Circuit
Judge (dissenting).
I must respectfully dissent from the conclusion reached by the majority. I do so primarily because it is self-evident from the record before us that the findings made by Judge Nealon in his carefully reasoned opinion are not “clearly erroneous.”
In Speyer, Inc. v. Humble Oil and Refining Company, 403 F.2d 766, 770 (3 Cir. 1968), cert. denied, 394 U.S. 1015, 89 S.Ct. 1634, 23 L.Ed.2d 41 (1969), Judge Aldisert recently reiterated the guidelines this Circuit should follow in reviewing findings of fact.
“In reviewing the decision of the District Court, our responsibility is not to substitute findings we could have made had we been the fact-finding tribunal; our sole function is to review the record to determine whether the findings of the District Court were clearly erroneous, i. e., whether we are ‘left with a definite and firm conviction that a mistake has been committed’. Eastern Express, Inc. v. Mack Warehouse Corp., 326 F.2d 554 (3 Cir. 1964); International Industries, Inc. v. Warren Petroleum Corp., 248 F.2d 696 (3 Cir. 1959), cert. denied, 355 U.S. 943, 78 S.Ct. 529, 2 L.Ed.2d 523 (1959); Williams v. Babcock & Wilcox Co., 262 F.2d 253 (3 Cir. 1959), cert. denied, 359 U.S. 969, 79 S.Ct. 880, 3 L.Ed.2d 836 (1959).” (Emphasis supplied.)
As the majority notes, it is most significant that Judge Nealon found the following:
“It may well be that the lawsuits against the delinquent operators would not have been started had not the pensioned miners group brought their actions against the United Mine Workers * * *, but it would be pure guesswork for me to so conclude on the basis of the evidence before me. * * * Their efforts may have been meaningful and commendable, but they did not rise to the level, in the suits before me, to justify an award of counsel fees to them out of the amounts recovered by the Trustees.” (101a-102a). (Emphasis supplied.)
Despite this definitive finding by the district court that there was insufficient evidence to justify a holding that intervenors’ actions were the cause of the creation of the “fund” in question, and despite Judge Nealon’s emphatic ruling that it would be “pure guesswork for me to so conclude on the basis of the evidence before me,” the majority nonetheless asserts that these findings are clearly erroneous. What the majority has done today amounts to a substitution of its findings for those made by the district court. The evidence presented is sparse, and this undoubtedly creates a situation wherein this Court reviewing the facts de novo, if that were our function, might conclude contrariwise to the district court, but even then such conclusion would have little support in the record.
The majority opinion sets out the facts briefly tracing the history of the Anthracite Health and Welfare Fund, and the circumstances surrounding the most unfortunate and substantial reductions in the pension payments received from that Fund by the retired miners. The efforts of the Pensioned Anthracite Coal Miners Protest Executive Committee and its counsel are detailed, and the actions of the Trustees in starting various suits, settling some, recovering judgments in others, etc. are described. It is undisputed that the proofs indicated that it was not until approximately March 1964, when the instant suit was commenced, that the Trustees vig*987orously began to pursue in court mine operators who were delinquent in their payments to the Fund, although several actions had been filed by the Trustees in the period 1954-1961. The majority, however, would have it that the suits filed by the Committee at approximately the same time were instrumental in bringing about recoveries to the Fund. Parallelism of actions in time is not proof that the actions of the Trustees and the Committee were interrelated; much less is it proof that the actions of the Committee caused the Trustees to act, or the “fund” to be created. Indeed, the time sequences of the actions of the Trustees and the Committee before us are not so coincidental as to overpower the conclusion that a cause and effect relationship was not present, and even less so, Judge Nealon’s finding, which is simply that there was insufficient evidence to show that these actions had a causal connection.
The Pensioned Anthracite Coal Miners Protest Executive Committee was established and began its efforts in 1961. In March 1963, the Committee’s first suit was filed, but though the defendant (the United Mine Workers of America) was successful in having it dismissed on jurisdictional grounds, the majority concludes “the record discloses that it was instrumental in prodding the cautious trustees into more aggressive action.” Later the majority goes on to argue that it was just prior to argument in this Court on the Committee’s appeal from the dismissal of its action that the suit against Honeybrook Mines, the instant action, was filed by the Trustees. Since the Committee’s suit had been dismissed, with this Court affirming the dismissal, 332 F.2d 373, I fail to see how Judge Nealon can be said to have been clearly erroneous in not finding that this Committee action was instrumental in creating the recoveries ultimately recouped by the Trustees. Not only was the union consistently successful in having the district court dismiss the Committee’s first action and in having that dismissal affirmed on appeal, but the Trustees were not even parties to that first suit. It is as though the majority seeks to draw an affirmative conclusion from a nonhappening; if jurisdiction had been sustained in the first suit brought by the Committee and if the Trustees had been party defendants, the majority’s conclusion might be more plausible. The importance of the second suit filed by the Committee to the majority’s theory is still more dubious because though it was filed in January 1965, (after the Trustees started suit) it was not until August 1968 that this Court decided that if the Committee’s complaint was amended, and if the Trustees were joined as parties, the Committee would then have a valid cause of action. 400 F.2d 103. On January 23, 1969, the Committee did finally amend its complaint naming the Trustees as defendants. However, by that time judgment had already been entered in this case and the Committee’s motion to direct payment of counsel fees had been filed on September 19, 1968, months before the Trustees were made defendants in the Committee’s second suit.
The first suit brought by the Committee (which, as has been stated, the majority feels “ * * * was instrumental in prodding the cautious trustees into more aggressive action”) was not filed until March 11, 1963, although Judge Nealon found that prior to the filing of the suit, “between August, 1962, and March 6, 1963, agreements for the payment of delinquent royalties were negotiated by the Trustees with twenty-three anthracite operators and approximately $4,279,146.81 in delinquencies have been collected as a result of these agreements.” Actually, the majority comment that “In all, judgments in excess of $1,900,000. have been obtained, settlements in excess of $800,000. have been accepted, and agreements have been made with many delinquent coal operators for the payment of approximately $4,280,00o.”,1 overlooks the true then existent situation that the agreements *988for the payment of the $4,280,000. were entered into prior to the filing of any suits by the Committee and that the judgments of $1,900,000., and the settlements of $800,000. were entered prior to the naming of the Trustees as defendants by the Committee.
In the instant cause in which the application for counsel fees before us was made, some fifteen months after this suit was commenced by the Trustees, the Committee intervened without filing any new pleading. Judge Nealon found that there was no evidence adduced or argument made by the Committee that the Trustees did not diligently prosecute this, and its companion actions. Although under Sprague v. Ticonic Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939), it is well settled that substance and not form is to govern whether or not counsel fees should be awarded out of a particular fund, the position of the Committee here as intervenors — who, the district court implicitly found, did not materially contribute to the plaintiffs’ efforts — takes on added significance in view of the circumstance that an award of fees to the intervenors out of the recoveries for the Anthracite Health and Welfare Fund would tax that Fund twice for counsel fees as the fees of the Trustees’ counsel are a legitimate expense of the Fund. On this phase of our problem it should be called to mind that when appellees’ counsel noted2 that there is no recorded decision granting counsel fees to intervenors in fund theory cases it is not just an assertion of form over substance; in intervenor situations such as this appeal it is generally not the intervenors but the plaintiff whose efforts have resulted in the creation of the fund.
In addition to my firm disagreement with the majority over Judge Nealon’s factual determinations, I have great difficulty as to the majority’s conclusion of law. The majority states the issue before us as follows:
“ * * * the issue on the fee application is * * * whether or not the committee, * * * by its activities helped to create a fund for the class for which it acted.” (Emphasis supplied.)
If the majority is of the opinion that the Committee is entitled to counsel fees simply for having “helped” to create the recoveries for the Fund, then this is a departure from existing case law and a wide expansion of the fund cases doctrine. In Powell, supra, urged on us by appellant and relied on by the majority, this Court held that recovery of fees was justified because plaintiff’s efforts “created” the fund in question. 267 F.2d 241, 245. In this Circuit's recent Kahan opinion, supra, also cited by the majority, the Court stated that a necessary prerequisite for recovery of counsel fees was a determination that it was “the plaintiff’s effort which caused others to benefit.” (Emphasis supplied.) But if as strongly appears, the majority is concluding as a matter of law that the Committee’s actions “produced”3 the recoveries involved, I completely disagree. The plaintiff Trustees, and not the intervening Committee “produced” the fund before us.
Judge Nealon’s opinion is sound, and I would affirm.
. At 982.
. Appellees’ brief, 12.
. At 987.