bona fide defense but who might otherwise not be able to defend himself. The amendment provides that the court decides whether he shall have that help." Senator Lausche stated his understanding of the general spirit of allowing attorney's fees which was quoted by the Court in United States v. Gray, supra. Upon roll call vote the amendment of Senator Stennis was defeated.
An amendment subsequently introduced by Senator Ervin would strike from the bill the language allowing the court in its discretion to award to the prevailing party a reasonable attorney's fee as part of the costs. Senator Ervin remarked, "I do not believe that it is good public policy for the Congress to encourage any kind of ambulance chasing. That is exactly what the provision authorizing the taxation of attorneys' fees would do."
In response, Senator Pastore, after stating his understanding of the purpose of the bill,
commented, "[first] of all, it is within the discretion of the court. It is not favoritism toward one party as against the other. When a person realizes that he takes the chance of having attorney's fees assessed against him if he does not prevail, he will deliberate before he brings suit. He will make certain that he is not on frivolous ground."
This amendment was similarly defeated. Thus, section 706(k) of Title VII of the Civil Rights Act of 1964 emerged as an accommodation between two congressional concerns. The first, the inability of low income minorities to bear the financial burden of attorney's fees in vindicating their Civil Rights; and, secondly, the award of attorney fees to those parties who must defend against unreasonable, frivolous, meritless or vexatious actions brought by either private parties or the government.
Our view of the statute is in harmony with Richardson v. Hotel Corporation of America, 332 F. Supp. 519 (E.D. La. 1971), aff'd 468 F.2d 951 (5 Cir. 1972), an action under Title VII by an employee against his employer. The Court denied an award of attorney's fees to the prevailing defendant concluding such was not justified in view of the plaintiff's proceeding in good faith on the advice of competent counsel. Although not determining the full scope of the statutory provision, the Court did find the matter to be discretionary. The Court further noted, "[what] practical purpose such an award would serve in this matter is inscrutable, though it might conceivably serve as precedent in terrorem to discourage other Title VII plaintiffs." 332 F. Supp. at 521. In accord is Paddison v. Fidelity Bank, 60 F.R.D. 695, 699 (E.D. Pa. 1973), a Title VII action where the Court in considering the authorization of attorney fees under section 706(k) of the Civil Rights Act of 1964, observed, "Such an award would normally be made to prevailing defendants only if the case had been unreasonably brought, but prevailing plaintiffs, having established forbidden discrimination, would almost always qualify for such an award." (Emphasis added.) Likewise, an early article
interpreting the statutory provision for awards of attorney's fees noted, "[the] statute's provision for awards of attorney fees to the prevailing 'party' does not mean they should be made to prevailing respondents as liberally as to prevailing claimants. * * * Awards to respondents should be limited to unusual situations, such as defense against clearly fraudulent claims."
The latest effort to amend section 706(k) of the Civil Rights Act of 1964 was by the Senate in the Equal Employment Opportunity Act of 1972, P.L. 92-261, March 24, 1972. The Senate amendment permitted payment of costs and counsel fees to small employers or labor organizations if they prevailed in actions brought against them by the Commission or the United States. An employer or union with 25 or fewer employees or members would have been entitled to up to $5,000, and an employer or labor organization with from 25 to 100 employees or members whose average income from such employment was less than $7,500, would have been entitled to one-half the cost of its defense up to $2,500.
There is no explanation why the Senate receded when the House Bill contained no comparable provisions.
Our consideration of the record in this proceeding, in light of the foregoing, convinces us that the respondents' demand for access was a bona fide effort to seek information and, while substantial controversy surrounded the scope of the information sought, there is nothing to indicate the demand for access was brought to harass, embarrass or abuse either the petitioner or the enforcement process, nor can we say respondents' action was unfounded, meritless, frivolous or vexatiously brought.
An appropriate order shall be entered.
Order of Court
And now, to-wit, this 16th day of September 1974, it is hereby ordered and directed that the motion to compel the payment of attorneys' fees as part of costs shall be and the same is hereby denied. Costs shall be allowed to the petitioner, United States Steel Corporation, and against the respondents, United States of America, Equal Employment Opportunity Commission and Ralph A. Allen, District Director, in accordance with Rule 54(d), Federal Rules of Civil Procedure.