Brandenburger v. Thompson

494 F.2d 885

Opinions

OPINION

EUGENE A. WRIGHT, Circuit Judge:

Brandenburger appeals from a denial of his motion for reasonable attorneys’ fees following the entry of a consent judgment. We reverse and remand.

In Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), the Supreme Court ruled unconstitutional state statutes denying welfare benefits to residents who had not resided within the state for at least one year immediately preceding their application for assitance. Two years later, in 1971, Hawaii established as a condition of eligibility for state welfare benefits a one-year durational residency requirement substantially identical to those struck down in Shapiro. Relying on Shapiro, Brandenburger brought this suit under 42 U.S.C. § 1983, for himself and all others similarly situated, challenging the constitutionality of the Hawaii statute and seeking injunctive relief against the defendant, the Director of Hawaii’s Department of Social Services. Prior to the entry of judgment, he also moved for an award of reasonable attorneys’ fees relying on the dual bases of Hawaii’s alleged bad faith and the “private attorney general” doctrine.

Prior to trial, the defendant abandoned his position and stipulated to judgment in favor of plaintiff. Plaintiff thereafter moved for attorneys’ fees, the question was reserved for decision and, after a hearing, the motion was denied. The district judge filed no written opinion, but his oral comments reveal two bases for his decision. First, he believed that he should not award attorneys’ fees to the plaintiff since the defendant had not acted in bad faith. Second, he believed that an award of attorneys’ fees to Brandenburger would be improper since he was represented, without charge, by the American Civil Liberties Union.¹ *****Brandenburger’s appeal is from that portion of the judgment denying his motion for reasonable attorneys’ fees.²

I.

Although American courts historically have not awarded attorneys’ fees to successful litigants without explicit statutory or contractual authority, see Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717-718, 87 S.Ct. 1404, 18 L.Ed.2d 475 (1967); Ehrenzweig, Reimbursement of Counsel Fees in the Great Society, 54 Calif.L.Rev. 792, 793 (1966),³ federal courts have equitable power, in the absence of legislation, to award attorneys’ fees in the interest of justice. Hall v. Cole, 412 U.S. 1, 4-5, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973); Mills v. Electric Auto-Lite Co., 396 U.S. 375, 391-392, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970). Thus, even though § 1983 does not explicitly authorize an award of attorneys’ fees, the coui't’s equitable power may be invoked to make such an award in appropriate cases. See e. g., Sims v. Amos, D.C., 340 F.Supp. 691 (Three-Judge Court, per curiam), aff’d mem. Amos v. Sims, 409 U.S. 942, 93 S.Ct. 290, 34 L.Ed.2d 215 (1972) (§ 1983); cf. Knight v. Auciello, 453 F.2d 852 (1st Cir. 1972) (§ 1982); Lee v. Southern Home Sites Corp., 444 F.2d 143 (5th Cir. 1971) (§ 1982)⁴ And an award of attorneys’ fees assessed against a state official acting in his or her official capacity is not proscribed by the Eleventh Amendment. Sims v. Amos, supra, 340 F.Supp., at 694 n. 8.

We next consider whether the instant case is an appropriate one to exercise the court’s power to award attorneys’ fees. Plaintiff argues that it is, relying on two bases. First, he argues that Hawaii acted in bad faith. Second, he contends that attorneys’ fees should be awarded since he acted as a “private attorney general.” Since we agree with plaintiff’s latter contention, we need not reach and do not consider the issue of bad faith.

Under the “private attorney general” doctrine, an award of attorneys’ fees should be made to a litigant who (1) furthers the interests of a significant class of persons by (2) effectuating a strong congressional policy. The award serves the purpose of encouraging such public-minded suits. See Sims v. Amos, supra, at 694-695; Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968); Miller v. Amusement Enterprises, Inc., 426 F.2d 534 (5th Cir. 1970); Lee v. Southern Home Sites, supra; La Raza Unida v. Volpe, 57 F.R.D. 94 (N.D.Cal.1972). Under this doctrine, the good or bad faith of the defendant is irrelevant. Sims v. Amos, supra 340. F. Supp. at 694-695.

The instant case falls squarely within the ambit of the “private attorney general” doctrine. The plaintiff benefited a significant class, persons who are both potential welfare recipients and interstate travelers, by vindicating the federally protected right of interstate travel free from the forfeiture of welfare benefits. And, since § 1983 expresses a strong policy of vindicating federal constitutional rights against infringement by state officials, id. at 694, the plaintiff furthered congressional policy by challenging the Hawaii statute.

Because the plaintiff met the requirements of a “private attorney general,” the district court should have granted his motion for attorneys’ fees.⁵ While an award of attorneys’ fees is generally discretionary, see e. g., Hall v. Cole, supra, 412 U.S. at 15, 93 S.Ct. 1943, when a litigant qualifies as a “private attorney general,” “the award loses much of its discretionary character and becomes a part of the effective remedy a court should fashion to encourage public-minded suits . . . and to carry out congressional policy.” Sims v. Amos, supra 340 F.Supp. at 694, citing Mills v. Electric Auto-Lite Co., supra; Lee v. Southern Home Sites, supra. Cf. also, Anderson v. Pass Christian Isles Golf Club, Inc., 488 F.2d 855, 858 (5th Cir. 1974). Therefore, a remand on the issue whether an award should be given in this case is unnecessary.

II.

The district court’s second basis for denying plaintiff’s motion for attorneys’ fees was that they should not be awarded to a litigant who was represented without charge by a public interest group, here the American Civil Liberties Union. But the fact that the plaintiff was not obligated to pay the ACLU for its services is not a bar to an award of attorneys’ fees. All that is required is the existence of an attorney-client relationship. See Miller v. Amusement Enterprises, Inc., supra.6

The policy underlying the “private attorney general” doctrine supports this conclusion. It is true that the prospect of attorneys’ fees does not discourage the litigant from bringing suit when legal representation is provided without charge. But the entity providing the free legal services will be so discouraged, and an award of attorneys’ fees encourages it to bring public-minded suits when so requested by litigants who are unable to pay. Thus, an award of attorneys’ fees to the organization providing free legal services indirectly serves the same purpose as an award directly to a fee paying litigant. See Note, Awards of Attorneys’ Fees to Legal Aid Offices, 87 Harv.L.Rev. 411 (1973). Of course, the award should be made directly to the organization providing the services to ensure against a windfall to the litigant. Miller v. Amusement Enterprises, Inc., supra 426 F.2d at 539.

In so far as the judgment of the district court did not award attorneys’ fees to the plaintiff, it is reversed. The case is remanded to the district court for a determination of the amount of a reasonable fee to be paid to the ACLU.⁷

Reversed and remanded.

1 . It should be noted that the district court’s action -was. taken prior to the Supreme Court’s affirmance of Sims v. Amos, 340 F. Supp. 691 (Three-Judge Court, per curiam), aff’d mem., Amos v. Sims, 409 U.S. 942, 93 S.Ct. 290, 34 L.Ed.2d 215 (1972). The district court did not consider the “private attorney general” doctrine.

2 . The judgment was entered and the motion for attorneys’ fees was denied by a single-judge district court. Therefore, this court has jurisdiction on appeal pursuant to 28 U.S.C. § 1291. Because the plaintiff sought to enjoin enforcement of a state statute on constitutional grounds, a three-judge court was convened under 28 U.S.C. § 2282. The court then ordered the defendant to show cause why its defense was not precluded under prior decisions thereby eliminating the need for a three-judge court under Bailey v. Patterson, 369 U.S. 31, 33, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962). The state then stipulated to judgment. Thereafter, all actions taken by the court, including the entry of judgment, were by the district judge purporting to act as a single-judge district court. While there was no formal dissolution of the three-judge court, it is clear from the record that the court and the parties considered the case to have been remanded to the jurisdiction of the single-judge district court. We treat the case accordingly.

3 . For analysis and criticism of this historical doctrine, see Stoebuck, Counsel Fees Included in Costs: A Logical Development, 38 U. Colo.L.Rev. 202 (1966) ; Kuenzel, The Attorneys’ Fee: Why Not a Cost of Litigation?, 49 Iowa L.Rev. 75 (1963).

4 . It is clear, however, that federal courts do not have the power to award attorneys’ fees in every suit brought under a federal statute. See, e. g., Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 87 S.Ct. 1404, 18 L.Ed.2d 475 (1967) (Lanham Act).

5 . Two aspects of this case demonstrate the need for such an award. While the individual plaintiff vindicated the rights of a group of persons, his own monetary interest is not sufficiently large to provide an incentive to bring the suit. See Sims v. Amos, supra, at 695. Also, Hawaii’s attorney general, normally the person called upon to act pro bono publico, was unavailable as he was representing the defendant. But while these elements of the case render it acute for an award of fees, neither is necessary to invoke the “private attorney general” doctrine under its purpose. See Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S. Ct. 964, 19 L.Ed.2d 1263 (1968), and Miller v. Amusement Enterprises, Inc., 426 F.2d 534 (5th Cir. 1970) (state attorney general not aligned with defendant) ; A. C. Becken Co. v. Genex Corp., 314 F.2d 839 (7th Cir.), cert, denied, 375 U.S. 816, 84 S.Ct. 49, 11 L.Ed.2d 51 (1963), and other cases compiled in Comment, Attorneys’ Fees in Individual and Class Action Antitrust Litigation, 60 Calif.L.Rev. 1656, 1679 (1972) (attorneys’ fees awarded in antitrust suits to encourage private enforcement regardless of other financial incentives, including treble damages).

6 . Miller involved a suit under the Civil Rights Act of 1964 where there is statutory authority for an award of attorneys’ fees. But the discussion of awards in cases where the litigant is not obligated to pay for the legal services is equally applicable here.

7 . In determining what is a reasonable fee, the district judge might consider the factors referred to in recent cases from other circuits. See Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir., January 21, 1974) ; Lindy Bros. Bldrs. Inc. v. American R. & S. San. Corp., 487 F.2d 161 (3rd Cir. 1973).