Dorothy C. Parker v. Joseph A. Califano, Jr., Secretary of Health, Education and Welfare

other no need to address We see Accordingly, parties.

issues raised Court’s approval

we vacate District procedure and remand for compensation proceedings not inconsistent with

further opinion.

So Ordered.

Dorothy C. PARKER CALIFANO, Jr., Secretary

Joseph A.

Health, Education and

Welfare, Appellant.

No. 76-1416. Appeals,

United States Court of

District Columbia Circuit.

Argued March

Decided June

321 Blankenstein, Atty., Dept. policy of Jus concerns convinces us that a District Paul C., tice, whom Rex E. Washington, D. with Court does have such discretion and that Gen., Silbert, Lee, Earl J. U. Atty. judgment Asst. S. below should be affirmed. Kopp, Atty., Dept. and Robert E. Atty.,

Justice, C., D. were on the Washington, I. THE FACTS brief, appellant. for February appellee On Dorothy C., Singer, Washington, D. Linda R. Parker complaint filed an administrative appellee. (OE) with the Office of Education Burke, L. and Roderic V.

John Jr. O. Health, Department of Education and Wel- C., Washington, D. filed a brief on Boggs, Parker, OE, (HEW). employee fare an Washington Lawyers’ Committee behalf alleged that she had been discriminated Rights Under Law as amicus curi for Civil against grounds on racial and sexual urging affirmance. ae sought promotion posi- immediate from her appropriate tion as a to a GS-9 GS-14 BAZELON, Judge, Before Chief pay. back ROBB, Judges. WRIGHT Circuit filed, Shortly after the complaint was Equal Employment began OE’s Office investigation charges. of the discrimination investigative Sep- An on report filed appellee tember 1973. It concluded that against had been discriminated and recom- WRIGHT, Judge: Circuit J. SKELLY mended that promoted she be GS-13. was taken Apparently no further action appeal is from the District Court’s This 1974 when HEW spring until requiring appellant pay attor judgment1 GS-11, appellee moted with assurances neys’ by appellee. fees incurred brought promoted in a suit that she would soon be GS-135 presented is whether issue original investigative report under Title as the had rec- employee a federal VII of 1975, however, spring In the 19642—in which the ommended. Act of Civil stating its final determination fed HEW issued “prevailing party”3 is —a disregard investigative it would has discretion to award that eral District Court report and take no further remedial action compensation fees that include appellee’s on discrimination claim. legal performed services in connection proceedings. with related administrative Consequently, appellee GS-11— —still statutory language, May review of the filed the instant suit on 1975.6 Our law, legislative history,4 Appellant July case and relevant filed his answer on [sic], F.Supp. Matthews opinion portions Parker 1. to this of those a discussion (D.D.C.1976). legislative history appellant ap- the pellee respective support posi- cite in of their VII is at 42 2000e to Appellee §§ 2. Title codified U.S.C. tions. 1975). (1970 Supp. V 2000e-17 brought VII, & 717(c) pursuant suit of Title § her appellee statement 5. The District Court’s 1975). 2000e-16(c) (Supp. V § U.S.C. promoted would soon be was assured she GS-14, apparently F.Supp. 2000e-5(k) (1970) appli- as made § U.S.C. 2000e-16(d) (Supp. typographical V cable 42 U.S.C. error. § 1975). Although appellant in the contended pre- appellee was not the District Court yet Although issued its had not statute, vailing party within the decision, days passed appel- final had since argument appeal. has been abandoned on Ap- complaint. lee had filed her administrative had, therefore, sufficiently pellee exhausted the legislative 4. After careful examination of process entitled to in- and was history, Congress did intend we conclude 717(c) of Title action. Section stitute the award of fees for to authorize VII, 2000e-16(c) (Supp. V U.S.C. question the services in here. In the interest of completeness, appendix we have set forth as an tution, allegations complaint. in the Bolling and denied all Sharpe, [74 denials, less than two months Despite these 98 L.Ed. and statuto- 884] 18, 1975—HEW September law, issued ry 7151,” later —on specific imple- appellee to the effect that a formal decision menting legislation was lacking and “the against and should had been discriminated effective availability of either administra- promoted to retroactively GS-13 with tive or relief was far from sure.” pay.7 back appropriate fact, Id. federal employees faced nu- merous and difficult obstacles in attempt- 14, On November 1975 the District Court ing to enforce their right of freedom from approving entered an order this settlement employment discrimination. Hackley v. reserving question of the suit but Roudebush, 171 U.S.App.D.C. considering fees. After par- 108, 115, 128-129, 132, 133-136 & n.67 ties’ submissions on the question, the Dis- (1975). April trict Court on 1976 awarded attor- $8,770.36.8 neys’ fees of The award includ- This anomaly was eliminated in by compensation ed for time spent on the case the addition of Section 717 to Title VII of at both “administrative and levels.” the Civil Rights Act of 1964. See 42 U.S.C. [sic], Parker v. Matthews 411 F.Supp. 1975).11 2000e-16 V (Supp. Hackley § (D.D.C.1976). appeal This followed.9 Roudebush, supra, 529 F.2d at 115-116. 717(a) VII, Subsection of Title 42 U.S.C. II. THE STATUTORY FRAMEWORK 2000e-16(a) (Supp. 1975), V provides § Title VII of the Civil Act of personnel affecting actions employees “[a]ll * * * prohibits employment discrimination applicants or employment for race, color, sex, religion, based on or nation- agencies executive the United [of States] origin. VII, al Sections 704 of Title shall be made free any from dis- 2000e-2,2000e-3 (1970 Supp. U.S.C. & V race, color, §§ crimination based on religion, 1975). Originally, however, sex, statutory origin.” or national To effectuate this prohibition inapplicable was to federal em- 717(b) (c), subsections ployees. 2000e(b). Section 42 U.S.C. 2000e-16(b), (c) § U.S.C. (Supp. 1975), § V GSA, 820, 825, Brown v. See 96 establish complementary administrative and 1961, 1964, L.Ed.2d 402 provisions. enforcement Subsection Thus, “[ajlthough employment (b) dis- authorizes the Civil Service Commission clearly crimination violated both the Consti- to provisions enforce the (a) subsection agency May 5, 1976, however, 7. The final decision appellant had been issued On ap- hearing pursuant pellee without an administrative stipulation to agreement entered into a appellee’s request. providing during pendency See 5 C.F.R. 713.- ap- § of the 217(b)(3) (1977). peal appellee request this court “will not $8,770.36 payment * * by awarded Appellant district court question 8. JA raises the broad Appellant right states that “the whether fees for services at the administrative government litigants as well as other to an challenge level be awarded. He does not stay pending appeal automatic type of this specific by arithmetical calculations used money judgment firmly is not settled” and re- the District arrive at the amount quests appropriate that at an time this court awarded. question. Appellant’s address this br. at 5-6 question n.8. Because the has not been briefed paid 9. The District Court ordered the fee argued however, appeal, or on this and because appellee’s days counsel within ten of the date appellee agreed request not to the fee award Upon receipt payment of the order. of such appeal pending, express while this we no appellee counsel was to reimburse subject. views on the payments she had made to counsel. F.Supp. Appellant stay, 88-352, at 1069. (enacted moved to 10. Pub.L. No. 78 Stat. 253 pending appeal, part July directing of the order payment of the fee a date certain. JA 59. April The District Court denied that motion on 11. Enacted as Equal Employment 11 of the § temporarily stay but did Opportunity the order Act of 1972 on March requiring payment. 92-261, JA 59. Pub.L. No. § Stat. 111. remedies, 717(d) VII, including Subsection of Title appropriate U.S.C. “through employees hiring or 2000e-16(d) 1975), reinstatement V (Supp. plays a key “rules, regu- to issue pay,” without back appeal. in this It states: “The provi- as it deems lations, and instructions orders 706(f) sions of through (k) section U.S.C. [42 carry out its appropriate” necessary and 2000e-5(f) 2000e-5(k) through (1970 §§ & Act, and to review under responsibilities 1975)], Supp. applicable, V as govern shall plans that employment opportunity equal civil brought actions hereunder.”12 The each annually submitted incorporated, subsections thus which until department. Title VII was amended in 1972 applied only 717(c) permits aggrieved Subsection employees, sector govern such employment applicant employee or venue, relief, issues scope and —of District Court action in a federal file a civil significance foremost for our purposes —at- discrimi- her claim of to review torneys’ Specifically, fees. 706(k), Court, filing in District Before nation. 2000e-5(k) provides: certain employee must meet any action or proceeding under this the Initially, prerequisites. administrative court, agency subchapter in the the in discretion, seek relief its complainant must against allegedly discriminated that has may allow the prevailing party, other with relief obtained her. If not satisfied than the Commission or the United seek agency, complainant may the from the States, a reasonable fee as administrative review with the Civil further costs, and the Commission and the Alternatively, the Commission. Service United shall be liable States for costs the receipt days within 30 complainant, private person. same as a decision, .may agency’s the final notice of The 717(d) effect of coupled Section with without in federal District Court file suit is, therefore, 706(k) Section to allow a fed- to the Civil Commission. appealing Service court, discretion, eral in its to award rea- Commission, to the she appeal she does If attorneys’ sonable fees to a federal employ- the days within 30 Commis- may file suit event, ee or any applicant “In who is the prevailing sion’s final decision. party if, a civil action after complainant may file “any proceeding” action or under Title charge or days filing from the Despite apparent VII. straightfor- or Civil Service appeal, attorney provision, wardness of the taken final action.” has not Commission however, parties to this appeal are GSA, supra, v. Brown sharply proper interpreta- divided as to its Court at 1968. Brown S.Ct. and, particular, tion as to the breadth to the “exclu- provides held that Section the single phrase “any be accorded action or sive, judi- administrative and pre-emptive proceeding.” cial scheme for the redress of federal em- Appellant appellee agree that this Id. at ployment discrimination.” courts language permits to award attor- failure to Consequently, at 1966. S.Ct. neys’ prevailing party fees to a for at least pre-condi- comply with the administrative performed by the work her in con- Brown, precludes as in tions of Section any complainant nection with lawsuit a getting from even into complainant may They file under Title VII. disagree, court. 1949, 1953, phrase “as 48 L.Ed.2d 416 It is now established simply applicable” applicable” language is to be understood as re- “as does not allow a court “ employ- may flecting inapplicability appropri- to federal ‘act in whatever manner “provisions judge’s claims of ment discrimination ate’ in the view of the case and to 706(f) (k) detailing through among provisions the enforcement choose from §§ Section [Equal Employ- Roudebush, responsibilities Hackley U.S.App. of the EEOC v. 706.” Opportunity (1975) and the Attor- (quoting ment Commission] D.C. ney opinion which are relevant General” of the District from in that case). discrimination claims. sector Roudebush, v. Chandler a suit the III. to whether in such THE as STATUTORY LANGUAGE a court to award language permits relevant We begin analysis our language in con- performed for work of the statute itself. Consideration of the proceed- with the administrative nection operative clearly demonstrates that, above, explained ings proceedings — that appellant’s interpretation narrow' re- filing a law- statutory prerequisite quires a strained and unnatural construc- discrimination alleging employment suit tion. government. the federal 706(k) grants Section federal Dis reject leads us to the limita- analysis Our trict Courts discretion to award reasonable suggested by appellant and to conclude tion suit, fees and costs to the prevailing a feder- brought by in a Title VII party or any proceeding action under employee, attorneys’ fees awarded under al “[i]n * * e., subchapter Title 706(k) *.” may compensation include [/. VII] prepositional phrases Both done at for work both and adminis- —“in holding proceeding” subchapter” levels. In so our decision is and “under this trative majority —suggest Congress with the of cases did not intend to consistent question which the has been considered.14 limit awards of fees and costs to services States, D.Md., compensation legal 13. See Johnson United Civil case which holds that aff’d, (June 1976), performed Action No. H-74-1343 services in connection with EEOC Kleindienst, (4th 1977); aspect F.2d 632 Cir. Smith v. of Title —the aff’d, (D.D.C.), 8 F.E.P. Levi, sub nom. Smith private employ- VII’s enforcement scheme for (1975) U.S.App.D.C. 527 F.2d 853 ment —is a fee that be awarded under (decision opinion); without McMullen v. War 706(k), 2000e-5(k). Appellant’s 42 U.S.C. § ner, F.Supp. (D.D.C.1976); Reyes 416 1163 v. br. at 12 n.12. But see Williams v. General Mathews, (D.D.C.1976); F.Supp. 428 300 Ham 399,'409 (7th 1974) Corp., Foods (court 492 F.2d Cir. Balzano, E.P.D. ¶ (D.D.C. mond 10 10333 attorneys’ seemed to assume fees could 1975). be awarded for services rendered in EEOC Mumford, In Foster v. 11 E.P.D. 10803 f However, ceedings). also has Government (D.D.C.1976), appeal sub nom. on Foster v. any private not cited sector Title VII case Boorstin, -, U.S.App.D.C. 561 F.2d 340 compensation which holds that such not following the District the decision Court — be awarded. The truth of the matter is that the Health, Secretary Mello v. of Education and apparently issue has not been decided. In view Welfare, (D. 1974) 8 E.P.D. D. C. —refus- functions, nature and EEOC’s this is not attorneys’ award ed to plaintiff fees at all because the surprising. employ- an When EEOC receives “prevailing party” was said not to be a complaint ment discrimination from an em- 706(k), within the § and, ployee investigates when it concludes 2000e-5(k). separate opinion In a § issued there is reasonable cause to believe the today, and, we reverse and remand that case to committed, alleged discrimination has been at- Mello the extent is inconsistent with our deci- tempts promote conciliation between em- Foster, sion in we overrule it. In the recent ployer employee. 706(b), Section Boorstin, of Walden v. D.D.C. Civil Action case 2000e-5(b) 1975); (Supp. U.S.C. § V 29 C.F.R. (Oct. 1976), appeal No. 76-0297 defendant’s (1976). 1601.5 to 1601.26 §§ EEOC has no pursuant 4, 1977, April dismissed Judge to his motion power to award remedial relief or issue cease attorney’s noted that Gesell “[w]hile orders, although, and desist since it has spent handling for time an administrative hear- bring been authorized to civil actions in District included, ing cannot this does not bar the 2000e-5(f)(l) (Supp. Court. 42 U.S.C. V § responsibility claim here. Counsel have a 1975). procedures authority Thus EEOC’s position ascertain the administrative aof con- usually unnecessary make it for an troversy bringing before it to court and limited attorney’s way use an services. In this reasonable administrative contacts immediate- ly prior private method of recourse for the sector em- recognized. to suit will be That is the ployee against who has been Slip op. Recovery discriminated situation here.” at 1. of all employ- plaintiffs legal much different from that of the federal of representation prior non-“excessive” hours of proceed through ee. The latter must to the adminis- suit and eventual channels, permitted. generally involving trative gation an settlement was then To the extent investi- holding hearing, agency. or dicta in Walden are incon- and a that the formal within her infra, attorney’s with our decisions in either the instant sistent As described an assistance can Foster, they importance too are overruled. proceed- case or be of considerable in such ings, particularly hearing. at a passing mentions in that it 14. The Government discovered a sector Title VII has not filing after com- performed “proceeding” each refer to a suit subchapter requires since this plaint, However, federal court. as one court has proceeding before court action.15 held in considering question, the same “Had Congress wished to restrict an award of an Appellant nevertheless contends fee to only suits court, filed in proceeding” the reference to “action or there would have been no need to add the simply to civil is a reference words proceeding’ ‘or ‘any action.’ But brought Ignoring in federal court. the dis ‘proceeding’ is a broader term than ‘action’ junctive link between the two words and and would include an as principle statutory the familiar lan well as proceeding,” guage should be construed so as to avoid Johnson v. United D.Md, States, that, redundancy,16 appellant argues in Sec Civil Action No. H-74-1343 706(k) (June 8, incorporated tion as 1976), slip op. 7, aff’d, 554 F.2d 717(d), 2000e-16(d), (4th 42 U.S.C. “action” Cir. ” correctly Appellant notes that the estab- but unequivocally expressed.’ must be Unit that, “American rule” is absent an en- Testan, lished 392, 399, ed States v. 424 U.S. 96 S.Ct. contract, litigants in forceable federal court quoting L.Ed.2d 114 United attorneys’ pay Alyeska must their own fees. King, I, 4, States v. 395 U.S. 89 S.Ct. Pipeline Society, Co. v. Wilderness (1969). L.Ed.2d 52 240, 250, 257, L.Ed.2d is, course, All of this and, well established (1975) cases). Alyeska (collecting the Su- now, it, commonplace. even None of how subject preme noted that this rule is ever, precise question bears on the at hand. exceptions. exception three One such is “the simply, is, doubt, Quite Title VII without permit power equity historic the trustee of expressly provides statute that recovery property, party preserving a fund or or a attorneys’ specifically fees and that waives sov recovering a for the fund benefit of others ereign immunity. Koger Ball, See 497 F.2d costs, himself, to recover addition his includ- (4th 1974); Lynn, n.33 Cir. 198, Womack v. fees, attorneys’ proper- ing his from the fund or U.S.App.D.C. 504 F.2d ty directly parties itself or from the other en- 706(k), From its enactment § 42 U.S.C. joying the benefit.” 421 U.S. at 95 S.Ct. at 2000e-5(k), always permitted recovery has Also, “may a court assess government fees from the federal fees for the 'willful disobedience of a court private person.” “the same as a See United order ... of the fine to be levied Corp. States, States Steel v. United ’ defendant, losing on the party or when the (3d 1975); 361-362 Cir. Van Hoomissen v. faith, vexatiously, has ‘acted in bad wan- Corp., (9th 1974). Xerox 503 F.2d 1131 Cir. Cf. tonly, oppressive or for reasons . . . Fitzpatrick Bitzer, 445, 457, v. 427 U.S. 96 S.Ct. 258-259, Third, Id. at 95 S.Ct. at 1622. and the 2666, (1976) (award 49 L.Ed.2d 614 of attor only here, exception may relevant a court neys’ pay against govern fees and back state attorneys’ by award fees where authorized employers pursuant ment to Title VII does not 269, statute. Id. at 95 1612. S.Ct. violate the Eleventh Amendment since that that, Appellant respect also asserts with by Amendment is limited § 5 of the Fourteenth government, the federal the “American rule” is Amendment). Accordingly, question the is not by (1970), reinforced 28 U.S.C. 2412 which § 706(k) attorneys’ whether § authorizes fees and immunity sovereign litiga waives as to certain sovereign immunity waives but, rather, plainly does— —it recovery tion costs but does not allow of attor specific language how the of the neys’ against government fees the federal un attorney interpreted. fee should be they specifically provided less are for in anoth seeking proper interpretation In necessarily the this court Rumsfeld, U.S.App. er statute. Cuneo v. 180 generally applicable princi turns to 184, 1360, (1977). D.C. 553 F.2d 1363 Thus ples statutory See, g., construction. e. Indi this court has said that 2412 codifies “the § Towing States, 61, an 64-65, Co. v. United 350 U.S. principle sovereign immunity pre [which] 122, (1955); 76 S.Ct. 100 L.Ed. 48 Cana against cludes the award of costs and fees the Aviator, States, dian Ltd. v. United 324 U.S. ‘in United States the absence of a statute di 215, 222, 639, (1945); 65 S.Ct. 89 L.Ed. 901 3 A. rectly authorizing it . Natural Re Sutherland, Statutory Statutes and Construc Council, EPA, sources Defense Inc. v. 168 U.S. ed., (4th Sands, tion § 72.02 ed. 111, 1351, App.D.C. (1975). 512 F.2d 1353 Ob therefore, viously, Lincoln, Rockbridge 567, a statute cannot be said v. 571 (9th attorneys’ 1971); Blasius, against authorize award of Cir. United States v. 397 203, (2d Cir.), granted, United States unless it constitutes a waiver F.2d 950, 206 cert. 393 U.S. sovereign immunity. 375, (1968), Such a “waiver of the 21 L.Ed.2d 361 dis missed, sovereign immunity,” 1008, Supreme 615, traditional 393 U.S. 89 21 S.Ct. L.Ed.2d “ said, recently implied (1969). Court has ‘cannot be 557

326 2000e-5(i) argument 1975), an to bolster his U.S.C. V (Supp. § effort autho- refers to “proceeding”

neither nor the Equal “action” rizes Employment Opportunity (EEOC) appellant cites Commission institute proceedings, administrative in District Title VII selectively provisions provides in Court. That to other subsection that “[i]n is “proceeding(s)” any used.17 where the word case in which an employer, employment particular, “pro- asserts that appellant agency, organization labor fails to com- 706(k) ceeding” ply in refers to enforce- Section with order of a court issued in a civil 706(i), ment which 42 brought Section under this section [Section Appellant support fee, attorney’s several also seeks from to recover a reasonable “to be which, statutory language pursuant cases in part taxed and collected as a of the costs of the 706(k), wholly distinguishable 42 from that of added.) § (Emphasis 706(k), suit." (1970), attorneys’ U.S.C. 2000e-5 fees were § however, provides “any pro- that in action or pro- services in not awarded for ceedings. ceeding” prevailing party “a receive heavily He most on Meeker & relies attorney’s part reasonable fee of the costs Co., 412, Valley Lehigh R. 35 Co. v. 236 U.S. * * added.) (Emphasis 328, (1915), S.Ct. 59 L.Ed. 644 followed Mills observes, however, Appellant 706(k) that § Co., 473, 482, Lehigh Valley R. 35 part allows fees to be taxed as 888, In Meeker the 59 L.Ed. “costs,” litigation and that allowable ex- plaintiff brought an suit in had enforcement penses for which the Government is liable as 16(2) District Interstate § Court under provided costs for in 28 U.S.C. § 4, 1887, February See Act of Commerce Act. (1970). According appellant, the items listed 379, 104, c. and amendments of March Stat. statute, g., fees, in that e. marshal and docket 10, 2, 1889, 382, 855; 1891, February Stat. c. only pertain expenses incurred in the Dis- 128, 743; 8, 1895, 61, February c. c. 26 Stat. and, (1970) Court trict since 28 U.S.C. § 643; 584; Stat. c. 34 Stat. June only immunity sovereign waives for the ex- and June 34 Stat. Joint Resolu- penses enumerated in § costs in- at 49 1975). tion No. 47. Amended and codified curred Title VII federal com- (1970 Supp. V U.S.C. 1 to & §§ plainant at the 16(2) Act, administrative level are not Under of that re- §§ 8 and see U.S.C. point coverable. 16(2) Supreme On this we note affirmed that the §§ an suggested extent award of fees to the construction does such violence to plain 706(k) language covered rendered in services connection § it lacks all suit in but plausibility. the enforcement District Court disal- part lowed that of the covered award which Appellant Hays also relies on Livestock Com- prior reparation services rendered Maly Co., mission Co. v. Livestock Commission ceedings conducted before the Interstate Com- (10th 1974), interpret- 498 F.2d 925 Cir. a case merce In the Commission. ing of the Packers Court, statute, provid- quoting Stockyards Act, 210(f) (1970). violating ed “that a shall be carrier the act parallels Because the statute that construed in injured person damages liable to for the he expressly Meeker and because court fol- sustains, ‘together with a reasonable counsel or which, lowed Meeker's as discussed rationale — fee, attorney’s every be fixed the court supra, distinguishable case also offers —this recovery, case of shall be support appellant’s position. no taxed and collected as of the costs Lastly, appellant refers the court to its deci- ” case.’ 336. Sec- S.Ct. at FCC, U.S.App.D.C. in Turner sion Act, noted, 16(2) tion the Court related (1975). In Turner we F.2d affirmed damages “to to enforce claims for after actions petitioner’s request the FCC’s denial of the thereon,” has acted and it Commission pursuant fees to 47 U.S.C. § petitioner finally pre- vided that shall “[i]f (1970). permits recovery That section of attor- attorney’s vail he shall fee, allowed a be reasonable neys’ part fees “as of the costs in the case." part to be taxed and collected as (Emphasis added.) language, This like that in costs of the suit.” Id. Meeker, question in in stands contrast to the holding firmly in The Court’s Meeker rested encompassing proceeding” “action more ter- interpretation on its of these two sections. Furthermore, minology peti- of Title VII. language significantly Each section uses differ- requested in tioner Turner had the FCC to 706(k), ent from the U.S.C. § private party petitioner’s pay a order to attor- 2000e-5(k), we which are asked to construe. § neys’ covering services rendered at the per- Act Section 8 of the Interstate Commerce quite is level. This injured party different mits the damages to file to recover suit appellee’s request from in the instant case for and a reasonable fee “to be require government part District a taxed and collected as of the costs [of] added.) 16(2) pay attorneys’ (Emphasis au- fees. case.” Section prevailing party thorizes the in an ICC action (Emphasis added.) 2000e-5], 706(e), 42 U.S.C. See also § Section [EEOC] compel compli- proceedings commence 2000e-5(e) U.S.C. (Supp. 1975). V § 18 Also, appellant ance with such order.” required Since the only deferral is for 60 Court suit authorized that the District * * * 92-261, 4(b)(1), similarity is, course, section.” Pub.L. No. 86 Stat. language § of of importance 107. No is ascribed to this techni- strong indication that the two statutes should cal, perfecting modification. The Sachs, interpreted pari passu.")', Torres v. 706(i), quoted is that of 42 U.S.C. 2000e- § § (2d 1976) (construing 538 F.2d 10 Cir. similar 5(i), it now reads. as provision Voting in the 1975 extension of the 1965, Rights 1973-f(e)). Act of 42 U.S.C. § Memphis Compare Northcross v. Board of Education, 427, 428, 2201, 93 S.Ct. 328 having “proceeding” pay 706(k) the reference costs of attorneys,

tion to be a appears thus to —in addition to remove a deterrent seeking “action” — Congress’ intent that legal redress. clear manifestation Cf. Lea v. Cone Mills apply to Corp., (4th should 438 F.2d 86 Cir. See of the Title VII enforcement Newman v. aspects Piggie Enterprises, Park both 390 400, 964, II and VII dif- Admittedly, Titles U.S. scheme. S.Ct. 19 L.Ed.2d [88 1263] plaintiff brings in that fer “[w]hen II], he cannot recover action under [Title 416 F.Supp. at 1167. Piggie Park Enter- Newman damages,” That “any action or proceeding” should 402, at at supra, 390 U.S. S.Ct. prises, be construed in its broader rather than in can, alia, plaintiff while a inter recover its narrower sense is made even more obvi- Piggie But the damages under Title VII.20 ous the fact phrase that that is followed applicable has been found Park rationale phrase e., “under this subchapter [i. See, g., well. e. Evans v. Title VII cases as Title interpret To the language VII].” Hotel, U.S.App.D.C. Park Sheraton “any action or proceeding under [Title (1974); Lea v. Mills F.2d Cone as excluding the VII]” 88;21 Nussbaum, supra, 438 F.2d at Corp., ceedings that constitute such a central Litiga- Interest Attorney’s Fees Public of Title VII is ignore not the statu- tion, (1973) 48 N.Y.U.L.Rev. 321-322 tory language itself but also the authorita- Moreover, cases). (collecting purposes tive construction that it has re- the counsel fee in the two ceived. In Alexander v. Gardner-Denver are, respects, important parallel.22 Titles Co., 36, 47, U.S. 94 S.Ct. short, join appellant (1974), we decline to in L.Ed.2d 147 straining “proceeding” plainly to construe the word stated: possible in as narrow and technical sense as [Legislative enactments this area have it superfluous phrase so as to make and the long general evinced a intent to accord proceeding” “action or a redundancy.23 parallel or overlapping remedies against This was also the conclusion reached in discrimination. the Civil Act Warner, F.Supp. (D. McMullen 42 U.S.C. 2000a et seq., § Con- D.C.1976), a Title VII gress indicated that it poli- considered the case, discrimination where Judge cy against Sirica discrimination to be of the “highest awarded fees to an employee priority.” Newman v. Piggie Navy the United Park Enterprises, supra, States “for the adminis- U.S. trative portion of this case as well as for [88 ^[964] 966]. Consistent with view, portion.” Judge provides Title VII Sirica stated: for consider- ation employment-discrimination government argues phrase that the claims in several forums. See 42 U.S.C. “any action or proceeding” does not in- 2000e-5(b) ed., (1970 Supp. II) (EEOC); § clude administrative But proceedings. 2000e-5(c) (1970 ed., II) Supp. the words certainly themselves do not (state agencies); and local 42 U.S.C. suggest Congress intended such a 2000e-5(f) (1970 ed., II) (federal Supp. Nor, view, distinction. in this Court’s courts). purpose. does the section’s purpose, That injured concerned, (Footnote far as plaintiffs omitted.) so The 1972 amendments Act, is to remove from them the burden of to the extending its applicability to here, Corp., specific single 20. Clark v. American plaintiff. Marine relief for a F.Supp. (E.D.La.1970). distinction, however, by 710-711 This no means dimin- justification ishes the for award of Piggie fees in this Enterprises, case. See Part IV infra. 21. Newman v. Park 19 L.Ed.2d 1263 opinions as well as the lower court that are 22. See Part IV infra. cited, wide-ranging injunc- involved award of than, against tions future discrimination rather supra. 23. See cases cited in note 16 to were no less clear as refer to this blend of employees, administrative and federal administrative and judicial interrelatedness of powers and not simply seg- to one This was stressed judicial proceedings. ment of it.

numerous supra, enforcement 1964, Stat. Employment Supp. discrimination forcement mechanisms cate federal employee to file a civil action in a federal mentary istrative and * * district court to review his claim of em- * its recent Section Section * * ^[******] ****** which described Ill, IV), as * statements administrative and added 717(b) 717 of the Civil proscribes scheme of which the 717(c) permits is a opinion judicial § U.S.C. Opportunity Act of and establishes an part. by § enforcement (c) in Brown v. federal 2000e-16 the nature of the The Court designed 11 of the establish Supreme discrimination. Rights Act of an employment judicial aggrieved (1970 ed., to eradi- comple- system. stated: admin- Equal Court GSA, en- ment of the structure of Title VII enforcement procedures, of the same proceedings in this argument Title VII administrative proceedings. The have a ney’s Supreme Court noted: United The “ ing In Chandler v. and the nothing but the exigency of a hard case * * * ‘[T]he scheme created fee is now of a statute is instant powerful operation right States, supra, curious, narrow, Court plain, obvious and rational mean- ingenuity the administrative and litigation case, 48 L.Ed.2d 416 trial rejected federal intellect would discover.’ sought.” Roudebush, case, always de by Congress. “were fact, for which an attor- integrated novo employees the Government’s study hidden sense that as in Johnson v. 554 F.2d at 633. to be representative subsequent 425 U.S. of an acute preferred enforce- Because judicial do not parcel ” ployment discrimination. Attached to 425 U.S. at at quoting S.Ct. right, are certain [adminis- Lynch Co., v. Alworth-Stephens * * * preconditions. trative] S.Ct. 69 L.Ed. 660

[******] Mindful of the Court’s admonition, we re- ject the Government’s attempt to strain the balance, completeness, and struc- statutory language so pre- as to curtail a integrity tural 717 are inconsistent § vailing employee’s federal right Title VII petitioner’s with the contention that the just award of as the 717(c) judicial remedy afforded was rejected in Chandler supplement designed merely pu- other analogous Government’s attempt to curtail fails, tative relief. His view employee’s Title VII right to a estimation, due weight our to accord trial de novo. supposed the fact that unlike these other remedies, not contemplate does IV. THE PURPOSES OF TITLE VII Rather, merely judicial provides relief. find, therefore, for a careful blend of administrative and We plain that both the powers. enforcement language of the statute itself and the case 829-833, (em- 425 U.S. at law in which that ap- has been added; omitted). phasis plied support footnotes See also the District Court’s decision. Butz, U.S.App.D.C. addition, compelled Grubbs we are to note that (1975); Hackley adoption position urged by appellant F.2d Roude- bush, The ex- supra, seriously impinge imple- 156-159. would on effective proceed- Title pansive “any pur- reference to mentation of VII’s established plainly poses.24 intended ing under VII]” [Title case, noted, appellee just remedy employ- In this we have had was accorded a for the to file an action ment discrimination she in the District Court before she had suffered. It was

330 Enter to seek the relief Piggie Park made available thereun-

In Newman Supreme Court construed prises, supra, the for which pro- der —relief which, provision fee as Title II’s are ceedings essential. discussed, but already slightly narrower that, Specifically, Piggie Park held not- that of Title VII. otherwise identical withstanding statutory language that en congressional policy of ruling that Court, discretion,” may “in District its of civil enforcement couraging private costs, fees and prevailing party allow the required a fa rights legislation construction encouraging private of purpose enforce- fees, availability attorneys’ of voring wide that who ment dictated “one succeeds in the Court stated: obtaining injunction under that Title was Rights When the Act of 1964 Civil ordinarily an attorney’s should recover passed, evident that enforcement special unless circumstances would render Nation prove would difficult and that the unjust.” such an award at U.S. private rely part upon would have 966. Piggie explicitly S.Ct. at Park was securing means broad litigation as a of approval cited with in Alyeska Pipeline Ser- * * * the law. compliance with Society, vice v.Co. Wilderness (footnote at 88 S.Ct. at 966 S.Ct. L.Ed.2d omitted). Relatedly, the Court noted also leading decision as attorneys’ to when fees * * * “Congress pro- that enacted may awarded. be penal- simply vision for counsel fees —not construing Courts fees and costs litigants deliberately argu- ize who advance Title adopted visions of VII have the Piggie but, they ments know be untenable more Park rationale that statutes authorizing encourage broadly, injured by individuals attorneys’ part award of fees as of racial discrimination to seek relief enforcement schemes in the Civil under at Title II.” Id. 966.25 S.Ct. Act be broadly interpreted. should Similarly, attorney fee of Ti- Georgia Inc., Johnson v. purpose abetting Highway Express, tle VII has the broad of (5th 1974), by encouraging enforcement of that Title Cir. the court injured respect individuals racial discrimination 706(k): said with to Section “This Court, therefore, [prohibiting District that made the sions discrimination] attorneys’ subject remedies, fees award which through appropriate including is the of rein- appeal. Appellant argues affirming that hiring employees with or with- statement holding may that District Court award pay, policies out back as will effectuate the ” attorneys’ fees for services at the administra- (emphasis added). this section tive and will levels have the anomalous We stress that we wish to intimate no views plaintiff result VII a Title is unsuc- who appellee’s sugges- as to the merits of either of cessful in the administrative but They tions. to show mentioned that it recoup succeeds in will court be able to attor- premature neys’ rendered, legal would to conclude that our deci- fees for all services while plaintiff consequences by ap- sion have will feared who is successful at the administra- pellant. recoup tive level will not be able to attor- neys’ fees. 25. The noted Newman v. is, holding today course, Our limited to the Piggie Enterprises, supra Park note 21: particular facts of this case. This court need not, therefore, Congress’ objective not and does If decide whether the had been to autho- anomaly predicted by appellant against will fact re- rize the assessment of fees out, point sult. appellee We do completely groundless defendants who make suggested possible ways has two in which a purposes delay, contentions no new plaintiff proceed- successful in administrative statutory provision would have been neces- ings might obtain fees for services sary, long for it has held that a been proceedings. possi- rendered in those The first court award counsel fees to a successful bility plaintiff is to allow the to come to court plaintiff where a has defense been main- single whether, on the issue what faith, vexatiously, wantonly, “in tained bad amount, attorneys’ fees are to be awarded. oppressive or for reasons.” Moore’s Feder- The second is itself to award ed.). (1966 al Practice 1352 pursuant authority 717(b), to its under § n.4, 390 U.S. at 402 2000e-16(b), provi- to “enforce the Warner, g., ‘to make E. obligation supra; McMullen Court, its Johnson works,’ States, liberally supra; has v. United VII Smith v. Klein Title sure dienst, (D.D.C.), aff’d, of Title F.E.P. 752 sub nom. applied private Levi, importance 70, of Smith v. VII, U.S.App.D.C. recognizing (1975) (decision rights legislation.” F. 2d 853 opinion); civil without of enforcement Wise, adopted Reynolds v. omitted.) F.Supp. (N.D. This court (Footnote 706(k), Tex.1974). of Section construction liberal Johnson, v. in Evans Sheraton in

enunciated Appellant insists, however, that in award- Hotel, F.2d at 187-189. supra, 503 Park ing attorneys’ fees a distinction should be Furthermore, attorneys’ to award failure made judicial between administrative and VII party in a Title prevailing to a Appellant’s enforcement of Title VII. en- the Dis- held an abuse of has been tire argument sharply clashes with the Mills discretion. Lea v. Cone Court’s trict clearly perceived structure and aims of F.2d at 88. Corp., supra, 438 Title. From passage of the Civil Act of the Title VII enforcement private enforcement policy favoring The scheme has included both administrative compel even more arguably Title VII is proceedings judicial pas- and actions. In a agency a federal or official is the ling when sage from already quoted29 Alexander private employ sector defendant. Unlike Co., at supra, Gardner-Denver 415 U.S. ees, employee complainants are not federal empha- S.Ct. Court general; they are merely private attorneys sized the interrelatedness of Title VIPs ad- only attorneys general under the en judicial ministrative and enforcement adopted scheme forcement in nu- private scheme in the sector. And 1975). V (Supp. 2000e-16 Suits 42 U.S.C. § passages quoted30 merous from Brown employees by federal the Attor in behalf of GSA, supra, that Title the Court stressed or are not authorized ney General EEOC VIPs administrative and enforce- Indeed, agencies. federal the At against employees for federal was at ment scheme torney frequently is counsel for the General least as interrelated. side.26 Also unlike sector em other bring ployees, employees federal must first Essentially, appellant’s position on wheth- employment griev their discrimination representation fees for at attorneys’ er ances, independent not to an state or local necessary administrative level are to effec- EEOC, body27 administrative but to policy internally tuate Title VII is an incon- very agency practices they about whose attempt ways. sistent to have it both On hand, complaining. Partly argues pay- Id.28 for these appellant are the one reasons, doubt, consistently attorneys’ no courts have ment of fees relates to a benefit, prevailing fringe not to a substantive or plain awarded fees to fact- discrimination cases in cedural defect of the administrative tiffs prevent equita- would agency finding process a is the defendant. p. supra. 27. See text at This is not attenuated the fact distinction considering in this case we are an award aspect Roudebush, fees for the administrative observed in Chandler v. 28. As was litigation. n.39, Title VII Title VII’s “careful blend supra 425 U.S. at 863 note S.Ct. judicial enforcement of administrative understandably Congress was concerned GSA, powers,” Brown v. inherent conflict of interest involved over the 48 L.Ed.2d 402 is such when the accused of discrimination is utilization of the administrative that effective proceedings ruling responsible processing for on considerably plaintiffs can ease claim. judicial proceeding path subsequent while, conversely, at the admin- ineffectiveness supra. p. 29. See text at make success at the istrative level can Parties to a Title VII suit level more difficult. may, p. supra. 30. See text at example, of their submit the record proceedings to the District administrative infra. as evidence. See note 33 provides (id. receipt stipulations at grievance. employee an resolution ble asserts, 38), speaks “relevancy,” “materiality,” Moreover, appellant Title VII sector “repetitiousness” in a federal as matters of concern On the other (id. 47-48), non-adversarial. ruling admissibility when on case that while hand, contends appellant also parties participate and entitles the give employee regulations governing (id. drafting interrogatories written represented, accompanied, right to be Handbook, regulations, and federal his own representative counseled make clear that in a Title VII administra- proceedings, every stage choosing at expected hearing tive is 713.214(b)(1977), paid counsel 5 C.F.R. § see record, put proof, evidence into the offer employees time since unnecessary at this evidence, argue against agree exclusion of of an at- the services have available often examine and cross-ex- stipulations, on and charge.31 torney without Part 713 amine witnesses. See C.F.R. whether uncertain thus seems charge Appellant possible of the is Settlement services at the argue that for wants to he agree- any stage proceedings at of the and (1) attorneys’ fees are level administrative may, accordingly, negoti- ments have to be unneces- attorneys are unnecessary because rights may be waived. ated and unnecessary attorneys’ fees are (2) sary, or Furthermore, agency’s representative because, necessary, attorneys are although likely lawyer, is to a which can event, we can any is not. compensation non-lawyer plaintiff’s serve to exacerbate a argument. accept neither disadvantage. Any realistic assessment of that an support his contention To proceedings Title VII administrative re- Title VII admin in federal sector employee quires despite conclusion the fact that — need a law does not proceedings istrative they strictly are not adversarial —an em- Com cites the Discrimination yer, appellant ployee would often be ill-advised to embark (1973), pub Handbook Examiners plaints Indeed, legal thereon without assistance. Equal Federal Em the Office of lished lawyer may upon the services a be called to fact, Opportunity. ployment perform at the administrative level are well could more of the Handbook the contents illustrated by litigation. the instant Appel- just opposite for accurately be cited lee’s counsel has attested that in the course The Handbook offers the self- proposition. of the administrative she draft- “sets forth the basic description that ed two complaints administrative and a which will enable the Examin ground rules affidavit, exhibits, lengthy compiled inter- impartial hearing conduct a fair and er to witnesses, viewed responded inquiries just in discrimination render a decision agency investigator, from the le- conducted Id., Foreword. In out complaint cases.” gal request agency research at the hearing lining the nature of such officer, equal employment opportunity which, process sketches Handbook negotiated a settlement all charges. Af- indispensable, lawyers would though not Singer, of Linda P. JA fidavit 20-21. lay person. assistance to a For clearly be of Turning appellant’s the Handbook makes for contention that example, grounds legal and describes the for free services are continuances available to federal (id. 20-21), denying employees them in Title VII granting or administrative com- Appellant goes possi- operate Representa- then on to list an EEO Volunteer legal possibilities Program employees for free services. The tives to assist in adminis- bilities attorneys employee’s proceedings; Employment from the mentioned are: trative and the Dis- who, pursuant Complaint to Civil Service own crimination Service of the District of regulations, are allowed a reason- Commission Columbia Bar Association which refers federal away employees private governmental of time from their official able amount law- purpose representing responsibilities yers legal agreed provide who free have (5 aggrieved representation Appel- without C.F.R. in discrimination cases. attorneys 713.214(b) (1977)); from certain br. at lant’s 28-29. Justice, Department agencies, such as the initially that the factual ductive. The attorney may we note plaints gain thus point disputed. Appellee is accuracy familiarity with the facts of the case that is Program an affidavit important has submitted so in the fact-intensive area of the District of Columbia Bar Director of employment discrimination. Perhaps even Employment Discrimination important, Association more that there which asserts Complaint Service ceedings allow the attorney help make a shortage govern- of both is a record that can be introduced at subse- attorneys provide who are “able to ment quent District Court trial.33 Especially in representation that time-consuming an instance where development of a thor- cases, government these EEO necessary for ough administrative record results in an complain- means of the within the financial trial, abbreviated but successful refusing br., A, Attachment Appellee’s ants.” H award fees for work at the ad- appeal on propose not to resolve We do penalize ministrative level would the lawyer observe, however, dispute. We do factual pre-trial his effectiveness and his result- arguing legal that free appellant,' ant Simply conservation of time. available, on the relies services operation to describe the appellant’s sug- employ- from the availability attorneys gested distinction between attorneys’ fees br. at 28. agency. Appellant’s ee’s own administrative and levels is any way compe- questioning Without emphasize irrationality. its attorneys, such we find integrity of tence unsatisfactory alternative to allow- an VI. CONCLUSION his own counsel ing plaintiff a to choose hold, sum, We that a federal District agency. A particular outside his from discretion, Court does have in a VII Title rely attorney who is asked to on an plaintiff employee action where the federal is the very agency the about whose from within prevailing award party, attorneys’ fees may lack faith complaining he is practices compensation legal that include for services objectivity proceeding. We in the performed prior filing independent of coun- that the absence fear complaint. the conflict of in- only compound could sel Affirmed. might perceived to exist terest agency accused of discrimination when the APPENDIX: LEGISLATIVE HISTORY process and rule on the claim.32 must In order to forth all the sources set being inconsistent with the In addition parties support the invoke to their conflict- VII, Title the distinc- recognized policies of ing positions, append we this discussion of attorneys’ fees for services at tion between legislative history of Title VII’s attor- judicial levels is in- the administrative and ney provision. fee legal prac- of consistent with' the realities represent- parties Both lawyer rely aspects tice. For conscientious on various of claim, fact, however, legislative in a Title VII materials. ing a federal although sup- done at the administrative level is an certain isolated remarks lend work port appellant’s position, pertinent legis- integral necessary of the work at attorney history lative considered as a whole rein- obviously level. Most investigate statutory language the facts of his case at a forces the and bears out can view investigation attorneys’ when will be most that an award of fees time 32. See note 33. The v. may, of federal-sector trial de novo. See Fed.Rule spect Evid. Roudebush, supra Prior administrative to an 803(8)(C). course, supra. be admitted as evidence at a Cf. Alexander note 12: pointed out in Chandler findings made with re- discrimination claim Gardner- note 425 U.S. at 863 Hackley at at Denver 150-152, 156-159; Reyes v. Co., 39 L.Ed.2d [147] Roudebush, F.Supp. n.39, 96 S.Ct. at 1961. See also. supra at v. note [94 Mathews, 165] n.21. 520 F.2d ^[1011] supra * * compensation vailing may party” plaintiff include under Title VII or defend- —be legal level. ant —could obtain the administrative fees. for services (footnotes 548 F.2d at omitted). legislative histo- This court reviewed Effectuation of each of these attorney provision fee in the identified ry purposes would be hindered adoption Butz, U.S.App. recent case of Grubbs position Government’s that an award of There the D.C. attorneys’ fees not include work done em- plaintiff, a federal court held that at the administrative level. Far from mak- fees ployee, was not entitled ing plaintiff it easier for a of modest means substantially services in a successful suit, bring a meritorious the Govern- interlocutory appeal since success on an in- view ment’s of the limitation on the attor- not, more, was without terlocutory appeal ney provision fee would make it more diffi- plaintiff “prevail- to make the sufficient cult. Even when patent, discrimination is within the ing party” an employee might view his Title VII rights 706(k), 2000e-5(k) (1970). 42 U.S.C. § as not “worth” enforcing if he knew he re- the course of its discussion the court would have to bear the cost enactment, prelude viewed the fees for the provision question: necessary are a step. Additionally, first statute, however, define does not acceptance of the argument Government’s “prevailing party.” attention was Scant might also thwart congressional second provision on the fee focused purpose behind enactment of Title VII’s fury of the extended amid the sound attorney provision fee by encouraging rath- on the 1964 Act. No debates Civil deterring er than needless lawsuits. That in the counsel included is, if were held reported version of Title VII out of the not to authorize work adminis- Committee, Judiciary House or that ini- proceedings, trative then complainant approved by Repre- the House tially that, attorney might his well decide sentatives and submitted to the Senate. level, the administrative they could not af- provision appeared first in Title VII ford to take necessary the time to develop comprehensive as of a amendment in complainant’s carefully case fully. and substitute, the nature of a by submitted Clearly, this would reduce the likelihood Senators Mansfield and Dirksen. That that claims could be resolved without resort comprehensive approved amendment was to court. It would also mean that the ad- by the adopted Senate and later in toto record, ministrative which can be admitted by the House. court,1 as in evidence would tend to be less complete helpful and thus less in conserving From the Senate debate on the Mans- brought. time in suits that are amendment, however, field-Dirksen two First, 706(k) purposes emerge. opinion as noted the for the Congress desired to “make it for a easier court at Congress F.2d at plaintiff bring of limited means to a mer- substantially amended Title VII by, among suit,” Humphrey itorious as stat- Senator things other and most important for our explaining changes ed in made purposes, extending its applicability to fed- Indeed, fee amendment. employment. eral In enacting these provision integral was an part of the Sen- Congress amendments left unchanged the primary responsibility ate’s effort to shift wording attorney provision. fee enforcing Title VII from the EEOC to 717(d), With the addition of Section second, aggrieved individuals. But and 2000e-16(d) (Supp. 1975), V important, equally Congress intended to original attorney fee provision along with — bringing “deter the of lawsuits without provisions other from the 1964 Act and by providing “pre- foundation” that from the 1972 amendments thereto —was opinion court. for the

1. See note 33 of very important right for a Government employ- to federal applicable simply made employee, for the individuals involved are attorney VII’s though Title But even ees. not, main, salaried, unchanged by the in the high was left in that provision was the provision amendments likely those who would be to sue in these partic- and not some inconsistent subject of equal employment opportunity cases are in the comments Senate enlightening ularly fairly modest people. debates, in the House arid Senate and floor reason, President, I see no why So Mr. surpris- not Perhaps reports. conference case, wit, in the one that of the normal rely each on appellee ingly, appellant complainant who is not a Government authori- as favorable debates these Senate court, employee remedy with a ty- complainant beneficiary shall be the of a passage was a arguably relevant The first court-appointed lawyer, and not have to Dominick and colloquy between Senator securities, pay why these costs or Dominick —re- Javits.2 Senator Senator provision should be stricken out when it as Williams Senator ferred “[t]he comes to a Federal Government * * * changes architect of principal person, who has to sue and is also a area”3 —had the civil service dealing with generality because that is the of the (No. 611) to the an amendment submitted cases, of modest means. that, alia, (S. 2525) inter bill pending Senate that be- provision have struck the motion which I make is to strike would So 717(d), 42 2000e- U.S.C. § came Section of the Dominick amend- out turn, Javits, 16(d).4 introduced Senator oppor- ment which would withdraw that portion to strike an amendment tunity employee. from a Government I Cong.Rec. amendment. Dominick very see how- we can well make do not Javits referred to the Senator that distinction. 717(d) eventually made visions Cong.Rec. at 954. employees particu- to federal applicable Javits’ statement aspects Two of Senator question on the larly focused noting. The first is that his are worth stated: fees. He avoiding the concern was anom- paramount insofar provisions, those you refer If aly would have resulted had the find that you applicable, they —which complainant accepted Dominick amendment been where is that point main —of court, have arrived you employees being sector able to avail suing he has that where proceeding stage themselves of the remedy,[5] in such circumstances as employees could not. The while court just, the may deem court the appears is that Javits to second Senator complainant the attorney for appoint attorney provi- that the fee have assumed of the commencement the authorize and read, sion, as it then read and still does had fees, costs, payment the without employee brought applicability until an no security. or court; e., attorney i. that the suit in federal was irrelevant to the adminis- fee President, very important

Mr. that is a assumption proceedings. This was trative individual, just as it is a right for the Welfare, colloquy Legislative 2. The and Public between Senators Dominick mittee on Labor History and Opportunity Equal Employment Hackley Roudebush, Javits was discussed in v. Cong., 2d 92d Sess. Act (1975). 143 n.139 (Comm. Print (1972), quoted Cong.Rec. Chandler n.36, Roudebush, Although phrase “that the antecedent of the Hackley See also L.Ed.2d 416 entirely remedy” Jav- clear from Senator is not Roudebush, supra 520 F.2d at 129 note remarks, preceding it is obvious from the its’ n.81. speak- quoted passage he was the that rest of attorney provision. ing (Nov. Cong.Rec. 39739-39740 4. See Labor, 1971); Senate Subcommittee on Corn- the however, point ing to the that the relevant not, germane Senator Dominick’s If he had assumed making. adopted immediately was amendment was after Senator apply did to statement, that the Senator Dominick’s no further (i. employees’ private sector forthcoming. elucidation was EEOC) then he would cer- proceedings, e. exchange A second from the 1972 floor objectionable the have found tainly still debates which bears least tangentially on sector private disparity threatened between is, judice the issue sub unfortunately, also employees. and federal wholly not consistent. The focus of the Javits the Shortly after made Senator exchange proposed was another amendment above, quoted Senator Dominick statement (No. 833), (S. pending Senate bill as follows: responded 2525) on Cong.Rec. Title VII. 118 at 1841. President, say want I for amendment,

Mr. by was introduced particular amendment that Gambrell, record was Senator discussed in con- included, specific as the language was of a continuing text debate of enforce- deal with Fed- of the bill provisions powers ment that EEOC should have. At whom we had a differ- employees for eral particular perti- the time of the discussion They go through their procedure. ent here nent granting Senate envisioned they then have the agencies own and Equal Employment Opportunity Com- to the right go as Federal independent authority mission to issue go through board civil service orders, and requiring hearings cease desist system. court The amendment Federal EEOC, before the and providing for language was included be- strike review of cease and desist orders federal language be struck cause Appeals Courts of with review based on the spe- inappropriate to be to the thought developed during record EEOC grievance procedures adopted cialized and not de S.Rep. novo orders. See No. A employees. for Federal committee 92-415, 17-22, 22-23, 92d 1st Cong., Sess. (w) reading 706(g) through of sec. closer (1971); Cong., 37-41 S. 92d 1st Sess. been provisions that would have 4(a) (1971). [the Senator Gambrell’s amend- proposed stricken Dominick ment would have expressly permitted does indicate and, amendment] to award EEOC fees fur- waiving fees providing and ther, would have made reimbursement of applicable. court costs are the Commission or a court mandato- Therefore, objection no to the all ry respondent I have small business and amendment, (as organizations and if he would only up Senator’s labor defined and yea nay limits), regardless want to withdraw his re- to certain of whether me, fine quest, they prevailed question would be on the of discrimi- accept we can the amendment. nation. opening course his re- on marks the amendment Senator Gambrell Cong.Rec. at 956. Senator Dominick stated: he, too, clear made wished to thus President, anomaly allowing only Mr. avoid the Civil employees, employ- not Equal Employment Opportunity sector Acts themselves, ees, quoted being recover fees. The which are un- amended suggests, legislation, also passage pending already pro- that Sena- der pro- the attorney discretionary authority tor Dominick believed fee vide for the Com- applicable pay attorney to administrative mission to costs and fees vision He ceedings. expressly prevailing party referred to the such a case. procedure grievance proceeded against, words am “specialized other if I win, I employees” say, and concluded that can “We for Federal Commission providing sorry about the we “language attorney’s harassment have caused, waiving applicable.” pay your court costs are and we will costs strik- attorney Because Senator Javits’ amendment fees.” Cong.Rec. (emphasis at 1841-1842 add- ings before the Commission. So it liber- ed). Shortly thereafter Senator Gambrell alizes the awarding fee powers in that respect. stated: law, I present Second, Under as understand it makes awarding of such fees it, agrees a small businessman to a mandatory for small [when businesses and for against him], unions, consent order the Commis- they prevail when before the expenses could not allow and attor- sion Commission or before court, rather fees, neys’ respondent because the in the than leaving it discretionary as it is now. have prevailing case would not been a Id. at 1845. From statement, this it does party. This says long amendment that so seem that Senator Mondale’s understanding as he has conducted his defense in a man- of the pre-existing Title VII law on attor- ner purposes consistent with the of the neys’ fees was at variance with Senator itself, act he can paid and in fact must be Gambrell’s, but a more complete character- expenses his and attorneys’ fees. ization of Senator Mondale’s views on the issue is difficult. In particular, Id. passages, 1833. From these it is diffi- cult to discern from the passage obvious that quoted Senator Gambrell believed above whether Senator Mondale pre-existing that the provision believed that neither the Commission nor a permitted the Commission to award to the court could award attorneys’ fees for prevailing party attorneys’ ad- fees for services or, ministrative proceedings alternatively, at the administrative level. only the Commission’s authority was so lim- After Gambrell Senator had entertained ited. Although the passage quoted might questions from other senators con- certain seem support the former interpretation, cerning interpretation amendment, of his the context of the remarks lends some sup- proposed Senator Mondale a substitute port to the latter. amendment. explained Senator Mondale event, neither Senator Gambrell he what saw as two central differences nor Senator Mondale identified, ever much proposed his between substitute amend- discussed, less apparent their disagreement ment and Senator Gambrell’s amendment on the question of attorneys’ fees at the and, doing, in so expressed ap- what also Rather, level. Senator Mon- pears to have been a different opinion on dale’s substitute amendment was discussed pre-existing law concerning award of briefly and adopted. 118 Cong.Rec. at 1847. attorneys’ fees in connection with Title VII As thus modified Senator Gambrell’s litigation. Senator Mondale stated: passed amendment was then by the Senate. law, underlying The which is un- Id. bill, changed by provides that in any title, proceeding action or under Ultimately, rejected Senate court, discretion, may in its allow the that part legislation giving EEOC party prevailing than the Com- cease authority and desist and with it the —other mission or the United reasona- requirement States —a hearings before EEOC. 118 cost; ble fee as Cong.Rec. 3979-3980, 4944. The amend- the Commission and the United States ed attorney remained in the be liable for the shall costs the same as a passed by bill as the Senate but was deleted person. in conference. The respective conference reports, referring deletion, to this proposed The substitute would liberal- limited noting: themselves to ize that in two respects. basic First, authority it would add to award permitted Senate amendment pay- prevailing party respect costs to the ment of costs and counsel fees to small proceeding to the cost of a before the employers or organizations labor they if The underlying prevailed Commission. law to brought actions against them permit which I have referred does not the Commission or the United States. awarding respect proceed- of fees with An employer or union with 25 or fewer “prevailing party” the in attorneys’ fees to would have been or members employees employer $5000, specific brought under seven sec- up to actions entitled 25 to 100 with from Code: organization labor tions of the United States Sections or in- average whose 1985, 1986, 1981, 1982, 1983, or members employees and 2000d et less was such come from seq. 42, et of seq. of Title and Section 1681 $7500, entitled have been would than 94-1558, H.R.Rep. Title No. 94th 20.- See up to its defense cost of the one-half (1976).8 Cong., 2d Sess. comparable had no The House bill $2500. in catalyst The Act’s is clear. As noted receded. The Senate provisions. purpose “The of this report, the Senate 92-681, Cong., 2d 92d Sess. Rep. No. 5. remedy gaps is to anomalous amendment 92-899, Cong., 2d 92d H.R.Rep. No. (1972); rights by civil laws created the United our (1972). Again, it is difficult Sess. Supreme recent decision in States Court’s intended, vis-á-vis Congress what perceive Pipeline Co. v. Wilderness Alyeska Service proceed- for administrative attorneys’ fees 240, 1612, 44 Society, 421 U.S. [95 No mention acting as it did. ings, (1975), and to achieve consist- L.Ed.2d 141] authorization of express of the made ency rights S.Rep. in our civil laws.” No. which was includ- by EEOC of fees awards 94-1011, Cong., 94th 2d U.S. Sess. It amendment.6 Gambrell’s ed in Senator 1976, p. 5909.9 Cong. Code & Admin.News if, out, pointed should amending specified rights the civil' claims, such authorization Government the attorneys’ fees avail- existing so as to make change in statutes complete a represented brought would have in actions law, prevailing parties in conference able to deletion its thereunder, explanation. some Congress heavily at least drew on exist- merited provisions, particularly ing attorney fee fur- Congress provided has recently, More Rights of the 1964 Civil Act. Describ- those proper the indication of and clearer ther ing language of the bill that later be- provision. of the interpretation Act, report the House stated that came Congress 1976 the 94th On October it of the “tracks counsel Attorney’s Fees Rights “The adopted Civil 94-559, Titles II and VII of the Civil provisions of Pub.L. No. Act of 1976.” Awards Rights Act of and Section of the allows award 2641.7 The Act 90 Stat. Furthermore, report point “The affected has 8. As the House stated: out —as we should event, generally prohibit any denial of Supreme un sections of Title “[i]n Court—that variety rights attempts legislation are not the and constitutional in a civil areas, successful legislative guides Red Lion intent.” while referenced sections of Title 20 best FCC, sex, Broadcasting U.S. Co. deal with discrimination on account of 1794, 1802, n.11, blindness, L.Ed.2d 371 impairment or visual in certain edu- (1969). H.R.Rep. programs and activities.” No. cation 94-1558, Cong., A 94th 2d Sess. by and House of the Senate 7. Be enacted description purposes more detailed Representatives United States of operation provisions of these is also included assembled, Congress That America report. Id. at 4-5. may “The Civil Attor- be cited as Act ney’s Act 1976”. Fees Awards Alyeska held that un- section 2. That the Revised Statutes Sec. attorneys’ fees der the “American rule” that 1988) by adding (42 is amended ordinarily prevailing are not recoverable following: any proceeding “In action or litigation litigant in the absence of in federal provision of sections to enforce a authorization, statutory such fees could not be Statutes, of the Revised and 1981 “private attorney general” awarded under 92-318, or in civil title IX of Public Law approach. 421 95 S.Ct. 1612. proceeding, or on behalf of the or “Although Alyeska case involved envi- enforce, America, States of United charging concerns, ronmental the decision barred attor- of, a violation cases, ney range fee awards in a wide includ- Code, or title States Internal Revenue United 94-1558, ing rights.” H.R.Rep. supra civil No. court, Rights Act of VI of the Civil 8, at 2. note discretion, prevailing allow in its party, States, a reason- other than the United part of the costs”. fee as able

339 (1942); Act Amendments of 1975 L.Ed. Voting Director, 1501 Office of [42 Wkrs. 1973(e) (Section 402)].” H.R.Rep. Comp. Programs v. Boughman, 178 U.S. 94-1558, (footnotes omitted). supra, at 5 No. 138, App.D.C. 132, 210, (1976); 216 both the reports The from House committee Mount Hospital Sinai Miami, Greater case law analyzed that Senate Inc. v. Weinberger, 329, 517 (5th F.2d 343 developed statutory under various at- had 1975).11 Cir. provisions, but concentrated on torney fee sum, unpersuaded by we are the histo- Title II and Title VII that of the ry of pertinent legislation that the Dis- adopted. H.R.Rep. it No. whose trict Court’s decision was erroneous. Rath- 6-9; 94-1011, 94-1558, supra, S.Rep. No. er, we such find in materials considerable 3-6, Cong. supra, at & Admin. U.S.Code evidence District Court’s decision 1976, p. analysis In that News correctly implemented both the letter and expressly approvingly cit- report House spirit central of Title VII. Court in ed the decision of District 94-1558, H.R.Rep. supra, case. No. instant ROBB,

at 7.10 Judge, Circuit concurring: course, acknowledge, of legisla- We result, I concur in the adminis- subsequent passage tive statements of a phases trative of federal employment dis- weight equal do not deserve given act controversies, crimination distinguished contemporaneous- that of statements made sector, from such cases are ly passage. Waterman Steamship attorneys’ fees are States, v. Corp. United 381 U.S. 85 recoverable prevailing party. (1965); 14 S.Ct. L.Ed.2d 370 United Price, 304, 312-313, v. States Still, 4 L.Ed.2d 334 such

S.Ct. are entitled to careful

statements consider- a secondarily

ation “as authoritative ex-

pression expert opinion.” Corp. Bobsee States, (5th

v. United F.2d n.18 1969). also Lion Broadcasting

Cir. See Red FCC, 367, 379-381,

Co. v. 395 U.S. (1968) (legislation 23 L.Ed.2d de- statute;

claring previous citing intent

cases); v. Tribe of Indians United Sioux

States, report despite disagreement major The observed: been cited with a case, e., issue in i. whether phrase party” “prevailing is not in- can be awarded for services rendered in the to be victor tended entry limited to the after proceedings' issue which following judgment a final a full trial —an obviously subject relevant to the on the merits. It would also include a liti- report. gant who succeeds even if the case is con- prior evidentiary hearing cluded to a full be- Sutherland, 11. See 2A A. Statutes Statuto- judge jury. litigation fore a If the termi- ry ed., (4th Sands, 49.11 at Construction decree, example, consent nates 1973): ed. proper would be to award counsel fees. In- Although comments about an earlier act in County Fair, Men carcerated of Allen legislative report committee on a subse- (6th 1974); F.2d 281 Cir. Parker v. Matthews quent legislative bill are not histo- [sic], F.Supp. (D.D.C.1976); Aspira ry of the earlier act and therefore have less York, Inc., v. of New Board Education of probative legislative history, they force than York, City (S.D.N. New 65 F.R.D. 541 expert entitled consideration as * ** Y.1975). opinion concerning proper interpretation. its 94-1558, supra H.R.Rep. No. note at 7. (Footnote omitted.) See also Mount Sinai Hos- Although passage not cite does the lower pital Miami, Weinberger, of 329, Inc. Greater point precise question court decision for the (5th F.2d Cir. here, we doubt that the decision would have notes days, Congress hardly presumed could be “pro- as a by this subsection is characterized have intended to only defer to state or local 706(j), ceeding” by 42 U.S.C. Section Rather, proceedings. it was clearly 2000e-5(j) V (Supp. § administrative proceedings to which Con- is argument, Appellant’s referred, gress Pullman, see Love v. nor appellee the mark. Neither wide of 522, 524-526, 92 S.Ct. 30 L.Ed.2d “proceed assumes that the term this court (1972), and, fact, in many states have by VII never refer ing(s)” as used in Title can established, now as Congress envisioned, ad- Quite contrary, echoing a suit. to court proceedings ministrative to handle claims of States, supra, we believe v. United Johnson employment discrimination. Even appel- enough to is broad “proceeding” that, lant does deny not in these provisions, judi to refer to either properly construed Congress was referring to administrative This proceedings. cial or administrative proceedings. by out other uses of the term view is borne Furthermore, we particularly find in- 2000e-5, in the Section U.S.C. § structive comparison of the language of structure where it is clear be enforcement the attorney VII, yond any Congress provision doubt that was refer of Title Sec- ring proceedings. 706(k), to administrative Section tion 2000e-5(k), U.S.C. § 2000e-5(b) 706(b), (Supp. V U.S.C. § that of the attorney of Title 1975), “findings and orders made discusses II, 204(b) Section of the Civil Act of proceedings or local authorities State 1964, 42 2000a-3(b) U.S.C. § pursu commenced under or local law State provisions were enacted contemporaneously (c) requirements ant to the subsections part 1964 as of the Act. The language of added.) (d) (Emphasis section.” of this the two that, subsections is identical except 706(c), 2000e-5(c) (Supp. 42 U.S.C. § Section where 706(k) “any refers to action 1975), requires in private V which sec or proceeding under subchapter,” Sec- charges discrimination tor 204(b) tion refers simply “any defer, 60-day period, for at least a EEOC pursuant commenced to this subchapter.” applicable operation state or local (Emphasis added.) This material difference law, repeatedly “proceedings”: refers is only light understandable of the fact any requirement If for the commence the enforcement scheme of Title II is imposed such is ment of solely judicial, see Piggie Newman v. Park authority or local other than a re State 400, 401-402, Enterprises, 390 U.S. quirement filing of a written and 19 L.Ed.2d 1263 while the en- signed upon statement of the facts forcement scheme of Title VII is both ad- based, proceeding proceeding is judicial.19 ministrative and Cf. Lea v. Cone shall be deemed to have been commenced Mills Corp., (4th 90-91 Cir. time such statement 1971) (Boreman, J., concurring in by registered appropriate sent mail to the authority. dissenting part). State or local The inclusion in Sec- (1973) (construing 18. In the 1972 amendments to Title VII the 37 L.Ed.2d 48 similar change 706(i) Emergency made in was substitution of the in the School Aid Act of (e) 1975)) (“The words “this section” for “subsection of this (Supp. V

Case Details

Case Name: Dorothy C. Parker v. Joseph A. Califano, Jr., Secretary of Health, Education and Welfare

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jun 30, 1977

Citation: 561 F.2d 320

Docket Number: 76-1416

Court Abbreviation: D.C. Cir.