Van Hoomissen v. Xerox Corp.

• Decision Date: 13 September 1974
• Docket Number: No. 74-1037,74-1037
• Citation: 503 F.2d 1131
• Parties: 8 Fair Empl.Prac.Cas. 725, 8 Empl. Prac. Dec. P 9688 Dave VAN HOOMISSEN, Plaintiff, Equal Employment Opportunity Commission, Plaintiff-Intervenor-Appellant, v. XEROX CORPORATION et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1131

503 F.2d 1131

8 Fair Empl.Prac.Cas. 725, 8 Empl. Prac. Dec. P 9688

Dave VAN HOOMISSEN, Plaintiff, Equal Employment Opportunity Commission, Plaintiff-Intervenor-Appellant, v. XEROX CORPORATION et al., Defendants-Appellees.

No. 74-1037.

United States Court of Appeals, Ninth Circuit.

Sept. 13, 1974

Rehearing En Banc Denied Nov. 6, 1974.

Carlos G. Ynostroza, E.E.O.C., San Francisco, Cal., Beatrice Rosenberg, Charles L. Reischel, James P. Scanlan, Washington, D.C., for plaintiff-intervenor-appellant.

Richard Haas of Brobeck, Phleger & Harrison, San Francisco, Cal., for defendants-appellees.

Before DUNIWAY, WRIGHT and CHOY, Circuit Judges.

SUPPLEMENTAL OPINION

EUGENE A. WRIGHT, Circuit Judge:

Van Hoomissen sued Xerox, his former employer, under Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e-2(a)), alleging that Xerox fired him and engaged in other acts of retaliation because of his efforts to recruit minorities. The Equal Opportunity Commission sought leave to intervene under 42 U.S.C. 2000e-5(f)(1) and Fed.R.Civ.P. 24(b). In its proposed complaint in intervention, EEOC alleged that Xerox both engaged in discriminatory hiring practices and had unlawfully retaliated against Van Hoomissen. The district court granted EEOC leave to intervene, limited to the issue of retaliation, EEOC appealed, claiming that it should have been permitted to challenge Xerox's alleged discriminatory hiring practices in its complaint in intervention. We dismissed the appeal in Van Hoomissen v. Xerox Corp., 497 F.2d 180 (9th Cir. 1974).

Xerox now petitions this court, pursuant to 706(k) of the Act (42 U.S.C. 2000e-5(k)), for an award of attorney's fees as part of its costs on appeal. Section 706(k) 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.

On its face, this section authorizes an award of attorney's fees against the Commission. The word 'costs' is used twice. In its first occurrence, it is clear that it includes attorney's fees, since the latter is explicitly denominated 'a part of the costs.' In the second reference, 'costs' are assessable against the Commission. Unless the meaning of 'costs' changes during the eleven words which separate its two usages, it is clear that attorney's fees can be assessed against the Commission.

The Commission makes an ingenious and indeed persuasive argument, based on the legislative history of the section, that Congress did not intend the second occurrence of 'costs' to include attorney's fees even though it did intend attorney's fees be included in the first provision for 'costs.' The Commission starts with the generally accepted premise that the government is exempt from liability for costs and attorney's fees except as specifically and unequivocally authorized by Congress. See United States v. Chemical Foundation, 272 U.S. 1, 20, 47 S.Ct. 1, 71 L.Ed. 131 (1926); Georg Jensen, Inc. v. United States, 185 F.Supp. 251, 253 (S.D.N.Y.1960); Aycrigg v. United States, 124 F.Supp. 416, 417-418 (N.D.Cal.1954); 28 U.S.C. 2412 (1970); 28 U.S.C. 2412(a) (1964). The Commission also points out that the term 'costs' has a well defined technical meaning that does not normally include attorney's fees. See, e.g., 28 U.S.C. 1920, 1923; Twentieth Century Fox Film Corp. v. Goldwyn, 328 F.2d 190, 222-224 (9th Cir. 1964). Thus, the Commission would have us decline to deviate from this technical meaning in the interpretation of the second reference to 'costs' since attorney's fees are not specifically and explicitly included.

The legislative history of Section 706(k) supports the Commission's contention that Congress did not necessarily intend 'costs' to have the same meaning each time it was used. Without belaboring the analysis, the legislative history indicates that the portion of Section 706(k) dealing with attorney's fees was added after the portion authorizing 'costs' against the government had been drafted. See 110 Cong.Rec. 12819 (1964). Thus, it can be persuasively argued that the drafters of the provision dealing with 'costs' assessed against the Commission were referring to the normal meaning of 'costs,' not to the special meaning of 'costs' including attorney's fees that was later used when the provision dealing with attorney's fees was added. The argument is strengthened by the fact that the Commission cannot recover attorney's fees: Congress might not, therefore, have intended the Commission to be liable for such fees.

As useful as legislative history is as an aid to statutory construction, however, it...