INDEPENDENT FEDERATION OF FLIGHT ATTENDANTS, PETITIONER V. ANNE B. ZIPES, ET AL. No. 88-608 In The Supreme Court Of The United States October Term, 1988 On A Writ Of Certiorari To The United States Court Of Appeals For The Seventh Circuit Brief For The United States And The Equal Employment Opportunity Commission As Amici Curiae Supporting Petitioner TABLE OF CONTENTS Interest of the United States and the Equal Employment Opportunity Commission Statement Summary of argument Argument: Intervenors should be treated like plaintiffs rather than defendants for purposes of determining attorneys' fee liability under Title VII Conclusion QUESTION PRESENTED Whether a union that intervened unsuccessfully in an employment discrimination action to challenge relief that it alleged would impermissibly interfere with its collective bargaining agreement should be assessed attorneys' fees pursuant to Section 706(k) of the Civil Rights Act of 1964, 42 U.S.C. 2000e-5(k), under the same standard applied to a losing defendant, even though the union has not been found or alleged to have engaged in unlawful discrimination. INTEREST OF THE UNITED STATES AND THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION This case presents the important question whether parties who have not violated federal civil rights law and have not litigated frivolously may nevertheless be required to pay attorneys' fees to plaintiffs who prevail in civil rights litigation. The United States and the Equal Employment Opportunity Commission have a strong interest in this issue as principal enforcers of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., and other civil rights laws for which attorneys' fees may be awarded. In addition, 42 U.S.C. 2000e-5(k) makes the federal government liable for attorneys' fees to the same extent as a private party. Thus, the United States also has a direct interest in this issue as a potentially liable party. See, e.g., United States v. Richardson, No. 88-5155 (6th Cir.) (U.S. held liable for fees as plaintiff-intervenor). STATEMENT 1. Respondents, represented by the predecessor union to petitioner Independent Federation of Flight Attendants (IFFA), filed this class action against Trans World Airlines, Inc. (TWA) in 1970 alleging that its practice of terminating all flight attendants who became mothers, but not those who became fathers, violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. Pet. App. 2a. Shortly after the suit was filed, TWA dropped its prohibition on employment of mothers and entered into a settlement with the predecessor union. That settlement, however, did not award either backpay or seniority to class members. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 388 (1982). Disgruntled members of the class appealed the district court's approval of the settlement and won reversal in the court of appeals based on the union's conflict in representing both the plaintiff class and incumbent flight attendants who were not affected by the "no-motherhood" rule. Air Line Stewards & Stewardesses Ass'n, Inc. v. American Airlines, 490 F.2d 636 (7th Cir. 1973). The action was then reinstated with individual class members substituted for the predecessor union as representatives. The district court granted summary judgment for respondents, ruling that TWA had discriminated against them on the basis of gender in violation of Title VII. Pet. App. 3a. The court of appeals affirmed the finding of discrimination, but held that the claims of 92% of the class members were barred by their failure to file timely charges with the EEOC. See In re Consolidated Pretrial Proceedings in the Airline Cases, 582 F.2d 1142 (7th Cir. 1978). /1/ The parties then reached a second settlement agreement, establishing a $3 million fund to benefit all class members and awarding each class member full retroactive competitive seniority. /2/ Pet. App. 3a. 2. Petitioner, representing all flight attendants who were not adversely affected by the no-motherhood rule, thereupon intervened as a defendant to object to the settlement on the grounds that (1) the failure of some plaintiffs to file timely charges with EEOC left the district court without jurisdiction to approve equitable relief for them, and (2) reinstatement of the plaintiffs with full retroactive competitive seniority would violate the collective bargaining agreement between IFFA and TWA. Pet. App. 3a-4a. After a hearing, the district court rejected these objections and approved the settlement. Id. at 3a-4a. The court of appeals affirmed, holding that the district court had jurisdiction to approve the settlement and that the grant of retroactive competitive seniority was a proper Title VII remedy. Air Lines Stewards & Stewardesses Ass'n v. Trans World Airways, Inc., 630 F.2d 1164 (7th Cir. 1980). IFFA then petitioned successfully for certiorari. This Court consolidated IFFA's petition with the respondents' petition for review of the Seventh Circuit's earlier decision holding that failure to file claims with the EEOC presented a jurisdictional barrier. The Court held that the failure to file with the EEOC was not a jurisdictional defect and that reinstatement of respondents with full competitive seniority was appropriate. Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982). 3. Respondents then sought an award of attorneys' fees against petitioners under Section 706(k) of Title VII, 42 U.S.C. 2000e-5(k) (1982). Although respondents' attorney had already been awarded some $1.25 million in fees from a settlement fund established by defendants (Pet. App. 14a), the district court awarded them an additional $180,915.84 against petitioner under the statute. Id. at 37a, 38a-40a. Petitioner again appealed, and the court of appeals again affirmed. The court rejected petitioner's contention that it should not have to pay fees because it was not responsible for the discriminatory conduct that produced liability. Pet. App. 6a-13a. The court noted that the language of the statute provides that prevailing parties should recover attorney fees and does not exclude any class of litigants from liability. Id. at 11a. The court also rejected petitioner's contention that it had acted in a manner analogous to a plaintiff when it intervened to protect its members' rights, and thus should only be assessed fees under the same circumstances as would a plaintiff. The court found that any rule that treated intervenors as "functional plaintiffs" would induce defendants and intervenors to manufacture appropriate defenses in order to claim immunity from fee liability. It concluded that the exception would therefore undermine Congress's intent to ensure that meritorious civil rights complaints are fully litigated, and suggested that any problems with the fee provision be addressed to Congress. Id. at 12a-13a. Finally, the court rejected the contention that any "special circumstances" -- such as petitioner union's duty to represent its members' interests or the fact that respondents had already recovered a large sum from the defendant -- excused petitioner from paying the fee award. Pet. App. 13a-16a. The dissent (Pet. App. 18a-21a) stressed that the union was not responsible for TWA's discrimination and that it sought only to assert the collective bargaining rights of incumbent employees. It noted that "it certainly would have been unusual for (petitioner) to simply ignore a settlement that substantially altered its contract with TWA and the job security of its members," and that the statutory purpose of "encourag(ing) plaintiffs to bring suit against defendants who violate federal law" is not served by an award against "intervenors like (petitioner) who did not violate Title VII." Id. at 20a-21a. It also concluded that "denying fee awards against such intervenors will not significantly diminish plaintiffs' ability to attract counsel," pointing out that in this case "(respondents') counsel has already received more than $1,250,000 from the $3,000,000 settlement." Id. at 21a. The dissent predicted that the court's interpretation of the statute would disserve the goal of fair settlement of civil rights claims by deterring employees whose rights were affected by the settlement from asserting their interests. Id. at 21a. SUMMARY OF ARGUMENT A. This case presents the question whether a losing intervenor in Title VII employment discrimination litigation, who is not alleged to have violated the civil rights of any party, should be treated as a losing defendant for purposes of the fee recovery by a plaintiff. Section 706(k) of the Civil Rights Act of 1964, 42 U.S.C. 2000e-5(k), provides that a district court may, in its discretion, award attorneys' fees to a "prevailing party" in Title VII litigation. This Court has invoked three policy considerations in applying this undifferentiated statutory language in different contexts. First, the Court has noted that the statute is designed "to encourage individuals injured by racial discrimination to seek judicial relief." Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 401-402 (1968). This consideration is qualified by the fact that fees may also be awarded a defendant under Section 706(k). Thus, the statutory purpose is most accurately described as encouraging plaintiffs to bring meritorious claims. Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 420 (1978). The second consideration follows from the fact that when a court awards fees to a plaintiff against a defendant, "it is awarding them against a violator of federal law." Christiansburg Garment, 434 U.S. at 418. An award of fees therefore serves the equitable purpose of redressing a wrong, and of deterring similar wrongs in the future. Finally, the fact that the fee provision permits awards to either "prevailing party" indicates that Congress "entrusted the ultimate effectuation of * * * (its civil rights) policy to the adversary judicial process." Christiansburg Garment, 434 U.S. at 419. Fees should therefore be awarded in such a way as to encourage the consideration of all competing rights and interests in any dispute. Balancing these considerations, this Court has determined that plaintiffs and defendants warrant different treatment under the fee provision. Losing plaintiffs are required to pay fees only if their actions are "frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith" (Christiansburg Garment, 434 U.S. at 421); losing defendants, by contrast, are ordinarily required to pay fees to prevailing plaintiffs, "unless special circumstances would render such an award unjust" (Piggie Park, 390 U.S. at 401-402). B. The same considerations indicate that losing intervenors who have not violated any of the plaintiff's civil rights should also be subject to the standard of Christiansburg Garment. In the case of an intervenor seeking to protect its own civil rights, all three considerations point to this result. The intervenor, like the plaintiff, is seeking to vindicate its civil rights; the intervenor cannot be described as a violator of federal civil rights laws; and the intervenor should be encouraged to advance its claims in order to ensure a complete consideration of all competing rights and interests by the court. The same result should follow if, as was the case here, the intervenor seeks to vindicate non-civil rights claims like those grounded in a collective bargaining agreement. Such an intervenor, like the intervenor asserting a civil rights claim, cannot be said to be a violator of federal law, and hsould be encouraged to come forward in order to provide a complete adjudication of all claims. Moreover, an attempt to distinguish between "civil rights" claims and "non-civil rights" claims would lack any principled basis, would encourage evasive pleading, and would generate unproductive litigation. Although the question is somewhat closer, we also feel that the same rule should generally apply to an intervenor who asserts an argument, like the claim made here that the district court was without jurisdiction to approve the settlement, that would defeat the plaintiff's right to any recovery. Like the intervenor who advances arguments that go only to the scope of relief, the intervenor who challenges the plaintiff's case on the merits is not a civil rights violator, and is trying to protect an interest that should be considered by the court. Moreover, it would be hard to justify a rule that would apply a different standard for awarding fees to different types of legal arguments, where those arguments are advanced by the same person for the same purpose and are equally meritorious. C. In short, the considerations that justify the presumptive assessment of fees against defendants under Section 706(k) do not similarly justify the presumptive award of fees against intervenors. As a non-violator of civil rights laws, a losing intervenor should be treated in the same manner as a losing plaintiff: it should be assessed fees only upon a finding that its action was frivolous, unreasonable, or without foundation. ARGUMENT INTERVENORS SHOULD BE TREATED LIKE PLAINTIFFS RATHER THAN DEFENDANTS FOR PURPOSES OF DETERMINING ATTORNEYS' FEE LIABILITY UNDER TITLE VII This case requires the Court to determine what standard the courts should apply in civil rights litigation when awarding attorneys' fees against an unsuccessful intervenor who has not violated the rights of any other party. The court of appeals concluded that fees should be assessed against an innocent intervenor under the same standard applied to a losing defendant. Petitioner contends that fees should be aassessed against it under the standard applied to losing plaintiff. Unfortunately, the language of Section 706(k) of Title VII of the Civil Rights Act of 1964 (the Act), 42 U.S.C. 2000e-5(k), supplies none of the distinctions that fuel this controversy. That section simply 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. Nor does the legislative history of that provision directly address the problem. In the absence of any authoritative guidance from Congress, the discretion conferred upon courts under Section 706(k) must be exercised in light of the objectives of the Act and traditional considerations of equity. See Christiansburg Garment, 434 U.S. at 418-419; Albemarle Paper Co. v. Moody, 422 U.S. 405, 415 (1975). This Court has previously determined that unsuccessful defendants and unsuccessful plaintiffs should be subject to different standards in assessing requests for an award of attorneys' fees. Losing defendants are ordinarily required to pay attorneys' fees "unless special circumstances would render such an award unjust" (Piggie Park, 390 U.S. at 401-402). /3/ Losing plaintiffs, by contrast, are required to pay attorneys' fees only if they bring actions that are "frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith" (Christiansburg Garment, 434 U.S. at 421). This Court's decisions in Piggie Park and Christiansburg Garment reflect three policy considerations grounded in the purposes of the Civil Rights Act and general notions of equity: (1) encouraging the vindication of meritorious civil rights claims; (2) deterring violations of the civil rights laws; and (3) ensuring that all competing interests and perspectives are fully considered in adversary adjudication. These considerations suggest that an unsuccessful intervenor who has violated the rights of no other party should be treated like a losing plaintiff. A. 1. As the Court stated in Piggie Park, 390 U.S. at 402, the primary purpose of the fee-shifting provisions of the Civil Rights Act is "to encourage individuals injured by racial discrimination to seek judicial relief." Congress provided for fee awards to successful plaintiffs in order to "make it easier for a plaintiff of limited means to bring a meritorious suit" (110 Cong. Rec. 12,724 (1964) (remarks of co-sponsor Sen. Humphrey)). The provision for fee awards to private plaintiffs was thought necessary because Title VII, as originally passed in 1964, did not allow the EEOC to bring suit to enforce its provisions. See Civil Rights Act of 1964, Pub. L. No. 88-352, Tit. VII, Section 706(e), 78 Stat. 260. /4/ Congress determined instead to rely on private plaintiffs to act as "'private attorney(s) general,' vindicating a policy that Congress considered of the highest priority." Piggie Park, 390 U.S. at 401 and n.2, 402; Albemarle Paper, 422 U.S. at 415. Congress's desire to encourage the private vindication of civil rights claims was, however, qualified. Section 706(k) is not limited to prevailing plaintiffs, but applies instead to prevailing parties. By allowing awards to parties besides plaintiffs, the fee-shifting provision was designed also to "deter the bringing of baseless actions" (110 Cong. Rec. 13,668 (1964) (remarks of Sen. Lausche (referring to similar Title II provision)). See also id. at 14,213-14,214 (remarks of Sen. Miller (Title II)); id. at 14,214 (remarks of Sen. Pastore (Title II)). Thus, a more accurate description of the congressional purpose is to encourage the vindication of meritorious civil rights claims. Given the role of meritorious civil rights plaintiffs as the "chosen instrument" of Congress (Christiansburg Garment, 434 U.S. at 418), this Court in Piggie Park determined that prevailing plaintiffs should ordinarily receive awards of attorneys' fees "unless special circumstances would render such an award unjust." 390 U.S. at 402. Congress declined to disturb this judgment in 1972, when it amended Title VII without changing Section 706(k). /5/ And in 1976, Congress explicitly endorsed the Court's reading of the 1964 Act, when it amended Section 1988 to include a fee provision that tracks the wording of Section 706(k) and directed that the interpretation of the new provision should follow that given the Civil Rights Act's provision. /6/ See S. Rep. No. 1011, 94th Cong., 2d Sess. 2, 3, 4 (1976); H.R. Rep. No. 1558, 94th Cong., 2d Sess. 1, 6 (1976); see also H.R. Rep. No. 196, 94th Cong., 1st Sess. 34 (1975) (discussing fee provision amendment to Voting Rights Act). 2. The presumption adopted by Piggie Park in favor of awards to prevailing civil rights plaintiffs at the expense of losing defendants also rests on a simple equitable consideration: namely, that those who violate federal law should redress those whose rights have been violated. As the Court observed in Christiansburg Garment, 434 U.S. at 418, "when a district court awards counsel fees to a prevailing plaintiff, it is awarding them against a violator of federal law." The policy of making violators pay fees also serves the ends of deterrence. As Congress observed, a provision for shifting the cost of attorneys' fees to violators is "ancillary and incident to securing compliance with the() (civil rights laws), and * * * fee awards are an integral part of the remedies necessary to obtain such compliance." S. Rep. No. 1011, supra, at 5. See also id. at 2 (fee awards necessary "if those who violate the Nation's fundamental laws are not to proceed with impunity"); Maine v. Thiboutot, 448 U.S. 1, 11 (1980) (fee awards under Section 1988 are an integral part of remedies to obtain compliance with Section 1983). Not surprisingly, this Court has consistently linked fee awards with liability for civil rights violations. /7/ Thus, in Hanrahan v. Hampton, 446 U.S. 754 (1980), where the plaintiff won the right to a new trial, the Court held that no interim award of attorneys' fees could be made until the plaintiff had established some entitlement to relief on the merits. See id. at 758 n.4 (citing Christiansburg Garment, 434 U.S. at 418, for proposition that, when a district court awards fees to a prevailing civil rights plaintiff, "it is awarding them against a violator of federal law"). Likewise in Hensley v. Eckerhart, 461 U.S. 424 (1983), the Court held that a partially successful plaintiff should not recover fees for those portions of a claim on which it did not succeed. In another context, the Court in Kentucky v. Graham, 473 U.S. 159, 171 (1985), stated repeatedly that "fee and merits liability run together." See id. at 164, 165, 168, 170; see also Grubbs v. Butz, 548 F.2d 973, 976 (D.C. Cir. 1976) (concluding on basis of legislative history that no fee award should follow successful interlocutory appeal because "we cannot believe Congress would have countenanced assessing fees against a defendant absent any showing of discrimination") (cited for its legislative analysis in Christiansburg Garment, 434 U.S. at 420). /8/ 3. Finally, in giving effect to the provision for awards of fees to prevailing defendants, the Court has stressed the importance of ensuring a full adjudication of the controversy. Thus, the fact that fee awards are available to any "prevailing party" not only encourages private plaintiffs to sue but also gives defendants the incentive to mount "a vigorous defense." Christiansburg Garment, 434 U.S. at 419. As this Court concluded, "while it was certainly the policy of Congress that Title VII plaintiffs should vindicate 'a policy that Congress considered of the highest priority,' it is equally certain that Congress entrusted the ultimate effectuation of that policy to the adversary judicial process." Ibid. (citation omitted); see also Subcomm. on Constitutional Rights of the Senate Comm. on the Judiciary, 94th Cong., 2d Sess., Civil Rights Attorneys' Fees Awards Act of 1976, Source Book: Legislative History, Texts, and Other Documents 268 (Comm. Print 1976) (remarks of Rep. Jordan) (fee award amendment to Section 1988 meant to "open the judicial process to everybody who is entitled to use that process * * * (without) prospect of attorney(s') fees deterring their enthusiasm"). B. Although the foregoing considerations were developed in the context of a traditional bipolar dispute between a plaintiff and defendant, they also are relevant to more complex multipolar disputes. Such disputes can take a variety of forms, and can generate claims for attorneys' fees between plaintiffs and intervenors, defendants and intervenors, and conceivably even between two intervenors. /9/ This case does not call upon the Court to lay down a single rule applicable to all conceivable third-party situations. /10/ Rather, it presents only one type of third-party dispute, albeit an important and recurring one: that between a plaintiff and an intervenor who has not been found or alleged to have engaged in unlawful discrimination. In these circumstances, we believe that the foregoing policy considerations suggest that claims for attorneys' fees should be assessed under the standard applicable to unsuccessful plaintiffs rather than defendants. 1. The rationale for treating intervenors like plaintiffs can be seen most clearly in the case of an intervenor who claims that some element of the relief sought by the plaintiff violates its own civil rights. For example, nonminority employees may intervene claiming that numerical relief sought by minority plaintiffs would violate their rights (see, e.g., Reeves v. Harrell, 791 F.2d 1481 (11th Cir. 1986)); a group of minority employees may intervene to oppose a suit brought by nonminority employees challenging a voluntary affirmative action program (see, e.g., Baker v. City of Detroit, 504 F. Supp. 841 (E.D. Mich. 1980), aff'd sub nom. Bratton v. City of Detroit, 704 F.2d 878 (6th Cir. 1983), cert. denied, 464 U.S. 1040 (1984)), or intervene because it disagrees with another minority group about a proper remedy. /11/ In such cases, the policy of encouraging vindication of meritorious civil rights claims cannot be said to favor either the plaintiff or the intervenor, since both are asserting claims grounded in civil rights laws. Insofar as Section 706(k) is intended "to ensure 'effective access to the judicial process' for persons with civil rights grievances" (Hensley, 461 U.S. at 429 (citation omitted)), the intervenor is in no different posture than the plaintiff. In such situations, there are, in effect, "two sets of 'plaintiffs' each of which has brought claims in good faith." Kirkland v. N.Y. State Dep't of Correctional Services, 524 F. Supp. 1214, 1218 (S.D.N.Y. 1981). Nor would an award against an innocent intervenor serve to deter violations of the federal civil rights laws. By definition, such an intervenor has nt violated any of the plaintiff's rights; it is seeking only to vindicate its own rights. An award against a party who is not blameworthy is inconsistent with the equitable considerations that Congress presumably believed would guide the district courts when it gave them the authority to make fee awards in their discretion (see 42 U.S.C. 2000e-5(k)), and that this Court weighed heavily in establishing guidelines for the exercise of discretion by those courts. See Piggie Park, 390 U.S. at 402 (prevailing plaintiff should ordinarily recover attorneys' fee "unless special circumstances would render such an award unjust"); Christiansburg Garment, 434 U.S. at 418 (presumptive awards to plaintiff justified because made "against a violator of federal law"); see also Annunziato v. The Gan, 744 F.2d 244, 253 (2d Cir. 1984) (finding fact that intervenor "blameless" to be a "special circumstance"); Joseph L. v. Office of Judicial Support, 638 F. Supp. 833, 836 (E.D. Pa. 1986) (same); May v. Cooperman, 578 F. Supp. 1308, 1316-1318 (D.N.J. 1984) (same); Tamanaha, The Cost of Preserving Rights: Attorneys' Fee Awards and Intervenors in Civil Rights Litigation, 19 Harv. C.R.-C.L. L. Rev. 109, 145-150 (1984). /12/ Finally, the assessment of fees against an innocent intervenor would undermine the objective of ensuring the full and fair consideration of all conflicting interests and perspectives. If attorneys' fees were routinely awarded against unsuccessful intervenors, such parties would be discouraged from entering the judicial process. This would frustrate the objective of ensuring "effective access to the judicial process" for all those with civil rights grievances. Hensley, 461 U.S. at 429 (citation omitted); see, e.g., Reeves, 791 F.2d at 1484; Kirkland, 524 F. Supp. at 1218-1219. In other circumstances involving third party interests, this Court has repeatedly stressed the importance of ensuring a full and fair consideration of all affected claims. See, e.g., Local Number 93, Int'l Ass'n of Firefighters v. City of Cleveland, 478 U.S. 501, 529 (1986) ("parties who choose to resolve litigation through settlement may not dispose of the claims of a third party, and a fortiori may not impose duties or obligations on a third party, without that party's agreement. A court's approval of a consent decree between some of the parties therefore cannot dispose of the valid claims of nonconsenting intervenors"); W. R. Grace & Co. v. Local Union 759, Int'l Union of the Rubber Workers of America, 461 U.S. 757 (1983); Ford Motor Co. v. EEOC, 458 U.S. 219, 239-240 (1982). A rule that would allow attorneys' fees to be presumptively awarded against intervenors would disserve these aims. Moreover, such a result would be especially odd given that an intervenor asserting its own civil rights claim could simply wait until the conclusion of the main case and then file a separate lawsuit, in which case it would clearly enjoy the status of a plaintiff for civil rights attorneys' fees purposes. See Pet. App. 11a-12a. /13/ Thus, the policy considerations that this Court relied upon in Piggie Park and Christiansburg Garment point to the conclusion that an innocent intervenor who enters a case solely for the purpose of protecting its own civil rights should be treated like a civil rights plaintiff rather than a defendant for purposes of assessing its liability for attorneys' fees. 2. The analysis should be the same in the case of an innocent intervenor who seeks to vindicate rights grounded in some source other than the civil rights laws. This case presents one example, insofar as petitioners were seeking to vindicate their rights under their collective bargaining agreement. See also Grano v. Barry, 783 F.2d 1104, 1108 (D.C. Cir. 1986) (claim that plaintiffs' action constituted unconstitutional taking); Richardson v. Alaska Airlines, Inc., 750 F.2d 763 (9th Cir. 1984) (claim that consent decree in Age Discrimination in Employment Act suit violated collective bargaining rights). In such cases, there can be no question that the second and third policies discussed above still favor treating the intervenor like a plaintiff. Since the intervenor has not been accused of violating the plaintiff's rights, no equitable purpose or deterrent function would be served by routinely awarding fees. And given the complex state of current civil rights litigation, multiple party participation is desirable in order to ensure adequate consideration of the various interests affected. See Tamanaha, The Cost of Preserving Rights, 19 Harv. C.L.-C.L.L. Rev. at 119. As the court in Kirkland noted, "(t)he law would not be well served by (discouraging intervention) * * * for, especially in the context of the development of constitutional doctrine and remedies, it is incumbent on the court to consider all the competing interests at stake." 524 F. Supp. at 1219. It is true in this situation that the plaintiff is seeking to vindicate a claim grounded in the civil rights laws, whereas the intervenor is not. But typically, the intervenor will have entered the case only to protest some aspect of relief sought by the plaintiffs, not to contest the underlying right of the plaintiff to recover. Insofar as the plaintiff will or has already established its right to relief, the policy of providing an incentive to plaintiffs to vindicate their civil rights has been accomplished by the fee award against the defendant. /14/ Moreover, we doubt that any distinction that could be drawn between "civil rights" claims and "non-civil rights" claims would be workable. /15/ First, it is not clear what claims would qualify as "civil rights" claims. How, for example, would the claim of an unconstitutional taking of property be categorized? See Grano, supra. Second, it cannot be said that either Congress or the parties would always regard "civil rights" claims as more weighty or deserving of protection than other types of claims, such as collective bargaining rights (see, e.g., Richardson v. Alaska Airlines, supra; Pet. App. 20a (Manion, J., dissenting) (petitioner here was at least in some sense obliged to defend its members' rights under the collective bargaining agreement)). Indeed, fee-shifting statutes have become commonplace in recent years, extending far beyond the areas of civil and constitutional rights, and Congress has not established a weighing system for determining which fee statute is to prevail when parties assert conflicting claims that would entitle them to fee awards under different statutes. Finally, any distinction between civil rights claims and other claims would only encourage parties to engage in artful drafting, clothing as many claims as possible in constitutional or civil rights garb. Pet. App. 13a. Sorting out the bona fides of such claims, as well as establishing the line between "genuine" civil rights claims and all others, would violate this Court's admonition in Hensley v. Eckerhart, 461 U.S. at 437, that "(a) request for attorney's fees should not result in a second major litigation." 3. We also think the same result should follow where the intervenor advances an argument -- not grounded in an assertion of its own civil rights -- that challenges the plaintiff's right to receive any relief at all, although admittedly here the case is somewhat closer. In the present case, for example, petitioner challenged the jurisdiction of the district court to approve the settlement between respondent and TWA insofar as it granted relief to individuals who had not filed timely charges of discrimination with the EEOC. See Pet. App. 4a; Air Line Stewards & Stewardesses Ass'n v. Trans World Airlines, Inc., No. 70 C 2071 (N.D. Ill. Sept. 14, 1979). In this situation, of course, the second and third policy considerations still favor treating the intervenor like a plaintiff. The intervenor has not violated the plaintiff's civil rights; it has simply challenged the plaintiff's right to recover against the defendant. And the presence of the intervenor is still desirable in order to achieve a full adjudication of all rights and interests affected by the controversy. The complicating factor in this situation is that here, unlike in the first two situations, the intervenor is advancing contentions that serve as a greater impediment to the plaintiff's efforts to establish that there has been a violation of its civil rights. Insofar as an intervenor disputes the existence of a civil rights violation, and puts the plaintiff to proof of the violation, it generates expenses for the plaintiff of the type that Congress intended should be reimbursed under Section 706(k). In fact, insofar as the intervenor asserts contentions that contest the existence of the violation claimed by the petitioner, the intervenor could be described as a "functional defendant." Cf. United States v. Terminal Transport Co., 653 F.2d 1016, 1019-1021 (5th Cir. 1981) (considering extent to which union not liable for employer's Title VII violation pressed claims of defendant); Vulcan Soc'y v. Fire Dep't, 533 F. Supp. 1054, 1061-1063 (S.D.N.Y. 1982) (same). Consequently, it can be argued that the first policy consideration -- encouraging plaintiffs to vindicate meritorious civil rights claims -- requires that the expenses incurred by a plaintiff in establishing its right to recover, insofar as they are made necessary by the arguments advanced by the intervenor, should be assessed against the intervenor. For several reasons, however, we think that, on balance, an award of fees against a non-violator intervenor is inappropriate even in this situation. /16/ First, an approach that distinguished between arguments that go to the remedy and arguments that go to the existence of an underlying violation would unfairly limit intervenors in the types of claims they could bring. Presumably the intervenor's motivation in entering the litigation would be the same in either event -- to protect its own rights or interests. It would be odd, to say the least, to adopt a rule that would subject the intervenor to attorneys' fees if it advanced one type of argument, but not if it advanced another type of argument, when the arguments were otherwise equally meritorious. Second, the distinction between arguments that go to the merits and arguments that go to the scope of relief would be just as unworkable as the distinction between civil rights claims and non-civil rights claims. Frequently, a challenge to the remedy may include within its scope a challenge to, or a minimization of, the original defendant's liability. This is especially true in the civil rights area, where one of the established elements in determining whether a plaintiff is entitled to affirmative relief is the nature and extent of previous violations of the plaintiff's civil rights. City of Richmond v. J.A. Croson Co., No. 87-998 (Jan. 23, 1989), slip op. 22-31; Johnson v. Transportation Agency, 480 U.S. 616, 627-633 (1987); United States v. Paradise, 480 U.S. 149, 168-170 (1987); Local 28, Sheet Metal Workers' Int'l Ass'n v. EEOC, 478 U.S. 421, 448-451, 475-476 (1986). The work of ferreting out "merits" claims and "relief" claims in this situation -- and determining how to apportion attorney time between the two -- would be substantial and would again threaten to turn attorneys' fee litigation into "a second major litigation." Hensley, 461 U.S. at 437. Finally, although it is always difficult to assign weights to conflicting policy considerations, neither the policy of deterring civil rights violations nor the policy of ensuring the full adjudication of all claims and interests supports treating an innocent intervenor like a defendant -- even if the intervenor advances the same arguments that one would expect a defendant to advance. Thus, even if the policy of encouraging plaintiffs in their attempts to vindicate meritorious civil rights claims might lend some support to drawing a distinction between merits arguments and relief arguments, the other policy considerations identified by this Court do not. On balance, therefore, we think that as a rule all innocent intervenors should enjoy the same status as plaintiffs for civil rights attorneys' fee purposes. C. When it fashioned Title VII, Congress by all accounts failed to anticipate the role of intervenors in subsequent litigation. It therefore could presume that the incentive to plaintiffs provided by the fee provision would dovetail with the objective of deterring those who had caused the harm. Given the failure of Congress to address the liability of intervenors, /17/ and the presumption that parties normally bear their own fees (see Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240 (1975)), this Court should not extend the standard it created to guide fee-shifting to defendants from plaintiffs to guide fee-shifting to non-violator intervenors from plaintiffs. Accordingly, the court of appeals erred when it assessed fees against petitioner under the same standard by which it would assess fees against a losing defendant. As a non-violator of the civil rights laws, a losing intervenor should be treated as is a losing plaintiff: it should be assessed fees only upon a finding that its action was "frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." The determination that a party has brought claims that were frivolous, unreasonable, or without foundation is committed to the discretion of the district court. Because that court failed to apply the correct standard in assessing fees against petitioner, it did not conduct an inquiry into the merit of the claims made by petitioner. We do not express any views on the merits of those claims, but suggest that this Court remand the case for consideration whether petitioner's conduct at any point was frivolous, unreasonable, or without foundation according to the standard announced in Christiansburg Garment. CONCLUSION The judgment of the court of appeals should be reversed. Respectfully submitted. WILLIAM C. BRYSON Acting Solicitor General JAMES P. TURNER Acting Assistant Attorney General THOMAS W. MERRILL Deputy Solicitor General ROGER CLEGG Deputy Assistant Attorney General CHRISTINE DESAN HUSSON Assistant to the Solicitor General DENNIS J. DIMSEY Attorney CHARLES A. SHANOR General Counsel Equal Employment Opportunity Commission MARCH 1989 /1/ The district court had previously permitted TWA to amend its answer to assert that claims of class members who had not filed timely charges with the EEOC were barred, but denied TWA's motion to exclude those class members, holding that TWA's violation continued so long as its policy remained in effect. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 388-389 (1982). /2/ "Seniority" ordinarily determines an employee's entitlement to benefits earned during employment. "Competitive seniority," by contrast, "is used to allocate entitlements to benefits among competing employees," including shift assignments and vacation scheduling. Pet. App. 4a n.2. /3/ Newman v. Piggie Park concerned a Section 204(b) claim under Title II of the Act. However, "(i)n Albemarle Paper Co. v. Moody, 422 U.S. 405, the Court made clear that the Piggie Park standard of awarding attorneys' fees to a successful plaintiff is equally applicable in an action under Title VII of the Civil Rights Act." Christiansburg Garment, 434 U.S. at 417. See also Northcross v. Memphis Bd. of Educ., 412 U.S. 427, 428 (1973) (applying Piggie Park standard to fee provision of Emergency School Aid Act); Hensley v. Eckerhart, 461 U.S. 424, 433 n.7 (1983) (standards for awarding fees under Section 1988 should be same as those for awarding fees under provisions of 1964 Act). See also S. Rep. No. 295, 94th Cong., 1st Sess. 40 (1975) (fee provision of amended Voting Rights Act should be interpreted according to Piggie Park standard). /4/ As the Court in Christiansburg Garment noted (434 U.S. at 420), the legislative history of Section 706(k) is "sparse." The version of Title VII reported out of committee did not include a fee provision. See H.R. Rep. No. 914, 88th Cong., 1st Sess. (1963). Rather, the provision was part of the "Mansfield-Dirksen amendment," a comprehensive amendment in the nature of a substitute introduced on the floor of the Senate. 110 Cong. Rec. 11,933, 13,310 (1964). The fee provision, along with a provision allowing appointment of attorneys for individual claimants, was apparently inserted after the removal of a provision that gave the EEOC the power to bring civil claims. Compare Section 707(b) of the House version (id. at 13,168) with Section 706(e) of Pub. L. No. 88-352, 78 Stat. 260, 42 U.S.C. 2000e-5(e) (1970 ed.). See generally Vaas, Title VII: Legislative History, 7 B.C. Ind. & Com. L. Rev. 431, 452-453 (1966). (The power to bring civil charges was later "returned" to the EEOC by the Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, Section 4(a), 86 Stat. 104.) /5/ Although the original House version of the Equal Opportunity Act made fee awards only to "prevailing plaintiffs" (see H.R. Rep. No. 238, 92d Cong., 1st Sess. 32 (1971)), the Congress adopted a comprehensive amendment to the bill that left Section 706(k) unchanged, without debate about that section. See 117 Cong. Rec. 31,979-31,980, 32,110-32,113 (1971); Subcomm. on Labor of Senate Comm. on Labor and Public Welfare, 92d Cong., 2d Sess., Legislative History of the Equal Employment Opportunity Act of 1972 132-147, 314, 326-332 (Comm. Print 1972). /6/ Given this Court's determination that the language and purposes of the civil rights fee provisions should be interpreted pari passu (Northcross, 412 U.S. at 428), we will refer, when appropriate, to the legislative history of Section 1988. Cf. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 379-381 (1969). /7/ Considerations of equity have traditionally guided awards of attorneys' fees. See Sprague v. Ticonic Bank, 307 U.S. 161, 166 (1939) (historical practice of granting fee awards "is part of the original authority of the chancellor to do equity in a particular situation"); see also Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 257-260 (1975). The Court noted in Alyeska Pipeline that, under the "American Rule," fees are not normally awarded to a litigant absent "bad faith" by an opponent, "willful disobedience" of a party to a court order, or the existence of a "common fund" benefitting a group from which reimbursement to a party bearing the costs of preserving the fund through litigation may be made. Id. at 257-260. Section 706(k) and similar provisions remove the prohibition against fees; courts are not restricted to the equitable prerequisites representing the exceptions to the American Rule. Presumably, however, the discretion retained by the district court is to be exercised in light of the equities of the situation. Congress has continued to emphasize the importance of equitable discretion in the appropriate administration of the civil rights fee statutes. See H.R. Rep. No. 1558, supra, at 6, 8; Subcomm. on Constitutional Rights of the Senate Comm. on the Judiciary, 94th Cong., 2d Sess., Civil Rights Attorneys' Fees Awards Act of 1976, Source Book: Legislative History, Texts, and Other Documents 164-171 (Comm. Print 1976) (rejecting amendment mandating awards to defendants prevailing over bad faith or frivolous suits); id. at 266 (remarks of Rep. Railsback) (emphasizing discretion left to district court). /8/ In Consumers Union of United States, Inc. v. American Bar Ass'n, 470 F. Supp. 1055, 1062-1063 (E.D. Va. 1979), the district court held that an award of fees against a state bar association or its officers would be unjust because these defendants, although named in a suit successfully challenging the constitutionality of the state bar code they administered, had no power to change the code and had unsuccessfully attempted to persuade their co-defendants (the state supreme court and its chief justice), who did have power to change the code, to amend it. This Court disagreed with the district court only on the grounds that the state bar association could be held liable for fees as an agency that enforced the state bar code; it did not controvert the district court's conclusion that, had the state bar association been blameless, a fee award against it would have been unjust. Supreme Court of Virginia v. Consumers Union of the United States, 446 U.S. 719, 728, 738-739 (1980). See also Annunziato v. The Gan, 744 F.2d 244 (2d Cir. 1984) (award against blameless intervenor would be "unjust"); Chastang v. Flynn & Emrich Co., 541 F.2d 1040, 1045 (4th Cir. 1976) (making no fee award where defendant redressed violation as soon as possible); Joseph L. v. Office of Judicial Support, 638 F. Supp. 833, 836 (E.D. Pa. 1986) (making no fee award where intervenor innocent of wrongdoing), aff'd on other grounds, 820 F.2d 631 (3d Cir. 1987). /9/ As Congress has recognized (S. Rep. No. 1011, supra, at 4 n.4), "(i)n the large majority of cases the party or parties seeking to enforce (protected) * * * rights will be the plaintiffs and/or plaintiff-intervenors. However, in the procedural posture of some cases, the parties seeking to enforce such rights may be the defendants and/or the defendant-intervenors." See also S. Rep. No. 295, 94th Cong., 1st Sess. 40 n.42 (1975) (substantively same notation, concerning fee provision of Voting Right Act Amendments of 1975). The courts have in a variety of contexts awarded fees to intervenors raising civil rights claims as prevailing parties. See, e.g., Commissioners Court v. United States, 683 F.2d 435 (D.C. Cir. 1982) (defendant-intervenors in Voting Rights declaratory judgment suit awarded fees as plaintiffs); Donnell v. United States, 682 F.2d 240 (D.C. Cir. 1982) (same); Prate v. Freedman, 583 F.2d 42 (2d Cir. 1978) (defendant-intervenors in suit to set aside consent decree awarded fees as defendants; issue of applicability of plaintiff's standard not reached); Baker v. City of Detroit, 504 F. Supp. 841 (E.D. Mich.), aff'd sub nom. Bratton v. City of Detroit, 704 F.2d 878 (6th Cir. 1983), cert. denied, 464 U.S. 1040 (1984) (defendant-intervenors in reverse discrimination suit awarded fees as plaintiffs); see also Seattle School Dist. No. 1 v. Washington, 633 F.2d 1338 (9th Cir. 1980) (plaintiff-intervenors in declaratory judgment suit on constitutionality of voter initiative awarded fees), aff'd on other grounds, 458 U.S. 457 (1982); United States v. Board of Educ., 605 F.2d 573 (2d Cir. 1979) (plaintiff-intervenor protecting Hispanic interests in formulation of school desegregation remedy awarded fees); Davis v. Board of School Comm'rs, 600 F.2d 470 (5th Cir. 1979) (plaintiffs-intervenors in school desegregation case awarded fees); see generally, E. Larson, Federal Court Awards of Attorney's Fees (1981) (discussing status of intervenor as party for purposes of attorneys' fees). /10/ This brief addresses an intervenor's liability for the payment of attorneys' fees under Section 706(k) of the Civil Rights Act, and closely related provisions (see note 3, supra). The purposes and policies of these provisions largely dictate the ultimate liability for the payment of fees. The purposes and policies of other statutory attorneys' fees provisions, however, differ from those underlying the Civil Rights Act and similar statutes. In particular, the purpose of affording awards of attorneys' fees under the "appropriate" standard in numerous environmental laws was to ensure proper implementation and enforcement of the various requirements of those acts, rather than vindication of a plaintiff's individual federal rights. See generally Ruckelshaus v. Sierra Club, 463 U.S. 680 (1983). Furthermore, a plaintiff or petitioner may be a successful party in such a suit without establishing a past violation of law on anyone's part, because a regulation, permit, or program to govern future conduct may be at issue in the litigation. Therefore, despite this Court's repeated assertions that attorneys' fees statutes should be interpreted pari passu, Pennsylvania v. Delaware Valley Citizens' Council, 478 U.S. 546, 559-560 (1986), the circumstances in which an intervenor should bear the burden of payment of plaintiff's attorneys' fees may differ under statutory schemes other than those associated with civil rights. Accordingly, this brief sets forth the views of the United States only as to attorneys' fees provisions in the civil rights context. /11/ Similarly, two classes of plaintiffs might jointly challenge the disparate impact of a hiring procedure, but disagree strongly about the new test to be fashioned. Cf. Zamlen v. City of Cleveland, 48 F.E.P. Cas. (BNA) 1489, 1494 (N.D. Ohio 1988) (unsuccessful women applicants for firefighter positions challenged, inter alia, adjustment of test results made under affirmative action plan for hiring of blacks and Hispanics). It is frequently the case that removing portions of a test that have a disparate impact on one group may actually aggravate the disparate impact on another group. In general, the increasingly "fluid" nature of intervention means that minority groups Congress clearly intended to protect (see H.R. Rep. No. 914, 88th Cong., 1st Sess. 18 (1963)) may increasingly appear as intervenors. See, e.g., Baker v. City of Detroit, supra (blacks intervened to protest reverse discrimination relief); see also Walters v. City of Atlanta, 803 F.2d 1135 (11th Cir. 1986) (woman attempted to intervene to protest job awarded to man). /12/ But see Charles v. Daley, 846 F.2d 1057 (7th Cir. 1988) (defendant who intervened to defend constitutionality of abortion statute liable for fees even though not a wrongdoer); Nash v. Chandler, 848 F.2d 567, 573-574 (5th Cir. 1988) (State of Texas, which intervened solely to defend constitutionality of state statute, may be liable for attorneys' fees, but amount must be adjusted to reflect fact that it was not a wrongdoer); Haycraft v. Hollenbach, 606 F.2d 128 (6th Cir. 1979) (intervenor who sought to present alternative school desegregation plan liable for attorneys' fees); Akron Center for Reproductive Health v. City of Akron, 604 F. Supp. 1268, 1274 (N.D. Ohio 1984) (parent intervenors defending constitutionality of abortion statute assessed fees). /13/ Such a result would also have the anomalous result of encouraging, rather than discouraging, fragmentation of litigation and delay in the development and implementation of a lasting remedy for discrimination in employment. Some courts have held that parties who could have intervened in adjudication of a consent decree cannot collaterally attack such a judgment later. See, e.g., Marino v. Oritz, 806 F.2d 1144 (2d Cir. 1986), aff'd by an equally divided court, No. 86-1415 (Jan. 13, 1988). It is the position of the United States (see Martin v. Wilks, Nos. 87-1614, 87-1639 & 87-1668 (argued Jan. 18, 1989)) that such a rule offends the Due Process Clause and is inconsistent with the scheme established by the Federal Rules of Civil Procedure. See U.S. Br. 12-27. We will assume for purposes of this discussion that parties not part of a previous suit can attack the result of that suit later, insofar as it affects their interests. Of course, if this Court holds to the contrary in Martin, all parties will be required to intervene in civil rights litigation to protect their rights. /14/ In cases where the remedial stage of the litigation is prolonged, it may result in some disincentive to the original plaintiffs. It is unclear, however, that the disincentive will be significant. First, fees will continue to be available against any party who extends the litigation by making groundless claims, or claims in bad faith. See Christiansburg Garment, 434 U.S. at 421. Second, intervenors generally do not enter such litigation lightly, since they cannot expect to receive fee awards for non-civil rights claims. Third, all fees billable to litigation caused by the defendant will continue to be borne by that party. Fourth, if the remedial phase of litigation exhausts a plaintiff's ability to retain counsel, the plaintiff may request a court-appointed lawyer. 42 U.S.C. 2000e-5(f)(1). /15/ Some courts have indicated that their treatment of intervenors may vary depending on whether the intervenor is raising a civil rights claim -- in which case the intervenor will qualify as a plaintiff -- or a non-civil rights claim -- in which case the intervenor may be treated as a defendant. See, e.g., Reeves, 791 F.2d at 1484; Kirkland, 524 F. Supp. at 1218; see also Tamanaha, The Cost of Preserving Rights: Attorneys' Fee Awards and Intervenors in Civil Rights Litigation, 19 Harv. C.R.-C.L.L. Rev. 109, 143 (1984). /16/ In this regard, it should be noted that alleged violators of the civil rights laws as well as adjudicated violators may appropriately have fees awarded against them when a case is settled. Maher v. Gagne, 448 U.S. 122 (1980). In this case, of course, no such allegation was made against petitioner. And while the approach suggested in this brief might encourage parties to amend their complaints after intervention to assert civil rights violations against the intervenor, this does not seem to us to be an undesirable result. If such claims are ultimately adjudicated, then one way or another the appropriateness of a fee award will be resolved; frivolous amendments will, of course, risk an award against the plaintiff; and settlements will not be discouraged because the parties can always include as a part of the settlement an explicit resolution of the fees issue. /17/ The language in the Senate Report accompanying Section 1988 does not indicate more than that Congress intended prevailing intervenors to be awarded fees. See S. Rep. No. 1011, supra, at 4 n.4. In fact, Congress's citation of Shelley v. Kraemer, 334 U.S. 1 (1948), is consistent with a continuing assumption on its part that only wrongdoers would be assessed fees. In that case, the plaintiffs below brought suit to have the defendants, black buyers, enjoined from taking possession of a property governed by a restrictive convenant excluding all but white inhabitants. The plaintiffs were, on the facts of that case, the discriminators.