Copeland v. Martinez Petitioner's Reply to the Memorandum for the Respondent in Oppostion

    IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1979 
No. 79-647

BARBARA N. COPELAND,
Petitioner,

v.
SAMUEL R. MARTINEZ, Director, 
Community Services Administration.

PETITIONER'S REPLY TO THE MEMORANDUM FOR THE RESPONDENT IN OPPOSTION

JACK GREENBERG 
JAMES M. NABRIT, III 
CHARLES STEPHEN RALSTON 
BILL LANN LEE

Suite 2030
10 Columbus Circle
New York, New York 10019

ALEXANDER G. PARK
910 17th Street, N.W. 
Suite 812
Washington, D.C. 20006 

Attorneys for Petitioner



IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1979 
No. 79-647

BARBARA N. COPELAND,
Petitioner,

v.
SAMUEL R. MARTINEZ, Director, 
Community Services Administration.

PETITIONER'S REPLY TO THE 
MEMORANDUM FOR THE RESPONDENT IN OPPOSTION

1. Petitioner first notes that the govern­
ment has responded to virtually none of the 
arguments presented in the petition for writ of 
certiorari. Thus, the Memorandum in Opposition 
does not mention, let alone address, the language 
in Brown v. GSA, 425 U.S. 820, 832 (1976), hold­
ing that § 2000e-5(k) governs the award of 
counsel fees in a federal Title VII action.

2. Similarly, the government quotes that 
part of Hall v. Cole, 412 U.S. 1, 5 (1973), which 
notes the general power of the federal courts
to award fees in bad faith cases, but fails



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to discuss Hall's further holding, noted in the
peitition for certiorari, that

This [the discussion of general principles] 
does not end our inquiry, however, for even 
where "fee-shifting" would be appropriate as 
a matter of equity, Congress has the power to 
circumscribe such relief. In Fleischmann 
Distilling Corp. v. Maier Brewing Co., supra, 
for example, we held that § 35 of the Lanham 
Act ... precluded an award of attorneys' 
fees. ... Since § 35 "meticulously detailed 
the remedies available to a plaintiff who proves that his valid trademark has been 
infringed" Congress must have intended the 
express remedial provisions of § 35 "to mark 
the boundaries to award monetary relief in 
cases arising under the Act."

412 U.S. at 9-10.
3. The government also does not discuss 

Fleischmann Distilling Corp. v. Maier Brewing Co., 
386 U.S. 714 (1967), which, petitioner urges, 
directly governs this case.

4. The Memorandum in Opposition ignores the 
legislative history of the Civil Rights Attorney's 
Fee Act of 1976, which makes it clear that the 
relevant language of 42 U.S.C. § 1988, which is 
identical to that of § 2000e-5(k), is an absolute 
prohibition of an award of fees to the United 
States. In addition to those instances already 
noted in the Petition for a Writ of Certiorari at 
pp. 11-14, petitioner calls the Court's attention



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to the statement of Congressman Drinan in intro-
ducting the bill to the House subcommittee:

[U]nder these bills the Federal government 
could never recover its attorney fees. On 
the other hand, it would be required to pay 
the counsel fees of a private prevailing 
party ...

AWARDING OF ATTORNEYS' FEES, Hearing Before the 
House Judiciary Subcommitte on Courts, Civil 
Liberties, and the Administration of Justice, 
(94th Cong., 1st Sess.) p. 53 (1975) (emphasis 
added)

5. Finally, petitioner wishes to re­
emphasize that just because counsel fees are 
not awardable, it does not follow that there is
nothing to deter plaintiffs from filing meritless 
Title VII suits against the federal government. 
The far greater resources available to the United 
States, the cost of retaining counsel when there 
is little prospect of recovering fees, and the 
power of the court to award the other costs of

1_/ The Department of Justice, in its testimony 
in support of the bill, indicated that it under­
stood thay the United States could not recover 
fees in a case covered by it. See, testimony of 
Rex E. Lee, Assistant Attorney General for the 
Civil Division, Hearings, supra at pp. 176-177.



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litigation to the government are all substantial 
protections against abuses of the judicial system.

CONCLUSION
In sum, petitioner urges that the decision 

below is in direct conflict with the decisions of 
this Court in Brown v. G.S.A., supra, and Fleisch- 
mann Distilling Corp. v. Maier B ng Co., supra, 
and therefore should be reviewed.

Respectfully submitted,

JACK GREENBERG 
JAMES M. NABRIT, III 
CHARLES STEPHEN RALSTON 
BILL LANN LEE

Suite 2030
10 Columbus Circle
New York, New York 10019

ALEXANDER G. PARK
910 17th Street, N.W. 
Suite 812Washington, D.C. 20006

Attorneys for Petitioner