Clark v. Lewis Supplemental Brief

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE
DISTRICT OF COLUMBIA CIRCUIT 

‘No. 82-2249

MARLENE G. CLARK,
Plaintiff-Appellant,
v.

DREW LEWIS, Secretary of 
Transportation,

Defendant-Appellee.

On Appeal from The United States District 
Court for the District of Columbia

SUPPLEMENTAL BRIEF

JACK GREENBERG 
CHARLES STEPHEN RALSTON 

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

Attorneys for Appellant



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE
DISTRICT OF COLUMBIA CIRCUIT 

No. 82-2249

MARLENE G. CLARK,
Plaintiff-Appellant,
v.

DREW LEWIS, Secretary of 
Transportation,

Defendant-Appellee.

SUPPLEMENTAL BRIEF OF PLAINTIFF-APPELLANT 
As plaintiff-appellant has discussed in her 

original and reply briefs herein in 1978 the Department of 
Justice, in settlement of an appeal before this Court, 
issued a directive to all United States attorneys that costs 
were to be sought when the government was the prevailing 
defendant, in a Title VII action, only if the standards set 
out in Christiansburg Garment Co. v. Equal Employment 
Opportunity Comm., 434 U.S. 412 (1978), had been met. The 
defendant has asserted that this policy had been revoked but 
has never produced documentation to support its assertion.

The same issue, that is, the liability of a



Title VII plaintiff for costs in an action against the fed­
eral government, is presently before the United States Dis­
trict Court for the Southern District of Texas (Lewis v. 
N.L.R.B., C .A . No. 76-H-780). In that case also, the United 
States Attorney asserted that the April, 1978 directive had 
been rescinded but initially did not document the alleged 
rescission.

In response to plaintiff's objection to costs in 
Lewis, the government has now formally rescinded the April 
14, 1978, directive through a directive dated April 1, 1983. 
The affidavit of the Assistant Attorney General for the 
Civil Division as well as the directive itself (both of 
which are attached hereto in the appendix) make it clear 
that the action was a formal rescission of the April 14,
1978, memorandum. Therefore, it is also clear that at the 
time the costs in the present action were incurred by the 
government and charged against the plaintiff, the Government's 
established policy, pursuant to a formal directive of the 
Department of Justice, was not to request such costs unless 
the action was brought for harassment, was without merit, 
or was frivolous. As the District Court here held the present 
action did not come within those standards.

Plaintiff submits that under decisions of the 
Supreme Court of the United States this change in the law 
should not be given effect in the present action, since to 
do so would work a manifest injustice on the plaintiff. In

2



a series of decisions beginning with Greene v. United States, 
376 U.S. 149 (1964), the Supreme Court of the United States 
discussed the standards under which a change in the law 
should apply to pending litigation. The question, which the 
Supreme Court addressed as long ago as United States v. 
Schooner Peggy, 1 Cranch 103 (1801), has been dealt with in 
the context of changes in directives by government agencies 
(Thorpe v. Housing Authority of Durham. 393 U.S. 268 (1969)), 
and changes in the law relating to attorneys' fees in civil 
rights cases. (Bradley v. Richmond School Board, 416 U.S.
696 (1974); Hutto v. Finney, 437 U.S. 678 (1978)).

The general rule is that a court is to decide a 
case based on the law as it exists at the time of decision, 
except when to do so would work a manifest injustice on one 
of the parties. Thus, in Greene v. United States, supra, 
following a Supreme Court decision which established lia­
bility on the part of the United States for injury suffered 
by Green as a result of his losing his security clearance. 
(Greene v. McElroy, 360 U.S. 474 (1959)) the government 
changed certain procedures for obtaining relief so as to 
make it impossible for Green to recover. The Court held 
that to allow the government to essentially change its rules 
in mid-stream after liability had been established, would 
work a manifest injustice and therefore hold that the new 
regulations did not apply.

In Thorpe v. Housing Authority of Durham, supra, 
the petitioner had challenged her eviction from a public

3



housing authority pursuant to a 30 day month-to-month tenancy. 
After the case had been briefed in the Supreme Court, the 
United States Department of Housing and Urban Development 
issued a new circular superseding the one under which month- 
to-month tenancies had been used. The new circular required 
public housing authorities to inform tenants of the reasons 
for and to give them an opportunity to respond. The Supreme 
Court remanded the case to the Supreme Court of North Carolina 
for reconsideration in light of the new circular. Thorpe 
v. Housing Authority of the City of Durham, 386 U.S. 670 
(1967) .

The Supreme Court of North Carolina relying on 
Greene v. United States, supra, declined to apply the circular 
under a purported general rule that a change in the law 
should not apply to a pending case. The Supreme Court of 
the United States again granted certiorari and held that the 
general rule was the opposite; that is, changes in the law 
would apply except when manifest injustice would result. 
Finding no such justice in a result that give public housing 
tenants with rights which might otherwise be guaranteed by 
the due process clause of the Constitution, the Supreme 
Court held that the new circular applied fully. 393 U.S. 
at 282-83.

In Bradley v, Richmond School Board, supra, 
the issue was whether the newly enacted amendments to the 
Education act which allowed counsel fees to prevailing plain­

4



tiffs in school desegregation cases should apply to work 
done prior to the date of its enactment. The Court held that 
it would, and elaborated on the manifest injustice exception 
to the general rule, identifying three factors to be exmained: 
"(a) the nature and identitty of the parties, (b) the nature 
of their rights, and (c) the nature of the impact of the 
change in law upon these rights." 416 U.S. at 717. With 
regard to the third factor, manifest injustice "would stem 
from the imposition of new and unanticipated obligations on a 
party without notice or an opportunity to heard." Ia Power 
& Light Co. v. Burlington Northern Inc., 647 F.2d 796, 806 
(8th Cir. 1981).

In Bradley, since the school board could not claim any 
reliance on not having to pay attorneys' fees, or that its 
conduct would have been any different in the face of assess­
ment of attorneys' fees, the Court held that it could not later 
claim that to assess fees would be unjust.

The present case, on the other hand, clearly falls within 
the manifest injustice exception. Plaintiffs' trial attorneys, 
who are experienced civil rights litigators (see Parker v.
Lewis, 670 F.2d 249, 250 (D.C. Cir. 1982)), were fully aware 
of the Department of Justice policy against assessing 
costs against plaintiffs unless a case was frivolous.

!_/ The Supreme court ruled in the same way when faced with
the question of whether the Civil Rights Attorneys' Fees Act of 1976 should apply to work done prior to its effective date. 
Hutto v. Finney, 437 U.S. 678 (1978).

5



Plaintiff, who is a GS-12 employee of the government, in 
pursuing her action based on the advise of counsel therefore 
had no contemplation that if she lost on the merits she 
would be faced with the assessment of costs. Indeed, quite to 
the contrary, she had every reason and right to expect she 
would not in light of the April 14, 1978 directive which, it 
is now clear, was not rescinded until long after the government's 
costs were incurred.

Thus, if costs are now assessed against her she will be 
liable because "of standards which [she] properly believed were 
not applicable to [her] at the time of her acts." Hughes v.
Heylt & Patterson, Inc., 647 F.2d 452, 454 (4th Cir. 1981). See 
also Iowa Public Service Co. v. I.C.C., 643 F.2d 542 (8th Cir. 
1981); Smart v. Porter Paint Co, 630 F.2d 490, 497 (7th Cir. 
1980).

Having relied on the existence of the policy and having 
litigated her case in good faith it would be clearly unjust to 
impose on the plaintiff, or indeed on any other Title VII 
plaintiffs , costs for litigation activities conducted prior to 
April 1 of this year, because of the unannounced unilateral 
action of the government. This type of "sandbagging" would be 
both unjust and inequitable and provides precisely the type of

6



exception to the general rule regarding the assessment of costs 
which requires the reversal of the decision of the Court below.

Respectfully submitted,— s

( 3 < f .  (/< 't & S f f l l /
Jack Greenberg
Charles Stephen Ralston 10 Columbus Circle 
Suite 2030
New York, New York 10019 
(212) 586-8397
Attorneys for Plaintiff-Appellant

CERTIFICATE OF SERVICE

I hereby certify that a copy of this
Supplemental Brief was served on counsel for defendant- 

appellant by depositing the same in the United States mail, 
first class postage prepaid, addressed to Valerie Schuman, Esq., 
Assistant U.S. Attorney, U.S. Courthouse, Washington, D.C.
2 0 0 0 1.

Attorney for Plaintiff-Appellant

Dated: April 22, 1983.

- 7



r~~~

IN THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF TEXAS 

HOUSTON DIVISION

^ - ''T 'd 'STR i’CT  r
. ^ ‘ r £CE1VED c <

ApR 8 \983
DisT. o f p■viycrsToN- "

DONALD R. LEWIS, et. al., 
Plaintiffs,

vs.
NATIONAL LABOR RELATIONS 
BOARD, et. al.,

Defendants.

§
§§ CIVIL ACTION NO. 76-H-780
§
§
§
§
§
§
§

REPLY OF THE UNITED STATES TO 
PLAINTIFFS1 SECOND RESPONSE 

TO DEFENDANTS1 REPLY
On December 1, 1982 this Honorable Court entered its 

final judgment in favor of Defendants in this cause brought 
under Title VII of the Civil Rights Act of 1964, 42 USC 
§2000e-16c. Pursuant to this Court's Order of December 14, 
1982, Defendants filed their bill of costs on January 3,
1983 with a copy sent to Plaintiffs' counsel via certified 
mail on that same date. On or about February 1, 1983, 
Plaintiffs filed their response to Defendants' bill of costs 
and supplementation thereto. The United States filed its 
Reply on March 4, 1983 and Plaintiffs filed an additional 
response on or about March 29, 1983. In its latter response, 
Plaintiff alleged without authority that the Defendant 
should be required to produce "conclusive actual written 
proof that the government has officially rejected its previous 
policy" regarding the seeking of costs in Title VII defensive 
litigation.



Without addressing the merits of this bald allegation, 
the United States respectfully presents to- this Court the 
affidavit of J. Paul McGrath, Assistant Attorney General for 
the Civil Division of the United States Department of Justice. 
This affidavit conclusively establishes the rejection of 
the former policy regarding the seeking of costs in Title VII 
defensive litigation.

Respectfully submitted
DANIEL K. HEDGES 
United States Attorney

By:
Assistant United' States Attorney 
Attorney in Charge 
P.0. Box 61129 
Houston, Texas 77208 
(713) 229-2641



CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Reply of 

the United States to Plaintiffs' Second Response To Defendants' 
Reply was mailed via- certified mail, return receipt requested, 
to Gail J. Wright, Attorney for Plaintiffs, at her last known 
address, to wit: 10 Columbus Circle, Suite 2030, New York,
New York, on this the /) day of April, 1983.



IN THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF TEXAS 

HOUSTON DIVISION

)
)
)
)
)) Civil Action No. 
) 76-H-780
)
)
)
)
)
)

AFFIDAVIT

J. PAUL MCGRATH hereby swears as follows:
1. I am Assistant Attorney General for the Civil Division of the 
United States Department of Justice. As such, I have responsi­
bility over matters of litigating policy, including the policy of 
the Department of Justice with regard to seeking costs as a 
prevailing party, as permitted by Rule 54(d), Federal Rules of 
Civil Procedure.
2. In February 1983 I received an inquiry from Robert Rodrigues, 
Assistant United States Attorney, Southern District of Texas, as 
to this Department's policy with regard to moving for costs as 
prevailing defendant in a Title VII action. I replied that I saw 
no reason to differentiate between Title VII and other actions 
where the United States prevails and that I was not aware of any 
law requiring the United States to do so. I concluded that the 
United States would move for costs as the prevailing party in 
Title VII cases as it would in any other case, and I authorized 
the Assistant United States Attorney to make such a representation

DONALD R. LEWIS, et al.
Plaintiff,

v.
NATIONAL LABOR RELATIONS BOARD, 
et al.

Defendants.



-2-

in court. When later apprised of an April 14, 1978 memorandum of 
a former Assistant Attorney General to the contrary, I sent out a 
superseding memorandum on April 1, 1983 (copy attached as Exhibit 
1) making clear that the Department's policy on seeking costs was 
uniform as I understood it to be when the issue first came to my 
attention.
3. Therefore the policy expressed in my April 1, 1983 memorandum 
was in full force and effect as of March 4, 1983 as represented in 
the Reply of the United States to Plaintiffs' Response to 
Defendant's Bill of Costs filed March 4, 1983, in this action, 
Lewis v. NLRB, Civ. Action No. 76-H-780 (S.D. Tex.)(copy attached 
as Exhibit 2). The representations made in the Reply were true 
and accurate when made and continue

Subscribed to and sworn to before

Notary Public



I . >. I ' i II.:. i. . . '

Ci'-il Division

Office o f  the Assistant Attorney General U'ashinfion. DC. 20530

i A?it 1933

MEMORANDUM
All United States Attorneys

. . > -• AJ. Paul McGrath 
Assistant Attorney General
Civil Division• i /

SUBJECT: Guidelines for Motions for Costs----------------------------------- --------------------------- /
. l

As you are aware, the United States, like any other litigant, 
is entitled to recover the costs of litigation under Rule 54(d), 
Federal Rules of Civil Procedure. I would like to remind you that 
when the government is considering moving for costs as the 
prevailing defendant in litigation, discretion should be exercised 
in determining whether a request for the assessment of costs or a 
reduction in the amount of costs is appropriate. Although it is 
difficult to establish any set rules for determining under what 
circumstances costs should not be sought, there may be cases, for 
example, when the plaintiff's financial situation at the time the 
litigation was initiated or as a result^of the litigation, 
warrants a request for a reduction in costs or a waiver of costs.

If you have any questions concerning this matter, contact my 
Special Assistant, Greg Walden, at 633-5713. This memorandum 
supersedes the memorandum of the Assistant Attorney General, Civil 
Division, dated April 14, 1978.

TO:
FROM: