McCafferty v. Local 254

• Court: Court of Appeals for the First Circuit
• Decided: August 2, 1999
• Docket: 98-1909
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 98-1909



                         PAUL McCAFFERTY,



                       Plaintiff, Appellee,



                                v.



    LOCAL 254, SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO



                      Defendant, Appellant.


APPEAL  FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



         [Hon. Reginald C. Lindsay, U.S. District Judge]


Before



                     Boudin, Circuit Judge,

                Campbell, Senior Circuit Judge,

                   and Lipez, Circuit Judge.


Gabriel O. Dumont, Jr. for appellant.

          David B. Rome for appellee.


August 2, 1999


LIPEZ, Circuit Judge.  In February 1998, Paul McCafferty

filed a complaint in the district court requesting a preliminary

injunction against his union, Local 254 of the Service Employees

International Union (hereinafter "the Local" or "Local 254"). 

McCafferty claimed that Local 254 had "infringed upon his right to

seek office within Local 254 . . . by refusing to and failing to

comply with his reasonable requests for a list of [Local 254-

represented] companies/employers and their locations . . . and for

the names and addresses of Local 254 members to allow him to

distribute campaign literature."  McCafferty predicated his claim

to relief on Title I and Title IV of the Labor-Management Reporting

and Disclosure Act of 1959 (the LMRDA).  After the Local filed its

opposing motion requesting the denial of McCafferty's request for

preliminary relief and the dismissal of his action, the district

court held a hearing and subsequently issued a preliminary

injunction granting McCafferty some of the relief he requested. The

district court also awarded McCafferty attorney's fees in a later

order.  This appeal contesting the award of attorney's fees

followed.

  We conclude that McCafferty is entitled to attorney's

fees for prevailing on his Title I claim but he is not entitled to

attorney's fees for his Title IV claim.  Given the court's

undifferentiated award of attorney's fees for McCafferty's claims,

we must vacate that award and remand for a new determination of

attorney's fees.  We begin our explanation of this result with a

detailed account of the relevant facts and procedure.

                               I.

  McCafferty, at all times relevant to this opinion a

member in good standing of Local 254, wanted to run for a union

office; nominations were scheduled for March 1998.  On November 26,

1997 he wrote to Local 254's recording secretary requesting, inter

alia, a copy of Local 254's by-laws, blank nomination papers, a

copy of any union rules governing fund raising, and "a list of

Local 254 represented companies."  On December 4, 1997, Local

254's recording secretary responded by sending McCafferty a copy of

Local 254's Constitution and by-laws, and pertinent sections of the

LMRDA.  He also informed McCafferty that nomination papers had not

yet been printed and that "Local 254 has no specific rules on

governing fund raising."  The LMRDA provisions which the Local

provided to McCafferty included 29 U.S.C.  481(c), which sets

forth the Local's obligation "to comply with all reasonable

requests of any candidate to distribute by mail or otherwise at the

candidate's expense campaign literature in aid of such person's

candidacy to all members in good standing."  The letter said

nothing about the list of represented companies that McCafferty had

requested.

  On January 28, 1998, McCafferty again wrote to Local

254's recording secretary requesting "a list of Local 254

represented companies/employers and their locations," reiterating

his requests for blank nomination papers and the Local's fund

raising rules, and adding a new request that "the Local provide

[him] with mailing labels containing the names and addresses of

voting Local 254 members."  On February 1, 1998, Local 254

distributed a newsletter to all members, including McCafferty,

informing members of official nominating procedures and directions

for obtaining nominating papers.  On February 3, 1998, the

recording secretary mailed a letter to McCafferty which included

the following statements:

    There is no requirement to provide prospective

  candidates with a listing of contracted

  employers.  You may, however, inspect a list

  of Local 254-contracted employers by

  appointment at the Union Office.  You may not

  copy the list.



    Campaign Literature: Reasonable requests of

  any candidate for the Local to mail campaign

  literature at the candidates' expense will be

  complied with.  Payment to cover the expenses

  involved in such mailing will be paid in

  advance.  Other than distribution of

  literature made at candidate's expense, there

  will be no mailings of campaign literature by

  the Local.



    Membership Lists: Every candidate shall be

  given the right to inspect the printout

  membership list of Local 254.  Special

  arrangements will be made to set up a separate

  room where the membership list will be

  available for inspection . . . .  No candidate

  shall be furnished a copy of the membership

  list.  Candidates may not copy the membership

  list.



This letter, although postmarked on February 4, 1998, did not reach

McCafferty until approximately one month later.  Apparently, a

change of address had been filed for McCafferty which temporarily

misdirected his mail to Las Vegas, Nevada.

  On February 6, 1998, McCafferty filed the instant suit,

seeking an injunction to compel Local 254 to provide him with "(a)

a list of all Local 254 bargaining units and locations; and (b)

mailing labels of all voting members in Local 254."  On

February 12, the Local responded in writing to McCafferty's request

for a preliminary injunction.  While acknowledging its duty under

Title IV to "comply with any reasonable request that the Union

distribute at the member's expense campaign literature," Local 254

denied any "requirement under Title I of the LMRDA that Local 254

furnish McCafferty with a list of Local 254 employers and

locations."  Local 254 attached to its response a copy of its

February 3, 1998 letter and a sworn affidavit from the recording

secretary affirming that he had mailed the letter on February 3. 

McCafferty apparently saw the Local's February 3 letter for the

first time when it was filed with the court.

  The district court held a hearing on McCafferty's

preliminary injunction motion on February 13, 1998.  At the

hearing, Local 254 reiterated its position that McCafferty had no

right to a copy of either a list of contracting employers or the

membership list.  The district court inquired whether Local 254

would agree to post a list of employers and their locations and

allow that list to be copied.  The Local assented and, later that

day, posted the list.

  On February 16, McCafferty forwarded a draft preliminary

injunction to Local 254 memorializing the commitments the Local had

made at the February 13th hearing.  On February 17, Local 254

notified McCafferty that it would oppose the issuance of an

injunction and that a list of Local 254 employers and addresses had

been posted at the Local's offices since February 13, 1998. 

According to the terms of the draft preliminary injunction, such a

list was to be posted "by the close of business February 19, 1998."

  On February 17, McCafferty filed his proposed injunction

with the court and Local 254 filed its opposition and proposed

order of dismissal.  On that same day, the district court issued

the preliminary injunction in its proposed form, adding the

handwritten notation that it was issued "upon agreement of the

parties."  The preliminary injunction ordered the Local to post a

list of bargaining units by employer and location; to allow the

copying of that list; and to comply with any candidate request to

mail campaign literature so long as the candidate paid in advance

the cost of such mailing.  The preliminary injunction also included

a briefing schedule on the plaintiff's claim for attorney's fees

and costs.

  On July 9, 1998, the district court issued an opinion and

order on attorney's fees setting forth the basis for the issuance

of the preliminary injunction and the award of attorney's fees. 

With respect to McCafferty's request for a list of all bargaining

units represented by Local 254 by employer and location, the court

concluded that this request was "intended to remedy th[e] imbalance

of access to information required for nomination."  As such, the

court found that the claim arose under Title I of the LMRDA, and it

awarded attorney's fees to McCafferty pursuant to Hall v. Cole, 412

U.S. 1 (1973).  With respect to McCafferty's request for mailing

labels with the addresses of union members, the court concluded

that "McCafferty had a clearly established right to have the union

provide him with mailing labels containing the names and addresses

of voting union members" for the purpose of arranging "at his own

expense, for a timely mailing of campaign literature prior to the

convention at which nominations would be made."  Relying on

International Organization of Masters, Mates and Pilots v. Brown,

498 U.S. 466, 476 (1991) for this "clearly established" right, the

court characterized the Local's unwillingness to provide McCafferty

with the requested mailing labels as "verg[ing] on the frivolous." 

Although the court acknowledged that the mailing label claim arose

under Title IV of the LMRDA, it found that "an award of fees is

appropriate on this claim as well."  The court ordered the Local to

pay McCafferty an aggregate award of attorney's fees in the amount

of $9,388.35 for his Title I and Title IV claims.  This appeal

followed.

                              II.

  Before analyzing the specific claims at issue in this

case, we set forth some general principles of law applicable to

these claims.

  A. General Principles

  The LMRDA protects the equal rights of union members to

participate in the internal affairs of their unions.  In enacting

the LMRDA, Congress found that "it is essential that labor

organizations . . . and their officials adhere to the highest

standards of responsibility and ethical conduct in administering

the affairs of their organizations," and declared that the LMRDA

was designed "to eliminate or prevent improper practices on the

part of labor organizations."  29 U.S.C.  401(a), (c).  Title I

of the LMRDA, 29 U.S.C.  411-15, "provides a Bill of Rights for

union members, guaranteeing equal rights and privileges to nominate

and vote for candidates, as well as freedom of speech and assembly

and protection from improper discipline."  Molina v. Union De

Trabajadores De Muelles, 762 F.2d 166, 167 (1st Cir. 1985)

(internal quotation marks omitted).  The "typical Title I claim

involves an allegation of unequal treatment among union members." 

Id. at 167 (quoting Local No. 28, Furniture and Piano Moving,

Furniture Store Drivers, Helpers, Warehousemen and Packers v.

Crowley, 467 U.S. 526, 539 (1984)).  The focus of Title IV is more

limited.  It sets out detailed regulations "aimed solely at

protecting union democracy through free and democratic elections." 

Id.  These regulations include the requirement that unions must

"comply with all reasonable requests of any candidate to distribute

by mail or otherwise at the candidate's expense campaign literature

in aid of such person's candidacy."  29 U.S.C.  481(c).

  The LMRDA includes separate enforcement mechanisms for

Title I and Title IV.  "Title I is enforceable in federal court

through a private action filed by the aggrieved union members."

Molina, 762 F.2d at 167; see also 29 U.S.C.  412.  "Enforcement of

Title IV rests with the Secretary of Labor,"  Molina, 762 F.2d at

167, with one exception.  The provision of Title IV obligating

unions to mail candidates' campaign literature, 29 U.S.C.  481(c),

is "enforceable at the suit of any bona fide candidate for [union

office] in the district court of the United States."  29 U.S.C. 

481 (c); International Organization of Masters, Mates & Pilots v.

Brown, 498 U.S. 466 (1991) ("[U]nlike other rights created by Title

IV that are judicially enforceable only in actions brought by the

Secretary of Labor, the  [481(c)] right is directly enforceable in

an action brought by the individual union member);  see also Mims

v. Teamsters Local 728, 821 F.2d 1568, 1571 (11th Cir. 1987)

(recognizing that  481(c) "is the only privately enforceable

provision in Title IV").  

  While neither Title I nor Title IV explicitly authorizes

the award of attorney's fees to prevailing union member-litigants,

the Supreme Court has held that "the allowance of counsel fees to

the successful plaintiff in a suit brought under [Title I] of the

LMRDA is consistent with both the Act and the historic equitable

power of federal courts to grant such relief in the interests of

justice."  Hall v. Cole, 412 U.S. 1, 14 (1973).  Recognizing that

"the traditional American rule ordinarily disfavors the allowance

of attorney's fees in the absence of statutory . . .

authorization," the Court reasoned that a successful Title I

litigant "render[s] a substantial service to his union as an

institution and to all of its members."  Id. at 4, 8 (footnotes

omitted).  The Supreme Court compared suits under Title I of the

LMRDA to shareholder suits where the "successful litigation confers

'a substantial benefit on the members of an ascertainable class,'"

(in the LMRDA context, the union membership) and it is therefore

equitable to divide the financial burden among the benefitted

class.  Id. at 6 (quoting Mills v. Electric Auto-Lite Co., 396 U.S.

375, 393-94 (1970)).  The courts of appeals which have faced the

issue have found this reasoning equally applicable to meritorious

claims to enforce the mailing provision of  481(c), Title IV's

only privately enforceable provision.  See Mims, 821 F.2d at 1571;

Bliss v. Holmes, 867 F.2d 256, 258 (6th Cir. 1988).

  Local 254 objects to the court's award of attorney's fees

for McCafferty's employer list claim pursuant to Title I and his

mailing label claim pursuant to Title IV.  We consider each claim

in turn.

  B. List of Represented Employers

  The Local characterizes McCafferty's demand for access to

the employer list as a challenge to a general, evenly applied rule

rather than a challenge premised on any discriminatory treatment.

In the absence of such discriminatory treatment, the sine qua non

of a Title I claim, McCafferty's claim would arise exclusively

under Title IV of the LMRDA.  As discussed above, the only

privately enforceable provision in Title IV is the provision of 

481(c), which deals with reasonable requests to mail campaign

literature; other provisions of Title IV must be enforced by the

Secretary of Labor.  See Molina, 762 F.2d at 167.  Thus, if the

Local were correct in its insistence that McCafferty's employer

list claim falls within the exclusive purview of Title IV, the

district court should not have addressed the merits of McCafferty's

request for access to the employer list.

  In support of its argument, the Local invokes Calhoon v.

Harvey, 379 U.S. 134 (1964), and its progeny.  In Calhoon, union

members brought a lawsuit, ostensibly under Title I, challenging

their union's restrictive policies regulating eligibility for union

office.  See id. at 136.  The union by-laws at issue in Calhoon

prohibited a member from nominating anyone but him or herself for

union office, and the union's national constitution required, inter

alia, membership in the national union for five years to be

eligible for union office.  See id.  The Supreme Court refused to

recognize a Title I action in Calhoon because "Title IV, not Title

I, sets standards for eligibility and qualifications of candidates

and officials and provides its own separate and different

administrative and judicial procedure for challenging those

standards."  Id. at 138.  The Court emphasized that the complaining

union members had "not been discriminated against in any way and

ha[d] been denied no privilege or right to vote or nominate which

the union has granted to  others."  Id. at 139 (emphasis added);

see also Molina, 762 F.2d at 168-69 (holding that because

plaintiffs challenged an evenly applied rule as having been

"activated for an improper purpose" their complaint "[went] to the

overall fairness of the election voting process   the domain of

Title IV   rather than to an individual's unequal treatment" which

would be actionable under Title I).  The Local insists that

McCafferty, like the plaintiffs in Calhoon and Molina, complains

about an evenly applied rule which does not discriminate against

any union member.

  The Local misapprehends the nature of McCafferty's Title

I claim, aptly perceived by the court as a claim relating to the

conditions of access to the employer list.  The Local conceded at

the preliminary injunction hearing that incumbent union officials

had unlimited access to the employer list.  Union members like

McCafferty, intent on running for office and perhaps challenging

incumbents, could view that list only by appointment and could not

copy it.  Given the Local's acknowledgment of unlimited incumbent

access to the list, the limited access/no-copy rule was tantamount

to a rule that incumbents may possess the employer list but other

union members may not.  The discriminatory effect of that rule on

union members seeking nomination for union office is palpable (see

note 1, above), and is susceptible to a Title I challenge.

  The Local also argues the inapplicability of Title I to

McCafferty's claim based on McCafferty's efforts to secure a

nomination for union office and hence participate in a union

election.  According to the Local, the court ignored "long-standing

principles that Title I does not protect the right of candidates or

prospective candidates to seek nomination and election."

  The Local has too limited a view of Title I.  Although

Title IV focuses on union elections, "Title I of the LMRDA was

specifically designed to protect the union member's right to seek

higher office in the union."  Hall v. Cole, 412 U.S. 14 (1973). 

The rights of union members are not protected exclusively by Title

I or by Title IV.  As the Supreme Court has recognized, Title IV

"protects many of the same rights as does Title I."  Crowley, 467

U.S. at 539.  While Title IV may be the only remedy for rights

protected by both Title I and Title IV once an election is

completed or underway, "the full panoply of Title I rights is

available to individual union members 'prior to the conduct' of a

union election."  Id. at 541.  Therefore, if a Local denies equal

rights to its members during the nomination process, the Local's

conduct may be challenged in court by members of the union pursuant

to Title I.  McCafferty posed such a challenge, and his claim is

cognizable under Title I.

  In its final challenge to McCafferty's Title I claim, the

Local argues that the court wrongly presumed the presence of

discrimination from the Local's concession that incumbent officers

have unequal access to the employer lists and that Title I requires

evidence that incumbents had in fact used their unequal access to

their advantage as candidates.  See Marshall v. Provision House

Workers Union, Local No. 274, 623 F.2d 1322, 1326 (9th Cir. 1980)

(finding that "unequal access alone does not warrant a finding of

'discrimination'"); cf. Reich v. Local 396, Int'l Bhd. of

Teamsters, 97 F.3d 1269, 1276 (9th Cir. 1996) (recognizing

discrimination in challengers' limited access to employer lists

where the incumbents exploited their advantage by campaigning at

job sites with which they were familiar because of their activities

as incumbent union officials).  This argument of the Local borders

on the frivolous.  Its agreement at the preliminary injunction

hearing to grant McCafferty substantially the relief he sought with

respect to the employer list  (posting the list and allowing it to

be copied) obviated the need for evidence of actual discrimination

on this Title I claim.  Having conceded defeat on this claim before

the district court, the Local cannot assert error on the basis of

insufficient evidence. 

  Given the court's correct determination that McCafferty's

employer list claim was cognizable under Title I, we review for

abuse of discretion the district court's award of attorney's fees

for that claim.  See Local 258, Service Employees Int'l Union v.

Nonotuck Resource Assocs., Inc., 64 F.3d 735, 737 (1995).  As

already noted, the Supreme Court has sanctioned the award of

attorney's fees to successful litigants under Title I of the LMRDA,

reasoning that union members who prevail on Title I claims

"confer[] substantial benefits" on their fellow union members. 

Hall, 412 U.S. at 5.  Local 254 dismisses the relief won by

McCafferty as too insubstantial for the court to "intuitively

conclude that a common 'substantial benefit' was achieved for the

members of Local 254," and argues further that there is no evidence

in the record "that the failure of Local 254 to disseminate a list

of Local 254 employers has ever impeded any member's right to seek

his/her nomination for Union office."

  The Local insists on evidence of a "substantial benefit"

that is not required.  In the seminal case of Hall v. Cole, the

Supreme Court affirmed the award of attorney's fees because "by

vindicating his own right of free speech guaranteed by . . . Title

I of the LMRDA, [the plaintiff] necessarily rendered a substantial

service to his union as an institution and to all of its members." 

Hall, 412 U.S. at 8.  The district court concluded that

McCafferty's litigation conferred a similar benefit: "McCafferty

unquestionably procured access to employer and bargaining unit

information that far exceeded that which the union had previously

offered to provide."  This access advanced the equal rights of

union members to pursue union office.  See id. at 8 ("[T]o the

extent that [Title I] lawsuits contribute to the preservation of

union democracy, they frequently prove beneficial 'not only in the

immediate impact of the results achieved but in their implications

for the future conduct of the union's affairs.") (quoting Yablonski

v. United Mine Workers of America, 466 F.2d 424, 431 (D.C. Cir.

1972)).  

  C. The Mailing Labels

  The district court's award of attorney's fees on the

Title IV claim cannot be sustained.  As a legal matter, the

district court was incorrect in stating that McCafferty had "a

clearly established right to have the union provide him with 

mailing labels containing the names and addresses of voting union

members."  Title IV of the LMRDA imposes on unions the "statutory

duty to distribute campaign literature to their membership in

response to the reasonable request of any candidate for union

office."  Brown, 498 U.S. at 467 (construing 29 U.S.C.  481(c)). 

Although the court cited language in the Brown opinion recounting

the candidate's request "that the Union provide him with mailing

labels containing the names and addresses of voting Union members

to be given to a mailing service so that he could arrange, at his

own expense, for a timely mailing" of campaign materials, id. at

469, the Supreme Court affirmed a preliminary injunction that

differed from the request of the plaintiff in Brown by directing

the union "to deliver the names and addresses of the Union members

to a mailing service acceptable to the parties."  Id. (emphasis

added).

  Moreover, the parties in Brown were concerned with the

timing of campaign mailings and whether the union could postpone

compliance with an otherwise reasonable mailing request merely

because it conflicted with a union rule that authorized mailings

only after nominations had been made.  See id. at 468.  In holding

that the union's rule was inconsistent with the union's statutory

obligation to comply with all "reasonable" requests for mailings,

id. at 478, the Supreme Court focused on the timing of mailings of

campaign literature rather than the party who would receive a

member list as a prelude to a mailing.  Thus, the Brown Court had

no occasion to comment on the significant difference between the

union member's initial request to have mailing labels provided to

him personally (to turn over to a mailing service) and the district

court's order that the union provide the mailing labels directly to

a mailing service acceptable to the parties.  The distinction is 

important because "[t]he legislative history of the LMRDA

demonstrates a congressional intent that the use of membership

lists be severely limited and that such lists be kept out of the

hands of partisans in union campaigns to avoid coercion of

members."  Marshall, 623 F.2d at 1326; see also Legislative History

of the Labor-Management Reporting and Disclosure Act of 1959 at

1240 (1959 ed.) (Senator McClellan) (recognizing that there was

"apprehension that a person might become a candidate and then use

the [membership] list for improper purposes" and explaining that

the LMRDA "would simply permit [the candidate] to send his campaign

material to the union and have the union mail it out").  

  Brown clearly does not stand for the proposition that

candidates for union office are entitled to mailing lists. 

Indeed, such a reading would render another part of  481(c)

superfluous.  Section 481(c) gives each candidate for union office

the right to inspect a membership list containing names and last

known addresses of all members "once within 30 days prior to an

election."  29 U.S.C.  481(c); see also 29 C.F.R.  452.71 ("The

right of inspection does not include the right to copy the list but

does include the right to compare it with a personal list of

members.").  There would be no reason to guarantee candidates

access to the list "once within 30 days prior to an election" if

candidates were entitled to the list as a matter of right.

  Factually, the history of the mailing label claim is also

markedly different from McCafferty's employer list claim.  In his

initial correspondence with the Local's recording secretary,

McCafferty did not inquire about mailing labels and he did not

request that the Local undertake a mailing on his behalf.  Later,

McCafferty requested that the Local provide him with a set of

mailing labels of the Local membership to be turned over to a

mailing service, and he continued to press this claim in his

request for injunctive relief.  In response, the Local at all times

acknowledged an obligation to undertake a mailing of campaign

literature on McCafferty's behalf (and at his expense), but it

refused to turn over the mailing labels to McCafferty.  In fact,

even before McCafferty had requested mailing labels, in response to

McCafferty's first letter, the Local had provided McCafferty with

a copy of section 481(c) of the LMRDA which codifies the Local's

obligation to undertake mailings at the candidate's expense. 

Later, both in its February 3 letter and in its motion to dismiss

McCafferty's complaint, the Local acknowledged this statutory duty

and consistently represented that it intended to comply with this

obligation.  With respect to McCafferty's Title IV claim, the

lawsuit had no effect on the union's behavior or obligations.  The

court therefore erred in designating McCafferty as a "prevailing

party" on this claim. 

  For these reasons we must vacate the court's award to

McCafferty of attorney's fees which erroneously included fees for

his Title IV claim.

                              III.

  McCafferty sought and received from the district court

attorney's fees for the legal work required to establish his right

to attorney's fees in the underlying action.  The principle is well

established that "[t]he fee application is a necessary part of the

award of attorney's fees.  If the original award is warranted . .

. a reasonable amount should be granted for time spent in applying

for the award."  Donovan v. CSEA, Local Union 100, 784 F.2d 98, 106

(2d Cir. 1989).  This reasoning applies equally to attorney's fees

on appeal.  See Kinney v. International Bhd. Of Elec. Workers, 939

F.2d 690, 695 (9th Cir. 1991); Local 117, Int'l Ass'n of Heat and

Frost Insulators and Asbestos Workers v. Young, 775 F.2d 870, 873

(7th Cir. 1986); see also Hall v. Cole, 376 F. Supp. 460 (E.D.N.Y.

1974) (awarding appellate fees on remand in seminal LMRDA

attorney's fees case).  To proscribe attorney's fees for appellate

fee litigation might lead to frivolous fee litigation by union

officials in hopes of frustrating the vindication of members'

rights and chilling future challenges.  See Young, 775 F.2d at 873

("If disgruntled union members, as prevailing plaintiffs, were

forced to incur costs for unsuccessful, fruitless Union appeals,

this would have a chilling effect on union members' ability to

afford challenging the union leadership" such that "the purpose of

the LMRDA would be frustrated."). 

  Because our decision requires the district court to re-

calculate the prior fee award, we remand to the district court for

a determination of reasonable attorney's fees for the appellate

litigation as well.  See 1st Cir. R. 39.2 (directing applications

for attorney's fees in connection with appeals to be filed with the

clerk of the court of appeals "except in those circumstances where

the court of appeals has ordered that the award of fees and other

expenses be remanded to the district court for a determination").

                             IV.  

  For the reasons set forth above, the attorney's fee award

is Vacated and the matter is Remanded to the district court for a

new determination of attorney's fees consistent with this decision.