Cotton v. Scotland Neck City Board of Education Brief for Petitioners

    N o. 76-1383

Jit tk Imjsrme (fmttf #f Jfte 1'nM ̂ fatcs
O otobeb  T e r m , 1977

C h r is t ia n s b u r g  G a r m e n t  C o m p a n y , p e t it io n e r

v.
E q u a l  E m p l o y m e n t  O p p o r t u n it y  C o m m is s io n

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT 
OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF FOR THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

W A D E  H. M eCREE, JR .,
Solicitor General. 

L A W R E N C E  G. W A L L A C E ,
Deputy Solicitor General, 

TH O M A S S. M A R T IN ,
Assistant to the Solicitor General,

Department of Justice, 
Washington, D.C., 20530.

A B N E R  W . SIB A L ,
General Counsel,

JOSEPH T. EDDINS,
Associate General Counsel,

B E A T R IC E  ROSENBERG,
Assistant General Counsel,

W IL L IA M  H. NG,
Attorney,

Equal Employment Opportunity Commission,
Washington, D JI., 2050$.



I N D E X

Pass

Opinions below______________________________  1
Jurisdiction_________________________________  1
Question presented___________________________
Statute involved______________________________
Statement___________________________________  2
Summary of argument______________________  5
Argument:

The district court properly exercised its 
discretion in declining to award attor­
ney’s fees to a prevailing defendant in 
good faith by the Equal Employment Op­
portunity Commission___________________ 9

A. Section 706 (k) requires a district
court to exercise its discretion 
in light of the purposes of . Title 
V II and the legislative history 
of the fee award statute in 
order to determine whether 
a particular prevailing party 
should be awarded attorney’s 
fees ________________________  9

B. The award of fees to successful
plaintiffs effectuates the pri­
mary purpose of Section 706 
(k) to provide support for 
private attorneys general vin­
dicating the Title V II prohibi­
tion against employment dis­
crimination ---------- ---------------  13

247 - 347— 77----------- 1
(I)

to
 t

o



II

Argument—Continued
C. The award of fees to successful 

defendants when litigation has 
been initiated in bad faith ef­
fectuates Section 706(h)’s pur­
pose to discourage frivolous Page.
Title V II litigation_________  16

1). The alternative standards pro­
posed by petitioner and amici 
are inconsistent with the legis­
lative history and purposes of 
Title V II  and with the sub­
sequent explicit approval by 
Congress of the good faith
standard _____________ ______  23

Conclusion__________________________________  31

CITATIONS
Cases:

Adams v. Carlson, 521 F. 2d 168__________  21
Albemarle Paper Co. v. Moody, 422 U.S.

405 ----------------------------------------------- 5, 6,11,15
Alyeska Pipeline Service Co. v. Wilderness

Society, 421 U.S. 240___ _________ 5,10,12, 26
Bolton v. Murray Envelope Corp., 553

F. 2d 881--------------------------------------------- 18,19
Byram Concretanks, Inc. v. Warrent Con­

crete Products Company of New Jersey,
374 F. 2d 649_________1_____________ _ 22

Carrion v. Yeshiva University, 535 F. 2d
722 _----------------------------- ---------- 8,15,18, 20, 21

Comstock v. Group of Institutional Inves­
tors, 335 U.S. 211_____________________  2ft

Equal Employment Opportunity Commis­
sion v. Children’s Hospital of Pitts-



I l l

Cases—continued
burgh, 556 F. 2d 222---------—-------------- - -  2ft

Equal Employment Opportunity Commis­
sion v. The Bailey Co., Inc., C.A. 6, No.
76-1045, decided September 20, 1977-----  18’

Equal Employment Opportunity Commis­
sion y . MacMillan Bloedel Containers,
Inc., 503 F. 2d 1086______:--------------------  19

F. D. Co. v. Industrial Lumber Co., 417
U.S. 116______________________________  10

Grubbs v. Buts, 548 F. 2d 973--------- 7,14,16, 21
Hall v. Cole, 412 U.S. 1---------------------------- 21
Hecht Co. y . Bowles, 321 U.S. 321________ 5,11
Huecker v. Milburn, 558 F. 2d 1241----------- 21
Johnson v. Georgia Highway Express, Inc.,

488 F. 2d 714___________________________ 7,14
Johnson v. Railivay Express Agency, 421

U.S. 454______________________________  26
Missouri, Kansas, Texas Railway Company

of Texas y . Cade, 233 U.S. 642--------------  23
Nicholas Kutska v. California State Col­

lege, C.A. 3, No. 76-1958, decided July 15,
1977 __________________________________  21

Newman v. Piggie Park Enterprises, 390
U.S. 400— 1_________ 6,11,12,13,14

Nort'hcross v. Memphis Board of Educa­
tion, 412 U.S. 427_____________________ 11

Occidental Life Insurance Co. v. Equal 
Employment Opportunity Cornmission,
No. 76-99, decided June 20, 1977___ 9,24,25

Parham v. Southwestern Bell Telephone
Co., 433 F. 2d 421______________________  14

Parker y . Califano, C.A.D.C., No. 76-1416, 
decided June 30, 1977--------------------------  14,30



IV

Cases—continued
Red Lion Broadcasting Co. v. Federal Com- Page

munications Commission, 395 II.S. 3657_ 30
Richardson v. Hotel Corp. of America, 332

F. Supp. 519, affirmed, 468 F. 2d 951__  19
Robinson v. Lorillard Corporation, 444 F.

2d 791, certiorari dismissed, 404 U.S.
1006 __________________________________ 14

Rosenfeld v. Southern Pacific Company,
519 F. 2d 275___________ 1__________ 1  14-15

Runyon v. McCrary, 427 II.S. 160_____________ 21
Trafficante v. Metropolitan Life Insurance

Co., 409 U.S. 205______________________  13
United States v. Allegheny-Ludlam Indus­

tries, Inc., 558 F. 2d 742______________  18
United States Steel Corporation v. United,

States, 519 F. 2d 359___________ 7, 8,15,17,23
Van Hoomissen v. Xerox Corp., 503 F. 2d

1131 _________________________________  18
Wright v. Stone Container Corp., 524 F.

2d 1058__________   19
Statutes:

Civil Rights Act of 1964, 78 Stat. 243, as
amended, 42 U.S.C. (and Supp. V )
2000a et seq.:

Title II,' Section 204(b), 42 U.S.C.
2000a-3(b) ____________________  6,13

Title III, 78 Stat. 246______________  29
Title IY, 78 Stat. 246_______________  29
Title VII, 78 Stat. 253, as amended, 42 

U.S.C. (Supp. Y ) 2000e cl seq.:
Section 701(b), 42 U.S.C. 2000e 

(b) --------------------------------------- 25
Section 703(a), 42 U.S.C. 2000e- 

2 fat _______________________



V

Statutes—Continued
Section 706(f)(1 ), 42 U.S.C. Psga

(Supp. V ) 2000e-5(f)(1) - 3
Section 706 (k), 42 U.S.C. 2000e-

5(k) _________________________passim
Civil Rights Attorney’s Pees Act of 1976,

Pul>. L. 94-559, 90 Stat. 2641, as 
amended, 42 U.S.C. (Supp. V ) 1988—  26

Clayton Act, 38 Stat, 731, 15 U.S.C. 15—  10, 22 
Clean Air Act Amendments of 1970, 84 

Stat. 1706, as added, 42 U.S.C. 1857h-
2(d) ____________________________ 11

Equal Employment Opportunity Act of
1972, Section 14, 86 Stat. 113---------------  3, 20

Pair Housing Act of 1968, 82 Stat. 88, 42
U.S.C. 33612(c)________________________ 11

Pair Labor Standards Act of 1938, 52 Stat.
1069, as amended, 29 U.S.C. 216(b)---------10,11

Federal Water Pollution Prevention and 
Control Act of 1972, 86 Stat. 888, as
added, 33 U.S.C. 1365(d)______________  11

Merchant Marine Act of 1936, 49 Stat.
2015, 46 U.S.C. 1227___________________  10

Noise Control Act of 1972, 86 Stat, 1244, 42
U.S.C. 4911 (Supp. TV, 1974)_________  11

Packers and Stockyards Act, 42 Stat. 165,
U.S.C. 210(f)_________________________ 11

Privacy Act, 5 U.S.C. (Supp. V, 552a(g)
(B ) __________________________________  11

Securities Exchange Act of 1934, 48 Stat.
889, 15 U.S.C. 78i(e)_________________  11

15 U.S.C. 78r(a)___________________  H
; Trust Indenture Act of 1939, 53 Stat. 1171,
| as added, 15 U.S.C. 77000(e)__________  11



VI

Statutes—Continued
Truth in Lending Act, 82 Stat. 157, 15 pag8

U.S.C. 1640(a)_____________   10
62 Stat. 973— ______________________ 29
80 Stat. 303, amending, 28 U.S.C.

2412______________________________  29
31 U.S.C. 484_______________________  25
42 U.S.C. 1981______________________  26

Miscellaneous:
38 Comp. Gen. 343 (1958)________________  25
46 Comp. Gen. 98 (1966)________________  24
47 Comp. Gen. 70 (1967)________________  25
110 Cong. Rec. (1964) :

P. 6534______________________________ 17, 29
P. 11933_____________________________  29
P. 12724___________________________6, 14, 29
P. 13668_____________________________  17
P. 14214_____________________________  7,17

122 Cong. Rec. S17050 (daily ed., Septem­
ber 29, 1976)___________________________ 29

H.R. Rep. No. 914, 88th Cong., 1st. Sess.
(1963)________________________________  29

H.R. Rep. No. 94-1558, 94th Cong., 2d.
Sess. (1976)____________________  9, 27, 29, 30

Legislative History of the Equal Employ­
ment Opportunity Commission Act of 
1972, Prepared by the Subcommittee 
on Labor of the Senate Committee on
Labor and Public Welfare, 92d Cong.,
2d Sess. (Committee Print, 1972______ 20

S. Rep. No. 92-415, 92d Cong., 1st Sess.
(1971) _______________________________ 14, 25

S. Rep. No. 92-681, 92d Cong., 2d Sess.
(1972) ---------------------------- ------------------23, 25

S. Rep. No. 94-1011, 94th Cong., 2d Sess.
(1976) -------------------------------------------  9, 27, 30



J# iU«̂piiw firnirt «f ®iM t̂afes
O ctober  T e r m ,  1977

No. 76-1383

C h r is t ia n s b u r g  G a r m e n t  C o m p a n y , p e t it io n e r

v.
E q u a l  E m p l o y m e n t  O p p o r t u n it y  C o m m is s io n

■ON WRIT OF CERTIORARI TO TIIE UNITED STATES COURT 
OF APPEALS FOR THE FOURTH CIRCUIT

BRIEE e o r  t h e

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

O PIN IO N S BELOW

The opinion of the court of appeals (Pet. App. 4-A 
to 13-A) is reported at 550 P. 2d 949. The district 
court’s order denying the award of attorney’s fees 
(Pet. App. 1-A to 3-A) is not officially reported, but 
is unofficially reported at 12 PEP Cases 533. The 
order of the district court granting summary judg­
ment is reported at 376 F. Supp. 1067.

JU R ISD IC T IO N

The judgment of the court of appeals was entered 
on January 12, 1977. The petition for a writ of

(i)



2

certiorari was filed on April 9, 1977, and was granted 
on June 20, 1977. The jurisdicton of this Court rests 
on 28 U.S.C.- 1254(1).

QUESTION PRE SEN TED

Whether the district court abused its discretion 
under Title Y II  in declining to award attorneys’ fees 
to a prevailing defendant in an enforcement action 
brought in good faith by the Equal Employment 
Opportunity Commission.

ST A TU T E  IN V O LV E D

Section 706 (k) of Title Y II, Civil Rights Act o f 
1964, 78 Stat. 259, 42 U.S.C. 2000e-5(k), provides:

In any action or proceeding under this title 
the court, in its discretion, may allow the pre­
vailing party, other than the Commission or the 
United States, a reasonable attorney’s fee as 
part of the costs, and the Commission and the 
United States shall be liable for costs the same 
as a private person.

ST A TE M E N T

In 1968 Rosa Helm filed a charge with the Equal 
Employment Opportunity Commission alleging racial 
discrimination by Christiansburg Garment Company 
with respect to a layoff.1 After an investigation and 
a reasonable cause determination, the Commission 
initiated conciliation. Conciliation failed and the Com­
mission notified Ms. Helm on July 1, 1970, of her

1 The facts o f this case are set forth in the opinion o f the court 
of appeals (Pet. App. 5-A  to 6 -A ).



3

right to file suit in federal court. Ms. Helm, how­
ever, did not exercise her option to initiate litigation.

On March 24, 1972, the 1972 amendments to the 
Civil Rights Act of 1964 became effective, authoriz­
ing the Commission to sue in its own name to secure 
compliance with the Act. Section 14 of the Equal Em­
ployment Opportunity Act of 1972, 86 Stat. 113, made 
the Commission’s authority applicable to “ charges 
pending with the Commission on the date of enactment 
of this Act and all charges thereafter.” Basing its 
jurisdiction on the Rosa Helm charge, the Commission 
filed suit on January 25, 1975, in the Western District 
of Virginia against Christiansburg Garment Company 
alleging that the company had discriminated, and con­
tinued to discriminate, against black employees in 
violation of Section 703(a) of Title V II, 78 Stat. 255, 
42 H.S.C. 2000e-2(a). Petitioner moved for summary 
judgment claiming that the suit was barred by the 
180-day provision in Section 706(f)(1), as amended, 
42 U.S.C. (Supp. V ) 2000e-5(f) (1), that the suit was 
barred by the two-year state statute of limitations for 
personal injuries, and that the charge on which the 
suit was based was not “pending” before the Com­
mission when the 1972 Amendments to Title V II  au­
thorizing Commission litigation took effect (Pet. App. 
1-A to 2-A ). The district court rejected the first two 
arguments but granted defendant’s motion for sum­
mary judgment on the third issue. The Commission 
did not appeal.

On February 1, 1975, more than nine months after 
the district court’s order granting summary judgment,

247-347— 77--------2



4

Christiansburg filed a petition for an award of attor­
ney’s fees pursuant to Section 706 (k) of Title V II. On 
July 28, 1975, the district court denied the company’s 
petition, stating (Pet. App. 2-A  to 3--A) :

Although petitioner prevailed on its motion 
for summary judgment, the Commission’s ac­
tion in bringing the suit cannot be character­
ized as unreasonable or meritless. Of the three 
grounds raised by petitioner in support of its 
motion for summary judgment, this court ruled 
in favor of the Commission on two of the 
grounds. But more importantly, the basis upon 
which petitioner prevailed was an issue of first 
impression requiring judicial resolution. The 
Commission’s statutory interpretation of § 14 
of the 1972 amendments was not frivolous, and 
the court has no doubt this suit represented a 
good faith effort by the Commission to vigor­
ously pursue the duties assigned to it by Con­
gress under Title V II. In such circumstances 
the court does not believe that an award of 
attorney’s fees against the Commission is jus­
tified.

On appeal, the court of appeals, with one judge 
dissenting, upheld the district court’s denial of at­
torney’s fees (Pet. App. 4-A  to 13-A). Recognizing 
that the “policy considerations which support the 
award of fees to a prevailing plaintiff are not present 
in the case of a prevailing defendant” (id. at 7-A ), 
the court of appeals approved the standard which had 
been applied by the district court—that an award of 
attorney’s fes against the Commission would be ap­
propriate only when the Commission acted in “ bad 
faith” (icl. at 9-A).



5

S U M M A R Y  OF A R G U M E N T

1. Normally attorney’s fees are not awarded to suc­
cessful parties to a lawsuit; prevailing defendants like 
prevailing plaintiffs must ordinarily absorb their at­
torney’s fee costs. Alyeska Pipeline Service Co. v. 
Wilderness Society, 421 U.S. 240. Congress has pro­
vided limited exceptions to this so-called American 
rule, utilizing statutes that frequently require the 
exercise of discretion by the district court in deciding 
whether to shift the normal fee burdens. Section 
706(k), 42 U.S.C. 2000e-5(k), which provides that “ the 
court, in it discretion, may allow the prevailing party 
* * * a reasonable attorney’s fee,”  is by its terms one 
such permissive grant of statutory authority to award 
fees in the discretion of the district court. The con­
gressional choice of permissive and discretionary 
language indicates that the statute does not require a 
mechanical award of fees in all cases to all prevailing 
parties, but mandates instead that the court exercise 
judgment in determining which prevailing parties in. 
which circumstances should obtain a fee award.

The authority of the district, courts under statutes 
requiring such use of discretion must be exercised with 
close reference to the goals of the particular legisla­
tive scheme. Albemarle Paper Co. v. Moody, 422 U.S. 
405, 416; Hecht Co. v. Bowles, 321 U.S. 321. The “ cir­
cumstances under which attorney’s fees are to be 
awarded and the range of discretion of the courts in 
making those awards are matters for Congress to 
determine.” Alyeska Pipeline Service Co. v. Wilder­
ness Society, supra, 421 U.S. at 262. In reviewing fee



6

award standards under fee provisions worded iden­
tically to Section 706 (k), this Court has therefore 
looked to the pertinent legislative history and the 
functions of the fee award in implementing the larger 
-goals of the statutory scheme. See Newman v. Piggie 
Park Enterprises, 390 U.S. 400. The question is not 
one of abstract fairness, or of the generally equitable 
distribution of litigation burdens, but more precisely 
whether the fee standard “properly effectuates the 
purposes of the counsel-fee provision”  {id, at 401).

2. In Newman v. Piggie Park Enterprises, supra, 
this Court recognized that x>rivate litigation is a cru­
cial element in the congressional scheme for enforce­
ment of the civil rights laws. Reviewing standards 
for a fee award under the pertinent provision of Title 
I I  of the Civil Rights Act of 1964, 78 Stat. 244 (42 
U.S.C. 2000a-3(b)) which the language of Section 706 
(k) exactly tracks, this Court concluded that the pri­
mary purpose of the statute in encouraging enforce­
ment by “private attorneys general” required that 
prevailing plaintiffs “ should ordinarily recover an 
attorney’s fee, unless special circumstances would 
render an award unjust” (390 U.S. at 402). While 
the legislative history of Section 706 (k) is sparse, it 
indicates that the role of that Section in Title V II 
of the Civil Rights Act was not intended to be differ­
ent from the function of the identical fee provisions 
in Title II  to support the efforts of private attorneys 
general by “mak[ing] it easier for a plaintiff of lim­
ited means to bring a meritorious suit” (110 Cong. 
Rec. 12724 (1964). See Albemarle Paper Co. v. Moody,



7

422 U.S. 405, 415; Johnson v. Georgia Highway Ex­
press, Inc., 488 P. 2d 714, 716 (C.A. 5).

Petitioners and amici argue that under Newman, 
fees should ordinarily be awarded to prevailing de­
fendants. But this Court in Newman did not purport 
to establish a standard applicable to both plaintiffs 
and defendants and the rationale of Newman simply 
does not apply to awards to defendants; the ‘'prevail­
ing defendant seeking an attorney’s fee does not 
appear before the court cloaked in a mantle of 
public interest.” United States Steel Corporation v. 
United States, 519 P. 2d 359, 364 (C.A. 3) . A success­
ful defendant does not act as a “ private attorney 
general,” and does not vindicate the Title Y II  policy 
prohibiting employment discrimination. As the court 
of appeals stated, the congressional policy considera­
tions which suport an award of fees to a prevailing 
plaintiff “ are not present in the case of a prevailing 
defendant”  (Pet. App. 7-A).

3. Since Congress plainly intended that fee awards 
be available to defendants, the rationale for such 
awards must come from the second purpose of the 
Section 706 (k) authorization, which, as the legislative 
history explicitly reveals was “ to discourage frivolous 
suits.” 110 Cong. Ree. 14214 (1964); see Grubbs v. 
Butz, 548 P. 2d 973, 975 (C.A.D.C.). In order to serve 
this statutory goal of penalizing frivolous litigation 
without chilling the efforts o f private attorneys gen­
eral, the courts have applied a “good faith” standard 
under which fees are awarded to a defendant “not rou­
tinely, not simply because he succeeds, but only where



8

the action brought is found to be unreasonable, frivo­
lous, meritless or vexatious.” Carrion v. Yeshiva Uni­
versity, 535 F. 2d 722, 727 (C.A. 2). The same standard 
has been applied to fee requests by successful Title 
V II defendants whether the suit was initiated by a 
federal enforcement agency or by private parties, and 
the courts exercise their discretion thereunder in light 
of the entire factual and legal fabric of the litigation 
including both subjective and objective factors. For 
example, in the instant case, the court of appeals 
affirmed the finding of good faith only after assuring 
itself that the issue litigated by the Commission un­
successfully was one “ of first impression requiring 
judicial resolution” (Pet App. 9-A ), and after the 
district court had found the Commission’s suit to be 
neither “ unreasonable or meritless”  (Pet. App. 2-A ). 
This application of the “ good faith” standard fully 
implements the congressional goals “ to encourage re­
sponsible litigation but to discourage baseless or friv­
olous actions.”  Carrion v. Yeshiva University, supra, 
535 F. 2d at 727.

4. The suggestion by petitioner and amici that 
public policy requires that prevailing defendants ordi­
narily be awarded fees is not only inconsistent with 
the private attorneys general rationale, it would 
thwart the primary enforcement incentive purpose of 
Section 706(k) by “ effectively discouraging] suits 
in all but the clearest cases, and inhibit [ing] earnest 
advocacy on undecided issues.” United States Steel 
Corporation v. United States, supra, 519 F. 2d at 
364-365. As applied to suits initiated by the Equal 
Employment Opportunity Commission, fee awards



9

resulting from good faith but unsuccessful litigation 
would drain Commission resources that Congress 
recognized were limited in comparison with the Com­
mission’s statutory responsibilities. See Occidental 
Life Insurance Co. v. Equal Employment Opportunity 
Commission, No. 76-99, decided June 20, 1977, slip 
op., p. 9. Equality of treatment does not require that 
the Commission ordinarily pay fees to successful de­
fendants because under Section. 706(h) the Commis­
sion is explicitly precluded from obtaining a fee 
award when it emerges as a successful plaintiff. 
Finally, the claim that the language of Section 706(h) 
requires that fees ordinarily be awarded to successful 
defendants is inconsistent with Congress’s subsequent 
use of similar language accompanied by explicit con­
gressional adoption of the standards applied by the 
court of appeals below. S. Eep. No. 94-1011, 94th 
Cong., 2d Sess., pp. 4-5 (1976) ; H.R. Rep. No. 94- 
1558, 94th Cong., 2d Sess., pp. 6-7 (1976).

A R G U M E N T

THE DISTRICT COURT PROPERLY EXERCISED ITS DISCRE­
TION IN DECLINING TO AWARD ATTORNEY’S FEES TO A 
PREVAILING DEFENDANT IN A TITLE VII ENFORCEMENT 
ACTION BROUGHT IN GOOD FAITH BY THE EQUAL EM­
PLOYMENT OPPORTUNITY COMMISSION.

A. SECTION 706(k ) REQUIRES A D IST R IC T  COURT TO E XERCISE IT S  D IS ­
CRETION IN LIG H T  OF TH E PU RPOSES OF T IT L E  V II AN D TH E L E G ISL A ­
T IV E  H ISTO RY OF TH E F E E  AW A R D  STATU TE IN ORDER TO DETERM IN E 
W H E TH E R  A P A RTIC U LAR  PR EV A ILIN G  PA R T Y  SHOULD BE A W ARDED

a t t o r n e y ’s  FEES.

The long established and recently reaffirmed 
American rule is that attorney’s fees generated by



10

litigation are not normally recoverable as costs by the 
prevailing party in a lawsuit. Alyeska Pipeline Serv­
ice Co. v. Wilderness Society, 421 U.S. 240. Fees are 
not ordinarily awarded to a successful plaintiff, and, 
in the absence of legislation providing for fee awards, 
prevailing defendants must also absorb what may 
sometimes be the enormous costs of litigation initiated 
against them. That the unsuccessful litigation is initi­
ated by a government agency against a private de­
fendant does not alter the rule that each party must 
bear its own fee costs.2 While the American rule has 
been much criticized,3 Congress has provided only 
limited exceptions “ under selected statutes granting 
or protecting various federal rights.” Alyeska Pipe­
line Service Co. v. Wilderness Society, supra, 421 
U.S. at 260.

Congress has drafted its fee award statutes with 
varying degrees of specificity. Some statutes make fee 
awards mandatory;4 others restrict awards to par-

2 This Court has recognized a number of equitable exceptions 
to the American rule (see Alyeska Pipeline Service Co. v. Wilder­
ness Society, supra, 421 U.S. at 257-259), but the allegedly heavy 
burden of costs incurred by successful defense of litigation initi­
ated by the government has never been recognized as a sufficient 
rationale for a fee award.

3 See F. I). Rich Co. v. Industrial Lumber Co., 417 U.S. 116, 
128, n. 15; Alyeska Pipeline Service Co. v. Wilderness Society, 
supy'a, 421 U.S. at 270, n. 45.

4 See, e.g., the Clayton Act, 38 Stat. 731, 15 U.S.C. 15; the Fair 
Labor Standards Act of 1938, 52 Stat. 1069, as amended, 29 U.S.C. 
216(b) ; the Truth in Lending Act, 82 Stat. 157, 15 U.S.C. 1640 
(a ) ;  and the Merchant Marine Act of 1936, 49 Stat. 2015, 46 
U.S.C. 1227.



11

ticular parties, usually prevailing plaintiffs.5 6 Fre­
quently the statutory mandates are less precise, per­
mitting awards to either parties plaintiff; or parties 
defendant and relegating the fee award decision to 
the discretion of the district court.0 The authority of 
district courts under statutes requiring the exercise of 
discretion is not open ended, but must be exercised 
with close reference to the goals of the particular 
statute. Albemarle Paper Go. v. Moody, 422 U.S. 405, 
416; Hecht Co. v. Bowles, 321 U.S. 321. In reviewing 
fee award standards implementing these discretion­
ary powers, this Court has looked to the pertinent 
legislative history and the function of the fee award 
in implementing the larger goals of the statutory 
scheme. See Newman v. Piggie Park Enterprises, 390 
U.S. 400; North,cross v. Memphis Board of Education, 
412 U.S. 427. Whether the language of the fee award 
provision is discretionary or mandatory, “ the circum­
stances under which attorneys’ fees are to be awarded 
and the range of discretion of the courts in making 
those awards are matters for Congress to determine.”

5 See, e.g., the Privacy Act, 5 U.S.C. (Supp. V ) 552a(g) (2) 
( B ) ; Packers and Stockyards Act, 42 Stat. 165, 7 U.S.C. 210 ( f ) ; 
Fair Housing Act of 1968, 82 Stat. 88,42 U.S.C. 3612(c).

6 See e.g., Trust Indenture Act of 1939, 53 Stat. 1171, as 
added, 15 U.S.C. 77ooo(e); Securities Exchange Act of 1934, 48 
Stat. 889, 15 U.S.C. 78i(e), 78r(a ) ; Federal Water Pollution 
Prevention and Control Act of 1972, 86 Stat. 888, as added, 33 
U.S.C. (Supp. V ) 1365(d); Clean Air Act Amendments of 1970, 
84 Stat. 1706, as added, 42 U.S.C. 1857h-2(d); Noise. Control Act 
1972, 86 Stat. 1244, 42 U.S.C. (Supp. V ) 4911.

247- 347— 77- ■3



12

Alyeska Pipeline Service Co. v. Wilderness Society, 
supra, 421 U.S. at 262.

Section 706 (k) is by its terms a permissive grant of 
statutory authority to award fees in the discretion of 
the district court. It provides: “ [T]he court, in its 
discretion, may allow the prevailing party * * * a 
reasonable attorneys fee.” 42 U.S.C. 2000e-5(k). This 
permissive and discretionary language indicates that 
the statute does not require the mechanical award of 
fees in all eases to all prevailing parties. But the 
statutory language provides no further indication of 
which prevailing parties in which circumstances 
should obtain a fee award, and there is certainly no 
language suggesting that “ a prevailing [party] de­
fendant is entitled to an award of attorney’s fees on 
the same basis as a prevailing plaintiff” (Pet. Br. 4; 
see also EE AC Br. 5; Chamber Br. 7 )7

In the absence of any precise guidance from the 
statutory language, the courts have developed appro­
priate standards for the exercise of their discretion 
under Section 706 (k). This Court has addressed under 
standards governing fee awards to plaintiffs under 
an identically worded fee provision, and has held 
that success alone ordinarily merits the award of fees 
to a Civil Rights Act plaintiff. Newman v. Picjgie 
Park Enterprises, supra, 390 U.S. at 402. Petitioner 
claims that the same standards must apply to pre­

7 “ Pet. Br.” refers to the Brief of the Petitioner. “ EEAC Br.” 
refers to the Brief Amicus Curiae of the Equal Employment A d­
visory Council. “ Chamber Br.” refers to the Brief for the National 
Chamber Litigation Center as Amicus Curiae.



13

vailing defendants. As this Court has indicated, how­
ever, the question is not one of abstract fairness, or 
of generally equitable distribution of litigation bur­
dens, but more precisely whether the fee award stand­
ard “ properly effectuates the purposes of the counsel- 
fee provision.”  390 U.S. at 401 (emphasis added).
B. TH E A W A R D  OF FE ES TO SUCCESSFUL P L A IN T IF F S  EFFEC TU A TES TH E 

PR IM A R Y PURPOSE OF SECTION 706 (k ) TO PROVIDE SUPPORT FOR 
P R IV A T E  ATTORN EYS GENERAL VIN D ICATIN G TH E T IT L E  V II PROH I­
BITIO N  A G A IN ST EM PLOYM ENT DISCRIM IN ATION

In Newman v. Piggie Park Enterprises, supra, this 
Court recognized that private litigation is a crucial 
element in the congressional scheme for the enforce­
ment of the civil rights laws. “When the Civil Rights 
Act of 1964 was passed, it was evident that enforce­
ment would prove difficult and that the Nation would 
have to rely in part upon private litigation as a 
means of securing broad compliance with the law” 
(390 U.S. at 401). The Court characterized private 
plaintiffs seeking to obtain relief under the 1964 Act 
as “ ‘private attorney[s] general,’ vindicating a policy 
that Congress considered of the highest priority”  
{id. at 402).8 Newman arose under Title II  of the 
1964 Act—specifically, 42 U.S.C. 2000a-3(b)—which 
the language of Section 706 (k) tracks exactly that 
the “ court, in its discretion, may allow the prevailing 
party * * * a reasonable attorney’s fee.” Contrary 
to what petitioner suggests should be done here, the

s See, also, Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 
211; Northcross v. Memphis Board of Education, supra, 412 U.S. 
at 428.



14

Court in Newman approached the question of stand­
ards with particular attention to the fact that the 
primary purpose of the statute in encouraging pri­
vate enforcement required that prevailing plaintiffs 
“ should ordinarily recover an attorney’s fee unless 
special circumstances would render such an award 
unjust”  (390 U.S. at 402).

While the legislative history of Section 706 (k) is 
sparse, it indicates that that Section’s role in Title 
V II of the Civil Rights Act was not intended to be 
different from the function of the identical fee pro­
visions in Title II  to support the enforcement efforts 
of private attorneys general. Congress has consist­
ently recognized that “ most title Y II  complainants 
are by the very nature of their complaint disadvan­
taged.”  S. Rep. No. 92-415, 92d Cong., 1st Sess., 
p. 17 (1971). Senator Humphrey, a principal spon­
sor of the 1964 Act, said with reference to the fee 
award provision in Title Y II : “ This should make it 
easier for a plaintiff of limited means to bring a meri­
torious suit” (110 Cong. Rec. 12724 (1964)).

The courts of appeals have been uniform in applying 
the rule that prevailing plaintiffs should ordinarily 
receive a fee award under Section 706(k) “ to make 
sure that Title Y II  works.”  Johnson v. Georgia 
Highway Express, Inc., 488 F. 2d 714, 716 (C.A. 5). 
See Parker v. Califano, C.A.D.C., No. 76-1416, de­
cided June 30, 1977; Grubbs v. Buts, 548 F. 2d 973, 
975 (C.A.D.C.) ; Robinson v. Lorillard Corporation, 
444 F. 2d 791, 804 (C.A. 4), certiorari dismissed, 404 
U.S. 1006; Parham v. Southwestern Bell Telephone 
Co., 433 F. 2d 421, 429-430 (C.A. 8) ; Rosenfeld v.



15

Southern Pacific Company, 519 F. 2d 527 (C.A. 9) ; 
Carrion v. Yeshiva University, 535 P. 2d 722 (C.A. 2). 
Any doubt that the district courts should ordinarily 
make fee awards to plaintiffs to effectuate the private 
enforcement of Title V II was put to rest by this 
Court’s statement in Albemarle Paper Co. v. Moody, 
422 U.S. 405, 415 (emphasis supplied) :

There is, of course, an equally strong public 
interest in having injunctive actions brought 
under Title V II, to eradicate discriminatory 
employment practices. * * * [TJhis interest 
can be vindicated by applying the Piggie Park 
standard to the attorneys’ fees provision of 
Title V II, 42 U.S.C. §2000e-5(k), see North- 
cross v. Memphis Board of Education, 412 
U.S. 427, 428 (1973).

Petitioner and amici argue strenuously that Neiv- 
man v. Piggie Park requires that fee awards should 
be made in the ordinary case to successful defendants. 
But this Court’s treatment of the question in Newman 
and Albemarle did not purport to establish a stand­
ard applicable to both plaintiffs and defendants. In­
deed, the rationale of Newman simply does not apply 
to awards to defendants; the “prevailing defendant 
seeking an attorney’s fee does not appear before 
the court cloaked in a mantle of public interest.”  
United States Steel Corporation v. United States, 
519 F. 2d 359, 364 (C.A. 3). A successful defendant 
does not act as a “private attorney general,” and does 
not vindicate the Title V II policy prohibiting employ­
ment discrimination. As the court of appeals stated, 
“ these policy consideration which support an award 
of fees to a prevailing plaintiff are not present in the 
case of a prevailing defendant”  (Pet. App. 7-A).



16

Indeed, the prospect of routine conferral of such 
awards on prevailing defendants would serve to dis­
courage the very enforcement efforts that Section 
706(k) was intended to promote (see p. 17, 23-24, 
infra). Accordingly, since a rule ordinarily awarding 
a fee to a Title Y II  defendant based simply on the 
fact of success in litigation would not effectuate, and 
indeed would disserve, the ineentive-to-enforcement 
purpose of the counsel fee provision, and since Con­
gress plainly intended that fee awards be available 
to defendants as well as plaintiffs, the rationale fox- 
fee awards to defendants must be based on an alter­
native statutory purpose.

C. TH E A W A R D  OF FE ES TO SUCCESSFUL DEFEND AN TS W H EN  LITIG A TIO N  
HAS BEEN IN ITIA TE D  IN B AD  F A IT H  E FFECTU ATES SECTION 706 (k )"S  
PURPOSE TO DISCOURAGE FRIVOLOUS T IT L E  V II LITIGATION .

The fee award authorization in Section 706 (k) had 
a dual purpose. The Court of Appeals for the District 
of Columbia Circuit reviewed the applicable legislative 
history in Grubbs v. But2, 548 F. 2d 973, 975, and con­
cluded :

From the Senate debate on the Mansfield- 
Dirksen amendment * * * two purposes for 
§ 706 (k) emerge. First, Congress desired to 
“make it easier for a plaintiff of limited means 
to bring a meritorious suit,” * * * . * * *  iq 11 
second, and equally important, Congress in­
tended to “ deter the bringing of lawsuits with­
out foundation” by providing that the “prevail­
ing party”—be it plaintiff or defendant—could 
obtain legal fees.

That the purpose of including successful defendants 
in the fee award authorization was limited to dis­



17

couraging frivolous litigation is apparent in the legis­
lative history reviewed by petitioner (Br. 6) and 
amicus (Chamber Br. 8-9). Senator Pasture stated 
explicitly that “ [t]he purpose of this provision in the 
modified substitute is to discourage frivolous suits.” 
110 Cong. Ree. 14214 (1964). Senator Lausehe con­
curred, stating “ that language was inserted in the bill 
to deter the bringing of lawsuits without foundation.” 
110 Cong. Ree. 13668 (1964).° Finally, Senator 
Humphrey stated that allowing a reasonable attorney’s 
fee “ will obviously operate to diminish the likelihood 
of unjustified suits being brought.”  110 Cong. Ree. 
6534 (1964).

To serve the twin goals of the fee award statute by 
penalizing frivolous litigation without chilling the 
efforts of private attorneys general, the courts have 
applied what the court of appeals termed the “good 
faith” standard (Pet. App. 8-A ). The seminal ease in 
this line is United States Steel Corporation v. United 
S ta te s 519 F. 2d 359 (C.A. 3), which affirmed the 
refusal of the district court to award fees to a defend­
ant which had successfully resisted an Equal Employ­
ment Opportunity Commission demand for docu­
ments. The district court had stated “ There is nothing 
to indicate that the demand for access was brought 
to harass, embarrass or abuse * * * nor can we say 
[the EEOC’s] action was unfounded, meritless, frivo- 9

9 Senator Miller made a slightly different point relating to fee 
awards to plaintiffs; he stated that “ ambulance chasing would be 
rather futile if the case were not meritorious and if the party lost, 
because as the bill now provides, the attorney’s fee is good only to 
the prevailing party.” 110 Cong. Eec, 14214 (1064).



18

lous or vexatiously brought’ ” (519 F. 2d at 363). 
The court of appeals ruled that it was “ unable to 
conclude that the district court abused its discretion 
in deciding not to award an attorney’s fee in this 
case” (id. at 365). In Carrion v. Yeshiva University, 
535 F. 2d 722 (C.A. 2), the court of appeals 
upheld an award to a successful defendant, stating 
that such awards should be permitted “not routinely, 
not simply because he succeeds, but only where the 
action brought is found to be unreasonable, frivolous, 
meritless or vexatious.” (Id. at 727). Similarly, an 
award in favor of a defendant was upheld in Van 
Hoomissen v. Xerox Corp., 503 F. 2d 1131 (C.A. 9), 
where an appeal by the EEOC was judged “ vexatious 
and prosecuted on highly questionable grounds” (un­
published order quoted at Pet. App. 8-A).

With two exceptions,10 the courts of appeals have

10 In United States v. Allegheny-Ludlum Industries, Inc., 558 
F. 2d 742 (C.A. 5), the Court of Appeals for the Fifth 
Circuit held that in awarding fees, the same standards should 
be applied to plaintiffs and defendants. This holding is incon­
sistent with the rule announced by the same circuit in Bolton v. 
Murray Envelope Corp., 553 F. 2d 881, and a petition for rehear­
ing en banc has been filed.

In Equal Employment Opportunity Commission v. The Bailey 
Co., Inc., C.A. 6, No. 76-1045, decided September 20, 1977, the 
Court of Appeals for the Sixth Circuit held that the “plain lan­
guage” o f Section 706 (k) precludes the application of a different 
standard to prevailing defendants from that applied to prevailing- 
plaintiffs (slip op., pp. 28-32)—in other words, that the plain lan­
guage of that Section precludes the interpretation previously 
adopted by most courts of appeals. The court’s opinion in that case 
makes no reference to the statement in a prior opinion by a differ­
ent panel of that court that that Section’s “ authorization [o f a fee



19

accordingly held that a prevailing defendant in Title 
V II litigation, whether initiated by the Equal Em­
ployment Opportunity Commission or by a private 
plaintiff, is entitled to an award of attorney’s fees 
only upon a finding that the action was brought in 
bad faith or vexatiously. See, in addition to the deci­
sion below, United States Steel Corporation v. United 
States, supra; Van Hoomissen v. Xerox Corp., supra; 
Carrion v. Yeshiva University, supra; Bolton v. Mur­
ray Envelope Corp., 553 F. 2d 881, 884, n. 2 (C.A. 5) ; 
Grubbs v. Blitz, 548 F. 2d 973, 975-976 (C.A.D.C.) ; 
Wright v. Stone Container Corp., 524 F. 2d 1058, 
1063-1064 (C.A. 8 ); Richardson v. Hotel C-orp. of 
America, 332 F. Supp. 519, 522 (E.D. La.), affirmed, 
468 F. 2d 951 (C.A. 5).

Contrary to amicus contention (EEAC Br. 13; 
Chamber Br. 21-22), in practical application the good 
faith standard is not completely subjective. For ex­
ample, in the instant case the court of appeals affirmed 
the finding of good faith only after assuring itself 
that the issue litigated by the Commission unsuccess­
fully was one “ of first impression requiring judicial 
resolution”  (Pet. App. 9-A), and after the district

award# to a prevailing defendant] is designed to insure that the 
EEOC does not commence groundless actions.” Equal Employ­
ment Opportunity Commission v. MacMillan Bloedel Containers, 
I n c 503 F. 2d 1086, 1096. Moreover, the court in Bailey recog­
nized (slip op., p. 32) that “ Congress was aware and approved of 
the double standard in the award of attorneys’ fees under Title 
V II  and intended that result with respect to the 1976 Attorney’s 
Fee Act, although written like § 706 (k) of Title V II * * *.” See 
infra, pp. 26-30.



20

court had found the Commission’s suit to be neither 
“unreasonable or meritless” (Pet. App. 2-A ) A In mak­
ing good faith determinations in other cases, the courts 
have referred to the objective context in which the 
litigation arose, including any prior litigation of the 
same issue (Carrion v. Yeshiva University, supra, 
535 P. 2d at 728), the duty of the Commission to ad­
vance Title V II  policies (Equal Employment Oppor­
tunity Commission v. Children’s Hospital of Pitts­
burgh, 556 P. 2d 222, 224 (C.A. 3)), and the educa- 11

11 The Commission argued that in Section 14 of the Equal Em­
ployment Opportunity Act o f 1972 (see supra p. ) Congress 
had empowered the Commission to institute suit based upon any 
charge filed with the Commission prior to March 24,1972, as long 
as the Commission had found reasonable cause to believe that the 
respondent was guilty of unlawful employment practices but had 
been unable to resolve the suit through conciliation. Since it was 
hoped that at least some companies that had previously refused to 
conciliate would change their minds with the enactment of the 
1972 Amendments, the Commission took the view that charges as 
to which no private suit had been brought remained pending be­
fore the Commission even though conciliation had failed. This 
view was consistent with legislative history suggesting that the 
Commission should not ignore employment situations which it had 
earlier determined to be discriminatory and which apparently re­
mained in effect in March 1972. See Legislative History of the 
Equal Employment Opportunity Act of 1972, prepared by the 
Subcommittee on Labor of the Senate Committee on Labor and 
Public Welfare, 92d Cong., 2d Sess. 1851 (Committee Print, 
1972). When the Commission initiated this action, there had 
been no Supreme Coxirt case interpreting Section 14, and neither 
petitioner nor amici challenge the determinations o f both the 
district court and the court o f appeals that the Commission’s 
action satisfied the good faith test. In any event, the “ seasoned and 
wise” rule of this Court is that in the absence of an “ exceptional 
showing of error,” the concurrent findings of two lower courts will 
be considered final. Comstock v. Group of Institutional Investors, 
335 U.S. 211, 214.



21

tion of the plaintiff (Kutska v. California State Col­
lege, C.A. 3, No. 76-1958, decided July 15, 1977, slip 
op., p. 8.12 Thus, the application of the good faith 
standard by the courts takes cognizance of the entire 
factual and legal fabric of the litigation in order fully 
to implement the congressional goals “ to encourage 
responsible litigation but to discourage baseless or 
frivolous actions”  Carrion v. Yeshiva University, 
supra, 535 F. 2d at 727.

Petitioner (Br. 8) and amici (EEAC Br. 6; Cham­
ber Br. 11) claim that limiting fee awards to defend­
ants who were harassed by frivolous litigation is incon­
sistent with the congressional decision to award fees to 
“ prevailing parties,”  rather than to “prevailing plain­
tiffs” as in an earlier draft of the bill, and with the 
recognition in Newman v. Piggie Park, supra, that 
prior to the passage of the 1964 Civil Bights Act, the 
courts had equitable power to make fee awards against 
plaintiffs who initiated litigation in bad faith. The leg­
islative history does not reveal the precise reason for 
the change in the bill’s language. See Grubbs v. Buts, 
supra, 548 F. 2d at 976, n. 14. But petitioner’s argu­
ment fails to appreciate that regardless of what equi­
table powers the courts may have had prior to the 
passage of the statute, there was a substantial danger

12 Similarly, when applying the traditional equitable exception 
permitting an award o f attorney’s fees against a bad faith litigant, 
the courts have considered objective factors indicating the presence 
or absence of bad faith. See Hall v. Cole, 412 U.S. 1,15; Runyon 
v. McCrary, 427 U.S. 160, 183-184 (using the term “ irresponsible 
conduct” ) ; Ilusckerv. Milburn, 538 F. 2d 1241,1245, n. 9 (C.A. 6 ); 
Adams v. Carlson, 521F. 2d 168,170 (C.A. 7).



22

that after its passage, the courts would view their fee 
powers in the cases to which it applied as limited to 
the statute’s specific terms. For example, in Byram 
Concretanks, Inc. v. Warren Concrete Products Com­
pany of New Jersey, 374 F. 2d 649, 651 (C.A. 3), the 
court denied a prevailing defendant attorney’s fees 
even after finding that plaintiff’s “ suit was baseless 
and not properly grounded under the Anti-Trust stat­
utes”  because the Clayton Act, 15 U.S.C. 15, author­
ized an attorney’s fee award only to persons who had 
successfully asserted antitrust claims. Thus the con­
gressional authorization of awards to prevailing de­
fendants was necessary in order to protect the con­
tinuing availability of the award against bad faith 
litigation.

Contrary to petitioner’s contention, nothing in New­
man v. Biggie Park Enterprises, supra, suggests a dif­
ferent conclusion; the Court there explicitly recognized 
that one goal of the statute was to discourage bad faith 
litigation. It stated, “ Congress therefore enacted the 
provision for counsel fees”  to encourage private en­
forcement, “not simply to penalize litigants who delib­
erately advance arguments they know to be untena­
ble.”  390 U.S. at 402. Finally, while petitioner argues 
that it is difficult to believe that Section 706 (k) merely 
enacted into legislation the equitable powers of the 
courts to penalize bad faith litigation, no concern 
other than frivolous litigation is expressed in the leg­
islative history it cites.



23
D. TH E A LT E R N A T IV E  STAN DARDS PROPOSED BY P E TITIO N E R  AND AM ICI

A RE  IN CONSISTENT W ITH  TH E L E G ISL A T IV E  H ISTO RY AND PURPOSES
OF T IT L E  VII AND W ITH  TH E  SUBSEQUENT E X P L IC IT  A PPRO VA L BY
CONGRESS OF TH E GOOD F A IT H  STANDARD.

Petitioner and amici (Pet. Br. 10; EEAC Br. 8-11; 
Chamber Br. 13-20) argue that prevailing defendants 
should routinely be awarded fees on the same basis as 
are prevailing plaintiffs under the rule approved in 
Newman v. Piggie Park Enterprises, supra. As previ­
ously noted, nothing in Newman’s language or logic 
supports that conclusion. The Court’s entire analysis 
focused on plaintiffs alone, and the private attorneys 
general rationale on which it relied does not apply to 
successful defendants. Indeed, awarding fees routinely 
to successful defendants would thwart the primary 
purpose of Section 706 (k) to serve as an incentive 
to effective enforcement of Title Y II  through litiga­
tion. “A routine allowance of attorney fees to suc­
cessful defendants in discrimination suits might ef­
fectively discourage suits in all but the clearest cases, 
and inhibit earnest advocacy on undecided issues.” 
United States Steel Corporation v. United States, 
supra, 519 P. 2d at 364-365A 13

13 In a brief amicus curiae, the National Chamber Litigation 
Center suggests that constitutional considerations require the ap­
plication of the same standard in awarding attorney’s fees (Br. 

20-21). Plaintiffs and defendants, however, are not similarly sit­
uated persons. Congress has recognized that private Title V II 
plaintiffs and defendant employers do not have the same resources 
(S. Rep. No. 92-415, 92d Cong., 1st Sess., p. 17 (1971)), and this 
Court has upheld the constitutionality o f statutes awarding attor­
ney’s fees only to prevailing plaintiffs on the basis of the differing 
litigation burdens born by plaintiffs and defendants. See Missouri, 
Kansas & Texas Railway Company of Texas v. Cade, 233 U.S. 642, 
650.



24

Not only would such a rule deter private plaintiffs 
from playing the private attorneys general role that 
Newman recognized as central to the scheme of the 
1964 Civil Rights Act, but it would also hinder the 
Equal Employment Opportunity Commission’s per­
formance of the enforcement role assigned to it by the 
1972 Amendments. Congress knew that the Commis­
sion’s resources were severely limited in comparison 
with the magnitude of the national objective of eradi­
cating employment discrimination. Occidental Life 
Insurance Co. v. Equal Employment Opportunity 
Commission, No. 76-99, decided June 20, 1977, slip op., 
p. 9. In the absence of any supportive language or 
legislative history, it would be inconsistent with the 
remedial goals of Title Y II  to create an attorney’s 
fee rule that would further burden good faith enforce­
ment by the Commission.14 Such fee awards against 
the Commission would be especially anomalous because 
Section 706 (k) authorizes fee awards only to a “pre­
vailing party, other than the Commission,”  and there­
fore the Commission cannot recover attorney’s fees as 
plaintiff. Thus, whatever the merits of petitioner’s 
argument (Br. 10-11) that equality of treatment 
demands that the same standard be applied in award­
ing attorney’s fees to both prevailing defendants and 
prevailing private plaintiffs, it has no application

14 The Comptroller General has ruled that agencies—such as the 
Equal Employment Opportunity Commission—which have been 
authorized by Congress to bring enforcement actions are required 
to pay their own litigation expenses. See 46 Comp. Gen. 98, 100



25

where the Commission is the unsuccessful plaintiff.15.
Amici (EEAC Br. 15-20; Chamber Br. 14-17) seek 

to support a liberal standard for fee awards to success­
ful defendants by citing the high cost of litigation.18 
and the alleged advantages of fee awards, including 15 16

(1966); 38 Comp. Gen. 343, 344-345 (1958). Also, pursuant to 31 
U.S.C. 484, the Comptroller General has ruled that where agencies 
have successfully brought enforcement actions and have recovered 
costs, such monies are transferred to the Treasury’s general fund, 
not the account of the agency. 47 Comp. Gen. 70, 72 (1967).

Consistent with these rulings, the Equal Employment Oppor­
tunity Commission has paid awards for attorney’s fees to prevail­
ing defendants from unexpended funds allocated to its legal pro­
gram, and has returned costs recovered in successful enforcement 
actions to the Treasury’s general fund.

15 The EEAC argues that routine allowance o f attorney’s fees tô  
prevailing defendants would not discourage the Equal Employ­
ment Opportunity Commission from bringing suit because the 
Commission has a statutory duty to bring enforcement actions 
(Br. 9). The Commission’s authority to bring suit upon comple­
tion of its duty to conciliate is, however, discretionary ( Occidental 
Life Insurance Go. v. Equal Employment Opportunity Commis­
sion, supra., slip op., p. 9, n. 18) and as a practical matter its exor­
cise is a function of the resources made available to the Commis­
sion.

16 Amicus curiae Equal Employment Advisory Council argues 
that many Title V II defendants are small businesses and that 
considerations of fairness require that such employers be awarded 
attorneys’ fees on a routine basis (Br. 18). Congress, however, 
specifically rejected such protection for small businesses by elimi­
nating a Senate amendment which would have mandated the award 
o f attorney’s fees to small employers. S. Sep. No. 92-681, 92cl 
■Cong., 2d Sess., p. 19 (1972). Congress instead provided protec­
tion to small businesses by exempting businesses with less than 15 
employees from the coverage of Title V II (see Section 701(b) of 
Title V II, 42 U.S.C. 2000e(b), even though it was aware that 
“ small establishments have frequently been the most flagrant viola­
tors o f equal employment opportunity” and even though, for this 
reason, it had originally been proposed that the exemption be 
limited to businesses with less than eight employees. S. Rep. No. 
92-415, 92d Cong., 1st Sess., p. 8 (1971).



26

checking “ our ever expanding bureaucracy”  and pro­
tecting the benefits of a company’s employees. Nothing 
in the legislative history suggests that any of these 
claimed advantages of fee shifting were considered by 
Congress or were intended to be implemented by Sec­
tion 706(k). Nor is there any indication that Congress 
intended that fee shifting would be justified simply be­
cause under the American rule the defendant in litiga­
tion, whether successful or unsuccessful, must ordinar­
ily bear what may often amount to large litigation 
costs. Fee shifting was discussed by Congress only in 
the context of either an incentive to private plaintiffs 
or a discouragement to frivolous suits. To permit 
awards for other purposes would therefore be im­
proper, since “ the range of discretion of the courts in 
making those awards are matters for Congress to de­
termine.”  Alyeska Pipeline Service Co. v. Wilderness 
Society, supra, 421 U.S. at 262.

Moreover, the claim that the language of Section 
706 (k) requires a single standard of fee awards is 
inconsistent with Congress’s subsequent nse of similar 
language accompanied by explicit congressional adop­
tion of the standards applied by the court of appeals 
below. The Civil Rights Attorney’s Fees Awards Act 
of 1976, 90 Stat. 2641, amending 42 U.S.C. 1988, like 
Section 706 (k), states that “ the court, in its discretion, 
may allow the prevailing party, other than the United 
States, a reasonable attorney’s fee as part of costs.” 17

17 The Civil Rights Attorney’s Fees Awards Act authorizes the 
courts to exercise discretion in awarding attorney’s fees to prevail­
ing parties in actions inter alia, under 42 U.S.C. 1981 which, like 
Title V II, prohibits discrimination in private employment on the 
basis of race. Johnson v. Railway Express Agency, 421 U.S. 454.



27

The Senate Judiciary Committee’s report declared 
(S. Rep. No. 94-1011, 94th Cong., 2d Sess., pp. 4-5) 
(1976) (emphasis supplied):

It is intended that the standards for awarding 
fees be generally the same as under the fee 
provisions of the 1964 Civil Bights Act. A 
party seeking to enforce the rights protected 
by the statutes covered by S. 2278, if success­
ful, “ should ordinarily recover an attorney’s 
fee unless special circumstances would render 
such an award unjust.” Newman v. Biggie 
Park Enterprises, Inc., 390 U.S. 400, 402 
(1968). Such “private attorneys general” 
should not be deterred from bringing good faith 
actions to vindicate the fundamental rights 
here involved by the prospect of having to pay 
their opponent’s counsel fees should they 
lose. * * * Such a party, if unsuccessful, could 
be assessed his opponent’s fee only where it is 
shown that his suit was clearly frivolous, vexa­
tious, or brought for harassment purposes. 
United States Steel Corp. v. United States, 
385 F. Supp. 346 (W.D. Pa. 1974), aff’d [519 
F. 2d 359] (3rd Cir. 1975). This bill thus deters 
frivolous suits by authorizing an award of at­
torneys’ fees against a party shown to have 
litigated in “bad faith” under the guise of at­
tempting to enforce the Federal rights created 
by the statutes listed in S. 2278. * * * [Foot­
notes omitted; emphasis supplied.]

The House Judiciary Committee’s report stated 
(H.R. Rep. No. 94-1558, 94th Cong., 2d Sess., pp. 6-7 
(1976)) :

[T]he courts have developed a different stand­
ard for awarding fees to prevailing defendants



28

because they do “not appear before the court 
cloaked in a mantle of public interest.” United 
States Steel Corp. v. United States, 519 P. 2d 
359, 364 (3rd Cir. 1975). As noted earlier such 
litigants may, in proper circumstances, recover 
their counsel fees under H.R. 15460. To avoid 
the potential “ chilling effect”  * * * and to 
advance the public interest articulated by the 
Supreme Court, however, the courts have devel­
oped another test for awarding fees to prevail­
ing defendants. Under the case law, such an 
award may be made only if the action is 
vexatious and frivolous, or if the plaintiff has 
instituted it solely “ to harass or embarrass” the 
defendant. United States Steel Corp. v. United 
States, supra at 364. I f  the plaintiff is “moti­
vated by malice and vindictiveness,”  then the 
court may award counsel fees to the prevailing 
defendant. Carrion v. Yeshiva University, 535 
P. 2d 722 (2d Cir. 1976). Thus if the action is 
not brought in bad faith, such fees should not 
be allowed. See, Wright v. Stone Container 
Corp. 524 P. 2d 1058 (8th Cir. 1975) ; see also, 
Richardson v. Hotel Corp. of America, 332 
P. Supp. 519 (EJD. La. 1971), aff’d without 
published opinion, 468 P. 2d 951 (5th Cir. 
1972). This standard will not deter plaintiffs 
from seeking relief under these statutes, and 
yet will prevent their being used for clearly 
unwarranted harassment purposes.18 18

18 Congress intended that the bad faith standard governing the 
discretionary award of attorney’s fees to prevailing defendants 
should be applicable to government enforcement litigation. The 
Civil Eights Attorney’s Fees Awards Act of 1976 contains a provi­
sion which authorizes a court to award attorney’s fees to a prevail­



29

Congress considered providing attorney’s fees only 
to a prevailing plaintiff, but, relying on judicial deci­
sions holding that a prevailing defendant is entitled to 
a discretionary award of fees only upon a finding of 
bad faith, it adopted language similar to that of Section 
706 (k) of Title V II. See H.R. Rep. No. 94-1558, 94th 
Cong., 2d Sess., p. 6 (1976).19 While this legislative

ing defendant in an action by the United States to recover unpaid 
taxes. In awarding such fees to a prevailing taxpayer, Senator 
Kennedy stated that “ awards are appropriate where * * * the 
plaintiff, the Government, acted in a frivolous or vexatious man­
ner or brought the suit for purposes of harassment.” 122 Cong. 
Eec. S17050 (daily ed., September 29,1976).

19 I f  the issue were the initial interpretation of Section 706 (k), 
a strong argument could be made that Congress did not, in 1964, 
intend to permit the award of attorney’s fees against the govern­
ment any more than it permitted such awards in favor of the 
government.

Section 707 (h) of H.R. 7152, as passed by the House of Repre­
sentatives, provided only that “ the Commission shall be liable for 
costs the same as a private person.”  H.R. Rep. No. 914,88th Cong., 
1st Sess., p. 13 (1963). Such a provision was required because, at 
the time Title V II was enacted, the United States was not ordi­
narily liable for costs when it brought suit. See the statement of 
Senator Humphrey explaining a similar provision in the House 
version of Titles I I I  and IV , Civil Rights Act of 1964,78 Stat. 246, 
(110 Cong. Rec. 6543 (1964)). Compare 62 Stat. 973 with 80 Stat. 
308, amending 28 U.S.C. 2412 in 1966 to authorize the recovery of 
costs from the United States. The term “ costs,” however, does not 
include attorney’s fees. See 28 U.S.C. 2412.

A  provision authorizing the award of attorney’s fees first ap­
peared in the Dirksen-Mansfield amendment introduced on the 
Senate floor. 110 Cong. Rec. 11933 (1964). As explained by Sena­
tor Humphrey: “ This should make it easier for a plaintiff o f lim­
ited means to bring meritorious suits. The provision for the taxing 
of costs against the Commission and the United States is similar 
to that in section 707(h) of the House bill.”  110 Cong. Rec. 12724 
(1964). Senator Humphrey’s analysis indicates that Congress may



30

history of a subsequently enacted statute indicating 
Congress’ careful review and adoption of the prevail­
ing interpretation of Section 706 (k) may not merit 
the weight given to contemporaneous statements, it is 
nevertheless “ entitled to careful consideration ‘ as a sec­
ondarily authoritative expression of expert opinion,’ ” 
Parker v. Calif ano, supra, slip op., pp. 41-42; see Red 
Lion Broadcasting Co. v. Federal Communications Com­
mission, 395 U.S. 367, 379-381. The interpretative value 
of that history is increased here since the language of 
the subsequent enactment “ tracks the language of the 
counsel fee provisions of Titles II  and Y II  of the Civil 
Rights Act of 1964”  (H.R. Rep. No. 94-1558, supra, 
at p. 5), and because Congress indicated so clearly that 
it intended that the “ standards for awarding fees be 
generally the same as under the fee provisions of the 
1964 Civil Rights Act.” S. Rep. No. 94-1011, supra, 
at p. 4. Since the legislative history and statutory pur­
poses of Section 706(k) (see p. 12, supra) support, 
rather than contradict, the interpretation of that sec­
tion that has been adopted by the majority of the 
courts of appeals and by Congress, that interpretation 
should be sustained.

have intended that only “costs,” not attorney’s fees, be awarded 
prevailing defendants in government litigation.

Since Congress, however, has adopted the interpretation of the 
courts of appeals that attorney’s fees may be assessed against the 
government in situations of bad faith, we are not urging a different 
position here.



31

CONCLUSION

The judgment of the court of appeals should be 
affirmed.

Respectfully submitted.
W ade  H. M c C ree , Jr.,

Solicitor General. 
L a w r e n c e  Cl. W a l l a c e , 

Deputy Solicitor General. 
T h o m a s  S . M a r t in ,

Assistant to the Solicitor General.
A b n e r  W .  S ib a l ,

General Co unset,
J o se p h  T. E d d in s ,

Associate General Counsel,
B e a t r ic e  R o sen berg ,

Assistant General Counsel,
W il l ia m  IT. No,

Attorney,
Equal Employment Opportunity Commission. 

S e p t e m b e r  1977.

I! S. GOVERNMENT PRINTING OFFICE: 1977