FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RONALD L. PORTER, 

Plaintiff-Appellant,

v.

DONALD C. WINTER, Secretary of No. 07-17120

the Department of the Navy; D.C. No.

ATTORNEY GENERAL OF THE UNITED  CV-06-00880-LJO

STATES; LAW OFFICE OF ELAINE W. OPINION WALLACE; U.S. DEPARTMENT OF

JUSTICE, OFFICE OF THE UNITED

STATES ATTORNEY,

Defendants-Appellees. 

Appeal from the United States District Court

for the Eastern District of California

Lawrence J. O’Neill, District Judge, Presiding

Argued and Submitted

September 17, 2009—San Francisco, California

Filed May 5, 2010

Before: Mary M. Schroeder, Stephen Reinhardt and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Reinhardt

6771
COUNSEL

Lizbeth Veronica West (argued), Charles L. Post, Weintraub

Genshlea Chediak Law Corporation, Sacramento, California,

for the plaintiff-appellant.

Lynn T. Ernce, Assistant U.S. Attorney, Sacramento, California, for the defendants-appellees.

OPINION

REINHARDT, Circuit Judge:

Ronald Porter, a former civilian employee of the Navy,

brought a complaint before the Equal Employment OpportuPORTER v. WINTER 6773
nity Commission (“EEOC”) alleging gender discrimination

and retaliation in violation of Title VII of the Civil Rights Act

of 1964. The EEOC found the Navy liable for retaliation, but

not gender discrimination. Porter sought to recover the attorney’s fees and costs he incurred in the Title VII administrative

proceedings, but the Navy awarded him only a fraction of the

amount he requested. After reviewing the Navy’s fee decision, the EEOC slightly increased the award.

Porter filed a complaint in district court challenging the

amount of attorney’s fees awarded to him in the Title VII

administrative proceedings. The district court dismissed the

complaint for lack of subject matter jurisdiction, reasoning

that it did not “have jurisdiction to adjudicate solely a claim

for attorney’s fees without a claim of a substantive violation

of Title VII.” Porter appeals that ruling. We have jurisdiction

under 28 U.S.C. § 1291 and review the district court’s decision de novo. Armstrong v. N. Mariana Islands, 576 F.3d 950,

954 n.4 (9th Cir. 2009).

We conclude that, under New York Gaslight Club, Inc. v.

Carey, 447 U.S. 54 (1980), federal courts have subject matter

jurisdiction over claims brought solely to recover attorney’s

fees incurred in Title VII administrative proceedings. Accordingly, we reverse.

ANALYSIS

A federal employee who is aggrieved by the Equal

Employment Opportunity Commission’s final disposition of

his Title VII complaint may file a civil action. 42 U.S.C.

§ 2000e-16(c). Three of the statutory provisions that govern

such actions are relevant to this appeal:

• 42 U.S.C. § 2000e-5(f)(1) permits an aggrieved

person to bring a civil action;

• 42 U.S.C. § 2000e-5(f)(3) provides that “[e]ach

United States district court . . . shall have juris6774 PORTER v. WINTER
diction of actions brought under this subchapter”;

and

• 42 U.S.C. § 2000e-5(k) provides that “[i]n any

action or proceeding under this subchapter the

court, in its discretion, may allow the prevailing

party . . . a reasonable attorney’s fee”.

See also id. § 2000e-16(d) (providing that civil actions

brought by federal employees are governed by 42 U.S.C.

§§ 2000e-5(f)-(k)).

The Supreme Court interpreted these provisions in New

York Gaslight Club, Inc. v. Carey, 447 U.S. 54 (1980). The

plaintiff in Carey filed a complaint in district court seeking

attorney’s fees, back pay, and other relief under Title VII. Id.

at 58. The parties later agreed to the dismissal of all claims

except the request for attorney’s fees, a portion of which was

based on expenses incurred in state administrative proceedings. Id. at 59. The question before the Court was thus

“whether, under Title VII of the Civil Rights Act of 1964, a

federal court may allow the prevailing party attorney’s fees

for legal services performed in prosecuting an employment

discrimination claim in state administrative and judicial proceedings that Title VII requires federal claimants to invoke.”

Id. at 56 (emphasis in original).

[1] The Court first addressed the plaintiff’s entitlement to

attorney’s fees, and concluded that “[t]he words of [42 U.S.C.

§ 2000e-5(k)] leave little doubt that fee awards are authorized

for legal work done in ‘proceedings’ other than court actions,”

including federal and state administrative proceedings. Carey,

447 U.S. at 61-62. The Court then addressed the proper forum

for seeking those fees, and concluded that Title VII authorizes

“a civil suit in federal court . . . solely to obtain an award of

PORTER v. WINTER 6775
attorney’s fees for legal work done in state and local proceedings.”1

Id. at 66 (emphasis added).

Notwithstanding Carey’s clear statement that Title VII

authorizes a civil suit in federal court “solely to obtain an

award of attorney’s fees,” 447 U.S. at 66, the Navy asserts

that Carey does not control the outcome of this case. First, it

argues that the cases are factually distinguishable because in

Carey, the plaintiff’s original complaint in federal court

asserted substantive Title VII claims in addition to the claim

for attorney’s fees. Here, in contrast, Porter’s original complaint in federal court asserted only a claim for attorney’s

fees. Two other circuits have considered the argument now

advanced by the Navy. The Fourth Circuit held that Carey

does not apply to a factual situation like the one now before

us, Chris v. Tenet, 221 F.3d 648, 654 (4th Cir. 2000), while

the Eight Circuit rejected the argument, now asserted by the

Navy, as “a distinction without a difference.” Jones v. American State Bank, 857 F.2d 494, 497 (8th Cir. 1988).

[2] We agree with the Eighth Circuit. The Carey majority

stated its conclusion in a manner that clearly applies to claims

originally brought solely to recover attorney’s fees incurred in

Title VII administrative proceedings:

Since it is clear that Congress intended to authorize

fee awards for work done in administrative proceedings, we must conclude that [42 U.S.C. § 2000e1This conclusion applies a fortiori to attorney’s fees for legal work done

in federal administrative proceedings, because the Court considered and

rejected the argument that the Title VII fee shifting provision authorized

fee awards “only for work done in federal administrative proceedings,

such as those before the EEOC, but not for state administrative or state

judicial proceedings.” Carey, 447 U.S. at 61-62 (footnote omitted). The

Court also noted that “throughout Title VII the word ‘proceeding,’ or its

plural form, is used to refer to all the different types of proceedings in

which the statute is enforced, state and federal, administrative and judicial.” Id. at 62-63. 

6776 PORTER v. WINTER
5(f)(1)’s] authorization of a civil suit in federal court

encompasses a suit solely to obtain an award of

attorney’s fees for legal work done in state and local

proceedings.

Carey, 447 U.S. at 66; see also id. at 71 (concluding that 42

U.S.C. §§ 2000e-5(f) and 2000e-5(k) “authorize a federalcourt action to recover an award of attorney’s fees”).

Although one justice objected that “[w]hether Congress

intended to authorize a separate federal action solely to

recover costs, including attorney’s fees, incurred in obtaining

administrative relief . . . is a question that is plainly not presented by this record,” id. at 71 (Stevens, J., concurring), none

of the six justices in the majority agreed with his contention.2

[3] The Navy also argues, however, that Carey has been

limited by the Supreme Court’s subsequent decision in North

Carolina Department of Transportation v. Crest Street Community Council, Inc., 479 U.S. 6 (1986). In Crest Street, the

issue before the Court was “whether a court may award attorney’s fees under the Civil Rights Attorney’s Fees Awards Act

of 1976, 42 U.S.C. § 1988, in a separate federal action not to

enforce any of the civil rights laws listed in § 1988, but solely

to recover attorney’s fees.” Id. at 7. In its analysis of that

issue, the Court first looked to the plain language of Section

1988, noting that it applies only to an “action or proceeding

to enforce a provision of . . . [T]itle VI of the Civil Rights Act

of 1964.” Id. at 12 (emphasis added; alterations in the original) (quoting 42 U.S.C. § 1988). The Court determined that a

suit brought solely to recover attorney’s fees was not an

action to enforce any of the civil rights statutes listed in Sec2The majority opinion in Carey was written by Justice Blackmun and

joined in full by Justices Brennan, Stewart, Marshall, and Powell. Chief

Justice Burger joined the majority opinion except as to footnote 6, in

which the Court “note[d] that if fees were authorized only when the complainant found an independent reason for suing in federal court under Title

VII, such a ground almost always could be found.” Carey, 447 U.S. at 66

n.6. 

PORTER v. WINTER 6777
tion 1988, and thus was not encompassed by the statutory language. Id. Next, the Court examined the legislative history of

Section 1988, finding it “replete with references to the

enforcement of the civil rights statutes in suits, through the

courts and by judicial process.” Id. (citations and internal quotation marks omitted). The Court concluded that “[t]he legislative history clearly envisions that attorney’s fees would be

awarded for proceedings only when those proceedings are

part of or followed by a lawsuit.” Id. at 14. Accordingly, the

Court held that Section 1988 did not authorize “a completely

independent action for attorney’s fees” in federal court. Id. at

16.

In Crest Street, the Court acknowledged that “dicta” in its

previous opinions, including Carey, pointed to a different

result than the one it reached. 479 U.S. at 13-15. The Court

determined that the policy considerations set forth in those

opinions could not overcome the plain language of Section

1988 or the clear intent expressed in its legislative history,

and that in any event, the concerns “may have been exaggerated.” Id. at 14. The Court expressly disavowed Carey’s suggestion “that today’s holding would create an incentive to file

protective lawsuits in order to obtain attorney’s fees.” Id. (citing Carey, 447 U.S. at 66 n.6).

Three other circuits have addressed the extent to which

Carey survives the Supreme Court’s decision in Crest Street.

Because Crest Street involved the interpretation of Section

1988, while Carey involved the interpretation of Title VII, the

Eighth and Tenth Circuits have held that Crest Street did not

in any manner modify or overrule Carey. Slade v. U.S. Postal

Service, 952 F.2d 357, 360-61 (10th Cir. 1991); Jones, 857

F.2d at 498 & n.10. Due in part to Crest Street’s “discussion

and disavowal of certain policy arguments underlying the

Carey decision,” however, the Fourth Circuit has held that

Title VII does not authorize an action in federal court that initially includes only a claim for attorney’s fees. Chris, 221

F.3d at 654-55.

6778 PORTER v. WINTER
[4] We agree with the Eighth and Tenth Circuits. Crest

Street did not modify or overrule Carey, and although both

cases construed fee shifting provisions, the two provisions utilize different statutory language and appear within different

statutory schemes. Crest Street based its interpretation of Section 1988 on the meaning of the phrase “to enforce,” which

is absent from Title VII’s fee shifting provision, and the legislative history of Section 1988, which is specific to that statute.

We are thus bound to follow Carey’s interpretation of Title

VII, notwithstanding Crest Street’s criticism of its reasoning.

“If a precedent of [the Supreme] Court has direct application

in a case, yet appears to rest on reasons rejected in some other

line of decisions, the Court of Appeals should follow the case

which directly controls, leaving to [the Supreme] Court the

prerogative of overruling its own decision.” Musladin v.

Lamarque, 555 F.3d 830, 837 (9th Cir. 2009) (alterations in

the original) (quoting Agostini v. Felton, 521 U.S. 203, 237

(1997)). “The fact that the Supreme Court has expressed some

ambivalence about its own jurisprudence does not give us the

power to change it.” United States v. Grisel, 488 F.3d 844,

847 (9th Cir. 2007) (en banc).

[5] Even if we were not bound by Carey, the structure of

Title VII and the plain language of its fee shifting provision

would compel us to reach the same result. Through Title VII,

Congress “has sought to coordinate the actions of state agencies, federal agencies, state courts and federal courts.” Jones,

857 F.2d at 497. The purpose of this integrated system of

administrative and judicial remedies is to provide complete

relief to victims of employment discrimination. Albemarle

Paper Co. v. Moody, 422 U.S. 405, 418 (1975). “One aspect

of complete relief is an award of attorney’s fees,” Carey, 447

U.S. at 67-68, and the “ ‘ultimate authority’ to secure compliance with Title VII resides in the federal courts.” Id. at 64

(quoting Alexander v. Gardner-Denver Co., 415 U.S. 36, 44-

45 (1974)); accord Slade, 952 F.2d at 361; Jones, 857 F.2d

at 497-98. Consistent with that structure, Congress enacted a

broadly-worded fee shifting provision that authorizes courts

PORTER v. WINTER 6779
to award attorney’s fees to the prevailing party “[i]n any

action or proceeding under this subchapter.” 42 U.S.C.

§ 2000e-5(k) (emphasis added). Nothing in the language of

that provision suggests that federal courts may award attorney’s fees only to claimants who are compelled to seek other

forms of relief as well in the federal courts, and imposing

such a limitation would be inconsistent with the responsibility

of federal courts to ensure that Title VII claimants ultimately

receive complete relief for their injuries.

[6] Because 42 U.S.C. §§ 2000e-5(f)(1) and 2000e-5(k)

authorize a civil suit in federal court solely to recover attorney’s fees for legal work done in administrative proceedings,

Porter’s claim qualifies as an “action[ ] brought under this

subchapter” for purposes of Title VII’s jurisdictional grant. 42

U.S.C. § 2000e-5(f)(3). Accordingly, the district court erred

in concluding that it lacked subject matter jurisdiction over

Porter’s claim.

REVERSED and REMANDED.

6780 PORTER v. WINTER