Lee v. Macon County Board of Education Brief for Plaintiffs-Appellees

    IN THE
UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
No. 73-3088

ANTHONY T. LEE, et al., MRS.
JAMES O'NEAL,

Plaintiffs-Appellants,
v.

MACON COUNTY BOARD OF EDUCATION, 
et al., RANDOLPH COUNTY BOARD OF 
EDUCATION,

Defendants-Appellees.

On Appeal From The United States District Court 
For the Middle District Of Alabama 

Eastern Division

BRIEF FOR PLAINTIFFS-APPELLANTS

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
CHARLES E. WILLIAMS, III 

10 Columbus Circle 
New York, New York 10019

DEMETRIUS C. NEWTON
408 North 17th Street 
Birmingham, Alabama 35203

Attorneys for Plaintiffs-Appellants



■J
IN THE

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 73-3088

ANTHONY T. LEE, et al., MRS.
JAMES O'NEAL,

Plaintiffs-Appellants,
v .

MACON COUNTY BOARD OF EDUCATION, 
et al., RANDOLPH COUNTY BOARD OF 
EDUCATION,

Defendants-Appellees.

On Appeal From The United States District Court 
For the Middle District of Alabama 

Eastern Division

CERTIFICATE

- ir The undersigned counsel of record for plaintiffs-appellants, 
Mrs. James O'Neal, et al., certifies that the following listed 
parties have an interest in the outcome of this case. These 
representations are made in order that judges of this Court 
may evaluate possible disqualification or recusal pursuant to 
Local Rule 13(a).

1. Mrs. Inez Knight, Lillie Mae Knight and Rose Ella 
Knight as plaintiffs-appellants,



and

as

f̂̂ LQ i t L be * -<  * £ }  '* Q  jL lk .
2 .  The Randolph County Board of Educatioo)and its members

defendants-appellees.

Attorney for Plaintiffs-Appellants

2



INDEX

Pa^e

Statement of Issue Presented for R e v i e w ...........  111
Statement of the C a s e ...............................  1
Statement of Facts ................................  4
ARGUMENT:

Introduction.....................    12
I. The Procedure by Which the Decision Was 

Made to Permanently Expel Lillie Mae 
Knight and Rose Ella Knight Did Not 
Comply With the Requirements of the 
Due Process Clause of the Fourteenth 
Amendment.....................    14

C o n c l u s i o n .....................    21

1



TABLE OF CASES

Page

Black Students v. Williams, 335 F. Supp. 820 aff'd
470 F .2d 957 (5th Cir. 1972) ....................... 14

Dixon v. Alabama State Board of Education,
294 F.2d 150 (5th Cir. 1961) ....................... 13, 14

Gagnon v. Scarpelli, ___  U.S. ___ , 41 U.S.L.W.
4647 (May 14, 1973) ................................  17

Goldberg v. Kelley, 397 U.S. 2 54 (1970) .............  17
Green v. McElroy, 360 U.S. 474 (1959) ...............  15
Griffin v. School Bd. of Prince Edward County,

377 U.S. 218 (1964) ................................  14
Joint Anti-Fascist Refuge Committee v. McGrath,

341 U.S. 123 (1951) ................................  15
Lee v. Macon County Bd. of Educ., C.A. No. 847-E,

M .D . Ala..... .................... ......... ....... . . 1
Mills v. Board of Education, 348 F. Supp. 866

(D.D.C. 1972) .......................................  14, 15
Morrissey v. Brewer, 408 U.S. 471 (1972) ............ 17
Paine v. Board of Regents of the University 

of Texas, 355 F. Supp. 199 (W.D. Tex. 1972) 
aff’d , 474 F .2d 1397 (5th Cir. 1973) ..............  18

San Antonio Independent School Dist. v. Rodriquez,
___ U.S. ____ , 41 U.S.L.W. 4407 (March 21, 1973) ... 14

Williams v. Dade County School Board, 441 F.2d .....  14
299 (5th Cir. 1971)

li



STATEMENT OF ISSUE PRESENTED FOR REVIEW

Whether the district court erred in refusing to order 

the defendant school officials to return certain black students 

to school and in upholding their permanent expulsion from 

public education?

iii



IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 73-3088

ANTHONY T. LEE, et al., MRS. 
JAMES O'NEAL,

Plaintiffs-Appellants, 
v.

MACON COUNTY BOARD OF EDUCATION, 
et al., RANDOLPH COUNTY BOARD OF 
EDUCATION,

Defendants-Appellees.

On Appeal From The United States District Court 
For the Middle District Of Alabama 

Eastern Division

BRIEF FOR PLAINTIFFS-APPELLANTS

Statement of the Case

This appeal brings to this Court for review the dismissal 

of a Motion for Emergency Relief filed on February 7, 1973, by 

black high school students from Randolph County, Alabama in the 

statewide school desegregation case, Lee v. Macon County Bd. of

Educ., C.A. No. 847-E, M.D. Ala. The motion prayed that three



black students, who were suspended or permanently expelled, 

without being afforded hearings, be reinstated in Randolph County 

High School and that defendant Board of Education be required 

to establish and enforce a program by which the participation 

of black students in extra-curricular activities of the high 

school would be increased to reflect the percentage of blacks 

in the student body (A. 4).

Subsequent to the filing of the Motion for Emergency Relief, 

counsel for plaintiffs and counsel for defendants, with the 

advice and consent of the district court, agreed to have a hearing 

of the issues raised by the motion before defendant Randolph 

County Board of Education (A. 112). Defendant Board of Education, 

after a hearing held on March 8, 1973, confirmed the suspension 

of one of the three black students and the permanent expulsion 

of the other two (A. Ill). In addition, defendant Board of Ed­

ucation. failed to establish a program for increased participation 

by black students in extra-curricular activities.

By a stipulation dated July 9, 1973, the parties agreed 

that the papers previously filed plus the transcript of the 

March 8, 1973 meeting, would be the only evidence submitted to 

the district court and that a final judgment could be entered 

without any further notice to the parties. The stipulation was 

approved by the district court on July 17, 1973 (A. 111-112).

2



On July 20, 1973, the district court, Varner, J., issued 

its order. The court held that the suspended student and the 

two students who had been permanently expelled had not been 

denied due process of the law. In addition, the court found 

that the evidence submitted established that the two students 

permanently expelled had been guilty of conduct which included 

fighting, being indignant, yelling at an instructor, failing 

to cooperate with school officials, being disorderly, cursing 

and striking an instructor. In addition, based on these findings. 

Judge Varner held that although permanent expulsion was a "harsh" 

penalty, under the circumstances it was not unreasonable.

Finally, the court found that there was insufficient evidence 

to prove plaintiffs allegations of racial discrimination in 

extra-curricular activities at Randolph County High School 
(A. 113).

The district court ordered that the Motion for Emergency
0

Relief was dismissed with prejudice and that costs incurred 

were taxed against plaintiffs (A. 118).

The Notice of Appeal, Bond for Costs on Appeal and 

Designation of Record on Appeal were filed in the district court 

on August 14, 1973 (A. 119-122).

As of the date hereof the student suspended has returned 

to school while the two students permanently expelled are still 

not receiving an education. This appeal is limited to the two 

students who have been permanently expelled from Randolph County
3



High School.

Statement of Facts

On February 2, 1973, Mrs. Inez Knight, the mother of Lillie 

Mae Knight, a seventeen-year-old eleventh grader at Randolph 

County High School, and Rose Ella Knight, a fourteen-year-old 

ninth grader at Randolph County High School,was informed that 

her two children wanted her to come to school (A. 72-73).

Upon Mrs. Knight's arrival at the school Mr. Hulond Humphries, 

principal of Randolph County High School, brought her two 

daughters to her and informed Mrs. Knight that she should take 

them home because they refused to cooperate with him (A. 73).

Mr. Humphries did not inform Mrs. Knight or her daughters of 

what specific charges, if any, were being brought against Lillie 

Mae and Rose Ella, or of what procedures would be followed in the 

future to determine whether they would be allowed to return to 

school (A. 60).
Subsequent to sending Lillie Mae and Rose Ella Knight home, 

Mr. Humphries sent two letters dated February 2, 1973, to the 

Randolph County Board of Education requesting that Lillie Mae 

Knight and Rose Ella Knight be permanently expelled from Randolph 

County High School (A. 43-46). However, neither Mrs. Knight nor 

her children were informed of these letters.

4



In the letter referring to Lillie Mae Knight, Mr. Humphries 
alleged the following: (1) That she had been involved in a
fight on January 11, 1973; (2) that he had imposed as punishment
a requirement that she write a six-page report entitled "Ways to 
Solve Problems Without Fighting," which was due on January 16, 1973 
and that he had had a conference with Mrs. Knight at the time the 
punishment was imposed (A. 43); (3) that Lillie Mae Knight did not
turn in the report on the date set and when he discussed this with 
her on January 22, 1973, she became "very indignant." Therefore, 
Mr. Humphries sent her home for three days or until she wrote the 
report (A. 43) and Lillie Mae Knight returned to school on January 
26, 1973 (A. 43); (4) that on February 2, 1973, Lillie Mae Knight
advised her sister that she did not have to obey an order from 
a teacher and when the teacher involved attempted to discuss this 
with Lillie Mae she yelled at him and told him not to touch her 
(A. 42-43). The letter concluded with a statement that because 
Mrs. Knight had failed to help in solving the problem and Lillie 
Mae had refused to cooperate he was asking that she be dismissed 
from school (A. 44).

The letter referring to Rose Ella Knight alleged the following 
(1) That on November 28, 1972, Rose Ella received five licks for 
refusing to allow a male teacher paddle her (A. 45); (2) that on
December 1, 1972, she received five licks for misconduct in the 
school library (A. 45); (3) that on January 11, 1973, she received

5



three licks, was ordered to apologize at a school assembly 
and placed on probation for the remainder of the school year 
for allegedly fighting, cursing and hitting a teacher (A. 45);
(4) that rather than apologizing as ordered, Rose Ella Knight 
protested her innocence and Mr. Humphries, ignoring her protest, 
threatened to send her home unless she apologized (A. 45);
(5) that on January 25, 1973, Rose Ella Knight got into a yelling 
match with another student (A. 45); (6) that on February 1, 1973, 
Rose Ella was brought to the office by a teacher for refusing to 
obey an order and refusing to take punishment. She turned in her 
books but returned to school on February 2, 1973, and at that 
time Mr. Humphries sent her home with her mother (A. 44-45).
The letter concluded with a statement that Mr. Humphries had 
three unsatisfactory conferences with Mrs. Knight and that he 
was asking for the dismissal of Rose Ella because she had been 
uncooperative (A. 46) .

Mrs. Knight, having received no information concerning when 
her two children would be allowed to return to school, filed 
the Motion for Emergency Relief on February 8, 1973. The 
motion alleged denial of due process of law and prayed that 
the court reinstate her two children in Randolph County High 
School (A. 4). Subsequent to the filing of the motion counsel 
for plaintiffs and counsel for defendants, with the advice 
and consent of the district court, agreed to have a hearing 
before defendant Randolph County Board of Education. This 
hearing was held on March 8, 1973 (A. Ill).

6



At the hearing, Mr. R. D. Simpson, Superintendent of 

the Randolph County High School, read into the record the two 

letters that were written by the principal of Randolph County 

High School (A. 42-46). On cross-examination Mr. Simpson admitted 

that other than the letters from the principal he had no personal 

knowledge of any disciplinary problems involving the two girls 

(A. 50). Further, Mr. Simpson stated that once a student is 

permanently expelled from the Randolph County Public School 

System no arrangements are made for the student to receive any 

form of education (A. 49). Therefore, if the Board of Education 

granted the principal's request that Lillie Mae and Rose Ella 

Knight be permanently expelled from school their public education 

would come to an end.

The only evidence presented against Lillie Mae Knight and 

Rose Ella Knight at the hearing were the letters read into the 

record by Mr. Simpson, who admitted he had no knowledge of the 

events described therein, and the testimony of Mr. Huland 

Humphries, the principal of Randolph County High School who 

wrote the letters. Mr. Humphries, however, admitted at the 

beginning of his testimony that he had no personal knowledge 

of the incidents of misconduct (A. 51). He did state that his 

letters were based on investigations he conducted, however, Mr. 

Humphries failed to describe these investigations or offer any 

statements by teachers or other proof to support his conclusions 

as to what in fact occurred (a . 51). Therefore, the only

7



evidence presented against Lillie Mae Knight and Rose Ella 
Knight at the hearing to determine whether the harsh penalty 
of permanent expulsion from public school would be imposed was 
the unsupported hearsay testimony of the principal of Randolph 
County High School.

Mr. Humphries stated that he decided to request the permanent 
expulsion of Lillie Mae Knight and Rose Ella Knight because the 
girls refused to take punishment claiming that they were 
innocent of the charges against them. He further stated that 
he interpreted this refusal to accept punishment as a failure 
to cooperate (A. 55-57).

After the hearsay testimony of Mr. Humphries, Lillie Mae 
Knight, Rose Ella Knight and Mrs. Inez Knight, unlike their 
accusers, testified in their own behalf and subjected themselves 
to cross-examination by defendants' attorney (A. 57-77).

Lillie Mae Knight testified that the fighting incident 
of January 11, 1973, occurred when she was attempting to 
defend herself from an attack by another girl (A. 62); that 
she had prepared the report assigned to her as punishement 
but it was found to be unacceptable (A. 62-63); and that she had 
intended to rewrite it but was dismissed from school before she had 
the opportunity (A. 63). In addition, Lillie Mae testified that on

8



the day she was dismissed from school she was not advising 

her younger sister to disobey the teachers1 orders, but was 

merely informing Rose Ella that their mother was coming to 

school to attempt to solve the problem and Rose Ella should 

wait for her arrival (A. 58-59). Finally, Lillie Mae Knight 

testified that she walked away from the teacher because she only 

had a limited time to get to her next class, not as was alleged, 

to defy the teacher's authority (A. 59-60).

Rose Ella Knight testified about the circumstances 

sourrounding the incidents of conduct alleged in Mr.

Humphries' letter (A. 63-69). She stated that the striking 

of the teacher was accidental and when she apologized the teacher 

stated that he knew she didn't mean it (A. 67-68). In addition, 

Rose Ella testified that she had written an original and four 

modifications of the paper that had been assigned as punishment 

for fighting, but each time Mr. Humphries rejected it, even 

after one of the teachers had found it to be satisfactory (A. 68). 

Generally Rose Ella Knight's testimony was that she did not 

believe that her conduct was of a nature to justify the punishment 

she had received (A. 63-69).
Mrs. Inez Knight testified that it was her opinion that prior 

to the dismissal of her two daughters, Mr. Humphries had been 

harassing them because two - members of their family had been 

charged with murder (A. 71). She stated that she tried to explain 

to the principal that her younger child was having great

9



difficult coping with this situation and asked for some special 
consideration in dealing with her, but Mr. Humphries would not 
listen (A. 71-72). She also indicated that she had told Rose
Ella not to take anymore paddlings because she believed that it

*
was improper to have her fourteen—year-old daughter paddled 
by a male teacher or administrator (A. 72-73) .

The members of defendant Randolph County Board of Education 
did not file an opinion for the record, but they did confirm 
the permanent expulsion of Lillie Mae Knight and Rose Ella 

Knight (A. Ill) .
By a stipulation dated July 9, 1973, the parties agreed 

that absent a request from the court, the papers previously 
filed plus the transcript of the March 8, 1973 hearing would be 
the only evidence submitted to the district court and that a 
final judgment could be entered without any further notice to 
the parties. The stipulation was approved by the district court 
on July 17, 1973 (A. 111-112).

The district court, Varner, J., issued its order on 
July 20, 1973. Even though all of the evidence presented against 
Lille Mae and Rose Ella Knight was hearsay, the girls 
never had an opportunity to confront and cross-examine their 
accusers and no opinion was filed by the Board of Education; 
the court held that they had not been denied due process of law. 
In addition the court found that the hearsay evidence submitted

10



established that Lillie Mae Knight and Rose Ella Knight 
had been guilty of conduct which included fighting, being 
indignant, yelling at an instructor, failing to cooperate 
with school officials, being disorderly, cursing and 
striking an instructor. The court held, based on these 
findings, that although permanent expulsion was a "harsh" 
penalty, it was not unreasonable (A. 113).

The district court ordered that the Motion for Emergency 
Relief was dismissed with prejudice and that costs incurred 
be taxed against plaintiffs.

The Notice of Appeal, Bond for Costs on Appeal and 
Designation of Record on Appeal were filed in the district 
court on August 14, 1973 (A. 118).

As of the date hereof Lillie Mae Knight and Rose Ella 
Knight are still not receiving an education.

11



ARGUMENT

Introduction

The central issue in this appeal is the constitutionality 
of the permanent expulsion of two black students from the 
schools of Randolph County Alabama. As shown by the statement 
of facts, the effect of that expulsion has been to permanently 
deny them the right to all public education.

Appellants do not argue that school officials cannot 
impose proper discipline on students for misconduct or 
that they cannot otherwise control disruptive activity in 
a school so as to be able to carry on its program of education. 
We do urge, however, that it is settled law that before a 
school system can expose students to the severe punishment 
of permanent expulsion from school they must conduct hearings 
which conform to the "rudiments of an adversarial system" 
which requires, as a minimum, that there be some opportunity 
for the student to confront his or her accusers and that a 
decision as momentous as the determination that a student 
will no longer be allowed to receive a free public education
cannot be based solely on hearsay testimony. If this basic

(

12



requirement of due process'is not met the effect is 
that a proceeding which should be a hearing in the nature 
of an adversarial proceeding is transformed into a rubber 
stamp for a predetermined verdict of guilt with the severe 
penalty of permanent expulsion as punishment.

In addition, appellants urge that there are constitutional
limitations on the kind and severity of punishment that
can be meted out by school officials. As this Court held
in Dixon v. Alabama State Board of Education. 294 F.2d
150, 157 (5th Cir. 1961):

"Turning then to the nature of the . . . power 
to expel . . ., it must be conceded . . . that 
that power is not unlimited and cannot be 
arbitrarily exercised. Admittedly, there must 
be some reasonable and constitutional ground 
for expulsion . . . "

Appellants urge that where there has been an absolute denial 
of education the procedures followed at the hearing at which 
that penalty is imposed must meet the highest standards of

13



fairness and the reasons for the imposition of that harsh penalty 
are subject to strict scrutiny to determine whether they are 
reasonable. Students who have been permanently expelled are 
denied the right to an education that is available to all 
other students. This total denial, unlike mere inequities in 
the quality of education, violates equal protection unless it 
serves a compelling state interest that cannot be fulfilled 
by less drastic means. Cf. San Antonio Independent School
Dist. v. Rodriquez, ___ U.S. ___ , 41 U.S.L.W. 4407, 4418
(March 21, 1973); Griffin v. School Bd. of Prince Edward County. 
377 U.S. 218 (1964); Mills v. Board of Education. 348 F. Supp.
866 (D.D.C. 1972).

I.
THE PROCEDURES BY WHICH THE DECISION WAS 
MADE TO PERMANENTLY EXPEL LILLIE MAE KNIGHT 
AND ROSE ELLA KNIGHT DID NOT COMPLY WITH 
THE REQUIREMENTS OF THE DUE PROCESS CLAUSE 
OF THE FOURTEENTH AMENDMENT.

It is well established that when the government takes 
action that injures an individual, it must conform to basic 
requirements of due process. This principle has been applied 
in many instances, including the suspension or expulsion of 
students in public schools. See Dixon v. Alabama State Board 
of Education, 294 F.2d 150 (5th Cir. 1961); Williams v. Dade 
County School Board, 441 F.2d 299 (5th Cir. 1971); Black Students

14



v. Williams, 335 F. Supp. 820 aff'd 470 F.2d 957 (5th Cir. 1972).
See also, e.g., Green v. McElrov. 360 U.S. 474 (1959); Joint 
Anti-Fascist Refuge Committee v. McGrath, 341 U.S. 123 (1951).
While the specific requirements of due process may be flexibly 
applied to school disciplinary procedures, certain basic require­
ments must be satisfied.

Generally, the procedures must be such so as to produce an 
informed decision not only as to whether the students committed 
the offense charged, but also whether the offense justified 
the particular discipline imposed. Appellants contend that the 
procedures adopted by the school board below did not meet these 
requirements.

The main deficiences in the proceedings were that the 
school board relied solely on hearsay testimony and that the 
burden was placed on the students to demonstrate why they should 
be allowed to return to school rather than the burden being on 
the school authorities to justify the imposition of the severe 
penalty of permanent expulsion. C f . Mills v. Board of Education,
348 F. Supp. 966, 881 (D.D.C. 1972).

The principal presented the only testimony against Lillie
i

Mae Knight and Rose Ella Knight and he admitted that he had no 
personal knowledge of the alleged incidents of misconduct. The prin­
cipal stated that his conclusions were based on investigations, but nc 
description of the investigation was given. The teachers who made the

- 15 -



charges were not present, did not testify, nor were they 
available for cross-examination. Thus, although Lillie Mae 
and Rose Ella Knight were represented by counsel, and their 
counsel was allowed to cross-examine the principal, the right 
of confrontation and cross-examination was merely illusory.

The total absence of opportunity to cross-examine the 
students' accusers, and thereby clarify the circumstances 
surrounding the alleged incidents of misconduct, made it 
necessary for the girls to provide explanations for their 
conduct, refute the charges made, and justify their return 
to school. If they did not, the hearsay testimony of the 
principal would have been accepted as true and their permanent 
expulsion would have been automatic. Since the testimony of 
the principal would have been accepted as true absent contra­
diction by the students, the effect was that the burden of 
proof was on Lillie Mae Knight and Rose Ella Knight to establish 
that they should be readmitted to school rather than on the school 
authorities to justify their contention that the two girls should 
be permanently expelled, j

Further, the proceedings were deficient in that they did 
not address themselves to the second issue before the school 
board; that is, assuming the students did commit the acts they 
were accused of was the harsh and irrevocable punishment of 
barring fourteen and seventeen-year-old high school students 
from receiving any future education reasonable and proper.

16



As was stated in the introduction hereto, in making the 
determination of whether the punishment imposed was reasonable, 
the fact that the school board was not imposing a one week, 
one month or one year suspension from school but, instead, 
was sanctioning the permanent denial of a public education 
is of the utmost importance and requires that those who would 
impose such a penalty meet the highest possible standard of 
fairness and satisfy the most rigid procedural requirements 
possible.

We urge that recent decisions of the Supreme Court that 
establish procedural requirements in the area of probation and 
parole revocation are directly applicable and should govern.
In Morrissey v. Brewer, 408 U.S. 471 (1972), the court explicitly 
held that a parole revocation hearing had to address itself 
not only to "any contended relevant facts" but also as to 
"whether the facts as determined warrant revocation." 408 U.S. 
at 488. Moreover, a person faced with revocation must be given 
an opportunity to show why the violation did not warrant revo­
cation. Ibid. Further, the parole board must not only make 
findings of fact, but must specify the "reasons for revoking
parole." I<3. at 489. See also, Gagnon v. Scarpelli, ___  U.S.
___, 41 U.S.L.W. 4647 (May 14, 1973), imposing the same require­
ments in probation revocation proceedings. Morrissey, of course, 
relied heavily on Goldberg v. Kelley, 397 U.S. 254 (1970), which 
applied similar requirements to determine whether to terminate 
welfare benefits.

17



In view of the great importance of education in our society 
it seems self-evident that a student faced with permanent 
expulsion from public school and the consequent termination

• iof education at a level which is considered less than the 
minimum for social and economic success is entitled to no less

1/than criminals facing re-incarceration.
The principal of Randolph High School stated both in his letters 

requesting the permanent expulsion of Lillie Mae Knight and Rose 
Ella Knight (A. 44, 46) and in his testimony at the hearing 
(A. 52) that his decision to request that penalty was not based 
solely on the alleged incidents of misconduct involving the two girls 
but also on the fact that he failed to get cooperation from 
them and their mother in solving what he viewed as a substantial 
disciplinary problem. Therefore, the actions and statements 
of Mrs. Knight and her two daughters that the principal 
interpreted as being examples of lack of cooperation were 
important factors in his decision to see the punishment 
imposed.

Mrs. Knight explained to the members of the Board of 
Education that the conduct that the principal interpreted as a

1/ Just as a person faced with being returned to prison or 
with being deprived of the necessities of life, a student has 
"an interest of extremely great value" that must be protected. 
Paine v. Board of Regents of the University of Texas, 355 F. 
Supp. 199 (W.D. Tex. 1972) aff'd, 474 F.2d 1397 (5th Cir. 1973)

IB



refusal to cooperate was in fact an attempt on her part to 
explain to him the great strain that she and her two children 
were under because of the murder charges against her brothers 
and an attempt to work out a procedure for handling any future 
disciplinary problems that might arise which would take the 
problems her daughters were experiencing at home into consideration 
(A. 70-73). This testimony clearly refutes the principal's 
claim that Mrs. Knight and her children were uncooperative. 
However, the Board of Education failed to discuss the issue of 
whether in view of the facts presented at the hearing the 
school authorities had established that the permanent expulsion 
of Lillie Mae and Rose Ella Knight was a reasonable and proper 
punishment.

Since the Board of Education did not file an opinion
setting forth how the decision supporting permanent expulsion
was arrived at it cannot be determined whether this issue was
ever considered off the record, however, even if it was, the
very failure to explain why a lesser sanction was not chosen
was in and of itself a denial of due process of law. Therefore,
whether the Board failed to consider the issue or just failed
to report the reasons for its decision, its actions amounted to

2/-
a denial of due process of law.

2/ The denial of due process of law makes it unnecessary 
for this Court to reach the ultimate question of whether the 
imposition of the penalty of permanent expulsion was unreasonable 
in this case, however, if such a determination was necessary 
it would be appellants' contention that it is clear on the record 
that it was and the district court's holding to the contrary 
was error.

19



Appellants are aware, of course, that in administrative 
proceedings such as a school disciplinary hearing, due process 
requirements cannot be imposed too rigidly. However, where, 
as in the instant case, the harsh penalty of termination of a 
student's education is involved, the highest possible standards 
of fairness must be adhered to. Therefore, the total reliance 
on hearsay, the shifting of the burden of proof from the school 
authorities to the students and the failure to either consider 
or properly report the consideration of the issue of whether 
the penalty imposed was reasonable, both singularly and in 
conjunction, amounted to a denial of due process of law and 
the District Court's holding to the contrary was erroneous.

20



CONCLUSION

For the foregoing reasons, the decision of the District 
Court to the extent it affects Mr. Inez Knight and her 
daughters Lillie Mae Knight and Rose Ella Knight should be
reversed.

Respectfully submitted,

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
CHARLES E» WILLIAMS, III 

10 Columbus Circle 
New York, New York 10019

DEMETRIUS C. NEWTON 
408 North 17th Street 
Birmingham, Alabama 35203

Attorneys for Plaintiffs- 
Appe Hants

21



CERTIFICATE OF SERVICE

This is to certify that on the 5th day of October,
1973, copies of the Brief for Plaintiffs-Appellants were
served upon counsel for appellees via United States mail,
air mail, postage prepaid, addressed as follows:

JohnS. Casey, Esq.
P. 0. Box 266 
Heflin, Alabama 36264

* * frc*
Attorney for Plaintiffs- 
Appe Hants



No. 85-54

I n  t h e

ftitpratt? (llmirt of %  United States
O ctober T er m , 1985

L ibrary  oe C ongress, et ah,

V.

Petitioners,

T o m m y  S h a w

ON PETITION EOR A WRIT OE CERTIORARI TO THE UNITED STATES 
COURT OE APPEALS FOR THE DISTRICT OP COLUMBIA CIRCUIT

BRIEF IN OPPOSITION TO THE 
PETITION FOR A WRIT OF CERTIORARI

J u liu s  L eV o n ne  C ham bers  
C harles S teph en  R alston  

(Counsel of Record)
99 Hudson Street 
16th. Floor
New York, New York 10013 
(212) 219-1900



QUESTION PRESENTED

Whether 717 of the Equal Employment 

Opportunity Act of 1972, 42 U.S.C. 

§ 2Q00e-16, which incorporates 42 U.S.C. 

§ 2000e-5(k), constitutes a complete 

waiver of sovereign immunity so that the 

relief obtainable, including the amount of 

attorneys fees, against a federal agency 

in a Title VII action is the same as that 
obtainable against all other employers.

i



TABLE OF CONTENTS

TABLE OF AUTHORITIES ..............  iii

STATUTE INVOLVED ..................  1

STATEMENT ...........    2

REASONS FOR DENYING THE WRIT ...... 6

SUMMARY ......................  6
DISCUSSION ...................  8

1 . Background ..............  8

2. Section 717 is a 
Complete Waiver of
Sovereign Immunity .....  10

3. The Decision Below 
Does Not Conflict 
With Prior Decisions
of This Court ........... 14

4. There is No Conflict
Between the Circuits .... 24

CONCLUSION ..............   25

Page

ii



TABLE OP AUTHORITIES
Case Page
Albrecht v. U.S. 329 U.S. 599

( 1947) ..........................  16
Boston Sand Co, v. U.S., 278

U.S. 41 ( 1928) .................. 20

Brown v. General Services Admi­
nistration, 425 U.S. 820 
( 1976) .......................... 6,1 1,12

Chandler v. Roudebush, 425 U.S.
860 ( 1976) ......................  6,9,1 1

Commonwealth of Puerto Rico v.
Heckler, 745 F.2d 709 (D.C.
Cir, 1984) ......................  3

Copeland v. Marshall, 641 F. 2d
880 (D.C. Cir. 1980) ........... 2,7

Eastland v. T.V.A., 553 F.2d
364 (5th Cir. 1977) ............ 9

Franks v. Bowman Transporta­
tion Co., 424 U.S. 747 
( 1976) .......      12

Gautreaux v. Chicago Housing 
Authority, 690 F.2d 601 
(7th Cir. 1982) ................  7

Graves v. Barnes, 700 F.2d
220 (5th Cir. 1983) ............ 7

- iii -



Case Z52®
Gnotta v. Onited States , 415

F .2d 1271 (3th Cir. 1969) ...... 11

Institutionalized Juveniles v.
Secretary of Public Welfare,
758 F.2d 897 (3rd Cir. 1985) ... 7

Johnson v. University College 
of the University of Alabama,
706 F .2d 1205 (11th Cir.
1983) ..........---- ............ 7

Jorstad v. IDS Realty Trust,
643 F.2d 1305 (8th Cir.
1981 ) ...... ................. .....  7

Kyles v. Secretary of Agricul­
ture, 604 F. Supp. 426
(D.D.C. 1985) .................. 4

National Ass'n of Concerned Vets 
v. Sec. of Defense, 675 F .2d 
1319 (D.C. Cir. 1982) .......... 3

Parker v. Lewis, 670 F .2d 249
(D.C. Cir. 1982) ............... 3

Ramos v. Lamm, 713 F .2d 546
(10th Cir. 1983) ............... 7

Shultz v. Palmer, No. 85-50 ....... 5

Standard Oil Co. v. Onited
States, 267 U.S. 76 ( 1 9 2 5 ) . ---- 22,23

Tillson v. United States, 100
U.S. 43 (1879) ................. 19

- iv -



»

Case Page
United States v. Alcea Band 

of Tillamooks, 341 U.S. 48 
(1951) ........................

United States v. Goltra, 312
U.S. 203 (1941) ..............

United States v. Louisiana,
446 U.S. 253 (1980) ..........

United States v. New York 
Rayon Importing Co., 329 
U.S. 654 (1947) ..............

United States v. North
America Trans. & Tradinq
Co., 253 U.S. 330 (1920) ....

United States v. Sherman, 98
U.S. 565 (1879) ..............

United States v. Thayer-West 
Point Hotel Co., 329 U.S.
585 ( 1947) ....... ...........

United States v. Worley, 281
U.S. 339 ( 1930) .... .........

United States ex rel Angerica 
v. Bayard, 127 U.S. 251 
( 1888) ................ ...... .

Williams v. T.V.A., 552 F.2d
691 (6th Cir. 1977) ..........

-  V  -



Page

Statutes;

42 Stat. 1590, ch. 192
(5-15-22) ........---- .......... 20

1 1 8
42 U.S.C. § 2000e-5(k) ...........10,18,24

42 U.S.C. § 2000e-16 .............. 1/12

Legal Fees Equity Act ............. 5

Section 717 of the Equal 
Employment Opportunity
Act of 1972 .................... Passim

Section 177, Judicial Code ........ 17

28 U.S.C. § 2516(a) ............... 17

Other Authorities

"Counsel Fees in Public Interest 
Litigation,” Report by the 
Committee on Legal Assistance,
39 The Record of the Associa­
tion of the Bar of the City of 
New York 300 (1984) ............

Legislative History of the Equal 
Employment Opportunity Act of 
1972, Committee Print, Subcom­
mittee on Labor of the Senate 
Committee on Labor and Public 
Welfare (1972) ................. 13

- vi



Page
Ralston, The Federal Government 

as Employer; ~Pro5Tem's' and 
Issues in Enforcing the Anti-
Discrimination Laws, 10 Ga"..
L. Rev. 717 ( 1976) .... ....... 10

Schlei and Grossman, Employment 
Discrimination Law (2nd Ed.
1983) ...........................  1 1,24

S . Rep. 92-45 (92d Cong. 1st
Sess.) .......................... 1 3

- vii -



No. 85-54
IN THE

SUPREME COURT OF THE UNITED STATES 

October Term, 1985

LIBRARY OF CONGRESS, et al.,

Petitioners,

v.

TOMMY SHAW

On Petition for a Writ of Certiorari 
to the United States Court of Appeals 
for the District of Columbia Circuit

BRIEF IN OPPOSITION TO THE 
PETITION FOR A WRIT OF CERTIORARI

STATUTE INVOLVED

In addition to 42 U.S.C. § 2000e- 
5(k), set out in the petition, this case 
involves Section 717 of the Equal Employ­
ment Opportunity Act of 1972, 42 U.S.C. 
§ 2OOOe-16, which is set out in the
appendix hereto.



2

STATEMENT

In general, respondent adopts the 

statement of the case of the petitioners, 

but would like to emphasize two points. 

F i r s t , a significant part of the delay 

between settlement of the merits and 

disposition of the a t t o r n e y s ’ fee issue 

was occasioned by the district court's 

waiting for the disposition of the appeal 

in Copeland v. M a r s h a l l , 641 F . 2d 880 

(D.C. C i r . 1 980), that was taken by the 

government.

S e c o n d , the issues raised by this 

case should not be viewed in isolation 

from the government's persistent attempts 

to have fees assessed against it in 

employment discrimination cases on a 

different basis than that which applies to 

all other employers. Following the 

rejection of arguments in Copeland that 

fees against the government should be



3

based on a "cost-plus" analysis, and 

therefore should be lower, the government, 

first in cases in the District of Columbia 

and later elsewhere, has adamantly argued 
that fees to a prevailing party should not 

be awarded at rates higher than, first, 

$60 per hour, and later $ 7 5  per hour. 

This, and other practices that have led to 

the prolongation of attorneys* fees 
litigation, have been severely criticized 

by the court of appeals1 and the district

1 Thus, in Parker v„ Lewis, 670 F.2d 249, 
250 n. 2 (D.C. Cir. 19821 , the court found 
it "difficult to accept the bona fides of 
a contention that a $60 per hour fee is 
the appropriate maximum for an experienced 
attorney in the""District of Columbia."

In National Ass'n of Concerned Vets. v. 
Sec, of Defense, 675 F~. 2d 1319, 1337-38 
(D.C. Cir. 1982), Judge Tamm, concurring, 
was sharply critical of the government's 
tactics in opposing attorneys' fees. He 
noted repeated requests for extensions of 
time, the failure to conduct any dis­
covery, and the making of "broadly based, 
ill-aimed attacks" and "nit-picking 
claims." See also 675 F.2d at 1329-30.

In Commonwealth of Puerto Rico v. 
Heckler, 745 F.2 d 709, 7 T T 7 dVc . Cir. 
1984), the circuit court noted this



4

court in the District of Columbia 2 but

Court's admonitions that attorneys' fees 
requests should not result in "a second 
major litigation." It warned against 
"obdurate and intransigent" "non-nego- 
tiable postures on fee awards" that "will 
not be 'worthy of our great government.1"

2 In Kyles v. Secretary of Agriculture, 604 
F. Supp. 426 (D.D.C. 1985) , Judge
Oberdorfer, the district judge in the 
present case, recited a long history of 
delaying tactics and unreasonable posi­
tions taken by the government. One result 
of this history was that the plaintiff, 
although she had already prevailed on the 
merits, had to borrow money to pay her 
lawyer. The judge concluded!

It is a fact of life that in most 
employment discrimination cases the 
client or the lawyer does not have 
the resources to hold out for as long 
as the government can protract a fee 
dispute. There are strong indica­
tions that, knowing this, some civil 
officers of the Executive Branch have 
drawn a line in the dusts any party 
or lawyer who claims more than $75 
per hour will have to fight for it —  
through formal discovery anddilatory 
motions for extensions of time and 
for reconsideration, capped by 
automatic appeals, many of them 
abandoned when briefing time 
approaches. By this form of "jaw­
boning," these officers may well be 
attempting to enact a d_e facto 
ceiling of $75, contrary to ETTe 
statutes enacted by Congress and 
authoritatively interpreted by the 
courts.



5

persist even in the face of Congress' 

refusal to amend the attorneys' fees 

statutes to enact such limits.^ Thus, the 

arguments advanced in this case and Shultz 

v. Palmer, No. 85-50, are part of an 

overall effort to evade the clear intent 
of Congress that the United States be 
liable for fees "the same as a private 
person." * 3

604 F. Supp. at 436.

See also the district court's opinion in 
Palmer v, Shultz, reprinted in the 
petition for writ of certiorari in No. 
85-50 at pp. 42a-43a,

3 The "Legal Fees Equity Act," drafted by 
the Department of Justice, was introduced 
in the 98th Cong., 2d Sess., as H.R. 5757 
and S. 2802. The Act would have placed an 
absolute cap of $75 on fee awards against 
the government and would have prohibited 
all multipliers or upward adjustments. The 
bill failed to be reported out of commit­
tee in either house.



6

REASONS FOR DENYING THE WRIT 

SUMMARY

Respondent urges that the Petition 

should be denied for a number of reasons;

F i r s t , the decision below is fully 

consistent with holdings of this court 

that Section 717 of the Equal Employment 

Opportunity Act of 1972 was intended to 

and did give federal employees the same 

rights in actions brought under Title VII 

of the Civil Rights Act of 1964 as were 

enjoyed by all other employees. Chandler 

v. R o u d e b u s h , 425 U.S. 860 (1976)? Brown 

v. General Services A d m i n istration , 425

U.S. 820 (1976).

S e c o n d , the clear intent of Congress 

was to enact a complete waiver of the 

sovereign immunity of federal agencies in 

cases brought under Title VII to remedy 

discrimination in employment. Therefore,



7

any holding to the contrary would be

completely at odds with the purposes of 
Section 717.

Third, it is clear, and the govern­
ment does not dispute the point, that 

adjustments to attorneys' fee awards to 

compensate for delay in payment are a 

necessary part of calculating a reasonable 

fee in civil rights cases. Indeed, the 

courts of appeals have been, to date, 
unanimous in so holding,4 5 and such a

4 Seer e.g., Copeland v. Marshall, 641 P.2d 
at 892-93; Institutionalized Juveniles v. 
Secretary of Public Welfare, 75~8 F. 2d 897 
(3rd Cir. 1985); Graves~v. Barnes, 700 
F .2d 220, 224 (5th Cir. 1983); Ga'u'treaux 
v. Chicago Housing Authority, 690 F. 2d 
W 1 , 612 (7th Cir. 1985); Jorstad v. IDS 
Realty Trust, 643 F.2d 1305, 1313 (8th 
Cir. 1981); Ramos v. Lamm, 713 F.2d 546,
5 55 ( 10th Cir. 1985) ; Johnson v .
University College of the University of 
Alabama, 706 F.2d 1205, 1210-1 1 ( 1 1th Cir. 
1983). See also "Counsel Fees in Public 
Interest Lxt igation," Report By the 
Committee on Legal Assistance, 39 The 
Record of the Association of the Bar of 
the City of New York 300, 318 (1984).



8

conclusion is consistent with the deci­

sions of this court with regard to 

attorneys’ fees.

F i n a l l y , the decision of the court 

below, stating that the language of 42 

U.S.C. § 2000e-5(k) that the United States 

is to be held liable for costs and 

attorneys' fees "the same as a private 

person" requires that fees against the 

federal government be calculated in the 

same way as they are against any other 

party, is clearly correct. The govern­

ment's reliance on cases involving the 

assessment of interest on ordinary damage 

awards against the government is simply 

misplaced.

DISCUSSIOU 

1. Background

This case must be placed in the 

context of the long, and somewhat dis-



9

tressing, history of the government's
attempts to argue that despite the clearly

expressed intent of Congress, it is to be

treated differently than other employers

in Title VII cases. That history, which
5need not be detailed here at length, 

began with arguments that trials of 
employment claims against the government 

should not be d_e novo proceedings, ® 
continued with arguments that the govern­

ment could not be subjected to class 
7actions, and persists with the govern­

ment’s efforts to argue that the relief 

that may be awarded against it is less 

than the relief that is commonplace when 
an employer that is not a federal agency

5 See, Brief for Respondent in United States
Postal Service Bd. of Governors v. Aikens, 
No. 81-1044, pp. 42-46, for a recounting 
of this history.

6 Chandler v. Roudebush, supra.

See, Eastland v. TVA, 553 F.2d 364 (5th 
Cir. 1977) and Williams v. T.V.A., 552
F .2d 691 (6th Cir. 1977).

7



10

is involved. I n d e e d , early on the

government went so far as to argue, in the

face of the clear language of § 2 G0 0e™

5 (k) , that sovereign immunity barred any
8award of attorneys' fees.

2. Section 717 is a Complete Waiver
oT~Sovir¥rgrr^munIty~~

Thus, this case in fact raises a 

broader question than that presented by 

the government; if certiorari is granted, 

respondent will argue that in all 

respects, whether it be with regard to 

attorneys' fees or backpay on behalf of a 

plaintiff, precisely the same relief can 

be obtained against federal agencies as 

can be obtained against any other em­

ployer. We contend that this was the 

clearly expressed intent of Congress when

8 See Ralston, The Federal Government as 
Employer: Problems and Issues in Enforcing 
Ehe An t i-DiscrimirTatlorTTaws^ 10 Ga. L. 
Rev. 717, 719 n.13 (1976). ■



it enacted Section 717 and, indeed, this 

Court has so held in cases interpreting 

both the language and the intent of 

Section 717. Chandler v. Rou d e b u s h , 

supra; Brown v. GSA, supra.

As this Court noted in Brown v. GSA, 

425 U . S . at 826-827, one of the main 

concerns of Congress when it enacted the 

Equal Employment Opportunity Act in 1972 

was to eliminate any question that 

sovereign immunity barred or limited the 

relief that may be obtained by federal 

employees upon proof of a violation of 

their right to be free of discrimination 

in employment. A leading decision had 

held, for example, that sovereign immunity 

was a bar to an action challenging a 

denial of a promotion on the ground of a 

violation of the Executive orders prohi-
q

biting discrimination.-

Gnotta v. United States, 415 F„2d 1271 
r8th"Cir7 i w n  See s"c$5Tei and Grossman, 
Employment Discrimination Law, 1 18 7-89 (2d

9



12

In 1972, of course, another concern 

of Congress was to broaden the relief 

provisions of Title VII generally so as to 

ensure that employees who had suffered 

discrimination could be made whole in 

every respect. S e e , Franks v. Bowman 

Transportation C o . , 424 U.S. 747, 763-64 

(1976). With regard to the federal 

government, Congress did not to attempt to 

enumerate all the possible types of relief 

that federal employees might obtain. 

Instead, Congress simply incorporated the 

relief provisions that applied to private 

and state and local government employees 

into Section 717's provision regarding 

actions brought by federal employees.^

ed. 1983) , for a discussion of the history 
of § 717.

10 42 U.S.C. § 2000e-16(d) states that, "The 
provisions of section 706(f) through (k), 
as applicable, shall govern civil actions 
brought hereunder." Thus, the provisions 
governing actions against private and 
state and local government employers 
"govern such issues as . . . attorneys' 
fees and the scope of relief." Brown v.



13

In committee reports Congress 

reiterated that its specific purpose was 

to ensure that federal employees obtain 

precisely the same type and scope of 

relief that was available to all other 

e m p l o y e e s .  ̂̂  Thus, Congress' failure to 

specify that adjustments in attorneys' 

fees and backpay awards to compensate for 

delays in payment can be made, cannot be 

read as an intent to bar such relief. To 

the contrary, the clear intent was to 

effect a complete, total, and absolute 

waiver of sovereign immunity with regard 

to the remedies obtainable under Title 

VII.

G S A , 425 U.S. at 832.

11 See, S. Rep. 92-45 (92d Cong. 1st Sess), 
p. 16, reprinted in Legislative History of 
the Equal Employment Opportunity Act of 
1972, a Committee Print of the Subcommit­
tee on Labor of the Senate Committee on 
Labor and Public Welfare (Nov. 1972), p. 
425 (hereinafter "Legis. Hist."). See 
also Legis. Hist. 1851 (Conference 
Committee Report)? Legis. Hist. 85 (House 
Report) .



14

3. The Decision Below Does Mot l̂^lI^^wITh~~PrIoF~,5icI¥Ions~of 
This Court

The various cases cited by the 

government in its petition for writ of 

certiorari are simply inapposite. Neither 

the language of the statutes involved nor 

anything in their legislative history 

indicates an intent to abrogate sovereign 

immunity in its entirety. Rather, the 

intent was to provide limited remedies, 

depending upon the nature of the claim and 

the role of the government in the circum­

stances involved.

For example, petitioners contend, 

petition at 8, that United States v. Alcea 

Band of Tillamooks, 341 U.S. 48, 49 (1951) 

can be read for the proposition that 

interest cannot be recovered “unless the 

awarding of interest was affirmatively and 

separately contemplated by Congress." Yet 

Alcea makes no mention of Congressional



15

"contemplation," nor any suggestion that 

interest must be "affirmatively" or 

"separately" contemplated or even provided 

for in the statute. "Express" statutory 
provision is all that Alcea requires. Id. 

at 49. The Act in question in Alcea, 49 

Stat. 801, ch. 686 (8-25-35), was strictly 

jurisdictional in nature, and was silent 
on the matter of specific relief, let 

alone interest. There was not, needless 

to say, any analogy to private defendants.
Indeed, in all save one of the cases 

cited there is no analogy, as in the Title 

VII context, to any previous statutory 
scheme which awarded interest against 

private defendants. These cases dealt 

solely with statutes that were uniquely 

applicable to actions against the federal 
government. U.S. ex. rel. Angerica v. 

Bayard, 127 U.S. 251 ( 1888),^2 for example,

1 2  Cited at petition, p. 9.



16

concerned a contractual agreement between 

the State Department and Spain? there was 

no statute or Congressional action 

whatsoever. In U .S . v. L o u i s i a n a , 446 

U.S. 253 (1 9 8 0 ) , ^  the disputed provision 

concerned a specific agreement between the 

federal government and a state regarding 

receipts from minerals which had been 

removed and held by the federal government 

until a jurisdictional controversy could 

be resolved. Id. at 256. There could be 

no analogous statutory scheme regarding 

private parties. Similarly, Albrecht v. 

U. S . , 329 O.S. 599 ( 1 9 4 7 ) , ^  concerned 

one-time, individual land-purchase 

agreements entered into by the United 

States. Those contracts did not provide 

for interest.

^3 cited at p. 9. 

14 Cited at p. 9.



17

Petitioners cite, at p p . 9-10, a 

series of c a s e s , U.S. v. New York Rayon 

Importing C o . , 329 U.S. 654 ( 1947), U.S. 

v. Thayer-West Point Hotel Co., 329 U.S. 

585 (1947), U.S. v. Goltra, 312 U.S. 203 

(1941), and U.S. v. North American Trans. 

& Trading C o . , 253 U.S. 330 (1920), which 

denied interest under § 177 of the 

Judicial Code (predecessor of 28 U.S.C. § 

2516(a)), which permitted awards of 

interest against the United States in the 

Claims Court "only under a contract or Act 

of Congress expressly providing for 

payment thereof."

Petitioners are correct that § 177 

merely "codified the traditional rule," 

see, e .g . , New York R a y o n , 329 U.S. at 

658, but reliance on these cases is faulty 

for at least two reasons. First, there is 

no basis for concluding that the require­

ment of expressness is lacking in the 

instant case. The court below in fact



18

held that the waiver in 42 D.S.C. § 200Oe-

5 (k) is express. App. to petition (P.A.),

p p . 17a and 18a. Second, the cited cases

all deal with narrow and specific Acts,

leases, and contracts, in regard to which

only the United States can be a defendant

party. None reflect a complex statutory

sheme, such as that found in Title VII,

§ 717, in which Congress has elected to

establish a comprehensive parallel between

civil actions running against both private
1 5parties and the federal government.

^5 New York Rayon concerns the Act of May 14, 
1937, 50 Stat. 137, 142, ch. 180, and the 
Act of June 25, 19 38, 52 Stat. 1114, 1149, 
ch. 681, appropriation statutes regarding 
refunds on customs duties. 329 U.S. at 
659. Thayer-West Point discusses the Act 
of March 30, 1920, providing for "just 
compensation" for construction of a hotel 
on U.S. Army property, and a private lease 
between the Secretary of War and the 
plaintiff under the provisions of that 
Act. 329 U.S. at 586. Goltra concerns a 
private contract between the plaintiffs 
and the federal government, providing 
simply for "just compensation" in regard 
to a lease of boats. 312 U.S. at 205-06. 
North American Trans. & Trading involved 
an implied contract concerning the taking 
of private land. 253 U.S. at 335.



19

U.S. v. Sherman, 98 U.S. 565 ( 1879), 

also cited by petitioner at p. 10, 

concerns the Acts of March 3, 1863 and 

July 28, 1866, which merely confer 

jurisdiction for suits against revenue 

officers for which the Treasury is liable. 

I d . at 565, 567. Tillson v . U . S ., 100 

U.S. 43 (1879), cited at p. 11, dealt with 

a "special” Act between plaintiff and the 

United States, providing for relief 

"equitably due." I d . at 46. There, the 

Supreme Court explicitly noted that " [t]he 

special statute does not even provide that 

the adjustment shall be made upon prin­

ciples applicable to suits between 

citizens." Id.

In Title VII, on the other hand, 

Congress clearly meant to have § 717 

provide plaintiffs with a full scope of 

remedies against the federal government, 

equivalent to those available against



20

private parties. The context as well as 

the language of the statute makes such a 

conclusion more than "express.”

The structure of § 717 and Title VII 

is simply unlike any in the cases cited by 

petitioners. In the cited cases, there 

was not a clear intention of Congress to 

construct a parallel scheme of remedies 

between private defendants and the federal 

government. The one apparent exception is 

Boston Sand Co. v. U.S. , 278 U.S. 41 

( 1928), cited at p . 10. Boston Sand 

concerned yet another "special" private 

Act, ^ yet this one awarded damages against 

the United States "upon the same principle 

and measure of liability with costs as in 

like cases ... between private 

parties...." 287 U.S. at 46.

16 42 Stat. 1590, ch. 192 (5-15-22)



21

In denying an award of interest 

against the United States, however, 

Justice Holmes found that close scrutiny 

of the context of the statute indicated 

that Congress did not mean to "put the 

United States on the footing of a private 

person in all respects." I d . at 47. 

Holmes was satisfied that a subsequent 

statute denying interest expressed a 

policy which had been assumed for many 

years previously. Congress was accustomed 

to using "a certain phrase with a more 

limited meaning than might be attributed 

to it by common practices," i d . at 48; 

that interest was excluded in many similar 

private acts was "generally ... under­

stood." _id, at 47. An examination of 

Congressional intent in the present case, 

in contrast, yields precisely the opposite 

result, namely, that Congress meant to put 

the federal government on identical 

footing with all other defendants.



22

As the court below noted, P.A. at 

33a-34a, this case is squarely governed by 

Standard Oil Co, v . U.S., 267 U.S. 76 

(1925), where the federal government was 

held liable for interest despite the 

absence of an express waiver. In that 

case, the Court ruled that where the 

United States acts as a private insurer, 

"it had without more consented to be 

treated as a private insurer." P.A. at 
34a. See 267 U.S. at 79.

Petitioners' attempt to limit 
Standard Oil by reliance on U.S. v , 

Worley, 281 U.S. 339 (1930), is unfounded. 

Petitioners note that in Worley the Court 
declined to apply Standard Oil "outside of 

its specific commercial and contractual 

context." Petition at p. 11, n. 9, citing 

Worley, 281 U.S. at 343-44. But such 
logic begs the question, for, as the court 

below noted, it is precisely in their 
"specific commercial and contractual



23

contexts" that Standard Oil and Worley 
diverge fundamentally, in that the D.S. 

was serving as a private insurer only in 

the former. P.A. at 34a, n . 1 16 . In 

Worley, the government was merely disburs­

ing disability benefits to servicemen, a 

function without a parallel in the private 

world. 281 U.S. at 342-43. The United 
States was not acting, as in Standard Oil, 

in the same role as that of private

insurers. Thus, the difference in the

essential context of the government's

position in the two cases directly
parallels the distinctions between the
litany of cases with which petitioners

buttress their claim, and the actual role 

of the United States in the specific 
scheme of Title VII as amended.



24

4. There Is No Conflict of Cir­
cuits

Finally, no other circuit, to

respondent's knowledge, has held that
attorneys' fees awards against the federal

government in Title VII cases are not to

be calculated on precisely the same basis
as are awards against all other employees.

The Title VII decisions cited by the

government at p. 15 of the petition

involve back pay awards. Therefore, they

do not involve the specific language of 
17

§ 2000e-5(k). The decisions interpreting 
the Equal Access to Justice Act cited at 

p. 16 are similarly inapposite.

17 Moreover, as indicated above, if certio­
rari is granted respondent will argue that 
those cases were wrongly decided for the 
reasons outlined here at pp. 10-13. See 
also, Schlei and Grossman, Employment
Discrimination Law 1214 n.175 (2d ed. --------------------



25

CONCLUSION

For the foregoing reasons, the 

petition should be denied.

Respectfully submitted.

JULIUS LEVONNE CHAMBERS 
CHARLES STEPHEN RALSTON 

(Counsel of Record)
99 Hudson Street 
16th Floor
New York, New York 10013 
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STATUTORY APPENDIX



la

42 U.S.C. § 2000e~t6

(a) All personnel actions 

affecting employees or applicants for 
employment (except with regard to aliens 

employed outside the limits of the United 

States) in military departments as defined 

in section 102 of title 5, United States 
Code, in executive agencies as defined in 

section 105 of title 5, United States Code 
(including employees and applicants for 
employment who are paid from nonappro- 

priated funds), in the United States 

Postal Service and the Postal Rate 

Commission, in those units of the Govern­

ment of the District of Columbia having 
positions in the competitive service, and 

in those units of the legislative and 

judicial branches of the Federal Govern­
ment having positions in the competitive 

service, and in the Library of Congress 

shall be made free from any discrimination



2a

based on race, color, religion, sex, or 

national origin.
(b) Except as otherwise 

provided in this subsection, the Civil 
Service Commission shall have authority to 

enforce the provisions of subsection (a) 

through appropriate remedies, including 

reinstatement or hiring of employees with 

or without back pay, as will effectuate 

the policies of this section, and shall 

issue such rules, regulations, orders and 

instructions as it deems necessary and 

appropriate to carry out its responsibili­

ties under this section. The Civil 

Service Commission shall —
(1 ) be responsible for the annual 

review and approval of a 

national and regional equal 
employment opportunity plan 

which each department and agency 
and each appropriate unit 

referred to in subsection (a) of



3a

The
or

this section shall submit . in 

order to maintain an affirmative 

program of equal employment 

opportunity for all such 
employees and applicants for 

employment;

(2) be responsible for the review 
and evaluation of the operation 

of all agency equal employment 
opportunity programs, perio­

dically obtaining and publishing 

(on at least a semi-annual 

basis) progress reports from 

each such department, agency, or 

unit; and

(3) consult with and solicit the 
recommendations of interested 

individuals, groups, and 

organizations relating to equal 
employment opportunity.

head of each such department, agency, 
unit shall comply with such rules,



4a

regulations, orders, and instructions 

which shall include a provision that an 

employee or applicant for employment shall 

be notified of any final action taken on 

any complaint of discrimination filed by 

him thereunder. The plan submitted by 
each department, agency, and unit shall 

include, but not be limited to —
(t) provision for the establishment 

of training and education 
programs designed to provide a 

maximum opportunity for employ­
ees to advance so as to perform 

at their highest potential; and 

(2) a description of the qualifica­

tions in terms of training and 

experience relating to equal 

employment opportunity for the 
principal and operating 

officials of each such depart­

ment, agency or unit responsible 

for carrying out the equal



5a

employment opportunity program 

and of the allocation f* of 

personnel and resources proposed 

by such department, agency, or 
unit to carry out its equal 

employment opportunity program. 

With respect to employment in the Library 

of Congress, authorities granted in this 

subsection to the Civil Service Commission 

shall be exercised by the Librarian of 
Congress.

(c) Within thirty days of 
receipt of notice of final action taken by 

a department, agency, or unit referred to 
in subsection 717(a), or by the Civil 

Service Commission upon an appeal from a 

decision or order of such department, 
agency, or unit on a complaint of discri­

mination based on race, color, religion, 

sex or national origin, brought pursuant 
to subsection (a) of this section, 

Executive Order 11478 or any succeeding



6a

Executive orders, or after one hundred and 
eighty days from the filing of the initial 
charge with the department, agency, or 
unit or with the Civil Service Commission 
on appeal from a decision or order of such 
department, agency, or unit, an employee 
or applicant for employment, if aggrieved 
by the final disposition of his action as 

provided in section 706, in which civil 
action the head of the department, agency, 
or unit, as appropriate, shall be the 
defendant.

(d) The provisions of section 
706(f) through (k), as applicable, shall 
govern civil actions brought hereunder.

(e) Nothing contained in this 
Act shall relieve any Government agency or 
official of its or his primary responsibi­
lity to assure nondiscrimination in 
employment as required by the Constitution 
and statutes or of its or his responsibi­
lities under Executive Order 11478



7a

relating to equal employment opportunity 

in the Federal Government. (July 2, 1964, 

P.L. 88-352, title VII, § 717, as added

Mar. 24, 1972, P.L. 92-261, § 11, 86 Stat

111, as a m e n d e d , Feb. 15, 1 980, P.L

96-191, § 8(g), 94 Stat. 34.)



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