Rhett v Carnegie Center Brief Plaintiff-Appellant

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIRST CIRCUIT 
No. 77-1359

HELEN H. REYNOLDS,

Plaint iff-Appellant,
-v-

PATRICK F. COOMEY, et al
Defendants-Appellees.

On Appeal From The United States District Court 
For The District of Massachusetts

BRIEF FOR PLAINTIFF-APPELLANT

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
BILL L. LEE 
JAMES C. GRAY, JR.

10 Columbus Circle 
Suite 2030
New York, N.Y. 10019

Counsel For Plaintiff-Appellant



I N D E X

Page
ISSUES PRESENTED FOR REVIEW .......................... 1

STATEMENT OF THE CASE ................................ 2
A. Procedural Background .....................  3
B. The Nature of Plaintiff's Claim and the

Relief Afforded Her by the Settlement ....  6
C. The District Court's Decision on Attorneys'

Fees ........................................ 8
D. The Litigation Below ......................  10

ARGUMENT
I. Plaintiff Clearly Prevailed Below and Was

Entitled to Reasonable Attorneys' Fees .... 18
II. The Court Misapplied Johnson v Georgia 

Highway Express, Inc. in Arriving at its
Award ....................................... 20

1. Time and Labor Required ........... 21
2. The Novelty and Difficulty of the

Questions .......................... 24
3. The Preclusion of Other Employment. 28
4. Relevant Factors Ignored by the

Court ..............................  30
III. The District Court's Denial of Reasonable 

Attorneys' Fees Defeats The Purpose of
The Statute ................................  34

IV. Plaintiff is Entitled to Her Costs and
Expenses ...................................  37

V. Conclusion .................................  37

i



Cases:
Albemarle Paper Co. v. Moody, 422 U.S. 405,

45 L.Ed 2d 280 (1975) ............................. 34
Barth v. Bayou Candy, 379 F.Supp. 1201

(E.D.La. 1974) ....................................  30
Baxter v. Savannah Sugar Refining Corp., 459

F . 2d 437 ( 5th Cir. 1974) .......................... 33
Brandenburger v. Thompson 494 F.2d 885

(9th Cir. 1974) ...................................  29
Brown v. Culpepper, 559 F.2d 274 (5th Cir.1977) ......  31
Caro v. Schultz, 521 F.2d 1084 (7th Cir. 1975) .......  25
Chandler v. Johnson, 515 F.2d 251 (9th Cir.1975)......  25
Chandler v. Roudebush, 425 U.S.840, 48 L.Ed.

2d 416 ( 1976)................................  13,14,26,33
Chandler v. Roudebush, 14 EPD 1(7589

(C.D. Cal. 1977) ..................................  31
Clark v. American Marine Corp., 320 F.Supp.

709 (E.D.La. 1970) aff'd per curiam
437 F . 2d 959 (5th Cir. 1971) .....................  29,30

Copeland v. Usery,____ F.Supp.____,13 EPD
1(11395 (D.D.C.1977) ............................ 19,22,35

Davis v. County of Los Angeles, 8 EPD
1(9444 (C.D. Cal.1974) .............................  31

Fairley v. Patterson, 493 F.2d 598 (5th Cir.
1974) ..............................................  29

Fogg v. New England Telephone and Telegraph,
346 F.Supp.64 (D.N.H. 1972) ......................  19,32

Hackley v. Johnson, 360 F.Supp. 1247 (D.D.C. 1973)....  11,26
Hackley v. Roudebush, 520 F .2d 108(D.C. Cir. 1975).. 25,26,33
Haire v. Calloway, 326 F.2d 245 (8th Cir.1975)........  25
Hall v. Cole, 412 U.S.l, 36 L.Ed.2d 702 (1973) .......  36

Table of Authorities Page

ii



Page
Johnson v. Georgia Highway Express, Inc., 488

F . 2d 714 (5th Cir. 1974)...................  1,8,20,21,22
24,28,33,36

Jordan v. Fusari, 496 F . 2d 646 ( 2nd Cir. 1974).......... 29
Kiser v. Miller, 364 F.Supp. 1311 (D.D.C. 1973).......  23,24
Lea v. Cone Mills Corp., 438 F .2d 86

(4th Cir. 1971) ..................... .............  29
Matter of First Colonial Corp. of America v.

Baddock, 544 F . 2d 1291 (5th Cir. 1977) ............ 20
Miller v. Amusement Enterprises Inc., 426 F .2d

534 ( 5th Cir. 1970) ................. •.............  29
Natural Resources Defense Council, Inc. v.

Environmental Protection Agency, 484 F .2d
1331 (1st Cir. 1973) ..............................  29

Newman v. Piggie Park, 390 U.S. 400, 19 L.Ed.2d
1263 ( 1968) ........................................ 34

Oliver v. Kalamazoo Board of Educ., 73 FRD 30
(W.D. Mich. 1976) .................................  31

Parham v. Southwestern Bell Telephone, 433 F.2d
421 (8th Cir. 1970) ...............................  32

Parker v. Califano,____F.2d____, 14 EPD 117637
(D.C. Cir.1977) ................................  18,29,36

Parker v. Matthews, 411 F.Supp. 1059, aff'd
sub nom Parker v. Califano, ____F.2d____
(D.C. Cir. 1977)............................. 18,23,24,30

Rosenfeld v. Southern Pacific Co., 519 F.2d
527 (9th Cir 1975) ................................  30

Salone v. U.S., 511 F.2d 902 (10th Cir. 1975) ........  25
Schwann v. Charlotte-Mecklenburg Board of Educ.

66 FRD 483 (W.D.N.C. 1975) ........................ 31
Smith v. Kleindienst, 8 FEP 752 (D.D.C. 1974), 

aff'd in part and rev'sd in part sub nom 
Smith v. Levi 527 F .2d 853 (D.C. Cir.1975)

iii

30,31



Smith v. Kleindienst, 8 FEP 753 .......................  31
Sperling v. U.S., 515 F.2d 465 (3rd. Cir.1975) .......  25
Stanford Daily v. Zurcher, 64 FRD 680 (N.D.

Cal. 1974)   31
Torres v. Sachs, 538 F . 2d 10 (2nd Cir.1976) ........... 29
Wade v. Miss. Cooperative Extension Service,

378 F.Supp. 1251 (N.D. Miss. 1974) ...............  30
Walker v. Ralston Purina Co., 409 F.Supp.

101 (M.D. Ga. 1976) 30
Williams v. Saxbe, 12 EPD 1(11,130 (D.D.C.1976) 31
Wolf v. Frank, 555 F.2d 1213 (5th Cir. 1977) 20,33
Statutes:
42 U.S.C. §2000e ...................................  1,2,32,33
Other Authorities:
Legislative History of P.L. 94-559,

Civil Rights Attorneys' Fees 
Awards Act of 1976
House Report ......................................  29
Senate Report .....................................  35

Massachusetts Bar Association, Economic
Survey (1970) .....................................  33

Page

IV



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIRST CIRCUIT 
No. 77-1359

HELEN H. REYNOLDS,
Plaintiff-Appellant,

-v-
PATRICK F. COOMEY, et al

Defendants-Appellees.

On Appeal From The United States District Court 
For The District of Massachusetts

BRIEF FOR PLAINTIFF-APPELLANT 

ISSUES PRESENTED FOR REVIEW
1. Did the District Court err in its application of the

guidelines announced in Johnson v. Georgia Highway- 
Express , Inc. , 488 F.2d 714 (5th Cir. 1974) to plain­
tiff's application for reasonable attorneys' fees.

2. Did the District Court err in denying counsel employed 
by a public interest law office an award of attorneys' 
fees pursuant to 42 U.S.C. §2000e-5(k).

3 Did the District Court err in not awarding plaintiff
her costs and expenses.



STATEMENT OF THE CASE

This appeal arises out of an individual employment 
discrimination suit brought by a black female employee of 
the federal government pursuant to the 1972 Amendments to 
Title VII, 42 U.S.C. §2000e-16. Plaintiff obtained an 
administrative determination that she had suffered from 
discrimination in her employment opportunities but received 
very limited relief. Plaintiff, therefore, brought this 
action in federal district court to obtain an adequate 
remedy. After litigating the matter over a two year period, 
the parties reached a settlement which provided for plaintiff 
to be retroactively promoted with back pay and back benefits. 
The parties also agreed to submit the question of attorneys' 
fees to the district court. After briefs and affidavits had 
been filed, the District Court rendered a decision which 
awarded plaintiff's lead counsel $2,500 for 102.5 hours of 
work but denied other counsel any fees for 136.2 hours spent 
in the prosecution of this litigation. The court also did not 
award plaintiff her costs and expenses. This appeal chal­
lenges the District Court's denial of reasonable attorneys' 
fees and its failure to award costs.—^

1/ For social security reasons, lead counsel has offered 
to settle his claim for fees for payment of the awarded fee 
within the current year. At the time of filing of this 
brief, it is believed that the issue of the adequacy of this 
award may therefore be resolved by the government's accept­
ance of this offer,thus removing it from the appeal.

2



A. Procedural Background
In October 1973, plaintiff an employee of the Boston 

District Office of the U.S. Immigration and Naturalization 
Service was "non-selected" for the position of Assistant 
Chief of the Records Administration and Information Section 
(RAIS), despite the fact that she was the top-ranked candi­
date for the post Instead of plaintiff, a white female 
employee who had been ranked fourth was selected. Pursuant 
to the administrative procedures established under the 1972 
Amendments,in November of 1973 plaintiff brought her com­
plaint to the agency's Equal Employment Opportunity (E.E.O) 
Counselor for attempted resolution. The counselor was unable 
to resolve informally her complaint, and plaintiff filed a 
formal complaint of discrimination in December of 1973, which 
resulted in an investigation being undertaken. In February 
1974, the agency's EEO officer informed plaintiff that 
based upon the investigation report he concluded that her 
allegations of discriminatin were not supported by the 
record. [ 9a]*

Plaintiff, nevertheless, continued on with the adminis­
trative process by requesting a hearing before a Civil 
Service Commission complaints examiner. Plaintiff obtained 
counsel and a hearing was held on April 22, 1974. Plaintiff's 
counsel, Mr. Putnam, presented her case and examined the

* References to the Appendix are denoted by the page 
number and a small "a"

3



witnesses. On July 22, 1974, the agency's Complaint Adjudi­
cation Officer acting on behalf of the agency wrote plaintiff 
informing her that he agreed with and adopted"the Complaint's 
Examiner's recommended decision that the evidence supports 
the complaint of discrimination because of race in this 
case". [14a] The agency, however, did not offer plaintiff a 
corrective promotion, back pay or a reasonable attorney's 
fee. The sole relief offered plaintiff consisted of training 
and a career development plan and "priority consideration" 
for a future vacancy. The decision also recommended correc­
tive training for the agency officials. [ 16a]

On August 19 , 1974, as provided for by 42 U .S .C .§200Oe- 
-16(c), plaintiff brought this suit in the United States 
District Court for Massachusetts against the U.S.I.N.S, the 
Boston District Director, Mr. Coomey, the Regional Commis­
sioner and the Attorney General of the United States. On 
December 13, 1974 defendants filed in response to plaintiff's 
complaint a Motion to Dismiss or In the Alternative For Sum­
mary Judgment along with a supporting memorandum. [33a,34a] 
On February 19, 1975 plaintiff filed her memorandum in oppo­
sition to defendants' motion. [44a] Plaintiff also filed 
an amendment and supplement to her complaint, which sought 
to amend her jurisdictional allegation and add a prayer for 
declaratory judgment on her entitlement to relief. [75a] 

On December 8, 1975, the Court heard argument on
defendants' Motion to Dismiss. On March 19, 1976, the Court

4



issued its opinion denying defendants' motion, ruling in 
favor of plaintiff's entitlement to relief and limiting 
further proceedings to a hearing on the remedy to be afforded 
plaintiff. [77a]

On October 18, 1976, plaintiff presented the court with 
her Memorandum on the Question of Remedy. This memorandum 
outlined certain information which plaintiff wished the 
government to prepare for determining her "rightful place". 
[83a] The Court instructed counsel for defendants to 
have the information prepared. The government by letter of 
November 8 submitted to plaintiff's counsel exhibits prepared 
in response to plaintiff's memorandum. [94a] On November 
30th, trial was held on the question of remedy. After com­
mencement of trial, the parties reached a settlement on the

2/issues of promotion, back pay and retroactive benefits.—' 
The question of attorneys' fees was reserved for submission 
to the Court.

During January 1977, plaintiff submitted her Motion 
for an Award of Costs and Attorneys' Fees with a supporting 
memorandum [105a, 107a] and counsel filed their affidavits.
[118a-142a] In February, defendants filed their memorandum 
in opposition [143a]. Plaintiff responded.(149a] No hear­
ing was held. On June 10th, the Court issued its memorandum

2/ The agreement was recorded by the Reporter. [2a] The 
government subsequently submitted to counsel a proposed sti­
pulation for dismissal. [166a] Plaintiff submitted instead a 
proposed consent decree that embodied the terms of the 
settlement. [103a] No order was entered.

5



and order on attorneys' fees.[4a] Plaintiff's Notice of 
Appeal from the June 10 order was filed on July 11, 1977 
[169a]. No cross-appeal was taken.

B . The Nature of Plaintiff's Claim and the
Relief Afforded her by the Settlement
Plaintiff began working at the Immigration and Natural­

ization Service (INS) as a clerk typist, CAF-1, in August 
1940. In 1961, plaintiff became an Applications Clerk at a 
G.S.5 level. Between 1959 and her "non-selection" in November 
of 1973, plaintiff received five awards for her work: 
three for sustained superior performance in 1959, 1964 and 
1969 and two for outstanding performance in 1971 and 1972. 
Despite her record, plaintiff was stymied in her attempts to 
advance beyond her clerk's position; on four occasions she 
applied for other positions in the agency with advancement 
potential and each time was "non-selected".

In 1970, plaintiff applied for a G.S.7 Secretary's 
position and in 1971 for a G.S.7 post as a Contact Represent­
ative. In 1972, she applied for one of several Immigration 
Inspector trainee positions which started at a G.S.5 level 
and after the trainee period progressed over two years to 
a G.S.9 level. The Immigration Inspector's position also had 
the potential of providing considerable overtime or develop­
ing into an Immigration Examiner's post at a G.S.ll level. 
With the exception of one of the Inspector Trainee posi­
tions, all of the posts went to white applicants. The one

6



black appointment coincided with defendant Coomey's own 
appointment.

In 1973, plaintiff applied for the G.S.7 position of 
Assistant Chief, RAIS. Despite the fact that she was clearly 
the top-rated candidate for the post, having received a score 
of 38 from the Regional Personnel Office's rating panel, 
defendant Coomey selected for the position a white female who 
was not on the panel's list of the three best qualified and 
had received a rating of only 31.3. [22a]

Plaintiff introduced at her hearing statistical and 
testimonial evidence that the Boston District office had a 
poor record of equal employment opportunity for blacks and 
women, that agency officials were poorly informed about their 
E.E.O. obligations, and that its agency affirmative action 
plans had not complied with federal directives. Among the 
testimony was that of the Deputy District Director who esti­
mated that plaintiff with her background, record and exper­
ience would have been at the time of the administrative hear­
ing anywhere from a G.S.12 to a G.S.16, if she had been a 
white male. [Hearing Transcript pp. 137-138]

The settlement entered into at trial provided for 
plaintiff to be appointed as an Immigration Inspector. She 
received a retroactive promotion to a position of G.S.7/Step 
4, effective April 18, 1971, and of G.S.9/Step 3, effective 
March 17, 1974. Plaintiff also received back pay and retroac­
tive pension rights and fringe benefits. Plaintiff's back pay

7



for the period from April 18, 1971 to October 10, 1976 
amounted to $5,392, and was to be supplemented by back pay 
accrued after October 10 until her actual appointment as a 
G.S.9. [103a, 97a] During the litigation but after the 
administrative decision, plaintiff was appointed to a G.S.7 
position which increased her income during the year and a 
half more of litigation by approximately $1,500. Plaintiff 
when she chooses to retire will receive retirement benefits 
based upon her G.S.9 position rather than a G.S.5/Step 10. By
1975 rates, the salary difference between a G.S.5/10 and a
G.S.9/3 was $2,773 per annum. Executive Order No. 11883,
effective October 1, 1975.

C . The District Court's Decision on Attorneys' Fees
The District Court in its June 10, 1977 decision ruled 

that plaintiff was a prevailing party within the meaning of 
42 U.S.C. §2000e-5(k ) and was therefore entitled to reason­
able attorneys'fees.[5a] The court then reviewed counsel's 
affidavits as to their time and requested rates and defend­
ants' response to the motion. [5a-6a]

The District Court proceeded to offer an analysis of 
the requests in terms of three of the guidelines set forth 
in Johnson v. Georgia Highway Express, Inc., 488 F .2d 714 
(5th Cir. 1974): ( 1 ) Time and labor required, (2) the
novelty and difficulty of the questions, and (3) the preclu­
sion of other employment. The court's treatment of these 
guidelines was brief. On time and labor required, the court

8



limited its analysis to discussing discounting time for 
overlaps due to conferences between counsel.[6a-7a] On the 
novelty and difficulty of the questions involved, the court
stated: "As the government's brief indicates, the question
were neither novel or difficult." [7a] Reference to the 
government's brief, however, provides only the following: 
"The issues in this case certainly were not novel."[ 146a] 
On preclusion of other employment, the court stated that lead 
counsel's average of 34 hours per year on the case for three
years was not a substantial preclusion and that the other

3 /attorneys were salaried employees of the N A A C P * (si c ) [7a]
The court discussed the government's contention that 

the amount of fees should be governed by the size of the 
recovery and appeared to indicate that the law did not 
support that contention. [7a] The court concluded its opinion 
by stating that it found that reasonable compensation for 
lead counsel was a fee of $2,500 and that "in the totality of 
circumstances of this case it is not reasonable to award any 
other legal fees herein." [ 7a-8a] The court provided no 
explanation of how it arrived at a fee of $2,500.

It did not specify the rate or rates that it was using 
to award lead counsel for his time, the number of hours being 
awarded at those rates, or whether any hours were being 
disallowed. The court made no calculations in its opinion 
which showed how it arrived at this award.

3/ Counsel are employed by the NAACP Legal Defense and
Educational Fund, Inc.

9



The award was half of the "about $5,000" that the court 
noted that the government contended was the value of the
settlement. [6a] The effect of the award was to make a 
total monetary recovery of about $7,500, divided two-thirds 
for plaintiff and one-third for counsel. There is no indica­
tion in the court's opinion that it based its decision on 
this traditional contingency fee formula and it would appear 
in light of the court's apparent rejection of the govern­
ment's argument that the fee should bear a relationship to 
the recovery that it would not have relied on such a formula. 
There is, however, no basis given.

The court denied other counsel fees under the "totality 
of the circumstances". The only circumstances discussed by 
the court that could explain this total denial of fees was 
counsel's employment with a public interest organization.

D . The Litigation Below
As indicated in the procedural history above, this 

litigation took place in four stages revolving around (1) the 
administrative complaint, (2) the defendants' motion to 
dismiss in federal court, (3) the remedy determination and 
(4) the application for attorneys' fees. A brief review of 
the litigation that occurred during these four stages, dis­
cussing some of the issues raised therein, is necessary as 
background for this appeal.

10



After the agency's in-house investigation resulted 
in a rejection of her claim, plaintiff requested a hearing 
and retained counsel to represent her. Plaintiff's counsel 
was recommended to her by the Boston branch of the NAACP; 
Mr. Putnam's background and experience are reflected in his 
affidavit. [18a] With the effective assistance of her 
counsel, plaintiff was able to convince the complaints 
examiner and finally the agency that she had suffered discri­
mination which denied her equal employment opportunity. The 
relief, however, was inadequate relief.

Plaintiff therefore sued in federal court seeking fur­
ther relief. Defendants responded by moving the court to 
dismiss the suit or alternatively to grant them summary judg­
ment. Defendants argued that plaintiff was not entitled to 
any further relief and that the scope of the court's review 
was limited to determining whether the agency's decision was 
rationally based on the record. [40a-42a] The government 
relied upon a series of cases, chief among which was Hackley 
v . Johnson, 360 F.Supp. 1247 (D.D.C. 1973), that federal 
employees were not entitled to a trial d£ novo. [38a-40a] 
Defendants argued that plaintiff could not therefore supple­
ment, expand or go beyond the administrative record in the 
federal court and that on that record plaintiff had failed to 
show that she was discriminated against or entitled to any 
further relief.

11



Defeating defendants' motion was essential to staying 
in court. The law concerning the application of Title VII to 
federal employees was in the very beginning stages of devel­
opment. Plaintiff's counsel, therefore, consulted several 
attorneys affiliated with civil rights litigation organ­
izations and as a result, New York counsel agreed to join him 
in preparing a response to the government's motion. The 
background and experience of New York counsel are reflected 
in their affidavits. [ 126a, 133a, 139a]

Plaintiff's memorandum reviewed the facts of her case as 
developed below and presented four main arguments as to why 
the government's motion should be denied. [44a] First, 
plaintiff argued that dismissal or summary judgment were 
inappropriate since the facts when construed in plaintiff s 
favor, as they must be, stated a claim and showed that she 
was entitled to relief. Plaintiff outlined several material 
facts which were in dispute, one of which was the contradic­
tion in defendants' memorandum on whether a finding of dis­
crimination had been made. [50a—57a] Second, plaintiff 
reviewed Title VII law to show that the administrative deci­
sion understated the finding of discrimination because it did 
not apply correct Title VII principles in determining the 
agency's liability, in particular the complaints examiner had 
not shifted the burden of proof on to the agency after the 
appropriate showing of proof. [58a—63a] Under the circum­
stances, the court's review had to be broader than the

12



"rational basis" analysis urged by the government. Third, 
plaintiff argued her entitlement to a trial de novo as to 
fact finding and adjudication. In essence, plaintiff con­
tended that Congress did not intend federal employees to 
receive lesser rights in court than those given to private 
and state government employees and that Congress did not 
intend the 1972 amendments to be merely another proceeding 
under the Administrative Procedure Act. [64a-69a] Plaintiff 
argued that the administrative record could serve a useful 
function in the federal court proceedings, but should not be 
used to prevent a plaintiff from conducting discovery or 
putting on new evidence. [65a-66a] Finally, plaintiff 
discussed her entitlement to the full relief that Title VII 
provides for a victim of discrimination. [ 7Ca-74a] Plaintiff 
indicated that she wished to furnish the court at an appro­
priate time with a further memorandum on the question of 
remedy and attorneys' fees. [73a] At the same time, plain­
tiff filed an amendment and supplement to her complaint add­
ing a prayer for declaratory judgment on her entitlement to 
the relief sought.[75a]

Argument was held December 8, 1975. The government as 
movant proceeded first and during argument conceded that 
plaintiff had been a victim of discrimination. [81a] The 
government also informed the court that the United States 
Supreme Court had granted certiorar i on the trial de novo 
issue in Chandler v. Roudebush, 423 U.S.821, 46 L.Ed 2d 37

13



(Oct.6, 1975). The Court asked the parties to address the
question of whether it should withhold decision until the 
Supreme Court had ruled. The government responded affirma­
tively; plaintiff's counsel responded that in light of the 
government's concession that she had been discriminated 
against summary judgment in her favor would appear appro­
priate. The government in its memorandum had denied that 
plaintiff had suffered discrimination, which had therefore 
been a material issue in dispute, making summary judgment 
inappropriate. [41a, 53a]

The Court issued its March 19, 1975 memorandum before
Chandler was decided. The District Court held:

In view of the Government's concession that 
there was merit to the discrimination claim, 
no policy of Title VII of the Civil Rights 
Act can be advanced by conducting a c3e novo 
hearing on the merits.

On the present state of the record, the 
defendants have been found guilty of racial 
discrimination, and there remains for decision 
now only the question of what relief will make 
plaintiff whole for the wrongs concededly 
done. [81a-82a]
Thus this suit moved into its third stage - the remedy 

proceedings. This third stage resulted in a settlement at 
the end of November 1976. Twenty-three months earlier plain­
tiff's counsel had written the government inquiring about the 
possibility of settlement. Defendants' counsel replied on 
January 2, 1975:

14



Dear Mr. Putnam:
I am in receipt of your letter of December 24,

1974 in which you refer to the possibility of settling 
the case. I can think of no ground for settlement and 
must advise you that this case, in my opinion, must be 
litigated.

Very truly yours,
James N. Gabriel 
United States Attorney 
By William A. Brown

[167a] (emphasis added).
Around the beginning of October 1976 plaintiff's counsel 

attempted to set a date with the government's attorney for 
conducting further discovery on back pay and back benefits. 
Plaintiff's counsel succeeded in arranging a meeting on 
October 12, 1976 with the government's attorney to discuss
discovery and the possibility of settlement. At that meeting, 
defendants' counsel indicated that he would have Privacy Act 
objections to plaintiff reviewing any other emloyees' pay 
records and that he was opposed to holding depositions at 
that time. Plaintiff's suggestions of settlement were 
refused without counter offer. [147a]

Following this meeting, plaintiff's counsel devised a 
method for obtaining the necessary information which avoided 
the alleged Privacy Act problems and saved time compared to 
a fight over discovery and then the taking of discovery on 
the complexities of the federal pay system. Plaintiff pre­
pared a memorandum that set forth legal precedent for deter­
mining plaintiff's "rightful place" and developed several 
different constructive career ladders. The memorandum re­
quested the court to instruct the defendants to determine

15



the dates for the different appointments, for grade and in­
grade step increases and for salary raises, and based on 
this to calculate for each career ladder plaintiff's back 
pay for salary and overtime and her potential retirement 
benefits.[83a] At a conference on October 18, 1976, plain­
tiff presented her memorandum to the court which, in turn, 
instructed defendants to develop the information requested. 
The government furnished plaintiff with five charts that 
showed a range of back pay for the different career ladders 
from $3,516.80 to $8,452 for salary and for average overtime 
earnings of Logan Airport Immigration Inspectors of approxi­
mately $21,000 over the five years. [94a]

At the commencement of trial, the government indicated 
that it would stipulate to a judgment as set forth in the 
original complaint, namely a promotion to a G.S.7. [145a]. 
Plaintiff therefore amended her complaint to encompass the 
wider range of relief in contention. Following presentation 
of plaintiff's case, the parties agreed upon the settlement 
described above, promoting plaintiff to an Immigration 
Inspector's position, G.S.9/Step 3 with approximately $5,500 
in back pay. [97a] This was two grades higher than the 
government's offer to stipulate to a G.S.7 at the beginning 
of trial and carried with it $2,000 more in back pay.

The parties, recognizing that no settlement could be 
reached on attorneys fees, agreed to submit that question to 
the court. Plaintiff therefore moved the court for an award

16



of fees for the time spent on this litigation from the admin­
istrative process to its successful conclusion for her.

Counsel submitted affidavits. A summary of those affi­
davits shows the following breakdown of time:

1) Harold Putnam: 31 hours spent at the
administrative level, primarily in pre­
paring for and conducting the hearing; 
in federal court 39 hours spent up 
through argument on the motion to 
dismiss; 32.5 hours through trial and 
settlement. Total 102.5 hours.
[ 123a-125a]

2) James Gray: 39.7 hours spent on pre­
paring plaintiff's response to defend­
ants' motion to dismiss up through 
argument on said motion; 46.6 hours at 
the remedy stage, approximately half 
of which was spent on research and 
preparation of the memorandum on remedy;
10.3 hours were spent on the attorneys' 
fees motion and original memorandum.
Total 96.6 hours. [129a-132a]

3) Marilyn Holifield: 12.2 hours spent on 
the response to the motion to dismiss;
10.4 hours on the remedy proceedings.
Total 27.6 hours. [136a-138a]

4) Bill Lee: 16 hours spent on the response 
to the motion to dismiss; 1 hour at case 
conference regarding back pay and attor­
neys fees. Total 17 hours. [141a]

5) Michael Hoare: Attorney Putnam esti­
mated that Michael Hoare, another 
civil rights attorney, had spent 8 
hours reviewing the administrative 
record and providing assistance on 
the pleadings.[124a-125a]

The affidavits also showed costs of $75.00 and expenses of 
$167.00 and $189.50. [124a, 132a] As several of the affi­
davits point out, the time statements were conservative. 
[127a, 135a]

17



The court awarded lead counsel a fee of $2,500, denied 
other counsel fees and failed to award costs and expenses.

ARGUMENT

I
PLAINTIFF CLEARLY PREVAILED BELOW AND WAS 
ENTITLED TO REASONABLE ATTORNEYS' FEES

The District Court held that plaintiff was a prevailing 
party within the meaning of 42 U.S.C. §2000e-5(k) and was 
entitled to reasonable attorneys' fees. The Court relied on 
Parker v. Matthews, 411 F.Supp. 1059 (D.D.C. 1976), aff'd sub
nom Parker v. Califano, ____F.2d ____ , 14 EPD 1[7637 (D.C.
Cir. 1977), in arriving at this determination. In Parker, an 
individual federal employee brought suit after completing the 
administrative process and defendants, prior to answering the 
complaint, worked out a satisfactory settlement promoting 
plaintiff. The Parker court ruled that plaintiff had pre­
vailed and was entitled to her attorneys' fees.

In the instant case, the District Court was correct in 
deciding plaintiff was the prevailing party. The record is 
clear that at the administrative level plaintiff ultimately 
as a result of the hearing obtained a finding of discrimina­
tion, in district court she succeeded in getting defendants' 
motion to dismiss denied and in obtaining in effect summary 
judgment on her entitlement to an adequate remedy,and finally 
she obtained at the remedy proceedings a settlement that 
substantially improved her position. As a result of the

18



administrative and judicial proceedings, plaintiff escaped 
from the clerk's position where she had been trapped for 
twelve years and moved to the Immigration Inspector's job 
which she had been denied in 1972.

Defendants argued in their brief below that the value 
of the settlement was a little in excess of $5,000. [146a] 
The relief that plaintiff obtained, however, cannot be 
measured in money terms alone. See Copeland v. Usery,____
F. Supp.___ , 13 EPD 1(11395 (D.D.C. 1977). If one could place
a value on an employee with years of exemplary service 
finally being able to achieve a career goal, it would be 
high. How much is the vindication of rights that have been 
infringed by the denial of equal opportunity worth? At the 
remedy hearing, there was also testimony that the agency had 
improved its E.E.O. posture since plaintiff's administrative 
victory. As the court in Copeland noted, such benefits can­
not be measured solely in monetary terms. See, Fogg v. New 
England Telephone and Telegraph, 346 F.Supp.645 (D.N.H.1972).

In terms of the monetary benefits received, however, 
the record shows that plaintiff benefited far more than the 
$5,500 of back pay. First, having moved from a G.S.5 to a
G. S.9, she is receiving a difference in salary which by 1975 
rates was approximately $3,000 a year, exclusive of overtime. 
Second, after the administrative decision and during the 
pendency of defendants' motion to dismiss, plaintiff was

19



appointed to a G.S.7 position where she earned an additional 
$1,500 that was not reflected in the back pay award. Finally, 
plaintiff's future retirement benefits will be significantly 
higher.

After 37 years with the agency, she is now near the 
position that a white male with similar years of service 
would hold. As a matter of money as well as principle and 
dignity, plaintiff clearly prevailed.

II
THE COURT MISAPPLIED JOHNSON v. GEORGIA HIGHWAY 

EXPRESS, INC. IN ARRIVING AT ITS AWARD.
In analyzing plaintiff's application for attorneys' fees, 

the District Court properly looked to Johnson v. Georgia 
Highway Express, Inc., 488 F .2d 714 (5th Cir. 1974), for 
guidance. Johnson sets forth twelve factors which district 
courts should consider in determining a reasonable fee. While 
Johnson does not explain the exact interrelationship of these 
factors, the decision demonstrates that absent unusual fac­
tors the court should compute the fee based upon a reasonable

4/hourly rate applied to the time spent.— The Fifth Circuit 
reversed the district court because its judgment did "not 
elucidate the factors which contributed to the decision and 
upon which it was based. No correlation to the facts and

4/ In a recent opinion, the Fifth Circuit has indicated how 
a reasonable fee should be determined. See, Matter of First 
Colonial Corp. of America v.Baddock, 544 F.2d 1291, (5th Cir. 
1977). See also, Wolf v. Frank, 555 F.2d 1213, 1217 (1977).

20



figures submitted by the plaintiff is visible. (emphas is
added) 488 F.2d 717.

In the instant case, the District Court discussed three 
of the factors outlined in Johnson. It is unclear, however, 
how the court integrated these three factors in arriving at 
its decision. It would appear from the actual award that 
the court used Johnson as a basis for limiting the award 
rather than for determining a reasonable award. As in 
Johnson, "no correlation to the facts and figures submitted 
by the plaintiff is visible" in the instant judgment.
1. Time and Labor Required

Counsel spent over 200 hours in litigating this suit to 
a satisfactory result for plaintiff. A substantial amount of 
this time was spent in responding to the government's motion 
to dismiss. It was necessary to prevail on this motion in 
order to assure that plaintiff would not be foreclosed from 
obtaining the full relief to which she was entitled; she pre­
vailed and did obtain her remedy. The administrative hearing 
and the remedy proceedings accounted for the bulk of the re­
mainder of time expended.

The government never voluntarily moved towards resolving 
this matter to plaintiff's benefit. She obtained a favorable 
administrative decision only after a hearing where counsel 
represented her and then the relief was inadequate. The 
government moved to dismiss her complaint from court and 
sought to restrict the court's scope of review. In January

21



of 1975, defendants' counsel informed plaintiff's counsel
that he could think of no ground for settlement and that
he had to advise that in his opinion the case had to be
litigated - this was exactly what was done.

In Copeland v, Usery, supra, the court commented that:
The Government offered firm, persistent resist­
ance throughout the litigation and concessions 
developed only as it became apparent that there 
was little prospect of Government success. In­
deed, the Government moved to dismiss at the 
outset, and it opposed discovery.

The Court's comment is true for the instant litigation.
The District Court, however, devoted its entire analysis

of the time and labor factor to discussing discounting over­
lapping times for conferences between counsel. The court 
reasoned that a substantial discount attributable to time 
overlaps and duplication would not be unreasonable, but it 
did not specify how much of a discount and whether it would 
apply to all hours or just overlapping ones.

The court cited Johnson on this question. In Johnson,
however, the court stated:

If more than one attorney is involved, the 
possibility of duplication of effort along 
with the proper utilization of time should 
be scrutinized. The time of two or three 
lawyers in a courtroom or conference when 
one would do, may obviously be discounted. 
488 F.2d 717 (emphasis added)

Johnson, thus, 
the conference

requires the court to 
to determine whether

scrutinize the 
the number of

nature of 
attorneys

was necessary. The District Court made no such scrutiny.

22



Instead, it appears to have adopted a per se rule that 
conferences between counsel to discuss developments, strate­
gies and approaches are duplication of effort.

The court also cited on discounting Parker v. Matthews, 
supra, and Kiser v. Miller, 364 F.Supp. 1311 (D.D.C. 1973). 
In Parker, the court discounted the total fee award by 20% 
after finding "that an inordinate amount of time had been 
logged for telephone calls and conferences."(emphasis added) 
411 F. 2d 1067 . Of the 137 entries in the senior counsel's 
logs 87 were for telephone calls and conferences. Id. The 
court awarded attorneys' fees at $60 an hour for the senior 
counsel and at lesser rates for her associates before dis­
counting the total award 20% for the "inordinate" number of 
calls and conferences. The court then increased the award by 
a 25% incentive fee. Ic3. at 1068.

Kiser was not a Title VII case but involved recovery of 
pension and welfare benefits wrongfully withheld from retired 
mine workers by their union retirement fund. The court dis­
counted the $40 per hour awards by 35% because of numerous 
telephone calls and conferences between counsel, sizable time 
spent on attorneys' fees and discrepancies between counsel as 
to time spent in court. Three sets of counsel were involved 
representing the wronged miners and each had contingency fee 
arrangements with their clients. In reaching the decision to 
discount the court noted that half of the papers filed in 
the case dealt with attorneys' fees, no discovery or litiga­

23



tion was necessary, and the case required little legal 
research. The court awarded counsel for the class $62,048 
for 2065 hours and counsel for the other two groups $3,640 
each for approximately 150 hours. The court nullified the 
contingency fee agreements and ordered the defendant fund to 
pay counsel fees.

It would be impossible and inefficient for several
counsel to be engaged in litigation and not to have confer-

5/ences on the case.— Such conferences give an opportunity 
for exchange of ideas and refining of issues and strategies 
and are necessary for the division of labor. Discounting as 
done in Parker and Kiser and suggested in Johnson is only 
appropriate when the share of time spent on such conferences 
is inordinate. That was not true in the case at bar.
2. The Novelty and Difficulty of the Questions

The District Court dealt with this factor by stating 
that "[a]s the government's brief indicates, the questions 
were neither novel nor difficult." The government's brief, 
however, only makes the following statement on the issue: 
"The issues in this case certainly were not novel." [146a]

These proceedings began a year after Title VII was 
amended to include federal employees. At the time, very few 
federal employees had reached as far as an administrative

5/ Other counsel besides affiants participated in several 
of these conferences, providing advice and expertise. Affi­
davits were only submitted by those who made major commit­
ments of time to this litigation.

24



hearing and fewer still had obtained favorable administrative 
decisions.

The government in its motion to dismiss raised the issue 
of a trial de novo issue in order to preclude plaintiff from 
developing any further record in the district court and to 
prevent the court from exercising any judicial review broader 
than that provided by the Administrative Procedure Act. At 
the time that this issue was briefed, no court of appeals had 
yet addressed it. When the various courts of appeal did 
render their decisions during the period between briefing and 
oral argument in the instant case, they split on the resolu­
tion of the issue.

The Tenth Circuit and then the Ninth ruled against a 
trial de novo. Salone v . U .S ., 511 F.2d 902, (10th Cir. Feb. 
21, 1975); Chandler v. Johnson, 515 F.2d 251 (9th Cir. April 
25, 1975). The Third, Seventh and District of Columbia Cir­
cuits ruled that a federal employee has a right to a trial 
de novo. Sperling v . U. S , 515 F. 2d 465 (3rd Cir. April 18, 
1975); Caro v.Schultz, 521 F.2d 1084 (7th Cir. Sept. 3,1975); 
Hackley v. Roudebush, 520 F.2d 108 (D.C. Cir. Sept.29, 1975). 
The Eighth Circuit ruled in favor of an independent judicial 
determination on the merits and a qualified right to a trial 
de novo. Haire v. Calloway, 326 F .2d 245 (8th Cir. Nov. 17, 
1975).

The seminal case upon which defendants relied, as did 
many of the courts ruling against a trial d_e novo, was

25



Hackley v. Johnson, 360 F.Supp. 1247 (D.D.C. 1974), which
was subsequently reversed on appeal, sub nom. Hackley v . 
Roudebush, supra. Between briefing and argument in the in­
stant case the U.S. Supreme Court granted certiorari in the 
Ninth Circuit's Chandler decision. 423 U.S.821, 46 L.Ed.2d 37 
(Oct.6, 1975). Like the D.C. Circuit in Hackley, the Supreme 
Court in Chandler ultimately ruled in favor of the position 
taken by instant plaintiff in her brief in the District Court.
425 U.S. 840, 48 L.Ed.2d 416 (1976).

The District Court, however, did not have to address the 
trial de novo issue because the government at argument 
clearly conceded that discrimination had occurred. It had 
denied this in its memorandum at several points. With the 
government's concession, the Court saw that the only question 
that it needed to resolve was the remedy that plaintiff 
should receive.

The fashioning of a remedy that would correct a series 
of promotion denials by putting plaintiff in her rightful 
place also presented a unique problem. It required a recon­
struction of a federal career ladder with a determination of 
when each vacancy became available, when pay raises went 
into effect and when grade and in-grade step increases would 
occur. This was complicated by defendants' purported Privacy 
Act objections and unwillingness to schedule discovery. 
Plaintiff's memorandum on remedy took care of these problems 
of discovery and of law.

26



In opposing plaintiff's application for attorneys' fees, 
the government argued that the issues were not novel and that 
"there was no risk in taking the case since the hearing exa­
miner had already recommended a training and career develop­
ment program and, in fact, plaintiff had been promoted.
[ 146a-147a]

If the issues were as simple and clear as the government 
in effect argued, why then did it move to dismiss the action 
and then reject a settlement inquiry with the advice that 
litigation was mandatory? The government ultimately settled 
for more than that for which plaintiff originally prayed. If 
there were no novelty to the issues and no risk in the taking 
of the case, the government's actions must have been dilatory 
in purpose, necessitating unnecessary time and effort from 
opposing counsel. Under the circumstances, however, we 
submit rather that the issues were more novel and difficult 
than the government remembered them in its brief below.

Title VII only became applicable to federal employees 
in 1972. Because of the administrative process, it was some 
time before questions about its applicability and effect came 
before the courts. Many issues are still being resolved. 
Clearly at the time of this suit those that were not novel 
were few.

6/ The government's memorandum neglects the fact that the 
case was taken prior to the hearing and that plaintiff was 
only promoted after the hearing and after suit was filed.

27



3. Preclusion of Other Employment
The third and final Johnson guideline which the District

Court discussed in its opinion was the preclusion of other
employment. On this question, the District Court's treatment
was limited to the following statement:

Having spent an average of 34 hours per year for 
the past three years, Mr. Putnam does not appear 
to have suffered any substantial preclusion of 
employment. The other attorneys, however, were 
salaried employees of the NAACP. [7a]

While the court did not provide any further explanation as
to the significance it attached to this statement, its actual
award suggests that its analysis led it to reduce the amount
awarded lead counsel because he suffered no "substantial"
preclusion and to deny other counsel any fees because of
their employment with a public interest organization.

In Johnson, the court explained that preclusion of other
employment involved:

the dual consideration of otherwise available 
business which is foreclosed because of con­
flicts of interest which occur from the repre­
sentation, and the fact that once the employ­
ment is undertaken the attorney is not free to 
use the time spent on the client's behalf for 
other purposes.
488 F.2d 718 (emphasis added).
The Fifth Circuit appears to have accepted the Johnson 

district court's standard of 6 or 7 hours constituting a 
working day. 488 F.2d 717. By that standard, lead counsel 
spent over three weeks of time on this litigation and addi­
tional counsel collectively four weeks. The District Court 
in looking for a "substantial preclusion" applied a harsher

28



standard than the Fifth Circuit considered appropriate and 
appears to consider disparagingly the fact that counsel was 
not able to devote this substantial amount of time to other 
pursuits.

As to other counsel's employment with a public interest 
organization, this Court addressed that issue in Natural 
Resources Defense Council, Inc, v. Environmental Protection 
Agency, 484 F.2d 1331 (1973). In that case, the government 
argued that attorneys' fees for NRDC's counsel should be 
denied because of their employment with a public interest 
organization. This Court rejected the argument. 484 F .2d 
1338 , f. 7. Other courts of appeal, starting with the Fifth 
Circuit in Miller v. Amusement Enterprises, Inc., 426 F.2d 
534, 538-539 n.14 (1970), have resolved the issue in the same 
manner. See, Torres v. Sachs, 538 F.2d 10, 13 (2d Cir. 1976); 
Jordan v. Fusari, 496 F.2d 646, 649 (2nd Cir. 1974); Branden- 
burger v. Thompson, 494 F .2d 885, 889 (9th Cir.1974); Fairley 
v. Patterson, 493 F .2d 598, 606 (5th Cir. 1974); Lea v. Cone 
Mills Corp., 438 F.2d 86, 88 (4th Cir. 1971); Clark v. Ameri­
can Marine Corp., 320 F.Supp. 709 (E.D. La. 1970) aff'd per 
curiam 437 F.2d 959 (5th Cir. 1971).—

Counsel were precluded from spending their time on other 
civil rights matters and were not free to use their time for

]_/ See also, H.Rep. No. 94-1558, 94th Cong.2d Sess. p.8, 
f. 16, approving Torres and Fairley with regard to the 1976 
Civil Rights Attorneys' Fees Awards Act; this legislative 
history is instructive for Title VII, see Parker v. Califano, 
supra, 14 EPD at p.5137.

29



other purposes.
4. Relevant Factors Ignored by the Court

The Distrtict Court stated that it was mindful of the 
other guidelines set forth in Johnson in arriving at its 
award. Plaintiff submits, however, that the court ignored 
at least five of these guidelines which should have been con­
sidered in its determination: (a) awards in similar cases,
(b) results achieved, (c) contingent nature of the fee, (d) 
the reputation, experience and ability of counsel, and (e) 
customary fee.
(a) Awards in Similar Cases.

The Distrtict Court found that Parker v. Matthews, 
supra, was similar to the instant case. In Parker, the court 
awarded senior counsel fees at $60 per hour and her asso­
ciates at $30 and $35. With a 20% total discount for in­
ordinate telephone calls and conferences and a 25% incentive 
award, the court awarded a total fee of $8,770.36. Defend­
ants in Parker settled shortly after the complaint was filed.

In other federal Title VII cases, the courts have
8 /awarded counsel adequate fees.— In Smith v, Kleindienst,

8/ Outside of federal Title VII litigation, courts have 
awarded reasonable fees to prevailing Title VII plaintiffs. 
See, Rosenfeld v. Southern Pacific Co. , 519 F .2d 527 (9th 
Cir. 1975)(affirming award at effective rate of $74.00 per 
hour); Walker v. Ralston Purina Co., 409 F.Supp. 101 (M.D.
Ga. 1976)(awarding fees at $75, $50 and $35); Barth v. Bayou 
Candy, 379 F.Supp. 1201, 1204 (E.D.La. 1974)(fees awarded at 
$50 and $80); Wade v. Miss. Co-operative Extension Service, 
378 F.Supp. 1251 (N.D. Miss. 1974)(§1981 employment discrim­
ination case, fees awarded at $35 per hour); Clark v. Ameri­
can Marine Corp., 320 F.Supp. 709 (E.D.La. 1970) aff1d per 
curiam, 437 F.2d 959 ( 5th Cir. 1971) (fee of $35 per hour

(contd)
30



(D.D.C. Civil Action No. 1603-72), the plaintiff won summary 
judgment on her claim that she had been denied promotion from 
a G.S.12 to a G.S.14. 8 FEP 752 aff'd in part and revs'd in 
par t, sub nom Smith v. Levi, 527 F.2d 853 (D.C. Cir. 1975) 
(reversed as to interest on back pay). The district court 
awarded counsel fees at $75 per hour for senior counsel and 
$40 for junior counsel. The total award for 123 hours of 
senior counsel time and 224 hours of junior counsel time was 
$18,444.39 . 8 FEP 753. In Williams v. Saxbe, 12 EPD 1(11,130 
(D.D.C. 1976), the Court awarded lead counsel at rates of $30 
to $65 over five years, associate counsel at rates of $30 to 
$40 and law clerks for work performed in 1973 at $20 per 
hour. The award for the attorneys was increased by a 35% 
incentive award; the total award was $13,291.43.

Recently, in Chandler v. Roudebush, (C.D. Cal. 1977) 14 
EPD 1(7589 , the court awarded counsel interim fees of $55,185 
for time spent on litigating the trial d£ novo question 
through the Supreme Court where plaintiff prevailed. Fees

8/ (contd. )
awarded); Davis v. County of Los Angeles, 8 EPD 1(9444 (C.D. 
Cal. 1974) (fees based at $60, $55 and $35 and then modified 
upward).In other civil rights actions, the courts have awarded 
reasonable fees. See, Brown v. Culpepper, 559 F.2d 274 (5th 
Cir. 1977)(jury composition case where fees awarded at $65 
and $75 per hour); Oliver v. Kalamazoo Board of Educ., 73 
FRD 30 , 44(W .D . Mich. 1976 )(school desegregation case where 
fees awarded at $100, $75, and $35-$40 per hour); Schwann v . 
Charlotte-Mecklenburq Board of Educ., 66 FRD 483 (W.D.N.C. 
1975)(school desegregation case, fees awarded at average of 
$65); Stanford Daily v. Zurcher, 64 FRD 680 (N.D.Cal. 1974) 
(fees awarded at $50 per hour in search and seizure case).

31



were awarded even though plaintiff had not yet obtained any 
determination on the merits of her claim.
(b) Results Achieved.

As Section I above demonstrates the results of this 
litigation have brought substantial benefits to plaintiff in 
terms of vindication, dignity, job satisfaction and economic 
position. The agency has also benefitted by having its poor 
equal employment opportunity record brought to light and 
hopefully into compliance. See, Parham v. Southwestern Bell 
Telephone, 433 F.2d 421 (8th Cir. 1970); Fogg v. New England 
Telephone and Telegraph Co., supra.
(c) Contingent Nature of Fee.

Plaintiff's counsel litigated this action and lead coun­
sel the administrative hearing on the basis that no attor­
neys' fees would be paid by plaintiff but would be recovered 
from defendants according to 42 U.S.C. §2000e-5(k) if plain­
tiff prevailed. [157a] Proof in individual employment discri­
mination actions is difficult and individual actions are fre­
quently lost.
(d) Experience, Reputation and Ability.

The court made no reference to this criterion. As the 
affidavits show, lead counsel has long experience in govern­
ment and in the area of civil rights; other counsel are em­
ployed by a civil rights litigating organization and have

32



specialized in this area of the law.—'
(e) Customary Fee

The district court awarded lead counsel at a fee of 
approximately $25.00 per hour. In contrast to this award, 
the Fifth Circuit in Johnson noted that the court's award of 
between $28.57 and $33.33 per hour did not match the local 
minimum fee schedule which should be taken into considera­
tion.— ^ 488 F . 2d 717. In Baxter v. Savannah Sugar Refin­
ing Corp., 459 F.2d 437 (5th Cir. 1974), the court indicated 
that an award of $22.50 per hour was low. 459 F .2d 445. In 
Williams v. Saxbe, supra, the court awarded fees for law 
clerks' work in 1973 at $20.00 per hour.

The Massachusetts Bar Association reported a study that 
showed that in 1970 the average hourly rate in Massachusetts 
was $41.00 and the median rate $36.00. Massachusetts Bar 
Association, Economic Survey (1970),p.28. The District Court 
gave no consideration to what the customary rate should be in 
Massachusetts during the period of this litigation.

9/ Mr. Lee who spent 16 of his 17 hours on the response to 
defendants' motion to dismiss subsequently assisted in 
preparing amicus briefs in Hackley v. Roudebush, supra, in 
the D.C. circuit and Chandler v. Roudebush, supra, in the 
Supreme Court.
10/ The Fifth Circuit in a recent stockholders derivative 
action, Wolf v. Frank, supra, found under the circumstances 
of the case an award of $250 per hour for in court time not 
unreasonable and increased the regular out-of-court hourly 
rates of $100 and $75 by 33%. 555 F.2d 1217-1218.

33



Ill
THE DISTRICT COURT'S DENIAL OF REASONABLE 
ATTORNEYS' FEES DEFEATS THE PURPOSE OF THE

STATUTE

In 1968, the Supreme Court in Newman v. Piqqie Park, 
390 U.S. 400, 19 L.Ed 2d 1263, set forth the rationale for
awarding successful plaintiffs in civil rights actions attor­
neys' fees. The Court stated:

...If successful plaintiffs were routinely forced 
to bear their own attorney's fees, few aggrieved 
individuals would be in a position to advance the 
public interest by invoking the injunctive powers 
of the federal courts. Congress, therefore, enacted 
the provision for counsel fees not simply to penalize 
litigants . . . but . . . to encourage individuals
injured by racial discrimination to seek judicial 
relief. . .
390 U.S. 402, 19 L.Ed.2d 1265-1266.(emphasis added)

In Albermarle Paper Co. v. Moody, 422 U.S. 405, 45 L.Ed 2d
280 (1975) the Court noted that this "private attorney
general" standard of Piggie Park applied to Title VII's 
statutory provision for attorneys' fees. Thus, the public 
interest in having injunctive actions brought under Title 
VII to eradicate discriminatory employment practices could 
be vindicated. 422 U.S. 415, 45 L.Ed 2d 295.

In amending Title VII to include federal employees, 
Congress specifically made the provisions of 42 U.S.C.§2000e 
-5(k) applicable. 42 U.S.C. §2000e-16(d ).

The need for assuring that private attorney generals 
will represent victims of discrimination is necessarily great 
when the public attorney general represents the party oppos­

34



ing the request for relief. When the government offers firm 
persistent resistance throughout the litigation as in Cope­
land v. Usery, supra, and the instant case, plaintiff's coun­
sel must offer vigorous representation in striving to pre-

In enacting the 1976 Civil Rights Attorneys' Fees Awards 
Act, P.L. 94-559 amending 42 U.S.C. §1988, the Senate Com­
mittee expressed the purpose behind the new act and the 
earlier statutory attorneys' fees provisions:

It is intended that the amount of fees awarded 
under §2278 be governed by the same standards 
which prevail in other types of equally complex 
Federal litigation, such as anti-trust cases, 
and not to be reduced because the rights involved 
may be non-pecuniary in nature. The appropriate 
standards, see Johnson v. Georgia Highway Express,
488 F .2d 714 (5th Cir.1974), are correctly applied 
in [cases omitted]. These cases have resulted in 
fees which are adequate to attract competent coun­
sel, but which do not provide windfalls to attor­
neys. In computing the fee, counsel for prevail­
ing parties should be paid for all time reasonably 
expended on a matter.

S. Rep. No. 94-1011, 94th Cong., 2nd Sess.6 (1976). The 
award in the instant case fails to provide adequate compen­
sation for the time and labor reasonably expended by counsel 
in obtaining favorable results for their client.

11/ Attached to this brief is a recent memorandum by the 
Attorney General regarding federal Title VII litigation. 
In the memorandum U.S. Attorneys and Agency General Counsel 
are advised that the Government, while continuing to vigor­
ously defend on the merits claims of discrimination where 
appropriate, will no longer take any positions that federal 
employees do not have the same substantive and procedural 
r ights.

35



The Court's award effectively denied plaintiff a 
reasonable fee in light of the time and labor required and 
the other standards announced in Johnson v. Georgia Highway 
Express, Inc. Such a denial frustrates the purpose of the 
1972 Amendments and the public policy behind them. In Hall 
v. Cole, 412 U.S.l, 36 L.Ed.2d 702 (1973), the Supreme Court 
upheld the award of attorneys' fees in a Labor-Management 
Reporting and Disclosure Act case. The Court quoted with 
approval the lowerd court's opinion in which the Second 
Circuit stated:

[N]ot to award counsel fees in cases such 
as this would be tantamount to repealing 
the Act itself by frustrating its basic 
purpose. It is difficult for individual 
members of labor unions to stand up and 
fight those who are in charge. The latter 
have the treasury of the union at their 
command and the paid union counsel at their 
beck and call while the member is on his 
own. . . .An individual union member could 
not carry such a heavy financial burden.
Without counsel fees the grant of federal 
jurisdiction is but a gesture for few 
union members could avail themselves of it.
462 F .2d, at 780-781.

412 U.S.13, 36 L.Ed 2d 712. Without the assurance of reason­
able attorneys' fees for the prosecution of Title VII actions, 
federal employees who feel themselves the victims of employ­
ment discrimination may find themselves on their own against 
defendants with the resources of the government at their beck 
and call. See, Parker v. Califano, supra. 14 EPD at p.5131.

36



IV
PLAINTIFF IS ENTITLED TO HER COSTS AND EXPENSES

The District Court made no mention of plaintiff's 
request for her costs and expenses in its opinion. As the 
prevailing party, plaintiff was entitled to recover these 
costs. The trial court erred in failing to award them.

V
CONCLUSION

For the foregoing reasons, plaintiff-appellant respect­
fully prays that the order of the District Court denying her 
reasonable attorneys' fees be reversed and this cause remand­
ed to the District Court for an adequate award. Plaintiff- 
appellant further prays that this Court grant her the costs 
incurred in connection with this appeal including reasonable 
attorneys' fees.

Respectfully submitted,

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
BILL LANN LEE 
JAMES C. GRAY, JR.

10 Columbus Circle 
Suite 2030
New York, N.Y. 10019 

Counsel for Plaintiff-Appellees

37



MEMORANDUM FOR UNITED STATES ATTORNEYS 
AND AGENCY GENERAL COUNSELS

Re: Title VII Litigation

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

Congress, in amending Title VII, has conferred upon Federal 
employees and applicants the same substantive right to be free 
from discrimination on the basis of race, color, sex, religion, 
and national origin, and the same procedural rights to judicial 
enforcement as it has conferred upon employees and applicants 
in private industry and in state and local governments 
Mg5ton-V - .'Hancari,, 417 U.5. 535 (1974); Chandler v. Roudebush,425 U..S. 840 (19 76) . And, as a matter of policy, the Federal' 
Government should be willing to assume for its own agencies no 
lesser obligations with respect to equal employment opportunities 
than those it seeks to impose upon private and state and local government employers.'

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



2

criteria of Rule 23 of the Federal Rules of Civil Procedure, 
they are also entitled to the same class rights as are 
private sector employees. Albemarle Paper Co. v. Moody,
422 U.S. 405, 414 (1975). Further, the* Department or 
Justice has acquiesced in the recent rulings of the ■
Fifth and Sixth Circuit Courts of Appeals that it is' 
unnecessary for unnamed class members to exhaust their 
administrative remedies as a prerequisite to class 
membership. Eastland v^ TVA, 553 F.2d 364 (5th Cir. 1977);
Williams v. TVA, ___F.2d (6th Cir. 1977). Consequently,
we will no longer maintain that each class member in a 
Title VII suit must have exhausted his or her administrative 
remedy.

In a similar vein, the Department will not urge 
arguments that rely upon the unique role of the Federal 
Government. For example, the Department recognizes that 
the same kinds of relief should be available against the 
Federal Government as courts have found appropriate in 
private sector cases, including imposition of affirmative 
action plans., back pay and attorney's fees. See Copeland 
v. Usery, 13 EPD 1111,434 (D.D.C. 1976) ; Day v. Mathews,
3TJ0 F.2d 1083 (D.C. Cir. 1976) ; Sperling v. United States,
515 F.2d 465 (3d Cir. 1975). Thus, wnile the Department 
might oppose particular remedies in a given case, it will 
not urge that different standards be applied in cases against 
the Federal Government than are applied in other cases.

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



3

The policy sec forth above does not reflect, and should 
not be interpreted as reflecting/ any unwillingness on the 
part of the Department to vigorously defend, on thê  merits, 
claims of discrimination against Federal agencies where 
appropriate. It reflects only a concern that enforcement of 
the equal opportunity laws as to all employees be uniform 
and consistent.

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

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

GRIFFIN B. BELL

August 31, 1977

DOJ-I977-09



CERTIFICATE OF SERVICE

I certify that a copy of the 
Plaintiff-Appellant was served by 
counsel for defendants-appellees, 
Assistant United States Attorney, 
United States Post Office and Cour 
Massachusetts 02109.

foregoing Brief 
first class mail 
William A. Brown 
Civil Division, 
thouse Building,

for
upon

/

1107
Boston /

This 5th day of November, 1977.

James C. Gray, Jr.