J. B. TAYLOR et al., Plaintiffs-Appellees, v. E. P. PERINI, Superintendent, Defendant-Appellant.
No. 73-2071.
United States Court of Appeals, Sixth Circuit.
Argued April 15, 1974.
Decided Oct. 3, 1974.
Weick, Circuit Judge, filed separate concurring opinion; Edwards, Circuit Judge, dissented and filed opinion.
James A. Laurenson, Chief Counsel, Columbus, Ohio, for appellant; William J. Brown, Atty. Gen., Richard B. Igo, Asst. Atty. Gen., Columbus, Ohio, on brief.
Niki Z. Schwartz, Gold, Rotatori, Mes-serman & Hanna, Cleveland, Ohio, for appellee.
Thomas W. Gray, Gerald M. Jackson, Avery S. Friedman, Cleveland, Ohio, on brief for amicus curiae Bar Assn, of Greater Cleveland.
Armand Derfner, Washington, D. C., for amicus curiae Lawyers’ Committee for Civil Rights Under Law; Wilmer, Cutler & Pickering, Washington, D. C., of counsel.
CELEBREZZE, Circuit Judge.
This is an appeal by the Superintendent of the Marion Correctional Institution at Marion, Ohio and by the State of Ohio from an Order of the District Court denying Appellant’s motion to vacate a portion of a Journal Entry and Order entered on September 12, 1972 providing for the payment of attorneys' fees. The award was part of the resolution of a class action by the Institution’s inmates for injunctive relief from conditions and practices violative of rights secured to them by the Constitution and 42 U.S.C. § 1983.
The action was commenced on September 17, 1969, by J. B. Taylor, an inmate of the Marion Correctional Institution on behalf of himself and his fellow inmates against E. P. Per ini, Superintendent of the Institution. Counsel was appointed by the court to represent Appel-lees. Appellant Perini was represented by the Ohio Attorney General. Appel-lees’ counsel filed a First Amended Complaint seeking only injunctive relief from allegedly unconstitutional conduct and conditions, including obstruction of access to courts and lawyers, racial discrimination in job assignments and racial segregation of living quarters, and deprivations of substantive and procedural due process in the administration of discipline, including the infliction of cruel and unusual punishment.
On January 7, 1971, Appellee Taylor filed a Supplemental Complaint seeking compensatory and punitive damages, alleging that Perini had personally subjected him to deprivations of civil rights in retribution for filing the lawsuit.
On September 12, 1972, the District Court entered a Journal Entry and Order which had been negotiated and agreed to by counsel. That order granted nearly all the relief requested in the First Amended Complaint, including attorneys’ fees and expenses, and provided that the Court would retain continuing jurisdiction to oversee the implementation of its order.
Subsequently, following a trial, the District Court entered Findings of Fact and Conclusions of Law on the issues raised in Appellee Taylor’s Supplemental Complaint. The Court held that Appellant Perini was not liable to Appellee because “the defendant was, at all times, acting in good faith to carry out his duties as he understood them.”
Subsequent negotiations resulted in an agreement in December 1972 between Appellees’ counsel and the Attorney General’s office as to the amount to be paid pursuant to the provision for attorneys’ fees. However, on February 26, 1973 the Attorney General’s office advised Appellees’ counsel that no attorneys’ fees would willingly be paid in compliance with the order of September 12, 1972. Appellees’ counsel then filed a motion for determination of attorneys’ fees and expenses pursuant to the order of September 12, 1972, and Appellants moved to vacate that portion of the order providing for attorneys’ fees pursuant to Rule 60(b) of the Federal Rules of Civil Procedure on the ground that the Eleventh Amendment prohibited the award. On May 23, 1973, the District Court denied the motion to vacate, set the amount of the award at $21,055.07, and ordered it paid.
Subsequently the Attorney General filed a motion seeking:
An order of Clarification, specifying that the award of attorneys fees in this matter was a judgment to be satisfied from revenues of the State of Ohio, and not a judgment to be exacted from the personal earnings, savings, or other assets of E. P. Perini.
On July 25, 1973 the District Court clarified its previous order by specifically providing:
“. . . the award of attorney fees in this action runs against both the defendant Perini and the State of Ohio and can be collected from either at plaintiffs’ option.”
The District Court also granted Appellants’ motion for a stay of execution pending appeal to this Court.
The questions presented to us are whether a United States District Court may hold either a prison warden, in his personal capacity, or the State of Ohio, or both, liable for attorneys’ fees to an attorney whom the Court appointed to represent a prisoner in a 42 U.S.C. § 1983 lawsuit against the warden. The propriety of an award of attorneys’ fees by a federal court against a state or its officials acting in their official capacity has been settled in this Circuit by our recent holding in Jordon v. Gilligan, 500 F.2d 701 (6th Cir. 1974), that such an award is barred by the Eleventh Amendment.
Appellee contends, however, that the state waived its immunity under that amendment when the Attorney General consented to the original court order awarding attorneys’ fees. We do not agree. In Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945), the Supreme Court, in interpreting a provision of the Indiana Constitution, stated:
We interpret this provision as indicating a policy prohibiting state consent to suit in one particular case in the absence of a general consent to suit in all similar causes of action. Since the state legislature may waive state immunity only by general law, it is not to be presumed in the absence of clear language to the contrary, that they conferred on administrative or executive officers discretionary power to grant or withhold consent in individual cases. Nor do we think that any of the general or special powers conferred by statute on the Indiana attorney general to appear and defend ac-. tions brought against the state or its officials can be deemed to confer on that officer power to consent to suit against the state in courts when the state has not consented to be sued. 323 U.S. at 468, 65 S.Ct. at 352.
And in Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), which followed the holding in Ford Motor, the Supreme Court said:
In deciding whether a State has waived its constitutional protection under the Eleventh Amendment, we will find waiver only where stated “by the most express language or by such overwhelming implications from the text as will leave no room for any other reasonable construction.” Murray v. Wilson Distilling Co., 213 U.S. 151, 171, 29 S.Ct. 458, 53 L.Ed. 742 (1909). 415 U.S. at 673, 94 S.Ct. at 1361
We are unable to conclude that the State of Ohio has, through its Attorney General, waived its constitutional immunity by consenting to the award of attorneys’ fees in this case. The Ohio Supreme Court has held that an award of attorneys’ fees to be paid out of the state treasury must be authorized by a two-thirds vote of the General Assembly. Grandle v. Rhodes, 169 Ohio St. 77, 157 N.E.2d 336 (1959). Thus, we find that the state has not conferred on its Attorney General the authority to consent in individual cases to a payment of attorneys’ fees out of the state treasury. In view of this determination, the award of fees against the State of Ohio cannot stand.
On a different footing is the award of attorneys’ fees against Appellant Perini in his individual capacity. An award of attorneys’ fees individually against Perini is not, of course, barred by the Eleventh Amendment. Even an award of damages is not so barred. As the Supreme Court recently reiterated, “damages against individual defendants are a permissible remedy in some circumstances notwithstanding . the fact that they hold public office.” Scheuer v. Rhodes, 416 U.S. 232, 238, 94 S.Ct. 1683, 1687, 40 L.Ed.2d 90 (April 17, 1974). Two considerations are necessary, however, to determine whether the award made in this case can stand. First, it is contended that Perini is immune from liability under a theory of common law executive immunity. The Supreme Court, in Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683 (1974), discussed the nature of this immunity in the context of a suit filed under 42 U.S.C. § 1983:
These considerations suggest that, in varying scope, a qualified immunity is available to officers of the executive branch of Government, the variation dependent upon the scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action on which liability is sought to be based. It is the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with good faith belief, that affords basis for qualified immunity of executive officers for acts performed in the course of official conduct. 416 U.S. at 247, 94 S.Ct. at 1692
Thus, in order to determine whether a defendant is entitled to official immunity from liability for damages, there must be some finding as to the scope of his discretion, the existence of reasonable grounds for the propriety of the official’s actions, and the exercise of good faith in the performance of his duties. As we have indicated previously, repeated acts of negligence may form the basis of liability for a prison warden under § 1983. Pucket v. Cox, 456 F.2d 233 (6th Cir. 1972).
However, the order in the District Court was entered
“without admission of any violation of the Constitutional rights, privileges or without a finding by the Court of whether the defendant has deprived any of the members of plaintiffs’ class of any such rights, privileges or im-immunities of any of the members of the plaintiff class by defendant, and munities.”
Thus, the purpose of the action was to remedy conditions existing in the Marion Correctional Institution, not to impose a liability against Perini individually for past deprivations of constitutional rights. The original complaint, in fact, sought only injunctive relief from unconstitutional conditions. Such actions are, of course, cognizable under § 1983. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347 (1974); Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). The question becomes, then, not one of immunity but whether an award of attorneys’ fees is, under the circumstances of this case, equitable. See Hoitt v. Vitek, 497 F.2d 598 (1st Cir. 1974); Jordan v. Fusari, 496 F.2d 646 (2d Cir. 1974); Brandenburger v. Thompson, 494 F.2d 885 (9th Cir. 1974); cf. Skehan v. Board of Trustees, 501 F.2d 31 (3rd Cir. 1974).
We are, at this point, presented with the question of whether Appellant Peri-ni consented to the award of attorneys’ fees. The District .Court’s order provided :
[That] defendant shall pay to plaintiffs’ counsel reimbursement for out-of-pocket expenses and reasonable attorney’s fees based upon services rendered in the handling of this action. In the event the parties are unable to agree upon the amount of payment under this paragraph, such issue shall be submitted to the Court for hearing and decision.
We have no hesitation in finding that a consent to an award would be binding on Perini. Our question is whether we are presented with such a consent. While the District Court’s order clearly expresses an agreement to pay attorneys’ fees, it is not clear who agreed to pay them. The language used by the District Court in granting Appellant’s motion for clarification leads to an ambiguity in determining the meaning of the Court’s original order. The District Court stated, in part:
On September 12, 1972, a consent order was entered in this matter, part of which provided for payment of plaintiffs’ attorney fees. Subsequently, defendant moved to vacate that portion of the consent order. On May 23, 1973, this Court denied the motion to vacate and awarded attorney fees as part of its equitable powers. Sims v. Amos, 340 F.Supp. 691 (M.D.Ala.) (Three-judge court) aff’d 409 U.S. 942, 93 S.Ct. 290, 34 L.Ed.2d 215 (1972). See also Hall v. Cole, 412 U.S. 1, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973).
Because of the way this issue was presented, some question has arisen as to whether the defendant Perini or the State of Ohio was to satisfy the award. There can be no doubt that the Court has the power to assess costs against the named defendant. Sims v. Amos, supra. This was done, and consequently, the defendant Perini is liable for the award. In addition, however, it is apparent that the State of Ohio was and is a real party in interest to this action. Although the State of Ohio could not have been named as a defendant, it seems clear that an assessment of costs can be made against the state in this situation. See discussion United States ex rel. Griffin v. McMann, 310 F.Supp. 72, 74 (E.D.N.Y.1970). Thus, the award of attorney fees in this action runs against both the defendant Perini and the State of Ohio and can be collected from either at plaintiffs’ option.
Thus, it is unclear whether the court assessed attorneys’ fees against Perini because he had consented to pay them or because the Court simply felt an award of attorneys’ fees against Perini was equitable. For this reason, we must remand to the District Court for a finding on this question. It is necessary that a Court state its reasons for granting or denying attorneys’ fees, in order that the Court’s action can be properly reviewed on appeal. See Milburn v. Huecker, 500 F.2d 1279 (6th Cir. 1974). If it is determined that Appellant consented to the award of attorneys’ fees, then they would stand on that basis. If it is found that there was no consent, then the award must rest on equitable considerations.
While the traditional American rule has not permitted recovery of attorneys’ fees unless statutorily or contractually authorized, federal courts may, when the interests of justice require, exercise their equitable power to award attorneys’ fees in the absence of such authorization. Hall v. Cole, 412 U. S. 1, 5, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973). Thus, in an appropriate case, attorneys’ fees may be awarded in a § 1983 case, even though that statute does not expressly authorize such an award. Brandenburger v. Thompson, 494 F.2d 885 (9th Cir. 1974); Sims v. Amos, 340 F.Supp. 691 (M.D.Ala.) aff’d 409 U.S. 942, 93 S.Ct. 290, 34 L.Ed.2d 215 (1972). The inquiry, then, is whether the present action is an appropriate case. See Milburn v. Huecker, 500 F.2d 1279 (6th Cir. 1974).
It is established that an award of attorneys’ fees is appropriate when the unsuccessful party has acted in bad faith or when the litigation has conferred a substantial benefit on the members of an ascertainable class and the award serves to spread the cost of litigation among them. Hall v. Cole, 412 U.S. 1, 5, 93 S.Ct. 1943 (1973). This latter exception is generally referred to as the “common fund” or “common benefit” exception. As an award against Appellant individually would not serve to spread the cost of litigation, it appears that the “common benefit” exception is not applicable here.
It is unclear from the order of the District Court whether the award was based on the bad faith of Appellant and was thus awarded to punish his obdurate behavior. Appellant contends that the District Court specifically found that he was at all times acting in good faith. If so, this would preclude an award of attorneys’ fees under the bad faith rationale. See Capers v. Cuyahoga County Board of Elections, 472 F.2d 1225 (6th Cir. 1973). It is true that the Court, in its order of October 10, 1972, made such a finding with regard to allegations made in the Supplemental Complaint involving Appellee’s transfer from the Marion Correctional Institution to the Ohio Penitentiary. That finding did not refer, however, to the allegations made in the First Amended Complaint which were resolved by the order of September 12, 1972. There had not been then, any finding with regard to Peri-ni’s good faith as to Appellees’ main contentions.
A third exception to the general rule has been recognized in cases where the plaintiff has acted as a “ ‘private attorney general,’ vindicating a policy that Congress considered of the highest priority.” Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968); Hoitt v. Vitek, 497 F.2d 598 (1st Cir. 1974); Wilderness Society v. Morton, 495 F.2d 1026 (D.C.Cir.1974) (en banc); Brandenburger v. Thompson, 494 F.2d 885 (9th Cir. 1974); Knight v. Auciello, 453 F.2d 852 (1st Cir. 1972). While we have not previously considered directly the “private attorney general” exception, we find ourselves in agreement with the reasoning which underlies these decisions. Awarding attorneys’ fees in cases where there is no potential substantial award of damages and where the cost of supporting a case for injunctive relief is high serves to prevent the unjust discouragement of parties in bringing suits to vindicate important rights. Wilderness Society v. Morton, 495 F.2d 1026 (D.C.Cir. 1974) (en banc).
In turning to the facts of this case, we find that Appellees, in bringing this action, vindicated constitutional rights strongly favored by congressional policy. Sims v. Amos, 340 F.Supp. 691 (M.D.Ala.), aff’d 409 U.S. 942 (1972); Brandenburger v. Thompson, 494 F.2d 885 (9th Cir. 1974). They could not have maintained the action if they had been required to support the extensive discovery necessary for a suit of this nature. Thus, in this type of lawsuit, “[t]o secure counsel willing to undertake the job of trial, [including the substantial duty of representing an entire class] . . . necessarily means that someone — -plaintiff or lawyer — must make a great sacrifice unless equity intervenes.” Bradley v. Richmond School Board, 416 U.S. 696, n. 25, 94 S.Ct. 2006, 2019, 40 L.Ed.2d 476 (May 15, 1974).
The judgment of the District Court is reversed with regard to the assessment of attorneys’ fees against the State of Ohio. This finding is based on our holding that the award is barred by the Eleventh Amendment. However, the District Court on remand may wish to consider whether H.B. 800, effective January 1, 1975, which waives the immunity of the State of Ohio, is effective in this case.
The ease is remanded for findings with regard to Appellant’s consent to the award against him. If the District Court finds that Appellant did not consent to the award, but that an award of attorneys’ fees is appropriate, it must state its reasons for making the award, in order that the award can be properly reviewed.
. The pertinent provisions of Rule 60(b) provide:
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
(4) the judgment is void ;
* * * * *
or (6) any other reason justifying relief from the operation of the judgment.
. This figure was reached by agreement of the parties.
. While Appellant Perini has not raised as an issue his lack of consent to the award of attorneys’ fees, we mention the point because we are not clear as to the reasoning on which the award was based,
. We have previously discussed the strong policy favoring enforcement of settlement agreements. Kukla v. National Distillers, 483 F.2d 619 (6th Cir. 1973). It has been held that a judgment entered by agreement of the attorney of record will be set aside only upon affirmative proof by the party seeking to vacate it that the attorney liad no right to consent to its entry. Thomas v. Colorado Trust Deed Funds, Inc., 366 F.2d 136 (10th Cir. 1966). Our difficulty arises, however, from an inability to determine whether there has in fact been a consent by the attorney.
. Some of the considerations would be whether the act would apply retroactively to cases pending on appeal, Bradley v. Richmond School Board, 416 U.S. 696, 94 S.Ct. 2006 (1974); whether by virtue of the waiver, a federal court can make an award of attorneys’ fees against the State of Ohio; and whether the waiver as to actions in federal court would be applicable prior to the January 1, 1975 effective date of the act.