Thonen v. Jenkins

• Decision Date: 11 April 1974
• Docket Number: 737.,Civ. No. 733
• Citation: 374 F. Supp. 134
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Robert R. THONEN v. Leo W. JENKINS, President of East Carolina University, et al. William SCHELL, Jr. v. Leo W. JENKINS, Individually and as President of East Carolina University and his successors and Robert Morgan, Individually and as Chairman and representative of the Board of Trustees of East Carolina University.

374 F. Supp. 134

Robert R. THONEN v. Leo W. JENKINS, President of East Carolina University, et al.

William SCHELL, Jr. v. Leo W. JENKINS, Individually and as President of East Carolina University and his successors and Robert Morgan, Individually and as Chairman and representative of the Board of Trustees of East Carolina University.

Civ. No. 733, 737.

United States District Court, E. D. North Carolina, Washington Division.

April 11, 1974.

James E. Keenan of Paul, Keenan & Rowan, Durham, N. C., for plaintiffs.

Robert Morgan, Atty. Gen. of N. C. by Andrew A. Vanore, Jr., Asst. Atty. Gen., Raleigh, N. C., for defendants.

MEMORANDUM OPINION and ORDER

LARKINS, District Judge:

This cause is before this Court on plaintiffs' motion for damages and counsel fees. While students at East Carolina University, Schell wrote a letter that was published in the school newspaper, The Fountainhead, of which Thonen was editor-in-chief. The letter was critical of parietal regulations and closed with a vulgarity referring to the President of the University. Disciplinary action was commenced against plaintiffs by University officials, resulting in this suit in which the plaintiffs sought readmission and other appropriate relief.

BACKGROUND PROCEDURES

The April 1, 1971 issue of The Fountainhead carried the vulgarity referred to above. Charges were brought against plaintiffs by school officials and the instant complaint was filed April 23, 1971. On May 21, 1971 a hearing was held on plaintiffs' motion for a temporary restraining order and reinstatement and defendants' motion to dismiss. Defendants, through counsel, requested this Court to abstain from any further action until plaintiffs had exhausted their administrative remedies at East Carolina. In compliance with such request, this Court ordered that the East Carolina Review Board convene and consider plaintiffs' case prior to May 24, 1971. On May 22 defendants informed plaintiffs' counsel, Mr. Jerry Paul, that they were appealing the order and would seek a stay pending appeal from the Honorable Clement Haynsworth in Greenville, S.C. on May 24. Paul stated he probably would not go to Greenville, but changed his mind and drove down. On May 24, defendants appealed, stating that plaintiffs had waived any right to an administrative appeal by failing to give notice of appeal with the Review Board. They did not go to Greenville, S.C.

On May 24 this Court allowed the defendants' stay order, and, because of impending exams, allowed plaintiff Thonen's temporary restraining order for readmittance pending the outcome of the case. This order was dismissed on October 29, 1971 when Thonen was declared academically ineligible to return to East Carolina. On June 14, 1971 the readmission of Schell was ordered pending the outcome of the litigation.

On February 16, 1972, 455 F.2d 977, the Fourth Circuit affirmed the May 21, 1971 order and found:

"Our examination of the record discloses that in an opinion filed in subsequent proceedings in this case, the district judge stated that the order appealed from was entered with the agreement of all counsel of record, including counsel for defendants. The accuracy of this statement is not challenged in the brief filed on behalf of defendants in this court. Indeed, the district judge's statement is neither mentioned nor is his opinion included in the appendix which defendants filed. We accept the district judge's statement as complete and accurate.

The district court had jurisdiction of the case. Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946). It is, therefore, axiomatic that defendants cannot appeal from an order entered with their consent unless they establish facts to nullify their consent."

On March 28, 1972 this Court entered an order allowing Schell's motion for a preliminary injunction and reinstatement. Thonen's motion was denied due to his academic ineligibility. This Court reasoned that the sanction imposed on the students was in violation of their First Amendment rights. A trial date was set to determine damages, but defendants again appealed. In a decision dated August 2, 1972, the Fourth Circuit affirmed 491 F.2d 722.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. Counsel Fees

The primary area of concern appears to be that of counsel fees. Plaintiffs argue that counsel fees are within the discretionary function of the Court under § 1983 actions in order to encourage individuals denied their constitutional rights to seek judicial relief. They feel that the spirit of Newman v. Piggie Park Enterprises, 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968), justifies applying its standards to § 1983 cases. Plaintiffs also claim that even if a "good faith" standard is used, defendants are still liable because their actions were not taken in good faith. At the rate of $40. per hour plaintiffs claim $6,267.20 plus $647.60 for the unnecessary trip to Greenville, S. C.

Defendants contend that counsel fees should only be awarded where their defense was maintained in bad faith, vexatiously, wantonly, or for oppressive reasons. 6 Moore's Federal Practice 1352 (1966 Ed.). They allege there is no evidence of their bad faith or malice at any time during the pendency of this action.

The leading recent civil rights case on counsel fees is Newman v. Piggie Park, a suit to enjoin racial discrimination at eating establishments. The Supreme Court found:

"If successful plaintiffs were routinely forced to bear their own attorneys' fees, few aggrieved parties would be in a position to advance the public interest by invoking the injunctive powers of the federal courts. Congress therefore enacted the provision for counsel fees—not simply to penalize litigants who deliberately advance arguments they know to be untenable but, more broadly, to encourage individuals injured by racial discrimination to seek judicial relief under Title II.

It follows that one who succeeds in obtaining an injunction under that Title should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust."

This rationale was followed by the Fourth Circuit when it allowed counsel fees in two equal employment cases. See Lea v. Cone Mills Corporation, 438 F.2d 86 (1971) and 467 F.2d 277 (1972) ($10,000.00 not so unreasonably low); Robinson v. Lorillard Corporation, 444 F.2d 791 (1971). Of course the Supreme Court and the Circuit Court based their decisions partly on the fact that the plaintiffs were entitled to injunctive relief and not damages.

This Court has recently allowed reasonable attorneys' fees in a housing discrimination case under 42 U.S.C. § 3612(c). See Stevens v. Dobbs, 373 F. Supp. 618 (1974). It was found that counsel fees in housing cases have been allowed to remove the burden from the plaintiffs' shoulders in seeking to vindicate a public right. See Steele v. Title Realty Company, 478 F.2d 380 (10th Cir. 1973); Knight v. Auciello, 453 F.2d 852 (1st Cir. 1972); Sanborn v. Wagner, 354 F.Supp. 291 (D.Md.1973); Williamson v. Hampton Management Company, 339 F.Supp. 1146 (N.D.Ill.1972). In Dobbs, this Court concluded:

"This Court is of the opinion that public policy demands that counsel fees be awarded in housing discrimination cases so that prejudiced individuals will not be hesitant in enforcing their rights. However under § 3612(c) the award must be limited to that amount plaintiff is not financially able to assume."

Defendants state that in this Circuit an award of counsel fees should be restricted to an exceptional case like Bell v. School Board of Powhatan County, Virginia, 321 F.2d 494 (1963), and that the standard should be whether bringing the action should have been unnecessary and was compelled by the defendants' unreasonable, obdurate obstinacy. Bradley v. School Board of the City of Richmond, 345 F.2d 310 (1965). They neglect however to state the pertinent language of Bell which is:

"The general rule is that the award of counsel fees lies within the sound discretion of the trial court but, like other exercises of judicial discretion, it is subject to review. The matter must be judged in the perspective of all the surrounding circumstances. . . . The equitable remedy would be far from complete, and justice would not be attained, if reasonable counsel fees were not awarded in a case so extreme."

They also fail to mention that the District Court in Bradley found that § 1983 and the general equitable power to protect constitutional rights are not restricted by any Congressional language indicating an intention to preclude an award for fees. The Court awarded $56,419.65 in counsel fees and expenses concluding:

"Under the Civil Rights Act courts are required fully to remedy an established wrong, Griffin v. County School Board of Prince Edward County, 377 U.S. 218, . . . and the payment of fees and expenses in class actions like this one is a necessary ingredient of such a remedy." Bradley, 53 F.R. D. 28 at 42 (E.D.Va.1971).

This Court is of the opinion that the "unreasonable obdurate obstinacy" standard is no longer applicable to a § 1983 action. The movement has been toward the public policy expressed in Newman v. Piggie Park, and the allowance of attorney's fees "unless special circumstances would render such an award unjust." Newman v. Piggie Park, 390 U.S. at 402, 88 S.Ct. at 966, 19 L.Ed.2d at 1266. In fact, the earlier cases of Bell and Bradley could be read in this context. The Fifth Circuit has clearly followed this route in § 1982 cases. See Lee v. Southern Home Sites Corporation, 429 F.2d 290, which held:

"In the area of civil rights, many cases have either allowed or implicitly recognized the discretionary power of a district judge to award attorneys' fees in a proper case in the absence of express statutory provision."

On remand in Lee, fees were denied and plaintiffs appealed. 444 F.2d 143. In reversing, the Circuit Court found that the factors relied on in Piggie Park in interpreting the provision...