Knights of Ku Klux Klan, Realm of Louisiana v. East Baton Rouge Parish School Bd.

Decision Date09 July 1984
Docket NumberNo. 83-3292,83-3292
Citation735 F.2d 895
PartiesKNIGHTS OF the KU KLUX KLAN, REALM OF LOUISIANA, Plaintiff-Appellee, v. EAST BATON ROUGE PARISH SCHOOL BOARD, Defendant-Appellee, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (formerly U.S. Department of Health, Education and Welfare), Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Margaret E. Clark, William Kanter, Civil Div., Appellate Staff, Dept. of Justice, Washington, D.C., for defendant-appellant.

Lawrence R. Anderson, Jr., Baton Rouge, La., for Ku Klux Klan.

John F. Ward, Jr., Robert L. Hammonds, Baton Rouge, La., for East Baton Rouge Parish School Bd.

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

Before JOHNSON, HIGGINBOTHAM and DAVIS, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

The United States Department of Health and Human Services, formerly HEW, appeals an attorney's fee award under the Equal Access to Justice Act, 28 U.S.C. Sec. 2412 et seq., in favor of the Ku Klux Klan. The government argues that contrary to 28 U.S.C. Sec. 2412(d) attorney fees were awarded without regard to the substantiality of its legal position. We conclude that the district court properly awarded fees under 28 U.S.C. Sec. 2412(b), which authorizes an award of attorney fees against the federal government for its participation in actions violative of 42 U.S.C. Sec. 1983 without regard to the strength of the government's litigation position. We also decide that post-judgment interest on attorney fees cannot be awarded against the federal government, it not having consented to such awards. We affirm in part and reverse in part.

I

In 1975 the Klan sought to enjoin the East Baton Rouge Parish School Board from preventing the Klan from using a public high school as a meeting place. The merits were decided in the Klan's favor in January 1979, and for the past five years the sole issue has been attorney's fees. The facts are not in dispute and have been detailed in our earlier opinions. See 578 F.2d 1122 (5th Cir.1978) (KKK I ), 643 F.2d 1034 (5th Cir.1981) (KKK II ), 679 F.2d 64 (5th Cir.1982) (KKK III ). We set out only those facts essential to our decision.

It was the custom of the school board that facilities of the district be let to organizations on a "first-come first-serve" basis without regard to the political or ideological views of the renters. On November 17, 1975, the board approved a Klan request to rent a gymnasium for Saturday evening, November 22.

On November 19, 1975, Dr. John Bell, Branch Chief of the Dallas Office for Civil Rights of HEW, notified the Board that allowing the Klan to use Board facilities would violate the Emergency School Aid Act, 20 U.S.C. Sec. 1601 et seq., and Title VI, 42 U.S.C. Sec. 2000d et seq., causing termination of all federal financial assistance to the school district.

The next day, the Board withdrew its permission to rent to the Klan and declared a moratorium on all private use of school facilities. The following evening, Bell wired the Board again, retreating to the position that any use protected by the first amendment could not be grounds for an enforcement action. The Board, however, continued to refuse the Klan permission to hold the meeting at the school.

The Klan launched an unsuccessful effort to obtain injunctive relief in the district court, urging that the refusal to rent violated the Constitution and 42 U.S.C. Sec. 1983 et seq. The Klan later added claims under 42 U.S.C. Secs. 1985 and 1986, and joined the United States, HEW, Bell and another HEW official as additional defendants. When the Board later announced a new policy under which applicants' ideologies were to be considered in the rental decision, the Klan turned its fire on that policy as well.

At an April 1976 hearing on the Klan's application for preliminary injunction, the district court dismissed the suit, finding that the Board's original refusal to allow the Klan use of the facility was proper and that the new policy of weighing ideas was enforceable against the Klan. In support of this judgment, HEW and the school board argued for the first time on appeal that Klan meetings were open to the public only on a racially discriminatory basis, that the meeting might lead to violence, and that the Klan's use of the gym would impede school desegregation and HEW's ability to enforce statutes that proscribe racially discriminatory acts. We reversed, enjoined the Board's new rental policy and remanded for trial. KKK I, 578 F.2d 1122.

On remand, the district court permanently enjoined the Board's policy of considering the ideologies of rental applicants and ordered non-discriminatory guidelines for the letting of its facilities. The district court also permanently enjoined HEW from interfering with the Klan's use of school facilities except as consistent with Title VI or the Emergency School Aid Act. The district court then awarded attorney's fees solely against the United States.

On appeal we held that, since 42 U.S.C. Sec. 1988 did not waive sovereign immunity, the United States was not liable for attorney's fees, but we concluded that the Board could be liable for attorney's fees under 42 U.S.C. Sec. 1988 because it violated 42 U.S.C. Sec. 1983. ("Ultimately, the decision [to adopt the invalidated policy] was one for the Board alone to make.") KKK II, 643 F.2d at 1040. We remanded to the district court to award attorney's fees against the Board.

While KKK II was pending before the Supreme Court, the Equal Access to Justice Act was enacted, 5 U.S.C. Sec. 504, 28 U.S.C. Sec. 2412 (1982), and the Supreme Court remanded for reconsideration in its light. 454 U.S. 1075, 102 S.Ct. 626, 70 L.Ed.2d 609 (1981). On remand, we held that the EAJA applied retroactively, Klan III, 679 F.2d 64, and again remanded to the district court, instructing it to determine which provision of the EAJA was applicable to the government's liability for attorney's fees. On remand the district court awarded ninety percent of the attorney's fees against the government. The government appeals.

II

Before enactment of the EAJA, 28 U.S.C. Sec. 2412 barred attorney's fee awards to prevailing parties in civil actions brought by or against the United States, unless specifically provided for by statute. 1 The EAJA added two statutory exceptions to this rule. 28 U.S.C. Secs. 2412(b), (d)(1)(A). 2 Under section 2412(b) the federal government is subject to common law 3 and statutory exceptions to the American Rule forbidding fee-shifting. See Conference Rep., H.R.Rep. No. 1434, 96th Cong., 2d Sess. 21, reprinted in 1980 U.S.Code Cong. & Ad.News 4953, 5010; H.R.Rep. No. 1418, 96th Cong., 2d Sess. 9, reprinted in 1980 U.S.Code Cong. & Ad.News 4987. Under Section 2412(d), prevailing parties meeting financial eligibility requirements will be awarded attorney's fees against the United States unless its position was substantially justified or special circumstances make an award unjust. Because we find the government liable under a fee-shifting statute incorporated by section 2412(b), we do not reach the parties' contentions regarding section 2412(d).

The Klan argues that Sec. 2412(b) supports the attorney's fee award against the government because it was a "prevailing party" and because Sec. 2412(b) incorporates specific fee-shifting provisions, here the Civil Rights Attorney's Fee Awards Act of 1976, 42 U.S.C. Sec. 1988, which, in turn, makes the government liable for attorney's fees for violating section 1983. Section 2412(b) provides:

Unless expressly prohibited by statute, a court may award reasonable fees and expenses of attorneys, in addition to the costs which may be awarded pursuant to subsection (a), to the prevailing party in any civil action brought by or against the United States or any agency and any official of the United States acting in his or her official capacity in any court having jurisdiction of such action. The United States shall be liable for such fees and expenses to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such an award.

Of course, section 1988 specifically allows for attorney's fees where a party violates 42 U.S.C. Sec. 1983, 4 and the argument is that section 1988 is thus a fee-shifting statute comprehended by section 2412(b). The argument continues that section 1983 was violated when federal officials conspired with state officials--the Board--who in turn violated the Klan's constitutional rights under color of state law.

III

The district court did not explain whether its award of attorney's fees was made pursuant to section 2412(b) or (d). The government asserts that the Klan waived any right to fees under section 2412(b) because it did not argue section 2412(b) in the district court, and in any event the district court awarded fees pursuant to section 2412(d).

We are persuaded that the Klan did not waive any rights under 2412(b). In Klan III we remanded to determine whether the Klan qualified under section 2412(b) or (d). 679 F.2d at 69. The Klan's request to the district court for attorney's fees invoked our opinion in Klan III but, as the government emphasizes, did not specifically cite section 2412(b). But it also did not cite section 2412(d).

The government argues that because the district court expressly found that the Klan met 2412(d)'s financial eligibility requirements, and these requirements do not apply to 2412(b), see Klan III, 679 F.2d at 67, the district court intended to rest its fee award upon section 2412(d). But this argument is unconvincing because, while the district court discussed the Klan's financial eligibility, it did not discuss whether the government's position was "substantially justified," an analysis required by Sec. 2412(d), but not relevant to Sec. 2412(b). In short, the signals as to which section the district court applied and which sections...

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