Jackson v. Long Island Railroad Company Brief for Appellees

    I n  the

Supreme (tort of tlj? I n M  B u u b

October Term, 1974 

No.

B ridgeport G uardians, I n c ., et al.,

vs.
Petitioners,

M embers of th e  B ridgeport 
C iv il  S ervice C om m ission , et al.

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

FOR THE SECOND CIRCUIT

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

I ra H orowitz

412 East Main Street 
Bridgeport, Connecticut 06608

J ack  G reenberg

E ric S ch napper  
Suite 2030 
10 Columbus Circle 
Newr York, New York 10019

Counsel for Petitioners



Opinions Below 

Jurisdiction __

I N D E X

PAGE

1

2

Question Presented......................... .*................................  2

Statutory and Constitutional Provisions Involved....... 2

Statement of the Case ............ .................... ..................  3

Reasons for Granting the Writ ............... ....... .............. 5

C onclusion  ........................ ................................................. ............  19

A ppendix—

Memorandum of Decision of District Court........ la

Opinion of the Court of Appeals ........... ...... .......  14a
Order of the Court of Appeals Denying Rehearing 19a 

Cases:

Alyeska Pipeline Service Co. v. The Wilderness So­
ciety, No. 73-1977 ........... ............................... .............. 18

Bradley v. School Board of City of Richmond, 40 L.Ed.
2d 476 (1974) ............................. ..................6, 8,16,17,18

Brandenhurger v. Thompson, 494 F.2d 885 (9th Cir.
1974) ............................... ..... ............................. .........11,15

Brown v. Balias, 331 F.Supp. 1033 (N.D. Tex. 1971) .... 14

Callahan v. Wallace, 466 F.2d 59 (5th Cir. 1972) ....... 10
Calnetics Corp. v. Volkswagen, 353 F.Supp. 1219 (C.D.

Cal. 1973) 13



11

Commissioner v. Bilder, 369 U.S. 499 (1962)................-  9
Cooper v. Allen, 467 F.2d 836 (5th Cir. 1972) ..............9,10
Cornist v. Richland Parish School Board, 495 F.2d 189

(5th Cir. 1974) ................ ..................................... - -1 0 ,15
Council of Organization on Philadelphia Police, etc. v.

Tate, 60 F.R.D. 615 (E.D. Pa. 1973) .................. - .....  14

Delaware Citizens for Clean Air, Inc. v. Stauffer
Chemical Co., 62 F.R.D. 353 (D. Del. 1974) ..............  14

Doherty v. Wilson, 356 F.Supp. 35 (M.D. Ga. 1973) .... 14 
Donahue v. Staunton, 471 F.2d 475 (7th Cir. 1972), 

cert, den. 410 U.S. 955 (1973) ........................... ......12,16

Fairley v. Patterson, 493 F.2d 598 (5th Cir. 1974) ...... . 10
F.D. Rich Co. v. Industrial Lumber Co., 40 L.Ed. 2d

703 (1974) ............................................... ......................6,18
Ford v. White (S.D. Miss. No. 1230 (N)) (Opinion

dated August 5, 1972) ........ ..... ............. .............. — 13,15
Fowler v. Schwarzwalder, 498 F.2d 143 (8th Cir. 

1974) ..................................... .... ................... -.... ...... -11,16

Gilpin y. Kansas State High School Activities Associa­
tion, 377 F.Supp. 1233 (D. Kan. 1974) ...................... 14

Hall v. Cole, 412 U.S! 1 (1973) ..............................-.5,16,17
Hammond v. Housing Authority, 328 F.Supp. 586 (D.

Ore. 1971) .......................................... .......... .................  14
Harper v. Mayor and City Council of Baltimore, 359

F.Supp. 1187 (D. Md. 1973) .................... ................ 13
Holt v. Hutto, 363 F.Supp. 194 (E.D. Ark. 1973) .......  13

Incarcerated Men of Allen Company v. Fair, 376 
F.Supp. 483 (N.D. Ohio 1973) ....................................  13

PAGE

Jinks v. Mays, 350 F.Supp. 1037 (N.D. Ga. 1972) .......13,15



Ill

Jordon v. Gilligan, (N.D. Ohio) (opinion dated March 
9, 1973) rev’d on other grounds 500 F.2d 701 (6th 
Cir. 1974) .......................................................................  14

Kirkland v. New York State Dept, of Correctional Ser­
vices, 374 F.Supp. 1361 (S.D.N.Y. 1974) ..................  13

Knight v. Auciello, 453 F.2d 853 (1st Cir. 1972) .........7,10

La Raza Unida v. Volpe, 57 F.R.D. 94, (N.D. Cal.
1972) ....................................................-.......................13,15

Lee v. Southern Home Sites Corp., 429 F.2d 290 (5th
Cir. 1970) ...................................................................7,9,10

Lyle v. Teresi, 327 F.Supp. 683 (D. Minn. 1971) ..........  13

Milburn v. Huecker, 500 F.2d 1279 (6th Cir. 1974) ....... 12
Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970)   17
Mitchell v. DeMario Jewelry, 361 U.S. 788 (1960) ........ 16
Morales v. Haines, 486 F.2d 880 (7th Cir. 1973) ........ 12
Morrow v. Crissler, 4EPD fl 7563 (S.D. Miss. 1971) .... 13

N.A.A.C.P. v. Allen, 340 F.Supp. 703 (M.D. Ala. 1972) 13 
Natural Resources Defense Council Inc. v. Environ­

mental Protection Agency, 484 F.2d 1331 (1st Cir.
1973) .................. .......................... - ....... -..........- .......-  10

Newman v. Piggie Park Enterprises, 390 U.S. 400
(1968) ..................................................................... -.....  14

Newman v. State of Alabama, 349 F.Supp. 278 (M.D.
Ala. 1972) ......................................... .......................... - 13

Northcross v. Board of Education, 412 U.S. 427 (1973) 5

Ross v. Goshi, 351 F.Supp. 949 (D. Hawaii 1972)..........  13

Scott v. Opelika City Schools, 63 F.R.D. 144 (M.D.
Ala. 1974) ........................................................ .............  14

Sierra Club v. Lynn, 364 F.Supp. 834 (W.D. Tex. 1973) 13

PAGE



iv
PAGE

Sims v. Amos, 340 F.Supp. 691 (M.D. Ala.) ail’d 409
U.S. 942 (1972) .............................................. ......... .....  13

Skehan v. Board of Trustees of Bloomsburg State Col­
lege, 501 F.2d 31 (3d Cir. 1974) .............. ..... ..... .......  12

Smith v. City of East Cleveland, 363 F.Supp. 1131 (N.D.
Ohio 1973) ....................................................................  14

Sprague v. Tieonic National Bank, 307 U.S. 161 (1939) 16
Stanford Daily v. Zurcher, 366 F.Supp. 18, (N.D. Cal.

1973) .......................................................... ............... 13,15
Stevens v. Dobs, Inc., 373 F.Supp. 618 (E.D. N.C.

1974) .........................................      14
Stolberg v. Trustees for the State Colleges of Con­

necticut, 474 F.2d 485 (2d Cir. 1973) _____ __ ______  8

Taylor v. Perini, (No. 73-2071, 6th Cir.) (Opinion
dated October 3, 1974) ________________ ______ _____ 12

Thonen v. Jenkins, 374 F.Supp. 134 (E.D. N.C. 1974) ..13,15

Wilderness Society v. Morton, 495 F.2d 1026 (D.C. Cir.
1974) .................................................................     12

Wyatt v. Stickney, 344 F.Supp. 387 (M.D. Ala. 1972) .... 13

Statutes:

20 U.S.C. § 1617 ............................................................... 8
28 U.S.C. § 1254(1) ......................................................... 2
42 U.S.C. § 1981 ........................ ...... .................. 2, 3, 9,11,13
42 U.S.C. § 1982 ...............................................................9,10
42 U.S.C. § 1983 ........................ .......................3, 8,10,11,13
42 U.S.C. §2000e-5(k) ........................... ........................  8

Other Authorities:

Brief for the United States as Amicus Curiae, No.
72-1332 ............................................................................ 17



I n' th e

(Ermrt of %  B M vb

October Term, 1974 

No.

B eidgepobt Guardians, I n c ., et al.,

Petitioners,
vs.

M embees of tpie B eidgepoet 
C iv il  S ervice C om m ission , et al.

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

FOR THE SECOND CIRCUIT

Tbe Petitioners, Bridgeport Guardians, Inc., et al., re­
spectfully pray that a Writ of Certiorari issue to review 
the judgment and opinion of the United States Court of 
Appeals for the Second Circuit entered in this proceeding 
on June 3, 1974.

Opinions Below

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



2

Jurisdiction

The judgment of the Court of Appeals for the Second 
Circuit was entered on June 3, 1974. On August 15, 1974, 
the Court of Appeals denied petitioners’ petition for rehear­
ing. Pp. 19a-20a. This Court’s jurisdiction is invoked 
under 28 U.S.C. § 1254(1).

Question Presented

Do the federal courts have the authority, in the absence 
of express statutory authorization, to award counsel fees 
to a successful plaintiff who acts as a private attorney gen­
eral in enforcing important public policies?

Statutory and Constitutional Provisions Involved

Section 1 of the Fourteenth Amendment to the United 
States Constitution provides:

All persons born or naturalized in the United States, 
and subject to the jurisdiction thereof, are citizens of 
the United States and of the State wherein they reside. 
No State shall make or enforce any law which shall 
abridge the privileges or immunities of citizens of the 
United States; nor shall any State deprive any person 
of life, liberty, or property, without due process of law; 
nor deny to any person within its jurisdiction the equal 
protection of the laws.

Section 1981, 42 United States Code, provides:
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 evidence, and to the full and equal benefit 
of all laws and proceedings for the security of persons



3

and property as is enjoyed by white citizens, and shall 
be subject to like punishments, pains, penalties, taxes, 
licences, and exactions of every kind, and to no other.

Section 1983, 42 United States Code, provides:
Every person who, under color of any statute, ordi­

nance, regulation, custom, or usage, of any State or 
Territory, subjects, or causes to be subjected, any citi­
zen 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 proceed­
ing for redress.

Statement of the Case

This action was commenced in February 1972, pursuant to 
42 U.S.C. §§ 1981 and 1983, to challenge the constitution­
ality of certain hiring and promotion. procedures of the 
Bridgeport, Connecticut, Police Department. Plaintiffs are 
several Black members of the Bridgeport Police Depart­
ment, several Black and Puerto Rican applicants who had 
been rejected by the Department, and Bridgeport Guard­
ians, Inc., an organization whose membership includes 
nearly all the Black policemen in Bridgeport. Plaintiffs 
contended, inter alia, that the written examination used in 
hiring policemen was not job related, and excluded dispro­
portionate numbers of Black and Puerto Rican applicants.

After extensive discovery1 and a trial lasting three 
weeks, the District Court concluded that the examina- 1

1 The pre-trial discovery included six sets of interrogatories as 
well as extensive depositions. Petitioners also successfully defeated 
three motions to dismiss.



4

tion used in hiring patrolmen had “an unconstitutional 
effect because as used, it classified applicants by race and 
national origin without sufficient evidence of job related­
ness to justify such a result.” 354 F.Supp. 778, 793 (1). 
Conn. 1973). The District Court found that 58% of all 
white applicants passed the examination, compared to only 
17% of the Black and Puerto Bican applicants. As a result 
of the examinations, of the 469 members of the Department, 
only 17 (3.6%) were Black and Puerto Rican, although 
those minorities accounted for 25% of the Bridgeport popu­
lation. The proportion of minority policemen in Connecti­
cut’s two other large cities, Hartford and New Haven, was 
several times larger than in Bridgeport. The Bridgeport 
Police Superintendent conceded that test scores did not 
correlate with job performance. See 354 F.Supp. at 788- 
790. On appeal, the Second Circuit upheld the finding of 
discrimination, and the remedy for discriminatory hiring, 
and remanded for the refashioning of the remedy for dis­
criminatory promotions. 482 F.2d 1333 (2d Cir. 1973).

This litigation brought about substantial changes in the 
hiring and promotion practices of the Bridgeport Police 
Department. The discriminatory examination was abol­
ished and a non-discriminatory test established. General 
hiring procedures were reformed. Under the order of the 
District Court at least half of all vacancies in the rank 
of patrolmen were filled with qualified Black and Puerto 
Bican applicants until there were 50 minority patrolmen, 
an increase of 200%. Promotion and seniority rules were 
modified in various respects to dissipate the continuing 
effect of past discrimination.

On remand plaintiffs moved for an award of attorneys’ 
fees for the 2 years of litigation in the District Court 
and Court of Appeals required to bring defendants into 
compliance with the law. The District Court, however,



5

concluded that it had no power to award such fees in the 
absence of “unreasonable, obdurate obstinacy.” Pp. 11a- 
12a. The Court of Appeals affirmed on the same ground. 
Pp. 17a-18a.

Reasons for Granting the Writ

On four occasions in the last two years this Court has 
discussed, but found it unnecessary to decide, whether the 
federal courts have the power, in the absence of an express 
statutory authorization, to award counsel fees to a success­
ful plaintiff who acts as a “private attorney general” in 
enforcing important public policies. In Hall v. Cole, 412 
U.S. 1 (1973), this Court explained:

. . . respondent contends that the award of attorneys’ 
fees in this case might also be justified on the ground 
that, by successfully prosecuting this litigation, re­
spondent acted as a ‘private attorney general’ vindi­
cating a policy that Congress considered of the high­
est priority. Id., at 402. See also Knight v. Auciello, 
453 F.2d 852 (1st Cir. 1972); Lee v. Southern Home 
Sites Corp., 444 F.2d 143 (5th Cir. 1971). In light 
of our conclusion with respect to the “common bene­
fit” rationale, however, we have no occasion to con­
sider that question.

412 U.S. at 7, n.8. The same question was presented in 
Northcross v. Board of Education,2 412 U.S. 427 (1973), 
and again not resolved.

We also do not decide whether, and under what 
circumstances, an award of attorneys’ fees is permis­
sible in suits under 42 U.S.C. § 1983 in the absence 
of a specific statutory authorization for such an

2 See Petition for Writ of Certiorari, No. 72-1164, pp. 7-8.



6

award. See Knight v. Auciello, 453 F.2d 852 (1st Cir.
1972); Lee v. Southern Home Sites Corp., 444 F.2d 
143 (5th Cir. 1971).

412 U.S. at 429, n.2. In Bradley v. School Board of City 
of Richmond, 40 L.Ed.2d 476 (1974), the District Court 
had awarded counsel fees, inter alia, on the ground that 
plaintiffs had acted as private attorneys general3 and this 
Court noted:

It is particularly in the area of desegregation that 
this Court in Newman and in Northcross recognized 
that, by their suit, plaintiffs vindicated a national policy 
of high priority. Other courts have given explicit and 
implicit recognition to the priority placed on desegre­
gation by the Congress. See Knight v. Auciello, 453 
F.2d 852, 853 (1st Cir. 1972) and Lee v. Southern Home 
Sites Corp., 444 F.2d 143, 145 (5th Cir. 1971) (hous­
ing); Johnson v. Combs, supra, 471 F.2d, at 86 
(schools); Miller v. Amusement Enterprises, Inc., 426 
F.2d 534, 537-538 (5th Cir. 1970) (public accommoda­
tion); Cooper v. Allen, 467 F.2d 836, 841 (5th Cir. 
1972) (employment). 40 L.Ed.2d at 493, n. 27.

In Bradley counsel fees were awarded on other grounds, 
and the Court again did not decide whether such fees could 
be awarded in the absence of express statutory authoriza­
tion to a private attorney general. See 40 L.Ed.2d at 
487-497. Two weeks after Bradley this Court again noted 
that the question of whether counsel fees could be awarded 
to private attorneys general still remained undecided. F.D. 
Rich Co. v. Industrial Lumber Co., 40 L.Ed. 2d 703, 714 
(1974).

3 See 53 F.R.D. 28, 41.-42 (E.D. Va. 1971).



7

The lower courts have also applied a rationale for 
fee shifting based on the premise that the expense of 
litigation may be a formidable if not insurmountable 
obstacle to the private litigation necessary to enforce 
important public policies. This “private attorney gen­
eral” rationale has not been squarely before this Court 
and it is not so now; nor do we intend to imply any 
view either on the validity or scope of that doctrine.

The instant case requires a definitive resolution of that 
often deferred question.

In their motion for counsel fees, Petitioners expressly 
relied on the private attorney general theory, and stressed 
the effect of their efforts in vindicating important public 
policies.4 5 The defendants, however, maintained that coun­
sel fees could only be awarded if they had been guilty of 
unreasonably obstinate conduct in connection with the liti­
gation.6 The District Court acknowledged that plaintiffs 
had substantially advanced the public interest, but con­
cluded it had no power to award counsel fees under the 
decisions of the Second Circuit.

The Court of Appeals has recently stated the 
standard for awarding attorneys’ fees in a § 1983 suit 
to be whether bringing the suit was unnecessary and 
was compelled by the defendant’s “unreasonable, 
obdurate obstinacy” . Stolberg v. Trustees for the State

4 Plaintiffs’ Post-Trial Memorandum, pp. 41-45. Petitioners ex­
pressly relied, inter alia, on the decisions of the First and Fifth 
Circuits in Knight v. Auciello, 453 F.2d 853 (1st Cir. 1972) and 
Lee v. Southern Home Sites Corp., 429 F.2d 290 (5th Cir. 1970). 
Id., p. 43.

5 See, e.g., Brief for Appellants, pp. 14-16. “ The standard for 
awarding attorneys’ fees in a Sec. 1983 suit is whether bringing 
the suit was unnecessary, and was compelled by the defendant’s
‘unreasonable, obdurate obstinacy’ ” .



8

Colleges of Connecticut, 474 F.2d 485, 490 (2d Cir.
1973). While Stolberg involved intentional denial of 
constitutional rights, it will not always be necessary 
to prove intentional discrimination to be entitled to 
attorneys’ fees. But once the claim of discrimination 
has been made, there must be some indication that the 
defendant’s decision to resist the claim imposed upon 
plaintiffs an unwarranted burden. That cannot be 
said in this case. . . .

P. 11a.
On appeal the Second Circuit reaffirmed the “unreason­

able, obdurate obstinacy” test which it had announced in 
Stolberg v. Trustees for the State Colleges of Connecticut, 
474 F.2d 485, 490 (2d Cir. 1973). The Court of Appeals 
stressed that section 1983, unlike Title VII of the 1964 
Civil Bights Act,6 or section 718 of the Emergency School 
Aid Act of 1972,7 did not expressly authorize an award of 
counsel fees. P. 18a.8

This case raises the same conflict among the circuits 
presented by, but not resolved in, Bradley v. Board of 
Education of City of Richmond, 472 F.2d 318, 327-3319 (4th

6 42 U.S.C. §2000e~5 (k).
7 20 U.S.C. § 1617.
8 The Second Circuit characterized the decision of the District 

Court as a reasonable exercise of “ discretion.” Pp. 17a-18a. This 
is somewhat misleading, since the District Court concluded that 
the decisions of the Second Circuit precluded any award of counsel 
fees, as an exercise of discretion or otherwise, in the absence of 
obdurate obstinacy.

9 “If, however, an award of attorney’s fees is to be made as a 
means of implementing public policy, as the District Court indi­
cates in its exposition of its alternative ground of award, it must 
normally find its warrant for such action in statutory authority. 
Congress, however, has made no provision for such award in school 
desegregation cases . . . .  We find ourselves in agreement with



9

Cir. 1972), rev’d on other grounds 40 L.Ed.2d 476 (1974). 
The Second and Fourth Circuits have declined to adopt or 
apply the private attorney general rule. Courts of Appeals 
for the First, Third, Fifth, Sixth, Seventh, Eighth and Ninth 
Circuits, and the District of Columbia, have accepted that 
rule. Certiorari should be granted to resolve this conflict 
and establish a uniform rule for the federal courts. Com­
missioner v. Bilder, 369 U.S. 499, 501 (1962).

The first court to adopt the private attorney general 
rule in the absence of an express statutory authorization 
was the Fifth Circuit Court of Appeals. In Lee v. 
Southern Horne Sites Corp., 444 F.2d 143 (5th Cir. 1971), 
a housing discrimination case under 42 TT.S.C. § 1982, the 
district court, as here, concluded it had no authority to 
award counsel fees since the defendant had not been “un­
reasonable” or “ obdurately obstinate” . See 444 F.2d at 
144. The Fifth Circuit reversed.

We hold that attorney’s fees are part of the effective 
remedy a court should fashion to carry out the congres­
sional policy embodied in Section 1982. . . . The recent 
case of Mills v. Electric Auto-Lite Co., 1970, 396 U.S. 
375, . . . demonstrates that it is proper to award at­
torney’s fees when this remedy effectuates congres­
sional policy. . . . Section 1982 is not a statute provid­
ing detailed remedies, and thus the policy of effectuat­
ing congressional purpose does not militate against 
an award of attorney’s fees. Additionally, here as in 
Mills there is strong congressional policy behind the 
rights declared in % 1982. Awarding attorney’s fees to 
successful plaintiffs would facilitate the enforcement 
of that policy through private litigation.

the conclusion that if such awards are to be made to promote the 
public policy expressed in legislative action, they should be au­
thorized by Congress and not by the eourts.” 472 F.2d at 328-331.



10

444 F.2d at 145. Counsel fees were to be awarded to 
successful plaintiffs “unless special circumstances would 
render such an award unjust.” 444 F.2d at 147. In Cooper 
v. Allen, 467 F.2d 836 (5th Cir. 1972), the Fifth Circuit 
applied the private attorney general rule to litigation under 
§ 1981 to enjoin employment discrimination by local govern­
ment agencies. See 467 F.2d at 841.10 The Fifth Circuit 
applied the private attorney general rule to uphold an 
award of counsel fees in litigation under the Voting Eights 
Act of 1965 in Fairley v. Patterson, 493 F.2d 598, 606 (5th 
Cir. 1974). See also Cornist v. Richland Parish School 
Board, 495 F.2d 189, 192 (5th Cir. 1974) (§ 1983) ; Callahan 
v. Wallace, 466 F.2d 59 (5th Cir. 1972).

The private attorney general rule was adopted by the 
First Circuit 7 months after Lee. In Knight v. Auciello, 
453 F.2d 853 (1st Cir. 1972), a § 1982 housing discrimina­
tion case, the district court had refused to award counsel 
fees. The First Circuit reversed.

The violation of an important public policy may 
involve little by way of actual damages, so far as a 
single individual is concerned, or little in comparison 
with the cost of vindication as the case at bar illus­
trates. If a defendant may feel that the cost of litiga­
tion, and, particularly, that the financial circumstances 
of an injured party may mean that the chances of suit 
being brought, or continued in the face of opposition, 
will be small, there will be little brake upon deliberate 
wrongdoing. In such instances public policy may sug­
gest an award of costs that will remove the burden 
from the shoulders of the plaintiff seeking to vindicate 
the public right. We regard this as such a case.

10 The substantive violation in Cooper was virtually identical to 
that shown in the instant case: the use of an examination which 
excluded disproportionate numbers of Blacks and bore no substan­
tial relationship to job performance. See 467 F.2d at 838-840.



11

453 F.2d at 853. The First Circuit reaffirmed that position, 
and relied on it to award counsel fees against a federal 
agency, in Natural Resources Defense Council, Inc. v. 
Environmental Protection Agency, 484 F.2d 1331, 1333-34 
(1st Cir. 1973).

In Brandenburger v. Thompson, 494 F.2d 885 (9th Cir.
1974), an action under §1983 successfully challenging a 
state residence requirement for welfare, the District Court 
denied counsel fees on the ground, inter alia, that the 
defendants had not acted in bad faith. The Ninth Circuit 
reversed.

Under the “private attorney general” doctrine an 
award of attorneys’ fees should be made to a litigant 
who (1) furthers the interests of a significant class of 
persons by (2) effectuating a strong congressional 
policy. The award serves the purpose of encouraging- 
such public-minded suits. . . . Under this doctrine, the 
good or bad faith of the defendant is irrelevant. Sims 
v. Ames, supra, 340 F. Supp. at 694-695.

The instant case falls squarely within the ambit of 
the “private attorney general” doctrine. The plaintiff 
benefitted a significant class, persons who are both 
potential welfare recipients and interstate travelers 
by vindicating the federally protected right of inter­
state travel free from the forfeiture of welfare 
benefits. And, since § 1983 expresses a strong policy 
of vindicating federal constitutional rights against 
infringement by state officials, . . . the plaintiff 
furthered congressional policy by challenging the 
Hawaii statute.

494 F.2d at 888-89.

The question of counsel fees arose under circumstances 
virtually identical to the instant case in Fowler v. Schwarz-



12

walder, 498 F.2d 143 (8th Cir. 1974). There the plain­
tiffs, suing under §§1981 and 1983, successfully over­
turned the written examination employed in hiring firemen. 
See 351 F.Supp. 721 (D. Minn. 1972). The District Court, 
however, denied counsel fees, reasoning, as here,

There is no statutory authority for such, and this is 
not the type of extraordinary case where the conduct 
of defendants was characterized by bad faith or un­
reasonable or obdurate obstinacy as to justify such an 
award.

498 F.2d at 144. The Eighth Circuit reversed on the ground 
that the district court had failed to use the correct guide­
lines in exercising its discretion.

Two opinions of the Supreme Court in recent years 
have served as the impetus for the establishment of 
new guidelines for the award of attorney’s fees to 
encourage litigation which vindicates certain strong 
Congressional policies. See Mills v. Electric Auto-Lite 
Co., 396 U.S. 375 (1970); Newman v. Piggie Park 
Enterprises, 390 U.S. 400 (1968) . . . Moreover, the 
“private attorney general” doctrine of Newman has 
been applied to award attorney’s fees under civil 
rights provisions of the United States Code without 
an express authorization of such fees. . . . Such reason­
ing is persuasive in our case as well. See Cooper v. 
Allen, supra. A suit under §§ 1981 and 1983 attacking 
racial discrimination in employment clearly furthers 
the will of Congress that such discrimination should 
be eliminated.

498 F.2d at 144-145. The private attorney general theory 
was also adopted by the Sixth Circuit in Milium  v. 
Huecker, 500 F.2d 1279 (6th Cir. 1974), Taylor v. Perini,



13

(No. 73-2071, 6th Cir.) (Opinion dated October 3,1974), the 
Seventh Circuit in Donahue v. Staunton, 471 F.2d 475 (7th 
Cir. 1972) cert. den. 410 U.S. 955 (1973); Morales v. Haines, 
486 F.2d 880, 882 (7th Cir. 1973), the Third Circuit in 
Skehan v. Board of Trustees of Bloomsburg State College, 
501 F.2d 31, 44 (3d Cir. 1974) and the Court of Appeals for 
the District of Columbia in Wilderness Society v. Morton, 
495 F.2d 1026, 1029-1037 (D.C.Cir. 1974), cert, granted 43 
U.S.L.W. 3185 (1974).

In at least 24 cases federal district courts have awarded 
counsel fees under the private attorney general rule, with­
out regard to the absence of “unreasonable, obdurate 
obstinacy.” See e.g., Harper v. Mayor and City Council of 
Baltimore, 359 F.Supp. 1187, 1217-1218 (D. Md. 1973) 
(employment discrimination; 42 IJ.S.C. §§1981, 1983); 
Stanford Daily v. Zurcher, 366 F.Supp. 18, 21-26 (N.D. 
Cal. 1973) (unlawful search and seizure; 42 U.S.C. § 1983); 
Ross v. Goshi, 351 F.Supp. 949, 955-56 (D. Hawaii 1972) 
(free speech; 42 U.S.C. § 1983); Jinks v. Mays, 350 F. 
Supp. 1037, 1038 (N.D. G-a. 1972) (employment discrimina­
tion; 42 U.S.C. § 1983); Holt v. Hutto, 363 F.Supp. 194, 
217 (E.D. Ark. 1973) (prison conditions; 42 U.S.C. § 1983); 
Newman v. State of Alabama, 349 F.Supp. 278, 286 (M.D. 
Ala. 1972) (hospital conditions; 42 U.S.C. § 1983) ; Sims v. 
Amos, 340 F.Supp. 691, 693-95 (M.D. Ala. 1972) (reaupor- 
tionment; 42 U.S.C. §1983) aff’d 409 U.S. 942 (1972); 
N.A.A.C.P. v. Allen, 340 F.Supp. 703, 707-710 (M.D. Ala,
1972) (employment discrimination; 42 U.S.C. §1938); La 
Rasa Unida v. Volpe, 57 F.R.D. 94, 98, 102 (N.D. Cal. 1972) 
(environmental protection); Kirkland v. New York State 
Dept, of Correctional Services, 374 F.Supp. 1361, 1381-82 
(S.D.N.Y. 1974) (employment discrimination; 42 U.S.C. 
§§ 1981, 1983); Incarcerated Men of Allen County v. Fair, 
376 F.Supp. 483, 485 (N.D. Ohio 1973) (prison conditions;



14

42 U.S.C. § 1983); TJionen v. Jenkins, 374 F.Supp. 134, 
136-140 (E.D. N.C. 1974) (free speech ; 42 U.S.C. §1983); 
Sierra Club v. Lynn, 364 F.Supp. 834, 847-48 (W.D. Tex.
1973) (environmental protection); Calnetics Corp. v. 
Volkswagen, 353 F.Supp. 1219 (C.D. Cal. 1973) (Clayton 
Act; 15 U.S.C. §18); Wyatt v. Stickney, 344 F.Supp. 387 
(M.D. Ala. 1972) (conditions in mental hospitals); Lyle v. 
Teresi, 327 F.Supp. 683 (D. Minn. 1971) (police mis­
conduct; 42 U.S.C. §1983); Morrow v. Crissler, 4 EPD 
117563 (S.D. Miss. 1971) (employment discrimination, 42 
U.S.C. §§ 1981, 1983); Ford v. White, (S.D. Miss. No. 
1230 (N)) (Opinion1 dated August 5, 1972); Jordon v. 
Gilligan, (N.D. Ohio) (opinion dated March 9, 1973), rev’d 
on other grounds 500 F.2d 701 (6th Cir. 1974); Scott v. 
Opelika City Schools, 63 F.R.D. 144, 149 (M.D. Ala. 1974) 
(employment discrimination; 42 U.S.C. §1983); Delaware 
Citizens for Clean Air, Inc. v. Stauffer Chemical Co., 62 
F.R.D. 353 (D. Del. 1974) (environmental protection); 
Council of Organisations on Philadelphia Police, etc. v. 
Tate, 60 F.R.D. 615, 616 (E D. Pa. 1973) (police miscon­
duct; 42 U.S.C. § 1983); Wallace v. House, 377 F.Supp. 1192 
(N.D. La. 1974) (voting discrimination; 42 U.S.C. §1983); 
Gilpin v. Kansas State High School Activities Association, 
377 F.Supp. 1233,1247-1253 (D. Kan. 1974) (sex discrimina­
tion; 42 U.S.C. §1983). See also Doherty v. Wilson, 356 
F.Supp. 35, 42 (M.D. Ga. 1973) (free speech; 42 U.S.C. 
§ 1983); Smith v. City of East Cleveland, 363 F.Supp. 
1131, 1151 (N.D. Ohio 1973) (employment discrimination; 
42 U.S.C. § 1983); Brown v. Balias, 331 F.Supp. 1033, 1037 
(N.D. Tex. 1971) (housing discrimination; 42 U.S.C. 
§ 1983); Hammond v. Housing Authority, 328 F.Supp. 586, 
588 (D. Ore. 1971) (housing discrimination; 42 U.S.C. 
§ 1983); Stevens v. Dobs, Inc., 373 F.Supp. 618, 620 (E.D. 
N.C. 1974) (housing discrimination; 42 U.S.C. §1982).



15

In the instant case both the District Court and the Court 
of Appeals stressed that the defendants had not been 
guilty of obdurately obstinate conduct. Pp. 11a, 17a, But 
the absence of such conduct is not sufficient to preclude 
an award of counsel fees under the private attorney general 
standard. Newman v. Piggie Park Enterprises, 390 U.S. 
400 (1968). Since an award of fees under this rule is 
intended to encourage litigation advancing the public 
interest, the good faith of the defendants is irrelevant. 
Many of the decisions awarding counsel fees to private 
attorneys general in actions under 42 U.S.C. §§ 1981-1983 
have expressly stated that no obdurate obstinacy was 
found. See, e.g., Brandenburger v. Thompson, 494 F.2d 
888 (9th Cir. 1974) ; Stanford Daily v. Zurcher, 366 F. 
Supp. 18, 25 (N.D. Cal. 1973); Thonen v. Jenkins, 374 F. 
Supp. 134, 137 (E.D. N.C. 1974); LaRasa Unida v. Volpe, 
57 F.R.D. 94, 96 (N.D. Cal. 1 9 7 2 ) Jinks v. Mays, 350 
F.Supp. 1037, 1038 (N.D. Ga. 1972) ;11 12 Ford v. White, (S.D. 
Miss. No. 1230 (N)) (Opinion dated October 19, 1972).13

In denying counsel fees the District Court and Court of 
Appeals also argued that section 1983, unlike Title VII of 
the 1964 Civil Bights Act, does not expressly authorize an 
award of counsel fees. Pp. 11a, 18a. Title VII itself is inap­

11 “ LaBaza involved complicated legal questions; by no means 
were the duties of the state clear, and the court reaffirms its 
earlier findings that the State Highway Department did not be­
have in Bad Faith . . . [Defendants’ errors and conduct falls 
short of obdurate behavior” .

12 “ In its written opinion the Fifth Circuit pointed out that the 
record is devoid of evidence of any bad faith or unlawful motive 
on the part of defendants” .

18 “ The plaintiffs did not base their claim for attorneys’ fees 
on any bad faith or unreasonableness on the part of the defen­
dants. From the outset, the defendants and their attorney worked 
closely with the attorneys for the plaintiffs as is evidenced by the 
final resolution of this case by a Consent Decree.”



16

plicable because this case was filed prior to the 1972 
amendments applying Title VII to state and local govern­
ments. A similar argument was made by the Fourth 
Circuit in Bradley, 472 F.2d at 328-331. But counsel fees 
have been awarded to private attorneys general under 
§ 1983 by the Fifth Circuit, Cornist v. Richland Parish 
School Board, 495 F.2d 189, 192 (5th Cir. 1974) (school 
desegregation) the Ninth Circuit, Brandenburger v. 
Thompson, 494 F.2d 885, 888-89 (9th Cir. 1974), the Eighth 
Circuit, POlder v. Schwarzwalder, 498 F.2d 143 (8th Cir.
1974) (employment discrimination), and the Seventh 
Circuit, Donahue v. Staunton, 471 F.2d 475, 483 (7th Cir. 
1972). See also pp. 13a-14a, supra. In Fowler the Eighth 
Circuit reasoned that the provisions of Title VII militated 
for, not against, an award of counsel fees under § 1983.

The decision of the Second Circuit is clearly erroneous. 
When a violation of federally protected rights is shown, 
federal courts have the inherent “historic power of equity 
to provide complete relief in light of the statutory pur­
poses.” Mitchell v. DeMario Jewelry, 361 U.S. 788, 291- 
292 (1960). That power has traditionally included the au­
thority to award counsel fees as part of costs where 
necessary “to do equity in a particular situation.” Sprague 
v. Ticonic Rational Bank, 307 U.S. 161, 166-167 (1939). 
This Court has previously recognized the important role 
played by the availability of an award of attorneys’ fees 
in cases such as this where private litigation is likely to 
be expensive to maintain to a successful conclusion and 
offer little promise of financial gain to the plaintiffs. Hall 
v. Cole, 412 U.S. 1, 13 (1973). As the Solicitor General 
correctly noted in supporting the private attorney general 
theory in Bradley, such private enforcement is a critical 
supplement to “ otherwise limited government enforcement 
resources.” 14 It is inherently unjust that, while thousands



17

of tax dollars may be expended to defend unlawful govern­
ment action, the cost of securing compliance with the law 
should be borne by a private plaintiff or his counsel. 
Counsel fees have traditionally been awarded where this 
serves to shift the cost of the litigation to a group which 
has benefited therefrom, Hall v. Cole, 412 U.S. 1 (1973) ; 
Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970). The 
United States noted in Bradley that such fee shifting was 
appropriate in such a case because the litigation had 
“benefited the respondent school officials and the public at 
large by bringing about the elimination of unlawful, dis­
criminatory practices from the schools [and] by vindicating 
their Fourteenth Amendment rights.” 14 15 The same con­
siderations apply to the instant case.

It is not disputed that Petitioners, by maintaining this 
action, did in fact vindicate public policies of the highest 
importance and confer substantial benefit on the community 
of Bridgeport. In atvarding relief on the merits, the Dis­
trict Court conceded that, the remedy not only advanced 
the interests of minority applicants and patrolmen, but 
vindicated the right of the citizens of Bridgeport “ to the 
enforcement of law by a police department staffed on a 
non-discriminatory basis.” 354 F.Supp. at 797. The Court 
of Appeals noted that fashioning an effective remedy 
was of particular importance because “the visibility of the 
Black patrolman in the community is a decided advantage 
for all segments of the public at a time when racial 
divisiveness is plaguing law enforcement.” 482 F.2d 1333, 
1341 (2d Cir. 1973). In denying counsel fees the District 
Court acknowledged the “ substantial public service that

14 Brief for the United States as Amicus Curiae, No. 72-1322, 
p. 9.

15 Brief for the United States as Amicus Curiae, No. 72-1322,
pp. 11-12.



18

plaintiffs’ counsel have rendered in securing a vindication 
of their clients’ constitutional rights, a result important 
not only to plaintiffs but to the entire Bridgeport com­
munity.” This Court expressly recognized in Bradley v. 
School Board of City of Richmond, 40 L.Ed.2d 476 (1974), 
that ending racial discrimination is “a national policy of 
high priority.” These circumstances require an award of 
counsel fees under the private attorney general theory and 
would have resulted in such an award in seven Circuits 
other than the Second.

The question presented by this case is related to, but 
not controlled by, the issues raised in Alyesha Pipeline 
Service Co. v. The Wilderness Society, No. 73-1977, cert, 
granted 43 U.S.L.W. 3185 (1974). The question raised by 
the Petitioners in Alyesha is not, as here, whether counsel 
fees may be awarded to private attorneys general in the 
absence of express statutory authorization, but whether 
such an award was proper on the unusual facts of that 
case and in view of the national policies regarding con­
struction of the Alaska pipeline. If the award of counsel 
fees in Alyesha is reversed, as in F.D. Rich Go. v. Indus­
trial Lumber Co., 40 L.Ed 2d 703, 714 (1974), the correct­
ness of the private attorney general rule will remain un­
resolved. If this Court affirms the award in Alyesha, that 
will not resolve whether, as the Second Circuit concluded 
below, counsel fees are precluded in cases such as this 
because of Title VII of the 1964 Civil Rights Act. In view, 
however, of the related nature of the issues presented, 
Petitioners would not object to the setting of an accelerated 
briefing schedule in the instant case so as to permit it to 
be argued with Alyesha.



19

CONCLUSION

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

Respectfully submitted,

M ic h a e l  P. K oskofe 
1241 Main Street 
Bridgeport, Connecticut 06603

I ra H orow itz

412 East Main Street 
Bridgeport, Connecticut 06608

J ack  G reenberg

E ric S ch n apper  
Suite 2030 
10 Columbus Circle 
New York, New York 10019

Counsel for Petitioners



APPENDIX



Memorandum o f Decision o f District Court

UNITED STATES DISTRICT COURT 

D istrict  of C o n n ecticu t  

C iv il  N o. B-457

B ridgeport G u ardians , I n c ., et  a l .,

v.

M em bers of th e  B ridgeport C ivil  
S ervice C o m m ission , et a l .,

M em oran du m  of D ecision  W it h  R espect to R em edy

This case is before the Court for further action with 
respect to formulation and implementation of a remedy. 
By decision dated January 29, 1973, this Court ordered a 
remedy with respect to both the hiring and promotion of 
members of the Bridgeport Police Department. 354 F.Supp. 
778. On June 28, 1973, the Court of Appeals for the 
Second Circuit affirmed that decision with respect to the 
hiring remedy but reversed with respect to the promotion 
remedy and remanded that aspect of the case for further
proceedings. ------F .2d ------- . The parties have been heard
informally in chambers and in open court on September 11, 
1973.

I.

With respect to hiring, the essential task is to imple­
ment those portions of this Court’s original decree that

la



2a

concern the appointment of patrolmen.1 Defendants have 
submitted to the Court a detailed document prepared by 
the personnel director of the Civil Service Commission, 
which was marked in evidence as Deft. Ex. 2 at the Sep­
tember 11 hearing. (Exhibit A to this Memorandum of 
Decision). That document outlines a program for assem­
bling the minority pool from which appointment of qual­
ified minority patrolmen will be made. Plaintiffs made 
no objection to defendants’ proposal, but offered eight 
additional suggestions (PL Ex. A), the first four of which 
defendants accepted. The Court agrees that the defen­
dants’ proposals, as supplemented by the first four of 
plaintiffs’ suggestions, should be implemented. Since de­
fendants have represented that they intend to implement 
these proposals and since some flexibility in developing 
the details of the proposals is desirable, it seems prefer­
able at this point not to incorporate the proposals into 
a formal decree.1 2 With jurisdiction of the case retained 
pending final implementation of the hiring remedy, plain­
tiffs can apply to this Court if the need should arise for

1 Plaintiffs urge that a substantive change should be made in 
the hiring remedy because of the Court of Appeals’ rejection of 
a promotion quota. They contend that the quota of minority 
patrolmen, previously established at 15% until the number of 
minority patrolmen reaches fifty, should be increased to offset the 
reduction in minority officers that results from the elimination 
of the promotion quotas in order to maintain an overall depart­
ment minority quota of 15%. Since the hiring portion of the 
original decree was affirmed, with no cross-appeal taken by plain­
tiffs in response to defendants’ attack on the promotion quotas, 
it is doubtful if the level of the hiring quota remains an open 
question. Even if it is, I am not inclined to adjust the figure.

2 Defendants still remain obligated, pursuant to paragraph 3 
of the original decree, to submit to this Court for approval the 
details that are still to be developed as to the criteria and pro­
cedures to be used in determining the qualifications for the minor­
ity pool.

Memorandum of Decision of District Court



Memorandum of Decision of District Court

supplementary relief to insure that the defendants’ pro­
posals are being implemented. In the event the defen­
dants require a further order of this Court to validate 
the proposed appointments as against conflicting state or 
local provisions, they can apply for an appropriate order. 
It may well be that the only formal order needed in this 
regard will be an order confirming the validity of the 
ajjpointment of the successful applicants from the minority 
pool.

Defendants have also submitted (Deft. Ex. 1) a sched­
ule for appointment of minority and non-minority patrol­
men in accordance with the provisions of the original 
decree of January 29, 1973. That schedule is approved 
with one minor correction. Paragraph 2(a)(3) of the 
original decree specified that the quota provisions remain 
in effect until the number of Black and Puerto Rican 
patrolmen is 50. Deft. Ex. 1 misreads that provision to 
refer to 50 minority members on the police force. There 
is now one minority detective. Thus, after the 28 minority 
patrolmen have been appointed as contemplated in defen­
dants’ schedule, the remaining number to be appointed 
will be six, rather than five as stated in the exhibit. This 
figure will increase if some minority patrolmen become 
detectives or sergeants before the total number of minority 
patrolmen reaches 50.

All parties apparently expect the November 3 examina­
tion planned by defendants to produce a sufficiently large 
minority pool of qualified applicants to meet the require­
ments of the original decree. If that expectation is dis­
appointed, defendants will have to submit additional pro­
posals to this Court to implement the original decree.

Defendants have also raised an additional point with 
respect to paragraph 4 of the original decree. That pro­



4a

vision maintained the validity of the existing eligibility 
list for patrolmen so that it could be used “in filling posi­
tions that became vacant within two years of the effective 
date” of such list. Since some of these positions will be 
filled from the minority pool, defendants want the existing 
patrolmen’s list to be valid for use in filling any vacancies 
that would have been filled within two years from the 
effective date of this list without regard to this lawsuit. 
In other words, the list is to be valid until it has been 
used to fill the number of patrolmen’s positions that become 
vacant during the two-year period starting with the effec­
tive date of the list. A similar problem with respect to 
the existing eligibility list for the rank of detective has an 
added complication because of the reduced time-in-grade 
requirement, and will be considered in Part I I , infra.

I I .

With respect to the remedy to be fashioned for promo­
tion above the rank of patrolmen the parties make sharply 
conflicting claims. Plaintiffs urge that a quota or some 
other form of minority preference be part of the remedy. 
They recognize that the opinion of the Court of Appeals 
rejected the use of a quota with regard to promotion. 
They insist nevertheless that the Court of Appeals deci­
sion was made only with regard to the record as developed 
at the time of this Court’s original decree, and that addi­
tional evidence will establish the propriety of a remedy 
that includes a quota. Specifically, they have made an 
offer of proof to establish two propositions: first, that 
significant recruitment of minority patrolmen will be seri­
ously impeded as long as minority representation in super­
visory ranks remains non-existent or minimal, and second, 
that the absence of minority officers in the ranks of the

Memorandum of Decision of District Court



5a

Bridgeport Police Department lias had and will continue 
to have an extremely adverse effect upon relationships 
between the department and the minority population of 
Bridgeport.

It was precisely considerations of this sort that led 
this Court to include a quota in its original decree. Addi­
tional evidence is not needed to persuade me of the validity 
of these propositions. But I do not read the opinion of 
the Court of Appeals as rejecting a promotional quota 
simply because the record as previously developed failed 
to indicate sufficient need for such remedy. Bather the 
Court of Appeals appears to have ruled as a matter of 
“law”—at least the law of equitable remedies—that in the 
absence of a finding that a promotion exam has produced 
discriminatory results that cannot be justified by a demon­
stration that the exam is job related, a promotional quota 
may not be used to remedy the absence of minority offi­
cers even though their absence is the ultimate result of 
a discriminatory hiring barrier at the level of patrolmen. 
The Court of Appeals has ruled that the concept of 
remedying the effects of past discrimination may not de­
feat the expectations for promotion of those Whites who 
are already members of the police department. One may 
wonder why this rule should apply with equal force not 
to applicants for promotion above the rank of sergeant, 
who have achieved their present officer rank through com­
petition in exams not shown to be discriminatory, but also 
to applicants for promotion to the rank of sergeant, who 
have achieved their present rank of patrolmen only 
through competition in an exam found to be racially dis­
criminatory. But the ruling of the Court of Appeals is 
clear, and I understand it to preclude the use of quota 
or other preference in any promotional ranks to remedy

Memorandum of Decision of District Court



the effects of past discrimination in the hiring of patrol­
men, regardless of any evidence that might show how 
desirable such a quota might be.

The contention of defendants is that the Court of Ap­
peals has precluded not only a quota or other preferential 
device with respect to promotions, but also any remedy 
selected with racial considerations in mind. I do not read 
the Court of Appeals’ opinion to have gone so far. The 
opinion directs that “any feasible amendment [to the pro­
motion procedures of the Bridgeport police department] 
apply to all candidates for promotion irrespective of race 
and ethnic background.” It seems evident, however, that 
the Court of Appeals was not precluding, but was actually 
inviting consideration of changes that might increase the 
chances of minority members being promoted. For ex­
ample, the Court of Appeals specifically suggested as a 
“possible solution” a reduction in the current three-year 
time-in-grade requirement for promotion eligibility. The 
obvious purpose of such a change is to make it possible 
for the new minority patrolmen to be considered for pro­
motion earlier than they otherwise would be. The Court 
of Appeals was not proposing alternative remedies simply 
to hasten promotion in the interest of some preferred 
notion of public administration. The problem for which 
it was offering a possible solution is the absence of minor­
ity officers. Plainly the Court was permitting this problem 
to be borne in mind, provided only that the solution, once 
selected, applied to all candidates for promotion without 
regard to race or ethnic background.

With these considerations in mind, the details of a 
promotional remedy can now be considered. The defen­
dants have suggested several changes in the existing 
promotion procedure: reduction of the time-in-grade

Memorandum of Decision of District Court



Memorandum of Decision of District Court

requirement to one year; replacement of the present rating 
for training, experience and general qualifications, which 
is based solely on time in the police department, with a 
new system basing the rating on the results of oral inter­
views before an examining panel;3 replacement of the 
Probst system of rating service records with a new rating 
form to be developed by McCann Associates; validation of 
all promotion exams to be used in the future. These pro­
posals are set forth in Deft. Ex. 2. In addition counsel 
suggested that a list of those eligible for promotion be 
prepared every two years so that vacancies can always 
be promptly filled as they occur. Plaintiffs do not oppose 
any of these suggestions. The Court agrees that these 
proposals should be implemented. As with the hiring 
remedy, it seems preferable not to incorporate these pro­
posals into a formal decree. The defendants will be 
required to submit progress reports on November 15, 1973, 
and at three-month intervals thereafter until the hiring 
remedy has been fully implemented to advise the Court as 
to the progress being made with respect to both the hiring 
and promotion remedies.

The parties are in dispute with respect to (a) eight 
sergeants and three detective positions that were filled 
from existing lists in July, 1973, and (b) the filling of 
sergeant and detective vacancies that may arise hereafter. 
Plaintiffs want the 11 positions already filled to be declared 
vacant (with the incumbents continuing on an acting basis 
only), and these positions and all others in these ranks

3 This proposal is responsive to the Court of Appeals’ sugges­
tion that the weight accorded seniority be reduced. Since the old 
T.E.G.Q. factor was virtually a measure of seniority, this factor, 
weighted at 30%, when combined with the straight seniority fac­
tor, weighted at 10%, produced a 40% weight for seniority. The 
new proposal reduces seniority weight to 10%.



8a

that may become vacant during the coming year to be 
held open for one year from the appointment of the new 
minority patrolmen. Defendants object to any change in 
the status of the 11 promotions already made and urge 
that existing lists be used for future appointments.

The circumstances surrounding the filling of the 11 posi­
tions do not reflect credit upon either the Bridgeport Police 
Department or the Bridgeport Civil Service Commission. 
The positions were filled before the mandate of the Court 
of Appeals reached this Court, a mandate that directed this 
Court to formulate a new promotion remedy. It is apparent 
that the defendants acted with unseemly haste to present 
this Court with a fait accompli. I do not intend to reward 
the defendants for their speed, nor do I intend to chastise 
the defendants at the expense of the men who received 
these promotions. Since I do not doubt my jurisdiction to 
alter the 11 promotions to acting status, I will deal with 
these 11 positions as if they were presently vacant and 
exercise equitable discretion without regard to the defen­
dants’ precipitous action.

The choice is between permitting promotions to be made 
in the normal course or requiring promotions on an acting 
basis only until such time as the new minority patrolmen 
(or a substantial number of them) are eligible to be con­
sidered for promotion under the new reduced time-in-grade 
requirement. I do not believe it is a sound exercise of 
discretion to require these eight sergeant positions to be 
held vacant for a prolonged length of time in addition to 
the time they were already held vacant pending the initial 
decision in this suit, nor do I think it advisable to formu­
late a remedy that risks displacing men who would be 
promoted to these positions on an acting basis to meet the 
legitimate needs of the police department. The competing

Memorandum of Decision of District Court



9a

equity, of course, is the chance of hastening the promotion 
of minority sergeants. Since eight positions are involved, 
and the patrolmen ranks will include 15% minority mem­
bers even if the hiring remedy is expeditiously imple­
mented, only one minority patrolman could reasonably be 
expected to secure one of these sergeant promotions if the 
law of averages is working. The adverse consequences of 
the plaintiffs’ proposal is not worth this benefit, which is 
only to advance by one year the time when a minority 
patrolman could be expected to secure promotion.

The relevant factors apply somewhat differently to 
sergeant and detective positions that become vacant one 
year after a significant number of minority patrolmen have 
been appointed. At that point, the reduced time-in-grade 
requirement that the defendants have agreed to implement 
will render the new minority patrolmen eligible for pro­
motion to detective and sergeant. A remedy that insures 
their consideration for promotions occurring thereafter 
does not require the department to hold vacancies open nor 
does it risk displacing men promoted on an acting basis. 
Such a remedy would simply terminate somewhat early 
the validity of existing detective and sergeant lists in 
order to give effect to the new time-in-grade requirement. 
It is true that such a remedy may disappoint the expecta­
tions of those who stand high on the existing sergeant’s 
list and who would have been promoted but for early 
termination of the list’s validity. But these men4 will not,

4 At oral argument, counsel for the named intervening mem­
bers of the police department questioned whether a decree could 
be formulated that altered any of the rights of those who stand 
high on current eligibility lists without such persons being for­
mally joined as parties in this suit. Since the named intervenors 
include members of the department at all ranks, counsel for the 
named intervenors has vigorously asserted the interests of all

Memorandum of Decision of District Court



10a

as with a quota or preference, be rejected because of their 
race. Eather they will simply have to enter a new com­
petition among a field enlarged by both the required 
hiring of minority patrolmen and the reduced time-in-grade 
requirement. If the new time-in-grade requirement is to be 
promptly implemented, then this requirement of a new 
competition would befall any person high on the existing 
eligibility list regardless of race; moreover such persons 
will be entering a competition in which no racial prefer­
ences will exist. If they are better than the then current- 
crop of eligibles, they will still be promoted; if they are 
not, it will not be because of any racial preferences.

III.
Plaintiffs seek to have attorneys’ fees included in the 

costs to which they are entitled as the prevailing party in 
this litigation. There is no doubt that attorneys’ fees can 
be awarded as a matter of discretion in the absence of 
statutory authorization. Sprague v. Ticonic National Bank, 
307 U.S. 161 (1939). And where such discretion is re­
enforced by statute in the context of racial discrimination, 
that discretion is to be generously exercised. Newman v. 
Pi'ggie Park Enterprises, Inc., 390 U.S. 400 (1968). But 
this suit was not brought under Title VII of the Civil 
Rights Act of 1964, 42 U.S.C. § 2000e et seq. It is an action 
under 42 U.S.C. § 1983 to redress the denial of rights se­
cured by the Fourteenth Amendment. While the concept 
of private attorneys general is an important one, engrafting

Memorandum of Decision of District Court

present members of the department, and the existence of this suit 
has been well known to all members of the department, it seems 
appropriate to treat this case as a class action with respect to 
the members of the police department and to consider the class 
as adequately represented by the named intervenors.



11a

it on to § 1983 so as to make attorneys’ fees “ ordinarily” 
recoverable, Newman v. Piggie Park Enterprises, Inc., 
supra, 390 U.S. at 402, would amount to a judicial amend­
ment of § 1983 with a provision Congress has thus far not 
placed there.

The Court of Appeals has recently stated the standard 
for awarding attorneys’ fees in a § 1983 suit to be whether 
bringing the suit was unnecessary and was compelled by 
the defendant’s “unreasonable, obdurate obstinacy.” Stol- 
berg v. Trustees for the State Colleges of Connecticut, 474 
F.2d 485, 490 (2d Cir. 1973). While Stvlberg involved in­
tentional denial of constitutional rights, it will not always 
be necessary to prove intentional discrimination to be en­
titled to attorneys’ fees. But once the claim of discrimina­
tion has been made, there must be some indication that the 
defendant’s decision to resist the claim imposed upon plain­
tiffs an unwarranted burden. That cannot be said in this 
case. Testing employment examinations against the Four­
teenth Amendment is a developing area of the law, and at 
least as of the date when this suit was brought, the defen­
dants’ decision to resist plaintiffs’ suit was not unreason­
able or obstinate. No case in this District had dealt with the 
issues, and only one case in the Court of Appeals was in 
point. Chance v. Board of Examiners, 458 F.2d 1167 (2d 
Cir. 1972). Moreover, this litigation required resolution 
of an issue left unanswered by Chance—namely, whether 
an examination that produced discriminatory results could 
be used where there was some rational relationship to a 
needed aptitude where but adequate evidence of job re­
latedness was lacking. On evidence similar to what was 
presented in this case, municipal employers in the future 
may be held to have resisted subsequent litigation un­
necessarily. These defendants, however, were warranted

Memorandum of Decision of District Court



12a

in litigating without assuming the risk of paying their ad­
versaries’ counsel fees. This does not diminish in any way 
the substantial public service that plaintiffs’ counsel have 
rendered in securing a vindication of their clients’ consti­
tutional rights, a result important not only to plaintiffs but 
to the entire Bridgeport community. Hopefully, when the 
current frictions inevitably created by such litigation have 
eased, this suit will be recognized by all concerned to have 
been in the long-term best interests of the Bridgeport 
Police Department.

Accordingly, the decree previously entered on January 
29, 1973, is modified as follows:

1. Paragraphs 2(b)-2(e) and all references to positions 
above the rank of patrolman in paragraph 2 are deleted.

2. Paragraph 4 is deleted and replaced with the follow­
ing paragraph:

4. This Court’s order of October 19, 1972, tolling as of 
March 6,1972, the period of validity of existing eligibil­
ity lists for the rank of patrolman and detective, is 
modified to provide that the existing eligibility lists 
for the ranks of patrolman, detective, and sergeant are 
valid for use in filling the number of positions for each 
such rank that become vacant within two years of the 
effective dates of such lists, except that the existing 
eligibility lists for the ranks of detective and sergeant 
shall cease to be valid one year after the date on which 
the fifteenth patrolman has been appointed from the 
minority pool.

Memorandum of Decision of District Court



13a

3. New paragraphs 5, 6, 7, and 8 are added as follows:

5. The defendants shall proceed to implement sub­
stantially in conformity with the documents submitted 
and representations made to the Court at the hearing 
on September 11, 1973, both the hiring and promotion 
proposals they have submitted to this Court and the 
proposals of the plaintiffs they have agreed to imple­
ment.
6. In the event that the examination scheduled for 
November 3, 1973, does not produce enough qualified 
minority applicants to bring the number of Black and 
Puerto Rican patrolman up to fifty, defendants will 
submit to this Court additional plans for the addition 
of qualified candidates to the minority pool.
7. The defendants will submit to the Court progress 
reports on November 15, 1973, and at three-month in­
tervals thereafter until paragraph 2(a)(3) has been 
complied with, advising as to the progress made in the 
implementation of this decree.
8. Costs, not including attorneys’ fees, are allowed to 
plaintiffs.

Dated at New Haven, Connecticut, this 3 day of October, 
1973.

/ s /  J o n . 0 .  N e w m a n  
Jon 0. Newman 

United States District Judge

Memorandum of Decision of District Court



14a

UNITED STATES COURT OF APPEALS 

F or t h e  S econd C ircu it

Opinion o f the Court of Appeals

Nos. 898, 899—September Term, 1973.

(Argued April 30, 1974 Decided June 3, 1974.)
Docket Nos. 73-2595, 74-1014

B ridgeport Gtjardians, I n c ., et  a l .,

Plaintiff s- Appellees, 
Cross-Appellants,

—against—

M embers of t h e  B ridgeport C iv il  
S ervice C o m m ission , et a l .,

Defendants-Appellants, 
Cross-Appellees.

B e f o r e  :
W aterm an , F rien dly  and M u l lig a n ,

Circuit Judges.

Appeal and cross-appeal from an order of the United 
States District Court for the District of Connecticut, Jon 
0. Newman, Judge, formulating and implementing remedy 
in employment discrimination action, and denying plaintiffs 
attorneys’ fees.

Affirmed.



15a

I ra  H orow itz and M ic h ael  P. K oskoff , Bridge­
port, Connecticut, for Plaintiffs-Appellees.

J. D an ie l  S agarin , Bridgeport, Connecticut and 
R ichard  S h e im a n , Asst. City Attorney, 
Bridgeport, Connecticut, for Defendants- 
Appellants.

Opinion of the Court of Appeals

M u llig a n , Circuit Judge:

The appeal and cross-appeal here involve litigation 
which was commenced on February 24, 1972, in the United 
States District Court for the District of Connecticut, by 
the Bridgeport Guardians, Inc., the Housing Police 
Benevolent Association and several Black and Puerto 
Rican individuals who had taken but failed merit system 
examinations for initial appointments and promotions 
within the Bridgeport Police Department. The defen­
dants, members and the Director of the Bridgeport Civil 
Service Commission and the Superintendent of the Bridge­
port Police Department, were principally charged with 
administering entrance and promotion examinations which 
discriminated against Black and Spanish speaking per­
sons on the basis of race, color and/or national origin. 
Declaratory and injunctive relief was sought under the 
Civil Rights Acts, 42 U.S.C. §§ 1981, 19831 and the De­
claratory Judgment Act, 28 U.S.C. §§ 2201-02.

On January 29, 1973, Hon. Jon 0. Newman filed a 
Memorandum of Decision, reported at 354 F. Supp. 778,

1 This action was filed before the 1972 amendment to Title YII 
of the Civil Rights Act of 1964, Pub. L. No. 92-261, § '2 (l)-(2 ), 
86 Stat. 103 (March 24, 1972), amending 42 U.S.C. § 2000e(a)~ 
(b)(1970), which had the effect of extending coverage of the Act 
to state and municipal employees.



16a

in which he found that the entrance test was unjustifiably 
discriminatory in effect, but that the plaintiffs had failed 
to sustain their burden of proof with respect to the pro­
motion exam. As a remedy, the district court enjoined 
further use of the entrance examination and imposed hir­
ing and promotion quotas which would have raised the 
level of minority employment within the Department to 
about 15%; the hiring quota was designed to introduce 
50 Black and Puerto Rican patrolmen onto the force.

On June 28, 1973, we issued an opinion, reported at 
482 F.2d 1333, affirming the judgment of the district court 
except with respect to the promotion quotas. We found 
that these were not warranted, but remanded to the dis­
trict court so that it could consider whether other relief 
was appropriate. Familiarity with our prior opinion is 
assumed.

On remand, Judge Newman heard the parties informally 
in open court and in chambers, and on October 3, 1973, 
filed a Memorandum of Decision formulating and imple­
menting a remedy in conformity with this court’s opinion 
that any modification of promotion procedures should 
“ apply to all candidates for promotion irrespective of 
race or ethnic background.” 482 F.2d at 1341. He re­
fused to impose a modified promotion quota or to enlarge 
the hiring quota, but the time-in-grade criterion for eli­
gibility for promotion was reduced from 3 years to 1 year 
and the weighting of seniority, and training, experience 
and general qualifications in the promotion procedure was 
decreased from 40% to 10%. Moreover, the court deter­
mined that the existing eligibility list for the rank of 
sergeant should cease to be valid one year after the date 
on which the 15th minority patrolman is appointed.

Opinion of the Court of Appeals



17a

The plaintiffs urged below and on this appeal that the 
hiring quota should be increased to 75 so that the 15% 
minority level is achieved. We agree with the district 
court that the affirmance of this part of Judge Newman’s 
initial decree by this court was unqualified and we see 
no reason to change the views expressed there. Plaintiffs’ 
claim that the absence of immediate minority group rep­
resentation in supervisory ranks undercuts recruitment 
because of discouragement is effectively answered by the 
fact that some 271 applications were received from minor­
ity members for the examination held after this court’s 
initial decision. 231 took the exam and 81 were success­
ful. After disqualification for failure to meet announced 
requirements as well as to pass physical examinations, an 
eligible list of 35 has emerged.

The defendants have appealed from the determination 
shortening the life of the sergeant’s eligibility list. They 
urge that it is an abuse of discretion since promotion candi­
dates are normally entitled to have their rankings stand 
for a two-year period. We do not agree. The court below 
is familiar with, and sensitive to the issues here, which 
are delicate as well as intricate. There has been, in our 
view, compliance with the decision of this court, and the 
fashioning of the remedy here is a particularly appropriate 
task for the district court. Coalition for Ecluc. in Dist. One 
v. Board of Elections, slip op. 2989, 2996 (2d Cir. April 24, 
1974) {per curiam).

Plaintiffs further urge that the court below abused its 
discretion by refusing to grant counsel attorneys’ fees as 
part of costs. The district court found that it had discre­
tion to award attorneys’ fees, but declined to exercise it 
here since the litigation was not compelled by the defen­
dants’ “unreasonable, obdurate obstinacy,” the test em­

Opinion of the Court of Appeals



18a

ployed by this court in Stolberg v. Trustees for the State 
Colleges of Connecticut,-474 F.2d 485, 490 (1973). While 
attorneys’ fees are permitted in actions brought under 
Title VII of the Civil Eights Act of 1964, 42 U.S.C. § 2000e 
et seq., by express statutory authorization, 42 IJ.S.C. 
§2000e-5(k), the failure of Congress to provide for such 
fees in § 1983 cases is, in our view, significant.2 While we 
do not rule out the possibility that counsel fees might be 
appropriate in some § 1983 cases, even absent statutory 
authority, we see no reason to reverse the determination 
below denying them. In Jordan v. Fusari, slip op. 3059, 
3066 (2d Cir. April 29, 1974), this court remanded the ques­
tion of the propriety of legal fees in a § 1983 action to the 
district court in view of the inadequacy of the record be­
fore the district judge in that case. There is no such prob­
lem here. 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’ claims by the defendants. We do not find 
any abuse of discretion.

Affirmed.

Opinion of the Court of Appeals

2 We do not overlook the Supreme Court’s recent opinion in 
Bradley v. School Bd., 42 U.S.L.W. 4703 (U.S. May 15, 1974), a 
school desegregation case commenced in 1961 under § 1983. The 
Court there held that § 718 of Title V II of the Emergency School 
Aid Act, 20 U.S.C. § 1617, which became effective on July 1, 1972, 
see Pub. L. 92-318, § 2( c ) (1) ,  86 Stat. 236, had application to 
pending litigation and provided a basis for a fee award. Section 
718, however, expressly authorizes the recovery of attorneys’ fees 
in school desegregation suits brought under § 1983. Here no such 
statute exists.



19a

UNITED STATES COURT OF APPEALS 

S econd C ircu it

At a Stated Term of the United States Court of 
Appeals, in and for the Second Circuit, held 
at the United States Court House, in the 
City of New York, on the fifteenth day of 
August, one thousand nine hundred and 
seventy-four.

Present:

H o n . S terry R. W aterm an ,
H o n . H en ry  J . F rien d ly ,
H on. W il l ia m  H. M u llig a n ,

Circuit Judges.
73- 2595,
74- 1014

Order o f the Court o f Appeals Denying Rehearing

B ridgeport G uardians , I n c ., et al.,

Plaintiffs- Appellants, 
Cross-Appellees, 

v.

M embers oe t h e  B ridgeport 
C ivil  S ervice C o m m ission , et al.,

Defendants-Appellees, 
Cross-Appellants.

A petition for a rehearing having been filed herein by 
counsel for the appellants



20a

Order of the Court of Appeals Denying Rehearing

Upon consideration thereof, it is
Ordered that said petition be and hereby is denied.

A. D an ie l  F usaro

Clerk

/ s /  V in c e n t  A. Carlin

By V in c e n t  A. Ca r l in ,
Chief Deputy Clerk



MEILEN PRESS INC. — N, Y. C. 219