Bakke v. Regents Brief for the United States as Amicus Curiae

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

No. 77-2059 
No. 77-2060

BARBARA COPELAND,
Plaint iff-Appellant,

- v -
SAMUEL R. MARTINEZ,

Defendant-Appellee.

On Appeal From The United States District Court 
For The District of Columbia

BRIEF FOR PLAINTIFF-APPELLANT

ALEXANDER G. PARK
910 17th Street, N.W. 
Suite 812
Washington, D.C. 20006 
(202) 331-1025

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
BILL LANN LEE

10 Columbus Circle 
Suite 2030
New York, New York 10019 
(212) 586-8397

Attorneys for Plaintiff-Appellant



CERTIFICATE
The undersigned, counsel of record for Ms. Barbara 

N. Copeland, certifies that the following listed parties 
appeared below:

Barbara M. Copeland, Plaintiff 
Samuel R. Martinez, Defendant 

These representations are made in order that Judges 
of this Court, inter alia, may evaluate possible disqual­
ifications or recusal.

ALEXANDER G. PARK
910 17th Street, N.W. 
Suite 812
Washington, D.C. 20006 
(202) 331-1025

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
BILL LANN LEE

10 Columbus Circle 
Suite 2030
New York, New York 10019 
(212) 586-8397

By:
Attorney of Record for 

Plaintiff-Appellant

l



INDEX
PAGE

Certificate ..................................  i
Question Presented................ *..........  1
Reference to Parties and Ruling ............. 1
Statute Involved ............................. 2
Statement of the Case........................  2
Summary of Argument .......................... 4
Argument .....................................  5

I. INTRODUCTION..........................  5
II. TITLE VII PROHIBITS AN AWARD

OF COUNSEL FEES ON BEHALF OF THE
UNITED STATES......................   6

A. The Award in This Case Was on
Behalf of the United States ... 6

B. The Plain Meaning of the 
Statute Prohibits An Award of
Counsel Fees ....................  9

C. The Statutory Remedy Provided 
for Federal Employees is
Complete and Exclusive........... 12

III. THE LEGISLATIVE HISTORY OF VARIOUS 
COUNSEL FEE PROVISIONS IN THE CIVIL 
RIGHTS ACTS SHOW CLEAR CONGRESSIONAL 
INTENT NOT TO PERMIT THE UNITED STATES 
TO RECOVER COUNSEL FEES AS EITHER A
PLAINTIFF OR A DEFENDANT.................  13

IV. POLICY CONSIDERATIONS MILITATE AGAINST 
THE RECOVERY OF ATTORNEY'S FEES BY 
THE UNITED STATES......................... 20

CONCLUSION......................................  24
CERTIFICATE OF SERVICE ...................... . . 25

l



TABLE OF CASES
PAGE

Bell v. School Bd. of Powhatan Cty, 321
F. 2d 494 (4th Cir. 1963).......... . ..... 9,23

*Bobsee Corp. v. United States, 411 F.2d
231 (5th Cir. 1969)...................... 19

*Brown v. General Services Administration,
425 U.S. 820 ( 1976)...................... . 12

Byram Concretanks, Inc. v. Warren Concrete 
Products Co., 374 F .2d 649 (3rd Cir.
1967).................................... . . 9

Carrion v. Yeshiva University, 535
F.2d 722 (2nd Cir. 1976)................. 6

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

Christiansburg Garment Co. v. EEOC,
U.S. , 46 U.S.L.W. 4105 

(Jan. 23, 1978)........................... 6
Dugan v. Rank, 372 U.S. 609 (1963)............. . 7
F.D. Rich v. Industrial Lumber Co.,

417 U.S. 116 ( 1974 )...................... . 9
*Fleischmann Distilling Corp. v. Maier

Brewing co., 386 U.S. 714 (1967)........ 12 t /
*Gnotta v. United States, 415 F .2d 1271 (8th

Cir. 1969)................................ 7
Grubbs v. Butz, 548 F .2d 973

(D.C. Cir. 1976).......................... . 10,13, 16
*Hall v. Cole, 412 U.S. 1 (1973)............... . 12
Kennedy v. Rabinowitz, 318 F.2d 181

(D.C. 1963), aff'd on other grounds,
376 U.S. 605 (1964)...................... . 7

*Lynch v. Alworth-Stephens Co., 267
U.S. 364 ( 1924 )........................... 10

ll



TABLE OF CASES
PAGE

McEnteggart v. Cataldo, 451 F .2d 1109
(1st Cir. 1971)................... .......  9

McQueary v. Laird, 449 F .2d 508
(10th Cir. 1971).......................... 8

Manhattan-Bronx Postal Union v. Gronowski,
350 F . 2d 451 (D.C. Cir. 1965)............ 8

*Parker v. Califano, 561 F.2d 320
(D.C. Cir. 1976).......................... 13,15,19,22

Ritter v. Morton, 513 F.2d 942 (9th Cir.
1975).....................................  8

Rolax v. Atlantic Coast Line R. Co., 186
F. 2d 473 ( 4th Cir. 1951).................  9

Sierra Club v. Hickel, 467 F .2d 1048
(6th Cir. 1972)........................   8

Simons v. Vinson, 394 F .2d 732
(5th Cir . 1968)............................. 8

Vaughan v Atkinson, 369 U.S. 527 (1962)........... 9
Yablonski v. United Mine Workers of

America, 151 U.S. App. D.C. 253,
466 F . 2d 424 (D.C. Cir. 1972)............... 12

STATUTES * *
42 U.S.C. §19731     17
42 U.S.C. §1988..................................... 17
*42 U.S.C. §2000e-5 ( k ).................... .......... passim
42 U.S.C. §3612 .................................... 17
20 U.S.C. §1617 ................................... 17
28 U.S.C. §2412 .................................. 8

- iii -



TABLE OF CASES

OTHER AUTHORITIES
PAGE

47 Comp. Gen. 70 (1967)....................... 8
110 Cong. Rec. (1964)............... .......... 24
118 Cong. Rec. (1972)....................  .... 14,15
*122 Cong. Rec. ( 1976 )........................ 18,19
S. Rep. No. 94-1011

(94th Cong. 2nd Sess .)................. 17
Sub. Com. on Labor of the Senate Comm, on

Labor and Public Welfare, Legislative 
History of the Equal Employment 
Opportunity Act of 1972 (Comm.
Pr int 1971)............................. 20,21

* Cases or authorities chiefly relied upon 
marked by asterisks.

are

IV



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

No. 77-2059 
No. 77-2060

BARBARA COPELAND,
Plaintiff-Appellant,

- v -
SAMUEL R. MARTINEZ,

Defendant-Appellee.

On Appeal From The United States District Court 
For The District of Columbia

BRIEF FOR PLAINTIFF-APPELLANT

Question Presented
Did the District Court err in making an award of 

attorneys' fees in favor of the United States in this 
Title VII action in light of the language of the statute 
prohibiting such as award?*

Reference to Parties and Ruling 
On August 27, 1977, Judge John H. Pratt issued

fildings of fact and conclusions of law. Cope1and_v.

* This is the first appearance of this case before 
this Court.



Martinzez, 435 F.Supp. 1178, 14 EDP 1(7 816 (D.D.C. No.
76-1156, August 23, 1977), which are reproduced in the
Appendix at pp. 13-20. (Hereinafter referred to as
"A" .")

Statute Involved 
42 U.S.C. §2000e-5(k):

In any action or proceeding under this 
subchapter the court, in its discretion, 
may allow the prevailing party, other than the 
Commission or the United States, a reasonable 
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.
Pub.L. 88-352, Title VIII, §706, July 2, 1964,
78 Stat. 259; Pub.L. 92-261, §4, Mar. 24, 1972,
86 Stat. 104.

STATEMENT OF THE CASE
This is an action brought pursuant to 42 U.S.C. 

§2000e-16(c) of Title VII of the Civil Rights Act of 1964, 
as amended by the Equal Employment Act of 1972. It was
brought on behalf of a Black woman employed by an agency 
of the federal government, the Community Services Adminis­
tration, as a GS-11 Program Specialist in the office of 
Human Rights. In her complaint, plaintiff, appellant 
here, alleged that she had been denied promotion to grade 
GS-12 because of her race (Black) and sex (female). (App.
5-9. )

Following the trial, the District Court entered an 
opinion and order on August 23, 1977, awarding judgement
to the defendant and dismissing the action. (A. 13-20).
In its decision, the court found that the action was

2



without merit and was brought for the purpose of harass­
ment and in bad faith. The court found no credible 
evidence that the plaintiff had been discriminated 
against, or had suffered harassment or reprisal for her 
filing discrimination complaints. The court also found 
that both the plaintiff and her two witnesses were 
biased against they immediate supervisor and that their 
testimony was not credible. The testimony of defendant's 
witnesses, on the other hand, was found to be credible and 
to be supported by documentary evidence.

The Court found that the evidence demonstrated that 
plaintiff and one of the witnesses intentionally, had 
harassed her superiors "by virtually every means available 
including use of the EEO process to bring baseless charges 
of discrimination." The present action was found to be 
"the culmination of a long series of intentionally vindic­
tive and abusive actions taken to harass her superiors" 
and the agency management. Thus the Court concluded, 
"plaintiff acted vexatiously, maliciously and in bad faith 
in bringing and maintaining this action and has intention­
ally abused the judicial process." (A. 18.)

As a result of these findings the district court 
awarded costs and attorneys' fees in favor of the defen­
dant and against the plaintiff. (A. 19-20.) Subsequently, 
on the basis of a submission made by the United States 
Attorney, judgment was issued on October 7, 1977 in a

3



total amount of $3,520.89 which included attorneys' fees 
in the amount of $3,193.40. (A. 56.) Plaintiff filed a 
timely notice of appeal limited to the award of counsel 
fees against her. (A. 23, 57.) The sole issue presented 
in this case is whether Title VII of the Civil Rights Act 
permits awards of counsel fees on behalf of the United 
States under any circumstances.

SUMMARY OF ARGUMENT 
I.

The sole issue presented in this case is whether 42
U.S.C. §2000e-5(k) is an absolute pr oh ibition' against an
award of counsel fees to the Un ited States under any
circumstances.

II.
A. The defendant head of the agency in a Title

VII action is but the nominal defendant. The real party 
in interest is the United States. Therefore, the award of 
fees here was in favor of the United States.

B. The first canon of statutory construction is 
that statutes should be given their plain meaning. Here, 
the statute clearly and without qualification bars all fee 
awards in favor of the United States.

C. The statutory remedy under 42 U.S.C. §2000e-16 
is exclusive. Therefore, the only basis for deciding 
whether a fee award is proper is found in the provision in
§2000e-5(k ).

4



III.
The legislative history of both the 1972 Act and 

other Civil Rights Acts is fully consistent with the plain 
meaning of the statute. Therefore, Congress clearly
intended to bar all fee awards in favor of the United
States in civil rights actions, regardless of whether it
was plaintiff or defendant.

IV.
The policy behind the Civil Rights Act and the 

counsel fee provision therein would be thwarted if the 
United States could obtain fees. Since private parties 
are the only ones who can enforce the provisions of Title 
VII against federal agencies, the mere threat of an award 
would have an inhibiting effect on vigorous enforcement.

ARGUMENT 
I.

INTRODUCTION
We wish to make it clear what issues are not being 

raised on this appeal. No appeal has been taken from that 
part of the of the Court's judgment dealing with the 
merits of the discrimintion claim. No challenge been made 
to the award of costs against the plaintiff, or is appel­
lant challenging the findings of the court that this acton 
was brought vexatiously, in bad faith and for the purpose 
of harassment. Thus, it is conceded that if this action 
were brought against a private employer the award of

5



counsel fees against the plaintiff would have been appro­
priate under prevailing standards. See, e . g , Carrion v. 
Yeshiva University, 535 F.2d 722 (2nd Cir. 1976 ); Christians- 
burg Garment Co. v. EEOC, 46 U.S.L.W. 4105 (Jan. 23, 1978).

Rather, appellant contends that the specific lan­
guage of 42 U.S.C. §2000e-5(k) which governs in this case, 
is an express prohibition of an award of counsel fees on 
behalf of the United States under any circumstances. As 
we will show below, the language of the statute, relevant 
legislative history and the policy considerations underly­
ing Title VII generally, and the counsel fees provision 
specifically, militate against an award of counsel fees on 
behalf of the United States regardless of the circum­
stances. Even when a law suit is found to have been 
brought vexatiously and in bad faith, and thus would 
qualify for an award of counsel fees on behalf of a 
prevailing defendant if the defendant were other than an 
agency of the United States, an award is improper in an 
action against a federal defendant.

II.
TITLE VII PROHIBITS AN AWARD OF COUNSEL
FEES ON BEHALF OF THE UNITED STATES

A . The Award in This Case Was in Behalf 
of the United States

The governing provision of Title VII, 42 U.S.C 
§2000e5(k) states:

6



1-UirH

In any action or proceeding under this subchap­
ter the court, in its discretion, may allow the 
prevailing party other than the [Equal Employ­
ment Opportunity] Commission or the United 
States, a reasonable attorney's fees as part of 
the costs. . . .

The language of the section thus seems clear that the
United States may not under any circumstances receive
counsel fees in a Title VII action. The fact that the
nominal defendant in a Title VII action brought against a
government agency is the head of the agency and not the
United States is not dispositive. It is well established
that an action against an officer of the United States
acting in his official capacity is an action against the
United States itself. Thus in Gnotta v. United States,
415 F.2d 1271, 1277 (8th Cir. 1969) the Court set out the
following factors to determine the circumstances under
which suits against federal government officials operate
against the United States:

A suit against an officer of the United States 
is one against the United States itself "if 
the decree would operate against" the sovereign; 
Hawaii v. Gordon, 373 U.S. 57, 58, 83 S.Ct.
10 5 2 , 10 53 , 1 0 L . E d . 2 d 1 91 ( 1 963 ); or if
"the judgment sought would expend itself on the 
public treasury or domain, or interfere with 
the public administration" Land v. Dollar,
330 U.S. 731 , 738, 67 S.Ct. 1009 , 91 L.Ed.
1209 (1947); or if the effect of the judgment 
be "to restrain the Government from acting or 
to compel it to act." _Larson v. Domestic & 
Foreign Commerce Corp. , 337 U.S. 682, 704 , 69
S.Ct. 1457, 1468, 93 L.Ed. 1628 (1949).!/

1/ See, also, 
an Bronx Postal 
9 6 5 ) ; Kennedy_

Dugan v. Rank, 372 U.S.609(1963); Manhat- 
Union v. Gronowski, 350 F.2d 451 (D.C.Cir. 
v. Rabinowitz , 318 F.2d 181 (D.C. Cir.

7



Measured by these standards, the United States is clearly 
the real party in interest in an action brought by federal 
employees under Title VII.

Of course, any award of counsel fees in this case, 
as in any other Title VII action brought against an agency 
of the federal government, will go not to the attorneys 
representing the agency, whether the United States Attor­
ney, attorneys from the Department of Justice or the 
agency. Nor will it go to the head of head of the agency 
himself; rather the fees will go into the Treasury of the 
United States in precisely the same way as will any other
judgement or award made on behalf of an official of the

2/
United States acting in his official capacity. Thus, 
there is no question but that the award made here does 
indeed allow the United States an attorneys' fee as part 
of its costs, and thus flies in the face of the clear 
language of the statute.

1/ [Continued]
1963), aff'd on other grounds, 376 U.S. 605 (1964);
McQueary v. Laird, 449 F.2d 608 (10th Cir. 1971); Ritter
v. Morton, 513 F. 2d 942 (9th Cir. 1975); Sierra Club v. 
Hickel, 467 F . 2d 1048 ( 6th Cir. 1972); Simons v. Vinson,
394 F . 2d 732 ( 5th Cir. 1968 ). 28 U.S.C. §2412, which
provides generally for the award of costs on behalf of 
prevailing parties in any action brought by or against the 
United States, indicates the parity between agencies, 
officials of the United States acting in their official 
capacity and the United States itself.
2/ This is required by a ruling of the Comptroller 
general, 47 Comp. Gen. 70 (1967).

8



B . The Plain Meaning of the Statute
Prohibits An Award of Counsel Fees

In the face of the prohibition, the Court below 
awarded attorneys' fees to the defendant by relying upon 
its equitable power to shift the costs of legal represen­
tation to a losing party where that party has acted 
in bad faith, vexaciously, wantonly or for oppressive 
reasons. See F.D. Rich v. Industrial Lumber Co., 417 U.S. 
116, 129 (1974). Under the "American rule" prevailing
litigants are not ordinarily entitled to recover reason­
able attorneys' fees from their adersaries. Nevertheless,

- 7 -
the Courts have traditionally recognized certain excep­
tions to the general principle. Where losing parties have 
been found to have acted maliciously and in bad faith in 
bringing lawsuits, Courts have shifted attorneys' fees 
"even in the absence of statute or contract." Ibid.
A review of the cases, however, indicates that the Courts 
have exercised their equitable power only in extraordinary 
situations and only in the absence of a statutory prohibi­
tion against fee shifting. See, e.g., Vaughan v. Atkinson, 
369 U.S. 527 (1962); McEnteggart v. Cataldo, 451 F .2d 1109 
(1st Cir., 1971); Bell v. School Bd. of Powhatan County, 
321 F.2d 494 (4th Cir. 1963); Rolax v. Atlantic Coast Line 
R. Co . , 186 F. 2d 473 (4 th Cir. 1951). Cf. Byram Concre- 
tanks, Inc, v. Warren Concrete Products Co., 374 F.2d 649 
(3rd Cir. 1967 ) .

9



Here, of course, there is an explicit and unqualifi­
ed prohibition against an award of fees in favor of the 
government. The lower Court's decision therefore is in 
conflict with the first and most basic canon of statutory 
construction, viz., that statutes are to be given their 
plain meaning. See, e.g., Chandler v. Roudebush 425 U.S. 
840, 848 (1976). It requires a rather tortuous construc­
tion of §2000e-5(k) to conclude that it does not prohibit 
absolutely an award of counsel fees on behalf of the 
United States. As the Supreme Court has stated,

"The plain, obvious, and rational meaning 
of a statute is always to be preferred to 
any curious, narrow, hidden sense that nothing 
but the exigency of a hard case and the inge­
nuity and study of an acute and powerful 
intellect would discover.

Lynch v. Alworth-Stephens Co., 267 U.S. 364, 370 (1924). 
Appellant respectfully urges that such a construction is 
unwarranted, artificial, and, as will be discussed below, 
cannot be squared with basic policy considerations under­
lying the counsel fee provision as it relates to actions 
against the United States.

We are aware that this Court in Grubbs v. Butz, 548 
F . 2d 973, 976, n . 15 (D . C . Cir . 1976), did suggest that it 
"is at least uncertain" that the statute bars awards on 
behalf of the government when it is the defendant. With 
all respect to this Court, it must be pointed out that the 
footnote is dicta. In Grubbs, the Court suggests that

10



because the legislative history of the 1976 Act is silent 
as to any intent to bar or to allow awards of attorneys' 
fees on behalf of aprevailing federal defendant, the 
statute should not be read to abrogate the American Rule 
allowing such an award. The Court further pointed 
out that the prohibition on awards of counsel fees in 
Title VII was originally inserted in the 1964 Act when the 
United States could only act as a plaintiff. Thus, it is 
suggested, the language need not be read to bar awards 
when the United States is a defendant.

We would urge, however, that there is an entirely 
different interpretation to be placed on the absence of 
legislative history which is fully consistent with the 
language of the statute. That is, it was so clear to 
Congress that the United States should not get counsel 
fees under any circumstances, that no need whatsoever was 
seen to spell that out in the legislative history since 
the statute already prohibited it. This silence on the 
part of Congress cannot in any way lead to the conclusion 
that it was intended that the statute was to mean other 
than what it states. To the contrary, as we will show 
below, the legislative history of the 1972 Act and other 
civil rights attorney's fees statutes, together with the 
policy considerations behind Title VII generally and the 
counsel fee provision in particular are fully consistent 
with the conclusion that the statute was clearly meant to

11



not allow the United Statesdo exactly what it says, viz., 
counsel fees under any circumstances.

C . The Statutory Remedy Provided for Federal
Employees Is Complete and Exclusive

Although courts, in the absence of explicit statu­
tory authorization have provided equitable relief in the 
form of attorneys' fees to prevailing parties "where 
compatible with sound and established equitable princi­
ples" ( Yablonski v. United Mine Workers of_America, 
151 U.S. App. D.C. 253, 258 , 466 F.2d 424, 429 ( 1972),
Congress has undoubted power to circumscribe such relief. 
Hall v. Cole, 412 U.S. 1 , 9 ( 1973). The Supreme Court
pointed out in Fleischmann Distilling Corp. v. Maier 
Brewing Co. , 386 U.S. 714 , 720 (1967) that when a statu­
tory cause of action expressly provides remedies for 
vindication of the cause, "other remedies should not be 
readily implied." Although Fleischmann has been narrowly 
construed, it is still applicable where the available 
remedies have been "meticulously detailed" (Hall v. Cole, 
supra, at 9) o^ where Congress has definitely set its face 
against awards of incidental relief (Hall v. Cole, supra, 
at 12). As it applies to federal employees, Title VII 
fits within these narrow confines. Noting that Title VII 
provides for "a careful blend of administrative and 
judicial enforcement powers," the Supreme Court found in 
Brown v. General Services Administration, 425 U.S. 820,
833 (1976) that "the congressional intent in 1972 was to

12



create an exclusive, preemptive administrative and judi­
cial scheme for the redress of federal employment discrim­
ination" 425 U.S. at 829. Thus, the counsel fee provision 
in §2000e-5(k) exclusively governs the circumstances under 
which such fees may, or may not, be awarded. 425 U.S. at 
832.

Ill.
THE LEGISLATIVE HISTORY OF VARIOUS COUNSEL FEE 
PROVISIONS IN THE CIVIL RIGHTS ACTS SHOW CLEAR 
CONGRESSIONAL INTENT NOT TO PERMIT THE UNITED 
STATES TO RECOVER COUNSEL FEES AS EITHER A 
PLAI_NT I_F F_OR_A_DEFENDANT_________________________
As this Court noted in both Grubbs v. Butz, 548 F 2d 

973 (D.C. Cir. 1976), and Parker v. Califano, 561 F .2d 320 
(D.C. Cir. 1976), the legislative history of the 1972 
Act relating to the counsel fee provision is sparse. What 
there is, however, is consistent with the statute's 
prohibiting awards in the government's favor. Most 
directly relevant is the exchange between Senators Domi­
nick and Javits noted in Parker at 561 F.2d at 335-336. 
Senator Dominick had submitted an amendment that would 
have struck 42 U.S.C. §2000e-16(d), the provision that, 
inter alia, makes the counsel fee provision of §200J3e-5(k) 
applicable to suits brought against government agencies.

Senator Javits offered an amendment that struck, in 
turn, that part of the Dominick amendment, explaining:

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

13



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 commence­
ment of the action without the payment of 
fees, costs, or security.

Mr. President, that is a very im­
portant right for the individual, just as 
it is a very important right for a Government
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 Government 
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 to when it comes to a 
Federal Government employee who has to sue and 
is also a person, because that is the general­
ity of the cases, of modest means.

So the motion which I make is to strike 
out the provision 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.

18 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 lan­
guage was included, as the specific provi­
sions of the bill deal only with Federal 
employees for whom we had a different pro­
cedure. 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

14



was thought to be inappropriate to the spe­
cialized grievance procedures adopted in 
committee for Federal employees. A closer 
reading of sec. 706(g) through (w) [the provi­
sions that would have been stricken by the 
proposed Dominick amendment] does indicate that 
language for providing attorney's fees and 
waive court costs are applicable.

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

118 Cong. Rec. 956 ( 1972) .
As this Court noted in Parker, (561 F . 2d at' 336 ) the 

concern of both Senators was that the rights of federal 
employees vis-a-vis attorneys' fees be the same as that of 
other litigants. Thus, it is clear that the Senate 
sought to ensure that the counsel fee provision apply to 
suits where the government was a defendant, and that it 
wished the same standard for recovery that governed other 
Title VII litigation to apply to such cases. In such 
cases, i.e . , where the government is the plaintiff, it 
cannot recover fees under any circumstances. Hence, it 
must be concluded it was intended that it not recover 
fees under any circumstances when it was the defendant as 
well. At the very least, the legislative history can in 
no way be read to show an intent contrary to the statute's 
plain meaning.

The second bit of legislative history, also noted in 
Parker, (561 F . 2d at 336-338 ), relates to an amendment

15



introduced by Senator Gambrell that would have required 
the EEOC to grant attorneys' fees to small businesses for 
work done during administrative cease and desist proceed­
ings. Although the provision, in the form of a modifica­
tion authored by Senator Mondale, was dropped in the 
bill's final version (see, 561 F .2d at 337-338), it did 
demonstrate a concern with the imbalance of resources 
between the federal government and opposing parties 
of limited means. Of course, the imbalance is even 
greater when the plaintiff is a single government em­
ployee with no significant resources besides her salary. 
An absolute prohibition on the government obtaining a fee 
award is consistent with Congress' general intent that 
the difference in resources be somewhat ameliorated.

When the legislative history of the orginal counsel 
fee enactment is turned to, it is also scant. As this 
Court correctly pointed out in Grubbs v. Butz, supra, 
when the counsel fees provision in Title VII was first 
enacted in 1964, the United States could only act as a 
plaintiff since the Act did not allow for Title VII 
actions to be brought against the United States as an 
employer. Thus, Congress then had no intention one way 
or the other as to whether the government should be 
entitled to recover counsel fees if it were a defendant. 
The legislative history does indicate that Congress was 
aware that the United States had overwhelmingly greater

16



resources as compared to litigants opposed to it. This 
inequality of resources would, of course, be compounded if 
the United States were allowed in addition addition to 
recover counsel fees when it was the prevailing party. It 
is this great imbalance in resources thatl generally has 
led Congress to prohibit the government from obtaining 
fees.

Turning to the counsel fee provisions in other civil
rights acts, although they generally provide that the

3/United States cannot get fees, their legislative 
history is unilluminating with the single exception of the 
Civil Rights Attorney's Fees Act of 1976, now codified as 
part of 42 U.S.C. §1988. In the first place, Congress 
clearly intended that the standards for fee awards in 
civil rights cases be uniform. Thus, the Senate Report 
states that the Act "follows the language of Title II and 
VII of the Civil Rights Act of 1964 ... and section 402 of 
the Voting Rights Act Amendments of 1975," and that, 
"It is intended that the standards for awarding fees be 
generally the same as under the fee provisions of the 1964 
Civil Rights Act" S.Rep. No. 94-1011, (94th Cong. 2nd
Sess.) pp. 2, 4.

In the debate of the bill on the floor of the House 
it was clearly and unambiguously stated by the sponsors

3/ See, 20 U.S.C. §1617 (school desegregation cases); 
42 U.S.C. §19731 (voting cases); 42 U.S.C. §1988 (civil 
rights cases generally). The Fair Housing Act of 1968 has 
a counsel fee provision only in the section authorizing 
suits by private parties, 42 U.S.C. §3612.

17



of the bill that the United States was barred from
recovering attorneys' fees in civil right cases when it 
was the defendant. Thus, in the following colloquy 
between Representatives McClory and Drinan it was stated 
(122 Cong. Rec. H12152 (daily ed- ) ) :

MR. McCLORY .★ * ★ *
It is my understanding that the Senate 

bill provides for the allowance of fees to 
attorneys who prevail, for the plaintiff if 
the plaintiff prevails in court, or for the 
defendant if the defendant prevails, or with 
respect to suits which are brought involving 
the Internal Revenue Code, if the defendant 
prevails and can show that such action was 
filed in bad faith. In other words, the United 
States is excluded from any attorneys' fees 
under any thesis or under any hypothesis that 
we might present with regard to this legisla 
t ion.

★  ★  *

There is a prohibition against the 
United States recovering attorneys' fees either 
in a civil rights case or in income tax matters.
MR. DRINAN. That is pervasive in the whole 
United States Code. . . .

In a subsequent colloquy between Representatives White 
and Drinan, the floor leader of the bill, the latter 
made the Bill's intent clear (122 Cong. Rec. H12155 
(daily ed.).):

MR. WHITE . . . .
Does this act we are attempting to 

pass now supersede the court decisions.
In other words, would the defendant get an 
equal opportunity to receive attorneys fees, or 
is the defendant who prevails going to be 
limited as to whether or not there is a suit 
brought maliciously or in harassment or with 
other qualifying features?

18



MR. DRINAN. If the gentlemen will yield,
I will state that the U.S. Government may 
not have attorney fees awarded. In other 
cases, it belongs in the proper discretion of 
the judge. If the suit is a vexatious and 
harassing nature, the defendant should be 
given his reasonable attorney fees. I think 
it is all carefully regulated by a body of 
law which goes back at least 50 years. (Em­
phasis added. )
From the foregoing it is evident that Congress was 

persuaded in 1976 that previous civil rights laws provid­
ing attorneys fees to prevailing parties other than the 
United States had established an absolute bar to awards of 
attorney fees to the United States. Although this view is 
not as persuasive as would be statements made contempora­
neously with passage of the Civil Rights Act of 1964 or 
the 1972 amendments to the Act, it deserves weight "as a 
secondarily authoritative expression of expert opinion." 
Bobsee Corp. v. United States, 411 F.2d 231, 237, n.18 
(5th Cir. 1969); Parker v. Califano, supra, at 339. Taken 
together with the plain language of 42 U.S.C. §2000e-5(k). 
it evinces a clear congressional intent and understanding 
that the United States is not entitled to attorneys' fees 
with respect to any claim litigated under the provisions 
of Title VII of the Civil Rights Act of 1964, as amended.

19



IV.
POLICY CONSIDERATIONS MILITATE AGAINST 
THE RECOVERY OF ATTORNEY'S FEES BY THE 
UNITED STATES

The policy considerations underlying both the
extension of Title VII to cover the United States and the
counsel fee provision itself do not allow an award of
counsel fees on behalf of the United States. When it
passed the 1972 amendment, Congress was acutely aware of
the necessity for correcting entrenched discrimination in
the federal service. The Senate Committee Report on S.
2515, the Senate version of the 1972 Act, emphasizes
the special importance of moving against discrimination in

1/Federal Employment:
"The Federal government, with 2.6 million 
employees, is the single largest employer 
in the Nation. It also comprises the 
central policymaking and administrative 
network for the Nation. Consequently, 
its policies, actions, and programs 
strongly influence the activities of 
all other enterprises, organizations and 
groups. In no area is government action 
more important than in the area of 
civil rights."—

During the debates and in the House and Senate reports, 
excerpts were taken from a study released by the Civil 
Service Commission, Minority Group Employment in the

4/ The legislative history of the 1972 amendments of
Title VII has been compiled in Sub Comm, on Labor of the 
Senate Comm, on Labor and Public Welfare, Legislative 
History of the Equal Employment Opportunity Act of 1972 
(Comm. Print 1971) (hereinafter "Legislative History").
5/ Id. at 421.

20



Federal Government, (1970), which showed that minorities
represented 19.4% of the total employment in the federal
government, but that they were heavily concentrated in the

6/lower grade levels. In view of these statistics, the 
Senate Committee Report explained:

The present act, which only allows 
the Commission to pursue charges through the 
informal methods of persuasion and concilia­
tion, has, as already shown, proven to be 
seriously defective in providing an effective 
Federal remedy for violations of Title VII . . .

. . . Since most Title VII complainants
are by the very nature of their complaint 
disadvantaged, the burden of going to court, 
initiating legal proceedings by retention of 
private counsel, and the attendant time delays 
and the legal costs involved, have effectively 
precluded a very large percentage of Title VII 
claims from ever being decided. This disparity 
between complainants and respondents in Title 
VII litigation has been recognized by the 
courts which have characterized such litigation 
as a "modern day David and Goliath confronta­
tion." In such situations, the public has an 
overriding interest in protecting the indi­
vidual from the denial of those rights which 
Congress has specifically provided.7/
Congress believed, then, that the neeed for aggriev­

ed federal employees to bring Title VII suits was especial­
ly great; therefore, the deterrent of the prospect of 
liability for fess if the employee loses, would be partic­
ularly inappropriate.

6/ Ld. at 422. 43.9% of the workers in the lowest 8 of
the 18 GS (General Schedule) grades were minority. 
Similarly, 76.7% of women employees were in grades 
GS-1 through GS-6.
7/ Id. at 426.

21



In addition to these general concerns, when one 
looks to the enforcement scheme established by Title VII, 
it is apparent that there is a clear basis for distin­
guishing between the federal government and other# defen­
dant employers when it comes to attorney's fees. 
The federal government has substantial responsibility for 
enforcing the provisions of Title VII against private and 
state and local government employers. The responsibility 
goes beyond administrative enforcement since the EEOC and 
the Department of Justice have the authority both to bring 
originally, and to intervene in, court actions. Because a 
major role in enforcement of the Act lies with the public 
attorney general, it was reasonable for Congress to decide 
that not all actions by would be private-attorneys general 
should be encouraged. Thus, counsel fees are obtainable 
by a private or state or local government employer in 
cases that are found to have been unfounded and vexatious.

As this Court has pointed out in Parker v._Cal ifano,
supra, on the other hand, the sole means of court enforce­
ment of Title VII against the federal government lies with 
private persons. There is no public attorney general who 
can bring such lawsuits. Given this fact, and given the 
vast imbalance of resources already existing between a 
single federal employee on the one hand, and the federal 
government on the other, it was wholly reasonable for 
Congress to decide that the i.n terrorem effect of the

22



possibility of an award of counsel fees under any circum­
stances would seriously inhibit the enforcement of the 
Act.

Indeed, Congress made precisely this judgment when 
it, in 1964, barred awards of counsel fees in behalf of 
the government as a plaintiff. To our knowledge, the 
United States has never sought counsel fees under the
American rule when it was the plaintiff in a Title VII

8/
action. However, it is possible for a defendant to 
litigate a case in bad faith and with "obdurate obsti- 
nance"; counsel fees have indeed been awarded to prevail­
ing plaintiffs under such circumstances. See, e .g ., Bell 
v. School Board of Powhatan County, 321 F.2d. 494 (4th
Cir. 1963). The policy considerations underlying Title 
VII - the effective and speedy ending of employment 
discrimination - would be served by allowing the United 
States counsel fees where a defendant employer has liti­
gated in bad faith and for delay. Nevertheless, Congress

8/ Indeed, in the brief recently filed by the United
States in Christiansburg Garment Co. v EEOC, U.S. S.Ct. 
No. 76-1383, it is acknowledged that under 2000e-5(k), 
"...the Commission cannot recover attorney's fees as 
plaintiff." Brief for Respondent, p. 24.

23



clearly declined to allow them. To permit counsel 
fees to the government when it is the defendant employer 
would be contrary to the policies of the statute, and 
would create a dissymmetry that is without justification.

CONCLUSION

9/

For
Distr ict

the foregoing reasons, the decision of the 
Court should be reversed.

Respectfully submitted,.^n  V 1

^  "  %  <r. .
ALEXANDER G. PARK

910 17th Street, N.W. 
Suite 812
Washington, D.C. 20006 
(202) 331-1025

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
BILL LANN LEE

10 Columbus Circle 
Suite 2030
New York, New York 10019 
(212) 586-8397

Attorneys for Plaintiff-Appellant

9/ See e.g . , the remarks of Rep. Senner at 110 Cong. 
Rec. 1640 (1964), discussing the attorneys' fees provision 
in title VII of the 1964 Act. After pointing out that 
under the section, the language of which is identical to 
that enacted in Title VII, private plaintiffs and defen­
dants could get attorneys' fees as part of the costs, Rep. 
Senner stated, "The United States, however, could not 
recover any amount for attorney's fees if it won. . . . "

24



CERTIFICATE OF SERVICE
I hereby certify that Ihave served copies of the 

Appendix and Brief for Plaintiff-Appellant on counsel for 
the Appellee by depositing the same in the United States 
mail, first class mail post paid, addressed to:

Paul Blankenstein, Esq. 
Robert E. Kopp, Esq. 
Appellate Section 
Civil Division 
Department of Justice 
Washington, D. C. 20530

Done this 30th day of January, 1978.

attorney Plaintiff-Appellant