b'June 7, 1977\n\n77-34\n\nMEMORANDUM OPINION FOR THE\nGENERAL COUNSEL OF THE AGENCY FOR\nINTERNATIONAL DEVELOPMENT\nReprogramming\xe2\x80\x94Legislative Committee Objection\n\nThis is in response to your request for our opinion on two questions\narising out of the administration of the Agency for International Devel\xc2\xad\nopment (AID). The first is whether the legislative history o f a provi\xc2\xad\nsion in Title I of the Foreign Assistance and Related Programs Appro\xc2\xad\npriations Act, 1977, Pub. L. No. 94-441, 90 Stat. 1467, can be read to\nconvert that provision into more than a report-and-wait provision. We\nbelieve that the legislative history of the provision cannot be so read,\nand it is our opinion that the executive branch is in no sense legally\nbound to abide by an objection of the appropriations committees of\nCongress with regard to a specific reprogramming.\nThe second question concerns the extent to which the Administrator\nof your agency might be able to bind the agency, the State Depart\xc2\xad\nment, or the President not to go forward with reprogramming action\nover the objection of these congressional bodies. We think that the\nAdministrator may give his or her personal assurance to Congress,\norally or in writing, of his intention to give the greatest weight to such\nan objection, and that he may also convey, if authorized to do so,\nsimilar assurances by the Secretary of State and the President. But the\nAdministrator may not legally bind himself, his agency, the Secretary\nof State, or the President to honor the objection, because such an\nagreement would constitute formal acceptance by the executive branch\nof a legislative veto that is constitutionally suspect.\nI.\n\nThe Effect of the Provision\n\nUnder the provision in question, your agency may not reprogram\nfunds for fiscal year 1977 \xe2\x80\x9cunless the Appropriations Committees of\nboth Houses of the Congress are previously notified fifteen days in\nadvance.\xe2\x80\x9d Thus, the provision constitutes a so-called \xe2\x80\x9creport and wait\xe2\x80\x9d\nprovision of the type that we regard as constitutionally permissible.\nHowever, the conference report that deals with this provision discusses\n133\n\n\x0cthe fact that the provision represents a compromise between the House\nand Senate managers of the bill, the latter having brought into confer\xc2\xad\nence a Senate-passed bill that purported to prevent reprogramming of\nA ID funds without affirmative approval by the appropriations commit\xc2\xad\ntees of the two Houses. T he report states that the compromise \xe2\x80\x9cis based\non the firm expectation of the conferees that the Executive Branch will\nfollow the historical pattern of honoring objections\xe2\x80\x9d to reprogram\xc2\xad\nmings. H.R. Rep. No. 1642, 94th Cong., 2d Sess. 8 (1976). The confer\xc2\xad\nence report was approved by both Houses. 122 Cong. Rec. H 11142\n(daily ed. Sept. 27, 1976); 122 Cong. Rec. S 16811 (daily ed. Sept. 28,\n1976). The question is whether the quoted language, taken together\nwith the language in Title I quoted above, binds your agency or the\nexecutive branch to abide by committee \xe2\x80\x9cvetoes\xe2\x80\x9d of reprogramming\ndecisions as a statutory matter. We think it plain that it does not.\nW hatever the \xe2\x80\x9cfirm expectations\xe2\x80\x9d o f the conferees might have been\nin reaching this compromise, their expectations cannot be read as if the\nSenate version had been enacted into law. As Mr. Justice White recent\xc2\xad\nly w rote for the Supreme Court, \xe2\x80\x9clegislative intention, without more, is\nnot legislation.\xe2\x80\x9d Train v. City o f New York, 420 U.S. 35, 45 (1975).\nThus, even if we were to read into the conference report an intent to\nbind the executive branch to follow its historical practice, we would\nnevertheless conclude that the legislation enacted was inadequate to\nfulfill that purpose.\nII.\n\nExpress Agreements Binding the Executive Branch to Abide by\nCongressional Directives\n\nW e think that an express agreement purporting to bind the Adminis\xc2\xad\ntrator to follow the dictates of congressional committees presents both\nstatutory and constitutional issues. In assessing the validity of such an\nagreement, we would first characterize it as one in which the Adminis\xc2\xad\ntrator places his actual decisionmaking authority concerning specific\nreprogramming in the congressional body. Thus, while the Administra\xc2\xad\ntor exercises some discretion in what reprogramming proposals are to\nbe submitted to the cognizant committee, the latter body would exer\xc2\xad\ncise the final decisionmaking authority by virtue of the veto power it\nwould have under the agreement.\nA. The Statutory Question\nAs a statutory matter, therefore, the question is whether the Adminis\xc2\xad\ntrator possesses the authority to delegate his decisionmaking power to a\ncongressional body. The Adm inistrator\xe2\x80\x99s own power over reprogram\xc2\xad\nming decisions derives from \xc2\xa7 101 of Executive Order 10973, 3 CFR\n493 (1959-1963 Compilation), by which the President delegated to the\nSecretary o f State the functions assigned to the President under the\nForeign Assistance Act o f 1961, 75 Stat. 424, 22 U.S.C. \xc2\xa7\xc2\xa72151 et seq.\nIn that order the President directed the Secretary of State to establish\nA ID , which the latter did by Public Notice 199, 26 Fed. Reg. 10608. In\n134\n\n\x0c\xc2\xa7 2(a)(1) of the notice, the Secretary of State specifically delegated to\nthe Administrator his \xc2\xa7 101 powers. Nothing in the notice would pur\xc2\xad\nport to give the Administrator the authority to delegate beyond him\xc2\xad\nself, much less to a congressional body, his discretion to administer the\nprovisions of the Foreign Assistance Act involved here.\nThus, as a threshhold matter the Administrator does not possess the\npower to make the kind of delegation of authority contemplated by the\nproposed agreement. More importantly, we think that if either the\norder or the public notice attempted to confer such power upon either\nthe Secretary of State or the Administrator, respectively, those docu\xc2\xad\nments would be contrary to \xc2\xa7 621(a) of the Foreign Assistance A ct of\n1961, as amended, 22 U.S.C. \xc2\xa7 2381(a), which states that the \xe2\x80\x9cPresident\nmay exercise any functions conferred upon him by this chapter through\nsuch agency or officer of the United States Government as he shall\ndirect.\xe2\x80\x9d We believe that \xc2\xa7 2381(a) effectively prohibits delegation of\nreprogramming decisions to any person outside the executive branch,\nincluding congressional bodies or individual Members of Congress.\nWe end our discussion of this question by pointing out that, under\nour analysis in Part I, supra, of the Appropriations Act, nothing in that\nAct could be said to qualify the express language of \xc2\xa7 2381, We there\xc2\xad\nfore conclude that the Administrator has no power to make the pro\xc2\xad\nposed delegation and that any delegation of such power by him W w i i l d\nviolate \xc2\xa7 2381(a).\nB. The Constitutional Question\nAlthough our resolution of the statutory question makes it unneces\xc2\xad\nsary to examine the constitutional issue, we briefly address the latter\nbecause we think the answer is reasonably well established. As a practi\xc2\xad\ncal matter, an agreement purporting to bind the Administrator to\nfollow the dictates of a congressional body, if assumed to be binding,\nwould constitute nothing less than a formal committee veto provision.\nSuch provisions have been considered unconstitutional by former Presi\xc2\xad\ndents. See, e.g., Public Papers o f the Presidents: Dwight D. Eisenhower,\n1955, at 688-89; John F. Kennedy, 1963, at 6. They have also been\ndeclared to be unconstitutional by two former Attorneys General. See\n37 Op. A.G. 56 (1933); 41 Op. A.G. 230 (1955). The fact that here the\nAdministrator would be a party to the agreement, constitutionally, does\nnothing to remove the taint.\nThe Administrator cannot delegate his executive power with respect\nto reprogramming decisions to the chairman of a congressional commit\xc2\xad\ntee. To do so would be to delegate an executive function to the\nlegislative branch in violation of the doctrine of separation of powers.\n111.\n\nExpress Agreements Binding the Executive Branch to Consult\nwith Congressional Bodies\n\nGiven our view that the Administrator lacks statutory and constitu\xc2\xad\ntional authority to enter into an agreement effectively surrendering his\n135\n\n\x0cdecisionmaking authority to a congressional body, the question remains\nas to what type of agreement the Administrator may enter into and the\nextent to which he would bind himself and his agency by doing so.\nWe believe that the Administrator may enter into an express agree\xc2\xad\nment by which he would consult with a congressional body prior to\nmaking a reprogramming effective and agree to give great deference to\nthe views of that body in reaching a final decision. The crucial point is\nthat the Administrator must retain at all times the authority to make the\nfinal decision.\nWe also think that such a commitment on the part of the Administra\xc2\xad\ntor could be made binding on AID if published in the Federal Register.\nSee 44 U.S.C. \xc2\xa7 1510. A somewhat analogous situation was presented by\nthe action of Acting Attorney General Bork regarding the authority of\nthe W atergate Special Prosecutor to contest an assertion of executive\nprivilege. This commitment was published as a regulation and was said\nby the Supreme Court to have \xe2\x80\x9cthe force of law\xe2\x80\x9d so long as it was\nextant. See, United States v. Nixon, 418 U.S. 683, 695 (1974).\nWe also believe that such an agreement, whether or not published as\na regulation, could be revoked at will by the Administrator or his\nsuccessor. As the Court said of the regulation involved in the Nixon\ncase, \xe2\x80\x9cit is theoretically possible for the Attorney General to amend or\nrevoke the regulation. . . . \xe2\x80\x9d Id. at 696. Once revoked, the agreement\nwould have no further effect.\nJohn M. H\n\narm on\n\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n136\n\n\x0c'


b'Authority of USDA to Award Monetary Relief\nfor Discrimination\n\nT h e D e p a rtm e n t o f A g ric u ltu re h a s authority to a w a rd m o n e ta ry re lie f, a tto rn e y s \xe2\x80\x99 fees, and c o sts to a\np e rs o n w h o h as b e e n d is c rim in a te d a g a in s t in a p ro g ra m c o n d u c te d by U S D A if a c o u rt c o u ld\na w a rd s u c h re lie f in an a c tio n b y the a g g rie v e d p e rso n\n\nT h a t q u e stio n is c o n tro lle d b y w h e th e r the\n\na n ti-d is c n m in a tio n p ro v is io n s o f the a p p lic a b le c iv il rig h ts statu te a p p ly to fe d e ra l a g e n c ie s, a n d if\nso , w h e th e r th e s ta tu te w a iv e s th e so v e re ig n im m u n ity o f the U n ite d S tates a g a in st im p o sitio n o f\ns u c h re lie f.\n\nT h e a n ti-d is c rim in a tio n p ro v is io n s o f Title V I o f th e C iv il R ig h ts A ct o f 1964 do n o t a p p ly to fe d e ra l\na g e n c ie s . S o m e a n ti-d is c rim in a tio n p ro v is io n s in e a c h o f th e o th e r c iv il rig h ts s ta tu te s a d d re ss e d in\nth e o p in io n d o a p p ly to fe d e ra l agencies, b u t o n ly o n e o f th e statu tes, the E qual C re d it O p p o rtu n ity\nA c t, w a iv e s s o v e re ig n im m u n ity w ith re s p e c t to m o n e ta ry relief, a u th o riz in g im p o sitio n o f c o m p e n \xc2\xad\ns a to ry d a m a g e s . T h e F a ir H o u sin g A ct a n d th e R e h a b ilita tio n A c t d o n o t w a iv e im m u n ity a g a in st\nm o n e ta ry r e lie f\n\nA tto rn e y s \xe2\x80\x99 fees and c o s ts m a y b e a w a rd e d p u rsu a n t to the w a iv e r o f im m u n ity\n\nc o n ta in e d in th e E q u a l A c c e s s to Justice A c t\nA p ril 18, 1 9 9 4\n\nM 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\nD e p a r t m e n t o f A g r ic u l t u r e\n\nT his m em orandum responds to your request for our opinion concerning the\nauthority o f the Secretary of Agriculture to award damages and other forms of\nmonetary relief, attorneys\xe2\x80\x99 fees, and costs to individuals who the Department of\nAgriculture (\xe2\x80\x9cU SD A \xe2\x80\x9d) has determined have been discriminated against as appli\xc2\xad\ncants for, or participants in, USDA conducted program s.1 You have informed us\nthat the statutes authorizing these program s do not authorize such relief and have\nasked our opinion whether various civil rights statutes authorize the Secretary to\nafford such relief.\nThe Secretary has authority to aw ard monetary relief, attorneys\xe2\x80\x99 fees, and costs\nif a court could award such relief in an action by the aggrieved person. A ccord\xc2\xad\ningly, the dispositive questions regarding your inquiry are whether the antidiscrim ination provisions of the individual civil rights statutes apply to federal\nagencies, and if so, whether the statutes w aive the sovereign immunity of the\nUnited States against imposition o f such relief. In considering your request, we\nhave review ed Title VI o f the Civil Rights A ct o f 1964, the Fair Housing Act, the\nRehabilitation Act, and the Equal C redit Opportunity Act. With respect to attor\xc2\xad\nneys\xe2\x80\x99 fees and costs, we have also review ed the Equal Access to Justice Act.\n1 See Letter for W alter Dellinger, Acting Assistant Attorney General, Office of Legal Counsel, from James\nS. G illilan d , General Counsel, Department of Agriculture (Oct 8, 1993).\n\n52\n\n\x0cA u thority o f USDA to A w ard M onetary R e lie f f o r D iscrim ination\n\nWe conclude that the anti-discrimination provisions of Title VI do not apply to\nfederal agencies. Some anti-discrimination provisions in each o f the other statutes\nthat we reviewed do apply to federal agencies, but only one of the statutes, the\nEqual Credit Opportunity Act, waives sovereign immunity with respect to m one\xc2\xad\ntary relief, authorizing imposition of compensatory damages. The Fair Housing\nAct and the Rehabilitation Act do not waive immunity against monetary relief.\nAttorneys\xe2\x80\x99 fees and costs may be awarded pursuant to the waiver o f immunity\ncontained in the Equal Access to Justice Act.\nI. B A C K G R O U N D\nA federal agency must spend its funds only on the objects for which they were\nappropriated. 31 U.S.C. \xc2\xa7 1301(a). Consistent with this requirement,2 appropria\xc2\xad\ntions law provides that agencies have authority to provide for monetary relief in a\nvoluntary settlement of a discrimination claim only if the agency would be subject\nto such relief in a court action regarding such discrimination brought by the ag\xc2\xad\ngrieved person.\nThis principle has been applied in a number of Comptroller General opinions.\nFor example, the Comptroller General has concluded that agencies have the\nauthority to settle administrative complaints of employment discrimination by\nawarding back pay because such monetary relief is available in a court proceeding\nunder Title VII of the Civil Rights Act of 1964 (\xe2\x80\x9cTitle VII\xe2\x80\x9d); however, \xe2\x80\x9c [t]he\naward may not provide for compensatory or punitive damages as they are not per\xc2\xad\nmitted under Title VII.\xe2\x80\x9d Equal Em ploym ent O pportunity Com m ission, 62 Comp.\nGen. 239, 244-45 (1983).3 The Comptroller General has come to the same conclu\xc2\xad\nsion with respect to the Age Discrimination in Employment Act o f 1967\n(\xe2\x80\x9cADEA\xe2\x80\x9d). A lbert D. Parker, 64 Comp. Gen. 349, 352 (1985). The Com ptroller\nGeneral has applied this appropriations law limitation directly to USDA. See Nina\nR. M athews, B-237615, 1990 W L 278216, at 1 (C.G. June 4, 1990) (\xe2\x80\x9cEmployee\nmay not be reimbursed for economic losses pursuant to a resolution agreement\nmade under [ADEA or Title VII] since there is no authority for reimbursement of\ncompensatory damages under either statutory authority.\xe2\x80\x9d).4\n2 S e e a h o 31 U S C. \xc2\xa7 1341(a)(1) (A nti-D eficiency Act)\n1\nW aiving sovereign im m unity, T itle VII expressly authorizes aw ards o f back pay against federal ag en \xc2\xad\ncies A provision in T itle VII entitled \xe2\x80\x9c Em ploym ent by Federal G overnm ent,\'\xe2\x80\x99 42 U S C\n2 0 0 0 e -l6 , p ro \xc2\xad\nhibits discrim ination by federal agencies (subsec (a)); authorizes a civil action in w hich \xe2\x80\x98\xe2\x80\x98the head o f the\ndepartm ent, agency, o r unit . . shall be the d efen d an t" (subsec (c)), and incorporates the rem edies p ro v i\xc2\xad\nsions o f 42 U .S.C \xc2\xa7 2000e-5 for such civil actions (subsec (d)) A w ards o f back pay are expressly au th o r\xc2\xad\nized by 42 U .S.C \xc2\xa7 2000e-5(g) Subsequent to issuance o f the C om ptroller G eneral opinions cite d in the\ntext, T itle VII was am ended to provide for com pensator)\xe2\x80\x99 dam age aw ards against all parties, including federal\nagencies, and punitive dam age aw ards against all non-governm ent parties. 42 U.S C \xc2\xa7 19 8 1a(b)\n4\nT he sam e appropriations lim itation exists for settlem ents o f litigation by the D epartm ent o f Justice as\nexists for settlem ents o f adm inistrative proceedings by agencies. This O ffice has previously o p in e d that the\nperm anent appropriation established pursuant to 3 1 U .S.C. & 1304 (\xe2\x80\x9cthe judgm ent fund\xe2\x80\x9d) is available \xe2\x80\x98\xe2\x80\x98for the\npaym ent o f non-tort settlem ents authorized by the A ttorney G eneral or his designee, w hose paym ent is \xe2\x80\x98not\n\n53\n\n\x0cOpinions o f th e Office o f L egal C ounsel\n\nTherefore, the question you have raised regarding the Secretary\xe2\x80\x99s authority to\naward m onetary relief in administrative proceedings turns on whether the various\ncivil rights statutes authorize the aw ard of such relief against federal agencies in a\ncourt proceeding. That question requires a two-step analysis: whether federal\nagencies are subject to the discrimination prohibitions of the statute; and, if so,\nwhether the statute waives the sovereign immunity of the United States against\nmonetary relief. See U nited States D e p \xe2\x80\x99t o f E nergy v. O hio , 503 U.S. 607, 613-14\n(1992) (Energy D epartm ent conceded it was subject to procedural requirements of\nClean W ater Act and Resource Conservation and Recovery Act and liable for co\xc2\xad\nercive fines under those statutes; therefore, only question presented was whether\nthe statutes waived sovereign immunity from liability for punitive fines).5\nThe first step o f the analysis requires application of conventional standards of\nstatutory interpretation. The second step, however, requires application of a spe\xc2\xad\ncial, \xe2\x80\x9cunequivocal expression\xe2\x80\x9d interpretive standard that the Supreme Court has\nestablished to govern determinations as to whether a statute waives sovereign im\xc2\xad\nmunity \xe2\x80\x94 either the inherent constitutional immunity of the federal government or\nthe Eleventh Amendm ent immunity o f the States:\nW aivers of the Government\xe2\x80\x99s sovereign immunity, to be effective,\nm ust be unequivocally expressed. . . . [T]he Governm ent\xe2\x80\x99s consent\nto be sued m ust be construed strictly in favor of the sovereign, and\nnot enlarge[d] beyond what the language requires . . . . As in the\nEleventh Amendm ent context, the unequivocal expression of elim i\xc2\xad\nnation of sovereign immunity that we insist upon is an expression in\nstatutory text. If clarity does not exist there, it cannot be supplied\nby a com m ittee report.\nU nited S tates v. N ord ic Village, Inc., 503 U.S. 30, 33-37 (1992) (internal quotation\nmarks and citations omitted). Thus, \xe2\x80\x9c[t]here is no doubt that waivers of federal\nsovereign imm unity must be \xe2\x80\x98unequivocally expressed\xe2\x80\x99 in the statutory text.\xe2\x80\x9d\nU nited S tates v. Idaho, ex rel. D ir., D e p \xe2\x80\x99t. o f W ater Resources, 508 U.S. 1, 6\n(1993).\nThe m ethodology required by this \xe2\x80\x9cunequivocal expression\xe2\x80\x9d standard may be\nillustrated by the decision in N ordic Village. Seven Justices joined in an opinion\nfor the Court that found that although a provision o f the Bankruptcy Code could be\no therw ise pro v id ed fo r,\xe2\x80\x99 i f a n d o n lv i f the cause o f action th a t g a ve rise to the settlem ent co u ld h ave resulted\nin a fin a l m o n e v ju d g m e n t.\xe2\x80\x9d A vailability o f Ju d g m en t F u n d in C ases N ot Involving a M onev J u dgm ent\nC laim , 13 O p O .L C. 98, 104 (1 9 8 9 ) (em phasis added) (quoting 31 U S.C. \xc2\xa7 1304).\n5\nT h e C o u rt in D ep a rtm en t o f Energy ex p ressly identified the fundam ental difference betw een the su b \xc2\xad\nstantive c o v erag e o f a statute and liability for v io latio n s o f the statute, stating that the C lean W ater A ct co n \xc2\xad\ntains "sep arate statutory reco g n itio n o f three m an ifestatio n s o f governm ental pow er to w hich the U nited\nStales is su b jected : su b stan tiv e and procedural requirem ents, adm inistrative authority; and \xe2\x80\x98process and\nsanctions, w h e th er \xe2\x80\x98e n fo rc e d \xe2\x80\x99 in courts or o th erw ise. Su b stan tiv e requirem ents are thus distinguished from\nju d ic ia l p ro c e ss." 503 U .S. at 623.\n\n54\n\n\x0cA uthority o f USDA to A w a rd M onetary R e lie f f o r D iscrim ination\n\nread to effect a waiver of sovereign immunity for monetary claims against the\nUnited States by a bankruptcy trustee, the provision was \xe2\x80\x9csusceptible of at least\ntwo interpretations that do not authorize monetary relief.\xe2\x80\x9d 503 U.S. at 34. The\nCourt made no effort to apply traditional rules of statutory construction to deter\xc2\xad\nmine which was the better reading o f the provision and simply concluded:\nThe foregoing [two alternative interpretations] are assuredly not the\nonly readings of [the provision], but they are plausible ones \xe2\x80\x94\nwhich is enough to establish that a reading imposing monetary li\xc2\xad\nability on the Government is not \xe2\x80\x9cunambiguous\xe2\x80\x9d and therefore\nshould not be adopted.\nId. at 37.6 The Court held that sovereign immunity against imposition of monetary\n\nrelief had not been waived.\nIn consultation with the Civil and Civil Rights Divisions of the Department of\nJustice, and having received and considered submissions from various interested\ngovernmental and nongovernmental parties,7 we have identified four civil rights\nstatutes that may apply to USDA programs: Title VI o f the Civil Rights Act of\n1964, the Fair Housing Act, the Rehabilitation Act, and the Equal Credit O pportu\xc2\xad\nnity Act. W e will discuss Title VI first. That analysis presents the least difficulty,\nbecause it is well established that the anti-discrimination provisions of Title VI do\nnot apply to federal agencies and thus there is no need to discuss whether sovereign\nimmunity has been waived. The remaining three statutes require more discussion.\nThe first step of the analysis is satisfied in each case because federal agencies are\ncovered by the anti-discrimination provisions of each statute, at least to some ex\xc2\xad\ntent. Applying the \xe2\x80\x9cunequivocal expression\xe2\x80\x9d standard required under the second\nstep, however, we have concluded that sovereign immunity has been waived with\nrespect to monetary relief by only one of the statutes: the Equal Credit Opportu\xc2\xad\nnity Act. The final section o f the memorandum discusses attorneys\xe2\x80\x99 fees and costs.\nII. T IT L E VI\nTitle VI of the Civil Rights Act of 1964 (\xe2\x80\x9cTitle VI\xe2\x80\x9d), 42 U.S.C. \xc2\xa7 2000d, pro\xc2\xad\nvides that \xe2\x80\x9c[n]o person in the United States shall, on the ground of race, color, or\nnational origin, be excluded from participation in, be denied the benefits of, or be\n\n6 A pplying us rule that w aivers o f sovereign im m unity m ust be unequivocally expressed in the statutory\ntext, the C ourt declined to consider the legislative history in an attem pt to resolve the am biguity. Id.\n7 See Letters from Roberta A chtenberg, A ssistant Secretary fo r Fair H ousing and Equal O pportunity, and\nN elson Diaz, G eneral C ounsel, U S D epartm ent o f H ousing A nd U rban D evelopm ent (N ov 15, 1993),\nElaine R. Jones, D irector-C ounsel, N A A C P Legal D efense and E ducational Fund, Inc. (O ct 28, 1993); Bill\nLann Lee, W estern Regional C ounsel, N A A CP Legal D efense and Educational Fund, Inc. (N ov 12, 1993,\nN ov 24, 1993); Les M endelsohn, Esq , Speiser, Krause, M adole & M endelsohn (Nov 4, 1993), D avid H\nH am s, J r , Executive D irector, Land Loss P revention Project (N ov. 5, 1993, N ov 8, 1993).\n\n55\n\n\x0cO pinions o f the O ffice o f L egal Counsel\n\nsubjected to discrim ination under any program or activity receiving Federal finan\xc2\xad\ncial assistance.\xe2\x80\x9d By its terms, this anti-discrim ination provision does not apply to\nprogram s conducted directly by a federal agency, but rather applies only to \xe2\x80\x9cany\nprogram or activity receiving federal financial assistance.\xe2\x80\x9d The conclusion that\nthis provision does not include federal agencies is reinforced by the definitions of\n\xe2\x80\x9cprogram or activity\xe2\x80\x9d and \xe2\x80\x9cprogram\xe2\x80\x9d contained in 42 U.S.C. \xc2\xa7 2000d-4a. That\nprovision specifically identifies the kinds of entities that are covered, including\nState and local governm ents, but contains no reference to the federal government.\nThe courts have held that Title VI \xe2\x80\x9cw as meant to cover only those situations where\nfederal funding is given to a non-federal entity which, in turn, provides financial\nassistance to the ultimate beneficiary\'.\xe2\x80\x9d S oberal-P erez v. H eckler , 717 F.2d 36, 38\n(2d Cir. 1983), cert, d en ie d , 466 U.S. 929 (1984); Fagan v. U nited States Sm all\nB usiness A dm in . , 783 F. Supp. 1455, 1465 n.10 (Title VI inapplicable to SBA di\xc2\xad\nrect loan program ), a jf \xe2\x80\x99d, 19 F.3d 684 (D.C. Cir. 1992).\nIn light o f our conclusion that the discrimination prohibition o f Title VI does\nnot apply to federal agencies, there is no need to consider whether Title VI waives\nsovereign immunity.\n\nIII. THE F A IR HOUSING A C T\nA.\nT he Fair Housing Act, 42 U.S.C. \xc2\xa7\xc2\xa7 3601-3619,8 prohibits covered persons and\nentities from engaging in any \xe2\x80\x9cdiscriminatory housing practice,\xe2\x80\x9d which is defined\nas \xe2\x80\x9can act that is unlawful under section 3604, 3605, 3606, or 3617 of this title.\xe2\x80\x9d\n42 U.S.C. \xc2\xa7 3602(f). Section 3604 prohibits discrimination in the sale or rental of\nhousing. Section 3603(a)(1)(A) of the Act provides that \xe2\x80\x9cthe prohibitions against\ndiscrim ination in the sale or rental o f housing set forth in section 3604 . . . shall\napply\xe2\x80\x9d to \xe2\x80\x9cdw ellings owned or operated by the Federal G overnm ent.\xe2\x80\x9d Thus, a fed\xc2\xad\neral agency is subject to the discrimination prohibitions of \xc2\xa7 3604 whenever the\nagency itself is engaged in selling or renting real estate.\nIn contrast to the language explicitly subjecting federal agencies to the discrimi\xc2\xad\nnation prohibitions of \xc2\xa7 3604, it is unclear whether federal agencies are subject to\n\xc2\xa7 3605(a), which prohibits \xe2\x80\x9cany person or other entity whose business includes\nengaging in residential real estate-related transactions to discriminate against any\nperson in making available such a transaction, or in the terms or conditions of such\na transaction.\xe2\x80\x9d The definition section of the Act does not include governments or\ngovernm ent agencies in the definition of \xe2\x80\x9cperson,\xe2\x80\x9d see \xc2\xa7 3602(d), and unless oth\xc2\xad\nerwise specified, the term \xe2\x80\x9cperson\xe2\x80\x9d in a statute does not include the federal gov\xc2\xad\nernm ent or a federal agency. U nited States v. U nited M ine W orkers, 330 U.S. 258,\n8\nT h e F a ir H ousing A ct was originally e n a c te d as T itle V III o f the C ivil R ights A ct o f 1968, Pub L. No.\n90-284 , 82 Stat. 73 (1968).\n\n56\n\n\x0cA u thority o f USDA to A w a rd M onetary R e lie f f o r D iscrim ination\n\n275 (1947) (\xe2\x80\x9cIn common usage,\xe2\x80\x9d the term person \xe2\x80\x9cdoes not include the sovereign,\nand statutes employing it will ordinarily not be construed to do so.\xe2\x80\x9d). The term\n\xe2\x80\x9centity\xe2\x80\x9d is not defined at all in the Act. It is not necessary to resolve this question\nfor purposes of this opinion, however, because we conclude in the next section that\nthe Act does not waive the sovereign immunity of the United States against m one\xc2\xad\ntary liability.9\n\nB.\nW hether federal agencies are subject to monetary liability for violations of\n\xc2\xa7 3604 o f the Fair Housing Act turns on application of the \xe2\x80\x9cunequivocal expres\xc2\xad\nsion\xe2\x80\x9d standard for waivers of sovereign immunity discussed in section I of this\nmemorandum. W e conclude that the Act does not waive sovereign immunity be\xc2\xad\ncause its text falls well short of satisfying the \xe2\x80\x9cunequivocal expression\xe2\x80\x9d standard.\nSection 3613 authorizes aggrieved persons to enforce the Fair Housing A ct\xe2\x80\x99s\nanti-discrimination prohibitions in court. Although \xc2\xa7 3613 is silent as to whom this\naction may be brought against, it does specify what relief may be awarded. Sub\xc2\xad\nsection (c)(1) authorizes a court to award an aggrieved person \xe2\x80\x9cactual and punitive\ndamages,\xe2\x80\x9d as well as injunctive relief. In addition, under subsection (c)(2), the\ncourt \xe2\x80\x9cmay allow the prevailing party, other than the United States, a reasonable\nattorney\xe2\x80\x99s fee and costs. The United States shall be liable for such fees and costs\nto the sam e extent as a private person.\xe2\x80\x9d\nW e do not believe that \xc2\xa7 3613 waives sovereign immunity, except with respect\nto attorneys\xe2\x80\x99 fees and costs. Although the Fair Housing Act expressly establishes a\ngeneral cause of action for redress of discriminatory practices, it is silent as to the\nparties against whom such a cause of action may be brought and it does not contain\nlanguage expressly subjecting the United States to such a suit.\nIt is possible to infer from the fact that \xc2\xa7 3603 expressly subjects the United\nStates to the discrimination provisions of \xc2\xa7 3604 that Congress intended that the\ncause of action established by \xc2\xa7 3613 would also apply to the United States. How\xc2\xad\never, \xc2\xa7 3613 does not say so and the Supreme Court has held that subjecting a gov\xc2\xad\nernmental entity to the substantive or procedural requirements of a statute does not\nnecessarily mean that sovereign immunity has been waived or abrogated with re\xc2\xad\nspect to claim s for damages. See, e.g., U nited States D e p \xe2\x80\x99t o f Energy v. Ohio, 503\nU.S. 607 (1992) (federal agencies subject to procedural requirements o f Clean\nW ater Act and Resource Conservation and Recovery Act but immune from actions\n9\nFor the sam e reason it is also unnecessary to resolve w hether the discrim ination prohibitions in \xc2\xa7\xc2\xa7 3606\nand 3617 apply to federal agencies We note, how ever, that these sections do not appear to be directed at\ngovernm ent activities. Section 3606 m akes it unlaw ful to discrim inate w ith respect to \xe2\x80\x9c access to o r m em ber\xc2\xad\nship or p articipation in any m ultiple-listing service, real estate b ro k e rs\' organization or other service, o rg an i\xc2\xad\nzation, or facility relating to the business o f selling o r renting d w ellin g s.\xe2\x80\x99\' Section 3617 m akes it unlaw ful to\n\xe2\x96\xa0\xe2\x80\x98coerce, intim idate, threaten, o r interfere w ith any perso n " w ith respect to the exercise o f rights protected by\n!)\xc2\xa7 3603-3606 o f the Act.\n\n57\n\n\x0cO pinions o f the O ffice o f L egal C ounsel\n\nfor punitive fines); A ta sca d ero State Hosp. v. Scanlon, 473 U.S. 234, 244-46\n(1985) (States subject to section 504 o f Rehabilitation Act but immune from ac\xc2\xad\ntions for m onetary relief); Em ployees v. M issouri Pub. Health D e p \xe2\x80\x99t, 411 U.S. 279\n(1973) (States subject to Fair Labor Standards Act but immune from actions for\nmonetary relief).10 The Court has stated that additional language in the suit\nauthorization provision is necessary to \xe2\x80\x9cindicat[e] in some way by clear language\nthat the constitutional immunity [is being] swept aw ay.\xe2\x80\x9d Id. at 285.\nThe only additional relevant language in \xc2\xa7 3613 is subsection (c)(2), which\nauthorizes the award o f attorneys\xe2\x80\x99 fees:\nIn a civil action [brought by an aggrieved person under section\n3613], the court, in its discretion, may allow the prevailing party,\nother than the United States, a reasonable attorney\xe2\x80\x99s fee and costs.\nThe United States shall be liable for such fees and costs to the same\nextent as a private person.\nThe presence, in a provision authorizing the bringing of suits by private parties, of\nlanguage indicating that the United States may be liable for attorneys\xe2\x80\x99 fees and\ncosts certainly indicates a recognition that the United States may be subject to suits\nunder the provision. The question rem ains whether that is a sufficient expression\no f a w aiver o f sovereign immunity against damages or any other monetary relief\nexcept attorneys\xe2\x80\x99 fees and costs.\nW e recognize that it is a plausible reading of the statute to answer that question\nin the affirm ative. W e note, however, that the Supreme Court has declined to give\nsuch a reading to an attorneys\xe2\x80\x99 fees provision in a State sovereign immunity con\xc2\xad\ntext. See D ellm uth v. M uth, 491 U.S. 223, 231 (1989) (stating in decision holding\nState sovereign imm unity not abrogated by Education of the Handicapped Act:\n\xe2\x80\x9cThe 1986 am endm ent to the EHA deals only with attorney\xe2\x80\x99s fees, and does not\nalter or speak to w hat parties are subject to suit.\xe2\x80\x9d). In any event, we conclude that\nthe statute does not meet the \xe2\x80\x9cunequivocal expression\xe2\x80\x9d standard because there is\nanother plausible interpretation of the attorneys\xe2\x80\x99 fees language that would not en\xc2\xad\ntail w aiver o f im munity for damages and other monetary relief. Just because the\nUnited States is subject to the cause of action does not necessarily mean it is sub\xc2\xad\nject to the full range o f remedies that are set forth in the statute. These remedies\ninclude not only compensatory and punitive damages, but also a \xe2\x80\x9cpermanent or\ntem porary injunction, temporary restraining order, or other order (including an\norder enjoining the defendant from engaging in such [discriminatory housing]\npractice or ordering such affirmative action as may be appropriate).\xe2\x80\x9d 42 U.S.C.\n\xc2\xa7 3613(c)(1).\n10\nT h e Suprem e C o u rt has stated that the stan d ard for e stablishing a w aiver o f the federal g o v ern m en t\xe2\x80\x99s\nsov ereig n im m u n ity is su b stan tially the sam e as the standard for finding congressional abrogation o f state\nE leven th A m en d m en t im m u n ity S e e Nordic Village, 503 U S at 37. Eleventh A m endm ent cases like A ta s\xc2\xad\nca d ero and M isso u ri P u b lic H ea lth D ep \'t are therefore helpful in o u r analysis\n\n58\n\n\x0cA u thority o f USDA to A w ard M onetary R e lie f f o r D iscrim ination\n\nThe alternative plausible interpretation of the statute is that the attorneys\xe2\x80\x99 fees\nprovision contemplates an action that is limited to seeking relief other than money\ndamages. This reading is based on the fact that the sovereign immunity of the\nUnited States against non-monetary relief already has been waived by the Admin\xc2\xad\nistrative Procedure Act (the \xe2\x80\x9dA PA\xe2\x80\x9d), 5 U.S.C. \xc2\xa7\xc2\xa7 701-706 which provides that\n[a]n action in a court o f the United States seeking relief other than\nmoney damages and stating a claim that an agency or an officer or\nem ployee thereof acted or failed to act in an official capacity or un\xc2\xad\nder color of legal authority shall not be dismissed nor relief therein\nbe denied on the ground that it is against the United States.\n5 U.S.C. \xc2\xa7 7 0 2 .11 \xe2\x80\x9c[T]he caselaw of [the Court of Appeals for the D istrict of C o\xc2\xad\nlumbia Circuit] confirms that \xe2\x80\x98the [APA] waiver applies to any suit, whether under\nthe APA . . . or any other statute.\xe2\x80\x99\xe2\x80\x9d 12 Other Circuits are in accord,13 and the Su\xc2\xad\npreme Court has implicitly held that the APA waiver is not limited to actions\nbrought under the APA, see Bowen v. M assachusetts, 487 U.S. 879, 891-901\n(1988) (APA waiver applied in action brought under 28 U.S.C. \xc2\xa7 1331).\nUnder the Supreme Court\xe2\x80\x99s \xe2\x80\x9cunequivocal expression\xe2\x80\x9d standard, the availability\nof this alternative interpretation of the Fair Housing Act attorneys\xe2\x80\x99 fees provision\n\xe2\x80\x94 that it contemplates an action for non-monetary relief based on the APA waiver\nof sovereign immunity \xe2\x80\x94 precludes finding a waiver of sovereign immunity. See\nN ordic Village, 503 U.S. at 37 (when a provision is subject to more than one plau\xc2\xad\nsible interpretation, the \xe2\x80\x9creading imposing monetary liability on the Government is\nnot \xe2\x80\x98unam biguous\xe2\x80\x99 and therefore should not be adopted\xe2\x80\x9d).14\n11 The legislative history o f this APA provision indicates that us purpose was \xe2\x80\x9c to elim inate the defense o f\nsovereign im m unity w ith respect to any action m a court o f the U nited States seeking relief o ther than money\ndam ages and based on the assertion o f unlaw ful official action by a Federal officer.\xe2\x80\x99* S Rep. No 94-996, at\n2 (1976) S e e a l s o H .R Rep. N o 94-1656, at 9 ( 1976), reprinted m 1976 U S C C A N 6121, 6 1 2 9 C\xe2\x80\x98[T]he\ntim e (has] now com e to elim inate the sovereign im m unity defense in all equitable actions for specific relief\nagainst a Federal agency or officer acting in an official capacity ") See g enerally K enneth C D avis, A dm in\xc2\xad\nistrative Law T rea tise \xc2\xa7 23 19, at 192 (2d ed. 1983) (\xe2\x80\x9cT he m eaning o f the 1976 legislation is entirely clear\non its face, and that m eaning is fully corroborated by the legislative history. T h ai m eaning is very simple.\nSovereign im m unity in suits for relief other than money dam ages is no longer a defense.\' ).\n12 A labam a v B uw sher, 734 F Supp 525, 533 (D D C. 1990), a fj\'d , 935 F.2d 332 (D C C ir 1991), t e n\nd e n ie d , 502 U S 981 (1991) (quoting P B ator, P M ishkin, D. M ellzer & D. S hapiro, H art a n d Wech.sler\'s\nThe Federal C ourts a n d The F ederal System 1154 (3d ed. 1988), and citing N atio n a l A.s.s\xe2\x80\x99n o f C ounties v\nB aker, 842 F 2d 369, 373 (D C . Cir. 19S8), cert denied, 488 U S 1005 (1989)), Schnapper v F oley, 667\nF 2d 102, 108 (D .C C ir 1981), cert d en ied , 455 U S 948 (1982), S ea-land Service, Inc v A laska R.R , 659\nF.2d 243, 244 (D C C ir 1981), cert denied, 455 U S. 919 (1982)\nn See, e.g., S p e cter v. G a rrett, 995 r.2 d 404, 4 1 0 (3d C ir 1993) (\xe2\x80\x9c the w aiver o f sovereign im m unity\ncontained in [the A PA ] is not lim ited to suits brought under the A PA "), R ed Lake B a n d oj C hippew a Indians\nv Barlow , 846 F.2d 474, 476 (8th Cir 1988) C\xe2\x80\x98[T]he w aiver o f sovereign im m unity contained in [the APA]\nis not dependent on application o f the procedures and review standards o f the A PA It is dependent on the\nsuit against the g o vernm ent being one for non-m onetary re lie f" )\n14\nA nother alternative interpretation may also be possible B ecause the U nited States may intervene in\nprivate actions b rought under \xc2\xa7 3613 in o rder to seek b ro ad er relief, .see 42 U S.C \xc2\xa7 3613(e), it is possible\nthat the U nited States could incur liability for attorneys\' fees and costs w ithout being a defendant. W e find\n\n59\n\n\x0cO pinions o f the O ffice o f L egal C ounsel\n\nW e therefore conclude that the text o f the Fair Housing Act as amended does\nnot waive the sovereign immunity of the United States against imposition of\nmonetary relief. The APA waives sovereign immunity as to any non-monetary\nrelief available under the Act.\nC.\nThe foregoing conclusion is reinforced by consideration o f the text and legisla\xc2\xad\ntive history o f the Fair Housing Act when it was originally enacted as Title VIII of\nthe Civil Rights Act of 1968 (\xe2\x80\x9cTitle V III\xe2\x80\x9d), supra, and of the 1988 amendments to\nthe Fair Housing Act (the \xe2\x80\x9c 1988 A m endm ents\xe2\x80\x9d), Pub. L. No. 100-430, 102 Stat.\n1619 (1988). This is a useful methodology for considering whether the Act waives\nsovereign immunity because it allows a focused analysis of whether Congress spe\xc2\xad\ncifically intended to waive sovereign im m unity.15\nAs discussed above, the language in the Fair Housing Act that provides the most\nspecific basis for an argum ent that sovereign immunity for monetary liability has\nbeen waived is the language in the attorneys\xe2\x80\x99 fees provision authorizing a court to\naward \xe2\x80\x9cthe prevailing party, other than the United States, a reasonable attorney\xe2\x80\x99s\nfee and costs. The United States shall be liable for such fees and costs to the same\nextent as a private person.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 3613(c)(2). This specific reference to the\nUnited States was not contained in the original Fair Housing A ct\xe2\x80\x99s (Title V III\xe2\x80\x99s)\nattorneys\xe2\x80\x99 fees provision, which authorized the courts to \xe2\x80\x9caward to the plaintiff . . .\nreasonable attorney fees in the case o f a prevailing plaintiff: Provided, [t]hat the\nsaid plaintiff in the opinion of the court is not financially able to assume said attor\xc2\xad\nney\xe2\x80\x99s fees.\xe2\x80\x9d Pub. L. No. 90-284, \xc2\xa7 812(c), 82 Stat. 89, 107 (1968). As with the\ncurrent version o f the Act, the original provision on enforcement by private per\xc2\xad\nsons authorized an award o f damages to an aggrieved person but was silent as to\nwho could be potential defendants in the civil actions. Id. \xc2\xa7 812, 82 Stat. at 107.\n\nthis in terp retatio n to be less plausible than th e non-m onetary re lie f interpretation because the latter gives\neffect to pro v isio n s in the sam e subsection, w hich is devoted to *\xe2\x80\x98[r]elief w hich may be g ra n te d /\xe2\x80\x99 42 U .S.C.\n\xc2\xa7 3 61 3 (c), w h ile the fo rm er requires reading to g eth er separate subsections and inferring that C ongress may\nhave co n tem p lated in su b sectio n (c) that in terv en tio n s by the A tto rney G eneral under subsection (e), in cases\nwhere she \xe2\x80\x9ccertifies that the case is o f general public im p o rtan ce\xe2\x80\x9d and seeks broader relief, m ight result in\naw ards o f attorneys fees and co sts against th e U nited Stales\n15\nJu stice S calia criticized this m ethodology in Pennsylvania v. Union G as Co., 491 U.S. at 29-30 (Scalia,\nJ., co n cu rrin g in part and d isse n tin g in part) ( \xe2\x80\x9cT h a t m ethodology is appropriate\nif one assum es that the\ntask o f a co u rt o f law is to p lu m b the intent o f the particular C ongress that enacted a p articular provision.\nT hat m ethodology is not m ine . .\nIt is o u r task . . not to e n te r the m inds o f the M em bers o f C ongress\n. . b u t rath er to give fair and reasonable m ean in g to the text o f the U nited States Code, adopted by various\nC ong resses at various tim es.") N otw ithstanding this criticism , w e believe the m ethodology is appropriate\nhere W h atev e r the m erit o f Justice Scalia\xe2\x80\x99s em p h asis o f code m eaning ov er congressional intent in other\nc ontex ts, w e do not think that approach is req u ired or desirable w here the question presented is w hether\nsovereig n im m u n ity has been w aived and m ore than one statu to ry enactm ent is involved. W e note that no\nother Ju stic e ex p ressed a g re em en t with J u stic e S c a lia \xe2\x80\x99s statem en t in U nion G as. M oreover, the C o u rt\'s\nm ajority in D ellm u th used this approach S e e 491 U.S. at 227-32\n\n60\n\n\x0cAuthority o f USDA to A w a rd M onetary R e lie f fo r D iscrim ination\n\nThus, the original Fair Housing Act contained no express or implied reference\nto any cause of action against the United States in its provisions establishing a pri\xc2\xad\nvate cause of action and authorizing awards o f attorneys\xe2\x80\x99 fees. The 1988 Amend\xc2\xad\nments to the Act removed the \xe2\x80\x9cability to pay\xe2\x80\x9d limitation on attorneys\xe2\x80\x99 fee awards\nand added language making it clear that the United States was subject to an award\nof attorneys\xe2\x80\x99 fees and costs. The 1988 Amendments, however, did not add any\nlanguage suggesting that the United States was subject to damages claims.\nThe legislative history of the 1988 Amendments reinforces the conclusion that\nthe Fair Housing Act does not waive the sovereign immunity of the United States\nfor monetary relief.16 The principal legislative history for those amendments is\ncontained in the report o f the Committee on the Judiciary of the House o f Repre\xc2\xad\nsentatives. H.R. Rep. No. 100-711 (1988), reprin ted in 1988 U.S.C.C.A.N. 2173.\nIn a paragraph giving an overview of the purpose of the amendments made by the\ncommittee, the report stated that the revision \xe2\x80\x9cbrings attorney\xe2\x80\x99s fee language in title\nVIII closer to the model used in other civil rights laws.\xe2\x80\x9d Id. at 13, rep rin ted in\n1988 U.S.C.C.A.N. at 2174. The committee went on to state later in the report that\n\xe2\x80\x9c[t]he bill strengthens the private enforcement section by expanding the statute of\nlimitations, removing the limitation on punitive damages, and brings [sic] attor\xc2\xad\nney\xe2\x80\x99s fee language in title VIII closer to the model used in other civil rights laws.\xe2\x80\x9d\nId. at 17, reprin ted in 1988 U.S.C.C.A.N. at 2178.17\nThe committee report indicates that the thrust of the amendments was to remove\nlimitations on effective private enforcement by changing the statute of limitations,\nremoving the limit on punitive damages, and removing the \xe2\x80\x9cability to pay\xe2\x80\x9d limita\xc2\xad\ntion on the award o f attorneys\xe2\x80\x99 fees. It also indicates an intent to conform the lan\xc2\xad\nguage of the attorneys\xe2\x80\x99 fees provision to that in other civil rights law s.18 There is\nno discussion whatsoever o f actions against the United States, much less any refer\xc2\xad\n\n16 A lthough legislative history can n o t be relied upon to provide the \xe2\x80\x9c unequivocal expression\xe2\x80\x9d the Su\xc2\xad\nprem e C ourt requires, N o rd ic Village, 503 U S at 37, w e believe it is perm issible to cite legislative history to\nreinforce a text-based conclusion that a statute does not w aive so v ereign im m unity. C onfidence in a c o n clu \xc2\xad\nsion based on the text can be strengthened w here the legislative history reveals no evidence o f intent to\nw aive sovereign im m unity\n17 In the discu ssio n o f section 813(c) in the section-by-section portion o f the report, the com m ittee fo\xc2\xad\ncused on rem oving the punitive dam ages lim itation. The follow ing is the entirety o f the discussion o f section\n813(c)\nSection 8 1 3(c) provides for the types o f relief a court m ay grant T his section is intended to c o n \xc2\xad\ntinue the types o f re lie f that are provided u n d e rc u rre n t law , but rem oves the $1000 lim itation on\nthe aw ard o f punitive dam ages The C o m m ittee believes that the lim it on punitive dam ages\nserved as a m ajor im pedim ent to im posing an effective d eterrent on violators and a disincentive\nfor private perso n s to bring suits under existing law T he C om m ittee intends that courts be able\nto aw ard all rem edies provided under this section. As in Section 812(o), the c ourt may also\naw ard a tto rn e y \'s fees and costs.\nH R. Rep. No. 100-711, at 39-40, rep rin ted m 1988 U .S.C C .A .N at 2200-01.\n18 For exam ple, the atto rn ey s\' fees provision in T itle VII o f the C ivil R ights o f 1964 (em ploym ent dis\xc2\xad\ncrim ination) co n tain s the follow ing sim ilar language concerning the U nited States. \xe2\x80\x9c [T ]he court . . . m ay\nallow the prevailing party, other than . . . the U nited States, a reasonable atto rn e y \xe2\x80\x99s fee (including expert\nfees) as part o f the costs, and . . the U nited Slates shall be liable for costs the sam e as a private person.\xe2\x80\x9d\n42 U S.C. \xc2\xa7 2 0 0 0e-5(k)\n\n61\n\n\x0cO pinions o f the O ffice o f L eg a l Counsel\n\nence to an intent to waive sovereign im munity or to establish monetary liability for\nthe United States.\nGiven the focused nature of the 1988 Am endm ents to the Fair Housing Act, it is\nnot reasonable to infer any intent to waive the sovereign immunity of the United\nStates against imposition of monetary relief. A t most, the amendments can be read\nto waive sovereign imm unity against awards o f attorneys\xe2\x80\x99 fees. Reading into the\nam endm ent a broader waiver would be impermissible under the interpretative\nmethod required by the Supreme C ourt and would amount to finding an accidental\nwaiver or a waiver by inadvertence.\n\nD.\nOur conclusion regarding waiver o f sovereign immunity under the Fair Housing\nAct is supported by the case law on other statutes. In D ellmuth v. Muth, 491 U.S.\n223 (1989), the Suprem e Court discussed w hether the Education of the Handi\xc2\xad\ncapped Act (\xe2\x80\x9cEH A \xe2\x80\x9d), which, like the Fair Housing Act, had been amended to im\xc2\xad\npose liability for attorneys\xe2\x80\x99 fees on an otherwise immune governmental entity (in\nthat case, the States), subjected the States to suit. Although the textual basis for\narguing waiver of sovereign immunity under that statute appears to be stronger\nthan is the case under the Fair Housing Act, the Court declined to find waiver.\nThe EHA \xe2\x80\x9cenacts a com prehensive scheme to assure that handicapped children\nmay receive a free public education appropriate to their needs. To achieve these\nends, the Act m andates certain procedural requirements for participating state and\nlocal educational agencies.\xe2\x80\x9d Id. at 225. In D ellm uth, the Supreme Court reversed\na decision o f the Third Circuit Court of Appeals that the EHA abrogated the States\xe2\x80\x99\nsovereign immunity against suit for damages. According to the Supreme Court,\n[T]he Court of Appeals rested principally on three textual provi\xc2\xad\nsions. The court first cited the A ct\xe2\x80\x99s preamble, which states Con\xc2\xad\ngress\xe2\x80\x99 finding that \xe2\x80\x9cit is in the national interest that the Federal\ngovernm ent assist State and local efforts to provide programs to\nm eet the education needs o f handicapped children in order to assure\nequal protection o f the law.\xe2\x80\x9d Second, and most important for the\nCourt of Appeals, was the A ct\xe2\x80\x99s judicial review provision, which\nperm its parties aggrieved by the adm inistrative process to \xe2\x80\x9cbring a\ncivil action . . . in any State court o f com petent jurisdiction or in a\ndistrict court o f the United States w ithout regard to the amount in\ncontroversy.\xe2\x80\x9d Finally, the Court o f Appeals pointed to a 1986\nam endm ent to the EHA, w hich states that the A ct\xe2\x80\x99s provision for a\nreduction of attorney\xe2\x80\x99s fees shall not apply \xe2\x80\x9cif the court finds that\nthe State or local educational agency unreasonably protracted the\nfinal resolution o f the action or proceeding or there was a violation\n62\n\n\x0cA u thority o f USDA to A w a rd M onetary R elie f f o r D iscrim ination\n\no f this section.\xe2\x80\x9d In the view of the Court of Appeals, this am end\xc2\xad\nment represented an express statement of Congress\xe2\x80\x99 understanding\nthat States can be parties in civil actions brought under the EHA.\nId. at 228 (citations omitted).\n\nWe quote at length the Supreme C ourt\xe2\x80\x99s rejection of the Court of Appeals\xe2\x80\x99\nanalysis, because it can be applied directly to the Fair Housing Act:\nW e cannot agree that the textual provisions on which the Court of\nAppeals relied, or any other provisions of the EHA, demonstrate\nwith unmistakable clarity that Congress intended to abrogate the\nStates\xe2\x80\x99 immunity from suit. The EHA makes no reference whatso\xc2\xad\never to either the Eleventh Amendment or the States\xe2\x80\x99 sovereign im \xc2\xad\nmunity. Nor does any provision cited by the Court of Appeals\naddress abrogation in even oblique terms, much less with the clarity\nA tascadero requires. The general statement of legislative purpose\nin the A ct\xe2\x80\x99s preamble simply has nothing to do with the States\xe2\x80\x99 sov\xc2\xad\nereign immunity. The 1986 amendment to the EHA deals only with\nattorney\xe2\x80\x99s fees, and does not alter or speak to what parties are sub\xc2\xad\nject to suit. . . . Finally, [the private cause of action provision] pro\xc2\xad\nvides judicial review for aggrieved parties, but in no way intimates\nthat the States\xe2\x80\x99 sovereign immunity is abrogated. As we made plain\nin A tascadero, \xe2\x80\x9c [a] general authorization for suit in federal court\nis not the kind o f unequivocal statutory language sufficient to abro\xc2\xad\ngate the Eleventh Amendment.\xe2\x80\x9d\n. . . W e recognize that the EH A \xe2\x80\x99s frequent reference to the Slates,\nand its delineation of the States\xe2\x80\x99 important role in securing an ap\xc2\xad\npropriate education for handicapped children, make the States,\nalong with local agencies, logical defendants in suits alleging viola\xc2\xad\ntions o f the EHA. This statutory structure lends fo rce to the infer\xc2\xad\nence that the S tates were intended to be subject to dam ages actions\nf o r violations o f the EHA. But such a perm issible inference, w hat\xc2\xad\never its logical force, would remain ju s t that: a p erm issib le infer\xc2\xad\nence. It would not be the unequivocal declaration which . . . is\nn ecessary before we w ill determ ine that C ongress intended to exer\xc2\xad\ncise its pow ers o f abrogation.\nId. at 231-32 (emphasis added) (citations omitted).\nDellmuth presented a stronger case for waiver of sovereign immunity than the\n\nFair Housing Act because the EHA contains \xe2\x80\x9c frequent reference[s] to the States\xe2\x80\x9d\nand is obviously very much focused on the activities of the States, while the Fair\n63\n\n\x0cO pinions o f the O ffice o f L egal C ounsel\n\nHousing Act is focused on the private sector and has relatively minor relevance to\nthe activities o f federal agencies. Nonetheless, the Supreme Court refused to find\nthat the EHA waived sovereign immunity, relying on specific points that are di\xc2\xad\nrectly applicable to the Fair Housing A ct: that an attorneys\xe2\x80\x99 fees provision speaks\nonly to attorneys\xe2\x80\x99 fees and does not address who is subject to suit or what remedies\nare available; that a general authorization for suit is not an \xe2\x80\x9cunequivocal expres\xc2\xad\nsion\xe2\x80\x9d ; and that legitimate inferences that Congress intended a damages cause of\naction are not \xe2\x80\x9cunequivocal expressions.\xe2\x80\x9d 19\nThe Departm ent o f H ousing and U rban Development (\xe2\x80\x9cHUD\xe2\x80\x9d) has submitted a\nletter stating its conclusion that \xe2\x80\x9ca federal agency . . . may be required to pay dam \xc2\xad\nages and other relief . . . [for] violations of the [Fair Housing Act].\xe2\x80\x9d20 HUD relies\nprincipally on the analysis contained in D oe v. A ttorn ey G eneral o f the U nited\nS tates, 941 F.2d 780 (9th Cir. 1991), which held that the Rehabilitation Act waives\nthe sovereign immunity o f the United States against damage awards. As discussed\nin the next section o f this memorandum, we believe that D oe used a method of\nstatutory interpretation that is impermissible under the Supreme Court precedents\nand that the case was incorrectly decided.\n\nIV. R EH ABILITATION A C T\nW e reach fundamentally the same conclusions with respect to the Rehabilitation\nAct o f 1973, as amended (the \xe2\x80\x9cRehabilitation A ct\xe2\x80\x9d), 29 U.S.C. \xc2\xa7\xc2\xa7 794-794c, as we\nhave reached with respect to the Fair Housing Act.\nA.\nSection 504 o f the Rehabilitation Act, 29 U.S.C. \xc2\xa7 794, prohibits discrimination\non the basis of disability:\nNo otherwise qualified individual with a disability in the United\nStates, as defined in section 706(8) of this title, shall, solely by rea\xc2\xad\nson of her or his disability, be excluded from the participation in, be\ndenied the benefits of, or be subjected to discrimination under any\nprogram or activity receiving Federal financial assistance o r under\n19\nT h e C o u rt\'s o p in to n in D ellm uth relies h eav ily on A ta sc a d e ro State H osp. v Scanlon, 473 U S 234\n(1985). S ee 491 U .S. at 227, 23 0 -3 2 A ta sca d ero also stro n g ly supports the conclusion that the Fair H ous\xc2\xad\ning A ct does not w aive so v ereig n immunity fo r m onetary re lie f A ta sca d ero concerned the discrim ination\nprovisio n s o f the R eh ab ilitatio n A ct o f 1973 a n d is discussed in detail in the next section o f this m em oran\xc2\xad\ndum , w hich ad d resses that act. A tascadero h e ld that the R ehabilitation A ct does not abrogate the sovereign\nim m un ity o f the States W e co n clu d e in the n e x t section that the analysis in that case should apply fully to\nactions ag ain st the federal g o v ern m en t The c a s e is significant fo r purposes o f the d iscussion in this section\nbecause the R eh ab ilitatio n A ct has a structure th a t is sim ilar to the Fair H ousing Act\nL etter for W alter D ellinger, Assistant A tto rn e y G eneral, O ffice o f Legal Counsel, from R oberta A chtenberg, A ssista n t S ecretary for F air Housing an d Equal O p p o rtu n ity , and N elson Diaz, G eneral C ounsel at I\n(N ov 15, 1993).\n\n64\n\n\x0cA u thority o f USDA to A w ard M onetary R elief f o r D iscrim ination\n\nany program o r activity conducted b y any E xecutive agen cy o r by\nthe U nited States P ostal Service.\nId. \xc2\xa7 794(a) (emphasis added). The italicized language, which was added to sec\xc2\xad\n\ntion 504 in 1978,21 expressly subjects federal agencies to the discrimination prohi\xc2\xad\nbitions of the Act.\n\nB.\nSection 505 of the Rehabilitation Act (29 U.S.C. \xc2\xa7 794a), which also was added\nin 1978,22 sets forth the remedies available for violations of the discrimination pro\xc2\xad\nhibitions. The following provisions of section 505 are pertinent here:23\n(a)(2) The remedies, procedures, and rights set forth in title VI of\nthe Civil Rights Act of 1964 [42 U.S.C. \xc2\xa7\xc2\xa7 2000d et seq.] shall be\navailable to any person aggrieved by any act or failure to act by any\nrecipient of Federal assistance or Federal provider of such assis\xc2\xad\ntance under section 794 o f this title.\n(b) In any action or proceeding to enforce or charge a violation of a\nprovision of this subchapter, the court, in its discretion, may allow\nthe prevailing party, other than the United States, a reasonable at\xc2\xad\ntorney\xe2\x80\x99s fee as part of the costs.\nId. \xc2\xa7 794a(a)(2), (b).\n\nThus, as with the Fair Housing Act, the Rehabilitation Act has had two legisla\xc2\xad\ntive enactments that bear on the sovereign immunity question: the original dis\xc2\xad\ncrimination prohibition and a later amendment that can be argued to effect a waiver\nof immunity against imposition o f monetary relief because it refers to the United\nStates in a way that recognizes that federal agencies may be defendants in private\nactions. The history of the Rehabilitation Act enactments would at least initially\nsuggest the possibility of a more plausible argument in favor of waiver, however,\nbecause its amendments were more sweeping than the Fair Housing Act am end\xc2\xad\nments: while the Fair Housing Act amendments of 1988 merely made relatively\nminor changes to an existing cause o f action and modified an attorneys\xe2\x80\x99 fees provi\xc2\xad\nsion, the section 504 amendments in 1978 added for the first time a provision\nauthorizing a private action for violations and a provision authorizing attorneys\xe2\x80\x99\nfees awards.\n\n*\' Pub. L No 95-602\n119. 92 Stat. 2955, 2982 (1978)\n" Id. i} 120, 92 Stat at 2982.\n21\nThe only o th er provision o f section 505 (29 U S C <) 794a(a)( I )) c oncerns discrim ination in federal\nem ploym ent, w hich we do not understand to be co v ered by y our opinion request\n\n65\n\n\x0cO pinions o f the O ffice o f L egal C ounsel\n\nHowever, after analyzing the Rehabilitation Act enactments under the Supreme\nC ourt\xe2\x80\x99s \xe2\x80\x9cunequivocal expression\xe2\x80\x9d standard, we conclude that there is no waiver of\nsovereign im m unity for monetary relief. There is no fundamental difference be\xc2\xad\ntween the effect o f the Rehabilitation Act enactm ents and the effect of the Fair\nHousing Act enactments. In both cases, there is no express language authorizing\nactions against the United States for dam ages or other monetary relief and it is rea\xc2\xad\nsonable to read the cause o f action and attorneys\xe2\x80\x99 fees provisions as allowing ac\xc2\xad\ntions against the United States for injunctive relief pursuant to the waiver of\nsovereign im m unity for such relief contained in the Administrative Procedure Act.\nAs the Suprem e C ourt made clear in N ordic Village, where a plausible reading is\navailable that does not authorize m onetary relief, \xe2\x80\x9ca reading imposing monetary\nliability on the G overnm ent is not \xe2\x80\x98unam biguous\xe2\x80\x99 and therefore should not be\nadopted.\xe2\x80\x9d 503 U.S. at 37.24\nC.\nO ur conclusion is supported by the case law. The Supreme Court already has\nheld that the Rehabilitation Act does not abrogate the sovereign immunity of the\nStates. In A ta sca d e ro State Hosp. v. Scanlon, 473 U.S. 234 (1985), the Court held\nthat sections 504 and 505 of the Act do not abrogate the States\xe2\x80\x99 Eleventh Am end\xc2\xad\nment sovereign immunity against imposition o f monetary relief. Id. at 244-46.\nApplying an \xe2\x80\x9cunequivocally clear\xe2\x80\x9d standard,25 which is substantially the same as\nthe \xe2\x80\x9cunequivocal expression\xe2\x80\x9d standard governing waiver of federal immunity\n(N ordic Village, 503 U.S. at 37), the Court held that States that receive federal\nassistance are clearly subject to the discrim ination prohibition of section 504,\n[b]ut given their constitutional role, the States are not like any other\nclass of recipients of federal aid. A general authorization for suit in\nfederal court is not the kind o f unequivocal statutory language suffi\xc2\xad\ncient to abrogate the Eleventh Amendment.\nW hen Congress\nchooses to subject the States to federal jurisdiction, it must do so\nspecifically. Accordingly, w e hold that the Rehabilitation Act does\nnot abrogate the Eleventh A m endm ent bar to suits against the\nStates.\n\n"4 As we e x p lain ed in the course of our c o n sid eratio n o f the Fair H ousing Act, we believe it is perm issible\nto c ite leg islativ e h isto ry 1 0 reinforce a tex t-b ased conclusion th at a statute does not w aive sovereign im m u\xc2\xad\nnity W e h ave review ed the legislative h isto ry o f the R ehabilitation A ct am endm ents o f 1978 and have\nfound, as w as the case w ith resp ect to the F air H ousing A ct am endm ents o f 1988, that it does not include any\nco n sid eratio n o f the su b jects o f sovereign im m u n ity o r o f establishing m onetary liability for the U nited\nSlates. T h u s, it is c o n siste n t w ith o u r conclusion that those am endm ents do not w aive sovereign im m unity.\n23 A ta sc a d e ro e stab lish ed the following stan d a rd \' \xe2\x80\x98C o n g ress may abrogate the S ta te s\xe2\x80\x99 constitutionally\nsecured im m u n ity from suit in federal court o n ly by m aking its intention unm istakably clear in the language\nof the s ta tu te .\xe2\x80\x99\xe2\x80\x99 473 U S at 242.\n\n66\n\n\x0cAuthority o f USDA to A w a rd M onetary R e lie f f o r D iscrim ination\n\n473 U.S. at 246 (citations om itted )26 The Court did not specifically address the\nsection 505 attorneys\xe2\x80\x99 fees and costs provision, but its holding contains an implicit\nconclusion that the provision does not waive immunity for any monetary relief\nother than the attorneys\xe2\x80\x99 fees and costs themselves. The statutory framework with\nrespect to the United States is substantially the same as with respect to the States,\nand we see no basis for concluding that the language of the Act waives the federal\ngovernm ent\xe2\x80\x99s sovereign immunity when it does not abrogate the immunity of the\nStates.27\nA panel of the Ninth Circuit Court of Appeals has concluded otherwise, holding\nthat the Rehabilitation Act does indeed waive the sovereign immunity of the United\nStates against imposition of damages. D oe v. A ttorney G eneral o f the U nited\nStates, 941 F.2d 780 (1991). We believe, however, that D oe was incorrectly de\xc2\xad\ncided. First, the Ninth Circuit\xe2\x80\x99s analytical approach was inconsistent with the Su\xc2\xad\npreme C ourt\xe2\x80\x99s requirement of an \xe2\x80\x9cunequivocal expression\xe2\x80\x9d in statutory text without\nresort to legislative history. See N ordic Village, 503 U.S. at 33-37. In the section\nof its opinion entitled \xe2\x80\x9cThe Legal Standard for Ascertaining W hether the G overn\xc2\xad\nment has Waived Sovereign Im m unity,\xe2\x80\x9d 941 F.2d at 787, the Ninth Circuit incor\xc2\xad\nrectly stated that \xe2\x80\x9c[t]he key to determining whether there has been a waiver is\nCongress\xe2\x80\x99s intent as manifested in the statute\xe2\x80\x99s language and legislative history.\xe2\x80\x9d\nId. at 788. Rather than using the special standard established by the Supreme\nCourt, the Ninth Circuit chose to view the issue as requiring application o f the\nfactors for implying a private right of action under C ort v. Ash, 422 U.S. 66, 78\n(1975), with an additional sovereign immunity gloss that \xe2\x80\x9conly explicit congres\xc2\xad\nsional intent in the statutory language and history will suffice\xe2\x80\x9d for implying a pri\xc2\xad\nvate right of action against the United States. D oe, 941 F.2d at 788.\nIn addition, the Ninth Circuit\xe2\x80\x99s analysis of the Rehabilitation Act is unpersua\xc2\xad\nsive. The court\xe2\x80\x99s conclusion was as follows:\nIn amending section 504, Congress made certain that federal agen\xc2\xad\ncies would be liable for violations o f the statute. Congress\xe2\x80\x99s inser\xc2\xad\ntion of federal agencies in the pre-existing clause subjecting others\nto liability and its broad-brush remedy provision indicate that Con\xc2\xad\ngress intended that there be no distinction among section 504 de\xc2\xad\nfendants.\n26 R esponding (o the Suprem e C o u rt\'s decision in A ta sca d ero, C ongress passed legislation expressly\nabrogating the sovereign im m unity o f the Slates under the R ehabilitation A ct and other civil rights statutes\nPub L No 99-506, \xc2\xa7 1003, 100 Stat 1807, 1845 (1986). T hat legislation contained no provisions bearing\non the sovereign im m unity o f the U nited States\n27 The only treatm ent o f the federal governm ent in section 505 that is different from the treatm ent o f the\nStates (other than the obvious difference that federal agencies are not recipients o f federal assistance) is that\nthe attorneys fees provision (paragraph (b)) does not allow the U nited States as a prevailing party to recover\nattorney s\' fees T hat exception says nothing, o f course, about the liability o f the U nited States for dam ages\nor other m onetary relief, and the fact that the U nited States may be subject to attorneys fees aw ards d oes not\nw aive sovereign im m unity for dam ages and other kinds o f m onetary relief.\n\n67\n\n\x0cO pinions o f the O ffice o f Legal C ounsel\n\nId. at 794.\n\nThat conclusion is incorrect in two fundamental respects. First, the\naddition o f federal agencies to section 504 was not to a \xe2\x80\x9cclause subjecting others to\nlia b ility \'\' but rather to a clause that im posed a non-discrimination substantive re\xc2\xad\nquirem ent and did not address liability in any way; it was not until section 505 was\nadded in 1978 that the Rehabilitation Act addressed remedies. Second, the Su\xc2\xad\npreme C ourt has rejected the view that the \xe2\x80\x9cbroad-brush remedy provision [section\n505] indicate[s] that C ongress intended that there be no distinction among section\n504 defendants.\xe2\x80\x9d Id. As discussed above, the Supreme Court opined in A ta s\xc2\xad\nca d ero State H o sp ita l v. Scanlon that there are indeed distinctions to be made\nam ong section 504 defendants, holding that\ngiven their constitutional role, the States are not like any other class\no f recipients o f federal aid. A general authorization for suit in fed\xc2\xad\neral court is not the kind of unequivocal statutory language suffi\xc2\xad\ncient to abrogate the Eleventh Amendment.\nW hen Congress\nchooses to subject the States to federal jurisdiction, it must do so\nspecifically.\n473 U.S. at 246. The United States, of course, also has special constitutional\nstatus, and the approach taken in A ta sca d ero requiring an unequivocal specific\nexpression o f intent to waive sovereign immunity is equally applicable in the con\xc2\xad\ntext of the federal governm ent. N ordic Village, 503 U.S. at 37.\n\nV. E Q U AL CRED IT OPPO RTUNITY A C T\nIn contrast to our preceding conclusions, we conclude that the Equal Credit Op\xc2\xad\nportunity Act (the \xe2\x80\x9cC redit Act\xe2\x80\x9d), 15 U.S.C. \xc2\xa7\xc2\xa7 169]-1691 f, partially waives the\nsovereign immunity o f the United States against the imposition o f monetary relief,\nby authorizing an award of compensatory damages. Although this conclusion is\nnot com pletely free from doubt because it is possible that the Supreme Court\nwould require a more explicit statem ent of waiver, we reach this conclusion be\xc2\xad\ncause we can find no reasonable explanation for a provision exempting all govern\xc2\xad\nment creditors from liability for punitive dam ages other than that the provision\nrecognizes that governm ent creditors are liable for compensatory damages. There\nis no com parable provision in any o f the other civil rights statutes addressed in this\nmemorandum.\nA.\nThe Credit Act prohibits any creditor from discriminating against any applicant\nwith respect to any aspect of a credit transaction. Id. \xc2\xa7 1691(a). The term\n\xe2\x80\x9ccreditor\xe2\x80\x9d is defined as \xe2\x80\x9cany person who regularly extends, renews, or continues\ncredit; any person who regularly arranges for the extension, renewal, or continua\xc2\xad\n68\n\n\x0cA uthority o f USDA to A w ard M onetary R elie f f o r D iscrim ination\n\ntion of credit; or any assignee of an original creditor who participates in the deci\xc2\xad\nsion to extend, renew, or continue credit.\xe2\x80\x9d Id. \xc2\xa7 1691a(e). For purposes o f the\nAct, a \xe2\x80\x9cperson\xe2\x80\x9d is \xe2\x80\x9ca natural person, a corporation, governm ent o r govern m en tal\nsubdivision o r agency, trust, estate, partnership, cooperative, or association.\xe2\x80\x9d Id.\n\xc2\xa7 1691 a(f) (emphasis added).\nAlthough the Credit Act contains no further indication in its text or legislative\nhistory as to whether the governmental references in the definition of \xe2\x80\x9cperson\xe2\x80\x9d\nwere intended to include federal agencies, the natural understanding of the refer\xc2\xad\nences is that the federal government is included, because the language is unre\xc2\xad\nstricted and there is no language suggesting any different treatment for different\nlevels o f government. If it were intended that the federal government was to be\nexempt and the statute limited in its coverage to State and local governments, we\nwould expect that the text of the statute would make such a distinction \xe2\x80\x94 or at\nleast the distinction would be identified in legislative history. N either the statute\nnor the legislative history contain any such suggestion.\nOur conclusion that the federal government is subject to the discrimination pro\xc2\xad\nvisions of the Credit Act may be reinforced by reference to another, previously\nenacted statute that also regulates the extension of credit, the Truth in Lending Act\n(\xe2\x80\x9cTILA \xe2\x80\x9d), 15 U.S.C. \xc2\xa7\xc2\xa7 1601 -1681 u. Both the Credit Act and TILA are part o f the\nConsum er Credit Protection Act.28 Statutes addressing the same subject m atter \xe2\x80\x94\nthat is, statutes \xe2\x80\x9cin pari materia\xe2\x80\x9d \xe2\x80\x94 should be construed together.29\nTILA uses the same language as the Credit Act concerning covered government\norganizations. TILA applies to any \xe2\x80\x9ccreditor,\xe2\x80\x9d which is defined as a \xe2\x80\x9cperson\xe2\x80\x9d who\nregularly extends certain types of consumer credit. Id. \xc2\xa7 1602(f). \xe2\x80\x9cPerson\xe2\x80\x9d is de\xc2\xad\nfined as a \xe2\x80\x9cnatural person\xe2\x80\x9d or an \xe2\x80\x9corganization.\xe2\x80\x9d Id. \xc2\xa7 1602(d), and \xe2\x80\x9corganization\xe2\x80\x9d\nincludes a \xe2\x80\x9cgovernment or governmental subdivision or agency.\xe2\x80\x9d Id. \xc2\xa7 1602(c).\nAs with the Credit Act, there is no further indication of what levels of government\nare covered. Unlike the Credit Act, however, TILA contains an express assertion\nof sovereign immunity in the enforcement section of the statute, thus indicating a\nclear recognition that the federal government is subject to the substantive provi\xc2\xad\nsions o f TILA:\n[N]o civil or criminal penalty provided under this subchapter for\nany violation thereof may be imposed upon the United States or any\ndepartm ent or agency thereof, or upon any State or political subdi\xc2\xad\nvision thereof, or any agency o f any State of political subdivision.\n\n211 T IL A w as enacted in 1968 as title I o f the C onsum er C red it Protection A ct, Pub. L. N o 90-321, 82 Stat.\n146, and the C red it Act w as added to the C onsum er C redit Protection A ct as title VII in 1974, Pub. L. No.\n93-495, tit V, 88 Stat. 1500, 1521.\n29 S ee 2B N orm an J Singer, S u th erla n d S ta tu to ry C o n stru ctio n \xc2\xa7 51.02, at 121 (5th ed 1992) ( \xe2\x80\x9c It is\nassum ed that w henever the legislature enacts a provision it has in m ind previous statutes relating to the sam e\nsubject m atter In the absence o f any express repeal or am en d m en t, the new provision is presum ed in accord\nwith the legislative policy em bodied in those prior statutes T h u s, they all should be construed together \'*).\n\n69\n\n\x0cO pinions o f the O ffice o f L egal C ounsel\n\nId. \xc2\xa7 1612(b). It is reasonable to assum e that when Congress defined \xe2\x80\x9cperson\xe2\x80\x9d in\n\nthe Credit Act to include a \xe2\x80\x9cgovernment, governmental subdivision or agency,\xe2\x80\x9d it\nintended those term s to have the same scope as the identical terms used in the pre\xc2\xad\nviously enacted TIL A .30\n\nB.\nO f course, as discussed in prior sections of this memorandum, the fact that fed\xc2\xad\neral agencies are subject to the substantive requirements of the Credit Act does not\nnecessarily mean that there has been a waiver of sovereign immunity against impo\xc2\xad\nsition o f m onetary liability for violation of such requirements. The Credit Act sov\xc2\xad\nereign imm unity question is not a sim ple one, because there is no language directly\naddressing the subject of sovereign immunity or directly stating that the United\nStates may be subject to an award o f monetary relief. However, as discussed be\xc2\xad\nlow, we find there has been a waiver because the A ct contains a provision that indi\xc2\xad\nrectly, but in our view unequivocally, indicates that the United States may be\nrequired to pay com pensatory damages.\nSection 1691e o f the Credit Act provides for a private right of action against\ncreditors who violate the discrimination prohibitions of the Act. Under subsection\n(a), all creditors are liable for compensatory damages: \xe2\x80\x9c[A]ny creditor who fails to\ncomply with any requirem ent imposed under this subchapter shall be liable to the\naggrieved applicant for any actual dam ages sustained by such applicant acting ei\xc2\xad\nther in an individual capacity or as a m ember o f a class.\xe2\x80\x9d Under subsection (b), all\ncreditors except governm ental creditors are liable for punitive damages: \xe2\x80\x9c [A]ny\ncreditor, other than a government or governmental subdivision or agency . . . shall\nbe liable to the aggrieved applicant for punitive damages . . . .\xe2\x80\x9d Equitable relief is\nauthorized under subsection (c).31 Finally, under subsection (d), costs and attor\xc2\xad\nneys\xe2\x80\x99 fees may be imposed: \xe2\x80\x9cIn the case of any successful action under subsection\n(a), (b), or (c) . . . , the costs of the action, together with a reasonable attorney\xe2\x80\x99s\nfee as determ ined by the court, shall be added to any damages awarded by the\ncourt\nSubsection (b) of section 1691 e provides the key to finding a partial waiver of\nsovereign immunity against monetary relief. Com ing immediately after a provision\n(subsection (a)) that states that all creditors are liable for compensatory damages, a\nprovision exem pting government creditors from liability for punitive damages nec\xc2\xad\nessarily implies a recognition that governm ent creditors are otherwise liable for\ndam ages under the Act and remain liable for com pensatory damages under the pre\xc2\xad\nceding section, which contains no such limitation. \xe2\x80\x9c[A] limitation of liability is\n\n,0 S e e id \xc2\xa7 51 0 2 , at 122 ( \'\xe2\x80\x98U nless the c o n te x t indicates otherw ise, w ords or phrases in a provision that\nw ere used in a prioi act p ertain in g to the sam e su b ject m atter will be construed in the sam e sense ")\n11\n\xe2\x80\x9c U pon a p p licatio n by an aggrieved ap p lican t, the [court] m ay grant such equitable and declaratory relief\nas is n e ce ssa ry to en fo rce the requirem ents im p o se d under th is s u b c h a p te r.\' 1 5 U S C \xc2\xa7 16 9 1e(c)\n\n70\n\n\x0cA uthority o f USDA to A w a rd M onetary R e lie ffo r D iscrim ination\n\nnonsensical unless liability existed in the first place.\xe2\x80\x9d P ennsylvania v. Union Gas\nCo., 491 U.S. 1, 13 (1989) (holding that CERCLA abrogated State sovereign im\xc2\xad\nmunity based in part on implication of provisions exempting States from liability\nfor certain actions).\nThus, the Credit Act is different from the Fair Housing Act and the Rehabilita\xc2\xad\ntion Act in the fundamental respect that it contains a provision indicating liability\nfor damages that is susceptible to no other plausible interpretation that would not\nimpose liability. W hereas we concluded that the attorneys\xe2\x80\x99 fees provisions in the\nFair Housing Act and the Rehabilitation Act did not satisfy the \xe2\x80\x9cunequivocal ex\xc2\xad\npression\xe2\x80\x9d standard because there was another plausible interpretation that did not\nimpose monetary liability, see N ordic Village, 503 U.S. at 37, the interpretation of\nsubsections (a) and (b) that subjects government creditors, including the United\nStates, to liability for compensatory damages is the only plausible interpretation.\nAccordingly, we conclude that the Credit Act waives sovereign immunity with re\xc2\xad\nspect to compensatory damages.32\nVI. A T T O R N E Y S \xe2\x80\x99 F E E S A N D C O S T S\nThe analysis for whether attorneys\xe2\x80\x99 fees and costs may be awarded under the\ncivil rights statutes whose anti-discrimination provisions apply to federal agencies\nis simpler than the foregoing analysis on whether monetary relief may be awarded.\nThere is no need to decide whether the individual civil rights statutes waive sover\xc2\xad\neign immunity for attorneys\xe2\x80\x99 fees and costs, because the Equal Access to Justice\nAct (the \xe2\x80\x9cEAJA\xe2\x80\x9d) expressly waives sovereign immunity. Immunity for costs is\nwaived by 28 U.S.C. \xc2\xa7 2412(a), and immunity for attorneys\xe2\x80\x99 fees is waived by 28\nU.S.C. \xc2\xa7\xc2\xa7 2412(b) and 2412(d). Each o f these sections contains language author\xc2\xad\nizing an award of attorneys\xe2\x80\x99 fees or expenses to \xe2\x80\x9cthe prevailing party in any civil\naction brought by or against the United States.\xe2\x80\x9d\nThe EAJA also specifically addresses the extent of the United States\xe2\x80\x99 liability\nfor attorneys\xe2\x80\x99 fees and costs. There are two separate attorneys\xe2\x80\x99 fees regimes under\nthe EAJA. Under 28 U.S.C. \xc2\xa7 2412(b), a court may award attorneys\xe2\x80\x99 fees against\nthe United States, and if it does, \xe2\x80\x9c[t]he United States shall be liable for [attorneys\xe2\x80\x99]\nfees and expenses to the same extent that any other party would be liable under the\ncommon law or under the terms of any statute which specifically provides for such\n12\nO ur conclusion w ith respect lo (he w aiver o f sovereign im m unity under the C redit A ct has im plications\nw ith respect to claim s alleging violations o f the Fair H ousing A ct A lthough the latter statute does not w aive\nsovereign im m unity, conduct violative o f that statute may also violate the C redit Act T he fact that the tw o\nstatutes are, to som e extent, coextensive is acknow ledged in the C redit A c t\'s provision that \xe2\x80\x9d\xe2\x80\x98fn]o person\naggrieved by a violation o f this subchapter and by a violation o f section 3605 o f [the Fair H ousing Act] shall\nrecover under this subchapter and section 3612 o f [the Fair H ousing Act], if such violation is based on the\nsam e transaction " 15 U S C \xc2\xa7 16 9 1e(i) Thus, w here a federal agency is discrim inating in the extension o f\ncredit, that conduct may violate both statutes. If it does, the agency w ould have authority pursuant to the\nC redit A ct\'s w aiv er o f sovereign im m unity to provide m onetary relief in settlem ent of a claim , even if the\nclaim cites only the Fair Housing Act, to the extent allow ed by the C redit Act\n\n71\n\n\x0cO pinions o f the O ffice o f L egal Counsel\n\nan aw ard.\xe2\x80\x9d33 Because the common law applies the \xe2\x80\x9cAmerican Rule,\xe2\x80\x9d which pro\xc2\xad\nvides that each litigant must ordinarily pay his or her own lawyer, A lyeska Pipeline\nS ervice Co. v. W ilderness Society , 421 U.S. 240, 247 (1975), the extent of liability\nfor attorneys\xe2\x80\x99 fees under the individual civil rights statutes should generally be\ngoverned by the specific fee-shifting language o f the statutes, each of which\nauthorizes the court to award \xe2\x80\x9ca reasonable attorneys\xe2\x80\x99 fee.\xe2\x80\x9d34\nAs an alternative to an award of attorneys\xe2\x80\x99 fees under \xc2\xa7 2412(b), the EAJA pro\xc2\xad\nvides in \xc2\xa7 2412(d) for a mandatory award o f attorneys\xe2\x80\x99 fees against the United\nStates (upon application by the prevailing party), except when the United States\xe2\x80\x99\nposition was substantially justified o r when special circumstances would make an\naward o f fees unjust. U nder subsection (d), attorneys\xe2\x80\x99 fees are capped at the rate\no f $75 per hour, absent a special judicial finding that special factors justify higher\nfees, \xc2\xa7 2412(d)(2)(A), and parties m ay only recover if they have incomes or net\nworths below certain levels, \xc2\xa7 2412(d)(2)(B).\nThe EA JA also provides for the extent of the United States\xe2\x80\x99 liability for costs:\n\xe2\x80\x9cA judgm ent for costs when taxed against the United States shall . . . be limited to\nreimbursing in whole or in part the prevailing party for the costs incurred by such\nparty in the litigation.\xe2\x80\x9d 28 U.S.C. \xc2\xa7 2412(a)(1). Because this provision begins\nwith the caveat \xe2\x80\x9c[ejxcept as otherwise specifically provided by statute,\xe2\x80\x9d it is neces\xc2\xad\nsary to decide whether the civil rights statutes provide differently with respect to\ncosts. The Rehabilitation Act and the Equal Credit Opportunity Act do not contain\nlanguage specifically addressing the liability of the United States for costs. See 29\nU.S.C. \xc2\xa7 794a(b); 15 U.S.C. \xc2\xa7 1691e(d). Therefore, the EAJA provision applies\nunder those two statutes. The Fair H ousing Act, however, does contain a specific\nprovision that displaces the EAJA provision. It provides that \xe2\x80\x9c[t]he United States\nshall be liable for . . . costs to the same extent as a private person.\xe2\x80\x9d 42 U.S.C.\n\xc2\xa7 3613(c)(2).\nVII. C O N C L U S IO N S\nThe Suprem e Court has established a strict \xe2\x80\x9cunequivocal expression\xe2\x80\x9d standard\nfor determ inations on whether a statute waives the sovereign immunity of the\nUnited States against imposition of monetary relief. One of the civil rights statutes\nthat we have been asked to review, Title VI o f the Civil Rights Act of 1964, does\nnot prohibit discrim ination by federal agencies. Anti-discrimination provisions in\nthe rem aining statutes do apply to federal agencies, but only one of them, the Equal\nCredit O pportunity Act, contains a waiver of sovereign immunity regarding mone\xc2\xad\ntary relief, and that w aiver is limited to compensatory damages. Agencies there\xc2\xad\n31 B ecause \xc2\xa7 2 4 1 2 (b ) b eg in s w ith the c av eat \xe2\x80\x9c [u]nless expressly prohibited by statute,\xe2\x80\x9d we have review ed\nthe c ivil rig h ts statu tes to determ in e w hether th e y \xe2\x80\x9cex p ressly prohibit" an aw ard o f a tto rn e y s\xe2\x80\x99 fees against the\nU nited Slates. T h e y do not.\n14\nS e e F air H ousing Act, 4 2 U.S C \xc2\xa7 3 6 1 3 (c)(2 ), R ehabilitation A ct, 29 U S.C. \xc2\xa7 794a(b), Equal C redit\nO pportu n ity A ct, 15 U S C. \xc2\xa7 1 6 9 1e(d).\n\n72\n\n\x0cA u thority o f USDA to A w a rd M onetary R e lie f fo r D iscrim ination\n\nfore have authority to provide compensatory damages to the extent allowed by the\nCredit Act in their voluntary settlement of discrimination claims if the conduct\ncomplained of violates the Credit Act. In addition, the Equal Access to Justice Act\nauthorizes awards of attorneys\xe2\x80\x99 fees and costs against federal agencies.\n\nW ALTER DELLINGER\nA ssistan t A ttorn ey G en eral\nOffice o f L egal C ounsel\n\n73\n\n\x0c'


b"June 14, 1979\n\n79-42\n\nMEMORANDUM OPINION FOR THE\nASSOCIATE DEPUTY ATTORNEY GENERAL\nDistrict of Columbia\xe2\x80\x94Applicability of the Double\nJeopardy Clause of the Fifth Amendment to the\nConstitution\n\nYou have asked whether, were Congress to establish within the govern\xc2\xad\nment of the District of Columbia an office equivalent to that of a city or\nState prosecutor, the Double Jeopardy Clause of the Fifth Amendment\nwould bar successive prosecutions by the United States and the District\n(under the United States and District Codes) of a single person for the\nsame acts. It is our conclusion that, because there is an identity of\nsovereignty between the United States and the District of Columbia for\nDouble Jeopardy Clause purposes, the bar of the Fifth Amendment would\nprevent such successive prosecutions.1\nThe Supreme Court has recently stated:\n[It is a] well established principle that a federal prosecution does\nnot bar a subsequent state prosecution of the same person for the\nsame acts, and a state prosecution does not bar a federal one.\nThe basis for this doctrine is that prosecutions under the laws of\nseparate sovereigns do not, in the language of the Fifth Amend\xc2\xad\nm ent,\xe2\x80\x9d subject [the defendant] for the same offence to be twice\nput in jeopardy.\xe2\x80\x9d [United States v. Wheeler, 435 U.S. 313,\n316-317 (1978) (footnote omitted).]\nIt is equally well established that \xe2\x80\x9c [t]he \xe2\x80\x98dual Sovereignty\xe2\x80\x99 concept does\nnot apply, however, in every instance where successive cases are brought\nby nominally different prosecuting entities.\xe2\x80\x9d Id. at 318. Thus, in cases of\nsuccessive prosecution in which the Supreme Court has found an identity\nof sovereignty, as between a Federal territory and the United States,\n\n1 W e take it as given that, if applicable, the bar o f the Double Jeopardy Clause prevents\nsuch dual prosecutions. T he nature and scope o f the bar, when applicable, is not the subject\no f this m em orandum .\n\n250\n\n\x0cPuerto Rico v. Shell Co., 302 U.S. 253 (1937); Grafton v. United States,\n206 U.S. 333 (1907), or a-city and a State, Waller v. Florida, 397 U.S. 387\n(1970),2 it has applied the bar of the Double Jeopardy Clause.\nThe Court has spoken unequivocally in identifying the single factor,\nwhich, for Fifth Amendment Double Jeopardy Clause purposes, deter\xc2\xad\nmines whether there is unity or duality of sovereignty between nominally\ndistinct prosecuting governments. It is neither the degree of control which\nthe one has over the other, United States v. Wheeler, supra, at 319-320,\n327-328, nor is it the authority of the one to legislate and to enforce its\nlegislation independently of the other. Waller v. Florida, supra. R ather,'\nthe question to be asked is whether the ultimate source of the power of\neach to prescribe laws and punish infractions of those laws is the same or\ndifferent. Id.; United States v. Wheeler; Grafton v. United States. If it is\nthe same, there is identity of sovereignty for Double Jeopardy Clause\npurposes.\nWhen the question is whether there is identity of sovereignty between\nthe United States and another prosecuting government, the answer is,\nultimately, constitutionally based. If the government in question is not\nnominally the United States but derives its power to legislate and to prose\xc2\xad\ncute from a delegation by the United States of a constitutional power,\nthere is unity of sovereignty between the two. C f, United States v.\nWheeler, at 322 (\xe2\x80\x9c [T]he controlling question * * * is the source of this\npower * * * [i]s it a part of inherent * * * sovereignty, or an aspect of\nthe sovereignty of the Federal Government which has been\ndelegated * * * by Congress?\xe2\x80\x9d ). Such is clearly the case with respect to a\nterritory of the United States. Grafton v. United States. This is also the\ncase as between the District of Columbia and the United States.\nArticle I, Section 8, Clause 17, of the Constitution vests in Congress the\npower \xe2\x80\x9c [t]o exercise exclusive Legislation in all Cases whatsoever, over\nsuch District (not exceeding ten Miles square) as may, by Cession of par\xc2\xad\nticular States, and the Acceptance of Congress, become the Seat of the\nGovernment of the United States * *\nThis power of Congress may\npermissibly be delegated, District o f Columbia v. John R. Thompson Co.,\n346 U.S. 100 (1953), and much of it has been. See District of Columbia\nSelf-Government and Governmental Reorganization Act, Public Law No.\n93-198, 87 Stat. 774.\xe2\x80\x99 However, its source, whatever governmental entity\n\n1 The Double Jeopardy Clause o f the Fifth Am endment has been held applicable to the\nStates. Benton v. Maryland, 395 U .S. 784 (1969).\n1 Although Congress has provided for hom e rule for the District o f Colum bia, it delegated\nthe power o f government \xe2\x80\x9c [s]ubject to the retention by Congress o f the ultimate legislative\nauthority over the N ation\xe2\x80\x99s Capital granted by article I, section 8, o f the C onstitution.\xe2\x80\x9d\nDistrict o f Columbia Self-Government and Governm ental Reorganization Act \xc2\xa7 102(a).\nMoreover, it reserved, the Act notwithstanding, \xe2\x80\x9c the right, at any time, to exercise its con\xc2\xad\nstitutional authority as legislature for the District * *\nId., \xc2\xa7 601. Thus, it is clear that,\neven if it could, without a constitutional amendm ent or a grant o f statehood or in\xc2\xad\ndependence, the U nited States has not chosen to divest itself o f its sovereignty over the\nDistrict o f Columbia. It has only delegated power which is its own, to be exercised by the\nDistrict government that it created.\n\n251\n\n\x0cexercises it, remains the same\xe2\x80\x94the Constitution of the United States.\nWith respect to identity of the ultimate source of the power to proscribe\nconduct and to prosecute violations, the relationship between the District\nof Columbia and the United States cannot be distinguished, for double\njeopardy purposes, from either the relationship between a Federal ter\xc2\xad\nritory and the United States or a city and a State. In each case the Double\nJeopardy Clause is applicable because the nominally distinct governmental\nentities have as their source of power the same organic law. As between the\nUnited States and the District of Columbia that source is Article I, section\n'8, clause 17 of the Constitution.\nThe Supreme Court has not had occasion to rule on a double jeopardy\nquestion arising out of a dual prosecution under United States and District\nlaw. The District of Columbia Circuit Court of Appeals, however, has\nconsidered the relationship for double jeopardy purposes between the\nDistrict and the United States and has opined that \xe2\x80\x9c [s]ince successive pros\xc2\xad\necutions on identical or lesser included D.C. and federal offenses emanate\nfrom the same sovereignty, they are precluded by double jeopardy con\xc2\xad\nsiderations.\xe2\x80\x9d United States v. Jones, 527 F. (2d) 817, 821 (D.C. Cir.\n1975). See also, United States v. Knight, 509 U.S. F. (2d) 354, 360 (D.C.\nCir. 1974). We believe that this statement o f the law was correct when\nissued, still applies, and will continue to apply when the District adopts a\ncriminal code without congressional enactment, and would apply were\nCongress to establish a prosecutor\xe2\x80\x99s office within the District government.\nMary C. Law\n\nton\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n252\n\n\x0c"