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Protecting citizens' rights in the courts
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  DONALD BLACK,
Plaintiff-Appellee/Appellant, v. Nos. 90-6219 90-6278 TEAMSTERS LOCAL 519 et al.,
REPLY BRIEF OF DONALD BLACK IN NO. 90-6278 In his opening brief, Black argued that the district court denied fees based on an incorrect reading of this Court's decision in Shimman v. Operating Engineers Local 18, 744 F.2d 1226 (6th Cir. 1984). He pointed out that the district court had erroneously read Shimman as precluding a fee award whenever the plaintiff receives any damages, on the theory that such an award necessarily makes the plaintiff's benefit from the suit disproportionate to the benefits that other members of the union receive, and that fees should not be awarded when there is such a disproportionate benefit. In disputing this legal conclusion, Black argued that, because of the law of standing, the individual plaintiff almost always receives a disproportionate benefit, Br. at 43-44, and that neither this Court, nor other courts that have considered this issue, have endorsed the district court's theory that damage awards bar recovery of attorney fees. Id. at 40-42. Black also argued that routine denial of fees in cases involving even relatively small damages awards would effectively preclude union members from obtaining counsel to vindicate the Congressional policy of enforcing union democracy protections through individual lawsuits. Id. at 45-46. In conclusion, he argued, although an award of punitive or other damages may be so large as to make an award of attorney fees inappropriate, the mere fact that damages are awarded does not alone warrant denial of fees. Put another way, his argument is that Shimman simply gives a district court discretion to deny or limit the amount of fees when the damages awarded to the individual plaintiff are so large that an award of fees is not needed to serve the objectives identified in Hall v. Cole, 412 U.S. 1 (1973). This brief responds to the arguments set forth by the union defendants in their opposition to Black's appeal from the denial of an award of attorney fees. 1. The first half of the unions' attorney fees argument, Br. at 21-25, is devoted to establishing the proposition that the denial of fees should be reviewed on an abuse of discretion standard. But they implicitly concede that, if Black's analysis of the decision below is correct -- i.e., that the denial of fees is based on an erroneous legal principle -- then this Court's analysis of that legal principle, which must of course be conducted de novo, would control the outcome of the appeal. See, e.g., Cooter & Gell v. Hartmarx Corp., 110 S. Ct. 2447, 2461 (1990) ("A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or a clearly erroneous assessment of the evidence"). Thus, the first question is what legal principle the district court applied in denying Black his fees. The lower court's reasoning, both as recited in its short opinion, at 3-4, and as recounted in the unions' brief, at 22, rests almost entirely on the proposition that, because Black was awarded damages rather than equitable relief, his benefit was disproportionate to that of the other members and any other benefits were necessarily incidental. The fact that the district court ignored Black's evidence that the award in his favor had lessened the chilling effect of his discipline, thus creating a common benefit, further demonstrates that it believed that any benefits derived by other members from an award of damages to an LMRDA plaintiff is necessarily "incidental" and thus not sufficient to warrant an award of attorney fees.(1) Similarly, when the unions come to argue the merits of the fee issue, they begin by announcing that the propriety of the denial of fees is demonstrated by the bold line allegedly drawn by Shimman between cases involving injunctive relief and cases involving damages, id. at 25, and the bulk of their argument against fees in this Court, as in the court below, is based on the view that Shimman and a Fifth Circuit case that also invoked the "proportionate benefit requirement" control this case. Id. at 25-27, 30, 31-32. In light of the controlling nature of that legal question, we next explain the flaw in the lower court's analysis. 2. In objecting to Black's argument that Shimman does not preclude an award of fees whenever damages are awarded, the unions ignore the detailed analysis of Hall v. Cole and of the limiting language in Shimman that is set forth in Black's brief, at 38-40, 41; they also ignore Black's discussion of the later case of Murphy v. Operating Engineers Local 18, 774 F.2d 114 (6th Cir. 1985), where this Court approved an award of attorney fees despite the fact that Murphy had been awarded damages, distinguishing Shimman because of the large punitive damages award in that case. Black Br. at 41-42, quoting 774 F.2d at 127. They further ignore the many cases from other circuits that have awarded fees precisely because the plaintiff succeeded by obtaining an award of damages. Instead, they invoke Guidry v. Operating Engineers Local 406, 882 F.2d 929 (5th Cir. 1989), where the court relied on Shimman in refusing to award attorney fees in favor of plaintiffs who had been awarded $82,808.50 in compensatory damages and $132,000 in punitive damages. But on those facts Guidry may well be consistent with Black's argument here, because the $132,000 punitive damages may have created a sufficient fund to pay the attorney fees incurred there. However, the unions do not argue that the modest award of punitive damages here, even when combined with the compensatory damages that simply restored Black to the status quo ante, comes close to providing a fund from which Black can pay his counsel for the amount of work that had to be performed in this case. The unions derive from Shimman the lesson that "The rationale behind these decisions [such as Hall v. Cole] is that the specific group which enjoys equal benefits from the litigation should bear equally the cost of litigating." Union Br. at 26. Not only does that proposition not appear in Shimman, but it is flatly inconsistent with Hall v. Cole. As we pointed out in our opening brief, the only relief granted in Hall v. Cole was an injunction restoring Cole to office, and so in that case, as in a case like this one involving damages, the plaintiff derived a benefit that was significantly greater than the benefit obtained by the other members of the union. Indeed, the unions make no effort to explain why such a "disproportionate" benefit would not be present in almost every case where a plaintiff sues under the LMRDA; the plaintiff's particular benefit is what motivates him to bring the case, see generally M. Olson, Jr., The Logic of Collective Action (1965), and may be what gives him standing to sue. If the fact that the plaintiff derives a unique benefit from the litigation is sufficient to warrant a denial of fees, then there will be few cases indeed in which attorney fees will be awarded, and that, we submit, will greatly undermine the Congressional objective of fostering union democracy. In that connection, the unions take Black to task for relying on the important role played by attorney fees in encouraging union members to enforce the Congressional policy of union democracy. According to the unions, this argument would be valid only if Congress had chosen to provide expressly for awards of attorney fees in the LMRDA litigation; to the contrary, say the unions, the omission of such a provisions shows that Congress did not believe that fees were necessary to implementation of the statutory scheme. Br. at 24. But this argument not only ignores the portions of Hall v. Cole that our brief cited, at 39-40, discussing legislative history on this point, but also totally ignores the legislative history itself, as well as the views of former Teamster General Counsel Florian Bartosic, also cited in our brief, at 44, to the effect that fees are a necessary incentive for the enforcement of the provisions of Title I. And, because individual suits are the exclusive means of enforcement of Title I rights, the position taken by the defendants in this case will, as Hall v. Cole recognized, effectively preclude the enforcement of Title I: "Without counsel fees the grant of federal jurisdiction is but a gesture for few union members could avail themselves of it." 412 U.S. at 13. The unions also miscite Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970), for the proposition that the availability of attorney fees depends on the precise nature of the relief awarded in the case. Actually, in Mills, an award of fees was held proper at a stage of the litigation when no relief had yet been awarded. Id. at 386-389. Nevertheless, the Court held that the mere determination that the corporate leadership was guilty of violating the laws of corporate democracy (there, section 14(a) of the Securities Exchange Act of 1934), characterized by the Court as an exercise in "corporate therapeutics," id. at 396, was enough to warrant an award of attorney fees. The common benefit that the Court found was similarly unrelated to the particular form of relief in the case. To the contrary, the Court held that cases like Mills' "furnish a benefit to all stockholders by providing an important means of enforcement of the proxy statute." Id. (emphasis added). In Hall v. Cole, the Court rested its opinion directly on this portion of Mills: the successful enforcement of the statutory policy "necessarily rendered a substantial service to the corporation and its shareholders." [quoting Mills, 396 U.S. at 396] . . . The instant case is clearly governed by this aspect of Mills. . . . Viewed in this context, there can be no doubt that, by vindicating his own right of free speech, . . . respondent necessarily rendered a substantial service to the union as an institution and to all of its members. 412 U.S. at 7-8 (emphasis added). So, too, because Black's victory was based on the determination that the unions violated his democratic rights, which in turn necessarily vindicated the rights of all his fellow members, it warrants an award of attorney fees, regardless of the specific relief that was awarded to remedy that violation. 3. The unions mount a spirited attack on the evidence Black submitted of the actual effect that Black's litigation has had in encouraging democracy within the Teamsters Union and in lifting the chilling effect on union members caused by the repression of Black and his fellow demonstrators. The union's complaints about this evidence are easily answered. The union complains, Br. at 28-29, that plaintiff provided affidavits showing the lifting of the chilling effect from only two Tennessee locals in addition to Local 519, although the Joint Council also comprehends Mississippi and northern Alabama. We know of no authority that would require the submission of evidence from members of each and every local within the Joint Council to warrant a conclusion that a common benefit was conferred; indeed, such a requirement would turn every attorney fees application in an LMRDA case into a mammoth evidentiary proceeding that would far exceed the burden of litigating the merits. See Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) ("request for attorney's fees should not result in a second major litigation"). Moreover, although it is true that the incumbent administration was defeated before the jury's verdict in the case and so could not have been caused by the verdict, Union Br. at 28, the fact remains that the incumbents were voted out after the suit was brought. We also note that the unions never take note of an additional benefit conferred here and discussed in Black's opening brief, at 7, 42 -- after suit was brought, the local union dropped all formal discipline against not only Black but also the other demonstrators. The law is clear that when plaintiffs achieve such democratic results without a formal court order, they confer a common benefit that supports an award of attorney fees. E.g., Yablonski v. UMW, 466 F.2d 424, 431 (D.C. Cir. 1972). Most important, however, this evidence was never discussed by the district court, which believed that any effects on other members, vindicating their rights, of the relief granted to plaintiff was necessarily "incidental" and thus not sufficient to warrant an award of attorney fees. Accordingly, even if the Court disagrees with our argument that Black's victory was alone sufficient to warrant a finding of common benefit without any further evidence and that the district court ruling was based on an erroneous view of the law, the denial of fees should not be upheld based on evidence that the district court did not discuss in denying fees. The order denying attorney fees should be reversed, and the case should be remanded with instructions to award plaintiffs' counsel their reasonable fees and costs. Respectfully submitted, Paul Alan Levy Alan B. Morrison Public Citizen Litigation Group
Peter Alliman, Esquire Lee, Alliman & Carson
May 15, 1991 1. The unions rely on the statement in the opinion below that "this" case was not appropriate for an award of fees. Br. at 23. This statement, however, only shows that the district court applied what it understood to be the teachings of Shimman -- that any damages award barred attorney fees -- not that it conducted any inquiry into whether the damages award in this case was so large as to warrant denial of fees. more resources
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