Accordingly, use of the Otis test to evaluate golf pro candidates was permanently enjoined. Cooper also requested back pay from the date on which he was disqualified as a consequence of failing the Otis test and an order requiring the City to hire him for the next available golf pro position. The court denied such relief. The district judge also denied Cooper's prayer for attorneys' fees and ordered that costs be taxed one-half to Cooper and one-half to the defendants.

Cooper appeals, alleging that the district court erred in refusing:

(1) To allow him to maintain his suit on behalf of all Negroes applying for any of the 19 jobs other than golf pro for which the City required the taking and passing of the Otis test;

(2) To award back pay;

(3) To order the City to hire him for the next available golf pro position; (4) To award attorneys' fees; and

(5) To tax all costs to the defendants.

We affirm in part, reverse in part, and remand for an evidentiary hearing. I. Class Action.

Cooper contends that the district court erred in narrowing the class for any of the following three reasons: (1) Since he alleges that the City has intentionally discriminated in all 20 of the job positions, there is but one legal and factual issue; (2) the City's use of the Otis test without first having undertaken to validate its relevancy to each of the 20 job classifications is itself a violation of the law giving rise to a cause of action; and (3) the City's admitted failure to take into account any cultural or educational deficiency on the part of Negroes in evaluating the meaning of their test scores violates the instructions of the Otis test, and therefore use of the test scores for Negroes is invalid. Each of these arguments is without merit.

[2] (1) First, the record does not support a finding that the City has intentionally discriminated in its hiring policies with respect to any of the 20 job classifications. Cooper cites cases in support of his theory such as Jenkins v. United Gas Co., 5 Cir. 1968, 400 F.2d 28, in which we allowed a class suit seeking redress for plant-wide racially discriminatory practices. But in that case, and in the others referred to by Cooper, there was evidence that the employer had intentionally discriminated against blacks. Consequently, the employer asserted but one defense, that he did not intentionally discriminate. Here there is no evidence of intentional discrimination on the part of the City. In the absence of such evidence, Cooper cannot successfully challenge the Otis test on a theory that the City of Atlanta used such test with the intent to disqualify a disproportionate number of blacks. Rather, his complaint must be that implementation of the test does in fact disqualify more blacks than whites and that as such it should be banned regardless of the presence or absence of such intent. To meet such challenge, the City must show with respect to each job category at issue that the test is substantially related to one's performance in the position sought. Necessarily, then, such a showing must be made for each of the 20 job classifications under attack. Class treatment for all 20 job classifications seems inappropriate.

[3, 4] (2) Next Cooper argues that the Otis test may be presumed invalid because the City did not, prior to its implementation, undertake a study to validate its ability to forecast an applicant's performance in each of the 20 jobs at issue. Hence, says Cooper, the factual propositions are identical: the same test are [sic] being used as an employment criterion, in each category no prior validation studies have been conducted * ** to demonstrate a correlation between test performance and predictability of job performance, and the statistics concerning the test as used in each of the nineteen relevant job categories [i.e., those other than golf pro] clearly showed adverse impact on Blacks." (Appellant's Brief at 22-23.) In effect, Cooper contends that class relief automatically flows from the City's failure to conduct a study of the Otis test's predictive integrity prior to its implementation. Even assuming the record supports a finding that use of the test adversely affects blacks across the board, Cooper's argument fails. He labors under a misapprehension of the law. There is no requirement that prior to implementation of an intelligence test as an employment criterion the employer must validate its ability to forecast job performance. Rather, one plaintiff shows a discriminatory effect, the burden shifts to defendant to prove the test's

validity. Where, as in this case, the plaintiff contends that a test serves to discriminate in 20 job categories, it would be unreasonable to require the employer, in a single law suit, to show that the test accurately predicts performance in each. As the district court concluded, the factual issues are too diverse to warrant class treatment.

[5] (3) Finally, Cooper contends that, since the City has disregarded certain instructions accompanying the Otis class relief is proper. The Manual of Instructions to the Otis test states in effect that the tester should not expect the same score from one who is culturally or educationally deprived as from one who is culturally or educationally enriched. The City admits that when considering a black applicant it does not consider that blacks are often deprived in these respects. However, failure to consider this alleged inequality among applicants does not relate to the class action issue. The law does not require lower standards of employment for blacks. If the test is substantially related to the demands of the job and no black can pass the test, an employer need not hire any blacks. Again the issue distills into whether one's performance on the Otis test is substantially related to his performance in each of the 20 job categories under scrutiny. As we have said, it would be inappropriate to require the City in a single unit to substantiate the test's relationship to all 20 of the job classifications.

In view of the foregoing considerations, we affirm the district court's judgment that Cooper not be allowed to maintain a class action challenging the 19 job categories other than that of golf pro.

II. Back Pay and Individual Injunctive Relief.

The district judge held that the Otis test disqualified a disproportionate number of blacks seeking employment as golf pros and that the test did not bear a substantial relationship to the applicant's performance in that job. Accordingly, he enjoined use of the test with respect to the hiring of City golf pros. Neither Cooper nor the City contests that holding. Cooper does complain of the district court's refusal to award him back pay and of the court's failure to order the City to hire him for the next available golf pro position.

[6] In refusing back pay, the district court reasoned:

"Because of the insufficiency of the evidence produced by and on behalf of [Cooper], the court is unable to hold that he would have been employed in 1969 had the City not relied on the results of the Otis Test in considering his application. In other words, the evidence simply does not support a conclusion that, had the Otis Test not been used, he would have been the most qualified applicant for the position (since there was only one vacancy to be filled)."

(Emphasis in original.) The judge seemingly denied individual injunctive relief on the same rationale. While it is true that, since there was only one job opening at the time Cooper sought employment in 1969, he is entitled to back pay only if he was the most qualified applicant, the district court erred in placing the burden of proof on Cooper. We have already determined that the City's discrimination against him was not intentional. In such circumstances, Cooper is entitled both to back pay and individual injunctive relief unless the City can show by clear and convincing evidence that he would not have been hired even absent the discriminatory testing requirement. See Rolfe v. County Board of Education, 6 Cir. 1968, 391 F.2d 77, 80; Hill v. Franklin County Board of Education, 6 Cir. 1968, 390 F.2d 583, 585; Wall v. Stanley County Bd. of Ed., 4 Cir. 1967, 378 F.2d 275; Smith v. Board of Education, 8 Cir. 1966, 365 F.2d 770; Williams v. Kimbrough, W. D.La., 295 F.Supp. 578, aff'd 5 Cir. 1969, 415 F.2d 874.

3

It was in 1969 that Cooper applied for the job and was required to take the Otis test. At that time the City imposed four requirements for employment as a golf pro other than a satisfactory test score: The applicant must (1) be beween the ages of 25 and 40; (2) have at least 5 years' experience as a golf pro or as an assistant golf pro; (3) possess Class A membership in the PGA, or eligibility therefor; and (4) successfully complete an oral interview. On remand the City must prove by clear and convincing evidence that, in the light of the numerated qualifications, Cooper would not have been

Since there was but one job opening at the time Cooper applied for the job in 1969, the City's burden, in proving that Cooper would not have been hired anyway, is to show that Cooper was not the most qualified applicant.

entitled to the job even had there been no requirement to take and pass the Otis test. That is, the City must show that the person actually hired was on the whole better qualified for the job.

On this appeal the City contends that, in 1969, Cooper did not meet even the minimum qualifications because he lacked the requisite 5 years' experience as a golf pro or as an assistant golf pro. Assuming that Cooper did not have such experience (the Record is unclear), it is for the district court to determine whether that factor would have absolutely disqualified Cooper. If, for example, the person actually hired for the position in 1969 did not possess the requisite 5 years' experience, or if any other applicant deemed qualified and allowed to compete for the position lacked that experience, then of course a showing that Cooper did not have such experience would not satisfy the City's burden of proof.

III. Attorneys' Fees.

[7] Ordinarily, whether to award attorneys' fees is in the sound discretion of the trial judge, and a denial of attorneys' fees is overturned only upon a showing of abuse discretion. However, in Newman v. Piggie Park Enterprises, Inc., 1968, 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263, the Supreme Court narrowed the trial judge's discretion:

"If success plaintiffs were routinely forced to bear their own attorneys' fees, few aggrieved parties would be in a position to advance the public interest by invoking the injunctive powers of the federal courts. Congress therefore enacted the provision for counsel fees-not simply to penalize litigants who deliberately advance arguments they know to be unenable but, more broadly, to encourage individuals injured by racial discrimination to seek judicial relief under Title II.

"It follows that one who succeeds in obtaining an injunction under that Title should ordinarily recover attorney's fee unless special circumstances would render such an award unjust."

Admittedly, Newman involved a suit brought under a civil rights statute which makes specific allowance for attorneys' fees. But in Lee v. Southern Home Sites Corp., 5 Cir. 1970, 429 F.2d 290, this Court extended the Newman doctrine to section 1982 suits. There is no relevant distinction between a section 1982 suit and a section 1981 suit such as this one. See Jones v. Alfred H. Mayer Co., 1968, 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189. Moreover, in Lee this Court said that, when a court refused attorneys' fees in a 1982 suit (and by analogy in a 1981 suit), it must set out the findings of fact and grounds upon which its refusal rests.

If on remand the district court cannot articulate specific and justifiable reasons for its denial of attorneys' fees, it should make a reasonable award.

CONCLUSION

The judgment below is affirmed insofar as the district court narrowed the class of plaintiffs to all present and potential black applicants for the position of City golf pro who were or will be required to take and pass the Otis test as a prerequisite to employment. We remand this case to the district court for the City to undertake to prove by clear and convincing evidence that at the time Cooper sought employment in 1969 he would not have been hired even absent the testing requirement. If the City fails its burden of proof the district court should award back pay and individual injunctive relief. If on remand the district court should continue in its refusal to award attorneys' fees, it is instructed to articulate specific reasons for such action. In light of this opinion the district court should also feel free to reassess costs. Remanded with instructions.

On petition for rehearing and petition for rehearing en banc

PER CURIAM:

The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied.

United States District Court, N. D. California-October 19, 1972

No. C-71-1166

LA RAZA UNIDA ET AL., PLAINTIFFS,

V.

JOHN A. VOLPE ET AL., DEFENDANT.

Action by private citizens against Secretary of Transportation, California Highway Department, California Department of Public Works and chief highway engineer of the state of California, to enjoin construction of state highway project. The injunction was granted, 337 F.Supp. 221. On motion for award of attorneys' fees and expert witness fees, the District Court, Peckham, J., held that where successful action resulted in the effectuation of strong public policies of environmental protection and housing assistance, numerous people received benefits from the litigation, only a private party could have brought the action and an award of attorneys' fees would come from the state treasury, District Court would exercise its equitable power to award attorneys' fees, even though statutes which were the basis of the injunctive relief did not specifically provide for awarding of fees. Motions granted.

1. FEDERAL CIVIL PROCEDURE 2737

While general American rule is that attorneys' fees are not ordinarily recoverable as costs, absent express statutory authorization, there are exceptions for situations in which "overriding considerations" indicate the need for such recovery.

2. FEDERAL CIVIL PROCEDURE 2737

The power to grant attorneys' fees springs from the equitable powers of the court.

3. FEDERAL CIVIL PROCEDURE 2737

In "obdurate behaviour" situation in which a defendant has behaved in bad faith, a court may use its equitable powers to assess attorneys' fees against the defendant.

4. FEDERAL CIVIL PROCEDURE 2737

In a "common fund" situation the courts may use their equitable powers and award attorneys' fees in order to insure that beneficiaries of litigation are the ones who share the expense and to prevent the unjust enrichment of "free riders."

5. FEDERAL CIVIL PROCEDURE 2737

When a plaintiff acts as "private attorney general," the courts may use their power to grant attorneys' fees offensively when necessary and appropriate to insure the effectuation of strong congressional policy. Department of Transportation Act, § 4(f), 49 U.S.C.A. § 1653 (f).

6. FEDERAL CIVIL PROCEDURE 2737

Whenever there is nothing in statutory scheme which might be interpreted as precluding it, a "private attorney general" should be awarded attorneys' fees when he has effectuated strong congressional policy which has benefited large class of people, and the necessity and financial burden of private enforcement are such as to make the award essential.

7. FEDERAL CIVIL PROCEDURE 2737

Whether to award attorneys' fees to "private attorney general" is addressed to sound discretion of the trial court and turns on such factors as the strength of the congressional policy, the number of people benefited by the litigants' efforts, and the necessity and financial burden of private enforcement.

8. FEDERAL CIVIL PROCEDURE 2737

Where successful action by private citizens to enjoin construction of proposed state highway project resulted in the effectuation of strong public policies of environmental protection and housing assistance, numerous people received benefits from the litigation, only a private party could have brought the action and an award of attorneys' fees would come from the state treasury, district court would exercise its equitable power to award attorneys' fees, even though statutes which were the basis of the injunctive relief did not specifically provide for awarding of fees. Department of Transportation Act, 84(f), 49 U.S.C.A. § 1653 (f).

9. STATES 4.11

The state may no more immunize the individual from costs incident to issuance of an injunction than it may insulate him from the injunction itself.

10. FEDERAL CIVIL PROCEDURE 2737

Sovereign immunity did not bar award of attorneys' fee against chief engineer of state highway department in action by private citizens to enjoin the construction of state highway project. U.S.C.A.Const. Amend. 11; Department of Transportation Act § 4(f), 49 U.S.C.A. § 1653 (f); West's Ann. Cal. Gov.Code, § 825 et seq.

11. FEDERAL CIVIL PROCEDURE 2737

Congressional silence is not bar to awarding of attorneys' fees as court possesses within its equity jurisdiction the power to award fees.

12. FEDERAL CIVIL PROCEDURE 2741

Where affidavits of private citizens' expert witneses were helpful to the court and were crucial part of the citizens' presentation in action to enjoin construction of state highway project, the citizens, who prevailed, were entitled to reimbursement from the state for their expert witness fees. U.S.C.A. Const. Amend. 11; Department of Transportation Act, § 4(f), 49 U.S.C.A. § 1653 (f); West's Ann. Cal.Gov.Code, § 825 et seq.

J. Anthony Kline, Ellen Cummings, Public Advocates, Inc., San Francisco, Cal., for plaintiffs.

James L. Browning, Jr., U.S. Atty., Francis B. Boone, Asst. U.S. Atty., San Francisco, Cal., Harry S. Fenton, Robert F. Carlson, Kingsley T. Hoegstedt, Sacramento, Cal., John P. Horgan, Norval Fairman, Robert R. Buell, Donald M. Velasco, San Francisco, Cal., for defendants.

MEMORANDUM OF DECISION

PECKHAM, District Judge.

Plaintiffs in this environmental protection and housing assistance case originally brought suit to enjoin the construction of California Highway Project 238. The injunction was granted on the grounds that the defendants failed to comply with 84(f) of the Department of Transportation Act of 1966 and various sections of 23 U.S.C. dealing with housing displacement and relocation. Plaintiffs now move for the awarding of attorneys' fees, against defendants, the California Highway Department, California Department of Public Works, and J. A. Legarra, Chief Highway Engineer, State of California, in his individual and representative capacity.

[1] While the general American rule is that attorneys' fees are not ordinarily recoverable as costs absent an express statutory authorization, the courts have developed exceptions to this rule for situations in which "overriding considerations" indicate the need for such a recovery. Mills v. Electric Auto-Lite, 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970). The statutes which were the basis of the relief on the merits in La Raza do not specifically

1 See La Raza Unida, et al. v. Volpe, et al., 337 F.Supp. 221 (N.D.Cal.1971). Several commentators have argued for either a major revision or an outright rejection of this rule. See Ehrenzweig, "Reimbursement of Counsel Fees and the Great Society," 54 Calif.L.Rev. 792 (1966); Juenzel, "The Attorney's Fee: Why Not a Cost of Litigation?" 49 Iowa L.Rev. 75 (1963); McCormick, "Counsel Fees and Other Expenses of Litigation as an Element of Damages," 15 Minn. L.Rev. 619 (1931); Stoebuck, "Counsel of Fees Included in Costs: A Logical Development," 38 U.Colo.L.Rev. 202 (1966).