                         Authority of USDA to Award Monetary Relief
                                       for Discrimination


T h e D e p a rtm e n t o f A g ric u ltu re h a s authority to a w a rd m o n e ta ry re lie f, a tto rn e y s ’ fees, and c o sts to a
     p e rs o n w h o h as b e e n d is c rim in a te d a g a in s t in a p ro g ra m c o n d u c te d by U S D A if a c o u rt c o u ld
     a w a rd s u c h re lie f in an a c tio n b y the a g g rie v e d p e rso n          T h a t q u e stio n is c o n tro lle d b y w h e th e r the
     a n ti-d is c n m in a tio n p ro v is io n s o f the a p p lic a b le c iv il rig h ts statu te a p p ly to fe d e ra l a g e n c ie s, a n d if
     so , w h e th e r th e s ta tu te w a iv e s th e so v e re ig n im m u n ity o f the U n ite d S tates a g a in st im p o sitio n o f
     s u c h re lie f.


T h e a n ti-d is c rim in a tio n p ro v is io n s o f Title V I o f th e C iv il R ig h ts A ct o f 1964 do n o t a p p ly to fe d e ra l
     a g e n c ie s . S o m e a n ti-d is c rim in a tio n p ro v is io n s in e a c h o f th e o th e r c iv il rig h ts s ta tu te s a d d re ss e d in
     th e o p in io n d o a p p ly to fe d e ra l agencies, b u t o n ly o n e o f th e statu tes, the E qual C re d it O p p o rtu n ity
     A c t, w a iv e s s o v e re ig n im m u n ity w ith re s p e c t to m o n e ta ry relief, a u th o riz in g im p o sitio n o f c o m p e n ­
     s a to ry d a m a g e s . T h e F a ir H o u sin g A ct a n d th e R e h a b ilita tio n A c t d o n o t w a iv e im m u n ity a g a in st
     m o n e ta ry r e lie f    A tto rn e y s ’ fees and c o s ts m a y b e a w a rd e d p u rsu a n t to the w a iv e r o f im m u n ity
     c o n ta in e d in th e E q u a l A c c e s s to Justice A c t


                                                                                                                                 A p ril 18, 1 9 9 4



                                 M e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l
                                                   D e p a r t m e n t o f A g r ic u l t u r e


    T his m em orandum responds to your request for our opinion concerning the
authority o f the Secretary of Agriculture to award damages and other forms of
monetary relief, attorneys’ fees, and costs to individuals who the Department of
Agriculture (“U SD A ”) has determined have been discriminated against as appli­
cants for, or participants in, USDA conducted program s.1 You have informed us
that the statutes authorizing these program s do not authorize such relief and have
asked our opinion whether various civil rights statutes authorize the Secretary to
afford such relief.
    The Secretary has authority to aw ard monetary relief, attorneys’ fees, and costs
if a court could award such relief in an action by the aggrieved person. A ccord­
ingly, the dispositive questions regarding your inquiry are whether the anti-
discrim ination provisions of the individual civil rights statutes apply to federal
agencies, and if so, whether the statutes w aive the sovereign immunity of the
United States against imposition o f such relief. In considering your request, we
have review ed Title VI o f the Civil Rights A ct o f 1964, the Fair Housing Act, the
Rehabilitation Act, and the Equal C redit Opportunity Act. With respect to attor­
neys’ fees and costs, we have also review ed the Equal Access to Justice Act.

   1 See Letter for W alter Dellinger, Acting Assistant Attorney General, Office of Legal Counsel, from James
S. G illilan d , General Counsel, Department of Agriculture (Oct 8, 1993).

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                     A u thority o f USDA to A w ard M onetary R e lie f f o r D iscrim ination


   We conclude that the anti-discrimination provisions of Title VI do not apply to
federal agencies. Some anti-discrimination provisions in each o f the other statutes
that we reviewed do apply to federal agencies, but only one of the statutes, the
Equal Credit Opportunity Act, waives sovereign immunity with respect to m one­
tary relief, authorizing imposition of compensatory damages. The Fair Housing
Act and the Rehabilitation Act do not waive immunity against monetary relief.
Attorneys’ fees and costs may be awarded pursuant to the waiver o f immunity
contained in the Equal Access to Justice Act.

                                             I. B A C K G R O U N D

   A federal agency must spend its funds only on the objects for which they were
appropriated. 31 U.S.C. § 1301(a). Consistent with this requirement,2 appropria­
tions law provides that agencies have authority to provide for monetary relief in a
voluntary settlement of a discrimination claim only if the agency would be subject
to such relief in a court action regarding such discrimination brought by the ag­
grieved person.
   This principle has been applied in a number of Comptroller General opinions.
For example, the Comptroller General has concluded that agencies have the
authority to settle administrative complaints of employment discrimination by
awarding back pay because such monetary relief is available in a court proceeding
under Title VII of the Civil Rights Act of 1964 (“Title VII”); however, “ [t]he
award may not provide for compensatory or punitive damages as they are not per­
mitted under Title VII.” Equal Em ploym ent O pportunity Com m ission, 62 Comp.
Gen. 239, 244-45 (1983).3 The Comptroller General has come to the same conclu­
sion with respect to the Age Discrimination in Employment Act o f 1967
(“ADEA”). A lbert D. Parker, 64 Comp. Gen. 349, 352 (1985). The Com ptroller
General has applied this appropriations law limitation directly to USDA. See Nina
R. M athews, B-237615, 1990 W L 278216, at 1 (C.G. June 4, 1990) (“Employee
may not be reimbursed for economic losses pursuant to a resolution agreement
made under [ADEA or Title VII] since there is no authority for reimbursement of
compensatory damages under either statutory authority.”).4

   2 S e e a h o 31 U S C. § 1341(a)(1) (A nti-D eficiency Act)
   1      W aiving sovereign im m unity, T itle VII expressly authorizes aw ards o f back pay against federal ag en ­
cies A provision in T itle VII entitled “ Em ploym ent by Federal G overnm ent,'’ 42 U S C           2 0 0 0 e -l6 , p ro ­
hibits discrim ination by federal agencies (subsec (a)); authorizes a civil action in w hich ‘‘the head o f the
departm ent, agency, o r unit . . shall be the d efen d an t" (subsec (c)), and incorporates the rem edies p ro v i­
sions o f 42 U .S.C § 2000e-5 for such civil actions (subsec (d)) A w ards o f back pay are expressly au th o r­
ized by 42 U .S.C § 2000e-5(g) Subsequent to issuance o f the C om ptroller G eneral opinions cite d in the
text, T itle VII was am ended to provide for com pensator)’ dam age aw ards against all parties, including federal
agencies, and punitive dam age aw ards against all non-governm ent parties. 42 U.S C § 19 8 1a(b)
   4      T he sam e appropriations lim itation exists for settlem ents o f litigation by the D epartm ent o f Justice as
exists for settlem ents o f adm inistrative proceedings by agencies. This O ffice has previously o p in e d that the
perm anent appropriation established pursuant to 3 1 U .S.C. & 1304 (“the judgm ent fund”) is available ‘‘for the
paym ent o f non-tort settlem ents authorized by the A ttorney G eneral or his designee, w hose paym ent is ‘not

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                                         Opinions o f th e Office o f L egal C ounsel


   Therefore, the question you have raised regarding the Secretary’s authority to
award m onetary relief in administrative proceedings turns on whether the various
civil rights statutes authorize the aw ard of such relief against federal agencies in a
court proceeding. That question requires a two-step analysis: whether federal
agencies are subject to the discrimination prohibitions of the statute; and, if so,
whether the statute waives the sovereign immunity of the United States against
monetary relief. See U nited States D e p ’t o f E nergy v. O hio , 503 U.S. 607, 613-14
(1992) (Energy D epartm ent conceded it was subject to procedural requirements of
Clean W ater Act and Resource Conservation and Recovery Act and liable for co­
ercive fines under those statutes; therefore, only question presented was whether
the statutes waived sovereign immunity from liability for punitive fines).5
   The first step o f the analysis requires application of conventional standards of
statutory interpretation. The second step, however, requires application of a spe­
cial, “unequivocal expression” interpretive standard that the Supreme Court has
established to govern determinations as to whether a statute waives sovereign im­
munity — either the inherent constitutional immunity of the federal government or
the Eleventh Amendm ent immunity o f the States:

            W aivers of the Government’s sovereign immunity, to be effective,
            m ust be unequivocally expressed. . . . [T]he Governm ent’s consent
            to be sued m ust be construed strictly in favor of the sovereign, and
            not enlarge[d] beyond what the language requires . . . . As in the
            Eleventh Amendm ent context, the unequivocal expression of elim i­
            nation of sovereign immunity that we insist upon is an expression in
            statutory text. If clarity does not exist there, it cannot be supplied
            by a com m ittee report.

U nited S tates v. N ord ic Village, Inc., 503 U.S. 30, 33-37 (1992) (internal quotation
marks and citations omitted). Thus, “[t]here is no doubt that waivers of federal
sovereign imm unity must be ‘unequivocally expressed’ in the statutory text.”
U nited S tates v. Idaho, ex rel. D ir., D e p ’t. o f W ater Resources, 508 U.S. 1, 6
(1993).
    The m ethodology required by this “unequivocal expression” standard may be
illustrated by the decision in N ordic Village. Seven Justices joined in an opinion
for the Court that found that although a provision o f the Bankruptcy Code could be

 o therw ise pro v id ed fo r,’ i f a n d o n lv i f the cause o f action th a t g a ve rise to the settlem ent co u ld h ave resulted
 in a fin a l m o n e v ju d g m e n t.” A vailability o f Ju d g m en t F u n d in C ases N ot Involving a M onev J u dgm ent
 C laim , 13 O p O .L C. 98, 104 (1 9 8 9 ) (em phasis added) (quoting 31 U S.C. § 1304).
     5       T h e C o u rt in D ep a rtm en t o f Energy ex p ressly identified the fundam ental difference betw een the su b ­
 stantive c o v erag e o f a statute and liability for v io latio n s o f the statute, stating that the C lean W ater A ct co n ­
 tains "sep arate statutory reco g n itio n o f three m an ifestatio n s o f governm ental pow er to w hich the U nited
 Stales is su b jected : su b stan tiv e and procedural requirem ents, adm inistrative authority; and ‘process and
sanctions, w h e th er ‘e n fo rc e d ’ in courts or o th erw ise. Su b stan tiv e requirem ents are thus distinguished from
ju d ic ia l p ro c e ss." 503 U .S. at 623.

                                                               54
                    A uthority o f USDA to A w a rd M onetary R e lie f f o r D iscrim ination


read to effect a waiver of sovereign immunity for monetary claims against the
United States by a bankruptcy trustee, the provision was “susceptible of at least
two interpretations that do not authorize monetary relief.” 503 U.S. at 34. The
Court made no effort to apply traditional rules of statutory construction to deter­
mine which was the better reading o f the provision and simply concluded:

          The foregoing [two alternative interpretations] are assuredly not the
          only readings of [the provision], but they are plausible ones —
          which is enough to establish that a reading imposing monetary li­
          ability on the Government is not “unambiguous” and therefore
          should not be adopted.

Id. at 37.6 The Court held that sovereign immunity against imposition of monetary
relief had not been waived.
   In consultation with the Civil and Civil Rights Divisions of the Department of
Justice, and having received and considered submissions from various interested
governmental and nongovernmental parties,7 we have identified four civil rights
statutes that may apply to USDA programs: Title VI o f the Civil Rights Act of
1964, the Fair Housing Act, the Rehabilitation Act, and the Equal Credit O pportu­
nity Act. W e will discuss Title VI first. That analysis presents the least difficulty,
because it is well established that the anti-discrimination provisions of Title VI do
not apply to federal agencies and thus there is no need to discuss whether sovereign
immunity has been waived. The remaining three statutes require more discussion.
The first step of the analysis is satisfied in each case because federal agencies are
covered by the anti-discrimination provisions of each statute, at least to some ex­
tent. Applying the “unequivocal expression” standard required under the second
step, however, we have concluded that sovereign immunity has been waived with
respect to monetary relief by only one of the statutes: the Equal Credit Opportu­
nity Act. The final section o f the memorandum discusses attorneys’ fees and costs.

                                               II. T IT L E VI

   Title VI of the Civil Rights Act of 1964 (“Title VI”), 42 U.S.C. § 2000d, pro­
vides that “[n]o person in the United States shall, on the ground of race, color, or
national origin, be excluded from participation in, be denied the benefits of, or be


   6 A pplying us rule that w aivers o f sovereign im m unity m ust be unequivocally expressed in the statutory
text, the C ourt declined to consider the legislative history in an attem pt to resolve the am biguity. Id.
   7 See Letters from Roberta A chtenberg, A ssistant Secretary fo r Fair H ousing and Equal O pportunity, and
N elson Diaz, G eneral C ounsel, U S D epartm ent o f H ousing A nd U rban D evelopm ent (N ov 15, 1993),
Elaine R. Jones, D irector-C ounsel, N A A C P Legal D efense and E ducational Fund, Inc. (O ct 28, 1993); Bill
Lann Lee, W estern Regional C ounsel, N A A CP Legal D efense and Educational Fund, Inc. (N ov 12, 1993,
N ov 24, 1993); Les M endelsohn, Esq , Speiser, Krause, M adole & M endelsohn (Nov 4, 1993), D avid H
H am s, J r , Executive D irector, Land Loss P revention Project (N ov. 5, 1993, N ov 8, 1993).

                                                       55
                                     O pinions o f the O ffice o f L egal Counsel


subjected to discrim ination under any program or activity receiving Federal finan­
cial assistance.” By its terms, this anti-discrim ination provision does not apply to
program s conducted directly by a federal agency, but rather applies only to “any
program or activity receiving federal financial assistance.” The conclusion that
this provision does not include federal agencies is reinforced by the definitions of
“program or activity” and “program” contained in 42 U.S.C. § 2000d-4a. That
provision specifically identifies the kinds of entities that are covered, including
State and local governm ents, but contains no reference to the federal government.
The courts have held that Title VI “w as meant to cover only those situations where
federal funding is given to a non-federal entity which, in turn, provides financial
assistance to the ultimate beneficiary'.” S oberal-P erez v. H eckler , 717 F.2d 36, 38
(2d Cir. 1983), cert, d en ie d , 466 U.S. 929 (1984); Fagan v. U nited States Sm all
B usiness A dm in . , 783 F. Supp. 1455, 1465 n.10 (Title VI inapplicable to SBA di­
rect loan program ), a jf ’d, 19 F.3d 684 (D.C. Cir. 1992).
    In light o f our conclusion that the discrimination prohibition o f Title VI does
not apply to federal agencies, there is no need to consider whether Title VI waives
sovereign immunity.

                                    III. THE F A IR HOUSING A C T

                                                            A.

   T he Fair Housing Act, 42 U.S.C. §§ 3601-3619,8 prohibits covered persons and
entities from engaging in any “discriminatory housing practice,” which is defined
as “an act that is unlawful under section 3604, 3605, 3606, or 3617 of this title.”
42 U.S.C. § 3602(f). Section 3604 prohibits discrimination in the sale or rental of
housing. Section 3603(a)(1)(A) of the Act provides that “the prohibitions against
discrim ination in the sale or rental o f housing set forth in section 3604 . . . shall
apply” to “dw ellings owned or operated by the Federal G overnm ent.” Thus, a fed­
eral agency is subject to the discrimination prohibitions of § 3604 whenever the
agency itself is engaged in selling or renting real estate.
   In contrast to the language explicitly subjecting federal agencies to the discrimi­
nation prohibitions of § 3604, it is unclear whether federal agencies are subject to
§ 3605(a), which prohibits “any person or other entity whose business includes
engaging in residential real estate-related transactions to discriminate against any
person in making available such a transaction, or in the terms or conditions of such
a transaction.” The definition section of the Act does not include governments or
governm ent agencies in the definition of “person,” see § 3602(d), and unless oth­
erwise specified, the term “person” in a statute does not include the federal gov­
ernm ent or a federal agency. U nited States v. U nited M ine W orkers, 330 U.S. 258,

   8    T h e F a ir H ousing A ct was originally e n a c te d as T itle V III o f the C ivil R ights A ct o f 1968, Pub L. No.
90-284 , 82 Stat. 73 (1968).

                                                            56
                     A u thority o f USDA to A w a rd M onetary R e lie f f o r D iscrim ination


275 (1947) (“In common usage,” the term person “does not include the sovereign,
and statutes employing it will ordinarily not be construed to do so.”). The term
“entity” is not defined at all in the Act. It is not necessary to resolve this question
for purposes of this opinion, however, because we conclude in the next section that
the Act does not waive the sovereign immunity of the United States against m one­
tary liability.9

                                                          B.

    W hether federal agencies are subject to monetary liability for violations of
§ 3604 o f the Fair Housing Act turns on application of the “unequivocal expres­
sion” standard for waivers of sovereign immunity discussed in section I of this
memorandum. W e conclude that the Act does not waive sovereign immunity be­
cause its text falls well short of satisfying the “unequivocal expression” standard.
    Section 3613 authorizes aggrieved persons to enforce the Fair Housing A ct’s
anti-discrimination prohibitions in court. Although § 3613 is silent as to whom this
action may be brought against, it does specify what relief may be awarded. Sub­
section (c)(1) authorizes a court to award an aggrieved person “actual and punitive
damages,” as well as injunctive relief. In addition, under subsection (c)(2), the
court “may allow the prevailing party, other than the United States, a reasonable
attorney’s fee and costs. The United States shall be liable for such fees and costs
to the sam e extent as a private person.”
    W e do not believe that § 3613 waives sovereign immunity, except with respect
to attorneys’ fees and costs. Although the Fair Housing Act expressly establishes a
general cause of action for redress of discriminatory practices, it is silent as to the
parties against whom such a cause of action may be brought and it does not contain
language expressly subjecting the United States to such a suit.
    It is possible to infer from the fact that § 3603 expressly subjects the United
States to the discrimination provisions of § 3604 that Congress intended that the
cause of action established by § 3613 would also apply to the United States. How­
ever, § 3613 does not say so and the Supreme Court has held that subjecting a gov­
ernmental entity to the substantive or procedural requirements of a statute does not
necessarily mean that sovereign immunity has been waived or abrogated with re­
spect to claim s for damages. See, e.g., U nited States D e p ’t o f Energy v. Ohio, 503
U.S. 607 (1992) (federal agencies subject to procedural requirements o f Clean
W ater Act and Resource Conservation and Recovery Act but immune from actions


    9    For the sam e reason it is also unnecessary to resolve w hether the discrim ination prohibitions in §§ 3606
and 3617 apply to federal agencies We note, how ever, that these sections do not appear to be directed at
governm ent activities. Section 3606 m akes it unlaw ful to discrim inate w ith respect to “ access to o r m em ber­
ship or p articipation in any m ultiple-listing service, real estate b ro k e rs' organization or other service, o rg an i­
zation, or facility relating to the business o f selling o r renting d w ellin g s.’' Section 3617 m akes it unlaw ful to
■‘coerce, intim idate, threaten, o r interfere w ith any perso n " w ith respect to the exercise o f rights protected by
!)§ 3603-3606 o f the Act.

                                                         57
                                      O pinions o f the O ffice o f L egal C ounsel


for punitive fines); A ta sca d ero State Hosp. v. Scanlon, 473 U.S. 234, 244-46
(1985) (States subject to section 504 o f Rehabilitation Act but immune from ac­
tions for m onetary relief); Em ployees v. M issouri Pub. Health D e p ’t, 411 U.S. 279
(1973) (States subject to Fair Labor Standards Act but immune from actions for
monetary relief).10 The Court has stated that additional language in the suit
authorization provision is necessary to “indicat[e] in some way by clear language
that the constitutional immunity [is being] swept aw ay.” Id. at 285.
   The only additional relevant language in § 3613 is subsection (c)(2), which
authorizes the award o f attorneys’ fees:

           In a civil action [brought by an aggrieved person under section
           3613], the court, in its discretion, may allow the prevailing party,
           other than the United States, a reasonable attorney’s fee and costs.
           The United States shall be liable for such fees and costs to the same
           extent as a private person.

The presence, in a provision authorizing the bringing of suits by private parties, of
language indicating that the United States may be liable for attorneys’ fees and
costs certainly indicates a recognition that the United States may be subject to suits
under the provision. The question rem ains whether that is a sufficient expression
o f a w aiver o f sovereign immunity against damages or any other monetary relief
except attorneys’ fees and costs.
    W e recognize that it is a plausible reading of the statute to answer that question
in the affirm ative. W e note, however, that the Supreme Court has declined to give
such a reading to an attorneys’ fees provision in a State sovereign immunity con­
text. See D ellm uth v. M uth, 491 U.S. 223, 231 (1989) (stating in decision holding
State sovereign imm unity not abrogated by Education of the Handicapped Act:
“The 1986 am endm ent to the EHA deals only with attorney’s fees, and does not
alter or speak to w hat parties are subject to suit.”). In any event, we conclude that
the statute does not meet the “unequivocal expression” standard because there is
another plausible interpretation of the attorneys’ fees language that would not en­
tail w aiver o f im munity for damages and other monetary relief. Just because the
United States is subject to the cause of action does not necessarily mean it is sub­
ject to the full range o f remedies that are set forth in the statute. These remedies
include not only compensatory and punitive damages, but also a “permanent or
tem porary injunction, temporary restraining order, or other order (including an
order enjoining the defendant from engaging in such [discriminatory housing]
practice or ordering such affirmative action as may be appropriate).” 42 U.S.C.
§ 3613(c)(1).

    10    T h e Suprem e C o u rt has stated that the stan d ard for e stablishing a w aiver o f the federal g o v ern m en t’s
sov ereig n im m u n ity is su b stan tially the sam e as the standard for finding congressional abrogation o f state
E leven th A m en d m en t im m u n ity S e e Nordic Village, 503 U S at 37. Eleventh A m endm ent cases like A ta s­
ca d ero and M isso u ri P u b lic H ea lth D ep 't are therefore helpful in o u r analysis

                                                            58
                    A u thority o f USDA to A w ard M onetary R e lie f f o r D iscrim ination


    The alternative plausible interpretation of the statute is that the attorneys’ fees
provision contemplates an action that is limited to seeking relief other than money
damages. This reading is based on the fact that the sovereign immunity of the
United States against non-monetary relief already has been waived by the Admin­
istrative Procedure Act (the ”A PA”), 5 U.S.C. §§ 701-706 which provides that

          [a]n action in a court o f the United States seeking relief other than
          money damages and stating a claim that an agency or an officer or
          em ployee thereof acted or failed to act in an official capacity or un­
          der color of legal authority shall not be dismissed nor relief therein
          be denied on the ground that it is against the United States.

5 U.S.C. § 7 0 2 .11 “[T]he caselaw of [the Court of Appeals for the D istrict of C o­
lumbia Circuit] confirms that ‘the [APA] waiver applies to any suit, whether under
the APA . . . or any other statute.’” 12 Other Circuits are in accord,13 and the Su­
preme Court has implicitly held that the APA waiver is not limited to actions
brought under the APA, see Bowen v. M assachusetts, 487 U.S. 879, 891-901
(1988) (APA waiver applied in action brought under 28 U.S.C. § 1331).
   Under the Supreme Court’s “unequivocal expression” standard, the availability
of this alternative interpretation of the Fair Housing Act attorneys’ fees provision
— that it contemplates an action for non-monetary relief based on the APA waiver
of sovereign immunity — precludes finding a waiver of sovereign immunity. See
N ordic Village, 503 U.S. at 37 (when a provision is subject to more than one plau­
sible interpretation, the “reading imposing monetary liability on the Government is
not ‘unam biguous’ and therefore should not be adopted”).14

     11 The legislative history o f this APA provision indicates that us purpose was “ to elim inate the defense o f
sovereign im m unity w ith respect to any action m a court o f the U nited States seeking relief o ther than money
dam ages and based on the assertion o f unlaw ful official action by a Federal officer.’* S Rep. No 94-996, at
2 (1976) S e e a l s o H .R Rep. N o 94-1656, at 9 ( 1976), reprinted m 1976 U S C C A N 6121, 6 1 2 9 C‘[T]he
tim e (has] now com e to elim inate the sovereign im m unity defense in all equitable actions for specific relief
against a Federal agency or officer acting in an official capacity ") See g enerally K enneth C D avis, A dm in­
istrative Law T rea tise § 23 19, at 192 (2d ed. 1983) (“T he m eaning o f the 1976 legislation is entirely clear
on its face, and that m eaning is fully corroborated by the legislative history. T h ai m eaning is very simple.
Sovereign im m unity in suits for relief other than money dam ages is no longer a defense.' ).
     12 A labam a v B uw sher, 734 F Supp 525, 533 (D D C. 1990), a fj'd , 935 F.2d 332 (D C C ir 1991), t e n
d e n ie d , 502 U S 981 (1991) (quoting P B ator, P M ishkin, D. M ellzer & D. S hapiro, H art a n d Wech.sler's
The Federal C ourts a n d The F ederal System 1154 (3d ed. 1988), and citing N atio n a l A.s.s’n o f C ounties v
B aker, 842 F 2d 369, 373 (D C . Cir. 19S8), cert denied, 488 U S 1005 (1989)), Schnapper v F oley, 667
F 2d 102, 108 (D .C C ir 1981), cert d en ied , 455 U S 948 (1982), S ea-land Service, Inc v A laska R.R , 659
F.2d 243, 244 (D C C ir 1981), cert denied, 455 U S. 919 (1982)
     n See, e.g., S p e cter v. G a rrett, 995 r.2 d 404, 4 1 0 (3d C ir 1993) (“ the w aiver o f sovereign im m unity
contained in [the A PA ] is not lim ited to suits brought under the A PA "), R ed Lake B a n d oj C hippew a Indians
v Barlow , 846 F.2d 474, 476 (8th Cir 1988) C‘[T]he w aiver o f sovereign im m unity contained in [the APA]
is not dependent on application o f the procedures and review standards o f the A PA It is dependent on the
suit against the g o vernm ent being one for non-m onetary re lie f" )
     14       A nother alternative interpretation may also be possible B ecause the U nited States may intervene in
private actions b rought under § 3613 in o rder to seek b ro ad er relief, .see 42 U S.C § 3613(e), it is possible
that the U nited States could incur liability for attorneys' fees and costs w ithout being a defendant. W e find

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                                     O pinions o f the O ffice o f L egal C ounsel


   W e therefore conclude that the text o f the Fair Housing Act as amended does
not waive the sovereign immunity of the United States against imposition of
monetary relief. The APA waives sovereign immunity as to any non-monetary
relief available under the Act.

                                                           C.

   The foregoing conclusion is reinforced by consideration o f the text and legisla­
tive history o f the Fair Housing Act when it was originally enacted as Title VIII of
the Civil Rights Act of 1968 (“Title V III”), supra, and of the 1988 amendments to
the Fair Housing Act (the “ 1988 A m endm ents”), Pub. L. No. 100-430, 102 Stat.
 1619 (1988). This is a useful methodology for considering whether the Act waives
sovereign immunity because it allows a focused analysis of whether Congress spe­
cifically intended to waive sovereign im m unity.15
   As discussed above, the language in the Fair Housing Act that provides the most
specific basis for an argum ent that sovereign immunity for monetary liability has
been waived is the language in the attorneys’ fees provision authorizing a court to
award “the prevailing party, other than the United States, a reasonable attorney’s
fee and costs. The United States shall be liable for such fees and costs to the same
extent as a private person.” 42 U.S.C. § 3613(c)(2). This specific reference to the
United States was not contained in the original Fair Housing A ct’s (Title V III’s)
attorneys’ fees provision, which authorized the courts to “award to the plaintiff . . .
reasonable attorney fees in the case o f a prevailing plaintiff: Provided, [t]hat the
said plaintiff in the opinion of the court is not financially able to assume said attor­
ney’s fees.” Pub. L. No. 90-284, § 812(c), 82 Stat. 89, 107 (1968). As with the
current version o f the Act, the original provision on enforcement by private per­
sons authorized an award o f damages to an aggrieved person but was silent as to
who could be potential defendants in the civil actions. Id. § 812, 82 Stat. at 107.



this in terp retatio n to be less plausible than th e non-m onetary re lie f interpretation because the latter gives
effect to pro v isio n s in the sam e subsection, w hich is devoted to *‘[r]elief w hich may be g ra n te d /’ 42 U .S.C.
§ 3 61 3 (c), w h ile the fo rm er requires reading to g eth er separate subsections and inferring that C ongress may
have co n tem p lated in su b sectio n (c) that in terv en tio n s by the A tto rney G eneral under subsection (e), in cases
where she “certifies that the case is o f general public im p o rtan ce” and seeks broader relief, m ight result in
aw ards o f attorneys fees and co sts against th e U nited Stales
    15     Ju stice S calia criticized this m ethodology in Pennsylvania v. Union G as Co., 491 U.S. at 29-30 (Scalia,
J., co n cu rrin g in part and d isse n tin g in part) ( “T h a t m ethodology is appropriate         if one assum es that the
task o f a co u rt o f law is to p lu m b the intent o f the particular C ongress that enacted a p articular provision.
T hat m ethodology is not m ine . .            It is o u r task . . not to e n te r the m inds o f the M em bers o f C ongress
. . b u t rath er to give fair and reasonable m ean in g to the text o f the U nited States Code, adopted by various
C ong resses at various tim es.") N otw ithstanding this criticism , w e believe the m ethodology is appropriate
here W h atev e r the m erit o f Justice Scalia’s em p h asis o f code m eaning ov er congressional intent in other
c ontex ts, w e do not think that approach is req u ired or desirable w here the question presented is w hether
sovereig n im m u n ity has been w aived and m ore than one statu to ry enactm ent is involved. W e note that no
other Ju stic e ex p ressed a g re em en t with J u stic e S c a lia ’s statem en t in U nion G as. M oreover, the C o u rt's
m ajority in D ellm u th used this approach S e e 491 U.S. at 227-32

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    Thus, the original Fair Housing Act contained no express or implied reference
to any cause of action against the United States in its provisions establishing a pri­
vate cause of action and authorizing awards o f attorneys’ fees. The 1988 Amend­
ments to the Act removed the “ability to pay” limitation on attorneys’ fee awards
and added language making it clear that the United States was subject to an award
of attorneys’ fees and costs. The 1988 Amendments, however, did not add any
language suggesting that the United States was subject to damages claims.
    The legislative history of the 1988 Amendments reinforces the conclusion that
the Fair Housing Act does not waive the sovereign immunity of the United States
for monetary relief.16 The principal legislative history for those amendments is
contained in the report o f the Committee on the Judiciary of the House o f Repre­
sentatives. H.R. Rep. No. 100-711 (1988), reprin ted in 1988 U.S.C.C.A.N. 2173.
In a paragraph giving an overview of the purpose of the amendments made by the
committee, the report stated that the revision “brings attorney’s fee language in title
VIII closer to the model used in other civil rights laws.” Id. at 13, rep rin ted in
 1988 U.S.C.C.A.N. at 2174. The committee went on to state later in the report that
“[t]he bill strengthens the private enforcement section by expanding the statute of
limitations, removing the limitation on punitive damages, and brings [sic] attor­
ney’s fee language in title VIII closer to the model used in other civil rights laws.”
Id. at 17, reprin ted in 1988 U.S.C.C.A.N. at 2178.17
    The committee report indicates that the thrust of the amendments was to remove
limitations on effective private enforcement by changing the statute of limitations,
removing the limit on punitive damages, and removing the “ability to pay” limita­
tion on the award o f attorneys’ fees. It also indicates an intent to conform the lan­
guage of the attorneys’ fees provision to that in other civil rights law s.18 There is
no discussion whatsoever o f actions against the United States, much less any refer­


    16 A lthough legislative history can n o t be relied upon to provide the “ unequivocal expression” the Su­
prem e C ourt requires, N o rd ic Village, 503 U S at 37, w e believe it is perm issible to cite legislative history to
reinforce a text-based conclusion that a statute does not w aive so v ereign im m unity. C onfidence in a c o n clu ­
sion based on the text can be strengthened w here the legislative history reveals no evidence o f intent to
w aive sovereign im m unity
    17 In the discu ssio n o f section 813(c) in the section-by-section portion o f the report, the com m ittee fo­
cused on rem oving the punitive dam ages lim itation. The follow ing is the entirety o f the discussion o f section
813(c)
       Section 8 1 3(c) provides for the types o f relief a court m ay grant T his section is intended to c o n ­
       tinue the types o f re lie f that are provided u n d e rc u rre n t law , but rem oves the $1000 lim itation on
       the aw ard o f punitive dam ages The C o m m ittee believes that the lim it on punitive dam ages
       served as a m ajor im pedim ent to im posing an effective d eterrent on violators and a disincentive
       for private perso n s to bring suits under existing law T he C om m ittee intends that courts be able
       to aw ard all rem edies provided under this section. As in Section 812(o), the c ourt may also
       aw ard a tto rn e y 's fees and costs.
H R. Rep. No. 100-711, at 39-40, rep rin ted m 1988 U .S.C C .A .N at 2200-01.
    18 For exam ple, the atto rn ey s' fees provision in T itle VII o f the C ivil R ights o f 1964 (em ploym ent dis­
crim ination) co n tain s the follow ing sim ilar language concerning the U nited States. “ [T ]he court . . . m ay
allow the prevailing party, other than . . . the U nited States, a reasonable atto rn e y ’s fee (including expert
fees) as part o f the costs, and . . the U nited Slates shall be liable for costs the sam e as a private person.”
42 U S.C. § 2 0 0 0e-5(k)

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                          O pinions o f the O ffice o f L eg a l Counsel


ence to an intent to waive sovereign im munity or to establish monetary liability for
the United States.
   Given the focused nature of the 1988 Am endm ents to the Fair Housing Act, it is
not reasonable to infer any intent to waive the sovereign immunity of the United
States against imposition of monetary relief. A t most, the amendments can be read
to waive sovereign imm unity against awards o f attorneys’ fees. Reading into the
am endm ent a broader waiver would be impermissible under the interpretative
method required by the Supreme C ourt and would amount to finding an accidental
waiver or a waiver by inadvertence.

                                               D.

   Our conclusion regarding waiver o f sovereign immunity under the Fair Housing
Act is supported by the case law on other statutes. In D ellmuth v. Muth, 491 U.S.
223 (1989), the Suprem e Court discussed w hether the Education of the Handi­
capped Act (“EH A ”), which, like the Fair Housing Act, had been amended to im­
pose liability for attorneys’ fees on an otherwise immune governmental entity (in
that case, the States), subjected the States to suit. Although the textual basis for
arguing waiver of sovereign immunity under that statute appears to be stronger
than is the case under the Fair Housing Act, the Court declined to find waiver.
   The EHA “enacts a com prehensive scheme to assure that handicapped children
may receive a free public education appropriate to their needs. To achieve these
ends, the Act m andates certain procedural requirements for participating state and
local educational agencies.” Id. at 225. In D ellm uth, the Supreme Court reversed
a decision o f the Third Circuit Court of Appeals that the EHA abrogated the States’
sovereign immunity against suit for damages. According to the Supreme Court,

       [T]he Court of Appeals rested principally on three textual provi­
       sions. The court first cited the A ct’s preamble, which states Con­
       gress’ finding that “it is in the national interest that the Federal
       governm ent assist State and local efforts to provide programs to
       m eet the education needs o f handicapped children in order to assure
       equal protection o f the law.” Second, and most important for the
       Court of Appeals, was the A ct’s judicial review provision, which
       perm its parties aggrieved by the adm inistrative process to “bring a
       civil action . . . in any State court o f com petent jurisdiction or in a
       district court o f the United States w ithout regard to the amount in
       controversy.” Finally, the Court o f Appeals pointed to a 1986
       am endm ent to the EHA, w hich states that the A ct’s provision for a
       reduction of attorney’s fees shall not apply “if the court finds that
       the State or local educational agency unreasonably protracted the
       final resolution o f the action or proceeding or there was a violation

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       o f this section.” In the view of the Court of Appeals, this am end­
       ment represented an express statement of Congress’ understanding
       that States can be parties in civil actions brought under the EHA.

Id. at 228 (citations omitted).
   We quote at length the Supreme C ourt’s rejection of the Court of Appeals’
analysis, because it can be applied directly to the Fair Housing Act:

       W e cannot agree that the textual provisions on which the Court of
       Appeals relied, or any other provisions of the EHA, demonstrate
       with unmistakable clarity that Congress intended to abrogate the
       States’ immunity from suit. The EHA makes no reference whatso­
       ever to either the Eleventh Amendment or the States’ sovereign im ­
       munity. Nor does any provision cited by the Court of Appeals
       address abrogation in even oblique terms, much less with the clarity
       A tascadero requires. The general statement of legislative purpose
       in the A ct’s preamble simply has nothing to do with the States’ sov­
       ereign immunity. The 1986 amendment to the EHA deals only with
       attorney’s fees, and does not alter or speak to what parties are sub­
       ject to suit. . . . Finally, [the private cause of action provision] pro­
       vides judicial review for aggrieved parties, but in no way intimates
       that the States’ sovereign immunity is abrogated. As we made plain
       in A tascadero, “ [a] general authorization for suit in federal court
       is not the kind o f unequivocal statutory language sufficient to abro­
       gate the Eleventh Amendment.”

        . . . W e recognize that the EH A ’s frequent reference to the Slates,
        and its delineation of the States’ important role in securing an ap­
        propriate education for handicapped children, make the States,
        along with local agencies, logical defendants in suits alleging viola­
        tions o f the EHA. This statutory structure lends fo rce to the infer­
        ence that the S tates were intended to be subject to dam ages actions
       f o r violations o f the EHA. But such a perm issible inference, w hat­
        ever its logical force, would remain ju s t that: a p erm issib le infer­
        ence. It would not be the unequivocal declaration which . . . is
        n ecessary before we w ill determ ine that C ongress intended to exer­
        cise its pow ers o f abrogation.

Id. at 231-32 (emphasis added) (citations omitted).
    Dellmuth presented a stronger case for waiver of sovereign immunity than the
Fair Housing Act because the EHA contains “ frequent reference[s] to the States”
and is obviously very much focused on the activities of the States, while the Fair

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                                     O pinions o f the O ffice o f L egal C ounsel


Housing Act is focused on the private sector and has relatively minor relevance to
the activities o f federal agencies. Nonetheless, the Supreme Court refused to find
that the EHA waived sovereign immunity, relying on specific points that are di­
rectly applicable to the Fair Housing A ct: that an attorneys’ fees provision speaks
only to attorneys’ fees and does not address who is subject to suit or what remedies
are available; that a general authorization for suit is not an “unequivocal expres­
sion” ; and that legitimate inferences that Congress intended a damages cause of
action are not “unequivocal expressions.” 19
    The Departm ent o f H ousing and U rban Development (“HUD”) has submitted a
letter stating its conclusion that “a federal agency . . . may be required to pay dam ­
ages and other relief . . . [for] violations of the [Fair Housing Act].”20 HUD relies
principally on the analysis contained in D oe v. A ttorn ey G eneral o f the U nited
S tates, 941 F.2d 780 (9th Cir. 1991), which held that the Rehabilitation Act waives
the sovereign immunity o f the United States against damage awards. As discussed
in the next section o f this memorandum, we believe that D oe used a method of
statutory interpretation that is impermissible under the Supreme Court precedents
and that the case was incorrectly decided.

                                      IV. R EH ABILITATION A C T

   W e reach fundamentally the same conclusions with respect to the Rehabilitation
Act o f 1973, as amended (the “Rehabilitation A ct”), 29 U.S.C. §§ 794-794c, as we
have reached with respect to the Fair Housing Act.

                                                           A.

   Section 504 o f the Rehabilitation Act, 29 U.S.C. § 794, prohibits discrimination
on the basis of disability:

              No otherwise qualified individual with a disability in the United
           States, as defined in section 706(8) of this title, shall, solely by rea­
           son of her or his disability, be excluded from the participation in, be
           denied the benefits of, or be subjected to discrimination under any
           program or activity receiving Federal financial assistance o r under

    19     T h e C o u rt's o p in to n in D ellm uth relies h eav ily on A ta sc a d e ro State H osp. v Scanlon, 473 U S 234
(1985). S ee 491 U .S. at 227, 23 0 -3 2 A ta sca d ero also stro n g ly supports the conclusion that the Fair H ous­
ing A ct does not w aive so v ereig n immunity fo r m onetary re lie f A ta sca d ero concerned the discrim ination
provisio n s o f the R eh ab ilitatio n A ct o f 1973 a n d is discussed in detail in the next section o f this m em oran­
dum , w hich ad d resses that act. A tascadero h e ld that the R ehabilitation A ct does not abrogate the sovereign
im m un ity o f the States W e co n clu d e in the n e x t section that the analysis in that case should apply fully to
actions ag ain st the federal g o v ern m en t The c a s e is significant fo r purposes o f the d iscussion in this section
because the R eh ab ilitatio n A ct has a structure th a t is sim ilar to the Fair H ousing Act
       L etter for W alter D ellinger, Assistant A tto rn e y G eneral, O ffice o f Legal Counsel, from R oberta A chten-
berg, A ssista n t S ecretary for F air Housing an d Equal O p p o rtu n ity , and N elson Diaz, G eneral C ounsel at I
(N ov 15, 1993).

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                    A u thority o f USDA to A w ard M onetary R elief f o r D iscrim ination


         any program o r activity conducted b y any E xecutive agen cy o r by
         the U nited States P ostal Service.

Id. § 794(a) (emphasis added). The italicized language, which was added to sec­
tion 504 in 1978,21 expressly subjects federal agencies to the discrimination prohi­
bitions of the Act.

                                                      B.

   Section 505 of the Rehabilitation Act (29 U.S.C. § 794a), which also was added
in 1978,22 sets forth the remedies available for violations of the discrimination pro­
hibitions. The following provisions of section 505 are pertinent here:23

          (a)(2) The remedies, procedures, and rights set forth in title VI of
          the Civil Rights Act of 1964 [42 U.S.C. §§ 2000d et seq.] shall be
          available to any person aggrieved by any act or failure to act by any
          recipient of Federal assistance or Federal provider of such assis­
          tance under section 794 o f this title.

          (b) In any action or proceeding to enforce or charge a violation of a
          provision of this subchapter, the court, in its discretion, may allow
          the prevailing party, other than the United States, a reasonable at­
          torney’s fee as part of the costs.

Id. § 794a(a)(2), (b).
   Thus, as with the Fair Housing Act, the Rehabilitation Act has had two legisla­
tive enactments that bear on the sovereign immunity question: the original dis­
crimination prohibition and a later amendment that can be argued to effect a waiver
of immunity against imposition o f monetary relief because it refers to the United
States in a way that recognizes that federal agencies may be defendants in private
actions. The history of the Rehabilitation Act enactments would at least initially
suggest the possibility of a more plausible argument in favor of waiver, however,
because its amendments were more sweeping than the Fair Housing Act am end­
ments: while the Fair Housing Act amendments of 1988 merely made relatively
minor changes to an existing cause o f action and modified an attorneys’ fees provi­
sion, the section 504 amendments in 1978 added for the first time a provision
authorizing a private action for violations and a provision authorizing attorneys’
fees awards.


   *' Pub. L No 95-602       119. 92 Stat. 2955, 2982 (1978)
   " Id. i} 120, 92 Stat at 2982.
   21    The only o th er provision o f section 505 (29 U S C <) 794a(a)( I )) c oncerns discrim ination in federal
em ploym ent, w hich we do not understand to be co v ered by y our opinion request

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                                      O pinions o f the O ffice o f L egal C ounsel


   However, after analyzing the Rehabilitation Act enactments under the Supreme
C ourt’s “unequivocal expression” standard, we conclude that there is no waiver of
sovereign im m unity for monetary relief. There is no fundamental difference be­
tween the effect o f the Rehabilitation Act enactm ents and the effect of the Fair
Housing Act enactments. In both cases, there is no express language authorizing
actions against the United States for dam ages or other monetary relief and it is rea­
sonable to read the cause o f action and attorneys’ fees provisions as allowing ac­
tions against the United States for injunctive relief pursuant to the waiver of
sovereign im m unity for such relief contained in the Administrative Procedure Act.
As the Suprem e C ourt made clear in N ordic Village, where a plausible reading is
available that does not authorize m onetary relief, “a reading imposing monetary
liability on the G overnm ent is not ‘unam biguous’ and therefore should not be
adopted.” 503 U.S. at 37.24

                                                            C.

   O ur conclusion is supported by the case law. The Supreme Court already has
held that the Rehabilitation Act does not abrogate the sovereign immunity of the
States. In A ta sca d e ro State Hosp. v. Scanlon, 473 U.S. 234 (1985), the Court held
that sections 504 and 505 of the Act do not abrogate the States’ Eleventh Am end­
ment sovereign immunity against imposition o f monetary relief. Id. at 244-46.
Applying an “unequivocally clear” standard,25 which is substantially the same as
the “unequivocal expression” standard governing waiver of federal immunity
(N ordic Village, 503 U.S. at 37), the Court held that States that receive federal
assistance are clearly subject to the discrim ination prohibition of section 504,

           [b]ut given their constitutional role, the States are not like any other
           class of recipients of federal aid. A general authorization for suit in
           federal court is not the kind o f unequivocal statutory language suffi­
           cient to abrogate the Eleventh Amendment.              W hen Congress
           chooses to subject the States to federal jurisdiction, it must do so
           specifically. Accordingly, w e hold that the Rehabilitation Act does
           not abrogate the Eleventh A m endm ent bar to suits against the
           States.


    "4 As we e x p lain ed in the course of our c o n sid eratio n o f the Fair H ousing Act, we believe it is perm issible
to c ite leg islativ e h isto ry 1 0 reinforce a tex t-b ased conclusion th at a statute does not w aive sovereign im m u­
nity W e h ave review ed the legislative h isto ry o f the R ehabilitation A ct am endm ents o f 1978 and have
found, as w as the case w ith resp ect to the F air H ousing A ct am endm ents o f 1988, that it does not include any
co n sid eratio n o f the su b jects o f sovereign im m u n ity o r o f establishing m onetary liability for the U nited
Slates. T h u s, it is c o n siste n t w ith o u r conclusion that those am endm ents do not w aive sovereign im m unity.
    23 A ta sc a d e ro e stab lish ed the following stan d a rd ' ‘C o n g ress may abrogate the S ta te s’ constitutionally
secured im m u n ity from suit in federal court o n ly by m aking its intention unm istakably clear in the language
of the s ta tu te .’’ 473 U S at 242.

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                     Authority o f USDA to A w a rd M onetary R e lie f f o r D iscrim ination


473 U.S. at 246 (citations om itted )26 The Court did not specifically address the
section 505 attorneys’ fees and costs provision, but its holding contains an implicit
conclusion that the provision does not waive immunity for any monetary relief
other than the attorneys’ fees and costs themselves. The statutory framework with
respect to the United States is substantially the same as with respect to the States,
and we see no basis for concluding that the language of the Act waives the federal
governm ent’s sovereign immunity when it does not abrogate the immunity of the
States.27
   A panel of the Ninth Circuit Court of Appeals has concluded otherwise, holding
that the Rehabilitation Act does indeed waive the sovereign immunity of the United
States against imposition of damages. D oe v. A ttorney G eneral o f the U nited
States, 941 F.2d 780 (1991). We believe, however, that D oe was incorrectly de­
cided. First, the Ninth Circuit’s analytical approach was inconsistent with the Su­
preme C ourt’s requirement of an “unequivocal expression” in statutory text without
resort to legislative history. See N ordic Village, 503 U.S. at 33-37. In the section
of its opinion entitled “The Legal Standard for Ascertaining W hether the G overn­
ment has Waived Sovereign Im m unity,” 941 F.2d at 787, the Ninth Circuit incor­
rectly stated that “[t]he key to determining whether there has been a waiver is
Congress’s intent as manifested in the statute’s language and legislative history.”
Id. at 788. Rather than using the special standard established by the Supreme
Court, the Ninth Circuit chose to view the issue as requiring application o f the
factors for implying a private right of action under C ort v. Ash, 422 U.S. 66, 78
(1975), with an additional sovereign immunity gloss that “only explicit congres­
sional intent in the statutory language and history will suffice” for implying a pri­
vate right of action against the United States. D oe, 941 F.2d at 788.
   In addition, the Ninth Circuit’s analysis of the Rehabilitation Act is unpersua­
sive. The court’s conclusion was as follows:

          In amending section 504, Congress made certain that federal agen­
          cies would be liable for violations o f the statute. Congress’s inser­
          tion of federal agencies in the pre-existing clause subjecting others
          to liability and its broad-brush remedy provision indicate that Con­
          gress intended that there be no distinction among section 504 de­
          fendants.

    26 R esponding (o the Suprem e C o u rt's decision in A ta sca d ero, C ongress passed legislation expressly
abrogating the sovereign im m unity o f the Slates under the R ehabilitation A ct and other civil rights statutes
Pub L No 99-506, § 1003, 100 Stat 1807, 1845 (1986). T hat legislation contained no provisions bearing
on the sovereign im m unity o f the U nited States
    27 The only treatm ent o f the federal governm ent in section 505 that is different from the treatm ent o f the
States (other than the obvious difference that federal agencies are not recipients o f federal assistance) is that
the attorneys fees provision (paragraph (b)) does not allow the U nited States as a prevailing party to recover
attorney s' fees T hat exception says nothing, o f course, about the liability o f the U nited States for dam ages
or other m onetary relief, and the fact that the U nited States may be subject to attorneys fees aw ards d oes not
w aive sovereign im m unity for dam ages and other kinds o f m onetary relief.

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                           O pinions o f the O ffice o f Legal C ounsel


Id. at 794.      That conclusion is incorrect in two fundamental respects. First, the
addition o f federal agencies to section 504 was not to a “clause subjecting others to
lia b ility '' but rather to a clause that im posed a non-discrimination substantive re­
quirem ent and did not address liability in any way; it was not until section 505 was
added in 1978 that the Rehabilitation Act addressed remedies. Second, the Su­
preme C ourt has rejected the view that the “broad-brush remedy provision [section
505] indicate[s] that C ongress intended that there be no distinction among section
504 defendants.” Id. As discussed above, the Supreme Court opined in A ta s­
ca d ero State H o sp ita l v. Scanlon that there are indeed distinctions to be made
am ong section 504 defendants, holding that

        given their constitutional role, the States are not like any other class
        o f recipients o f federal aid. A general authorization for suit in fed­
        eral court is not the kind of unequivocal statutory language suffi­
        cient to abrogate the Eleventh Amendment.              W hen Congress
        chooses to subject the States to federal jurisdiction, it must do so
        specifically.

473 U.S. at 246. The United States, of course, also has special constitutional
status, and the approach taken in A ta sca d ero requiring an unequivocal specific
expression o f intent to waive sovereign immunity is equally applicable in the con­
text of the federal governm ent. N ordic Village, 503 U.S. at 37.

                    V. E Q U AL CRED IT OPPO RTUNITY A C T

   In contrast to our preceding conclusions, we conclude that the Equal Credit Op­
portunity Act (the “C redit Act”), 15 U.S.C. §§ 169]-1691 f, partially waives the
sovereign immunity o f the United States against the imposition o f monetary relief,
by authorizing an award of compensatory damages. Although this conclusion is
not com pletely free from doubt because it is possible that the Supreme Court
would require a more explicit statem ent of waiver, we reach this conclusion be­
cause we can find no reasonable explanation for a provision exempting all govern­
ment creditors from liability for punitive dam ages other than that the provision
recognizes that governm ent creditors are liable for compensatory damages. There
is no com parable provision in any o f the other civil rights statutes addressed in this
memorandum.

                                               A.

   The Credit Act prohibits any creditor from discriminating against any applicant
with respect to any aspect of a credit transaction. Id. § 1691(a). The term
“creditor” is defined as “any person who regularly extends, renews, or continues
credit; any person who regularly arranges for the extension, renewal, or continua­

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                      A uthority o f USDA to A w ard M onetary R elie f f o r D iscrim ination


tion of credit; or any assignee of an original creditor who participates in the deci­
sion to extend, renew, or continue credit.” Id. § 1691a(e). For purposes o f the
Act, a “person” is “a natural person, a corporation, governm ent o r govern m en tal
subdivision o r agency, trust, estate, partnership, cooperative, or association.” Id.
§ 1691 a(f) (emphasis added).
    Although the Credit Act contains no further indication in its text or legislative
history as to whether the governmental references in the definition of “person”
were intended to include federal agencies, the natural understanding of the refer­
ences is that the federal government is included, because the language is unre­
stricted and there is no language suggesting any different treatment for different
levels o f government. If it were intended that the federal government was to be
exempt and the statute limited in its coverage to State and local governments, we
would expect that the text of the statute would make such a distinction — or at
least the distinction would be identified in legislative history. N either the statute
nor the legislative history contain any such suggestion.
    Our conclusion that the federal government is subject to the discrimination pro­
visions of the Credit Act may be reinforced by reference to another, previously
enacted statute that also regulates the extension of credit, the Truth in Lending Act
(“TILA ”), 15 U.S.C. §§ 1601 -1681 u. Both the Credit Act and TILA are part o f the
Consum er Credit Protection Act.28 Statutes addressing the same subject m atter —
that is, statutes “in pari materia” — should be construed together.29
    TILA uses the same language as the Credit Act concerning covered government
organizations. TILA applies to any “creditor,” which is defined as a “person” who
regularly extends certain types of consumer credit. Id. § 1602(f). “Person” is de­
fined as a “natural person” or an “organization.” Id. § 1602(d), and “organization”
includes a “government or governmental subdivision or agency.” Id. § 1602(c).
As with the Credit Act, there is no further indication of what levels of government
are covered. Unlike the Credit Act, however, TILA contains an express assertion
of sovereign immunity in the enforcement section of the statute, thus indicating a
clear recognition that the federal government is subject to the substantive provi­
sions o f TILA:

          [N]o civil or criminal penalty provided under this subchapter for
          any violation thereof may be imposed upon the United States or any
          departm ent or agency thereof, or upon any State or political subdi­
          vision thereof, or any agency o f any State of political subdivision.


   211 T IL A w as enacted in 1968 as title I o f the C onsum er C red it Protection A ct, Pub. L. N o 90-321, 82 Stat.
146, and the C red it Act w as added to the C onsum er C redit Protection A ct as title VII in 1974, Pub. L. No.
93-495, tit V, 88 Stat. 1500, 1521.
   29 S ee 2B N orm an J Singer, S u th erla n d S ta tu to ry C o n stru ctio n § 51.02, at 121 (5th ed 1992) ( “ It is
assum ed that w henever the legislature enacts a provision it has in m ind previous statutes relating to the sam e
subject m atter In the absence o f any express repeal or am en d m en t, the new provision is presum ed in accord
with the legislative policy em bodied in those prior statutes T h u s, they all should be construed together '*).

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Id. § 1612(b). It is reasonable to assum e that when Congress defined “person” in
the Credit Act to include a “government, governmental subdivision or agency,” it
intended those term s to have the same scope as the identical terms used in the pre­
viously enacted TIL A .30

                                                           B.

    O f course, as discussed in prior sections of this memorandum, the fact that fed­
eral agencies are subject to the substantive requirements of the Credit Act does not
necessarily mean that there has been a waiver of sovereign immunity against impo­
sition o f m onetary liability for violation of such requirements. The Credit Act sov­
ereign imm unity question is not a sim ple one, because there is no language directly
addressing the subject of sovereign immunity or directly stating that the United
States may be subject to an award o f monetary relief. However, as discussed be­
low, we find there has been a waiver because the A ct contains a provision that indi­
rectly, but in our view unequivocally, indicates that the United States may be
required to pay com pensatory damages.
    Section 1691e o f the Credit Act provides for a private right of action against
creditors who violate the discrimination prohibitions of the Act. Under subsection
(a), all creditors are liable for compensatory damages: “[A]ny creditor who fails to
comply with any requirem ent imposed under this subchapter shall be liable to the
aggrieved applicant for any actual dam ages sustained by such applicant acting ei­
ther in an individual capacity or as a m ember o f a class.” Under subsection (b), all
creditors except governm ental creditors are liable for punitive damages: “ [A]ny
creditor, other than a government or governmental subdivision or agency . . . shall
be liable to the aggrieved applicant for punitive damages . . . .” Equitable relief is
authorized under subsection (c).31 Finally, under subsection (d), costs and attor­
neys’ fees may be imposed: “In the case of any successful action under subsection
(a), (b), or (c) . . . , the costs of the action, together with a reasonable attorney’s
fee as determ ined by the court, shall be added to any damages awarded by the
court
    Subsection (b) of section 1691 e provides the key to finding a partial waiver of
sovereign immunity against monetary relief. Com ing immediately after a provision
(subsection (a)) that states that all creditors are liable for compensatory damages, a
provision exem pting government creditors from liability for punitive damages nec­
essarily implies a recognition that governm ent creditors are otherwise liable for
dam ages under the Act and remain liable for com pensatory damages under the pre­
ceding section, which contains no such limitation. “[A] limitation of liability is


    ,0 S e e id § 51 0 2 , at 122 ( '‘U nless the c o n te x t indicates otherw ise, w ords or phrases in a provision that
w ere used in a prioi act p ertain in g to the sam e su b ject m atter will be construed in the sam e sense ")
    11      “ U pon a p p licatio n by an aggrieved ap p lican t, the [court] m ay grant such equitable and declaratory relief
as is n e ce ssa ry to en fo rce the requirem ents im p o se d under th is s u b c h a p te r.' 1 5 U S C § 16 9 1e(c)

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nonsensical unless liability existed in the first place.” P ennsylvania v. Union Gas
Co., 491 U.S. 1, 13 (1989) (holding that CERCLA abrogated State sovereign im­
munity based in part on implication of provisions exempting States from liability
for certain actions).
   Thus, the Credit Act is different from the Fair Housing Act and the Rehabilita­
tion Act in the fundamental respect that it contains a provision indicating liability
for damages that is susceptible to no other plausible interpretation that would not
impose liability. W hereas we concluded that the attorneys’ fees provisions in the
Fair Housing Act and the Rehabilitation Act did not satisfy the “unequivocal ex­
pression” standard because there was another plausible interpretation that did not
impose monetary liability, see N ordic Village, 503 U.S. at 37, the interpretation of
subsections (a) and (b) that subjects government creditors, including the United
States, to liability for compensatory damages is the only plausible interpretation.
Accordingly, we conclude that the Credit Act waives sovereign immunity with re­
spect to compensatory damages.32

                             VI. A T T O R N E Y S ’ F E E S A N D C O S T S

    The analysis for whether attorneys’ fees and costs may be awarded under the
civil rights statutes whose anti-discrimination provisions apply to federal agencies
is simpler than the foregoing analysis on whether monetary relief may be awarded.
There is no need to decide whether the individual civil rights statutes waive sover­
eign immunity for attorneys’ fees and costs, because the Equal Access to Justice
Act (the “EAJA”) expressly waives sovereign immunity. Immunity for costs is
waived by 28 U.S.C. § 2412(a), and immunity for attorneys’ fees is waived by 28
U.S.C. §§ 2412(b) and 2412(d). Each o f these sections contains language author­
izing an award of attorneys’ fees or expenses to “the prevailing party in any civil
action brought by or against the United States.”
    The EAJA also specifically addresses the extent of the United States’ liability
for attorneys’ fees and costs. There are two separate attorneys’ fees regimes under
the EAJA. Under 28 U.S.C. § 2412(b), a court may award attorneys’ fees against
the United States, and if it does, “[t]he United States shall be liable for [attorneys’]
fees and expenses to the same extent that any other party would be liable under the
common law or under the terms of any statute which specifically provides for such


    12    O ur conclusion w ith respect lo (he w aiver o f sovereign im m unity under the C redit A ct has im plications
w ith respect to claim s alleging violations o f the Fair H ousing A ct A lthough the latter statute does not w aive
sovereign im m unity, conduct violative o f that statute may also violate the C redit Act T he fact that the tw o
statutes are, to som e extent, coextensive is acknow ledged in the C redit A c t's provision that ”‘fn]o person
aggrieved by a violation o f this subchapter and by a violation o f section 3605 o f [the Fair H ousing Act] shall
recover under this subchapter and section 3612 o f [the Fair H ousing Act], if such violation is based on the
sam e transaction " 15 U S C § 16 9 1e(i) Thus, w here a federal agency is discrim inating in the extension o f
credit, that conduct may violate both statutes. If it does, the agency w ould have authority pursuant to the
C redit A ct's w aiv er o f sovereign im m unity to provide m onetary relief in settlem ent of a claim , even if the
claim cites only the Fair Housing Act, to the extent allow ed by the C redit Act

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an aw ard.”33 Because the common law applies the “American Rule,” which pro­
vides that each litigant must ordinarily pay his or her own lawyer, A lyeska Pipeline
S ervice Co. v. W ilderness Society , 421 U.S. 240, 247 (1975), the extent of liability
for attorneys’ fees under the individual civil rights statutes should generally be
governed by the specific fee-shifting language o f the statutes, each of which
authorizes the court to award “a reasonable attorneys’ fee.”34
    As an alternative to an award of attorneys’ fees under § 2412(b), the EAJA pro­
vides in § 2412(d) for a mandatory award o f attorneys’ fees against the United
States (upon application by the prevailing party), except when the United States’
position was substantially justified o r when special circumstances would make an
award o f fees unjust. U nder subsection (d), attorneys’ fees are capped at the rate
o f $75 per hour, absent a special judicial finding that special factors justify higher
fees, § 2412(d)(2)(A), and parties m ay only recover if they have incomes or net
worths below certain levels, § 2412(d)(2)(B).
    The EA JA also provides for the extent of the United States’ liability for costs:
“A judgm ent for costs when taxed against the United States shall . . . be limited to
reimbursing in whole or in part the prevailing party for the costs incurred by such
party in the litigation.” 28 U.S.C. § 2412(a)(1). Because this provision begins
with the caveat “[ejxcept as otherwise specifically provided by statute,” it is neces­
sary to decide whether the civil rights statutes provide differently with respect to
costs. The Rehabilitation Act and the Equal Credit Opportunity Act do not contain
language specifically addressing the liability of the United States for costs. See 29
U.S.C. § 794a(b); 15 U.S.C. § 1691e(d). Therefore, the EAJA provision applies
under those two statutes. The Fair H ousing Act, however, does contain a specific
provision that displaces the EAJA provision. It provides that “[t]he United States
shall be liable for . . . costs to the same extent as a private person.” 42 U.S.C.
§ 3613(c)(2).

                                              VII. C O N C L U S IO N S

   The Suprem e Court has established a strict “unequivocal expression” standard
for determ inations on whether a statute waives the sovereign immunity of the
United States against imposition of monetary relief. One of the civil rights statutes
that we have been asked to review, Title VI o f the Civil Rights Act of 1964, does
not prohibit discrim ination by federal agencies. Anti-discrimination provisions in
the rem aining statutes do apply to federal agencies, but only one of them, the Equal
Credit O pportunity Act, contains a waiver of sovereign immunity regarding mone­
tary relief, and that w aiver is limited to compensatory damages. Agencies there­

   31 B ecause § 2 4 1 2 (b ) b eg in s w ith the c av eat “ [u]nless expressly prohibited by statute,” we have review ed
the c ivil rig h ts statu tes to determ in e w hether th e y “ex p ressly prohibit" an aw ard o f a tto rn e y s’ fees against the
U nited Slates. T h e y do not.
   14      S e e F air H ousing Act, 4 2 U.S C § 3 6 1 3 (c)(2 ), R ehabilitation A ct, 29 U S.C. § 794a(b), Equal C redit
O pportu n ity A ct, 15 U S C. § 1 6 9 1e(d).

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               A u thority o f USDA to A w a rd M onetary R e lie f fo r D iscrim ination


fore have authority to provide compensatory damages to the extent allowed by the
Credit Act in their voluntary settlement of discrimination claims if the conduct
complained of violates the Credit Act. In addition, the Equal Access to Justice Act
authorizes awards of attorneys’ fees and costs against federal agencies.



                                                            W ALTER DELLINGER
                                                          A ssistan t A ttorn ey G en eral
                                                            Office o f L egal C ounsel




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