Venegas v. Mitchell Brief Amici Curiae

    No. 88-1725

IN THE

i>uprrmp (Eourt of tlir

\

i

October Term, 1989

Juan Francisco Venegas,

vs.
Petitioner,

M ichael R. M itchell,
Respondent.

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT

BRIEF OF AMICI CURIAE SAPERSTEIN & SELIGMAN, 
CALIFORNIA TRIAL LAWYERS ASSOCIATION, CALI­
FORNIA EMPLOYMENT LAWYERS ASSOCIATION, 
PLAINTIFFS EMPLOYMENT LAWYERS ASSOCIA­
TION, MEXICAN AMERICAN LEGAL DEFENSE AND 
EDUCATIONAL FUND, AMERICAN CIVIL LIBERTIES 
UNION FOUNDATION, EQUAL RIGHTS ADVOCATES, 
CENTER FOR LAW IN THE PUBLIC INTEREST AND 

PUBLIC ADVOCATES, INC.

1

1

G uy T. Saperstein 
Mari Mayeda 
D ale L. Brodsky 
Saperstein & Seligman 

505 Fourteenth Street, 
Suite 1150 
Oakland, CA 94612 
415/763-9800 

John A. Powell 
Paul L. Hoffman 
A merican Civil Liberties 

U nion Foundation 
132 West 43rd St.
New York, NY 10036

Atonio H ernandez 
E. R ichard Larson 
Mexican American Legal 

D efense & Educational Fund 
634 South Spring St., 11th Fir. 
Los Angeles, CA 90014 
213/629-2512

T heordore Eisenberg 
Cornell Law School 
Myron Taylor Hall 
Ithaca, NY 14853 
607/255-6477

212/944-9800 Attorneys for Amici



1

QUESTION PRESENTED

Did Congress, in enacting the Civil Rights Attorney’s 
Fees Awards Act of 1976, 42 U.S.C. § 1988, intend to add 
recovery of statutory fees to the already existing system 
of fee agreements without abrogating enforceable written 
contracts?



11

TABLE OF CONTENTS

Page

INTEREST OF AMICI CU RIA E.................................. 1
SUMMARY OF A RG U M EN T.....................................  6
ARGUM ENT....................................................................  7
I. FEE AGREEMENTS ARE ESSENTIAL IN­

DUCEMENTS TO THE PROSECUTION OF 
CIVIL RIGHTS CASES........................................... 7
A. The Fee Agreement Is and Has Always Been

a Critical Inducement to Accepting Represen­
tation of Clients With Meritorious Claims 
Who Cannot Afford to Hire Lawyers.............. 7

B. Issues Regarding Regulation of the Terms
of Fee Agreements Should Be Left to the 
Extensive Fee Regulatory System...................  9

C. The Invalidation of All Fee Contracts Would
be an Unwarranted Affront to the Right to 
C on tract............................................................... 11

II. ENFORCEMENT OF OTHERWISE PERMIS­
SIBLE FEE CONTRACTS IS CONSISTENT 
WITH CONGRESS’ LANGUAGE AND 
INTENT ....................................................................  14
A. The Plain Language of the Statute as Well as

the Legislative History Clearly Demonstrate 
that Congress Did Not Intend to Void the 
Right to C ontract...............................................  14

B. Enforcement of Respondent’s Fee Agreement
Is Consistent with Prior Supreme Court Rul­
ings ........................................................................ 17

III. EXPERIENCE UNDER SECTION 1988
COUNSELS AGAINST INVALIDATING FEE 
CONTRACTS...........................................................  19

CONCLUSION.................................................................  22



Ill

TABLE OF AUTHORITIES

CASES Page
Agarwal v. Johnson, 25 Cal.3d 932 (1979)............... 10
Alcorn v. Anbro Engineering, Inc., 2 Cal.3d 493 

(1970)..........................................................................  10
Alyeska Pipeline Service Co. v. Wilderness Society,

421 U.S. 240(1975).................................................  16
American Tobacco Co. v. Patterson, 456 U.S. 63 

(1982).......................................................................... 14
Blanchard v. Bergeron,____ U .S ._____, 109 S.Ct.

939(1989)..................................................................  18, 19
Blum v. Stenson, 465 U.S. 886 (1984)......................  7, 17
Caminetti v. U.S., 242 U.S. 470 (1917)....................  14
Christianburg Garment Co. v. EEOC, 434 U.S. 412 

(1978).......................................................................... 12
City o f Riverside v. Rivera, A ll  U.S. 561 (1986)....  10
Crawford Fitting Co. v. J. T. Gibbons, 482 U.S. 437 

(1987).......................................................................... 15, 18
Evans v. JeffD., 475 U.S. 717 (1986).......................  8, 16,19
Farmington Dowel Products Co. v. Foster Mfg. Co.,

421 F.2d 61 (1st Cir. 1969)..................................... 7, 11
Hensley v. Eckerhart, 461 U.S. 424 (1983)................  7
INS v. Cardoza-Fonseca, 480 U.S. 421 (1986).........  14
Johnson v. Georgia Highway Express, Inc., 488 F.2d 

714 (5th Cir. 1974)...................................................  16
Kelly v. Robinson, 479 U.S. 36 (1986).......................  14
Lindy Bros. Builders, Inc. v. American Radiator &

Standard Sanitary Corp., 540 F.2d 102 (3d Cir.
1976)...........................................................................  7

Lockheed Minority Solidarity Coalition v. Lockheed 
Missiles & Space Co., 406 F. Supp. 828 (N.D.
Cal. 1976)...................................................................  22

Manhart v. City o f Los Angeles, 652 F.2d 904 (9th 
Cir.), vacated and remanded on other grounds,
461 U.S. 951 (1983).................................................  7

Oki America, Inc. v. Microtech International, Inc.,
872 F.2d 312 (9th Cir. 1989)................................. 13



IV

Page

Pennsylvania v. Delaware Valley Citizens Council 
for Clean Air, 478 U.S. 556 (1986)........................ 11

Pennsylvania v. Delaware Valley Citizens Council 
for Clean Air, 483 U.S. 711 (1987)........................ 18

Stanford Daily v. Zurcher, 64 F.R.D. 680 (N.D. Cal.
1974)...........................................................................  17

Swann v. Charlotte-Mecklenburg Bd. o f Education,
66 F.R.D. 483 (W.D.N.C. 1975)............................  17

United States v. Hohri, 482 U.S. 64 (1987).............  14
Wards Cove Packing Co. v. Atonio,____ U.S______,

109 S.Ct. 2115 (1989)..............................................  20
STATUTES AND REGULATIONS
15 U.S.C. § 15g( 1) (A) (b ) ............................................ 15
28 U.S.C. § 1821...........................................................  15
28 U.S.C. § 2412(d)(1) (A).........................................  15, 17
ABA Code of Professional Responsibility 

DR 1-106 (1981).......................................................  9
ABA Informal Opinion 86-1521................................. 11
ABA Model Rules of Professional Conduct 

Rule 1.5 (1983)..........................................................  9
American-Mexican Chamizal Convention Act of 

1964, 22 U.S.C. §277d-21......................................  15,16
Antitrust Civil Process Act Amendments Pub. L.

94-435, 90 Stat. 1394 (1976) 15 U.S.C. §§ 15b-h. 15
Cal. Civil Code § 5 1 ...................................................... 10
Cal. Const., Art. 1..........................................................  13
Cal. Govt. Code § 12940..............................................  10
California Business & Professions Code § 6200, et 

seq.................................................................................  9
California Business and Professions Code § 6000, 

et seq............................................................................  9
California State Bar Rules of Professional Responsi­

b ility ............................................................................  9
Civil Rights Attorney’s Fees Awards Act Pub. L.

94-559, 90 Stat. 2641, 42 U.S.C. § 1988............... passim
Coast Guard Act 14, U.S.C. § 4 3 1(c)......................... 15



Const., Art. I § 10..........................................................  13
Federal Tort Claims Act, 28 U.S.C. § 2678.............  15, 17
International Claims Settlement Act of 1949, 22 

U.S.C. §§ 1623(f), 16310), 1641 (p), 1642(m), 
1643(k)........................................................................ 15

Japanese-American Evacuation Claims Act of 1948,
50 U.S.C. App. § 1985.............................................. 16

Military Personnel and Civilian Employees Claims 
Act of 1964 as amended, 31 U.S.C. § 3721 (i) ...... 16

Organic Act of Guam, 48 U.S.C. § 1424..................  16
Servicemen’s Group Life Insurance Act, 38 U.S.C.

§ 784(g)........................................................................ 16
Social Security Act, 42 U.S.C. § 406(a)...................  15,17

Other Authorities
3 C. D. Sands Sutherland Statutory Construction 

§46.01 (4th Ed. 1986).............................................. 14
Administrative Office of the United States Courts 

1984 Annual Report of the D irector.....................  20
Eisenberg & Schwab, The Reality o f Constitutional 

Tort Litigation, 72 Cornell L. Rev. 641 (1987)... 20, 21
Mandatory Arbitration o f Attorney-Client Fee Dis­

putes: A Concept Whose Time Has Come, 14 
Toledo L. Rev. 1205(1983).................................... 9,10

Schwab & Eisenberg, Explaining Constitutional 
Tort Litigation: The Influence o f The Attorneys 
Fee Statute and the Government as Defendant,
73 Cornell L. Rev. 719 (1988)...............................  8, 21



IN THE

g>uprnttr (Enurl of lltutpfo States

OctoberT erm, 1989

Juan Francisco Venegas,

vs.
Petitioner,

M ichael R. M itchell,
Respondent.

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT

BRIEF OF AMICI CURIAE SAPERSTEIN & SELIGMAN, 
CALIFORNIA TRIAL LAWYERS ASSOCIATION, CALI­
FORNIA EMPLOYMENT LAWYERS ASSOCIATION, 
PLAINTIFFS EMPLOYMENT LAWYERS ASSOCIA­
TION, MEXICAN AMERICAN LEGAL DEFENSE AND 
EDUCATIONAL FUND, AMERICAN CIVIL LIBERTIES 
UNION FOUNDATION, EQUAL RIGHTS ADVOCATES, 
CENTER FOR LAW IN THE PUBLIC INTEREST AND 

PUBLIC ADVOCATES, INC.

INTEREST OF AMICI CURIAE 
Amici curiae represent an array of private civil rights 

attorneys and trial lawyers’ organizations who depend on fee 
agreements in their representation of civil rights, environ­
mental, and public interest plaintiffs. Amici also represent 
numerous non-profit civil rights and public interest organiza­
tions which are actively involved in civil rights cases.
The amici are:



2

SAPERSTEIN & SELIGMAN, P.C., Oakland, California

This seventeen-year-old, 32-lawyer firm specializes in 
plaintiffs’ employment discrimination litigation, both indi­
vidual and class actions. Contingent fee agreements are 
commonly chosen by clients because civil rights victims 
typically cannot afford any other type of fee arrangement. 
Frequently, the client is not obligated to pay for either costs 
or legal services during the course of the litigation.

A contingent fee agreement which entitles the firm to a 
percentage of the recovery is an important incentive for 
undertaking the risk of representing civil rights plaintiffs. 
Prohibiting the firm from entering into contingent fee agree­
ments would seriously deter them from representing civil 
rights plaintiffs.

CALIFORNIA TRIAL LAWYERS ASSOCIATION

The California Trial Lawyers Association (CTLA) is a 
statewide organization of plaintiffs’ trial attorneys. CTLA’s 
approximately 6,500 members derive legal fees from contin­
gent fee work and have represented hundreds of civil rights 
plaintiffs on contingent fee contracts. If CTLA’s members 
were prohibited from entering into contingency fee agree­
ments, many would simply not handle civil rights cases.

CALIFORNIA EMPLOYMENT 
LAWYERS ASSOCIATION

The California Employment Lawyers Association is a 
statewide organization of plaintiffs’ attorneys who practice 
employment and discrimination law. Members of this organi­
zation are involved in employment and civil rights cases and 
commonly accept representation of plaintiffs on a contingent 
fee basis. Currently, there are a small number of attorneys left 
in California willing and capable of prosecuting employment



3

discrimination cases on behalf of plaintiffs. This figure would 
dwindle to almost nothing if employment attorneys were 
prohibited from contracting with their clients on a contin­
gency basis for a percentage of the recovery.

PLAINTIFFS EM PLOYM ENT 
LAWYERS ASSOCIATION

The Plaintiffs Employment Lawyers Association (PELA) 
is a nationwide organization of plaintiffs employment attor­
neys. Members of PELA are involved in employment, civil 
rights and public interest litigation and rely on contingent fee 
agreements to pursue these cases. If statutory fees were the 
only fee recovery in civil rights cases, many of PELA’s 
members would be out of the business of prosecuting civil 
rights claims.

MEXICAN AMERICAN LEGAL DEFENSE 
AND EDUCATIONAL FUND

The Mexican American Legal Defense and Educational 
Fund (MALDEF) is a national civil rights organization estab­
lished in 1967. Its principal objective is to secure, through 
litigation and education, the civil rights of Hispanics living 
in the United States. This objective is pursued in part by 
MALDEF’s provision of free legal representation to civil 
rights plaintiffs in nonmonetary cases. MALDEF recognizes, 
however, that the rights of Hispanics are also vindicated in 
cases involving potentially sizeable monetary recovery by 
private counsel retained on a contractual basis. Both types 
of representation are essential to securing the civil rights of 
Hispanics.



4

AMERICAN CIVIL LIBERTIES UNION FOUNDATION, 
New York, New York

AMERICAN CIVIL LIBERTIES UNION FOUNDATION 
OF SOUTHERN CALIFORNIA 

Los Angeles, California
The American Civil Liberties Union (“ACLU”) is a non­

profit public interest organization with more than 275,000 
members and more than 50 affiliates in nearly every state, 
including the ACLU of Southern California (“ACLU/SC”). 
Both the ACLU and its affiliates are dedicated to protecting 
the civil rights and civil liberties of all persons in the United 
States. The ACLU, through its legal staff and hundreds of 
volunteer attorneys, has been involved in hundreds of cases 
brought under the federal civil rights laws to vindicate these 
rights.

Though the ACLU does not sponsor cases on a contingent 
fee basis it has a strong interest in maintaining the availability 
of attorneys fee awards to private counsel involved in bringing 
civil rights actions. To the extent that the Civil Rights 
Attorney’s Fees Awards Act of 1976,42 U.S.C. Section 1988, 
is interpreted in a way that creates disincentives for the 
private bar to handle civil rights cases, the ACLU believes 
that the purposes of the civil rights laws will be undermined 
and many deserving civil rights plaintiffs will remain 
unrepresented.

EQUAL RIGHTS ADVOCATES, INC.,
San Francisco, California

Equal Rights Advocates, Inc. (ERA) is a non-profit public 
interest law firm dedicated to achieving equality of rights 
under the law for women. ERA regularly handles intake and 
referral of sex discrimination matters, and has great difficulty 
finding attorneys willing to represent clients who cannot 
afford legal counsel.



5

CENTER FOR LAW IN THE PUBLIC INTEREST,
Los Angeles, California

The Center for Law in the Public Interest (CLIPI) is a 
non-profit public interest law firm. CLIPI’s public interest 
litigation includes employment discrimination and environ­
mental cases. The Center regularly handles intake and referral 
of civil rights, environmental and public interest litigation. 
Such cases are virtually impossible to refer to private counsel 
where the client cannot afford the cost of legal services.

PUBLIC ADVOCATES, INC., San Francisco, California.

Public Advocates, Inc. is a non-profit public interest law 
organization which has been representing poor and minority 
individuals and organizations since 1971. The bulk of Public 
Advocates’ litigation is in the fields of education, health 
care, homelessness, economic development and employment. 
Many, if not most of Public Advocates’ cases are co-counseled 
with private attorneys and legal services organizations. The 
availability of co-counseling arrangements with private attor­
neys would be impaired by a prohibition against private fee 
contracts.



6

SUMMARY OF ARGUMENT

The amici submitting this brief are private practitioners 
and non-profit public interest and civil rights organizations 
that are litigating hundreds of cases under fee shifting statutes. 
Unless privately negotiated fee agreements are available, 
the congressional goal of enabling clients to find competent 
lawyers needed to enforce civil rights and environmental 
legislation will be frustrated. The already severely diminis­
hing number of attorneys willing to handle such cases would 
decrease even further if the Court were to take away one of 
the traditional means for attorneys to undertake representa­
tion for clients who cannot afford legal services—the contin­
gent fee contract.

Fee contracts are subject to regulation under state and 
federal statutes and are even further regulated by state, local 
and American Bar Association ethical rules and regulations 
which in this case includes the Rules of Professional Conduct 
of the State Bar of California. Usurpation of this extensive 
fee regulation system was not contemplated by Congress 
when it enacted the civil rights fee shifting provisions.

As there is no indication that Congress intended to 
eliminate the contract rights of attorney and client, the deci­
sion of the Ninth Circuit should be affirmed.



7

ARGUMENT

I.

FEE AGREEMENTS ARE ESSENTIAL 
INDUCEMENTS TO THE PROSECUTION 

OF CIVIL RIGHTS CASES

A. The Fee Agreement Is and Has Always Been a Critical 
Inducement to Accepting Representation of Clients With 
Meritorious Claims Who Cannot Afford to Hire Lawyers

Enforcement of privately negotiated fee agreements 
which permit the attorney to recover a percentage of the 
damages is consistent with the aim of the fee shifting statutes, 
which seek to provide an incentive for attorneys to represent 
clients with meritorious civil rights and environmental 
claims. This fundamental congressional purpose has been 
repeatedly recognized by this Court.1

The importance of the fee agreement as an inducement 
is demonstrated by its consistent use in the legal market place 
in civil rights and comparable complex federal litigation.2 
Unlike civil rights defendants, civil rights plaintiffs often lack 
the resources to pay for representation during the course of 
litigation. Indeed, clients represented by amici frequently

1 See Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (“The 
purpose of § 1988 is to ensure ‘effective access to the judicial 
process’ for persons with civil rights grievances. H.R. Rep. No. 94- 
1558, p. 1 (1976).”); Blum v. Stenson, 465 U.S. 886, 897 (1984) 
(“The legislative history [of § 1988] explains that ‘a reasonable 
attorney’s fee’ is one that is ‘adequate to attract competent counsel, 
bu t . . .  [that does] not produce windfalls to attorneys.’ S. Rep. No. 
94-101 l,p.  6(1976).”).

2 See, e.g., Manhart v. City o f Los Angeles, 652 F.2d 904 (9th 
Cir.), vacated and remanded on other grounds, 461 U.S. 951 (1983); 
Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary 
Corp.. 540 F.2d 1021 (3d Cir. 1976) (antitrust case); Farmington 
Dowel Products Co. v. Foster Mfg. Co., 421 F.2d 61 (1st Cir. 1969) 
(“Farmington /”).



8

cannot even afford to pay for the non-fee costs of litigation. 
Therefore, private civil rights plaintiffs’ counsel may have no 
realistic alternative but to enter into fee arrangements in 
order to meet the costs of running their practices.

Evans v. Jeff D., 475 U.S. 717 (1986) has made the 
practical need for fee agreements in cases involving fee 
shifting statutes even greater. In Evans, this Court held that 
plaintiffs in a civil rights action could waive the right to 
statutory attorneys’ fees. Given the possibility that the client 
may waive statutory attorney’s fees altogether, separate fee 
contracts between plaintiffs and their counsel have become 
essential. In an Evans situation, the only protection available 
for private attorneys is to have in effect a fee agreement. If 
such agreements are not available in fee shifting cases, the 
threat of forced fee waivers under Evans would make civil 
rights cases financially devastating for plaintiffs’ attorneys. 
Not only would such cases not be financially competitive with 
other cases, they would lead to financial ruin for even the 
most successful of plaintiffs’ firms.

Failure to enforce ethically permissible fee agreements 
will undermine the economic viability of the sole practitioners 
and small firms that make up the bulk of the experienced 
private civil rights bar, and will inevitably lead to the with­
drawal of many of the most experienced and talented attor­
neys from this practice.3 Thus, invalidation of privately 
negotiated fee contracts would be a serious, and perhaps 
devastating, setback to the enforcement of the civil rights and 
environmental laws. The only beneficiaries of such a financial 
disincentive would be the violators of those laws.

3 Contrary to Petitioner’s assertion at page 28 of his brief, most 
civil rights litigation is brought by small private firms and solo 
practitioners. See Schwab & Eisenberg, Explaining Constitutional 
Tort Litigation, 73 Cornell L. Rev. 719,768 (1988).



9

B. Issues Regarding Regulation of the Terms of Fee Agree­
ments Should Be Left to the Extensive Fee Regulatory 
System

Many of the issues raised by Petitioner involve fact 
specific matters of contract interpretation and ethical princi­
ples that are best left to the extensive enforcement mecha­
nisms already in place among local, state and national bar 
associations, state regulatory provisions, and fee arbitration 
panels which routinely regulate attorney-client fee disputes. 
In this case, this includes the ABA Model Rules of Profes­
sional Conduct, Rule 1.5 (“Fees”) (1983), the ABA Code 
of Professional Responsibility DR 1-106 (“Fees for Legal 
Services”) (1981), as well as various provisions of the Califor­
nia Business and Professions Code, § 6000, et. seq., and the 
California State Bar Rules of Professional Responsibility. In 
addition, numerous local agencies such as state and county 
bar associations have fee arbitration panels which routinely 
consider questions regarding the enforcement of fee 
agreements.4

4 See Mandatory Arbitration o f Attorney-Client Fee Disputes: 
A Concept Whose Time Has Come, 14 Toledo L. Rev. 1205 (1983). 
These fee arbitration agencies include: Alaska Bar R. 35-42; Rules 
of Comm, of the State Bar of Ariz. on Arbitration of Fee Disputes; 
By-Laws of the Legal Fee Arbitration Comm, of the Bar Ass’n of 
Greater Cleveland and the Rules and Regulations of its Legal Fee 
Arbitration Bd.; Rules for Arbitration for Legal Disputes, Conn. 
Bar Ass’n; Rules of the Fee Dispute Comm, of the Dallas Bar Ass’n; 
Model Fee Arbitration Bylaws, as adopted by the Fla. Bar Ass’n; 
State Bar of Ga.’s Fee Arbitration R.; Rules of the Idaho State Bar 
on Arbitration of Fee Disputes; Rules for the Arbitration Comm., 
as approved by the Iowa State Bar; Mich. Gen. CT.R.979; Legal 
Fee Arbitration Plan, as adopted by the Ky. Bar Ass’n; Resolution 
of Fee Disputes, N.H. Bar Ass’n; NJ.Ct.R. 1:20A; Section 739, By- 
Laws of the Philadelphia Bar Ass’n Rules to the Fee Dispute 
Comm, of the Philadelphia Bar Ass’n; Procedures of the Legal Fee 
Arbitration Bd. of the Minn. State Bar; Rules of the Comm, on 
Resolution of Fee Disputes, the Bar Ass’n of Metropolitan St. Louis; 
Fee Arbitration Rules, as adopted by the State Bar of Wis.; Cal. 
Bus. & Prof. Code § 6200, et seq.: Rules of Procedures for the



10

Reference to state and local fee regulation is not only 
prudent, but will frequently be necessary in civil rights and 
other fee shifting cases due to the common existence of 
pendent state claims. Thus, fee agreements in fee shifting 
cases frequently apply to both federal and state law claims. 
For example, in City o f Riverside v. Rivera, 477 U.S. 561 
(1986), plaintiffs prevailed on both their federal claims and 
their state law negligence claims. Id. at 564. Had plaintiffs’ 
counsel wished to enforce a fee contract in that case, the 
Tenth Amendment would require that the fee contract based 
on the state law tort causes of action be governed and enforced 
in accordance with state law.

The same is true of discrimination cases in California, 
where the state legislature has enacted state statutes prohibit­
ing discrimination in employment, housing and public ac­
commodations and services. See Cal. Govt. Code § 12940, 
et. seq.; Cal. Civil Code § 51. Other pendent state claims are 
often included in federal civil rights cases in California, 
including intentional infliction of emotional distress predi­
cated on a discrimination theory.5 In these cases involving 
both federal and state discrimination causes of action, the 
California courts would have the right to determine and 
regulate the attorneys’ fees contract questions in accordance 
with local and state bar professional rules of responsibility, 
(footnote 4 continued from page 9)

Hearing of Fee Arbitration Proceedings by the Alameda County 
Bar Ass’n; Rules for Arbitration Proceedings for Attorney Fee 
Disputes, Beverly Hills Bar Ass’n; Rules for Conduct of Fee Dis­
putes and Other Related Matters, Los Angeles County Bar Ass’n; 
Rules of Conduct of Fee Arbitrations by the Fee Arbitration Comm, 
of the Santa Clara County Bar Ass’n; San Diego County Bar Ass’n 
Rules of the Arbitration Comm. Id. at 1226 n.104.

5 See. e.g., Agarwal v. Johnson, 25 Cal.3d 932 (1979) (inten­
tional infliction of emotional distress based on racial epithets); 
Alcorn v. Anbro Engineering, Inc., 2 Cal. 3d 493 (1970) (supervisor 
shouting epithets to plaintiff).



11

California contract law, and the fee contract provisions of 
the California Business & Professions Code.

C. The Invalidation of All Fee Contracts Would be an Unwar­
ranted Affront to the Right to Contract

The result sought by Petitioner would invalidate fee 
agreements under a number of statutes and would not be 
limited to interfering with the right to contract only in civil 
rights cases. This Court and Congress have stated that fee 
shifting statutes are to be interpreted uin pari materia”.6 
Thus, contracts regarding environmental, civil rights, and 
other fee shifting statutes are subject to invalidation regard­
less of whether or not the client is willing to abide by the 
terms of the contract, as was the case in Farmington Dowel 
Products Co. v. Foster Mfg. Co., 421 F.2d 61 (1st Cir. 1969).7

Since the statutory fee is only awarded if the client wins, 
and no statutory fee is awarded if the client loses, the radical 
result sought by Petitioner— an order prohibiting the attorney 
in this and consequently any fee shifting case from collecting 
a fee except the statutory fee— imposes on the attorney and 
client a forced contingent arrangement. The result of this 
forced bargain would be that the right to contract for even a 
standard hourly agreement is abrogated.8 Attorney and client

6 See, e.g., Pennsylvania v. Delaware Valley Citizens’ Council 
for Clean Air, 478 U.S. 556, 559 (1986) (“Delaware Valley /"); S. 
Rep. No. 94-1011, 94th Cong., 2d Sess., 6 (1976).

7 Farmington is considered the leading case on the relationship 
between the statutory and ethical tests which govern fee amounts. 
In Farmington, an antitrust case, the Court held that the statutory 
and ethical tests for a reasonable fee were different. 421 F.2d at 
90. It instructed the district court to determine the “maximum 
ethically allowable fee," to assess the reasonable statutory fee from 
defendant, and to require plaintiff to pay only such further amount 
as would constitute a fee that was not excessive under the ethical 
standards. Id. at 87.

8 This result raises serious ethical concerns. In 1986 the 
American Bar Association Standing Committee on Ethics and 
Professional Responsibility issued Informal Opinion 86-1521, stat­
ing that it is unethical for a lawyer not to offer clients alternative 
fee arrangements before accepting a case on a contingent-fee basis.



12

should be encouraged— not prohibited from— negotiating fee 
contracts which best suit the needs and financial circum­
stances of each case.

Invalidation of fee contracts also unnecessarily interferes 
with economic regulation which occurs in the legal market­
place. If statutory fees alone were sufficient to attract an 
adequate supply of attorneys, then these types of agreements 
would dominate the marketplace. If, however, statutory fees 
were insufficient consideration, civil rights plaintiffs will have 
to have some “bargaining chip” to induce attorneys to accept 
their cases. Traditional bargaining tools which clients can 
utilize to obtain counsel include contemporaneous hourly 
agreements, lump sum “retainer” agreements, and contingent 
fee agreements.

The ruling sought by Petitioner would also interfere with 
all fee contracts negotiated between civil rights defendants 
and their counsel. This Court has recognized that the civil 
rights statutes, like “many of the statutes”, have “flexible” 
fee provisions which authorize “the award of attorney’s fees 
to either plaintiffs or defendants”. Christianburg Garment 
Co. v. EEOC, 434 U.S. 412,416 (1978).9 Since either plaintiff 
or defendant may be a “prevailing party” within the meaning 
of the civil rights fee statutes, limiting fees to those available 
under a statutory award would invalidate a broad array of 
plaintiffs’ and defendants’ free market contracts. Surely, 
Congress never intended such interference with the rights of 
parties to negotiate free market contracts regarding payment 
for legal representation.

Thus, to interpret the Civil Rights Attorney’s Fees 
Awards Act as precluding private fee agreements between 
clients and their attorneys would be a substantial burden on 
those parties’ right to enter contracts. In interpreting such

9 The Christianburg standard, although decided under Title 
VII’s fee provision, applies to numerous fee statutes. See Chris­
tianburg, 434 U.S. at 416 n.7.



13

legislation the importance of the individual’s right freely to 
enter into contracts should not be overlooked. The impor­
tance of the right to contract is underscored by the contract 
clauses of the Federal and State Constitutions.10

While courts and legislatures alike have been more will­
ing to substitute their own judgment of what is a sound and 
worthwhile business transaction for the judgments of private 
individuals in the marketplace, this is not appropriate here. 
As Judge Alex Kozinski stated in a recent opinion:

Perhaps most troubling, the willingness of courts to 
subordinate voluntary contractual arrangments to 
their own sense of public policy and proper business 
decorum deprives individuals of an important mea­
sure of freedom. The right to enter into contracts— 
to adjust one’s legal relationships by mutual agree­
ment with other free individuals— was unknown 
through much of history and is unknown even today 
in many parts of the world. Like other aspects of 
personal autonomy, it is too easily smothered by 
government officials eager to tell us what’s best for 
us. The recent tendency of judges to insinuate 
tort causes of action into relationships traditionally 
governed by contract is just such overreaching. It 
must be viewed with no less suspicion because the 
government officials in question happen to wear 
robes.

Oki America, Inc. v. Microtech 
International, Inc.

872 F.2d 312, 316 (9th Cir. 1989) 
(Kozinski, J., concurring)

Judge Kozinski’s remarks regarding the expansion of tort 
causes of action into the contract area applies with even 
greater force to the proposed interpretation of the Civil Rights 
Attorney’s Fees Awards Act. For, if the Court interprets that 
Act as Petitioner suggests, it will obliterate the free market 
rights of the parties and their attorneys to enter into private 
contracts and will place the entire matter of what consider­

10 Const., Art. I § 10; see. e.g., Cal. Const., Art. I.



14

ation attorneys will be paid for representing such clients— 
normally the subject of free negotiation between client and 
attorney— into the hands of the judiciary. This affront to 
contract rights should not be lightly embraced by this Court.

II.

ENFORCEMENT OF OTHERWISE 
PERMISSIBLE FEE CONTRACTS IS CONSISTENT

WITH CONGRESS’ LANGUAGE AND INTENT

A. The Plain Language of the Statute as Well as the Legisla­
tive History Clearly Demonstrate that Congress Did Not 
Intend to Void the Right to Contract

Petitioner has postulated that the legislative history of 
the Civil Rights Attorney’s Fees Awards Act of 1976“ sup­
ports the abrogation of the right of attorney and client to 
agree to the terms of an ethically permissible fee contract. 
To the contrary, the clear language of the statute, as well as 
its legislative history, belie this view.

It is a fundamental rule of statutory construction that 
“the meaning of the statute must, in the first instance, be 
sought in the language in which the act is framed, and if that 
is plain, . . .  the sole function of the courts is to enforce it 
according to its terms.” Caminetti v. U.S., 242 U.S. 470,485 
(1917). If the language is unambiguous, it is inappropriate to 
resort to legislative history to interpret the statute. American 
Tobacco Co. v. Patterson. 456 U.S. 63, 68 (1982). See also 
INS  v. Cardoza-Fonseca. 480 U.S. 421, 431-32 (1986); Kelly 
v. Robinson, 479 U.S. 36, 43 (1986); United States v. Hohri, 
482 U.S. 64 (1987); 3 C.D. Sands, Sutherland Statutory 
Construction, §46.01 (4th Ed. 1986). 11

11 The Civil Rights Attorney’s Fees Awards Act, Pub. L. 
94-559, 90 Stat. 2641, as set forth in 42 U.S.C. § 1988.



15

Just weeks before Section 1988 was enacted, Congress 
passed the Antitrust Civil Process Act amendments of 1976.12 
During the course of the lengthy debates on the antitrust 
amendments, the legislators focused considerable attention 
on the availability of contingent fees for private attorneys. 
As a consequence, both the House and Senate ultimately 
agreed to explicitly prohibit private attorneys from collecting 
contingency fees based on a percentage of monetary relief 
unless the award of fees is determined by a court. See 15 
U.S.C. § 15g( 1 )(A) and (B).

In contrast to the contingent fee prohibition in the 
antitrust amendments, Congress included no limitation on 
private fee contracts in Section 1988. In Crawford Fitting 
Co. v. J.T. Gibbons, 482 U.S. 437 (1987), this Court held that 
Congress had enacted 28 U.S.C. § 1821 as a limitation on the 
amount of reimbursement a district court may award to a 
prevailing party for expert witness fees. Thus, Justice Rehn- 
quist aptly observed, “[i]t is . . .  clear that when Congress 
meant to set a limit on fees, it knew how to do so.” Id. at 
442. Likewise, Congress unquestionably knew how to place 
limits on the availability of fees under a private fee contract, 
but it did not do so when it passed the Civil Rights Attorney’s 
Fees Awards Act. Petitioners cannot now impute such limita­
tion in the absence of an expression of clear congressional 
intent.13

12 The Antitrust Civil Process Act Amendments, Pub. L. 94- 
435, 90 Stat. 1394, 1395, 1396 (1976), as set forth in 15 U.S.C. 
§§ 15b-h.

13 Moreover, had Congress intended to limit attorneys’ fees 
under § 1988, it could have imposed a cap on fees as it has in 
numerous other statutes. See, e.g.. Equal Access to Justice Act, 28 
U.S.C. § 2412(d)(1)(A) ($75/hour in absence of special circum­
stances); Federal Tort Claims Act, 28 U.S.C. § 2678 (fee limited to 
20% of administrative settlement; 25% of judgment); Social Security 
Act, 42 U.S.C. § 406(a) (fee limited to 25% of award); Coast Guard 
Act, 14 U.S.C. § 431(c) ($10 maximum); International Claims 
Settlement Act of 1949, e.g., 22 U.S.C. §§ 1623(f), 1631 (j), 1641(p), 
1642(m), 1643(k) (10 percent maximum); American-Mexican



16

Even if reference is made to the legislative history of 
Section 1988, it readily demonstrates that the primary pur­
pose of the Fees Act was “the promotion of respect for civil 
rights” rather than the imposition of limits on contract rights, 
as Petitioner suggests. See, e.g., S. Rep. No. 94-1011, p.5 
(1976); Evans v. JeffD., 475 U.S. 717, 731-32, 89 L. Ed. 2d 
7 4 7 ,106S.Ct. 1531(1976). According to the chief proponents 
of the legislation, the impetus for enacting the Fees Act was 
to restore the status quo after the Supreme Court decided in 
Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 
240 (1975) that attorneys’ fees could not be awarded in the 
absence of a specific authorizing statute. See, e.g., Senate 
Report No. 94-1011, pp. 1,4,5; House Report No. 94-1558, 
pp. 2,3,9. The scant commentary cited by Petitioner as 
criticism of attorneys seeking fees for their work pales in 
comparison to the strong emphasis Congress placed on en­
couraging meritorious civil rights actions.

Indeed, both the Senate and House Reports cited the 
seminal Title VII case, Johnson v. Georgia Highway Express, 
Inc., 488 F.2d 714 (5th Cir. 1974), for the proposition that 
the reasonableness of fee awards under § 1988 should be 
determined in accordance with the 12 standards articulated 
by the Johnson court. S. Rep. No. 94-1011, p.6 (1976); H.R. 
Rep. No. 94-1558, p.8 (1976). It is noteworthy that among 
the 12 factors for determining fee awards is “whether the fee 
is fixed or contingent.” Johnson, supra, at 718 (emphasis 
added). Thus, Congress was not only aware that attorneys 
separately contract with their clients for fees on a contingency 
basis but also affirmed its support for the practice.
[footnote 13 continued from page 15)

Chamizal Convention Act of 1964, 22 U.S.C. §277d-21 (10 percent 
maximum); Japanese-American Evacuation Claims Act of 1948, 
50 U.S.C. App. § 1985 (10 percent maximum); Organic Act of 
Guam, 48 U.S.C. § 1424c(f) (5 percent maximum); Military Person­
nel and Civilian Employees Claims Act of 1964, as amended, 31 
U.S.C. § 3721 (i) (10 percent maximum); Servicemen’s Group Life 
Insurance Act, 38 U.S.C. § 784(g) (10 percent maximum).



17

Congress’ intent to add statutory fees to the then existing 
fee incentives available to clients is also evidenced by refer­
ence to the cases where the fee standards were “correctly 
applied.” Blum v. Stenson, 465 U.S. 886, 893-4 (1984) 
(quoting with approval from legislative history). In Stanford 
Daily v. Zurcher, 64 F.R.D. 680 (N.D. Cal. 1974), plaintiffs 
were able to obtain counsel through use of a lump sum 
or “retainer” payment. The fee agreement provided that 
plaintiffs would pay counsel “$5,000 plus whatever funds 
they could raise from interested third parties.” Id. at 686. 
Pursuant to this fee contract, counsel was paid $8,500. Id.

Similarly, in another case cited with approval by Con­
gress, Swann v. Charlotte-Mecklenburg Bd. o f Education, 66 
F.R.D. 483 (W.D.N.C. 1975), counsel for plaintiffs received 
some payment of fees and costs from the NAACP Legal 
Defense and Educational Fund, Inc. Id. at 486. The Court 
specifically acknowledged the existence of the private fee 
arrangement. Id.

If Congress had desired to regulate private fee agree­
ments, it would have evidenced this intent by placing a dollar 
amount limit or percentage “cap” on civil rights attorneys’ 
fees, as it has done in numerous other fee statutes.14 The 
absence of these “supervisory” fee provisions in the Civil 
Rights Attorney’s Fees Awards Act further demonstrates that 
the statutory fee provision was not intended to abrogate 
private arrangements negotiated by the client and his or her 
attorney.

B. Enforcement of Respondent’s Fee Agreement Is Consistent 
with Prior Supreme Court Rulings

In each of four recent decisions addressing issues arising 
under fee shifting statutes, this Court has acknowledged the

14 See, e.g., 28 U.S.C. § 2412(d)(1)(A) (fee awards under Equal 
Access to Justice Act limited to $75/hour in absence of special 
circumstances); Federal-Tort Claims Act, 28 U.S.C. §2678 (fee 
limited to 20% of administrative settlement; 25% of judgment or 
settlement); Social Security Act, 42 U.S.C. § 406(a) (fee limited to 
25% of award).



18

viability of fee agreements privately negotiated by plaintiffs 
and their attorneys. In Crawford Fining, the right to privately 
contract for fees was preserved. In that case, the Court limited 
reimbursement to a prevailing party for expert witnesses to 
$30.00 per day. Accordingly, a federal court is bound by the 
limits of §§ 1821 and 1920 “absent explicit statutory or 
contractual authorization” Id. at 445 (emphasis added).

Likewise, in Pennsylvania v. Delaware Valley Citizen’s 
Council, 483 U.S. 711 (1987) (“Delaware Valley i r ) ,  the 
Court stated that “the fee contract between the client and his 
attorney should be taken into account when determining the 
reasonableness of a fee award . . . . ” Delaware Valley II, supra 
at 723. In its discussion of the nature of § 1988, the Court 
in Delaware Valley II  also noted that, because a losing plaintiff 
is entitled to no fees, his or her attorney will be paid nothing 
unless “the attorney has an agreement with the client that the 
attorney will be paid, win or lose” Id. at 715. Indeed, in 
Delaware Valley II  all nine Justices noted with approval the 
availability of private fee contracts.15

In Blanchard v. Bergeron,____U.S______, 109 S.Ct. 939
(1989) this Court again reaffirmed the viability of private fee 
agreements by holding that a district court cannot limit the 
court awarded attorneys’ fees to an amount provided in a 
contingent fee agreement. Thus, “a contingent fee agreement 
is not a ceiling upon the fees recoverable under § 1988”, 109 
S.Ct. at 946, and a private agreement may be a factor in 
determining the reasonableness of court awarded fees. 109 
S.Ct. at 944. However, Blanchard also makes it clear that a 
prevailing party and his or her attorney can contractually 
agree to a higher fee than the statutory award, and that will 
not alter the losing party’s obligation to pay court-awarded

15 Justice O’Connor concurred in this portion (part II) of Justice 
White’s plurality decision. Id. at 734 (O’Connor, J. concurring). 
In addition. Justice Blaekmun recognized with approval the avail­
ability of privately negotiated contingent fee contracts. Id. at 737 
(Blaekmun, J. dissenting).



19

fees. 109 S.Ct. at 945. Thus, Petitioner’s dramatic appeal 
to “balance the scales” by invalidating all fee agreements is 
no more than empty rhetoric. Blanchard has, in fact, already 
equalized the equation. Defendants in civil rights cases are 
only liable for the amount of the statutory fee award, no more 
no less, regardless of the private contract between client and 
attorney.

Finally, although this Court did not directly address the 
issue of fee agreements in Evans v. Jeff D„ 475 U.S. 717 
(1986), implicit in its determination was an acknowledgement 
of the practice of entering into private fee agreements. 
Reviewing congressional intent, the Court observed, “[Con­
gress] did not prevent the party from waiving this eligibility 
[for attorneys’ fees] any more than it legislated against assign­
ment of this right to an attorney-----” Id. at 730-31. The
Court added that while “Congress expected fee shifting to 
attract competent counsel to represent citizens deprived of 
their civil rights, it neither bestowed fee awards upon attorneys 
nor rendered them non-waivable or non-negotiable". Id. at 
731-32 (emphasis added). As such, if the right to statutory 
fees can be used as “a bargaining chip” to negotiate an 
advantageous settlement agreement, it would be an anoma­
lous result to limit a prevailing attorney to statutory fees. 
Surely, if a contract can be negotiated which allows the 
plaintiff to waive statutory fees, a contract can be negotiated 
which allows use of one of the time-honored means for 
representation of clients with little or no financial resources— 
the contingent fee agreement.

III.

EXPERIENCE UNDER SECTION 1988 COUNSELS 
AGAINST INVALIDATING FEE CONTRACTS

The available evidence counsels against interpreting 
§ 1988 to limit the recovery of fees pursuant to a private



20

contract. Despite judicial and popular perceptions to the 
contrary, § 1988 has not attracted a mass of attorneys to bring 
previously neglected civil rights actions. If the possibility of 
fee awards attracted attorneys to constitutional tort litigation, 
one would expect civil rights filings to increase after the 
effective date of § 1988, October 1, 1976. Yet the most 
comprehensive study of civil rights filings finds that, after 
enactment of § 1988, there was a general nationwide decline 
in general non-prisoner civil rights filings as a percentage of 
all federal civil filings. Eisenberg & Schwab, The Reality o f 
Constitutional Tort Litigation, 72 Cornell L. Rev. 641, 666 
(1987) (Table III) [hereinafter referred to as Reality].'6

Table III from Reality compares the annual increase in 
non-prisoner civil rights filings with the annual increase in 
all federal civil filings from 1975 to 1984. The civil rights 
category that encompasses most § 1983 and other civil rights 
claims is Administrative Office Category number “440”, 
which is labeled “other civil rights”.16 17 Table III reveals that, 
between 1975 and 1984, this category declined as a fraction

16 Nothing in the unrefined, generalized statistical information 
presented by Petitioner supports the total abandonment of the right 
to contract. Petitioner’s raw data is precisely the type of generalized 
information criticized by this Court in its recent decision in Wards
Cove Packing Co. v. Atonio,___U.S_____, 109 S.Ct. 2115 (1989).
Unlike the data in the study relied upon herein, there is no basis 
for eliminating from Petitioner’s material any of a number of 
factors which could explain differences in filing statistics such as 
changes in substantive law, societal attitudes about litigation in 
general, or variations in workforce demographics. Any of these 
factors could well explain the figures cited by Petitioner, and there 
is no reason to extrapolate from that data the conclusion that 
Petitioner’s figures are explained solely by court decisions regarding 
contingent fee contracts.

17 This category excludes employment claims, most of which 
are covered by their own fee statute which has been part of Title 
VII since its enactment in 1964. The data for Table III come from 
Administrative Office of the United States Courts, 1984 Annual 
Report of the Director 145 (Table 25).



21

of the federal civil docket. Civil rights filings either remained 
constant or decreased relative to all civil filings in all but two 
years during the ten-year period and in only one of those two 
years did the relative increase exceed five percentage points. 
If § 1988 generated a spate of civil rights actions in the 
decade after its enactment, they are undetectable through 
observation.

Similar findings apply with respect to prisoner civil rights 
litigation. Reality, 72 Cornell L. Rev. at 666-67 & Table
IV .18 Indeed, in the prisoner area there is evidence that 
§ 1988 has provided insufficient incentives to attract private 
counsel to meritorious prisoner claims. Schwab & Eisenberg, 
Explaining Constitutional Tort Litigation: The Influence o f  
The Attorneys Fees Statute and The Government as Defendant, 
73 Cornell L. Rev. 719, 770-74 (1988).

It is true that the absolute level of civil rights filings 
increased during the reported period. But, given the increase 
in population and general litigation (as measured by the 
increase in other civil filings), the absolute level of civil rights 
filing activity is less persuasive evidence than the relative 
level. If § 1988 were inducing lawyers to file civil rights cases 
in extraordinary numbers, there should have been an increase 
in both the absolute and relative level of civil rights filings.

18 Further evidence that § 1988 had modest effects on filings is 
presented in Schwab & Eisenberg. Explaining Constitutional Tort 
Litigation, 73 Cornell L. Rev. 719 (1988).



22

CONCLUSION

There exists an abundance of well-financed and experi­
enced attorneys available to defend civil rights cases at guar­
anteed hourly rates. The principal congressional objective 
in providing for reasonable attorneys’ fees in civil rights 
litigation, however, was to provide an incentive to competent 
attorneys to accept these difficult but socially important cases 
on behalf of plaintiffs. H.R. Rept. No. 94-1558, 94th Cong. 
2d Sess. 6 (1976); S. Rep. 94-1001, 94th Cong. 2d Sess. 4 
(1976). The purpose was not to provide mere representation 
to plaintiffs, but representation by highly skilled attorneys 
experienced in this complex area of law who are sufficiently 
well-capitalized to be able to persevere through protracted 
litigation. Former Judge Charles B. Renfrew captured this 
purpose well:

Litigation in this area often involves extraordinarily 
complex legal and factual issues that many attorneys 
would simply be unable to handle successfully. The 
important individual and societal issues at stake in such 
litigation may not be adequately protected unless attor­
neys possessing the requisite skills can be induced to take 
Title VII cases. Many able attorneys, no doubt, are 
willing to forego some financial rewards because of the 
psychic satisfaction of advancing a cause in which they 
believe. However, the enforcement of the rights guaran­
teed by Title VII cannot be entrusted to such altruistic 
motives. Lockheed Minority Solidarity Coalition v. Lock­
heed Missiles & Space Co., 406 F. Supp. 828, 830 (N.D. 
Cal. 1976)



23

The lofty congressional purposes of providing competent 
representation for victims of civil rights abuses would be ill 
served by the invalidation of the right to contract sought by 
Petitioner. The interference with the economics of the legal 
marketplace and the contract rights of the parties sought by 
Petitioner should not be indulged by this Court.
Dated: December 15, 1989

Respectfully submitted,
G u y T. Saperstein 
Mari Mayeda 
D ale L. Brodsky 
Saperstein & Seligman 

505 Fourteenth Street,
Suite 1150 
Oakland, CA 94612 
415/763-9800

Atonio H ernandez 
E. R ichard Larson 
Mexican American Legal 

D efense & Educational F und 
634 South Spring St., 11th Fir. 
Los Angeles, CA 90014 
213/629-2512

T heordore Eisenberg 
Cornell Law School 
Myron Taylor Hall 
Ithaca, NY 14853 
607/255-6477

John A. Powell
A merican C ivil Liberties U nion 

Foundation 
132 West 43rd Street 
New York, NY 10036 
213/944-9800

Paul Hoffman 
American Civil Liberties 

U nion Foundation Of 
Southern California 
633 So. Shatto Place 
Los Angeles, CA 90005 
213/487-1720

Attorneys for Amici



1

2

3

4

5

6
7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

PROOF OF SERVICE

Case: Juan Francisco Venegas v. Michael R. Mitchell
U.S. S.Ct. No.: 88-1725

STATE OF CALIFORNIA )
) SS

COUNTY OF ALAMEDA )
I am a citizen of the United States and have an office

in the county aforesaid. I am over the age of eighteen years and 
not a party to the within entitled action. My business address is 
505 Fourteenth Street, Suite 1150, Oakland, CA 94612.

On December 16, 1989 I served the within:
BRIEF OF AMICI CURIAE SAPERSTEIN & SELIGMAN, CALIFORNIA 
TRIAL LAWYERS ASSOCIATION, CALIFORNIA EMPLOYMENT LAWYERS 
ASSOCIATION, PLAINTIFFS EMPLOYMENT LAWYERS ASSOCIATION, 
MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND, 
AMERICAN CIVIL LIBERTIES UNION FOUNDATION, EQUAL RIGHTS 
ADVOCATES, CENTER FOR LAW IN THE PUBLIC INTEREST AND 
PUBLIC ADVOCATES, INC.

by placing a true copy thereof enclosed in a sealed Federal 
Express envelope with postage thereon fully prepaid, in a Federal 
Express Depository at Oakland, California addressed as follows:

Michael Bromberg (3 copies)
Box 2112, Hampton Street 
Sag Harbor, New York 11963
Charles A. Miller (2 copies) 
Covington & Burling 
1201 Pennsylvania Ave., N.W. 
Washington, D.C. 20004
Michael R. Mitchell (1 copy) 
4929 Wilshire Blvd., Suite 910 
Los Angeles, CA 90010

by causing a true copy thereof to be transmitted via telecopier 
to:

I, Wanda Ruth Smith, declare, under penalty of perjury, 
that the foregoing is true and correct.

Executed on Decemb< >rnia.

Richard Mosk
1901 Avenue of the Stars, Suite 850 
Los Angeles, CA 90067

Wanda Ruth Smith