No. 98-238
In the Supreme Court of the United States
OCTOBER TERM, 1998
TOGO D. WEST, JR., SECRETARY,
DEPARTMENT OF VETERANS AFFAIRS, PETITIONER
v.
MICHAEL GIBSON
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
REPLY BRIEF FOR THE PETITIONER
SETH P. WAXMAN
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
In the Supreme Court of the United States
OCTOBER TERM, 1998
No. 98-238
TOGO D. WEST, JR., SECRETARY,
DEPARTMENT OF VETERANS AFFAIRS, PETITIONER
v.
MICHAEL GIBSON
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
REPLY BRIEF FOR THE PETITIONER
Petitioner seeks the Court's review to determine whether the Equal Employment
Opportunity Commission (EEOC) has the authority to award compensatory damages
against agencies of the federal government on claims of employment discrimination
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq.
The Seventh Circuit held in this case that the EEOC does not possess such
authority and, consequently, that respondent did not fail to exhaust administrative
remedies, as required by 42 U.S.C. 2000e-16(c), when he did not request
compensatory damages from his employing agency in the first instance or
from the EEOC on his administrative appeal. Respondent does not seriously
dispute that the decision of the Seventh Circuit in this case conflicts
with a recent decision of the Fifth Circuit and with the EEOC's own decisions
concerning the scope of its authority to order compensatory damages. The
conflict has deepened since the petition was filed as a result of a new
decision of the Eleventh Circuit. The frequency with which the issue is
arising in the lower courts underscores the need for its prompt resolution
by this Court.
1. Respondent initially contends (Br. in Opp. 2-3) that this case is an
"inappropriate vehicle" to address the question presented in the
petition, because "the record is unclear" as to whether he made
an adequate request for compensatory damages at the administrative level.
But that issue has been finally resolved against respondent. The Seventh
Circuit recognized that "both parties agree that [respondent] never
asked to be compensated for emotional distress, or humiliation, nor did
he invoke any other term typically associated with a demand for compensatory
damages" at the administrative level. Pet. App. 5a. The court thus
concluded that, although "[i]t would be simpler if we could say that
[respondent] put the EEOC on notice that he was seeking compensatory damages,"
"the record does not support it." Ibid. Respondent did not cross-petition
on the Seventh Circuit's holding that he "fail[ed] to exhaust administrative
remedies with respect to compensatory damages." Ibid. That holding
is now the law of this case.
Respondent also asserts (Br. in Opp. 3) that the Court should not review
this case because "the facts concerning the adequacy of the administrative
remedy are not well developed." But the purely legal question presented
in the petition-whether the EEOC has the statutory authority to award compensatory
damages against federal agencies for violations of Title VII- does not require
any factual development at all. It is analytically distinct from the question
alluded to by respondent concerning the EEOC's standards and procedures
for awarding compensatory damages.1
2. Respondent next contends (Br. in Opp. 3) that the conflict between the
decision below and Fitzgerald v. Secretary, U.S. Department of Veterans
Affairs, 121 F.3d 203 (5th Cir. 1997), is "more apparent than real,"
because the two cases involved different facts2 and because the Seventh
Circuit relied on a rationale that the Fifth Circuit did not address.3 But
those differences do not render the conflict between the legal holdings
of the Fifth Circuit and the Seventh Circuit any less square.
Respondent does not, and cannot, dispute that the Fifth Circuit held in
Fitzgerald that the EEOC possesses the statutory authority to order compensatory
damages awards on Title VII claims against federal agencies, while the Seventh
Circuit held in this case that the EEOC does not possess such authority.
Compare Fitzgerald, 121 F.3d at 207 ("When a federal employee suffers
harm that may be remedied by compensatory damages, it is certainly necessary
and appropriate for the EEOC to grant such relief.") with Pet. App.
13a ("the EEOC may not order the government to pay compensatory damages").
As a consequence, although plaintiffs in the Fifth Circuit cannot seek compensatory
damages in district court on Title VII claims against federal agencies unless
they first sought compensatory damages at the administrative level, plaintiffs
in the Seventh Circuit need not similarly exhaust their administrative remedies.
The conflict between the decisions in this case and Fitzgerald was expressly
noted by the Seventh Circuit. See Pet. App. 13a ("We simply conclude
that Congress has determined it is inappropriate for the EEOC to order the
government to pay compensatory damages * * * . Fitzgerald concludes otherwise.").4
3. The conflict has deepened with the Eleventh Circuit's recent decision
in Crawford v. Babbitt, 148 F.3d 1318, 1324-1326 (1998), which held that
the EEOC lacks the authority to award, or to order a federal agency to award,
compensatory damages for Title VII violations in the federal sector.5 The
Eleventh Circuit adopted reasoning similar to that of the Seventh Circuit
in this case. Both courts held that the federal government had conditioned
its waiver of sovereign immunity for compensatory damages under Title VII
on the availability of a jury trial for the federal agency defendant as
well as for the plaintiff. 148 F.3d at 1324; Pet. App. 11a-13a. Both courts
therefore concluded that there was no waiver of sovereign immunity for compensatory
damages in the administrative process, 148 F.3d at 1324-1325 (citing Seventh
Circuit's decision in this case), so that a plaintiff is "not required
to raise compensatory damages as part of her duty to exhaust administrative
remedies," id. at 1326. And both courts acknowledged that the Fifth
Circuit had reached a different result in Fitzgerald. Id. at 1325; Pet.
App. 13a.6
The Eleventh Circuit's decision in Crawford provides further indication
that the issue presented in the petition is an important and recurring one.
The conflicting positions of the Seventh and Eleventh Circuits, on the one
hand, and the Fifth Circuit and the EEOC itself, on the other, have created
considerable confusion with respect to where claims for compensatory damages
under Title VII against agencies of the federal government are to be raised
and adjudicated.7 Respondent has offered no persuasive reason why that confusion
should not be resolved in this case.
* * * * *
For the foregoing reasons and those stated in the petition, the petition
for a writ of certiorari should be granted.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
DECEMBER 1998
1 Respondent erroneously suggests (Br. in Opp. 1) that the government "apparently
conced[ed]" in the district court that compensatory damages are not
available at the administrative level. The EEOC's authority to award compensatory
damages was one of many issues raised by respondent in his response to the
government's motion to dismiss or for summary judgment. The government's
reply brief, although not specifically addressing that issue (or certain
other issues), argued that "[n]othing in [respondent's] response justifies
his failure to properly exhaust his administrative remedies concerning these
new claims," such as his claim for compensatory damages. Gov't Second
Reply Mem. 1; see id. at 4 (describing respondent's new claims as including
his claim for compensatory damages). No concession can properly be inferred
in such circumstances. And respondent acknowledges (Br. in Opp. 1) that
the government specifically argued in the court of appeals that compensatory
damages are available at the administrative level. See Pet. App. 10a (court
of appeals observes that the question of the EEOC's authority to award compensatory
damages was fully briefed in this case).
2 In this case, respondent asserted a claim at the administrative level
for sex discrimination, seeking a promotion and backpay. His employing agency
rejected his claim on the merits, but the EEOC reversed on administrative
appeal, concluding that he was a victim of discrimination and ordering a
promotion and backpay. In Fitzgerald, after the federal employee asserted
a claim for race discrimination, his employing agency made him a certified
offer of "full relief," pursuant to 29 C.F.R. 1614.107(h), 1614.501.
After the employee rejected the offer, the employing agency dismissed his
claim, as required by 29 C.F.R. 1614.107(h), and the EEOC affirmed. Neither
respondent nor the plaintiff in Fitzgerald asserted a claim for compensatory
damages at the administrative level. But both sought compensatory damages
in their complaints in federal district court. The legal question whether
they were required to present their compensatory damages claims at the administrative
level is the same in both cases. It is unaffected by whether the administrative
proceedings were resolved on the merits, as in this case, or were dismissed
based on rejection of an offer of "full relief," as in Fitzgerald.
3 See Pet. 17-18 n.11 (discussing why the Fifth Circuit may not have addressed
42 U.S.C. 1981a(c)(1), the jury trial provision that the Seventh Circuit
considered controlling).
4 See also Beretta U.S.A. Corp. v. Santos, 712 A.2d 69, 82 n.7 (Md. Ct.
Spec. App. 1998) (noting that it is "unclear whether compensatory damages
can be awarded by the Equal Opportunity Employment Commission under Title
VII at the administrative level") (citing this case and Fitzgerald).
5 The plaintiff in Crawford had asserted a sexual harassment claim before
her employing agency and indicated that she was seeking, inter alia, compensatory
damages for the resulting physical and emotional problems. The employing
agency concluded that the plaintiff had been a victim of sexual harassment.
However, apparently because the plaintiff had offered no evidence to support
her claim for compensatory damages, the agency did not award them. 148 F.3d
at 1320. The plaintiff elected to file suit immediately rather than to pursue
an administrative appeal to the EEOC. The district court dismissed her claim
for compensatory damages on the ground that she had not adequately raised
such a claim at the administrative level. Id. at 1323.
6 The government's petition for rehearing with suggestion of rehearing en
banc in Crawford was denied on November 20, 1998.
7 As noted in the petition, the EEOC has frequently ordered compensatory
damages awards against federal agencies under Title VII where (unlike in
this case and Fitzgerald) claimants sought such damages at the administrative
level and where (unlike in Crawford) they offered evidence to substantiate
such damages. See Pet. 13 (citing Turner v. Babbitt, No. 1956390, 1998 WL
223578, at *5-6 (EEOC Apr. 27, 1998), which, in turn, cites several such
cases); see also, e.g., Robison-Matheson v. Apfel, No. 1961574, 1998 WL
776927, at *3-4 (EEOC Oct. 23, 1998) (citing cases); Mares v. Peters, No.
1962897, 1998 WL 745683, at *6-7 (EEOC Oct. 20, 1998) (citing cases). We
are not aware that any statistics have been compiled on the precise number
of such cases. But respondent offers no basis for his assertion (Br. in
Opp. 9) that "[t]he federal district courts will not be inundated with
federal EEO claims" if the EEOC cannot award compensatory damages against
federal agencies and thereby resolve Title VII claims fully at the administrative
level.