AT&T Wireless PCS Inc. v. City of Atlanta

CARNES, Circuit Judge, concurring specially:

I concur in Judge Wilson’s opinion for the Court, because he has laid out the controlling law and applied it to this case in the way required by precedent. I write separately only to note in passing how far we have come from the original purposes of the attorney fee shifting provision that is 42 U.S.C. § 1988 . In discussing the policy considerations underlying that provision, we have observed that its “primary function is to shift the costs of civil rights litigation from civil rights victims to civil rights violators.” Jonas v. Stack, 758 F.2d 567, 569 (11th Cir.1985). We have explained that the legislative history behind § 1988 shows two justifications for it: “First, the mechanism affords civil rights victims effective access to the courts by making it financially feasible for them to challenge civil rights violations. Second, it provides an incentive for both citizens and members of the bar to act as ‘private attorneys general’ to ensure effective enforcement of the civil rights law.” Id. (citations omitted).

AT&T Wireless is no civil rights victim, at least not in the traditional sense of that term. Nor do corporations like AT&T Wireless need reimbursement of attorney fees to make it financially feasible for them to challenge in court regulatory denials that cost them money. Their financial self-interest and the vast sums at stake make them more than happy to serve as “private attorneys general” to enforce the legislative measures that they have lobbied through Congress, without the need for taxpayers to pay their litigation costs. Section 1988 was intended to help the civil rights Davids of the world do battle with the governmental Goliaths. AT&T Wireless is a seven-billion dollar subsidiary of a sixty-two billion dollar multi-national corporation. 1 My, how the Davids have grown.

. These are 1999 revenue figures for AT&T Wireless and AT&T. See <http:// www.att.com>