Copeland v. Martinez Reply Brief for Plaintiff-Appellant

    IN THE
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA

NO. 77-2059 
No. 77-2060

BARBARA COPELAND,
Plaintiff-Appellant, 

- vs -
SAMUEL R. MARTINEZ,

Defendant-Appellee.

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

REPLY BRIEF FOR PLAINTIFF-APPELLANT

ALEXANDER G. PARK
910 17th Street, N.W. 
Suite 812
Washington, D.C. 20006 
(202) 331-1025

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
BILL LANN LEE

10 Columbus Circle 
Suite 2030
New York, New York 10019 
(2120 586-8397

Attorneys for Plaintiff-Appellant



TABLE OF CONTENTS
Cases PAGE
Adams v. Richardson, 480 F .2d 1159

(D.C. Cir. 1973)...................... 5
Brown v. General Services Administration,

425 U.S. 820 (1976 )..................... 2,3,4
JGhandler v. Roudebush, 425 U.S. 840

(1976)................................... 7
Fleischmann Distilling Corp. v. Maier

Brewing Co., 386 U.S. 714 ( 1967 )....... 3
Hackley v. Roudebush, 171 U.S. App. D.C.

376, 520 F .2d 108 (D.C. Cir.
1975) ................................... 7,8

Mount Sinai Hospital of Greater Miami,
Inc. v. Weinberger, 517 F .2d 329
(5th Cir. 1975) ........................ 3

*Parker v. Califano, 182 U.S. App. D.C.
332, 561 F .2d 320 (D.C. Cir.
1976) ................................... 5

Wyandotte Transportation Co. v. United 
/ States, 389 U.S. 191 ( 1976 )............. 2

Other Authorities
General Accounting Office, "System 

for Processing Individual Equal Employ­
ment Opportunity Discrimination Complaints: 
Improvements Needed," FPCD-76-77 
(April 8, 1977).............................. 8

United States Commission on Civil 
Rights, "The Federal Civil Rights 
Enforcement Effort - 1977. To Eliminate 
Employment Discrimination: A Sequel"
(Dec. 1977)...................................
*Authorities principally relied upon.

8

l



IN THE
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA

NO. 77-2059 
No. 77-2060

BARBARA COPELAND,
Plaintiff-Appellant, 

- vs -
SAMUEL R. MARTINEZ,

Defendant-Appellee.

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

REPLY BRIEF FOR PLAINTIFF-APPELLANT

Plaintiff-appellant wishes to respond briefly to some 
of the arguments made by the defendant-appellee.

1. The Government's first argument, as we under­
stand it, is that there remains with the Government a 
residual common law right to obtain counsel fees from a 
Title VII plaintiff under the "American Rule." The 
Government argues that there are no indications of Congres­
sional intent to abrogate the American Rule with regard to 
the Government. We urge that this argument is wrong on a
number of counts.



First, when Congress enacted the counsel fee provi­
sion in Title VII (42 U.S.C. §2000e-5k)of the 1964 Civil 
Rights Act, it clearly intended to abrogate the common 
law right of the United States to obtain counsel fees when 
it was the plaintiff. As we have pointed out in our 
brief-in-chief, a plaintiff may receive counsel fees under 
the American Rule when a defendant conducts litigation in 
bad faith or with "obdurate obstinacy". Nevertheless, 
Congress made the judgment to remove the deterrent of a 
possible award of counsel fees as far as a Title VII 
defendant is concerned when the Government is the plain­
tiff. The question is, did Congress intend to carry over 
that abrogation to situations where the Government was the 
defendant.

Second, the Government's argument, on pages 9 to 11 
of its Erief, completely ignores the impact of the Supreme 
Court's decision in Brown v. General Services Administra­
tion , 425 U.S. 820 ( 1976). In Brown the Supreme Court,
at the Government's urging, held that Title VII was the 
exclusive remedy governing discrimination cases when the 
Government was the defendant. The Court specifically 
held that the provisions of Title VII "govern such issues 
as . attorneys' fees." Id at 832. Thus, the cases
cited by the Government, such as Wyandotte Transportation 
Co. v. United States, 389 U.S. 191 (1967), are inapplicable. 
In Wyandotte, for example, the Court specifically rejected

2



the argument that the statute before it was intended to be
1/the exclusive remedy. The Fifth Circuit made a similar 

holding in Mount Sinai Hospital of Greater Miami, Inc, v . 
Weinberger, 517 F.2d 329 (5th Cir. 1975). Brown, on the
other hand, is the same as Fleischmann Distilling Corp. v . 
Maier Brewing Co., 386 U.S. 714 ( 1967). Title VII, just
as is the Lanham Act in the field of trademark infringe­
ment, is the exclusive remedy abrogating all other 
possible remedies that otherwise might be available in an 
employment discrimination action. Quite simply, the 
Government cannot have it both ways. It was successful 
before the Supreme Court in Brown in arguing that Title 
VII governs such cases exclusively; it cannot now argue 
that despite Brown there exists a residual common law
right to counsel fees, or any other remedy, in a Title VII

2/
action.

1/ Compare, Wyandotte, 389 U.S. at 200 ("But our reading 
of the [Rivers and Harbors Act of 1899] does not lead us 
to the conclusion that Congress must have intended the 
statutory remedies and procedures to be exclusive of all 
others"), with, Brown, 425 U.S. at 835 ("In the case at 
bar, . . . the established principle leads unerringly to 
the conclusion that §717 of the Civil Rights Act of 1964, 
as amended, provides the exclusive judicial remedy for 
claims of discrimination in federal employment").
2/ Indeed, in its Brief in Brown, the government urged 
that Title VII "defines the scope of the district court's 
remedial authority"; and pointed out that:

3



2. It is true, as the Government argues, that 
Congress was concerned that frivolous Title VII suits not 
be encouraged. However, Congress clearly also was con­
cerned that the Government's already overwhelmingly 
superior resources not be magnified by the Government 
being able to obtain counsel fees. As we have noted in 
our main brief, Congress' failure to state the obvious in 
the legislative history when it amended the Act in 1972 
may simply stem from the fact that the language of the 
statute was clear, viz., the Government could not obtain 
counsel fees under any circumstances.

3. The Government seems to argue, on pages 16 and 
17 of its Brief, that because the nominal defendant in a 
Title VII action is the head of the agency, rather than 
the United States, the ban on counsel fees awards to 
the Government does not apply. As we have noted in our 
main brief, however, any award of counsel fees in a Title 
VII action brought against the Government is in fact one

2/ [Cont'd]
Section 706 (k) gives the district court dis­
cretion to allow the complainant, if he pre­
vails, a reasonable attorney's fee as part 
of the costs.

Brief for Respondents, Brown v. General Services Adminis­
tration, (U.S. S.Ct. No. 74-768), at p. 18.

4



on behalf of the United States. In footnote 13 of the
Government's brief appearing on page 18, the Government 
seems to concede that the legislative history in the 1976 
Attorneys Fees Act demonstrates an intent that the Govern­
ment not obtain counsel fees. We simply reiterate that 
this Court held in Parker v. Califano, 182 U.S. App. D.C. 
332, 561 F.2d 320 (D.C. Cir. 1977), that the legislative 
history of the 1976 Act should be looked to in interpret­
ing the meaning of the counsel fee provision of Title 

2/VII.
4. The point of the ban on counsel fees against the 

Government is not to encourage the bringing of suits in 
bad faith, but to remove a possible deterrent to the 
bringing of lawsuits by federal employees. As Parker v . 
Califano notes, there is no public attorney general to

2/ In footnote 13, defendant-appellee suggests that 
the ban on counsel fee awards to the United States in the 
1976 act was limited to those instances when the Govern­
ment was the plaintiff, particularly in tax cases. This 
conclusion is not born out by the legislative history. 
The bill as originally introduced related solely to civil 
rights cases; the clause relating to I.R.S. cases was 
inserted as an amendment to end a filibuster by Senator 
Allen. The colloquy cited in our main brief occurred in 
the House where the concern was solely with civil rights 
cases, e .g .; an action to enforce Title VI against a 
federal agency (see, e.g ., Adams v. Richardson, 480 F.2d 
1159 (D.C. Cir. 1973)).



enforce Title VII against federal agencies. (561 F . 2d at 
331.) The only plaintiffs are individual federal em­
ployees willing to risk their resources by going to 
federal court to vindicate their rights. The threat of an 
award of counsel fees can have a chilling effect on such 
plaintiffs.

The Government asserts on page 23 of its Brief that 
the only plaintiffs who might be deterred are those who 
bring frivolous and harassing suits. This is simply 
incorrect as a statement of fact. It has been our expe­
rience from discussing the problem with persons involved 
in federal EEO enforcement that persons have expressed 
concern and doubt because of the District Court s decision 
in this case who have claims that may be meritorious. 
These federal employees have a natural concern thc.t 
despite their belief that their claims have a valid basis, 
a court may nevertheless at some future date hold that the 
case was frivolous and assess counsel fees against them. 
While we do not pretend to have firm data, we would 
suggest that the Copeland decision has already deterred
the bringing of suits that might have proved to be meri-

1/tor ious.

4/ For example, one of counsel for plaintiff-appellant 
Is counsel in a proceeding under the new Civil Service 
Commission class action regulations. Under those regula­
tions potential clss members are given an opportunity 
to "opt out" at an early stage in the administrative

6



5. Finally, in footnote 16 at page 23 of its Brief, 
the government suggests that the availability of an 
administrative process for the adjudication of EEO com­
plaints that is different from that available to private 
plaintiffs outweighs the fact that there is no public 
attorney-general to act against federal agencies. Without 
getting into an extended explanation of the inadequacies 
of the EEO complaint process available to federal em­
ployees (see, the Supplemental Brief of the NAACP Legal 
Defense and Educational Fund, Inc. as Amicus Curiae, in 
Hackley v. Roudebush, D.C. Cir. No. 73-2072 ), we 
would simply like to make the following points. First, 
the Supreme Court did not, in Chandler v. Roudebush, 425 
U.S. 840, 863-64 (1976), express any view as to the effec­
tiveness or lack thereof of the administrative process. 
It simply noted the government's argument that the avail­
ability of the administrative remedy was a reason for 
federal employees not having the right to a trial de 
novo, but held that it was bound by Congress' choice

4/ [Cont'd]
process. (5 C.F.R. §713.605) We have been informed by 
employees of the agency involved that some class members 
were warned by superiors that they might be liable for 
counsel fees if the case were lost. We have reason to 
believe that at least some class members chose to opt out 
of the class and thereby forfeit potential rights to 
recovery because of concerns having their genesis in the 
Copeland decision.

7



to grant that right. Thus, in Chandler the Court did not
accept or reject either the defense of the administrative 
process by the government or the critique of it presented 
by the petitioner and the amicus curiae. Second, this 
Court, in Hackley v. Roudebush, 171 U.S. App. D.C. 376, 520 
F.2d 108, 137-141 (D.C. Cir. 1975), expressed substantial 
doubts as to the efficacy of the administrative process. 
Third, the Civil Service Commission's complaint procedures 
have been the subject of continuing criticism. See, 
United States Commission on Civil Rights, "The Federal 
Civil Rights Enforcement Effort - 1977. To Eliminate 
Employment Discrimination: A Sequel", pp. 26-38 (Dec.
1977); General Accounting Office, "System for Processing 
Individual Equal Employment Opportunity Discrimination 
Complaints: Improvements Needed" FPCD-76-77 (April 8,
1977). These criticisms were one of the reasons for 
the decision to transfer authority over Federal EEO from 
the Civil Service Commission to the Equal Employment 
Opportunity Commission, which will have jurisdiction over 
all employees covered by Title VII. Reorganization Plan 
No. 1 of 1978 (Reorganization of Equal Employment Oppor­
tunity Programs, Feb. 1978).

For all of these reasons, we urge that whatever 
"benefit" might accrue to a federal employee by his or her 
having to go through the CSC administrative complaint pro­

8



cess before going to court, the existence of that require­
ment does not in any way support a conclusion that the
government may obtain counsel fees in the face of the

5/
clear language of the statute.

CONCLUSION
For the foregoing reasons, the decision of the 

District Court should be reversed.
Respectfully submitted,

/ , / // U. Cd,{ _ y __________________
VALEXANDER G. PARK

910 17th Street, N.W. 
Washington, D.C. 20006 
(202) 331-1025

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
BILL LANN LEE

10 Columbus Circle 
Suite 2030
New York, New York 10019 
(2120 586-8397

Attorneys for Plaintiff-Appellant

5/ If any conclusion were to be drawn from the CSC 
complaint process as it operates in fact, it would be that 
counsel fees should not be awarded in favor of the govern­
ment. One of the primary defects of the process is its 
failure to apply proper legal standards, as developed by 
the courts in Title VII decisions, to the cases that are 
adjudicated. Thus, in the great majority of cases there 
are findings of no discrimination. It is extremely 
difficult, however, for a complainant to know whether the 
case has merit since the correct legal standards have 
not been applied. Thus, he or she may have no recourse but 
to file in Court just to have a proper adjudication of the 
claim.

9



CERTIFICATE OF SERVICE

I hereby certify that I have served copies of the 
Reply Brief for Plaintiff-Appellant on counsel for the 
Appellee by depositing the same in the United States mail, 
first class mail post paid, addressed to:

Alice L. Mattice, Esq. 
Robert E. Kopp, Esq. 
Appellate Section 
Civil Division 
Department of Justice 
Washington, D.C. 20530

Done this 9th day of June, 1978.

'^Attorney for Plaintiff-A ant