Americans United for Separation of Church & State v. School District of Grand Rapids

MILBURN, Circuit Judge.

I respectfully dissent. As stated in the majority opinion, “[t]he complaint did not refer to 42 U.S.C. § 1983 or any other civil rights statute listed in 42 U.S.C. § 1988 .” At 629. Rather, "... the plaintiffs proceeded under the Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202 , and identified the basis of the district court’s jurisdiction as 28 U.S.C. §§ 1331 and 1343(a)(3).” At 630. It should be noted as set out in footnote 1 of the majority opinion that:

Section 1988 as amended provides in pertinent part: In any action or proceeding to enforce a provision of section 1981, 1982, 1983, 1985, and 1986 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. (Emphasis supplied)

It should be further noted, as pointed out by the district judge, that there was never any mention made by the plaintiffs in the district court, either orally or in writing, that the plaintiffs were relying upon 42 U.S.C. § 1983 or any other statute set out in 42 U.S.C. § 1988 . To the contrary, the district court was confronted with a straightforward declaratory judgment action as set out above, and it granted the prayed for relief. It was only after the plaintiffs prevailed and following the appellate process that they, for the first time, sought to inject section 1983 in order to make a claim for attorney’s fees under section 1988.

In Seaway Drive-In, Inc. v. Township of Clay, 791 F.2d 447, 450 (6th Cir.), cert. denied, — U.S. -, 107 S.Ct. 274 , 93 L.Ed.2d 251 (1986), which is discussed in the majority opinion, we said:

Had appellant not asserted a section 1983 claim, but instead asserted only the state law claims, or a federal law claim that is not listed in section 1988, and prevailed it would not have been entitled to attorney’s fees.

(Emphasis supplied). To me, this language in Seaway is not dicta but a holding of this circuit setting out a clear limitation on awarding attorney’s fees under section 1988. Therefore, I disagree with the majority’s holding that “Seaway does not require a reference to 1983; the substance of the constitutional claim controls the fee issue.” At 633. In my view, this holding is clearly at odds with Seaway.

I recognize that the majority takes comfort in footnote 11 in the Supreme Court’s opinion in Maher v. Gagne, 448 U.S. 122 , 100 S.Ct. 2570 , 65 L.Ed.2d 653 (1980). However, although the majority referred to the case of North Carolina Department of Transportation v. Crest Street Community Council, Inc., — U.S.-, 107 S.Ct. 336 , 93 L.Ed.2d 188 (1986), and quoted the conclusion of the opinion in an attorney’s fee dispute under section 1988, the majority failed, in my view, to follow the Supreme Court’s holding. The conclusion in North Carolina as quoted in the majority opinion is: “Under the plain language and the legislative history of § 1988, however, only a court in an action to enforce one of the laws listed in § 1988 may award attorney’s fees.” As stated by the majority, the Court relied upon and emphasized the “plain language” of section 1988.

Clearly, this action was initiated by the plaintiffs for a declaratory judgment and injunctive relief with jurisdiction in the district court being predicated upon 28 U.S.C. §§ 1331 and 1343(a)(3). While paragraph *635 25 of the plaintiffs’ complaint sets out language contained in section 1983, the same language is set out in 28 U.S.C. § 1343 (a)(3). The majority has engaged in “second guessing” as to whether or not the plaintiffs actually meant to bring a claim under section 1983 when, as earlier stated, there was never any mention made in the district court by the plaintiffs or their counsel that the matter involved a claim under section 1983 until they filed a motion for attorney’s fees after they prevailed. Moreover, in all of the cases relied upon by the majority to support an award of attorney’s fees in this case, section 1983 was set out in all the complaints of the plaintiffs in those cases where an award of attorney’s fees was made. What the plaintiffs are attempting here is an after-the-fact conversion of their declaratory judgment action into a section 1983 claim for purposes of obtaining attorney’s fees under section 1988.

In view of the plain language of section 1988 and the limitation set out by this circuit in Seaway, I would affirm the judgment of the district court, which denied the plaintiffs’ motion for attorney’s fees because their action was not a proceeding to enforce a provision of any of the civil rights statutes enumerated in section 1988.