Appeal from an order of the Western District of New York, John T. Curtin, Chief Judge, denying an award of reasonable attorneys' fees to defendants-intervenors who prevailed in civil rights actions instituted by appellees which were found to be unreasonable and vexatious. The actions attacked as discriminatory a prior consent decree obtained by appellants in an action pursuant to Title VII of the 1964 Civil Rights Act, 42 U.S.C. §§ 2000e, Et seq., with respect to hiring of police officers in the Rochester Police Department. Reversed and remanded.
Before Waterman, Hays and Mansfield, Circuit Judges.
The central issue upon these appeals is whether John Howard, Johnny L. Smith, et al., who successfully defended a consent judgment obtained by them in a prior civil rights action (Howard v. Friedman, Civ.No. 74-234) against attack in the present lawsuits instituted by appellees, which were found by the district court to be "unreasonable and vexatious," may recover their attorneys' fees as costs from those who instituted the new groundless attack. We hold that they are entitled to do so and accordingly reverse an order of the Western District of New York, John T. Curtin, Judge, denying such relief and remand the present cases for further proceedings consistent with this opinion.
The prior lawsuit, Howard v. Freedman, Civ.No. 74-234 (WDNY), which resulted in the consent decree attacked in the present actions, was a class action filed in 1974 in the Western District of New York by an organization of Afro-American police officers and several black and Spanish-surnamed persons interested in obtaining employment by the Rochester, New York, Police Department. The complaint alleged Inter alia that a number of the Department's hiring standards and procedures violated Title VII, other civil rights acts, and the federal Constitution. On the eve of trial and after extensive discovery, the parties agreed to a negotiated consent decree, the principal feature of which was a plan for preferential hiring of members of minority groups. The decree provided that separate sublists of qualified white and minority-group applicants would be maintained, and two persons would be selected from the minority-group sublist for employment for every three persons chosen from the white sublist until 25% Of the police force consisted of members of minority groups. Paragraph 11 of the decree stated that this preferential hiring procedure was "a temporary measure pursuant to federal law Designed to remedy the racially disproportionate impact of prior employment practices." (emphasis supplied) After notice*fn1 and a hearing, Judge Harold P. Burke approved the order on May 12, 1975, as required by Rule 23(e), F.R.Civ.P., and retained jurisdiction over the action for the purpose of entertaining any future applications that might be made by the parties for interpretation, application, or modification of the judgment.
Thereafter the police department began hiring in accordance with the terms of the consent judgment, which caused dissatisfaction among some white applicants attempting to join the force, including those who were to become appellees in the present consolidated actions. In September 1975 and March 1976, three of the latter filed complaints with the New York State Division of Human Rights. However, this state agency, upon ascertaining that the practices complained of were being compelled by a federal court order, concluded that it lacked jurisdiction to award any relief. On June 21, 1976, some thirteen months after entry of the Howard judgment, twelve of those who later became appellees here moved to intervene in that case and to set aside the consent judgment on the ground that it required the police department to engage in unlawful "reverse discrimination." However, Judge Curtin, who had assumed responsibility for Howard, denied the motion for intervention as untimely. An appeal was perfected from that decision, but it was later withdrawn voluntarily.
Appellees next filed the instant separate suits in the Western District of New York. Prate was instituted by the twelve white applicants who had attempted to intervene in Howard and had withdrawn their appeal from Judge Curtin's unfavorable decision on that motion. The plaintiffs in Zavaglia were two other whites who had not participated in any prior proceedings. Both complaints alleged that the examination and hiring procedures under the Howard decree discriminated against appellees in violation of their rights under the Constitution and various statutes, including Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq. After consolidating the cases and allowing appellants to intervene, Judge Curtin dismissed both complaints, 430 F. Supp. 1373. First, he held that Prate and Zavaglia constituted "impermissible collateral attacks" on the Howard judgment; concluding that appellees could properly have obtained relief from the effects of that judgment only by filing a timely motion to intervene in the Howard case. Second, he concluded that appellees' complaints failed to state a cause of action, pointing to our approval of preferential hiring relief as a means of remedying the effects of unlawful past discrimination in Rios v. Enterprise Association Steamfitters Local 638, 501 F.2d 622, 628-30 (2d Cir. 1974). We affirmed the dismissal of the complaints without opinion on Oct. 17, 1977, and the Supreme Court has since denied cert., 436 U.S. 922, 98 S. Ct. 2274, 56 L. Ed. 2d 765 (1978).
With respect to appellants' application for an award of attorneys' fees, Judge Curtin applied the standard governing awards to successful defendants in Title VII cases which we had announced in Carrion v. Yeshiva University, 535 F.2d 722 (2d Cir. 1976). There we held that a plaintiff may be required to pay a successful defendant's fee when the Title VII action is found to be "unreasonable, frivolous, meritless or vexatious." Id. at 727. He concluded that this standard had been met under the circumstances of the present cases, remarking that they could be "considered unreasonable and frivolous" in light of Prate's mere repetition of claims made in the prior untimely motion to intervene and the substantial body of case law upholding remedial schemes providing for preferential hiring. The parties were directed to submit affidavits concerning the proper amount of an award of counsel fees.
After receiving these submissions, however, the lower court retreated from its apparent intention to grant appellants attorneys' fees. While Judge Curtin adhered to his assessment of the merits of the suits brought by the white applicants, remarking that appellants had made "a very strong argument that this case comes within the Carrion rule," he nonetheless refused to award any counsel fees. He concluded:
"(A)fter consideration of the relative position of the parties and the nature of the claims made by the plaintiffs, I find the application for attorney fees should be denied. The burden of paying attorney fees would unfortunately fall on the plaintiffs who were not conversant with the state of law in this area, and not on their counsel who should have been. Therefore, in the exercise of my discretion, I shall deny the motion."
Appellants argue, first, that their request for counsel fees should have been considered under the more favorable standard applicable to successful plaintiffs in civil rights suits, who "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust," Newman v. Piggie Park Enterprises, 390 U.S. 400, 88 S. Ct. 964, 19 L. Ed. 2d 1263 (1968) (per curiam) (Title II); Northcross v. Board of Education, 412 U.S. 427, 93 S. Ct. 2201, 37 L. Ed. 2d 48 (1973) (per curiam) (Emergency School Aid Act of 1972); Albemarle Paper Co. v. Moody, 422 U.S. 405, 415, 95 S. Ct. 2362, 45 L. Ed. 2d 280 (1975) (Title VII). They point out that their role in the cases before us can best be described as that of protecting the enforcement of relief they obtained as plaintiffs in Howard and that the equities underlying their application for counsel fees are little different from those associated with the typical successful minority-group plaintiff. Second, appellants claim that they satisfied even the more stringent test applicable to successful defendants and that the lower court's stated reason for denying them attorneys' fees is improper. Because our agreement with this second contention is dispositive of this appeal, we need not reach appellants' first claim.*fn2
Section 706(k) of Title VII, 42 U.S.C. § 2000e-5(k), provides:
"In any action or proceeding under (Title VII) the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney's fee as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person."
Although this section is phrased in broad, discretionary terms, the Supreme Court has recently held in Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S. Ct. 694, 54 L. Ed. 2d 648 (1978), that "a plaintiff should not be assessed his opponent's attorney's fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so." 434 U.S. at 422, 98 S. Ct. at 701. As the Court noted, this ...