Independent Federation of Flight Attendants v. Zipes Brief for Respondents

    No. 88-608

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IN D EPEN D EN T FEDERATION OF 
FLIGHT ATTENDANTS,

Petitioner,
v,

ANNE B. ZIPES, e t al.
Respondents.

On Writ of Certiorari to the United States 
Court of Appeals for the Seventh Circuit

B R IEF FOR RESPONDENTS

Aram A. Hartunian*
Robert M. Weissbourd 
P hyllis L. Crocker 
Hartunian, Futterman & 

Howard, Chtd.
Suite 1850
122 South Michigan Avenue 
Chicago, IL 60603 
(312) 427-3600

Kevin  M. F orde 
Katrina Veerhusen 
Kevin M. Forde, Ltd.

Suite 1100
111 West Washington Street 
Chicago, IL 60602 
(312) 641-1441

Attorneys for Respondents

* Counsel of Record

American Reprographics Management, Inc.™ (312) 332-ARMI (800-999-6239)



QUESTION PRESENTED

The question presented is fairly stated by Amicus United 
States and the Equal Employment Opportunity Commission 
(“amicus E.E.O.C.” herein).



TABLE OF CONTENTS

Page

STATEMENT OF FACTS........................................................... 1

SUMMARY OF ARGUMENT .................................................... 3

I. THE CONGRESSIONAL PURPOSE OF ENCOURAG­
ING PRIVATE PLAINTIFFS WOULD BE FRUS­
TRATED IF ATTORNEYS’ FEES WERE NOT 
FORTHCOMING AT THE VITAL STAGE OF 
FASHIONING RELIEF.........................................  5

H. LIABILITY FOR FEES IS NOT RESTRICTED TO 
DEFENDANT-WRONGDOERS ............................  6

Introduction ...........        6

A. The Statute Makes No Connection Between
Wrongdoing And Liability For F e e s ..............  6

B. There Is No Basis For Exempting Inter-
venors From § 706(k)...............................     10

HI. THE UNION WAS NOT A FUNCTIONAL
PLAINTIFF....... .......................................................  12

IV. IN A CONTEST BETWEEN TWO GENUINE PLAIN­
TIFFS, THE LOSING PLAINTIFF SHOULD PAY 
THE ATTORNEYS’ FEES OF THE WINNING 
PLAINTIFF ....................................................   16

A. In Contests Between Plaintiffs, The Defensive
Protection Of Christiansburg Should Be 
Eliminated .............................................................   16

B. Attorneys’ Fees For The Work Made Neces­
sary By A Plaintiff-Intervenor Should Not
Be Imposed On The Original Defendant . . . . . . . . . .  17

CONCLUSION..................................................   19

11



U1

TABLE OF AUTHORITIES

Cases: Page

Air Line Stewards and Stewardesses Ass’n, Local 550
v. Trans World Airlines, Inc., 713 F.2d 319 (7th Cir. 1983)....... 1

Air Line Stewards And Stewardesses Ass’n, Local 550 
v. American Airlines And Trans World Airlines, 490 F.2d 
636 (7th Cir. 1973), cert, denied, 416 U.S. 993 (1974).............. 2

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975).................. 5

Akron Center for Reproductive Health v. City of Akron,
604 F. Supp. 1268 (N.D. Ohio 1984)...................................... 10

Allen v. Terminal Transport Co., 653 F.2d 1016
(5th Cir. 1981), cert, denied, 455 U.S. 989 (1982)..................  10

ALSSA v. TWA, 630 F.2d 1164 (7th Cir. 1980), aff’d,
sub nom. Zipes v. TWA, 455 U.S. 385 (1982)................  2, 3,17

Alyeska Pipeline Service Co. v. Wilderness Society,
421 U.S. 240 (1975)...................................................... 6, 7, 8,11

Annunziato v. The Gan, Inc., 744 F.2d 244 (2d Cir. 1984).......  10

Avoyelles Sportsmen’s League v. Marsh, 786 F.2d 631 
(5th Cir. 1986)...................    18

Baker v. City of Detroit, 504 F. Supp. 841 (E.D. Mich. 1980), 
aff’d, sub nom. Bratton v. City of Detroit, 704 F.2d 878,
(6th Cir. 1983), cert, denied, 464 U.S. 1040 (1984)............... 16

Charles v. Daley, 846 F.2d 1057 (7th Cir. 1988), petition for 
cert, filed 57 U.S.L.W. 3314 (Oct. 20,1988)
(No. 88-664).........................................................................  7,10

Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412 
(1978)................................................................................passim

In re Consolidated Pretrial Proceedings in the Airline 
Cases, 582 F.2d 1142 (7th Cir. 1978), rev’d, sub nom.
Zipes v. TWA, 455 U.S. 385 (1982) 2



Decker u. U.S. Dept, of Labor, 564 F. Supp. 1273
(E.D. Wis. 1983) ....................... ............................................ 10

Fleischmann Distilling Corp. v. Maier Brewing Co.,
386 U.S. 714 (1967) ...................... .......................................... 8

Franks v. Bowman Transportation Co., 424 U.S. 747 
(1976)....................... ............. .................................... . 5, 9

Grano u. Barry, 783 F.2d 1104 (D.C. Cir. 1986).......................  12

Haycraft u. Hollenbach, 606 F.2d 128 (6th Cir. 1979) . . . . . . . .  10

Kentucky v. Graham, 473 U.S. 159 (1985)............................ 8

Kirkland u. New York State Dept, of Correctional Services,
524 F. Supp. 1214 (S.D.N.Y. 1981) .................................. . 12

May v. Cooperman, 578 F. Supp. 1308 (D.N.J. 1984)......... . 10

Moten v. Bricklayers, Masons and Plasterers, 543 F.2d 224 
(D.C. Cir. 1976)......................................................................  10

Natural Resources Defense Council, Inc. v. Thomas,
801 F.2d 457 (D.C. Cir. 1986).............•.................................. 10

Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400
(1968).................     .5

Pennsylvania v. Delaware Valley Citizens’ Council, 478 
U.S. 546 (1986) .............. ........................................... 11

Planned Parenthood v. Citizens For Community Action,
558 F.2d 861 (8th Cir. 1977) .................................................... 7

Planned Parenthood Ass’n v. Commonwealth of Pa.,
508 F. Supp. 567 (E.D. Pa. 1980) ...........................................  10

Prate v. Freedman, 583 F.2d 42 (2d Cir. 1978) .................. . 16

Reeves v. Harrell, 791 F.2d 1481 (11th Cir. 1986), cert, denied,
479 U.S. 1033 (1987)..............    12

Rich v. United States, 417 U.S. 116 (1974) ..............................  14

iv

Page



V

Richardson v. Alaska Airlines, Inc., 750 F.2d 763
(9th Cir. 1984) ........................................................................ 10

Robideau v. O’Brien, 525 F. Supp. 878 (E.D. Mich. 1981)....... 10

S&R Wrecker Service, Inc. v. Mecklenburg County, 652
F. Supp. 527 (W.D.N.C. 1987) ............................................... 10

Sierra Club v. EPA, 769 F.2d 796 (D.C. Cir. 1985) ..................  10

Sims v. Amos, 340 F. Supp. 691 (M.D. Ala.), aff’d mem.,
409 U.S. 942 (1972)................................................................. 11

Thompson v. Sawyer, 586 F. Supp. 635 (D.D.C. 1984)............. 10

Tunstall v. Office of Judicial Support, 820 F.2d 631
(3d Cir. 1987).........................................................................  10

United States v. Turkette, 452 U.S. 576 (1981)...........................6

Vulcan Society of Westchester County, Inc. v. Fire 
Department of the City of White Plains, 533 F. Supp.
1054 (S.D.N.Y. 1982) ............................................    10

Wilderness Society v. Morton, 495 F.2d 1026 (D.C. Cir. 1974), 
rev’d on other grounds, sub nom. Alyeska Pipeline 
Service Co. v. Wilderness Society, 421 U.S. 240 (1975).........7

Wis. Socialist Workers 1976 Campaign Comm. v. McCann,
460 F. Supp. 1054 (E.D. Wis. 1978).......................................  10

Zipes v. Trans World Airlines, 455 U.S. 385
(1982) ....................................................................  2,3,9,13,15

Statutes and rules:

Age Discrimination in Employment Act, 29 U.S.C.
§ 626(b).................................................................................... 10

Civil Eights Act of 1964, 42 U.S.C. § 2000e, et seq......................4

Civil Rights Act of 1964:

§ 706(g), 42 U.S.C. § 2000e-5(g)....................................... 11,13

§ 706(k), 42 U.S.C. § 2000e-5(k) ................................... passim

Page



V I

Clean Water Act, § 505(d), 33 U.S.C. § 1365(d)........................ 10

Fair Labor Standards Act, 29 U.S.C. § 216(b)......................... 10

Federal Water Pollution Control Act, 33 U.S.C. § 1367(c)....... 10

Toxic Substances Control Act, 15 U.S.C. § 2605(c) (4) (A). . . . .  14

42 U.S.C. § 1988 .................................................... ......... passim

Rule 23(e), Fed.R.Civ.P. ....................................................... . 3

Miscellaneous:

H.R. Rep. No. 1558, 94th Cong., 2d Sess. (1976) ...................... 11

S. Rep. No. 1011, 94th Cong., 2d Sess. (1976) .................. .. 11,12

Note, Attorney’s Fees: Where Shall The Ultimate Burden Lie?, 
20 Vand. L. Rev. 1216 (1967) .................................................. 8

Page



No. 88-608

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INDEPENDENT FEDERATION OF 
FLIGHT ATTENDANTS,

Petitioner,
v.

ANNE B. ZIPES, et al.
Respondents.

On Writ of Certiorari to the United States 
Court of Appeals for the Seventh Circuit

BRIEF FOR RESPONDENTS

STATEMENT OF FACTS

Before 1970, Trans World Airlines fired stewardesses who 
became pregnant or adopted children, but not male employees 
who became parents. On August 8, 1970, the union1 filed the 
complaint, alleging discrimination in violation of Title VII. Air 
Line Stewards And Stewardesses Ass’n, Local 550 v. Trans World 
Airlines, Inc., 713 F.2d 319, 320 (7th Cir. 1983).

The union members were incumbent stewardesses as to 
whom only prospective relief was warranted. In the lawsuit, the 
union also purported to represent the previous, illegally fired, 
stewardesses who were no longer union members. In July 1971, 
the union entered into a settlement agreement with TWA that 
obtained the prospective relief desired by the incumbents but 
provided the former stewardesses with no back pay, retroactive

1 The union w as then the predecessor to Petitioner IFFA. These 
successive representatives of incumbent stewardesses are referred to 
herein as “the union”.



2

seniority (either company seniority or competitive seniority), or 
even the right to return to work except as openings might occur. 
Air Line Stewards A nd Stewardesses A ss ’n, Local 550 v. 
American Airlines And Trans World Airlines, 490 F.2d 636, 638 
(7th Cir. 1973), cert, denied, 416 U.S. 993 (1974). Because of the 
union’s conflict of interest and its refusal to give opt-out notices 
to the former stewardesses, the Seventh Circuit vacated the 
District Court’s approval of the settlement, ejected the union as 
the class representative, and remanded for resolution of the 
merits. Id. at 640, 643.

After remand, plaintiffs obtained summary judgment. On 
appeal, the Seventh Circuit affirmed on the merits but reversed 
as to those class members who did not file timely EEOC charges. 
In re Consolidated Pretrial Proceedings in the Airline Cases, 582 
F.2d 1142 (7th Cir. 1978), rev’d, sub nom. Zipes v. TWA, 455 
U.S. 385 (1982). The mandate was stayed and both sides filed 
petitions for certiorari. This Court granted a motion to defer 
consideration of the certiorari petitions, pending effectuation of 
a settlement which was then being negotiated.

A settlement was approved by the District Court which 
provided for $3,000,000 in back pay, reinstatement, retroactive 
company seniority and (as amended, J.A. 27)2 such retroactive 
competitive seniority as the District Court might order after a 
hearing in which the union participated. ALSSA u. TWA, 630 
F.2d 1164, 1166 (7th Cir. 1980). The class was divided into Sub- 
Class A (those who had filed timely charges) and Sub-Class B 
(those who did not). Id. at 1166.

At the suggestion of plaintiffs, the union was invited to take 
part in a hearing on the question of competitive seniority. Instead, 
the union filed a full-blown petition to intervene, claiming that 
the court lacked jurisdiction over the claims of Sub-Class B, that 
the settlement could not be approved without the union’s consent, 
and that any grant of retroactive seniority would impermissibly 
infringe upon the contract rights of the incumbents. (J.A. 23 f f  
11, 16, 18) If the union had its way, the settlement would have

2 Citations to the Joint Appendix are “(J.A .___ )”, and to the Appendix
to Petitioner’s Certiorari Petition as “(P .A ___ )”.



3

been held for naught, and the plaintiffs and TWA would have 
been forced to continue litigating the claims on the merits (and 
the question of jurisdiction) to the bitter end, in a winner-take- 
all contest. (J.A. 32)

The District Court rejected the union’s jurisdiction objection 
(J.A. 30) and, after three days of evidentiary hearings (P.A. 4a), 
entered two orders. In one, the settlement was approved under 
Rule 23(e), Fed.RCiv.P. (J.A. 35-36) In the other order, the District 
Court concluded that granting retroactive competitive seniority 
would not have an unusual adverse impact on the incumbents 
in an untypical way, and accordingly ordered that all re-employed 
class members be credited with full competitive seniority 
retroactive to the dates when they would have returned to work 
(upon completion of pregnancy leaves) in the absence of TWA’s 
no-mothers policy. (J.A. 37-38)

The union appealed not only from the seniority order, but 
also from the orders which approved the settlement and rejected 
the union’s jurisdictional challenge. The Seventh Circuit 
affirmed, ALSSA v. TWA, 630 F.2d 1164 (7th Cir. 1980), and 
the union obtained certiorari. This Court affirmed those orders, 
and reversed the earlier Seventh Circuit holding regarding subject 
matter jurisdiction. Zipes v. Trans World Airlines, 455 U.S. 385 
(1982).

Because of the union’s intervention and appeals, the plaintiff 
class’ ultimate enjoyment of the settlement’s benefits was delayed 
and came at a greatly increased cost. (P.A. 35a) On July 16, 
1986, the District Court’s amended order required the union to 
pay a total of $180,915.84 for plaintiffs’ attorneys’ fees and $5,978 
for expenses. (P.A. 37a, 40a)3

SUMMARY OF ARGUMENT

1. The Congressional purpose underlying § 706(k), 42 U.S.C. 
§ 2000e-5(k), is to enable Title VII victims to obtain lawyers,

3 $57,258 thereof is for the work of counsel for Sub-Class A, who have 
already been paid from the $3,000,000 settlement fund for their work 
in fighting with the union. If plaintiffs prevail here, this amount will 
be refunded to the members of Sub-Class A  (P.A 37a)



4

thereby facilitating private enforcement of the Civil Rights Act 
of 1964, 42 U.S.C. § 2000e et seq. Since rightful place seniority 
is a vital part of the relief available under Title VII, Congress’ 
intention to ensure the payment of a plaintiffs legal fees must 
be applied to the relief stage as well as to the liability phase 
of the case.

2. The fee-shifting provision is neither punitive nor limited 
to wrongdoing defendants. It is to encourage plaintiffs to 
vindicate a national policy of the highest priority. While 
Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412 (1978), 
observed that fee awards are ordinarily imposed on violators 
of the law, this Court did not hold th a t wrongdoing is a 
precondition for fee awards to plaintiffs.

3. Congress intended that plaintiffs pay defendants’ attor­
neys’ fees only in groundless suits, in order not to discourage 
potential plaintiffs. That being the underlying purpose of a 
p la in tif fs  semi-im m u n ity  for a defendant’s fees, it is applicable 
only when he is genuinely a plaintiff — that is, when he seeks 
redress for a violation of either Title VH or some other federal 
statute which carries a similar fee-shifting provision. The union 
was not a “functional plaintiff’ because it neither asserted a 
violation of, nor a right to relief under, Title VII or any other 
fee-shifting statute. Moreover, the history of this case, including 
the union’s litigation posture at the relief stage, demonstrates 
that the union was a functional defendant. The union’s interests 
were diametrically opposed to the plaintiffs; the union presented 
the only opposition to plaintiffs’ obtaining complete relief; and 
the union’s efforts were aimed at destroying plaintiffs’ entire case. 4

4. The rare case in which the opposing parties are both 
seeking redress from each other for violations of Title VII (or 
some other statute with a fee-shifting provision) would not be 
resolvable by the scriptures of Christiansburg. In such a case, 
the policy considerations underlying § 706(k) require tha t 
attorneys’ fees for work made necessary by an intervenor should 
be borne by the intervenor rather than the winning plaintiff. 
Reasons of policy also militate against imposing plaintiffs’ 
attorneys’ fees on the defendant for work made necessary by 
an intervenor.



5

I

TH E CONG RESSIO N A L P U R PO S E  OF 
ENCOURAGING PRIVATE PLAINTIFFS 
WOULD BE FRU STRA TED  IF  ATTOR­
NEYS’ FEES WERE NOT FORTHCOMING 
AT THE VITAL STAGE OF FASHIONING 
RELIEF

The two central goals of the Civil Rights Act of 1964 were 
to eradicate discriminatory practices and make persons whole 
for injuries suffered by reason of unlawful employment practices. 
Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975). Rec­
ognizing that enforcement of the Act would be largely dependent 
upon private plaintiffs, who typically lack the means to attract 
competent lawyers, Congress intended § 706(k)4 to encourage the 
bringing of private actions in order to facilitate enforcement of 
Title VII. See Christiansburg Garment Co, v. E.E.O.C., 434 U.S. 
412, 420 (1978) (citing 110 Cong. Rec. 12724 (1964) (remarks of 
Sen. Humphrey)); Newman u. Piggie Park Enterprises, Inc., 390 
U.S. 400, 401-402 (1968).

The legal services performed at the relief stage comprise an 
important aspect of Title VII enforcement. In particular, seniority 
is a vital part of the make-whole remedy of Title VII. Franks 
v. Bowman Transportation Co., 424 U.S. 747,774 (1976). Lawyers 
will not be attracted as easily if they cannot expect payment 
for the work at the relief stage. Thus, ensuring the payment of 
plaintiffs’ attorneys’ fees for the work involved in a seniority 
dispute is critical. Since the fee-shifting scheme was designed 
to encourage a p laintiffs obtaining benefits to the public, 
requiring victorious plaintiffs to bear the costs of that significant 
a part of the proceeding could not be squared with Congress’ 
purpose.

Every Title VII plaintiff (and his lawyer) should anticipate 
the performance of substantial legal services even after the 
defendant’s violation is proved. At the stage when relief must 
be fashioned, the plaintiff will frequently encounter opposition

42 U.S.C. § 2000e-5(k).



6

from non-defendant parties. This case serves as an instructive 
example. After the settlement with TWA in 1979, four years 
elapsed before the plaintiffs enjoyed the first benefit of that 
settlement.* 4 5 And from that time until the plaintiffs’ lawyers 
obtained a fee award against the union in 1986 for those 4 years 
of work, another 2 years elapsed.

To the extent this case is any guide, if attorneys’ fees were 
not recoverable for post-settlement work, it would serve as a 
serious disincentive, which cannot be reconciled with either the 
language or purpose of § 706(k).

II

L IA B ILIT Y  FO R  FE E S IS NOT R E ­
STR IC TED  TO D EFEN D A N T-W RO N G ­
DOERS

Introduction

Someone will inevitably bear the costs of necessary legal 
services. Inasmuch as the performance of legal representation 
in itself incurs a cost, the question is not whether that cost must 
be borne, but upon whom the burden should fall.

A. T he S ta tu te  M akes N o C o n n ec tio n  
Betw een W rongdoing And Liability For 
Fees

As this Court held in Alyeska Pipeline Service Co. v. 
Wilderness Society, “the circumstances under which attorneys’ 
fees are to be awarded and the range of discretion of the courts 
in making those awards are matters for Congress to determine.” 
421 U.S. 240, 262 (1975). The interpretation of the statute begins, 
as it must, with the language of the statute. United States v. 
Turkette, 452 U.S. 576, 580 (1981). Section 706(k) provides that 
“the court, in its discretion, may allow the prevailing party . . . 
a reasonable attorney’s fee.” In the absence of wording to the 
contrary, the natural and logical meaning of those words is that

5 As shown post (at 13-14), it was not merely a matter of waiting those
4 years. Plaintiffs were required to fend off the union in order to succeed
at all.



7

the party who must pay a winning plaintiffs attorneys’ fees 
is the party against whom the plaintiff prevailed.6 Plaintiffs here 
are indisputably the “prevailing party”.

The argument of the union and amicus E.E.O.C. th a t 
“innocent” intervenors are not liable for attorneys’ fees is 
premised on the notion that Congress designed § 706(k) to punish 
violators of Title VTL That reading of § 706(k) is not warranted 
because this section was intended to facilitate private enforce­
ment, not to punish violators.7 To interpret it as the union and 
amicus E.E.O.C. want would require reading § 706(k) as though 
it states “the court may allow the prevailing party a reasonable 
attorney’s fee against the party found guilty of violating the 
statute”, words which are conspicuously absent.

Fee shifting ordinarily is intended to ensure that those who 
act in the public interest will not be forced to shoulder the cost 
of litigation, rather than to punish law violators. Wilderness 
Society v. Morton, 495 F.2d 1026, 1036 (D.C. Cir. 1974), rev’d 
on other grounds, sub nom. Alyeska Pipeline Service Co. v. 
Wilderness Society, 421 U.S. 240 (1975). Nothing in § 706(k) or 
its legislative history indicates that Congress thought otherwise. 
On the contrary, in enacting 42 U.S.C. § 1988 Congress was 
fully aware of the opinion in Wilderness Society which preceded 
this Court’s decision in Alyeska.

In deciding that a winning defendant should not ordinarily 
get its fees paid by the plaintiff, this Court mentioned two 
considerations, both of which support fee awards to winning 
plaintiffs in the usual case: (1) a Title VII plaintiff is the chosen 
instrument of Congress to vindicate a policy that Congress 
considered of the highest priority and (2) when a plaintiff is 
awarded attorneys’ fees, they are awarded against a violator

6 As stated in Charles v. Daley, 846 F.2d 1057, 1064 (7th Cir. 1988), 
petition for cert, filed, 57 U.S.L.W. 3314 ((Dct. 20, 1988) (No. 88-664), the 
only question is: “Did the p laintiffs in  fact prevail against the 
intervenors?”

7 As explained in Planned Parenthood v. Citizens For Community 
Action, 558 F.2d 861, 871 (8th Cir. 1977), “an award of attorneys’ fees 
is compensatory, not punitive.”



8

of federal law. Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 
412, 418 (1978). However, this Court did not hold tha t both 
considerations are required, only that both considerations are 
ordinarily present and that both of those considerations militate 
in the same direction. In Christiansburg, the fact that both 
considerations were absent fortified the decision not to require 
plaintiff to pay the defendant’s fees. But nothing in Christians­
burg indicates that one of them is not enough. And while both 
of those considerations are ordinarily present, the private 
plaintiff’s incentive to enforce an important national policy is 
clearly the more important.

As this Court observed, the two purposes that emerge from 
the legislative history are:

First, Congress desired to “make it easier for a plaintiff 
of limited means to bring a meritorious suit” [and] 
second, . . . Congress intended to “deter the bringing 
of lawsuits without foundation.”

Id. at 420. Those are, indeed, the only two purposes of § 706(k) 
— not to punish law violators.8

Absent fee-shifting, a winning plaintiffs recovery is dim­
inished by the expense he incurs in order to obtain the relief 
sought. This is the major criticism of the American Rule.9 But 
the American Rule may be changed by statute or contract. 
Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 
717 (1967). Once the American Rule is reversed, as it has been 
under Title VII (at least for plaintiffs), a losing party can no 
longer enjoy its protection. The losing side perforce becomes 
obligated to repay the winning plaintiff s attorneys’ fees, simply 
because the loser’s opposition is what caused those attorneys’ 
fees to become necessary.

8 Kentucky v. Graham, 473 U.S. 159 (1985), is inapposite because the 
plaintiff there did not prevail against the defendant against whom fees 
were sought.

9 See authorities listed generally in Alyeska Pipeline Service Co. v. 
The Wilderness Society, 421 U.S. 240, 270 n.45 (1975); Note, Attorney’s 
Fees: Where Shall The Ultimate Burden Lie?, 20 Vand. L. Rev. 1216 
(1967).



9

The union’s argument that it is not liable under § 706(k) 
because it was innocent of the underlying violation is flawed 
in the same respect as was its defense in Zipes v. Trans World 
Airlines, 455 U.S. 385 (1982). In Zipes, the union resisted the 
relinquishment of a small portion of each of the incumbent’s 
seniority on the ground that the union itself had not been found 
guilty of discrimination, a contention which this court found 
“meritless”. Id. at 399. Six years earlier, Franks u. Bowman 
Transportation Co., 424 U.S. 747 (1976), held that seniority relief 
cannot be denied to Title VII victims on the ground that it 
diminishes the expectations of innocent incumbents, because that 
would frustrate the make whole objective of Title VII. Id. at 774.

This situation is analogous to recovery from an “innocent” 
bona fide purchaser of an article that was stolen from the plaintiff. 
It is the plaintiffs superior right to the thing in the hands of 
the innocent converter that controls; the absence of fault on the 
part of the converter is irrelevant. Just as the plaintiffs had a 
superior right to the seniority held by the union members, 
Congress has determined that the plaintiffs’ right to get their 
fees paid is paramount. By not mentioning any countervailing 
equities, Congress must be taken to mean that the plaintiffs 
right to attorneys’ fees is superior to the rights of any adversary 
over whom the plaintiff prevails.



10

B. There Is No Basis For Exem pting In ter- 
venors From  § 706(k)10

Nothing in the language of § 706(h) limits the species of 
litigant against whom an award may be made and nothing in 
it exempts any species of losing parties from the burden of paying 
the attorneys’ fees of the successful plaintiff. The absence of 
language in either § 706(k) or § 1988 restricting the parties against 
whom fees may be awarded stands in contrast to the Age 
Discrimination in Employment Act, 29 U.S.C. § 626(b) (incor­
porating the Fair Labor Standards Act, 29 U.S.C. § 216(b)), where 
liability for the winner’s attorneys’ fees can be imposed only 
on the “defendant”. Congress clearly knows how to limit fees 
liability when it wishes to do so. See also, Federal Water Pollution 
Control Act, 33 U.S.C. § 1367(c).

10 The courts unanimously hold that fee awards are available against 
voluntary intervenors opposing relief to plaintiffs, except when they 
function as plaintiffs asserting rights covered by § 706(k) or § 1988. 
See Charles v. Daley, 846 F.2d 1057 (7th Cir. 1988); Allen v. Terminal 
Transport Co., 653 F.2d 1016 (5th Cir. 1981), cert, denied, 455 U.S. 989 
(1982); Haycraft u. Hollenbach, 606 F.2d 128 (6th Cir. 1979); Moten v. 
Bricklayers, Masons and Plasterers, 543 F.2d 224 (D.C. Cir. 1976); S&R 
Wrecker Service, Inc. v. Mecklenburg County, 652 F. Supp. 527 (W.D.N.C. 
1987); Akron Center for Reproductive Health v. City of Akron, 604 F. 
Supp. 1268 (N.D. Ohio 1984); Thompson v. Sawyer, 586 F. Supp. 635 
(D.D.C. 1984); May v. Cooperman, 578 F. Supp. 1308 (D.N.J. 1984); Decker 
v. U.S. Dept, of Labor, 564 F. Supp. 1273 (E.D. Wis. 1983); Vulcan Society 
of Westchester County, Inc. v. Fire Department of the City of White 
Plains, 533 F. Supp. 1054 (S.D.N.Y. 1982); Robideau v. O’Brien, 525 F. 
Supp. 878 (E.D. Mich. 1981); Planned Parenthood A ss’n v. Common­
wealth of Pa., 508 F. Supp. 567 (E.D. Pa. 1980); Wis. Socialist Workers 
1976 Campaign Comm. v. McCann, 460 F. Supp. 1054 (E.D. Wis. 1978).

The cases cited by the union as contra (Brief for Pet. at 26-27) are 
inapposite. In Tunstall v. Office of Judicial Support, 820 F.2d 631 (3d 
Cir. 1987), the party involved was a defendant. In Annunziato v. The 
Gan, Inc., 744 F.2d 244 (2d Cir. 1984), an innocent defendant was “caught 
in the cross-fire between plaintiffs and the [defendant]”, id. at 255, in 
that it was brought into the case against its will. In Natural Resources 
Defense Council, Inc. v. Thomas, 801 F.2d 457 (D.C. Cir. 1986), fees 
were denied because the language of the Clean Water Act, § 505(d), 
33 U.S.C. § 1365(d), (“where appropriate”) was different than the § 1988 
standard of “prevailing parties”, the same basis for the decision in Sierra 
Club v. EPA, 769 F.2d 796 (D.C. Cir. 1985). In Richardson v. Alaska 
Airlines, Inc., 750 F.2d 763 (9th Cir. 1984), fees were denied because 
under the ADEA they are available only against an offending employer.



11

Carving out an exception for intervenors cannot be justified 
on the theory that Congress did not have intervenors in mind. 
Section 1988 uses the same wording as § 706(k) and both statutes 
should be interpreted in a similar manner. Pennsylvania v. 
Delaware Valley Citizens’ Council, 478 U.S. 546,559-560 (1986).11 
Section 1988 was enacted to correct the “gap” pointed out in 
Alyeska.12 Congress was surely aware of the fact that in Alyeska 
the party against whom fees were sought and denied was an 
intervenor. Also, the legislative history cited with approval Sims 
v. Amos, 340 F. Supp. 691 (M.D. Ala.), aff’d mem., 409 U.S. 942 
(1972), where fees were assessed against intervening legislators.
S. Rep. No. 1011 at 3 n.3.13

Congress recognized that civil rights plaintiffs are less likely 
to recover damages, rather than  non-monetary relief, and 
therefore less likely to attract lawyers who might otherwise be 
willing to look to contingent fees. In Title VII cases, money 
damages are not available, only backpay under § 706(g), 42 U.S.C. 
§ 2000e-5(g), when the court in its discretion deems it proper. 
Moreover, because of the greater likelihood of non-monetary relief, 
any Title VH plaintiff can expect to encounter intervenors more 
frequently than in other cases. Granting exemption from § 706(k) 
to intervenors would thus undercut the availability of lawyers 
for plaintiffs in precisely the kinds of cases in which they have 
the most difficulty attracting lawyers.

Imposing the winning plaintiffs attorneys’ fees upon an 
intervenor whose opposition was unsuccessful is not inequitable. 
Awarding compensation to a winning plaintiff accomplishes the 
purpose of the fee-shifting statute, and has the salutary effect 
of making an intervenor think twice before entering the fray.

11 The legislative history of § 1988 shows the same purpose as § 706(k) 
-  to encourage private citizens to initiate court action to correct violations 
of the Nation’s civil rights statutes. See H.R. Rep. No. 1558, 94th Cong., 
2d Sess. 1 (1976).

12 See H.R. Rep. No. 1558 at 2. See also S. Rep. No. 1011, 94th Cong., 
2d Sess. 1, reprinted in 1976 U.S. Code Cong. & Admin. News 5908.

13 Congress also explicitly contemplated “defendant-intervenors”, albeit 
as potential enforcers of Title VII. Id. at 4 n.4.



12

III
THE UNION WAS NOT A FUNCTIONAL 
PLAINTIFF

Section 706(k) arms a plaintiff with a sword and a shield, 
both of which stem from the underlying Congressional purpose 
of obtaining private enforcement. When a plaintiff wins, he gets 
his attorneys’ fees reimbursed as a matter of course, absent special 
circumstances. Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 
412, 416 (1978); S. Rep. No. 1011 at 4. When a plaintiff loses, 
he must pay the winning defendant’s fees only when the case 
is frivolous, unreasonable or groundless. Christiansburg, 434 U.S. 
at 424; S. Rep. No. 1011 at 5. The plaintiffs shield serves the 
purpose of assuaging concern about the cost of losing, thereby 
furthering the Congressional purpose of encouraging private 
enforcement. For that reason, a plaintiff is entitled to the shield 
only when he brings into court an alleged violator of Title VII 
and seeks redress for that violation. Only then can he be regarded 
as a “plaintiff’ within the meaning of § 706(k) and Christians­
burg.

The formal labels “plaintiff’, “defendant” and “intervenor” 
are not helpful in assessing responsibility for the fees of the 
winning party. For example, if an employer brought an action 
seeking a declaratory judgment over the legality of a new 
promotion policy, he would be regarded as a “plaintiff’ under 
the Federal Rules of Civil Procedure but he would not be entitled 
to the benefits of § 706(k). The real question is whether the losing 
party acted like a plaintiff or a defendant.

Only when an intervenor presents a claim of a violation of 
Title VII and seeks redress for it can he be characterized as 
a party taking part in the eradication of discrimination. Only 
then does an intervenor have Congress’ encouragement to act 
as a “private attorney general”; only then can an intervenor 
be regarded as a “functional plaintiff’; and only then does he 
earn the shield of Christiansburg.14 If the rights asserted by an 14

14 See Reeves v. Harrell, 791 F.2d 1481 (11th Cir. 1988), cert, denied, 
479 U.S. 1033 (1987); Grano v. Barry, 783 F.2d 1104 (D.C. Cir. 1986); 
Kirkland v. New York State Dept, of Correctional Services, 524 F. Supp. 
1214 (S.D.N.Y. 1981).



13

intervenor fall short of those that Congress deemed worthy of 
encouraging via fee-shifting, the intervenor has no claim to the 
mantle of a “functional plaintiff’ or the protection of Christians- 
burg.

The union did not qualify for protection under Christiansburg 
as a “plaintiff’ because the union asserted neither a Title VII 
claim nor any other claim covered by a fee-shifting statute. 
Moreover, the nature and extent of the union’s opposition to the 
p la in tiffs’ quest for relief places it even farther away from its 
desired status as a “functional plaintiff’. The union challenged 
not only the restoration of the plaintiffs’ competitive seniority, 
but the entire settlement agreement, arguing that the Court lacked 
jurisdiction. Zipes v. Trans World Airlines, 455 U.S. 385, 391 
(1982). If the union had its way, the Sub-Class B plaintiffs would 
have taken nothing by their suit, just as surely as if TWA had 
prevailed on the merits.15

In fact, the procedural history of this case demonstrates that 
from the beginning the union was a wolf in sheep’s clothing. 
When it filed the complaint, the union purported to be the class 
representative of the former stewardesses. At that time, the union 
wanted an end to TWA’s no-mothers policy for the benefit of 
the incumbents (union members). Section 706(g) made it clear 
to the union that re-employment and retroactive seniority were 
available to the former stewardesses, both of which were 
antagonistic to the union’s members. In the settlement agreement 
negotiated with TWA, the union gave up any meaningful right 
to re-employment (at least to the extent that it would have any 
adverse affect on the incumbents16), and gave up all rights to 
retroactive seniority. In order to get what the union wanted, it 
also gave up all of the plaintiffs’ claims for backpay and company 
seniority. That was of value to TWA and cost the union nothing. 
The use of tha t bargaining chip to benefit the incumbents 
illuminated the union’s conflict of interest.

15 Even as to the Sub-Class A plaintiffs, the union argued that the 
District Court could not award retroactive seniority in derogation of 
the employment agreement between TWA and the incumbent employees.

16 The settlement provided for re-employment only when openings 
occurred.



14

After the union was ejected as the plaintiffs’ class repre­
sentative, the union was not heard from again until the plaintiffs 
achieved their hard won settlement. At that point, the union 
asserted the very argument which TWA had given up in the 
1979 settlement — the jurisdictional challenge to plaintiffs’ entire 
case. If the union had its way, the plaintiffs would have walked 
away with nothing, as surely as if TWA had won the case. The 
union could not have chosen grounds for combat more typical 
of a defendant.17

Essentially conceding that the union did not assert the kinds 
of rights which elevate it to a private attorney general, amicus 
E.E.O.C. suggests that an intervenor should be immune from 
§ 706(k) fee awards whenever the views it presents at the relief 
stage are merely important or socially desirable. However, had 
Congress desired to immunize intervenors who present argu­
ments that are “important” (either to the intervenor or society, 
generally), it could easily have done so.18 There is simply nothing 
in the language of § 706(k), § 1988, or their respective legislative 
histories that supports this attempt to carve out an exception 
to the “prevailing party” standard.

Amicus E.E.O.C. and the union similarly argue that the 
im position  of fee awards would have a “chilling effect” upon 
intervenors who desire to contest the claims of Title VII plaintiffs 
for relief. Concern about “chilling” is precisely one of the two 
principal underpinnings of the American Rule. Cf. Rich v. United 
States, 417 U.S. 116, 130 (1974). But the American Rule was 
reversed in 706(k) as to those who choose to oppose plaintiffs 
in Title VII cases. See Christiansburg, 434 U.S. at 415-416.19

17 That the union was not “required” to intervene on account of its 
duty of fair representation is explained at length in the Seventh Circuit’s 
opinion below. (P.A. 14a-16a)

18 For example, in the Toxic Substances Control Act, 15 U.S.C. § 2605 
(c) (4) (A), Congress provided for fee awards to persons who represent 
“an interest which would substantially contribute to a fair determination 
of the issues to be resolved in the proceeding.”

19 In the context of § 706(k), the “chilling effect” argument is atavistic. 
Under the English Rule, where the loser pays as a matter of course, 
no one would give a second thought to imposing upon an intervenor 
the attorneys’ fees of the party who prevailed against him.



15

In any event, the argument that the expressions of the union’s 
points in Zipes v. Trans World Airlines, 455 U.S. 385 (1982), were 
important and socially useful is belied by the contrary assess­
ments of both this Court and amicus E.E.O.C. in Zipes. The union 
argued there that the plaintiffs’ settlement could not be approved 
for lack of subject matter jurisdiction and that, in any event, 
because the case was settled without an adjudicated finding that 
TWA had violated Title VII, the predicate for relief was missing. 
This Court found both arguments to be “without merit”.20

In its brief in Zipes (Nos. 78-1545 and 80-951), amicus E.E.O.C. 
observed: “there is no merit to either of [the union’s] contentions” 
(at 9); “there is no merit to IFFA’s contention that seniority may 
never be restored in a settlement without the consent of a non- 
party union representing incumbent employees” (id. at 9-10); 
“IFFA’s contention that a settlement may not provide for the 
restoration of seniority without the approval of a union that is 
not a defendant, and thus has no potential liability . . .  is both 
extravagant and flatly inconsistent with Congress’ intent” (id. 
at 26-27).

20 After disposing of the jurisdiction argument, this Court concluded 
that the second contention “is also without merit”, 455 U.S. at 398, 
and stated: “Equally meritless is the union’s contention that retroactive 
seniority contrary to the collective-bargaining agreement should not be 
awarded over the objection of a union that has not itself been found 
guilty of discrimination’’, id. at 399.



16

IV

IN  A CO NTEST BETW EEN TWO 
G EN U IN E P L A IN T IF F S , THE LOSING 
PLA IN TIFF SHOULD PAY THE ATTOR­
N EY S’ FE E S  OF TH E W INNING 
PLA IN TIFF

A. In  C o n te s ts  B e tw een  P la in tif f s , T he 
Defensive P ro tec tion  Of Christiansburg  
Should Be E lim inated

Once the labels are cast aside and meaningful analysis has 
determined whether the contending parties are functional 
plaintiffs or defendants, it is apparent that only rarely will 
plain tiffs oppose each other in Title VII or civil rights cases. 
The likelihood of two parties opposing one another, each of whom 
either asserts a violation against the other or seeks redress from 
the other for a violation, is slim. It would seem that it can occur 
only when a Title VII or civil rights lawsuit results in an order 
which is then challenged as being a violation (of Title VII, etc.).21

In that sort of deadlock, it is literally impossible for both 
plain tiffs to enjoy both the shield and sword of Christiansburg. 
Several reasons favor elimination of the defensive shield, and 
that the winning plaintiff should receive compensation for his 
attorneys’ fees from the losing plaintiff.

Since the goal established by Congress is to encourage private 
enforcement, the solution should adopt whatever is most likely 
to enhance private enforcement. However intimidating it might 
be to a plaintiff to contemplate paying the attorneys’ fees of 
the “plaintiff’ he is about to sue, it would seem that it will be 
outweighed by the prospect of receiving his attorneys’ fees if 
he wins, providing he has a greater than 50% confidence of

21 Two such cases are Prate v. Freedman, 583 F.2d 42 (2d. Cir. 1978) 
and Baker v. City of Detroit, 504 F. Supp. 841 (E.D. Mich. 1980) aff’d, 
sub nom. Bratton v. City of Detroit, 704 F.2d 878 (6th Cir. 1983), cert, 
denied, 464 U.S. 1040 (1984). In those cases, the “second plaintiff” accused 
the original plaintiff not of a violation in the usual sense but, rather, 
of instigating or supporting a violation by obtaining an order that 
violated Title VII.



17

winning. For the same reason, would-be plaintiffs who have less 
than 50% confidence will be less likely than otherwise to file 
suits in cases that pit plaintiffs against one another. The result 
of the foregoing suggestion is likely to be that more cases will 
be filed in which plaintiffs are relatively confident, and fewer 
cases in which plaintiffs are less than sanguine.

Here, even if it had been the case that the union was truly 
a “functional plaintiff’, the choice would be between: (a) an 
innocent victim of a Title VII violation who, having demonstrated 
a right to relief, was put to added litigation expense in order 
to obtain redress; and (b) an intervenor who, while innocent of 
the underlying violation, was the party who imposed those 
additional costs upon the plaintiff. In making the choice, it would 
have to be kept in mind that the union’s opposition was not 
“rightful”. After all, the reason why the union lost was that its 
position was without merit.

B. A tto rn e y s ’ F ees F o r The W ork Made 
N ecessa ry  By A P la in tif f - In te rv e n o r  
Should N ot Be Imposed On The Original 
D efendant

In a contest between a plaintiff and an intervenor-plaintiff, 
one possible solution too obvious to ignore would impose the 
winner’s attorneys’ fees on the original wrongdoer-defendant. 
That is not a good solution.

In the case of a settled lawsuit, that would be contrary to 
the policy of encouraging settlements. A wrongdoer defendant 
who settles typically and understandably has the motive and 
expectation of quantifying his total cost and terminating his 
involvement in the proceedings. Subjecting a settling wrongdoer 
defendant to open-ended liability for attorneys’ fees made 
necessary thereafter by a party not under his control would serve 
as a disincentive to settle.22

22 Of course, settlements are encouraged. ALSSA v. Trans World 
Airlines, 630 F.2d 1164,1166-7 (7th Cir. 1980).



18

That rule would also be unworkable in fully htigated cases, 
inasmuch as the tenacity and vigor of an intervenor’s later 
litigation posture, and hence the amount of attorneys’ fees that 
will later flow therefrom, are unpredictable.23 In this case in 
particular, TWA could not reasonably be expected to anticipate 
that the union would assert lack of jurisdiction — the very 
argument that TWA gave up by settling.

In any event, inasmuch as the union does not come close 
to being a “functional plaintiff’, these questions ought not be 
addressed in this case.

23 In Avoyelles Sportsmen’s League v. Marsh, 786 F.2d 631 (5th Cir. 
1986), plaintiff prevailed against the government, but the government 
was held to be not liable for fees in the later phase of the litigation 
in which plaintiff was opposed by other parties. Id. at 632, 637.



19

CONCLUSION

The issue on which the Seventh and Eleventh Circuits 
disagree is not appropriate for decision in this case because the 
union was not a functional plaintiff. Consequently, the writ of 
certiorari should be dismissed. In any event, the judgment of 
the Seventh Circuit Court of Appeals should be affirmed.

Respectfully submitted,

Aram A. Hartunian*
Robert M. Weissbourd 
P hyllis L. Crocker 
Hartunian, Futterman & 

Howard, Chtd.
Suite 1850
122 South Michigan Avenue 
Chicago, XL 60603 
(312) 427-3600

Kevin M. Forde 
Katrina Veerhusen 
Kevin M. Forde, Ltd.

Suite 1100
111 West Washington Street 
Chicago, EL 60602 
(312) 641-1441

Attorneys for Respondents

* Counsel of Record