[17] TATE, Circuit Judge, dissenting:

I respectfully dissent.

The majority reverses and remands for further evidence as to whether the defendant employer Commonwealth — which had previously entered into a consent decree ending its past employment practices discriminating against Puerto Ricans and females and by which Commonwealth had allotted one million dollars to satisfy past discrimination-based claims for back pay and denial of seniority — was indeed the "prevailing party" so that it is entitled to attorney's fees under § 706(k) of Title VII, 42 U.S.C. § 2000e-5(k). Ignoring controlling precedent of the Supreme Court, as well as flouting common sense, the majority accepts Commonwealth's argument, asserted by this post-decree suit, that it might be regarded as "prevailing" — despite the plaintiff Commission's seeming victory achieved by the consent decree — because the Commission did not prevail on all the issues in the case, and because, in Commonwealth's characterization, the latter issues (instead of the ones on which the Commission prevailed) were the central issues and the major thrust of the suit.

For reasons to be elaborated, the district court correctly rejected Commonwealth's arguments and found that, as a matter of law, under the facts shown Commonwealth could not be a Title VII prevailing party entitled to attorney's fees.

I.

The Supreme Court has most recently summarized the principles that apply to the award of attorney's fees to the "prevailing party" in civil rights and Title VII litigation:

"[A] prevailing plaintiff `should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.'" Hensley v. Eckerhart, ___ U.S. ___, ___, 103 S.Ct. 1933, 1937, 76 L.Ed.2d 40 (1983). The "`plaintiffs may be considered "prevailing parties" for attorney's fee purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.'" ___ U.S. at ___, 103 S.Ct. at 1939 (emphasis added). "A prevailing defendant may recover an attorney's fee only where the suit was vexatious, frivolous, or brought to harass or embarrass the defendant." ___ U.S. at ___, 103 S.Ct. at 1937 (emphasis added). With regard to the present litigation, where the plaintiff did not recover on the merits on all the claims advanced by its suit, the Court stated:

Where the plaintiff has failed to prevail on a claim that is distinct in all respects from his successful claims, the hours spent on the unsuccessful claim should be excluded in considering the amount of a reasonable fee. Where a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorney's fee reduced simply because the district court did not adopt each contention raised. But where the plaintiff achieved only limited success, the district court should award only that amount of fees that is reasonable in relation to the results obtain.

___ U.S. at ___, 103 S.Ct. at 1943.

Application of these principles to the present undisputed facts seems to me to be plain. With regard to the Title VII litigation concluded by the consent decree, the plaintiff Commission — whether it be regarded as having won "substantial relief" (as to me is apparent it did) or instead as achieving "only limited success" (as Commonwealth claims) is the prevailing party and entitled to attorney's fees (which thus far it has not sought). The defendant Commonwealth, having lost on the merits on some of the "significant issues" advanced by the Commission, is thus not entitled to recover attorney's fees: the Commission's "suit" against Commonwealth, which did obtain relief ending employment discrimination, was, if only because of the Commission's success, not "vexatious, frivolous, or brought to harass or embarrass" so as to entitle Commonwealth to relief, even if Commonwealth had been the prevailing party in the litigation.

For these simple and easily administered tests, the majority substitutes a post-judgment procedure whereby a court may award a defendant employer attorney's fees, even though the Title VII claimant won substantial relief on the basis of the employer's past discrimination. Deduced from a few scattered decisions of this circuit on quite different issues, the majority finds that, after the conclusion of the litigation affording employment-discrimination relief against the employer, the court may determine that the employer is the prevailing party (and thus entitled to attorney's fees), enunciating for the first time a requirement that, after merit-litigation concludes, the court must weigh the claims advanced by the Commission against the successful results obtained, and then determine whether the rejected claims were frivolous, vexatious, or brought to harass the employer. Pretermitting that in defiance of Supreme Court and circuit jurisprudence (and of common sense) this would permit characterization as a "prevailing party" of a defendant employer against whom substantial relief was ordered, the procedural scheme and issues envisaged fly in the face of the Supreme Court's recent injunction in Hensley v. Eckerhart, supra, that "[a] request for attorney's fees should not result in a second major litigation." ___ U.S. at ___, 103 S.Ct. at 1941.

II.

The majority reaches this curious conclusion on the basis of inapposite decisions by this circuit.

It relies on the test stated in Iranian Students Association v. Edwards, 604 F.2d 352 (5th Cir. 1979) — where the civil rights plaintiffs prevailed —, in which we stated that "[t]he proper focus is whether the plaintiff has been successful on the central issue" or "has acquired the primary relief sought." 604 F.2d at 503 (emphasis added). The majority overlooks that the issue in this inapposite decision was only whether a plaintiff, which had obtained relief after a temporary restraining order, could be regarded as a prevailing party in the absence of a showing of "probable success on the merits" (had the case been fully tried). Id. The court's actual holding was that "a plaintiff can be a `prevailing party' even though the relief he has obtained is only preliminary [citation omitted] or is the result of a consent decree." Id. I am unable to read from the language or holding of this decision any implication that a civil rights defendant, against whom relief has been ordered, can somehow become the prevailing party because the defendant might have lost more than he actually did.

The other decisions relied upon by the majority are similarly inapposite to the present issue. In Taylor v. Sterrett, 640 F.2d 663, 669-70 (5th Cir. 1981), where in reiterating the test, a civil rights plaintiff (who had been awarded attorney's fees for success on the merits) was denied attorney's fees for supplementary proceedings in which he did not prevail on the merits on the central (or any) issue of those supplementary proceedings. 640 F.2d at 670. Likewise in Coen v. Harrison County School Board, 638 F.2d 24 (5th Cir. 1981), where the civil rights plaintiffs had not prevailed on a merit-trial but arguably were a "prevailing party" because the relief sought had been voluntarily granted after suit was filed, the court cited the central issue test, but nevertheless affirmed the denial of all but nominal attorney's fees because the suit was not "a major factor in bringing [success] about. A civil rights plaintiff may not collect attorney's fees for demanding that a state officer do what he would have done in any case." 638 F.2d at 26.

The final decision relied upon by the present majority seems to be contrary to the majority's position in the present case. In Equal Employment Opportunity Commission v. Kimbrough Investment Company, 703 F.2d 98, 103 (5th Cir. 1983), an employer had prevailed on the merits (unlike the present defendant employer), but was nevertheless denied attorney's fees as a "prevailing party" under the strict test applicable to Title VII defendants — that the suit be "unreasonable, frivolous, meritless, or vexatious," 703 F.2d at 103 — even though the employer won on the merits and previous thereto, inter alia, the government had rejected the employer's offer of settlement through adoption of an affirmative action plan, and even though the Commission had used statistical evidence that substantially lacked probative value. The court pointed out that the government's "investigation showed a potential for unlawful discrimination" and that some of the evidence was "probative" of "[discriminatory] hiring practices," and it concluded that therefore "the case was not vexatious." 703 F.2d at 103.

Thus, in Kimbrough, a Title VII defendant who prevailed after trial on the merits was held not entitled to "prevailing party" attorney's fees under the strict test applicable to such defendants, because the government's action could not be held to be vexatious where the government had relied upon probative (but eventually rejected) evidence of discriminatory hiring practices. Here, the Title VII defendant not only did not prevail on the merits, but by the consent decree was ordered to end discriminatory practices and to allot one million dollars for backpay potentially owed because of them. Kimbrough, if applicable, is contrary in rationale and result to the majority's holding.

Conclusion

For the reasons perhaps too lengthily stated, the majority in my opinion ignores the controlling jurisprudence in holding that the Title VII defendant employer, Commonwealth, could conceivably be the prevailing party in this litigation, which was concluded by a consent decree remedying Commonwealth's past discriminatory practices and requiring it to allot one million dollars to pay claims of those aggrieved by its past employment discrimination.

Under these views, it is irrelevant to discuss the issues upon which Commonwealth claims to have prevailed. However, because the majority so lightly glides by them in the context of the entire litigation, I am attaching an overview of the litigation and these issues as an appendix to this opinion, for the benefit of subsequent en banc or Supreme Court review. Were I to reach the merits of Commonwealth's contentions in this regard, I would be inclined to view them as insubstantial in the light of the jurisprudence insofar as attempting to depict Commonwealth as a prevailing party.

I respectfully dissent.

Appendix

Neither the majority nor the dissent felt to be relevant the actual content and significance of the issues upon which Commonwealth claims to have prevailed. In my view, in the context of the litigation, the issues upon which Commonwealth claims to have prevailed are insubstantial. For the benefit of those who might be interested in this aspect of the issues before us, I am setting forth: I. The Context Facts; and II. The Issues Upon Which Commonwealth Claims to Have Prevailed.

I. The Context Facts

In February 1975, an Equal Employment Opportunity Commission charge was filed against the Commonwealth Oil Refining Company alleging that the company was discriminating against women and Puerto Ricans with respect to hiring, promotion and compensation at its Peneulas, Puerto Rico petrochemical complex. An investigation followed, and in February 1977, the Commission issued a decision finding reasonable cause to believe the charge true. Ensuing conciliation efforts, though complicated by Commonwealth's intervening insolvency and Chapter XI reorganization proceeding, ultimately led to a conciliation agreement. A consent decree was entered by the parties and approved by the bankruptcy court in January 1981.

The consent decree provided procedures whereby Commonwealth was to publicize equal employment policies and programs, and for monitoring its compliance therewith. Commonwealth agreed to increase the representation of Puerto Ricans and women in entry level positions in six different operational departments, and to contact local Puerto Rican colleges and referral agencies in its future recruitment efforts. The decree also instituted procedures to identify counsel, and train current female employees for promotion into certain "target area jobs". Commonwealth agreed to budget $50,000 a year to fund these efforts. In addition, the consent decree provided relief for all women and Puerto Ricans that Commonwealth had discriminated against in the past (in hiring or promotion between February 1973 and the date of the decree) that the Commission was able to identify. The decree provided that a Special Master, empowered to award back wages, preferential seniority and order preferential hiring or promotion, would hear all cases that the parties could not resolve through informal conciliation efforts. One million dollars was allotted to satisfy these past claims.

Commonwealth's reorganization efforts proved successful, and in June 1981 a plan of arrangement was approved by the bankruptcy court. Subsequently, the company brought an action in federal district court seeking an allowance of attorney's fees against the Commission pursuant to § 706(k) of Title VII, 42 U.S.C. § 2000e-5(k), alleging that (a) it had prevailed against the Commission in the course of the proceedings initiated by the 1975 charge, and (b) that the Commission had proceeded "in bad faith and with no reasonable belief in the merits of the factual and legal positions it espoused".

Commonwealth sought $525,000 in fees plus the costs and fees incurred in bringing the fee action itself. The Commission filed a motion to dismiss and/or for summary judgment, and Commonwealth filed a cross motion for summary judgment (accompanied by a 40 page affidavit, prepared by a member of Commonwealth's inhouse legal staff, detailing the history of the Title VII controversy, and appending several hundred pages of documentary exhibits). The district court concluded that no genuine issues of material fact existed, Fed.R.Civ.P. 56(c), denied Commonwealth's motion, and granted that of the Commission. This appeal followed.

On appeal, Commonwealth asserts that it prevailed against the Commission on claims either frivolous or undertaken in bad faith, and is therefore entitled to an award of attorney's fees pursuant to 706(k) of Title VII.

II. The Issues Upon Which Commonwealth Claims to Have Prevailed

Commonwealth's Complaint asserted three separate "claims for relief" in which it purportedly prevailed:

A. The first advanced two theories to conclude that Commonwealth had been the prevailing party under the consent decree: (1) that the decree contained "no remedy or relief for many of the more substantial discriminatory practices [that had been originally] alleged in the [Commission's original charge and subsequent determination]"; and (2) that the decree ultimately entered by the parties afforded less relief than had been offered by Commonwealth to the Commission in earlier conciliation negotiations.

B. The second asserted that Commonwealth had been a prevailing party against the Commission because 77 of the 109 names initially identified as likely victims of past discrimination under the provisions of the consent decree, were ultimately withdrawn.

C. The third asserted that Commonwealth was a prevailing party in its successful effort to defeat (prior to entering the consent decree) the Commission's attempt to evade the effect of Chapter XI's automatic stay provision which barred the Commission from commencing its Title VII suit in district court.

A. and B. Alleged Only — Partial Success of Commission

As noted in the text of the dissent, a Title VII plaintiff may be considered the prevailing party for attorney's fee purposes if he succeeds on "`any significant issue in litigation which achieves some of the benefit . . . sought in bringing the suit.'" Hensley v. Eckerhart, ___ U.S. ___, ___, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). It seems to me to be axiomatic that if the plaintiff is "the" prevailing party and thus entitled to attorney's fees, the defendant cannot also be "the" prevailing party in the same litigation on the same issues and also entitled to attorney's fees against the "other" prevailing party. See Title VII, Section 706(k): "[T]he Court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fees as part of the costs."

Comparing the Commission's initial charge and subsequent determination of discrimination against Puerto Ricans and women in hiring and promotion with the considerable relief afforded to both groups pursuant to the consent decree (a yardstick for measuring success that Commonwealth itself proposes in its complaint), in light of the entire record, the relief achieved by the Commission on the merits (to increase employment of women and Puerto Ricans at the entry level, a $1,000,000 allotment for claimants of past discrimination, and $50,000 a year in programs to recruit and promote members of this group) cannot be considered insignificant, nor could it be concluded that the Commission was not, at the very least, a significant catalytic factor in effecting such relief.[1] While Commonwealth might be said to have been successful in ameliorating its defeats to the Commission, such reduced losses cannot be considered the prevailing success upon which award of attorney's fees may be based.

[1] Although Commonwealth claims that it was willing early in its negotiations with the Commission to voluntarily comply with certain of the Commission's demands, it does not deny that such offers were made in direct response to the Commission's proceedings, nor that the Commission was the precipitating cause of either these early offers or the remedial action to which Commonwealth ultimately consented pursuant to the decree.

Even if the Commission rejected chances of a more advantageous settlement (as Commonwealth asserts) or Commonwealth's negotiation ability did, as it contends, successfully preserve many features of a foreign service employment program (that it considered important and asserts was the subject of attack by the Commission during the parties' conciliation negotiations), interim victories and defeats within the settlement negotiation process are immaterial to the ultimate issue of whether a plaintiff instead of a defendant is the prevailing party under the settlement reached. Settlement efforts refused along the way are "of no moment". Fernandes v. Limmer, 663 F.2d 619, 637 (5th Cir. 1981), cert. denied, ___ U.S. ___, 103 S.Ct. 5, 73 L.Ed.2d 1395 (1982). The consent decree here afforded considerable relief, some of the significant benefit sought by the Commission's suit. As we have long held, a plaintiff need not obtain a judgment or settlement satisfying every claim asserted in order to "prevail". Id. Thus, even if the preservation of Commonwealth's foreign service program (by which bonus incentives were given to non-Puerto Ricans to work in Puerto Rico) was a victory for it and a defeat for the Commission, in the context of the suit as a whole, the defendant could not be a prevailing party.

Likewise meritless is Commonwealth's argument that it "prevailed" because, by entering the settlement, it reduced its potential liability for past discrimination to a fraction of that originally claimed or because 77 of the names initially submitted by the Commission were ultimately withdrawn. In reducing its overall potential liability for past discrimination from an initially claimed $2,800,000 to $1,000,000, Commonwealth achieved neither more or less than does any defendant who agrees by settlement to partially satisfy a plaintiff's claim, and thus avoids the risk of having to satisfy the whole of the plaintiff's original claimed damages following a trial on the merits. Analogously, by successfully opposing certain individual claimants of the group initially proposed by the Commission, Commonwealth has done no more than a defendant who succeeds in having certain party plaintiffs dismissed in a suit ultimately lost on the merits.

Although Commonwealth may have, as it maintains, preserved policies deemed important to its operations, reduced its potential aggregate liability from several million dollars to one million dollars, and reduced the number of claimants initially proposed by the Commission as victims of past hiring discrimination, the incremental lessening of losses that these "victories" represent cannot be equated with a positive receipt of money damages, benefits, or injunctive relief. The civil rights plaintiff here has "lost" only that which it might have gained from the defendant, while the civil rights defendant has only "gained" the opportunity of keeping a part of what it already had. Its victory consisted of losing less than it might have.

The benefits received by the Commission were substantial, not nominal. Thus, even if the defendant settled on terms it regarded as advantageous, the Commission remained as a partially successful civil rights plaintiff, a "prevailing party" under Hensley v. Eckerhart, supra.

C. Commonwealth's Procedural Victory with Regard to Chapter XI Stay

In Hanrahan v. Hampton, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980), the Supreme Court made plain that, to be awarded attorney's fees as a "prevailing party" in civil rights litigation, a party may be so entitled only where he "has established his entitlement to some relief on the merits of his claim." 446 U.S. at 747, 100 S.Ct. at 1989 (emphasis added). Commonwealth's only other purported victory, defeating the Commission's attempt to avoid the automatic stay provision of Chapter XI, is exactly the species of mere interlocutory procedural victory rejected as insufficient to support a fee award in Hanrahan. Accord: Fernandes v. Limmer, supra, 663 F.2d at 637 (rejecting "interim setbacks on interlocutory motions" as immaterial to the determination of which party is the "prevailing" party).