Comwlth. v. Flaherty ( 1994 )

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
11-3-1994
Comwlth. et al. v. Flaherty, et al.
Precedential or Non-Precedential:
Docket 94-3211
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"Comwlth. et al. v. Flaherty, et al." (1994). 1994 Decisions. Paper 177.
http://digitalcommons.law.villanova.edu/thirdcircuit_1994/177
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 94-3211
_______________
COMMONWEALTH OF PENNSYLVANIA and
GUARDIANS OF GREATER PITTSBURGH, INC.,
individually and on behalf of its members
and on behalf of all others similarly situated;
NATIONAL ASSOCIATION FOR THE ADVANCEMENT
OF COLORED PEOPLE - PITTSBURGH BRANCH,
individually and on behalf of its members
and on behalf of all others similarly situated;
NATIONAL ORGANIZATION FOR WOMEN -
SOUTHWESTERN PENNSYLVANIA COUNCIL OF CHAPTERS,
individually and on behalf of its members and
on behalf of all others similarly situated and
DONALD ALLEN; BENJAMIN ASHE; JEROME AZIZ;
RICHARD HURT; ADAM KINSEL; LYNWOOD SCOTT and
RICHARD STEWART, individually and on behalf
of all others similarly situated;
J. TERESE DOYLE, individually and on behalf
of all others similarly situated;
CHERYL EDMONDS; ROSE MITCHUM; LINDA ROBINSON;
JOANNE ROWE; DEBORAH SMITH and GLORIA VANDA,
individually and on behalf of all
others similarly situated;
HARVEY ADAMS; MACK HENDERSON; THEODORE SAULSBURY and
CHARLES TARRANT, individually and on behalf
of all others similarly situated;
GLADYS SMITH, Individually and on behalf
of all others similarly situated
v.
PETER F. FLAHERTY, Mayor of the City of Pittsburgh
and Acting Director of the Department of
Public Safety of the City of Pittsburgh;
ROBERT J. COLL, Superintendent of the City of
Pittsburgh Bureau of Police;
STEPHEN A. GLICKMAN, President of the
City of Pittsburgh Civil Service Commission;
ALBERT STATTI and EDWARD L. ENGLISH,
Members of the City of Pittsburgh Civil Service Commission;
MELANIE J. SMITH, Secretary and Chief Examiner
of the City of Pittsburgh Civil Service Commission; and
CITY OF PITTSBURGH, all individually and
in their official capacities
v.
COMMONWEALTH OF PENNSYLVANIA
FRATERNAL ORDER OF POLICE
(Intervenor in D.C.)
(D.C. Civil No. 75-162)
MICHAEL C. SLATER
v.
CITY OF PITTSBURGH, a municipal corporation
(D.C. Civil No. 90-457)
CHARLES H. BOEHM; PAUL G. CLARK and
RICHARD USNER, on behalf of themselves
and all others similarly situated
v.
SOPHIE MASLOFF, MAYOR OF THE CITY OF PITTSBURGH;
MELANIE J. SMITH, DIRECTOR OF PERSONNEL OF THE
CITY OF PITTSBURGH; THE PITTSBURGH CIVIL SERVICE
COMMISSION and THE CITY OF PITTSBURGH
(D.C. Civil No. 90-629)
Commonwealth of Pennsylvania, Appellant
_______________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Nos. 75-cv-00162;
90-cv-00457; and 90-cv-00629)
_______________
Argued September 20, 1994
Before: BECKER and COWEN, Circuit Judges
and POLLAK*, District Judge
(Filed November 15 , 1994)
_______________
*Honorable Louis H. Pollak, United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
Thomas F. Halloran, Jr. (argued)
Office of the Attorney General
of Pennsylvania
564 Forbes Avenue
Manor Complex, 4th Floor
Pittsburgh, PA 15219
COUNSEL FOR APPELLANT
COMMONWEALTH OF PENNSYLVANIA
Samuel J. Cordes (argued)
Ogg, Jones, DeSimone & Ignelzi
245 Fort Pitt Boulevard
Pittsburgh, PA 15222
COUNSEL FOR APPELLEES
PAUL G. CLARK AND
RICHARD USNER, on behalf of
themselves and all others similarly
situated
Lorina W. Wise
City of Pittsburgh
Department of Law
3l3 City County Building
Pittsburgh, PA 15219
COUNSEL FOR APPELLEES
CITY OF PITTSBURGH, all individually
and in their official capacities
Ronald D. Barber (argued)
Strassburger, McKenna, Gutnick & Potter
322 Boulevard of the Allies, Suite 700
Pittsburgh, PA 15222
COUNSEL FOR APPELLEES
DANIEL A. DULSKI AND
MICHAEL A. BENNER
_______________
OPINION OF THE COURT
_______________
COWEN, Circuit Judge.
The Commonwealth of Pennsylvania, the original plaintiff in
this matter, appeals from the order of the district court
awarding attorney's fees against it pursuant to 42 U.S.C. § 1988
or, alternatively, pursuant to Federal Rule of Civil Procedure
41(b). Because the lawsuit filed by the Commonwealth was not
frivolous, unreasonable, or without foundation and because the
Commonwealth did not fail to prosecute its case, we will reverse
the award of attorney's fees against the Commonwealth.
I. Factual and Procedural Background
In 1975, the Commonwealth of Pennsylvania ("Commonwealth")
filed suit under 42 U.S.C. §§ 1981 and 1983 against the City of
Pittsburgh ("City") alleging, inter alia, discrimination in the
hiring of minority applicants by the Police Department of the
City of Pittsburgh. Following a hearing the district court made
findings that the City had virtually eliminated the hiring of
minority applicants as police officers. The district court
entered a preliminary injunction requiring the City to hire one
white female, one African-American male, and one African-American
female for every white male that it hired. The City did not
appeal from the preliminary injunction order.
In 1977, the Fraternal Order of Police, an intervening
defendant, moved to dissolve the injunction. The application was
denied by the district court because the Fraternal Order of
Police lacked standing. In 1984, a white male applicant who had
continually applied for a position as a Pittsburgh police officer
since 1975 moved to intervene in this action in order to
challenge the preliminary injunction. The district court denied
the application, and we affirmed the order of the district court.
Finally, in 1990, Paul Clark, Richard Usner, Michael Benner, and
Daniel Dulski ("intervening defendants"), white male applicants,
filed two separate complaints against the City of Pittsburgh and
its officials challenging the hiring system imposed by the
preliminary injunction. The district court consolidated the
cases thereby making these parties intervening defendants to the
original suit between the Commonwealth and the City.
In March of 1991 the district court granted the intervening
defendants' motion to dissolve the injunction and denied the
intervening defendants' motion to dismiss for failure to
prosecute. The Commonwealth appealed the dissolution of the
injunction to this Court. We dismissed the appeal as moot when
the district court granted partial summary judgment in favor of
the intervening defendants on the claim of discrimination in the
hiring of police officers.
The district court also granted intervening defendants'
petitions for attorney's fees incurred in obtaining the
dissolution of the injunction, assessing 75% of the fees against
the plaintiff Commonwealth and 25% against the defendant City of
Pittsburgh. In making this award of attorney's fees, the
district court realigned the parties. The intervening defendants
were treated as plaintiffs and the plaintiff Commonwealth and
defendant City were deemed defendants for the purpose of awarding
fees under 42 U.S.C. § 1988. Commonwealth v. Flaherty, Nos. 75-
162, 90-457, 90-629, slip op. at 15 (W.D. Pa. Sept. 9, 1991).
The order granting the intervening defendants' motion for
summary judgment and denying their motion to dismiss the original
complaint for failure of the Commonwealth to prosecute was
affirmed on appeal. The appeal of the attorney's fees award was
dismissed because the fee award had not been quantified and
therefore was not a final order. Commonwealth v. Flaherty, 983
F.2d 1267, 1277 (3d Cir. 1993). Subsequently, the district court
quantified the attorney's fees requested by the intervening
defendants at $ 80,000.00, and the Commonwealth was required to
pay 75%, or $ 60,000.00. The City was ordered to pay 25%, or
$20,000.00. Flaherty, slip op. at 3-4 (March 17, 1994).
Although the City has entered an appearance in this appeal, it
has not filed a brief nor sought oral argument. This appeal by
the Commonwealth followed.
II. Discussion
A. Award of Attorney's Fees Under 42 U.S.C. § 1988
The district court awarded $ 60,000.00 in attorney's fees in
favor of the intervening defendants and against the Commonwealth.
This Court has previously stated that, "[w]e must defer to the
district court's fee determination unless it has erred legally,
or the facts on which the determination rests are clearly
erroneous." Quiroga v. Hasbro, Inc., 934 F.2d 497, 502 (3d
Cir.)(citations omitted), cert. denied, __ U.S. __, 112 S. Ct.
376 (1991). We conclude that the district court erred as a
matter of law in realigning the parties, thus failing to apply
the rule that fees cannot be awarded against a plaintiff absent a
finding that the suit was frivolous, unreasonable, or without
foundation.
The general rule in the United States is that absent
legislation to the contrary, litigants must bear their own
attorney's fees. See Alyeska Pipeline Service Co. v. Wilderness
Society, 421 U.S. 240, 247, 95 S. Ct. 1612, 1616 (1975). The
statutory authority for awarding attorney's fees in § 1983 cases
is set forth in 42 U.S.C. § 1988(b). That section provides,
"[i]n any action or proceeding to enforce a provision of sections
1981 . . . [or] 1983 . . . of this title . . . the court, in its
discretion, may allow the prevailing party . . . a reasonable
attorney's fee as part of the costs." 42 U.S.C. § 1988(b) (1988
& Supp. V 1993). The standard to be used in determining whether
a request for attorney's fees by a prevailing defendant should be
approved is set forth in Christiansburg Garment Co. v. EEOC, 434
U.S. 412, 98 S. Ct. 694 (1978). In that case, the Supreme Court
held that "a district court may in its discretion award
attorney's fees to a prevailing defendant in a Title VII case
upon a finding that the plaintiff's action was frivolous,
unreasonable, or without foundation, even though not brought in
subjective bad faith." Id. at 421, 98 S. Ct. at 700. Although
Christiansburg Garment dealt with Title VII fee awards, the
Supreme Court has subsequently indicated that "[t]he legislative
history of § 1988 indicates that Congress intended that ``the
standards for awarding fees be generally the same as under the
fee provisions [contained in Title VII] of the 1964 Civil Rights
Act.'" Hensley v. Eckerhart, 461 U.S. 424, 433 n.7, 103 S. Ct.
1933, 1939 n.7 (1983). Thus, the analysis adopted by
Christiansburg Garment in determining whether to award attorney's
fees to a prevailing party is equally applicable to the matter
before us.
In Christiansburg Garment, the prevailing party was a
defendant, whereas in the case at bar the prevailing parties are
intervening defendants. The question whether an intervening
defendant may also be considered a prevailing party entitled to
an award of attorney's fees is not free from doubt. We are
prepared to assume, arguendo, that the answer is in the
affirmative. See Donnell v. United States, 682 F.2d 240, 245-249
(D.C. Cir. 1982), cert. denied, 459 U.S. 1204, 103 S. Ct. 1190
(1983). However, for the reasons given in Donnell, we would
think that such an award would be justified only where the
intervening defendant had clearly made a substantial contribution
to the successful result. And, in any event, the district
court's discretionary award of attorney's fees would be justified
only in those situations where, under the Christiansburg Garment
standard, the plaintiff's "claim was frivolous, unreasonable, or
groundless, or [when] the plaintiff continued to litigate after
it clearly became so." 434 U.S. at 422, 98 S. Ct. at 701.
Plaintiff argues that the award of attorney's fees by the
district court in favor of the intervenors and against the
plaintiff is erroneous as a matter of law because it is contrary
to controlling Supreme Court precedent. In the case at bar, the
district court did not arrive at its decision to award attorney's
fees by applying the standard as set forth in Christiansburg
Garment above. Rather, the district court stated:
To award attorney fees to a prevailing intervenor
against a civil rights plaintiff . . . would appear to
penalize a plaintiff without a finding that his or her
claim was frivolous, unreasonable or groundless. We
found, however, that doing so in this case would
further the underlying purpose behind awarding attorney
fees in civil rights actions . . . .
Flaherty, slip op. at 4 (August 23, 1993) (citing Flaherty, slip
op. at 13, 17 (Sept. 9, 1991)). The district court acknowledged
that it never made findings that the plaintiff's claim was
frivolous, unreasonable or groundless. Instead, the district
court reasoned that it would be proper to realign the parties and
treat the Commonwealth as a defendant for fee award purposes
because it would further the congressional goal of attacking
discrimination by encouraging civil rights lawsuits. Flaherty,
slip op. at 17 (Sept. 9, 1991).
The district court decided to treat both the City as well as
the Commonwealth as civil rights defendants because both entities
assumed identical postures when they allowed the injunction to
exist indefinitely and left in place discriminatory hiring
practices pursuant to what intervening defendants characterized
as an unconstitutional quota system. Flaherty, slip op. at 15
(Sept. 9, 1991). Additionally, the district court concluded that
the plaintiff Commonwealth assumed characteristics of a defendant
by opposing the intervention of other parties. Id. We see no
reason for the Commonwealth to be realigned as a defendant. The
status of the Commonwealth as a plaintiff seeking a civil rights
remedy was not diminished or changed simply by reason of its not
seeking to obtain a permanent injunction after a preliminary
injunction had been granted, nor by its objecting to the
intervention of other parties.
While it is true that awarding attorney's fees to prevailing
intervening defendants will undoubtedly encourage some civil
rights lawsuits, we believe that the analysis undertaken by the
district court fails to adequately account for the detriment
caused by awarding attorney's fees against plaintiffs whose
claims are not frivolous, unreasonable, or groundless. To accept
the reasoning of the district court would require us to expand
the rule of Christiansburg Garment to allow the award of
attorney's fees to defendants in cases even where a plaintiff's
claim is meritorious. Intervening defendants advocate a rule
that would award attorney's fees against a plaintiff who, in the
context of a preliminary or permanent injunction, succeeds on the
merits, but then fails to notify the court when the injunction
may no longer be valid as a result of a change in the law. We
cannot accept such an award structure.
Intervening defendants' sole argument is that absent an
award of attorney's fees, civil rights suits will be chilled
because similarly situated potential intervenors will not
initiate court proceedings. We do not believe there is force in
such an argument. Potential intervenors will continue to
initiate court proceedings because the intervenor will always be
in a position to seek attorney's fees from the defendant who is
unsuccessful. Additionally, under the intervening defendants'
scheme, any gains which may be achieved by awarding fees to
intervening defendants might be eroded by the chilling effect
that such a rule of law would have on potential plaintiffs. The
uncertainty created by such a rule might discourage some
plaintiffs from filing suit for fear that even if they initially
prevail in the lawsuit, they may ultimately be liable for
attorney's fees. The most efficient way to balance the competing
concerns of encouraging potential intervenors to intervene and
simultaneously not discouraging plaintiffs from filing suit in
the first instance is to continue to take advantage of the fee
award structure that already exists, namely to award fees to the
prevailing party and against the losing defendant.
In this case, the City of Pittsburgh failed to challenge a
legally questionable preliminary injunction, and allowed it to
remain in effect for over fifteen years. If the district court
in the first instance had ordered the City of Pittsburgh to pay
100% of the attorney's fees, then the dual purposes of
encouraging civil rights litigation by intervenors yet not
chilling a plaintiff from filing suit would have been served. As
the district court noted, "[r]equiring the original plaintiff in
a civil rights action to pay a portion of the Intervenors'
attorney fees is, perhaps, unprecedented." Flaherty, slip op. at
7 (August 23, 1993). We decline to expand the rule of
Christiansburg Garment and create such precedent. A prevailing
party may still only recover against a plaintiff in a civil
rights suit where plaintiff's suit is frivolous, unreasonable, or
groundless.
B. Award of Attorney's Fees as an Alternative to Dismissal
Under Federal Rule Of Civil Procedure 41(b)
The district court also held that an award of attorney's
fees was justified as an alternative sanction to dismissing the
case for failure to prosecute. Accordingly, although we find
that the award of attorney's fees was not proper under 42 U.S.C.
§ 1988, we must also consider whether an award is appropriate as
an alternative to dismissal under Federal Rule of Civil Procedure
41(b). Our review of the district court's fee award, where no
facts are in dispute, is plenary. Quiroga, 934 F.2d at 502.
The Commonwealth argues that nothing in the language of Rule
41(b) provides for an award of attorney's fees as an appropriate
alternative to dismissing a case. Although a district court may
impose attorney's fees as a sanction under its inherent power,
see Roadway Express, Inc. v. Piper, 447 U.S. 752, 765-66, 100 S.
Ct. 2455, 2463-64 (1980), there must be some factual predicate
which would indicate that the plaintiff was less than diligent in
either prosecuting its case or complying with a court order. See
Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863, 869 (3d
Cir. 1984) (award of attorney's fees would be proper in light of
dilatoriness of plaintiff's counsel). We must thus decide
whether the district court erred in finding this sanction
appropriate.
In support of its alternative justification for awarding
attorney's fees, the district court noted the following concerns:
(1) the Commonwealth's failure to prosecute the action and seek a
final adjudication on the merits in light of new Supreme Court
precedent, thus allowing what had become a legally questionable
preliminary injunction to remain the status quo for over fifteen
years; and (2) the Commonwealth's failure to urge the district
court to review the City's efforts at eliminating discriminatory
hiring practices. Flaherty, slip op. at 14-15 (September 9,
1991). Thus, from the record before us, it appears that the
district court pointed to the exact same conduct of the
Commonwealth when awarding attorney's fees under Rule 41(b) as it
did when awarding attorney's fees under 42 U.S.C. § 1988.
We cannot conclude that the Commonwealth's conduct was
dilatory or an exercise of bad faith. First, we do not think it
a prudent rule to require a plaintiff who prevails on a
preliminary injunction matter to run to the courthouse every time
he or she suspects that the legal support for the injunction may
have been undermined by recent caselaw. Second, the City, rather
than the Commonwealth, would have been the appropriate entity to
petition the district court to review the police department's
attempts to eliminate its discriminatory hiring practices.
Because the Commonwealth was not legally accountable for
allowing the preliminary injunction to remain in place in excess
of fifteen years, there is no justification based on the
undisputed facts in the record for awarding attorney's fees as an
alternative to dismissal. The district court erred as a matter
of law in awarding attorney's fees as an alternative to dismissal
under Rule 41(b).
III. Conclusion
We will reverse the district court's award of attorney's
fees in favor of the intervening defendants and against the
plaintiff Commonwealth of Pennsylvania. The district court erred
in awarding attorney's fees against a plaintiff in a civil rights
suit without finding that the plaintiff's suit was frivolous,
unreasonable, or without foundation. The district court also
erred by realigning the plaintiff Commonwealth as a civil rights
defendant for the purpose of awarding attorney's fees. In
addition, the facts of this case do not warrant an award of
attorney's fees against the plaintiff as an alternative to a Rule
41(b) dismissal.
_____________________________