Zarcone v. Perry

• Citation: 581 F.2d 1039
• Decision Date: 28 July 1978
• Docket Number: D,No. 679,679
• Parties: Thomas ZARCONE, Plaintiff-Appellant, v. William M. PERRY and James Windsor, Defendants-Appellees, Robert J. Anderson and Patrick Giambalvo, Defendants. ocket 77-7509.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 1039

581 F.2d 1039

Thomas ZARCONE, Plaintiff-Appellant, v. William M. PERRY and James Windsor, Defendants-Appellees Robert J. Anderson and Patrick Giambalvo, Defendants.

No. 679, Docket 77-7509.

United States Court of Appeals Second Circuit.

Argued March 27, 1978.

Decided July 28, 1978.

Arnold B. Firestone, Hauppague (Firestone & Chekenian, Hauppague, N. Y.), for plaintiff-appellant.

Stephen P. Burke, Mineola, N. Y. (O'Brien, Kelly & Rode, Mineola, N. Y.), for defendant-appellant Windsor.

William J. Fullam, Merrick, N. Y. (Curtis, Hart & Zaklukiewicz, Merrick, N. Y.), for defendant-appellee Perry.

Before FEINBERG, MANSFIELD and OAKES, Circuit Judges.

MANSFIELD, Circuit Judge:

The issue upon this appeal is whether appellant, who successfully recovered compensatory and punitive damages in a civil rights action on his own behalf in the Eastern District of New York, is also entitled to an award of attorney's fees under the Civil Rights Attorney's Fee Awards Act of 1976, 42 U.S.C. § 1988. ¹ Chief Judge Mishler denied an award of attorney's fees in the absence of a showing that the suit had advanced the interests of the public or of an identifiable group. Although we do not subscribe to his reasoning, we affirm on other grounds.

Since the background facts are fully set forth in our prior decision in the case, 572 F.2d 52 (2d Cir. 1978), we need only summarize them briefly here. On April 30, 1975, appellee Perry, then a judge of the District Court of Suffolk County, was presiding over an evening session of traffic court. During a break, he dispatched appellee Windsor, a deputy sheriff, to purchase coffee from appellant Zarcone, whose mobile food vending truck had made a stop in front of the courthouse. Dissatisfied with the coffee, which he described as "putrid," Perry ordered Windsor and two others to bring appellant back to his chambers through the crowded courthouse in handcuffs, and then tongue-lashed the vendor, threatening him with legal action and the loss of his livelihood. About an hour later, Judge Perry again summoned appellant before him and sought an admission that something had been wrong with the coffee. However, appellant consistently refused to admit that anything had been amiss. As a result of this incident, appellant alleged that he suffered from anxiety, persistent headaches and stuttering, required treatment in a hospital, experienced marital difficulties, and was unable to work.

Eventually appellant retained counsel under a contingent fee arrangement whereby one-third of any recovery after disbursements would be paid to his attorney, and filed this action. Not surprisingly, he persuaded a jury that the conduct of Judge Perry and Deputy Sheriff Windsor had been without any colorable legal basis and constituted a denial of his right to due process. He was awarded $80,000 in compensatory damages, $60,000 in punitive damages against Perry, and $1,000 in punitive damages against Windsor. Upon an appeal only of the punitive damages award, we affirmed. Under the contingent fee agreement, appellant's counsel became entitled to $46,496.63 out of the recovery.

In the meantime, however, appellant had moved to amend the Bill of Costs to add counsel fees of $53,917.50. On Sept. 30, 1977, Judge Mishler filed his decision denying this motion. After reviewing the origins of the Civil Rights Attorney's Fees Awards Act of 1976, the lower court characterized appellant's action as "basically a tort action for false arrest and imprisonment couched in the language of the constitutional right to due process." He noted that appellant had sought only damages as opposed to equitable relief the benefits of which might be shared by others and stated that appellant's action had vindicated the rights of the public generally "(o) nly in a general, indirect sense." Accordingly, he denied appellant's request for counsel fees, concluding, "(I)t is only when plaintiffs advance the public interests by bringing the action that an award of attorney's fees is proper." On appeal, appellant contends that his request for fees was improperly rejected because of the district judge's use of the wrong standard, and that application of the proper standard entitles him to an award of counsel fees as a matter of law.

DISCUSSION

The Civil Rights Attorney's Fees Awards Act of 1976 (the "Act") amended 42 U.S.C. § 1988 to provide that in any action to enforce 42 U.S.C. § 1983 (the Civil Rights Act of 1866), "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." This provision was passed in response to the Supreme Court's decision in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), which held that federal courts may not award counsel fees to successful litigants in the absence either of express statutory authority or the presence of circumstances permitting application of certain very limited exceptions to the "American Rule" against fee-shifting. S.Rep.No.94-1011, 94th Cong., 2d Sess. 1 (1976) (hereinafter Senate Report ); H.R.Rep.No.94-1558, 94th Cong., 2d Sess. 2 (1976) (hereinafter House Report ), U.S.Code Cong. & Admin.News 1976, p. 5908; 122 Cong.Rec. S16, 251-52 (daily ed. Sept. 21, 1976) (remarks of Senator Kennedy). Although Alyeska itself involved environmental law, the Court's reasoning also disapproved the practice of awarding fees to civil rights plaintiffs on the so-called "private attorney general" theory. See also Runyon v. McCrary, 427 U.S. 160, 182-86, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976).

Almost immediately members of Congress recognized that Alyeska would produce anomalous gaps and inconsistencies in private enforcement of federal statutes protecting civil rights, since some, but not all, of these provisions explicitly authorized fee-shifting. Bills were introduced in both Houses to remedy the omission, which led ultimately to passage of the Act.

The impetus for attorneys' fees legislation was Congress' concern, substantiated by the testimony of numerous members of the legal community in Senate and House hearings, that private parties would be deterred from enforcement of the civil rights laws unless they could anticipate that success would result in a recovery sufficient to cover their costs, including reasonable attorneys' fees. See Senate Report at 2-5; House Report at 2-5. Alyeska was seen as a significant threat to Congress' heavy reliance on private enforcement as a means of implementing its civil rights legislation. ²

The Senate Report stated:

All of these civil rights laws depend heavily upon private enforcement, and fee awards have proved an essential remedy if private citizens are to have a meaningful opportunity to vindicate the important Congressional policies which these laws contain.

In many cases arising under our civil rights laws, the citizen who must sue to enforce the law has little or no money with which to hire a lawyer. If private citizens are to be able to assert their civil rights, and if those who violate the Nation's fundamental laws are not to proceed with impunity, then citizens must have the opportunity to recover what it costs them to vindicate these rights in court. Id. at 2 U.S.Code Cong. & Admin.News 1976, p. 5910.

In expressly authorizing awards of attorneys' fees in actions to enforce federal civil rights laws that made no express provision for fee-shifting, Congress did not undertake to specify detailed standards governing the propriety or amount of such awards. Rather, as the language of the Act makes clear, this was left to the direction of the district courts in the first instance. The House Report stated:

The second key feature of the bill is its mandate that fees are only to be allowed in the discretion of the court. Congress has passed many statutes Requiring that fees be awarded to a prevailing party. Again the Committee adopted a more moderate approach here by leaving the matter to the discretion of the judge, guided of course by the case law interpreting similar attorney's fee provisions. . . . The Committee intends that, at a minimum, existing judicial standards, to which ample reference is made in this report, should guide the courts in construing (the Act). Id. at 8 (footnote omitted).

Thus Congress anticipated that courts would exercise their discretion under the Act in a manner consistent with case law that had developed concerning the fee-shifting provisions of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-3(b), 2000e-5(k) and other comparable statutes. This expectation was consistent with the legislation's character as an incremental measure designed to plug gaps in existing statutory authority. For instance, the Senate Report approved the Supreme Court's holding in Newman v. Piggie Park Enterprises, 390 U.S. 400, 402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968) (per curiam), to the effect that successful plaintiffs in suits for injunctive relief brought under Title II of the Civil Rights Act of 1964 "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." ³

The Act's legislative history is clear that in authorizing awards of attorneys' fees to plaintiffs in civil rights actions Congress was concerned with enforcement not only of the civil rights of the public at large and of identifiable groups but also with the rights of individual plaintiffs. Its goal was to remove financial impediments that might preclude or hinder "private citizens," collectively or individually, from being "able to assert their civil rights," Senate Report at p. 2, U.S.Code Cong. & Admin.News 1976, p. 5910. Indeed, we recently remarked in Davis v. Village Park II Realty Co., 578 F.2d 461 (2d Cir. 1978), at 464, that attorneys' fees might be shifted in an individual action for damages under circumstances where it was quite possible that the plaintiff would recover only nominal...