On the heels of our dismissing the would-be Harris intervenors' appeal,1 defendant steel companies move for an award of reasonable attorneys' fees as part of their costs on the appeal. The 1964 Civil Rights Act, § 706(k), 42 U.S.C. § 2000e-5(k), provides:

In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs . . . .

The first question is whether the companies are "prevailing parties" in the statutory sense. Certainly they have prevailed on this appeal; the danger of resting our inquiry at procedural matters is, however, that piecemeal awards of fees to those who prevail in them may result in requiring the substantive prevailing party largely to subsidize his losing opponent's procedural victories. See Grubbs v. Butz, 179 U.S.App.D.C. 18, 19, 548 F.2d 973, 974 (1976). A motion to reconsider the substantive ruling, filed by the Harris group pursuant to a limited grant of intervention, pends below. It is itself only a portion of the main case, but its disposition will determine whether the Harris group has or has not "prevailed." We conclude that though the resolution of this substantive question whether paragraph 18(g) of Consent Decree I herein should be amended is as to the Harris group a "significant and discrete" proceeding,2 it would be incongruous finally to award fees in a portion of such a subsidiary matter at this time, when the ultimate substantive disposition even of this portion is unknown. Consideration of an award against the Harris group should abide the district court's decision of the group's motion to reconsider amendment of the decree. Should that motion be denied, the Harris group's attempt to participate in the cause will have ended unsuccessfully, and an award of attorneys' fees against it, including fees on this appeal, may be considered by the district court.

The second question is whether a different standard should be applied by the district court in awarding attorneys' fees to defendants than to plaintiffs under the Act. We write briefly for its guidance in this matter. We are aware that several circuits have, arguing policy grounds, adopted such a double standard, awarding fees against plaintiffs only in the event of frivolous or vexatious claims. See, e. g., United States Steel Corp. v. United States, 519 F.2d 359, 364-65 (3d Cir. 1975). We are unable to read the identical language as intended by Congress to produce different results depending upon whether the "prevailing party" is the plaintiff or the defendant.3 Instead, Congress by plain words rested such awards in the trial court's unfettered discretion. Had it wished that discretion to be exercised in a biassed rather than an impartial manner, it could easily have said so and still can. For the time being, "(t)his is a case for applying the canon . . . when the legislative history is doubtful, go to the statute." Greenwood v. United States, 350 U.S. 366, 374, 76 S. Ct. 410, 415, 100 L. Ed. 412 (1956).

Without prejudice to its renewal below at an appropriate time, the motion is DENIED.