Bergman v. United States

844 F.2d 353, 1988 WL 33532

• Court: Court of Appeals for the Sixth Circuit
• Decided: April 18, 1988
• Docket: No. 87-1009
• Status: Published

Opinions

CORNELIA G. KENNEDY, Circuit Judge.

Plaintiffs-appellants Walter Bergman and James T. Drummond¹ appeal the judgment of the District Court denying their claim for attorneys’ fees against defendant-appellee the United States in this action under the Federal Tort Claims Act, 28 U.S. C. § 2671 (“FTCA”). The plaintiffs assert that they are entitled to fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”).

Plaintiff Walter Bergman was beaten by a mob in Anniston, Alabama during the Freedom Rides, a civil rights protest, in 1961. Sixteen years later, in 1977, Mr. Bergman and his wife, Frances Bergman, sued the United States under the FTCA, contending that agents of the FBI could have taken steps to prevent the mob violence but failed to do so.

During pretrial proceedings the United States refused to comply with a discovery order to produce certain documents that contained information about confidential informers and that would disclose their identities.² The United States offered to present the documents for in camera inspection, but the District Court determined that such inspection would not be practical and would not be fair to the plaintiffs. Accordingly, the District Court, pursuant to Fed.R.Civ.P. 37(b), sanctioned the United States by foreclosing it from controverting the plaintiff’s evidence or proceeding with its defense.

The plaintiffs prevailed on their FTCA claim, and the District Court awarded them $50,000 in damages. Plaintiffs then sought attorneys’ fees against the government. Although the FTCA does not provide for attorneys’ fees, the plaintiffs argued that they were entitled to fees under the EAJA. The District Court held that the plaintiffs were not entitled to attorneys’ fees under either 42 U.S.C. § 1988 or under common law principles, two bases available under the EAJA. Bergman v. United States, 648 F.Supp. 351 (W.D.Mich.1986). Plaintiffs appeal.

I.

The general rule is that “[e]xcept to the extent it has waived its immunity, the Government is immune from claims for attorney’s fees.” Ruckelshaus v. Sierra Club, 463 U.S. 680, 685, 103 S.Ct. 3274, 3278, 77 L.Ed.2d 938 (1983). It is clear that the FTCA does not waive the United States’ immunity from attorneys’ fees. Joe v. United States, 772 F.2d 1535 (11th Cir.1985) (per curiam). However, the EAJA sets up a limited exception to the general rule of immunity: “The United States shall be liable for such fees and expenses to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such an award.” 28 U.S.C. § 2412(b) (emphasis added). The plaintiffs argue that, pursuant to section 2412(b), they are entitled to attorneys’ fees from the United States under the terms of 42 U.S.C. § 1988,³ and under the common law principle that a court may award attorneys’ fees where the opposing party has acted in bad faith or has willfully disobeyed a court order.

The plaintiffs’ second amended complaint alleged that individual defendants had violated 42 U.S.C. §§ 1983, 1985(3), and 1986, (collectively “civil rights claims”), and requested both monetary and declaratory relief. Although their action against the United States was brought under the FTCA, and not the civil rights laws, the plaintiffs contend that they prevailed against the United States on their section 1986 claim, arguing that it was based on the same nucleus of common fact that underlay their FTCA claim, which they won. They also point out that the District Court stated in a previous opinion that “by so failing to prevent the violation of 42 U.S.C. § 1985(3), the government violated § 1986.” Bergman v. United States, 565 F.Supp. 1353, 1396 (W.D.Mich.1983).

The United States contends that the plaintiffs’ argument has two flaws. First, it argues that the plaintiffs did not prevail on their civil rights claims; the District Court never even addressed the merits of those claims. At the time the District Court made the statement upon which the plaintiffs rely, the civil rights claims had already been severed from the FTCA claim pursuant to a mistrial. The District Court made the statement in the context of supporting its finding of negligence under Alabama law. Second, even had the plaintiffs prevailed on their civil rights claims against the individual defendants, that would not entitle them to. attorneys’ fees from the United States. Since the civil rights statutes “by their terms, do not apply to actions against the United States,” the plaintiffs could not have prevailed on a civil rights claim against the United States. Hohri v. United States, 782 F.2d 227, 245 n. 43 (D.C.Cir.1986), vacated on other grounds, — U.S. —, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987). Since no cause of action against the United States existed under the civil rights statutes, the United States contends that it cannot be held liable for attorneys’ fees.

In Maher v. Gagne, 448 U.S. 122, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980) the Supreme Court held that a plaintiff can receive fees based on section 1988 even though the civil rights claim was never actually adjudicated, where the constitutional claim is substantial and is settled favorably to the plaintiff without adjudication. Id. at 132, 100 S.Ct. at 2576. However, we find that under Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) the United States cannot be liable for attorneys’ fees pursuant to section 1988 merely because its employees or agents could be liable under section 1988. In that case, the plaintiffs sued under section 1983 seeking damages against various state and local law enforcement officers, a city, and a county. They also sued two government officials in both their individual and official capacities. In addition they sued the Commonwealth of Kentucky, not for damages on the merits, but only for attorneys’ fees. The District Court dismissed the action against the Commonwealth, and subsequently the plaintiffs settled the case, preserving the right to seek fees and costs. The plaintiffs then moved under section 1988, asking for attorneys’ fees from the Commonwealth.

The Supreme Court, in a unanimous decision by Justice Marshall, held that the plaintiffs could not claim attorneys’ fees from the Commonwealth under section 1988. Id. at 170, 105 S.Ct. at 3108. The Court noted that the plaintiffs could not have maintained an action against the Commonwealth, nor against the officials in their official capacities, because they were protected by sovereign immunity. Therefore, the plaintiffs were not able to seek attorneys’ fees from the Commonwealth: “Where a defendant has not been prevailed against, either because of legal immunity or on the merits, section 1988 does not authorize a fee award against that defendant.” Id. at 165, 105 S.Ct. at 3105. The Court added:

Indeed, unless a distinct cause of action is asserted against the entity itself, the entity is not even a party to a personal-capacity lawsuit and has no opportunity to present a defense. That a plaintiff has prevailed against one party does not entitle him to fees from another party, let alone from a non-party. Section 1988 simply does not create fee liability where merits liability is nonexistent.

Id. at 168, 105 S.Ct. at 3106. The plaintiffs in the present case could not have sued the United States under the civil rights statutes. Furthermore, they did not even allege in their complaint that the United States violated any of the civil rights statutes. Since under Graham fee liability comes only with merits liability, the United States cannot be liable for the plaintiffs’ attorneys’ fees on the basis of section 1988.

The plaintiffs attempt to distinguish Graham in two ways. First, they argue that Graham does not apply because in that case the plaintiffs had only sued the individual defendants in their individual capacities, whereas in the present case, the plaintiffs have sued the individuals in both their individual and their official capacities. However, the plaintiffs are mistaken, the individuals in Graham were also sued in their official capacities. Id. at 161-62, 169, 105 S.Ct. at 3103-04, 3107. Furthermore, the plaintiffs would have been unable to prevail against the individuals in their official capacities because they too would be immune. Clark v. Library of Congress, 750 F.2d 89, 102-04 (D.C.Cir.1984) (sovereign immunity bars suits for money damages against officials in their official capacities absent a specific waiver by the government).

Second, they point out that they requested not only monetary relief but also declaratory relief against the individual defendants. It is true that a suit against officials in their official capacities is in reality a suit against the United States, and that sovereign immunity ordinarily does not bar declaratory relief. In this way, then, it is possible that the United States could have been liable under a civil rights theory. However, this case does not present the sort of situation in which Maher found that fees should be awarded, where the constitutional claim is substantial and is settled favorably to the plaintiff without adjudication. First of all, the plaintiffs’ claim for declaratory relief was merely pro forma. The District Court never addressed their claim for declaratory relief and the plaintiffs did not press it. Furthermore, the plaintiffs’ civil rights claims against the individual defendants were dismissed pursuant to a stipulation. Any claims against the United States under the civil rights laws for declaratory judgment were simultaneously dismissed, and the plaintiffs clearly did not prevail on those claims.

II.

The plaintiffs’ second argument is that they are entitled to attorneys’ fees under 28 U.S.C. § 2412(b) pursuant to the common law principle that allows the awarding of attorneys’ fees against a party who willfully disobeys a court order.

The District Court considered this argument under two different common law principles. First, that a court may award fees when “the losing party has ‘acted in bad faith, vexatiously, wantonly, or for oppressive reasons,’ ” Alyeska Pipeline Co. v. Wilderness Soc’y, 421 U.S. 240, 258-59, 95 S.Ct. 1612, 1622, 44 L.Ed.2d 141 (1975), and second, that fees are appropriate when an opposing party has willfully disobeyed a court order. Id. at 258, 95 S.Ct. at 1622.

A.

As to the first principle, the United States failed to comply with a discovery order to produce specified documents. Instead the government submitted an ex parte letter to the Court signed by the Deputy Attorney General stating that the documents would not be provided to the plaintiffs because the Deputy Attorney General had determined that their release would be “inimical to the public interest.” Bergman, 565 F.Supp. at 1362. The plaintiffs argue that the United States’ actions in refusing to comply with the order demonstrate bad faith, and consequently it should be liable for attorneys’ fees.

The District Court reviewed the United States’ actions and found that it had acted in good faith in refusing to obey the court’s discovery order. 648 F.Supp. at 358. The bad faith exception to the general rule that each party bears its own costs allows attorneys’ fees only “in certain exceptional cases.” Shimman v. International Union of Operating Eng’rs, Local 18, 744 F.2d 1226, 1229 (6th Cir.1984) (en banc), cert. denied, 469 U.S. 1215, 105 S.Ct. 1191, 84 L.Ed.2d 337 (1985). Because an award of attorneys’ fees is extraordinary and punitive, standards for bad faith for purposes of awarding attorneys’ fees under the EAJA are stringent. Morley v. Brown, 605 F.Supp. 1468 (N.D.Ohio 1985). The bad faith inquiry turns on the party’s subjective bad faith. Sterling Energy Ltd. v. Friendly Nat’l Bank, 744 F.2d 1433, 1435 (10th Cir.1984). A finding as to bad faith is a finding of fact, to be reviewed under the clearly erroneous standard. International Union of Petroleum and Indus. Workers v. Western Indus. Maintenance, Inc., 707 F.2d 425, 428 (9th Cir.1983). The District Court, in determining that the United States had acted in good faith, reviewed the previous events, and its finding is not clearly erroneous. Even if the court’s finding as to bad faith were clearly erroneous, it would have been within its discretion to decline to award the plaintiff attorneys’ fees. Perichak v. International Union of Elec., Radio, and Mach. Workers, Local 601, 715 F.2d 78, 80 (3d Cir.1983). We do not find an abuse of discretion here.

B.

The District Court also refused to award the plaintiffs attorneys’ fees under the common law principle that a court may award fees where the opposing party has disobeyed a court order. The District Court, reviewing the cases that have awarded fees in such situations, noted that “[cjourts generally have employed this exception, however, to award fees as a sanction when they have cited a disobedient party for civil contempt of court. In this case, the Court never cited the United States for contempt, and thus cannot award plaintiffs their fees and expenses on that ground.” 648 F.Supp. at 359 (citations omitted). The plaintiffs argue that the District Court erred because there is no requirement that the party be cited for contempt before becoming liable for attorneys’ fees. This is correct; however, the District Court did not say that it was necessary to hold a party in contempt in order to award fees, it is clear from the court’s earlier discussion of fees that it understood that fees could be awarded whenever a party has disobeyed a court order. Id. at 358. Rather, the District Court was merely commenting that since it had not held the United States in contempt, the court could not award fees on the basis that it had held it in contempt.

The decision whether to award attorneys’ fees under this exception was in the discretion of the District Court, Donovan v. Burlington Northern, Inc., 781 F.2d 680, 682-88 (9th Cir.1986), and we hold that the District Court did not abuse its discretion in declining to award fees. As the United States points out, the District Court had previously imposed severe sanctions on the United States for its refusal to comply with the discovery order. 565 F.Supp. at 1373. The order required the production of information that would reveal the identity of confidential informants. The court weighed the government’s interest in protecting the safety of informants and continuing the unimpeded flow of information against the plaintiffs’ need for the information in order to prove liability.⁴ In ordering that the government could not controvert plaintiffs’ evidence or proceed with its defense except on statute of limitations grounds, the court enabled the plaintiffs to establish liability. The District Court chose not to impose the permissible additional sanction of attorneys’ fees. In determining that this additional penalty was not justified, it did not abuse its discretion.

Accordingly, the judgment of the District Court is AFFIRMED.

1 . James T. Drummond is the personal representative of the estate of Frances Bergman, deceased, who was plaintiff Walter Bergman's wife.

2 . We note that such an order has been held not to be an appealable collateral order. In re United States (Peck v. United States), 680 F.2d 9, 11-12 (2d Cir.1982); In re United States, 565 F.2d 19, 23 (2d Cir.1977), cert. denied, 436 U.S. 962, 98 S.Ct. 3082, 57 L.Ed.2d 1129 (1978).

3 . 42 U.S.C. § 1988 provides in pertinent part that "[i]n any action or proceeding to enforce a provision of sections 1981, 1982, 1983, and 1986 of this title, ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fees as part of the costs.”

4 . We cannot agree with the dissent that the government does not have any interest in protecting an informant’s identity once he dies. Rather informants and potential informants may be justifiably concerned that disclosure of an informant’s identity after his death could jeopardize his family’s safety and his reputation, for our society does not regard informants fondly:

American society has always approved those who own up to their wrongdoing and vow to do better, just as it has admired those who come to the aid of the victims of criminal conduct. But our admiration of those who inform on others has never been as unambiguous as the majority suggests. The countervailing social values of loyalty and personal privacy have prevented us from imposing on the citizenry at large a duty to join in the business of crime detection. If the Court's view of social mores were accurate, it would be hard to understand how terms such as "stool pigeon," "snitch,” "squealer,” and "tattletale” have come to be the common description of those who engage in such behavior.

Roberts v. United States, 445 U.S. 552, 570-71, 100 S.Ct. 1358, 1369, 63 L.Ed.2d 622 (1980) (Marshall, J., dissenting).