Opposition Brief — Hudson v. Reno

No. 97-1987

In the Supreme Court of the United States

OcTORER TI RM, 1997

\I NV L. HUDSON, PETITIONER

BRIEF FOR THE RESPONDENT IN OPPOSITION

QUESTIONS PRESENTED

1. Whether the Civil Rights Act of 1991, 42 U.S.C.

1981a(b)(3), which limits to certain sums the compen-

satory damages that may be awarded “in an action

brought by a complaining party” under Title VII. lim-

its the total of compensatory damages per lawsuit

that may be awarded to a plaintiff, or rather operates

as a Cap on an award on each claim brought by a party

in a Title VII suit.

2. Whether petitioner was entitled to front pay as a

remedy for the post-November 20, 1991, violations of

Title VII found by the jury.

3. Whether the district court abused its discretion

in awarding attorney’s fees to petitioner at market

rates prevailing in Knoxville, Tennessee, where the

trial in this case took place, rather than the Washing-

ton, D.C., rates charged by petitioner’s counsel. or

in disallowing certain of petitioner's claims for

attorney's fees that were based on duplicative effort

and time spent on issues on which petitioner did not

prevail.

(1)

i OAR

TABLE OF CONTENTS

Page

NEE NIE inirciictacesinvdssuicieiisntnennnecsoedssastonesesnerbeci oases 1

a SORT RSEEE BERET si ae ee ana eR en 1

ESAS SETTER STE EMS a eee ee a ae ee 2

SERS NEE SRGES BLEED aR IS Ca 10

Ce cawbamiadiobing 19

TABLE OF AUTHORITIES

Cases: oe

Blum v. Stenson, 465 U.S. 886 (1984) ..................... 18

Chrysler Corp. v. Brown, 441 U.S. 281 (1979) ......... 13

EEOC vy. AIC Sec. Inve stigations, Ltd., 55 F.3d

I a eteukacenas 2

Farrar v. Hobby, 506 U.S. 103 (1992) .........ccccceccceee 19

FEC v. NRA Political Victory Fund, 513 U.S. 88

RAS EE SUPA ISCEN IRA Mare SSO eh Werke a a NR 14

Hensley v. Eckerhart, 461 U.S. 424 (1983) ...... 17. 18, 19

Hogan v. Bangor & Aroostook R.R., 61 F.3d 1034

RR CR aR eae Sie Pee COO ae 1?

Hudson v. Barr, 3 F.3d 970 (6th Cir. 1993) ............ 5

Landgraf v. USI Film Products, 511 U.S. 244

I i 5, 13

Lane v. Petia, 518 U.S. 187 (1996) ............ccsccsseseseeee 12

McKennon v. Nashville Banner Publishing Co.,

I I A I i ci 17

Mills Music, Inc. v. Snyde r, 469 U.S. 153 (1985) .... 1]

Pennsylvania v. Delaware Valley Citizens’ Council

for Clean Air, 478 U.S. 546 (1986) .............ccceccseseeee 1»

Pierce v. Underwood, 487 U.S. 552 (1988) ............. 17. 18

Reynolds v. CSX Transportation, Inc., 115 F.3d

860 (11th Cir. 1997), vacated, 118 S. Ct. 2364

SUNPIIUEE Uicilnhiinttisalnianisnanieidsenseeskahd dunccmmendengviisseusieiincuancs 14

Ruckelshaus v. Sierra Club, 463 U.S. 680 (1983) .... 12

(IIT)

Cases—Continued: Page

Shore v. Federal Express Corp., T77 F.2d 1155

PON Noms RUD cithintnaictesenric ett eee 16, 17

United States v. Texas, 507 U.S. 529 PRUE etbiiindess: 13

Williams v. Pharmacia, Inc., 137 F.3d 944 (7th

Sh: MONET \trdnaiinldns apbenidabidisyctin diced tort a 14, 15, 16

Statutes and rules:

Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 20006

et seq. PAASAEDERGRESS DEGEHEDOENOS OAS ORdds Rese ecencdonscannnenaeeuethe Reeeecnc z=. i)

oe iis SEER ote iit ee 8 eo 11-12

Te A Poars SPREE i 12

Civil Rights Act of 1991, Pub. L. No. 102-166, 105

Stat. 1071:

Wy Alas SHORE Necisitielnmite se 9,10, 12

iy Sis. MIRED cchies eer eee gc 9, 10

ee Tiss PN cisciisiee te 10

We WTR. TORMMONS) Sonvcstdscisivencecdicc ccc oe 11,15

SZ U.G.C. 1S lalbNSMD) ..cccecsrcocscsecccecssecscees....... 6, 8,9

ae SINS III scar da nek uaa gh tS 14

i Sree. NI, “hie apeidingiaiat ee ees », 9

Fed. R. Civ. P.:

cei ho nO NT SS. ERED LATS I TIE TLL Oe 1]

FUE IO inseonnantshiinedtmuaminteihas aa Ce ne a ll

Miscellaneous:

Black’s Law Dictionary (6th ed. 1991) .o..cccccccccccccccees 1]

137 Cong. Rec.:

p. H9527 (daily ed. Nov. 7, 1991) ...cccccccccoscccoeeeess... 13

p. 515,484 (daily ed. Oct. 30, 1991) oo...eccccccccccceseceee. 13

In the Supreme Court of the United States

OcTOBER TERM, 1997

No. 97-1987

MARILYN L. HUDSON, PETITIONER

v.

JANET RENO, ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-

34a) is reported at 130 F.3d 1193. The_opinion of the

district court on the merits of petitioner’s claims un-

der Title VII before the statute’s amendment on No-

vember 21, 1991 (Pet. App. 76a-129a) and its opinion

awarding attorney’s fees (Pet. App. 35a-75a) are unre-

ported.

JURISDICTION

The judgment of the court of appeals was entered

on December 4, 1997. A petition for rehearing was de-

nied on March 10, 1998. Pet. App. 136a-137a. The

petition for certiorari was filed on June 8, 1998. The

(1)

2

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1). E

STATEMENT

Petitioner, a former Assistant United States

Attorney (AUSA) in Knoxville, Tennessee, brought

this action under Title VII of the Civil Rights Act of

1964, 42 U.S.C. 2000e et seg. Petitioner alleged that

the Department of Justice had engaged in sex dis-

crimination and unlawful retaliation against her with

respect to her employment. With respect to peti-

tioner’s claims based on conduct before the November

21, 1991, amendment of Title VII, the district court

found that no unlawful conduct had occurred. Pet.

App. 76a-129a. With respect to her claims based on

conduct after November 20, 1991, the jury found in

petitioner’s favor, and awarded her $1.5 million in

compensatory damages. /d. at 133a-134a. The district

court reduced that damages award to $300,000. Jd. at

128a, 134a. It also awarded petitioner $164,330.96 in

back pay, id. at 128a-129a, but disallowed any remedy

of reinstatement or front pay, id. at llla-1l5a. The

district court then awarded $430,752.28 in costs and

attorney’s fees, id. at 74a, after rejecting certain of

petitioner’s claims for fees, id. at 45a-7la. The court

of appeals affirmed. Jd. at la-34a.

1. Petitioner was hired as an AUSA for the

Eastern District of Tennessee in 1983 by then-United

States Attorney John W. Gill, Jr. At about the same

time, Gill also hired as an AUSA James R. Dedrick,

who later became First Assistant U.S. Attorney.

Petitioner was promoted to a supervisory position in

February 1989, and was again promoted in November

1989 to Chief of the Office’s Civil Division. Pet. App.

3a. Until April 1990, petitioner’s performance was

3

rated as “outstanding,” but during 1990 and 1991, her

superiors became dissatisfied with her management

performance. /d. at 3a-4a. In January 1991, Gill and

Dedrick put petitioner on a 90-day performance im-

provement plan. Jd. at 4a. In May 1991, after

petitioner had failed to improve her management per-

formance, Dedrick and Gill gave petitioner a “mini-

mally satisfactory” performance evaluation as Chief

of the Civil Division. Jd. at 4a, 79a-&2a.

On May 31, 1991, petitioner initiated an administra-

tive equal employment opportunity (EEO) complaint

within the Department of Justice. Unaware that

petitioner had filed an EEO complaint, Gill and

Dedrick demoted petitioner from her position as

Chief of the Civil Division and transferred her to a

non-supervisory position in the Criminal Division (al-

though she was still compensated at her supervisory

pay level). Pet. App. 4a. After her demotion, peti-

tioner expressed an intention to “strike back” at the

management of the Office, openly and harshly criti-

cized her superiors (referring to them as liars and

using expletives to describe them), and lied to the

new Chief of the Criminal Division about her leave

status. /d. at 84a. Based on reports of this conduct,

Gill wrote to Laurence S. McWhorter, Director of

the Executive Office of United States Attorneys

(EQUSA) in Washington, D.C., on November 13, 1991,

recommending petitioner’s removal from employment

and her immediate placement on administrative leave

pending a final decision on her employment status.

EOUSA concurred in the recommendation, and, on

November 20, 1991, petitioner was given a letter from

McWhorter placing her on administrative leave,

advising her that McWhorter was considering pro-

posing her removal to the Deputy Attorney-General

on the grounds suggested by Gill, and affording her an

opportunity to respond to the charges against her in

advance of McWhorter’s recommendation to the

Deputy Attorney General. Jd. at 86a.

In February 1992, after replacing Gill as the U.S.

Attorney, Jerry G. Cunningham interceded with

EOUSA on petitioner’s behalf and ultimately was able

to have petitioner returned to duty status. Cunning-

ham also replaced Dedrick with Guy Blackwell as

First Assistant U.S. Attorney. Pet. App. 39a-40a. In

June 1992, Cunningham sent petitioner a memoran-

dum detailing instances of her misconduct since she

had returned to duty, including lack of truthfulness,

unauthorized removal of documents, failure to report

for work, and unprofessional and divisive conduct. Jd.

at 6a.

In May 1993, Cunningham left office. In August

1993, petitioner learned that Dedrick would be re-

appointed as First Assistant once Cunningham’s re-

placement, Carl Kirkpatrick, was sworn into office.

Pet. App. 7a. Petitioner then resigned, effective

September 4, 1993, and immediately went into private

practice as a partner in the firm of Ailor, Andrews &

Hudson in Knoxville. bid.

2. On December 11, 1991, petitioner filed a “peti-

tion” in district court, which alleged sex discrimi-

nation and unlawful retaliation in violation of Title

VII, and requested an order barring the US.

Attorney from suspending her from employment as an

AUSA. On December 11, 1991, the court gianted a

temporary restraining order (TRO) pending a

preliminary injunction hearing, which it indefinitely

continued. Pet. App. 6a.

On October 27, 1992, petitioner filed another com-

plaint in district court, which again alleged sex dis-

5

crimination and retaliation, and sought damages

under the Civil Rights Act of 1991. By order entered

December 21, 1992, the original “petition” and the

action for damages were consolidated. Pet. App. 6a-7a.

On August 30, 1993, the court of appeals reversed the

district court’s indefinite continuation of the TRO

and remanded for proceedings on petitioner’s request

for an injunction, but that request became moot when

petitioner resigned her position. Jd. at 6a; Hudson v.

Barr, 3 F.3d 970, 973-976 (6th Cir. 1993). In October

1993, petitioner amended her complaint to include a

claim for constructive discharge and front pay. Pet.

App. 7a.

3. Following this Court’s decision in Landgraf v.

USI Film Products, 511 U.S. 244 (1994), the district

court determined that petitioner’s claims arising out

of events that had occurred before November 21, 1991,

the effective date of the Civil Rights Act of 1991,

would be tried to the court, and that those claims

arising out of events after that date would be tried to

a jury. At the close of the trial, the case was sub-

mitted to the jury on special interrogatories on a

form captioned solely as “No. 3:92-ev-737,” the docket

number assigned to petitioner’s October 27, 1992,

complaint. On October 14, 1994, the jury returned a

verdict in favor of petitioner. The jury found that the

Department of Justice had discriminated against

petitioner on the basis of sex during the period after

November 20, 1991, that the Department had unlaw-

fully retaliated against her during the same period,

and that she had been constructively discharged from

her employment because of her sex and/or in

retaliation for having made and pursued her claims of

employment discrimination. The jury awarded

$250,000 in compensatory damages for the sex dis-

6

crimination, $500,000 in compensatory damages for

the retaliation, and $750,000 in compensatory damages

for the constructive discharge. Pet. App. 132a-134a.

The district court reduced the jury’s award to

$300,000, based on its construction of the cap on

compensatory damages set forth in 42 U.S.C.

1981a(b)(3)(D). Pet. App. 134a.

On August 10, 1995, the court entered an order

rejecting all of petitioner’s claims based on conduct

before November 21, 1991. Pet. App. 76a-129a. The

court found that the Department of Justice had

neither discriminated against petitioner on the basis

of sex nor unlawfully retaliated against her before the

effective date of the 1991 Act; it upheld the Depart-

ment’s proffered reasons for its adverse personnel

actions against petitioner as legitimate and nondis-

criminatory (7d. at 90a) and rejected petitioner’s

testimony as not credible (7d. at 92a).

With respect to petitioner’s request for reinstate-

ment or front pay based on the violations found by the

jury, the court ruled that reinstatement was not

appropriate in light of the hostility between peti-

tioner and her employers, the need to displace an

innocent third party to find a position for petitioner,

petitioner’s success in finding other work, and the

Department’s “genuine dissatisfaction” with peti-

tioner’s job performance. Pet. App. 112a. As for

petitioner’s request for front pay, the district court

awarded petitioner, in its back pay award, $164,330.96

from the date of her resignation to the August 17,

1995 date of judgment—a period of almost two years.’

' In her complaint, petitioner requested five years of front

pay “for a period of five years beginning September 4, 1993”—

the date of her resignation. Second Am. Compl., Prayer for

Id. at 110a-1lla. The court delined, however, to award

front pay from the date of the judgment forward,

ruling that such front pay was not necessary to make

petitioner whole. Jd. at 11la-115a. The court stressed

that petitioner had gone into the private practice of

law immediately upon leaving the U.S. Attorney’s

Office, that “other employment opportunities would

have been available to plaintiff,” that petitioner had

“approximately 20 years, or more of earning power

left,” and that petitioner had “fail[ed] to present proof

that she makes any less in private practice than

she did as an AUSA.” 7d. at 118a-1l4a. The court

therefore concluded that “({aJn award of front pay

would, in essence, give plaintiff a windfall of having

two salaries—one from her former position as AUSA

and one from her present position as a practicing

attorney in a private law firm.” Jd. at 115a. In such

circumstances, the court held, “neither rein-

statement nor an award of front pay are necessary in

order to make plaintiff whole as a consequence of her

constructive discharge.” Jbid.

On January 16, 1996, the district court partially

granted and partially denied petitioner’s request for

an award of costs and attorney’s fees. Pet. App. 35a-

75a. As is pertinent here, the court rejected peti-

tioner’s argument that fees for her Washington, D.C.,

counsel should be awarded based on prevailing rates

in Washington, and instead awarded fees based on the

local market rate in Knoxville. Jd. at 54a. The court

also disallowed compensation for some hours of work

Relief 4(i). The district court's “back pay” award from the

date of her resignation to the August 17, 1995 date of the

judgment thus awarded almost two years of the five years’

front pay demanded by petitioner.

8

performed by petitioner’s counsel because it related

to the preparation of proposed findings of fact and

conclusions of law on the non-jury portion of the trial,

in which petitioner did not prevail. Jd. at 59a-6la.

Finally, the court found that some representation by

one of petitioner’s attorneys was duplicative and

mostly “behind the scenes,” and therefore reduced the

amount of compensable time for that attorney’s rep-

resentation by 25%. Id. at 67a-68a.

4. The court of appeals affirmed. First, the court

held that the cap on damages in Title VII actions

imposed by 42 U.S.C. 198la(b)(3)(D) applies to limit

the total amount of damages that may be awarded to a

complainant in a lawsuit, regardless of the number of

claims presented, rather than (as petitioner argued)

the amount of damages that may be awarded on each

claim presented by a plaintiff within any Title VII

suit. Pet. App. 9a-16a. Noting that “[uJnder the plain

language of the statute, the cap on compensatory

damages applies to each complaining party in an

‘action,’ the court concluded that this language made

clear that “the § 198la caps apply to each party in an

action, not to each claim, and there is nothing in the

language of the statute to indicate otherwise.” Jd. at

lla-12a In so holding, the court refused to accord

weight to the contrary interpretation set forth in an

amicus curiae brief filed by the Equal Employment

Opportunity Commission (EEOC) in an Eleventh

Circuit case, stating that “the EEOC’s interpretation

is entitled to no deference when its position is at odds

with the plain language of the statute.” Jd. at lda.

The court of appeals also affirmed the district

court’s denial of reinstatement and front pay. Pet.

App. 16a-22a. With respect to reinstatement, the

court sustained the district court’s findings that peti-

tioner had found other work, that the working rela-

tionship between her and the Department of Justice

had been destroyed, and that the Department was

“legitimately dissatisfied” with petitioner. Jd. at 18a.

As for front pay, the court found petitioner’s chal-

lenge to its denial to be “moot in light of [its] holding

that the cap on compensatory damages set forth in

Section 198la of the 1991 Civil Rights Act applies to

lawsuits as a whole and not merely to claims.” Pet.

App. 18a-19a. The court emphasized that the damages

cap in Section 198la(b)(3)(D) imposed a $300,000 limit

(in this case) on any compensatory damages awarded

for, among other things, “future pecuniary losses.”

Id. at 19a. Relying on dictionary definitions of the

words “future pecuniary losses” (id. at 20a), the court

concluded that front pay is a type of compensatory

damages for future pecuniary losses because “it is a

monetary award for the salary that the employee

would have received but for the discrimination.” Jd.

at 2la.

The court acknowledged that many courts, include-

ing the Sixth Circuit, had awarded front pay as a

remedy for discrimination before the enactment of the

Civil Rights Act of 1991. The court also noted that

the 1991 Act “excludes from the Act’s damages cap

‘back pay, interest on back pay, or any other type

of relief authorized under section 706(g) of the Civil

Rights Act of 1964.” Pet. App. 20a (emphasis

omitted) (quoting 42 U.S.C. 198la(a)(1)). The court

ruled, however, that, in contrast to back pay, front pay

“is not specifically ‘authorized’ by § 706(g).” Id. at

2la. It also noted that in the Sixth Circuit, the

amount of front pay (as opposed to its availability) had

been viewed “as a legal, rather than an equitable,

10

remedy” and thus a question for the jury rather than

the court. Jbid.

Finally, the court rejected petitioner’s challenges

to the award of attorney’s fees. Pet. App. 30a-34a. It

upheld the district court’s decision to compensate

Washington, D.C., counsel at the market rate in

Knoxville, finding that “it is not an abuse of discre-

tion for a [district] court to apply local market rates.”

Id. at 32a. The court also upheld the court’s dis-

allowance of fees for post-trial work done on the

nonjury portion of the case, since “[iJt is beyond

peradventure that a District Court may exclude time

for work on a claim on which the plaintiff did not

prevail.” Jd. at 33a. And it affirmed as not clearly

erroneous the 25% reduction of fees for one attorney

as duplicative. Jd. at 33a-34a.

ARGUMENT

1. Petitioner contends (Pet. 13-19) that the court

of appeals erred in concluding that the cap on damages

in Title VII actions imposed by 42 U.S.C. 198la

applies to limit the total damages that may be awarded

for all of the claims of each complaining party brought

in any lawsuit, rather than the damages for each

individual claim of each party. The decision of the

court of appeals is correct, and it does not conflict

with any decision of this Court or any other court of

appeals. Further review is therefore not warranted

on this contention.

Section 198la(a)(2) provides: “Jn an action brought

by a complaining party under the powers, remedies,

and procedures set forth in [42 U.S.C. 2000e-5 and

2000e-16], against a respondent who engaged in unlaw-

ful intentional discrimination * * * the complaining

party may recover compensatory and punitive dam-

11

ages as allowed in subsection (b) of this section.”

(Emphasis added.) Section 198la(b)(3), in turn, states

that “[t]he sum of the amount of compensatory dam-

ages awarded under this section * * * and the

amount of punitive damages awarded under this

section, shall not exceed, for each complaining party,”

various sums dependent on the size of the defendant

(in this case, $300,000). The court of appeals correctly

concluded that, under the plain meaning of the

statute’s reference to “an action,” the $300,000 limit

applies to limit the total damages for all the claims

brought in any. lawsuit (or “action”) against a

defendant. The limit does not, as petitioner contends,

merely limit the amount of damages that may be

awarded for each claim pled and proven against the

defendant in a lawsuit, regardless of the number of

such claims.

“In construing a federal statute it is appropriate to

assume that the ordinary meaning of the language

that Congress employed ‘accurately expresses the

legislative purpose.” Mills Music, Inc. v, Snyder,

469 U.S. 153, 164 (1985). The ordinary meaning of the

word “action,” in the context of federal civil litiga-

tion, is simply a “civil action,” 7.e., a lawsuit. An

“action” is generally defined as “a suit brought in a

court.” Black’s Law Dictionary 28 (6th ed. 1991).

The Federal Rules of Civil Procedure similarly use

the term “action” or “civil action” to describe any

lawsuit presenting claims for relief. See Fed. R. Civ.

P. 2 (“There shall be one form of action to be known as

‘eivil action.’”); Fed. R. Civ. P. 3 (“A civil action is

commenced by filing a complaint with the court.”).

Similarly, Title VII provides that “a civil action may

be brought against the respondent named in the

charge” of unlawful discrimination, 42 U.S.C. 2000e-

12

5(f)(1), and that a federal employee “may file a civil

action as provided in [Section] 2000e-5,” 42 U.S.C.

2000e-16(c). Because Congress is presumed to have

been aware of this legal background, it should also be

presumed to have intended that the word “action” be

taken to mean a “lawsuit,” and that the caps on dam-

ages “[iJn an action” apply to each lawsuit, rather

than each claim for relief. *

Petitioner argues, however, that the term “action”

is ambiguous, and thus resort must be had to the leg-

islative history and “authoritative interpretations.” of

statute. Pet. 14-15. Even if the statutory cap lan-

guage were ambiguous, the ambiguity would be re-

solved in favor of a narrow construction because

the provisions for damages in Section 198la apply to

the federal government as well as private parties.

The cap on compensatory damages is a limitation on

the waiver of the government’s sovereign immunity

and, as such, must be strictly construed. See Lane v.

Pera, 518 U.S. 189, 192 (1996). In a context similar to

this one, this Court rejected a broad construction of a

fee provision in the Clean Air Act because the statute

“affects fee awards against the United States, as well

as against private individuals.” Ruckelshaus v.

Sierra Club, 463 U.S. 680, 685 (1983).

The legislative history of the 1991 Act provides

little support for petitioner’s reading of the statute in

any event. As an initial matter, this Court has

* As the court of appeals also observed (Pet. App. 12a n.4),

its construction of the damages caps is consistent with case law

holding that Section 1981a limits the total of both compensatory

and punitive damages under a single cap. See EEOC v. AIC

Sec. Investigations, Ltd., 55 F.3d 1276, 1281 (7th Cir. 1995);

Hogan v. Bangor & Aroostook R.R., 61 F.3d 1034, 1037 (1st

Cir. 1995).

13

cautioned that the legislative history of the 1991 Act

is, in many respects, an unreliable guide to inter-

pretation of the Act. See Landgraf v. USI Film

Products, 511 U.S. 244, 263 n.15 (1994). The legis-

lative history cited by petitioner is, moreover, not

probative on the question at hand. Petitioner relies,

for example, on an “interpretive memorandum”

submitted by five sponsors of the bill, which states

that the caps also are placed on “the damages avail-

able to each individual complaining party for each

cause of action brought under section 1981[a].” 137

Cong. Rec. H9527 (daily ed. Nov. 7, 1991); id. at

S15,484 (daily ed. Oct. 30, 1991). As the court of

appeals concluded, however (Pet. App. 14a), that pas-

sage in the memorandum was not addressing the

question presented here, but was “simply making it

clear that the § 1981a caps did not apply to claims

[under 42 U.S.C. 1981] so that an award for sex

discrimination under § 1981a would not cap an award

for race discrimination under § 1981.” Petitioner also

relies (Pet. 16-17 n.9) on floor remarks made by

Representative Edwards after the 1991 Act was

passed by the House but before it was signed by the

President. The court of appeals correctly rejected

reliance on those post-passage “isolated remarks of a

single member of Congress.” Pet. App. 14a (citing

Landgraf, 511 U.S. at 263 n.15); see United States v.

Texas, 507 U.S. 529, 535 n4 (1993) (noting that

“subsequent legislative history” is a hazardous basis

for inferring congressional intent); Chrysler Corp v.

Brown, 441 U.S. 281, 311 (1979) (“The remarks of a

single legislator, even the sponsor, are not con-

trolling in analyzing legislative history.”).

Petitioner also relies (Pet. 17) on an amicus curiae

brief filed in the Eleventh Circuit by the Equal Em-

14

ployment Opportunity Commission (EEOC) in Rey-

nolds v. CSX Transportation, Inc., No. 95-3364 (filed

May 23, 1996). The position taken in that brief,

however, has been rejected by the Solicitor General,

who has exclusive litigation authority to present the

position of the United States in this Court, absent

express authorization otherwise (which does not

exist here). See 28 U.S.C. 518(a); FEC v. NRA Politi-

cal Victory Fund, 513 U.S. 88 (1994). The position

articulated in this brief is that of the United States.

The position previously articulated by the EEOC in

Reynolds, therefore, is not owed deference by this

Court.*

2. Petitioner contends (Pet. 9-10) that the court of

appeals erred in ruling that an award of front pay is

compensation for “future pecuniary losses,” and is

therefore subject to the damages caps of Section

198la. Petitioner also argues that this ruling con-

flicts with the Seventh Circuit’s decision in Williams

v. Pharmacia, Inc., 137 F.3d 944 (1998). The position

adopted by the court of appeals on this issue was not

advanced by the government below. Nonetheless, this

Court’s review of this issue would not be appropriate

in this case, because the ruling below does not

conflict with Williams on the precise front pay issue

presented here, and because the district court’s denial

of front pay is independently sustainable on other

grounds.

Contrary to petitioner’s contention, the Sixth Cir-

cuit’s ruling that front pay is subject to the damages

* The Eleventh Circuit did not reach the issue of the

damages caps in its decision in Reynolds. See Reynolds v. CSX

Transportation, Inc., 115 F.3d 860 (1997), vacated, 118 S. Ct.

2364 (1998).

15

caps of Tit'e VII does not conflict with anything in

the Seventh Circuit’s decision in Williams, which did

not address that issue. In Williams, the court ruled

that a district court may award front pay in addition

to damages awarded by the jury for lost future

earnings. The court reasoned that the two forms of

compensation redress different injuries; front pay

compensates the plaintiff for the immediate effects of

the unlawful termination of her past employment,

whereas an award for lost future earnings may com-

pensate her for earning capacity lost through dam-

ages to her professional standing and reputation. 137

F.3d at 953. And while front pay awards are generally

limited in duration to the time in which the plaintiff is

unable to secure employment, an award for lost future

earnings reflects “[t]he reputational or other injury

that * * * can stay with the employee indefinitely.”

Id. at 954.

The Williams court did not address the issue de-

cided by the court below, namely, whether front pay

is a kind of compensation for “future pecuniary

losses” that is subject to the damages cap of Section

198la(b)(3). It is true that, in Williams, the Seventh

Circuit affirmed a judgment that included both a

damages award capped at $300,000 and an award of

front pay. 137 F.3d at 947-948. It appears, however,

that the defendant in Williams did not argue that the

damages cap should cover any award for front pay.

Accordingly, the Williams decision does not consti-

tute circuit precedent on that question.

In addition, this particular case is ill suited for

review of the front pay issue because the district

court’s decision to deny front pay was clearly not an

abuse of discretion under the well settled standards

applicable to equitable relief under Title VII. See

16

Shore v. Federal Express Corp., 777 F.2d 1155, 1159

(6th Cir. 1985) (front pay “does not lend itself to a per

se rule” but “must be governed by the sound

' discretion of the trial court and may not be appro-

priate in all cases”).

“Front pay gives the employee the earnings she

would have received had she been reinstated to her old

job. But since the employee has a duty to mitigate

damages, she may have taken another job in the

interim, [and] * * * [gliving the employee the

earnings from her old job without taking account of

her earnings from her new (or expected) job would

result in overcompensation.” Williams, 137 F.3d at

953-954 (citation omitted). The district court found,

and petitioner does not dispute, that petitioner se-

cured other employment immediately upon resigning

her job as an Assistant U.S. Attorney, going “into

private practice in Knoxville as a partner in the law

firm of Ailor, Andrews & Hudson.” Pet. App. 88a.

The district court also noted that “(t]he record estab-

lishes that other employment opportunities would

have been available to [petitioner],” id. at 113a, that

“there has been no proof that [petitioner] needs finan-

cial assistance to help her bridge the gap between her

former and present jobs,” and that petitioner had

failed “to present proof that she makes any less in

private practice than she did as an AUSA,” id. at

114a. Thus, “(t]here is no evidence in the record that

the termination of [petitioner’s] federal employment

has caused her any loss of income.” Jd. at 114a-115a.

Because the purpose of front pay is to rectify the

harm caused by discrimination, Shore, 777 F.3d at

1159, such an award was not appropriate in this case.

In addition, front pay is generally viewed as a

substitute for reinstatement, where reinstatement is

17

unavailable for various reasons such as_ hostility

between the parties or the need to protect an innocent

third party. See Shore, 777 F.3d at 1159. Where

reinstatement would be improper because of an em-

ployer’s legitimate dissatisfaction with the employee,

and in particular because of the employee’s mis-

conduct, such that the employer would terminate the

employee on lawful grounds, a district court could in

some circumstances be justified in denying front pay

as well as reinstatement. See McKennon v. Nash-

ville Banner Publishing Co., 513 U.S. 352, 361-362

(1995) (emphasizing that, “[{iJn determining appropri-

ate remedial action, the employee’s wrongdoing be-

comes relevant,” and that, “as a general rule in cases

[involving employee wrongdoing], neither rein-

statement nor front pay is an appropriate remedy”).

The district court’s findings in this case that peti-

tioner had engaged in misconduct (see Pet. App. 84a-

7a, 99a, 104a, 106a) are more than sufficient to justify

a denial of front pay.

3. Petitioner seeks review of the court of appeals’

decision affirming various rulings by the district

court on attorney’s fees. None of those rulings, how-

ever, implicates any conflict among the circuits or

divergence from any decision of this Court. Fur-

thermore, the fee issues are entirely fact-bound and

peculiar to this case. District court decisions on

attorney’s fees are subject to review only for abuse of

discretion, see Pierce v. Underwood, 487 U.S. 552,

557-563 (1988); Hensley v. Eckerhart, 461 U.S. 424, 437

(1983), and the court of appeals faithfully applied that

standard, Pet. App. 32a-34a. Further review is there-

fore not warranted.

Petitioner first contends that the district court

should have awarded fees for her Washington, D.C.,

18

attorneys at the prevailing market rate in Washing-

ton rather than that in Knoxville, where the trial

took place. Prevailing parties in Title VII cases are

entitled only to “reasonable” attorney’s fees, see

Hensley, 461 U.S. at 4385; Pennsylvania v. Delaware

Valley Citizens’ Council for Clean Air, 478 U.S. 546,

560-561 (1986), and reasonable fees “are to be calcu-

lated according to the prevailing market rates in the

relevant community.” Blwm v. Stenson, 465 U.S. 886,

895 (1984). That is precisely the test applied by the

district court. Pet. App. 53a. Title VII does not re-

quire that plaintiffs be able to obtain the most expen-

sive counsel available nationwide; a reasonable fee is

merely one that is “adequate to attract competent

counsel.” Blum, 465 U.S. at 897. Although there may

be circumstances in which additional compensation is

warranted for particularly expert counsel, petitioner

does not contend that “competent” Title VII counsel

was unavailable in the Knoxville, Tennessee area, and

the district court found that competent local counsel

was available, see Pet. App. 54a. Use of local market

rates was therefore not an abuse of discretion.

Petitioner further contends that the district court

abused its discretion in reducing the fees of one of pe-

titioner’s attorneys by 25% for duplication of effort.

The district court’s factual determination on this

issue is entitled to great weight, however, for the

court observed the trial proceedings and was in the

best position to assess what was duplicative and what

was not. See Pierce, 487 U.S. at 560. There is also no

merit to petitioner’s challenge to the trial court’s

refusal to award her attorney’s fees for post-trial

work in the case. The district court emphasized that

the only post-trial work for which it refused to award

fees was the work that related “to the preparation of

19

[petitioner’s] proposed findings of fact and con-

clusions of law in the non-jury portion of the trial in

which plaintiff did not prevail.” Pet. App. 59a. “It is

beyond peradventure that a District Court may ex-

clude time for work on a claim on which the plaintiff

did not prevail.” Jd. at 33a; see Hensley, 461 U.S. at

436-437 (“[t]he district court may attempt to identify

specific hours that should be eliminated, or it may

simply reduce the award to account for the limited

success”); Farrar v. Hobby, 506 U.S. 103, 114 (1992)

(“We have already observed that if ‘a plaintiff has

achieved only partial or limited success, the product

of hours reasonably expended on the litigation as a

whole times a reasonable hourly rate may be an ex-

cessive amount.’”).

CONCLUSION

The petition for a writ of certiorari should be de-

nied.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

FRANK W. HUNGER

Assistant Attorney General

MARLEIGH D. DOVER

MARK W. PENNAK

Attorneys

AUGUST 1998