Patterson v. McLean Credit Union Brief Amicus Curiae in Support of Respondent

    SCHEDULED FOR ORAL ARGUMENT SEPTEMBER 11, 1992

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

No. 92-5046

MICHAEL VAN METER, Appellant, 

v.
WILLIAM P. BARR, Appellee.

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

BRIEF IN SUPPORT OF APPELLANT FOR AMICI CURIAE 
THE AMERICAN CIVIL LIBERTIES UNION,

THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
THE ANTI-DEFAMATION LEAGUE,

BLACKS IN GOVERNMENT,
FEDERALLY EMPLOYED WOMEN,

THE MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND,
THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.,

THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, 
THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES,

NATIONAL IMAGE, INC.,
THE NATIONAL TREASURY EMPLOYEES UNION,

THE NATIONAL WOMEN'S LAW CENTER,
PEOPLE FOR THE AMERICAN WAY, AND 
THE WOMEN'S LEGAL DEFENSE FUND

Stephen J. Poliak 
John Townsend Rich 
John E. Veilleux 
Alok Ahuja

Shea & Gardner
1800 Massachusetts Avenue, N.W. 
Washington, D.C. 20036 
(202) 828-2000

June 15, 1992 Attorneys for Amici Curiae



CERTIFICATE DISCLOSING INTERESTS OF AMICI

Pursuant to Rule 6A of the Rules of this Court, the amici 

filing this brief submit this statement of their general natures 
and purposes and their interests in this case.

The American Civil Liberties Union ("ACLU") is a nationwide, 
nonprofit, nonpartisan organization with nearly 300,000 members 
dedicated to preserving and enhancing the fundamental civil 
rights and civil liberties embodied in the Constitution and civil 
rights laws of this country. The ACLU has long been involved in 
the effort to eliminate racial discrimination in our society.
The Women's Rights Project of the ACLU Foundation was established 
to work toward the elimination of gender-based discrimination in 
our society. In pursuit of these goals, the ACLU has partici­
pated in numerous discrimination cases before this and other 
courts. The ACLU and the ACLU Women's Rights Project were active 
in the effort to secure passage of the Civil Rights Act of 1991.

The American Federation of Government Employees is a labor 
organization that represents over 750,000 federal employees. 
Included in such representation are scores of pending EEO dis­
crimination cases and administrative actions arising prior to the 
enactment of the Civil Rights Act of 1991. These cases raise the 
issue of the retroactive application of the Act's amendments to 
pending claims, as does the instant case.

Since 1913, the Anti-Defamation League ("ADL") has pursued 
the objective set out in its Charter "to secure justice and fair 
treatment to all citizens alike." In order to further this 
objective, ADL has fought steadfastly to remove barriers which 
have prevented individuals from fully enjoying the rights pro­
tected by federal civil rights laws. Most recently, ADL sup­
ported the enactment of the Civil Rights Act of 1991 as an effort 
to redress inequities stemming from several Supreme Court 
decisions. ADL believes the retroactive enforcement of the Act 
is consistent with the intent of Congress and is crucial to 
protecting the interests of discrimination victims.

Blacks In Government ("BIG") is a nonprofit, nonpartisan 
organization of government employees at federal, state, and local 
government levels. BIG was incorporated in Washington, D.C., in 
1976 for the purpose of promoting equality of opportunity and 
combatting racism in government employment nationwide. It 
functions as an advocacy organization, an employee support group, 
and a professional association for black government employees1 
concerns with equal opportunity and excellence in public service. 
BIG includes more than 150 chapters covering all states in the 
United States.



11

Federally Employed Women, Inc. ("FEW"), is an international 
non-profit organization representing over one million women 
employed by the federal government. Since its inception in 1968, 
its primary objective has been to eliminate sex discrimination 
and enhance career opportunities for women in government. Recog­
nizing the need for full enforcement of Title VII of the Civil 
Rights Act of 1964, as amended, FEW strongly supported enactment 
of the Civil Rights Act of 1991 and remains committed to ensuring 
that the procedures and remedies under that statute are fully 
available to all victims of employment discrimination in the 
federal sector.

The Mexican American Legal Defense and Educational Fund
("MALDEF") is a national civil rights organization established in 
1967. Its principal objective is to secure, through litigation 
and education, the civil rights of Hispanics living in the United 
States. In this context, MALDEF has filed employment discrimina­
tion suits on behalf of Hispanic federal employees in the past, 
MALDEF has such cases currently pending in the federal courts, 
and MALDEF expects to bring additional cases on behalf of 
Hispanic federal employees in the future. MALDEF thus has a 
substantial interest in the procedures and remedies available to 
victims of employment discrimination in the federal sector.

The NAACP Legal Defense and Educational Fund, Inc. ("LDF"), 
is a non-profit corporation formed to help African Americans 
secure their constitutional and civil rights by means of liti­
gation. For many years, LDF attorneys have represented parties 
in litigation before the Supreme Court of the United States and 
in other federal and state courts in cases involving a variety of 
race discrimination and remedial issues. E.g.. Lvtle v.
Household Mfg., Inc.. 494 U.S. 545 (1990); Patterson v. McLean 
Credit Union. 491 U.S. 164 (1989); Bazemore v. Friday. 478 U.S. 
385 (1986); Franks v. Bowman Transportation Co.. 424 U.S. 747 
(1976); Albemarle Paper Co. v. Moody. 422 U.S. 405 (1975); Griggs 
v. Duke Power Co.. 401 U.S. 424 (1971). LDF believes that its 
experience in this area of litigation and the research that it 
has done will assist the Court in this case.

The National Association for the Advancement of Colored 
People ("NAACP") is an organization dedicated to the furtherance 
of racial equality and social and economic justice in this 
country. To promote these ends, the NAACP and its members engage 
in activity protected by the United States Constitution, in­
cluding petitioning the government for the redress of grievances. 
For more than twenty years, the NAACP and its members throughout 
the United States have assisted workers in utilizing Title VII of 
the Civil Rights Act of 1964 to challenge employment discrimina­
tion against minorities and women. The NAACP has urged the 
Congress to strengthen Title VII and other provisions of the 
Civil Rights Act of 1964, which ultimately resulted in enactment 
of amendments to Title VII in the Civil Rights Act of 1991.



iii -

The National Federation of Federal Employees ("NFFE") repre­
sents nearly 150,000 federal employees nationwide. There are 
approximately 400 NFFE locals from a cross-section of the govern­
ment, e.g.. Department of Veterans' Affairs, General Services 
Administration, Army, Passport Agency, and Bureau of Indian 
Affairs. Members of NFFE bargaining units have cases in progress 
in which claims of unlawful employment discrimination are being 
investigated and adjudicated. Many of these cases were pending 
at the time of the passage of the Civil Rights Act of 1991. The 
decision of this Court regarding the retroactivity of the Act 
will have a major impact on the outcome of the cases of bar­
gaining unit employees represented by NFFE.

National Image, Inc. ("IMAGE"), is a non-profit membership 
organization representing thousands of Hispanic men and women 
employed by federal, state and local governments. Since its 
inception in 1972, IMAGE'S primary objective has been to enhance 
career opportunities for Hispanics in government and eliminate 
Hispanic national origin discrimination. Recognizing the need 
for full enforcement of Title VII of the Civil Rights Act of 
1964, IMAGE strongly supported enactment of the Civil Rights Act 
of 1991. Federal employee members of IMAGE have employment 
discrimination cases pending which will be affected by this 
Court's decision concerning the retroactivity of the Civil Rights 
Act of 1991.

The National Treasury Employees Union ("NTEU") is an 
independent federal sector labor organization that represents 
approximately 150,000 federal employees nationwide. In addition 
to serving as their collective bargaining representative, NTEU 
frequently conducts litigation in federal court on behalf of its 
members, and all federal employees, seeking to vindicate their 
statutory and constitutional rights, including rights arising 
under Title VII of the Civil Rights Act of 1964, as amended.
NTEU has pending in various administrative forums employment 
discrimination claims by numerous federal employees involving 
conduct occurring prior to November 21, 1991. NTEU is also 
currently challenging, as contrary to the Civil Rights Act of
1991, the Equal Employment Opportunity Commission's policy 
guidance concluding that the damages provisions of that Act do 
not apply to pending cases. NTEU v. KEMP. No. 92-0115-BAC (N.D. 
Cal.). In addition, NTEU represents the plaintiff in Pitts v. 
Sullivan. No. 90-2037 (SSH) (D.D.C.), a federal sector employment 
discrimination case originally set for bench trial on May 26,
1992, but which has been stayed pending the outcome of this case.

The National Women's Law Center ("NWLC") is a non-profit 
legal advocacy organization dedicated to the advancement and 
protection of women's rights and the corresponding elimination of 
sex discrimination from all facets of American life. Since 1972, 
NWLC has worked to secure equal opportunity in the workplace 
through the full enforcement of Title VII of the Civil Rights Act



iv

of 1964, as amended. NWLC strongly supported enactment of the 
Civil Rights Act of 1991 and is committed to assuring that the 
amendments made by the Act are applied to litigation pending on 
the date of its enactment.

People For the American Way ("People For") is a nonpartisan, 
education-oriented citizens' organization established to promote 
and protect civil and constitutional rights. Founded in 1980 by 
a group of religious, civic and educational leaders devoted to 
our nation's heritage of tolerance, pluralism and liberty, People 
For now has over 300,000 members nationwide. People For has been 
actively involved in efforts to combat discrimination and promote 
equal rights, including supporting the enactment of the Civil 
Rights Act of 1991, participating in civil rights litigation, and 
conducting programs and studies directed at reducing problems of 
bias, injustice and discrimination.

The Women's Legal Defense Fund ("WLDF") is a national advo­
cacy organization that was founded in 1971 to advance women's 
equal participation in all aspects of society and to promote 
policies which improve the lives of women and their families.
WLDF represents women and men challenging barriers to sexual 
equality, and is particularly concerned with combatting sex 
discrimination in employment through litigation of significant 
cases, public education, and advocating for strong equal employ­
ment opportunity laws and enforcement. WLDF supported enactment 
of the Civil Rights Act of 1991 and is committed to working for 
effective interpretation and strong enforcement of the law.

None of these entities has parent companies, subsidiaries, 

or affiliates that have issued shares or debt securities to the 

public.

Stephen J. Poliak 

Shea & Gardner
1800 Massachusetts Avenue, N.W. 
Washington, D.C. 20036 
(202) 828-2000

June 15, 1992 Attorney for Amici Curiae



V

CERTIFICATE AS TO PARTIES. RULINGS. AND RELATED CASES

A. Parties and Amici

All parties, intervenors and amici appearing below and in 
this Court are listed in the Brief of Appellant.

Amici notified the Court of their intention to file this 
brief, accompanied by written consents of all parties, on 

March 23, 1992.

B. Rulings Under Review

Denial of Van Meter's motion to amend his complaint to 

include a claim for compensatory damages and a request for a jury 

trial pursuant to § 102 of the Civil Rights Act of 1991. 778 F.

Supp. 83 (D.D.C. Dec. 18, 1991) (Gesell, J.), reprinted at J.A. 

229-36.

C. Related Cases

Related cases are described in the Brief for Appellant.

Stephen J. Poliak 

Shea & Gardner
1800 Massachusetts Avenue, N.W. 
Washington, D.C. 20036 
(202) 828-2000

June 15, 1992 Attorney for Amici Curiae



- vi

TABLE OF CONTENTS
Page

CERTIFICATE DISCLOSING INTERESTS OF AMICI ...................  i
CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES . . . .  V

TABLE OF CONTENTS............................................... Vl

TABLE OF A U T H O R I T I E S ........................................ viii

INTRODUCTION AND SUMMARY OF ARGUMENT ........................ 1

ARGUMENT . .  5
I. The Canon of Construction That Waivers of Sovereign 

Immunity Must Be Clearly Expressed Does Not Require 
That the Text of the 1991 Act State Explicitly That
§ 102 Applies to Pending Cases ..........................  5
A. This Court and Seven Other Circuits Applied 

§ 717 of Title VII to Pending Cases Despite 
the Absence of an Unequivocal Waiver of 
Sovereign Immunity as to Such Claims and
those Decisions Warrant the Same Result Here . . .  7

B. Congress' Broad Waiver of Federal Immunity in
Title VII Makes It Inappropriate To Require 
an Unequivocal Expression of Every Circum­
stance to Which It Extends......................

C. Recent Supreme Court Cases Not Involving
Title VII Reaffirm That the Canon Requiring 
Waivers To Be "Unequivocally Expressed" Is 
Satisfied Where Congress Has Waived Immunity 
Over a Certain Subject Matter ...............

II. Application of § 102 of the 1991 Civil Rights Act to
Federal Employee Cases Pending in Court Does Not 
Undermine Title VII's Requirement That Administra­
tive Remedies Be Invoked Before Suit .............

A. The Conditions on the Right To Sue for
Federal and Private Employees Are Essentially 
the S a m e .................................... . 18



- vii

Page
B. Allowing Federal Title VII Plaintiffs To Add 

Compensatory Damage Claims and To Have a Jury
Trial in Court Will Not Undermine the 
Requirement That Federal Employees Invoke 
Administrative Remedies Before Suit ................  24 III.

III. The United States Has Taken Conflicting
Positions on Retroactivity Issues Subsequent
to the Bowen Decision................................28

CONCLUSION..................................................... 3 4

STATUTORY ADDENDUM ...........................................  la

APPENDICES (in separate volume)



viii

TABLE OF AUTHORITIES

CASES: Page
Adams v. Brinegar, 521 F.2d 129 (7th Cir. 1975) . . . . . .  9
*Ardestani v. INS, 112 S. Ct. 515 (1991) . . . . . .  15, 16, 17

Bailes v. United States. 112 S. Ct. 1755 (1992) . . . . . .  30

Bennett v. New Jersey. 470 U.S. 632 (1985).........  30, 31

Berger v. United States. 295U.S. 78 (1935) ...............  29

Bowen v. City of New York. 476 U.S. 467 (1986).............  13
Bowen v. Georgetown Univ. Hoso.. 488 U.S. 204 (1988) . . passim

Bradley v. School Bd. of the City of Richmond,
416 U.S. 696 (1974) ................................ passim

Brown v. General Services Admin.. 507 F.2d 1300 (2d Cir.
1974), aff'd on other grounds. 425 U.S. 820 (1976) . . .  8

Brown v. General Services Admin.. 425 U.S. 820 (1976) . 8, 15

Bunch v. United States. 548 F.2d 336 (9th Cir. 1977) . . 9, 27

Campbell v. United States, 809 F.2d 563 (9th Cir. 1987) . . 11

Chandler v. Roudebush. 425 U.S. 840 (1976) ......... 14, 15, 21

Coles v. Penny. 531 F.2d 609 (D.C. Cir. 1976) .............  13

Eastland v. Tennessee Valley Auth., 553 F.2d 364
(5th Cir.), cert, denied. 434 U.S. 985 (1977) . . . . .  9

Grubbs v. Butz, 514 F.2d 1323 (D.C. Cir. 1 9 7 5 ) .............  21

*Hacklev v. Roudebush. 520 F.2d 108 (D.C. Cir. 1975) . . 13, 14

Huey v. Sullivan. No. 91-2908WM, 1992 U.S. App. LEXIS
11303 (8th cir. May 21, 1992) .......................... 6

*Irwin v. Veterans Admin.. Ill S. Ct. 453 (1990) . . . . passim

Johnson v. Greater Southeast Community Hosp. Corp^,
951 F . 2d 1268 (D.C. Cir. 1 9 9 1 ) ................. 17, 18, 23

Authorities chiefly relied on are marked with an asterisk.



CASES: ix Page

Kaiser Aluminum & Ghent. Corp. v. Bonjorno, 494 U.S.
827 (1990)................................................

*Koaer v. Ball. 497 F.2d 702 (4th Cir. 1974) .............  8 , 9

Lee v. Sullivan, No. C-89-2873, 1992 U.S. Dist.
LEXIS 3612 (N.D. Cal. Mar. 26, 1992) . . . . .  ......... 11

Library of Congress v. Shaw, 478 U.S. 310 (1986) . . . .  14, 15

Mangiaoane v. Adams. 661 F.2d 1388 (D.C. Cir. 1981)

Mahroom V. Hook, 563 F.2d 1369 (9th Cir. 1977),
cert, denied. 436 U.S. 904 (1978) ......................

Mondv v. Sec1v of the Army, 845 F.2d 1051 (D.C. Cir. 1988) . 13

Place v. Weinberger, 497 F.2d 412 (6th Cir. 1974), 
cert, granted, vacated and remanded,
426 U.S. 932 (1976) .....................................9

Place v. Weinberger, 426 U.S. 932 (1976)...................  1°
^President v. Vance, 627 F.2d 353 (D.C. Cir. 1980) . . . 27, 28

Soerling v. United States, 515 F.2d 465 (3d Cir. 1975), 
cert, denied, 426 U.S. 919 (1976) ............... ..

Sullivan v. Hudson. 490 U.S. 877 (1989)   16
*Thompson v. Sawyer. 678 F .2d 257 (D.C. Cir. 1982)   10

United states v. Kubrick, 444 U.S. Ill (1979)   16

United States v. Mott a z, 476 U.S. 834 (1986).................. 5

United States v. Nordic Village , Inc ,̂ 112 S. Ct.
1011 (1992) .........................................  '

United States Dep't of Energy v. Ohio, 112 S. Ct. g
1627 (1992) .............................................

Van Meter v. Barr. 778 F. Supp. 83 (D.D.C. 1991) . . . .  Pass-X-̂

Wagner Seed Co. V. Bush, 946 F.2d 918 (D.C. Cir. 1991),
cert, denied. 112 S. Ct. 1584 (1992) .................

Weahkee v. Powell. 532 F.2d 727 (10th Cir. 1 9 7 6 ) ...........9
*Womack v. Lvnn, 504 F.2d 267 (D.C. Cir. 1974) ......... passim



X

STATUTES: Page
Administrative Procedure Act, as amended, 5 U.S.C.

§ 701 et sea. (1970)..................................... 26

Anti-Drug Abuse Act of 1988, Pub. L. 100-690, § 7342,
102 Stat. 4181, 4469-70, codified as amended at 
8 U.S.C. § 1101(43) (supp. II 1990) ...................  33

Back Pay Act, as amended, 5 U.S.C. § 5596 (1970) ........... 26
Civil Rights Act of 1964, as amended through 1990,

42 U.S.C. § 2000e et sea. (1988)................... passim

§ 706(b), 42 U.S.C. § 2000e-5(b) (1988) ......... . 21, 22

§ 706(f)(1), 42 U.S.C. § 2000e-5(f)(1) (1988)   22

§ 706(g), 42 U.S.C. § 2000e-5(g) (1988) .............  10

§ 717, 42 U.S.C. § 2000e-16 (1988).................. passim

§ 717(b), 42 U.S.C. § 2000e-16(b) (1988) .............  19
§ 717(c), 42 U.S.C. § 2000e-16(c) (1988) . . . .  12, 19, 26

Civil Rights Act of 1991, Pub. L. 102-166, 105 Stat.
1071 (Nov. 21, 1991)   1
§ 1 0 2 ................................................. passim

§ 1 1 4 ..................................................... 19

D.C. Code § 23-1322 (1992) . .................................  33
Equal Access to Justice Act, as amended, 5 U.S.C. § 504

and 28 U.S.C. § 2412 (1988) ............................  16
Equal Employment Opportunity Act of 1972, Pub. L.

92-261, 86 Stat. 1 0 3 ....................................... 7
§ 14, 86 Stat. 112, 42 U.S.C. § 2000e-5 note (1989) . . 7

False Claims Act, as amended, 31 U.S.C.A.
§§ 3729-3733 (Supp. 1992)   33

Financial Institution Reform, Recovery, and Enforcement 
Act of 1989, Pub. L. No. 101-73, § 217, 103 Stat.
183, 254-61 (1989)....................................... 33

12 U.S.C. § 1715z-4a (c) (1988) .......................... 30, 33



STATUTES: xi Page

28 U.S.C. § 1292(b) (1988)   2

28 U.S.C. § 2201 (1970)........................................ 26
42 U.S.C. § 1981 (1970)........................................ 26

REGULATIONS AND EXECUTIVE ORDERS:

29 C.F.R. § 1601.18(e) (1991)   22

29 C.F.R. § 1601.14(a) (1991)   21

29 C.F.R. § 1601.28(a)(1) (1991) ............................  22

29 C.F.R. part 1613 (1991) ...................................19

§ 1613.213(a)   20

§ 1613.214(a)   20

§ 1613.215(a)   20

§ 1613.216.............................................20, 25

§§ 1613.216-.221 ..........................................20

§ 1613.231.................................................20

§ 1613.218.....................  25

§ 1613.281.............................................19, 20

29 C.F.R. part 1614, published at 57 Fed. Reg. 12634
(Apr. 10, 1992)   19, 25

Executive Order 11246, 3 C.F.R. 339 (1964-1965)   26

Executive Order 11478, 3 C.F.R. 803 (1966-1970)   26

BRIEFS:
Brief for the Federal Deposit Insurance Corporation

(argued Feb. 26, 1991), FDIC v. Wright, 942 F.2d
1089 (7th Cir. 1991) (No. 90-2217)............. 29, 32, 33



BRIEFS: - xii Page

Brief for the United States (Aug. 18, 1990), U.S. 
v. Fischbach & Moore. Inc.. Paul B. Murphy.
937 F .2d 1032 (6th Cir. 1991) (Nos. 90-5648
& 90-5649)..................................  30, 31, 32, 33

Brief for the United States (July 1, 1991),
U.S. v. Israel Discount Bank, Ltd..
No. 91-5026 (11th Cir.) ...................  30, 31, 32, 33

Brief for the United States (argued Oct. 3, 1989),
U.S. v. Ottati & Goss, Inc.. 900 F.2d 429
(1st Cir. 1990) (NOS. 89-1063 & 89-1065) . . . .  30, 32, 33

Brief for the United States (June 28, 1990),
U.S. v. Peooertree Apartments et al.,
George Bailes, Jr.. 942 F.2d 1555 (11th Cir.
1991) (No. 89-7850) ........................ 30, 31, 32, 33

Brief for the United States (Mar. 31, 1989),
U.S. V. R.W. Mever, Inc., 889 F.2d 1497
(6th Cir. 1989) (No. 88-2074) ...................... 30, 33

Brief for the United States (Apr. 10, 1990),
Saraisson v. U.S.. 913 F.2d 918 (Fed. Cir. 1990)
(No. 90-5034) ....................................... 30, 31

Memorandum for the United States (Apr. 1, 1992),
Bailes v. United States. 112 S. Ct. 1755
(1992) (No. 91-1075)..................................... 30

Opposition to Defendant's Memorandum Concerning
Retroactivity of the Bail Reform Amendment Act 
(Apr. 22, 1992), U.S. v. Bostick. Crim. No.
F 14117-88 (D.C. Super. C t . ) ................... 30, 31, 33

Respondent Immigration & Naturalization Service's 
Opposition to a Stay of Deportation (May 10,
1991), Avala-Chavez v. INS, 945 F.2d 288
(9th Cir. 1991) (NO. 91-70262)............. 30, 31, 32, 33

Response to Defendants' Motion to Strike Claims for 
Damages and Penalties (response to motion filed 
Oct. 6, 1989), U.S. v. Rent America. Inc., 
et al.. 734 F. Supp. 474 (S.D. Fla. 1990)
(No. 8 9-618 8-PAINE) ........................ 30, 31, 32, 33

United States' Memorandum in Response to Petition for
Rehearing, Place v. Weinberger, 426 U.S. 932 (1976)
(No. 74-116) ....................................... 9



SCHEDULED FOR ORAL ARGUMENT SEPTEMBER 11, 1992

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

No. 92-5046

MICHAEL VAN METER, Appellant, 
v.

WILLIAM P. BARR, Appellee.

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

BRIEF IN SUPPORT OF APPELLANT FOR AMICI CURIAE

INTRODUCTION AND SUMMARY OF ARGUMENT 

On January 7, 1991, appellant Michael Van Meter, a Special 

Agent of the Federal Bureau of Investigation, filed this Title 

VII race discrimination case in the District Court. On Novem­

ber 21, 1991, the day the Civil Rights Act of 1991 ("1991 Act"), 

Pub. L. 102-166, 105 Stat. 1071, was signed and became effective, 

appellant moved to amend his complaint to include a claim for 

compensatory damages and a request for a jury trial pursuant to 

§ 102 of the 1991 Act . -

11 Section 102 entitles both federal and private employee vic­
tims of intentional discrimination to new remedies of compensa­
tory damages (limited in amount) and a jury trial. The pertinent 
provisions of § 102, the full text of which is set forth in an 
appendix to Appellant's brief, are set forth in a Statutory 
Addendum to this brief.



2

On December 18, 1991, the Court denied appellant's motion to 

amend his complaint. Judge Gesell ruled that the 1991 Act and 

its legislative history did not provide a clear enough expression 

of Congress' intent to permit him to hold that Congress had 

waived the sovereign immunity of the United States with respect 

to claims of federal employees for compensatory damages and a 

jury trial in employment discrimination cases that were pending 

in district court at the time the 1991 Act was passed. 778 F. 

Supp. 83, 86 (D.D.C. 1991), reprinted at J.A. 229, 234-35. That 

ruling is here on interlocutory appeal pursuant to 28 U.S.C.

§ 1292(b).
Amici support appellant's arguments that under standard 

rules of statutory construction, the plain language of the 1991 

Act requires that it be read to apply to pending cases; and that 

the judicial presumption in favor of retroactivity of remedial 

statutes, exemplified by Bradley v. School Bd. of the City of 

Richmond. 416 U.S. 696 (1974), dictates that the provisions 

providing federal employee victims of intentional discrimination 

with compensatory damages and a jury trial be applied to pending 

cases.
Amici present three additional arguments that provide fur­

ther support for the conclusion that the 1991 Act applies to 

pending cases.
First, the canon of construction requiring that waivers of 

sovereign immunity must be "unequivocally expressed" does not 

require the text of the 1991 Act to state explicitly that § 102



3

applies to cases pending on the date of its enactment. The 1972 

amendments to the Civil Rights Act of 1964, which gave federal 

employees the right to sue to enforce their rights to equal em­

ployment opportunity, were applied retroactively by this Circuit 

and seven others despite the absence of clear statutory language 
so requiring. The new remedies provided in § 102 of the 1991 Act

merely expand the remedies available to federal employees under
s

Title VII, and their application to pending cases presents no 

sovereign immunity concerns not presented by the broader change 

in 1972 which created the cause of action.

The decision of this and other circuits to apply the 1972 

amendments retroactively is consistent with the decisions of the 

Supreme Court and this Circuit in determining the scope of Title 

VII's waiver of sovereign immunity in other contexts. In Irwin 

v. Veterans Admin.. Ill S. Ct. 453 (1990), the Supreme Court has 

recognized that the canon that waivers of immunity must be 

"unequivocally expressed" is inapplicable in determining whether 

the broad waiver of sovereign immunity contained in Title VII 

applies to a particular set of circumstances.

Moreover, this rule is simply the application to Title VII 

of the more general rule, recently restated by the Supreme Court, 

that a waiver of sovereign immunity "over certain subject matter" 

renders inapplicable the canon requiring unequivocal expressions 

of intent in determining the scope of that "subject matter"

waiver.



4

Second, contrary to the opinion of the District Court, the 

statutory requirement that federal Title VII plaintiffs first 

invoke administrative remedies is essentially the same as the 
requirement for private plaintiffs. In both cases, the statute 

simply requires that claimants notify their employer of their 

claims to give the employer the opportunity to resolve them 

without litigation, and that they wait at least 180 days prior to 

suing. Neither federal nor private employees are required to 

await the conclusion of the administrative process, and both are 

entitled to a trial de novo in federal court. Also, contrary to 

the opinion of the district court, allowing federal Title VII 

plaintiffs in pending cases to add compensatory damage claims and 

to have a jury trial will not undermine the statutory requirement 

for invocation of the administrative process or impermissibly 

deprive the United States of its opportunity to resolve such 

claims at the administrative level.
Third, since Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 

(1988), the Government has urged on many occasions the continued 

validity of the presumption of retroactivity in Bradley in 

seeking to have various statutes applied to pending cases. This 

compels the conclusion that the Government's advocacy before the 

District Court of the rule in Bowen is the product of pragmatic 

concerns rather than a principled analysis of the case law on 

retroactive application of statutes.



5

ARGUMENT

I. The Canon of Construction That Waivers 
of Sovereign Immunity Must Be Clearly 
Expressed Does Not Require That the Text 
of the 1991 Act State Explicitly That 
$ 102 Applies to Pending Cases.__________

Congress in § 102 unmistakably waived the Government's 
immunity to claims for compensatory damages and jury trial by 

federal employee victims of intentional discrimination. The 

question here is whether that waiver applies to claims that were 

pending in court on the date of the statute's enactment. We 

believe appellant has shown that the plain language of the 1991 

Act unequivocally waives the Government's immunity as to pending 

cases. Appellant's Br. 7-18. However, assuming that some ambi­

guity exists, we show below that the canon requiring unequivocal 

waivers of sovereign immunity is no bar to application of the 

1991 Act to cases pending at the time of its enactment.
The Supreme Court has often stated that waivers of sovereign 

immunity must be "unequivocally expressed." See, e.q., United 

States Dep't of Energy v. Ohio, 112 S. Ct. 1627, 1633 (1992); 

United States v. Nordic Village, Inc.. 112 S. Ct. 1011, 1014 

(1992). The Government relied on this canon of construction 

below in arguing that Van Meter should not be allowed to amend 

his complaint to include claims for compensatory damages and a 

jury trial.-7 Judge Gesell did not cite this principle in

See Defendant's Memorandum in Opposition to Plaintiff's 
Motion To File Second Amended Complaint at 7, 10 n.4 (Nov. 27, 
1991), Van Meter v. Barr, No. 91-0027 (GAG) (D.D.C.), citing 
United States v. Mottaz. 476 U.S. 834, 851 (1986). J.A. 79, 85, 
88 n.4.



6

refusing to apply § 102 to this case, relying instead on the pre­

sumption against retroactivity in Bowen v. Georgetown Univ.

Hoso.. 488 U.S. 204 (1988), and Wagner Seed Co. v. Bush. 946 F.2d 

918, 929 (D.C. Cir. 1991). 778 F. Supp. at 84-85, J.A. 231-32. 

The Eighth Circuit, however, recently cited the "policy requiring 
that waivers of sovereign immunity be strictly construed in favor 

of the United States" to support its conclusion that § 114 of the 
1991 Act, providing interest on awards under Title VII, does not 

apply to federal employee cases pending on its effective date. 

Huev v. Sullivan. No. 91-2908WM, 1992 U.S. App. LEXIS 11303, at 

*9 (8th Cir., May 21, 1992). Accordingly, because we believe 

that the Government's argument below and the Eighth Circuit's 

conclusion in Huev were erroneous, we address the applicability 

of the "clear expression" canon to Van Meter's case.

We show first that this Court and seven other Circuits have 

held the provision authorizing federal employees to sue on their 

discrimination claims, § 717 of Title VII, 42 U.S.C. § 2000e-16, 

applicable to cases pending at the time of its enactment in 1972 

despite the lack of an unequivocal waiver of sovereign immunity 
as to those pending claims; and that those rulings warrant the 

same conclusion here. We then show that this approach is con­

sistent with the rulings of the Supreme Court and other rulings 

of this Circuit determining the scope of Title VII's waiver of 

the sovereign immunity of the United States. Finally, we show 

that these Title VII rulings are applications of a more general 

rule that, as most recently restated by the Supreme Court, the



7

canon requiring waivers of sovereign immunity to be clearly 

expressed does not apply where the issue is whether an express 

waiver over a particular subject matter covers a particular set 

of circumstances.

A. This Court and Seven Other Circuits Have
Applied § 717 of Title VII to Pending Cases 
Despite the Absence of an Unequivocal Waiver 
of Sovereign Immunity as to Such Claims and 
those Decisions Warrant the Same Result Here.

This Court has already determined that the canon requiring 

that waivers of sovereign immunity be unequivocally expressed 
does not bar the application of new remedies in federal employee 

discrimination cases already pending. Womack v. Lynn. 504 F.2d 

267 (D.C. Cir. 1974), held that the 1972 amendments to the Civil 

Rights Act of 1964, which gave federal employees the opportunity 

to sue in federal court by adding § 717 to Title VII, applied to 

cases that had completed the administrative process and were 

pending in the district court at the time those amendments became 

effective, even though the 1972 Act did not expressly so pro­

vide. -  Id. at 269 & n.6. This Court found that § 717 merely

The Equal Employment Opportunity Act of 1972, which, inter 
alia, added § 717 to Title VII, specifically provided: "The
amendments made by this Act to section 706 of the Civil Rights 
Act of 1964 [right of action by private employees] shall be 
applicable with respect to charges pending with the Commission on 
the date of enactment of this Act and all charges filed there­
after." Pub. L. No. 92-261, § 14, 86 Stat. 112, 42 U.S.C.
§ 2000e-5 note (1988). This provision makes no reference to the 
provision of the 1972 Act that added § 717 to Title VII and thus 
does not expressly make § 717 applicable to pending claims. Nor 
did any other provision of the 1972 Act do so.



8
provided a new remedy for a longstanding right of federal 

employees to be free from discrimination. Id.

In so ruling, the Court adopted the reasoning of Roger v. 

Ball. 497 F.2d 702 (1974), in which the Fourth Circuit explicitly 

rejected sovereign immunity as a ground for applying the 1972 

amendments prospectively only. Womack. 504 F.2d at 269. The 

Court in Roger found no need for an explicit statement that the 

new remedies applied to pending cases in light of Congress' clear 

consent to suits by government employees to redress discrimina­

tion. Roger. 497 F.2d at 708.^
With one exception, every other Circuit to consider the 

applicability of § 717 to pending cases reached the same con­

clusion as Womack and Roger. See Brown v. General Services 

Admin.. 507 F.2d 1300, 1305-06 (2d Cir. 1974) (applying statute 
to claims pending before administrative agency at time of § 717's 

enactment), aff'd on other grounds. 425 U.S. 820 (1976)-;;

Sperling v. United States. 515 F.2d 465, 473-74 (3d Cir. 1975) 

(same; "Whatever little may be said in support of a rule of 
strict construction of waivers of sovereign immunity in new 

fields, nothing can be said in favor of strict construction of a

11 Unlike Womack (and this case), in which the administrative 
process had been completed, in Roger the employee was still in 
the administrative process at the time the 1972 amendments became 
effective. Roger. 497 F.2d at 704.
- 1 The Supreme Court in Brown explicitly took note of the Second 
Circuit's holding that the 1972 amendments applied retroactively, 
observing that "[t]he parties have apparently acquiesced in this 
holding by the Court of Appeals, and we have no occasion to 
disturb it." 425 U.S. at 824-25 & n.4.



9

waiver in a field where it has long existed."); Eastland v. 

Tennessee Valiev Auth.. 553 F.2d 364, 367 (5th Cir. 1977) (same 

as Brown); Adams v. Brinegar, 521 F.2d 129 (7th Cir. 1975)

(same); Mahroom v. Hook. 563 F.2d 1369, 1373 (9th Cir. 1977) 

(same); Weahkee v. Powell. 532 F.2d 727, 729 (10th Cir. 1976) 

(1972 amendment "applies to charges pending and unresolved on its 

effective date")

The one exception was the Sixth Circuit, which relied on a 

general presumption against applying statutes retroactively, as 
well as sovereign immunity concerns, in limiting the application 

of § 717 to cases filed after its enactment. Place v.

Weinberger. 497 F.2d 412 (6th Cir. 1974). However, in response 

to a petition for rehearing of the Supreme Court's denial of 

certiorari in that case, the Solicitor General confessed error, 

and stated that he "had now concluded that section 717 applied to 

all cases pending administratively on the act's effective date, 

and represented to the court that the Government would refrain 

from asserting any contrary views in all pending and future 

cases."-/ The Court then granted the petition for certiorari,

- Other Circuits have relied on Womack, Roger and similar cases 
in applying retroactively other statutory provisions which waive 
the sovereign immunity of the United States for employment 
discrimination claims. See, e.g.. Bunch v. United States, 548 
F.2d 336, 340 (9th Cir. 1977) (amendments to the Age 
Discrimination in Employment Act).
- 1 Adams v. Brinegar. 521 F.2d 129, 131 (7th Cir. 1975) 
(summarizing United States' Memorandum in Response to Petition 
for Rehearing, Place v. Weinberger, 426 U.S. 932 (1976) (No. 74- 
116)) .



10

vacated the judgment, and remanded the case to the Sixth Circuit 

for further consideration. 426 U.S. 932 (1976).

More recently, in Thompson v. Sawyer. 678 F.2d 257 (D.C.
Cir. 1982), this Court reaffirmed that sovereign immunity con­

cerns are not an obstacle to the retroactive application of 
§ 717. Thompson held that back pay in a federal employee Title 

VII case may be awarded for the full two-year period provided in 

§ 706(g), even when that period extends back prior to the effec­

tive date of § 717. 678 F.2d at 287-90. In so ruling, the Court 

rejected the Government's sovereign immunity arguments against 

retrospective liability in a footnote saying, "the problem we 

face is not whether Congress waived immunity, but whether the 

waiver was prospective only." Id. at 289 n.33. The Court then 

applied Bradley in resolving the retroactivity issue, rather than 

the canon that waivers of sovereign immunity must be unequivo­

cally expressed. - 1

In sum, this Circuit in Womack and Thompson rejected 

sovereign immunity concerns as a reason for refusing to apply the 

new cause of action created by § 717 of the 1972 Act to pending 

cases. Adding § 717 to Title VII constituted a broad waiver of 

the government's sovereign immunity from suits by federal 

employees for employment discrimination. By contrast, the 

statute at issue here, § 102 of the 1991 Act, merely makes new

The Court in Thompson also concluded that the 1974 amendments 
to the Fair Labor Standards Act, which made that Act and thus the 
Equal Pay Act applicable to federal employees, applied retro­
actively, in spite of the absence of clear language to that 
effect. 678 F.2d at 280-81 & n.23.



11
remedies of compensatory damages and a jury trial available in 

such actions. Because of the lesser impact of the waiver in 
§ 102, this case presents lesser, not greater, concerns for 

sovereign immunity than were present in Womack. Accordingly, 

this Court should reject sovereign immunity as a reason for 

applying § 102 prospectively only.-;

B. Congress' Broad Waiver of Federal Immunity in 
Title VII Makes It Inappropriate To Require 
an Unequivocal Expression of Every Circum- 
stance to Which It Extends.___________________

The soundness of Womack. Thompson, and the other cases 

applying § 717 to pending cases absent express language to that 

effect is confirmed by the decisions of the Supreme Court and 

this Circuit construing the scope of Title VII's waiver of the 

Government's sovereign immunity. These decisions hold that Title 

VII's broad waiver of immunity satisfies the canon requiring 

unequivocal waivers of sovereign immunity with regard to particu­

lar circumstances not mentioned in the waiver. They demonstrate 

that sovereign immunity concerns present no obstacle to the 

retroactive application of the 1991 Act in this case.

See Lee v. Sullivan. No. C-89-2873, 1992 U.S. Dist. LEXIS 
3616, at *44-45 (N.D. Cal. Mar. 26, 1992), (rejecting argument 
that sovereign immunity concerns require that all doubts about 
retroactive application of 1991 Act be resolved in Government's 
favor and applying § 102's compensatory damages and jury trial 
provisions to pending cases; quoting Campbell v. United States, 
809 F .2d 563, 577 (9th Cir. 1987): "'the principle of sovereign
immunity does not require us to resolve all doubtful questions 
concerning the temporal applicability of a statute in the 
government's favor when the literal requirements of the statute 
are otherwise met'").



12

In Irwin v. Veterans Admin.■ 111 S. Ct. 453 (1990), the 

Supreme Court applied § 717's broad waiver of governmental 

immunity beyond its explicit language despite the canon that 

waivers of sovereign immunity must be unequivocally expressed. 

Irwin involved a discrimination suit by a federal government 

employee under § 717 of the 1964 Act. Irwin sought to have the 

rule of equitable tolling applied to excuse her failure to file 

suit within 30 days of her attorney's receipt of notice of the 

agency's final decision as required by § 717(c), 42 U.S.C.

§ 2000e-16(c). That time requirement, the Court noted, was a 
"condition of [the Government's] waiver of sovereign immunity." 

Ill S. Ct. at 456.
Although noting that in general a waiver of sovereign

immunity "cannot be implied but must be unequivocally expressed,"

the Supreme Court in Irwin recognized that that canon had no

further application where Congress had waived its immunity for

federal employment discrimination suits brought within the time

limitations of § 717(c), and the limited question before it was

whether that waiver encompassed the doctrine of equitable

tolling. In holding equitable tolling applicable to federal

employee suits, the Court said:
"Once Congress has made such a waiver, we 
think that making the rule of equitable 
tolling applicable to suits against the 
Government, in the same way that it is 
applicable to private suits, amounts to 
little, if any, broadening of the con­
gressional waiver. Such a principle is 
likely to be a realistic assessment of 
legislative intent as well as a practically



13

useful principle of interpretation."
Ill S. Ct. at 457.

Thus, the Court concluded that the filing deadline "condition" on 

Title VII's waiver of immunity reasonably ought to be read to 

tolerate the equitable tolling rule applicable to suits by 

private employees.^
This Court anticipated the result in Irwin in Mondy v. Seely 

of the Army. 845 F.2d 1051, 1055-57 (D.C. Cir. 1988), and Coles 

v. Penny, 531 F.2d 609, 614-15 (D.C. Cir. 1976). In these cases, 

this Circuit employed the standard tools of statutory construc­

tion, looking to Title VII's structure and purposes, to determine 

the scope of the Government's liability, rather than limiting 

that statute to the "unequivocal expressions" of its text.
Although neither Mondv nor Coles explicitly relies on Title 

VII•s broad waiver of governmental immunity to justify their 
disregard of the "unequivocal expression" canon, that rationale 

was suggested by the Court in Hacklev v. Roudebush, 520 F.2d 108 

(D.C. Cir. 1975), which held that federal employees were entitled 

to a trial de novo of their discrimination claims against the 

Government, even if § 717's waiver of sovereign immunity was con­

strued to be ambiguous on this point:
"A broad interpretation of § 717 is parti­
cularly appropriate in light of the remedial

W  similarly, in a non-Title VII case, Bowen v. City of New 
York. 476 U.S. 467, 479-82 (1986), the Supreme Court held the 60- 
day limit for seeking court review of a disability determination 
by the Social Security Administration to be subject to tradi­
tional equitable tolling principles despite the lack of explicit 
reference to this rule in the statute waiving the Government's 
immunity.



14

character of the 1974 [sic] amendments and 
the constitutional overtones of the rights 
protected through Title VII. And although it 
is sometimes asserted that waivers of sover­
eign immunity are to be strictly construed, 
this principle generally relates to the cir­
cumstances under which a court may entertain 
a case rather than the essential characteris­
tics of the case once it is properly enter­
tained. No one asserts that Title VII cases 
are not judicially cognizable because of 
sovereign immunity; the controversy instead 
rages over the issue of what rights Congress 
intended to accord a federal litigant who is 
properly before the District Court." Id. at 
122 n . 5 3 . — ;

Library of Congress v. Shaw. 478 U.S. 310 (1986), decided 

prior to Irwin, is not to the contrary. In that case, the Court 

held that the broad waiver of sovereign immunity in Title VII did 

not apply to interest on attorneys1 fees, relying on the long­

standing requirement of express consent to awards of interest 

against the Government:
"In the absence of express congressional 
consent to the award of interest separate 
from a general waiver of immunity to suit, 
the United States is immune from an interest 
award." Id. at 314.

While the Court said generally that courts must construe 

waivers of sovereign immunity "strictly in favor of the sover­
eign," 478 U.S. at 318, its opinion was based on the special rule 

about interest. The Court explained that this rule "reflects the

Hacklev was cited with approval in Chandler v. Roudebush, 425 
U.S. 840, 847 n.7, 848 (1976), which held that federal employees 
were entitled to a district court trial de novo of their Title 
VII claims without mentioning the canon that waivers of sovereign 
immunity must be unequivocally expressed, or suggesting that this 
canon was relevant in any way in determining the procedures by 
which employment discrimination claims against the Government 
were to be adjudicated.



15

historical view that interest is an element of damages separate 

from damages on the substantive claim." Id. at 314. It went on 

to say that the purpose of the rule "is to permit the Government 

to 'occupy an apparently favored position,' by protecting it from 
claims for interest that would prevail against private parties." 
Id. at 315-16 (citation omitted). Thus, Shaw applies a particu­

lar rule about waivers of sovereign immunity for interest, rather 

than the general canon that "unequivocal expressions" are always 

required.
Shaw did not raise any question about the Court's prior 

handling of issues respecting § 717 in Brown v. GSA, supra, or 

Chandler v. Roudebush. supra, where the Court said nothing about 
a requirement of "unequivocal expression." Thus, Shaw should not 

be read as requiring that every application of § 717 be "unequi­

vocally expressed" in the statute. Moreover, Irwin, which came 

after Shaw, did not so read it.
As Irwin and this Circuit's decisions have shown, the 

"unequivocal expression" canon does not apply to all questions of 

the scope of the waiver in § 717 of Title VII and should not 

apply to this case.

C. Recent Supreme Court Cases Not Involving
Title VII Reaffirm That the Canon Requiring 
Waivers To Be "Unequivocally Expressed" Is 
Satisfied Where Congress Has Waived Immunity 
Over a Certain Subject Matter._______________

in Ardestani v. INS, 112 S. Ct. 515 (1991), the Supreme 
Court restated the rule regarding construction of the scope of a 

statute waiving sovereign immunity:



16

"[0]nce Congress has waived sovereign 
immunity over certain subject matter, the 
Court should be careful not to 'assume the 
authority to narrow the waiver that Congress 
intended.'" Id. at 520 (guoting United 
States v. Kubrick, 444 U.S. Ill, 118 (1979)
(construing Federal Tort Claims Act)).

Ardestani involved the question whether the Equal Access to 

Justice Act, 5 U.S.C. § 504 and 28 U.S.C. § 2412 (1988) ("EAJA"),

making attorneys' fees available in certain adversary pro­

ceedings, applied to deportation proceedings. Finding depor­
tation proceedings to be "wholly outside the scope of the EAJA," 

112 S. Ct. at 520, the Court concluded that there was no general 

subject matter waiver that could be construed to cover such 

proceedings.
The Court cited with approval Irwin and Sullivan v. Hudson, 

490 U.S. 877 (1989), another EAJA case, in which it applied the 
EAJA's waiver of immunity beyond the statute's explicit terms. 

Ardestani, 112 S. Ct. at 520-21. The question in Sullivan was 

whether the EAJA's allowance of attorneys' fees for "civil 

actions" extended to a non-adversarial benefits proceeding 

required on remand from a reviewing court. Despite the lack of 

explicit statutory language, the Court found that these benefit 

proceedings were "an integral part of the 'civil action' for 

judicial review" under the EAJA, and so eligible for attorneys' 

fees. 490 U.S. at 892. The Court placed significant weight on 

the EAJA's purpose "'to diminish the deterrent effect of seeking 

review of, or defending against, governmental action,' 94 Stat. 

2325." 490 U.S. at 890.



17

Although the Supreme Court in a recent case concerning the 

Bankruptcy Code acknowledged the canon that waivers of sovereign 

immunity must be "unequivocally expressed," the Court cited 

Ardestani with approval. United States v. Nordic Village, Inc., 

112 S. Ct. 1011, 1015 (1992). Thus, the state of the law remains 

that a general waiver of immunity "over certain subject matter" 
means that every application of the waiver need not be unequivo­

cally expressed.

II. Application of § 102 of the 1991 Civil 
Rights Act to Federal Employee Cases 
Pending in Court Does Not Undermine 
Title VII's Requirement That Administra- 
tive Remedies Be Invoked Before Suit.

The District Court found that the "overall structure of the 
federal discrimination statutes" supports the conclusion that 

§ 102 of the 1991 Act should not apply in cases pending on the 

date of enactment. 778 F. Supp. at 85. First, the Court drew a 

sharp contrast between the condition upon the right to sue for 

private (and state) employees and the condition for federal 

employees:
"Unlike private Title VII discrimination 
cases, which may be brought directly into the 
United States District Court irrespective of 
whether or not the plaintiff has first 
pursued administrative remedies with the 
employer, see Johnson v. Greater Southeast 
Community Hospital Corp., [951 F.2d 1268,
1276 (D.C. Cir. 1991)], in Title VII cases 
against the federal government, the United 
States has conditioned the waiver of its 
sovereign immunity on the requirement that 
the plaintiff first raise his or her dis­
crimination grievances with the agency." Id.,



18

Accordingly, the Court said,
11 to allow Title VII plaintiffs simply to tack 
claims for compensatory damages onto com­
plaints already pending in U.S. District 
Courts would, as a practical matter, deprive 
the United States of its opportunity to 
resolve claims for monetary damages at the 
administrative level, and would, as a legal 
matter, impermissibly broaden the juris­
diction of the federal courts to include 
claims that, contrary to the limited scope of 
the federal government's waiver of sovereign 
immunity in this area, had not followed the 
administrative track still required by Title 
VII as a prerequisite to judicial action in 
federal employment cases." Id.

As we demonstrate below, the Court's sharp distinction 

between the conditions applicable to private and federal 

employees is illusory. Furthermore, allowing Title VII plain­

tiffs to add compensatory damages claims to complaints already 

pending in court would not deprive the United States of the 

opportunity to settle cases without a trial nor render the 
administrative process meaningless. In short, the impact on the 

administrative process does not justify the Court's refusal to 

apply § 102 of the 1991 Act to pending federal claims.

A. The Conditions on the Right To Sue for
Federal and Private Employees Are Essentially 
the Same. ______ __________ ____ _______________

Title VII places similar conditions on federal and private 

employees' rights to sue. The statute simply requires that both 

notify their employer of their claims to give the employer the 

opportunity to resolve the matter without litigation, and that 

they wait at least 180 days before suing. Neither federal nor 

private sector employees are required to await completion of any



19

employer or agency processes prior to filing suit, and both 

federal and private employees are entitled to a trial de novo in 

federal court.
Specifically, § 717 of Title VII does not itself prescribe 

any particular administrative procedures for discrimination 

claims against federal agencies. Section 717(b), 42 U.S.C.

§ 2000e-16(b), authorizes the EEOC to enforce Title VII "through 

appropriate remedies" and to issue regulations to carry out its 

responsibilities under the Act. And § 717(c), 42 U.S.C. § 2000e- 

16(c), simply authorizes a civil action by federal employees "as 
provided in section 706" (governing private and state and local 

government employees), within 30 days after receipt of notice of 

final action taken by the employing agency or by the EEOC on 

appeal from a decision of the employing agency,— ' or, if the 

agency or EEOC has not ruled, 180 days after "the filing of the 

initial charge" with the employing agency or the filing of an 

appeal with the EEOC.— '
The EEOC regulations issued pursuant to § 717(b) detail the 

administrative procedures available to a federal employee 

claiming discrimination. 29 C.F.R. part 1613 (1991).— ' Under

12' section 114(1) of the Civil Rights Act of 1991 amended 
§ 717(c) and extended the 30-day filing period to 90 days.

12' See 29 C.F.R. § 1613.281 (1991).
— ' The EEOC has recently amended the regulations governing 
federal sector egual employment opportunity. 29 C.F.R. part 
1614, published at 57 Fed. Reg. 12,634 (Apr. 10, 1992) (effective 
Oct. 1, 1992) (superseding part 1613). The changes the new 
regulations make in the administrative procedures are, for the 
purposes of this case, insignificant.



20

those regulations, a federal employee who believes he or she has 

been discriminated against must consult with an Equal Employment 

Opportunity (EEO) Counselor of the employing agency within 30 
days of the allegedly discriminatory event, its effective date, 

or the date the event was or should have been discovered. 29 

C.F.R. §§ 1613.213(a), -.214(a). If the matter is not informally 
resolved through consultations with the EEO Counselor, the em­

ployee has the right to file a written administrative complaint. 

Id.
The administrative process commenced by this written com­

plaint or "charge" may end quickly —  as it did in this case —  

when the employing agency rejects or cancels the complaint 

without investigation or hearing for any of seven different 

grounds set forth in 29 C.F.R. § 1613.215(a), such as a finding 

that the complaint is untimely. Alternatively, the adminis­

trative process may take a considerable amount of time, while, 

after acceptance of the complaint, the claim is investigated; set 

for hearing and recommended decision by an EEOC Administrative 

Judge; decided by the head of the employing agency (or a desig­

nee) ; and, at the employee's option, appealed to the EEOC. See 

29 C.F.R. §§ 1613.216-.221, .231. In either event, the em­

ployee's right to sue accrues no later than 180 days after the 

filing of the complaint or an appeal to the EEOC. 29 C.F.R.

§ 1613.281. Moreover, the employee has the right to de novo, 
consideration of his or her claims in federal court whatever the



21 -
outcome of the administrative process. Chandler v. Roudebush,

425 U.S. 840, 861 (1976).
Federal employees thus have rights in the administrative 

process that private employees do not have: the right to a full

administrative hearing, followed by a decision by the agency 
head, and the right to appeal an adverse agency decision to the 

EEOC. But they are not obliged to await completion of or to 

"exhaust" that process, and if they do wait for its completion, 

they are not bound by an adverse result . —11 If 180 days goes by 

without a final agency decision, they are free to bring suit in 
federal court; and if a decision comes down sooner (or if they 
decide to wait for a decision), they are free to start over again 

in federal court.
With respect to the administrative processes they are 

required to invoke, federal employees are in essentially the same 

position as private employees. Private employees with claims of 

discrimination are required by § 706 of the 1964 Civil Rights Act 
to file a "charge" with the State or local fair employment prac­

tice agency (where there is one) and with the EEOC, within the 

time periods specified in the statute. Both the Act and the 

regulations require that the EEOC serve the charge upon the 

complainant's employer. § 706(b), 42 U.S.C. § 2000e—5(b); 29 

C.F.R. § 1601.14(a). If the Commission determines after investi-

15/ m  Grubbs v. Butz. 514 F.2d 1323, 1327-28 (D.C. Cir. 1975), 
this Court specifically declined to go beyond the language of the 
statute and add a requirement that federal employee plaintiffs 
complete the administrative process before suing or proceeding 
with an already-instituted suit.



22
gation that there is reasonable cause to believe that the alleged 

discrimination occurred, the Commission is required to attempt to 

resolve the matter informally, through "conference, conciliation, 

and persuasion." § 706(b), 42 U.S.C. § 2000e-5(b). Like the 

federal employee, the private employee is not required to await 
completion of that process. Within 180 days after the charge is 

filed —  the same period that the federal employee must wait —  

the private employee may request and the Commission must promptly 

issue a notice of right to sue. 29 C.F.R. § 1601.28(a)(1).

After receipt of that notice, the private employee may sue in 

federal court. § 706(f)(1), 42 U.S.C. § 2000e~5(f)(1). Simi­

larly, if the EEOC dismisses the charge for any reason, it must 

issue a notice of right to sue. 29 C.F.R. § 1601.18(e).
In short, in each instance, the purpose of the statutory 

requirement is to give the employee and the employer the oppor­

tunity to resolve the matter informally, without the necessity of 

a lawsuit. As this Court said in Manqiapane v. Adams, 661 F.2d 

1388 (D.C. Cir. 1981), a federal employee case, "[t]he only ex­

haustion requirement expressly made by Title VII is the em­

ployee's duty to 'first complain to his employing agency * * *.'" 

Id. at 1390 (citation omitted). While the federal employee files 

a complaint with his or her employing agency and the private 
employee files a charge with the EEOC, in each case the employer 

is to be notified of the claim and given the opportunity to 

resolve the matter informally.



23

The District Court found it significant that private Title 

VII cases may be brought "irrespective of whether or not the 
plaintiff has first pursued administrative remedies with the 

employer." 778 F. Supp. at 85, citing Johnson v. Greater 

Southeast Community Ho s p . Coro.. 951 F.2d 1268 (D.C. Cir. 1991). 

But there is no significance in that difference. Private 

employees are not required by Title VII to go through whatever 

procedures the private employer may require of its employees, but 

they are required to notify the employer of their claims by 

filing a charge with the EEOC. That requirement may lead to 

conciliation efforts by the EEOC. At the very least, it affords 

the employer an opportunity to settle the matter during the 180- 

day waiting period before suit may be filed. Similarly, federal 

employees must notify the employing agency of their claims by 

filing a written complaint, but they are not required to await 

the conclusion of that process. It is true that the applicable 

regulations require the employing federal agency to investigate 

the claims and propose a disposition —  an obligation not placed 

on private employers —— but the essential purpose of the written 

complaint is to afford the employing agency the opportunity to 

settle the matter without substantially burdening the federal 

employee.
Thus, the conditions imposed by Title VII upon private and 

federal employees' right to sue are essentially the same, and the 

District Court erred in placing weight on the insignificant 

differences that exist as a ground for concluding that applica-



24

tion of § 102's remedies in pending cases would somehow compro­

mise the statutory provisions for invocation of the administra­

tive process by federal employees.

B. Allowing Federal Title VII Plaintiffs To Add 
Compensatory Damage Claims and To Have a Jury 
Trial in Court Will Not Undermine the Requirement 
That Federal Employees Invoke Administrative 
Remedies Before Suit.______________________________

Contrary to the District Court's opinion, allowing Title VII 
plaintiffs to add compensatory damages claims in court, with the 

related right to jury trial, will not undermine the requirement 

that federal employees invoke administrative remedies before suit 
and impermissibly "deprive the United States of its opportunity 

to resolve claims for monetary damages at the administrative 

level." 778 F. Supp. at 85.
The purpose of this statutory requirement, as just ex­

plained, is to give the federal employee and the employing agency 

the opportunity to resolve their dispute without a lawsuit. As 

we show below, federal employees with suits in federal court may 
have had any of a number of different experiences in the adminis­

trative process, but in no event will the conciliatory purpose of 

the statutory requirement be undermined by allowing such 
employees to seek compensatory damages remedies in the district 

court that were not available and thus not considered during the 

administrative process.
Some employees, like Van Meter, will have had their adminis­

trative claims dismissed as untimely. In such cases, the 

employing agency will have elected to forego the opportunity to



25

resolve the claim on the merits at the administrative level, and 

there is no good reason to think that an earlier change in the 
nature of recoverable damages would have had any effect on the 

process.
Other employees will have elected to go to court after 180 

days rather than waiting for the agency to complete its investi­

gation, or will have allowed their case to go through administra­

tive hearing and decision and will have sued because they were 

dissatisfied with the result (on liability or on remedy). In 

either situation, the agency will have had an opportunity to 

resolve the claim at the administrative level; it will continue 

to have the opportunity to settle the case after the complaint is 

filed in court. While the employing agency may have made a 

higher offer initially, had the 1991 Act been in effect while the 

case was in the administrative process, nothing prevents the 

employing agency from making that higher offer after the com­

plaint is filed in court . —'1

Thus, in each of the circumstances in which a federal 

employee will have properly invoked the administrative process, 

the agency's interest in having an opportunity to resolve the

When the case has gone through a complete administrative 
hearing, the government (and the employee) will have benefitted 
in other ways as well. The broad discovery required by or 
permitted in the administrative process, 29 C.F.R. § 1613.216, 
.218, may make discovery in the lawsuit unnecessary. At the very 
least, it will have reduced the scope of court-related discovery. 
The EEOC's amended rules for resolution of federal employees' 
discrimination claims, which become effective on October 1, 1992, 
significantly expand the powers of the administrative judge to 
order discovery. 29 C.F.R. § 1614.109(b), 57 Fed. Reg. 12,634, 
12,650 (Apr. 10, 1992).



26
matter without a lawsuit will have been satisfied, even where new 

remedies become available while the lawsuit is pending.

Cases in this Circuit support the notion that § 717's 

requirement for invocation of the administrative process should 

be given a practical reading that does not deprive federal 

employees of new remedies for employment discrimination. In 

Womack v. Lynn, 504 F.2d 267 (D.C. Cir. 1974), this Court per­
mitted a federal employee plaintiff to amend a complaint filed 

prior to 1972 to add a count based on the newly-enacted § 717. 

Since the complaint, as originally filed, had been based on a 

number of dubious causes of action,— 7 the Court's ruling 

implicitly rejected any notion that the Government was improperly 

prejudiced because, at the time plaintiff was pursuing the then- 
existing administrative remedies, the Government's assessment of 

the potential strength of the claim must have been very different 

from its assessment after the 1972 amendments. As the Court 

said, "Section 717(c) is merely a procedural statute that affects 

the remedies available to federal employees suffering from 

employment discrimination." 504 F.2d at 269 (emphasis in 

original). The same is true in this case, and any contention by 

the Government that it was unreasonably prejudiced because of its

— 7 Womack claimed the right to sue under the Fifth Amendment to 
the Constitution; the Administrative Procedure Act, 5 U.S.C.
§ 701 et sea. (1970); the Back Pay Act, 5 U.S.C. § 5596 (1970); 
28 U.S.C. § 2201 (1970); 42 U.S.C. § 1981 (1970); and Executive 
Orders 11246, 3 C.F.R. 339 (1964-1965), and 11478, 3 C.F.R. 803 
(1966-1970). 504 F.2d at 268 n.2.



27

view of the case during the administrative process should be 

similarly rejected.— ''
The Court again took a practical view of the requirement

that federal employees invoke the administrative process prior to

suit in President v. Vance, 627 F.2d 353 (D.C. Cir. 1980).
There, plaintiff's administrative complaint had not specified a

particular promotion as part of the relief he sought. This Court

rejected the Government's argument that this failure barred
plaintiff from pursuing that relief in court, saying: "We think

so strict a requirement would impose far too heavy a burden upon

a lay complainant, and far too little responsibility on the

agency, particularly one that has admitted its own wrongdoing."

627 F .2d at 361. Later in the opinion, the Court elaborated

further on the theme that the requirement of prior resort to

administrative remedies should not stand in the way of full
relief to victims of discrimination by the federal government:

"[The requirement that claimants invoke 
administrative remedies prior to suit] is not 
an end in itself; it is a practical and 
pragmatic doctrine that 'must be tailored to 
fit the peculiarities of the administrative

— / m  Bunch v. United States. 548 F.2d 336 (9th Cir. 1977), the 
Court of Appeals relied on Womack in holding that the 1974 
amendment to the Age Discrimination Employment Act (ADEA), which 
made the ADEA applicable to federal employees, should be applied 
to federal employee cases pending at the time of the amendment. 
In doing so, the Court expressly rejected the Government's 
argument that it should dismiss a claim "for failure to exhaust 
administrative remedies that were nonexistent at the time he 
sought relief from the federal court." 548 F.2d at 340. As the 
court pointed out, "The ADEA amendments, like the 1972 Title VII 
amendments, did not create new substantive rights, but simply 
created new procedures and remedies for the vindication of pre­
existing discrimination claims." Id. at 339.



28

system Congress has created.1 Exhaustion 
under Title VII, like other procedural 
devices, should never be allowed to become so 
formidable a demand that it obscures the 
clear congressional purpose of 'rooting out 
. . . every vestige of employment discrim­
ination within the federal government.'" Id. 
at 363 (footnote omitted).

These cases show that Title VII's requirement that federal 

employees invoke the administrative process before suit should 

not bar them from the remedies provided by § 102. In all of the 

cases pending in district court in which plaintiffs have properly 

invoked the administrative process before suing, their employing 

agencies will have received full notice of the nature of any 

claim of discrimination, and will have had the opportunity to 

resolve the claim before suit was filed. Denying these plain­

tiffs full relief simply because the remedial law at the time 

they pursued those remedies was less favorable to them —  and 

denied them the right to full compensatory relief —  would be 

contrary to long-standing law in this circuit and untrue to 

Congress' limited purpose in delaying the right to sue until a 

claim has been considered by the employing agency.

III. The United States Has Taken Conflicting 
Positions on Retroactivity Issues Sub- 
secruent to the Bowen Decision.______ _

Traditionally, courts view the United States not as "an 

ordinary party to a controversy," but as a "servant of the law" 

whose interest is "not that it shall win a case, but that justice



29
shall be done."— 7 Courts expect the United States to present 

principled arguments on which they can rely for guidance.

With regard to the retroactivity of the Civil Rights Act of 

1991, however, the Government has abandoned positions it has 

advanced in numerous cases in favor of an analysis that appears 

to be born more of pragmatism than of principle. Thus, in this 

case, the Government argued that Bowen v. Georgetown Univ. Hosp., 

488 U.S. 204 (1988), and related cases establish a "heavy pre­

sumption against retroactivity," and that Bradley v. School Bd. 
of the City of Richmond. 416 U.S. 696 (1974), "constitute[s], at 

best, an exception to the general rule favoring only prospective 

application of statutes and amendments."— 7 This position is 

contrary to the position the United States has advanced in 

numerous briefs filed subseguent to the Bowen decision in 

December 1988.— '
In a number of cases subsequent to Bowen, the Government has 

referred to Bradley's presumption of retroactivity as a "well 

settled,"— 7 "fundamental princip[le]. 7 The United States

^  Beraer v. United States. 295 U.S. 78, 88 (1935).
22' Defendant's Memorandum in Opposition to Plaintiff's Motion To 
File Second Amended Complaint at 6, 16 (Nov. 27, 1991), Van Meter 
v. Barr, Civ. No. 91-0027 (GAG) (D.D.C.), J.A. 79, 84, 94.

— 7 Excerpted pages from the Government briefs discussed in this 
section are reproduced in a separate volume of Appendices to this 
brief.
— 7 Brief of the Federal Deposit Insurance Corporation at 2 6 
(argued Feb. 26, 1991), FDIC v. Wright, 942 F.2d 1089 (7th Cir. 
1991) (No. 90-2217).

(footnote 23 on following page)23/



30

has distinguished Bowen, Bennett v. New Jersey, 470 U.S. 632 

(1985), and related cases on which it relied below to support a 

claimed presumption against retroactivity, and has urged courts

— / Brief for the United States at 23 (June 28, 1990), U.S. v. 
Peppertree Apartments et al.. George Bailes, Jr., 942 F.2d 1555 
(11th Cir. 1991) (No. 89-7850) ( "Bailes"). Defendant Bailes 
filed a petition for certiorari on December 6, 1991. On April 1, 
1992, the Solicitor General filed a memorandum stating that the 
United States had "determined not to pursue its claim" for 
damages under the new statute, and that Bailes' petition should 
be granted and the decision of the Court of Appeals vacated as 
moot. Memorandum for the United States, Bailes v. United States, 
No. 91-1075, at 4 (U.S. Apr. 1, 1992). The Court entered the 
order requested by the United States. 112 S. Ct. 1755 (1992). 
However, while the United States renounced its claim for damages 
in Bailes. the Solicitor General did not confess error, and the 
United States remains free to argue for the retroactive 
application of the newly enacted damages provision, 12 U.S.C.
§ 1715z-4a(c) (1988), in future cases.

For other post-Bowen briefs relying on Bradley1s presumption 
of retroactivity, see Brief for the United States at 48 (July 1, 
1991), U.S. v. Israel Discount Bank, Ltd., No. 91-5026 (11th 
Cir.) ("IDB"); Respondent Immigration and Naturalization 
Service's Opposition to a Stay of Deportation at 19, 21 (May 10, 
1991), Avala-Chavez v. INS/ 945 F.2d 288 (9th Cir. 1991) (No. 91- 
70262) (Bradley's presumption of retroactivity represents "'a 
fundamental principle of our jurisprudence'"); Brief for the 
United States at 44 (Aug. 18, 1990), U.S. v. Fischbach & Moore, 
Inc.. Paul B. Murphv. 937 F.2d 1032 (6th Cir. 1991) (Nos. 90-5648 
& 90-5649); Brief for the United States at 14 (Apr. 10, 1990), 
Saraisson v. United States. 913 F.2d 918 (Fed. Cir. 1990) (No. 
90-5034); Brief for the United States at 30-31 (argued Oct. 3, 
1989), U.S. V. Ottati & Goss. Inc.. 900 F.2d 429 (1st Cir. 1990) 
(Nos. 89-1063 & 89-1065); Brief for the United States at 45 (Mar. 
31, 1989), U.S. v. R.W. Mever, Inc., 889 F.2d 1497 (6th Cir.
1989) (No. 88-2074); Response to Defendants' Motion to Strike 
Claims for Damages and Penalties at 23, 24 (response to motion 
filed Oct. 6, 1989), U.S. v. Rent America. Inc., et al.., 734 F. 
Supp. 474 (S.D. Fla. 1990) (No. 89-6188-PAINE) (referring to 
Bradley as "an important Supreme Court decision" whose central 
holding "is now well-established"); Opposition to Defendant's 
Memorandum Concerning Retroactivity of the Bail Reform Amendment 
Act, U.S. v. Bostick. Crim. No. F 14117-88, at 4 (D.C. Super. Ct. 
Apr. 22, 1992).



31

to find that these decisions did not undercut Bradley.— ; In 

one brief, the Government counted the votes of individual jus­

tices in recent Supreme Court retroactivity decisions, concluding 

that "six of the nine justices presently on the Court have 

endorsed the Bradley approach."— 7
In these cases the Government advanced many of the arguments 

now made by appellant Van Meter. Thus, the Government has argued 

that retroactive application of a new measure of damages to con­

duct which was unlawful at the time it occurred would not consti­

tute a "manifest injustice" under Bradley, since "[i]t is well 

established that parties have no 'matured' right to imposition of 

a particular level of damages," "consistent with the general rule 

that 'changes in statute law relating only to procedure or remedy 

are usually held immediately applicable to pending cases.

See Appellant's Br. at 32-37. The United States has labelled

^  IDB brief at 48-49 & nn.78-79 (Bennett applied Bradley; Bowen 
dealt with separate issue of retroactive application of agency 
regulations); Bailes brief at 31 ("Bennett involved a substantive 
change in an existing statute rather than the creation of a new 
remedy. That distinction alone makes Bennett irrelevant" where 
measure of damages for previously unlawful conduct altered); 
Fischbach & Moore brief at 44 (Bennett involved "vested 
contractual rights" and is therefore distinguishable); Bostick 
brief at 3 (Bowen and Kaiser Aluminum & Chem. Corp. v. Bonjorno, 
494 U.S. 827 (1990), prohibit retroactivity only where it would 
endanger party's "vested property rights").

25< i db brief at 49 n.80.
— Bailes brief at 30, 31 (citation omitted); see also IDB brief 
at 45-46, 48; Ayala-Chavez brief at 20; Fischbach & Moore brief 
at 47-50, 55-55; Rent America brief at 26 ("Here, defendants' 
discriminatory practices were unlawful before the effective date 
of the 1988 Act, and they have no 'right' to avoid new penalties 
for the conduct which was unlawful at the time it occurred."); 
cf. Saraisson brief at 17.



32

defendants' contentions that they affirmatively relied on prior 

law in deciding to engage in actionable conduct "far fetched" and 

"transparent fabrication[s]," and has derided defendants' 

inability to produce evidence to support such assertions.— 7
The United States has also argued that a provision speci­

fying that a statute "shall take effect [upon] enactment" 

supports full retroactivity,— 7 and that the intent of Congress 

that certain provisions be applied retroactively could be in­
ferred from Congress' specification that other provisions of the 

same Act would apply prospectively only.— 7 See Appellant's Br. 

at 12-18.
In urging the continuing validity of Bradley, the United 

States was addressing important public concerns. It has advanced 

arguments based on Bradley to challenge frauds against the

— 7 Bailes brief at 34 ("transparent fabrication"); Fischbach & 
Moore brief at 55 n.38 ("far fetched"); see also IDB brief at 41- 
42 (defendants' contention "strains credulity"); Ayala-Chavez 
brief at 21 ("ridiculous"); FDIC v. Wright brief at 30; Rent 
America brief at 27 & n.16.
28/ Qttati & Goss brief at 31-32; see also Rent America brief at 
24 n.13 (effective date provision specifying that statute would 
become effective six months after enactment "says nothing about 
retroactive application").
-  Qttati & Goss brief at 31 ("In those few instances in which 
Congress intended that the provisions of SARA would not become 
immediately effective, Congress expressly so stated in the 
statute."); see also Fischbach & Moore brief at 46 ("Congress' 
intent that the amendments be applied immediately is clear from 
the marked contrast between the False Claims Amendments Act and 
three other civil fraud statutes enacted by Congress during the 
same period which contain specific provisions prohibiting their 
application to any pre-enactment conduct."); IDB brief at 44-45 
(same).



33

Government,— 7 and misuse of funds obtained by real estate 

owners and developers under the National Housing Act;— 7 to 
support the retroactive application of laws authorizing pre-trial 

detention of dangerous criminal defendants— / and the immediate 

deportation of convicted felons;— 7 to recover damages for 

housing discrimination in violation of the Fair Housing Act;— 7 

to defeat defenses asserted by debtors of failed banks;— 7 and 

to obtain prejudgment interest on awards of environmental clean­

up costs incurred by the Government, and to limit the scope of 

judicial review of remedies selected by EPA, under the Superfund 

law.— 7
In sum, the United States has continued after Bowen to give 

its enthusiastic support to Bradley's presumption of retro­

activity where it considered that such arguments would serve its

— 7 IDB brief (relying on amendments to False Claims Act, 31 
U.S.C.A. §§ 3729-3733 (Supp. 1992)); Fischbach & Moore brief 
(same).
217 Bailes brief (invoking double damages provision of 12 U.S.C.
§ 1715z-4a(c) (1988)).
— 7 Bostick brief (arguing for retroactive application of D.C. 
Code § 23-1322).
H 7 Avala-Chavez brief (arguing for retroactivity of § 7342 of 
Anti-Drug Abuse Act of 1988, Pub. L. 100-690, 102 Stat. 4181, 
4469-70 (1988), which repealed automatic stay of deportation 
pending Court of Appeals review of Bureau of Immigration Appeals' 
denial of relief from deportation).

— 7 Rent America brief.
— 7 FDIC v. Wright brief (arguing for retroactive application of 
12 U.S.C. § 1823(e) as amended by FIRREA, Pub. L. No. 101-73, 103 
Stat. 183, 254-6 (1989)).
^ 7 R.W. Mever brief; Ottati & Goss brief.



34
interests. Its heavy reliance on Bowen here must arise from 

pragmatic considerations since the principles it has urged 

elsewhere call for application of Bradley.

CONCLUSION

For the reasons stated herein and in the Brief for 

Appellant, this Court should reverse the order of the District 

Court denying plaintiff's Motion for Leave to File a Second 

Amended Complaint.

Respectfully Submitted,

Stephen J. Poliak 
John Townsend Rich 
John E. Veilleux 
Alok Ahuja

Shea & Gardner
1800 Massachusetts Avenue, N.W. 
Washington, D.C. 20036 
(202) 828-2000

June 15, 1992 Attorneys for Amici Curiae



STATUTORY ADDENDUM



STATUTORY ADDENDUM

Section 102 of the Civil Rights Act of 1991, 
Pub. L. 102-166, 105 Stat. 1071 (Nov. 21. 1991)

SEC. 102. DAMAGES IN CASES OF INTENTIONAL DISCRIMINATION.

The Revised Statutes are amended by inserting after section 
1977 (42 U.S.C. 1981) the following new section:

"SEC. 1977A. DAMAGES IN CASES OF INTENTIONAL DISCRIMINATION 
IN EMPLOYMENT.
"(a) RIGHT OF RECOVERY. —

"(1) CIVIL RIGHTS. —  In an action brought by a 
complaining party under section 706 or 717 of the Civil 
Rights Act of 1964 (42 U.S.C. 2000e-5) against a respondent 
who engaged in unlawful intentional discrimination (not an 
employment practice that is unlawful because of its disparate 
impact) prohibited under section 703, 704, or 717 of the Act 
(42 U.S.C. 2000e-2 or 2000e-3), and provided that the 
complaining party cannot recover under section 1977 of the 
Revised Statutes (42 U.S.C. 1981), the complaining party may 
recover compensatory and punitive damages as allowed in sub­
section (b), in addition to any relief authorized by section 
706(g) of the Civil Rights Act of 1964, from the respondent.

i i *  *  *

"(b) COMPENSATORY AND PUNITIVE DAMAGES. —

"(1) DETERMINATION OF PUNITIVE DAMAGES. —  A complaining 
party may recover punitive damages under this section against 
a respondent (other than a government, government agency or 
political subdivision) if the complaining party demonstrates 
that the respondent engaged in a discriminatory practice or 
discriminatory practices with malice or with reckless 
indifference to the federally protected rights of an 
aggrieved individual.

"(2) EXCLUSIONS FROM COMPENSATORY DAMAGES. —
Compensatory damages awarded under this section shall not 
include back pay, interest on backpay, or any other type of 
relief authorized under section 706(g) of the Civil Rights 
Act of 1964.

"(3) LIMITATIONS. —  The sum of the amount of com­
pensatory damages awarded under this section for future



3a

who may bring an action or proceeding under section 
505(a)(1) of the Rehabilitation Act of 1973 (29 U.S.C. 
794a(a)(1)), or a person who may bring an action or 
proceeding under title I of the Americans with 
Disabilities Act of 1990 (42 U.S.C. 12101 et seq.).
'• (2) DISCRIMINATORY PRACTICE. —  The term 'discriminatory 

practice' means the discrimination described in paragraph 
(1), or the discrimination or the violation described in 
paragraph (2), of subsection (a)."



CERTIFICATE OF SERVICE

I hereby certify that on this 15th day of June, 1992, I 

served two copies of the foregoing Brief in Support of Appellant 
for Amici Curiae and separately bound Appendices by first-class 

mail, postage prepaid, on:

Jonathan Siegel
United States Department of Justice
Civil Division
Federal Programs Branch
Ninth & Pennsylvania, N.W.
Washington, D.C. 20044

and
Joseph M. Sellers
Washington Lawyers' Committee for 

Civil Rights Under Law 
1400 Eye Street, N.W.
Suite 450
Washington, D.C. 20005

Stephen J. Poliak