Bush v. Bays, Civ. A. No. 77-0472-R.

• Decision Date: 22 November 1978
• Docket Number: Civ. A. No. 77-0472-R.
• Citation: 463 F. Supp. 59
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Joe BUSH et al. v. Robert E. BAYS et al.

463 F. Supp. 59

Joe BUSH et al. v. Robert E. BAYS et al.

Civ. A. No. 77-0472-R.

United States District Court, E. D. Virginia, Richmond Division.

November 22, 1978.

COPYRIGHT MATERIAL OMITTED

C. Cooper Geraty, Cape Charles, Va., for plaintiffs.

Robert C. Oliver, Jr., Commonwealth's Atty. for Northampton County, Eastville, Va., for defendants.

MEMORANDUM

WARRINER, District Judge.

This is an action brought by eight individuals on behalf of themselves and all persons similarly situated challenging certain regulations of the Commonwealth of Virginia as being contrary to the Food Stamp Act, 7 U.S.C. § 2011, et seq. Plaintiffs allege that defendants have deprived them of their federal statutory right to receive food stamp coupons in violation of 42 U.S.C. § 1983. Jurisdiction is asserted under 28 U.S.C. §§ 1337, 1343(3), 1343(4), and 1361.

On 22 September 1978 this Court approved a consent agreement which resolved what plaintiffs alleged to be the substantive dispute between the parties. The sole remaining issue for this Court to resolve is the liability of the defendants for plaintiffs' attorneys' fees under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988 (hereinafter the Act). All the parties have filed their briefs on this question, and the Court has had the benefit of oral argument by counsel in open court. Thus, the matter is ripe for decision.

Defendant Allen D. Richardson, Superintendent of the Northampton County Department of Social Services, has challenged the basis for the Court's jurisdiction, arguing that this case is actually one to interpret and enforce the provisions of the Food Stamp Act, and not a civil rights case at all. Unless the plaintiffs' claim states a cause of action under 42 U.S.C. § 1983 there is no authority for the Court to award attorneys' fees in this case. Therefore, the Court must examine the basis for its jurisdiction and determine whether this case is maintainable under § 1983 or whether jurisdiction is more properly of the federal question variety. See, 28 U.S.C. §§ 1331, 1337.

There is substantial authority that federal district courts' jurisdiction to consider a claim such as is presented in this case, requiring an interpretation of the Food Stamp Act, lies under the commerce provision of 28 U.S.C. § 1337. E. g., Liddie v. State of California, 478 F.2d 552 (9th Cir. 1973); Turchin v. Butz, 405 F.Supp. 1263 (D.Minn.1976). That section does not require that a plaintiff allege any minimum amount in controversy in order to establish district court jurisdiction. However, jurisdiction founded upon § 1337, while sufficient to permit the Court to act on plaintiffs' prayer for relief, is not sufficient to support an award of attorneys' fees under the Civil Rights Attorney's Fees Awards Act of 1976.

Therefore, the Court must consider whether plaintiffs' complaint states a cause of action under § 1983. If so, jurisdiction must be found either under the general grant of federal question jurisdiction found in 28 U.S.C. § 1331 or under the special jurisdictional provision for civil rights cases, 28 U.S.C. § 1343. If jurisdiction for plaintiffs' purely statutory claims may only be found under § 1331, then plaintiffs' complaint does not properly allege jurisdiction against any but the federal defendant because it does not contain an allegation of the requisite amount in controversy. Therefore, the Court is without jurisdiction to award attorneys' fees in this case unless the Court's jurisdiction over plaintiffs' statutory § 1983 claim is found under § 1343(3) or (4).

The trouble with this case springs from the fact that although § 1983 refers by its terms to federal "law" the jurisdictional section which provides for jurisdiction over civil rights cases refers only to "any Act of Congress providing for equal rights of citizens," and "any Act of Congress providing for the protection of civil rights." The Courts of Appeals are divided on the question of whether § 1343(3) and (4) provide jurisdiction over § 1983 actions which are purely statutory in nature, such as the present case. The First, Second and Third Circuits have each held that § 1343 does not provide such jurisdiction. Randall v. Goldmark, 495 F.2d 356, 359 (1st Cir. 1974); Andrews v. Maher, 525 F.2d 113, 119 (2d Cir. 1975); Gonzalez v. Young, 560 F.2d 160, 166-9 (3d Cir. 1977), cert. granted, 434 U.S. 1061, 98 S.Ct. 1232, 55 L.Ed.2d 761 (1978). These cases, which look to the substance of the complaint, each hold that the plaintiff's claim arose not under § 1983 but under the particular federal statute whose implementation by the State the plaintiff was challenging. The Fourth and Fifth Circuits, however, looking to the form of the complaint, have held that suits to vindicate federal statutory rights under § 1983 are within the jurisdictional grant found in § 1343(3), Blue v. Craig, 505 F.2d 830, 842 (4th Cir. 1974); Houston Welfare Rights Organization, Inc. v. Vowell, 555 F.2d 1219, 1221 (5th Cir. 1977), cert. granted, 434 U.S. 1061, 98 S.Ct. 1232, 55 L.Ed.2d 761 (1978).

This Court is of course bound by the decision of the Fourth Circuit. Fortunately, on 21 February 1978 the Supreme Court granted certiorari to hear both Gonzalez v. Young and Houston Welfare Rights Organization, Inc. v. Vowell, and provided that these two cases should be heard at the same time. It appears, therefore, that a definitive answer on this question will be forthcoming in the near future. In the meantime this Court must apply the law as it stands in the Fourth Circuit. Accordingly, the Court concludes that plaintiffs' case states a claim under § 1983 cognizable under § 1343(3) and that the Civil Rights Attorney's Fees Awards Act of 1976 applies to this case. That statute reads in pertinent part: "In any action or proceeding to enforce a provision of §§ 1977, 1978, 1979, 1980, and 1981 of the Revised Statutes 42 U.S.C. §§ 1981-1983, 1985, 1986 . . . 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."

There are two salient features of this Act which warrant consideration. The first is that only a "prevailing party" may be awarded an attorney's fee. The second is that the award of an attorney's fee under the Act is not automatic, but is within the discretion of the Court. The Court has already noted that attorney's fees may be awarded under the Act only if the underlying lawsuit was brought to enforce a provision of one of the enumerated statutes, in the present case, § 1983.

With this in mind, the Court will consider plaintiff's claim for an award of attorneys' fees against the United States and against the three named federal officials in this case. Plaintiffs appear to have abandoned any claim for an award of attorneys' fees against the United States. This is just as well, because the law will not support a view that the Act provides for attorneys' fees against the United States. 28 U.S.C. § 2412; Shannon v. United States Dept. of Housing and Urban Development, 577 F.2d 854 (3d Cir. 1978).

Plaintiffs argue that the three federal officials who are named defendants in this case are subject to payment of attorneys' fees in their individual capacities. Plaintiffs' theory is that the federal officials were involved with the State defendants in taking the actions complained of in this suit, and that therefore, these federal officials acted under color of State law to deprive plaintiffs of their rights. Plaintiffs could refer the Court to no authority to support this novel theory. Their convoluted argument does not change the fact that the federal officials who are parties to this lawsuit acted at all times under color of federal law and at no time under color of any State law. Because § 1983 does not apply to those who act under color of federal law, plaintiffs' suit against the federal defendants is not brought to enforce a provision of § 1983. Thus, there is no authority under the Act to award any attorneys' fees against the federal parties to this lawsuit. The Court is unaware of any other authority, absent a finding of bad faith, which would permit an award of attorneys' fees against the federal parties. As the record will not support a finding of bad faith on the part of the federal authorities, the Court must hold that the federal parties are not liable for any attorneys' fees.

The Court further notes that the federal defendants, as individuals, are not required to take any action whatsoever by the terms of the Consent Agreement. The United States Department of Agriculture, which is not a party, is required to take certain action. Under these circumstances, the Court agrees with counsel for the federal defendants that the plaintiffs did not prevail against these defendants. Accordingly, even if the Act applied to the federal defendants, no award of attorneys' fees under the Act would be permitted against them individually.

The plaintiffs suggest that the federal defendants have waived any defense of sovereign immunity. However, the Court's decision to deny attorneys' fees against the federal defendants in this case is not based in any way upon any defense of sovereign immunity. There simply is no authority for this Court to award attorneys' fees in a case of this kind against the federal officials.

The State and local defendants argue that if the federal defendants are entitled to sovereign immunity as to attorneys' fees, then so are the State and local defendants, who were merely carrying out a federal program pursuant to the regulations and instructions promulgated by the federal government. This argument is no comfort to the State and local defendants, however, because the failure of the Court to award attorneys' fees against the federal defendants is not based upon sovereign immunity. In any case, the fact that the State and local defendants were administering a federal program, and that every step in their administration...