Independent Federation of Flight Attendants v. Zipes/Opinion of the Court

by Antonin Scalia

Section 706(k) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k), provides in relevant part that a "court, in its discretion, may allow the prevailing party, other than the [Equal Employment Opportunity] Commission or the United States, a reasonable attorney's fee as part of the costs." In this case we must determine under what circumstances § 706(k) permits a court to award attorney's fees against intervenors who have not been found to have violated the Civil Rights Act or any other federal law.

* This controversy began in 1970 when respondents, female flight attendants of Trans World Airlines, brought this class action against TWA claiming that its policy of terminating flight attendants who became mothers constituted sex discrimination that violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Respondents were represented by petitioner's predecessor union, the Air Line Stewards and Stewardesses Association (ALSSA). Soon after the suit was filed, TWA abandoned the challenged policy and entered into a settlement agreement with ALSSA. This agreement was approved by the District Court, but class members dissatisfied with certain of its terms appealed. Discerning a potential conflict between ALSSA's obligations to respondents and its obligations to incumbent flight attendants, the Court of Appeals reversed the District Court's judgment and ordered that ALSSA be replaced as the representative of respondents' class. Air Line Stewards and Stewardesses Assn., Local 550, TWU, AFL-CIO v. American Air Lines, Inc., 490 F.2d 636, 643 (CA7 1973). On remand the District Court granted summary judgment to respondents on the merits. The Court of Appeals affirmed the District Court's determination that TWA's policy violated Title VII. In re Consolidated Pretrial Proceedings in Airline Cases, 582 F.2d 1142, 1144 (CA7 1978). However, holding that the timely filing of charges with the Equal Employment Opportunity Commission (EEOC) is a jurisdictional prerequisite to suit in federal court, the court went on to find that over 90% of the respondents' claims were on that ground jurisdictionally barred. Id., at 1149-1150. Both parties filed petitions for certiorari; at their request we deferred consideration of the petitions pending the outcome of ongoing settlement negotiations. Sub nom. Zipes v. Trans World Airlines, Inc., 442 U.S. 916, 99 S.Ct. 2834, 61 L.Ed.2d 282 (1979). The parties again reached a settlement, in which TWA agreed to establish a $3 million fund to benefit all class members and to credit class members with full company and union "competitive" seniority from the date of termination. ^[1]

At this point petitioner, which had replaced ALSSA as the collective-bargaining agent for TWA's flight attendants, sought permission to intervene in the lawsuit on behalf of incumbent flight attendants not affected by the challenged TWA policy and flight attendants hired since TWA's termination of respondents' employment. Petitioner objected to the proposed settlement on two grounds: first, that the District Court lacked jurisdictio to approve equitable relief for the time-barred respondents (designated by the District Court as "Subclass B"); second, that reinstatement of respondents with full retroactive "competitive" seniority would violate the collective-bargaining agreement between petitioner's members and TWA. The District Court permitted petitioner's intervention but rejected its objections, approving the settlement in all respects. The Court of Appeals affirmed. Air Line Stewards and Stewardesses Assn., Local 550 v. Trans World Airlines, Inc., 630 F.2d 1164 (CA7 1980). Petitioner then filed a petition for certiorari, raising essentially the same objections to the settlement agreement that it had pressed in the two lower courts. This Court granted the petition and consolidated it with the earlier petition filed by respondents, consideration of which had been deferred. In Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982), we agreed with respondents that the timeliness requirement of Title VII, 42 U.S.C. § 2000e-5(c), was not jurisdictional and thus that the District Court had jurisdiction to approve the settlement even as to members of Subclass B. We also rejected petitioner's second challenge to the settlement agreement, concluding that reinstatement of all respondents with full competitive seniority was a remedy authorized by Title VII and appropriate in the circumstances of the case. 455 U.S., at 398-400, 102 S.Ct., at 1135-1136.

To come, finally, to the aspect of this lengthy litigation giving rise to the issues now before us: Respondents' attorneys petitioned the District Court for an award of attorney's fees against petitioner under § 706(k) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k). The District Court held that "[u]nsuccessful Title VII union intervenors are, like unsuccessful Title VII defendants, consistently held responsible for attorneys' fees," Airline Stewards and Stewardesses Assn., Local 550, TWU, AFL-CIO v. Trans World Airlines, Inc., 640 F.Supp. 861, 867 (ND Ill.1986), and thus awarded respondents a total of $180,915.84 in fees against petitioner-in addition to approximately $1.25 million it had earlier awarded against TWA from the settlement fund. A divided panel of the Court of Appeals affirmed. Zipes v. Trans World Airlines, Inc., 846 F.2d 434 (1988). We granted the union's petition for certiorari, 488 U.S. 1029, 109 S.Ct. 835, 102 L.Ed.2d 968 (1989).

In Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), this Court reaffirmed what has come to be known as the "American Rule." Put simply, "[i]n the United States, the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys' fee from the loser." Id., at 247, 95 S.Ct., at 1616. At issue in this case is one of the congressionally created exceptions to that rule. As part of the Civil Rights Act of 1964, Pub.L. 88-352, Tit. VII, 78 Stat. 253, Congress enacted § 706(k), 42 U.S.C. § 2000e-5(k), which provides that a federal district court "in its discretion, may allow the prevailing party, other than the [EEOC] or the United States, a reasonable attorney's fee." Although the text of the provision does not specify any limits upon the district courts' discretion to allow or disallow fees, in a system of laws discretion is rarely without limits. In the case of § 706(k) and other federal fee-shifting statutes, ^[2] just as in the case of discretion regarding appropriate remedies, we have found limits in "the large objectives" of the relevant Act, Albemarle Paper Co. v. Moody, 422 U.S. 405, 416, 95 S.Ct. 2362, 2371, 45 L.Ed.2d 280 (1975), which embrace certain "equitable considerations," Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 418, 98 S.Ct. 694, 698, 54 L.Ed.2d 648 (1978). Thus, in Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968), we held that under § 20 (b) of the Civil Rights Act of 1964, 42 U.S.C. § 2000a-3(b), a prevailing plaintiff should "ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." We thought this constraint on district court discretion necessary to carry out Congress' intention that individuals injured by racial discrimination act as " 'private attorney[s] general,' vindicating a policy that Congress considered of the highest priority." 390 U.S., at 402, 88 S.Ct., at 966. See also Albemarle Paper Co., supra, 422 U.S., at 415, 95 S.Ct., at 2370 (applying the Newman standard to § 706(k)); Northcross v. Memphis Bd. of Education, 412 U.S. 427, 428, 93 S.Ct. 2201, 2202, 37 L.Ed.2d 48 (1973) (applying the Newman standard to § 718 of the Emergency School Aid, 20 U.S.C. § 1617).

Similarly, in Christiansburg Garment, supra, we held that even though the term "prevailing party" in § 706(k) does not distinguish between plaintiffs and defendants, the principle of Newman would not be applied to a prevailing defendant. Unlike the Title VII plaintiff, we reasoned, the Title VII defendant is not " 'the chosen instrument of Congress,' " 434 U.S., at 418, 98 S.Ct., at 699, quoting Newman, supra, 390 U.S., at 402, 88 S.Ct., at 966; and unlike the losing defendant, the losing plaintiff is not "a violator of federal law," 434 U.S., at 418, 98 S.Ct., at 699. We also rejected, however, the losing plaintiff's argument that sound exercise of § 706(k) discretion would remand the prevailing defendant to the American Rule, providing attorney's fees only if the plaintiff's suit was brought in bad faith. Such an unequal disposition, we thought, "giving the private plaintiff substantial incentives to sue, while foreclosing to the defendant the possibility of recovering his expenses in resisting even a groundless action unless he can show that it was brought in bad faith," would so "distort" the "fair adversary process" that Congress could not lightly be assumed to have intended it. Id., at 419, 98 S.Ct., at 699. We thus concluded that the prevailing defendant could be awarded fees under § 706(k) against the plaintiff whose suit was brought in good faith, but only "upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation," id., at 421, 98 S.Ct., at 700.

The dissent contends that construing § 706(k) in such fashion as to allow competing rights and equities to be taken into account "ignore[s] its express language," post, at 771, in two ways: first, because "the only party mentioned in § 706(k) is 'the prevailing party,' " and thus, "when a district court decides whether to award fees, it must be guided first and foremost by the interests of the prevailing party," ibid. This seems to us something less than an "express language" argument-and also a non sequitur. To say that only the prevailing party gets fees is not to say that the prevailing party's interests are always first and foremost in determining whethe he gets them. In any case, as discussed above, we decided long ago that in some circumstances the interests of the losing party trump those of the prevailing party under § 706(k), so that the latter cannot obtain fees. See Christiansburg Garment, supra. The second respect in which the dissent contends we ignore the "express language" of the statute is that we fail to give effect to its "hostility to categorical rules for the award of attorney's fees," post, at 771, supposedly enshrined in the language that the court "in its discretion, may allow" (emphasis added) a reasonable attorney's fee. We have already described how the law in general, and the law applied to § 706(k) in particular, does not interpret a grant of discretion to eliminate all "categorical rules." ^[3] In Newman, supra, 390 U.S., at 402, 88 S.Ct., at 966, we held that in absence of special circumstances a district court not merely "may" but must award fees to the prevailing plaintiff; and in Christiansburg Garment, supra, 434 U.S., at 421, 98 S.Ct., at 700, we held that unless the plaintiff's action is frivolous a district court cannot award fees to the prevailing Title VII defendant. The prescriptions in those cases are no less "categorical" than the rule we set forth today.

Proceeding, then, to interpret the statute in light of the competing equities that Congress normally takes into account, we conclude that district courts should similarly award Title VII attorney's fees against losing intervenors only where the intervenors' action was frivolous, unreasonable, or without foundation. It is of course true that the central purpose of § 706(k) is to vindicate the national policy against wrongful discrimination by encouraging victims to make the wrongdoers pay at law-assuring that the incentive to such suits will not be reduced by the prospect of attorney's fees that consume the recovery. See Newman, supra, 390 U.S., at 401-402, 88 S.Ct., at 965-966. Assessing fees against blameless intervenors, however, is not essential to that purpose. In every lawsuit in which there is a prevailing Title VII plaintiff there will also be a losing defendant who has committed a legal wrong. That defendant will, under Newman, be liable for all of the fees expended by the plaintiff in litigating the claim against him, and that liability alone creates a substantial added incentive for victims of Title VII violations to sue. In the present case, for example, TWA paid over $1.25 million in fees to respondents' attorneys. Respondents argue that this incentive will be reduced by the potential presence of intervenors whose claims the plaintiff must litigate without prospect of fee compensation. It is not clear to us that that consequence will follow. Our decision in Martin v. Wilks, 490 U.S. 755, 762-763, 109 S.Ct. 2180, 2184-2185, 104 L.Ed.2d 835 (1989), establishes that a party affected by the decree in a Title VII case need not intervene but may attack the decree collaterally-in which suit the original Title VII plaintiff defending the decree would have no basis for claiming attorney's fees. Thus, even if we held that fees could routinely be recovered against losing intervenors, Title VII plaintiffs would still face the prospect of litigation without compensation for attorney's fees before the fruits of their victory can be secure.

But even if the inability generally to recover fees against intervenors did create some marginal disincentive against Title VII suits, we w uld still have to weigh that against other considerations, as we did in Christiansburg Garment. Foremost among these is the fact that, in contrast to losing Title VII defendants who are held presumptively liable for attorney's fees, losing intervenors like petitioner have not been found to have violated anyone's civil rights. See Christiansburg Garment, 434 U.S., at 418, 98 S.Ct., at 698. In this case, for example, petitioner became a party to the lawsuit not because it bore any responsibility for the practice alleged to have violated Title VII, but because it sought to protect the bargained-for seniority rights of its employees. Awarding attorney's fees against such an intervenor would further neither the general policy that wrongdoers make whole those whom they have injured nor Title VII's aim of deterring employers from engaging in discriminatory practices.

Our cases have emphasized the crucial connection between liability for violation of federal law and liability for attorney's fees under federal fee-shifting statutes. In Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985), the plaintiffs had brought suit under 42 U.S.C. § 1983 against police officers in their individual capacities, alleging that the officers had violated their constitutional rights. After settling with the officers, they sought attorney's fees from the officers' employer, the Commonwealth of Kentucky, under 42 U.S.C. § 1988. In rejecting that claim, we stated:

"Section 1988 does not in so many words define the parties who must bear these costs. Nonetheless, it is clear that the logical place to look for recovery of fees is to the losing party-the party legally responsible for relief on the merits. That is the party who must pay the costs of litigation . . . and it is clearly the party who should also bear fee liability under § 1988." 473 U.S., at 164, 105 S.Ct., at 3104.

See also id., at 165, 105 S.Ct., at 3104 ("[L]iability on the merits and responsibility for fees go hand in hand"); id., at 168, 105 S.Ct., at 3106 ("[F]ee liability runs with merits liability"); ibid. ("Section 1988 simply does not create fee liability where merits liability is nonexistent"); id., at 171, 105 S.Ct., at 3108 ("[F]ee and merits liability run together"). Cf. Supreme Court of Virginia v. Consumers Union of United States, Inc., 446 U.S. 719, 738, 100 S.Ct. 1967, 1977, 64 L.Ed.2d 641 (1980) (holding that § 1988 fees were not recoverable against defendants immune from merits liability). We have also distinguished between wrongdoers and the blameless in the related area of constraints upon district courts' discretion to fashion Title VII remedies. See, e.g., Ford Motor Co. v. EEOC, 458 U.S. 219, 239-240, 102 S.Ct. 3057, 3069-3070, 73 L.Ed.2d 721 (1982); General Building Contractors Assn., Inc. v. Pennsylvania, 458 U.S. 375, 399-400, 102 S.Ct. 3141, 3154-3155, 73 L.Ed.2d 835 (1982).

While innocent intervenors raising non-Title VII claims are not, like Title VII plaintiffs, "the chosen instrument[s] of Congress," Christiansburg Garment, supra, 434 U.S., at 418, 98 S.Ct., at 698, neither are they disfavored participants in Title VII proceedings. ^[4] An intervenor of the sort before us here is particularly welcome, since we have stressed the necessity of protecting, in Title VII litigation, "the legitimate expectations of . . . employees innocent of any wrongdoing," Teamsters v. United States, 431 U.S. 324, 372, 97 S.Ct. 1843, 1873, 52 L.Ed.2d 396 (1977). Even less with regard to an innocent intervenor than with regard to an allegedly lawbreaking defendant would Congress have wished to "distort" the adversary process, see Christiansburg Garment, supra, 434 U.S., at 419, 98 S.Ct., at 699, by giving the plaintiff a disproportionate advantage with regard to fee entitlement. Moreover, establishing such one-way fee liability against intervenors would foster piecemeal litigation of complex civil rights con roversies-a result that is strongly disfavored. See Martin v. Wilks, supra, 490 U.S., at 768, 109 S.Ct., at 2183. Adopting the regime proposed by respondents-that those who intervene in a Title VII suit are presumptively liable for fees, while those who take the alternative course of becoming plaintiffs in independent lawsuits attacking provisions of the decree are presumptively shielded from liability-would encourage interested parties to await the entry of judgment and collaterally attack remedial schemes. This would serve the interests of no one: not plaintiffs, not defendants, not intervenors.

Intervention that is in good faith is by definition not a means of prolonging litigation, but rather of protecting legal rights-ranging from contract-based rights, see, e.g., Richardson v. Alaska Airlines, Inc., 750 F.2d 763 (CA9 1984) (collective-bargaining agreement), to statutory rights, see, e.g., Prate v. Freedman, 583 F.2d 42 (CA2 1978) (Title VII), to constitutional rights, see, e.g., Reeves v. Harrell, 791 F.2d 1481 (CA11 1986) (Equal Protection Clause); Grano v. Barry, 251 U.S.App.D.C. 289, 783 F.2d 1104 (1986) (Takings Clause)-which are entitled to no less respect than the rights asserted by plaintiffs in the subject suit. In this case petitioner intervened to assert the collectively bargained contract rights of its incumbent employees, rights that neither respondents nor TWA had any interest in protecting in their settlement agreement. Just this Term we recognized that competitive seniority rights-the specific interests asserted by petitioner-are among the most important ingredients in flight attendants' collective-bargaining agreements. See Trans World Airlines, Inc. v. Flight Attendants, 489 U.S. 426, 428-430, 109 S.Ct. 1225, 1228, 103 L.Ed.2d 456 (1989) (slip op. 1-2). While a labor union's good-faith advocacy of its members' vital interests was not the specific type of conduct § 706(k) was intended to encourage, it is certainly not conduct that the statute aimed to deter.

Of course, an intervenor may sometimes raise an argument that brings into question not merely the appropriateness of the remedy but the plaintiff's very entitlement to relief. Here, for example, petitioner advanced one argument that would have prevented the District Court's approval of any relief for Subclass B respondents. But that an intervenor can advance the same argument as a defendant does not mean that the two must be treated alike for purposes of fee assessments. The central fact remains that petitioner litigated (and lost) not to avoid liability for violation of the law but to prevent TWA's bargaining away of its members' seniority rights in order to settle with respondents. It was entitled, like any litigant, to pursue that legitimate end through arguments that go to the merits no less than through arguments that go only to the scope of the relief. It would hardly serve the congressional policy in favor of "vigorous" adversary proceedings, Christiansburg Garment, 434 U.S., at 419, 98 S.Ct., at 699, to require intervenors to disguise or avoid their strongest arguments in order to escape liability for attorney's fees. Moreover, it is often quite difficult to separate arguments directed to the appropriate remedy from arguments directed to the existence or extent of past violations, so that making fees turn upon that distinction would violate our admonition that "a request for attorney's fees should not result in a second major litigation." Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct.1933, 1941, 76 L.Ed.2d 40 (1983).

* * *

Because the courts below incorrectly presumed that petitioner was liable for attorney's fees to respondents, and accordingly made no inquiry as to whether petitioner's intervention was frivolous, unreasonable, or without foundation, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice STEVENS took no part in the consideration or decision of this case.

Notes

1. "Competitive status" seniority is used "to allocate entitlements to scarce benefits among competing employees," Franks v. Bowman Transportation Co., 424 U.S. 747, 766, 96 S.Ct. 1251, 1265, 47 L.Ed.2d 444 (1976), while "benefit" seniority is used "to compute noncompetitive benefits earned under the contract of employment," ibid.
2. The language of § 706(k) is substantially the same as § 204(b) of the Civil Rights Act of 1964, 42 U.S.C. § 2000a-3(b), which we interpreted in Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968), and 42 U.S.C. § 1988, which we interpreted in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). We have stated in the past that fee-shifting statutes' similar language is "a strong indication" that they are to be interpreted alike. Northcross v. Memphis Bd. of Education, 412 U.S. 427, 428, 93 S.Ct. 2201, 2202, 37 L.Ed.2d 48 (1973). See also Hanrahan v. Hampton, 446 U.S. 754, 758, n. 4, 100 S.Ct. 1987, 1989, n. 4, 64 L.Ed.2d 670 (1980) (noting that § 1988 was patterned on § 204(b) and § 706(k)); Hensley, supra, 461 U.S., at 433, n. 7, 103 S.Ct., at 1939, n. 7 (noting that the standards set forth in the opinion apply to all fee-shifting statutes with "prevailing party" language).
3. The dissent, post, at 772, n. 1, distorts our holding in United States v. Monsanto, 491 U.S. 600, 613, 109 S.Ct. 2657, 2665, 105 L.Ed.2d 512 (1989), by describing it as "conclud[ing] that statutory construction that transforms the word 'may' into the words 'may not' . . . impermissibly frustrates legislative intent." What we plainly said there was that "may" cannot be transformed into "may not" in such fashion as to frustrate the legislative intent.
4. The dissent repeatedly implies that intervenors are no more than intermeddlers who get in the way of tidy settlement agreements between Title VII plaintiffs and wrongdoers. See post, at 770, 774, 775, 777, 778, 779. That characterization might be understandable if our opinion addressed intervenors who are not themselves affected by the outcome of the lawsuit; but it does not. See infra, at 765. What is at issue here is only the liability of intervenors who enter lawsuits to defend their own constitutional or statutory rights. It seems to us that the dissent dismisses out of hand the legitimate claims of these people, not because they are intermeddlers, but rather because the dissenters have established a judge-made ranking of rights, authorizing Title VII claims to prevail over all others. That is the essential difference between us.

Whereas we think that the fee-award provision is subject to "the competing equities that Congress normally takes into account," supra, at 761, the dissent believes that we "must be guided first and foremost by the interests of the prevailing party" (so long as that is the Title VII plaintiff and not the defendant, see Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978)), post, at 771, and that the only criterion of our decision is that it "respect the objectives of Title VII," post, at 772. Those objectives must of course be respected. But nothing in the statute gives them hegemony over all the other rights and equities that exist in the world. Here as elsewhere, the judicial role is to reconcile competing rights that Congress has established and competing interests that it normally takes into account. See, e.g., Ford Motor Co. v. EEOC, 458 U.S. 219, 239-240, 102 S.Ct. 3057, 3069-3070, 73 L.Ed.2d 721 (1982). When Congress wishes Title VII rights to sweep away all others it will say so.