Opposition Brief — Administrator, New York City Department of Human Resources v. Abbott House

No. 92-419

IN THE

Supreme Court of the United States

OcTOBER TERM, 1992

ADMINISTRATOR OF THE NEW YORK CITY

DEPARTMENT OF HUMAN RESOURCES, et al..

Petitioners

VS.

ABBOTT HOUSE, et al..

Respondents

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

PoLiER, TULIN & CLARK

Attorneys for Intervenors-Respondents

STEPHEN WisE TULIN* 350 Fifth Avenue

ALEXANDRA C. CoHN New York, New York 10115

Of Counsel (212) 643-3737

DoNALD J. COHN

Attorney for Intervenors-Respondents

425 Park Avenue

New York, New York 10017

(212) 355-1444

* Counsel of Record

September 29, 1992

T BEST AVAILABLE COPY

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TABLE OF CONTENTS

Page

Question Presented ...........-----.ss2+eeee> i

en en TET T eee eee eee eee eee eee iii

ES. ee Vv

Restatement of the Case..............------+5- ]

Reasons for Denying The Writ... .......-.---- 7

Point I:

This Case Raises Neither New Issues Nor

Significant Issues..........--.----22++++-0e: 7

Point II:

There Is No Conflict Between The Circuits ... . ll

Point III:

The Standard Set By The Court Below Is

Workable ........ As) Ape eee Ae eee meen ae 13

rie Cais 4 6 Wik ho ache aim 14

TABLE OF AUTHORITIES

Cases

Ackerly Communication v. City of Salem, Oregon

752 F.2d 1394, 1397 (9th Cir. 1985) certiorari

denied, sub. nom. County of Multinomah v.

Ackerly Communications, 472 U.S. 1028 (1985)

American Booksellers Assoc., Inc. v. Hudnut, 650

F. Supp. 324 (S.D. Ind. 1986) ..........---..

Blanchard v. Bergeron, 489 U.S. 87 (1989) ......

Donnell v. United States, 682 F.2d 240 (D.C.

Cir., 1982) certiorari denied 459 U.S. 1204

ie Oe ee

Gore v. Turner, 563 F.2d 159 (5th Cir. 1978).

Hensley v. Eckerhart, 461 U.S. 424 (1983). .

Independent Federation of Flight Attendants v.

Zipes, 491 U.S. 754 (1989) .......-----------

Jones v. Wilkinson, 800 F.2d 989 (10th Cir. 1986)

affirmed, 480 U.S. 926 (1987) .......

League of Unified Latin American Citizens v.

Clements, 923 F.2d 365 (5th Cir. 1991)...

Matter of JCCA v. Saunders, 5 N.Y. 2d 222

(RR aa ee Pe eR Th

Matter of Spence-Chapin Adoption Services v.

Polk, 29 N.Y. 2d 196 (1971) ..

Mid-Hudson Legal Services, Inc. v. G & U, Ine.

578 F.2d 34 (2d Cir. 1978)

Page

~

7]

~

10

1]

1]

10

vi

Cases

Milwe v. Cavouto, 653 F.2d 80 (2d Cir. 1981)

Morgan v. McDonough, 511 F. Supp. 408 (D.

Mass. 1981) affirmed 689 F.2d 265 (1st Cir.

i Pe FF

Posada v. Lamb County, Texas, 716 F.2d 1066

(Sth Cir. 1085) 3... ee

Reeves v. Harrell, 791 F.2d 148] (11th Cir. 1986)

Sable Communication of California v. Pacific Tel.

& Tel., 890 F.2d 184 (9th Cir. |)

Sargeant v. Sharp, 579 F.2d 645 (Ist Cir. 1978) ..

Seattle School District No. 1 v. State of

Washington, 633 F.2d 1338 (9th Cir. 1980)

affirmed 458 U.S. 457 (1982)..........0.

Texas State Teachers Assoc. v. Garland

Independent School District, 489 U.S. 782

(OOD 666 000s eaxcace art ss oe

United States v. Board of Education of

Waterbury, 605 F.2d 573 (2d Cir. |):

Wilder v. Bernstein, 645 F. Supp. 1292 (S.D.N.Y.

1986) affirmed 848 F.2d 1338 (2d Cir. 1988) ..

Wilder v. Bernstein, 725 F. Supp. 1324 (S.D.N.Y.

1989), reversed, 944 F.2d at 1028 (2d Cir.

1991), rehearing granted. prior opinion

vacated, affirmed, Slip Opinion pp.9215-9236

(2d Cir. June 3, 1992)...............0

Page

~

Vil

Page

Statutes:

Civil Rights Attorney’s Fee Awards Act of 1976,

42 U.S.C. § 1988 (1988) g

New York Social Law § 383 4

New York Social Law § 384 §

New York Social Law § 384-a §

New York Social Law § 384-b §

Other Authorities:

S. Rep. 94-1011, 94th Cong., 2d Session reprinted

in 1976 U.S. Code Cong. & Admin. News 8

Federal Rules Civil Procedure R. 24 2G

Constitution of the United States, First

Amendment 6

Constitution of the United States, Fourteenth

Amendment 4.6

No. 92-419

IN THE

Supreme Court of the United States

OcToOBER TERM, 1992

ADMINISTRATOR OF THE NEW YORK CITY

DEPARTMENT OF HUMAN RESOURCES, et al.,

Petitioners,

VS.

ABBOTT HOUSE, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

Respondents, (hereafter “Intervenors”), 19 not-for-profit child

care agencies who prevailed in vindicating the constitutional

rights of 4,600 children in their care, respectfully urge the Court

to deny the petition for a writ of certiorari for the reasons stated

below.

RESTATEMENT OF THE CASE

The Petition misstates the case by both commission and omis-

sion. Hence we restate it here.

tr

Petitioner (hereafter the “City”) seeks a writ of certiorari to

review an order of the Court of Appeals holding respondents

entitled to counsel fees but remanding the case to the District

Court to recompute the fees to be allowed.

In 1973, plaintiffs’ sued not only the City and religiously af-

filiated child care agencies, but also virtually every child care

agency in the City of New York, including many of the

Intervenors.

Since none of those [ntervenors discriminated (JA 183-184)

they were dismissed as defendants in 1974. However, the

judgments of dismissal reserved to some of them full party status

on any relief that might be granted (A-8) — a fact omitted from

the Petition. They were hardly “volunteers.” See Petition, p. 13.

Ten years later, when those Intervenors obtained a copy of

the settlement negotiated exclusively by the City and plaintiffs,

they found it seriously deficient. At the suggestion of the District

Court, they conferred with the City and plaintiffs to seek

modifications of the proposed settlement to protect the rights

of the children in their care. However, the City and plaintiffs

flatly refused to change the settlement in any respect (A-5,

JA 302, W 1851-1853).

Thus, those Intervenors, joined by others who had reserved

no rights or did not exist in 1973, had no choice but to intervene

under Rule 24 and file objections, since their deep concerns for

the rights of the children in their care would otherwise be ig-

nored by the existing parties (JA 152-153).

These Intervenors stand in loco parentis to the 4,600 children

in their care (A-18), constituting 25% of the children then in

the City’s foster care system (A-8). Intervenors shelter, evaluate,

plan for, supervise, educate, treat medically, psychiatrically and

' References to “A” are to Petitioners appendix; “JA” to the appendix in the

Court of Appeals on this appeal and “W” to the appendix on the prior appeal

which confirmed the final Stipulation of Settlement.

mentally, and nourish the children entrusted to their care, whose

parents cannot do so (W 1643-1849). These children included

large numbers within and large numbers outside the plaintiff

class (W 1647, 1715-16, 1728, 1735-6, 1740-1, 1749, 1755-6,

1766-7, 1781, 1797-8, 1828).

It was Intervenors who proceeded to make a record and ad-

vance arguments that the rights of the children in their custody

and care required that the proposed stipulation be rejected.

(JA 303-4) To that end, Intervenors filed 21 affidavits totalling

250 pages (W 1645-1900), 13 pages of formal a and 62

pages of briefs and exhibits (JA 18-94).

Ultimately the District Court so found, holding that the pro-

posed stipulation was “unacceptable on several levels” in light

of Intervenors’ objections, Wilder v. Bernstein, 645 F. Supp. 1292

at 1347 (S.D.N.Y. 1986), affd 848 F.2d 1338 (2d Cir. 1988), a

finding omitted from the Petition here.

Only when faced with the record compiled by Intervenors

did the City and plaintiffs recognize that Intervenors had raised

substantial issues of the unconstitutionality of the proposed

stipulation and its serious adverse effect on children’s rights.

Lengthy negotiations then followed. As the District Court

found in approving the final settlement:

“It was around [Intervenors’] concrete proposals that

all the parties subsequently negotiated, in open court,

during lengthy sessions held through the fall of 1984”

(645 F. Supp. at 1348).

The District Court found that Intervenor’s succeeded in ob-

taining numerous substantial changes in the proposed stipvula-

tion (645 F. Supp. at 1348-1349; 725 F. Supp. at 1329, n.4, A-52).

Indeed, Intervenor’s assent to the final Stipulation as modified

to meet virtually all of their objections was a weighty factor

in the District Court’s decision to approve it (645 F. Supp. at

1350) — another critical fact omitted from the Petition.

The City aitempts to distinguish between the constitutional

points raised by Intervenors and their “clinical concerns.”

However, Intervenors, and only Intervenors, successfully argued

that the so called “clinical concerns” raised by Intervenors

demonstrated that the settlement agreement proposed by the

City and plaintiffs was adverse to the best interests of children

in care and thus violated their rights under the 14th Amendment.

As the Intervenors contended before the District Court in

August 1984:

“The City and ACLU say the core issues in this case

are equal access to care and religious issues. We

disagree with that.

“We think that in any case dealing with children

and care the best interests of the child, each individual

child, is the lodestar by which the Court and all the

parties must be guided. .. When parents are unwilling

or unable to take care of their children, the state, and

by that I mean the state generically, here the City —

can only step in and act as the parens patriae in the

best interests of the child. That is the beginning, the

end, and the middle. JA 179

* * *

“He is coming into care because the state must take

care of him. The state can only act in the child’s best

_interests. Your Honor put his finger on our constitu-

tional argument, that the equal protection rights of

the child were being violated. . Nobody addressed

that issue except us.

“It is the child’s 14th Amendment rights that are being

violated.” JA 185. (Emphasis added).

In the end, the District Court made the following findings

which were uncontested in the Court below and unchallenged

here:

cst

(1) “{T]Jhe Court found the contributions made by

the Intervenors were essential to the creation of the

final Stipulation” 725 F. Supp. at 1329, A-5l.

(2) Intervenors prevailed “in forestalling entry of

the proposed stipulation negotiated by plaintiffs and

the City” 725 F. Supp. at 1329, A-52.

(3) Intervenors “prevailed, through negotiations,

in their proposals to modify the settlement to

ameliorate the constitutional, clinical, and practical

stumbling blocks they had identified in the original

stipulation.” 725 F. Supp. at i329 (footnote omitted),

A-52. “They succeeded in obtaining modifications in

the initial settlement proposal on virtually every ob-

jection they raised.” 725 F. Supp. at 1332, A-58.

(4) Intervenors “furthered the purposes of the civil

rights statutes by facilitating the formation of a set-

tlement which would safeguard the constitutional

rights of the children in the City’s care, while assur-

ing that the child care system itself would remain

focused on the overall best interests of the children

entitled to the protection of the civil rights laws.” 725

F. Supp. at 1331, A-57-8.

(5) Intervenors “consistently and forcefully ar-

ticulated objections addressed to the constitutional

and civil rights issues in this litigation.” 725 F. Supp.

at 1332, A-58

(6) Intervenors “helped to vindicate the civil rights

of the children and families in the foster care system

which they served, not just their own self interests.” Id.

(7) Intervenors achieved “a ‘material alteration

of the legal relationship of the parties in a manner

which Congress sought to promote’.” Jd. (citations

omitted).

(8) “The contributions made by the intervenors

were essential to the creation of a just and workable

remedy, exactly the type of activity sought to be pro-

moted by the civil rights statutes.” 725 F. Supp. at

1331-2, A-58.

Finally, the City states that Intervenors had no legal interest

at stake in the litigation, because “they had no axes to grind,”

were interested only in “the best interests of children in foster

care” and they were “non-parties vis-a-vis the underlying con-

stitutional claims in the lawsuit.” Petition at p.4.

Intervenors. of course, had no axe to grind as to the underly-

ing claims of racial and religious discrimination. With respect

to relief. however, Intervenors had enormous axes to grind. See

findings 1-8, supra. Intervenors also argued that the proposed

settlement agreement violated the First Amendment rights of

the children and their parents, (JA 23, 70-76, 133-36, 302-3,

308-9) as well as the Fourteenth Amendment rights of the

children.’

Intervenors’ stake in the litigation was to protect the constitu-

tional rights of the 4600 children in their care, and for whom

they stand in loco parentis, when threatened by the settlement

originally put forward by plaintiffs and the City.

? Footnotes 2 and 7 to the Petition disingenuously suggest that the City’s

payments to plaintiffs by agreement somehow impact Intervenor’s right to

fees for their critical contributions. Omitted are the facts that the District

Court expressly found that the City did not pay plaintiffs for litigating against

intervenors (725 F. Supp. at 1332, note 8, misprinted at A-58) and that

Intervenors stipulated in open Court to seek no fees for enforcement activities

short of actual litigation. In any event, this case has been remanded to

the District Court to insure that there will be no duplication of fees. See p. 13

infra.

“I

REASONS FOR DENYING THE WRIT

POINT |

THIS CASE RAISES NEITHER NEW ISSUES NOR

SIGNIFICANT ISSUES

Here, the unchallenged findings of the District Court (p. 4-6,

supra) demonstrate beyond cavil that Intervenors contribution

was not only significant but pivotal to the outcome and altered

the legal relationship of the parties in numerous and critical

respects.

The decision below simply holcs that an Intervenor who so

vindicates the constitutional rights of those for whom it stands

in loco parentis is entitled to fees for so much of that work as

is non-duplicative of plaintiff.

Nothing in that holding is either new or a departure from

prior law:

A. Once intervenors demonstrate a significant contribution

by non-duplicative work, Donnell v. United States, 682 F.2d 240,

249 (D.C. Cir., 1982) cert. denied, 459 U.S. 1204 (1983), that

resulted in a “material alteration of the legal relationship of the

parties” Texas State Teachers Assoc. v. Garland Independent

School District, 489 U.S. 782, 792-793 (1989), their right to

counsel fees is assured. There is not a single case, and certainly

none is cited by the City, where an intervenor whose independent

activity prevailed in vindicating the rights of its clients or con-

stituents was denied counsel fees.*

‘ Independent Federation of Flight Attendants v. Zipes, 491 U.S. 754 (1989),

relied upon by the City is utterly inapposite. It merely holds that an unsuc-

cessful but blameless intervenor-defendant who violated no rights of plain-

tiff may not be compelled to pay legal fees to plaintiff when the intervention

was not frivolous. Having violated no rights of plaintiffs, there was no liabili-

ty for fees. Here, of course, Intervenors prevented the City from violating the

rights of the children in Intervenors’ care. (In Rhodes v. Stewart, 488 U.S.

1 (1988), the case was moot before judgment on the merits; in Hewitt v. Helms,

482 US. 755 (1987), the fee seeker lost on the merits; and Kay v. Ehrler,

us. _ J11 S.Ct. 1435 (1991) merely held that a pro se litigant was in-

eligible for fees.)

B. The legislative history makes clear that Intervenors who

vindicate constitutional rights may be awarded counsel fees (5.

Rep. No. 1011, 94th Cong., 2d Sess. 4, reprinted in 1976 US Code

Cong. & Admin. News 5908, 5912, n.4).

C. The Courts of Appeals have uniformly so held; United

States v. Board of Education of Waterbury, 605 F.2d 573 (2d

Cir 1979); Morgan v. McDonough, 511 F. Supp. 408 (D. Mass.

1981) aff'd 689 F.2d 265 (Ist Cir. 1982): Seattle School District

No. 1 v. State of Washington, 633 F.2d 1338 (9th Cir. 1980), affd

458 U.S. 457 (1982).

In each of these cases the Intervenors to whom fees were

awarded. like Intervenors here, asserted no organizational rights

of their own, but rather the rights of their constituents.

The Waterbury Intervenors included many persons who had

no children affected by the outcome.

The Morgan Intervenors were a committee to protect the

rights of their clients, a group of public school students.

The Seattle Intervenors were even further removed from the

children whose rights they advocated, being a group of disparate

organizations some of whose members or constituents had

children in the plaintiff school systems. Petitioner's attempt to

distinguish Seattle in footnote 5 is, at best, a distinction without

a difference.

Indeed. the nexus between Intervenors and their children is

far closer here. Patently, had the absent parents done as

Intervenors did, they would have been entitled to fees.

Intervenors here stand in the shoes of the children’s parents. A-I5.

Under New York law, Intervenors are the custodians of children

in their care, New York Social Services Law §§ 383, 384, 384-a,

384-b. The New York Courts have repeatedly so held, Matter

of Spence-Chapin Adoption Services v. Polk, 29 N.Y. 2d 196,

9()2-3 (1971); Matter of JCCA v. Saunders, 5 N.Y. 2d 222, 229

(1959).

se]

The City and plaintiffs, the two parties who should have pro-

tected the rights of the children in Intervenors’ care, had agreed

on_a settlement that violated their rights under the First and

Fourteenth Amendments. Only Intervenors acted to protect

those rights.

Intervenors right to fees for doing so stands on at least as firm,

if not a better, footing then that of the Intervenors in the above

cited cases. In the posture of this case it is indistinguishable from

the status of the organization in Mid-Hudson Legal Services,

Inc. v. G & U, Inc., 578 F.2d 34, 37 (2d Cir 1978). That agency

vindicated the rights of the farm-worker clients it was mandated

to protect. Here, Intervenors protected the rights of the children

they are mandated to protect.

In sum, the decided cases uniformly hold that, where, as here,

a party prevails in vindicating the constitutional rights of its

clients or constituents, it is entitled to legal fees under 42U.S.C.

1988.

The City contends Intervenors should not be awarded fees

because they did not claim the City violated their rights. Peti-

tion at 9. What Intervenors claimed was that the City violated

the rights of the children for whom they care as substitute parents

by agreeing to and offering for court approval the initial flawed

settlement. Intervenors prevailed on that claim and the settle-

ment was modified to meet their objections. They are entitled

to fees.

Since this case in no way expands the coverage of 42 U.S.C.

§ 1988, it will not let loose the dogs of litigation as the City

prophesies. Petition at p. 10. As the Second Circuit so cogently

pointed out, A15-6, Rule 24 of the Federal Rules of Civil Proce-

dure will prevent the parade of horribles the City has dreamed up.

This case is particularly unlikely to stimulate litigation due

to the fact that many intervenors had established rights pur-

suant to judgment to act as parties with respect to remedy. If

Waterbury, Seattle and Morgan have not stimulated intervenor

litigation over more than a decade, it is untenable to argue that

this case will.

10

The City also argues that Intervenors did not need the

incentive of fees to litigate in this case and quotes from the

first opinion of the Court of Appeals, Petition at p. 12. That

opinion was vacated and the unanimous affirmance of fees to

Intervenors points out how essential fee recovery is to organiza-

tions whose constituencies are, as here, economically disad-

vantaged. A 18-19. As Intervenors pointed out in their Petition

for Rehearing:

“There is simply no way Intervenors could or would

have paid legal fees for the years of litigation it took

to correct the seriously flawed stipulation originally

proposed by the City and plaintiff's counsel. Every

dollar spent on legal fees would have been diverted

from providing services to children in dire need, the

only purpose of these agencies. None of these agen-

cies could or would have spent substantial sums on

this litigation instead of on child care. Indeed, one

of their oft repeated objections to the original stipula-

tion was its diversion of scarce financial resources from

direct child care. JA 24, { 12; JA 27, ¢ 22; JA 31, € 40;

JA 116, § 2; W 1717, 1778."

Moreover, the Courts of Appeals have long and unanimously

held that:

“Whether or not an action would have been brought

in the absence of section 1988 is irrelevant.”

Ackerly Communication v. City of Salem, Oregon, 752 F.2d

1394, 1397 (9th Cir. 1985) cert. denied, sub. nom. County of

Multinomah v. Ackerly Communications, 472 U.S. 1028 (1985);

Sargeant v. Sharp, 579 F.2d 645, 648 (Ist Cir. 1978): Milwe v.

Cavouto, 653 F.2d 80, 83 (2d Cir. 1981); Gore v. Turner, 563

F.2d 159, 164 (5th Cir. 1978); Sable Communication of Califor-

nia v. Pacific Tel. & Tel., 890 F.2d 184, 193 (9th Cir. 1989); Jones

* Citations contained in the quotation have been conformed to n. 1, supra.

11

\. Wilkinson, 800 F.2d 989, 991 (10th Cir. 1986), aff'd, 480 U.S.

926 (1987).

More recently, this Court has unanimously reached the same

result. Blanchard v. Bergeron, 489 U.S. 87, 109 S.Ct. at 944

(1989).

POINT I

THERE IS NO CONFLICT AMONG CIRCUITS

As demonstrated in Point I, sujra, in every case where the

issue has been considered, intervenors who prevailed in vin-

dicating the civil rights of clients or constituents have been

awarded fees.

The City’s attempt to manufacture a conflict among the cir-

cuits will not stand even casual scrutiny. Donnell v. United States,

682 F.2d 240 (D.C. Cir. 1982), cert. denied, 459 U.S. 1204 (1983)

far from supporting the City, simply makes clear that in-

tervenors, like plaintiffs, who make a substantial contribution

are entitled to fees, but when the contribution is minimal no

fee should be awarded. American Booksellers Assoc, Inc. v. Hud-

nut, 650 F. Supp. 324 (S.D. Ind. 1986) holds only that an in-

tervenor who did virtually nothing is entitled to no fee.

Posada v. Lamb County, Texas, 716 F.2d 1066 (5th Cir. 1983)

merely applies the Donnell reasoning to plaintiffs who made

no substantial contribution: so much for the supposed greater

scrutiny.

The “greater scrutiny” the City trumpets is simply the ob-

vious point that intervenors must satisfy the Court that they did

more than ride plaintiffs’ coattails. Far from being in conflict

with the decision below, Donnell emphasizes that intervenors

who. like those here, make a divergent or independent contribu-

tion are entitled to fees, citing Seattle, 682 F.2d at 246 and n.12.

The Court below expressly followed the Donnell formulation.

(A-20)

12

Least tenable of all is the City’s suggestion that the Court

below ignored the question of whether Intervenors were plain-

tiffs or defendants and thus fell into conflict with other Circuits.

(Petition p. 15). 7

In fact the Court below committed no such oversight. It ad-

dressed that very question:

“{T]here is no reason why the present intervenors,

whether they be styled intervenor-plaintiffs or

intervenor-defendants, may not be prevailing parties

for purposes of § 1988 (A-14).

Moreover, Intervenors made clear from the outset that they

were neither plaintiffs nor defendants, insisting that they were

“Non-Defendant Agencies” (JA 19, 33, 98, 179), who intervened

solely with respect to relief. Not having discriminated, they clear-

ly were not defendants. Similarly, they could not stvle themselves

as plaintiffs since they were not involved in the issue of whether

discrimination existed. Thus, perforce, they were Intervenors

without sub-title. That circumstance does not affect their rights.

Finally, the City’s assertion that the Fifth and Eleventh Circuits

deemed the plaintiff or defendant label determinative (Petition

p. 15) borders on the captious: League of Unified Latin American

Citizens v. Clements, 923 F.2d 365 (5th Cir. 1991) turned not on

any distinction between intervenor-plaintiffs and intervenor-

defendants, but simply holds that a prevailing intervenor-

defendant cannot recover against her equally prevailing named

co-defendant. Similarly, Reeves v. Harrell, 791 F.2d 1481 (11th

Cir, 1986) merely holds that an intervenor-plaintiff whose claim

is frivolous is liable for fees to plaintiff — in the same way as

an intervenor-defendant whose claim is frivolous, see Independent

Federation of Flight Attendants v. Zipes, 491 U.S. at 760 (1989).

If the claim is frivolous, liability follows regardless of label.

The labels of “plaintiff” or “defendant” control little when

applied to intervenors. On this the circuits are unanimous. Don-

nell held that if intervenor-defendants contributed substantially

they were entitled to fees. Waterbury, Seattle and Morgan held

the same as to intervenor-plaintiffs.

13

POINT Il

THE STANDARD SET BY THE COURT BELOW IS

WORKABLE

In directing the District Court to determine the extent, if any,

to which Intervenors work included efforts duplicative of plain-

tiffs, or was “attributable solely to advancing concerns other than

civil rights violations” (A-22), the Court of Appeals created no

unworkable standard. The separation of work addressed solely

to non-civil rights concerns is akin to excluding “hours that were

not ‘reasonably expended,’ ” Hensley v. Eckerhart, 461 U.S. 424,

434-5 (1983), or determining the hours to be excluded to account

for limited success, Hensley v. Eckerhart, supra at 436-7; Texas

State Teachers v. Gurland Independent School District, 489 US.

at 791 (1989).

Contrary to the City’s claim (Petition, p.17), the Court of Ap-

peals did not direct the District Court to make any decision based

on Intervenors’ motives. Quite the opposite, it held that where

mixed motives exist, a prevailing intervenor may be compen-

sated for efforts which advanced civil rights concerns (A-21).

In fact. the decision below, far from conflicting with Texas

State, follows its directions in the analogous situation of a par-

tially successful claimant. The District Court was instructed:

1) efforts in pursuit of civil rights remedies may be recovered;

2) efforts which furthered civil rights objections together with

other concerns may be recovered; and in conclusion; 3) efforts

duplicative of plaintiffs’ or solely to advance non-civil rights con-

cerns are not recoverable (A-21, 22).

There is nothing unusually complex, arcane or unworkable

in that disposition. The District Court was left free to “exercise

[its] equitable discretion . . . to arrive at a reasonable fee award,

either by attempting to identify specific hours that should be

eliminated or by simply reducing the award to account for” non-

compensable efforts, Texas State Teachers v. Garland Inde-

pendent School District, supra 109 S.Ct. at 1492. A decision

which, on this point, so closely follows the direction of this Court

is no grounds for granting certiorari.

14

CONCLUSION

The Petition for a writ of certiorari should be denied.

Dated: September 29, 1992

Respectfully submitted,

POLIER, TULIN & CLARK

STEPHEN WIsE TULIN* 350 Fifth Avenue, Suite 1229

ALEXANDRA C. COHN New York, New York

Of Counsel. (212) 643-3737

DONALD J. COHN

425 Park Avenue

New York, New York 10022

(212) 355-1444

Attorneys for Intervenors-

Respondents

*Counsel of Record