Kirchberg v. Feenstra

• Decision Date: 05 July 1983
• Docket Number: No. 81-3560,81-3560
• Citation: 708 F.2d 991
• Parties: Karl J. KIRCHBERG, Plaintiff, v. Joan Paillot FEENSTRA, Defendant-Third-Party Plaintiff-Appellant, v. David C. TREEN and State of Louisiana, Third-Party Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 991

708 F.2d 991

Karl J. KIRCHBERG, Plaintiff, v. Joan Paillot FEENSTRA, Defendant-Third-Party Plaintiff-Appellant, v. David C. TREEN and State of Louisiana, Third-Party

Defendants-Appellees.

No. 81-3560.

United States Court of Appeals Fifth Circuit.

July 5, 1983.

David Ware, Michael G. Collins, Ann Woolhandler, New Orleans, La., for defendant-third-party plaintiff-appellant.

Patricia Bowers, Eavelyn T. Brooks, Asst. Attys. Gen., New Orleans, La., for third-party defendants-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before CLARK, Chief Judge, THORNBERRY and POLITZ, Circuit Judges.

THORNBERRY, Circuit Judge:

INTRODUCTION:

Appellant Joan Feenstra appeals from the district court's denial of attorney's fees under 42 U.S.C.A. Sec. 1988 (West 1981). We hold that the district court abused its limited discretion in denying attorney's fees. Accordingly, we reverse and remand with instructions to award reasonable attorney's fees in accordance with the guidelines set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974).

FACTS AND PROCEDURAL HISTORY:

In 1966, Joan and Harold Feenstra purchased a house in Orleans Parish, Louisiana. In 1974, Mrs. Feenstra filed a criminal complaint against her husband, charging him with molesting their minor daughter. While incarcerated on that charge, Mr. Feenstra retained Karl Kirchberg, an attorney, to represent him. Mr. Feenstra signed a $3,000 promissory note in prepayment for Mr. Kirchberg's services. As security on the note, Mr. Feenstra executed a mortgage in favor of Mr. Kirchberg on the home he jointly owned with his wife. The home was the community property of the Feenstras, and title to it was held in both their names. Mrs. Feenstra was not informed of the mortgage, and her consent to it was not required because under the law applicable at that time, former Art. 2404 of the Louisiana Civil Code Ann. (West 1971), ¹ her husband had exclusive control of the disposition of their community property.

Mrs. Feenstra ultimately dropped the charge against her husband, and they subsequently divorced. The $3,000 promissory note was not paid, and the divorce papers apparently made no mention of it. Mrs. Feenstra first learned of the note when Mr. Kirchberg informed her that unless she paid it, he would move to foreclose the mortgage on her home. Upon her refusal, Mr. Kirchberg obtained an order of executory process directing the local sheriff to seize and sell the Feenstra home.

Anticipating Mrs. Feenstra's defense to the foreclosure action, Mr. Kirchberg filed an action in federal district court seeking a declaratory judgment that he was not liable under the Truth in Lending Act, 15 U.S.C. Sec. 1635(a) [TILA], for any nondisclosures concerning the mortgage he held on the Feenstra home. Mrs. Feenstra counterclaimed that Mr. Kirchberg had violated the TILA, and added a second counterclaim against Mr. Kirchberg, and against the State of Louisiana and its Governor as third party defendants, challenging the constitutionality of the statutory scheme empowering her husband to unilaterally execute a mortgage on their jointly-owned home. Cross-motions on the TILA claims were denied. The State moved for summary judgment on the issue of the constitutionality of Article 2404, and Mr. Kirchberg joined in that motion. The district court granted the motion, holding that the Louisiana matrimonial property regime did not violate the Equal Protection or Due Process Clauses of the Fourteenth Amendment. Kirchberg v This Court reversed on appeal. Kirchberg v. Feenstra, 609 F.2d 727 (5th Cir.1979). Because the State failed to show that the mandatory designation of the husband as manager of the property was substantially related to its interest in providing by statute for the manner in which community property is managed, we concluded that Article 2404 violated the Equal Protection Clause. As a necessary preliminary to this determination, we established that an actual case or controversy existed between Mr. Kirchberg, the State of Louisiana, and its Governor, on the one hand, and Mrs. Feenstra on the other, rejecting the State's argument that the case had been mooted by the claimed dismissal of Mr. Kirchberg as a defendant, or by the claimed lack of any real or immediate threat of injury to Mrs. Feenstra. The only defendants to file a brief in that appeal were the State and its Governor; Mr. Kirchberg adopted their brief as his own.

Feenstra, 430 F.Supp. 642, 648 (E.D.La.1977).

Following our decision, Mr. Kirchberg filed an appeal, and the Supreme Court noted probable jurisdiction. Kirchberg v. Feenstra, 446 U.S. 917, 100 S.Ct. 1849, 64 L.Ed.2d 270 (1980). Although the State and the Governor did not appeal, they did file a motion to dismiss Mr. Kirchberg's appeal on the ground that extensive revisions in the State's community property law had rendered moot the controversy over the constitutionality of Article 2404. However, because this revision was effective only as of January 1, 1980, the Supreme Court concluded that the revised statutes did not govern the 1974 mortgage, and rejected the state defendants' motion. Kirchberg v. Feenstra, 449 U.S. 916, 101 S.Ct. 313, 66 L.Ed.2d 144 (1980). ² Because a finding of mootness would have required that this Court's opinion be vacated, Mrs. Feenstra's counsel were forced to oppose the state defendants' motion in the Supreme Court.

The Supreme Court unanimously affirmed this Court's decision in Kirchberg v. Feenstra, 450 U.S. 455, 101 S.Ct. 1195, 67 L.Ed.2d 428 (1981). The Court found that Mr. Kirchberg, as the party seeking to uphold a statute that expressly discriminates on the basis of sex, had failed to advance an "exceedingly persuasive justification" for the challenged classification. Feenstra, 101 S.Ct. at 1199. "Because appellant [Kirchberg] has failed to offer such a justification, and because the State, by declining to appeal from the decision below, has apparently abandoned any claim that an important government objective was served by the statute, we affirm the judgment of the Court of Appeals invalidating Art. 2404." Id.

On remand, the district court entered a declaratory judgment in favor of Mrs. Feenstra against Mr. Kirchberg, the State of Louisiana, and its Governor. The court also awarded costs to Mrs. Feenstra, but denied that portion of her motion for entry of judgment seeking an award of reasonable attorney's fees to her as the prevailing party under 42 U.S.C. Sec. 1988, ordering instead that each party was to bear its own attorney's fees under the American Rule. Mrs. Feenstra filed a motion to alter or amend judgment. At a hearing held to determine the issue of attorney's fees, the district court denied her motion from the bench. Although somewhat unclear, the transcript of the colloquy between counsel and the court reveals that the court based its decision on the fact that Mrs. Feenstra had never formally pleaded Sec. 1983 and that she was only seeking a declaratory judgment under 28 U.S.C. Sec. 2201. The court further refused to use its equitable powers

to change the award because of its determination that under the standard applied to prevailing defendants, plaintiff Kirchberg's original suit was neither frivolous, vexatious, nor brought in bad faith, and because Mrs. Feenstra's victory conferred no benefit on any broader class, but benefitted only herself. Mrs. Feenstra appeals that decision to this Court.

ANALYSIS:

Under the "American Rule," each party is generally required to bear its own attorney's fees. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 1616, 44 L.Ed.2d 141 (1975). While recognizing the wisdom of this general rule, Congress has seen fit to enact a number of specific provisions providing for the award of attorney's fees to the prevailing party under selected statutes protecting various federal rights. See Alyeska, 95 S.Ct. at 1623 n. 33 for a list of these statutes. Since Alyeska was handed down, Congress has enacted more than ninety statutes authorizing the award of attorney's fees in specified situations. See 4 Fed. Attorney Fee Awards Rep. 2-3 (Harcourt Brace Jovanovich) No. 6 (October 1981).

While prevailing defendants in civil rights cases may be awarded attorney's fees only where plaintiff's action was frivolous, unreasonable, or without foundation, Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978), prevailing plaintiffs in such cases "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968) [hereinafter Newman rule]. See also Roadway Express, Inc. v. Piper, 447 U.S. 752, 100 S.Ct. 2455, 2462, 65 L.Ed.2d 488 (1980); New York Gaslight Club Inc. v. Carey, 447 U.S. 54, 100 S.Ct. 2024, 2033, 64 L.Ed.2d 723 (1980); Christiansburg Garment Co., 98 S.Ct. at 698; Northcross v. Board of Education of Memphis City Schools, 412 U.S. 427, 93 S.Ct. 2201, 2202, 37 L.Ed.2d 48 (1973).

The Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C.A. Sec. 1988 (West 1981), provides that courts may award a reasonable attorney's fee to a prevailing party in certain civil rights actions. ³ In enacting section 1988, Congress expressly stated that "[a] party seeking to enforce the rights protected by the statutes covered by [this Act], if successful, 'should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.' Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 [88 S.Ct. 964, 966, 19 L.Ed.2d 1263] (1968)." S.Rep. No. 94-1011, 94th Cong., 2d Sess. 4, reprinted in 1976 U.S.Code Cong. & Ad.News 5908, 5912. Congress explained the policy considerations underlying Sec. 1988 in the following terms:

[The] civil rights laws depend heavily upon private enforcement, and fee...