ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
Seitz, Chief Judge, Rosenn, Senior Circuit Judge, and Garth, Circuit Judge.
In this appeal the Commonwealth of Pennsylvania ("Commonwealth") seeks a determination that the district court abused its discretion by not awarding to the Commonwealth, attorney's fees and costs incurred in defense of a section 1983 action instituted by appellee P. Mastrippolito and Sons, Inc. ("Mastrippolito"). We hold that failing to grant attorney's fees was not an abuse of discretion, whereas failure to grant costs was.
Mastrippolito's section 1983 action, filed August 10, 1979, alleged violations of rights of due process and equal protection by Commonwealth agents who entered Mastrippolito's business premises on several occasions for inspections pursuant to Pennsylvania's Seasonal Farm Labor Act, 43 P.S. 1301.101 et seq. Mastrippolito, a Chester County mushroom grower, maintained that it was not subject to the Seasonal Farm Labor Act and that it had requested and was owed a hearing as to whether it was covered.
On September 14, 1979 the Commonwealth filed a motion to dismiss Mastrippolito's federal complaint, arguing that the court lacked jurisdiction under 42 U.S.C. § 1983, that the Eleventh Amendment barred claims for damages against state officials, and that the complaint did not implicate a constitutionally protected property or liberty interest of the plaintiffs. The Commonwealth also argued that Mastrippolito had access to the Pennsylvania courts under 43 P.S. § 1301.601 for review of the Pennsylvania Department of Labor and Industry's determination that it was covered by the Act.
On April 16, 1980, Judge Newcomer, on Eleventh Amendment grounds, dismissed the action against defendant Secretary of Labor and Industry, but deferred ruling on the rest of the Commonwealth's motion "pending further development of the record." Following the Commonwealth's answer to the complaint, and further discovery, the Commonwealth filed a declaratory action in Pennsylvania Commonwealth Court to determine whether Mastrippolito was covered by the Act, and on June 9, 1980 filed a motion to stay the federal action on Pullman grounds.*fn1 On August 29, 1980 the Commonwealth Court rejected Mastrippolito's contention that the housing provided for farm workers was not covered by the Act if it consisted of detached dwelling units inhabited by fewer than four unrelated persons, but found that the question of whether Mastrippolito's workers were "seasonal" within the meaning of the Act could not be resolved without trial.
In November of 1980 the Commonwealth moved for summary judgment as to the remaining defendants in the federal action, on the same grounds on which it had previously moved to dismiss. On January 27, 1981 the district court ordered Mastrippolito to answer the Commonwealth's interrogatories, which had been served on November 17, 1980. Mastrippolito did not answer. On March 4, 1981, Judge Newcomer granted the Commonwealth's motion for summary judgment, on the ground that Mastrippolito had failed to establish that it had been deprived of rights guaranteed by the Constitution and laws of the United States. This holding was based in part on certain facts set forth in the Commonwealth's affidavits, which facts were taken as not in dispute after Mastrippolito failed to respond to the Commonwealth's motion.
Subsequently, the Commonwealth filed a motion for attorney's fees and costs. Mastrippolito did respond to this motion. On April 28, 1981, Judge Newcomer denied the Commonwealth's motion on the ground that "plaintiff's complaint was not clearly frivolous, vexatious, or brought for harassment purposes." The Commonwealth appealed this April 28, 1981 order denying the Commonwealth both attorney's fees and costs.
The Commonwealth seeks attorney's fees pursuant to the Civil Rights Attorney's Fees Award Act of 1976, 42 U.S.C. § 1988, which provides in pertinent part:
In any action or proceedings to enforce a provision of section 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.
In United States Steel Corp. v. United States, 519 F.2d 359 (3d Cir. 1975), this court held that the district court, which had denied the defendant a fee award, had not abused its discretion. The district court in denying attorney's fees had determined that the plaintiff's action was not "unfounded, meritless, frivolous, or vexatiously brought." 519 F.2d at 363. The proposition that attorney's fees should be denied to a prevailing defendant unless the plaintiff's complaint was unfounded, meritless, frivolous, or vexatiously brought, was approved by the Supreme Court in ...