La Raza Unida of Southern Alameda County v. Volpe

• Decision Date: 29 September 1977
• Docket Number: No. C-71-1166 RFP.,C-71-1166 RFP.
• Citation: 440 F. Supp. 904
• Parties: LA RAZA UNIDA OF SOUTHERN ALAMEDA COUNTY et al., Plaintiffs, v. John A. VOLPE, etc., et al., Defendants.
• Court: U.S. District Court — Northern District of California

440 F. Supp. 904

LA RAZA UNIDA OF SOUTHERN ALAMEDA COUNTY et al., Plaintiffs, v. John A. VOLPE, etc., et al., Defendants.

No. C-71-1166 RFP.

United States District Court, N. D. California.

September 29, 1977.

B. E. Bergesen, III, Armando M. Menocal, III, Public Advocates, Inc., San Francisco, Cal., Stephen E. Ronfeldt, Clifford Sweet, Legal Aid Society of Alameda, Oakland, Cal., for plaintiffs La Raza Unida, et al.

John P. Horgan, Norval C. Fairman, Robert R. Buell, San Francisco, Cal., for Volpe, etc., et al.

MEMORANDUM AND ORDER

PECKHAM, Chief Judge.

Plaintiffs bring this motion pursuant to the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C.A. § 1988 (West Supp. 1977) (hereinafter "Attorney's Fee Act"), to recover attorney's fees incurred in obtaining a preliminary injunction against further implementation of California Highway Project 238. La Raza Unida v. Volpe, 337 F.Supp. 221 (N.D.Cal.1971), aff'd 488 F.2d 559 (9th Cir. 1973), cert. denied, 417 U.S. 968, 94 S.Ct. 3171, 41 L.Ed.2d 1138 (1974).

A brief history of this litigation will help place the issues raised by the instant motion into context.

Plaintiffs initiated this action on June 16, 1971, seeking to halt land acquisition and other preparations for California Highway Project 238, a proposed highway of 14 miles planned to pass through Hayward, Union City and Fremont, California. The complaint alleged that defendants had failed to adhere to certain federally imposed requirements regarding the construction of "federal-aid" highways, including the provisions of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, sections 205 and 210, 42 U.S.C. §§ 4625, 4630 (1970) (hereinafter Relocation Assistance Act), section 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. § 1653(f) (1970) and the Federal Aid Highway Act of 1968, section 24, 23 U.S.C. § 128 (1970). In addition, plaintiffs alleged that defendants' conduct had deprived them of due process and equal protection guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution.¹

Concluding that Project 238 was a federal-aid highway within the meaning of applicable federal statutes, this court held that the state defendant had failed to implement a relocation assistance program complying with sections 205 and 210 of the Relocation Assistance Act.² Accordingly, the court issued a preliminary injunction restraining further implementation of Project 238 until the mandate of federal law had been observed. Since affirmance of that injunction by the Court of Appeals for the Ninth Circuit, plans for the construction of the project appear to have laid largely dormant.

Subsequent to issuing its injunction, this court awarded attorney's and expert witness fees to plaintiffs on the ground that they had acted as "private attorneys general" to effectuate strong congressional policies that benefitted a large class of persons. La Raza Unida v. Volpe, 57 F.R.D. 94 (N.D. Cal.1972). Defendant's³ appeal from the fee award was eventually dismissed as taken from a nonappealable order. This court subsequently vacated the award, however, on the authority of Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), which rejected, in the absence of congressional authorization, the private attorney general fee award theory. The court's order vacating its previous fee award was entered, "without prejudice to plaintiffs' right to move the Court for such an award of fees upon such grounds and under such circumstances as may be appropriate." Order of March 19, 1976. Plaintiffs now bring this renewed motion for attorney's fees on the authority of the Civil Rights Attorney's Fee Awards Act of 1976.

At the onset, we address one threshold issue advanced halfheartedly by defendant:⁴ whether the instant action is still "pending" for the purposes of awarding attorney's fees. The Attorney's Fee Act applied to "all cases pending on the date of enactment as well as all future cases." H.R.Rep. No. 94-1558, 94th Cong., 2d Sess. 4, n. 6 (1976). See Stanford Daily v. Zurcher, 550 F.2d 464 (9th Cir. 1977). The issue is raised because this court's order issuing a preliminary injunction essentially resolved several of the primary legal issues raised by the parties and, since affirmance of the injunction on appeal, defendants have largely acquiesced to it as an authoritative ruling.

There can be little doubt but that the instant action remains "pending" for present purposes. First, no final judgment or order of dismissal has been entered. The case is thus formally within the jurisdiction of this court for purposes of awarding further relief, reconsideration of issues preliminarily decided, as well as the application of any changes in statutes governing the matters in controversy.

Second, the preliminary injunction issued by this court did not resolve all issues disputed by the parties. We need cite just one example: the parties remain in disagreement as to whether, even assuming that the state complies with federal relocation assistance and environmental requirements, construction of Project 238 may proceed in the absence of another "corridor public hearing," as may be required by 23 U.S.C. § 128 and its implementing regulations. Since there is no basis upon which to conclude that the state has irrevocably abandoned any plan to implement the disputed project, we conclude that the presence of a live controversy remains.

Finally, the imposition of attorney's fees at this time in no way prejudices the defendant. Attorney's fees were originally imposed in this case, in accordance with then prevailing standards, shortly after issuance of the preliminary injunction. Defendant was not relieved of that liability until the Supreme Court's 1975 ruling in Alyeska. Inasmuch as the Attorney's Fee Act was intended, inter alia, "to remedy anomalous gaps in our civil rights laws created by the United States Supreme Court's recent decision in Alyeska," S.Rep. No. 94-1011, 94th Cong., 2d Sess. 1, reprinted in 1976 U.S.Code Cong. & Admin.News, pp. 5908, 5910, we find no injustice in the possibility of reimposing fee liability at this time. Moreover, the court's March 19, 1976, order withdrawing its previous fee award explicitly preserved plaintiffs' right to renew their motion for attorney's fees.

The Attorney's Fee Act provides in relevant part as follows:

In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 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.

42 U.S.C.A. § 1988 (West Supp.1977). As enacted, this provision is not entirely coextensive with the attorney's fee doctrine prevailing prior to Alyeska. By tying the availability of fees to success on specific statutory provisions, the Act is in some respects both more inclusive and less inclusive than the preexisting "private attorney general" approach. Our task, therefore, is to determine whether plaintiffs prevailed in an action to enforce an enumerated statute.

Plaintiffs premise their entitlement to attorney's fees on the basis of Revised Statute 1979, 42 U.S.C. § 1983 (1970), which provides that,

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 persons 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 any action at law, suit in equity, or other proper proceeding for redress.

Plaintiffs contend that the court, in issuing its preliminary injunction on the basis of a violation of the Relocation Assistance Act, found in substance that the state defendant had deprived them of rights, privileges or immunities secured by the federal "laws," and thus that plaintiffs are entitled to fees based upon a violation of section 1983 implicit in the court's previous findings. Alternatively, plaintiffs argue that they are entitled to fees premised upon meritorious constitutional claims previously asserted by them, but not reached by the court.

The availability of section 1983 to redress the deprivations, under color of state law, of rights, privileges, or immunities guaranteed by federal statutes has provoked substantial comment by courts⁵ and commentators.⁶ The derivation of section 1983 has been reviewed in detail by these and other sources,⁷ and need not be exhaustively recounted here. Suffice it to say that, "despite this seemingly unambiguous language of section 1983 authorizing both statutorily-based and constitutionally-based actions," Blue v. Craig, 505 F.2d at 834, uncertainty has arisen from two primary sources: first, from the unexplained addition of the words "and laws" following the words "the Constitution" in the 1875 recodification of this section as part of the revised statutes,⁸ and second, the presence of qualifying language in 28 U.S.C. § 1343(3) (1970), traditionally viewed as the "jurisdictional counterpart" to section 1983, that grants jurisdiction only to actions based on Acts of Congress "providing for equal rights."⁹ Although there have been several lower court decisions, and substantial dicta from Supreme Court opinions, suggesting the applicability of section 1983 to statutorily based actions,¹⁰ the issue has yet to be definitively resolved.¹¹

We find the rationales advanced to narrow the scope of section 1983 from that clearly suggested by the statutory language to be unpersuasive. The first such rationale, suggested by the court in Wynn v. Indiana State Dept. of Pub. Welfare, 316 F.Supp. at 328-31, is that "the words `and laws' were not in the original Civil Rights statute as adopted by Congress in 1871 but represented a gratuitous...