BRIGHT, Circuit Judge.
This appeal presents two principal questions for review: (1) whether the ten-day period for serving motions to alter or amend a judgment, Fed.R.Civ.P. 59(e), applies to a postjudgment motion for an award of attorney's fees; and (2) whether the district court abused its discretion in this case by assessing attorney's fees against a discharged employee who unsuccessfully sought monetary and injunctive relief from his employer for breach of contract, from his union for unfair representation, and from both for religious discrimination. We conclude that a motion for assessment of attorney's fees raises a collateral and independent claim and, accordingly, would not be governed by the ten-day limitation prescribed in Rule 59(e) for motions to alter or amend a judgment. As the claims for fees were timely asserted, we proceed to the second question and conclude that the district court erred in awarding attorney's fees to the employer and erred in part in granting fees to the union.
Following his discharge for unauthorized beer drinking and use of abusive or profane language towards a supervisor, Morris Obin brought this action in federal district court against his employer, Anheuser-Busch, Inc. (the Company), and his local union, District No. 9 of the International Association of Machinists and Aerospace Workers (District No. 9 or the Union). Count I of each complaint
The district court consolidated the complaints for trial. Count I of each action was tried to the district judge, who determined that Obin had failed to establish a prima facie case of religious discrimination against either Anheuser-Busch or District No. 9. Count II was tried simultaneously to a jury, which returned verdicts in favor of the Company and the Union. The district court entered judgment in both actions on December 21, 1979.
On January 2, 1980, District No. 9 moved that the court allow the Union reasonable attorney's fees for its defense of the action. One week later, Anheuser-Busch filed a similar motion seeking recovery of the fees it incurred in defending the suit. Both defendants asserted their right to recovery on the attorney's fees provision of Title VII, 42 U.S.C. § 2000e-5(k) (1976), and the court's inherent power to allow fees in cases brought or maintained in bad faith.
By order of March 4, 1980, as supplemented on April 9, the district court granted both motions. Finding that Obin's claims were frivolous and pursued in bad faith, the court ordered Obin to pay costs and fees of $20,075.89 to the Union and $25,695.65 to the Company. Obin v. District No. 9, International Association of Machinists and Aerospace Workers, 487 F.Supp. 368 (E.D.Mo.1980).
Obin appeals from both the judgment on the merits, alleging error on various evidentiary rulings at trial, and the award of costs and attorney's fees to Anheuser-Busch and District No. 9. Having carefully reviewed the evidentiary rulings in light of the record and the parties' arguments, we see no error or abuse of discretion by the district court in these rulings and, therefore, affirm the judgment on the merits. We focus at length, however, on what the parties concede to be the major issue on appeal: whether the district court properly awarded attorney's fees to either the Company or the Union for defending the Title VII or section 301/unfair representation causes of action. We conclude that the unusual facts and circumstances of this litigation warrant an allowance of attorney's fees, but only to the Union on Obin's Title VII claim. Accordingly, we reverse the award of attorney's fees as assessed by the district court and remand the case for an appropriately reduced allowance of fees to the Union. We affirm on all other issues.
II. Availability of Court-Awarded Attorney's Fees.
In Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), the Supreme Court reaffirmed the traditional "American rule" that the prevailing party in federal litigation may not ordinarily recover attorney's fees in the absence of express statutory authorization.
Accordingly, this court has recognized post-Alyeska that an award of attorney's fees may be proper in an action under section 301 for breach of contract or in a suit for breach of the duty of fair representation, even in the absence of express statutory authorization, if the losing party has acted in bad faith. Cronin v. Sears, Roebuck & Co., 588 F.2d 616 (8th Cir. 1978) (action by employees against employer and union for breach of collective bargaining agreement and duty of fair representation); General Drivers, Helpers and Truck Terminal Employees, Local No. 120 v. Sears, Roebuck & Co., 535 F.2d 1072 (8th Cir. 1976) (action by union to require arbitration of grievance under collective bargaining provision); Richardson v. Communication Workers of America, 530 F.2d 126 (8th Cir.) (action by employee against company, international, and local for wrongful discharge), cert. denied, 429 U.S. 824, 97 S.Ct. 77, 50 L.Ed.2d 86 (1976). See R. Gorman, Basic Text on Labor Law 724 (West 1976).
In a Title VII action, however, a different standard governs the allowance of attorney's fees to a prevailing litigant. Section 706(k) of Title VII of the Civil Rights Act of 1964, as amended, provides:
In Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978), the Supreme Court interpreted this provision to permit an award of attorney's fees to a prevailing defendant only if "a court finds that [the plaintiff's] claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so." Id. at 422, 98 S.Ct. at 701.
"To the extent that abstract words can deal with concrete cases," id. at 421, 98 S.Ct. at 700, the Court attempted to explain this standard by discussing the criteria previously adopted by two courts of appeals for awarding attorney's fees to defendants in Title VII actions. Both the Second and Third Circuits had invoked the terms "frivolous, meritless, or vexatious" to describe suits in which the defendant might recover fees. See Carrion v. Yeshiva University, 535 F.2d 722, 727 (2d Cir. 1976) ("unreasonable, frivolous, meritless or vexatious"); United Steel Corp. v. United States, 519 F.2d 359, 363 (3d Cir. 1975) ("unfounded, meritless, frivolous or vexatiously brought"). In evaluating these criteria, the Supreme Court carefully pointed out
The Court also cautioned at length:
III. The Timeliness of Attorney's Fees Claims.
Before we can address the merits of the district court's award, however, we must determine whether the Company and the Union timely filed their claims for attorney's fees. In light of a recent split among the circuits on the period following entry of judgment on the merits within which such claims must be filed, this court requested supplemental briefs on the question of whether a postjudgment motion for attorney's fees should be treated as a motion to alter or amend a judgment under Rule 59(e) of the Federal Rules of Civil Procedure.
On this issue, Obin advances the First Circuit's position that a motion for attorney's fees under 42 U.S.C. § 1988 must be made within ten days after entry of judgment on the merits of the litigation. White v. New Hampshire Department of Employment Security, 629 F.2d 697, 699-700 (1st Cir. 1980), petition for cert. filed, ___ U.S. ___, 101 S.Ct. 1692, 68 L.Ed.2d 191 (1980).
Anheuser-Busch and District No. 9, on the other hand, argue for the view first adopted by the Fifth Circuit, and later embraced by the Sixth and Seventh Circuits, that attorney's fees should be characterized as an item of costs, which under the provisions of rules 58 and 54(d),
In Knighton v. Watkins, 616 F.2d 795 (5th Cir. 1980), the Fifth Circuit held that an award of attorney's fees under section 1988 should be treated "as part of the costs" taxed after litigation under Rule 54(d) rather than as an element of the judgment on the merits. The court primarily relied on the language of section 1988, which "allow[s] the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." 42 U.S.C. § 1988 (1976) (emphasis added). Because Rule 58 specifically provides that the entry of judgment shall not be delayed for the taxing of costs, and neither Rule 54(d) nor 58 prescribes any period after judgment within which an application for costs must be filed, the Fifth Circuit found no bar to entertaining a fee request filed over two months after the district court entered judgment on the merits.
The First Circuit, however, found this analysis unpersuasive in White v. New Hampshire Department of Employment Security, 629 F.2d 697 (1st Cir. 1980). The court concluded that, despite the statutory language describing attorney's fees "as part of the costs," Congress did not intend to
We agree with the First Circuit that the differences between attorney's fees and those items routinely assessed as costs after entry of judgment on the merits make it unlikely that Congress intended that fees be treated as costs for purposes of Rule 54(d). Moreover, the Supreme Court employed similar reasoning in Roadway Express, Inc. v. Piper, 447 U.S. 752, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980), to hold that the term "costs" in 28 U.S.C. § 1927 does not authorize the assessment of attorney's fees against counsel who unreasonably and vexatiously multiplies the proceedings in any case. Section 1927, the Court determined, must be read in conjunction with 28 U.S.C. § 1920, which does not enumerate attorney's fees among the "costs" that ordinarily may be taxed against a losing party under Rule 54(d). Like the Supreme Court in Roadway Express, the First Circuit in White regarded the items detailed in 28 U.S.C. § 1920 as dispositive of whether attorney's fees could be recovered as "costs" under Rule 54(d).
Nevertheless, our rejection of attorney's fees as costs ordinarily taxable under Rule 54(d) does not require us to accept the White court's characterization of attorney's fees as integral to the judgment on the merits and thus subject to the ten-day limitation of Rule 59(e) for serving motions to alter or amend a judgment. Just as an award of attorney's fees differs in nature from the assessment of costs, it also differs from a judgment on the merits of the action. As the Seventh Circuit recently recognized in Terket v. Lund, 623 F.2d 29 (7th Cir. 1980), a fee determination
Furthermore, an award of fees differs in effect from a judgment on the merits. As the Fifth Circuit stated in Knighton,
The First Circuit dismissed this argument in White as "beg[ging] the question to be decided." White v. New Hampshire Department of Employment Security, supra, 629 F.2d at 702 n.8. To the extent that a comparison of a fee determination and a judgment on the merits reveals differences in their respective characteristics or effect, however, the comparison may also suggest differences in the manner that claims for attorney's fees and the merits should be treated. In a Title VII action, for example, a plaintiff's ultimate failure to prevail on the merits of the litigation does not entitle the defendant to an award of attorney's fees. Absent additional proof that the plaintiff pursued the litigation in bad faith or brought a frivolous, unreasonable, or groundless action, the prevailing defendant cannot recover attorney's fees in addition to a judgment on the merits. Further, a court in determining the propriety of a fee award in any action must take into consideration not only the merits of the suit, but also several factors entirely distinct from the underlying judgment. Finally, an award of fees generally represents a discretionary rather than a legal judgment by the court.
We note, moreover, that the same characteristics relied upon by the White court to distinguish fees from costs also distinguish fees from the merits of an action. Just as fees differ from costs because "the district court must evaluate possibly a dozen diverse factors," id. at 702, fees also differ from the merits because of those factors in addition to the merits which the court must examine in determining the propriety and size of a fee award. Similarly, the need for a separate hearing and additional submissions by the parties arises at each step of the litigation, whether the court's task is to determine the merits, tax costs, or award attorney's fees.
Although the Court reached this decision under the then-existing rules of equity, it noted that the same result would likely follow under the new Federal Rules of Civil Procedure because under the time provisions of Rules 59 and 60 "the passage of the term of court is not material." Id. at 169 n.9, 59 S.Ct. at 781 n.9. As Justice Frankfurter wrote on behalf of the Court, a fee request presents a collateral inquiry, "having a distinct and independent character."
Apart from its inconsistency with the Court's pronouncements in Sprague, the treatment of an application for attorney's fees as a motion to alter or amend a judgment may also create serious practical problems for counsel and the courts where a possible settlement is negotiated after entry of judgment on the merits. On the one hand, application of the ten-day rule set forth in Rule 59(e) would require counsel during settlement negotiations to discuss simultaneously the substantive issues in the action and the amount of the fee award. This situation may raise a serious ethical concern, as two circuits have cautioned, because counsel would be placed in the position of negotiating a fee ultimately destined for his pocket at the same time that all thoughts ought to be singlemindedly focused on the client's interests.
From both a policy and a legal standpoint, therefore, a claim for attorney's fees should be treated as a matter collateral to and independent of the merits of the litigation. Accordingly, the timeliness of a claim for fees should be governed by procedural rules that reflect the collateral and independent nature of the claim rather than by rules, such as the ten-day provision of Rule 59(e), that relate to the merits of the action.
This court has a real concern over fragmentation of appeals. In the interests of orderly and expeditious consideration of all issues arising from a single lawsuit, disputes on appeal over the merits, as well as disputes regarding the allowance of attorney's fees to a prevailing party, should ordinarily be considered and decided by this court in either a single or consolidated appellate proceeding. This court deems it essential that all district courts follow a consistent practice of promptly hearing and deciding attorney's fees claims in civil rights and other cases so that any appeal by an aggrieved party from the allowance or disallowance of fees can be considered by this court together with any appeal taken from a final judgment on the merits.
We observe that the problem of possible piecemeal appeals need not arise where the trial court delays entry of judgment on the merits pending determination of attorney's fee claims and thereafter enters a single final judgment determining all issues. If the trial court enters a separate judgment on the merits and reaches the attorney's fee issue subsequently, we suggest that district courts adopt a uniform rule requiring the filing of a claim for attorney's fees within twenty-one days after entry of judgment. If trial judges will promptly decide these claims, the aggrieved party to that issue may promptly appeal. If an appeal on the merits has already been taken, this court on its own motion or the motion of either party will consolidate the appeals for consideration by this court.
Either alternative will avoid piecemeal consideration of issues arising out of a single lawsuit and, therefore, we request that the district courts of this circuit promptly adopt procedures as suggested in this opinion.
There remains for discussion our existing rulings relating to this court's treatment of attorney's fee matters. In two unpublished orders, Fulbright v. Brown Group, Inc., No. 80-1234 (8th Cir. May 20, 1980), and Yellow Bird v. Barnes, No. 79-1958 (8th Cir. May 20, 1980), this court ruled that a district court judgment on the merits which does not dispose of a separate claim for attorney's fees is not final for purposes of appeal. Because these orders were unpublished, they carry no precedential value in this circuit.
The Fulbright and Yellow Bird rulings served to clarify that the district courts retained jurisdiction to pass upon a claim for attorney's fees even though one of the parties has filed a notice of appeal on the merits of the litigation. Because we hold in this opinion that a postjudgment motion for attorney's fees raises a collateral and independent claim, there can be no question that the district courts retain jurisdiction to
In conclusion, we summarize our rulings regarding appealability:
1) A motion for an assessment of attorney's fees raises a collateral and independent claim for determination by the district court. Thus, a judgment on the merits of an action, otherwise final, is final for purposes of appeal notwithstanding that a claim for attorney's fees may remain to be decided.
2) When a final judgment on the merits has been entered in an action in which a claim for attorney's fees remains pending, the time for appeal on the merits runs from the entry of judgment. Subsequent consideration by the district court of the attorney's fees claim does not toll the time for appealing the judgment on the merits.
3) As a collateral and independent claim, a motion for allowance of attorney's fees need not be filed within the ten-day period for motions to alter or amend the judgment on the merits, Fed.R.Civ.P. 59(e). A claim for attorney's fees must be filed, however, within a time to be prescribed by local rule. We suggest that a twenty-one day rule would be appropriate.
4) The district court's order on the claim for attorney's fees is separably appealable as a final judgment and may be consolidated with any pending appeal on the merits of the action. In order to enable the appeals to be consolidated this court requests that district courts promptly decide attorney's fees issues.
We have observed also that the problem of fragmented appeals in cases calling for an award of attorney's fees may be obviated if trial judges enter but one judgment after determining all issues in a case, including the merits of the action and any claim for attorney's fees.
IV. The District Court's Award of Attorney's Fees.
A. The Evidence.
Morris Obin, a sixty-year-old man of the Jewish faith, began his employment with Anheuser-Busch in January of 1959 and worked as a maintenance machinist at its Bevo Bottling Plant until his discharge on May 1, 1975. During that time, he performed excellently as a machinist but compiled one of the worst disciplinary records at the plant, amassing a total of nine weeks and four days of disciplinary suspension in addition to numerous written and verbal reprimands for employee misconduct. In the final nine years of his employment, Obin engaged in at least twenty incidents of misconduct, including violations of work rules, refusals to work, absenteeism, leaving work early, sleeping on the job, insubordination, and assault. On each occasion, Obin was represented by District No. 9 of the International Association of Machinists and Aerospace Workers. As the certified collective bargaining agent of all machinists at the Bevo plant, District No. 9 also processed some six or seven grievances filed by Obin against the Company during his employment. The Union pursued two of these grievances to arbitration, one of which resulted in an award of backpay to Obin and the removal of disciplinary letters from his file.
The events culminating in Obin's discharge arose in part because of the unusual work environment at the Bevo plant. Anheuser-Busch
On April 28, 1975, James H. Aczinowicz requested a machinist to repair a packing machine on the unit where he worked as a line bottler foreman. Obin responded to the request, carrying an open seven-ounce bottle of beer, and began repairs on the machine. While Obin worked on the unit, Aczinowicz called his maintenance supervisor, Herbert I. Kane, to report Obin for drinking on the production line in violation of Company rules.
When Kane arrived at the production line, he asked Obin, "How many times am I going to have to tell you about this beer drinking on the line?" Obin answered, "You can't tell me nothing. Get a foreman."
Upon leaving Kane's office, Obin again proceeded toward the lunchroom in, what he admitted to be, a "rather stubborn mood" because "he had been drinking pretty heavily" that day. There, he opened another bottle of beer and resolved to see Aczinowicz about the incident. At the production line, he approached Aczinowicz and said, "You son of a bitch, it's none of your f_____g business if I drink."
After lunch, Obin learned that Kane wanted to see him again in his office and that this time Kane intended to suspend him. Saul again accompanied Obin into Kane's office, where Kane indicated that Obin would be suspended for cussing out and spilling beer on a foreman.
After a preliminary discussion between the Company and Union at which the Union argued for Obin's reinstatement pending resolution of the dispute, the Company, on April 30, discharged Obin. Edward Lenahan, Obin's chief shop steward, advised Obin to file a grievance protesting his discharge and to contact Roy Hawkins, who would represent Obin during the grievance proceedings.
On May 2, Obin and Saul met to fill out the grievance form. On the back of the form, Saul wrote:
Further proceedings on Obin's grievance did not occur until June 2 because of the vacation-business absence of Union representative
Thereafter, Obin filed a charge of religious discrimination against the Company and the Union with the Equal Employment Opportunity Commission. The EEOC issued Obin a right-to-sue letter, but in it the Commission informed Obin that it had found no reasonable cause to believe that the Company had discharged him or the Union had failed to pursue his unlawful discharge grievance to arbitration because of his religion. Nevertheless, Obin brought this action in federal district court and pursued the suit in spite of warnings by the Company and the Union in their answers to Obin's complaints and by separate letters to Obin's counsel that they believed the allegations to be meritless and that they would seek an award of attorney's fees if he further pressed the case. Neither the Company nor the Union, however, moved for summary judgment on either count of Obin's complaint.
On the basis of this evidence, the district court found:
The award of attorney's fees lies within the sound discretion of the district court. See Cronin v. Sears, Roebuck & Co., 588 F.2d 616 (8th Cir. 1978) (award of fees for breach of collective bargaining agreement and duty of fair representation); 42 U.S.C. § 2000e-5(k) (1976) (award of fees in Title VII action). We must decide, therefore, whether the district court abused its discretion in awarding fees to the Company or the Union for defending against either count in Obin's complaints.
1. Fee award to the Company.
Because Obin's claim of unlawful discharge stands independent of his religious discrimination charge, we must consider not only whether Obin's charge of religious discrimination was devoid of merit, but also whether he brought or maintained his unlawful discharge action in bad faith.
The only direct evidence of religious discrimination by the Company against Obin stems from a 1974 conversation between Jack Russell, the Company plant manager, and Frank Wesslak, a coworker of Obin. Wesslak testified that during that conversation, Russell referred to Obin as "a god damn sheeney." Wesslak further testified, however, that he never again had heard Russell make a religious slur against Obin, and that he had no reason to believe from this or any other conversation with Russell that Obin's job was in jeopardy because of religious beliefs.
On the basis of Russell's single anti-Semitic remark, we would be reluctant under the circumstances of this case to conclude that the district court abused its discretion in finding Obin's claim of religious discrimination to be frivolous or meritless. Nevertheless, Russell's religious slur does not stand as the only evidence from which religious discrimination might be inferred.
Obin's disciplinary record reveals that he did not become the subject of major disciplinary action by the Company until 1966 when Russell first joined Anheuser-Busch and became Obin's shift supervisor. Indeed, of the nine incidents for which Obin received formal discipline, Russell had either a direct or indirect involvement in all but the first one. Furthermore, after the Union lost an arbitration decision on a grievance filed by Obin less than a year before his ultimate discharge, Russell told Wesslak, who was then Obin's shop steward and charged with Obin's representation, "Not [to] become involved with Maury Obin any further, and [not to] do any more fighting for him." Finally, we note from the
Further, the record indicates that the Company had not disciplined other employees for the same violation that resulted in Obin's discharge. Some employees testified that they often drank on the production lines without disciplinary consequences. The record also raises some question whether the Company disciplined any employee other than Obin for violation of the drinking rule before it posted additional notices of the Company's beer drinking policy in June and July. Thus, Obin might believe with some justification that the Company dismissed him in May for reasons other than for violating the plant rules. Finally, the record discloses at least one prior instance in which Obin and another employee engaged in identical conduct as part of the same incident but for which Obin received a more severe sanction.
The Company points out, however, that Obin admitted that he had beer on the production line, conceded that he knew it was a violation of plant rules, and acknowledged that he had been warned on previous occasions about having beer on the production lines. Thus, the Company argues, it had good cause under the collective bargaining agreement to discipline Obin. In a discrimination action, however, the issue is not whether an employee's alleged misconduct warranted discipline but whether the employer disciplined the employee because of the misconduct. If religious discrimination plays a role in the decision to discipline an employee, then the employer cannot claim good cause as the basis for imposing discipline.
The Company also argues, with some justification, that Obin's prior disciplinary record could very easily justify any facially different sanction for his violations; thus, Obin's claim of religious discrimination rested upon weak factual underpinnings. For purposes of determining the propriety of an award of attorney's fees to a prevailing defendant in a Title VII action, however, plaintiff's claim must be not only weak but meritless. See Horner v. Mary Institute, 613 F.2d 706, 715 (8th Cir. 1980); Mosby v. Webster College, 563 F.2d 901, 905 (8th Cir. 1977).
In our view, the coincidence between Obin's disciplinary problems and Russell's arrival at the Company and the superficially different disciplinary treatment of Obin, along with Russell's religious slur, provide some basis for a claim of religious discrimination. It follows, therefore, that the district court erred in awarding the Company attorney's fees for its defense of Obin's Title VII claim.
This evidence, under the circumstances, also convinces us that the district court erroneously found that Obin brought or maintained his unlawful discharge action in subjective bad faith. Because Obin's charges of religious discrimination and unlawful discharge stem from the same incidents, it would be anomalous to conclude that Russell's remarks and the Company's facially discriminatory treatment of his misconduct were sufficient to overcome the meritless and frivolous standard for awarding attorney's fees in a Title VII action, but that essentially the same evidence was insufficient to overcome the more demanding standard of subjective bad faith on the unlawful discharge count of Obin's complaint. Accordingly, the Company was not entitled to its attorney's fees under either theory of recovery.
2. The fee award to the Union.
As to the Union, however, the record reveals a dearth of evidence to support Obin's Title VII claim. Obin concedes that no officer or agent of District No. 9 spoke to him in a derogatory manner because of his religious beliefs. He would infer discrimination from the Union's "cavalier" treatment of his unlawful discharge grievance against the Company.
Even if we grant credence to Obin's version of the facts, we must regard his charge of religious discrimination as frivolous because of his failure to show any connection between the Union's actions and a discriminatory motive. Nothing in the record ties these incidents to religious discrimination by the Union in violation of Title VII. Moreover, we have examined Obin's references to other portions of the record as evidence of discrimination and find these references to be without any real substance.
To sustain the entirety of the district court's award of fees to the Union, however, we must determine that Obin acted in bad faith in prosecuting his duty of fair representation claim. We believe that the award of fees on this ground was erroneous. From Obin's perspective, as we must view the issue of bad faith, the Union had previously defended him in each dispute with management over Company rules and practices and fully processed his prior grievances. As a result, Obin might have expected that the Union would request arbitration on this grievance. Unlike his previous grievances, moreover, the outcome of this one would determine his continued employment with the Company. Under these circumstances, Obin might have believed that the loss of a job would make this grievance all the more important to pursue. Finally, the apparent willingness of Saul, Lenahan, and other Union personnel to ask Hawkins to reconsider his decision not to request arbitration of Obin's unlawful discharge grievance might have strengthened Obin's belief that his claim had some merit.
For these reasons, we vacate the district court's award of attorney's fees to District No. 9 and remand the case for an assessment of only those fees incurred by the Union in excess of the amount that it would have incurred had Obin's action consisted solely of the unfair representation claim.
In summary, we affirm the district court's judgment on the merits of Obin's claims against both the Company and the Union. We reverse the court's award of attorney's fees to Anheuser-Busch. We vacate the award of fees to District No. 9 as assessed by the court and remand that issue for further consideration consistent with this opinion. We affirm on all other issues. Each party shall bear its own costs on appeal.
Thus, the judgment of December 21, 1979, did not become final for purposes of appeal until April 9 when the district court finally resolved the motions for attorney's fees.
Although the precise issue before the panel concerned the timeliness of appellant's notice of appeal rather than the timeliness of appellees' motions for attorney's fees, the panel's ruling would seem to govern the outcome of both issues: If attorney's fees constitute part of the final judgment, then by implication, a motion for fees should be governed by those time limitations which apply to a motion to reenter the judgment. That issue, however, was neither briefed nor argued to the panel, and this court has never addressed the attorney's fees issue in terms of the timeliness of a claim for fees. The importance of the timeliness issue, particularly in light of the growing disagreement among the circuits on the question, requires this court to address the issue in depth.
In our view, if identical standards govern the availability of fee awards under § 1988 and Title VII, then the period of time within which fee claims must be filed under the two statutes should not differ.
Nor do we see any reason to apply a different time limitation to claims for attorney's fees founded on the bad-faith exception to the American rule. We recognize that the Fifth Circuit, in contrast to our view, applies a ten-day limitation to motions for attorney's fees predicated on the court's inherent power to allow fees in instances of bad faith, but imposes no express time limit on motions for fees filed pursuant to § 1988. Compare Knighton v. Watkins, 616 F.2d 795, 797-98 (5th Cir. 1980) (§ 1988) with Stacy v. Williams, 446 F.2d 1366, 1367 (5th Cir. 1971) (bad-faith exception). We believe, however, practical considerations argue against this distinction. As illustrated by this case, a prevailing defendant in a multi-count action including a Title VII claim will file for an award of attorney's fees on both statutory and equitable grounds and similar considerations will underlie the court's determination of whether to allow fees under either or both theories. Thus, similar procedural rules should govern the timeliness of fee applications.
Rule 54(d) provides:
In our view, however, it is unrealistic to expect the parties "to waive fees altogether," and it is preferable to avoid any appearance of impropriety even if an agreement on fees may be "easily accomplished." See Mendoza v. United States, supra, 623 F.2d at 1352 ("We cannot indiscriminately assume, without more, that the amount of fees have no influence on the ultimate settlement obtained for the class when, along with the substantive remedy issues, it is an active element of negotiations.").
Under this provision, neither Kane, a maintenance supervisor, nor Aczinowicz, a line bottler foreman, could issue an order to Obin except through his machinist foreman.