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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1292%3A11

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1981
- **Citation:** 450 U.S. 346

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1292%3A11. Public record. Not legal advice.