Reynolds v. Roberts

Decision Date09 February 1994
Docket NumberCiv. A. No. 85-T-665-N.
Citation846 F. Supp. 948
PartiesJohnny REYNOLDS, et al., Plaintiffs, v. Gary Mack ROBERTS, et al., Defendants.
CourtU.S. District Court — Middle District of Alabama

Julian McPhillips, McPhillips, DeBardelaben & Hawthorne, Montgomery, AL, for plaintiffs.

James Evans, Atty. Gen., Montgomery, AL, for defendants Ballard and State Personnel Dept.

William F. Gardner, Cabaniss, Johnston, Gardner, Dumas and O'Neal, Birmingham, AL, for defendants AL Dept. of Transp. and Governor Folsom and Gary Mack Roberts.

Florence Belser, pro se plaintiff.

Richard Ebbinghouse, Jon C. Goldfarb, Robert L. Wiggins, Gregory O. Wiggins, Gordon, Silberman, Wiggins and Childs, Birmingham, AL, for plaintiffs-intervenors Parker and Reed.

Claudia Pearson, Birmingham, AL, for plaintiff-intervenor Johnson.

Robert M. Weinberg, Office of Atty. Gen., Montgomery, AL, for defendant AL Dept. of Transp.

Jerry H. Pogue, pro se plaintiff.

Raymond P. Fitzpatrick, Jr., Johnston, Barton, Procter, Swedlaw and Naff, Birmingham, AL, for plaintiff-intervenors non-class employees.



In this lawsuit, plaintiffs, a class of African-American merit system employees and unsuccessful applicants, charge defendants, the Alabama Department of Transportation (formerly known as the Alabama Highway Department), the Alabama State Personnel Department, and several state officials, with race discrimination. Plaintiffs rest their lawsuit on Title VII of the Civil Rights Act of 1964, as amended, codified at 42 U.S.C.A. §§ 1981a, 2000e through 2000e-17; the fourteenth amendment to the United States Constitution, as enforced by 42 U.S.C.A. § 1983; and 42 U.S.C.A. § 1981. In 1988, the parties reached a full settlement of this case but the court refused to approve the proposed consent decree in the face of numerous objections from the members of the plaintiff class. Reynolds v. King, 790 F.Supp. 1101 (M.D.Ala.1990). In 1993, after a partial trial which lasted several months, the parties reached a second, albeit only partial, settlement, subsequently embodied in a new proposed consent decree, the approval of which is currently under the court's consideration. The new proposed decree provides for only systemic class relief; trial will proceed on the claims of individual class members that are not later resolved.

This case is now before the court on four motions relating to the proposed consent decree: a motion for appointment of counsel filed by the Transportation Department and three motions—to intervene, for confirmation of counsel, and for order requiring payment of fees and expenses—filed by several "non-class-member employees," that is, persons who are employees of the Transportation Department but who are not members of the plaintiff class of African-Americans.1 For the reasons set forth below, the motions for appointment and confirmation of counsel and payment of fees and expenses will be denied, and the motion to intervene will be granted.

A. Appointment and Confirmation

Upon receiving notice of the proposed consent decree in December 1993, certain non-class-member employees of the Transportation Department sought legal counsel to represent their objections to the decree; they contacted and retained attorneys David P. Whiteside, Jr., and Raymond P. Fitzpatrick, Jr. Meetings were then held on January 6 and 10, 1994, with large numbers of non-class-member employees present; it was agreed that Whiteside and Fitzpatrick should represent their interests and a steering committee was elected. The Transportation Department then agreed voluntarily to pay counsel fees and expenses for those persons who are not members of the plaintiff class, and later moved the court for an order appointing Whiteside and Fitzpatrick as counsel for all non-class members. Whiteside and Fitzpatrick supported this motion, with the exception that they would represent only those persons who are employees of the Department and who are not members of the plaintiff class; in other words, they would not represent non-class members who are not employees of the Department. Whiteside and Fitzpatrick also filed their own motion for "confirmation" of group representation. The plaintiffs oppose the appointment and confirmation of counsel.

The court is not entirely certain on what basis the Transportation Department and the non-class-member employees seek to have counsel appointed or confirmed. There appears to be no invocation of the in forma pauperis procedures available to seek appointment of counsel. See, e.g., 28 U.S.C.A. § 1915(d) (general allowance for appointment of counsel by court for indigent litigants). The Department and the non-class-member employees argue essentially that appointment is necessary because "the right to notice and the opportunity to be heard provided by Section 108 of the 1991 Civil Rights Act could be jeopardized if non-class members are not extended the right to be heard through counsel."2 The court finds this argument unpersuasive.

Section 108 of the Civil Rights Act of 1991, 42 U.S.C.A. § 2000e-2(n), provides that a consent decree resolving a claim of employment discrimination will be binding against all persons, including non-class members adversely affected, who had notice and a reasonable opportunity to present objections.3 This section in no way indicates that the opportunity to present objections is reasonable only when the objectors are represented by court-appointed counsel. The conclusory assertion by the Transportation Department and the non-class-member employees, without citation of any supporting legal authority, is of no help to the court in determining why appointment or confirmation of counsel is necessary to comply with section 108 as contemplated by the drafters of the Civil Rights Act of 1991.

Title VII does contain a provision for appointment of counsel "Upon application by the complainant and in such circumstances as the court may deem just...." 42 U.S.C.A. § 2000e-5(f)(1). Although the Transportation Department and the non-class-member employees have not invoked this provision, the court has considered it and declines to exercise its discretion to appoint counsel under these circumstances. Assuming that the non-class-member employees could be characterized as "complainants," the Eleventh Circuit Court of Appeals has held that there is "no automatic right to appointed counsel" under § 2000e-5(f)(1). Hunter v. Department of the Air Force Agency, 846 F.2d 1314, 1317 (11th Cir.1988) (per curiam). Rather, this decision is within the discretion of the district court. Id. In determining whether to appoint counsel under this provision, a trial court is to consider "the merits of the plaintiffs claim, the plaintiff's efforts to obtain counsel, and the plaintiff's financial inability to retain counsel." Luna v. Intern. Ass'n of Machinists and Aerospace Workers Local # 36, 614 F.2d 529, 531 (5th Cir.1980).4 Assuming that the non-class-member employees' action has merit, the court's consideration of the second and third factors leads to the conclusion that counsel should not be appointed. The non-class-member employees have sought and successfully retained counsel and the Transportation Department has agreed to pay counsel's fees. Counsel for the non-class-member employees have since filed: a notice of appearance, the motions currently before the court, and a statement of objections on behalf of their clients; they have also represented the interests of the non-class-member employees at a fairness hearing held on January 19, 1994, and they continue to represent those interests in post-hearing negotiations. The court finds no reason to conclude that its order, sanction, appointment, or confirmation of counsel's representation of their clients is warranted; the motions for appointment and confirmation will therefore be denied.5

B. Fees and Expenses

The non-class-member employees also move the court to direct the Transportation Department to pay their reasonable fees and expenses. In support of their motion, they state, first, that the Department has consented to the payment of their fees and expenses and, second, that the law justifies such an order because the non-class-member employees should be "treated as civil rights plaintiffs." The first argument is easily rejected. The fact that the Transportation Department has consented to pay for counsel's fees and expenses is not a legal basis for the court to order such payment.

The second argument raised by counsel for the non-class employees convinces the court that their motion is, at best, premature. Parties to a Title VII action—the status sought by non-class-member employees in their motion to intervene—may be allowed attorneys' fees upon a showing that they have "prevailed" as complainants. 42 U.S.C.A. § 2000e-5(k).6 In Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), the Supreme Court explained that "plaintiffs may be considered `prevailing parties' for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing the suit." Id. at 433, 103 S.Ct. at 1939 (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978)). Because counsel has only begun to represent the non-class-member employees, it is too soon to determine whether counsel will prevail on any significant issue.

The non-class-member employees rely on Afro-American Patrolmen's League v. Atlanta, 817 F.2d 719 (11th Cir.1987), to support their argument that they are entitled to an order of payment. This case, however, supports rather than contradicts the court's conclusion that fees and expenses are not due to be awarded unless the non-class-member employees prevail. In that case, where non-minority plaintiff-intervenors alleged reverse discrimination, the court held that, "By prevailing on the contempt motion and achieving a consent agreement...

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