Anne B. Zipes v. Trans World Airlines, Inc., and Independent Federation of Flight Attendants, Intervenor-Appellant

hood” policy Hartunian, Aram and IFFA’s predecessor, A. Hartunian, then Futter- representing Howard, man plaintiff & both the Chicago, Ill., class and appellees. flight unaffected attendants, entered into a Before CUMMINGS, COFFEY, and settlement with TWA. Although the dis- MANION, Judges. Circuit trict approved court the proffered settle- Presumably, although it is not clear from upon learning ants pregnancy. record, actually TWA flight terminated attend- ment, several disenchanted class members suit to object the settlement. Specifical- appealed. We reversed district court’s ly, IFFA opposed proposed approval upon of the 1971 settlement based grounds: first, on two untimely perceived the conflict we between then filing charges with EEOC mem- obligations union’s to the class on bers of Sub B Class left the district court the one hand then-currently and to the jurisdiction without equitable consider working flight attendants on the other. them, affecting second, relief that rein- Air Line Stewards and As- Stewardesses of the statement with full retro- Airlines, v. American sociation “competitive” active seniority2 would vio- (7th Cir.1973). We ordered IFFA’s late the bargaining agreement collective predecessor replaced to be as the class place then between TWA and the union’s representative. incumbent members. After days three of Following lawsuit, reinstatement of the hearings, during which time IFFA had an granted the district court the opportunity to air objections, the district summary judgment, motion for concluding approved court agreement the settlement policy TWA’s “no-motherhood” violat- expressly found that “full restoration ed Title proscription against VII’s discrimi- of seniority retroactive will not have an employment nation on the basis of sex. unusual impact upon adverse currently em- We the finding affirmed district court’s ployed flight attendants in a manner which employment unlawful discrimination but typical is not of other Title VII cases....” held that the claims of a number of the (Mem.Op., 2.) November 1979 at members of the class were barred because IFFA appealed, arguing light that in charges timely had not been filed with the this court’s earlier decision that timely the Equal Employment Opportunity Commis- filing charge of an EEOC was a jurisdic (“EEOC”). In re Consolidated Pre- sion prerequisite, tional the district court erred Proceedings Cases, trial in the Airline in holding that jurisdiction retained (7th Cir.1978). 582 F.2d 1142 holding Our approve agreement the settlement with re on the timeliness issue necessitated that we spect to again, Sub Class B. Once we plaintiff divide the class into groups— two ruled in of the favor and affirmed A, Sub Class class members whose EEOC the district reasoning prin that “the charges timely, B, were and Sub Class ciples favoring settlement of action class charges those whose were untimely—and lawsuits remain regardless the same that we remand the case respect with disputed whether legal issues on center the timely claims of Sub A. Class jurisdiction of the court over the ac Prior to action in the district court in tion.” Air Line Stewards and Steward response remand, to our parties esses Inc., v. Trans Assn. World reached a provided, settlement which inter 1164, 1169(7th Cir.1980). F.2d alsoWe alia, $3,000,000 TWA establish a set- affirmed remedy use of retroactive tlement fund to benefit all class members competitive seniority eligible for class and that each class member be credited members; in our view the settlement re with full company and union seniority from sponded appropriately both to past TWA’s the date of her termination by the airline. acts of discrimination as well as to the IFFA, the union certified to act as the tangible consequences past of those acts. collective-bargaining agent both for those Id. flight TWA attendants not affected airline’s discontinued poli- petition “no-motherhood” IFFA filed a for certiorari. The cy flight and for attendants granted hired since the petition Court termination plaintiffs, sought and petition it with an consolidated earlier filed permission received to intervene in the plaintiffs, law- consideration of which the Ordinarily, "seniority” employ- determines an among ments competing to benefits employees; ee's entitlement to benefits earned under an example, assignments; shift prerogative in employment “Competitive vacation; contract. seniority," scheduling training opportunities; hand, on other is used to allocate entitle- etc. light had deferred then-on- II. Court DISCUSSION negotiations between the going settlement appeal, On IFFA asserts that the fee- had plaintiffs and TWA. shifting provision VII, of Title section holding sought prior of our decision review 706(k),3 does not authorize an award of filing charges timely of EEOC consti- intervening par- prerequisite jurisdictional tuted a which ty which has not been accused of a viola- IFFA, the claims of B. barred Sub Class which, tion of federal law and in an effort hand, petitioned on the other for review of protect rights members, of its raises ruling our that the terms of the settlement arguments analogous to those a agreement reinstatement of dis- —the ordinarily make. Alternatively, charged flight attendants with retroactive disagree event we interpreta- with its competitive seniority impermissi- not —did 706(k), tion of section points to cer- bly infringe upon collectively-bargained “special tain circumstances” which it flight of incumbent attendants. claims render an inappropri- award of fees Airlines, Inc., Zipes v. Trans World In 455 Finally, ate. IFFA argues that even if the 102 71 L.Ed.2d 234 district court’s decision to award fees is (1982), the Court held that we had been upheld, multiplier the use of a to increase construing mistaken in filing require- the amount of the award to counsel for Sub VII, 2000e-5(e), ment of Title Section as improper. Class B was We consider these being jurisdictional agreed but that rein- arguments in turn. statement of the with full retro- competitive seniority active a remedy was Liability A. Intervening “Innocent” appropri-

both authorized Title VII and Parties ate these circumstances. Having been twice vindicated in the Su Daley, Charles v. Court, In

preme 846 attorneys F.2d 1057 peti (7th Cir.1988), question tioned the we addressed the district court for an award of against fees IFFA for their whether an party successful de “innocent” third inter fense of the agreement. In venor-defendant can be held liable for the turn, $57,- the district court attorneys’ assessed IFFA fees prevailing incurred 258 as party fees for counsel for Sub Class A and under Rights the Civil Attorneys’ $171,747 (comprised figure Act, of a “lodestar” Fees Awards 42 U.S.C. 1988.4 § $85,873.50 2) increased multiplier Charles involved an attorneys’ award of as fees for counsel for Sub Class B. Air pursuant fees against to section 1988 three Line Stewards v. Trans World private parties who intervened on the side Inc., F.Supp. (N.D.Ill.1986). 640 861 Sub of challenging Illinois a suit the constitu sequently, upon motion, the district court tionality of the State’s criminal abortion multiplier lowered the compute used to In finding against statute. intervening fees for 1.44, Sub Class B yield from 2 to defendants and in favor of prevailing $123,657.84. an award to counsel of Charles, held, we that al liability IFFA’s total though fees incurred sole language of section 1988 does ly challenge as a result of its to the settle not explicitly enumerate those agreement ment currently thus stands at whom may an award of imposed, fees be $180,915.84. overriding purpose of the statute —to 2000e-5(k) 706(k), pro- pro- proceeding any to enforce a § Section 42 U.S.C. In action or 1982, 1983, part: vides in relevant sections 1985 vision of title, proceeding under this sub- IX of Public Law 92- action or 1986 of this title chapter court, discretion, may Rights allow Act of in its or title VI of the Civil party, [Equal discretion, other than in its allow Opportunity Employment] Commission or the States, prevailing party, the United other than States, attorney’s as a reasonable United attorney’s part fee as a reasonable costs_ part of the costs. added). (Emphasis pertinent part: 4. Section 1988 states in

encourage vindication of civil opposition due to to consent decree affect ‘private attorneys general’ be fur ing members), aff'd, 653 F.2d 1016 —would by interpreting thered in section 1988 to Cir.1981); Bricklayers, Moten v. Masons discretionary clude fee awards un Plasterers, 543 F.2d 224 (D.C.Cir.1976) defendants, intervening successful regard (business seeking association unsuccessful less of whether the could intervenor actual ly appeal to intervene in of a Title VII ly be found to be a violator of federal law lawsuit assessed having fees despite en 12-13; under U.S.C. 1983. Id. at see gaged in no activity); unlawful Thompson also Reproductive Akron Health Sawyer, Center for v. F.Supp. (D.D.C.1984) Akron, City (N.D.Ohio F.Supp. (Title attorneys’ VII imposed against 1984) (Section part 1988 fees awarded non-party union for attempts unsuccessful against private joined intervenors City who at challenge intervention to relief attained Akron in defending constitutionality of lo by plaintiffs).5 ordinance). cal abortion unper areWe argument raises a related which suaded that the facts of the instant case proceeds premise that, from the because its require adopt us to a different rule under role in opposing agreement the settlement only operative VII: not is the lan was more closely analogous to that of a guage of section virtually identical defendant, than to that of a that used in section but the Su should be held liable for if its preme Court has previously observed that intervention in the lawsuit can be deemed in considering fees, awards of attorneys' frivolous or unreasonable. The district courts should consult related rejected court the intervenor’s “functional fees statutes and case law. Hensley See v. plaintiff” argument and we concur. Eckerhart, 424, 7, 103 U.S. 461 433 n. S.Ct. 1933, 7, It is (1983); 1939 n. 76 law that prevailing L.Ed.2d 40 settled a see Title also Co., VII is presumptively Zabkowicz v. West entitled Bend to 540, (7th Cir.1986). 549 n. fees. Moreover, Paper 9 Albemarle v. Moody, Co. 422 other applying circuits U.S. Title VII’s fee 95 45 L.Ed.2d 280 provision (1975); award Zabkowicz, have construed statute 789 F.2d at 548. How- against ever, allow fee awards in “innocent” de Christianburg Garment Co. v. fendants and E.E.O.C., intervenors. e.g., 434 See Allen U.S. 98 S.Ct. 54 Transport Co., Inc., Terminal (1978), L.Ed.2d Supreme 486 648 Court held 1195, 1202 F.Supp. (N.D.Ga.1980)(union rigorous de that a more standard of eligibility fendant guilty of no discrimination applies held prevailing when VII Title defend- partially for liable Title VII attorneys’ fees ants seek to recover fees from unsuccess- 5. IFFA cites Richardson v. against course, Alaska offending is, 750 "employer.” an There of (9th Cir.1984), F.2d 763 support in of its conten- limiting language no respecting such only tion that those found to against be violators of those may imposed whom fees be in federal VII; law be statutory 706(k) thus, held liable section of Title we are in no attorneys’ Richardson, however, way clearly precluded fees. imposing Richardson from distinguishable from against the case bar. at In Rich- fees IFFA here. ardson, pilots’ union intervened unsuccessful- Similarly, points to Natural Resources ly brought in a Age lawsuit under the Discrimi- Council, Thomas, Inc. v. 801 F.2d 457 Defense ("ADEA") nation in Employment Act to contest (D.C.Cir.1986) (Scalia, J.) in which the District the fairness aof consent decree reached in the of Columbia Circuit attorneys’ refused to award underlying litigation. The decree was ultimate- fees, pursuant attorney to the provision fee ly approved by the district court Richard- Act, 1365(d), Clean Water 33 § U.S.C. son, prevailing party original in ADEA against guilty an intervenor of no violation of action, petitioned statutory the court for attor- affirming federal law. In the district court’s neys’ against fees the union. Both the district Thomas, denial of fees intervenor and, appeal, court on rejected the Ninth Circuit specifically the court statutory noted that the not, petition Richardson’s for fees but as IFFA language 1365(d) employed in section was nei- believe, would have us because the union itself ther textually language similar to the of 42 was innocent of violation of federal (and law. § U.S.C. 1988 section extension Instead, Richardson was fees VII) denied because susceptible pro-pre- nor to the same pertinent ADEA, provision of the 29 vailing party U.S.C. interpretation that courts have ac- 626(b), provides only an corded section 1988. Id. 801 F.2d at 461 n. 3. plaintiffs. Specifically, prevailed ful held Court over the intervenors’ challenge to defendants are entitled to decree, the consent the Eleventh Circuit’s only upon award of fees finding decision on the issue of section 1988 fees “frivolous, plaintiffs action was unrea- expressly recognized importance or sonable without foundation.” Id. at countervailing constitutional claims raised 98 S.Ct. 700. While the at Court intervening Indeed, white officers. explicitly has never considered the stan- the court found the role of the intervenors applicable request dard to a for an award Reeves be the equivalent functional intervenor, of fees an unsuccessful plaintiffs.7 that of so holding, In the court IFFA urges that because sole- intervened suggested that such a result required was ly to assert the itsof non-discrimina- if good defendants with faith constitutional ting members, incumbent it should be claims of their own were not to be deterred viewed, practical terms, plaintiff, as a from litigating them for fear of statutory hence assessed if liability.8 1484; Id. at see also Grano opposition its to the settlement was found v. Barry, (D.C.Cir. F.2d groundless.6 to have been In the instant 1986); Kirkland v. New York State De case, the district court made no such find- partment Services, Correctional ing. F.Supp. (S.D.N.Y.1981) (“[F]orc- The most recent exposition of IFFA’s bring intervenors to their constitutional plaintiff” argument “functional appears to claims only at the risk of becoming liable have Harrell, been made in Reeves v. 791 for opponents’ fees if they do not — (11th Cir.1986), F.2d denied, cert. prevail may substantially deter such inter -, ...”), vention part, part rev’d in aff'd Reeves, a case apparently not grounds, on (2nd other 520 F.2d 420 Cir. brought attention, the district court’s 1975). IFFA us characterize police white officers intervened to chal posture in this case precisely as the lenge the constitutionality of a consent de Eleventh Circuit characterized the inter- cree police entered into black officers position venors’ in Reeves. We decline to and the Sheriff’s County, Office Bibb Acceptance do so. of a plain “functional Georgia. The black brought officers suit exception tiff” to the rule favoring fee against the Sheriff’s alleging Office racial to awards plaintiffs, Title VII in job in assignments discrimination pro and view, our unnecessarily threatens under to motions in violation of U.S.C. §§ mine has what come to be interpreted as a and 1983. The argued intervenors that the statutory presumption deliberate in favor decree, terms of the consent which called of awards prevailing parties. such to promotion for of black equal officers on an officers, basis with white would in One only turn need plain look to the language discriminate 706(k) on them the of of basis section Congress to discover that race. Although plaintiffs the ultimately only intended one litigants, of prevail- class Daley, 86-3137, 6. In Charles v. cognizant Nos. 86-1552 and defendants, While thus too, the fact of that slip op. 1988) May Cir. we explicitly may position be in important to assert argument declined to consider an such because statutory rights, nothing constitutional and in it had been raised in an amicus brief. legislative history section 1988’s contradicts its plain language suggests any or factor other legislative In the colloquy preceding passage party’s than a success should be determinative of 42 Congress U.S.C. specifically recog- or, conversely, of to liability entitlement for nized the rights vindication of civil need fees. always not plaintiff: be the task a of "In the large majority party parties of cases or the seek- 8.Although the ing Circuit Eleventh found the inter- rights to plaintiff enforce such will be the functionally equivalent to However, venors be plaintiff-intervenors. and/or to in the procedural cases, purposes posture liability attorneys’ of for Title VII parties some the fees, seeking to enforce the court such found their be de- intervention thus, end, untimely fendants or been S.Rep. susceptible defendant-intervenors." and No. in the Cong., 94th 2d imposition at 4 n. liability Sess. 1976, U.S.Code of fee under Chris- Cong. & pp. Admin.News tianburg. n. 4.

ing eligible parties, Thus, be to recover tiff class or TWA. IFFA asserts expended litigation. in Title VII Con- escaped 706(k) it could have section 706(k) versely, nowhere does section ex- liability merely by deciding to file its own pressly litigants exclude class of from lawsuit, independent one which would not liability such awards. While we are not have identified the union’s interests with interpretation unmindful that a literal those of TWA in underlying litigation. 706(k) may, time, section from time to re- Assuming for the moment that a subse in imposition sult of a fee award quent suit IFFA would not be barred as against party whose sole involvement in a untimely,9 the fact procedural that such a Title VII lawsuit is limited to an assertion loophole in exists statutory VII’s countervailing rights (i.e., constitutional scheme constitutes a flaw that must be Reeves), in intervenors we are none- Congress, addressed to not to the federal theless provi- bound to the fee apply Whitehurst, courts. Kennedy v. Cf. written, sion of Title VII as it is not as it (D.C.Cir.1982) F.2d (“Arguments might have e.g. been written. See United centering inequities on the caused States v. American Trucking Associa- of fee-shifting absence are properly ad tions, Inc., 534, 543, Congress dressed to the and not to the 1063-64, (1940) (plain 84 L.Ed. 1345 mean- courts.”). phase The settlement of this given of statute must be effect unless pitted case class inter doing so would result “absurd” or “fu- IFFA; vening defendant that IFFA now tile” results or so results unreasonable as regrets having proceed chosen to as an plainly to be at policy variance with the intervenor does having not relieve it from legislation whole). as a Section to bear the consequences financial of that unequivocally pre- endorses fee awards to decision.10 vailing parties; Title VII prevailed and, the case at bar consequently, greater concern, Of however, even is our are entitled to the fees awarded them belief that were we adopt the “function- the district court. plaintiff” al approach articulated in Reeves IFFA, might advocated very we syl- contends that such narrow and encourage intervenors, well ultimately logistic reasoning places importance undue defendants, in Title VII lawsuits to manu- upon the alignment nominal parties. constitutionally-derived facture or example, IFFA statuto- argues For that had it wait- rily-based approval attempt ed until after defenses of the cloak themselves in protective guise between the and TWA of func- and then separate plaintiffs, filed a tional action of its own contesting rendering effect them validity agreement, statutory it could not immune from liability except have been held liable for the fees incurred where their defenses are held to be com- in connection with even successful pletely de- without merit. See Christianburg, fense of the by plain- 421, settlement either the 434 U.S. at 98 Congress S.Ct. at 700. —Ortiz, U.S. -, 586, In Marino v. 108 S.Ct. 10. The "unjust” dissent characterizes as de- our (1988), Court, Supreme 98 L.Ed.2d 629 the impose IFFA, liability upon cision to fee which equally panel, an divided let stand a court of admittedly way responsible was in no for TWA's appeals affirming decision a district court’s dis Moreover, breach of Title VII. the dissent as- separate challenging missal of a suit a consent "[djenying serts that fee awards ... in- brought by decree nonparties underlying to the significantly plain- tervenors will not diminish litigation. Title VII nonparties Failure the to ability tiffs’ to counsel.” attract The instant joined have the earlier as lawsuit either co-de case, however, fallacy demonstrates the of fendants or intervenors rendered their subse reasoning. possibility dissent’s Absent the quent attacking action the consent decree an IFFA, recovering attorneys' fees from "impermissible itz, attack.” collateral Marino v. Or prevailing plaintiffs likely have been (2d Cir.1986). 806 F.2d 1146 It there hard-pressed up to come with sufficient funds to fore remains subsequent unclear whether a col willing attract counsel to defend their settle- lateral attack of a Title VII settlement non- and, ment before the district this court parties original to the lawsuit could be em finally, Supreme Court. ployed strategy prospective as a intervenors escape statutory liability. to

441 first recognized by Supreme attorneys' Court in has authorized fee awards in Steele v. Louisville & Co., Nashville R. employment discrimination cases as an in- 323 U.S. 65 lawyers 89 L.Ed. 173 ducement to individuals-both laymen and (1944), it required join bring private this lawsuit to alike-to lawsuits as contest validity attorneys general thereby agree- settlement aid in the VII; acceptance by ment reached between the plaintiffs and enforcement of Title plaintiff" excep- Steele, TWA. a case arising under the the courts of a "functional liability Railway Act, Labor held that “when Con- tion to Title VII fee tially could substan- gress empowered bargain unions to exclu- undermine this crucial incentive to ordinary sively for all employees particular in a citizens to enforce this Nation's bar- rights gaining unit, thereby civil government simply laws in circumstances where the subordinated in- dividual interests cannot. We are not interests of the favorably upon po- whole, unit as a imposed inclined to look tentially injurious exception such a on unions a long- duty inseparable to this correlative pow- from the standing legislative representation er of scheme. to exercise that au- thority fairly.” International Brother- Special B. Circumstances hood Electrical Foust, Workers v. Despite general pre 42, 46, U.S. 2121, 2125, 99 S.Ct. rule that L.Ed.2d vailing parties litigation (1979). A represent union must thus in Title VII are presumptively attorneys' fees, fairly the interests of all bargaining-unit entitled to during members negotiation, Court has held that fees adminis- narrowly tration and be withheld where certain defined enforcement of collective-bar- "special present gaining agreements. circumstances" are Gibson, Conley v. unjust. 41, 46, would render an award of fees Al 355 99, 102, 78 S.Ct. 2 L.Ed.2d Paper Co., bemarle 422 U.S. at 95 80 In particular, a union breaches 2370; Christianburg, S.Ct. at 434 U.S. at duty representation of fair only “when 417, 98 S.Ct. at 698. IFFA contends that conduct toward a member of [its] the col- "special two such circumstances" exist in lective bargaining is arbitrary, unit discrim- First, the instant case. bargaining representative as the exclusive inatory, faith,” as, or in bad example, members, of its when it “arbitrarily ignore[s] a meritorious obliged, IFFA claims that it was under the grievance or process[es] it in perfuncto- [a] judicially implied duty representa of fair ry fashion.” Sipes, Vaca v. tion, plaintiffs' to intervene in the Title VII 190-91, 903, 916-17, 87 S.Ct. 17 L.Ed.2d parties' lawsuit in an effort to set aside the (1967); Foust, 442 U.S. at 99 S.Ct. agreement, adversely which af at 2125. collectively-bargained fected the compulsory partic Notwithstanding IFFA’s assertions of its members. Such ipation, argues IFFA, surely the contrary, duty representa of fair constitutes a special vitiating any liability tion does not and never has been construed circumstance addition, posits guarantee employee bargain or for Title VII fees. In special ing unit has an right absolute to have a as a second circumstance the fact already grievance or other action brought on its been generous behalf, Vaca, see U.S. at awarded a quate and more than ade $1,250,000-as at 917. Elgin, sum-in excess of at Joliet and Eastern Graf torneys' pre-set- Co., Railway fees in connection with the Cir. phase litigation 1983); tlement of this and hence but see Richardson v. Alaska Air necessary. lines, (9th 750 Cir.1984) no further award of fees is We F.2d 763 (imposi persuaded "spe tion of fee are that neither asserted award intervening union justifies withholding only punish “would cial circumstance" it for performing an it award of fees to the counsel. and their act was duty do”). under a fact, in a conscious effort to minimize judi federal Initially, IFFA is mistaken when it cial intervention in disputes, labor unions duty claims that the representation, of fair have consistently been accorded considera- 442 deciding 3098,

ble discretion in whether and to (1986), 92 L.Ed.2d 439 fee-shifting employee grievances what extent should be designed statutes are plain- to reimburse Ford Motor prosecuted. See Co. v. legal tiffs for reasonable expended in Huff man, 330, 337-38, 681, 345 U.S. 73 S.Ct. types certain of point- lawsuits. IFFA has 685-86, (1953) (“A 97 L.Ed. 1048 wide ed to no errors in the district court's calcu- range of reasonableness must be allowed plaintiffs’ post-settlement lation of the statutory bargaining representative in (ie., number of attorney hours claimed or serving represents ”); see hourly unit ... sought); rates contention is Rupe Spector also v. Freight Systems, over-compensated counsel were by the Inc., 685, (7th Cir.1982); Bak 679 F.2d 691 district court’s earlier award any and thus Industries, Inc., er v. Armsted 656 F.2d further award amounts to an abuse of dis- 1245, (7th Cir.1981); 1250 v. Ken Peterson post-settlement cretion. proceedings nedy, 1244, (9th Cir.1985); 771 F.2d 1253 case, in this attacking directed at very Corp., Hart v. National Homes 668 F.2d essence of this lawsuit’s successful and 791, (5th Cir.1982); 794 n. 4 N.L.R.B. v. carefully resolution, crafted already Union, American Postal Workers 618 in consumed excess of years litiga- of two 1249, (8th Cir.1980). F.2d 1255 Rather tion arguments and have included before than requiring pursuit the initiation and of court, the district this court and the Su- employee grievances by unions, labor preme Court; accordingly, we find no duty of fair representation merely sets abuse of discretion in the district court’s forth standards to be adhered to by unions decision to reimburse the fully in determining prosecute not to appeal or they the fees during incurred this im- grievances brought to them mem their portant separate and procedurally phase of 139, bers. See N.L.R.B. Local Interna litigation. tional Union Operating Engineers, 796 of (7th F.2d Cir.1986); 992-93 United C. Enhancement the “lodestar” fig- Independent Flight v. United Officers ure (7th 756 F.2d Cir. 1985). IFFA in way was thus no compelled calculating After the lodestar sum to and, intervene in this lawsuit according which counsel for Sub B Class were enti ly, its decision proceed to so does not con IFFA, tled from the district employ “special stitute a circumstance” abrogating 1.44, multiplier adjusted its fee its fee liability 706(k). under section upward $37,984.65 award to account for delay filing time between the of Sub posited IFFA’s “special second cir post-settlement Class B’s petition fee cumstance” also persuade fails to us that May and the date of the court’s district actual court’s award of fees to the September award 1986. We have any way was in inappropriate. noted on at least two argues previous The union that because occasions counsel enhancement of a fee received an award to com “enormous” fee for pensate performed counsel for the work time-value of mon connection with (another ey pre-settlement way phase lawsuit, saying delay in pay this ment), additional while no mandatory, fees for means counsel’s is post-settlement certainly legal within work a district court’s constitutes a discretion. Sealy See Ohio windfall. Not only Mfg. objections are Mattress Co. v. Sealy, here to Inc., the size of (7th the district F.2d pre-settle court’s Cir.1985); belated, ment fee award Chrapliwy Inc., v. Uniroyal, but that fee award entirely purposes Cir.1982), irrelevant for 770 n. 6 denied, cert. of evalu ating the post-settlement district court’s U.S. 103 S.Ct. fee award. fee-shifting Moreover, While statutes are in Pennsylvania v. De — designed not “as a form of Valley Council, laware Citizens’ economic relief improve -, financial lot of attorneys,” (1987), L.Ed.2d 585 Pennsylvania v. Delaware Valley Citi argument after decided oral in this case Council, zens’ 546, 106 and holding that adjustments lodestar upon nonpayment the risk of based are sound discretion of court.”), the district Supreme observed, inappropriate, the Court denied, cert. 106 S.Ct. however, suggest, do not that ad- 88 L.Ed.2d “[W]e Accordingly, the justments delay are for inconsistent with district $123,657.84 court’s award of typical fee-shifting statute.” Id. at against IFFA post-settlement fees is 3082. upheld in entirety. its case, instant the district III. CONCLUSION independent research, through deter long-term Treasury pur mined that a Note (i) We hold in an appropriate that exercise chased at about the time of Sub Class B’s discretion, of its the district court found petition yielded purchas fee have IFFA liable for statutory attorneys’ fees approximately er per year, represent llk% 706(k) under (ii) section of Title VII and that ing a of 1.44. multiplier multiplier This the district court’s multiplier use of a was, turn, augment used to the district enhance Sub Class B’s fee award was also figure. court’s basic lodestar Although a not an abuse of discretion. strong presumption exists that at the time Affirmed. petition a fee is figure filed the lodestar represents the “reasonable” fee to which MANION, Judge, Circuit dissenting. 706(k) section prevailing parties, entitles protect To jobs, its members’ the IFFA e.g. see Pennsylvania v. Valley Delaware litigation intervened in this and presented a Council, Citizens’ 478 U.S. 106 S.Ct. substantial, good-faith challenge to the set- 3088, 3098, (1986), 92 L.Ed.2d 439 pas tlement plaintiffs between and TWA. sage of time and the economic vicissitudes When the challenge IFFA’s ultimately capable inherent eroding therein are a proved unsuccessful, the district court that, award such an extent in real awarded fees plaintiffs as terms, longer it no represents a “reason “prevailing parties” against un- approximation able” of the value of the der the applicable same standard to defend- legal services intended to be compensated. ants who have violated their employees’ very It is for this reason that courts fre rights. civil majority upholds this quently prejudgment interest. Re award. I respectfully dissent.1

gardless (use of the method employed of a multiplier or an prejudgment award of in In Christianburg Garment Co. v. terest), equitable adjustment EEOC, lode 434 U.S. 98 S.Ct. 54 L.Ed. star to year delay offset a five in payment (1978), 2d 648 Supreme Court made not, does in the presented by circumstances clear that the standards under which case, this 706(k) constitute an abuse of discret fees are awarded § must be as ion.11 Valley, 3082; Delaware 107 S.Ct. at light sessed in policies underlying Michaels, Michaels v. 706(k), statute. Under § cf. (7th Cir.1985) (“[T]he decision to presumptively entitled award prejudgment interest rests in the from a held defendant liable on the merits Shaw, Library Congress 11. But vening see defendants who were not liable on the (1986), merits of 42 U.S.C. § 1983 claims. that, wherein the Court held as distinct I dissented in ground that case on the that the private fees, from a liability defendant’s plaintiffs could not be "pre- deemed to have government’s federal immunity traditional from against vailed” defendants who were not liable to an award of interest could not be circumvented plaintiffs Likewise, on the merits. I believe by enhancing compensate a lodestar to for a 706(k) should applied not have been delay receiving payment. Id. 106 S.Ct. at this case because did not obtain re- lief on the merits intervening union on their Title VII claims. Because § 1. In Daley, Charles v. 846 F.2d 1057 42 U.S.C. § operative the same lan- Cir.1988), recently circuit this guage held that under concerning however, prevailing parties, U.S.C. § 1988 the were entitled to at- requires Charles pre- be treated as torneys’ "prevailing party’ as vailing parties inter- against the IFFA. settling special would render was the lawsuit. TWA was unless circumstances awarding unjust. going complement flight fees Id. 434 U.S. at 416- to have a full prevailing at 697-98. A de- they S.Ct. came attendants whether from the fendant, however, is to not allowed recover plaintiffs’ employees’ or incumbent ranks. plaintiffs “the fees from a unless may legal IFFA While the not have had a unreasonable, frivolous, or with- action was intervene, obligation certainly foundation_” out Id. at 98 S.Ct. at simply unusual for the IFFA to have been The reason for this distinction is not ignore substantially a settlement that al- express in the statute’s lan- contained job tered its contract with TWA and the “prevail- guage. The statute refers fact, security of its In members. this cir- Court, ing parties.” The how- employees’ cuit dismissed the incumbent ever, set forth three reasons for distin- predecessor plaintiffs’ union as the class guishing plain- between defendants and representative specifically the un- because First, 706(k) sought tiffs. to facilitate § representing ion’s interest in the collective rights the enforcement of the civil laws rights bargaining employ- incumbent through “private attorneys general.” Id. position rep- ees conflicted with its as class 416-18, Second, at 98 S.Ct. at 698-99. resentative. See Air Line Stewards and granting prevailing attorneys’ defendants Ass’n, Stewardesses Local 550 v. Ameri- fees as a matter of course would act as a Airlines, Inc., can 490 F.2d 639-42 significant disincentive for (7th Cir.1973). The fact that the IFFA did bring rights 421-22, civil suits. at Id. what its members elected it to do and this Third, at 700-01. “when a district do, expected is, circuit represent it to court awards counsel fees to a the interests of employees, incumbent is plaintiff, awarding against it is them a something subject not that should it to violator of federal law.” at Id. attorneys’ Title YII fees. S.Ct. at 699. Moreover, policy encouraging the “pri- case, In this the IFFA intervened to as attorneys general” vate to enforce Title bargaining sert the federal collective imposing VII does not against warrant addition, employees. of the incumbent In 706(k) the IFFA. Section seeks to encour- neither the IFFA nor the incumbent em age plaintiffs bring suits defend- ployees in any way responsible were ants who violate policy federal law. This policy spawned “no-motherhood” attenuated, any, has if relevance to inter- underlying litigation and ultimate set venors like IFFA who did not violate situation, tlement. In such a applica addition, denying Title VII. fee awards Christianburg poli tion Garment against such signifi- intervenors will not treating cies warrants the intervenors as cantly plaintiffs’ ability diminish to attract purposes. See aptly counsel. This is demonstrated in the Harrell, Reeves v. present case where — counsel has (11th Cir.1986), denied, U.S. -, cert. already $1,250,000 received more than from As $3,000,000 settlement. dispute presented there is no substantial, good-faith challenge to the encouraging persons Rather than to act settlement, the assessment of fees “private attorneys general,” as majori- Moreover, inappropriate. it was regardless ty’s construction of quite will have posture litigation how IFFA’s in this opposite effect. Title VII lawsuits of- characterized, the circumstances of this many employees ten affect other than the case unjust. render the award of fees plaintiffs. named The settlement of a Title negotiations granting In the VII suit or of remedies between TWA, court employees neither side had a leave some in a less strong in protecting interest jobs employment position desirable or out of a employees. TWA’s incumbent job altogether. Many Plaintiffs of these affected obviously strong had a regain- interest in employees will have substantial claims that jobs. their old primary TWA’s interest the settlement or remedies violate their bargaining collective rights under a own VII, the Constitu- or even

agreement, of these cases just resolution

tion. participation everyone

requires the full assessing Mechanically attor-

involved. intervening employees

neys’ fees anybody’s

who did not violate posture enough fortunate

who are not “plaintiffs,” will ensure that

themselves as many sides will be heard cases two dispute.

in a multi-sided the district court’s

I would reverse fees.

AUGUSTA BAKERY

CORPORATION, Petitioner, LABOR

NATIONAL RELATIONS

BOARD, Respondent.

No. 88-1632. Appeals,

United States Court

Seventh Circuit. April

Submitted 1988. 6,May

Decided Arnold, Ill., Waukegan, Kathy

A. Eric Arnold, Zion, Ill., petitioner. A.W. Moskowitz, N.L.R.B., Abby Eric Pro- G. Simms, D.C., Washington, respon- pis dent. BAUER, Judge,

Before Chief EASTERBROOK, POSNER and Circuit Judges.

EASTERBROOK, Judge. Circuit representing 11 employees The union Augusta Bakery Corp. called a strike Augusta oper- continued November 1985.

Case Details

Case Name: Anne B. Zipes v. Trans World Airlines, Inc., and Independent Federation of Flight Attendants, Intervenor-Appellant

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jul 22, 1988

Citation: 846 F.2d 434

Docket Number: 86-2731

Court Abbreviation: 7th Cir.