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The 2nd U.S. Circuit Court of Appeals says the town of East Haven, Conn., owes the National Association for the Advancement of Colored People over half a million dollars in legal fees and costs, because the NAACP achieved real court success in a 10-year legal battle to improve minority hiring. Senior Judge Peter C. Dorsey of the U.S. District Court for the District of Connecticut, whose decision was appealed to the 2nd Circuit, had a much more modest view of the NAACP’s success, which he called “not excellent.” Dorsey only awarded fees for short periods before and after the litigation. Under Dorsey’s approach, the fees and costs totaled only $10,366.20. The 2nd Circuit ruled that Dorsey’s reasoning amounted to an abuse of his judicial discretion. The proper formula, it held, allows attorneys’ fees throughout the case’s litigation and settlement negotiation periods. An attorney for the NAACP says the value of its legal work so far is about $500,000. The NAACP sued East Haven under Title VII of the Civil Rights Act of 1964, which makes an exception to the standard rule that each party pays its own attorneys’ fees. To encourage enforcement of the act by private litigants, the act allows judges to award attorneys’ fees to the prevailing party in a successful action. The big-ticket question in this and many similar cases is, what constitutes success? According to East Haven, represented by Hugh C. Keefe, the town voluntarily did everything the lawsuit asked it to do, except pay the NAACP lawyers. Keefe, of New Haven’s Lynch, Traub, Keefe & Errante, said the town is seriously considering a petition for certiorari to the U.S. Supreme Court. DORSEY RIGHT? “Judge Dorsey got it exactly right, and the 2nd Circuit got it exactly wrong,” said Keefe, who contends the lawsuit was nothing more than an action to recover legal fees. David N. Rosen, of New Haven’s Rosen & Dolan, appealed the case to the 2nd Circuit for the NAACP. He said the town had not agreed to remedy its hiring practices to include more minority employees before the lawsuit, and that the 2nd Circuit was correct to find no agreement on the part of the town to change its practices before the suit was launched. The case arose from a nationwide campaign by the NAACP in the late 1980′s called the “Suburban Litigation Program.” It located predominantly white towns near large minority population centers that had a policy of preferential hiring for residents. Although East Haven did not have such a policy, it had no black employees between 1983 and 1996, according to U.S. Equal Employment Opportunity Commission reports. In East Haven, during that period, blacks averaged 17.7 percent of the population. The NAACP got right-to-sue letters from the EEOC in 1990 and 1992. Five years of litigation ensued, in which the NAACP was unable to prove disparate treatment, but won a bench trial finding of disparate impact. The NAACP went back to court with a $444,215 bill for attorneys’ fees and another for $55,435 in costs. Dorsey found that the NAACP prevailed, barely. It “could have achieved its objectives via settlement, with the possible exception of fees and costs,” he wrote. He awarded just $10,333 in fees and $33.20 in costs for the period before May 1993 and for the post-trial fee application.

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