Amicus Curiae Brief — Delta Air Lines, Inc. v. August

TABLE OF CONTENTS

PAGE

INTEREST OF THE AMICUS 1

CONSENT OF THE PARTIES 3

SUMMARY OF ARGUMENT 3

ARGUMENT:

5

Courts Are Without The Power To Burden Sub-

stantive Rights Granted By Congress ...................... 4

Il.

Defendant’s Offer Of Judgment Under Rule 68

Did Not Meet Plaintiff’s Demand For Relief ........ 11

NER er ae NT TT a eS TE 13

APPENDIX:

Consent of Rosemary August ...................:::eccsseseeeeeees la

Consent of Burr E. Anderson. .....0................:-s0-0000+ 2a

TABLE OF AUTHORITIES

Cases

Albemarle Paper Company v. Moody, 422 U.S. 405, 95

S.Ct. 2362 (1975) a %03

Alyeska Pipeline Services Co. v. Wilderness Society,

421 U.S. 240, 95 S.Ct. 1612 (1975)

Christiansburg Garment Co. v. Equal Employment Op-

portunity Commission, 434 U.S. 412, 98 S.Ct. 694

(1978) 6, 7, 9

i

Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849

NC EGR REE nes 4

Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136 (1965) _.. 10

Helvering v. Gowran, 302 U.S. 238, 58 S.Ct. 154 (1987) 8

Mr. Hanger, Ine. v. Cut Rate Plastie Hangers, Ine., 63

ef se ge 88 ke | ea ee none 12

Newman v. Piggie Park Enterprises, 390 U.S. 400, 88

Ae, Te CRD crrerectiecencetstorsen . 4

Scheriff v. Beck, 452 F.Supp. 1254 (Colo. 1978) ............ 12

Sibbach v. Wilson & Co., 312 U.S. 1, 61 S.Ct. 422 (1941) 10

Other Authorities

Ts CIEE iestnsbiienteneedecnieinsentianiinniinissecinicinenpentinatn 10

SRE A UII GI WII: cincsnasccsdesnesinnncasbcienciliaaninnsstonansiiiiiiamiomia 11

Rule 11, Federal Rules of Civil Procedure ...................... 8

7 Moore’s Federal Practice, § 68.04 (1975)... 12

1964 Civil Rights Act, Section 706(k) -............-........-- 5, 6

1964 Civil Rights Act, Section 706(f)(1) ...................-.-- 4

In THE

Supreme Court of the United States

Ocroser Term, 1979

DELTA AIR LINES, INC.,

Petitioner,

vs.

ROSEMARY AUGUST,

Respondent.

BRIEF OF THE NATIONAL ASSOCIATION FOR

THE ADVANCEMENT OF COLORED PEOPLE

AS AMICUS CURIAE

INTEREST OF THE AMICUS

The National Association for the Advancement of

Colored People (NAACP) is a non-profit membership

association representing the interest of approximately

500,000 members in 1800 branches throughout the Un-

ited States. Since 1909, the NAACP has sought through

the courts, the legislative and the executive branches of

ties

government to establish and protect the civil rights of

minority citizens. In these efforts, the NAACP has often

appeared before this Court as an amicus in cases in-

volving voting rights, jury selection, capital punishment,

school desegregation, employment discrimination and

other cases involving individual rights protected by the

Constitution of the United States, and in cases protect-

ing the vitality of the Bill of Rights.

The case at bar is of particular interest to the

NAACP. It involves the review of a judgment which, if

reversed, will in ail likelihood put Title VII plaintiffs in

a financially precarious position if they should believe

sufficiently in their case to pursue it to judgment. It

would indirectly deny to the district courts of this coun-

try the discretion to implement the purposes of Title

VII. The Congress has sought the assistance of private

litigants to come into the federal courts to pursue their

right to employment without discrimination on the basis

of race, religion, sex or national origin recognizing

that government resources alone cannot turn the tide of

discrimination in employment.

The importance of this case is that reversal would

place a club in the hand of employers which could bring

financial ruin to plaintiffs who bring Title VII actions.

It would be particularly unfortunate for those litigants

who are without resources and for whom the district

court has appointed counsel and allowed them to

proceed without payment of fees, costs or security as

provided by Title VII. Such was never intended by the

Congress of the United States.

=

CONSENT OF THE PARTIES

With the consent of both parties pursuant to Rule 42

of the Supreme Court Rules, Amicus respectfully sub-

mits this brief in support of Respondent, Rosemary

August. The consents are included in the Appendix to

this Brief.

SUMMARY OF ARGUMENT

This Court does not have the power to abridge sub-

stantive rights in the guise of enacting Rules of

Procedure. Acceptance of defendant’s arguments would

place this Court in such a posture. The Congress enacted

substantive legislation to eradicate discrimination in

employment, and encouraged the penurious complainant

to seek redress by providing judicial discretion to ap-

point counsel, waive fees, and award attorneys fees and

costs. The application of Rule 68 to Title VII cases

would abridge that judicial discretion, place com-

plainant’s counsel on the horns of a dilemma, and

frustrate the purposes of Title VII. Furthermore, even if

Rule 68 applies, defendant's offer of judgment failed to

meet the plaintiff's demand for relief, thus, it did not

satisfy Rule 68.

ARGUMENT

1

COURTS ARE WITHOUT THE POWER TO BURDEN

SUBSTANTIVE RIGHTS GRANTED BY CONGRESS.

The Congress, in its wisdom, addressed the vast

problems of discrimination in this country by enacting

the 1964 Civil Rights Act. It provided for the elimina

tion of diserimination in publie accommodations and

facilities, education, employment and in the use of

federal funds in any area. In addressing the problems of

discrimination in employment, it enacted “a complex

legislative design directed at a (sie) historic evil of

national proportions.” Albemarle Paper Company +

Moody, 422 US. 408, 416, 96 S.Ct. 2262, 2871 (1975).

The purpose of this design “was to achieve equality of

employment opportunities and remove barriers” that

have operated in the past to faver an identified group of

white emplovees over other emplovees”. Griggs vr Duke

Power Co. 401 U.S. 424, 429-430, 81 S.Ct. R49, BAS

(1971)

This Court reeognized that the Congress knew that the

federal government. alone, could not enforce the Civil

Rights Law and observed in Newman rv. Page Park

Enterprises, 390 US. 400, 401, 88 S.Ct. 964, 966 (1968):

When the Civil Rights Act of 1964 was passed, it

was evident that enforcement would prove difficult

and that the Nation would have to rely in part upon

private litigation as a means of securing broad com

pliance with the law... .

In drafting Title VII. the Congress included two

provisions to encourage private enforcement of the Act.

Section 706({\ 1) provided:

f-

the court may appoint an attorney for such

complainant and may authorize the commencement

of the action without the payment of fees, costs, or

security... .

This provision was clearly directed to encourage the

complainant of limited means to take his claim of dis-

crimination to court in the event he was not satisfied by

the outcome of his claim at the Equal Employment Op-

portunity Commission. It did not distinguish between

the complainant whose charge was found to have merit

hy the Equal Employment Opportunity Commission and

the complainant whose charge was found to be lacking

in merit. The Congress rightfully recognized that there

could be substantial differences of opinion between

clerks in an administrative agency and the judges who

have heen appointed by the President and whose

qualifications have been examined by the Senate of the

[Inited States. Experience has demonstrated that the

penurious claimant whose claim is found to be without

merit: by the Equal Employment Opportunity Commis-

sion does prevail from time to time in the district court.

That sort of complainant must be protected.

The Congress also provided in Section 706(k):

In any action or proceeding under this. title {42

U.S.C. § 2000e, ef seq.| the court, in its diseretion,

may allow the prevailing party, other than the

Commission or the United States, a reasonable at-

torney'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.

This section gave the district court the discretion to

determine how costs should be borne by the parties.

The common law in the usual case made no provision

for costs of litigation. In the United States, legislation

has provided for distribution of the cost of litigation. Ex-

cept for very Limited eirenmetanees. attorneys fees have,

generally heen the burden of each party te the litigation

tn the extent that each litigant ineure the aservires of

lawyers Phie Court examined thie “Ameriean Rule” and

after an extensive review of the FEnglich evetem and

Aimerioan lepialation over the vears. determined that the

Rule ctill applies unless a legislature enacted legislation

fy provide for the award of eoste Nyeeko Papeline Ser

seer Co Woldernere Soctetu. AVI US 240, Oh St

1G19 (17K) The treeko ease makes it ervetal clear that

there ie ne ripht fe attorney feea and enste except that

the vipht ia ectabliched bw etatute

Vhe Conpress hae etated ite polier in geetion 70600)

that an Vitle VU litigation. the dietrief eourt has disere

fon fe award eoete fe a prevailing party Interestingly,

Tithe VU dee net require that a partienlar party is te

have enete awarded Apparently. the Congress was will

ing te rely on the eourte toesctablish, by udieial Rule’ a

method of determining whe wae entitled to eosts as a

matter of aouned jidieial diseretion We angpest that this

Conrt’s examination of Tithe VIL particularly seetion

“OR has cet ont reasonable guidelines for determining

what ye informed qudietal diseretion and when eests and

fees should be imposed Tn this connection we partienlar

IW omvite the Court's attention fe its deeision in

Chooshomshure Garment Coe Raval b’mploument Op

wetwnity Commession, 424 1S. 419, 417-424, O8 SOF

694 BAS TOT ClPTS) 1 is clear, from the Court's ex

amination of the legislative history of Tithe VIL and the

Geosion in that ease. that the complainant whe lost, was

to be further “punished” only if his action was found toe

he vnreasonable. frivolous, meritless or vexatious, While

the Choustiamshune Garment ease addressed itself only to

the question of attorneys fees for a prevailing defendant,

we saggest that the principles announced by the courts

in iti ease is entirely consistent with the remedial

nature oof the Civil Rights Aet of 1964 The

(hristianshuryg Garment case was not an isolated case or

an sherration ‘This Court in Alhemarte Paper Company

er Moody, A22 1S 408, 416, 95 St 2262. 2270 ( 1975)

decided a littl: over a month after Alyeska. commented

on section TO60k)

The Court held there (Newman » Pigqie Park

enterprises, B90 TIS 400, 8® S Ct 964A). that at

torneys fees should “ordinarily” he awarded ie, in

all but “special circumstances” to — plaintiffs

sneeessful in obtaining injunetions against dis

erimination in public accommodations, under Title

Hoof the Civil Rights Act of 1964. While the Act

appears to leave Title TT fee awards to the district

court's diseretion, 42 17S © § 2000a 4h). the court

determined that the great public interest in having

injunetive action brought could be vindicated only

if suecessful plaintiffs, acting as “private attorneys

yeneral’, were awarded attorneys fees in all but

very unusual circumstances. There is, of course, an

equally strong public interest in having injunetive

actions brought under Tithe VII, to eradicate dis-

criminatory employment practices. But this interest

can be vindicated by applying the Magi Mark stan-

dard to the atorneys’ fees provision of Tithe VIL, 42

WSC § 20006 Wk), see Northeross » Me m phis

Roard of Kducation, AV2 TS) A427, 42% 92 St

2201, 2202, 37 1 Bd 2d A® (1973)

The scheme devised by Congress to deal with the

problem of discrimination in employment, has been ap

proved by this Court in numerous cases. The court's dis

cretion to appoint counsel and allow filings without fee,

coupled with its discretion to award attorneys fees and

costs to a prevailing party is an integral part of tne

rights afforded complainants who seek a remedy for dis-

crimination in employment which violates Title VII of

the Civil Rights Act of 1964 as amended. In considering

on

the arguments here raised in support of the Seventh Cir-

cuit Court of Appeals result, we respectfully suggest

that this Court should be mindful of its decision in

Helvering v. Gowran, 302 U.S. 238, 245, 58 S.Ct. 154,

158 (1937), in which the Court stated that:

In the review of judicial proceedings the rule is

settled that, if the decision below is correct, it must

be affirmed, although the lower court relied upon a

wrong ground or gave a wrong reason. F'rey & Son,

Inc. v. Cudahy Packing Co., 256 U.S. 208, 41 S.Ct.

451, 65 L.Ed. 892; United States v. American Ry.

Erp. Co., 265 U.S. 425, 44 S.Ct. 560, 68 L.Ed. 1087:

United States v. Holt State Bank, 270 U.S. 49, 56, 46

S.Ct. 197, 199, 70 L.Ed. 465; Langnes v. Green, 282

U.S. 531, 51 S.Ct. 248, 75 L.Ed. 520; Stelos Co. v.

Hosiery Motor-Mend Corp., 295 U.S. 237, 239, 55

S.Ct. 746, 79 L.Ed. 1414; ef. United States v.

Williams, 278 U.S. 225, 49 S.Ct. 97, 73 L.Ed. 314.

We recognize that there is nothing in the Civil Rights

Act of 1964, as amended which would prohibit the ap-

plication of the Federal Rules of Civil Procedure in

their entirety to Title VII litigation. However, the pur-

poses of the Aci should not be ignored when the Court

examines that question. It is clear that the application of

Rule 68, Federal Rules of Civil Procedure, can frustrate

the policies underlying the Act which were promoted by

the Congress of the United States. Indeed, applying Rule

68 in Title VII cases places an unconscionable burden on

lawyers who represent complainants of discrimination in

emplcyment. On the one hand, pursuant to Rule 11 of

the Federal Rules of Civil Procedure, the attorney

represents to the court that he believes the client’s case

has merit. It may well be that he is wrong. There is

further imposed upon counsel for the complainant the

burden of determining and advising the complainant

whether he should go forward on his case when an offer

=

is me pursuant to Rule 68, knowing that if he is

wron, well destroy any chance of that complain-

ant be, - to support himself and his family even if

he is gz ly employed. We can only assume that

defendant: t in good faith and only do those things

which it believes to be necessary to prepare itself to de-

fend a serious charge which has been brought against it.

In the large enterprise such preparation may entail

deposing numerous people who are all mentioned by the

complainant as being persons who have knowledge of

the conduct about which the complainant complains.

In today’s world, the minimum expense may be sev-

eral thousands of dollars. This Court’s observation in

Christiansburg Garment Co. v. E.E.0.C., supra, 98 S.Ct.

at 700 is apt when considering the lawyer’s dilemma.

In applying these criteria, it is important that a

district court resist the understandable temptation

to engage in post hoc reasoning by concluding that

because a plaintiff did not ultimately prevail, his

action must have been unreasonable or without

foundation. This kind of hindsight logic could dis-

courage all but the most airtight claims, for seldom

can a prospective plaintiff be sure of ultimate success.

... The law may change or clarify in the midst of

litigation. (emphasis supplied)

We suggest that the whole of Title VII of the Civil

Rights Act of 1964 as amended, establishes a substantive

right which the Congress, under the Constitution, had a

right to do. It is incongruous that the Congress would es-

tablish a substantive right, invite the penurious com-

plainants into the courts, and then intend for them to be

saddled with large ungainly debt for costs in the event

that they are unable to establish, to the court’s satisfac-

tion, that in fact, the complainant was discriminated

against in employment. We suggest that it was not the

intent of Congress to expose people to the possibility of

—10—

bankruptcy in enacting this legislation. We further

suggest that it was not the intention of Congress to

grant this Court or any district court the authority to in

any manner modify any substantive right determined by

the Congress. In 28 U.S.C. § 2072, the Congress, in

authorizing this Court to promulgate Rules of Civil

Procedure, specifically provides that “such rules shall

not abridge, enlarge or modify any substantive

right... .” The Rules of Civil Procedure are, rules for

the court to carry on its business in an orderly fashion,

in effect, housekeeping rules. Ne authority was intended

or granted for the Rules of this Court to be applied to

substantive legislation to destroy the effect of the sub-

stantive rights granted by Congress. This Court in Han-

na v. Plumer, 380 U.S. 460, 464, 85 S.Ct. 1136, 1140

(1965), quoted from Sibbach v. Wilson & Co., 312 U.S. 1,

14. 61 S.Ct. 422, 426 (1941), when it was asked to deter-

mine whether a federal rule applied.

The test must be whether a rule really regulates

procedure,—the judicial process for enforcing rights

and duties recognized by substantive law and for

justly administering remedy and redress for dis-

regard or infraction of them.

This Court has recognized, more than once, the sub-

stantive rights provided for in Title VII of the Civil

Rights Act of 1964 as amended. We suggest that the

ease at bar demonstrates the real possibility of Rule 68

placing such a burden on the decision to seek redress for

employment discrimination, that the rule would dis-

courage actions which Congress has determined should

be encouraged. This is a burden, on the substantive

right, of such magnitude as to abridge or modify the

right, which the Congress has specifically prohibited.

We suggest that this Court’s determination should be

that Rule 68 may not constitutionally be applied to Title

VII litigation.

=

Il.

DEFENDANT'S OFFER OF JUDGMENT UNDER

RULE 68 DID NOT MEET PLAINTIFF'S DEMAND

FOR RELIEF.

Amicus have argued that Rule 68 does not apply to Ti-

tle VII cases. However, if this Court should determine

that it does, defendant has not met the requirements of

the Rule with its offer of judgment of “$450.00 which

shall include attorney's fees, together with costs accrued

to this date.” (Jt. App. pp. 33-34). Plaintiff in her com-

plaint sought reinstatement, back pay. benefits, other

equitable relief, and attorneys fees and costs all pur-

suant to Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e et seg. The offer and the prayer do not

meet.

The relief contemplated in Title VII is of an equitable

nature. As stated by this Court in Albemarle Paper Co.

v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 2372 (1975)

in discussing whether the court could award back pay.

It is also the purpose of Title VII to make persons

whole for injuries suffered on account of unlawful]

discrimination. This is shown by the very fact that

Congress took care to arm the courts with full

equitable powers. For it is the historic purpose of

equity to “securle] complete justice.” (citations

omitted). ... Where racial discrimination is con-

cerned, “the [district] court has not merely the

power but the duty to render a decree which will so

far as possible eliminate the discriminatory effects

of the past as well as bar iike discrimination in the

future.” Louisiana v. United States, 380 U.S. 145,

154, 85 S.Ct. 817, 822, 13 L.Ed.2d 709 (1965).

Defendant's offer of judgment makes not the slightest

attempt to meet the demand for equitable relief outlined

in plaintiffs prayer. It merely addresses a damage

award and attorney fees and costs. It does not address

reinstatement, back pay, benefits or injunctive relief of

any sort. For an offer of judgment to be sufficient to

trigger the application of Rule 68, it must reasonably

encompass tae relief prayed for. 7 Moore's Federal Prac-

tice, § 68.04 pp. 68-69 (1975).

Case law on Rule 68 is sparse. In Scheriff v. Beck, 452

F Supp. 1254 (Colo. 1978), a civil rights case arising un-

der 42 U.S.C. §§ 1983 and 1988, defendant made an

offer of judgment excluding attorney fees. The district

court held the offer did not satisfy Rule 68 because it

did not include “costs then accrued” which in civil rights

cases includes attorneys fees. In Mr. Hanger, Inc. v. Cut

Rate Plastic Hangers, Inc., 63 F.R.D. 607 (E.D.N.Y.

1974) a patent infringement case, the offer was $25.00

and notice that defendant would cease the alleged in-

fringement. The court held that that offer was valid.

Neither case, ner others, definitively set out what sort of

offer satisfies Kule 68.

The language in Rule 68 states that the offer must be

to “allow judgment to be taken against him for the

money or property or to the effect specified in his offer,

with costs then accrued.” For a plaintiff to understand

the offer and to be clear that defendant is addressing all

relief claimed by plaintiff, especially in a Title VII case

where relief is not confined, the defendant must address

all possibilities with specificity. Here defendant men-

tions money only and costs and attorney fees. Does this

money include a possible back pay award? Nowhere

does defendant mention the other benefits which were

attendant to plaintiff's employment. Nowhere does

defendant mention reinstatement. Nowhere does defen-

dant mention that it would not discriminate in the

future. The offer of judgment is in the nature of an offer

to settle the litigation and all relief aspects should be ex-

pressly included or excluded so that plaintiff knows

what he is refusing. The apparently discretionless

consequences under Rule 68 mandates that the offer of

judgment be precise and complete.

CONCLUSION

This Court should determine that Rule 68 does not

apply to Title VI! as to do so would abridge substantive

rights given under Title VII and would exceed the

Court’s authority to promulgate rules for uniform court

procedure. In the alternative, the Court should find that

defendant’s offer does not meet plaintiff's demand for

relief.

Respectfully submitted,

ALDUS S. MITCHELL

SOPHIA H. HALL

134 South LaSalle Street

Chicago, Tlinois 60603

(312) 346-6789

-—la—

APPENDIX

ROSEMARY AUGUST, hereby consents to the National

Association for the Advancement of Colored People

filing an Amicus brief on behalf of Rosemary August in

the matter entitled:

Delta Airlines, Inc.

VS.

Rosemary August

No. 79-814

United States Supreme Court

ROSEMARY AUGUST

BY /s/ SUSAN MARGARET VANCE

GLAZER & VANCE

179 West Washington Street

Chicago, Illinois 60602

(312) 346-6789

—2a—

The Law Offices Of

KOVAR & SMETANA

A Professional Corporation

100 South Wacker Drive ¢ Suite 1526

Chicago, Illinois 60606

(312) 346-4515

28 July 1980

Aldus S. Mitchell, Esq.

Mitchell, Hall, Jones & Black, P. C.

134 South LaSalle Street

Suite 700

Chicago, Illinois 60603

Re: Delta Air Lines, Inc. v. August

No. 79-814

Dear Mr. Mitchell:

Thank you for your letter of July 22, 1980 to Allan

Kovar.

The Petitioner, Delta Air Lines has no objection to

your filing of a brief in the above-captioned matter as an

amicus curiae, pursuant to the Rules of the Supreme

Court.

Very truly yours,

/s/ BurRR E. ANDERSON

BEA:ef