8 Fair empl.prac.cas. 725, 8 Empl. Prac. Dec. P 9688 Dave Van Hoomissen, Equal Emp. Opportunity Comm'n, Plaintiff-Intervenor-Appellant v. Xerox Corp., 503 F.2d 1131 (9th Cir. 1974). · Go Syfert
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8 Fair empl.prac.cas. 725, 8 Empl. Prac. Dec. P 9688 Dave Van Hoomissen, Equal Emp. Opportunity Comm'n, Plaintiff-Intervenor-Appellant v. Xerox Corp., 503 F.2d 1131 (9th Cir. 1974). Cases Citing This Book View Copy Cite
138 citation events (9 in the last 25 years) across 35 distinct courts.
Strongest positive: Cruz v. Union Independiente Autentica de Empleados de la Autoridad de Acueductos y Alcantarillados (UIA) (prd, 2020-03-05) · Strongest negative: Hanrahan v. Hampton (scotus, 1980-08-11)
Treatment trajectory · 1974 → 2026 · click a year to view as-of
1974 2000 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited "but see" Hanrahan v. Hampton (2×)
SCOTUS · 1980 · signal: but cf. · confidence high
But cf. Van Hoomissen v. Xerox Corp., 503 F. 2d 1131, 1133 (CA9 1974).
discussed Cited as authority (rule) Cruz v. Union Independiente Autentica de Empleados de la Autoridad de Acueductos y Alcantarillados (UIA) (2×) also: Cited "see"
D.P.R. · 2020 · confidence medium
As the Ninth Circuit stated, “the fact that Xerox prevailed on this appeal qualifies it as a prevailing party eligible for an award of attorney’s fees connected with the appeal.” Van Hoomissen, 503 F.2d at 1133 (emphasis added).
discussed Cited as authority (rule) Avera v. Secretary of Health and Human Services (2×)
Fed. Cir. · 2008 · confidence medium
For limitations on the bringing of civil actions for vaccine-related injuries or deaths associated with the administration of a vaccine after October 1, 1988, see section 300aa-11(a)(2) of this title. 42 U.S.C. § 300aa-21(a). [6] See Rosenfeld v. United States, 859 F.2d 717 , 727 (9th Cir.1988) (awarding interim fees under the Freedom of Information Act); Parker v. Lewis, 670 F.2d 249, 250 (D.C.Cir.1981) (awarding interim fees under Title VII of the Civil Rights Act of 1964); Smallwood v. Nat'l Can Co., 583 F.2d 419 , 421 (9th Cir.1978) (same); James v. Stockham Valves & Fittings Co., 559 F.2…
discussed Cited as authority (rule) Cobell v. Norton
D.D.C. · 2004 · confidence medium
Defendants correctly state that “courts have recognized the propriety of an award of interim attorney fees where a party establishes an entitlement to final *42 relief on the merits of a claim before the termination of the litigation as a whole.” Defs.’ Opp’n to Pis.’ EAJA Motion at 2. 1 The legislative history of EAJA supports interim awards and even cites a district court case in this circuit: “[a]n award may thus be appropriate where the party has prevailed on an interim order which was central to the case, Parker v. Matthews, 411 F.Supp. 1059, 1064 (D.D.C.1976), or where an int…
discussed Cited as authority (rule) Brickwood Contractors, Inc. v. United States
Fed. Cl. · 2001 · confidence medium
A fee award may be appropriate where the party has prevailed on an interim order which was central to his case, Parker v. Matthews, 411 F.Supp. 1059, 1064 (D.D.C.1976), or where an interlocutory appeal is “sufficiently significant and discrete to be treated as a separate unit,” Van Hoomissen v. Xerox Corp., 503 F.2d 1131, 1133 (9th Cir.1974).
discussed Cited as authority (rule) Consumers Power Co. v. United States Department of Energy
Temp. Emerg. Ct. App. · 1990 · confidence medium
“It is difficult to generalize whether a ‘phase’ [of litigation] is ‘sufficiently significant and discrete to be treated as a separate unit’ for the purposes of an award of attorney fees.” Id. (quoting Van Hoomissen v. Xerox Corp., 503 F.2d 1131, 1133 (9th Cir.1974)).
discussed Cited as authority (rule) Cox Construction Co. v. United States
Ct. Cl. · 1989 · confidence medium
In exercising this discretion, a court must ask whether the proposed division of defendant’s position would yield portions that are analytically “ ‘sufficiently significant and discrete to be treated as :.. separate unit[s]’ for purposes of [a fee] award.” Devine v. Sutermeister, 733 F.2d at 896 , quoting Van Hoomissen v. Xerox Corp., 503 F.2d 1131, 1133 (9th Cir.1974).
cited Cited as authority (rule) Kunz Construction Co. v. United States
Ct. Cl. · 1989 · confidence medium
Devine v. Sutermeister, 733 F.2d at 896, quoting Van Hoomissen v. Xerox Corp., 503 F.2d 1131, 1133 (9th Cir.1974).
discussed Cited as authority (rule) Universal Restoration, Inc. v. United States
Ct. Cl. · 1989 · confidence medium
In exercising this discretion, a court must ask whether the motion, issue or phase whose separate evaluation is sought is “ ‘sufficiently significant and discrete to be treated as a separate unit.’ ” Devine v. Sutermeister, 733 F.2d at 896 , quoting Van Hoomissen v. Xerox Corp., 503 F.2d 1131, 1133 (9th Cir.1974) (emphasis added).
cited Cited as authority (rule) Freesen v. Commissioner
Tax Ct. · 1987 · confidence medium
United States v. Chemical Foundation, 272 U.S. 1, 20 (1926); Van Hoomissen v. Xerox Corp., 503 F.2d 1131, 1132 (9th Cir. 1974).
discussed Cited as authority (rule) Corine Proctor v. Consolidated Freightways Corporation of Delaware, a Delaware Corporation
9th Cir. · 1986 · confidence medium
Section 2000e-5(k) provides: 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---- Proctor argues that an interim fee award is justified on this interlocutory appeal because it is “sufficiently significant and discrete to be treated as a separate unit.” See Smallwood v. National Can Co., 583 F.2d 419, 421 (9th Cir.1978) (fees awarded to prevailing party on appeal from issuance of permanent injunction); Van Hoomissen v. Xerox Corp.,…
discussed Cited as authority (rule) Bunn v. Bowen
E.D.N.C. · 1986 · confidence medium
Like the waiver of immunity itself, which must be “unambiguously expressed,” the right to order an award of attorney’s fees against the government must be “specifically and unequivocally authorized by Congress.” Id. citing Van Hoomissen v. Xerox Corp., 503 F.2d 1131, 1132 (9th Cir.1974).
discussed Cited as authority (rule) Walters v. City of Atlanta
N.D. Ga. · 1985 · confidence medium
Bradley v. School Board of City of Richmond, 416 U.S. 696, 723 , 94 S.Ct. 2006, 2022 , 40 L.Ed.2d 476 (1984); Smallwood v. National Can Co., 583 F.2d 419 (9th Cir.1978); James v. Stockham Valves & Fittings Co., 559 F.2d 310, 358-59 (5th Cir.1977), cert. denied, 434 U.S. 1034 , 98 S.Ct. 767 , 54 L.Ed.2d 781 (1978); Van Hoomissen v. Xerox Corp., 503 F.2d 1131, 1133 (9th Cir.1974); Powell v. United States, 569 F.Supp. 1192 , 1197—1200 (N.D.Cal.1983); Westfall v. Board of Commissioners of Clayton County, 477 F.Supp. 862 (N.D.Ga.1979).
discussed Cited as authority (rule) Childress v. Heckler
E.D. La. · 1985 · confidence medium
A fee award may thus be appropriate where the party has prevailed on an interim order which was central to the case, Parker v. Matthews, 411 F.Supp. 1059, 1064 (D.D.C.1976) or where an interlocutory appeal is “sufficiently significant and discrete to be treated as a separate unit”, Van Hoomissen v. Xerox Corp., 503 F.2d 1131, 1133 (9th Cir.1974).
discussed Cited as authority (rule) Bohn v. Heckler
N.D. Ill. · 1985 · confidence medium
Parker v. Matthews, 411 F.Supp. 1059, 1064 (D.D.C.1976), or where an interlocutory appeal is “sufficiently significant and discrete to be treated as a separate unit”, Van Hoomissen v. Xerox Corp., 503 F.2d 1131, 1133 (9th Cir.1974).
cited Cited as authority (rule) Underwood v. Pierce
9th Cir. · 1985 · confidence medium
We cannot order an award that has not been "specifically and unequivocally authorized by Congress." Van Hoomissen v. Xerox Corp., 503 F.2d 1131, 1132 (9th Cir.1974).
cited Cited as authority (rule) Underwood v. Pierce
9th Cir. · 1985 · confidence medium
We cannot order an award that has not been “specifically and unequivocally authorized by Congress.” Van Hoomissen v. Xerox Corp., 503 F.2d 1131, 1132 (9th Cir.1974).
discussed Cited as authority (rule) Sizemore v. Heckler
N.D. Ill. · 1985 · confidence medium
A fee may thus be appropriate where the party has prevailed on an interim order which was central to the case, Parker v. Mathews, 411 F.Supp. 1059, 1064 (D.D.C.1976), or where an interlocutory appeal is “sufficiently significant and discrete to be treated as a separate unit”, Van Hoomissen v. Xerox Corp., 503 F.2d 1131, 1133 (9th Cir.1974).
discussed Cited as authority (rule) Jones v. Heckler
E.D. Wis. · 1985 · confidence medium
A fee award may thus be appropriate where the party has prevailed on an interim order which was central to the case, Parker v. Matthews, 411 F.Supp. 1059, 1064 (D.D.C.1976), or where an interlocutory appeal is “sufficiently significant and discrete to be treated as a separate unit”, Van Hoomissen v. Xerox Corp., 503 F.2d 1131, 1133 (9th Cir.1974).
discussed Cited as authority (rule) Gary D. Austin, Ann Crispin, Arlana Hines, Anola Nightengale v. Department of Commerce
Fed. Cir. · 1984 · confidence medium
A fee award may be appropriate where the party has prevailed on an interim order which was central to his case, Parker v. Matthews, 411 F.Supp. 1059, 1064 (D.D.C.1976), or where an interlocutory appeal is “sufficiently significant and discrete to be treated as a separate unit,” Van Hoomissen v. Xerox Corp., 503 F.2d 1131, 1133 (9th Cir.1974).
cited Cited as authority (rule) United States v. Rubin
D. Colo. · 1984 · confidence medium
Van Hoomissen v. Xerox Corp., 503 F.2d 1131, 1133 (9th Cir.1974).
cited Cited as authority (rule) Devine v. Sutermeister
Fed. Cir. · 1984 · confidence medium
Van Hoomissen v. Xerox Corp., 503 F.2d 1131, 1133 (9th Cir.1974); see also H.R.REP.
cited Cited as authority (rule) Devine v. Sutermeister
Fed. Cir. · 1984 · confidence medium
Van Hoomissen v. Xerox Corp., 503 F.2d 1131, 1133 (9th Cir.1974); see also H.R.REP.
discussed Cited as authority (rule) United States v. 101.80 Acres of Land
9th Cir. · 1983 · confidence medium
A fee award may thus be appropriate here the party has prevailed on an interim order which was central to the case, Parker v. Matthews, 411 F.Supp. 1059, 1064 (D.D.C.1976), or where an interlocutory appeal is “sufficiently significant and discrete to be treated as a separate unit,” Van Hoomissen v. Xerox Corp., 503 F.2d 1131, 1133 (9th Cir.1974).
discussed Cited as authority (rule) United States v. 101.80 Acres of Land, More or Less, in Idaho County, Idaho, Joseph Schwartz and Lorena Rose Schwartz, United States of America v. 35.54 Acres of Land, More or Less, in Idaho County, Idaho, Ora Hazelbaker, a Widow
9th Cir. · 1983 · confidence medium
A fee award may thus be appropriate here the party has prevailed on an interim order which was central to the case, Parker v. Matthews, 411 F.Supp. 1059, 1064 (D.D.C.1976), or where an interlocutory appeal is "sufficiently significant and discrete to be treated as a separate unit," Van Hoomissen v. Xerox Corp., 503 F.2d 1131, 1133 (9th Cir.1974). 25 H.R.Rep.
discussed Cited as authority (rule) Knox v. Schweiker
D. Del. · 1983 · confidence medium
A fee award may thus be appropriate where the party has prevailed on an interim order which was central to the case, Parker v. Matthews, 411 F.Supp. 1059, 1064 (D.D.C.1976), or where an interlocutory appeal is “sufficiently significant and discrete to be treated as a separate unit”, Van Hoomissen v. Xerox Corp., 503 F.2d 1131, 1133 (9th Cir.1974).
discussed Cited as authority (rule) Natural Resources Defense Council, Inc. v. U.S. Environmental Protection Agency, Chemical Manufacturers Association, Intervenors (2×)
3rd Cir. · 1983 · confidence medium
A fee award may thus be appropriate where the party has prevailed on an interim order which was central to the case, Parker v. Matthews, 411 F.Supp. 1059, 1064 (D.D.C.1976), or where an interlocutory appeal is "sufficiently significant and discrete to be treated as a separate unit", Van Hoomissen v. Xerox Corp., 503 F.2d 1131, 1133 (9th Cir.1974). 42 Senate Report at 7 (emphasis supplied).
discussed Cited as authority (rule) United States of America for Jon P. Heydt, Special Agent v. Citizens State Bank, Armin Moths and United States Taxpayers Union
8th Cir. · 1982 · confidence medium
A fee award may thus be appropriate where the party has prevailed on an interim order which was central to the case, Parker v. Matthews, 411 F.Supp. 1059, 1064 (D.D.C.1976), aff’d, 561 F.2d 320 (D.C.Cir. 1977), or where an interlocutory appeal is “sufficiently significant and discrete to be treated as a separate unit,” Van Hoomissen v. Xerox Corp., 503 F.2d 1131, 1133 (9th Cir. 1974).
discussed Cited as authority (rule) John W. McGowan v. F. Ray Marshall, Secretary of Labor, and Occupational Safety and Health Review Commission
5th Cir. · 1979 · confidence medium
United States v. Chemical Foundation, Inc., 272 U.S. 1, 20 , 47 S.Ct. 1 , 71 L.Ed. 131 (1926); Van Hoomissen v. Xerox Corp., 503 F.2d 1131, 1132 (9th Cir. 1974); Pyramid Lake Paiute Tribe of Indians v. Morton, 163 U.S.App.D.C. 90, 91 , 499 F.2d 1095, 1096 (D.C.
discussed Cited as authority (rule) Westfall v. Board of Com'rs of Clayton Cty.
N.D. Ga. · 1979 · confidence medium
Such awards, while permissible under Title VII cases, and hence under § 1988, should only be made, however, to a party which has prevailed on a portion of the case which “is sufficiently significant and discrete to be treated as a separate unit.” Van Hoomissen v. Xerox Corp., 503 F.2d 1131, 1133 (9th Cir. 1974); see also United States v. Allegheny-Ludlum Industries, Inc., 558 F.2d 742, 743-44 (5th Cir. 1977), modified 568 F.2d 1073 (5th Cir. 1978); Smith v. University of North Carolina, 47 U.S.L.W. 2498 (M.D.N.C.1979).
cited Cited as authority (rule) Sandra Silver v. Kca, Inc.
9th Cir. · 1978 · confidence medium
The applicable standard for the granting of attorneys’ fees to a prevailing defendant in a Title VII appeal is set forth in Van Hoomissen v. Xerox Corp., 503 F.2d 1131, 1133 (9th Cir. 1974).
cited Cited as authority (rule) Smallwood v. National Can Co.
9th Cir. · 1978 · confidence medium
Van Hoomissen v. Xerox Corp., 503 F.2d 1131, 1133 (9th Cir. 1974).
cited Cited as authority (rule) 18 Fair empl.prac.cas. 709, 18 Empl. Prac. Dec. P 8676
9th Cir. · 1978 · confidence medium
Van Hoomissen v. Xerox Corp., 503 F.2d 1131, 1133 (9th Cir. 1974). 7 Affirmed. * The Honorable Walter J.
cited Cited as authority (rule) Christiansburg Garment Co. v. Equal Employment Opportunity Commission
SCOTUS · 1978 · confidence medium
See, e. g., United States Steel Corp. v. United States, 519 F. 2d 359, 362 (CA3); Van Hoomissen v. Xerox Corp., 503 F. 2d 1131, 1132-1133 (CA9).
discussed Cited as authority (rule) United States v. Philip A. McLennan and Fred H. Bender (2×)
9th Cir. · 1977 · confidence medium
See Ex parte Collett, 337 U.S. 55, 61 , 69 S.Ct. 944 , 93 L.Ed. 1207 (1949); Packard Motor Car Co. v. NLRB, 330 U.S. 485, 492 , 67 S.Ct. 789 , 91 L.Ed. 1040 (1947); United States v. American Trucking Ass'ns, Inc., 310 U.S. 534, 543 , 60 S.Ct. 1059 , 84 L.Ed. 1345 (1940); United States v. Sabatino, 485 F.2d 540, 544 (2d Cir. 1973), cert. denied, 415 U.S. 948 , 94 S.Ct. 1469 , 39 L.Ed.2d 563 (1974). 8 I would, therefore, heed the sardonically expressed teaching of Mr. Justice Frankfurter that 72 this is a case for applying the canon of construction of the wag who said, when the legislative histo…
cited Cited as authority (rule) EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. the BAILEY COMPANY, INC., Defendant-Appellee
6th Cir. · 1977 · confidence medium
See United States Steel Corp. v. United States, 519 F.2d 359, 362 (3d Cir. 1975); Van Hoomissen v. Xerox Corp., 503 F.2d 1131, 1133 (9th Cir. 1974).
cited Cited as authority (rule) United States v. Allegheny-Ludlum Industries, Inc.
5th Cir. · 1977 · confidence medium
Van Hoomissen v. Xerox Corp., 503 F.2d 1131, 1133 (9th Cir. 1974).
discussed Cited as authority (rule) 15 Fair empl.prac.cas. 583, 15 Empl. Prac. Dec. P 7824 United States of America v. Allegheny-Ludlum Industries, Inc. v. Sidney S. Harris, Intervenors-Appellants
5th Cir. · 1977 · confidence medium
For the time being, "(t)his is a case for applying the canon . . . when the legislative history is doubtful, go to the statute." Greenwood v. United States, 350 U.S. 366, 374 , 76 S.Ct. 410, 415 , 100 L.Ed. 412 (1956). 5 Without prejudice to its renewal below at an appropriate time, the motion is DENIED. 1 United States v. Allegheny-Ludlum Industries, Inc., 546 F.2d 1249 (5th Cir., 1977) 2 Van Hoomissen v. Xerox Corp., 503 F.2d 1131, 1133 (9th Cir. 1974).
cited Cited as authority (rule) Sek v. Bethlehem Steel Corp.
E.D. Pa. · 1976 · confidence medium
U. S. Steel Corp. v. United States, 519 F.2d 359, 364-65 (3rd Cir. 1975); Van Hoomissen v. Xerox Corp., 503 F.2d 1131, 1133 (9th Cir. 1974).
discussed Cited as authority (rule) Violet Davis Grubbs, Individually, and on Behalf of All Persons Similarly Situated v. Earl L. Butz, Individually, and as Secretary of Agriculture (2×)
D.C. Cir. · 1976 · confidence medium
Read broadly, Van Hoomisen approves fee awards in connection with “significant and discrete” interlocutory appeals, see id. at 1133; read narrowly, it approves awards only when an interlocutory appeal results in a final resolution of a separable dispute (the claim of discriminatory hiring). .
discussed Cited "see" Air Line Stewards & Stewardesses Ass'n, Local 550 v. Trans World Airlines, Inc.
N.D. Ill. · 1986 · signal: see · confidence high
See Van Hoomissen v. Xerox Corp., 503 F.2d 1131 (9th Cir.1974); Akron Center for Reproductive Health v. City of Akron, 604 F.Supp. 1268 (N.D.Ohio 1984); Thompson v. Sawyer, 586 F.Supp. 635 (D.D.C.1984) (currently on appeal, D.C.Cir. # 85-5264).
cited Cited "see" United States v. CBS, Inc.
C.D. Cal. · 1984 · signal: see · confidence high
See Van Hoomissen v. Xerox Corp., 503 F.2d 1131, 1132 (9th Cir.1974); United States v. Chemical Foundation, Inc., 272 U.S. 1, 20-21 , 47 S.Ct. 1, 8 , 71 L.Ed. 131 (1927).
discussed Cited "see" Equal Employment Opportunity Commission v. Bendix Corp.
M.D. Fla. · 1977 · signal: see · confidence high
See Van Hoomissen v. Xerox Corporation, 503 F.2d 1131 (9th Cir. 1974); EEOC v. Western Electric Company, 10 FEP Cases 1275 (D.Md.1975); EEOC v. MacMillan Bloedel Containers, Inc., 503 F.2d 1086 (6th Cir. 1974).
cited Cited "see" Booker Gibson v. Local 40, Supercargoes and Checkers of the International Longshoremen's and Warehousemen's Union
9th Cir. · 1976 · signal: see · confidence high
See Van Hoomissen v. Xerox Corp., 503 F.2d 1131, 1133 (9th Cir. 1974); cf. Albemarle Paper Co. v. Moody, 422 U.S. 405, 415, 95 S.Ct. 2362 , 45 L.Ed.2d 280 (1975).
discussed Cited "see" UNITED STATES STEEL CORPORATION, Appellant, v. UNITED STATES of America Et Al.
3rd Cir. · 1975 · signal: see · confidence high
See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 , 95 S.Ct. 1612 , 44 L.Ed.2d 141 (1975). 7 . 28 U.S.C. § 2412 (Supp.1974). 8 . 42 U.S.C. § 2000e-5(k). 9 . 503 F.2d 1131 (9th Cir. 1974). 10 .
cited Cited "see, e.g." Thompson v. Sawyer
D.D.C. · 1984 · signal: see also · confidence low
Id; see also Van Hoomissen v. Xerox Corp., 503 F.2d 1131 (9th Cir.1974) (court granted fees arising out of unsuccessful appeal of denial of motion to intervene).
cited Cited "see, e.g." Little v. Southern Electric Steel Co.
5th Cir. · 1979 · signal: see also · confidence low
See also Van Hoomissen v. Xerox Corp., 503 F.2d 1131 (9th Cir. 1974).
cited Cited "see, e.g." 20 Fair empl.prac.cas. 569, 19 Empl. Prac. Dec. P 9237 Reddick Little, on Behalf of Himself and Others Similarly Situated, Plaintiff- Cross-Appellee v. Southern Electric Steel Co., Etc., Cross-Appellant, United Steelworkers of America, Afl-Cio
5th Cir. · 1979 · signal: see also · confidence low
See also Van Hoomissen v. Xerox Corp., 503 F.2d 1131 (9th Cir. 1974).
cited Cited "see, e.g." Bolton v. Murray Envelope Corp.
5th Cir. · 1977 · signal: see also · confidence low
See also Van Hoomissen v. Xerox Corp., 503 F.2d 1131 (9th Cir. 1974).
cited Cited "see, e.g." 15 Fair empl.prac.cas. 478, 14 Empl. Prac. Dec. P 7606 Mrs. Natalie Bolton, Individually and on Behalf of All Others Similarly Situated v. Murray Envelope Corporation
5th Cir. · 1977 · signal: see also · confidence low
See also Van Hoomissen v. Xerox Corp., 503 F.2d 1131 (9th Cir. 1974).
Retrieving the full opinion text from the archive…
8 Fair empl.prac.cas. 725, 8 Empl. Prac. Dec. P 9688 Dave Van Hoomissen, Equal Employment Opportunity Commission, Plaintiff-Intervenor-Appellant
v.
Xerox Corporation
74-1037.
Court of Appeals for the Ninth Circuit.
Nov 6, 1974.
503 F.2d 1131
Cited by 1 opinion  |  Published

503 F.2d 1131

8 Fair Empl.Prac.Cas. 725, 8 Empl. Prac. Dec. P 9688
Dave VAN HOOMISSEN, Plaintiff, Equal Employment Opportunity
Commission, Plaintiff-Intervenor-Appellant,
v.
XEROX CORPORATION et al., Defendants-Appellees.

No. 74-1037.

United States Court of Appeals, Ninth Circuit.

Sept. 13, 1974
Rehearing En Banc Denied Nov. 6, 1974.

Carlos G. Ynostroza, E.E.O.C., San Francisco, Cal., Beatrice Rosenberg, Charles L. Reischel, James P. Scanlan, Washington, D.C., for plaintiff-intervenor-appellant.

Richard Haas of Brobeck, Phleger & Harrison, San Francisco, Cal., for defendants-appellees.

Before DUNIWAY, WRIGHT and CHOY, Circuit Judges.

SUPPLEMENTAL OPINION

EUGENE A. WRIGHT, Circuit Judge:

[*~1131]1

Van Hoomissen sued Xerox, his former employer, under Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e-2(a)), alleging that Xerox fired him and engaged in other acts of retaliation because of his efforts to recruit minorities. The Equal Opportunity Commission sought leave to intervene under 42 U.S.C. 2000e-5(f)(1) and Fed.R.Civ.P. 24(b). In its proposed complaint in intervention, EEOC alleged that Xerox both engaged in discriminatory hiring practices and had unlawfully retaliated against Van Hoomissen. The district court granted EEOC leave to intervene, limited to the issue of retaliation, EEOC appealed, claiming that it should have been permitted to challenge Xerox's alleged discriminatory hiring practices in its complaint in intervention. We dismissed the appeal in Van Hoomissen v. Xerox Corp., 497 F.2d 180 (9th Cir. 1974).

2

Xerox now petitions this court, pursuant to 706(k) of the Act (42 U.S.C. 2000e-5(k)), for an award of attorney's fees as part of its costs on appeal. Section 706(k) provides:

3

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.

4

On its face, this section authorizes an award of attorney's fees against the Commission. The word 'costs' is used twice. In its first occurrence, it is clear that it includes attorney's fees, since the latter is explicitly denominated 'a part of the costs.' In the second reference, 'costs' are assessable against the Commission. Unless the meaning of 'costs' changes during the eleven words which separate its two usages, it is clear that attorney's fees can be assessed against the Commission.

5

The Commission makes an ingenious and indeed persuasive argument, based on the legislative history of the section, that Congress did not intend the second occurrence of 'costs' to include attorney's fees even though it did intend attorney's fees be included in the first provision for 'costs.' The Commission starts with the generally accepted premise that the government is exempt from liability for costs and attorney's fees except as specifically and unequivocally authorized by Congress. See United States v. Chemical Foundation, 272 U.S. 1, 20, 47 S.Ct. 1, 71 L.Ed. 131 (1926); Georg Jensen, Inc. v. United States, 185 F.Supp. 251, 253 (S.D.N.Y.1960); Aycrigg v. United States, 124 F.Supp. 416, 417-418 (N.D.Cal.1954); 28 U.S.C. 2412 (1970); 28 U.S.C. 2412(a) (1964). The Commission also points out that the term 'costs' has a well defined technical meaning that does not normally include attorney's fees. See, e.g., 28 U.S.C. 1920, 1923; Twentieth Century Fox Film Corp. v. Goldwyn, 328 F.2d 190, 222-224 (9th Cir. 1964). Thus, the Commission would have us decline to deviate from this technical meaning in the interpretation of the second reference to 'costs' since attorney's fees are not specifically and explicitly included.

6

The legislative history of Section 706(k) supports the Commission's contention that Congress did not necessarily intend 'costs' to have the same meaning each time it was used. Without belaboring the analysis, the legislative history indicates that the portion of Section 706(k) dealing with attorney's fees was added after the portion authorizing 'costs' against the government had been drafted. See 110 Cong.Rec. 12819 (1964). Thus, it can be persuasively argued that the drafters of the provision dealing with 'costs' assessed against the Commission were referring to the normal meaning of 'costs,' not to the special meaning of 'costs' including attorney's fees that was later used when the provision dealing with attorney's fees was added. The argument is strengthened by the fact that the Commission cannot recover attorney's fees: Congress might not, therefore, have intended the Commission to be liable for such fees.

7

As useful as legislative history is as an aid to statutory construction, however, it should not be used to torture the plain meaning of the words of the statute as finally enacted. Whatever the subjective intent of the drafters, which is far from clear, we are not persuaded that under these circumstances proper statutory construction calls for a change in the meaning of a technical word over the bare space of eleven intervening words. As Justice Frankfurter stated in Greenwood v. United States, 350 U.S. 366, 374, 79 S.Ct. 410, 415, 190 L.Ed. 412 (1956):

8

This is a case for applying the canon of construction of the wag who said, when the legislative history is doubtful, go to the statute.

9

We conclude that the plain meaning of Secton 706(k) authorizes an award of attorney's fees against the Commission. See United States v. Jacksonville Terminal Co., 316 F.Supp. 567, 623 (M.D.Fla.1970), rev'd on other grounds, 451 F.2d 418 (5th Cir. 1971), cert. denied 406 U.S. 906, 92 S.Ct. 1607, 31 L.Ed.2d 815 (1972).

10

Having concluded that we have the power under 706(k) to assess attorney's fees against the Commission, we must decide whether to exercise our discretion to do so. The Commission argues that the attorney's fees provision of 706(k) was designed to encourage private enforcement of the Act and to remove financial obstacles from the path of private litigants of limited means who could not otherwise afford to pursue their rights. See 110 Cong.Rec. 12724 (1964) (remarks of Sen. Humphrey). Although this is a factor to consider in exercising our discretion, we do not conclude that Xerox's ability to pay its own way is necessarily a bar to an award in its favor.

11

The Commission also argues that Section 706(k) authorizes an award only to the 'prevailing party.' Although Xerox 'prevailed' on this interlocutory appeal, it might still lose the principal case and thus not 'prevail.' We agree that litigation should not be dissected to the point that the losing party be permitted to recover attorney's fees connected with every procedural motion on which it prevails. But this interlocutory appeal is sufficiently significant and discrete to be treated as a separate unit. Thus, the fact that Xerox prevailed on this appeal qualifies it as a 'prevailing party' eligible for an award of attorney's fees connected with the appeal.

[*~1132]12

Having considered all the circumstances of the case, we exercise our discretion and award Xerox an attorney's fee of $3,000.