# Petition for Writ of Certiorari — Bridgeport Guardians v. Bridgeport Civil Serv Comm (No. 74-543) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0702%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1974 ## Text 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) $ 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0702%3A1. Public record. Not legal advice.