Bridgeport Guardians, Inc. v. Members of the Bridgeport Civil Service Commission Brief for the Members of the Bridgeport Civil Service Commission in Opposition

    IN TH E

&uprm£ ( ta r t  of tty

October Term, 1974 

No. 75-543

BRIDGEPORT GUARDIANS, INC., ET AL 

VS.

MEMBERS OF THE BRIDGEPORT CIVIL 
SERVICE COMMISSION, ET AL

ON PETITION FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

BRIEF FOR MEMBERS OF THE BRIDGEPORT 
CIVIL SERVICE COMMISSION IN OPPOSITION

Richard M. Sheiman 
Deputy City Attorney 

202 State Street 
Bridgeport, Connecticut 06604

Jack Samowitz 
Legal Aid

202 State Street 
Bridgeport, Connecticut 06604

Counsel for Defendants, Members 
of the Bridgeport Civil Service 
Commission



1

INDEX

Page

Opinions Below...................    1

Jurisdiction...............................................    2

Questions P resen ted .....................................................  2

Statutes Involved........................      2

Statem ent......................................................................  3

A rgum ent......................................................................  3

Conclusion.......................................    8



CITATIONS

CASES: Page

Delaware Citizens For Clean Air, Inc. v. Stauffer 
Chemical Co., 62 F.R.D. 353......................................  7

Diamond Shamrock Corp. v. Lumbermen’s Mutual 
Gas Co., 406, F .2d 722 ................................................  5

Hall v. Cole, 93 S.Ct. 1943..............................................  4

Jinks v. Mays, 464 F.2d 1223 ........................................  8

Kirkland v. New York State Dept, of Correctional 
Service, 374 F. Supp. 1361........................................  6

Knight v. Anciello, 453 F.2d 852 ................................... 7

Lee v. Southern Home Sites Corp.,444 F.2d 143.......... 7

Newman v. Piggie Park Enterprises, Inc., 390 
U.S. 402 ................................................................   6

Northcross v. Board of Ed. of Memphis City
Schools, 93 S.Ct. 2202 ............................................  5,7

Smith v. City of East Cleveland, 363 F. Supp.
1131..............................................................................  8

Stolberg v. Trustees for State Colleges of Con­
necticut, 474 F .2d 485 ................................................  4

Wilderness Society v. Morton, 42 L.W. 2526...............  6

ii



IN TH E

Supreme (ftourt of %  Intftfc States

October Term, 1974 

No. 75-543

BRIDGEPORT GUARDIANS, INC., ET AL 

VS.

MEMBERS OF THE BRIDGEPORT CIVIL 
SERVICE COMMISSION, ET AL

ON PETITION FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

BRIEF FOR MEMBERS OF THE BRIDGEPORT 
CIVIL SERVICE COMMISSION IN OPPOSITION

OPINIONS BELOW

The opinion of the Court of Appeals is reported at 497 
F. 2d 1113 and is reprinted in Petitioners’ Appendix pp. 
14a-18a. The opinion of the District Court is not report­
ed, but is reprinted in 8 EPD  ̂9508 and is set out in Peti­
tioners’ Appendix pp. la-13a.



2

JURISDICTION

The Courts jurisdiction is invoked under 28 U.S.C. 
§1254 (1).

QUESTION PRESENTED

It is mandatory that the Federal Courts must use the 
theory of a private Attorney General when deciding 
whether to award attorney fees in a class action Section 
1981 and 1983, 42 United States Code case, or may the 
Federal Courts exercise discretion depending upon the 
facts of the case?

STATUTORY PROVISIONS INVOLVED

Section 1981, 42 United States Code:

All persons within the jurisdiction of the United States 
shall have the same right in every State and Territory to 
make and enforce contracts, to sue, be parties, give evi­
dence, and to the full and equal benefit of all laws and 
proceedings for the security of persons and property as 
is enjoyed by white citizens, and shall be subject to like 
punishments, pains, penalties, taxes, licenses, and exac­
tions of every kind, and to no other.

Section 1983, 42 United States Code:

Every person who, under color of any statute, ordi­
nance, regulation, custom, or usage, of any State or Ter­
ritory, subjects or causes to be subjected, any citizen of 
the United States or other person within the jurisdiction 
thereof to the deprivation of any rights, privileges, or 
immunities secured by the Constitution and laws, shall 
be liable to the party injured in an action at law suit in 
equity, or other proper proceeding for redress.



3

STATEMENT

Petitioners commenced action pursuant to 42 U.S.C. 
44 1981 and 1983 to challenge the hiring and promotion 
procedures of the Bridgeport, Connecticut, Police De­
partment. Plaintiffs in addition to being members of the 
Police Department were also members of the Black and 
Puerto Rican community. The plaintiffs prevailed con­
cerning the entering level but were reversed as to 
remedy involving promotions. After two years, the 
plaintiffs did not win the litigation which they sought, 
but rather a major portion of their litigation was re­
versed by the Court of Appeals for the Second Circuit.

The District Court denied the award of attorney fees. 
The Court was well within its discretion in denying costs 
because the District Court was aware of the role of all of 
the parties in the attempted settlement of the case. It 
was only when the settlement discussions broke down 
neither of the parties were agreeable to a result similar 
to the final result that the entire litigation continued. In 
addition, most of the parties who had an interest in be­
coming members of the force were represented by Ira 
Horowitz who is with the Bridgeport Legal Services.

ARGUMENT

Petitioners contention that the issue involved is 
whether Federal Courts have the authority, in the ab­
sence of express statutory authorization, to award attor­
ney fees to a successful plaintiff who acts as a private at­
torney general in enforcing important public policies is 
not the facts of the present case. Judge Newman did not 
decide that the plaintiffs’ attorneys were acting as pri­
vate attorney generals. And even if the Judge would 
have, he still has an option as to awarding attorney fees. 
The law is clear on this point.



4

“Although the traditional American rule ordinarily 
disfavors the allowance of attorneys’ fees in the ab­
sence of statutory or contractual authorization, 
federal courts, in the exercise of their equitable 
powers may award attorneys’ fees when the inter­
est of justice so require. Indeed, the power to award 
such fees “is part of the original authority of the 
chancellor to do equity in a particular situation,” 
and federal courts do not hesitate to exercise this 
inherent equitable power whenever “overriding 
considerations indicate the need for such a recov­
ery.”
Thus it is unquestioned that a federal court may 
award counsel fees to a successful party when his 
opponent has acted “in bad faith, vexatiously, wan­
tonly or for oppressive reasons.” In this class of 
cases, the underlying rationale of “fee-shifting” is of 
course punitive, and the essential elements in trig­
gering the award of fees is therefore the existence 
of “bad faith” on the part of the unsuccessful liti­
gant.”

Hall v. Cole, 93 S.Ct. 1943, 1945, 1946.

Although the award of attorney fees is restricted to 
exceptional cases another standard for awarding attor­
ney fees is whether bringing the suit was unnecessary 
and was compelled by the defendants “unreasonable, ob­
durate, obstinancy”. This does not mean that if a defend­
ant decides to resist a claim of discrimination in every 
case, that he is unreasonable or obstinate.

Stolberg v. Trustees for State Colleges of Connecti­
cut, 474 F.2nd 485, 490.

Mere fact that a defendant is unsuccessful will not jus­
tify an award of attorney fees.



5

Diamond Shamrock Corp. v. Lumbermen’s Mutual 
Gas Co., 406, F.2nd 722.

If awards of attorney fees are to be made to promote 
public policy expressed in legislative action, they should 
be authorized by Congress and not by the Court. Counsel 
fees are not ordinarily recoverable in absence of statu­
tory or contractual authority and only in exceptional 
cases. Even in cases whereby statute attorney fees are 
permitted in special circumstances the courts have the 
discretion of not making any award.

Northcross v. Board of Ed. of Memphis City 
Schools, 93 S.Ct. 2202.

Congress has not seen fit to pass any legislation mak­
ing an award of attorney fees permissible in any case 
brought under 42 U.S.C.A. 1983 and, therefore, the 
court could only award attorney fees in a very exception­
al case in the discretion of the court.

Some courts in their discretion in awarding attorney 
fees have adopted what is referred to as “private attor­
ney general theory”. The rationale for making these 
awards is that its effect will be to encourage litigants to 
vindicate public rights without concern for the consider­
able financial burden of legal fees. In this case, the court 
merely stated that awarding attorney fees was not man­
datory in every case brought under the concept of pri­
vate attorney general. The award of attorney fees is al­
ways discretionary. To be otherwise, might be danger­
ous. The chief rationale behind the traditional American 
rule that bars the award of fees to successful litigants, is 
the fear that parties might be unjustly discouraged from 
instituting or defending actions to vindicate their rights 
if the penalty for losing in court would always include 
fees for the opponents’ counsel.



6

Wilderness Society v. Morton, 42 L.W. 2526.

The private attorney general theory is not rejected by 
our Circuit. The Guardians’ decision stands for the prop­
osition that: “While the concept of private attorney gen­
erals is an important one, engulfing it on Sec. 1983 so as 
to make attorneys’ fees “ordinarily” recoverable, New­
man v. Piggie Park Enterprises, Inc., supra 390 U.S. 
402, would amount to a judicial amendment of-Sec. 1983 
with a provision Congress has thus far not placed there.”

See Memorandum of Decision of District Court, 
pet. lOa-lla.

Kirkland v. New York State Dept, of Correctional 
Service, 374 F. Supp. 1361, 1381-82 (1974) a Second 
Circuit case applied the private attorney general theory 
in awarding attorney fees in a similar suit but signifi­
cantly a subsequent case and one in which the plaintiffs 
were totally successful. It is also significant to note that 
the petitioners’ attorney, Jack Greenberg, handled the 
Kirkland case and should be aware that the Second 
Circuit applied the private attorney general theory when 
it so sees fit. Judge Newman decided that under the cir­
cumstances of the Bridgeport Guardian case, it would be 
unjust to award attorney fees or apply the private attor­
ney general theory.

See Memorandum of Decision of District Court, 
pet. 10a-12a.

The District Court was well within its discretion in 
denying costs because the District Court was aware of 
the role of the parties in the attempted settlement of the 
case. It was only when the settlement discussions broke 
down that neither of the parties were agreeable to a



7

result similar to the final result that the entire litigation 
continued. “The trial judge was fully aware of all of the 
facets of this case, the contribution made by counsel for 
plaintiffs, as well as the reasonableness of the resistance 
to the plaintiffs’ claim by the defendants. We do not find 
any abuse of discretion.”

Opinion of the Court of Appeals, pet. 18a.
“The award of attorneys’ fees to a prevailing party
in these situations is an exercise of the general
equity jurisdiction of the federal courts.”
Delaware Citizens for Clean Air, Inc. v. Stauffer
Chemical Co., 62 F.R.D. 353, 354 (1974)

The plaintiffs did not win the litigation which they 
sought, but rather a major portion of their litigation was 
reversed by the Court of Appeals for the Second Circuit. 
“Since there is no statutory provision for attorneys’ fees 
under 42 U.S.C. Sec. 1983, attorneys’ fees should be 
allowed only when the public policy would require it.”

Knight v. Auciello, 453 F. 2d 582, First Circuit
(1972) , cited in Northcross v. Board of Education,
412, U.S. 427, 93 S.Ct. 2201, 37 L. Ed 2d 43, 51 n.2
(1973) .

The court should consider the degree to which a public 
right is asserted by plaintiff and the extent to which de­
fendant has engaged in deliberate wrongdoing.

Id; Lee v. Southern Home Sites Corp., 444 F.2d 143
5th Circuit (1971).

In this case, defendants have not deliberately em­
barked on a course of discrimination and at least with
respect to racial discrimination have, in fact, prevailed in 
their defense against one of the plaintiffs claims. In the 
exercise of its discretion, the Court declines to award 
attorneys’ fees to plaintiffs.



8

Smith v. City of East Cleveland, 363 F. Supp. 1131 
(1973).

The award of attorneys’ fees is discretionary, not man­
datory.

“The allowance of such fees is within the discretion 
of the district court and its exercise of this discre­
tion would not be upset on appeal in the absence of 
clear abuse.”

Jinks v. Mays, 464 F2d 1223, 1228 (1972).

There is no real conflict between Circuits as to prin­
ciple on the issue of attorney fees only as to decisions. 
Therefore, if the jurisdiction of the Supreme Court were 
granted to review this case by Writ of Certiorari, the 
Court would be giving the defeated party in the Circuit 
Court of Appeals another hearing.

CONCLUSION

For the foregoing reasons, it is respectfully submitted 
that the Petition for a Writ of Certiorari should be 
denied.

Defendants, Members of the
Bridgeport Civil Service Commission
By Richard M. Sheiman 

Deputy City Attorney 
202 State Street 
Bridgeport, Connecticut

By Jack Samowitz 
Legal Aid 
202 State Street 
Bridgeport, Connecticut



McQuillan/Marsh Printing Corporation 
Stratford, Conn.