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- « + For all we now know, the defendants. in this case may be entirely blameless. If sattorneys' fees were assessed against them: at this point in the litigation, the ultimately “Successful party might end up having subsidized a large segment of the losing party's suit against them. While that prospect might be. consonant with the goals of a statute authorizing fee awards to any party, we find it contrary to the purposes of one that provides for awards only to the party who prevails. -It follows that since Ms. Grubbs has yet to demonstrate discrimination, an. award of counsel fees would be. inappropriate at this time. [548 F.2d at 9763 footnotes omitted. J Judge Bazelon added. that this. result followed even though plaintiff had won.a significant procedural victory in her appeal: . Ms. Grubbs. has. won a significant procedural victory, simplifying the path that victims of discrimination by :Government agencies. must. follow to vindicate their Title VII rights. If Ms.. Grubbs succeeds in proving discrimination, the work for which she now claims fees would then be compensable and the magnitude of the procedural victory would be a factor in determining the extent of that compensation. She must, how- ever, move closer to the’end of this litigation before an award is appropriate. [548 F.2d at 977; footnote omitted.] Clearly, the award of attorneys' fees as costs on this appeal conflicts with both the statutory language and the decision of the Court of Appeals for the District of Columbia. The public interest cannot tolerate a result under which Government employees, sued for actions they took in the performance of their duties, are assessed attorneys' fees simply because factual questions are presented con= " cerning the legality of their conduct. If Government employees must pay attorneys’ fees in such circumstances, they would’ be constrained = BQ =