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2d 303
Thomas Miller, Asst. Atty. Gen., Boston, Mass., with whom Francis X.
Bellotti, Atty. Gen., Boston, Mass., was on brief, for defendantsappellants.
Kenneth H. Tatarian, Boston, Mass., with whom Morris M. Goldings, and
Mahoney, Hawkes & Goldings, Boston, Mass., were on brief, for
plaintiffs-appellees.
Before COFFIN, Chief Judge, BOWNES, Circuit Judge, PETTINE,
District Judge.*
BOWNES, Circuit Judge.
of property without due process of law). See Olitsky v. O'Malley, 597 F.2d 295
(1st Cir. 1979). The district court dismissed the claim against appellants for
lack of justiciability. We affirmed. Olitsky v. O'Malley, supra, at 298-299.1
2
The issue is whether the district court abused its discretion by refusing to grant
appellants a reasonable attorney's fee.
The Supreme Court has recently explored in depth the basis and criteria for an
award of attorney's fees to a prevailing defendant in a civil rights action brought
under section 706(k) of title VII of the Civil Rights Act of 1964, 42 U.S.C.
2000e-5(k).2 Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694,
54 L.Ed.2d 648 (1978). In adopting the test of whether the action had been " '
"unfounded, meritless, frivolous or vexatiously brought," ' " advanced by the
Third and Second Circuits, the Court said:
6
Hence,
a plaintiff should not be assessed his opponent's attorney's fees unless a court
finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff
continued to litigate after it clearly became so. And, needless to say, if a plaintiff is
found to have brought or continued such a claim in Bad faith, there will be an even
stronger basis for charging him with the attorney's fees incurred by the defense
(footnote omitted, emphasis in original).
7
Our review of the pleadings and the record convinces us that the district court
did not abuse its discretion in denying appellants attorney's fees; the action
against them was not frivolous, unreasonable, groundless or vexatiously
11
12
Affirmed.
We also affirmed the findings and rulings of the district court that there were no
first amendment violations by the other defendants and that the "mingling"
regulations were not unconstitutional. Olitsky v. O'Malley, 597 F.2d 295 (1st
Cir. 1979)
"In any action or proceeding under this subchapter the court, in its discretion,
may allow the prevailing party, other than the Commission or the United
States, a reasonable attorney's fee as part of the costs, and the Commission and
the United States shall be liable for costs the same as a private person."