Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 74-C-2466 -- George N. Leighton, Judge.
Before Bauer and Cudahy, Circuit Judges, and Baker, District Judge.*fn*
This is an appeal from an order of the district court denying the plaintiffs attorneys' fees under Section 706(k) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k) and under the Civil Rights Attorneys' Fees Awards Act of 1976, 42 U.S.C. § 1988.
In this civil rights action filed in August, 1974, the plaintiffs sought to enjoin the defendants from administering an assistant principal examination, claiming that racial and ethnic discrimination existed in the test and excluded the plaintiffs from positions as principals. The district court dismissed the case and that order was appealed. While the case was pending on appeal the defendants withdrew the questioned examination and the appeal was dismissed as moot. Stewart v. Hannon, No. 80-1854 (7th Cir. Nov. 12, 1980) (order dismissing appeal as moot without prejudice to plaintiffs seeking attorneys' fees in the district court).
On return to the district court, Judge Leighton refused to award the plaintiffs fees because they were not prevailing parties. We affirm.
The plaintiffs are the Chicago High School Assistant Principals' Association and seven of its members who are certified teachers employed as assistant principals and who have unsuccessfully sought appointment to the position of principal in the Chicago public schools. Of the seven individual plaintiffs, five are black, one is Hispanic, and one, the plaintiff Ruth Stewart, is white.
The defendants are: members of the Board of Examiners of the Chicago Public School System, members of the Chicago Board of Education, and Education Testing Service, a not-for-profit New Jersey corporation, engaged in the business of educational and occupational test development and administration.
The plaintiffs first filed suit in August, 1974, claiming racial discrimination in the selection of Chicago school principals in violation of 42 U.S.C. §§ 1981, 1983, and 1985. In April, 1978, the plaintiffs amended their complaint to include Count II under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and Count III, a pendent state law claim. For relief, the amended complaint, in addition to damages and attorneys' fees, sought to enjoin the defendants from administering the 1978 Principals' Examination.
In June, 1978, by stipulation, the parties agreed that the Board of Education should proceed with the administration of the 1978 examination as scheduled. The plaintiffs withdrew their motion to enjoin the administration of that examination in exchange for which the Board of Education agreed to provide the plaintiffs with the test results within ten days of their receipt from Education Testing Service. The parties further agreed that the test results could not be used for thirty days after their receipt by the plaintiffs.
Upon receipt, preliminary results of the examination showed that the test had an adverse impact on the basis of race in excess of the "eighty percent rule"*fn1 as adopted by the Equal Employment Opportunities Commission, the Civil Service Commission, the Department of Labor, and the Department of Justice. Because the preliminary test results indicated a violation of the federal guideline, the defendants did not release the test results.
On February 2, 1979, on the defendants' motion, the district court dismissed the amended complaint with prejudice on the grounds that the plaintiffs had failed to state a cause of action upon which relief could be granted. Stewart v. Hannon, 469 F. Supp. 1142 (N.D.Ill.1979). On May 24, 1979, however, the district court granted the plaintiffs' motion for reconsideration with respect to the local defendants, ordered the defendants to provide the plaintiffs with the results of the 1978 examination pursuant to the order of June 23, 1978, and granted the plaintiffs leave to submit a proposed amended Count II based on the 1978 test results. The defendants provided the plaintiffs with the test results as ordered. On May 19, 1980, the district court vacated its earlier order granting the plaintiffs leave to submit an amended Count II and dismissed the suit because the plaintiffs lacked standing and because the amended Count II was not ripe for judicial determination. Stewart v. Hannon, No. 74 C 2466 (N.D.Ill. May 19, 1980). The plaintiffs filed a timely appeal which was dismissed as moot since the defendants had adopted a formal resolution not to utilize the results of the 1978 examination. However, the appeal was dismissed "without prejudice to plaintiffs-appellants seeking attorneys' fees in the district court." Stewart v. Hannon, No. 81-1682 (7th Cir. Nov. 12, 1980).
On December 17, 1980, subsequent to the dismissal of the appeal, the plaintiffs filed their petition for the award of attorneys' fees in the district court urging that they had achieved a successful outcome in the litigation. The district court held that the plaintiffs were not "prevailing parties" and therefore not entitled to fees on alternate grounds: first, the court lacked jurisdiction to consider the merits of amended Count II because the plaintiffs lacked standing to sue and their claim was not ripe for adjudication; and second, even assuming the cause was ...