OPINION OF THE COURT
ADAMS, Circuit Judge:
This appeal presents two principal questions. First, is the award of an attorney's fee authorized against the Equal Employment Opportunity Commission (EEOC) in a proceeding under Title VII of the Civil Rights Act of 1964?
On January 30, 1970, Mr. Alvin Bowens, an employee of United States Steel Corp. at the Fairless Works in Morrisville, Pennsylvania, filed a charge with the EEOC alleging racial discrimination in employment. Exercising the investigative procedures available to it under the Civil Rights Act,
Pursuant to the procedure prescribed by the Act, U.S. Steel moved in the district court to set aside the EEOC demand.
Thereafter, on November 30, 1973, U.S. Steel renewed a petition it had filed earlier in the district court for costs and an attorney's fee. The district court, on September 16, 1974, awarded costs to U.S. Steel but denied the attorney's fee.
Under the "American rule," an attorney's fee may not ordinarily be recovered by a prevailing party as a part of its costs.
A statutory provision relating to the discretionary award of counsel fees exists in Section 706(k) of Title VII, Civil Rights Act of 1964. It provides:
U.S. Steel contends that Section 706(k) authorizes, as part of the costs, the grant of an attorney's fee against the EEOC in a proper case. Furthermore, U.S. Steel claims that the district court's denial of an attorney's fee in this case should be reversed because the district court based
The EEOC erects a twofold defense against the imposition of an attorney's fee. First, the EEOC takes the position that a proper statutory analysis, based on the legislative history, would conclude that Congress did not intend to permit an award of an attorney's fee against the EEOC in favor of a private defendant. Further, the EEOC contends, even if the power to make such an award exists, the district court nevertheless did not abuse its discretion here in declining to compel an attorney fee payment.
Only one circuit has squarely addressed the question of statutory authorization for the award of an attorney's fee against the EEOC when it brings an unsuccessful action. The Ninth Circuit considered the matter in Van Hoomissen v. Xerox Corp.
The Sixth Circuit has adverted to the question of imposing counsel fees against the Commission in EEOC v. MacMillan Bloedel Containers, Inc.
The district court in the case at hand reviewed the congressional remarks accompanying passage of Section 706(k), and a variety of proposed amendments thereto. Its study serves to reinforce the conclusion of Van Hoomissen that the legislative history is inconclusive.
Since we are not persuaded that Congress intended discrepant definitions of "costs" to operate within Section 706(k), we are bound to read Section 706(k) consonant with the generally accepted canon of statutory construction that the plain language of a statute controls its interpretation by the courts.
The issue next confronting us thus becomes whether the district court in this case abused its discretion in not awarding
Traditionally, where a fee-shifting determination is committed by statute to a court's discretion, equitable considerations govern.
Certain patterns for the award of an attorney's fee have emerged in Title VII actions. A number of circuits have adopted a general practice of allowing an attorney's fee to prevailing private plaintiffs in discrimination cases brought to vindicate rights under Title VII.
A prevailing defendant seeking an attorney's fee does not appear before the court cloaked in a mantle of public interest. In contrast to the advantage to the public that inheres in a successful attack against discriminatory practices, as in Piggy Park, one cannot say as a general rule that substantial public policies are furthered by a successful defense against a charge of discrimination. Instead, a defendant seeking a counsel fee under Section 706(k) must rely on different equitable considerations. A factor frequently considered in awarding an attorney's fee is the proper conduct of a plaintiff.
When it granted attorney fees against the EEOC in Van Hoomissen, the Ninth Circuit remarked, "The court in allowing attorney's fees was mindful that the appeal by EEOC was vexatious and prosecuted on highly questionable grounds."
Here the district court concluded that the Commission undertook "a bona fide effort to seek information." The indicia associated with the grant of an attorney's fee — vexatiousness, bad faith, abusive conduct, or an attempt to harass or embarrass — were absent. We do not find the district court's formulation of the standard to be erroneous.
Employing traditional notions of equity regarding the grant of a counsel fee, the district court determined that U.S. Steel did not demonstrate its entitlement to such fees. No persuasive reason appears to justify a departure from the usual equities governing counsel fee awards. Indeed, Alyeska Pipeline Service Co. v. Wilderness Society
We therefore conclude that Section 706(k) authorizes a grant of attorney fees against the EEOC as part of costs in a proper case. We are unable to conclude that the district court abused its discretion in deciding not to award an attorney's fee in this case to U.S. Steel. An order therefore will be entered affirming the judgment of the district court.
Since the 1972 amendments to the Civil Rights Act, the procedures utilized in this case are no longer followed. Instead, the manner in which the EEOC conducts its investigations is governed by § 11 of the NLRA, 29 U.S.C. § 161. Equal Employment Opportunity Act of 1972, Pub.L. 92-261, 86 Stat. 103, March 24, 1972, 42 U.S.C. § 2000e-9 (1974).
The Court held that, under Title II, a victorious plaintiff should "ordinarily recover an attorney's fee." Id. The statutory language permitting discretionary attorney fees under Title II and Title VII are substantially identical. Compare 42 U.S.C. § 2000a-3(b), § 2000e-5(k).
In the absence of statutory authority, the Supreme Court has been reluctant to impose an attorney's fee on parties. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). But see, Mills v. Electric Auto-Lite Co., 396 U.S. 375, 391-96, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970).
In Alyeska, the Court particularly noted the possibility of awarding counsel fees "against a party who had acted in bad faith . . . ." 421 U.S. at 245, 95 S.Ct. at 1616. The district court in United States v. Jacksonville Terminal Co., 316 F.Supp. 567 (M.D.Fla.1970), rev'd on other grounds, 451 F.2d 418 (5th Cir. 1971), cert. denied 406 U.S. 906, 92 S.Ct. 1607, 31 L.Ed.2d 815 (1972), purported to use a broader test, but we do not find its reasoning persuasive in light of later cases.