Chisom v. Roemer Reply Brief for Petitioners Ronald Chisom, et al

    IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 79-4373

ETTA B. SAUNDERS,
Plaintiff-Appellee, 

v.

WILLIAM GRAHAM CLAYTOR, JR., 
Secretary of the Navy, 
et al.,

Defendants-Appellants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF CALIFORNIA

BRIEF FOR THE APPELLEE

HOWARD MOORE, JR,
Moore & Bell 
The London Bldg.,
Third Floor
160 Franklin Street
Oakland, California 94607

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
BILL LANN LEE

10 Columbus Circle 
Suite 2030
New York, N.Y. 10019 

Attorneys for Plaintiff-Appellee



IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 79-4373

ETTA B. SAUNDERS,

Plaintiff-Appellee,
v.

WILLIAM GRAHAM CLAYTOR, JR., 
Secretary -of the Navy, 
et al.,

Defendants-Appellants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF CALIFORNIA

BRIEF FOR THE APPELLEE

HOWARD MOORE, JR,
Moore & Bell 
The London Bldg.,
Third Floor
160 Franklin Street
Oakland, California 94607

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
BILL LANN LEE

10 Columbus Circle 
Suite 2030
New York, N.Y. 10019 

Attorneys for Plaintiff-Appellee



I N D E X

Questions Presented ....................................  1

Statement of The Case ...............     2
Summary of A r g u m e n t ...................   4
Argument

I. The Inclusion of A Cost of Living Factor 
in Calculating Back Pay Is A Necessary 
Part of Fashioning Relief That Will Make
A Victim of Discrimination Whole ..........  4a

II. As The Prevailing Party, Plaintiff Was 
Entitled to An Award of Counsel Fees for 
All Work Reasonably Done in The
Litigation of The C a s e ........................11

Conclusion...........................   17

Certificate of Service ................................ 17
Appendix................................................. la

Page



TABLE OF CASES

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) . . . .  4,5

Brown v. Bathke, 588 F.2d 634 (8th Cir. 1978)........... 16

Brown v. General Services Administration, 425 U.S. 820
(1976)................................................... 10

Cannon v. University of Chicago, U.S. , 60 L.Ed.
2d 560 (1979)..........................................  13

Chandler v. Roudebush, 425 U.S. 840 (1976)...............  6,10

Cooper v. Curtis, 16 EPD 1(8099 (D.D.C. 1978). . . . . . .  16
Davis v. County of Los Angeles, 8 E.P.D. 1(9444

(D.C. Calif. 1974)   13,14,15

Day v. Mathews, 530 F.2d 1083 (D.C. Cir. 1976)............ 6,7

Dawson v. Pastrick, F.2d , 19 E.P.D. 1(9270
(7th Cir. 1979)........................................  16

Donaldson v. O'Connor, 454 F. Supp. 311 (N.D. Fla. 1978). 16

Eastland v. T.V.A., 553 F.2d 364 (5th Cir. 1977) . . . .  6

Foster v. Boorstin, 561 F.2d 340 (D.C. Cir. 1977) . . . .  6

Franks v. Bowman Transportation Co., 424 U.S. 747 (1976). 5

Grubbs v. Butz, 514 F.2d 1323 (D.C. Cir. 1975)...... 7

Howard v. Phelps, 443 F. Supp. 374 (E.D. La. 1978) . . .  16

Johnson v. Georgia Highway Express, 488 F.2d 714 (5th
Cir. 1974)............................................. 13

Morton v. Mancari, 417 U.S. 535 (1974)...........  6,10

Palmer v. Rogers, 10 EPD 1(10,499 (D.D.C. 1 9 7 5 )....  16
Parker v. Califano, 561 F.2d 320 (D.C. Cir. 1977) . . . .  13

Pettway v. American Cast Iron Pipe Co,, 494 F.2d 211
(5th Cir. 1 9 7 4 )......................................  5

Saunders v. NARF, C.A. No. C-74-0520 WHO N.D. Calif. . . 4

Seals v. Quarterly County Court, 562 F.2d 390 (6th Cir.
1977) ...................................................  16

Page

l



Smith v. Fletcher, 559 F.2d 1014 (5th Cir. 1977) . . . .  16

Southeast Legal Defense Group v. Adams, 436 F. Supp.
891 (D. Ore. 1 9 7 7 ) .................................. 16

Stanford Daily v. Zurcher, 64 F.R.D. 680 (N.D. Cal.
1974), aff»d, 550 F.2d 464 (9th Cir. 1977), rev'd on 
other grounds, 436 U.S. 547 (1978).......... 13, 14, 15

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

Other Authorities:

42 U.S.C. § 1988 ................... ..................... 13

42 U.S.C. § 2000e-5.................................. 6, 10

42 U.S.C. § 2000e-5 ( g ) ........................... 5, 6, 10

42 U.S.C. § 2000e-16(b)   9

42 U.S.C. § 2000e-16(c)   3

H. Rep. No. 94-1558 (94th Cong., 2d Sess.)................15

122 Cong. Rec. S. 16251 (daily ed., Sept. 21, 1976) . . 15

122 Cong. Rec. H. 12155 (daily ed., Oct. 1, 1976) . . .  15

S. Rep. No. 94-1011 (94th Cong. 2d Sess.).......... 14, 15

Sub Committee on Labor of the Senate Comm. Labor and 
Public Welfare, Legislative History of the Equal 
Employment Opportunity Act of 1972 (Comm.
Print 1 9 7 2 ).......... ......................... 8, 9

TABLE OF CASES
Page

ii



IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 79-4373

ETTA B. SAUNDERS,
Plaintiff-Appellee, 

v.

WILLIAM GRAHAM CLAYTOR, JR.,
Secretary of the Navy, et al.,

Defendants-Appellants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF CALIFORNIA

BRIEF FOR THE APPELLEE 

QUESTIONS PRESENTED
1. Whether a court is obligated to include a 

"cost of living inflation factor" in calculating back pay in 

order to make a plaintiff whole for injury suffered by dis­

crimination that violated Title VII of the Civil Rights Act?

2. Whether a district court may grant attorneys' 

fees for all work reasonably done by counsel for a plaintiff 

who prevails in the central issue raised in a Title VII action?



STATEMENT OF THE CASE

Although, the statement of the case by the appellants 
is generally complete, appellee wishes to emphasize a number 
of points.

FIRST, with regard to the cost of living escalator 

used by the district court to adjust the back pay award, the 

defendants-appellants do not dispute its accuracy. Thus, they 

do not question the fact that because of rampant inflation 

since 1973, an adjustment must be made so that 1979 dollars 

will have a value equivalent to 1973-78 dollars,

SECOND, with regard to counsel fees, an examination of 
the proceedings below demonstrates the interrelationship of the 
two issues that were litigated.

1. On February 14, 1972, the Navy found 

that plaintiff had been discriminated against with 

regard to a promotion. (Excerpts of Record, p. 13)..

2. During the period 1968 to 1973 plaintiff 

was a "highly visible and active symbol of equal 

opportunity" at the NARF facility (Id., pp, 18-19).

3. On March 19, 1973, plaintiff applied for 

the position of Equal Employment Opportunity Specialist,
(Id. at 13) .

4. On April 2, 1973, plaintiff was notified 

that her employment in her current job at NARF would be 

terminated effective June 1, 1973, as a result of a 
reduction in force (RIF). (Id. at 20).

5. On April 9, 1973, she was notified that she
2



would not be considered for the EEO specialist 

position. If she had received that job, she would 

have remained at NARF despite the RIF. (Id. at 15).

6. The real reason for declaring plain­

tiff ineligible for the EEO specialist job was "to 

prevent plaintiff from getting the position, and 

thereby to force her to leave the Base," and this 

action was "the result of discriminatory and/or re­

taliatory animus." (Id. at 19).

7. On May 23, 1973, an appeal from the 

RIF was filed. (Id. at 21).
8. On July 16, 1973, a discrimination 

complaint from the denial of the EEO specialist job 

was filed. (Id. at 15).
9. The RIF appeal and the discrimination 

complaint processing ended at different times, the 

former on November 16, 1973, and the latter on May 
23, 1974. (Id. at 21 and 15). Under 42 U.S.C.

§ 2000e-16 (c) and Civil Service Commission regulations 
plaintiff had to file a civil action within 30 days 

of each final administrative decision. Thus, she 
could not wait until the discrimination complaint was 

decided and still file an action based on the RIF 

appeal. For this reason, she was forced to file two 

separate lawsuits, one on December 14, 1973 (Civil 
Action No. C-73-2241 WHO) and one on June 18, 1974 
(Civil Action No. C-74-1286 WHO).

3



10. Subsequently, the two cases were assigned to

one judge as being related under the rules of the district

court, and they were consolidated for discovery and trial.
1/

(Id., pp. 41, 47) .

SUMMARY OF ARGUMENT

I.
A cost of living adjustment to a back pay award 

is appropriate and necessary in order to make whole a victim 
of discrimination for the injury caused by discrimination.

In Title VII actions a federal government employee is entitled 

to the same relief as is a private employee and therefore there 

is no bar to such an award against the government.

II.

Plaintiff was the prevailing party with regard to 

her central claim. Therefore, there is no basis for appor­

tioning the counsel fee awards on the basis of her failure to 

prevail on all issues.

1/ These cases were originally consolidated with a number of 
other actions involving NARF, including a class action brought 
on behalf of all Black, Hispanic, and Filipino employees 
(Saunders v. NARF C.A. No. C-74-0520 WHO N.D. Calif,) Subsequent­
ly, the class action was settled and these two actions were 
severed from the other cases and set for trial. CFxcerpts of 
Record, pp. 41, 48).

4



ARGUMENT

r.
The Inclusion of A Cost of Living Factor in 
Calculating Back Pay Is A Necessary Part of 
Fashioning Relief That Will Make A Victim 
of Discrimination Whole,

The government's argument in this case fails 

completely either to understand or to address the purpose of 

a back pay award in a Title VII case. The Supreme Court in 

Albemarle Paper Co, v.. Moody, 422 U,S, 4G5 C1975) explains 

that:

It is also the purpose of Title VII 
to make persons whole for injuries 
suffered on account of unlawful un­
employment discrimination , , , ,
Where racial discrimination is con­
cerned, "the [district] court has 
not merely the power but the duty 
to render a decree which will so far 
as possible eliminate the dis­
criminatory effects of the past , ,

422 U.S. at 418. Specifically, where the injury is of an economic

4a



character, the Court held that -
. . . "The injured party is to be placed, 
as near as may be, in the situation he 
would have occupied if the wrong had not 
been committed." Wicker v. Hoppoch, 6 
Wall 94, 99 (1867) .

422 U.S. at 418-19. See also, Franks v. Bowman Transportation 

Co. , 424 U.S. 747 (1976), holding that a grant of retro­

active seniority needed to make discriminatees whole was per­
missible even though such relief was not specifically authorized 

by § 2000e-5(g).
In the case of plaintiff appellant, she was dis- 

criminatorily denied a position in 1973 that would have prevented 

her termination from the federal service. As a result, she re­

ceived no salary in the years 1973 until 1979. If she had not 
been terminated, that is, if the "wrong had not been committed," 

she would have received, for example, her salary in 1973 in 1973 

dollars. As held in Albemarle, the district court was required 
to place the plaintiff "in the situation [she] would have 

occupied" if she had in fact received her salary in 1973. This 

could only be done by factoring in an amount that would make up 

for the decrease in the value of money between 1973 and 1979, 

when the award was made.
Such a result is fully consistent with many Title VII 

decisions in which such items as vacation and sick pay and 

adjustments to pension rights are granted. See, e.g ., Pettway 

v. American Cast Iron Pipe Co., 494 F.2d 211, 263 (5th Cir. 1974), 

and cases cited there at notes 155 and 156. Only by providing

5



such relief in addition to straight back pay can a victim of 

discrimination be made whole as the Act requires.
The government, however, urges that it is entitled 

to special treatment; that its employees may not receive the 

full relief to which all other employees who have suffered 
from racial discrimination are clearly entitled. However, it 

is clear that the government is subject to the same law under 

Title VII— whether it relate to procedural, substantive, or 
remedial matters— as are all other employers. Thus, in Morton 
v. Mancari, 417 U.S. 535, 547 (1974), the Supreme Court held 

that the 1972 amendments to Title VII resulted in the "substan­

tive anti-discrimination law embraced in Title VII" being 

applied to the Federal government. Chandler v. Roudebush,425 

U.S. 840 (1976),similarly held that the procedures that governed 

private Title VII actions applied fully to Federal government 

cases by virtue of 42 U.S.C. § 2000e-16(d), which provides that 

the provisions of § 2000e-5(f)-(k) of the statute govern in 
such cases. The statutory provision for back pay, § 2000e-5(g), 

is, of course, included as one of the governing provisions.

The lower courts have consistently held that the same 

law applies to the Federal government as to all other employers 
with regard to the maintainability of class actions (Eastland 

v. T.V.A., 553 F .2d 364 (5th Cir. 1977); Williams v. T.V.A., 552 

F .2d 691 (6th Cir. 1977), when the remedy of back pay should be 

awarded (Day v. Mathews, 530 F.2d 1083 (D.C. Cir. 1976), the 
determination of the "prevailing party" for the award of counsel 

fees (Foster v. Boorstin, 561 F .2d 340 (D.C. Cir. 1977), and other

6



issues (e .g., Grubbs v. Butz, 514 F.2d 1323 (D.C. Cir. 1975)).

Moreover, the Attorney General has acquiesced in the 

principal that the same law applies to the government as to 

other employers. Indeed, in a policy statement addressed to 

all United States Attorneys and agency general counsels on 

August 31, 1977, the Attorney General announced:

In a similar vein, the Department 
will not urge arguments that rely upon 
the unique role of the Federal Govern­
ment. For example, the Department 
recognizes that the same kinds of relief 
should be available against the Federal 
Government as courts have found appropri­
ate in private sector cases, including 
imposition of affirmative action plans, 
back pay and attorney's fees. See Copeland_ 
v. Usery, 13 EPD 1(11,434 (D.D.C. 1976); Day 
v. Mathews, 530 F.2d 1083 (D.C. Cir. 1976);
Sperling v. United States, 515 F.2d 465 (3d 
Cir. 1975). Thus, while the Department 
might oppose particular remedies in a given 
case, it will not urge that different 
standards be applied in cases against the 
Federal Government than are applied in other 
cases. (Emphasis supplied.)

(The full statement is appended to appellee's brief at pp, la-3a).

It should be noted that the government does not question 

in any way the accuracy of the calculation of the amount necessary 

to compensate for inflation. Therefore, it is not disputed that 

the amount awarded by the district court does in fact make plain­

tiff whole for the financial loss she suffered becaused of dis­

crimination. We must turn, then, to the reasons urged by the 

government as to why the district court was without the power to 

grant the full relief mandated by the statute by making a cost of

7



living adjustment to the back pay award. The central problem 

with the government's position is its confusion between what 

may or may not be permissible under the Back Pay Act, and what 

is required, or at least authorized, under Title VII of the 

Civil Rights Act.
A main concern of Congress in 1972 was whether relief 

such as back pay could be provided by the Civil Service 
Commission in discrimination cases because of the limitations of 

the Back Pay Act. This concern was extended to the availability 

to federal employees of court review and the same full judicial 
relief that private employees enjoyed. Thus, the House Report

v
on the Equal Employment Opportunity Act of 1972 notes that:

Despite the series of executive and ad­
ministrative directives on equal employment

2/

2/ To a large degree the government's position depends on there 
being no difference between interest and a cost of living adjust­
ment. The government overlooks the fact that although an award of 
interest may be in part to compensate for inflation, that is not 
its sole purpose. Interest is basically a fee for the use of 
money, and is charged whether or not there happens to be inflation 
at any particular time. Congress' decision not to require the 
government to pay such a fee does not necessarily evidence an 
intent to bar adjustments whose sole purpose is to compensate for 
inflation. Thus, assuming for the sake of argument that interest 
may not be awarded against the government even in a Title VII 
action, it does not follow that other kinds of adjustments are 
improper.
3/ The legislative history of the 1972 amendments to Title VII 
has been compiled in Sub Comm, on Labor of the Senate Comm, on 
Labor and Public Welfare, Legislative History of the Equal Employ­
ment Opportunity Act of 1972 ( C o m m .  Print 1972) (hereinafter 
"Legislative History”).

8



opportunity, Federal employees, unlike those 
in the private sector to whom Title VII is 
applicable, face legal obstacles in obtaining 
meaningful remedies. There is serious doubt 
that court review is available to the 
aggrieved Federal employee. Monetary restitu­
tion or back pay is not attainable........
Under the proposed law, court review, back pay, 
promotions, reinstatement, and appropriate 
affirmative relief is available to employees 
in the private sector........

Legislative History at 85. Therefore, federal employees were not 

only given the right to go into court and seek the same relief 

available to private employees, but the Civil Service Commission 

itself was given broad new powers in Section 717(b)(42 U.S.C.

§ 2000e-16(b)).
The Senate Committee report described the provision in 

terms that leave little doubt as to its plenary nature:
[T]he provision in section 717(b) for 

applying "appropriate remedies" is intended 
to strengthen the enforcement powers of the 
Civil Service Commission by providing 
statutory authority and support for ordering 
whatever remedies or actions by Federal 
agencies are needed to ensure equal employ­
ment opportunity in Federal employment. . .
. The Commission is to provide Federal 
agencies with necessary guidance and authori­
ty to effectuate necessary remedies in 
individual cases, including the award of back 
pay, reinstatement or hiring, and immediate 
promotion where appropriate.

Legislative History at 424. The Conference Committee's section-

by-section analysis of the Act makes it clear that its remedial

provisions are to be read broadly and were not intended to be

limited to those specifically enumerated:
The Civil Service Commission would be authorized 
to grant appropriate remedies which may include,

9



but are not limited to, back pay for 
aggrieved applicants or employees. Any 
remedy needed to fully recompense the 
employee for his loss, both financial 
and professional, is considered appro­
priate under this subsection.
(emphasis added).

Legislative History at 1851. Obviously, the inclusion of a cost 

of living inflation factor is a remedy needed to recompense 

fully the employee for the financial loss suffered as a result 

of discrimination. Just as obviously, it is inconceivable that 

Congress intended to grant such broad relief powers to the 

Commission and deny them to the courts when one of its main 
concerns in giving the right to go to court was the past failure 

of the Commission adequately to enforce EEO rights. To the con­

trary, the Senate Report states that, "aggrieved employees or 

applicants will also have the full rights available in the courts 
as are granted to individuals in the private sector under Title 

VII." Legislative History at 425.

To summarize, in 1972 Congress did not pass an amend­

ment to the Back Pay Act. Rather, it amended Title VII to pro­

vide federal employees with a "careful blend of administrative
1/and judicial enforcement powers" intended "to accord federal

V
employees the same right[s]" enjoyed by other employees. This

was accomplished by providing that 42 U.S.C. § 2000e-5 (g) , inter

alia, governs the provision of relief. In Brown v. General

Services Administration, 425 U.S. 820, 832 (1977), the Supreme

Court held that Title VII is the exclusive remedy for federal

employment discrimination and that:
Sections 706(f) through (k), 42 U.S.C,
§§ 2000e-5(f) through 2000e-5(kl . , . , 
which are incorporated "as applicable" 
by § 717(d), govern such issues as

47 Brown v. General Services Administration, 425 U.S. 820, 833 
(1977) .
5/ Chandler v. Roudebush, 425 U.S. 840, 848 (1976).

10



venue, the appointment of attorneys, 
attorneys' fees, and the scope of 
relief.

Therefore, the body of law developed in private Title VII cases 

governs this case and the district court was fully justified in 

relying on it to fashion appropriate relief.
II.

As The Prevailing Party, Plaintiff Was Entitled 
to An Award of Counsel Fees for All Work 
Reasonably Done in The Litigation of The Case.
In civil rights litigation, and particularly in employ­

ment discrimination cases, issues are overlapping and intertwined. 

In order to represent a client adequately an attorney must explore

fully every aspect of a case, develop all evidence and present it

to the court. In many cases the plaintiff will not be successful 
with regard to every contention. It would be virtually impossible 

for the court to arrive at any accurate assessment of the time 

spent on each issue and apportion fairly the amount of counsel 

fees to be recovered.
The present case is a particularly good example of such

situation. There was in fact one central issue in the case, viz.,

plaintiff had lost her employment at the Naval Air Rework Facility 

This came about because of the conjunction of two events that 

occurred within a week of each other. Ms, Saunders was informed 

on April 2, 1973, that she would be terminated because of a RIF, 
and on April 9, 1973, she was notified that she would not be con­

sidered for another position that would have allowed her to remain 

Naturally, she suspected some connection between the two events,

11



particularly in light of her prior EEO activities..

In April, 1973, of course, plaintiff had no way of 

knowing whether the denial of the promotion, the RIF, or 
both, had discriminatory motives. Therefore, she had no 

choice but to challenge both actions. Because of the struc­

ture of the Civil Service Commission regulatory scheme, there 

were two separate administrative proceedings that ended at 

different times. Thus, instead of there being one lawsuit 

filed, plaintiff had to file two at different times. Since 

the two actions involved the same issue— the termination of her 

employment— they were consolidated and tried as if they were 

one action. The interrelationship of the RIF and the promotion 

denial meant that counsel worked on them at the same time.

Plaintiff's suspicions that there was a relationship 

between the RIF and the promotion denial proved correct. The 

district court held that the refusal to consider her for the 

promotion that would have allowed her to stay was to prevent 
her from getting the job and thereby to force her to leave the 

Base as a result of the RIF, The motives behind the action 

were both to discriminate against her and to commit reprisal

against her because of her EEO activities. Although the RIF
£/

itself was not the result of discrimination, it was seized upon

6/ The district court did hold, however, that placement of 
other employees in derogation of plaintiff's rights resulted, 
in part, from defendants' administrative inefficiency although 
discrimination or retaliation was not involved. Excerpts of 
Record, p. 22.

12



by the discriminating officials as the way to get rid of the 

plaintiff when they denied her the promotion. Thus, in every 

sense of the word, plaintiff prevailed on the central claim 

in the case— that she was forced to leave the base because of 
"discriminatory and/or retaliatory animus,"

The interrelationship of issues in civil rights 

cases was recognized by Congress when it passed the Civil 

Rights Attorneys' Fee Act of 1976 C42 U.S.C, § 19881, Thus, 

the legislative history of that statute makes it clear that
counsel fee awards should not be based on the proportion of

7/
the case that has been won. The Senate Report on the Act

discusses the standards which should be used in determining
counsel fee amounts and states:

The appropriate standards, see Johnson 
v. Georgia Highway Express, 488 F,2d 
714 (5th Cir. 1974), are correctly 
applied in such cases as Stanford Daily 
v. Zurcher, 64 F.R.D. 680 (N.D. Cal,
1974); Davis v. County of Los Angeles,
8 E.P.D. 1(9444 (D.C. Calif, 1974); and 
Swann v. Charlotte-Mecklenburg Board of 
Education, 66 F.R.D. 483 (W'.D.N.C. 1975)

7/ The Supreme Court has relied on the legislative history of 
the 1976 Act in interpreting Title IX of the Education Amendments 
of 1972, as well as Title VI of the Civil Rights Act of 1964, In 
Cannon v. University of Chicago, U.S. , 60 L ,Ed, 2d 56Q,
569 n. 7 (1979), it was noted that:

Although we cannot accord these remarks the weight 
of contemporary legislative history, we would be 
remiss if we ignored these authoritative expressions 
concerning the scope and purpose of Title IX and its 
place within "the civil rights enforcement scheme" 
that successive Congresses have created over the past 
110 years.

Similarly, the court in Parker v. Califano, 561 F.2d 320, 339 
(D.C. Cir. 1977), looked to the legislative history of the 1972 
Act "'as a secondarily authoritative expression of expert opinion.'"

13



. . . . In computing the fee, counsel
for prevailing parties should be paid, 
as is traditional with attorneys com­
pensated by a fee-paying client, "for 
all time reasonably expended on a 
matter," Davis, supra, Stanford Daily, 
supra, at 684.

S. Rep. No. 94-1011 (94th Cong. 2d Sess.), p. 6.

The quoted language from Davis relates directly to 

the question of proportionate fees. The full quote is:

It also is not legally relevant that 
plaintiffs' counsel expended a certain 
limited amount of time pursuing certain 
issues of fact and law that ultimately 
did not become litigated issues in the 
case or upon which plaintiffs ultimately 
did not prevail. Since plaintiffs pre­
vailed on the merits and achieved ex­
cellent results for the represented class, 
plaintiffs' counsel are entitled to an 
award of fees for all time reasonably ex­
pended in pursuit of the ultimate result 
achieved in the same manner that an 
attorney traditionally is compensated by 
a fee-paying client for all time reasonably 
expended on a matter.

8/
8 EPD 119445, p. 5049. Similarly, in Stanford Daily, at the page

cited in the legislative history, the district court rejected

the position taken by some federal courts, "that hours spent on

the litigation of unsuccessful claims should be deducted from

the number of hours upon which an attorneys' fee award is

computed." The Court held:
However, several recent decisions, adopting 
a different tack, deny fees for clearly 
meritless claims but grant fees for legal 
work reasonably calculated to advance their 
clients' interests. These decisions 
acknowledge that courts should not require 
attorneys (often working in new or changing 
areas of the law) to divine the exact para-

8/ Stanford Daily v. Zurcher's holding on counsel fees was 
summarily affirmed by this Court. 550 F.2d 464 (9th cir. 1977), 
rev'd on other grounds, 436 U.S. 547 (1978).

- 14 -



meters of the courts' willingness to 
grant relief.- See, e .g., Trans World 
Airlines v, Hughes, 312 F. Supp. 478 
(S.D.N.Y. 1970), aff'd with respect 
to fee award, 449 F.2d 51 (2nd Cir.
1971), rev'd on other grounds, 409 U.S.
363, 93 S.Ct. 648, 34 L.Ed.2d 577 
(1973). One Seventh Circuit panel, 
for example, allowed attorneys' fees 
for legal services which appeared un­
necessary in hindsight but clearly 
were not "manufactured." Locklin v.
Day-Glo Color Corporation, 429 F.2d 
873, 879 (7th Cir. 1970) (concerning 
fees for antitrust counterclaims).

64 F.R.D. at 684.
When one considers the overall intent of Congress in 

passing the various counsel fee provisions it must be concluded 

that the allocation of counsel fees on the basis of the percent 

of the case won would contravene that intent because it would 

have a discouraging affect on the willingness of attorneys to 
become involved in civil rights litigation. The legislative 

history of § 1988 is replete with references to the difficulty 

in maintaining civil rights cases because of their costs, and 

the necessity for plaintiffs being able to retain attorneys 

with the assurance that they will be paid on the same basis as 
they would in comparable civil litigation. See, e .g ., S. Rep. 

No. 94-1011 (94th Cong., 2d Sess.) pp, 2, 6; H. Rep. No. 94-1558 

(94th Cong., 2d Sess.) pp. 2-3; 122 Cong. Rec. S» 16251 (daily 

ed., Sept. 21, 1976) (remarks of Sea. Scott); Id., at 16252 
(remarks of Sen. Kennedy); 122 Cong. Rec. H. 12155 (daily ed., 

Oct. 1, 1976)(remarks of Rep. Seiberling).
Other courts have, following the above considerations, 

interpreted various civil rights attorneys' fee provisions in

15



the same way. See, e .g., Donaldson v. O'Connor, 454 F. Supp. 

311, 316 (N.D. Fla. 1978), in which the court discussed the 

above legislative history and concluded, ". , . Congress 

clearly could not have contemplated that an award of attorney's 

fees should depend upon the extent to which a plaintiff pre­

vails in gaining all the relief requested . . .", citing Seals 

v. Quarterly County Court, 562 F.2d 390 (6th Cir. 1977); Howard 

v. Phelps, 443 F. Supp. 374 (E.D. La. 1978); and Southeast Legal 

Defense Group v. Adams, 436 F. Supp. 891 (D. Ore. 1977); See 

also, Brown v. Bathke, 588 F.2d 634 (8th Cir. 1978); Smith v. 

Fletcher, 559 F.2d 1014 (5th Cir. 1977); Dawson v. Pastrick,

____F.2d ___, 19 E.P.D. 119270 C7th Cir. 1979); Cooper v. Curtis,

16 EPD 118099 (D.D.C. 1978); Palmer v. Rogers, 10 EPD 1[10,499 

(D.D.C. 1975).

In sum, plaintiff first urges that she prevailed 

completely on the central issue in this litigation, her claim 

that she was discriminated against when her employment with the 
Department of the Navy was ended. Second, even if it were 

decided that she did not prevail on all issues, she still is 

entitled to recover a full award of fees in light of 

Congressional intent and the purpose of the counsel fee statute,

16



CONCLUSION

For the foregoing reasons, the decision of the 

district court should be affirmed.

HOWARD MOORE, JR.
Moore & Bell
The London Bldg., Third Floor 
160 Franklin Street 
Oakland, California 94607

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
BILL LANN LEE

10 Columbus Circle 
Suite 2030
New York, N.Y. 10019

CERTIFICATE OF SERVICE

I hereby certify that on this 17th day of October, 

1979, I served the foregoing Brief for the Appellee by causing 
copies to be mailed to:

Alice Daniel, Acting Assistant Attorney 
General

Robert E. Kopp 
Michael Jay Singer

Civil Division, Appellate Staff 
Department of Justice 
Washington, D.C. 20530

G. William Hunter, United States Attorney 
450 Golden Gate Avenue 
San Francisco, California 94102

IHARLES STEPHEN RALSTON
Attorney for Plaintiff-Appellee

17



*

MEMORANDUM FOR UNITED STATES ATTORNEYS 
'AND AGENCY GENERAL COUNSELS

i Title VII Litigation

In 1972, as additional evidence of our Nation's derar 
“ ■nation to guarantee equal rights to all citizens Confess 
amended Title VII of the Civil Rights Act of 1964 to p ^ i d '  
Federal empioyees and applicants for Federal employment with
of Justice eof°rCeable uqUSl emP1 * *°yniGnt rights . ? The^Department £ Justice, or course, has an important role in the aff'irman'vp
P5blicesIctors ^  !CC'Kin b°t;' the PrlvatJ  and
we must ensure'that ■
representational functions as defense attorneys for aL^oies 
m  suits utter the Act in a way that will be‘supporti!e nf U d  
consistent with the Department's broader obligations to
as plrt ofUwha?Pw?htU^ lt7 l2WS: This ">™orar,dum is issued
?o this end 3 conclnulnS by the Department

s j^ -^ J S S W £ ,'% .S ig«5 S  ffygy*
enforcement as it has conferred upon employees and I k  
in private industry and in state and local government

I4 " A UHS ' 535 (1974)' Cha"dW r  v. Roudebush.rt o40 (19/6) . And, as a matter o F ^ I I ^ r  ~the~Federa1
Government should be willing to assume for its L  I f  n
than6those 1frt:i0n̂  Wlth. resPect to equal employment opportunities
government employers lmP°Se UP°n Private and sta«  “ d Weal

of this 
the policy, the Department, wneneverIn furtherance
ctle same position in interpreting Title VII 

in defense of Federal employee oases as it has taken and will take m  private or state and local---- — . UL bLaie and local government enmlovpp
For example, where Federal employee! and appli!a£« M e t



A

)!

&

- 2 -

crxte;ria of Rule 23 of the Federal Rules of Civil Procedure 
they are also entitled to the same class rights as are 
private sector employees. Albemarle PaDer Co. v. Moody 
422 U.S. 405, 414 (1975) . Further, the*Denartment of 
Justice has_acquiesced in the recent rulings of the • 
fifth and Sixth Circuit Courts of Appeals that it is' 
unnecessary for unnamed class members to exhaust their 
administrative remedies as a prerequisite to class 
membership. Eastland v. TVA 553 F.2d 364 (5th Cir. 1977) -
Williams v̂ _ TVA, ___F.2d___ (6th Cir. 1977). Consequently,
we wall no longer maintain that each class member in a
Title VII suit must have exhausted his or her administrative remedy.

In a similar vein, the Department 
arguments that rely upon the unique ro 
Government. For example, the Departme 
the same kinds of relief should be ava 
Federal Government as courts have foun 
private sector cases, including imposi 
action plans, back pay and attorney's 
X- Userv , 13 EPD Ull,434 (D.D.C. 1976)530 F-2d 1083 (DC> cir_ ig76). Snerli
515 F.2d 465 (3d Cir. 1975). Thus, wn 
might oppose particular remedies in a 
not urge that different standards be a 
the Federal Government than are applie

will not urge 
le of the Federal 
nt recogni7.es that 
ilable against the 
d appropriate in 
tion of affirmative 
fees. See Copeland 
; Day v. Hat fie vs , 
ng Dnited States, 
ile tiie Department 
given case, it will 
pplied in cases against 
d in other cases.

The Department, in other respects, will also attempt
the- underlying purpose of Title VII. For example 

the 1972 amendments to Title VII do not give the Government 
a to file a civil action challenging an agency finding
° discrimination. Accordingly, to avoid any appearance on 
the Government's part of unfairly hindering Title VII law 
suits, the Government will not attempt to contest a final 
agency or Civil Service Commission finding of discrimination 
by seeking a trial de novo in those cases where an employee 
who has been successful in proving his or her claim before 
either the agency or the Commission files a civil action 
seeking only to expand upon the remedy proposed by such final decision.



3

The policy set forth above does not reflect, and should 
not be interpreted as reflecting, any unwillingness on the 
part of the Department to vigorously defend, on the merits 
claims of discrimination against Federal agencies where 
appropriate. It reflects only a concern that enforcement of 
the equal opportunity laws as to all employees be uriform ' and consistent.

In addition to tne areas discussed above, the Department 
of Justice is now undertaking a review of the consistency of 
other I m p o s i t i o n s  advanced by the Civil Division in 
efendmg Title VII cases with those advocated by the Civil 

Rights Division in prosecuting Title VII cases. The objective 
this review is to ensure that, insofar as possible, they will 
e consistent, irrespective of the Department’s role as either 

plaintiff or defendant under Title VII. As a part of this 
review, the Equal Employment Opportunity Cases" section of 
the Civil Division Practice Manual (§3-37), which contains 
tne Department s position on the defense of Title VII actions 
brought against the Federal Government, is being revised.
•nen this revision is completed, the new section of the Civil 
Division Practice Manual will be distributed to all 
United States Attorneys’ Offices and will replace the present 
section. Eacn office should rely on the revised section of 
the Manual for guidance on legal arguments to be made in Title
u h ^ l h n l' In order to ensure consistency, any legal arguments which are not treated in the Manual should be referred to the
Civi^ Division for review prior to their being advocated to the court.

01

v :

This policy statement has been achieved through the 
cooperation of Assistant Attorney General Barbara Babcock 
°Z the Civil Division who is responsible for the defense of 
these Federal employee cases, and Assistant Attomev General 
Drew Days of the Civil Rights Division who is my principal 
adviser on civil rights matters. They and their Divisions 
will continue to work closely together to assure that this 
policy is effectively implemented.

GRIFFIN B. BELL

August 31, 1977

D O J -1 977-09