On petition for writ of certiorari to the United States Court of
Appeals for the Third Circuit.
The petition for a writ of certiorari is denied.
Mr. Justice WHITE, with whom Mr. Justice STEWART and Mr. Justice
REHNQUIST join, dissenting.
The Court's action today lets stand the ruling by a panel of the
Third Circuit Court of Appeals that attorneys' fees are awardable
to intervenors in union election challenges processed under Title
IV of the Labor Management Reporting and Disclosure Act (LMRDA), 29
U.S.C. 481 et seq. (1970). The issues presented in this case are of
serious importance to the proper enforcement of the LMRDA, and also
to the prosecution generally of private claims that benefit a broad
class of persons.
The decision below rested on two necessary foundations: that the
scheme of Title IV of the LMRDA did not foreclose the awarding of
attorneys' fees to intervenors, and that the "common benefit"
exception to the American rule against awarding attorneys' fees
could fairly be applied to a case of intervention under Title IV
such as occurred here.
In Trbovich v. United Mine Workers,
404 U.S. 528, 30 L. Ed.
2d 686 (1972), this Court held that intervention by an individual
union member whose initial complaint commenced the challenge to the
election was not inimical to the LMRDA. Title IV anticipates that
objections to the conduct of union elections be initiated by union
members filing a complaint with the Secretary of Labor after
exhausting union remedies. Thereupon, however, it is the exclusive
province of the Secretary to commence a civil action in federal
district court. 29 U.S.C. 482(b). Trbovich held that the union
member who initiated the challenge might still intervene in the
federal suit, "so long as that intervention is limited to the
claims of illegality presented
Page 435 U.S.
977 , 978
by the Secretary's complaint." Trbovich, supra, 404 U.S., at
537. This conclusion represented a very careful balance between
Title IV's commitment of enforcement authority to the Secretary's
sole discre ion, and a recognition that the union member who
originally raised the complaint might wish to see his claims
pressed in some manner different from the Secretary.
The opinion below threatens to upset that delicate compromise.
Intervention by union members in support of the Secretary's grounds
of complaint was upheld in Trbovich only because it would make the
union liable "to relatively little additional burden," and would
"not subject the union to burdensome multiple litigation, nor will
it compel the union to respond to a new and potentially groundless
suit." Trbovich, supra, 404 U.S., at 536. Once attorneys' fees are
assessable against a union on behalf of intervenors, however, the
union has indeed become liable to an "additional burden" that could
be quite costly. And the adjudication of whether an intervenor has
contributed significantly to the common benefit of all union
members could well involve the "burdensome multiple litigation"
that the restrictions on intervention imposed by Trbovich were
intended to avoid.
Although not controlling, the Secretary of Labor's views should
also be considered in any matter concerning the proper enforcement
of the Act he is to administer. It is significant, therefore, that
the Secretary has in this case broken his silence on the attorneys'
fees question for the first time. It is the position of the
Secretary that the awarding of attorneys' fees to intervenors
"significantly impedes the enforcement of Title IV." *
The other holding below, that intervention in such a case as
Page 435 U.S.
977 , 979
this contributes to the "common benefit" of the group to be
assessed the attorneys' fees, raises problems of its own. A
judge-made exception to the traditional American rule against
awarding attorneys' fees, the " common benefit" theory is premised
on a court's equity power to allocate a portion of a fund won for a
class of persons through the efforts of a single person to
compensate that single person. See Hall v. Cole,
412 U.S. 1, 5 n. 7 (1973).
Subsequent elaboration extended the early theory to cases where no
single class of persons was suing, Sprague v. Ticonic National
Bank,
307 U.S.
161 (1939), and to cases involving a common benefit other than
a tangible pool of assets. Mills v. Electric Auto-Lite Co.,
396 U.S. 375
(1970); Hall v. Cole, supra.
The contribution made by an individual union member, however,
who intervenes in an action brought by the Secretary of Labor, can
only with great difficulty be viewed as the creation of a common
benefit. The Secretary has already investigated the case, and is
already conducting the suit. And the rationale permitting
intervention was not to duplicate the efforts of the Secretary.
Intervention was held permissible in Trbovich in order to protect a
union member's interest, or his choice of how to represent that
interest, precisely to the extent that the individual's interest
diverged from the Secretary's. The Secretary is the champion of the
"vital public interest in assuring free and democratic union
elections that transcends the narrower interest of the complaining
union member." Trbovich, supra, 404 U.S. at 539, citing Wirtz v.
Local 153, Glass Bottle Blowers Assn.,
389 U.S.
463, 475 (1968). Hence, the rationale that provides for the
right to intervene in the first place substantially undercuts the
intervenor's claim to be creating a significant common benefit not
already provided by the Secretary.
The Third Circuit panel, in adopting a common-benefit theory
correctly observed that our opinion in Alyeska Pipeline Co. v.
Wilderness Society,
421 U.S. 240 (1975),
recognized the continuing vitality of that theory. More
questionable, however, is whether the court below took proper
account of
Page 435 U.S.
977 , 980
Alyeska 's explanation of the antedating opinions that applied a
common- benefit theory:
"In this Court's common-fund and common-benefit decisions, the
classes of beneficiaries were small in number and easily
identifiable . The benefits could be traced with some accuracy, and
there was reason for confidence that the costs should indeed be
shifted with some exactitude to those benefiting." Alyeska, supra,
421 U.S., at 265 n. 39.
The intervenor's contribution admittedly need not be the
provision of a monetary sum. However, the lower court's reasoning
that a new election in a single district benefited the entire
membership of the United Steelworkers of America in such an
identifiable and proportionate way so as to justify burdening the
entire membership with the intervenor's attorneys' fees represents
logic squarely at issue with Alyeska's construction of the
common-benefit theory.
Both holdings of the lower court appear to conflict with this
Court's decisions. The awarding of attorneys' fees to intervenors
in Title IV proceedings threatens seriously to obstruct the
administration of the LMRDA. The common-benefit exception has in
this case been stretched beyond the bounds of its creative
rationale, both as to whether a benefit has been shown to exist at
all, given the Secretary's dominant enforcement role, and as to
whether it is fair to tax the entire union with the costs of
providing what benefit there might be. I would grant certiorari to
resolve these important issues affecting the administration of the
LMRDA and the conduct of all common-benefit litigation.
Footnotes
[
Footnote *] Memorandum on Behalf of
the Secretary of Labor, at 2. The Secretary believes that the
availability of attorneys' fees will encourage excessive
intervention since, no matter how great or small the assistance an
individual might have provided the Secretary, it is only by
intervening that he can hope to receive compensation.
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