dissenting:
For the reasons earlier noted, I respectfully dissent.
I of course concur, insofar as the majority now correctly realizes that it cannot assess a civil rights claimant’s attorneys personally with attorney’s fees for bringing the claimant’s suit and affording him his day in court. However, I dissent from the allowance of attorney’s fees against both the claimant and his attorney.
I further find the majority’s allowance of double cost for a frivolous appeal, Fed.R. App.P. 38, to be unconscionably wrong. Aside from the circumstance that one of the judges dissented from the affirmance — a dissent that by implication the majority finds to be “frivolous, unreasonable and without foundation” — , the appeal presented an instance almost unique in our case-law where the civil rights claimant’s attorney was assessed personally with the defendant’s entire attorney’s fees, an error that the majority recognizes by remanding for further findings on that issue. Thus, although the majority-recognizes that the appellant was entitled to some relief attainable only by an appeal, the majority characterizes that appeal as frivolous and assesses double costs!