United States District Court, Southern District of New York
November 16, 1999
RAY RUSSELL, ANGELO RAINALDI, JOHN GULIC, AND EDWARD HESS, PLAINTIFFS,
THE BOARD OF PLUMBING EXAMINERS OF THE COUNTY OF WESTCHESTER AND THE COUNTY OF WESTCHESTER, DEFENDANTS.
The opinion of the court was delivered by: Brieant, District Judge.
MEMORANDUM & ORDER
By motion filed on October 13, 1999, fully submitted and heard
on November 5, 1999, defendants Board of Plumbing Examiners of
the County of Westchester and the County of Westchester move for
reconsideration of the portions of the Court's Order of September
28, 1999, which award fees for amicus curiae, United Plumbers
of Westchester, Inc., a trade association comprised of Master
Plumbers operating in Westchester County, as a prevailing party,
and declare Defendants in violation of § 7(a) of the Privacy Act.
Plaintiff filed answering papers agreeing to the need for
clarification of the § 7(a) issue and declining to take a
position on the fee issue. Amicus curiae United Plumbers of
Westchester, Inc. filed opposition papers on November 1, 1999.
Defendants filed reply papers on October 28, 1999.
By Memorandum and Order dated September 28, 1999, this Court
granted summary judgment for Plaintiff on its Privacy Act Claims.
Familiarity with this decision is assumed. In that opinion this
Court held that Plaintiffs and the amicus curiae were
prevailing parties at least in part and are entitled to
reasonable legal fees upon submission of supporting
Defendants now argue that as a matter of law amicus curiae
are not entitled to fees under 42 U.S.C. § 1988. Defendants also
claim that the Court's decision is contradictory as to
Defendants' violation of § 7(a) of the Privacy Act.
Reconsideration and re-argument is appropriate because
Defendants did not have the opportunity to argue whether the
amicus curiae is entitled to fees.*fn1
Defendants argue that amicus curiae can not be considered a
prevailing party for purposes of awarding attorney's fees. Their
brief, however, supports this contention only with a Southern
District of New York decision and a single decision of the Fifth
Circuit [Morales v. Turman, et. al., v. American
Orthopsychiatric Association et al., 820 F.2d 728 (5th Cir.
1987)]. That latter case has been cited only four times in the
twelve years since it was decided and does not represent Second
Circuit authority. The Southern District case, Patricia Cosgrove
v. Sears, Roebuck and Co., 1996 WL 99390 (1996), states that
"there is no authority in this Circuit awarding fees for an
amicus." Id. at *4-5. As its support for this proposition, the
Cosgrove decision cites Wilder v. Bernstein, 965 F.2d 1196
(2d Cir. 1992). The Wilder decision, however, concerned fees
for intervenors, and discussed amicus curiae only in dicta.
Id. at 1203 ("ruling that present intervenors are prevailing
parties will not open the flood-gates to amicus curiae, good
samaritans [sic], or even litigious meddlers so that they may
`team up' and overburden the non-prevailing party with excessive
Neither Cosgrove nor Wilder may be read as a flat holding
that such fees are barred as a matter of law. In any event,
insofar as concerns Cosgrove, this Court is not required to
follow the decisions of coordinate
district judges. See United States v. Birney, 686 F.2d 102, 107
(2d Cir. 1982) ("Thus, judges of coordinate jurisdiction are not
bound by each others rulings, but are free to disregard them if
they so choose."); see also Gasperini v. Center For Humanities,
Inc., 518 U.S. 415, 430 n. 10, 116 S.Ct. 2211, 135 L.Ed.2d 659
(1996) ("If there is a federal district court standard, it must
come from the court of appeals, not from the over 40 district
court judges in the Southern District of New York, each of whom
sits alone and renders decisions not binding on the others.").
The amicus curiae in this case, the United Plumbers of
Westchester, Inc., is a trade association whose members are
vitally interested in the issues which were before the Court. Its
counsel contributed to the Plaintiffs' victory. This rationale is
sufficient to justify reasonable compensation and blurs any
technical distinction between intervenors and amici.
Participation as amicus curiae, as opposed to becoming an
intervenor, is appropriate when the party cares only about the
legal principles of the case, and has no personal, legally
protectable interest in the outcome of the litigation. Moore's
Federal Practice Digest 3d § 24.23. Here, the amicus
probably has such an interest, and could have sought
intervention, but chose to appear as amicus. The primary role
of the amicus is to assist the Court in reaching the right
decision in a case affected with the interest of the general
public. The amicus cannot raise or implicate new issues that
have not been presented by the parties. The amicus cannot
assume a fully adversarial position, and is precluded from
engaging in adversarial activities such as motions to compel.
Moore's 3d. § 327.11. Nor may the amicus take an appeal. The
Court has the discretion to determine the extent and manner of
the participation of an amicus. United States v. Hooker
Chemicals & Plastics Corp., 749 F.2d 968, 992 (2d Cir. 1984).
A court can allow amici to call their own witnesses and cross
examine the witnesses of other parties, but need not do so. An
intervenor, on the other hand, can act in every way like a party.
An intervenor can, but an amicus cannot, block settlements by
refusing to sign, take discovery, make independent motions, or
The present case did not reach a stage where the differences
between an amicus and an intervenor would matter. Amicus here
did not have need to seek independent discovery or make
additional motions since it was foreseeable that the lawsuit
would be resolved as a matter of law. No settlement was
negotiated. Had this case proceeded to trial, amicus then could
have chosen to seek leave to intervene.
In the circumstances of this case there is no reason why the
amicus should not be treated the same as an intervenor, and
fairly compensated. To do so will not open the flood-gates to
litigious meddlers as the Wilder court feared.*fn2
Defendants also claim that this Court held improperly that they
violated § 7(a) of the Privacy Act. Section 7(a) states that:
It shall be unlawful for any Federal, State or local
government agency to deny to any individual any
right, benefit, or privilege provided by law because
of such individual's refusal to disclose his social
security account number.
Defendants point to the portions of the Court's decision which
recognize that individuals, including plaintiff Russell, were
able to receive a County-wide license without actually submitting
their W-2 tax form or Social Security number. Defendants claim
that this fact contradicts and precludes a finding that
§ 7(a). While it is true that some individuals were able to
receive their license without submitting their Social Security
number, an ordinary person following the published instructions
issued by Defendants would not have known that this was possible.
The submission of W-2 forms and Social Security numbers as part
of the application process was presented to the public as a
requirement, not an option. The fact that this requirement was
not enforced against those individuals diligent enough to
question its validity is of no relevance.
For the foregoing reasons, amicus curiae remains entitled to
attorney's fees as a partially prevailing party. The fee award is
extended to include time spent defending the fee award portion of
this motion, and counsel for the amicus may submit evidence of
the total lodestar.
The Court also adheres on re-argument to its prior decision
that Defendants violated § 7(a) of the Privacy Act.