United Handicapped Federation v. Andre, 4-75 Civ. 627.

Decision Date11 June 1980
Docket NumberNo. 4-75 Civ. 627.,4-75 Civ. 627.
PartiesUNITED HANDICAPPED FEDERATION, a Minnesota Non-Profit Corporation, National Paraplegia Foundation, North Country Chapter, a Minnesota Non-Profit Corporation, Michael J. Bjerkesett, Richard Van Wagner, Stephen Wrbanich, Claudia Fuglie, Carolyn Emerson, and Ronel Moore, Plaintiffs, v. Camille D. ANDRE, Individually and in his official capacity as Chief Administrator of Metropolitan Transit Commission, Douglas Kelm, Individually and in his official capacity as Commissioner of the Metropolitan Transit Commission, Leonard W. Levine, Individually and his official capacity as Commissioner of the Metropolitan Transit Commission, Bruce G. Nawrocki, Individually and in his official capacity as Commissioner of the Metropolitan Transit Commission, Karl Neid, Jr., Individually and in his official capacity as Commissioner of the Metropolitan Transit Commission, Alice W. Rainville, Individually and in her official capacity as Commissioner of the Metropolitan Transit Commission, Ruth E. Franklin, Individually and in her official capacity as Commissioner of the Metropolitan Transit Commission, Gayle M. Kincannon, Individually and in her official capacity as Commissioner of the Metropolitan Transit Commission, Frank W. Snowden, Individually and in his official capacity as Commissioner of the Metropolitan Transit Commission, William O. Cooley, Individually and in his official capacity as Commissioner of the Metropolitan Transit Commission, Edward Hjermstad, Individually, Walter Saxum, Individually, Loring M. Staples, Jr., Individually, Leonard Thiel, Individually, Richard S. Page, Individually and in his official capacity as the Administrator of the Urban Mass Transportation Administration, Robert E. Patricelli, Individually, Brock Adams, Individually and in his official capacity as the Secretary of the United States Department of Transportation, William Coleman, Jr., Individually, Joseph A. Califano, Individually and in his official capacity as the Secretary of the Department of Health, Education and Welfare, and AM General Corporation, Defendants.
CourtU.S. District Court — District of Minnesota

William H. Mahlum and Marilyn B. Knudsen, St. Paul, Minn., for plaintiffs.

Popham, Haik, Schnobrich, Kaufman & Doty, Ltd. by David S. Doty, and James B. Steilen, Minneapolis, Minn., for defendants Metropolitan Transit Commission members.

Andrew W. Danielson, U. S. Atty. by John M. Lee, Asst. U. S. Atty., Minneapolis, Minn., Robert W. Batchelder, Atty. Advisor, Urban Mass Transp. Administration, Washington, D. C., for defendants Brock Adams, Joseph A. Califano, and Richard S. Page.

MEMORANDUM ORDER

ALSOP, District Judge.

This matter comes before the court on the petition of the plaintiffs and the counter-petition of the state defendants for attorney's fees pursuant to 42 U.S.C. § 1988 and 29 U.S.C. § 794a(b). The federal defendants have moved for a final order of dismissal or summary judgment. The petitions and motions have been extensively briefed, and oral argument has been heard. The court additionally has reviewed the numerous affidavits and depositions which were submitted on this issue.

At the hearing on the motions, the court reserved ruling on the admissibility of defendants' Exhibits A and B. Plaintiffs objected to the admission of Exhibit A on the grounds that defendants did not provide it to the court prior to the hearing date. Plaintiffs candidly admit that they had received and reviewed the exhibit some considerable time prior to the hearing. Plaintiffs' objection to defendants' Exhibit A is overruled, and the exhibit is received.

Plaintiffs' objection to defendants' Exhibit B is essentially the same as the objection to Exhibit A, except plaintiffs claim not to have had an opportunity to inspect and review Exhibit B in its entirety prior to the hearing. Plaintiffs have subsequently been afforded this opportunity and have made their reactions to the exhibit known to the court. Plaintiffs' objection to defendants' Exhibit B is overruled, and the exhibit is received.

Although plaintiffs initially brought their petition for attorney's fees under 42 U.S.C. § 1988, they have subsequently asserted the same claim under 29 U.S.C. § 794a(b). Section 794a(b) was added to the Rehabilitation Act of 1973 on November 6, 1978. It provides:

In any action or proceeding to enforce or charge a violation of a provision of 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.

42 U.S.C. § 1988 provides in part:

In any action or proceeding to enforce a provision of sections . . . 1983, 1985 . . . 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.

The federal defendants have moved the court for a final dismissal order or for summary judgment. On August 31, 1978, pursuant to the stipulation of the plaintiffs and the federal defendants, this court entered an order dismissing the action in its entirety as against the federal defendants in their individual capacities and dismissing the action, except the issue of attorney's fees and costs, with respect to the federal defendants in their official capacities.

Plaintiffs' petition and memoranda make no reference to any claim against the federal defendants in their official capacities for attorney's fees and costs; however, at oral argument, plaintiffs' counsel asserted this claim on the grounds that this litigation, along with other suits across the country, was the impetus for the Transbus mandate of May 19, 1977 and was the true life-giver to Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794.

The federal defendants argue: (1) plaintiffs have not prevailed against the federal defendants on any aspect of their action; (2) section 1988 does not authorize an award of attorney's fees against the federal defendants in a suit brought under any of the statutes or constitutional provisions relied on by plaintiffs; (3) the amount claimed by plaintiffs is excessive; and (4) the sovereign immunity protection of the United States was not waived by 29 U.S.C. § 794a(b).

Under either 42 U.S.C. § 1988 or 29 U.S.C. § 794a(b), the plaintiffs must be the prevailing party to be entitled to an award of attorney's fees. Assuming arguendo that all the other potential impediments to the plaintiffs' recovery of attorney's fees from the federal defendants were eliminated, the court finds that on the basis of the record before it in this action the plaintiffs are not the prevailing party with respect to the federal defendants. There is no evidence in the record to support a finding that the instant lawsuit had any effect, direct or indirect, on the actions of the federal government with respect to transportation services for the handicapped. Nor does it appear that plaintiffs achieved in any fashion any of the relief they sought in this action as against the federal defendants.

On this basis alone, the court is compelled to deny plaintiffs' petition as against the federal defendants and to grant the motion of the federal defendants for summary judgment in their favor. The court reaches this conclusion without addressing the merits of any of the other issues raised with respect to the propriety of an award of attorney's fees as against these defendants.

The state defendants oppose plaintiffs' petition for attorney's fees on the grounds that: (1) plaintiffs are not a prevailing party within the meaning of § 1988 or § 794a(b); (2) Section 1988 does not apply because plaintiffs have not prevailed on any claim for which attorney's fees are authorized; (3) manifest injustice would result from any award of attorney's fees as against MTC commissioners who resigned prior to the settlement of this action; (4) Section 794a(b) is not applicable; (5) attorney's fees cannot be awarded against these defendants in their individual capacities; (6) attorney's fees cannot be recovered for non-legal or unnecessary services; and (7) plaintiffs cannot recover attorney's fees for legal services rendered in connection with issues on which they did not prevail. The state defendants additionally counter-petition the court to recover their own attorney's fees from the plaintiffs on the grounds that they are the prevailing party and that plaintiffs' action was legally frivolous.

As noted above, in order to recover attorney's fees under either § 1988 or § 794a(b), plaintiffs must be the prevailing party. Because of the tortuous legal and factual procedural history of this action, the court finds it necessary to review these proceedings in some detail.

The Urban Mass Transportation Act of 1964 contains § 16, 49 U.S.C. § 1612, which declares as a national policy that "special efforts shall be made in the planning and design of mass transportation facilities and services so that the availability to elderly and handicapped persons of mass transportation which they can effectively utilize will be assured."

In 1973, Congress enacted the Rehabilitation Act of 1973 which included § 504, 29 U.S.C. § 794, which provided that "No otherwise qualified handicapped individual in the United States, . . . shall, solely by reason of his handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."

In 1973, the Minnesota legislature first authorized funds for the Metropolitan Transit Commission (MTC) to study the implementation of transportation services for the handicapped. In that same year, the Metropolitan Transit Committee for the Disabled (MTCD) was organized to assist the MTC in the development of transportation services for the handicapped.

On June 5, 1974, the MTC approved a demand responsive demonstration project to provide transportation...

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    ...Cir. 1979); International Society for Krishna Consciousness, Inc. v. Anderson, 569 F.2d 1027 (8th Cir. 1978); United Handicapped Federation v. Andre, 489 F.Supp. 1040 (D.Minn.1980); Sharrock v. Harris, 489 F.Supp. 913 (S.D.N.Y.1980); Young v. Kenley, 465 F.Supp. 1260 (E.D.Va.1979)). Where a......

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