Opposition Brief — CSEA Local Union 1000, American Federation of State v. Brock

No. 85-1866 AUG 18 1986

JOCarmEs. SPANIOL, JR.

Iu the Supreme Court of the Yuited States "

OCTOBER TERM, 1986

CSEA LocAL UNION 1000, AMERICAN FEDERATION

OF STATE, COUNTY AND MUNICIPAL EMPLOYEES,

AFL-CIO, PETITIONER

Vv.

WILLIAM E. BROCK, SECRETARY OF LABOR, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT

IN OPPOSITION

CHARLES FRIED

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

GEORGE R. SALEM

Solicitor of Labor

ALLEN H. FELDMAN

Associate Solicitor

MARY-HELEN MAUTNER

Counsel for Appellate Litigation

BETTE J. BRIGGS

Attorney

Department of Labor

Washington, D.C. 20210

— REIN LAE LS ANOS IATL S REL ASAE ERB 8

QUESTION PRESENTED

Whether a union member who intervenes in a suit

filed by the Secretary of Labor to set aside a union

election under Title IV of the Labor-Management

Reporting and Disclosure Act of 1959, 29 U.S.C. 481

et seq., may recover from the union reasonable attor-

neys’ fees incurred in exhausting administrative reme-

dies and assisting the Secretary’s enforcement of the

statute.

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Alyeska Pipeline Service Co. v. Wilderness Society,

I a Le sca SHR ot Omer ae 9

Brennan v. United Steelworkers (District 15) (Dis-

trict 31), 554 F.2d 586, cert. denied, 435 U.S.

bE ACE a ae 8.9, 10, 11, 12, 13

Donovan Vv. Local 70, International Brotherhood of

a enmeatere, G61 F206 1199 ............-........................- 10-11

Dunlop v. Bachowski, 421 U.S. 560 —........0000........ we 13

NE Bk Sl Eee 6, 8, 10, 12, 13

Hodgson Vv. Local 6799, United Steelworkers, 403

es ecnudsapsghnsnedechdapamnleni 3

Marshall v. United Steelworkers (District 15)

(District 31), 666 F.2d 845, cert. denied, 459

Neen ee Seocaniasnwomaantnneeees 10,11

Mills y. Electric Auto-Lite Co., 396 U.S. 375 ............ 10, 13

Rollison vy. Hotel Employees, Local 879, 677 F.2d

nec tnpiasintunonntatcbieds 10

Trbovich v. United Mine Workers, 404 U.S. 528......2, 3, 12.

13, 14

United Steelworkers v. Sadlowski, cert. denied, 435

rd ge ys MS RE tg .. 14,15

Usery Vv. Local 639, International Brotherhood of

Teamsters, 543 F.2d 369, cert. denied, 429 U.S.

ESSE So EAA ale ne do 10-11, 12

Wirtz v. Local 153, Glass Bottle Blowers Ass’n, 389

re Be su bepeuienshdetsaxson 2

Statutes : Page

Labor-Management Reporting and Disclosure Act

of ee, 2 Ua. See OO. ...W......................... 2

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I ond cauniahanineeaenmbeans 2

In the Supreme Court of the United States

OCTOBER TERM, 1986

No. 85-1866

CSEA LocAL UNION 1000, AMERICAN FEDERATION

OF STATE, COUNTY AND MUNICIPAL EMPLOYEES,

AFL-CIO, PETITIONER

Vv.

WILLIAM E. BROCK, SECRETARY OF LABOR, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. Al-

A12) is reported at 784 F.2d 98. The opinion and

order of the district court (Pet. App. A13-A16) are

unreported. The prior opinion of the court of appeals

concerning the validity of the election held by peti-

tioner (Pet. App. A86-A48) is reported at 761 F.2d

870. The prior opinion of the district court concern-

ing the validity of the election (Pet. App. A17-A35)

is reported at 594 F. Supp. 188.

(1)

2

JURISDICTION

The judgment of the court of appeals was entered

on February 14, 1986. The petition for a writ of

certiorari was filed on May 12, 1986. The jurisdic-

tion of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Congress enacted the Labor-Management Re-

porting and Disclosure Act of 1959 (LMRDA), 29

U.S.C. 401 et seqg., which sets forth detailed standards

governing the operations of labor organizations, be-

cause it found that labor organizations and their

officers and representatives had participated in “a

number of instances of breach of trust, corruption,

disregard of the rights of individual employees, and

other failures to observe high standards of respon-

sibility and ethical conduct” (29 U.S.C. 401(b)).

Congress viewed union democracy as an important

safeguard against abuses by union officials and it

therefore established in Title IV of the LMRDA a

comprehensive scheme for the regulation of union

elections. Trbovich v. United Mine Workers, 404

U.S. 528, 531-5382 (1972); Wirtz v. Local 153, Glass

Bottle Blowers Ass’n, 389 U.S. 463, 470 & n9

(1968). Title IV prescribes minimum standards

governing union elections and provides safeguards

designed to guarantee individual union members’

rights to participate in those elections. See 29 U.S.C.

481-483.

Congress endowed the Secretary of Labor with ex-

clusive responsibility for enforcing Title IV (see 29

U.S.C. 483). However, in order to prevent unneces-

sary judicial interference in internal union affairs,

the Secretary may not seek to set aside a union elec-

3

tion unless a union member exhausts the union’s

internal procedures and files a complaint with the

Secretary (29 U.S.C, 482). The grounds upon which

the Secretary may challenge the validity of the union

election are limited to the claims raised in “some dis-

cernible fashion” in the complaint filed by the union

member under the union’s internal dispute resolution

procedure. Hodgson v. Local 6799, United Steelwork-

ers, 403 U.S. 3338, 341 (1971); 29 U.S.C. 482. The

union member who filed the complaint with the Sec-

retary may intervene in any Title IV suit subse-

quently filed by the Secretary “so long as that in-

tervention is limited to the claims of illegality pre-

sented by the Secretary’s complaint” (T7'rbovich v.

United Mine Workers, 404 U.S. at 537).

2. Respondent Helen Carter, a member of peti-

tioner Civil Service Employees Association (CSEA),

unsuccessfully sought to be nominated for the posi-

tion of secretary of the union in connection with peti-

tioner’s 1982 mail ballot election. Under the nominat-

ing procedures in effect at that time, incumbents

running for office automatically were placed on the

ballot. Nonincumbents were nominated only if (1)

they were approved by a nominating committee that

applied unwritten subjective criteria, or (2) they

submitted a petition bearing the signatures of two

percent of the membership (approximately 3,800 sig-

natures) within six weeks after being rejected by the

nominating committee. Pet. App. Al, A37-A38.

Carter was not selected by the nominating commit-

tee, and she filed a complaint with petitioner assert-

ing that its nominating procedure was arbitrary and

discriminatory and therefore violated Title IV of the

LMRDA. See 29 U.S.C. 481(e) (“every [union]

member in good standing shall be eligible to be a

4

candidate and to hold office (subject to * * * rea-

sonable qualifications uniformly imposed)”). Carter

also protested petitioner’s failure to conduct its elec-

tion by secret ballot. See 29 U.S.C. 481(b) (election

must be “by secret ballot among the members in good

standing”). Petitioner rejected Carter’s protests on

the ground that they were not timely filed. With the

assistance of counsel, Carter then filed a complaint

with the Secretary of Labor urging the Secretary to

institute a lawsuit challenging the election under

Title IV. Pet. App. Al-A2, A88-A39.

The Secretary’s investigation of Carter’s complaint

was aided by documentation submitted by Carter’s

counsel demonstrating that petitioner was subject to

the LMRDA and that Carter had exhausted the

union’s internal remedies. The Secretary determined

that Carter’s allegations were supported by the evi-

dence and that petitioner’s violations of the relevant

provisions of the LMRDA might have affected the

outcome of the election. He therefore filed suit

against petitioner in the United States District Court

for the Northern District of New York seeking to set

aside the election; Carter intervened in the action as

a plaintiff. Pet. App. A2.

The district court found that (1) Carter had ex-

hausted her internal union remedies; (2) petitioner

had violated Title IV by failing to conduct its election

by secret ballot; and (3) petitioner’s nominating pro-

cedure did not violate Title IV because the signature

method for obtaining a nomination served as an al-

ternative to the unlawful nominating committee

method of candidate selection. The district court fur-

ther concluded that a new election was necessary to

remedy the secret ballot violation. The new election

was held under the Secretary’s supervision on October

5

15, 1984, and Carter appeared on the ballot but was

not elected. Pet. App. A8, A17-A34, A39-A40.

The Secretary and petitioner each appealed the dis-

trict court’s adverse rulings, and Carter participated

in the proceedings in the court of appeals. The court

of appeals affirmed the district court’s finding that

Carter had exhausted the internal union remedies,

but reversed the district court’s determination that

petitioner’s nominating procedures complied with Title

IV. The court of appeals held that the nominating

procedures were invalid because they were not uni-

formly applied to all candidates and imposed a sig-

nificant burden on persons who were not selected by

the nominating committee. The court of appeals de-

clined to order petitioner to conduct a second rerun

of the 1982 election, concluding that it was sufficient

that the corrected nominating procedures would apply

to all subsequent elections. Pet. App. A383, A40-A48.

3. Following the court of appeals’ decision on the

merits, Carter sought to recover attorneys’ fees from

petitioner. In response to an inquiry by the district

court, the Secretary filed a statement acknowledging

that Carter’s counsel had provided material assist-

ance in the prosecution of the action. The Secretary

explained that Carter’s counsel had aided his prepa-

ration, investigation, and litigation of the action by

(1) providing nonduplicative arguments demonstrat-

ing that petitioner was subject to the LMRDA; (2)

providing material to show that Carter had exhausted

her internal union remedies; (3) serving as a ready

reference for information; and (4) agreeing to divide

the discussion of the issues in the oral argument be-

fore the court of appeals so that the Secretary could

focus on the nominating procedure issue. Pet. App.

A4, Al4-A15.

6

The district court concluded that attorneys’ fees

generally may be awarded to an intervenor in an

action under Title IV. It stated that such fee

awards should be designed “to assure vigorous atten-

tion to the initiation of complaints, but not to con-

flict with the policy underlying limited intervention.

Fees should be allowed only for a small fraction of

the time spent once the [S]ecretary has taken over”

(Pet. App. Al5). The court disallowed, as duplica-

tive of the Secretary’s efforts, half of the time ex-

pended by Carter’s counsel in connection with the

Secretary’s district court action and all of the time

spent by Carter’s counsel on the appeal of the case

on the merits (id. at A4, A15-A16). The court also

denied fees for the time expended in preparing the

fee application itself (id. at A15).

4. The court of appeals affirmed the district

court’s order in part and reversed in part by a

divided vote (Pet. App. Al-A12, A16). The court

held that a fee award to an intervenor in a Title IV

election challenge is permissible under the judicially-

created “common benefit” rule, which “permits a

court to compensate a successful plaintiff where his

efforts have resulted in a substantial benefit to the

members of an identifiable class of * * * bene-

ficiaries” (id. at A5).

The court of appeals observed that in Hall v. Cole,

412 U.S. 1 (1973), this Court held that attorneys’

fees may be awarded under a common benefit theory

“to individual union members who bring suit to en-

force the ‘Bill of Rights’ guarantees of Title I of the

LMDRA” (Pet. App. A5). It concluded that the logic

of Hall—that “a successful Title I plaintiff, though

primarily seeking to vindicate his own interests, also

benefits his fellow union members by promoting the

7

free speech rights guaranteed by Title I” (ibid.)—

applies to the actions of intervenors under Title IV.

The court recognized that, unlike Title I, which au-

thorizes private enforcement actions by union mem-

bers, Title IV endows the Secretary with exclusive

authority to institute lawsuits challenging union elec-

tions, and permits the union member only to inter-

vene in support of the Secretary’s complaint. It held

that this limitation upon the union member’s role

“does not mean that courts may not recognize the

contribution of individual union members and reim-

burse them for their expenses” (id. at A6).

The court concluded that a fee award is consistent

with the Title IV enforcement scheme because of the

individual union member’s “pivotal role” during the

initial stages of Title IV enforcement (Pet. App.

A7). Since the Secretary’s authority to litigate Title

IV election challenges is dependent upon the initial

efforts of an individual union member, “the inter-

venor usually confers a substantial benefit on the

union membership by identifying, investigating and

presenting for the Secretary’s ultimate prosecution,

evidence of union violations” (id, at A8). The court

noted that “the individual union member may not be

able to get the necessary assistance of counsel if at-

torney’s fees are unavailable” (id. at A7).

The court further found that while the role of an

intervenor is more limited after the Secretary in-

stitutes a lawsuit, this “does not necessitate the con-

clusion, as a matter of law, that the [union] member

can render no further benefit once the Secretary has

assumed control of the litigation” (Pet. App. A7-A8

n.4). Thus, “[t]he intervenor may obtain informa-

tion which might be difficult for the Secretary to

find; and * * * may offer significant contributions

to the court’s understanding of the case” (ibid.).

8

The court rejected petitioner’s argument that Title

IV established a comprehensive remedial scheme that

bars recovery of attorneys’ fees by an intervenor. It

noted that this Court upheld the award of attorneys’

fees in Hall vy. Cole, supra, and found that the statu-

tory scheme set forth in Title 1V was no more com-

prehensively detailed than the provisions of Title I

of the LMRDA at issue in Hall. Pet. App. A9-A10.

It also found that Congress did not intend to preclude

awards of attorneys’ fees in actions under Title IV,

observing that “Congress created a significant role

for the individual union member in Title IV’s en-

forcement scheme” and that “ ‘legislatures do not or-

dinarily create roles—strong roles—and then deny

their existence by refusing to recognize the existence

of the means to fulfill them effectively.’” Jd. at A10

(quoting Brennan v. United Steelworkers (District

15) (District 31), 554 F.2d 586, 599 (3d Cir. 1977),

cert. denied, 435 U.S. 977 (1978) ).

Finally, the court concluded that permitting fee

awards in this context would not result in burden-

some litigation: “the additional burden to the union

in responding to the petition [for fees] is minimal”

because “[t]he court and the parties are fully famil-

iar with the contribution, if any, made by inter-

venor’s counsel” (Pet. App. All). The court also

found that the availability of fees would not disrupt

the enforcement of Title IV; instead, “the award of

attorney’s fees where intervenors have made a real

contribution will enable intervenors to obtain the nec-

essary legal assistance without threatening the Secre-

tary’s predominant role in the enforcement scheme”

(ibid.).

Turning to the particular facts of this case, the

court of appeals approved the district court’s award

9

of fees to Carter “predominantly for counsel’s work

done preliminary to, and not duplicative of, the Sec-

retary’s representation,” concluding that “such [a]

limitation [of the fee award] encourages proper at-

tention to the initiation of complaints without con-

flicting with the policy of limited intervention” (Pet.

App. All). However, the court of appeals directed

the district court to include an award of fees for the

time spent preparing the fee petition (id. at A11-

A12).’

ARGUMENT

The decision of the court of appeals is correct and

does not conflict with any decision of this Court or

another court of appeals. Review by this Court there-

fore is not warranted.

1. In Alyeska Pipeline Service Co. v. Wilderness

Society, 421 U.S. 240 (1975), this Court reaffirmed

the “American Rule” regarding awards of attorneys’

fees—that “the prevailing litigant is ordinarily not

entitled to collect a reasonable attorneys’ fee from

the loser” (421 U.S. at 247). The Court recognized,

however, that courts have inherent equitable author-

ity to award attorneys’ fees to a plaintiff who obtains

a benefit for a class of similarly situated individuals

(id. at 257-258). Underlying this “common benefit”

rule is the equitable principle that “[t]o allow * * *

others to obtain full benefit from the plaintiff’s efforts

without contributing equally to the litigation expenses

would be to enrich the others unjustly at the plain-

' Judge Winter dissented on the ground that he “agree[d]

with the views expressed by Justice White in his dissent from

the denial of certiorari in United Steelworkers v. Sadlowski,

435 U.S. 977 (1978)” (Pet. App. Al6).

10

tiff’s expense” (Mills vy. Electric Auto-Lite Co., 396

U.S. 375, 392 (1970) ).

In Hall v. Cole, 412 U.S. 1 (1973), the Court ap-

plied the common benefit rule in the context of an

action under Title I of the LMRDA, which sets forth

a “Bill of Rights” for members of labor organizations

(see 29 U.S.C. 411-415). The Court observed that

“Tw]hen a union member is disciplined for the exer-

cise of any of the rights protected by Title I, the

rights of all members of the union are threatened.

And, by vindicating his own right, the successful liti-

gant dispels the ‘chill’ cast upon the rights of others”

(412 U.S. at 8). Thus, “there can be no doubt that,

by vindicating his own right of free speech * * *,

[the plaintiff] necessarily rendered a _ substantial

service to his union as an institution and to all of its

members” (ibid.). An award of attorneys’ fees

therefore was found to be appropriate under the com-

mon benefit rule.

Every court of appeals that has considered the

question has concluded that the common benefit rule

also justifies an award of fees to a union member

who has complained to the Secretary of an alleged

violation of Title IV of the LMRDA and subsequently

has intervened in the Secretary’s enforcement action.

See Pet. App. A5-A11; Marshall v. United Steel-

workers (District 15) (District 31), 666 F.2d 845,

848 (3d Cir. 1981), cert. denied, 459 U.S. 823 (1982)

(Steelworkers II); Brennan v. United Steelworkers

(District 15) (District 31), 554 F.2d 586, 591-608

(3d Cir. 1977), cert. denied, 435 U.S. 977 (1978)

(Steelworkers I); Rollison v. Hotel Employees, Local

879,677 F.2d 741, 747-748 (9th Cir. 1982) ; Donovan

v. Local 70, International Brotherhood of Teamsters,

661 F.2d 1199, 1203 (9th Cir. 1981); Usery v. Local

il

639, International Brotherhood of Teamsters, 543 F.2d

369, 381-389 (D.C. Cir. 1976), cert. denied, 429 U.S.

1123 (1977).

These courts agree that an individual union mem-

ber who invokes the Secretary’s investigative and en-

forcement authority and assists the Secretary in suc-

cessfully challenging an unlawful union election con-

fers a benefit on all of the members of the union.

Indeed, the intervenor’s actions are critical to the

vindication of the Title IV rights of all union mem-

bers because the Secretary cannot take any enforce-

ment action unless an individual member of the union

exhausts the internal union remedies and files a com-

plaint with the Secretary (29 U.S.C. 482). The in-

tervenor’s actions prior to the commencement of an

enforcement action by the Secretary therefore plainly

confer a common benefit; his expenses accordingly

should be reimbursed under the common benefit rule.

Pet. App. A6-A8; Steelworkers I, 554 F.2d at 605-

606; Local 639, Teamsters, 543 F.2d at 381-382.’

* Since the exhaustion of internal union remedies is a pre-

requisite for an enforcement action by the Secretary under

Title IV, the need for competent counsel is particularly acute

at that initial stage. The union member must identify viola-

tions, formulate a bill of particulars, exhaust internal union

procedures, and draft a complaint for presentation to the Sec-

retary. While Title IV may contemplate that an uncounseled

union member’s complaint is sufficient to trigger the Secre-

tary’s broad investigative powers, it cannot be doubted that

the filing of a well-crafted and well-documented complaint

furthers the purposes of Title IV and ensures that the Secre-

tary will be able to investigate all issues relevant to the legal-

ity of the particular union’s elections. Pet. App. A7-A8;

Steelworkers II, 666 F.2d at 851-852; Steelworkers I, 554 F.2d

at 594; Local 639, Teamsters, 543 F.2d at 384-385.

12

Moreover, as both the courts of appeals and the

Secretary have recognized, intervenors’ counsel fre-

quently provide unique and valuable information and

assistance during the later stages of a Title IV en-

forcement action. “Not only is the intervenor often

in a position to obtain information which might * * *

be difficult for the agency to marshall or preserve,

but his perspective and the intensity of his interest

allow him to contribute to the court’s total under-

standing.” Steeelworkers I, 554 F.2d at 595 (foot-

note omitted); see also Pet. App. A7-A8 & n.4;

Trbovich v. United Mine Workers, 404 U.S. at 537

n.8 (suggesting that Title IV intervenors may play

a role distinct from that of the Secretary in assisting

the courts in fashioning suitable remedial orders) ;

Local 639, Teamsters, 543 F.2d at 384.

2. Petitioner contends (Pet. 9) that Title IV es-

tablishes a comprehensive enforcement scheme that

bars courts from exercising their traditional equit-

able power to award attorneys’ fees under the com-

mon benefit rule. This Court has made clear, how-

ever, that congressional intent to bar courts from

exercising this equitable authority will not be in-

ferred unless the statutory remedies are “ ‘meticu-

lously detailed’ ” so as to “ ‘mark the boundaries of the

power to award monetary relief’ ” (Hall v. Cole, 412

U.S. at 9-10 (citation omitted) ), or the legislative

history reveals a “ ‘definitive and absolute setting of

the Congressional face against the giving of such in-

cidental [equitable] relief?” (id. at 12 (citation -

omitted) ). Neither of these circumstances is present

here.®

% Contrary to petitioner’s assertion (Pet. 8-9), congressional

silence, even in conjunction with the presence of express pro-

13

This Court already has recognized that Title IV is

not so “meticuiously detailed” as to allow an infer-

ence that Congress limited the courts’ equitable power

to supplement statutory remedies. Thus, the Court has

filled interstices in the Title IV enforcement scheme

by permitting a union member to intervene in the

enforcement action commenced by the Secretary

(Trbovich v. United Mine Workers, supra), and by

requiring the Secretary to provide a union member

with a statement of reasons when the Secr tary de-

cides not to pursue the union member’s complaint

(Dunlop v. Bachowski, 421 U.S. 560 (1975)). More-

over, by giving union members the critical role of

initiating the enforcement process, the statute rein-

forces the conclusion that Congress did not defini-

tively and absolutely set its face against awarding

attorneys’ fees for the important work performed by

the complaining union member’s attorney. See Pet.

App. A9-A10, A11; Steelworkers I, 554 F.2d at 594-

595.*

visions for the award of attorneys’ fees in other parts of a

statute, does not conclusively demonstrate an intent to pre-

clude equitable relief. Hall v. Cole, 412 U.S. at 10-11; Mills v.

Electric Auto-Lite Co., 396 U.S. at 390-391. For example, in

Hall v. Cole, 412 U.S. at 8, 13-14, the Court held that, although

Title I of the LMRDA is silent with respect to awards of

attorneys’ fees and fee awards expressly are authorized in

other parts of that statute, courts may exercise their equitable

power to award such relief to private litigants.

* This Court’s analysis in Trbovich refutes petitioner’s argu-

ment (Pet. 8) that, by rejecting a bill that would have allowed

suits by individual union members and specifically authorized

attorneys’ fees, Congress evinced an intent to preclude appli-

cation of the “common benefit” theory to Title IV cases. As

the Court explained (404 U.S. at 536), Congress’s rejection

of union member suits was “intended to prevent members

14

8. Quoting the dissent from the denial of certio-

rari in United Steelworkers v. Sadlowski, 435 U.S.

977, 980 (1978), petitioner contends (Pet. 7) that

awarding attorneys’ fees to Title IV intervenors

“ “threatens seriously to obstruct the administration

of the LMRDA.’ ” The dissenters in United Steelwork-

ers found it significant that the Secretary, addressing

the attorneys’ fee question for the first time, had

from pressing claims not thought meritorious by the Secre-

tary, and from litigating in forums or at times different from

those chosen by the Secretary.” That decision cannot be

viewed as a rejection of the common benefit rule because Con-

gress “at no time considered the possibility that union mem-

bers might assist the Secretary rather than displace him”

(ibid.).

Petitioner also is incorrect in asserting (Pet. 7) that the

policies underlying this Court’s decision in Trbovich preclude

an award of attorneys’ fees. The Court explained in Trbovich,

404 U.S. at 535-536, that Congress endowed the Secretary

with sole authority to institute an enforcement action under

Title IV in order to permit the screening of frivolous com-

plaints and the consolidation of meritorious claims. Since fees

would not be available unless the Secretary brought suit and

the intervenor’s challenge to an election ultimately was upheld,

allowing recovery of fees obviously will not subject the union

to “claims not thought meritorious by the Secretary” (id. at

536) or force the union to “litigat[e] in forums or at times

different from those chosen by the Secretary” (ibid.). More-

over, as the court below concluded (Pet. App. All), an inter-

venor’s application for attorneys’ fees does not present a

threat of burdensome multiple litigation because “[t]he court

and the parties are fully familiar with the contribution, if any, |

made by intervenor’s counsel”; instead, ‘‘the additional bur-

den to the union in responding to the petition is minimal.”

Any small burden imposed by the litigation associated with

an attorneys’ fee application is substantially outweighed by

the important contributions of intervenors and their attor-

neys to the promotion of the rights guaranteed by Title IV.

15

stated in his submission in that case that fee awards

might impede the effective enforcement of Title IV

(435 U.S. at 978). The Secretary filed a memoran-

dum urging this Court to review the Third Circuit’s

decision in United Steelworkers because he believed

that attorneys’ fee awards would discourage unions

from settling Title IV suits and would encourage ex-

cessive intervention in Title IV actions. Memo of

Secy. of Labor at 4-5, United Steelworkers vy. Sadlow-

ski, supra.

The coneerns that were the basis for the Secre-

tary’s submission in 1978 have not been realized.

Thus, in a memorandum filed four years later oppos-

ing a petition for certiorari presenting the same ques-

tion concerning the propriety of fee awards to Title

IV intervenors, the Secretary explained that there

simply had not been any adverse effect on Title IV

enforcement as a result of the courts of appeals’ de-

cisions allowing recovery of attorneys’ fees by inter-

venors. Memo in Opp. at 3-4, United Steelworkers v.

Sadlowski, cert. denied, 459 U.S. 823 (1982). The

Secretary reaffirms that conclusion today on the basis

of four additional years of experience regarding the

effect of attorneys’ fee awards upon the enforcement

of Title IV.° In view of the unanimity among the

5 The Secretary in 1982 limited his comments to the pro-

priety of awards of attorneys’ fees for work performed dur-

ing the period before the individual union member’s complaint

is filed with the Secretary. Memo in Opp. at 4 & n.1, United

Steelworkers v. Sadlowski, cert. denied, 459 U.S. 823 (1982).

The Secretary now informs us, based on his additional experi-

ence regarding the effect of attorneys’ fee awards, that care-

fully limited fees for services of counsel rendered during later

stages of the proceeding will not impair the enforc2ment of

Title IV. Such fees should, of course, be awarded only for

services that materially assist and do not substantially dupli-

16

courts of appeals regarding the permissibility of such

fee awards, and the absence of any adverse effect

upon the enforcement of Title IV, review by this

Court is not warranted.

CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

GEORGE R. SALEM

Solicitor of Labor

ALLEN H. FELDMAN

Associate Solicitor

MARY-HELEN MAUTNER

Counsel for Appellate Litigation

BETTE J. BRIGGS

Attorney

Department of Labor

AUGUST 1986

cate the Secretary’s efforts; that standard was applied by the

district court and the court of appeals in this case (Pet. App.

All, A15-A16).

W ou. S. GOVERNMENT PRIMTING OFFICE; 1986 491507 20304