Knowles v. Board of Public Instruction of Leon County, FL Reply Brief for Appellant

    No. 79-647

<31*1 t\\t Supreme Qlourt of tf|e United States

O ctober T erm, 1979

Barbara N. C opeland , petitioner

V’.

S amuel R. M artinez , D irector , 
Community  Services A dministration

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

THE DISTRICT OF COLUMBIA CIRCUIT

MEMORANDUM FOR THE RESPONDENT 
IN OPPOSITION

W ade H. M cC ree, J r . 
Solicitor General 
Department o f Justice 
Washington, D. C. 20530



(3ln the §uprmte (!lourt of the Mmted States
O ctober T erm, 1979

No. 79-647
Barbara N. C opeland , petitioner

V '.

Samuel R. M artinez , D irector , 
C ommunity  Services A dministration

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

THE DISTRICT OF COLUMBIA CIRCUIT

MEMORANDUM FOR THE RESPONDENT 
IN OPPOSITION

Petitioner contends that Section 706(k) of Title VII of 
the Civil Rights Act, 42 U.S.C. 2000e-5(k),1 deprives the 
district courts of their historic equitable power to assess 
attorneys’ fees against a party who has acted in bad faith 
whenever the party acting in bad faith is a Title VII 
plaintiff bringing suit against the United States.

1. In this Title VII action, the trial court found that 
petitioner “acted vexatiously, maliciously, and in bad

'Section 706(k) provides in relevant part (42 U.S.C. 2000e-5(k)):
In any action or proceeding under this title the court, in its 

discretion, may allow the prevailing party, other than the 
Commission or the United States, a reasonable attorney’s fee as 
part of the costs * *

( 1)



2

faith in bringing and maintaining this action and has 
intentionally abused the judicial process” (Pet. App. 
30a). The court found that her allegations of discrimina­
tion were “baseless and frivolous” (ibid.), that she had 
“consistently used grievances, threats of filing grievances, 
EEO complaints, threats of EEO complaints, and the 
EEO process in general to harass her supervisors and to 
improperly further her career and enhance her office 
status” {id. at 25a). The court stated that “[tjhe evidence 
demonstrates conclusively that [petitioner] * * * inten­
tionally conducted a vendetta against * * * the CSA 
management, harassing them by virtually every means 
available including use of the EEO process to bring 
baseless charges of discrimination” (id. at 30a). Relying 
on its inherent equitable power to award attorneys’ fees 
in actions brought in bad faith and for oppressive 
reasons {id. at 32a-33a), the district court awarded the 
United States costs of $3,520.89, including an attorneys’ 
fee of $3,193.40 {id. at 38a).

On appeal, petitioner did not challenge the finding by 
the district court that she had brought this action in bad 
faith. Instead, petitioner argued only that Section 706(k) 
of Title VII deprives the court of any power to award 
attorneys’ fees to the United States in Title VII actions, 
even in cases involving intentional abuse of the judicial 
process. The court of appeals rejected that claim, holding 
that Section 706(k) does not abrogate the courts’ 
common law authority to penalize a party who brings 
suit in bad faith by awarding attorneys’ fees (Pet. App. 
21a):

It is the need to preserve the integrity of the 
judicial process which ultimately, in the face of 
inconclusive statutory language and legislative 
history, convinces us that Congress would not have 
wished to foreclose recovery here.



3

L /

2. The decision of the court of appeals is correct and 
does not conflict with any decision of this Court or the 
other courts of appeals. Further review of the decision in 
this case is therefore unwarranted.

Petitioner acknowledges that it has long been 
established, even under the limited American common 
law rule, that attorneys’ fees may be awarded against a 
party who has initiated and conducted litigation in bad 
faith. Alveska Pipeline Service Co. v. Wilderness Society, 
421 U.S. 240, 258-259 (1975). Petitioner argues, however, 
that in enacting Section 706(k) of Title VII, Congress 
implicity preempted this common law rule in suits 
brought against the United States under that litle. The 
court of appeals properly rejected petitioner’s contention.

Section 706(k) was enacted to expand the common law 
attorneys’ fee rule in Title VII actions by providing that 
attorneys’ fees may be awarded in such actions to any 
“prevailing party,” 42 U.S.C. 2000e-5(k). A prevailing 
plaintiff or defendant thus need not show that an action 
or defense was urged in bad faith to obtain attorneys’ 
fees under Title VII. Christiansburg Garment Co. v. /  /  
EEOC, 434 U.S. 412 (1978). At the same time, h o w ev er,^  
Section 706(k) provides that attorneys’ fees may not be fy] 
awarded under Title VII to the United States. But, as the 21- 
court of appeals concluded (Pet. App. 11a):

the excepting language [of Section 706(k)] * * * j 
was meant to exclude the United States only from 
the statutory allowance of fees, governed by the---, 
expansive “prevailing party” standard, and to leave 
undisturbed the narrow equitable exception in cases 
of bad faith.

Petitioner argues (Pet. 6-14) that, under Brown v. 
GSA , 425 U.S. 820 (1976), the remedies afforded by Title 
VII should be exclusive and that, because the govern­
ment is not entitled to obtain attorneys’ fees under



Section 706(k), it may not be awarded fees in any Title 
VI1 litigation. But, as the court of appeals emphasized, 
the award of attorneys’ fees under the common law rule 
is punitive, not remedial. It is designed “to preserve the 
integrity of the judicial process” in actions brought in 
bad faith or for the purpose of harassment (Pet. App. 
21a).

As this Court stated in Hall v. Cole, 412 U.S. 1, 5 
(1973) (emphasis added):

[l]t is unquestioned that a federal court may award 
counsel fees to a successful party when his opponent 
has acted “in bad faith, vexatiously, wantonly, or 
for oppressive reasons.” * * * In this class of cases, 
the underlying rationale o f "fee shifting” is, o f 
course, punitive, and the essential element in 
triggering the award of fees is therefore the existence 
of “bad faith” on the part of the unsuccessful 
litigant.

See also Hutto v. Finney, 437 U.S. 678, 689 n.14 (1978). 
Because the award of attorneys’ fees against a party 
acting in bad faith is designed to preserve the integrity of 
the judicial process and is only “incidentally” remedial 
(Pet. App. 21a n.68), the court of appeals correctly held 
that Section 706(k) does not withdraw the court’s 
discretionary authority to award fees against a Title VII 
plaintiff whose claims are “baseless and frivolous” and 
are brought in bad faith to harass supervisors and obtain 
unmerited promotions (Pet. App. 25a-30a).

Petitioner suggests (Pet. 20) that “the in terrorem 
effect of the possibility of an award of counsel fees under 
any circumstances would seriously inhibit the enforce­
ment of the Act.” But, as the court of appeals noted 
(Pet. App. 19a), the common law attorneys’ fee rule has 
not chilled the filing of lawsuits in general and it will not



5

have that effect under Title VII. The common law 
attorneys’ fee rule would deter the enforcement of Title 
VII only if employees with meritorious claims believed 
that the courts were likely to so mischaracterize or 
misconstrue their complaints as to find them not only 
without merit, but vexatious and intentionally abusive of 
the judicial process as well. Such a result is not likely tcy 
occur. Moreover, in Christiansburg Garment Co. v. 
EEOC, supra, 434 U.S. at 421, the Court determined 
that prevailing defendants in private Title VII litigation .A 
could recover attorneys’ fees on a far lesser showing than \ 
bad faith, despite the fact that “the plaintiff is the chosen 
instrument of Congress to vindicate [the policies of Title / 
VII].” 434 U.S. at 418.

It is therefore respectfully submitted that the petition 
for a writ of certiorari should be denied.

W ade H. M c C ree, J r.
Solicitor General

D ecember 1979

DOJ-1979-12