Brief for the Respondent in Opposition — Bridgeport Guardians v. Bridgeport Civil Serv Comm (No. 74-543)

aT, Ue &

./PREME cou i U

IN THE JAN 3 1975

Supreme Court of the Anite ) States. ik,

October Term, 1974

4F-543

BRIDGEPORT GUARDIANS, INC., ET AL

VS.

MEMBERS OF THE BRIDGEPORT CIVIL

SERVICE COMMISSION, ET AL

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR MEMBERS OF THE BRIDGEPORT

CIVIL SERVICE COMMISSION IN OPPOSITION

Richard M. Sheiman

Deputy City Attorney

202 State Street

Bridgeport, Connecticut 06604

Jack Samowitz

Legal Aid

202 State Street

Bridgepert, Connecticut 06604

Counsel for Defendants, Members

of the Bridgeport Civil Service

Commission

eel

i

INDEX

Page

Opinions Below .............eeeeecceescsscceceees 1

TUE on wc ccc cc cccccoscnpocenncccectseesee 2

Questions-Presented ...........cccccccccccccesves 2

Statutes Involved ..........cccsccccccccccccccccees 2

PIII oi cicnnks son cds asnrvanescsneseer ¢vtscees 3

Argument ..........ccccccccccccccsccssccccceces 3

CII So ee ee occ c i ccckcnscccccscsenecens 8

CITATIONS

CASES: Page

Delaware Citizens For Clean Air, Inc. v. Stauffer

Chemical Co., 62 F.R.D. 353....-----eeeeeeeceeee 7

Diamond Shamrock Corp. v. Lumbermen’s Mutual

Gas Co., 406, F.2d 722 ......-eeeeeececccrecceces 5

Hall v. Cole, 93 S.Ct. 1943... ...----eeeeerecccercees 4

Jinks v. Mays, 464 F.2d 1223 ....--++-eeercerrerees 8

Kirkland v. New York State Dept. of Correctional

Service, 374 F. Supp. 1861 .....--+--eeeerererre’ 6

Knight v. Anciello, 453 F.2d BBS oc cccccccccvcccces ie

Lee v. Southern Home Sites Corp.,444 F.2d 143...... 7

Newman v. Piggie Park Enterprises, Inc., 390

0. OD. ccc ccckcvccednncvsyesennvscesseroce® 6

Northcross v. Board of Ed. of Memphis City

Schools, 93 S.Ct. 2202 ....----eeeeeercercecres 5,7

Smith v. City of East Cleveland, 363 F. Supp.

Stolberg v. Trustees for State Colleges of Con-

necticut, 474 F.2d 485 ....---eeeeeeeeecerceerees 4

Wilderness Society v. Morton, 42 L.W. . ere 6

IN THE

Supreme Court of the United States

October Term, 1974

No. 75-543

BRIDGEPORT GUARDIANS, INC., ET AL

Vs.

MEMBERS OF THE BRIDGEPORT CIVIL -

SERVICE COMMISSION, ET AL

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR MEMBERS OF THE BRIDGEPORT

CIVIL SERVICE COMMISSION IN OPPOSITION

OPINIONS BELOW

The opinion of the Court of Appeals is reported at 497

F. 2d 1113 and is reprinted in Petitioners’ Appendix pp.

14a-18a. The opinion of the District Court is not report-

ed, but is reprinted in 8 EPD { 9508 and is set out in Peti-

tioners’ Appendix pp. 1a-13a.

2

JURISDICTION

The Courts jurisdiction is invoked under 28 U.S.C.

§1254 (1).

QUESTION PRESENTED

It is mandatory that the Federal Courts must use the

theory of a private Attorney General when deciding

whether to award attorney fees in a class action Section

1981 and 1983, 42 United States Code case, or may the

Federal Courts exercise discretion depending upon the

facts of the case?

STATUTORY PROVISIONS INVOLVED

Section 1981, 42 United States Code:

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 evi-

dence, and to the full and equal benefit of all laws and

proceedings for the security of persons and property as

is enjoyed by white citizens, and shall be subject to like

punishments, pains, penalties, taxes, licenses, and exac-

tions of every kind, and to no other.

Section 1983, 42 United States Code:

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

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

ritory, subjects or causes to be subjected, any citizen of

the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall

be liable to the party injured in an action at law suit in

equity, or other proper proceeding for redress.

3

STATEMENT

Petitioners commenced action pursuant to 42 U.S.C.

44 1981 and 1983 to challenge the hiring and promotion

procedures of the Bridgeport, Connecticut, Police De-

partment. Plaintiffs in addition to being members of the

Police Department were also members of the Black and

Puerto Rican community. The plaintiffs prevailed con-

cerning the entering level but were reversed as to

remedy involving promotions. After two years, the

plaintiffs did not win the litigation which they sought,

but rather a major portion of their litigation was re-

versed by the Court of Appeals for the Second Circuit.

The District Court denied the award of attorney fees.

The Court was well within its discretion in denying costs

because the District Court was aware of the role of all of

the parties in the attempted settlement of the case. It

was only when the settlement discussions broke down

neither of the parties were agreeable to a result similar

to the final result that the entire litigation continued. In

addition, most of the parties who had an interest in be-

coming members of the force were represented by Ira

Horowitz who is with the Bridgeport Legal Services.

ARGUMENT

Petitioners contention that the issue involved is

whether Federal Courts have the authority, in the ab-

sence of express statutory authorization, to award attor-

ney fees to a successful plainti*” who acts as a private at-

torney general in enforcing important public policies is

not the facts of the present case. Judge Newman did not

decide that the plaintiffs’ attorneys were acting as pri-

vate attorney generals. And even if the Judge would

have, he still has an option as to awarding attorney fees.

The law is clear on this point.

4

“Although the traditional American rule ordinarily

disfavors the allowance of attorneys’ fees in the ab-

sence of statutory or contractual authorization,

federal courts, in the exercise of their equitable

powers may award attorneys’ fees when the inter-

est of justice so require. Indeed, the power to award

such fees “is part of the original authority of the

chancellor to do equity in a particular situation,”

and federal courts do not hesitate to exercise this

inherent equitable power whenever “overriding

considerations indicate the need for such a recov-

ery.

Thus it is unquestioned that a federal court may

award counsel fees to a successful party when his

opponent has acted “in bad faith, vexatiously, wan-

tonly or for oppressive reasons.” In this class of

cases, the underlying rationale of “fee-shifting” is of

course punitive, and the essential elements in trig-

gering the award of fees is therefore the existence

of “bad faith” on the part of the unsuccessful liti-

gant.”

Hall v. Cole, 93 S.Ct. 1943, 1945, 1946.

Although the award of attorney fees is restricted to

exceptional cases another standard for awarding attor-

ney fees is whether bringing the suit was unnecessary

and was compelled by the defendants “unreasonable, ob-

durate, cbstinancy”. This does not mean that if a defend-

ant decides to resist a claim of discrimination in every

case, that he is unreasonable or obstinate.

Stolberg v. Trustees for State Colleges of Connecti-

cut, 474 F.2nd 485, 490.

Mere fact that a defendant is unsuccessful will not jus-

tify an award of attorney fees.

5

Diamond Shamrock Corp. v. Lumbermen’s Mutual

Gas Co., 406, F.2nd 722.

If awards of attorney fees are to be made to promote

public policy expressed in legislative action, they should

be authorized by Congress and not by the Court. Counsel

fees are not ordinarily recoverable in absence of statu-

tory or contractual authority and only in exceptional

cases. Even in cases whereby statute attorney fees are

permitted in \special circumstances the courts have the

discretion of not making any award.

Northcross v. Board of Ed. of Memphis City

Schools, 93 S.Ct. 2202.

Congress has not seen fit to pass any legislation mak-

ing an award of attorney fees permissible in any case

brought under 42 U.S.C.A. 1983 and, therefore, the

court could only award attorney fees in a very exception-

al case in the discretion of the court.

Some courts in their discretion in awarding attorney

fees have adopted what is referred to as “private attor-

ney general theory”. The rationale for making these

awards is that its effect will be to encourage litigants to

vindicate public rights without concern for the consider-

able financial burden of legal fees. In this case, the court

merely stated that,awarding attorney fees was not man-

datory in every brought under the concept of pri-

vate attorney general. The award of attorney fees is al-

ways discretionary. To be otherwise, might be danger-

ous. The chief rationale behind the traditional American

rule that bars the award of fees to successful litigants, is

the fear that parties might be unjustly discouraged from

instituting or defending actions to vindicate their rights

if the penalty for losing in court would always include

fees for the opponents’ counsel.

6

Wilderness Society v. Morton, 42 L.W. 2526.

The private attorney general theory is not rejected by

our Circuit. The Guardians’ decision stands for the prop-

osition that: “While the concept of private attorney gen-

erals is an important one, engulfing it on Sec. 1983 so as

to make attorneys’ fees “ordinarily” recoverable, New-

man v. Piggie Park Enterprises, Inc., supra 390 U.S.

402, would amount to a judicial amendment of Sec. 1983

with a provision Congress has thus far not placed there.”

See Memorandum of Decision of District Court,

pet. 10a-11a.

Kirkland v. New York State Dept. of Correctional

Service, 374 F. Supp. 1361, 1381-82 (1974) a Second

Circuit case applied the private attorney general theory

in awarding attorney fees in a similar suit but signifi-

cantly a subsequent case and one in which the plaintiffs

were totally successful. It is also significant to note that

the petitioners’ attorney, Jack Greenberg, handled the

Kirkland case and should be aware that the Second

Circuit applied the private attorney general theory when

it so sees fit. Judge Newman decided that under the cir-

cumstances of the Bridgeport Guardian case, it would be

unjust to award attorney fees or apply the private attor-

ney general theory.

See Memorandum of Decision of District Court,

pet. 10a-12a.

The District Court was well within its discretion in

denying costs because the District Court was aware of

the role of the parties in the attempted settlement of the

case. It was only when the settlement discussions broke

down that neither of the parties were agreeable to a

7

result similar to the final result that the entire litigation

continued. “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’ claim by the defendants. We do not find

any abuse of discretion.”

Opinion of the Court of Appecis, pet. 18a.

“The award of attorneys’ fees to a prevailing party

in these situations is an exercise of the general

equity jurisdiction of the federal courts.”

Delaware Citizens for Clean Air, Inc. v. Stauffer

Chemical Co., 62 F.R.D. 353, 354 (1974)

The plaintiffs did not win the litigation which they

sought, but rather a major portion of their litigation was —

reversed by the Court of Appeals for the Second Circuit.

“Since there is no statutory provision for attorneys’ fees

under 42 U.S.C. Sec. 1983, attorneys’ fees should be

allowed only when the public policy would require it.”

Knight v. Auciello, 453 F. 2d 582, First Circuit

(1972), cited in Northcross’ v. Board of Education,

412, U.S. 427, 93 S.Ct. 2201, 37 L. Ed 2d 43, 51 n.2

(1973). !

The court should consider the degree to which a public

right is asserted by plaintiff and the extent to which de-

fendant has engaged in deliberate wrongdoing.

Id; Lee v. Southern Home Sites Corp., 444 F.2d 143

5th Circuit (1971).

In this case, defendants have not deliberately em-

barked on a course of discrimination and at least with

respect to racial discrimination have, in fact, prevailed in

their defense against one of the plaintiffs claims. In the

exercise of its discretion, the Court declines to award

attorneys’ fees to plaintiffs.

8

Smith v. City of East Cleveland, 363 F. Supp. 1131

(1973).

The award of attorneys’ fees is discretionary, not man-

“The allowznce of such fees is within the discretion

of the district court and its exercise of this discre-

tion would not be upset on appeal in the absence of

clear abuse.” ' ;

Jinks v. Mays, 464 F2d 1223, 1228 (1972).

There is no real conflict: between Circuits as to prin-

ciple on the issue of attorney fees only as to decisions.

Therefore, if the jurisdiction of the Supreme Court were

to review this case by Writ of Certiorari, the

Court would be giving the defeated party in the Circuit

Court of Appeals another hearing.

CONCLUSION

_ For the foregoing reasons, it is respectfully submitted

that the Petition for a Writ of Certiorari should be

denied.

. Defendants, Members of the

Bridgeport Civil Service Commission

By Richard M. Sheiman

Deputy City Attorney

202 State Street

Bridgeport, Connecticut

By Jack Samowitz

Legal Aid

- 202 State Street

Bridgeport, Connecticut

-