Doe v. Busbee

• Decision Date: 07 September 1982
• Docket Number: No. 81-7017,81-7017
• Citation: 684 F.2d 1375
• Parties: Jane DOE, individually and on behalf of others similarly situated, Jacob D. Adams, M.D., et al., Plaintiffs-Appellees, v. George D. BUSBEE, etc., et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1375

684 F.2d 1375

Jane DOE, individually and on behalf of others similarly situated, Jacob D. Adams, M.D., et al., Plaintiffs-Appellees, v. George D. BUSBEE, etc., et al., Defendants-Appellants.

No. 81-7017.

United States Court of Appeals Eleventh Circuit.

Sept. 7, 1982.

Stephanie B. Manis, Asst. Atty. Gen., Atlanta, Ga., for defendants-appellants.

Elizabeth J. Appley, Margie Pitts Hames, Atlanta, Ga., for plaintiffs-appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before INGRAHAM ^*, HATCHETT and ANDERSON, Circuit Judges.

R. LANIER ANDERSON, III, Circuit Judge:

Appellants George D. Busbee, et al. bring this appeal from an award of attorney's fees to appellees Jane Doe, et al. under the Civil Rights Attorney's Fees Award Act of 1976, 42 U.S.C.A. § 1988 (West 1981). Appellees were originally successful in obtaining injunctive and declaratory relief in the district court. While the case was on appeal, the Supreme Court of the United States handed down two opinions that effectively rejected the position that the appellees had successfully advanced in the district court. The district court awarded attorney's fees to the appellees after the two controlling Supreme Court decisions. Upon remand from the court of appeals, the district court vacated its prior judgment granting injunctive and declaratory relief to appellees, dismissed their complaint, taxed costs against the appellees, but refused to withdraw its award of attorney's fees. The issue before us is whether the appellees are "prevailing parties" within the meaning of § 1988 and thereby entitled to attorney's fees. We conclude that they are not prevailing parties, and accordingly we reverse the award of attorney's fees entered by the district court.

I. FACTS

The relevant facts are not in dispute. On May 8, 1979, the appellees filed a class action under 42 U.S.C.A. § 1983 seeking declaratory judgment that the rules governing the administration of the Medicaid program in Georgia, which limited state funding of abortions to those funded under the Hyde Amendment, were invalid under the Medicaid Act and the United States Constitution. The complaint also sought injunctive relief. The following day, appellees argued a motion for a temporary restraining order before the district court. The court declined to enter a temporary restraining order, but received the consent of counsel for the appellants that the State would provide reimbursement for an abortion performed upon appellee Jane Doe prior to a hearing on a preliminary injunction if the district court were to award the preliminary injunction in favor of appellees at a subsequent date. After a hearing on the issue, the court, after concluding that Georgia law did not prohibit expenditure of Medicaid funds for abortions in cases where matching federal funds were not available, granted appellees' motion for a preliminary injunction enjoining appellants from refusing to provide Medicaid reimbursement for abortions for the named female appellees. Doe v. Busbee, 471 F.Supp. 1326 (N.D.Ga.1979). The district court subsequently certified the case as a class action.

On December 12, 1979, the district court awarded summary judgment in favor of the appellees and entered both declaratory relief and a permanent injunction requiring appellants to provide Medicaid reimbursement for all medically necessary abortions for eligible women in Georgia. During the time this injunction was in effect, approximately 1800 women received abortions funded by Medicaid in Georgia. Appellants appealed from this judgment to the Fifth Circuit. On January 14, 1980, appellees filed a motion to recover attorney's fees, but before the district court ruled on the motion, the Supreme Court of the United States on June 30, 1980, decided Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980), and Williams v. Zbaraz, 448 U.S. 358, 100 S.Ct. 2694, 65 L.Ed.2d 831 (1980). These cases substantially undercut the rationale of the district court in entering judgment for plaintiffs. The appellants thereafter filed a motion under Fed.R.Civ.P. 60(b) for vacation and relief from the district court's final judgment issued in December, 1979. On October 7, 1980, the district court entered an order to the effect that should the Fifth Circuit remand the case to the district court, appellants would be entitled to relief under Rule 60(b).

On December 8, 1980, the district court entered an order awarding plaintiffs attorneys fees in the amount of $30,322.50. The district court indicated in its order that, because its ruling on the summary judgment motion was on appeal, the district court was without power to declare a new prevailing party. Furthermore, the court pointed to the abortions obtained under the preliminary and permanent injunctions and the declaratory judgment to indicate that notwithstanding the effect of McRae and Zbaraz on this litigation, appellees may still have obtained substantial relief. The district court required appellees to post bond to ensure repayment of the attorney's fees in the event that the award was reversed on appeal. A timely notice of appeal was filed from the entry of the attorney's fee award.

On December 16, 1980, the Fifth Circuit remanded to the district court the appeal with respect to the December 1979 final judgment. On January 13, 1981, the district court vacated the December 1979 final judgment in light of McRae and Zbaraz, and dismissed appellees' complaint. Subsequently, the district court taxed costs against the appellees. However, the district court refused to vacate its prior award of attorney's fees to appellees.

II. PREVAILING PARTY?

The Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C.A. § 1988 (West 1981), ¹ authorizes district courts to award attorney's fees to prevailing parties in actions brought under certain civil rights statutes. Although the decision to award attorney's fees under § 1988 is within the discretion of the district court, attorney's fees generally should be awarded to prevailing plaintiffs absent special circumstances, Deerfield Medical Center v. City of Deerfield Beach, 661 F.2d 328, 339 (5th Cir. 1981) ²; Taylor v. Sterrett, 640 F.2d 663, 668 (5th Cir. 1981); S.Rep.No.94-1011, 94th Cong., 2d Sess., 4, Reprinted in (1976) U.S.Code Cong. & Adm.News 5908, 5912, but fees may be awarded to prevailing defendants only where the plaintiff's claim was "frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." Hughes v. Rowe, 449 U.S. 5, 14, 101 S.Ct. 173, 178, 66 L.Ed.2d 163 (1980) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978) (reaching same conclusion under Title VII attorney's fees provision)). See Gresham Park Community Organization v. Howell, 652 F.2d 1227, 1248 (5th Cir. 1981). The specific issue presented in this case is whether plaintiffs are entitled to an award of attorney's fees under § 1988 when the district court originally grants a final judgment in their favor, but upon reconsideration dismisses their complaint on the merits, so that plaintiffs ultimately do not prevail on any legal issue. To answer this question, we must evaluate the meaning of the term "prevailing party" as used in § 1988 in light of the purpose of the attorney's fees awards act.

The congressional purpose in authorizing awards of attorney's fees to plaintiffs as prevailing parties was to assist private attorneys general in vindicating civil rights. Recognizing that the expense of litigating a civil rights suit would often prevent individuals from seeking to enforce their rights, Congress decided that those who violate the civil rights laws, not the victims of those violations, should bear the costs of vindicating the civil rights. As the legislative history to the Civil Rights Attorney's Fees Award Act indicates:

In many cases arising under our civil rights laws, the citizen who must sue to enforce the law has little or no money with which to hire a lawyer. If private citizens are to be able to assert their rights, and if those who violate the nations fundamental laws are not to proceed with impunity, then citizens must have the opportunity to recover what it costs them to vindicate these rights in court.

S.Rep.No.94-1011, 94th Cong., 2d Sess., 2, reprinted in (1976) U.S.Code Cong. & Adm.News 5910 (emphasis added). This important public interest in assuring that individuals would not be deterred from exposing violations of their civil rights, in Congress' view, was sufficient to justify departing from the normal practice in American courts of having each party bear the expense of his own attorney in favor of a rule that the party violating the civil rights laws should be responsible for the legal fees required to vindicate those rights. See Christiansburg Garment Co. v. EEOC, 434 U.S. at 418, 98 S.Ct. at 698; Hanrahan v. Hampton, 446 U.S. 754, 758 & n.4, 100 S.Ct. 1987, 1989 & n.4, 64 L.Ed.2d 670 (1980). The vehicle by which Congress chose to implement this policy was the concept of the "prevailing party."

To be a "prevailing party," it is not necessary for a plaintiff ultimately to prevail on each and every claim asserted or to receive all the relief requested. As the legislative history notes, "parties may be considered to have prevailed when they vindicate rights through a consent judgment or without formally obtaining relief." S.Rep.No.94-1011, at 5 (emphasis added). See H.Rep.No.94-1158, 94th Cong., 2d Sess., at 7; Hanrahan v. Hampton, 446 U.S. at 756-57, 100 S.Ct. at 1988-1989. For example, a party may be considered to be "prevailing" if the litigation successfully terminates by a consent decree, an out-of-court settlement, a voluntary cessation of the unlawful practice by the defendant, or other mooting of the case where the plaintiff has vindicated his right. A party may also be awarded attorney's fees as a prevailing party at...