Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civ. No. 84-2666)
Before: WEIS, HIGGINBOTHAM and BECKER, Circuit Judges.
A. LEON HIGGINBOTHAM, JR., Circuit Judge.
Arthur S. Klein, attorney for plaintiff, Celestine Ford, appeals an order of the United States District Court for the Eastern District of Pennsylvania entered May 17, 1985, assessing attorneys' fees and costs against him. This Court has jurisdiction pursuant to 28 U.S.C. § 1291. We are asked to decide whether the district court abused its discretion in awarding attorneys' fees. We hold that, for a portion of appellees' legal services, it was not an abuse of discretion for the district court to grant attorneys' fees. We also hold that the district court erred in the award of attorneys' fees for legal services performed prior to the filing of appellees' motion for summary judgment. The judgment of the district court will be reversed in part.
On May 31, 1984, appellant, attorney Arthur S. Klein, filed a Title VII Civil Rights action pursuant to 42 U.S.C. § 2000e-5(f)(1) on behalf of plaintiff, Celestine Ford, against Temple Hospital ("Temple") and the National Union of Hospital & Health Care Employees, Local 1199C (the "Union") alleging that appellees discriminated against plaintiff on the basis of her race.
On February 14, 1984, the Equal Employment Opportunity Commission ("EEOC") issued to Ford and her attorney, Klein, a notice of right to sue Temple and the Union. App. at 51, 53. Ford received her copy of the notice of right to sue on February 16, 1984 and a copy of said notice was received by someone in Klein's office no later than February 19, 1984.*fn1 App. at 52-53. The Title VII complaint was filed on May 31, 1984. The district court found that in August, 1984,
plaintiff's counsel had received a copy of a letter from defendant Union's counsel to Judge Weiner*fn2 which stated that this action might be barred because it had been filed after the ninety day period specified by 42 U.S.C. § 2000e-5(f)(1)*fn3 and that attorneys' fees and costs might be sought if the action was not terminated. Counsel for defendant Temple sent plaintiff's counsel a similar letter on August 23, 1984.
See Memorandum and Order dated May 16, 1985, App. at 11. The positions of Temple and the Union were reiterated to Klein at a pre-trial conference on October 3, 1984 and the district court judge set a due date for Temple's and the Union's motions for summary judgment in the event that the matter was not resolved amicably.
The matter was not resolved and on October 17, 1984 and on October 19, 1984, Temple and the Union, respectively, filed motions for summary judgment asserting their position that 42 U.S.C. § 2000e-5(f)(1) barred plaintiff's action. Temple and the Union asserted that because the right to sue notices were received at Klein's office no later than February 19, 1984 and the complaint was not filed until May 31, 1984, 104 days after February 19, 1984, plaintiff failed to bring the action within the ninety days provided by 42 U.S.C. § 2000e-5(f)(1). Thus, plaintiff's action is time barred.
Klein, on behalf of plaintiff, did not dispute Temple's contention that the complaint had been filed after the ninety day period, but argued that the Supreme Court's holding in Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 71 L. Ed. 2d 234, 102 S. Ct. 1127 (1982), that the filing requirements of Title VII are subject to equitable defenses such as waiver, estoppel, or tolling, was applicable to this action. Klein posited the following three reasons why the late filing of the complaint should be excused: (1) although the notice of right to sue letters from the Equal Employment Opportunity Commission were received at his office no later than February 19, 1984, they were not actually received by him until March 1, 1984; (2) Klein had incorrectly marked June 1, 1984 as the day when the ninety days would expire; and (3) Temple and the Union failed to file their answers to the complaint within the twenty days provided by Fed. R. Civ. P. 12(a) and filed their motions for summary judgment eighty days after the complaint was served. The district court rejected Klein's arguments concerning the application of equitable principles to excuse the late filing and granted the motions for summary judgment. No appeal was taken from this action.
Thereafter, Temple and the Union filed motions for attorneys' fees. The Union sought attorneys' fees of $1,085.00 and costs of $41.00 to be assessed jointly and severally against the plaintiff and her attorney. Temple sought attorneys' fees of $881.25 against Klein. Temple and the Union sought attorneys' fees pursuant to (1) a federal court's inherent power to assess attorneys' fees when the losing party or the losing party's attorney has acted in bad faith; (2) 28 U.S.C. § 1927; or (3) section 706(k) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k). In response to the motions for attorneys' fees, Klein contended that he and Ford believed that Temple and the Union had waived their defense as to the untimely filing of the complaint. Klein further contended that the fact that he and Ford did not prevail on the waiver theory should not be the test for determining bad faith.
Nonetheless the district court judge assessed attorneys' fees against Klein*fn4 pursuant to either the bad faith exception to the general rule regarding attorneys' fees or 28 U.S.C. § 1927. The district court held that Klein acted in bad faith by " bringing and maintaining this baseless and frivolous litigation, attempting to justify it with atrocious legal reasoning and as a result wasting this court's ...