ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA Civil No. 71-1172
Before: VAN DUSEN, ADAMS and GARTH, Circuit Judges.
This appeal presents two principal questions. First, is the award of an attorney's fee authorized against the Equal Employment Opportunity Commission (EEOC) in a proceeding under Title VII of the Civil Rights Act of 1964?*fn1 Second, assuming that such award is permitted, what is the standard for imposing or denying the award?
On January 30, 1970, Mr. Alvin Bowens, an employee of United States Steel Corp. at the Fairless Works in Morrisville, Pennsylvania, filed a charge with the EEOC alleging racial discrimination in employment. Exercising the investigative procedures available to it under the Civil Rights Act,*fn2 the district office of the EEOC issued, on November 26, 1971, a demand for access to evidence under the control of U.S. Steel. The ten items listed encompassed a broad range of information relating to the Fairless Works plant.
Pursuant to the procedure prescribed by the Act, U.S. Steel moved in the district court to set aside the EEOC demand.*fn3 Upon cross-motions for summary judgment, the district court refused to order access regarding eight of the items sought by the EEOC and ordered access to only two items, one after modification. The order of the district court was affirmed on appeal.*fn4
Thereafter, on November 30, 1973, U.S. Steel renewed a petition it had filed earlier in the district court for costs and an attorney's fee. The district court, on September 16, 1974, awarded costs to U.S. Steel but denied the attorney's fee.*fn5 This appeal by U.S. Steel followed.
Under the "American rule," an attorney's fee may not ordinarily be recovered by a prevailing party as a part of its costs.*fn6 Limited deviations from the "American rule" have been sanctioned, both by statutory authorization of fee-shifting and by the judicial exercise of traditional equitable powers. However, where the issue is the imposition of an attorney's fee against the government, a congressional enactment prohibits any such fee as a part of costs, unless specifically authorized by statute.*fn7
A statutory provision relating to the discretionary award of counsel fees exists in Section 706(k) of Title VII, Civil Rights Act of 1964. It provides:
In any action or proceeding under this Title 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.*fn8
U.S. Steel contends that Section 706(k) authorizes, as part of the costs, the grant of an attorney's fee against the EEOC in a proper case. Furthermore, U.S. Steel claims that the district court's denial of an attorney's fee in this case should be reversed because the district court based its decision on an incorrect standard for the award of an attorney's fee.
The EEOC erects a twofold defense against the imposition of an attorney's fee. First, the EEOC takes the position that a proper statutory analysis, based on the legislative history, would conclude that Congress did not intend to permit an award of an attorney's fee against the EEOC in favor of a private defendant. Further, the EEOC contends, even if the power to make such an award exists, the district court nevertheless did not abuse its discretion here in declining to compel an attorney fee payment.
Only one circuit has squarely addressed the question of statutory authorization for the award of an attorney's fee against the EEOC when it brings an unsuccessful action. The Ninth Circuit considered the matter in Van Hoomissen v. Xerox Corp.*fn9 There, the court began its analysis of Section 706(k) by remarking, "Unless the meaning of 'costs' changes during the eleven words which separate its two usages, it is clear that attorney's fees can be assessed against the Commission."*fn10 Since the EEOC in Van Hoomissen maintained that two different meanings were, in fact, intended by Congress, the court examined the legislative history of Section 706(k) with some care. The court in Van Hoomissen acknowledged that the legislative history of the Act appeared to lend some support to the EEOC interpretation. However, the Court noted that the Congress did not evince a specific intent to exclude an attorney's fee from costs awardable against the government. In any event, the Ninth Circuit ...