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08/27/76 William E. Moten, Sr., Et v. Bricklayers

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


August 27, 1976

WILLIAM E. MOTEN, SR., ET AL

v.

BRICKLAYERS, MASONS AND PLASTERERS INTERNATIONAL UNION OF AMERICA, ET AL., ANTHONY IZZO COMPANY, INC., APPELLANT; WILLIAM E. MOTEN, SR., ET AL.

v.

BRICKLAYERS, MASONS AND PLASTERERS INTERNATIONAL UNION OF AMERICA, ET

Leventhal and Robinson, Circuit Judges.

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

AL. MASON CONTRACTORS

ASSOCIATION OF THE

DISTRICT OF

COLUMBIA, APPELLANT

No. 74-1835, No. 74-1837

Reported at: 543 F.2d 224 at 239. 1976.CDC.197

Date Reported: Original Opinion of May 6, 1976 at: 543 F.2d 224.

APPELLATE PANEL:

PER CURIAM DECISION

On Motion to Tax Attorneys Fees Against Appellant in No. 74-1837 (Civil 2329-71).

Moten, in behalf of a class of black bricklayers, brought an action against the Unions under Title VII of the Civil Rights Act of 1964. The action against the Unions *fn1 resulted in a settlement. The District Judge approved the settlement preliminarily and scheduled a hearing. Objections to the settlement were presented in the District Court, and appeals were taken to this court, by an employer, Izzo, No. 74-1835, who sought to intervene as a party defendant, and also by an employer's association, Mason Contractors Association, No. 74-1837, which presented objections without formally presenting a motion to intervene. *fn2 Both Izzo and the Association were represented by the same law firm. Moten, et al., as appellees, filed a motion to dismiss or for summary affirmance as to Izzo, and a motion to dismiss the appeal of the Association for lack of jurisdiction.

On May 6, 1976, we issued an opinion. We easily dismissed the Association's appeal for want of jurisdiction, since it had not sought to be made a party and was therefore treated as no more than an amicus curiae. There was more difficulty in regard to Izzo's appeal, and there we affirmed the settlement order of the District Court, which included a provision denying Izzo's application for intervention.

Moten, et al. now present a motion under the Act, 42 U.S.C. 2000e-5(k), to tax attorneys' fees and other costs against the Association respecting No. 74-1837. The attached bill shows a modest sum, approximately $200.00, as costs, but claims attorneys' fees for services rendered in connection with both appeals at $6,787.50, and for services rendered in connection with the motion to tax attorneys' fees and costs at $2,300.00. Both calculations reflect time of the partner involved at $75 per hour, and time of associates of the law firm at $50 per hour. No award is sought from Izzo, appellant in No. 74-1835, because Izzo has made a lump sum payment in connection with settlement of the Kimber suit, which eliminates liability for costs and fees in Moten's action. The plaintiffs seek an award from the Association of 50% of the fees and costs incurred in connection with the appeals.

The first question is whether any attorneys' fees are taxable against the Association under Title VII, since the Association was not a "party." But the Association purported to become a party appellant when it filed its appeal, and the plaintiffs were compelled to defend against its efforts in order to maintain their hard-won settlement agreement. This is not a situation in which the court is being asked to enter an award against a person which has in no way entered its name upon the court records. We think the liberal purposes of 42 U.S.C. ยง 2000e-5(k) are furthered by, and provide authority for, an award against the Association. *fn3

The Association's opposition to the motion to tax costs brings out that the appellees' pleadings show six pages of text devoted to the appeal of the Association as against 49 pages for Izzo's appeal; and that the court's opinion uses only one page for the Association's appeal as against 29 pages for Izzo's appeal. These data are not controlling, but they are a backdrop for our more qualitative appraisal. We have taken note of appellees' claim that it is not feasible to separate out the work done on the two appeals. But we have little doubt that it was the appeal of Izzo which prompted the extensive efforts of appellees' counsel, including the cross-references to the separate Kimber litigation against Izzo by a class of employees overlapping Moten's, and considerable discussion of the merits. If it had not been for Izzo's appeal, the appeal by the Association would have been dismissed summarily, on bare motion papers, without reference to the merits, and without oral argument. Appellees are not to be limited to the purely incremental costs occasioned by the Association, but we think any fair allocation and appraisal cannot reach a 50% mark.

This is a matter that the appellate court deems appropriate to determine at the appellate level, cf. Freeman v. Ryan, 133 U.S. App. D.C. 1, 408 F.2d 1204 (1968). The crucial facts involved pertain to the handling of the appellate litigation, and that matter is marked by neither a mixture of district court and appellate litigation nor issues requiring an evidentiary hearing.

We exercise our judgment by ordering that the Clerk enter an order taxing against the Association (a) the allowable costs incurred by appellees in No. 74-1837, *fn4 (b) 15% of the $6,787.50 calculated by appellees' counsel as appropriate fees for attorneys' services rendered on the combined appeals; plus (c) an additional $300 for necessary services in preparing the motion to tax attorneys' fees.

So ordered.


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