Brown v. Hornbeck, 1081

• Decision Date: 14 April 1983
• Docket Number: No. 1081,1081
• Parties: Leroy C. BROWN, et al. v. David W. HORNBECK.
• Court: Court of Special Appeals of Maryland

Page 404

54 Md.App. 404

458 A.2d 900

Leroy C. BROWN, et al. v. David W. HORNBECK.

No. 1081.

Court of Special Appeals of Maryland.

April 14, 1983.

C. Christopher Brown, with whom was Maurice Braverman, Baltimore, on brief, for appellants.

Diana G. Motz, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., Robert A. Zarnoch, Asst. Atty. Gen. and Jeanne A. Hitchcock, Asst. Atty. Gen., on brief, for appellee.

Argued before LISS, WEANT and ALPERT, JJ.

LISS, Judge.

In January 1980, appellants, seven teachers for the Maryland Department of Corrections who were assigned to prison teaching positions in Baltimore City, brought a class action suit in the Circuit Court of Baltimore City ¹ on behalf of the Baltimore City prison teachers. The appellees herein are David W. Hornbeck, the State Superintendent of Schools and John C. Crew, Sr., Superintendent of Baltimore City Schools. ²

Appellants alleged in their bill of complaint that while public school teachers in Baltimore City work ten months of the year, consisting of approximately 189 work days, prison teachers work twelve-month years, consisting of approximately 248 work days, and that therefore their 10% pay adjustment for this longer work year was significantly disproportionate to its approximately 30% greater duration. They further contended that correctional system teachers assigned to prisons in other Maryland counties received 20% pay adjustments for their additional efforts, twice the adjustment received by appellants and their class.

In their two-count bill of complaint appellants initially alleged a violation of Maryland Code (1978) § 6-303(a) of the Education Article, which guarantees that they "be paid an annual salary of not less than the salary received by a public school teacher of similar training and experience in the county where the institution is located." The second count alleged that the disparities in their pay scale denied them equal protection of the laws. Appellants sought declaratory and injunctive relief, as well as court awarded attorneys' fees.

After discovery and settlement discussions, the appellants resolved their dispute with the appellees by agreeing to accept an increase in adjustment from 10% to 15%. At that point the sole issue to be resolved was the question of attorneys' fees.

The parties submitted that issue to the presiding chancellor on the basis of legal memoranda, affidavits, stipulation and oral argument, and the trial judge ruled that appellants were not entitled to attorneys' fees. It is from that judgment that this appeal was filed.

Two issues are raised for determination by this appeal:

1. Did appellants waive their right to an award of attorneys' fees by a pleading omission?

2. Did "special circumstances" exist to justify denial of an award of attorneys' fees?

1.

Appellants initially argue that having prevailed on the merits of their lawsuit in a constitutionally based action rooted in 42 U.S.C. § 1983 (1976), they were entitled to an award of counsel fees pursuant to the provisions of the companion statute, 42 U.S.C. § 1988 (1976).

42 U.S.C. § 1983 provides in pertinent part as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other 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....

42 U.S.C. § 1988 provides in pertinent part as follows:

In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title... 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. [emphasis supplied].

Appellants submitted affidavits supporting the allowance of $6858.75 in counsel fees and due to the contingency nature of counsel's fee arrangement, the benefits of the suit to the class, the quality of counsel's work, appellants sought a 50% multiplier in the case. The total counsel fees requested was $10,288.13.

Appellants concede that their entire basis for the allowance of counsel fees is grounded in 42 U.S.C. §§ 1983 and 1988. The statutes as we have quoted allow a court to award counsel fees when an action is brought to enforce a violation of the civil rights laws enumerated therein. The language of the statute was added to the section by an amendment in 1976 titled the "Civil Rights Attorneys' Fee Award Act of 1976," 5 U.S.C. Cong. & Admin.News, 94th Congress, 2d Session 5908.

The appellants contend in their bill of complaint that the disparity of wage scales amounted to a violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and was sufficient to bring this case under §§ 1983 and 1988 of the United States Code. The chancellor did not agree, nor do we. We conclude that the language of § 1988 is plain and that there is no ambiguity or obscurity and that therefore the usual and literal meaning of the terminology employed in the statute will prevail. See Bright v. Unsatisfied Claim and Judgment Fund Board, 275 Md. 165, 338 A.2d 248 (1975). Section 1988 as written plainly limits fee awards to a party who prevails in an action to enforce one of the federal civil rights laws. It does not provide for the award of fees in any other action. ³

The legislative history of the Civil Rights Attorneys' Fees Award Act is consistent with its plain language. Section 1988 was amended in 1976 in response to Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). In that case the Supreme Court refused to tax attorneys' fees based on the "private attorney general approach," leaving it to Congress to authorize an exception to the "American rule" that attorneys' fees are not ordinarily recoverable in the absence of statutory authorization. The purpose of the Civil Rights Attorneys Act as set forth in the Senate Report was to remedy gaps in our civil rights laws created by the Supreme Court's decision in Alyeska and to achieve consistency in our civil rights laws. 5 U.S.C. Cong. & Admin.News, 94th Congress, 2d Session, 1976, 5908. The Senate Report expressly recognized that the application of § 1988 "is limited to cases arising under our civil rights laws, a category of cases in which attorneys' fees have traditionally been regarded as appropriate." Id., at 5912.

The federal courts have consistently held that in order to recover fees under § 1988 a party must bring an action to enforce one of the civil rights enumerated therein. In the recent case of Lauritzen v. Secretary of the Navy, 546 F.Supp. 1221, 1224 (C.D.Cal.1982) it was held:

Plaintiff did not bring this action to enforce any of the specific provisions (i.e., § 1981, etc.) enumerated in § 1988. Instead, she claimed a right to relief directly under the United States Constitution and under Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (recognizing private damage action for Fourth Amendment violations by federal officers). See also Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979) (Fifth Amendment). Accordingly, plaintiff cannot obtain attorney's fees directly under 42 U.S.C. § 1988.

Similarly, in Russo v. State of New York, 672 F.2d 1014, 1023 (2d Cir.1982), the Court stated:

In section 1988 Congress has provided that a prevailing party in a section 1983 action can recover attorney's fees, however, it has not provided that a prevailing party in a malicious prosecution action can do so. In the absence of legislative intent and pronouncement, it was not within the province of the trial court to fashion an award of attorney's fees in this case. A court cannot appropriate a function which Congress has reserved for itself.

Accord, Matthews v. United States, 526 F.Supp. 993, 1008 (M.D.Ga.1981) where the Court held that the plaintiff did not seek to assert a claim under any of the enumerated sections listed in § 1983 and the refore is not entitled to utilize § 1988 to obtain an award of attorneys' fees.

The Supreme Court has not yet ruled that state courts must entertain § 1983 actions but in a recent case held that these courts may open their doors to a § 1983 claim.

Appellants rely substantially upon the case of Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), to support its position. In that case the Supreme Court had before it a dispute concerning two related issues arising under 42 U.S.C. §§ 1983 and 1988. The petitioners sued in the Maine Superior Court and alleged that the state of Maine and its Commissioner of Human Services violated § 1983 by depriving the complainants of welfare benefits to which they were entitled under the federal Social Security Act. A majority of the Supreme Court held that § 1983 encompassed claims based upon purely statutory violations of federal law and could be brought in state courts. See Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980). The Court further held that the fee provision of § 1988 is part of the § 1983 remedy whether the action is brought in federal or state court. [448 U.S. at 11, 100 S.Ct. at 2508].

In order to be entitled to the benefit of this holding by the Supreme Court, however, it must appear that the appellants have alleged and proven a "substantial" § 1983 claim. Appellants' sole federal claim was that defendant's action in paying the plaintiffs at a rate of pay inferior to that received by similarly qualified public school teachers in Baltimore City violates the Equal Protection Clause of the United States Constitution. This is not a substantial claim under section 1983.

This Court has held that legis...