Rahmey v. Blum
| Decision Date | 29 August 1983 |
| Citation | 95 A.D.2d 294,466 N.Y.S.2d 350 |
| Parties | In the Matter of Nathan RAHMEY, Appellant, v. Barbara BLUM, as Commissioner of the New York State Department of Social Services, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Westchester Legal Services, Inc., Yonkers (Lawrence Alexander and Martin A. Schwartz, White Plains, of counsel), for appellant.
New York State Bar Ass'n, Albany, (Dana H. Freyer, Albany, of counsel), amicus curiae.
Robert Abrams, Atty. Gen., New York City , for respondent State Com'r.
Samuel S. Yasgur, County Atty., White Plains (Lester D. Steinman and Annalinda P. Ragazzo, Asst. County Attys., White Plains, of counsel), for respondent Charles W. Bates.
Before BRACKEN, J.P., and NIEHOFF, RUBIN and BOYERS, JJ.
This appeal brings up for review the issue of awards of attorney's fees under section 1988 of title 42 of the United States Code.
Petitioner, a recipient of food stamps, commenced this proceeding pursuant to CPLR article 78 to set aside a determination of the State Commissioner of the Department of Social Services, dated September 19, 1980, made after a statutory fair hearing, which affirmed the Westchester County Department of Social Service's (hereinafter agency's) decision to discontinue petitioner's food stamp authorization. In this proceeding, petitioner claimed that the discontinuance of his food stamp authorization was violative of section 1983 of title 42 of the United States Code in that the manner in which he was purportedly notified of the discontinuance deprived him of due process of law (U.S. Const. 14th Amdt.) and, additionally, the accounting method employed by the agency to calculate his self-employment income for the purpose of periodically reviewing his eligibility to receive food stamps failed to comply with the applicable Federal and New York State regulations. Petitioner had computed his net self-employment income using the method prescribed by the Internal Revenue Service for calculating the profit or loss from a business or profession, which, unlike the method employed by the agency, took into account a decrease in inventory. According to petitioner's calculations, an application of the accounting method prescribed by the Internal Revenue Service would render petitioner eligible for food stamps. Special Term concluded that the agency erred in failing to employ the method prescribed by the Internal Revenue Service when calculating petitioner's net self-employment income, since both the Federal and New York State regulations with respect to determining an applicant's eligibility for food stamps make constant reference to the rules of the Internal Revenue Service. By judgment entered July 24, 1981, Special Term annulled respondents' determination to discontinue petitioner's food stamp authorization and remitted the matter to the agency to recompute the petitioner's net self-employment for the period in question by applying the method prescribed by the Internal Revenue Service. Special Term denied petitioner's request for attorney's fees on the authority of this court's determination in Matter of Brennin v. Kirby, 79 A.D.2d 396, 436 N.Y.S.2d 896, app.dsmd. 54 N.Y.2d 604, 443 N.Y.S.2d 1027, 427 N.E.2d 512 (1981) cert. denied 456 U.S. 908, 102 S.Ct. 1757, 72 L.Ed.2d 166 (1982), which upheld a denial of an award of counsel fees to a litigant who may well have prevailed on a claim for which an award of counsel fees is authorized by section 1988 of title 42 of the United States Code, solely on the ground that the litigant was represented on a nonfee basis by a legal services organization.
On appeal, petitioner contends that, as the prevailing party in a section 1983 action, he was eligible to receive a reasonable attorney's fee under the Civil Rights Attorney's Fees Awards Act of 1976 (U.S.Code, tit. 42, § 1988), and it was error to deny an award on the ground he was represented on a nonfee basis by a publicly funded legal services organization.
Section 1988 of title 42 of the United States Code provides in pertinent part:
"In any action or proceeding to enforce a provision of sections * * * 1983 * * * of this title, * * * 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" (emphasis supplied).
At the outset we note that attorney's fees may be recovered pursuant to the Civil Rights Attorney's Fees Awards Act as part of the costs of a proceeding instituted in a state court to enforce a provision of section 1983 (Maine v. Thiboutot, 448 U.S. 1, 11, 100 S.Ct. 2502, 2507, 65 L.Ed.2d 555; Matter of Johnson v. Blum, 58 N.Y.2d 454, 461 N.Y.S.2d 782, 448 N.E.2d 449; Matter of Ashley v. Curtis, 67 A.D.2d 828, 413 N.Y.S.2d 528; Matter of Bess v. Toia, 66 A.D.2d 844, 411 N.Y.S.2d 651; Young v. Toia, 66 A.D.2d 377, 413 N.Y.S.2d 530).
Although section 1988 of title 42 of the United States Code notes that the decision whether to grant an award of attorney's fees is a matter of judicial discretion, the area in which such discretion may properly be exercised has been circumscribed by the rule that, in an appropriate case, a prevailing party "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." (Newman v. Piggie Park Enterprises, 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263; Christiansburg Garment Co. v. Equal Employment Opportunity Comm., 434 U.S. 412, 416-417, 98 S.Ct. 694, 697-698, 54 L.Ed.2d 648; Northcross v. Board of Educ., 412 U.S. 427, 428, 93 S.Ct. 2201, 2202, 37 L.Ed.2d 48; Matter of Johnson v. Blum, supra, 58 N.Y.2d p. 458, 461 N.Y.S.2d 782, 448 N.E.2d 449; Matter of Ashley v. Curtis, supra; see, also, S.Rep. No. 94-1011, 94 Cong., 2d Sess., p. 4, U.S.Code Cong. & Admin.News 1976, vol. 5, pp. 5908, 5912; H.R.Rep. No. 94-1558, 94th Cong., 2d Sess., pp. 5, 8.)
Recently, the Court of Appeals in Matter of Johnson v. Blum (supra ) has held that section 1988 should be broadly construed to require that the burden of proof rests upon respondents to establish that special circumstances exist which militate against awarding a fee to a successful litigant (see, also, Mid Hudson Legal Services, Inc. v. G & U, Inc., 578 F.2d 34, 37-38 (2nd Cir.1978)) and that burden is not met solely by submitting evidence that petitioner's counsel is a publicly funded legal services organization (see Washington v. Seattle School Dist. No. 1, 458 U.S. 457, 102 S.Ct. 3187, 73 L.Ed.2d 896; New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 70-71, 100 S.Ct. 2024, 2034, 64 L.Ed.2d 723; Holley v. Lavine, 605 F.2d 638 (2nd Cir.1979), cert. den. sub nom. Blum v. Holley, 446 U.S. 913, 100 S.Ct. 1843, 64 L.Ed.2d 266; Rodriguez v. Taylor, 569 F.2d 1231, 1245 (3rd Cir.1977) cert. den. 436 U.S. 913, 98 S.Ct. 2254, 56 L.Ed.2d 414). Consequently, to the extent this court concluded in Matter of Brennin v. Kirby (supra ) and its progeny that representation on a nonfee basis by a publicly funded legal services organization qualified as a special circumstance, this holding has been impliedly overruled and the denial of an award solely on this ground constitutes an abuse of discretion.
Before attorney fees may be awarded under section 1988, there must be an affirmative finding as to whether the petitioner was a prevailing party in a proceeding embraced within section 1983 of title 42 of the United States Code.
Section 1983 provides:
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory * * * subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceedings for redress" (emphasis supplied).
Section 1983 has been broadly construed by the United States Supreme Court to encompass claims based solely on a violation by the State of a right created by a Federal statute, and is not limited to a Federal constitutional violation or a violation of a Federal statute providing for the protection of civil or equal rights (Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555). In Maine v. Thiboutot (supra ) the majority of the court further concluded that an award of attorney's fees pursuant to section 1988 was available in every type of section 1983 action, including actions predicated solely on Federal statutory violations (see, also, Maher v. Gagne, 448 U.S. 122, 100 S.Ct. 2570, 65 L.Ed.2d 653; Matter of Johnson v. Blum, supra, 58 N.Y.2d p. 458, n. 2, 461 N.Y.S.2d 782, 448 N.E.2d 449).
Consequently, in order to be eligible for an award of attorney's fees, petitioner at bar must have prevailed upon a bona fide claim that the agency's discontinuance of his food stamp authorization violated a right secured by the Food Stamp Act of 1964 or the Federal regulations 1 promulgated thereunder (see Matter of Holley v. Blum, 75 A.D.2d 998, 429 N.Y.S.2d 103).
Pursuant to section 2014 of title 7 of the United States Code (the Food Stamp Act of 1964), the Department of Agriculture was authorized to enact regulations which would establish uniform national standards of eligibility for participation by households in the food stamp program. Accordingly, the Department of Agriculture enacted regulations for determining an applicant's monthly income from self employment (see 7 CFR 273.11[a][1][2][4] ). The State Commissioner, who is authorized to implement the food stamp program and to calculate an individual household's eligibility, enacted identical regulations (see New York State Food Stamp Certification Manual, § X, e[3] ).
Special Term adopted petitioner's construction of the applicable Federal and State regulations...
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