Petition for Writ of Certiorari — Bridgeport Guardians v. Bridgeport Civil Serv Comm (No. 74-543)

MICHAE

IN THE Pcsaivtrestaibe

Supreme Court of the United States

October Term, 1974

No. 74-5483

Bripcerort Guarvians, Inc., et al.,

Petitioners,

vs.

MEMBERS OF THE BRIDGEPORT

Crvm Service Commission, et al.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

MicuHaet P. KosKkorr

1241 Main Street

Bridgeport, Connecticut 06603

Tra Horowitz

412 East Main Street

Bridgeport, Connecticut 06608

Jack GREENBERG

Eric SCHNAPPER

Suite 2030

10 Columbus Circle

New York, New York 10019

Counsel for Petitioners

—————————

INDEX

PAGE

Opinions Below ....--------------- ssaninteibecnassinibanaain 1

Jurisdiction .. * 2

Question Presented “ a

Statutory and Constitutional Provisions Involved .......- 2

Statement of the Case... 3

Reasons for Granting the Writ ..... 5

CON CELUBION ...-.n-cc--ns-0--snseneeevenneenesinsansnnsnensnssnnsnasenesnoseasensenere 19

AppENDIX—

Memorandum of Decision of District Court .....---.-.. la

Opinion of the Court of Appeals ww 14a

Order of the Court of Appeals Denying Rehearing 19a

Cases:

Alyeska Pipeline Service Co. v. The Wilderness So-

ciety, No. 73-1977 .. 18

Bradley v. School Board of City of Richmond, 40 L.Ed.

2a 476 (1974) 6, 8, 16, 17, 18

Brandenburger v. Thompson, 494 F.2d 885 (9th Cir.

1974) 11, 15

Brown v. Ballas, 331 F.Sipp. 1033 (N.D. Tex. 1971) .... 14 |

Callahan v. Wallace, 466 F.2d 59 (5th Cir. 1972) ........ 10

Calnetics Corp. v. Volkswagen, 353 F.Supp. 1219 (C.D.

Cal. 1973) 13

ii

Commissioner y. Bilder, 369 U.S. 499 (1962) 0.0.0.0... 9

Cooper v. Allen, 467 F.2d 836 (5th Cir. 1972) 00000000...... 9,10

Cornist v. Richland Parish School Board, 495 F.2d 189

(5th Cir. 1974) 10, 15

Council of Organization on Philadelphia Police, ete. v.

Tate, 60 F.R.D. 615 (E.D. Pa. 1973) 14

Delaware Citizens for Clean Air, Inc. v. Stauffer

Chemical Co., 62 F.R.D. 353 (D. Del. 1974) 0.00000... 14

Doherty v. Wilson, 356 F.Supp. 35 (M.D. Ga. 1973) ... 14

Donahue v. rt 471 F.2d 475 (7th Cir. 1972),

cert. den. 410 U.S. 955 (1973) 12,16

Fairley v. Patterson, 493 F.2d 598 (5th Cir. 1974) ........ 10

F.D. Rich Co. v. Industrial Lumber Co., 40 L.Ed. 2d

703 (1974) ...... 6, 18

Ford v. White (S.D. Miss. No. 1230 (N)) (Opinion

dated August 5, 1972) 13, 15

Fowler v. Schwarzwalder, 498 F.2d 143 (8th Cir.

1974) 11, 16

Gilpin v. Kansas State High School Activities Associa-

tion, 377 F.Supp. 1233 (D. Kan. 1974) 14

Hall v. Cole, 412 U.S. 1 (1973) 5, 16, 17

Hammond v. Housing Authority, 328 F.Supp. 586 (D.

Ore. 1971) 14

Harper v. Mayor and City Council of Baltimore, 359

F.Supp. 1187 (D. Md. 1973) 13

Holt v. Hutto, 363 F.Supp. 194 (E.D. Ark. 1973) ........ 13

_ Incarcerated Men of Allen Company v. Fair, 376

F.Supp. 483 (N.D. Ohio 1973) 13

» Jinks v. Mays, 350 F.Supp. 1037 (N.D. Ga. 1972) .......13, 15

Di ital A AANA AE EASES BOE

iii

PAGE

Jordon v. Gilligan, (N.D. Ohio) (opinion dated March

9, 1973) rev'd on other grounds 500 F.2d 701 (6th

Cie SORE oS 14

Kirkland v. New York State Dept. of Correctional Ser-

vices, 374 F.Supp. 1361 (S.D.N.Y. 1974) ------------ 13

Knight v. Auciello, 453 F.2d 953 (1st Cir. 1972) ------ 7,10

La Raza Unida v. Volpe, 57 F.RBD. 94, (N.D. Cal.

pe Ea are gree rapes yr aNES HE 13, 15

Lee v. Southern Home Sites Corp., 429 F.2d 290 (5th

se 1200) Le ee 7,9, 10

Lyle v. Teresi, 327 F.Supp. 683 (D. Minn. 1971) ....-------- 13

Milburn v. Huecker, 500 F.2d 1279 (6th Cir. 1974) -------- 12

Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970) ----- 17

Mitchell v. DeMario Jewelry, 361 U.S. 788 (1960) -..----- 16

Morales v. Haines, 486 F.2d 880 (7th Cir. 1973) -------- 12

Morrow v. Crissler, 4EPD { 7563 (S.D. Miss. 1971) .... 13

N.A.A.C.P. v. Allen, 340 F.Supp. 703 (M.D. Ala. 1972) 13

Natural Resources Defense Council Ine. v. Environ-

mental Protection Agency, 484 F.2d 1331 (1st Cir.

98) $<... mous 10

Newman v. Piggie Park Enterprises, 390 U.S. 400

(1968) ennvnnnvnerecenerenertn rm Ty 14

Newman v. State of Alabama, 349 F.Supp. 278 (M.D.

Ale. 1912) ———--——————-.._ . a (1978) 13

Northeross v. Board of Education, 412 US. 427 (1973) 5

Ross v. Goshi, 351 F.Supp. 949 (D. Hawaii 1972) -..-------- 13

Scott v. Opelika City Schools, 63 F.R.D. 144 (M.D.

Ala, 1914) xccanenanee a ee, 1978) 14

Sierra Club v. Lynn, 364 F.Supp. 834 (W.D. Tex. 1973) 13

iv

PAGE

Sims v. Amos, 340 F.Supp. 691 (M.D. Ala.) aff’d 409

U.S. 942 (1972) 13

Skehan v. Board of Trustees of Bloomsburg State Col-

lege, 501 F.2d 31 (3d Cir. 1974) ~.................. 12

Smith v. City of East Cleveland, 363 F.Supp. 1131 (N.D. ©

Ohio 1973) 14

Sprague v. Ticonic National Bank, 307 U.S. 161 (1939) 16

Stanford Daily v. Zurcher, 366 F.Supp. 18, (N.D. Cal.

1973) 13, 15

Stevens v. Dobs, Inc. 373 F.Supp. 618 (E.D. N.C.

1974) 14

Stolberg v. Trustees for the State Colleges of Con-

necticut, 474 F.2d 485 (2c Cir. 1973) 8

Taylor v. Perini, (No. 73-2071, 6th Cir.) (Opinion

dated October 3, 1974) 12

Thonen v. Jenkins, 374 F.Supp. 134 (E.D..N.C. 1974) ..13, 15

‘Wilderness Society v. Morton, 495 F.2d 1026 (D.C. Cir.

1974) 12

Wyatt v. Stickney, 344 F.Supp. 387 (M.D. Ala. 1972) ..... 13

Statutes:

20 U.S.C. § 1617 8

28 U.S.C. § 1254(1) . 2

42 U.S.C. § 1981 2, 3,9, 11, 13

42 U.S.C. § 1982 9,10

42 U.S.C. § 1983 3, 8, 10, 11, 13

42 U.S.C. § 2000e-5(k) 8

Other Authorities:

Brief for the United States as Amicus Curiae, No.

72-1332 17

i alatthadhes hi Lad NGA A Me

In THE ;

Supreme Court of the United States

October Term, 1974

No. ,

—

BrivcEPorT GUARDIANS, Inc., et al.,

Petitioners,

vs.

MEMBERS OF THE BriwcEPortT

Crvm SERVICE Commission, et al.

f*

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

| FOR THE SECOND CIRCUIT

The Petitioners, Bridgeport Guardians, Inc., et al., re-

spectfully pray that a Writ of Certiorari issue to review

the judgment and opinion of the United States Court of

Appeals for the Second Circuit entered in this proceeding

on June 3, 1974.

Opinions Below

F.2d 1113 and is reprinted in the Appendix hereto, pp. 14a-

18a. The opinion of the District Court is not reported, but

is reprinted in 8 EPD 7 9508 and is set out in the Appendix

hereto, pPp- la-13a.

The opinion of the Court of Appeals is reported at 497

2

Jurisdiction

The judgment of the Court of Appeals for the Second

Circuit was entered on June 3, 1974. On August 15, 1974,

the Court of Appeals denied petitioners’ petition for rehear-

ing. Pp. 19a-20a. This Court’s jurisdiction is invoked

under 28 U.S.C. § 1254(1).

Question Presented

Do the federal courts have the authority, in the absence

of express statutory authorization, to award counsel fees

to a successful plaintiff who acts as a private attorney gen-

eral in enforcing important public policies?

Statutory and Constitutional Provisions Involved

Section 1 of the Fourteenth Amendment to the United

States Constitution provides:

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they reside.

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person

of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal

protection of the laws.

Section 1981, 42 United States Code, provides:

All persons within the jurisdiction of the United

States shall have the same right in every State and

Territory to make and enforce contracts, to sue, be

parties, give evidence, and to the full and equal benefit

of all laws and proceedings for the security of persons

3

and property as is enjoyed by white citizens, and shall

be subject to like punishments, pains, penalties, taxes,

licences, and exactions of every kind, and to no other.

Section 1983, 42, United States Code, provides:

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or

Territory, subjects, or causes to be subjected, any citi-

zen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights,

privileges, OT immunities secured by the Constitution

and laws, shall be liable to the party injured in @n

action at law suit in equity, OF other proper proceed-

ing for redress.

Statement of the Case

This action was commenced in February 1972, pursuant to

42 U.S.C. §§ 1981 and 1983, to challenge the constitution-

ality of certain hiring and promotion procedures of the

Bridgeport, Connecticut, Police Department. Plaintiffs are

several Black members of the Bridgeport Police Depart-

ment, several Black and Puerto Rican applicants who had

been rejected by the Department, and Bridgeport Guard-

ians, Inc., an organization whose membership includes

nearly all the Black policemen in Bridgeport. Plaintiffs

contended, inter alia, that the written examination used in

hiring policemen was not job related, and excluded dispro-

portionate numbers of Black and Puerto Rican applicants.

After extensive @iscovery' and & trial lasting three

weeks, the District Court concluded that the examina-

qeiiiaeinentatale

1 The pre-trial discovery included six sets of interrogatories as

well as extensive de} itions. Petitioners also successfully defeated

three motions to dismiss.

4

tion used in hiring patrolmen had “an unconstitutional

effect because as used, it classified applicants by race and

national origin without sufficient evidence of job related-

ness to justify such a result.” 354 F.Supp. 778, 793 (D.

Conn. 1973). The District Court found that 58% of all

white applicants passed the examination, compared to only

17% of the Black and Purto Rican applicants. As a result

of the examinations, of the 469 members of the Department,

only 17 (3.6%) were Black and Puerto Rican, although

those minorities accounted for 25% of the Bridgeport popnu-

lation. The proportion of minority policemen in Connecti-

cut’s two other large cities, Hartford and New Haven, was

several times larger than in Bridgeport. The Bridgeport

Police Superintendent conceded that test scores did not

correlate with job performance. See 354 F.Supp. at 788-

790. On appeal, the Second Circuit upheld the finding of

discrimination, and the remedy for discriminatory hiring,

and remanded for the refashioning of the remedy for dis-

criminatory promotions. 482 F.2d 1333 (2d Cir. 1973).

This litigation brought about substantial changes in the

hiring and promotion practices of the Bridgeport Police

Department. The discriminatory examination was abol-

ished and a non-discriminatory test established. General

hiring procedures were reformed. Under the order of the

District Court at Jeast half of all vacancies in the rank

of patrolmen were filled with qualified Black and Puerto

Rican applicants until there were 50 minority patrolmen,

an increase of 200%. Promotion and seniority rules were

modified in various respects to dissipate the continuing

effect of past discrimination.

On remand plaintiffs moved for an award of attorneys’

fees for the 2 years of litigation in the District Court

and Court of Appeals required to bring defendants into

compliance with the law. The District Court, however,

Dre Or

5

concluded that it had no power to award such fees in the

7” Pp. Lla-

absence of “ynreasonable, obdurate obstinacy

12a. The Court of Appeals affirmed on the same grounc.

Pp. 17a-18a.

Reasons for Granting the Writ

On four occasions in the last two years this Court has

discussed, but found it unnecessary to decide, whether the

federal courts have the power, in the absence of an express

statutory authorization, to award counsel fees to a success-

ful plaintiff who acts as a “private attorney general” in

enforeing important public policies. In Hall v. Cole, 412

U.S. 1 (1973), this Court explained :

_.. respondent contends that the award of attorneys’

fees in this case might also be justified on the ground

that, by successfully prosecuting this litigation, re-

spondent acted as a ‘private attorney general’ vindi-

cating a policy that Congress considered of the high-

est priority. Id., at 402. See also Knight v. Auciello,

453 F.2d 852 (1st Cir. 1972); Lee v. Southern Home

Sites Corps 444 F.2d 143 (5th Cir. 1971). In light

of our conclusion with respect to the “common bene-

fit” rationale, however, we have no occasion to con-

sider that question.

stion was presented in

412 U.S. at 7, n8. The same que

2 412 U.S. 427 (1973),

Northcross v. Board of Education

and again not resolved.

We also do not decide whether, and under what

circumstances, an award of attorneys’ fees is permis-

sible in suits under 42 U.S.C. §1983 in the absence

of a specific statutory authorization for such an

2 See Petition for Writ of Certiorari, No. 72-1164, pp. 7-8.

6

award. See Knight v. Auciello, 453 F.2d 852 (1st Cir.

1972); Lee v. Southern Home Sites Corp., 444 F.2d

143 (5th Cir. 1971).

412 U.S. at 429, n.2. In Bradley v. School Board of City ©

of Richmond, 40 L.Ed.2d 476 (1974), the District Court

had awarded counsel fees, inter alia, on the ground that

plaintiffs had acted as private attorneys general’ and this

Court noted:

It is particularly in the area of desegregation that

this Court in Newman and in Northcross recognized

that, by their suit, plaintiffs vindicated a national policy

of high priority. Other courts have given explicit and

implicit recognition to the priority placed on desegre-

gation by the Congress. See Knight v. Auciello, 453

F.2d 852, 853 (1st Cir. 1972) and Lee v. Southern Home

Sites Corp., 444 F.2d 143, 145 (5th Cir. 1971) (hous-

ing); Johnson v. Combs, supra, 471 F.2d, at 86

(schools); Miller v. Amusement Enterprises, Inc., 426

F.2d 534, 537-538 (5th Cir. 1970) (public aeecommoda-

tion); Cooper v, Allen, 467 F.2d 836, 841 (5th Cir.

1972) (employment). 40 L.Ed.2d at 493, n. 27.

In Bradley counsel fees were awarded on other grounds,

and the Court again did not decide whether such fees could

be awarded in the absence of express statutory authoriza-

tion to a private attorney general. See 40 L.Ed.2d at

487-497. Two weeks after Bradley this Court again noted

that the question of whether counsel fees could be awarded

to private attorneys general still remained undecided. F.D.

Rich Co. v. Industrial Lumber Co., 40 L.Ed. 2d 703, 714

(1974).

3 See 53 F.R.D. 28, 41-42 (E.D. Va. 1971).

Sbutisurtds WP Asb attr Te think Vite Statens

ae

a Riaead ,

tant Pint deat thnk CO tae onthe ome 0

7

The lower courts have also applied a rationale for

fee shifting based on the premise that the expense of

litigation may be a formidable if not insurmountable

obstacle to the private litigation necessary to enforce

important public policies. This “private attorney gen-

eral” rationale has not been squarely before this Court

and it is not so now; nor do we intend to imply any

view either on the validity or scope of that doctrine.

The instant case requires & definitive resolution of that

often deferred question.

In their motion for counsel fees, Petitioners expressly

relied on the private attorney general theory, and stressed

the effect of their efforts in vindicating important public

policies.* The defendants, however, maintained that coun-

sel fees could only be awarded if they had been guilty of

unreasonably obstinate conduct in connection with the liti-

gation.’ The District Court acknowledged that plaintiffs

had substantially advanced the public interest, but con-

cluded it had no power to award counsel fees under the

decisions of the Second Circuit.

The Court of Appeals has recently stated the

standard for awarding attorneys’ fees in a § 1983 suit

to be whether bringing the suit was unnecessary and

was compelled by the defendant’s “unreasonable,

obdurate obstinacy”. Stolberg v. Trustees for the State

4 Plaintiffs’ Post-Trial Memorandum, pp. 41-45. Petitioners ex-

pressly relied, inter alia, on the decisions of the First and Fifth

Circuits in Knigit v. Auciello, 453 F.2d 853 (1st Cir. 1972) and

+ v. ae Home Sites Corp., 429 F.2d 290 (5th Cir. 1970).

., p. 48.

5 See, e.g., Brief for Appellants, pp. 14-16. “The standard for

awarding attorneys’ fees in a Sec. 1983 suit is whether bringing

the suit was unnecessary, and was compelled by the defendant’s

299

‘gnreasonable, obdurate obstinacy’ ”.

8

Colleges of Connecticut, 474 F.2d 485, 490 (2d Cir.

1973). While Stolberg involved intentional denial of

constitutional rights, it will not always be necessary

to prove intentional discrimination to be entitled to

attorneys’ fees. But once the claim of discrimination

has been made, there must be some indication that the

defendant’s decision to resist the claim imposed upon

plaintiffs an unwarranted burden. That cannot be

said in this case... .

P. lla.

On appeal the Second Circuit reaffirmed the “anreason-

able, obdurate obstinacy” test which it had announced in

Stolberg v. Trustees for the State Colleges of Connecticut,

474 F.2d 485, 490 (2d Cir. 1973). The Court of Appeals

stressed that section 1983, unlike Title VII of the 1964

Civil Rights Act,* or section 718 of the Emergency School

Aid Act of 1972,’ did not expressly authorize an award of

counsel fees. P. 18a.*

This case raises the same conflict among the circuits

presented by, but not resolved in, Bradley v. Board of

Education of City of Richmond, 472 F.2d 318, 327-331 (4th

°42 U.S.C. §2000e-5(k).

720 U.S.C. § 1617.

*The Second Cireuit characterized the decision of the District

Court as a reasonable exercise of “discretion.” Pp. 17a-18a. This

is somewhat misleading, since the District Court concluded that

the decisions of the Second Circuit precluded any award of counsel

fees, as an exercise of discretion or otherwise, in the absence of

obdurate obstinacy.

°“Tf, however, an award of attorney’s fees is to be made as a

means of implementing public policy, as the District Court indi-

cates in its exposition of its alternative ground of award, it must

normally find its warrant for such action in statutory authority.

Congress, however, has made no provision for such award in school

desegregation cases . . . . We find ourselves in agreement with

at the ee Cheat ae n'a

RATA date eee Oe

9

Cir. 1972), rev’d on other grounds 40 L.Ed.2d 476 (1974).

The Second and Fourth Circuits have declined to adopt or

apply the private attorney general rule. Courts of Appeals

for the First, Third, Fifth, Sixth, Seventh, Eighth and Ninth

Circuits, and the District of Columbia, have accepted that

rule. Certiorari should be granted to resolve this conflict

and establish a uniform rule for the federal courts. Com-

missioner v. Bilder, 369 U.S. 499, 501 (1962).

The first court to adopt the private attorney general

rule in the absence of an express statutory authorization

was the Fifth Cireuit Court of Appeals. In Lee Vv.

Southern Home Sites Corp., 444 F.2d 143 (5th Cir. 1971),

a housing discrimination case under 42 U.S.C. § 1982, the

district court, as here, concluded it had no authority to

award counsel fees since the defendant had not been “un-

reasonable” or “obdurately obstinate”. See 444 F.2d at

144. The Fifth Cireuit reversed.

We hold that attorney’s fees are part of the effective

remedy a court should fashion to carry out the congres-

sional policy embodied in Section 1982... . The recent

ease of Mills v. Electric Auto-Lite Co., 1970, 396 US.

375, . . . demonstrates that it is proper to award at-

torney’s fees when this remedy effectuates congres-

sional policy. .- - Section 1982 is not a statute provid-

ing detailed remedies, and thus the policy of effectuat-

ing congressional purpose does not militate against

an award of attorney’s fees, Additionally, here as in

Mills there is strong congressional policy behind the

rights declared in § 1982. Awarding attorney’s fees to

successful plaintiffs would facilitate the enforcement

of that policy through private litigation.

the conclusion that if such awards ate to be made to promote the

public policy expressed in legislative action, they should be au-

thorized by Congress and not by the courts.” 472 F.2d at 328-331.

10 j

444 F.2d at 145. Counsel fees were to be awarded to i

\ successful plaintiffs “unless special circumstances would

render such an award unjust.” 444 F.2d at 147. In Cooper

v. Allen, 467 F.2d 836 (5th Cir. 1972), the Fifth Circuit

3 applied the private attorney general rule to litigation under

§ 1981 to enjoin employment discrimination by local govern-

. ment agencies. See 467 F.2d at 841..° The Fifth Circuit

applied the private attorney general rule to uphold an

award of counsel fees in litigation under the Voting Rights

\ Act of 1965 in Fairley v. Patterson, 493 F.2d 598, 606 (5th

\ Cir. 1974). See also Cornist v. Richland Parish School

\ Board, 495 F.2d 189, 192 (5th Cir. 1974) (4 1983) ; Callahan

. Vv. Wallace, 466 F.2d 59 (5th Cir. 1972).

\

eT ee eT tere ee ee ee

The private attorney general rule was adopted by the

First Circuit 7 months after Lez, In Knight v. Auciello,

453 F.2d 853 (1st Cir. 1972), a § 1982 housing discrimina-

tion case, the district court had refused to award counsel

fees. The First Circuit reversed. |

it dt tee ie ili lt i a es a at tie alee tad

The violation of an important public policy may

involve little by way of actual damages, so far as a

single individual is concerned, or little in comparison

\ with the cost of vindication as the case at bar illus-

‘trates. If a defendant may feel that the cost of litiga-

tion, and, particularly, that the financial circumstances

of an injured party may mean that the chances of suit

being brought, or continued in the face of opposition,

will be small, there will be little brake upon deliberate

wrongdoing. In such instances public policy may sug-

gest an award of costs that will remove the burden

from the shoulders of the plaintiff seeking to vindicate

the public right. We regard this as such a case.

1 The substantive violation in Cooper wes virtually identical to

that shown in the instant case: the use of an examination which

excluded-disproportionate numbers of Blacks and bore no substan-

tial relationship to job performance. See 467 F.2d at 838-840.

tn na fe BOOT Aa Neng tlt OS NA

DOME OREE ME Ore Owen ete

nie iets eke Hin

11

453 F.2d at 853. The First Circuit reaffirmed that position,

and relied on it to award counsel fees against a federal

agency, in Natural Resources Defense Council, Inc. Vv.

Environmental Protection Agency, 484 F.2d 1331, 1333-34

(1st Cir. 1973).

In Brandenburger v. Thompson, 494 F.2d 885 (9th Cir.

1974), an action under § 1983 successfully challenging a

state residence requirement for welfare, the District Court

denied counsel fees on the ground, inter alia, that the

defendants had not acted in bad faith. The Ninth Circuit

reversed.

Under the “private attorney general” doctrine an

award of attorneys’ fees should be made to a litigant

who (1) furthers the interests of a significant class of

persons by (2) effectuating a strong congressional

policy. The award serves the purpose of encouraging

such public-minded suits. .. . Under this doctrine, the

good or bad faith of the defendant is irrelevant. Sims

v. Ames, supra, 340 F. Supp. at 694-695.

The instant case falls squarely within the ambit of

the “private attorney general” doctrine. The plaintiff

benefitted a significant class, persons who are both

potential welfare recipients and interstate travelers

by vindicating the federally protected right of inter-

state travel free from the forfeiture of welfare

benefits. And, since 41983 expresses a strong policy

of vindicating federal constitutional rights against

infringement by state officials, . . . the plaintiff

furthered congressional policy by challenging the

Hawaii statute.

494 F.2d at 888-89.

The question of counsel fees arose under circumstances

virtually identical to the instant case in Fowler v. Schwarz-

12

walder, 498 F.2d 143. (8th Cir. 1974). There the plain-

tiffs, suing under §$1981 and 1983, successfully over-

turned the written examination employed in hiring firemen.

See 351 F.Supp. 721 (D. Minn. 1972). The District Court,

however, denied counsel fees, reasoning, as here,

There is no statutory authority for such, and this is

not the type of extraordinary case where the conduct

of defendants was characterized by bad faith or un-

reasonable or obdurate obstinacy as to justify such an

award.

498 F.2d at 144. The Eighth Circuit reversed on the ground

that the district court had failed to use the correct guide-

lines in exercising its discretion.

Two opinions of the Supreme Court in recent years

have served as the impetus for the establishment of

new guidelines for the award of attorney’s fees to

encourage litigation which vindicates certain strong

Congressional policies. See Mills v. Electric Auto-Lite

Co., 396 U.S. 375 (1970); Newman v. Piggie Park

Enterprises, 390 U.S. 400 (1968) . . . Moreover, the

“private attorney general” doctrine of Newman has

been applied to award attorney’s fees under civil

rights provisions of the United States Code without

an express authorization of such fees. ... Such reason-

ing is persuasive in our case as well. See Cooper v.

Allen, supra. A suit under §§ 1981 and 1983 attacking

racial discrimination in employment clearly furthers

the will of Congress that such discrimination should

be eliminated.

498 F.2d at 144-145. The private attorney general theory

was also adopted by the Sixth Cireuit in Milburn v.

Huecker, 500 F.2d 1279 (6th Cir. 1974), Taylor v. Perini,

pesca

13

j (No. 73-2071, 6th Cir.) (Opinion dated October 3, 1974), the

Seventh Circuit in Donahue v. Staunton, 471 F.2d 475 (7th

Cir. 1972) cert. den. 410 U.S. 955 (1973) ; Morales v. Haines,

486 F.2d 880, 882 (7th Cir. 1973), the Third Cireuit in

Skehan v. Board of Trustees of Bloomsburg State College,

501 F.2d 31, 44 (3d Cir. 1974) and the Court of Appeals for

: the District of Columbia in Wilderness Society v. Morton,

495 F.2d 1026, 1029-1037 (D.C.Cir. 1974), cert. granted 43

U.S.L.W. 3185 (1974).

, In at least 24 cases federal district courts have awarded

counsel fees under the private attorney general rule, with-

out regard to the absence of “ynreasonable, obdurate

obstinacy.” See e.g., Harper v. Mayor and City Council of

Baltimore, 359 F.Supp. 1187, 1217-1218 (D. Md. 1973)

(employment discrimination; 42 U.S.C. §§ 1981, 1983) ;

Stanford Daily v. Zurcher, 366 F.Supp. 18, 21-26 (N.D.

Cal. 1973) (unlawful search and seizure ; 42 U.S.C. § 1983) ;

Ross v. Goshi, 351 F.Supp. 949, 955-56 (D. Hawaii 1972)

(free speech; 42 U.S.C. § 1983); Jinks v. Mays, 350 F.

Supp. 1037, 1038 (N.D. Ga. 1972) (employment discrimina-

tion; 42 U.S.C. § 1983) ; Holt v. Hutto, 363 F.Supp. 194,

917 (E.D. Ark. 1973) (prison conditions; 42 U.S.C. § 1983) ;

Newman v. State of Alabama, 349 F.Supp. 978, 286 (M.D.

Ala. 1972) (hospital conditions; 42 U.S.C. § 1983) ; Sims v.

Amos, 340 F.Supp. 691, 693-95 (M.D. Ala. 1972) (reappor-

tionment; 42 U.S.C. § 1983) aff’d 409 U.S. 942 (1972);

N.A.A.C.P. v. Allen, 340 F.Supp. 703, 707-710 (M.D. Ala.

1972) (employment discrimination; 42 U.S.C. § 1938); La

Raza Unida v. Volpe, 57 F.R.D. 94, 98, 102 (N.D. Cal. 1972)

(environmental protection) ; Kirkland v. New York State

Dept. of Correctional Services, 374 F.Supp. 1361, 1381-82

(S.D.N.Y. 1974) (employment discrimination; 42 U.S.C.

§§ 1981, 1983) ; Incarcerated Men. of Allen County v. Fair,

376 F.Supp. 483, 485 (N.D. Ohio 1973) (prison conditions ;

14

42 U.S.C. § 1983); Thonen v, Jenkins, 374 F.Supp. 134,

136-140 (E.D. N.C, 1974) (free speech; 42 U.S.C. § 1983) ;

Sierra Club v. Lynn, 364 F.Supp. 834, 847-48 (W.D. Tex.

1973) (environmental protection); Calnetics Corp. v.

Volkswagen, 353 F.Supp. 1219 (C.D. Cal. 1973) (Clayton

Act; 15 U.S.C. § 18); Wyatt v. Stickney, 344 F.Supp. 387

(M.D. Ala. 1972) (conditions in mental hospitals) ; Lyle v.

Teresi, 327 F.Supp. 688 (D. Minn. 1971), (police mis-

conduct; 42 U.S.C. § 1983); Morrow v. Crissler, 4 EPD

17563 (S.D. Miss. 1971) (employment discrimination, 42

U.S.C. §§ 1981, 1983); Ford v. White, (S.D. Miss. No.

1230 (N)) (Opinion dated August 5, 1972); Jordon v.

Gilligan, (N.D. Ohio) (opinion dated March 9, 1973), rev’d

on other grounds 500 F.2d 701 (6th Cir. 1974); Scott v.

Opelika City Schools, 63 F.R.D. 144, 149 (M.D. Ala. 1974)

(employment discrimination; 42 U.S.C. § 1983); Delaware

Citizens for Clean Air, Inc. vy. Stauffer Chemical Co., 62

F.R.D. 353 (D. Del. 1974) (environmental protection) ;

Council of Organizations on Philadelphia Police, ete. v.

Tate, 60 F.R.D. 615, 616 (ED. Pa. 1973) (police miscon-

duct ; 42 U.S.C. § 1983) ; Wallace v. House, 377 F.Supp. 1192

(N.D. La. 1974) (voting discrimination; 42 U.S.C. $1983);

Gilpin v, Kansas State High School Activities Association,

377 F.Supp. 1233, 1247-1253 (D. Kan. 1974) (sex discrimina-

tion; 42 U.S.C. § 1983). See also Doherty v. Wilson, 356

F.Supp. 35, 42 (M.D. Ga. 1973) (free speech; 42 U.S.C.

§ 1983); Smith v. City of East Cleveland, 363 F.Supp.

1131, 1151 (N.D. Ohio 1973) (employment discrimination;

42 U.S.C. § 1983); Brown v. Ballas, 331 F.Supp. 1033, 1037

(N.D. Tex. 1971) (housing discrimination; 42 U.S.0.

§ 1983) ; Hammond v, Housing Authority, 328 F.Supp. 586,

588 (D. Ore. 1971) (housing discrimination; 42 U.S.Q.

§ 1983) ; Stevens v. Dobs, Inc., 373 F.Supp. 618, 620 (E.D.

N.C. 1974) (housing discrimination; 42 U.S.C. § 1982).

15

In the instant case poth the District Court and the Court

of Appeals stressed that the defendants had not been

guilty of obdurately obstinate conduct. Pp. 11a, 17a. But

the absence of such conduct is not sufficient to preclude

an award of counsel fees under the private attorney general

standard. Newman v. Piggie Park Enterprises, 390 US.

400 (1968). Since an award of fees ‘under this rule is

intended to encourage litigation advancing the public

interest, the good faith of the defendants is irrelevant.

Many of the decisions awarding counsel fees to private

attorneys general in actions under 42 US.C. §$§ 1981-1983

have expressly stated that no obdurate obstinacy was .

found, See, e.g., Brandenburger vy. Thompson, 494 F.2d

888 (9th Cir. 1974) ; Stanford Daily v. Zurcher, 366 F.

Supp. 18, 25 (N.D. Cal. 1973) ; Thonen v. Jenkins, 374 ¥.

Supp. 134, 137 (E.D. N.C. 1974) ; LaRaza Unida v. Volpe,

57 F.RB.D. 94, 96 (N.D. Cal. 1972); Jinks v. Mays, 350

F.Supp. 1037, 1038 (N.D. Ga. 1972) ;* Ford v. White, (S.D.

Miss. No. 1230 (N)) (Opinion dated October 19, 1972).” »

In denying counsel fees the District Court and Court of

‘Appeals also argued that section 1983, unlike Title VII of

the 1964 Civil Rights Act, does not expressly authorize an

award of counsel fees. Pp. 11a, 18a. Title VIL itself is inap-

caeekasiaieanee

11 “LaRaza involved complicated legal questions ; by no means

were the duties of the state clear, and the court reaffirms its

earlier findings that the State Highway Department did not be-

have in Bad saith... [Defendants errors and conduct falls

short of obdurate behavior”.

12 “Tn its written opinion the Fifth Cireuit pointed out that the

record is devoid of evidence of any bad faith or unlawful motive

on the part of defendants”.

13 “The plaintiffs did not base their claim for attorneys’ fees

on any bad faith or unreasonableness on the part of the defen-

dants. From the outset, the defendants and their attorney worked

closely with the attorneys for the plaintiffs as is evidenced by the

final resolution of this case by a Consent Decree.”

16

plicable because this case was filed prior to the 1972

amendments applying Title VII to state and local govern-

ments. A similar argument was made by the Fourth

Circuit in Bradley, 472 F.2d at 328-331. But counsel fees

have been awarded to private attorneys general under

§ 1983 by the Fifth Cireuit, Cornist v. Richland Parish

School Board, 495 F.2d 189, 192 (5th Cir. 1974) (school

desegregation) the Ninth Circuit, Brandenburger v.

Thompson, 494 F.2d 885, 888-89 (9th Cir. 1974), the Eighth

Cireuit, Fowler v. Schwarzwalder, 498 F.2d 143 (8th Cir.

1974) (employment discrimination), and the Seventh

Circuit, Donahue v. Staunton, 471 F.2d 475, 483 (7th Cir.

1972). See also pp. 13a-14a, supra. In Fowler the Eighth

Circuit reasoned th#t the provisions of Title VII militated

for, not against, an award of counsel fees under § 1983.

The decision of the Second Circuit is clearly erroneous.

When a violation of federally protected rights is shown,

federal courts have the inherent “historic power of equity

to provide complete relief in light of the statutory pur-

poses.” Mitchell v, DeMario Jewelry, 361 U.S. 788, 291-

292 (1960). That power has traditionally included the au-

thority to award counsel fees as part of costs where

necessary “to do equity in a particular situation.” Sprague

v. Ticonic National Bank, 307 U.S. 161, 166-167 (1939).

This Court has previously recognized the important role

played by the availability of an award of attorneys’ fees

in cases such as this where private litigation is likely to

be expensive to maintain to a successful conclusion and

offer little promise of financial gain to the plaintiffs. Hall

v. Cole, 412 U.S, 1, 13 (1978). As the Solicitor General

correctly noted in supporting the private attorney general

theory in Bradley, such private enforcement is a critical

supplement to “otherwise limited government enforcement

resources.” ** It is inherently unjust that, while thousands

17

of tax dollars may be expended to defend unlawful govern-

ment action, the cost of securing compliance with the law

should be borne by 4 private plaintiff or his counsel.

Counsel fees have traditionally been awarded where this

serves to shift the cost of the litigation to a group which

has benefited therefrom, Hall v. Cole, 412 U.S. 1 (1973) ;

Mills v. Electric Auto-Lite Co., 396 US. 375 (1970). The

United States noted in Bradley that such fee shifting was

appropriate in such a case because the litigation had

“benefited the respondent school officials and the publie at

large by bringing about the elimination of unlawful, dis-

criminatory practices from the schools [and] by vindicating

their Fourteenth Amendment rights.” ** The same con-

siderations apply to the instant case.

It is not disputed that Petitioners, by maintaining this

action, did in fact vindicate public policies of the highest

importance and confer substantial benefit on the community

of Bridgeport. In awarding relief on the merits, the Dis-

trict Court conceded that the remedy not only advanced

the interests of minority applicants and patrolmen, but

vindicated the right of the citizens of Bridgeport “to the

enforcement of law by a police department staffed on a

non-discriminatory basis.” 354 F.Supp. at 797. The Court

of Appeals noted that fashioning an effective remedy

was of particular importance because “the visibility of the

Black patrolman in the community is a decided advantage

for all segments of the public at a time when racial

divisiveness is plaguing law enforcement.” 482 F.2d 1333,

1341 (2d Cir. 1973). In denying counsel fees the District

Court acknowledged the “sybstantial publie service that

a ieee

* Brief for the United States as Amicus Curiae, No. 72-1322,

p. 9.

15 Brief for the United States as Amicus Curiae, No. 72-1322,

pp. 11-12.

18

plaintiffs’ counsel have rendered in securing a vindication

of their clients’ constitutional rights, a result important

not only to plaintiffs but to the entire Bridgeport com-

munity.” This Court expressly recognized in Bradley v.

School Board of City of Richmond, 40 L.Ed.2d 476 (1974),

that ending racial discrimination is “a national policy of

high priority.” These circumstances require an award of

counsel fees under the private attorney general theory and

would have resulted in such an award in seven Circuits

other than the Second.

The question presented by this case is related to, but

not controlled by, the issues raised in Alyeska Pipeline

Service Co. v. The Wilderness Society, No. 73-1977, cert.

granted 43 U.S.L.W. 3185 (1974). The question raised by

the Petitioners in Alyeska is not, as here, whether counsel

fees may be awarded to private attorneys general in the

absence of express statutory authorization, but whether

such an award was proper on the unusual facts of that

case and in view of the national policies regarding con-

struction of the Alaska pipeline. If the award of counsel

fees in Alyeska is reversed, as in F.D. Rich Co. v. Indus-

trial Lumber Co., 40 L.Ed 2d 703, 714 (1974), the correct-

ness of the private attorney general rule will remain un-

resolved. If this Court affirms the award in Alyeska, that

will not resolve whether, as the Second Circuit concluded

below, counsel fees are precluded in cases such as this

because of Title VII of the 1964 Civil Rights Act. In view,

however, of the related nature of the issues presented,

Petitioners would not object to the setting of an accelerated

briefing schedule in the instant case so as to permit it to

be argued with Alyeska.

19

CONCLUSION

For these reasons, a Writ of Certiorari should issue to

review the judgment and opinion of the Second Circuit.

Respectfully submitted,

MicHaeEL P. Koskorr

1241 Main Street

Bridgeport, Connecticut 06603

Ira Horow1Tz

412 East Main Street

Bridgeport, Connecticut 06608

Jack GREENBERG

Eric ScHNAPPER

Suite 2030

10 Columbus Circle

New York, New York 10019

Counsel for Petitioners

APPENDIX

Memorandum of Decision of District Court

UNITED STATES DISTRICT COURT

District oF ConNECTICUT

Crviz No. B-457

Bripceport GUARDIANS, Inc., ET AL.,

Vv.

MemBers OF THE BRIDGEPORT Cr1vin

Service CoMMISSION, ET AL.,

MEMORANDUM OF Decision WITH Respect TO REMEDY

This case is before the Court for further action with

respect to formulation and implementation of a remedy.

By decision dated January 29, 1973, this Court ordered a

remedy with respect to both the hiring and promotion of

members of the Bridgeport Police Department. 354 F.Supp.

778. On June 28, 1973, the Court of Appeals for the

Second Circuit affirmed that decision with respect to the

hiring remedy but reversed with respect to the promotion

remedy and remanded that aspect of the case for further

proceedings. —— F.2d ——. The parties have been heard

informally in chambers and in open court on September 11,

1973.

L.

With respect to hiring, the essential task is to imple-

ment those portions of this Court’s original decree that

la

2a

Memorandum of Decision of District Court

concern the appointment of patrolmen.' Defendants have

submitted to the Court a detailed document prepared by

the personnel director of the Civil Service Commission,

which was marked in evidence as Deft. Ex. 2 at the Sep-

tember 11 hearing. (Exhibit A to this Memorandum of

Decision). That document outlines a program for assem-

bling the minority pool from which appointment of qual-

ified minority patrolmen will be made. Plaintiffs made

no objection to defendants’ proposal, but offered eight

additional suggestions (Pl. Ex. A), the first four of which

defendants accepted. The Court agrees that the defen-

dants’ proposals, as supplemented by the first four of

plaintiffs’ suggestions, should be implemented. Since de-

fendants have represented that they intend to implement

these proposals and wince some flexibility in developing

the details of the proposals is desirable, it seems prefer-

able at this point not to incorporate the proposals into

a formal decree.* With jurisdiction of the case retained

pending final implementation of the hiring remedy, plain-

tiffs can apply to this Court if the need should arise for

1 Plaintiffs urge that a substantive change should be made in

the hiring remedy because of the Court of Appeals’ rejection of

a promotion quota. They contend that the quota of minority

patrolmen, previously established at 15% until the number of

minority patrolmen reaches fifty, should be increased to offset the

reduction in minority officers that results from the elimination

of the promotion quotas in order to maintain an overall depart-

ment minority quota of 15%. Since the hiring portion of the

original decree was affirmed, with no cross-appeal taken by plain-

tiffs in response to defendants’ attack on the promotion quotas,

it is doubtful if the level of the hiring quota remains an open

question. Even if it is, I am not inclined to adjust the figure.

* Defendants still remain obligated, pursuant to paragraph 3

of the original decree, to submit to this Court for approval the

details that are still to be developed as to the criteria and pro-

cedures to be used in determining the qualifications for the minor-

ity pool.

3a

Memorandum of Decision of District Court

supplementary relief to insure that the defendants’ pro-

posals are being implemented. In the event the defen-

dants require a further order of this Court to validate

the proposed appointments as against conflicting state or

local provisions, they can apply for an appropriate order.

It may well be that the only formal order needed in this

regard will be an order confirming the validity of the

appointment of the successful applicants from the minority

pool.

Defendants have also submitted (Deft. Ex. 1) a sched-

ule for appointment of minority and non-minority patrol-

men in accordance with the provisions of the original

decree of January 29, 1973. That schedule is approved

with one minor correction. Paragraph 2(a)(3) of the

original decree specified that the quota provisions remain

in effect until the number of Black and ‘Puerto Rican

patrolmen is 50. Deft. Ex. 1 misreads that provision to

refer to 50 minority members on the police force. There

is now one minority detective. Thus, after the 28 minority

patrolmen have been appointed as contemplated in defen-

dants’ schedule, the remaining number to be appointed

will be six, rather than five as stated in the exhibit. This

figure will increase if some minority patrolmen become

detectives or sergeants before the total number of minority

patrolmen reaches 50.

All parties apparently expect the November 3 examina-

tion planned by defendants to produce a sufficiently large

minority pool of qualified applicants to meet the require-

ments of the original decree. If that expectation is dis-

appointed, defendants will have to submit additional pro-

posals to this Court to implement the original decree.

Defendants have also raised an additional point with

respect to paragraph 4 of the original decree. That pro-

ta

Memorandum of Decision of District Court

vision maintained the validity of the existing eligibility

list for pat.olmen so that it could be used “in filling posi-

tions that became vacant within two years of the effective

date” of such list. Since some of these positions will be

filled from the minority pool, defendants want the existing

patrolmen’s list to be valid for use in filling any vacancies

that would have been filled within two years from the

effective date of this list without regard to this lawsuit.

In other words, the list is to be valid until it has been

used to fill the number of patrolmen’s positions that become

vacant during the two-year period starting with the effec-

tive date of the list. A similar problem with respect to

the existing eligibility list for the rank of detective has an

added complication because of the reduced time-in-grade

requirement, and will be considered in Part II, infra.

II.

With respect to the remedy to be fashioned for promo-

tion above the rank of patrolmen the parties make sharply

conflicting claims. Plaintiffs urge that a quota or some

other form of minority preference be part of the remedy.

They recognize that the opinion of the Court of Appeals

rejected the use of a quota with regard to promotion.

They insist nevertheless that the Court of Appeals deci-

sion was made only with regard to the record as developed

at the time of this Court’s original decree, and that addi-

tional evidence will establish the propriety of a remedy

that includes a quota. Specifically, they have made an

offer of proof to establish two propositions: first, that

significant recruitment of minority patrolmen will be seri-

ously impeded as long as minority representation in super-

visory ranks remains non-existent or minimal, and second,

that the absence of minority officers in the ranks of the

5a

Memorandum of Decision of District Court

Bridgeport Police Department has had and will continue

to have an extremely adverse effect upon relationships

between the department and the minority population of

Bridgeport.

It was precisely considerations of this sort that led

this Court to include a quota in its original decree. Addi-

tional evidence is not needed to persuade me of the validity

of these propositions. But I do not read the opinion of

the Court of Appeals as rejecting a promotional quota

simply because the record as previously developed failed

to indicate sufficient need for such remedy. Rather the

Court of Appeals appears to have ruled as a matter of

“aw”—at least the law of equitable remedies—that in the

absence of a finding that a promotion exam has produced

discriminatory results that cannot be justified by a demon-

stration that the exam is job related, a promotional quota

may not be used to remedy the absence of minority offi-

cers even though their absence is the ultimate result of

a discriminatory hiring barrier at the level of patrolmen.

The Court of Appeals has ruled that the concept of

remedying the effects of past discrimination may not de-

feat the expectations for promotion of those Whites who

are already members of the police department. One may

wonder why this rule should apply with equal force not

to applicants for promotion above the rank of sergeant,

who have achieved their present officer rank through com-

petition in exams not shown to be discriminatory, but also

to applicants for promotion to the rank of sergeant, who

have achieved their present rank of patrolmen only

through competition in an exam found to be racially dis-

eriminatory. But the ruling of the Court of Appeals is

clear, and I understand it to preclude the use of quota

or other preference in any promotional ranks to remedy

6a

Memorandum of Decision of District Court

the effects of past discrimination in the hiring of patrol-

men, regardless of any evidence that might show how

desirable such a quota might be.

The contention of defendants is that the Court of Ap-

peals has precluded not only a quota or other preferential

device with respect to promotions, but also any remedy

selected with racial considerations in mind. I do not read

the Court of Appeals’ opinion to have gone so far. The

opinion directs that “any feasible amendment [to the pro-

motion procedures of the Bridgeport police department]

apply to all candidates for promotion irrespective of race

and ethnic background.” It seems evident, however, that

the Court of Appeals was not precluding, but was actually

inviting consideration of changes that might increase the

chances of minority members being promoted. For ex-

ample, the Court of Appeals specifically suggested as a

“possible solution” a reduction in the current three-year

time-in-grade requirement for promotion eligibility. The

obvious purpose of such a change is to make it possible

for the new minority patrolmen to be considered for pro-

motion earlier than they otherwise would be. The Court

of Appeals was not proposing alternative remedies simply

to hasten promotion in the interest of some preferred

notion of public administration. The problem for which

it was offering a possible solution is the absence of minor-

ity officers. Plainly the Court was permitting this problem

to be borne in mind, provided only that the solution, once

selected, applied ® all candidates*for promotion without

regard to race or ethnic background.

With these considerations in mind, the details of a

promotional remedy can now be considered. The defen-

dants have suggested several changes in the existing

promotion procedure: reduction of the time-in-grade

7a

Memorandum of Decision of District Courts!

requirement to one year; replacement of the present rating

for training, experience and general qualifications, which

is based solely on time in the police department, with a

new system basing the rating on the results of oral inter-

views before an examining panel; replacement of the

Probst system of rating service records with a new rating

form to be developed by McCann Associates ; validation of

all promotion exams to be used in the future. These pro-

posals are set forth in Deft. Ex. 2. In addition counsel

suggested that a list of those eligible for promotion be

prepared every two years so that vacancies can always

be promptly filled as they occur. Plaintiffs do not oppose

any of these suggestions. The Court agrees that these

proposals should be implemented. As with the hiring

remedy, it seems preferable not to incorporate these pro-

posals into @ formal decree.’ The defendants will be

required to submit progress reports on November 15, 1973,

and at three-month intervals thereafter until the hiring

remedy has been fully implemented to advise the Court as

to the progress being made with respect to both the hiring

and promotion remedies.

The parties are in dispute with respect to (a) eight

sergeants and ‘three detective positions that were filled

from existing lists in July, 1973, and (b) the filling ‘of

sergeant and detective vacancies that may arise hereafter.

Plaintiffs want the 11 positions already filled to be declared

vacant (with the incumbents continuing on an acting basis

only), and these positions and all others in these ranks

——raerr = ‘

3'This proposal is: responsive, to the Court of Appeals’ sugges-

tion that the weight accorded seniority be reduced. Since the old

T E.G.Q. factor was virtually a measure of seniority, this factor,

weighted at 30%, when eombined with the straight seniority fac-

tor, weighted at 10%, produced a 40% weight for seniority. The —

new proposal reduces seniority weight to 10%.

8a

Memorandum of Decision of District Court

that may become vacant during the coming year to be

-held open for one year from the appointment of the new

minority patrolmen. Defendants object to any change in

the status of the 11 promotions already made and urge

that existing lists be used for future appointments.

The circumstances surrounding the filling of the 11 posi-

tions do not reflect credit upon either the Bridgeport Police

. Department or the Bridgeport Civil Service Commission.

The positions were filled before the mandate of the Court

of Appeals reached this Court, a mandate that directed this

Court to formulate a new promotion remedy. It is apparent

that the defendants acted with unseemly haste to’ present

this Court with a fait accompli. I do not intend to reward

the defendants for their speed, nor do I intend to chastise

the. defendants at the expense of the men who received

these promotions. Since I do not doubt my jurisdiction to

alter the 11 promotions to acting status, I will deal with

these 11 positions as if they were presently vacant and

exercise equitable discretion without regard to the defen-

dants’ precipitous action.

The choice is between permitting promotions to be made

_in the normal course or requiring promotions on an acting

basis only until such time as the new minority patrolmen

(or a substantial number of them) are eligible to be con-

sidered for promotion under the new reduced time-in-grade

requirement. I do not believe it is a sound exercise of

discretion to require these eight sergexnt positions to be

held vacant for a prolonged length of time in addition to

the time they were already held vacant pending the initial

decision‘in this suit, nor do I think it advisable to formu-

late a remedy that risks displacing men who would be

promoted to these positions on an acting basis to meet the

legitimate needs of the police department. The competing

9a

Memorandum of Decision of District Court

equity, of course, is the chance of hastening the promotion

of minority sergeants. Since eight positions are involved,

and the patrolmen ranks will include 15% minority mem-

bers even if the hiring remedy is expeditiously imple-

mented, only one minority patrolman could reasonably be

expected to secure one of these sergeant promotions if the

law of averages is working. The adverse consequences of

the plaintiffs’ proposal is not worth this benefit, which is

only to advance by one year the time when a minority

patrolman could be expected to secure promotion.

The relevant factors apply somewhat differently to

sergeant and detective positions that become vacant one

year after a significant number of minority patrolmen have

been appointed. At that point, the reduced time-in-grade

requirement that the defendants have agreed to implement

will render the new minority patrolmen eligible for pre-

motion to detective and sergeant. A remedy that insures

their consideration for promotions oceurring thereafter

does not require the department to hold vacancies open nor

does it risk displacing men promoted on an acting basis.

Such a remedy would simply terminate somewhat early

the validity of existing detective and sergeant lists in

order to give effect to the new time-in-grade requirement.

It is true that such a remedy may disappoint the expecta-

tions of those who stand high on the existing sergeant’s

list and who would have been promoted but for early

termination of the list’s validity. But these men‘ will not,

4 At oral argument. counsel for the named intervening mem-

bers of the police denartment questioned whether a decree could

be formvlated that altered any of the rights of those who stand

high on current eligibility lists without such persons being for-

mally joined as parties in this suit. Since the named intervenors

include members of the department at all ranks, counsel for the

named intervenors has vigorously asserted the interests of all

10a

Memorandum of Decision of District Court

as with a quota or preference, be rejected because of their

race. Rather they will simply have to enter a new com-

petition among a field enlarged by both the required

hiring of minority patrolmen and the reduced time-in-grade

requirement. If the new time-in-grade requirement is to be

promptly implemented, then this requirement of a new

competition would befall any person high on the existing

eligibility list regardless of race; moreover such persons

will be entering a competition in which no racial prefer-

ences will exist. If they are better than the then current

crop of eligibles, they will still be promoted; if they are

not, it will not be because of any racial preferences.

ITI.

Plaintiffs seek to have attorneys’ fees included in the

costs to which they are entitled as the prevailing party in

this litigation. There is no doubt that attorneys’ fees can

be awarded as a matter of discretion in the absence of

statutory authorization. Sprague v. Ticonic National Bank,

307 U.S. 161 (1939). And where such discretion is re-

enforced by statute in the context of racial discrimination,

that discretion is to be generously exercised. Newman v.

Piggie Park Enterprises, Inc., 390 U.S. 400 (1968). But

this suit was not brought under Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et seq. It is an action

under 42 U.S.C. § 1983 to redress the denial of rights se-

cured by the Fourteenth Amendment. While the concept

of private attorneys general is an important one, engrafting

present members of the department, and the existence of this suit

has been well known to all members of the department, it seems

appropriate to treat this case as a class action with respect to

the members of the police department ‘and to consider the class

as adequately represented by the named intervenors.

lla

Memorandum of Decision of District Court

it on to § 1983 so as to make attorneys’ fees “ordinarily”

recoverable, Newman V. Piggie Park Enterprises, Inc.,

supra, 390 U.S. at 402, would amount to a judicial amend-

ment of § 1983 with a provision Congress has thus far not

placed there.

The Court of Appeals has recently stated the standard

for awarding attorneys’ fees in a § 1983 suit to be whether

bringing the suit was unnecessary and was compelled by

the defendant’s “ynreasonable, obdurate obstinacy.” Stol-

berg v. Trustees for the State Colleges of Connecticut, 474

F.2d 485, 490 (2d Cir. 1973). While Stolberg involved in-

tentional denial of constitutional rights, it will not always

be necessary to prove intentional discrimination to be en-

titled to attorneys’ fees. But once the claim of diserimina-

tion has been made, there must be some indication that the

defendant’s decision to resist the claim imposed upon plain-

tiffs an unwarranted burden, That cannot be said in this

ease. Testing employment examinations against the Four-

teenth Amendment is a developing area of the law, and at

least as of the date when this suit was brought, the defen-

dants’ decision to resist plaintiffs’ suit was not unreason-

able or obstinate. No case in this District had dealt with the

issues, and only one case in the Court of Appeals was in

point. Chance v. Board of Examiners, 458 F.2d 1167 (2d

Gir. 1972). Moreover, this litigation required resolution

of an issue left unanswered by Chance—namely, whether

an examination that produced discriminatory results could

be used where there was some rational relationship to @

needed aptitude where but adequate evidence of job re-

latedness was lacking. On evidence similar to what was

presented in this case, municipal employers in the future

may be held to have resisted subsequent litigation un-

necessarily. These defendants, however, were warranted

12a

Memorandum of Decision of District Court

in litigating without assuming the risk of paying their ad-

versaries’ counsel fees, This does not diminish in any way

the substantial public service that plaintiffs’ counsel have

rendered in securing a vindication of their clients’ consti-

tutional rights, a result important not only to plaintiffs but

to the entire Bridgeport community. Hopefully, when the

current frictions inevitably created by such litigation have

eased, this suit will be recognized by all concerned to have

been in the long-term best interests of the Bridgeport

Police Department.

Accordingly, the decree previously entered on January

29, 1973, is modified as follows:

1. Paragraphs 2(b)-2(e) and all references to positions

above the rank of patrolman in paragraph 2 are deleted.

2. Paragraph 4 is deleted and replaced with the follow-

ing paragraph:

4. This Court’s order of October 19, 1972, tolling as of

March 6, 1972, the period of validity of existing eligibil-

ity lists for the rank of patrolman and detective, is

modified to provide that the existing eligibility lists

for the ranks of patrolman, detective, and sergeant are

valid for use in filling the number of positions for each

such rank that become vacant within two years of the

effective dates of such lists, except that the existing

eligibility lists for the ranks of detective and sergeant

shall cease to be valid one year after the date on which

the fifteenth patrolman has been appointed from the

minority pool.

13a

Memorandum of Decision of District Court

3. New paragraphs 5, 6, 7, and 8 are added as follows:

5. The defendants shall proceed to implement sub-

stantially in conformity with the documents submitted

and representations made to the Court at the hearing

on September 11, 1973, both the hiring and promotion

proposals they have submitted to this Court and the

proposals of the plaintiffs they have agreed to imple-

ment.

6. In the event that the examination scheduled for

November 3, 1973, does not produce enough qualified

minority applicants to bring the number of Black and

Puerto Rican patrolman up to fifty, defendants will

submit to this Court additional plans for the addition

of qualified candidates to the minority pool.

7. The defendants will submit to the Court progress

reports on November 15, 1973, and at three-month in-

tervals thereafter until paragraph 2(a)(3) has been

complied with, advising as to the progress made in the

implementation of this decree.

8. Costs, not including attorneys’ fees, are allowed to

plaintiffs.

Dated at New Haven, Connecticut, this 3 day of October,

1973.

/s/ Jox. O. NEWMAN

Jon O. Newman

United States District Judge

l4a

Opinion of the Court of Appeals

UNITED STATES COURT OF APPEALS

For THe Seconp Circuit

ee i

Nos. 898, 899—September Term, 1973.

(Argued April 30, 1974 Decided June 3, 1974.)

Docket Nos. 73-2595, 74-1014

Site

dite <i dl

Brivceport Guarpians, INC., ET AL.,

Plaintiff s-Appellees,

Cross-Appellants,

—against—

Members OF THE Bripceport Civ

Service CoMMISSION, ET AL.,

Defendants-Appellants,

Cross-Appellees.

Before:

Waterman, Frienpiy «nd MULLIGAN,

Circuit Judges.

or

Appeal and cross-appeal from an order of the United

States District Court for the District of Connecticut, Jon

O. Newman, Judge, formulating and implementing remedy

in employment discrimination action, and denying plaintiffs

attorneys’ fees.

Affirmed.

lia

Opinion of the Court of Appeals

Tra Horowitz and MicHakL P. Kosxorr, Bridge-

port, Connecticut, for Plaintiff s-Appellees.

J. DanieL SaGARIN, Bridgeport, Connecticut and

Ricnarp SHEIMAN, Asst. City Attorney,

Bridgeport, Connecticut, for Defendants-

Appellants.

Y

Muuucan, Circuit Judge:

The appeal and cross-appeal here involve litigation

which was commenced on February 24, 1972, in the United

States District Court for the District of Connecticut, by

the Bridgeport Guardians, Inc., the Housing Police

Benevolent Association and several Black and Puerto

Rican individuals who had taken but failed merit system

examinations for initial appointments and promotions

within the Bridgeport Police Department. The defen-

dants, members and the Director of the Bridgeport Civil

Service Commission and the Superintendent of the Bridge-

port Police Department, were principally charged with

administering entrance and promotion examinations which

discriminated against Black and Spanish speaking per-

sons on the basis of race, color and/or national origin.

Declaratory and injunctive relief was sought under the

Civil Rights Acts, 42 U.S.C. §§ 1981, 1983" and the De-

claratory Judgment Act, 98 U.S.C. §§ 2201-02.

On January 29, 1973, Hon. Jon O. Newman filed a

Memorandum of Decision, reported at 354 F. Supp. 778,

1 This action was filed before the 1972 amendment to Title VII

of the Civil Rights Act of 1964, Pub. L. No. 92-261, § 2(1)-(2),

86 Stat. 103 (March 24, 1972), amending 42 U.S.C. § 2000e(a)-

(b) (1970), which had the effect of extending coverage of the Act

to state and municipal employees.

16a

~

Opinion of the Court of Appeals

in which he found that the entrance test was _unjustifiably

discriminatory in effect, but that the plaintiffs had failed

to sustain their burden of proof with respect to the pro-

motion exam. As a remedy, the district court enjoined

further use of the entrance examination and imposed hir-

ing and promotion quotas which would have raised the

level of minority employment within the Department to

about 15%; the hiring quota was designed to introduce

50 Black and Puerto Rican patrolmen onto the force.

On June 28, 1973, we issued an opinion, reported at

482 F.2d 1333, affirming the judgment of the district court

except with respect to the promotion quotas. We found

that these were not warranted, but remanded to ‘the dis-

trict court so that it could consider whether other relief

was appropriate. Familiarity with our prior opinion is

assumed.

On remand, Judge Newman heard the parties informally

in open court and in chambers, and on October 3, 1973,

filed a Memorandum of Decision formulating and imple-

menting a remedy in conformity with this court’s opinion

that any modification of promotion procedures should

“apply to all candidates for promotion irrespective of

race or ethnic background.” 482 F.2d at 1341. He re-

fused to impose a modified promotion quota or to enlarge

the hiring quota, but the time-in-grade criterion for -eli-

gibility for promotion was reduced from 3 years to 1 year

and the weighting of seniority, and training, experience

and general qualifications in the promotion procedure was

decreased from 40% to 10%. Moreover, the court deter-

mined that the existing eligibility list for the rank of

sergeant should cease to be valid one year after the date

on which the 15th minority patrolman is appointed. >

17a

Opinion of the Court of Appeals

The plaintiffs urged below and on this appeal that the

hiring quota should be increased to 75 so that the 15%

minority level is achieved. We agree with the district

court that the affirmance of this part of Judge Newman’s

initial decree by this court was unqualified and we see

no reason to change the views expressed there. Plaintiffs’

claim that the absence of immediate minority group rep-

resentation in supervisory ranks undercuts recruitment

because of discouragement is effectively answered by the

fact that some 271 applications were received from minor-

ity members for the examination held after this court’s

initial decision. 231 took the exam and 81 were success-

ful. After disqualification for failure to meet announced

requirements as well as to pass physical examinations, an

eligible list of 35 has emerged.

The defendants have appealed from the determination

shortening the life of the sergeant’s eligibility list. They

urge that it is an abuse of discretion since promotion candi-

dates are normally entitled to have their rankings stand

for a two-year period. We do not agree. The court below

is familiar with and sensitive to the issues here, which

are delicate as well as intricate. There has been, in our

view, compliance with the decision of this court, and the

fashioning of the remedy here is a particularly appropriate

task for the district court. Coalition for Educ. in Dist, One

vy. Board of Elections, slip op. 2989, 2996 (2d Cir. April 24,

1974) (per curiam).

Plaintiffs further urge that the court below abused its

diseretion by refusing to grant counsel attorneys’ fees as

part of costs. The district court found that it had discre-

tion to award attorneys’ fees, but declined to exercise it

here since the litigation was not compelled by the defen-

dants’ “unreasonable, obdurate obstinacy,” the test em-

18a

Opinion of the Court of Appeals

ployed by this court in Stolberg v. Trustees for the State

Colleges of Connecticut, 474 F.2d 485, 490 (1973). While

attorneys’ fees are permitted in actions brought under

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e

et seq., by express statutory authorization, 42 U.S.C.

§ 2000e-5(k), the failure of Congress to provide for such

fees in § 1983 cases is, in our view, significant. While we

do not rule out the possibility that counsel fees might be

appropriate in some § 1983 cases, even absent statutory

authority, we see no reason to reverse the determination

below denying them. In Jordan v. Fusari, slip op. 3059,

3066 (2d Cir. April 29, 1974), this court remanded the ques-

tion of the propriety of legal fees in a § 1983 action to the

district court in view of the inadequacy of the record be-

fore the district judge in that case. There is no such prob-

lem here. The trial judge was fully aware of all of the

facets of this case, the contribution made by counsel for

plaintiffs, as well as the reasonableness of the resistance

to the plaintiffs’ claims by the defendants. We do not find

any abuse of discretion.

Affirmed.

2 We do not overlook the Supreme Court's recent opinion in

Bradley v. School Bd., 42 U.S.L.W. 4703 (U.S. May 15, 1974). a

school desegregation case commenced in 1961 under § 1983. The

Court there held that § 718 of Title VII of the Emergency School

Aid Act, 20 U.S.C. § 1617, which became effective on July 1, 1972,

see Pub. L. 92-318 §2(¢)(1), 86 Stat. 236, had application to

pending litigation «nd provided a basis for a fee award. Section

718, however, expressly authorizes the recovery of attorneys’ fees

in school desegregation suits brought under § 1983. Here no such

statute exists.

19a

Order of the Court of Appeals Denying Rehearing

UNITED STATES COURT OF APPEALS

Szconp Circuit

At a Stated Term of the United States Court of

Appeals, in and for the Second Cireuit, held

at the United States Court House, in the

City of New York, on the fifteenth day of

August, one thousand nine hundred and

seventy-four.

Present:

How. Srerry R. WATERMAN,

How. Henry J. Frtenpiy,

How. Wim H. Mvtwicas,

Circuit Judges.

73-2595,

74-1014

Brwcerort Guagpians, Lvc., et al.,

Plaintiff s-Appellants,

Cross-Appellees,

v.

MEMBERS OF THE BRIDGEPORT

Crviz Service Commission, et al.,

Defendants-Appellees,

Cross-Appellants.

A petition for a rehearing having been filed herein by

counsel for the appellants

20a

Order of the Court of Appeals Denying Rehearing

Upon consideration thereof, it is

Ordered that said petition be and hereby is denied.

A. Dante Fusaro

Clerk

/s/ Vincent A, Cariin

By Vincent A. Carin,

Chief Deputy Clerk