Petition — Andrulis v. United States
Supreme Court brief1980
Ask Donna
What actually matters in this document.
Text
Supreme Court, U. $.
79-1548 FILED
980
MICHAEL RODAK, JR., CLERK
Supreme Court of ff the United States
OctosErR TERM 1979
Soh Veriinalbtiint
THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED
PEopLE, Mrs. CARNELL Russ, VERNA Russ, RoosEvELT Russ,
ANGELA Russ, Curtis Russ, Syivia Russ, ANTHONY Russ,
Patricia Russ, minors, by their mother and next friend Mrs.
Carnell Russ,
Petitioners,
—vVsa—
BENJAMIN R. Crvitetti, Attorney General of the United States,
Wrmu1am WEssTER, Director of the Federal Bureau of In-
vestigation, JoHN T. Kenuy, Special Agent in Charge, Little
Rock, Arkansas, Raymond Faist, formerly Special Agent in
Charge, Little Rock, Arkansas, and others (unknown),
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
THEODORE BERRY
CHaRLEs E. CARTER
JaMEs I. MEYERSON
1790 Broadway—10th Floor
New York, New York 10019
(212) 245-2100
J. Francis PoHLHAUS
733 15th Street, N.W.
Suite #410
Washington, D.C. 20005
(202) 638-2269
Attorneys for Petitioners
April 1, 1980
TABLE OF CONTENTS
INTIS ELISCN, Tete Oe EE
EN ETI EIS SEW PESTS TINS
Question Presented Oc asmennes
Statutory Provisions Involved ..2......2.....-....-..-s--eccsceteseees
EE TEE SS tl ga ie 5 ee
REASONS FOR GRANTING THE WRIT .......-.-----.cccccccccceeeeececeeeee
1. The decision of the panel majority in the
Circuit Court below conflicts with the “broad
reach” accorded to the Civil Rights Attorneys’
Fees Awards Act of 1976 by this Court in
Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565,
eS Ee
2. The legislative history of 42 U.S.C. Section
1988 provides substantial support for the con-
clusion that Congress intended to authorize
attorneys’ fees awards against the United
EEE
3. The decision of the panel majority below is in
conflict with the decision of the United States
Court of Appeals for the Seventh Circuit in
Hampton v. Hanrahan, 600 F.2d 600, 643-644
(7th Cir. 1979), appeal pending, Second Peti-
tion for Rehearing en banc (United States)
pending (on the propriety of the award of fees
over and against the United States), in which
the Court awarded attorneys’ fees to the Plain-
tiffs-Appellants for their successful efforts on
appeal, per 42 U.S.C. Section 1988 (the Civil
Rights Attorneys’ Fees Awards Act of 1976)....
12
20
PAGE
4. The statutory issue herein (the propriety of
the award of attorneys’ fees over and against
the United States under 42 U.S.C. Section
1988) was improperly addressed by the Cir-
cuit Court below since the matter had not been
raised by the Respondents before the District
Court and since the issue is not jurisdictional
Se GIG ccicecctenincceien ; 21
COMOGATIION nsecnienisicsecininsccincseeibimmenesinnainaniieapeamie 24
Certificate of Bertie icc a 25
Appendix A—
Memorandum Opinion, United States District
Court for the District of Columbia, September
Bh SOT eee ecient la
Appendix B—
Supplemental Memorandum Order, United States
District Court for the District of Columbia, Au-
enet BG, UOTE cscincsiniccterecanae obese adil 18a
Appendix C—
Memorandum, United States District Court for
the District of Columbia, March 31, 1978 (Award-
ing Feds amd Coste): cc tid ina 21a
Appendix D—
Order, United States District Court for the Dis-
trict of Columbia, April 3, 1978 (Awarding Fees
C00 ORE) ho ie a 29a
Appendix E— PAGE
Opinion, United States Court of Appeals for the
District of Columbia Circuit, September 26, 1979
(Consolidated with Andrulis v. United States of
America) a 3la
Appendix F—
Order, United States Court of Appeals for the
District of Columbia Circuit, December 12, 1979
(Degas Teenearing) an ee 69a
Appendix G—
Order, United States Court of Appeals for the
District of Columbia Circuit, December 12, 1979
- (Denying Rehearing en banc) 200... eeececeeecececeeeeee- 7la
Appendix H—
Order, United States Court of Appeals for the
District of Columbia Circuit, January 4, 1980
(Vacating previous Orders) 20... ceceeceseeeeeeeee 73a
Appendix I—
Order, United States Court of Appeals for the
District of Columbia Circuit, January 4, 1980
(Denying Rehearing) aE RABE Wem kos 75a
Appendix J—
Order, United States Court of Appeals for the
District of Columbia Circuit, January 4, 1980
(Denying Rehearing en banc) 0.00... eee ececeeeee 76a
Appendix K—
Supplemental Opinion, United States Court of
Appeals for the Seventh Circuit (Hampton vy.
Hamrahan), December 12, 1979 oe 78a
iv
TasLe oF AUTHORITIES
Cases: PAGE
Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. _
2362, 45 L.Ed.2d 280 (1975) 10n
Alyeska Pipeline Service Co. v. Wilderness Society,
421 U.S. 420, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975)....10, 13
Andrulis v. United States, 609 F.2d 514 (D.C.Cir. 1979)
(No. 78-2039) consolidated with N.A.A.C.P. v. Civi-
lettt (D.C. Cireuit 1979) No. 78-1839) 7
ASARCO v. EPA (D.C.Cir. 1979) (No. 76-1030) con-
solidated with Sierra Club v. EPA (D.C. Cir. 1979)
(No. 76-1037) 11
Brown v. Board of Education, 347 U.S. 483, 74 S.Ct.
686, 98 L.Ed. 873 (1954) 18n
Cannon v. University of Chicago, —— U.S. ——, 99
S.Ct. ——, 60 L.Ed.2d 560 (1979) 19, 20
Christiansburg Garment Co. v. EEOC, 434 U.S. 412,
98 S.Ct. 694, 54 L.Ed.2d 648 (1978) 000... 10, 1in, 13
Culpepper v. Reynolds Metals Co., 421 F.2d 888 (5th
Cir. 1970) lin
Davis v. Murphy, 587 F.2d 362 (7th Cir. 1978) ............ 20
Espimeoza v. Farah Mfg. Ce., 414 U.S. 86, 94 S.Ct. 334,
$8 Ld. 38 367 (2098) - nee 19
Ex parte Public Bank, 278 U.S. 101, 49 S.Ct. 43, 73
L.Ed. 908 (1908) uae a ee 9
Feltz v. Central Nebraska Public Power and Irriga-
tion District, 124 F.2d 578 (8th Cir. 1942) 0. 21, 22
General Electric Company v. Gilbert, 429 U.S. 125, 97
S.Ct. 401, 50 L.Bd.2d 343 (0076) 22... cece ceccecce nes 19
PAGE
Ginsberg & Sens v. Popkin, 285 U.S. 204, 52 S.Ct. 322,
76 L.Ed. 704 (1932) 9
Grubbs v. Butz, 548 F.2d 973 (D.C. Cir. 1976) ................ 10n
Hampton v. Hanrahan, 600 F.2d 600 (7th Cir. 1979),
appeal pending, Second Petition for Rehearing en
banc (United States) pending (on the propriety of
the award of fees over and against the United States) 20
Hills v. Gautreaux, 425 U.S. 284, 96 S.Ct. 1538, 47 L.Ed.
Be EE. « RRR RET CASSIS AUN ee SO 18n
Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.
pRB. 5 SRS Rt es 8 et Sica ie Scale 9 A ee 2 8
Johnson v. Georgia Highway Express, Inc., 488 F.2d
780 TOU CRI eh aS a. ES: lin
McDonald v. Thompson, 305 U.S. 263, 59 S.Ct. 176,
83 L.Ed. 1264 (1938) toe
N.A.A.C.P. v. Bell, 76 F.R.D. 134 (D.D.C, 1977) .......... 7
N.A.A.C.P. v. Bell, 448 F.Supp. 1164 (D.D.C. 1978),
reversed sub nom. N.A.A.C.P. v. Civiletti, 609 F.2d
514 (D.C. Cir. 1980) (consolidated with Andrulis v.
UF ORGEOM TROUNOG) ais cccnecc-secssncssssenscictcatonedgipibirte-biiecnedls 7
N.A.A.C.P. v. Civiletti, 609 F.2d 514 (D. C. Cir. 1979),
consolidated with Andrults v. United States (No. 78-
| SORIA TS Sites 5 eT ERC Be. ELE 9 2858 2B I cer CaN 7,8
N.A.A.C.P. v. Levi, 418 F.Supp. 1109 (D.D.C. 1976) .. 5
National Petroleum Refiners Ass’n v. FTC, 482 F.2d 67 9
(D.C. Cir. 1973), cert. denied 415 U.S. 951, 94 S.Ct.
1475, 39 L.Ed. 2d 567 (1974) ............-....----.... 9
National Resources Defense Council Inc. v. EPA, 484
P26: 1800 (ist OF, 2ele) ee 11
National Treasury Employees Union v. Nixon, 521
PG: SUT (D.C. Gav. TOTS) acisccceenssccccciciensse 21
PAGE
Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400,
88 S.Ct. 964, 19 L.Ed. 2d 1263 (1968) ............ 9-10, 10n, 11n
O’Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45
L.Ed.2d 396 (1975) 18n
Parker v. Matthews, 411 F.Supp. 1059 (D.D.C. 1976),
affirmed sub nom. Parker v. Califano, 561 F.2d 320
CORK Cle: BFF) tik cis ; 10, 23n
Russ v. Ratliff, 538 F.2d 799 (8th Cir. 1976), cert. de-
nied 429 U.S. 1041, 97 S.Ct. 740, 50 L.Ed. 2d 753
(1977) 4n
Russ v. Ratliff, 578 F.2d 221 (8th Cir. 1978), cert. de-
nied 439 U.S. 1003, 99 S.Ct. 614, 58 L.Ed. 2d 679
CHOU. So oe 4n
S&E Contractors, Inc. v. United States, 406 U.S. 1, 92
S.Ct. 1411, 31 L.Ed. 2d 658 (1972) uw... 17
Sterra Club v. EPA (D.C. Cir. 1979) (No. 76-1037)
consolidated with ASARCO v. EPA (D.C. Cir. 1979)
(TER: FRI on eck ccensdschnapnccamenhoennae Labeiiectee Soaueagee 11
Skidmore v. Swift Co., 323 U.S. 134, 65 S.Ct. 161, 89
L.Ed. 124 (1944) 0000... A AON ar kl Sean 19
United Housing Foundation, Inc. v. Forman, 421 U.S.
837, 95 S.Ct. 2051, 44 L.Ed. 2d 621 (1975) ...00.... 19
United States v. King, 395 U.S. 1, 89 S.Ct. 1501, 23
Lie: 26 GB CIR) sk ee Si es 9
United States v. Testan, 424 U.S. 392, 96 S.Ct. 948, 47
L.Ed. 2d 114 (1976) as Cae |
Wilderness Society v. Morton, 479 F.2d 842 (D.C. Cir.
1973), cert. dented 411 U.S. 917, 93 S.Ct. 1550, 36
L.Ed. 2d 309 (1973) ...... Pe a eles 5 Sy oe a 9
Statutes: PAGE
Arkansas Wrongful Death Act, Arkansas Statutes An-
notated Sections 27-906 et seq. 4n
Civil Rights Acts of 1866 and 1871 (42 U.S.C. Sections
1981, 1983 and 1985) ........ 4, 4n
Civil Rights Attorneys’ Fees Awards Act of 1976, Pub-
lic Law 94-559 (42 U.S.C. Section 1988) .................. 3, 23n
Clean Air Act, 42 U.S.C. Section 7604(d) -.: aes
18 U.S.C. Section 242 ae
28 U.S.C. Section 1343(4) .... aes 4
Other References:
Hearings Before the House Judiciary Subcommittee
on Courts, Civil Liberties, and the Administration of
Justice, 94th Cong., Ist Sess. (1975) 17,18
House Report No. 94-1558, 94th Cong., 2d Sess. (1976)
13, 18n
Rehabilitation, Comprehensive Services and Develop-
mental Disabilities Amendments of 1978, Pub.L. 95-
601, Section 505(b) .............................. Pa
Senate Report No. 94-1011, 94th Cong., 2d Sess. (1976)
} 10, 12n, 13
Senate Report No. 95-890, 95th Cong., 2d Sess. (1978).. 14n
122 Cong. Rec. H 12159 .......... 14
TGR: Cas, RIN Te Re heiniecleseiscnenietccialningade. 15, 16
122 Cong. Rec. H 12162 ............. EITM NAN Rea 18
193 Cote... ee: 6:20 nes. 14
122 Cong. Rec. S 16252 ................ sicciintanescicigheda masse ia 12n
122 Cong. Rec. S 16567 ...... 15
122 Cong. Rec. S 16881 .................. 15n
124 Cong. Rec. § 15590 14n
le cia
wht Se nit
a
—
a
i. an oe
Ras LereK hghhe vast
r=
i: i SY:
: ‘fh
RL Peay ; es
, . a P
&
‘ + —
ae" : rs “4
‘ ?
° V. v2
, eye biel tae i
. vt
; ’ .
f ‘ ul,
r }
is
5 ‘ ee «
aa » * eene ¥ Ste
ii oe
<- ‘
r ste Pa. Ce ait 4
. & ee!
Cate + WEIS ae ‘
: — Ae a0 { yo?)
dis > a 15
‘ m '
;
.
F:
; rt Ss
> “#
, = y . ‘
‘ 8,
. 3 hit 3 eee |
nat
- ye oe ply oe ‘ 4
. Ce li é a
. ne. 2 1 ee) /
, "pete Pi
' »
’ m is be ne
k yee ey
5 i oP | ‘ , 4 7 -
. ¥ 5
} a8 eS Pat &
,
In THE
Supreme Court of the United States
Octoser Term 1979
No.
Tue NationaL ASSOCIATION FOR THE ADVANCEMENT
oF CoLorep Propte, et al., .
Petitioners,
Vs.
BensaMin R. Crviettt, etc., et al.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
The Petitioners herein, the National Association for the
Advancement of Colored People, Mrs. Carnell Russ (widow
of the late Carnell Russ), and her several minor children,
respectfully pray that a Writ of Certiorari issue to review
the judgment and opinion of the United States Court of
Appeals for the District of Columbia Circuit entered in this
proceeding on September 26, 1979 (Petition for Rehearing/
Rehearing en banc denied January 4, 1980).
Opinions Below
On September 3, 1976, the United States District Court
for the District of Columbia, the Honorable Barrington D.
Parker presiding, issued a Memorandum and Decision
denying the Respondents’ Motion to Dismiss and to Change
2
Venue. Said Memorandum Opinion is reported at 418
F. Supp. 1109 (D.D.C. 1976) and is set forth as Appendix
A herein. A Supplemental Memorandum Order was issued
by the District Court on August 16, 1977. It is reported
at 76 F.R.D. 134 (D.D.C. 1977) and is set forth herein as
Appendix B. On March 31, 1978, the District Court issued
another Memorandum (discussing the matter of the award
of attorneys’ fees, the focus of concern herein). It is
reported at 448 F. Supp. 1164 (D.D.C. 1978) and is set
forth as Appendix C herein. A related Order was en-
tered on April 3, 1978. It is unreported and is set forth
as Appendix D herein. On September 26,:1979 the United
States Court of Appeals for the District of Columbia
Circuit issued a divided opinion (Wright, C.J., dissenting)
reversing the award of attorneys’ fees previously granted
by the District Court to the Petitioners over and against the
Respondents. It is reported at 609 F.2d 514 (D.C. Cir. 1979)
and is set forth as Appendix E herein. A Petition for
Rehearing/Rehearing en banc was deried on January 4,
1980. The orders in this respect are unreported and are
set forth as Appendices I and J herein.
Jurisdiction
The judgment of the United States Court of Appeals for
the District of Columbia Circuit was entered on September
26,1979. Thereafter, the Petitioners sought a rehearing/re-
hearing en banc which was denied by orders entered on
January 4, 1980. Jurisdiction of this Court is invoked
within ninety (90) days of the foregoing entry pursuant
to 28 U.S.C. Section 1254 (1).
Question Presented
Whether a prevailing civil rights litigant is entitled to
an award of attorneys’ fees, over and against the United
States and employees thereof (in their official capacities),
pursuant to the Civil Rights Attorneys’ Fees Awards Act
of 1976, Public Law 94-559 (42 U.S.C. Section 1988).
Statutory Provisions
This matter involves the Civil Rights Attorneys’ Fees
Awards Act of 1976, Public Law 94-559 (42 U.S.C. See-
tion 1988).
Statement of the Case
The narrowly defined issue raised before this Court
has its genesis in an action which was filed in the United
States District Court for the District of Columbia against
the Attorney General of the United States and the Diree-
tor of the Federal Bureau of Investigation and employees
of that agency and in which the Petitioners, the National
Association for the Advancement of Colored People, Mrs.
Carnell Russ (widow of the late Carnell Russ), and her
several minor children, challenged the failure of the fed-
eral government to undertake an effective investigation
and to seek a federal criminal/civil rights prosecution
of one Charles Lee Ratliff (then a former police officer
for the City of Star City, Arkansas) for the shooting death
of Carnell Russ in 1971, pursuant to 18 U.S.C. Section 242."
1 Carnell Russ, a twenty four year old Black American citizen,
was shot to death by a Star City, Arkansas policeman, Charles
Lee Ratliff, following Russ’ arrest for speeding on Memorial Day
afternoon, May 31, 1971. In a related federal action filed in the
United States District Court for the Eastern District of Arkansas,
Russ’ widow and children sought to recover damages for the alleged
4
The jurisdiction of the District Court was invoked pursuant
to 28 U.S.C. Section 1343(4) in conjunction with, among
others, the Fifth, Thirteenth and Fourteenth Amendments
to the United States Constitution and the Civil Rights Acts
of 1866 and 1871 (42 U.S.C. Sections 1981 and 1985).
After the shooting death and as a consequence of na-
tional exposure and a substantial local media outery (which
resulted in, among other things, a investigation by the
office of then Governor Dale Bumpers), a Lincoln County,
Arkansas grand jury indicted the police officer for the less
aggravated charge of voluntary manslaughter. The officer
was eventually acquitted of the charges in a state court
violation of Russ’ constitutional and civil rights pursuant to the
Civil Rights Act of 1871 (42 U.S.C. Section 1983) and, relying
upon pendent jurisdiction, the Arkansas Wrongful Death Act,
Arkansas Statutes Arnotated Sections 27-906 et seq.
After a trial, an all white jury of twelve persons found no
liability. After the trial court refused to direct a verdict or
otherwise set the verdict aside, the United States Court of Ap-
peals held that, if the Civil Rights Act was to have any mean-
ing, the jury verdict exonerating Charles Lee Ratliff could not
remain, as a matter of law, in view of the aggravated circumstances
of the case and the total lack of justification for Ratliff to use his
gun and to otherwise shoot the deceased between the eyes. See:
Russ v. Ratliff, 538 F.2d 799 (8th Cir. 1976), cert. denied 429 U.S.
1041, 97 S.Ct. 740, 50 L.Ed. 2d 753 (1977). This Court previously
denied review based on the Petition of the widow and minor chil-
dren addressing the issue of the doctrine of respondeat superior
(the responsibility of the City of Star City, Arkansas for the
wrongdoing of its employee in and during the course of his duties
for the City) and other related matters. See also: Russ v. Ratliff,
578 F.2d 221 (8th Cir. 1978), cert. denied 439 U.S. 1003, 99 S.Ct.
614, 58 L.Ed.2d 579 (1978).
Upon remand back to the trial Court, a judgment in the amount
of approximately $288,000.00 plus fees and costs (in the amount
of $60,000.00) was secured from the then absent police officer for
the wrongful, illegal and unconstitutional death. Significantly, the
fees were awarded under the Civil Rights Attorneys’ Fees Awards
Act of 1976 (the Act focused upon herein). After searching for
and locating the absent police officer (in Tupelo, Mississippi), a
deposition was secured reflecting the absence of any assets what-
soever, thereby making the substantial judgment more a fiction then
a reality and collection thereon virtually impossible.
5
by an all white jury which deliberated less than fifteen
minutes. After reviewing the transcript of the man-
slaughter trial proceedings and the Federal Bureau of
Investigation (FBI) reports, the Department of Justice
elected not to prosecute anyone under the federal erim-
inal/civil rights statute, 18 U.S.C. Section 242 (notwith-
standing that, prior to the commencement of the state
criminal proceeding, the United States Attorney for the
Eastern District of Arkansas indicated a belief that a
federal civil rights/criminal violation existed thereby
justifying federal prosecutorial effort).
In essence, the Petitioners claimed, through their effort
in this litigation, “that the Justice Department illegally
deferred to state proceedings, thereby pursuing a policy,
established in 1959 by Attorney General William Rogers,
not to follow a state prosecution with a federal trial for
the same act, absent compelling reasons”; and that, as
applied to civil rights cases generally and specifically to
the instant case, the policy was unreasonable and racially
discriminatory. See: March 31, 1978 District Court Memo-
randum, Appendix C herein.
After withstanding a motion to dismiss and an applica-
tion for change of venue, N.A.A.C.P. v. Levi, 418 F. Supp.
1109 (D.D.C. 1976) (See: Memorandum Opinion, Appen-
dix A herein), discovery was undertaken and the initially
filed Complaint was amended twice (to clarify the claims
as described).
Ultimately, on July 12, 1977 the parties filed a joint
Motion to Dismiss in which it was agreed that:
“}. The primary objective of the plaintiffs in this cause
of action is to ensure that the United States Depart-
ment of Justice does not fail to vindicate federally
protected interests, by prosecuting local law enforce-
ment officers alleged to have violated federal criminal
6
civil rights statutes, simply because state or local au-
thorities have already prosecuted the same officers for
state or local offenses arising from the same conduct.
2. New:,-appointed Attorney General Griffin B. Bell
has recently issued a memorandum * * *, This memo-
randum essentially states that, regardless of prior
state prosecutions for the same offenses, federal prose-
cution is to be instituted whenever necessary to vin-
dicate federally protected interests.
3. The recent memorandum of Attorney General Bell
indicates that the policy of the Department of Justice
is in accord with the objectives of the plaintiffs in this
lawsuit.
4. The plaintiffs and the defendants believe, there-
fore, that no useful purpose would be achieved by the
continued litigation of this lawsuit.” (Joint Appendix
at page 284).
On August 16, 1977, the District Court issued a supple-
mentary Memorandum Order (Appendix B herein) in
which it held that, because of the recently announced policy
of then Attorney General Bell which modified the 1959 non
dual prosecution policy in the civil rights field and which
was encompassed within a document attached to the joint
Motion to Dismiss, the primary objective of the litigation,
which was to ensure that the United States Department
of Justice did not fail to vindicate a federally protected
interest by not prosecuting local law enforcement officers
alleged to have violated federal criminal civil rights stat-
utes simply because state of local authorities had already
prosecuted those officers for state or local offenses arising
out of the same conduct, had been achieved. Accordingly,
the cause was dismissed without prejudice to the Peti-
tioners to reinstitute the law suit should the Respondents
7
fail in their stated obligations and without prejudice to
the Petitioners to seek fees from the Court as a prevail-
ing party. See: N.A.A.C.P. v. Bell, 76 F.R.D. 134 (D.D.C.
1977).
Ultimately, the Petitioners did seek fees; and, on March
31, 1978, the District Court issued a Memorandum finding
that the Petitioners were, in fact and law, prevailing par-
ties and awarding to them the sum of $26,912.25 as fees
and costs (Appendix C herein) under the Civil Rights
Attorneys’ Fees Award Act of 1976 (42 U.S.C. Section
1988). See: N.A.A.C.P. v. Bell, 448 F. Supp. 1164 (D.D.C.
1978). An Order in like regard was entered on April 3,
1978 (Appendix D herein).
Thereafter, the Respondents filed a timely Notice of
Appeal from the Memorandum and Order as described;
and the parties agreed to a stay of execution pending
the outcome of said appeal.
On appeal the instant matter was consolidated with the
ease of Andrulis v. United States (No. 78-2039) which
raised a like issue regarding the propriety of the award-
ing of attorneys’ fees, under the Civil Rights Attorneys’
Fees Awards Act of 1976 (42 U.S.C. Section 1988), against
the United States and employees thereof.
The consolidated matter was argued before the United
States Court of Appeals for the District of Columbia Cir-
cuit on April 23, 1980. On September 26, 1979 the Court
issued a decision, See: N.A.A.C.P. v. Civiletti, 609 F.2d 514
(D.C. Cir. 1979) (consolidated with Andrulis v. United
States), reversing the District Court Orders in the respec-
tive matters insofar as they awarded attorneys’ fees over
and against the United States (under the Civil Rights At-
torneys’ Fees Awards Act of 1976—42 U.S.C. Section 1988).
Senior District Judge Earl R. Larson, sitting by designa-
8
tion from the United States District Court for the District
of Minnesota (pursuant to 28 U.S.C. Section 292(d)),
wrote the majority opinion in which Circuit Judge M.
Richard Wilkey joined. Chief Circuit Judge J. Skelly
Wright dissented (with opinion).
The Petitioners sought a rehearing/rehearing en banc;
but the Petition to the Circuit Court below was denied on
January 4, 1980 (with Chief Judge Wright voting to grant
the Petition for Rehearing, with Circuit Judge Robinson
not participating in the consideration of the en banc Peti-
tion, and with Circuit Judge Wald joining with Chief
Judge Wright in voting to grant the Petition for Rehear-
ing en banc). °*
Reasons for Granting the Writ
1. The decision of the panel majority in the Circuit
Court below conflicts with the “broad reach” accorded the
Civil Rights Attorneys’ Fees Awards Act of 1976 (42 U.S.C.
Section 1988) by this Court in Hutto v. Finney, 437 U.S.
678, 98 S.Ct. 2565, 57 L.Ed. 2d 522 (1978).
In holding that the language of the statute was suffi-
cient to overcome the states’ Eleventh Amendment im-
munity, this 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 page 694. In like respect “the language of the Act
is also broad enough to apply to actions against the fed-
eral government.” N.A.A.C.P. v. Civiletti, supra at 609
F.2d 523 (Wright, C.J., dissenting) ; for, without a specific
exemption applying to it in the Act ttself, there is no basis
9
for denying a prevailing litigant an award of attorneys’
fees over and against the United States.
While “. . . all words of a statute are to be taken into
account and given effect if that can be done consistently
with the plainly disclosed legislative intent”, McDonald v.
Thompson, 305 U.S. 263, 266, 59 S.Ct. 176, 178, 83 L.Ed.
1264 (1938), citing Ginsberg & Sons v. Popkin, 285 U.S.
204, 208, 52 S.Ct. 322, 76 L.Ed. 704 (1932); Ex parte Public
Bank, 278 U.S. 101, 104, 49 S.Ct. 43, 44, 73 L.Ed. 202
(1928). See also: Wilderness Society v. Morton, 479 F.2d
842, 856-857 (D.C. Cir. 1973), cert. denied 411 U.S. 917,
93 S.Ct. 1550, 36 L.Ed. 2d 309 (1973), it is the duty of
a court “. .. to favor an interpretation which would render
the statutory design effective in terms of the policies be-
hind its enactment and to avoid an interpretation which
would make such policies more difficult of fulfillment, par-
ticularly 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, 94 S.Ct. 1475, 39 L.Ed. 2d 567
(1974).
Thus, the question herein, given the broad reach of the
Civil Rights Attorneys’ Fees Awards Act of 1976, is
whether the Act can be so interpreted in a manner favor-
able to an award over and against the United States with-
out doing harm to the statutory design. See: United States
v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 954, 47 L.Ed.
2d 114 (1976), quoting United States v. King, 395 U.S. 1,
4, 89 S.Ct. 1501, 23 L.Ed. 2d 52 (1969), cited and quoted
from in the discussion of Chief Judge Wright below (dis-
senting), supra at 609 F.2d 521.
In order to give full effect and meaning to attorneys’ fees
provisions in other civil rights statutes, this Court has
broadly construed the language therein. See: Newman v.
10
Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964,
19 L.Ed. 2d 1263 (1968)? where this Court stated that, not-
withstanding the statutory language that the District Court
“in its discretion” may award costs to a prevailing party,
a prevailing party should recover attorneys’ fees “unless
special circumstances would render such an award unjust”,
Id. at 390 U.S. 402, inasmuch as the aggrieved party is “in
the role of ‘a private attorney general, vindicating a policy
that Congress considered of the highest priority.’ ” Chris-
tiansburg Garment Co. v. EEOC, 434 U.S. 412, 416, 98 S.Ct.
694, 54 L.Ed. 2d 648 (1978), a Title VII matter citing
Newman v. Piggie Park Enterprises, supra at 390 U.S. 402.
The Civil Rights Attorneys’ Fees Awards Act of 1976,
42 U.S.C. Section 1988, was enacted in specific reaction to
this Court’s decision in Alyeska Pipeline Service Co. v.
Wilderness Society, 421 U.S. 420, 95 S.Ct. 1612, 44 L.Ed.
2d 141 (1975) ; for in the view of Congress Alyeska:
“Created anomalous gaps in our civil rights laws where-
by fees are ... suddenly unavailable in the most funda-
mental 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
Section 1981, which protects similar rights but involves
fewer technical prerequisites to the filing of the
action. . .”
Senate Report No. 94-1011, 94th Cong., 2d Sess. 4 (1976).
2In Newman, supra at 390 U.S. 410, this Court “found that an
... attorney’s fees provision in Title II of the 1964 Civil Rights Act
was intended to ‘encourage individuals injured by racial discrimi-
nation to seek judicial relief’ ”, Grubbs v. Butz, 548 F.2d 973, 975,
footnote 11 (D.C. Cir. 1976). The Piggie Park rationale was held
by this Court to be applicable to Title VII matters in Albemarle
Paper Co. v. Moody, 422 U.S. 405, 415, 95 S.Ct. 2362, 45 L.Ed. 2d
280 (1975).
11
Since the civil rights laws depend heavily on private
enforcement, See: Decision below, supra at 609 F.2d 514,
522-523, Wright, C. J., dissenting citing Parker v. Califano,
561 F.2d 320, 331 (D.C. Cir. 1977),* and since such is par-
ticularly so where, as here, the Respondents are the United
States and employees thereof (including the Attorney Gen-
eral) thereby making the private litigants “attorneys gen-
eral” in the purest sense of the words, to deny the award
herein, based on an extremely narrow interpretation of the
statute, would be counter-productive to the focus and
emphasis placed upon the private litigant by Congress to
enforce the various civil rights laws it has enacted.
Although the Act does not specifically mention liability
of the United States for attorneys fees in civil rights cases,
not every statutory grant for fees, which has eventually
been found to permit the same over and against the United
States, has included specific reference to the United States.
See: National Resources Defense Council Inc. v. EPA, 484
F.2d 1331 (1st Cir. 1973) where the First Circuit authorized
an award of attorneys’ fees over and against the United
States notwithstanding that Clean Air Act (42 U.S.C. Sec-
tion 7604 (d)) referred only to “any party” and did not
make reference by specific language to the liability of the
United States. See also: Sierra Club v. EPA (D.C. Cir.
1979) No. 76-1037 consolidated with-ASARCO v. EPA
(D.C. Cir. 1979) No. 76-1030, both of which are cited below
by Wright, C. J., dissenting, supra at 609 F.2d 524.
>See: Christianburg Garment, Co. v. EEOC, supra at 434 U.S.
418 where this Court most recently acknowledged, in the context of
a Title VII matter, that the private litigant “is the chosen in-
strument of Congress to vindicate a ‘policy considered of the
highest priority’”, citing Newman v. Piggie Park Enterprises,
supra at 390 U.S. 402. See also: Johnson v. Georgia Highway Ex-
press, Inc., 488 F.2d 714, 716 (5th Cir. 1974), quoting Culpepper
v. Reynolds Metus Co., 421 F.2d 888, 891 note 3 (5th Cir. 1970)
and acknowledging the “importance of enforcement of civil rights
legislation.”
12
Thus the language of the Act, itself, as broadly inter-
preted in order to give effect to its substantive purpose,
allows for an award of attorneys’ fees over and against
the United States; and the decision of the panel majority
below to the contrary “will defeat Congress’ purpose in
enacting Section 1988 insofar as suits against the federal
government are concerned.”* Wright, C.J., dissenting,
supra at 609 F.2d 531.
2. The legislative history of 42 Section 1988 provides
substantial support for the conclusion that Congress in-
tended to authorize attorneys’ fees awards against the
United States under the Act.
If something other than the statutory language of the
Act is necessary to satisfy the proposition that an award
of fees over and against the United States is authorized
and permitted under the 1976 Civil Rights Attorneys’ Fees
Awards Act (independent of and/or in conjunction with
‘Senator Kennedy, during the course of debate and discussion
of the proposed Act, stated in this regard:
“It is a fundamental axiom of law that where there is a
right the law should provide a remedy. Yet, without a pro-
vision to permit awards of attorneys’ fees to successful par-
ties, the rights secured by those civil rights laws covered by
this act are hollow rights indeed. Enactment of this legisla-
tion would do much to assure all the citizens of this Nation
that the words ‘equal protection of law’ mean what they say,
and that Congress firmly intends that all our civil rights laws
be vigorously enforced.”
122 Cong.Rec. 816252. See also: Senate Report No. 94-1011, 94th
Cong., 2d Sess. 3 (1976), quoting the words of the late Justice
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 [93 S.Ct. 1943, 36 L.Ed.2d 702] (1973), quoting 462
F.2d 777, 780-81 (2d Cir. 1972).”
13
the broad interpretation of the same, per this Court’s rule
of statutory analysis), the legislative history can leave no
doubt about the same.
While the legislative history, as encompassed within the
Congressional debates, appears to be “sparse” (See: |
Christianburg Garment Co. v. EEOC, supra at 434 US.
420 where this Court noted that the sparcity of legislative
history in the context of the attorneys’ fees provisions
within the Title VII legislation), nevertheless the language
of the hearings and debates, which do exist on the subject,
overwhelmingly favors the interpretation that the Act was
intended to subject the United States to liability for at-
torneys’ fees in the same manner as other litigants.
Both the House and Senate Reports stressed as the pur-
pose of the legislation the need to bring civil rights laws
into uniformity. The Senate Report (Senate Report No.
94-1011) gave as the purpose of the legislation:
“The purpose of this amendment is to remedy anomalous
gaps in our civil rights laws created by the United
States Supreme Court’s recent decision in Alyeska
Pipeline Service Co. v. Wilderness Society, 421 U.S.
240 (1975), and to achieve consistency in our civil
rights laws.” (Emphasis added.)
Likewise the House Report (House Report No. 94-1558)
stated:
“H.R. 15460, the Civil Rights Attorneys’ Fees Award
Act of 1976, authorized the courts to award reasonable
attorney fees to the prevailing party in suits instituted
under certain civil rights acts. Under existing law,
some civil rights statutes contain counsel fee provi-
sions, while others do not. In order to achieve unifor-
mity in the remedies provided by Federal laws guar-
14
anteeing civil and constitutional rights, it is necessary
to add an attorney fee authorization to those civil
rights acts which do not presently contain such a
provision.” (Emphasis added).
In opening the Senate floor debates, Senator Hugh Scott,
speaking in support of the bill, articulated the view that
the Act would “assure that attorneys’ fees will be avail-
able in suits brought under the reconstruction-era civil
rights laws, ... in the same fashion and to the same extent
as the statute presently provides in cases brought under
Title VII of the 1964 Civil Rights Act.” 122 Cong. Rec.
$16251. (Emphasis added). Title VII authorizes recovery
of attorneys’ fees from the United States.
On the House side, the bill’s floor manager, Congress-
man Drinan, in like vein, articulated the position that “the
language of S. 2278 tracks the wording of attorney fee
provisions in other civil rights statutes, such as section
706 (k) of Title VII—employment—of the Civil Rights Act
of 1964.” 122 Cong. Rec. H 12159.°
Significantly, Senator Allén, who was a_ principal
opponent of the bill and who lead a filibuster against it,
sponsored an amendment which would have limited the
liability of the United States to situations in which an of-
ficial of the federal government “has acted in a contuma-
° Significantly, Congress recently enacted Section 505(b) of the
Rehabilitation, Comprehensive Services and Development Dis-
abilities Amendments of 1978, Pub. L. 95-601, an attorneys’ fees
provision whose language is virtually the same as that of Section
1988 and which, in the words of its principal sponsor, Senator
Cranston, “parallels the Civil Rights Attorneys’ Fees Awards Act
of 1976. . .” 124 Cong. Ree. S 15590. The Sponsor made it clear
that the attorneys’ fee provision was designed to “vindicate rights
against the federal government.”’ Wright, C.J., supra at 609 F.2d
525, citing 124 Cong. Rec. S 15590; Senate Report No. 95-890,
95th Cong., 2d Sess. 19 (1978).
15
cious or vexatious manner.” 122 Cong. Ree. S$ 16567. The
Amendment was rejected.‘
The colloquy between Congressman Quie and Congress-
man Railsback, who was the ranking Republican on the
House Judiciary Subcommittee (which drafted the House
version of the legislation which eventually became Section
1988) and who was a strong supporter of the bill, is in-
structive and makes it quite clear that the Act did apply
to the United States.
“Mr. Quie. I would like to ask the minority member,
the gentleman from Illinois [Mr. Railsback], a ques-
tion.
First I would like to ask if the U.S. Government is the
plaintiff in a civil rights case against an individual or
corporation,:can that individual or corporation as the
prevailing party be awarded attorney’s fees against
the U.S. Government?
Mr. Railsback. [A]s I read the bill before 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 Cong. Rec. H 12163. Continuing, Mr. Railsback stated:
“Mr. Railback. [A1}s I read the bill before us, we limit
the right of the U.S. Government to recover, we do
;. t limit it in a case where the United States would be
the plaintiff suing a defendant, we do not limit the
* Senator William Scott, another opponent of the bill, also of-
fered an amendment which would have denied recovery against
the United States and state and local governments. That amend-
ment was defeated as well. 122 Cong. Rec. S 16881.
16
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 im. civil rights cases.”
Id, at H 12163-12164 (Emphasis added).
Still further evidence of the Congressional intent in this
respect is reflected in another colloquy between Congress-
man Railsback and Congressman Qui:
“... [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. Govern-
ment?
Mr. Railsback . . . [A]gain it would be in the discre-
tion of the court and nowhere in the bill do we prevent
a school district or college from recovering reasonable
attorneys’ fees, even im a case where the United States
is a party plaintiff.”
Id. at H 12164 (Emphasis added).
Speaking in absolutely clear terms, Congressman Drinan,
in introducing H.R. 9552, which became the House version
of the legislation and which is virtually identical to Section
1988 as it passed Congress, stated:
“[U]nder these bills the Federal government could
never recover its attorney fees. On the other hand, it
would be required to pay the counsel fees of a private
prevailing party, which is prohibited generally by cur-
rent 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, how-
ever, since it now states: ‘Except as otherwise specif-
ically provided by statute...”
17
Awarding of Attorneys’ Fees, Hearings Before the House
Judiciary Subcommittee on Courts, Civil Liberties, and
the Administration of Justice, 94th Cong., 1st Sess. 53
(1975) (Emphasis added).
While this Court has recognized the limitations of testi-
mony before committee hearings as a means to statutory
construction, See: S & E Contractors, Inc. v. United States,
406 U.S. 1, 13, note 9, 92 S.Ct. 1411, 31 L.Ed. 2d 658 (1972),
nevertheless weight should be accorded to the same where,
as here, chief sponsors and proponents of the bill offer
testimony which consists “of precise analyses of statutory
phrases ... of the proposed laws.” Id.
Most significantly, the position of the United States, as
articulated in the Circuit Court below (for the first time),
is absolutely inconsistent with its view of the scope of the
Act when it was being proposed and debated, prior to its
enactment. At hearings relative thereto, the United States
Department of Justice, by Assistant Attorney General Rex
R. Lee, acknowledged that the Act would authorize fee
awards against the federal government. In supporting the
same, Mr. Lee stated:
“H.R. 8220 would authorize the awarding of attorney’s
fees to a prevailing plaintiff in actions brought under
certain civil rights statutes. Actions under the statutes
involved have been brought against both Federal offi-
cials and private individuals.
H.R. 9552 authorizes the awarding of attorneys’ fees
as a matter of discretion in certain civil rights litiga-
tion. The prevailing party, other than the United
States, may recover attorneys’ fees.
Thus, H.R. 9552 applies to all plaintiffs or defendants
except to the United States to the extent that it is a
prevailing party.”
18
Awarding of Attorneys’ Fees, Hearing Before the House
Judiciary Subcommittee on Courts, Civil Liberties and Ad-
ministration of Justice, 94th Cong., Ist Sess. 176-177 (1975)
(Emphasis added).
Mr. Lee went on to state:
“{The Department of Justice expressed] 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
Judiciary Subcommittee on Courts, Civil Liberties and the
Administration of Justice, 94th Cong., 1st Sess. 179 (1975).
Both the House Report and the floor debates referred to
Mr. Lee as a principal source of interpretation for Section
1988. See: House Report No. 94-1558; 122 Cong. Rec.
H12162." This Court has acknowledged that the contempo-
raneous views and interpretations of laws by the agencies
entrusted with their enforcement “constitute a body of ex-
perience and informed judgment to which courts and liti-
‘Among other cases referred to in the House Report, citing
various governmental defendants in civil rights actions over and
against whom attorneys’ fees could be awarded because of the sub-
stantiality of the common treasury (including therein taxes paid
by the very civil rights litigants), was Hills v. Gautreauz, 425 U.S.
284, 96 S.Ct. 1538, 47 L.Ed.2d 792 (1976), a Title VI claim
brought against the federal government. House Report No. 94-
1558, 94th Cong., 2d Sess. 7 (1976).
In addition to Hills the House carefully set forth cases reflecting
city and county officials and agencies and state officials and agen-
cies. See: Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686,
98 L.Ed. 873 (1954) and O’Connor v. Donaldson, 422 U.S. 563, 95
S.Ct. 2486, 45 L.Ed.2d 396 (1975), respectively. Thus it is appar-
ent the House clearly envisioned federal defendants as appropriate
“persons” over and against whom civil rights actions could be
brought and from whom fees could be secured.
19
gants may properly resort for guidance”. Skidmore v.
Swift Co., 323 U.S. 134, 65 S.Ct. 161, 164, 89 L.Ed. 124
(1944). Such weight does not, however, attach when the
interpretation given comes at a time subsequent to the
enactment of the legislation in focus and when it is incon-
sistent with the initial views as expressed by the agency.
See: General Electric Company v. Gilbert, 429 U.S. 125,
142-143, 97 S.Ct. 401, 411, 50 L.Ed. 2d 343 (1976). See also:
United Housing Foundation, Inc. v. Forman, 421 U.S. 837,
858-859 note 25, 95 S.Ct. 2051, 44 L.Ed. 621 (1975);
Espinoza v. Farah Mfg. Co., 414 U.S. 86, 92-96, 94 S.Ct.
334, 38 L.Ed. 287 (1973), both of which are cited in Gilbert,
supra at 429 U.S. 143.
It is significant that, in the District Court, the United
States, consistent with the proposition articulated by As-
sistant Attorney General Lee at the pre-enactment hear-
ings on the legislation, did not raise the issue of the pro-
priety of an award against the United States under the
Act thereby confirming and acceding to its initially promul-
gated and articulated view. It was only on appeal and after
the District Court had issued an award that the United
States modified the original interpretation which it placed
on the Act (vis & vis an award of fees over and against
the federal government). In such light, the latter interpre-
tation, being inconsistent with the United States’ position,
initially, should be rejected, as Wright, C.J. did in dissent
below.
In short, “not only the words and history of [the Act]
but also its subject matter and the underlying purposes,
counsel . . .”, Cannon v. University of Chicago, —— US.
—., 99 S.Ct. ——, 60 L.Ed. 2d 560, 585 (1979), an inter-
pretation favoring the award of attorneys’ fees over and
against the United States, particularly in view of the fact
that the failure of Congress not to specifically include the
United States by reference® “is not inconsistent with an
20
intent on its part to have such a remedy available to the
persons benfited by the legislation.” See: Cannon v. Uni-
versity of Chicago, supra at 60 L.Ed. 2d 587.
Thus, the decision of the panel majority below is contrary
to the purposes, language and legislative history of the Act.
3. The decision of the panel majority below is in conflict
with the decision of the United States Court of Appeals
for the Seventh Circuit in Hampton v. Hanrahan, 600 F.2d
600, 643-644 (7th Cir. 1979), appeal pending, in which the
Court awarded attorneys’ fees to the Plaintiffs-Appellants
therein for their successful efforts on appeal, per 42 U.S.C.
Section 1988 (the Civil Rights Attorneys’ Fees Awards
Act of 1976), reaffirming therein the position that “... the
Act permits a prevailing plaintiff on appeal to receive fees
for appellate work.” Id. at 600 F.2d 643, citing Davis v.
Murphy, 587 F.2d 362 (7th Cir. 1978).
In a subsequent opinion, unpublished (set forth herein
as Appendix K), Second Petition for Rehearing en banc
(United States) pending (on the propriety of the award
of fees over and against the United States), the Court
made it clear that the award of fees was to be apportioned
among the state and local Defendants-Appellees and the
federal Defendants-Appellees (including several Justice
Department officials and agents and employees of the
Federal Bureau of Investigation). Moreover, it specified
* Speaking in this respect, Wright, C.J., dissenting, stated (supra
at 609 F.2d 525) :
“That Congress omitted the language specifically referring to
the liability of the United States for attorneys’ fees is not sig-
nificant. 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.”
(Footnote omitted).
21
that said fees were to be collected from said persons in their
official capacities (rather than as individuals), thus requir-
ing the fees to come from the treasury of the United States
(to the extent that said fees were assessed over and against
those officials) rather than from the pockets of the indi-
vidual federal officials/employees.
Thus, it is apparent that a division does exist among
and between the Circuit Courts of Appeals as a consequence
of the decision of the panel majority below (over the dis-
sent of Wright, C.J.). Accordingly, because of the impli-
cation and importance of the issue, this Court should enter-
tain the Petition herein and address the same.
4. The statutory issue herein (the propriety of the award
of attorneys’ fees over and against the United States under
42 U.S.C. Section 1988) was improperly addressed by the
Circuit Court below since the matter had not been raised
by the Respondents before the District Court and since the
issue is not jurisdictional in nature. As such, the Court
below should not have addressed the same and, in doing
so over the objection of the Petitioners, it was and is in
conflict with the decision of the United States Court of
Appeals for the Eighth Circuit in Feltz v. Central Nebraska
Public Power and Irrigation District, 124 F.2d 578 (8th
Cir. 1942) and with its own decision in National Treasury
Employees Union v. Nixon, 521 F.2d 317 (D.C. Cir. 1975).
In National Treasury Employees Union v. Nixon, supra
at 521 F.2d 317, the Court held that, where the District
Court had jurisdiction over the subject matter, it had
jurisdiction to determine whether attorneys’ fees could be
allowed. It stated:
“This argument confuses subject matter jurisdiction
with the substantive law governing appellant’s appli-
cation. The District Court has the power to entertain
the application for attorneys’ fees and expenses be-
22
cause it has subject matter jurisdiction over the main
claim. The award of attorneys’ fees is not a separate
claim for relief requiring an independent base, but
rather is an additional equitable remedy which under
appropriate conditions can be awarded to the prevail-
ing party.”
In Feltz a condemnation action was brought by a public
power and irrigation district under the Federal Power
Act. The landowners involved sought to raise the issue
of jurisdiction in the Court of Appeals, articulating the
position that the power district was not authorized under
the Act to take the land.
The court held that, while the issue of jurisdiction may
be raised at any time, such an issue was not involved in
the case. Whether the power district was authorized to
use the Federal Power Act for condemnation purpogés was
held to be a matter of statutory interpretation, which was
waived by the appellant’s failure to raise it in the District
Court.
A similar situation exists herein. The District Court
had jurisdiction to interpret the Civil Rights Attorneys’
Fees Awards Act. As the District Court noted in its opin-
ion awarding fees, the United States did not contest the
court’s jurisdiction to do so:
“Defendants do not context the validity of applying
this act retroactively or to obtain an award from the
government, See S. Rep. No. 04-1011, 94th Con., 2d
Sess. 4-5 (1976). They do context plaintiffs’ status as
prevailing parties under the statutory scheme... .”
See: Appendix C herein (Emphasis added).
Thus, as in Feltz and Nizon respectively, the issue ad-
dressed by the Court below (whether the Act permitted
23
a recovery over and against the United States) was sub-
stantive rather than jurisdictional;® and, accordingly, it
was improperly addressed by the Court since the Respon-
dents did not contest the propriety of an award under the
Act in the District Court below (as contrasted to the pro-
priety of the finding that the Petitioners were prevailing
parties),’® thereby making the same the subject of review
on appeal.
® As one of the issues (questions) presented by the Respondents
in the Court below, they proposed that the Court consider “whether
the district court had jurisdiction to award fees in this case, pur-
suant to the Civil Rights Attorneys’ Fees Awards Act of 1976, 42
U.S.C. 1988.” While such was an ingenious method of framing
the issue, in light of the jurisdictional concession by the Respon-
dents in the District, such does not hold water otherwise since the
issue is not jurisdictional but substantive (by way of statutory
interpretation ).
10 As discussed above, Petitioners believe that the only issue
properly before the Appeals Court below was whether they were
prevailing parties in the District Court so as to permit an award
of attorneys’ fees under the 1976 Act. Although the panel majority
below did not address that issue, Chief Judge Wright, in his dis-
senting opinion, did discuss the same and concluded that, because
the District Court had “properly identified the test for a prevail-
ing party” (to wit: “Whether the party had accomplished the
objectives of his litigation . . .”, citing therein Parker v. Matthews,
411 F.Supp. 1059, 1064 (D.D.C. 1976), affirmed sub nom. Parker
v. Califano, 561 F.2d 320 (D.C. Cir. 1977) and because it had not
abused its discretion in that regard, the prevailing party finding
should not be reversed. See: Wright, C.J., dissenting, supra at
609 F.2d 530-531. Petitioners agree with Judge Wright’s analysis
in that regard and adopt the same for the purposes of framing
the issue which they raise for review herein.
24
CONCLUSION
For the foregoing reasons, the Petition herein should be
granted.
Respectfully submitted,
THEODORE BERRY
Cuartes E. Carter
JaMEs I, Meyerson
1790 Broadway-10th Floor
New York, New York 10019
(212) 245-2100
J. Francis PontHavus
733 15th Street, N.W.
Suite #410
Washington, D.C. 20005
(202) 638-2269
Attorneys for Petitioners
By:
April 1, 1980
25
Certificate of Service
James I. Meyerson, one of the attorneys for the Peti-
tioners, certifies that on the 2nd day of April, 1980, I did
serve three copies of the foregoing Petition upon the
attorneys for the Respondents by mailing the same, post-
age prepaid, first class, as follows: Drew Days, Esq.,
Assistant Attorney General, Walter W. Barnett, Esq.,
Cynthia L. Attwood Esq., Attorneys, Department of Jus-
tice, Washington, D.C. 20530.
Respectfully submitted,
James I. Meyerson
1790 Broadway-10th Floor
New York, New York 10019
(212) 245-2100
Attorney for Petitioners
Appendix
Appendix A
(Memorandum Opinion)
UNITED STATES DISTRICT COURT
For THe District or CoLumsBra
Civil Action No. 75-1317
NaTIoNaL ASSOCIATION FOR THE
ADVANCEMENT OF CoLoRED Peroptg, et al.,
Plaintiffs,
v.
Epwarp Levi, et al.,
Defendants.
APPEARANCES
NaTHANIEL R. Jones, Esquire
Gerorce BE. Harrston, Esquire
JaMEs I. Meyerson, Esquire
New York, New York 10019
J. Francis Pontuaus, Esquire
Washington, D. C. 20005
Georce Howarp, Jr., Esquire
Pine Bluff, Arkansas 71601
Attorneys for Plaintiffs Pa
Karu J. Su.serr
United States Attorney
la
2a
Appendix A
J. Stan.tey Porrincer
Assistant Attorney General
Wim L. Garpner, Esquire
StePHEN Horn, Esquire
United States Department of Justice
Washington, D. C.
Attorneys for Defendants
Before
Barrineton D. Parker
Unrrep States District Jupcr
Decided: September 3, 1976
FILeD
Sep 3 1976
JaMEs F. Davey, Clerk
MEMORANDUM OPINION
Barrington D. Parker, District Judge:
This proceeding presents troublesome questions of stand-
ing and prosecutorial discretion. They arise in connection
with a citizen’s death from gunshot wounds while in eus-
tody of Arkansas law enforcement officers. The plaintiffs
allege that Federal officials failed to conduct an affirmative
and exhaustive investigation of the incident and that they
acted arbitrarily, capriciously and in a racially discrimina-
tory manner to determine if the citizen’s constitutionally
guaranteed and other rights provided by Federal law had
been violated.
At this point the defendants present two challenges to
the litigation: a motion for a change of venue and a motion
3a
Appendia A
to dismiss. For the reasons detailed below, the Court con-
cludes that these initial challenges should be denied and
that this proceeding should advance to trial.
The plaintiffs are the National Association for the Ad-
vancement of Colored People (NAACP), Mrs. Clementine
Russ, widow of Carnell Russ and the Russ minor children."
The defendants are Edward Levi, the Attorney General
of the United States, Clarence Kelley, the Director of the
Federal Bureau of Investigation (FBI or Bureau) and
certain FBI agents assigned to the Little Rock, Arkansas
office.
Jurisdiction is asserted under 28 U.S.C. §1343(4) to-
gether with the Fifth, Thirteenth and Fourteenth Amend-
ments and the Civil Rights Acts (42 U.S.C. $§1981 and
1985). Also, 28 U.S.C. §1361 in conjunction with 18 U.S.C.
§242, 28 U.S.C. §509 and the Civil Rights Acts (42 U.S.C.
§1981) are invoked as grounds for jurisdiction.
In an amended complaint seeking declaratory, injunctive
and other equitable relief, plaintiffs assert violations of
the constitutional and civil rights of Carnell Russ, deceased,
a citizen of Arkansas. They seek this Court’s aid compell-
ing the defendants to undertake a thorough and meaning-
ful investigation into his fatal shooting. The shooting took
place at the Lincoln County Courthouse, Star City, Arkan-
sas, while Russ was in the custody of Arkansas law en-
forcement officers.
A motion to transfer the proceedings to the Eastern
District of Arkansas has been filed by the defendants.
They also move to dismiss the complaint and assert: that
the plaintiffs lack standing to bring this suit; that they
1 Mrs. Russ brings suit as mother and next friend of her minor
children.
ta
Appendix A
have failed to state a claim upon which relief can be
granted; that the Court lacks jurisdiction over the subject
matter of the complaint, and; that the doctrine of sovereign
immunity shields the defendants from this litigation.
FactuaL Backarounp’®
On May 31, 1971, Carnell Russ, a 24 year old black, while
operating his motor vehicle on an Arkansas highway was
arrested for an alleged speeding violation by Jerry Mac
Green, a white state trooper. Russ was accompanied by
his wife, their minor children and an adult cousin, The
trooper directed him to the County Courthouse. Russ com-
plied and upon arrival, parked his vehicle and was escorted
into the Courthouse by the arresting trooper and two other
white law enforcement officers, Charles Ratliff and Norman
Draper.* Minutes later, Russ returned to the vehicle where
his family awaited. He requested and received from his
wife sufficient money to post the necessary collateral. He
then joined the three officers who were close by observing
his actions. The four retraced their steps with Russ again
in custody.
A short time thereafter, Mrs. Russ first observed two of
the officers leave and minutes later an ambulance depart
from the rear of the Courthouse area where her husband
had just entered in the officers’ custody. She later learned
that Mr. Russ, while under detention, had been shot in the
center of his forehead by Ratliff and then transported to a
‘ hospital. Green and Draper were the sole witnesses to the
* The complaint, affidavits, exhibits and memoranda filed by the
plaintiffs in this proceeding are the source of the factual state-
ment. At this point they are undisputed.
* Norman Draper was in a “trainee” status.
ee
5a
Appendia A
shooting. Her husband died from the gunshot wound with-
in hours.
The Governor of Arkansas ordered an immediate investi-
gation of the incident by the State Police. In less than
one week Ratliff was indicted for voluntary manslaughter.
Plaintiffs allege that minutes or transcripts of the grand
jury proceedings were not maintained. Ratliff was tried
in January 1972. The jurors’ deliberations consumed less
than 15 minutes and in that period they selected a fore-
person, reviewed and considered the evidence and returned
a verdict of “not guilty”. Ratliff’s weapon was not offered
in evidence during his criminal trial. There was no evi-
dence or testimony that Carnell Russ possessed or had
access to a weapon while in custody. Indeed, the testimony
was to the contrary.
The shooting triggered the attention of both the national
and Arkansas branches of the NAACP. Immediately, those
organizations embarked upon a campaign importuning the
Justice Department to undertake an independent investiga-
tion to determine whether Federal laws had been violated
in any manner. Several months following the acquittal of
the state trooper, Assistant Attorney General, David L.
Norman of the Civil Rights Division of the Justice Depart-
ment wrote to the General Counsel of the NAACP
After careful examination of the [Ratliff trial] tran-
script, as well as materials previously submitted by
the Federal Bureau of Investigation, this Division has
determined that this incident lacks prosecutive merit
under federal criminal civil rights statutes. Therefore,
we are closing our file.‘
‘ Undated letter attached as an exhibit to the complaint. Plain-
tiffs refer to this letter as “dated March 1972.”
6a
Appendiaz A
The plaintiffs allege that subsequent events and dis-
closures led them to believe that the Department’s in-
vestigation was superficial, less than thorough and mean-
ingless. The substance of their claim is that the FBI
abdicated its responsibility and in effect applied a “white-
wash” to the incident; that the Bureau deferred to and
relied principally upon a report of the Criminal Investiga-
tion Division of the Arkansas State Police; and that the
policy to rely solely on state and local criminal justice
system for vindication of a citizen’s rights was unreason-
able, improper, arbitrary and without a rational basis.
Fairly read, the complaint alleges that the defendants acted
in an arbitrary, capricious and discriminatory manner by
failing to investigate the Russ shooting to determine if his
constitutional rights and Federal statutes had been violated
by Arkansas law enforcement authorities.
Tue VENvVE MorTion
The defendants urge the transfer of this litigation to the
Eastern District of Arkansas to accommodate the parties
and witnesses and to serve the interests of justice. They
contend that the majority of the parties are Arkansas
residents; most of the witnesses likely to be called are
residents of that State; that most of the significant and
underlying events, the death, the grand jury investigation
of the death, and the subsequent indictment and trial of
the state troopers, all took place in Arkansas. Further,
they point out that several related and companion civil
cases stemming from Russ’ death were filed, considered and
tried in the Eastern District of Arkansas.®
° The Russ plainiffs filed a civil suit in the District Court for the
Eastern District of Arkansas pursuant to 42 U.S.C. §1983 and
7a
Appendiz A
In turn, the plaintiffs argue that the central issue in this
litigation involves a denial and deprivation of constitu-
tional and civil rights and the focus is on the official actions
and decisions of a Federal government agency—the De-
partment of Justice and specifically, the Office of the
Attorney General and the Federal Bureau of Investigation.
The administrators and officials responsible for the final
agency action are headquartered in this jurisdiction. The
data, reports and memoranda relating to the investigation
conducted by the FBI and the Justice Department, if not
located here, could certainly be made available with a
minimum of delay and difficulty. The final decision of the
Department of Justice, closing the books on this matter
was made in Washington, D. C.
While all of the data and evidence supporting the final
decision were conceivably accumulated in Arkansas, a final
review and determination was made by Federal officials
stationed in this jurisdiction. See: Starnes v. McGuire,
512 F.2d 918 (D.C. Cir. 1974). Nor is there any suggestion
in defendants’ memorandum that an agency representative
or witness would be harassed, inconvenienced, disadvan-
taged or that any unusual and unnecessary problems would
arise in the absence of a transfer. Indeed, it would appear
that the Russ plaintiffs would be more adversely affected
than the defendants.
the Arkansas Wrongful Death Act, seeking damages from the three
officers and various officials of Star City, Arkansas for the death
of Carnell Russ. The trial court directed a verdict dismissing the
claims against all defendants except officers Green and Ratliff.
The jury returned a finding in favor of the two officers. An appeal
was then taken to the Eighth Circuit and in a recent unanimous
opinion, that court reversed and remanded the case for a new trial
against Ratliff and otherwise affirmed the judgment of the trial
court. Carnell Russ v. Charles Lee Ratliff, No. 76-1007 (8th Cir.,
July 27, 1976).
8a
Appendia A
The plaintiffs have made what is presumed to be a con-
sidered and deliberate choice of forums. Their choice is
entitled to serious consideration and should not be dis-
turbed absent a strong showing that their chosen forum
is completely inappropriate and inconvenient, a matter
which this Court must resolve by an exercise of its dis-
cretion. Norwood v. Kirkpatrick, 349 U.S. 29, 31 (1955);
Hoffman v. Goberman, 420 F.2d 423, 426-428 (3rd Cir.
1970). The defendants have not made such a showing.
Their motion is denied.
Tue Morion To Dismiss
The Question of Standing
For more than the last 50 years the NAACP has par-
ticipated as party plaintiff, as intervenor and as amicus
curtae in a variety and ever increasing amount of civil
rights litigation. On behalf of its membership and black
minorities it has achieved a reputation in both state and
Federal courts as an organization with a special interest
in the preservation and protection of their civil and con-
stitutional rights. In 1963, Justice William J. Brennan
recognized the standing of the NAACP to assert the rights
of its members and remarked that the organization en-
gages in litigation
.. + [as] a means for achieving the lawful objectives
of equality of treatment by all government, federal,
state and local, for the members of the Negro com-
munity in this country.*
‘NAACP v. Button, 371 U.S. 415 at 429 (1963).
9a
Appendia A
... the litigation it assists, while serving to vindicate
the legal rights of members of the American Negro
community, at the same time and perhaps more im-
portantly, makes possible the distinctive contribution
of a minority group to the ideas and beliefs of our
society.’
That same observation is true today and as the plaintiffs
have pointed out, the standing of this organization to sue
and represent its members and nonmembers in the context
of its objectives has never been denied in any reported
judicial opinion.*
The NAACP’s interest in the issues presented in this
litigation is not abstract or general but rather it is real
and direct. In their pleadings and affidavits the plaintiffs
point to the past and continuing efforts of the organization
to secure the civil rights of its memberships and others
under Federal law against the arbitrary and discrimina-
tory acts of government officials. Likewise, the Russ widow
and children have a direct, significant and substantial
interest. Accepting as true, as we must, the plaintiffs’ al-
legations detailing the highly suspect circumstances of
Mr. Russ’ death, the government’s investigation of the
incident to determine if there had been a violation of
Federal laws, was half-hearted at best. The family seeks
a vindication of the deceased’s rights and requests equita-
ble relief against named Federal officials.
The plaintiffs have an interest in free access to and an
even-handed application of the legal and criminal justice
"Id. at 431.
® Memorandum in Opposition to the Motion of the Defendants
for a Change of Venue and to Dismiss the Action Herein, p. 49
filed December 29, 1975.
10a
Appendix A
procedures of the Federal Government. They allege that
they were injured because of the defendants’ failure to
undertake a sincere and meaningful investigation of Car-
nell Russ’ death. This failure, they claim, was racially dis-
criminatory and had the effect of denying to him, his
family and to black Americans equal application of the
laws in violation of their rights under the Constitution
and the Civil Rights Acts. The Court concludes that the
plaintiffs have shown that they satisfy the injury in fact
element of the standing requirement.’ The Constitutional
and statutory enactments which the plaintiffs invoke are
for the protection of persons against discriminatory treat-
ment by government officials. Thus, the plaintiffs have
shown that they are within the zone of interest protected
by such enactments.’® Since the NAACP has long been
committed to the civil rights struggle and because the
Russ plaintiffs have an obvious desire to vindicate the
rights of their deceased husband and father, the “logical
nexus” between the plaintiffs’ status and the government
action from which they seek relief is also present.”
The government contends that plaintiffs lack standing
since they have not shown that they have a sufficient “per-
sonal stake in the outcome of the controversy” Baker v.
Carr, 369 U.S. 186, 204 (1962); have not shown that in-
juries have been or will be sustained by them; and, because
the “logical nexus” between any injury to the NAACP and
the Russ family on the one hand and the government
action complained of is insufficient or absent. In adopting
* Sierra Club v. Morton, 405 U.S. 727, 738 (1972).
*° Ass’n. of Data Processing Service Organizations v. Camp, 397
U.S. 150, 153 (1970).
" Flast v. Cohen, 392 U.S. 83 (1968).
lla
Appendix A
this stance they rely principally on Linda R.S. v. Richard
D., 410 U.S. 614 (1973). There, the mother of an illegit-
imate child challenged as unconstitutionally discriminatory
the application of a Texas criminal statute prohibiting the
willful refusal of a parent to support his child on the
ground that it was enforced by the state, as a result of
state court interpretation of the statute, against married
but not unmarried fathers. In holding that she lacked
standing the majority court observed
... we hold that, in the unique context of a challenge
to a criminal statute, appellant has failed to allege
a sufficient nexus between her injury and the govern-
ment action which she attacks to justify judicial inter-
vention. To be sure, appellant no doubt suffered an
injury stemming from the failure of her child’s
father to contribute support payments. But the bare
existence of an abstract injury meets only the first
half of the standing requirement. ‘The party who in-
vokes [judicial] power must be able to show . . . that
he has sustained or is immediately in danger of sus-
taining some direct injury as the result of [a statute’s]
enforcement.’ (citations omitted) As this Court made
plain in Flast v. Cohen, supra, a plaintiff must show
‘a logical nexus between the status asserted and the
claim sought to be adjudicated. . . . Such inquiries into
the nexus between the status asserted by the litigant
and the claim he presents are essential to assure that
he is a proper and appropriate party to invoke federal
judicial power. .. .’ 410 U.S. at 617, 618.
The majority opinion of Justice Thurgood Marshall
further stated “. . . that, in American jurisprudence at
|
12a
Appendiaz A
least, a private citizen lacks a judicially cognizable interest
in the prosecution or nonprosecution of another.” Id. at
619.
This historic role of the NAACP in its efforts to secure
for its members and others through litigation, the guaran-
teed civil rights which have been denied, cannot be ignored.
Had Carnell Russ survived his encounter with the Arkan-
sas law enforcement officers, there would be no question
of his standing. Before this Court in his stead is the Russ
family, seeking a vindication of his rights under law. The
allegations of the complaint support the conclusion that
they too have standing.
Failure to State a Claim
and
Prosecutorial Discretion
A prosecutor’s chief responsibility is to see that the laws
are faithfully executed and enforced in order to maintain
the rule of law. He has an affirmative responsibility to
investigate prudently suspected illegal activity when it is
not adequately pursued by other agencies.’* In Linda,
supra, the question of standing focused on whether or not
the plaintiff was an appropriate person to request judicial
intervention—and more specifically, whether the victim
of criminal acts may sue to correct allegedly unlawful
prosecutorial conduct. Federal courts have traditionally
acquiesced in discretionary decisions of the United States
Attorney not to prosecute persons against whom a com-
plaint of criminal conduct is made. The rule in this circuit
12 See generally: A.B.A. Standards Relating to the Administra-
tion of Criminal Justice, The Prosecution Funetion, Part III
(1974).
13a
Appendix A
is not otherwise. United States v. Gainey, 440 F.2d 290
(D.C. Cir. 1971); Newman v. United States, 382 F.2d 479
(D.C. Cir. 1967) ; Powell v. Katzenbach, 359 F.2d 234 (D.C.
Cir. 1965); Moses v. Katzenbach, 342 F.2d 931 (D.C. Cir.
1965); Moses v. Kennedy, 219 F.Supp. 762 (D.D.C. 1963).
Even though judicial restraint is generally observed, an
unfettered discretion is questionable when it fails to pro-
mote the ends of justice and denies rights conferred upon
a citizen by the Constitution and by Federal law.
In Nader v. Saxbe™ our Court of Appeals was concerned
with an application for a mandatory injunction against the
Attorney General and others to exercise their discretion to
initiate prosecutions against violators of the Federal Cor-
rupt Practices Act.‘ The plaintiffs were an individual
citizen and a nonprofit corporation. The Act was enacted
in 1925. While many violations had been committed, only
one prosecution, a test case, had been brought. The Attor-
ney General had exercised his prosecutorial discretion of
nonenforcement.
The case was mooted by the repeal of the statute during
the course of the litigation. However, Circuit Judge J.
Skelly Wright suggested that prosecutorial discretion was
not totally free from judicial review
The instant complaint does not ask the court to
assume the essentially Executive function of deciding
whether a particular alleged violator should be pros-
ecuted. Rather, the complaint seeks a conventionally
judicial determination of whether certain fixed policies
allegedly followed by the Justice Department and the
United States Attorney’s office lie outside the con-
13497 F.2d 676 (D.C. Cir. 1974).
1443 Stat. 1070, et seq., 2 U.S.C. former §§241-256.
l4a
Appendia A
stitutional and statutory limits of ‘prosecutorial dis-
cretion.’ 497 F.2d at 679.
In a continuing footnote he further commented
The Executive’s constitutional duty to ‘take Care
that the Laws be faithfully executed, Art. II, §3, ap-
plies to all laws, not merely to criminal statutes, see
In re Neagle, 135 U.S. 1, 63-64, 10 S.Ct. 658, 34 L.Ed.
55 (1890). It would seem to follow that the exercise
of prosecutorial discretion, like the exercise of Ex-
ecutive discretion generally, is subject to statutory
and constitutional limits enforceable through judicial
review. (citations omitted) The law has long recog-
nized the distinction between judicial usurpation of
discretionary authority and judicial review of the stat-
utory and constitutional limits to that authority. (cita-
tions omitted) Judicial review of the latter sort is
normally available unless Congress has expressly with-
drawn it. (citations omitted) 497 F.2d at 679, 680, fn.
19.
The judiciary has the responsibility of assuring that the
purpose and intent of congressional enactments are not
negated and frustrated by arbitrary conduct of government
officials..* In Medical Committee for Human Rights v.
S.E.C., 432 F.2d 659 (D.C. Cir. 1970), Cireuit Judge Ed-
ward A. Tamm noted
[T]he decisions of this court have never allowed
the phrase ‘prosecutorial discretion’ to be treated as
a magical incantation which automatieally provides a
shield for arbitrariness. 432 F.2d at 673.
18 See: DeVito v. Schultz, 300 F. Supp. 381 (D.D.C. 1969).
15a
Appendia A
The amended complaint, together with supporting af-
fidavits and memoranda show: that named defendants
undertook a token investigation to determine if a citizen’s
rights had been violated by Arkansas law enforcement per-
sonnel; that the Department of Justice adhered to a gen-
eral policy when there were alleged violations of an
individual’s constitutional and civil rights by state of-
ficials, namely deferring to state criminal investigation
rather than its own affirmative and objective investigation;
that this policy was followed by the Attorney General in
the Russ investigation; that the Federal Bureau of In-
vestigation at the time was less than vigorous and diligent
in investigating charges of unlawful conduct of state law
enforcement officers against black individuals. This, the
plaintiffs claim, was arbitrary and racially discriminatory
conduct by Federal officials. They should be afforded an
opportunity to support these allegations.
Lack of Subject Matter Jurisdiction
and
Sovereign Immunity
The amended complaint invokes jurisdiction primarily
under 28 U.S.C. §1343(4) and §1361 in conjunction with
the Fifth, Thirteenth and Fourteenth Amendments, the
Civil Rights Acts (42 U.S.C. §§1981 and 1985), and 18
U.S.C. §242. Section 1343(4) confers jurisdiction in a
district court to grant equitable or other relief under any
Act of Congress providing for the protection of civil rights.
Section 1361 authorizes mandamus actions.
The defendants question the applicability of $1981 and
suggest that it does not generally support a cause of action
charging discrimination by Federal officials or the Federal
government. There is, however, persuasive authority to
16a
Appendix A
the contrary which this Court recognizes. Penn v. Schles-
anger, 400 F.2d 700 (5th Cir. 1973); Baker v. F & F Invest-
ment Co., 489 F.2d 829 (7th Cir. 1973). Further, Congress
has explicitly given district courts power to consider cases
in the nature of mandamus against Federal officials. When
it is claimed that Federal officials are acting contrary to
law, abusing their discretion and acting outside the limits
of their permissible discretion, and when official conduct
extends beyond any rational exercise of discretion, even
though it is within the letter of the anthority granted, man-
damus affords the appropriate judicial relief.
Nor does the defense of sovereign immunity, as defen-
dants urge, serve as an absolute jurisdictional bar to the
maintenance of this action against the named defendants.
See: Scheuer v. Rhodes, 416 U.S. 232 (1974); Economou v.
Department of Agriculture, 44 U.S.L.W. 2516 (May 11,
1976). If they have engaged in racially discriminatory
practices, proscribed by §41981 or 1985 the plaintiffs should
not be stopped at the threshold. Where the manner in
which public officials exercise their authority is challenged
as contrary to constitutional and statutory mandates, the
doctrine of sovereign immunity may not prevail. Larson
v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 702
(1949). While the plaintiffs may be limited as to the extent
of the relief afforded by the Court, a consideration of that
aspect at this time is speculative and premature. There is
no sound basis for this Court to deny subject matter juris-
diction and sovereign immunity may not be asserted to
avoid a hearing on the merits.
In Scheuer v. Rhodes, Mr. Chief Justice Burger, in de-
livering the opinion for the court remarked
When a federal court reviews the sufficiency of a
complaint, before the reception of any evidence either
17a
Appendia A
by affidavit or admissions, its task is necessarily a
limited one. The issue is not whether a plaintiff will
ultimately prevail but whether the claimant is entitled
to offer evidence to support the claims. Indeed it
may appear on the face of the pleadings that a recovery
is very remote and unlikely but that is not the test.
Moreover, it is well established that, in passing on a
motion to dismiss, whether on the ground of lack of
jurisdiction over the subject matter or for failure to
state a cause of action the allegations of the complaint
should be construed favorably to the pleader. 416 U.S.
232 at 236 (1974).
On basis of the foregoing it is this 3rd day of September,
1976 ;
Orperep that the motions of the defendants for a change
of venue and to dismiss the complaint are denied, and it is
FurtHer Orperep that the defendants shall respond
forthwith to the plaintiffs’ request for production of doc-
uments and submit answers to the plaintiffs first set of
interrogatories by October 8, 1976.
/s/ Barrreton D. Parker
Barrington D. Parker
United States District Judge
18a
Appendix B
(Supplemental Memorandum Order)
UNITED STATES DISTRICT COURT
For tHe District or CoLUMBIA
Civil Action No. 75-1317
Tue NaTIONAL ASSOCIATION FOR THE ADVANCEMENT
or CovoreD Propte, et al.,
Plaintiffs,
V.
Grirrin B. Bett, et al.,
Defendants.
On July 12, 1977, the parties to this litigation moved
jointly to dismiss these proceedings without prejudice to
renewal by the plaintiffs. The basis of this request was
an announced policy of the Honorable Griffin B. Bell, At-
torney General of the United States,’ dealing with fed-
eral prosecution for violation of criminal civil rights
statutes. The primary objective of the plaintiffs in this
cause of action was to ensure that the United States De-
partment of Justice did not fail to vindicate federally
protected interests by not prosecuting local law enforce-
ment 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. The Attorney
? When the action was instituted on August 12, 1975, Mr. Ed-
ward Levi was the Attorney General of the United States. He has
since resigned that office and the Court, sua sponte, has substituted
the present incumbent, Griffin B. Bell, as party defendant.
19a
Appendia B
General, however, has recently issued a memorandum that
states that federal prosecution will be instituted whenever
necessary to vindicate federally protected interests re-
gardless of whether prior state prosecution has occurred.’
Since this memorandum is in accord with the policy ob-
jectives which underlie this suit and, in any event, may
have rendered this cause of action moot,’ the parties have
concluded that no useful purpose would be served by the
continued litigation of this lawsuit.
Accordingly, it is this 16th day of August, 1977,
Orperep that the cause of action is dismissed without
prejudice to reinstitution of the lawsuit in the event that
the defendants fail to comport with the standards set forth
in the aforementioned memorandum, Exhibit A hereto, and
without prejudice to the plaintiffs’ right to petition for
attorneys’ fees.
/s/ Barztneton D. Parker
Barrington D. Parker.
United States District Judge
Copies to:
J. Francis PoHiHAvus
James I, Meyerson
Attorneys for Plaintiffs
Dante, F. Rivzeu
Bruce J. BERGER
Department of Justice
Attorneys for Defendants
2 The policy statement is attached hereto as Exhibit A.
3 See e.g., Boxley v. Rodgers, 129 App. D.C. 408
(1968); Beringhelle v. Richardson, 457 F.2d 345, ir.
1972). See also Nader v. Volpe, 154 App. D.C. 332, 333-34, 475
F.2d 916, 917-18 (1973).
20a
Appendix B
Exhibit A
MemMorANDUM TO ALL Untrep States ATTORNEYS AND
Aut Heaps or Orrices, Divisions, Burgaus AND
Boarps OF THE DEPARTMENT OF JUSTICE
Susyect: Dual Prosecution Policy in Cases
Involving Violations of Civil Rights
By memorandum dated April 6, 1959, former Attorney
General Rogers set forth Department of Justice policy
guidelines regarding federal prosecution of an individual
where there has already been a state prosecution of that
individual for substantially the same act or acts.
I have reviewed this policy as it applies to cases in-
volving the violation of fedoral statutes pertaining to civil
rights. It is my belief that these statutes protect interests
which merit enforcement in their own right, regardless of
whatever related enforcement action has been taken by the
states. Accordingly, the policy which I shall follow in con-
sidering recommendations from U.S. Attorneys regarding
separate federal prosecutions is that each and every allega-
tion of a violation of the civil rights laws shall be evalu-
ated on its own merits, with the determining factor being
whether or not a federal prosecution is likely to vindicate
rights sought to be protected by those laws. The April 6,
1959 guidelines are hereby modified to the extent they are
inconsistent with this policy.
Grirrin B. Bett
Attorney General
2la
Appendix C
(Memorandum)
UNITED STATES DISTRICT COURT
For tHe District or CoLuMBIA
Civil Action No. 75-1317
Tue NationaL ASSOCIATION FOR THE ADVANCEMENT
or CoLoreD Prope, et al.,
Plaintiffs,
ee
Grirrin B. Bett, et al.,
Defendants.
MEMORANDUM
The plaintiffs in this proceeding have filed a motion for
attorneys’ fees and costs under the Civil Rights Attorneys’
Fees Awards Act of 1976, 42 U.S.C. § 1988. For the rea-
sons set forth below, the Court finds that plaintiffs are
entitled to a reasonable award.
I. Background
In 1971, Carnell Russ, a black, was fatally shot by a
white Arkansas law officer while detained for an alleged
speeding violation. The officer was subsequently acquitted
of manslaughter charges by a state court jury deliberat-
ing less than fifteen minutes. After reviewing the tran-
script of the manslaughter trial proceedings and Federal
Bureau of Investigation (FBI) reports, the Department
of Justice decided not to prosecute anyone under the fed-
eral criminal civil rights statute, 18 U.S.C. § 242,
22a
Appendiz C
The National Association for the Advancement of
Colored People (NAACP) and the Russ family brought
this action under the Civil Rights Act, 42 U.S.C. §§ 1981
and 1985, challenging the adequacy of the federal investi-
gation and the decision not to prosecute. In essence, they
claimed that the Justice Department illegally deferred to
state proceedings, thereby pursuing a policy, established
in 1959 by Attorney General William Rogers, not to follow
a state prosecution with a federal trial for the same act,
absent compelling reasons. As applied to civil rights cases,
specifically to the Russ shooting, plaintiffs labeled this
policy unreasonable and racially discriminatory.
In February of 1977, Attorney General Griffin Bell
issued a memorandum modifying the 1959 non-dual prose-
cution policy in the civil rights field. He announced that
“each and every allegation of a violation of the civil rights
laws shall be evaluated on its own merits,” irrespective of
related state enforcement action.
Agreeing that this memorandum effectively mooted this
action, the parties moved jointly to dismiss. Finding that
the Bell memo was indeed “in accord with the policy ob-
jectives which underlie this suit,” the Court dismissed the
case without prejudice.
Plaintiffs seek an award of $28,700.00 in attorneys’ fees
and $855.50 in costs under 42 U.S.C. § 1988, which pro-
vides in relevant part that
[i]n any action or proceeding to enforce a provision
of sections 1981, . . . 1985, . . . 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.
Defendants do not contest the validity of applying this act
retroactively or to obtain an award from the government.
23a
Appendix C
See S. Rep. No. 94-1011, 94th Cong., 2d Sess. 4-5 (1976).
They do contest plaintiffs’ status as prevailing parties
under the statutory scheme and the reasonableness of the
amounts requested. On balance, the Court finds that plain-
tiffs have prevailed, since this action was a catalytic fac-
tor in the issuance of the memo. Further, the Court finds
that their counsel are entitled to an award of $26,912.25.
II. Plaintiffs Are Prevailing Parties
To determine whether a party has prevailed in order
to collect attorneys’ fees under § 1988, the Court must
focus on whether that party has accomplished the objec-
tives 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). A party need not win a
full trial on the merits to be said to prevail, but the law-
suit must have resulted in or been the catalyst of a vic-
tory for the party or the class he represents. Parker v.
Califano, supra; Parham v. Southwestern Bell Telephone
Co., 433 F.2d 421 (8th Cir. 1970); Fogg v. New England
Tel. & Tel. Co., 346 F. Supp. 645 (D.N.H. 1972).
The defendants here claim that plaintiffs accomplished
none of the objectives of this litigation The Order of Dis-
missal neither required the government to undertake a
full investigation of the Russ shooting nor provided mone-
tary relief for the Russ family. Because they maintain
that non-dual prosecution considerations did not govern
in the Russ case, defendants disavow any relationship
between the complaint and issuance of the Bell memo-
randum. Indeed, they deny the existence of any such policy
and interpret the memorandum to be a clarification of De-
partment rules, rather than a policy reversal. In specific,
Attorney General Bell was merely explaining why the De-
24a
Appendiaz C
partment brought a criminal prosecution in the Morales
case after a state conviction. See discussion infra at
page 4.
Viewing defendants’ arguments to be at best disingenu-
ous, the Court finds that plaintiffs’ persistent prosecution
of this action was a strong catalytic factor in the issuance
of the Bell memorandum. True, plaintiffs did not obtain
monetary relief or federal investigation with an eye toward
prosecution, the latter presumably due to statute of lim-
itations problems. They did, however, achieve the policy
objectives outlined in the second amended complaint.
The Court and the parties alike recognized that plain-
tiffs’ major reason for pursuing this lawsuit was to pub-
licize and correct the government policy of deferring to
prior state civil rights prosecutions, with its discriminatory
impact on Carnell Russ and other minority group mem-
bers. The joint motion to dismiss and the resulting Sup-
plemental Memorandum Order of August 16, 1977, iden-
tify this as the “primary objective” of the suit and admit
that the Bell memorandum is “in accord” with that policy
objective.
In his memorandum, Attorney General Bell announced
that the 1959 non-dual prosecution policy shall not govern
in civil rights cases. While not admitting that the 1959
policy had been used in the Russ case or others, the memo
suggests that agency practice had not been one hundred
percent in accord with the standards outlined in the memo.
Even assuming that the memo was issued to clarify govern-
ment policy or to prod federal attorneys and investigators
to pursue dual prosecutions more vigorously, its issuance
was bound to benefit victims of civil rights crimes.
Discovery in this case revealed that the FBI and Justice
Department received many complaints requesting inde-
25a
Appendiz C
pendent federal investigations of the shooting deaths of
minority persons by white law enforcement officers, follow-
ing questionable state proceedings. The most publicized
of these involved the 1975 killing of Ricardo Morales, a
Mexican-American, by Texas Police Chief Frank Hayes,
for which Chief Hayes was sentenced by a state court to
two to ten years for Aggravated Assault. United States v.
Hayes, SA 77-Cr-38 (W.D. Tex. July 8, 1976). The U. 8.
Attorney reversed his decision not to prosecute, which had
been based in part on the non-dual prosecution policy, only
after massive pressure was brought to bear by civil rights
groups and national politicians. See Affidavit of Ruben
Sandoval, December 4, 1976.
In issuing the dual prosecution memorandum as one of
his first official acts, Attorney General Bell was presumably
addressing the major policy problem reflected by such
numerous complaints. While the Morales case may have
been the immediate motivation for the memo, the plaintiffs
in this litigation also played a role in causing his action.
In a situation such as this, where policy matters are con-
cerned, plaintiffs should not be denied prevailing party
status and attorney’s fees only because other citizens have
paralleled their attempts to correct the offending policies.
Indeed, the policy ramifications of this case distinguish it
from the Title VII catalyst cases discussed by both parties.
See Foster v. Boorstin, 561 F.2d 340 (D.C. Cir. 1977) ; Fogg
v. New England Tel. & Tel. Co., supra. Where filing of a
discrimination suit by an employee leads an employer to
change promotion procedures, without the necessity of
concluding court proceedings, it is not difficult to credit the
employee with the change. Here, the plaintiffs challenged
alleged policies of discriminatory investigation and prose-
cution by the federal government. Given that such dis-
26a
Appendix C
crimination is more subtle than that involved in the average
Title VII case, plaintiffs cannot be faulted because the re-
lief sought and obtained is also difficult to pinpoint. The
standards for dual prosecution set forth in the memoran-
dum are intended to and will benefit victims of civil rights
crimes. Pursuant to the terms of this Court’s Order of
August 16, 1977, the defendants are to comport with these
standards, thereby increasing the likelihood that a Carnell
Russ incident will not be repeated. Plaintiffs deserve
credit for achievement of this policy objective.
The Court, exercising its discretion under 42 U.S.C.
§ 1988, finds that the disposition of this case leaves plain-
tiffs entitled to »n award of reasonable attorneys’ fees and
costs.
III. Reasonable Attorneys’ Fees and Costs
To gauge the reasonableness of attorneys’ fees requested
by plaintiffs, the Court has referred to the relevant criteria
of Johnson v. Georgia Highway Express, Inc., 488 F.2d 714
(5th Cir. 1974), adopted by this Circuit in Evans v. Shera-
ton Park Hotel, 503 F.2d 177 (D.C. Cir. 1974), which in-
clude: 1) the experience and reputation of the attorneys;
2) the time and labor required; 3) the novelty and dif-
ficulty of the questions; 4) the nature and length of the
professional relationship with the client; 5) the amount
involved and results obtained; and 6) the customary fee.
Plaintiffs have filed affidavits in support of their request
for attorneys’ fees of $28,700.00. Their principal attorney,
James I. Meyerson, Esquire, has been an Assistant General
Counsel for the NAACP since 1970 and has accumulated
extensive litigation experience in the civil rights field. He
seeks compensation at the rate of $100.00 per hour for 236
hours of legal work and 24 hours of travel. J. Francis
27a
Appendiz C
Polhaus, Esquire, NAACP attorney for 24 years, also seeks
compensation at $100.00 per hour for 27 hours of legal
work, including 17 hours on the motion for attorneys’ fees.
Defendants view the requested amount to be unreason-
ably high, though they do not specifically contest the rate
charged or the hours invested. They do object to plaintiffs’
failure to document their attorneys’ reputation or fees
awarded in similar cases.
The Court finds that the award requested, minus com-
pensation for travel hours, is reasonable and fair. The
rate of $100.00 per hour is commensurate with counsels’
experience in the civil rights field and their reputation, of
which the Court takes notice. Given the breadth of plain-
tiffs’ complaint and the novelty of the policy attack, which
explains why comparable awards cannot be quoted, the
hours spent on legal work are justifiable. Hourly com-
pensation for travel hours, above and beyond expenses, is
inappropriate. In sum, therefore, plaintiffs are entitled
to attorneys’ fees of $26,300.00.
In addition, plaintiffs seek to tax $855.30 in costs: $210.00
in plane fare and $96.00 in expenses incurred by counsel on
three trips to Washington, D. C., to take depositions, to
argue a discovery motion before the United States Magis-
trate, and to argue motions before the Court; $222.25 for
deposition transcripts; $77.05 for expenses incident to the
depositions; and $250.00 for copying charges.
On the basis of 28 U.S.C. §§ 1920 and 2412, the Court
will allow the transcript ($222.25) and copying costs
($250.00) to be taxed in full. Plaintiffs are also entitled to
be reimbursed for transportation costs ($140.00) incurred
by counsel to appear before the Court on the two noted
occasions. Plaintiffs will not be allowed travel-related
expenses or the $77.05 of unspecified costs incident to tak-
28a
Appendiz C
ing of depositions. Costs will therefore be taxed in the
amount of $612.25.
On the basis of the foregoing discussion and computation,
the Court has determined that plaintiffs are entitled to a
total award of $26,912.25, representing $26,300.00 in attor-
neys’ fees and $612.25 in costs.
An appropriate Order will be entered.
Entered: March 31, 1978
/s/ Barrinectron D. Parker
Barrington D. Parker
United States District Judge
Copies to Counsel
29a
Appendix D
(Order dated March 31, 1978)
UNITED STATES DISTRICT COURT
For tHE District or CoLuMBIA
Civil Action No. 75-1317
Tue NationaL ASSOCIATION FOR THE ADVANCEMENT OF
CotorED PErop.e, et al.,
P laintiff S;
GrirriIn B. Bex, et al.,
Defendants.
ORDER
In accordance with the Memorandum of this Court en-
tered this date, it is this 3lst day of March, 1978,
Orperep that plaintiffs’ application for attorneys’ fees
and costs be granted in the amount of $26,912.25, repre-
senting $26,300.00 in fees and $612.25 in costs, which is a
fair and reasonable award in the present case; and it is
FurTHER ORDERED that defendant shall, within 30 days
of the date of this Order, pay to plaintiffs’ counsel, James
I. Meyerson, Esquire, and J. Francis Polhaus, Esquire,
the aforementioned sum of $26,912.25; and it is
30a
Appendix D
FURTHER ORDERED that plaintiffs’ counsel shall, upon re-
ceipt of the aforementioned sum of $26,912.25, reimburse
to plaintiffs such sums as counsel have collected to date
for their services in connection with this case.
/8/ Barrineton D. Parker
Barrington D. Parker
United States District Judge
Copies to Counsel
3la
Appendix E
(Opinion of United States Court of Appeals)
Notice: This opinion is subject to formal revision before publication
in the Federal Reporter or U.S.App.D.C. Reports. Users are requested
to notify the Clerk of any formal errors in order that corrections may be
made before the bound volumes go to press.
United States Comt 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, e¢ al.
Vv.
UNITED STATES OF AMERICA, et al., APPELLANTS
Appeals from the United States District Court
for the District of Columbia
(D.C. Civil Action Nos. 75-1817 & 77-1936)
1
Argued April 23, 1979 Judgment entered
this date
——=
Decided September 26, 1979
Bills of costs must be filed within 14 days after entry of judgment. The
court looks with disfavor upon motions to file bills of costs out of time.
32a
Appendiz E
Janis Sposato, Attorney, Department of Justice, a
member of the bar of the Supreme Court of Connecticut,
pro hac vice, by special leave of court, with whom Barbara
Allen Babcock, Assistant Attorney General at the time
the brief was filed, Earl J. Silbert, United States At-
torney General at the time the brief was filed, and Wii-
liam Kanter and Mark H. Gallant, Attorneys, Depart-
ment of Justice, were on the brief, for appellant in No.
78-2039. Dennis A. Dutterer, Assistant United States
Attorney, entered an appearance for appellant in No.
78-2039.
Cynthia L. Attwood, Attorney, Department of Justice,
with whom Drew S. Days III, Assistant Attorney Gen-
eral, Earl J. Silbert, United States Attorney at the time
the brief was filed, and Walter W. Barnett, Attorney,
Department of Justice, were on the brief, for appellants
in No. 78-1639.
J. Francis Pohlhaus for appellee in No. 78-1639.
I. Michael Greenberger for appellee in No. 78-2039.
Linda R. Singer and Ronald A. Schechter were on the
brief for amicus curiae, urging affirmance in No. 78-
2039 only.
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.
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
* The Honorable Earl] R. Larson, United States Senior Dis-
trict Judge for the District of Minnesota, sitting by designa-
tion pursuant to 28 U.S.C. § 292(d).
. 33a
Appendiz E
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 (3) 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.
NAACP v. Bell, 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 transcript of the trial
1 The United States District Court for the District of Colum-
bia, the Honorable Gerhard A. Gesell presiding.
34a
Appendiz E
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 Bell 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
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-
2The United States District Court for the District of
Columbia, the Honorable Barrington Parker presiding.
35a
Appendiz E
pressed.” United States v. King, 395 US. 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 1851,
1353 (D.C. Cir. 1975). Such clear statutory authority
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
328 U.S.C. § 2412 as presently drafted provides:
“Except as otherwise specifically provided by statute, a
judgment 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 recover-
able against the United States unless such liability was ex-
pressly provided 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, ex-
plicitly excluded “the fees and expenses of attorneys” from
the costs recoverable under § 2412 as a matter of course.
Thus, with respect to attorney’s fees, § 2412 remains an
explicit assertion of sovereign immunity. See Alyeska Pipe-
line 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. .. .”.).
36a
Appendiz E
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 18381 (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 by noting that the gov-
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
‘ Other civil rights statutes contain similar language. See,
e.g., 42 U.S.C. §§ 2000b-1, 2000e-5 (k). In addition, a number
of noncivil rights statutes explicitly provide for fee awards
against the United States. See e.g., 5 U.S.C. §552(g) (2)
(B) (Freedom of Information 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 witness fees) to any party, whenever the court
deteimines such award is appropriate... .”
37a
Appendiz E
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:
“In 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
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.
* 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, 1988, 1985, 1986], title IX of
{the Education Amendment 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 pro-
vision of the United States Internal 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 pre-
vailing party, other than the United States, a reasonable
attorney’s fee as part of the costs.”
38a
Appendiz E
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 aplies 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
Pipeline Service Co. v. Wilderness Society, supra,* and
given the Alyeska mandate that, to overcome the barrier
7 See, e.g., 42 U.S.C. § 2000a-3(b) quoted supra and stat-
utes cited at note 4 supra.
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).
39a
Appendiz E
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 conceivab/y 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.°
® Actions under the Reconstruction Era Civil Rights statutes
are generally brought by individuals against other individuals
or against 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
40a
Appendiz E
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. Jd. 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 authoritzed by Congress without an express
pony waiver of the States’ immunity.” Jd. at
In Hutto v. Finney, The Supreme Court considered the
absence of an express statutory waiver no obstacle to 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 Congress 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-
pooh Tiniversity of Chicago, 47 U.S.L.W. 4549 (May 14,
4la
Appendiz E
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 uf 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 8 supra.
™ Thus, for example, Congressman Railsback, the ranking
Republican 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 question, 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
Congressman Rodino, the Chairman of the House Judiciary
Committee, in his response to a request from Senator Kennedy
for comments.on an amendment offered by Senator Goldwater
42a
Appendiz E
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 responsible
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 te-Cctreaux v. Hills, 425 U.S. 284 (1976), a case
involving a Title VI elaim 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
which would have subjected the United States to broad liabil-
ity 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 ‘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.” 122 Cong.
Rec. S. 16490 (daily ed., Sept. 23, 1976).
43a
Appendix E
reference to federal liability is, we think, hardly sufficient
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 the-
ories 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 first 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 im-
munity generally afforded agencies of the federal government.
However, it is well established that Congress in waiving gov-
ernmental immunity has the power to waive immunity en-
tirely or to waive it for some purposes and retain it for others.
See Federal Housing Administration Region No. 4 v. Burr,
309 U.S. 242, 244 (1989), and cases cited therein. Congress
made no mention of attorney’s fees in permitting the Admin-
istrator of the SBA to “sue and be sued.” Moreover, the
clause was enacted at a time when, under the “American
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 expect the government to be liable for attorney’s fees.
In any event, because §5(b) of the Small Business Act
neither directly nor expressly 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 con-
temporaneously with the Awards Act contains an express
44a
Appendiz E
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
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.
Appellees submit that § 702 expressly waives sovereign im-
munity for relief against the United States, except for money
damages, and the Awards Act provides a type of relief, at-
torney’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 com-
bine to expressly authorize the award of fees against the
United States:
While imaginative, appellees’ argument is unconvincing.
The legislative history surrounding passage of the APA
amendment suggests that Congress sought by the amendment
to achieve the narrow purpose of withdrawing the defense of
sovereign immunity in actions 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.
* 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
45a
Appendiz E
of whether to amend the Awards Act to explicitly allow
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.
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 jurisdiction is but an empty gesture. ... Hall
v. Cole, 412 U.S. 1 (1978), quoting 462 F.2d 777, 780-81
(2d Cir. 1972).” S. Rep. No. 94-1011, 94th Cong., 2d
Sess. at 8 (1976).
The same comment might appropriately be made with respect
to enforcement of the rights afforded under the civil rights
statutes as applied to the federal government.
46a
Appendiz E
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.
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
142 U.S.C. § 1988 (1976) provides in relevant part:
In any action or proceeding to enforce a provision of sec-
tions 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 viola-
tion of, a provision of the United States Internal Reve-
nue 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, sug-
gest 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 federal government, I do not reach these alterna-
tive arguments.
47a
Appendiz E
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.
II
Congress enacted Section 1988 in response to the Su-
preme Court decision in Alyeska Pipeline Service Co. v.
* In 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 stat-
ute. 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
judgment for costs, as enumerated in section 1920 of this
title but not including the fees and expenses of at-
torneys[,] may be awarded to the prevailing party in
civil action brought by or against the United
any agency or official of the United States acting in
official capacity, in any court having jurisdiction of
action. * * *
ite
48a
Appendia E
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 pre-
vailing 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.
One theme that runs through the legislative history of
the Act is the belief that attorneys’ fees awards are
* 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 at-
torney’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-8(b) (1976).
* See, e.g., Sims v. Amos, 840 F.Supp. 691 (M.D. Ala.)
(three-judge court), aff'd, 409 U.S. 942 (1972); Stanford
Daily v. Zurcher, 866 F.Supp. 18 (N.D. Cal. 1973), aff’d, 550-
aT Bie Cir. 1977), rev’d on other grounds, 486 U.S.
49a
Appendia E
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
* 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 success-
ful 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 Congress firmly intends
that all our civil rights laws be vigorously enforced.
122 Conc. REc. S 16252 (daily ed. Sept. 21, 1976). Congress-
man Drinan remarked in the House:
If Federal laws providing for the protection of civil
constitutional 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 important tool for effectuating that
purpose.
122 Cona. 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).
50a
Appendiz E
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. 1978), 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
8 Parker v. Califano, 561 F.2d 326, 331 (D.C. Cir. 1977).
* Courts have construed civil rights attorneys’ fees provi-
sions very broadly in order to further Congress’ purposes.
Thus the Supreme Court held in Newman v. Piggie Park
Enterprises, Inc., 390 U.S. 400 (1968), that notwithstanding
the statutory language that the District Court “in its discre-
tion” may award costs to the prevailing party, the purpose
of encouraging private enforcement dictates that a prevailing
party should recover attorneys’ fees “unless special circum-
stances would render such an award unjust.” Jd. 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 lib-
erally applied the attorney’s fees provision of Title VII, recog-
nizing the importance of private enforcement of civil rights
legislation.” Jd. at 716 (footnote omitted) (quoting Culpep-
ee Metals Co., 421 F.2d 888, 891 n.3 (5th Cir.
5la
Appendiz E
as broad as its language.” United States v. Price, 383
U.S. 787, 801 (1966) ; Jones v. Alfred H. Mayer Co., 392
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 Govern-
ment 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
amendment 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 amendment 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
52a
Appendiz E
rs
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. v. 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."
taxpayer, * * * then the Government should be required
to pay that attorney fee.
122 Conc. REc. § 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) (em-
phasis added).
Indeed, a straightforward 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 804(d) provides:
The court, in issuing any final order in any action
brought pursuant to subsection (a) of this section, may
53a
Appendiz E
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. 76-1087, 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 Conc.
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. Section 505(b)’s
sponsor and the accompanying Committee Reports made
it clear that this attorneys’ fee provision is to be used to
award costs of litigation (including reasonable attorney
and expert witness fees) to any party, whenever the
court determines such award is appropriate. * * *
42 U.S.C. § 7604(d) (Supp.11977). ~
2 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 at-
torney and expert witness fees) whenever it determines
that such award is appropriate.
18 Section 505 (b) provides:
cretion, may allow the prevailing party, other than the
United States, a reasonable attorney’s fee as part of
d4a
Appendiz E
vindicate rights against the federal government." If
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
14 Senator Cranston, in introducing the attorneys’ fees pro-
vision, said:
Mr. President, the rights extended to handicapped in-
dividuals under title V of the Rehabilitation Act of 1973
—Federal Government employment, physical accessibility
in public buildings, employment under Federal contracts,
and non-discrimination under Federal grants—are and
will continue to be in need of constant vigilance by
handicapped individuals to assure compliance. Pri[va]te
enforcement of these title V rights is an important and
necessary aspect of assuring that these rights are vindi-
cated and enforcement is uniform. The availability 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).
55a
Appendiz E
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
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
18 The inference that the omission was deliberate and sig-
nificant would have been more plausible if the same Congress
United States was included in one list but not in the other.
56a
Appendiz E
opinion at 12-18. 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, eg., * * * Gautreaux
v. Hills, [425 U.S. 284 (1976)]. Such governmental
entities 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
57a
Appendiz E .
under the statutes invlved have been brought against
both Federal officers and private individuals.
* * & 2
H.R. 9552 authorizes the awarding of attorneys’
fees as a matter of discretion in certain civil rights
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 attorney fees. On the other hand,
it would be required to pay the counsel fees of a
private prevailing party, which is prohibited gen-
16 Mr. Lee went on:
[The Department of Justice expresses] support in
principle for H.R. 8220 and H.R. 9552, awarding of at-
torneys’ 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
Judiciary Subcommittee on Courts, Civil Liberties, and the
Administration 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 aiscretionary. Mr. Lee favored discretionary awards
and also had reservations about fee awards in every § 19838
case. Thus he supported the bills “in principle.” See House
Hearings at 176-180.
58a
Appendix E
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... .”
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
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 amend-
ment 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 sub-
sequently aproved by the House Judiciary Committee with an
amendment that added title IX of Public Law No. 92-818 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 Parliamen-
tarian and staff and legislative counsel. See H.R. Rep. No. 94-
1558, supra note 7, at 3-4 & n.4. Time pressures made it nec-
essary for the House to adopt the Senate version, S. 2278, in
place of H.R. 15460. However, the two bills were nearly
identical. .
59a
Appendiz E
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.'*
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 attorney’s 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
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).
60a
Appendiz E
“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 Conc. 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
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 amendment that he proposed. See 122 ConG. 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 Govern-
ment. 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 avail-
able resources, with concommitant impact on other Gov-
ernment programs.
House Hearings, supra note-16, at 178 (emphasis added).
Thus the CBO did not foresee any additional costs (i.e., new
appropriations) 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 Depart-
6la
Appendiz E
ment’s appropriations for such payments. These payments
are apparently made from a general fund for “expenses neces-
sary for the legal activities of the Department 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 fed-
eral 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 Staies, it is reasonable to conclude that
the CBO “estimate” 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 pro-
posed amendment to S. 2278 that would have subjected the
United States to broad liability for tax cases. In the letter
Mr. Rodino expressed concern that the amendment could
jeopardize Administration support for the bill and weaken
its chances for enactment. He said:
The Committee is presently studying other bills, like
Senator Goldwater’s, which would go far beyond th
“American Rule,” or the “private attorney 3
ception to it, and which may allow recovery against
Federal Government. We hope to take action next
gress on such bills. However, I fear that quick i
on the Goldwater amendment, which goes far
narrow provisions of S. [2]278, would defeat
122 Conc. Rec. S 16490 (daily ed. Sept.
majority cites this letter as evidence that some
of Congress did not think that S. 2278 applied
States. Majority opinion at 11 n.11. While it
on
+P
Hera
62a
Appendiz E
2. The House Debates
The majority acknowledges that there is support in the
report of the floor debates in the House f
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.