 559 F.2d 310 
(5th Cir. 1977) . . . . .

Johnson v. University College of 
the University of Alabama,
706 F.2d 1205 (11th Cir.
1983)....................6,

Jorstad v. IDS Realty Trust, 643 
F.2d 1305 (8th Cir. 1981) .

Laycock v. Parker, 103 Wis. 161,
79 N.W. 327 (1899) . . . . .

Liggett & M. Tobacco v. United
States, 274 U.S. 215 (1927)

Nagy v. United States Postal
Service, 773 F.2d 1190 (11th 
Cir. 1985) ................

Nedd v. United Mine Workers of 
America, 488 F. Supp. 1208 
(M.D. Pa. 1980)........ 19,

Newman v. Pigoie Park Enterprises,
390 U.S. 490 (1968) . . . .  26,

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

Parker v. Lewis, 670 F.2d 249
(D.C. Cir. 1982) . . . . . .

Phelps v. United States, 274 U.S.
341 (1927) ................

Ramos v. Lamm, 713 F.2d 546 (10th 
Cir. 1983) . . . . . • • • •

24

24

20

1 7

40

20

38

26

5

17

24
vi



Saunders v. Claytor, 629 F.2d 596
(9th Cir. 1980), cert, denied,
450 U.S. 980 (1981) . . . .  9, 33

Seabord Air Line R. Co. v.
United States, 261 U.S. 299
(1923) . . . . . . . . . .  17, 18

Shultz v. Palmer, (No. 85-50) 33

Smith v. Califano, 446 F. Supp.
530 (D.D.C. 1978) . . . . .  53

Smith v. Phillips, 455 U.S. 209
( 1982)...........   10

Standard Oil Co. v. United States,
267 U.S. 76 (1925) . . . . .  41

Teamsters v. United States, 431
U.S. 324 ( 1977).......... 36

United States v. New York Tele­
phone Co., 434 U.S. 159 (1977) 10

United States v. North American
Transportation and Trading Co.,
253 U.S. 330 (1920) 18

United States v. Sherman , 98 U.S.
565 (1878) • • 21, 22

United States v. Testan, 424 U.S.
392 (1976) 49

Waite v. United States, 282 U.S.
508 (1931 ) 16, 17, 36

vi i



Statutes, orders, and regulations:
Equal Access to Justice Act . . . .  56
5 U.S.C. § 5596(b)............ 49
5 U.S.C. 7701 ( g ) ( 2 ) . . . . .  53
28 U.S.C. § 2516 . . . .  1, 10, 14, 23
42 U.S.C. § 2000e-5(q) . . . . .  54, 55
42 U.S.C. § 2000e-5 (k) ..... 44, 57
42 U.S.C. § 200Oe-1 6 ..  passim
P.L. 88-352, § 701(b) . . . . . .  48
P.L. 96-481 , § 206 ............ 56
42 Stat. 1590, ch. 192 (5-15-22) . 40
Executive Order 11246 . ........ 48
Executive Order 11478 .......... 48
President's Reorganization Plan

No. 1 of 1978, 43 F.R. 28 71 
( 1978).................... 52

5 C.F.R. Part 713 ( 1967)........ 48
5 C.F.R. S 1201.37 .............. 53
29 C.F.R. Part 1613............ 48
29 C.F.R. § 1613.271(c) . . . . . 53

viii



Other Authorities:
"Counsel Fees in Public Interest 

Litigation", Report By the 
Committee on Legal Assistance,
39 The Record of the Associa­
tion of the Bar of the City of 
New York 300 (1984) . . . .  25, 29

The Effect of Legal Fees on the 
Adeouacv of Representation, 
Hearings Before the Sub­
committee on Representation 
of Citizen Interests of the 
Committee on the Judiciary,
United States Senate, 93rd 
Cong., 1st Sess. (1973) . . 27

Hearings Before the General
Subcommittee on Labor of
the House Committee on
Education And Labor on
H.R. 1746, March 3, 4, and
18, 1971 . . . . . . . . .  48, 51

Hearings Before the Subcommittee 
on Labor of the Senate 
Committee on Labor and Public 
Welfare, on S. 2515, S.2617, 
and H.R. 1746, Oct. 4, 6, 
and 7, 1971 .............. 50, 51

Hohenstein, "Subtract Inflation
from Your Income, Prices and 
Profits," Legal Economics 35 
(ABA Section on Economics of 
Law Practice, Summer 1978) 1b

H. Rep. No. 92-238 (92d Cong. 1st
Sess., 1971) .............. 43

ix



Letter from Irving Jaffe, Acting
Assistant Attorney General, to 
Senator John V. Tunney, May 6, 
1975, 2 CCH Employment Practices 
Guide 5327 ( 1976) . . . .  . 57

Memorandum of Attorney General 
Griffin B. Bell for United 
States Attorneys and Agency 
General Counsel (Auq. 31,
1977), 2 CCH Employment 
Practices Guide 1f 5046 
( 1977) ....................  59, 60

Note, "Interest in Judgments
Against the Federal Government:
The Need for Full Compensation,"
91 Yale L.J. 297 (1981) . . . .  20

1 Op. Atty. Gen. 268 (1819) . . . .  21
2 Op. Atty. Gen. 390 (1830) . . . .  22
5 Op. Atty. Gen. 138 (1849) . . . .  22
5 Op. Atty. Gen. 227 (1850) . . . .  22
Ralston, "The Federal Government 

as Employer: Problems and
Issues in Enforcing the Anti- 
Discrimination Laws," 10 Ga. L. 
Rev. 717 ( 1976)............ 57

S. Rep. No. 92-415 (92d Conq. 1st
Sess., 1971)........ 34, 43, 45

H. Rep. No. 94-1558 (94th Conq.
2d Sess. 1976) . . . .  27, 28, 34

x



S. Rep. No. 94-1011 (94th Cong. 2d
Sess. 1976) . . . . . . . . .  27

Schlei & Grossman* Employment
Discrimination Law, (2d Ed.
1983)...................  36, 47

Subcommittee on Labor, Senate
Committee on Labor and Public 
Welfare, "Legislative History 
of the Equal Employment Oppor­
tunity Act
of 1972" . . .  45, 51, 52, 53, 55

United States Dept, of Labor, Bureau 
of Labor Statistics, Monthly 
Labor Review, May, 1985 . . .  2b

xi



No. 85-54

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1985

LIBRARY OF CONGRESS, et aI.,
Petitioners

v.
TOMMY SHAW

On Writ of Certiorari to The 
United States Court of Appeals 

for the District of Columbia Circuit

BRIEF FOR RESPONDENT

STATUTES INVOLVED
In addition to those in petitioners' 

brief, this case involves the following 
statutes, the text of which are set out in 
the appendix to this Brief:

42 U.S.C. § 2000e-16(a)-(c) 
28 U.S.C. § 2516(a).



2

STATEMENT OF THE CASE 
In general, petitioners' description 

of the proceedings below is accurate. 
Respondent does wish to emphasize a number 
of points regarding the context in which 
issue now before the Court arose.

This action began with the filing of 
an administrative complaint charging 
discrimination in employment against 
respondent Tommy Shaw, an employee of the 
Library of Congress. After respondent 
retained counsel, a settlement of his 
claim was negotiated. However, the 
agency, on advice from the Comptroller 
General, took the position that it could 
not agree to an award of back pay. This 
ruling, which the district court noted was 
caused by the Library's failure to make it 
clear that the claim arose under Title 
VII, necessitated the filing of the



3

present action. Order and Judgment of the 
District Court, Sept. 14, 1979; Pet. App. 
p. 59a-60a. The government continued to 
argue that an award of back pay was not 
possible when a federal employee's claim 
of discrimination was settled administra­
tively, but the district court ruled for
the respondent and against the governmentl.......
on cross-motions for summary judgment. As 
a result of these proceedings, respondent 
received a promotion and an appropriate 
amount of back pay.

As petitioners note, at issue in this 
case now are the fees remaining to be paid 
to one of the respondent's attorneys for 
work done as far back as 1978. The fee 
award was not made by the district court 
until 1980 since it decided to await the 
en banc decision of the Court of Appeals 
of the District of Columbia in Copeland v. 
Marshall 9 641 F.2d 880 (1980), which



4

established definitive standards for
awards of fees in Title VII cases in the
District, particularly in cases involving
the federal government. The government
made no objection to delaying the fee

1
disposition until Copeland was announced.

As the district court noted when it
made its award, the government neither
disputed respondent's entitlement to fees

2nor much of the amount to be awarded. * 2
The district court entered its judgment on 
the merits on September 14, 1979. In that 
order it announced its intention to await 
the e_n banc decision in Copeland. See, 
Order and Judgment of the District Court, 
filed September 14, 1979. Copeland was 
announced in September, 1980.

2 The government argued that a proper hourly 
rate would be $60. It was not precise, 
however, with regard to the number of 
hours for which fees should be awarded, 
but only suggested that the 103.75 hours 
claimed should be reduced "significantly. " 
See, Defendant's Memorandum of Points and 
Authorities In Opposition to Shalon 
Ralph's Motion for Attorney's Fees, pp. 
3-5; 7-8. The district court subtracted 
only 4.75 hours, for time spent on an 
issue on which respondent did not prevail, 
and awarded fees for a total of 99 hours. 
Pet. App. pp. 63a-64a. The government did 
not dispute this result on appeal.



5

Nevertheless, in keeping with its long­
standing practice, the government did not 
offer to pay that part of the fee that was 
undisputed. (Pet. App. p. 68a.) Indeed, 
payment of the undisputed amount was not 
made until the present appeal was pending
and, then, it was a consequence of a

decision of the court of appeals in

another case, Parker v. Lewis, 670 F.2d

249 (D.C. Cir. 1982), requiring payment of
the undisputed portions of a fee award 
pending appeal.3 The Parker rule was 
premised on the need to avoid delays in 
payroent and conseguent hardships to Title 
VII plaintiffs and their attorneys.

The court of appeals did, as recited in 
its opinion (Pet. App. p. 6a, n. 24), 
order payment of $6,779.50, the undisputed 
amount. However, the parties had pre­
viously entered into a stipulation for 
such payment in the district court based 
on Parker v. Lewis, supra. See, Stipula­
tion to The Entry of An Order to Enforce 
In Part the Judgment Awarding Counsel Fees 
and Costs.



6

Copeland squarely held that in 
actions against the federal government 
delay in payment must he factored in when 
calculating a reasonable fee. 641 F.2d at 
893. Thus, the district court followed 
Copeland and used one of the methods set 
out in that decision to arrive at an 
appropriate amount for the delay.4 As 
petitioners note in their brief, the 
correctness of the district court's 
calculation is still in dispute, since the 
court of appeals remanded for clarifi­
cation whether the hourly rate awarded 
already included compensation for delay.

Three methods to compensate for delay are: 
(1) the use of hourly rates current at the 
time the award is made; (2) adjusting the 
rates by year by an appropriate amount so 
as to adjust for inflation; (3) adjusting 
the lodestar amount by an appropriate 
factor. See Johnson v. University College 
of the University of Alabama, 706 F.2d 
1205, 1210-1 1 (1 1th CTT. T983). The 
district court used the third method.



7

In addition to the en banc decision in 
Copeland, panels of the court of appeals 
had held that fees in Title VII actions 
against federal agencies fees should be 
adjusted for delay in payment. Thus, when 
the present case arrived in the court of 
appeals, there was already an e_n banc 
decision and at least three panel deci­
sions of that court that squarely held 
that the district court was correct in 
including a delay factor. Counsel for 
respondent in the court of appeals (who 
are also counsel here) not surprisingly 
relied on the clear law of the circuit to 
support the judgment of the district 
court.  ̂ Since there was no need to go 
beyond the settled law of the circuit, 
they did not argue at length the issues of

The court below noted "the seemingly clear 
applicability of these precedents" but 
decided not to rest "on stare decisis 
alone." Pet. App. p. 9a.

5



8

waiver of sovereign immunity and other
matters presented now. Thus, the argument
made was essentially that the calculation
of a reasonable attorney's fee necessarily
included compensation for delay in
payment, an argument accepted even by the
dissenting judge below.

Moreover, panel decisions of the court
of appeals had also held that cost of
living adjustments were not available on

6backpay awards against the government
and that interest qua interest could not

7be assessed on a fee award. Again, since 
the state of the law in the circuit 
established the correctness of the 
district court's decision, counsel for

Blake v. Califano, 626 F.2d 891 (D.C. Cir.
1980) .
Holly v. Chasen, 639 F.2d 795 (D.C. Cir.
1981) , cert, denied, 454 U.S. 822 (1981).

7



9

respondent (appellee there) did not feel
it either necessary or desirable to raise

8these other issues.
If the government's suggestion to the 

court of appeals for rehearing en banc in 
the present case had been granted, 
respondent would, of course, have raised 
and relied upon all of the arguments made 
herein to support the judgment of the 
district court. Thus, the government's 
attempt (Pet. Brief, p. 18) to make some­
thing out of counsel's decision not to 
raise these questions before a panel of 
the court below when such issues were 
decided by its earlier decisions is

As we have already noted in our Brief in 
Opposition to the Petition for Writ of 
Certiorari, we believe that the decisions 
of lower courts holding that back pay 
awards cannot be adjusted for inflation in 
cases against the federal government are 
incorrect. See infra at pp.3 5^3 8 . Indeed, 
that precise issue was presented to this 
Court in Saunders v. Claytor, 629 F.2d 596 
(9th Cir. 1980), cert, denied, 450 U.S. 
980 ( 1981), but this Court has not 
resolved the issue to date.



10

without substance. Of course, respondent 
may rely here on any ground in support of 
the judgment below. United States v. New 
York Telephone Co., 434 U.S. 159, 166, n. 
8 (1977); Smith v. Phillips, 455 U.S. 209, 
215, n. 6 (1982).

SUMMARY OF ARGUMENT
I.

A. There is no sovereign immunity or 
statutory bar to awards of pre-judgment 
interest, or its equivalent, against the 
United States where it is necessary to 
provide complete equitable relief. The 
cases the government relies on, as well as 
28 U.S.C, § 2516, involve post-j udgment 
interest, the purpose of which is entirely 
different. Decisions of this Court make 
the distinction clear and hold that 
pre-judgment interest may be made in the 
absence of specific statutory authority.



B. In calculating a reasonable 
attorneys' fee, factoring in amounts to 
compensate for delays in payment is 
essential. Without such an adjustment, a 
prevailing plaintiff's attorney will in 
fact be awarded less than a market rate. 
The result will be that attorneys will be 
discouraged from representing federal 
employees who have Title VII claims. 
Therefore, pre-judgment interest or its 
equivalent is appropriate in awards of 
fees against the United States.

II.
A. The extent of a waiver of sov­

ereign immunity is a matter of Congres­
sional intent. Whether interest on awards 
against the government is permissible must 
be determined from the purpose of the 
particular statutory scheme.

- 11 -



12

B. Both the language of 42 U.S.C. 
§ 2000e-16 and its legislative history 
make it clear that Congress intended to 
remove all sovereign immunity bars to the 
granting of full relief to federal 
employees who have equal employment 
claims. The statute itself explicitly 
provides that attorneys' fees are to be 
awarded on the same basis as against "a 
private person."

ARGUMENT
I.

THERE IS NO BAR TO A DELAY IN PAYMENT 
ADJUSTMENT TO AN ATTORNEYS' FEE AWARD 
AGAINST THE UNITED STATES

This case, in the government's view, 
involves no more than whether the word 
"interest" can be found somewhere in the 
provisions of Title VII that apply to the 
United States. We will demonstrate that:



13

1 . A long line of decisions of this 
Court establishes that, even in the 
absence of specific statutory authoriza­
tion, pre-j udgment adjustments that 
compensate for delay in payment and/or 
deprivation of the use of funds —  whether 
denominated "pre-j udgment interest" or 
otherwise -- are available against the 
government to provide full compensation as 
part of equitable relief.

2. The inclusion of a delay in 
payment factor, as in this case, is a 
necessary component of a reasonable 
attorney's fee. Since the adjustment is 
necessary to provide full compensation, it 
is available here as a matter of leg is- 
lative intent, consistent with the Court' s 
precedents.

3. Alternatively, there is no 
sovereign immunity bar to an award of 
interest against the government in a Title



14

VII action because 42 U.S.C. §2000e-16 is 
a complete abrogation of sovereign 
immunity. Congress' clear intent was to 
ensure that employees of the United States 
will enjoy the same scope of protection 
from employment discrimination as do all 
other employees. Therefore, Title VII jjs 
a statute that authorizes interest as part 
of complete relief.

A. Adjustments For Pre-judgment Delays
In_____Payment May Be Included In
Awards Of Equitable Relief Against 
The Federal Government In The Absence 
of Specific Statutory Authority.

The petitioners argue that decisions 
of this Court, as codified in 28 U.S.C. 
§ 2516, stand as an absolute bar to any 
inclusion of a delay in payment factor in 
calculating the value of a fee award 
because the word "interest" does not 
appear in Title VII. However, a close 
examination of the cases cited by the



15

government demonstrates that they do not 
support this proposition. Rather, 
precisely the opposite is true? the 
government has been led into a fatal error 
by its failure to distinguish between the 
nature and purpose of pre-judgment 
interest, which is involved here, and 
post-judgment interest, which is not.

In General Motors Corp. v. Devex 
Corp. , 461 U.S. 648 (1983), the Court 
explained that, in a patent infringement 
case, an award of prejudgment interest 
from the time that the royalty payments 
would have been received to the time of 
the judgment, "merely serves to make the 
patent owner whole, since his damages 
consist not only of the value of the 
royalty payments but also of the forgone 
use of the money between the time of 
infringement and the date of the judg —



16

ment." Therefore, prejudgment interest 
should ordinarily be awarded. 461 U.S. at 
655-56.

The Court went on:

This very principle was the 
basis of the decision in Waite 
v. United States, 282 U.S. 508 
(1931), which involved a patent 
infringement suit against the 
United States. The patent owner 
had been awarded unliquidated 
damages in the form of lost 
profits, but had been denied an 
award of prejudgment interest. 
This Court held that an award of 
prejudgment interest to the 
patent owner was necessary to 
ensure "complete justice as 
between the plaintiff and the 
United States," id., at 509, 
even though the statute govern­
ing such suits did not expressly 
provide for interest.

461 U.S. at 656 (emphasis added). In 
Waite .itself, Justice Holmes noted that 
the statute at issue granted "'recovery of 
[the plaintiff's] reasonable and entire 
compensation for such use.' We are of



17

opinion that interest should be allowed in 
order to make the compensation 'entire'". 
282 U.S. at 509.9

Waite cites and relies upon a series 
of decisions in eminent domain actions 
holding that the Fifth Amendment's "just 
compensation" clause includes compensation 
for delay between the time of the determi­
nation of market value of the property and 
when the award is made. Seaboard Air Line 
R. Co. v. United States, 261 U.S. 299 
(1923); Brooks-Scanlon Corp. v. United 
States, 265 U.S. 106, 126 (1924); Liggett 
& M. Tobacco Co. v. United States, 274 
U.S. 215 (1927); Phelps v. United States, 
274 U.S. 341 (1927). See also Albrecht v. 
United States, 329 U.S. 599 (1947), and 
cases cited Ld.at 602, n. 4. As explained 
in General Motors Co. v. Devex, supra,
<5 ‘ — — —Interestingly, in Waite the government 

conceded that pre-judgment interest was 
proper.



18

without such an adjustment the patent or 
property owner will not in fact be fully 
compensated for the value of his property 
and the loss of its use. Thus, "no 
specific command to include interest is 
necessary when interest or its equivalent 
is a part of [just] compensation." Seaboard 
Air Line R. Co. v. United States, 261 U.S. 
at 306.10

The situation here is precisely 
analogous. The government contends that 
reimbursement for attorneys' fees is 
limited to the dollar amount that was the 
market value of the services at the time

In contrast, the rule is that interest is 
not available in the absence of specific 
statutory provision when land is taken 
through purchase or a contract rather than 
by an adverse condemnation proceeding. 
See, e,g., United States v. North American 
Transportation & Trading Co. , 253 U.S. 330 
(1920). In the former case the interest 
is on the established amount agreed upon 
as proper compensation, and therefore has 
the character of post-judgment interest. 
In the latter case, the interest is 
pre-judgment and is therefore part of the 
calculation of just compensation.



19

they were rendered. As we will demonstrate 
at length below, however, full compensa­
tion can only be made through an adjust­
ment of that dollar amount to reflect loss 
of value because of the passage of time.

The inclusion of pre-judgment 
interest as part of the award of full 
relief is well established in federal law. 
See Nedd v. United Mine Workers of 
America, 488 P. Supp. 1208, 1216-25 (M.D. 
Pa. 1980) for a scholarly and comprehen­
sive survey of the cases. An award is 
left to the court's sound discretion based 
on the weighing of four factors: (1) 
responsibility for delays in prosecuting 
an action; (2) undoing unjust enrichment; 
(3) compensation of the victim of a legal 
wrong; and (4) other equitable considera­
tions. Id. at 1220-24. The key to 
pre-judgment interest is that it is a part 
of the calculation of the judgment itself,



20

and is included when it is necessary to
provide "reasonable", "entire", or "just" 

11compensation.
Post-j udgment interest, on the other 

hand, rests on an entirely different 
basis. The traditional rationale for 
assessing post-judgment interest was to 
punish a debtor for failing to repay a 
loan or another certain obligation the 
amount of which had become fixed, such as 
a judgment of a court. haycock v. Parker, 
103 Wis. 161, 179, 79 N.W. 327, 332
(1899). See, Note, "Interest in Judgments 
Against the Federal Government: The Need
for Full Compensation," 91 Yale L.J. 297,

11 As Nedd points out, the common law 
distinction between liquidated and 
unliquidated damages does not determine, 
under federal law, whether pre-judgment 
interest is available. 488 F. Supp. at 
1217. The government's suggestion to the 
contrary (Pet. Brief, p. 23, n. 13) is 
both incorrect and inconsistent with its 
position that fee and back pay awards 
against private employers may be adjusted 
for delay in payment.



21

300-1 (1981). The no-interest rule 
developed when interest was thus viewed as 
a penalty. Sovereign immunity barred an 
award of interest since the government had 
to give its specific consent to being 
penalized. As this Court explained:

Whenever interest is allowed 
either by statute or by common 
law, except in cases where there 
has been a contract to pay 
interest, it is allowed for delay 
or default of the debtor. But 
delay or default cannot be 
attributed to the government. It 
is presumed to be always ready to 
pay what it owes.

United States v. Sherman, 98 U.S. 56 5, 
567-8 (1878).

Thus, the 1819 Attorney General's 
opinion from which the no-interest rule 
derives involved interest on a claim in a 
pre—determined amount. The opinion notes, 
"Interest is in the nature of damages for 
withholding money which the party ought to 
pay, and would not or could not." 1 Op.



22

Atty. Gen. 268 (1819). Indeed, even the 
opinions of the attorney general upon 
which the government relies recognize that 
in some instances interest is recoverable 
where it is necessary for full compensa­
tion, e.g . , where a "claimant shall have 
paid interest; in which case, indeed, 
interest becomes strictly a portion of the 
principal of his claim." 2 Op. Atty. Gen. 
390, 392 (1830). See also, 5 Op. Atty. 
Gen. 1 38 ( 1 849); 5 Op. Atty. Gen. 226 
(1850). United States v. Sherman also 
recognizes the distinction, noting, "the 
interest is no part of of the amount 
recovered. It accrues only after the 
recovery has been had." 98 U.S. at 567.

Similarly, virtually all of the cases 
cited by the petitioners at pages 13—15 of 
their brief involved the award of ordinary 
post-judgment interest. They simply 
apply the rule that a penalty for failure



23

to pay an established debt could not be 
imposed on the government without its 
consent. And, as the government concedes 
here, 28 U.S.C. § 2516(a) and its prede­
cessors, barring interest on "claims 
against the United States" in the absence 
of contract or specific statutory authori­
zation, did no more than codify the rule 
established by the attorney generals' 
opinions and the post-judgment interest 
cases.

Thus , it can be seen that the
aovernment has failed to recognize the
distinction between ordinary interest of 
the post-j udgment kind contemplated by 28 
U.S.C. § 2516, which serves as a penalty 
or as income for the use of money fol­
lowing a delay in the satisfaction of a 
judgment, and prejudgment interest (or 
other similar factors) which represents 
part of the calculation of full relief in



24

the first instance. The cases upon which 
the government relies involve the former 
type of interest. This case involves the 
latter.

B . The Inclusion Of A Factor To Compen­
sate For Pre-judgment Delays In 
Payment Is A Necessary Component In 
Calculating A Reasonable Attorney’s 
Fee.

Section 2000e-5(k) provides that the 
court, in its discretion, shall award a 
reasonable attorney's fee. The lower 
courts have held, so far without excep­
tion, that in civil rights cases compen­
sation for delay in payment must be

1 2included in a reasonable fee. The

See, e.g., Copeland v. Marshall, 641 F. 2d 
at 892-93? InstitutionaTTzed~Juveniles v. 
Secretary ofHPublic Welfare, 758 F.2d 897 
(3rd Cir. 1985); Graves v. Barnes, 700 
F.2d 220, 224 (5th Cir. 1983); Gautreaux 
v. Chicago Housing Authority, 690 F.2d 
601, 612 (7th Cir. 1982); Jorstad v. IDS 
Realty Trust, 643 F.2d 1305, 1313 (8th 
Cir. 1981); Ramos v. Lamm, 713 F.2d 546, 
555 (10th Cir. 1983); Johnson v. Univer- 
sity Colleqe of the University of Alabama, 
706 F72d 1205, 1210-11 (11th Cir. 1983).



25

government has not directly challenged the 
correctness of those decisions insofar as 
fees are to be calculated against every 
other employer except itself. Neverthe­
less, it is essential to understand why 
such an adjustment is a prerequisite to a 
reasonable fee in order to demonstrate the 
fallacy of the government’s mechanical 
equation of all pre-judgment adjustments 
with post-judgment interest.

The legislative purpose of the various 
civil rights attorneys' fees act statutes 
have been explored at length by this Court
in recent decisions and need not be
repeated in 1 3detail here. Suffice it to
say that a key concern of Congress was

See also "Counsel Fees in Public Interest 
Litigation," Report By the Committee on 
Legal Assistance, 39 The Record of the 
Association of the Bar of the City of New 
York 300, 318 ( 1984).
Hensley v. Eckerhart, 461 U.S. 424 
(1983); Blum v. Stenson, U.S. , 
79 L.Ed.2d 891 (1984).

1 3



26

that if the fees that were available were 
insufficient to attract the private bar, 
there would not be an adequate level of 
private enforcement of Title VII and the 
other civil rights acts. As this Court 
noted in its seminal decision in Newman v. 
Piggie Park Enterprises, 390 U.S. 490 
(1968) the resources of the federal 
government itself were simply insufficient 
for the level of enforcement necessary to 
end the problem of racial discrimination 
in our society. Thus, the statute provided 
fees to ensure that "private attorneys 
general" would furnish the essential level 
of private enforcement.

The problem is even more acute when 
the government is a defendant in a Title 
VII case for, as has been noted in another 
context, there is no public attorney 
general to bring actions on discrimina­
tion claims of federal employees. Parker



27

v . Cali f ano, 561 F.2d 320, 331 (D.C. Cir.
1977). Only private parties may bring
such actions and, therefore, without the
full involvement of the private bar the
statute will not be enforced.

In the legislative history of the
Civil Riqhts Attorneys Fee Act of 1976
Congress expressed these concerns at
length. Thus, there is a consistent
theme that unless fees are sufficiently
attractive to attact the private bar there

1 4will be insufficient enforcement.
The legislative history of the Fees

Act is replete with comparisons between
the situations of plaintiff's attorneys
and defendant's attorneys in civil rights 

1 5cases. Ordinarily a defendant, particu- 14 15

14 See S. Rep. No. 94-1011 (94th Cong. 2d
Sess. , 1976), 2-5; H. Rep. No. 94-1558
(94th Cong. 2d Sess., 1976), 2-3).

15 H. Rep. No. 9 4-1558, supra at 7; The 
Effect of Legal Fees on the Adequacy of 
Representation, HearingsBefore the 
Subcommittee' on "Representation of~Citizen-



28

larly when it is a public agency, has
available far greater resources than the

1 6ordinary civil right litigant. Indeed, 
this case is paradigmatic: a single
middle-class federal employee faced with 
the full array of the legal and technical 
resources of the Library of Congress and 
the Department of Justice.

Such plaintiffs typically cannot pay 
attorney's fees at all or, as here, only 
a limited amount. Thus, the attorney must 
look to the possible award of fees in the 
future for compensation. If the eventual 
award is not sufficiently equivalent to 
fees the attorney could have obtained 
through other types of practice at the 
time the services are rendered, there will 
be a "negative incentive to move away from *

Interests of the Committee on the Judi­
ciary, United States Senate, 93rd Cong., 
1st Sess. at 84; 834-36 (1973).

^  H. Rep. No. 94-1558, supra at 7.



29

civil rights litigation and to concentrate
efforts on more profitable aspects of the

. „ 1 7practice.
The disincentives are particularly 

strona for the typical civil riqhts 
lawyer, who tends to be a. single practi­
tioner or in a small firm. Given the 
realities of paying off the massive loans 
incurred to obtain a law degree and to set 
up practice, paying rent, staff salaries, 
and having enough left over to live on, 
taking on a complex civil rights case must 
be economically feasible for such a 
lawyer.

To give an example, assume an 
attorney in 1975 with the choice of 
accepting: (1) a fee-paying client whom
he could bill at his or her established 
market rate of S80 per nour, monthly; or 17

17 Counsel Fees In Public Interest Litiga-
TTonT op7~cit. supraT n7~~T27 at 318,
3*25-26.



30

(2) a civil rights client for whose case 
he or she would receive no fees until a 
court award five years later in 1980. If, 
in 1980, the lawyer received only the same 
$80 per hour, he or she would have to be 
extraordinarily altruistic to take on 
client number two, wait five years, and 
receive an $80 per hour devalued by 
inflation and the loss of the use of that 
money. There must be some basis to 
encourage him or her to take the second 
client over the first or Congress' intent 
will be thwarted entirely.

In order for the lawyer to be paid 
at a rate ecu ivalent to the $80 market 
rate in 1975 he or she must be able to 
receive $ 1 22.40 per hour in 1980.^ This 
larger amount will do no more than 
compensate the lawyer at the same effec- 

1 6 A simple calculation based on the Consumer 
Price Index is set out in detail in 
appendix II to this Brief at pp. 2b-3b.



31

tive rate as he or she would have
received in 1975 dollars. Even that would
not cover the full value of the money, for
the lawyer (or fee-paying client) has lost
the value of the use of that money in the
interim, and has suffered attendant cash

1 Qflow problems. ' Accordingly, the 10% 
adjustment per year ordered by the 
district court on the basis of the rate
available on Treasury bonds, is the least

20that counsel was entitled to.

For example, consider what counsel would 
have had to spend to borrow sufficient 
money to pay his or her 1975 bills in 
reliance on a fee to be awarded in 1980. 
With commercial interest rates in the 8 to 
15% range, eighty 1975 dollars would have 
cost about $155 by 1980.
Of course, the court should have compoun­
ded the interest rather than simply 
multiplying it by the number of years 
passed. The court's mathematical error, 
however, only results in a difference of 
about $2.50 per hour in the government's 
f avor.



32

Put in another way, paying the 
attorney S80 per hour in 1980 would be the 
same as if he or she had been paid $52 in 
1975.21 Since the lesser amount is substan­
tially below the established market rate, 
it can not, a fortiori, be a reasonable 
fee under this Court's decision in Blum v.
Stenson, ___ U.S. ___, 79 L.Ed.2d 891
(1984).

Unfortunately, it is not unusual in 
civil rights cases, particularly in Title 
VII cases involving the federal govern­
ment, for the entire process from the 
beginning of the administrative process
through final decision in court on the

22merits, to take many years. Many of

21 See Appendix II to this Brief at p. 3b.
For example, present counsel are involved 
in one case against the Postal Service 
begun by the filing by an administrative 
complaint in 1971 and which was filed in 
court in 1972. The case did not go to 
trial until 1982, and a decision adverse 
to plaintiffs was reversed by the court of 
appeals in 1985. The case is now back in



33 -

these cases began in the mid-1970's and 
the impact of the high rate of inflation 
in the latter part of that period was 
severe.

Congress was aware of the problem of
delay in payment when it enacted the 1976
Pees Act. Thus, it contemplated interim
fees in appropriate cases because civil

73rights litigation was often protracted.

the trial court for further proceedings. 
If plaintiffs were to win on the merits in 
1986 there would be potential entitlement 
to attorneys’ fees going back as far as 
1972. See, Griffin v. Carlin 755 F.2d 
1516 (11th Cir. 1985). Griffin is not 
unusual. See, Chisholm vT United States 
Postal Service, 665 P.2d 482 (4th Cir. 
1981 ) ( nine years from administrative 
complaint to final disposition of merits); 
Saunders v. Claytor, 629 F. 2d 596 (9th 
Cir. 1980 ) ("six years between illegal 
d i scharge and award of back pay and 
attorneys’ fees); Shultz v. Palmer (No. 
85-50) (eight years betwee'n initial charge 
and award of fees on that portion of the 
case that was settled).
H. Rep. No. 94-1558, supra at 8. The 
legislative history of the Equal Employ­
ment Opportunity Act of 1972 also reflects 
Congress' awareness of the limited 
resources of Title VII plaintiffs and the 
problem of time delays attendant to such



34

As one court has noted, the risk of 
financial drain will discourage the 
bringing of Title VII suits and defendants 
"may be tempted to seek victory through an
economic war of attrition against the
plaintiffs." James v. Stockham Valves &
Fitting Co. , 559 F. 2d 310, 358-59 (5th
Cir. 1977).

Thus, the reasons discussed supra at 
pp. 15-20 that make pre-judgment interest 
ordinarily available in patent cases apply 
with full force to awards of attorneys' 
fees, since the impact of delay is the 
same. Full compensation cannot be
achieved unless the value of the "forgone 
use of the money" between the time fees 
are incurred "and the date of the judg- 
ment" (General Motors Corp. v. Pevex, 461

litigation. Sen. Rep. No. 92-415 (92d 
Cong. 1st Bess., 1971) p. 17.



35

U.S. at 656) is taken into account.' Just 
as in a patent infringement case,, denying 
pre-judgment interest to a prevailing 
Title VII plaintiff "not only undercompen­
sates [the employee] but also may grant a 
windfall to the [discriminator] and create 
an incentive to prolong litigation." 461 
U.S. at 655 n. 10.

For similar reasons, the Court should 
reject the government's contention that a 
rule that fees may be adjusted for delay 
in payment would be incongruous because 
it is "settled law," that backpay awards 
cannot be so adjusted. (Pet. Brief, pp. 
20-21). There are three things wrong with 
this argument. First, if anything is

"24 'This is the case whether the client has 
paid the attorney as the case progressed, 
or whether the fee was delayed in whole or 
in part until the action was successfully 
concluded. In the former instance, the 
plaintiff will not be made whole unless 
compensated for delay; in the latter, the 
attorney will not otherwise receive a 
reasonable fee.



36

"settled" it is that nothing is "settled
law" until this Court has spoken on the 

25question. This Court has never deter­
mined whether the lower courts have been 
correct in holding that back pay awards 
against the federal government cannot be 
adjusted for delay in payment. See, Schlei 
and Grossman, Employment Discrimination 
Law, 1214 n. 175 (2d Ed. 1983).

Second, it is clear that the princi­
ples enunciated in General Motors Corp. v. 
Devex,(GMC) supra, and Waite v. United 
States, supra, apply fully to back pay 
awards. As GMC makes clear, "the standard 
governing the award of prejudgment
interest . . . should be consistent with
Congress' overriding purpose of af-
_ _

See, e♦g . , Alyeska Pipeline Service v. 
Wilderness Soc., 421 U.S. 240, 270, n. 46 
(1975) (overruling thirteen lower court 
decisions on attorneys' fees) and Team- 
sters v. United States, 431 U.S. 324, 378 
n. 2 (1977) (overruling more than thirty 
decisions by six courts of appeals).



37

fording . . . complete compensation." 461 
U.S. at 655. That purpose is to place the 
patent owner "in as good a position as he 
would have been in" if there had not been 
a violation. Ibid. This purpose is, of 
course, precisely the same purpose 
Congress had when it provided for equi­
table make-whole relief in the form of 
back pay in Title VII cases. Compare GMC 
v. Devex, 461 U.S. at 655-656 {prejudgment 
interest necessary to "make the patent 
owner whole" and to ensure "complete 
justice between the plaintiff and the 
United States") with Albemarle Paper Co. 
v. Moody, 422 U.S. 405, 418 (1975) (back 
pay an equitable remedy necessary to "make 
persons whole for injuries suffered on 
account of unlawful employment discrimi­
nation" and "to secure complete justice").



38

Third, as we will now demonstrate, 
Congress intended by § 2000e-16 to 
abrogate sovereign immunity in its 
entirety in Title VII actions against the 
government. Therefore, federal employees 
are entitled the same full relief with 
regard to both attorneys' fees and back 
pay as are all other employees.2^

26 The government's asserted dichotomy 
between back pay as benefiting the 
discriminated against employee and 
attorneys' fees as benefiting the lawyer 
is also simply wrong. The provision that 
fees are to be paid by the defendant is 
for the benefit of the prevailing civil 
rights plaintiff just as much as is the 
provision of back pay. Congress and this 
Court recognize that without the possibil­
ity of fee-shifting, attorneys would not 
be available; without attorneys there will 
be no civil rights plaintiffs to recover 
back pay. See Newman v. Piggie Park 
Enterprises, Inc., supra. For those 
clients who can pay fees, their recovery 
is as much make whole relief as is the 
recovery of back pay.



39

II.
SECTION 717 OP THE EQUAL EMPLOYMENT 
OPPORTUNITY ACT OP 1972 IS A COMPLETE 
ABROGATION OF SOVEREIGN IMMUNITY IN 
EMPLOYMENT DISCRIMINATION CASES.
A. Congressional Intent Is Determinative

Of The Extent Sovereign Immunity Is
Waived By A Particular Statutory
Scheme.

The government relies mechanically on 
cases decided at a time when sovereign 
immunity was viewed as an absolute and 
impenetrable bar to actions brought 
against the federal government. More 
recent decisions of this Court, on the 
other hand, establish that sovereign 
immunity is a disfavored doctrine and that 
conaressional waivers of it will be 
construed liberally. Thus, in Franchise 
Tax Board of California v. United States
Postal Service, ____ U.S. ____, 81 L.Ed.2d
446 (1984) this Court reaffirmed a line of 
cases that have interpreted liberally "sue 
and be sued" language as constituting the



40

total abrogation of sovereign immunity. 
8 1 L.Ed . 2d at 451. The lower courts have 
correctly held that such language encom­
passes an abrogation of the bar to an 
award of interest in a Title VII case. 
See, Nagy v. United States Postal Service, 
773 F.2d 1190 (11th Cir. 1985).

To what extent the sovereign immunity 
of the federal government has been waived 
by a particular statutory scheme depends, 
of course, on the intent of Congress. 
Indeed, this proposition is firmly 
established by the very cases relied upon 
by petitioners. Thus, for example, in 
Boston Sand Co. v. United States, 278 U.S. 
41 (1928), the Court did not simply rest
on the absence of the word "interest" from

27the private act in question. Rather, the 
decision by Justice Holmes carefully 
scrutinized the context of the statute. It

27 42 Stat. 1590, ch. 192 (5-15-22)



41

concluded that Congress did not intend to 
"put the United States on the footing of a 
private person in all respects." Id. at 
47.

In Standard Oil Co. v. United States, 
267 U.S. 76 (1925), in contrast, the Court 
did find the United States liable for 
interest under a statute that again was 
silent on the subject. There, the United 
States acted as if it were a private 
insurer; therefore, it had without more 
consented to be treated as a private 
insurer. Id. at 79. As a result, 
interest could be obtained even though it 
was not expressly provided for by statute. 
Thus, the rule established by the deci­
sions of this Court is that the presence 
or absence of a particular phrase or word 
is not dispositive. Rather, one must look



42

to the intent of Congress as evidenced by 
both the language and purpose of the 
particular statutory scheme involved.

As we have explained in our Brief in 
Opposition to the Petition for Writ of 
Certiorari at pages 17-23, the decisions 
embodying the no-interest rule dealt with 
narrow and specific Acts, leases, and 
contracts in regard to which the United 
States was acting in its sovereign and 
governmental capacity. By 42 U.S.C. 
§ 200Oe-16 (§ 717 of the Equal Employment 
Opportunity Act of 1972), in contrast, 
Congress had the specific and clear intent 
that governmental agencies, in their 
capacities as providers of employment 
opportunities, would have the same status 
as all other employers, private, state and 
local , covered under the broad and 
comprehensive provisions of Title VII.



43

Indeed, Congress intended that the federal 
government serve as a model for all other 
employers because:

The Federal service is an area 
where equal employment opportun­
ity is of paramount signi­
ficance . . . .  Accordingly 
there can exist no justification 
for anything but a vigorous 
effort to accord Federal 
employees the same rights and 
impartial treatment which the 
law seeks to afford employees in 
the private sector.

House Report No. 92-238 (92d Cong. 1st
Sess. , 1971), pp. 22-23; see also Sen.
Report No. 92-415 (92d Cong. 1st. Sess.
1971) pp. 12-13.

B . Congress Intended To Waive All
Sovereign imm'unity*_Bars To The Award 
O F" Complete Relief In' Title VlT 
Cases

In the Equal Employment Opportunity 
Act of 1972 Congress used, if anything, 
even clearer language to evidence an 
intent to abrogate sovereign immunity



44

totally than the phrase "sue and be sued." 
Not only has it provided in the statute 
that an action against the federal 
government will be governed by precisely
the same relief provisions that govern

2 8actions against private employers, but it
has provided specifically that the

government will be liable for fees "the

same as a 29private person." It has,

moreover, stated explicitly in the

legislative history of the Act that
federal employees will "have the full

42 U.S.C. § 2000e-16(d):
The provisions of section 2000e-5(f) 
through (k) of this title, as 
applicable, shall govern civil 
actions brought hereunder.

See Chandler v. Roudebush, 425 U.S. 840, 
8 4 6-48 ( 1976) for the meaning of the 
phrase "as applicable." For the reasons 
stated there, the phrase cannot be 
construed as limiting the clear language 
of 2000e-5(k).
42 U.S.C. § 2000e-5(k) , one of the 
provisions incorporated by reference by 
§ 2000e-16(d).



as arerights available in the courts
granted to individuals in the private

30sector under Title VII."
Strikingly absent from the govern­

ment's brief is any substantial discussion
31of the Act's legislative history. 

Similarly striking is the absence of any 
reference whatsoever to the prior deci­
sions of this Court discussing the history 
and purpose of the Act. This Court has 
held that § 2000e-16 provides federal 
employees with a "careful blend of * 3

30 Sen. Rep. No. 92-415 (92d Cong., 1st
Sess., 1971), reprinted in Subcommittee on 
Labor, Senate Commitee on Labor and Public 
Welfare, "Legislative History of The Equal 
Employment Opportunity Act of 1972" 
(hereinafter "Legislative History") at 
425.

3  ̂The only citation in its brief, at p. 19, 
to the legislative history is to the 
entire lengthy compendium cited supra, n. 
30. The government simply asserts that it 
could find nothing in that substantial 
book that casts any light on the issue 
before the Court, presumedly because it 
could not find the magic word interest 
therein.



46

administrative and judicial enforcement 
3 2powers" intended "to accord federal

33employees the same right[s]" enjoyed by 
other employees. This was accomplished by 
providing that 42 U.S.C. § 2000e-5(f)-(k), 
the provisions relating to relief for 
non-federal employees, govern the
provision of relief to federal employees. 
Brown v. General Services Administration, 
425 U.S. 820, (1976), squarely held that:

Sections 706(f) through (k), 42 
U.S.C. §§ 2000e-5(f) through 
2000e-5(k) . . . .  which are 
incorporated "as applicable" by 
§ 717(d), govern such issues as 
venue, the appointment of 
attorneys, attorneys' fees, and 
the scope of relief.

425 U.S. at 832 (emphasis added).

Brown v. General Services Administration, 
425 U.S. 820, 833 ( 1976) .
Chandler v. Roudebush, 425 U.S. 840, 848 
( 1976) .

33



47

Crucial to an understanding of the 
intent of Congress when it passed 42 
U.S.C. §2Q00e-16 is the background of that 
statute and the specific, underlying 
problem it addressed. Existing sovereign 
immunity doctrine had served as a bar both 
to the recovery of full relief in the 
administrative process and to the pursuit 
of such relief in court.34 Congress passed 
§ 200Qe-16 to overcome that bar entirely.

When Congress enacted Title VII of 
the Civil Rights Act of 1964, it did not 
include the United States within the 
definition of employer. However, it did 
include a proviso that employment deci­
sions of the government were to be free of 
discrimination and entrusted to the

34 See Schlei & Grossman, Employment Discri­
mination Law, Chap. 33, "Federal Employee 
’Litigation”  (2d Ed. 1983), for a summary 
of the history of the 1964 and 1972 Acts 
and of the Civil Service Reform Act of 
1978 as they relate to federal employee 
discrimination claims.



48

President the power to implement that 
35proviso. Subsequently, Executive Orders

1 1 246 and 1 1 478 were issued along with
implementing regulations enacted by the

3 6then Civil Service Commission.
The regulations provided administra­

tive procedures and certain remedies to 
federal employees for discrimination in 
employment. However, the scope of relief 
available was severely limited because of 
an opinion of the Comptroller General that 
back pay could be awarded for a discrimi­
nation claim only insofar as it was
permitted under the Back Pay Act (5 D.S.C. 

37§ 5596(b)). Thus, a federal employee who 35 36 37

35 P.L. 88-352, § 701(b).
36 5 C.P.R. Part 713 (1967). These regula­

tions, as amended, are now found at 29
C.P.R. Part 1613.

37 Testimony of Irving Kator, Hearings Before 
the General Subcommittee on Labor of the 
House Committee On Education And Labor on 
H.R. 1746, March 3, 4, and 18, 1971, p. 
365.



49

succeeded in challenging a discharge could 
receive the back pay he had been denied 
thereby, while an employee who successful­
ly challenged the denial of a promotion on

3 8the ground of discrimination could not.
The underlying basis for the Comptroller
General’s opinion was that without an
explicit waiver of sovereign immunity by
Congress, the only relief available for
discrimination claims was that available
under existing statutory authority.

With regard to the availability of a
judicial remedy, there was a split in the
courts. While the Court of Claims held
that there was a right to bring an action

39based on discrimination, the Eighth

See, United States v. Testan, 424 U.S. 392 
( 1976), for a discussion of the distinc­
tion between discharge and promotion 
claims under the Back Pay Act in a case 
that does not involve a discrimination 
claim.
Chambers v. United States, 451 F. 2d 1045 
(Ct. Cl. 1971).

39



50

Circuit in Gnotta v. United States, 415 
P. 2d 1271 (8th Cir. 1969), held that 
sovereign immunity precluded such an 
action and that the various statutes upon 
which such a claim might be based did not 
constitute a sufficient waiver of sov­
ereign immunity.

Thus, as this court has already held
in Brown v. GSA, one of the central
concerns discussed in the hearings and
committee reports involving § 2000e-16
were sovereign immunity bars to relief for
federal employees asserting claims of
discrimination. Thus, witnesses urged
that Congress must act to ensure the

40availability of complete relief. Repre­
sentatives of the Civil Service Com-

See, e.g . , testimony of Hon. Walter E. 
Fauntroy, Hearings Before the Subcommittee 
on Labor of the Senate Committee on Labor 
and Public Welfare on S.2515, S.2617, and 
H.R. 1746, Oct. 4, 6, and 7, 1971, at p. 
206.



51

mission, while acknowledging limitations 
on the relief they could grant because of 
the Comptroller General's ruling, attemp­
ted to assure Congress that there was no
sovereign immunity bar to judicial

i ■ p 41 relief.
The Senate Committee, however, noted 

that "the testimony of the Civil Service 
Commission notwithstanding . . . [i]n many
cases the employee must overcome a U.S. 
Government defense of sovereign immunity" 
and that "the remedial authority of the 
Commission and the courts has also been in 
doubt."* 42 Thus, it was made explicit in

4 Testimony of Irving Kator, Hearings cited 
supra, n. 37, pp. 319-20,* Testimony of 
Irving Kator, Hearings cited supra, n. 40, 
p. 296.

42 Legislative History at 425. As noted by 
the government in its brief in Brown v. 
GSA, supra, "Ultimately, the Committees 
concluded that judicial review was not 
available at all or that access was 
doubtful and that some forms of relief 
were definitely foreclosed." Brief for 
Respondents in No. 74-768, p. 24.



52

the legislative reports that a central
purpose of § 2000e-16 was specifically to
remove sovereign immunity bars to relief
for federal employees, both in the

43administrative process and m  court.
With regard to the administrative

process, Congress specified that the Civil
Service Commission (now the Equal Employ-

44ment Opportunity Commission) could grant
45back pay and all other relief necessary.

Legislative History at 425.
Jurisdiction over federal equal employment 
opportunity matters was transferred to the 
EEOC by the President's Reorganization 
Plan No. 1 of 1978. 43 F.R. 28971 ( 1978).

Section 2000e-16(b) provides that the 
Commission may enforce 2000e-16(a) 
"through appropriate remedies, including 
reinstatement or hiring of employees with 
or without back pay, as will effectuate 
the policies of this section . . . ." The 
section-by-analysis accompanying the 
conference report explained:

The Civil Service Commission would be 
authorized to grant appropriate 
remedies which may include, but are 
not limited to, backpay for aggrieved 
applicants or employees. Any remedy



53 -

The legislative history makes it clear 
that there was no intent to limit the 
relief available to that specified in the 
statute. Rather, Congress recognized the 
impossibility, in the context of Title 
VII, of predetermining all the possible 
types and scope of relief that might be 
appropriate. Thus, at the same time
Congress was enacting § 2000e-16 it was 
expanding the language of the relief 
provisions of Title VII in 42 U.S.C.

needed to fully recompense the 
employee for his loss, both financial 
and professional, is considered 
appropriate under this subsection.

Legislative History at 1851. (Emphasis 
added.) The District Court for the 
District of Columbia interpreted 
§ 2000e-16(b) as authorizing the award of 
attorneys’ fees administratively in an 
employment discrimination case. Smith v. 
Califano, 446 F. Supp. 530 (D.D.C. 1978) . 
Congress authorized the award of fees by 
theMerit Systems Protection Board in EEO 
cases in the Civil Service Reform Act of 
1978, 5 U.S.C. § 7701(g)(2). Subse­
quently, both the MSPB and the EEOC 
adopted regulations for the award of fees 
in EEO cases. 5 C.F.R. § 1201.37; 29
C.F.R. § 1613.271(c).



54

§ 200Oe-5 (g ) . As held by this Court in
Franks v. Bowman Transportation Company, 
424 U.S. 747, 763-66 (1976), the legis­
lative history of the amendment to 
§ 2000e-5(g) makes it clear that the 
"'most complete relief possible'" was to 
be available, unlimited by the enumeration 
in the statute of certain particular 
remedies, 424 U.S. at 764.

When Congress provided a judicial
remedy for federal employees, it seized on
the simple expedient of incorporating the
relief provisions that were applicable to
all other employers into § 2000e-16. Thus,
it first provided that federal employees

46could bring a civil action and then made 
all of the relief provisions applicable to 
private, state, and local government 
employers applicable to actions brought by

46 42 U.S.C. § 2000e-16(c).



55

federal employees. Again, Congress' 
intent to make precisely the same relief 
available to federal employees as is
available to all other employees is
. 48clear.

Thus, the clear language of the 
statute, the legislative history, and the 
entire background and purpose of the 
statute allow no other interpretation than 
that Congress intended to enact a complete 
waiver of sovereign immunity in cases 
raising cl a ims of discriminat ion in
employment against federal agencies. The 
waiver includes allowing attorneys' fees

47

42 U.S.C. § 2000e~16(d).
The Senate Report states, "aggrieved 
employees . . . will also have the full 
rights available in the courts as are 
granted to individuals in the private 
sector under Title VII." Legislative 
History at 425.



56

on the same basis, in the same amount, and
calculated in the same manner as fees

. 49against other parties.

The petitioners' attempt to rely on lower 
court decisions decided under the Equal 
Access to Justice Act is misplaced for a 
number of reasons. (1) The purpose of 
the EAJA is entirely different. It deals 
specifically with typical governmental 
actions and is limited to awarding fees 
only when the positions taken by the 
government were not "substantially 
justified." (2) The EAJA's purpose is 
not to encourage the bringing of litiga­
tion, but rather is to provide some 
measure of reimbursement to those who must 
defend against unjust governmental 
actions. (3) The EAJA limits fees to $75 
per hour and thus does not purport to 
provide full or just compensation for 
expenditures of attorneys fees. There­
fore, particularly with regard to the 
inclusion of pre-judgment interest, it has 
no relevance whatsoever to the calculation 
of a "reasonable," i ,e., fully compensa­
tory, fee. (4) Congress explicitly 
provided that the EAJA did not alter, 
limit, modify, repeal, invalidate, or 
supersede any other statute, including the 
civil rights acts, which provided for fees 
against the United States. P.L. 96-481, 
§ 206. This language was inserted in the 
statute precisely because of concerns that 
the EAJA might be relied upon to restrict 
fee awards in civil rights cases.



57

Despite the evidence of the clear 
intent of § 2000e-16, following its
enactment the government persisted in 
arguing that sovereign immunity limited 
the relief available to federal employees, 
including the recovery of attorneys5 fees. 
Indeed, the government's first argument 
was that no fees were available against 
the government whatsoever because of 
sovereign immunity. In fact, the govern­
ment made the same "fortuity" argument 
that it now makes at p. 20 of its brief 
here: that is, when Congress incorporated
42 U.S.C. § 2000e-5(k) into § 2000e-16 it 
really had no intent to impose on the 
United States liability for fees when a 
government employee prevailed in a Title 
VII action where a federal agency was the 
defendant.'^ The government eventually
_ _

Letter from Irving Jaffe, Acting Attorney 
General, to Senator John V. Tunney, May 6, 
1975, printed in 2 CCH Employment Prac­
tices Guide 1f5327 ( 1976). See Ralston,



58 -

5 1abandoned this argument in 1975 and
finally, in 1977, the Attorney General of 
the United States officially disavowed any 
reliance on arguments based on sovereign 
immunity. He stated:

In a similar vein, the 
Department will not urge 
arguments that rely upon the 
unique role of the Federal 
Government. For example, the 
Department recognizes that the 
same kinds of relief should be 
available against the Federal 
Government as courts have found 
appropriate in private sector 
cases, including imposition of 
affirmative action plans, back 
pay and attorney's fees. See 
Copeland v. Usery, 13 EPD 
1(11,434 (D.D.C. 1976); Day v. 
Mathews, 530 F.2d 1 083 (D.C. 
Cir. 1976); Sperling v. United 
States, 515 F.2d 465 (3d Cir. 
1975). Thus, while the Depart­
ment might oppose particular 
remedies in a given case, it 
will not urge that different 
standards be applied in cases

"The Federal Government as Employer: 
Problems and Issues in Enforcing the 
Anti-Discrimination Laws", 10 Ga. L. Rev. 
717, 719 n. 13 ( 1976) .

51 Ibid.



59

against the Federal Government 
than are applied in other 
cases.

Memorandum of Attorney General Griffin B. 
Bell for United States Attorneys and 
Aqency General Counsel (Aug. 31, 1977), p. 
2.”

This directive was in effect when the 
services at issue here were rendered and 
when the district court entered its award; 
to the knowledge of counsel for respon­
dent, it has never been withdrawn. If the 
position taken in the present case 
constitutes a repudiation of that an­
nounced in 1977, we urge that it is in 
error. As we have shown, Congress
intended to and in fact did confer "upon 
Federal employees . . . the same substan­
tive . . . [and] procedural rights . . .

52 The memorandum was published in 2 CCH 
Employment Practices Guide 1! 5046 (1977). 
For the convenience of the Court, the 
memorandum is reproduced in Appendix III 
to this Brief at pp. 1c-3c.



60

as it has conferred upon employees . . . 
in private industry and in state and local 
governments." (Ibid.) This Court should 
affirm that the United States has "no 
lesser obligations with respect to equal 
employment opportunities than those it 
seeks to impose upon private and state and 
local government employees." (Ibid.) The 
rights afforded federal employees include 
the recovery of attorneys' fees and back 
pay in their entirety, including both pre- 
and post-j udgment interest and other 
necessary components of full make whole
relief.



61

CONCLUSION
For the foregoing reasons, the 

decision of the court below should be 
affirmed.

Respectfully submitted,

JULIUS LeVONNE CHAMBERS 
CHARLES STEPHEN RALSTON 

(Counsel of Record)
99 Hudson Street, 
16th Floor
New York, N.Y. 10013 
(212) 219-1900

Attorneys for Respondent



APPENDIX I

Statutes Involved



la

42 U.S.C. S 2000e-16

(a) All personnel actions 
affecting employees or 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 as defined in 
section 105 of title 5, United States Code 
(including employees and applicants for 
employment who are paid from nonappro- 
priated funds), in the United States 
Postal Service and the Postal Rate 
Commission, in those units of the Govern­
ment of the District of Columbia having 
positions in the competitive service, and 
in those units of the legislative and 
judicial branches of the Federal Govern­
ment having positions in the competitive 
service, and in the Library of Congress 
shall be made free from any discrimination



- 2a -

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 subsection (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 responsibili­
ties 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 department and agency 
and each appropriate unit 
referred to in subsection (a) of



this section shall submit in

(2 )

(3)

The head
or unit

order to maintain an affirmative 
program of equal employment 
opportunity for all such 
employees and applicants for 
employment;
be responsible for the review 
and evaluation of the operation 
of all agency equal employment 
opportunity programs, perio­
dically obtaining and publishing 
(on at least a semi-annual 
basis) progress reports from 
each such department,, agency, or 
unit; and
consult with and sol icit the 
recommendations of interested 
individuals, groups, and 
organizations relating to equal 
employment opportunity, 

of each such department, agency„ 
shall comply with such rules,



4a

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 discrimination 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 employ­
ees to advance so as to perform 
at their highest potential; and

(2) a description of the qualifica­
tions in terms of training and 
experience relating to equal 
employment opportunity for the 
principal and operating
officials of each such depart­
ment, agency or unit responsible 
for carrying out the equal



5a

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 discri­
mination based on race, color, religion, 
sex or national origin, brought pursuant 
to subsection (a) of this section, 
Executive Order 1 1478 or any succeeding



6a

executive orders, or after one hundred and 
eighty days from the filing of the initial 
charge with the department, agency, or 
unit or with the Civil Service Commission 
on appeal from a decision or order of such 
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. (July 2, 1964, P. L. 88-352, 
title VII, § 717, as added Mar. 24, 1972, 
P.L. 92-261 , § 11, 86 Stat. 111, as 
amended, Feb. 15, 1980, P.L. 96-191,
§ 8(g), 94 Stat. 34.)



- 7a -
28 U.S.C. g 2516(a)

Interest on a claim against the 
United States shall be allowed in a 
judgment of the United States Claims Court 
only under a contract or Act of Congress 
expressly providing for payment thereof, 
(Based on title 28, U.S.C., 1940 ed., 
§ 284 and section 226 of title 3, U.S.C.!, 
1940 ed. , Money and Finance (Sept. 30, 
1890^ ch. 1126, § 1, 26 Stat. 537; Mar. 3, 
1911, ch. 231, § 177, 36 Stat. 1141; Nov.

921 , ch . 136, S 1324(b) 9 42 Stat.
June 2, 1924, ch., 234, § 1020, 43
346; Feb. 13, 1925 , ch. 229s' § 3 i c) ,
a t . 939; Feb. 26, 1926, ch . 27, §§

1 1 1 7, 1 200, 44 Stat. 119, 125; May 29,
1928, ch. 852, § 615(a), 45 Stat. 877;
June 22, 1936, ch. 690, § 808, 49 Stat.
1746).)



APPENDIX II
Calculation of Loss of Value 

Through Inflation



1b

A method for adjusting dollar 
amounts for the effect of inflation is set 
out in Hohenstein, "Subtract Inflation 
from Your Income, Prices and Profits,” 
Legal Economics 35 (ABA Section on 
Economics of Law Practice, Summer 1978). 
The method sets up a formula based on the 
consumer price index (CPI), which uses 
1 967 as the base year. The following 
table sets out the CPI for each year 
through 1984.



2b

Table

Year CPI

1967
1968
1969
1970
1971
1972
1973
1974
1975
1976
1977
1978
1979
1980
1981
1982
1983
1984

1 0 0 . 0
104.2 
109.8
116.3
121.3
125.3
133.1
147.7
161.2
170.5
181.5
195.3
217.7 
247.0
272.3
288.6
297.4
307.6 , d
yn- ̂  - I

Using the example in the text, to 
convert 1975 dollars into their 1980 
equivalent, the following ratio is used 
1 980 CPI/1 9 7 5 CPI = 247.0/161.2 = 1.53. 
The $80 per hour 1975 rate is then 
multiplied by 1.53; $80 X 1.53 - $122.40.

Source: Consumer Price Index for Urban 
Wage Earners and Clerical Workers, annual 
averages and changes, 1967-84. United 
States Department of Labor, Bureau of 
Labor Statistics, Monthly Labor Review. 
May, 1985, p. 69.



3b

Therefore, fees awarded in 1980 would have 
to be calculated at $122.40 per hour 
simply to provide the same dollar equiva­
lent as if the fees had been paid in 1975.

To convert the other way, i ,e,, from 
1980 dollars to their 1975 equivalent, the 
converse ratio is used. 1975 CPI/1980 CPI 
= 161,2/247.0 = .65. Therefore, an award 
of $80 per hour in 1980 would be the same 
as if fees had been paid at a rate of 852 
per hour in 1975. ($80 X .65 = $52.).



APPENDIX III

Memorandum of Attorney General Griffin B. Bell 
for United States Attorneys and Agency General 

Counsel (Aug. 31, 1977)



MEMORANDUM FOR UNITED STATES ATTORNEYS 
AND AGENCY GENERAL COUNSELS

Re: Title VII Litigation

In 1972» as additional evidence of our Nation's deter­
mination to guarantee equal rights to all citizens. Congress 
amended Title VII of the Civil Rights Act of 1964 to provide 
Federal employees and applicants for Federal employment with 
judicially enforceable equal- employment rights. The Department 
of Justice, of course, has an important role in the_affirmative 
enforcement of rights under the Act, in both tne private and 
public sectors. To effectively discharge those responsibilities, 
we must ensure that the Department of Justice conducts its 
representational functions as defense attorneys for agencies 
in suits under the Act in a way.that.will be_supportive of and 
consistent with the Department's broader obligations _ to 
enforce equal opportunity laws. This memorandum is issued 
as part of what will be a continuing effort by the Department 
to this end.

Congress, in amending Title VII, has conferred upon Federal 
employees and applicants the same substantive right to be free . 
from discrimination on the basis of race, color, sex, religion, 
and national origin, and the same procedural rights to judicial 
enforcement as it has conferred upon employees and applicants . 
in private industry and in state and local governments.
Morton v. Mancari, 417 U . S .  535 (1974) ; Chandler v_,__ Rouges us h ,
425 U.S. '8ZJT"OT"76) . And, as a matter of policy, the Federal 
Government should be willing to assume for its own agencies no 
lesser obligations with respect to equal employment opportunities 
than those it seeks to impose upon private and state and local 
government employers.

In furtherance of this policy, the Department, whenever 
possible, will take the same position in interpreting Title VII 
in defense of Federal employee cases as it. has taken and will 
take in private or state and local government employee cases.
For example, where Federal employees and applicants meet the



- 2 -
%

criteria of Rule 23 of the Federal Rules of Civil Procedure, 
they are also entitled to the same class rights as are 
private sector employees. Albemarle Paper Co. v. Moody,
422 U.S. 405s 414 (1975). FuFtEer, ene Department of 
Justice has acquiesced is the recent rulings of the 
Fifth and Sixth Circuit Courts of Appeals that it is^ 
unnecessary for unnamed class members to exhaust their ' 
administrative remedies as & prerequisite to class 
membership. Eastland v. TVA, 553 P.2d 364 (5th Cir. 1977); 
Williams v. TVA, F.ld’ Cir. 1977). Consequently,
we"will"no longer maintain that each class member in a 
Title VI1 suit must have exhausted his or her administrative 
remedy.

In a similar vein, the Department will not urge 
arguments that rely upon the unique role of the Federal 
Government. For example, the Department recognizes that 
the same kinds of relief should be available against the 
Federal Government as courts have found appropriate in 
private sector cases, including imposition of affirmative 
action plans, back pay and attorney's fees. See Coseland 
v. Userv, 13 EPD 111,434 (D.D.C. 19 76.); Dav v. MajEKews, 
SJ0~W7Td 1083 (D.C. Cir. 1976) ; Sperling v. UnitecT'States,
515 F.2d 465 (3d Cir. 1975). Thus, while the Department 
might oppose particular remedies in a given case, it will 
not urge that different standards be applied in cases against 
the Federal Government than are applied in other cases.

The Department, in other respects, will also attempt 
to promote the underlying purpose of Title VII. For example, 
the ,1972 amendments to Title VII do not give the Government 
a right to file a civil action challenging an agency finding 
of discrimination. Accordingly, to avoid any appearance on 
the Government’s part of unfairly hindering Title VII law 
suits, the Government will not attempt to contest a, final 
agency or Civil Service Commission finding of discrimination 
by seeking a trial de novo in those cases where an employee 
who has been succesiTulTTn proving his or her claim before 
either the agency or the Commission files a civil action 
seeking only to expand upon the remedy proposed by such 
final decision.

- 2c



The policy sec forth above does noc reflect, and should 
noe be interpreted as reflecting, any unwillingness on the 
part of the Department to vigorously defend, on the merits, 
claims of discrimination against Federal agencies where 
appropriate. It reflects only a concern that enforcement of 
the equal, opportunity laws as to all employees be uniform and consistent.

In_addition to the areas discussed above, the Department 
of Justice is now undertaking a review of the consistency of 
other legal positions advanced by the Civil Division in 
defending Title VII cases with those advocated by the Civil 
Rights Division in prosecuting Title V I I  cases. The objective of 
this review is to ensure that, insofar as possible, they will 
be consistent, irrespective of the Department’s role as either 
plaintiff or defendant under Title V I I .  As a pare of this 
review, "the Equal Employment Opportunity Cases" section of 
the Civil Division Practice Manual (§3-37), which contains 
the Department's position on the defense of Title V I I  actions 
brought against the Federal Government, is being revised.
When this revision is completed, the new section of the Civil 
Division Practice Manual will be distributed to all 
United States Attorneys* Offices and.will replace the present 
section. Each office should rely on the revised section of 
the Manual for guidance, on legal arguments to be made in Title VII 
actions. In order to ensure consistency, any legal arguments 
which are not treated' in the Manual should be referred to the 
Civil Division for review prior to their being advocated to the court.

This policy statement has been achieved through the 
cooperation of^Assistant Attorney General Barbara Babcock 
or the Civil Division who is responsible for the defense of 
these Federal employee cases, and Assistant Actoraev General 
Drew Days of the Civil Rights Division who is my principal 
adviser on civil rights matters. They and their Divisions 
will continue to work closely together to assure that this 
policy is effectively implemented.

(SrIffin b. snr

August 31, 1977

jC -
DO J-1977-03