Library of Congress v. Shaw Brief in Opposition to the Petition for a Writ of Certiorari

    No. 85-54

I n  t h e

&uprrmr (tart of %  Inttrft Stairs
O ctober  T e r m , 1985

L ib r a r y  oe C o ngress , et at.,

v.

T o m m y  S h a w

Petitioners,

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF IN OPPOSITION TO THE 
PETITION FOR A WRIT OF CERTIORARI

J u l iu s  L eV o n n e  C h a m b e r s  
C h a r l e s  S t e p h e n  R a l st o n  

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



QUESTION PRESENTED

Whether 717 of the Equal Employment 

Opportunity Act of 1972, 42 U.S.C. 
S 2000e-16, which incorporates 42 U.S.C. 
§ 2000e-5(k), constitutes a complete 
waiver of sovereign immunity so that the 
relief obtainable, including the amount of 
attorneys fees, against a federal agency 
in a Title VII action is the same as that 
obtainable against all other employers.

i



TABLE OF CONTENTS

TABLE OF AUTHORITIES ..............  iii
STATUTE INVOLVED ................ . . 1
STATEMENT ..........................  2
REASONS FOR DENYING THE WRIT ...... 6

SUMMARY ......................   6
DISCUSSION ..................    8
1 . Background .........   8
2. Section 717 is a 

Complete Waiver of
Sovereign Immunity .....  10

3. The Decision Below 
Does Not Conflict 
With Prior Decisions
of This Court .........   14

4. There is No Conflict
Between the Circuits .... 24

CONCLUSION .........................  25

Page

- ii -



TABLE OF AUTHORITIES
Case

Albrecht v. U.S. 329 U.S. 599 
( 1947) ............... ......

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

Brown v. General Services Admi­
nistration, 425 U.S. 820 
( 1976) .... ........ .

Chandler v. Roudebush, 425 U.S. 
860 (1976) .................

Commonwealth of Puerto Rico v. 
Heckler, 745 F.2d 709 (D.C. 
Cir. 1984) .................

Copeland v. Marshall, 641 F.2d 
880 (D.C. Cir. 1980) ......

Eastland v. T.V.A., 553 F.2d 
364 (5th Cir. 1977) ........

Franks v. Bowman Transporta­
tion Co., 424 U.S. 747 
( 1976) .......................

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

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

16

20

6,1 1 , 1 2

6,9,11

3

2,7

9

12

7

Page

7

iii



Case Page
Gnotta v . United States, 415

F o 2d 1271 (8th Cir. 1969) ...... 1 1

Institutionalized Juveniles v.
Secretary of Public Welfare,
758 F .2d 897 (3rd Cir. 1985) ... 7

Johnson v. University College 
of the University of Alabama,
706 F.2d 1205 (11th Cir.
1983) .......................... 7

Jorstad v. IDS Realty Trust,
643 F .2d 1305 (8th Cir.
1981 ) .......................... 7

Kyles v. Secretary of Agricul­
ture, 604 F. Supp. 426
(D.D.C. 1985) ...................  4

National Ass'n of Concerned Vets 
v. Sec. of Defense, 675 F.2d 
1319 (D.C. Cir. 1982) .......... 3

Parker v. Lewis, 670 F .2d 249
(D.C. Cir. 1982) ............... 3

Ramos v. Lamm, 713 F .2d 546
(1 0th Cir. 1983) ................ 7

Shultz v. Palmer, No. 85-50 ....... 5

Standard Oil Co. v. United
States, 267 U.S. 76 (1925) ..... 22,23

Tillson v. United States, 100
U.S. 43 (1879) ................. 19

iv



Case Page
United States v. Alcea Band 

of Tillamooks, 341 U.S. 48 
( 1951 ) ...... .................. . 14,15

United States v. Goltra, 312
U.S. 203 ( 1941 ) ................  17,18

United States v. Louisiana,
446 U.S. 253 ( 1980) ............  16

United States v. New York 
Rayon Importing Co., 329 
U.S. 654 ( 1947) ................  17,18

United States v. North
America Trans. & Tradinq
Co., 253 U.S. 330 ( 1920) ......  17, 18

United States v. Sherman, 98
U.S. 565 ( 1879) ................  19

United States v. Thayer-West 
Point Hotel Co., 329 U.S.
585 ( 1947) ...................... 17,18

United States v. Worley, 281
U.S. 339 ( 1930) ................  22,23

United States ex rel Angerica 
v. Bayard, 127 U.S. 251 
( 1888) .... .....................  1 5

Williams v. T.V.A., 552 F.2d
691 (6th Cir. 1977) ............  9

- v -



Page

Statutes:

42 St at,, 1590, ch. 192
(5-15-22) ...................... 20

42 U.S.C. § 20 00e-5(k ) ...........
1,8

,10,18,24

42 U.S.C. § 2000e-15 .............

Legal Pees Equity Act ............

Section 717 of the Equal 
Employment Opportunity 
Act of 1972 ...................

Section 177, Judicial Code ....... 17

28 U.S.C. § 2516(a) ..... . 17

Other Authorities

"Counsel Fees in Public Interest 
Litigation," Report by the 
Committee on Legal Assistance, 
39 The Record of the Associa­
tion of the Bar of the City of 
New York 300 ( 1984) ..... . 7

Legislative History of the Equal 
Employment Opportunity Act of 
1972, Committee Print, Subcom­
mittee on Labor of the Senate 
Committee on Labor and Public 
Welfare (1972) ................

- vi -



Page
Ralston, The Federal Government 

as Employer; Problems and 
Issues in Enforcing the Anti- 
Di'scr'iminatToh'" Laws^ 10 Ga.
L. Rev. 717 ( 1976) ...... . 10

Schlei and Grossman, Employment 
Discrimination Law (2nd Ed.
1983) ...........................  1 1,24

S. Rep. 92-45 (92d Cong. 1st
Sess.) ................... ......  1 3

- vii



No. 85-54
IN THE

SUPREME COURT OF THE UNITED STATES 
October Terns, 1985

LIBRARY OF CONGRESS, et al.,
Petitioners,

v.

TOMMY SHAW

On Petition for a Writ of Certiorari 
to the United States Court of Appeals 
for the District of Columbia Circuit

BRIEF IN OPPOSITION TO THE 
PETITION FOR A WRIT OF CERTIORARI

STATUTE INVOLVED

In addition to 42 U.S.C. § 2000e- 
5(k), set out in the petition, this case 
involves Section 717 of the Equal Employ­
ment Opportunity Act of 1972, 42 U.S.C. 
§ 2000e-16, which is set out in the
appendix hereto.



2

STATEMEMT

In general^ respondent adopts the 

statement of the case of the petitioners, 

but would like to emphasize two points. 

First, a significant part of the delay 

between settlement of the merits and 

disposition of the attorneys' fee issue 

was occasioned by the district court's 

waiting for the disposition of the appeal 

in Copeland v. Marshall, 641 F . 2d 880 

{D . C . Cir. 1 980 ), that was taken by the 

government.

Second, the issues raised by this 

case should not be viewed in isolation 

from the government's persistent attempts 

to have fees assessed against it in 

employment discrimination cases on a 

different basis than that which applies to 

all other employers. Following the 

rejection of arguments in Copeland that 

fees against the government should be



3

based on a "cost-plus'1 * * * * * * * 9 analysis, and 
therefore should be lower, the government, 
first in cases in the District of Columbia 
and later elsewhere, has adamantly argued 
that fees to a prevailing party should not 
be awarded at rates higher than, first, 
$60 per hour, and later $75 per hour. 
This, and other practices that have led to 
the prolongation of attorneys' fees 
litigation, have been severely criticized 
by the court of appeals^ and the district

1 Thus, in Parker v. Lewis, 670 F.2d 249, 
250 n.2 (D.C. Cir. 1982), the court found 
it "difficult to accept the bona fides of 
a contention that a $60 per hour fee is 
the appropriate maximum for an experienced 
attorney in the District of Columbia."

In National Ass'n of Concerned Vets. v. 
Sec, of Defense, 675 F.2d 1319, 1337-38
"(D.C. Cir. 1982), Judge Tamm, concurring,
was sharply critical of the government's 
tactics in opposing attorneys' fees. He
noted repeated requests for extensions of 
time, the failure to conduct any dis­
covery, and the making of "broadly based, 
ill-aimed attacks" and "nit-picking
claims." See also 675 F.2d at 1329-30.

In Commonwealth of Puerto Rico v.
Heckler, 745 F.2d 709, 714 (D.C. Cir.~ 
1984), the circuit court noted this



4

court in the District of Columbia, 2 but

Court's admonitions that attorneys' fees 
requests should not result in "a second 
major litigation." It warned against 
"obdurate and intransigent" "non-nego- 
tiable postures on fee awards" that "will 
not be 'worthy of our great government.’”

2 In Kyles v. Secretary of Agriculture, 604 
F. Supp. 426 (D.D.C. 1985), Judge
Oberdorfer, the district judge in the 
present case, recited a long history of 
delaying tactics and unreasonable posi­
tions taken by the government. One result 
of this history was that the plaintiff, 
although she had already prevailed on the 
merits, had to borrow money to pay her 
lawyer. The judge concluded:

It is a fact of life that in most 
employment discrimination cases the 
client or the lawyer does not have 
the resources to hold out for as long 
as the government can protract a fee 
dispute. There are strong indica­
tions that, knowing this, some civil 
officers of the Executive Branch have 
drawn a line in the dust? any party 
or lawyer who claims more than $75 
per hour will have to fight for it —  
through formal discovery anddilatory 
motions for extensions of time and 
for reconsideration, capped by 
automatic appeals, many of them 
abandoned when briefing time 
approaches. By this form of "jaw­
boning ," these officers may well be 
attempting to enact a d_e facto 
ceiling of $75, contrary to EFTS’ 
statutes enacted by Congress and 
authoritatively interpreted by the 
courts,



5

persist even in the face of Congress' 
refusal to amend the attorneys' fees 
statutes to enact such limits.  ̂ Thus, the
arguments advanced in this case and Shultz 
v. Palmer, No. 85-50, are part of an 
overall effort to evade the clear intent 
of Congress that the United States be 
liable for fees "the same as a private 
person."

504 F. Supp. at 436.
See also the district court's opinion in 
Palmer v. Shultz, reprinted in the 
petition for writ of certiorari in No. 
85-50 at pp. 42a-43a.

 ̂ The "Legal Fees Equity Act," drafted by 
the Department of Justice, was introduced 
in the 98th Cong., 2d Sess., as H.R. 5757 
and S. 2802. The Act would have placed an 
absolute cap of $75 on fee awards against 
the government and would have prohibited 
all multipliers or upward adjustments. The 
bill failed to be reported out of commit­
tee in either house.



6

REASONS FOR DENYING THE WRIT
SUMMARY

Respondent urges that the Petition 

should be denied for a number of reasons: 

First, the decision below is fully 

consistent with holdings of this court 

that Section 717 of the Equal Employment 

Opportunity Act of 1972 was intended to 

and did give federal employees the same 

rights in actions brought under Title VII 

of the Civil Rights Act of 1964 as were 

enjoyed by all other employees. Chandler 

v. Roudebush, 425 U.S. 860 (1976)? Brown 

v. General Services Administration, 425 

U.S. 820 (1976).

Second , the clear intent of Congress 

was to enact a complete waiver of the 

sovereign immunity of federal agencies in 

cases brought under Title VII to remedy 

discrimination in employment. Therefore,



7

any holding to the contrary would be
completely at odds with the purposes of 
Section 717.

Third, it is clear, and the govern­
ment does not dispute the point, that 
adjustments to attorneys' fee awards to 
compensate for delay in payment are a 
necessary part of calculating a reasonable 
fee in civil rights cases. Indeed, the
courts of appeals have been, to date,

. . 4unanimous m  so holding, and such a

4 See, e,g., Copeland v . Marshall, 641 F.2d 
at 892-93; Institutionalized Juveniles v. 
Secretary oi Public Welfare, 758 F.2d 897 
"(3rd Cir. 1'9'8"5); Graves". Barnes, 700 
F .2d 220, 224 (5th Cir. 1983); Gautreaux 
v. Chicago Housing Authority, 690 F.2d 
601, 612 ( 7th Cir. 19"82); Jorstad v. IDS 
Realty Trust, 643 F.2d 1305, 1313 (8th 
Cir. 1981); Ramos v. Lamm, 713 F.2d 546, 
5 55 ( 1 0th Cir. T985) ; Johnson v .
University College of the University of 
Alabama, 706 F. 2d 1205, 1210-1 1 ( 1 1th Cir. 
1983). See also "Counsel Fees in Public 
Interest Lit igation," Report By the 
Committee on Legal Assistance, 39 The 
Record of the Association of the Bar of 
the City of New York 300, 318 (1984).



8

conclusion is consistent with the deci­

sions of this court with regard to 

attorneys’ fees.
Finally , the decision of the court 

below, stating that the language of 42 

U.S.C. § 2000e-5(k) that the United States 

is to be held liable for costs and 

attorneys' fees "the same as a private 

person” requires that fees against the 

federal government be calculated in the 

same way as they are against any other 

party, is clearly correct. The govern­

ment's reliance on cases involving the 

assessment of interest on ordinary damage 

awards against the government is simply 

misplaced,

DISCUSSION 

1. Background

This case must be placed in the 

context of the long, and somewhat dis­



9

tressing, history of the government's 
attempts to argue that despite the clearly 
expressed intent of Congress, it is to be 
treated differently than other employers 
in Title VII cases. That history, which 
need not be detailed here at length,5 6 7 
began with arguments that trials of 
employment claims against the government 
should not be <3e novo proceedings, ̂  
continued with arguments that the govern­
ment could not be subjected to class 

7actions, and persists with the govern­
ment's efforts to argue that the relief 
that may be awarded against it is less 
than the relief that is commonplace when 
an employer that is not a federal agency

5 Seef Brief for Respondent in United States
Postal Service Bd. of Governors v. AikensT 
No. 81-1044, pp. 42-48, for a recounting 
of this history.

6 Chandler v. Roudebush, supra.
7 See, Eastland v. TVA, 553 F.2d 364 (5th 

Cir. 1977) and Williams v. T.V.A., 552 
F .2d 691 (6th Cir. 1977).



10

is involved. Indeed, early on the

government went so far as to argue, in the

face of the clear language of § 2000e-

5 (k ) , that sovereign immunity barred any
8award of attorneys8 fees.

2, Section 717 is a Complete Waiver 
oFlSoverelfc^

Thus, this case in fact raises a 

broader question than that presented by 

the government; if certiorari is granted, 

respondent will argue that in all 

respects, whether it be with regard to 

attorneys9 fees or backpay on behalf of a 

plaintiff, precisely the same relief can 

be obtained against federal agencies as 

can be obtained against any other em­

ployer . We contend that this was the 

clearly expressed intent of Congress when

 ̂ See Ralston, The Federal Government as 
Employer: Problems andTs¥uesTrTEn'fbrci'ng 
the Anti-Discrimination Laws, 10 Ga. lT 
Rev. 717, 719 n.13 (i$76) .



it enacted Section 717 and, indeed, this 

Court has so held in cases interpreting 

both the language and the intent of 

Section 717. Chandler v. Roudebush, 

supra; Brown v. GSA, supra.

As this Court noted in Brown v. GSA, 

425 U.S. at 826-827, one of the main 

concerns of Congress when it enacted the 

Equal Employment Opportunity Act in 1972 

was to eliminate any question that 
sovereign immunity barred or limited the 

relief that may be obtained by federal 

employees upon proof of a violation of 

their right to be free of discrimination 

in employment. A leading decision had 

held, for example, that sovereign immunity 

was a bar to an action challenging a 

denial of a promotion on the ground of a

violation of the Executive orders prohi-
9biting discrimination. 9

9 Gnotta v» United States, 415 F.2d 1271 
T8th”Ci7:_T969) . See Schlei and Grossman, 
Employment Discr iinTsnation Law, 1 187-89 (2d



12

In 1972, of course, another concern 

of Congress was to broaden the relief 

provisions of Title VII generally so as to 

ensure that employees who had suffered 

discrimination could be made whole in 

every respect. See, Franks v. Bowman 

Transportation Co., 424 U.S. 747, 763-64 

(1976). With regard to the federal 

government, Congress did not to attempt to 

enumerate all the possible types of relief 

that federal employees might obtain. 

Instead, Congress simply incorporated the 

relief provisions that applied to private 

and state and local government employees 

into Section 717's provision regarding 

actions brought by federal employees.  ̂̂ * 10

ed. 1983), for a discussion of the history 
of § 717.

10 42 U.S.C. § 2000e-16(d) states that, "The 
provisions of section 706{f) through (k ), 
as applicable, shall govern civil actions 
brought hereunder." Thus, the provisions 
governing actions against private and 
state and local government employers 
"govern such issues as . . . attorneys' 
fees and the scope of relief." Brown v.



13

In committee reports Congress

reiterated that its specific purpose was

to ensure that federal employees obtain

precisely the same type and scope of

relief that was available to all other 
1 1employees . Thus , Congress' failure to 

specify that adjustments in attorneys' 

fees and backpay awards to compensate for 

delays in payment can be made, cannot be 

read as an intent to bar such relief. To 

the contrary, the clear intent was to 

effect a complete, total, and absolute 

waiver of sovereign immunity with regard 

to the remedies obtainable under Title 
VII. 11

GSA, 425 U.S. at 832.

11 See, S. Rep. 92-45 (92d Cong. 1st Sess), 
p. 16, reprinted in Legislative History of 
the Equal Employment Opportunity Act of 
1972, a Committee Print of the Subcommit­
tee on Labor of the Senate Committee on 
Labor and Public Welfare (Nov. 1972), p. 
425 (hereinafter "Legis, Hist„i!). See 
also Legis. Hist. 1851 (Conference 
Committee Report)? Legis. Hist. 85 (House 
Report).



14

3 . The Decision Below Does Mot 
Conf 1 ict1~wTtE~P'rlor Decisions of 
ThTs~Court

The various cases cited by the 

government in its petition for writ of 

certiorari are simply inapposite. Neither 

the language of the statutes involved nor 

anything in their legislative history 

indicates an intent to abrogate sovereign 

immunity in its entirety. Rather, the 

intent was to provide limited remedies, 

depending upon the nature of the claim and 

the role of the government in the circum­

stances involved.

For example, petitioners contend, 

petition at 8, that United States v. Alcea 

Band of Tillamooks, 341 U.S. 48, 49 (1951) 

can be read for the proposition that 

interest cannot be recovered "unless the 

awarding of interest was affirmatively and 

separately contemplated by Congress." Yet 

Alcea makes no mention of Congressional



15

"contemplation," nor any suggestion that 
interest must be "affirmatively" or 
"separately" contemplated or even provided 
for in the statute. "Express" statutory 
provision is all that Alcea requires. Id♦ 
at 49. The Act in question in Alcea, 49 
Stat. 801, ch. 686 (8-25-35), was strictly 
jurisdictional in nature, and was silent 
on the matter of specific relief, let 
alone interest. There was not, needless 
to say, any analogy to private defendants.

Indeed, in all save one of the cases 
cited there is no analogy, as in the Title 
VII context, to any previous statutory 
scheme which awarded interest against 
private defendants. These cases dealt 
solely with statutes that were uniquely 
applicable to actions against the federal 
government. U.S. ex. rel. Angerica v. 
Bayard, 127 U.S. 251 (1888),12 for example, 1

12 Cited at petition, p. 9.



16

concerned a contractual agreement between 

the State Department and Spain; there was 

no statute or Congressional action 

whatsoever. In U„S» v. Louisiana, 446 

U.S. 253 {1980)f13 the disputed provision 

concerned a specific agreement between the 

federal government and a state regarding 

receipts from minerals which had been 

removed and held by the federal government 

until a jurisdictional controversy could 

be resolved. Id. at 256. There could be 

no analogous statutory scheme regarding 

private parties. Similarly, Albrecht v. 

U.S. , 329 U.S. 599 ( 1 947), 14 concerned 

one-time, individual land-purchase 

agreements entered into by the United 

States. Those contracts did not provide 

for interest.

^3 cited at p. 9.

14 Cited at p. 9,



17

Petitioners cite, at pp. 9-10, a 

series of cases, U.S. v. New York Rayon 

Importing Co. , 329 U.S. 654 ( 1947), U.S. 
v. Thayer-West Point Hotel Co., 329 U.S. 
585 (1947), U.S. v. Goltra, 312 U.S. 203 

(1941), and U.S. v. North American Trans. 

& Trading Co., 253 U.S. 330 (1920), which 

denied interest under § 177 of the 

Judicial Code (predecessor of 28 U.S.C. § 

2516(a)), which permitted awards of 

interest against the United States in the 

Claims Court "only under a contract or Act 

of Congress expressly providing for 

payment thereof."

Petitioners are correct that § 177 

merely "codified the traditional rule," 

see, e .g ., New York Rayon, 329 U.S. at 

658, but reliance on these cases is faulty 

for at least two reasons. First, there is 
no basis for concluding that the require­

ment of expressness is lacking in the 

instant case. The court below in fact



18

held that the waiver in 42 U.S.C. § 2000e-

5(k) is express. App. to petition (P.A.),

pp. 17a and 18a. Second, the cited cases

all deal with narrow and specific Acts,

leases, and contracts, in regard to which

only the United States can be a defendant

party. None reflect a complex statutory

sheme, such as that found in Title VII,
§ 717, in which Congress has elected to

establish a comprehensive parallel between

civil actions running against both private
1 5parties and the federal government.

New York Rayon concerns the Act of May 14, 
1937, 50 Stat. 137, 142, ch. 180, and the 
Act of June 25, 19 38, 52 Stat. 1114, 1149, 
ch. 681, appropriation statutes regarding 
refunds on customs duties. 329 U.S. at 
659. Thayer-West Point discusses the Act 
of March 30, 1920, providing for "just 
compensation" for construction of a hotel 
on U.S. Army property, and a private lease 
between the Secretary of War and the 
plaintiff under the provisions of that 
Act. 329 U.S. at 586. Goltra concerns a 
private contract between the plaintiffs 
and the federal government, providing 
simply for "just compensation" in regard 
to a lease of boats. 312 U.S. at 205-06. 
North American Trans. & Trading involved 
an implied contract concerning the taking 
of private land. 253 U.S. at 335.



19

U.S. v. Sherman, 98 D.S. 565 (1879), 

also cited by petitioner at p . 10, 

concerns the Acts of March 3, 1863 and 

July 28, 1866, which merely confer 
jurisdiction for suits against revenue 

officers for which the Treasury is liable. 

Id. at 565, 567. Tillson v . U .S ., 100 

U.S. 43 (1879), cited at p. 11, dealt with 

a "special" Act between plaintiff and the 

United States, providing for relief 

"equitably due." Id. at 46. There, the 

Supreme Court explicitly noted that "[t]he 

special statute does not even provide that 

the adjustment shall be made upon prin­

ciples applicable to suits between 

citizens." Id.

In Title VII, on the other hand, 

Congress clearly meant to have § 717 

provide plaintiffs with a full scope of 

remedies against the federal government, 

equivalent to those available against



20

private parties. The context as well as 

the language of the statute makes such a 

conclusion more than "express."

The structure of § 717 and Title VII 

is simply unlike any in the cases cited by 

petitioners. In the cited cases, there 

was not a clear intention of Congress to 

construct a parallel scheme of remedies 

between private defendants and the federal 

government. The one apparent exception is 

Boston Sand Co. v. U . S . , 278 U.S. 41 

( 1 928), cited at p. 10. Boston Sand 

concerned yet another "special" private 

Act,^  yet this one awarded damages against 

the United States "upon the same principle 

and measure of liability with costs as in 

like cases ... between private 

parties...." 287 U.S. at 46.

16 42 Stat. 1590, ch. 192 (5-15-22)



21

In denying an award of interest 
against the United States, however, 
Justice Holmes found that close scrutiny 
of the context of the statute indicated 
that Congress did not mean to "put the 
United States on the footing of a private 
person in all respects." Id. at 47. 
Holmes was satisfied that a subsequent 
statute denying interest expressed a 
policy which had been assumed for many 
years previously. Congress was accustomed 
to using "a certain phrase with a more 
limited meaning than might be attributed 
to it by common practices," i_d. at 48; 
that interest was excluded in many similar 
private acts was "generally ... under­
stood." Id. at 47. An examination of 
Congressional intent in the present case, 
in contrast, yields precisely the opposite 
result, namely, that Congress meant to put 
the federal government on identical 
footing with all other defendants.



22

As the court below noted, P.A. at 
33a-34a, this case is squarely governed by 
Standard Oil Co, v. U . S . , 267 U.S. 76 

(1925), where the federal government was 
held liable for interest despite the 
absence of an express waiver. In that 
case, the Court ruled that where the 
Dnited States acts as a private insurer, 
"it had without more consented to be 
treated as a private insurer.'* P.A. at 
34a. See 267 U.S. at 79.

Petitioners' attempt to limit 
Standard Oil by reliance on U.S. v . 
Worley, 281 U.S. 339 (1930), is unfounded. 
Petitioners note that in Worley the Court 
declined to apply Standard Oil "outside of 
its specific commercial and contractual 
context." Petition at p. 11, n.9, citing 
Worley, 281 U.S. at 343-44. But such 
logic begs the question, for, as the court 
below noted, it is precisely in their 
"specific commercial and contractual



23

contexts" that Standard Oil and Worley 
diverge fundamentally, in that the U.S. 
was serving as a private insurer only in 
the former. P . A . at 34a, n . 1 1 6 . In 
Worley, the government was merely disburs­
ing disability benefits to servicemen, a 
function without a parallel in the private 
world. 281 U.S. at 342-43. The United 
States was not acting, as in Standard Oil, 
in the same role as that of private 
insurers. Thus, the difference in the 
essential context of the government's 
position in the two cases directly 
parallels the distinctions between the 
litany of cases with which petitioners 
buttress their claim, and the actual role 
of the United States in the specific
scheme of Title VII as amended.



24

4. There Is Ho Conflict of Cir­
cuits

Finally, no other circuit, to 
respondent's knowledge, has held that 
attorneys' fees awards against the federal 
government in Title VII cases are not to 
be calculated on precisely the same basis 
as are awards against all other employees. 
The Title VII decisions cited by the 
government at p. 15 of the petition 
involve back pay awards. Therefore, they 
do not involve the specific language of 
§ 2000e-5(k). The decisions interpreting 
the Equal Access to Justice Act cited at 
p. 16 are similarly inapposite.

17 Moreover, as indicated above, if certio­
rari is granted respondent will argue that 
those cases were wrongly decided for the 
reasons outlined here at pp. 10-13. See 
also, Schlei and Grossman, Employment
Discrimination Law 1214 n.175 (2d ed. ---------------------



25

CONCLUSION

For

petition

the foregoing 

should be denied.

reasons, the

Respectfully submitted,

JULIUS LEVONNE CHAMBERS 
CHARLES STEPHEN RALSTON 

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



STATUTORY APPENDIX



1a

42 U.S.C, § 20Q0e~16

(a) All personnel actions 
affecting employees or applicants for 
employment (except with regard to aliens 
employed outside the limits of the United 
States) in military departments as defined 
in section 102 of title 5, United States 
Code, in executive agencies as defined in 
section 105 of title 5, United States Code 
(including employees and applicants for 
employment who are paid from nonappro- 
priated funds), in the United States 
Postal Service and the Postal Rate 
Commission, in those units of the Govern­
ment of the District of Columbia having 
positions in the competitive service, and 
in those units of the legislative and 
judicial branches of the Federal Govern­
ment having positions in the competitive 
service, and in the Library of Congress 
shall be made free from any discrimination



2a

based on race, color, religion, sex, or 
national origin.

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

(1) be responsible for the annual 
review and approval of a 
national and regional equal 
employment opportunity plan 
which each department and agency 
and each appropriate unit 
referred to in subsection (a) of



3a

this section shall submit in 
order to maintain an affirmative 
program of equal employment 
opportunity for all such 
employees and applicants for 
employment;

(2) be responsible for the review 
and evaluation of the operation 
of all agency equal employment

.opportunity programs, perio­
dically obtaining and publishing 
(on at least a semi-annual 
basis) progress reports from 
each such department, agency, or 
unit; and

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

The head of each such department, agency, 
or unit shall comply with such rules,



4a

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

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

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



5a

employment opportunity program 
and of the allocation of 
personnel and resources proposed 
by such department, agency, or 
unit to carry out its equal 
employment opportunity program. 

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

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



6a

Executive orders, or after one hundred and 
eighty days from the filing of the initial 
charge with the department, agency, or 
unit or with the Civil Service Commission 
on appeal from a decision or order of such 
department, agency, or unit, an employee 
or applicant for employment, if aggrieved 
by the final disposition of his action as 
provided in section 706, in which civil 
action the head of the department, agency, 
or unit, as appropriate, shall be the 
defendant.

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

(e) Nothing contained in this 
Act shall relieve any Government agency or 
official of its or his primary responsibi­
lity to assure nondiscrimination in 
employment as required by the Constitution 
and statutes or of its or his responsibi­
lities under Executive Order 11478



i
I t

- 7a -

relating to equal employment opportunity 

in the Federal Government. (July 2 , 1964,

P.L. 88--352, title VII, § 717, as added

Mar. 24, 1972, P.L. 92-261, S 11, 86 Stat.

111, as amended, Feb. 15, 1.980, P.L.

96-191, § 8(g), 94 Stat. 34.)



Hamilton Graphics, Inc.— 200 Hudson Street, New York, N.Y.— (212) 966-4177