GRANT ANTHONY, PETITIONER V. OTIS R. BOWEN, SECRETARY, UNITED
STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES

   No. 88-803

   In the Supreme Court of the United States

   October Term, 1988

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The District Of Columbia Circuit

   Memorandum For The Respondent In Opposition

   Petitioner contends that the court of appeals erred in holding that
he is not a "prevailing party" entitled to an attorney's fee award
under the fee-shifting provisions of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. 2000e-5(k), 2000e-16(d).

   1. This is an attorney's fee case arising out of claims that the
Department of Health and Human Services violated provisions of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq.  On May
10, 1979, petitioner filed a formal administrative complaint with the
Equal Employment Opportunity Commission (EEOC) alleging that his
employer, the Department of Health and Human Services (HHS), had
discriminated against him on the basis of race and sex in the
application of its procedures for special leave and in the denial of
his requests for promotion (Pet. App. 7a).  In its recommended
disposition of these allegations, the EEOC concluded that there was
reasonable cause to believe that the agency's application of its
special leave policy to petitioner was racially motivated but found no
probable cause to believe that the promotion decisions challenged in
the complaint resulted from discrimination (id. at 8a).

   On April 5, 1982, eight months after issuance of the EEOC report,
HHS formally adopted the EEOC's findings and recommendations as its
own (Pet. App. 9a).  Petitioner then requested a hearing before an
EEOC examiner on the promotion issue (ibid.).  The hearing examiner
subsequently remanded the complaint to HHS because it had failed to
provide petitioner with a letter stipulating the issues accepted for
investigation and because the examiner deemed HHS's preliminary
investigation inadequate (ibid.).  On remand, HHS indicated that it
would (1) investigate the promotion decisions challenged in
petitioner's formal complaint, (2) refuse to investigate other
promotion decisions not explicitly challenged in petitioner's
complaint, and (3) reopen for further investigation the issue of
whether it had discriminated against petitioner in placing special
restrictions on his use of leave (id. at 9a-10a).

   On February 6, 1984, petitioner filed suit in district court to
compel the agency to investigate additional promotion decisions beyond
those expressly identified in the administrative complaint and to bar
the agency from reopening the leave issue (Pet. App. 10a).  He
asserted jurisdiction under Title VII of the Civil Rights Act and
sought relief under the Mandamus Act, 28 U.S.C. 1361, and the
Declaratory Judgment Act, 28 U.S.C. 2201, 2202 (Pet. App. 11a-12a).
He did not, however, seek to litigate the merits of the underlying
Title VII complaint, which was still pending before HHS at the time
the district court rendered its decision (id. at 12a).

   Without addressing the basis for its jurisdiction, the district
court held that HHS could properly limit its investigation to those
promotion decisions identified in the administrative complaint and the
EEOC's recommended disposition.  See Anthony v. Bowen, 674 F. Supp.
876, 878-880 (D.D.C. 1986).  With respect to the leave issue, however,
the court ruled for petitioner, holding that HHS could not conduct
further administrative investigation on this matter because it had
finally decided the question by adopting the EEOC's recommended
disposition and had "issued as its own (the EEOC's) remedial order"
(id. at 880).  /1/

   Petitioner appealed from the district court's determination that
HHS need not expand its promotion investigation.  In an unpublished
memorandum opinion (App., infra, 1a-4a), the court of appeals reversed
and remanded.  The court maintained that employment discrimination
complaints were to be broadly construed and that post-complaint
evidence adequately apprised the agency of petitioner's intention to
place in issue additional promotion decisions (id. at 3a).  The court
further noted that petitioner was not seeking adjudication of the
merits of his underlying discrimination claim, and that his action did
not arise under Title VII of the Civil Rights Act (App., infra, 4a).
The court added that "(a)lthough the government has not raised the
point by cross appeal, we have grave doubts whether the mandamus
statute, 28 U.S.C. 1361, is properly deployed" for monitoring the
agency's handling of the Title VII administrative complaint (ibid.).
Thereafter, the government petitioned for rehearing on the ground that
the district court lacked jurisdiction.  That petition was denied
(Gov't C.A. Br. 3 n.2).

   2. Petitioner then moved in the district court for an award of
attorney's fees under Title VII, or, alternatively, under the Equal
Access to Justice Act (EAJA), 28 U.S.C. 2412.  On consideration of the
request, the district court observed that petitioner had "prevailed on
the merits of his claims that defendant could not reopen the leave
issue previously decided in his favor, and that defendant was required
to investigate the additional charges he wished to prosecute
administratively" (Pet. App. 27a).  Without citing the statutory basis
for the award, the court concluded that petitioner had obtained "the
full relief he sought in these judicial proceedings" (id. at 26a), and
awarded him $40,645.75 in fees (id. at 29a-31a).

   The court of appeals vacated the judgment and remanded for further
proceedings (Pet. App. 5a-23a).  As an initial matter, the court of
appeals determined that the district court had implicitly awarded
attorney's fees under the fee-shifting provisions of Title VII and not
under EAJA (Pet. App. 18a).  /2/ The court then asserted that although
the petitioner had achieved the object of his litigation -- an order
controlling the scope of the administrative investigation -- he had
not obtained a judicial decree concerning the underlying merits of his
civil rights claims (id. at 18a-22a).  /3/ The court also reasoned
that the petitioner could not claim to have "prevailed" on the merits
of a claim arising under Title VII in an action maintained under the
Mandamus Act (Pet. App. 18a-19a).  Relying on this Court's opinion in
Hanrahan v. Hampton, 446 U.S. 754 (1980), the court concluded that the
petitioner failed to satisfy Title VII's "prevailing party"
requirement for the award of attorney's fees, 42 U.S.C. 2000e-5(k).
/4/

   The court further ruled that petitioner had succeeded on a
significant issue in the litigation and had therefore prevailed for
purposes of the fee-shifting provisions of EAJA (Pet. App. 16a, 22a).
It therefore remanded the case for a determination of whether the
government's position was "substantially justified" within the meaning
of that statute (id. at 22a-23a).  Petitioner now challenges the court
of appeals' determination that he is not eligible for a fee award
under Title VII.

   3. The holding below is limited to the highly unusual facts and
procedural posture of this case and arises out of the erroneous
assumption of mandamus jurisdiction by the district court.  For this
reason, the case has little if any prospective significance and does
not warrant further review.

   Petitioner asserts (Pet. 15) that success on the merits of his
mandamus action entailed success on the merits of a Title VII claim.
He maintains that the district court's order forbidding the reopening
of HHS's investigation of the leave issue rendered final and
conclusive HHS's adoption of the EEOC's finding of discrimination, and
thus established his entitlement to relief under Title VII.  The court
of appeals disagreed with petitioner that the result of the district
court action could be characterized as a final determination of his
Title VII claim of discrimination in the granting of special leave.
It also denied that petitioner could "prevail" in a discrimination
claim within the meaning of the Title VII fee-shifting provision on
the basis of success in an action brought under another statute.

   The question whether petitioner could be considered to have
"()established (a) violation of Title VII * * * (and) his entitlement
to the relief stated in the agency decision" (Pet. 15) through success
in an action brought under the Mandamus Act does not warrant this
Court's consideration.  The issue pressed by petitioner is unlikely to
recur with any frequency because it arises out of the district court's
inappropriate assumption of mandamus jurisdiction over Title VII
claims that were still pending before the administrative agency.

   Although the court of appeals declined to reach the question of the
district court's subject matter jurisdiction in the absence of a cross
appeal by the government, it nonetheless expressed "grave doubts" as
to whether the mandamus statute was a proper basis for district court
jurisdiction in this case.  /5/ We submit that the court's doubts were
justified.  Under well-established doctrine, mandamus jurisdiction is
properly invoked only when no other adequate remedy is available and
the petitioner would otherwise be prejudiced in a way not correctable
on appeal.  See, e.g., City of Highland Park v. Train, 519 F.2d 681,
691 (7th Cir. 1975), cert. denied, 424 U.S. 927 (1976);  Council of
and for the Blind v. Regan, 709 F.2d 1521, 1533 (D.C. Cir. 1983) (en
banc);  Levine v. U.S. District Court for the Central District of
California, 764 F.2d 590, 593 (9th Cir. 1985), cert. denied, 476 U.S.
1158 (1986);  see also Ex parte Peru, 318 U.S. 578, 584 (1943).
Petitioner's case did not satisfy these conditions, as Title VII
provided an adequate alternative remedy for any error committed by the
agency in its consideration of petitioner's discrimination charge.
Had HHS's investigation concerning special leave been reopened and the
underlying matter resolved against petitioner, he could have asserted
the illegality of the agency's decision to reopen in a Title VII
lawsuit to review de novo the agency's final determination.  See 42
U.S.C. 2000e-5(f)(1).  Thus, an adequate statutory remedy to protect
petitioner's rights was available under "the very statute that
create(d) the rights." City of Highland Park v. Train, 519 F.2d at
692.  Moreover, if petitioner had prevailed in his Title VII lawsuit,
he would have obtained the same relief he obtained through success in
his mandamus action.  Accordingly, petitioner would have suffered no
prejudice if the district court had refused to issue the writ.

   Additionally, the use of this extraordinary writ to interfere with
ongoing administrative proceedings, as occurred in this case,
engenders unnecessary litigation and disrupts the administrative
process.  Interim actions that are not immediately reviewable on
interlocutory appeal should not be reviewed by means of the
alternative device of mandamus.  See In re Special March 1974 Grand
Jury, 541 F.2d 166, 172 (7th Cir. 1976), cert. denied, 430 U.S. 929
(1977) (mandamus relief denied where the plaintiff merely contested
the procedural aspects of the ongoing grand jury investigation rather
than the merits of his defense).

   In light of the erroneous use of mandamus in this case, it is
unlikely that a significant number of other cases will raise the
question of whether a party who prevails in a mandamus action brought
to enforce Title VII can be a prevailing party within the meaning of
the statute's fee-shifting provisions.  This case therefore does not
present an issue of recurring, prospective significance that warrants
further review.  Moreover, petitioner may yet receive some
reimbursement under EAJA for expenses incurred in the mandamus action.
 The fact that EAJA provides an alternative source of attorney's fees
for the rare plaintiff who prevails in a mandamus action during the
course of Title VII administrative proceedings further diminishes the
importance of the question whether fees are available under Title VII
in these circumstances.

   It is therefore respectfully submitted that the petition for a writ
of certiorari should be denied.

   CHARLES FRIED

      Solicitor General

   JANUARY 1989

   /1/ According to the district court, the agency agreed to
"terminat(e petitioner's) leave status" and "require() that (special
leave) procedures be applied in a nondiscriminatory manner in the
future" (674 F. Supp. at 880).

   /2/ As noted above, the district court did not specify the
statutory basis of its award.  The court of appeals reasoned, however,
that (1) the district court had based the award on a fee rate of $150
per hour -- in excess of EAJA's $75 per hour presumptive fee cap, (2)
the district court, in determining fee entitlement, had discussed this
Court's decision in Hanrahan v. Hampton, 446 U.S. 754 (1980) -- a
Title VII case, and (3) the district court failed to determine whether
the government's conduct was "substantially justified" -- a
prerequisite to awarding fees under EAJA.  See Pet. App. at 17a-18a,
22a-23a.

   /3/ The court rejected the contention that the mandamus order had
conclusively disposed of any Title VII claims, explaining that "(t)he
record contains no mention of the final disposition of Anthony's
actual Title VII claims.  We can only assume that investigation and
resolution of those claims are not yet final" (Pet. App. 18a).  See
also id. at 21a-22a.

   /4/ This provision states that, "In any action or proceeding under
this subchapter the court, in its discretion, may allow the prevailing
party, other than the Commission or the United States, a reasonable
attorney's fee as part of the costs, and the Commission and the United
States shall be liable for costs the same as a private person." Under
42 U.S.C. 2000e-16(d), this provision is made applicable to civil
actions alleging discrimination in employment by the Federal
Government.

   /5/ The court of appeals plainly could have addressed the issue of
subject matter jurisdiction sua sponte -- a fact that further
emphasizes the peculiar posture of this case and the limited
prospective significance of the court's holding on petitioner's
attorney's fee application.

   APPENDIX