Lauritzen v. Lehman

BOOCHEVER, Circuit Judge,

concurring in part and dissenting in part.

I concur in parts II-B and II-C of the majority opinion and in the majority’s remand to the district court for reconsideration of whether Lauritzen might be eligible for attorney’s fees under section 2412(d). I dissent, however, from the majority’s analysis of section 2412(b), and from its conclusion that Lauritzen is ineligible for attorney’s fees under that section. In my view, the majority undervalues the importance of the Equal Access to Justice Act’s legislative history in interpreting section 2412(b).

I. Analysis of Section 2412(b)

The district court correctly pointed to the testimony of Armand Derfner as the key to understanding the House subcommittee's amendment of section 2412(b). As the majority notes, the original version of Senate Bill 265 limited the United States’ liability under section 2412(b) to the extent that a “private party” would be liable. Award of Attorney’s Fees Against the Federal Government: Hearings on S.265 Before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the House Judiciary Committee, 96th Cong., 2d Sess. at 3, 9 (1980) (hereinafter Hearings on S.265). Derfner was the only witness to comment on the term “private party”. He expressly brought to the committee’s attention the discrepancy between a state’s liability for attorney’s fees under sections 1983 and 1988, 1 and the federal government’s liability in similar circumstances under the proposed wording of section 2412(b):

Mr. Kastenmeier, if I could just direct myself to one portion of this bill?

There is an area in which a slight drafting modification could carry out what I believe might be the intention of the committee; and that is to put the United States completely on a par as far as the enforcement of important constitutional and statutory rights.

In the Civil Rights Act of 1976 you provided that when someone, whether it be an individual or business, or whatever, sues a State or local government under 42 United States Code, section 1983 , to vindicate a constitutional or Federal statutory right, that fees would be available under the Newman v. Peggy [Piggie] Park standard. These bills say that the United States should pay fees — in the amendment to 28 United States Code 2412 — in those circumstances where the court may award such fees in suits involving private parties.

That doesn’t say .State or local government, but if the language were amended to read, “in those circumstances where the court may award such fees in suits involving other litigants”; it would achieve that purpose. And I think it would go even further toward putting the United States on a par with other governmental bodies.

Hearings on S.265 at 100.

Derfner was not quite accurate in stating that a party “sues a State” under section *561 1983. The eleventh amendment bars such a suit against a state qua state absent the state’s consent. Quern v. Jordan, 440 U.S. 332, 339-41 , 99 S.Ct. 1139, 1144-45 , 59 L.Ed.2d 358 (1979); Alabama v. Pugh, 438 U.S. 781, 782 , 98 S.Ct. 3057, 3057 , 57 L.Ed.2d 1114 (1978) (per curiam); Peters v. Lieuallen, 693 F.2d 966, 970 (9th Cir.1982). Instead, section 1983 actions are brought against state officials in their official capacity, see Peters, 693 F.2d at 970 , or against local governmental units, see Monell v. New York City Department of Social Services, 436 U.S. 658, 690-91 , 98 S.Ct. 2018, 2035-36 , 56 L.Ed.2d 611 (1978). Nevertheless, Derfner was correct that the state itself is liable under section 1988 for the attorney’s fees assessed in section 1983 actions against state officials, at least where the plaintiff obtains prospective relief in the underlying section 1983 action. In Hutto v. Finney, 437 U.S. 678 , 98 S.Ct. 2565 , 57 L.Ed.2d 522 (1978), the Supreme Court held that such fees did not offend the eleventh amendment, id. at 694-97 , 98 S.Ct. at 2575-77, and could be awarded even though the state itself was not a party to the underlying section 1983 action. Id. at 699-700, 98 S.Ct. at 2578. As the Court noted:

Although the Eleventh Amendment prevented respondents from suing the State by name, their injunctive suit against prison officials was, for all practical purposes, brought against the State.

Id. See also Spain v. Mountanos, 690 F.2d 742, 744 (9th Cir.1982) (state Controller and Treasurer ordered to pay from state treasury attorney’s fees assessed in section 1983 action against state officials); Gates v. Collier, 616 F.2d 1268, 1271 (5th Cir.1980) (same). 2

The thrust of Derfner’s suggestion, therefore, was that the United States should be liable for attorney’s fees if federal officials deprived a party of constitutional rights, just as a state would be liable for such fees under section 1988 if state officials violated section 1983. Without further discussion of the bill’s wording, the House subcommittee amended the bill to replace “private party” with the current terms “any other party”, essentially a verbatim adoption of Derfner’s suggestion.

Testimony before a congressional committee sometimes is of dispositive weight in interpreting congressional intent where the testifying witness is closely identified with the legislation. See, e.g., United States v. Henning, 344 U.S. 66 , 72 n. 14, 73 S.Ct. 114 , 118 n. 14, 97 L.Ed. 101 (1952) (citing congressional testimony of the Assistant Administrator for Insurance, Veterans Administration, to interpret statute); United States v. American Trucking Associations, Inc., 310 U.S. 534, 547-48 , 60 S.Ct. 1059, 1066 , 84 L.Ed. 1345 (1940) (testimony of Chairman of Legislative Committee of the Interstate Commerce Commission); 2A C. Sands, Sutherland Statutory Construction, § 48.11 (4th ed. 1973) (statements of individual witnesses considered where they sponsored or led legislation through Congress). Those cases impliedly held that Congress evidenced agreement with the witness’ views by enacting the legislation that the witness sponsored.

In the instant case, it is the sequence of events, rather than the witness’ sponsorship of the legislation, that provides a nexus between the intent of Congress and that of the witness. Congress, without stating *562 any other reason for the change, amended S.265 in precisely the fashion Derfner suggested. Far from being a bit or scrap of legislative history as the majority implies, Derfner’s testimony is the only reason in the legislative record for the amendment. The majority fails to explain the remarkable coincidence in the timing of Derfner’s suggestion and the amendment. The only plausible explanation is that Congress adopted the amendment for the reason Derfner suggested. See Premachandra v. Mitts, 727 F.2d 717, 728-29 (8th Cir.1984), rehearing granted, 727 F.2d 717 (8th Cir.1984).

If further confirmation of congressional purpose were necessary, it is apparent that the amendment replacing “private party” with “any other party” was aimed at section 1983. The House report on the amended bill expressly states that section 2412(b) “clarifies the liability of the United States under such statutes as the Civil Rights Attorney’s Fees Awards Act of 1976 [section 1988] ...” H.R.Rep. No. 96-1418, 96th Cong., 2d Sess. 17, reprinted in 1980 U.S.Code Cong. & Ad.News 4984, 4996 (hereinafter House Report). Of all the statutes mentioned in section 1988, however, only section 1983 differentiates between states and “private parties”, because only section 1983 requires parties to act under color of state law before liability may attach.

Federal officials who deprive persons of constitutional rights under color of federal law are not liable for damages under section 1983. See, e.g., Ellis v. Blum, 643 F.2d 68 , 83 and n. 17 (2d Cir.1981); Hubbert v. United States Parole Commission, 585 F.2d 857, 858-59 (7th Cir.1978). Relief is available against federal officials in such situations, however, either in a suit arising directly from the constitution against the official in his individual capacity, see Bivens v. Six Unknown Named Federal Narcotics Agents, 403 U.S. 388 , 91 S.Ct. 1999 , 29 L.Ed.2d 619 (1971), or in a suit against him in his official capacity, see Beller v. Middendorf, 632 F.2d 788, 796-97 (9th Cir.1980), cert. denied, 452 U.S. 905 , 101 S.Ct. 3030 , 69 L.Ed.2d 405 (1981). The only conceivable purpose for the amendment to S.265 was to place the federal government in the same position regarding attorney’s fees in these actions as state governments under section 1983 (through the provisions of section 1988).

In order to avoid the logical conclusion that S.265 was amended to impose fees in these actions, however, the majority construes the amendment in an unrealistic manner. The majority concludes the amendment merely removes sovereign immunity as a bar to fees awards “where the government is found liable under a substantive provision that would authorize a fee award against a state.” Majority Op. at 556; see also Majority Op. at 554 n. 4. The majority, however, cites no “substantive provision” other than section 1983 that distinguishes between states and individuals. The original version of S.265, therefore, removed the sovereignty bar to fee awards in all cases except those arising under section 1983, because “private parties” could be liable under all of the other statutes named in section 1988. The majority apparently means that Congress adopted the amendment only to remove sovereign immunity as a bar to fees awards against the federal government in the extremely rare case where such fees would be available under section 1983. In other words, in the majority’s view Congress intended that attorney’s fees could be assessed against the federal government under section 2412(b) if a federal official deprived a party of constitutional rights under color of state law, but not if the official acted under color of federal law.

The legislative record does not support this strained construction of congressional intent. Federal officials usually act under color of federal law and seldom act to deprive a party of constitutional rights under color of state law. See Premachandra, 727 F.2d at 729 ; cf. Hampton v. Hanrahan, 600 F.2d 600, 623 (7th Cir.1979), rev’d in part on other grounds, 446 U.S. 754 , 100 S.Ct. 1987 , 64 L.Ed.2d 670 (1980) (per curiam) (imposing liability on federal officials under section 1983 only where *563 state officials played a significant role in the underlying constitutional violation). The majority apparently recognizes that Congress did not intend to focus on these uncommon situations, because the majority adopts its construction even though it assumes that Congress “amended section 2412(b) in response to the comments of Mr. Derfner.” Majority Op. at 556. I would not read the amendment so as to frustrate Congress’ intent. Cf. Barnes v. Donovan, 720 F.2d 1111, 1114 (9th Cir.1983) (parties may not resort to an unduly literal interpretation of a statute that eviscerates the clear intent of Congress).

II. Relationship of Sections 2412(b) and 2412(d)

The majority believes that the mandatory fees assessed by section 2412(d) sufficiently meet the purposes of the EAJA, so that it is unnecessary to allow additional discretionary fees under section 2412(b). See Majority Op. at 557. The general statutory exception for fees awards, the majority concludes, was intended to be section 2412(d). Majority Op. at 554, 556-57.

These two statutory sections, however, have entirely different aims, although both are consistent with the overall congressional intent to reduce the deterrent impact of litigation cost and the disparity of resources in litigation by individuals against the federal government. See House Report at 5-6, 1980 U.S.Code Cong. & Ad. News at 4984. Prior to adoption of the EAJA, 28 U.S.C. § 2412 prohibited awards of attorney’s fees against the United States unless a statute specifically authorized such an award. 3 See, e.g., Spencer v. NLRB, 712 F.2d 539, 544 (D.C.Cir.1983). The effect was to limit federal exposure to attorney’s fees liability in some situations where states or private individuals risked such an award under the common law or statutes that awarded fees. See House Report at 8, 1980 U.S.Code Cong. & Ad. News at 4987. Section 2412(b) was aimed at removing the federal government’s unfair advantage:

There appears to be no justification for exempting the United States in these situations; the change simply reflects the belief that, at a minimum, the United States should be held to the same standards in litigating as private parties. As such, it is consistent with the history of § 2412 which reflects a strong movement by Congress toward placing the Federal Government and civil litigants on a completely equal footing.

House Report at 9, 1980 U.S.Code Cong. & Ad.News at 4987. See Premachandra, 727 F.2d at 726-27 .

Section 1988 was one of the statutory fee awards Congress had in mind when it adopted section 2412(b). The House Report expressly referred to section 1988 twice, both times in close proximity with discussions of section 2412(b). See House Report at 8, 17, 1980 U.S.Code Cong. & Ad.News at 4987, 4996. As with fee awards assessed under section 1988, awards against the federal government under section 2412(b) are at the discretion of the district court.

In contrast with section 2412(b)’s relatively noncontroversial elimination of the federal government’s unfair advantage, the fees assessed by section 2412(d) are something of an experiment. See House Report at 13, 1980 U.S.Code Cong. & Ad.News at 4991-92. That section assesses mandatory attorney’s fees in all cases where the government’s position is not “substantially justified,” even though a similarly situated private individual, state official or state government would not be liable for fees. Unlike the fees in section 2412(b), the type of liability assessed under 2412(d) is completely novel, and Congress consequently *564 limited section 2412(d) to a three-year trial period. At the end of that time, a “sunset provision” automatically will repeal section 2412(d) to allow Congress to evaluate the law’s impact. See Pub.L. 96-481, § 204 (c), 94 Stat. 2327 (1980); House Report at 13, 1980 U.S.Code Cong. & Ad.News at 4992.

Section 2412(d), however, does not by itself put the federal government and officials on an equal footing with state counterparts, because the mandatory fees under section 2412(d) are assessed only when the government’s position is not substantially justified. A state government, therefore, might be liable for discretionary attorney’s fees under section 1988 in situations where the federal government would not be liable for mandatory fees under section 2412(d). It was precisely this sort of inequity that section 2412(b) was intended to eliminate. See House Report at 9, 1980 U.S.Code Cong. & Ad.News at 4987. Congress did not intend that section 2412(d) should “replace or supercede any existing fee-shifting statutes such as ... the Civil Rights Act ... in which Congress has indicated a specific intent to encourage vigorous enforcement____ It is intended to apply only to cases ... where fee awards against the government are not already authorized.” House Report at 18, 1980 U.S.Code Cong. & Ad.News at 4997.

The majority suggests that section 2412(b) might swallow section 2412(d) if Lauritzen’s interpretation is adopted. Majority Op. at 557-58. This fear is unwarranted for at least two reasons. First, section 2412(b) grants only discretionary power to the court to award fees, unlike the mandatory assessment under section 2412(d). Although courts may have limited discretion to deny analogous awards under section 1988, see, e.g., Sethy v. Alameda County Water District, 602 F.2d 894, 897 (9th Cir.1979), ce rt. denied, 444 U.S. 1046 , 100 S.Ct. 734 , 62 L.Ed.2d 731 (1980) (awards are unavailable where special circumstances render the award unjust), attorney’s fees nevertheless are not always awarded under section 1988. See, e.g., Greenside v. Ariyoshi, 526 F.Supp. 1194, 1197 (D.Hawaii 1981) (“An award of attorney’s fees in a civil rights action must not be such as to encourage the overpressing of marginal claims”). The court’s discretion would be no more circumscribed under section 2412(b) than under section 1988.

Second, attorney’s fees under section 1983, and by analogy under section 2412(b), only are available for constitutional or certain statutory violations by the government. As the majority notes, not every statutory violation gives rise to a cause of action under section 1983, although the circuits are in disagreement as to which statutes implicate section 1983 concerns. Majority Op. at 556 and 557 n. 8. It is extremely unlikely, therefore, that section 2412(b) would have the broad effect the majority expects. See Premachandra, 727 F.2d at 730 (section 2412(d) covers many types of suits that would not fall within the rubric of section 1983); cf. United States v. Miscellaneous Pornographic Magazines, 541 F.Supp. 122 , 129 n. 7 (N.D.Ill.1982) (questioning whether attorney’s fees could be awarded under section 2412(b) where a defendant merely raised a constitutional defense to a forfeiture action). The majority undoubtedly is correct that fees would be available under sections 1983 and 1988 for discharge of a state employee in derogation of protected first amendment activities. Majority Op. at 557-58. Such fees also should be awarded in analogous situations involving federal employees under section 2412(b). We need not address, however, the scope of constitutional or statutory violations allowing fees awards. There is no question in this case, involving basic first amendment rights, that the fees provision applies. Whether fees are appropriate in other circumstances should be decided on the concrete facts of future cases.

III. Effect on Law Enforcement

It is unclear why the majority believes that federal law enforcement would be more seriously hampered by attorney’s fees under section 2412(b) than state law enforcement currently is restricted by sections 1983 and 1988. The underlying action challenging the government’s constitution *565 al violation itself provides the primary disincentive to illegal federal government action. An assessment of attorney’s fees merely removes the financial barriers to individual enforcement of constitutional rights.

IV. Limitations on Military Suits

Finally, the majority suggests that because Lauritzen could not bring a Bivens action for monetary damages against her military commanders, her suit is not analogous to a suit under section 1983. See Majority Op. at 558 n. 10. The Supreme Court in Chappell v. Wallace, 462 U.S. 296 , 103 S.Ct. 2362 , 76 L.Ed.2d 586 (1983), held that military personnel may not sue their superior officers for monetary damages in a Bivens-type action. Id. at 2367. The Court expressly left available, however, access to the courts for military personnel to seek nonmonetary redress of constitutional wrongs. Id. In the instant case, Lauritzen sought injunctive relief as well as damages for the military’s denial of her first amendment rights. She obtained a preliminary injunction in the district court, which the court eventually dissolved when the case became moot, but Lauritzen was awarded no damages. Her suit, therefore, does not fall within Chappell’s prohibition against monetary awards, and we need not address the difficult issues such an award might raise. Cf, e.g., Better v. Middendorf, 632 F.2d 788, 795, 798 (9th Cir.1980), cert. denied, 452 U.S. 905 , 101 S.Ct. 3030 , 69 L.Ed.2d 405 (1981) (court has jurisdiction to review discharge by military for homosexual activities).

A party may be considered “prevailing” for purposes of attorney’s fees under section 1988 if he or she obtains an injunction. See, e.g., White v. City of Richmond, 713 F.2d 458, 460 (9th Cir.1983); Fitzharris v. Wolff, 702 F.2d 836, 838-39 (9th Cir.1983) (temporary restraining order that remained in effect until case became moot and served same function as preliminary injunction); Teitelbaum v. Sorenson, 648 F.2d 1248, 1249 (9th Cir.1981) (per curiam). In fact, if a party succeeds on any significant issue in the litigation which achieves some of the benefit the party sought, and establishes a clear causal relationship between the litigation and the practical outcome, he or she may be considered “prevailing” even without obtaining formal relief. Lummi Indian Tribe v. Oltman, 720 F.2d 1124, 1125 (9th Cir.1983); Rutherford v. Pitchess, 713 F.2d 1416, 1419 (9th Cir.1983); American Constitutional Party v. Munro, 650 F.2d 184, 188 (9th Cir.1981). Lauritzen is a prevailing party under the definition. Her suit resulted in a preliminary injunction, and the trial court found that the final outcome, reversal of the discharge by the BCNR, was prompted by the litigation. That finding is not clearly erroneous and the majority does not so contend. Lauritzen’s action is directly analogous to an action under section 1983 and accordingly warrants an award of attorney’s fees under section 2412(b).

. 42 U.S.C. § 1983 provides in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation'of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ...

Under 42 U.S.C. § 1988 :

In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, or title VI of the Civil Rights Act of 1964, 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 majority is incorrect if it means to assert as a blanket proposition that attorney’s fees may not be awarded in such situations against the state qua state under section 1988. See Majority Op. at 13. Quern v. Jordan, supra, relied on by the majority, expressly reaffirmed the holding in Hutto allowing such fees where a party obtained prospective relief, even though the state could not have been made a party to the underlying section 1983 action against state officials. See Quern, 440 U.S. at 344-45 , 99 S.Ct. at 1147 . Department of Education, State of Hawaii v. Katherine D., 727 F.2d 809 (9th Cir.1983), also cited by the majority, is similarly inapposite. Attorney’s fees were not awarded in that case because there was no underlying section 1983 cause of action. Id. at 820 . Lauritzen sought and obtained a preliminary injunction. Her situation, therefore, is analogous to the plaintiffs’ in Hutto, Spain and Gates . We need not decide whether she would have been eligible for fees had she sought only damages. Cf. Glosen v. Barnes, 724 F.2d 1418, 1421 (9th Cir.1984) (disallowing such fees).

. The earlier version of 42 U.S.C. § 2412 provided in relevant part:

Except as otherwise specifically provided by statute, a judgment for costs, as enumerated in section 1920 of this title but not including the fees and expenses of attorneys may be awarded to the prevailing party in any civil action brought by or against the United States or any agency or official of the United States acting in his official capacity, in any court having jurisdiction of such action.

Pub.L. 89-507, § 1 , 80 Stat. 308 (1966) (emphasis added).