Wednesday, May 12, 2010

Circuits Split Whether a Claim May Be Brought Solely to Recover Attorneys’ Fees Incurred in a Title VII Administrative Proceeding

In Porter v. Winter, 2010 U.S. App. LEXIS 9205 (9th Cir. May 6, 2010), Judge Reinhardt, writing for a panel that also included Judges Schroeder and Bea, diverged from the holding of the Fourth Circuit in Chris v. Tenet, 221 F.3d 648 (4th Cir. 2000), which held that the federal courts do not have subject matter jurisdiction over claims exclusively for Title VII legal fees. 
Some background is important to understand the split among the circuits.  In 1984, the Supreme Court decided New York Gaslight Club, Inc. v. Carey, 447 U.S. 54 (1984), in which the Court held that two sections of Title VII “authorize a federal-court action to recover an award of attorney’s fees for work done by the prevailing complainant in state proceedings to which the complainant was referred pursuant to the provisions of Title VII.”  Id. at 71.  In reaching this conclusion, the majority stated:
“It would be anomalous to award fees to the complainant who is unsuccessful or only partially successful in obtaining state or local remedies, but to deny an award to the complainant who is successful in fulfilling Congress' plan that federal policies be vindicated at the state or local level. Since it is clear that Congress intended to authorize fee awards for work done in administrative proceedings, we must conclude that [Title VII's] authorization of a civil suit in federal court encompasses a suit solely to obtain an award of attorney's fees for legal work done in state and local proceedings . . . We note that if fees were authorized only when the complainant found an independent  reason for suing in federal court under Title VII, such a ground almost always could be found. . . . The existence of an incentive to get into federal court, such as the availability of a fee award, would ensure that almost all Title VII complainants would abandon state proceedings as soon as possible. This, however, would undermine Congress' intent to encourage full use of state remedies.”  Id. at 66, n.6.
In Carey, the plaintiff initially sought relief in federal court on the merits of her claims in addition to her claim for attorney’s fees.  Id. at 58.  Justice Stevens, concurring, stated that “this federal litigation was commenced in order to obtain relief . . . on the merits . . . and not simply to recover attorney’s fees.”  Id. at 71.  Justice Stevens went on to state as follows:  “Whether Congress intended to authorize a separate federal action solely to recover costs, including attorney’s fees . . . is not only doubtful but is a question that is plainly not presented . . .” 
Two years later, in 1986, the Court decided North Carolina Dep’t of Transp. v. Crest Street Community Council, Inc., in which it discussed the Carey decision and dismissed certain statements that might support the notion that one could sue solely to recover attorneys’ fees as “dicta” and “exaggerated.”  479 U.S. 6, 13-14 (1986).  In Crest Street, a Title VI of the Civil Rights Act of 1964 case, the underlying dispute had been settled, and the Community Council filed a civil action in federal court to recover attorneys’ fees under 42 U.S.C. § 1988(b).  The Crest Street Court held that a suit for attorneys’ fees is not an action to enforce any of the civil rights law listed in § 1988, and therefore the federal courts are not authorized to entertain an action under that section solely for attorneys’ fees. 
Two years later, in 1988, the Eighth Circuit in Jones v. American State Bank, held that “the policy arguments” set forth in the Carey decision dictated the result that Title VII authorized a civil action solely for attorneys’ fees.  857 F.2d 494, 498 (8th Cir. 1988); see also Slade v. U.S. Postal Serv., 952 F.2d 357, 360-61 (10th Cir. 1991) (Slade is distinguishable from Carey as Slade originally sued for substantive relief, and the case eventually devolved into a claim only for attorneys’ fees).  The Eighth Circuit did not address the Crest StreetCrest Street, which did not involve mandatory administrative deferral.  Id. decision and other than simply noting that the mandatory administrative deferral requirements of Title VII distinguished the case before it from at 498 n.10.
In 1999, Judge Ellis of the Eastern District of Virginia held in Chris v. Tenet, 57 F. Supp. 330 (E.D. Va. 1999), that the phrase in Title VII “actions brought under [Title VII]” referred only to legal proceedings instituted to enforce substantive rights guaranteed by Title VII and that accordingly the federal district courts lacked subject matter jurisdiction over a claim brought solely for attorneys’ fees.  In 2000, a panel of the Fourth Circuit affirmed, 221 F.3d 648, and the Supreme Court thereafter denied cert, 2001 U.S. LEXIS 1722.
The issue seemed resolved until last week when the panel of the Ninth Circuit headed by Judge Reinhardt reversed the 2007 decision of District Judge O’Neill (2007 U.S. Dist. LEXIS 43918 (E.D. Cal. June 5, 2007)), in which that court rejected the notion that a Title VII plaintiff could sue solely for attorneys’ fees.  In reversing, the Ninth Circuit embraced the rationale of the Eighth Circuit in Jones, which had rejected the Fourth Circuit’s Chris decision as being based upon a “distinction without a difference.”  Jones, 857 F.2d at 497.  Instead, the Ninth Circuit embraced Carey’s “dicta” noting Justice Stevens’ concurrence by stating that “none of the six justices in the majority agreed with [Stevens’] contention.”  With respect to the subsequent Supreme Court decision in Crest Street, the court distinguished it on the ground that it is an interpretation of § 1988; whereas Carey involves an interpretation of Title VII. 
So, we now await the inevitable petition for certiorari and potentially a resolution by the Supreme Court.

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