More on Attorneys' Fees: Does the Eleventh Amendment Bar Awards Against State Agencies and Officials?

As noted in an earlier ELR Comment,¹ the law regarding awards of attorneys' fees to public interest litigants has moved rapidly in the last several years away from the traditional "American rule" which bars the recovery of such fees by a successful litigant. Courts have become increasingly willing to exercise their equitable discretion and award attorneys' fees in circumstances where there has been obdurate behavior by the losing party, where the facts present a common fund situation among a large class of plaintiffs, or where the plaintiff is acting as a private attorney general.

But while the American rule serves as the only barrier to an award of counsel fees against a losing private party, there are two further obstacles to the granting of such awards against governmental agencies and officials. 28 U.S.C. § 2412 authorizes a judgment for costs, "not including the fees and expenses of attorneys," in suits against a federal official acting in his official capacity, and this section has been held to bar grants of attorneys' fees in those cases where there is no specific statutory authorization for such an award.² In addition to this statutory prohibition, [4 ELR 10133] the Eleventh Amendment limits the power of the federal courts to issue judgments binding the sovereign states without their consent.³ Although the record of attorneys' fees awards against state agencies and officials in the absence of state consent in the form of an explicit statutory authorization is by no means sparse, the recent rulings of the Sixth Circuit in Jordon v. Gilligan⁴ and the Fifth Circuit in Named Individual Members of the San Antonio Conservation Society v. Texas Highway Department,⁵ threaten to preclude any further developments along this line.

Both Jordon and San Antonio rely heavily on the Supreme Court's decision in Edelman v. Jordan,⁶ which reversed a Seventh Circuit ruling and held that an award of retroactive payments of wrongfully withheld welfare benefits was barred by the Eleventh Amendment. Mr. Justice Rehnquist, writing for the majority in a 5-4 decision, stated that such an award constitutes a monetary judgment against the State of Illinois, and is distinguishable from state expenditures following necessarily from injunctive decrees which are prospective in nature. The latter are permissible under the precedent of Ex Parte Young,⁷ while the former are precluded by the Eleventh Amendment. Justice Rehnquist also asserted, in the face of a cogent dissent by Justice Douglas, that the state did not waive this immunity merely by participating in the federally aided welfare program, since any waiver of a constitutional privilege must be explicit rather than implied.

Although Edelman did not specifically deal with attorneys' fees, the Court's holding that a federal court's remedial power against the states is limited by the Eleventh Amendment to prospective relief, and may not include a retroactive award which requires the payment of funds out of the state treasury unless the state has given its consent, has obvious implications for the attorneys' fees question. Prior to the Edelman decision, the law on attorneys' fees awards against the states was uncertain. In 1972, the high Court summarily affirmed, without opinion, a three-judge district court's ruling in Sims v. Amos,⁸ which awarded counsel fees against Alabama officials in a successful suit challenging the state legislature's malapportionment.The district court held that plaintiffs were acting as private attorneys general in protecting the rights of the citizens of Alabama to equal representation. Under these circumstances, according to the court, the award loses much of its discretionary character and becomes part of the effective remedy the court should fashion to encourage public interest litigation. The affirmance without opinion decreases Sims' precedential value, and the Court in Edelman brushed aside and overruled three such summary affirmances in welfare cases, although it did not mention Sims.

Relying on Sims, courts in the Fifth and Ninth Circuits have over the past two years awarded attorneys' fees against state agencies and officials in Gates v. Collier,⁹ La Raza Unida v. Volpe,¹⁰ and Brandenburger v. Thompson.¹¹ In Gates, the Fifth Circuit Court of Appeals awarded counsel fees to an inmate who successfully challenged the operating procedures of a state mental hospital as constituting a denial of equal protection. The court found defendant state officials' conduct obdurate, and held that since the grant was to come from state funds appropriated for the hospital's operation, the award was not an award of damages against the state prohibited by the Eleventh Amendment. The prayer for attorneys' fees was not, the court implied, a claim for damages, but rather an integral part of the injunctive remedy.

In La Raza, the U.S. District Court for the Northern District of California granted counsel fees to the successful plaintiffs in a suit against the State Highway Department and its Chief Engineer. The court based the award on its findings that the Department of Transportation Act of 1966 did not forbid such a grant, and that the award would shift the financial burden of the suit so as to effectuate the strong congressional policy regarding the preservation of park lands manifested in § 4(f) of the Act. The court stated that "[s]ince … the state may no more immunize an individual from costs incident to an injunction than it may insulate him from the injunction itself, we find that sovereign immunity does not bar an award of attorneys' fees …." This ruling, which was severed from the district court's decision on the merits, is now on appeal before the Ninth Circuit Court of Appeals.

While the circuit court has not yet ruled in La Raza, it did award, in Brandenburger, attorneys' fees to plaintiffs who successfully challenged Hawaii's one-year residency [4 ELR 10134] requirement for welfare eligibility. The court found that plaintiffs had acted as private attorneys general in attacking an unconstitutional state policy, and relied on Sims for the proposition that such an award assessed against a state official acting in his official capacity is not proscribed by the Eleventh Amendment. Brandenburger was decided the same day as Edelman, however, and thus does not represent a response to the Supreme Court's ruling in that case.

The Edelman decision has already, caused the Sixth Circuit to bar unequivocally awards of attorneys' fees against states which have not specifically waived their Eleventh Amendment immunity. In Jordon v. Gilligan, a reapportionment case much like Sims, the circuit court ruled that although the successful plaintiffs had undoubtedly conferred a benefit on all Ohio voters by their action, an award of counsel fees under the class benefit theory could be made only where the court had the requisite equitable jurisdiction. While the court did have such jurisdiction over plaintiffs' claims for injunctive relief under the precedent of Ex Parte Young, the Eleventh Amendment precluded that jurisdiction from extending to the granting of an award of attorneys' fees against a sovereign state. The court refused to follow Sims and Gates, stating that according to Edelman, the Eleventh Amendment bars any award which is "[m]easured in terms of a monetary loss resulting from a past breach of a legal duty on the part of the defendant state officials," and that awards of counsel fees fall within that classification.

Edelman has also had a marked effect on the Fifth Circuit. In Named Individual Members of the San Antonio Conservation Society v. Texas Highway Department, an important environmental lawsuit under § 4(f) of the DOT Act of 1966 which has been in the courts for more than six years, the circuit court denied plaintiffs' motion for attorneys' fees through their successful first appeal. Plaintiffs had conceded that the federal defendants were immunized from such an award by 28 U.S.C. § 2412, but argued that a grant of fees should be made against the state agency and its officials under the private attorney general theory. The court did not deny that plaintiffs were effectuating important congressional policy by bringing the suit, but noted that cases in which counsel fees were granted because of obdurate behavior or under the private attorney general theory against non-state defendants were clearly inapposite. Citing the Edelman rule that "a suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment," the court went on to deny plaintiffs' claim. Gates was neither distinguished nor expressly overruled; in fact, it was not even mentioned. Judge Tuttle, who wrote the Gates opinion, sat on the panel in San Antonio and dissented from the majority's disposition of the attorneys' fees question. But his dissent was on the narrow ground that the trial court had not determined whether such an award would run against the state rather than the individual state officials, and he did not invoke Gates in substantive opposition to the majority's decision.

Only one other circuit has thus far responded to Edelman. In Skehan v. Board of Trustees of Bloomsburg State College,¹² the Third Circuit Court of Appeals remanded an improperly discharged professor's claim for attorneys' fees for a determination of whether the defendant college is an agent of Pennsylvania. If the college is in fact a state instrumentality, then it partakes of the state's Eleventh Amendment immunity. In that event, no relief may be awarded against it directly and only prospective injunctive or monetary relief may be awarded against the individual defendant state officials. According to the court, Edelman must be read as closing the door on any money award from a state treasury, including attorneys' fees. The court also stated its belief that the Supreme Court's failure to overrule Sims and Gates in Edelman was due to inadvertence rather than any intention to leave open the issue of attorneys' fees awards against state agencies and officials.

Whether the issue in fact remains open is at this point a troublesome question. The Ninth Circuit cases of La Raza and Brandenburger seem firm precedent for granting a counsel fees claim against state agencies of officials, but the circuit court has not yet responded to Edelman. The Third, Fifth and Sixth Circuits have all taken the view that Edelman forecloses the possibility of such awards, and the judicial drift is apparently in that direction.

The Sixth Circuit in Jordon discounted the importance of its ruling to public interest litigants by pointing out that attorneys' fees awards can still be made against non-sovereign defendants.This view apparently assumes that suits against private parties will play a larger role in protecting the public interest than will actions against states and their instrumentalities. Such an assumption in the realm of environmental protection is open to serious question, however, with San Antonio and La Raza serving as cases in point. Such challenges to federal-state highway projects are but the most obvious area in which the foreclosure of counsel fees awards against state agencies and officials could have dire consequences for public interest environmental litigation. The impossibility of an attorneys' fees award might serve to discourage meagerly financed environmental groups from taking it upon themselves to file watchdog actions challenging questionable state projects or procedures. As was stated in an earlier Comment,¹³ many of these groups have hopes that attorneys' fees awards can make them self-sufficient and self-perpetuating, and such expectations will not be buoyed by Edelman's consequences. The question of whether the Eleventh Amendment bar has become an established legal principle now rests with the Ninth Circuit Court of Appeals as it prepares to rule on the state defendants' appeal from the district court's grant of attorneys' fees in La Raza.

1. Comment, Attorneys' Fees: The Growing Number of Awards to Public Interest Plaintiffs, 4 ELR 10021 (Feb. 1974).

2. Wilderness Society v. Morton, 4 ELR 20279 (D.C. Cir. Apr. 4, 1974). The D.C. Circuit Court of Appeals also recently reversed a district court's award of attorneys' fees to plaintiffs in Pyramid Lake Paiute Tribe of Indians v. Morton, 3 ELR 20730 (D.D.C. 1973). The circuit court's reversal (4 ELR 20660) came on the ground that the lower court erred in holding that a statute directing the U.S. attorney to represent the Indian Tribe constituted an implied authorization for attorneys' fees awards when the tribe retains private counsel in a successful suit against the government. According to the court, 28 U.S.C. § 2412 clearly precludes the finding of such an implied authorization. Under this interpretation, only in litigation under statutes such as the Clean Air Act which specifically provide for such awards may courts grant attorneys' fees against federal parties.

3. The Eleventh Amendment is as follows:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State or by Citizens or Subjects of any foreign State.

4. 4 ELR 20647 (6th Cir. July 18, 1974).

5. 4 ELR 20643 (5th Cir. July 5, 1974).

6. 42 LW 4419 (U.S. Mar. 25, 1974).

7. 209 U.S. 123 (1908).

8. 2 ELR 20190 (M.D. Ala. 1972).

9. 489 F.2d 298 (5th Cir. 1973).

10. 2 ELR 20691 (N.D. Cal. 1972).

11. 494 F.2d 885 (9th Cir. Mar. 25, 1974).

12. No. 73-1613 (3rd Cir. May 3, 1974).

13. Comment, Attorneys' Fees: The Growing Number of Awards to Public Interest Plaintiffs, 4 ELR 10021 (Feb. 1974).