Southeast Legal Defense Group v. Adams

• Decision Date: 01 October 1981
• Docket Number: Nos. 78-2442,78-2450 and 78-2516,s. 78-2442
• Citation: 657 F.2d 1118
• Parties: The SOUTHEAST LEGAL DEFENSE GROUP, an unincorporated association; et al., and Vera L. Creekpaul and Edith Anderson, Plaintiffs-Appellees/Cross-Appellants, v. Brock ADAMS, et al., Defendants, and The State of Oregon, etc., et al., Defendants-Appellants/Cross-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1118

657 F.2d 1118

The SOUTHEAST LEGAL DEFENSE GROUP, an unincorporated

association; et al., and Vera L. Creekpaul and Edith Anderson, Plaintiffs-Appellees/Cross-Appellants, v. Brock ADAMS, et al., Defendants, and The State of Oregon, etc., et al.,

Defendants-Appellants/Cross-Appellees.

Nos. 78-2442, 78-2450 and 78-2516.

United States Court of Appeals, Ninth Circuit.

Argued May 8, 1980.

Submitted June 9, 1980.

Decided Oct. 1, 1981.

Charles J. Merten, Portland, Or., for Southeast Legal Defense Group.

Walter L. Barrie, Asst. Atty. Gen., Salem, Or., argued for the State of Or. et al.; William F. Nessly, Asst. Atty. Gen., Salem, Or., Jennings Bryan Miller, Baton Rouge, La., Gary Roberts and J. Richard Forester, Portland, Or., on brief.

Appeal from the United States District Court for the District of Oregon.

Before BROWNING and KILKENNY, Circuit Judges, and TAKASUGI ^*, District Judge.

TAKASUGI, District Judge:

BACKGROUND

Plaintiffs, consisting of nineteen (19) individuals and one association, initiated suit in the District Court of Oregon seeking injunctive and declaratory relief against federal ("federal defendants") and state highway officials, the State of Oregon through the State Highway Commission and members thereof ("state defendants") in their individual and official capacities, to enjoin the construction of the Mount Hood Freeway. Plaintiffs contend that the freeway, if constructed, would have either displaced plaintiffs or irreparably damaged their neighborhood.

The freeway was to be constructed pursuant to the Federal-Aid Highway Act, 23 U.S.C. §§ 101 et seq. Under said Act, the State is primarily responsible for the planning and construction of the freeway. The federal government then reimburses the state for a substantial portion of the costs of construction approved by the Federal Highway Administration ("FHWA"), the administrative body responsible for the Federal-Aid Highway Program. Such approval is granted in stages and is dependent upon the state's compliance with the Federal-Aid Highway Act and its implementing regulations and directives, including the Policy and Procedure Memoranda ("PPM"). See generally, Lathan v. Brinegar, 506 F.2d 677 (9th Cir. 1974) (en banc).

In this action plaintiffs alleged twelve (12) causes of action. In the trial court, plaintiffs prevailed on their eighth claim, which challenged the FHWA approval of the state's selection of a particular corridor for the proposed highway as being violative of 23 U.S.C. § 128(a) and PPM 20-8.

Essentially, 23 U.S.C. § 128(a) ¹ together with PPM 20-8 (1969) ² require the holding of corridor public hearings before the state The district court, 436 F.Supp. 891, held that a May 1969 corridor public hearing failed to comply with 23 U.S.C. § 128(a) and PPM 20-8 (1969) because the state defendants were already committed to a specific location for the freeway prior to 1969.

highway department is committed to a specific proposal and as a prerequisite to location approval.

Defendants assert that earlier editions of PPM 20-8 should govern their corridor selection. The trial court, however, applied PPM 20-8 (1969), which was effective January 14, 1969, and set aside the federal approval of the corridor route. The district court thereby granted plaintiffs complete relief under their eighth claim.

In keeping with the judicial policy against unnecessarily deciding constitutional claims, the court dismissed as moot plaintiffs' tenth and eleventh claims which sought relief for constitutional infringements of plaintiffs' rights to due process and the equal protection of the law. ³

Although the decision was predicated upon the Federal-Aid Highway Act and not upon a civil rights and/or constitutional claim, the district court did determine that the provisions of 42 U.S.C. § 1983 ⁴ which relate to "laws of the United States" encompassed violations of any federal law. Accordingly, the trial court, while declining to base its award of attorneys fees under the common fund/common benefit doctrine, awarded such fees pursuant to the Civil Rights Attorneys Fees Act of 1976, 42 U.S.C. §§ 1988. ⁵ The court awarded fees of $300,000 to private counsel and $60,000 to the Legal Aid Service. Recognizing the immunity from liability of the federal defendants under 28 U.S.C. § 2412, ⁶ the court reduced the fees to $240,000 for plaintiff's The parties appeal and cross-appeal the judgment of the district court, raising the following issues:

private counsel and $40,000 for Legal Aid Service.

1. Whether the trial court erred in applying the 1969 edition of the FHWA Policy and Procedure Memorandum to the planning activities conducted by the state defendants, thereby rejecting the applicability of the earlier editions of PPM 20-8.

2. Whether the trial court erred in refusing to award attorney fees under the common fund/common benefit theory.

3. Whether the district court erred in awarding attorney fees pursuant to the Civil Rights Attorneys Fee Act of 1976, 42 U.S.C. § 1988, where the plaintiff prevailed on a noncivil rights claim or one not involving a constitutional cause of action.

4. Whether the district court erred in calculation of attorneys fees in accounting for the federal defendants' immunity from liability for fees under the provisions of 28 U.S.C. § 2412.

5. Whether the district court may/should adjust the fee award to account for inflationary factors.

6. Whether costs, including attorneys fees, should be awarded for a successful appeal under the Civil Rights Attorneys Fee Act of 1976, 42 U.S.C. § 1988.

DISCUSSION

I. APPLICATION OF PPM 20-8 (1969) ⁷

Defendants contend that the district court improperly applied the 1969 edition of PPM 20-8, since the state's selection of a freeway corridor, which apparently occurred in August 1965 was before the effective date of PPM 20-8 (1969). They further claim that their actions need only comport with the 1959 edition of PPM 20-8, which was in effect at the time of the state's corridor selection. We do not agree.

Preliminarily, it should be noted that the state had not obtained, nor apparently even requested, location approval until after the May 1969 corridor hearing. PPM 20-8 (1969) went into effect on January 14, 1969. At the time of the state defendants' request for location approval and at the time of the federal defendants' granting thereof, PPM 20-8 (1969) was in effect and therefore provided the applicable prerequisites for location approval. Lathan v. Brinegar, 506 F.2d 677 (9th Cir. 1974).

As such, the district court correctly applied PPM 20-8 (1969), which is "intended to afford full opportunity for effective public participation in the consideration of highway location and design proposals by highway departments before submission to the Federal Highway Administration for approval." PPM 20-8 (1969).

II. THE COMMON FUND/COMMON BENEFIT DOCTRINE

The district court denied attorneys fees under the equitable common fund or common benefit doctrine, ruling the doctrine inapplicable to this case. Plaintiffs have cross-appealed this decision. We affirm the district court ruling.

To qualify for an award under the equitable common fund or common benefit doctrine, the successful litigant must either impart a substantial nonmonetary benefit or create or preserve a common fund for an identifiable class of beneficiaries. Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970); Hall v. Cole, 412 U.S. 1, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973). The litigant is then entitled to recover attorneys fees from the benefitted class. Without such benefit accruing to or being preserved for an identifiable class, the litigant alone must bear the cost for the enrichment which may flow to others. In Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), the Supreme Court acknowledged the viability of this doctrine, but limited its application to only where the class of beneficiaries is sufficiently identifiable, the benefits can be accurately traced, and the fee can be "shifted with some exactitude to those benefitting." Id. at 265 n.39, 95 S.Ct. at 1625 n.39. See also, Stevens v. Municipal Court, 603 F.2d 111 (9th Cir. 1979).

Plaintiffs argue that the successful litigation of this case has preserved a common fund, namely the Oregon State Highway Fund ("Fund"). The Fund, supported by state income and gasoline taxes and licensing fees, would have financed the construction of the highway. Absent the favorable ruling by the district court, plaintiffs contend, the Fund would have been depleted for an unlawful use. Instead, the Fund was preserved for lawful uses for an identifiable class of beneficiaries, to wit: the Oregon Transportation Commission, the State of Oregon, and the residents of Oregon. The taxpayers of Oregon will also benefit since every taxpayer has an interest in insuring the lawful expenditure of public funds.

Assuming, without deciding, that plaintiffs have sufficiently identified the class of beneficiaries and accurately traced the benefits, they must further demonstrate that the cost can be shifted proportionately and accurately to those who have benefitted.

As recognized by the Court in Alyeska, supra, 421 U.S. at 265, n.39, 95 S.Ct. at 1625, n.39, "sophisticated economic analysis would be required to gauge the extent to which the general public, the supposed beneficiary, as distinguished from selected elements of it, would bear the costs." In this case, it would be impossible to determine which beneficiary bears what costs, since residents and taxpayers pay varying amounts into the Fund.

Even if this court could somehow determine who would bear the cost, it is inconceivable that the cost could be distributed in proportion to the benefits received. Furthermore, the common fund/common benefit doctrine does not apply when, as here, the class of beneficiaries includes all the citizenry and all the taxpayers of a state....