Bridgeport Guardians, Inc. v. Members of the Bridgeport Civil Service Commission Supplemental Brief in Support of Petition for Writ of Certiorari

    I n the

£ > u p r r m e  Q lm ir l n f  l u i t r i *  i » t a t r s

O ctober T erm , 1971

No. 74-543

B ridgeport G uardians, Inc., et al.,

vs.
Petitioners,

M embers of the

B ridgeport Civil  S ervice Commission , et al.

SUPPLEMENTAL BRIEF IN SUPPORT OF 
PETITION FOR WRIT OF CERTIORARI

M ichael  P. K oskoff 
1241 Main Street 
Bridgeport, Connecticut 06603

I ra H orowitz

412 East Main Street 
Bridgeport, Connecticut

J ack  Greenberg

E ric S chnapper 
Suite 2030 
10 Columbus Circle 
New York. New York 10019

Counsel for Petitioners



Isr the

§ > t t p r m p  G Im trt n t  %  I t u f r f c  ^ t a t r a
October T erm, 1974 

No. 74-543

B ridgeport Guardians, I nc ., et al.,

Petitioners,
vs.

Members of the
B ridgeport Civil Service Commission, et al.

SUPPLEMENTAL BRIEF IN SUPPORT OF 
PETITION FOR W RIT OF CERTIORARI

Petitioners Bridgeport Guardians, Inc. et al., submit this 
supplemental memorandum with regard to this Court’s de­
cision in Alyeska Pipeline Service Co. v. Wilderness 
Society, No. 73-1977 (May 12, 1975).

This case presents the question, discussed but not 
decided in Alyeska, of whether the federal courts have the 
power, under the “ common benefit” rule, to award counsel 
fees where a successful plaintiff has conferred a sub­
stantial benefit on the public and where, by imposing that 
award on a governmental entity, the cost is passed on to 
the public. In Alyeska the court of appeals disclaimed 
reliance on the common benefit theory, since an award 
against the defendant Alyeska Pipeline Service would not 
have been borne by the benefiting public. 495 F.2d 1026, 
1029; slip opinion, p. 5, n. 14; p. 19. Although Alyeska did 
not fall within the ambit of the common benefit rule, this 
Court reaffirmed the vitality of that rule as expounded



2

from Trustees v. Greenough, 105 U.S. 527 (1881) to Hall v. 
Cole, 412 U.S. 1 (1973), and declined to limit the rule to 
benefits under “ important” statutes. Slip opinion, pp. 17- 
18, 24-25, n. 39.

In the instant case, both courts below expressly acknowl­
edged the “ substantial public service” which plaintiffs had 
performed for the citizens of Bridgeport by ending racial 
discrimination in the hiring of police officers, a finding not 
questioned by respondents. Petition 17-18. The importance 
to the community of effective law enforcement is beyond 
dispute; the lower courts correctly concluded the integra­
tion of the Police Department had substantially increased 
its ability to protect the public. An award of counsel fees 
against the defendant city agencies, to be met in turn from 
taxes paid by city residents, would spread the cost 
equitably among the beneficiaries of that more effective 
law enforcement. The decisions of this Court require an 
award of counsel fees where the benefited class is com­
posed of bond holders, Trustees v. Greenough, 105 TJ.S. 527 
(1883), stockholders, Mills v. Electric Auto-Lite Co., 396 
TJ.S. 375 (1970), creditors, Central Railroad and Banking 
Co. v. Petus, 113 U.S. 116 (1885), trust beneficiaries, 
Sprague v. Ticonic National Bank, 307 U.S. 161 (1939), and 
union members, Hall v. Cole, 412 U.S. 1 (1973). Certiorari 
should be granted to decide whether, and under what 
circumstances, that common benefit rationale is applicable 
to cases conferring benefits on the public.

This case also presents a significant question regarding 
the applicability of new statutes to pending cases. This is 
an action alleging racial discrimination in public employ­
ment, a practice now forbidden by Title VII, which ex­
pressly authorizes awards of counsel fees. 42 U.S.C. 
§2000e-5(k). This case, however, was filed in February, 
1972, one month before Title VII was amended to apply



3

to public employment; the action was therefore commenced 
under 42 U.S.C. §§ 1981 and 1983. Because Title VII did 
not then apply to them, plaintiffs could not meet the techni­
cal prerequisite to a Title V II action—the filing of a 
complaint with the Equal Employment Opportunity Com­
mission. The principles reaffirmed in Thorpe v. Housing 
Authority of Durham, 393 U.S. 268 (1969) and Bradley v. 
School Board of City of Richmond, 416 U.S. 696 (1974), 
require that the counsel fee provisions of Title VII be ap­
plied to public employment cases pending on March 24, 
1972, when Title V II was made applicable to such dis­
crimination. It would clearly be unjust to penalize plain­
tiffs for promptly pursuing ripe claims or for failing to 
file a complaint with EEOC when it was, as a matter of 
law, impossible to do so.

For these reasons, a Writ of Certiorari should issue to 
review the judgment and opinion of the Second Circuit.

Respectfully submitted,

M ich ael  P. K oskoff 
1241 Main Street 
Bridgeport, Connecticut 06603

Ira H orowitz

412 East Main Street 
Bridgeport, Connecticut

Jack Greenberg
E ric Schnapper 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Counsel for Petitioners



MEILEN PRESS INC. —  N. Y. C. 219