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December 23, 1980

COMMONWEALTH OF PENNSYLVANIA and Raymond Williams et al.

The opinion of the court was delivered by: BECHTLE


On May 29, 1980, this Court entered Post Decree Order # 10, in which various costs directly related to the injunctive aspects of this litigation were assessed against certain named party defendants in specified percentage allocations. This Memorandum Opinion sets forth further reasoning and authority for the issuance of that Order.

 The action presently before this Court is an employment discrimination suit alleging a pattern and practice of racial discrimination. Suit was instituted in 1971 by twelve black plaintiffs on behalf of a class of minority workers who were either involved in or desired admittance to the trade of operating engineers throughout Eastern Pennsylvania and Delaware. The suit was brought against Local 542 of the International Union of Operating Engineers ("Local"); the Joint Apprenticeship Program ("JATC"); a class represented by Glasgow, Inc. ("Glasgow"), which consisted of over approximately 1400 unnamed contractor-employers who received referrals through the Local 542 exclusive hiring hall system; and, four construction trade associations which had represented contractors in contract negotiations with Local 542. *fn1"

 In March, 1972, the Court granted plaintiffs' motion for certification of both plaintiff- and defendant-classes, pursuant to Fed.R.Civ.P. 23(b)(2). The plaintiff-class consisted of:

(a) all minority group members who currently have the skills, when measured by objective standards, of at least a journeyman operating engineer and who work, or may work, within the territorial jurisdiction of defendant Local 542;
(b) all minority group members who are partially skilled, when measured by objective standards, to perform operating engineers work and who work, or may work, within the territorial jurisdiction;

 The defendant-class consisted of:

(a) all contractor associations which are, or may be, parties to a collective bargaining agreement with Local 542, International Union of Operating Engineers; and
(b) all contractor-employers who are subject to collective bargaining agreements with Local 542, International Union of Operating Engineers, and who, pursuant to such agreements, employ or will employ operating engineers referred to them by defendant Local 542.

 After considerable legal turbulence, *fn2" the trial to determine the issue of liability *fn3" commenced in January, 1976, and ended in June, 1977, during which lengthy testimony along with complex statistical evidence was presented by both sides.

 Ultimately, on January 2, 1979, after a period of impoundment, the Court released its liability opinion, 469 F. Supp. 329 (E.D.Pa.1978), in which the Court held that Local 542 and the JATC had engaged in intentional discrimination in violation of Title VII, 42 U.S.C. § 2000e et seq., and 42 U.S.C. §§ 1981, 1985(3) on the theories of discriminatory impact and discriminatory purpose. The Court also held that, under the theory of vicarious responsibility, the class of defendant contractor-employers and the contractor associations were injunctively liable under § 1981 for the discriminatory actions of the Local and the JATC. The Court made no determination as to the issue of damages based on individual liability, if any, of any of the defendants, instead reserving that difficult determination for Stage II of the litigation.

 Finally, on November 7, 1979, the Court released from impoundment its final Judgment and Decree granting the plaintiff-class specific injunctive relief, including integration into the operating engineers workforce through the use of hour and wage percentage goals, training, upgrading and other forms of relief. *fn4" Included were specified legal obligations of the defendants in order to effectuate those injunctive goals over a five-year period. Underlying those various forms of injunctive relief were a variety of costs which were to be borne by "the defendants." See Judgment and Decree at PP 1, 24, 42, 46.

 It is this difficult but necessary allocation of those costs which are directly related to the injunctive aspects of this litigation that formed the subject of Post Decree Order # 10 *fn5" and this Opinion.

 I. Types of Costs

 The Judgment and Decree addresses several features of injunctive relief which naturally and necessarily warrant the creation and imposition of various costs. Those costs include: (1) the cost of the preparation and mailing of notices of the Judgment and Decree to plaintiff-class members (P 46); (2) the cost of the preparation and mailing of notices of the Judgment and Decree to defendant-class members (P 46); (3) costs incurred by the Master, including his fees, expenses and costs; *fn6" and, (4) any other costs which include, but are not limited to, costs incurred by the Advisory and Reporting Committee (PP 42, 43), costs incurred in publicizing the Judgment and Decree (P 47) and costs incurred in the development of the retraining and upgrading programs, including special training of the Benjamin Franklin graduates (PP 24, 41, 42).

 Specific items that are not included as costs directly related to the injunctive aspects of this litigation include any assessment of damages which is specially reserved for Stage II of this litigation, plaintiffs' counsel fees, any amounts claimed by counsel on account of counsel's services *fn7" and any sums required by the Court to be paid as a direct consequence of any civil or criminal contempt arising under any of the Court's Orders heretofore or hereinafter issued.

 II. Taxation and Allocation of Injunctive Costs Generally

 The major argument advocated by many of the named and unnamed defendants is that, although they have been held injunctively liable, they cannot be assessed costs related to that injunction when the only theory of liability upon which they were held injunctively liable is that of vicarious responsibility for the discriminatory acts of Local 542 and the JATC. Therefore, they argue, the Local and the JATC are the primary responsible or faulting parties and should be assessed the full injunctive costs.

 The initial question is whether under Fed.R.Civ.P. 54(d) a party only held injunctively liable and not liable for damages may nevertheless be assessed costs related to that injunction. Several courts, including the Third Circuit Court of Appeals, have held in the affirmative. See Jones v. Diamond, 594 F.2d 997, 1022-1029 (5th Cir. 1979); Samuel v. University of Pittsburgh, 538 F.2d 991, 999 (3d Cir. 1976); Kyriazi v. Western Electric Company, 465 F. Supp. 1141, 1144-1148 (D.N.J.1979) (concerning Rule 54(d) and Rule 53(c) master's costs).

 This Court concurs with the above courts for the simple reason that fairness demands that a party held responsible for the imposition of an injunction should bear a share of the costs needed to successfully implement that injunction and ensure the fulfillment of the injunctive mandate. A party which is a non-prevailing party in an injunctive action is as much bound by the provisions of Rule 54(d) as a non-prevailing party in a pure damage action. Payment of costs for injunctive relief naturally involves the payment of money, but the purpose of such payment is to implement that relief and does not constitute damages, in the classic sense, flowing to individual prevailing parties from non-prevailing parties in the form of restitution, back-pay, etc.

 The second issue before the Court presents a more difficult analysis; however, the Court finds helpful support in the decisions of several federal courts which have been referred to this Court by Local 542. Those decisions support the proposition that defendants held injunctively liable solely under a theory of vicarious responsibility are nevertheless liable for "a share" of the costs under Rule 54(d).

 Preliminarily, there are several court-created doctrines that must be kept in mind when dealing with the issue of the taxation and allocation of costs under Fed.R.Civ.P. 54(d). Trial courts are vested with the sound discretion to allow and to apportion costs under Rule 54(d). See Farmer v. Arabian American Oil Co., 379 U.S. 227, 232-235, 85 S. Ct. 411, 415-416, 13 L. Ed. 2d 248 (1964); Harman Electric Co. v. First Real Estate Investment Co., 55 F.R.D. 195 (W.D.Pa.1972). Recently, the Third Circuit Court of Appeals ...

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