Chicano Police Officer's Ass'n v. Stover

• Decision Date: 17 June 1980
• Docket Number: No. 78-1591,78-1591
• Citation: 624 F.2d 127
• Parties: 23 Fair Empl.Prac.Cas. 151, 23 Empl. Prac. Dec. P 31,036 CHICANO POLICE OFFICER'S ASSOCIATION, et al., and Refugio Beserra et al., Plaintiffs-Appellants, v. Robert V. STOVER, Chief of Police, Albuquerque Police Department et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 127

624 F.2d 127

23 Fair Empl.Prac.Cas. 151,

23 Empl. Prac. Dec. P 31,036

CHICANO POLICE OFFICER'S ASSOCIATION, et al., and Refugio Beserra et al., Plaintiffs-Appellants, v. Robert V. STOVER, Chief of Police, Albuquerque Police Department et al., Defendants-Appellees.

No. 78-1591.

United States Court of Appeals Tenth Circuit.

Argued March 13, 1980.

Decided June 17, 1980.

Ray M. Vargas, Albuquerque, N. M., for plaintiffs-appellants.

George R. Bryan, III, Albuquerque, N. M. (William L. Kraemer, Albuquerque, N. M., with him on brief), for defendants-appellees.

Before SETH, Chief Judge, and HOLLOWAY and LOGAN, Circuit Judges.

LOGAN, Circuit Judge.

Appellants were plaintiffs in a consolidated civil rights action that was settled before trial. After the settlement plaintiffs moved for an award of attorney's fees pursuant to 42 U.S.C. §§ 1988 and 2000e-5(k). The court denied the motion, stating that the stipulated judgment did not specify a prevailing party and did not provide for payment of attorney's fees. This appeal followed.

There are three issues we must resolve on appeal: (1) what is the standard for reviewing the trial court's action under these two statutes; (2) whether plaintiffs are a "prevailing party" within the meaning of the statutes; and (3) whether the settlement agreement is binding on the issue of attorney's fees and so precludes any award under the statutes.

This litigation has a long history. The first suit, Chicano Police Officer's Ass'n v. Stover, was filed in July 1973. It alleged claims under 42 U.S.C. §§ 1981, 1983, 1985, and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., for employment discrimination against Spanish-surnamed Americans by the Albuquerque Police Department in hiring and promotion of police officers. An injunction and damages were requested. Following presentation of plaintiffs' evidence, the district court dismissed this suit, holding that plaintiffs did not have standing to challenge hiring policies and had failed to establish a prima facie case of discrimination in promotion. This Court, in Chicano Police Officer's Ass'n v. Stover, 526 F.2d 431 (10th Cir. 1975), vacated the judgment and remanded, ruling that plaintiffs had standing to contest hiring policy and that the trial court imposed too great a burden on plaintiffs regarding the promotion issue. The Supreme Court granted certiorari and remanded the case for reconsideration in light of Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). Stover v. Chicano Police Officer's Ass'n, 426 U.S. 944, 96 S.Ct. 3161, 49 L.Ed.2d 1181 (1976). Subsequently, this Court remanded again to the district court for findings on discriminatory intent. Chicano Police Officer's Ass'n v. Stover, 552 F.2d 918 (10th Cir. 1977).

The second suit, Beserra v. Stover, was filed in March 1974 as a class action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The class was never certified. The two cases were consolidated for trial in March 1978.

On May 15, 1978, the parties agreed to a stipulated judgment requiring the City (1) to pay $8,000 to Beserra and $8,000 to the Chicano Police Officer's Association; (2) to meet an affirmative action goal of 34% Spanish-surnamed Americans in the police department by July 1, 1981; (3) to complete an affirmative action internal audit of the police department; (4) to correctly revalidate the present testing procedures for promotion; (5) to assign a Chicano police officer to the police academy; and (6) to expand department language and cultural awareness training. The City made no admission of liability, and there was no designation of plaintiffs as prevailing parties. Plaintiffs agreed to dismiss the suits with prejudice, subject to any cause of action for breach of the stipulated agreement. Attorneys' fees were not mentioned.

I

The provision for attorneys' fees in actions under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k) states,

In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney's fee as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person.

A similar provision added to 42 U.S.C. § 1988 in 1976 ¹ applies to cases under other Civil Rights Act sections, including 42 U.S.C. §§ 1981, 1983, 1985, and 2000d et seq., and states, "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." ²

Although in plain language these statutes declare that the award of attorneys' fees is within the court's discretion, most courts considering these and similar civil rights statutes have held the scope of discretion is quite narrow. In Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968), the Supreme Court refused to hold that under 42 U.S.C. § 2000a-3(b) ³ attorneys' fees should be awarded only when defendant acts in bad faith. Emphasizing the important policy behind the Civil Rights Act of encouraging plaintiffs to act as private attorneys general, the Court declared that "one who succeeds in obtaining an injunction under that Title (II) should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." Id. at 402, 88 S.Ct. at 966.

Later, in Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975), the Supreme Court stated in dictum, "There is, of course, an equally strong public interest in having injunctive actions brought under Title VII, to eradicate discriminatory employment practices. But this interest can be vindicated by applying the Piggie Park standard to the attorneys' fees provision of Title VII, 42 U.S.C. § 2000e-5(k) . . . ." Id. at 415, 95 S.Ct. at 2370 (emphasis in original). Cf. Northcross v. Board of Educ., 412 U.S. 427, 93 S.Ct. 2201, 37 L.Ed.2d 48 (1973) (applying same standard under § 718 of Emergency School Aid Act of 1972).

Many circuits have recognized that the Piggie Park standard applies to attorneys' fees awards under Title VII. See, e. g., Parker v. Califano, 561 F.2d 320, 330-31 (D.C. Cir. 1977); Carrion v. Yeshiva Univ., 535 F.2d 722, 727 (2d Cir. 1976) (dictum); Lea v. Cone Mills Corp., 438 F.2d 86, 88 (4th Cir. 1971) (reversing district court's denial of fees). See also Pearson v. Western Elec. Co., 542 F.2d 1150, 1153 (10th Cir. 1976) (prevailing party entitled to recover attorneys' fees).

As shown in the legislative history of section 1988, Congress not only incorporated the Piggie Park standard into this section, but indicated approval of this standard for all Civil Rights Act fee provisions.

It is intended that the standards for awarding fees be generally the same as under the fee provisions of the 1964 Civil Rights Act. A party seeking to enforce the rights protected by the statutes covered by S. 2278, if successful, "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (88 S.Ct. 964, 966, 19 L.Ed.2d 1263) (1968).

S.Rep. No. 1011, 94th Cong., 2d Sess. 4, reprinted in (1976) U.S.Code Cong. & Admin.News pp. 5908, 5912. Other circuits have recognized Congress's narrow grant of discretion under section 1988. See, e. g., Dawson v. Pastrick, 600 F.2d 70, 78 (7th Cir. 1979) (settlement case, reversing denial of fees by district court); Bonnes v. Long, 599 F.2d 1316, 1318 (4th Cir. 1979) (same); Wharton v. Knefel, 562 F.2d 550, 557 (8th Cir. 1977). We hold the Piggie Park standard is to be applied in awarding fees under sections 1988 and 2000e-5(k). ⁴

The district court apparently refused to award attorneys' fees here (1) because it believed plaintiffs were not prevailing parties since they were not designated as such in the agreement, and (2) because the settlement agreement was silent on the subject of fees, from which it inferred an intent to preclude an award. For the reasons stated below we hold these two factors do not necessarily preclude the application of the statutes. On remand, if the settlement meets the standards discussed hereafter the court should make an award of attorneys' fees unless it finds special circumstances that would make such an award unjust.

II

Defendant argues that plaintiffs cannot be "prevailing" parties because they never received a court decision on the merits of the discrimination claim, the settlement agreement does not designate a prevailing party or contain any admission of fault by defendant, and the $16,000 plaintiff received was de minimus in view of what the back pay award might have been. Further, the City says the sum paid was about what a legal defense would have cost it and was paid only to end a lengthy and disruptive lawsuit, not as compensation on the merits. We believe defendant's view of what constitutes a prevailing party is too narrow.

A court determination of the merits is not required for plaintiff to be found the prevailing party. ⁵ The legislative history of section 1988 states, "for purposes of the award of counsel fees, parties may be considered to have prevailed when they vindicate rights through a consent judgment or without formally obtaining relief." S.Rep. No. 1011, 94th Cong., 2d Sess. 5, reprinted in (1976) U.S.Code Cong. & Admin.News, pp. 5908, 5912.

In several cases circuit courts have reversed denials by a trial judge of attorneys' fees in civil rights actions after settlement and when apparently nothing was said in the stipulated judgment concerning entitlement. See Dawson v. Pastrick, 600 F.2d 70 (7th Cir. 1979); Bonnes v. Long, 599 F.2d 1316 (4th Cir. 1979); Brown v. Culpepper, 559 F.2d 274 (5th Cir. 1977). We think the standard to be applied in determining whether a plaintiff is a "prevailing party" in such cases is...