# Independent Federation of Flight Attendants v. Zipes/Dissent Marshall

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* Case Syllabus
* Opinion of the Court
* Concurring Opinion Blackmun
* Dissenting Opinion Marshall
Justice MARSHALL, with whom Justice BRENNAN joins, dissenting.
Nearly two decades ago, female flight attendants of Trans World Airlines (TWA) brought a class action challenging the airline's practice of terminating all female flight attendants who became mothers, while retaining their male counterparts who became fathers. After almost 10 years of litigation, the parties reached a comprehensive settlement. At this point, petitioner Independent Federation of Flight Attendants (IFFA) intervened to oppose the settlement on two grounds: first, that untimely filing of charges by certain plaintiffs deprived the District Court of jurisdiction to approve their claims for equitable relief; and second, that reinstatement of the plaintiffs with full retroactive "competitive" seniority would violate the collective-bargaining agreement between TWA and IFFA's incumbent members. The plaintiffs spent nearly three years and $200,000 successfully defending the settlement against the intervenor's claims in the District Court, the Court of Appeals for the Seventh Circuit, and this Court. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398-399, 102 S.Ct. 1127, 1135-1136, 71 L.Ed.2d 234 (1982). Despite the fact that the plaintiffs prevailed against IFFA, and that IFFA was solely responsible for forcing them to invest additional time and money to defend the agreement and thereby vindicate their civil rights, the majority holds that the District Court had practically no discretion under § 706(k) of the Civil Rights Act of 1964 (Act), 42 U.S.C. § 2000e-5(k), to award the plaintiffs attorney's fees from IFFA. Because this result ignores both the language of § 706(k) and the objectives of Title VII of the Act, I dissent.
The majority begins its opinion by quoting § 706(k), but then proceeds to ignore its express language. Section 706(k) states that a "court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney' fee." While § 706(k) provides no detailed rules as to when attorney's fees should be awarded, its terms nonetheless make two things clear. First, the only party mentioned in § 706(k) is "the prevailing party." Thus, when a district court decides whether to award fees, it must be guided first and foremost by the interests of the prevailing party. See Texas State Teachers Assn. v. Garland Independent School Dist., 489 U.S. 782, 790, 109 S.Ct. 1486, 1492, 103 L.Ed.2d 866 (1989) ("Congress clearly contemplated that . . . fee awards would be available where a party has prevailed on an important matter in the course of the litigation . . .") (internal quotations omitted); Charles v. Daley, 846 F.2d 1057, 1064 (CA7 1988) (civil rights fee-shifting statutes "fashion the parameters of eligibility for fee awards, rather than . . . fix with precision the bounds of liability for such awards") (emphasis in original). Second, § 706(k) contains "permissive and discretionary language," Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 418, 98 S.Ct. 694, 699, 54 L.Ed.2d 648 (1978), reflecting Congress' hostility to categorical rules for the award of attorney's fees.
The majority overlooks both of these textual directives. After Zipes v. Trans World Airlines, supra, there can be little doubt that the plaintiffs prevailed in the face of IFFA's challenges to the settlement agreement. Disregarding § 706(k)'s focus on the success of the plaintiffs, however, the majority decrees that the propriety of a fee award turns instead on the motivations and claims of the losing party, in this case an intervenor. To make matters worse, the majority also ignores Congress' explicit conferral of discretion on the district courts, and instead establishes an absolute rule that, in all circumstances, a court must treat an intervenor like a plaintiff for fee liability purposes. Section 706(k), of course, does not invest district courts with unfettered discretion to award attorney's fees to prevailing parties. But this does not mean that this Court has a free hand to fashion limitations. Rather, the principles we articulate to guide a district court's discretion in awarding attorney's fees in civil rights cases should respect the objectives of Title VII. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 416-417, 95 S.Ct. 2362, 2370-2371, 45 L.Ed.2d 280 (1975). Regrettably, the limitations formulated by the majority do nothing of the kind.
The Civil Rights Act of 1964 embodies a national commitment to eradicate discrimination. Congress intended not only "to make the wrongdoers pay at law," ante, at 761, but more broadly to make victims of discrimination whole. See Albemarle Paper Co., supra, at 418, 95 S.Ct., at 2372. Given the scarcity of public resources available for enforcement, individuals injured by discrimination serve as "the chosen instrument of Congress to vindicate 'a policy that Congress considered of the highest priority.' " Christiansburg Garment, supra, at 418, 98 S.Ct., at 699, quoting Newman v. Piggie Park Enterprises Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968). Congress recognized that victims of discrimination often lack the resources to retain paid counsel, and frequently are unable to attract lawyers on a contingency basis because many victims seek injunctive relief rather than pecuniary damages. See, e.g., S.Rep. No. 94-1011, pp. 1-4 (1976); H.R.Rep. No. 94-1558, pp. 1-3 (1976), U.S.Code Cong. & Admin.News 1976, p. 5908; Note, Promoting the Vindication of Civil Rights Through the Attorney's Fees Awards Act, 80 Colum.L.Rev. 346, 350-351 (1980). It therefore enacted § 706(k) to ensure that victims of discrimination could obtain lawyers to bring suits necessary to vindicate their rights and to provide victorious plaintiffs with fully compensatory attorney's fees. Newman, supra, at 402, 88 S.Ct., at 966. Nothing in the legislative history indicates that Congress intended to limit the types of losing parties against whom attorney's fees could be awarded. Indeed, given Congress' broad remedial goals, the majority errs in casually presuming that such limits exist.
The majority's contention that its ruling will not discourage private plaintiffs from bringing civil rights suits, or that it will only "create some marginal disincentive," ante, at 762, is hard to take seriously. The costs to plaintiffs are no less real when the person causing the financial expenditures is an intervenor than when he is a defendant. To vindicate their civil rights, many plaintiffs must respond to, and defeat, claims raised by intervenors in support of the challenged practice or in opposition to the proposed remedy. Such intervenors force victims of discrimination to spend additional scarce resources to obtain relief, often long after the named defendant has conceded a violation of the Act. See, e.g., Geier v. Richardson, 871 F.2d 1310, 1313 (CA6 1989) (United States, as intervenor, challenged settlement reached after 15 years of litigation); Akron Center for Reproductive Health v. Akron, 604 F.Supp. 1268, 1272 (ND Ohio 1984) (individuals who intervened solely to defend an abortion ordinance that did not implicate their conduct filed 40 documents, at least 14 of which required independent responses from the plaintiffs); Vulcan Society of Westchester Co., Inc. v. Fire Dept. of White Plains, 533 F.Supp. 1054, 1062 (SDNY 1982) (union intervened and moved to dissolve a temporary restraining order granted to the plaintiffs). By denying plaintiffs the opportunity to be compensated for those expenditures simply because the losing party was an intervenor rather than a named defendant, the majority breaks the congressional promise that prevailing plaintiffs will be made whole for efforts to vindicate their civil rights. Cf. Sullivan v. Hudson, 490 U.S. 877, 109 S.Ct. 2248, 104 L.Ed.2d 941 (1989) (right to fee awards for prevailing civil rights plaintiffs extends to work performed in administrative as well as judicial proceedings).
The majority further states that a defendant's liability for "all of the fees expended by the plaintiff in litigating the claim against him, . . . alone creates a substantial added incentive for victims of Title VII violations to sue." Ante, at 761 (emphasis added). The majority apparently believes that the typical victim injured by discrimination will have available discretionary income, possibly running into the hundreds of thousands of dollars, to spend to counter intervenors' claims. If the typical victim had access to such financial resources, however, there would have been less need in the first place for civil rights fee-shifting statutes. Or perhaps the Court is assuming that the initial fee award in this case of over $1.25 million is so large that it should cover whatever costs the plaintiffs have incurred, including those costs incurred in responding to the intervenor's claims. But this ignores the fact that the District Court concluded that $1.25 million was a reasonable attorney's fee only for the hours the plaintiffs' attorneys spent reaching the settlement with the defendant. The notion that this award can also compensate the plaintiffs for the expenses of subsequent litigation against the intervenor presumes that the initial fee award was not reasonable, but rather far in excess of the amount warranted.
To justify a result contrary to the language of § 706(k) and the objectives of Title VII, the Court offers two propositions: first, that liability on the merits is a prerequisite for liability for fees; and second, that the interests of intervenors are as important as the civil rights concerns of plaintiffs. Neither assertion withstands scrutiny. Nor does either explain why the majority has adopted a blanket rule that all intervenors must be treated like plaintiffs for purposes of fee liability.
This Court has never held that one is immune from liability for attorney's fees absent a finding of liability on the merits. On the contrary, we have expressly recognized that a district court's authority to award fees in civil rights cases does not require a finding that any party caused a civil rights injury. See Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 2575, 65 L.Ed.2d 653 (1980) ("Nothing in the language of § 1988 conditions the District Court's power to award fees on . . . a judicial determination that the plaintiff's rights have been violated"). The majority's alternative suggestion stems from a misreading of several of this Court's precedents.
In Christiansburg Garment, for example, we held that prevailing defendants could recover fees from civil rights plaintiffs only if the suit was "frivolous, unreasonable, or without foundation." 434 U.S., at 421, 98 S.Ct., at 700. We explained that the two "equitable considerations" that warrant an award of attorney's fees when a plaintiff prevails-compensating the party who is the chosen instrument for enforcing civil rights laws, and assessing fees "against a violator of federal law"-are "wholly absent" when a defendant prevails against a plaintiff. Id., at 418, 98 S.Ct., at 699. The majority reads Christiansburg Garment as mandating that both considerations be satisfied before attorney's fees can be imposed. But our holding that a plaintiff could be assessed attorney's fees in certain circumstances plainly demonstrates that liability on the merits is not always a precondition for liability for fees.
Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985), likewise provides no support for the majority's assertion that civil rights wrongdoers are the only persons liable for fees. The plaintiffs in Graham sued employees of the Commonwealth of Kentucky in their personal capacity for civil rights violations, and named the Commonwealth for attorney's fees that might result. Relying on the Eleventh Amendment, the District Court dismissed the Commonwealth as a party. The Commonwealth then refused to defend the individual defendants or to pay for their litigation expenses. Although the plaintiffs ultimately prevailed against the individual defendants, we concluded that § 1988 did not authorize a fee award against the Commonwealth because it "ha[d] not been prevailed against." Id., at 165, 105 S.Ct., at 3104. We thus refused to impose vicarious liability for attorney's fees on a nonparty who neither actively participated nor intervened in the litigation. That is hardly the situation in this case. The plaintiffs here prevailed against a party who voluntarily intervened in the litigation and who actively opposed the settlement for several years after the defendant had agreed to liability.
Nor does this Court's decision in Supreme Court of Virginia v. Consumers Union of United States, Inc., 446 U.S. 719, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980), support the proposition that liability on the merits is always a precondition to liability for fees. In Consumers Union, we absolved the Supreme Court of Virginia from fee liability because it had been acting in a legislative capacity when it promulgated the challenged regulations, and thus enjoyed common-law absolute legislative immunity. Id., at 738-739, 100 S.Ct., at 1977-1978. Unlike the Commonwealth of Kentucky and the Supreme Court of Virginia, IFFA enjo § no special immunity warranting exemption from fee liability.
Aside from its unpersuasive assertion that fee liability must be conditioned on a finding of wrongdoing, the majority never even attempts to explain why it adopts a categorical rule directing district courts to treat all intervenors like civil rights plaintiffs. Whatever validity such treatment might have where an intervenor raises a civil rights claim, there is absolutely no justification for it where, as in this case, an intervenor asserts non-civil-rights claims of third parties, or where an intervenor raises no third-party claims at all. The majority's failure to differentiate among intervenors cannot be squared with Congress' conferral of discretion on the district courts.
The majority also seeks to justify its interpretation of § 706(k) by asserting the importance of the claims asserted by intervenors. With respect to this case, the majority states that IFFA's contract-based rights "are entitled to no less respect than the rights asserted by plaintiffs in the subject suit." Ante, at 765. The issue, however, is not whether the claims are entitled to equal respect, but whether fees are beyond the discretion of the District Court. As the majority concedes, "intervenors raising non-Title VII claims are not, like Title VII plaintiffs, 'the chosen instrument[s] of Congress.' " Ante, at 763, quoting Christiansburg Garment, 434 U.S., at 418, 98 S.Ct., at 699. The central fact then is not, as the Court suggests, "that petitioner litigated . . . to prevent TWA's bargaining away of its members' seniority rights in order to settle with respondents," ante, at 765-766, or that IFFA did not violate Title VII, but rather that the plaintiffs who seek fees from IFFA are "the chosen instruments of Congress" to eradicate discrimination. In its rush to protect an intervenor who contributed almost $200,000 in costs and nearly three years to the plaintiffs' struggle to achieve a settlement, the Court leaves behind the plaintiffs themselves, thereby reversing congressional priorities. The critical question in determining whether fees are awarded pursuant to § 706(k) should be whether the plaintiff prevailed, either against a named defendant or an intervenor. If the plaintiff has done so, fees ordinarily should-and certainly may-be awarded.
Finally, the majority ignores the likely consequence of today's decision. In the future, defendants can rely on intervenors to raise many of their defenses, thereby minimizing the fee exposure of defendants and forcing prevailing plaintiffs to litigate many, if not most, of their claims against parties from whom they have no chance of recovering fees. Without the hope of obtaining compensation for the expenditures caused by intervenors, many victims of discrimination will be forced to forgo remedial litigation for lack of financial resources. As a result, injuries will go unredressed and the national policy against discrimination will go unredeemed. I dissent.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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