Aho v. Clark
| Decision Date | 14 November 1979 |
| Docket Number | Nos. 77-2695,77-2732,s. 77-2695 |
| Citation | 608 F.2d 365 |
| Parties | Madeline and David AHO, and Jessie, William, Annie and Mary Gail Preston, by their mother and next friend Jean Aho; and Edwina, Louise and June Richards, by their mother and next friend Margaret Richards, on behalf of themselves and all other persons similarly situated; and Koolauloa Welfare Rights Groups, an unincorporated non-profit association, Plaintiffs-Appellants, v. Charles CLARK, Superintendent of Education, State of Hawaii; Stanley W. Doucette, Director of School Lunch Services for the Department of Education, State of Hawaii; Noboru Yonamine, Darrow Aiona, George Adachi, Richard Ando, Hubert Minn, Marion Saunders, Howard Takenaka, Ruth Tabrah, and Hiroshi Yamashita, members of the Board of Education, State of Hawaii, Defendants-Appellees. Madeline and David AHO, and Jessie, William, Annie and Mary Gail Preston, by their mother and next friend Margaret Richards, on behalf of themselves and all other persons similarly situated; and Koolauloa Welfare Rights Group, an unincorporated non-profit association, Plaintiffs-Cross-Appellees, v. Charles CLARK, Superintendent of Education, State of Hawaii; Stanley W. Doucette, Director of School Lunch Services for the Department of Education, State of Hawaii; Noboru Yonamine, Darrow Aiona, George Adachi, Richard Ando, Hubert Minn, Marion Saunders, Howard Takenaka, Ruth Tabrah, and Hiroshi Yamashita, members of the Board of Education, State of Hawaii, Defendants-Cross-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Shelby Anne Floyd, Paul, Johnson & Alston, Honolulu, Hawaii, for plaintiffs-appellants.
Maria L. Sousa, Deputy Atty. Gen., Honolulu, Hawaii, argued for defendants-appellees; Ronald Y. Amemiya, Atty. Gen., Honolulu, Hawaii, on the brief.
Appeal from the United States District Court for the District of Hawaii.
Before SNEED and HUG, Circuit Judges, and ZIRPOLI *, District Judge.
Appellants appeal the denial of their request for attorneys' fees in connection with litigation which resulted in a consent agreement expanding the school breakfast program in Hawaii's public school system. Appellees cross- appeal the denial of their motion to have the consent agreement set aside. We are called upon to determine whether the district court abused its discretion in denying these motions. For the reasons set forth in this opinion, we affirm with respect to both issues.
In April and May 1976, the Board of Education of Hawaii held public meetings to discuss the implementation of a state-wide school breakfast program, in accordance with Pub.L. 94-105, 42 U.S.C. § 1773(g). Shortly thereafter the Board implemented such a program. On June 1, 1976, suit was filed by several schoolchildren on behalf of themselves and others similarly situated and by the Koolauloa Welfare Rights Group (appellants) against several state public education officials (appellees). The complaint alleged that the Board's plan failed to meet federal guidelines and was in violation of the Child Nutrition Act, 42 U.S.C. § 1773, Et seq. On July 21, 1976, appellants further alleged violations of 42 U.S.C. § 1983 and of appellants' constitutional rights to substantive and procedural due process and to equal protection under the Fourteenth Amendment.
On December 29, 1976, all parties entered into a consent agreement for the purpose of "effecting an amicable settlement." Appellees agreed to conduct a breakfast program survey and, after tabulation of the results, to implement the program in schools electing to participate. The agreement expressly left undetermined the issue of whether appellees' existing program had been in violation of any federal or state law or regulation.
On April 19, 1977, four months after the consent agreement was approved by the district court, appellants filed a motion for attorneys' fees in the amount of $11,182.50, based on the number of hours spent litigating the claims and using a "multiplier" of two to reflect the novelty and complexity of the issues. Appellees countered on May 13, 1977 by moving to set aside the consent agreement. On May 27, 1977, a hearing on both issues was held in the district court. On June 1, 1977, the court denied both motions.
Appellants appealed the denial of attorneys' fees on June 30, 1977. Notice of cross-appeal was filed by appellees on July 1, 1977, appealing the denial of their motion to set aside the consent agreement.
The Civil Rights Attorney's Fees Awards Act of 1976, Pub.L.No.94-559, 90 Stat. 2641, Amending 42 U.S.C. § 1988, provides that in civil rights suits, "the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs." The circuits are in disagreement with regard to the scope of discretion committed by this statute to the district court. Compare Sargeant v. Sharp, 579 F.2d 645 (1st Cir. 1978), With Zarcone v. Perry, 581 F.2d 1039 (2d Cir. 1978), Cert. denied, 439 U.S. 1072, 99 S.Ct. 843, 59 L.Ed.2d 38 (1979). In our recent decision in Buxton v. Patel, 595 F.2d 1182 (9th Cir. 1979), we approved the reasoning of Zarcone v. Perry. In that case the Second Circuit ruled that in damage actions to which the Attorney's Fees Act applies, a court's discretion should be guided by factors related to the Act's purpose, such as the size of the class benefitted, the importance of the benefits achieved by the suit, the need for an attorney's fee in order to attract competent counsel to the suit, and the presence of bad faith or obdurate conduct on the part of either party. Zarcone v. Perry, 581 F.2d at 1044. Zarcone also indicated that when the plaintiff seeks relief other than damages, courts should follow the standard of Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968), which held that successful civil rights plaintiffs " 'should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.' " Zarcone v. Perry, 581 F.2d at 1042, 1044.
This action was brought for declaratory and injunctive relief and hence is governed by the Newman standard. We are convinced, however, that the case presents "special circumstances" which would render an attorneys' fee award unjust. Appellants' original and amended complaints requested attorneys' fees. However, the consent agreement, which the parties entered into in order to effect "an amicable settlement in this action," made no provision for such an award. It is evident that appellants, in order to realize the most important aims of the suit without incurring the expense and risk of further litigation, agreed to forego some of the benefits which they had originally sought. The consent agreement, like nearly all such settlements, involved a compromise. For us to order an award of attorneys' fees would alter the consequences of that compromise and would thus be manifestly unfair to appellees.
Moreover, it is significant that the Attorney's Fees Act did not take effect until October 19, 1976, almost four months after this suit was filed and only slightly more than two months before the consent agreement was approved by the parties. During much of the negotiations which resulted in the consent agreement, therefore, appellees could not have been liable for attorneys' fees except upon a showing of bad faith. See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). To be...
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...166 Cal.App.3d at p. 117, 212 Cal.Rptr. 485, this court noted that good faith may be relevant to denying recovery, citing Aho v. Clark (9th Cir.1979) 608 F.2d 365, 368. In Aho, where the appellants had challenged the sufficiency of Hawaii's school breakfast program, the lower court's denial......
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