Brief for the Lawyers' Committee for Civil Rights Under Law and the American Jewish Committee as Amici Curiae Supporting Appellees

    DONNELL V. UNITED STATES
Clte esGt2 F.2d 2/l{l (lS2)

afi
during the House
s Attorneys' Fees
rh enacted section

:r discrimination
ts of their civil
wealthy people.

have helped them
equently not well
Department does
to bring suit for
ion. Thus, many
'civil rights, may
er be able to do
not right to deny
rrd to pay attor-
bility of justice

rve a valid point
' less compelling
' General partici-
when the Justice
t under section 5

rose whose rights
e said that rights
rf inability to pay

heir role differed
Department be-

'oters in Warren
Department's in-
e there may be

divergence exists
, defendant-inter-
ease here. The

the affirmative ac-

significant, case is
v. Washington, 633
prob. jwis. noted,
A, 70 L.Ed.zd 204
led to have a state
)ct of outlawing the
desegregation pro.
rnal under the four-
t public interest
)rt of the district,
argument that the
onstitutional dual
)t coun found the
ut subsequently re-
ys' fees to interve-
rmed on the merits
fees issue. lt held

i.j

i,

interest of both the Attorney General and

appellees was in preventing a dilution of
biack voting strength. We will not lightly
infer that the Justice Department has vio'

lst€d this statutory obligation. ln discuss-

ing the court's power to prevent interven'

tion in proceedings for a declaratory judg-

ment under section 4(a) of the Voting

Bights Act, which is parallel to the provi-

sion in section 5, Judge Leventhal held for a
three-judge district court:

Congress assigned to the Attorney Gener-

al the primary role in vindicating the

public interest under the Act. We should

be reluctant indeed to permit interven-
tion .. . in the absence of a plausible

claim that the Attorney General is not

adequately performing his statutory
function, and that intprvention is needed

to enable the court properly to perform

its declaratory function or in some other
way to protect the public interest.

However, if the Attorney General has

been derelict or deficient, if the fact-find-
ing process is warped or inadequate, the

court has the authority and indeed may

have the duty to allow intervention to
cure or leave the deficiencies. Such in-
tervention is not to be permitted except

upon a strong showing.l3

t4l Not only is it assumed that the At-
torney General will represent the interest
of black voters, ffrt tt 

" 
ort""*" ,t , a"{*

- atory judgment iuit under section 5 does

*-@lem;p.;
@ judgmententered

under this section shall [not] bar a subse-

that intervenors were entitled to fees on the
second issue, since the school district, like the
city of Detroit in Baker, would not have raised
the argument that the system was unconstitu-
tional. But the Ninth Circuit affirmed the dis-
trict court's decision to deny fees on the first
issue in the case, which was adequatelJ" cover-
ed by the school district. See id. at 1349. The
Ninth Circuit thus held, as we do today, that
intervenors ma;'- be denied fees where their
participation was unnEcessary in light of the
effons of the prevailing governmental litigant.

t3, Apache County- 1'. United States, 256
F.Supp. 903, 908 (D.D.C.1966) (three'judge
court). See a.lso NAACP v. Ne[' \'ork' 413
u.s. 345, 368, 93 S.Ct. 2591, 2604,37 L.Ed.2d
648 (1973) (upholding refusal to allow interven-

quent action to enjoin enforcement of [the
voting] qualification, prerequisite, standard,
practice, or procedure." l{ This further but-
tresses Judge l,eventhal's point that the

need for intervention in a declaratory judg-

ment suit is quite limited. To adopt a

standard that would permit 8n award of
attorneys' fees in every ease in which an

intervenor participated on the side of the

Department of Justice in a successful suit
would encourage intervention even where

there is no special need for it. It may be

that the district courts have gotten away

from Judge l.eventhal's admonition and

have been permitting intervention as a mat-

ter of course, but this is only an additional

reason for carefully evaluating intervenors'
fee requests.

t5l Given this background, we believe

that in considering an int€rvenor's request

for attorneys' fees the district court is obli-
gated to examine the particular role played

by the intervenor in the lawsuit. Although
this question has not been definitely re-

solved before today, analogous holdinp
have been laid down. Courts have held

that one type of "special circumstance" that
creates an exception to the ordinary pre-

sumption in favor of granting attorneys'

fees to a prevailing party is "where, al-

though plaintiffs received the benefits

sought in the lawsuit, their efforts did not

coniribute to achieving those rcsults." l5

An example is where a lawsuit was filed to
achieve an objective that was already being

achieved independently.16 We think the

tion where motion to intervene was untimely,
notin8 that appellants did not substantiate their
claim that the United States inadequately reP
resented their mterests).

14. 42 U.S.C. $ 1973c (1976).

t5. Connor r'. Winter. 519 F.Supp. 1337' 1343

(S.D.Miss. I 98 I ) (three-judge court)

16. See, e.g., Bush v. Ba.r's, 463 F.Supp. 59' 66

(E D.Va.!978) (holding alternativell' that plain-
tiffs *'ere not prevailing panies and that an

award u'ould be unjust under the "special cir-

cumstances" doctrine) ("tt is apparent to the

Coun that the attornet's for the ptaintiffs in
this case merely caught hold of a train on its
waY out of the station and are seeking to ride it