Wilder v. Bernstein

965 F.2d 1196, 60 U.S.L.W. 2782
CourtCourt of Appeals for the Second Circuit
DecidedJune 3, 1992
DocketNo. 896, Docket 90-7698
StatusPublished
Cited by16 cases

This text of 965 F.2d 1196 (Wilder v. Bernstein) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wilder v. Bernstein, 965 F.2d 1196, 60 U.S.L.W. 2782 (2d Cir. 1992).

Opinion

CARDAMONE, Circuit Judge:

This panel had before it last year an appeal by the City of New York (City or appellant) from a June 29, 1990 order of the United States District Court for the Southern District of New York (Ward, J.) awarding $355,388.85 in attorneys’ fees to appellees-intervenors, a group of 19 private child care agencies.1 We were asked on that appeal to determine whether the inter-venor group, which contributed importantly to the formation of the settlement we had previously approved in Wilder v. Bernstein, 848 F.2d 1338 (2d Cir.1988), was entitled to such an award under 42 U.S.C. § 1988 (1988). In a decision by a divided [1199]*1199panel (Oakes, C.J., dissenting), we reversed the intervenors’ award. See Wilder v. Bernstein, 944 F.2d 1028 (2d Cir.1991).

Subsequently, a petition for a rehearing with a suggestion for rehearing en banc was filed by intervenors. Upon further reflection we are all now convinced, primarily by the views expressed by the Chief Judge in his dissenting opinion, that the intervenors are entitled to an award of attorneys’ fees. The petition for rehearing is therefore granted. Our prior opinion reported at 944 F.2d 1028 reversing the district court order of June 29, 1990 is vacated and replaced with the following opinion, which prior to its filing has been circulated to all the active and senior judges of this Court. The case must nonetheless be remanded to the district court for it to sort out what should be the amount of those fees. We set forth guides for that purpose later in this opinion to inform the district court in the exercise of its discretion.

BACKGROUND

The facts are set forth in Judge Ward’s thorough opinion reported at 725 F.Supp. 1324 (S.D.N.Y.1989), with which we assume the reader’s familiarity, as well as in his opinion approving the settlement of the underlying lawsuit, reported at 645 F.Supp. 1292 (S.D.N.Y.1986). We recount only those facts relevant to this appeal.

The underlying litigation commenced in 1973 when New York City’s child care placement system was challenged by a group of plaintiffs representing a class of Protestant Black children. Plaintiffs ultimately asserted in their complaint four grounds on which they attacked the City’s foster care system: (1) the child care system operated to discriminate against children based on race, (2) it discriminated on the basis of religion, (3) it amounted to an establishment of religion, and (4) it unduly burdened the free exercise rights of Protestant children. The complaint sought declaratory and injunctive relief under 42 U.S.C. §§ 1983, 1985, and 1986, and 28 U.S.C. §§ 2201 and 2202. The matters alleged in the complaint were claimed to violate the First and Fourteenth Amendments of the United States Constitution, Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d (1982), and New York anti-discrimination regulations, 18 N.Y.C.R.R. §§ 303.1, 303.2 (1978).

In this complex litigation many groups became involved to varying degrees and for varying reasons. The main participants were (1) plaintiffs, a group of Protestant Black children in need of care outside their homes; (2) defendants New York City and municipal officials responsible for the City’s child care system; (3) defendants administrators of private, religiously affiliated, either Jewish or Catholic, child care agencies (defendant agencies); and (4) in-tervenors administrators of 19 private child care agencies. Among the intervenors were former defendant agencies who had been previously dismissed from the action with prejudice, some who had been dismissed without prejudice, and others who had never before been involved in the action.

In the summer of 1983, shortly before trial was scheduled to begin, plaintiffs and the City began negotiations in an attempt to reach a settlement. At that time inter-venors had in their care 4,600 children constituting 25 percent of the 17,000 children then in the City’s foster care system. Most of those in intervenors’ care were Black Protestant children and belonged therefore to the plaintiff class. In January 1984 some of the eventual intervenors wrote to the Corporation Counsel of New York City expressing strong objections to drafts of the settlement negotiated by it and plaintiffs. In April of that year plaintiffs and the City presented a proposed stipulation of settlement to the district court. The settlement ignored comments and suggestions made by the intervenor agencies, and was objected to by the defendant agencies and by intervenors. Intervenors continued to press their objections and, on June 15, 1984, were granted leave to intervene “for the limited purpose of opposing the proposed settlement.”

We digress for a moment to discuss how leave to intervene came about. Although [1200]*1200no petition for intervention was filed, letters, memoranda and affidavits objecting to the stipulation were submitted prior to the date intervention was ordered. The customary terms of either “plain tiff-inter-venor” or “defendant-intervenor” were not used to refer to the intervenors. Nor does the district court’s order set forth on what grounds and under which section of Fed. R.Civ.P. Rule 24 they were permitted entry into the action. In the case of at least some of the former defendant intervening agencies, the original parties had agreed in the decree permitting their dismissal that the dismissed agencies would receive reasonable notice of any proposed settlement and would be permitted, as of right, to appear and participate in any settlement proceeding. The district court considered the intervenors “nonparties vis-a-vis the underlying constitutional claims in the lawsuit” and, despite their constitutional objections, stated the intervenors joined the lawsuit for the “sole purpose of objecting to the Stipulation on clinical grounds,” 645 F.Supp. at 1350.

Nevertheless, it is plain from inter-venors’ 41 comprehensive objections to the proposed stipulation of settlement that the foster care children’s constitutional rights were raised. Some objections were addressed, it is true, solely to the administrative unworkability of the settlement. But a number of objections challenged the stipulation’s failure to consider adequately the needs of the children served, and its discrimination on equal protection and religious grounds. For example, intervenors alleged

9. ... the Stipulation will reduce the level of care provided to all children and families in the system.
10. [Twelve paragraphs] taken together authorize provision of their parents’ religious beliefs in violation of the First and Fourteenth Amendments to the Constitution of the United States.
16. The incorporation of ... the Preferred Placement System ... to rank agencies has no place in a federal court order in an action alleging racial and religious discrimination.

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Wilder v. Bernstein
965 F.2d 1196 (Second Circuit, 1992)

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Bluebook (online)
965 F.2d 1196, 60 U.S.L.W. 2782, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilder-v-bernstein-ca2-1992.