Commonwealth of Pennsylvania v. Flaherty Brief for the Appellant

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT

94-3211

COMMONWEALTH OF PENNSYLVANIA, et al..
Appellants

v.
PETER F. FLAHERTY, Mayor, et al.,

Appellees
and

F.O.P. FORT PITT LODGE NO. 1,
Intervening Appellees 

and
PAUL G. CLARK, RICHARD USNER, DANIEL DULSKI and

MICHAEL BENNER,
Intervening Appellees.

APPEAL OF:
THE COMMONWEALTH OF PENNSYLVANIA

APPEAL FROM THE ORDER DATED MARCH 17, 1994, OF ̂ THE 
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF 

PENNSYLVANIA AT CIVIL ACTION NOS. 75-162, 90-457 and 90-629

BRIEF FOR THE APPELLANT, COMMONWEALTH OF PENNSYLVANIA

ERNEST D. PREATE, JR.
Attorney General

BY: THOMAS F. HALLORAN
Senior Deputy Attorney General
CALVIN R. KOONS
Senior Deputy Attorney General

JOHN G. KNORR, III
Chief Deputy Attorney General
Chief, Litigation Section

OFFICE OF ATTORNEY GENERAL 
4th Floor, Manor Complex 
564 Forbes Avenue 
Pittsburgh, PA 15219 
(412) 565-7680

Date: June 3, 1994



TABLE OF CONTENTS
Page

TABLE OF CITATIONS............................................  ii
STATEMENT OF JURSI DICTION....................................  1
STATEMENT OF ISSUE PRESENTED FOR REVIEW......................  2
STATEMENT OF THE CASE........................................  3
STATEMENT OF THE FACTS.......................................  4
STATEMENT OF RELATED CASES AND PROCEEDINGS................... 9
STATEMENT OF THE STANDARD OR SCOPE OF REVIEW................. 10
ARGUMENT:

I. THE DISTRICT COURT ERRED IN HOLDING 
THAT THE COMMONWEALTH OF 
PENNSYLVANIA A CIVIL RIGHTS 
PLAINTIFF DEFENDING AN INJUNCTION 
ENTERED BY THE DISTRICT COURT TO 
ALLOW WOMEN AND AFRICAN AMERICANS TO 
BE PITTSBURGH POLICE OFFICERS,
SHOULD BE LIABLE FOR 75% OF THE 
INTERVENING DEFENDANTS' ATTORNEYS 
FEES WITHOUT FINDING THAT THE 
COMMONWEALTH'S ACTION WAS FRIVOLOUS,
UNREASONABLE OR WITHOUT FOUNDATION...........  10

II. THE DISTRICT COURT ERRED IN HOLDING 
THE COMMONWEALTH OF PENNSYLVANIA 
LIABLE FOR ATTORNEYS FEES OF THE 
INTERVENING DEFENDANTS PURSUANT TO
FED.R.CIV.P. 41(b)..........................  16

CONCLUSION....................................................  19
OPINIONS OF THE DISTRICT COURT - September 9, 19 91.....

- December 16, 1991.....
- August 23, 1993.......
- March 17, 1994........

CERTIFICATE OF ADMISSION TO THE BAR OF THE THIRD CIRCUIT 
CERTIFICATE OF SERVICE

1

<! CQ U
 Q



TABLE OF CITATIONS
Page

Cases:
Baum v. Masloff,

C.A. No. 90-60 (W.D. Pa)...............................  9
Christiansburq Garment Co. v. EEOC,

434 U.S. 412 (1978)........................10,11,12,14,15,16
Commonwealth v. Flaherty,

983 F . 2d 1267 (1993)............................ 8,9,10,15,16
Commonwealth v. Flaherty,

404 F. Supp. 1022 (W.D. Pa. 1975)......................  4
Commonwealth v. Flaherty,

760 F.Supp. 472 (W.D. Pa. 1991)........................  6,7
Hayman Cash Register Co. v. Sarokin,

669 F . 2d 165 (1982)....................................  17
Newman v. Piqqie Park Enterprises, Inc.,

308 U.S. 400 (1968)....................................  11
Poulis v. State Farm Fire & Gas Co.,

747 F . 2d 868-69 (3d Cir. 1984).........................  18
Slater v. City of Pittsburgh,

C.A. No. 90-457 (W.D. Pa.).............................  9
Swietlowich v. County of Bucks.

610 F . 2d 1164 (3d Cir. 1979 ).....................1 ....  18
Washington v. Davis.

426 U.S. 229 (1976 )....................................  4,5
Statutes;
28 U.S.C. § 1291................
28 U.S.C. § 1331................
28 U.S.C. § 1343 ...............
42 U.S.C. § 1988.......... .....
Rules:
Fed.R.Civ.P. 41(b) 2,3,8,16,17,18

ii



STATEMENT OF JURISDICTION

This is an appeal from a final judgment over which this 
Court has jurisdiction pursuant to 28 U.S.C. § 1291. The 
jurisdiction of the district court was based upon 28 U.S.C. §§ 1331 
and 1343. The District entered the Order quantifying an award of 
attorneys fees against the Commonwealth of Pennsylvania plaintiffs 
in this civil rights action and in favor of the intervening 
defendants on March 17, 1994. The notice of appeal was filed on 
April 15, 1994.

1



STATEMENT OF ISSUES PRESENTED FOR REVIEW

I. WHETHER THE DISTRICT COURT ERRED IN HOLDING 
THAT THE COMMONWEALTH OF PENNSYLVANIA, A CIVIL 
RIGHTS PLAINTIFF DEFENDING AN INJUNCTION 
ENTERED BY THE DISTRICT COURT TO ALLOW WOMEN 
AND AFRICAN AMERICANS TO BE PITTSBURGH POLICE 
OFFICERS, SHOULD BE LIABLE FOR 75% OF THE 
INTERVENING DEFENDANTS' ATTORNEYS FEES WITHOUT 
FINDING THAT THE COMMONWEALTH'S ACTION WAS 
FRIVOLOUS, UNREASONABLE OR WITHOUT FOUNDATION?

The issue was framed by the intervening defendants' 
Motion for Award of Attorneys Fees and the Commonwealth's 
responses. (A - 238, 270, 326, 331). The district court granted 
the motions. (Opinions dated September 9, 1991), and denied 
subsequent motions to alter or amend or for reconsideration. 
(Opinions dated December 16, 1991 and August 23, 1993). Fees were 
quantified by order of March 17, 1994 (Opinion dated March 17, 
1994). The standard of review is whether or not the district court 
applied correct legal precepts in reaching the conclusion that the 
Commonwealth of Pennsylvania, a civil rights plaintiff, should be 
liable for attorneys fees and costs under 42 U.S.C. § 1988.

II. WHETHER THE DISTRICT COURT ERRED IN HOLDING 
THE COMMONWEALTH OF PENNSYLVANIA LIABLE 75% OF 
THE ATTORNEYS FEES OF THE INTERVENING 
DEFENDANTS PURSUANT TO FED.R.CIV.P. 41(b) AS 
AN ALTERNATIVE TO DISMISSAL AFTER THE DISTRICT 
COURT DENIED THE MOTION TO DISMISS FOR FAILURE 
TO PROSECUTE AND THAT DECISION WAS AFFIRMED B.Y 
THIS COURT?
This issue was presented to the district court in the 

intervening defendants' Motion to Dismiss for Failure to Prosecute 
(A - 234), which was denied. (Opinion dated September 9, 1991). 
In an opinion addressing the Motion for Reconsideration of the 
Commonwealth regarding the award of attorneys fees against it, the 
district court relied upon Fed.R.Civ.P. 41(b). (Opinion dated 
August 23, 1993). The standard of review is whether or not the 
district court applied correct legal precepts in holding the 
Commonwealth liable for attorneys fees as a sanction under 
Fed.R.Civ.P. 41(b).

2



STATEMENT OF THE CASE
The appellant herein and one of the plaintiffs below is 

the Commonwealth of Pennsylvania. Appellees are the intervening 
defendants below, four white male applicants for the Pittsburgh 
Police Department.1 This is the Commonwealth's appeal from the 
March 17, 1994 order of the district court quantifying an award of 
attorneys fees in favor of the four white males and the orders 
establishing that liability. (Copies of the Orders dated September 
9, 1991, December 16, 1991, August 23, 1993, and March 17, 1994 are 
attached).

This case, now in its last stage, evolves from the 
district court's order dissolving its 1975 preliminary injunction 
that altered the way the City of Pittsburgh hired its police 
officers. The question presented by this appeal is whether the 
district court's decision to impose attorneys fees against the 
Commonwealth of Pennsylvania, the plaintiff in this action was 
correct. The district court awarded fees pursuant to § 1988 of the 
Civil Rights Act, 42 U.S.C. § 1988, but did not find”*the action 
frivolous, unreasonable or without foundation. It also held that 
fees were an appropriate sanction under Fed.R.Civ.P. 41(b) as an 
alternative to dismissal although the motion to dismiss had 
previously been denied. *

Additional plaintiffs in the district court included the 
National Association for the Advancement of Colored People, the 
Guardians of Greater Pittsburgh, and the National Organization of 
Women. They were not ordered to pay any attorney fees. Additional 
defendants below include the City of Pittsburgh and its officials, 
and the Fraternal Order of Police, also an intervening defendant.

3



STATEMENT OF FACTS
A. 1975 Injunction - Flaherty I

In 1975 an injunction was issued by the district court 
based upon its finding that the hiring practices of the Pittsburgh 
Police Department violated §§ 19 81 and 19 83 of the Federal Civil 
Rights Act, 42 U.S.C. § 1981 and § 19 83, and the thirteenth and 
fourteenth amendments. See Commonwealth of Pennsylvania v. 
Flaherty, 404 F.Supp. 1022 (W.D. Pa. 1975) ("Flaherty I").

One of the plaintiffs and parties moving for the 
injunction was the Commonwealth of Pennsylvania. After hearing, 
the district court in Flaherty I found that the City had virtually 
eliminated the hiring of African Americans and women as police 
officers. The district court required the City, for every white 
male hired, to hire one white female, one black female, and one 
black male.

The City did not appeal the preliminary injunction order. 
However, over the years the order withstood challenges from 
applicants to the police force and the Fraternal Order of Police. 
In 1977, the Fraternal Order of Police (FOP), an intervening 
defendant, moved to dissolve the injunction relying on the Supreme 
Court's 1976 in Washington v. Davis, 426 U.S. 229 (1976). The 
district court denied the motion to dissolve the preliminary 
injunction based upon Washington v. Davis because the FOP did not 
have standing. No appeal was taken. (A - 93 through 100).

4



The injunction withstood another challenge in 1984 when 
a white male who had continously applied for a position as a 
Pittsburgh Police Officer since 1975 moved to intervene in this 
action to challenge the injunction. The district court denied the 
motion, finding it was untimely, failed to allege changes in 
circumstances or law which effected the basis of the original 
order, and that the intervening defendant had failed to advance any 
argument that had not been thoroughly presented and considered 
before entry of the original order. The district court also 
observed that when it granted the preliminary injunction in 1975, 
it had recognized that although it was only affording interim 
relief, the remedy would require a long period of time because of 
the small number of vacancies that ocur in the police department. 
The district court also noted that the motion to intervene failed 
to allege that the disproportion, which was a result of past 
discriminatory hiring practices, had ended. (A - 101 through 113).

This Court affirmed the decision of the district court. 
(No. 84-3639). Mulvey filed a petition for writ of certiorari to 
the United States Supreme Court at No. 85-136, referring to 
Washington v. Davis as a change in the law supporting the 
injunction's dissolution. The Supreme Court denied the petition.

5



B. 1991 - Dissolution of the Injunction - Flaherty II
Commonwealth v. Flaherty, 760 F.Supp. 472 (W.D. Pa. 1991)

In 1990, Paul G. Clark, Richard Usner, Michael Benner and 
Daniel Dulski, white male applicants and intervening appellees, 
filed two separate complaints against the City of Pittsburgh and 
its officials challenging the hiring system imposed by the 
preliminary injunction. (A - 114, 119). The four applicants also 
moved to intervene in this 1975 action. Their motions were 
granted. (A - 143, 154, 161, 168, 178). The two separate lawsuits 
were consolidated with this 1975 action.

By order dated March 20, 1991, the district court granted 
the intervening defendants' motion to dissolve the injunction.2 
Prior to that decision, the district court noted that "We no longer 
have the original presiding judge with us, and we just had a 
preliminary injunction that was treated by everybody as the law." 
That is, as a permanent injunction. (A - 806, 831). Ruling on the 
motion to dissolve the injunction, the district court noted that 
although it had before it the Commonwealth's "persuasive case that 
reliance on examination scores as the primary factor in hiring will 
favor whites and males over minorities and women," Flaherty II, 
760 F.Supp. at 488, and evidence which supported its finding that

2The Honorable Gerald Weber issued the original injunction in 
1975. After Judge Weber's death, the case was transferred to the 
Honorable Maurice B. Cohill, Jr., Chief Judge of the united States 
District Court for the Western District of Pennsylvania, who 
presided over the hearing and entered the decision and order 
dissolving the injunction, as well as the order entering partial 
summary judgment and attorney fees. The subject of this appeal is 
the award of attorneys fees.

6



there was "no doubt that should the injunction be dissolved, it
will have an [adverse] impact on the hiring of blacks and women."
(Id.]. The court also found, "[i]f the preliminary injunction is
dissolved, the most likely result will be most police officers
hired will be white males, a few will be black males, and very few
will be women." Flaherty II, 760 F.Supp. at 480. The Commonwealth
appealed the dissolution of the injunction to this Court at No. 91-
3303. That appeal was dismissed as moot because the district court
granted the intervening defendants' Motion for Partial Summary
Judgment while the appeal was pending.
C. The September 9, 1991 Entry of Partial Summary 

Judgment and Attorney Fee Award_______________
On September 9, 1991, the district court granted partial 

summary judgment in favor of the intervening defendants and the 
City on the claim of discrimination in the hiring of police 
officers and denied the intervening defendants' motion to dismiss 
for failure to prosecute. The summary judgment granted was only 
partial because it related only to the portion of ^litigation 
relating to the hiring of police officers and did not effect the 
portion of the case relating to police officer promotions. The 
district court also granted the intervening defendants' petitions 
for attorney 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. 
The district court concluded that the parties should be realigned 
so that the intervening defendants should be treated as plaintiffs 
and the plaintiff Commonwealth of Pennsylvania and the defendant

7



City of Pittsburgh should be treated as defendants for the purposes 

of awarding fees under 42 U.S.C. § 1988. (Opinion dated September 

9, 1991).
On appeal, both the granting of summary judgment and 

denial of the motion to dismiss for failure to prosecute were 
affirmed. The appeal of attorneys fees award was dismissed because 
it had not been quantified and was therefore not a final order. 
Commonwealth v. Flaherty, 983 F.2d 1267 (1993).

D . 1993 Denial of the Commonwealth's Motion for Reconsideration
On remand, the Commonwealth moved for reconsideration of 

the district court's order granting fees. Although the district 
court "granted" the motion for reconsideration,3 it did so merely 
to reaffirm its order of attorneys fees against plaintiff 
Commonwealth on the basis of 42 U.S.C. § 1988 and added reliance 
upon Fed.R.Civ.P. 41(b). (A - 388 and Opinion dated August 23,
1993) . Subsequently, the attorneys fees requested by the
intervening defendants were quantified at a total of "$80,000.00, 
the Commonwealth to pay $60,000.00. (Opinion dated March 18,
1994) . This appeal followed.

3An interlocutory appeal at No. 93-8084 was requested. The 
request was denied on October 13, 1993.

8



STATEMENT OF RELATED CASES AND PROCEEDINGS

Counsel for appellant is unaware of any case presently on 
appeal or about to be presented that involves the same or similar 
issues as those raised in this appeal. This case has previously 
been appealed at Court of Appeals Nos. 79-2706, 82-5629, 83-5570, 
84-3095, 84-3639, 91-3303 (dismissed as moot), 92-3031, and 93-8084 
(Petition for Allowance of Appeal denied). The only reported 
decision on appeal was at No. 92-3031, 983 F.2d 1267 (3d Cir. 

1993) .
Two cases Slater v. City of Pittsburgh, C.A. No. 90-457 

(W.D. Pa.) and Boehm v. Masloff, C.A. No. 90-69 (W.D. Pa.) were 
consolidated with Commonwealth v. Flaherty, C.A. No. 75-162 (W.D. 
Pa.). Prior to consolidation, however, this Court heard an appeal 
at No. 90-3411, affirming the district court's dismissal of Michael 
Slater as an intervening defendant for lack of standing. The 
Commonwealth was not a party to C.A. Nos. 90-457 and 90-629.

9



ARGUMENT
I. THE DISTRICT COURT ERRED IN HOLDING 

THAT THE COMMONWEALTH OF 
PENNSYLVANIA, A CIVIL RIGHTS 
PLAINTIFF PROTECTING THE RIGHTS OF 
AFRICAN AMERICANS AND WOMEN TO BE 
PITTSBURH POLICE OFFICERS, SHOULD BE 
LIABLE FOR 75% OF THE INTERVENING 
DEFENDANTS' ATTORNEYS FEES WITHOUT 
FINDING THAT THE COMMONWEALTH'S 
ACTION WAS FRIVOLOUS, UNREASONABLE 
OR WITHOUT FOUNDATION.

In a decision which this Court has characterized as 
"highly unusual" (983 F.2d at 1275) and which the district court 
has itself characterized as "perhaps unprecedented" (Opinion dated 
August 23, 1990, p. 7) the district court imposed attorneys fees 
against the Commonwealth, the plaintiff in a civil rights action 
brought to vindicate the rights of women and African Americans. 
The district court did not find that the Commonwealth had brought 
a frivolous action, but rather that fees were appropriate because 
it failed to take action to dissolve what had become a "legally 
guestionable" preliminary injunction which had sixteen years 
earlier been entered in its favor. The court's holding is in 
direct conflict with decision in Christiansburg Garment Co. v. 
EEOC, 434 U.S. 412 (1978) in which the court cautioned that "post 
hoc reasoning" and "hindsight logic" should not be used to award 
fees against a civil rights plaintiff unless the lawsuit filed is 
found to have been unreasonable or without foundation. Id. at 420. 
The district court did not and could not have made such a finding 
and its judgment must now be reversed.

In relevant part, 42 U.S.C. § 1988 provides that "in any

10



action or proceeding to enforce the provisions of §§ 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 attorneys' fee as part of the cost." Newman v. 
Piqqie Park Enterprises, Inc., 308 U.S. 400 (1968). Although § 
1988 does not expressly distinguish between plaintiff or defendant, 
but rather speaks in terms only of the "prevailing party" the 
court, in Christiansburq, 434 U.S. at 419, clearly established the 
rule that a defendant is not entitled to the same accomodation as 
a prevailing civil rights plaintiff with regard to the award of 
attorney fees. For example, in Christiansburq, the Court stated, 
"'these policy considerations which support the award of fees to a 
prevailing plaintiff are not present in the case of a prevailing 
defendant.'" 434 U.S. at 419 (quoting Christiansburq, at 550 F .2d 
949, 951 (4th Cir. 1977) .

The Christiansburq rule was developed to favor the 
plaintiff in a civil rights action over the defendant because it is 
the defendant who is the identified violator of federal "law and who 
therefore should bear the responsibility for the plaintiff's 
attorney fees when the plaintiff prevails. However, the opposite 
is not true. A prevailing defendant cannot suggest that the 
plaintiff stands before the court as the violator of federal law, 
and, therefore, attorney fees are awarded to the defendant only 
"upon a finding that the plaintiff's action was frivolous, 
unreasonable or without foundation, even though not brought in 
subjective bad faith." Id. 434 U.S. at 421. In passing § 1988,

11



Congress cannot have meant to discourage actions brought on behalf 

of minorities, as this action was.
The district court's award of attorneys fees to 

intervening defendants pursuant to 42 U.S.C. § 1988 evolved from 
its stance that the Commonwealth was no longer the plaintiff in 
this action, but rather "took on the characteristics of a civil 
rights defendant for purposes of imposing attorney fees." Opinion 
dated Sept. 9, 1991, at p. 15. The district court also
rationalized the award of attorney fees by virtue of the City and 
the Commonwealth's role "in creating a need for litigation to 
overturn a legally unjustifiable injunction." Id. at p. 16 The 
district court acknowledged that . . . "Requiring the original
plaintiff in a civil rights action to pay a portion of the 
Intervenors' attorney fees is, perhaps, unprecedented." Opinion 
dated August 23, 1993 at p. 7.

This is a legally insufficient basis to warrant the award 
of attorney fees against a plaintiff. The Commonwealth initially 

prevailed and continued to protect the rights of African Americans 
and women from unlawful discrimination through what the district 
court itself noted was a persuasive case. The question which the 
district court was compelled to decide was not whether the 
Commonwealth's position was ultimately successful, but, rather, 
whether the lawsuit met the criteria of the Christiansburg rule for 
an award of fees against a plaintiff. In Christiansburg the Court 

noted:

12



In applying these criteria, it is important 
that a district court resist the 
understandable temptation to engage in post 
hoc reasoning by concluding that, because a 
plaintiff did not ultimately prevail, his 
action must have been unreasonable or without 
foundation. This kind of hindsight logic 
could discourage all but the most airtight 
claims, for seldom can a prospective plaintiff 
be sure of ultimate success. No matter how 
honest one's belief that he has been the 
victim of discrimination, no matter how 
meritorious one's claim may appear at the 
outset, the course of litigation is rarely 
predictable. Decisive facts may not emerge 
until discovery or trial. The law may change 
or clarify in the midst of litigation.

434 U.S. at 420.
Indeed, in the Brenner and Dulski fee petition, 

particularly at paragraphs 16 and 18, those intervening defendants 
asserted a claim for a contingency multiplier because they were 
seeking to challenge a preliminary injunction that had been in 
place for fifteen years, had not yet resulted in a perfectly 
balanced police force, and essentially enjoined the use of the 
City's written examination which continued to have some 
differential impact across racial and gender groups. "(A - 243). 
They further indicated that numerous litigants had attempted to 
achieve the results achieved in this case during the past fifteen 
years and failed. These representations simply do not establish 
the foundation of maintaining any claim that could be construed as 
frivolous or unreasonable. These parargraphs also seem to concede 
that it was the Commonwealth in this case who was seeking to 
enforce a federal law by eliminating the differential impact across 
racial and gender lines caused by the City's written examination

13



and also, a balanced police force to remedy the vestiges of past 
discrimination.

In this case, the Commonwealth vindicated the 
constitutional rights of both African Americans and women and 
sought to protect against continuing racial and sex discrimination 
in the hiring of City police officers. The district court's 
observation that the Commonwealth took on the characteristics of a 
civil rights defendant and created a need for litigation by 
defending the injunction it obtained flies directly in the face of 
both § 19 88 and the Christiansburq rule. The terms of § 19 88 
provide that fees may be awarded to the prevailing party in an 
action or proceeding to enforce the provisions of § 1981, 1982, 
1983, 1985 and 1986 of this title. 42 U.S.C. § 1988. In this 
case, in the district court (No. 75-162) it was only the 
Commonwealth who initiated an action or proceeding to enforce those 
provisions. After that enforcement action, the Commonwealth 
obtained an injunction and from that point forward defended the 
injunction through various court proceedings that continuously 
affirmed the propriety of that injunction. The intervening 
defendants were plaintiffs only in civil rights actions to which 
the Commonwealth of Pennsylvania was not a party, Nos. 90-457 and 
90-629.

This Court's review of the grant of summary judgment 
against the Commonwealth and other plaintiffs demonstrates that the 
Christiansburq rule for awarding attorneys fees against a plaintiff 
has not been met. The court opined that "it is undisputed that

14



dissolution of the preliminary injunction and denial of a permanent 
injunction would almost certainly result in a return to white males 
predominating on the police force, notwithstanding the City's 
vigorous recruitment efforts aimed at minorities and women. 983 
F . 2d at 127 2. This Court's conclusion was simply that the 
Commonwealth has not met its burden of showing intentional 
discrimination and the City's hiring procedures therefore cannot be 
said to violate the Constitution. Id. at 1275. This determination 
is not the foundation for an award of attorneys fees against a 
civil rights plaintiff.

In light of this Court's observation that the award of 
attorneys fees against the Commonwealth, a civil rights plaintiff, 
was "highly unusual" (983 F .2d at 1275) the Commonwealth filed a 
motion for reconsideration. In denying that motion, the district 
court acknowledged there is simply no precedent cited to justify an 
award of attorneys fees against the Commonwealth under § 1988. See 
Opinion dated August 23, 1993 at p. 7. This decision is contrary 
to the terms of § 1988 and the controlling Christiansburq rule. 
This decision evidences a district court not only failing to resist 
the temptation to engage in post hoc reasoning by concluding that 
because a plaintiff did not prevail his action must have been 
unreasonable or without foundation, but a district court applying 
that standard against a plaintiff who in fact has prevailed, 
obtained an injunction, and defended that injunction successfully 
in appeals to this Court and the United States Supreme Court.

15



Christiansburg, 434 U.S. at 420. Accordingly, the award of
attorneys fees to the intervening defendants should be reversed.

II. THE DISTRICT COURT ERRED IN HOLDING 
THE COMMONWEALTH OF PENNSYLVANIA 
LIABLE FOR ATTORNEYS FEES OF THE 
INTERVENING DEFENDANTS PURSUANT TO 
FED.R.CIV.P. 41(b)

Initially, there is nothing in the language of 
Fed.R.Civ.P. 41(b) that provides an award of attorneys fees as "an 
appropriate alternative to dismissing this case." (Opinion dated 
August 23, 1993 at p. 7). It is the Commonwealth's position that 
Rull 41(b) simply does not provide for an award of attorneys fees 
against a civil rights plaintiff as was ordered by the district 
court.

The sole basis of the district court's opinion of 
September 9, 1991 as it relates to attorneys fees was its
application of § 1988. In that opinion the motion to dismiss for
failure to prosecute was denied and the motion for summary judgment 
was granted. Further, in its opinion of December 16, 1991 the
district court simply reaffirmed its position with regard to
plaintiff Commonwealth's attorneys fees liability under § 1988. 
This Court affirmed the grant of summary judgment and the denial of 
the motion to dismiss for failure to prosecute and commented on the 
highly unusual action of the district court holding the 
Commonwealth liable for fees before dismissing that portion of the 
appeal. 983 F.2d 1267, 1275 (3d Cir. 1993).

16



The Commonwealth then filed a motion for reconsideration
based upon this Court's characterization of the Commonwealth's fee 
liability. In effectively denying the motion for reconsideration, 
the district court affirmed its decision awarding attorneys fees 
pursuant to § 1988 against the plaintiff Commonwealth and indicated 
that it was relying upon Rule 42 (sic 41)(b) as an alternative to 
the drastic action of dismissal of the case for failure to 
prosecute. Opinion dated August 23, 1994 at p. 6. This order was 
entered after this Court affirmed the denial of the motion to 
dismiss for failure to prosecute. The Commonwealth contends that, 
because this Court had affirmed the denial of the motion to dismiss 
for failure to prosecute, the district court could not subsequently 
rely upon Rule 41(b) to impose the sanction of attorneys fees 
against the Commonwealth as an alternative to dismissal.

The law of the case doctrine is that once an issue is 
decided, it will not be relitigated in the same case, except in 
unusual circumstances. Havman Cash Register Co. v. Sarokin, 669 
F . 2d 162, 165 (1982). Havman arose in a dispute between judges and 
different district courts regarding personal jurisidiction and 
venue. In this case, the district court denied the motion to 
dismiss for failure to prosecute and this Court affirmed. This 
occurred prior to the district court's order of August 23, 1993 in 
which the district court directly invoked Rule 41(b). Although the 
doctrine of law of the case does not preclude the district court 
from clarifying or correcting an earlier ambiguous ruling, the 
record is clear that the district court denied the motion to

17



dismiss for failure to prosecute and the record is clear that this 
Court affirmed that decision. See Swietlowich v. County of Bucks, 
610 F.2d 1157, 1164 (3d Cir. 1979 ). The September 9, 1991 decision 
of the district court awarding attorneys fees that the court relies 
upon § 1988.

Assuming arguendo, that the district court could have 
assessed attorneys fees as an alternative sanction to dismissal 
under Rule 41(b) after it denied that motion, the district court 
would still be required to comply with the requirements for the 
imposition of such a sanction.

The district court did not apply the factors required for 

sanctions. See Poulis v. State Farm Fire & Cas. Co., 747 F .2d 863, 
868-69 (3d Cir. 1984). Further, under the facts of this case there 
is no basis under which such an award would have been authorized. 
The Commonwealth complied with all orders of court and presented a 
case in defense of the injunction that the district court itself 
found to be "persuasive" . There is no consistent violation of time 
limits imposed by the court. There is no bad faith. The 
determination that the Commonwealth was liable for fees is more 
than an abuse of discretion, it is an error of law.

For the above reasons, the order of the district court 
relying upon Rule 41(b) to award attorneys fees against the 
Commonwealth should be reversed.

18



CONCLUSION
For the foregoing reasons the decision of the district 

court awarding attorneys fees against the Commonwealth of 
Pennsylvania and in favor of the intervening defendants should be 

reversed.

Respectfully submitted,

ERNEST D. PREATE, JR. 
Attorney General

BY:
THOMAS F. HALLORAN
Senior Deputy Attorney General
CALVIN R. KOONS
Senior Deputuy Attorney General
JOHN G. KNORR, III
Chief Deputy Attorney General
Chief, Litigation Section

OFFICE OF ATTORNEY GENERAL 
4TH Floor, Manor Complex 
564 Forbes Avenue 
Pittsburgh, PA 15219

Date: June 3, 1994

19



IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA; 
GUARDIAN OF GREATER PITTSBURGH 
INC.; N .A .A .C.P.; N . O . W . ; 
et al.,

Plaintiffs, 
v.

PETER F. FLAHERTY, Mayor, 
et al.,

Defendants. 
and

F.O.P. for FORT PITT LODGE 
No. 1,

Intervening Defendant.

MICHAEL C. SLATER,
Plaintiff,
v .

CITY OF PITTSBURGH, 
a municipal corporation, 

Defendant.

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

Plaintiffs,
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,

Defendants.

) •
)
)
)) CIVIL ACTION NO. 75-162 
)
)
)
)
)
)
)
)
)
)
)
)

)
)
)) CIVIL ACTION NO. 90-457
)
)
)
)

)
)
)
)
)
)) CIVIL ACTION NO. 90-629
)
)
)
)
)
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)
)

A



OPINION
COHILL, Chief Judge.

Intervenors in Commonwealth v. Flaherty successfully 
obtained dissolution of a preliminary injunction requiring race- 
and gender-based quota hiring in the Pittsburgh police department. 
The Commonwealth of Pennsylvania has appealed that ruling. 
Intervenors have now moved for an award of attorney's fees, and 
also for dismissal for failure to prosecute, or in the alternative, 
for summary judgment.

Commonwealth moved to stay consideration of these 
motions pending the outcome of its appeal of our decision 
dissolving the preliminary injunction. For reasons we explain more 
fully below, we denied the motion for stay and scheduled a hearing 
for July 24, 1991. Upon agreement of counsel, this hearing
considered only the legal issues presented by the pending motions. 
Discovery concerning factual issues was deferred pending our ruling 
on the legal issues.

For the following reasons, we will grant the 
intervenors' motion for summary judgment and rule that intervenors 
may recover attorney's fees from the City and Commonwealth in an 
amount to be determined. I.

I. Motion for Stay
An appeal normally divests the district court of 

jurisdiction to take further action in the case pending the outcome 
of the appeal. Griggs v. Provident Consumer Discount Co. . 459 U.S.

2



56 (1982) (per curiam). But "in an appeal from an order granting 
or denying a preliminary injunction, a district court may 
nevertheless proceed to determine the action on the merits." 
United States v. Price, 688 F.2d 204, 215 (3d Cir. 1982). Since 
our March 20, 1991 Order in this case amounted to the denial of a 
preliminary injunction, we believe it is appropriate to move ahead 
to consideration of the motions for dismissal and for summary 
judgment.

As for the petition for attorney fees, the United States
Supreme Court has held that such a petition presents an issue
"uniquely separable" from a decision on the merits. White v. New
Hampshire Deo11 of Employment Sec., 455 U.S. 445, 451-52 (1982).
The Court made it clear that a district court may consider a fee
petition even when a decision on the merits has been appealed. Id.
at 454. In deciding whether to entertain a fee application after
an appeal has been taken, the district court must balance "the
inconvenience and costs of piecemeal review on the one hand and the
danger of denying justice by delay on the other." West v. Keve,
721 F. 2d 91, 95 (3d Cir. 1983). In this case, we believe
consideration of the legal issue of entitlement to attorney's fees
serves the policy of judicial efficiency described by the United
States Court of Appeals for the Third Circuit:

Rather than misusing scarce resources, timely filing and 
disposition of [certain post-judgment] motions should 
conserve judicial energies. In the district court, 
resolution of the issue before the inevitable delay of 
the appellate process will be more efficient because of 
current familiarity with the matter. Similarly, 
concurrent consideration of [separately appealed issues] 
avoids the invariable demand on two separate appellate

3



panels to acquaint themselves with the underlying facts 
and the parties' respective legal positions.
Mary Ann Pensiero, Inc, v. Lingle. 847 F.2d 90, 99 (3d 
Cir. 1988) (involving a post-appeal motion for Rule 11 
sanctions).
A determination of appropriate fee awards, however, will 

require the parties to conduct discovery and the court to engage 
in detailed evaluation of fee petitions. This effort would be 
wasted if the appeals court were to reverse on the merits. In 
addition,

[a] petition for statutory counsel fees routinely 
requests payment for relevant services performed during 
the whole course of the litigation. There is, thus, 
good reason to wait until the lawsuit has been concluded 
before calculating the proper fee amount. The 
computation of attorney's fees in this context is 
frequently a detailed and prolonged undertaking, 
requiring thorough review by the trial judge and a 
sometimes lengthy hearing.
Id. at 98-99.
We conclude that the interest of judicial economy is 

best served by deciding the legal issue of entitlement to fees at 
this time (thus facilitating a unitary appeal), while deferring 
factual findings on fee amounts until after the merits of the case 
have been resolved on appeal. II.

II. Motion to Dismiss for Failure to Prosecute
Intervenors have moved to dismiss this action for 

failure to prosecute, or alternatively, for summary judgment. We 
will consider the issue of summary judgment in the next section.

Federal Rule of Civil Procedure 41(b) provides that 
"[f]or failure of the plaintiff to prosecute or to comply with

4



these rules or any order of court, a defendant may move for 
dismissal of an action or of any claim against the defendant." The 
United States Court of Appeals for the Third Circuit has warned 
that

dismissal in this context is a drastic tool and may be 
appropriately invoked only after careful analysis of 
several factors, including,

(1) the extent of the party's personal 
responsibility; (2) the prejudice to the adversary 
caused by the failure to meet the scheduling 
orders and respond to discovery; (3) a history of 
dilatoriness; (4) whether the conduct of the party 
or the attorney was willful or in bad faith; (5) 
the effectiveness of sanctions other than 
dismissal, which entails an analysis of 
alternative sanctions; and (6) the meritoriousness 
of the claim or defense.

Dunbar v. Triangle Lumber and Supply Co., 816 F.2d 126, 
128 (3d Cir. 1987) (quoting Poulis v. State Farm Fire 
and Casualty Co. . 747 F.2d 863, 868 (3d Cir. 1984) 
(emphasis omitted).
The basis for the Intervenors1 motion is their 

contention that once Judge Weber entered a preliminary injunction 
in this action, the plaintiffs, satisfied with their victory, never 
moved for a full hearing on the merits or pushed -the Court to 
scrutinize the City's attempts to validate its hiring procedures 
despite numerous opportunities to do so. They further allege that 
the City, content to have the Court dictate its hiring procedures, 
never appealed the ruling or sought release from the injunction. 
Indeed, as the Intervenors point out, both parties opposed the 
intervention of parties seeking to dissolve the injunction. 
Intervenors submit that both the plaintiffs and the City knew, or 
should have known, that this unspoken arrangement was contrary to 
changes in relevant case law, and served to deny intervenors a fair

5



opportunity to seek employment as police officers, free from race 
or sex discrimination.

The Commonwealth argues that dismissal would hardly be 
appropriate where, as here, the court docket shows activity in this 
case for nearly every year since its inception. An examination of 
the docket, however, reveals that most of this activity concerned 
defense of the injunction from attack, or was related to an aspect 
of the case other than hiring. There is no indication that 
plaintiffs ever sought further discovery relating to intentional 
discrimination or petitioned the Court for a permanent injunction.

Plaintiffs argue further that the preliminary injunction 
required the City to validate its hiring procedures, and that the 
City has yet to accomplish that directive satisfactorily.

While intervenors1 arguments are not without merit, we 
believe dismissal for failure to prosecute would be inappropriate 
in this situation. The intervenors suggest that the plaintiffs 
should have kept abreast of changes in civil rights law, 
anticipated the possible effect these changes could have in 
undermining the legal underpinnings of the preliminary injunction, 
and comprehended the effect the injunction was having on third 
parties. While such action would have been admirable on 
plaintiffs' part, we cannot say that their failure to petition the 
Court for further action or for a permanent injunction was so 
willful or in such bad faith as to justify dismissal.

In addition, Dunbar requires the Court to consider 
alternatives to the sanction of dismissal. We will discuss the

6



impact of the City's and Commonwealth's respective roles in this 
litigation as part of our consideration of attorney's fees. The 
merits of this action will be considered in the next section, 
dealing with summary judgment.

Ill. Summary Judgment
Intervenors, as the moving party, bear the burden of 

showing that they are entitled to summary judgment. This burden 
"may be discharged by 'showing'— that is, pointing out to the 
district court— that there is an absence of evidence to support the 
nonmoving party's case." Celotex Coro, v. Catrett. 477 U.S. 317, 
325 (1986); Chipollini v. Spencer Gifts. Inc.. 814 F.2d 893, 896 
(3d Cir. 1987) . In support of their motion, the Intervenors point 
out that this Court found no evidence of intentional discrimination 
sufficient to support even a preliminary injunction against the 
City of Pittsburgh. The City adds that both judges considering the 
need for a preliminary injunction took extensive amounts of 
evidence, and that if any further evidence of discrimination 
existed, it should have already been presented by the Commonwealth.

Plaintiffs argue that they should have the opportunity 
to conduct additional discovery and present their full case on the 
merits. They contend that evidence presented at the January 
hearing on the Intervenors' petition to dissolve the preliminary 
injunction raised genuine issues of material fact as to evidence 
of intentional discrimination, the validity or invalidity of the 
City's hiring procedures, and the existence of vestiges of past

7



unlawful discrimination. They submit that Chipollini warns against 
summary judgment when discriminatory intent is an issue in the 
case.

In evaluating the Commonwealth's contentions, we note 
that "[sjummary judgment procedure is properly regarded not as a 
disfavored procedural shortcut, but rather as an integral part of 
the Federal Rules as a whole, which are designed 'to secure the 
just, speedy and inexpensive determination of every action.'" 
Celotex. 477 U.S. at 327 (quoting Fed. R. Civ. P. 1). The 
Commonwealth argues that factual disputes between the parties 
remain. But "the mere existence of some alleged factual dispute 
between the parties will not defeat an otherwise properly supported 
motion for summary judgment; the requirement is that there be no 
genuine issue of material fact." Anderson v. Liberty Lobby, Inc. 
477 U.S. 242, 247-48 (1986) (emphasis in original). The 
Commonwealth must show such "sufficient evidence supporting the 
claimed factual dispute. . .to require a jury or judge to resolve 
the parties' differing version of the truth at trial." First Nat' 1 
Bank v. Cities Service Co., 391 U.S. 253, 288-89 (1968). However, 
"[i]f the evidence is merely colorable, or is not significantly 
probative, summary judgment may be granted." Anderson. 477 U.S. 
at 249-250 (citations omitted).

We believe plaintiffs have failed to meet their burden 
of showing sufficient evidence of intentional discrimination to 
require the time and expense of further evidentiary hearings. As 
we noted in our March 20, 1991 Opinion, plaintiffs brought suit

8



under the Civil Rights Act of 1866, 42 U.S.C. § 1981, not Title VII
of the Civil Rights Act of 1964 ("Title VII"). Washington v. 
Davis. 426 U.S. 229 (1976), thus requires plaintiffs to show 
intentional discrimination on the part of the City before a 
judicial remedy is appropriate. Evidence of "vestiges of past 
unlawful discrimination" and the invalidity of hiring procedures 
are relevant only insofar as they tend to support allegations of 
intentional discrimination.

Judge Weber, in his 1975 Opinion establishing the 
preliminary injunction, based his determination of race and sex 
discrimination not on a finding of intentional discrimination, but 
rather on the disparate impact of the City's hiring procedures upon 
women and minorities. Pennsylvania v. Flaherty, 404 F. Supp. 1022, 
1028-30 (W.D. Pa. 1975). When this Court examined the City's 
current hiring methods and its attitude toward the hiring of women 
and minorities, we found no evidence of intentional discrimination. 
On the contrary, testimony of City officials at our two-day hearing 
demonstrated a genuine commitment on the part of the City toward 
hiring greater numbers of qualified women and minorities, and 
concern over the practical problems the City faced in doing so. 
The Commonwealth stipulated that if the injunction were lifted, the 
City would continue to "take all reasonable and appropriate steps 
to recruit applicants for the position of police officer from all 
racial and gender groups, including specifically black and female 
applicants." Second Set of Stipulations.

9



Although this is not a Title VII case, this Court in 
January nevertheless considered a substanital amount of testimony 
about the validation of hiring procedures. We gave careful 
consideration to every allowable inference to be drawn from this 
testimony and found it showed, at most, that validation of hiring 
procedures could have been done with more statistical accuracy. 
We found no indication that the City's validation efforts were so 
insubstantial that an inference of discriminatory intent could be 
drawn. Nor did we find the testimony of the Commonwealth's 
witnesses sufficient to support an inference of intentional 
discrimination.

We fail to see what evidence plaintiffs would pursue if 
this Court were to deny summary judgment and allow further 
discovery and yet another evidentiary hearing. Do they hope to 
find some "smoking gun" contradicting the City's stated commitment 
to affirmative action and unbiased testing of recruits? Do they 
believe further examination of the City's testing procedures and 
its attempts to validate those procedures will reveal the whole 
process as a sham to cover up intentional discrimination? What 
other evidence awaits discovery that will present a genuine issue 
of past or present intentional discrimination? After 16 years, 
discovery of such evidence is unlikely, particularly after the 
"extensive stipulation of facts" and the consideration of 
"additional evidence" before Judge Weber, and this judge's 
examination of a substantial amount of evidence last January.

10



The Commonwealth suggests that summary judgment is 
inappropriate when the Court has heard evidence only in 
consideration of a preliminary injunction. While this argument 
might be effective in the early stages of a fairly new case, the 
passage of time and the amount of activity directed toward 
determining the existence of intentional discrimination make this 
argument untenable. We see no reason to allow plaintiffs to 
continue pursuing an obviously insubstantial claim.

Chipollini does not compel a different result. In that 
case, the United States Court of Appeals for the Third Circuit 
overturned a district court grant of summary judgment based on an 
absence of direct evidence of discriminatory intent. The appellate 
court held that summary judgment was inappropriate when an 
inference of discriminatory intent could be drawn from indirect 
evidence. 814 F.2d at 900-01. Evidence in the instant case, even 
when viewed in the light most favorable to the plaintiffs, "would 
be insufficient to carry the [plaintiff]1s burden of proof at 
trial." Id. at 896. See also. Healv v. New York Life Ins. Co,, 860 
F. 2d 1209, 1218-20 (3d Cir. 1988).

Partial summary judgment will therefore be entered on 
plaintiff's claim of discrimination in the hiring of police 
officers. As we noted at oral argument, the City remains under an 
unchallenged injunction governing the promotion of police officers. 
Pennsylvania v. Flaherty, 477 F. Supp. 1263 (W.D. Pa. 1979).

11



IV. Petition for Fees
As mentioned previously, we will rule on the 

Intervenors' petitions for attorney fees only as to their 
entitlement to those fees.

In an action to enforce certain civil rights provisions 
of federal law, "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." 42 U.S.C. § 1988. The 
matter of attorney's fees in this case presents an unusual legal 
question. We conclude that the Intervenors are prevailing parties, 
since they achieved their objective of dissolving a preliminary 
injunction that they claimed unfairly discriminated against white 
males. However, they seek to recover fees against a civil rights 
plaintiff who won (at least for a time) an injunction on behalf of 
women and minorities, and against a defendant that was ultimately 
found not to have intentionally discriminated on the basis of race 
or sex.

The Supreme Court has adhered to the rule that
prevailing plaintiffs and prevailing defendants receive different
treatment under the civil rights fee provision.

Prevailing plaintiffs in civil rights cases win fee 
awards unless 'special circumstances would render such 
an award unjust,' Newman v. Piqqie Park Enterprises, 
Inc., 390 U.S. 400, 402, 19 L Ed 2d 1263, 88 S Ct 964
(1968) (per curiam), but a prevailing defendant may be 
awarded counsel fees only when the plaintiff's 
underlying claim is 'frivolous, unreasonable, or 
groundless.' Christiansburcr Garment Co. v. EEOC, 434 
U.S. 412, 422, 54 L.Ed.2d 648, 98 S Ct 694 (1978).
Roadway Express. Inc, v. Piper. 447 U.S. 752, 762 
(1980) .

12



At first glance, it would appear to run counter to the 
Supreme Court's holding to award fees against a vindicated 
defendant and a plaintiff who has not brought a frivolous or 
groundless claim. But "[t]he fee provisions of the civil rights 
laws are acutely sensitive to the merits of an action and to 
antidiscrimination policy." Id. Looking beyond the party labels 
to an examination of the course this case has taken over the years 
convinces us that the Intervenors should receive a fee award under 
42 U.S.C. § 1988 since they prevailed in the position of a civil 
rights plaintiff and there are no "special circumstances [that] 
would render such an award unjust." Piggie Park. 390 U.S. at 402.

Intervenors in Commonwealth of Pennsylvania, C.A. 75- 
162, are also plaintiffs in their own actions against the City, 
Slater, et al. v. City of Pittsburgh. C.A. 90-457, and Boehm, et 
al. v. Masloff. C.A. 90-629. They are clearly "prevailing 
parties," since their objective— the dissolution of the preliminary 
injunction— has been accomplished and since they were the moving 
force behind that change. Henslev v. Eckerhart. 461 U.S. 424, 433 
(1983) ; Associated Builders & Contractors v. Orleans Parish School 
Board. 919 F.2d 374, 378 (5th Cir. 1990). The fact that they 
intervened in this action does not diminish their right to receive 
a fee award. Donnell v. United States. 682 F.2d 240 (D.C. Cir. 
1982) . Nor does the fact that intervenors are non-minorities. 
Commons v. Montgomery Ward & Co.. 614 F. Supp. 443 (D. Kan. 1985). 
Thus, intervenors should receive a fee award unless special

13



circumstances exist that would render such an award unjust. Pigqie 
Park. 390 U.S. at 402.

While the fact that the intervenors seek to recover from 
a civil rights plaintiff and a vindicated defendant is an unusual 
circumstance, we find that an award of fees in this situation would 
not be unjust. As the intervenors argued in their motion to 
dismiss for lack of prosecution, the plaintiffs and the City of 
Pittsburgh let the issue of hiring lie in a state of legal 
dormancy, even after case law undermined the support for the 
preliminary injunction, to the prejudice of third parties like the 
intervenors. Less than a year after the preliminary injunction 
took effect, the Supreme Court announced in Washington v. Davis 
that plaintiffs suing under § 1981 must show intentional
discrimination in order to invoke a court's eguitable remedial 
powers. Since Judge Weber based his injunction on the disparate 
impact of the City's hiring procedures rather than on a finding of 
intentional discrimination, the viability of the injunction after 
1976 was doubtful. Several years later, the Supreme Court 
undermined the rationale for the injunction's separate hiring lists 
for men and women. The Court ruled, contrary to Judge Weber's 
holding, that the use of veterans preferences in public employment 
hiring does not violate egual protection. Personnel Adm'r of Mass, 
v. Feeney. 442 U.S. 256 (1979). Yet the Commonwealth of
Pennsylvania, the plaintiff that has carried primary responsibility 
in prosecuting this action, never sought a final adjudication on 
the merits under the newly announced standards.

14



The Commonwealth argues that under the terms of Judge 
Weber's injunction, it was up to the City to establish properly 
validated hiring procedures and to prove it had eliminated the 
vestiges of past discrimination. But we find no indication that 
the Commonwealth ever pressed the Court to address this issue, 
despite opportunities to do so. A consulting firm hired by the 
City completed validation studies in 1977, 1983 and 1988. While 
the Commonwealth now questions these studies, it apparently made 
no effort previously to have the Court review the City's efforts 
at eliminating discriminatory practices. Intervenors argue that 
the Commonwealth, apparently content with its injunction, failed 
to move ahead with the case as it should have.

While we have found this pattern of behavior
insufficient to justify the drastic sanction of dismissal, we
believe it removes any claim that the Commonwealth's position as
plaintiff protects it from the imposition of attorney fees. By-
allowing what had become a legally questionable preliminary

•**
injunction to remain the status quo for some 16 years, to the 
detriment of third parties' civil rights, the Commonwealth took on 
the characteristics of a civil rights defendant for purposes of 
imposing attorney fees. We are not persuaded by the Commonwealth's 
reliance on Christiansburg Garment, in which the Supreme Court held 
that attorney's fees should not be imposed upon civil rights 
plaintiffs except "where the action brought is found to be 
unreasonable, frivolous, meritless or vexatious." 434 U.S. at 421.
The Supreme Court has clarified that "[t]his distinction [between

15



civil rights plaintiffs and defendants] advances the congressional 
purpose to encourage suits by victims of discrimination while 
deterring frivolous litigation." Roadway Express. 447 U.S. at 762. 
An award of fees in this situation would further the purpose of 
encouraging antidiscrimination suits without improperly 
contravening the Supreme Court's policy of protecting civil rights 
plaintiffs that lose a nonfrivolous case.

The City of Pittsburgh is not entirely blameless, 
either, in creating the set of circumstances that required 
intervenors to resort to litigation to reverse a discriminatory 
injunction. The City never appealed Judge Weber's preliminary 
injunction nor asked the Court to re-examine the validity of the 
injunction after Davis and Feeney. Intervenors suggest that the 
City and Commonwealth in effect colluded to maintain a status quo 
that placed the responsibility for dealing with sensitive race and 
gender issues with the Court, rather than with bodies accountable 
to the voters. We refrain from ascribing such motives to the City 

or Commonwealth.
Here we are concerned with effectuating the 

congressional goal of encouraging meritorious civil rights 
litigation, and the role of the City and Commonwealth in creating 
a need for litigation to overturn a legally unjustifiable 
injunction. Government bodies have a responsibility to serve the 
people fairly, and issues of race and gender discrimination call 
for responsible leadership. When a government entity, by action 
or inaction, leaves in place a hiring system that unfairly hinders

16



the civil rights of any group, the congressional purpose behind 42 
U.S.C. § 1988 justifies the imposition of attorney's fees. The 
City's compliance with court orders and its ultimate release from 
injunction do not bar the imposition of attorney's fees. 
"[L]imiting assessments to those cases where bad faith is shown 
unduly narrows the discretion granted to the district judges." 
Lieb v. Topstone Industries. Inc.. 788 F.2d 151, 155 (3d Cir. 
1986). See also. Martin v. Heckler. 773 F.2d 1145, 1150 (11th 
Cir. 1985) (holding that a defendant's "good faith, lack of 
culpability, or prompt remedial action [did] not warrant a denial 
of fees under the special circumstances preclusion.") The 
conclusion we reach today conforms to the Supreme Court's 
pronouncements that fees should be awarded so as to further 
congressional purposes behind the enactment of fee-shifting 
statutes. These include "the general policy that wrongdoers make 
whole those whom they have injured" and the policy of "deterring 
employers from engaging in discriminatory practices." Independent 
Federation of Flioht Attendants v. Zipes, 491 U.S. 754, 762 (1989).

Exercising our discretion under § 1988, we rule that the 
Commonwealth should bear 75% of the attorney's fees and the City 
25%. We find that the Commonwealth, the chief plaintiff in this 
action, bore primary responsibility to prosecute this action 
vigorously and in the interests of all racial and gender groups. 
While the City complied with court orders and made efforts to 
validate its hiring procedures, it should not have been blind to

17



changes in the law and the tendency of the preliminary injunction 
to discriminate unfairly under the law.

V. Conclusion
For the foregoing reasons, we will bring to a close a

long period of judicial supervision over the hiring of Pittsburgh 
police officers. We will grant summary judgment for the City and 
the Intervenors on the issue of police hiring, and will reguire the 
City and Commonwealth to share the Intervenors' attorney's fees. 
A determination of fee amounts, however, will be deferred until the 
court of appeals rules on the Commonwealth's pending appeal. There 
have been no recent reguests to have the Court address the City's 
actions in the area of police promotions. We will therefore direct 
the Clerk of Courts to mark this case closed. Any appropriate 
party may reopen the case, without an additional fee, upon an 
appropriate motion.

An appropriate Order will issue.

Maurice B. cohill, Jr. 
Chief Judge

18



IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA; 
GUARDIAN OF GREATER PITTSBURGH 
INC.; N .A .A .C .P.; N . O . W . ; 
et al.,

Plaintiffs, 
v.

PETER F. FLAHERTY, Mayor, 
et al.,

Defendants. 
and

F.O.P. for FORT PITT LODGE 
No. 1,

Intervening Defendant.

)
)
)
)) CIVIL ACTION NO. 75-162
)
)
)
)
)
)
)
)
)
)
)
)

MICHAEL C. SLATER,
Plaintiff,
v .

CITY OF PITTSBURGH, 
a municipal corporation, 

Defendant.

)
)
)) CIVIL ACTION NO. 90-457
)
)
)
)

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

Plaintiffs,
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,

Defendants.

)
)
)
)
)
)) CIVIL ACTION NO. 90-629 
)
)
)
)
)
)
)
)



ORDER
C5 U *:AND NOW, to-wxt, this 7 day of September, 1991, in 

accordance with the foregoing Opinion, it is ORDERED, ADJUDGED, and 
DECREED that:

1. Intervenors' motions to dismiss for failure to 
prosecute be and hereby are DENIED.

2. Intervenors' motions for summary judgment be and 
hereby are GRANTED. Summary judgment be and hereby is entered 
against the plaintiffs on the issue of police hiring procedures 
only.

3. The Commonwealth of Pennsylvania and the City of 
Pittsburgh shall be liable for the Intervenors1 attorney's fees in 
an amount to be determined and in the following proportion: 
Commonwealth, 75%; City, 25%.

4. Further proceedings on attorney's fees be and hereby 
are STAYED until further order of this Court.

J k  CO* turn. V-
Maurice B. Cohill, Jr. 
Chief Judge

cc: Robert B. Smith, Esq.
Joseph F. Quinn, Esg.
Mary K. Conturo, Esq.
City of Pittsburgh 
Law Department 
313 City-County Building 
Pittsburgh, PA 15219
A. Bryan Campbell, Esq.
3100 Grant Building 
Pittsburgh, PA 15219

2



Thomas J. Henderson, Esq.
Suite 1002
Law & Finance Building 
429 Fourth Avenue 
Pittsburgh, PA 15219
Robert L. Potter, Esq.
Ronald D. Barber, Esq.
Strassburger, McKenna, Gutnick & Potter 
322 Blvd. of the Allies 
Pittsburgh, PA 15222
Neighborhood Legal Services 
928 Penn Avenue 
Pittsburgh, PA 15222
N.A.A.C.P
2203 Wylie Avenue
Pittsburgh, PA 15219
Samuel J. Cordes, Esq.
Philip A. Ignelzi, Esq.
Ogg, Jones, Desimone & Ignelzi 
245 Fort Pitt Boulevard 
Pittsburgh, PA 15222
Thomas Halloran, Esq.
Manor Building
4th Floor, 564 Forbes Avenue
Pittsburgh, PA 15219
Paul D. Boas, Esq.
Berlin, Boas & Isaacson
5th Floor, Law & Finance Bldg.
Pittsburgh, PA 15219

3





IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA; 
GUARDIAN OF GREATER PITTSBURGH 
INC.; N .A .A .C.P.; N .O.W .; 
et al.,

Plaintiffs, 
v.

PETER F. FLAHERTY, Mayor, 
et al.,

Defendants. 
and

F.O.P. for FORT PITT LODGE 
No. 1,

Intervening Defendant.

MICHAEL C. SLATER,
Plaintiff,
v .

CITY OF PITTSBURGH, 
a municipal corporation, 

Defendant.

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

Plaintiffs,
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,

Defendants.

)
)
)
)) CIVIL ACTION NO. 75-162
)
)
)
)
)
)
)
)
)
)
)
)

)
)
)) CIVIL ACTION NO. 90-457
)
)
)
)

)
)
)
)
)
)) CIVIL ACTION NO. 90-629
)
)
)
)
)
)
)
)

B



MEMORANDUM ORDER
Before the Court is the Commonwealth of Pennsylvania's 

Motion to Alter or Amend Judgment. For the following reasons, we 
will deny the Commonwealth's Motion.

On September 9, 1991, this Court granted intervenor's 
motion for partial summary judgment. We held that although the 
late Judge Weber and this Court took extensive amounts of evidence, 
the plaintiffs failed to meet their burden of showing sufficient 
evidence of intentional discrimination to require the time and 
expense of further evidentiary hearings. We noted that Judge 
Weber, in his 1975 opinion establishing the preliminary injunction 
at issue here, based his determination of race and sex 
discrimination not on a finding of intentional discrimination, but 
rather on the disparate impact of the City's hiring procedures upon 
women and minorities.

By our September 9, 1991 Order, we also awarded the 
intervenors attorney's fees against the Commonwealth. We held that 
although United States Supreme Court held in Christiansburah 
Garment Co. v. EEOC. 434 U.S. 412 (1978) and Roadway Express, Inc, 
v. Piper. 447 U.S. 752 (1980), that prevailing defendants in civil 
rights cases can only obtain attorney's fees if the plaintiff's 
claims are frivolous, unreasonable, or groundless, the intervenors 
were nonetheless entitled to attorney's fees. We held that by 
granting attorney's fees to the intervenors in this case we were 
acting consistent with the underlying rationale of the 
Christiansburqh opinion. That is, we were acting pursuant to

2



congress' goal of encouraging victims of discrimination to sue 
while discouraging frivolous litigation. See Roadway Express. 447 
U.S. at 762.

In its Motion to Alter or Amend Judgment, the 
Commonwealth argues that this Court erroneously concluded that 
there was no genuine issue of material fact. In partial support 
of this argument, the Commonwealth points out that we incorrectly 
concluded that the Commonwealth stipulated that if the injunction 
were dissolved, the City would continue to recruit applicants for 
the position of police officer from all racial and gender groups.

In addition, the Commonwealth argues that this Court 
misapplied Chipollini v. Spencer Gifts. Inc.. 814 F.2d 893 (3d Cir. 
1987) . Chipollini holds that direct evidence of discriminatory 
intent is not required to defeat a defendant's motion for summary 
judgment and that the plaintiff is entitled to the benefit of all 
reasonable inferences to be drawn from the evidence of record and 
by resolving disputed issues of fact.

After carefully considering the plaintiff's arguments, 
we reaffirm our September 9, 1991 Opinion and Order. Throughout 
the course of this litigation, the plaintiffs have not shown 
sufficient evidence of intentional discrimination to justify 
further evidentiary hearings in this matter. Although we 
acknowledge that we erroneously concluded the plaintiffs had 
stipulated that the City would continue to take steps to recruit 
applicants from all racial and gender groups, we do not find that 
this fact affects our decision. We also reaffirm our prior opinion

3



that the intervenors are entitled to attorney's fees and that this 
decision is consistent with the rational of the Supreme Court of 
the Unites States and the United States Congress. Thus we will 
deny the Commonwealth's Motion to Alter or Amend Judgment.

AND NOW, to-wit, this j It ̂  day of December, 1991 it is 
ORDERED, ADJUDGED and DECREED that the Commonwealth of 
Pennsylvania's Motion to Alter or Amend Judgment be and hereby is 
DENIED.

Maurice B. Cohill, Jr.
Chief Judge

cc: Thomas Halloran, Esq.
Manor Building
4th Floor, 564 Forbes Avenue
Pittsburgh, PA 15219
Robert B. Smith, Esq.
Joseph F. Quinn, Esq.
Mary K. Conturo, Esq.
City of Pittsburgh 
Law Department 
313 City-County Building 
Pittsburgh, PA 15219
A. Bryan Campbell, Esq.
3100 Grant Building 
Pittsburgh, PA 15219
Robert L. Potter, Esq.
Ronald D. Barber, Esq.
Strassburger, McKenna,
Gutnick & Potter
322 Blvd. of the Allies
Pittsburgh, PA 15222
Samuel J. Cordes, Esq.
Philip A. Ignelzi, Esq.
Ogg, Jones, Desimone & Ignelzi 
245 Fort Pitt Boulevard 
Pittsburgh, PA 15222

4



Mary P. Portis, Esq. 
Portis & Associates 
Three Gateway Center 
Suite 1890
Pittsburgh, PA 15222





IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA; 
GUARDIANS OF GREATER PITTSBURGH 
INC.; N.A.A.C.P.; N .0.W .; 
et al.,

Plaintiffs, 
v.

PETER F. FLAHERTY, Mayor, 
et al. ,

Defendants. 
and

F.O.P. for FORT PITT LODGE 
No. 1,

Intervening Defendant.

MICHAEL C. SLATER,
Plaintiff,
v .

CITY OF PITTSBURGH, 
a municipal corporation, 

Defendant.

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

Plaintiffs,
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, 

Defendants.

)
)
)
)
) CIVIL ACTION NO. 75-162
)
)
)
)
)
)
)
)
)
)
)
)

)
)
)
) CIVIL ACTION NO. 90-457
)
)
)
)

)
j
)
)
)) CIVIL ACTION NO. 90-629 
)
)
)
)
)
)
)
)

|0 72A
Pev. 0/82)

c



OPINION
COHILL, D.J.

Before the Court is the Commonwealth's "Motion for 
Reconsideration of the Orders of September 9, 1991 and December 16, 
1991." The Commonwealth's Motion for Reconsideration applies to 
decisions made prior to our granting its motion to withdraw from 
the case.

We will grant the Commonwealth's motion to reconsider 
but, for the reasons stated below, we decline to reverse our ruling 
that the Commonwealth should pay 75% of the Intervenors ' attorney's 
fees and that the City should pay 25%.
MOTIONS TO RECONSIDER AWARD OF ATTORNEY'S FEES

By Opinion and Order dated March 20, 1991 this Court-
granted a motion by four white male police officers who intervened 
in civil action number 75-162 (Intervenors) to dissolve an 
injunction imposing a quota hiring system within the City of 
Pittsburgh Police Department. Commonwealth v. Flaherty. 760 
F.Supp. 472, (W.D. Pa. 1991). The Injunction and quota system were 
imposed in 1975 by the late Judge Gerald Weber as an interim hiring 
method to remain in effect until final disposition of the 
plaintiff's request for permanent injunctive relief or until 
further order of court. Commonwealth v. Flaherty. 404 F.Supp. 
1022, 1031 (W.D.Pa. 1975). Fifteen years later this "interim
hiring method" was still in effect.

After they achieved a dissolution of the injunction, the 
Intervenors filed a motion to dismiss for lack of prosecution or

2



in the alternative a motion for summary judgement. By Opinion and 
Order dated September 10, 1991, we declined to take the drastic 
action of dismissal under Federal Rule of Civil Procedure 42(b). 
We noted, however, that the Commonwealth's inaction permitted the 
hiring injunction to continue long after significant changes in 
federal law which invalidated the injunction. Therefore we 
determined that the Commonwealth should not be insulated from 
paying attorney fees under section 1988 simply because it bore the 
label of plaintiff. We then granted a petition for fees submitted 
by the Intervenors as the prevailing party in the litigation. It 
was the Intervenors, after all, who successfully sought and brought 
about the dissolution of a preliminary induction requiring race and 
gender-based hiring in the Pittsburgh Police Department.

In our Opinion we noted that in an action to enforce 
certain civil rights provisions of federal law, "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." 
September 10 Opinion at 12, citing. 42 U.S.Ch § 1988. We 
determined that the Intervenors were prevailing parties because 
they achieved their objective of dissolving the preliminary 
induction which they claimed unfairly discriminated against white 
males. We also noted, however, that the Intervenors' request for 
fees from the plaintiff and the defendant was unusual.

Prevailing plaintiffs in civil rights cases are awarded 
attorney fees unless such an award would be unjust. Prevailing 
defendants are awarded attorney fees only when the plaintiff's

3



claim is frivolous, unreasonable or groundless. Id. citing. Roadway 
Express, Inc, v. Piper, 447 U.S. 752, 762 (1980). To award
attorney fees to a prevailing intervenor against a civil rights 
plaintiff and defendant at first glance would appear to penalize I 
a defendant without a finding of liability and would appear to 
penalize a plaintiff without a finding that his or her claim was! 
frivolous, unreasonable or groundless. We found, however, than 
doing so in this case would further the underlying purpose behinc. 
awarding attorney fees in civil rights actions, that is, 
discouraging discrimination.

We stated that the Intervenors should be treated as 
prevailing civil rights plaintiffs since they achieved their 
objective in eliminating a discriminatory practice, albeit one that . 
was created pursuant to a court order. The Intervenors were civil 
rights plaintiffs in two related actions against the city; Slater, 
et al. v. City of Pittsburgh. C.A. 90-457 and Boehm, et. al. v. 
Masloff, C.A. 90-629. In these actions, which were consolidated 
with this action by Memorandum Order dated Augusts 23, 1990, the
Intervenors sought the same relief achieved in this case. Their 
objective was the dissolution of the city's hiring quota system 
imposed pursuant to Judge Weber's injunction based upon the theory 
that it was discriminatory and not supported under applicable law.

We also found that the Commonwealth, after it had 
obtained a preliminary injunction forcing the City to hire based 
on a quota system, never sought final adjudication of this case and 
never sought to affirm the validity of the injunction under

4



subsequent case law which, to say the least, called into question 
the validity of Judge Weber's injunction. In addition, we 
recognized the city's role in permitting the quota to exist for so 
many years. The city never appealed Judge Weber's preliminary 
injunction or asked the court to reconsider its validity after 
Washington v. Davis. 426 U.S. 229 (1976)(plaintiffs in 1981 actions 
must show intentional discrimination to invoke court's equitable 
remedial powers), and Personnel Adm'r of Mass. Feeney. 442 U.S. 256 
(1979)(use of veteran's preferences in public employment hiring 
does not violate equal protection).

In essence, we realigned the parties after having 
determined that the city and the Commonwealth, apparently satisfied 
with the status quo, permitted Judge Weber's injunction to exist 
indefinitely. In this way the Commonwealth and the city ceased to 
hold opposing interests concerning the ultimate outcome of this 
case. It is well recognized that when determining whether 
diversity jurisdiction exists courts may realign parties according 
to their ultimate interests in the outcome of the action. 13B 
Federal Practice and Procedure § 3607. pWe~~believed that it was 
proper to realign the parties in this action for purposes of 
awarding attorney's fees to the intervening plaintiffs because it 
would further Congress' goal of attacking discrimination by 
encouraging civil rights lawsuits. We stated that both the 
Commonwealth and the city should be treated as civil rights 
defendants because "[w]hen a government entity, by action or 
inaction, leaves in place a hiring system that unfairly hinders the

AO 72A
(Rev. 8/82)

5



civil rights of any group, the congressional purpose behind 42 
U.S.C. § 1988 justifies the imposition of attorney's fees." 
September 9 Opinion at 16-17.

But in our decision to award attorney fees against the 
Commonwealth and the City we also invoked the authority given to 
us under Rule 42(b). We chose sanctions as an alternative means 
to the drastic action of dismissal of this case for failure to 
prosecute.

We chose to require the Commonwealth to pay 75% of the 
Intervenors1 fees because it was primarily responsible for 
prosecuting the action in the interests of all racial and gender 
groups.
Appeal

The Commonwealth has in its motion to reconsider
suggested that the United States Court of Appeals has exhibited
disapproval of our decision to award the Intervenors attorney fees
in the following statement:

Despite the fact that it was incumbent**upon 
the City to pursue the dissolution of the 
preliminary injunction, and the City failed 
to do so, the district court, in a highly 
unusual opinion, assessed the Intervenors' 
unquantified attorney's fees against the 
Commonwealth and the City in the ratio of 75% 
to 25% respectively. Setting aside the 
difficulty we have in justifying the district-, 
court's characterization of the Commonwealth 
as a civil rights 'defendant' for the 
purposes of imposing attorney's fees, we must 
first decide our jurisdiction over the non­
final portion of the district court's order. '

983 F. 2d 1267, 1277 (3d Cir. 1993).

6



Upon reconsideration, we still feel that our action in 
treating the Commonwealth as a defendant in this action for the 
sole purpose of awarding attorney's fees is proper. Awarding 
attorney fees to a prevailing intervenor is not unprecedented. 
See. e.q. . Wilder v. Bernstein. 965 F.2d 1196 (2d Cir. 1992) cert.
denied, ___ U. S . ___; Grove v. Mead School District, 753 F.2d 1528
(9th Cir. 1985), cert, denied. 474 U.S. 826 (1985); Donnell v. 
U. S.. 682 F.2d 240 (U.S. App. D.C. 1982), cert, denied. 459 U.S. 
1204 (1983). Courts have also awarded attorney fees against 
Intervenors. See. Geir v. Richardson. 871 F.2d 1310 (6th Cir. 

1989) .
Requiring the original plaintiff in a civil rights 

action to pay a portion of the Intervenors' attorney fees is, 
perhaps, unprecedented. Under these unique circumstances, however, 
we believe that Congress' goals of encouraging civil rights 
litigation to eliminate discrimination will be well-served by 
requiring those that permitted a discriminatory quota system to 
exist to pay the attorney fees of the party which, was successful 
in eliminating the quota. We also believe that an award of 
attorney fees is an appropriate alternative to dismissing this case 
under Federal Rule of Civil Procedure 42(b).

The Commonwealth, which did very little for fifteen 
years to move this case along, was opposed to the Intervenor's 
attempt to dissolve the induction requiring a hiring quota. The 
Intervenors claimed that the quota was discriminatory. The 
Intervenors were successful and the Commonwealth was not. Thus we

7



view the Commonwealth as a losing party which permitted an invalid 
injunction which it secured to remain ip place for fifteen years 
as it failed to prosecute its claims. / In this sense we believe the 
Commonwealth is properly construed as an unsuccessful civil rights 
defendant for purposes of section 1988, that an imposition of 
attorney fees was an appropriate alternative to dismissal under

Commonwealth should bear 75% of the intervenor's attorney fees and 
the City should bear 25% is fair.-

Rule also feel that our determination that the

Maurice B. Cohill, Jr. 
Judge

8

AO 72A
(Rev. 8/82)



IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA; 
GUARDIANS OF GREATER PITTSBURGH 
INC.; N .A .A .C.P . ; N .0.W . ; 
et al. ,

Plaintiffs, 
v .

PETER F. FLAHERTY, Mayor, 
et al.,

Defendants. 
and

F.O.P. for FORT PITT LODGE 
No. 1,

Intervening Defendant.

MICHAEL C. SLATER,
Plaintiff,
v.

CITY OF PITTSBURGH, 
a municipal corporation, 

Defendant.

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

Plaintiffs,
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,

Defendants.

)
)
)
)
) CIVIL ACTION NO. 75-162
)
)
)
)
)
)
)
)
)
)
)
)

)
)
)) CIVIL ACTION NO. 90-457
)
)
)
)

)
)
)
)
)
)) CIVIL ACTION NO. 90-629 
)
)
)
)
)
)
)
)

AO 72A
(Rev. 8/82)



AND NOW, to wit, this ^ ̂ day of August, 1993, it is 
hereby ORDERED, ADJUDGED and DECREED that the Commonwealth's Motion 
for Reconsideration of the Orders of September 9, 1991 and December 
16, 1991 (No. 221) is GRANTED but this court reaffirms its prior 

fee awards.
Outstanding in this case is the Intervenor's Amended 

Motion for Fees and Expenses (No. 230). The Commonwealth and the 
City of Pittsburgh shall, by August 20, 1993 respond to this fee 

petition.
1V<' •

Maurice B. Cohill, Jr.
Judge

cc: Richard Joyce, Esq.
City of Pittsburgh 
Law Department 
313 City-County Building 
Pittsburgh, PA 15219
A. Bryan Campbell, Esq.
3100 Grant Building 
Pittsburgh, PA 15219
Samuel J. Cordes, Esq.
Ogg, Jones, Desimone & Ignelzi 
245 Fort Pitt Boulevard 
Pittsburgh, PA 15222
Thomas Halloran, Esq.
Manor Building
4th Floor, 564 Forbes Avenue
Pittsburgh, PA 15219
Mary Portis, Esq.
Portis & Associates 
Three Gateway Center 
Suite 1353
Pittsburgh, PA 15222
Wendell G. Freeland, Esq.
Freeland & Kronz 
Manor Complex 
564 Forbes Avenue 
Pittsburgh, PA 15219

AO 72A
(Rev. 8/82)

2



D



IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA; 
GUARDIANS OF GREATER PITTSBURGH 
INC.; N .A .A .C .P.; N . O . W . ; 
et al.,

Plaintiffs, 
v.

PETER F. FLAHERTY, Mayor, 
et al.,

Defendants. 
and

F.O.P. for FORT PITT LODGE 
No. 1,

Intervening Defendant.

MICHAEL C. SLATER,
Plaintiff,
v .

CITY OF PITTSBURGH, 
a municipal corporation, 

Defendant.

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

Plaintiffs,

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,

Defendants.

)
)
)
)) CIVIL ACTION NO. 75-162
)
)\/
)
)
)
)
)
)
)
)
)

)
)
)) CIVIL ACTION NO. 90-457
)
)

)
)
)
)
)
)) CIVIL ACTION NO. 90-629
)
)
)
)
)
)
)
)

|A O  72A
Rev. 8/82)

D



MEMORANDUM ORDER
Presently before the court are two motions for fees and 

expenses filed by the intervenors in this case pursuant to 42 
U.S.C. § 1988 and Fed. R. Civ. P. 41 (b).

We had previously assessed the intervenors1 awards in 
terms of a proportion of 75% against the Plaintiff Commonwealth of 
Pennsylvania ("Commonwealth") and 25% against the Defendant City 
of Pittsburgh. Opinion and Order dated September 9, 1991. The 
United States Court of Appeals for the Third Circuit later held 
that an award of a proportionate amount of reasonable attorney's 
fees lacks the necessary element of finality for purposes of 28 
U.S.C. § 1291, and declined to assume jurisdiction over the fees 
issue. Commonwealth of Pennsylvania v. Flaherty. 983 F.2d 1267 (3d 
Cir. 1993). The issue is now on remand.

There are two sets of intervenors in this case: first, 
Michael A. Benner and Danial A. Dulski ("Benner and Dulski"), 
represented by Ronald D. Barber, Esg., and second, Paul G. Clark 
and Richard Unser ("Clark and Unser"), represented** by Samuael J. 
Cordes, Esq. The City of Pittsburgh has satisfied its portion of 
the fee award by consent judgment, and the only opposing party is 
the Commonwealth. The Commonwealth does not dispute the hourly 
rates asserted by either Mr. Cordes ($125 per hour) or Mr. Barber 

($120 per hour).
It is well-settled law that a prevailing party in a 

civil rights action is entitled to recover reasonable attorneys 
fees. Hensley v. Eckhart, 461 U.S. 424 (1983) (emphasis added).

2



First, the fee petition submitted by Mr. Cordes on 
behalf of intervenors Clark and Unser requests $65,955.03, of which 
$49,466.27 would be payable by the Commonwealth under our 
proportionality mandate. The Commonwealth asserts that it will 
stipulate, for the purposes of appeal, that the total amount to be 
awarded under their fee petition is $40,000.00, which, minus the 
25% award against the City of Pittsburgh, would award the 
intervenors $30,000.00 against the Commonwealth. The intervenors 
agree with this stipulated amount. Intervenors Clark and Unser 
Reply dated March 16, 1994. We hold that this stipulated amount 
of costs and fees was reasonable and necesary for successful 
prosecution of the case filed on behalf of intervenors Clark and 
Unser. The intervenors case has a long history spanning from April 
1990 through May, 1993, and Mr. Cordes has asked for an appropriate 
amount of reimbursement for his involvement in the case.

The Commonwealth disputes the amount of fees requested 
by the second intervenors, Benner and Dulski, totalling $71,542.60, 
of which $53,656.95 would be awarded to the intervenes against the 
Commonwealth. The Commonwealth argues that the amounts requested 
include excessive hours and duplication. For example, intervenors 
Benner and Dulski assert that they should be reimbursed for 55.7 
hours to prepare one appellee brief, nearly 24 hours to prepare for 
the oral argument regarding that brief, roughly 78 hours to prepare 
another appellee brief, and 32 hours to prepare for oral argument 
of this second brief. The Commonwealth argues that these hours are 
excessive given the experience of counsel, the maximum length

3



allowed for oral argument (7.5 minutes), and the somewhat 
duplicative nature of the legal issues involved in the cases for 
the two sets of intervenors.

We have also compared these hours with those of Mr. 
Cordes, counsel for the other intervenors, and agree that the 
amount of time spent on the preparation for oral argument and in 
writing appellee briefs is unreasonable. We will order that the
Commonwealth shall pay the intervenors Benner and Dulski $30,000.

/ /"7AND NOW, to-wit, this / 1 day of March, 1994, it
is hereby ORDERED, ADJUDGED and DECREED that the Intervenors' 
Benner and Dulski's Amended Fee Petition (Doc. 250) and Supplement 
to Amended Fee Petition (Doc. 252) be and hereby are GRANTED in 
part and DENIED in part, and that the Commonwealth of Pennsylvania 

shall pay the amount of $30,000.00.
IT IS FURTHER ORDERED THAT the Intervenors' Amended 

Motion for Fees and Expenses (Doc. 230) be and hereby is GRANTED 
in part and DENIED in part and that the Commonwealth of 
Pennsylvania shall pay the stipulated amount of seventy-five 

percent of $40,000 or $30,000.00.

7 /i. C y & d L L

Maurice B. Cohill,‘Jr.
Judge

4



cc: Richard Joyce, Esq.
City of Pittsburgh 
Law Department 
313 City-County Building 
Pittsburgh, PA 15219
A. Bryan Campbell, Esq.
3100 Grant Building 
Pittsburgh, PA 15219
Samuel J. Cordes, Esq.
Ogg, Jones, Desimone & Ignelzi 
245 Fort Pitt Boulevard 
Pittsburgh, PA 15222
Thomas Halloran, Esq.
Manor Building
4th Floor, 564 Forbes Avenue
Pittsburgh, PA 15219
Mary Portis, Esq.
Portis & Associates
One Bigelow Square - Twentieth Floor 
Pittsburgh, PA 15219
Wendell G. Freeland, Esq.
Freeland & Kronz 
Manor Complex 
564 Forbes Avenue 
Pittsburgh, PA 15219
Ronald D. Barber, Esq.
322 Boulevard of the Allies 
Suite 700
Pittsburgh, PA 15222

5



CERTIFICATE OF ADMISSION 
TO THE BAR OF THE THIRD CIRCUIT

I, Thomas F. Halloran, Senior Deputy Attorney General for 
the Commonwealth of Pennsylvania, hereby certify that I have been 
admitted to the bar of the United States Court of Appeals for the 
Third Circuit.

Thomas F. Halloran
Senior Deputy Attorney General



CERTIFICATE OF SERVICE

I hereby certify that I am this day serving two copies of 
the foregoing document, namely, Brief for Appellant, Commonwealth 
of Pennsylvania, upon the persons and in the manner indicated below 
which service satisfies the requirements of F.R.A.P. 25.

Service by first-cass mail, addressed as follows:
Wendell Freeland, Esquire 
Freeland & Kronz 
Suite 1111 
Manor Complex 
Pittsburgh, PA 15219

Ronald D. Barber, Esquire 
Strassburger, McKenna, 
Gutnick & Potter 

Suite 700
322 Boulevard of the Allies 
Pittsburgh, PA 15222

Samuel J. Cordes, Esquire 
Ogg, Jones, DeSimone 

& Ignelzi
245 Fort Pitt Boulevard 
Pittsburgh, PA 15222

Richard Joyce, Esquire 
City Law Department 
313 City-County Building 
Pittsburgh, PA 15219

dated this 3rd day of June, 1994.

Thomas F. Halloran
Senior Deputy Attorney General

OFFICE OF ATTORNEY GENERAL 
4th Floor, Manor Complex 
554 Forbes Avenue 
Pittsburgh, PA 15219
Date: June 3, 1994



A T T O R N E Y S  A T  L A W

E L E V E N -E L E V E N  M A N O R  C O M P L E X

P IT T S B U R G H , P E N N S Y L V A N IA  15219-2986

(4 1 2 ) 471-5287 

F A X  (4 1 2 ) 471-9503

F IL E  NO.

June 8, 1994

Ted Shaw, Associate Director-Counsel 
NAACP Legal Defense Fund, Inc.
99 Hudson Street 
New York, NY 10013

Dear M r . Shaw:

I believe this case might warrant your attention 
for a short amicus brief. I enclose a copy of the 
brief of the Commonwealth of Pennsylvania. In the 
later stages of the case, I represented the local 
black officers, the Guardians, and the NAACP local 
chap ter.

You may recall my daughter, Lisa, worked for the 
Fund a couple of years ago.

Very truly yours

WGF/cp
Enclosure