National Ass'n for Advancement of Colored People v. Civiletti, s. 78-1639

• Decision Date: 04 January 1980
• Docket Number: Nos. 78-1639,78-2039,s. 78-1639
• Citation: 197 U.S.App.D.C. 259,609 F.2d 514
• Parties: The NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE et al. v. Benjamin R. CIVILETTI, in his Official Capacity as the Attorney of the United States, et al., Appellants. Marilyn W. ANDRULIS et al. v. UNITED STATES of America et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 514

609 F.2d 514 197 U.S.App.D.C. 259 The NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE et al.
v.
Benjamin R. CIVILETTI, in his Official Capacity as the
Attorney of the United States, et al., Appellants.
Marilyn W. ANDRULIS et al.
v.
UNITED STATES of America et al., Appellants. Nos. 78-1639, 78-2039. United States Court of Appeals,
District of Columbia Circuit. Argued April 23, 1979.
Decided Sept. 26, 1979.
Rehearing Denied Jan. 4, 1980.

Janis Sposato, Atty., Dept. of Justice, Washington, D. C., a member of the bar of the Supreme Court of Connecticut, pro hac vice, by special leave of court, with whom Barbara Allen Babcock, Asst. Atty. Gen., Washington, D. C., at the time the brief was filed, Earl J. Silbert, U. S. Atty. Gen., Washington, D. C., at the time the brief was filed, and William Kanter and Mark H. Gallant, Attys., Dept. of Justice, Washington,

Page 515

D. C., were on the brief, for appellant in No. 78-2039. Dennis A. Dutterer, Asst. U. S. Atty., Washington, D. C., entered an appearance for appellant in No. 78-2039.

Cynthia L. Attwood, Atty., Dept. of Justice, Washington, D. C., with whom Drew S. Days III, Asst. Atty. Gen., Earl J. Silbert, U. S. Atty., Washington, D. C., at the time the brief was filed, and Walter W. Barnett, Atty., Dept. of Justice, Washington, D. C., were on the brief, for appellants in No. 78-1639.

J. Francis Pohlhaus, Washington, D. C., for appellee in No. 78-1639.

I. Michael Greenberger, Washington, D. C., for appellee in No. 78-2039.

Linda R. Singer and Ronald A. Schechter, Washington, D. C., were on the brief for amicus curiae, urging affirmance in No. 78-2039 only.

Before WRIGHT, Chief Judge, WILKEY, Circuit Judge, and LARSON, Senior District Judge. ^*

Opinion for the court filed by Senior District Judge LARSON.

Dissenting opinion filed by Chief Judge J. SKELLY WRIGHT.

LARSON, Senior District Judge:

The above-captioned cases are consolidated on appeal because both raise the same central issue that is, whether the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, permits an award of fees against the United States. After careful deliberation, we conclude that the Awards Act does not operate as a waiver of sovereign immunity in this context. Therefore, as to the award of attorney's fees by the courts below, we reverse.

In Andrulis v. United States, plaintiffs Dr. Marilyn W. Andrulis and Andrulis Research Corporation (ARC) brought an action for damages, declaratory and injunctive relief in which they alleged, Inter alia, that ARC had been unlawfully terminated from a program administered by the Small Business Administration (SBA) pursuant to § 2(8)(a) of the Small Business Act, 15 U.S.C. § 637(a). Section 8(a) empowers the SBA to enter into contracts with other federal departments and agencies and to arrange, without competitive bidding, for the performance of these contracts by small business concerns. In their complaint, plaintiffs charged that ARC had been excluded from the § 2(8)(a) program as a result of race and sex discrimination in violation of 42 U.S.C. §§ 1981, 1985(3) and 2000d.

On November 11, 1977, the district court ¹ issued a temporary restraining order in the Andrulis case. Thereafter, the SBA agreed to reinstate ARC as a participant in the § 2(8)(a) program and the parties entered into a consent decree to that effect. Relying upon 42 U.S.C. § 1988, plaintiffs next applied for and were granted $18,739.00 in attorney's fees and $1,135.03 in costs and disbursements. As to the award of attorney's fees, the government appeals.

NAACP v. Civiletti, the second case before this Court, grew out of the fatal shooting in 1971 of Carnell Russ, a black male, by a white Arkansas law enforcement officer in the course of an arrest for a traffic violation. The officer was subsequently acquitted of manslaughter charges by a state court jury. After reviewing the transcript of the trial proceedings, as well as FBI reports, the Department of Justice decided not to prosecute anyone under the federal criminal civil rights statute, 18 U.S.C. § 242.

Following the decision not to prosecute, the NAACP and the Russ family brought suit under the Civil Rights Act, 42 U.S.C. §§ 1981 and 1985, challenging the adequacy of the federal investigation and the decision not to prosecute. In essence, plaintiffs claimed that the Justice Department had

Page 516

deferred unlawfully to the state proceedings pursuant to a policy established in 1959 by then Attorney General William Rogers of not following a state prosecution with a federal trial for the same act absent compelling reasons. Plaintiffs charged that this policy was unreasonable and racially discriminatory as applied in the Russ case.

In February 1977, while this suit was pending in the district court, Attorney General Griffin Bell issued a memorandum dealing with prosecutions of civil rights violations by the Justice Department. The memorandum indicated that the Department would henceforth evaluate "each and every allegation of a violation of the civil rights laws . . . on its own merits" irrespective of related state enforcement action. Agreeing that the Bell memorandum effectively mooted plaintiffs' claim, the parties to this action moved jointly to dismiss. The district court ² granted the motion and plaintiffs subsequently sought and were awarded $26,300.00 in attorney's fees and $612.25 in costs under 42 U.S.C. § 1988. The decision to award attorney's fees is the subject of this appeal.

To recover attorney's fees against the United States, a prevailing party must first surmount a formidable barrier, the doctrine of sovereign immunity. Under well established precedent, waivers of federal sovereign immunity "cannot be implied but must be unequivocally expressed." United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1503, 23 L.Ed.2d 52 (1969). With respect to awards of attorney's fees, the policy against implied waivers of federal sovereign immunity is embodied in 28 U.S.C. § 2412 ³ which has been consistently construed as immunizing the United States against attorney's fees awards absent clear or express statutory authority to the contrary. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 267-68, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975); Fitzgerald v. United States Civil Service Commission, 180 U.S.App.D.C. 327, 330, 554 F.2d 1186, 1189 (D.C.Cir.1977); Natural Resources Defense Council, Inc. v. EPA, 168 U.S.App.D.C. 111, 113, 512 F.2d 1351, 1353 (D.C.Cir.1975). Such clear statutory authority may be found in language referring specifically to the liability of the United States. Thus, for example, Title II of the Civil Rights Act of 1964 provides:

"In any action commenced pursuant to this subchapter, 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, and The United States shall be liable for costs the same as a private person." 42 U.S.C. § 2000a-3(b) (emphasis added). ⁴

Alternatively, statutory authorization may be inferred by necessary implication from the statutory context in which a

Page 517

fee provision arises. This rationale was central to the First Circuit's conclusion in Natural Resources Defense Council, Inc. v. EPA, 484 F.2d 1331 (1st Cir. 1973), that an award of attorney's fees against the federal government was authorized under § 304(d) of the Clean Air Act, 42 U.S.C. § 7604. In that case, the government contended, Inter alia, that a prevailing party in a citizen suit brought against the United States under § 304 of the Act could not obtain attorney's fees from the federal government because the attorney's fee provision of § 304(d), ⁵ while providing for recovery by "any party," did not specifically mention the United States by name. The First Circuit responded by noting that the government's "reading of the statute is in sharp conflict with its plain words, which authorize the award against 'any party' and which, in § 304(a), specifically authorize suits with the United States as a party." 484 F.2d at 1336, n.5. Because § 304(a) of the Clean Air Act specifically permitted suits against the Administrator of the EPA, the necessary implication was that Congress had intended the fee provision of § 304(d), which made express reference to § 304(a), to allow recovery against the United States.

In the context of the above discussion, the question before this Court is whether the Civil Rights Attorney's Fees Awards Act of 1976 expressly authorizes the recovery of fees against the United States so as to overcome the barrier of sovereign immunity contained in 28 U.S.C. § 2412. As amended, 42 U.S.C. § 1988 provides in relevant part:

"In any action or proceeding to enforce a provision of sections (1981, 1985 or 2000d of Title 42) 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." ⁶

Appellees submit that the Awards Act by its plain language clearly and unequivocally permits awards of attorney's fees against the United States by authorizing a fee award in "any action or proceeding" to enforce, Inter alia, the Reconstruction Era Civil Rights statutes (42 U.S.C. §§ 1981-1983, 1985, 1986) and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d. Appellees find support for their position in Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978), in which the Supreme Court held the language of the Awards Act sufficient to overcome the immunity granted the states under the Eleventh Amendment to the United States Constitution. In so holding, the Court stated:

"The Act itself could not be broader. It applies to 'any' action brought to enforce certain civil rights laws. It contains no hint of an exception for State defending injunction actions; . . . ." 98 S.Ct. at 2575.

Similarly, appellees contend, the Awards Act contains no hint of an exception for the federal government.

In their...