National Ass'n v. Civiletti

609 F.2d 514, 197 U.S. App. D.C. 259, 1979 U.S. App. LEXIS 11600

• Court: Court of Appeals for the D.C. Circuit
• Decided: September 26, 1979
• Docket: Nos. 78-1639, 78-2039
• Status: Published

Opinions

Opinion for the court filed by Senior District Judge LARSON.

Dissenting opinion filed by Chief Judge J. SKELLY WRIGHT.

LARSON, Senior District Judge:

The above-captioned cases are consolidated on appeal because both raise the same central issue — that is, whether the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988, permits an award of fees against the United States. After careful deliberation, we conclude that the Awards Act does not operate as a waiver of sovereign immunity in this context. Therefore, as to the award of attorney’s fees by the' courts below, we reverse.

In Andrulis v. United States, plaintiffs Dr. Marilyn W. Andrulis and Andrulis Research Corporation (ARC) brought an action for damages, declaratory and injunctive relief in which they alleged, inter alia, that ARC had been unlawfully terminated from a program administered by the Small Business Administration (SBA) pursuant to § 2[8](a) of the Small Business Act, 15 U.S.C. § 637(a). Section 8(a) empowers the SBA to enter into contracts with other federal departments and agencies and to arrange, without competitive bidding, for the performance of these contracts by small business concerns. In their complaint, plaintiffs charged that ARC had been excluded from the § 2[8](a) program as a result of race and sex discrimination in violation of 42 U.S.C. §§ 1981, 1985(3) and 2000d.

On November 11,1977, the district court¹ issued a temporary restraining order in the Andrulis case. Thereafter, the SBA agreed to reinstate ARC as a participant in the § 2[8](a) program and the parties entered into a consent decree to that effect. Relying upon 42 U.S.C. § 1988, plaintiffs next applied for and were granted $18,739.00 in attorney’s fees and $1,135.03 in costs and disbursements. As to the award of attorney’s fees, the government appeals.

NAACP v. Civiletti, the second case before this Court, grew out of the fatal shooting in 1971 of Carnell Russ, a black male, by a white Arkansas law enforcement officer in the course of an arrest for a traffic violation. The officer was subsequently acquitted of manslaughter charges by a state court jury. After reviewing the transcript of the trial proceedings, as well as FBI reports, the Department of Justice decided not to prosecute anyone under the federal criminal civil rights statute, 18 U.S.C. § 242.

Following the decision not to prosecute, the NAACP and the Russ family brought suit under the Civil Rights Act, 42 U.S.C. §§ 1981 and 1985, challenging the adequacy of the federal investigation and the decision not to prosecute. In essence, plaintiffs claimed that the Justice Department had deferred unlawfully to the state proceedings pursuant to a policy established in 1959 by then Attorney General William Rogers of not following a state prosecution with a federal trial for the same act absent compelling reasons. Plaintiffs charged that this policy was unreasonable and racially discriminatory as applied in the Russ case.

In February 1977, while this suit was pending in the district court, Attorney General Griffin Bell issued a memorandum dealing with prosecutions of civil rights violations by the Justice Department. The memorandum indicated that the Department would henceforth evaluate “each and every allegation of a violation of the civil rights laws ... on its own merits" irrespective of related state enforcement action. Agreeing that the Bell memorandum effectively mooted plaintiffs’ claim, the parties to this action moved jointly to dismiss. The district court² granted the motion and plaintiffs subsequently sought and were awarded $26,300.00 in attorney’s fees and $612.25 in costs under 42 U.S.C. § 1988. The decision to award attorney’s fees is the subject of this appeal.

To recover attorney’s fees against the United States, a prevailing party must first surmount a formidable barrier, the doctrine of sovereign immunity. Under well established precedent, waivers of federal sovereign immunity “cannot be implied but must be unequivocally expressed.” United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1503, 23 L.Ed.2d 52 (1969). With respect to awards of attorney’s fees, the policy against implied waivers of federal sovereign immunity is embodied in 28 U.S.C. § 2412 ³ which has been consistently construed as immunizing the United States against attorney’s fees awards absent clear or express statutory authority to the contrary. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 267-68, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975); Fitzgerald v. United States Civil Service Commission, 180 U.S.App.D.C. 327, 330, 554 F.2d 1186, 1189 (D.C.Cir.1977); Natural Resources Defense Council, Inc. v. EPA, 168 U.S.App.D.C. 111, 113, 512 F.2d 1351, 1353 (D.C.Cir.1975). Such clear statutory authority may be found in language referring specifically to the liability of the United States. Thus, for example, Title II of the Civil Rights Act of 1964 provides:

“In any action commenced pursuant to this subchapter, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs, and the United States shall be liable for costs the same as a private person.” 42 U.S.C. § 2000a-3(b) (emphasis added).⁴

Alternatively, statutory authorization may be inferred by necessary implication from the statutory context in which a fee provision arises. This rationale was central to the First Circuit’s conclusion in Natural Resources Defense Council, Inc. v. EPA, 484 F.2d 1331 (1st Cir. 1973), that an award of attorney’s fees against the federal government was authorized under § 304(d) of the Clean Air Act, 42 U.S.C. § 7604. In that case, the government contended, inter alia, that a prevailing party in a citizen suit brought against the United States under § 304 of the Act could not obtain attorney’s fees from the federal government because the attorney’s fee provision of § 304(d),⁵ while providing for recovery by “any party,” did not specifically mention the United States by name. The First Circuit responded by noting that the government’s “reading of the statute is in sharp conflict with its plain words, which authorize the award against ‘any party’ and which, in § 304(a), specifically authorize suits with the United States as a party.” 484 F.2d at 1336, n.5. Because § 304(a) of the Clean Air Act specifically permitted suits against the Administrator of the EPA, the necessary implication was that Congress had intended the fee provision of § 304(d), which made express reference to § 304(a), to allow recovery against the United States.

In the context of the above discussion, the question before this Court is whether the Civil Rights Attorney’s Fees Awards Act of 1976 expressly authorizes the recovery of fees against the United States so as to overcome the barrier of sovereign immunity contained in 28 U.S.C. § 2412. As amended, 42 U.S.C. § 1988 provides in relevant part:

“In any action or proceeding to enforce a provision of sections [1981, 1985 or 2000d of Title 42] the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.”⁶

Appellees submit that the Awards Act by its plain language clearly and unequivocally permits awards of attorney’s fees against the United States by authorizing a fee award in “any action or proceeding” to enforce, inter alia, the Reconstruction Era Civil Rights statutes (42 U.S.C. §§ 1981-1983, 1985, 1986) and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d. Appellees find support for their position in Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978), in which the Supreme Court held the language of the Awards Act sufficient to overcome the immunity granted the states under the Eleventh Amendment to the United States Constitution. In so holding, the Court stated:

“The Act itself could not be broader. It applies to ‘any’ action brought to enforce certain civil rights laws. It contains no hint of an exception for State defending injunction actions; . . . .” 98 S.Ct. at 2575.

Similarly, appellees contend, the Awards Act contains no hint of an exception for the federal government.

In their reading of the Awards Act, we think appellees assign too much weight to Congress’ use of the phrase “any action.” That phrase has repeatedly appeared in attorney’s fees provisions, yet when in the past Congress has sought to override 28 U.S.C. § 2412 it has apparently considered it necessary to add a phrase explicitly establishing the liability of the United States.⁷ Generally, in construing a statute, we “are obliged to give effect, if possible, to every word Congress used.” Reiter v. Sonotone Corp., 442 U.S. 330 at 339, 99 S.Ct. 2326, 2331, 60 L.Ed.2d 931 (1979), citing United States v. Menasche, 348 U.S. 528, 538-39, 75 S.Ct. 513, 99 L.Ed. 615 (1955). Unless we are to regard the prior specific references to the United States inserted in fee provision statutes as mere surplusage, we must assume that Congress considered the “any action” language insufficient standing alone to waive federal sovereign immunity.

Considering that the Awards Act was enacted largely in response to the Supreme Court’s ruling in Alyeska Pipeline Service Co. v. Wilderness Society, supra8 and given the Alyeska mandate that, to overcome the barrier of 28 U.S.C. § 2412, fee awards against the United States must be “expressly provided for by statute,” 421 U.S. at 267-68, 95 S.Ct. 1612, it is difficult to believe that if Congress had intended to override § 2412, it would not have used language in the Awards Act at least as clear and unequivocal as it has used in the past to waive federal sovereign immunity. Cf. Shannon v. United States Department of Housing and Urban Development, 433 F.Supp. 249, 251 (E.D.Pa.1977), aff’d, 577 F.2d 854 (3d Cir.), cert. denied, 439 U.S. 1002, 99 S.Ct. 611, 58 L.Ed.2d 677 (1978) (“The unequivocal language to which the Court adverted in Alyeska and that contained in [prior statutes authorizing attorney’s fees awards against the United States] in stark contrast to the silence of the Fees Awards Act.”) Instead, the only specific waiver contained in the Awards Act occurs with respect to actions brought “by or on behalf of the United States . to enforce, or charging a violation of, a provision of” the Internal Revenue Code. See Aparacor, Inc. v. United States, 571 F.2d 552 (Ct.Cl.1978). While the liability of the United States for fees in tax cases might have been more specifically defined, Congress’ intent to waive federal immunity in the IRS suits is necessarily inferred since the United States and the taxpaying public are the only parties conceivably included within the provision, and the Awards Act allows an award to “the prevailing party, other than the United States.” No similar inference necessarily arises with respect to the remaining portions of the Act since the United States is neither the sole nor even the most likely defendant under the civil rights statutes in question.⁹

Considering the plain language of the Awards Act, we agree with the government that the most that can fairly be said is that the Act does not, on its face, preclude an assessment of attorney’s fees against the United States. As this Court indicated in Fitzgerald v. United States Civil Service Commission, supra, 180 U.S.App.D.C. at 330, 554 F.2d at 1189, however, the “absence of” language “contrary” to an award of attorney’s fees against the government is not enough. There “must be [an] unequivocally expressed” affirmative authorization to overcome 28 U.S.C. § 2412.

We find nothing in the Supreme Court’s opinion in Hutto v. Finney, supra, to contradict our reading of the Awards Act. In ruling that state and local governments are liable for attorney’s fees under the Act, the Court in Hutto v. Finney rejected the state’s argument that in order to abrogate the state’s immunity under the Eleventh Amendment, Congress must “enact express statutory language making the States liable.” 98 S.Ct. at 2576. The Court emphasized that the Act imposes attorney’s fees “as a part of costs” and that costs have traditionally been awarded against the states without regard to the Eleventh Amendment. Id. The Court then concluded:

“It is much too late to single out attorney’s fees as the one kind of litigation costs whose recovery may not be authorized by Congress without an express statutory waiver of the States’ immunity.” Id. at 2577-78.

In Hutto v. Finney, the Supreme Court considered the absence of an express statutory waiver no obstacle to an award of attorney’s fees against the states. The same cannot be said with respect to federal liability. In the case of the federal government, there is no long tradition of awarding costs as a matter of course. Instead, prior to the amendment of 28 U.S.C. § 2412 in 1966, costs were recoverable against the United States only if expressly provided for by statute.¹⁰ Moreover, § 2412 explicitly requires what the Supreme Court concluded the Eleventh Amendment does not — that is, an express abrogation of immunity from attorney’s fees awards.

In concluding that the Awards Act authorizes awards of fees against the states, the Court in Hutto v. Finney also relied on legislative history which focused directly on state liability and established unequivocally that Congress intended the Awards Act to waive state immunity. 98 S.Ct. at 2575-76. No such unequivocal indication of congressional intent exists with respect to the issue of federal immunity. The floor debate surrounding passage of the Awards Act contains indications of divergence of opinion among members of Congress as to the implications of the Act for federal liability.¹¹ The House and Senate Committee Reports on the attorney’s fee legislation contain no discussion of the question of federal liability. This silence appears significant since the Committee Reports are the references members of Congress are probably most likely to consult before casting their votes for an understanding of the purpose and effect of a bill. Mastro Plastics v. NLRB, 350 U.S. 270, 287-89, 76 S.Ct. 349, 100 L.Ed. 309 (1956); American Airlines, Inc. v. CAB, 125 U.S.App.D.C. 6, 365 F.2d 939 (D.C.Cir. 1966); Sutherland, Statutes and Statutory Construction, § 48.06, p. 203 (4th ed.). Had Congress intended to abrogate federal sovereign immunity for purposes of the Awards Act, some discussion of the matter by the respective House and Senate Committees responsible for the legislation in their Committee Reports might have been expected.

The only direct support found in either Committee Report for the proposition that the federal government might be liable for fees under the Awards Act is a citation to Hills v. Gautreaux, 425 U.S. 284, 96 S.Ct. 1538, 47 L.Ed.2d 792 (1976), a case involving a Title VI claim brought against the Secretary of Housing and Urban Development, which appears in the House Report as part of a string of cases cited as examples of instances in which government officials have been defendants in civil rights actions. H.Rep. No. 94-1558, 94th Cong., 2d Sess. at 7 (1976). This oblique reference to federal liability is, we think hardly sufficient to constitute the kind of clear statutory authorization required to waive federal sovereign immunity with respect to attorney’s fees awards.¹²

„ „ , „ . Glven.the ™P°rtance of attorneys fees in ensurinS enforcement of our civil rights laws> a strong policy argument can be made that the Awards Act should permit the recovery of attorney’s fees against the federal government.¹³ We leave for the Congress, however, the decision of whether to amend the Awards Act to explicitly allow recovery of fees against the United States, realizing that to do otherwise would be to exceed the limits of our interpretive function.

Insofar as they award attorney’s fees to appellees, the orders of the district courts are reversed.

1 . The United States District Court for the District of Columbia, the Honorable Gerhard A. Gesell presiding.

2 . The United States District Court for the District of Columbia, the Honorable Barrington Parker presiding.

3 . 28 U.S.C. § 2412 as presently drafted provides:

“Except as otherwise specifically provided by statute, a judgment for costs, as enumerated in section 1920 of this title but not including the fees and expenses of attorneys may be awarded to the prevailing party in any civil action brought by or against the United States or any agency or official of the United States acting in his official capacity, in any court having jurisdiction of such action.

Prior to 1966, neither attorney’s fees nor costs were recoverable against the United States unless such liability was expressly provided for by act of Congress. In 1966, 28 U.S.C. § 2412 was amended to permit the recovery of costs unless specifically forbidden by statute. Congress, however, explicitly excluded “the fees and expenses of attorneys” from the costs recoverable under § 2412 as a matter of course. Thus, with respect to attorney’s fees, § 2412 remains an explicit assertion of sovereign immunity. See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 267-68, 95 S.Ct. 1612, 1626, 44 L.Ed.2d 141 (1975) (“But § 2412 on its face, and in light of its legislative history, generally bars such awards, which, if allowable at all, must be expressly provided for by statute . . . .”)

4 .Other civil rights statutes contain similar language. See, e. g., 42 U.S.C. §§ 2000b-l, 2000e-5(k). In addition, a number of noncivil rights statutes explicitly provide for fee awards against the United States. See e. g., 5 U.S.C. § 552(a)(4)(E) (Freedom of Information Act); 15 U.S.C. § 2059(e) (Consumer Product Safety Act).

5 . Section 304(d) provided:

“The Court, in issuing any final order in any action brought pursuant to subsection (a) of this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate.

6 . In its entirety, this portion of 42 U.S.C. § 1988 reads as follows:

“In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of [the Education Amendment of 1972], or in any civil action or proceeding, by or on behalf of the United States of America to enforce, or charging a violation of, a provision of the United States Internal Revenue Code, or title VI of the Civil Rights Act of 1964 [42 U.S.C. § 2000d], the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.”

7 .See, e. g., 42 U.S.C. § 2000a-3(b) quoted supra and statutes cited at note 4 supra.

8 . See H.Rep. No. 94-1558, 94th Cong., 2d Sess. at 2 (1976); S.Rep. No. 94-1011, 94th Cong., 2d Sess. at 1 (1976), U.S.Code Cong. & Admin. News, p. 5908.

9 . Actions under the Reconstruction Era Civil Rights statutes are generally brought by individuals against other individuals or against state or local governments. See Hutto v. Finney, supra, 98 S.Ct. at 2575. On their face, these statutes contain no waiver of federal sovereign immunity nor do they appear to create a cause of action against the United States as an entity. With respect to Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972, at the time the Awards Act was passed Congress was uncertain whether a private action could even be brought under these statutes. Since that time, the Supreme Court has ruled that private causes of action are cognizable under Title IX. Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979).

10 . See discussion note 3 supra.

11 . Thus, for example, Congressman Railsback, the ranking Republican on the House Judiciary Committee which drafted the Awards Act, seemed to suggest that attorney’s fees might be recoverable against the United States when, in response to a question, he said:

“Mr. Speaker, if the gentleman will yield further, again it would be in the discretion of the court and nowhere in the bill do we prevent a school district or college from recovering reasonable attorneys fees, even in a case where the United States is a party plaintiff.” 121 Cong.Rec.H. 12164 (daily ed., October 1, 1976).

However, a contrary stance appears to have been taken by Congressman Rodino, the Chairman of the House Judiciary Committee, in his response to a request from Senator Kennedy for comments on an amendment offered by Senator Goldwater which would have subjected the United States to broad liability for attorney’s fees in tax cases:

“I fear that Senator Goldwater’s amendment . . . will jeopardize the Civil Rights Attorney’s Fees Awards Act of 1976. S. 2278 presently is a very narrow bill. ... It does not involve federal spending. . The Committee is presently studying other bills, like Senator Goldwater’s, which would go far beyond the ‘American Rule’ or the ‘private attorney general’ exception to it, and which may allow recovery against the Federal Government. We hope to take action next Congress on such bills.” 122 Cong.Rec.S. 16490 (daily ed., Sept. 23, 1976).

12 . Appellees in the Andrulis case offer two additional theories under which they submit the award of attorney’s fees in their case might be sustained. We find neither of these theories persuasive. Appellees rely first on the language of § 2[5](b) of the Small Business Act, 15 U.S.C. § 634(b) which provides that the Administrator of the SBA may “sue and be sued . . in any United States district court . . . .” Appellees submit that the “sue and be sued” clause, which places the SBA on a par with private parties for purposes of federal court litigation, Mar v. Kleppe, 520 F.2d 867, 870 (10th Cir. 1975), constitutes an “express statutory consent” satisfying the requirements of 28 U.S.C. § 2412.

We acknowledge that through the “sue and be sued” clause Congress has provided a limited waiver of the sovereign immunity generally afforded agencies of the federal government. However, it is well established that Congress in waiving governmental immunity has the power to waive immunity entirely or to waive it for some purposes and retain it for others. See Federal Housing Administration Region No. 4 v. Burr, 309 U.S. 242, 244, 60 S.Ct. 488, 84 L.Ed. 724 (1939), and cases cited therein. Congress made no mention of attorney’s fees in permitting the Administrator of the SBA to “sue and be sued.” Moreover, the clause was enacted at a time when, under the “American Rule,” the payment of attorney’s fees would not have been regarded as an ordinary incident of litigation. Thus it seems logical to assume that in subjecting the SBA to suit Congress did not expect the government to be liable for attorney’s fees. In any event, because § 2[5](b) of the Small Business Act neither directly nor expressly authorizes an award of fees, it appears inadequate on its face to override the general bar of 28 U.S.C. § 2412. See Cassata v. Federal Savings and Loan Insurance Corp., 445 F.2d 122 (7th Cir. 1971) (Section 2412 held to preclude the recovery of attorney’s fees from the FSLIC which, like the SBA, is a “sue and be sued” agency, see 12 U.S.C. § 1725(c)(4)).

In the alternative, appellees contend that an amendment to the Administrative Procedure Act (APA) enacted contemporaneously with the Awards Act contains an express waiver of sovereign immunity sufficient to sustain an award of fees in the instant case. The APA amendment provides:

“An action in a court of the United States seeking relief other than money damages shall not be dismissed nor relief therein be denied on the ground that it is against the United States . . .” 5 U.S.C. § 702.

Appellees submit that § 702 expressly waives sovereign immunity for relief against the United States, except for money damages, and the Awards Act provides a type of relief, attorney’s fees, which the Supreme Court has concluded do not constitute money damages. Hutto v. Finney, supra, 98 S.Ct. at 2576, n.24. Together, appellees claim, these statutes combine to expressly authorize the award of fees against the United States.

While imaginative, appellees’ argument is unconvincing. The legislative history surrounding passage of the APA amendment suggests that Congress sought by the amendment to achieve the narrow purpose of withdrawing the defense of sovereign immunity in actions against federal agencies in which “specific relief’ such as “an injunction, declaratory judgment, or writ of mandamus” not requiring any federal expenditure was s'ought. H.Rep. No. 94-1656, 94th Cong., 2d Sess. at 4-5 (1976). The amendment says nothing about the recovery of attorney’s fees ancillary to such an action and, indeed, the amendment itself provides that “Nothing herein . . . confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.” 5 U.S.C. § 702. Section 2412 forbids the award of attorney’s fees against the United States absent express statutory authorization. We do not view the APA amendment as satisfying or modifying in any way that requirement.

13 . In this regard, the Committee Report accompanying the Senate version of the Act notes as particularly apt a Supreme Court opinion containing the following quotation of former Justice Tom Clark in a suit brought under the ■ Landrum-Griffin Act:

“Not to award counsel fees in cases such as this would be tantamount to repealing the Act itself by frustrating its basic purpose. Without counsel fees the grant of federal jurisdiction is but a gesture . Hall v. Cole, 412 U.S. 1 [93 S.Ct. 1943, 36 L.Ed.2d 702] (1973), quoting 462 F.2d 777, (2d Cir. 1972).” S.Rep. No. 94-1011, 94th Cong., 2d Sess. at 3 (1976).

The same comment might appropriately be made with respect to enforcement of the rights afforded under the civil rights statutes as applied to the federal government.