Petition for Writ of Certiorari — Dana Corp. v. Newton

No. 967 UVLté€ GS ¢€ MAY = 5 1997

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

DANA CORPORATION PARISH DIVISION,

Petitioner,

Vv.

ROBERT LEE NEWTON,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

SCOTT F. COOPER

(Counsel of Record)

MARK BLONDMAN

BLANK ROME COMISKY & McCAULEY

1200 Four Penn Center Plaza

Philadelphia, PA 19103-2599

(215) 569-5487

Attorneys for Petitioner

DATED: May 5, 1997

SMITH-EDWARDS-DUNLAP COMPANY, 2867 E. ALLEGHENY AVENUE, PHILADELPHIA, PA 19134 (215) 425-6800

QUESTIONS PRESENTED

1. Whether the Court should reconsider and modify the stan-

dard it articulated in Albemarle Paper Co. v. Moody, 422 U.S. 405

(1968) and Christiansburg Garment Co. v. EEOC, 434 U.S. 421

(1978), establishing a “dual” standard for recovery of attorneys’ fees

by a prevailing party under Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. § 2000e-5(k), under which (i) a prevailing em-

ployee “ordinarily” will recover attorneys’ fees, but (ii) a prevailing

employer is held to a heightened standard for recovery of attorneys’

fees, when the “dual” standard is not consistent with the plain

language of §2000e-5(k), should be reconsidered in the context of

the 400% increase in the number of employment discrimination

cases since this Court created the “dual” standard in 1978, and is

inconsistent with Congress’s enactment of the Civil Rights Act of

1991 permitting recovery by prevailing employees of compensatory

and punitive damages.

2. Whether the “dual” standard for awarding attorneys’ fees

under Title VII violates the Fifth Amendment due process rights of

prevailing Title VII defendant-employers.

STATEMENT OF CORPORATE AFFILIATION

FILED PURSUANT TO SUPREME COURT RULE 29.6

_ Pursuant to Rule 29.6 of the Rules of the Court, Petitioner, Dana

Corporation Parish Division, states that it has no non-wholly owned

subsidiaries and no parent company.

ii

TABLE OF CONTENTS

Page

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aa aes 5 buh 66.6 0540.8 40 0 e O00 Vv

TUG h ad ee ee kateeueen¥eeeakss l

STATEMENT OF JURISDICTION .............. cc eceseeees 2

CONSTITUTIONAL AND STATUTORY PROVISIONS

8 ER ta RS a ge 2

I 3

REASONS FOR GRANTING THE PETITION ................ 8

I. THE “DUAL” STANDARD FOR AWARDING ATTORNEYS’

FEES UNDER TITLE VII IS NO LONGER APPROPRIATE

IN VIEW OF CONGRESS’S ENACTMENT OF THE CIVIL

ee ois le iw ad enwe ese veaneeeyacs 9

A. The “Dual” Standard Was Proper When Title VII Was

Exclusively an Equitable Remedy ................... 10

B. Policy Considerations Predating the Civil Rights Act of

1991 Should Not Continue to Control the Interpreta-

CRUE Ge Bree Wee, OO BUTI 2... wc ccc cece cece. 11

C. Jury Trials and the Increased Difficulty of Obtaining

Summary Judgment Further Counsel for Review of

EE I, ED ino ccc ccc bnscesvesieees 13

II. THE “DUAL” STANDARD IS IMPROPER IN VIEW OF THE

400% INCREASE IN EMPLOYMENT DISCRIMINATION

FILINGS SINCE ALBEMARLE AND CHRISTIANSBURG .. 14

iii

TABLE OF CONTENTS—(Continued)

Page

Ill. THE COURT SHOULD RESTORE TITLE VII’S PLAIN LAN-

GUAGE MEANING AND INSTRUCT THE DISTRICT

COURTS TO APPLY A TOTALITY OF THE CIRCUM-

STANCES TEST FOR AWARDING ATTORNEYS’ FEES ... 17

IV. THE “DUAL” STANDARD VIOLATES THE DUE PROCESS

CLAUSE OF THE CONSTITUTION ..................... 20

(AEE ST vce sos PRAT FSO rade eeehaa eee ress eaR eas 23

gg) Ee ere Te ere er re ere yr ry la

iv

TABLE OF AUTHORITIES

CASES Page(s)

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1968) ....... passim

Alyeska Pipeline Service Co. v. Wilderness Soc.,

ges 0 Sh eer ere ae err 10-11, 14, 16

Brown v. Board of Education, 347 U.S. 483 (1954) ........ 14

Christiansburg Garment Co. v. EEOC,

gt ge | ee a rr rer rr re passim

Garcia v. San Antonio Metro. Transit Auth.,

Oe Se EE viens ee caneesae + ereseruiee 14

Fogerty v. Fantasy, Inc., 1148. Ct. 1023 (1994) ....... 3, 9, 17-18

Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994) ............. 13

Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) ............ 8, 11

Hicks v. St. Mary’s Honor Ctr., 509 U.S. 502 (1993) ........ 13

Independent Federation of Flight Attendants v. Zipes,

Pk Wh. Fs ED hp oe bn eas ba va neko eh cseenens 18

Lochner v. People of the State of New York,

Ser Oe ED in Ve cca bee ener euweh ew tenceecn 14

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) .... 13

National League of Cities v. Usery, 426 U.S. 833 (1976) .... 14

Newman v. Piggie Park Enterprises, Inc.,

ee a EE od cae 5 ect oka ve aue wake us 9-12

Patterson v. McLean Credit Union, 491 U.S. 164 (1989) .... 12

Pavelic & LeFlore v. Marvel Entertainment Grp.,

I eee er rere reer rere 18

Pennsylvania v. Delaware Valley Citizen’s Council for

CRON AGF, STO UT. ORO CRUG 055 vc bec ececcese canes 8

TABLE OF AUTHORITIES—(Continued)

CASES Page(s)

Sheridan v. E.I. DuPont de Nemours & Co.,

ee ee CD hips acckeadueveveeabenas 4,13

Tschappat v. Reich, ___ F. Supp. ___, 1997 WL 130719 (D.D.C.

ES ee ere ory ee gy: 16

West Coast Hotel v. Parrish, 300 U.S. 379 (19387) ............

14

STATUTES

Ie rr 18

BPN BE OETA) 2. ccc cece cc ccccerccccocseneveceeeees 2

PRP MID ccc ccc ccccsccesccsceseueecasendeeeeees 18

SPUR UATE) ccccccccsccceecessenesaseueeseeweds 18

ok 5 | PPP eTETPPTeTeTrTeriTrirre err ee 12

NT MEME 6-5 6-006 0.6.00 000600006 00060600000 EuaS 10, 16-18

errr oe 6

42 U.S.C. § 2000e-5(k) 20... eee eee eee i, 3-4, 8, 10-12, 17-18, 20

PR ED nce rec cicesccsenusstedsssebhesensenaes 18

ee evs kacancesénsd he ch eee eueeae aed es 8, 20

OE Ae & Serr er rns 7

PERIODICALS

J. DONAHUE and P. SIEGELMAN, The Changing Nature of Employment

Discrimination Litigation, 43 STANFORD Law REvIEW

GP ne gen en ae a Aa IR FoR rH Bip anaes ewe ae 14

6 EMPLOYMENT DISCRIMINATION Report 141 (Feb. 7, 1996) ........ 14

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

DANA CORPORATION PARISH DIVISION,

Petitioner,

V.

ROBERT LEE NEWTON,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Dana Corporation Parish Division respectfully petitions for a

writ of certiorari to review the judgment of the United States Court

of Appeals for the Third Circuit in this case.

OPINIONS BELOW

The United States Court of Appeals for the Third Circuit (Docket

No. 95-2074) entered a judgment order on February 5, 1997, which is

unreported and is reprinted in the Appendix to this Petition at App.

la.! The February 5, 1997 judgment order, however, did not dispose

of Dana’s appeal. The Court of Appeals entered a subsequent judg-

ment order on February 18, 1997, which also is unreported and

reprinted in the Appendix to this Petition at App. 3a. The November

14, 1995 memorandum decision of the district court, denying Peti-

tioner its attorneys’ fees after the entry of judgment in its favor

‘References to the Appendix of this Petition are abbreviated as “App. __a

including the page number of the Appendix.

(Docket No. 94-CV-4958 (E.D. Pa.)), also is unpublished and is re-

printed at App. 5a.

STATEMENT OF JURISDICTION

Petitioner invokes this Court’s jurisdiction pursuant to 28 U.S.C.

§§ 1254(1). The United States Court of Appeals for the Third Circuit

entered a judgment order on February 15, 1997, which affirmed the

district court’s November 14, 1995, denial of Petitioner’s request for

attorneys’ fees pursuant to 42 U.S.C. § 2000e-5(k).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The following Constitutional and Statutory provisions are in-

volved in this case. Pursuant to United States Supreme Court Rule

1(f), the verbatim text of these provisions is reproduced in the

Appendix to this Petition at pages App. 6a.

United States Constitution, Amend. V.

42 U.S.C. § 2000e-5(k). Attorney’s fee; liability of Com-

mission and United States for costs

42 U.S.C. § 198la. Damages in cases of intentional dis-

crimination in employment

42 U.S.C. § 1988 Proceedings in vindication of civil rights

Fed. R. Civ. P. 54(d) Costs; Attorneys’ Fees.

ED

STATEMENT OF CASE

I. INTRODUCTION

This case places squarely before the Court the issue raised by

Justice Thomas in Fogerty v. Fantasy, 114 S. Ct. 1023, 1035-36, __

U.S. __ (1994) (Thomas, J., concurring): whether this Court’s inter-

pretation of Section 706 of Title Vil of the Civil Rights Act of 1964, as

amended, 42 U.S.C. § 2000e-5(k), in Christiansburg Garment Co. v.

EEOC, 434 U.S. 421 (1978) and Albemarle Paper Co. v. Moody, 422

U.S. 405 (1975), creating a “dual” standard for prevailing Title VII

litigants, should remain the law of the land.’

This case raises an issue of national significance, potentially

involving every employer in the United States with 15 or more

employees, in every segment of the economy and in every industry.

See 42 U.S.C. § 2000e to 2000e-17 (Supp. 1997); U.S. Sup. Ct. R. 10.

Petitioner submits that this Court should grant certiorari to recon-

sider the “dual” standard for awarding attorneys’ fees this Court

articulated almost 20 years ago because Congress’s intervening en-

actment of the Civil Rights Act of 1991 and the explosive growth in

employment-related civil litigation suggests that an evenhanded stan-

dard is more consistent with Congress's intent and would be suffi-

cient to promote the remedial purposes of Title VII.

In the Civil Rights Act of 1991, Congress added to Title VII the

remedies of a jury trial, compensatory and punitive damages. The

availability of these significant new remedies, combined with the

exponential growth in the number of employment discrimination

cases and the equitable relief which always has been available under

“As a prevailing Title VII defendant, Dana’s primary concern is with this

Court’s “dual” or heightened standard articulated in Christiansburg. However,

Christiansburg only created a “dual” standard with respect to the allocation of

attorneys’ fees because of this Court’s earlier pronouncement in Albemarle Paper

Co. v. Moody, 422 U.S. 405 (1968). Thus, Dana submits that this Court should review

simultaneously Christiansburg and Albemarle to determine the appropriate stan-

dard for allocating attorneys’ fees under Title VII for all “prevailing parties.” 42

U.S.C. § 2000e-5(k).

the Act, have undermined the original rationale of Christiansburg

and Albemarle. Prevailing Title VII plaintiffs no longer should be

“presumed” to be entitled to preferential treatment with respect to

the award of attorneys’ fees. Similarly, prevailing Title VII defen-

dants no longer should be presumptively precluded from recovering

attorneys’ fees. Now that Congress has included in Title VII the right

to ajury trial and additional legal remedies for prevailing plaintiffs, a

uniform, evenhanded standard should be applied under which trial

courts may award attorneys’ fees to employers, as well as to employ-

ees, in appropriate cases. This is an issue that the Court is uniquely

situated to remedy.

II. FACTUAL AND PROCEDURAL DEVELOPMENTS

The facts in this case typify those in contemporary employment

discrimination cases. 42 U.S.C. § 2000e-5(k). Newton’s allegations

and conduct demonstrate the ease with which employees can ini-

tiate and prolong litigation, thereby increasing the attorneys’ fees to

employers, even when the employer ultimately prevails. Respon-

dent’s counsel drafted an Amended Complaint, see Fed. R. Civ. P. 8

(short plain statement of allegations), and submitted sworn materi-

als, Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061

(3d Cir. 1996) (en banc), which precluded Dana from obtaining

summary judgment or judgment as a matter of law prior to a jury

trial, even though there was no merit to his claims.

A. Dana Corporation’s Reading, Pennsylvania Operations

and Its Collective Bargaining Agreement.

Dana Corporation Parish Division manufactures frames for au-

tomobiles, trucks, pick-up trucks, side rails for heavy tractor trailer

machinery and other light industrial products. Respondent, Robert

Lee Newton, has been a welder in Dana’s Reading, Pennsylvania

facility since 1988. At its Reading facility, Dana employs approxi-

mately 2,300 employees of which approximately 2,000 are non-man-

agerial employees, including Newton, who are covered by a Collec-

tive Bargaining Agreement (“CBA”) between Dana and the United

ee

oer eeneerrereer

Steelworkers of America, Local Affiliate 3733 (“Union”). At all times

relevant to Newton’s lawsuit, Dana and the Union were parties to a

CBA effective October 29, 1989 through October 30, 1994.

1. Dana’s “Restricted” or “Light Duty” Program.

In April 1993, Dana and the Union reached agreement upon a

“restricted” or “light duty” program for injured workers. This pro-

gram complements Dana’s regular bona fide seniority system under

the CBA by gainfully rehabilitating injured employees, through light,

yet productive, assignments rather than having the employees be

absent from work and collect full workers’ compensation benefits.

Dana’s restricted duty program includes “make-up” work assign-

ments which can be “non-value added” positions and are sensitive to

employees’ medical restrictions and include non-stressful jobs such

as painting parts, sweeping floors and stuffing envelopes.

Employees also may be placed in “value added” positions along

the assembly line. Employees who have injuries also can work in

positions, under the auspices of the restricted duty program, for

which they might not otherwise be assigned due to their union

seniority. Employees in the restricted duty program are paid a con-

tractually negotiated “make-up” wage so that they do not lose any

money by being assigned to the restricted duty program. At all times

relevant to his lawsuit, Newton was, and continues to be, assigned

to the restricted duty program as a “value added” welder.

2. Implementation of Medical Restrictions of

Employees’ Physicians.

To implement the restricted duty program, Dana relies on med-

ical restrictions written by each employee’s treating physician to

determine which positions the employee can perform without risk

of further exacerbating his or her injury. Employees have their own

physicians, rather than a company physician, diagnose the proper

restrictions (e.g., no twisting or excessive lifting). Dana generally

accepts the medical restrictions and updates from the outside health

care provider, even though these physicians rarely visit the plant.

6

After Dana receives a new or revised medical restriction, and

verifies a new position for the employee with the company physi-

cian, the company coordinates the new assignment through the

employee’s union representative and then places the employee into

the new position for the duration of the restriction. The uncontro-

verted testimony at trial confirmed that the restricted duty program

applied to all injured workers, regardless of race.

B. Proceedings Before the Equal Employment Opportunity

Commission.

In 1994, Newton filed a Charge of Discrimination with the Equal

Employment Opportunity Commission (“EEOC”). See 42 U.S.C.

§ 2000e-5(b). Newton alleged, under oath to the EEOC, that Dana

had denied him medical treatment, forced him to work in unsafe

conditions because of his race, and forced him to take positions

which were not assigned to non-African-American employees. New-

ton asked the EEOC for a Notice of Right to Sue Determination

before Dana could file its response with the EEOC or have an

opportunity to conciliate the case. The EEOC issued Newton a

Notice of Right to Sue, without making any finding as to the Charge,

on May 16, 1994.

C. Proceedings in the District Court.

On August 15, 1994, the last day to file suit under Title VII, 42

U.S.C. § 2000e-5, Newton filed a pro se Complaint against Dana in

the United States District Court for the Eastern District of Pennsyl-

vania alleging, inter alia, disparate treatment and a hostile work

environment in violation of Title VII. Newton subsequently obtained

counsel and filed an Amended Complaint.

1. Respondent’s Dilatory Tactics in Pretrial

Proceedings.

Newton undertook no discovery. Nevertheless his conduct frus-

trated Dana’s ability to promptly and inexpensively resolve this

matter. By way of illustration only, Newton opposed Dana’s Motion

to transfer the case to a district court judge sitting in Reading,

Pennsylvania (thereby increasing the costs for both witnesses and

counsel), Newton filed a Motion for Leave to Amend his Complaint

which Dana opposed and the district court denied for “vagueness”.

Once Newton ultimately obtained leave to file an Amended Com-

plaint, he waited until the eve of trial to serve it. Newton failed to

appear at his deposition, thereby forcing Dana to take his Court-

ordered deposition less than two weeks before trial, and he opposed

Dana’s motions for summary judgment. Throughout this process,

Newton made outrageous settlement demands. Unfortunately, prac-

tices and tactics such as these are somewhat common in employ-

ment discrimination cases.

Newton's repeated dilatory conduct ultimately resulted in Dana

expending thousands of dollars on pretrial and post-trial motions,

almost all of which Dana won. For purposes of this Petition, New-

ton’s pre-trial conduct is relevant because although the district court

ruled in Dana’s favor at almost every stage of the proceedings, as did

the jury, Dana was unable to recover any of its attorneys’ fees.

2. The Jury Trial.

Newton's case was tried on August 4, 7 and 8, 1995. On August

8, 1995, the district court charged the jury, and after commenting on

the record that Newton’s evidence of disparate treatment was “very

weak”, submitted all of Newton’s claims to the jury. Within 75 min-

utes (including lunch) the jury returned a verdict in favor of Dana on

all claims. On the same date, the district court entered final judg-

ment in favor of Dana.

3. Respondent’s Post-Trial Motions.

Following the entry of judgment on or around August 18, 1995,

Newton filed a motion for a new trial and judgment notwithstanding

the verdict. Newton’s motion alleged judicial error by the district

court. No supporting memorandum of law was submitted, contrary

to E.D. Pa. Local R. Civ. P. 7.1. No proof of a transcript order was

filed. Dana opposed Newton’s motion for post-trial relief.

4. Dana’s Motion for Attorneys’ Fees.

On August 22, 1995, Dana timely filed a Motion to recover

$50,191.30 in Attorneys’ Fees under Section 706 of Title VII, 42

U.S.C. § 2000e-5(k). Dana’s papers complied with this Court’s re-

quirements in Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) and

Pennsylvania v. Delaware Valley Citizen’s Council for Clean Air,

478 U.S. 546 (1986), properly using a “lodestar method” for calculat-

ing its fees, and submitted appropriate affidavits as to the rates

charged and the prevailing rates in Philadelphia, Pennsylvania, for

employment discrimination litigation.

On November 14, 1995, the district court entered a memoran-

dum opinion and order denying Newton's post-trial motions. The

Court also entered an order, without opinion, denying Dana’s mo-

tion for attorneys’ fees. The district court failed to make any findings

of fact and conclusions of law on Dana’s attorney’s fee application

as required by Fed. R. Civ. P. 54(d).

5. Proceedings in the United States Court of Appeals

for the Third Circuit.

Newton and Dana both filed appeals from the district court’s

orders to the United States Court of Appeals for the Third Circuit,

challenging the entry of judgment and the denial of attorneys’ fees,

respectively. Newton’s appeal was dismissed for lack of prosecution

and then reinstated. On February 18, 1997, the court of appeals

dismissed Newton's appeal on the merits without a written decision

(App. 3a). The court of appeals also dismissed, without opinion,

Dana’s appeal of the denial of its motion for attorneys’ fees.

REASONS FOR GRANTING THE PETITION

This case presents the opportunity to remedy the nationwide

inequity regarding the allocation of attorneys’ fees to “prevailing

parties” in employment discrimination cases, an issue of both statu-

tory and constitutional significance. The “dual” standard of allocat-

ing fees leaves employers, especially small- and medium-sized com-

panies, without adequate means with which to defend themselves

against the increased number of workplace discrimination claims.

Significantly, despite the gravity of this matter, the issue of allocat-

ing attorneys’ fees is not frequently presented to appellate courts.

Of the limited number of Title VII defendants willing to risk the

prohibitive costs of defending a case to a jury, most prevailing Title

VII defendants, having already expended thousands of dollars on the

trial and accompanying motion practice, are disinclined to expend

even more resources pursuing appellate remedies in the hope of

what realistically will be no more than a partial recovery of attor-

neys’ fees.’ Thus, even though there is no split in the Courts of

Appeals, this case presents an issue of the utmost significance and

one that will continue to evade review by the appellate courts unless

this Court reviews the standard it articulated in 1978.

I. THE “DUAL” STANDARD FOR AWARDING ATTORNEYS’

FEES UNDER TITLE VII IS NO LONGER APPROPRIATE

IN VIEW OF CONGRESS’S ENACTMENT OF THE CIVIL

RIGHTS ACT OF 1991

Chief Justice Rehnquist stated that this Court created a “dual”

or heightened standard for prevailing Title VII defendants in Chris-

tiansburg Garment Co. v. EEOC, 434 U.S. 421 (1978) “based on

what we found to be the important policy objectives of the Civil

Rights statutes, and the intent of Congress to achieve such objec-

tives through the use of plaintiffs as private attorney[s] general.”

Fogerty v. Fantasy, Inc., 114 S. Ct. 1023, 1026-27 (1992) (citing

Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968)).

Regardless of whether plaintiffs were to serve as “private attorneys

general”, as described in 1978, the enactment by Congress of the

Civil Rights Act of 1991 makes the “dual” standard for awarding fees

to prevailing parties in Title VII redundant and indeed improper.

‘Similarly, an employer found liable under Title VII is hardly in a position to

challenge the allocation of attorneys’ fees under Albemarle or Christiansburg.

10

A. The “Dual” Standard Was Proper When Title VII Was

Exclusively an Equitable Remedy.

Christiansburg followed a logical evolution of cases interpret-

ing Title VII as it had existed prior to the Civil Rights Act of 1991,

when the Act was primarily equitable in nature. When Congress

enacted the Civil Rights Act of 1964, it included in Section 706 of the

Act language which provided that “the court, in its discretion, may

allow the prevailing party, other than the Commission or the United

States, a reasonable attorney’s fee.” 42 U.S.C. § 2000e-5(k). In enact-

ing this provision, Congress followed the “American Rule,” that each

side bears its own litigation costs absent express statutory authori-

zation to the contrary. See Alyeska Pipeline Service Co. v. Wilder-

ness Soc., 421 U.S. 240 (1975) (reaffirming the “American Rule” prior

to enactment of the Civil Rights Attorneys’ Fees Awards Act of 1976,

42 U.S.C. § 1988).

Beginning in 1968, however, the Court departed from the plain

language of the statute and interpreted the “evenhanded” language

that, subject to the district court’s discretion, a “prevailing party”

may recover its fees, and substantially limited the discretion of the

district courts. In Newman v. Piggie Park Enterprises, 390 U.S. 400

(1968), the Court decided that plaintiffs who obtained injunctive

relief under Title II of the Act “should ordinarily recover an attor-

ney’s fee unless special circumstances would render such an award

unjust.” Piggie Park, 390 U.S. at 402.

In Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975), the Court

applied Piggie Park’s reasoning to Title VII of the Act and held that

prevailing Title VII plaintiffs similarly should “ordinarily” receive

attorneys’ fees under Section 706(k) of Title VII, 42 U.S.C. § 2000e-

5(k), upon successful recovery of back pay, under Section 706(g), 42

U.S.C. § 2000e-5(g), for job- related discrimination.

In Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421

(1978), the Court refused to apply an “evenhanded rule” and held

instead that, unlike prevailing Title VII plaintiffs, prevailing Title VII

11

defendants may recover their attorneys’ fees only “upon a finding

that the plaintiff's action was frivolous, unreasonable, or without

foundation, even though not brought in subjective bad faith.” Jd. at

421. The Court stated:

First, as emphasized so forcefully in Piggie Park, the plain-

tiff is the chosen instrument of Congress to vindicate “a

policy that Congress considered of the highest priority.”

390 U.S. at 402. Second, when a district court awards coun-

sel fees to a prevailing plaintiff, it is awarding them against

a violator of federal law. As the Court of Appeals clearly

perceived, “these policy considerations which support the

award of fees to a prevailing plaintiff are not present in the

case of a prevailing defendant.”

Christiansburg, 434 U.S. at 418. This Court also has noted that the

reason Congress provided for an attorney fee award was to “attract

competent counsel”. Hensley v. Eckerhart, 461 U.S. 441, 444 (1983)

(citing S.Rep. No. 94-1011, p. 6 (1976) (Brennan, J., concurring).

By 1978, the Court had therefore affirmed in Alyeska that the

“American Rule” applied absent statutory language to shift attor-

neys’ fees, but in cases involving employment discrimination it had

created a “bastardized American Rule,” which neither compelled

both sides, as a matter of course, to bear their own fees (“American

Rule”), nor awarded the “prevailing party” its fees under the plain

language of 42 U.S.C. § 2000e-5 (“British Rule”), unless it was the

plaintiff.

B. Policy Considerations Predating the Civil Rights Act

of 1991 Should Not Continue to Control the Interpre-

tation of Title VII, as Amended.

The Court’s reliance on “equitable considerations” for interpret-

ing Title VII during the 1970’s may have fully comported with the

statute’s equitable purpose and limited forms of relief available to

prevailing plaintiffs at that time. Petitioner submits, however, that

12

the one-sided judicially-created restrictions on the discretion of the

district courts to award attorneys’ fees to prevailing employers are

no longer necessary or appropriate in view of the Civil Rights Act of

1991, which substantially expanded the scope of Title VII and pro-

vided plaintiffs with rights of recovery so substantially greater than

before that employees realistically encounter no difficulty in obtain-

ing competent counsel to represent them in these cases.

At the time of Piggie Park, Albemarle and Christiansburg,

Title VII essentially provided employees only the equitable remedies

of back pay and reinstatement. See Albemarle Paper Co. v. Moody,

422 U.S. 405, 415 (1968) (back pay). Indeed, one reading of Chris-

tiansburg suggests that the Court intentionally interpreted § 2000e-

5(k) of Title VII to be an additional penalty for unsuccessful Title VI

defendants. 434 U.S. at 418. The Civil Rights Act of 1991, however,

expressly provided for compensatory and punitive damages in-

cluding “emotional pain, suffering, inconvenience, mental anguish,

loss of enjoyment of life, and other nonpecuniary losses”. 42 U.S.C.

§ 198la(b)(1)-(2). These elements of damage are expressly in addi-

tion to back pay, interest on back pay or front pay previously and

otherwise available under 42 U.S.C. § 2000e-5(g).

In addition, when Congress legislatively overruled this Court’s

decision in Patterson v. McLean Credit Union, 491 U.S. 164 (1989),

holding that plaintiffs could sue under 42 U.S.C. § 1981 for interfer-

ence based upon race both in the formation and implementation of

workplace contracts, Congress removed any statutory cap on the

amount of damages an employee can recover in a properly pled and

proved race discrimination case. 42 U.S.C. §§ 1981(b) and 1981la(b)(4).

Thus, to the extent “equitable” or other factors counseled in favor of

this Court’s defining a “dual” standard for shifting fees to “protect”

prevailing Title VII plaintiffs and “penalize” unsuccessful Title VII

defendants, Congress eliminated the continuing basis for these policy

assumptions by including the remedy of compensatory and punitive

damages in the 1991 Civil Rights Act.

13

C. Jury Trials and the Increased Difficulty of Obtaining

Summary Judgment Further Counsel for Review of

Title VII’s “Dual” Standard.

Moreover, at the time the Court decided Piggie Park, Albe-

marle and Christiansburg, there was no right to a jury trial under

Title VII. The statutory jury trial right now compels employers to

expend resources on the panoply of pre-trial activities associated

with a jury trial that might have been avoided when the district court

could consider the weight of the evidence at each stage in the

proceedings. Now that employers, such as Petitioner, must endure a

jury trial to demonstrate that they are not “violators of federal law”,

as this Court suggested in Christiansburg, and are subject to

compensatory and punitive damages if found liable, this Court’s

judicially created “dual” standard for awarding attorneys’ fees,

respectfully, must be revised.

Further compounding the one-sided nature of the procedures in

these cases, is that despite this Court’s recent teaching with respect

to the burden of production and the propriety of granting summary

judgment in employment discrimination cases, Hicks v. St. Mary’s

Honor Ctr., 509 U.S. 502 (1993), the Courts of Appeals have narrowly

construed Hicks and blunted the effectiveness of summary judg-

ment as a means of terminating unmeritorious claims prior to a full

trial. By way of example last year, the Court of Appeals for the Third

Circuit in Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061

(3d Cir. 1996) (en banc) held that an employee need only offer

evidence to suggest that the employer’s proffered non-discrimina-

tory reason is untrue in order to ultimately prevail at trial and a

fortiori survive a defense motion for summary judgment. Jd. at

1067; see also Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994) (plaintiff

must offer evidence only to raise material issue of fact as to defen-

dant’s proffered reason to defeat summary judgment). Thus, once a

plaintiff establishes a prima facie case under McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802 (1973), and its progeny, it is

practically speaking impossible for Title VII defendants to resolve

litigation without submitting to a jury or acquiescing to settlement.

14

II. THE “DUAL” STANDARD IS IMPROPER IN VIEW OF THE

400% INCREASE IN EMPLOYMENT DISCRIMINATION

FILINGS SINCE ALBEMARLE AND CHRISTIANSBURG

This Court has often reconsidered its precedents when signifi-

cant changes have occurred that make modification of rules appro-

priate. Indeed, the Court has held that even when stare decisis is at

its zenith, changes in factual situations or the unworkability of a

prior precedent over time may counsel for reconsideration of estab-

lished precedent, even if such precedent was proper at the time it

was announced. Garcia v. San Antonio Metro. Transit Auth., 469

U.S. 528 (1985) (reversing National League of Cities v. Usery, 426

U.S. 833 (1976)); Brown v. Board of Education, 347 U.S. 483 (1954)

(reversing “separate but equal” policy in education); West Coast

Hotel v. Parrish, 300 U.S. 379 (1937) (supporting minimum wage

and reversing Lochner v. People of the State of New York, 198 U.S. 45

(1905)). Significant changes have occurred in the nature of the

remedies permitted under Title VII. The number of claims actually

filed and the ease with which plaintiffs can secure competent coun-

sel in Title VII cases make appropriate reconsideration of the “dual”

standard.

The United States Court Administrator’s Office has documented

a 400% increase in the number of employment discrimination cases

between 1978 and 1996 compared with a federal court case filings

increase of only 125% from 1970 through 1989. See J. DoNAHUE and P.

SIEGELMAN, The Changing Nature of Employment Discrimination

Litigation, 43 STANFoRD Law Review 983 (1991).‘

‘The number of Charges of Discrimination filed with the EEOC in 1996 in-

creased to approximately 98,000, from approximately 64,000 in 1991. 6 EmpLoyMENT

DISCRIMINATION Report 141 (Feb. 7, 1996). These statistics understate the dimension

of this increase and the burden on employers because the foregoing statistics do

not account for the increased number of cases involving state anti-discrimination

laws, brought either in state court or brought in federal court pursuant to 28 U.S.C.

§ 1367, in which courts frequently follow the Court's disposition of attorneys’ fees

requests under Title VII.

15

| Year | ‘Cases Filed Year | ‘Cases Filed

1978 5,504 1992 10,771

1979 5,477 1993 13,650

1980 5,017 | 1994 16,623

1985 8,082 1995 20,579

1990 8,413 1996 23,037

1991 8,140

Not only has the growth in the number of cases increased, the

financial exposure employers face also has increased. The following

statistics from the Court Administrator’s Office chronicle the in-

creased demands made by and verdicts in favor of employee claims.°

Plaintiff's Average Plaintiff's Average

Year Demand Award Demand Award

(Non-Jury) (Non-Jury) (Jury) (Jury)

1983 $100,000$ 20,500 $100,000 $27,000

1985 $100,00 $33,500 $250,000 $61,500

1987 $225,000 $33,000 $400,000 $99,500

1989 $200,000 $46,000 $250,000 $166,500

1991 | $150,000 $53,000 $150,000 $225,000

1993 $180,000 $47,500 $300,000 $97,500

1995 $300,000 $100,000 $300,000 $101,000

‘These statistics are derived from Case Category 442 “Civil Rights—Employ-

ment”, as tracked by the Court Administrator’s Office based on new Complaint

filings. While these numbers do not indicate the number of Title VII claims, as

compared to other federal employment statutes, the numbers underscore the growth

in exposure to employers. Moreover, the Americans with Disabilities Act and the

Age Discrimination in Employment Acts, contain substantially similar fee-shifting

language.

16

The explosion in employment discrimination cases has alarmed

not only employers, but the lower federal judiciary. In a recent

opinion, district court Judge Sporkin lamented the fact that full

trials were required in almost all employment discrimination cases

and urged relief for the district courts due to the excessive employ-

ment litigation:

This case shows once again the need to adjust our anti-

discrimination laws. The evidence needed to make a prima

facie case is much too low. It seems that almost anyone not

selected for a job can maintain a court action. It is for this

reason that the federal courts are flooded with employ-

ment cases. We are becoming personnel czars of virtually

every one of this nation’s public and private institutions.

The drafters of the original legislation could never have

intended the resulting consequences from what they

deemed to be necessary progressive legislation.

Tschappat v. Reich, ___ F. Supp. __, 1997 WL 130719 (D.D.C. Mar.

18, 1997). (Sporkin, J.). As employers are confronted with increasing

numbers of cases, some of dubious merit, increased difficulty in

obtaining summary judgment and heightened penalties for violating

Title VII, they increasingly must defend themselves in court. The

standards articulated 20 years ago simply are no longer closely

attuned to the realities of this kind of litigation.

This Court should return the awarding of attorneys’ fees to the

discretion of the district court, which is uniquely situated to assess

both the weight of the evidence and the conduct of the litigants and

counsel, with instruction that the “American Rule,” as described in

Alyeska Pipeline Service Co. v. Wilderness Soc., 421 U.S. 240 (1975),

and its progeny, generally should apply, and that both Title VII

parties have equal standing to apply for attorneys’ fees. This Court

17

should grant review to exercise its supervisory powers over the

lower courts and rectify the imbalance in employment litigation.

III. THE COURT SHOULD RESTORE TITLE VII’S PLAIN LAN-

GUAGE MEANING AND INSTRUCT THE DISTRICT

COURTS TO APPLY A TOTALITY OF THE CIRCUM-

STANCES TEST FOR AWARDING ATTORNEYS’ FEES

Congress enacted an “evenhanded” allocation of attorneys’ fees

to “prevailing” Title VII litigants within the discretion of the district

court. The Court should grant review to reinstitute the plain lan-

guage interpretation of Section 706 of the Civil Rights Act of 1964, as

amended, 42 U.S.C. § 2000e-5(k) and 42 U.S.C. § 1988, and return to

the district courts discretion to enter attorney fee awards in employ-

ment cases.°®

The Court has made clear that the modern, and preferred, meth-

odology of statutory construction is to interpret statutes according

to their plain language meaning. See Leatherman v. Tarrant County

Narcotics Intel. Coord. Unit, 507 U.S. 163 (1993) (abandoning years

of judicially-created heightened pleading requirements for cases

brought under 42 U.S.C. § 1983); Fogerty v. Fantasy, 114 S. Ct. 1023,

*Petitioner acknowledges that the standards for attorney fee shifting provi-

sions under 42 U.S.C. §§ 1981, 1983, 1985 and 42 U.S.C. § 2000e-5(k) frequently are

the same. This Petition, however, seeks review only of the standard applied in

employment discrimination cases. Whether suits against government entities, where

financial concerns are not the same, for violations of rights protected under 42

U.S.C. § 1983 should have the same standard for allocating fees is a question not

presented by this case.

18

__ U.S.__ (1994) (“prevailing party” under Copyright Act should not

employ “dual” standard based on status of party).’

Justice Thomas’ comments on the necessity of a “plain mean-

ing” interpretation of the fee-shifting provisions of Title VII under-

score why this Court should grant review of the present “dual”

standard.

The Court’s analysis [in Fogerty] rests on the mistaken

premise—a premise implicit in Christiansburg—that

whether we construe a statute in accordance with its plain

meaning depends upon the statute’s policy objectives and

legislative history. Although attorney’s fee provisions may

be interpreted “in light of the competing equities that Con-

gress normally takes into account,” Zipes, supra, 491 U.S.,

at 761, those “equities” cannot dictate a result that is con-

trary to the statutory language. “Our task is to apply the

test, not to improve upon it.” Pavelic & LeFlore v. Marvel

Entertainment Grp., 493 U.S. 120, 126 (1989). When the

text of the statute is clear, our interpretive inquiry ends.

Fogerty v. Fantasy, Inc., 114 S. Ct. 1023, 1035-36 (Thomas, J., con-

curring) (citing Independent Federation of Flight Attendants v.

Zipes, 491 U.S. 754, 761 (1989)).

"Interestingly, the Fair Labor Standards Act, 29 U.S.C. § 216(b), the Family and

Medical Leave Act, 29 U.S.C. § 2617(a)(3) and the Clayton Act, 15 U.S.C. § 15(a)

contain language which mandate fee shifting to prevailing plaintiffs. The Fair

Housing Act, 42 U.S.C. § 3612(c), contains language which suggests an award only

for prevailing plaintiffs while Title VII and 42 U.S.C. § 1988 suggest an “evenhanded”

discretionary standard for either party. Congress has never adopted a statutory

scheme that required or mandated payments to prevailing defendants. See Chris-

tiansburg, 434 U.S. at 415-16. While Dana submits that the mandatory fee shifting

provisions for plaintiffs, as contained in the FLSA or the FMLA, are similarly

violative of the due process clause, for the reasons set forth at pages 20-21 of this

Petition, those statutes demonstrate that when Congress wants to award fees only

to prevailing plaintiffs, it uses language different than that contained in 42 U.S.C.

§ 2000e-5(k).

CNN MM er rs BA

19

Restoring the plain language meaning of Title VII's fee-shifting

provisions will not leave the district courts without direction from

the Court. To the contrary, as the Court stated in Christiansburg,

the “question in the case before us is what standard should inform a

district court’s discretion in deciding whether to award attorney’s

fees to a successful Title VII defendant.” 434 U.S. at 416. The present

“dual” standard, under which prevailing employees “ordinarily” are

awarded attorneys’ fees, effectively reads the district court’s discre-

tion out of the statute when a Title VII employer has prevailed.

The Court should grant review (i) to reinstate in Title VII cases

the “American Rule” presumption articulated in Alyeska, that par-

ties should normally bear their own costs, and (ii) to articulate a rule

providing that, when a party prevails in an employment discrimina-

tion case, it must first make a showing to overcome the Alyeska

presumption and providing for a “totality of the circumstances test”

to be applied to each discrete component of the litigation. By way of

example, some of the factors for lower courts to apply might include:

e whether the availability of damages, without an award of fees,

is so limited as to frustrate further claims;

e which party “prevailed”;

e the success at trial (or in settlement) compared to the initial

demands;

e the type of fee agreement each party has with its attorneys

and the amount of attorney’s fee allowable on a contingency

basis in the jurisdiction of the case;

e the correlation between the plaintiff's initial allegations and

the amount of corroborative evidence produced through dis-

covery and at trial;

e the success or failure of each motion or other pre-trial activity;

e the amount of time expended on procedural and evidentiary

issues which were actually necessary to advance the litiga-

tion or preserve a party’s interests;

20

e whether either party should have abandoned claims or de-

fenses as the evidence in discovery or at trial suggested the

respective positions were untenable;

e whether either side improperly tried to prolong the litigation;

e the existence or absence of subjective bad faith.*

These, or other similar factors can be utilized by the district court

and developed as an appropriate substitution for the “bright line

rule” practically requiring denial of attorney’s fee applications by

employers who have prevailed in Title VII cases. Indeed, the “dual”

standard not only is contra the plain language of the Act, but it has

become a source of uneven treatment in the courts and a source of

abuse in view of the increased number of Title VII filings. This Court

should grant review to establish a new set of criteria to instruct the

district courts so as to effectuate the plain language of the 42 U.S.C.

§ 2000e-5(k) in view of the Civil Rights Act of 1991.

IV. THE “DUAL” STANDARD VIOLATES THE DUE PROCESS

CLAUSE OF THE CONSTITUTION

This Court, not Congress, must remedy the present imbalance

of attorneys fees in the employment discrimination arena. U.S. Const.,

Amend. V. In addition to the fact that the Christiansburg and Albe-

marle decisions created the “dual” standard for awarding attorneys’

fees from otherwise plain language under Title VII (as compared to

legislation), Petitioner submits that the issue of attorneys’ fees is

one of constitutional significance and not merely statutory

construction.

‘It is submitted that in this case the district court erred in not awarding a

portion of its attorneys’ fees because Newton’s claims that Dana denied him medi-

cal treatment and assigned him to positions due to his race, without taking any

discovery, were “frivolous, unreasonable and without foundation”. See Christians-

burg, 434 U.S. at 421. However, under “a totality of the circumstances” test, the

district court would properly be allowed to consider all of Newton’s conduct during

discovery, the trial and post-entry of judgment and not just the ultimate finding in

the case. Fed. R. Civ. P. 54(d) (specified findings of fact required).

eel SA Met al

Pear ge te enor an

AO NNN ta Si Aaa

21

Congress has the authority, consistent with the due process

clause of the Fifth Amendment, to include in Title VII’s scope of

remedies compensatory and punitive damages as a rational means

for accomplishing the important goals of civil rights. Congress does

not, however, have the right to create such remedies, when their

effect, combined with the Albemarle and Christiansburg standards,

deprives Title VII defendants of the right to a fair defense. See

Chambers v. NASCO, Inc., 501 U.S. 32 (1991) (awarding sanctions

and attorneys’ fees invokes due process concerns); Jn re Eliscu, 139

Bankr. 883 (N.D. Ill. 1992) (same); see also BMW of North America,

Inc. v. Gore, 116 S. Ct. 1589 (1996) (constitutional concerns attach

to procedure by which punitive damages may attach).

This Court stated that a Title VII plaintiff is acting as a “private

attorney general” vindicating a Congressional policy of the “highest

priority.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 416

(1978). Congress advanced this Court’s interpretation of Title VII

when it included in the 1991 Civil Rights Act the right to a jury trial

and compensatory and punitive damages. Petitioner submits, how-

ever, that the “dual” standard this Court created in 1978, now cre-

ates an unconstitutional burden of defending against these enhanced

penalties. Simply put, due process is violated when only one party to

a discrimination action is exposed under the statute to compensa-

tory and punitive damages, but it also is deprived of the right to fully

and vigorously defend against the claims of discrimination. U.S.

Const., amend. V and VII.

Once an employer is forced to defend against compensatory

and punitive damages before a jury, it is entitled to fully and fairly

defend itself without being unilaterally encumbered by the prospect

of paying both its attorneys’ fees and those of the plaintiff while the

plaintiff bears no such burden. The adversarial process is unconsti-

tutionally compromised when a Title VII defendant must continu-

ously evaluate the effect its tactical decisions will have on the plain-

tiffs fees, as may be shifted back to the employer. Consistent with

due process, a Title VII defendant should never have to evaluate

whether to forego certain defenses, discovery or motions because

22

their use during litigation will result in the “doubling” of its attor-

neys’ fees should the plaintiff prevail. The increased severity of

violating Title VII under the Civil Rights Act of 1991, mandates that

employers be allowed to fully and zealously defend themselves with-

out minimizing their defense out of consideration for the plaintiff's

ability to shift and collect attorneys’ fees.* Simply put, Congress

does not have a right to impose financial penalties and interfere

with an employer's fundamental right to defend itself against such

allegations.

The Court should grant review to remedy the constitutional

infirmity of allowing compensatory and punitive damage claims

against Title VII defendants who are not on equal standing with

respect to the allocation of attorneys’ fees as are the charging

plaintiffs.

*This situation becomes particularly acute when the defendant is confronted

with the Hobson's choice of defending against a claim which raises an admitted

technical violation of Title VII, or being compelled into a substantial settlement

because the cost to the Title VII defendant of paying both the plaintiff's and its own

attorneys’ fees is simply excessive. Due process must protect employers of all sizes

who cannot afford to withstand the barrage of lawsuits and the relative inability to

inexpensively terminate these cases.

23

CONCLUSION

The petition for a writ of certiorari to the United States Court of

Appeals for the Third Circuit should be granted.

Respectfully submitted,

SCOTT F. COOPER

(Counsel of Record)

MARK BLONDMAN

FOR PETITIONER DANA CORPORATION

PARISH DIVISION

BLANK ROME COMISKY & McCAULEY

1200 Four Penn Center Plaza

Philadelphia, PA 19103-2599

(215) 569-5487

|

:

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 95-2073 AND 2074

ROBERT LEE NEWTON,

Appellant in 95-2073,

v.

DANA CORPORATION, PARISH DIVISION

Cross-Appellant in 95-2074.

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 94-cv—4958)

(District Judge: Honorable Ronald L. Buckwalter)

Submitted Under Third Circuit LAR34.1(a)

January 30, 1997

la

2a

Before: BECKER and ROTH, Circuit Judges

and BARRY’, District Judge

JUDGMENT ORDER

After consideration of all contentions raised by appellant and

cross-appellant,

IT IS ADJUDGED AND ORDERED that the judgment of the

District Court, entered October 5, 1995, be and is hereby affirmed.

Each party to bear its own costs.

BY THE COURT,

Circuit Judge

Attest:

P. Douglas Sisk, Clerk

Dated: February 5, 1997

‘The Honorable Maryanne Trump Barry, United States District Court Judge,

District of New Jersey, sitting by designation.

3a

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 95-2073 AND 2074

ROBERT LEE NEWTON,

Appellant in 95-2073,

V.

DANA CORPORATION, PARISH DIVISION

Cross-Appellant in 95-2074.

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 94-cv—4958)

(District Judge: Honorable Ronald L. Buckwalter)

Submitted Under Third Circuit LAR 34.1(a)

January 30, 1997

4a

Before: BECKER and ROTH, Circuit Judges

and BARRY', District Judge

JUDGMENT ORDER

After consideration of all contentions raised by appellant and

cross-appellant,

IT IS ADJUDGED AND ORDERED that the judgment of

the District Court, entered November 14, 1995, be and is hereby

affirmed.

Each party to bear its own costs.

BY THE COURT,

Circuit Judge

Attest:

P. Douglas Sisk, Clerk

Dated: February 18, 1997

'The Honorable Maryanne Trump Barry, United States District Court Judge,

District of New Jersey, sitting by designation.

5a

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROBERT LEE NEWTON,

Plaintiff,

v. : CIVIL ACTION

DANACORPORATION PARISH 5 Ne

DIVISION,

Defendant.

ORDER

AND NOW, this 14th day of November, 1995, upon consider-

ation of Defendant Dana Corporation Parish Division’s Motion for

Attorneys’ Fees (Docket No. 51) and Plaintiffs Memorandum of

Law Contra Defendant Dana Corporation Parish Division’s Motion

for Attorneys’ Fees (Docket No. 53), it is hereby ORDERED that

Defendant Dana Corporation Parish Division’s Motion for Attor-

neys’ Fees is DENIED.

BY THE COURT:

RONALD L. BUCKWALTER, J.

6a

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution, Amend. V.

No person shall . . . be deprived of life, liberty, or property,

without due process of law....

42 U.S.C. § 2000e-5(k). Attorney’s fee; liability of Commis-

sion and United States for Costs

In any action or proceeding under this subchapter the court, in

its discretion, may allow the prevailing party, other than the Com-

mission or the United States, a reasonable attorney’s fee (including

expert fees) as part of the costs, and the Commission and the United

States shall be liable for costs the same as a private person.

42 U.S.C. § 198la. Damages in cases of intentional discrimina-

tion in employment

(a) Right of recovery

(1) Civil rights

In an action brought by a complaining party under section 706

or 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5) against a

respondent who engaged in unlawful intentional discrimination (not

an employment practice that is unlawful because of its disparate

impact) prohibited under section 703, 704, or 717 of the Act (42

U.S.C. 2000e-2 or 2000e-3), and provided that the complaining party

cannot recover under section 1981 of this title, the complaining

party may recover compensatory and punitive damages as allowed

in subsection (b) of this section, in addition to any relief authorized

by section 706(g) of the Civil Rights Act of 1964, from the respondent.

* * *

beet

oe eee ed

7a

(b) Compensatory and punitive damages

(1) Determination of punitive damages

A complaining party may recover punitive damages under this

section against a respondent (other than a government, government

agency or political subdivision) if the complaining party demon-

strates that the respondent engaged in a discriminatory practice or

discriminatory practices with malice or with reckless indifference

to the federally protected rights of an aggrieved individual.

42 U.S.C. § 1988 Proceedings in vindication of civil rights

(b) Attorney’s fee

In any action or proceedings to enforce a provision of sections

1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title LX of Public

Law 92-318, the Religious Freedom Restoration Act of 1993, Title VI

of the Civil Rights Act of 1964, or section 13981 [sic] 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.

Fed. R. Civ. P. 54(d) Costs; Attorneys’ Fees.

(2) Attorneys’ Fees.

(A) Claims for attorneys’ fees and related non-taxable

expenses shall be made by motion unless the substantive law gov-

erning the action provides for the recovery of such fees as an ele-

ment of damages to be proved at trial.

(B) Unless otherwise provided by statute or order of

the court, the motion must be filed and served no later than 14 days

after entry of judgment; must specify the judgment and the statute,

rule, or other grounds entitling the moving party to the award; and

must state the amount or provide a fair estimate of the amount

sought. If directed by the court, the motion shall also disclose the

terms of any agreement with respect to fees to be paid for the

services for which claim is made.

8a

(C) On request of a party or class member, the court

shall afford an opportunity for adversary submissions with respect

to the motion in accordance with Rule 43(e) or Rule 78. The court

may determine issues of liability for fees before receiving submis-

sions bearing on issues of evaluation of services for which liability is

imposed by the court. The court shall find the facts and state its

conclusions of law as provided in Rule 52(a), and a judgment shall

be set forth in a separate document as provided in Rule 58.

ee ee eee ts