AFSCME v. County of Nassau Brief of Amici Curiae NAACP Legal Defense and Educational Fund, Inc., Women's Legal Defense Fund et. al

    95-9022,
95-9024

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

AFSCME, et al., 
Plaintiffs-Appellees,

COUNTY OF NASSAU, et al., 
Defendants-Appellants

On Appeal from the 
United States District Court 

for the Eastern District of New York

BRIEF OF AMICI CURIAE NAACP LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC., WOMEN'S LEGAL DEFENSE FUND,

NEW YORK CIVIL LIBERTIES UNION and NATIONAL EMPLOYMENT LAWYERS 
ASSOCIATION (NEW YORK CHAPTER),

IN SUPPORT OF PLAINTIFFS-APPELLANTS

V.

Herbert Eisenberg
National Employment Lawyers

Elaine R. Jones 
Director-Counsel

Association, New York Chapter 
377 Broadway 
New York, N.Y. 10013
(212) 966-900

Theodore M . Shaw 
Charles Stephen Ralston 
David T. Goldberg 
Paul K. Sonn*
NAACP Legal DefenseDonna Lenhoff

Women's Legal Defense Fund 
1875 Connecticut Ave., N.W. 
Washington, D.C. 20009 
(202) 986-2600

and Educational Fund, Inc. 
99 Hudson Street 
New York, N.Y. 10013 
(212) 219-1900

Leon Friedman
New York Civil Liberties Union 
132 West 43rd Street 
New York, N.Y. 10036 
(212) 382-0557

Attorneys for Amici Curiae

*Counsel of Record



TABLE OF CONTENTS

TABLE OF AUTHORITIES.............................................  ii

STATEMENT OF INTEREST OF AMICI CURIAE ...........................  1

SUMMARY OF ARGUMENT................................................ 6

ARGUMENT ..........................................................  8

Xj_ The Court below Exceeded its Authority under the
Statute to Sanction Only "Frivolous Claims" ..........  8

A. The District Court's Holding of Frivolousness is 
Grounded on an Erroneous View of the
Christianaburg Standard...........................  8

The Dual Standard ......................... 8

2.*. The District Court Failed to Analyze the
Case Under the Christiansburcr Standard. . . 12

B. The Court below Disregarded Settled Law Guiding
the Application of the Statute................... 15

C. The Determination of Frivolousness Rests on an
Erroneous Understanding of the Law Relating to 
Statistical Evidence .............................  21

II. The "Frivolousness" vel Don of a Legal Claim Does not
Depend on the Identity of the Party Bringing It. . . .  23

III. Application of Section 113 of the Civil Rights Act of
1991   32

CONCLUSION........................................................  34

l



TABLE OF AUTHORITIES
CASES

AFSCME v. Nassau County,
825 F. Supp. 468 (E.D.N.Y. 1993) .........................passim

AFSCME v. Nassau County,
609 F. Supp. 695 (E.D.N.Y. 1985) ......................... 6, 15

AFSCME v. Nassau County,
799 F. Supp. 1370 (E.D.N.Y. 1992) ..............  6, 16, 19, 21

Albemarle Paper Co. v. Moody,
422 U.S. 405 (1975) .....................................  2, 9

Alizadeh v. Safeway Stores, Inc.,
910 F . 2d 234 (5th Cir. 1990)   24

Alyeska Pipeline Co. v. Wilderness Soc.,
421 U.S. 240 (1975) .......................................  34

American Family Life Assurance Co. v. Teasdale,
733 F . 2d 559 (8th Cir. 1984)   21

Barnes v. Costle,
561 F . 2d 983 (D.C. Cir. 1977) ...............................  3

Barry v. Fowler,
902 F . 2d 770 (9th Cir. 1990)   11

Bazemore v. Friday,
478 U.S. 385 (1986) .................................  2, 3, 21

Blum v. Stenson,
465 U.S. 886 (1984) .....................................  2, 25

Bradley v. School Bd. of Richmond,
416 U.S. 696 (1974) ......................... 2, 8, 29, 33, 34

Brooks v. Cook,
938 F . 2d 1048 (9th Cir. 1991) .............................  19

Brown v. Board of Educ.,
347 U.S. 483 (1954) .........................................  1

Buford v. Tremayne,
747 F . 2d 445 (8th Cir. 1984) ...............................  21

li



Busby v. City of Orlando,
931 F .2d 764 (11th Cir. 1991) ......................... 11, 18

Carrion v. Yeshiva University,
535 F . 2d 722 (2d Cir. 1976) ....................... 11, 14, 20

Carter v. Sedgwick County,
36 F,3d 952, 956 (10th Cir. 1 9 9 4 ) .............................  7

Christiansburg Garment Co. v. EEOC,
434 U.S. 412 (1978) ..................................... passim

Citizens Against Rent Control v. Berkeley,
454 U.S. 290 (1981) .......................................  27

City of Burlington v. Dague,
505 U.S. 557 (1992) .........................................  4

Clemons v. Runk,
402 F. Supp. 863 (S.D. Ohio 1975) (2) (1994) ..............  32

Colombrito v. Kelly,
764 F . 2d 122 (2d Cir. 1985) ...............................  18

Conley v. Gibson,
355 U.S. 41 (1957) .........................................  28

Cooter Sc Gell v. Hartmarx,
496 U.S. 384 (1990) .........................................  7

County of Washington v. Gunther,
452 U.S. 161 (1981) .........................................  3

EEOC v. Bellemar Parts Indus.,
868 F .2d 199 (6th Cir. 1989) ...............................  11

EEOC v. Kenneth Balk & Assoc.,
813 F . 2d 197 (8th Cir. 1987) ...........................  18, 19

EEOC v. Kimbrough Investment Co.,
703 F . 2d 98 (5th Cir. 1983) ...............................  17

EEOC v. Reichhold Chemicals, Inc.,
988 F .2d 1564 (11th Cir. 1993) .............................  35

Eastway Constr. Corp. v. City of New York,
762 F .2d 243 (2d Cir. 1985) ........................... .. 20

iii



30

24

24

14

31

13

27

18

11

13

30

21

18

28

2

16

Fair Housing Council v. Ayres,
855 F. Supp. 315 (C.D. Cal. 1994) ........

Faraci v. Hickey-Freeman Co.,
607 F .2d 1025 (2d Cir. 1979) ..............

Farrar v. Hobby,
506 U.S. 103 (1992) .......................

Figures v. Board of Public Utils.,
967 F .2d 357 (10th Cir. 1992) ............

Fitzpatrick v. City of Atlanta,
2 F .3d 1112 (11th Cir. 1993) ..............

Flight Attendants v. Zipes,
491 U.S. 754 (1989) .......................

Florida Industrial Comm'n,
389 U.S. 235 (1967) .......................

Fort v. Roadway Express, Inc.,
746 F .2d 744 (11th Cir. 1984) ............

Foster v. Mydas Assoc., Inc.,
943 F .2d 139 (1st Cir. 1991) ..............

Funk v. United States,
290 U.S. 371 (1933) .......................

Georgia State Conf. of Branches of NAACP v. Georgia, 
775 F .2d 1403 (11th Cir. 1985) ............

Gerena-Valentin v. Koch,
739 F .2d 755 (2d Cir. 1984) ..............

Glymph v. Spartanburg Gen'l Hosp.,
783 F .2d 476 (4th Cir. 1986) ..............

Goodman v. Lukens Steel,
482 U.S. 656 (1987) .......................

Griggs v. Duke Power Co.,
401 U.S. 424 (1971) .......................

Hazelwood School District v. United States,
433 U.S. 299 (1977) .......................

IV



Hensley v. Eckerhart,
461 U.S. 424 (1983) .....................................  2, 11

Herrington v. County of Sonoma,
883 F. 2d 739 (9th Cir. 1989) ...............................  25

Hughes v. Rowe,
449 U.S. 5 (1980) .....................................  18, 24

Jacksonville Branch, NAACP v. Duval Cty. Sch. Bd.,
978 F . 2d 1574 (11th Cir. 1992) .............................  30

Jane L. v. Bangerter,
61 F . 3d 1505 (10th Cir. 1 9 9 5 ) ...............................  20

Johnson v. Allyn & Bacon, Inc.,
731 F . 2d 64 (1st Cir. 1 9 8 4 ) .................................  17

Johnson v. Georgia Highway Express,
488 F . 2d 714 (5th Cir. 1974) ................................. 2

Johnson v. Palma,
931 F . 2d 203 (2d Cir. 1991) ...............................  28

Jones v. Continental Corp.,
789 F .2d 1225 (6th Cir. 1986) .............................  11

Jones v. Wilkinson,
800 F .2d 989 (10th Cir. 1986),
aff'd, 480 U.S. 926 (1987) .................................  25

Landgraf v. USI Film Products,
128 L. Ed. 2d 229 (1994) ......................... 2, 8, 32, 33

Le Beau v. Libbey-Owens-Ford,
799 F .2d 1152 (1986), as modified, 808 F.2d
1272 (7th Cir. 1987) .......................................  17

Livadas v. Bradshaw,
129 L. Ed. 2d 93 (1994).....................................  27

LULAC v. Clements,
999 F .2d 831 (5th Cir. 1993),
cert, denied, 127 L. Ed. 2d 74 (1994) ..................... 30

LULAC v. Midland Indep. Sch. Dist.,
829 F. 2d 546 (5th Cir. 1987) ...............................  30

v



17

4

35

2

18

30

24

29

11

16

27

30

30

30

30

Maag v. Wessler,
993 F .2d 718 (9th Cir. 1993) ................

Marek v. Chesny,
473 U.S. 1 (1985) ...........................

Marquart v. Lodge 837, Int'1 Ass'n of Mach. & Aero.
Workers, 26 F.3d 842 (8th Cir. 1994) ........

McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) .........................

Melton v. Oklahoma City,
879 F.2d 706 (1989), as modified,
(10th Cir. 1991) (en banc) ..................

Metro Fair Hous. Svces. v. Morrowood Garden Apts.,
576 F. Supp. 1090 (N.D. Ga. 1983), rev'd in 
part, 758 F.2d 1482 (11th Cir. 1985) ........

Miller v. Los Angeles County Bd. of Educ.,
827 F .2d 617 (9th Cir. 1987) ................

Missouri v. Jenkins,
491 U.S. 274 (1989) .........................

Mitchell v. L.A. Cty. Commun. Coll. Dist.,
861 F .2d 198 (9th Cir. 1988) ................

Mitchell v. Office of L.A. Cty. Superintend, of Sch., 
805 F .2d 844 (9th Cir. 1986) ................

NAACP v. Button,
371 U.S. 415 (1963) .........................

NAACP v. City of Niagara Falls,
65 F .3d 1002 (2d Cir. 1995) ..................

NAACP v. Hampton Cty. Election Comm'n,
470 U.S. 166 (1985) .........................

NAACP v. New York,
413 U.S. 345 (1973) .........................

NAACP v. Town of East Haven,
__ F .3d __, 1995 U.S. App. LEXIS 30823
(2d Cir. Oct. 20, 1995) ....................

vi



30

27

5

11

2

30

19

34

26

2

2

2

20

26

30

30

NAACP v. Wilmington Medical Center, Inc.,
657 F .2d 1322 (3d Cir. 1981) ................

Nash v. Florida Industrial Comm'n,
389 U.S. 235 (1967)............................

New York City Bd. of Estimate v. Morris,
489 U.S. 688 (1989) .........................

New York Gaslight Club v. Carey,
447 U.S. 54 (1980) ...........................

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

Norwalk Chapter of CORE v. Norwalk Bd. of Educ.,
423 F .2d 121 (2d Cir. 1970) ..................

Nulf v. Int'1 Paper Co.,
656 F .2d 553 (10th Cir. 1981) ................

Overseas African Construction Corp. v. McMullen,
500 F .2d 1291 (2d Cir. 1974) ..................

Parks v. Watson,
716 F .2d 646 (9th Cir. 1983) ..................

Patterson v. Mclean Credit Union,
491 U.S. 164 (1989) ...........................

Patterson v. Newspaper & Mail Deliverers' Union,
514 F .2d 767 (2d Cir. 1975) ..................

Phillips v. Martin Marietta Corp.,
400 U.S. 542 (1971) ...........................

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

In re Primus,
436 U.S. 412 (1978) ...........................

Puerto Rican Legal Defense & Educational Fund v. Gantt, 
796 F. Supp. 681 (E.D.N.Y.), vacated as moot,
121 L. Ed. 2d 3 (1992) .........................

Puerto Rican Org. for Political Action v. Kusper,
490 F .2d 575 (7th Cir. 1973) ..................

v n



Railroad Trainmen v. Virginia Bar,
377 U.S. 1 (1964) .....................................  26, 27

Rivers v. Roadway Express,
128 L. Ed. 2d 274 (1994) ........................... 32, 33, 34

Robinson v. Monsanto Co.,
758 F . 2d 331 (8th Cir. 1985) ...............................  19

Sable Communications, Inc. v. Pacific Tel & Tel. Co.,
890 F . 2d 184 (9th Cir. 1989) ...............................  25

Sanchez v. City of Santa Ana,
936 F . 2d 1027 (9th Cir. 1990) .............................  16

Sassower v. Field,
973 F .2d 75 (2d Cir. 1992) .................................  19

Southern Christian Leadership Conf. v. Sessions,
56 F .3d 1281 (11th Cir. 1995),
cert, petition filed (Oct. 12 1995) ......................... 30

Segar v. Smith,
738 F . 2d 1249 (D.C. Cir. 1984) .............................  16

Sharif v. New York State Educ. Dep't,
709 F. Supp. 345 (S.D.N.Y. 1989) .............................  5

Sobel v. Yeshiva University,
839 F . 2d 18 (2d Cir. 1988) .............................  22, 35

Soderbeck v. Burnett County,
752 F . 2d 285 (7th Cir. 1985) ...............................  19

Sullivan v. School Bd. of Pinellas County,
773 F . 2d 1182 (11th Cir. 1985) ..................... 15, 17, 18

Teamsters v. United States,
431 U.S . 324 (1977) .......................................  16

Tonti v. Petropoulous,
656 F . 2d 212 (6th Cir. 1981) ...............................  24

United Australia Ltd. v. Barclay's Bank Ltd.,
(1941) A . C . 1 ................................................ 13

United Automobile Workers v. Brock,
477 U.S . 474 (1986) .......................................  27

v m



United Automobile Workers v. Johnson Controls, Inc.,
499 U.S. 187 (1991) .........................................  2

United States & MALDEF v. Texas,
680 F . 2d 356 (5th Cir. 1982)    30

United States v. LULAC,
793 F . 2d 636 (5th Cir. 1986)   30

United States, v. Mississippi,
921 F . 2d 604 (5th Cir. 1991) ............................ 15, 17

United Transportation Union v. Michigan Bar,
401 U.S. 576 (1971) ........................................ 27

Vaughner v. Pulito,
804 F . 2d 873 (5th Cir. 1986)   19

Vernon v. Cassadega Valley Cent. School Dist.,
49 F . 3d 886 (2d Cir. 1995) .................................  33

Walker v. Nationsbank N.A.,
53 F . 3d 1548, 1559 (11th Cir. 1 9 9 5 ) ......................... 17

Wards Cove Packing Co. v. Atonio,
490 U.S. 642 (1989) .......................................  31

Wilder v. Bernstein,
645 F. Supp. 1293 (S.D.N.Y. 1986),
aff'd 948 F .2d 1338 (2d Cir. 1988) ...........................  5

Williamsburg Fair Hous. Comm. v. N.Y. City Hous. Auth.,
493 F. Supp. 1225 (S.D.N.Y. 1980) ......................... 30

Woods v. Lancet,
303 N.Y. 349, 102 N.E.2d 691 (1951) ....................... 14

STATUTES
Civil Rights Act of 1991, § 105(a),

codified at 42 U.S.C. § 2000e-2 (k) (1994)................... 31

Civil Rights Act of 1991, § 113,
codified at 42 U.S.C. § 2000e-5(k) (1994) . . . .  31, 32, 33, 34

Civil Rights Attorney's Award Act of
1976, 42 U.S.C. § 1988 (1994) ..................... 11, 13, 29

IX



Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq. (1994) ....................... passim

Section 706(k) of Title VII,
42 U.S.C. § 2000e-5(k) (1994) ...........................  passim

42 U.S.C. § 1981 (1994)...........................................  28

42 U.S.C. § 1983 (1994)............................................ 16

42 U.S.C. § 3612(c) (1988)   32

42 U.S.C. § 3613(c)(2) (1994).....................................  32

MISCELLANEOUS
Mary Frances Derfner & Arthur D. Wolf, Court

Awarded Attorney Fees (Kevin Shirey rev. ed. 1995) . . . 20, 21

H.R. Rep. No. 94-1558, 94th Cong., 2d Sess (1976)............  12, 13

H.R. Rep. No. 101-485(11), 101st Cong., 2d Sess.
(1990), reprinted in 1990 U.S.C.C.A.N. 267 ................  13

H.R. Conf. Rep. No. 103-488, 103d Cong., 2d Sess.
(1994), reprinted in 1994 U.S.C.C.A.N. 699 ................  13

x



STATEMENT OF INTEREST OF AMICI CURIAE

Amici are non-profit public interest organizations committed to 

fighting discrimination and seeking redress for those whose civil rights 

have been violated. Through their own legal staffs, member attorneys, 

and volunteer attorneys, amici regularly participate in complex class- 

action litigation under federal civil rights statutes. Because the 

ability of amici to represent parties with meritorious civil rights 

claims (or to secure their representation) is critically affected by the 

rules governing court-awarded attorney's fees, amici have participated 

in numerous cases involving the interpretation of fee-shifting statutes 

and have a strong interest in assuring that such provisions are 

interpreted consistently with the congressional purpose of promoting 

vigorous private enforcement of civil rights laws.

Amicus NAACP Legal Defense and Educational Fund, Inc. (LDF) was 

incorporated in 1939 under the laws of New York State, for the purpose, 

inter alia, of rendering legal aid free of charge to indigent "Negroes 

suffering injustices by reason of race or color." Its first Director- 

Counsel was Thurgood Marshall. LDF has appeared as counsel of record or 

amicus curiae in numerous cases before the Supreme Court and the federal 

Courts of Appeals, involving constitutional and statutory civil rights 

guarantees, see, e.g., Brown v. Board of Educ., 347 U.S. 483 (1954); see

also NAACP v. Button, 371 U.S. 415, 422 (1963)(describing Legal Defense

Fund as a "'firm . . which has a corporate reputation for expertness



in presenting and arguing the difficult questions of law that frequently 

arise in civil rights litigation").

The Legal Defense Fund has long played a role in cases arising 

from employment discrimination based on gender, Phillips v. Martin 

Marietta Corp., 400 U.S. 542 (1971); Landgraf v. USI Film Prods., 128 L.

Ed. 2d 229 (1994); United Automobile Workers v. Johnson Controls, Inc., 

499 U.S. 187 (1991)(amicus curiae), as well as race, e.g., Patterson v. 

Mclean Credit Union, 491 U.S. 164 (1989); Bazemore v. Friday, 478 U.S. 

385 (1986); Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975); McDonnell 

Douglas Corp. v. Green, 411 U.S. 792 (1973); Griggs v. Duke Power Co.,

401 U.S. 424 (1971); Patterson v. Newspaper & Mail Deliverers' Union,

514 F .2d 767 (2d Cir. 1975).

The Legal Defense Fund has had a leading role in the cases that 

have established the principles governing the award of attorneys' fees 

in civil rights cases. See, e.g., Newman v. Piggie Park Enterprises,

390 U.S. 400 (1968); Bradley v. School Bd. of Richmond, 416 U.S. 696 

(1974); Missouri v. Jenkins, 491 U.S. 274 (1989); Johnson v. Georgia 

Highway Express, 488 F.2d 714 (5th Cir. 1974); Blum v. Stenson, 465 U.S. 

886 (1984)(amicus curiae); Hensley v. Eckerhart, 461 U.S. 424 

(1983)(amicus curiae); Christiansburg Garment Co. v. EEOC, 434 U.S. 412 

(1978)(amicus curiae). A portion of the Legal Defense Fund's annual 

budget, moreover, derives from awards of fees in cases where it has 

represented the prevailing party.

2



Amicus Women's Legal Defense Fund (WLDF) is a national advocacy- 

organization, established nearly 25 years ago to promote policies that 

help women and their families. WLDF seeks to ensure equal opportunity 

and economic security for women, especially women of color, by fighting 

discrimination in education and employment, advocating public policies 

that help Americans balance work and family responsibilities, and 

working for access to high-quality, affordable health care, including 

full reproductive choice.

Throughout its history, WLDF has placed special emphasis on issues 

of equal employment opportunity (EEO), mounting legal challenges to the 

discriminatory practices of public and private employers, monitoring 

government agencies' EEO enforcement, and promoting legislation such as 

the Pregnancy Discrimination Act, the 1991 Civil Rights Act, and the 

Family and Medical Leave Act. WLDF was a founder of the National 

Committee on Pay Equity.

WLDF has participated as counsel of record or amicus curiae in 

numerous cases before the U.S. Supreme Court, the federal Courts of 

Appeals, and select state appellate courts. WLDF volunteer attorneys 

represented Paulette Barnes, the successful appellant in Barnes v. 

Costle, 561 F.2d 983 (D.C. Cir. 1977), the first federal appeals court 

decision holding that sexual harassment is a form of sex discrimination 

cognizable under Title VII. On the issue of pay equity, WLDF 

participated as amicus curiae in County of Washington v. Gunther, 452 

U.S. 161 (1981), as well as Bazemore v. Friday, 478 U.S. 385 (1986).

3



WLDF has participated in several cases, including Marek v.

Chesny, 473 U.S. 1 (1985), and City of Burlington v. Dague, 505 U.S. 557 

(1992), establishing principles guiding court awards of attorneys' fees 

under the fee-shifting provisions of Title VII and similar federal civil 

rights statutes.

As a result of its long experience enlisting the assistance of pro 

bono counsel in civil rights cases, WLDF has first-hand knowledge of the 

impact that judicial interpretations of attorneys' fee statutes can have 

on the availability of legal representation to victims of employment 

discrimination.

Amicus NELA/NY is the New York Chapter of the National Employment 

Lawyers Association (NELA), a national bar association dedicated to the 

vindication of individual employees' basic rights in employment-related 

disputes. NELA is the nation's only professional organization comprised 

exclusively of lawyers who represent individual employees, and its more 

than 2,500 member attorneys (in 49 state chapters) are expert in issues 

of employment discrimination, employee benefits, the rights of union 

members to fair representation, and other issues arising from the 

employment relationship.

NELA/NY is incorporated as a bar association under the laws of New 

York State. Among NELA/NY's activities are the publication of a 

quarterly newsletter, the provision of continuing legal education, and 

the promotion, through its several committees, of more effective legal 

protections for employees.

4



In addition to the daily participation of its members in cases 

involving employment discrimination and attorneys' fee awards under 

federal civil rights legislation, NELA/NY has filed briefs in this Court 

and the New York State Court of Appeals, in cases presenting important 

questions of antidiscrimination law. The aim of this participation has 

been to cast light not only on the subtleties of the legal issues 

presented but also on the practical effects on the lives of working 

people that such legal rules produce.

Amicus New York Civil Liberties Union (NYCLU) is a non-profit, 

non-partisan membership organization. As the New York affiliate of the 

American Civil Liberties Union, NYCLU is committed to the advancement 

and protection of fundamental civil rights. NYCLU and its member 

attorneys have participated in numerous cases under Title VII, see, 

e.gr., Sharif v. New York State Educ. Dep't, 709 F. Supp. 345 (S.D.N.Y.

1989), and under other anti-discrimination and civil rights statutes, 

e.gr., New York City Bd. of Estimate v. Morris, 489 U.S. 688 (1989);

Wilder v. Bernstein, 645 F. Supp. 1293 (S.D.N.Y. 1986), aff'd 948 F.2d 

1338 (2d Cir. 1988) .

5



SUMMARY OF ARGUMENT
The district court order, AFSCME v. Nassau County (hereinafter 

AFSCME III), 825 F. Supp. 468 (E.D.N.Y. 1993),1 awarding more than $1.5 

million in attorney's and expert fees to the prevailing defendant in 

this Title VII case may not stand. In Christiansburg Garment Co. v. 

EEOC, 434 U.S. 412 (1978), the Supreme Court gave authoritative 

construction to section 706(k) of the 1964 Civil Rights Act, the 

statutory provision investing lower courts with "discretion [to award] . 

. . the prevailing party . . .  a reasonable attorney's fee" in Title VII

cases, 42 U.S.C. § 2000e-5(k) (1994). First, noting the statute's

legislative history and other clear indications of congressional 

purpose, the Court held that a dual standard must govern. Prevailing 

Title VII plaintiffs, "the chosen instrument of Congress to vindicate a 

policy that Congress considered of the highest priority," id. at 418, 

must "ordinarily . . .  be awarded attorney's fees." Id. at 416. By 

contrast, for prevailing defendants, a fee award is authorized only if 

plaintiffs' action was "frivolous, unreasonable or without foundation." 

434 U.S. at 421. Recognizing that even this narrow authority risked 

chilling private enforcement of civil rights laws, the Court warned 

district courts applying this standard to "resist the understandable

'The district court's decision denying defendants' motion to 
dismiss and its decision on the merits are reported at AFSCME v. Nassau 
County (hereinafter AFSCME I), 609 F. Supp. 695 (E.D.N.Y. 1985), and 
AFSCME v. Nassau County (hereinafter AFSCME II), 799 F. Supp. 1370 
(E.D.N.Y. 1992), respectively.

6



temptation to engage in post hoc reasoning." 434 U.S. at 421-22.

Finally (and significant to this case), the Court expressly rejected the 

argument that certain plaintiffs, by virtue of their size, status, or 

resources, should not be allowed to benefit from the dual standard. Id. 

at 422 n.20. These principles have been elaborated upon in a 

substantial body of case law in this and other federal courts.

The decision below, however, respects none of these precepts, and, 

as such, plainly constitutes an abuse of the discretion conferred by 

Section 706(k). See Cooter & Gell v. Hartmarx, 496 U.S. 384, 405 (1990) 

("A district court would necessarily abuse its discretion if it based 

its ruling [on Rule 11 sanctions] on an erroneous view of the law or a 

clearly erroneous assessment of the evidence"); Carter v. Sedgwick 

County, 36 F.3d 952, 956 (10th Cir. 1994) (in case involving Section 

706(k) , matters of "statutory interpretation and legal analysis" are 

subject to de novo appellate review).

Interpreting the statute as authorizing fees to be assessed more 

readily in cases brought by labor unions and other entities with 

significant resources is both precluded by Christiansburg and 

inconsistent with the principle that a claim's "frivolousness" be 

determined against an objective benchmark.

Beyond their impact on the parties to this case, the lower court's 

errors, individually and in combination, will "frustrate" and not 

"further" the oft-cited congressional policy of promoting vigorous

7



enforcement of antidiscrimination statutes while discouraging groundless 

suits. In particular, punishing unsuccessful claims more aggressively 

when unions or public interest organizations are adjudged to have been 

the "real party" will diminish the quantum and quality of legal 

representation available to "modestly salaried" individuals whose civil 

rights are violated and will make it especially difficult to bring 

certain types of important but legally complex claims.2

ARGUMENT
I_l. The Court below Exceeded its Authority under the Statute to 

Sanction Only “Frivolous Claims"
A. The District Court's Holding of Frivolousness is Grounded on an 

Erroneous View of the Chriatianaburg Standard.
The Dual Standard

Section 706(k) of the Civil Rights Act of 1964, as amended,

provides, in pertinent part, that

In any action or proceeding [under Title VII] the court, in its 
discretion, may allow the prevailing party . . .  a reasonable 
attorney's fee (including expert fees) as part of the costs

2The Court need not resolve in this appeal the question whether 
the authorization for awarding expert witnesses' fees and costs 
contained in the Civil Rights Act of 1991 is retroactive, because the 
award of attorneys' fees to defendants was in any event wrong. Were 
this Court to reach that issue, it would then be important to note that, 
even though the presumption against retroactivity recognized in La.nd.graf 
v. USI. Film Prods., 128 L. Ed. 2d 229 (1994), is inapplicable to the 
expert fee provision, see infra (discussing Bradley v. School Bd. of 
Richmond, 416 U.S. 696 (1974) (holding attorneys' fee provision 
applicable to case arising from pre-enactment conduct); Landgraf, 128 L. 
Ed. 2d at 259-61 (reaffirming holding of Bradley)), there may well be 
special concerns counseling against retroactive imposition of such fees 
against civil rights plaintiffs.

8



42 U.S.C. § 2000e-5(k) (1994). Although Congress did not include an 

exhaustive list of the factors that must inform a court's exercise of 

discretion under this provision, the statute's legislative history and 

overriding purposes have long guided its construction. Thus, because 

Congress plainly intended for suits brought by private plaintiffs to 

play a central role in eradicating employment discrimination, the 

statute has been interpreted as entitling every prevailing Title VII 

plaintiff to a fee award, unless "special circumstances would render 

such an award unjust." Albemarle Paper Co. v. Moody, 422 U.S. 405, 412 

(1975) (quoting Newman v. Piggie Park Enterprises, 390 U.S. at 402).

Not only, the Court has explained, is "the plaintiff . . . the chosen

instrument of Congress to vindicate a policy that Congress considered of 

the highest priority," Christiansburg, 434 U.S. at 418 (quoting Newman, 

390 U.S. at 402), but "when a district court awards counsel fees to a 

prevailing [Title VII] plaintiff, it is awarding them against a violator 

of federal law." Id.

By contrast, noting that the overriding congressional interest in 

vigorous Title VII enforcement is absent when a defendant prevails in an 

employment discrimination case, the Supreme Court unanimously held, in 

Christiansburg, that Congress's additional intention that Section 706(k) 

deter truly groundless employment discrimination suits could be 

accomplished adequately by permitting

9



a district court . . . [to] award attorney's fees to a prevailing 
defendant [only] upon a finding that the plaintiff's action was 
frivolous, unreasonable, or without foundation.

Id. at 421.

Even this standard, the Court recognized, carries with it the risk 

of impeding "vigorous enforcement of the provisions of Title VII." Id. 

at 422. Accordingly, the Court underscored the narrowness of lower 

courts' authority under the statute, admonishing that "even when the law 

or the facts appear questionable or unfavorable at the outset, a party 

may have an entirely reasonable ground for bringing suit," id., and 

cautioning them to "resist the understandable temptation to engage in 

post hoc reasoning by concluding that because a plaintiff did not 

prevail, his [or her] action must have been unreasonable or without 

foundation." Id. at 421-22. Such "hindsight logic," the Court 

explained, is impermissible because "decisive facts may not emerge until 

discovery or trial," and its application "could discourage all but the 

most airtight claims" of employment discrimination. Id. at 422.

The principles of Christiansburg have been applied and elaborated 

upon in a substantial body of case law in this and other Circuits, 

providing parties to Title VII cases fair notice of the predicate for 

liability for an opponent's fees and alerting district courts to the 

limits of their statutory authority. Notably, appellate courts have 

reversed a high percentage of district court orders awarding attorneys' 

fees to defendants, and even those upholding such awards have taken

10



pains to affirm that the statute authorizes such awards only in "truly 

egregious cases of misconduct."3

Indeed, even prior to Christiansburg, this Court held in Carrion 

v. Yeshiva University, 535 F.2d 722 (2d Cir. 1976), that a prevailing 

defendant could recover fees in a Title VII case only where the 

plaintiff had brought a baseless or meritless lawsuit. When Congress 

enacted the Civil Rights Attorney's Fees Awards Act of 1976, amending 42 

U.S.C. § 1988 -- also before the Supreme Court's decision in 

Christiansburg -- it cited Carrion with approval as establishing the

3Jones v. Continental Corp., 789 F.2d 1225, 1232 (6th Cir.
1986). See also Foster v. Mydas Assoc., Inc., 943 F.2d 139, 143 (1st 
Cir. 1991) ("egregious"); EEOC v. Bellemar Parts Indus., 868 F.2d 199, 
199 (6th Cir. 1989) . Courts have time and again stressed that "Only in 
exceptional cases did Congress intend that defendants be awarded 
attorney's fees under Title VII." Mitchell v. Office of Los Angeles 
County Superintend, of Sch., 805 F.2d 844, 848 (9th Cir. 1986) (emphasis 
added). See Mitchell v. Los Angeles County Cowmun. Coll. Dist., 861 
F.2d 198, 202 (9th Cir. 1988) (same). The Christiansburg standard is "a 
'stringent' one," Busby v. City of Orlando, 931 F.2d 764, 787 (11th Cir. 
1991) (quoting Christiansburg, 434 U.S. at 421), which "is, and should 
remain, difficult to meet." Foster, 943 F.2d at 145. See also Barry v. 
Fowler, 902 F.2d 770, 773 (9th Cir. 1990) (refusing to award attorneys' 
fees against plaintiff even while affirming court's entry of directed 
verdict for defendant).

Because the Civil Rights Attorney's Award Act of 1976, 42 U.S.C.
§ 1988 (1994), is "legislation similar in purpose and design to Title 
VII's fee provision," New York Gaslight Club v. Carey, 447 U.S. 54 
(1980), the Christiansburg dual standard has been held to apply to cases 
under that statute, and the two laws have been interpreted in pari 
passu. See, e.g., Hensley v. Eckerhart, 461 U.S. 424,
433 n.7 (1983). Accordingly, cases addressing fee awards under 
Section 706(k) and under Section 1988 may be cited interchangeably in 
explicating the Christiansburg standard.

11



proper standard for an award of fees to a prevailing defendant. See

H.R. Rep. No. 94-1558, 94th Cong., 2d Sess at 6-7 (1976).

The District Court Failed to Analyze the Case Under the 
Christiansburg Standard.

Beyond its bare acknowledgment of the controlling effect of the 

Christianshurg precedent, the district court's 1993 fees decision shows 

little sign of faithful application of the dual standard that Title VII 

has been construed to impose. Instead, the court described the Supreme 

Court's Christiansburg decision as "engraft ting] ," 825 F. Supp. at 469, 

a distinction between successful Title VII plaintiffs and defendants 

upon a provision that speaks generically of "prevailing part[ies]." 

AFSCME III, 825 F. Supp. at 469 (emphasis in original). The opinion 

then suggests:

[P]erhaps the correct path to have followed would have been the 
one marked by the plain meaning of the statute derived from the 
unambiguous words "prevailing party." If Congress did not intend 
that the prevailing party - whether it be plaintiff or defendant — 
could recover attorney's fees, it would have authorized fees for 
one or the other.

825 F. Supp. at 470. While stating that "it is too late in the day to 

gainsay the holding of Christiansburg," the opinion likens the Supreme 

Court's caution against "post hoc" reasoning to a "ghost[] of the past 

stand[ing] in the path of justice clanking [its] medieval chains" and a 

"catch phrase [] keep[ing] analysis in fetters."4 Id. at 473. These

“Even were the district court not constrained to follow binding 
Supreme Court precedent, its "plain meaning" criticism is far from 
unanswerable. Christiansburg does not disrespect Congress's conceded

12



observations are supplemented, finally, by extensive quotation of 

general statements culled from famous early-twentieth century judicial 

opinions, to the effect that outmoded or misguided judicial rules should 

be discarded.5

intention, expressed in the provision's text, that Title VII defendants, 
as well as plaintiffs may be awarded attorneys' fees. It instead is 
addressed to the distinct inquiry as to how courts should exercise the 
"discretion" conferred by the statute — a point on which the provision 
is silent, but for which Congress's intent was readily discernable. See 
Flight Attendants v. Zipes, 491 U.S. 754, 761 (1989) (statutes should be 
interpreted "in light of the competing equities that Congress normally 
takes into account").

Nor should the whiff of illegitimacy attach to the High Court's 
effort to identify categorical principles to inform an exercise of 
discretion, particularly in an arena where parties' mistaken legal 
predictions are costly. See Zipes, 491 U.S. at 760-61 (explaining 
reliance on "categorical" rules under attorneys' fees statutes).

In any event, whatever persuasive force the "literal meaning" 
analysis may have had at the time Christiansburg was decided is sharply 
diminished by repeated indications of congressional approval of the 
decision in subsequent years. See, e.g., H.R. Conf. Rep. No. 103-488, 
103d Cong., 2d Sess. (1994), reprinted in 1994 U.S.C.C.A.N. 699, 727
(stating congressional intent that fees provision of the Freedom of 
Access to Clinic Entrances Act of 1994, 18 U.S.C.A. § 248(c)(1)(B) (1995
Supp.), be interpreted in accordance with Christiansburg); H.R. Rep. No. 
101-485(11), 101st Cong., 2d Sess. (1990), reprinted in 1990 
U.S.C.C.A.N. 267, 423 (stating congressional intent that fees provision 
of the Americans with Disabilities Act of 1990, § 505, 42 U.S.C. § 12205 
(1994), be interpreted in accordance with Christiansburg, 
notwithstanding absence of textual indication of asymmetry); cf. H.R.
Rep. No. 94-1558, 94th Cong., 2d Sess. at 6-7 (1976) (stating 
congressional intent prior to Christiansburg that Civil Rights 
Attorney's Award Act of 1976, 42 U.S.C. § 1988 (1994), be interpreted to 
apply "a different standard for prevailing defendants because they do 
not appear before the court cloaked in the mantle of public interest," 
notwithstanding absence of textual indication of asymmetry) (internal 
citations omitted).

bSee AFSCME III, 825 F. Supp. at 470, quoting Funk v. United 
States, 290 U.S. 371, 382 (1933), and United Australia Ltd. v. Barclay's

13



It is also clear from the face of the opinion below that the

district court succumbed in this case to the "understandable temptation"

to base its determination of frivolousness on a post hoc evaluation of

facts developed at trial. Indeed, the opinion expressly announces an

unwillingness to be "shackle[d]" by the Supreme Court's teaching on this

point. Although Christianshurg does acknowledge that the frivolousness

of a case may sometimes become clear only as facts are developed or the

law has been clarified, we know of no other case (particularly where

there was no finding of bad faith or vexatious purpose) in which a

plaintiff party was assessed fees based on a court's assessment of a

witness's demeanor or of competing statistical evidence. To the

contrary, courts have rightly explained that:

It cannot be said that a plaintiff must anticipate adverse 
evidentiary rulings . . .  or risk being held liable for attorney's 
fees . . . .

Figures v. Board of Public Utils., 967 F.2d 357, 362 (10th Cir. 1992).6

Bank Ltd., (1941) A.C. 1, 29, quoted in Woods v. Lancet, 303 N.Y. 349, 
355, 102 N.E. 2d 691, 694 (1951). These ruminations, combined with the 
pointed references to the alleged clarity of the statutory text, would 
make for an unlikely preface to an opinion faithfully applying the 
standards of Christianshurg and its progeny.

6 In any event, Christianshurg does not authorize an award of 
attorneys' fees incurred from a suit's inception when the suit's 
untenability becomes apparent at some later stage in the case.

To be sure, there will be rare cases in which a court will realize 
only at trial that a case was utterly without foundation 
from the start — for example, when a plaintiff is shown to have 
fabricated a claim. See, e.g., Carrion, 535 F.2d at 728 (finding that 
the plaintiff's testimony on which her claim relied, "constituted an 
unmitigated tissue of lies"). Such a case is far removed from this one.

14



B. The Court below Disregarded Settled Law Guiding the Application of 
the Statute
While professing allegiance to Christiansburg's holding that 

courts are unauthorized to award fees to defendants under Section 706(k) 

unless a case is without foundation, the district court's opinion is 

bereft of any citation to a case under Section 706(k) decided by this 

Court — or any other — since Christiansburg was handed down in 1978. A 

survey of those cases, and of the objective "rules of thumb" that may be 

distilled from them, indicates that plaintiffs' case is a highly 

unlikely candidate to be branded "frivolous."

First. the district court refused to dismiss plaintiffs' central 

pay equity claim. AFSCME I, 609 F. Supp. at 710-11. Courts have 

consistently held that the fact that a claim survives a motion to 

dismiss and proceeds to trial is strong evidence of non-frivolousness.7

7See United States, v. Mississippi, 921 F.2d 604, 609 (5th Cir. 
1991) ("The factors important to frivolity determinations are:
(1) whether plaintiff established a prima facie case, (2) whether the 
defendant offered to settle, and (3) whether the district court 
dismissed the case or held a full blown trial."); Sullivan v. School Bd. 
of Pinellas County, 111, F.2d 1182, 1189 (11th Cir. 1985) (same); Miller 
v. Los Angeles County Bd. of Educ., 827 F.2d 617, 620 (9th Cir. 1987)
("A court should be particularly chary about awarding attorneys' fees 
where the court is unable to conclude that the action may be dismissed 
without proceeding to trial").

Courts of appeals have warned lower courts to be especially 
cautious about awarding defendants fees after permitting a case to go to 
trial because, if not exactingly targeted only at truly frivolous cases, 
the enormous economic consequences of such awards risk significantly 
chilling all public interest litigation:

Massive fee awards against plaintiffs who continue to trial 
are contrary to Congress' goal of promoting vigorous

15



Second. plaintiffs made out a prima facie case of gender-based pay

discrimination by showing that, after applying Nassau County's objective 

job and salary classification factors, there persists an unexplained 

significant pay gap between predominantly male and female positions. 

AFSCME II, 799 F. Supp. at 1401.8 Notwithstanding the district court's

prosecution of civil rights violations under Title VII and 
§ 1983.

Sanchez v. City of Santa Ana, 936 F.2d 1027, 1041 (9th Cir. 1990) 
(internal quotation marks omitted).

[A]n award [of attorneys' fees] after a trial lasting only two and 
one-half days would bode ill for plaintiffs pursuing more complex 
claims requiring more time in court for the presentation of their 
evidence and rebuttal of defendants' claims. The chilling effect 
upon civil rights plaintiffs would be disproportionate to any 
protection defendants might receive against the prosecution of 
meritless claims.

Mitchell v. Office of Los Angeles County Superintend, of Sch., 805 F.2d 
844, 848 (9th Cir. 1986). Letting stand the district court's $1.5 
million fee award to defendants in this extraordinarily complex piece of 
public interest litigation, which the court permitted to go to trial, 
would have a very significant and wholly disproportionate chilling 
effect on efforts to safeguard the rights of victims of discrimination 
and the poor in areas where legal issues and proofs are complex. See 
infra.

eIn Title VII pattern-or-practice disparate treatment cases such 
as this, a prima facie case consists of statistics tending to show the 
existence of an unexplained gender or race-based differential with 
respect to the employment practice at issue. Hazelwood School District 
v. United States, 433 U.S. 299, 307-08 (1977) (citing Teamsters v.
United States, 431 U.S. 324, 339 (1977)); Segar v. Smith, 738 F.2d 1249, 
1278-79 (D.C. Cir. 1984). Upon such a showing,

The burden then shifts to the employer to defeat the prima facie 
showing of a pattern or practice by demonstrating that the 
[plaintiff's] proof is either inaccurate or insignificant.

Teamsters, 431 U.S. at 360.

16



naked assertion that plaintiffs' prima facie showing is "meaningless" in

assessing frivolousness, AFSCME III, 825 F. Supp. at 473, courts have 

treated "whether the plaintiff established a prima facie case" as an 

especially important factor "guid[ing] the [Christiansburg] inquiry." 

Walker v. Nationsbank N.A., 53 F.3d 1548, 1559 (11th Cir. 1995). See 

Marquart v. Lodge 837, Int'l Ass'n of Mach. & Aero. Workers, 26 F.3d 

842, 853 (8th Cir. 1994) ("[Plaintiff's] complaint makes out a prima 

facie case of discrimination, and therefore, her claims cannot be said 

to be frivolous, unreasonable, or groundless").9

Third, not only did defendants never move for summary judgment, 

but it is abundantly clear from the court's denial of defendants' motion 

to dismiss and its brusque treatment of their attempt to move for a 

directed verdict at trial that any summary judgment motion would have 

been denied. Courts not only treat denial of summary judgment as an 

indication that a case is not frivolous,10 but they similarly regard a

9 See also Mississippi, 921 F.2d at 609; Sullivan, 773 F.2d at 
1189; Le Beau v. Libbey-Owens-Ford, 799 F.2d 1152, 1159 (1986), as 
modified, 808 F.2d 1272 (7th Cir. 1987); Johnson v. Allyn & Bacon, Inc., 
731 F.2d 64, 74 (1st Cir. 1984) . Indeed, in the Fifth and Eleventh 
Circuits, only the three factors discussed supra note 7 
are generally considered in applying Christiansburg. See Walker, 53 
F . 3d at 1559; Mississippi, 921 F.2d at 609; Sullivan, 773 F.2d at 1189; 
EEOC v. Kimbrough Investment Co., 703 F.2d 98, 103 (5th Cir. 1983).

10See Walker, 53 F.3d at 1549; Maag v. Wessler, 993 F.2d 718, 721 
(9th Cir. 1993) ("[T]he fact that [the district court] denied
[defendants'] motion for summary judgment suggests that [plaintiff's] 
claims were not without merit").

17



defendant's failure to move for summary judgment as acknowledgement of a 

case's weight and merit.11

Fourth, this case raised and hinged on highly technical and 

complex issues of statistical proof and methodology, which, as the 

history of this litigation vividly illustrates, were sufficiently 

weighty to warrant very careful and detailed consideration by the 

district court. The Supreme Court has stressed that where claims are 

sufficiently weighty to warrant and receive "careful consideration" by a 

court, Hughes v. Rowe, 449 U.S. 5, 15-16 (1980) (per curiam), that fact 

constitutes evidence that they are not frivolous -- even where the 

claims "upon careful examination, prove legally insufficient to require 

a trial . . . ." Id.12

11See Nulf v. Int'l Paper Co., 656 F.2d 553, 564 (10th Cir. 1981)
(fact that defendant did not move for summary judgment treated as 
evidence that case was not frivolous); Sullivan, 773 F.2d at 1189 
(same) .

12 See also Busby v. City of Orlando, 931 F.2d at 787 (claims not 
frivolous where they "are meritorious enough to receive careful 
attention and review."); Melton v. Oklahoma City, 879 F.2d 706, 733 
(1989) ("The sheer length of [the 37-page court of appeals] opinion 
should suggest that the issues raised by plaintiff in his lawsuit were 
not frivolous"), modified in part on other grounds, (10th Cir. 1991) (en 
banc); EEOC v. Kenneth Balk & Assoc., 813 F.2d 197, 198 (8th Cir. 1987); 
Glymph v. Spartanburg Gen'l Hosp., 783 F.2d 476, 480 (4th Cir. 1986).

Moreover, this Court and other courts of appeals have 
recognized that "the complexity of the issues" raised is a strong 
indicator that an unsuccessful case was nonetheless non-frivolous. 
Colombrito v. Kelly, 764 F.2d 122, 132 (2d Cir. 1985) ("the complexity 
of the issues"). Accord Fort v. Roadway Express, Inc., 746 F.2d 744,
748 (11th Cir. 1984) ("[T]he novelty and difficulty of the issues 
presented by a plaintiff's claim . . . are relevant to the question of 
frivolousness . . . ").

18



Fifth, the court below indicated its unwillingness to enter

judgment for defendants at the close of plaintiffs' case, see Tr. 1281- 

19 (January 11, 1990). Courts uniformly have treated refusal to grant a 

directed verdict as highly probative, if not conclusive, evidence that a 

plaintiff's claim is not frivolous.13

Sixth, and of critical importance, plaintiffs in fact prevailed on 

one of their claims -- their Equal Pay Act challenge to the pay scale 

for predominantly female police detention aides as compared with 

predominantly male police officer turnkeys. See AFSCME II, 799 F. Supp. 

at 1408-09. This success yielded a $1.6 million backpay award. We know 

of no reported case in which an award of defendants' fees under 

Christiansburg has been upheld in a case where plaintiffs achieved a 

victory of such magnitude in the same case. Cf. Jane L. v. Bangerter,

61 F.3d 1505, 1513-17 (10th Cir. 1995) (reversing district court award 

of defendants' fees against partially prevailing plaintiffs).

13See Sassower v. Field, 973 F.2d 75, 79 (2d Cir. 1992);
Soderbeck v. Burnett County, 752 F.2d 285, 295 (7th Cir. 1985)
(surviving a motion for a directed verdict conclusively renders a case 
not frivolous); Brooks v. Cook, 938 F.2d 1048, 1055 (9th Cir. 1991) 
(appellate court's overturning district court's directed verdict for 
defendant conclusively renders case non-frivolous, requiring reversal of 
fees award); Nulf v. Int'l Paper Co., 656 F.2d at 564 (denial of motion 
treated as evidence that case not frivolous); Robinson v. Monsanto Co., 
758 F.2d 331, 336 (8th Cir. 1985) (same); Vaughner v. Pulito, 804 F.2d 
873, 878 (5th Cir. 1986). See also Kenneth Balk & Assoc., 813 F.2d at 
198 (defendant's failure to move for directed verdict during trial is 
evidence claims were not frivolous).

19



Nor does this case remotely resemble those in which courts of

appeals have upheld fee awards to prevailing defendants. Virtually all 

such cases arise from one of a few circumstances. One, as stressed by 

the Supreme Court in Christiansburg, is where a plaintiff brings a case 

in bad faith, making allegations that he or she knows to be false. 

Christiansburg, 434 U.S. at 422.14 A second occurs where a plaintiff 

sues in the face of an obvious legal bar15 or, even if technically not 

precluded, on an issue that has already been decided against the 

plaintiff in prior judicial or administrative rulings.16 A third is 

where a plaintiff plainly cannot make out an essential element of the 

claim alleged.17 And a fourth is in cases where a plaintiff adduces no

liSee, e.g., Carrion, 535 F.2d at 728 (finding that the 
plaintiff's testimony on which her claim relied, "constituted an 
unmitigated tissue of lies"); 1 Mary Frances Derfner & Arthur D. Wolf, 
Court Awarded Attorney Fees 1 10.04[3] [a] at 10-91 through 10-92 & n.22 
(Kevin Shirey rev. ed. 1995).

15See, e.g., Farad v. Hickey-Freeman Co., 607 F.2d 1025, 1027 
(2d Cir. 1979) (claim barred by Eleventh Amendment); Prate v. Freedman, 
583 F.2d 42, 47 (2d Cir. 1978) (attempt to attack collaterally consent 
judgment where well-established circuit law required challengers to 
proceed by means of a timely filed motion to intervene).

16See, e.g., Eastway Constr. Corp. v. City of New York, 762 F.2d 
243, 252 (2d Cir. 1985) ("In addressing the issue of attorneys' fees, we 
find it particularly noteworthy that [the plaintiff] had already 
challenged the [defendant's] policy in the state courts, and had been 
unsuccessful. These proceedings should at least have put it on notice 
of the possibility that its adversary might be awarded counsel fees"); 
Gerena-Valentin v. Koch, 739 F.2d 755, 761 (2d Cir. 1984); Carrion, 535 
F.2d at 728; 1 Derfner & Wolf, supra note 14, H 10.04 [3] [a] at 10-92 
through 10-93 & n.23.

17See, e.g., Eastway Constr. Corp., 762 F.2d at 249-52 (§ 1983 
claim fatally deficient where plaintiff "could not point to a

20



evidence whatsoever to support her claim.18 Cf. generally 1 Mary Frances

Derfner & Arthur D. Wolf, Court Awarded Attorney Fees U 10.04[3][a] at 

10-101 n.34.2 (Kevin Shirey rev. ed. 1995) ("Courts have generally 

denied fees where the plaintiff was able to produce even a modicum of 

evidence to support her claims").

C. The Determination of Frivolousness Rests on an Erroneous 
Understanding of the Law Relating to Statistical Evidence
As shown above, had the district court reckoned with the case law

giving content to Section 706(k)'s "frivolousness" prerequisite,

defendants plainly would not have been awarded fees. But the fee award

is infirm for a further reason: even had the court not applied the

wrong legal standard under §706(k), the findings giving rise to the

district court's harsh assessment of plaintiffs' case themselves betray

a serious misapprehension of Title VII law.

The conclusions that plaintiffs' statistical analyses were "of no

weight" and devoid of "probative value," AFSCME II, 799 F. Supp. at

1381, 1383, 1390 -- virtually the only basis cited for pronouncing

plaintiffs' case "frivolous" -- rest on an assumption that omission of a

potentially significant explanatory variable wholly undermines a party's

statistical showing. That assumption, however, is flatly inconsistent

deprivation of any single right conferred by federal law or the United 
States Constitution").

10 See, e.g., Buford v. Tremayne 747 F.2d 445, 448 (8th Cir.
1984); Gerena-Valentin v. Koch, 739 F.2d at 761 (2d Cir. 1984); American 
Family Life Assurance Co. v. Teasdale, 733 F.2d 559, 569 (8th Cir.
1984) .

21



with what this Court and the Supreme Court have taught. In Bazemore v.

Friday, 478 U.S. 385 (1986), the High Court cautioned that it rarely 

will be sufficient for a defendant in an employment discrimination case 

merely to identify factors (allegedly) overlooked in a plaintiff's 

statistical analysis. The Court instead "require[d] a defendant 

challenging the validity of a multiple regression analysis to make a 

showing that the factors it contends ought to have been included would 

weaken the showing of . . . disparity made by the [plaintiff's]

analysis." Sobel v. Yeshiva University, 839 F.2d 18, 34 (2d Cir. 1988) 

(summarizing Bazemore's holding).

This Court is not faced with the question whether the ruling of 

the court below on the merits of the Title VII claim was reversible 

error, and even if the court's critique of plaintiffs' statistical 

showing had been entirely on target, the legality of awarding fees to 

defendants in this case -- where all parties acknowledged that salaries 

were higher in "male" jobs than in "female" jobs which (according to 

Nassau's own evaluation system) required no less training, effort, or 

responsibility, and where disagreement was limited to whether other 

(legitimate) factors could account for the disparity -- would be highly 

doubtful. It is especially inconsistent with the Act, however, to 

uphold an award premised on so questionable a reading of Title VII law.

22



II. The **Frivolousness" vel non of a Legal Claim Does not Depend on
the Identity of the Party Bringing It.
In construing § 706(k) to authorize an attorneys' fee award, the 

district court placed great emphasis on the fact that AFSCME, which the 

court called "the real plaintiff" in the case, AFSCME III, 825 F. Supp. 

at 473, is "a major union" and a "dominant force on the labor scene." 

Although the court reasoned that the statute would not permit a fee 

award had the case been brought by "a modestly salaried" individual 

plaintiff, it held that the "purpose of the Act . . . would [be]

further[ed]" by adjudging the labor union's claim "frivolous."

Because it is clear that, under established standards, plaintiffs' 

litigation of this case could not have been "frivolous," see supra, the 

decision below may stand only if the attorneys' fee provision can be 

construed as imposing a different liability standard in cases brought by 

wealthier or more prominent plaintiffs. It does not.

As an initial matter, the reasoning of the decision below cannot 

be squared with Christiansburg itself -- the case first construing the 

statute as limiting courts' § 706 (k) authority to "frivolous" cases.

That case involved as plaintiff the Equal Employment Opportunity 

Commission, a government agency whose resources and prominence are at 

least on a par with those of AFSCME. See 434 U.S. at 422 n.20. In 

subsequent cases, moreover, courts have understood Christiansburg's 

teaching that frivolousness must be determined through an objective

23



assessment of the factual and legal foundation for the claim to 

foreclose any consideration of the identity of the party bringing it.19

Whatever reasons might exist for allowing a larger fee award 

against a wealthier plaintiff who is properly found, under generally 

applicable standards, to have filed a groundless or vexatious suit, see, 

e.g., Tonti v. Petropoulous, 656 F.2d 212 (6th Cir. 1981), the statute 

no more allows adjustment of the "frivolousness" threshold to the 

identity of the "real plaintiff" than it would permit the determination 

whether the plaintiffs "prevailed" (the threshold for awarding fees to 

plaintiffs, see, e.g., Farrar v. Hobby, 506 U.S. 103 (1992)) to depend 

on the resources or prestige of the defendant.20 Indeed, courts 

repeatedly have rebuffed analogous efforts to introduce into the law

19£ee Parks v. Watson, 716 F.2d 646, 664 (9th Cir. 1983) ("no 
authority . . . support[s] . . .  a distinction" between plaintiffs who
have "considerable financial resources" and other civil rights 
plaintiffs); see also Alizadeh v. Safeway Stores, Inc., 910 F.2d 234,
238 (5th Cir. 1990) ("The Supreme Court has never intimated that a 
party's financial condition is a proper factor to consider in 
determining whether to award attorney's fees against that party. . . .
We hold it is not.") (emphasis in original).

20This is not to say that a particularly impecunious plaintiff 
who might otherwise be liable for her opponent's fees could not be 
excused, cf. Hughes v. Rowe, 449 U.S. at 15 (stressing that 
determination to award fees should take into account the liberal 
construction principles of Haines v. Kerner, 404 U.S. 519 (1972)), just 
as the law provides for an exception to the rule of presumptive 
entitlement for prevailing plaintiffs where "special circumstances would 
render such an award unjust," Christiansburg, 434 U.S. at 416-17, or 
that the amount of an award could not be adjusted to reflect a 
plaintiff's modest means, see, e.g., Farad v. Hickey-Freeman Co., Inc., 
607 F.2d at 1028 (less than complete fee award upheld); Miller v. Los 
Angeles County Bd. of Educ., 827 F.2d at 621 n.5 (same).

24



under Section 706(k) (and comparable fee-shifting provisions) a 

distinction between organizations and other plaintiffs with independent 

means on one hand and individual claimants on the other. Courts 

routinely uphold fee awards to (prevailing) plaintiffs who are much 

further removed from the category of "modestly salaried employee[s]" 

than AFSCME has been asserted to be, in the face of defendants' 

objections that those plaintiffs were neither needy nor public- 

spirited .21

Nor is the decision below supportable as more broadly "furthering 

the purposes of the Act." Compare Parks, 716 F.2d at 664 (awarding 

attorneys' fees more readily against wealthier Section 1988 plaintiffs 

would be "contrary to the purposes of the Act"). First, the distinction 

relied upon below risks arbitrariness: in civil rights class actions, 

the identity of the named plaintiff (or even of the entire plaintiff 

class) gives no reliable indication of the resources and expertise that 

plaintiffs actually will be able to bring to bear on their case. Not 

only are courts ill-equipped to make the policy determination that a 

particular plaintiff's ability to pay should trump concerns about

2lSee, e.g.. Jones v. Wilkinson, 800 F.2d 989 (10th Cir. 1986) 
(corporate plaintiffs are entitled to attorneys fees under § 1988 for 
successful challenge to constitutionality of cable television 
regulation), aff'd, 480 U.S. 926 (1987); Herrington v. County of Sonoma, 
883 F. 2d 739 (9th Cir. 1989) Sable Communications, Inc. v. Pacific Tel 
& Tel. Co., 890 F.2d 184 (9th Cir. 1989) (commercial provider of "phone 
sex" entitled to recover fees in First Amendment case); cf. Blum v. 
Stenson, 465 U.S. 886, 895; Hensley v. Eckerhart, 461 U.S. 424 (1983) 
(rejecting defendant's assertion that awarding fees at market rates to 
non-profit legal aid attorneys would be a "windfall").

25



deterring non-frivolous suits, see Parks, 716 F.2d at 665 ("It would be 

impossible for a court to determine at what point a plaintiff's 

financial resources are large enough" to depart from the Christiansburg 

rule), but, faced with such unpredictability, plaintiffs with 

potentially meritorious claims could be expected to err on the side of 

caution.

To the extent that such a distinction could be workable, moreover, 

it would be perverse. As a factual matter, of course, the suggestion 

that AFSCME is the "real plaintiff" in this case is plainly erroneous: 

the "real plaintiff" here is not the union, but its individual members, 

almost all of whom are the "modestly salaried" individuals for whom the 

opinion below professes to reserve its concern. Cf. Railroad Trainmen v. 

Virginia Bar, 377 U.S. 1, 7 (1964) (unions and other associations are 

"but the medium through which individual members seek to make more 

effective the expression of their views"). To the extent that 

plaintiffs prevailed (on the single Equal Pay Act claim), the relief 

obtained was paid to the victims of discrimination, and the same would 

be true had the broad "pay equity" claim succeeded. In fact, the 

characterization of AFSCME as the "real plaintiff" in this case bespeaks 

an outmoded image of unions and public interest lawyers as "'stirring 

up' . . . frivolous or vexatious litigation" -- one which has been

energetically repudiated by the Supreme Court. See In re Primus, 436

26



U.S. 412 (1978); Railroad Trainmen v. Virginia Bar, 377 U.S. 1 (1964);

NAACP v. Button, 371 U.S. 415 (1963).

Far from supporting a rule treating suits brought by unions more 

harshly than individual claims, the case law instead recognizes that 

"collective activity undertaken to obtain meaningful access to the 

courts is a fundamental [constitutional] right," United Transportation 

Union v. Michigan Bar, 401 U.S. 576, 585 (1971), and that, because 

"laymen cannot be expected to know how to protect their rights when 

dealing with practiced and carefully counseled adversaries," Railroad 

Trainmen, 377 U.S. at 7, their associating "to help one another to 

preserve and enforce rights granted under federal laws cannot be 

condemned," id.22 Indeed, because "an association suing to vindicate 

the interests of its members can draw upon a pre-existing reservoir of 

expertise and capital that individual plaintiffs lack" and because 

courts can rely on such expertise to "sharpen the presentation of 

issues" in difficult cases, id., suits by unions on their members' 

behalf have been acknowledged as "advantageous" not only "to the 

individuals represented," but also "to the judicial system as a whole." 

United Automobile Workers v. Brock, 477 U.S. 474, 289 (1986).

22See also Citizens Against Rent Control v. Berkeley, 454 U.S. 
290, 296 (1981) (no lawful distinction may be drawn between individual 
and group expenditures on ballot referendum); Livadas v. Bradshaw, 129 
L. Ed. 2d 93, 105 (1994) (state's award of benefits only to workers who 
are not covered by collective bargaining agreements has a "direct 
tendency to frustrate the purpose of" the National Labor Relations Act) 
(quoting Nash v. Florida Industrial Comm'n, 389 U.S. 235 (1967)).

27



Nor has Congress expressed any intention to discourage labor 

unions from bringing such cases on behalf of their members. On the 

contrary, Title VII, 42 U.S.C. § 1981, and federal labor law make it 

illegal for a union to fail to prosecute fully claims of race and gender 

discrimination arising within a collective bargaining unit. Goodman v. 

Lukens Steel, 482 U.S. 656, 668-69 (1987)(Title VII and § 1981 liability 

established when "a union . . . intentionally avoids asserting

discrimination claims" on behalf of black employees); Conley v. Gibson, 

355 U.S. 41, 46-47 (1957) (statutory duty of fair representation 

requires that union object to unjust dismissal of workers without regard 

to race); Johnson v. Palma, 931 F.2d 203, 208 (2d Cir. 1991). Thus, the 

decision below places unions in an impossible dilemma: if they fail to 

bring apparently meritorious discrimination claims on behalf of their 

members they may be in violation of Title VII; if they bring such a case 

and lose, they may be assessed ruinous attorneys' fees.

Moreover, unfavorable treatment for civil rights cases brought by 

"large" entities will operate, in practice, as a discrimination against 

"large" claims. The presence of a union as a plaintiff in a civil 

rights suit is frequently a sign that the case is a complex one, often 

involving allegations of a broad pattern of illegal discrimination.

While cases arising from direct evidence of discriminatory intent or 

isolated instances of job bias typically do not require a massive 

commitment of a lawyer's time and resources, challenges to entrenched 

practices of job discrimination -- which affect large classes of

28



employees and which typically are aggressively defended by wealthy 

corporations, governments, and labor unions -- rarely can be litigated 

by sole practitioners (at least without the assistance of organizations 

with the legal staffs and resources necessary to underwrite the 

collection and analysis of the voluminous data involved).23

Further, the rule espoused by the district court is not limited to 

labor unions or Title VII cases, since the various statutes providing 

for fees in civil rights cases are construed similarly. The National 

Association for the Advancement of Colored People (NAACP) has brought 

innumerable cases in its own name on behalf of its members and the

23Cf., e.g., Missouri v. Jenkins, 491 U.S. 274, 283 n.6 (1989) 
(upholding fee enhancement for delay in paying prevailing 
plaintiffs' counsel):

In order to pay his staff and meet other operating expenses, 
[plaintiffs' attorney] was obliged to borrow $633,000. As of 
January 1987, he had paid over $113,000 in interest on this debt, 
and was continuing to borrow to meet interest payments. The LDF, 
for its part, incurred deficits of $700,000 in 1983 and over $1 
million in 1984, largely because of this case. If no compensation 
were provided for the delay in payment, the prospect of such 
hardship could well deter otherwise willing attorneys from 
accepting complex civil rights cases that might offer great 
benefit to society at large; this result would work to defeat 
Congress' purpose in enacting § 1988 of "encouraging] the 
enforcement of federal law through lawsuits filed by private 
persons."

(citations omitted). See also Bradley, 416 U.S. at 708 (" [c]ases of 
this kind were characterized by complex issues pressed on behalf of 
large classes and thus involved substantial expenditures of lawyers' 
time with little likelihood of compensation or award of monetary 
damages. If forced to bear the burden of attorneys' fees, few aggrieved 
persons would be in a position to secure their and the public's 
interests in a nondiscriminatory public school system").

29



public as a whole to vindicate civil rights in a variety of contexts.24 

The reporters are replete with cases filed by other organizations to 

achieve voting rights,25 fair housing,26 and school integration,27 some of 

which were won and others lost. Every one of these organizations would 

be in grave danger of financial disaster if second-guessed by district 

courts and assessed attorneys' fees after an apparently meritorious case 

were lost at trial. Faced with such a possibility, organizations

24See. e.g., NAACP v. Hampton Cty. Election Comm'n, 4 70 U.S. 166 
(1985) (voting rights); NAACP v. New York, 413 U.S. 345 (1973) (voting
rights); NAACP v. Town of East Haven, __ F.3d __, 1995 U.S. App. LEXIS
30823 (2d Cir. Oct. 20, 1995) (public employment); NAACP v. City of 
Niagara Falls, 65 F.3d 1002 (2d Cir. 1995) (voting rights); Jacksonville 
Branch, NAACP v. Duval Cty. Sch. Bd., 978 F.2d 1574 (11th Cir. 1992);
Georgia State Conf. of Branches of NAACP v. Georgia, 775 F.2d 1403 (11th 
Cir. 1985) (discrimination in special education); NAACP v. Wilmington 
Medical Center, Inc., 657 F.2d 1322 (3d Cir. 1981) (health care access).

2bSee, e.g., Southern Christian Leadership Conf. v. Sessions, 56 
F.3d 1281 (11th Cir. 1995), cert, petition filed, (Oct. 12 1995); League 
of United Latin American Citizens (LULAC) v. Clements, 999 F.2d 831 (5th 
Cir. 1993), cert, denied, 127 L. Ed. 2d 74 (1994); LULAC v. Midland
Indep. Sch. Dist., 829 F.2d 546 (5th Cir. 1987); Puerto Rican Org. for 
Political Action v. Kusper, 490 F.2d 575 (7th Cir. 1973); Puerto Rican 
Legal Defense & Educational Fund v. Gantt, 796 F. Supp. 681 (E.D.N.Y.)
(3 judge court), vacated as moot, 121 L. Ed. 2d 3 (1992).

26See, e.g., Fair Housing Council v. Ayres, 855 F. Supp. 315 (C.D. 
Cal. 1994); Metro Fair Housing Services v. Morrowood Garden Apts., 576 
F. Supp. 1090 (N.D. Ga. 1983), rev'd in part, 758 F.2d 1482 (11th Cir. 
1985); Williamsburg Fair Housing Committee v. N.Y. City Housing Auth. , 
493 F. Supp. 1225 (S.D.N.Y. 1980).

21 See, e.g., United States v. LULAC, 793 F.2d 636 (5th Cir. 1986) 
(discrimination in teacher testing); United States & Mexican American 
Legal Defense Fund v. Texas, 680 F.2d 356 (5th Cir. 1982); Norwalk 
Chapter of the Cong, of Racial Equal, v. Norwalk Bd. of Educ., 423 F.2d 
121 (2d Cir. 1970).

30



dedicated to achieving equal civil rights would be forced to forego 

litigation in order to survive.

Congress has given no indication of an intention to specially 

disadvantage organizations and other parties seeking relief under 

complex, as against relatively straightforward, legal theories. On the 

contrary, it only recently has acted to adjust the standards of proof to 

assure that victims of employment discrimination may obtain relief on a 

"disparate impact" theory, see Civil Rights Act of 1991, Pub. L. No. 

102-166, § 105(a), 105 Stat. 1071, 1074-75 (1991) (codified at 42 U.S.C. 

§ 2000e-2(k) (1994 )), 28 and it has recognized that serious violations of 

civil rights laws will go unchallenged if even prevailing plaintiffs are 

required to bear the costs of expert statistical analysis. Id. § 113(b) 

(codified at 42 U.S.C. § 2000e-5 (k) ) ,29

28In Title VII disparate impact cases,

Prior to 1989, the "business necessity" showing was an affirmative 
defense for which the defendant bore the burden of proof and risk 
of nonpersuasion. In 1989, the Supreme Court in Wards Cove 
Packing Co. v. Atonio, 490 U.S. 642 (1989), changed the law,
[making it more difficult for plaintiffs to prevail in disparate 
impact cases]. These changes were statutorily reversed by the 
Civil Rights Act of 1991.

Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1117 n.5 (11th Cir. 1993) 
(citations omitted).

29Indeed, when Congress has meant to make the status of the 
plaintiff relevant to whether an award of attorneys' fees is 
appropriate, it has done so explicitly. Prior to the 1988 amendments to 
the Fair Housing Act, for example, attorneys' fees were authorized in 
housing discrimination suits only when "in the opinion of the court [,]" 
the prevailing plaintiff was "not financially able to assume [her] 
attorney's fees." 42 U.S.C. § 3612(c) (1988). See, e.g., Clemons v.

31



Ill • Application of Section 113 of the Civil Rights Act of 1991
Having decided that Nassau County was entitled to a fee award, the 

district court awarded an additional $582,000, reflecting the full 

amount of fees paid by defendants to their expert witnesses. In 

ordering this further award, the court rejected plaintiffs' claim that 

such an award would entail "retroactive" application of Section 113 of 

the 1991 Civil Rights Act, in contravention of Landgraf v. USI Film 

Prods., 128 L. Ed. 2d 229 (1994), and Rivers v. Roadway Express, 128 L. 

Ed. 2d 274 (1994) .

There is no need for this Court to pass upon the application of 

Section 113 to this case, because the experts' fees awarded must be 

reversed for failure to meet the requirement of "frivolousness" imposed 

by Section 706(k), see discussion supra, and left unaltered by the 1991 

amendment of that provision. Moreover, this appeal, involving the 

highly unusual event of an award of fees against plaintiffs, is not the 

proper occasion for articulating a general rule concerning the temporal 

sweep of the 1991 Amendment.

We note, however, that the district court's conclusion -- that, in 

a proper case, expert fees incurred prior to 1991 would be recoverable 

under amended Section 706(k) -- is a correct application of the 1991

Runk, 402 F. Supp. 863 (S.D. Ohio 1975) (prevailing plaintiff whose 
annual income exceeded $30,000 ineligible to receive fees). The 
provision was amended specifically to assure that a prevailing party's 
entitlement to fees no longer would depend on his or her means. See 42 
U.S.C. § 3613(c) (2) (1994) .

32



Act. As the court below recognized, Landgraf and Rivers, while denying

retroactive effect to specific portions of the 1991 Act, instructed that 

the Act's applicability to pending cases must be analyzed on a 

provision-by-provision basis. Indeed, the Landgraf majority went "out 

of its way" to acknowledge the continued vitality of Bradley v. School 

Board of Richmond, 416 U.S. 696 (1974), see 128 L. Ed. 2d at 267

(Scalia, J., concurring), which held that, notwithstanding the law's 

general bias against retroactivity, certain sorts of newly enacted 

statutes are presumed to apply to pending cases. See Landgraf, 128 L. 

Ed. 2d at 259-61; Vernon v. Cassadega Valley Cent. School Dist., 49 F.3d 

886, 890 (2d Cir. 1995) ("applying Langraf requires courts to determine 

whether a portion of a statute operates retroactively or prospectively, 

and, in connection with that determination, to resolve whether the 

statutory provision at issue is substantive or procedural").

Section 113 of the 1991 Act, which clarified that the testimonial 

and nontestimonial expenses of experts are part of the costs, including 

attorneys' fees, awardable to prevailing parties under Section 706(k) is 

indistinguishable from the fee-shifting statute held in Bradley to apply 

to cases which had already been tried at the time of the statute's 

enactment. As such, Bradley compelled the district court in 1993 to 

apply Section 113 of the 1991 Act to any case pending before it.30

30The Court in Bradley noted, see 416 U.S. at 707-08 (as did the 
Landgraf majority, see 128 L. Ed. 2d at 260), that concerns that the 
burdened party would be unfairly surprised by the application of the

33



CONCLUSION
"It is [the Supreme] Court's responsibility to say what a statute 

means, and once the Court has spoken, it is the duty of other courts to 

respect that understanding of the governing rule of law." Rivers, 128 L. 

Ed. 2d at 289. That duty was not honored in this case. In Christiansburg, 

the Supreme Court construed Section 706 (k) as authorizing attorneys' fee 

awards under a dual standard, explaining that Congress's paramount 

objective -- ensuring full enforcement of the nation's antidiscrimination 

laws -- permitted district courts to award such fees against unsuccessful 

Title VII plaintiffs only in a narrow class of cases: where resort to the 

legal process (even if not undertaken with subjective "bad faith") was, 

based on the facts known and the state of the law, "egregious." This 

teaching has been respected and elaborated upon in subsequent decisions of

subsequently enacted fees statute were muted in that case by the fact 
that the district court had originally awarded fees under a different 
theory, but cf. Alyeska Pipeline Co. v. Wilderness Soc., 421 U.S. 240 
(1975) (holding that courts may not, absent statutory authorization, 
award fees to prevailing plaintiffs as "private attorneys general").
This case is not materially different. As in Bradley, at the time of 
this case's filing (and during the time when the statistical analyses 
were performed), expert fees were available as part of an attorneys' fee 
award in this Circuit. See, e.g., Overseas African Construction Corp. 
v. McMullen, 500 F.2d 1291, 1297 (2d Cir. 1974) .

We should note, however, that Bradley might nonetheless be read as 
precluding an expert fee award to a prevailing defendant. While stating 
a presumption in favor of application of provisions like Section 113 to 
pending cases, Bradley also requires courts to look at both the position 
of the prevailing parties and the public interests implicated in 
determining whether to apply a later-enacted statutory provision. Thus, 
a distinction between defendants and plaintiffs (who come "cloaked in 
the public interest") in determining the appropriateness of applying 
Section 113 to pending cases might yet be appropriate.

34



this Court and others, which have recognized the real dangers of awarding 

fees against plaintiff parties in cases where the plaintiff's case is other 

than utterly without foundation. This Court has recognized, as well, the 

important and often indispensable role played by public interest law firms 

and labor unions in protecting the civil rights of "modestly salaried" 

individuals (not to mention unions' legal obligations to vindicate such 

rights) .

The decision below ignores these principles, and, if permitted to 

stand, will deprive those who suffer discrimination of the assurance 

intended by Congress that (provided that their claim is colorable and 

brought in good faith) they will be sheltered from liability for fees.31

31Because a sound reading of the law makes abundantly clear 
that the statute will not authorize an award against plaintiffs in this 
case, there is no need for further district court proceedings. In 
similar cases where district courts have applied incorrect legal 
standards in assessing frivolousness, courts of appeals consistently 
have reversed fee awards outright, rather than remanding for 
reconsideration, where it is clear that the record would not support an 
award. See EEOC v. Reichhold Chemicals, Inc., 988 F.2d 1564, 1572 (11th 
Cir. 1993) (finding district court misapprehended the Christiansburg 
standard, and reversing a fee award rather than remanding because record 
did not support award); Marquart, 26 F.3d at 854 (finding district 
court applied wrong legal standard in assessing frivolousness, and 
reversing rather than vacating because record did not support award).
Cf. Sobel, 839 F.2d at 37 ("A district court judge's adamance in making 
an erroneous ruling may justify remanding the case to a different 
judge") (internal citation omitted).

35



Respectfully submitted

Herbert Eisenberg
National Employment Lawyers

Association, New York Chapter 
377 Broadway 
New York, N.Y. 10013 
(212) 966-900

Donna Lenhoff
Women's Legal Defense Fund 
1875 Connecticut Ave., N.W. 
Washington, D.C. 20009 
(202) 986-2600

Leon Friedman
New York Civil Liberties Union 
132 West 43rd Street 
New York, N.Y. 10036 
(212) 382-0557

Elaine R . Jones 
Director-Counsel

(La k. j u,__
Theodore M . Shaw 
David T. Goldberg 
Charles Stephen Ralston 
Paul K. Sonn*
NAACP Legal Defense 

and Educational Fund, 
99 Hudson Street 
New York, N.Y. 10013 
(212) 219-1900

Attorneys for Amici Curiae

*Counsel of Record

Inc.

36



CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing Brief of Amici Curiae in 
Support of Plaintiffs-Appellants have been served by first-class mail, 
postrage paid, on this Fifteenth of November, 1995, addressed to the 
following:

Paul M. Smith, Esq. 
Jenner & Block 
601 13th Street, N.W. 
Washington, D.C 20005

William H . Pauley , III, Esq . 
Snitow &. Pauley 
345 Madison Ave.
New York, N.Y. 10017

(tLJf
Paul K. Sonn