PARKER v. CALIFANO

Opinion for the court filed by Circuit Judge WRIGHT.

Concurring opinion filed by Circuit Judge ROBB.

J. SKELLY WRIGHT, Circuit Judge:

This appeal is from the District Court's judgment1 requiring appellant to pay attorneys' fees incurred by appellee. The only issue presented is whether in a suit brought by a federal employee under Title VII of the Civil Rights Act of 19642 — in which the employee is the "prevailing party"3 — a federal District Court has discretion to award attorneys' fees that include compensation for legal services performed in connection with related administrative proceedings.

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

I. THE FACTS

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

Shortly after the complaint was filed, OE's Equal Employment Office began an investigation of the discrimination charges. An investigative report was filed on September 7, 1973. It concluded that appellee had been discriminated against and recommended that she be promoted to GS-13. Apparently no further action was taken until the spring of 1974 when HEW promoted appellee to GS-11, with assurances that she would soon be promoted to GS-135 as the original investigative report had recommended. In the spring of 1975, however, HEW issued its final determination stating that it would disregard the investigative report and take no further remedial action on appellee's discrimination claim.

Consequently, appellee — still a GS-11 — filed the instant suit on May 21, 1975.6 Appellant filed his answer on July 22, 1975 and denied all allegations in the complaint. Despite these denials, less than two months later — on September 18, 1975 — HEW issued a formal decision to the effect that appellee had been discriminated against and should be retroactively promoted to GS-13 with appropriate back pay.7

On November 14, 1975 the District Court entered an order approving this settlement of the suit but reserving the question of attorneys' fees. After considering the parties' submissions on the question, the District Court on April 1, 1976 awarded attorneys' fees of $8,770.36.8 The award included compensation for time spent on the case at both "administrative and judicial levels." Parker v. Matthews [sic], 411 F.Supp. 1059, 1066 (D.D.C.1976). This appeal followed.9

II. THE STATUTORY FRAMEWORK

Title VII of the Civil Rights Act of 196410 prohibits employment discrimination based on race, color, religion, sex, or national origin. Sections 703, 704 of Title VII, 42 U.S.C. §§ 2000e-2, 2000e-3 (1970 & Supp. V 1975). Originally, however, this statutory prohibition was inapplicable to federal employees. Section 701, 42 U.S.C. § 2000e(b). See Brown v. GSA, 425 U.S. 820, 825, 96 S.Ct. 1961, 1964, 48 L.Ed.2d 402 (1976). Thus, "[a]lthough federal employment discrimination clearly violated both the Constitution, Bolling v. Sharpe, 347 U.S. 497 [74 S.Ct. 693, 98 L.Ed. 884] (1954), and statutory law, 5 U.S.C. § 7151," specific implementing legislation was lacking and "the effective availability of either administrative or judicial relief was far from sure." Id. In fact, federal employees faced numerous and difficult obstacles in attempting to enforce their right of freedom from employment discrimination. Hackley v. Roudebush, 171 U.S.App.D.C. 376, 520 F.2d 108, 115, 128-129, 132, 133-136 & n.67 (1975).

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

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

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

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

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

Our analysis leads us to reject the limitation suggested by appellant and to conclude that in a Title VII suit, brought by a federal employee, attorneys' fees awarded under Section 706(k) may include compensation for work done at both judicial and administrative levels. In so holding our decision is consistent with the majority of cases13 in which the question has been considered.14

III. THE STATUTORY LANGUAGE

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

Section 706(k) grants federal District Courts discretion to award reasonable attorneys' fees and costs to the prevailing party "[i]n any action or proceeding under this subchapter [i. e., Title VII] * * *." Both prepositional phrases — "in any action or proceeding" and "under this subchapter" — suggest that Congress did not intend to limit awards of fees and costs to services performed after filing of the judicial complaint, since this subchapter requires an agency proceeding before court action.15

Appellant nevertheless contends that the reference to "action or proceeding" is a reference simply to a civil action brought in federal court. Ignoring the disjunctive link between the two words and the familiar principle that statutory language should be construed so as to avoid redundancy,16 appellant argues that, in Section 706(k) as incorporated by Section 717(d), 42 U.S.C. § 2000e-16(d), "action" and "proceeding" each refer to a suit in federal court. However, as one court has held in considering the same question, "Had Congress wished to restrict an award of an attorney's fee to only suits filed in court, there would have been no need to add the words `or proceeding' to `any action.' But `proceeding' is a broader term than `action' and would include an administrative as well as judicial proceeding." Johnson v. United States, D.Md. Civil Action No. H-74-1343 (June 8, 1976), slip op. at 7, aff'd, 554 F.2d 632 (4th Cir. 1977).

In an effort to bolster his argument that neither "action" nor "proceeding" refers to administrative proceedings, appellant cites selectively to other provisions in Title VII where the word "proceeding(s)" is used.17 In particular, appellant asserts that "proceeding" in Section 706(k) refers to enforcement proceedings which Section 706(i), 42 U.S.C. § 2000e-5(i) (Supp. V 1975), authorizes the Equal Employment Opportunity Commission (EEOC) to institute in District Court. That subsection provides that "[i]n any case in which an employer, employment agency, or labor organization fails to comply with an order of a court issued in a civil action brought under this section [Section 706, 42 U.S.C. § 2000e-5], the [EEOC] may commence proceedings to compel compliance with such order."18 Also, appellant notes that the District Court suit authorized by this subsection is characterized as a "proceeding" by Section 706(j), 42 U.S.C. § 2000e-5(j) (Supp. V 1975).

Appellant's argument, however, is wide of the mark. Neither appellee nor this court assumes that the term "proceeding(s)" as used in Title VII can never refer to a court suit. Quite the contrary, echoing Johnson v. United States, supra, we believe that "proceeding" is broad enough to be properly construed to refer to either judicial or administrative proceedings. This view is borne out by other uses of the term in the Section 706, 42 U.S.C. § 2000e-5, enforcement structure where it is clear beyond any doubt that Congress was referring to administrative proceedings. Section 706(b), 42 U.S.C. § 2000e-5(b) (Supp. V 1975), discusses "findings and orders made by State or local authorities in proceedings commenced under State or local law pursuant to the requirements of subsections (c) and (d) of this section." (Emphasis added.) Section 706(c), 42 U.S.C. § 2000e-5(c) (Supp. V 1975), which requires that in private sector charges of employment discrimination EEOC defer, for at least a 60-day period, to the operation of applicable state or local law, refers repeatedly to "proceedings":

(Emphasis added.) See also Section 706(e), 42 U.S.C. § 2000e-5(e) (Supp. V 1975). Since the required deferral is only for 60 days, Congress hardly could be presumed to have intended to defer only to state or local judicial proceedings. Rather, it was clearly administrative proceedings to which Congress referred, see Love v. Pullman, 404 U.S. 522, 524-526, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972), and, in fact, many states have by now established, as Congress envisioned, administrative proceedings to handle claims of employment discrimination. Even appellant does not deny that, in these provisions, Congress was referring to administrative proceedings.

Furthermore, we find particularly instructive a comparison of the language of the attorney fee provision of Title VII, Section 706(k), 42 U.S.C. § 2000e-5(k), with that of the attorney fee provision of Title II, Section 204(b) of the Civil Rights Act of 1964, 42 U.S.C. § 2000a-3(b) (1970). The provisions were enacted contemporaneously in 1964 as part of the Act. The language of the two subsections is identical except that, where Section 706(k) refers to "any action or proceeding under this subchapter," Section 204(b) refers simply to "any action commenced pursuant to this subchapter." (Emphasis added.) This material difference is understandable only in light of the fact that the enforcement scheme of Title II is solely judicial, see Newman v. Piggie Park Enterprises, 390 U.S. 400, 401-402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968), while the enforcement scheme of Title VII is both administrative and judicial.19 Cf. Lea v. Cone Mills Corp., 438 F.2d 86, 90-91 (4th Cir. 1971) (Boreman, J., concurring in part and dissenting in part). The inclusion in Section 706(k) of the reference to "proceeding" — in addition to "action" — appears to be a clear manifestation of Congress' intent that the attorney fee provision should apply to both aspects of the Title VII enforcement scheme. Admittedly, Titles II and VII differ in that "[w]hen a plaintiff brings an action under [Title II], he cannot recover damages," Newman v. Piggie Park Enterprises, supra, 390 U.S. at 402, 88 S.Ct. at 966, while a plaintiff can, inter alia, recover damages under Title VII.20 But the Piggie Park rationale has been found applicable to Title VII cases as well. See, e. g., Evans v. Sheraton Park Hotel, 164 U.S.App.D.C. 86, 503 F.2d 177, 189 (1974); Lea v. Cone Mills Corp., supra, 438 F.2d at 88;21 Nussbaum, Attorney's Fees in Public Interest Litigation, 48 N.Y.U.L.Rev. 301, 321-322 (1973) (collecting cases). Moreover, the purposes of the counsel fee provision in the two Titles are, in important respects, parallel.22

In short, we decline to join appellant in straining to construe the word "proceeding" in as narrow and technical sense as possible so as to make it superfluous and the phrase "action or proceeding" a redundancy.23 This was also the conclusion reached in McMullen v. Warner, 416 F.Supp. 1163 (D. D.C.1976), a Title VII federal employment discrimination case, where Judge Sirica awarded attorneys' fees to an employee of the United States Navy "for the administrative portion of this case as well as for the judicial portion." Judge Sirica stated:

416 F.Supp. at 1167.

That "any action or proceeding" should be construed in its broader rather than in its narrower sense is made even more obvious by the fact that that phrase is followed by the phrase "under this subchapter [i. e., Title VII]." To interpret the language "any action or proceeding under [Title VII]" as excluding the administrative proceedings that constitute such a central part of Title VII is to ignore not only the statutory language itself but also the authoritative judicial construction that it has received. In Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147 (1974), the Supreme Court plainly stated:

(Footnote omitted.) The 1972 amendments to the Act, extending its applicability to federal employees, were no less clear as to the interrelatedness of administrative and judicial proceedings. This was stressed in numerous statements by the Supreme Court in its recent opinion in Brown v. GSA, supra, which described the nature of the enforcement scheme of which the attorney fee provision is a part. The Court stated:

425 U.S. at 829-833, 96 S.Ct. at 1966 (emphasis added; footnotes omitted). See also Grubbs v. Butz, 169 U.S.App.D.C. 82, 514 F.2d 1323, 1329 (1975); Hackley v. Roudebush, supra, 520 F.2d at 156-159. The expansive reference to "any action or proceeding under [Title VII]" was plainly intended to refer to this blend of administrative and judicial powers and not simply to one segment of it.

The instant case, in fact, is representative of the operation of the integrated enforcement scheme created by Congress. Because of the structure of Title VII enforcement procedures, the administrative and judicial proceedings in this case, as in Johnson v. United States, supra, "were part and parcel of the same litigation for which an attorney's fee is now sought." 554 F.2d at 633.

In Chandler v. Roudebush, 425 U.S. 840, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976), the Supreme Court rejected the Government's argument that federal employees do not have a right to trial de novo subsequent to Title VII administrative proceedings. The Court noted:

425 U.S. at 848, 96 S.Ct. at 1953, quoting Lynch v. Alworth-Stephens Co., 267 U.S. 364, 370, 45 S.Ct. 274, 69 L.Ed. 660 (1925). Mindful of the Court's admonition, we reject the Government's attempt to strain the statutory language so as to curtail a prevailing federal employee's Title VII right to an award of attorneys' fees just as the Supreme Court in Chandler rejected the Government's analogous attempt to curtail a federal employee's Title VII right to a trial de novo.

IV. THE PURPOSES OF TITLE VII

We find, therefore, that both the plain language of the statute itself and the case law in which that language has been applied support the District Court's decision. In addition, we are compelled to note that adoption of the position urged by appellant would seriously impinge on effective implementation of Title VII's established purposes.24

In Newman v. Piggie Park Enterprises, supra, the Supreme Court construed Title II's attorney fee provision which, as already discussed, is slightly narrower but otherwise identical to that of Title VII. In ruling that the congressional policy of encouraging private enforcement of civil rights legislation required a construction favoring wide availability of attorneys' fees, the Court stated:

390 U.S. at 401, 88 S.Ct. at 966 (footnote omitted). Relatedly, the Court also noted that "Congress * * * enacted the provision for counsel fees — not simply to penalize litigants who deliberately advance arguments they know to be untenable but, more broadly, to encourage individuals injured by racial discrimination to seek judicial relief under Title II." Id. at 402, 88 S.Ct. at 966.25 Similarly, the attorney fee provision of Title VII has the broad purpose of abetting enforcement of that Title by encouraging individuals injured by racial discrimination to seek the relief made available thereunder — relief for which administrative proceedings are essential.

Specifically, Piggie Park held that, notwithstanding the statutory language that the District Court, "in its discretion," may allow the prevailing party fees and costs, the purpose of encouraging private enforcement dictated that "one who succeeds in obtaining an injunction under that Title should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." 390 U.S. at 402, 88 S.Ct. at 966. Piggie Park was explicitly cited with approval in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), the leading decision as to when attorneys' fees may be awarded.

Courts construing the fees and costs provisions of Title VII have adopted the Piggie Park rationale that statutes authorizing award of attorneys' fees as part of private enforcement schemes in the Civil Rights Act should be broadly interpreted. In Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 716 (5th Cir. 1974), the court said with respect to Section 706(k): "This Court, as part of its obligation `to make sure that Title VII works,' has liberally applied the attorney's fee provision of Title VII, recognizing the importance of private enforcement of civil rights legislation." (Footnote omitted.) This court adopted the liberal construction of Section 706(k), as enunciated in Johnson, in Evans v. Sheraton Park Hotel, supra, 503 F.2d at 187-189. Furthermore, failure to award attorneys' fees to a prevailing party in a Title VII action has been held an abuse of the District Court's discretion. Lea v. Cone Mills Corp., supra, 438 F.2d at 88.

The policy favoring private enforcement of Title VII is arguably even more compelling when a federal agency or official is the defendant. Unlike private sector employees, federal employee complainants are not merely private attorneys general; they are the only attorneys general under the enforcement scheme adopted in Section 717, 42 U.S.C. § 2000e-16 (Supp. V 1975). Suits in behalf of federal employees by the Attorney General or EEOC are not authorized against federal agencies. Indeed, the Attorney General is frequently counsel for the other side.26 Also unlike private sector employees, federal employees must first bring their employment discrimination grievances, not to an independent state or local administrative body27 or to EEOC, but to the very agency about whose practices they are complaining. Id.28 Partly for these reasons, no doubt, courts consistently have awarded attorneys' fees to prevailing plaintiffs in employment discrimination cases in which a federal agency is the defendant. E. g., McMullen v. Warner, supra; Johnson v. United States, supra; Smith v. Kleindienst, 8 F.E.P. 752 (D.D.C.), aff'd, sub nom. Smith v. Levi, 174 U.S.App.D.C. 70, 527 F.2d 853 (1975) (decision without opinion); Reynolds v. Wise, 375 F.Supp. 145 (N.D.Tex.1974).

Appellant insists, however, that in awarding attorneys' fees a distinction should be made between administrative and judicial enforcement of Title VII. Appellant's entire argument clashes sharply with the clearly perceived structure and aims of the Title. From the passage of the Civil Rights Act of 1964, the Title VII enforcement scheme has included both administrative proceedings and judicial actions. In a passage already quoted29 from Alexander v. Gardner-Denver Co., supra, 415 U.S. at 47, 94 S.Ct. 1011, the Supreme Court emphasized the interrelatedness of Title VII's administrative and judicial enforcement scheme in the private sector. And in numerous passages quoted30 from Brown v. GSA, supra, the Court stressed that Title VII's administrative and judicial enforcement scheme for federal employees was at least as interrelated.

Essentially, appellant's position on whether attorneys' fees for representation at the administrative level are necessary to effectuate Title VII policy is an internally inconsistent attempt to have it both ways. On the one hand, appellant argues that payment of attorneys' fees relates only to a fringe benefit, not to a substantive or procedural defect of the administrative fact-finding process that would prevent equitable resolution of an employee grievance. Moreover, appellant asserts, administrative proceedings in a federal sector Title VII case are non-adversarial. On the other hand, appellant also contends that while the governing regulations give an employee the right to be accompanied, represented, and counseled by a representative of his own choosing at every stage of the proceedings, see 5 C.F.R. § 713.214(b) (1977), paid counsel is unnecessary at this time since employees often have available the services of an attorney without charge.31

Appellant thus seems uncertain whether he wants to argue that for services at the administrative level (1) attorneys' fees are unnecessary because attorneys are unnecessary, or (2) attorneys' fees are unnecessary because, although attorneys are necessary, compensation is not. In any event, we can accept neither argument.

To support his contention that an employee in federal sector Title VII administrative proceedings does not need a lawyer, appellant cites the Discrimination Complaints Examiners Handbook (1973), published by the Office of Federal Equal Employment Opportunity. In fact, however, the contents of the Handbook could more accurately be cited for just the opposite proposition. The Handbook offers the self-description that it "sets forth the basic ground rules which will enable the Examiner to conduct a fair and impartial hearing and render a just decision in discrimination complaint cases." Id., Foreword. In outlining the nature of such a hearing the Handbook sketches a process in which, though not indispensable, lawyers would clearly be of assistance to a lay person. For example, the Handbook makes provision for continuances and describes the grounds for granting or denying them (id. at 20-21), provides for receipt of stipulations (id. at 38), speaks to "relevancy," "materiality," and "repetitiousness" as matters of concern when ruling on admissibility (id. at 47-48), and entitles the parties to participate in drafting written interrogatories (id. at 29). The Handbook, and federal regulations, make clear that in a Title VII administrative hearing the employee is expected to put evidence into the record, offer proof, argue against exclusion of evidence, agree on stipulations, and examine and cross-examine witnesses. See 5 C.F.R. Part 713 (1977). Settlement of the charge is possible at any stage of the proceedings and agreements may, accordingly, have to be negotiated and rights may be waived.

Furthermore, the agency's representative is likely to be a lawyer, which can only serve to exacerbate a non-lawyer plaintiff's disadvantage. Any realistic assessment of Title VII administrative proceedings requires the conclusion that — despite the fact they are not strictly adversarial — an employee would often be ill-advised to embark thereon without legal assistance. Indeed, the services a lawyer may be called upon to perform at the administrative level are well illustrated by the instant litigation. Appellee's counsel has attested that in the course of the administrative proceedings she drafted two administrative complaints and a lengthy affidavit, compiled exhibits, interviewed witnesses, responded to inquiries from the agency investigator, conducted legal research at the request of the agency equal employment opportunity officer, and negotiated a settlement of all charges. Affidavit of Linda P. Singer, JA 20-21.

Turning to appellant's contention that free legal services are available to federal employees in Title VII administrative complaints we note initially that the factual accuracy of the point is disputed. Appellee has submitted an affidavit by the Program Director of the District of Columbia Bar Association Employment Discrimination Complaint Service which asserts that there is a shortage of both private and government attorneys who are "able to provide the time-consuming representation that is necessary for these government EEO cases, within the financial means of the complainants." Appellee's br., Attachment A, ¶ 11. We do not propose to resolve on appeal this factual dispute. We do observe, however, that appellant, in arguing that free legal services are available, relies in part on the availability of attorneys from the employee's own agency. Appellant's br. at 28. Without questioning in any way the competence or integrity of such attorneys, we find this an unsatisfactory alternative to allowing a plaintiff to choose his own counsel from outside his particular agency. A plaintiff who is asked to rely on an attorney from within the very agency about whose practices he is complaining may lack faith in the objectivity of the proceeding. We fear that the absence of independent counsel could only compound the conflict of interest that might be perceived to exist when the agency accused of discrimination must process and rule on the claim.32

In addition to being inconsistent with the recognized policies of Title VII, the distinction between attorneys' fees for services at the administrative and judicial levels is inconsistent with the realities of legal practice. For a conscientious lawyer representing a federal employee in a Title VII claim, work done at the administrative level is an integral part of the work necessary at the judicial level. Most obviously an attorney can investigate the facts of his case at a time when investigation will be most productive. The attorney may thus gain the familiarity with the facts of the case that is so important in the fact-intensive area of employment discrimination. Perhaps even more important, the administrative proceedings allow the attorney to help make a record that can be introduced at any subsequent District Court trial.33 Especially in an instance where development of a thorough administrative record results in an abbreviated but successful trial, refusing to award attorneys' fees for work at the administrative level would penalize the lawyer for his pre-trial effectiveness and his resultant conservation of judicial time. Simply to describe the operation of appellant's suggested distinction between attorneys' fees at the administrative and judicial levels is to emphasize its irrationality.

VI. CONCLUSION

We hold, in sum, that a federal District Court does have discretion, in a Title VII action where the federal employee is the prevailing party, to award attorneys' fees that include compensation for legal services performed prior to filing of the judicial complaint.

Affirmed.

APPENDIX: LEGISLATIVE HISTORY

In order to set forth all the sources which the parties invoke to support their conflicting positions, we append this discussion of the legislative history of Title VII's attorney fee provision.

Both parties rely on various aspects of the legislative materials. In fact, however, although certain isolated remarks lend support to appellant's position, pertinent legislative history considered as a whole reinforces the statutory language and bears out the view that an award of attorneys' fees under Title VII may include compensation for services at the administrative level.

This court reviewed the legislative history of the attorney fee provision in the recent case of Grubbs v. Butz, 179 U.S.App.D.C. 18, 548 F.2d 973 (1976). There the court held that the plaintiff, a federal employee, was not entitled to attorneys' fees for services in a substantially successful interlocutory appeal since success on an interlocutory appeal was not, without more, sufficient to make the plaintiff a "prevailing party" within the language of Section 706(k), 42 U.S.C. § 2000e-5(k) (1970). In the course of its discussion the court reviewed the prelude to the enactment, in 1964, of the provision in question:

548 F.2d at 975 (footnotes omitted).

Effectuation of each of these identified purposes would be hindered by adoption of the Government's position that an award of attorneys' fees may not include work done at the administrative level. Far from making it easier for a plaintiff of modest means to bring a meritorious suit, the Government's view of the limitation on the attorney fee provision would make it more difficult. Even when discrimination is patent, an employee might view his Title VII rights as not "worth" enforcing if he knew he would have to bear the cost of attorneys' fees for the administrative proceedings that are a necessary first step. Additionally, acceptance of the Government's argument might also thwart the second congressional purpose behind enactment of Title VII's attorney fee provision by encouraging rather than deterring needless lawsuits. That is, if the attorney fee provision were held not to authorize fees for work in administrative proceedings, then the complainant and his attorney might well decide that, at the administrative level, they could not afford to take the time necessary to develop complainant's case carefully and fully. Clearly, this would reduce the likelihood that claims could be resolved without resort to court. It would also mean that the administrative record, which can be admitted as evidence in court,1 would tend to be less complete and thus less helpful in conserving judicial time in suits that are brought.

In 1972, as noted in the opinion for the court at 5, 561 F.2d at 322, Congress substantially amended Title VII by, among other things and most important for our purposes, extending its applicability to federal employment. In enacting these amendments Congress left unchanged the wording of the attorney fee provision. With the addition of Section 717(d), 42 U.S.C. § 2000e-16(d) (Supp. V 1975), the original attorney fee provision — along with other provisions from the 1964 Act and from the 1972 amendments thereto — was simply made applicable to federal employees. But even though Title VII's attorney fee provision was left unchanged by the amendments of 1972, the provision was the subject of some inconsistent and not particularly enlightening comments in the Senate floor debates, and in the House and Senate conference reports. Perhaps not surprisingly, appellant and appellee each rely on these Senate debates as favorable authority.

The first arguably relevant passage was a colloquy between Senator Dominick and Senator Javits.2 Senator Dominick — referred to by Senator Williams as "[t]he principal architect of * * * changes dealing with the civil service area"3 — had submitted an amendment (No. 611) to the pending Senate bill (S. 2525) that, inter alia, would have struck the provision that became Section 717(d), 42 U.S.C. § 2000e-16(d).4 Senator Javits, in turn, introduced an amendment to strike that portion of the Dominick amendment. 118 Cong.Rec. 954 (1972). Senator Javits referred to the provisions that Section 717(d) eventually made applicable to federal employees and particularly focused on the question of attorneys' fees. He stated:

118 Cong.Rec. at 954.

Two aspects of Senator Javits' statement are worth noting. The first is that his paramount concern was avoiding the anomaly — which would have resulted had the Dominick amendment been accepted — of private sector employees being able to avail themselves of the attorney fee provision while federal employees could not. The second is that Senator Javits appears to have assumed that the attorney fee provision, as it then read and still does read, had no applicability until an employee brought suit in federal court; i. e., that the attorney fee provision was irrelevant to the administrative proceedings. This assumption was not, however, germane to the point that the Senator was making. If he had assumed that the attorney fee provision did apply to private sector employees' administrative (i. e. EEOC) proceedings, then he would certainly still have found objectionable the threatened disparity between private sector and federal employees.

Shortly after Senator Javits made the statement quoted above, Senator Dominick responded as follows:

118 Cong.Rec. at 956. Senator Dominick thus made clear that he, too, wished to avoid the anomaly of allowing only private sector employees, and not federal employees, to recover attorneys' fees. The quoted passage also suggests, however, that Senator Dominick believed the attorney fee provision was applicable to administrative proceedings. He expressly referred to the "specialized grievance procedure * * * for Federal employees" and concluded that the "language for providing attorney's fees and waiving court costs are applicable." Because Senator Javits' amendment striking the relevant part of Senator Dominick's amendment was adopted immediately after Senator Dominick's statement, no further elucidation was forthcoming.

A second exchange from the 1972 floor debates which bears at least tangentially on the issue sub judice is, unfortunately, also not wholly consistent. The focus of the exchange was another proposed amendment (No. 833), to the pending Senate bill (S. 2525) on Title VII. 118 Cong.Rec. at 1841. The amendment, which was introduced by Senator Gambrell, was discussed in the context of a continuing debate of the enforcement powers that EEOC should have. At the time of the particular discussion pertinent here the Senate envisioned granting the Equal Employment Opportunity Commission independent authority to issue cease and desist orders, requiring hearings before the EEOC, and providing for judicial review of cease and desist orders in federal Courts of Appeals with review based on the record developed during EEOC proceedings and not de novo orders. See S.Rep. No. 92-415, 92d Cong., 1st Sess. 17-22, 22-23, 37-41 (1971); S. 2515, 92d Cong., 1st Sess. § 4(a) (1971). Senator Gambrell's amendment would have expressly permitted EEOC to award attorneys' fees and, further, would have made reimbursement of fees by the Commission or a court mandatory for all respondent small business and labor organizations (as defined and only up to certain limits), regardless of whether they prevailed on the question of discrimination. In the course of his opening remarks on the amendment Senator Gambrell stated:

118 Cong.Rec. at 1841-1842 (emphasis added). Shortly thereafter Senator Gambrell stated:

Id. at 1833. From these passages, it is obvious that Senator Gambrell believed that the pre-existing attorney fee provision permitted the Commission to award to the prevailing party attorneys' fees for services at the administrative level.

After Senator Gambrell had entertained certain questions from other senators concerning interpretation of his amendment, Senator Mondale proposed a substitute amendment. Senator Mondale explained what he saw as two central differences between his proposed substitute amendment and Senator Gambrell's amendment and, in so doing, expressed what also appears to have been a different opinion on the pre-existing law concerning award of attorneys' fees in connection with Title VII litigation. Senator Mondale stated:

Id. at 1845. From this statement, it does seem that Senator Mondale's understanding of the pre-existing Title VII law on attorneys' fees was at variance with Senator Gambrell's, but a more complete characterization of Senator Mondale's views on the issue is difficult. In particular, it is difficult to discern from the passage quoted above whether Senator Mondale believed that neither the Commission nor a federal court could award attorneys' fees for administrative proceedings or, alternatively, only the Commission's authority was so limited. Although the passage quoted might seem to support the former interpretation, the context of the remarks lends some support to the latter.

In any event, neither Senator Gambrell nor Senator Mondale ever identified, much less discussed, their apparent disagreement on the question of attorneys' fees at the administrative level. Rather, Senator Mondale's substitute amendment was discussed briefly and adopted. 118 Cong.Rec. at 1847. As thus modified Senator Gambrell's amendment was then passed by the Senate. Id.

Ultimately, however, the Senate rejected that part of the legislation giving EEOC cease and desist authority and with it the requirement of hearings before EEOC. 118 Cong.Rec. at 3979-3980, 4944. The amended attorney fee provision remained in the bill as passed by the Senate but was deleted in conference. The respective conference reports, referring to this deletion, limited themselves to noting:

S.Rep. No. 92-681, 92d Cong., 2d Sess. 19 (1972); H.R.Rep. No. 92-899, 92d Cong., 2d Sess. 19 (1972). Again, it is difficult to perceive what Congress intended, vis-á-vis attorneys' fees for administrative proceedings, in acting as it did. No mention was made of the express authorization of awards of fees by EEOC which was included in Senator Gambrell's amendment.6 It should be pointed out, however, that if, as the Government claims, such authorization represented a complete change in existing law, its deletion in conference would have merited at least some explanation.

More recently, Congress has provided further and clearer indication of the proper interpretation of the attorney fee provision. On October 19, 1976 the 94th Congress adopted "The Civil Rights Attorney's Fees Awards Act of 1976." Pub.L. No. 94-559, 90 Stat. 2641.7 The Act allows award of attorneys' fees to the "prevailing party" in actions brought under seven specific sections of the United States Code: Sections 1981, 1982, 1983, 1985, 1986, and 2000d et seq. of Title 42, and Section 1681 et seq. of Title 20. See H.R.Rep. No. 94-1558, 94th Cong., 2d Sess. 4 (1976).8

The Act's catalyst is clear. As noted in the Senate report, "The purpose of this amendment 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, [95 S.Ct. 1612, 44 L.Ed.2d 141] (1975), and to achieve consistency in our civil rights laws." S.Rep. No. 94-1011, 94th Cong., 2d Sess. 1 (1976), U.S. Code Cong. & Admin.News 1976, p. 5909.9

In amending the specified civil rights statutes so as to make attorneys' fees available to prevailing parties in actions brought thereunder, Congress drew heavily on existing attorney fee provisions, particularly those of the 1964 Civil Rights Act. Describing the language of the bill that later became the Act, the House report stated that it "tracks the language of the counsel fee provisions of Titles II and VII of the Civil Rights Act of 1964, and Section 402 of the Voting Rights Act Amendments of 1975 [42 U.S.C. § 1973(e) (Section 402)]." H.R.Rep. No. 94-1558, supra, at 5 (footnotes omitted). The committee reports from both the House and the Senate analyzed the case law that had developed under various statutory attorney fee provisions, but concentrated on that of the Title II and Title VII provision whose language it adopted. H.R.Rep. No. 94-1558, supra, at 6-9; S.Rep. No. 94-1011, supra, at 3-6, U.S.Code Cong. & Admin.News 1976, p. 5908. In that analysis the House report expressly and approvingly cited the decision of the District Court in the instant case. H.R.Rep. No. 94-1558, supra, at 7.10

We acknowledge, of course, that legislative statements subsequent to passage of a given act do not deserve weight equal to that of statements made contemporaneously with passage. Waterman Steamship Corp. v. United States, 381 U.S. 252, 269, 85 S.Ct. 1389, 14 L.Ed.2d 370 (1965); United States v. Price, 361 U.S. 304, 312-313, 80 S.Ct. 326, 4 L.Ed.2d 334 (1960). Still, such statements are entitled to careful consideration "as a secondarily authoritative expression of expert opinion." Bobsee Corp. v. United States, 411 F.2d 231, 237 n.18 (5th Cir. 1969). See also Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 379-381, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1968) (legislation declaring intent of previous statute; citing cases); Sioux Tribe of Indians v. United States, 316 U.S. 317, 329, 62 S.Ct. 1095, 86 L.Ed. 1501 (1942); Director, Office of Wkrs. Comp. Programs v. Boughman, 178 U.S.App.D.C. 132, 138, 545 F.2d 210, 216 (1976); Mount Sinai Hospital of Greater Miami, Inc. v. Weinberger, 517 F.2d 329, 343 (5th Cir. 1975).11

In sum, we are unpersuaded by the history of the pertinent legislation that the District Court's decision was erroneous. Rather, we find in such materials considerable evidence that the District Court's decision correctly implemented both the letter and the central spirit of Title VII.

ROBB, Circuit Judge, concurring:

I concur in the result, that the administrative phases of federal employment discrimination controversies, as distinguished from such cases in the private sector, are proceedings for which attorneys' fees are recoverable by the prevailing party.