Geier v. Richardson

MERRITT, Circuit Judge,

dissenting.

The Department of Justice as intervening plaintiff, along with other plaintiffs some of whom were represented by the NAACP Legal Defense Fund, prevailed at the liability stage of this Tennessee higher education desegregation case. The defendants lost at this stage of the case. At the remedial stage and after long negotiation, the parties finally entered into a settlement agreement. The Department objected to one provision.

Neither this court nor the court below found that the objections of the Department to this provision were frivolous. The Department objected to one provision of the settlement agreement that appears to require that 75 Tennessee State University African-American students be automatically admitted to graduate programs at other state public universities without regard to the normal admissions process of these institutions. The Department asserted that this requirement of a “racial quota” constitutes “reverse discrimination.” It lost on this point in both the court below and in this court.

Therefore, the important question presented to us is whether an intervening plaintiff (here the Department of Justice acting under its statutory authority to enforce the civil rights laws, 42 U.S.C. § 2000e-6, and its authority to intervene in civil rights actions, 42 U.S.C. § 2000h-2), who has not violated federal civil rights law and has not litigated frivolously, may nevertheless be required to pay attorney’s fees to the other plaintiffs and to the de *1316 fendants who prevailed on the remedial issue. The question of the liability of the United States for attorney’s fees arises because 42 U.S.C. § 2000e-5(k) makes the federal government liable for attorney’s fees to the same extent as a private party.

The case requires us to determine what standard the courts should apply in civil rights litigation when awarding attorney’s fees against an intervening plaintiff who is unsuccessful on one point but generally successful in the case — an intervening plaintiff who has not violated the civil rights of any other party. The court has concluded that fees should be assessed against such an innocent intervenor, whose statutory duty it is to enforce the civil rights laws, under the same standard applied to a losing defendant. The language of the fee shifting statute at issue here, 42 U.S.C. § 1988 , does not answer the question of intervenors because Congress did not take into account the role of inter-venors in civil rights cases or the application of fee shifting to litigation among multiple parties with different interests on individual issues. The historical litigation model Congress had in mind was the standard two-sided lawsuit between a prevailing plaintiff and a defendant who has violated the plaintiff’s civil rights. The fee-shifting portion of § 1988 simply states:

In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318 [20 U.S.C. 1681 et. seq.1 or title VI of the Civil Rights Act of 1964 [42 U.S.C. 2000d et seq.], the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.

42 U.S.C. § 1988 .

My brethren strongly disagree with the position that the Department took on the one “reverse discrimination” remedial issue which it lost. But I can find no neutral principle, policy or rule regarding fee shifting expressed by the court or implicit in its opinion. Although we may disagree with positions taken by the Department of Justice on civil rights issues, neither our general philosophy nor our disagreement with the Department’s views concerning affirmative action articulates a principle concerning fee shifting in multi-party litigation involving intervenors. My brethren apparently believe that a losing intervenor who has violated no one’s civil rights and has made no frivolous claims — even an inter-venor with a statutory duty to enforce the civil rights laws — should be assessed fees as though it were a losing defendant. Not only must the government pay the fees of the NAACP Legal Defense Fund as plaintiff, but it must also pay the fees of the defendants whose segregative educational policies constitute the civil rights violations that gave rise to the finding of liability in the first place.

Treating such an intervening plaintiff as a losing defendant for purposes of fee shifting cannot withstand analysis. If the NAACP Legal Defense Fund had intervened, as it frequently has done, and had lost on a remedial issue because its settlement position on college admissions, if adopted, would potentially violate the rights of Hispanics, women or another group, it would presumably have to pay the fees of all of its adversaries, including the defendants whose violations initiated the lawsuit. The position of the Legal Defense Fund, adopted in whole by the majority, will come back to haunt public interest groups in the future because such groups frequently intervene to assert unsuccessful positions at the liability or remedial stage of public law litigation.

Public law civil rights litigation, like complex, multi-polar, electrical circuits, often creates many points of light and many points of conflict among individuals and groups with different interests. Sometimes the conflicts that arise resemble conflicts in administrative rule making or in the legislative process more than conflicts typically seen in the standard, two-sided lawsuit. See Chayes, The Role of the Judge in Public Law Litigation, 89 Harv. L.Rev 1281 (1976).

Various nonminority employees, prisoners, school children, labor union members, voters, or welfare recipients may intervene *1317 to claim that the relief sought by various minority plaintiffs (African-Americans, Hispanics, women, aliens) would violate their individual or group rights grounded in civil rights, collective bargaining or other laws. Or one minority group may simply be pitted against another. Or an individual with interests different from other parties may intervene to contest the court’s jurisdiction, a particular test of liability or a particular remedy. See, e.g., Reeves v. Harrell, 791 F.2d 1481 (11th Cir.1986), cert. denied, 479 U.S. 1033 , 107 S.Ct. 880 , 93 L.Ed.2d 834 (1987) (non-minority employees intervened claiming that numerical relief sought by minority plaintiffs would violate their rights); Richardson v. Alaska Airlines, Inc., 750 F.2d 763 (9th Cir.1984) (intervening union opposed consent decree reached by plaintiff employee and defendant employer in Age Discrimination in Employment Act suit on grounds that it violated collective bargaining rights); Airlines Stewards & Stewardesses Ass’n Local 550 v. Trans World Airlines, Inc., 630 F.2d 1164 (7th Cir.1980), aff'd sub nom. Zipes v. Trans World Airlines, Inc., 455 U.S. 385 , 102 S.Ct. 1127 , 71 L.Ed.2d 234 (1982) (intervenor union challenged jurisdiction of district court to approve settlement agreement in sex discrimination case because timely charges not filed with the EEOC); United States v. Board of Education of Waterbury, Conn., 605 F.2d 573 (2nd Cir.1979) (plaintiff-intervenor protecting Hispanics’ interest in formulation of school desegregation remedy awarded fees); Zamlen v. City of Cleveland, 686 F.Supp. 631 (N.D. Ohio 1988) (unsuccessful women applicants for fire fighter positions challenged adjustment of test results made under affirmative action plan for hiring of African-Americans and Hispanics); Baker v. City of Detroit, 504 F.Supp. 841 (E.D.Mich.1980), aff 'd sub nom. Bratton v. City of Detroit, 704 F.2d 878 (6th Cir.1983), rev’d on other grounds, 712 F.2d 222 (6th Cir.1983) (minority employees intervened to oppose a suit brought by non-minority employees challenging a voluntary affirmative action program).

In light of the complexity of public law litigation and the room for conflict among various parties and intervenors, we should avoid chaos in fee shifting by adopting a relatively straightforward principle rooted in equity — a principle of reciprocity: Prevailing plaintiffs are entitled to an award but only from losing defendants whose conduct violates their civil rights or from parties who have interjected frivolous motions or arguments. Where no frivolous conduct is found, only those who violate the law should pay the attorney’s fees of plaintiffs whose rights are violated. Parties who have not violated plaintiff’s legal rights should not be required to pay plaintiff’s attorney’s fees.

If fee shifting is imposed on parties who have not violated a “prevailing party’s” substantive legal rights, I can see no way to create neutral or objective principles of law in this area. The process could easily degenerate into the exercise of a standard-less discretion which allows favoritism and visceral reactions to govern. The principle of reciprocity alluded to above goes a long way toward solving this problem. It anchors fee awards to liability for civil rights violations.

This principle of reciprocity is amply supported by law already on the books. The Supreme Court has said that, “when a district court awards counsel fees to a prevailing plaintiff, it is awarding them against a violator of federal law.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 418 , 98 S.Ct. 694, 699 , 54 L.Ed.2d 648 (1978). “[Ljiability on the merits and responsibility for fees go hand in hand.” Kentucky v. Graham, 473 U.S. 159, 165 , 105 S.Ct. 3099, 3104 , 87 L.Ed.2d 114 (1985). The Court has held that no fees may be awarded to a plaintiff who has won the right to a new trial because the plaintiff has not yet established that the defendant violated his civil rights. Hanrahan v. Hampton, 446 U.S. 754 , 100 S.Ct. 1987 , 64 L.Ed.2d 670 (1980). A partially guilty defendant is required to pay attorney’s fees only for those portions of the case on which plaintiff succeeded in establishing civil rights liability. Hensley v. Eckerhart, 461 U.S. 424 , 103 S.Ct. 1933 , 76 L.Ed.2d 40 (1983). Congress would not have “countenanced assessing fees against *1318 a defendant absent any showing of discrimination.” Grubbs v. Butz, 548 F.2d 973, 976 (D.C.Cir.1976).

Finally, and most importantly, the principle of reciprocity in fee shifting best serves the basic purposes of civil rights litigation: (1) it would deter violations of civil rights laws by encouraging meritorious claims and (2) it would insure that all competing interests are considered.

If attorney’s fees are awarded against the innocent intervenor — whether a plaintiff or a defendant — she will be deterred from entering the case to protect her interest, even if that interest is protected by the Constitution. She will be deterred from asserting claims that may in the end succeed. And such a policy would clearly deter the agency that Congress has given the duty to enforce the civil rights laws — the Department of Justice — from intervening to insure that the interests of groups not represented in bipolar litigation are not forgotten.

The rule adopted by my brethren sacrifices all of these vital concerns. And it threatens to generate evils of its own, by encouraging intervenors to delay and to protract litigation in order to avoid the risk of liability for fees — to wait until after the liability issues are resolved to file their claims because losing plaintiffs are not ordinarily liable for attorney’s fees, except when their claims are “frivolous.”

Today we have approved the award of attorney’s fees to a guilty defendant at the expense of an innocent intervenor who sought to vindicate Constitutional rights. The majority’s decision is flawed both in its reasoning and in its result. Therefore, I respectfully dissent.