                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-3-1994

Comwlth. et al. v. Flaherty, et al.
Precedential or Non-Precedential:

Docket 94-3211




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"Comwlth. et al. v. Flaherty, et al." (1994). 1994 Decisions. Paper 177.
http://digitalcommons.law.villanova.edu/thirdcircuit_1994/177


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                               UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT
                     _______________

                       No. 94-3211
                     _______________

              COMMONWEALTH OF PENNSYLVANIA and
           GUARDIANS OF GREATER PITTSBURGH, INC.,
         individually and on behalf of its members
      and on behalf of all others similarly situated;
          NATIONAL ASSOCIATION FOR THE ADVANCEMENT
           OF COLORED PEOPLE - PITTSBURGH BRANCH,
         individually and on behalf of its members
      and on behalf of all others similarly situated;
             NATIONAL ORGANIZATION FOR WOMEN -
      SOUTHWESTERN PENNSYLVANIA COUNCIL OF CHAPTERS,
       individually and on behalf of its members and
      on behalf of all others similarly situated and
         DONALD ALLEN; BENJAMIN ASHE; JEROME AZIZ;
        RICHARD HURT; ADAM KINSEL; LYNWOOD SCOTT and
        RICHARD STEWART, individually and on behalf
             of all others similarly situated;
        J. TERESE DOYLE, individually and on behalf
             of all others similarly situated;
       CHERYL EDMONDS; ROSE MITCHUM; LINDA ROBINSON;
        JOANNE ROWE; DEBORAH SMITH and GLORIA VANDA,
             individually and on behalf of all
                 others similarly situated;
   HARVEY ADAMS; MACK HENDERSON; THEODORE SAULSBURY and
        CHARLES TARRANT, individually and on behalf
             of all others similarly situated;
          GLADYS SMITH, Individually and on behalf
              of all others similarly situated

                            v.

    PETER F. FLAHERTY, Mayor of the City of Pittsburgh
          and Acting Director of the Department of
          Public Safety of the City of Pittsburgh;
       ROBERT J. COLL, Superintendent of the City of
                Pittsburgh Bureau of Police;
            STEPHEN A. GLICKMAN, President of the
        City of Pittsburgh Civil Service Commission;
            ALBERT STATTI and EDWARD L. ENGLISH,
Members of the City of Pittsburgh Civil Service Commission;
      MELANIE J. SMITH, Secretary and Chief Examiner
  of the City of Pittsburgh Civil Service Commission; and
          CITY OF PITTSBURGH, all individually and
                in their official capacities
                         v.

         COMMONWEALTH OF PENNSYLVANIA

             FRATERNAL ORDER OF POLICE

                (Intervenor in D.C.)

                       (D.C. Civil No. 75-162)

                 MICHAEL C. SLATER

                         v.

  CITY OF PITTSBURGH, a municipal corporation

                       (D.C. Civil No. 90-457)

       CHARLES H. BOEHM; PAUL G. CLARK and
     RICHARD USNER, on behalf of themselves
        and all others similarly situated

                         v.

SOPHIE MASLOFF, MAYOR OF THE CITY OF PITTSBURGH;
 MELANIE J. SMITH, DIRECTOR OF PERSONNEL OF THE
CITY OF PITTSBURGH; THE PITTSBURGH CIVIL SERVICE
      COMMISSION and THE CITY OF PITTSBURGH

                       (D.C. Civil No. 90-629)

    Commonwealth of Pennsylvania, Appellant


                  _______________

On Appeal from the United States District Court
   for the Western District of Pennsylvania
         (D.C. Civil Nos. 75-cv-00162;
         90-cv-00457; and 90-cv-00629)
                _______________

             Argued September 20, 1994

   Before:     BECKER and COWEN, Circuit Judges
             and POLLAK*, District Judge

             (Filed November 15   , 1994)
                           _______________



*Honorable Louis H. Pollak, United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.


Thomas F. Halloran, Jr. (argued)
Office of the Attorney General
   of Pennsylvania
564 Forbes Avenue
Manor Complex, 4th Floor
Pittsburgh, PA 15219

          COUNSEL FOR APPELLANT
          COMMONWEALTH OF PENNSYLVANIA

Samuel J. Cordes (argued)
Ogg, Jones, DeSimone & Ignelzi
245 Fort Pitt Boulevard
Pittsburgh, PA 15222

          COUNSEL FOR APPELLEES
          PAUL G. CLARK AND
          RICHARD USNER, on behalf of
          themselves and all others similarly
          situated

Lorina W. Wise
City of Pittsburgh
Department of Law
3l3 City County Building
Pittsburgh, PA 15219

          COUNSEL FOR APPELLEES
          CITY OF PITTSBURGH, all individually
          and in their official capacities

Ronald D. Barber (argued)
Strassburger, McKenna, Gutnick & Potter
322 Boulevard of the Allies, Suite 700
Pittsburgh, PA 15222

          COUNSEL FOR APPELLEES
          DANIEL A. DULSKI AND
          MICHAEL A. BENNER

                           _______________
                        OPINION OF THE COURT
                           _______________


COWEN, Circuit Judge.


     The Commonwealth of Pennsylvania, the original plaintiff in

this matter, appeals from the order of the district court

awarding attorney's fees against it pursuant to 42 U.S.C. § 1988

or, alternatively, pursuant to Federal Rule of Civil Procedure

41(b).   Because the lawsuit filed by the Commonwealth was not

frivolous, unreasonable, or without foundation and because the

Commonwealth did not fail to prosecute its case, we will reverse

the award of attorney's fees against the Commonwealth.



               I. Factual and Procedural Background
     In 1975, the Commonwealth of Pennsylvania ("Commonwealth")

filed suit under 42 U.S.C. §§ 1981 and 1983 against the City of

Pittsburgh ("City") alleging, inter alia, discrimination in the

hiring of minority applicants by the Police Department of the

City of Pittsburgh.   Following a hearing the district court made

findings that the City had virtually eliminated the hiring of

minority applicants as police officers.   The district court

entered a preliminary injunction requiring the City to hire one

white female, one African-American male, and one African-American

female for every white male that it hired.     The City did not

appeal from the preliminary injunction order.

     In 1977, the Fraternal Order of Police, an intervening

defendant, moved to dissolve the injunction.     The application was
denied by the district court because the Fraternal Order of

Police lacked standing.    In 1984, a white male applicant who had

continually applied for a position as a Pittsburgh police officer

since 1975 moved to intervene in this action in order to

challenge the preliminary injunction.    The district court denied

the application, and we affirmed the order of the district court.

Finally, in 1990, Paul Clark, Richard Usner, Michael Benner, and

Daniel Dulski ("intervening defendants"), white male applicants,

filed two separate complaints against the City of Pittsburgh and

its officials challenging the hiring system imposed by the

preliminary injunction.    The district court consolidated the

cases thereby making these parties intervening defendants to the

original suit between the Commonwealth and the City.

     In March of 1991 the district court granted the intervening

defendants' motion to dissolve the injunction and denied the

intervening defendants' motion to dismiss for failure to

prosecute.    The Commonwealth appealed the dissolution of the

injunction to this Court.    We dismissed the appeal as moot when

the district court granted partial summary judgment in favor of

the intervening defendants on the claim of discrimination in the

hiring of police officers.

     The district court also granted intervening defendants'

petitions for attorney's fees incurred in obtaining the

dissolution of the injunction, assessing 75% of the fees against

the plaintiff Commonwealth and 25% against the defendant City of

Pittsburgh.    In making this award of attorney's fees, the

district court realigned the parties.    The intervening defendants
were treated as plaintiffs and the plaintiff Commonwealth and

defendant City were deemed defendants for the purpose of awarding

fees under 42 U.S.C. § 1988.   Commonwealth v. Flaherty, Nos. 75-

162, 90-457, 90-629, slip op. at 15 (W.D. Pa. Sept. 9, 1991).

     The order granting the intervening defendants' motion for

summary judgment and denying their motion to dismiss the original

complaint for failure of the Commonwealth to prosecute was

affirmed on appeal.   The appeal of the attorney's fees award was

dismissed because the fee award had not been quantified and

therefore was not a final order.    Commonwealth v. Flaherty, 983

F.2d 1267, 1277 (3d Cir. 1993).    Subsequently, the district court

quantified the attorney's fees requested by the intervening

defendants at $ 80,000.00, and the Commonwealth was required to

pay 75%, or $ 60,000.00.   The City was ordered to pay 25%, or

$20,000.00.   Flaherty, slip op. at 3-4 (March 17, 1994).

Although the City has entered an appearance in this appeal, it

has not filed a brief nor sought oral argument.    This appeal by

the Commonwealth followed.



                           II. Discussion


      A.   Award of Attorney's Fees Under 42 U.S.C. § 1988

     The district court awarded $ 60,000.00 in attorney's fees in

favor of the intervening defendants and against the Commonwealth.

This Court has previously stated that, "[w]e must defer to the

district court's fee determination unless it has erred legally,

or the facts on which the determination rests are clearly
erroneous."   Quiroga v. Hasbro, Inc., 934 F.2d 497, 502 (3d

Cir.)(citations omitted), cert. denied, __ U.S. __, 112 S. Ct.

376 (1991).   We conclude that the district court erred as a

matter of law in realigning the parties, thus failing to apply

the rule that fees cannot be awarded against a plaintiff absent a

finding that the suit was frivolous, unreasonable, or without

foundation.

     The general rule in the United States is that absent

legislation to the contrary, litigants must bear their own

attorney's fees.   See Alyeska Pipeline Service Co. v. Wilderness

Society, 421 U.S. 240, 247, 95 S. Ct. 1612, 1616 (1975).    The

statutory authority for awarding attorney's fees in § 1983 cases

is set forth in 42 U.S.C. § 1988(b).    That section provides,

"[i]n any action or proceeding to enforce a provision of sections

1981 . . . [or] 1983 . . .   of this title . . . the court, in its

discretion, may allow the prevailing party . . . a reasonable

attorney's fee as part of the costs."   42 U.S.C. § 1988(b) (1988

& Supp. V 1993).   The standard to be used in determining whether

a request for attorney's fees by a prevailing defendant should be

approved is set forth in Christiansburg Garment Co. v. EEOC, 434
U.S. 412, 98 S. Ct. 694 (1978).   In that case, the Supreme Court

held that "a district court may in its discretion award

attorney's fees to a prevailing defendant in a Title VII case

upon a finding that the plaintiff's action was frivolous,

unreasonable, or without foundation, even though not brought in

subjective bad faith."   Id. at 421, 98 S. Ct. at 700.   Although

Christiansburg Garment dealt with Title VII fee awards, the
Supreme Court has subsequently indicated that "[t]he legislative

history of § 1988 indicates that Congress intended that `the

standards for awarding fees be generally the same as under the

fee provisions [contained in Title VII] of the 1964 Civil Rights

Act.'"    Hensley v. Eckerhart, 461 U.S. 424, 433 n.7, 103 S. Ct.

1933, 1939 n.7 (1983).    Thus, the analysis adopted by

Christiansburg Garment in determining whether to award attorney's

fees to a prevailing party is equally applicable to the matter

before us.

     In Christiansburg Garment, the prevailing party was a

defendant, whereas in the case at bar the prevailing parties are

intervening defendants.     The question whether an intervening

defendant may also be considered a prevailing party entitled to

an award of attorney's fees is not free from doubt.    We are

prepared to assume, arguendo, that the answer is in the

affirmative.   See Donnell v. United States, 682 F.2d 240, 245-249

(D.C. Cir. 1982), cert. denied, 459 U.S. 1204, 103 S. Ct. 1190

(1983).   However, for the reasons given in Donnell, we would

think that such an award would be justified only where the

intervening defendant had clearly made a substantial contribution

to the successful result.    And, in any event, the district

court's discretionary award of attorney's fees would be justified

only in those situations where, under the Christiansburg Garment
standard, the plaintiff's "claim was frivolous, unreasonable, or

groundless, or [when] the plaintiff continued to litigate after

it clearly became so."    434 U.S. at 422, 98 S. Ct. at 701.
      Plaintiff argues that the award of attorney's fees by the

district court in favor of the intervenors and against the

plaintiff is erroneous as a matter of law because it is contrary

to controlling Supreme Court precedent.    In the case at bar, the

district court did not arrive at its decision to award attorney's

fees by applying the standard as set forth in Christiansburg

Garment above. Rather, the district court stated:
     To award attorney fees to a prevailing intervenor
     against a civil rights plaintiff . . . would appear to
     penalize a plaintiff without a finding that his or her
     claim was frivolous, unreasonable or groundless. We
     found, however, that doing so in this case would
     further the underlying purpose behind awarding attorney
     fees in civil rights actions . . . .


Flaherty, slip op. at 4 (August 23, 1993) (citing Flaherty, slip
op. at 13, 17 (Sept. 9, 1991)).   The district court acknowledged

that it never made findings that the plaintiff's claim was

frivolous, unreasonable or groundless.    Instead, the district

court reasoned that it would be proper to realign the parties and

treat the Commonwealth as a defendant for fee award purposes

because it would further the congressional goal of attacking

discrimination by encouraging civil rights lawsuits.     Flaherty,

slip op. at 17 (Sept. 9, 1991).

     The district court decided to treat both the City as well as

the Commonwealth as civil rights defendants because both entities

assumed identical postures when they allowed the injunction to

exist indefinitely and left in place discriminatory hiring

practices pursuant to what intervening defendants characterized

as an unconstitutional quota system.     Flaherty, slip op. at 15
(Sept. 9, 1991).   Additionally, the district court concluded that

the plaintiff Commonwealth assumed characteristics of a defendant

by opposing the intervention of other parties.   Id.   We see no

reason for the Commonwealth to be realigned as a defendant.     The

status of the Commonwealth as a plaintiff seeking a civil rights

remedy was not diminished or changed simply by reason of its not

seeking to obtain a permanent injunction after a preliminary

injunction had been granted, nor by its objecting to the

intervention of other parties.

     While it is true that awarding attorney's fees to prevailing

intervening defendants will undoubtedly encourage some civil

rights lawsuits, we believe that the analysis undertaken by the

district court fails to adequately account for the detriment

caused by awarding attorney's fees against plaintiffs whose

claims are not frivolous, unreasonable, or groundless.    To accept

the reasoning of the district court would require us to expand

the rule of Christiansburg Garment to allow the award of

attorney's fees to defendants in cases even where a plaintiff's

claim is meritorious.   Intervening defendants advocate a rule

that would award attorney's fees against a plaintiff who, in the

context of a preliminary or permanent injunction, succeeds on the

merits, but then fails to notify the court when the injunction

may no longer be valid as a result of a change in the law.     We

cannot accept such an award structure.

     Intervening defendants' sole argument is that absent an

award of attorney's fees, civil rights suits will be chilled

because similarly situated potential intervenors will not
initiate court proceedings.   We do not believe there is force in

such an argument.   Potential intervenors will continue to

initiate court proceedings because the intervenor will always be

in a position to seek attorney's fees from the defendant who is

unsuccessful.   Additionally, under the intervening defendants'

scheme, any gains which may be achieved by awarding fees to

intervening defendants might be eroded by the chilling effect

that such a rule of law would have on potential plaintiffs.    The

uncertainty created by such a rule might discourage some

plaintiffs from filing suit for fear that even if they initially

prevail in the lawsuit, they may ultimately be liable for

attorney's fees.    The most efficient way to balance the competing

concerns of encouraging potential intervenors to intervene and

simultaneously not discouraging plaintiffs from filing suit in

the first instance is to continue to take advantage of the fee

award structure that already exists, namely to award fees to the

prevailing party and against the losing defendant.

     In this case, the City of Pittsburgh failed to challenge a

legally questionable preliminary injunction, and allowed it to

remain in effect for over fifteen years.   If the district court

in the first instance had ordered the City of Pittsburgh to pay

100% of the attorney's fees, then the dual purposes of

encouraging civil rights litigation by intervenors yet not

chilling a plaintiff from filing suit would have been served.     As

the district court noted, "[r]equiring the original plaintiff in

a civil rights action to pay a portion of the Intervenors'

attorney fees is, perhaps, unprecedented."    Flaherty, slip op. at
7 (August 23, 1993).   We decline to expand the rule of

Christiansburg Garment and create such precedent.   A prevailing

party may still only recover against a plaintiff in a civil

rights suit where plaintiff's suit is frivolous, unreasonable, or

groundless.


   B.    Award of Attorney's Fees as an Alternative to Dismissal

            Under Federal Rule Of Civil Procedure 41(b)

     The district court also held that an award of attorney's

fees was justified as an alternative sanction to dismissing the

case for failure to prosecute.   Accordingly, although we find

that the award of attorney's fees was not proper under 42 U.S.C.

§ 1988, we must also consider whether an award is appropriate as

an alternative to dismissal under Federal Rule of Civil Procedure

41(b).   Our review of the district court's fee award, where no

facts are in dispute, is plenary.   Quiroga, 934 F.2d at 502.

     The Commonwealth argues that nothing in the language of Rule

41(b) provides for an award of attorney's fees as an appropriate

alternative to dismissing a case.   Although a district court may

impose attorney's fees as a sanction under its inherent power,

see Roadway Express, Inc. v. Piper, 447 U.S. 752, 765-66, 100 S.
Ct. 2455, 2463-64 (1980), there must be some factual predicate

which would indicate that the plaintiff was less than diligent in

either prosecuting its case or complying with a court order.     See

Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863, 869 (3d

Cir. 1984) (award of attorney's fees would be proper in light of

dilatoriness of plaintiff's counsel).   We must thus decide
whether the district court erred in finding this sanction

appropriate.

     In support of its alternative justification for awarding

attorney's fees, the district court noted the following concerns:

(1) the Commonwealth's failure to prosecute the action and seek a

final adjudication on the merits in light of new Supreme Court

precedent, thus allowing what had become a legally questionable

preliminary injunction to remain the status quo for over fifteen

years; and (2) the Commonwealth's failure to urge the district

court to review the City's efforts at eliminating discriminatory

hiring practices.   Flaherty, slip op. at 14-15 (September 9,

1991).   Thus, from the record before us, it appears that the

district court pointed to the exact same conduct of the

Commonwealth when awarding attorney's fees under Rule 41(b) as it

did when awarding attorney's fees under 42 U.S.C. § 1988.

     We cannot conclude that the Commonwealth's conduct was

dilatory or an exercise of bad faith.   First, we do not think it

a prudent rule to require a plaintiff who prevails on a

preliminary injunction matter to run to the courthouse every time

he or she suspects that the legal support for the injunction may

have been undermined by recent caselaw.   Second, the City, rather

than the Commonwealth, would have been the appropriate entity to

petition the district court to review the police department's

attempts to eliminate its discriminatory hiring practices.

     Because the Commonwealth was not legally accountable for

allowing the preliminary injunction to remain in place in excess

of fifteen years, there is no justification based on the
undisputed facts in the record for awarding attorney's fees as an

alternative to dismissal.    The district court erred as a matter

of law in awarding attorney's fees as an alternative to dismissal

under Rule 41(b).



                            III. Conclusion

     We will reverse the district court's award of attorney's

fees in favor of the intervening defendants and against the

plaintiff Commonwealth of Pennsylvania.       The district court erred

in awarding attorney's fees against a plaintiff in a civil rights

suit without finding that the plaintiff's suit was frivolous,

unreasonable, or without foundation.    The district court also

erred by realigning the plaintiff Commonwealth as a civil rights

defendant for the purpose of awarding attorney's fees.      In

addition, the facts of this case do not warrant an award of

attorney's fees against the plaintiff as an alternative to a Rule

41(b) dismissal.

_____________________________
