EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellee, v. CHRISTIANSBURG GARMENT COMPANY, INC., Appellant

FIELD, Senior Circuit Judge:

After successfully defending an action brought against it by the Equal Employment Opportunity Commission (Commission) under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq., (Supp.1972), Christiansburg Garment Company, Inc., (Christiansburg) petitioned the district court for an allowance of attorney’s fees under Section 706(k) of the Act, 42 U.S.C. § 2000e-5(k). The petition was denied and Christiansburg has appealed.

On February 1, 1968, Rosa C. Helm, a black employee of Christiansburg, was laid off from her job in petitioner’s plant in Christiansburg, Virginia. She returned to work about one month later, and in May of 1968 filed a charge with the Commission alleging racial discrimination in her one-month lay off. The charge was processed and investigated by the Commission and by letter dated February 11, 1970. Christians-burg was advised that there was reasonable cause to believe that it had engaged in employment practices violative of Title VII. Attempts at conciliation were unsuccessful, and by letter of July 1, 1970, the Commission notified Mrs. Helm of her right to sue. Mrs. Helm, however, did not exercise her right within the thirty day statutory period.¹

Under the 1972 Amendments to the Civil Rights Act of 1964 which became effective on March 24, 1972,² the Commission was authorized to bring suit in its own name to secure compliance with Title VII, and in December of 1973 the Commission notified Christiansburg that it intended to pursue Mrs. Helm’s claim. Attempts to resolve the controversy failed and the Commission instituted suit in the district court against Christiansburg on January 25, 1974. After discovery proceedings were concluded, Christiansburg filed a motion for summary judgment. The district court, holding that the Commission had no authority to prosecute the action under the 1972 Amendments, granted the summary motion on the basis that Mrs. Helm’s claim was not pending with the Commission on the effective date of the 1972 Amendments as required by Section 14 thereof.³ The court concluded that when Mrs. Helm was notified on July 1, 1970, of her right to bring suit against Christiansburg there was no further action to be taken by the Commission with respect to her charge and, accordingly, its authority terminated on that date.⁴ The Commission did not appeal from this judgment.

In July of 1975, Christiansburg filed its petition for attorney’s fees pursuant to Section 706(k) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(k), which provides:

“In any action or proceeding under this subchapter 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.”

The district court denied the petition, stating that the Commission’s action in bringing the suit could not be characterized as unreasonable or meritless, and that it represented a good faith effort by the Commission to discharge the duties assigned to it by Congress under the Civil Rights Act.

While the Commission took the position in the district court that Section 706(k) does not authorize an award of attorney’s fees against it, it now concedes that the district court had such authority under the statute. In making this concession, it recognizes the authority of United States Steel Corporation v. United States, 519 F.2d 359 (3 Cir. 1975), and Van Hoomissen v. Xerox Corporation, 503 F.2d 1131 (9 Cir. 1974), with which we are in accord. The Commission also concedes that Christiansburg was the prevailing party in this litigation, but contends, however, that the district court acted properly in denying attorney’s fees in this case. Christiansburg, on the other hand, takes the position that the court applied an erroneous standard in rejecting its petition.

In private Title VII suits, where the suing party is, in effect, a “private attorney general,” attorney’s fees are normally awarded to a successful plaintiff upon the basis that such a policy will further the Congressional goal of eliminating discriminatory practices in employment. We so held in Robinson v. Lorillard Corporation, 444 F.2d 791 (1971), and Lea v. Cone Mills Corporation, 438 F.2d 86 (1971), where we applied the rationale of Newman v. Piggie Park Enterprises, 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968), in Title VII litigation. However, these policy considerations which support the award of fees to a prevailing plaintiff are not present in the case of a prevailing defendant. The distinction between the two was noted by Judge Adams in United States Steel Corporation v. United States, supra, 519 F.2d, at 364:

“A prevailing defendant seeking an attorney’s fee does not appear before the court cloaked in a mantle of public interest. In contrast to the advantage to the public that inheres in a successful attack against discriminatory practices, as in Piggie Park, one cannot say as a general rule that substantial public policies are furthered by a successful defense against a charge of discrimination. Instead, a defendant seeking a counsel fee under Section 706(k) must rely on different equitable considerations.”⁵

Christiansburg acknowledges that its posture is different from that of a successful party plaintiff, but contends that the reasonableness of the Commission’s conduct in pursuing the litigation should be the controlling standard rather than the good faith test which was applied by the district court. It suggests that “good faith” is a highly subjective standard that is inappropriate in the determination of attorney’s fees. The good faith standard, however, has been often recognized by the courts, and has acquired a well-defined meaning in this context.⁶ It was approved by the court in United States Steel Corporation v. United States, supra, 519 F.2d, at 364:

“The indicia associated with the grant of an attorney’s fee — vexatiousness, bad faith, abusive conduct, or an attempt to harass or embarrass — were absent. We do not find the district court’s formulation of the standard to be erroneous.”

It would appear that this same standard was applied by the Ninth Circuit when it allowed attorney’s fees in Van Hoomissen v. Xerox Corporation, supra.⁷

In the present case the district court noted that it had ruled in favor of the Commission on two of the three grounds raised by the petitioner in its motion for summary judgment, and further observed that the interpretation of Section 14 of the 1972 Amendments was an issue of first impression requiring judicial resolution. We agree with the court below that under these circumstances it could not be said that the Commission acted in bad faith in bringing the lawsuit. Accordingly, the action of the district court is affirmed.

AFFIRMED.

1 . 42 U.S.C. § 2000e-5(e).

2 . Pub.L. 92-261, 86 Stat. 103.

3 . Section 14 of Pub.L. 92-261 reads as follows:

“The amendments made by this Act to section 706 of the Civil Rights Act of 1964 shall be applicable with respect to charges pending with the Commission on the date of enactment of this Act and all charges filed thereafter.”

4 . The opinion of the district court appears sub nom., Equal Emp. Op. Com’n v. Christiansburg Garment Co., Inc., 376 F.Supp. 1067 (W.D.Va.1974).

5 . In that case, like the one presently before us, the Commission was a litigating party. The distinction would apply, a fortiori, in those actions brought by private parties. See Wright v. Stone Container Corp., 524 F.2d 1058 (8 Cir. 1975).

6 . See Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 245 & 258, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975).

7 . In denying rehearing in that case the court stated:

“The court in allowing attorney’s fees was mindful that the appeal by EEOC was vexatious and prosecuted on highly questionable grounds.” Unpublished Order (9 Cir. No. 74-1037, Nov. 6, 1974).