Foster v. Mumford Brief for Appellant

    " T — — *  W & L

UNITED STATES COURT OF APPEALS

'  S O T ? *

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
MELVYN R* LEVENTHAL 
ERIC SCHNAPPER 
BILL IANN LEE 

Suite 2030 
10 Columbus Circle 
New York 10019

20015



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 
No. 76-1487

GEORGE V. FOSTER,
Appellant,

v.
L. QUINCY MUMFORD,Librarian of Congress,

Appellee.

On Appeal From The United States District court 
For The District Of Columbia

CERTIFICATE REQUIRED BY RULE 8(c)
OF THE GENERAL RULES OF THE UNITED 

STATES COURT OF APPEALS FOR 
THE DISTRICT OF COLUMBIA CIRCUIT

The undersigned, counsel of record for appellant 
George VZ Foster certifies that the following listed parties 
have an interest in the outcome of this case. These repre­
sentations are made in order that judges of this Court may 
evaluate possible disqualification or recusal.

1. George V. Foster, plaintiff in the action below 
and appellant here.

2. L. Quincy Mumford as Librarian of Congress, head of 
the Library of Congress, defendant in the
action below and appellee here.



3. Successors to Mr. Mumford in the office of 
Librarian of Congress.

BILL LANN LEE Attorney of Record for 
Appellant

>



Statement of Issue Presented .......................... 1
Reference To Parties And Rules ........................... 2
Statement Of The Case ................................. 2
Statement Of Pacts ......................................  9

1. Denial Of Training Opportunities .............  9
2. Denial Of Supervisory Experience And

Responsibility.............................  11
3. Discriminatory Selection Procedures ............  13

Argument:
Introduction ..................................... 15
I. Title VII Provisions For Attorney's Pees 

And Costs Are To Be Given A Broad And 
Liberal Construction In Order To Encourage 
Private Enforcement of Title VII.............    21

II. Title VII Requires That Federal Employees,
As Prevailing Parties, Are Entitled To 
Recover Reasonable Attorney’s Fees And 
Costs In Administrative Proceedings...........  25
A. Attorney's Fees Under 42 U.S.C.

§ 2000e-5 (k). As Made Applicable
By § 2000e-16 (d) .........................  26
1. Statutory Language ...................  27
2. Legislative History ..................  35

B. Attorney's Fees Under 42 U.S.C.
§ 2000e-16(b) ............................  44

III. Title VII Requires That Federal Employees,
As Prevailing Parties, Are Entitled To 
Recover Attorney's Fees And Costs In Admin­
istrative Proceedings Which With Judicial 
Proceedings Are Part And Parcel Of The Same 
Litigation................................... 51

TABLE OF CONTENTS
Page

1



Table of Contents (cont'd) Page

A. Attorney's Pees And Costs In The Title VII
Enforcement Scheme ........................... 53

B. Circumstances Of The Litigation..............  59
Conclusion ............................................ 63
Appendix For Statutes .................................  la

*
TABLE OF AUTHORITIES

Cases:
Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974).. 20,27,28,

40
Albermarle Paper Co. v. Moody, ___ U.S. ___,

45 L.Ed.2d 280 (1975) ......................  24,42,43,46
Alyeska Pipeline Co. v. Wilderness Society, 421

U.S. 240 (1975) ........................... 22,26,38,45
Barrett v. U. S. Civil Service Commission, 11 FEP

Cases 1089 (D. D.C. 1975) ........................  20
Bowie v. Weinberger, D. D.C. No. 74-1801 (June 17, 1975) 25
Bradley v. Richmond School Board, 416 U.S. 969 (1974) .. 24

* Brown v. General Services Administration, ___ U.S. ___,
44 U.S.L.W. 4704 (June 1, 1976) .........  15,18,20,30,46,

54,55
Carrion v. Yeshiva University, ___ F.2d  _, 11 EPD

2 10,919 (2d Cir. 1976) ..........................  24 *
* Chandler v. Roudebush, 44 U.S.L.W. 4709 (June 1,

1976) .................................. 15,16,20,29,35,
38,46,48,54

Copeland v. Brennan, 9 EPD 2 10,127 (D. D.C. 1975) .... 31
Day v. Matthews, ___ U.S. App. D.C. ___, 530 F.2d

1083 (D.C. Cir. 1976) ............................  20

* V



J.

Drev; v. Liberty Mutual Ins. Co., 480 F.2d 69 (5th
Cir. 1973) ....................................... 25,29

Cases (cont'd): Page

* Evans v. Sheraton Park Hotel, ___ U.S. App.
503 F. 2d 177 (D.C. Cir. 1974) .......

D.C. ___,
.....  23,24,42,52,
53,58,59,60,62,63

Fitzgerald v. U. S. Civil Service Commission, 407
F. Supp. 380 (D. D.C. 1975) .............  17,44,45,46,51

Fitzpatrick v. Bitzer, ___ U.S. ___, 44 U.S.L.W.
5120 (June 28, 1976) .............................  23

Franks v. Bowman Transportation Co., ___ U.S. ___,
47 L.Ed. 2d 444 (1976) ...........................  43,46

Grubbs v. Butz, ___ U.S. App. D.C. ___, 514 F.2d 1323
(D.C. Cir. 1975) ................................  20,31

*Hackley v. Roudebush, ___ U.S. App. D.C. ___, 520
F.2d 108 (D.C. Cir. 1975) .........  16,20,26,30,31,32,33,

34,35,36,38,42,48,49,54

Hall v. Cole, 412 U.S. 1 (1973) ......................  45,46
Jenkins v. United Gas Corp., 400 F.2d 28 (5th Cir.

1968) ............................................ 39
Johnson v. Georgia Highway Express, Inc., 488 F.2d 714

(5th Cir. 1974) .................................. 23,37
* Johnson v. United States, D. Md. C.A. No. H-74-1343

(June 8, 1976) ................... 17,19,28,30,52,56,61
Koger v. Ball, ___ U.S. App. D.C. ___, 497 F.2d 702

(D.C. Cir. 1974) .................................  20
Lea v. Cone Mills Corp., 438 F.2d 86 (4th Cir. 1971) ... 23,24
Love v. Pullman Co., 404 U.S. 522 (1972) ..............  28
Malone v. North American Rockwell Corp., 457 F.2d 779

(9th Cir. 1972) .................................. 24
Mello v. Secretary of HEW, 8 EPD 3 9620 (D. D.C. 1974) . 52,59

- iii



Morton v. Mancari, 417 U.S. 535 (1974) ...............  15,48
* Newman v. Piggie Park Enterprises, 390 U.S. 400

(1968) .................................. 21,22,24,27,28,
34,37,38,62

Cases (cont'd): Page

Northcross v. Board of Education, 412 U.S. 427 (1973) .. 22,28
♦Parham v. Southwestern Bell Telephone Co., 433 F.2d

* Parker v. Matthews, 11 EPD 5 10,821 (D. D.C. 1976) 17,25,42,56
Patterson v. American Tobacco Co., 9 EPD 1 10,039

(E.D. Va. 1975) .................................. 24
Place v. Weinberger, ___ U.S. ___, 44 U.S.L.W. 3718

(June 10, 1976), vacating and remanding, 497 F.2d
412 (6th Cir. 1974) ..............................  20

Reed v. Arlington Hotel Co., Inc., 476 F.2d 721 (8th
Cir. 1973) ....................................... 24

Sanchez v. Standard Brands, Inc., 431 F.2d 455
(5th Cir. 1970) .................................. 28

Smith v. Kleindienst, ___ U.S. App. D.C. ___, 527
F.2d 853 (D.C. Cir. 1975) (unpublished opinion), 
affirming, 8 FEP Cases 752 (D. D.C. 1974) ..... 17,55,56

Sperling v. United States, 515 F.2d 465 (3d Cir. 1975) 55
Torres v. Sachs, 2d Cir. Nos. 1033, 1034 (June 26,

1976) ......................................... 22,23,28
Turner v. Federal Communications Commission, ___ U.S.

App. D.C. ___, 514 F. 2d 1354 (D.C. Cir. 1975) ....  26
United States Steel Corp. v. United States, 385 F. Supp.

346 (W.D. Penn. 1974), affirmed, 519 F.2d 359
(3d Cir. 1975) ................................... 24

Walker v. Ralston Purina Co., 11 EPD 3 10,812 (M.D.
Ga. 1976) ................................... 25

Williams v. Mumford, ___ U.S. App. D.C. ___, 511 F.2d
363 (D.C. Cir. 1975) ..............................  25,30

iv -



Page
Constitutional Provisions, Statutes 
and Executive Orders;
Fifth Amendment, U. S. Constitution
5 U.S.C. § 7701 ..................
20 U.S.C. § 1617 .................
28 U.S.C. § 1291 .................
28 U.S.C. § 1331 .................
28 U.S.C. § 1343(4) ..............
28 U.S.C. § 2201 .................
29 U.S.C. § 412 ..................
42 U.S.C. § 1973-1(e) ............
42 U.S.C. § 1981 .................
42 U.S.C. § 2000a-3(b) ...........
42 U.S.C. § 2000e et seq..........
42 U.S.C. § 2000e-5 ..............
42 U.S.C. § 2000e-5(f)-(k) .......
42 U.S.C. § 2000e-5(f) .........1.
42 U.S.C. § 2000e-5(g) ...........

*42 U.S.C. § 2000e-5(k) ...........

42 U.S.C. § 2000e-16 .............

*42 U.S.C. § 2000e-16 (b) ..........

42 U.S.C. § 2000e-16(c) 
42 U.S.C. § 2000e-16(d) 

Executive Order 11478 .

..................  4

..................  45

..................  22

..................  9

..................  4

..................  4

..................  4

..................  45

...................... 22

..................  4

..................  21,27

..................  4

.........  27,28,29,34,36

..................  35,36

..................  4,16

..................  43,45
8,16,19,21,25,26,27,28,29,

30,35,36,37,43,46,51,53
.. 1,15,16,18,27,30,35,37,

44
2,18,25,26,30,31,44,45,

47,48,51
..................  18
..........  8,16,26,35,46

..................... 4

- v



5 C.F.R. Part 713 ..................................... 31,33
5 C.F.R. § 713.221(b)(1) .............................. 32
5 C.F.R. § 713.218(c)(2) ................................  32
5 C.F.R. § 713.215 ......................................  32
5 C.F.R. § 713.214(a) ...................................  32
29 C.F.R. § 1601.5 et seq..............................  28
LCR 2010-3.1 ............ .............................  2,33
LCR 2010-3.1, § 5 ................................   32
LCR 2010-3.1, § 7 .......................................  32
LCR 2010-3.1, § 8 ..................................... 32
LCR 2010-3.1, § 14 ..............'.....................  31
Appendix to LCR 2010-3.1, II .......................... 32,33
Appendix to LCR 2010-3.1, IV & VI ...................... 33
Appendix to LCR 2010-3.1, VII ......................... 33

Other Authorities:
FPM Bulletin No. 713.41, October 10, 1975 .............  32
Hearings on S. 2515, S. 2617, H.R. 1746 Before the 

Subconun. on Labor of the Senate Co nun. on Labor 
and Public Welfare, 92d Cong., 1st Sess...........  50

•
In re Brown, U. S. Civil Service Commission Appeals

Review Board Decision of November 8, 1974 ........  32
Sape & Hart, Title VII Reconsidered: The Equal Employment 

Opportunity Act of 1972, 40 Geo. Wash. L. Rev. 824 
(1972) ........................................... 35

S. Rep. No. 94-295, on S. 1279, 94th Cong., 1st Sess. in
2 U.S. Code Cong. & Admin. News...................  23

Regulations: Page

- vi -



Other Authorities (cont'd) Page
Subcomra. on Labor and Public Welfare, Legislative 

History of the Equal Employment Opportunity
Act of 1972 (Comm. Print 1971) .......  35,36,37,38,42,43,

48,49,50
U. S. Commission on Civil Rights, The Federal Civil 

Rights Enforcement Effort— 1974, Vol. V, To 
Eliminate Employment Discrimination (July 1975) ... 33 *

* Authorities chiefly relied upon are marked by asterisks.



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 
NO. 76-1487

GEORGE V. FOSTER,
Appellant,

v.
L. QUINCY MUMFORD,Librarian of Congress,

Appellee.

On Appeal From The United States District court 
For The District Of Columbia

BRIEF FOR APPELLANT

Statement Of Issue Presented 
This civil action was brought by a black federal 

employee against his employer agency for subjecting him 
to racially discriminatory employment practices, pursuant 
to § 717 of Title VII of the Civil Rights Act of 1964, as 
amended, 42 U.S.C. § 2000e-16. The issue presented is: 

Whether a federal employee, as a prevailing 
party, is entitled under Title VII to recover 
reasonable attorney's fees and costs for legal 
representation in administrative and judicial 
proceedings authorized by Title VII?



This case was not previously before this Court under the same 
or similar title.

Reference To Parties And Rules 
The rulings below are united States District Judge John 

Lewis Smith, Jr.'s memorandum and order of April 7, 1976 
denying plaintiff's motion for attorney's fees and costs and 
order of April 12th dismissing the action, set forth in 
Appellant's Appendix at p. (R. 8) and p. (r . 9), respectively. 
The names of all parties to the litigation are identified by the 
caption on appeal.

Statement Of The case
On March 27, 1974, Mr. George V. Foster, a black bindery

foreman, WP-19, filed an administrative complaint of racial
discrimination in employment practices with his employer, the
Library of Congress in Washington, D. C. (R. 7) (A. ), under
procedures authorized by § 717 (b) of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16(b) and

1/enforcement regulations of the Library of Congress. Mr. 
Foster's charge alleged that two white supervisors had discrimi­
nated against him on the basis of his race by placing him in a 
deadend position and refusing to promote him over the course 
of 10 years. The complaint specifically cited a denial of

1/ Library of Congress Regulation 2010-3.1, Resolution of 
Problems, Complaints, Charges of Discrimination in Library 
Employment and Staff Regulations Under the Equal Employment 
Opportunity Program, dated January 2, 1974 is attached hereto 
as Appendix A in Appendix To Brief For Appellant.

- 2 -



promotion to Printing Officer, GS-12, on March 7, 1974. The 
Library gave notice of receipt and acceptance of the complaint 
April 2d (R. 7) (A. ). However, a month later the Library
Equal Opportunity Coordinator cancelled Mr. Foster's complaint 
for failure to prosecute, citing several purported technical 
reasons (R. 7) (A. ). The notice of cancellation informed
Mr. Foster that he could appeal the decision within the agency 
to the Deputy Librarian and, if dissatisfied, then file a civil 
action in an appropriate U. S. district court within 30 days of 
final agency decision. Mr. Foster did appeal (r . 7) (A. ),
and on May 17th the Deputy Librarian stated that he concurred 
with the cancellation (r . 7) (A. ). The agency decision

2/ The Complaint states that, inter alia:
[Mrs. Ida Wilson and Mr. Elliot Finley], 

with malice, stated under oath, that I had 
reached my peak of learning, then placed me 
in a position that offers no opportunity for 
advancement. These persons completely 
ignored my qualifications and picked a white 
woman who does not have adequate experience 
or background for a position I believe I am more qualified for. * * *

The act I consider discriminatory is that 
although I have felt that I have been dis­
criminated against since 1965, the final 
proof was the selection on recommendation of 
a much less qualified applicant (Hildegarde 
DeNoia) for the position of "Printing Officer."

* * *
. . .  I have not been allowed to grow in 

my present position, while other staff members 
(white) have been allowed to assume responsi­
bility of various sections to allow for this growth (R. 7) (A. ).

3



concluded that Mr. Foster's further recourse was to file a 
civil action not later than 30 days after the date of the letter. 
Mr. Foster obtained private counsel, Shalon Ralph, Esq., June 
13th.

Thereupon, on June 17, 1974, Mr. Foster, through counsel,
filed an action, C. A. No. 74-919, in the District court for the
District of Columbia for declaratory and injunctive relief.
The complaint sought to enjoin the Librarian of Congress from
maintaining practices, policies, customs and usages which
discriminate against plaintiff because of his race with respect
to promotions and conditions of employment in violation of,
inter alia, Title VII of the Civil Rights Act of 1964, as

3/amended, 42 U.S.C. § 2000e et seq. (R. 1) (A. ). The
complaint requested declaratory relief, back pay, reasonable
attorney's fees and costs, and such other and further relief
which may appear reasonable and just (r . 1) (a . ).

As a result of the filing of the action, the Deputy
Librarian of Congress, on July 8th vacated and rescinded the
agency decision of May 17th, and remanded the case to the EEO

4/
Office for further investigation and recommendation (R. 7)
(A. ). After obtaining the authorization of Mr. Foster's

3/ Jurisdiction was invoked pursuant to 42 U.S.C. § 2000e-5(f), 
28 U.S.C. § 1331, 1343(4) and 2201 to enforce the Fifth Amendment, 
Title VII, 42 U.S.C. § 1981 and Executive Order 11478.
4/ The district court specifically found that the Library 
vacated its previous dismissal of plaintiff's administrative 
complaint and remanded the matter for further investigation 
"[a]s a result of the lawsuit" (R. 8) (A. ) (emphasis added).

(continued)

- 4 -



counsel, the United States Attorney prepared, signed and filed 
on July 30th a stipulation staying all further proceedings in 
the action for a period of 60 days following the date of a final 
administrative decision by the Library of Congress (R. 3) (A ). 
The stipulation was approved August 5th (R. 3) (A. ).

Counseling and investigation were then conducted by 
the Library EEO Office. The investigative report dated November
13, 1974 (R. 7) (A. ) found, inter alia, that white staff
irembers have been transferred or detailed to various sections 
or units to allow for their growth to more responsible positions 
while blacks have not, that the white employee chosen for Printing 
Officer was preselected and not the most qualified applicant, and 
that Mr. Foster has not been given any training which will allow

4/ (Continued)
The district court relied on a memorandum of July 1st by the 
Library General counsel, entitled "Foster v. Mumford, U.S.D.C. D.C 
Civil Action No. 74-919," (R. 7) (A. ) that termination of
Mr. Foster's complaint for failure to prosecute was procedurally 
erroneous and that the Equal Opportunity Office had committed 
several other procedural errors as well. The memorandum concluded

Consideration and re-consideration of the above 
led me to assess the Library's chances before 
the U. S. District Court as less than 50/50.
The administrative record in this matter is 
small, but the Court will look at it for direction.
That record contains the above procedural errors 
and information which smacks of a less than 
proper procedure in the recommendation for the 
vacancy in question, and that recommendation 
brought about this complaint. (R. 7) (A. )

The General Counsel recommended that Mr. Foster's complaint be 
reinstated and investigated at the agency level. The district 
court also cited the Deputy Librarian's memorandum of July 8th 
(R. 7) (A. ), accepting the General counsel's review of the
administrative file "in connection with Mr. Foster's decision 
to file a civil action."



him an opportunity for advancement (R. 7) (A. ). The report
recommended, inter alia, that a GS-11 position be established, 
thatMr. Foster be given extensive preparatory training, and that 
Mr. Foster be placed in the position upon completion of training 
(R. 7) (A. ). On November 29th the Deputy Librarian declined
to establish the recommended position subject to further study 
(R. 7) (A. ). On December 16th, Mr. Foster, through counsel,
requested reconsideration of the proposed decision because the 
report overlooked the fact that discrimination had occurred 
over a period of 10 years and the fact that Mr. Foster was 
qualified for the position of Printing Officer. The request 
for reconsideration sought the following remedial action:
Foster's promotion to Printing Officer in place of the incumbent, 
back pay, further relief including training and preferential 
work assignments, and attorney's fees including the cost of 
bringing suit in U. S. district court (R. 7) (A. ). Subse­
quently, on February 6, 1975, the Deputy Librarian proposed that 
Mr. Foster be provided with counseling on availability of 
training opportunities, but declined to establish a GS-11 position 
for Mr. Foster or to appoint him to the Printing Officer, GS-12 
position (R. 7) (A. )\ Mr. Foster was advised that he could
request an administrative hearing conducted by an outside 
examiner followed by a final agency decision by the Librarian or 
seek a final agency decision by the Librarian without a hearing. 
Mr. Foster, thereupon, requested a hearing.

A four-day hearing was held April 22-25, 1975 (R. 4, 2d 
Att. at 2) (A. ). Mr. Foster was represented by his private

6



counsel; management (i. e., the two white supervisors named in 
Mr. Foster's administrative complaint) was represented by two 
attorneys employed by the Library of Congress Examining Division 
and the Labor Relations Management office. Mr. Foster, the two 
white supervisors, seven complainant's witnesses and three other 
management witnesses testified and were subject to cross-exami­
nation. Both sides submitted exhibits. The hearing transcript 
is in four volumes. The hearing examiner's findings and 
recommended decision were sent to the Librarian for a final 
agency decision on July 31, 1975 (R. 4, 2d Att.) (A. ).

The hearing examiner found that, inter alia, Mr. Foster 
was denied promotion to Printing Officer because of his race;
Mr. Foster was subjected by supervisors to discrimination in 
training, assignments and recommendation for promotions over 
the course of 10 years; and Mr. Foster and other WP employees 
(most of whom are black) were denied training opportunities 
because of race (R. 4, 2d Att. at 20) (A. ). The report
recommended that, inter alia, Mr. Foster be promoted to a position 
equal in status, responsibilities, duties and pay to Printing

and receive back pay commencing on the date he originally 
would have been selected for that position. The report also 
recommended that (1) the Librarian explore the extent of his 
authority to hire qualified minorities and women in job cate­
gories where they are underrepresented or underutilized;
(2) the Librarian consider establishing a merit promotion system 
which provides for evaluation of candidates and the assignment of

5/ Attached hereto as Appendix B in Appendix to Brief for 
Appellant.

7



a score resulting from weighted factors? and (3) the Library 
Equal Opportunity Coordinator take certain steps to assure that
all management officials and supervisors understand and implement
their obligations under Title VII and Library regulations. The

through counsel, submitted memoranda on the findings
6/

and recommended decision, but the hearing examiner refused on
7/October 6, 1975, to alter his findings and recommendations.

On November 11, 1975, the Librarian of Congress accepted 
the complaint examiner's recommendation to promote Mr. Foster 
to an equivalent GS-12 position, stated that he would establish 
such a position and granted back pay as recommended (R. 4, 1st 
Att.) (A. ). With respect to the other recommendations, these
were either accepted or stated that these policies were in 
effect and would be implemented. The findings were also 
accepted subject to some modifications.

Thereafter, Mr. Foster moved in district court January 28,
1976 for an award of attorney's fees and costs under Title VII, 
pursuant to 42 U.S.C. § 2000e-5(k) made applicable to the federal 
government by 42 U.S.C. § 2000e-16(d) (R. 4) (A. ). Accompanying
the motion was a statement of costs and fees and a supporting 
affidavit by counsel for costs and fees in the administrative 
and judicial proceedings described above totaling $12,146 (R. 4)0/
(A. ). After the filing of a partial administrative record

6/ Attached hereto as Appendix C in Appendix to Brief For Appellant
7/ Attached hereto as Appendix D in Appendix to Brief for Appellant
8/ The administrative record filed by defendant Library of 
Congress includes documents as of February 8, 1975 only. Thus,
Prshearing documents, the four—volume hearing transcript (Appendix 
B), memoranda and comments of parties on the hearing examiner's 

and recommended decisions (Appendix C), and the hearing
f̂ Cf^'ner,s ^ecisi°n of October 6th refusing to alter the oricrinal findings and recommended decision (Appendix D) are not in the record.

- 8 -



and a hearing (A. ), the district court denied the motion
for attorney's fees and costs in a memorandum and order filed 
April 7th (R. 8) (A. ). On April 12th, the action was dismissed
as moot in accordance with the April 7th order (R. 9) (A. ).

On April 23, 1976, notice of appeal was filed from the 
April 7th and 12th orders on the question of attorney's fees and 
costs. This Court has jurisdiction to hear the appeal of this 
important issue concerning the enforcement of Title VII by federal 
employees under 28 U.S.C. § 1291.

Statement Of Facts
The factual basis of the finding of employment discrimination 

and the granting of relief in the form of promotion, back pay and 
systemic reform of Library of Congress employment policies and 
practices is not in dispute. The underlying facts concerning 
(1) denial of training opportunities, (2) denial of supervisory 
experience and responsibility and (3) discriminatory selection 
procedures are set forth in the findings and recommended decision 
of the hearing examiner (R. 4, 2d Att.) (A. ); and the Librarian'
final agency decision (R. 4, 1st Att.) (A. ).

1. penial Of Training opportunities
Mr. George V. Foster was first employed by the Library 

in 1946 as a messenger (R. 4, 2d Att. at 3) (A. ). He was
a supervisor of as many as 12 employees from August 1954 to 
December 1965 in the Duplicating unit in the Aerospace Tech­
nology Division, and received excellent appraisals by super­
visors (R. 4, 2d Att. at 5) (A. ). Since 1965, however, Mr.
Foster has progressed from WP—12 to WP-19 only by virtue of



reclassification in jobs as bindery assistant in the Office of 
the Secretary and the bindery foreman in the Central Services 
Division (R. 4, 2d Att. at 14) (A. ).

Mr. Foster, along with other predominately black WP employees, 
was adversely affected by unequal opportunity to participate in 
training courses, including supervisory training used in determining 
qualifications for supervisory promotions, as compared to pre­
dominately white GS employees in this period (R. 4, 2d Att. at 21)
(A. ). Thus the investigative report found that there were
16 employees at GS—7 or above in the Central Services Division 
of whom 13 were white, and 14 WP employees who earn commensurate 
salaries of whom 12 are black. The 16 GS employees participated in 
89 training courses while the 14 WP employees participated in 
only 3 training courses in the same period. Management was not 
able to give "any valid reason as to why 14 WP employees were 
given only three training courses prior to the filing of the 
instant complaint" (r . 4, 2d Att. at 16) (A. ). The unequal
opportunity was found to be in contravention of Title VII and 
Library regulations requiring "that the agency affirmatively 
take steps to establish training and education programs designed 
to provide a maximum opportunity for employees to advance so 
as to perform at their highest potential" (R. 4, 2d Att. at 19)
(A. ). Management in the Central Services Division was
specifically cited for its failure to recognize its Title VII

9/
obligations (A. ). Mr. Foster was thus found to have
suffered detriment in his chances for advancement. * •

9/ The hearing examiner singled out one of Mr. Foster's super­visors, Mr. Ida F. Wilson:
• • • 1 find that over a period of approxi— mately -̂0 years, Mrs. Wilson, more than anyone

—  ‘ - 10 -



Both the hearing examiner and Librarian found, "The
complainant was denied training opportunities because of his
race and his status as a WP employee." (r . 4, 1st Att., 2d Att.

10/
21) (A. , ). The Librarian concluded:

The complainant was subjected to discrimi­
nation in not being given required training 
courses and in not being provided with other 
training opportunities. The lack of such 
training was a factor in the consideration 
for selection for the position of Printing 
Officer (R. 4, 1st Att.) (A. ) 11/

2. Denial Of Supervisory Experience 
 _____ And Responsibility_______

Although his title was foreman throughout the 10-year
period, Foster was stripped of all supervisory responsibilities
commencing with a plant reorganization in 1964 and was not

9/ (Continued)
else, by her personal philosophies, attitudes, 
and actions, actively and continuously discrimi­
nated against the complainant. Because of her 
critical and pivotal role, it was Mrs. Wilson 
who exerted the most influence on the career of 
the^complainant. She was in a position to approve 
training, assignments, and to effectively recommend' 
promotions. As the record shows, she found no 
justification to do any of these things on behalf of complainant."

With respect to these statements, the Librarian was of the view 
that "I do not necessarily disagree. . . .  [rjather, I feel 
they are not necessary to a determination of this complaint."

11/ The hearing examiner also concluded that "such treatment 
during the 10-year period encapsulating the complaint, greatly 
disadvantaged the complainant and other similarly situated 
employees, the majority of whom were black (R. 4, 2d Att. at 18) (A. ) .

- 11



considered a supervisor by his superiors (R. 4, 2d Att. at 21)
(A. ). Specifically, he was no longer permitted to evaluate
employees, approve leave, take disciplining actions or effectively 
recommend such actions. Traditionally, crafts and trades 
foremen have been recognized as supervisors and part of manage­
ment (R. 4, 2d Att. at 14) (A. ). Mr. Foster's responsibilities
were further decreased when management removed his final responsi­
bility for an in-house printing plant (R. 4, 2d Att. at 15) (A. ).
Nevertheless, Mr. Foster was able to perform some circumscribed 
supervisory duties of great responsibility with respect to 
employees working with sophisticated printing machines and equip­
ment. The investigative report and the Equal Opportunity Office 
had earlier determined that a white applicant1s "[p]reselection 
is . . . indicated by~. . . [a supervisory] detail that allowed 
her to gain a wider knowledge of printing." (R. 7) (A. )
(emphasis added); Mr. Foster's contention that neither he nor 
any other black employee had ever received such details was not 
refuted (r . 7) (A. ) .

The hearing examiner concluded that management "did fail
to sufficiently utilize the knowledge and experience of the

12/
complainant especially in regard to supervision." The
examiner, however, declined to find that management did 
"deliberately place the complainant in a position that offered 
no opportunity for advancement" (R. 4, 2d Att. 21) (A. ).

12/ The Librarian declined to accept this conclusion as "vague 
and not necessary to the disposition of the complaint" in light 
of the finding on training (A. ), but see supra at 10-11 n. 9.

12



3. Discriminatory Selection Procedures
It was also found that Mr. Foster was qualified to perform 

the job of Printing Officer Coordinator GS-12 which became 
available in 1974, but that he had been discriminated against 
in the selection of other employees to the position. Mr. Foster 
and six other Library employees applied for the position in 
Posting 6483 (R. 4, 2d Att. at 3) (A. ). Initially, Central
Services management recommended a white employee, Mrs. Hildegarde 
DeNoia, for the position in February 1974 (R. 4, 2d Att. at 3)
(A. ). The Library Administrative Department reviewed the
applications and determined that Mrs. DeNoia was not the best 
qualified, but Central Services management refused to accept 
anyone but Mrs. DeNoia. An impasse developed and this posting 
was never filled. Rating comparisons of applicants prepared at 
the request of the Administrative Department showed Mrs. DeNoia 
consistently less qualified than several other applicants, 
including Mr. Foster (R. 4, 2d Att. at 8) (A. ). The hearing
examinder concluded "Posting 6483 was prepared in a manner that 
gave preferential treatment to Mrs. DeNoia for the position of 
Printing Officer" (R. 4, 2d Att. at 20) (A. ). Earlier, the
agency investigative report and the Equal Opportunity Office 
had concluded that Mrs. DeNoia was preselected (R. 7) (A ).

During administrative proceedings on the discrimination 
complaint, the Printing Officer's position was reposted May 1974. 
Applicants under the previous posting, including Mr. Foster, 
were automatically considered. As a result, another white 
applicant, not an employee, Mr. John G. Early, was recommended 
by Central Services iriagement and the appointment made. The

13



hearing examiner found that, " [w] ith respect to the second 
posting, the qualifications of Mr. Early were overstated by 
Mrs. Wilson and were subsequently approved by her superiors."
(R. 4, 2d Att. at 20) (A. ). It was further found that,
"[b]y comparison, the qualifications of the complainant were not 
fully evaluated for either the initial or second posting" and 
that, "when the complainant and the other applicants were 
objectively scored, the complainant seemed to improve, as an 
applicant, with each evaluation" (R. 4, 2d Att. at 20) (A. ).
Furthermore, there are grounds to conclude that Mr. Early's 
appointment did not meet threshold regulation standards for the 
position and that his rate of pay was improperly set (R. 4,
2d Att. at 11) (A. ).

The hearing examiner concluded that, "The above actions 
when considered together lead me to conclude that the com­
plainant was denied promotion to the position of Printing

wOfficer because of his race" (R. 4, 2d Att. at 20) (A. ).

13/ The Librarian did not necessarily disagree with conclusions 
on discriminatory selection procedures because it was not necessary 
to a determination in light of his conclusion that lack of training 
was a factor in the consideration for selection for the position 
of Printing Officer (R. 4, 2d Att. at 2) (A. ).

- 14



ARGUMENT

Introduction
This appeal concerns the practical enforcement of § 717

of Title VII of the civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e-16, by federal employees prosecuting claims
of employment discrimination in agency administrative proceedings.
The precise issue is whether federal employees, as prevailing
parties, are entitled to recover resulting attorney's fees and
costs of legal representation in administrative and judicial
proceedings pursuant to Title VII, but the larger question is
whether the administrative-judicial enforcement mechanism created

14/by congress in 1972 will in fact fulfill its purpose of
15/eradicating "entrenched discrimination in the Federal service." 

This is because the government denies that complainant employees 
may recover fees and costs and otherwise limits employees' 
opportunities for legal representation in administrative pro­
ceedings in which agency management officials charged with
discrimination usually have legal representation paid for by the 

16/
agency. If an employee is represented, his representative
is unlikely to be an attorney. Such effective denial of legal 
counsel may well have irrevocable consequences. Although it is 
clear that federal employees are entitled to judicial trials

14/ Brown v. General Services Administration ___U.S. ____, 44
U.S.L.W. 4704, 4707 (June 1, 1976).
15/ Morton v. Mancari, 417 U.S. 535, 547 (1974); Chandler v. Roudebush. 44 U.S.L.W. 4709, 4710 (June 1, 1976).
16/ See infra at 30-32.

15



de novo with possible appointment of counsel and award of
17/attorney's fees and costs for judicial proceedings, most

federal employees will not sue to enforce their rights if
denied them at the agency level. As Judge Wright put it in
Hackley v. Roudebush, ____U.S. App. D.C. ____ , 520 F.2d 108,
140 n. 130 (D.C. Cir. 1975), in the context of trial de novo,

. . .  And although nothing precludes a 
complainant from selecting an attorney 
as his representative during agency 
proceedings. Congress was cognizant of the 
fact that Federal employees often needed 
counsel in these complicated areas, but 
seldom could afford such expenses. . . .
Thus, it may be particularly oppressive 
to bind legally unsophisticated employees 
to complex and difficult choices made 
without adequate assistance at the agency 
level; indeed, the fact that the com­
plaints examiner and EEO counselors need 
have no legal training exacerbates these 
problems since they are not therefore 
sensitive to the problem of preventing an 
unintentional or uninformed waiver of rights 
by complainants. Of course, the agency 
representative (whose primary loyalty is 
to the agency) will more than likely be an 
attorney, thereby aggravating the differential 
between the resources of the agency and those 
of the complainant.

Moreover, administrative records developed under such con-12/ditions are not likely to expedite judicial proceedings.
The issue of the availability of Title VII administrative 

process attorney's fees and costs, to our knowledge, before

17/ 42 U.S.C. §§ 2000e-5(f)(1), 2000e-5(k) are made applicable to § 2000e-16 suits by § 2000e-16(d).
18/ See Chandler v. Roudebush, supra, 44 U.S.L.W. at 4717.

16



no other court of appeals, but the lower court's denial
of fees and costs is in conflict with the decision of this court
approving such an award in Smith v. Kleindienst and recent

20/district court decisions permitting recovery. The lower court's 
refusal to grant attorney's fees and costs in administrative and 
judicial proceedings concluded that, "Although the statute should 
be accorded a liberal construction, see Newman v. piggie park 
Enterprise, 390 U.S. 400 (1968), it should not - absent special 
circumstances - be a vehicle for transforming administrative

19/ The issue arises because the Justice Department has reversed 
its prior policy of acquiescense to award of attorney's fees and 
costs in administrative proceedings under Title VII. The prior 
policy is set forth in Acting Assistant Attorney General Irving 
Jaffe's response to a letter from Senator Tunney, chairman of the 
Subcommittee on Constitutional Rights, dated May 6, 1975, reprinted 
in 2 CCH Employment Practices Guide, New Development 55327. Senator 
Tunney had inquired about the government's "position in opposing 
the award of attorney's fees on the theory that such an award was 
not specifically provided for by the 1972 amendments to Title VII." Jaffe responded that:

In response to your inquiry, I instituted a staff 
review of this position and having carefully considered 
and evaluated the results of that review, I have con­
cluded that the position should be abandoned. The 
United States Attorneys will therefore be instructed 
not to assert that position in any case properly 
brought under the 1972 amendments and to withdraw 
the position from any such cases now pending. We shall, 
of course, continue to address ourselves to appropriate 
issues relating to the reasonableness of amounts so re­
quested and to the court's discretion in making an award.
2 CCH Employment Practices Guide at p. 3611.

Consistent with this policy, the Justice Department did not oppose 
entitlement to the award of attorney's fees and costs for work
in the administrative process in Smith v. Kleindienst, __ U.S. App.
D.C. ___, 527 F.2d 853 (D.C. Cir. 1975) (unpublished opinion),
affirming, 8 PEP Cases 752 (D. D.C. 1974). In Smith, the Justice * 
Department unsuccessfully contested the amount of attorney's fees.
20/ Sees, e.g.. Johnson v. united States. D. Md. C.A. No. H-74-1343 
(June 8, 1976)(Harvey, J.); Parker v. Matthews, 11 EPD § 10,821 
(D.D.C. 1976) (Richey, J.); Fitzgerald v. U.S. Civil Service 
Commission, 409 F. Supp. 380 (D. D.C. 1975) (Bryant, J.).

17



investigations into compensable adversary proceedings."
21/(R. 8) (A. ). The Supreme Court in Brown v. General

Services Administration, supra. 44 U.S.L.W. at 4706-07, decided 
after the district court decision, however, has completely 
undercut the district court's effort to distinguish § 2000e-16 
administrative and judicial proceedings as a basis for denying 
fees and costs; the court construed the statutory enforcement 
scheme as "an administrative and judicial enforcement system" 
(emphasis added) in which § 2000e-16(b) administrative proceedings 
"complement" § 2000e-16(c) judicial proceedings and provide 
overall "balance, completeness, and structual integrity." As 
the Court put it:

The balance, completeness, and structural 
integrity of § 717 are inconsistent with the 
petitioner's contention that the judicial 
remedy afforded by § 717(c) was designed 
merely to supplement other putative judicial 
relief. His view fails, in our estimation, 
to accord due weight to the fact that unlike 
these other supposed remedies, $ 717 does not 
contemplate merely judicial relief. Rather 
it provides for a careful blend of administrative 
and ludicial enforcement powers. 44 U.S.L.W. 
at 4707 (emphasis added).'

Denial of attorney's fees and costs for legal representation 
is the administrative process is therefore wholly inconsistent 
with the § 2000e-16 statutory framework: "It is . . . not
material whether the party seeking the award prevailed at the 
administrative level or at the judicial level. Both are part 
of the same enforcement mechanism established by the statute,"

21/ The district court refused as well to permit recovery of 
fees and costs for any judicial proceedings, even those associated 
with causing the agency to resume processing of the administrative charge, see supra at 4 n. 4.

18



Johnson v. united States, supra, slip opinion at 7.
As set forth more fully in the argument, appellant asserts 

that the lower court's orders should be reversed and the case 
remanded for consideration of awarding reasonable attorney's 
fees and costs under prevailing Title VII law. First, the 
standard for statutory construction of Title VII provisions 
permitting attorney's fees and costs is broad and liberal.
Second. federal employees are entitled to recovery of fees and 
costs for legal representation in the administrative process as 
a matter of course. Consideration of reasonable attorney's fees 
and costs is required by (a) language and legislative history 
of 42 U.S.C. § 2000e-5(k), made applicable by § 2000e-16(d), which 
specifically empowers the district court to grant fees and costs 
"in any action or proceedings under this title;" and (b) language 
and legislative history of 42 U.S.C. § 20OOe-16(b) in which the 
Civil Service Commission generally and the Library of Congress 
in the instant case are given plenary remedial authority, includ­
ing power to award fees and costs. Third, federal employees are 
entitled to recovery of fees and costs pursuant to 42 U.S.C.
§ 2000e-5(h) in the circumstances of the instant litigation in 
which administrative and judicial proceedings were part and 
parcel of the same litigation.

Initially, however, we point out that the government's 
present position opposing attorney's fees and costs in Title 
VII administrative proceedings is but one of many issues defendant 
federal agencies in employment discrimination suits have raised 
in this and other courts to limit the effectiveness of Title 
VII's administrative-judicial scheme. Thus, the government has

19



attempted to (a) deny federal employees' right to allege
Title VII violations in cases pending administratively or

22/judicially at the time the Act became effective; (b) remand
properly filed federal Title VII actions for further administra-

23/tive proceedings; (c) limit federal employees to a review of
24/the administrative record only; (d) permit agencies to refuse

to accept, process and resolve Title VII administrative com-
25/plaints of class and systemic discrimination; (e) deny federal

employees right to bring judicial class actions; and (f) pre­
vent application of Title VII substantive and remedial law to

26/adjudication of discrimination claims. The award of attorney's 
fees and costs- is no less significant than other issues the courts 
have resolved in favor of more vigorous Title VII antidiscrimi­
nation enforcement, guided by the principle that "Congress . . . 
considered the policy against discrimination to be of the 'highest 
priority,1 Alexander v. Gardner-Denver Co.. 415 U.S. 36, 47 (1974).

22/ See, e.g.. Roger v. Ball. __ U.S. App. D.C. ___, 497 F.2d 702
(D.C. Cir. 1974)7 Brown v. General Services Administration, supra,
44 U.S.L.W. at 4705 n. 4; Place v. Weinberger, U.S. ___, 44
U.S.L.W. 3718 (June 10, 1976), vacating and remanding, 497 F.2d 412 (6th Cir. 1974).
23/ See e.g., Grubbs v. Butz, ___ U.S. App. D.C. ___, 514 F.2d
1323 (D.C. Cir. 1975)7 Chandler v. Roudebush, supra.
24/ See, e.g.. Hackley v. Roudebush, supra7 Chandler v. Roudebush, supra.
25/ See, e.g.,Barrett v. U.S. Civil Service Commission. 11 FEP Cases 1089 (DDC 1975).
26/ See, e.g., Day v. Matthews. ___ U.S. App. D.C. ___, 530 F.2d1083 (D.C. Cir. 1976).

- 20



TITLE VII PROVISIONS FOR ATTORNEY'S 
FEES AND COSTS ARE TO BE GIVEN A 
BROAD AND LIBERAL CONSTRUCTION IN 
ORDER TO ENCOURAGE PRIVATE ENFORCE- 
MENT OF TITLE VII.______________

In parts II and III of the argument, appellant demon­
strates why an award of attorney's fees and costs for legal 
representation in administrative and judicial proceedings was 
erroneously not considered. In this part, however, appellant 
discusses the threshold question of the standard of statutory 
construction to be applied to Title VII provisions for attorney's 
fees and costs. The broad and liberal standard required in 
construing the Title VII provisions establishes the precon­
dition for recovery of fees and costs in all phases of administra­
tive-judicial proceedings authorized by Title VII.

In construing the terms of statutory authorizations of
fees and costs, courts look first to the role an award would
serve with the specific enforcement scheme created by the act.
Thus, in Newman v. Piggie Park Enterprises. 390 U.S. 400 (1968), the

21/Supreme Court, considering a narrower but otherwise identical 
provision to § 2000e-5(k) contained in Title II of the Civil 
Rights Act of 1964, 42 U.S.C. § 2000a-3(b), ruled that the 
preeminent purpose of the provision to encourage "private 
attorney general" enforcement required a construction favoring

I.

23/ See infra at 27-28.

- 21



wide availability of attorney's fees.
When the civil Rights Act of 1964 was 

passed, it was evident that enforcement would 
prove difficult and that the Nation would have 
to rely in part upon private litigation as a 
means of securing broad compliance with the law.
A Title II suit is thus private in form only . . . .
If he obtains an injunction, he does so not for 
himself alone but also as a "private attorney 
general," vindicating a policy that Congress con­
sidered of the highest priority. If successful 
plaintiffs were routinely 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. Congress therefore enacted the provision 
for counsel fees — not simply to penalize litigants 
who deliberately advance arguments they know to be 
untenable but, more broadly, to encourage individuals 
injured by racial discrimination to seek judicial 
relief under Title II~ 390 U.S. at 401-02 29/(emphasis added).

The principle recently has been affirmed in Alyeska Pipeline 
Co. v. Wilderness Society, 421 U.S. 240, 263 (1975) that in 
statutes such as Title II, "Congress has opted to rely heavily 
on private enforcement to implement public policy and to allow 
counsel fees so as to encourage private litigation."

The same is true of Title VII provisions. The Fifth Circuit, 
for instance, has declared, "This Court, as part of its obligation

28/

28/ In Newman, the issue was the substantive standard for determin­
ing when awards were warranted. The Court held that: "It follows 
[from the purpose of encouraging private enforcement] that one 
who succeeds in obtaining an injunction under that Title should 
ordinarily recover an attorney's fee unless special circumstances 
would render such an award unjust," notwithstanding express 
statutory language that "the court, in its discretion may allow 
the prevailing party" fees and costs (emphasis added).
29/ Compare Northcross v. Board of Education, 412 U.S. 427, 428 
(1973) (construing similar provision in the Emergency School Aid 
Act of 1972, 20 U.S.C. § 1617) ("The similarity of language . . . 
is, of course, a strong indication that the two statutes should 
be interpreted pari passu"); Torres v. Sachs. 2d cir. Nos. 1033,
1034 (June 26, 1976) (construing similar provision in the 1975 
extension of the Voting Rights Act of 1965, 42 U.S.C. § 1973-]Je)).

- 22



r

'to make sure that Title VII works,' has liberally applied the
attorney's fees provision of Title VII, recognizing the importance
of private enforcement of civil rights litigation." Johnson v.
Georgia Highway Express. Inc.. 488 F.2d 714, 716 (5th Cir. 1914):
Lea v. cone Mills Corn.. 438 F.2d 86, 88 (4th Cir. 1971); Evans
v. Sheraton Park Hotel. ___U.S. App. D.C. ____, 503 F.2d 177,
189 (D.C. Cir. 1974). This policy is particularly significant in
federal employee Title VII actions. Federal employee Title VII
complainants are not merely private attorneys as are employees in
Title II and private sector Title VII cases, they are the only
attorneys general under the § 2000e-16 enforcement scheme. Suits
by the Justice Department or the Equal Employment Opportunity
Commission (hereinafter "EEOC") are not authorized; indeed, the
Department of Justice must defend such suits. The underlying
principle is that "in employment and public accommodations cases,
and other civil rights cases, Congress depends heavily upon
private citizens to enforce the fundamental rights involved" so
"[f]ee awards are a necessary means of enabling private citizens

30/to vindicate these Federal rights" whose availability is to
be liberally construed. Cf. Fitzpatrick v. Bitzer, ___U.S.-____, 44
U.S.L.W. 5120 (June 28, 1976) (Title VII attorney's fees and 
back pay awards against state government employees are a proper 
exercise of the Fourteenth Amendment and do not violate the 
Eleventh Amendment).

30/ S. Rep. No. 94-295, on S. 1279, 94th Cong. 1st Sess. 41-43, 
reported in 1975 2 U.S. Code Cong. & Admin. News 808-09 and cited in Torres v. Sachs, supra, slip opinion at 4433 n. 1.

- 23



The principle of liberal construction of civil rights 
attorney's fees provision is now deeply entrenched. In Newman
v. Pigqie Park, the Court had read the provision to require that
successful plaintiffs "should ordinarily recover an attorney's
fee unless special circumstances would render such an award
unjust," 390 U.S. at 402, notwithstanding statutory language11/apparently limiting awards "in [the court's] discretion."
The attorney's fees provision in the Emergency School Act was 
given retroactive effect in Bradley v. Richmond School Board,
416 U.S. 969 (1974). However, it is in the employment discrimi­
nation area that courts have made clear that the availability 
of attorney's fees extencb to the full reach of the statute.
Thus, attorney's fees are available under § 2000e-5(k) in "actions
and proceedings" growing out of other than Title VII enforcement 

32/suits, to defendants as well as plaintiffs as "prevailing
22/party," to a "prevailing party" prior to the conclusion of the 

34/litigation, a "prevailing party" who wins on the merits butIS/is not himself entitled to relief, a "prevailing party" who

31/ See Albemarle Paper Co. v. Moody, 45 L.Ed.2d 280, 295 (1975).
32/ See, e.g.. United States Steel Corp. v. united States. 385 
F. Supp. 346 (W.D. Penn. 1974), affirmed. 519 F.2d 359 (3d Cir. 1975).
33/ See, e.g., United States Steel Corp. v. United States, supra;
Carrion v. Yeshiva University, ___ F.2d ___, 11 EPD 5 10,919
(2d Cir. 1976).
34/ See, e.g., Malone v. North American Rockwell corp., 457 F.2d 
779 (9th Cir. 1972); Patterson v. American Tobacco Co., 9 EPD 
3 10,039 (E.D. Va. 1975).
35/ See, e.g., Parham v. Southwestern Bell Telephone Co., 433 
F.2d 421, 429?-30 (8th Cir. 1970); Lea v. cone Mills Corp., 438 F.2d 
86, 88 (4th Cir. 1971); Reed v. Arlington Hotel Co., Inc., 476 
F.2d 721, 726 (8th Cir. 1973); Evans v. Sheraton Park Hotel, supra.

- 24



obtains relief through settlement, a "prevailing party" who
prevails by virtue of the filing of an enforcement suit by the

22/EEOC, and a "prevailing party" who prevails only on a
38/procedural point.

36/

II.
TITLE VII REQUIRES THAT FEDERAL EMPLOYEES,'
AS PREVAILING PARTIES, ARE ENTITLED TO 
RECOVER' REASONABLE ATTORNEY'S FEES AND 
COSTS IN ADMINISTRATIVE PROCEEDINGS.______

42 U.S.C. § 2000e-5(k) provides, in pertinent part, that,
"In any action or proceeding under this title the court, in its
discretion, may allow the prevailing party, other than . . . the
United States, a reasonable attorney's fee as part of the costs,
and . . .  the United States shall be liable for costs the same
as a private person." Brown v. General Services Administration.

39/supra, 44 U.S.L.W. at 4707. 42 U.S.C. § 2000e—16(b), provides,
in pertinent part that, "the Civil Service Commission shall 
have authority to enforce the provisions [prohibiting 
employment discrimination] through appropriate remedies, including 
reinstatement or hiring of employees with or without back pay,

36/ See, e.g., Parker v. Matthews. 11 EPD 5 10,821 (D.D.C. 1976); Bowie v. Weinberger. D.D.C. No. 74-1801 (June 17, 1975) (Pratt, j.); 
Walker v. Ralston Purina Co.. 11 EPD 10,812 (M.D. Ga. 1976).
31/ See, e.g.. Drew v. 
(5th Cir. 1973). Liberty Mutual ins. Co.. 480 F.2d 69, 76

_3§̂  See, e.g., Malone v. North American Rockwell corp Drew v. Liberty Mutual Ins. Co., supra.
39/ See also, Williams v. Mumford. ___ U.S. App. D.C.
511 F.2d 363, 367-68 (D.C. Cir. 1975).

, supra;

7

- 25

I



The finalas will effectuate the policies of this section." 
clause of § 2000-16(b) makes clear that, "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." Appellant asserts that the language 
and legislative history of §§ 2000e-5(k) and 2000e-16(b) demon­
strate that these Title VII provisions are "specific and explicit 
provisions for the allowance of attorney's fees under [a] selected 
statute granting or protecting . . .  federal rights," Alyeska 
Pipeline Co. v. Wilderness Society, 421 U.S. 240, 260 (1975);
Turner v. Federal Communications Commission, ___ U.S. App. D.C. ___
514 F.2d 1354 (D.C. Cir. 1975).

A. Attorney's Fees Under 42 U.S.C. 5 2000e-5(k) As Made 
Applicable By $ 2000e-16(d)
On its face, § 2000e-5(k), as made applicable by § 2000e- 

16(d), is an express authorization for award of attorney's fees 
by a federal district court in "any action or other proceeding 
pursuant to this title." Pursuant to its terms, Mr. Foster 
or other federal employees who prevail in the administrative 
process can seek award of attorney's fees wrongfully denied 
under § 2000e-5(k) or other relief wrongfully denied under 
§ 2000e-5(g) on motions for or in the nature of summary judg­
ment before the district court in a civil action, see Hackley v. 
Roudebush# supra, 520 F.2d at 156-59. Legislative history, to 
the extent available, reinforces the plain meaning of the pro­
vision.

- 26



1. Statutory Language
In the context of the § 2000e-16 statutory enforcement 

scheme, the applicability of § 2000e-5(k) to "any action or 
proceeding pursuant to this title" (emphasis added) encompasses 
agency administrative proceedings as well as judicial actions. 
When § 2000e-5Qc) was originally adopted in the 1964 Civil 
Rights Act as part of the private Sector Title VII enforcement 
scheme of § 706, 42 U.S.C. § 2000e-5, the same language of 
broad scope was present. The § 2000e-5 enforcement scheme 
relied upon both administrative and judicial proceedings, as the 
Supreme Court noted in Alexander v. Gardner-Denver, supra, 415 
U.S. at 47.

[L]egislative enactments in this area have long 
evinced a general intent to accord parallel or 
overlapping remedies against discrimination. In the 
Civil Rights Act of 1964, 42 U.S.C. §§ 2000a et 
seq., Congress indicated that it considered the 
policy against discrimination to be of the 'highest 
priority' . . .  Consistent with this view, Title 
VII provides for consideration of employment- 
discrimination claims in several forums. See 
42 U.S.C. § 2000e-5(b) (1970 ed. Supp. II) (EEOC)?
42 U.S.C. § 2000e-5(c) (1970 ed. Supp. II) (State 
and Local agencies)? 42 U.S.C. § 2000e-5(f)(1970 
ed. Supp. II) (federal courts).

In contrast, the contemporaneous attorney's fees provision in
§ 204(b) of Title II of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000a-3(b) is limited in scope to "any action commenced
pursuant to this subchapter." (emphasis added) § 2000a-
3(b) is otherwise identical to § 2000e-5(k). While Title VII's
enforcement scheme is both administrative and judicial, Title
II's enforcement scheme is strictly court action, see Newman

27



v. Piqqie Park, supra. Similarly, in other attorney's fees 
provisions modeled on the Title II and VII provisions, Congress 
has limited attorney's fees to "actions" in solely judicial 
enforcement schemes, Northcross v. Board of Education, supra;
Torres v. Saches, supra; see also supra at 22, n. 29. Thus, the 
specific use of the broadly inclusive phrase "action or proceed­
ing" in 2000e-5(k) in the context of the private sector Title 
VII enforcement scheme indicates a deliberate decision by 
Congress to make administrative proceedings subject to attorney's 
fees and costs awards. "Had Congress wished to restrict an 
award of an attorney's fee to only suits filed in court, there 
would have been no need to add the words 'or proceeding' to 
'any action.' But 'proceeding' is a broader term than 'action' 
and would include an administrative as well as judicial proceed­
ing." Johnson v. United States, supra, slip opinion at 7. 
Similarly, use of the terms "under this title*' ("under this sub­
chapter" in United States Code) rather than narrower terms limiting 
applicability to judicial action provisions indicates that 
§ 2000e-5(k) was intended to apply to the administrative and judi­
cial proceedings in § 2000e-5 enumerated by the Supreme Court in

40/
Alexander v. Gardner-Denver Co. However, the EEOC in its regula­
tions implementing § 2000e-5 has* created simple administrative 
proceedings in which lawyers do not play a role, 29 C.F.R.
§ 1601.5 et seg.; see Love v. Pullman Co.. 404 U.S. 522 (1972); 
Sanchez v. Standard Brands, Inc.. 431 F.2d 455 (5th Cir. 1970).

40/ See Johnson v. United States, supra, slip opinion at 7-8.

28



This has resulted in few private industry employees having to
seek attorney's fees under § 2000e-5(k), but see Drew v. Liberty-
Mutual Ins. Co., supra, although the potential for such an award
is clear under the § 2000e-5 enforcement scheme.

As to § 2000e-5(k) in the federal sector enforcement scheme,
the Supreme Court's decision in Chandler v. Roudebush, supra,
has made clear that § 2000e-16 (d) 's reference to "as applicable"
is conforming language and does not diminish the substantive

41/meaning of § 2000e-5(k). In Chandler, the Court rejected the
argument that the "as applicable" language precludes private

42/
sector-type trials de novo in federal Title VII actions.

41/ "Surely Congress, in stating that the provisions
of subsections 706(f)-(k) 'shall govern' federal 
employee civil actions, did not intend to allow 
District Judges to escape that requirement by 
determining that various provisions are not 
'applicable' to such litigation." Hackley v.
Roudebush, supra, 520 F.2d at 120.

42/ "The most natural reading of the phrase 'as
applicable' in § 717(d) is that it merely reflects 
the inapplicability of provisions in §§ 706(f) 
through (k) detailing the enforcement responsi­
bilities of the EEOC and the Attorney General. ...
As the Court of Appeals for the District of Columbia 
Circuit held in reversing Hackley v. Johnson, supra, 
such an interpretation of the phrase 'as applicable' 
would require a strained and unnatural reading of 
§§ 706(f) through 706(k). Hackley v. Roudebush, supra, 
520 F.2d at 121. This Court pointed out in Lynch v . 
Alworth-Stephens Co., 267 U.S. 364, 370, that 'the 
plain, obvious and rational meaning of a statute is 
always to be preferred to any curious, narrow, hidden 
sense that nothing but the exigency of a hard case 
and the ingenuity and study of an acute and powerful 
intellect would discover.' To read the phrase 'as 
applicable' in § 717(d) as obliquely qualifying the 
federal employee's right to a trial d_e novo under 
§ 717(c) actions of provisions relating to the enforce­
ment responsibilities of the EEOC or the Attorney 
General would violate this elementary cannon of con­struction. 44 U.S.L.W. at 4712.

29



Moreover, the court has expressly stated that § 2000e-5(k) 
is incorporated as to federal employees in Brown v. General

. . .  H 7Services Administration, supra. 44 U.S.L.W. at 4707. Chandler 
and Brown, furthermore, are authority that courts construing 
§ 2000e-16 enforcement provisions are to give them a natural 
construction. It is therefore clear that § 2000-5(k)'s reference 
to "any actions or proceedings" includes awards of attorney's 
fees for § 2000e-16(b) agency administrative proceedings in the 
same way that the provision in its original setting includes 
awards of attorney's fees for § 2000e-5 administrative pro­
ceedings. The broadly inclusive terms "action or proceeding" 
and "pursuant to this title" in the § 2000e-16 enforcement 
context plainly include the administrative proceedings in the 
instant case. Johnson v. United States, supra. slip opinion 
at 6-8.

Furthermore, unlike EEOC § 2000e-5 proceedings, the Library 
of Congress and civil Service Commission in their § 2000e-16(b) 
enforcement regulations have provided for administrative proceedings 
in which lawyer representatives can play a substantial role in 
behalf of both complainant employees and agency management officials 
charged with discrimination. The interrelated administrative- 
judicial enforcement scheme of which the attorney's fees and costs 
provisions in 42 U.S.C. § 2000e-5(k) is a part is described in 
Brown v. General Services Administration, supra, 44 U.S.L.W. at 
4707 as establishing "complementary administrative and judicial 
enforcement mechanisms" and "a careful blend of administrative 
and judicial enforcement powers." Compare Hackley v. Roudebush,

43/ See also Williams v. Mumford. supra, 511 F.2d at 367-68.
- 30 - ‘



supra; Grubbs v. Butz, supra. It is clear that legal repre­
sentation is not unusual in federal Title VII administrative 
proceedings, see, e.g., Copeland v. Brennan, 9 EPD 5 10,127 
(D. D.C. 1975). Indeed, Library of Congress regulations imple­
menting § 2000e-16(b) expressly concede that the employees may 
need legal representation throughout the administrative process, 
however, they effectively limit the choice of complainant 
employees to representatives (not necessarily even attorneys)
employed by the agency, by prohibiting award of attorney's fees

44/
if outside counsel are retained. Civil Service Commission reg­
ulations to enforce § 2000e-16(b), published in 5 Code of Federal 
Regulations Part 713, which govern most other federal agencies

44/ "At any time during the complaint or appeal
procedures under this Regulation, a complainant 
or employee(s) charged shall have the right to 
assistance by the Equal Opportunity Office in 
obtaining representation from the Library staff 
to assist him in the presentation of his case.
The Equal Opportunity Office shall maintain a 
list of staff members who are willing to provide 
such assistance. A complainant or employee(s) 
charged shall be free to select outside counsel; 
however, any expense involved in retaining repre­
sentation from outside the Library shall be borne 
solely by the individual who retains such."
LCR 2010-3.1, § 14D in Appendix A at 18.

A complainant employee, of course, may reasonably conclude that 
an agency representative "whose primary loyalty is to the 
agency," Hackley v. Roudebush, supra, 520 F.2d at 140, n. 130, 
poses conflict of interest problems and is not acceptable, 
see infra at 38-39, 48-49.

31



♦

limit opportunities for legal representation even further.
45/

The need for legal representation, notably at the administra­
tive hearing, is clear from even a cursory review of Library
enforcement regulations: Before the hearing, lawyers may be

46/necessary to draft the administrative complaint, argue against
47/rejection of the complainant and to bring matters to the

48/attention of the agency investigator. The hearing is preceded
by pre-hearing conference in which issues are defined and limited,
witnesses identified, the scope and substance of each witness'49/
testimony identified and stipulations drawn up. Although the 
hearing is described as nonadversarial, the employee is expected to

45/ The Civil Service Commission's regulations expressly recognize 
that the complainant employee has the right to have a representative 
from the filing of the administrative complaint forward, but 
no right to have a lawyer appointed, see, e.g. ,5 C.F.R. §§ 713.214(a), 
713.215, 713.218(c)(2), 713.221(b)(1). The Appeals Review Board of the Commission has specifically held that the regulations do not 
allow for counsel fees to complainant who prevails in the administra­
tive process, Bi re Brown, Appeals Review Board Decision of Novem­
ber 8, 1974.

Thus, if the complainant cannot afford to hire an attorney, 
he can get counsel only if he can convince a government-employed 
attorney to act as his representative, under the regulations, 
however, only an attorney employed by the complainant's own agency 
can do so on official time, if such representation is not "incon­
sistent with the faithful performance" of the attorney's regular 
duties as determined by the agency. An attorney from another agency 
can act as representative only by using up annual leave or by taking 
a leave without pay. FPM Bulletin No. 713.41, October 10, 1975. 
Compare LCR 2010-3.1, § 5A & B in Appendix A at 5. For these reasons, 
complainant employees are generally represented by lay persons 
whereas management is usually represented by an attorney, see Hackley 
v. Roudebush, supra. 520 F.2d at 140 n. 130.
46/ See LCR 2010-3.1, 5A, B, C & F in Appendix A at 5-6.
47/ See LCR 2010-3.1, § 7D & E in Appendix A at 8.
48/ See LCR 2010-3.1, § 8A in Appendix A at 8.
49/ See Appendix to LCR 2010-3.1, II-A in Appendix A at 19.

- 32 -
i



put evidence into the record, offer proof, argue against 
exclusion of evidence, take exception to rulings on admis­
sibility, agree on stipulations, examine witnesses on direct

50/and cross-examination examine witnesses. The regulations 
further require that a pre-hearing order or determination be

52/drawn up and initialed by the parties or their representatives,
52/and that a verbatim transcript of the hearing be prepared.

Post-hearing briefs, although not mentioned in the regulations,
12/may be requested. Furthermore, written submissions for the

Librarian after receipt of the hearing examiner's proposed 
findings and recommendations may be required. The Library's 
regulations and administrative proceeding are adapted from 
those of the Civil Service Commission. Compare, LCR 2010-3.1, 
with. 5 C.F.R. Part 713. The Part 713 regulations are critically 
analyzed in Hackley v. Roudebush. supra. 520 F.2d at 137-41, and 
171 (Leventhal, J., concurring); and U.S. Commission on civil 
Rights, The Federal civil Rights Enforcement Effort - 1974,
Vol. V, To Eliminate Employment Discrimination (July 1975) at 
pp. 61-86, 619-23, 656-58; see also infra at 37-44, 48-49.

50/ See Appendix to LCR 2010-3.1, IV & VI in Appendix A at 20, 21. 
51/ See Appendix to LCR 2010-3.1, II-B in Appendix A at 19.
52/ See Appendix to LCR 2010-3.1, VII in Appendix A at 21.
53/ See supra at 7.

- 33



Because of procedural failings and improper substantive
law standards applied in administrative proceedings, legal
counsel are needed more than in other proceedings to protect the
interest of complainants and to protect the record. The need
for legal counsel committed to the employee, furthermore, is
imperative because management officials charged with discrimination
are usually given lawyers paid by the federal agency to repre­

ss/sent them at the hearing. As a matter of countervailing power
alone, outside counsel and availability of attorney's fees and costs, 
contrary to Library regulation, are required to assure efficient 
Title VII enforcement much less the appearance of fair administra­
tion.

Applying § 2000e-5(k) to the specific statutory enforcement 
scheme created by the act in order "to make sure Title VII 
works," § 2000e-5(k)'s provision of attorney's fees for legal 
counsel in non-judicial proceedings clearly comes into play. As 
was said in Newman v. Piggie Park Enterprises with respect to 
Title II plaintiffs, "if successful [complainants] were routinely 
forced to bear their own attorneys’ fees, few aggrieved parties 
would be in a position to advance the public interest by invoking 
the [remedial powers of agency administrative proceedings]."

54/ Hackley v. Roudebush, supra, 520 F.2d at 140 n. 130.

55/ Hackley v. Roudebush, supra, 520 F.2d at 140 n. 130.

- 34



2. Legislative History
Available legislative history supports this reading of

§ 2000e-5(k). Thus, the Conference Report's section-by-section
analysis states simply, "The provisions of sections 706(f)
through (k), concerning private civil actions by aggrieved
persons, are made applicable to aggrieved Federal employees or

57/applicants for employment." While there appears to be little 
relevant legislative history on attorney's fees in the 1972

58/amendments to Title VII, there was one colloquy between
Senators Javits and Dominick about 2000e-5(k)'s relevance to
federal employee proceedings. Senator Dominick, the chief
architect of the § 2000e-16 enforcement scheme, chandler v.
Roudebush, supra. 44 U.S.L.W. at 4715 n. 36, had submitted an
amendment to the Senate bill S.2515 which, inter alia, would

59/have struck 2000e-16(d). Senator Javits, in turn, intro­
duced an amendment to strike that portion of the Dominick 

60/
amendment. On the floor, Senator Javits justified his

56/

56/ The legislative history of the 1972 amendments to Title VII, 
including § 717, 42 U.S.C. § 2000e-16, has been compiled in 
Subcomm. on Labor of the Senate Comm, on Labor and Public Welfare, 
Legislative History of the Equal Employment Opportunity Act of 
1972 (Comm. Print 1971) (hereinafter "Legislative History").
57/ Legislative History at 1851. Legislative history concerning 
§ 2000e-16 is set forth in Hackley v. Roudebush. supra; chandler v. Roudebush, supra.
58/ See Sape & Hart, Title VII Reconsidered: The Equal Employ­
ment Opportunity Act of 1972, 40 Geo. Wash. L. Rev. 824, 878-79 (1972).
59/ Legislative History at 557, 408.
60/ Legislative History at 868.

- 35



amendment by focusing on the importance of § 2000e-5 pro­
visions concerning court-appointed counsel and waiver of fees,

32/costs or security m  judicial enforcement actions. Where­
upon, Senator Dominick responded in broader terms:

Mr. President, I want to say for the record 
that this particular amendment language was 
included, as the specific provisions of the 
bill deal only with Federal employees for whom 
we had a different procedure. They go through 
their own agencies and then they have the right 
as a Federal employee to go to the civil service 
board or to go through the Federal court system.
The amendment to strike the language was included 
because the language to be struck was thought to 
be inappropriate to the specialized grievance 
procedures adopted in committee for Federal 
employees. A closer reading of sec. 706(g) 
through (w) does indicate that language for 
providing.attorney1s fees and waiving court 
costs are applicable.

Therefore,I have no objection to the Senator's 
amendment, and if he would want to withdraw his 
yea and nay request, that would be fine with me, 
and we can accept the amendment. 62/ (emphasis 
added)

Senator Dominick's comments strongly suggest his understanding 
that § 2000e-5(k) applies to "the specialized grievance pro­
cedures adopted in committee for Federal employees," including63/
administrative proceedings.

Certainly, a review of the 1972 Legislative History 
indicates no intent to limit the plain meaning scope of § 2000e-5(k) 
and no intent to exclude attorney's fees for legal representation 
in federal Title VII administrative proceedings. Indeed, con­
gress indicated that it was ratifying the liberal construction

61/ Legislative History at 868-69.
62/ Legislative History at 872. § 706(g)-(w), as enacted, became
§ 706(f)-(k), 42 U.S.C. § 2000e-5(g)-(k), Legislative History at 
1562. The javits-Dominick colloquy is also discussed in Hackley v. Roudebush. supra. 520 F.2d at 143 n. 139.
63/ See infra at 48-49.

- 36



the courts had previously given the Title II and VII provisions 
by retaining the original Title VII provision and making it 
applicable to federal employment discrimination. Specific evidence 
of this intent is set forth in the Conference Report section-by­
section analysis by inclusion of a statement that, "In any area 
■where the new law does not address itself, or in any areas where 
a specific contrary intention is not indicated, it was assumed that
the present case law as developed by the courts would continue

64/to govern the applicability and construction of Title VII."
Award of attorney's fees for legal representation in the

administrative process is also consistent with the purposes of
§ 2000e-16 revealed in a reading of legislative history. The
Supreme Court in Newman v. Piggie Park Enterprises, supra, 390
U.S. at 402, set forth two primary purposes that courts have
recognized in § 2000e-5(k) and other similarly worded provisions

65/to serve in civil rights statutes: to encourage individuals
injured by racial discrimination to seek relief under the Act, 
and to penalize parties who deliberately advance arguments they 
know to be untenable. As to encouraging private attorney general 
enforcement, there is no doubt that an award of attorney's fees 
is likely to facilitate both filing and prosecution of discrimi­
nation claims in administrative proceedings. In enacting 
§ 2000e-16, Congress was specially concerned that federal employees 
would be discouraged from filing or, if they did file, could not
64/ Legislative History at 1844.
65/ See, e.g., Johnson v. Georgia Highway Express, Inc., supra,488 F.2d at 716.

- 37



effectively prosecute their claims in agency administrative 
proceedings. Specifically, the Senate Committee report 
stated:

The testimony before the Labor Subcommittee 
reflected a general lack of confidence in the 
effectiveness of the complaint procedure on 
the part of Federal employees. Complaints have 
indicated skepticism regarding the Commission's 
record in obtaining just resolutions of com­
plaints and adequate remedies. This has, in 
turn, discouraged persons from filing complaints 
with the Commission for fear that doing so will 
only result in antagonizing their supervisors and impairing any future hope of advancement.
Legislative History at 423.

See infra at 48-49. Judge Wright and judge Leventhal in their 
Hackley opinions indicate that structual and substantive law 
defects in agency administrative proceedings are far from ended, 
see supra at 33.

While the availability of attorney's fees and costs will not 
necessarily effect an immediate reform of Library of Congress and 
Civil Service Commission proceedings, Newman, Alyeska Pipeline Co. 
and other decisions have already held that availability of 
counsel fees is critical to encourage private enforcement. 
Furthermore, congressional concern about the inherent conflict 
of interest in having the agency accused of discrimination be in 
charge of processing and deciding the claim, see, e.g., Chandler v. 
Roudebush. supra. 44 U.S.L.W. at 4711,' 4716 n. 39, is obviously 
heightened when the agency insists, as the Library does, that 
most employees as a practical matter be represented by agency 
personnel. Such a choice may create the very cynicism and 
discouragement about the administrative process Congress required

- 38



changed. When the fact that agency management is represented 
by agency lawyers, as occurred here, is thrown on the balance, 
the question may not be close for many employees.

If, for instance, Mr. Foster had not been able in this case 
to obtain the services of an attorney when his administrative 
complaint was initially rejected, he would not have been able to 
go forward much less put on his case in the administrative pro­
ceedings in order to prevail. Denial of fees and costs in this 
case of course puts other employees and potential counsel at the 
Library on notice that their rights may not be "worth" enforcing. 
Mr. Foster would then be not an example other employees subject 
to discrimination can emulate, but an example of why they should 
not come forward with complaints without the hard calculation 
of costs private enforcement awards of attorney's fees and costs 
are designed to avoid. Failure to come forward with a claim hurts 
more than the individual complainant. As chief Judge Brown 
declared in Jenkins v. united Gas Corp., 400 F.2d 28, 32-33 
(5th Cir. 1968), a Title VII complainant "often obscure takes 
on the mantle of the sovereign": "And the charge itself is 
something more than the single claim that a particular job has 
been denied him. Rather it is necessarily a dual one: (1) a 
specific job, promotion, etc. has actually been denied, and 
(2) this was due to Title VII forbidden discrimination." Chief 
Judge Brown then concluded, that because "what is small in 
principal is often large in principle, element (2) has extreme 
importance with heavy overtones of public interest" and that 
such enforcement complaints are "perforce a sort of class

- 39



action for fellow employees similarly situated." See also, 
Alexander v. Gardner-Denver Co., supra, 415 U.S. at 45.
Again, the Court need look no farther than this case in which 
Mr. Foster was able to obtain relief not only for himself alone 
but for other similarly situated black WP employees at the 
Library who may have been denied training and other equal employ­
ment opportunity for longer than 10 years, supra, at 7-8.

Encouraging fuller use of the administrative process promotes 
the "balance, completeness and structural integrity" of the 
administrative-judicial enforcement scheme recognized in Brown 
v. General Services Administration by possibly preventing 
unnecessary court litigation. A foreseeable result of denying 
attorney's fees and costs in administrative proceedings and 
rendering the administrative process thereby less attractive 
a forum is that employees will go to court at the first opportunity, 
such as exercising their statutory right to sue immediately after 
180 days from the filing of an initial charge, see Grubbs v. Butz, 
supra. Complainant employees in such situations could reasonably 
decide that it would be better to go forward in court where it is 
settled that they can obtain ̂ for appointment of counsel, waiver 
of fees and costs and award of attorney's fees. In Mr. Foster's 
case for instance, he and his counsel may have decided to forgo 
the Library's offer of a stay of judicial proceedings in order to 
resume administrative proceedings had it been settled that no 
award of fees and costs could be obtained. Denial of attorney's 
fees and costs may reasonably persuade other federal employees 
subject to discrimination that this decision to go through 
administrative proceedings was a grave error in Mr. Foster's case.

- 40



An award of attorney's fees also has deterrent value in 
penalizing agencies for unnecessarily prolonging remedy of 
discrimination by raising untenable defenses. Legislative history 
indicates why this purpose has special relevance for reasons that 
go to the heart of the government's approach to discriminationi 
the Civil Service Commission was criticized precisely because of 
the need "to develop more expertise in recognizing and isolating 
the various forms of discrimination which existed in the system

ee/it administers." Furthermore, the very standard by which

The Commission should be especially careful to ensure that its directives issued to 
Federal agencies address themselves to the 
various forms of systemic discrimination in 
the system. The Commission should not assume 
that employment discrimination in the Federal 
Government is solely a matter of malicious 
intent on the part of individuals. It apparently 
has not fully recognized that the general rules 
and procedures that it has promulgated may in 
themselves constitute systemic barriers to 
minorities and women, civil Service selection 
and promotion techniques and requirements are 
replete with artificial requirements that place 
a premium on * paper' credentials. Similar require­
ments in the private sectors of business have often 
proven of questionable value in predicting job 
performance and have often resulted in perpetuating 
existing patterns of discrimination (see e.g.,
Griggs v. Duke Power Co., supra n. 1). The 
inevitable consequence of this kind of technique 
in Federal employment, as it has been in the private 
sector, is that classes of persons who are socio­
economically or educationally disadvantaged suffer 
a very heavy burden of trying to meet such arti­
ficial qualifications.

It is in these and other areas where discrimi­
nation is institutional, rather than merely a 
matter of bad faith, that corrective measures 
appear to be urgently required. For example, the 
Committee expects the civil Service Commission to 
undertake a thorough re-examination of its entire 
testing and qualification program to ensure that 
the standards enunciated in the Griggs case are 
fully met. Legislative History at 423-24.

- 41



federal agencies adjudicate discrimination complaints is at 
variance with what courts have construed Title VII to require,
Hackley v. Roudebush. supra, 520 F.2d at 138 n. 129 and 171 n. 3 
and accompanying text (Leventhal, J.). Under such circumstances, 
the problem of untenable defenses in agency administrative pro­
ceedings is great. There is also the prophylactic effect of a potential 
award on an agency bent generally on unjustified delay. An 
example is the instant case in which the Equal Opportunity 
Office of the Library of Congress wrongfully tried to have Mr. 
Foster's complaint rejected and the Library recognized as early 
as November 1974 after an investigation that Mr. Foster had been 
discriminated against but did nothing until a year later after 
a full administrative hearing had been held. The Library of 
Congress acted with impunity in unreasonably delaying the 
resolution of this case in part perhaps because its regulations 
prohibit awards of attorney’s fees. Had attorney's fees been
available, the resolution of the case might have proceeded much

67/faster. Compare Parker v. Matthews, supra, 11 EPD at p. 7443..

67/ What the Supreme Court stated in this connection as to back
pay awards in Albemarle Paper Co. v. Moody, supra, ___ U.S. at
is also true of attorney’s fees awards:

If employers faced only the prospect of an 
injunctive order, they would have little 
incentive to shun practices of dubious 
legality. It is the reasonably certain 
prospect of a backpay award that "provide[s] 
the spur or catalyst which causes employers 
and unions to self-examine and to self- 
evaluate their employment practices and to 
endeavor to eliminate, so far as possible, 
the last vestiges of an unfortunate and 
ignominious page in this country's history.
United States v. N.L. Industries, 479 F.2d 354, 379.

Compare Parham v. Southwestern Bell Telephone Co., supra; Evans 
v . Sheraton Park Hotel, supra; infra at part III.B.

42



An award of attorney's fees, as an equitable remedy 
under Title VII, would also serve the purpose of practically 
making whole the complainant employee, see Albemarle Paper 
Co. v. Moody, supra; Franks v. Bowman Transportation Co..

. ___, 47 L.Ed. 2d 444 (1976). This purpose is made
clear in the Conference Committee Section-by-Section analysis 
of the 1972 amendments to Title VII as enacted affirming the 
"make whole" purpose of Title VII. Referring to related 
§ 706(g), 42 U.S.C. § 2000e-5(g), the analysis stated:

The provisions of this subsection are 
intended to give the courts wide discretion 
exercising their equitable powers to fashion 
the most complete relief possible. In dealing 
with the present Section 706(g) the courts have 
stressed that the scope of relief under that 
section of the Act is intended to make the victims 
of unlawful discrimination whole, and that the 
attainment of this objective rests not only 
upon the elimination of the particular unlawful 
employment practice complained of, but also 
requires that persons aggrieved by the conse­
quences and effects of the unlawful employment 
practice be. so far as possible, restored to 
a position where they would have been were it 
not for the unlawful discrimination. Legislative History at 1848. (emphasis added)

See also Franks v. Bowman Transportation Co., supra, 47 L.Ed.
at 460-62. Provision of § 2000e-5(k) attorney's fees and costs
safeguards the "make whole" purpose of back pay awards.

Thus, denial of attorney's fees can result in throwing the 
whole burden of paying counsel for prosecuting a discrimination 
charge on the employee's back pay recovery; even if he prevailed 
on the merits and obtained injunctive and back pay for himself 
and private attorney general gains for fellow employees, he would 
still not be made whole. An example would be the cost of legal 
representation in the instant case: over $12,000. What Judge

- 43



Bryant wrote in Fitzcrerald v. United States Civil Service
Commission, supra. 407 F. Supp. at 387, with respect to the 
Veterans' Preference Act administrative enforcement is equally 
applicable to Title VII: "[s]mall recoveries would make it 
impossible for the persons involved to undertake to pay those 
fees outright, for the fees would often equal or exceed the 
amount to be recovered. It simply cannot be that the Congress 
intended the rights it granted in the Act to be crippled in this 
fashion." Similarly, there could be discrimination claims in 
which the potential back pay award would not make filing a claim 
"worthwhile" notwithstanding other significant injunctive relief. 
Title VII attorney's fees awards are designed to overcome just 
such crippling by removing the need for counsel to prosecute 
claims as a possible obstacle to assertion of charges and making 
whole the victims of discrimination. Moreover, Congress cannot 
have intended to create a statutory scheme with "a careful 
blend of administrative and judicial enforcement powers" in which 
employees who pursued their claims in one 2000e-16 forum could 
truly be made whole but those who resorted to another could not.

B. Attorney's Fees Under 42 U.S. C. S 2000e-16(b)
The district court erred not only in denying attorney's 

fees and costs pursuant to § 2000e-5(k), but also because it 
did not correct the failure of the Library of Congress itself to 
award fees as requested by Mr. Foster, supra, at 6. Statutory 
language and available legislative history of 42 U.S.C. § 2000e- 
16(b), read together, indicate that it is a provision requiring

- 44



award of attorney's fees and costs in administrative proceedings. 
Pursuant to § 2000e-16(b), the Librarian of Congress "shall have 
authority to enforce the provisions [prohibiting employment 
discrimination] through appropriate remedies, including reinstate­
ment or hiring of employees with or without back pay, as will 
effectuate the policies of this section" (emphasis added).
§ 2000e-16(b) is thus a straightforward grant of plenary remedial 
authority whose terms clearly could encompass an award of attorney's 
fees and costs. Compare, for instance, "appropriate remedies . . .  
as will effectuate the policies of this section" with language 
that "such relief (including injunctions) as may be appropriate" 
in § 102 of the Labor-Management Reporting and Disclosure Act of
1959, 29 U.S.C. § 412, construed in Hall v. Cole, 412 U.S. 1 

68/
(1973) or language that, " [t]he administrative authority
shall take the corrective action that the Commission finally
recommends" in 5 U.S.C. § 7701, construed in Fitzgerald v. U.S.
Civil Service Commission, supra, to permit awards of fees. In
construing similarly broad language in the related § 706(g)

69/provision for judicial relief, 42 U.S.C. § 2000e-5(g),
the Supreme Court has indicated that language and legislative
history are "emphatic confirmation that federal courts are

68/ Hall v. Cole was specifically approved in Alyeska Pipeline 
Co. v. Wilderness Society, supra, 421 U.S. at 257.
69/ Section 2000e-5(g) provides, in pertinent part, "the court 
may enjoin the respondent from engaging in such unlawful employ­
ment practice, and order such affirmative action as may be 
appropriate, which may include, but is not limited to, reinstate­
ment or hiring of employees, with or without back pay . . ., or any 
other equitable relief as the Court deems appropriate."

- 45



empowered to fashion such relief as the particular circumstances 
of a case may require to effect restitution, making whole insofar 
as possible the victims of racial discrimination," Franks v.
Bowman Transportation Co., supra. 47 L.Ed.2d at 461; Albemarle 
Paper Co. v. Moody, supra. Similarly, the Supreme Court in 
Chandler v. Roudebush, supra. 44 U.S.L.W. at 4716, responded to 
the government's argument at a trial de. novo was not required 
because of a purported presumption against de_ novo review and 
"the absence of specific statutory authorization:" "Here . . . 
there is a 'specific statutory authorization' of a district court 
'civil action,' which both the plain language of the statute 
and the legislative history reveal to be a trial de_ novo " (empha­
sis added). Franks and chandler stand for the rule that in constuing 
Title VII enforcement and remedial provisions, that an aspect 
of enforcement or form of relief is not specifically mentioned 
on the face of the statute (trial de_ novo in Chandler and 
retroactive seniority relief in Franks) does not limit its 
availability.

In fact, the question is much narrower than in Hall,
Fitzgerald and Franks. First, as discussed in Section A of this 
part of the -argument, courts may award attorney's fees and 
costs for legal representation in administrative proceedings 
pursuant to §2000e-5(k) -made applicable by §2000e-16 (d) .
Thus, the question to be determined by analysis of relevant 
legislative history and statutory purpose involves the parity 
of remedial power between judicial and administrative power.
See Brown v. General Services Administration, supra. As will 
become clear, no difference in remedial authority exists.

46



Second, the Civil Service Commission and Library of Congress 
do not oppose so much the essential relief sought but its 
form. As discussed above, legal representation is made avail­
able in the administrative process, albeit in very limited 
fashion that employees can reasonably find unsatisfactory, supra
at 30-34, pursuant to either § 2000e-16(b) remedial authority70/
or rulemaking power. Thus, although providing representatives 
and even lawyers paid by the agency to effectuate private 
enforcement in administrative proceedings is not mentioned in 
§ 2000e-16(b), the propriety of these alternatives to counsel 
fees is not questioned. The narrow question, to be answered 
by a scrutiny of legislative history from this perspective, 
concerns only whether §2000e-16(b) prohibits awards of 
attorney's fees and costs for federal employees who 
choose to be represented by outside counsel, whose commitment 
is solely to the employee, rather than an agency representative 
not likely to be a lawyer. On this, Congress made abundantly 
clear that no such limits on vigorous prosecution were ever 
contemplated.

Section 2000e-16(b)'s remedial provision was occasioned by 
claims of federal agencies that their statutory authority to 
provide relief for employment discrimination was limited. Thus, 
the Senate Committee Report explains:

_7Q/ 42 U.S.C. § 2000e-16(b) provides, in pertinent part,
" [T]he Civil Service Commission . . .  shall 
issue such rules, regulations, orders and 
instructions as it deems necessary and 
appropriate to carry out its responsibilities under this section."

As stated above, § 2000e-16(b) gives the Librarian parallel authority over the Library of congress.
- 47



[T]he remedial authority of the commission . . .  
has been in doubt. The provisions adopted by the 
committee will enable the Commission to grant full 
relief to aggrieved employees, or applicants, in­
cluding back pay and immediate advancement as 
appropriate. Legislative History at 425.

A specific predicate for the § 2000e-16(b) attorney's fees 
provision was Congress1 concern to make administrative pro­
ceedings function more effectively, in the House version as 
introduced, the EEOC was given the Civil Service Commission's 
authority over federal equal employment opportunity programs 
and the paralleling Librarian's authority over Library programs 
because Congress was so dissatisfied with, inter alia, administra­
tive procedures. See Legislative History at 59-60, 83-86.
However, the CSC and Librarian retained jurisdiction in the com-

71/promise versions that passed the Senate and Conference.
The legislative history nevertheless contains an indictment of 
existing administrative procedures. See Morton v. Mancari.
417 U.S. 535, 546-47 (1974); Chandler v. Roudebush. supra.
44 U.S.L.W. at 4712 n. 9, 4716 n. 39; Hackley v. Roudebush. supra. 
520 F.2d at 127-28. The House Report flatly declared that the 
administrative procedure "intended to provide for the informal 
resolution of complaints, has, in practice, denied employees 
adequate opportunity for impartial investigation and resolution 
of complaints." Legislative History at 84. The Senate Report 
stated that the procedure "may have denied employees adequate 
opportunity for impartial investigation and resolution of com­
plaints." Legislative History at 423. In the Senate Report, 
Congress sought to channel new § 2000e-16(b) remedial and rule- 
making authority toward the purpose of making administrative 
Zi/ See Hackley v. Roudebush. supra. 520 F.2d at 126-28.

- 48



proceedings work better.
Under present procedures, in most cases, 

each agency is still responsible for investi­
gating and judging itself. Although provision 
is made for the appointment of an outside 
examiner, the examiner does not have the 
authority to conduct an independent investigation, 
and his conclusions and findings are in the nature 
of recommendations to the agency head who makes 
the final agency determination on whether there 
is, in fact, discrimination in that particular 
case. The only appeal is to the Board of Appeals 
and Review in the civil Service Commission.

The testimony before the Labor Subcommittee 
reflected a general lack of confidence in the 
effectiveness of the complaint procedure on the part of Federal employees. Complaints have 
indicated skepticism regarding the commission’s 
record in obtaining just resolutions of complaints 
and adequate remedies. This has, in turn, dis­
couraged persons from filing complaints with the 
Commission for fear that doing so will only 
result in antagonizing their supervisors and 
impairing any future hope of advancement. The 
new authority given to the civil Service com­
mission in the bill is intended to enable the 
Commission to reconsider its entire complaint 
structure and the relationships between the 
employee, agency and Commission in these cases. 72/

The report went on to criticize the government's lack of 
expertise in recognizing and isolating discrimination and its 
failure to address systemic discrimination. The Senate Report 
also declared, "In order to assist the Commission in accomplishing 
its goals and to make clear the Congressional expectation that 
the Commission will take those further steps which are necessary 
to satisfy the goals of Executive Order 11478, the Committee 
adopted in Section 707(b) [sic] of the bill specific require­
ments under which the Commission is to function in developing 
a comprehensive equal employment opportunity program." Legis­
lative History at 424. Obviously, exercise of § 2000e-16(b)

72/ Legislative History at 423.

- 49 -



remedial authority to award attorney's fees and costs under pre­
vailing legal standards is calculated to make the administrative 
process more effective. As Judge Wright pointed out in Hackley 
v. Roudebush. supra, 520 F.2d 140 n. 130, "Congress was cognizant
of the fact that Federal employees often needed counsel in these

22/complicated areas, but seldom could afford such expenses."
Furthermore, the Senate Committee report explained 

§2000e-16 (b)1s scope in terms that leave no doubt as to its 
plenary nature:

[T]he provision in Section 717(b) for 
applying "appropriate remedies" is intended 
to strengthen the enforcement powers of the 
Civil Service Commission by providing statutory authority and support for ordering 
whatever remedies or actions by Federal 
agencies are needed to ensure equal employ­
ment opportunity in Federal employment. 74/
(emphasis added)

The Conference Committee's section-by-section analysis is to 
the same effect:

The Civil Service Commission [and Librarian 
of congress would be authorized to grant appro­
priate remedies which may include, but are not 
limited to, back pay for aggrieved applicants 
or employees. Any remedy needed to fully recom­
pense the employee for his loss, both financial 
and professional, is considered appropriate under 
this subsection. 75/ (emphasis added)

Obviously recovery of attorney's fees is a remedy "needed to
ensure equal employment opportunity in Federal employment" or
"needed to fully recompense the employee for his loss, both

73/ See, e.g., Legislative History at 85; Hearings on S.2515, 
S.2617, H.R. 1746 Before the Subcom. On Labor of the Senate 
Comm. On Labor and Public Vfelfare, 92d Cong., 1st Sess. at 342-43.
74/ Legislative History at 424.
75/ Legislative History at 185, see 1843; compare 424, 1777, 1851.

- 50 -



financial and professional." As Judge Bryant put it in 
Fitzgerald v. U. S. Civil Service Commission , supra. 407 
F.2d at 386, concerning agency enforcement proceedings, "the pro- 
sibility seems remote that the Members of Congress who enacted 
this law, a large percentage of whom were lawyers themselves, 
could have been unaware that the sine qua non of legal 
representation in such matters is the payment of substantial 
fee for time expended and costs incurred in pressing the appeals." 
The possibility is even more remote because Congress was specifi­
cally aware of the need for legal representation in administrative 
proceedings. Legislative history is thus clear that congress 
intended no derogation of § 2000e—16(b) authority, especially 
not to award attorney's fees and costs for legal representation 
in administrative proceedings.

As to the consistency of § 2000e-16(b) award of fees and 
costs with purposes revealed in legislative history, appellant 
incorporates by reference the discussion, supra, at 37-44 on 
awards pursuant to § 2000e-5(k).

III.
TITLE VII REQUIRES THAT FEDERAL EMPLOYEES,AS PREVAILING PARTIES, ARE ENTITLED TO 
RECOVER ATTORNEY'S FEES AND COSTS IN ADMIN­
ISTRATIVE PROCEEDINGS WHICH WITH JUDICIAL 
PROCEEDINGS ARE PART AND PARCEL OF THE SAME L I T I G A T I O N . ___________________________

Clearly, a federal employee is entitled to recover 
attorney's fees and costs for legal representation associated 
with a Title VII judicial "action or proceeding" pursuant to 
42 U.S.C. § 2000e-5(k), supra, at 25. The discussion in part 
I of the argument on the broad and liberal standard of con-

51



struction and in part II on statutory language and legislative 
history of Title VII provisions for attorney's fees and costs 
at the very least demonstrates that these terms are to he read
broadly and liberally. That discussion is incorporated by reference
here. Thus, apart from the question of recovery of fees and costs
in administrative proceedings per se, recovery is available in
the instant case on the independent ground that "the administrative
and judicial proceedings [in this case] were part and parcel of
the same litigation for which an attorney's fees is now sought,"
Johnson v. United States, supra, slip opinion at 7? compare
Evans v. Sheraton Park Hotel, supra, 503 F.2d at 189. The lower
court, however, refused to grant attorney's fees and costs in
either administrative or judicial proceedings for the reason that
" [t]here is nothing this Court has done to effectuate relief for

. . 26/plaintiff" and "[u]nder . . .  these circumstances, plaintiff's
administrative success does not entitle him to attorney's fees
as the 'prevailing party' under 42 U.S.C. § 2000e-5(k)" (R. 8)
(A. ). The lower court was careful, of course, to note that
relief in the form of resumption of administrative proceedings
had been obtained " [a]s a result of the lawsuit" but sought to

77/distinguish this as de minimus. "This Court has . . .  merely

76/ The district court relied on Chief Judge Jone’s decision 
m  Mello v. Secretary of HEW, 8 EPD 5 9620 (D.D.C. 1974) for 
this proposition, but see infra.
22/ "Unlike the Parker Tv. Matthews] case, supra,

defendant's reconsideration of plaintiff's 
administrative complaint involved the agency's 
setting aside of a threshold procedural error, 
which, permitted the interrupted investigative 
process to go forward." (r . 8) (A. )

But see, infra, at 60-62.

52



received plaintiff's discrimination complaint and stayed 
its hand by consent of the parties." (R. 8) (A. ). This
district court, therefore, did not rule out an award for legal 
representation in administrative proceedings as part of 
recovery of litigation expenses as such, but only under circum­
stances of purported insufficient exercise of judicial remedial78/
power in order to qualify plaintiff as a "prevailing party."
This narrow and technical rule simply is not the law as construed 
by the courts with respect to the role of an award of attorney's 
fees and costs in the Title VII enforcement scheme nor consistent 
with the circumstances of the instant case.

A. Attorney's Fees And Costs In The Title VII Enforce­ment Scheme
As set forth more fully in parts I and II, courts have 

consistently given attorney's fees and costs provisions in 
Title VII and other civil rights acts a broad construction 
consonant with their congressionally-mandated critical role in 
encouraging vindication of fundamental rights. One area in 
which this development has been most pronounced is practically 
broad construction of the term "prevailing party" designed to

79  ̂ There was no issue in the district court's mind as to 
administrative proceeding events during the period of judicial 
jurisdiction being encompassed in § 2000e-5(k) "action or 
proceeding" language for purposes of attorney's fees and costs, 
compare Evans v. Park Sheraton Hotel, supra, 433 F.2d at 189; 
see supra at 21-51,if the condition of the exercise of judicial 
remedial power had been met.

53



effectuate the particular statutory enforcement scheme, see 
supra at 24-25. This is particularly the case in federal Title 
VII litigation whose statutory scheme "establish [es] complementary 
administrative and judicial enforcement mechanisms designed to 
eradicate federal employment discrimination." Brown v. General 
Services Administration, supra, 44 U.S.L.W. at 4707.

Although judicial proceedings are in form trials de_ novo, 
it is clear that prior administrative proceedings can serve 
significant functions in resolution of complaints in court.
Thus, the Supreme Court in Chandler v. Roudebush, supra, 44 U.S.L.W. 
at 4717, concluded that:

Prior administrative findings made with 
respect to an employment discrimination claim 
may, of course, be admitted as evidence at a 
federal sector trial de_ novo. See Rule 803 
(8)(c) of the Federal Rules of Evidence. Cf.
'Alexander v. Gardner Denver Co., supra, 415 
U.S. at 60 n. 21. Moreover, it can be expected 
that, in the light of prior administrative 
proceedings, many potential issues can be 
eliminated by stipulation or in the course of 
pretrial proceedings in the District Court.
(emphasis added)

Even before the Chandler decision, this Court had already decided 
in Hack1ey v. Roudebush, supra, that "there is no reason why

79/the de novo proceeding need duplicate the administrative record"

79/ To hold, as we have, that federal
employees have the right to a trial de 
novo under Section 717 of Title VII is 
not, we must stress, to say that the 
administrative hearing record and agency 
findings have no role to play in that 
trial. Nor is it to say that summary 
judgment cannot be granted in appropri­
ate circumstances.

The Supreme Court’s recent unanimous 
decision in Alexander v. Gardner-Denver Co., 
415 U.S. 36, 94 S. Ct. 1011, 39 L.Ed. 2d(Continued)

- 54



This practical flexible view of how administrative proceedings 
can assist district courts in resolution of discrimination 
charges is to be contrasted with the lower court's narrow and 
technical distinction between relief obtained in "administrative 
investigations" and "compensable adversary proceedings." The 
fact is there is no such distinction because of the very nature 
of the federal Title VII statutory scheme.

It is in this context of assuring that the enforcement 
scheme works as an integrated "enforcement mechanism,"
Brown v. General Services Administration, supra, that courts 
have granted attorney's fees and costs to Title VII plaintiffs 
for legal representation in administrative and other proceedings 
in a variety of circumstances in which those proceedings aided 
resolution of the controversy under judicial jurisdiction, see 
cases cited supra, at 22-25. Thus in Smith v. Kleindienst, supra.

79/ (Continued)
147 (1974), is particularly instructive 
with respect to the question of the 
admissibility of the administrative record.
In Alexander the Court held that a private 
sector employee's right to a trial de_ novo 
under Title VII is not foreclosed by the 
prior submission of his discrimination claim 
to final arbitration under the nondiscrimi­
nation clause of a collective bargaining 
agreement. Nevertheless, the Court indicated 
that the 'arbitral decision may be admitted 
as evidence and accorded such weight as the 
court deems appropriate.' We believe that 
the compiled administrative record, though 
not the focus of the court's attention in 
a de_ novo action under Title VII, will never­
theless also shed evidentiary light on the 
issues raised in the complaint, and should 
thus be accorded similar treatment. This is 
particularly true because rendering the record 
admissible may obviate the necessity for taking 
extensive testimony at trial.

See also Sperling v. united States, 515 F.2d 465, 483-84 (3d Cir.1975). ----------------------
55



this court affirmed as not excessive an award of "[attorney's
fees and expenses of this proceeding and of the administrative
proceedings which preceded it and which comprise the record in
this action," 8 FEP Cases at 753. Judge Richey, in awarding
attorney's fees and costs for a federal employee plaintiff who
settled her Title VII claim in Parker v. Matthews, supra, 11
EPD at p. 7444 took note of Smith and declared:

Accordingly, this Court will not take a 
distinction between the time spent by 
plaintiff's attorney on the administrative and judicial levels. Plaintiff was forced 
to bring this action to the federal courts 
because of the agency's refusal to implement 
the finding of discrimination. Moreover, 
counsel's representation before both the 
agency and this Court has been in furtherance 
of the policies behind the Civil Rights Act.

Similarly, Judge Harvey in the District of Maryland awarded
attorney's fees for representation in administrative proceedings
to an employee who had obtained a retroactive promotion in
administrative proceedings, but was refused an injunction
restraining the agency from future acts of discrimination,
Johnson v. united States, supra. This decision summarizes
the prevailing law as to federal Title VII cases.

In arguing that to recover his attorney's 
fee a party must prevail in court rather than 
in administrative proceedings, defendants ' 
overlook both the history of this litigation and 
the Congressional intent in adding § 717 to the 
Civil Rights Act of 1964. Plaintiff did origi­
nally sue in this Court for relief, and it was 
the Army which moved for a remand so that the 
dispute could be heard initially in administrative 
proceedings. Not completely satisfied with the 
relief afforded at the administrative level, 
plaintiff later reinstituted suit, which is now this 
pending action. Certainly, the fact that plaintiff 
had already filed suit in this court and had been

- 56 -



expressly authorized to return here if 
dissatisfied with the administrative 
results had a marked effect on the Army's 
acceptance of the findings made by the Hearing 
Examiner. Thus, the administrative and 
judicial proceedings were part and parcel of 
the same litigation for which an attorney's fee 
is now sought.

Moreover, the clear Congressional intention 
in enacting § 717 in 1972 was to create an 
administrative and judicial scheme for the redress 
of federal employment discrimination. Brown v.
General Services Administration, supra, 44 U.S.L.W. 
at 4706. Sections 717(b) and (c), 42 U.S.C.
§ 2000e-16(b) and (c), establish complementary administrative and judicial enforcement mechanisms 
to achieve the statutory purpose. Idem at 4706.
It is therefore not material whether the party 
seeking the award prevailed at the administrative 
level or at the judicial level. Both are a part 
of the same enforcement mechanism established by 
the statute. If he is represented by an attorney 
at either or both levels, a successful claimant 
is entitled to an attorney's fee to be awarded 
in the discretion of the Court.

In this particular case, plaintiff through 
administrative proceedings was restored to the 
position he sought retroactive to September 8,
1968 and was awarded full back pay. clearly he is 
the prevailing party' contemplated by the statute. 
The fact that this Court did not enter a permanent 
injunction against possible future discrimination 
by defendants hardly detracts from the substantial 
victory won by plaintiff as a result of his per­
sistent efforts to vindicate his rights. Slip 
opinion at 6-7.

Moreover, the federal Title VII rule as to administrative 
proceedings is but a special application of the more general 
rule as developed in private sector Title VII actions. Thus, 
before the enactment of the 1972 amendments, the Eighth circuit 
in Parham v. Southwestern Bell Telephone Co.,.supra, 433 F.2d 
429-30, had awarded fees under § 2000e-5 (k) to a plaintiff who 
prevailed on the merits but not as to the injunctive relief 
sought because of defendant's voluntary complaince.

57



Although we find no injunction warranted 
here, we believe Parham's lawsuit acted as a 
catalyst which prompted the appellee to take 
action implementing its own fair employment 
policies and seeking compliance with the require­
ments of Title VII. In this sense, Parham 
performed a valuable public service in bringing 
this action. Having prevailed in his contentions 
of racial discrimination against blacks generally 
prior to February, 1967, Parham is entitled 
to reasonable attorney's fees, including services 
for this appeal, to be allowed by the district 
court as authorized by 42 U.S.C.A. §2000e-5(k).

The Parham "catalyst" rule has been widely followed by courts
in a variety of circumstances, supra, at 24-25, mindful of the
injunction that it is Title VII enforcement that is paramount
to entitlement to fees and costs. This Court, for instance,
following Parham, awarded fees in a similar case in which a
voluntary merger of local unions precluded injunctive relief.

Although the merger rendered injunctive 
relief unnecessary, we believe the lawsuit 
acted as a catalyst, prompting the defendant 
unions to take action in compliance with the 
requirements of Title VII. Parham v. South­
western Bell Telephone Co. . . .; Dobbins v.
Local 212, International Bros, of Elec. Wkrs.,
292 F.Supp. 413 (S.D. Ohio W.D. 1968). Further,
Mrs. Evans prevailed in her contentions of discrimination based on sex prior to the May 1972 
merger. In this regard she performed a valuable 
public service in bringing this action, entirely 
consistent with the intent of Congress. Newman v.
Piggie Park Enterprises . . . .  We think the trial 
court was correct in recognizing Mrs. Evan's 
entitlement to an attorney's fee...
Evans v. Sheraton Park Hotel, supra, 503 F.2d at 189. 

Under the Parhan-Evans rule the lower court's denial of 
attorney's fees and costs is a_ fortiori erroneous. In the 
instant case, there was more than mere voluntarily discontinued 
discrimination by the defendant agency "[a]s a result of the 
lawsuit;" unlike Parham and Evans. there was injunctive relief

58



ordered in a proceeding authorized and created by the Act.
To the extent Mello v. Secretary of HEW, supra, provides 
support for the lower court's decision, it too is inconsistent 
with Parham—Evans. There is no question concerning the relevance 
of the Parham-Evans rule for federal Title VII actions; 
federal Title VII actions are to be governed by private sector 
Title VII scheme, supra, at 29 , and the Parham-Evans rule 
like other judicial constructions of § 2000e-5 provisions was 
incorporated by reference in the Conference Report, supra at 37.

B. Circumstances Of The Litigation
Contrary to the lower court's conclusion that the circum­

stances justify denial, undisputed circumstances of the litigation 
lead directly and inexorably to the conclusion of entitlement to 
attorney's fees and costs under applicable law:

1. The lower court had jurisdiction of the case when Mr.
Foster obtained relief from defendant's administrative proceedings. 
The lawsuit was filed June 17, 1974; a stay pending final administra­
tive action was issued August 5, 1974; Mr. Foster obtained relief 
under a final agency decision November 11, 1975; Mr. Foster 
moved for an award of attorney's fees and costs January 28, 1976.
The fact that the lawsuit was pending throughout the period of 
processing and decision creates a presumption that the lawsuit 
was a "catalyst" for the final agency action under the Parham-Evans 
rule. Nothing in the record rebuts the presumption; indeed, 
all the relevant facts support it, infra.

59



2. Filing the lawsuit was the only way for Mr. Foster
to obtain any relief from any forum on his discrimination charge 
after his administrative complaint was initially rejected by 
the Library. Mr. Foster was informed by the Library on May 17,
1974 that the cancellation of his complaint for purported 
technical reasons could not be corrected on the administrative 
level and that his only recourse was to file a civil action, 
supra at 3—4; he did so within the time prescribed in the 
Library's notice.

3. Administrative proceedings on Mr. Foster's complaint 
were resumed " [a]s a result of the lawsuit," supra at 4 n. 4.
After the filing of the lawsuit, the General Counsel of the 
Library reviewed the case July 1, 1974, and concluded that 
the complaint had been erroneously cancelled, that there were 
substantive grounds for the complaint and that "the Library's 
chances before the U. S. District Court [are] less than 50/50," 
supra, at 4-5 n. 4. Immediately on July 8, 1974, the Librarian, 
at the recommendation of the General counsel, directed that 
administrative proceedings on the complaint be resumed, supra at 4. 
The lawsuit acted as a Parham—Evans "catalyst" for resumption of 
administrative proceedings.

4. After the resumption of administrative proceedings, on 
July 30, 1974, defendant Library prepared and persuaded Mr. Foster 
to agree to a stipulation staying all further judicial proceedings 
until after Library administrative proceedings were concluded.
The stay was approved August 5, 1974, supra, at 4-5. Compare

60



Johnson v. United States, supra, slip opinion at 7-8.
5. Had Mr. Foster not obtained all the injunctive relief 

on the merits of his claim sought, he could have sought it in 
the district court.

6. Mr. Foster obtained relief for both himself and for 
other similarly situated black WP and other Library employees. 
The hearing examiner found, inter alia, that Mr. Foster and 
other WP employees (most of whom are black) were denied training 
opportunities because of their race, supra, at 7. The hearing 
examiner then recommended, inter alia, that (1) the Librarian 
explore the extent of his authority to hire qualified minorities 
and women in job categories where they are underrepresented or 
underutilized; (2) the Librarian consider establishing a merit 
promotion system which provides for evaluation of candidates 
and the assignment of a score resulting from weighted factors; 
and (3) the Library Equal Opportunity Coordinator take certain 
steps to assure that all management officials and supervisors 
understand and implement their obligations under Title VII and 
Library regulations. The Librarian either accepted or stated 
that these policies were in effect and would be implemented, 
supra, at 8. Had Mr. Foster's complaint accomplished nothing 
else, it would have served the public interest, compare, e.g., 
the cases cited, supra at 24 n. 35.

7. Mr. Foster moved for attorney's fees and costs for 
legal representation in judicial proceedings that caused the 
resumption of administrative proceedings and for legal repre-

61



an /sentation in the administrative proceedings. Mr. Foster 
sought recovery of attorney's fees and costs that had been 
denied him in the final agency decision. The lower court did 
not explain why attorney's fees and costs for bringing the action 
causing the Library to reverse its prior wrongful cancellation 
of the administrative complaint should not be considered under 
Newman v. Piggie Park Enterprises, supra, the Parham-Evans rule 
or cases cited at 22-25. The lower court erroneously justified 
denial of consideration of attorney's fees and costs for prose­
cution of the case in administrative proceedings on grounds 
directly contrary to prevailing law.

80/ Mr. Foster also seeks fees and costs for representation 
xn judicial proceedings on the attorney's fees and costs issue, see supra at 8-9.

- 62



Conclusion
For the above stated reasons, the Court should reverse 

the orders of the district court of April 7 and 12, 1976 
denying attorney's fees and costs for legal representation in 
administrative and judicial proceedings authorized by Title 
VII, and remand this case to permit consideration of an award 
of attorney's fees and costs under prevailing legal standards,
see Evans v. Sheraton Park Hotel. ___U.S. App. D.C. ____, 503
F.2d 177, 186-89 (D.C. Cir. 1974).

Respectfully submitted,

! / '

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
MELVYN R. LEVENTHAL 
ERIC SCHNAPPER 
BILL LANN LEE Suite 2030 

10 Columbus Circle 
New York, New York 10019

SHALON RALPH
8601 Springdell Place 
Chevy Chase, Maryland 20015

Attorneys for Appellant

- 63



APPENDIX FOR STATUTES

Section 706 (k) of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. § 2000e-5(k), provides:

(k) in any action or proceeding under this 
title the court, in its discretion, may allow 
the prevailing party, other than the com­
mission or the United States, a reasonable 
attorney's fee as part of the costs, and 
the Commission and the united States shall 
be liable for costs the same as a private person.

Section 717 of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. § 2000e-16, provides:

Sec. 717. (a) All personnel actions affecting 
employees for applicants for employment (except 
with regard to aliens employed outside the limits 
of the united States) in military departments as 
defined in section 102 of title 5, United States 
Code, in executive agencies (other than the 
General Accounting Office) as defined in section 
105 of title 5. united States Code (including 
employees and applicants for employment who are 

* paid from nonappropriate funds), in the United 
States Postal Service and the Postal Rate com­
mission, in those units of the Government of the 
District of Columbia having positions in the com­
petitive service, and in those units of the 
Government of the District of Columbia having 
positions in the competitive service, and in those 
units of the legislative and judicial branches 
of the Federal Government having positions in the 
competitive service, and in the Library of Congress 
shall be made free from any discrimination based 
on race, color, religion, sex, or national origin.

(b) Except as otherwise provided in this 
subsection the Civil Service commission shall 
have authority to enforce the provisions of sub­
section (a) through appropriate remedies, including 
reinstatement or hiring of employees with or without back pay, as will effectuate the policies of this 
section, and shall issue such rules, regulations, 
orders and instructions as it deems necessary and 
appropriate to carry out its responsibilities under 
this section. The Civil Service Commission shall—

la



(1) be responsible for the annual review 
and approval of a national and regional equal 
employment opportunity plan which each depart­
ment and agency and each appropriate unit 
referred to in subsection (a) of this section 
shall submit in order to maintain an affirmative 
program of equal employment opportunity for all 
such employees and applicants for employment;

(2) be responsible for the review and evalu­
ation of the operation of all agency equal 
employment opportunity programs, periodically 
obtaining and publishing (on at least a semi­
annual basis) progress reports from each such 
department, agency, or unit; and

(3) consult with and solicit the recommendations 
of interested individuals, groups, and organi­
zations relating to equal employment opportunity.

The head of each such department, agency, or unit shall 
comply with such rules, regulations, orders, and 
instructions which shall include a provision that an 
employee or applicant for employment shall be notified 
of any final action taken on any complaint of discrimi­
nation filed by him thereunder. The plan submitted by 
each department, agency, and unit shall include, but 
not be limited to—

(1) provision for the establishment of training 
and education programs designed to provide a 
maximum opportunity for employees to advance
so as to perform at their highest potential; and

(2) a description of the qualifications in 
terms of training and experience relating to 
equal employment opportunity for the principal 
and operating officials of each such department, 
agency, or unit responsible for carrying out the 
equal employment opportunity program and of the 
allocation of personnel and resources proposed 
by such department, agency, or unit to carry out 
its equal employment opportunity program.

With respect to employment in the Library of Congress, 
authorities granted in this subsection to the civil 
Service Commission shall be exercised by the Librarian 
of Congress.

(c) Within thirty days of receipt of notice of 
final action taken by a department, agency, or unit 
referred to in subsection 717(a), or by the civil 
Service Commission upon an appeal from a decision 
or order of such department, agency, or unit on a 
complaint of discrimination based on race, color, 
religion, sex or national origin, brought pursuant 
to subsection (a) of this section, Executive Order 
11478 or any succeeding Executive orders, or after

2a



one hundred and eighty days from the filing of 
the initial charge with the department, agency, 
or unit or with the Civil Service Commission on 
appeal from a decision or order of such depart­
ment, agency, or unit until such time as final 
action may be taken by a department, agency, or 
unit, an employee or applicant for employment, 
if aggrieved by the final disposition of his 
complaint, or by the failure to take final action 
on his complaint, may file a civil action as 
provided in section 706, in which civil action the 
head of the department, agency, or unit, as 
appropriate, shall be the defendant.

(d) The provisions of section 706(f) through 
(k), as applicable, shall govern civil actions brought hereunder.

(e) Nothing contained in this Act shall 
relieve any Government agency or official of its
or his primary responsibility to assure nondiscrimi 
nation in employment as required by the Constitu­
tion and statutes or of its or his responsibilities 
under Executive Order 11478 relating to equal em­
ployment opportunity in the Federal Government.

3a



CERTIFICATE OF SERVICE

This is to certify that on this 12th day of July, 1976, 
copies of Brief For Appellant were served on counsel for 
the parties by United States mail, postage prepaid, addressed

John Terry, Esq.
Head, Appellate Division 
U. S. Attorney 
Room 3820 
U. S. Courthouse 
Washington, D. C. 20001

to:

Attorney For Appellant



4
IN THE

UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT 

NO. 76-1487

GEORGE V. FOSTER,
Appellant,

v.
L. QUINCY MUMFORD,
Librarian of Congress,

Appellee.

On Appeal From The United States District Court 
For The District Of Columbia

BRIEF FOR APPELLANT

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
MELVYN R. LEVENTHAL 
ERIC SCHNAPPER 
BILL LANN LEE 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

SHALON RALPH
8601 Springdell Place 
Chevy Chase, Maryland 20015

Attorneys for Appellant