United States v. Allegheny-Ludlum Industries, Inc.

568 F.2d 1073, 17 Fair Empl. Prac. Cas. (BNA) 38, 1978 U.S. App. LEXIS 12391, 16 Empl. Prac. Dec. (CCH) 8174

Opinion

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

Before WISDOM, GEE and TJOFLAT, Circuit Judges.

PER CURIAM:

We have withheld action on petition for rehearing in this matter to await the decision of the Supreme Court in Christiansburg Garment Co. v. E.E.O.C., - U.S. -, 98 S.Ct. 694, 54 L.Ed.2d 648, No. 76-383 on its docket. That decision was handed down January 23, 1978. Since it squarely and unequivocally determines the standard to be applied in awarding attorneys’ fees to prevailing defendants in such cases as these, we see no occasion to request a response to the petition for rehearing before acting in obedience to Christiansbnrg. Fed.R.App.P. Rule 40 provides that such petitions will not “ordinarily” be granted in the absence of such a response, but a case which the Supreme Court specifically and unanimously notes as having adopted the wrong rule, - U.S. -, at -, 98 S.Ct. 694, 54 L.Ed.2d 648, is not an ordinary one.

We therefore grant the petition for rehearing of the appellants Harris, et al., and withdraw that portion of the opinion relating to the standard to be applied in awarding attorneys’ fees to prevailing defendants. This portion consists of the entire paragraph, last but one in the opinion, commencing, “The second question is . . ” 558 F.2d 742, 744, 5 Cir. (1977). No replacement for this language is necessary, the district court being as capable as we of reading and applying Christiansburg.

It is so ORDERED.