Saunders v Claytor Petition for Writ of Certiorari
Public Court Documents
December 1, 1980
100 pages
Cite this item
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Brief Collection, LDF Court Filings. Saunders v Claytor Petition for Writ of Certiorari, 1980. 85cb71b0-c39a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/a3013057-b181-4b12-9e2a-ed849f7a4d9d/saunders-v-claytor-petition-for-writ-of-certiorari. Accessed July 07, 2025.
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October T erm, 1980
E tta B. Saunders,
y.
Petitioner,
W illiam Graham Claytok, Je.,
Secretary of the Navy, et al.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Jack Greenberg
James M. N abrit, I I I
Charles Stephen Ralston*
Suite 2030
10 Columbus Circle
New York, New York 10019
H oward Moore, Jr.
Moore & Bell
The London Building
160 Franklin Street
Oakland, California 94607
December, 1980.
Attorneys for Petitioner
* Counsel of Record
Questions Presented
1. Did the Equal Employment Opportunity Act
o f 1972, amending T i t l e V I I o f the C i v i l Rights
Act o f 1964, waive the f e d e r a l government 's
sovereign immunity from suit to enable a federa l
worker who proves race d iscr iminat ion in employ
ment to obtain the same cost o f l i v in g adjustments
to a back pay award that a pr iva te sector employee
could obtain under T i t l e VII?
P e t i t i o n e r contends that the court o f ap
pea l ' s holding that the Act did not, c o n f l i c t s
with this Court 's holdings in Brown v. General
Services Adminis tration, 425 U.S. 820 (1976) and
Chandler v . Roudebush, 425 U.S. 840 (1976 ) .
2. Did the Court o f Appeals e rr in holding
that p e t i t i on e r was e n t i t l e d to only a p a r t i a l
award of counsel fees because she prevai led on
only one part o f the case?
Part ies
Etta B. Saunders, P e t i t i o n e r .
Wil l iam Graham Claytor, J r . ,
Secretary of the Navy;
Warren S e l l s ; Alameda Naval A ir
Stat ion; J. M. Wo l f f ; Naval A ir
Rework F a c i l i t y , Alameda, C a l i f . ,
Respondents
i -
INDEX
Page
Questions Presented .......................................... i
Jur isdict ion ...................................... 2
Statutory Provis ions Involved ....................... 2
Statement o f the Case ....................................... 5
Reasons fo r Granting the Writ ...................... 13
I . THE DECISION OF THE COURT BELOW
RAISES IMPORTANT QUESTIONS
CONCERNING CONGRESSIONAL INTENT
WHEN TITLE V I I WAS MADE APPLI
CABLE TO THE FEDERAL GOVERN
MENT AND DIRECTLY CONFLICTS
WITH THE DECISIONS OF THIS
COURT IN CHANDLER V. ROUDEBUBH
and BROWN V. GENERAL SERVICES
ADMINISTRATION ...... .......................... 13
A. Importance o f The Issue . . . 13
B. Con f l ic t with Decisions
of This Court . . . . . . . . . 24
I I . THE DECISION BELOW ON COUNSEL
FEES CONFLICTS WITH CLEARLY
STATED CONGRESSIONAL INTENT
AS TO THE STANDARDS GOVERN
ING IN SUCH CASES AND PRE
SENTS AN ISSUE AS TO WHICH THE
CIRCUITS ARE IN CONFLICT ........... 30
C on c lu s io n ........ ..................... 36
Appendix ............................................................. la
l i -
TABLE OF AUTHORITIES
Cases:
Albemarle Paper Co. v . Moody, 422 U.S. 405
(1975) .......................................................... 19,29
Alexander v. Gardner-Denver Co., 415 U.S.
36 (1974) .................................................... 16
Blake v. Cali fano, 626 F .2d 891 (D.C.
1980) ............................................................ 18,30
Brown v. General Services Administration,
425 U.S. 820 (1976) .................... passim
Cannon v. Un ivers i ty of Chicago,
441 U.S. 677 (1979) ................................ 34
Chandler v. Roudebush, 425 U.S 840
(1976) .................................... passim
Chewning v. Schlesinger, 471 F. Supp.
767 (D.D.C. 1979) .................................... 18
Davis v. County o f Los Angeles, 8
E.P.D. 9444 (D.C. C a l i f .
1974) ................................................... 34,35
de Weever v. United States, 618 F .2d 685
(10th Cir. 1980) ...................................... 18
Eastland v. T .V .A . , 553 F .2d 364 (5th
Cir. 1977) .................................................. 17
Page
- i i i -
Page
E.E.O.C. v . P a c i f i c Press Publishing
Assoc. , ____ F. Supp. ____, 21 E.P.D.
30,522 (N.D. C a l i f . 1979) .................. 19
Fischer v. Adams, 572 F .2d 406 (1st
Cir. 1978) .................. 18
Franks v. Bowman Transportation Co.,
424 U.S. 747 (1976) ................................ 20,28
Gnotta v . United States, 415 F.2d 1271
(8th Cir . 1969) ........................................ 16
Love v. Pullman Co., 404 U.S 522
(1972) ........................................................... 23
Morton v. Mancari, 417 U.S 535 (1974) . . . . 14
Nadeau v. Helgemoe, 581 F.2d 275
(1st C ir . 1978) . .'............... 36
New York Gaslight Club, Inc. v . Carey,
____ U .S . ____, 64 L.Ed. 2d 723
(1980) .............................. 34
Northcross v. Board o f Education of
Memphis C ity Schools, 611
F .2d 624 (6th c i r . 1979) ...................... 36
Parker v. Cal i fano, 561 F.2d 320 (D.C.
Cir. 1977) .................................................. 34
Pettway v . American Cast Iron Pipe
Co. , 494 F .2d 211 (5th Cir.
1974) ................................ 20
- iv -
Page
Richerson v. Jones, 551 F .2d 918 (3rd
Cir. 1977) .................................................. 18
Stanford Daily v. Zurcher, 64 F.R.D.
680 (N.D. Cal. 1974) .............................. 35
United States v. Lee Way Motor Fre ight,
I n c . , 625 F .2d 918 (10th Cir.
1979) ............................................................ 19
United States v. Testan, 424 U.S.
392 (1976) .................................................. 15
Williams v. T .V .A . , 552 F .2d 691
(6th Cir . 1977) ........................................ 17
Statutes :
5 U.S.C. § 7151, 80 Stat. 523 (1966) ........ 14
42 U.S.C. § 1988 ................................................ 33
42 U.S.C. § 2000e ( b ) ...................... 14
42 U.S.C § 2000e-5 ............................ passim
42 U.S.C § 2000e-16 .......................................... passim
Other Author i t ies
CCH Employment Pract ices , § 5046 ................ 18
v
H. Rep. No. 92-238 (1971) .............................. 25
S. Rep. No. 92-415 (1971) ........................... 25
S Rep. No. 94-1011 (1976) ............................... 34
Sub Com. on Labor o f the Senate Comm,
on Labor and Public Welfare,
L e g i s l a t i v e History o f the Equal
Employment Opportunity Act o f 1972
(Comm. Print 1972) .............................. 26
Page
- v i -
No. 80-
In The
SUPREME COURT OF THE UNITED STATES
October Term, 1980
ETTA B. SAUNDERS,
Pe t i t i on e r ,
v.
WILLIAM GRAHAM CLAYTOR, JR . ,
Secretary of the Navy, et a l . ,
Respondents.
P e t i t i on for A Writ of C er t io ra r i
To The United States Court o f Appeals
for the Ninth Circuit
The p e t i t i on e r , Etta B. Saunders, respect
fu l l y prays that a writ of c e r t i o r a r i issue to
r e v iew the judgment and op in ion o f the United
States Court o f Appeals fo r the Ninth D is t r i c t
entered in th is proceeding on October 3, 1980.
The opinion of the Court of Appeals is reported at
629 F.2d 596 and is set out in the Appendix hereto
- 2 -
at pages l a - l l a . The op in ion o f the D i s t r i c t
Court o f July 11, 1978 is unreported and is set
out in the Appendix hereto at pages 12a-31a. The
orders o f the D i s t r i c t court dated Oct. 31,
1978, Dec. 12, 1978, Jan. 25, 1979, and March 16,
1979, awarding back pay, counsel fees , and denying
a new t r i a l are unreported and are set out in the
Appendix hereto at pp. 32a-36a; 37a-39a; 40a-43a;
44a-50a; and 51a-52a.
Jur isd ic t ion
The judgment o f the Court o f Appeals was
entered on October 3, 1980. Jur isd ic t ion of th is
Court is invoked under 28 U.S.C. § 1254 (1 ) .
Statutory Provis ions Involved
S ec t io n 7 1 7 ( b ) , ( c ) , and (d ) o f the Equal
Employment Opportunity Act o f 1972, amending T i t l e
V I I o f the 1964 C i v i l Rights Act, § 2000-e-16(b) ,
( c ) , and (d ) , provide, in pertinent part:
3
(b ) Except as o th e rw ise p rov ided in th i s
su b sec t io n , the C i v i l S e r v i c e Comiss ion*
shal l have authority to enforce the p rov i
s ions o f subsec t ion ( a ) o f th i s s e c t i o n
through ap p ro p r ia t e remedies , in c lu d in g
reinstatement or h i r ing o f employees with or
w i thout back pay, as w i l l e f f e c t u a t e the
p o l i c i e s o f t h i s s e c t i o n , and s h a l l issue
such ru les , regulat ions, orders and instruc
tions as i t deems necessary and appropriate
to carry out i t s r e s p o n s ib i l i t i e s under this
sect ion.
* * *
(c ) Within th i r ty days o f rece ip t of
no t ice of f in a l action taken by a department,
agency, or unit r e fe r red to in subsection (a )
o f t h i s s e c t i o n , or by the C i v i l S e r v i c e
Commission upon an appeal from a decis ion or
order o f such department, agency, or unit on
a complaint of d iscr iminat ion based on race,
c o l o r , r e l i g i o n , sex , or n a t i o n a l o r i g i n ,
brought pursuant to subsection (a ) o f this
sect ion, Executive Order 11478 or any succeed
ing Executive orders, or a f t e r one hundred
and e i g h t y days from the f i l i n g o f the
Under the Pres ident 's Reorganization Plan
No. 1, o f 1978 the functions o f the C i v i l Service
Commission under § 717 were t r a n s f e r r e d to
the Equal Employment Opportunity Commission as o f
January 1, 1979.
- 4 -
i n i t i a l charge with the department, agency,
or unit or with the C i v i l Service Commission
on appeal from a decis ion or order o f such
department, agency, or unit unt i l such time
as f in a l action may be taken by a department,
agency, or unit, an employee or applicant for
employment, i f aggr ieved by the f in a l dispo
s i t i o n of his complaint, or by the f a i lu r e to
take f i n a l a c t i o n on h is com pla in t , may
f i l e a c i v i l action as provided in sect ion
2000e-5 o f t h i s t i t l e , in wh ich c i v i l
ac tion the head o f the department, agency, or
unit, as appropriate , shal l be the defendant.
(d) The provis ions of sect ion 2000e-
5 ( f ) through (k ) o f this t i t l e , as app l ic
a b le , s h a l l govern c i v i l a c t ion s brought
hereunder.
Section 706(g) o f T i t l e V I I o f the 1964 C i v i l
R igh ts A c t , 42 U.S.C. § 2 0 0 0 e -5 (g ) , p r o v id e s :
(g ) I f the court f inds that the respon
dent has i n t e n t i o n a l l y engaged in or is
in ten t iona l ly engaging in an unlawful employ
ment p r a c t i c e charged in the com pla in t ,
the court may e n j o in the respondent from
engaging in such unlawful employment prac
t i c e , and order such a f f i rm a t iv e action as
may be appropriate, which may include, but is
not l imited to , reinstatement or h ir ing o f
employees, with or without back pay (payable
by the employer, employment agency, or labor
5
organization, as the case may be, responsible
for the unlawful employment p ra c t i c e ) , or any
o the r e q u i t a b l e r e l i e f as the court deems
approp r ia te . . . .
S e c t io n 706(k ) o f T i t l e V I I o f the 1964
C i v i l Rights Act, 42 U.S.C. § 2000e-5(k), pro
vides :
In any action or proceeding under this
subchapter the court, in i t s d iscre t ion , may
allow the p reva i l in g party, other than the
Commission or the United States, a reasonable
a t to rney 's fee as part o f the costs, and the
Commission and the United S ta tes s h a l l be
l i a b l e fo r costs the same as a pr iva te person.
Public L. 88-352, T i t l e V I I , § 706, July 2, 1964,
78 Stat. 259; Pub. L. 92-261, §§ 4, 11, Mar. 24,
1972, 86 Stat. 104.
Statement o f the Case —
These are two consolidated actions brought
pursuant to 42 U.S.C. § 2000e-16(c), T i t l e V I I
o f the C i v i l R igh ts Act o f 1964 as amended by
Section 717(c) o f the Equal Employment Opportunity
_1/ The fac ts set out herein are based on the
f indings o f fac t o f the d i s t r i c t court, which were
not challenged by the government in the court o f
appeals.
6
Act o f 1972. They were brought on behalf o f Mrs.
Etta B. Saunders, a Black woman employed by the
Department o f the Navy at the Naval A i r Rework
F a c i l i t y , Naval A i r Stat ion (NARF/NAS) Alameda,
Ca l i fo rn ia .
Mrs. Saunders was h i r ed on a temporary
appointment in November, 1966, as A i r c r a f t
Metalsmith Helper at NARF/NAS. By 1968 she had
been given a Career Conditional appointment as an
A i r c ra f t Metals Worker as a Wage Grade, or indus
t r i a l worker, at the WG-8 l e v e l . In la te 1968
Mrs. Saunders a p p l i ed f o r a promotion to the
pos i t ion o f an A i r c r a f t Metalsmith at the WG-10
l e v e l but did not r ece ive i t . In March, 1971, she
f i l e d a formal complaint o f discr imination charg
ing that she had been denied the promotion because
of her sex and race (App. , pp. 12a-13a).
On February 6, 1972, the S e c r e t a r y o f the
Navy held that p l a i n t i f f had been discriminated
against because o f her sex and ordered that she
rece ive appropriate r e l i e f . As a resu l t , in 1973
she was promoted to the WG-10 l e v e l (_Id_. > 13a-
14a). In addit ion to f i l i n g formal and informal
complaints of d iscr im ination on her own behalf ,
7
p l a i n t i f f represented other employees o f NARF in
equal employment opportunity matters and genera l ly
took an act ive r o le in attempts to promote equal
employment opportunity on the base. ( I d . , 17a-
23a). On March 19, 1973 p l a i n t i f f applied for
another promotion to Equal Employment Opportunity
Spec ia l i s t , a General Schedule pos i t ion at the
GS-9 l e v e l . Four EEO Spec ia l i s t pos it ions were
a d v e r t i s e d f o r which 14 persons a p p l i ed ( I d . ,
14a).
On A p r i l 2, 1973, while her application for
the EEO Spec ia l i s t pos i t ion was pending, p l a i n t i f f
was n o t i f i e d that her employment at NARF would be
te rm inated e f f e c t i v e June 1, 1973, because
o f the abo l i t ion of 108 o f the 145 WG-10 Sheet
Metal Mechanics pos i t ions, as part o f a Reduction
in Force (RIF) ( I d ., 25a). One week la te r , on
Apr i l 9, 1973, p l a i n t i f f was n o t i f i e d that she had
been rated in e l i g i b l e for the GS-9 EEO Spec ia l is t
pos i t ion even though, as the D is t r i c t Court found,
she had s u f f i c i e n t experience in the area of EEO
work to meet the qua l i f i c a t ion s established by the
C i v i l Service Commission ( I d . , 17a, 19a).
8
Only one o f the 14 applicants for the pos i
t ions was found q u a l i f i e d , and the Navy decided
to f i l l the remain ing th ree GS-9 S p e c i a l i s t
pos it ions through an a l te rna t ive s e lec t ion method
under which se lec tees were not required to meet
the educational and experience standards that had
been used to f ind Mrs. Saunders in e lg ib le (18a,
20a). As a resu lt a l l four pos it ions were f i l l e d
by men, even though p l a i n t i f f was b e t te r qu a l i f i ed
f o r the posit ions than at least two o f the men who
were placed in them. Indeed, p l a i n t i f f had more
EEO experience that any o f the four men se lected
(20a, 23a-24a).
The D i s t r i c t Court found that:
P l a i n t i f f was a h i g h l y v i s i b l e and a c t i v e
symbol o f equal opportunity at the NARF/NAS.
She had been the f i r s t female Navy employee
to p reva i l in a discr imination case. She had
been ac t ive throughout her employment as a
EEO r e p r e s e n t a t i v e f o r o the r m in o r i t y and
female employees (23a).
There fo re , the reasons given fo r not appointing
her to one o f the pos i t ions were pretextual , and
9
the rea l reason was to prevent her from get t ing
the pos i t ion and thereby to force her to leave the
base, since her ex is t ing job had been el iminted
as a resu l t o f the RIF (24a-25a).
The Court made a sp ec i f i c f inding that the
defendants' actions, "were the result o f d iscr im i
natory and/or r e t a l i a to ry animus", and concluded
that p l a i n t i f f had been denied her r ights under
T i t l e V I I (25a, 30a) . With regard to the RIF
action i t s e l f , the court held that i t had not been
taken in v i o la t io n o f T i t l e V I I (31a). However,
as noted above, the combined result o f the RIF and
the unlawful denial o f the EEO pos i t ion was to
force p l a i n t i f f out o f her employment and thereby
to get r id of her (24a-25a).
Because o f the administrat ive procedures for
processing complaints o f d iscr iminat ion in e f f e c t
in 1973, p l a i n t i f f f i l e d separa te complaints
regarding the two actions. The processing o f the
complaints f in ished at d i f f e r e n t times and because
of the 30-day time period for f i l i n g a T i t l e VI I
action against a federa l agency, she f i l e d two
separate complaints in federa l court (17a-18a;
27a-28a).
10
The compla ints were c o n s o l id a t e d f o r a l l
purposes and a s ing le t r i a l was held in 1978. At
the end o f the t r i a l the D is t r i c t Court he ld, as
described above, that the denial o f the promotion
was a de l ibe ra te act o f discr imination and r e p r i
sal and that although the RIF i t s e l f was nondis-
criminatory, the net resu lt was that p l a i n t i f f
los t a l l employment. The Court further found that
p l a i n t i f f had made e ve ry e f f o r t to ob ta in a
job but was unable to do so. T h e r e f o r e , she
remained unemployed from 1973 un t i l 1979 when she
was r e i n s t a t e d pursuant to the C o u r t ' s o r d e r .
The court ordered her r e t r o a c t i v e l y appointed
to an EEO sp ec ia l i s t postion at the GS-7 l e v e l
with promotions to the GS-9 and GS-11 l e ve ls as of
1974 and 1975. From the base amount o f back pay
which p l a i n t i f f would have r e c e i v e d from 1973
to 1979 i f she had not been denied the promotion
was deducted the severance pay and unemployment
2 /
insurance bene f i ts she did r e c e i v e .— . P l a i n t i f f
27 The base amount was $92,955.92, from which
was sub trac ted $4,619.11 in severance pay and
$1,620.00 in unemployment bene f i ts .
11
was also c red i ted with the amount o f sick leave
and annual l e a v e which had accumulated at the
time of her termination in 1973 (33a-36a).
A f t e r the ca lcu lat ion o f the net back pay the
court determined that i t would be ad jus ted by
an in f l a t i o n fac tor ca lcula ted according to United
States Department o f Labor cost of l i v in g data to
compensate her in constant dol lars to make her
whole for the in jury suf fered by the discrimina-
3 /
t i o n , — f o r a t o t a l award o f $102,948.52. The
court denied any award of in te res t , and p l a i n t i f f
did not appeal from this ru l ing . In a subsequent
order the D i s t r i c t Court determined that a reason
able amount o f counsel fees and costs would be
$69,015.00 (44a-50a).
The Un ited S ta tes d id not appeal from the
decis ion on the merits, but did appeal the amount
awarded as back pay, a rgu ing that the cos t o f
l i v in g adjustment used in ca lcu la t ing the award
was the same as an award o f in te res t . Interest
3/ The necessary adjustment was calculated to be
$16,231.72. The government has not disputed the
accuracy o f the amount.
12 -
was barred by sovereign immunity, the government
urged, since T i t l e V I I did not expressly provide
for awards o f in teres t against the government.
The defendant also appealed from the counsel fee
award, argu ing that no fe es should have been
granted f o r the work done on the Reduct ion in
Force claim because p l a i n t i f f had not p reva i led on
i t within the meaning o f 42 U.S.C. §2000e-5(k).
The Court o f Appeals ru led in the govern
ment 's f a v o r on both i s sues , h o ld in g not on ly
tha t f e d e r a l government employees cou ld " not
recover in te res t , but that, because of sovereign
immunity they could not be given any remedy other
than back pay to which p r i v a t e employees were
e n t i t l e d because those remedies were not enumer
ated in the statute .
The doctr ine o f sovereign immunity d i c
tates that the United States cannot be sued
w i thout i t s consent . The 1972 amendments
to T i t l e V I I authorize the remedy o f back pay
fo r employees of the United States government
who are v ictims o f d iscr im inat ion. See 42
U.S.C. § 2 0 0 0 e -5 (g ) . Although many a d d i
t iona l remedies, such as in teres t on back pay
awards, vacat ion and sick pay adjustments are
ava i lab le to p r iva te employees, these reme
dies are not ava i lab le to employees o f the
government because neither the 1972 amend
ments nor the in co rp o ra ted p r o v i s i o n s o f
T i t l e V I I expressly authorizes them.
13
629 F . 2d 596, 598; Appendix , pp. 6a~7a. Taking
into account cost of l i v in g increases in ca lcu la t
ing back pay, i t was held, was the same as pre
judgment in teres t .
With regard to attorneys ' fees the Court held
that since the p l a i n t i f f had not prevai led on the
RIF c la im as such, she was not e n t i t l e d to an
award o f fees with regard to any time expended on
that aspect o f the l i t i g a t i o n . The Court o f
Appeals there fore reversed the decis ion of the
d i s t r i c t court as to both issues raised by the
government.
Reasons for Granting the Writ
I.
THE DECISION OF THE COURT BELOW RAISES
IMPORTANT QUESTIONS CONCERNING CONGRESSIONAL
INTENT WHEN TITLE V I I WAS MADE APPLICABLE TO
THE FEDERAL GOVERNMENT AND DIRECTLY CONFLICTS
WITH THE DECISIONS OF THIS COURT IN CHANDLER
v. ROUDEBUSH and BROWN v. GENERAL SERVICES
ADMINISTRATION.
A. Importance o f the Issue
This case is the la te s t in a ser ies deal ing
with the important question o f the r ights of and
14 -
remedies ava i lab le Co employees o f the federa l
government who have suf fered unlawful discrimina
tion because o f the ir race or sex. See, Brown v .
General S e r v i c e s A d m in i s t r a t i o n , 425 U.S. 820
(1976 ) ; Chandler v . Roudebush, 425 U.S. 840
(1976); Davis v. Passman, 442 U.S. 228 (1979).
The common issue i s C ongress ' in t e n t when i t
enacted § 717 o f the Equal Employment Opportunity
Act o f 1972. I t s r e s o l u t i o n w i l l a f f e c t the
r ights of m i l l ions of federa l employees fo r whose
bene f i t the statute was enacted.
When Congress enacted the C i v i l Rights Act o f
1964 i t exc luded the Un ited S ta tes from the
d e f in i t i o n o f employer in sect ion 701(b) (42 U.S.C
§ 2000e(b). The sect ion did, however, provide
that the po l ic y o f the federa l government was to
make i t s employment decis ions f ree o f discr imina
t ion , and gave the President broad authority to
4/
implement that p o l i c y . - As a resu lt , the United
4/ 78 S ta t . 254 (1964 ) ; 5 U.S.C. § 7151, 80
Stat . 523 (1966); see, Morton v. Mancari, 417 U.S.
535, 546 (1974).
15
States C i v i l Serv ice Commission was given adminis
t r a t i v e author ity to enforce non-discrimination
throughout f e d e r a l employment by e x e c u t i v e
orders .
By 1971, however, there was great d i s s a t i s
fac t ion with the Commission's record in carrying
out i t s dut ies. A centra l problem resulted from
ques t ions as to the Commission 's a u th o r i t y to
r e q u i r e the f u l l remed ies , p a r t i c u l a r l y back
pay, n ecessa ry to ca r ry out i t s mandate. The
Commission 's s t a f f t e s t i f i e d b e f o r e Congress
that the Comptroller General had ruled that in
the absence o f statutory authori ty the Commission
could not order payment o f back pay to federa l
employees where there had been a d e n ia l o f a
promotion , as opposed to a d is ch arge C f . ,
United S ta tes v . T e s t a n , 424 U.S. 392 (1976 ) .
Congress was fu r th e r concerned whether
sovereign immunity precluded any ju d ic ia l remedy
5/ Testimony o f I rv ing Kator, Assistant Execu
t i v e D irector, United States C i v i l Service Commis
sion, Hearings Before the General Subcommittee on
Labor o f the Committee on Education and Labor,
House of Representative, on H.R. 1746, Washington,
D.C., March 3, 4, 18, 1971, at p. 365.
16 -
f o r federa l government employment discr imination
in l i g h t o f decisions such as Gnotta v. United
S ta tes , 415 F.2d 1271 (8th Cir. 1969). See, Brown
v. General Services Administration, 425 U.S. at
826-828. F i n a l l y , Congress had the o v e r a l l
concern that federa l employees did not have the
same r ights and remedies ava i lab le to them as did
a l l other employees faced with discr imination.
Chandler v. Roudebush, 425 U.S. at 841.
Following the enactment o f the Equal Employ
ment Opportunity Act o f 1972 (42 U.S.C. § 2000e-
16), the federa l government strenuously argued
i t s employees were not e n t i t l e d to the same
p rocedura l and su b s tan t i v e r i g h t s as were a l l
other employees. The centra l issues concerned the
r ights to a t r i a l de_ novo and to maintain class
actions. These arguments were seemingly la id to
r e s t by th i s C o u r t ' s d e c i s i o n in Chandler v .
Roudebush, supra , which he ld that the bas ic
purpose o f the 1972 Amendments was to grant
to f e d e r a l employees the same r i g h t s as those
enjoyed by a l l other employees, and s p e c i f i c a l l y
held that they were en t i t l ed to the same t r i a l de
novo as o the r employees were under A lexander
v . Gardner-Denver Co. , 415 U.S. 36 (1974 ) .
17
Following Chandler, the lower federa l courts held
that c la s s a c t io n s could a ls o be mainta ined
against federa l government agencies. See, e . g . ,
Eastland v. T .V .A . , 553 F .2d 364 (5th Cir. 1977);
Will iams v. T .V .A . , 552 F.2d 691 (6th Cir. 1977).
F i n a l l y , on August 31, 1977, the A t t o rn e y
General o f the United States issued a memorandum
to a l l United States attorneys and agency general
counsel announcing that the po l ic y o f the United
States would therea f te r be to acquiesce in these
rulings and that s p e c i f i c a l l y :
• • . [ t ]he Departm ent w i l l not u rge
arguments that r e ly upon the unique ro le o f
the Fede ra l Government. For example, the
Department recognizes that the same kinds o f
r e l i e f should be a v a i l a b l e a ga ins t the
Federa l Government as cour ts have found
appropriate in p r iva te sector cases, includ
ing imposition o f a f f i rm at ive action plans,
back pay and at torney 's fees. See Copeland
v . Usery , 13 EPD S 11,434 (D.D.C. 1976); Day
v. Mathews, 530 F . 2d 1083 (D.C. C ir . 1976);
Sperl ing v. United S ta tes , 515 F.2d 465 (3d
Cir. 1975). Thus, while the Department might
oppose par t icu lar remedies in a given case,
i t w i l l not urge that d i f f e r e n t standards be
applied in cases against the Federal Govern-
- 18 -
ment than are app l i ed in o th e r cases . ~
A f t e r only a r e l a t i v e l y short period, how
e v e r , in the face o f the d i r e c t i v e from the
Attorney General and rulings o f th is and other
c o u r t s , government a t t o r n e y s resumed making
arguments that f edera l employeres were e n t i t l e d to
fewer protect ions than others. In par t icu lar ,
ob ject ions were ra ised in a number of cases to
the awarding o f i n t e r e s t and cos t o f l i v i n g
adjustments to back pay on the ground that such
r e l i e f was barred by sovereign immunity. See,
Blake v . C a l i f a n o , 626 F . 2d 891 (D.C. 1980);
Chewning v . Sch les inger , 471 F. Supp. 767 (D.D.C.
19 79) ; F i s ch e r v , Adams, 572 F . 2d 406 (1s t
Gir. 1978); Richerson v. Jones, 551 F.2d 918 (3rd
Cir. 1977); de Weever v. United S ta tes , 618 F.2d
685 (10th Cir. 1980).
At no time did the government argue that such
remedies were not necessary to make federa l employ
ees whole for the e f f e c t s o f d iscr iminat ion. In
6/ The f u l l text o f the memorandum is reported
in CCH Employment P r a c t i c e s , f 5046. I t is
reproduced in the appendix hereto at pp.53a-55a.
19
the present case, for example, the respondent did
not challenge the d i s t r i c t cour t 's f inding that
the use o f cost o f l i v in g fac tor in ca lcu lat ing
back pay was "necessary to assure compensation in
'constant d o l l a r s ' " (App . , p. 34a); nor did the
government challenge the accuracy o f the amount
needed to make p l a i n t i f f whole. Indeed, fo r years
the government has r o u t i n e l y asked f o r , and
rece ived, adjustments to back pay to compensate
for the e f f e c t s of in f l a t i o n when i t has been the
p l a i n t i f f in T i t l e V I I cases. See, e . g . , United
States v. Lee Way Motor Fre ight , In c . , 625 F .2d
918, 940 (10th Cir . 1979); E.E.O.C. v. P a c i f i c Press
Publishing Assoc. , ____ F. Supp. ____, 21 E.P.D.
1 30,522, pp. 13,829-13,830 (N.D. C a l i f . 1979) . ~
The government has a l s o not d ispu ted that
such r e l i e f is mandated by th is Court's decis ion
in A lbemar le Paper Co. v . Moody, 422 U. S 405
(1975). As the Court explained:
JJ The government has also successful ly argued
that damage awards a ga ins t i t f o r l o s t fu tu re
wages should be discounted to take into account
the e f f e c t s o f future in f l a t io n when i t has been
the defendant in Federal Tort Claims Act. United
S ta tes v . E n g l i s h , 521 F . 2d 63, 76 (9th C i r .
1975); Steckler v. United States, 549 F.2d 1372,
1377-78 (10th Cir . 1977).
20
It. is also the purpose o f T i t l e V I I to make
persons whole f o r i n j u r i e s s u f f e r e d on
account o f unlawful unemployment d iscr imina
t i o n . . . . Where r a c i a l d i s c r im in a t i o n is
concerned, " th e [ d i s t r i c t ] court has not
mere ly the power but the duty to render
a decree which w i l l so fa r as poss ib le e l im
in a te the d i s c r im in a t o r y e f f e c t s o f the
pas t . . . . "
442 U.S at 418. S p e c i f i c a l l y , where the injury is
o f an economic character, the Court held that:
. . . "The injured party is to be placed, as
near as may be, in the s i t u a t i o n he would
have occup ied i f the wrong had not been
com m it ted . " Wicher v . Hoppoch, 6 Wal l
94, 99 (1867).
8 /
422 U.S. at 418-19.-* Here, as the d i s t r i c t
court found, the p l a i n t i f f could on ly be made
8/ See also, Franks v. Bowman Transportation
Co. , 424 U.S 747, 763-66 (1976), holding that a
grant o f r e t r o a c t i v e s e n i o r i t y needed to make
discr iminatees whole was permissible even though
such r e l i e f was not s p e c i f i c a l l y authorized by
§ 2Q0Qe-»5(g). S i m i l a r l y , as the court be low
recognized, many courts have granted other kinds
o f r e l i e f such as v a c a t i o n and s ick pay and
adjustments to pension r igh ts . See, e . g ., Pettway
v. American Cast Iron Pipe Co. , 494 F.2d 211, 263
(5th Cir. 1974), and cases c i t ed there at notes
155 and 156.
21
whole by putting her in the same pos i t ion as i f
she had rece ived her wages in the years they were
due.
I t is only because Mrs. Saunder's employer is
the federa l government that the f u l l r e l i e f to
which she would otherwise be c l e a r l y e n t i t l e d is
not forthcoming. P e t i t ion e r urges that th is case
presents an unusually egregious instance o f the
i n j u s t i c e that r e s u l t s from the government 's
arguments and presents a question o f v i t a l impor
tance to a l l federa l employees and indeed to the
e f f e c t i v e enforcement of one of the most important
of the c i v i l r igh ts statutes.
Mrs. Saunders s u f f e r e d the most in v id i o u s
type o f v i o l a t i o n o f T i t l e V I I , a de l ibe ra te act
of discr imination and r ep r isa l because she a t
tempted to assert her and others ' r ights under the
Constitution and laws o f the United States to be
free of unlawful d iscr iminat ion. As a result o f
the de l ibe ra te actions o f persons motivated by
a desire to get r id of her as a troublemaker, she
was w i thout employment f o r s i x y ea rs . She
suffered the loss of $86,716 income, but she could
not be fu l l y recompensed for her loss by paying
22 -
her Chat amount o f money years a f t e r she had been
wrongfully denied i t . The D is t r i c t Court found
(and the government has not ch a l len ged th i s
f i n d i n g ) th a t in o rde r to make the p l a i n t i f f
whole , that i s , to p lace her "as near as pos -
s i b i l e " in the f inan c ia l " s i tua t ion [she] would
have occupied i f the wrong'had not been committed"
the back pay award must be adjusted to take into
account the e f f e c t o f in f l a t io n .
The in ju s t ice to Mrs. Saunders is compounded
in the present case because although the govern
ment does not c o n t e s t the c o r r e c tn e s s o f the
underlying back pay award i t has not, as o f the
date of the f i l i n g of th is p e t i t i o n , paid i t to
her. The General Accounting O f f i c e has taken the
p o s i t i o n that s in ce the government has had an
appeal pending, the judgment is not f i n a l , and has
not al lowed payment. Thus, in the time since the
judgment was en te r ed in her f a v o r , the va lue
of the award to her has decreased from $86,716 to
23
$74,315.61 because o f i n f l a t i o n . — Accord ing
to the government and the court below this loss
w i l l never be made up to her.
I f the rul ing below is allowed to stand, not
on ly w i l l Mrs. Saunders and a l l o the r f e d e r a l
employees who have been found to have been the
v i c t im s o f d e l i b e r a t e d i s c r im in a t i o n s u f f e r
permanent and irremediable damage, but the law
i t s e l f w i l l su f fe r serious in jury . The D is t r i c t
Court found that Mrs. Saunders was the v ic t im of
an act o f r e p r i s a l f o r her seek ing to en fo r c e
r i g h t s under the a n t i - d i s c r im in a t i o n laws.
Those laws depend on ind iv idual employees being
w i l l i n g to come forward , f i l e com pla in ts , and
ass is t others in seeking the v ind icat ion of the ir
. 10/ „
r i g h t s .— I f they can be subjected to acts o f
r ep r isa l that can never be f u l l y recompensed, the
only resu l t w i l l be an inca lculably detrimental
impact on the enforcement of the law.
9/ The Consumer Pr ice Index was 217.7 in 1979
and was 253.9 in October, 1980. Therefore, the
do l la r had decreased in value by 85.7% in that
pe r iod .
10/ See, Love v . Pullman Co. , 404 U.S. 522
(1972).
- 24 -
For a l l o f these reasons, the present case
presents issues o f the utmost importance fo r the
con t in u in g v i a b i l i t y o f T i t l e V I I as a remedy
aga in s t d i s c r im in a t i o n by f e d e r a l government
agencies. As we w i l l show, the resu lt reached by
the court below is in square c o n f l i c t with the
in t e n t <jf Congress and w i th d e c i s i o n s o f t h i s
Court.
B . C o n f l i c t w ith D ec is ions o f th i s Court
As d esc r ib ed in d e t a i l in Brown v . GSA,
425 U.S. at 825-828, one of the primary concerns
o f Congress in 1972 was whether federa l employees
had e f f e c t i v e adminis trative and ju d ic ia l remedies
for employment discr im ination. The Court noted
that :
i t was doubt fu l that back pay or o the r
compensatory r e l i e f f o r employment d i s
crimination was a v a i l a b l e . . . .
Id. at 826.
I t was p rec is e ly because o f arguments based
on s o v e r e i g n immunity th a t the C ongress ion a l
committees concluded that even i f ju d ic ia l review
was ava i lab le , "some forms of r e l i e f were f o r e
c losed" . Thus,
25
[ t ]he Senate Report observed: "The testimony
o f the C i v i l Service Commission notwithstand
ing, the committee found that an aggreived
Federal employee does not have access to the
cou r t s . In many cases , the employee must
overcome a U.S. Government defense of sover
eign immunity or f a i lu re to exhaust adminis
t r a t i v e remedies with no cer ta in ty as to the
steps r e q u i r e d to exhaust such remedies .
Moreover, the remedial authority o f the Com
miss ion and the courts has a l s o been in
d o u b t . " S. Rep. No. 92-415, p. 16 (1971 ) .
425 U.S at 827-828.—— ̂ T h e r e f o r e , the Court
I
concluded, Congress was fu l l y aware that in the
past sovereign immunity had been a bar to federa l
employees obtaining f u l l r e l i e f .
Congress' intention that a l l such bars would
be removed by the 1972 enactment is equally c lear .
With regard to the powers o f the C i v i l Service
Commission the House-Senate Conference Com
m i t t e e ' s s e c t i o n - b y - s e c t i o n a n a ly s i s o f the
Act states:
The C i v i l Service Commission would be author
ized to grant appropriate remedies which may
11/ See also H. Rep. No. 92-238, p. 25 (1971),
quoted at 425 U.S. at 828.
26
include, but are not l im ited t o , back pay for
a g g r i e v e d a p p l i c a n t s or employees . Any
remedy needed to f u l l y recompense the em
p l o y e e f o r h i s l o s s , both f i n a n c i a l and
pro fess iona l , is considered appropriate under
th i s subsec t ion . (emphasis added) . 12/
That the courts were to have remedial power
as broad as that given to the Commission is also
evident. Congress' way o f reaching this result
was simple; f edera l employee T i t l e V I I actions
were to be governed by p re c is e ly those provis ions
that govern p r iva te employer su its . As the Senate
report s t a t e s :
12/ Sub. Com. on Labor o f the Senate Comm, on
Labor and Public Welfare, L e g i s l a t i v e History o f
the Equal Employment Oppor tun i ty Act o f 1972
(Comm. P r in t 1 9 7 2 ) ( h e r e i n a f t e r " L e g i s l a t i v e
H i s t o r y " ) , p. 1851. S i m i l a r l y , the Senate
Report States:
[T]he prov is ion in sect ion 717(b) fo r
applying "appropriate remedies" is intended
to strengthen the enforcement powers o f the
C i v i l Service Commission by providing statu
t o r y a u t h o r i t y and support f o r o rd e r in g
whatever remedies or a c t ion s by Fede ra l
agencies are needed to ensure equal employ
ment opportunity in Federal employment... .
27
Aggrieved employees or applicants w i l l also
have the f u l l r igh ts ava i lab le in the courts
as are granted to indiv iduals in the pr ivate
sector under T i t l e V I I . 13/
This was ensured by s p e c i f i c a l l y s t a t i n g in
§ 717(d ) (42 U .S.C . § 2 0 0 0 e -1 6 (d ) ) that c i v i l
actions f i l e d by federa l employees were governed
by the pr iva te sector sections o f the Act, thus
according " f e d e ra l employees the same r i g h t [ s ] "
en joyed by a l l o the r employees. Chandler v .
Roudebush, 425 U.S 840, 848 (1976).
As th is Court held in Brown:
Sec t ion s 7 0 6 ( f ) through ( k ) , 42 U.S.C.
§§ 2 0 0 0 e - 5 ( f ) th ro u gh 2 0 0 0 e - 5 ( k ) . . . .
which are in co rp o ra ted "as a p p l i c a b l e " by
12/ continued
The Commission is to provide Federal agencies
w ith necessa ry guidance and a u t h o r i t y to
e f fe c tua te necessary remedies in invid idual
cases , in c lu d in g the award o f back pay,
r e in s ta tem en t or h i r i n g , and immediate
promotion where appropriate.
L e g i s l a t i v e History at 424.
13/ L e g i s l a t i v e History at 425.
28 -
§ 717(d), govern such issues as venue, the
appointment o f at torneys, at torneys ' fees ,
and the scope o f r e l i e f .
14/
425 U.S. at 832 (emphasis a d d e d ) . --- S ec t io n
706(g) i t s e l f i s , o f course, not l im ited in any
way to back pay; to the contrary , i t provides that
the court may order r e l i e f , "as may be appropri
ate, which may include, but is not l im ited to, . . .
back pay . . . or any o the r e q u i t a b l e r e l i e f as
the court deems appropr iate . " (Emphasis added.)
As th i s Court noted in Franks v . Bowman
Transportation Co. , 424 U.S. 747, 763-64, n . 21
(1976), the phrase "any other equitable r e l i e f "
was added to 706(g) by Congress in the 1972 Act,
which also made the sect ion applicable to federa l
14/ As the Court explained in Chandler, the only
l i m i t i n g language in § 717 (d ) , the phrase "as
a p p l i c a b l e " , d id no more than r e f l e c t " th e
in a p p l i c a b i l i t y o f provis ions in § § 706( f ) through
(k ) d e ta i l in g the enforcement r e s p o n s ib i l i t i e s o f
the EEOC and the Attorney genera l " , (425 U.S at
847) and d id not in any way l i m i t the r i g h t s
ava i lab le to f edera l employees in court.
- 29
agencies, to confirm the courts ' power to e f f e c t
complete r e s t i t u t i o n , "making whole i n s o fa r
as poss ib le the victims o f r a c ia l d iscr im inat ion . "
424 U.S. at 764.
Here, o f c ou rse , the d i s t r i c t court found
that a cost o f l i v in g adjustment in the back pay
award was both ap p ro p r ia t e and necessa ry to
a f fo rd complete r e l i e f , and neither the government
nor the court o f appeals has con tes t ed that
conclusion. Instead they have decided that i t may
not be awarded to Mrs. Saunders so l e l y because she
is employed by a federa l agency. Her pos i t ion is
simple; sect ion 717 was intended to be a complete
and t o ta l waiver o f sovereign immunity so that a
federal agency is on p rec ise ly the same foot ing as
any other employer. The decis ion below holding
otherwise is contrary to the pla in meaning o f the
s t a tu t e , c l e a r c o n g r e s s io n a l i n t e n t , and the
decisions o f this Court, none of which are even
c i t ed , l e t alone discussed, in i t s opinion.——̂
15/ Indeed, none of the decisions o f the courts
o f appeals rul ing on the issues o f cost o f l i v in g
or in teres t awards even mention Albemarle, Franks,
30
This Court should grant c e r t i o r a r i t o r e s o l v e
these c o n f l i c t s and decide the important issues
presented by th is case.
I I .
THE DECISION BELOW ON COUNSEL FEES CONFLICTS
WITH CLEARLY STATED CONGRESSIONAL INTENT AS
TO THE STANDARDS GOVERNING IN SUCH CASES,
AND PRESENTS AN ISSUE AS TO WHICH THE CIR
CUITS ARE IN CONFLICT.
The counsel fees issue presented by th is case
is an important and r e c u r r in g one which has
resulted in a d iv i s ion between the c i r c u i t s : to
what ex ten t should a p r e v a i l i n g p l a i n t i f f ' s
counsel f e e s be reduced i f he or she has not
p r e v a i l e d in a l l aspects o f the l i t i g a t i o n ?
In c i v i l r igh ts l i t i g a t i o n , and p a r t icu la r ly
in employment discr im inat ion cases, issues are
overlapping and intertwined. In order to rep-
15/ continued
Brown, or Chandler, or discuss in any meaningful
way the l e g i s l a t i v e h i s t o r y o f the 1972 A c t .
These matters were b r ie fed in the present case and
in Blake v . C a l i f a n o , 626 F .2d 891 (D.C. C i r .
1980).
- 31 -
r es en t a c l i e n t adequate ly an a t t o r n e y must
explore f u l l y every aspect o f a case, develop a l l
evidence and present i t to the court. In many
cases the p l a i n t i f f w i l l not be successful with
regard to every contention.
The p resen t case is a p a r t i c u l a r l y good
example o f such a s i t u a t i o n . There was in
fact one centra l issue in the case, v i z ■, why had
p l a i n t i f f los t her employment at the Naval A ir
Rework F a c i l i t y ? This came about because o f the
conjunction o f two events that occurred within
a week o f each other. Ms. Saunders was informed
on A p r i l 2, 1973, that she would be terminated
because o f a RIF, and on A p r i l 9, 1973, she was
n o t i f i e d that she would not be cons idered f o r
another pos i t ion that would have allowed her to
remain. Naturally , she suspected some connection
between the two events, par t i cu la r ly in l i gh t o f
her p r io r EEO a c t i v i t i e s .
In A p r i l , 1973, o f course, p l a i n t i f f had no
way o f knowing whether the denial of the promo
t i o n , the RIF , or both , had d i s c r im in a t o r y
m ot iv es . T h e r e f o r e , she had no cho ice but to
32
challenge both actions. Because o f the structure
o f the “C i v i l Service Commission regulatory scheme,
there were two separate adminis trative proceedings
that ended at d i f f e r e n t times. Thus, instead of
there being one lawsuit f i l e d , p l a i n t i f f had to
f i l e two at d i f f e r e n t t im es . S ince the two
actions involved the same issue— the termination
o f her employment— they were c o n so l id a t e d and
t r ied as one action. The in te r re la t ion sh ip o f the
RIF and the promotion denial meant that counsel
worked on them at the same time.
P l a i n t i f f ’ s su sp ic io n that th ere was a
re la t ionsh ip between the RIF and the promotion
denial proved cor rec t . The d i s t r i c t court held
that the re fusa l to consider her for the promotion
that would have a l lowed her to s tay was to
prevent her from ge t t ing the job and thereby to
force her to leave the Base as a resu lt o f the
RIF.
Although the RIF i t s e l f was not the resu lt o f
discr imination, i t was seized upon by the dis~
criminating o f f i c i a l s as the way to get r id of
33
the p l a i n t i f f when they denied her the promotion.
Thus, in e v e r y sense o f the word, p l a i n t i f f
preva i led on the central claim in the case— that
she was f o r c e d to leave the base because o f
"d iscr im inatory and/or r e t a l i a t o r y animus."— ̂
The i n t e r r e l a t i o n s h i p o f issues in c i v i l
r ights cases was recognized by Congress when i t
passed the C i v i l Rights Attorneys ' Fee Act o f 1976
(42 U.S.C. § 1988). Thus, the l e g i s l a t i v e h is tory
of that statute makes i t c lear that counsel fees
awards should not be based on the p ro p o r t ion
o f the case that has been won.— ̂ The Senate
Report on the Act discusses the standards which
should be used in determining counsel fee amounts
and states :
16/ I t is in teres t ing to note that even i f the
d i s t r i c t court had found the RIF, in and o f i t s e l f ,
to be a v i o l a t i o n of T i t l e V I I , p l a i n t i f f would
have rece ived no more r e l i e f than she did as a
result o f winning on her promotion claim. The RIF
did not take e f f e c t u n t i l June 1, 1973, a f t e r
Apr i l 30, 1973, the e f f e c t i v e date of the promo
tion which she r e t r o a c t i v e l y rece ived.
17/ This Court has held that the l e g i s l a t i v e
h i s t o r y o f the 1976 act may be looked to in
in terpre t ing the p a ra l l e l counsel fees provis ion
34
The a p p ro p r ia t e s tandards , see Johnson v .
Georgia Highway Express, 488 F . 2d 714 (5th
C i r . 1974) , a re c o r r e c t l y a p p l i ed in such
cases as Stanford Daily v. Zurcher, 64 F.R.D.
680 (N.D. Cal. 1974); Davis v. County o f Los
Ange les , 8 E.P.D. 9444 (D.C. C a l i f . 1974);
and Swann v. Charlotte-Mecklenburg Board o f
E du ca t ion , 66 F .R .D. 483 (W.D.N.C. 1975).
. . . . In computing the f e e , counse l f o r
p r e v a i l i n g p a r t i e s should be pa id , as is
t r ad i t i on a l with attorneys compensated by a
fee-pay ing c l i e n t , " f o r a l l time reasonably
expended on a matter , " Davis , supra, Stanford
D a i l y , supra, at 684.
S. Rep. No. 94-1011 (94th Cong. 2d Sess . ) , p. 6.
The quoted language from Davis r e l a t e s
d i r e c t l y to the question o f proportionate fees .
I t a l s o i s not l e g a l l y r e l e v a n t that
p l a i n t i f f s ' counse l expended a c e r t a in
l im i t e d amount o f t ime pursuing c e r t a i n
issues of fact and law that u l t imate ly did
not become l i t i g a t e d issues in the case or
17/ continued.
in T i t l e V I I . New York G a s l i g h t Club, Inc v .
C a re y , ____ U.S. ____, 64 L .Ed.2d 723 , 738 n.9
(1980 ) . See a l s o , Cannon v . U n i v e r s i t y o f
Chicago, 441 U.S. 677, 686, n. 7 (1979); Parker
v. Ca l i fano , 561 F . 2d 320, 339 (D.C. C ir . 1977).
35
upon which p l a i n t i f f s u l t im a t e l y d id not
p re va i l . Since p l a i n t i f f s prevai led on the
merits and achieved exce l len t results fo r the
represented c lass , p l a i n t i f f s ' counsel are
e n t i t l e d to an award o f f e e s f o r a l l time
r e a s o n a b l y expended in p u r s u i t o f th e
ultimate result achieved in the same manner
that an attorney t r a d i t i o n a l l y is compensated
by a fee-pay ing c l i e n t for a l l time reason
ably expended on a matter.
8 EPD 9444, p. 5049. S i m i l a r l y , in Stanford
18 --------------
v a i L y ,— at the page c i t e d in the l e g i s l a t i v e
h is to ry , the d i s t r i c t court re jec ted the posit ion
taken by some federa l courts, "that hours spent on
the l i t i g a t i o n o f unsuccessful claims should be
deducted from the number o f hours upon which an
attorneys ' fee award is computed," and fol lowed
other decisions that, "adopting a d i f f e r e n t tack,
deny fees for c l e a r l y mer i t less claims but grant
fees f o r l e g a l work r easonab ly c a l c u la t e d to
advance th e i r c l i e n t s ' i n t e r e s t s . " 64 F.R.D. at
684.
The question o f the extent to which a pre
v a i l in g par ty 's fees must be apportioned between
issues won and los t has caused d iv is ion among the
18/ A f f ' d 550 F .2d 464 (9th Cir. 1977), r ev 'd on
other grounds. 436 U.S 547 (1978).
- 36
c i r c u i t s , ranging in holdings that fees should be
granted for a l l work reasonably done and denied
only for f r i vo lous claims ( Northcross v. Bd. o f
Ed. , 611 F.2d 624 (6th Cir. 1979)) , to holding
that fees may only be given for that part o f the
case that was won (Nadeau v. Helgemoe, 581 F.2d
275 (1 s t C i r . 1 9 78 ) ) . I t i s a r e c u r r in g and
important question in c i v i l r igh ts l i t i g a t i o n in
g en e ra l and should be r e s o l v e d by t h i s Court.
CONCLUSION
For the foregoing reasons, the p e t i t i o n fo r a
w r i t o f c e r t i o r a r i should be granted and the
decis ion of the court below reversed.
JACK GREENBERG
JAMES M. NABRIT, I I I
CHARLES STEPHEN RALSTON
Suite 2030
10 Columbus C irc le
New York, New York 10019
HOWARD MOORE, JR.
Moore & Bel l
The London Building
160 Franklin Street
Oakland, C a l i fo rn ia 94607
Attorneys for Pet i toner
December, 1980.
APPENDIX
DECISION OF THE COURT OF APPEALS,
OCT. 3, 1980
No. 79-4373
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ETTA B. SAUNDERS,
P la in t i f f -A p p e l l e e ,
v.
WILLIAM GRAHAM CLAYTOR, JR.,
Secretary o f the Navy, et a l . ,
Defendants-Appellants.
On Appeal from the United States D is t r i c t
Court fo r the Northern D is t r i c t o f C a l i fo rn ia
OPINION
Before: ANDERSON AND ALARCON, Circuit Judges, and
WILLIAMS, D is t r i c t Judge.*
WILLIAMS, D is t r i c t Judge:
* the Honorable David W. Wil liams, United
States D is t r i c t Judge fo r the Central D is t r i c t o f
C a l i fo rn ia , s i t t i n g by designation.
- 2a
This case presents the fo l low ing questions on
appeal, (1 ) whether the d i s t r i c t court 's award o f
a "cost o f l i v in g in f l a t i o n fa c to r " adjustment in
addition to a back pay award against the United
States under T i t l e V I I is barred by the doctr ine
o f Sovereign immunity; and (2) whether the d i s
t r i c t court erred in awarding a ttorneys ' fees for
a l l work performed by p l a i n t i f f ' s counsel in two
consolidated T i t l e V I I cases even though p l a i n t i f f
preva i led in only one of them.
P l a i n t i f f E t ta Saunders, a Negro female ,
brought two employment d i s c r im in a t i o n su i t s
against the Secretary o f the Navy and others under
T i t l e V I I , 42 U.S.C. §§ 2000e et_ seq_. In the
f i r s t act ion (CV 73—2241 WHO), she contested her
removal from employment as a resu l t o f a reduction
in force (R IF ) . In the second action (CV 74-1286
WHO), she challenged her denial o f e l i g i b i l i t y fo r
the p o s i t i o n o f Equal Employment Opportun i ty
S p e c ia l i s t .
P l a i n t i f f was employed at the Naval A i r
Rework F a c i l i t y as an A i r c r a f t Meta lsmith , a
pos i t ion she had obtained as a result o f de te r
m inat ion by the Navy Department in 1968 that
she had been denied promotion on the basis of sex
- 3a -
d i s c r im in a t i o n . In March o f 1973, p l a i n t i f f
a p p l i ed f o r the p o s i t i o n o f Equal Employment
Opportunity (EEO) Spec ia l is t but was rated in
e l i g i b l e fo r that pos it ion. At approximately the
same time, she was also to ld that because o f a
reduction in force of 108 pos i t ions, her employ
ment as A i r c r a f t Metalsmith would be terminated.
One of p l a i n t i f f ' s f e l low employees f i l e d an
A d m in i s t r a t i v e appeal on b e h a l f o f h im s e l f ,
p l a i n t i f f , and the other employees a f fec ted by the
RIF. P l a i n t i f f as an in d i v i d u a l f i l e d an EEO
complaint with the Navy Department a l l e g ing that
the RIF was based on race and sex discrimination
aga in s t her . The Navy Department upheld the
RIF, and p l a i n t i f f then f i l e d a complaint against
the Navy in d i s t r i c t court under T i t l e V I I .
P l a i n t i f f also f i l e d an EEO complaint with
the Navy a l l e g in g that her i n e l i g i b i l i t y rat ing
for the EEO S pec ia l i s t pos i t ion was based on race
and sex d i s c r im in a t i o n . The Navy Department
upheld the ra t ing . P l a i n t i f f la t e r f i l e d a second
complaint under T i t l e V I I chal lenging the Navy's
d e n ia l o f her a p p l i c a t i o n f o r the p o s i t i o n .
- 4a -
The two cases were c o n s o l id a t e d and t r i e d
together . The d i s t r i c t court held that p l a i n t i f f
had not demonstrated " th a t she was RIFed in
r e t a l i a t i o n f o r having opposed a l leged discr imina
tory employment pract ices and/or having f i l e d ( in
1968) a complaint against the agency" or "that she
was RIFed on the grounds o f her sex ( female ) or
her r a c e . " However, the court a l s o he ld that
p l a i n t i f f had proven "that she ws rated in e l i g i b l e
f o r the p o s i t i o n o f EEO S p e c i a l i s t , GS-9, in
r a t a l i a t i o n fo r her opposit ion to unlawful employ
ment pract ices and/or f o r having f i l e d a complaint
o f unlawful (employment) d iscr im inat ion against
the agency" as w e l l as "on the grounds o f her
s ex ."
On October 31, 1978, the court ordered that
p l a i n t i f f be promoted to the p o s i t i o n o f EEO
Spec ia l i s t at the l e v e l o f GS-11, the same l e v e l
that she would most l i k e l y have atta ined had she
been h ired for that pos i t ion on A p r i l 30, 1973.
P l a i n t i f f was awarded back pay o f $92,955.92,
which supposed ly inc luded amounts she would
have rece ived fo r promotions and appropriate step
in c r e a s e s . C i t i n g R icherson v . Jones, 551
- 5a -
F. 2d 918, 925 (3d Cir . 1977), the court denied
in teres t on the back pay award.
In addit ion to back pay, the court awarded a
" c o s t o f l i v i n g i n f l a t i o n f a c t o r " adjustment
amounting to $16,231.72 due through July o f 1978.
In i t s order the court stated that th is award was
necessa ry to assure compensation in "cons tant
do l la r s " because ca lcu la t ion o f p l a i n t i f f ' s back
pay award would be based upon f e d e r a l s a la r y
schedules in e f f e c t during pr io r years.
The court also awarded p l a i n t i f f $69,015 in
a t t o r n e y s ' f e e s under 42 U.S.C. § 2000e-5 (k )
fo r a l l work performed by counsel on both cases.
The C e r t i f i c a t e of Counsel in Support o f Request
f o r A t t o r n e y s ' Fees submit ted by p l a i n t i f f ' s
attorney did not contain a breakdown of how much
time was spent on each case.
The Navy appealed from this judgment chal
l eng ing on ly the i n f l a t i o n f a c t o r adjustment
and the at torneys ' fees award.
INFLATION FACTOR AWARD
The d i s t r i c t court should be reversed on i ts
"cost of l i v in g in f l a t i o n fa c to r " adjustment. I t
- S a
ls important f i r s t to id e n t i f y p re c is e ly the nature
o f th is award. The d i s t r i c t cour tsough t to make
p l a i n t i f f whole by plac ing her in the same pos i
t ion she would have at tained had she been hired as
an EEO S p ec ia l i s t on Apr i l 30, 1973. According to
the court 's order o f October 31, 1978, the court
assumed entry into the S p ec ia l i s t pos i t ion at the
GS-7 l e v e l , promotion to GS-9 a f t e r one y ea r ,
promotion to GS-11 a f t e r a second y ea r , and
appropriate step increases to the time o f judg
ment. The ca lcu la t ion o f back pay was based on
salary schedules in e f f e c t during each o f those
y ea rs . The c a l c u l a t i o n inc luded amounts f o r
promotions, ra ises , and step increases, a l l o f
which presumably already r e f l e c t e d any cost o f
l i v in g adjustment. Over and above this back pay
award, the court awarded an addit ional in f l a t i o n
fac tor adjustment, which i t explained as "neces
sary to assure compensation in 'constant d o l l a r s ' ,
because ca lcu la t ion o f p l a i n t i f f ' s back pay award
(would) be based upon federa l sa lary schedules in
e f f e c t during p r io r y ea rs . "
The doctr ine o f Sovereign immunity d ic ta tes
that the United States cannot be sued without i t s
consent. The 1972 amendments to T i t l e V I I author
7a
i ze the remedy o f back pay for employees o f the
United S ta te s government who are v i c t im s o f
d i s c r im in a t i o n . See 42 U.S.C. § 2 0 00 e -5 (g ) .
Although many addit ional remedies, such as in
te res t on back pay awards, vacat ion and s ick pay
adjustments are ava i lab le to pr ivate employees,
these remedies are not ava i lab le to employees o f
the government because neither the 1972 amendments
nor the in co rp o ra ted p ro v i s i o n s o f T i t l e V I I
expressly authorizes them. I t is we l l se t t led
case law that an award of in terest on back pay is
not a v a i l a b l e to government employees absent
express statutory or contractural author ization.
United S ta tes v . A lc ea Band o f Ti l lamooks, 341
U.S. 48, 49 (1951); Fischer v, Adams, 572 F.2d
406, 411 (1st Cir. 1978); Richerson v. Jones, 551
F.2d 918 (3d Cir . 1977).
The i n f l a t i o n f a c t o r in th is case is ve ry
s imilar to an award o f in teres t in that both types
of awards are meant to compensate the v ic t im for
the b e la t e d r e c e i p t o f employment pay. The
in f l a t io n fac to r adjustment is actual ly be t te r
compensation than an award o f in teres t since the
normal 7% in teres t award would not in these times
- 8a
make up f o r the double d i g i t i n f l a t i o n . In
essence , the i n f l a t i o n f a c t o r adjustment is a
disguised in te res t award, which is not permitted
under present law.
The Case of Blake v. C a l i fano , No. 78-2075
(D.C. Cir. Jan. 30, 1980) and Chewning v, Schle-
s inge r , 471 F. Supp. 767, 777 (D.D.C. 1979), held
that an in f l a t i o n fac to r award added to a back pay-
award against the government was an ind irect award
o f in te res t and there fore barred by the doctr ine
o f Sovereign immunity.
The case c i t e d by the d i s t r i c t court in
support o f i t s in f l a t i o n fa c to r award, Lockheed
Minori ty S o l id a r i t y Coa l i t ion v. Lockheed Miss i les
& Space Co. , 406 F. Supp. 828, 834 (N.D. Cal.
1976), i s i n a p p o s i t e . I t does not address
the issue o f an in f l a t i o n fa c to r adjustment but
r a th e r is a case on a t t o r n e y s ' f e e s a ga in s t a
p r i v a t e l i t i g a n t , and i t does not t h e r e f o r e
invo lve the issue o f Sovereign immunity.
Appel lee r e l i e s on a po l ic y statement issued
in 1977 by former A t t o r n e y General G r i f f i n
Be l l to a l l United States Attorneys and agency
g en era l c oun se l . A p p e l l e e contends that th i s
9a
statement supports the g en e ra l p r i n c i p l e that
T i t l e V I I cases against the United States are to
be t r e a t e d the same as p r i v a t e s e c t o r cases.
A p p e l l e e a ls o r e l i e s on the 1972 amendments
to T i t l e V I I which gave broad new powers to the
C i v i l S e r v i c e Commission to p rov ide whatever
remedies or a c t i o n are needed to ensure equal
employment o p p o r tu n i t y in f e d e r a l employment.
42 U.S.C. § 2000e-16(b). She argues that Congress
intended to c o n fe r g r e a t l y enhanced r i g h t s on
federa l employees to obtain administrative and
ju d i c i a l r e l i e f against the ir federa l employer and
that the in c lu s i o n by cour ts o f an i n f l a c t i o n
fac tor award among the ava i lab le remedies would
further that Congressional intent. These argu
ments miss the mark. Neither the po l icy statement
o f the Un ited S ta tes A t to rn ey General nor the
broad powers c o n fe r r e d on the C i v i l S e r v i c e
Commission amount to the express wa ive r o f
Sovereign immunity necessary to j u s t i f y an award
o f in t e r e s t .
ATTORNEYS' FEES
We f ind that the t r i a l court erred by award
ing a t t o rneys ' fees for both the RIF and the EEO
10a
cases . I t is undisputed that the p l a i n t i f f
preva i led in but one of them. I t is a stretch o f
Congressional intent to hold that there existed
such an id en t i t y o f issues in the two suits that
p l a i n t i f f ' s attorneys research and work in each
case should be compensated.
Since Alyeska P ipe l ine Service Co. v. Wilder
ness S o c ie t y , 421 U.S. 240 (1975) courts no longer
should apply h i s t o r i c a l e q u i t a b l e powers to
j u s t i f y a fee award in a so -ca l led p r iva te a t t o r
ney general case. Fol lowing Alyeska, Congress
enacted the C i v i l Rights Attorney 's Fees Awards
Act of 1976 (42 U.S.C. § 1988) and now such an
award is the e x e r c i s e o f a s t a t u t o r y remedy.
Saunders had two separate pieces o f l i t i g a
t ion which were consol idated f o r t r i a l purposes.
She los t the RIF case. No issue raised in that
case was sus ta in ed . She p r e v a i l e d in the EEO
case. This is the only case in which i t is proper
under the mandate of Congress to award a fee . The
mere locking together o f the two cases under a
consolidation order does not turn a los t case into
one in which the party may be said to have pre
va i led .
11a
Appellees re l iance on Northcross v. Board o f
Ed. o f Memphis C ity Schools, 611 F„2d 624 (6th
Gir. 1979) is misplaced. There i t was held that
the t r i a l judge erred in cutting the award o f fees
because the p l a i n t i f f s had not prevai led on some
issues or parts o f issues in the case. Northcross
was a s ing le case and the appellate court c o r r e c t
ly held i t to be improper to cu l l out and refuse
fee award for parts of the to ta l issues ra ised,
which were not persuasive in the reaching o f the
f i n a l d e c i s i o n . "So long as the par ty has
preva i led on the case as a whole, the d i s t r i c t
courts are to a l l o w compensation f o r hours
expended on unsuccessful research or l i t i g a t i o n ,
unless the pos it ions asserted are f r ivo lous or
in bad f a i t h " (P. 636).
On remand the Court should consider only that
port ion o f the claimed fees that r e la te to the
EEO case and deny the remainder.
Reversed.
- 12a -
OPINION OF THE DISTRICT COURT,
July 11, 1978
No. C-73-2241 WHO
No. C-74-1286 WHO
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
ETTA B. SAUNDERS,
P la in t i f f - A p p e l l e e ,
v.
WILLIAM GRAHAM CLAYTOR, JR.,
Secretary o f the Navy, et a l . ,
Defendants-Appellants.
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
Pursuant to Rule 52 o f the Federal Rules o f
C i v i l Procedure, the Court makes the fo l low ing
f indings o f fac t and conclusions o f law.
FINDINGS OF FACT
A. EEO Spec ia l i s t Case
1. On November 14, 1966, p l a i n t i f f was
hired at the Naval A i r Rework F a c i l i t y ("NARF"),
13a -
Alameda, C a l i fo rn ia , on a temporary appointment,
as a Helper, A i r c ra f t Metalsmith, WG-5/1. At that
time, p l a i n t i f f had approximately three years and
seven months o f i n t e r m i t t e n t f e d e r a l s e r v i c e .
2. On June 14, 1968, p l a i n f i f f was promoted
to A i r c r a f t Metals Worker, WG-8/1, and was given
an appointment as a Career-Conditional employee.
3. Later in 1968, p l a i n t i f f also applied
for the pos i t ion o f A i r c ra f t Metalsmith, WG-10,
which had been annnounced under Announcement No.
FS 6-CL. P l a i n t i f f did not rece ive the promotion
which she sought and, on March 26, 1971, p l a i n t i f f
f i l e d a formal complaint a l l e g ing that the fa i lu re
to promote her was due to d i s c r im in a t i o n in
employment on the grounds o f her sex ( f e m a le )
and her race (B lack).
4. On February 14, 1972, the Secretary o f
the Navy n o t i f i e d p l a i n t i f f and NARF o f h is
decision that p l a i n t i f f had been discriminated
against due to her sex with regard to her applica
tion to be promoted to the pos i t ion o f A i r c ra f t
M e ta lsm ith , WG-10, and that there had been no
d iscr iminat ion against p l a i n t i f f on the grounds o f
her race. The Secretary ordered NARF to grant
p l a i n t i f f appropriate r e l i e f .
- 14a
5. During the period between the f i l i n g o f
the appl icat ion fo r the promotion to the A i r c ra f t
Metal sm ith , WG-10 p o s i t i o n , in March, 1968,
and the d e c i s i o n o f the S e c r e ta ry o f the Navy
in February, 1972, the fo l low ing events occurred
r e l a t i v e to p l a i n t f f ' s employment:
(a ) On October 22, 1970, p l a i n t i f f obtained
Career status in the federa l serv ice ;
(b) From November 1, 1971, to February 25,
1972, p l a i n t i f f was employed in Operations Analy
s is , 500 D iv is ion ; and
(c ) From June 12, 1972, to August 26, 1972,
p l a i n t i f f was employed as an on-station Neighbor
hood Youth Corp Counselor, GS-301-9.
6. On February 18, 1973, p l a i n t i f f was
promoted to the p o s i t i o n o f A i r c r a f t Shee t -
metal Mechanic, WG-10, from her p o s i t i o n as
A i r c ra f t Sheetmetal Mechanic, WG-8.
7. On March 19, 1973, p l a i n t i f f applied for
the p o s i t i o n o f Equal Employment Opportun i ty
Spec ia l is t ("EEQ S p e c i a l i s t " ) , GS 160-9, under
Vacancy Announcement No. 73-21. Four vacancies
for EEO Spec ia l i s t at the GS-9 l e v e l were sought
to be f i l l e d by that announcment. Approximately
fourteen persons applied for those four pos i t ions .
15a
8. The q u a l i f i c a t io n standards for the EEO
Spec ia l i s t pos i t ion , l e ve ls GS-5 through GS-15,
are d e sc r ib ed in the C i v i l S e r v i c e Commission
Handbook X-113 " Q u a l i f i c a t i o n Standards f o r
Pos it ions under the General Schedule" (Exhibit
1015).
9. To qua l i fy as an EEO Spec ia l i s t , GS-9,
an a p p l i c a n t must have four years o f " g en e ra l
experience" and one year o f " spec ia l i zed expe
rience in EEO work."
10. Generalized work experience must demon
s t r a t e such q u a l i t i e s as awareness o f s o c i a l
and economic problems created by discr imination
against minor i t ies and women; an a b i l i t y to meet
and deal e f f e c t i v e l y with persons of both sexes o f
d i f f e r e n t ages, races, and economic and educa
t ional background; an a b i l i t y to wr ite c l ea r ly ;
and an a b i l i t y to c o l l e c t and assemble f a c t s .
Examples o f acceptable general experience include
par t ic ipa t ion in community programs designed to
promote equa l i t y ; counseling persons with problems
concern ing d i s c r im in a t i o n ; p a r t i c i p a t i o n in
programs designed to promote equal opportunity
sponsored by educational, r e l ig ious and soc ia l
serv ice organizat ions; and soc ia l work, personnel
16a -
work, and recreat iona l serv ices for disadvantaged
youth. Such experience can be gained in a v a r i e t y
o f work se t t ings , paid or voluntary, part or fu l l
time.
11. Handbook X-118 also al lows cred i t for
education, whereby an academic year at an in s t i t u
t i o n o f h ig h e r l e a rn in g is e q u i v a l e n t to nine
months o f general experience. Pro rata c red i t is
g i v e n f o r educat ion amounting to l e s s than a
f u l l academic year.
12. "Spec ia l i zed experience" must demon
s t r a t e such th ings as knowledge o f the causes
and e f f e c t s o f d iscr iminatory pract ices against
women and m i n o r i t i e s ; knowledge o f the l e g a l ,
economic, and soc ia l bases for discr im ination; an
a b i l i t y to ana lyze and i d e n t i f y the causes o f
soc ia l and economic problems of the groups to be
served, and to make recommendations for solutions
to such problems; a b i l i t y to reta in composure in
the face of personal c r i t i c i sm and to exercise
mature judgment during c r i s i s s i tuat ions ; and an
a b i l i t y to persuade others to adopt and operate
e f f e c t i v e EEO plans.
17a
13. P l a i n t i f f was furnished with an exper i
ence statement qu es t io n n a i r e to be completed
and returned f o r evaluation of her qu a l i f i ca t ions .
14. P l a i n t i f f ' s expe r i en ce q u es t io n n a i re
showed that she had been in vo lved f o r more
than e i g h t years in a c t i v i t i e s that r e l a t e d
d i r e c t l y to equal employment opportunities for
m in o r i t i e s and women. She a l s o in d ic a t e d the
extent of her educational background and train ing
which rela ted to the EEO pos i t ion . F ina l ly , she
l i s t e d tw en ty - th r ee persons as r e f e r e n c e s who
could v e r i f y the extent and qua l i ty o f her exper i
ence .
15. P l a i n t i f f was n o t i f i e d on Apr i l 9, 1973,
that she had been rated in e l i g i b l e for the GS-9
EEO Spec ia l is t posit ion on the grounds that she
lacked f i v e years of v e r i f i e d experience. Shir ley
Jones, f o rm er ly a NARF Personnel Management
Consu ltant , c r e d i t e d p l a i n t i f f w i th only two
y ea rs , s e v en -a n d -a -h a l f months expe r ien ce , or
three years, one-and-a-half months "at the most."
16. On July 16, 1973, p l a i n t i f f f i l e d a
formal compla int w ith the Navy c la im in g she
was discriminated against on the grounds o f race
- 18a
and sex and a l l e g i n g that the de te rm ina t ion
of i n e l i g i b i l i t y was improper.
17. When p l a i n t i f f f i l e d a grievance with
her employer compla in ing about the r a t i n g o f
" i n e l i g i b l e , " the Naval A i r Station and the C i v i l
S e r v i c e Commission conducted i n v e s t i g a t i o n s
to independently ca lcu la te p l a i n t i f f ' s experience.
Mrs. Gussie Porter , who was asked by Captain Sells
o f the Naval A i r s tat ion to look into the matter,
concluded that p l a i n t i f f could be cred i ted with
only three years, ten-and-a-half months exper i
ence. The C i v i l Service Commission also found
that p l a i n t i f f f a i l e d to meet the f i v e years
requirement.
18. On May 23, 1974, p l a i n t i f f was n o t i f i e d
o f the Navy 's f i n a l d e c i s i o n to uphold the
determination of i n e l i g i b i l i t y .
19. On June 18, 1974, p l a i n t i f f commenced
this act ion No. C-74-1286 WHO.
20. Only one a p p l i c a n t , P h i l l i p M orr is ,
s a t i s f i e d the f u l l X - l 18 s tandards . He was
se lected to f i l l one o f the pos i t ions .
21. P r io r to his se lec t ion , Mr. Morris was
an e lec t ron ics engineer, GS-12, step 5, r esu l t ing
in a salary loss o f approximately $4,000.
19a
22. Handbook X-118 contains the fo l lowing
guidel ine which apparently could have been, but
was not, applied to p l a i n t i f f ' s s i tuat ion: "In
evaluating experience, length is o f less impor
tance than e i ther demonstrated success in pos i
t ions o f a responsible nature, or the breadth and
scope o f the pertinent knowledges, s k i l l s , and
a b i l i t i e s possessed by the applicant and applied
in the performance o f duties o f such p os i t ions . "
23. Handbook X-118 provides another excep
t i o n to the f i v e years expe r ien ce standard:
in -serv ice placement. Applicants who lack the
f i v e years o f e xpe r ien ce (and/or s u b s t i tu te d
e d u c a t i o n ) , but who "have a c t i v e l y promoted
equa l i t y " by par t ic ipa t ing in EEO-type programs,
and who have records indicating a poten t ia l for
success in equal opportunity work, may be l a t e r a l
ly reassigned to EEO Spec ia l is t pos it ions.
24. Mrs. Gussie P o r t e r argued to Captain
Se l ls that the aforementioned provis ion applied
to p l a i n t f f ' s s i tuat ion. Mrs. Porter f e l t that
the qua l i ty o f p l a i n t i f f ' s three years, ten-and-a-
ha l f months experience was so high as to compen
sate f o r her lack o f f i v e years e xp e r ien ce ,
- 20a
and that p l a i n t i f f should there fore be appointed.
Her advice was not taken.
25. Defendants decided to f i l l the remaining
three GS-9 EEO Spec ia l i s t posit ions by using the
in -se rv ice placement prov is ion. Four appl icants,
a l l male, were e l i g i b l e under these c r i t e r i a .
26. Eldridge Carrington, Jose Galvan, and
Serveriano Garcia, J r . , were u l t imate ly se lected .
27. At the time o f his se lec t ion , Mr. Galvin
had only one year, two months experience. His
rat ing record shows the fo l low ing remarks: "some
educ. subst. no other apparent EEO."
28. At the time o f se lec t ion , Mr. Garcia had
one year, three months general cred i t for educa
tion, and 1.6 years c red i t fo r experience.
29. P l a i n t i f f was be t te r qu a l i f i e d for the
pos i t ion than e i ther Messrs. Galvan or Garcia,
since she was credited with three years, ten-and-
a-ha l f months experience. Furthermore, her record
indicates not only that her background had prepar
ed her to assume the duties and r e s p o n s ib i l i t i e s
of an EEO Spec ia l i s t , but also that her experience
was of a high qua l i ty .
30. P l a i n t i f f served as a reading instruc
tor , counselor, and t es te r at St. Francis De Sales
- 21a -
and St. P a t r ick 's Schools, Oakland: chairperson,
Parents' Advisory Committee on Education, Emery
High Sch oo l ; coun se lo r , Community Resources
Committee, Upward Bound Program, Mi l ls Col lege;
employee's counsel or representative in discrimin
a t i o n com p la in ts , Naval A i r Rework F a c i l i t y ,
Alameda; employee, Neighborhood Youth Corps
o f f i c e , Naval A i r S t a t i o n ; cha i rpe rson , Human
Relations Committee, Albany; d i rec to r , Teenagers
S o c ia l Club, St . Ambrose's Church, B erke ley ;
member, Parents' Advisory Group, Albany School
system. She also took several courses at Laney
College and at the U.C. Extension in the area of
human re la t ions and labor-management re la t ions .
31. Defendants ju s t i f y th e i r nonselect ion of
p l a i n t i f f under the in -serv ice placement a l terna
t i v e by arguing that her status at a l l relevant
times was WG-10; a t rans fer from WG-10 to GS-9
would c o n s t i t u t e a promotion, as opposed to a
l a t e ra l t rans fer , and was there fore not permitted.
32. When defendants made the d e c i s i o n to
sw itch from the f u l l X-118 standards to the
i n - s e r v i c e placement c r i t e r i a , they had the
opportunity to reannounce the remaining three EEO
22a -
S pec ia l i s t openings at the GS~7 l e v e l , so as to
increase the pool o f e l i g i b l e appl icants.
33. Had the pos i t ion been reannounced at the
GS-7 l e v e l , p l a i n t i f f would have been e l i g i b l e for
l a t e ra l reassignment under the in -se rv ice p rov i
sions. She was qu a l i f i ed for a EEO S pec ia l i s t ,
GS-7 pos i t ion .
34. Had the pos i t ion been reannounced at the
GS-7 l e v e l , defendants would have been obl igated
under the regulat ions governing reductions in work
force to make p l a i n t i f f an o f f e r , to prevent her
impending separation.
35. Naval A i r Stat ion, Alameda, Instruction
(NASALAMEDAINST. 12000.3), Chapter 11, Reduction
in Force, at page 11-8 states :
"When a Group I or I I employee is reached for
r e l e a s e and cannot be r e t a in e d in another
pos i t ion with in his competit ive l e v e l , he is
en t i t l ed to any ava i lab le pos i t ion fo r which
he is qua l i f i ed in another competit ive l e v e l
which has a representat ive rate equal to or
lower than that of the pos i t ion from which he
is be ing r e l e a s e d . I f two or more such
pos it ions e x i s t , he is en t i t l ed to the one
w i th the h ig h e s t r e p r e s e n t a t i v e r a t e . "
Since p l a i n t i f f was reached for re lease from her
WG-10 Sheet Metal Mechanic pos i t ion and could not
be r e t a in e d in another p o s i t i o n w i th in that
- 23a
competi t ive l e v e l , she would have been en t i t l ed to
the EEO Spec ia l i s t pos i t ion had i t been reannounc
ed at the GS-7 l e v e l .
36. A NARF p u b l i c a t i o n e n t i t l e d "n a r f
alameda," dated May, 1976, states:
"The C i v i l Service Commission and Department
o f the Navy r e g u la t i o n s p ro v ide f o r use
o f e x i s t i n g vacanc ies when RIF occurs .
Accordingly, when RIF's are antic ipated, i t
is NARF1s po l icy to freeze internal promo
t ion actions as wel l as recruitment actions
and make the vacancies availab le for those
employees who qua l i fy and are being adversely
a f fec ted by RIF ." . ,
37. P l a i n t i f f was a h i g h l y v i s i b l e and
ac t ive symbol o f equal opportunity at the NARF/
NAS. She had been the f i r s t female Navy employee
to p reva i l in a discr imination case. She had been
ac t ive throughout her employment as an EEO Repre
sentat ive for other minority and female employees.
38. Defendants' explanation for not rean
nouncing the EEO s l o t s at the GS-7 l e v e l was
that a GS-9 s k i l l l e v e l was needed to get the new
EEO o f f i c e functioning proper ly .
39. However, se lec t ion through in -serv ice
p lacement , by d e f i n i t i o n , in v o l v e s s e l e c t i o n
o f people who do not meet the formal experience
and/or educational requirements for the posit ion
- 24a
and l e v e l i n v o l v e d . In s t ea d , the employer is
permitted to look to persons with " p o t e n t i a l . "
40. P l a i n t i f f ' s " p o t en t ia l " in the area of
EEO was very high; an evaluation o f her education,
experience, personal charac te r i s t i c s , and a b i l i
t i e s , i n d i c a t e s that she had more p o t e n t i a l
fo r success at the EEO S pec ia l i s t pos i t ion than
did severa l of the men ult imate ly chosen for the
job. She also had more EEO experience than any o f
the four men se lected .
41. De fendants ' j u s t i f i c a t i o n f o r not
reannouncing the EEO Spec ia l i s t job at GS-7 is
p r e t e x t . I f de fendants wanted to acqu i r e the
needed s k i l l s f o r t h e i r new EEO o f f i c e , the
lo g ica l course would have been to se lec t p l a i n t i f f
fo r one o f the four spots.
42. The Court f in d s tha t the r e a l reason
defendants chose (1 ) not to in terpret to p la in
t i f f ' s b e n e f i t the Handbook X-118 r e g u la t i o n
quoted in Finding o f Fact 22, (2 ) not to rean
nounce the EEO Spec ia l i s t openings at the GS-7
l e v e l upon invocation of the in -se rv ic e placement
a l t e rna t i ve , and (3) to ignore the NARF po l icy
statement quoted in Finding o f Fact 36, was to
prevent p l a i n t i f f from ge t t ing the pos i t ion , and
- 25a -
thereby to force her to leave the Base.
43. The defendants' actions described above
were the result of d iscriminatory and/or r e t a l i a
tory animus.
B. RIF Case
44. On Apr i l 2, 1973, p l a i n t i f f was n o t i f i e d
that her employment at NARF would be terminated
e f f e c t i v e June 1, 1973, as a result of a reduction
in force ( "R IF " ) .
45. Be fo re the 1973 RIF, there were 145
Sheetmetal Mechanic ( A i r c r a f t ) WG-10 posit ions at
NARF.
46. The RIF abo l ished 108 o f these p o s i -
t ions.
47. P l a i n t i f f requested that she be carried
on Leave Without Pay s ta tus f o r t h i r t y days.
48. With th is th ir ty -day leave, p l a i n t i f f ' s
separation from NARF was e f f e c t i v e July 2, 1973.
49. I f no appropriate job o f f e r can be made
to the p a r t i c u l a r employee, the employee is
n o t i f i e d o f his or her impending separation from
the federa l serv ice .
26a -
50. Employees who are su b je c t to RIF may
r e g i s t e r on three separate p r i o r i t y employment
l i s t s . Those l i s t s are:
(a ) Navy-Reemployment P r i o r i t y L is t (RPL).
The RPL i s the f i r s t l i s t to be cons idered
where vacancies are to be f i l l e d . P l a i n t i f f was
r e g i s t e r e d on the RPL f o r c e r t a in p o s i t i o n s .
(b ) Department o f Defense (DOD) Stopper
L i s t . The p l a i n t i f f was interviewed on May 9,
1973, by Theodore Fernandez, RIF Counselor for
IRD, f o r the purpose o f p l a c in g p l a i n t i f f ' s
name on the DOD Stopper L i s t .
( c ) The C i v i l Service Commission Register of
Displaced Employee Program (DEP), which is estab
l ished pursuant to the provisions o f FPM, 335,
sub-chapter 3-3e. P l a i n t i f f was r eg is te red on the
DEP on June 18, 1973.
51. P l a i n t i f f was r eg is te red on the RPL for
only Sheetmetal Mechanic (A/C) WG-10, Production
Contro l le r GS-8, EEO Spec ia l is t GS-9, and Produc
tion Dispatcher WG-7.
52. P l a i n t i f f r eg is te red under the DEP for
Sheetmetal Mechanic (A/C) WG-8 and 10, Production
Contro l ler GS-8, EEO Spec ia l i s t GS-7 and 9, Crater
and Packer WG-8, and Production Dispatcher WG-7.
27a
53. On Che date p l a i n t i f f was n o t i f i e d that
she was to be RIFed and on the date o f her actual
termination, p l a i n t i f f held the pos i t ion of Sheet
Metal Mechanic, WG 3806-10, with a serv ice compu
tat ion date of July 2, 1962.
54. P l a i n t i f f ' s tenure group c la s s i f i c a t i o n
was IB, nonveteran, career employee.
55. An Out-Placement Committee, was set up
by NARF to help employees adversely a f fec ted by
the RIF to f ind a l ternate employment in e i ther the
public or pr ivate sectors.
56. On May 23, 1973, Curtis Turner f i l e d a
RIF appeal on b eh a l f o f p l a i n t i f f w i th the
San Francisco Regional O f f i c e o f the C i v i l Service
Commission.
57. On August 29, 1973, the Regional O f f ice
af f irmed the act ion of defendant NARF in separat
ing the p l a i n t i f f .
58. On September 14, 1973, Curt is Turner
f i l e d an appeal of the decision o f the Regional
o f f i c e with the Board of Appeals and Review o f the
United States C i v i l Serv ice Commission in Washing
ton, D. C.
28a -
59. On January 28, 1974, the Board o f
Appeals and Review af f irmed the decis ion of the
Regional O f f i c e .
60. On November 1, 1973, the p l a i n t i f f f i l e d
a formal EEO compla in t w i th NAS/NARF a l l e g i n g
d i s c r im in a t i o n on the b as is o f race and sex
respecting the RIF action.
61. On November 16, 1973, p l a i n t i f f was
n o t i f i e d o f the f in a l dec is ion o f the Department
o f the Navy upholding the RIF action against her
and n o t i f y i n g he r , among o th e r th in g s , o f her
r igh t to bring th is action.
62. On December 14, 1973, p l a i n t i f f com
menced th is lawsuit, No. C-73-2241 WHO.
63. P l a i n t i f f ' s name was withdrawn from the
DOD l i s t , because p l a i n t i f f informed defendants
that she did not want to be r eg is te red on that
l i s t .
64. At no time relevant to th is lawsuit did
NARF h i r e any employee from the DOD Stopper
L i s t .
65. The RPL applies only when a h i r ing is
done by NARF from o u ts id e the f a c i l i t y . RPL
l im itat ions do not prevent an agency from f i l l i n g
29a
a vacant p o s i t i o n by promotion o f a q u a l i f i e d
employee within the agency.
66. None o f the persons who were hired by
NARF in to the p o s i t i o n s f o r which p l a i n t i f f
was r eg is te red on the RPL came from outside the
f a c i l i t y .
67. Through the e f f o r t s o f d e fen da n ts '
Out-Placement Committee, p l a i n t i f f was informed o f
job opportunit ies . However, p l a i n t i f f f a i l e d to
pursue any o f these opportunities.
68. Any placement o f NARF employees which
may have been made in derogation of p l a i n t i f f ' s
p re -R IF and/or pos t -R IF r i g h t s to continued
employment resulted from defendants' administra
t i v e in e f f i c i e n cy , from defendants' ju s t i f i a b l e
impress ion that p l a i n t i f f had no i n t e r e s t in
the par t icu la r pos it ions then ava i lab le , or from a
combination t h e r e o f . Mistaken placements, i f
any occurred, were not the result o f discrimina
tory or r e t a l i a t o r y animus.
CONCLUSIONS OF LAW
1. The court has j u r i s d i c t i o n over the.
subject matter of this action pursuant to Section
717(c) o f the Equal Employment Opportunity Act of
30a
1972, 42 U.S.C. § 2000e-16(c), amending T i t l e V I I
o f the C i v i l Rights Act of 1964, 42 U.S.C. § 2000e
et seq.
2. P l a i n t i f f exhausted a l l administrative
remedies p r io r to bringing these actions.
3. P l a i n t i f f a c t i v e l y opposed p r a c t i c e s
made unlawful by T i t l e V I I , within the meaning
o f Section 704(a), by her f i l i n g of formal and
informal complaints o f d iscr iminat ion in 1971,
1972, and 1973, and her a c t i v i t i e s as an employee
r e p r e s e n t a t i v e in matters o f equal employment
opportunity.
4. P l a i n t i f f has demonstrated by a prepon
derance of the evidence that she was rated i n e l i
g ib le for the pos i t ion of EEO Spec ia l i s t , GS-9, in
r e t a l i a t i o n for her opposit ion to unlawful employ
ment pract ices and/or fo r having f i l e d a complaint
o f unlawful discr iminat ion against the agency.
5. P l a i n t i f f has demonstrated by a prepon
derance of the evidence that she was rated i n e l i
g ib le for the pos i t ion of EEO S p ec ia l i s t , GS-9,
on the grounds o f her sex.
6. Defendant has f a i l e d to a r t icu la te any
leg i t imate , nondiscriminatory business j u s t i f i c a
3 1 a -
t i o n f o r Che above -desc r ibed a c t io n s aga ins t
p l a i n t i f f .
7. P l a i n t i f f has f a i l e d to demonstrate by a
preponderance o f the evidence that she was RIFed
in r e t a l i a t i o n for having opposed a lleged discrim
inatory employment pract ices and/or having f i l e d a
complaint against the agency.
8. P l a i n t i f f has f a i l e d to demonstrate by a
preponderance o f the evidence that she was RIFed
on the grounds o f her sex ( female) or her race
(B la ck ) .
Counsel fo r p l a i n t i f f shall submit a memoran
dum suggesting appropriate r e l i e f , to be accom
panied by a memorandum o f points and author i t ies ,
by July 14, 1978. Counsel fo r defendants w i l l
submit a memorandum in opposition, i f any there
be, by July 18, 1978. A hearing on r e l i e f w i l l be
he ld Wednesday, July 19, 1978, at 5:00 p.m.
Dated: July 11, 1978.
Will iam H. Orrick
United States D is t r ic t Judge
32a
ORDER OF THE DISTRICT COURT
OCT. 31, 1978
No. C-74-1286 WHO
No. C-73-2241 WHO
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
ETTA B. SAUNDERS,
P l a in t i f f - A p p e l l e e ,
v.
WILLIAM GRAHAM CLAYTOR, JR.,
Secretary o f the Navy, et a l . ,
Defendants-Appellant s .
P l a i n t i f f , having demonstrated by a prepon
derance o f the evidence that she was qu a l i f i e d for
the posit ion of EEO Spec ia l is t GS-7 but that she
was rated i n e l i g i b l e on the grounds of her sex,
and defendant hav ing f a i l e d to a r t i c u l a t e any
leg i t imate , nondiscriminatory business j u s t i f i c a
t ion for such action, and good cause appearing,
IT IS HEREBY ORDERED that:
- 33a -
1. Defendant s h a l l f o r th w i th r e i n s t a t e
p l a i n t i f f to the posit ion of EEO Spec ia l is t GS-11,
step 4. 42 U.S.C. § 2000e-5(g); Richerson v.
Jones, 551 F.2d 918 (3d Cir. 1977). P l a i n t i f f ' s
s e n i o r i t y s h a l l date back to A p r i l 30, 1973,
being the time she would have been placed in the
pos i t ion absent discr imination. P o l s t o r f f v.
F le t cher , 17 FEP Cases 123, 129 (N.D. Ala. 1978).
The Court f inds that p l a i n t i f f would have attained
the pos i t ion o f EEO Spec ia l is t GS-11 but f o r the
de fen da n ts ' unlawful employment p r a c t i c e s .
The Court further f inds that the p l a i n t i f f has
demonstrated that the advancement rate she postu
lates is f a i r l y typ ica l in the EEO o f f i c e — having
documented two addit ional instances in which male
EEO spec ia l i s t s advanced at such a rate . The Navy
has not borne i t s burden of showing, by a prepon
derance, that even absent discr imination pla in
t i f f ' s qua l i f i ca t ions were such that she would
not have been promoted to the GS-11 p o s i t i o n .
2. Defendant shall forthwith award back pay
to p l a i n t i f f computed as fo l lows:
( a ) Assume entry in t o the EEO S p e c i a l i s t
p o s i t i o n at the GS-7 l e v e l , promotion to GS-9
A
34a
a f t e r one year, promotion to GS-11 a f t e r a second
y ea r , and a p p ro p r ia t e s tep in c reases to da te ,
deducting from the to ta l back pay the amount o f
severance pay. Pettway v. American Cast Iron Pipe
Co. , 494 F .2d 211 (5th C i r . 1974). P l a i n t i f f
should be credited with the amount o f sick leave
and annual leave which she had accumulated at the
time of her termination in 1973. This resu lt ,
which c o n s t i t u t e s an attempt to implement the
"make whole" remedy o f the Act, makes the quite
reasonable assumption that p l a i n t i f f , had she been
employed at NARF during the period o f her separa
tion, would have experienced her previous rate
of i l ln ess and avai led h e rse l f o f annual leave as
i t became due her.
(b ) Th ere w i l l be no award o f i n t e r e s t .
Richerson v. Jones, 551 F.2d 918, 925 (3d Cir.
1977).
(c ) An in f l a t io n fac tor , calculated accord
ing to the United S ta tes Department o f Labor
average c o s t - o f - l i v i n g data f o r the years in
question, shal l be included. This is necessary to
assure compensation in "constant d o l l a r s , " because
ca lculat ion o f p l a i n t i f f ' s back pay award w i l l be
based upon f e d e r a l s a la r y schedules in e f f e c t
- 35a -
dur ing p r i o r y ea rs . See Lockheed M in o r i t y
S o l i d a r i t y Coal i t ion v. Lockheed Missi les & Space
Co. , 406 F. Supp. 828, 834 (N . D. Cal. 1976).
(d ) There w i l l be no award o f los t overtime
pay, because such damages are too speculative.
(e ) Unemployment compensation received by
p l a i n t i f f w i l l be deducted from the to ta l back pay
award. The Court declines to apply the c o l l a t e r a l
source rule here; a back pay award is not punit ive
in nature, but is compensatory, intended merely to
make the p l a i n t i f f whole from the e f f e c t s o f
unlawful discrimination. See EEOC v. Enterprise
Assoc ia t ion , 542 F.2d 579, 591-92 (2d Cir. 1976).
( f ) The award s h a l l not be reduced f o r
amounts "earnable with reasonable d i l i g e n c e . " 42
U.S.C. § 2000e-5(g). The Court finds that p la in
t i f f , although she was unable to secure a l terna
t i v e employment, did exerc ise reasonable d i l igence
in the pursuit thereof . The record shows that she
was reg is tered on several employment e l i g i b i l i t y
l i s t s , that she sought work as a sheetmeta l
mechanic at several Navy ins ta l la t ions and with at
least one pr ivate employer in the San Francisco
Bay area, and that she applied for employment at a
loca l EEOC o f f i c e . The Court f inds these e f f o r t s
- 36a -
c l ea r ly s u f f i c i en t to meet the m it iga t ion require
ments imposed by the Act, See Inda v. United Air
L ines , In c , , 405 F, Supp. 426 (N.D. Cal. 1975),
a f f ' d , 16 FEP Cases 251 (9th Cir. 1977).
3. The record is hereby augmented by
admitting into evidence P l a i n t i f f ' s Exhibit 64,
submitted September 8, 1978.
4. P l a i n t i f f w i l l p repare a judgment in
form approved by the defendant to be lodged with
the Court on or before November 15, 1978.
Dated: October 31, 1978.
Will iam H. Orrick
United States D is t r i c t Judge
37a
ORDER OF THE DISTRICT COURT
Dec. 12, 1978
No. C-73-2241 WHO
No. C-74-1286 WHO
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
ETTA B. SAUNDERS,
P l a i n t i f f ,
v. _ .
WILLIAM GRAHAM CLAYTOR, JR.,
Secretary o f the Navy, et a l , ,
Defendants.
ORDER
The Court, hav ing cons idered p l a i n t i f f ' s
proposed form o f judgment, p l a i n t i f f ' s proposed
amendments to the Court 's Order o f October 31,
1978, and d e fen da n ts ' o b j e c t i o n s th e r e t o , and
good cause appearing,
IT IS HEREBY ORDERED that:
- 38a -
1. The Order of th is Court entered October
31, 1978, s h a l l be amended as f o l l o w s : On
page 3, fo l low ing paragraph 2 ( f ) , there shall be
inserted the fo l low ing new paragraph:
" ( g ) P l a i n t i f f may r e i n s t a t e her
r e t i r em en t b e n e f i t s f o r part or a l l
o f the period pr io r to January 2, 1978,
by contr ibut ing appropriate amounts, not
to include any contr ibut ion by p l a i n t i f f
as in te res t , to the retirement system
f o r each p e r i o d o f employment f o r
which she has no c o n t r ib u t i o n to her
c r ed i t , and for which she wishes to have
retirement c r e d i t . "
2. There shall be no award o f in junctive
r e l i e f . P l a i n t i f f ' s in terest in remaining f ree
from future acts o f d iscr iminat ion is adequately
p ro t e c t e d by the e x t e n s i v e i n ju n c t i v e r e l i e f
entered pursuant to the Consent Decree in Saun
ders v. Naval A ir Rework F a c i l i t y , No. C-74-0520
WHO.
3. P l a i n t i f f shall prepare a proposed form
o f judgment which shall conform to the terms o f
the October 31, 1978, Order, as amended herein.
Adjustment o f sick leave and annual leave shal l be
as stated in the October 31 Order, and there shall
be no cash award option. Retroact ive s en io r i t y
- 39a -
shall correspond Co the job progression ladders
set forth in p l a i n t i f f ' s Exhibit 64.
4. The C o u r t • f inds p l a i n t i f f to be a
p reva i l in g party within the terms of T i t l e VI I ,
42 U.S.C. § 2000e-5(k), and shall award a reason
able at torney 's fee. P l a i n t i f f shall submit a
c e r t i f i c a t e o f counsel c on ta in in g s u f f i c i e n t
information to enable the Court to consider an
a p p ro p r ia t e award in l i g h t o f the f a c t o r s set
for th in Johnson v, Georgia Highway Express, Inc . ,
488 F .2d 714, 717-19 (5th Cir. 1974).
P l a i n t i f f shall f i l e and serve upon defen
dants the required materials no la te r than Decem
ber 22, 1978, to which defendants shall respond no
la te r than December 29, 1978, whereupon the matter
shal l be deemed submitted.
Dated: December 12, 1978.
Will iam H. Orrick
United States D is t r i c t Judge
- 40a -
ORDER OF THE DISTRICT COURT
Jan. 25, 1979
No. C-73-2241 WHO
No. C-74-1286 WHO
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
ETTA B. SAUNDERS,
P l a i n t i f f ,
v.
WILLIAM GRAHAM CLAYTOR, JR.,
Secretary o f the Navy, et a l . ,
Defendants.
JUDGMENT
This action, having been t r i ed before this
Court, s i t t i n g without a jury, on March 27 to 29,
1978, and this Court having entered i t s Findings
of Fact and Conclusions o f Law on July 11, 1978,
and i t s Order as to appropriate r e l i e f on October
31, 1978,
- 41a -
IT IS HEREBY ORDERED, ADJUDGED and DECREED:
1. Defendants shal l , not la te r than Febru
ary 5, 1979, re instate p l a i n t i f f to the posit ion
of EEO Spec ia l i s t , GS-11, Step 4, with sen ior i ty
dating back to A p r i l 30, 1973. Such re t roac t ive
s en io r i ty shal l correspond to the job progression
ladders se t f o r th in p l a i n t i f f ' s E xh ib i t 64.
2. Defendants s h a l l award back pay to
p l a i n t i f f , computed pursuant to the Federa l
GS pay schedule, with cost of l i v in g increases,
deduct ing there from the amount o f p l a i n t i f f ' s
severance pay ($ 4 ,6 1 9 .11 ) , and p l a i n t i f f ' s
compensation bene f i ts ($1,620.00). The amount o f
p l a i n t i f f ' s back pay from date o f t e rm ina t ion
through February 5, 1979, is $92,955.92; the
addit ional amount due as a cost of l i v in g i n f l a
tion fac tor through July, 1978, is $16,231.72.
On or before the 61st day fo l low ing entry o f th-is
Judgment, de fendants s h a l l pay to p l a i n t i f f
the adjusted back-pay award, as indicated above,
in the amount o f $102,948.53. In the event o f an
appeal, the amount paid as an in f l a t io n fac tor
shall be recomputed according to the most current
42a -
Department o f Labor cost o f l i v in g index f igure
ava i lab le at the time o f payment.
3. The defendants shall c red i t p l a i n t i f f
w ith any s ick leave and annual leave which
p l a i n t i f f had accrued at the time o f her separa
t ion from the Federal Service on Apr i l 30, 1973.
This r e s u l t , which c o n s t i t u t e s an attempt to
implement the "make who le " remedy o f the Act ,
makes the quite reasonable assumption that p la in
t i f f , had she been employed at NARF during the
period of her separation, would have experienced
her previous rate of i l ln e s s and avai led h e rse l f
o f annual leave as i t became due her.
4. P l a i n t i f f may re ins ta te her retirement
bene f i ts for part of a l l o f the period p r io r to
February 5, 1979, by c o n t r ib u t in g a p p ro p r ia t e
amounts, not to inc lude any c o n t r ib u t i o n by
p l a i n t i f f as in te res t , to the retirement system
for each period of employment for which she has
no contribution to her c red i t , and for which she
wishes to have retirement c red i t .
5. The Court f inds p l a i n t i f f to be a
p reva i l ing party within the terms of T i t l e V I I ,
42 U.S.C. § 2000e-5(k), and shal l award reasonable
at torneys ' fees and costs.
- 43a
Dated: January 25, 1979.
Will iam H. Orrick
United States D is t r i c t Judge
- 44a -
ORDER OF THE DISTRICT COURT
Jan. 25, 1979,
on Attorneys ' Fees
No. C-73-2241 WHO
No. C-74-1286 WHO
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
ETTA B. SAUNDERS,
P l a i n t i f f ,
v.
WILLIAM GRAHAM. CLAYTOR, JR. ,
Secretary o f the Navy, et a l , ,
Defendants.
ORDER
The Court having reviewed the ent i re record
o f proceedings in this case, including the cer
t i f i c a t e s , a f f i d a v i t s and memoranda submitted by
the parties pursuant to p l a i n t i f f ' s applicat ion
f o r an award o f a t t o r n e y s ' f e e s , and having
- 45a -
considered th is material in l i gh t o f the c r i t e r i a
set forth in Johnson v. Georgia Highway Express,
Inc . , 488 F . 2d 714 (5th Cir. 1974) ( See, Kerr v .
Screen Extras Guild, Inc . , 526 F.2d 67 (9th Cir.
1975 ) , c e r t . den. , 425 U.S. 951 ( 1976), - ' ' t h e
Court f inds the facts to be as fol lows:
1. In i t s Order o f December 13, 1978, the
Court found p l a i n t i f f to be a p reva i l ing party
within the terms o f T i t l e V I I , 42 U.S.C. § 2000e-
5 (k ) , and thereby en t i t l ed to an award o f reason
able attorneys ' fees . Counsel have since complied
1. The C our t 's Order o f December 13, 1978,
d irected counsel to submit material necessary for
consideration o f this issue under the c r i t e r i a
in Johnson v. Georgia Highway Express, Inc . , 488
F.2d 714 (5th Cir. 1974). Defendants now suggest
that the recent decision in Copeland v. Marshall ,
No. 77-1351 (D.C. Cir. Oct. 30, 1978), should in
stead guide the C our t 's d i s p o s i t i o n o f th is
matter . However, the " c o s t - p lu s " formula of
Copeland, in te res t ing though i t may be, has not
been approved by th i s C i r c u i t . Furthermore,
defendants argue that because they cannot at this
time take a pos i t ion with respect to Copeland, the
Court should s tay any c o n s id e r a t i o n o f f e e s .
Such a result would be grossly unfair to counsel
fo r p l a i n t i f f , who have pa t ien t ly l i t i g a t e d this
matter since 1973.
- 46a -
with the Court 's instruct ion to submit c e r t i f i
cates containing s u f f i c i e n t information from which
a reasonable award can be determined.
2. The issues in th is employment d iscr im i
na t ion a c t i o n , al though not t r u l y n o v e l , were
indeed complex, both l e g a l l y and fac tua l ly . The
p l e th o ra o f f e d e r a l r e g u la t i o n s in v o l v e d , and
the ir various impacts upon p l a i n t i f f and other
s im i la r ly -s i tua ted employees, rendered the case
e x c e e d in g l y d i f f i c u l t . The d i f f e r i n g c ircum
stances surrounding the employment o f p l a i n t i f f
and other Navy employees added further complexity.
F ina l ly , the several months necessary to enable
counsel and the Court to fa sh ion app rop r ia t e
r e l i e f has made apparent the d i f f i c u l t y in that
area o f the matter as we l l .
3. Counse l ' s e f f o r t s in th i s l i t i g a t i o n
produced an extremely b e n e f i c ia l result fo r the
p l a i n t i f f . Mrs. Saunders obtained reinstatement,
an award of back pay, and the va r i e t y o f bene f i ts
appurtenant thereto . In addition, her success in
th i s a c t io n serves to v i n d i c a t e the important
national goals and p o l i c i e s embodied in T i t l e V I I .
S ee , Johnson v. Georg ia Highway Express, Inc. ,
supra, 488 F.2d at 716. In this regard, the Court
- 47a -
f inds i t i r re levant that p l a i n t i f f did not "pre
v a i l " on each issue tendered in the case. The
Court is not required to scrut in ize every element
o f p l a i n t i f f ' s l i t i g a t i o n strategy ; there fore ,
unless claims are " c l e a r l y m er i t l e s s , " work per
formed in connec t ion therew ith may be compen
sated d e sp i t e the r e s u l t . S tan ford D a i l y v .
Zu rch er , 64 F.R.D. 680, 684 (N.D. Cal. 1974),
a f f ' d 550 F.2d 464 (9th Cir. 1977), rev 'd on other
grounds, 46 U.S.L.W. 4545 (1978); Richardson v .
C i v i l Service Commission, 17 FEP Cases 157, 158
(S.D. N.Y. 1978).
4. The r i s k undertaken by counsel in
prosecuting th is action was substantial. Since
1973, counsel f o r the p l a i n t i f f have devoted
considerable e f f o r t s to this l i t i g a t i o n with no
assurance of ult imate success and without any fee
commitment from the c l i en t . The Court's in s is
tence upon f ixed t r i a l dates— some o f which were
continued due to p r i o r i t y criminal matters— pre
c luded counsel from acc ep t in g t r i a l - r e l a t e d
employment in v o l v i n g c o n f l i c t i n g appearances.
5. The l i t i g a t i o n was prosecuted by able,
sk i l l ed counsel whose representaion was o f the
highest qua l i ty . The Court need not look beyond
- 48a -
the record of th is case to appreciate the a b i l i t y
o f a l l counsel involved. Mr. Moore's long expe
r i en c e in employment d i s c r im in a t i o n matters
was r e f l e c ted not only in his pleadings, memoranda
and court appearances, but also in his s k i l l f u l
handling o f negotiations and case management. He
was g rea t ly benef i ted by the assistance of his
assoc iate , Ms. S e v i l l e , who, though less experi
enced, is an able and competent attorney.
6. In l i g h t o f the complexity o f the case,
i t s duration, and the result achieved, the to ta l
hours claimed to have been spent on the l i t i g a t i o n
appear to the Court to be reasonable. The a f f i
davits o f counsel set forth in d e ta i l the various
a c t i v i t i e s involved and the time at t r ibutab le to
each. Mr. Moore claims a to ta l of 457 hours, Ms.
S e v i l l e 445 hours, and Ms. Viveros, a paralega l
who assisted in the preparation of the case, 120
hours. The Court f in d s l i t t l e d u p l i c a t i o n in
the e f f o r t s expended, and no attempt to in f l a t e
these to ta ls beyond the actual time spent.
7. The Court f in d s the hour ly ra t e s r e
quested , al though not c om p le t e ly u n r e a l i s t i c ,
somewhat higher than appropriate for some of the
a c t i v i t i e s in v o l v e d . See Richardson v. C i v i l
- 49a
S e rv i c e Commission, supra ; W i l l iam s v. Saxbe,
17 FEP Cases 1657, 1661 (D.D.C. 1976). Mr.
Moore seeks an hour ly r a t e o f $100, f o r a l l
. . . 2 /
a c t l v i t i e s ,— even though much o f his time neces
sa r i l y involved review o f pleadings, memoranda and
other documents prepared by others. Ms. S e v i l l e ,
who has only recent ly completed her th ird year o f
law pract ice , seeks compensation at the rate o f
$75 per hour. The time spent by Ms. Viveros, a
paralegal assis tant , has been computed by counsel
at $30 per hour.
Based upon a l l o f the f in d in g s set f o r th
above, the Court concludes a reasonable award of
attorneys ' fees for the serv ices of Mr. Moore and
his associates to be $65,000. In addition, costs
o f $3,000, pursuant to counsel 's a f f i d a v i t , shal l
be al lowed.
The Court has also examined the request of
Mr. John Erickson for attorney 's fees in connec
tion with his par t ic ipa t ion in these proceedings.
In l i g h t o f the f a c t o r s d esc r ib ed above, and
2J Defendants do not object to compensation at a
r a t e o f $100 per hour f o r Mr. Moore 's t r i a l
advocacy, but suggest that a lower f igure is more
appropriate for other a c t i v i t i e s .
- 50a -
par t icu la r ly the court 's awareness o f the high
qua l i ty o f Mr. Erickson's work, h is request for
$675 is a reasonable one. In addition, costs of
$340, contributed by the NAACP Defense and Educa
tion Fund, Inc . , sha l l be allowed.
IT IS HEREBY ORDERED that defendants shal l
f o r th w i th reimburse p l a i n t i f f f o r reasonab le
attorneys ' fees in accordance with this Order.
Dated: January 25, 1979.
Will iam H. Orrick
United States D is t r i c t Judge
51a
ORDER OF THE DISTRICT COURT,
March 16, 1979
No. C-73-2241 WHO
No. C-74-1286 WHO
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
ETTA B. SAUNDERS,
P l a i n t i f f ,
v.
WILLIAM GRAHAM CLAYTOR, JR.,
Secretary o f the Navy, et a l . ,
Defendants.
ORDER
The above and f o r e g o in g c i v i l a c t i o n s ,
this date, coining on for hearing on defendants'
motion fo r new t r i a l , pursuant to Rule 59, FRCP,
and to amend f indings, pursuant to Rule 52(b),
FRCP, the parties appearing through their respec
- 52a
t i v e counsel o f r e c o rd , b r i e f s and arguments
having been considered, and the matter therea f te r
duly submitted, the premises considered, IT IS
HEREBY ORDERED, ADJUDGED and DECREED,
That, defendants' motion fo r new t r i a l on a l l
grounds be and is hereby denied; and
That defendants ' motion to amend f indings on
a l l grounds be and is hereby denied.
Dated: March 16, 1979.
Will iam H. Orrick Jr.
USDJ
-53a-
MEKORAIJDUM FOR UIIITED STATES ATTORNEYS
: ai;d ageucy geherae ccuusels
i
' ■ l i t l e VII L i t i g a t i o n
In 1972, as a d d i t i o n a l evidence o £ our Kacion 's d“ reT' -
minacion Co guarancee equal r ights Co a l l c i t i z e n s , Congress
amended T i d e VII o f the C i v i l Rights Act o f 1964. to orov ide
Federal employees and appl icants f o r Federal amplcvmcnc with
j u d i c i a l l y e n fo r ce a b le equal employment r i g h t s . ' The Department
o f ^ J u s t i c e , or course , has an important ro le in the a f f i r m a t iv e
enforcement or r ights^under the Act, in boch the pr ivaca and
p u o l i c s e c t o r s . To e f t e c t i v e l y ' d i s c h a r g e chose rssnor.sib i l i t i e s
we must ensure chat the Department o f -Justice conducts i t s
Representat ional func t ions as defense attorneys f o r agencies
“ n suit^ under the Act in a way that w i l l be su poor t i v e o f and
c o n s i s t e n t with che Department's broader o b l i g a t i o n s to
entorca equal oppor tu nity Laws. This memorandum is issued
as part o r what w i l l be a cont inu ing e f f o r t by the Denart-ie"r
to cnis and. . " “
Congress, amending T i t l e VII , has con ferred uoor. Federal
employees and app l i ca nts the same substant ive r i g h t to be free
rrom d is c r im in a t io n on che bas is o f race , c o l o r , sex; r a l i s i o n
and nac iona l o r i g i n , and che same procedural r i gh ts co Jud ic ia l
enforcement as i t has con fe rr ed uocn amoloyees and a o o l i c a n rs
in pr ivaca industry and in scace and l o c a l governments'
Morton Mancari , 417 U.S. 535 (1974) ; Chandler v. Roudabush
4lo U.S. 8 4 0 ( 1 7 7 6 ) . And, as a matter or p o l i c y , che Federal '
Government should be w i l l i n g co assume f o r i t s own agencies no
l e s s e r o b l i g a t i o n s with re spect co equal employment opporcu n it ie :
tnan chose i t seeks to impose upon or ivace and scace and l o c a l
governmenc employers.
In furtherance or this p o l i c y , the Department, whenever
p o s s i o l e , w i l l taka the same p o s i t i o n in incarprat in g T i t l e VII
in defense o f Federal employee cases as i c has taken and w i l l
>-*ike in p r ivat e or s ca ce and l o c a l government amolovee cases.
For example, where Federal employees and a pp l i cants 'm eet the
-54a-
- 2 -
c r i t e r i a o f Rule 23 o f the Federal Rules o f C i v i l Procedure,
they are a ls o e n t i t l e d co che sama c lass r igh ts as are
p r i v a t e s e c c o r employees. Albemarle Paper Co. v. Hoodv,
h Z2 U . S . 405 , 41« (1973 ) . rurtner , cne Deoarcmenc or
J u s t i c e has acquiesced in che recant rul ings o f che ■
r i f t h and Sixth C i r c u i t Courts o f Appeals chat i t i s
unnecessary f o r unnamed c la ss members co exhaust t h e i r
adm in is tr a t i ve remedies as a p r e r e q u i s i t e to c l ass
membership. Eastland v^ TV A, 553 F.2d 364 (5th Cir . 1977) ;
Wil liams v\_ TV A , F ■ 2d (6 th Cir . 1977). Consequently,
we w i l l no longer maintain chat each c l ass member in a
T i t l e VII s u i t must have exhausted his or her a dm in is t ra t ive
remedy.
In a s im i la r vein , the Department w i l l not urge
arguments uhat r e ly upon tnc unique r o l e o f the Federal
Government. For example, the Department re cogn izes that
the same kinds o f r e l i e f should be a v a i la b le against the
r e d e r a l Government as courts have found appropriate in
p r iv a t e s e c t o r ca ses , inc lu d in g im pos it ion o f a f f i r m a t iv e
a c t i o n plans , back pay and a t t o r n e y ' s f ees . Se^ Coo=»land
Y - U-Sery ■ 13 SPQ 111,434 (D.D.C. 1976); Dav v H a thews",----
530 F.2d 1083 (D.C. Cir . 19 76) ; Sp erl ing v. Unicea Peaces,
515 F . 2d 465 (3d Cir . 1975). Thus, whi le che Department
might oppose p a r t i c u l a r remedies in a given case , i t w i l l
not urge that d i f f e r e n t standards be appl i ed in cases against
une re dara i Government chan ara app l ied in ocher cases .
The Department, in o ther r e s p e c t s , w i l l a ls o attempt
to promote the, underly ing purpose o f T i t l e VII. For example,
the 13 72 amendments co T i t l e VXi do not g ive the Government
t i l e a c i v i l a c t i o n cha l le nging an agency f in d in g
o t d i s c r im in a t io n . A cc ord in g ly , co avoid any appearance on
the Government's part o f u n fa i r l y hindering T i t l e VII law
s u i t s , the Government w i l l not attempt co co n te s t a f i n a l
agency or C i v i l S er vi ce Commission f in d in g o f d i s c r im in a t io n
by seeking a t r i a l de_ novo in chose cases where an employee
who has been s u c c e s s f u l in proving his or her c la im b e fo r e
e i t h e r che agency or che Commission f i l e s a c i v i l a c t i o n
seeking only to expand upon the remedy proposed by such
f i n a l d e c i s i o n .
-55a-
- 3
The p o l i c y sec f o r th above does not r e f l e c t , and should
noc be^ in te rpre te d as r e f l e c t i n g , any .unwill ingness on the
part o f the Department to v ig orous ly defend, on the mer its ,
claims o f d i s c r im in a t io n aga inst Federal agencies where
appropriat e . I t r e f l e c t s only a concern that enforcement o f
che equal oppor tun ity laws as to a l l employees be uniform
and co n s i s t e n t .
In add i t i o n to che areas d is cussed above, Che Department
o f J u s t i c e is now undertaking a review o f the co n s i s te n cy o f
ocher l e g a l p o s i t i o n s advanced by the C i v i l D ivi s i on in
defending T i t l e VII cases with chose advocaced by the C i v i l
Rights D iv i s i o n in prosecut ing T i t l e VII cases. The o b j e c t i v e o f
this review is to ensure chac, i n s o f a r as p o s s i b l e , they w i l l
be c o n s i s t e n t , i r r e s p e c t i v e o f che Department's roLa as e i t h e r
p l a i n t i f f or defendant under T i t l e VII. As a part o f this
review, " the Equal Employment Opportunity Cases” s e c t i o n o f
the C i v i l D iv i s i on P rac t i ce ManuaL ( § 3 - 3 7 ) , which concains
che Department's p o s i t i o n on che defense o f T i t l e VII acc ions
brought againsc che Federal Government, is being rev ised .
When this r e v i s i o n is completed, the new s e c t i o n o f the C i v i l
D iv i s i on P r a c t i c e Manual w i l l ' b e d i s t r i b u t e d to a i l
United States Attorneys ' O f f i c e s and w i l l rep lace the present
s e c t i o n . c,ach o f f i c e should re ly on chc rev ised s e c t i o n o f
Che Manual f o r guidance on l e g a l arguments to be made in T i t l e V
a c t i o n s . In order to ensure con s i s te n c y , any l e g a l arguments
which are not created in che Manual should be r e f e r r e d to the
C i v i l D iv i s i o n f o r review p r i o r to t h e i r being advocaced to
che cour t .
This p o l i c y statement has been achieved through the
co operat i on o f A ss i s t an t Accomay General 3arbara Babcock
o f che C i v i l D iv i s i o n who is r e sp on s ib le f or the defense o f
these Federal employee cases , ana Ass i s t an t Attorney General
Drew Days o f che C i v i l Rights D iv i s i on who is my p r i n c i p a l
adviser on c i v i l r ighes matters. They and chair D ivi s i ons
w i l l cont inue to work c l o s e l y together to assure that this
p o l i c y is a f f e c t i v e l y implemented.
. GRIFFIN IT "BELL
August 31, 1977
DOJ.I777-OT
MEilEN MESS INC — N. Y, C 219