730 F.2d 1139 (8th Cir. 1984), 83-1337, Consolidated Freightways Corp. of Delaware v. Kassel

Docket Nº:83-1337.
Citation:730 F.2d 1139
Case Date:March 27, 1984
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 1139

730 F.2d 1139 (8th Cir. 1984)



Raymond KASSEL, et al., Appellees.

No. 83-1337.

United States Court of Appeals, Eighth Circuit

March 27, 1984

Submitted Oct. 11, 1983.

Page 1140

John Duncan Varda, John H. Lederer, Lisa F. Kane, DeWitt, Sundby, Huggett & Schumacher, S.C., Madison, Wis., Terry C. Hancock, Bradshaw, Fowler, Proctor & Fairgrave, Des Moines, Iowa, for appellant.

Mark E. Schantz, of Dickinson, Throckmorton, Parker, Mannheimer & Raife, Des Moines, Iowa, Lester A. Paff, Asst. Atty. Gen., Dept. of Transp., Ames, Iowa, for appellees.

R. Richard Bittner, Robert D. Lambert, Betty, Neuman, McMahon, Hellstrom & Bittner, Davenport, Iowa, for Motor Club of Iowa.

Before BRIGHT, JOHN R. GIBSON, and FAGG, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Consolidated Freightways Corporation of Delaware was successful in its efforts to have Iowa's statute restricting Consolidated's use of sixty-five foot twin trailers declared invalid as a violation of the Commerce Clause. It now seeks attorney's fees from the State of Iowa under 42 U.S.C. Sec. 1988 (Supp. V 1981), an issue which was bifurcated in the earlier hearing. The district court 1 held that Consolidated failed to demonstrate a fourteenth amendment violation as a basis for applying 42 U.S.C. Sec. 1983 (Supp. V 1981) and that its success on the Commerce Clause claim did not establish a deprivation of any right, privilege, or immunity secured by the Constitution within the meaning of 42 U.S.C.

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Sec. 1983. The claim for attorney's fees was denied. We affirm.

Consolidated brought its action against the State of Iowa to declare its statute, Iowa Code Sec. 321.457 (1979), restricting the length of trailers and prohibiting the use of sixty-five foot twins within its borders, to be invalid. The district court in Consolidated Freightways Corp. v. Kassel, 475 F.Supp. 544 (S.D.Iowa 1979), found for plaintiff on the merits of the Commerce Clause claim. We affirmed, 612 F.2d 1064 (8th Cir.1979), and the United States Supreme Court in Kassel v. Consolidated Freightways Corp., 450 U.S. 662, 101 S.Ct. 1309, 67 L.Ed.2d 580 (1981), also affirmed. The district court conducted a fourteen-day trial on the issue of safety and on the burden of interstate commerce. The Supreme Court concluded:

The controlling factors thus are the findings of the District Court, accepted by the Court of Appeals, with respect to the relative safety of the types of trucks at issue, and the substantiality of the burden on interstate commerce.

Because Iowa has imposed this burden without any significant countervailing safety interest, its statute violates the Commerce Clause. The judgment of the Court of Appeals is affirmed.

Kassel, 450 U.S. at 678-79, 101 S.Ct. at 1320-21 (footnotes omitted).

In its order denying an award of attorney's fees, the district court observed that plaintiff had prevailed on the Commerce Clause ground and that the Sec. 1983 ground had not been decided by the district court, the Eighth Circuit or the Supreme Court. The district court then considered the Sec. 1983 argument insofar as it was based upon the fourteenth amendment and found that even though the statute on truck-length limitation was later found to be invalid, the Iowa legislature had authority for due process purposes to pass such statute. There was thus no due process violation under the fourteenth amendment to form a basis for application of Sec. 1983. The district court then proceeded to consider the question of whether the Commerce Clause secured rights cognizable under Sec. 1983 and concluded that it did not. The basis for the district court's decision was that the Commerce Clause dealt with the distribution of powers between the federal and state governments under the federal system, and Sec. 1983, which was concerned with the relationship between individuals and the states in matters involving life, liberty or property, was not intended to apply.

Consolidated argues that Sec. 1983 applies to violations of the Commerce Clause because the right to engage in commerce is secured by the Constitution, and that the district court erred in concluding to the contrary. Consolidated also argues that Iowa's ban on the operation of sixty-five foot twins deprived it of property and deprived its employees and others of their lives and safety. We deal with these arguments in turn.


42 U.S.C. Sec. 1988 provides for the allowance of reasonable attorney's fees as part of the costs "[i]n any action or proceeding to enforce a provision of ... [42 U.S.C. Sec.] 1983." Under 42 U.S.C. Sec. 1983:

Every person who, under color of any statute, ... of any State ... subjects, or causes to be subjected, any ... person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

In its amended complaint, Consolidated alleged that Iowa's statutory ban on sixty-five foot twin trailer trucks violated the Commerce Clause, the fourteenth amendment and 42 U.S.C. Sec. 1983. Without considering whether Sec. 1983 was an appropriate basis for liability, the court found for Consolidated on the Commerce Clause ground. However, the fact that a party prevails on a ground other than Sec. 1983 does not preclude an award of attorney's fees under Sec. 1988. If Sec. 1983 would have been an appropriate basis for relief, then

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Consolidated is entitled to attorney's fees under Sec. 1988 even though relief was actually awarded on another ground. See Maher v. Gagne, 448 U.S. 122, 132 n. 15, 100 S.Ct. 2570, 2576 n. 15, 65 L.Ed.2d 653 (1980).



Since Consolidated prevailed on its Commerce Clause claim, the first question is whether the Commerce Clause secures rights which are cognizable under Sec. 1983. In its brief, Consolidated cites two cases which have held that a violation of the Commerce Clause constitutes a claim under Sec. 1983.

In Confederated Salish and Kootenai Tribes v. Moe, 392 F.Supp. 1297 (D.Mont.1975), aff'd, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976), 2 an Indian tribe and certain of its individual members challenged a Montana taxing statute, partly on Commerce Clause grounds. After finding jurisdiction over the tribe's claims under 28 U.S.C. Sec. 1362 (1976), the district court went on to find that it had jurisdiction over the individual claims under 28 U.S.C. Sec. 1343(3) (Supp. V 1981), 3 because the "alleged violation of Commerce Clause rights is sufficient to state a claim under Sec. 1983." Kootenai, 392 F.Supp. at 1304-05.

Kennecott Corp. v. Smith, 637 F.2d 181 (3d Cir.1980), the other case cited by Consolidated, simply stated in a footnote, without further explanation, that the plaintiff's action was properly brought under Sec. 1983 because it sought "redress for deprivations of constitutional rights secured by the commerce clause and of federal statutory rights protected by the Williams Act." 637 F.2d at 186 n. 5. We do not find these cases to be persuasive because neither Kootenai, Kennecott, nor the cases upon which they rely substantially discuss whether the Commerce Clause is a Constitutional provision which secures rights within the meaning of Sec. 1983.

The district court in Kootenai, as does Consolidated here, relied solely upon the dictum in Lynch v. Household Finance Corp., 405 U.S. 538, 549 n. 16, 92 S.Ct. 1113, 1120 n. 16, 31 L.Ed.2d 424 (1972), that the phrase "rights, privileges, or immunities secured ... by the Constitution or laws of the United States" embraces not only fourteenth amendment rights but "all of the Constitution and laws of the United States." 4 (emphasis in original). Lynch, however, involved a fourteenth amendment due process and equal protection challenge, not a Commerce Clause claim. As explained in Consolidated's brief, Lynch addressed the question of whether "property rights" as well as "personal rights" are within the ambit of Sec. 1983. 405 U.S. at 542, 92 S.Ct. at 1117. Lynch did not hold that the Commerce Clause is a source of rights within the meaning of Sec. 1983.

The authority relied upon in Kennecott is also not dispositive. The only case cited in Kennecott is Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980). Although the Supreme Court held in Thiboutot that the phrase "and laws" in

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Sec. 1983 is not limited to federal statutes providing for equal rights, the Supreme Court has also recognized that not all statutes secure rights within the meaning of Sec. 1983, even though individuals may benefit from their provisions. See Middlesex County Sewerage Authority v. National Sea Clammers Ass'n, 453 U.S. 1, 19, 101 S.Ct. 2615, 2626, 69 L.Ed.2d 435 (1981); Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 28, 101 S.Ct. 1531, 1545, 67 L.Ed.2d 694 (1981). 5 Neither the holding in Lynch nor Thiboutot provides an answer to the question of whether the Commerce Clause is a Constitutional provision which secures rights within the meaning...

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