Members, Bridgeport Hous. Auth. Police v. Bridgeport, Civ. No. B-77-130.

• Decision Date: 31 May 1983
• Docket Number: Civ. No. B-77-130.
• Citation: 564 F. Supp. 2
• Parties: MEMBERS OF THE BRIDGEPORT HOUSING AUTHORITY POLICE, et al., Plaintiffs, v. CITY OF BRIDGEPORT, et al., Defendants.
• Court: U.S. District Court — District of Connecticut

564 F. Supp. 2

MEMBERS OF THE BRIDGEPORT HOUSING AUTHORITY POLICE, et al., Plaintiffs, v. CITY OF BRIDGEPORT, et al., Defendants.

Civ. No. B-77-130.

United States District Court, D. Connecticut.

November 18, 1982.

Opinion on Second Ruling on Application for Attorney's Fees May 31, 1983.

COPYRIGHT MATERIAL OMITTED

David N. Rosen, Rosen & Dolan, P.C., New Haven, Conn., for plaintiffs.

Thomas K. Jackson, Cheryl A. Rodriguez, Bridgeport, Conn., for defendants.

RULING ON APPLICATION FOR AWARD OF ATTORNEY'S FEE AND COSTS

DALY, Chief Judge.

Plaintiffs brought this action alleging violations of 42 U.S.C. §§ 1981, 1982, 1983, 1985; Title VII of the Civil Rights Act of 1964; the Demonstration Cities and Metropolitan Development Program (Model Cities Act), 42 U.S.C. § 3301 et seq.; and the Comprehensive Employment and Training Act (CETA), 29 U.S.C. §§ 801-999. Although initially prevailing against the City of Bridgeport in this court on the Title VII, § 1981, § 1983, Model Cities Act, and CETA claims, see Members of the Bridgeport Housing Authority Police v. City of Bridgeport, 85 F.R.D. 624 (D.Conn.1980), plaintiffs ultimately prevailed only on a violation of the Model Cities Act. Members of the Bridgeport Housing Authority Police v. City of Bridgeport, 646 F.2d 55, 62 (2d Cir.) cert. denied 454 U.S. 897, 102 S.Ct. 397, 70 L.Ed.2d 213 (1981). The issue presently before the court is whether the victory ultimately realized establishes that plaintiffs are entitled, as a "prevailing party" under 42 U.S.C. § 1988, to a reasonable attorney's fee as part of costs in this litigation.

Section 1988 of Title 42 of the United States Code provides that, in actions brought pursuant to certain designated statutes, the court "may allow the prevailing party ... a reasonable attorney's fee as part of the costs." A party is not required to prevail on all claims to come under the purview of "prevailing party" within the meaning of the statute. United States v. Board of Ed., 605 F.2d 573, 576 (2d Cir.1979) (discussing § 1988 standard); Busche v. Burkee, 649 F.2d 509, 520-21 (7th Cir.) cert. denied 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981). Further, it has been held to be sufficient that a plaintiff "succeed on any significant issue in the litigation which achieves some sort of benefit the parties sought in bringing the suit." See United States v. Board of Ed., 605 F.2d 573, 576 (2d Cir.1979) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir.1978)); Busche v. Burkee, 649 F.2d 509, 521 (7th Cir.1981). "Once it has been determined that plaintiff obtained benefits for the class ..., plaintiff is the `prevailing party' within the meaning of the statute." Gagne v. Maher, 594 F.2d 336, 340 (2d Cir.1979) (involving consent decree) aff'd 448 U.S. 122, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980). As a result of the legislative intent, courts have liberally construed the "prevailing party" language of the statute. "Prevailing party" status has even been afforded intervenor plaintiffs who lost their individual claims but nevertheless established a probable classwide violation. Davis v. Board of School Comm'rs, 600 F.2d 470, 475 (5th Cir. 1979). This court is guided by the above-noted interpretations of § 1988 in finding that plaintiffs are indeed prevailing parties in this litigation.

Plaintiffs in the instant case prevailed by establishing that the City of Bridgeport violated their rights under the Model Cities Act. Members of the Bridgeport Housing Authority Police v. City of Bridgeport, 646 F.2d 55, 62 (2d Cir.1981). As a remedy for this violation, the members of the Housing Authority Police were given civil service status. Id. at 63. This court is of the opinion that this success is a benefit for the class sufficient to find that plaintiffs are a "prevailing party" within the meaning of the statute. Stated in another way, the victory on the Model Cities Act question and the awarding of civil service status as a remedy is a success on a sufficiently important issue that achieves some sort of benefit sought in bringing the action. Thus, with respect to both the extent that plaintiffs prevailed and the remedy obtained, plaintiffs constitute a "prevailing party" within the meaning of 42 U.S.C. § 1988.

The City of Bridgeport, however, argues that plaintiffs are not "prevailing parties" on two other grounds. First, plaintiffs prevailed on the Model Cities Act, a statute that is not one of the designated statutes to which an attorney's fee award applies. See 42 U.S.C. § 1988. Second, even if the Model Cities Act claim can be viewed as having been brought under § 1983, see Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), its citation does not trigger an attorney's fee award under § 1988 "where § 1983 has no greater role than the statute which it purportedly `enforces.'" Tatro v. Texas, 516 F.Supp. 968, 984 (N.D.Tex.1981); Noe v. Ambach, 542 F.Supp. 70, 72 (S.D.N.Y.1982) (citing Tatro).

Addressing the former contention first, the court notes that this was answered by the decision of the Court of Appeals in this matter. The Court there found that plaintiffs had a private right of action under 42 U.S.C. § 1983 to enforce rights under the Model Cities Act. Members of the Bridgeport Housing Authority Police v. City of Bridgeport, 646 F.2d 55, 62 (2d Cir.1981). Thus, plaintiffs' method of prevailing in this case was under § 1983 and accordingly plaintiffs' action comes within the list of statutes for which § 1988 permits an attorney's fee award.

In addressing the City's second contention and based upon the opinion of the Court of Appeals, it cannot be said that § 1983 played "no role but that of allowing attorney fees" in this case. Tatro v. Texas, 516 F.Supp. 968, 984 (N.D.Tex.1981). This court had determined, under the guidelines of Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087, 45 L.Ed.2d 26 (1975), that plaintiffs had a private right of action that was implied from the Model Cities Act. Members of the Bridgeport Housing Authority Police v. City of Bridgeport, 85 F.R.D. 624, 632-34 (D.Conn.1980). On appeal, however, the Court of Appeals chose not to decide whether a private right of action can be inferred from the Model Cities Act, but rather based the private right of action squarely on § 1983, relying on Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980). Members of the Bridgeport Housing Authority Police v. City of Bridgeport, 646 F.2d 55, 62 (2d Cir.1981). The Court of Appeals decided, and it is now the law of the case, that plaintiffs had a right secured under the Model Cities Act that was remediable through § 1983. Thus, § 1983 was the basis for the private right of action and was not solely limited to triggering an attorney's fee award under § 1988.

Supreme Court decisions subsequent to both Maine v. Thiboutot and the decision of the Court of Appeals in this matter, suggest only two limitations to the rule that § 1983 can be the vehicle for private persons to enforce rights under a federal statute.¹ These limitations are (1) where Congress has foreclosed a § 1983 remedy through sufficiently comprehensive remedial devices in the statute at issue and (2) where the statute at issue does not create "rights" enforceable under § 1983. Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 101 S.Ct. 2615, 2626, 69 L.Ed.2d 435 (1981); see Pennhurst State School & Hosp. v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 1545, 67 L.Ed.2d 694 (1981); Miener v. Missouri, 673 F.2d 969, 976 (8th Cir.1982). Dealing with the latter limitation first and as noted above, the Court of Appeals found that plaintiffs were denied "a right secured by a federal statute," i.e. the Model Cities Act. Members of the Bridgeport Housing Authority Police v. City of Bridgeport, 646 F.2d 55, 62 (2d Cir.1981).

With respect to the comprehensive remedial devices issue, the question is essentially one of legislative intent. Ruth Anne M. v. Alvin Indep. School Dist., 532 F.Supp. 460, 474 (S.D.Tex.1982). "When the remedial devices provided in a particular act are sufficiently comprehensive, they may suffice to demonstrate congressional intent to preclude the remedy of suits under § 1983." Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 101 S.Ct. 2615, 2626, 69 L.Ed.2d 435 (1981). Courts recently addressing the issue that have found sufficiently comprehensive remedial devices evidencing an exclusive congressional intent, have not permitted accompanying § 1983 claims to stand. See Anderson v. Thompson, 658 F.2d 1205, 1214-17 (7th Cir.1981) (Education for All Handicapped Children Act EAHCA, 20 U.S.C. §§ 1401 et seq.); Noe v. Ambach, 542 F.Supp. 70, 72-73 (S.D.N.Y.1982) (EAHCA); Turillo v. Tyson, 535 F.Supp. 577, 580-81 (D.R.I.1982) (EAHCA); Ruth Anne M. v. Alvin Indep. School Dist., 532 F.Supp. 460, 473 (S.D.Tex.1982) (EAHCA). Conversely, courts which have found this exclusive congressional intent to be absent, have allowed accompanying § 1983 claims to proceed. See Spanish American Coalition v. Connecticut Dept. of Ed., No. B-81-173, slip op. at 6 (D.Conn. March 30, 1982) (Burns, J.) (Equal Educational Opportunity Act, 20 U.S.C. § 1701 et seq.); Consortium of Community Based Org. v. Donavan, 530 F.Supp. 520, 536-39 (E.D.Cal.1982) (CETA). An important factor in finding a legislative intent to have the remedial devices in an act be the exclusive remedies for violations of that act, is when the statute itself contains an express private right of action. Anderson v. Thompson, 658 F.2d 1205, 1215 (7th Cir.1981); Noe v. Ambach, 542 F.Supp. 70, 73 (S.D.N.Y.1982); Ruth Anne M. v. Alvin Indep. School Dist., 532 F.Supp. 460, 474 (S.D.Tex.1982).

In the instant case, the Model Cities Act, by its terms, provides no express private right of action. That situation forced this court to initially reach the issue of whether there was an implied private right of action under the Model Cities Act....