Smith v Hampton Training School for Nurses Appellants Brief

    I f  th e

i>uprm£ (tort nf %  TUnxtvb BUUb
October Term, 1979 

No. 79-...........

B arbara N. C opeland ,

y.
Petitioner,

S a m u e l  R . M a r tin e z ,
Director Community Services Administration.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR THE 

DISTRICT OF COLUMBIA CIRCUIT

J ack  Greenberg 
J am es M . N abrit , I I I  
C harles S te p h e n  R alston  
B il l  L a n n  L ee 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

A lexander  G. P ark

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

Attorneys for Petitioner



INDEX

Page

Opinions Below ..............................................................  1

J u r i s d i c t i o n  ................................................................... 2

Question Presented ................................................   2

Statutory Provisions  Involved .............................  2

Statement o f  the Case ............................................... 4

Reasons for  Granting the Writ .............................  6

I.  The Decision o f  the Court Below 
C o n f l i c t s  With This Court 's  
Decision in Brown v. General 
Services  Administration and Other 
Decisions o f  This Court ........................... 6

I I .  This Case Presents An Issue o f
Substantial  National Importance ,
Involving The Enforcement o f  the
C iv i l  Rights Acts ...................................... 14

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

APPENDIX ............................................................................ la

l



TABLE OF AUTHORITIES

Page

Cases

Bel l  v.  School Board o f  Powhatan County,
321 F . 2d 494 (4th Cir .  1963) ....................  20

Brown v.  General Services  Administration,  
425 U.S. 820 (1976) ...................... . .......... . . 6 , 7 , 8 ,

10,18

Cannon v.  University  o f  Chicago,
U.S. , 60 L.Ed. 2d 

560 (1979) ........................................................

Chandler v. Roudebush, 425 U.S. 840
(1976) ................................................................ 8 ,10 ,15

Christiansburg Garment Co. v .  EEOC,
434 U.S. 412 (1978) ............................... . . . .  11,20

Dugan v. Rank, 372 U.S. 609 (1963) ............. 7

Fleischmann D i s t i l l i n g  Corp. v .  Maier
Brewing Co.,  386 U.S. 714 (1967) ____ . .  9,10

Gnotta v. United States,  415 F,2d 1271
(8th Cir.  1969) ............................................ 7

Hall v. Cole,  412 U.S. 1 (1973) .................... . .  9,16

Jaspers v. Alexander,  15 FEP Cases
1234 (D.D.C. 1977) ...................................... 18

Kennedy v. Rabinowitz,  318 F .2d 181
(D.C. Cir. 1963), a f f ' d  on other 
grounds, 376 U.S. 605 (1964) ................ 7

-  n  -



Page

Lynch v.  Alworth-Stephens C o . , 267
U.S. 364 (1924) .................    10

McQueary v.  Laird, 449 F.2d 608 (10th
Cir .  1971) ............................................................  7

Manhattan Bronx Postal Union v.
Gronowski, 350 F.2d 451 (D.C. Cir.
1965) .......................................................................  7

Newman v.  Piggie  Park Enterprises ,
309 U.S. 400 (1968) ........    11

Parker v. Cali fano, 561 F.2d 320
(D.C. Cir.  1977) ...............................................  20

Richerson v. Jones, 551 F.2d 918
(3rd Cir .  1977) .................................................  7

R i t te r  v. Morton, 513 F .2d 942 (9th
Cir .  1975) ............................................................  7

Sierra Club v.  Hickel ,  467 F.2d 1048
(6th Cir.  1972) .................................................  7

Simons v. Vinson, 394 F .2d 732 (5th
Cir .  1968) ............................................................  7

Wyandotte Transportation Co. v.  United
States,  389 U.S 191 (1967) ......................... 9

-  i i i  -



Page

S tatu tes :

42 U.S.C. § 1988 ...........................................................  12,14

42 U.S.C. § 2000e-5(k) ............................................  passim

42 U.S.C. § 2000e-16(c)  .......................    2 ,4 ,

42 U.S.C. § 2000e-16(d) ............................................  3

Other Authorit ies

Assistant  Attorney General, C iv i l
D iv is ion  Memorandum to A l l  General
Counsels and A l l  United States
Attorneys , Apri l  14, 1978 ........................... 18

110 Cong. Rec. 1640 (1964) ...................................  21

122 Cong. Rec. H. 12152 (d a i ly  ed. (
Oct. 1, 1976) ...................................................... 13,14

Subcommittee on labor o f  the Senate
Comm, on Labor and Public Welfare,
L eg is la t iv e  History o f  the
Equal Employment Opportunity
Act o f  1972 (Comm. Print 1972) ................ 16,17

-  iv  -



IN THE

SUPREME COURT OF THE UNITED STATES 

October Term, 1979 

No. 79-

BARBARA N. COPELAND,

P et i t ion er ,
v.

SAMUEL R. MARTINEZ, Director
Community Services  Administration

PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF 

APPEALS FOR THE DISTRICT OF 
COLUMBIA CIRCUIT

The p e t i t i o n e r ,  Barbara N. Copeland, re  
s p e c t f u l l y  prays  that  a Writ  o f  C e r t i o r a r i  

issue to review the judgment and opinion of  the 
United States Court o f  Appeals for  the D is t r i c t  

o f  Columbia C ircu it  entered in th is  proceeding on 
July 24, 1979.

Opinions Below

The opinion o f  the Court o f  Appeals is  unre — 

ported and is  set out in the Appendix hereto ,  pp. 
la-22a.  The opinion o f  the D i s t r i c t  Court is  r e ­



2

ported at 435 F. Supp. 1178 (D.D.C. 1977), and is 

set  out in the Appendix hereto ,  pp. 23a-34a. The 
order o f  the D i s t r i c t  Court awarding counsel fees ,  

the order that is  at issue here, is  unreported and 
is set out in the Appendix hereto  at pp. 372-38a.

Ju r is d i c t i o n

The judgment o f  the Court o f  Appeals  was 

entered on July 24, 1979. J u r i s d i c t i o n  of  th is
Court i s  invoked under 28 U .S .C .  § 1 2 5 4 ( a ) .

Question Presented
<

May a D i s t r i c t  Court award counsel fees  to  

the United States when i t  is a p reva i l ing  defen­
dant in an act ion  under T i t l e  VII o f  the C iv i l  

Rights Act of  1964 under any circumstances in  the 
face of  § 706 o f  that s tatute  which proh ib i ts  such 
an award to  the United States?

Statutory Provisions  Involved

Sect ion 717(c)  o f  T i t l e  VII o f  the 1964 C iv i l  
Rights Act ,  as amended, 42 U.S.C. § 2000e-16(c) ,  

p r o v id e s :



3

Within t h i r t y  days o f  r e c e ip t  o f  not ice  
o f  f i n a l  a c t i o n  taken by a department,  
agency, or unit re fe r re d  to in subsect ion (a) 
o f  t h i s  s e c t i o n ,  o r  by the C i v i l  S e r v i c e  
Commission upon an appeal from a d e c i s io n  or 
order of  such department, agency, or  unit on 
a complaint o f  d iscr im inat ion  based on race,  
c o l o r ,  r e l i g i o n ,  s e x ,  o r  n a t i o n a l  o r i g i n ,  
brought pursuant to subsect ion (a)  o f  this  
s e c t io n ,  Executive Order 11478 or any suc­
c e e d in g  E x e c u t iv e  o r d e r s ,  o r  a f t e r  one 
hundred and eighty days from the f i l i n g  o f  
the i n i t i a l  charge with  the department,  
agency ,  o r  u n i t  or w ith  the C i v i l  S e r v i c e  
Commission on appeal from a d e c i s io n  or order 
o f  such departm ent ,  agency ,  o r  u n i t  u n t i l  
such time as f in a l  ac t ion  may be taken by a 
department, agency, or  unit ,  an employee or 
applicant for  employment, i f  aggrieved by the 
f in a l  d i s p o s i t i o n  o f  h is  complaint,  or by 
the f a i l u r e  t o  take f i n a l  a c t i o n  on h i s  
complaint, may f i l e  a c i v i l  act ion  as pro­
vided in s e c t io n  2000e-5 o f  this  t i t l e ,  in 
which c i v i l  ac t ion  the head o f  the depart­
ment, agency, or unit ,  as appropriate,  shal l  
be the defendant.

S e c t i o n  717 (d )  o f  T i t l e  VII o f  the 1964 
C iv i l  Rights Act,  as amended, 42 U.S.C. § 2000e- 

16(d) ,  provides:
The p r o v i s i o n s  o f  s e c t i o n  2 0 0 0 e - 5 ( f )  

through (k )  o f  t h i s  t i t l e ,  as a p p l i c a b l e ,  
sha l l  govern c i v i l  act ions  brought hereunder.

Section 706(k) o f  T i t l e  VII o f  the 1964 C iv i l  
R ights  A c t ,  42 U .S .C .  § 2 0 0 0 e - 5 ( k ) ,  p r o v i d e s :

In any act ion  or proceeding under this 
subchapter the court ,  in i t s  d i s c r e t io n ,  may 
al low the p reva i l ing  party,  other than the



-  4 -

Commission or the United S ta tes , a reasonable 
a t to rney 's  fee as part o f  the cos ts ,  and the 
Commission and the United S ta te s  s h a l l  be 
l i a b l e  fo r  cos ts  the same as a private person 
(Emphasis suppl ied ) .

Pub. L. 88-352, T i t l e  VII,  § 706, July 2, 1964, 
78 Stat .  259; Pub. L. 92-261, §§ 4, 11, Mar. 24, 
1972, 86 Stat.  104.

Statement o f  the Case

This i s  an a c t i o n  brought  pursuant t o  42 

U.S.C. § 2000e-16(c)  o f  T i t l e  VII o f  the C iv i l  
R ights  Act o f  1964, as amended by the Equal 

Employment Act of  1972. It  was brought on behalf  
o f  a Black  woman employed by an agenpy o f  the 

federal  government, the Community Services  Ad­
m in is tra t ion ,  as a GS-11 Program S p ec ia l i s t  in the 

O f f i c e  of  Human Rights.  In her complaint, p la in ­
t i f f ,  p e t i t i o n e r  here ,  a l leged  that she had been 

denied promotion to grade GS-12 because o f  her 
race (Black) and sex ( female) .

F o l l o w in g  the t r i a l ,  the D i s t r i c t  Court 
e n t e r e d  an o p i n i o n  and o rd er  on August 23, 

1977, awarding judgment t o  the de fendant  and 
dismissing the act ion .  (Appendix pp. 23a-34a).  
In i t s  d e c i s io n ,  the court found that the act ion  
was without merit and was brought fo r  the purpose 
o f  harassment and in bad fa i th .  The court found 
no cred ib le  evidence that the p l a i n t i f f  had been



5

discriminated  against,  or had su f fered  harassment 

or  r e p r i s a l  f o r  hav ing  f i l e d  d i s c r i m i n a t i o n  
complaints.  The court also  found that both the 

p l a i n t i f f  and one o f  her witnesses were biased 
against th e i r  immediate supervisor  and that the ir  

t e s t im o n y  was not  c r e d i b l e .  The tes t im ony  o f  
d e f e n d a n t ' s  w i t n e s s e s ,  on the o th e r  hand, was 

found t o  be c r e d i b l e  and t o  be supported  by 
documentary evidence.

The Court c o n c lu d e d  that  " p l a i n t i f f  a c ted  
v e x a t i o u s l y ,  m a l i c i o u s l y ,  and in  bad f a i t h  in 

b r i n g i n g  and m a in ta in in g  t h i s  a c t i o n  and has 
i n t e n t i o n a l l y  abused the j u d i c i a l  p r o c e s s . "  

(Appendix, p. 30a . )  <
As a resu lt  o f  these findings the d i s t r i c t  

court  awarded costs  and a t torneys '  fees  in favor 
o f  the defendant and against the p l a i n t i f f  (pp. 

31a-33a).  Subsequently,  on the basis  o f  a submis­
s ion made by the United States Attorney, judgment 

was issued on October 7, 1977 in a t o t a l  amount o f  
$3,520.89 which included attorneys '  fees  in the 

amount o f  $ 3 ,1 9 2 .4 0  ( 3 8 a . )  P l a i n t i f f  f i l e d  a 
t im e ly  n o t i c e  o f  appeal  l i m i t e d  to  the award 

o f  counsel fees against her.
On July  24, 1979, the c o u r t  o f  appeals

affirmed the d i s t r i c t  court .  I t  held,  despite 
the language o f  42 U.S.C. § 2000e_5(k) p roh ib it ing  

the award of  counsel fees on behalf  o f  the govern­
ment, and despite  the hold ing o f  this  Court in



6

Brown v.  General Services Administration, 425 U.S. 
820 (1976) that T i t l e  VII was the exc lus ive  remedy 
f o r  employment d i s c r i m i n a t i o n  by government 

a g e n c i e s  and that  i t s  p r o v i s i o n s  governed the 
award of  counsel f e e s ,  that there remained in the 

d i s t r i c t  c o u r t  a r e s i d u a l  common law power to  
award fees  under an exception to  the "American 

r u l e "  in  c a s e s  where s u i t s  were brought  v e x a -  
t i o u s ly  or f o r  harassment (Appendix, pp. la -22a ) .  

This p e t i t i o n  for  a writ o f  c e r t i o r a r i  to review 
that d e c i s i o n  fo l lowed.

Reasons for  Granting The Writ

I .

The D e c i s i o n  o f  The Court Below C o n f l i c t s  
with This C o u r t ' s  D e c i s i o n  in Brown v . 
General S e r v i c e s  A d m i n i s t r a t i o n  And Other 
Decisions  o f  This Court.

In Brown v.  General Services Administration, 
425 U.S. 820 (1976) ,  the government argued and 
t h i s  Court h e ld  that  when the 1972 amendments 
to  T i t l e  VII extended i t s  coverage t o  the federal  
government,

. . . the congressional  intent in 1972 was to 
create an exc lu s ive ,  preemptive administra­
t iv e  and ju d i c i a l  scheme fo r  the redress of  
f ederal  employment discr imination.

425 U.S. at 829. Therefore,  th is  Court held that 
the prov is ions  o f  T i t l e  VII, and s p e c i f i c a l l y  42 
U.S.C. § 2000e-5(k),



7

govern such issues  as venue, the appointment 
of  attorneys ,  a t t o r n e y s 1 fees ,  and the scope 
o f  r e l i e f .

425 U.S. at 432 (emphasis added).

Sect ion 2000e-5(k) ,  provides that:

In any a c t i o n  or  p r o c e e d in g  under t h i s  
subchapter the court ,  in i t s  d i s c r e t io n ,  may 
al low the p reva i l ing  party,  other than the 
Commission or the United S ta tes , a reasonable 
a t t o r n e y ' s  f e e  as p ar t  o f  the c o s t s  . . . .  
(Emphasis added.)

Despite the holding in Brown that the lan­
guage o f  § 2000e-5(k) is  exc lus ive  and pre-emptive

and despite  the e x p l i c i t  p roh ib i t ion  in that s e c -
1 /t i o n  against fee awards to the United S tates ,— 

both  c o u r t s  below n e v e r t h e l e s s  h e ld  ( that the 
government retained a residual  common-law r ight

1 /  The f a c t  that  the nominal de fendant  in  a 
federa l  T i t l e  VII ac t ion  is  the agency head does 
not change the fa c t  that the act ion  is against 
the United States and that any counsel fee award 
inures to  the bene f i t  of  the government. See, 
Richerson v.  Jones , 551 F.2d 918, 925 (3rd C i r . 
1977);  Gnotta v.  United S ta tes , 415 F.2d 1271, 
1277 (8th Cir.  1969), and cases there c i t e d ;  Dugan 
v.  Rank, 372 U.S. 609 ( 1 9 6 3 ) ;  Manhattan Bronx 
Postal Union v.  Gronowski, 350 F .2d 451 (D.C. Cir.  
1965);  Kennedy v. Rabinowitz, 318 F.2d 181 (D.C. 
Cir .  1963), a f f ' d  on other~~grounds, 376 U.S. 605 
(1964);  McQueary v.  La ird , 449 F .2d 608 (10th Cir. 
1971);  R i t te r  v.  Morton, 513 F . 2d 942 (9th Cir. 
1975); Sierra Club v. H icke l , 467 F.2d 1048 (6th 
Cir .  1972); Simons v.  Vinson, 394 F.2d 732 (5th 
Cir .  1968).



8

to rece ive  fee awards under the "American r u l e . "  

Pet i t ioner  urges that the dec is ion  below is in 
d i r e c t  c o n f l i c t  with Brown v. General Administra- 

t ion ,  supra, and with a long line  o f  dec is ions  
that  h o l d  that  s t a t u t e s  are to  be g iven  t h e i r  

p la in  meaning. See, e . g . , Chandler v.  Roudebush, 
425 U.S. 840, 848 (1976).

In Brown v .  G .S . A . the s p e c i f i c  i s s u e  was 
whether  Con gress ,  when i t  made the remedies  

provided by T i t l e  VII appl icable  to the federal 
government, intended those remedies to  be exc lu ­
s ive .  P e t i t ioner  argued that there was no such 
intent ,  and that federal  employees had avai lable  a 

range o f  a l t e r n a t i v e s  t o  c o r r e c t  employment 
d iscr imination .  The government argued that T i t l e  

VII pre-empted a l l  other j u d i c i a l  remedies,  urged 
in i t s  b r i e f  that T i t l e  VII "de f ines  the scope o f  

the d i s t r i c t  c o u r t ' s  rem edia l  a u t h o r i t y " ,  and 
pointed out that:

S e c t i o n  706 (k )  g iv e s  the d i s t r i c t  c o u r t  
d i s c r e t i o n  to  a l low  the com pla inant ,  i f  
he p r e v a i l s ,  a reasonable a t to rney 's  fee as 
part o f  the cos ts .

Br ie f  for  Respondents, Brown v. General Services 
Administration, No. 74-768, p. 18.

This Court agreed  with the governm ent 's  
p o s i t i o n .  It  f i r s t  noted that d iscr imination  by 
the federal  government had been prohibited both 
by the Const itut ion and by statute  p r io r  to the 
1972 amendments to T i t l e  VII.  The existence o f



9

a j u d i c i a l  remedy f o r  such d i s c r i m i n a t i o n ,  on
the o th e r  hand, was at b e s t  p r o b l e m a t i c a l .
425 U.S. at 825-27. Thus, the ent ire  purpose o f
the 1972 Act was to es ta b l i sh  and define jud ica l
remedies, and the intent o f  Congress was:

to  create an exc lus ive ,  pre-emptive adminis­
t ra t ive  and j u d i c i a l  scheme for  the redress 
o f  federal  employment d iscr imination .

425 U.S. at 829. Moreover, that scheme governed 
"such issues as . . . a t torneys '  f e e s . "  I d . at
832.

The d e c i s i o n  in Br own br in g s  t h i s  case

squarely within dec is ions  such as Fleischmann
D i s t i l l i n g  Corp. v. Maier Brewing Co. ,  386 U.S.

714 (1967).  There, th is  Court held that since
Congress had, "meticulously  deta i led  the remedies

a v a i l a b l e , "  in trademark infringement cases ,  the
in t e n t  was that  those  remedies  be e x c l u s i v e .

Therefore,  the courts were without power to  award
c o u n s e l  f ees  even under one o f  the r e c o g n i z e d

2 /e x c e p t i o n s  to  the American r u l e . — 386 U.S. 
719 -21 .  See a l s o ,  Hall  v.  C o l e , 412 U.S 1, 
9 -10  ( 1 9 7 3 ) ,  in  which the Court noted that

2/ Contrast,  Wyandotte Transportation Co. v . 
United S t a t e s , 389 U.S 191 ( 1 9 6 7 ) ,  where t h i s  
Court held that since the Rivers and Habors Act 
o f  1899 was not intended  t o  p ro v id e  e x c l u s i v e  
remedies and procedures,  the United States could 
r e c o v e r  expenses  o f  removing s h ip s  that  were 
blocking passages.



10

Congress has the power to circumscribe fee s h i f t -  
ing, c i t i n g  Fleischmann as an example o f  where 
that had been done by the enactment o f  a statute 
that deta i led  the remedies ava i lab le .

In the present case,  the government abandoned 
the p o s i t i o n  i t  had su cce s s fu l ly  urged in Brown, 
and argued (without c i t i n g  or d iscussing Brown) 
that T i t l e  VII did not e x c lu s ive ly  govern r e l i e f .  
Rather, there remained in the courts a residual  
power t o  award co u n s e l  f e e s  independent  o f  
§ 2000e-5(k).  The Court o f  Appeals accepted that 
argument by d ist inguish ing  Fleischmann and without 
d i s c u s s i n g  the language in Brown quoted above 
which held that the sect ion  governs "such issues 
as . . . a t torneys '  f e e s . "  <

In reaching i t s  dec is ion  the court below held 
that fees could be awarded despite  the language 
p roh ib i t ing  awards in favor o f  the United States.  
That dec is ion  is squarely in c o n f l i c t  with numer­
ous dec is ions  of  th is  Court upholding the f i r s t  
and most basic  canon o f  s tatutory construct ion  
that :

The p la in ,  obvious,  and rat iona l  meaning o f  a 
s t a t u t e  i s  always t o  be p r e f e r r e d  to  any 
curious,  narrow, hidden sense that nothing 
but the e x ig e n c y  o f  a hard case  and the 
ingenuity and study o f  an acute and powerful 
i n t e l l e c t  would d iscover .

Lynch v,  Alworth-Stephens Co. , 267 U.S 364, 370
(1924);  Chandler v. Roudebush, 425 U.S 840, 848
(1976).



11

P e t i t i o n e r ' s  p o s i t i o n  is simple:  the statute
means p re c i s e ly  what i t  says. Under no circum­

stances is the government to  rece ive  counsel fees .  
When a private p l a i n t i f f  prevai ls  he w i l l  rece ive  

f e e s  as a matter  o f  c o u rse  e x c e p t  under very 
l i m i t e d  c i r c u m s t a n c e s ,  ( Newman v .  P i g g i e  Park 
Enterpr ises , 390 U.S. 400 (1968 ) ) .  A private ,  or 
state  or l o c a l  government, employer may rece ive  

fees when an act ion  has been brought to  harass or 
v e x a t i o u s ly  ( Christiansburg Garment Co. v.  EEOC, 

434 U.S. 412 (1978 ) ) .  But the United States may 
n o t .

It  is c lear  that Congress be l iev es  that that
is  what the language o f  the statute  means*. During

the debate over the C iv i l  Rights Attorneys '  Fees
Act o f  1976, a statute  designed to bring about

uniformity in the various c i v i l  r ights  statutes
with regard to  attorneys '  fees ,  the question of

the circumstances under which defendants could
3/rece ive  fees was was ra ise d .— In two co l loquys

_3/ This  Court has r e l i e d  on the l e g i s l a t i v e  
h is to ry  o f  the 1976 Act in interpret ing  T i t l e  IX 
o f  the Education Amendments o f  1972, as well  as 
T i t l e  VI o f  the C i v i l  R ights  Act  o f  1964. In 
Cannon v. University  o f  Chicago, U.S. , 
60 L . Ed. 2d 560, 569 n . 7 ( 1979TT I t  was noted 
t h a t :



12

involv ing Rep. Drinan, the f l o o r  leader for  the 
b i l l  in the House o f  Reprsentat ives , i t  was made 
c le a r  that language id e n t ica l  to  that found in 

§ 2000e-5(k)— was intended to  be a "proh ib i t ion  
against the United States recover ing attorneys 
f e e s " ,  "under any thes is  or under any hypothe­
s i s . " — Thus, not only does the d ec is ion  o f  the

3/ c o n t ' d .

Although we cannot a c c o r d  these  remarks 
the weight  o f  contemporary l e g i s l a t i v e  
h i s t o r y ,  we would be remiss  i f  we ignored  
these author itat ive  expressions concerning 
the scope  and purpose o f  T i t l e  IX and i t s  
place within "the c i v i l  r ights  enforcement 
scheme" that  s u c c e s s i v e  Congresses  have 
created over the past 110 years.

4 /  42 U.S.C. § 1988 provides,  in pertinent part,
t h a t :

. . . In any ac t ion  or proceeding to  enforce
a p r o v i s i o n  o f  s e c t i o n s  1981, 1982, 1983, 
1985, and 1986 o f  th is  t i t l e  . . .  or T i t l e  
VI o f  the C i v i l  R ights  Act  o f  1964, the 
court ,  in i t s  d i s c r e t io n ,  may allow the pre­
va i l in g  party,  other than the United States,  
a reasonable a t to rney 's  fee as part o f  the 
c o s t s .

5 /  MR. McCLORY.
* * * *

It is my understanding that the Senate 
b i l l  provides fo r  the allowance o f  fees to  
attorneys who p re va i l ,  for  the p l a i n t i f f  i f  
the p l a i n t i f f  prevai ls  in court,  or for  the 
defendant i f  the defendant preva i ls ,  or with



13 -

court below f l y  in the face o f  c l e a r  statutory 
language, but i t  resu lts  in curious anomaly. I f  
the United States i s  sued pursuant to  T i t l e  VI o f  
the C iv i l  Rights Act o f  1964, the award o f  counsel

5 /  cont ' d .

respect  to  su its  which are brought involving 
the Internal Revenue Code, i f  the defendant 
preva i ls  and can show that such act ion  was 
f i l e d  in  bad f a i t h .  In o th e r  words,  the 
United S ta te s  i s  e x c lu d e d  from any a t t o r ­
n e y ' s  f e e s  under any t h e s i s  or  under any 
hypothesis that we might present with regard 
to  th is  l e g i s l a t i o n .

*  * *  *  *

There i s  a p r o h i b i t i o n  ag a in s t  the 
United S ta te s  r e c o v e r i n g  a t t o r n e y s '  f e e s  
e i ther  in a c i v i l  r ights  case or in  income 
tax matters.

MR. DRINAN. That is  pervasive in the whole 
United States Code.

122 Cong. Rec. H .12152 ( d a i ly  ed. Oct. 1, 1976). 

MR. WHITE . . . .

Does th is  act we are attempting t o  pass 
now supersede the court d e c is io n s .  In other 
words, would the defendant get an equal oppor­
tunity  to  rece ive  attorneys fees ,  or  i s  the 
defendant who prevai ls  going to  be l imited 
as to whether or not there is a su it  brought 
m alic ious ly  or in harassment or with other 
qual i fy ing  features?



14 -

fees  is  governed by 42 U.S.C. § 1988. The l e g i s ­

la t iv e  h i s t o r y  o f  that statute  (see fn.  5, supra) 
makes i t  c l e a r  that the government may not have 
counsel fees  awarded even in a case found to be 
brought  m a l i c i o u s l y .  I f  the United S ta te s  is  
sued pursuant to  T i t l e  VII o f  the same a c t ,  
a c c o r d i n g  to  the co u r t  be low ,  i t  may r e c e i v e  

counsel fees  under the same circumstances.  I t  is 
d i f f i c u l t  t o  b e l i e v e  that  Congress  co u ld  have 
intended such a resu l t .

I I .

This Case Presents An Issue o f  Substantial 
National Importance Involving The Enforcement 
o f  The C iv i l  Rights Acts

Faced with  the language o f  the s t a t u t e ,  
Congressional intent  in enacting the 1972 amend-

5/ c o n t ' d .

MR. DRINAN. I f  the gentlemen w i l l  y i e ld ,  I 
w i l l  state that the U.S. Government may not 
hav e  a t t o r n e y  f e e s  a w a r d e d . In o t h e r  
cases,  i t  belongs in the proper d is c r e t io n  o f  
the judge. I f  the suit  is o f  a vexatious and 
h a r a s s in g  n a tu re ,  the defendant  o b v i o u s l y  
should be given his  reasonable attorney fees .  
I think i t  is a l l  c a r e fu l ly  regulated by a 
body o f  law which goes  back at l e a s t  50 
years.  (Emphasis added. )

122 Cong. Rec. H. 12155 (da i ly  ed. Oct. 1, 1976).



15 -

ments, and Congress' understanding that the United 
S ta te s  may not r e c e i v e  co u n s e l  f e e s  in  c i v i l  
r ights  cases under any circumstances,  the court 
below rested  i t s  dec is ion  on i t s  view as to the 
appropriate p o l i cy  considerat ions  in determining 
whether fees  should go to  the government. In the 
c o u r t ' s  view, the p o l i cy  o f  deterr ing  baseless 
lawsuits should apply to  cases brought against 
the government.

P e t i t io n e r  urges f i r s t ,  that for  the court 
to  subst i tu te  i t s  judgment as to proper p o l i c y  fo r  
that c l e a r l y  expressed by Congress, is  in c o n f l i c t  
with th is  Court 's  d e c i s io n  in Chandler v.  Roude- 
bush_, 425 U.S 840 (1976).  There, the government 
argued that  d e s p i t e  the c l e a r  language o f  the 
s tatute ,  a f ederal  employee should not rece ive  a 
t r i a l  de_ novo in a T i t l e  VII ac t ion ,  because such 
t r i a l s  would defeat the underlying p o l i c i e s  of  
the statute .  This Court r e je c te d  the argument on 
the ground that ,  "Congress has made the choice ,  
and i t  is not for  us to disturb i t . "  425 U.S. at 
863-64. Similarly  here,  Congress has chosen to 
deny the United States the r ight  to counsel fees ,  
and that  c h o i c e  i s  b in d in g  on the c o u r t s . —̂

6/  In a rather c ryp t i c  footnote  the court below 
suggests that there might be some c o n s t i tu t io n a l  
impediment to  Congress ' denying counsel fees to 
the government. See, App. , P. 22a, n.69. How-



16

Second, p e t i t i o n e r  urges that the court below 
improperly balanced the p o l i c y  in teres ts  involved 
and ignored those considerat ions  which support the 
Congressional choice to deny fees to the govern­
ment. When i t  passed the 1972 amendment to T i t l e  
VII,  Congress was acutely aware o f  the necess i ty  
for  c o r rec t in g  entrenched discr imination  in the 
federal s e rv ice .  The Senate Committee Report on 
S. 2515, the Senate vers ion  o f  the 1972 Act,  em­
phasized the spec ia l  importance o f  moving against 
discr imination  in Federal Employment:—̂

The Federal  government,  with  2 .6  m i l l i o n  
employees, is  the single  largest  employer in 
the Nation. It a lso  comprises the central 
policymaking and administrative network for 
the N at ion .  C on sequ ent ly ,  i t s  p o l i c i e s ,  
ac t ions ,  and programs strongly inf luence the

6/ c o n t 'd .

ever,  th is  Court has already made i t  c lear  that 
Congress has the power to  c i r c u m s c r i b e  " f e e -  
s h i f t i n g "  even where i t  "would be a p p r o p r ia te  
as a matter o f  e q u i t y . "  Hall v. Cole,  412 U.S. 
1, 9 (1973).

JJ The l e g i s l a t i v e  h is to ry  o f  the 1972 amend­
ments o f  T i t l e  VII has been compiled in Sub Com. 
on Labor o f  the Senate Comm, on Labor and Public 
Welfare,  Leg is la t ive  History o f  the Equal Employ­
ment Opportunity Act o f  1972 (Comm. Print 1972) 
(here inafter  "Leg is la t ive  H istory " ) .



17

a c t i v i t i e s  o f  a l l  other enterpr ises ,  organ­
iza t ions  and groups. In no area is govern­
ment a c t i o n  more important thatn  in  the 
area o f  c i v i l  r ig h t .  8/

During the debates and in the House and Senate 
reports ,  excerpts  were taken from a study released 
by the C iv i l  Service Commission, Minority Group 
Employment in  the F e d e ra l  Government, ( 1 9 7 0 ) ,  
which showed that m inor it ies  represented 19.4% o f  
the t o t a l  employment in the federal  government, 
but that they were heavi ly  concentrated in the 
lower grade l e v e l s . — In view o f  these s t a t i s ­
t i c s ,  the Senate Committee Report explained that 
there was a p ar t i cu lar  need not only to improve 

the a d m i n i s t r a t i v e  p r o c e s s  f o r  d e a l i n g  with  
d iscr imination ,  but also  to ensure free access to 
the courts .

The provis ions  adopted by the committee w i l l  
enable the Commission to grant f u l l  r e l i e f  to  
aggrieved employees, or appl icants ,  including 
back pay and immediate advancement as appro­
p r i a t e .  . . . The b i l l  . . . e n ab les  the 
aggr i eved Federal employee (or  applicant fo r  
employment) to  f i l e  an act ion  in the appro­
p r i a t e  U.S.  d i s t r i c t  c o u r t  . . . .  10/

8/  L eg is la t ive  History at 421.

2J i d . at 422. 43.4% o f  the workers in  the
lowest 8 o f  the 18 GS (General Schedule) grades 
were minority.  S im ilar ly ,  76.7% o f  women employ­
ees were in grades GS-1 through GS-6.

10/ Id. at 425.



18

See, Brown v.  General Services Administration, 425 
U.S. at 827-28.

Congress be l ieved ,  then, that the need for  
aggrieved federal  employees to bring T i t l e  VII 
su its  was e s p e c ia l ly  great ;  there fore ,  the de­
terrent o f  the prospect o f  l i a b i l i t y  for  fees  i f  
the employee l o s e s ,  would be p a r t i c u l a r l y  i n ­
a p p r o p r i a t e .  I t  must a l s o  be assumed that  

Congress was aware that there were other deter ­
rents t o  the bringing o f  baseless  lawsuits.  Any 

p l a i n t i f f  i s  f a c e d ,  in  such l i t i g a t i o n ,  with 
taking on the government and i t s  vast resources o f  

attorneys,  funds, and support personnel.  I f  the 
suit  is l o s t ,  the p l a i n t i f f  w i l l  be l i a b le  for  
c o s t s ,  which can be substantial in a T i t l e  VII 
s u i t ,  and which the government is not prohibited  

from recovering by § 2000e-5 (k ) .—  ̂ Thus, i t  was

11/ The Department o f  Just ice  has adopted the 
p o l i c y  o f  seeking cos ts  in T i t l e  VII su its  only 
where the p l a i n t i f f  brought  the a c t i o n  in bad 
f a i t h ,  the s u i t  was pursued in  a h a r a s s in g  or 
v e x a t i o u s  manner, or  a c la im  was l i t i g a t e d  
that was patent ly  goundless or f r iv o lo u s .  Mem­
orandum To A l l  General Counsels and A l l  United 
S ta te s  A t to r n e y s  from the A s s i s t a n t  A ttorney  
General,  C iv i l  D iv is ion ,  Apri l  14, 1978. See,
Jaspers v.  Alexander, 15 FEP Cases 1234 (D.D.C. 
1977) . The Department o f  J u s t i c e  memorandum 
states  that "motions for  costs  are intended to 
deter baseless  or unreasonable c la im s . "



19

reasonable for  Congress to decide to exclude the 

additonal threat o f  a counsel fee award.
When one l o o k s  to  the en forcem ent  scheme 

e s t a b l i s h e d  by T i t l e  V I I ,  i t  i s  apparent  that  
there  i s  a c l e a r  b a s i s  f o r  d i s t i n g u i s h i n g  b e ­

tween the f e d e r a l  government and o ther  d e f e n ­
dant employers when i t  comes t o  a t t o r n e y ' s  

f e e s .  The f e d e r a l  government has s u b s t a n t i a l  
r e s p o n s i b i l i t y  f o r  e n f o r c i n g  the p r o v i s i o n s  

o f  T i t l e  VII against private  and state  and l o ca l  
government employers. The r e s p o n s ib i l i t y  goes 

beyond administrative enforcement since the EEOC 
and the Department o f  Just ice  have the authority 

both to bring o r i g i n a l l y ,  and to intervene in,  
court act ions .  Because a major ro le  enforcement 
o f  the Act l i e s  with the public  attorney general,  
i t  was reasonable for  Congress to  decide that not 
a l l  act ions by would-be private attorneys general 
should  be encouraged .  Thus, c o u n s e l  fees  are 

obtainable by a private  or state  or l o ca l  govern­
ment employer in cases that are found to  have been 
unfounded and vexatious .

On the other hand, the sole means of court 
en forcem ent  o f  T i t l e  VII ag a in s t  the f e d e r a l  
government l i e s  with private  persons. There is no 

publ ic  attorney general who can bring such law­



20

su i t s .  Given this  f a c t ,  and given the great 
imbalance o f  resources already e x is t in g  between a 
single  federal  employee on the one hand, and the 
federal  government on the other,  i t  was wholly 
r e a s o n a b le  f o r  Congress  to  d e c id e  that  the in 
terrorem e f f e c t  o f  the p o s s i b i l i t y  o f  an award of  
counsel fees  under any circumstances would s e r i ­
ously in h ib i t  the enforcement o f  the Act.

Indeed, Congress made p re c i s e ly  this  judgment 
when i t ,  in 1964, barred awards o f  counsel fees in 
behalf  o f  the government as a p l a i n t i f f .  To our 
knowledge ,  the United S ta te s  has never  sought
counsel fees under the American rule when i t  was

. . 1 3 / 'the p l a i n t i f f  in a T i t l e  VII a c t i o n .—  However,
i t  is poss ib le  for  a defendant to  l i t i g a t e  a case 
in  bad f a i t h  and w ith  "o bd u ra te  o b s t i n a n c e " ;  
counsel fees  have indeed been awarded to  p r e v a i l ­
ing p l a i n t i f f s  under such circumstances. See, 
e - g •, Bell  v.  School Board o f  Powhatan County, 321 
F. 2d 494 (4th Cir. 1963). The p o l i c y  cons idera­
t ions  underlying T i t l e  VII — the e f f e c t i v e  and

12/  See, Parker v.  Ca l i fano , 561 F.2d 320, 331
(D.C. Cir .  1977).

13/  Indeed ,  in  the b r i e f  f i l e d  by the United 
States in Christiansburg Garment Co. v.  EEOC, No. 
76-1383, i t  was acknowledged that under § 2000e- 
5 (k ) ,  " .  . . the Commission cannot recover  a t t o r ­
ney 's  fees  as p l a i n t i f f . "  Brie f  for  Respondent, 
p . 24.



21

speedy ending o f  employment d iscr im inat ion— would 

be served by allowing the United States counsel 
fees  where a defendant employer has l i t i g a t e d  in 

bad fa i th  and for  delay. Nevertheless,  Congress 
c l e a r ly  declined to allow them, again because o f

the imbalance o f  resources when the United States
. . 14/is  a l i t i g a n t —  .

Congress has con s is te n t ly  determined to  keep 
from the government the weapon o f  a t t o r n e y ' s  

fees because o f  the oppressive impact i t s  threat 
could have on the other l i t i g a n t .  The dec is ion  o f  

the court below thus has broad implicat ions .  By 
permitt ing counsel  fees  to the government when i t  

is the defendant employer the dec is ion  creates a 
dissymemtry in the congress iona l ly  mandated scheme 

that is without j u s t i f i c a t i o n ,  i s  contrary to  the 
p o l i c i e s  o f  T i t l e  VII,  and could have a s ig n i f i c a n t
impact on c i v i l  r i g h t s  enforcement  a c r o s s  the 
nat ion.

lb_/ See, e . g . , the remarks of  Rep. Senner at 110 
Cong. Rec. 1640 (1964),  d iscuss ing the attorneys '  
f e e s  p r o v i s i o n  in T i t l e  I I  o f  the 1964 Act .  
After  pointing out that under the sect ion ,  the 
language o f  which is  id e n t ica l  to  that enacted in 
T i t l e  VII, private p l a i n t i f f s  and defendants could 
get attorneys '  fees  as part of  the costs ,  Rep. 
Senner s tated ,  "The United States,  however, could 
not  r e c o v e r  any amount f o r  a t t o r n e y ' s  f e e s  
i f  i t  won . . . . "



22

CONCLUSION

For the foregoing reasons the p e t i t i o n  for  a 
w r i t  o f  c e r t i o r a r i  shou ld  be granted  and the 
d e c i s io n  o f  the court below reversed.

Respect fu l ly  submitted,

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

Suite 2030 
10 Columbus Circ le  
New York, New York 10019

ALEXANDER G. PARK
910 17th Street N.W. 
Suite 812
Washington, D.C. 10006

Attorneys for  Pet i t ioner



APPENDIX

Decisions of  the 

Courts Below.



* 
B*

la

N o ti« : This opinion is subject to formal revision before publication 
 ̂ e“ er^L Reporter or U.S.App.D.C. Reports. Users are requested 

notify the Clerk o f any formal errors in order that corrections may be 
made before the bound volumes go to press.

IlntfrZi States (Ernst uf Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 77-2059

Barbara N. Copeland, appellant

v.

Sam uel  R. Martinez, Director 
Community Services Administration

No. 77-2060

Barbara N. Copeland, appellan t

v.

Sam uel  R. Martinez, Director 
Community Services Administration

Appeals from the United States District Court 
for the District of Columbia

(D.C. Civil 76-1156)

C°sts bf  filed within 14 days after entry of judgment. The 
court looks with disfavor upon motions to file bills of costs out of time.



Argued 16 November 1978 

Decided 24 July 1979

Charles Stephen Ralston with whom Alexander G. 
Park and BUI Lann Lee were on the brief, for appellant.

Alice L. Mattice, Attorney, Department of Justice, a 
member of the bar of the Supreme Court of Massa­
chusetts pro hac vice by special leave of Court with whom 
Earl J. Silbert, United States Attorney, Barbara Allen 
Babcock, Assistant Attorney General and Robert E. Kopp, 
Attorney, Department of Justice, were on the brief, for 
appellee.

Charles E. Hill and Douglas L. Parker were on the 
brief, for Amicus Curiae, urging reversal.
_ -AJso Paul Blankenstein, Attorney, Department of Jus­

tice entered an appearance, for appellee.
Before: W right, Chief Judge, M cGow an  and W ilkey , 

Circuit Judges
Opinion for the Court filed by Circuit-Judge W ilkey .

W ilk ey , Circuit Judge: The sole question in this ap­
peal is whether the District Court may award attorneys' 
fees to the United States in a case where it has been 
sued “vexatiously and in bad faith”  under Title VII of 
the Civil Rights Act of 1964. Appellant maintains that 
such an award is barred by the plain language of the 
provision for attorneys' fees contained in the Act. We 
disagree. In light of the Act’s legislative history and 
underlying purposes, we think that it left undisturbed the 
equitable principles which historically have permitted a 
court discretion^0 award attorneys’ fees in circumstances 
like those of this case. Accordingly, we affirm the judg­
ment of the district court.1

judgment entered 
this date

1 *[û ge Pratt’s opinion is reported at 435 F. Supp. 1178 
(D.D.C. 1977).



I. Facts

The facts of this case, as they were found by the trial 
court, are not disputed and may be recounted briefly. 
Plaintiff-appellant, Ms. Copeland, is a black woman em­
ployed by the Community Services Administration. Since 
1974 she has worked as a program specialist of grade 
GS-11 in the Office of Human Rights, previously she held 
other positions with the CSA and its predecessor agency, 
the Office of Equal Opportunity. Plaintiff’s two most 
recent promotions were the result of filing grievances 
unrelated to racial or sex discrimination.

From April 1975 through December 1976 plaintiff’s 
supervisor was Carlos Ruiz, the Associate Director for 
Human Rights at CSA, against whom plaintiff filed un­
successfully some nine grievances and Equal Employ­
ment Opportunity (EEO) complaints. A complaint filed 
with the CSA on 27 June 1975 is the subject of this suit. 
It alleged, inter alia., that plaintiff was denied career 
ladder promotions and merit promotions, was denied the 
opportunity for training, and was harassed by her super­
visors, all because of her race and sex.
m -After a trial the district court found that plaintiff had 
“ failed to establish even a prima facie case of discrimi­
nation.” 2 The court observed that at all relevant times 
blacks comprised 80 percent of the staff of the Office of 
Human Rights, that women outnumbered men by a ratio 
of two to one, and that Ruiz had “promoted mostly black 
females.” 3 The court specifically found that plaintiff had 
proffered “no credible evidence” to substantiate her al­
legations. Rather, the evidence showed that the promo­
tions in question had been denied for wholly objective and 
permissible reasons.

3 a

2 Id. at 1181.

3 Id. at 1179.



Finding, moreover, that the plaintiff had “ acted vexa- 
tiously, maliciously, and in bad faith” 4 in maintaining 
the suit, and in so doing had “ intentionally abused the 
judicial process,”  5 the district court awarded the govern­
ment reasonable attorneys’ fees as part of its costs. The 
court found specifically that plaintiff had presented “no 
evidence”  of discrimination “ other than her bald, ab­
stract, and repetitive allegations.” 6 Both of plaintiff’s 
witnesses “were shown to be intensely biased” against 
Mr. Ruiz; and one admitted to “hav[ing] designs”  on Mr. 
Ruiz’s job.T Plaintiff and this witness were “ completely 
incredible”  and were found to be “conduct [ing] a ven­
detta”  against Mr. Ruiz and others in the CSA manage­
ment, “harassing them by virtually every means avail­
able including use of the EEO process to bring baseless 
charges of discrimination.”  8 The instant suit, the court 
concluded, was the “culmination of a long series of in­
tentionally vindictive and abusive actions taken to harass 
[plaintiff’s] superiors.” 9

The district court relied, in making the award, on 
traditional equitable principles, “ separate and apart from 
[Title V II] ,” 10 permitting an award of fees to a litigant 
if  the losing party has acted in bad faith. Plaintiff, not 
disputing the district court’s finding of bad faith, brought 
this appeal solely to review the legal question whether the 
attorneys’ fee provision of Title VII permits an award 
to a government defendant “under any circumstances.”  11

* Id. at 1181.
*Id.
• Id. at 1180.
'Id.
8 Id. at 1180-81.
•Id.
10 Id. at 1181 n.3.
11 Brief for Plaintiff at 4.



5a
II. A n a l y sis

A. The American Rule and Its Exception in Cases of 
Bad Faith

Although it is the general rule in the United States 
that in the absence of a statute “  or enforceable con­
tract12 13 providing otherwise, each litigant pays his own 
attorneys’ fees,14 15 16 there exist certain well-settled excep­
tions permitting an award of fees in particular situations. 
Thus a court may permit a party preserving or recover­
ing a fund, benefiting others in the same manner as 
himself, to recover his costs, including attorneys’ fees, 
out of the fund or directly from the other parties enjoy­
ing the benefit.13 Also, “ a court may assess attorneys’ 
fees for the ‘willful disobedience of a court order . . .  as 
part of the fine to be levied on the defendant . . . . ’ ” 18 
Finally, and at issue in this case, a party ordinarily may 
be permitted his attorneys’ fees “when the losing party 
has ‘acted in bad faith, vexatiously, wantoply, or for 
oppressive reasons . . . . ’ ” 17

12 See note 28 infra.
13 See, e.g., Fleischmann Distilling Corp. V. Maier Brewing 

Co., 386 U.S. 714, 717 (1967).
14 See Christianburg Garment Co. v. EEOC, 434 U.S. 412, 

415 (1978) ; Alyeska Pipeline Serv. Co. V. Wilderness Soc’y, 
421 U.S. 240, 257 (1975).

15 See Alyeska, 421 U.S. at 257-58; Hall V. Cole, 412 U.S. 
1, 5-6 (1973) ; Mills v. Electric Auto-Lite Co., 396 U.S. 375, 
391-92 (1970) ; Sprague V. Ticonic Nat’l Bank, 307 U.S. 
161 (1939) ; Trustees v. Greenough, 105 U.S. 527 (1882).

16 Alyeska, 421 U.S. at 258 (quoting Fleischmann Distilling 
Corp., 386 U.S. at 718 (citing Toledo Scale Co. v. Computing 
Scale Co., 261 U.S. 399, 426-28 (1923))).

17 Alyeska, 421 U.S. at 258-59 (quoting F. D. Rich Co. V.
United States ex rel. Industrial Lumber Co., 417 U.S. 116, 129



6a
The rationale for “ fee-shifting”  in instances of bad 

faith is essentially punitive.18 It is contemplated that the 
assessment of fees in such cases will deter abusive litiga­
tion in the future, thereby avoiding harassment and 
protecting the integrity of the judicial process. Of course, 
recovery of fees incidentally compensates the prevailing 
party for costs which should not have been incurred, and 
to that extent it is not inconsistent with the presumption 
underlying the general rule disfavoring fee awards, that 
the parties act in good faith, although not with perfect 
knowledge of the merits of their claims. Relying upon 
this exception, courts have assessed attorneys’ fees 
against both plaintiffs and defendants shown to have 
acted in bad faith.19

In the instant case it is not disputed that plaintiff 
acted in bad faith in bringing her Title VII suit, nor 
is it disputed that factually this case falls well within 
the equitable exception permitting an award of fees 
when compelled by “ overriding considerations' of jus­
tice.”  20 That is, of course, not an end to the matter, 
“ for even where ‘fee-shifting5 would be appropriate as 
a matter of equity, Congress has the power to circum­
scribe such relief.” 21 Although “ Congress has not re­
pudiated the judicially fashionable exceptions to the gen-

(1974); Newman V. Piggie Park Enterprises, Inc., 390 U.S. 
400, 402 n.4 (1968) ; Vaughn V. Atkinson, 369 U.S. 527 
(1962) ; Bell v. School Bd., 321 F.2d 494 (4th Cir. 1963) ; 
Rolax v. Atlantic Coast Line R. Co., 186 F.2d 473 (4th Cir. 
1951); 6 J. M oore, Federal Practice, 54.77 (2), at 1709 (2d 
ed. 1972) ; see generally Dawson, Lawyers and Involuntary 
Clients in Public Interest Litigation, 88 H arv. L. R ev. 849, 
889-95 (1975).

M Hall v. Cole, 412 U.S. at 5.
19 See Dawson, supra note 17, at 890 nn.155-56 (citing 

cases).
20 Fleischmann Corp., 386 U.S. at 718.
81 Hall v. Cole, 412 U.S. at 9.



eral rule against allowing substantial attorneys’ fees,” 22 
still, as the Supreme Court restated in Alyeska Pipeline 
Service Co. v. Wilderness Society, “ the circumstances 
under which attorneys’ fees are to be awarded and the 
range of discretion of the courts in making those awards 
[in suits brought under federal law] are matters for 
Congress to determine.” 23

Plaintiff contends that Congress in this case has fore­
closed an award of fees to the United States “under any 
circumstances.” 24 The putatively preemptive language is 
contained in § 706 (k) of the Civil Rights Act of 1964,25 
which was made applicable to employment discrimination 
suits against the federal government in 1972 by the 
addition to Title VII of § 717(d).26 Section 706(k) pro­
vides as follows:

In any action or proceeding under this subchapter 
the court, in its discretion, may allow the prevailing 
party, other than the [Equal Employment Oppor­
tunity] Commission or the United States, a reason­
able attorney’s fee as part of the costs, and the 
Commission and the United States shall be liable 
for costs the same as a private person.27

Title VII is thus one of numerous statutes “granting or 
protecting various federal rights” 28 which contain ex­
press exceptions to the general rule against recovery of

22 Alyeska, 421 U.S. at 260.
23 Id. at 262.
24 Brief for Plaintiff at 6.
28 42 U.S.C. § 2000e-5 (k) (1976).
28 Equal Employment Opportunity Act of 1972, Pub. L. No. 

92-261, sec. 11, § 717, 86 Stat. 103, 111, 42 U.S.C. § 2000e- 
16(d) (1976).

27 42 U.S.C. § 2000e-5 (k) (1976).
28 Alyeska, 421 U.S. at 260 & nn.33-35 (collecting statutes) ; 

Christianburg Garment Co., 434 U.S. at 415-16 nn.5-7 (col­
lecting statutes).



attorneys’ fees. Much of the law governing fee awards 
under § 706 (k) is settled. Thus, an individual prevailing 
as a plaintiff in an employment discrimination suit, in­
cluding one brought against the federal government, “ or­
dinarily is to be awarded attorney’s fees in all but special 
circumstances.” 29 Also, the provision has been construed 
to permit an award of fees to a private employer who 
prevails, upon a finding that a suit, including one brought 
by the United States, was “ frivolous, unreasonable or 
without foundation, even though not brought in subjective 
bad faith.” 30

Plaintiff naturally concedes that had her suit been one 
against a private employer, the award of attorneys’ fees 
would have been appropriate. Plaintiff argues rather 
plausibly, however, that the language of § 706 (k), allow­
ing fees to prevailing parties “ other than the Commission 
or the United States”  31 may fairly be read as a general 
prohibition of awards in favor of the federal government. 
We do not find the statutory language so unambiguous, 
however. Moreover, nothing in the concededly sparse 
legislative history evinces any intent to extinguish, in 
suits involving the federal government, the historic 
power of equity courts to assess attorneys’ fees against 
a party who has acted in bad faith.32 And we decline to 
infer such an intent, especially when to do so would plainly 
contradict one of the acknowledged purposes of § 706 (k) 
— “to ‘deter the bringing of lawsuits without founda­
tion.’ ” 33

39 Id. at 417 (footnote omitted); Albermarle Paper Co. v. 
Moody, 422 U.S. 405, 415 (1975) ; see also Northcross V. 
Board of Educ., 412 U.S. 427, 428 (1973).

30 Christianburg Garment Co., 434 U.S. at 421.
3142 U.S.C. 2000e-5(k) (1976) (emphasis added).
32 See notes 40-48 and accompanying text infra.
33 Christianburg Garment Co., 434 U.S. at 420 (quoting 

remarks of Senator Lausche, 110 Co n g. R ec. 13668 (1964)).



B. Congressional Intent Governing § 706 (k)

The parties have fashioned predictably differing argu­
ments from four sorts of evidence of what Congress may 
be supposed to have intended. We review in turn (1) the 
language of § 706(k), (2) its legislative history and that 
of comparable provisions, (3) probable inferences from 
the structure of the Civil Rights Act of 1964, and (4) 
the apparent purposes underlying the fee provision.

1. Statutory Language

Until Title VII was amended by the Equal Employ­
ment Opportunity Act of 1972, it did not permit employ­
ment discrimination suits against the federal government. 
Consequently, prior to the amendments, the United States 
(or the Equal Employment Opportunity Commission) 
could appear in a Title VII suit only as a plaintiff, bring­
ing or intervening in a suit on behalf of a private or non- 
federal government employee.34 These were the only in­
stances to which the language affecting fee recovery by 
the U.S. could apply. And in these instances, if the 
United States or the Commission prevailed in the suit, it 
clearly could not recover attorneys’ fees under § 706 (k) 
in the same manner as other prevailing plaintiffs could.

Federal employment discrimination was proscribed by 
§ 717 added to the Civil Rights Act of 1964 35 by a 1972 
amendment.38 Section 717(c)37 permits an aggrieved em­
ployee to file a civil action in a federal court seeking

34 See Civil Rights Act of 1964, Pub. L. No. 88-352, tit. VII, 
§§ 706, 707, 78 Stat. 259, 261 (current version at 42 U.S.C. 
§§ 2000e-5, 2000e-6 (1976)).

35 42 U.S.C. § 2000e-16 (1976).
36 See note 26 supra.

37 42 U.S.C. § 2000e-16(c) (1976).



review of his claim of employment discrimination after 
relief has been denied in the agency which is alleged 
to have discriminated. Section 706(f) through (k), gov­
erning various precedural matters, were incorporated by 
§ 717(d)38 “ as applicable” to suits by federal employees. 
Section 706 (k) is, of course, the attorneys’ fees provision 
with which we are concerned.

Plaintiff, somewhat indifferent to the manner in which 
the various provisions were accreted, argues that their 
intended operation is apparent. Plaintiff supposes ini­
tially that the United States was prevented by § 706 (k) 
from recovering fees as a plaintiff “under any circum­
stances.” From this plaintiff concludes that § 706 (k) , 
made applicable to suits against the federal government 
by § 717 (d ) , likewise forecloses an award on behalf of the 
United States as a defendant in all cases. We have al­
ready noted that plaintiff’s construction is linguistically 
plausible. It is not, however, the only sensible reading 
of the statute; nor is it the one we suppose most har­
monious with the purposes of the Act.

The government, of course, takes a quite different posi­
tion. It suggests that the language prohibiting awards to 
the United States may apply only where the government 
is a plaintiff, the circumstance contemplated when the 
language was composed in 1964. Thus the government 
opines that § 706 (k) may in fact affirmatively authorize 
the award of attorneys’ fees to the United States as a 
defendant in the same manner as it authorizes the award 
of fees to a prevailing defendant in the private sector. 
Whether the language of § 706 (k) may be parsed in the 
somewhat extraordinary manner suggested by the gov­
ernment, the instant case does not require us to decide. 
We hold only, as the government alternatively argues, 
that § 706 (k) does not preclude a court from awarding

88 42 U.S.C. § 2000e-16 (d) (1976).



11 a
the United States its attorneys’ fees when it has been 
sued in bad faith.

We think the excepting language, supposing it ap­
plicable to the federal government as a defendant, was 
meant to exclude the United States only from the sta tu ­
tory allowance of fees, governed by the expansive “pre­
vailing party” standard, and to leave undisturbed the 
narrow equitable exception in cases of bad faith.39 This 
construction appears to us both unstrained and ultimately 
more consistent with the purposes of § 706 (k) than that 
advanced by plaintiff.

39 Although it might have been rational for Congress in 
1972 to have concluded that the United States as a defendant 
should be entitled to its attorneys’ fees in the same manner 
as other defendants, it is improbable that it would have 
chosen to do so through the language of §§ 717(d) and 
706(k). Section 717(d) incorporates § 706 (k) “as applicable” 
to suits against the federal government. It js undisputed 
that § 706 (k) applies to such suits at least insofar as it per­
mits awards to prevailing plaintiffs. We think it fairly im­
plausible that Congress intended through § 717 (d) to incor­
porate all of § 706(k) save for the phrase “other than the 
. . . United States.” Rather, a more sensible reading of the 
sections is that when the federal government is a defend­
ant, it is a “party” within § 706 (k) and as such is excluded 
from the statutory recovery of fees just as it is as a plaintiff. 
We are especially hesitant to reach a contrary construction 
which, having no warrant in the text, is not compelled by an 
unambiguous Congressional purpose. No such purpose is 
apparent.

Finally, it may be argued that if the same standard applies 
to the federal government, whether a plaintiff or defendant, 
it should in both cases preclude recovery on equitable grounds. 
Although in some circumstances we might conclude that a 
statutory provision for attorneys’ fees had preempted pre­
existing equitable grounds, see Christianburg Garm ent Co., 
434 U.S. at 419 n.13; cf. B yram  Concretanks, Inc. v. W arren  
Concrete Prods. Co., 374 F.2d 649, 651 (3d Cir. 1967), we do 
not think that is this case, see pp. 15-17 infra.



12 a

The parties are in agreement that pertinent legisla­
tive history is sparse and fairly unenlightening. Some­
what relevant is a colloquy between Senator Dominick 
and Senator Javits in the course of debate on the 1972 
amendments. Senator Dominick had submitted an amend­
ment to the pending Senate bill which, inter alia, would 
have struck the provision which became § 717(d), in­
corporating § 706(k). Senator Javits, in turn, intro­
duced an amendment striking that portion of the Domi­
nick amendment, which Senator Dominick accepted.*0 It

*° Senator Javits, offering the amendment to strike, said:
If you refer to those provisions, insofar as they are 

applicable, you find that the main point is that where the 
complainant is suing in court, you have arrived at the 
stage of the proceeding where he has that remedy, and 
in such circumstances as the court may deem just, the 
court may appoint an attorney for the complainant and 
authorize the commencement of the action without the 
payment of fees, costs, or security.

Mr. President, that is a very important right for the 
individual, just as it is a very important right for a Gov­
ernment employee, for the individuals involved are not, 
in the main, high salaried, in that those who would be 
likely to sue in these equal employment opportunity cases 
are fairly modest people.

So I see no reason, Mr. President, why in the one case, 
to wit, that of the normal complainant who is not a Gov­
ernment employee with a remedy in court, that com­
plainant shall be the beneficiary of a court-appointed 
lawyer, and not have to pay these costs or securities, and 
why this provision should be stricken out when it comes 
to a Federal Government employee who has to sue and 
is also a person, because that is the generality of the 
cases, of modest means.

So the motion which I make is to strike out the pro­
vision of the Dominick amendment which would withdraw 
that opportunity from a Government employee. I do not 
see how we can very well make that distinction.

[Continued]

2. Legislative H istory



appears from the exchange, as we observed in Parker 
V. Califano,41 that both Senators were concerned that 
federal employees be assured certain assistance afforded 
private litigants, including the customary award of at­
torneys’ fees to the prevailing party. That Congress in­
tended to permit prevailing federal employees to recover 
their attorneys’ fees is unexceptionable. The colloquy 
sheds little light, however, on the matter sub judice, ex­
cept insofar as the Senators, aware that § 706 (k) ap­
plied to suits against the federal government, may be 
charged with intending one or another somewhat probable 
construction of the statutory language. Thus we are 
again remitted to linguistic argument, and we have already 
concluded that the text is not dispositive. In sum, we 
think it fair to say that the 1972 legislative history is

40 [Continued]
118 Cong. Rec. at 954 (1972).
Senator Dominick accepted the amendment and stated:

Mr. President, I want to say for the record that this 
particular amendment language was included, as the spe­
cific provisions of the bill deal only with Federal em­
ployees for whom we had a different procedure. They 
go through their own agencies and then they have the 
right as a Federal employee to go to the civil service 
board or to go through the Federal court system. The 
amendment to strike the language was included because 
the language to be struck was thought to be inappropriate 
to the specialized grievance procedures adopted in com­
mittee for Federal employees. A closer reading of sec. 
706(g) through (w) [the provisions that would have 
been stricken by the proposed Dominick amendment] 
does indicate that language for providing attorney’s fees 
and waiving court costs are applicable.

Therefore, I have no objection to the Senator’s amend­
ment, and if he would want to withdraw his yea and nay 
request, that would be fine with me, and we can accept 
the amendment.

118 Cong. Rec. 956 (1972).

41561 F.2d 320, 335-36 (D.C. Cir. 1977).



unilluminating. We observe merely that our construc­
tion is not inconsistent with what little history there 
is.4*

More helpful to plaintiff’s argument are portions of 
the legislative history of the Civil Rights Attorney’s Fees 
Awards Act of 1976.42 43 The Act permits the courts to 
award attorneys’ fees to the “prevailing party, other than 
the United States” in suits brought under a number of 
statutes,44 at least one of which contemplates suits against 
the United States.45 46 The Senate Report states that the 
Act “ follows the language of Title II and VII of the 
Civil Rights Act of 1964” and that “ [i]t is intended that 
the standards for awarding fees be generally the same 
as under the fee provisions of the 1964 Civil Rights 
Act.” 48 Moreover, the bill’s sponsors in the House of 
Representatives apparently thought not only that the 
rule in the 1976 statute was the same as that in the 
earlier acts, but also that under that rule, “ the United 
States is excluded from any attorneys’ fees under any 
thesis or under any hypothesis.” 47

42 For a review of such legislative history as exists, see 
P arker V. Califano, 561 F.2d at 333-39.

43 Pub. L. No. 94-559, 90 Stat. 2641, 42 U.S.C. § 1988.
44 The Act permits an award of attorney’s fees to the “pre­

vailing party” in actions brought under seven specific sections 
of the United States Code: 42 U.S.C. §§ 1981, 1982,1983, 1985, 
1986, & 2000 d. et seq .; and 20 U.S.C. § 1681 et seq. See 42 
U.S.C. § 1988 (1976) ; H. Rep. No. 94-1558, 94th Cong., 2d 
Sess. 4 (1976). .

48 Civil Rights Act of 1964, Pub. L. No. 88-352, tit. VI, 78 
Stat. 252, 42 U.S.C. § 2000 d. et seq. (1976); Adam s V. Rich­
ardson, 480 F.2d 1159 (D.C. Cir. 1973).

46 S. R ep. No. 94-1011, 94th Cong., 2d Sess. 2, 4 (1976).
47 122 Co n g. Rec. H12152 (daily ed. 1 Oct. 1976) (remarks

of Congressman McClory) ; see also id. at H12155 (remarks of 
Congressman Drinan).

14a



Although the cited passages from the legislative his­
tory of the 1976 Act deserve some weight “ ‘as a sec­
ondarily authoritative expression of expert opinion,’ ” 48 
they are not nearly as persuasive as would be statements 
made contemporaneously with the enactment of the statute 
we are construing. Consequently although the question 
is not free of difficulty, we are not convinced by these 
casual subsequent remarks that Congress, acting in 1972, 
intended to foreclose an award of attorneys’ fees to the 
United States in such cases as this.

3. Inferences from the Structure of Title VII

Plaintiff advances a second, somewhat different theory 
of preemption relying on the Supreme Court’s decision 
in Fleischmann Distilling Corp. v. Maier Brewing Co/'3 
In Fleischmann the Supreme Court held that § 35 of the 
Lanham A ct40 precluded an award of attorneys’ fees as 
a separate element of recovery in a suit for trademark 
infringement. The Court reasoned that, since § 35 
“meticulously detailed the remedies available to a plaintiff 
who proves that his valid trademark has been infringed,” 
Congress must have intended the express remedial pro­
visions of § 35 “ to mark the boundaries of the power to 
award monetary relief in cases arising under the Act.” 41 
Plaintiff contends that, whether or not the legislative his­
tory expressly discloses any relevant intent, the reason­
ing of Fleischmann dictates a similar result in this case. 
Recalling for her minor premise that the Supreme Court 
in Brown v. General Services Administration said that 
Title VII’s “ careful blend of administrative and judicial

‘a Parker V. Califano, 561 F.2d at 339 (quoting Bobsee Corp. 
V. United States, 411 F.2d 231, 237 n. 18 (5th Cir. 1969)).

"386 U.S. 714 (1967).
50 15 U.S.C. § 1117 (1976).
n Fleischmann Corp., 386 U.S. at 719, 721.

15a



lfc
enforcement powers”  52 were intended to be “ exclusive and 
pre-emptive,” 53 plaintiff concludes that the question of 
attorneys’ fees is governed exclusively by § 706 (k).

Plaintiff’s reliance on Fleischmann appears somewhat 
curious. At issue in Fleischmann was the judge-made 
rule permitting an award of attorneys’ fees upon a show­
ing that a trademark had been infringed deliberately or 
willfully. The practice, though supported by some ju­
dicial authority, was not among the customary exceptions 
to the American rule. The Supreme Court held merely 
that it would not find an implied exception under a 
statute which, containing no attorneys’ fees provision 
whatsoever, otherwise exhaustively prescribed the in­
tended relief. The instant controversy is quite different. 
We are required to decide not whether to create a novel 
exception, but rather whether Congress intended to abro­
gate a thoroughly settled one. Setting to one side the 
effect of § 706(k), we are most reluctant to find that 
Congress has by implication eliminated sound preexisting 
grounds for an award of attorneys’ fees.54 Moreover, not 
only is Title VII’s open-ended provision for any “other 
equitable relief as the court deems appropriate” 55 unlike 
the “meticulously detail [ed]” remedies under the Lanham 
Act,58 but we doubt that even precisely detailed affirma­
tive relief logically implies anything at all about the 
court’s inherent power to award fees to a harassed 
defendant.

“ 425 U.S. 820, 833 (1976).
53 Id. at 829.
54 Our reluctance is akin to the presumption against con­

struing statutes to have abrogated by implication common law 
rights. See, e.g., Isbrandtsen Co. V. Johnson, 343 U.S. 779, 783 
(1952) ; St. Regis Paper Co. v. United States, 368 U.S. 208, 
218 (1961); See generally, 3 J. Su t h e r l a n d, Statutes and 
Statutory Construction § 61.01, at 41-42 (4th ed., Sands, 
ed. 1974).

“ 42U.S.C. §2000e-5(g) (1976).
See also Hall v. Cole, 412 U.S. at 10; Mills v. Electric 

Auto-Lite, 396 U.S. at 391.



The Supreme Court’s recent opinion in Christianburg 
Garment Co. v. EEOC confirms our view that, at least 
apart from the prohibition which plaintiff finds in the 
language of § 706 (k) , the remedial scheme of Title VII 
did not preempt the customary exceptions to the Ameri­
can rule. There the Court said:

It seems clear, in short, that in enacting § 706 (10 
Congress did not intend to permit the award of 
attorney’s fees to a prevailing defendant only in a 
situation where the plaintiff was motivated by bad 
faith in bringing the action. As pointed out in 
Piggie Park [390 U.S. 400 (1968)], if that had 
been the intent of Congress, no statutory provision 
would have been necessary, for it has long been 
established that even under the American common- 
law rule attorney’s fees may be awarded against 
a party who has proceeded in bad faith.57

Thus plaintiff’s preemption argument derives no support 
from Fleischmann, and we are once again thrown back 
upon the language of § 706(k), which we find incon­
clusive.

4. The Purposes of § 706 (k)

Finally, we believe an award of attorneys’ fees in this 
case is wholly consistent with the purposes of § 706 (k). 
The Supreme Court had occasion in Christianburg to re­
view those purposes, which are vaguely disclosed by what 
little history there is from 1964. It said:

The only specific reference to § 706 (k) in the leg­
islative debates indicates that the fee provision was 
included to “make it easier for a plaintiff of lim­
ited means to bring a meritorious suit.”  [5S] During 
the Senate floor discussions of the almost identical * 58

”  434 U.S. at 419.
58 Remarks of Senator Humphrey, 110 Cong. Rec. 12724 

(1964).



attorney’s fee provision of Title II, however, several 
Senators explained that its allowance of awards to 
defendants would serve “to deter the bringing of law­
suits ‘without foundation,” [89J “ to discourage friv- 
lous suits,” (6°! and “ to diminish the likelihood of 
unjustified suits being brought.”  [61) If anything can 
be gleaned from these fragments of legislative his­
tory, it is that while Congress wanted to clear the 
way for suits to be brought under the Act, it also 
wanted to protect defendants from burdensome liti­
gation having no legal or factual basis.83

Of course, the Court in Christianburg was not constru­
ing the language which is here alleged to foreclose a 
recovery by the government. Christianburg dealt with 
the content of the “prevailing party” standard whose 
purposes are less directly relevant to this case than the 
purposes, were they discernible, of the alleged exception 
for the federal government. Still, inasmuch as the lan­
guage and history of the exception are inconclusive, it 
is sensible that the policies framing the section generally 
should inform as well the construction of its exceptions.

The possibility of tension between the purposes de­
scribed in Christianburg is apparent. The policy ques­
tion in this case is, simply stated, whether the social 
benefits of deterring vexatious suits against the govern­
ment outweigh the social costs arising from the risk that 
some meritorious suits will be discouraged as well. Plain­
tiff argues that the Congress in 1972, acutely aware of 
both the pervasiveness of discrimination in federal em­
ployment and inadequacy of existing remedies, could not

48 Remarks of Senator Lausche, id., at 13668.
40 Remarks of Senator Pastore, id., at 14214.
41 Remarks of Senator Humphrey, id., at 6534.
42 Christianburg Garm ent Co., 434 U.S. at 420 (original 

notes renumbered and reproduced as notes 58-61 supra).



have intended to create the “deterrent of the prospect of 
liability for fees if the employee loses.” 63 Such a deter­
rent is said to be particularly inappropriate inasmuch as 
the whole initiative for judicial enforcement of Title VII 
against the federal government lies with the private in­
dividual. The EEOC and the attorney general are not 
permitted to proceed against the government as they are 
against other employers.64 Thus the possibility that the 
prosecution of meritorious claims might be “chilled” by 
the likelihood of their being mischaracterized as in bad 
faith is thought especially pernicious.

We think plaintiff’s arguments are largely overdrawn. 
The alleged chill on potentially valid litigation would 
occur only if government employees with meritorious 
Title VII suits believed that courts were likely so to 
mischaracterize those suits as to find them not only with­
out merit, but wholly vexatious as well. We do not be­
lieve either that courts are likely so thoroughly to mis­
apprehend the character of claims or that prospective 
plaintiffs are likely to expect such errors. The Supreme 
Court in Christianburg apparently did not suppose there 
would be an unacceptable chill if prevailing defendants 
in the private sector were permitted to recover attorneys’ 
fees upon a far lesser showing than bad faith (i.e., that 
the suit was “ frivolous, unreasonable or without founda­
tion.” )65 Plainly, that possibility is considerably more 
remote here.

Of course, a court must still be wary of indulging 
post hoc characterizations which neglect the apparent 
prospects of a claim before trial. The cautionary language 
of the Court in Christianburg pertains a fortiori in such 
cases as this:

83 Brief for Plaintiff at 21.
64 Com pare 42 U.S.C. § 2000e-16(c) w ith  42 U.S.C. § 2000e- 

5 (f).
65 Christianburg Garm ent Co., 434 U.S. at 421.



20a
In applying these criteria, it is important that a 

district court resist the understandable temptation 
to engage in post hoc reasoning by concluding that, 
because a plaintiff did not ultimately prevail, his ac­
tion must have been unreasonable or without founda­
tion. This kind of hindsight logic could discourage 
all but the most airtight claims, for seldom can a 
prospective plaintiff be sure of ultimate success. No 
matter how honest one’s belief that he has been the 
victim of discrimination, no matter how meritorious 
one’s claim may appear at the outset, the course of 
litigation is rarely predictable. Decisive facts may 
not emerge until discovery or trial. The law may 
change or clarify in the midst of litigation. Even 
when the law or the facts appear questionable or 
unfavorable at the outset, a party may have an en­
tirely reasonable ground for bringing suit.66

Thus we contemplate that courts will be appropriately 
circumspect in finding a party to have acted in bad faith. 
We doubt that such a finding may be supported without 
some proof of malice entirely apart from inferences 
arising from the possibly frivolous character of< a par­
ticular claim. Only in this manner would we assure a 
sensible distinction between the contents of the equitable 
and statutory exceptions to the American rule. If, as 
seems probable, Congress chose to exclude the United 
States from the statutory “prevailing party” recovery in 
all cases, we are obliged to observe closely such a dis­
tinction.

Satisfied, then, that a recovery by the United States 
in this case will not embarrass the policy of enforce­
ment, we are naturally more certain that it will help 
to discourage those few suits whose only motivation is 
harassment. The Court recognized in Christianburg that 
though Congress intended that individuals would fully 
vindicate the antidiscrimination policy of Title VII, still

“  434 U.S. at 421-22.



21a
“ it is equally certain that Congress entrusted the ulti­
mate effectuation of that policy to the adversary judicial 
process.” 67

It is the need to preserve the integrity of the judicial 
process which ultimately, in the face of inconclusive statu­
tory language and legislative history, convinces us that 
Congress would not have wished to foreclose recovery 
here. Litigation brought merely to harass is a wholly 
unredeemed burden and affront to the judiciary. While 
its unfairness when the defendant is the United States 
is somewhat more diffuse than the imposition on a pri­
vate defendant in the same circumstances, it is not more 
sufferable. We think it unlikely, in light of the purposes 
of the “bad faith”  exception,68 that Congress intended 
through § 706 (k) to remove the court’s discretion to 
award attorneys’ fees in such circumstances as these. 
When, as here, there is a solidly grounded finding by the

w Id . at 419.
88 We are somewhat persuaded in our view by the analogous 

grounds for recovery of fees contained in Federal Rule of Civil 
Procedure 37. Rule 37 authorizes a court in certain circum­
stances to assess attorneys’ fees against a party who has 
abused the discovery process. The theory is essentially the 
same as that in this case. Fair and liberal discovery is ele­
mentary to civil litigation. To maintain the process, the 
award of fees operates as a sanction, deterring abusive prac­
tices and incidentally compensating the aggrieved party for 
unnecessary costs. We doubt it would be argued seriously 
that § 706(k) preempts a recovery of fees under Rule 37. 
Such a construction would not appear sensible. Rule 37 has a 
narrow purpose which can be accommodated easily within 
the framework of §706(k). Moreover, one would expect 
Congress intended as much. Likewise, we think it unlikely 
that Congress intended through § 706 (k) to foreclose an 
award of fees in the exceptional case in which the whole suit 
is pursued in bad faith. As with Rule 37 it is probable, in 
light of the purposes of the exception, Congress would have 
left it alone when it adopted § 706 (k ).



trial court of bad faith on the part of the plaintiff, a fact 
finding which this court has no reason to upset, we have 
no intention of sanctioning bad faith in judicial proceed­
ings by denying the defendant government its established 
right to recover attorneys’ fees as a deterrent to bad 
faith litigants.69

Affirmed.

88 Sufficient abuse of the judicial process could overwhelm 
the courts and destroy the judicial system as an effective 
branch of government. This, and any discernible degree there­
of, such as the bad faith litigation found here, the courts have 
a constitutional duty to prevent. By our interpretation of 
the statute involved we have found here no intent of Congress 
to permit any abuse of the judicial process.



23a

OPINION OF THE DISTRICT COURT, 

AUGUST 22, 1977.

UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA

No. 76-1156

BARBARA N. COPELAND,

P l a i n t i f f ,

v.

SAMUEL R. MARTINEZ,

Defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This  matter  came on f o r  t r i a l  b e f o r e  t h i s  
Court on June 27, 1977. Having considered a l l
the evidence,  both test imonial  and documentary, 
the Court enters the fo l lowing Findings o f  Fact 
and Conclusions o f  Law.

Findings o f  Fact
1. P l a i n t i f f  is a black female c i t i z e n  of  

the United States who resides  in the D is t r i c t  o f  

Columbia.



-  24a -

2. Defendant i s  the D i r e c t o r  and c h i e f  

e x e c u t i v e  o f f i c e r  o f  the Community S e r v i c e s  
Administration (CSA), an agency o f  the Federal 

Government.
3. P l a i n t i f f  is  employed as a GS-11 Program 

S p e c ia l i s t  in the O f f i c e  o f  Human Rights (OHR) o f  
the CSA.

4. P l a i n t i f f  is  not a c o l le ge  graduate and 
h o ld s  no degree  from an i n s t i t u t i o n  o f  h ig h e r  

education,  although she has a number o f  co l lege  
c r e d i t s .

5. OHR i s  the CSA component which dea ls  
with Equal Employment Opportunity (EEO) programs, 

both within and outs ide the CSA.
6. From Apri l  1, 1975, through the end o f  

c a le n d a r  year  1976, C a r los  Ruiz was A s s o c i a t e  
Director  for  Human Rights o f  the CSA. In that 
capac ity ,  Mr. Ruiz administered OHR and served as 
p l a i n t i f f ' s  supervisor.

7. P l a i n t i f f  began her term o f  f e d e r a l  
employment as a GS-5 C lerk  T y p is t  in February 
1969 with the O f f i c e  o f  Equal Opportunity,  the 
p r e d e c e s s o r  agency o f  CSA. In February 1970, 
p l a i n t i f f  was promoted to Secretary Typist GS-6. 
P l a i n t i f f  was promoted to Administrative Assistant  

GS-7 in Apri l  1971. In January 1975, p l a i n t i f f  
was r e t r o a c t iv e ly  promoted to Program Assistant  
GS-9 e f f e c t i v e  July 1973 and to Program S pec ia l i s t



25a-

GS-11 e f f e c t i v e  July 1974, the p o s i t i o n  she now 
h o ld s .

8. P l a i n t i f f ' s  las t  two grade promotions 
resu lted  from her f i l i n g  a grievance and complaint 
not involv ing race or sex d iscr imination.

9.  P l a i n t i f f  f i l e d  no l e s s  than nine  
grievances and EEO complaints against Carlos Ruiz 
when he was her superv isor .

10. Throughout her employment w ith  the 
Federal Government, p l a i n t i f f  had f i l e d  numerous 
grievances and EEO complaints in addit ion  to  the 
one presently  before  th is  Court.

11. P l a i n t i f f  has cons is ten t ly  used gr iev ­
an ces ,  t h r e a t s  o f  f i l i n g  g r i e v a n c e s ,  'EEO com­
p l a i n t s ,  t h r e a t s  o f  EEO c o m p la in t s ,  and the 
EEO process in general to  harass her supervisors 
and to  improperly further her career and enhance 
her o f f i c e  status.

12. During the e n t i r e  p e r i o d  r e l e v a n t  t o  
th is  case,  blacks comprised 80 percent o f  the OHR 
s t a f f  and females outnumbered males by a r a t i o  

o f  two to one.
13. While he headed OHR, Carlos Ruiz pro­

moted mostly black females.
14a. There i s  no c r e d i b l e  e v id e n c e  that  

C ar los  Ruiz denied  p l a i n t i f f  a c a r e e r  ladder  
promotion to Program S p ec ia l i s t  GS-12 because o f  
her race  a n d /o r  sex  or  as a r e p r i s a l  f o r  her 
f i l i n g  d i s c r i m i n a t i o n  com pla in ts  p r e v i o u s l y .



26a

Rather,  the e v id e n c e  shows that  Mr. Ru iz ,  o b ­
j e c t i v e l y  and without regard to  i l l e g a l  considera­

t io n s ,  concluded that the career ladder fo r  p la in ­
t i f f ' s  p o s i t i o n  ended at the GS-11 l e v e l ,  a 
conc lusion  which was la ter  supported by the CSA 
Director  o f  Personnel based on an o b je c t iv e  and 
independent desk audit of  p l a i n t i f f ' s  p o s i t io n .

b.  The audit o f  p l a i n t i f f ' s  p o s i t i o n  was

independent of  OHR and t o t a l l y  in accordance with 
p ro ce d u re s  e s t a b l i s h e d  by the C i v i l  S e r v i c e  

Commission.
15. There i s  no c r e d i b l e  e v id e n c e  that

C a r los  Ruiz den ied  p l a i n t i f f  the f i r s t  merit  
promotion o f  which she complains because o f  her 

race or sex or as a r e p r i s a l  for  f i l i n g  d is c r im i ­
nation complaints previous ly .  Rather, the merit 
promotion announcement resulted  in no s e le c t i o n  
when Mr. Ruiz, o b j e c t i v e l y  and without regard to  

i l l e g a l  cons iderat ions ,  asked fo r  a wider search 
f o r  c a n d id a t e s  because  the q u a l i f i e d  l i s t ,  on 

which p l a i n t i f f  was rated lower than the other 
candidates,  contained only two names, a pract ice  

that was common when q u a l i f i e d  l i s t s  contained 
less  than three names.

16a. There i s  no c r e d i b l e  e v id e n c e  that  
C ar los  Ruiz denied  p l a i n t i f f  the second merit  
promotion o f  which she complains because o f  her 
race  or sex  or as a r e p r i s a l  f o r  her f i l i n g  

d iscr imination  complaints previous ly .  Rather, Mr.



-  27a

Ruiz se le c ted  a white female because she was rated 

highest on the q u a l i f i e d  l i s t  on which p l a i n t i f f  
was rated lowest.

b.  With respect to  the second merit promo­
t io n  o f  which p l a i n t i f f  complains,  Mr. Ruiz,  in 

the supervisory evaluation which was factored into 
the q u a l i f i e d  l i s t  r a t i n g ,  had r a t e d  a b la c k  

female higher than the success fu l  white female.
17. There i s  no c r e d i b l e  e v id e n c e  that  

C ar loz  Ruiz d en ied  p l a i n t i f f  the t h i r d  merit  
promotion o f  which she complains because o f  her 

ra ce  or  sex or  as a r e p r i s a l  f o r  her  f i l i n g  
d iscr imination  complaints previously .  Rather, Mr. 

Ruiz se le c ted  a black female because she was rated 
highest on the qua l i f i e d  l i s t  on which p l a i n t i f f  
was rated lowest.

18. Carlos  R u i z '  d e c i s i o n  r e g a r d in g  each 
meri t  promotion o f  which p l a i n t i f f  complains was 
b lind  as to race ,  sex,  and p l a i n t i f f ' s  h is to ry  o f  

f i l i n g  complaints and gr ievances;  when Mr. Ruiz 
made a s e le c t i o n ,  he se lected  the highest rated o f  

the q u a l i f i e d  c a n d id a te s  s o l e l y  because  the 
candidate was rated highest ,  fo l lowing h is  un­
err ing  p rac t i ce  and i r resp ec t ive  o f  his  personal 
v ie w s ;  when he asked f o r  a wider  search ,  he 
f o l l o w e d  a common p r a c t i c e  w i thout  regard  to  
i l l e g a l  cons iderat ions .



-  28a

19a. A b l a c k  female e x p e r i e n c e d  p e rso n n e l  
o f f i c i a l  compiled the q u a l i f i e d  l i s t s  on which 

C a r los  Ruiz based h i s  d e c i s i o n s  r e g a r d i n g  the 
merit promotions of  which p l a i n t i f f  complains.  

She gave each candidate scores in various ca te ­
g o r i e s  based  on her  rev iew  o f  the c a n d i d a t e ' s  

f ederal  employment app l icat ion  (Standard Form 171) 
and superv isor 's  evaluat ion. The superv isor 's  
evaluation counted for  a maximum o f  15 points out 
o f  100 po ints .

b.  Carlos Ruiz was the supervisor  of  each 
candidate rated by the personnel o f f i c i a l .

c .  Carlos Ruiz rated p l a i n t i f f  "not ready" 
for  promotion in his  supervisory evaluation of  

h e r .
20. There is  no cred ib le  evidence to support 

p l a i n t i f f ' s  a l l e g a t i o n s  that  she was denied  
t r a i n i n g  because  o f  her  ra ce  or  sex o r  as a 

re p r i s a l  f o r  her f i l i n g  d iscr iminat ion  complaints 
previous ly .  Rather, p l a i n t i f f  was denied training 
because o f  the heavy workload of  ORR, because o f  
her c a p a b i l i t i e s  or lack thereo f ,  because of  her 
att i tude  toward her work and supervisors ,  because 
o f  budget l im ita t ion s ,  or because a l l  requests for  
indiv idual training were being denied, without 
regard to  i l l e g a l  cons iderat ions .

21. There is no c red ib le  evidence to support 
p l a i n t i f f ' s  a l legat ions  that she was denied the 

opportunity to  perform at her f u l l  potent ia l  and



-  29a -

harassed by her supervisors  because o f  her race 
and sex or as a rep r isa l  fo r  her f i l i n g  d i s c r im i ­

nation complaints previous ly .
22. P l a i n t i f f ' s  t e s t im ony  c o n t a in e d  no 

e v id e n c e  o f  i l l e g a l  d i s c r i m i n a t o r y  treatment  
o t h e r  than her  b a ld ,  a b s t r a c t ,  and r e p e t i t i v e  
a l leg a t ions  of  the same.

23. The testimony o f  p l a i n t i f f ' s  two w i t ­
nesses other than h e r s e l f  contained absolutely  
no evidence of  sex d iscr im inat ion ;  one witness 

spoke in  a b s t r a c t  terms o f  r e p r i s a l ,  and both  
spoke o f  r a c e  d i s c r i m i n a t i o n  in  such terms.

24. Both o f  p l a i n t i f f ' s  nonparty witnesses 
were shown to  be intensely  biased against Carlos 

Ruiz. Both had f i l e d  several  individual  g r i e v ­
ances and EEO complaints against Ruiz.  One, 0. 
Marion Jones ,  was shown to  have d es ig n s  on 
Ruiz'  job as Associate  Director ,  a fac t  he f i r s t  
denied but la ter  admitted.

25. The tes t im ony  o f  p l a i n t i f f  and Mr. 

Jones ,  t h e i r  demeanor on the stand ,  and the 
documentary evidence submitted by both p l a i n t i f f  

and defendant demonstrated that both were com­
p l e t e l y  i n c r e d i b l e  as w i t n e s s e s .  One f a c t o r  

a f f e c t i n g  the Court 's  assessment o f  the ir  c r e d i ­
b i l i t y  was the showing and admission by p l a i n t i f f  

and Mr. Jones that they had fabr icated  and sub­
mitted a supervisory rat ing o f  p l a i n t i f f  by Mr. 
Jones m i s r e p r e s e n t i n g  that  Mr. Jones was her



30a

superv isor  and that p l a i n t i f f  had misrepresented 
on a Standard Form 171 that Jones, rather  than 

Carlos Ruiz, was her superv isor .
26. To the e x te n t  that  the tes t im ony  o f  

p l a i n t i f f ' s  nonparty  w i tn e ss  o t h e r  than Mr. 
Jones was re levant,  i t  was not c red ib le .

27. The testimony o f  defendant 's  witnesses 
was en t i re ly  c red ib le  and supported, complemented, 
and corroborated by the testimony o f  other w i t ­
nesses and by documentary evidence.

28. The evidence demonstrates conc lus ive ly  
that p l a i n t i f f  and Mr. Jones in tent iona l ly  con­
ducted  a v e n d e t t a  ag a in s t  Mr. Ruiz and o th e r  
members o f  the CSA management, h a r a s s in g  them 

by v i r t u a l l y  every means avai lab le  including use 
o f  the  EEO p r o c e s s  to  b r in g  b a s e l e s s  charges  

o f  d iscr imination.
29. This c i v i l  act ion  is  an integral  part of  

p l a i n t i f f ' s  vendetta against Mr. Ruiz and the CSA 
management; i t  is  the culmination o f  a long ser ies  

o f  in ten t iona l ly  v in d i c t iv e  and abusive act ions 
taken to  harass her superv isors .

30. P l a i n t i f f ' s  a l legat ions  of  d iscr imina­
t ion  are baseless  and f r iv o lo u s .

31. P l a i n t i f f  a c ted  v e x a t i o u s l y ,  m a l i ­
c i o u s ly ,  and in bad fa ith  in bringing and main­
tain ing th is  act ion  and has in tent iona l ly  abused 
the j u d i c i a l  process .



-  31a-

CONCLUSIONS OF LAW

1. P l a i n t i f f  f a i l e d  t o  e s t a b l i s h  even a 

prima fa c ie  case of  d iscr iminat ion  based on sex 
a n d /o r  r a c e  or  as to  r e p r i s a l .  The de fendant  

amply demonstrated that no d iscr imination  because 
o f  race or sex and no rep r isa l  were involved in 

the treatment o f  p l a i n t i f f .  As a r e su l t ,  the case 
must be dismissed with judgment for  the defendant.  

See McDonnell-Douglas Corp. v.  Green, 411 U.S. 792 
(1973) ;  Hackley v.  Roudebush, 520 F.2d 108 (D.C. 

Cir.  1975).
2. Moreover, the Court having found that 

p l a i n t i f f  has brought this  act ion  in bad fa i th ,  
with  an in t e n t  to  harass  her  s u p e r v i s o r s  and 
general ly  vex the defendant through her abusive 
c o n d u c t ,  and that  such a c t i o n  c o n s t i t u t e s  an 
i n t e n t i o n a l  abuse o f  the j u d i c i a l  p r o c e s s  by 
p l a i n t i f f ,  the Court awards defendant his  costs  of  
th is  l i t i g a t i o n  including reasonable attorneys '  
f ees .  The Court recognizes  that attorneys '  fees 
are not o r d i n a r i l y  r e c o v e r a b l e  by p r e v a i l i n g  
part ies  in American l i t i g a t i o n . —̂  However, the 
the instant case f a l l s  well  within the h i s t o r i ­
c a l l y  es tab l ished  exception to  the American Rule

1/ Alyeska Pipel ine Service Co. v.  Wilderness 
Soc 'y ,  421 U.S. 240, 247, 262 (1975);  Fleischman 
D i s t i l l i n g  Corp. v.  Maier Brewing Co. ,  386 U.S. 
714 (1967).



-  32a

in that "the los ing  party [here] has 'acted in bad 

fa i t h ,  vexa t ious ly ,  wantonly [and] for  oppressive 
r e a s o n s ' . "  See Alyeska  P i p e l i n e  Serv.  Co. v . 

Wilderness S o c ' y , 221 U.S. 240, 259 (1975),  quot­
ing  F. D. Rich Co. Inc. v.  United States ex r e l

2 /Indus. Lumber Co. ,  417 U.S. 166, 129 (1974) .— 
Further, the Court notes that th is  same standard 
has been applied (and fees  awarded thereunder) to  
an ap p l i ca t ion  fo r  a t to rney 's  fees  o f  a preva i l ing  

t i t l e  VII defendant in the private  sector .  See 
Carrion v. Yeshiva Univ. , 535 F.2d 722 (2nd Cir.  
197 6 ) ;  U.S. S t e e l  Corp. v .  U . S . ,  517 F.2d 359 
(3rd Cir.  1975). T i t l e  VII applies  equally to  the 

publ ic  se c tor  as the pr ivate  se c to r ;  the .rights o f  
the part ies  are the same whether the act ion  stems 
from a s t i t u a t i o n  in  f e d r a l  employment or  in 
employment in other sectors  o f  the economy. See 
Chandler v .  Roudebush, 425 U.S. 840 ( 1 9 7 6 ) .  
Therefore,  th is  Court, applying the same standards 
for  attorneys '  fees  awards in the instant case as 
have been previously  es tab l ish ed ,  awards defendant 

his  reasonable attorneys '  fees  upon proof  o f  the

2_/ See a l s o  Burgess  v .  Hampton, C i v i l  No. 
76-0836 (D.D.C. Jan. VT, 1977); 6 Moore's Federal 
Practice  1 54 .77 (2 ) ,  at 7109 (1976).



333-

same within a reasonable 3/time.—

3/  In awarding reasonable a ttorneys '  fees  to  the 
Government, the Court expressly  r e l i e s  on e q u i t ­
a b le  c o n s i d e r a t i o n s ,  i m p l i c i t  in the  American 
ru le ,  separate and apart from the statute .  T i t l e  
VII e x p l i c i t l y  allows courts  in the ir  d i s c r e t io n  
to  grant a ttorneys '  fees  to "the p rev ia l ing  party,  
o t h e r  than the Commission (Equal Employment 
Opportunity Commission) or the United S ta te s . "  42 
U.S.C. § 2Q00e-5(k). This s ec t ion  was part o f  the 
1964 C iv i l  Rights Act which outlawed private em­
ployment d iscr iminat ion .  I t  was then incorporated 
by re ference  in the 1972 amendments to the Act, 
which extended t i t l e  V I I ' s  pro tect ions  to federal  
employees. I t  seems c lear  that an agency o f  the 
federa l  government act ing as a party .defendant 
in a t i t l e  VII suit  must be e n t i t l e d  to  at least  
the same n o n s t a t u t o r y  t r a d i t i o n a l  remedies  
avai lable  to private employers in the same circum­
stances.  See d iscuss ion  o f  l e g i s l a t i v e  h is to ry  in 
Grubbs v.  Butz, 548 F.2d 973, 976 & n. 15 (D.C. 
C i r . 1976). The l e g i s l a t i v e  h i s t o r y  o f  the 1972 
amendments is completely s i l e n t  as to  any intent 
of  such amendments to ban or to allow awards of 
at torneys '  fees  for  prevai l ing  governmental agency 
defendants.  Therefore,  without e x p l i c i t  congres­
sional act ion  to the contrary,  the customary fee 
r u l e s  o u t l i n e d  in A l y e s k a , s u p r a , a p p ly ,  and 
defendant in the instant case is e n t i t l e d  to  fees  
under that  r u l e .  See C a rr ion  v .  Yesh iva  Uni­
v e r s i t y ,  supra; Burgess v. Hampton, supra; U.S. 
Stee l Co. v.  United States,  519 F .2d 359 (3rd Cir.  
1975).



34a

3. The Court awards defendant such costs  as 

he may have expended in l i t i g a t i n g  th is  act ion  
upon proof  o f  same. See, Fed. R. Civ.  P. 54(d) .

An Order cons istent  with the foregoing has 
been entered th is  day.

John H. Pratt
United States D is t r i c t  Judge

August 22 1977



-  35a -

ORDER OF THE DISTRICT COURT, 

AUGUST 22, 1977.

UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA

No. 76-1156

BARBARA N. COPELAND,

P l a i n t i f f ,

v.

SAMUEL R. MARTINEZ,

Defendant.

O R D E R

C o n s i s t e n t  with the F ind ings  o f  Fact and 
Conclusions o f  Law entered herein  i t  is by the 
Court th is  22nd day o f  August, 1977,

ORDERED:

( 1 )  Judgment is  hereby  awarded to  
defendant and p l a i n t i f f ' s  act ion  is dismissed with 
p r e ju d i c e ;



( 2 )  Defendant i s  hereby  awarded the 
c o s t s  o f  t h i s  l i t i g a t i o n  i n c l u d i n g  r e a s o n a b le  
attorneys '  f ees ;

(3)  Defendant within twenty (20) days 
s h a l l  make a p p l i c a t i o n  t o  the Court f o r  s a id  
a t t o r n e y s '  f e e s ,  s a i d  a p p l i c a t i o n  to  be a c ­
companied by a l l  n e c e s s a r y  s u p p o r t in g  d o cu ­
mentation.

John H. Pratt
United States D is t r i c t  Judge



37a

ORDER OF THE DISTRICT COURT, 

OCTOBER 7, 1977.

UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA

No. 76-1156

BARBARA N. COPELAND,

P l a i n t i f f ,

v.

SAMUEL R. MARTINEZ,

De fendant.

O R D E R

The Court has considered defendant 's  Appl ica­
t i o n  For Award o f  Costs  In c l u d i n g  Resonable  
Attorneys '  Fees, Memorandum in Support thereo f ,  

and the a f f id a v i t s  attached thereto .  Said Appl i ­
c a t i o n  was subm itted  pursuant to  our  Order o f  

Dismissal of  August 22, 1977. Although served
with the same on September 16, 1977, n e i t h e r

p l a i n t i f f  nor her a t t o n r e y  o f  r e c o r d  has made 
As a resu lt  o f  i t s  cons iderat ion ,  theresponse.



Court f inds that the costs  applied for  are rea­
sonable and f u l l y  supported by the documentation 
accompanying the A p p l i c a t i o n .  A c c o r d i n g l y ,  
i t  is this  7th day o f  October,

ORDERED, that:
(1)  Defendant is  awarded costs  in the to ta l  

amount of  $3,520.89, including attorneys '  fees in 
the amount of  $3,193.40;

(2 )  Defendant is granted judgment against 

p l a i n t i f f  in  the f o r e g o i n g  t o t a l  amount o f  
$3,520.89.

I

John H. Pratt
United States D is t r i c t  Judge



MEILEN PRESS !NC. —  N. Y. C. 219