Jones v. The New York City Human Resources Administration Brief of the Defendants as Appellees

    To be argued by 
PAULA J. OMANSKY

UNITED STATES COURT OF APPEALS 
FOR THE SECOND CIRCUIT

JAMES C. JONES, GLORIA DeBERRY, MARY J. ECCLES, 
CHARLOTTE JEFFERSON, ANDREW P. JACKSON each 
individually and on behalf of all others 
similarly situated,

Plaintiffs-Appellees, 
-against-

THE NEW YORK CITY HUMAN RESOURCES ADMINISTRATION, 
JULES M. SUGARMAN, individually and in his 
capacity as Administrator of the New York 
City Human Resources Administration; THE NEW 
YORK CITY DEPARTMENT OF PERSONNEL; THE NEW 
YORK CITY CIVIL SERVICE COMMISSION; HARRY 
I. BRONSTEIN, individually and in his capaci­
ties as Director of the New York City Depart­
ment of Personnel and Chairman of the New York 
City Civil Service Commission; and JAMES W. 
SMITH and DAVID STADTMAUER, each individually 
and in his capacity as Civil Service Commis­
sioner ,

Defendants-Appellants.

On Appeal from the United States District Court 
for the Southern District of New York

(Additional title appears on next page)

BRIEF OF THE DEFENDANTS AS APPELLEES

W. BERNARD RICHLAND,
Corporation Counsel,
Attorney for Defendants-Appellants, 
Municipal Building,
New York, N.Y. 10007 
(212) 566-4337 or 566-4514

L. KEVIN SHEIRDAN, 
PAUL J. OMANSKY,

Of Counsel.



DOROTHY WILLIAMS, JOHN GOYCO and JOHNNIE McCOY, 
each individually and on behalf of all others 
similarly situated,

Plaintiffs-Appellees, 
-against-

THE NEW YORK CITY HUMAN RESOURCES ADMINISTRATION, 
JULES M. SUGARMAN, individually and in his 
capacity as Administrator of the New York 
City Human Resources Administration; THE NEW 
YORK CITY DEPARTMENT OF PERSONNEL; THE NEW 
YORK CITY CIVIL SERVICE COMMISSION; HARRY 
I. BRONSTEIN, individually and in his capaci­
ties as Director of the New York City Depart­
ment of Personnel and Chairman of the New York 
City Civil Service Commission; and JAMES W. 
SMITH and DAVID STADTMAUER, each individually 
and in his capacity as Civil Service Commis­
sioner ,

Defendants-AppeHants.



TABLE OF CONTENTS
Page

Preliminary Statement------------ ---------- -—  2

Facts — -—   — -— —   --- --------- -—    ------  2

ARGUMENT:
The District Court properly denied 
plaintiffs’ application for an award 
of attorneys' f e e s -------------------- 5

Conclusion 7



TABLE OF CASES
Page

Alyeska Pipeline Service Co. v . Wilderness
Society, ______ U. S . _____  (197 5), 43
U. S . L . W. 4561 ........................ ....... 5

Bridgeport Guardians, Inc. v. Bridgeport Civil 
ServTce Comm'!lT7"W7~~FT 2d T il 3 ( 2d’" Cir 7 
1974) . . s o . . . 4

Jordan v. Fusari, 
1974) .......

496 F. 2d 646 (2d Cir
4

Kirkland v. New York State Dept, of Correc­
tional Services,  ___ F. 2d ______  (2d Cir.
August 6 , 1975), slip op. 5397..............  5, 7



UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

JAMES C. JONES, GLORIA DeBERRY, MARY J. ECCLES, 
CHARLOTTE JEFFERSON, ANDREW P. JACKSON each 
individually and on behalf of all others 
similarly situated,

Plaintiffs-Appellees, 
--against”

THE NEW YORK CITY HUMAN RESOURCES ADMINISTRATION, 
JULES M. SUGARMAN, individually and in his 
capacity as Administrator of the New York 
City Human Resources Administration; THE NEW 
YORK CITY DEPARTMENT OF PERSONNEL; THE NEW 
YORK CITY CIVIL SERVICE COMMISSION; HARRY 
I. BRONSTEIN, individually and in his capaci­
ties as Director of the New York City Depart­
ment of Personnel and Chairman of the New York 
City Civil Service Commission; and JAMES W. 
SMITH and DAVID STADTMAUER, each individually 
and in his capacity as Civil Service Commis­
sioner ,

Defendants-Appellants.

DOROTHY WILLIAMS, JOHN GOYCO and JOHNNIE McCOY, 
each individually and on behalf of all others 
similarly situated,

Plaintiffs-Appellants, 
-against-

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THE NEW YORK CITY HUMAN RESOURCES ADMINISTRATION, 
JULES M. SUGARMAN, individually and in his 
capacity as Administrator of the New York 
City Human Resources Administration; THE NEW 
YORK CITY DEPARTMENT OF PERSONNEL; THE NEW 
YORK CITY CIVIL SERVICE COMMISSION; HARRY 
I. BRONSTEIN, individually and in his capaci­
ties as Director of the New York City Depart­
ment of Personnel and Chairman of the New York 
City Civil Service Commission; and JAMES W. 
SMITH and DAVID STADTMAUER, each individually 
and in his capacity as Civil Service Commis­
sioner ,

Defendants-Appellants.

On Appeal from the United States District Court 
for the Southern District of New York

BRIEF OF THE DEFENDANTS AS APPELLEES

Preliminary Statement 
Defendants here reply to the brief sub­

mitted by plaintiffs on their cross-appeal from 
the District Court's denial of their request for 
an award of attorney's fees* The facts relating 
to the substantive issues decided by the district 
Court are set forth in defendants' main brief.

FACTS
In its opinion dated January 10, 1975, 

the District Court denied plaintiffs' request for

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an award of reasonable attorneys’ fees ( 365)*. The
Court explained its reasons as follows:

"Although counsel fees were 
awarded in Kirkland, 374 F.
Supp. at 1380-1382, they are 
not appropriate in the present 
suit. Kirkland involved an ex­
amination for the position of 
correction sergeant, whose pre­
paration did not present the 
uniquely difficult problems 
involved in testing for the 
titles in issue here. Moreover, 
while in Kirkland there was an 
almost complete failure of proof 
on the issue of job-relatedness, 
we are impressed in the present 
case by the sincere efforts of 
Rosenberg and Willingham to 
construct tests in accordance 
with the stringent legal stand­
ards applicalbe in this Circuit, 
however inadequate the examina­
tions proved to be."
After decision, plaintiffs moved pursuant 

to Rule 54(b), Federal Rules of Civil Procedure, for 
an Order revising the opinion by striking from it 
the paragraph relating to plaintiffs' request for 
counsel fees, and substituting a statement that the 
Court reserved decision on that issue pending clari­
fication of the applicable law by the Court of Appeals 
for this Circuit and the Supreme Court (367a). That 
motion was denied in a Supplemental Opinion dated March 
19, 1975 (366a-370a).

In the Supplemental Opinion the District

*Re'ference in parenthesis are to the Joint Appendix, 
Volume II.

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Court discussed this Court's opinions on attorneys' 
fees in the two cases following its decision Kirk­
land , namely Jordan v. Fusari, 496 F. 2d 646 (2d Cir. 
1974), and Bridgeport Guardians, Inc, v. Bridgeport 
Civil Service Comro'n, 497 F. 2d 1113 (2d Cir. 1974). 
It stated (369a-370a)%

"As we read Jordan and Bridgeport 
Guardians, the Court of Appeals - 
If it holds that awards are avail­
able at all in §1983 cases - would 
not award them virtually as a matter 
of right, as in cases involving 
explicit statutory authorization.
Following the suggestion of the 
Court of Appeals in Bridgeport 
Guardians, supra, we believe that 
the proper standard for awards in 
§1983 cases lies somewhere in be­
tween "automatic" awards and those 
available only on the very stiff 
showing of defendants' bad faith.
This is the standard we applied - 
and intended to apply - in Jones 
in declining plaintiffs' request 
on the ground that defendants had 
made reasonable efforts to comply 
with constitutional requirements 
which, in the field of civil ser­
vice testing, appear to be un­
usually difficult to satisfy."

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ARGUMENT
THE DISTRICT COURT PROPERLY DENIED 
PLAINTIFFS' APPLICATION FOR AN 
AWARD OF ATTORNEYS' FEES.
Plaintiffs' first point is that attorneys' 

fees should be awarded "as a matter of course" in a 
§1982 action (Brief, p. 5). Just the opposite is 
true: subject to only very limited exceptions,
attorneys' fees should not be awarded the successful 
litigant in federal court in the absence of specific 
statutory authorization. Alyeska Pipeline Service 
Co. v. Wilderness Society, 43 U.S.L.W. 4561 (U.S. May 
12, 1975). Only very recently, relying on Alyeska, 
this Court reversed the District Court's award of 
attorneys' fees in a §1983 action. Kirkland v. New
York State Dept, of Correctional Services, ____  F.

2d _____ _ (August 6, 1975), slip op. 5397.
Plaintiffs' second point is that they are 

entitled to attorneys' fees under the "common bene­
fit" exception recognized by the Supreme Court in 
Alyeska. The Supreme Court did not have occasion in 
that case to rule directly on this point, since, as 
it stated, the lower court had itself rejected any 
application of the "common benefit" exception as the 
basis of an award of attorneys' fees on the ground 
that it would "stretch it totally outside its basic 
rationale". Alyeska Pipeline Service Co. v. Wilder­
ness Society, 43 U.S.L.W. supra at 4563. The Supreme

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Court later pointed out how inappropriate the common 
benefit approach is to litigation in which the pur­
ported benefits accrue to the general public (43 
U.S.L.W. at 4569 , n. 39):

"In this Court's common fund, and 
common benefit decisions, the class 
of beneficiaries was small in number 
and easily identifiable. The bene­
fits could be traced with some 
accuracy, and there was reason for 
confidence that the costs could in­
deed be shifted with some exacti­
tude to those benefiting. In this 
case, however, sophisticated eco­
nomic analysis would be required 
to gauge the extent to which the 
general public, the supposed bene­
ficiary, as distinguished from 
selected elements of it, would 
bear the costs."

Such considerations mandate rejection of the common 
benefit approach as a basis of an award of attorneys' 
fees in a §1983 action.

Finally, plaintiffs argue that the District 
Court abused its discretion in refusing to find that 
the defendants had acted in bad faith in litigating 
this case. The complexity of the problems at issue 
in this case are demonstrated by defendants' main 
brief and were specifically adverted to by the Dis­
trict Court in denying an award of fees (365a). Dur­
ing the course of the litigation and even in their 
post-decision motion, it had not occurred to plain­
tiffs to raise any issue of bad faith. Under these 
circumstances, there is presented no basis for an

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award of counsel fees on this theory. Cf. Kirkland, 
supra, slip op. at 5415.

The District Court's denial on two separate 
occasions of plaintiffs' request for an award of 
attorneys' fees should be sustained.

CONCLUSION
THE ORDER APPEALED FROM INSOFAR AS 
IT DENIED PLAINTIFFS' REQUEST FOR 
COUNSEL FEES SHOULD BE AFFIRMED.

September 26, 1975

Respectfully submitted,
W. BERNARD RICHLAND 
Corporation Counsel 
Attorney for Defendants- 
Appellants-Appellees 

Municipal Building 
New York, N.Y. 10007

L. KEVIN SHERIDAN, 
PAULA J. OMANSKY,

Of Counsel.

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