Saunders v Claytor Petition for Writ of Certiorari
Public Court Documents
December 1, 1980
100 pages
Cite this item
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Brief Collection, LDF Court Filings. Saunders v Claytor Petition for Writ of Certiorari, 1980. e0ad86b6-c39a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/c454ede2-1ad7-4820-824a-07ad16047ca0/saunders-v-claytor-petition-for-writ-of-certiorari. Accessed October 10, 2025.
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No. 80-
In THE
ir tjjm m ' GJmtrt vrt tlir United ^tatea
October T eem, 1980
E tta B. Saunders,
v.
Petitioner,
W illiam Graham Claytoe, Je.,
Secretary of the Navy, et ol.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Jack Greenberg
James M. N abbit, III
Charles Stephen Ralston*
Suite 2030
10 Columbus Circle
New York, New York 10019
H oward Moore, Jr.
Moore & Bell
The London Building
160 Franklin Street
Oakland, California 94607
Attorneys for Petitioner
* Counsel of Record
December, 1980.
Questions Presented
1. Did the Equal Employment Opportunity Act
of 1972, amending T i t l e VII of the C iv i l Rights
Act of 1964, waive the federa l government's
sovereign immunity from suit to enable a federal
worker who proves race discrimination in employ
ment to obtain the same cost of l iv ing adjustments
to a back pay award that a private sector employee
could obtain under T i t l e VII?
P e t i t i o n e r contends that the court o f ap
peal 's holding that the Act did not, conf l icts
with this Court's holdings in Brown v. General
Services Administration, 425 U.S. 820 (1976) and
Chandler v. Roudebush, 425 U.S. 840 (1976).
2. Did the Court of Appeals err in holding
that pet it ioner was ent i t led to only a part ia l
award of counsel fees because she prevailed on
only one part of the case?
Parties
Etta B. Saunders, Pe t i t ioner .
William Graham Claytor, Jr. ,
Secretary of the Navy;
Warren Sel ls ; Alameda Naval Air
Station; J. M. Wolff; Naval Air
Rework Fac i l i t y , Alameda, C a l i f . ,
Respondents
- l
INDEX
Page
Questions Presented ........................................ i
Jurisdiction ............................................. 2
Statutory Provisions Involved ..................... 2
Statement of the Case .................................... 5
Reasons for Granting the Writ ..................... 13
I. THE DECISION OF THE COURT BELOW
RAISES IMPORTANT QUESTIONS
CONCERNING CONGRESSIONAL INTENT
WHEN TITLE VII WAS MADE APPLI
CABLE TO THE FEDERAL GOVERN
MENT AND DIRECTLY CONFLICTS
WITH THE DECISIONS OF THIS
COURT IN CHANDLER V. ROUDEBUBH
and BROWN V. GENERAL SERVICES
ADMINISTRATION ....................... 13
A. Importance of The Issue . . . 13
B. Conflict with Decisions
of This Court ............... 24
I I . THE DECISION BELOW ON COUNSEL
FEES CONFLICTS WITH CLEARLY
STATED CONGRESSIONAL INTENT
AS TO THE STANDARDS GOVERN
ING IN SUCH CASES AND PRE
SENTS AN ISSUE AS TO WHICH THE
CIRCUITS ARE IN CONFLICT .......... 30
Conclusion ............................ 36
Appendix .......................................... la
l i -
TABLE OF AUTHORITIES
Cases:
Albemarle Paper Co. v. Moody, 422 U.S. 405
(1975) ....................................................... 19,29
Alexander v. Gardner-Denver Co., 415 U.S.
36 (1974) ................................................. 16
Blake v. Califano, 626 F.2d 891 (D.C.
1980) ......................................................... 18,30
Brown v. General Services Administration,
425 U.S. 820 (1976) .............................. passim
Cannon v. University of Chicago,
441 U.S. 677 (1979) .............................. 34
Chandler v. Roudebush, 425 U.S 840
(1976) ....................................................... passim
Chewning v. Schlesinger, 471 F. Supp.
767 (D.D.C. 1979) .................................. 18
Davis v. County of Los Angeles, 8
E.P.D. 9444 (D.C. Cali f .
1974) ......................................................... 34,35
de Weever v. United States, 618 F.2d 685
(10th Cir. 1980) ........................ 18
Eastland v. T .V .A . , 553 F.2d 364 (5th
Cir. 1977) ............................................... 17
Page
- i i i -
Page
E.E.O.C. v. Pac i f ic Press Publishing
Assoc., ___ F . Supp. ___ , 21 E.P.D.
30,522 (N.D. Cal i f . 1979) ................. 19
Fischer v. Adams, 572 F .2d 406 (1st
Cir. 1978) ............................................... 18
Franks v. Bowman Transportation Co.,
424 U.S. 747 (1976) .............................. 20,28
Gnotta v. United States, 415 F.2d 1271
(8th Cir. 1969) ...................................... 16
Love v. Pullman Co., 404 U.S 522
(1972) ....................................................... 23
Morton v. Mancari, 417 U.S 535 (1974) . . . . 14
Nadeau v. Helgemoe, 581 F .2d 275
(1st Cir. 1978) ...................................... 36
New York Gaslight Club, Inc. v. Carey,
___ U.S. ____ , 64 L.Ed. 2d 723
(1980) ....................................................... 34
Northcross v. Board of Education of
Memphis City Schools, 611
F. 2d 624 (6th c i r . 1979) ..................... 36
Parker v. Califano, 561 F .2d 320 (D.C.
Cir. 1977) .................. 34
Pettway v. American Cast Iron Pipe
Co., 494 F .2d 211 (5th Cir.
1974) ......................................................... 20
- iv -
Page
Richerson v. Jones, 551 F .2d 918 (3rd
Cir. 1977) ........................................•----- 18
Stanford Daily v. Zurcher, 64 F.R.D.
680 (N.D. Cal. 1974) ............................ 35
United States v. Lee Way Motor Freight,
Inc., 625 F .2d 918 (10th Cir.
1979) ......................................................... 19
United States v. Testan, 424 U.S.
392 (1976) ............................................... 15
Williams v. T .V .A . , 552 F.2d 691
(6th Cir. 1977) ...................................... 17
Statutes:
5 U.S.C. § 7151, 80 Stat. 523 (1966) ........ 14
42 U.S.C. § 1988 .................... 33
42 U.S.C. § 2000e (b ) ...................................... 14
42 U.S.C § 2000e-5 .......................................... passim
42 U.S.C § 2000e-16 ........................................ passim
Other Authorities
CCH Employment Practices, § 5046 ............... 18
- v -
H. Rep. No. 92-238 (1971) ............................ 25
S. Rep. No. 92-415 (1971) ........................ 25
S Rep. No. 94-1011 (1976) ............................. 34
Sub Com. on Labor of the Senate Comm,
on Labor and Public Welfare,
Leg is la t ive History of the Equal
Employment Opportunity Act of 1972
(Comm. Print 1972) ................................. 26
Page
- v i -
No. 80-
In The
SUPREME COURT OF THE UNITED STATES
October Term, 1980
ETTA B. SAUNDERS,
Pet itioner,
v.
WILLIAM GRAHAM CLAYTOR, JR.,
Secretary of the Navy, et a l .,
Respondents.
Pet it ion for A Writ of Certiorari
To The United States Court of Appeals
for the Ninth Circuit
The pet it ioner, Etta B. Saunders, respect
fu l ly prays that a writ of cer t io rar i issue to
review the judgment and opinion o f the United
States Court o f Appeals for the Ninth District
entered in this proceeding on October 3, 1980.
The opinion of the Court of Appeals is reported at
629 F.2d 596 and is set out in the Appendix hereto
- 2 -
at pages l a - l l a . The opinion o f the D is t r i c t
Court o f July 11, 1978 is unreported and is set
out in the Appendix hereto at pages 12a-31a. The
orders o f the D i s t r i c t court dated Oct. 31,
1978, Dec. 12, 1978, Jan. 25, 1979, and March 16,
1979, awarding back pay, counsel fees, and denying
a new t r i a l are unreported and are set out in the
Appendix hereto at pp. 32a-36a; 37a-39a; 40a-43a;
44a-50a; and 51a-52a.
Jurisdiction
The judgment o f the Court o f Appeals was
entered on October 3, 1980. Jurisdiction of this
Court is invoked under 28 U.S.C. § 1254(1).
Statutory Provisions Involved
Sect ion 7 1 7 (b ) , ( c ) , and (d ) o f the Equal
Employment Opportunity Act of 1972, amending T i t le
VII of the 1964 C iv i l Rights Act, § 2000-e~16(b),
( c ) , and (d ), provide, in pertinent part:
3
(b ) Except as otherwise provided in th is
subsection, the C i v i l Serv ice Comission*
shall have authority to enforce the provi
sions o f subsection (a ) o f th is sect ion
through appropriate remedies, including
reinstatement or hiring of employees with or
without back pay, as w i l l e f f e c tu a te the
p o l i c i e s o f th is sec t ion , and sha l l issue
such rules, regulations, orders and instruc
tions as i t deems necessary and appropriate
to carry out i ts responsib i l i t ies under this
sect ion.
* * *
(c ) Within th irty days o f receipt of
notice of f inal action taken by a department,
agency, or unit referred to in subsection (a)
o f th is sect ion , or by the C i v i l Serv ice
Commission upon an appeal from a decision or
order of such department, agency, or unit on
a complaint of discrimination based on race,
co lo r , r e l i g i o n , sex, or nat ional o r i g in ,
brought pursuant to subsection (a) of this
section, Executive Order 11478 or any succeed
ing Executive orders, or a fter one hundred
and e igh ty days from the f i l i n g o f the
j /̂ Under the President's Reorganization Plan
No. 1, of 1978 the functions of the C iv i l Service
Commission under § 717 were trans ferred to
the Equal Employment Opportunity Commission as of
January 1, 1979.
i n i t i a l charge with the department, agency,
or unit or with the C iv i l Service Commission
on appeal from a decision or order of such
department, agency, or unit until such time
as f ina l action may be taken by a department,
agency, or unit, an employee or applicant for
employment, i f aggrieved by the f inal dispo
s it ion of his complaint, or by the fa i lure to
take f i n a l act ion on his complaint, may
f i l e a c i v i l action as provided in section
2000e-5 o f t h i s t i t l e , in which c i v i l
action the head of the department, agency, or
unit, as appropriate, shall be the defendant.
(d) The provisions of section 2000e-
5 ( f ) through (k) of this t i t l e , as applic
able , sha l l govern c i v i l actions brought
hereunder.
Section 706(g) of T i t l e VII of the 1964 C iv i l
Rights Act, 42 U.S.C. § 2000e-5(g ) , prov ides:
(g) I f the court finds that the respon
dent has in t e n t io n a l l y engaged in or is
intentionally engaging in an unlawful employ
ment p rac t i c e charged in the complaint,
the court may en jo in the respondent from
engaging in such unlawful employment prac
t ice , and order such af firmative action as
may be appropriate, which may include, but is
not l imited to, reinstatement or hiring of
employees, with or without back pay (payable
by the employer, employment agency, or labor
- 5 -
organization, as the case may be, responsible
for the unlawful employment pract ice ) , or any
other equ i tab le r e l i e f as the court deems
appropriate. . . .
Section 706(k) o f T i t l e V I I o f the 1964
C iv i l Rights Act, 42 U.S.C. § 2000e-5(k), pro
vides :
In any action or proceeding under this
subchapter the court, in i t s discretion, may
allow the prevail ing 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 sha l l be
l iab le for costs the same as a private person
Public L. 88-352, T i t l e VII , § 706, July 2, 1964,
78 Stat. 259; Pub. L. 92-261, §§ 4, 11, Mar. 24,
1972, 86 Stat. 104.
Statement of the Case —
These are two consolidated actions brought
pursuant to 42 U.S.C. § 2000e-16(c), T i t l e VII
of the C i v i l Rights Act o f 1964 as amended by
Section 717(c) of the Equal Employment Opportunity
1_/ The facts set out herein are based on the
findings of fact o f the d is t r ic t court, which were
not challenged by the government in the court of
appeals.
6
Act of 1972. They were brought on behalf of Mrs.
Etta B. Saunders, a Black woman employed by the
Department of the Navy at the Naval Air Rework
Fac i l i t y , Naval Air Station (NARF/NAS) Alameda,
California.
Mrs. Saunders was hired on a temporary
appointment in November, 1966, as A i r c r a f t
Metal smith Helper at NARF/NAS. By 1968 she had
been given a Career Conditional appointment as an
A ircraft Metals Worker as a Wage Grade, or indus
t r i a l worker, at the WG-8 leve l . In late 1968
Mrs. Saunders applied fo r a promotion to the
position of an A ircra f t Metalsmith at the WG-10
level but did not receive i t . In March, 1971, she
f i l e d a formal complaint of discrimination charg
ing that she had been denied the promotion because
of her sex and race (App., pp. 12a-13a).
On February 6, 1972, the Secretary o f the
Navy held that p la in t i f f had been discriminated
against because of her sex and ordered that she
receive appropriate r e l i e f . As a result, in 1973
she was promoted to the WG-10 level ( Li. , 13a-
14a). In addition to f i l i n g formal and informal
complaints of discrimination on her own behalf,
7
p la in t i f f represented other employees o f NARF in
equal employment opportunity matters and generally
took an active role in attempts to promote equal
employment opportunity on the base. ( I d . , 17a-
23a). On March 19, 1973 p la in t i f f applied for
another promotion to Equal Employment Opportunity
Special ist, a General Schedule position at the
GS-9 le ve l . Four EEO Specialist positions were
adver t ised fo r which 14 persons applied ( I d . ,
14a).
On April 2, 1973, while her application for
the EEO Special ist position was pending, p la in t i f f
was no t i f ied that her employment at NARF would be
terminated e f f e c t i v e June 1, 1973, because
of the abol ition of 108 of the 145 WG-10 Sheet
Metal Mechanics positions, as part of a Reduction
in Force (RIF) (_Id_. , 25a). One week later, on
April 9, 1973, p la in t i f f was not i f ied that she had
been rated ine l ig ib le for the GS-9 EEO Specialist
position even though, as the Distr ict Court found,
she had suff ic ient experience in the area of EEO
work to meet the qualif icat ions established by the
C iv i l Service Commission ( Id . , 17a, 19a).
Only one of the 14 applicants for the posi
tions was found qual i f ied, and the Navy decided
to f i l l the remaining three GS-9 S p e c ia l i s t
positions through an alternative selection method
under which selectees were not required to meet
the educational and experience standards that had
been used to find Mrs. Saunders inelg ible (18a,
20a). As a result a l l four positions were f i l l e d
by men, even though p l a in t i f f was better quali f ied
for the positions than at least two of the men who
were placed in them. Indeed, p l a in t i f f had more
EEO experience that any of the four men selected
(20a, 23a-24a).
The Distr ic t Court found that:
P l a i n t i f f was a h igh ly v i s i b l e and ac t ive
symbol o f equal opportunity at the NARF/NAS.
She. had been the f i r s t female Navy employee
to prevail in a discrimination case. She had
been active throughout her employment as a
EEO rep resen ta t iv e fo r other minority and
female employees (23a).
Therefore, the reasons given for not appointing
her to one of the positions were pretextual, and
9
the real reason was to prevent her from getting
the position and thereby to force her to leave the
base, since her existing job had been eliminted
as a result o f the RIF (24a-25a).
The Court made a spec i f ic finding that the
defendants' actions, "were the result of discrimi
natory and/or reta l ia tory animus", and concluded
that p l a in t i f f had been denied her rights under
T i t l e V I I (25a, 30a). With regard to the RIF
action i t s e l f , the court held that i t had not been
taken in v io la t ion o f T i t l e VII (31a). However,
as noted above, the combined result of the RIF and
the unlawful denial of the EEO position was to
force p l a in t i f f out of her employment and thereby
to get rid of her (24a-25a).
Because of the administrative procedures for
processing complaints of discrimination in e f fect
in 1973, p l a i n t i f f f i l e d separate complaints
regarding the two actions. The processing of the
complaints f inished at d i f ferent times and because
of the 30-day time period for f i l in g a T i t le VII
action against a federal agency, she f i led two
separate complaints in federal court (17a-18a;
27a-28a).
10
The complaints were consol idated fo r a l l
purposes and a single t r ia l was held in 1978. At
the end of the t r ia l the Distr ict Court held, as
described above, that the denial o f the promotion
was a deliberate act of discrimination and repr i
sal and that although the RIF i t s e l f was nondis-
criminatory, the net result was that p la in t i f f
lost a l l employment. The Court further found that
p l a i n t i f f had made every e f f o r t to obtain a
job but was unable to do so. There fore , she
remained unemployed from 1973 until 1979 when she
was re in s ta ted pursuant to the Court 's order.
The court ordered her retroact ive ly appointed
to an EEO specia l ist postion at the GS-7 level
with promotions to the GS-9 and GS-11 levels as of
1974 and 1975. From the base amount o f back pay
which p l a i n t i f f would have rece ived from 1973
to 1979 i f she had not been denied the promotion
was deducted the severance pay and unemployment
2 /insurance benefits she did receive.— . P la in t i f f
2/ The base amount was $92,955.92, from which
was subtracted $4,619.11 in severance pay and
$1,620.00 in unemployment benefits.
11
was also credited with the amount of sick leave
and annual leave which had accumulated at the
time of her termination in 1973 (33a-36a).
After the calculation o f the net back pay the
court determined that i t would be adjusted by
an in f la t ion factor calculated according to United
States Department of Labor cost of l iv ing data to
compensate her in constant dollars to make her
whole for the injury suffered by the discrimina-
3/
t i o n ,— fo r a t o t a l award o f $102,948.52. The
court denied any award of interest, and p la in t i f f
did not appeal from this ruling. In a subsequent
order the Distr ic t Court determined that a reason
able amount of counsel fees and costs would be
$69,015.00 (44a-50a).
The United States did not appeal from the
decision on the merits, but did appeal the amount
awarded as back pay, arguing that the cost of
l iv ing adjustment used in calculating the award
was the same as an award o f interest. Interest
3/ The necessary adjustment was calculated to be
$16,231.72. The government has not disputed the
accuracy o f the amount.
12 -
was barred by sovereign immunity, the government
urged, since T i t l e VII did not expressly provide
for awards of interest against the government.
The defendant also appealed from the counsel fee
award, arguing that no fees should have been
granted fo r the work done on the Reduction in
Force claim because p l a in t i f f had not prevailed on
i t within the meaning o f 42 U.S.C. §2000e-5(k).
The Court o f Appeals ruled in the govern
ment's favo r on both issues, hold ing not only
that f ed e ra l government employees could not
recover interest, but that, because of sovereign
immunity they could not be given any remedy other
than back pay to which p r iva te employees were
enti t led because those remedies were not enumer
ated in the statute.
The doctrine of sovereign immunity d ic
tates that the United States cannot be sued
without I t s consent. The 1972 amendments
to T i t l e VII authorize the remedy o f back pay
for employees of the United States government
who are victims of discrimination. See 42
U.S.C. § 2000e-5(g ) . Although many addi
tional remedies, such as interest on back pay
awards, vacation and sick pay adjustments are
available to private employees, these reme
dies are not available to employees of the
government because neither the 1972 amend
ments nor the incorporated prov is ions o f
T i t l e VII expressly authorizes them.
13
629 F. 2d 596, 598; Appendix , pp. 6a-7a. Taking
into account cost of l iv ing increases in calculat
ing back pay, i t was held, was the same as pre
judgment interest.
With regard to attorneys' fees the Court held
that since the p la in t i f f had not prevailed on the
RIF claim as such, she was not e n t i t l e d to an
award of fees with regard to any time expended on
that aspect o f the l i t i g a t i o n . The Court o f
Appeals therefore reversed the decision of the
d is t r ic t court as to both issues raised by the
government.
Reasons for Granting the Writ
I.
THE DECISION OF THE COURT BELOW RAISES
IMPORTANT QUESTIONS CONCERNING CONGRESSIONAL
INTENT WHEN TITLE VII WAS MADE APPLICABLE TO
THE FEDERAL GOVERNMENT AND DIRECTLY CONFLICTS
WITH THE DECISIONS OF THIS COURT IN CHANDLER
v. ROUDEBUSH and BROWN v. GENERAL SERVICES
ADMINISTRATION.
A. Importance of the Issue
This case is the latest in a series dealing
with the important question of the rights of and
14 -
remedies available to employees of the federal
government who have suffered unlawful discrimina
tion because of their race or sex. See, Brown v .
General Serv ices Adm in is tra t ion , 425 U.S. 820
(1976); Chandler v. Roudebush, 425 .U.S. 840
(1976); Davis v. Passman, 442 U.S. 228 (1979).
The common issue is Congress' in tent when i t
enacted § 717 of the Equal Employment Opportunity
Act of 1972. I t s r eso lu t ion w i l l a f f e c t the
rights of millions of federal employees for whose
benef it the statute was enacted.
When Congress enacted the C iv i l Rights Act of
1964 i t excluded the United States from the
def in it ion of employer in section 701(b) (42 U.S.C
§ 2000e(b). The section did, however, provide
that the pol icy of the federal government was to
make its employment decisions free of discrimina
tion, and gave the President broad authority to
4/
implement that pol icy.- As a result, the United
4/ 78 Stat. 254 (1964); 5 U.S.C. § 7151, 80
Stat. 523 (1966); see, Morton v. Mancari, 417 U.S.
535, 546 (1974).
15
States C iv i l Service Commission was given adminis
trat ive authority to enforce non-discrimination
throughout fed e ra l employment by executive
orders.
By 1971, however, there was great dissat is
faction with the Commission's record in carrying
out its duties. A central problem resulted from
questions as to the Commission's authority to
require the f u l l remedies, p a r t i c u la r l y back
pay, necessary to carry out i t s mandate. The
Commission's s t a f f t e s t i f i e d be fore Congress
that the Comptroller General had ruled that in
the absence of statutory authority the Commission
could not order payment of back pay to federal
employees where there had been a denia l o f a
promotion, as opposed to a d ischarge .— C f . ,
United States v. Testan, 424 U.S. 392 (1976).
Congress was further concerned whether
sovereign immunity precluded any judic ia l remedy
5/ Testimony of Irving Kator, Assistant Execu
tive Director, United States C iv i l Service Commis
sion, Hearings Before the General Subcommittee on
Labor of the Committee on Education and Labor,
House of Representative, on H.R. 1746, Washington,
D.C., March 3, 4, 18, 1971, at p. 365.
- 16
for federal government employment discrimination
in l ight of decisions such as Gnotta v. United
States, 415 F.2d 1271 (8th Cir. 1969). See, Brown
v. General Services Administration, 425 U.S. at
826-828. F in a l l y , Congress had the o v e ra l l
concern that federal employees did not have the
same rights and remedies available to them as did
a l l other employees faced with discrimination.
Chandler v. Roudebush, 425 U.S. at 841.
Following the enactment of the Equal Employ
ment Opportunity Act of 1972 (42 U.S.C. § 2000e-
16), the federal government strenuously argued
i t s employees were not e n t i t l e d to the same
procedural and substantive r igh ts as were a l l
other employees. The central issues concerned the
rights to a t r i a l de_ novo and to maintain class
actions. These arguments were seemingly laid to
rest by th is Court 's dec is ion in Chandler v .
Roudebush, supra, which held that the basic
purpose o f the 1972 Amendments was to grant
to f ed e ra l employees the same r igh ts as those
enjoyed by a l l other employees, and spec i f ica l ly
held that they were enti tled to the same t r ia l de
novo as other employees were under Alexander
v. Gardner-Denver Co., 415 U.S. 36 (1974).
17
Following Chandler, the lower federal courts held
that c lass actions could a lso be maintained
against federal government agencies. See, e . g .,
Eastland v. T.V.A. , 553 F.2d 364 (5th Cir. 1977);
Williams v. T .V.A. , 552 F .2d 691 (6th Cir. 1977).
F in a l l y , on August 31, 1977, the Attorney
General o f the United States issued a memorandum
to a l l United States attorneys and agency general
counsel announcing that the pol icy of the United
States would thereafter be to acquiesce in these
rulings and that spec i f ica l ly :
. . . [ t ]he Department w i l l not urge
arguments that rely upon the unique role of
the Federal Government. For example, the
Department recognizes that the same kinds of
r e l i e f should be a va i lab le against the
Federal Government as courts have found
appropriate in private sector cases, includ
ing imposition of af f irmative action plans,
back pay and attorney's fees. See Copeland
v. Usery, 13 EPD f 11,434 (D.D.C. 1976); Day
v. Mathews, 530 F.2d 1083 (D.C. Cir. 1976);
Sperling v. United States, 515 F.2d 465 (3d
Cir. 1975). Thus, while the Department might
oppose particular remedies in a given case,
i t w i l l not urge that d i f ferent standards be
applied in cases against the Federal Govern-
- 18 -
ment than are applied in other cases .—
After only a r e la t iv e ly short period, how
ever , in the face of the d i r e c t i v e from the
Attorney General and rulings o f this and other
courts , government attorneys resumed making
arguments that federal employeres were ent i t led to
fewer protections than others. In particular,
objections were raised in a number of cases to
the awarding o f in te r e s t and cost o f l i v i n g
adjustments to back pay on the ground that such
r e l i e f was barred by sovereign immunity. See,
Blake v. C a l i f a n o , 626 F . 2d 891 (D.C. 1980);
Chewning v. Schlesinger, 471 F. Supp. 767 (D.D.C.
1979); F ischer v . Adams , 572 F . 2d 406 (1st
Cir. 1978); Ric'herson v. Jones, 551 F.2d 918 (3rd
Cir. 1977); de Weever v. United States, 618 F.2d
685 (10th Cir. 1980).
At no time did the government argue that such
remedies were not necessary to make federal employ
ees whole for the e f fec ts of discrimination. In
6/ The fu l l text of the memorandum is reported
in CCH Employment P ra c t i c e s , f 5046. I t is
reproduced in the appendix hereto at pp.53a-55a.
19 -
the present case, for example, the respondent did
not challenge the d is t r ic t court's f inding that
the use of cost of l iv ing factor in calculating
back pay was "necessary to assure compensation in
'constant do l la rs ' " (App., p. 34a); nor did the
government challenge the accuracy of the amount
needed to make p l a in t i f f whole. Indeed, for years
the government has rou t in e ly asked fo r , and
received, adjustments to back pay to compensate
for the e f fec ts of in f la t ion when i t has been the
p la in t i f f in T i t l e VII cases. See; e . g . , United
States v. Lee Way Motor Freight, Inc., 625 F.2d
918, 940 (10th Cir. 1979); E.E.O.C, v. Paci f ic Press
Publishing Assoc., F. Supp. , 21 E.P.D.
1 30,522, pp. 13,829-13,830 (N.D. Cal i f . 1979).
The government has a lso not disputed that
such r e l i e f is mandated by this Court's decision
in Albemarle Paper Co. v. Moody, 422 U.S 405
(1975). As the Court explained:
2] The government has also successfully argued
that damage awards against i t fo r lo s t future
wages should be discounted to take into account
the e f fects o f future in f lat ion when i t has been
the defendant in Federal Tort Claims Act. United
States v. Eng l ish , 521 F . 2d 63, 76 (9th C ir .
1975); Steckler v. United States, 549 F . 2d 1372,
1377-78 (10th Cir. 1977).
20
I t is also the purpose of T i t l e VII to make
persons whole fo r in ju r i e s su f fe red on
account o f unlawful unemployment discrimina
t ion . . . . Where r a c i a l d iscr im inat ion is
concerned, " the [ d i s t r i c t ] court has not
merely the power but the duty to render
a decree which w i l l so far as possible elim
inate the d iscr im inatory e f f e c t s o f the
pas t . . . . "
442 U.S at 418. Spec i f ica l ly , where the injury is
of an economic character, the Court held that:
. . . "The injured party is to be placed, as
near as may be, in the s i tua t ion he would
have occupied i f the wrong had not been
committed." Wicher v. Hoppoch, 6 Wall
94, 99 (1867).
8 /
422 U.S. at 418-19.- Here, as the d i s t r i c t
court found, the p l a i n t i f f could only be made
8/ See also, Franks v. Bowman Transportation
Co. , 424 U.S 747, 763-66 (1976), holding that a
grant of r e t r o a c t i v e s e n i o r i t y needed to make
discriminatees whole was permissible even though
such r e l i e f was not spec i f i ca l ly authorized by
§ 2Q00e—5 (g ) . Simil a r ly , as the court below
recognized, many courts have granted other kinds
o f r e l i e f such as vacat ion and sick pay and
adjustments to pension rights. See, e .g ., Pettway
v. American Cast Iron Pipe Co., 494 F . 2d 211, 263
(5th Cir. 1974), and cases cited there at notes
155 and 156.
21
whole by putting her in the same position as i f
she had received her wages in the years they were
due.
I t is only because Mrs. Saunder's employer is
the federal government that the fu l l r e l i e f to
which she would otherwise be c learly ent i t led is
not forthcoming. Pet it ioner urges that this case
presents an unusually egregious instance of the
in ju s t i c e that resu l ts from the government's
arguments and presents a question o f v i t a l impor
tance to a l l federal employees and indeed to the
e f f e c t iv e enforcement of one of the most important
of the c i v i l rights statutes.
Mrs. Saunders su f fe red the most inv id ious
type of v io la t ion of T i t l e VII , a deliberate act
of discrimination and reprisal because she at
tempted to assert her and others' rights under the
Constitution and laws of the United States to be
free of unlawful discrimination. As a result of
the deliberate actions of persons motivated by
a desire to get rid of her as a troublemaker, she
was without employment fo r s ix years. She
suffered the loss of $86,716 income, but she could
not be fu l ly recompensed for her loss by paying
- 22
her that amount of money years a fter she had been
wrongfully denied i t . The Distr ict Court found
(and the government has not challenged th is
f ind ing ) that in order to make the p l a i n t i f f
whole, that is , to place her "as near as pos-
s ib i l e " in the financial "s ituat ion [she] would
have occupied i f the wrong had not been committed"
the back pay award must be adjusted to take into
account the e f fec t of in f lat ion.
The injust ice to Mrs. Saunders is compounded
in the present case because although the govern
ment does not contest the correctness o f the
underlying back pay award i t has not, as of the
date of the f i l i n g of this pet i t ion, paid i t to
her. The General Accounting Off ice has taken the
pos i t ion that since the government has had an
appeal pending, the judgment is not f ina l , and has
not allowed payment. Thus, in the time since the
judgment was entered in her fa vo r , the value
of the award to her has decreased from $86,716 to
23
$74,315.61 because of i n f l a t i o n . — According
to the government and the court below this loss
w i l l never be made up to her.
I f the ruling below is allowed to stand, not
only w i l l Mrs. Saunders and a l l other federa l
employees who have been found to have been the
vict ims of d e l ib e ra te d iscr im inat ion su f fe r
permanent and irremediable damage, but the law
i t s e l f w i l l suffer serious injury. The District
Court found that Mrs. Saunders was the victim of
an act o f r ep r i s a l fo r her seeking to enforce
r igh ts under the an t i -d isc r im ina t ion laws.
Those laws depend on individual employees being
w i l l i n g to come forward, f i l e complaints, and
assist others in seeking the vindication of their
. , 1.0/
r ights.— I f they can be subjected to acts of
reprisal that can never be fu l ly recompensed, the
only result w i l l be an incalculably detrimental
impact on the enforcement of the law.
9 /
9/ The Consumer Price Index was 217.7 in 1979
and was 253.9 in October, 1980. Therefore, the
dol lar had decreased in value by 85.7% in that
period.
10/ See, Love v. Pullman Co., 404 U.S. 522
(1972).
24
For a l l of these reasons, the present case
presents issues of the utmost importance for the
continuing v i a b i l i t y o f T i t l e V I I as a remedy
against d isc r im inat ion by fed e ra l government
agencies. As we w i l l show, the result reached by
the court below is in square conf l ic t with the
in tent o f Congress and with dec is ions o f th is
Court.
B. C o n f l i c t with Decisions o f th is Court
As described in d e t a i l in Brown v. GSA,
425 U.S. at 825-828, one of the primary concerns
of Congress in 1972 was whether federal employees
had e f f e c t iv e administrative and judic ia l remedies
for employment discrimination. The Court noted
that :
i t was doubtful that back pay o_r other
compensatory r e l i e f fo r employment d i s
crimination was a va i lab le . . . .
I d . at 826.
I t was precisely because of arguments based
on sovereign immunity that the Congressional
committees concluded that even i f judic ia l review
was available, "some forms of r e l i e f were fore
closed". Thus,
- 25
[t ]he Senate Report observed: "The testimony
of the C iv i l Service Commission notwithstand
ing, the committee found that an aggreived
Federal employee does not have access to the
courts . In many cases, the employee must
overcome a U.S. Government defense of sover
eign immunity or fai lure to exhaust adminis
trat ive remedies with no certainty as to the
steps required to exhaust such remedies.
Moreover, the remedial authority of the Com
mission and the courts has also been in
doubt. " S. Rep. No. 92-415, p. 16 (1971).
425 U.S at 827-828.— ̂ There fore , the Court
concluded, Congress was fu l ly aware that in the
past sovereign immunity had been a bar to federal
employees obtaining fu l l r e l i e f .
Congress' intention that a l l such bars would
be removed by the 1972 enactment is equally clear.
With regard to the powers of the Civ i l Service
Commission the House-Senate Conference Com
m i t t e e 's sec t ion -by -sec t ion analysis o f the
Act states:
The C iv i l Service Commission would be author
ized to grant appropriate remedies which may
U./ See also H. Rep. No. 92-238, p. 25 (1971 ),
quoted at 425 U.S. at 828.
26
include, but are not limited t o , back pay for
aggr ieved appl icants or employees. Any
remedy needed to f u l l y recompense the em
p lo y e e f o r h is l o s s , both f in a n c ia l and
professional, is considered appropriate under
th is subsection. (emphasis added). 12/
That the courts were to have remedial power
as broad as that given to the Commission is also
evident. Congress' way of reaching this result
was simple; federal employee T i t l e VII actions
were to be governed by precise ly those provisions
that govern private employer suits. As the Senate
report states:
12/ Sub. Com. on Labor of the Senate Comm, on
Labor and Public Welfare, Leg is la t ive History of
the Equal Employment Opportunity Act o f 1972
(Comm. Pr int 1 972 ) (h e r e in a f t e r " L e g i s l a t i v e
H i s t o r y " ) , p. 1851. S im i la r l y , the Senate
Report States:
[T]he provision in section 717(b) for
applying "appropriate remedies" is intended
to strengthen the enforcement powers of the
C iv i l Service Commission by providing statu
tory author i ty and support f o r ordering
whatever remedies or actions by Federal
agencies are needed to ensure equal employ
ment opportunity in Federal employment....
27
Aggrieved employees or applicants w i l l also
have the fu l l rights available in the courts
as are granted to individuals in the private
sector under T i t l e VII. 13/ *
This was ensured by s p e c i f i c a l l y s ta t ing in
§ 717(d) (42 U.S.C. § 2000e-16(d) ) that c i v i l
actions f i l e d by federal employees were governed
by the private sector sections of the Act, thus
according " federal employees the same r igh t [s ] "
enjoyed by a l l other employees. Chandler v.
Roudebush, 425 U.S 840, 848 (1976).
As this Court held in Brown:
Sections 706 ( f ) through (k ) , 42 U.S.C.
§§ 2 0 0 0 e - 5 ( f ) through 2000e -5 (k ) . . . .
which are incorporated "as app l icab le " by
12/ continued
The Commission is to provide Federal agencies
with necessary guidance and authority to
ef fectuate necessary remedies in invididual
cases, inc luding the award o f back pay,
re instatement or h i r in g , and immediate
promotion where appropriate.
Legis lat ive History at 424.
13/ Leg is la t ive History at 425.
28
§ 717(d), govern such issues as venue, the
appointment of attorneys, attorneys' fees,
and the scope of r e l i e f .
14/
425 U.S. at 832 (emphasis added) .— Section
706(g) i t s e l f is, of course, not limited in any
way to back pay; to the contrary, i t provides that
the court may order r e l i e f , "as may be appropri
ate, which may include, but is not limited to, . . .
back pay . . . or any other equ i tab le r e l i e f as
the court deems appropriate." (Emphasis added.)
As th is Court noted in Franks v. Bowman
Transportation Co. , 424 U.S. 747, 763-64, n. 21
(1976), the phrase "any other equitable r e l i e f "
was added to 706(g) by Congress in the 1972 Act,
which also made the section applicable to federal
14/ As the Court explained in Chandler, the only
l im i t in g language in § 717(d), the phrase "as
ap p l i c a b le " , did no more than r e f l e c t "the
inappl icabi l i ty of provisions in §§ 706(f) through
(k) detail ing the enforcement responsib i l i t ies of
the EEOC and the Attorney general", (425 U.S at
847) and did not in any way l im i t the r igh ts
available to federal employees in court.
2 9
agencies, to confirm the courts' power to e f fect
complete r e s t i t u t i o n , "making whole inso far
as possible the victims of racia l discrimination."
424 U.S. at 764.
Here, o f course, the d i s t r i c t court found
that a cost of l iv ing adjustment in the back pay
award was both : appropriate and necessary to
afford complete r e l i e f , and neither the government
nor the court o f appeals has contested that
conclusion. Instead they have decided that i t may
not be awarded to Mrs. Saunders sole ly because she
is employed by a federal agency. Her position is
simple; section 717 was intended to be a complete
and tota l waiver o f sovereign immunity so that a
federal agency is on precisely the same footing as
any other employer. The decision below holding
otherwise is contrary to the plain meaning of the
s ta tu te , c l ea r congressional in ten t , and the
decisions of this Court, none of which are even
15/cited, le t alone discussed, in i ts opinion.——
15/ Indeed, none of the decisions of the courts
of appeals ruling on the issues of cost of l iv ing
or interest awards even mention Albemarle, Franks,
30
This Court should grant c e r t i o r a r i to reso lve
these conf l ic ts and decide the important issues
presented by this case.
I I .
THE DECISION BELOW ON COUNSEL FEES CONFLICTS
WITH CLEARLY STATED CONGRESSIONAL INTENT AS
TO THE STANDARDS GOVERNING IN SUCH CASES,
AND PRESENTS AN -ISSUE AS TO WHICH THE CIR
CUITS ARE IN CONFLICT.
The counsel fees issue presented by this case
is an important and recurr ing one which has
resulted in a div is ion between the c ircuits : to
what extent should a p r e v a i l in g p l a i n t i f f ' s
counsel fees be reduced i f he or she has not
p reva i led in a l l aspects o f the l i t i g a t i o n ?
In c i v i l rights l i t i g a t ion , and particularly
in employment discrimination cases, issues are
overlapping and intertwined. In order to rep-
15/ continued
Brown, or Chandler, or discuss in any meaningful
way the l e g i s l a t i v e h is to ry o f the 1972 Act.
These matters were briefed in the present case and
in Blake v. Ca l i fano , 626 F .2d 891 (D.C. Cir .
1980).
31
resent a c l i e n t adequately an attorney must
explore fu l ly every aspect of a case, develop a l l
evidence and present i t to the court. In many
cases the p l a in t i f f w i l l not be successful with
regard to every contention.
The present case is a p a r t i c u la r l y good
<4 ex amp 1 e of such a s i tua t ion . There was in
fact one central issue in the case, v i z . , why had
p la in t i f f lost her employment at the Naval Air
Rework Fac i l i ty? This came about because of the
conjunction of two events that occurred within
a week of each other. Ms. Saunders was informed
on Apri l 2, 1973, that she would be terminated
because of a RIF, and on April 9, 1973, she was
n o t i f i e d that she would not be considered fo r
another position that would have allowed her to
remain. Naturally, she suspected some connection
between the two events, particularly in l ight of
her prior EEO ac t iv i t i e s .
In Apri l , 1973, of course, p l a in t i f f had no
way of knowing whether the denial of the promo
t ion , the RIF, or both, had discr im inatory
motives. There fore , she had no choice but to
32
challenge both actions. Because of the structure
of the C iv i l Service Commission regulatory scheme,
there were two separate administrative proceedings
that ended at d i f ferent times. Thus, instead of
there being one lawsuit f i l e d , p l a in t i f f had to
f i l e two at d i f f e r e n t times. Since the two
actions involved the same issue— the termination
of her employment— they were consol idated and
tr ied as one action. The interrelationship of the
RIF and the promotion denial meant that counsel
worked on them at the same time.
P l a i n t i f f ' s suspicion that there was a
relationship between the RIF and the promotion
denial proved correct. The d is t r ic t court held
that the refusal to consider her for the promotion
that would have allowed her to stay was to
prevent her from getting the job and thereby to
force her to leave the Base as a result of the
RIF.
Although the RIF i t s e l f was not the result of
discrimination, i t was seized upon by the dis
criminating o f f i c i a l s as the way to get rid of
33
the p l a in t i f f when they denied her the promotion.
Thus, in every sense of the word, p l a i n t i f f
prevailed on the central claim in the case— that
she was forced to leave the base because o f
"discriminatory and/or re ta l ia tory animus."— 7.
The in t e r r e la t i o n sh ip o f issues in c i v i l
rights cases was recognized by Congress when i t
passed the C iv i l Rights Attorneys' Fee Act of 1976
(42 U.S.C. § 1988). Thus, the leg is la t iv e history
of that statute makes i t clear that counsel fees
awards should not be based on the proport ion
of the case that has been won.— The Senate
Report on the Act discusses the standards which
should be used in determining counsel fee amounts
and states:
16/ I t is interesting to note that even i f the
d is t r ic t court had found the RIF, in and of i t s e l f ,
to be a v io la t ion of T i t l e VII , p la in t i f f would
have received no more r e l i e f than she did as a
result of winning on her promotion claim. The RIF
did not take e f f e c t u n t i l June 1, 1973, a f t e r
April 30, 1973, the e f fe c t iv e date of the promo
tion which she retroact ive ly received.
17/ This Court has held that the leg is la t ive
h is to ry o f the 1976 act may be looked to in
interpreting the paral le l counsel fees provision
34
The appropriate standards, see Johnson v .
Georgia Highway Express, 488 F, 2d 7l4 (5th
Cir . 1974), are c o r r e c t l y applied in such
cases as Stanford Daily v, Zurcher, 64 F.R.D.
680 (N.D. Cal. 1974); Davis v. County of Los
Angeles, 8 E.P.D. 9444 (D.C. C a l i f ! 1974);
and Swann v. Charlotte-Mecklenburg Board of
Education, 66 F.R.D. 483 (W.D.N.C. 1975).
. . . . In computing the f e e , counsel fo r
p r e va i l in g pa r t ie s should be paid, as is
tradit ional with attorneys compensated by a
fee-paying c l ien t , " fo r a l l time reasonably
expended on a matter," Davis, supra, Stanford
Dai ly , supra, at 684.
S. Rep. No. 94-1011 (94th Cong. 2d Sess.), p. 6.
The quoted language from Davis re la tes
d irec t ly to the question of proportionate fees.
I t a lso is not l e g a l l y r e levan t that
p l a i n t i f f s ' counsel expended a cer ta in
l im i ted amount o f time pursuing c e r ta in
issues of fact and law that ultimately did
not become l i t iga ted issues in the case or
17/ continued.
in T i t l e V I I . New York Gasl ight Club, Inc v.
Carey, ____ U.S. ____, 64 L.Ed.2d 7 23 , 738 n.9
(1980). See a lso , Cannon v. U n ive rs i ty o f
Chicago, 441 U.S. 677, 686, n. 7 (1979); Parker
v. Califano, 561 F . 2d 320, 339 (D.C. Cir. 1977).
35
upon which p l a i n t i f f s u l t im a te ly did not
prevail . Since p la in t i f f s prevailed on the
merits and achieved excellent results for the
represented class, p l a in t i f f s ' counsel are
e n t i t l e d to an award o f fees f o r a l l time
r e a son a b ly expended in pu rsu i t o f the
ultimate result achieved in the same manner
that an attorney trad it ional ly is compensated
by a fee-paying client for a l l time reason
ably expended on a matter.
8 EPD 9444, p. 5049. S im i la r ly , in Stanford
„ 18 .
D a i l y ,— at the page c i t ed m the l e g i s l a t i v e
history, the d is t r ic t court rejected the position
taken by some federal courts, "that hours spent on
the l i t i g a t ion of unsuccessful claims should be
deducted from the number of hours upon which an
attorneys' fee award is computed," and followed
other decisions that, "adopting a d i f ferent tack,
deny fees for clearly merit less claims but grant
fees f o r lega l work reasonably ca lcu lated to
advance their c l i en ts ' in terests . " 64 F.R.D. at
684.
The question of the extent to which a pre
va i l ing party's fees must be apportioned between
issues won and lost has caused div is ion among the
18/ A f f 'd 550 F .2d 464 (9th Cir. 1977), rev'd on
other grounds, 436 U.S 547 (1978).
3 6
circuits , ranging in holdings that fees should be
granted for a l l work reasonably done and denied
only for frivolous claims (Northcross v. Bd. of
Ed., 611 F.2d 624 (6th Cir. 1979)), to holding
that fees may only be given for that part of the
case that was won (Nadeau v. Helgemoe, 581 F.2d
275 (1st C ir . 1978)). I t is a recurr ing and
important question in c i v i l rights l i t i g a t i o n in
general and should be reso lved by th is Court.
CONCLUSION
For the foregoing reasons, the pet i t ion for a
wr i t o f c e r t i o r a r i should be granted and the
decision of the court below reversed.
JACK GREENBERG
JAMES M. NABRIT, I I I
CHARLES STEPHEN RALSTON
Suite 2030
10 Columbus Circle
New York, New York 10019
HOWARD MOORE, JR.
Moore & Bell
The London Building
160 Franklin Street
Oakland, California 94607
Attorneys for Petitoner
December, 1980.
APPENDIX
DECISION OF THE COURT OF APPEALS,
OCT. 3, 1980
No. 79-4373
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ETTA B. SAUNDERS,
P la int i f f -Appel lee ,
v.
WILLIAM GRAHAM CLAYTOR, JR.,
Secretary of the Navy, et a l . ,
Defendants-Appellants.
On Appeal from the United States Distr ic t
Court for the Northern Distr ict of California
OPINION
Before: ANDERSON AND ALARCON, Circuit Judges, and
WILLIAMS, Distr ict Judge.*
WILLIAMS, Distr ict Judge:
* the Honorable David W. Williams, United
States Distr ict Judge for the Central Distr ict of
Cali fornia, s i t t ing by designation.
- 2a -
This case presents the fol lowing questions on
appeal, (1) whether the d is t r ic t court 's award of
a "cost of l iv ing in f la t ion factor" adjustment in
addition to a back pay award against the United
States under T i t l e VII is barred by the doctrine
of Sovereign immunity; and (2) whether the d is
t r i c t court erred in awarding attorneys' fees for
a l l work performed by p l a i n t i f f ' s counsel in two
consolidated T i t l e VII cases even though p l a in t i f f
prevailed in only one of them.
P l a i n t i f f Etta Saunders, a Negro female,
brought two employment d isc r im ina t ion suits
against the Secretary of the Navy and others under
T i t l e V I I , 42 U.S.C. §§ 2000e et s e q . In the
f i r s t action (CV 73—2241 WHO), she contested her
removal from employment as a result o f a reduction
in force (RIF). In the second action (CV 74-1286
WHO), she challenged her denial o f e l i g i b i l i t y for
the p o s i t ion o f Equal Employment Opportunity
Spec ia l is t .
P l a i n t i f f was employed at the Naval A i r
Rework F a c i l i t y as an A i r c r a f t Metalsmith, a
position she had obtained as a result o f deter
mination by the Navy Department in 1968 that
she had been denied promotion on the basis of sex
- 3a -
d iscr im ina t ion . In March o f 1973, p l a i n t i f f
applied fo r the pos i t ion o f Equal Employment
Opportunity (EEO) Special ist but was rated in
e l i g ib l e for that position. At approximately the
same time, she was also told that because of a
reduction in force of 108 positions, her employ
ment as A ircra f t Metalsmith would be terminated.
One of p l a in t i f f ' s fe l low employees f i l e d an
Adm in is tra t ive appeal on beha l f o f h imse l f ,
p l a in t i f f , and the other employees affected by the
RIF. P l a i n t i f f as an ind iv idua l f i l e d an EEO
complaint with the Navy Department al leging that
the RIF was based on race and sex discrimination
against her. The Navy Department upheld the
RIF, and p l a in t i f f then f i l e d a complaint against
the Navy in d i s t r i c t court under T i t l e V I I .
P l a in t i f f also f i l e d an EEO complaint with
the Navy a lleging that her i n e l i g i b i l i t y rating
for the EEO Specialist position was based on race
and sex d isc r im ina t ion . The Navy Department
upheld the rating. P l a in t i f f la ter f i l ed a second
complaint under T i t l e VII challenging the Navy's
denial o f her app l ica t ion fo r the pos i t ion .
- 4 a
The two cases were conso l idated and t r i e d
together. The d is t r i c t court held that p l a in t i f f
had not demonstrated " that she was RIFed in
re ta l ia t ion for having opposed alleged discrimina
tory employment practices and/or having f i l e d (in
1968) a complaint against the agency" or "that she
was RIFed on the grounds o f her sex (female) or
her r a c e . " However, the court a lso held that
p l a in t i f f had proven "that she ws rated ine l ig ib le
f o r the p o s i t ion o f EEO S p e c i a l i s t , GS-9, in
ra ta l ia t ion for her opposition to unlawful employ
ment practices and/or for having f i l ed a complaint
of unlawful (employment) discrimination against
the agency" as w e l l as "on the grounds o f her
sex."
On October 31, 1978, the court ordered that
p l a i n t i f f be promoted to the po s i t ion of EEO
Special ist at the leve l of GS-11, the same leve l
that she would most l ik e ly have attained had she
been hired for that position on Apri l 30, 1973.
P l a i n t i f f was awarded back pay o f $92,955.92,
which supposedly included amounts she would
have received for promotions and appropriate step
increases. C i t ing Richerson v. Jones, 551
- 5a
F.2d 918, 925 (3d Cir. 1977), the court denied
interest on the back pay award.
In addition to back pay, the court awarded a
"cost o f l i v i n g i n f l a t i o n f a c t o r " adjustment
amounting to $16,231.72 due through July o f 1978.
In its order the court stated that this award was
necessary to assure compensation in "constant
dollars" because calculation of p l a in t i f f ' s back
pay award would be based upon federa l sa lary
schedules in e f f e c t during prior years.
The court also awarded p l a in t i f f $69,015 in
a t to rneys ' fees under 42 U.S.C. § 2000e-5(k)
for a l l work performed by counsel on both cases.
The Cert i f ica te of Counsel in Support of Request
fo r A t to rneys ' Fees submitted by p l a i n t i f f ' s
attorney did not contain a breakdown of how much
time was spent on each case.
The Navy appealed from this judgment chal
lenging only the in f l a t i o n fa c to r adjustment
and the attorneys' fees award.
INFLATION FACTOR AWARD
The d is t r i c t court should be reversed on its
"cost of l iv ing in f la t ion factor" adjustment. It
- 6a -
is important f i r s t to ident i fy precisely the nature
of this award. The d is t r i c t court sought to make
p l a in t i f f whole by placing her in the same posi
tion she would have attained had she been hired as
an EEO Special is t on April 30, 1973. According to
the court ’ s order of October 31, 1978, the court
assumed entry into the Specia l ist position at the
GS-7 l e v e l , promotion to GS-9 a f t e r one year,
promotion to GS-11 a f t e r a second year , and
appropriate step increases to the time of judg
ment. The calculation o f back pay was based on
salary schedules in e f f e c t during each o f those
years. The c a lcu la t ion included amounts f o r
promotions, raises, and step increases, a l l of
which presumably already re f lec ted any cost of
l iv ing adjustment. Over and above this back pay
award, the court awarded an additional in f la t ion
factor adjustment, which i t explained as "neces
sary to assure compensation in 'constant do l la rs ' ,
because calculation o f p l a i n t i f f ' s back pay award
(would) be based upon federal salary schedules in
e f fe c t during pr ior years."
The doctrine of Sovereign immunity dictates
that, the United States cannot be sued without its
consent. The 1972 amendments to T i t l e VII author
7a
ize the remedy o f back pay for employees o f the
United States government who are v ic t ims of
d isc r im ina t ion . See 42 U.S.C. § 2000e-5 (g ) .
Although many additional remedies, such as in
terest on back pay awards, vacation and sick pay
adjustments are available to private employees,
these remedies are not available to employees of
the government because neither the 1972 amendments
nor the incorporated prov is ions o f T i t l e V I I
expressly authorizes them. I t is well sett led
case law that an award of interest on back pay is
not a v a i la b le to government employees absent
express statutory or contractural authorization.
United States v. Alcea Band of Tillamooks, 341
U.S. 48, 49 (1951); Fischer v. Adams, 572 F.2d
406, 411 (1st Cir. 1978); Richerson v. Jones, 551
F.2d 918 (3d Cir. 1977).
The i n f l a t i o n fa c to r in th is case is very
similar to an award of interest in that both types
of awards are meant to compensate the victim for
the be la ted r e c e ip t o f employment pay. The
in f la t ion factor adjustment is actually better
compensation than an award of interest since the
normal 7% interest award would not in these times
- 8 a -
make up fo r the double d i g i t i n f l a t i o n . In
essence, the i n f l a t i o n f a c to r adjustment is a
disguised interest award, which is not permitted
under present law.
The Case of Blake v, Califano, No. 78-2075
(D.C. Cir. Jan. 30, 1980) and Chewning v. Schle-
s inger, 471 F. Supp. 767, 777 (D.D.C. 1979), held
that an in f la t ion factor award added to a back pay
award against the government was an indirect award
of interest and therefore barred by the doctrine
of Sovereign immunity.
The case c i t ed by the d i s t r i c t court in
support of i ts in f la t ion factor award, Lockheed
Minority Sol idar ity Coalition v. Lockheed Missiles
& Space Co. , 406 F. Supp. 828, 834 (N.D. Cal.
1976 ), is inappos ite . I t does not address
the issue of an in f la t ion factor adjustment but
rather is a case on a t to rneys ' fees against a
p r iva te l i t i g a n t , and i t does not the re fo re
involve the issue o f Sovereign immunity.
Appellee re l i e s on a pol icy statement issued
in 1977 by former Attorney General G r i f f i n
Bel l to a l l United States Attorneys and agency
general counsel. Appe l lee contends that this
9a
statement supports the general p r in c ip l e that
T i t l e VII cases against the United States are to
be t rea ted the same as p r iva te sec tor cases.
Appe l lee also r e l i e s on the 1972 amendments
to T i t l e VII which gave broad new powers to the
C i v i l Serv ice Commission to provide whatever
remedies or act ion are needed to ensure equal
employment opportunity in f ed e ra l employment.
42 U.S.C. § 2000e-16(b). She argues that Congress
intended to confer g r e a t l y enhanced r igh ts on
federal employees to obtain administrative and
jud ic ia l r e l i e f against their federal employer and
that the inc lus ion by courts o f an i n f l a c t i o n
factor award among the available remedies would
further that Congressional intent. These argu
ments miss the mark. Neither the pol icy statement
o f the United States Attorney General nor the
broad powers con ferred on the C i v i l Serv ice
Commission amount to the express waiver of
Sovereign immunity necessary to ju s t i f y an award
of interest.
ATTORNEYS' FEES
We find that the t r i a l court erred by award
ing attorneys ' fees for both the RIF and the EEO
- 10a -
cases. I t is undisputed that the p l a i n t i f f
prevailed in but one of them. I t is a stretch of
Congressional intent to hold that there existed
such an identity of issues in the two suits that
p l a i n t i f f ' s attorneys research and work in each
case should be compensated.
Since Alyeska Pipeline Service Co. v. Wilder
ness Society, 421 U.S. 240 (1975) courts no longer
should apply h i s t o r i c a l equ i tab le powers to
ju s t i f y a fee award in a so-called private attor
ney general case. Following Alyeska, Congress
enacted the C iv i l Rights Attorney's Fees Awards
Act of 1976 (42 U.S.C. § 1988) and now such an
award is the exe rc is e o f a s ta tu to ry remedy.
Saunders had two separate pieces o f l i t i g a
tion 'which were consolidated for t r i a l purposes.
She lost the RIF case. No issue raised in that
case was susta ined. She p r e va i l ed in the EEO
case. This is the only case in which i t is proper
under the mandate of Congress to award a fee. The
mere locking together of the two cases under a
consolidation order does not turn a lost case into
one in which the party may be said to have pre
vailed.
11a
Appellees reliance on Northcross v. Board of
Ed. of Memphis City Schools, 611 F.2d 624 (6th
Cir. 1979) is misplaced. There i t was held that
the t r i a l judge erred in cutting the award of fees
because the p la in t i f f s had not prevailed on some
issues or parts o f issues in the case. Northcross
was a single case and the appellate court correct
ly held i t to be improper to cull out and refuse
fee award for parts of the total issues raised,
which were not persuasive in the reaching of the
f i n a l d ec is ion . "So long as the party has
prevailed on the case as a whole, the d is t r ic t
courts are to a l low compensation fo r hours
expended on unsuccessful research or l i t i ga t ion ,
unless the positions asserted are frivolous or
in bad fa i th " (P. 636).
On remand the Court should consider only that
portion of the claimed fees that relate to the
EEO case and deny the remainder.
Reversed.
- 12a -
OPINION OF THE DISTRICT COURT,
July 11, 1978
No. C-73-2241 WHO
No. C-74-1286 WHO
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
ETTA B. SAUNDERS,
Plaint i f f -A p p e l l e e ,
v.
WILLIAM GRAHAM. CLAYTOR, JR.,
Secretary o f the Navy, et a l . ,
Defendants-Appellants.
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
Pursuant to Rule 52 of the Federal Rules of
C iv i l Procedure, the Court makes the following
findings o f fact and conclusions of law.
FINDINGS OF FACT
A. EEO Specialist Case
1. On November 14, 1966, p l a i n t i f f was
hired at the Naval Air Rework Fac i l i t y ("NARF"),
13a
Alameda, Cali fornia, on a temporary appointment,
as a Helper, A ircra f t Metafsmith, WG-5/1. At that
time, p l a in t i f f had approximately three years and
seven months o f in te rm it ten t fede ra l s e r v i c e .
2. On June 14, 1968, p l a in f i f f was promoted
to A ircra f t Metals Worker, WG-8/1, and was given
an appointment as a Career-Conditional employee.
3. Later in 1968, p l a in t i f f also applied
for the position of A ircra f t Metalsmith, WG-10,
which had been annnounced under Announcement No.
FS 6-CL. P l a in t i f f did not receive the promotion
which she sought and, on March 26, 1971, p la in t i f f
f i l e d a formal complaint alleging that the fa i lure
to promote her was due to d iscr im inat ion in
employment on the grounds o f her sex ( fema le )
and her race (Black).
4. On February 14, 1972, the Secretary of
the Navy n o t i f i e d p l a i n t i f f and NARF o f his
decision that p la in t i f f had been discriminated
against due to her sex with regard to her applica
tion to be promoted to the position o f A ircraft
Metalsmith, WG-10, and that there had been no
discrimination against p l a in t i f f on the grounds of
her race. The Secretary ordered NARF to grant
p la in t i f f appropriate r e l i e f .
14a
5. During the period between the f i l i n g of
the application for the promotion to the Aircraft
Metal smith, WG-10 p o s i t i o n , in March, 1968,
and the dec is ion of the Secretary o f the Navy
in February, 1972, the following events occurred
re la t ive to p l a in t f f ' s employment:
(a) On October 22, 1970, p l a in t i f f obtained
Career status in the federal service;
(b) From November 1, 1971, to February 25,
1972, p l a in t i f f was employed in Operations Analy
s is , 500 Division; and
(c ) From June 12, 1972, to August 26, 1972,
p l a in t i f f was employed as an on-station Neighbor
hood Youth Corp Counselor, GS-301-9.
6. On February 18, 1973, p l a i n t i f f was
promoted to the p o s i t ion o f A i r c r a f t Sheet-
metal Mechanic, WG-10, from her po s i t ion as
A ircra f t Sheetmetal Mechanic, WG-8.
7. On March 19, 1973, p l a in t i f f applied for
the p o s i t ion o f Equal Employment Opportunity
Specialist ("EEO Spec ia l is t " ) , GS 160-9, under
Vacancy Announcement No. 73-21. Four vacancies
for EEO Specialist at the GS-9 leve l were sought
to be f i l l e d by that announcment. Approximately
fourteen persons applied for those four positions.
15a
8. The qual i f icat ion standards for the EEO
Specialist position, levels GS-5 through GS-15,
are described in the C iv i l . Serv ice Commission
Handbook X-113 "Q u a l i f i c a t i o n Standards fo r
Positions under the General Schedule" (Exhibit
1015).
9. To quali fy as an EEO Special is t , GS-9,
an appl icant must have four years o f "genera l
experience" and one year of "specialized expe
rience in EEO work."
10. Generalized work experience must demon
s t ra te such q u a l i t i e s as awareness o f soc ia l
and economic problems created by discrimination
against minorities and women; an ab i l i t y to meet
and deal e f f e c t i v e l y with persons of both sexes of
d i f ferent ages, races, and economic and educa
tional background; an ab i l i t y to write c lear ly ;
and an a b i l i t y to c o l l e c t and assemble fa c ts .
Examples of acceptable general experience include
part ic ipation in community programs designed to
promote equal ity ; counseling persons with problems
concerning d isc r im ina t ion ; p a r t i c ip a t io n in
programs designed to promote equal opportunity
sponsored by educational, re l ig ious and social
service organizations; and social work, personnel
- 16a -
work, and recreational services for disadvantaged
youth. Such experience can be gained in a variety
of work settings, paid or voluntary, part or fu l l
time.
11. Handbook X-118 also allows credit for
education, whereby an academic year at an inst i tu
t ion o f h igher learn ing is equ iva lent to nine
4
months of general experience. Pro rata credit is
g iven fo r education amounting to less than a
fu l l academic year.
12. "Specialized experience" must demon
s t r a t e such things as knowledge o f the causes
and e f fec ts o f discriminatory practices against
women and m in o r i t i e s ; knowledge o f the l e g a l ,
economic, and social bases for discrimination; an
a b i l i t y to analyze and i d e n t i f y the causes o f
social and economic problems of the groups to be
served, and to make recommendations for solutions
to such problems; a b i l i t y to retain composure in
the face of personal cr i t ic ism and to exercise
mature judgment during cr is is situations; and an
ab i l i t y to persuade others to adopt and operate
e f f e c t iv e EEO plans.
17a
13. P l a in t i f f was furnished with an experi
ence statement quest ionnaire to be completed
and returned for evaluation of her qual i f icat ions.
14. P l a i n t i f f ' s exper ience quest ionnaire
showed that she had been invo lved f o r more
than e igh t years in a c t i v i t i e s that re la ted
d irec t ly to equal employment opportunities for
m inor i t i e s and women. She a lso ind icated the
extent of her educational background and training
which related to the EEO position. F inal ly, she
l i s t e d twenty-three persons as re fe rences who
could v e r i f y the extent and quality of her experi
ence .
15. P l a in t i f f was not i f ied on Apri l 9, 1973,
that she had been rated in e l i g ib le for the GS-9
EEO Special ist position on the grounds that she
lacked f ive years of v e r i f i ed experience. Shirley
Jones, formerly a NARF Personnel Management
Consultant, c r ed i t ed p l a i n t i f f with only two
years , seven—and-a-hal f months exper ience, or
three years, one-and-a-half months "at the most."
16. On July 16, 1973, p l a i n t i f f f i l e d a
formal complaint with the Navy c la iming she
was discriminated against on the grounds o f race
18a
and sex and a l l e g in g that the determination
of i n e l i g i b i l i t y was improper.
17. When p l a in t i f f f i l ed a grievance with
her employer complaining about the ra t in g of
" in e l i g ib l e / ' the Naval Air Station and the Civ i l
Serv ice Commission conducted in ves t iga t ion s
to independently calculate p l a i n t i f f ' s experience.
Mrs. Gussie Porter, who was asked by Captain Sells
of the Naval A ir station to look into the matter,
concluded that p l a in t i f f could be credited with
only three years, ten-and-a-half months experi"
ence. The C iv i l Service Commission also found
that p l a i n t i f f f a i l e d to meet the f i v e years
requirement.
18. On May 23, 1974, p l a in t i f f was not i f ied
o f the Navy's f i n a l dec is ion to uphold the
determination of i n e l i g i b i l i t y .
19. On June 18, 1974, p l a in t i f f commenced
this action No. C-74-1286 WHO.
20. Only one app l ican t , P h i l l i p Morris,
s a t i s f i e d the f u l l X - l 18 standards. He was
selected to f i l l one of the positions.
21. Prior to his selection, Mr. Morris was
an electronics engineer, GS-12, step 5, resulting
in a salary loss of approximately $4,000.
19a
22. Handbook X-118 contains the following
guideline which apparently could have been, but
was not, applied to p l a in t i f f ' s situation: "In
evaluating experience, length is of less impor
tance than either demonstrated success in posi
tions o f a responsible nature, or the breadth and
scope of the pertinent knowledges, sk i l l s , and
a b i l i t i e s possessed by the applicant and applied
in the performance of duties o f such posit ions."
23. Handbook X-118 provides another excep
t ion to the f i v e years experience standard:
in-service placement. Applicants who lack the
f i v e years o f exper ience (and/or subst i tuted
educat ion ) , but who "have a c t i v e l y promoted
equality" by participat ing in EEO-type programs,
and who have records indicating a potential for
success in equal opportunity work, may be la te ra l
ly reassigned to EEO Specialist positions.
24. Mrs. Gussie Porter argued to Captain
Sells that the aforementioned provision applied
to p la in t f f ' s situation. Mrs. Porter f e l t that
the quali ty o f p l a in t i f f ' s three years, ten-and-a-
half months experience was so high as to compen
sate f o r her lack o f f i v e years exper ience,
- 20a -
and that p l a in t i f f should therefore be appointed.
Her advice was not taken.
25. Defendants decided to f i l l the remaining
three GS-9 EEO Special ist positions by using the
in-service placement provision. Four applicants,
a l l male, were e l i g i b l e under these c r i t e r i a .
26. Eldridge Carrington, Jose Galvan, and
Serveriano Garcia, J r . , were ultimately selected.
27. At the time of his selection, Mr. Galvin
had only one year, two months experience. His
rating record shows the following remarks: "some
educ. subst. no other apparent EEO."
28. At the time of selection, Mr. Garcia had
one year, three months general credit for educa
tion, and 1.6 years credit for experience.
29. P l a in t i f f was better qual i f ied for the
position than either Messrs. Galvan or Garcia,
since she was credited with three years, ten-and-
a-half months experience. Furthermore, her record
indicates not only that her background had prepar
ed her to assume the duties and respons ib i l i t ies
of an EEO Specialist , but also that her experience
was of a high quality.
30. P l a in t i f f served as a reading instruc
tor, counselor, and tester at St. Francis De Sales
21a
and St. Patr ick 's Schools, Oakland: chairperson,
Parents' Advisory Committee on Education, Emery
High School ; counselor, Community Resources
Committee, Upward Bound Program, Mills College;
employee's counsel or representative in discrimin
at ion complaints, Naval A i r Rework F a c i l i t y ,
Alameda; employee, Neighborhood Youth Corps
o f f i c e , Naval A i r S ta t ion ; chairperson, Human
Relations Committee, Albany; d irector, Teenagers
Soc ia l Club, St. Ambrose's Church, Berkeley ;
member, Parents' Advisory Group, Albany School
system. She also took several courses at Laney
College and at the U.C. Extension in the area of
human relations and labor-management relations.
31. Defendants ju s t i f y their nonselection of
p l a in t i f f under the in-service placement alterna
t ive by arguing that her status at a l l relevant
times was WG-10; a transfer from WG-10 to GS-9
would c on s t i tu te a promotion, as opposed to a
la tera l transfer, and was therefore not permitted.
32. When defendants made the dec is ion to
switch from the f u l l X—118 standards to the
in - s e r v i c e placement c r i t e r i a , they had the
opportunity to reannounce the remaining three EEO
22a -
Specialist openings at the GS-7 leve l , so as to
increase the pool of e l i g ib l e applicants.
33. Had the position been reannounced at the
GS-7 leve l , p l a in t i f f would have been e l i g ib l e for
la tera l reassignment under the in-service provi
sions. She was qual i f ied for a EEO Specialist,
GS-7 position.
34. Had the position been reannounced at the
GS-7 l e ve l , defendants would have been obligated
under the regulations governing reductions in work
force to make p l a in t i f f an o f fe r , to prevent her
impending separation.
35. Naval Air Station, Alameda, Instruction
(NASALAMEDAINST. 12000.3), Chapter 11, Reduction
in Force, at page 11-8 states:
"When a Group I or I I employee is reached for
re lease and cannot be re ta ined in another
position within his competitive leve l , he is
ent i t led to any avai lable position for which
he is qualif ied in another competitive level
which has a representative rate equal to or
lower than that of the position from which he
is being re leased . I f two or more such
positions ex is t , he is enti t led to the one
with the highest r ep resen ta t i v e r a t e . "
Since p l a in t i f f was reached for release from her
WG-10 Sheet Metal Mechanic position and could not
be re ta ined in another p o s i t ion w ith in that
2 3 a -
competitive l e ve l , she would have been entit led to
the EEO Specia l ist position had i t been reannounc
ed at the GS-7 leve l .
36. A NARF pub l ica t ion e n t i t l e d "nar f
alameda," dated May, 1976, states:
"The C iv i l Service Commission and Department
of the Navy regu la t ions provide fo r use
o f e x i s t in g vacancies when RIF occurs.
Accordingly, when RIF's are anticipated, i t
is NARF1s pol icy to freeze internal promo
tion actions as well as recruitment actions
and make the vacancies available for those
employees who qualify and are being adversely
affected by RIF."
37. P l a i n t i f f was a h igh ly v i s i b l e and
active symbol o f equal opportunity at the NARF/
NAS. She had been the f i r s t female Navy employee
to prevail in a discrimination case. She had been
active throughout her employment as an EEO Repre
sentative for other minority and female employees.
38. Defendants' explanation for not rean
nouncing the EEO s lo ts at the GS-7 l e v e l was
that a GS-9 sk i l l level was needed to get the new
EEO o f f i c e functioning properly.
39. However, selection through in-service
placement, by d e f i n i t i o n , invo lves s e le c t ion
of people who do not meet the formal experience
and/or educational requirements for the position
- 24a -
and l e v e l invo lved . Instead, the employer is
permitted to look to persons with "potent ia l . "
40. P l a i n t i f f ' s "potent ia l " in the area of
EEO was very high; an evaluation o f her education,
experience, personal characterist ics, and a b i l i
t i e s , ind ica tes that she had more po ten t ia l
for success at the EEO Specia l ist position than
did several of the men ultimately chosen for the
job. She also had more EEO experience than any of
the four men selected.
41. Defendants 1 _ j u s t i f i c a t i o n fo r not
reannouncing the EEO Specialist job at GS-7 is
p r e t ex t . I f defendants wanted to acquire the
needed s k i l l s fo r th e i r new EEO o f f i c e , the
log ica l course would have been to se lect p la in t i f f
for one of the four spots.
42. The Court f inds that the r ea l reason
defendants chose (1) not to interpret to plain
t i f f ' s b e n e f i t the Handbook X-118 regu la t ion
quoted in Finding o f Fact 22, (2) not to rean
nounce the EEO Specialist openings at the GS-7
leve l upon invocation of the in-service placement
alternative, and (3) to ignore the NASF policy
statement quoted in Finding o f Fact 36, was to
prevent p l a in t i f f from gett ing the position, and
25a -
thereby to force her to leave the Base.
43. The defendants' actions described above
were the result of discriminatory and/or r e ta l ia
tory animus.
B. RIF Case
44. On Apri l 2, 1973, p l a in t i f f was no t i f ied
that her employment at NARF would be terminated
e f f e c t i v e June 1, 1973, as a result of a reduction
in force ( "R IF" ) .
45. Before the 1973 RIF, there were 145
Sheetmetal Mechanic (A i r c ra f t ) WG-10 positions at
NARF.
46. The RIF abol ished 108 o f these pos i -
t ions.
47. P l a in t i f f requested that she be carried
on Leave Without Pay status f o r t h i r t y days.
48. With this thirty-day leave, p l a in t i f f ' s
separation from NARF was e f f e c t iv e July 2, 1973.
49. I f no appropriate job o f fe r can be made
to the p a r t i c u la r employee, the employee is
not i f ied o f his or her impending separation from
the federal service.
26a -
50. Employees who are subject to RIF may
reg ister on three separate p r io r i ty employment
l i s t s . Those l i s t s are:
(a) Navy-Reemployment P r io r i ty L ist (RPL).
The RPL is the f i r s t l i s t to be considered
where vacancies are to be f i l l e d . P l a in t i f f was
r e g i s t e r e d on the RPL fo r c e r ta in pos i t ions .
(b ) Department o f Defense (DOD) Stopper
L ist . The p l a in t i f f was interviewed on May 9,
1973, by Theodore Fernandez, RIF Counselor for
IRD, fo r the purpose o f p lac ing p l a i n t i f f ' s
name on the DOD Stopper L is t .
(c ) The C iv i l Service Commission Register of
Displaced Employee Program (DEP), which is estab
lished pursuant to the provisions o f FPM, 335,
sub-chapter 3-3e. P l a in t i f f was registered on the
DEP on June 18, 1973.
51. P l a in t i f f was registered on the RPL for
only Sheetmetal Mechanic (A/C) WG-10, Production
Controller GS-8, EEO Specialist GS-9, and Produc
tion Dispatcher WG-7.
52. P l a in t i f f registered under the DEP for
Sheetmetal Mechanic (A/C) WG-8 and 10, Production
Controller GS-8, EEO Specialist GS-7 and 9, Crater
and Packer WG-8, and Production Dispatcher WG-7.
27a
53. On the date p l a in t i f f was not i f ied that
she was to be RIFed and on the date of her actual
termination, p l a in t i f f held the position of Sheet
Metal Mechanic, WG 3806-10, with a service compu
tation date of July 2, 1962.
54. P l a in t i f f ' s tenure group c lass i f ica t ion
was IB, nonveteran, career employee.
55. An Out-Placement Committee, was set up
by NARF to help employees adversely affected by
the RIF to find alternate employment in ei ther the
public or private sectors.
56. On May 23, 1973, Curtis Turner f i l e d a
RIF appeal on behal f o f p l a i n t i f f with the
San Francisco Regional Office o f the C iv i l Service
Commission.
57. On August 29, 1973, the Regional Office
affirmed the action of defendant NARF in separat
ing the p la in t i f f .
58. On September 14, 1973, Curtis Turner
f i l ed an appeal of the decision of the Regional
o f f i c e with the Board of Appeals and Review of the
United States C iv i l Service Commission in Washing
ton, D.C.
28a -
59. On January 28, 1974, the Board of
Appeals and Review affirmed the decision of the
Regional Off ice .
60. On November 1, 1973, the p l a in t i f f f i l ed
a formal EEO complaint with NAS/NARF a l l e g in g
d isc r im ina t ion on the basis o f race and sex
respecting the RIF action.
61. On November 16, 1973, p l a i n t i f f was
not i f ied of the f ina l decision o f the Department
of the Navy upholding the RIF action against her
and n o t i f y in g her, among other th ings , o f her
right to bring this action.
62. On December 14, 1973, p l a i n t i f f com
menced this lawsuit, No. C-73-2241 WHO.
63. P l a i n t i f f ' s name was withdrawn from the
DOD l i s t , because p l a in t i f f informed defendants
that she did not want to be registered on that
l i s t .
64. At no time relevant to this lawsuit did
NARF h i r e any employee from the DOD Stopper
L i s t .
65. The RPL applies only when a hir ing is
done by NARF from outs ide the f a c i l i t y . RPL
limitations do not prevent an agency from f i l l i n g
2 9 a
a vacant po s i t ion by promotion o f a q u a l i f i e d
employee within the agency.
66. None of the persons who were hired by
NARF into the pos i t ions fo r which p l a i n t i f f
was registered on the RPL came from outside the
f a c i l i t y .
67. Through the e f f o r t s o f defendants '
Out-Placement Committee, p l a in t i f f was informed of
job opportunities. However, p l a in t i f f fa i led to
pursue any o f these opportunities.
68. Any placement of NARF employees which
may have been made in derogation of p l a in t i f f ' s
pre-RIF and/or post-RIF r igh ts to continued
employment resulted from defendants' administra
t ive ine f f ic iency , from defendants' ju s t i f iab le
impression that p l a i n t i f f had no in te r e s t in
the particular positions then avai lable, or from a
combination th e reo f . Mistaken placements, i f
any occurred, were not the result of discrimina
tory or re ta l ia tory animus.
CONCLUSIONS OF LAW
1. The court has ju r i s d i c t i o n over the.
subject matter of this action pursuant to Section
717(c) of the Equal Employment Opportunity Act of
30a
1972, 42 U.S.C. § 2000e-16(c), amending T i t l e VII
of the C iv i l Rights Act of 1964, 42 U.S.C. § 2000e
et seq .
2. P l a in t i f f exhausted a l l administrative
remedies prior to bringing these actions.
3. P l a i n t i f f a c t i v e l y opposed pract ices
made unlawful by T i t l e VII , within the meaning
of Section 704(a), by her f i l i n g of formal and
informal complaints of discrimination in 1971,
1972, and 1973, and her a c t i v i t i e s as an employee
rep resen ta t iv e in matters o f equal employment
opportunity.
4. P l a in t i f f has demonstrated by a prepon
derance of the evidence that she was rated in e l i
gible for the position of EEO Special is t , GS-9, in
re ta l ia t ion for her opposition to unlawful employ
ment practices and/or for having f i l ed a complaint
of unlawful discrimination against the agency.
5. P l a in t i f f has demonstrated by a prepon
derance of the evidence that she was rated in e l i
g ib le for the position of EEO Special is t , GS-9,
on the grounds of her sex.
6. Defendant has fa i led to art iculate any
legitimate, nondiscriminatory business ju s t i f i e s -
31a
t ion f o r the above-described act ions against
p la in t i f f .
7. P l a in t i f f has fa i led to demonstrate by a
preponderance of the evidence that she was RIFed
in re ta l ia t ion for having opposed alleged discrim
inatory employment practices and/or having f i l ed a
complaint against the agency.
8. P l a in t i f f has fa i led to demonstrate by a
preponderance of the evidence that she was RIFed
on the grounds o f her sex (female) or her race
(Black).
Counsel for p l a in t i f f shall submit a memoran
dum suggesting appropriate r e l i e f , to be accom
panied by a memorandum of points and authorities,
by July 14, 1978. Counsel for defendants w i l l
submit a memorandum in opposition, i f any there
be, by July 18, 1978. A hearing on r e l i e f w i l l be
held Wednesday, July 19, 1 978, at 5:00 p.m.
Dated: July 11, 1978.
William H. Orrick
United States Distr ic t Judge
3 2 a -
ORDER OF THE DISTRICT COURT
OCT. 31, 1978
No. C-74-1286 WHO
No. C-73-2241 WHO
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
ETTA B. SAUNDERS,
P la in t i f f -Appe l lee ,
v.
WILLIAM GRAHAM CLAYTOR, JR.,
Secretary of the Navy, et a l . ,
Defendants-Appellant s .
P l a in t i f f , having demonstrated by a prepon
derance of the evidence that she was qual i f ied for
the position of EEO Specialist GS-7 but that she
was rated in e l ig ib le on the grounds of her sex,
and defendant having f a i l e d to a r t i c u la t e any
legit imate, nondiscriminatory business ju s t i f i c a
tion for such action, and good cause appearing,
IT IS HEREBY ORDERED that:
3 3 a -
1. Defendant sha l l fo r thw ith r e in s ta te
p l a in t i f f to the position of EEO Specialist GS-11,
step 4. 42 U.S.C. § 2000e-5(g); Richerson v.
Jones, 551 F . 2d 918 (3d Cir. 1977). P l a in t i f f ' s
s e n io r i t y sha l l date back to A p r i l 30, 1973,
being the time she would have been placed in the
position absent discrimination. Po ls to r f f v.
Fletcher, 17 FEP Cases 123, 129 (N.D. Ala. 1978).
The Court finds that p l a in t i f f would have attained
the position of EEO Special ist GS-11 but for the
defendants ' unlawful employment p rac t ic es .
The Court further finds that the p la in t i f f has
demonstrated that the advancement rate she postu
lates is f a i r l y typical in the EEO o f f i c e —having
documented two additional instances in which male
EEO specia l ists advanced at such a rate. ’ The Navy
has not borne i t s burden of showing, by a prepon
derance, that even absent discrimination plain
t i f f ' s quali f ications were such that she would
not have been promoted to the GS-11 pos i t ion .
2. Defendant shall forthwith award back pay
to p l a in t i f f computed as follows:
(a ) Assume entry in to the EEO S p ec ia l i s t
p o s i t ion at the GS-7- l e v e l , promotion to GS-9
“ 34a -
after one year, promotion to GS-11 a f te r a second
year, and appropr iate step increases to date,
deducting from the tota l back pay the amount of
severance pay. Pettway v. American Cast Iron Pipe
Co. , 494 F .2d 211 (5th C ir . 1974). P l a i n t i f f
should be credited with the amount of sick leave
and annual leave which she had accumulated at the
time of her termination in 1973. This result,
which cons t i tu tes an attempt to implement the
"make whole" remedy o f the Act, makes the quite
reasonable assumption that p l a in t i f f , had she been
employed at NARF during the period of her separa
tion, would have experienced her previous rate
of i l lness and availed herse l f o f annual leave as
i t became due her.
(b ) Th ere w i l l be no award o f in te res t .
Richerson v. Jones, 551 F.2d 918, 925 (3d Cir.
1977).
(c ) An in f la t ion factor, calculated accord
ing to the United States Department o f Labor
average c o s t - o f - l i v i n g data fo r the years in
question, shall be included. This is necessary to
assure compensation in "constant do l la rs , " because
calculation of p l a in t i f f ' s back pay award w i l l be
based upon fed e ra l sa la ry schedules in e f f e c t
35a
during p r io r years. See Lockheed Minor ity
S o l i d a r i t y Coalition v. Lockheed Missiles & Space
Go. , 406 F. Supp. 828, 834 (N.D. Cal. 1976).
(d) There w i l l be no award of lost overtime
pay, because such damages are too speculative.
(e ) Unemployment compensation received by
p l a in t i f f w i l l be deducted from the total back pay
award. The Court declines to apply the co l la tera l
source rule here; a back pay award is not punitive
in nature, but is compensatory, intended merely to
make the p l a i n t i f f whole from the e f f e c t s o f
unlawful discrimination. See EEOC v. Enterprise
Associat ion, 542 F.2d 579, 591-92 (2d Cir. 1976).
( f ) The award sha l l not be reduced fo r
amounts "earnable with reasonable d i l igence . " 42
U.S.C. § 2000e~5(g). The Court finds that plain
t i f f , although she was unable to secure alterna
t ive employment, did exercise reasonable di l igence
in the pursuit thereof. The record shows that she
was registered on several employment e l i g i b i l i t y
l i s t s , that she sought work as a sheetmetal
mechanic at several Navy instal lat ions and with at
least one. private employer in the San Francisco
Bay area, and that she applied for employment at a
local EEOC o f f i c e . The Court finds these e f fo r ts
- 36a -
c lear ly su f f ic ient to meet the mitigation require
ments imposed by the Act, See Inda v. United Air
Lines, Inc., 405 F. Supp. 426 (N.D. Cal. 1975),
a f f ' d , 16 FEP Cases 251 (9th Cir. 1977).
3. The record is hereby augmented by
admitting into evidence P l a i n t i f f ' s Exhibit 64,
submitted September S, 1978.
4. P l a i n t i f f w i l l prepare a judgment in
form approved by the defendant to be lodged with
the Court on or before November 15, 1978.
Dated: October 31, 1978.
William H. Orrick
United States Distr ic t Judge
37a
ORDER OF THE DISTRICT COURT
Dec. 12, 1978
No. C-73-2241 WHO
No. C-74-1286 WHO
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
ETTA B. SAUNDERS,
P la in t i f f ,
v. _
WILLIAM GRAHAM CLAYTOR, JR.,
Secretary of the Navy, et a l . ,
Defendants.
ORDER
The Court, having considered p l a i n t i f f ' s
proposed form of judgment, p l a in t i f f ' s proposed
amendments to the Court's Order of October 31,
1978, and defendants ' ob jec t ions there to , and
good cause appearing,
IT IS HEREBY ORDERED that:
- 38a -
1. The Order of this Court entered October
31, 1978, sh a l l be amended as fo l low s : On
page 3, following paragraph 2 ( f ) , there shall be
inserted the following new paragraph:
" ( g ) P l a i n t i f f may r e in s ta t e her
ret irement b en e f i t s fo r part or all
o f the period prior to January 2, 1978,
by contributing appropriate amounts, not
to include any contribution by p la in t i f f
as interest, to the retirement system
f o r each p e r i o d o f employment for
which she has no contr ibut ion to her
credit , and for which she wishes to have
retirement c red i t . "
2. There shall be no award of injunctive
r e l i e f . P l a in t i f f ' s interest in remaining free
from future acts o f discrimination is adequately
p ro tec ted by the ex tens ive in ju nc t iv e r e l i e f
entered pursuant, to the Consent Decree in Saun
ders v. Naval Air Rework F a c i l i t y , No. C-74-0520
WHO.
3. P la in t i f f shall prepare a proposed form
° f judgment which shall conform to the terms of
the October 31, 1978, Order, as amended herein.
Adjustment of sick leave and annual leave shall be
as stated in the October 31 Order, and there shall
be no cash award option. Retroactive seniority
- 39a -
shall correspond to the job progression ladders
set forth in p l a in t i f f ' s Exhibit 64.
4. The Court ■ f inds p l a i n t i f f to be a
prevail ing party within the terms of T i t l e VII,
42 U.S.C. § 2000e-5(k), and shall award a reason
able attorney's fee. P l a in t i f f shall submit a
c e r t i f i c a t e o f counsel conta in ing su f f i c i en t *
information to enable the Court to consider an
appropriate award in l i g h t o f the fa c to rs set
forth in Johnson v, Georgia Highway Express, Inc. ,
488 F.2d 714, 717-19 (5th Cir. 1974).
P l a in t i f f shall f i l e and serve upon defen
dants the required materials no later than Decem
ber 22, 1978, to which defendants shall respond no
later than December 29, 1978, whereupon the matter
shall be deemed submitted.
Dated: December 12, 1978.
William H. Orrick
United States Distr ic t Judge
- 40a
ORDER OF THE DISTRICT COURT
Jan. 25, 1979
No. C-73-2241 WHO
No. C-74-1286 WHO
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
ETTA B. SAUNDERS,
P l a i n t i f f ,
v.
WILLIAM GRAHAM CLAYTOR, JR.,
Secretary of the Navy, et a l . ,
Defendants.
JUDGMENT
This action, having been tr ied before this
Court, s i t t ing without a jury, on March 27 to 29,
1978, and this Court having entered its Findings
of Fact and Conclusions o f Law on July 11, 1978,
and i ts Order as to appropriate r e l i e f on October
31, 1978,
- 41a
IT IS HEREBY ORDERED, ADJUDGED and DECREED:
1. Defendants shall, not later than Febru
ary 5, 1979, reinstate p l a in t i f f to the position
of EEO Special ist , GS-11, Step 4, with seniority
dating back to April 30, 1973. Such retroact ive
seniori ty shall correspond to the job progression
ladders set fo r th in p l a i n t i f f ' s Exhibit 64.
2. Defendants sha l l award back pay to
p l a i n t i f f , computed pursuant to the Federal
GS pay schedule, with cost of l iv ing increases,
deducting therefrom the amount o f p l a i n t i f f ' s
severance pay ($4,619.11) , and p l a i n t i f f ' s
compensation benef its ($1,620.00). The amount of
p l a i n t i f f ' s back pay from date o f termination
through February 5, 1979, is $92,955.92; the
additional amount due as a cost of l iv ing in f la
tion factor through July, 1978, is $16,231.72.
On or before the 61st day following entry of this
Judgment, defendants sha l l pay to p l a i n t i f f
the adjusted back-pay award, as indicated above,
in the amount of $102,948.53. In the event of an
appeal, the amount paid as an in f lat ion factor
shall be recomputed according to the most current
- 42a -
Department of Labor cost o f l iv ing index figure
avai lable at the time of payment.
3. The defendants shall credit p la in t i f f
with any s ick leave and annual leave which
p l a in t i f f had accrued at the time of her separa
tion from the Federal Service on Apri l 30, 1973.
This r e s u l t , which cons t i tu tes an attempt to
implement the "make whole" remedy o f the Act,
makes the quite reasonable assumption that plain
t i f f , had she been employed at NARF during the
period of her separation, would have experienced
her previous rate of i l lness and availed herself
of annual leave as i t became due her.
4. P l a in t i f f may reinstate her retirement
benefits for part of a l l o f the period pr ior to
February 5, 1979, by con tr ibu t ing appropriate
amounts, not to include any contr ibut ion by
p l a in t i f f as interest, to the retirement system
for each period of employment for which she has
no contribution to her credit , and for which she
wishes to have retirement credit .
5. The Court f inds p l a i n t i f f to be a
prevai l ing party within the terms of T i t l e VII,
42 U.S.C. § 2000e-5(k), and shall award reasonable
attorneys' fees and costs.
- 43a
Dated: January 25, 1979.
William H. Orrick
United States Distr ic t Judge
'
- 44a -
ORDER OF THE DISTRICT COURT
Jan. 25, 1979,
on Attorneys' Fees
No. C-73-2241 WHO
No. C-74-1286 WHO
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
ETTA B. SAUNDERS,
P la in t i f f ,
v.
WILLIAM GRAHAM CLAYTOR, JR.,
Secretary of the Navy, et a l . ,
Defendants.
ORDER
The Court having reviewed the entire record
of proceedings in this case, including the cer-
t i f i c a t e s , a f f idav i ts and memoranda submitted by
the parties pursuant to p l a in t i f f ' s application
fo r an award of a t to rneys ' f e e s , and having
- 45a
considered this material in l ight o f the c r i t e r ia
set forth in Johnson v. Georgia Highway Express,
Inc. , 488 F . 2d 714 (5th Cir. 1974) (See, Kerr v .
Screen Extras Guild, Inc., 526 F . 2d 67 (9th Cir.
1975), c e r t . den. , 425 U.S. 951 ( 1976), ^ t h e
Court finds the facts to be as follows:
1. In i ts Order of December 13, 1978, the
Court found p la in t i f f to be a prevail ing party
within the terms of T i t l e VII , 42 U.S.C. § 2000e-
5 (k ) , and thereby ent it led to an award of reason
able attorneys' fees. Counsel have since complied
1. The Court 's Order o f December 13, 1978,
directed counsel to submit material necessary for
consideration of this issue under the c r i t e r ia
in Johnson v. Georgia Highway Express, Inc. , 488
F. 2d 714 (5th Cir. 1974). Defendants now suggest
that the recent decision in Copeland v. Marshall,
No. 77-1351 (D.C. Cir. Oct. 30, 1978), should in
stead guide the Court 's d isp o s i t i o n o f th is
matter. However, the " c o s t -p lu s " formula of
Copeland, interest ing though i t may be, has not
been approved by this C i r c u i t . Furthermore,
defendants argue that because they cannot at this
time take a position with respect to Copeland, the
Court should stay any cons iderat ion o f f ees .
Such a result would be grossly unfair to counsel
for p la in t i f f , who have patiently l i t i ga ted this
matter since 1973.
- 46a -
with the Court’ s instruction to submit c e r t i f i
cates containing su f f ic ient information from which
a reasonable award can be determined.
2. The issues in this employment discrimi
nation ac t ion , although not t ru ly nove l , were
indeed complex, both lega l ly and factually . The
p le thora o f f e d e ra l regu la t ions invo lved , and
their various impacts upon p la in t i f f and other
s imilarly-situated employees, rendered the case
exceed ing ly d i f f i c u l t . The d i f f e r i n g circum
stances surrounding the employment o f p la in t i f f
and other Navy employees added further complexity.
Finally, the several months necessary to enable
counsel and the Court to fashion appropriate
r e l i e f has made apparent the d i f f i c u l t y in that
area o f the matter as well .
3. Counsel 's e f f o r t s in th is l i t i g a t i o n
produced an extremely benef ic ia l result for the
p l a in t i f f . Mrs. Saunders obtained reinstatement,
an award of back pay, and the var iety of benefits
appurtenant thereto. In addition, her success in
th is act ion serves to v in d ica te the important
national goals and pol ic ies embodied in T i t l e VII.
See, Johnson v. Georgia Highway Express, Inc. ,
supra, 488 F .2d at 716. In this regard, the Court
- 47a
finds i t irrelevant that p l a in t i f f did not "pre
v a i l " on each issue tendered in the case- The
Court is not required to scrutinize every element
of p l a in t i f f ' s l i t i g a t i o n strategy; therefore,
unless claims are "c lear ly merit less ," work per
formed in connect ion therewith may be compen
sated desp ite the r e su l t . Stanford Dai ly v .
Zurcher, 64 F.R.D. 680, 684 (N.D. Cal. 1974),
a f f 'd 550 F.2d 464 (9th Cir. 1977), rev'd on other
grounds, 46 U.S.L.W. 4545 (1978); Richardson v.
C iv i l Service Commission, 17 FEP Cases 157, 158
(S.D. N.Y. 1978).
4. The r i s k undertaken by counsel in
prosecuting this action was substantial. Since
1973, counsel fo r the p l a i n t i f f have devoted
considerable e f fo r ts to this l i t i g a t ion with no
assurance of ultimate success and without any fee
commitment from the c l ien t . The Court’ s ins is
tence upon fixed t r i a l dates— some o f which were
continued due to p r io r i ty criminal matters—pre
cluded counsel from accept ing t r i a l - r e l a t e d
employment in vo lv in g c o n f l i c t i n g appearances.
5. The l i t i g a t ion was prosecuted by able,
skil led counsel whose representaion was o f the
highest quality. The Court need not look beyond
- 48a -
the record of this case to appreciate the abil i ty
of a l l counsel involved. Mr. Moore's long expe
r ience in employment d isc r im ina t ion matters
was re f lected not only in his pleadings, memoranda
and court appearances, but also in his sk i l l fu l
handling of negotiations and case management. He
was great ly benefited by the assistance of his
associate, Ms. Sev i l le , who, though less experi
enced, is an able and competent attorney.
6. In l ight o f the complexity o f the case,
i ts duration, and the result achieved, the total
hours claimed to have been spent on the l i t iga t ion
appear to the Court to be reasonable. The a f f i
davits of counsel set forth in deta i l the various
a c t i v i t i e s involved and the time attributable to
each. Mr. Moore claims a tota l of 457 hours, Ms.
Sev i l le 445 hours, and Ms. Viveros, a paralegal
who assisted in the preparation of the case, 120
hours. The Court f inds l i t t l e dupl ica t ion in
the e f fo r ts expended, and no attempt to inf late
these totals beyond the actual time spent.
7. The Court f inds the hourly rates re
quested, although not complete ly u n re a l i s t i c ,
somewhat higher than appropriate for some of the
a c t i v i t i e s invo lved . See Richardson v. C i v i l
- 49a -
Serv ice Commission, supra; Will iams v. Saxbe,
17 FEP Cases 1657, 1661 (D.D.C. 1976). Mr.
Moore seeks an hourly ra te o f $100, fo r a l l
. . . 2 / .
a c t l v i t i e s ,— even though much of his time neces
sar i ly involved review of pleadings, memoranda and
other documents prepared by others. Ms. Sev i l le ,
who has only recently completed her third year of
law pract ice, seeks compensation at the rate of
$75 per hour. The time spent by Ms. Viveros, a
paralegal assistant, has been computed by counsel
at $30 per hour.
Based upon a l l o f the f ind ings set for th
above, the Court concludes a reasonable award of
attorneys' fees for the services of Mr. Moore and
his associates to be $65,000. In addition, costs
of $3,000, pursuant to counsel's a f f idav i t , shall
be allowed.
The Court has also examined the request of
Mr. John Erickson for attorney's fees in connec
tion with his participation in these proceedings.
In l i g h t o f the fa c to rs described above, and
2/ Defendants do not object to compensation at a
rate o f $100 per hour f o r Mr. Moore's t r i a l
advocacy, but suggest that a lower f igure is more
appropriate for other a c t i v i t i e s .
50a
part icularly the court's awareness of the high
qual ity o f Mr. Erickson's work, his request for
$675 is a reasonable one. In addition, costs of
$340, contributed by the NAACP Defense and Educa
tion Fund, Inc., shall be allowed.
IT IS HEREBY ORDERED that defendants shall
fo r thw ith reimburse p l a i n t i f f fo r reasonable
attorneys' fees in accordance with this Order.
Dated: January 25, 1979.
William H. Orrick
United States Distr ic t Judge
51a
ORDER OF THE DISTRICT COURT,
March 16, 1979
No. C-73-2241 WHO
No. C-74-1286 WHO
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
ETTA B. SAUNDERS,
P l a i n t i f f ,
v.
WILLIAM GRAHAM CLAYTOR, JR.,
Secretary of the Navy, et a l . ,
Defendants.
ORDER
The above and fo rego ing c i v i l ac t ions ,
this date, coming on for hearing on defendants'
motion for new t r i a l , pursuant to Rule 59, FRCP,
and to amend findings, pursuant to Rule 52(b),
FRCP, the parties appearing through their respec
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t i v e counsel o f record, b r i e f s and arguments
having been considered, and the matter thereafter
duly submitted, the premises considered, IT IS
HEREBY ORDERED, ADJUDGED and DECREED,
That, defendants' motion for new t r i a l on all
grounds be and is hereby denied; and
That defendants' motion to amend findings on
a l l grounds be and is hereby denied.
Dated: March 16, 1979.
William H. Orrick Jr.
USDJ
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MEHORAilDUK FOR LIMITED STATES ATTORNEYS
: Ai.'D AGE1ICY GENERAL CCUilSELS
Re: T i d e VII Licir.acion
In 1972, as additional evidence of our 'Ration's deter
mination to guarantee equal rights to a l l citizens, Congress
amended Title VII of the Civ il Rights Act of 1961 co provide
Federal employees and applicants for Federal employment with
jud ic ia l ly 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 chose responsibil it ies,
we must ensure that the Department of Justice conducts its
representational functions as defense attorneys for agencies
in suits under the Act in a way chat w i l l be supportive of and
consistent with the Department's broader obligations to
enforce equal opportunity laws. This memorandum is issued
as part of what w i l l be a continuing effort by the Department
to this end.
Congress, in amending Title VII, has conferred upon Federal
employees and applicants the same subscanciva rignt to be free
from discrimination on the basis of race, color, sex; religion,
and national origin, and the same procedural righes co judic ia l
enforcement as i t has conferred upon employees and applicants
in private industry and in state and local governments.
Morton v. Mancarl, 417 U.5. 535 (1974): Chandler v. Roudabush,
i 2 5 U~S . 8 u 0 ( l y 7 6) . And, as a matter or policy, the Feceraj.
Government should be wil l ing to assume for its own agencies no
lesser obligations wish respect to equal employment opportunities
than chose i t seeks to impose upon private and state and local
government employers.
In furtherance of this poLicy, the Department, whenever
possible, w i l l cake the same position in interpreting Title VII
in defense of Federal employee cases as i t has taken and w i l l
take in private or state and local government employee cases.
For example, where Federal employees and applicants meet the
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cr iter ia of Rule 23 of the Federal Rules of Civ il Procedure,
they are also entitled to the same class rights as are
private sector employees. Albemarle Paoer Co. v. Mo ady,
422 U.S. 405, 414 (1973). Further, the Department or
Justice has acquiesced in the recent rulings of the ■
Fifth and Sixth Circuit Courts of Appeals that i t is
unnecessary tor unnamed class members to exhaust their
administrative remedies as a prerequisite to class
membership. Eas eland v. TVA, 353 F.2d 364 (5th Cir. 1977);
Williams v. TVA. __,F.2d___ ( 6 th Cir. 1977). Consequently,
we w i l l no longer maintain that each class member in a
Tit le VII suit trust have exhausted his or her administrative
remedy.
In a similar vein, the Department w i l l not urge
arguments that rely upon the unique role of the Federal
Government. For example, the Department recognizes that
Che same kinds of r e l i e f should be available against the
Federal Government as courts have found appropriate in
private sector cases, including imposition of affirmative
action oians, back pay and attorney's fees. See Copeland
v. Us ary , 13 EPD '.1 1 1 , 4 3 4 (D.D.C. 1976); Dav v. Mathews , '
530 F . 2d’ 1083 (D.C. Cir. 1976) ; Sperl ing v. United Peaces,
515 F.2d 465 (3d Cir. 1975). Thus, wnife the Department
might oppose particular remedies in a given case, i t w i l l
not urge Chat dif ferent standards be applied in cases against
the Federal Government chan are applied in ocher cases.
The Department, in other respects, w i l l also actempt
to promote the, underlying purpose of Title VII. For example,
the 1972 amendments to Tit le VII do not give the Government
a right to f i l s a c iv i l action challenging an agency finding
of discrimination. Accordingly, to avoid any appearance on
Che Government's part of unfairly hindering Title VII law
suits, the Government w i l l not attempt to contest a f inal
agency or Civ il Service Commission finding of discrimination
by seeking a t r ia l da novo in chose cases where an employee
who has been successful in proving his or her claim before
either the agency or the Commission fi les a c iv i l action
seeking only to expand upon the remedy proposed by such
f ina l decision.
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The policy sec forth above does noc reflect, and should
noc be interpreted as reflecting, any .unwillingness on the
part of the Department to vigorously defend, on the merics,
claims of discrimination against Federal agencies^ where
appropriate. It ref lects only a concern that enforcement of
the equal opportunity laws as to a l l employees be uniform
and consistent.
In addition to the areas discussed above, Che Department
of Justice is now undertaking a review of the consistency or
other legal positions advanced by the Civ il Division in
defending Title VII cases with chose advocated by the Civi l
Rights Division in prosecuting Tit le VII cases. The objective of
this review is to ensure char, insofar as possible, they w i l l
be consistent, irrespective of che Department's rola^as either
p la in t i f f or defendant under T id e VII. As a part of this
review, "the Equal Employment Opportunity Cases section or
Che Civ il Division Practice Manual (§3-37) , which contains
che 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 w i l l 'b e distributed to a l l
United States Attorneys' Offices and w i l l replace the present
section. Each off ice should rely on the revised section of
the Manual for guidance on legal arguments to be made in Title V
actions. In order to ensure consistency, any legal arguments
which are not treated in che Manual should be referred to che
Civil Division for review prior to their being advocacad to
Che court.
This policy statement has been achieved through the
cooperation of Assistant Attorney General Barbara Babcock
of Che C iv i l Division who is responsible for the defense of
these Federal employee cases, and Assistant Attorney General
Drew Days of che C iv il Rights Division who is my principal
adviser on c iv i l righes matters. They and their Divisions
w i l l continue to work closely together to assure that this
policy is effectively implemented.
. GRIFFIN ii. BELL
I ‘•s.-ft— __ <
August 31, 1977
DOJ-1977-09
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