Parker v. Califano, 76-1416

Citation561 F.2d 320,182 U.S.App.D.C. 322
Decision Date30 June 1977
Docket NumberNo. 76-1416,76-1416
Parties18 Fair Empl.Prac.Cas. 391, 14 Empl. Prac. Dec. P 7637, 182 U.S.App.D.C. 322 Dorothy C. PARKER v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Paul Blankenstein, Atty., Dept. of Justice, Washington, D. C., with whom Rex E. Lee, Asst. Atty. Gen., Earl J. Silbert, U. S. Atty., and Robert E. Kopp, Atty., Dept. of Justice, Washington, D. C., were on the brief, for appellant.

Linda R. Singer, Washington, D. C., for appellee.

John L. Burke, Jr. and Roderic V. O. Boggs, Washington, D. C., filed a brief on behalf of Washington Lawyers' Committee for Civil Rights Under Law as amicus curiae urging affirmance.

Before BAZELON, Chief Judge, and WRIGHT and ROBB, Circuit Judges.

Opinion for the court filed by Circuit Judge WRIGHT.

Concurring opinion filed by Circuit Judge ROBB.

J. SKELLY WRIGHT, Circuit Judge:

This appeal is from the District Court's judgment 1 requiring appellant to pay attorneys' fees incurred by appellee. The only issue presented is whether in a suit brought by a federal employee under Title VII of the Civil Rights Act of 1964 2 in which the employee is the "prevailing party" 3 a federal District Court has discretion to award attorneys' fees that include compensation for legal services performed in connection with related administrative proceedings.

Our review of the statutory language, legislative history, 4 case law, and relevant policy concerns convinces us that a District Court does have such discretion and that the judgment below should be affirmed.


On February 15, 1973 appellee Dorothy Parker filed an administrative complaint with the Office of Education (OE) of the Department of Health, Education and Welfare (HEW). Parker, an employee of OE, alleged that she had been discriminated against on racial and sexual grounds and sought immediate promotion from her position as a GS-9 to a GS-14 with appropriate back pay.

Shortly after the complaint was filed, OE's Equal Employment Office began an investigation of the discrimination charges. An investigative report was filed on September 7, 1973. It concluded that appellee had been discriminated against and recommended that she be promoted to GS-13. Apparently no further action was taken until the spring of 1974 when HEW promoted appellee to GS-11, with assurances that she would soon be promoted to GS-13 5 as the original investigative report had recommended. In the spring of 1975, however, HEW issued its final determination stating that it would disregard the investigative report and take no further remedial action on appellee's discrimination claim.

Consequently, appellee still a GS-11 filed the instant suit on May 21, 1975. 6 Appellant filed his answer on July 22, 1975 and denied all allegations in the complaint. Despite these denials, less than two months later on September 18, 1975 HEW issued a formal decision to the effect that appellee had been discriminated against and should be retroactively promoted to GS-13 with appropriate back pay. 7

On November 14, 1975 the District Court entered an order approving this settlement of the suit but reserving the question of attorneys' fees. After considering the parties' submissions on the question, the District Court on April 1, 1976 awarded attorneys' fees of $8,770.36. 8 The award included compensation for time spent on the case at both "administrative and judicial levels." Parker v. Matthews (sic), 411 F.Supp. 1059, 1066 (D.D.C.1976). This appeal followed. 9


Title VII of the Civil Rights Act of 1964 10 prohibits employment discrimination based on race, color, religion, sex, or national origin. Sections 703, 704 of Title VII, 42 U.S.C. §§ 2000e-2, 2000e-3 (1970 & Supp. V 1975). Originally, however, this statutory prohibition was inapplicable to federal employees. Section 701, 42 U.S.C. § 2000e(b). See Brown v. GSA, 425 U.S. 820, 825, 96 S.Ct. 1961, 1964, 48 L.Ed.2d 402 (1976). Thus, "(a)lthough federal employment discrimination clearly violated both the Constitution, Bolling v. Sharpe, 347 U.S. 497 (74 S.Ct. 693, 98 L.Ed. 884) (1954), and statutory law, 5 U.S.C. § 7151," specific implementing legislation was lacking and "the effective availability of either administrative or judicial relief was far from sure." Id. In fact, federal employees faced numerous and difficult obstacles in attempting to enforce their right of freedom from employment discrimination. Hackley v. Roudebush, 171 U.S.App.D.C. 376, 520 F.2d 108, 115, 128-129, 132, 133-136 & n.67 (1975).

This anomaly was eliminated in 1972 by the addition of Section 717 to Title VII of the Civil Rights Act of 1964. See 42 U.S.C. § 2000e-16 (Supp. V 1975). 11 Hackley v. Roudebush, supra, 529 F.2d at 115-116. Subsection 717(a) of Title VII, 42 U.S.C. § 2000e-16(a) (Supp. V 1975), provides that "(a)ll personnel actions affecting employees or applicants for employment * * * in executive agencies (of the United States) * * * shall be made free from any discrimination based on race, color, religion, sex, or national origin." To effectuate this provision subsections 717(b) and (c), 42 U.S.C. § 2000e-16(b), (c) (Supp. V 1975), establish complementary administrative and judicial enforcement provisions. Subsection (b) authorizes the Civil Service Commission to enforce the provisions of subsection (a) "through appropriate remedies, including reinstatement or hiring of employees with or without back pay," to issue "rules, regulations, orders and instructions as it deems necessary and appropriate" to carry out its responsibilities under the Act, and to review equal employment opportunity plans that are annually submitted to it by each agency and department.

Subsection 717(c) permits an aggrieved employee or applicant for employment to file a civil action in a federal District Court to review her claim of employment discrimination. Before filing in District Court, however, the employee must meet certain administrative prerequisites. Initially, the complainant must seek relief in the agency that has allegedly discriminated against her. If not satisfied with relief obtained from the agency, the complainant may seek further administrative review with the Civil Service Commission. Alternatively, the complainant, within 30 days of receipt of notice of the agency's final decision, may file suit in federal District Court without appealing to the Civil Service Commission. If she does appeal to the Commission, she may file suit within 30 days of the Commission's final decision. "In any event, the complainant may file a civil action if, after 180 days from the filing of the charge or the appeal, the agency or Civil Service Commission has not taken final action." Brown v. GSA, supra, 425 U.S. at 832, 96 S.Ct. at 1968. In Brown the Supreme Court held that Section 717 provides the "exclusive, pre-emptive administrative and judicial scheme for the redress of federal employment discrimination." Id. at 829, 96 S.Ct. at 1966. Consequently, failure to comply with the administrative pre-conditions of Section 717, as in Brown, precludes the complainant from even getting into court.

Subsection 717(d) of Title VII, 42 U.S.C. § 2000e-16(d) (Supp. V 1975), plays a key part in this appeal. It states: "The provisions of section 706(f) through (k) (42 U.S.C. §§ 2000e-5(f) through 2000e-5(k) (1970 & Supp. V 1975)), as applicable, shall govern civil actions brought hereunder." 12 The subsections thus incorporated, which until Title VII was amended in 1972 applied only to private sector employees, govern such issues as venue, scope of relief, and of foremost significance for our purposes attorneys' fees. Specifically, Section 706(k), 42 U.S.C. § 2000e-5(k) (1970), provides:

In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney's fee as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person.

The effect of Section 717(d) coupled with Section 706(k) is, therefore, to allow a federal court, in its discretion, to award reasonable attorneys' fees to a federal employee or applicant who is the prevailing party in "any action or proceeding" under Title VII. Despite the apparent straightforwardness of the attorney fee provision, however, the parties to this appeal are sharply divided as to its proper interpretation and, in particular, as to the breadth to be accorded the single phrase "any action or proceeding."

Appellant and appellee agree that this language permits courts to award attorneys' fees to a prevailing party for at least the work performed by her attorney in connection with any lawsuit a complainant may file under Title VII. They disagree however, as to whether in such a suit the relevant language permits a court to award attorneys' fees for work performed in connection with the administrative proceedings proceedings that, as explained above, are a statutory prerequisite to filing a lawsuit alleging employment discrimination by the federal government.

Our analysis leads us to reject the limitation suggested by appellant and to conclude that in a Title VII suit, brought by a federal employee, attorneys' fees awarded under Section 706(k) may include compensation for work done at both judicial and administrative levels. In so holding our decision is consistent with the majority of cases 13 in which the question has been considered. 14


We begin our analysis with the language of the statute itself. Consideration of the operative language demonstrates clearly that appellant's narrow interpretation requires a strained and unnatural construction.

Section 706(k) grants federal District Courts discretion to award reasonable attorneys' fees and costs...

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