Knights of Ku Klux Klan, Realm of Louisiana v. East Baton Rouge Parish School Bd., 79-1780

• Decision Date: 23 February 1981
• Docket Number: No. 79-1780,79-1780
• Citation: 643 F.2d 1034
• Parties: KNIGHTS OF the KU KLUX KLAN, REALM OF LOUISIANA, Plaintiff-Appellee-Cross- Appellant, v. EAST BATON ROUGE PARISH SCHOOL BOARD et al., Defendants-Cross-Appellees, U. S. Department of Health, Education and Welfare, Defendant-Appellant- Cross-Appellee. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1034

643 F.2d 1034

KNIGHTS OF the KU KLUX KLAN, REALM OF LOUISIANA Plaintiff-Appellee-Cross- Appellant, v. EAST BATON ROUGE PARISH SCHOOL BOARD et al Defendants-Cross-Appellees U. S. Department of Health, Education and Welfare Defendant-Appellant- Cross-Appellee.

No. 79-1780.

United States Court of Appeals, Fifth Circuit.

Unit A

Feb. 23, 1981.

Donald L. Beckner, U. S. Atty., C. Michael Hill, Baton Route, La., Joseph B. Scott, Atty., U. S. Dept. of Justice, Civ. Div., Appellate Staff, Washington, D. C., William Kanter, Wendy M. Keats, Stuart E. Schiffer, Alice Daniel, Acting Asst. Attys. Gen., Atty. Gen. Office, U. S. Dept. of Justice, Washington, D. C., for H. E. W.

Newman, Duggins, Drolla, Gamble & Anderson, Lawrence R. Anderson, Jr., Baton Rouge, La., for plaintiff-appellee-cross-appellant.

John F. Ward, Jr., Baton Rouge, La., for East Baton Rouge.

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

Before GOLDBERG, POLITZ and SAM D. JOHNSON, Circuit Judges.

PER CURIAM:

As of November 1975, the East Baton Rouge Parish School Board (the Board) maintained a policy of allowing organizations to rent its facilities for meetings on a first come, first served basis. In early November of 1975 the Knights of the Ku Klux Klan, Realm of Louisiana (plaintiff) requested and was granted permission to use a high school gymnasium for a "patriotic" meeting. On November 19, however, Dr. John Bell, chief of the Dallas branch office for civil rights for the United States Department of Health, Education, and Welfare (HEW) informed the Board that if plaintiff's proposed meeting were permitted the Department would institute enforcement proceedings seeking the termination of all Emergency School Aid Act funds to the school district. ESAA regulations deny federal funding to any agency permitting the use of its facilities by any group that discriminates against minority children. See 20 U.S.C. § 1601 et seq.; 45 C.F.R. § 185.43(d)(3). Dr. Bell also informed the Board that plaintiff's use of the facilities would also violate Title VI and thus "trigger an enforcement action ... to end all federal financial assistance to your district." Faced with the possible loss of its federal funding, the Board withdrew permission for the meeting the next day, November 20.

The following day, however, Dr. Bell acknowledged in a telegram to the Board that if the first amendment required that plaintiff's use of the school facilities be permitted, such a use could not be grounds for an enforcement action under any federal program. Unsure of what to do, the Board took no action to reverse the cancellation. Plaintiff filed suit on November 21, 1975, pursuant to, inter alia, 42 U.S.C. § 1983 and the first and fourteenth amendments of the United States Constitution. The district court denied plaintiff's motion for a temporary restraining order on November 22, 1975. On December 10, 1975 plaintiff amended its complaint to include the federal defendants and asserted claims under, inter alia, 42 U.S.C. §§ 1985 and 1986. The Board maintained a moratorium on outside use of school facilities until February 19, 1976, when the Board adopted a policy that prohibited use of school facilities to any group advocating racial discrimination. Plaintiff subsequently amended its complaint to include an attack on the new policy.

Following a hearing on April 20, 1976, the district court denied plaintiff's motion for preliminary and permanent injunctive relief, and dismissed the suit. The district court's order was reversed by this Court in Knights of the Ku Klux Klan, Realm of Louisiana v. East Baton Rouge Parish School Board, 578 F.2d 1122 (5th Cir. 1978).

Following remand by this Court, the district court entered a judgment and injunction order that set general nondiscriminatory guidelines to which the Board must adhere in making its facilities available to the public. The court also permanently enjoined HEW "from interfering or attempting to interfere with (plaintiff's) use of school facilities." The order also stated that the costs of the proceeding were to be taxed against HEW.

In response to plaintiff's motion for attorneys' fees, the district court issued a second order in which it assessed costs and attorneys' fees for the injunction proceeding in the amount of $11,920.41 against HEW. In so doing, the court expressly released the School Board from any liability for attorneys' fees. HEW appeals from the award of attorneys' fees against it. Plaintiff cross-appeals from the district court's refusal to impose attorneys' fees against the School Board as well as against HEW. ¹

I.

28 U.S.C. § 2412 provides in part:

Except as otherwise specifically provided by statute, a judgment for costs, as enumerated in section 1920 of this title but not including the fees and expenses of attorneys may be awarded to the prevailing party in any civil action brought by or against the United States or any agency or official of the United States acting in his official capacity, in any court having jurisdiction of such action.

This section has been consistently interpreted as preserving the sovereign immunity of the United States against awards of attorneys' fees absent a clear or express statutory waiver. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 267-68, 95 S.Ct. 1612, 1626-27, 44 L.Ed.2d 141 (1975). A waiver may arise in two ways. First, a statute may explicitly impose liability for attorneys' fees upon the United States. ² Secondly, a waiver of immunity may arise by "necessary implication" from the context of the statute. See Natural Resources Defense Counsel, Inc. v. EPA, 484 F.2d 1331 (1st Cir. 1973).

Wholly apart from the question of sovereign immunity, another obstacle prevents federal court litigants from recovering attorneys' fees in most cases. Unlike the British courts, American courts traditionally have denied attorneys' fees to prevailing parties. See Blue v. Bureau of Prisons, 570 F.2d 529, 531-32 (5th Cir. 1978). Although courts have recognized exceptions to this "American Rule," ³ the policy requiring each party to bear its own cost of counsel has remained largely intact.

In an effort to expand the class of prevailing parties entitled to recover attorneys' fees, federal courts developed the "private attorney general" theory, under which private litigants are compensated when they vindicate an important public policy. See Fairley v. Patterson, 493 F.2d 598, 606 (5th Cir. 1974). In Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), however, the Supreme Court rejected this theory, and held that because Congress traditionally has enacted attorneys' fees provisions, and because federal courts are ill-equipped to "pick and choose" the public policy interests deserving of such added protection, federal courts should not "make major inroads on a policy matter that Congress has reserved for itself." 421 U.S. at 269, 95 S.Ct. at 1627. See 570 F.2d at 532.

II.

In the present case, the district court referred to no statutory or other authority to support its award of attorneys' fees against HEW. Plaintiff argues that the Civil Rights Attorneys' Fees Awards Act of 1976, 42 U.S.C. § 1988, is such authority. The Awards Act, which was enacted largely in response to the Supreme Court's decision in Alyeska ⁴ provides in relevant part:

In any action or proceeding to enforce a provision of section (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.

Plaintiff asserts that this language is sufficient to waive sovereign immunity for attorneys' fees. In Hutto v. Finney, 437 U.S. 678, 694, 98 S.Ct. 2565, 2575, 57 L.Ed.2d 522 (1978), the Supreme Court held that the Awards Act evinced a congressional intent to subject the states to liability for attorneys' fees:

The Act itself could not be broader. It applies to "any" action brought to enforce certain civil rights laws.

Plaintiff's interpretation is supported neither by Hutto nor by the language of the Act. In upholding an award of attorneys' fees against a state in Hutto, the Supreme Court placed controlling significance on the fact that, in enacting the Awards Act, Congress imposed attorneys' fees "as a part of costs." Whereas the states traditionally have been liable for costs without regard to claims of sovereign immunity, 98 S.Ct. at 2576, the federal government is liable for costs only to the extent authorized by statute, and section 2412 specifically excludes attorneys' fees from the costs for which immunity is waived. 28 U.S.C. § 2412. Consequently, that the Awards Act allows the recovery of attorneys' fees against the states does not, with respect to the federal government, compel a similar conclusion.

Comparison of the language of the Awards Act with other statutes allowing recovery of attorneys' fees further demonstrates the absence of legislative intent to waive federal sovereign immunity with respect to attorneys' fees. Although the Act's reference to "any action" certainly is broad, when waiving federal sovereign immunity for attorneys' fees in other statutes, Congress has spoken with unmistakable clarity. For example, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k), provides in part that a reasonable attorneys' fee may be awarded as a part of the costs, and that "the United States shall be liable for costs the same as a private person." See also, 5 U.S.C. § 552(a)(4)(E); 42 U.S.C. §§ 2000a-3(b), 2000b-1. The Awards Act simply does not possess the same degree of specificity that Congress has deemed necessary when waiving federal sovereign immunity for attorneys' fees in other statutes, and therefore falls short of the "clear or express" language necessary to satisfy section 2412.

III.

Plaintiff argues that if the "any action" language of the Awards Act does not...