844 F.2d 353 (6th Cir. 1988), 87-1009, Bergman v. United States

Docket Nº:87-1009.
Citation:844 F.2d 353
Party Name:Walter BERGMAN and James T. Drummond, as Personal Representative of the Estate of Frances Bergman, Plaintiffs-Appellants, v. UNITED STATES of America; Barrett G. Kemp, individually and as a former employee of the Federal Bureau of Investigation; four unknown agents of the Federal Bureau of Investigation; and Thomas J. Jenkins, individually and as a
Case Date:April 18, 1988
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 353

844 F.2d 353 (6th Cir. 1988)

Walter BERGMAN and James T. Drummond, as Personal

Representative of the Estate of Frances Bergman,



UNITED STATES of America; Barrett G. Kemp, individually and

as a former employee of the Federal Bureau of Investigation;

four unknown agents of the Federal Bureau of Investigation;

and Thomas J. Jenkins, individually and as a former

employee of the Federal Bureau of Investigation, Defendants-Appellees.

No. 87-1009.

United States Court of Appeals, Sixth Circuit

April 18, 1988

Argued Jan. 5, 1988.

Rehearing and Rehearing En Banc Denied June 2, 1988.

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Mark Granzotto (argued), Deborah LaBelle, Elizabeth Gleicher, William H. Goodman, Detroit, Mich., for plaintiffs-appellants.

John A. Smietanka, U.S. Atty., Grand Rapids, Mich., R. Joseph Sher, Washington, D.C., Nicki L. Koutsis, Thomas M. Bondy (argued), Mark W. Pennak, Barbara L. Herwig, Dept. of Justice, Civ. Div., Washington, D.C., for defendants-appellees.

Before MERRITT, KENNEDY, and KRUPANSKY, Circuit Judges.


Plaintiffs-appellants Walter Bergman and James T. Drummond 1 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. Sec. 2671 ("FTCA"). The plaintiffs assert that they are entitled to fees under the Equal Access to Justice Act, 28 U.S.C. Sec. 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. Sec. 1988 or under common

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law principles, two bases available under the EAJA. Bergman v. United States, 648 F.Supp. 351 (W.D.Mich.1986). Plaintiffs appeal.


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. Sec. 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. Sec. 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. Secs. 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. Sec. 1985(3), the government violated Sec. 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

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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...

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