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COM. v. FLAHERTY

No. 94-3211.

40 F.3d 57 (1994)

COMMONWEALTH of Pennsylvania and Guardians of Greater Pittsburgh, Inc., individually and on behalf of its members and on behalf of all others similarly situated; National Association for The Advancement of Colored People-Pittsburgh Branch, individually and on behalf of its members and on behalf of all others similarly situated; National Organization for Women-Southwestern Pennsylvania Council of Chapters, individually and on behalf of its members and on behalf of all others similarly situated, and Donald Allen; Benjamin Ashe; Jerome Aziz; Richard Hurt; Adam Kinsel; Lynwood Scott and Richard Stewart, individually and on behalf of all others similarly situated; J. Terese Doyle, individually and on behalf of all others similarly situated; Cheryl Edmonds; Rose Mitchum; Linda Robinson; Joanne Rowe; Deborah Smith and Gloria Vanda, individually and on behalf of all others similarly situated; Harvey Adams; Mack Henderson; Theodore Saulsbury and Charles Tarrant, individually and on behalf of all others similarly situated; Gladys Smith, individually and on behalf of all others similarly situated v. Peter F. FLAHERTY, Mayor of the City of Pittsburgh and Acting Director of the Department of Public Safety of the City of Pittsburgh; Robert J. Coll, Superintendent of the City of Pittsburgh Bureau of Police; Stephen A. Glickman, President of the City of Pittsburgh Civil Service Commission; Albert Statti and Edward L. English, Members of the City of Pittsburgh Civil Service Commission; Melanie J. Smith, Secretary and Chief Examiner of the City of Pittsburgh Civil Service Commission; and City of Pittsburgh, all individually and in their official capacities v. COMMONWEALTH OF PENNSYLVANIA FRATERNAL ORDER OF POLICE. (Intervenor in D.C.). Michael C. SLATER v. CITY OF PITTSBURGH, a municipal corporation. Charles H. BOEHM; Paul G. Clark and Richard Usner, on behalf of themselves and all others similarly situated v. Sophie MASLOFF, Mayor of The City of Pittsburgh; Melanie J. Smith, Director of Personnel of The City of Pittsburgh; The Pittsburgh Civil Service Commission and The City of Pittsburgh, Commonwealth of Pennsylvania, Appellant.

United States Court of Appeals, Third Circuit.

Decided November 15, 1994.

Attorney(s) appearing for the Case

Thomas F. Halloran, Jr. (argued), Office of the Attorney General of Pennsylvania, Pittsburgh, PA, for appellant Commonwealth of Pennsylvania.

Samuel J. Cordes (argued), Ogg, Jones, DeSimone & Ignelzi, Pittsburgh, PA, for appellees Paul G. Clark and Richard Usner, on behalf of themselves and all others similarly situated.

Lorina W. Wise, City of Pittsburgh Dept. of Law, Pittsburgh, PA, for appellees City of Pittsburgh, all individually and in their official capacities.

Ronald D. Barber (argued), Strassburger, McKenna, Gutnick & Potter, Pittsburgh, PA, for appellees Daniel A. Dulski and Michael A. Benner.

Before: BECKER and COWEN, Circuit Judges and POLLAK, District Judge.

OPINION OF THE COURT

COWEN, Circuit Judge.

The Commonwealth of Pennsylvania, the original plaintiff in this matter, appeals from the order of the district court awarding attorney's fees against it pursuant to 42 U.S.C. § 1988 or, alternatively, pursuant to Federal Rule of Civil Procedure 41(b). Because the lawsuit filed by the Commonwealth was not frivolous, unreasonable, or without foundation and because the Commonwealth did not fail to prosecute its...

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