Authority of USDA to Award Monetary Relief

for Discrimination

T h e D e p artm e n t o f A g ricu ltu re has authority to aw ard m o n e ta ry relief, atto rn e y s’ fees, and costs to a 

p erso n w ho has b e en d iscrim in ated a g ain st in a p ro g ram con d u cted by U SD A if a court could 

a w ard such re lie f in an a ctio n by the a g g riev ed person T h a t q uestion is controlled by w h eth er the 

a n ti-d is c n m in a tio n p ro v isio n s o f the a p p licab le civil rig h ts statute a p p ly to federal agencies, and if 

so, w h e th e r the statu te w aiv es the sovereign im m unity o f the U nited States against im position o f 

su ch relief.

T h e a n ti-d isc rim in a tio n p ro v isio n s o f Title V I o f the C ivil R ig h ts A ct o f 1964 do not apply to federal 

a g en c ie s. S o m e an ti-d isc rim in a tio n pro v isio n s in eac h o f the other civil rights statu tes add ressed in 

the o p in io n do ap p ly to federal agencies, b u t only o n e o f the statutes, the E qual C red it O pportunity 

A ct, w aiv es so v ereig n im m u n ity with re sp e c t to m o n e ta ry relief, authorizing im position o f c o m p e n ­

sato ry dam ag es. T h e F a ir H ousing Act a n d the R eh ab ilitatio n A ct d o not w aive im m unity a gainst 

m o n e ta ry re lie f A tto rn e y s’ fees and c o sts m ay b e a w ard ed pursuant to the w aiv er o f im m unity 

c o n ta in ed in the E qual A ccess to Justice A c t

A p r il 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 i c u l t u r e

This memorandum 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 (“USDA”) has determined have been discriminated against as applicants for, or participants in, USDA conducted program s.1 You have informed us 

that the statutes authorizing these programs 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 award monetary relief, attorneys’ fees, and costs 

if a court could award such relief in an action by the aggrieved person. Accordingly, the dispositive questions regarding your inquiry are whether the antidiscrimination provisions of the individual civil rights statutes apply to federal 

agencies, and if so, whether the statutes waive the sovereign immunity of the 

United States against imposition of such relief. In considering your request, we 

have reviewed Title VI of the Civil Rights Act of 1964, the Fair Housing Act, the 

Rehabilitation Act, and the Equal Credit Opportunity Act. With respect to attorneys’ fees and costs, we have also reviewed the Equal Access to Justice Act.

1 See Letter for Walter Dellinger, Acting Assistant Attorney General, Office of Legal Counsel, from James 

S. G illiland, General Counsel, Department of Agriculture (Oct 8, 1993).

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A uthority o f USDA to Aw ard M onetary R elief fo r Discrimination

We conclude that the anti-discrimination provisions of Title VI do not apply to 

federal agencies. Some anti-discrimination provisions in each of 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 monetary 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 of immunity 

contained in the Equal Access to Justice Act.

I. BA CK 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 appropriations 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 aggrieved 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 permitted under Title VII.” Equal Employment Opportunity Commission, 62 Comp. 

Gen. 239, 244-45 (1983).3 The Comptroller General has come to the same conclusion with respect to the Age Discrimination in Employment Act of 1967 

(“ADEA”). Albert D. Parker, 64 Comp. Gen. 349, 352 (1985). The Comptroller 

General has applied this appropriations law limitation directly to USDA. See Nina

R. M athews, B-237615, 1990 WL 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 See a h o 31 U S C. § 1341(a)(1) (A nti-D eficiency Act)

1 W aiving sovereign immunity, Title VII expressly authorizes awards o f back pay against federal agencies A provision in Title VII entitled “Em ploym ent by Federal G overnm ent,'’ 42 U S C 2 0 0 0 e -l6 , prohibits discrim ination by federal agencies (subsec (a)); authorizes a civil action in which ‘‘the head of the 

departm ent, agency, or unit . . shall be the defendant" (subsec (c)), and incorporates the rem edies provisions o f 42 U.S.C § 2000e-5 for such civil actions (subsec (d)) A wards o f back pay are expressly authorized by 42 U.S.C § 2000e-5(g) Subsequent to issuance of the Com ptroller General opinions cited in the 

text, Title VII was am ended to provide for com pensator)’ dam age awards against all parties, including federal 

agencies, and punitive dam age awards against all non-governm ent parties. 42 U.S C § 19 8 1a(b)

4 The sam e appropriations limitation exists for settlem ents o f litigation by the D epartm ent of Justice as 

exists for settlem ents o f adm inistrative proceedings by agencies. This Office has previously opined that the 

perm anent appropriation established pursuant to 3 1 U.S.C. & 1304 (“the judgm ent fund”) is available ‘‘for the 

paym ent of non-tort settlem ents authorized by the A ttorney General or his designee, whose paym ent is ‘not

53
Opinions o f the Office o f Legal Counsel

Therefore, the question you have raised regarding the Secretary’s authority to 

award monetary relief in administrative proceedings turns on whether the various 

civil rights statutes authorize the award 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 Energy v. O hio, 503 U.S. 607, 613-14

(1992) (Energy Department conceded it was subject to procedural requirements of 

Clean W ater Act and Resource Conservation and Recovery Act and liable for coercive fines under those statutes; therefore, only question presented was whether 

the statutes waived sovereign immunity from liability for punitive fines).5

The first step of the analysis requires application of conventional standards of 

statutory interpretation. The second step, however, requires application of a special, “unequivocal expression” interpretive standard that the Supreme Court has 

established to govern determinations as to whether a statute waives sovereign immunity — either the inherent constitutional immunity of the federal government or 

the Eleventh Amendment immunity o f the States:

W aivers of the Government’s sovereign immunity, to be effective, 

must be unequivocally expressed. . . . [T]he Government’s consent 

to be sued must be construed strictly in favor of the sovereign, and 

not enlarge[d] beyond what the language requires .... As in the 

Eleventh Amendment context, the unequivocal expression of elimination 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 committee report.

United States v. N ordic 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 immunity must be ‘unequivocally expressed’ in the statutory text.” 

United States v. Idaho, ex rel. Dir., D e p ’t. o f W ater Resources, 508 U.S. 1, 6

(1993).

The methodology required by this “unequivocal expression” standard may be 

illustrated by the decision in Nordic Village. Seven Justices joined in an opinion 

for the Court that found that although a provision of the Bankruptcy Code could be

otherw ise provided for,’ i f and onlv i f the cause o f action that gave rise to the settlem ent could have resulted

in a fin a l m onev ju d g m e n t.” Availability o f Judgm ent Fund in C ases N ot Involving a M onev Judgm ent

Claim, 13 O p O .L C. 98, 104 (1989) (emphasis added) (quoting 31 U S.C. § 1304).

5 T he C ourt in D epartm ent o f Energy expressly identified the fundam ental difference between the substantive coverage o f a statute and liability for violations o f the statute, stating that the Clean W ater Act contains "separate statutory recognition of three m anifestations o f governm ental power to which the United 

Stales is subjected: substantive and procedural requirem ents, adm inistrative authority; and ‘process and 

sanctions, w hether ‘enforced’ in courts or otherw ise. Substantive requirem ents are thus distinguished from 

judicial process." 503 U.S. at 623.

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Authority o f USDA to A w ard M onetary R elief fo r Discrimination

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 determine which was the better reading of 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 liability 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 of the Civil Rights Act of 

1964, the Fair Housing Act, the Rehabilitation Act, and the Equal Credit Opportunity Act. We 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 extent. 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 Opportunity Act. The final section of the memorandum discusses attorneys’ fees and costs.

II. TITLE VI

Title VI of the Civil Rights Act of 1964 (“Title VI”), 42 U.S.C. § 2000d, provides 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 Applying us rule that waivers o f sovereign immunity must be unequivocally expressed in the statutory 

text, the Court declined to consider the legislative history in an attempt to resolve the am biguity. Id.

7 See Letters from Roberta Achtenberg, A ssistant Secretary for Fair H ousing and Equal Opportunity, and 

Nelson Diaz, General Counsel, U S D epartm ent o f Housing And Urban D evelopm ent (Nov 15, 1993), 

Elaine R. Jones, Director-Counsel, N A A CP Legal Defense and Educational Fund, Inc. (Oct 28, 1993); Bill 

Lann Lee, W estern Regional Counsel, NAACP Legal Defense and Educational Fund, Inc. (Nov 12, 1993, 

Nov 24, 1993); Les M endelsohn, Esq , Speiser, Krause, M adole & M endelsohn (Nov 4, 1993), D avid H 

H am s, J r , Executive Director, Land Loss Prevention Project (Nov. 5, 1993, Nov 8, 1993).

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O pinions o f the O ffice o f Legal Counsel

subjected to discrimination under any program or activity receiving Federal financial assistance.” By its terms, this anti-discrimination provision does not apply to 

programs 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 governments, but contains no reference to the federal government. 

The courts have held that Title VI “was 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'.” Soberal-Perez v. H eckler, 717 F.2d 36, 38 

(2d Cir. 1983), cert, den ied, 466 U.S. 929 (1984); Fagan v. United States Small

Business A dm in., 783 F. Supp. 1455, 1465 n.10 (Title VI inapplicable to SBA direct loan program), a jf’d, 19 F.3d 684 (D.C. Cir. 1992).

In light of our conclusion that the discrimination prohibition of Title VI does 

not apply to federal agencies, there is no need to consider whether Title VI waives 

sovereign immunity.

III. THE FAIR HOUSING A C T

A.

The 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 

discrimination in the sale or rental o f housing set forth in section 3604 . . . shall 

apply” to “dwellings owned or operated by the Federal Government.” Thus, a federal 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 discrimination 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 

government agencies in the definition of “person,” see § 3602(d), and unless otherwise specified, the term “person” in a statute does not include the federal government or a federal agency. United States v. United M ine Workers, 330 U.S. 258,

8 T he Fair H ousing Act was originally enacted as Title VIII of the C ivil Rights Act o f 1968, Pub L. No. 

90-284, 82 Stat. 73 (1968).

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A uthority o f USDA to Aw ard M onetary R elie f fo r Discrimination

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 monetary liability.9

B.

W hether federal agencies are subject to monetary liability for violations of 

§ 3604 of the Fair Housing Act turns on application of the “unequivocal expression” standard for waivers of sovereign immunity discussed in section I of this 

memorandum. We conclude that the Act does not waive sovereign immunity because 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. Subsection (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 same extent as a private person.”

We 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. However, § 3613 does not say so and the Supreme Court has held that subjecting a governmental entity to the substantive or procedural requirements of a statute does not 

necessarily mean that sovereign immunity has been waived or abrogated with respect to claims for damages. See, e.g., United States D e p ’t o f Energy v. Ohio, 503 

U.S. 607 (1992) (federal agencies subject to procedural requirements of Clean 

Water 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, however, that these sections do not appear to be directed at 

governm ent activities. Section 3606 makes it unlawful to discrim inate with respect to “access to or m em bership or participation in any m ultiple-listing service, real estate brokers' organization or other service, organization, or facility relating to the business of selling or renting dw ellings.’' Section 3617 makes it unlawful to 

■‘coerce, intim idate, threaten, or interfere with any person" with respect to the exercise of rights protected by 

!)§ 3603-3606 o f the Act.

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Opinions o f the Office o f Legal Counsel

for punitive fines); A tascadero State Hosp. v. Scanlon, 473 U.S. 234, 244-46 

(1985) (States subject to section 504 of Rehabilitation Act but immune from actions for monetary relief); Employees 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 away.” Id. at 285.

The only additional relevant language in § 3613 is subsection (c)(2), which 

authorizes the award of 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 remains whether that is a sufficient expression 

of a waiver of 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 affirmative. We note, however, that the Supreme Court has declined to give 

such a reading to an attorneys’ fees provision in a State sovereign immunity context. See Dellmuth v. Muth, 491 U.S. 223, 231 (1989) (stating in decision holding 

State sovereign immunity not abrogated by Education of the Handicapped Act: 

“The 1986 amendment to the EHA deals only with attorney’s fees, and does not 

alter or speak to what 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 entail waiver o f immunity for damages and other monetary relief. Just because the 

United States is subject to the cause of action does not necessarily mean it is subject to the full range of remedies that are set forth in the statute. These remedies 

include not only compensatory and punitive damages, but also a “permanent or 

temporary 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 he Suprem e C ourt has stated that the standard for establishing a waiver o f the federal governm ent’s 

sovereign im m unity is substantially the same as the standard for finding congressional abrogation of state 

Eleventh A m endm ent im m unity See Nordic Village, 503 U S at 37. Eleventh A m endm ent cases like A tascadero and M issouri P ublic H ealth D ep't are therefore helpful in our analysis

58
Authority o f USDA to Aw ard M onetary R elief fo r Discrimination

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 Administrative Procedure Act (the ”APA”), 5 U.S.C. §§ 701-706 which provides that

[a]n action in a court of the United States seeking relief other than 

money damages and stating a claim that an agency or an officer or 

employee thereof acted or failed to act in an official capacity or under 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. § 702.11 “[T]he caselaw of [the Court of Appeals for the District of Columbia 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 Supreme 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

Nordic Village, 503 U.S. at 37 (when a provision is subject to more than one plausible interpretation, the “reading imposing monetary liability on the Government is 

not ‘unambiguous’ and therefore should not be adopted”).14

11 The legislative history of this APA provision indicates that us purpose was “to eliminate the defense of 

sovereign im m unity with respect to any action m a court of the United States seeking relief other than money 

damages and based on the assertion of unlawful official action by a Federal officer.’* S Rep. No 94-996, at

2 (1976) S e e a ls o H .R Rep. No 94-1656, at 9 ( 1976), reprinted m 1976 USCCAN 6121, 6129 C‘[T]he 

time (has] now com e to eliminate 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 generally Kenneth C Davis, A dm inistrative Law Treatise § 23 19, at 192 (2d ed. 1983) (“The meaning o f the 1976 legislation is entirely clear 

on its face, and that m eaning is fully corroborated by the legislative history. Thai meaning is very simple. 

Sovereign im m unity in suits for relief other than money dam ages is no longer a defense.' ).

12 Alabama v Buw sher, 734 F Supp 525, 533 (D D C. 1990), afj'd, 935 F.2d 332 (D C C ir 1991), t e n

denied, 502 U S 981 (1991) (quoting P Bator, P M ishkin, D. M ellzer & D. Shapiro, H art and Wech.sler's

The Federal Courts and The Federal System 1154 (3d ed. 1988), and citing N ational A.s.s’n o f Counties v

Baker, 842 F 2d 369, 373 (D C . Cir. 19S8), cert denied, 488 U S 1005 (1989)), Schnapper v Foley, 667 

F 2d 102, 108 (D .C C ir 1981), cert denied, 455 U S 948 (1982), Sea-land Service, Inc v Alaska R.R , 659 

F.2d 243, 244 (D C C ir 1981), cert denied, 455 U S. 919 (1982)

n See, e.g., Specter v. G arrett, 995 r.2 d 404, 410 (3d Cir 1993) (“the w aiver o f sovereign immunity 

contained in [the APA] is not limited to suits brought under the A PA"), Red Lake Band oj Chippewa Indians

v Barlow, 846 F.2d 474, 476 (8th Cir 1988) C‘[T]he w aiver of sovereign im m unity contained in [the APA] 

is not dependent on application of the procedures and review standards o f the APA It is dependent on the 

suit against the governm ent being one for non-m onetary re lie f")

14 Another alternative interpretation may also be possible Because the United States may intervene in 

private actions brought under § 3613 in order to seek broader relief, .see 42 U S.C § 3613(e), it is possible 

that the United States could incur liability for attorneys' fees and costs without being a defendant. W e find

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O pinions o f the O ffice o f Legal Counsel

We therefore conclude that the text of 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 of the text and legislative history of the Fair Housing Act when it was originally enacted as Title VIII of 

the Civil Rights Act of 1968 (“Title VIII”), supra, and of the 1988 amendments to 

the Fair Housing Act (the “ 1988 Amendments”), 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 specifically intended to waive sovereign immunity.15

As discussed above, the language in the Fair Housing Act that provides the most 

specific basis for an argument 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 Act’s (Title VIII’s) 

attorneys’ fees provision, which authorized the courts to “award to the plaintiff . . . 

reasonable attorney fees in the case of a prevailing plaintiff: Provided, [t]hat the 

said plaintiff in the opinion of the court is not financially able to assume said attorney’s fees.” Pub. L. No. 90-284, § 812(c), 82 Stat. 89, 107 (1968). As with the 

current version of the Act, the original provision on enforcement by private persons authorized an award of 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 interpretation to be less plausible than the non-m onetary relief interpretation because the latter gives 

effect to provisions in the sam e subsection, w hich is devoted to *‘[r]elief which may be g ran ted /’ 42 U.S.C. 

§ 3613(c), w hile the form er requires reading together separate subsections and inferring that Congress may 

have contem plated in subsection (c) that interventions by the A ttorney General under subsection (e), in cases 

where she “certifies that the case is of general public im portance” and seeks broader relief, m ight result in 

awards o f attorneys fees and costs against the United Stales

15 Justice Scalia criticized this methodology in Pennsylvania v. Union Gas Co., 491 U.S. at 29-30 (Scalia, 

J., concurring in part and dissenting in part) (“T hat m ethodology is appropriate if one assumes that the 

task o f a court o f law is to plum b the intent o f the particular C ongress that enacted a particular provision. 

That m ethodology is not m ine . . It is o u r task . . not to enter the minds of the M embers o f Congress 

. . but rather to give fair and reasonable m eaning to the text o f the United States Code, adopted by various 

C ongresses at various tim es.") N otw ithstanding this criticism , we believe the m ethodology is appropriate 

here W hatever the merit o f Justice Scalia’s em phasis of code m eaning over congressional intent in other 

contexts, we do not think that approach is required or desirable where the question presented is w hether 

sovereign im m unity has been w aived and m ore than one statutory enactm ent is involved. We note that no 

other Justice expressed agreem ent with Justice S calia’s statem ent in Union Gas. M oreover, the C ourt's 

m ajority in D ellm uth used this approach S ee 491 U.S. at 227-32

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Authority o f USDA to A w ard M onetary R elief fo r D iscrimination

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 private cause of action and authorizing awards of attorneys’ fees. The 1988 Amendments 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 of the Committee on the Judiciary of the House of Representatives. H.R. Rep. No. 100-711 (1988), reprinted 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, reprinted 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] attorney’s fee language in title VIII closer to the model used in other civil rights laws.” 

Id. at 17, reprinted 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” limitation on the award of attorneys’ fees. It also indicates an intent to conform the language of the attorneys’ fees provision to that in other civil rights laws.18 There is 

no discussion whatsoever of actions against the United States, much less any refer16 Although legislative history cannot be relied upon to provide the “ unequivocal expression” the Supreme Court requires, N ordic Village, 503 U S at 37, we believe it is perm issible to cite legislative history to 

reinforce a text-based conclusion that a statute does not waive sovereign im m unity. Confidence in a conclusion based on the text can be strengthened where the legislative history reveals no evidence o f intent to 

waive sovereign im m unity

17 In the discussion o f section 813(c) in the section-by-section portion o f the report, the com m ittee focused on rem oving the punitive dam ages limitation. The following is the entirety of the discussion o f section 

813(c)

Section 813(c) provides for the types o f relief a court may grant This section is intended to continue the types of relief that are provided undercurrent law, but rem oves the $1000 lim itation on 

the award o f punitive dam ages The C om m ittee believes that the lim it on punitive dam ages 

served as a m ajor im pedim ent to im posing an effective deterrent on violators and a disincentive 

for private persons to bring suits under existing law The C om m ittee intends that courts be able 

to award all rem edies provided under this section. As in Section 812(o), the court may also 

award attorney's fees and costs.

H R. Rep. No. 100-711, at 39-40, reprinted m 1988 U.S.C C .A .N at 2200-01.

18 For exam ple, the attorneys' fees provision in Title VII o f the Civil Rights of 1964 (em ploym ent discrim ination) contains the following sim ilar language concerning the United States. “[T]he court . . . may 

allow the prevailing party, other than . . . the United States, a reasonable attorney’s fee (including expert 

fees) as part of the costs, and . . the United Slates shall be liable for costs the same as a private person.” 

42 U S.C. § 2000e-5(k)

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ence to an intent to waive sovereign immunity or to establish monetary liability for 

the United States.

Given the focused nature of the 1988 Amendments 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. At most, the amendments can be read 

to waive sovereign immunity against awards of attorneys’ fees. Reading into the 

amendment a broader waiver would be impermissible under the interpretative 

method required by the Supreme Court 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 Dellmuth v. Muth, 491 U.S. 

223 (1989), the Supreme Court discussed whether the Education of the Handicapped Act (“EHA”), which, like the Fair Housing Act, had been amended to impose 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 comprehensive scheme to assure that handicapped children 

may receive a free public education appropriate to their needs. To achieve these 

ends, the Act mandates certain procedural requirements for participating state and 

local educational agencies.” Id. at 225. In Dellmuth, the Supreme Court reversed 

a decision of 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 provisions. The court first cited the Act’s preamble, which states Congress’ finding that “it is in the national interest that the Federal 

government assist State and local efforts to provide programs to 

meet the education needs of handicapped children in order to assure 

equal protection of the law.” Second, and most important for the 

Court of Appeals, was the Act’s judicial review provision, which 

permits parties aggrieved by the administrative process to “bring a 

civil action . . . in any State court of competent jurisdiction or in a 

district court of the United States without regard to the amount in 

controversy.” Finally, the Court of Appeals pointed to a 1986 

amendment to the EHA, which states that the Act’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 of the action or proceeding or there was a violation

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of this section.” In the view of the Court of Appeals, this amendment 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 Court’s rejection of the Court of Appeals’ 

analysis, because it can be applied directly to the Fair Housing Act:

We 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 whatsoever to either the Eleventh Amendment or the States’ sovereign immunity. 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 Act’s preamble simply has nothing to do with the States’ sovereign immunity. The 1986 amendment to the EHA deals only with 

attorney’s fees, and does not alter or speak to what parties are subject to suit. . . . Finally, [the private cause of action provision] provides judicial review for aggrieved parties, but in no way intimates 

that the States’ sovereign immunity is abrogated. As we made plain 

in Atascadero, “[a] general authorization for suit in federal court 

is not the kind of unequivocal statutory language sufficient to abrogate the Eleventh Amendment.”

. . . We recognize that the EHA’s frequent reference to the Slates, 

and its delineation of the States’ important role in securing an appropriate education for handicapped children, make the States, 

along with local agencies, logical defendants in suits alleging violations of the EHA. This statutory structure lends force to the inference that the States were intended to be subject to dam ages actions

fo r violations o f the EHA. But such a perm issible inference, whatever its logical force, would remain ju st that: a perm issible inference. It would not be the unequivocal declaration which . . . is

necessary before we will determine that Congress intended to exercise 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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Housing Act is focused on the private sector and has relatively minor relevance to 

the activities of federal agencies. Nonetheless, the Supreme Court refused to find 

that the EHA waived sovereign immunity, relying on specific points that are directly applicable to the Fair Housing Act: 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 expression”; and that legitimate inferences that Congress intended a damages cause of 

action are not “unequivocal expressions.”19

The Department o f Housing and Urban Development (“HUD”) has submitted a 

letter stating its conclusion that “a federal agency . . . may be required to pay damages and other relief . . . [for] violations of the [Fair Housing Act].”20 HUD relies 

principally on the analysis contained in Doe v. Attorney G eneral o f the United

States, 941 F.2d 780 (9th Cir. 1991), which held that the Rehabilitation Act waives 

the sovereign immunity of the United States against damage awards. As discussed 

in the next section of this memorandum, we believe that Doe used a method of 

statutory interpretation that is impermissible under the Supreme Court precedents 

and that the case was incorrectly decided.

IV. REHABILITATION ACT

W e reach fundamentally the same conclusions with respect to the Rehabilitation 

Act o f 1973, as amended (the “Rehabilitation Act”), 29 U.S.C. §§ 794-794c, as we 

have reached with respect to the Fair Housing Act.

A.

Section 504 of 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 reason 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 he C o u rt's opinton in D ellm uth relies heavily on A tascadero State Hosp. v Scanlon, 473 U S 234 

(1985). See 491 U.S. at 227, 230-32 A tascadero also strongly supports the conclusion that the Fair Housing Act does not waive sovereign immunity fo r monetary relief Atascadero concerned the discrim ination 

provisions o f the R ehabilitation Act of 1973 an d is discussed in detail in the next section of this m em orandum, w hich addresses that act. Atascadero held that the Rehabilitation Act does not abrogate the sovereign 

im m unity o f the States We conclude in the next section that the analysis in that case should apply fully to 

actions against the federal governm ent The c ase is significant for purposes of the discussion in this section 

because the R ehabilitation Act has a structure that is sim ilar to the Fair Housing Act

L etter for W alter D ellinger, Assistant A ttorney General, O ffice of Legal Counsel, from Roberta Achtenberg, A ssistant Secretary for Fair Housing and Equal O pportunity, and N elson Diaz, General Counsel at I 

(Nov 15, 1993).

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any program or activity conducted by any Executive agency or by

the United States Postal Service.

Id. § 794(a) (emphasis added). The italicized language, which was added to section 504 in 1978,21 expressly subjects federal agencies to the discrimination prohibitions 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 prohibitions. 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 assistance under section 794 of 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 attorney’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 legislative enactments that bear on the sovereign immunity question: the original discrimination prohibition and a later amendment that can be argued to effect a waiver 

of immunity against imposition of 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 amendments: while the Fair Housing Act amendments of 1988 merely made relatively 

minor changes to an existing cause of action and modified an attorneys’ fees provision, 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 other provision o f section 505 (29 U S C <) 794a(a)( I )) concerns discrim ination in federal

employm ent, w hich we do not understand to be covered by your opinion request

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However, after analyzing the Rehabilitation Act enactments under the Supreme 

Court’s “unequivocal expression” standard, we conclude that there is no waiver of 

sovereign immunity for monetary relief. There is no fundamental difference between the effect of the Rehabilitation Act enactments and the effect of the Fair 

Housing Act enactments. In both cases, there is no express language authorizing 

actions against the United States for damages or other monetary relief and it is reasonable to read the cause of action and attorneys’ fees provisions as allowing actions against the United States for injunctive relief pursuant to the waiver of 

sovereign immunity for such relief contained in the Administrative Procedure Act. 

As the Supreme Court made clear in N ordic Village, where a plausible reading is 

available that does not authorize monetary relief, “a reading imposing monetary 

liability on the Government is not ‘unambiguous’ and therefore should not be 

adopted.” 503 U.S. at 37.24

C.

Our 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 tascadero 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 Amendment sovereign immunity against imposition of 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 discrimination 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 of unequivocal statutory language sufficient to abrogate the Eleventh Amendment. When Congress 

chooses to subject the States to federal jurisdiction, it must do so 

specifically. Accordingly, we hold that the Rehabilitation Act does 

not abrogate the Eleventh Amendment bar to suits against the 

States.

"4 As we explained in the course of our consideration o f the Fair Housing Act, we believe it is perm issible 

to cite legislative history 10 reinforce a text-based conclusion that a statute does not w aive sovereign im m unity W e have review ed the legislative history of the R ehabilitation A ct am endm ents of 1978 and have 

found, as w as the case with respect to the Fair Housing Act am endm ents o f 1988, that it does not include any 

consideration of the subjects of sovereign im m unity or o f establishing monetary liability for the United 

Slates. Thus, it is consistent with our conclusion that those am endm ents do not w aive sovereign immunity.

23 A tascadero established the following standard '‘C ongress may abrogate the S tates’ constitutionally

secured im m unity from suit in federal court only by m aking its intention unm istakably clear in the language

of the statute.’’ 473 U S at 242.

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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 

government’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. Attorney G eneral o f the United

States, 941 F.2d 780 (1991). We believe, however, that Doe was incorrectly decided. First, the Ninth Circuit’s analytical approach was inconsistent with the Supreme Court’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 Whether the Government has Waived Sovereign Immunity,” 941 F.2d at 787, the Ninth Circuit incorrectly 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 of the 

factors for implying a private right of action under Cort v. Ash, 422 U.S. 66, 78 

(1975), with an additional sovereign immunity gloss that “only explicit congressional intent in the statutory language and history will suffice” for implying a private right of action against the United States. Doe, 941 F.2d at 788.

In addition, the Ninth Circuit’s analysis of the Rehabilitation Act is unpersuasive. The court’s conclusion was as follows:

In amending section 504, Congress made certain that federal agencies would be liable for violations of the statute. Congress’s insertion of federal agencies in the pre-existing clause subjecting others 

to liability and its broad-brush remedy provision indicate that Congress intended that there be no distinction among section 504 defendants.

26 Responding (o the Suprem e C ourt's decision in Atascadero, Congress passed legislation expressly 

abrogating the sovereign immunity o f the Slates under the R ehabilitation Act and other civil rights statutes 

Pub L No 99-506, § 1003, 100 Stat 1807, 1845 (1986). That legislation contained no provisions bearing 

on the sovereign immunity of the United States

27 The only treatm ent of the federal governm ent in section 505 that is different from the treatm ent of the 

States (other than the obvious difference that federal agencies are not recipients of federal assistance) is that 

the attorneys fees provision (paragraph (b)) does not allow the United States as a prevailing party to recover 

attorneys' fees That exception says nothing, of course, about the liability of the United States for dam ages 

or other monetary relief, and the fact that the United States may be subject to attorneys fees awards does not 

waive sovereign immunity for dam ages and other kinds of monetary relief.

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Id. at 794. That conclusion is incorrect in two fundamental respects. First, the 

addition of federal agencies to section 504 was not to a “clause subjecting others to 

lia b ility'' but rather to a clause that imposed a non-discrimination substantive requirement 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 Supreme Court has rejected the view that the “broad-brush remedy provision [section 

505] indicate[s] that Congress intended that there be no distinction among section 

504 defendants.” Id. As discussed above, the Supreme Court opined in A tascadero State H ospital v. Scanlon that there are indeed distinctions to be made 

among section 504 defendants, holding that

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 of unequivocal statutory language sufficient to abrogate the Eleventh Amendment. When 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 tascadero requiring an unequivocal specific 

expression of intent to waive sovereign immunity is equally applicable in the context of the federal government. N ordic Village, 503 U.S. at 37.

V. EQUAL CREDIT OPPORTUNITY A C T

In contrast to our preceding conclusions, we conclude that the Equal Credit Opportunity Act (the “Credit Act”), 15 U.S.C. §§ 169]-1691 f, partially waives the 

sovereign immunity of the United States against the imposition of monetary relief, 

by authorizing an award of compensatory damages. Although this conclusion is 

not completely free from doubt because it is possible that the Supreme Court 

would require a more explicit statement of waiver, we reach this conclusion because we can find no reasonable explanation for a provision exempting all government creditors from liability for punitive damages other than that the provision 

recognizes that government creditors are liable for compensatory damages. There 

is no comparable provision in any of 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 continua68
Authority o f USDA to Aw ard M onetary R elief fo r Discrimination

tion of credit; or any assignee of an original creditor who participates in the decision to extend, renew, or continue credit.” Id. § 1691a(e). For purposes of the 

Act, a “person” is “a natural person, a corporation, governm ent or governm ental

subdivision or 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 references is that the federal government is included, because the language is unrestricted and there is no language suggesting any different treatment for different 

levels of 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. Neither the statute 

nor the legislative history contain any such suggestion.

Our conclusion that the federal government is subject to the discrimination provisions 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 of the 

Consumer Credit Protection Act.28 Statutes addressing the same subject matter — 

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 defined 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 provisions of TILA:

[N]o civil or criminal penalty provided under this subchapter for 

any violation thereof may be imposed upon the United States or any 

department or agency thereof, or upon any State or political subdivision thereof, or any agency of any State of political subdivision.

211 TILA was enacted in 1968 as title I of the C onsum er C redit Protection Act, Pub. L. No 90-321, 82 Stat. 

146, and the C redit Act was added to the C onsum er Credit Protection Act as title VII in 1974, Pub. L. No. 

93-495, tit V, 88 Stat. 1500, 1521.

29 See 2B Norman J Singer, Sutherland Statutory C onstruction § 51.02, at 121 (5th ed 1992) (“It is 

assum ed that w henever the legislature enacts a provision it has in mind previous statutes relating to the same 

subject m atter In the absence of any express repeal or am endm ent, the new provision is presum ed in accord 

with the legislative policy em bodied in those prior statutes Thus, they all should be construed together '*).

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Id. § 1612(b). It is reasonable to assume that when Congress defined “person” in 

the Credit Act to include a “government, governmental subdivision or agency,” it 

intended those terms to have the same scope as the identical terms used in the previously enacted TILA.30

B.

Of course, as discussed in prior sections of this memorandum, the fact that federal 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 imposition o f monetary liability for violation of such requirements. The Credit Act sovereign immunity question is not a simple 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 below, we find there has been a waiver because the Act contains a provision that indirectly, but in our view unequivocally, indicates that the United States may be 

required to pay compensatory damages.

Section 1691e of 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 requirement imposed under this subchapter shall be liable to the 

aggrieved applicant for any actual damages sustained by such applicant acting either in an individual capacity or as a member of a class.” Under subsection (b), all 

creditors except governmental 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 attorneys’ 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 determined 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. Coming immediately after a provision 

(subsection (a)) that states that all creditors are liable for compensatory damages, a 

provision exempting government creditors from liability for punitive damages necessarily implies a recognition that government creditors are otherwise liable for 

damages under the Act and remain liable for compensatory damages under the preceding section, which contains no such limitation. “[A] limitation of liability is

,0 See id § 51 02, at 122 ('‘Unless the context indicates otherw ise, words or phrases in a provision that 

were used in a prioi act pertaining to the sam e subject m atter will be construed in the sam e sense ")

11 “ Upon application by an aggrieved applicant, the [court] m ay grant such equitable and declaratory relief 

as is necessary to enforce the requirements im posed under this su b ch ap ter.' 15USC § 16 9 1 e(c)

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nonsensical unless liability existed in the first place.” Pennsylvania v. Union Gas

Co., 491 U.S. 1,13 (1989) (holding that CERCLA abrogated State sovereign immunity 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 Rehabilitation 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. Whereas we concluded that the attorneys’ fees provisions in the 

Fair Housing Act and the Rehabilitation Act did not satisfy the “unequivocal expression” 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 respect to compensatory damages.32

VI. A T T O R N E Y S ’ FEES A N D CO STS

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 sovereign 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 of these sections contains language authorizing 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 with respect lo (he w aiver of sovereign immunity under the Credit Act has im plications 

with respect to claims alleging violations of the Fair Housing Act Although the latter statute does not w aive 

sovereign immunity, conduct violative o f that statute may also violate the C redit Act The fact that the two 

statutes are, to some extent, coextensive is acknow ledged in the Credit A ct's provision that ”‘fn]o person 

aggrieved by a violation of this subchapter and by a violation o f section 3605 o f [the Fair Housing Act] shall 

recover under this subchapter and section 3612 o f [the Fair Housing 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 

Credit A ct's w aiver of sovereign immunity to provide monetary relief in settlem ent of a claim, even if the 

claim cites only the Fair Housing Act, to the extent allowed by the Credit Act

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an award.”33 Because the common law applies the “American Rule,” which provides that each litigant must ordinarily pay his or her own lawyer, Alyeska Pipeline

Service 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 of 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 provides in § 2412(d) for a mandatory award of attorneys’ fees against the United 

States (upon application by the prevailing party), except when the United States’ 

position was substantially justified or when special circumstances would make an 

award of fees unjust. Under subsection (d), attorneys’ fees are capped at the rate 

of $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 EAJA 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 necessary 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 Housing 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 SIO N S

The Supreme Court has established a strict “unequivocal expression” standard 

for determinations 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 of the Civil Rights Act of 1964, does 

not prohibit discrimination by federal agencies. Anti-discrimination provisions in 

the remaining statutes do apply to federal agencies, but only one of them, the Equal 

Credit Opportunity Act, contains a waiver of sovereign immunity regarding monetary relief, and that waiver is limited to compensatory damages. Agencies there31 Because § 2412(b) begins with the caveat “ [u]nless expressly prohibited by statute,” we have reviewed 

the civil rights statutes to determ ine whether they “expressly prohibit" an award o f attorneys’ fees against the 

United Slates. T hey do not.

14 See Fair H ousing Act, 42 U.S C § 3613(c)(2), R ehabilitation Act, 29 U S.C. § 794a(b), Equal Credit 

O pportunity Act, 15 U S C. § 1691 e(d).

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A uthority o f USDA to A w ard M onetary R elief fo r Discrimination

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.

WALTER DELLINGER 

Assistant Attorney G eneral

Office o f Legal Counsel

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