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LE: Legislation - Judicial (2)
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Kenneth A. Lazarus Files (Ford Administration)
Kenneth Lazarus's Subject Files
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The original documents are located in Box 21, folder "LE: Legislation - Judicial (2)" of the
Kenneth Lazarus Files at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
OPTIONAL FORM NO. 10
no aremony to
JULY 1973 EDITION
GSA FPMR (41 CFR) 101-11.6
he scheduled
UNITED STATES GOVERNMENT
Memorandum
per B. michalson
TO
:
Kenneth A. Lazarus
DATE: September 28, 1976
Associate Counsel to the President
FROM
:
Michael M. Uhlmann
Assistant Attorney General
Office of Legislative Affairs
SUBJECT:
H.R. 15552 - Signing Ceremony
Pursuant to your request, I am enclosing a brief summary
of H.R. 15552, "The Act for the Prevention and Punishment of
Crimes Against Internationally Protected Persons. " Also in-
cluded is a list of possible invitees to a signing ceremony.
If space is limited I would suggest that the invitations
be limited to the members of the Senate and the House whose
names are at the top of the list.
You might want to independently contact the State Depart-
ment for their suggestions as well.
E FORD LIBRARY
GERALD
Buy U.S. Savings Bonds Regularly on the Payroll Savings Plan
5010-110
Senator James O. Eastland
Senator Roman L. Hruska (sponsor)
Senator John L. McClellan
Congressman Peter W. Rodino, Jr.
)
Congressman Charles E. Wiggins
)
Congressman James R. Mann
)
(sponsors)
Congressman William L. Hungate
)
Congressman Henry J. Hyde
)
Senate Judiciary Committee
Paul Summitt
J. C. Argetsinger
House Judiciary Committee
Tom Hutchison
Ray Smietanka
Justice Department
Office of Legislative Affairs
Michael M. Uhlmann, Assistant Attorney General
James H. Wentzel
Criminal Division
Richard L. Thornburgh, Assistant Attorney General
Jay Waldman
Roger Pauley
James Robinson
David Kline
GERALD R LIBRARY FORD
$ 16590
H.R. 15552
CONGRESSIONAL RECORD
September 24, 1976
The PRESIDING OFFICER. Is there
of an instrument of ratification with the
force very shortly-only six more ratifi-
objection to the present consideration of
appropriate international agency.
cations are needed. It is in the best in-
the bill?
TREATY OBLIGATIONS
terests of the United States to become a
Without objection. the committee is
The OAS and U.N. Conventions seek
party to both. This legislation, if enacted.
discharged and the Senate will proceed
to safeguard "internationally protected
will permit the United States to deposit
with the immediate consideration of the
persons" from certain crimes. "Inter-
the instruments of ratification for both
bill.
nationally protected persons" include:
treaties and become a party to them.
Mr. HRUSKA. Mr. President, this bill
The PRESIDING OFFICER. The bill
(a) a Head of State, including any mem-
amends title 18 of the Criminal Code of
ber of a collegial body performing the func-
is open to amendment. If there be no
the United States. The purpose of this
tions of a Head of State under the constitu-
amendment to be proposed, the ques-
bill is to implement two conventions.
tion of the State concerned, a Head of Gov-
tion is on the third reading of the bill.
Both conventions have been ratified and
ernment or a Minister for Foreign Affairs,
The bill was ordered to a third read-
agreed to by the Senate.
whenever any such person is in a foreign
ing, was read the third time, and passed.
One convention is to prevent and pun-
State, as well as members of his family who
Mr. McCLELLAN. Mr. President, I
ish the acts of terrorism taking the forms
accompany him:
move to reconsider the vote by which
of crimes against persons and relating
(b) any representative or official of a State
the bill was passed.
to extortion that are of international
or any official or other agent of an interna-
Mr. ALLEN. I move to lay that mo-
tional organization of an intergovernmental
significance.
character who, at the time when and in the
tion on the table.
The other convention is on the preven-
place where a crime against him, his offi-
The PRESIDING OFFICER. The
tion and punishment of crimes against
cial premises, his private accommodation or
question is on agreeing to the motion to
internationally protected persons includ-
his means of transport is committed.
lay on the table.
ing diplomatic agents.
is entitled pursuant to international
The motion to lay on the table was
Mr. President, even though the Sen-
law to special protection from any at-
agreed to.
ate has given its advice and consent to
tack on his person. freedom or dig-
The PRESIDING OFFICER. Does the
ratify both conventions. the instruments
nity, as well as members of his family form-
Senator wish a companion Senate bill
ing part of his household.
of ratification have not been deposited.
indefinitely postponed?
It is the policy of the State Department
The crimes from which these conven-
Mr. HRUSKA. Mr. President. I ask
not to deposit an instrument of ratifica-
tions seek to protect such persons in-
unanimous consent that S. 3646, the
tion until and unless it is assured that
clude murder: kidnaping and assault;
companion bill, be indefinitely post-
Federal law will permit the United States
threats or attempts to commit murder,
poned.
fully to discharge its treaty obligations.
kidnaping or assault; and extortion in
The PRESIDING OFFICER. Without
This bill if enacted will permit the
connection with murder, kidnaping, or
objection, it is so ordered.
United States to deposit the instruments
assault.
of ratification for both treaties and to
Both conventions obligate a party to
become a party to them.
them to take certain action when it finds
Mr. President, the pending bill. H.R.
within its territory someone who has
15552, has a counterpart in the bill S.
committed one of the enumerated of-
3646, which was reported favorably by
fenses against an internationally pro-
the Committee on the Judiciary earlier
tected person. The party must either
this week and which is on the Senate
extradite the offender to another party
Calendar.
or try him under its own criminal laws.
The purpose of the legislation is to im-
For example, country A is a party to the
plement the "Convention to Prevent and
conventions. A citizen of country A kills
Punish the Acts of Terrorism Taking
the American Ambassador to his coun-
the Form of Crimes Against Persons and
try. The offender then flees from coun-
Related Extortion That Are of Interna-
try A to the United States, where he is
tional Significance" and the "Conven-
apprehended. If the United States were
*tion on the Prevention and Punishment
a party to the conventions, it would be
of Crimes Against Internationally Pro-
obligated either to extradite the offender
tected Persons, Including Diplomatic
to country A or to try him under U.S.
Agents."
law. The United States would have un-
BACKGROUND
restricted discretion to decide which
Both the Organization of American
course of action to take.
States and the United Nations have be-
Both conventions, therefore, may re-
gun concerted international efforts to
sult in the United States exercising ex-
deal with terrorist acts directed at diplo-
traterritorial criminal jurisdiction. This
mats. The OAS has drafted the "Con-
would occur in the above example if the
vention To Prevent and Punish the
United States were to choose to try the
Acts of Terrorism Taking the Form of
citizen of country A for the crime of
Crimes Against Persons and Related Ex-
murder, since the offense occured within
tortion That Are of International Signifi-
the territory of another country. Extra-
cance"-known às the OAS Convention-
territorial criminal jurisdiction was au-
and the U.N. has drafted the "Convention
thorized last Congress in Public Law 93-
on the Prevention and Punishment of
366, which deals with aircraft hijacking.
Crimes Against Internationally Protected
NEED FOR LEGISLATION
Persons-known as the U.N. Convention.
Even though the Senate has given its
These conventions are based uron a rec-
advice and consent to ratify both con-
ognition that criminal acts directed at
ventions, the instruments of ratification
diplomatic agents seriously threaten the
have not been deposited and the United
maintenance of normal international
States is not yet a party to either. It is
LIBITATY
relations.
the policy of the State Department not
The United States has signed both
to deposit an instrument of ratification
conventions-the OAS Convention on
unless it is assured that Federal law will
GERALD
February 2, 1971, and the U.N. Conven-
permit the United States fully to dis-
tion on December 28, 1973. The Senate
charge its treaty obligations. Unless this
has given its advice and consent to the
legislation is enacted, the United States
ratification of both Conventions-the
would not be able fully to discharge its
OAS Convention on June 12, 1972, and
obligations under the Conventions.
the U.N. Convention on October 28,
The OAS Convention is presently in
1975. The United States will become a
force, and the State Department ex-
party to each convention upon deposit
pects the U.N. Convention to enter into
S 16590
H.R. 15552
CONGRESSIONAL RECORD - SENATE
September 24, 1976
The PRESIDING OFFICER. Is there
of an instrument of ratification with the
force very shortly-only six more ratifi-
objection to the present consideration of
appropriate international agency.
cations are needed. It is in the best in-
the bill?
TREATY OBLIGATIONS
terests of the United States to become a
Without objection. the committee is
The OAS and U.N. Conventions seek
party to both. This legislation, if enacted.
discharged and the Senate will proceed
to safeguard "internationally protected
will permit the United States to deposit
with the immediate consideration of the
persons" from certain crimes. "Inter-
the instruments of ratification for both
bill.
nationally protected persons" include:
treaties and become a party to them.
Mr. HRUSKA. Mr. President, this bill
The PRESIDING OFFICER. The bill
(a) a Head of State, including any mem-
amends title 18 of the Criminal Code of
ber of a collegial body performing the func-
is open to amendment. If there be no
the United States. The purpose of this
tions of a Head of State under the constitu-
amendment to be proposed, the ques-
bill is to implement two conventions.
tion of the State concerned, a Head of Gov-
tion is on the third reading of the bill.
Both conventions have been ratified and
ernment or a Minister for Foreign Affairs,
The bill was ordered to a third read-
agreed to by the Senate.
whenever any such person is in a foreign
ing, was read the third time, and passed.
One convention is to prevent and pun-
State, as well as members of his family who
Mr. McCLELLAN. Mr. President, I
ish the acts of terrorism taking the forms
accompany him;
move to reconsider the vote by which
of crimes against persons and relating
(b) any representative or official of a State
the bill was passed.
to extortion that are of international
or any official or other agent of an interna-
Mr. ALLEN. I move to lay that mo-
tional organization of an intergovernmental
significance.
character who, at the time when and in the
tion on the table.
The other convention is on the preven-
place where a crime against him, his offi-
The PRESIDING OFFICER. The
tion and punishment of crimes against
cial premises, his private accommodation or
question is on agreeing to the motion to
internationally protected persons includ-
his means of transport is committed.
lay on the table.
ing diplomatic agents.
is entitled pursuant to International
The motion to lay on the table was
Mr. President, even though the Sen-
law to special protection from any at-
agreed to.
ate has given its advice and consent to
tack on his person. freedom or dig-
The PRESIDING OFFICER. Does the
ratify both conventions. the instruments
nity, as well as members of his family form-
Senator wish a companion Senate bill
ing part of his household.
of ratification have not been deposited.
indefinitely postponed?
It is the policy of the State Department
The crimes from which these conven-
Mr. HRUSKA. Mr. President, I ask
not to deposit an instrument of ratifica-
tions seek to protect such persons in-
unanimous consent that S. 3646, the
tion until and unless it is assured that
clude murder: kidnaping and assault;
companion bill, be indefinitely post-
Federal law will permit the United States
threats or attempts to commit murder,
poned.
fully to discharge its treaty obligations.
kidnaping or assault; and extortion in
The PRESIDING OFFICER. Without
This bill if enacted will permit the
connection with murder, kidnaping, or
objection, it is so ordered.
United States to deposit the instruments
assault.
of ratification for both treaties and to
Both conventions obligate a party to
become a party to them.
them to take certain action when it finds
Mr. President, the pending bill. H.R.
within its territory someone who has
15552, has a counterpart in the bill S.
committed one of the enumerated of-
3646, which was reported favorably by
fenses against an internationally pro-
the Committee on the Judiciary earlier
tected person. The party must either
this week and which is on the Senate
extradite the offender to another party
Calendar.
or try him under its own criminal laws.
The purpose of the legislation is to im-
For example, country A is a party to the
plement the "Convention to Prevent and
conventions. A citizen of country A kills
Punish the Acts of Terrorism Taking
the American Ambassador to his coun-
the Form of Crimes Against Persons and
try. The offender then flees from coun-
Related Extortion That Are of Interna-
try A to the United States, where he is
tional Significance" and the "Conven-
apprehended. If the United States were
*tion on the Prevention and Punishment
a party to the conventions, it would be
of Crimes Against Internationally Pro-
obligated either to extradite the offender
tected Persons, Including Diplomatic
to country A or to try him under U.S.
Agents."
law. The United States would have un-
BACKGROUND
restricted discretion to decide which
Both the Organization of American
course of action to take.
States and the United Nations have be-
Both conventions, therefore, may re-
gun concerted international efforts to
sult in the United States exercising ex-
deal with terrorist acts directed at diplo-
traterritorial criminal jurisdiction. This
mats. The OAS has drafted the "Con-
would occur in the above example if the
vention To Prevent and Punish the
United States were to choose to try the
Acts of Terrorism Taking the Form of
citizen of country A for the crime of
Crimes Against Persons and Related Ex-
murder, since the offense occured within
tortion That Are of International Signifi-
the territory of another country. Extra-
cance"-known às the OAS Convention-
territorial criminal jurisdiction was au-
and the U.N. has drafted the "Convention
thorized last Congress in Public Law 93-
on the Prevention and Punishment of
366, which deals with aircraft hijacking.
Crimes Against Internationally Protected
NEED FOR LEGISLATION
Persons"-known as the U.N. Convention.
Even though the Senate has given its
These conventions are based uron a rec-
advice and consent to ratify both con-
ognition that criminal acts directed at
ventions, the instruments of ratification
diplomatic agents seriously threaten the
have not been deposited and the United
maintenance of normal international
States is not yet a party to either. It is
relations.
the policy of the State Department not
The United States has signed both
to deposit an instrument of ratification
conventions-the OAS Convention on
unless it is assured that Federal law will
February 2, 1971, and the U.N. Conven-
permit the United States fully to dis-
tion on December 28, 1973. The Senate
charge its treaty obligations. Unless this
GERALD
has given its advice and consent to the
legislation is enacted. the United States
ratification of both Conventions-the
would not be able fully to discharge its
OAS Convention on June 12, 1972, and
obligations under the Conventions.
the U.N. Convention on October 28,
The OAS Convention is presently in
1975. The United States will become a
force, and the State Department ex-
party to each convention upon deposit
pects the U.N. Convention to enter into
Monday 10/4/76
GERALD T FORO LIBRARY
2:30 I checked with Robert Anthony's office to see
if his call was urgent -- since you have been
so busy.
Mr. Anthony spoke with me. Said he heard that
S. 800, Judiciary Bill on Sovereign Immunity,
was passed on Friday. He would like to know
the President's position on it, or any other
information you might be able to give him.
Is asking if the President would have a ceremony
on signing bills of this nature.
It is a
bill they sponsored and he's very anxious to
know how it's coming along.
w the bel
Tell Ken to check into this bill send of
then memo for me to
also in to wouldlike such a ceremony. He says (over)
propore suggest signing ceremony. Monrocteigh ABA
15 very interested of should be as ked
to participate. Ken should work on
with M. Leigh & Bob Anthony [180 Reviside .yead air OF 31 I 08:5
suggested list of invitees. .5%
excess YnorisnA JM
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word of oxit Bloow oH .Ychirt no Бовего BFW
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birga zint atter toorts ot NoN 11st
A&A promory pnimpia 1200000 strong
at DMSNY NSNT
st G Nbuz bloow
THE WHITE HOUSE
ACTION MEMORANDUM
WASHINGTON
LOG NO.:
Date: October 15
Time: 700pm
FOR ACTION: Dick Parsons
CC (for information):
Jack Marsh
Max Friedersdorf
Robert Hartmann
Ed Schmults
Bobbie Kilberg
Jeanne Holm
Mike Duval
Bill Seidman
David Lissy
Steve McConahey
Alan Greenspan
Paul Leach
FROM THE STAFF SECRETARY
DUE: Date:
October 16
Time: noon
SUBJECT:
S.2278-The Civil Rights Attorneys Act
FORO
&
LIVERSE
GERALD
ACTION REQUESTED:
For Necessary Action
For Your Recommendations
Prepare Agenda and Brief
Draft Reply
x For Your Comments
Draft Remarks
REMARKS:
please return to judy johnston, ground floor west wing
Recommend approval. Treasury's comments regarding
the tax amendment included in this bill would
appear to be substantially overdrawn. In this
regard, it should be borne in mind that the tax
amendment (1) applies only to civil actions and
proceedings -- a very small percentage of the
contact between the U. S. and taxpayers concerning
the Internal Revenue Code; and (2) as the legis-
lative history makes clear, in awarding fees to
prevailing defendant taxpayers, courts must apply
the same standard for awards under other statutes
covered by the bill -- i.e., the action must have
been frivolous and vexatious and brought for
harrassment purposes. Our information is that
virtually no pending or future lawsuit could result in
PLEASE ATTACH THIS COPY TO MATERIAL SUBMITTED.
any fees award
whatsoever.
If you have any questions or if you anticipate a
delay in submitting the required material, please
(over)
James H. Cannon
I
telephone the Staff Secretary immediately.
For the President
As a technical matter, would suggest a deletion of the
word "considerable" from the fifth line of the second
page of the draft signing statement.
Ken Lazarus 10/18/76
it
GERALD
JAMES o. EASTLAND, MISS., CHAIRMAN
SUBCOMMITTEE:
JOHN L. C CLELLAN, ARK.
ROMAN L. HRUSKA, NEBR.
JOHN V. TUNNEY, CALIF., CHAIRMAN
PHILIP A. HART, MICH.
HIRAM L. FONG, HAWAII
EDWARD M. KENNEDY, MASS.
HUGH SCOTT, PA.
JOHN L. MC CLELLAN, ARK.
HUGH SCOTT, PA.
BIRCH BAYH, IND.
STROM THURMOND, S.C.
EDWARD M. KENNEDY, MASS.
ROMAN L. HRUSKA, NEBR.
QUENTIN N. BURDICK, N. DAK.
CHARLES MC c. MATHIAS, JR., MD.
BIRCH BAYH, IND.
HIRAM L. FONG, HAWAII
ROBERT c. BYRD, W. VA.
WILLIAM L. SCOTT, VA.
PHILIP A. HART, MICH.
STROM THURMOND, S.C.
JOHN V. TUNNEY, CALIF.
JAMES ABOUREZK, S. DAK.
JAMES ABOUREZK, S. DAK.
JANE L. FRANK
FRANCIS c. ROSENBERGER
United States Senate
CHIEF COUNSEL AND STAFF DIRECTOR
CHIEF COUNSEL AND STAFF DIRECTOR
COMMITTEE ON THE JUDICIARY
SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS
(PURSUANT TO S. RES. 375, SEC. 6, 94TH CONGRESS)
WASHINGTON, D.C. 20510
October 15, 1976
Kenneth Lazarus, Esq.
Counsel to the President
The White House
Washington, D.C.
Dear Ken:
Per your request, here are some brief materials about S. 2278,
the Civil Rights Attorney's Fees Awards Act. Things to keep in mind about
the tax amendment included in the bill are: (1) it applies only to civil
actions and proceedings -- a very small percentage of the contact between
the United States and taxpayers concerning the Internal Revenue Code;
(2) as the legislative history makes crystal clear, in awarding fees to
prevailing defendant taxpayers, courts must apply the same standard for
awards under other statutes covered by the bill -- i.e., the action must
have been frivolous and vexatious and brought for harrassment purposes.
Our information is that virtually no pending or future lawsuit could
result in any fees award whatsoever.
More generally, however, why shouldn't the United States pay the
defense costs for taxpayers when a court finds it brought a harrassing
civil action against them?
As you are well aware, the civil rights provisions are unanimously
and vigorously supported by numerous significant groups the Leadership
Conference, the Urban League, the N.A.A.C.P., Chicano groups, labor groups,
etc. They all feel that the tax amendment is acceptable, and that it
would be risky at best to try next year to pass a bill without the tax
language in it. My own guess is that it will be harder, not easier,
next year given the expected change in the membership of the Senate
Judiciary Committee.
Hope this information is of some help.
FORD
Regards.
R
LIBRA
Sincerely,
Jane
GERALD
Jane L. Frank
94th
CONGRESS
2d
SESSION
S 2278
AN ACT
The Civil Rights Attorney's Fees Awards Act of 1976.
1
Bè it enacted by the Senate and House of Representa-
2
tives of the United States of America in Congress assembled,
1 That this Act may be cited as "The Civil Rights Attorney's
2 Fees Awards Act of 1976".
3
SEC. 2. That the Revised Statutes section 722 (12
4 U.S.C. 1988) is amended by adding the following: "In
5 any action or proceeding to enforce a provision of sections
:
6 1977, 1978, 1979, 1980, and 1981 of the Revised Statutes,
7 title IX of Public Law 92-318, / or in any civil action
or proceeding, by or on behalf of the United States
of America, to enforce, or charging a violation of,
a provision of the United States Internal Revenue
Code, or title VI of the Civil Rights Act of 1964,
the court, in its discretion, may allow the pre-
vailing party, other than the United States, a
reasonable attorney's fee as part of the costs. =
Passed the Senate September 29 (legislative
day, September 24), 1976.
Attest:
GERALO TO FORD LIGHARY
Secretary.
17050
CONGRESSIONAL RECORD-SENATE
September 29, 1976
The PRESIDING OFFICER. The Sen-
West Virginia (Mr. RANDOLPH), the Sen-
ator is correct.
ator from Connecticut (Mr. RIBICOFF),
-Mr. ABOUREZK. It does not amend
and the Senator from Georgia (Mr.
the original bill?
TALMADGE) are necessarily absent.
The PRESIDING OFFICER. That is
I further announce that the Senator
correct.
from Ohio (Mr. GLENN), the Senator
Mr. ABOUREZK. I would like to say,
CIVIL RIGHTS ATTORNEYS' FEES
from Montana (Mr. MANSFIELD), the
AWARDS ACT
speaking as manager of this bill, this
Senator from Hawaii (Mr. INOUYE), and
amendment is acceptable to the commit-
the Senator from South Dakota (Mr.
The Senate continued with the con-
tee, and we will be willing to accept it.
McGovern) are absent on official bus-
sideration of the bill (Sn 2278) relating
I understand the Senator from Ala-
iness.
to the Civil Rights Attorneys' Fees
bama would like a rollcall vote on it,
I further announce that, if present
Awards Act of 1975.
which we would be very happy to take
and voting, the Senator from Minnesota
Mr. KENNEDY. Mr. President, I un-
part in.
(Mr. HUMPHREY), and the Senator from
derstand the parliamentary situation
The PRESIDING OFFICER. The Sen-
West Virginia (Mr. RANDOLPH) would
now is that
ator from North Carolina.
vote "yea."
Mr. STENNIS. Mr, President, may we
Mr. HELMS. Mr. President, I yield my-
Mr. GRIFFIN. I announce' that the
have it. quiet, so the Senator can be
self 1 minute am delighted to cospon-
Senator from Maryland (Mr. BEALL),
heard?
sor this amendment with the distin-
the Senator from Oklahoma (Mr. BELL-
The PRESIDING OFFICER. The Sen-
guished Senator from Alabama. It will
MON), the Senator from Tennessee (Mr.
ate will be in order.
provide a measure of equity and fairness
BROCK), the Senator from New York
Mr. KENNEDY (continuing). That my
to the taxpayers of this country who, in
(Mr. BUCKLEY), the Senator from
amendment, is now the business before
many instances, are being harassed and
Kansas (Mr. DOLE), the Senator from
the Senate. Is that correct?
intimidated by the Internal Revenue
Arizona (Mr. GOLDWATER), the Senator
The PRESIDING OFFICER. The Sen-
Service.
from Vermont (Mr. STAFFORD), the Sen-
ator is correct
I am pleased that the able Senator
ator from South Carolina (Mr. THUR-
Mr. KENNEDY. I yield myself 1 min-
from South Dakota and his associates
MOND), and the Senator from Texas (Mr.
ute, Mr. President, to say that I welcome
are willing to accept it.
TOWER) are necessarily absent.
the Allen amendment. While the original
Mr. ALLEN. Mr. President, I call for
I also announce that the Senator from
purpose of this bill was to authorize
the yeas and nays.
Virginia (Mr. WILLIAM L. SCOTT) is ab-
awards of fees in court actions brought
The PRESIDING OFFICER. Is there
sent on official business.
to enforce our civil rights laws, there is
a sufficient second? There is a sufficient
I further announce that, if present
no question that there are numerous
second.
and voting, the Senator from South
other situations where recoveries of such
The yeas and nays were ordered.
Carolina (Mr. THURMOND) would vote
fees are justified.
Mr. ALLEN. Mr. President, I ask unan-
"yea."
One such situation is indeed where
imous consent that the name of the dis-
The result was announced-yeas 72,
taxpayers suffer harassment from the
tinguished Senator from Florida, now
nays 0, as follows:
Internal Revenue Service. As I under-
presiding, be shown as a cosponsor.
stand the provisions of the Allen amend-
The PRESIDING OFFICER. Without
[Rollcall Vote No. 676 Leg.]
ment, a court would be authorized to
objection, it IS so ordered.
YEAS-72
award attorneys' fees to a taxpayer who
Mr. TUNNEY. Mr. President, as initial
Abourezk
Griffin
Muskie
is a defendant in a civil action brought
sponsor of S. 2278, I would like to make
Allen
Hansen
Nelson
by the U.S. Government to enforce the
Baker
Hart, Gary
Nunn
clear my understanding of the intent of
Bartlett
Haskell
Packwood
provisions of the Internal Revenue Code.
this amendment, which I support.
Bayh
Hatfield
Pastore
The usual standard applied in cases
Essentially, it would apply to a situa-
Biden
Hathaway
Pearson
where fees are awarded to prevailing de-
tion where a taxpayer is harrassed by
Brooke
Helms
Pell
Bumpers
Hollings
Percy
fendants would apply here as well-
the IRS. In such a case, a court has
Burdick
Hruska
Proxmire
that is, awards are appropriate where
discretion to award reasonable attor-
Byrd,
Huddleston
Roth
the action initiated by the plaintiff, the
neys' fees to the defendant. The stand-
Harry F., Jr.
Jackson
Schweiker
Byrd, Robert C. Javits
Scott, Hugh
Government, acted in a frivolous or vex-
ard to be applied is the one the courts
Case
Johnston
Sparkman
atious manner or brought the suit for
have adopted with respect to prevailing
Clark
Kennedy
Stennis
purposes of harassment.
defendants, as decribed in the Senate re-
Culver
Laxalt
Stevens
Curtis
Leahy
Stevenson
All of us in Congress have heard, I
port.
Domenici
Long
Stone
am sure, of instances where taxpayers
The purpose of this amendment is not
Durkin
Magnuson
Symington
have been unjustifiably harassed by law-
to discourage meritorious lawsuits by the
Eagleton
Mathias
Taft
McClellan
Tunney
suits which had little or no merit, but
Eastland
IRS, but to discourage frivolous or har
Fannin
McClure
Welcker
which forced them to expend enormous
rassing lawsuits.
Fong
McIntyre
Williams
resources to defend themselves. Their
The amendment would not apply to a
Ford
Metcalf
Young
victories are often illusory, however, as
situation where the Government is plain-
Garn
Morgan
Gravel
Moss
the law does not permit them to recover
tiff on appeal since the Government
their legal fees in defending these suits,
did not bring the action in the first
NAYS-0
however unwarranted they may be.
instance.
NOT VOTING-28
Adoption of this amendment would pro-
The PRESIDING OFFICER. The ques-
Beall
Glenn
Montoya
vide needed financial relief to such tax-
tion is on agreeing to the amendment
Bellmon
Goldwater
Randolph
Bentsen
Hart, Philip A.
Ribicoff
payers.
of the Senator from Alabama. The yeas
Brock
Hartke
Scott.
Since the amendment is intended to
and nays have been ordered, and the
Buckley
Humphrey
William L.
apply solely to prevailing defendants in
clerk will call the roll.
Cannon
Inouye
Stafford
tax cases, the courts would be guided by
Chiles
Mansfield
Talmadge
Mr. ROBERT C. BYRD. I announce
Church
McGee
Thurmond
well-settled Judicial standards in the ex-
that the Senator from Texas (Mr. BENT-
Cranston
McGovern
Tower
ercise of their discretionary authority to
SEN), the Senator from Nevada (Mr.
Dole
Mondale
make fee awards to defendants. These
CANNON), the Senator from Florida (Mr.
So the amendment, as modified, was
standards are discussed in the Senate
CHILES), the Senator from Idaho (Mr.
agreed to.
report on S. 2278. They are discussed with
CHURCH), the Senator from California
greater detail in the House report on its
(Mr. CRANSTON), the Senator from Mich-
companion bill. In general, the taxpayer
igan (Mr. PHILIP A. HART), the Senator
would have to show bad faith on the part
from Indiana (Mr. HARTKE), the Sena-
of the Government in bringing suit
tor from Minnesota (Mr. HUMPHREY),
GERALD
against him in order for fees to be al-
the Senator from Wyoming (Mr. Mc-
lowed.
GEE), the Senator from Minnesota (Mr.
The courts have articulated the policy
MONDALE), the Senator from New Mex-
reasons for utilizing a stricter test in
ico (Mr. MONTOYA), the Senator from
awarding fees to prevailing defendants
September 29, 1976
CONGRESSIONAL RECORD
S 17051
than to prevailing plaintiffs, and these
The PRESIDING OFFICER. Is there
narily good hands in the hands of Sen-
apply equally in tax cases and in actions
objection? Without objection, it is so or-
ator ABOUREZK. I thank him personally
brought to enforce the civil rights laws.
dered.
for having floor-managed the bill.
Awarding fees to prevailing defendants
Mr. ABOUREZK. Mr. President, I ask
Mr. President, the Senate is nearing
is intended to protect parties from being
unanimous consent that the vote on pas-
enactment of S. 2278-legislation that is
harassed by unjustifiable lawsuits. It is
sage be limited to 10 minutes.
vitally important to the enforcement of
not, however, intended to deter plaintiffs
Mr. ROBERT C. BYRD. Mr. President.
our Nation's civil rights laws.
from seeking to enforce the protections
I hope the Senator, in this instance, will
As we all know, the last 7 days
afforded by our civil rights laws, or in
not ask for a 10-minute rollcall. There
have been difficult-the bill's fate un-
this instance to deter the Government
are certain Senators who are attending a
clear during much of the time.
from instituting legitimate tax cases by
reception for PHIL HART, and I am afraid
It is clear to me that without the de-
threatening it with the prospect of hav-
they would miss that vote.
termination and care shown by the jun-
ing to pay the defendant's counsel fees
Mr. ABOUREZK. I withdraw the re-
ior Senator from South Dakota, and am-
should it lose. Were Congress or the
quest.
ple help from a bipartisan group of Sen-
courts to provide otherwise, it would have
Mr. STENNIS. What was the an-
ators and the Acting Majority Leader,
a substantial chilling effect on the bring-
nouncement, Mr. President?
this bill would have died.
ing of genuinely meritorious actions. I am
Mr. ABOUREZK. I withdraw my re-
Instead, it survived and we can be very
sure that none of us would want to in-
quest for a 10-minute vote.
hopeful that it will be enacted into law
hibit responsible lawsuits brought by the
Mr. ROBERT C. BYRD. I ask for the
this session.
United States to enforce the tax laws of
yeas and nays.
I am proud to have been its initial
our country.
The PRESIDING OFFICER. Is there
sponsor.
It should be clear, then, that a provi-
a sufficient second? There is a sufficient
I see it as a cornerstone of legislation
sion authorizing fee awards in tax cases
second.
developed by the Subcommittee on Con-
has a fundamentally different purpose
The yeas and nays were ordered.
stitutional Rights, which I chair, on the
from one authorizing awards in lawsuits
The PRESIDING OFFICER. The ques
subject of access to justice.
brought by private citizens to enforce the
tion is on agreeing to the amendment of
The problem of unequal access to the
protections of our civil rights laws. In
the Senator from Massachusetts, as
courts in order to vindicate congressional
enacting the basic civil rights attorneys
amended.
policies and enforce the law is not sim-
fees awards bill. Congress clearly intends
The amendment, as amended, was
ply a problem for lawyers and courts. En-
to facilitate and to encourage the bring-
agreed to.
couraging adequate representation is es-
ing of actions to enforce the protections
Mr. KENNEDY. I move to reconsider
sential if the laws of this Nation are to
of the civil rights laws. By authorizing
the vote by which the amendment was
be enforced. Congress passes a great deal
awards of fees to prevailing defendants
agreed to.
of lofty legislation promising equal rights
in cases brought under the Internal Rev-
Mr. ABOUREZK. I move to lay that
to all.
enue Code, however, Congress merely in-
motion on the table.
The motion to lay on the table was
Although some of these laws can be
tends to protect citizens from becoming
agreed to.
enforced by the Justice Department or
victims of frivilous or otherwise unwar-
Mr. ALLEN. Mr. President, will the
other Federal agencies, most of the re-
ranted lawsuits. Enactment of this
Senator now accept my amendment des-
sponsibility for enforcement has to rest
amendment should in no way be under-
ignating this bill the Kennedy-Tunney-
upon private citizens, who must go to
stood as implying that Congress intends
Abourezk lawyers relief bill?
court to prove a violation of the law. This
to discourage the Government from ini-
tiating legitimate lawsuits under the tax
Mr. ABOUREZK. Mr. President, may I
fact has been recognized in statutes
be recognized on that?
specifically giving private citizens the
laws.
That Congress must act to, provide
The PRESIDING OFFICER. No.
right to go to court to redress grievances,
[Laughter.]
and by court decisions which have
means for citizens to enforce laws that
are enacted for their protection can no
Mr. ABOUREZK. What if IL said
broadly expanded the concepts of private
longer be disputed. It has already in-
please?
causes of action and standing to sue. But
cluded provisions for awards of attorneys
Several Senators addressed the Chair.
without the availability of counsel fees,
The PRESIDING OFFICER. The ques-
these rights exist only on paper. Private
fees in over 50 statutes. I was pleased to
tion is- on the engrossment and third
citizens must be given not only the rights
see that on Tuesday the Senate adopted
reading of the bill.
to go to court, but also the legal re-
the conference report on the Toxic Sub-
stances Act. which contains several at-
The bill was ordered to be engrossed
sources. If the citizen does not have the
torneys fees provisions. The debate on
for a third reading, and was read the
resources, his day in court is denied him;
the Senate floor during the past week has
third time.
the congressional policy which he seeks
underscored the importance of including
Mr. ABOUREZK. If I said please, could
to assert and vindicate goes unvindi-
attorneys' fees provisions in all of our
I be recognized?
cated; and the entire Nation, not just
I just want to make a response to the
the individual citizen, suffers.
civil rights laws. I think the adoption of
question of Senator ALLEN as to whether
Unless effective ways are found to pro-
Senator ALLEN'S amendment comple-
we would accept a name change.
vide equal legal resources, the Nation
ments the legislation we are now con-
I think, in view of the fact that the
must expect its most basic and funda-
sidering, and I would very much hope
Senate has accepted his amendment on
mental laws to be objectively repealed by
that we would move to its immediate
it, it right to be called the Kennedy-
the economic fact of life that the people
passage.
Mr. President. a parliamentary inquiry.
Tunncy- Abourezk- Allen- Thurmond-
these laws are meant to benefit and pro-
Helms-Scott amendment.
tect cannot take advantage of them. At-
The PRESIDING OFFICER. The Sen-
[Laughter.]
torneys' fees have proved one extremely
ator will state it.
The PRESIDING OFFICER. The ques-
effective way to provide these equal legal
Mr. KENNEDY. I believe that the yeas
and nays have been ordered on the
tion is, Shall the bill pass?
resources; and are, in fact, an obvious
Mr. TUNNEY. Mr. President, before
and logical complement to citizen suit
amendment Am I correct?
we vote, I would like to say to my col-
provisions.
The PRESIDING OFFICER. The Sen-
leagues how deeply I appreciate the
When Congress calls upon citizens-
ator is correct.
Senator from South Dakota's (Mr.
either explicitly or by construction of its
Mr. KENNEDY. It seems to me that
ABORUEZK) floor management of the
statutes-to go to court to vindicate its
we have voted basically on this principle
bill. which was my legislation, and also
policies and benefit the entire Nation.
when we voted on the Allen amendment,
how much I appreciate the very hard
Congress must also ensure that they have
and I would be glad to have a voice vote
work of the majority whip in making
the means to go to court, and to be effec-
so we could get to passage of the meas-
sure this legislation stays on track, and
tive once they get there. No one expects
ure, unless there will be objection.
the work of Senator KENNEDY and the
a policeman, or an officeholder, to pay
I ask unanimous consent that the or-
others who played a part. I, unfortunate-
for the privilege of enforcing the law. It
der for the yeas and nays be vitiated, so
ly, was not able to be present during
should be no different for a private citi-
that we can go to third reading and
the major part of the consideration of
zen, as the first circuit realized in the
passage.
this legislation, but it was in extraordi-
1972 case of Knight against Auciello:
GERALD
October 1, 1976
CONGRESSIONAL RECORD HOUSE
H 12159
The SPEAKER pro tempore. The bill
express provision of law authorized such
the discriminatory use of Federal funds,
is read by title.
awards, the courts reasoned that, in
and requires recipients to use such mon-
Mr. BAUMAN. I thank the Speaker.
these civil rights cases, the private
les in a nondiscriminatory fashion. Title
The SPEAKER pro tempore. The gen-
plaintiff, in effect, acted as a "private
VI Is a general prohibition which applies
tleman from Massachusetts has been rec-
attorney general" advancing the rights
to all federally assisted programs or ac-
ognized for 1 hour.
of the public at large, and not merely
tivities, but is limited to discrimination
Mr. DRINAN Speaker. this bill is
some narrow parochial interest. The
on account of race, color, or national
Identical to H.R. 15460, which was re-
Alyeska decision ended that practice,
origin. Title IX covers certain education
ported out of the Judiciary Committee
which this bill seeks to restore.
programs and proscribes discrimination
by voice vote on September 9, 1976-27
This bill would authorize State and
based on sex, blindness, or visual impair-
members of the committee were present.
Federal courts to award counsel fees in
ment.
The only difference between the two
actions brought under specified sections
The only difference between S. 2278
bills is the Allen amendment, adopted
of the United States Code relating to
and H.R. 15460 is the result of an amend-
by the Senate unanimously-79 to 0-
civil and constitutional rights. As/I indi-
ment offered by Senator ALLEN and
on Tuesday, which I will discuss later.
cated earlier, over 50 Federal statutes
adopted unanimously by the Senate. Be-
With the approval of the minority. the
presently provide for the awarding of
cause the bills are identical, with the
House bill had been placed on the sus-
fees in a wide variety of circumstances.
limited exception of the Allen amend-
pension calendar for consideration on
In the past few years, Congress has ap-
ment, it is intended that the courts will
Tuesday, September 21. Unfortunately
proved such allowances in the areas of
interpret S. 2278 in accordance with
the House did not reach the bill because
antitrust, equal credit, freedom of infor-
House Report No. 94-1558, together with
a number of suspensions had been
mation, voting rights, and consumer
the Senate report and the debates in
carried over from the previous day.
product safety.
be
Houses.
Regarding the substance of the bill,
The attorney fee provision of this bill
The Allen amendment would allow the
let me begin by noting that the United
would apply to actions instituted under
prevailing party to recover its counsel
States Code presently contains over 50
sections 1981, 1982, 1983, 1985, 1986, and
fees in any civil action brought by the
provisions which allow the awarding of
2000d of title 42, sections 1681-1686 of
United States to enforce the Internal
attorney fees to prevailing parties. They
title 20, and the Internal Revenue Code.
Revenue Code. It would not apply to ac-
span a wide range of subjects: perishable
These sections generally prohibit the
tions instituted against the Government
agricultural commodities, securities
denial of civil and constitutional rights
by the taxpayer. Since S. 2278 does not
transactions, copyright-which we ap-
in a variety of areas, including contrac-
allow the U.S. Government to recover its
proved once again yesterday-antitrust,
tual relationships, property transactions,
fees under any circumstances, the effect
corporate reorganizations, and many
and federally assisted programs and ac-
of the Allen amendment is to permit pre-
other topics. I have a list of those statu-
tivities. It should be emphasized that S.
vailing defendants in such cases to re-
tory provisions which I am inserting in
2278 would not make any substantive
cover their attorney fees if they satisfy
the RECORD at the conclusion of these
changes in these statutory provisions.
the criteria generally applicable under
remarks.
Whatever is presently allowed or forbid-
the bill to prevailing defendants, which
With respect to civil rights, Congress
den under them would continue to be
I will discuss later at greater length.
has provided for the award of a reason-
permitted or proscribed.
Briefly, under settled judicial stand-
able attorney's fee in recent statutes,
Let me describe briefly the scope of the
ards, prevailing defendants would re-
such as the Federal Fair Housing Act of
covered statutes. Section 1981 is fre-
cover their attorney fees only if they
1968 and the Voting Rights Act Amend-
quently used to challenge discrimination
could prove that the United States
ments of 1975. In addition this week the
in employment and recreational facili-
brought the action to harass them, or
House approved two conference reports
ties. Under that section, the Supreme
if the suit is frivolous and vexatious.
on bills which have attorney fee pro-
Court recently held that whites as well
During the hearings last fall conducted
visions in their nondiscrimination sec-
as non-whites could bring suit alleging
by the Kastenmeier subcommittee on
tions: the LEAA authorization bill and
discriminatory employment practices.
various attorney fee bills, the representa-
the measure to extend the general reve-
Section 1982 prohibits discrimination in
tive of the Justice Department testified
nue sharing program.
property transactions, including the pur-
that these were the only circumstances
The purpose of S. 2278-and its House
chase of a home. Both these sections af-
when he believed prevailing defendants
counterpart, H.R. 15460-is to authorize
ford victims of housing and employment
should recover their fees in Government
the award of a reasonable attorney's fee
discrimination remedies supplementary
initiated suits.
in actions brought in State or Federal
to title VII-employment-of the 1964
I should note that the Allen amend-
courts, under certain civil rights statutes,
Civil Rights Act, and title VIII-hous-
ment might involve an expense to the
which are presently contained in title 42
ing-of the 1968 Civil Rights Act.
United States. However since awards of
and title 20 of the United States Code.
Section 1983 protects civil and consti-
counsel fees under that amendment
By permitting fees to be recovered under
tutional rights from abridgement by
would occur only in the special circum-
those statutes, we seek to make uniform
state and local officials. The landmark
stances I have described, it is fair to say
the rule that a prevailing party, in a
case of Brown against Board of Educa-
that the total costs to the Government
civil rights case, may, in the discretion
tion was initiated under this provision.
for fiscal year 1977 would be negligible.
of the court, recover counsel fees.
Ironically, because that section does not
The language of S. 2278 tracks the
The Civil Rights Attorney's Fees
authorize counsel fees, the plaintiffs in
wording of attorney fee provisions in
Awards Act of 1976, S. 2278 (H.R. 15460)
Brown could not have recovered their at-
other civil rights statutes, such as sec-
is intended to restore to the courts the
torney fees, despite the importance of
tion 706(k) of title VII-employment-
authority to award reasonable counsel
the decision in eliminating officially im-
of the Civil Rights Act of 1964. The
fees to the prevailing party in cases
posed racial segregation. Under appli-
phraseology employed has been reviewed,
initiated under certain civil rights acts.
cable judicial decisions, Section 1983 au-
examined, and interpreted by the courts,
The legislation is necessitated by the
thorizes suits against State and local of-
which have developed standards for its
decision of the Supreme Court in Alyeska
ficials based upon Federal statutory as
application. The language contains three
Pipeline Service Corp against Wilderness
well as constitutional rights. For ex-
key features: first that it applies to any
Society, 421 U.S. 240 (1975). In Alyeska,
ample, Blue against Craig, 505 F.2d 830
"prevailing party," whether a plaintiff
the Court held that attorney fees should
(4th Cir. 1974). The closely related Sec-
or defendant; second, that it gives the
not ordinarily be awarded to a prevail-
tions 1985 and 1986 are employed to chal-
court discretion to award fees; and third,
ing party unless expressly authorized by
lenge conspiracies, both public and pri-
that it permits only a "reasonable" fee to
Act of Congress.
vate, to deprive individuals of the equal
be imposed.
Prior to the Alyeska decision, the
protection of the laws:
First, I wish to discuss the scope of
lower Federal courts had regularly
The bill also covers any action, in-
the phrase "prevailing party." Under S.
awarded counsel fees to the prevailing
cluding suits by individuals, instituted
2278, either the plaintiff or the defendant
party in a variety of cases instituted
under title IX of the Education Amend-
is eligible to receive attorney fees. Con-
under the sections of the United States
ments of 1972, and title VI of the Civil
gress is not always that generous. About
Code covered by S. 2278. Even though no
Rights Act of 1964. These titles forbid
two-thirds of the statutes which provide
94TH CONGRESS
HOUSE OF REPRESENTATIVES
REPORT
2d Session
No. 94-1558
THE CIVIL RIGHTS ATTORNEY'S FEES AWARDS ACT
OF 1976
SEPTEMBER 15, 1976.-Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
Mr. DRINAN, from the Committee on the Judiciary,
submitted the following
REPORT
[Including cost estimate of the Congressional Budget Office]
[To accompany H.R. 15460]
The Committee on the Judiciary, to whom was referred the bill
(H.R. 15460) to allow the awarding of attorney's fees in certain civil
rights cases, having considered the same, report favorably thereon
without amendment and recommend that the bill do pass.
PURPOSE OF THE BILL
H.R. 15460, the Civil Rights Attorney's Fees Awards Act of 1976,
authorizes the courts to award reasonable attorney fees to the prevail-
ing party in suits instituted under certain civil rights acts. Under
existing law, some civil rights statutes contain counsel fee provisions,
while others do not. In order to achieve uniformity in the remedies
provided by Federal laws guaranteeing civil and constitutional rights,
it is necessary to add an attorney fee authorization to those civil rights
acts which do not presently contain such a provision.
The effective enforcement of Federal civil rights statutes depends
largely on the efforts of private citizens. Although some agencies of
the United States have civil rights responsibilities, their authority and
resources are limited. In many instances where these laws are violated,
it is necessary for the citizen to initiate court action to correct the
illegality. Unless the judicial remedy is full and complete, it will
remain a meaningless right. Because a vast majority of the victims
of civil rights violations cannot afford legal counsel, they are unable
to present their cases to the courts. In authorizing an award of reason-
able attorney's fees, H.R. 15460 is designed to give such persons
effective access to the judicial process where their grievances can be
resolved according to law.
57-006
2
3
STATEMENT
for Public Interest Law, the American Bar Association Special Com-
mittee on Public Interest Practice, and witnesses practicing in the field
A. NEED FOR THE LEGISLATION
testified to the devastating impact of the case on litigation in the
civil rights area. Surveys disclosed that such plaintiffs were the
In Alyeska Pipeline Service Corp V. Wilderness Society, 421 U.S. 240
hardest hit by the decision.³ The Committee also received evidence
(1975), the Supreme Court held that federal courts do not have the
that private lawyers were refusing to take certain types of civil rights
power to award attorney's fees to a prevailing party unless an Act of
cases because the civil rights bar, already short of resources, could not
Congress expressly authorizes it.1 In the Alyeska case, the plaintiffs
afford to do so. Because of the compelling need demonstrated by the
sought to prevent the construction of the Alaskan pipeline because of
testimony, the Committee decided to report a bill allowing fees to pre-
the damage it would cause to the environment. Although the plaintiffs
vailing parties in certain civil rights cases.
succeeded in the early stages of the litigation, Congress later over-
It should be noted that the United States Code presently contains
turned that result by legislation permitting the construction of the
over fifty provisions for attorney fees in a wide variety of statutes.
pipeline. Nonetheless the lower federal courts awarded the plaintiffs
See Appendix A. In the past few years, the Congress has approved
their attorney's fees because of the service they had performed in the
such allowances in the areas of antitrust, equal credit, freedom of in-
public interest. The Supreme Court reversed that award on the basis
formation, voting rights, and consumer product safety. Although the
of the "American Rule": that each litigant, victorious or otherwise,
recently enacted civil rights statutes contain provisions permitting
must pay for its own attorney.
the award of counsel fees, a number of the older statutes do not. It is to
Although the Alyeska case involved only environmental concerns,
these provisions that much of the testimony was directed.
the decision barred attorney fee awards in a wide range of cases,
including civil rights. In fact the Supreme Court, in footnote 46 of
B. HISTORY OF H.R. 15460
the Alyeska opinion, expressly disapproved a number of lower court
decisions involving civil rights which had awarded fees without
At the time of the Subcomittee hearings on October 6 and 8, and
statutory authorization. Prior to Alyeska, such courts had allowed fees
Dec. 3, 1975, three bills were pending which dealt expressly with coun-
on the theory that civil rights plaintiffs act as "private attorneys
sel fees in civil rights cases: H.R. 7828 (same as H.R. 8220) : H.R.
general" in eliminating discriminatory practices adversely affecting
7969 (same as H.R. 8742) ; and H.R. 9552. H.R. 7828 and H.R. 9552
all citizens, white and non-white. In 1968, the Supreme Court had
would allow attorney fees to be awarded in cases brought under spe-
approved the "private attorney general" theory when it gave a gener-
cific provisions of the United States Code, while H.R. 7969 would
ous construction to the attorney fee provision in Title II of the Civil
permit such awards in any case involving civil or constitutional
Rights Act of 1964. Newman V. Piggie Park Enterprises, Inc., 390
rights, no matter what the source of the claim. H.R. 7828 was stated
U.S. 400 (1968). The Court stated:
in mandatory terms; H.R. 9552 and H.R. 7969 allowed discretionary
If (the plaintiff) obtains an injunction, he does SO not
awards. The Justice Department, through its representative, Assistant
for himself alone but also as a "private attorney general,"
Attorney General Rex Lee of the Civil Division, expressed its support
vindicating a policy that Congress considered of the highest
of H.R. 9552. Hearings held in 1973 by the Senate Judiciary Sub-
importance. Id. at 402.
committee on the Representation of Citizen Interests also highlighted
the need of the public for legal assistance in this and other areas.
However, the Court in Alyeska rejected the application of that
In August, 1976, the Judiciary Subcommittee on Courts, Civil
theory to the award of counsel fees in the absence of statutory author-
Liberties, and the Administration of Justice concluded that a bill
ization. It expressly reaffirmed, however, its holding in Newman that,
to allow counsel fees in certain civil rights cases should be reported
in civil rights cases where counsel fees are allowed by Congress, "the
favorably in view of the pressing need. On August 26, 1976, the Sub-
award should be made to the successful plaintiff absent exceptional
committee approved H.R. 9552 with an amendment in the nature of
circumstances." Alyeska case, supra at 262.
a substitute because it was similar to S. 2278, which had cleared the
In the hearings conducted by the Subcommittee on Courts, Civil
Senate Judiciary Committee and was awaiting action by the full
Liberties, and the Administration of Justice, the testimony indicated
Senate. The amendment in the nature of a substitute sought to conform
that civil rights litigants were suffering very severe hardships because
H.R. 9552 technically to S. 2278; no substantive changes were made.
of the Alyeska decision. Thousands of dollars in fees were auto-
It was then reported unanimously by the Subcommittee.
matically lost in the immediate wake of the decision. Representatives
On September 2, 1976, the full Committee approved H.R. 9552, as
of the Lawyers Committee for Civil Rights Under Law, the Council
amended, with an amendment offered by Congresswoman Holtzman
The Court in Alveska recognized three very narrow exceptions to the rule (1) where a
and accepted by the Committee. That amendment added title IX of
"common fund" is involved: (2) where the litigant's conduct is vexatious, harassing, or
Public Law 92-318 to the substantive provisions under which success-
in had faith : and (3) where a court order is willfully disobeyed.
2 In Trafficante V. Metropolitan Life Insurance Co., 409 U.S. 205 (1972), the Supreme
ful litigants could be awarded counsel fees. The Committee then
Court applied the "private attorney general" theory in according broad "standing" to per-
sons injured by discriminatory housing practices under the Federal Fair Housing Act. 42
U.S.C. 3601-3619.
3 See. Balancing the Scales of Justice: Financing Public Interest Law in America (Coun-
cil for Public Interest Law, 1976), pp. 238, 364, D-2).
4
5
ordered that a clean bill be reported to the House. H.R. 15460, the
clean bill, was introduced on September 8 and approved pro forma
imposed segregation. Section 1983 has also been employed to challenge
by the Committee on September 9, 1976.4
unlawful official action in non-racial matters. For example, in Harper
V. Virginia State Board of Elections, 383 U.S. 663 (1966), indigent
C. SCOPE OF THE BILL
plaintiffs successfully challenged as unconstitutional the imposition
H.R. 15460, the Civil Rights Attorney's Fees Awards Act of 1976,
of a poll tax in state and local elections. In Monroe V. Pape, 365 U.S.
would amend Section 722 (42 U.S.C. 1988) of the Revised Statutes to
167 (1961), a private citizen sought damages against local officials for
an unconstitutional search of a private residence. See also Elrod V.
allow the award of fees in certain civil rights cases.⁵ It would apply to
actions brought under seven specific sections of the United States
Burns, U.S. 96 S. Ct. 2673 (June 28, 1976) (discrimination
on account of political affiliation in public employment): O'Connor
Code.⁶ Those provisions are: Section 1981, 1982, 1983, 1985, 1986, and
V. Donaldson, 422 U.S. 563 (1975) (terms and conditions of institu-
2000d et seq. of Title 42; and Section 1681 et seq. of Title 20. See
tional confinement).
Appendix B for full texts. The affected sections of Title 42 generally
Section 1985 and 1986 are used to challenge conspiracies, either
prohibit denial of civil and constitutional rights in a variety of areas,
public or private, to deprive individuals of the equal protection of the
while the referenced sections of Title 20 deal with discrimination on
laws. See Griffin V. Breckenridge, 403 U.S. 88 (1971). The bill also
account of sex, blindness, or visual impairment in certain education
covers suits brought under Title IX of Public Law 92-318, the Educa-
programs and activities.⁷
tion Amendments of 1972, 20 U.S.C. 1681-1686. Title IX forbids spe-
More specifically, Section 1981 is frequently used to challenge em-
cific kinds of discrimination on account of sex, blindness, or visual
ployment discrimination based on race or color. Johnson V. Railway
impairment in certain federally assisted programs and activities re-
Express Agency, Inc., 421 U.S. 454 (1975). Under that section the
lating to education. Finally H.R. 15460 would also apply to actions
Supreme Court recently held that whites as well as blacks could bring
arising under Title VI of the Civil Rights Act of 1964, 42 U.S.C.
suit alleging racially discriminatory employment practices. McDonald
2000d-2000d-6.1°
v. Santa Fe Trail Transportation Co.,
U.S.
, 96 S. Ct.
Title VI prohibits the discriminatory use of Federal funds, requir-
2574 (1976). Section 1981 has also been cited to attack exclusionary
ing recipients to administer such assistance without regard to race,
admissions policies at recreational facilities. Tillman v. Wheaton-
color, or national origin. Lau V. Nichols, 414 U.S. 563 (1974) Hills
Haven Recreation Ass'n, Inc., 410 U.S. 431 (1973). Section 1982 is
V. Gautreaux,
U.S.
,
96 Ct. 1538 (April 20, 1976) Adams
regularly used to attack discrimination in property transactions, such
v. Richardson, 480 F. 2d 1159 (D.C. Cir. 1973) ; Bossier Parish School
as the purchase of a home. Jones V. Alfred H. Mayer Co., 392 U.S. 409
Board V. Lemon, 370 F. 2d 847 (5th Cir.), cert. denied, 388 U.S. 911
(1968).9
(1967) Laufman V. Oakley Building and Loan Co., 408 F. Supp. 489
Section 1983 is utilized to challenge official discrimination, such as
(S.D. Ohio 1976).
racial segregation imposed by law. Brown V. Board of Education, 347
U.S. 483 (1954). It is ironic that, in the landmark Brown case chal-
D. DESCRIPTION OF H.R. 15460
lenging school segregation, the plaintiffs could not recover their attor-
ney's fees, despite the significance of the ruling to eliminate officially
As noted earlier, the United States Code presently contains over fifty
provisions for the awarding of attorney fees in particular cases. They
4 Apart from the addition of Title IX of Public Law 92-318, the only difference between
H.R. 9552 and the clean bill (H.R. 15460) are technical, not affecting the substance, made
may be placed generally into four categories: (1) mandatory awards
on advice of the House Parliamentarian and staff and legislative counsel.
only for a prevailing plaintiff; (2) mandatory awards for any prevail-
The bill amends the Revised Statutes rather than the United States Code because Title
42 is not codified. and thus is not "the law of the United States."
ing party; (3) discretionary awards for a prevailing plaintiff; and
6 In accordance with applicable decisions of the Supreme Court. the bill is intended to
apply to all cases pending on the date of enactment as well as all future cases. Bradley V.
(4) discretionary awards for any prevailing party. Existing statutes
Richmond School Board, 416 U.S. 696 (1974).
allowing fees in certain civil rights cases generally fall into the fourth
To the extent a plaintiff joins a claim under one of the statutes enumerated in H.R.
15460 with a claim that does not allow attorney fees, that plaintiff, if it prevails on the
category. Keeping with that pattern, H.R. 15460 tracks the language
non-fee claim. is entitled to a determination on the other claim for the purpose of awarding
counsel fees. Morales V. Haines, 486 F. 2d 880 (7th Cir. 1973). In some instances. however,
of the counsel fee provisions of Titles II and VII of the Civil Rights
the claim with fees may involve a constitutional question which the courts are reluctant to
Act of 1964,11 and Section 402 of the Voting Rights Act Amendments
resolve if the non-constittuional claim is dispositive. Hagans V. Lavine, 415 U.S. 528
(1974). In such cases. if the claim for which fees may be awarded meets the "substan-
of 1975. 12 The substantive section of H.R. 15460 reads as follows:
tiality" test. see Hagans V. Lavine, supra; United Mine Workers V. Gibbs, 383 U.S. 715
(1966), attorney's fees may be allowed even though the court declines to enter judgment for
In any action or proceeding to enforce a provision of sec-
the plaintiff on that claim. SO long as the plaintiff prevails on the non-fee claim arising out
of a "common nucleus of operative fact.' United Mine Workers V. Gibbs, supra at 725.
tions 1977, 1978, 1979, 1980, and 1981 of the Revised Statutes,
8 With respect to the relationship between Section 1981 and Title VII of the Civil
Rights Act of 1964. the House Committee on Education and Labor has noted that "the
title IX of Public Law 92-318, or title VI of the Civil Rights
remedies available to the individual under Title VII are co-extensive with the individual's
Act of 1964, the court, in its discretion, may allow the pre-
right to sue under the provisions of the Civil Rights Act of 1866, 42 U.S.C. $ 1981, and
that the two procedures augment each other and are not mutually exclusive. H.R. Rept.
vailing party, other than the United States, a reasonable
No. 92-238. p. 19 (92nd Cong. 1st Sess. 1971). That view was adopted by the Supreme
Court in Johnson v. Railway Express Agency, supra.
attorney's fee as part of the costs.
As with Section 1981 and Title VII, Section 1982 and Title VIII of the Civil Rights
Act of 1968 are complémentary remedies, with similarities and differences in coverage
and enforcement mechanism. See Jones V. Mayer Co., supra.
10 Title VI of the Civil Rights Act of 1964 is the only substantive title of that Act which
does not contain a provision for attorney fees.
11 42 U.S.C. 2000a-3(b) (Title II) U.S.C. 2000e-5(k) (Title VII).
12 42 U.S.C. 1973(e) (Section 402).
6
7
The three key features of this attorney's fee provision are: (1) that
stances, recover their counsel fees under H.R. 15460. To avoid the po-
awards may be made to any "prevailing party"; (2) that fees are to be
tential "chilling effect" noted by the Justice Department and to ad-
allowed in the discretion of the court; and (3) that awards are to be
vance the public interest articulated by the Supreme Court, however,
"reasonable". Because other statutes follow this approach, the courts
the courts have developed another test for awarding fees to prevailing
are familiar with these terms and in fact have reviewed, examined,
defendants. Under the case law, such an award may be made only if
and interpreted them at some length.
the action is vexatious and frivolous, or if the plaintiff has instituted
it solely "to harass or embarrass" the defendant. United States ,Steel
1. Prevailing party
Corp. V. United States, supra at 364. If the plaintiff is "motivated by
Under H.R. 15460, either a prevailing plaintiff or a prevailing
malice and vindictiveness," then the court may award counsel fees to
defendant is eligible to receive an award of fees. Congress has not
the prevailing defendant. Carrion V. Yeshiva University, 535 F.2d
always been that generous. In about two-thirds of the existing statutes,
722 (2d Cir. 1976). Thus if the action is not brought in bad faith, such
such as the Clayton Act and the Packers and Stockyards Act, only
fees should not be allowed. See, Wright V. Stone Container Corp. 524
prevailing plaintiffs may recover their counsel fees.¹ This bill follows
F.2d 1058 (8th Cir. 1975) see also Richardson V. Hotel Corp of Amer-
the more modest approach of other civil rights acts.
ica, 332 F. Supp. 519 (E.D.La. 1971), aff'd without published opin-
It should be noted that when the Justice Department testified in
ion, 468 (5th Cir. 1972). This standard will not deter plaintiffs
support of H.R. 9552, the precedessor to H.R. 15460, it suggested an
from seeking relief under these statutes, and yet will prevent their
amendment to allow recovery only to prevailing plaintiffs. Assistant
being used for clearly unwarranted harassment purposes.
Attorney General Lee thought the phrase "prevailing party" might
With respect to the awarding of fees to prevailing defendants, it
have a "chilling effect" on civil rights plaintiffs, discouraging them
should further be noted that governmental officials are frequently
from initiating law suits. The Committee was very concerned with
the defendants in cases brought under the statutes covered by H.R.
the potential impact such a phrase might have on persons seeking to
15460. See, e.g., Brown V. Board of Education, supra; Gautreaux V.
vindicate these important rights under Federal law. In light of existing
Hills, supra; O'Connor V. Donaldson, supra. Such governmental enti-
case law under similar provisions, however, the Committee concluded
ties and officials have substantial resources available to them through
that the application of current standards to this bill will significantly
funds in the common treasury, including the taxes paid by the plain-
reduce the potentially adverse affect on the victims of unlawful conduct
tiffs themselves. Applying the same standard of recovery to such de-
who seek to assert their federal claims.
fendants would further widen the gap between citizens and govern-
On two occasions, the Supreme Court has addressed the question of
ment officials and would exacerbate the inequality of litigating
the proper standard for allowing fees in civil rights cases. In Newman
strength. The greater resources available to governments provide an
V. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968) (per cu-
ample base from which fees can be awarded to the prevailing plaintiff
riam), a case involving racial discrimination in a place of public ac-
in suits against governmental officials or entities.¹⁴
commodation, the Court held that a prevailing plaintiff "should ordi-
The phrase "prevailing party" is not intended to be limited to the
narily recover an attorney's fee unless special circumstances would
victor only after entry of a final judgment following a full trial on
render such an award unjust."
the merits. It would also include a litigant who succeeds even if the
Five years later, the Court applied the same standard to the attor-
case is concluded prior to a full evidentiary hearing before a judge
ney's fee provision contained in Section 718 of the Emergency School
or jury. If the litigation terminates by consent decree, for example,
Aid Act of 1972, 20 U.S.C. 1617. Northcross V. Iemphis Board of Edu-
it would be proper to award counsel fees. Incarcerated Men of Allen
cation, 412 U.S. 427 (1973) (per curiam). The rationale of the rule
County v. Fair, 507 F.2d 281 (6th Cir. 1974) Parker V. Matthews,
rests upon the recognition that nearly all plaintiffs in these suits are
411 F. Supp. 1059 (D.D.C. 1976) Aspira of New York, Inc., V. Board
disadvantaged persons who are the victims of unlawful discrimination
of Education of the City of New York, 65 F.R.D. 541 (S.D.N.Y.
or unconstitutional conduct. It would be unfair to impose upon them
1975). A "prevailing" party should not be penalized for seeking an
the additional burden of counsel fees when they seek to invoke the
out-of-court settlement, thus helping to lessen docket congestion.
jurisdiction of the federal courts. "If successful plaintiffs were rou-
Similarly, after a complaint is filed, a defendant might voluntarily
tinely forced to bear their own attorneys' fees, few aggrieved parties
cease the unlawful practice. A court should still award fees even
would be in a position to advance the public interest by invoking the
though it might conclude, as a matter of equity, that no formal relief,
injunctive powers of the federal courts." Newman v. Piggie Park En-
such as an injunction, is needed. E.g., Parham V. Southwestern Bell
terprises, Inc., supra at 402.
Telephone Co., 433 F.2d 421 (8th Cir. 1970) Brown v. Gaston County
Consistent with this rationale, the courts have developed a different
Dyeing Machine Co., 457 F.2d 1377 (4th Cir.), cert denied, 409 U.S.
standard for awarding fees to prevailing defendants because they do
982 (1972) see also Lea V. Cone Mills Corp., 438 F.2d 86 (4th Cir.
"not appear before the court cloaked in a mantle of public interest."
1971) Evers V. Dwyer, 358 U.S. 202 (1958).
United States Steel Corp. v. United States, 519 F.2d 359, 364 (3rd
A prevailing defendant may also recover its fees when the plaintiff
Cir. 1975). As noted earlier such litigants may, in proper circum-
seeks and obtains a voluntary dismissal of a groundess complaint,
13 15 U.S.C. 15 (Clayton Act) ; 7 U.S.C. 210(f) (Packers and Stockyards Act).
14 Of course, the 11th Amendment is not a bar to the awarding of counsel fees against
state governments. Fitzpatrick v. Bitzer, U.S. 96 S.Ct. 2666 (June 28, 1976).
9
8
trust laws, for example, a plaintiff may recover treble damages and
Corcoran V. Columbia Broadcasting ,System, 121 F.2d 575 (9th Cir.
still the court is required to award attorney fees. The same principle
1941), as long as the other factors, noted earlier, governing awards
should apply here as civil rights plaintiffs should not be singled out
to defendants are met. Finally the courts have also awarded counsel
for different and less favorable treatment. Furthermore, while dam-
fees to a plaintiff who successfully concludes a class action suit even
ages are theoretically available under the statutes covered by H.R.
though that individual was not granted any relief. Parham V. South-
15460, it should be observed that, in some cases, immunity doctrines
western Bell Telephone Co., supra; Reed V. Arlington Hotel Co., Inc.,
and special defenses, available only to public officials, preclude or se-
476 .2d 721 (8th Cir. 1973).
verely limit the damage remedy. 17 Consequently awarding counsel fees
Furthermore, the word "prevailing" is not intended to require the
to prevailing plaintiffs in such litigation is particularly important and
entry of a final order before fees may be recovered. "A district court
necessary if Federal civil and constitutional rights are to be adequate-
must have discretion to award fees and costs incident to the final dis-
ly protected. To be sure, in a large number of cases brought under the
position of interim matters." Bradley V. Richmond School Board, 416
provisions covered by H.R. 15460, only injunctive relief is sought, and
U.S. 696, 723 (1974) see also Mills V. Electric Auto-Lite Co., 396
prevailing plaintiffs should ordinarily recover their counsel fees.
U.S. 375 (1970). Such awards pendente lite are particularly important
Newman V. Piggie Park Enterprises, Inc., supra; Northcross V. Mem-
in protracted litigation, where it is difficult to predicate with any
phis Board of Education, supra.
certainty the date upon which a final order will be entered. While
The application of these standards will insure that reasonable fees
the courts have not yet formulated precise standards as to the appro-
are awarded to attract competent counsel in cases involving civil and
priate circumstances under which such interim awards should be made,
constitutional rights, while avoiding windfalls to attorneys. The
the Supreme Court has suggested some guidelines. (T) he entry of
effect of H.R. 15460 will be to promote the enforcement of the Fed-
any order that determines substantial rights of the parties may be
eral civil rights acts, as Congress intended, and to achieve uniformity
an appropriate occasion upon which to consider the propriety of an
in those statutes and justice for all citizens.
award
of
counsel
fees.
" Bradley Richmond School Board, supra
at 722 n. 28.
OVERSIGHT
2. Judicial discretion
Oversight of the administration of justice in the federal court
The second key feature of the bill is its mandate that fees are only
system is the responsibility of the Committee on the Judiciary. The
to be allowed in the discretion of the court. Congress has passed many
hearings on October 6 and 8 and Dec. 3, 1975, focused on specific
statutes requiring that fees be awarded to a prevailing party. 15 Again
pending legislation. However, they did have an oversight purpose, as
the Committee adopted a more moderate approach here by leaving the
well, since the impact of the Supreme Court's Alyeska decision on
matter to the discretion of the judge, guided of course by the case
the public and the related issue of equal access to the courts were
law interpreting similar attorney's fee provisions. This approach was
subjects of the hearing.
supported by the Justice Department on Dec. 31, 1975. The Committee
COMMITTE VOTE
intends that, at a minimum, existing judicial standards, to which ample
reference is made in this report, should guide the courts in construing
H.R. 15460 was reported favorably by a voice vote of the Com-
H.R. 15460.
mittee on September 9, 1976. Twenty-seven members of the Commit-
tee were present.
3. Reasonable fees
The third principal element of the bill is that the prevailing party
STATEMENT OF THE COMMITTE ON Government OPERATIONS
is entitled to "reasonable" counsel fees. The courts have enumerated a
number of factors in determining the reasonableness of awards under
No statement has been received on the legislation from the House
similarly worded attorney's fee provisions. In Johnson V. Georgia
Committee on Government Operations.
Highway Express, Inc., 488 2d 714 (5th Cir. 1974), for example, the
court listed twelve factors to be considered, including the time and
STATEMENT OF THE CONGRSSIONAL BUDGET OFFICE
labor required, the novelty and difficulty of the questions involved, the
skill needed to present the case, the customary fee for similar work,
Pursuant to clause 7, rule XIII of the Rules of the House of Rep-
and the amount received in damages, if any. Accord: Evans V. Shera-
resentatives and section 403 of the Congressional Budget Act of 1974,
ton Park Hotel, 503 F.2d 177 (D.C. Cir. 1974) see also United States
the Committee estimates there will be no cost to the federal government.
Steel Corp. v. United States, supra.
Wood V. Strickland, 420 U.S. 308 (1975) Scheuer V. Rhodes, 416 U.S. 232 (1974)
Of course, it should be noted that the mere recovery of damages
Pierson V. Ray, 386 U.S. 547 (1967).
should not preclude the awarding of counsel fees.¹⁶ Under the anti-
15 E.g., 7 U.S.C. 499q(b) (Perishable Agricultural Commodities Act) 15 U.S.C. 1640(a)
(Truth-in-Lending Act) ; 46 U.S.C. 1277 (Merchant Marine Act of 1936) 47 U.S.C. 206
(Communications Act of 1934).
16 Similarly, a prevailing party is entitled to counsel fees even if represented by an orga-
nization or if the party is itself an organization. Incarcerated Men of Allen County V. Fair,
supra; Torres V. Sachs, 69 F.R.D. 343 (S.D.N.Y. 1975), aff'd. F.2d (2d Cir.,
H. Rept. 94-1558-76-2
June 25, 1976) : Fairley V. Patterson, 493 F2d 598 (5th Cir. 1974).
10
11
CONGRESS OF THE UNITED STATES,
cation, shall be exercised and enforced in conformity with the laws of
CONGRESSIONAL BUDGET OFFICE,
the United States, SO far as such laws are suitable to carry the same
Washington, D.C., September 7, 1976.
into effect; but in all cases where they are not adapted to the object,
Hon. PETER W. RODINO,
or are deficient in the provisions necessary to furnish suitable remedies
Chairman, Committee on the Judiciary, U.S. House of Represenatives,
and punish offenses against law, the common law, as modified and
Rayburn House Office Building, Washington, D.O.
changed by the constitution and statutes of the State wherein the court
DEAR MR. CHAIRMAN: Pursuant to Section 403 of the Congressional
having jurisdiction of such civil or criminal cause is held, SO far as the
Budget Act of 1974, the Congressional Budget Office has reviewed the
same is not inconsistent with the Constitution and laws of the United
Civil Rights Attorney's Fees Award Act of 1976, a bill to award
States, shall be extended to and govern the said courts in the trial and
attorney's fees to prevailing parties in civil rights suits to enforce
disposition of the cause, and, if it is of a criminal nature, in the inflic-
Sections 1977, 1978, 1979, 1980 and 1981 of the Revised Statutes,
tion of punishment on the party found guilty. In any action or pro-
Title IX of P.L. 92-318 or Title VI of the Civil Rights Act of 1964.
ceeding to enforce a provision of sections 1977, 1978, 1979, 1980, and
Based on this review, it appears that no additional cost to the gov-
1981 of the Revised Statutes, title IX of Public Law 92-318, or title
ernment would be incurred as a result of enactment of this bill.
VI of the Civil Rights Act of 1964, the court, in its discretion, may al-
Sincerely,
low the prevailing party, other than the United States, a reasonable
ALICE M.RIVLIN,
attorney's fee as part of the costs.
Director.
INFLATIONARY IMPACT STATEMENT
The legislation will have no foreseeable inflationary impact on prices
or costs in the operation of the national economy.
SECTION-BY-SECTION ANALYSIS
Section 1
Section 1 merely recites the short title of the legislation, "The Civil
Rights Attorney's Fees Awards Act of 1976".
Section 2
Section 2 amends section 722 (42 U.S.C. 1988) of the Revised Stat-
utes by adding at the end of that section the following language:
In any action or proceeding to enforce a provision of sec-
tions 1977, 1978, 1979, 1980, 1981 of the Revised Statutes,
title IX of Public Law 92-318, or title VI of the Civil Rights
Act of 1964, the court, in its discretion, may allow the prevail-
ig party, other than the United States, a reasonable attorney's
fee as part of the costs.
CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
In compliance with clause 3 of rule XIII of the Rules of the House
of Representatives, changes in existing law made by the bill, as re-
ported, are shown as follows (new matter is printed in italic, existing
law in which no change is proposed is shown in roman)
SECTION 722 OF THE REVISED STATUTES
SEC. 722. The jurisdiction in civil and criminal matters conferred on
the district and circuit courts by the provisions of this Title, and of
Title "CIVIL RIGHTS," and of Title "CRIMES," for the protection of all
persons in the United States in their civil rights, and for their vindi-
H
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APPENDIX
A¹
an Jalad ai to noitoibeirut
betwell orts toramel has odd dim
FEDERAL STATUTES AUTHORIZING THE AWARD OF ATTORNEY FEES
bus Init odd ni of behnstxe ed Hade
ai этител Commins to to
1. Federal Contested Election Act, 2 U.S.C. 396.
TO limp liviling (10 toordaining to
2. Freedom of Information Act, 5 U.S.C. 552 (a) (4) (E).
3. Privacy Act, 5 U.S.C. 552a(g) (3) (B).
to
4. Federal Employment Compensation For Work Injuries, 5 U.S.C.
-10
to
IV
8127.
5. Packers and Stockyards Act, 7 U.S.C. 210(f).
6. Perishable Agricultural Commodities Act, 7 U.S.C. 499g (b), (c).
7. Agricultural Unfair Trade Practices Act, 7 U.S.C. 2305 (a), (c).
8. Plant Variety Act, 7 U.S.C. 2565.
9. Bankruptcy Act, 11 U.S.C. 104 (a) (1).
10. Railroad Reorganization Act of 1935, 11 U.S.C. 205 (c) (12).
11. Corporate Reorganization Act, 11 U.S.C. 641, 642, 643, and 644.
12. Federal Credit Union Act, 12 U.S.C. 1786(O).
13. Bank Holding Company Act, 12 U.S.C. 1975.
14. Clayton Act, 15 U.S.C. 15.
15. Unfair Competition Act (FTC), 15 U.S.C. 72.
16. Securities Act of 1933, 15 U.S.C. 77k (e).
17. Trust Indenture Act, 15 U.S.C. 77www(a).
18. Securities Exchange Act of 1934, 15 U.S.C. 78i (e), (a).
19. Jewelers Hall-Mark Act, 15 U.S.C. 298 (b), (c) and (d).
20. Truth-in-Lending Act (Fair Credit Billing Amendments), 15
U.S.C. 1640(a).
21. Fair Credit Reporting Act, 15 U.S.C. 1681 (n).
22. Motor Vehicle Information and Cost Savings Act, 15 U.S.C.
1918(a), 1989 (a) (2).
23. Consumer Product Safety Act, 15 U.S.C. 2072, 2073.
24. Federal Trade Improvements Act (Amendments), 15 U.S.C.
2310 (a) (5) (d) (2).
25. Copyright Act, 17 U.S.C. 1116.
26. Organized Crime Control Act of 1970, 18 U.S.C. 1964(c).
27. Education Amendments of 1972, 20 U.S.C. 1617.
28. Mexican American Treaty Act of 1950, 22 U.S.C. 277d-21.
29. International Claim Settlement Act, 22 U.S.C. 1623 (f).
30. Federal Tort Claim Act, 28 U.S.C. 2678.
31. Norris-LaGuardia Act, 29 U.S.C. 107.
32. Fair Labor Standards Act, 29 U.S.C. 216 (b).
33. Employees Retirement Income Security Act, 29 U.S.C. 1132 (g).
34. Labor Management Reporting and Disclosure Act, 29 U.S.C.
431(c), 501 (b).
35. Longshoremen and Harbor Workers Compensation Act, 33
U.S.C. 928.
1 This list is compiled from information submitted to the Subcommittee by the Council
for Public Interest La wand the Attorneys' Fee Project of the Lawyers' Committee for
Civil Rights Under Law.
(13)
14
36. Water Pollution Prevention and Control Act, 33 U.S.C.
1365(d).
37. Ocean Dumping Act, 33 U.S.C. 1415 (g) (4).
38. Deepwater Ports Act of 1974, 33 U.S.C. 1515.
39. Patent Infringement Act, 35 U.S.C. 285.
40. Servicemen's Group Life Insurance Act, 38 U.S.C. 784 (g).
APPENDIX B
41. Servicemen's Readjustment Act, 38 U.S.C. 1822(b).
42. Veterans Benefit Act, 38 U.S.C. 3404(c).
STATUTES COVERED OR AMENDED BY H.R. 15460
43. Safe Drinking Water Act, 42 U.S.C. 300j-8(d).
44. Social Security Act (Amendments of 1965), 42 U.S.C. 406 (b).
1. Revised Statutes § 1977 (42 U.S.C. § 1981).
45. Clean Air Act (Amendments of 1970), 42 U.S.C. 1857h-2.
§ 1981. Equal rights under the law
46. Civil Rights Act of 1964, Title II, 42 U.S.C. 2000a-3 (b).
All persons within the jurisdiction of the United States shall have
47. Civil Rights Act of 1964, Title VII, 42 U.S.C. 2000e-5(k).
the same right in every State and Territory to make and enforce con-
48. Legal Services Corporation Act, 42 U.S.C. 2996e (f).
tracts, to sue, be parties, give evidence, and to the full and equal benefit
49. Fair Housing Act of 1968, 42 U.S.C. 3612(c).
of all laws and proceedings for the security of persons and property as
50. Noise Control Act of 1972, 42 U.S.C. 4911
is enjoyed by white citizens, and shall be subject to like punishment,
51. Railway Labor Act, 45 U.S.C. 153 (p).
pains, penalties, taxes, licenses, and exactions of every kind, and to no
52. Merchant Marine Act of 1936, 46 U.S.C. 1227.
other.
53. Communications Act of 1934, 47 U.S.C. 206.
R.S. § 1977.
54. Interstate Commerce Act, 49 U.S.C. 8, 16(2), 908(b),
2. Revised Statutes § 1978 (42 U.S.C. § 1982).
and 1017 (b) (2).
§ 1982. Property rights of citizens
All citizens of the United States shall have the same right, in every
State and Territory, as is enjoyed by white citizens thereof to inherit,
purchase, lease, sell, hold, and convey real and personal property.
R.S. § 1978.
3. Revised Statutes § 1979 (42 U.S.C. § 1983).
§ 1983. Civil action for deprivation of rights
(b)
(0)
Every person who, under color of any statute, ordinance, regulation,
(1)
custom, or usage, of any State or Territory, subjects, or causes to be
subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity, or other proper pro-
ceeding for redress.
R.S. § 1979.
4. Revised Statutes § 1980 (42 U.S.C. § 1985).
§ 1985. Conspiracy to interfere with civil rights-Preventing offi-
cer from performing duties
(1) If two or more persons in any State or Territory conspire to
prevent, by force, intimidation, or threat, any person from accepting
or holding any office, trust, or place of confidence under the United
States, or from discharging any duties thereof; or to induce by like
means any officer of the United States to leave any State, district, or
place, where his duties as an officer are required to be performed. or to
injure him in his person or property on account of his lawful discharge
of the duties of his office, or while engaged in the lawful discharge
thereof, or to injure his property SO as to molest, interrupt, hinder, or
impede him in the discharge of his official duties;
(15)
Bane) will about
Tol
to
(81)
16
17
Obstructing justice; intimidating party, witness, or juror
any number of persons guilty of such wrongful neglect or refusal
(2) If two or more persons in any State or Territory conspire to
may be joined as defendants in the action; and if the death of any
deter, by force, intimidation, or threat, any party or witness in any
party be caused by any such wrongful act and neglect, the legal rep-
court of the United States from attending such court, or from testi-
resentatives of the deceased shall have such action therefor, and
fying to any matter pending therein, freely, fully, and truthfully, or
may recover not exceeding $5,000 damages therein, for the benefit
to injure such party or witness in his person or property on account
of the widow of the deceased, if there be one, and if there be no
of his having SO attended or testified, or to influence the verdict, pre-
widow, then for the benefit of the next of kin of the deceased. But
sentment, or indictment of any grand or petit juror in any such court,
no action under the provisions of this section shall be sustained
or to injure such juror in his person or property on account of any ver-
which is not commenced within one year after the cause of action has
dict, presentment, or indictment lawfully assented to by him, or of
accrued.
his being or having been such juror; or if two or more persons con-
R.S. § 1981.
spire for the purpose of impeding, hindering, obstructing, or defeat-
ing, in any manner, the due course of justice in any State or Territory,
6. Revised Statutes § 722 (42 U.S.C. § 1988).
with intent to deny to any citizen the equal protection of the laws, or
§ 1988. Proceedings in vindication of civil rights
to injure him or his property for lawfully enforcing, or attempting to
The jurisdiction in civil and criminal matters conferred on the
enforce, the right of any person, or class of persons, to the equal pro-
district courts by the provisions of this chapter and Title 18, for the
tection of the laws;
protection of all persons in the United States in their civil rights,
and for their vindication, shall be exercised and enforced in con-
Depriving persons of rights or privileges
formity with the laws of the United States, SO far as such laws are
suitable to carry the same into effect; but in all cases where they
(3) If two of more persons in any State of Territory conspire or
are not adapted to the object, or are deficient in the provisions nec-
go in disguise on the highway or on the premises of another, for the
essary to furnish suitable remedies and punish offenses against law,
purpose of depriving, either directly or indirectly, any person or class
the common law, as modified and changed by the constitution and
of persons of the equal protection of the laws, or of equal privileges and
statutes of the State wherein the court having jurisdiction of such
immunities under the laws; or for the purpose of preventing or hin-
civil or criminal cause is held, SO far as the same is not inconsistent
dering the constituted authorities of any State or Territory from giv-
with the Constitution and laws of the United States, shall be ex-
ing or securing to all persons within such State or Territory the equal
tended to and govern the said courts in the trial and disposition of
protection of the laws; or if two or more persons conspire to prevent
the cause, and, if it is of a criminal nature, in the infliction of pun-
by force, intimidation, or threat, any citizen who is lawfully entitled
ishment on the party found guilty.
to vote, from giving his support or advocacy in a legal manner, toward
or in favor of the election of any lawfully qualified person as an elector
R.S. § 722.
for President or Vice President, or as a Member of Congress of the
7. Title IX of Public Law 92-318 (20 U.S.C. § 1681-1686), as
United States; or to injure any citizen in person or property on account
amended.
of such support or advocacy; in any case of conspiracy set forth in this
§ 1681. Sex-Prohibition against discrimination; exceptions
section, if one or more persons engaged therein do, or cause to be done,
any act in furtherance of the object of such conspiracy, whereby
(a) No person in the United States shall, on the basis of sex, be
another is injured in his person or property, or deprived of having and
excluded from participation in, be denied the benefits of, or be sub-
exercising any right or privilege of a citizen of the United States, the
jected to discrimination under any education program or activity re-
party so injured or deprived may have an action for the recovery of
ceiving Federal financial assistance, except that:
damages, occasioned by such injury or deprivation, against any one
of more of the conspirators.
Classes of Educational Institutions Subject to Prohibition
R.S. § 1980.
(1) in regard to admissions to educational institutions, this section
5. Revised Statutes § 198 (42 U.S.C. § 1986).
shall apply only to institutions of vocational education, professional
education, and graduate higher education, and to public institutions
§ 1986. Same; action for neglect to prevent
of undergraduate higher education;
Every person who, having knowledge that any of the wrongs con-
spired to be done, and mentioned in section 1985 of this title, are
Educational Institutions Commencing Planned Change in Admissions
about to be committed, and having power to prevent or aid in prevent-
ing the commission of the same, neglects or refuses SO to do, if such
(2) in regard to admissions to educational institutions, this section
wrongful act be committed, shall be liable to the party injured, or
shall not apply (A) for one year from June 23, 1972, nor for six years
his legal representatives, for all damages caused by such wrongful
after June 23, 1972, in the case of an educational institution which has
act, which such person by reasonable diligence could have prevented;
begun the process of changing from being an institution which admits
and such damages may be recovered in an action on the case; and
only students of one sex to being an institution which admits students
of both sexes, but only if it is carrying out a plan for such a change
18
19
which is approved by the Commissioner of Education or (B) for seven
with the total number or percentage of persons of that sex in any com-
years from the date an educational institution begins the process of
munity. State, section, or other area: Provided. That this subsection
changing from being an institution which admits only students of only
shall not be construed to prevent the consideration in any hearing
one sex to being an institution which admits students of both sexes, but
or proceeding under this chapter of statistical evidence tending to
only if it is carrying out a plan for such a change which is approved by
show that such an imbalance exists with respect to the participation
the Commissioner of Education, whichever is the later;
in, or receipt of the benefits of, any such program or activity by the
members of one sex.
Educational institutions of religious organizations with contrary
religious tenets
Educational Institution Defined
(3) this section shall not apply to an educational institution which
(c) For purposes of this chapter an educational institution means
is controlled by a religious organization if the application of this sub-
any public or private preschool, elementary, or secondary school, or
section would not be consistent with the religious tenets of such
any institution of vocational, professional, or higher education, ex-
organization;
cept that in the case of an educational institution composed of more
than one school, college, or department which are administratively
Educational institutions training individuals for military services or
separate units, such terms means each such school, college, or
merchant marine
department.
(4) this section shall not apply to an educational institution whose
§ 1682. Federal administrative enforcement; report to congres-
sional committees
primary purpose is the training of individuals for the military services
of the United States, or the merchant marine;
Each Federal department and agency which is empowered to ex-
tend Federal financial assistance to any education program or activ-
Public educational institutions with traditional and continuing
ity, by way of grant, loan, or contract other than a contract of
admissions policy
insurance or guaranty, is authorized and directed to effectuate the pro-
visions of section 1681 of this title with respect to such program or
(5) in regard to admissions this section shall not apply to any public
activity by issuing rules, regulations, or orders of general applic-
institution of undergraduate higher education which is an institution
ability which shall be consistent with achievement of the objectives
that traditionally and continually from its establishment has had a
of the statute authorizing the financial assistance in connection with
policy of admitting only students of one sex; and
which the action is taken. No such rule, regulation, or order shall be-
come effective unless and until approved by the President. Compliance
Social fraternities or sororities; voluntary youth service organizations
with any requirement adopted pursuant to this section may be ef-
fected (1) by the termination of or refusal to grant or to continue
(6) This section shall not apply to membership practices-
assistance under such program or activity to any recipient as to whom
(A) of a social fraternity or social sorority which is exempt
there has been an express finding on the record, after opportunity
from taxation under section 501 (a) of Title 26, the active mem-
for hearing, of a failure to comply with such requirement. but such
bership of which consists primarily of students in attendance at
termination or refusal shall be limited to the particular political en-
an institution of higher education, or
tity, or part thereof, or other recipient as to whom such a finding has
(B) of the Young Men's Christian Association, Young Wom-
been made, and shall be limited in its effect to the particular program,
en's Christian Association, Girl Scouts, Boy Scouts, Camp Fire
or part thereof, in which such noncompliance has been so found, or
Girls, and voluntary youth service organizations which are so
(2) by any other means authorized by law: Provided, however, That
exempt, the membership of which has traditionally been limited
no such action shall be taken until the department or agency concerned
to persons of one sex and principally to persons of less than nine-
has advised the appropriate person or persons of the failure to comply
teen years of age.
with the requirement and has determined that compliance cannot be
secured by voluntary means. In the case of any action terminating, or
Preferential or disparate treatment because of imbalance in partici-
refusing to grant or continue, assistance because of failure to comply
pation or receipt of Federal benefits; statistical evidence of im-
with a requirement imposed pursuant to this section, the head of the
balance
Federal department or agency shall file with the committees of the
House and Senate having legislative jurisdiction over the program or
(b) Nothing contained in subsection (a) of this section shall be
activity involved a full written report of the circumstances and the
interpreted to require any educational institution to grant preferen-
grounds for such action. No such action shall become effective until
tial or disparate treatment to the members of one sex on account of
thirty days have elapsed after the filing of such report.
an imbalance which may exist with respect to the total number or
percentage of persons of that sex participating in or receiving the
benefits of any federally supported program or activity, in comparison
20
21
Public Law 92-318, Title IX, § 902, June 23, 1972, 86 Stat. 374.
§ 2000d-1. Federal authority and financial assistance to programs
or activities by way of grant, loan, or contract other
§ 1683. Judicial review
than contract of insurance or guaranty; rules and
Any department or agency action taken pursuant to section 1682 of
regulations; approval by President; compliance with
this title shall be subject to such judicial review as may otherwise be
requirements; reports to congressional committees;
provided by law for similar action taken by such department or agency
effective date of administrative action
on other grounds. In the case of action, not otherwise subject to judicial
review, terminating or refusing to grant or to continue financial assist-
Each Federal department and agency which is empowered to extend
ance upon a finding of failure to comply with any requirement im-
Federal financial assistance to any program or activity, by way of
posed pursuant to section 1682 of this title, any person aggrieved
grant, loan, or contract other than a contract of insurance or guaranty,
is authorized and directed to effectuate the provisions of section 2000d
(including any State or political subdivision thereof and any agency
of either) may obtain judicial review of such action in accordance
of this title with respect to such program or activity by issuing rules,
with chapter 7 of Title 5, and such action shall not be deemed com-
regulations, or orders of general applicability which shall be consist-
ent with achievement of the objectives of the statute authorizing the
mitted to unreviewable agency discretion within the meaning of sec-
financial assistance in connection with which the action is taken. No
tion 701 of that Title.
such rule, regulation, or order shall become effective unless and until
Public Law 92-318, Title IX, § 903, June 23, 1972, 86 Stat. 374.
approved by the President. Compliance with any requirement adopted
§ 1684. Blindness or visual impairment; prohibition against dis-
pursuant to this section may be effected (1) by the termination of or
criminaton
refusal to grant or to continue assistance under such program or ac-
tivity to any recipient as to whom there has been an express finding
No person in the United States shall, on the ground of blindness or
on the record, after opportunity for hearing, of a failure to comply
severely impaired vision, be denied admission in any course of study
with such requirement, but such termination or refusal shall be limited
by a recipient of Federal financial assistance for any education pro-
to the particular political entity, or part thereof, or other recipient as
gram or activity, but nothing herein shall be construed to require any
to whom such a finding has been made and, shall be limited in its
such institution to provide any special services to such person because
effect to the particular program, or part thereof, in which such non-
of his blindness or visual impairment.
compliance has been SO found, or (2) by any other means authorized
Public Law 92-318, Title IX, § 904, June 23, 1972, 86 Stat. 375.
by law: Provided, however, That no such action shall be taken until
§ 1685. Authorty under other laws unaffected
the department or agency concerned has advised the appropriate per-
son or persons of the failure to comply with the requirement and has
Nothing in this chapter shall add to or detract from any existing
determined that compliance cannot be secured by voluntary means. In
authority with respect to any program or activity under which Fed-
the case of any action terminating, or refusing to grant or continue,
eral financial assistance is extended by way of a contract of insurance
assistance because of failure to comply with a requirement imposed
or guaranty.
pursuant to this section, the head of the Federal department or agency
Public Law 92-318, Title IX, § 905, June 23, 1972, 86 Stat. 375.
shall file with the committees of the House and Senate having legisla-
§ 1686. Interpretation with respect to living facilities
tive jurisdiction over the program or activity involved a full written
report of the circumstances and the grounds for such action. No such
Notwithstanding anything to the contrary contained in this chapter,
action shall become effective until thirty days have elapsed after the
nothing contained herein shall be construed to prohibit any edu-
filing of such report. (Pub. L. 88-352, title VI, § 602, July 2, 1964,
cational institution receiving funds under this Act, from maintaining
78 Stat. 252.)
separate living facilities for the different sexes.
§ 2000d-2. Judicial review; Administrative Procedure Act.
Public Law 92-318, Title IX, § 907, June 23, 1972, 86 Stat. 375.
Any department or agency action taken pursuant to section 2000d-1
8. Title VI of the Civil Rights Act of 1964 (Publ. L. 88-352, as
of this title shall be subject to such judicial review as may otherwise be
amended), (42 U.S.C. 2000d through d-6).
provided by law for similar action taken by such department or agency
on other grounds. In the case of action, not otherwise subject to judi-
SUBCHAPTER V.-FEDERALLY ASSISTED PROGRAMS
cial review, terminating or refusing to grant or to continue financial
assistance upon a finding of failure to comply with any requirement im-
§
2000d. Prohibition against exclusion from participation in, de-
posed pursuant to section 2000d-1 of this title, any person aggrieved
nial of benefits of, and discrimination under Federally
(including any State orpolitical subdivision thereof and any agency of
assisted programs on ground of race, color, or national
either) may obtain judicial review of such action in accordance with
origin
section 1009 of Title 5, and such action shall not be deemed committed
No person in the United States shall, on the ground of race, color,
to unreviewable agency discretion within the meaning of that section.
or national origin, be excluded from participation in, be denied the
(Pub. L. 88-352, title VI, § 603, July 2, 1964, 78 Stat. 253.)
benefits of, or be subjected to discrimination under any program or
to
activity receiving Federal financial assistance. (Pub. L. 88-352, title
VI, § 601, July 2, 1964, 78 Stat. 252.)
22
23
§ 2000d-3. Construction of provisions not to authorize adminis-
trative action with respect to employment practices
section 182 of the Elementary and Secondary Education Amendments
except where primary objective of Federal financial
of 1966 dealing with conditions of segregation by race, whether de jure-
assistance is to provide employment
or de facto, in the schools of the local educational agencies of any State
Nothing contained in this subchapter shall be construed to authorize
shall be applied uniformly in all regions of the United States what-
action under this subchapter by any department or agency with respect
ever the origin or cause of such segregation.
to any employment practice of any employer, employment agency or
(b) Nature of uniformity
labor organization except where a primary objective of the Federal
financial assistance is to provide employment. (Pub. L. 88-352, title
Such uniformity refers to one policy applied uniformly to de jure
segregation wherever found and such other policy as may be provided
VI, § 604, July 2, 1964, 78 Stat. 253.)
pursuant to law applied uniformly to de facto segregation wherever
§ 2000d-4. Federal authority and financial assistance to programs
found.
or activities by way of contract of insurance or
(c) Prohibition of construction for diminution of obligation for
guaranty
enforcement or compliance with nondiscrimination require-
Nothing in this subchapter shall add to or detract from any existing
ments
authority with respect to any program or activity under which Federal
financial assistance is extended by way of a contract of insurance or
Nothing in this section shall be construed to diminish the obligation
guaranty. (Pub. L. 88-352, title VI, § 605, July 2, 1964, 78 Stat. 253.)
of responsible officials to enforce or comply with such guidelines and
criteria in order to eliminate discrimination in federally assisted pro-
§ 2000-5. Prohibited deferral of action on applications by local
grams and activities as required by title VI of the Civil Rights Act
educational agencies seeking federal funds for alleged
of 1964.
noncompliance with Civil Rights Act.
(d) Additional funds
The Commissioner of Education shall not defer action or order ac-
tion or order action deferred on any application by a local educational
It is the sense of the Congress that the Department of Justice and
agency for funds authorized to be appropriated by this Act, by the
the Department of Health, Education, and Welfare should request
Elementary and Secondary Education Act of 1965, by the Act of Sep-
such additional funds as may be necessary to apply the policy set forth
tember 30, 1950 (Public Law 874, Eighty-first Congress), by the Act
in this section throughout the United States. (Pub. L. 91-230, § 2, Apr.
of September 23, 1950 (Public Law 815, Eighty-first Congress). or by
13, 1970, 84 Stat. 121.)
the Cooperative Research Act, on the basis of alleged noncompliance
with the provisions of this subchapter for more than sixty days after
notice is given to such local agency of such deferral unless such local
agency is given the opportunity for a hearing as provided in section
2000d-1 of this title, such hearing to be held within sixty days of such
notice, unless the time for such hearing is extended by mutual consent
of such local agency and the commissioner, and such deferral shall not
continue for more than thirty days after the close of any such hearing
unless there has been an express finding on the record of such hearing
that such local educational agency has failed to comply with the pro-
visions of this subchapter: Provided, That, for the purpose of de-
termining whether a local educational agency is in compliance with
this subchapter, compliance by such agency with a final order or judg-
ment of a Federal court for the desegregation of the school or school
system operated by such agency shall be deemed to be in compliance
with this subchapter, insofar as the matters covered in the order or
judgment are concerned. (Pub. L. 89-750, title I, § 182, Nov. 3, 1966,
80 Stat. 1209; Pub. L. 90-247, title I, § 112, Jan. 2, 1968, 81 Stat. 787).
§ 2000d-6. Policy of United States as to application of nondis-
crimination provisions in schools of local educational
agencies
(a) Declaration of uniform policy.
It is the policy of the United States that guidelines and criteria
established pursuant to title VI of the Civil Rights Act of 1964 and
RIFORD
LIBR
E
Calendar No. 955
94TH CONGRESS
SENATE
REPORT
2d Session
No. 94-1011
CIVIL RIGHTS ATTORNEYS' FEES AWARDS ACT
JUNE 29 (legislative day, JUNE 18), 1976.-Ordered to be printed
Mr. TUNNEY, from the Committee on the Judiciary,
submitted the following
REPORT
[To accompany S. 2278]
The Committee on the Judiciary, to which was referred the bill
(S. 2278) to amend Revised Statutes section 722 (42 U.S.C. § 1988)
to allow a court, in its discretion, to award attorneys' fees to a pre-
vailing party in suits brought to enforce certain civil rights acts, having
considered the same, reports favorably thereon and recommends that
the bill do pass.
The text of S. 2278 is as follows:
S. 2278
Revised Statutes section 722 (42 U.S.C. Sec. 1988) is
amended by adding the following: "In any action or pro-
ceeding to enforce a provision of sections 1977, 1978, 1979,
1980 and 1981 of the Revised Statutes, or Title VI of the Civil
Rights Act of 1964, 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.".
PURPOSE
This amendment to the Civil Rights Act of 1866, Revised Statutes
Section 722, gives the Federal courts discretion to award attorneys'
fees to prevailing parties in suits brought to enforce the civil rights
acts which Congress has passed since 1866. The |purpose of this amend-
ment is to remedy anomalous gaps in our civil rights laws created by
the United States Supreme Court's recent decision in Alyeska Pipeline
Service Co. v. Wilderness Society, 421 U.S. 240 (1975), and to achieve
consistency in our civil rights laws.
57-010
3
2
HISTORY OF THE LEGISLATION
Congress recognized this need when it made specific provision for
such fee shifting in Titles II and VII of the Civil Rights Act of 1964:
The bill grows out of six days of hearings on legal fees held before
When a plaintiff brings an action under [Title II] he cannot
the Subcommittee on the Representation of Citizen Interests of this
recover damages. If he obtains an injunction, he does SO not
Committee in 1973. There were more than thirty witnesses, including
for himself alone but also as a "private attorney general,"
Federal and State public officials, scholars, practicing attorneys from
vindicating a policy that Congress considered of the highest
many areas of expertise, and private citizens. Those who did not
priority. If successful plaintiffs were routinely forced to bear
appear were given the opportunity to submit material for the record,
their own attorneys' fees, few aggrieved parties would be in a
and many did so, including the representatives of the American Bar
position to advance the public interest by invoking the
Association and the Bar Associations of 22 States and the District
injunctive powers of the Federal courts. Congress therefore
of Columbia. The hearings, when published, included not only the
enacted the provision for counsel fees-* * * to encourage
testimony and exhibits, but numerous statutory provisions, proposed
individuals injured by racial discrimination to seek judicial
legislation, case reports and scholarly articles.
relief under Title II." Newman V. Piggie Park Enterprises,
In 1975, the provisions of S. 2278 were incorporated in a proposed
Inc., 390 U.S. 400, 402 (1968).
amendment to S. 1279, extending the Voting Rights Act of 1965.
The idea of the "private attorney general" is not a new one, nor
The Subcommittee on Constitutional Rights specifically approved
are attorneys' fees a new remedy. Congress has commonly authorized
the amendment on June 11, 1975, by a vote of 8-2, and the full
attorneys' fees in laws under which "private attorneys general" play a
Committee favorably reported it on July 18, 1975, as part of S. 1279.
significant role in enforcing our policies. We have, since 1870, author-
Because of time pressure to pass the Voting Rights Amendments, the
ized fee shifting under more than 50 laws, including, among others, the
Senate took action on the House-passed version of the legislation.
Securities Exchange Act of 1934, 15 U.S.C. §§ 78i(c) and 78r(a), the
S. 1279 was not taken up on the Senate floor; hence, the attorneys'
Servicemen's Readjustment Act of 1958, 38 U.S.C. § 1822(b), the
fees amendment was never considered.
Communications Act of 1934, 42 U.S.C. § 206, and the Organized
On July 31, 1975, Senator Tunney introduced S. 2278, which is
Crime Control Act of 1970, 18 U.S.C. § 1964(c). In cases under these
identical to the amendment to S. 1279 which was reported favorably
laws, fees are an integral part of the remedy necessary to achieve
by this Committee last summer.
compliance with our statutory policies. As former Justice Tom Clark
Shortly thereafter, similar legislation was introduced in the House
found, in a union democracy suit under the Labor-Management
of Representatives, including H.R. 9552, which is identical to S. 2278
except for one minor technical difference. The Subcommittee on
Reporting and Disclosure Act (Landrum-Griffin),
Courts, Civil Liberties and the Administration of Justice of the
Not to award counsel fees in cases such as this would be
House Judiciary Committee has conducted three days of hearings at
tantamount to repealing the Act itself by frustrating its basic
which the witnesses have generally confirmed the record presented to
purpose. * * * Without counsel fees the grant of Federal
this Committee in 1973. H.R. 9552, the counterpart of S. 2278, has
jurisdiction is but an empty gesture * * * Hall V. Cole, 412
received widespread support by the witnesses appearing before the
U.S. 1 (1973), quoting 462 F. 2d 777, 780-81 (2d Cir. 1972).
House Subcommittee.
The remedy of attorneys' fees has always been recognized as par-
STATEMENT
ticularly appropriate in the civil rights area, and civil rights and
attorneys' fees have always been closely interwoven. In the civil rights
The purpose and effect of S. 2278 are simple-it is designed to allow
area, Congress has instructed the courts to use the broadest and most
courts to provide the familiar remedy of reasonable counsel fees to
effective remedies available to achieve the goals of our civil rights
prevailing parties in suits to enforce the civil rights acts which Congress
laws.¹ The very first attorneys' fee statute was a civil rights law, the
has passed since 1866. S. 2278 follows the language of Titles II and VII
Enforcement Act of 1870, 16 Stat. 140, which provided for { 'torneys'
of the Civil Rights Act of 1964, 42 U.S.C. 2000a-3(b) and 2000e-
fees in three separate provisions protecting voting rights.2
5(k), and section 402 of the Voting Rights Act Amendments of 1975,
Modern civil rights legislation reflects a heavy reliance on attorneys'
42 U.S.C. § 1973l(e). All of these civil rights laws depend heavily upon
fees as well. In 1964, seeking to assure full compliance with the Civil
private enforcement, and fee awards have proved an essential remedy
Rights Act of that year, we authorized fee shifting for private suits
if private citizens are to have a meaningful opportunity to vindicate
establishing violations of the public accommodations and equal
the important Congressional policies which these laws contain.
employment provisions. 42 U.S.C. §§ 2000a-3(b) and 2000e-5(k).
In many cases arising under our civil rights laws, the citizen who
Since 1964, every major civil rights law passed by the Congress has
must sue to enforce the law has little or no money with which to hire a
included, or has been amended to include, one or more fee provisions.
lawyer. If private citizens are to be able to assert their civil rights, and
if those who violate the Nation's fundamental laws are not to proceed
1 For example, the Civil Rights Act of 1866 directed Federal courtsto "use that combination of Federal law,
with impunity, then citizens must have the opportunity to recover
common law and State law as will be best adapted to the object of the civil rights laws." Brown V. City of
Meridian, Mississippi, 356 F. 2d 602, 605 (5th Cir. 1966). See 42 U.S.C. § 1988; Lefton V. City of Hattiesburg,
what it costs them to vindicate these rights in court.
Mississippi, 333 F. 2d 280 (5th Cir. 1964).
2 The causes of action established by these provisions were eliminated in 1894. 28 Stat. 36.
S.R. 1011
S.R. 1011
5
4
Such "private attorneys general" should not be deterred from bringing
E.g., Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3612(c);
good faith actions to vindicate the fundamental rights here involved
the Emergency School Aid Act of 1972, 20 U.S.C. § 1617; the Equal
by the prospect of having to pay their opponent's counsel fees should
Employment Amendments of 1972, 42 U.S.C. § 2000e-16(b); and the
they lose. Richardson V. Hotel Corporation of America, 332 F. Supp.
Voting Rights Act Extension of 1975, 42 U.S.C. § 1973l(e).
519 (E.D. La. 1971), aff'd, 468 F. 2d 951 (5th Cir. 1972). (A fee award
These fee shifting provisions have been successful in enabling
to a defendant's employer, was held unjustified where a claim of racial
vigorous enforcement of modern civil rights legislation, while at the
discrimination, though meritless, was made in good faith.) Such a
same time limiting the growth of the enforcement bureaucracy. Before
May 12, 1975, when the Supreme Court handed down its decision in
party, if unsuccessful, could be assessed his opponent's fee only where
it is shown that his suit was clearly frivolous, vexatious, or brought for
Alyeska Pipeline Service Co. V. Wilderness Society, 421 U.S. 240 (1975),
many lower Federal courts throughout the Nation had drawn the obvi-
harassment purposes. United States Steel Corp. V. United States, 385
ous analogy between the Reconstruction Civil Rights Acts and these
F. Supp. 346 (W.D. Pa. 1974), aff'd, 9 E.P.D. 10,225 (3d Cir. 1975).
This bill thus deters frivolous suits by authorizing an award of
modern civil rights acts, and, following Congressional recognition in
the newer statutes of the "private attorney general" concept, were
attorneys' fees against a party shown to have litigated in "bad faith"
exercising their traditional equity powers to award attorneys' fees
under the guise of attempting to enforce the Federal rights created
by the statutes listed in S. 2278. Similar standards have been followed
under early civil rights laws as well.³
These pre-Alyeska decisions remedied a gap in the specific statutory
not only in the Civil Rights Act of 1964, but in other statutes providing
for attorneys' fees. E.g., the Water Pollution Control Act, 1972 U.S.
provisions and restored an important historic remedy for civil rights
violations. However, in Alyeska, the United States Supreme Court,
Code Cong. & Adm. News 3747; the Marine Protection Act, Id. at
4249-50; and the Clean Air Act, Senate Report No. 91-1196, 91st
while referring to the desirability of fees in a variety of circumstances,
ruled that only Congress, and not the courts, could specify which laws
Cong., 2d Sess., p. 483 (1970). See also Hutchinson V. William Barry,
were important enough to merit fee shifting under the "private
Inc., 50 F. Supp. 292, 298 (D. Mass. 1943) (Fair Labor Standards
Act).
attorney general" theory. The Court expressed the view, in dictum,
that the Reconstruction Acts did not contain the necessary congres-
In appropriate circumstances, counsel fees under S. 2278 may be
sional authorization. This decision and dictum created anomalous gaps
awarded pendente lite. See Bradley V. School Board of the City of
Richmond, 416 U.S. 696 (1974). Such awards are especially appropriate
in our civil rights laws whereby awards of fees are, according to Alyeska,
suddenly unavailable in the most fundamental civil rights cases. For
where a party has prevailed on an important matter in the course of
instance, fees are now authorized in an employment discrimination
litigation, even when he ultimately does not prevail on all issues.
suit under Title VII of the 1964 Civil Rights Act, but not in the same
See Bradley, supra; Mills V. Electric Auto-Lite Co., 396 U.S. 375
suit brought under 42 U.S.C. § 1981, which protects similar rights but
(1970). Moreover, for purposes of the award of counsel fees, parties
involves fewer technical prerequisites to the filing of an action. Fees are
may be considered to have prevailed when they vindicate rights
allowed in a housing discrimination suit brought under Title VIII of the
through a consent judgment or without formally obtaining relief.
Civil Rights Act of 1968, but not in the same suit brought under 42
Kopet V. Esquire Realty Co., 523 F. 2d 1005 (2d Cir. 1975), and cases
cited therein; Parham V. Southwestern Bell Telephone Co., 433 F. 2d
U.S.C. § 1982, a Reconstruction Act protecting the same rights. Like-
421 (8th Cir. 1970); Richards V. Griffith Rubber Mills, 300 F. Supp.
wise, fees are allowed in a suit under Title II of the 1964 Civil Rights
338 (D. Ore. 1969); Thomas V. Honeybrook Mines, Inc., 428 F. 2d
Act challenging discrimination in a private restaurant, but not in suits
981 (3d Cir. 1970); Aspira of New York, Inc. V. Board of Education
under 42 U.S.C. § 1983 redressing violations of the Federal Constitu-
tion or laws by officials sworn to uphold the laws.
of the City of New York, 65 R.D. 541 (S.D.N.Y. 1975).
This bill, S. 2278, is an appropriate response to the Alyeska decision.
In several hearings held over a period of years, the Committee has
found that fee awards are essential if the Federal statutes to which
It is limited to cases arising under our civil rights laws, a category
S. 2278 applies are to be fully enforced.5 We find that the effects of
of cases in which attorneys fees have been traditionally regarded as
such fee awards are ancillary and incident to securing compliance
appropriate. It remedies gaps in the language of these civil rights
with these laws, and that fee awards are an integral part of the
laws by providing the specific authorization required by the Court in
remedies necessary to obtain such compliance. Fee awards are there-
Alyeska, and makes our civil rights laws consistent.
fore provided in cases covered by S. 2278 in accordance with Congress'
It is intended that the standards for awarding fees be generally the
powers under, inter alia, the Fourteenth Amendment, Section 5. As
same as under the fee provisions of the 1964 Civil Rights Act. A party
with cases brought under 20 U.S.C. § 1617, the Emergency School
seeking to enforce the rights protected by the statutes covered by
Aid Act of 1972, defendants in these cases are often State or local
S. 2278, if successful, "should ordinarily recover an attorney's fee
bodies or State or local officials. In such cases it is intended that
unless special circumstances would render such an award unjnst."
the attorneys' fees, like other items of costs,⁶ will be collected either
Newman V. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968).⁴
directly from the official, in his official capacity,⁷ from funds of his
3 These civil rights cases are too numerous to cite here. See, e.g., Sims V. Amos 340 F. Supp. 691 (M.D.
agency or under his control, or from the State or local government
Ala. 1972). aff'd, 409 U.S. 942 (1972); Stanford Daily V. Zurcher, 366 F. Supp. 18 (N.D. Cal. 1973); and cases
cited in Alyeska Pipeline, supra, at n. 46. Many of the relevant cases are collected in "Hearings on the Effect
(whether or not the agency or government is a named party).
of Legal Fees on the Adequacy of Representation Before the Subcom. on Representation of Citizen Interests
of the Senate Comm. on the Judiciary,' 93d Cong., 1st sess., pt. III, at pp. 888-1024, and 1060-62.
5 See, e.g., "Hearings on the Effect of Legal Fees," supra.
4 In the large majority of cases the party or parties seeking to enforce such rights will be the plaintiffs
6 Fairmont Creamery Co. V. Minnesota, 275 U.S. 168 (1927).
and/or plaintiff-intervenors. However, in the procedural posture of some cases. the parties seeking to enforce
7 Proof that an official had acted in bad faith could also render him liable for fees in his individual capacity,
such rights may be the defendants and/or defendant-intervenors. See, e.g., Shelley V. Kraemer, 334 U.S.
under the traditional bad faith standard recognized by the Supreme Court in Alyeska. See Class V. Norton,
1 (1948).
505 F. 2d 123 (2d Cir. 1974); Doe V. Poelker, 515 F. 2d 541 (8th Cir. 1975).
S.R. 1011
S.R. 1011
6
7
It is intended that the amount of fees awarded under S. 2278 be
COST OF LEGISLATION
governed by the same standards which prevail in other types of equally
complex Federal litigation, such as antitrust cases and not be reduced
The Congressional Budget Office, in a letter dated March 1, 1976,
because the rights involved may be nonpecuniary in nature. The
has advised the Judiciary Committee that: "Pursuant to Section 403
appropriate standards, see Johnson V. Georgia Highway Express,
of the Congressional Budget Act of 1974, the Congressional Budget
488 F. 2d 714 (5th Cir. 1974), are correctly applied in such cases as
Office has reviewed S. 2278, a bill to award attorneys' fees to prevailing
Stanford Daily V. Zurcher, 64 F.R.D. 680 (N.D. Cal. 1974); Davis V.
parties in civil rights suits.
County of Los Angeles, 8 E.P.D. QT 9444 (C.D. Cal. 1974) and Swann V.
"Based on this review, it appears that no additional costs to the
Charlotte-Mecklenburg Board of Education, 66 F.R.D. 483 (W.D.N.C.
government would be incurred as a result of the enactment of this
1975). These cases have resulted in fees which are adequate to attract
bill."
competent counsel, but which do not produce windfalls to attorneys.
In computing the fee, counsel for prevailing parties should be paid, as
is traditional with attorneys compensated by a fee-paying client, "for
all time reasonably expended on a matter." Davis, supra; Stanford
Daily, supra, at 684.
This bill creates no startling new remedy-it only meets the
technical requirements that the Supreme Court has laid down if the
Federal courts are to continue the practice of awarding attorneys'
fees which had been going on for years prior to the Court's May
decision. It does not change the statutory provisions regarding the
protection of civil rights except as it provides the fee awards which
are necessary if citizens are to be able to effectively secure compli-
ance with these existing statutes. There are very few provisions in our
Federal laws which are self-executing. Enforcement of the laws depends
on governmental action and, in some cases, on private action through
the courts. If the cost of private enforcement actions becomes too
great, there will be no private enforcement. If our civil rights laws
are not to become mere hollow pronouncements which the average
citizen cannot enforce, we must maintain the traditionally effective
remedy of fee shifting in these cases.
CHANGES IN EXISTING LAW MADE BY THE BILL ARE ITALICIZED
REVISED STATUTES § 722, 42 U.S.C. § 1988
"The jurisdiction in civil and criminal matters conferred on the
district courts by the provisions of this chapter and Title 18, for the
protection of all persons in the United States in their civil rights, and
for their vindication, shall be exercised and enforced in conformity
with the laws of the United States, SO far as such laws are suitable
to carry the same into effect; but in all cases where they are not
adapted to the object, or are deficient in the provisions necessary to
furnish suitable remedies and punish offenses against law, the common
law, as modified and changed by the constitution and statutes of the
State wherein the court having jurisdiction of such civil or criminal
cause is held, SO far as the same is not inconsistent with the Consti-
tution and laws of the United States, shall be extended to and govern
the said courts in the trial and disposition of the cause, and, if it is
of a criminal nature, in the infliction of punishment on the party found
guilty." In any action or proceeding to enforce a provision of sections
1977, 1978, 1979, 1980 and 1981 of the Revised Statutes, or Title VI of the
Civil Rights Act of 1964, the court, in its discretion, may allow the pre-
vailing party, other than the United States, a reasonable attorney's fee
as part of the costs.
S.R. 1011
S.R. 1011
OF TRANSPORTATION
THE SECRETARY OF TRANSPORTATION
*
WASHINGTON, D.C. 20590
UNITED STATES OF AMERICA
Copy for
October 14, 1976
Barry
Kenf
V7yi
Honorable Philip W. Buchen
Counsel to the President
The White House
Washington, D.C. 20500
Dear Phil:
Enclosed herewith are my comments
on S. 2278, the Civil Rights Attorney's Fees
Awards Act of 1976.
I feel that this bill should be signed
into law by the President and any reservations
by the Treasury Department are clearly unfounded.
I believe even without the Allen amendment the
courts would act the same way if there were a
finding that the Treasury Department had harassed
a taxpayer and brought a frivolous suit.
Sincerely,
Biue
William T. Coleman, Jr.
Enclosure
It
OF
DEPARTMENTATION
THE SECRETARY OF TRANSPORTATION
WASHINGTON, D.C. 20590
UNITED STATES OF AMERICA
October 14, 1976
Honorable James T. Lynn
Director
Office of Management and Budget
Washington, D. C. 20503
Dear Mr. Lynn:
This is to give you formally my views on S. 2278, an
enrolled bill, "The Civil Rights Attorney's Fees
Awards Act of 1976"
To amend Revised Statutes section 722 (42 U.S.C.
1988) to provide for the award of counsel fees
for the prevailing party, other than the United
States, in the discretion of the Court in cases
brought pursuant to certain statutory provisions.
The enrolled bill would amend the Civil Rights Act of 1866,
Revised Statutes section 722, to provide for the award of
counsel fees to enforce a provision of sections 1977, 1978,
1979, 1980, and 1981 of the Revised Statutes, Title IX of
Public Law 92-318, the Internal Revenue Code and Title VI
of the Civil Rights Act of 1964.
Actions Brought Pursuant to the Civil Rights Act of 1866
Section 2 of the bill would amend Revised Statutes section
722 (42 U.S.C. 1988) of the Civil Rights Act of 1866 to
provide counsel fees for prevailing parties at the discretion
of the Court for actions brought to enforce the provisions
of the Act. Sections 1977, 1978, 1979, 1980, and 1981 of
the 1866 Act respectively (1) provide for and protect equal
rights by giving to all citizens the full and equal benefit
of all laws, (2) guarantee the property rights of all
citizens, (3) ensure legal redress and liability for
deprivation of rights secured by the Constitution and laws,
(4) vest jurisdiction to review all proceedings arising
hereunder in the Supreme Court and (5) protect against
conspiracies to interfere with civil rights.
2
As you know, these statutes were passed by Republican
Administrations and still afford the basis for relief
against unconstitutional action based upon race. See
e.g., Jones V. Alfred H. Mayer Co., 392 U.S. 409 (1968).
These provisions have traditionally been used by Blacks,
Mexican Americans, Puerto Ricans, American Indians, and
other minority groups to bridge the equality gap by
enforcing national policies favoring equality in housing,
employment, public accommodations, quality of medical
care and a host of other fundamental rights.
Traditionally, the parties seeking enforcement of these
basic human rights vindicating policies that Congress have
found to be of the highest priority are those least able
financially to afford counsel. It has long been recognized
by the Courts and the Congress that plaintiffs, who bring
actions to enforce important Congressional policies such
as those reflected in the civil rights laws, act not for
themselves alone but act as "private attorneys general"
enforcing the law through the Courts. Newman V. Piggie
Park Enterprises, Inc. 390 U.S. 400, 402 (1968). (Also
see list of attorney's fee provisions in Congressional
enactments since 1870, 94th Congress, 2d Session, S.R.
94-1011 at p. 3.)
Attorney's fee provisions for prevailing parties in civil
rights cases are not a new remedy. Both Congress and the
Federal courts have traditionally recognized the appropriate-
ness and effectiveness of this remedy in enabling private
parties to enforce the civil rights laws. All major civil
rights legislation enacted since 1964 now include an
attorney's fee provision. The standard in this bill, S. 2278,
is the same as in the post-1964 legislation: a party who
seeks to enforce these rights who is successful "should
ordinarily recover an attorney's fee unless special
circumstances would render such an award unjust". Newman,
supra, at 402.
Federal courts had bridged the gap between the post-1964
civil rights statutes with attorney's fee provisions and
the 1866 Act with no attorney's fee remedy by using their
inherent equity powers to award attorneys fees to prevailing
parties at their discretion. Knight V. Anciello, 453 F.2d
852 (lst Cir. 1972), Lee V. Southern Home Sites Corp.,
444 F.2d 143 (5th Cir. 1971), see list of cases in Alyeska
Pipeline Co. V. Wilderness Society, 421 U.S. 270, Fn. 42
(1975).
& FORD LIBRARY
GERALD
3
However, on May 12, 1975 the Supreme Court in Alyeska, supra,
held that only Congress could authorize the award of
attorney's fees ("it is not for us to invade the legislature's
province
" Alyeska, supra, at 271) and that although
fees are desirable in a variety of circumstances, courts
simply do not have the authority to fashion a rule. As a
result of Alyeska, attorney's fees became unavailable in
civil rights cases which seek to enforce fundamental rights
similar to those protected by post-1964 statutes in which FORD
fees are available. Thus, the bill merely provides the
same counsel fee provisions for pre-1964 civil rights
legislation which is in all post-1964 civil rights
legislation.
GERALD
Minority groups, therefore, across the country welcomed
the passage of S. 2278 because it filled a gap created by
the Alyeska decision. Civil rights litigants have been
hard-pressed for funds when they litigate against discrimi-
nators who are frequently financially affluent. The
Committee reports in both Houses make an overwhelming case
which demonstrates that existing legislation is not
sufficient to enable the economically disadvantaged
litigants, whose civil rights are often violated, legally
to enforce and protect these rights. In order for this
provision to be operative, the civil rights litigant must
first win in order to prevail and, even then, his attorney's
fee is fixed at the discretion of the judge.
The purpose and effect of this provision of S. 2278 is clear
and laudable: to provide the remedy of reasonable attorney's
fees to prevailing parties who are acting in the national
interest as "private attorneys general" in enforcing the
civil rights laws.
Attorney's Fees in Actions Brought Pursuant to Title IX of
Public Law 92-318 and Title VI of the Civil Rights Act of 1964
Title IX of the Education Act of 1972 prohibits discrimina-
tion on the basis of sex and Title VI of the Civil Rights
Act of 1964, on the basis of race and national origin "in
any education program or activity receiving federal
financial assistance." Their enforcement provision is
found in Revised Statutes section 722, the provision amended
by this bill.
These provisions are major civil rights provisions and the
counsel fee remedy is not new in either Act. Other sections
in each of these Acts have provisions similar to the one
passed here. (Title VII, section 706 (k), Civil Rights Act
of 1964, and Title VII, section 718, Educational Amendments
of 1972.)
4
Internal Revenue Code Proceedings
This provision which allows the Court in its discretion
to award attorney's fees to the prevailing party in a suit
brought by the United States pursuant to the Internal
Revenue Code imposes quite a different legal standard
from the "private attorneys general" standard applicable
to prevailing parties in civil rights litigation.
The amendment, in its effect on cases brought pursuant
to the Internal Revenue Code, applies solely to prevailing
defendants to provide protection against harassment.
The sponsor of the bill, Mr. Tunney (D-Ca.) expressed
the intent of the amendment as follows:
Mr. TUNNEY. Mr. President, as initial sponsor of
S. 2278, I would like to make clear my understanding
of the intent of this amendment, which I support.
Essentially, it would apply to a situation where
a taxpayer is harrassed by the IRS. In such a case,
a court has discretion to award reasonable attor-
neys' fees to the defendant. The standard to be
applied is the one the courts have adopted with
respect to prevailing defendants, as described in
the Senate report.
The purpose of this amendment is not to discourage
meritorious lawsuits by the IRS, but to discourage
frivolous or harrassing lawsuits.
The amendment would not apply to a situation
FORD
where the Government is plaintiff on appeal since GERALOG
the Government did not bring the action in the
LIBRARY
first instance.
(Cong. Record, Senate, 94th Congress, 2d. Session
at S. 17050.)
The legislative history further reveals that after this
expression of the intent of the amendment which was
sponsored by Messrs. Allen (D-Ala.), Helms (D-N.C.),
Thurmond (D-S.C.), Scott (D-Va.), and Stone (D-Fla.),
the Senate voted its adoption by a vote of 72 to 0.
The courts would be guided by well-settled judicial
principles made clear by the applicable case law that a
stricter test is used in awarding fees to prevailing
defendants than to prevailing plaintiffs. Specifically,
the existing case law requires that the defendant, in
5
order to receive a counsel fee, must show bad faith
on the part of the government. He must show that the
suit was unreasonable, frivolous, meritless, vexatious
and brought for purposes of harrassment. Carrion V.
Yeshiva University, 397 F. Supp 852, (S.D.N.Y.), aff'd
535 F. 2d 722 (2d Cir. 1976) ; United States Steel Corp.
V. United States, 519 F.2d 359, 364 (3d Cir. 1975).
The fundamentally different Congressional purposes
served by the counsel fee provision as it affects
prevailing parties in civil rights cases and defendants
in tax cases was articulated by Senator Kennedy (D-Mass.):
It should be clear, then, that a provision
authorizing fee awards in tax cases has a
fundamentally different purpose from one
authorizing awards in lawsuits brought by
private citizens to enforce the protections
GERALD R. FORD
of our civil rights laws. In enacting the
basic civil rights attorneys fees awards bill,
Congress clearly intends to facilitate and to
encourage the bringing of actions to enforce
the protections of the civil rights laws. By
authorizing awards of fees to prevailing
defendants in cases brought under the Internal
Revenue Code, however, Congress merely intends
to protect citizens from becoming victims of
frivolous or otherwise unwarranted lawsuits.
Enactment of this amendment should in no way
be understood as implying that Congress intends
to discourage the Government from initiating
legitimate lawsuits under the tax laws.
(Cong. Record, Senate, 94th Congress, 2d Session,
at S. 17051.)
The counsel fee provisions for prevailing parties in civil
rights laws clearly reflect the Congressional intent to
facilitate the enforcement of those laws, whereas similar
fee provisions in cases under the internal revenue code
are intended to protect defendants from vexatious and
frivolous lawsuits brought to harass. The standard for
prevailing defendants to receive counsel fees is a tough
one and remains so under this provision.
On the basis of my analysis of the intent of Congress, the
legislative history and the applicable case law, I recommend
that the enrolled bill be signed by the President. The
amendment making possible the award of counsel fees to
defendants in certain cases brought pursuant to the
Internal Revenue Code is subject to the same strict test
6
in its application that the Courts have already applied
in distinguishing prevailing plaintiffs from defendants:
there must be a legal determination of harassment and
bad faith on the part of the government in order for a
"fee shifting" provision to apply to a prevailing
defendant.
In fact, I am sure that the courts, even without such a
statute, would impose counsel fees on the government if
it were shown, as required by the statute, that the
government acted in bad faith and only to harass the
defendant. (See e.g., Rude V. Buchalter, 286 U.S. 451,
459-60 (1932) ; Local 149, I.U.A.A. & A.I.W. V. American
Brake Shoe Co., 298 F.2d 212, 214-15 (4th Cir.) cert.
den., 369 U.S. 873 (1962) i Cleveland V. Second National
Bank & Trust Co., 149 F.2d 466 (6th Cir.), cert. den.,
326 U.S. 775 (1945) ; Guardian Trust Co. V. Kansas City
Southern Ry., 28 F.2d 233 (8th Cir. 1928) ; Carrion V.
Yeshiva University, supra; cf. United States Steel Corp.,
V. United States, supra (fee sought against plaintiff
under civil rights statute); ; Paddison V. Fidelity Bank,
60 F.R.D. 695, 699 (E.D. Pa. 1973) (Title VII suit in
which defendant's petition for attorneys' fees against
plaintiff was denied on ground that " (s) uch an award
would normally be made to prevailing defendants only if
the case had been unreasonably brought ") ; Richardson
V. Hotel Corp., of America, 332 F. Supp. 519 (E.D. La.
1971), aff'd, 468 F.2d 951 (5th Cir. 1972). Since this
provision, therefore, only enacts into a statute what is
clearly the common law already, this does not afford any
reason to disapprove the statute.
I strongly urge the President to sign the bill.
Sincerely,
William T. Coleman, Jr.
& FORD LIBRARY
GERALD
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
2120 L STREET, N.W., SUITE 500
WASHINGTON, D.C. 20037
(202) 254-7020
OFFICE OF
THE CHAIRMAN
October 15, 1976
MEMORANDUM FOR: Kenneth A. Lazarus, Esq.
Associate Counsel to the President
FROM: Robert Chairman A. Anthony RAA
SUBJECT: Signing of S. 800
The President may wish to consider a signing ceremony for S. 800.
S. 800 removes the defense of sovereign immunity and certain other
technical obstacles to so-called nonstatutory judicial review of federal
administrative action (summarized in Attachment A). Its provisions have
long been favored by the American Bar Association, the Administrative
Conference of the United States, and students of administrative law and
federal jurisdiction generally.
This Act probably will not change outcomes in large numbers of
cases. But it will simplify court review of agency action, by eliminating
certain defenses and issues which have puzzled lawyers and judges, compli-
cated and lengthened judicial proceedings, and occasionally worked hardship
and injustice on private plaintiffs.
Thus, it will be easier for citizens to have courts decide the merits
of their disputes with the Government. The bill is not expected to increase
the caseload of the federal courts.
While the problems it deals with are somewhat technical, the bill is
of interest to a knowledgeable and influential community. In addition, it
has important symbolic value as representing a commitment by the Government
to deal fairly with its citizens and to subject its actions to the test of
the rule of law.
It should be especially noted that passage of the bill was achieved
after the Department of Justice this year discontinued its opposition to
the provision abolishing the sovereign immunity defense.
A list of persons who might be invited to a signing ceremony is
enclosed (Attachment B).
GERALD PL FORD LIBRARY
ATTACHMENT A
SUMMARY OF S.800
S.800 implements three recommendations of the Administrative Conference,
Nos. 68-7, 69-1 and 70-1. It removes certain technical obstacles to suits for
judicial review of administrative action. Section 1 of the bill amends 5 U.S.C
§702 to remove the defense of sovereign immunity in suits for nonstatutory review
of agency action (other than suits for money damages) and amends 5 U.S.C §703 to
permit the plaintiff to name as defendant in such a suit the officer, the agency,
or the United States. Section 2 amends 28 U.S.C $1331 to eliminate, in suits
against the United States, federal agencies, or officers, the $10,000 amount in
controversy required to establish federal question jurisdiction. Section 3
permits a plaintiff to implead nonfederal defendants in a suit against the United
States or a federal officer or agency without losing the benefit of the liberal
venue and service of process provisions available under 28 U.S.C $1391(e).
AL FORD LIBRARY
GERALD
ATTACHMENT B
POSSIBLE INVITEES TO SIGNING CEREMONY ON S. 800
Council of the Administrative Conference
List attached
The Chairman and all other members were appointed to their
current terms by President Ford, except for Messrs. Gellhorn,
Harrison and Russell, who were appointed by President Nixon.
The Council will be meeting in Washington October 22.
Former Chairmen of the Administrative Conference
Honorable Antonin Scalia
Assistant Attorney General
Office of Legal Counsel
Department of Justice
Washington, D.C. 20530
(202) 739-2041
Dean Roger C. Cramton
Cornell Law School
Ithaca, New York 14853
(607) 256-3527
Professor Jerre S. Williams
University of Texas Law School
2500 Red River
Austin, Texas 78705
(512) 471-5151
Department of Justice
Attorney General Levi
Deputy Attorney General Tyler (listed above in ACUS Council)
Assistant Attorney General Scalia (listed above as former ACUS Chairman)
Assistant Attorney General Rex Lee
LUMARY
GERALD
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
2120 L STREET, N.W., SUITE 500
WASHINGTON, D.C. 20037
September 30, 1976
(202) 254-7020
OFFICE OF
THE CHAIRMAN
MEMBERS OF THE COUNCIL
Robert A. Anthony
Chairman
Suite 500, 2120 L Street, N.W.
Washington, D.C. 20037
Telephone: (202) 254-7020
Harold R. Tyler, Jr.
Vice Chairman
Deputy Attorney General
Department of Justice
Washington, D.C. 20530
Telephone: (202) 739-2101
John W. Barnum
Harold L. Russell
Deputy Secretary
Gambrell, Russell, Killorin,
Department of Transportation
& Forbes
Washington, D.C. 20590
4000 First National Bank Building
Telephone: (202) 426-2222
Atlanta, Georgia 30303
Telephone: (404) 658-1620
Philip W. Buchen
Counsel to the President
Richard C. Van Dusen
The White House
Dickinson, Wright, McKean & Cudlip
Washington, D.C. 20500
800 First National Building
Telephone: (202) 456-2632
Detroit, Michigan 48226
Telephone: (313) 223-3500
Walter Gellhorn
Professor
Richard E. Wiley
Columbia University Law School
Chairman
435 West 116th Street
Federal Communications Commission
New York, New York 10027
Washington, D.C. 20554
Telephone: (212) 280-2664
Telephone: (202) 632-6336
Marion Edwyn Harrison
Edwin M. Zimmerman
Harrison, Lucey, Sagle & Solter
Covington & Burling
1701 Pennsylvania Avenue, N.W.
888 - 16th Street, N.W.
Washington, D.C. 20006
Washington, D.C. 20006
Telephone: (202) 298-9030
Telephone: (202) 452-6042
Betty Southard Murphy
Chairman
National Labor Relations Board
Washington, D.C. 20570
Telephone: (202) 254-9445
GERALD
American Bar Association
Lawrence Edward Walsh
Past President of ABA
1 Chase Manhattan Plaza
44th Floor
New York, New York 10005
(212) HA2-3400
Justin Stanley
President
American Bar Association
1155 E. 60th Street
Chicago, Illinois 60637
(312) 947-4000
or
(312) 782-0600
Whitney North Seymour
Past President of ABA
One Battery Park Plaza
New York, New York 10004
(212) 483-9000
William Warfield Ross
1320 19th Street, N.W.
Washington, D.C. 20036
(202) 296-2121
Ashley Sellers
Sellers, Conner & Cuneo
1625 K Street, N.W.
Washington, D.C. 20006
(202) 452-7500
Cornelius B. Kennedy
Chairman, ABA Administrative Law Section
Kennedy & Webster
888 17th Street, N.W.
Washington, D.C. 20006
(202) 298-8208
Jerre S. Williams
Past Chairman, ABA Administrative Law Section
[listed above as past ACUS Chairman]
Marion Edwyn Harrison
Past Chairman, ABA Administrative Law Section
[listed above in ACUS Council]
Harold L. Russell
LIBRARY
Past Chairman, ABA Administrative Law Section
[listed above in ACUS Council]
GERALD
Administrative Conference Staff
Richard K. Berg
Executive Secretary
Stephen H. Klitzman
Staff Attorney
Legal Scholars who influenced this legislation
Kenneth Culp Davis
Professor
University of San Diego
School of Law
San Diego, California 92110
(714) 291-6480 x335
Clark Byse
Professor
Harvard Law School
Cambridge, Massachusetts 02138
(617) 495-3168
Walter Gellhorn
[listed above in ACUS Council]
Roger C. Cramton
[listed above as former ACUS Chairman]
Congress
The bill was introduced by Senators Kennedy and Mathias.
It was reported out by the Judiciary Subcommittee on Administrative
Practice and Procedure, Senator Kennedy, Chairman, and Senator Thurmond,
ranking Minority member. Thomas M. Susman, Chief Counsel of the
Subcommittee staff, was very helpful in advancing this legislation (as
was Minority Counsel William Coates, who is no longer with the staff).
On the House side the bill was reported out by the Judiciary Subcommittee
on Administrative Law and Governmental Relations, Congressman Flowers,
Chairman, and Congressman Moorhead, ranking Minority member. Subcommittee
Counsel William P. Shattuck and Minority Counsel Alan F. Coffey were
helpful on this legislation.
UNITED
GERALD
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
2120 L STREET, N.W., SUITE 500
WASHINGTON, D.C. 20037
(202) 254-7020
OFFICE OF
THE CHAIRMAN
October 15, 1976
MEMORANDUM FOR: Kenneth A. Lazarus, Esq.
Associate Counsel to the President
FROM: Robert Chairman A. Anthony RAA
SUBJECT: Signing of S. 800
The President may wish to consider a signing ceremony for S. 800.
S. 800 removes the defense of sovereign immunity and certain other
technical obstacles to so-called nonstatutory judicial review of federal
administrative action (summarized in Attachment A). Its provisions have
long been favored by the American Bar Association, the Administrative
Conference of the United States, and students of administrative law and
federal jurisdiction generally.
This Act probably will not change outcomes in large numbers of
cases. But it will simplify court review of agency action, by eliminating
certain defenses and issues which have puzzled lawyers and judges, compli-
cated and lengthened judicial proceedings, and occasionally worked hardship
and injustice on private plaintiffs.
Thus, it will be easier for citizens to have courts decide the merits
of their disputes with the Government. The bill is not expected to increase
the caseload of the federal courts.
While the problems it deals with are somewhat technical, the bill is
of interest to a knowledgeable and influential community. In addition, it
has important symbolic value as representing a commitment by the Government
to deal fairly with its citizens and to subject its actions to the test of
the rule of law.
It should be especially noted that passage of the bill was achieved
after the Department of Justice this year discontinued its opposition to
the provision abolishing the sovereign immunity defense.
A list of persons who might be invited to a signing ceremony is
enclosed (Attachment B).
GERALU
ATTACHMENT A
SUMMARY OF S.800
S.800 implements three recommendations of the Administrative Conference,
Nos. 68-7, 69-1 and 70-1. It removes certain technical obstacles to suits for
judicial review of administrative action. Section 1 of the bill amends 5 U.S.C
§702 to remove the defense of sovereign immunity in suits for nonstatutory review
of agency action (other than suits for money damages) and amends 5 U.S.C §703 to
permit the plaintiff to name as defendant in such a suit the officer, the agency,
or the United States. Section 2 amends 28 U.S.C $1331 to eliminate, in suits
against the United States, federal agencies, or officers, the $10,000 amount in
controversy required to establish federal question jurisdiction. Section 3
permits a plaintiff to implead nonfederal defendants in a suit against the United
States or a federal officer or agency without losing the benefit of the liberal
venue and service of process provisions available under 28 U.S.C $1391(e).
FORD
&
GERALD
ATTACHMENT B
POSSIBLE INVITEES TO SIGNING CEREMONY ON S. 800
Council of the Administrative Conference
List attached
The Chairman and all other members were appointed to their
current terms by President Ford, except for Messrs. Gellhorn,
Harrison and Russell, who were appointed by President Nixon.
The Council will be meeting in Washington October 22.
Former Chairmen of the Administrative Conference
Honorable Antonin Scalia
Assistant Attorney General
Office of Legal Counsel
Department of Justice
Washington, D.C. 20530
(202) 739-2041
Dean Roger C. Cramton
Cornell Law School
Ithaca, New York 14853
(607) 256-3527
Professor Jerre S. Williams
University of Texas Law School
2500 Red River
Austin, Texas 78705
(512) 471-5151
Department of Justice
Attorney General Levi
Deputy Attorney General Tyler (listed above in ACUS Council)
Assistant Attorney General Scalia (listed above as former ACUS Chairman)
Assistant Attorney General Rex Lee
GERALD ? FORD
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
2120 L STREET, N.W., SUITE 500
WASHINGTON, D.C. 20037
September 30, 1976
(202) 254-7020
OFFICE OF
THE CHAIRMAN
MEMBERS OF THE COUNCIL
Robert A. Anthony
Chairman
Suite 500, 2120 L Street, N.W.
Washington, D.C. 20037
Telephone: (202) 254-7020
Harold R. Tyler, Jr.
Vice Chairman
Deputy Attorney General
Department of Justice
Washington, D.C. 20530
Telephone: (202) 739-2101
John W. Barnum
Harold L. Russell
Deputy Secretary
Gambrell, Russell, Killorin,
Department of Transportation
& Forbes
Washington, D.C. 20590
4000 First National Bank Building
Telephone: (202) 426-2222
Atlanta, Georgia 30303
Telephone: (404) 658-1620
Philip W. Buchen
Counsel to the President
Richard C. Van Dusen
The White House
Dickinson, Wright, McKean & Cudlip
Washington, D.C. 20500
800 First National Building
Telephone: (202) 456-2632
Detroit, Michigan 48226
Telephone: (313) 223-3500
Walter Gellhorn
Professor
Richard E. Wiley
Columbia University Law School
Chairman
435 West 116th Street
Federal Communications Commission
New York, New York 10027
Washington, D.C. 20554
Telephone: (212) 280-2664
Telephone: (202) 632-6336
Marion Edwyn Harrison
Edwin M. Zimmerman
Harrison, Lucey, Sagle & Solter
Covington & Burling
1701 Pennsylvania Avenue, N.W.
888 - 16th Street, N.W.
Washington, D.C. 20006
Washington, D.C. 20006
Telephone: (202) 298-9030
Telephone: (202) 452-6042
Betty Southard Murphy
Chairman
National Labor Relations Board
Washington, D.C. 20570
Telephone: (202) 254-9445
GERALD & FORD LIBRARY
American Bar Association
Lawrence Edward Walsh
Past President of ABA
1 Chase Manhattan Plaza
44th Floor
New York, New York 10005
(212) HA2-3400
Justin Stanley
President
American Bar Association
1155 E. 60th Street
Chicago, Illinois 60637
(312) 947-4000
or
(312) 782-0600
Whitney North Seymour
Past President of ABA
One Battery Park Plaza
New York, New York 10004
(212) 483-9000
William Warfield Ross
1320 19th Street, N.W.
Washington, D.C. 20036
(202) 296-2121
Ashley Sellers
Sellers, Conner & Cuneo
1625 K Street, N.W.
Washington, D.C. 20006
(202) 452-7500
Cornelius B. Kennedy
Chairman, ABA Administrative Law Section
Kennedy & Webster
888 17th Street, N.W.
Washington, D.C. 20006
(202) 298-8208
Jerre S. Williams
Past Chairman, ABA Administrative Law Section
[listed above as past ACUS Chairman]
FORD
Marion Edwyn Harrison
LIBRARY
Past Chairman, ABA Administrative Law Section
[listed above in ACUS Council]
GERALD
Harold L. Russell
Past Chairman, ABA Administrative Law Section
[listed above in ACUS Council]
Administrative Conference Staff
Richard K. Berg
Executive Secretary
Stephen H. Klitzman
Staff Attorney
Legal Scholars who influenced this legislation
Kenneth Culp Davis
Professor
University of San Diego
School of Law
San Diego, California 92110
(714) 291-6480 x335
Clark Byse
Professor
Harvard Law School
Cambridge, Massachusetts 02138
(617) 495-3168
Walter Gellhorn
[listed above in ACUS Council]
Roger C. Cramton
[listed above as former ACUS Chairman]
Congress
The bill was introduced by Senators Kennedy and Mathias.
It was reported out by the Judiciary Subcommittee on Administrative
Practice and Procedure, Senator Kennedy, Chairman, and Senator Thurmond,
ranking Minority member. Thomas M. Susman, Chief Counsel of the
Subcommittee staff, was very helpful in advancing this legislation (as
was Minority Counsel William Coates, who is no longer with the staff).
On the House side the bill was reported out by the Judiciary Subcommittee
on Administrative Law and Governmental Relations, Congressman Flowers,
Chairman, and Congressman Moorhead, ranking Minority member. Subcommittee
Counsel William P. Shattuck and Minority Counsel Alan F. Coffey were
helpful on this legislation.
& FORD LIBRARY
GERALD
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
2120 L STREET, N.W., SUITE 500
WASHINGTON, D.C. 20037
(202) 254-7020
OFFICE OF
THE CHAIRMAN
October 15, 1976
MEMORANDUM FOR: Kenneth A. Lazarus, Esq.
Associate Counsel to the President
FROM: Robert Chairman A. Anthony RAA
SUBJECT: Signing of S. 800
The President may wish to consider a signing ceremony for S. 800.
S. 800 removes the defense of sovereign immunity and certain other
technical obstacles to so-called nonstatutory judicial review of federal
administrative action (summarized in Attachment A). Its provisions have
long been favored by the American Bar Association, the Administrative
Conference of the United States, and students of administrative law and
federal jurisdiction generally.
This Act probably will not change outcomes in large numbers of
cases. But it will simplify court review of agency action, by eliminating
certain defenses and issues which have puzzled lawyers and judges, compli-
cated and lengthened judicial proceedings, and occasionally worked hardship
and injustice on private plaintiffs.
Thus, it will be easier for citizens to have courts decide the merits
of their disputes with the Government. The bill is not expected to increase
the caseload of the federal courts.
While the problems it deals with are somewhat technical, the bill is
of interest to a knowledgeable and influential community. In addition, it
has important symbolic value as representing a commitment by the Government
to deal fairly with its citizens and to subject its actions to the test of
the rule of law.
It should be especially noted that passage of the bill was achieved
after the Department of Justice this year discontinued its opposition to
the provision abolishing the sovereign immunity defense.
A list of persons who might be invited to a signing ceremony is
enclosed (Attachment B).
FORU
A
1978m
GERALD
ATTACHMENT A
SUMMARY OF S.800
S.800 implements three recommendations of the Administrative Conference,
Nos. 68-7, 69-1 and 70-1. It removes certain technical obstacles to suits for
judicial review of administrative action. Section 1 of the bill amends 5 U.S.C
$702 to remove the defense of sovereign immunity in suits for nonstatutory review
of agency action (other than suits for money damages) and amends 5 U.S.C §703 to
permit the plaintiff to name as defendant in such a suit the officer, the agency,
or the United States. Section 2 amends 28 U.S.C §1331 to eliminate, in suits
against the United States, federal agencies, or officers, the $10,000 amount in
controversy required to establish federal question jurisdiction. Section 3
permits a plaintiff to implead nonfederal defendants in a suit against the United
States or a federal officer or agency without losing the benefit of the liberal
venue and service of process provisions available under 28 U.S.C §1391(e).
&
GERALD
ATTACHMENT B
POSSIBLE INVITEES TO SIGNING CEREMONY ON S. 800
Council of the Administrative Conference
List attached
The Chairman and all other members were appointed to their
current terms by President Ford, except for Messrs. Gellhorn,
Harrison and Russell, who were appointed by President Nixon.
The Council will be meeting in Washington October 22.
Former Chairmen of the Administrative Conference
Honorable Antonin Scalia
Assistant Attorney General
Office of Legal Counsel
Department of Justice
Washington, D.C. 20530
(202) 739-2041
Dean Roger C. Cramton
Cornell Law School
Ithaca, New York 14853
(607) 256-3527
Professor Jerre S. Williams
University of Texas Law School
2500 Red River
Austin, Texas 78705
(512) 471-5151
Department of Justice
Attorney General Levi
Deputy Attorney General Tyler (listed above in ACUS Council)
Assistant Attorney General Scalia (listed above as former ACUS Chairman)
Assistant Attorney General Rex Lee
TRUST
OERALD
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
2120 L STREET, N.W., SUITE 500
WASHINGTON, D.C. 20037
September 30, 1976
(202) 254-7020
OFFICE OF
THE CHAIRMAN
MEMBERS OF THE COUNCIL
Robert A. Anthony
Chairman
Suite 500, 2120 L Street, N.W.
Washington, D.C. 20037
Telephone: (202) 254-7020
Harold R. Tyler, Jr.
Vice Chairman
Deputy Attorney General
Department of Justice
Washington, D.C. 20530
Telephone: (202) 739-2101
John W. Barnum
Harold L. Russell
Deputy Secretary
Gambrell, Russell, Killorin,
Department of Transportation
& Forbes
Washington, D.C. 20590
4000 First National Bank Building
Telephone: (202) 426-2222
Atlanta, Georgia 30303
Telephone: (404) 658-1620
Philip W. Buchen
Counsel to the President
Richard C. Van Dusen
The White House
Dickinson, Wright, McKean & Cudlip
Washington, D.C. 20500
800 First National Building
Telephone: (202) 456-2632
Detroit, Michigan 48226
Telephone: (313) 223-3500
Walter Gellhorn
Professor
Richard E. Wiley
Columbia University Law School
Chairman
435 West 116th Street
Federal Communications Commission
New York, New York 10027
Washington, D.C. 20554
Telephone: (212) 280-2664
Telephone: (202) 632-6336
Marion Edwyn Harrison
Edwin M. Zimmerman
Harrison, Lucey, Sagle & Solter
Covington & Burling
1701 Pennsylvania Avenue, N.W.
888 - 16th Street, N.W.
Washington, D.C. 20006
Washington, D.C. 20006
Telephone: (202) 298-9030
Telephone: (202) 452-6042
Betty Southard Murphy
Chairman
National Labor Relations Board
Washington, D.C. 20570
FORD
LIBRA
Telephone: (202) 254-9445
y
GERALD
American Bar Association
Lawrence Edward Walsh
Past President of ABA
1 Chase Manhattan Plaza
44th Floor
New York, New York 10005
(212) HA2-3400
Justin Stanley
President
American Bar Association
1155 E. 60th Street
Chicago, Illinois 60637
(312) 947-4000
or
(312) 782-0600
Whitney North Seymour
Past President of ABA
One Battery Park Plaza
New York, New York 10004
(212) 483-9000
William Warfield Ross
1320 19th Street, N.W.
Washington, D.C. 20036
(202) 296-2121
Ashley Sellers
Sellers, Conner & Cuneo
1625 K Street, N.W.
Washington, D.C. 20006
(202) 452-7500
Cornelius B. Kennedy
Chairman, ABA Administrative Law Section
Kennedy & Webster
888 17th Street, N.W.
Washington, D.C. 20006
(202) 298-8208
Jerre S. Williams
Past Chairman, ABA Administrative Law Section
[listed above as past ACUS Chairman]
Marion Edwyn Harrison
Past Chairman, ABA Administrative Law Section
[listed above in ACUS Council]
& FORD LIBRARY
Harold L. Russell
Past Chairman, ABA Administrative Law Section
GERALD
[listed above in ACUS Council]
Administrative Conference Staff
Richard K. Berg
Executive Secretary
Stephen H. Klitzman
Staff Attorney
Legal Scholars who influenced this legislation
Kenneth Culp Davis
Professor
University of San Diego
School of Law
San Diego, California 92110
(714) 291-6480 x335
Clark Byse
Professor
Harvard Law School
Cambridge, Massachusetts 02138
(617) 495-3168
Walter Gellhorn
[listed above in ACUS Council]
Roger C. Cramton
[listed above as former ACUS Chairman]
Congress
The bill was introduced by Senators Kennedy and Mathias.
It was reported out by the Judiciary Subcommittee on Administrative
Practice and Procedure, Senator Kennedy, Chairman, and Senator Thurmond,
ranking Minority member. Thomas M. Susman, Chief Counsel of the
Subcommittee staff, was very helpful in advancing this legislation (as
was Minority Counsel William Coates, who is no longer with the staff).
On the House side the bill was reported out by the Judiciary Subcommittee
on Administrative Law and Governmental Relations, Congressman Flowers,
Chairman, and Congressman Moorhead, ranking Minority member. Subcommittee
Counsel William P. Shattuck and Minority Counsel Alan F. Coffey were
helpful on this legislation.
T FORD LIBRARY
GERALD