James REEVES, et al., Plaintiffs-Appellants, v. James B. HARRELL, et al., Intervenors-Appellees, v. Ray WILKES, et al., Defendants-Appellees.
No. 85-8717.
United States Court of Appeals, Eleventh Circuit.
June 23, 1986.
Rehearing and Rehearing En Banc Denied Aug. 7, 1986.
1481
Charles R. Adams III, Cynthia T. Adams, Ft. Valley, Ga., for Harrell.
O. Hale Almand, Jr., Susan S. Cole, Macon, Ga., for Wilkes.
Before HILL and CLARK, Circuit Judges, and HENDERSON, Senior Circuit Judge.
HENDERSON, Senior Circuit Judge:
This appeal raises novel issues growing out of the efforts of a group of civil rights plaintiffs to secure an award of attorney‘s fees after their successful defense of a consent decree. After a careful review of the briefs, the record and the relevant case law, we conclude that the district court erred in denying the plaintiffs attorney‘s fees against the intervenors and therefore we affirm the judgment in part and reverse and remand in part.
Factual Background
On March 24, 1978, black deputy sheriffs in the Bibb County Sheriff‘s Office filed a lawsuit in the United States District Court for the Middle District of Georgia alleging that they had been denied job assignments and promotions because of their race. The complaint, brought pursuant to
On February 17, 1982, two years and eight months after the consent decree was entered, two white deputy sheriffs filed a motion to intervene as plaintiffs in the action. They alleged that, pursuant to the consent decree, the defendants adopted policies and practices which discriminated against the intervenors on the basis of race with respect to promotions. The original plaintiffs vigorously opposed the motion to intervene claiming that the motion was untimely and that the intervenors’ substantive claims lacked merit. The Sheriff and the Board of Commissioners took no posi
On April 28, 1982, the district court granted the motion to intervene. Subsequently, the intervenors filed a motion to dissolve or modify the consent decree. On December 9, 1983, the district court granted the intervenors’ motion and dissolved the 50% quota requirement relating to promotions within the Sheriff‘s department. The plaintiffs appealed that decision to this court which reversed the district court for the sole reason that the motion to intervene was not timely filed. Reeves v. Wilkes, 754 F.2d 965 (11th Cir.1985).
The plaintiffs then filed an application for attorney‘s fees in the district court against both the intervenors and the defendants pursuant to the provisions of
In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985 and 1986 of this title ..., the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney‘s fee as part of the costs.
On August 13, 1985, the district court entered an order denying the plaintiffs’ motion for attorney‘s fees as to both the defendants and the intervenors. The court found that the defendants were not liable for attorneys’ fees because they “played at most a neutral role in the intervention proceedings” and thus were not in an adversarial relationship with the plaintiffs. Record on Appeal, Vol. II, tab 216 at 7-8. The court further held that the intervenors were not responsible for attorneys’ fees because the plaintiffs prevailed on a procedural point only and thus were not “prevailing parties” under
Discussion
1. The Defendants
In Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), the Supreme Court repeated the well established rule that “each party in a lawsuit ordinarily shall bear its own attorney‘s fees unless there is express, statutory authorization to the contrary.” Id. at 429, 103 S.Ct. at 1937.
The plaintiffs urge that the defendants were not neutral but instead “encouraged the white deputies to file a reverse discrimination complaint” thereby contributing “to the time and expense of plaintiff [sic] in protecting and vindicating the Consent Decree.” Plaintiffs’ brief at 13, 28. The evidence in the record relied on by the plaintiffs to support this proposition consists entirely of two statements made to the media by representatives of the Sheriff‘s department. On October 23, 1981, before the filing of the intervenors’ motion, Sheriff Wilkes stated in a Macon newspaper that “[w]e‘re hurting some men who have excellent records because of the consent decree.” And, the same article quoted the Bibb County Personnel Director as saying that “[t]he one-on-one requirement has slowed the promotion process.” These two out-of-court statements do not in any way
The plaintiffs also claim that they are entitled to attorney‘s fees against the defendants because the defendants did not join the plaintiffs in their efforts to dismiss the intervenors’ complaint. This argument, however, presupposes an obligation on the part of the defendants to defend the consent decree against third parties. The plaintiffs have failed to cite to any case law, statute, or policy reasons to support that proposition in a situation where third parties act independently of the original defendants. In view of the general rule which does not permit the grant of attorney‘s fees unless expressly provided otherwise by statute, see Hensley, supra 461 U.S. at 429, 103 S.Ct. at 1937, we hold that there is no basis in the present record upon which to award the plaintiffs attorney‘s fees against the defendants.
2. The Intervenors
The district court did not assess attorney‘s fees against the intervenors for two reasons. First, the court found that the intervenors should be characterized as plaintiffs and therefore could not be liable for attorney‘s fees because their claims were not frivolous or unreasonable. Second, the court found that the plaintiffs were not “prevailing parties” because they succeeded on only a procedural matter. We conclude that the district court abused its discretion on both points and should have awarded reasonable attorney‘s fees to the plaintiffs.
Under
The motion to intervene was filed over two and a half years after the entry of the consent decree. Although the district court did not discuss timeliness in its order granting the motion to intervene, a panel of this court found that the district court abused its discretion by allowing the intervention after so long a delay. Reeves v. Wilkes, 754 F.2d 965 (11th Cir.1985). In fact, the Reeves panel found that the intervenors failed to meet any part of the four-prong test for timely intervention laid out in Stallworth v. Monsanto Co., 558 F.2d 257 (5th Cir.1977).2 The Reeves opinion adequately articulates the reasons for the untimeliness of the intervenors’ motion and there is no need to repeat that discussion here.
The intervenors maintain that their claims were not frivolous because the district court ruled in their favor on the merits and because the Reeves panel did not overturn that decision but simply found the intervention untimely. This argument, however, misses the point. The intervenors chose to use intervention as the
The district court also held that the intervenors were not liable for attorney‘s fees because the plaintiffs prevailed solely on a procedural point. The court cited Hanrahan v. Hampton, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980) to support its decision. The court‘s reliance on Hanrahan is misplaced. In Hanrahan, the plaintiffs were awarded attorney‘s fees after they secured a ruling from the Seventh Circuit Court of Appeals overturning a directed verdict and remanding the case for a new trial. The Supreme Court reversed the award of fees holding that Congress intended that such fees were available only after a party had prevailed “on the merits of at least some of his claims.” Id. at 758, 100 S.Ct. at 1990. Because the relief obtained in Hanrahan was interlocutory in nature, the Supreme Court held that the plaintiffs were not prevailing parties for purposes of
In the present case, the intervenors contend and the district court found, that the plaintiffs are not prevailing parties because the Reeves panel did not reach the merits of the intervenors’ complaint but rather found for the plaintiffs for procedural reasons. This argument ignores the fact that the plaintiffs prevailed completely in this lawsuit. They successfully defended the consent decree and its quota provision. Unlike the situation in Hanrahan, where the plaintiffs still had to litigate the merits of their action before a jury, no further action is required by the plaintiffs to prevail here. Consequently, the plaintiffs completely prevailed in this litigation and are entitled to attorneys fees from the intervenors.
In summary, we find that the district court correctly determined the plaintiffs were not entitled to attorney‘s fees from the defendants. We conclude, however, that the court abused its discretion by disallowing fees from the intervenors. Accordingly, the case is remanded to the district court for a determination of a reasonable fee award.
AFFIRMED in part and REVERSED and REMANDED in part.
HILL, Circuit Judge, dissenting:
I agree with the majority‘s conclusion that the intervenors in this action should be considered “plaintiffs” for the purposes of determining whether they should be held liable for attorney‘s fees. I must respectfully dissent, however, from the majority‘s judgment that the intervenors’ claim to intervention in this case was frivolous. The majority frames the issue as I do, by asking “whether [the intervenors‘] decision to pursue [their] claims by filing a motion to intervene was frivolous or unreasonable.” Ante, at 1485. I cannot agree with the majority‘s conclusion, however, that the intervention they sought “was clearly unavailable to them under existing case law” because it was untimely. Id. In my view, intervenors could reasonably have concluded, on the basis of the case law available to them at the time, that their claim to intervention enjoyed a sufficient probability of success before the district court and this court when it was filed to have elevated it above frivolousness.
The consent decree that is the subject of this litigation established, inter alia, mandatory racial quotas for hiring and promotion within the Bibb County Sheriff‘s Department, of which intervenors are white employees. See Reeves v. Wilkes, 754 F.2d 965, 967 (11th Cir.1985). The hir
In February of 1982, two years and eight months later, intervenors sought to intervene in the implementation of the decree for the very limited purpose of triggering the closure provision of that portion of the decree which governs promotions. As this court noted in reversing the district court‘s decision to allow the officers to intervene, “they did not make a collateral attack upon the legality of the decree, nor seek to review prior promotion decisions made under the decree.” Id. at 968. Instead they simply contended “that ‘good faith’ had been established and that the remedial purpose sought to be accomplished by the provision had been served.” Id.
The majority considers it significant that this court, closely following United States v. Jefferson County, 720 F.2d 1511 (11th Cir.1983), found the intervenors to have failed to establish that their claim was timely filed. Those decisions, of course, were not available to intervenors when they decided to seek to intervene and, for that reason, are of limited usefulness in determining whether that decision was frivolous or unreasonable in light of the case law available at the time. Moreover, to the extent that such decisions are relevant to our assessment of the reasonableness of intervenors’ attempt to intervene, I would include among them our recent decision in Howard v. McLucas, 782 F.2d 956 (11th Cir.1986), wherein we recognized the difficulties inherent in applying the standard test for determining timeliness of intervention to cases like this one and allowed a group of affected white and non-black employees to intervene to challenge the promotional provisions of a consent decree nearly ten years after suit had been filed. See id. at 959-61.
The principal case on timeliness of intervention in similar suits that was available to intervenors when they decided to attempt to intervene was Stallworth v. Monsanto Co., 558 F.2d 257 (5th Cir.1977). In that case, the former Fifth Circuit set forth the four factor test for determining timeliness of intervention that was later applied in Jefferson County, Reeves and Howard v. McLucas. Although Stallworth, in allowing intervention, informed potential intervenors who would seek to upset consent decrees of the factors that would be considered significant in determining whether such intervention was timely, it hardly foreclosed as untimely the claim made by intervenors in this case.
In particular, nothing in Stallworth required the court in Reeves to apply the four factor timeliness test without regard to the limited nature of the intervention that was sought. The Reeves court applied the four factor test to require intervention even by persons who are satisfied with a consent decree as drafted and approved as soon as practicable after it appears that they might someday perceive their interests to be adversely affected by the parties’ failure to act in accordance with the terms of the decree. Where potential intervenors are satisfied with a decree, however, I would not require them to intervene immediately upon learning of the terms of the decree simply because they might someday be dissatisfied if the parties fail to enforce and abide by the terms of the decree. If potential intervenors are willing to confine their later intervention to a claim that is, in essence, a claim that their rights are being violated because the decree is not being
[A] rule making knowledge of the pendency of the litigation the critical event would be unsound because it would induce both too much and too little intervention. It would encourage individuals to seek intervention at a time when they ordinarily can possess only a small amount of information concerning the character and potential ramifications of the lawsuit, and when the probability that they will misjudge the need for intervention is correspondingly high. Often the protective step of seeking intervention will later prove to have been unnecessary, and the result will be needless prejudice to the existing parties and the would-be intervenor if his motion is granted, and purposeless appeals if the motion is denied. In either event, scarce judicial resources would be squandered, and the litigation costs of the parties would be increased. Such a rule would also mean that many individuals who excusably failed to appreciate the significance of a suit at the time it was filed would be barred from intervening to protect their interests when its importance became apparent to them later on. These effects would be inconsistent with the important purposes of Rule 24: to foster economy of judicial administration and to protect non-parties from having their interests adversely affected by litigation conducted without their participation.
These are not frivolous concerns, nor was it unreasonable of the intervenors in this case to consider it quite possible that this court would be motivated by such concerns to decide that the Stallworth test should not be applied as it was in Reeves, but instead should be applied with some sensitivity to the nature of the intervention sought. The resulting analysis still might have resulted in a denial of intervention as untimely, but the intervenors’ claim surely would not look as “frivolous,” in hindsight, as it perhaps does now when the opinion in Reeves is read without considering the possible significance of this difference between the facts of Reeves and the cases on which it relied. Although it is the law of this case that intervention should not have been allowed, I find the conclusion inescapable that intervenors’ claim to intervention in this novel case was not frivolous because untimely, and that attorney‘s fees should not be assessed against them on that ground.