Copeland v. Marshall

Decision Date02 September 1980
Docket NumberNo. 77-1351,77-1351
Citation205 U.S.App.D.C. 390,641 F.2d 880
Parties23 Fair Empl.Prac.Cas. 967, 20 Empl. Prac. Dec. P 30,038, 20 Empl. Prac. Dec. P 30,039, 24 Empl. Prac. Dec. P 31,214, 205 U.S.App.D.C. 390 Dolores J. COPELAND, Individually and on behalf of the class of all others similarly situated v. F. Ray MARSHALL, Secretary of Labor et al., Appellants.
CourtU.S. Court of Appeals — District of Columbia Circuit

Royce C. Lamberth, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., Washington, D. C., at the time the brief was filed, John A. Terry, William D. Pease, and Neil I. Levy, Asst. U. S. Attys., Washington, D. C., were on brief, for appellants.

Morton Hollander and Leonard Schaitman, Attys., Dept. of Justice, Washington, D. C., also entered appearances for appellants.

John R. Hupper, New York City, with whom John H. Pickering, J. Roger Wollenberg, Gary D. Wilson, Mary A. McReynolds, and John H. Harwood II, Washington, D. C., were on brief, for appellees.

Lloyd N. Cutler, Washington, D. C., also entered an appearance for appellees.

Lutz A. Prager, Washington, D. C., for amicus curiae, Equal Employment Opportunity Commission.

Charles R. Halpern, Washington, D. C., was on brief for amici curiae, American Civil Liberties Union, et al.

David M. Dorsen, Richard Seymour, Richard S. Kohn, Roderic V. O. Boggs, and Ann K. Macrory, Washington, D. C., were on brief for amicus curiae, Lawyers' Committee for Civil Rights Under Law.

James M. Nabrit III, Charles Stephen Ralston, Bill Lann Lee, and Eric Schnapper, New York City, were on brief for amicus curiae, NAACP Legal Defense and Educational Fund, Inc.

Bruce J. Terris, Washington, D. C., was on brief for amicus curiae, Law Office of Bruce J. Terris.

James R. Richards, Washington, D. C., was on brief for amicus curiae, Capital Legal Foundation.

Before WRIGHT, Chief Judge, and McGOWAN, TAMM, LEVENTHAL, * ROBINSON, MacKINNON, ROBB, WILKEY and MIKVA, Circuit Judges.

Opinion filed by Circuit Judge McGOWAN, in which Chief Judge WRIGHT and Circuit Judges SPOTTSWOOD W. ROBINSON, III, MacKINNON, ROBB and MIKVA join.

Opinion concurring filed by Circuit Judge MacKINNON, in which Circuit Judge ROBB joins.

Opinion dissenting filed by Circuit Judge WILKEY, in which Circuit Judge TAMM joins.

ON REHEARING EN BANC

McGOWAN, Circuit Judge:

The court en banc has before it for review an order of the District Court awarding an attorney's fee of $160,000 for the successful prosecution of a gender-discrimination class suit against the United States Department of Labor. 1 A panel of this court earlier reversed the District Court's award and remanded for reconsideration under the novel standards described in its opinion (Copeland I ). 2 The panel denied rehearing, but issued a second opinion (Copeland II ) 3 clarifying the first. We granted rehearing en banc. 4

At issue in this appeal are (1) the standards to be applied in awarding attorney's fees in Title VII suits against the government, and (2) the reasonableness of the District Court's fee award in this case. For the reasons set forth below, we affirm the District Court's award.

I

We cannot determine whether the District Court's fee award was reasonable without examining in some detail the history of this employment discrimination litigation. This chronicle is necessarily lengthy because the lawsuit involved numerous and complex proceedings and maneuverings. We think the very intricacy of the litigation-which was a product, in part, of the government's vigorous and long-continued resistance to the claim asserted against it-is highly relevant to the reasonableness of the fee award.

A. Copeland's Administrative Complaint

Appellee Dolores Copeland, a black woman trained in data processing, joined the Department of Labor (the Department) in 1967. She worked for several years in the Department's Directorate of Data Automation and its predecessor unit (the Directorate) as a GS-13 computer specialist. Copeland thought that her supervisors were unfairly denying her training, promotions, and interesting work. Moreover, she believed that other female Directorate employees were treated similarly.

Pursuant to regulations, Copeland explained her suspicions to a Department Equal Employment Opportunity (EEO) counselor in April, 1973, but no action was taken. She therefore formally complained of discrimination in June. Between July and September, 1973, the Department investigated her complaint. Copeland filed comments and criticisms with respect to the investigation and report.

The Department reopened its investigation in November, and submitted supplemental reports in January and February, 1974. Copeland thought that this supplemental investigation also was inadequate, and therefore began her own investigation. She interviewed numerous current and former Directorate employees, and sought affidavits that would support her allegations of discrimination. In April, 1974, Copeland submitted her findings, and her comments on the Department's supplemental investigation, to the EEO Director.

Assistant Secretary Fred G. Clark submitted his proposed disposition of the complaint in June, 1974. That disposition would have removed all adverse references from her personnel file, but it proposed no other significant relief.

Copeland, still dissatisfied, requested a formal hearing. Her file was sent to the Civil Service Commission for that purpose, but no hearing was held. The file was returned to the Labor Department without explanation.

Assistant Secretary Clark resubmitted his proposed disposition of Copeland's complaint in September, 1974. According to Copeland, she was assured that because she had already requested a hearing, she need not repeat that request.

No hearing was held, however, and the Department issued its final decision on November 7, 1974. The final decision conceded "that a pattern of sex discrimination exists" in the Directorate, and that such discrimination "manifests itself in the lack of leadership responsibility assignments given to qualified women professionals." The decision, however, denied that the Department's refusal to promote Copeland resulted from sex discrimination and asserted that Copeland's personal disagreements with her supervisors were the true cause of her grievances.

The Department in its decision agreed, inter alia, to (1) consider her fairly for future work assignments; (2) clarify her responsibilities and objectively assess her performance of them, (3) expunge adverse evaluations from her personnel file, and (4) monitor future promotion decisions to insure fair treatment for her and other minority employees and women. The Department did not, however, offer retroactive promotion and back pay, or priority consideration for future promotions.

The Department sent Copeland a copy of its decision. However, Copeland's attorneys were not served with a copy, in violation of Department regulations.

B. Litigation in the District Court

Copeland filed this class suit in the District Court on December 13, 1974. The complaint, as amended, alleged three gender discrimination counts, namely, violations of (1) Title VII of the Civil Rights Act of 1964, (2) Executive Order 11478, and (3) rights under the first and fifth amendments to the constitution and 42 U.S.C. section 1985. The complaint also alleged a count of race discrimination under the first and fifth amendments and 42 U.S.C. sections 1981 and 1985.

1. The Government's Motion for Judgment on the Pleadings

The government promptly moved for judgment on the pleadings under a variety of theories. Judgment on the Title VII count was sought because the suit was filed 31 days after Copeland received notice of the final agency decision, not within the 30-day period established by statute. See 42 U.S.C. § 2000e-16(c) (1976). The District Court held, however, that the government's failure to serve Copeland's attorneys with the agency decision tolled the running of the 30-day period. 5

2. The Government's Opposition to Class Certification

Copeland next moved that she represent a class of all past, present, and future female data processing employees in the Directorate. The government, however, moved to remand the case to the Civil Service Commission for additional hearings and, in the alternative, opposed class certification for a variety of reasons.

The District Court denied the motion to remand. The court also certified the case as a class suit, covering all females employed by the Directorate in data processing positions after June 11, 1971.

3. Discovery Skirmishes

Copeland's attorneys meanwhile had propounded a congeries of discovery requests, including interrogatories and requests for production of documents. These discovery requests prompted an acrimonious flurry between the plaintiff class (plaintiff) and the defendant.

The government initially did not comply with these requests. Plaintiff moved to compel discovery. The government then answered some of the interrogatories, but objected to certain others that it thought called for privileged information. The government, accordingly, opposed the motion to compel.

Plaintiff pointed out to the court that the Department had destroyed certain relevant documents 6 and that, in any event, the government's responses to many interrogatories were inadequate. The question of the adequacy of the government's response to discovery requests generally was ultimately resolved by negotiation.

Meanwhile, the government had initiated discovery of its own. The government propounded interrogatories, requested documents, and took depositions. Plaintiff continued the discovery battle by noticing the deposition of an Assistant Secretary of Labor. The government moved for a protective order; this motion was denied.

Discovery continued for several additional weeks. Plaintiff answered defendant's numerous interrogatories, served additional...

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