Petition — Andrulis v. United States
Supreme Court brief1980
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MICHAEL RODAK, JR., CLERK
IN THE
Supreme Court of the United States
OCTOBER TERM, 1979
‘
“= «79-1542
MARILYN W. ANDRULIS
and
ANDRULIS RESEARCH CORPORATION,
Petitioners,
Ve
UNITED STATES et al.,
Respondents.
PETITION FOR A WRIT OF CERTIOF.ARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
Of Counsel: I. MICHAEL GREENBERGER
SHEA & GARDNER 1800 Massachusetts
1800 Massachusetts cee ¢4 = lai
) Avenue, N.W. Scag. vgmedieigam
(202) 828-2000
Counsel for Petitioners
Washington, D.C. 20005
Dated: April 2, 1980
WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON. D.C. 20001
TABLE OF CONTENTS
Page
TABLE OF CONTENTS i
TABLE OF AUTHORITIES ii
OPINIONS BELOW 2
JURISDICTION 2
QUESTIONS PRESENTED . 2
STATUTES INVOLVED ....WW.o. uu. 2
STATEMENT OF THE CASE 4
A. Background ............ us a 4
TB ee I 6
REASONS FOR GRANTING THE WRIT 10
dh; FR a i 10
B. “Sue and Be Sued” Clause. - 15
CONCLUSION ...... 18
APPENDICES: |
A. Opinion of the court of appeals _........................ la
B. Orders of the district court 38a
C. Judgment of the court of appeals 4la
D. Court of appeals’ denial of petiiton for re-
hearing ...... 48a
ii
TABLE OF AUTHORITIES
Cases: Page
Adams Vv. Richardson, 156 U.S. App. D.C. 267, 480
P34 1100 (1078) ccc Te a Ree 11
Baker v. F & F Investment Co., 489 F.2d 829 (7th
Cin, SIGS? ccc ctecetanen idee aes Big eae 11
Bowers v. Campbell, 505 F.2d 1155 (9th Cir.
J | Fea M aR SMT ROR MN A AEE LR. ERAT eR 11
Cannon v. University of Chicago, 441 U.S. 677
6 5: | pO RRaR nn EROS I 7s. SM USURE EIN SERA 15
Cassata V. Federal Savings and Loan Ins. Corp.,
445 F2a-188. CR Ge BTR) cn 16
Dry Creek Lodge, Inc. v. United States, 515 F.2d
BG Be OS | i ee ee women 11
Fairmont Creamery v. Minnesota, 275 U.S. 70
CTY arcade a en ecesecehinirearabn 8
FHA V. Burr, 309 U.S. 242 (1940) .......0.000222.2-.-.-.-- 16
Gautreaux Vv. Romney, 448 F.2d 731 (7th Cir.
| MO REMenre anne nas ee >. 16 URS, «eee, Ona 11
Griffin Vv. Breckenridge, 403 U.S. 88 (1971) -........... 14
Hall y. Cole, 4128 U.S. 1 (igs oe 12
Hampton v. Hanrahan, No. 77-1698 (Order) (7th
Cir., December 12, 1979), pet for reh pending... 15
Hills v. Gautreaux, 425 U.S. 284 (1976) ................ 8, 9,11
Hutto v. Finney, 487 U.S. 678 (1978) —...............-... 7
Jones V. Mayer Co., 392 U.S. 409 (1968) _........... 14
Kokoszka v. Belford, 417 U.S. 642 (1974) —....0000.... 13
Mar V. Kleppe, 520 F.2d 867 (10th Cir. 1975) ........ 16
NAACP v. Levi, 418 F. Supp. 1109 (D.D.C.
BI pcecsiteissainncensdaipin naseedissnk sei eee aaa tots eee ceaicasa aa 11
NAACP Western Region v. Brennan, 360 F. Supp.
1068: (O.DC. 18) nc a. at, 11
NRDC v. EPA, 484 F.2d 1331 (1st Cir. 1973) ........ 10
NRDC v. EPA, 168 U.S. App.D.C. 111, 512 F.2d
SE CRD . <cschcnkeciietenena aca neneeeias 10
Perry v. Golub, 400 F. Supp. 409 (N.D. Ala.
| |; ee RNIN DENA ARTE SE ON Se ee SNe EO 11
RFC v. Menihan Corp., 312 U.S. 81 (1941) ............ 16
iii
TABLE OF AUTHORITIES—Continued
Page
Shannon v. HUD, 577 F.2d 854 (3d Cir.), cert.
denied, 489 U.S. 1002 (1978) .... 8
Sierra Club v. EPA, D.C. Cir. No. 76-1087 (April
pe RN INE alee on SPP ERTS 2d Naot tetra 10
United States v. Price, 383 U.S. 787 41966) ......... 14
Women’s Equity Action League v. Califano, C.A.
No. 74-1746 (D.D.C., Dec. 29, 1977) -...0.000000... 11
Statutes & Regulations:
Administrative Procedure Act,
5 U.S.C. § 702 (1976) .. eiiabiconaieciat 3, 4, 18
Civil Rights Attorney’s Fees Awards Act of 1976,
TE: CRN Be CRE kn i passim
Civil Rights Act of 1964,
Title II, 42 U.S.C. § 2000b-1 _....... en... 8
Title VII, 42 U.S.C. § 2000e-5(k) eee. 8
Title VI, 42 U.S.C. § 2000d _...... 3, 6,11
Copyright Act,
ae Sas Oe CE oi 14
Corporation of Foreign Bondholders Act of 1933,
Po ROME aa as 17
Federal Crop Insurance Act,
RS AN S|. EARS SE SSM RAINS Re mr sree at 17
Highway Act of 1950,
Be Pies Ae OD BUD ohne cies cceesecieicovisecseanes 17
Slum Clearance and Urban Renewal Act of 1949,
a Ras RD i 17
iv
TABLE OF AUTHORITIES—Continued
Page
Small Business Act of 1953,
18 USE. CRD. GIG | ncncctiescetiereiee passim
15 USSG. 86ar) Gieee). ee 4
Title IX, Education Amendments of 1972,
y ais ie he 2,11
Trade Expansion Act of 1962,
$0 UBC SIO seks tic eee 17
Veterans Benefits Act of 1958,
SB UB. BC ED micchicec kine 17
BB US.C. BBE Ce sas cstee nas 4
28 US... 6 TE Cee tak dee 4
_ Bs Cees S| | 4
, gio FoR t 8: er 4
28 UBC. SBE CHG msi oe 8,7
GB UAC. © TOE Ce cecceinenkcat eee 6,11
r Bis FOS. 2) Seer eee ee 6,11
em 5 & § Rea re 5
18 CPR. § TROBE Ge) GRC OD. wecctteetetecane 5
Miscellaneous:
S. Rep. No. 83-604, 83d Cong., Ist Sess. (1953) ...... 16
S. Rep. No. 94-996, 94th Cong., 2d Sess. (1976) ...... 13
S. Rep. No. 94-1011, 94th Cong., 2d Sess. (1976) .... 12
122 Cong. Rec. $16252 (daily ed. Sept. 21,1976)... 9,12
[1976] U.S. Code Cong. & Ad. News 5659 ............ 14
IN THE
Supreme Court of the United States
OCTOBER TERM, 1979
No.
MARILYN W. ANDRULIS
and
ANDRULIS RESEARCH CORPORATION,
Petitioners,
Vv.
UNITED STATES et al.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
Petitioners Marilyn W. Andrulis and Andrulis Re-
search Corporation respectfully pray that a writ of cer-
tiorari issue to review the judgment of the United States
Court of Appeals for the District of Columbia in this
case.’
1 Respondents are the United States, the United States Small
Business Administration, and A. Vernon Weaver, in his official
capacity as Administrator of the United States Small Business
Administration.
2
OPINIONS BELOW
The opinion of the court of appeals (App. A, pp. 1a-
37a, infra) is reported at 609 F.2d 514. The opinion and
orders of the District Court (App. B, pp. 38a-40a, infra)
are not reported.
JURISDICTION
The judgment of the court of appeals (App. C, pp.
41a-42a, infra) was entered on September 26, 1979. A
timely petition for rehearing was denied on January 4,
1980 (App. D, p. 48a, infra). The jurisdiction of this
Court is invoked under 28 U.S.C. § 1254(1).
QUESTIONS PRESENTED
(1) Whether, under The Civil Rights Attorney’s Fees
Awards Act of 1976, 42 U.S.C. § 1988, which provides
that a court may award “a reasonable attorney’s fees as
part of the costs” to a “prevailing party” in “any action
or proceeding” involving specified civil rights statutes, a
court is barred by sovereign immunity from granting a
fee award to a party prevailing against the United States.
(2) Whether § 5(b) of the Small Business Act of 1953,
15 U.S.C. § 634(b), which provides that the United States
Small Business Administration may “sue and be sued”
in any court, waives any defense of sovereign immunity
which could prevent the assessment of attorney’s fees
against that agency under 42 U.S.C. § 1988.
STATUTES INVOLVED
The Civil Rights Attorney’s Fees Awards Act of 1976,
42 U.S.C. § 1988 (1976), provides in relevant part:
“$1988. Proceedings in vindication of civil rights
* * * | In any action or proceeding to enforce a pro-
vision of sections [1981, 1982, 1983, 1985, and 1986 of
this title], title IX of Public Law 92-318 [20 U.S.C.
3
§ 1681 et seg.], or in any civil action or proceedings,
by or on behalf of the United States of America, to
enforce, or charging a violation of, a provision of the
United States Internal Revenue Code, or title VI of
the Civil Rights Act of 1964 [42 U.S.C. § 2000d et
seq.], the court, in its discretion, may allow the pre-
vailing party, other than the United States, a rea-
sonable attorney’s fee as part of the costs.”
28 U.S.C. § 2412 (1976) provides as follows:
“Except as otherwise specifically provided by stat-
ute, a judgment for costs, as enumerated in section
1920 of this title but not including the fees and ex-
penses of attorneys may be awarded to the prevailing
party in any civil action brought by or against the
United States or any agency or official of the United
States acting in his official capacity, in any court
having jurisdiction of such action * * *.”
The Small Business Act of 1953, 15 U.S.C. § 634(b)
(1976), provides in relevant part:
“(T]he Administrator may—
(1) sue and be sued in any court of record of a
State having general jurisdiction, or in any United
States district court, and jurisdiction is conferred
upon ‘such district court to determine such contro-
versies without regard to the amount in controversy;
but no attachment, injunction, garnishment, or other
similar process, mesne or final, shall be issued against
the Administrator or his property; * * *.”
Section 702 of the Administrative Procedure Act, 5
U.S.C. § 702 (1976), provides in relevant part:
“* * * An action in a court of the United States
seeking relief other than money damages and stating
a claim that an agency or an officer or employee
thereof acted or failed to act in an official capacity
or under color of legal authority shall not be dis-
missed nor relief therein be denied on the ground that
it is against the United States or that the United
States is an indispensable party * * *.”
4
STATEMENT OF THE CASE
A. Background. This case arises from an action al-
leging, inter alia, that the United States Small Business
Administration, by summarily terminating petitioners
from participation in its Section 8(a) program, 15 U.S.C.
§ 687(a) (1976), violated 42 U.S.C. §§ 1981, 1985(c) and
2000d, by discriminating against petitioner Dr. Marilyn
W. Andrulis on grounds of race and sex. The district
court’s jurisdiction rested on 28 U.S.C. §§ 1331(a), 1348,
1361, 2201; 5 U.S.C. § 702; and 15 U.S.C. § 634(b).?
Dr. Andrulis is the president and majority stockholder
of petitioner Andrulis Research Corporation (“ARC”),
a research and development firm that Dr. Andrulis formed
in 1971 and that is involved in multi-disciplinary contract
research. Prior to 1971, Dr. Andrulis had been em-
ployed as a scientist by several companies. She began her
own business in order to overcome impediments to her
professional advancement due to discrimination on the
basis of sex. Even after beginning ARC, however, and
despite substantial research advances by that firm, Dr.
Andrulis experienced similar discrimination on the part
of federal government contracting officials. J.A. 61-62,
66-67.*
Because of this difficulty, Dr. Andrulis applied on April
22, 1977 to the Small Business Administration’s (“SBA”)
§ 8(a) program, 15 U.S.C. § 637(a) (1976). Section 8(a),
at that time, empowered SBA to arrange for small busi-
2The only relevant factual presentation explaining the back-
ground to this action was an affidavit of petitivner Marilyn W.
Andrulis accompanying a motion for a temporary restraining order,
or, in the alternative, for a preliminary injunction. The Govern-
ment never introduced evidence to rebut specifically the contentions
made therein, and it relied heavily upon this affidavit in its state-
ment of the case to the court of appeals. Gov’t Br., Andrulis v.
United States, No. 78-2039 (D.C. Cir.) at 4-6.
3“J.A.” refers to the Joint Appendix filed below in the court of
appeals.
5
nesses to acquire federal government contracts without
competitive bidding.* By regulation, admission to the
program was limited to firms “controlled by * * * per-
sons who have been deprived of the opportunity to de-
velop and maintain a competitive position in the economy
because of social or economic disadvantage.” 13 C.F.R.
§ 124.8(1) (c) (1977). SBA also provided that “social
or economic disadvantage” could be demonstrated by a
showing of, inter alia, “[p]revious failures to compete
effectively for government contracts * * *.” J.A. 72. The
SBA approved ARC for the program, noting specifically
that Dr. Andrulis had “experienced an inordinate degree
of resistance from various government programs and
procurement activities,” and that she was “socially and/or
economically disadvantaged.” J.A. 74.
Under the auspices of the § 8(a) program, ARC en-
tered serious negotiations with the Department of the
Navy for the testing of a new anti-submarine target
detection system which Dr. Andrulis had devised. J.A.
76. When these negotiations were almost completed in
September, 1977, however, Dr. Andrulis heard rumors
that she had been terminated from the program. She
had received no prior indication that ARC’s program
participation was in jeopardy, but, after making in-
quiries with SBA officials, she was, in fact, informed
that ARC was no longer a § 8(a) participant. This dis-
missal and the consequent loss of the pending govern-
ment contract brought ARC to the brink of bankruptcy.
J.A. 69, 77-79, 88-89. Dr. Andrulis then persuaded SBA
to grant her a hearing, but her reconsideration request
was denied without explanation. SBA refused to issue to
Dr. Andrulis its findings supporting the denial. J.A. 86.
When, through Freedom of Information Act requests and
* Congress amended the statute authorizing this program in 1978.
P.L. 95-507, 92 Stat. 1757. The amendments, by and large, do not
dramatically alter the scope of the §8(a) program, but do incor-
porate into legislation various formal and informal SBA policies
relating to its administration.
6
Congressional assistance, Dr. Andrulis later obtained
these findings, she learned that ARC’s termination was
based on her race and sex. J.A. 86.°
On November 11, 1977, Dr. Andrulis (and ARC) filed
a complaint charging SBA with discrimination in the
operation of its § 8(a) program and alleging violations,
inter alia, of 42 U.S.C. §§ 1981 and 1985(c) as well as
of Title VI of the Civil Rights Act of 1964 (42 U.S.C.
§ 2000d, et seg.). Petitioners sought damages and declara-
tory and injunctive relief, and requested attorney’s fees
pursuant to 42 U.S.C. § 1988. The District Court re-
jected SBA’s claim that its actions were protected by
sovereign immunity and entered a temporary restraining
order reinstating ARC in the § 8(a) program. Tr. Nov.
11, 1977. The government later stipulated to a pre-
liminary injunction. J.A. 101. On March 8, 1978, two
days before the SBA was required to answer discovery
requests aimed at proving that its actions were motivated
by race and sex discrimination, it entered into a settle-
ment agreement permanently reinstating ARC in the
program and conceding that the initial §8(a) entry
decision pertaining to ARC was correct. J.A. 106-111.
Petitioners subsequently received the Navy contract earlier
negotiated.
B. The Opinion Below. On June 12, 1978, the district
court, finding that petitioners had prevailed in the action,
granted their request for attorney’s fees under § 1988.
5 SBA’s discriminatory intent is evidenced by an SBA memo-
randum stating as the first reason for her disqualification her non-
minority status. J.A. 80. This explanation was repeated in the
findings adopted after her appeals hearing and in other SBA docu-
ments. J.A. 86. Informally, she was told by SBA officials and others
that ARC’s admission to the program had set an unintended and
unwanted precedent which would have, if unchecked, allowed addi-
tional non-minority women into the § 8(a) program. J.A. 81, 85-86.
6“Tr.” refers to the November 11, 1977 transcript of the hearing
on the motion for a temporary restraining order in the district
court.
tion” alleging the violation of certain civil rights statutes,
including §§$ 1981, 1985, and Title VI. SBA appealed
the award, claiming that it was barred by sovereign im-
munity and by the fact that petitioners could not be
deemed prevailing parties, because they had not proven
discrimination. Shortly before oral argument in the court
of appeals, SBA, in a letter to the clerk of the court,
abandoned its argument that petitioners had not pre-
vailed in this action. Justice Department Letter to George
L. Fisher (April 11, 1979).
In a 2-1 decision, the court of appeals reversed the dis-
trict court’s order." The majority rested its decision
heavily upon 28 U.S.C. § 2412, which provides that, al-
though “costs” may be assessed against the United States,
attorney’s fees shall not be so awarded “[e]xcept as
otherwise specifically provided by statute * * *.” It
found that, even though § 1988 authorizes payment of
attorney’s fees “as part of the costs” in “any” action
under the civil rights laws referenced therein, § 1988
does not meet the terms of § 2412 because it does not
expressly mention the United States by name.
In so finding, the majority acknowledged (App. 7a, 9a)
that, in rejecting the argument that § 1988 did not con-
tain the requisite “express statutory language” waiving
Eleventh Amendment immunity for the States, this Court
held in Hutto v. Finney, 487 U.S. 678, 694 (1978), that
the term “any action” within § 1988 “could not be
broader.” The majority nevertheless rejected petition-
ers’ contention that § 1988 was, a fortiori, broad enough
to include actions against the United States. It distin-
7On appeal, petitioner’s case was consolidated for purposes of
argument with NAACP v. Civiletti, an action raising the identical
§ 1988 issue. Both cases were disposed of in the same opinion.
guished Hutto on the ground that under § 1988 fees are
to be paid as “costs,” and that, while federal courts had
awarded “costs” against States for about fifty years
prior to § 1988’s passage, Fairmont Creamery v. Minne-
sota, 275 U.S. 70 (1927), costs had only been regularly
assessed against the United States since 1966. Hence,
the majority assumed that, when Congress passed § 1988
in 1976, it clearly had the States in mind, but it never
envisioned that $ 1988 “costs” would apply to the federal
government. App. 9a-10a.*®
While conceding that the legislative history of § 1988
did provide a basis for concluding that the United States
was covered by the statute,® the majority found no “un-
equivocal indication” that Congress intended that result.
App. 10a. It thus concluded that, under these circum-
stances, the only attorney’s fee provision which could be
deemed a waiver of sovereign immunity is one which
mentioned the United States by name. App. 9a.’°
The majority, even though it recognized that the Small
Business Act’s “sue and be sued” clause, 15 U.S.C. § 634
8 The majority also relied upon a two-page per curiam opinion by
the Third Circuit concluding that § 1988 did not cover the United
States. Shannon v. HUD, 577 F.2d 854 (3d Cir.), cert. denied, 439
U.S. 1002 (1978). As the dissent noted (App. 32a, n.22), Shannon
was decided before this Court’s decision in Hutto. Shannon also
did not address the “sue and be sued” argument presented in this
litigation. See pp. 15-17, infra.
“t
® The court of appeals acknowledged, for example, that the rank-
ing minority member of the House Judiciary Committee, which
reported out § 1988, stated on the floor of the House that the United
States would be a fee-paying party under § 1988, App. 10a, n.11,
and that the § 1988 House Report specifically referred to Hills v.
Gautreaux, 425 U.S. 284 (1976), a Title VI action against a fed-
eral cabinet officer, as an example of the kind of case to which § 1988
would apply. App. 1la-12a.
1© The majority in this regard relied upon Titles II and VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000b-1,
2000e-5(k), specifically delineating the United States as a fee-paying
party.
(b), constitutes an “express statutory consent” to suit,
also rejected petitioner’s claims that that clause, inter
alia, would permit an award of fees to a party prevail-
ing against the SBA under § 1988 even if § 1988 itself
does not waive sovereign immunity. App. 12a, n.12.
In his dissent, Chief Judge Wright found that this
Court’s determination in Hutto that the term “any” ac-
tion within § 1988 “could not be any broader,” coupled
with the many express references in the legislative his-
tory to the federal government’s liability under § 1988,"
made it clear that the United States was subject to
§ 1988. App. 19a-32a."* The dissent also demonstrated
11 Besides relying upon the statements of the ranking House mi-
nority member (App. 29a-32a) and the reference in the House Re-
port to Hills v. Gautreaux (App. 23a-24a), see n.10, supra, Chief
Judge Wright noted that the principal draftsmen of the legislation,
Congressman Drinan and the Justice Department representative
testifying on the bill, both expressly recognized that the United
States would be covered by the legislation, as did Senator Allen,
when he tried to amend the legislation so as to reduce the liability of
the United States. App. 24a-26a, 28a & n.16.
Chief Judge Wright also highlighted several passages in the com-
mittee reports, as well as the legislative debates, which made it
clear that § 1988 was intended to be identical to existing civil
rights attorney’s fee provisions, all of which provided for fees
against the United States. App. 22a-24a, 27a. See n.11, supra.
Finally, Judge Wright disposed of each of the several “inferential”
legislative history arguments advanced by the government in their
brief below, only one of which was relied upon by the majority.
App. 27a-32a and nn. 20-21.
11a The dissent (App. 19a-20a, n.10) also addressed the majority’s
reliance upon the IRS provision within § 1988, which was added to
the legislation on the Senate floor. The majority argued that,
since that provision states that fees may be awarded against the
United States in IRS enforcement actions, it shows that Congress
knew how to cover the United States in a fee context when it wanted
to. Judge Wright correctly pointed out, however, that the IRS and
civil rights aspects of § 1988 were motivated by different Con-
gressional interests. In the civil rights context the words “any
action” were used because “Congress firmly intend[ed] that all our
civil rights laws be vigorously enforced,” 122 Cong. Rec. S16252
(daily ed. Sept. 21, 1976) (remarks of Sen. Kennedy). For pur-
10
that Congress frequently drafts statutes which make the
federal government liable for fees without express men-
tion of the United States. App. 19a-22a.'? Because the
dissent found that federal sovereign immunity was waived
by $1988, it saw no reason to address, inter alia, the
“sue and be sued” argument advanced by petitioners.
App. 14a, n.2.
REASONS FOR GRANTING THE WRIT
A. Section 1988. If left unaltered, the court of ap-
peals’ ruling that the United States need not pay fees
under § 1988 will doubtless have a substantial impact
upon the private enforcement of several important civil
rights statutes against the federal government.”* As both
poses of the tax provision, Congress, as evidenced by the remarks
of the draftsman of that proposal, Senator Allen, only wanted fees
paid when taxpayers were sued by the government, not when tax-
payers sued the government. Thus, not all IRS actions were cov-
ered, but only enforcement actions. The dissent therefore concluded
that the specific reference to the United States was required to show
the limited reach of the IRS provision and was merely intended to
make clear that § 1988 does not apply to “any tax action.” The dis-
sent further concluded that no negative inference could be drawn
from this provision.
12 Chief Judge Wright noted, for example, that for the purposes
of the Clean Air Act, 42 U.S.C. § 7604, the term “any party” with-
out more has been deemed sufficiently explicit to apply an attorney’s
fee provision to the United States. NRDC v. EPA, 168 U.S.App.D.C.
111, 512 F.2d 1351, 1353-54 (1975) (dictum) ; NRDC v. EPA, 484
F.2d 1331, 1336, n.5 (1st Cir. 1973). See also Sierra Club v. EPA,
D.C. Cir. No. 76-1037 (April 27, 1979) (Federal government did
not contest award when statute merely provided “in any judicial
proceeding”). App. 20a-2la. Chief Judge Wright also pointed out
that, when Congress passed the 1978 Rehabilitation Act Amend-
ments, it included an attorney’s fee provision, § 505(b), which was
acknowledged by the draftsmen to be modeled after § 1988. The
Committee reports accompanying § 505(b) and its draftsmen both
made clear that § 505(b) covered the United States. App. 21la-22a.
13 The statutes covered by § 1988 are 42 U.S.C. §§ 1981, 1983,
1985, 1986, Title IX of the Education Amendments of 1972 (20
U.S.C. § 1681), and Title VI of the Civil Rights Act of 1964 (42
11
the majority (App. 13a, n.18) and the dissent (App.
16a-19a). recognized, Congress enacted § 1988 because it
firmly believed that, without provision for the payment
of attorney’s fees, the civil rights statutes referenced
therein would not be properly enforced. Thus, the Senate
Report stated that, since citizens suing under the civil
rights laws often “have little or no money with which
U.S.C. § 2000d). Four of these provisions, §§ 1981, 1985, and Titles
VI and XI, have applicability to the United States.
Section 1981 provides that “[a]ll persons * * * shall have the same
right in every State and Territory to make and enforce contracts
* * * as is enjoyed by white citizens.” It is applicable to discrim-
ination against federal officials. Bowers v. Campbell, 505 F.2d 1155
(9th Cir. 197 '; Baker v. F&F Investment Co., 489 F.2d 829 (7th
Cir. 1973) ; NAACP v. Levi, 418 F. Supp. 1109, 1117 (D.D.C. 1976).
Section 1985(c) provides a remedy against “two or more persons”
who conspire to deprive “any person or class of persons” of “the
equal protection of the laws, or of equal privileges and immunities
under the laws,” and has been applied to federal officials. See, e.g.,
ret ro Lodge, Inc. v. United States, 515 F.2d 926, 931 (10th
ir. 1975).
Title VI provides:
“No person * * * ghall, on the ground of race, color, or
national origin, be excluded from participation in, be denied
the benefits of, or be subject to discrimination under any pro-
gram or activity receiving Federal financial assistance.” 42
U.S.C. § 2000d.
Title IX provides:
“No person in the United States shall, on the basis of sex,
be excluded from participation in, be denied the benefits of,
or be subjected to discrimination under any education pro-
gram or activity receiving Federal financial assistance.” 20
U.S.C. § 1681.
For cases pertaining to the Federal government’s obligation under
Titles VI and IX, see, e.g., Hills v. Gautreaux, 425 U.S. 284 (1976);
Adams Vv. Richardson, 156 U.S.App.D.C. 267, 480 F.2d 1159 (1973)
(en banc); Gautreaux v. Romney, 448 F.2d 731 (7th Cir. 1971);
Women’s Equity Action League v. Califano, C.A. No. 74-1746
(D.D.C., December 28, 1977) (consent decree); NAACP Western
Region Vv. Brennan, 360 F.Supp. 1006 (D.D.C. 1973) ; Perry v. Golub,
400 F.Supp. 409 (N.D. Ala. 1975).
12
to hire a lawyer,” it is crucial, if they
“are to be able to assert their civil rights, and if
those who violate the Nation’s fundamental laws are
not to proceed with impunity, [that plaintiffs] have
the opportunity to recover what it costs them to vin-
dicate these rights in court.” S. Rep. No. 94-1011,
94th Cong., 2d Sess. 2 (1976).
The Report then boldly stated, in the words of Mr. Jus-
tice Tom Clark: “Not to award counsel fees in cases
such as this would be tantamount to repealing the Act
itself by frustrating its basic purpose. * * * Without
counsel fees the grant of Federal jurisdiction is but an
empty gesture * * * Hall v. Cole, 412 U.S. 1 (1973),
quoting 462 F.2d 777, 780-81 (2d Cir. 1972).” Id. at
3 (emphasis added). Even the majority, also relying
upon the above-quoted passage, was forced to conclude:
“Given the importance of attorney’s fees in ensuring en-
forcement of our civil rights laws, a strong policy argu-
ment can be made that [§ 1988] should permit the re-
covery of attorney’s fees against the federal government.”
App. 18a.
Neither the government nor the majority disputes the
fact that when Congress enacted § 1988, it “firmly in-
tend[ed] that all our civil rights laws be vigorously en-
forced.” 122 Cong. Rec. S 16252 (daily ed. Sept. 21,
1976) (Remarks of Sen. Kennedy). They would also
concede that, by using the phrase “any action,” Congress
intended § 1988 to cover civil rights actions against pri-
vate parties and State and local governments. Yet, some-
how the government and the majority conclude that,
when it came to enforcing the § 1988 civil rights statutes
against the federal government, Congress had a com-
pletely different intent. Despite its use of the broad and
all encompassing term “any action,” the government and
majority argue that Congress meant to carve out a
special exception for private enforcement of these civil
rights actions against the United States—an exception
13
which would make these statutes as applied to the federal
government the very “empty gesture” Congress feared
and which would signal to federal agencies and officials
that in this area of the law they need not fear “to pro-
ceed with impunity.”
If Congress had intended this dramatic result—which
in its view was tantamount to the nullification of im-
portant civil rights statutes as they apply to the federal
government—it surely would have made its reasoning
clear. Yet, neither the government nor the court of ap-
peals has ever cited a shred of direct evidence suggest-
ing that Congress intended to except the federal govern-
ment, as opposed to all other civil rights defendants, from
its obligations under anti-discrimination statutes. Instead
of citing direct evidence, both the government and the
majority reach their result principally by paying great
homage to highly technical and abstract applications of
the doctrine of sovereign immunity, which were in great
disfavor in Congress at the time of § 1988's passage.™
14 Indeed, the removal of fee incentives for private civil rights
enforcement is especially critical in the federal context, because the
Justice Department does not prosecute, but only defends, civil
rights actions against itself and its fellow agencies. As the dissent
correctly noted: “Unlike the cases involving private or state de-
fendants, the complainants [suing the United States] are not merely
‘private attorneys general’; they are the only attorneys general.
* * *” App. 17a-18a. (Emphasis added.) The facts of this case
themselves indicate that strict enforcement is necessary.
16 An amendment to the Administrative Procedure Act, enacted
contemporaneously with § 1988, greatly limited the use of the defense
of sovereign immunity by the United States. 5 U.S.C. § 702. The
House and Senate Reports accompanying the APA amendment make
clear the Congressional distaste for the federal government’s tradi-
tional reliance on that doctrine. See, e.g., S. Rep. No. 94-996, 94th
Cong., 2d Sess. (1976) at 3-9. Indeed, it is significant, for purposes
of construing § 1988, that § 702 and § 1988 were approved by Con-
gress on the same day, October 1, 1976, and were signed by the
President within two days of each other. It would be passing
strange if Congress, without expressly so providing, intended to
exclude the United States from § 1988, on grounds of sovereign
immunity, at the same time it was attempting to severely narrow
that defense for purposes of the APA. See Kokoszka v. Belford, 417
U.S. 642, 650 (1974).
14
Neither the government nor the majority, however, pays
any deference to the liberal construction federal courts
have consistently given the civil rights statutes in ques-
tion—statutes which this Court has often said must be
given “a sweep as broad as [their] language.” See, e.g.,
Griffin v. Breckenridge, 403 U.S. 88, 97 (1971); Jones
v. Mayer Co., 392 U.S. 409, 487 (1968) ; United States
v. Price, 383 U.S. 787, 801 (1966).
If the term “ ‘any’ action” “could not be broader,”
Hutto, supra, 437 U.S. at 694, and if § 1988 must be
“given a sweep as broad as its language,” there can be
no room for doubt that Congress intended that the United
States, just like any other non-prevailing defendant in a
civil rights action, pay the plaintiffs “reasonable attor-
ney’s fees as part of the costs.” **
16 The dissent below also more than adequately demonstrated, see
n.12, supra, that there are several attorney’s fees statutes which have
been found to apply to the federal government without mentioning
the United States by name. The majority sought to rebut this point
by arguing that it was otherwise clear from these statutes that the
United States would sometimes be a defendant in the actions for
which fees would be awarded. App. 5a-6a. The majority failed to
acknowledge, however, that it is widely established that the United
States may be a defendant under four of the six statutes referenced
within § 1988. See n.13, supra. Indeed, the House Report listed
Hills v. Gautreaux, supra, a Title VI action against a Federal of-
ficial, as the kind of case in which fees would be awarded against a
government entity. See n.10, supra.
Moveover, § 505 of the Copyright Act, 17 U.S.C. § 505 (1976), is
also relevant here. That provision governs the award of attorney’s
fees, stating that “[t]he court in its discretion may allow the re-
covery of full costs by or against any party other than the United
States or an officer thereof. The court may also award a reasonable
attorney’s fee to the prevailing party as part of the costs.” (Em-
phasis supplied). As the legislative history of this statute under-
scores, the significance of this language is that it “makes clear that
neither costs nor attorney’s fees can be awarded to or against ‘the
United States or any officer thereof.’” [1976] U.S. Code Cong. &
Ad. News 5659, 5779. (Emphasis supplied). Were the majority’s
argument correct, such language would be unnecessary because the
reference to “any party” would not by itself even raise the possi-
15
We respectfully suggest that the serious adverse im-
pact on civil rights enforcement of the court of appeals’
decision, as well as the errors in the majority’s reasoning
pointed out by the dissent, see pp. 9-10 and nn.11-12,
supra," make the opinion below fully worthy of this
Court’s review."*
B. “Sue and Be Sued” Clause. Petitioners also con-
tended below that §5(b) of the Small Business Act, 15
U.S.C. §634(b), should have provided them with an
independent grounds for recovering fees under § 1988
bility of recovering fees from the United States; moreover, Con-
gress’ evident concern with possible liability on the part of the
federal government would make no sense.
17 We wish only to comment briefly on the majority’s reasoning
that § 1988 lifts the bar for State, but not federal, sovereign im-
munity, because, at the time of the passage of § 1988, “costs” had
only been awarded against the Federal government for a decade
while they had been awarded against the States for almost a half
century. See pp. 7-8, supra. The majority’s premise seems to have
been that, since the assessment of costs was so “recent,” Congress
could not have understood when it decided to award “attorney’s fees
as part of the costs” under § 1988 that it would be permitting
awards against the United States. This logic violates this Court’s
recent admonition that “[i]t is always appropriate to assume that
our elected representatives, like other citizens, know the law; ... .”
Cannon v. Univ. of Chicago, 441 U.S. 677, 696-97 (1979). It also
disregards the express recognition by the draftsman of the legisla-
tion, Congressman Drinan, that § 1988 was compatible with § 2412,
the statute which provides that “costs” may be awarded against
the United States. See n.11, supra. Indeed, by making attorney’s
fees a part of the costs, Congress was expressly crafting § 1988 so
as to satisfy the waiver of sovereign immunity within § 2412.
18 The Seventh Circuit, on December 12, 1979, entered an order,
as yet unreported, which is as of now in conflict with the decisfon
reached below. Hampton v. Hanrahan, No. 77-1698. The Seventh
Circuit, finding that it could not in the circumstances of that case
assess fees under § 1988, against, inter alia, certain federal defend-
ants sued in an unofficial capacity, ordered, inter alia, that the
United States pay a part of the fee award. Order at 13 and n.32.
Following this order, the United States was permitted to intervene
in the action and petition for rehearing. That petition, as well as
others, is sub judice. Petitioners will inform this Court of the
status of that pr.weeding when it has been finally considered.
16
even if the latter provision does not in itself constitute
a waiver of Federal sovereign immunity. Section 5(b),
upon which petitioners sued, permits the SBA “to sue
and be sued .. . in any United States district court... .”
This provision as applied to SBA has been declared an
“express statutory consent” to suit. Mar v. Kleppe, 520
F.2d 867, 870 (10th Cir. 1975). Indeed, this Court held
in RFC v. Menihan Corp., 312 U.S. 81, 85-86 (1941),
that a “sue and be sued” clause places a federal agency
“upon an equal footing with private parties as to the
usual incidents of suits in relation to the payment of
costs and allowances.” It ruled in that case that the
Reconstruction Finance Corporation (SBA’s predecessor
agency),'® just as any private party facing an adverse
judgment, had to pay costs pursuant to Rule 54(d),
F.R.Civ.P., which, at that time, did not permit the award
of costs against the United States unless provided by
statute. Under this holding, SBA’s “sue and be sued”
clause should subject it, just like any private party, to
the “usual incidents” of a civil rights action, payment
of “attorney’s fees as part of the costs” under § 1988.
The court of appeals rejected this contention by hold-
ing that a “sue and be used” clause only waives sovereign
immunity for relief expressly mentioned in that clause.
App. 12a, n.12. Yet, the case upon which the majority
relied for this proposition establishes just the opposite,
for it states that relief can only escape the waiver of
sovereign immunity if the clause so specifies. FHA v.
Burr, 309 U.S. 242, 244 (1940) .”
19S. Rep. No. 83-604, 83rd Cong., Ist Sess. (1953) at 4.
°° The majority also relied upon Cassata v. Federal Savings and
Loan Ins. Corp., 445 F.2d 122 (7th Cir. 1971), as a case where a
“sue or be sued” agency was denied attorney’s fees on the basis of
§ 2412. Yet, the “sue and be sued” issue was never mentioned in
that opinion, and we can only conclude that it was never briefed to
the court. Indeed, the plaintiffs in Cassatta had no independent
statutory basis, such as § 1988, for claiming attorney’s fees .
17
The court of appeals asserted, finally, that Congress
could not have intended § 5(b) to make the federal gov-
ernment liable for attorney’s fees because the recovery
of such fees was not the type of relief granted by federal
courts when §$5(b) was enacted. Yet, we have found
no other case which limits the waiver associated with a
“sue and be sued” clause to the recovery available at the
time of the clause’s passage. It should be emphasized
that there are literally dozens of federal “sue and be
sued” clauses, many of which are decades old.” The
majority’s principle, if broadly applied, would wreak
havoc in this area of the law. It would impose different
obligations on each agency to which a “sue and be sued”
clause applied, based on the sheer chance of when that
agency’s governing statute passed. Clearly, this is a
question of wide concern to those who deal with federal
entities operating under “sue and be sued” clauses, and
therefore we respectfully suggest that this issue as well
deserves the attention of this Court.
21 See, e.g., the Corporation of Foreign Bondholders Act of 1933,
15 U.S.C. § 77dd; the Federal Crop Insurance Act, 7 U.S.C. § 1506
(d) (enacted 1938); the Slum Clearance and Urban Renewal Act
of 1949, 42 U.S.C. § 1456(c) (1) ; the Highway Act of 1950, 12 U.S.C.
§ 1749a(c) (3); the Veterans Benefits Act of 1958, 38 U.S.C. § 1820
(a)(1); the Trade Expansion Act of 1962, 19 U.S.C. § 1920.
18
CONCLUSION
For the foregoing reasons, this petition for a writ of
certiorari to the United States Court of Appeals for the
District of Columbia Circuit should be granted and the
judgment of that court reviewed on the merits.
Respectfully submitted,
I. MICHAEL GREENBERGER
1800 Massachusetts
Avenue, N.W.
Washington, D.C. 20036
(202) 828-2000
Of Counsel: Counsel for Petitioners *
SHEA & GARDNER
1800 Massachusetts
Avenue, N.W.
Washington, D.C. 20005
Dated: April 2, 1980
* Petitioners wish to acknowledge the able assistance provided by
Daniela R. Winkler, a third-year student at the Harvard Law School,
in the preparation of this petition.
APPENDICES
la
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 78-1639
THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT
OF COLORED PEOPLE, et al.
Vv.
BENJAMIN R. CIVILETTI, IN HIS OFFICIAL CAPACITY AS
THE ATTORNEY GENERAL OF THE UNITED STATES, et al.,
Appellants
No. 78-2039
MARILYN W. ANDRULIS, et al.
Vv.
UNITED STATES OF AMERICA, et al.,
Appellants
Decided September 26, 1979
Before WRIGHT, Chief Judge, WILKEY, Circuit Judge,
and LARSON, Senior District Judge.*
Opinion for the court filed by Senior District Judge
LARSON.
Dissenting opinion filed by Chief Judge WRIGHT.
*The Honorable Earl R. Larson, United States Senior District
Judge for the District of Minnesota, sitting by designation pur-
suant to 28 U.S.C. § 292(d).
2a
LARSON, Senior District Judge: The above-captioned
cases are consolidated on appeal because both raise the
same central issue—that is, whether the Civil Rights At-
torney’s Fees Awards Act of 1976, 42 U.S.C. § 1988,
permits an award of fees against the United States. After
careful deliberation, we conclude that the Awards Act
does not operate as a waiver of sovereign immunity in
this context. Therefore, as to the award of attorney’s
fees by the courts below, we reverse.
In Andrulis v. United States, plaintiffs Dr. Marilyn W.
Andrulis and Andrulis Research Corporation (ARC)
brought an action for damages, declaratory and injunctive
relief in which they alleged, inter alia, that ARC had
been unlawfully terminated from a program: administered
by the Small Business Administration (SBA) pursuant
to § 8(a) of the Small Business Act, 15 U.S.C. § 637(a).
Section 8(a) empowers the SBA to enter into contracts
with other federal departments and agencies and to ar-
range, without competitive bidding, for the performance
of these contracts by small business concerns. In their
complaint, plaintiffs charged that ARC had been ex-
cluded from the § 8(a) program as a result of race and
sex discrimination in violation of 42 U.S.C. §§ 1981,
1985(a) and 2000d.
On November 11, 1977, the district court? issued a
temporary restraining order in the Andrulis case. There-
after the SBA agreed to reinstate ARC as a participant
in the §8(a) program and the parties entered into a
consent decree to that effect. Relying upon 42 U.S.C.
§ 1988, plaintiffs next applied for and were granted
$18,739.00 in attorney’s fees and $1,135.03 in costs and
disbursements. As to the award of attorney’s fees, the
government appeals.
1 The United States District Court for the District of Columbia,
the Honorable Gerhard A. Gesell presiding.
8a
NAACP v. Civilettti,"*! the second case before this
Court, grew out of the fatal shooting in 1971 of Carnell
Russ, a black male, by a white Arkansas law enforcement
officer in the course of an arrest for a traffic violation.
The officer was subsequently acquitted of manslaughter
charges by a state court jury. After reviewing the tran-
script of the trial proceedings, as well as FBI reports, the
Department of Justice decided not to prosecute anyone
under the federal criminal civil rights statute, 18 U.S.C.
§ 242.
Following the decision not to prosecute, the NAACP
and the Russ family brought suit under the Civil Rights
Act, 42 U.S.C. §$ 1981 and 1985, challenging the ade-
quacy of the federal investigation and the decision not to
prosecute. In essence, plaintiffs claimed that the Justice
Department had deferred unlawfully to the state proceed-
ings pursuant to a policy established in 1959 by then
Attorney General William Rogers of not following a state
prosecution with a federal trial for the same act absent
compelling reasons. Plaintiffs charged that this policy
was unreasonable and racially discriminatory as applied
in the Russ case.
In February 1977, while this suit was pending in the
district court, Attorney General Griffin Bel] issued a
memorandum dealing with prosecutions of civil rights
violations by the Justice Department. The memorandum
indicated that the Department would henceforth evaluate
“each and every allegation of a violation of the civil
rights laws . . . on its own merits” irrespective of related
state enforcement action. Agreeing that the Bell memo-
randum effectively mooted plaintiffs’ claim, the parties to
this action moved jointly to dismiss. The district court?
granted the motion and plaintiffs subsequently sought and
[48 As amended by order of Sept. 26, 1979, App. 36a-37a, infra.]
2 The United States District Court for the District of Columbia,
the Honorable Barrington Parker presiding.
4a
were awarded $26,300.00 in attorney’s fees and $612.25
in costs under 42 U.S.C. § 1988. The decision to award
attorney’s fees is the subject of this appeal.
To recover attorney’s fees against the United States,
a prevailing party must first surmount a formidable
barrier, the doctrine of sovereign immunity. Under well
established precedent, waivers of federal sovereign im-
munity “cannot be implied but must be unequivocally ex-
pressed.” United States v. King, 395 U.S. 1, 4 (1969).
With respect to awards of attorney’s fees, the policy
against implied waivers of federal sovereign immunity
is embodied in 28 U.S.C. § 2412* which has been con-
sistently construed as immunizing the United States
against attorney’s fees awards absent clear or express
statutory authority to the contrary. Alyeska Pipeline
Service Co. v. Wilderness Society, 421 U.S. 240, 267-68
(1975) ; Fitzgerald v. United States Civil Service Com-
mission, 554 F.2d 1186, 1189 (D.C. Cir. 1977) ; Natural
Resources Defense Council, Inc. v. EPA, 512 F.2d 1351,
1353 (D.C. Cir. 1975). Such clear statutory authority
328 U.S.C. § 2412 as presently drafted provides:
“Except as otherwise specifically provided by statute, a judg-
ment for costs, as enumerated in section 1920 of this title but
not including the fees and expenses of attorneys may be
awarded to the prevailing party in any civil action brought by
or against the United States or any agency or official of the
United States acting in his official capacity, in any court having
jurisdiction of such action... .”.
Prior to 1966, neither attorney’s fees nor costs were recoverable
against the United States unless such liability was expressly pro-
vided for by act of Congress. In 1966, 28 U.S.C. § 2412 was amended
to permit the recovery of costs unless specifically forbidden by
statute. Congress, however, explicitly excluded “the fees and ex-
penses of attorneys” from the costs recoverable under § 2412 as a
matter of course. Thus, with respect to attorney’s fees, § 2412 re-
mains an explicit assertion of sovereign immunity. See Alyeska
Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 267-68
(1975) (“But § 2412 on its face, and in light of its legislative
history, generally bars such awards, which, if allowable at all, must
be expressly provided for by statute. .. .”.).
5a
may be found in language referring specifically to the
liability of the United States. Thus, for example, Title II
of the Civil Rights Act of 1964 provides:
“In any action commenced pursuant to this sub-
chapter, the court, in its discretion, may allow the
prevailing party, other than the United States, a
reasonable attorney’s fee as part of the costs, and
the United States shall be liable for costs the same
as a private person.” 42 U.S.C. § 2000a-3(b) (em-
phasis added) .*
Alternatively, statutory authorization may be inferred
by necessary implication from the statutory context in
which a fee provision arises. This rationale was central
to the First Circuit’s conclusion in Natural Resources
Defense Council, Inc. v. EPA, 484 F.2d 1331 (1st Cir.
1973), that an award of attorney’s fees against the fed-
eral government was authorized under § 304(d) of the
Clean Air Act, 42 U.S.C. § 7604. In that case, the gov-
ernment contended, inter alia, that a prevailing party in
a citizen suit brought against the United States under
§ 304 of the Act could not obtain attorney’s fees from the
federal government because the attorney’s fee provision
of § 304(d),° while providing for recovery by “any party,”
did not specifically mention the United States by name.
The First Circuit responded dy noting that the gov-
4 Other civil rights statutes contain similar language. See, e.g.,
42 U.S.C. §§ 2000b-1, 2000e-5(k). In addition, a number of non-
civil rights statutes explicitly provide for fee awards against the
United States. See e.g., 5 U.S.C. § 552(g)(2)(B) (Freedom of In-
formation Act); 15 U.S.C. § 2059(e) (Consumer Product Safety
Act).
5 Section 304(d) provided:
“The Court, in issuing any final order in any action brought
pursuant to subsection (a) of this section, may award costs
of litigation (including reasonable attorney and expert wit-
ness fees) to any party, whenever the court determines such
award is appropriate. .. .”
6a
ernment’s “reading of the statute is in sharp conflict with
its plain words, which authorize the award against ‘any
party’ and which, in § 304(a), specifically authorize suits
with the United States as a party.” 484 F.2d at 1336,
n.5. Because § 304(a) of the Clean Air Act specifically
permitted suits against the Administrator of the EPA,
the necessary implication was that Congress had intended
the fee provision of § 304(d), which made express ref-
erence to § 304(a), to allow recovery against the United
States.
In the context of the above discussion, the question
before this Court is whether the Civil Rights Attorney’s
Fees Awards Act of 1976 expressly authorizes the recov-
ery of fees against the United States so as to overcome
the barrier of sovereign immunity contained in 28 U.S.C.
§ 2412. As amended, 42 U.S.C. § 1988 provides in rele-
vant part:
“Tn any action or proceeding to enforce a provision of
sections [1981, 1985 or 2000d of Title 42] the court,
in its discretion, may allow the prevailing party,
other than the United States, a reasonable attorney’s
fee as part of the costs.” °
Appellees submit that the Awards Act by its plain lan-
guage clearly and unequivocally permits awards of at-
torney’s fees against the United States by authorizing a
fee award in “any action or proceeding” to enforce, inter
6 In its entirety, 42 U.S.C. § 1988 reads as follows:
“In any action or proceeding to enforce a provision of sections
1977, 1978, 1979, 1980, and 1981 of the Revised Statutes [42
U.S.C. §§ 1981, 1983, 1985, 1986], title IX of [the Education
Amendments of 1972], or in any civil action or proceeding, by
or on behalf of the United States of America to enforce, or
charging a violation of, a provision of the United States Inter-
nal Revenue Code, or title VI of the Civil Rights Act of 1964
[42 U.S.C. § 2000d], the court, in its discretion, may allow the
prevailing party, other than the United States, a reasonable
attorney’s fee as part of the costs.”
Ta
alia, the Reconstruction Era Civil Rights statutes (42
U.S.C. §§ 1981-1983, 1985, 1986) and Title VI of the Civil
Rights Act of 1964, 42 U.S.C. § 2000d. Appellees find
support for their position in Hutto v. Finney, 98 S.Ct.
2565 (1978), in which the Supreme Court held the lan-
guage of the Awards Act sufficient to overcome the im-
munity granted the states under the Eleventh Amend-
ment to the United States Constitution. In so holding,
the Court stated:
“The Act itself could not be broader. It applies to
‘any’ action brought to enforce certain civil rights
laws. It contains no hint of an exception for State
defending injunction actions; ... .” 98 S.Ct. at 2575.
Similarly, appellees contend, the Awards Act contains no
hint of an exception for the federal government.
In their reading of the Awards Act, we think appellees
assign too much weight to Congress’ use of the phrase
“any action.” That phrase has repeatedly appeared in
attorney’s fees provisions, yet when in the past Congress
has sought to override 28 U.S.C. § 2412 it has apparently
considered it necessary to add a phrase explicitly estab-
lishing the liability of the United States.’ Generally, in
construing a statute, we “are obliged to give effect, if
possible, to every word Congress used.” Reiter v. Sono-
tone Corp., No. 78-690 (S.Ct. June 11, 1979), slip op.
at 5, citing United States v. Menasche, 348 U.S. 528,
538-39 (1955). Unless we are to regard the prior specific
references to the United States inserted in fee provision
statutes as mere surplusage, we must assume that Con-
gress considered the “any action” language insufficient
standing alone to waive federal sovereign immunity.
Considering that the Awards Act was enacted largely
in response to the Supreme Court’s ruling in Alyeska
7 See, e.g., 42 U.S.C. § 2000a-3(b) quoted supra and statutes cited
at note 4 supra.
8a
Pipeline Service Co. v. Wilderness Society, supra,* and
given the Alyeska mandate that, to overcome the barrier
of 28 U.S.C. § 2412, fee awards against the United States
must be “expressly provided for by statute,” 421 U.S. at
267-68, it is difficult to believe that if Congress had in-
tended to override § 2412, it would not have used lan-
guage in the Awards Act at least as clear and unequivocal
as it has used in the past to waive federal sovereign
immunity. Cf. Shannon v. United States Department of
Housing and Urban Development, 433 F. Supp. 249, 251
(E.D. Pa. 1977), aff'd, 577 F.2d 854 (3d Cir.), cert.
denied, 47 U.S.L.W. 3381 (Dec. 14, 1978) (“The un-
equivocal language to which the Court adverted in Alyeska
and that contained in [prior statutes authorizing at-
torney’s fees awards against the United States] stands
in stark contrast to the silence of the Fees Awards
Act.”) Instead, the only specific waiver contained in the
Awards Act occurs with respect to actions brought “by
or on behalf of the United States . . . to enforce, or
charging a violation of, a provision of” the Internal
Revenue Code. See Aparacor, Inc. v. United States, 571
F.2d 552 (Ct. Cl. 1978). While the liability of the United
States for fees in tax cases might have been more spe-
cifically defined, Congress’ intent to waive federal im-
munity in the IRS suits is necessarily inferred since the
United States and the taxpaying public are the only par-
ties conceivably included within the provision, and the
Awards Act allows an award to “the prevailing party
other than the United States.” No similar inference
necessarily arises with respect to the remaining portions
of the Act since the United States is neither the sole nor
even the most likely defendant under the civil rights
statutes in question.®
8 See H. Rep. No. 94-1558, 94th Cong., 2d Sess. at 2 (1976);
S. Rep. No. 94-1011, 94th Cong., 2d Sess. at 1 (1976).
® Actions under the Reconstruction Era Civil Rights statutes are
generally brought by individuals against other individuals or against
Considering the plain language of the Awards Act, we
agree with the government that the most that can fairly
be said is that the Act does not, on its face, preclude
an assessment of attorney’s fees against the United
States. As this Court indicated in Fitzgerald v. United
States Civil Service Commission, supra, 554 F.2d at 1189,
however, the “absence of” language “contrary” to an
award of attorney’s fees against the government is not
enough. There “must be [an] unequivocally expressed”
affirmative authorization to overcome 28 U.S.C. § 2412.
We find nothing in the Supreme Court’s opinion in
Hutto v. Finney, supra, to contradict our reading of the
Awards Act. In ruling that state and local governments
are liable for attorney’s fees under the Act, the Court in
Hutto v. Finney rejected the state’s argument that in
order to abrogate the state’s immunity under the Eleventh
Amendment, Congress must “enact express statutory lan-
guage making the states liable.” 98 S.Ct. at 2576. The
Court emphasized that the Act imposes attorney’s fees
“as a part of costs” and that costs have traditionally
been awarded against the states without regard to the
Eleventh Amendment. Id. The Court then concluded:
“It is much too late to single out attorney’s fees as
the one kind of litigation costs whose recovery may
not be authorized by Congress without an express
statutory waiver of the States’ immunity.” Jd. at
2577-78.
state or local governments. See Hutto v. Finney, supra, 98 S.Ct. at
2575. On their face, these statutes contain no waiver of federal
sovereign immunity nor do they appear to create a cause of action
against the United States as an entity. With respect to Title VI
of the Civil Rights Act of 1964 and Title IX of the Education
Amendments of 1972, at the time the Awards Act was passed Con-
gress was uncertain whether a private action could even be brought
under these statutes. Since that time, the Supreme Court has ruled
that private causes of action are cognizable under Title IX. Can-
non V. University of Chicago, 47 U.S.L.W. 4549 (May 14, 1979).
10a
In Hutto v. Finney, the Supreme Court considered the
absence of an express statutory waiver no obstacle to an
award of attorney’s fees against the states. The same
cannot be said with respect to federal liability. In the
case of the federal government, there is no long tradition
of awarding costs as a matter of course. Instead, prior
to the amendment of 28 U.S.C. § 2412 in 1966, costs were
recoverable against the United States only if expressly
provided for by statute." Moreover, § 2412 explicitly
requires what the Supreme Court concluded the Eleventh
Amendment does not—that is, an express abrogation of
immunity from attorney’s fees awards.
In concluding that the Awards Act authorizes awards
of fees against the states, the Court in Hutto v. Finney
also relied on legislative history which focused directly
on state liability and established unequivocally that Con-
gress intended the Awards Act to waive state immunity.
98 S.Ct. at 2575-76. No such unequivocal indication of
congressional intent exists with respect to the issue of
federal immunity. The floor debate surrounding passage
of the Awards Act contains indications of divergence of
opinion among members of Congress as to the implica-
tions of the Act for federal liability.‘ The House and
10 See discussion note 3 supra.
11 Thus, for example, Congressman Railsback, the ranking Re-
publican on the House Judiciary Committee which drafted the
Awards Act, seemed to suggest that attorney’s fees might be
recoverable against the United States when, in response to a ques-
tion, he said:
“Mr. Speaker, if the gentleman will yield further, again it
would be in the discretion of the court and nowhere in the
bill do we prevent a school district or college from recovering
reasonable attorneys fees, even in a case where the United
States is a party plaintiff.” 121 Cong. Rec.H. 12164 (daily ed.,
October 1, 1976).
However, a contrary stance appears to have been taken by Congress-
man Rodino, the Chairman of the House Judiciary Committee, in
his response to a request from Senator Kennedy for comments on an
lla
Senate Committee Reports on the attorney’s fee legis-
lation contain no discussion of the question of federal
liability. This silence appears significant since the Com-
mittee Reports are the references members of Congress
are probably most likely to consult before casting their
votes for an understanding of the purpose and effect of a
bill. Maestro Plastics v. NLRB, 350 U.S. 270, 287-89
(1956) ; American Airlines, Inc. v. CAB, 365 F.2d 939
(D.C. Cir. 1966); Sutherland, Statutes and Statutory
Construction, § 48.06, p. 203 (4th ed.). Had Congress
intended to abrogate federal sovereign immunity for pur-
poses of the Awards Act, some discussion of the matter
by the respective House and Senate Committees respon-
sible for the legislation in their Committee Reports might
have been expected.
The only direct support found in either Committee
Report for the proposition that the federal government
might be liable for fees under the Awards Act is a cita-
tion to Gatreauw v. Hills, 425 U.S. 284 (1976), a case
involving a Title VI claim brought against the Secretary
of Housing and Urban Development, which appears in
the House Report as part of a string of cases cited as
examples of instances in which government officials have
been defendants in civil rights actions. H. Rep. No. 94-
1558, 94th Cong., 2d Sess. at 7 (1976). This oblique
reference to federal liability is, we think, hardly sufficient
amendment offered by Senator Goldwater which would have sub-
jected the United States to broad liability for attorney’s fees in tax
cases:
“I fear that Senator Goldwater’s amendment . . . will jeopardize
the Civil Rights Attorney’s Fees Awards Act of 1976. S. 2278
presently is a very narrow bill. . . . It does not involve federal
spending. . . . The Committee is presently studying other bills,
like Senator Goldwater’s, which would go far beyond the ‘Ameri-
can Rule’ or the ‘private attorney general’ exception to it, and
which may allow recovery against the Federal Government. We
hope to take action next Congress on such bills.” 122 Cong.
Rec. S. 16490 (daily ed., Sept. 23, 1976).
12a
to constitute the kind of clear statutory authorization
required to waive federal sovereign immunity with re-
spect to attorney’s fees awards.”
12 Appellees in the Andrulis case offer two additional theories
under which they submit the award of attorney’s fees in their case
might be sustained. We find neither of these theories persuasive.
Appellees rely on the language of § 5(b) of the Small Business Act,
15 U.S.C. § 634(b) which provides that the Administrator of the
SBA may “sue and be sued . .. in any United States district
court. . . .” Appellees submit that the “sue and be sued” clause,
which places the SBA on a par with private parties for purposes of
federal court litigation, Mar v. Kleppe, 520 F.2d 867, 870 (10th Cir.
1975), constitutes an “express statutory consent” satisfying the
requirements of 28 U.S.C. § 2412.
We acknowledge that through the “sue and be sued” clause
Congress has provided a limited waiver of the sovereign immunity
generally afforded agencies of the federal government. However,
it is well established that Congress in waiving governmental im-
munity has the power to waive immunity entirely or to waive it for
some purposes and retain it for others. See Federal Housing Admin-
istration Region No. 4 V. Burr, 309 U.S. 242, 244 (1939), and cases
cited therein. Congress made no mention of attorney’s fees in
permitting the Administrator of the SBA to “sue and be sued.”
Moreover, the clause was enacted at a time when, under the “Ameri-
can Rule,” the payment of attorney’s fees would not have been
regarded as an ordinary incident of litigation. Thus it seems logical
to assume that in subjecting the SBA to suit Congress did not ex-
pect the government to be liable for attorney’s fees. In any event,
because § 5(b) of the Small Business Act neither directly nor ex-
pressly authorizes an award of fees, it appears inadequate on its
face to override the general bar of 28 U.S.C. § 2412. See Cassata
v. Federal Savings and Loan Insurance Corp., 445 F.2d 122 (7th
Cir. 1971) (Section 2412 held to preclude the recovery of attorney’s
fees from the FSLIC which, like the SBA, is a “sue and be sued”
agency, see 12 U.S.C. § 1725(c)(4)).
In the alternative, appellees contend that an amendment to the
Administrative Procedure Act (APA) enacted contemporaneously
with the Awards Act contains an express waiver of sovereign
immunity sufficient to sustain an award of fees in the instant case.
The APA amendment provides:
“An action in a court of the United States seeking relief other
than money damages . .. shall not be dismissed nor relief
therein be denied on the ground that it is against the United
States... .” 5 U.S.C. § 702.
[Footnote continued on page 13a]
13a
Given the importance of attorney’s fees in ensuring
enforcement of our civil rights laws, a strong policy argu-
ment can be made that the Awards Act should permit
the recovery of attorney’s fees against the federal govern-
ment.’* We leave for the Congress, however, the decision
of whether to amend the Awards Act to explicitly allow
12 [Continued]
Appellees submit that § 702 expressly waives sovereign immunity
for relief against the United States, except for money damages,
and the Awards Act provides a type of relief, attorney’s fees, which
the Supreme Court has concluded do not constitute money damages.
Hutto v. Finney, supra, 98 S.Ct. at 2576, n. 24. Together, appellees
claim, these statutes combine to expressly authorize the award of
fees against the United States.
While imaginative, appellees’ argument is unconvincing. The legis-
lative history surrounding passage of the APA amendment sug-
gests that Congress sought by the amendment to achieve the narrow
purpose of withdrawing the defense of sovereign immunity in ac-
tions against federal agencies in which “specific relief” such as
“an injunction, declaratory judgment, or writ of mandamus” not
requiring any federal expenditure was sought. H. Rep. No. 94-1656,
94th Cong., 2d Sess. at 4-5 (1976). The amendment says nothing
about the recovery of attorney’s fees ancillary to such an action
and, indeed, the amendment itself provides that “nothing herein
. . . confers authority to grant relief if any other statute that
grants consent to suit expressly or impliedly forbids the relief
which is sought.” 5 U.S.C. § 702. Section 2412 forbids the award
of attorney’s fees against the United States absent express statutory
authorization. We do not view the APA amendment as satisfying
or modifying in any way that requirement.
18 In this regard, the Committee Report accompanying the Senate
version of the Act notes as particularly apt a Supreme Court opinion
containing the following quotation of former Justice Tom Clark in a
suit brought under the Landrum-Griffin Act:
“Not to award counsel fees in cases such as this would be
tantamount to repealing the Act itself by frustrating its basic
purpose. . . . Without counsel fees the grant of Federal juris-
diction is but an empty gesture. . . . Hall v. Cole, 412 US. 1
(1973), quoting 462 F.2d 777, 780-81 (2d Cir. 1972).” S. Rep.
No. 94-1011, 94th Cong., 2d Sess. at 3 (1976).
The same comment might appropirately be made with respect to en-
forcement of the rights afforded under the civil rights statutes as
applied to the federal government.
l4a
recovery of fees against the United States, realizing that
to do otherwise would be to exceed the limits of our
interpretive function.
Insofar as they award attorney’s fees to appellees, the
orders of the district courts are reversed.
WRIGHT, Chief Judge, dissenting: The Civil Rights
Attorneys’ Fees Awards Act of 1976, 42 U.S.C. § 1988
(1976), authorizes the award of attorneys’ fees to “the
prevailing party, other than the United States,” in “any
action or proceeding to enforce [certain civil rights
laws].” + The “necessary implication,” see majority opin-
ion at 6, from the language of the statute, the purposes
behind its enactment, and its legislative history is that
Congress intended to authorize fee awards against the
United States under the Act.? Appellees in both cases
before us are “prevailing parties” within the meaning of
the Act. For these reasons, I would affirm the judgments
of the District Court in both cases.
142 U.S.C. § 1988 (1976) provides in relevant part:
In any action or proceeding to enforce a provision of sections
1981, 1982, 1983, 1985, and 1986 of this title, title IX of
Public Law 92-318 [20 U.S.C. § 1681 et seq.], or in any civil
action or proceedings, by or on behalf of the United States
of America, to enforce, or charging a violation of, a provision
of the United States Internal Revenue Code, or title VI of the
Civil Rights Act of 1964 [42 U.S.C. § 2000d et seq.], the court,
in its discretion, may allow the prevailing party, other than
the United States, a reasonable attorney’s fee as part of the
costs.
(Brackets in original.) NAACP v. Civiletti, No. 78-1639, was
brought under, inter alia, 42 U.S.C. §§ 1981, 1985 (1976). Andrulis
v. United States, No. 78-2039, alleged discrimination in violation,
inter alia, of 42 U.S.C. §§ 1981, 1985 (1976).
2 Appellees in Andrulis v. United States, No. 78-2039, suggest
two additional theories on which the award of attorneys’ fees in
that case might be sustained. See majority opinion at 13 n.12.
Because I conclude that § 1988 authorizes awards against the fed-
eral government, I do not reach these alternative arguments.
lba
I
The majority rightly points out that a party seeking
to recover attorneys’ fees against the United States must
surmount the barrier posed by the doctrine of sovereign
immunity.* A waiver of sovereign immunity “ ‘cannot be
implied but must be unequivocally expressed.’” United
States v. Testan, 424 U.S. 392, 399 (1976), quoting
United States v. King, 395 U.S. 1, 4 (1969). The Su-
preme Court in Testan described the test for the specific-
ity required as “whether any federal statute ‘can fairly
be interpreted as mandating compensation by the Federal
Government * * *.’ Eastport S. S. Corp. v. United States,
178 Ct. Cl., at 607, 372 F.2d, at 1009; Mosca v. United
States, 189 Ct. Cl. 283, 290, 417 F.2d 1382, 1386 (1969),
cert. denied, 399 U.S. 911 (1970). We are not ready to
tamper with these established principles * * *.” 424 U.S.
at 400. Thus the question presented by these cases is
whether Section 1988 “can fairly be interpreted as man-
dating [payment of attorneys’ fees] by the Federal Gov-
ernment.” The majority says that this may be done in
one of two ways: (1) statutory language that specifically
refers to the liability of the United States; and (2) neces-
sary implication from the statutory context in which the
fee provision arises. Majority opinion at 5-6. In my view,
Section 1988 satisfies the latter test.
8In this particular context this doctrine is reiterated in 28
U.S.C. § 2412 (1976), which proscribes fee awards against the
United States except where specifically provided for by statute.
Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240,
257-259 (1975). Section 2412 states:
Except as otherwise specifically provided by statute, a judg-
ment for costs, as enumerated in section 1920 of this title but
not including the fees and expenses of attorneys[,] may be
awarded to the prevailing party in any civil action brought
by or against the United States or any agency or official of
the United States acting in his official capacity, in any court
having jurisdiction of such action. * * *
16a
II
Congress enacted Section 1988 in response to the Su-
preme Court decision in Alyeska Pipeline Service Co. v.
Wilderness Society, 421 U.S. 240 (1975). In Alyeska the
Court held that federal courts do not have the power to
award attorneys’ fees to prevailing parties without spe-
cific statutory authorization. Prior to that decision lower
federal courts had followed the fee-shifting policies Con-
gress enacted in the attorneys’ fees provisions of several
civil rights statutes, for example, Titles II and VII of the
Civil Rights Act of 1964,* 42 U.S.C. §§ 2000a-3(b), 2000e-
5(k) (1976), and awarded attorneys’ fees to prevailing
parties in cases brought under other civil rights laws.*
In Congress’ view Alyeska
created anomalous gaps in our civil rights laws
whereby awards of fees are * * * suddenly unavail-
able in the most fundamental civil rights cases. For
instance, fees are now authorized in an employment
discrimination suit under Title VII * * *, but not
in the same suit brought under 42 U.S.C. § 1981,
which protects similar rights but involves fewer
technical prerequisites to the filing of an action.
S. Rep. No. 94-1011, 94th Cong., 2d Sess. 4 (1976). To
eliminate these “anomalous gaps” Congress enacted the
Civil Rights Attorneys’ Fees Awards Act.
* Title II of the Civil Rights Act of 1964 provides:
In any action commenced pursuant to this subchapter, the
court, in its discretion, may allow the prevailing party, other
than the United States, a reasonable attorney’s fee as part of
the costs, and the United States shall be liable for costs the
same as a private person.
42 U.S.C. § 2000a-3(b) (1976).
5 See, e.g., Sims v. Amos, 340 F.Supp. 691 (M.D. Ala.) (three-
judge court), aff'd, 409 U.S. 942 (1972) ; Stanford Daily v. Zurcher,
366 F.Supp. 18 (N.D. Cal. 1973), aff'd, 550 F.2d 464 (9th Cir. 1977),
rev'd on other grounds, 436 U.S. 547 (1978).
17a
One theme that runs through the legislative history of
the Act is the belief that attorneys’ fees awards are
crucial to vigorous enforcement of the civil rights statutes
covered by Section 1988. Quoting the words of the late
Supreme Court Justice Tom Clark, the Senate Report
declared:
“Not to award counsel fees in cases such as this
would be tantamount to repealing the Act itself by
frustrating its basic purpose. * * * Without counsel
fees the grant of Federal jurisdiction is but an
empty gesture * * *. Hall v. Cole, 412 U.S. 1 (1973),
quoting 462 F.2d 777, 780-81 (2d Cir. 1972).”
S. Rep. No. 94-1011, supra, at 3.° The award of at-
torneys’ fees is crucial because these civil rights laws
depend heavily on private enforcement.? And as this
court has noted, the policy favoring private enforcement
of the civil rights laws is particularly compelling when
a federal agency or official is the defendant. Unlike the
6 Senator Kennedy said in the Senate:
It is a fundamental axiom of law that where there is a right
the law should provide a remedy. Yet, without a provision
to permit awards of attorneys’ fees to successful parties, the
rights secured by those civil rights laws covered by this act
are hollow rights indeed. Enactment of this legislation would do
much to assure all the citizens of this Nation that the words
“equal protection of law” mean what they say, and that Con-
gress firmly intends that all our civil rights laws be vigorously
enforced.
122 Conc. Rec. S 16252 (daily ed. Sept. 21, 1976), Congressman
Drinan remarked in the House:
If Federal laws providing for the protection of civil consti-
tutional rights are to be fully enforced, Congress must provide
effective remedies for the vindication of those guarantees.
Authorizing the award of reasonable counsel fees is an im-
portant tool for effectuating that purpose.
122 Conc. Rec. H 12160 (daily ed. Oct. 1, 1976).
7S. Rep. No. 94-1011, 94th Cong., 2d Sess. 2 (1976); H.R. Rep.
No. 94-1558, 94th Cong., 2d Sess. 1 (1976).
18a
cases involving private or state defendants, the complain-
ants are not merely “private attorneys general’; they are
the only attorneys general.* The Department of Justice
does not sue other federal government agencies for vio-
lations of the civil rights laws. Indeed, as in the instant
cases, the Justice Department is frequently counsel for
the other side. Thus the reasons behind the enactment of
Section 1988 support the inference that it authorizes
awards of attorneys’ fees against the United States and
caution against interpreting the statute in a manner that
will frustrate Congress’ purposes.® As this court has said,
“{O]ur duty is to favor an interpretation which would
render the statutory design effective in terms of the poli-
cies behind its enactment and to avoid an interpretation
which would make such policies more difficult of fulfill-
ment, particularly where * * * that interpretation is
consistent with the plain language of the statute.”
National Petroleum Refiners Ass’n v. FTC, 482 F.2d 672,
689 (D.C. Cir. 1973), cert. denied, 415 U.S. 951 (1974).
This is particularly essential where civil rights statutes
are involved. Courts must accord such a statute “a sweep
as broad as its language.” United States v. Price, 383
U.S. 787, 801 (1966) ; Jones v. Alfred H. Mayer Co., 392
8 Parker v. Califano, 561 F.2d 820, 331 (D.C. Cir. 1977).
® Courts have construed civil rights attorneys’ fees provisions
very broadly in order to further Congress’ purposes. Thus the
Supreme Court held in Newman vy. Piggie Park Enterprises, Inc.,
390 U.S. 400 (1968), that notwithstanding the statutory language
that the District Court “in its discretion” may award costs to the
prevailing party, the purpose of encouraging private enforcement
dictates that a prevailing party should recover attorneys’ fees
“unless special circumstances would render such an award unjust.”
Id. at 402. In Johnson v. Georgia Highway Express, Inc., 488 F.2d
714 (5th Cir. 1974), the court observed: “This Court, as part of
its obligation ‘to make sure that Title VII works,’ has liberally
applied the attorney’s fees provision of Title VII, recognizing the
importance of private enforcement of civil rights legislation.”
Id. at 716 (footnote omitted) (quoting Culpepper v. Reynolds Metals
Co., 421 F.2d 888, 891 n.3 (5th Cir. 1970)).
19a
U.S. 409, 487 (1968) ; Griffin v. Breckenridge, 403 U.S.
88, 97 (1971).
III
Congress used very broad language when it enacted
Section 1988. The Act authorizes the award of attorneys’
fees in “any action or proceeding.” (Emphasis added.)
The Supreme Court recently confirmed the Act’s broad
reach when it held in Hutto v. Finney, 487 U.S. 678
(1978), that the language of the statute was sufficient
to overcome the states’ Eleventh Amendment immunity.
In so holding the Court said:
The Act itself could not be broader. It applies to
“any” action brought to enforce certain civil rights
laws. It contains no hint of an exception for States
defending injunction actions * * *. * * *
Id. at 694. The language of the Act is also broad enough
to apply to actions against the federal government. While
the Act does not specifically mention the liability of the
United States in civil rights cases,’ not every attorneys’
10 Section 1988 authorizes fee awards to the prevailing party
in “any civil action or proceedings, by or on behalf of the United
States of America, to enforce, or charging a violation of, * * * the
* * * Internal Revenue Code * * *.” The Government argues that
this is the only specific waiver in § 1988, and that the failure to
mention the United States in the civil rights portion of § 1988 as
well shows that the “any action” reference does not apply to the
United States.
This argument is unpersuasive. The IRS section was an amend-
ment to the original bill sponsored by Senator Allen. It was
accepted by the bill’s sponsors as a compromise to end a filibuster
of the bill led by Senator Allen. The purpose of the Allen amend-
ment was to provide relief to taxpayers who are being harassed
by the Government.
We know all too well the proclivity of the IRS to harass
taxpayers * * *. [I]f the Government harasses a taxpayer,
* * * then the Government should be required to pay that
attorney fee.
[Footnote continued on page 20a]
20a
fees provision that has been found to authorize fee
awards against the federal government has specifically
mentioned the liability of the United States.
For example, in Natural Resources Defense Council,
Inc. Vv. EPA, 484 F.2d 1331 (1st Cir. 1973), the First
Circuit held that Section 304(d) of the Clean Air Act,
now codified at 42 U.S.C. § 7604(d) (Supp. I 1977),
authorized an award of attorneys’ fees against the United
States. The court rejected the Government’s claim that
fee awards against the federal government were not
authorized because the Act’s “any party” language did
not specifically refer to the liability of the United States."
10 [Continued]
122 Conc. Rec. S 16428 (daily ed. Sept. 22, 1976) (remarks of
Sen. Allen). Since the Allen amendment only authorizes fee awards
in certain actions brought by the IRS, it could not have used
the term “any action” or “any action under the Internal Revenue
Code.” Hence, by mentioning the United States specifically in the
IRS portion of § 1988 Congress merely intended to make it plain
that § 1988 does not apply to all tax cases. On the other hand, in
enacting the civil rights fee provision “Congress firmly intend[ed]
that all our civil rights laws be vigorously enforced.” 122 Conc.
Rec. S 16252 (daily ed. Sept. 21, 1976) (remarks of Sen. Kennedy)
(emphasis added).
Indeed, a strightforward reading of the statute suggests the
exact opposite of the Government’s contention. The phrase “any
action or proceeding” is used twice in the statute. The natural
inference is that the phrase has the same meaning and coverage
in the two uses (this explains why the limiting language “by or
on behalf of the United States of America” was necessary). Since
the phrase unmistakably encompasses awards against the United
States in the IRS context, it is reasonable to assume that the same
holds for the civil rights use.
11 Section 304(d) provides:
The court, in issuing any final order in any action brought
pursuant to subsection (a) of this section, may award costs
of litigation (including reasonable attorney and expert wit-
ness fees) to any party, whenever the court determines such
award is appropriate. * * *
42 U.S.C. § 7604(d) (Supp. I 1977).
2la
Moreover, this court recently held, without opposition
from the Government, that the recent amendment of
Section 307 of the Clean Air Act, 42 U.S.C. § 7607(f)
(Supp. I 1977), to permit fee awards “[i]n any judicial
proceeding under this section” * authorizes fee awards
against the federal government. Sierra Club v. EPA,
D.C. Cir. No. 76-1037, order of April 27, 1979 (award
of attorneys’ fees of $11,760 to Sierra Club ordered paid
by EPA) (case consolidated with ASARCO v. EPA, D.C.
Cir. No. 76-1030). Equally instructive is the fact that
Congress only recently enacted Section 505(b) of the
Rehabilitation, Comprehensive Services, and Develop-
mental Disabilities Amendments of 1978, Pub. L. No. 95-
602, 92 STAT. 2983, an attorneys’ fees provision which,
in the words of its sponsor, “parallels the Civil Rights
Attorneys’ Fees Awards Act of 1976 * * *.” 124 ConG.
REc. S. 15590 (daily ed. Sept. 20, 1978) (remarks of Sen.
Cranston). The language of Section 505(b) is virtually
the same as that of Section 1988.1* Section 505(b)’s
sponsor and the accompanying Committee Reports made
it clear that this attorneys’ fee provision is to be used to
vindicate rights against the federal government. If
12 42 U.S.C. § 7607(f) (Supp. I 1977) states:
In any judicial proceeding under this section, the court may
award costs of litigation (including reasonable attorney and
expert witness fees) whenever it determines that such award
is appropriate.
13 Section 505(b) provides:
In any action or proceeding to enforce or charge a violation
of a provision of this title, the court, in its discretion, may
allow the prevailing party, other than the United States, a
reasonable attorney’s fee as part of the costs.
14 Senator Cranston, in introducing the attorneys’ fees provision,
said:
Mr. President, the rights extended to handicapped individuals
under title V of the Rehabilitation Act of 1973—Federal
Government employment, physical accessibility in public build-
ings, employment under Federal contracts, and non-discrimina-
22a
Congress thought Section 505(b) was precise enough to
apply to the United States, then the same may be said of
the statute after which it was modeled, Section 1988.
IV
The legislative history of Section 1988 provides sub-
stantial support for the conclusion that Congress intended
to authorize fee awards against the United States under
the Act.
A
There are numerous indications in the Senate and
House Reports that Congress intended Section 1988 to
have substantially the same coverage as the attorneys’
fees provisions of the 1964 Civil Rights Act which apply
to the federal government. Both Reports stressed the fact.
that the legislation was designed to make our civil rights
laws consistent. The Senate Report said: “The purpose
of this amendment is to remedy anomalous gaps in our
civil rights laws created by [the Alyeska decision], and
to achieve consistency in our civil rights laws.” S. Rep.
No. 94-1011, supra, at 1. In a similar vein the House
Report stated: “In order to achieve uniformity in the
remedies provided by Federal laws guaranteeing civil
and constitutional rights, it is necessary to add an at-
torney fee authorization to those civil rights acts which
do not presently contain such a provision.” H.R. Rep.
No. 94-1558, 94th Cong., 2d Sess. 1 (1976). Both Re-
ports stressed that Section 1988 was fashioned after the
tion under Federal grants—are and will continue to be in
need of constant vigilance by handicapped individuals to as-
sure compliance. Pri{va]te enforcement of these title V rights
is an important and necessary aspect of assuring that these
rights are vindicated and enforcement is uniform. The avail-
ability of attorneys’ fees should assist substantially in this
respect. * * *
124 Conc. Rec. S 15590 (daily ed. Sept. 20, 1978). See also S. Rep.
No. 95-890, 95th Cong., 2d Sess. 19 (1978).
23a
attorneys’ fees provisions of the 1964 Civil Rights Act.
The Senate Report noted: “S. 2278 follows the language
of Titles II and VII of the Civil Rights Act of 1964 * * *.”
S. Rep. No. 94-1011, supra, at 2. The House Report
stated: “H.R. 15460 tracks the language of the counsel
fee provisions of Titles II and VII of the Civil Rights
Act of 1964 * * *.” H.R. Rep. No. 94-1558, supra, at 5.
The Reports also explained that the standards for award-
ing fees under Section 1988 would “be generally the same
as under the fee provisions of the 1964 Civil Rights Act.”
S. Rep. No. 94-1011, supra, at 4. The natural inference
from all these factors is that Congress intended Section
1988’s coverage to be the same as the coverage of the fee
provisions of the 1964 Act. That Congress omitted the
language specifically referring to the liability of the
United States for attorneys’ fees is not significant.’
Given all the indications that Congress intended Section
1988 to be just like the other civil rights attorneys’ fees
provisions, it is reasonable to assume that if Congress
had intended to depart from the norm by immunizing the
federal government from liability it would have done so
explicitly.
The majority agrees that another section of the House
Report contains further support for the view that Section
1988 applies to the federal government. See majority
opinion at 12-13. In discussing the issue of fee awards to
prevailing defendants, the House Report pointed out:
[I]t should further be noted that governmental of-
ficials are frequently the defendants in cases brought
under the statutes covered by H.R. 15460 [the bill
which became § 1988]. See, e.g., * * * Gautreaux
15 The inference that the omission was deliberate and significant
would have been more plausible if the same Congress had drafted
the two statutes, or if in place of the “any party” language the
fee provisions listed the parties covered, and the United States
was included in one list but not in the other.
24a
v. Hills, [425 U.S. 284 (1976)]. Such governmental
entites and officials have substantial resources avail-
able to them through funds in the common treasury,
including the taxes paid by the plaintiffs themselves.
* * * The greater resources available to governments
provide an ample base from which fees can be
awarded to the prevailing plaintiff in suits against
governmental officials or entities.
H.R. Rep. No. 94-1558, supra, at 7 (footnote omitted).
By citing Gautreaux v. Hills, a case involving a Title VI
claim brought against a federal cabinet officer, as an
example of a case in which a government official could be
a defendant in a civil rights suit, and by pointing out
that such officials would be liable for fee awards under
Section 1988, the Report supports the inference that Con-
gress intended the federal government to be liable for fee
awards.
B
Both the majority in its opinion and the Government
in its briefs have studiously avoided any mention of the
hearings on the legislation that became Section 1988.
This is unfortunate because the report of these hearings
shows that even the Department of Justice, represented
by Rex E. Lee, Assistant Attorney General for the Civil
Division, recognized that the legislation before the House
Subcommittee would authorize fee awards against the
federal government. In his testimony in support of the
legislation, Mr. Lee said:
H.R. 8220 would authorize the awarding of at-
torneys’ fees to a prevailing plaintiff in actions
brought under certain civil rights statutes. Actions
under the statutes involved have been brought against
both Federal officers and private individuals.
* * * +
H.R. 9552 authorizes the awarding of attorneys’
fees as a matter of discretion in certain civil rights
25a
litigation. The prevailing party, other than the
United States, may recover attorneys’ fees.
Thus, H.R. 9552 applies to all plaintiffs or defend-
ants except to the United States to the extent that
it is a prevailing party.
AWARDING OF ATTORNEYS’ FEES, Hearings Before the
House Judiciary Subcommittee on Courts, Civil Liberties,
and the Administration of Justice, 94th Cong., 1st Sess.
176-177 (1975) (emphasis added) (hereinafter “House
Hearings”).'® Equally revealing is the statement by Con-
gressman Drinan. In introducing H.R. 9552 and several
other attorneys’ fees provisions he told the Subcommittee
that:
{[U]nder these bills the Federal government could
never recover its attorneys fees. On the other hand,
it would be required to pay the counsel fees of a
private prevailing party, which is prohibited gen-
erally by current law (see 28 U.S.C. 2412). These
bills, if enacted, would be exceptions to the general
prohibition in 28 U.S.C. 2412. That section need not
be amended, however, since it now states: “Except
as otherwise specifically provided by statute... .”
16 Mr. Lee went on:
[The Department of Justice expresses] support in principle
for H.R. 8220 and H.R. 9552, awarding of attorneys’ fees to
a prevailing party in civil rights actions under the revised
statutes (sections 1981, 1982, and 1983, 1985, and 1986, of
title 42, United States Code).
AWARDING OF ATTORNEYS’ FEES, Hearings Before the House Ju-
diciary Subcommittee on Courts, Civil Liberties, and the Adminis-
tration of Justice, 94th Cong., Ist Sess. 179 (1975) (hereinafter
“House Hearings”). H.R. 8220 and H.R. 9552 differed from each
other only in that the former made the award of attorneys’ fees
mandatory whereas the latter made it discretionary. Mr. Lee fav-
ored discretionary awards and also had reservations about fee
awards in every § 1983 case. Thus he supported the bills “in prin-
ciple.” See House Hearings at 176-180.
26a
House Hearings at 53 (emphasis added). H.R. 9552
became the House version of the legislation that was
enacted as Section 1988. The language of H.R. 9552 was
virtually identical to Section 1988 as it passed Congress."
To be sure, courts are generally wary of testimony before
committee hearings as aids to statutory construction.
See S&E Contractors, Inc. v. United States, 406 U.S. 1,
13 n.9 (1972). However, courts are willing to attach
great weight to such testimony when it consists of
“precise analyses of statutory phrases by the sponsors of
the proposed laws.” Jd. Congressman Drinan introduced
H.R. 9552 to the House Judiciary Subcommittee and was
the chief sponsor of Section 1988 in the House. Both the
House Report and the floor debates referred to Mr. Lee
as a principal source of interpretation for Section 1988.'*
17 H.R. 9552 provided:
In any action to enforce a provision of sections 1977, 1978,
1979, 1980, and 1981 of the Revised Statutes, or title VI of the
Civil Rights Act of 1964, the court, in its discretion, may allow
the prevailing party, other than the United States, reasonable
attorney fees as part of the costs.
House Hearings, supra note 16, at 244. This bill was approved
by the House Judiciary Subcommittee with a technical amendment
which conformed it to the Senate version, S. 2278, which at the
time had cleared the Senate Judiciary Committee and was awaiting
action by the full Senate. H.R. 9552 was subsequently approved
by the House Judiciary Committee with an amendment that added
title IX of Public Law No. 92-318 to the statutes covered by the
bill. A clean bill, H.R. 15460, was then reported to the full House.
Other than the addition of title IX the only differences between
H.R. 9552 and H.R. 15460 (the clean bill) were technical changes,
not affecting the substance, made on the advice of the House Parlia-
mentarian and staff and legislative counsel. See H.R. Rep. No. 94-
1558, supra note 7, at 3-4 & n.4. Time pressures made it necessary
for the House to adopt the Senate version, S. 2278, in place of
H.R. 15460. However, the two bills were nearly identical.
18 See, e.g., H.R. Rep. 94-1558, supra note 7, at 6; 122 Conc. REc.
H 12162 (daily ed. Oct. 1, 1976) (remarks of Rep. Kastenmeier).
27a
C
Much of the Government’s purported support for its
claim that Section 1988 does not authorize awards against
the United States derives from the floor debates. How-
ever, fairly considered the debates offer the Government
little support. Rather, they support the conclusion that
Congress intended Section 1988 to apply to the United
States.
~
1. The Senate Debates
In his remarks in support of the bill Senator Hugh
Scott, who opened the debate on S. 2278, explained that
its enactment would “assure that attorneys’ fees will be
available in suits brought under the reconstruction-era
civil rights laws, * * * in the same fashion and to the
same extent as the statutes presently provide in cases
brought under title VII of the 1964 Civil Rights Act.”
122 ConG. REc. S 16251 (daily ed. Sept. 21, 1976) (em-
phasis added). Since the United States is liable for
attorneys’ fees in Title VII cases, the natural inference
from this is that fees may be awarded against the United
States under Section 1988.
The Government relies on an amendment offered by
Senator Helms, an opponent of the bill, which purportedly
shows that he understood the bill not to apply to the
United States. However, a closer examination of the
Helms amendment shows that Senator Helms misunder-
stood the import of the phrase “other than the United
States.” Section 1988 authorizes the award of fees to
“the prevailing party, other than the United States * * *.”
The amendment would have inserted the phrase “or any
State * * * or any political subdivision thereof” after the
latter phrase. 122 Conca. Rec. S 16433 (daily ed. Sept.
22, 1976). But the effect of this addition would have
been to deny both the United States and state and local
governments the right to recover attorneys’ fees if they
28a
were prevailing parties. On the other hand, it is signifi-
cant that Senator Allen, a principal opponent of the
bill,** understood it to permit awards against the federal
government. He unsuccessfully sponsored an amendment
that would have limited the liability of the United States
to situations in which an official of the federal govern-
ment “has acted in a contumacious or vexatious manner.”
122 Cone. Rec. S 16567 (daily ed. Sept. 24, 1976).”
19 Senator Allen led a filibuster against the bill which he ended
only when the bill’s sponsors compromised by accepting an amend-
ment that he proposed. See 122 Conc. Rec. S 17050 (daily ed.
Sept. 29, 1976) ; note 10 supra.
20 The Government points to a Congressional Budget Office (CBO)
“estimate” (see S. Rep. No. 94-1011, supra note 7, at 7; H.R. Rep.
No. 94-1558, supra note 7, at 10) that enactment of the bill would
result in no additional costs to the Government. This “no cost”
feature of the bill was referred to in the floor debates. A few
points are worth noting in assessing the significance of this “no
additional costs” estimate. First, it appears that attorneys’ fees
awards against the Government are paid from the Department’s
existing appropriations. Mr. Lee confirmed this in his testimony
before the House Judiciary Subcommittee . He said:
[A]ttorneys’ fees awards * * * necessarily reduce available re-
sources, with concommitant impact on other Government
programs.
House Hearings, supra note 16, at 178 (emphasis added). Thus
the CBO did not foresee any additional costs (i.e., new appropria-
tions) to the Government. Second, it is significant that although
the United States is liable for attorneys’ fees under other civil
rights statutes passed prior to § 1988, and is liable under § 1988
to prevailing defendants in some internal revenue cases, there is
no line item in the Justice Department’s appropriations for such
payments. These payments are apparently made from a general
fund for “expenses necessary for the legal activities of the De-
partment of Justice * * *.” Pub. L. No. 95-431, 92 Stat. 1026.
Third, it would have been incongruous for CBO or Congress to
“estimate” the expenditures required to compensate individuals for
the federal government’s abridgement of civil rights laws. Finally,
the amounts involved are likely to be minimal unless one assumes
wholesale violations of civil rights laws by federal government
agencies or officials. In light of all these factors, and given the
other indications that Congress intended § 1988 to apply to the
United States, it is reasonable to conclude that the CBO “estimate”
29a
2. The House Debates
The majority acknowledges that there is support in the
report of the floor debates in the House for the conclusion
is not incompatible with the conclusion that § 1988 authorizes
awards against the federal government.
Much the same explanation can be given to a letter written by
Congressman Rodino, Chairman of the House Judiciary Committee,
introduced during the Senate debate on a proposed amendment to
S. 2278 that would have subjected the United States to broad
liability for tax cases. In the letter Mr. Rodino expressed con-
cern that the amendment could jeopardize Administration support
for the bill and weaken its chances for enactment. He said:
I fear that Senator Goldwater’s amendment—lacking a care-
ful analysis by the Administration, and in light of the Ad-
ministration’s prior position on another IRS attorney fee pro-
vision—will jeopardize the * * * Act * * *. S. 2278 is pres-
ently a very narrow bill intended to enable private enforce-
ment of civil rights acts. It does not involve federal
ing, and has specifically been supported by the Administration
at a hearing before [a] House Subcommittee * * *.
The Committee is presently studying other bills, like Senator
Goldwater’s, which would go far beyond the “American Rule,”
or the “private attorney general” exception to it, and which
may allow recovery against the Federal Government. We hope
to take action next Congress on such bills. However, I fear
that quick action on the Goldwater amendment, which goes far
~ Yong the narrow provisions of S. [2]278, would defeat the
122 Conc. REc. S 16490 (daily ed. Sept. 23, 1976). The majority
cites this letter as evidence that some members of Congress did not
think that S. 2278 applied to the United States. Majority opinion
at 11 n.11. While it is possible to interpret Mr. Rodino’s letter in
this manner, it is equally plausible that it merely reflects his ex-
pectation that the federal government will not often be guilty of
violating civil rights laws and, hence, fee awards against the
United States will be minimal. In this regard it is significant that
Congressman Rodino did not challenge Congressman Railaback’s
statement, made in the House at a time when the debate specifically
focused on the question of the liability of the United States, that
§ 1988 allows recovery of attorneys’ fees from the federal govern-
ment. See text at notes 21-22 infra. Congressman Rodino’s real
concern was with the broad scope of the proposed amendment—
its possible impact on Administration support and therefore on the
bill’s chances for enactment—not the question whether § 1988 allows
recovery against the federal government.
30a
that Section 1988 applies to the United States. In the
only portion of the House debates that directly addressed
the question of the liability of the United States under
Section 1988, Congressman Railsback, the ranking Re-
publican on the House Judiciary Subcommittee which
drafted the House version of the legislation that became
Section 1988 and a strong supporter of the bill, made it
quite clear that it applied to the United States. The col-
loquy between Mr. Railsback and Mr. Quie is very re-
vealing.
Mr. QuIE. * * *
I would like to ask the minority member, the
gentleman from Illinois (Mr. RAILSBACK), a ques-
wis
First, I would like to ask if the U.S. Government
is the plaintiff in a civil rights case against an in-
dividual or corporation, can that individual or cor-
poration as the prevailing party be awarded at-
torney’s fees against the U.S. Government?
* * * *
Mr. RAILSBACK. * * * [A]s I read the bill be-
fore us, my answer would be yes. What we do is
limit the United States from recovering but we do
not limit the rights of other prevailing parties to
recover in the event the United States would be the
plaintiff in an action such as described in the bill.
122 Conc. Rec. H 12163 (daily ed. Oct. 1, 1976) (em-
phasis added). Mr. Railsback further explained:
[A]s I read the bill before us, we limit the right of
the U.S. Government to recover, we do not limit in a
case where the United States would be the plaintiff
suing a defendant, we do not limit the defendant’s
right to recover. Where the judge might decide that
a prevailing defendant should recover, we do not
limit the defendant from recovering from the United
States in civil rights cases.
8la
Id. at 12168-12164 (emphasis added).** Another col-
loquy between Congressman Railsback and Congressman
Quie is also quite plain in its implications.
Mr. Quiz. * * * [I]f the United States is the
plaintiff and loses a civil rights case against a school
district or college, can that school district or college
as the prevailing party be awarded attorneys fees
against the U.S. Government?
Mr. RAILSBACK. * * * [A]gain it would be in
the discretion of the court and nowhere in the bill do
we prevent a school district or college from recover-
ing reasonable attorneys fees, even in a case where
the United States is a party plaintiff.
Id. at 12164 (emphasis added). This is the type of “pre-
cise analyses of statutory phrases by the sponsors of
proposed laws” which courts give significant weight.
21 The Government attempts to explain Congressman Railsback’s
statement as due to confusion caused by the Houses’s “eleventh
hour” consideration of the bill. In addition, it suggests that this
statement was immediately refuted by Congressman Drinan, the
bill’s sponsor, when the latter remarked:
[It] is very clearly limited. If a Federal judge came to that
conclusion it would indeed be a most unusual case. This pro-
vision was inserted into the Senate bill. It did not originate
with the House Judiciary Committee. It does give a remedy
for the most extraordinary case where the defense could
assert and prove to a Federal judge that an IRS case brought
against him was so vexatious and so without merit that he
should get compensation.
Id. at 12164. However, it seems that if there was any confusion
it was on the part of Congressman Drinan. He apparently thought
that Congressman Railsback was referring to the amendment to
the bill, adopted in the Senate, which made the United States liable
to prevailing defendants in certain tax cases. See note 10 supra.
Congressman Railsback was not in fact referring to this provision.
When Congressman Railsback reiterated his understanding that the
bill authorized awards against the United States, his statement
was not challenged by Congressman Rodino who shared the view
that the Act allowed awards against the federal government. See
text at notes 17-18 supra.
32a
S&E Contractors, Inc. v. United States, supra, 406 U.S.
at 13 n.9. I am at a loss to understand how the majority
can maintain, in the face of evidence of this sort, that
the legislative history of the Act does not clearly show
that Congress intended Section 1988 to apply to the
United States.”
V
Only “prevailing parties’ may be awarded attorneys’
fees under Section 1988. The Government concedes that
appellees in Andrulis v. United States, No. 78-2039, are
22 The Government relies on, and the majority cites with ap-
proval, court decisions that have held that § 1988 does not apply
to the United States, Shannon v. HUD, 433 F.Surp. 249 (E.D.
Pa. 1977), aff'd per curiam, 577 F.2d 854 (3d Cir.), cert. denied,
U.S. , 47 U.S. L. WEEK 3391 (Dec. 4, 1978); Southeast
Legal Defense Group [SLDG] v. Adams, 436 F.Supp. 891 (D.
Ore. 1977). The District Courts that decided the Shannon and
SLDG cases did not have the benefit of the Supreme Court’s com-
ment in Hutton v. Finney, 437 U.S. 678 (1978), about the broad
reach of § 1988. The Third Circuit in its brief per curiam did not
address this point. Moreover, these courts appear to have been
under the mistaken impression that the only attorneys’ fees pro-
visions that have been applied to the United States are those that
specifically mention the United States by name. But as the ma-
jority of this court points out, an intention to authorize such awards
may be inferred by “necessary implication” from the context in
which a fee provision is found. See text at notes 11-14 supra;
majority opinion at 6. Finally, the SLDG court misconstrued
§ 1988’s legislative history (the Third Circuit’s per curiam opinion
in Shannon cited SLDG with approval, 577 F.2d at: 856). The
SLDG court noted that the Senate rejected an amendment offered
by Senator Helms which would have made the United States liable
for attorneys’ fees to prevailing parties in every civil case and to
acquitted criminal defendants. It concluded from this that Congress
declined the opportunity to authorize fee awards in civil rights
cases under § 1988. 436 F.Supp. at 893. This conclusion is er-
roneous. Senator Helms was an opponent of the bill and his aim in
offering the amendment was to lessen the bill’s chances for enact-
ment by broadening the Government’s scope of liability. The Ad-
ministration for one was opposed to such broad liability. See House
Hearings, supra note 16, at 177-182 (testimony of Mr. Lee). The
fact that Congress declined to enact such a broad attorneys’ fees
provision can in no way be interpreted as a rejection of the Govern-
ment’s liability under the more limited legislation being considered.
38a
prevailing parties. But it challenges the District Court’s
ruling that appellees in NAACP v. Civiletti, No. 78-1639,
are prevailing parties. The majority does not reach this
issue since it finds that Section 1988 does not apply to the
federal government. Because I find Section 1988 applica-
ble to the United States, I will briefly examine the
Government’s claim.
The case arose out of the fatal shooting of Carnell
Russ, a black man, by a white Arkansas law enforce-
ment officer while Russ was detained for an alleged
traffic violation. The officer was tried for manslaughter
and acquitted by a state court jury. The Justice Depart-
ment reviewed the transcript of the trial and FBI reports
and decided against prosecuting the officer under the
federal criminal civil rights statute, 18 U.S.C. § 242
(1976).
Subsequently, the Russ family and the NAACP brought
suit under the Civil Rights Act, 42 U.S.C. §§ 1981 and
1985 (1976), challenging the adequacy of the federal
investigation and the decision not to prosecute. The nub
of their claim was that the Justice Department illegally
deferred to the state proceedings pursuant to a policy,
established in 1959 by then Attorney General Rogers, of
not initiating a federal prosecution after a state prosecu-
tion for the same act, unless there were compelling rea-
sons. Plaintiffs sought both damages and injunctive
relief.” <
While this suit was pending, then Attorney General
Bell issued in February 1977 a memorandum modifying
23 The District Court characterized the primary objective of
plaintiffs’ claim as “ensur[ing] that the * * * Department of Jus-
tice [does] not fail to vindicate federally protected interests by
not prosecuting local law enforcement officers alleged to have
violated federal criminal civil rights statutes simply because state
or local authorities had already prosecuted those officers for state
or local offenses arising from the same conduct.” Joint Appendix
(JA) 279.
34a
the 1959 policy against dual prosecutions. He announced
a new policy of evaluating “each and every allegation of
a violation of the civil rights laws * * * on its own
merits,” without regard to related state enforcement ac-
tion. Joint Appendix (JA) 277. Both parties agreed
that the Bell memorandum effectively mooted the lawsuit,
and they filed a joint motion to dismiss. In granting
the motion the District Court agreed with the parties
that the Bell memorandum was in accord “with the policy
objectives which underlie this lawsuit * * *.” JA 279,
282-283. Plaintiffs subsequently filed a motion for and
were awarded attorneys’ fees under 42 U.S.C. § 1988
(1976).
The award of attorneys’ fees under Section 1988 is
left to the discretion of the court. As such the District
Court’s judgment should be reversed only for an abuse
of discretion. Morrow v. Dillard, 580 F.2d 1284, 1300
(5th Cir. 1978) ; Sandford v. R. L. Coleman Realty Co.,
573 F.2d 173, 179 (4th Cir. 1978). The District Court
properly identified the test for a prevailing party as
“whether that party has accomplished the objectives of
his litigation. Parker v. Matthews, 411 F. Supp. 1059,
1064 (D.D.C. 1976), aff'd sub nom Parker v. Califano,
561 F.2d 320 (D.C. Cir. 1977).” JA 283.%* The District
Court found that the plaintiffs’ “persistent prosecution
of this action was a strong catalytic factor in the issuance
of the Bell memorandum.” JA 284. It also found that
the plaintiffs had achieved the policy objective set out in
their second amended complaint—publicizing and correct-
ing the Justice Department’s policy of deferring to prior
state civil rights prosecutions. Id.
24It is plain from the legislative history of § 1988 that a liti-
gant may be a prevailing party even though the lawsuit was not
prosecuted to a full trial on the merits. See S. Rep. No. 94-1011,
supra note 7, at 5; H.R. Rep. No. 94-1558, supra note 7, at 7.
35a
To be sure, fathoming the Attorney General’s motives
is not the easiest of tasks. Nevertheless, I conclude, after
a careful review of the record, that the District Court
did not abuse its discretion in awarding attorneys’ fees
to appellees as “prevailing parties.”
VI
The attorneys’ fees provisions of the civil rights stat-
utes were enacted “to encourage individuals injured by
racial discrimination to seek judicial relief * * *.” New-
man V. Piggie Park Enterprises, Inc., 390 U.S. 400, 402
(1968). Courts construing these attorneys’ fees provi-
sions must strive to further this goal. The decision by
the majority of this court will defeat Congress’ purpose
in enacting Section 1988 insofar as suits against the
federal government are concerned. An examination of
the purposes, language, and legislative history of Section
1988 provides ample support for the conclusion that Con-
gress intended to authorize attorneys’ fees awards against
the United States under the Act.
I respectfully dissent.
36a
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
September Term, 1978
D.C. Civil Action No. 75-1317
[Filed Sep. 26, 1979]
No. 78-1639
THE NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE, et al.
v.
BENJAMIN R. CIVILETTI, in his Official Capacity as the
Attorney General of the United States, et al.,
Appellants
D.C. Civil Action No. 77-1936
No. 78-2039
MARILYN W. ANDRULIS, et al.
Wa
UNITED STATES OF AMERICA, et al.,
Appellants
Before: WRIGHT, Chief Judge, WILKEY, Circuit
Judge, and LARSON, Senior District Judge *
* For the District of Minnesota, sitting by designation pursuant
to 28 U.S.C. § 292(d).
37a
ORDER
It is ORDERED, by the Court, sua sponte, that the
Opinion for the court filed in the above captioned cases
on September 26, 1979 be; and it hereby is, amended
as follows:
On page 2, line 5, delete the word “General”.
On page 3, 3rd full paragraph, line 1 change “NAACP
v. Bell” to read “NAACP Vv. Civiletti’.
Per Curiam
For the Court:
/s/ George A. Fisher
GEORGE A. FISHER
Clerk
38a
APPENDIX B
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 77-1936
[Filed Jun. 12, 1978]
MARILYN W. ANDRULIS, and
ANDRULIS RESEARCH CORPORATION,
Plaintiffs,
V.
UNITED STATES OF AMERICA, et al.,
Defendants.
MEMORANDUM
Having considered plaintiffs’ request for attorney’s
fees under the Civil Rights Attorney’s Fees Awards Act
of 1976, 42 U.S.C.A. § 1988 (West Supp. Pamph. 1977),
defendants’ opposition thereto, and the entire record in
the case, the Court is of the opinion that the award re-
quest should be granted. The parties’ final settlement in
favor of plaintiffs qualifies plaintiffs, who earlier had
successfully sought preliminary relief, as “prevailing”
parties within the meaning of the statute. H.R. Rep.
No. 94-1558, 94th Cong., 2d Sess. 7 (1976); see Nation-
wide Building Maintenance, Inc., v. Sampson, 559 F.2d
704, 708-09 (D.C. Cir. 1977). Plaintiffs’ claim of race
and sex discrimination is cognizable under 42 U.S.C.
§§ 1981, 1985(3), 2000d (1970), and thus qualifies as
a “fee claim” under the Act. Although there is no evi-
dence that plaintiffs prevailed at any stage on the dis-
crimination aspect of their lawsuit, they are nonetheless
eligible for an award if the discrimination claim meets
the “substantiality” test enunciated in Hagans v. Lavine,
415 U.S. 528 (1974), and shares with the non-fee claims
a “common nucleus of operative fact,” as defined in
39a
United Mine Workers v. Gibbs, 383 U.S. 715 (1966).
H.R. Rep. No. 94-1558, 94th Cong., 2d Sess. 4 n.7 (1976).
Plaintiffs’ briefs, affidavits, and oral representations made
in support of the temporary restraining order all indicate
that these criteria are met. Therefore, plaintiffs are eli-
gible, subject to the Court’s discretion, to an award of
attorney’s fees for all work done in the case, including
prosecution of the unsuccessful administrative appeal.
Cf. Parker v. Califano, 561 F.2d 320 (D.C. Cir. 1977)
(construing nearly identical language in 42 U.S.C.
§ 2000e-5(k) (1970) to include fees to prevailing party
in Title VII suit for unsuccessful administrative pro-
ceedings).
The attorneys representing plaintiffs in the proceed-
ings before this Court were experienced. Their work
was of high quality, and they made efficient use of their
time. Their hourly charges are reasonable and wholly
consistent with prevailing rates and billing practices in
this community. Considering these factors, the nature
of the case, and all data submitted by affidavit, the
Court finds that a reasonable fee should be awarded in
the following amounts:
Shea and Gardner:
Professional Services $ 17,239.00
Out-of-pocket expenses 1,135.03
$ 18,374.03
Edward J. Smith, Jr.:
Professional Services $ 1,500.00
Total: $ 19,874.03
The Clerk of Court is directed to enter judgment
accordingly.
SO ORDERED.
/s/ Gerhard A. Gesell
United States District Judge
June 12, 1978.
40a
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 77-1936
MARILYN W. ANDRULIS, et al.,
Plaintiffs,
V.
UNITED STATES OF AMERICA, et al.,
Defendants.
ORDER
Upon consideration of the motion of defendants United
States Small Business Administration and A. Vernon
Weaver, in his official capacity, for reconsideration, or
in the alternative, for clarification of the Court’s Memo-
randum Opinion of June 12, 1978, plaintiffs’ opposition
thereto, and the entire record herein, it is by the Court
this 13th day of July, 1978,
ORDERED that none of the individual defendants are
liable for any portion of the fees awarded in the June
13, 1978, Judgment since the action against them was
dismissed, with prejudice, by Order of March 8, 1978,
and it is further
ORDERED that the fee is payable to plaintiffs jointly,
and it is further
ORDERED that defendants’ motion for reconsideration
be, and hereby is, denied, and defendants’ motion for
clarification is granted to the extent indicated above.
/s/ Gerhard A. Gesell
United States District Judge
July 13, 1978. ,
4la
APPENDIX C
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
D.C. Civil No. 75-1317
[Filed Oct. 19, 1979]
No. 78-1639
THE NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE, et al.
Vv.
BENJAMIN R. CIVILETTI, in his Official Capacity as the
Attorney General of the United States, et al.,
Appellants
D.C. Civil No. 77-1936
No. 78-2039
MARILYN W. ANDRULIS, et al.
V.
UNITED STATES OF AMERICA, et al.,
Appellants
Appeals from the United States District Court
for the District of Columbia
Before: WRIGHT, Chief Judge, WILKEY, Circuit Judge,
and LARSON,* Senior District Judge for the
District of Minnesota
* Sitting by designation pursuant to 28 U.S.C. § 292(d).
42a
JUDGMENT
These causes came on to be heard on the records on
appeal from the United States District Court for the
District of Columbia and were argued by counsel. On
consideration thereof, it is
ORDERED AND ADJUDGED, by this Court, that the
judgments of the District Court appealed from in these
causes, insofar as they deal with the award of attorney’s
fees, are hereby reversed, in accordance with the opinion
of this Court filed herein this date.
Per Curiam
For the Court:
/s/ George A. Fisher
GEORGE A. FISHER
Clerk
Date: September 26, 1979
43a
APPENDIX D
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
[Filed Jan. 4, 1980]
No. 78-2039
MARILYN W. ANDRULIS, et al.
v.
UNITED STATES OF AMERICA, et al.,
Appellants
Before: Wright, Chief Judge; Wilkey, Circuit Judge;
and Larson*, Senior Judge, United States
District Court for the District of Minnesota
ORDER
Upon consideration of appellees’ (Andrulis, et al.)
petition for rehearing, and of the memorandum in sup-
port thereof filed by amicus curiae (Women’s Legal De-
fense Fund, Inc.), it is
ORDERED, by the Court, that appellees’ aforesaid
petition for rehearing is denied.
Per Curiam
FOR THE COURT:
/s/ George A. Fisher
GEORGE A. FISHER
Clerk
* Sitting by designation pursuant to 28 U.S.C. § 294(d).
Chief Judge Wright would grant appellees’ petition for rehearing.
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