Porter v. Winter, No. 07-17120 (9th Cir. May 5, 2010)

By Paul Mollica

Setting up a circuit conflict ripe for review, the Ninth Circuit holds that federal employees can bring a stand-alone claim for Title VII attorneys’ fees in federal district court for work performed at the administrative level.

Porter v. Winter, No. 07-17120 (9th Cir. May 5, 2010):  Federal employees with Title VII claims must exhaust administrative remedies within their home agencies and the EEOC, under section 717(b) (42 U.S.C. § 2000e-16) before filing a civil action in federal district court.  Employees can obtain substantial relief this way, as in the present case, where a former employee prevailed before the EEOC on a retaliation claim. But dissatisfied with the attorney’s fee award, the former employee filed a civil action in U.S. District Court for fees alone. The district court dismissed on the ground that it lacked subject-matter jurisdiction over such a claim.

The Ninth Circuit reverses, holding that “under New York Gaslight Club, Inc. v. Carey, 447 U.S. 54 (1980), federal courts have subject matter jurisdiction over claims brought solely to recover attorney’s fees incurred in Title VII administrative proceedings.” Carey expressly stated that under Title VII § 706(k) (42 U.S.C. § 2000e-5(k)) that Title VII authorizes “a civil suit in federal court . . . solely to obtain an award of attorney’s fees for legal work done in state and local proceedings.” Carey, 447 U.S. at 66 (emphasis added by court).

Previously, the Fourth Circuit had held in Chris v. Tenet, 221 F.3d 648, 654 (4th Cir. 2000), that the Carey precedent only allowed a claim for fees combined with substantive Title VII claims. Citing an earlier case from the Eighth Circuit, Jones v. American State Bank, 857 F.2d 494, 497 (8th Cir. 1988), the panel here holds — contrary to the Fourth Circuit — that Carey opinion applies equally to fees incurred in federal administrative hearings. The panel also holds that the plain language of section 706(k) allows a court to award fees “[i]n any action or proceeding under this subchapter,” which by its terms is not limited to proceedings where “claimants  . . .are compelled to seek other forms of relief as well in the federal courts.”

The panel also rejects an argument that Carey was effectively superseded by North Carolina Department of Transportation v. Crest Street Community Council, Inc., 479 U.S. 6 (1986), which construed a different fee-shifting statute, section 1988: “Crest Street did not modify or overrule Carey, and although both cases construed fee shifting provisions, the two provisions utilize different statutory language and appear within different statutory schemes. Crest Street based its interpretation of Section 1988 on the meaning of the phrase “to enforce,” which is absent from Title VII’s fee shifting provision, and the legislative history of Section 1988, which is specific to that statute. We are thus bound to follow Carey‘s interpretation of Title VII, notwithstanding Crest Street‘s criticism of its reasoning.”

The panel thus sets up a split almost certain to generate at least a cert petition by the U.S., if not a writ of certiorari.