Reply Brief — Shannon v. Department of Housing & Urban Development

ILED

IN THE NOV 17 1979

SUPREME COURT OF THE UNITED STATES

MAURICE SHANNON, Ct al., Petitioners

®

U,

UNITED STATES DEPARTMENT OF HOUSING

AND URBAN DEVELOPMENT, Ct al.

REPLY BRIEF FOR PETITIONERS

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Third Circuit

MICHAEL CHURCHILL

THOMAS K. GILHOOL

Attorneys for Petitioners

Public Interest Law Center of Philadelphia

1315 Walnut Street, Suite 1600

Philadelphia, Pennsylvania 19107

(215) 735-7200

THE LEGAL INTELLIGENCER, 66 NORTH JUNIPER STREET, PHILA, PA. 19107 (215) 561-4050 +e

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1978

No, 78-369

MAURICE SHANNON, Ct al,, Petitioners

U,

UNITED STATES DEPARTMENT OF HOUSING

AND URBAN DEVELOPMENT, et al,

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Third Circuit

REPLY BRIEF FOR PETITIONERS

Petitioners rely on their Petition for Certiorari to sup:

port their argument that the Civil Rights Attorney's Fees

Awards Act of 1976 waived sovereign immunity and that

any other conclusion conflicts with the unmistakable in-

tention of Congress to encourage private attorneys general

and with this Court's statement in Alyeska Pipeline Ser-

vice Co, v, Wilderness Society, 421 U.S, 240, 267 (1975)

that “it would follow in such cases that attorney's fees

should be awarded against the Government or the officials

themselves,” (Pet. 8), The legislative history of the Act

supports that interpretation. In addition, Congress explicitly

expressed its understanding that the general form of lan-

guage used in the Fees Awards Act is effective to waive

sovereign immunity in the legislative history of the Clean

Air Act Amendments of 1977 which utilized similar gen-

eral language. (Pet. 6-7), Consequently, this brief is lim-

ited to pointing out that certain arguments made by the

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respondents are not conclusive of a contrary interpretation

as asserted,

1, The suggestion that the amendment to authorize

awarding fees against the United States in tax cases con-

stitutes Congressional recognition “that the bill did not

generally authorize fees against the United States” (Br, 5)

is completely fallacious, The amendment was necessary to

expand the scope of the bill from civil rights cases to tax

cases, It contains no “explicit authorization” of fees against

the United States, but authorization by “necessary implica:

tion.” It does not therefore,’ “demonstrate” that fees are

not authorized for civil rights cases, To the contrary,

Senator Allen, in introducing his amendment, stated that

it allowed recovery of attorney's fees “just as in the other

cases”, 122 Cong, Ree, § 17049 (daily ed, Sept, 29, 1976)

and Senator Goldwater had urged a similar amendment

“to help the victim of tax abuse as much as we help other

victims whose rights are impaired,” 122 Cong, Ree, § 16446

(daily ed, Sept, 22, 1976),

2, Respondents have failed to tell this Court that the

amendment (No, 470) offered by Senator Helms and re-

jected by the Senate “that would have imposed the cost of

attorney's fees on the government” (Br, 6) would also have

extended attorney's fees to prevailing parties in all civil

cases, not just civil rights actions, to acquitted defendants,

and to prevailing parties in agency proceedings, 122 Cong,

Ree, § 16257 (daily ed. Sept, 21, 1976), Rejection of that

expansive amendment is not persuasive that the Senate

rejected the modest principle of treating the United States

like all other losing parties in civil rights cases,

Furthermore, the Senate rejected an amendment by

Senator Allen (No, 2388) which would have explicitly

exempted federal, state and local officials from paying

attorney's fees unless they acted in a contumacious or

vexatious manner, a provision which would have been

unnecessary unless the Act waived sovereign immunity and

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applied to federal officials. 122 Cong. Rec. S 16567, S 16637

(daily ed, Sept, 27, 1976),

3, There is no evidence that Mr, Railsback—the rank-

ing minority member of the Sub-Committee which reported

the bill—was “confused” or that he “thought only that

attorney's fees could be awarded against the United States

as plaintiffs.” (Br, n.7), His statements (Pet, 9-10) that

sovereign immunity was waived were framed in terms

of the United States as plaintiff since those were the ques:

tions asked, but they were not based on any special provi-

sion regarding the United States as a plaintiff, Rather they

were based on the general principle that the civil rights

portion of the Act as well as the tax portion applied to the

United States, It is not surprising that respondents offer no

citations for their suggestion that the Act might authorize

awards against the United States in civil rights cases only

where it was a plaintiff,

4, Although the accompanying House and Senate Re:

ports did state that no additional costs to the government

would be incurred as a result of the legislation, there are

no line item amounts in either the federal budget or the

Department of Justice Appropriations Act, 1977, PLL,

94-362 for payment of costs in cases lost by the Justice

Department even under the several acts such as Tithe VII

and the Clean Air Act where fees are explicitly authorized,

Presumably, the amounts involved are insignificant in a

budget where the total sought for “Claims, Judgments and

Relief Acts” was $225 million, The Budget of the United

States, Fiscal Year 1977, Appendix p,606,

5. The fees initially acquiesced to by the Justice De-

partment and awarded by two district court judges in

Women’s Equality Action League v, Califano, Civ, No, 74:

1720 (D.D.C, May 3, 1978) and Adams v, Califano, Civ, No.

3095-70 (D.D.C, Oet, 25, 1977) were not authorized by 20

U.S.C, $1617 as stated by respondents (Br, n.4) since

§1617 only applies to actions relating to elementary and

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secondary education. The Adams decree of October 25,

1977. relating solely to higher education, therefore relied

only on §1988 for the award of fees. The decrees in

Women's Equality Action League v. Califano awarded fees

for Title IX issues (which are not covered by §1617) as

well as for Title VI and for issues relating to higher educa-

tion as well as to secondary and elementary education and

could therefore not have been supported solely by §1617.

This issue of the federal government’s liability for at-

torney'’s fees under the Fees Awards Act will arise repeat-

edly in federal civil rights litigation and must eventually

be determined by this Court. There is no obstacle to deter-

mination of the issue in this case. Little will be gained by

further review of the brief legislative history in the circuit

courts and prejudice will result to the plaintiffs herein if

this matter is decided favorably to their position at some

later date,

CONCLUSION

For the reasons stated, the petition for a writ of

certiorari should be granted.

Respectfully submitted.

MICHAEL CHURCHILL

THOMAS K. GILHOOL

Attorneys for Petitioners

Public Interest Law Center of Philadelphia

1315 Walnut Street, Suite 1600

Philadelphia, Pennsylvania 19107

(215) 735-7200