Torres v. Sachs Opinion

    UNITED STATES COURT OF APPEALS

F or the Second Circuit

Nos. 1033, 1034— September Term, 1975.

(Argued May 14, 1976 Decided June 25, 1976.)

Docket Nos. 76-7002, 76-7072

Rosa T orres, et al.,

Plaintiff s-Appellees, 
v.

A lice Sachs, et al.,

Defendants-Appellants.

Raymond S. V elez, et al.,

Plaintiff s-Appellees,
v.

Patrick Cunningham, et al.,

Defendants-Appellants.

Juana L opez, et al.,

Plaintiff s-Appellees, 
v.

David D inkins, et al.,

Defendants-Appellants.

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B e f o r e  :

Smith, Mansfield and V an Graafeiland,

Circuit Judges.

Appeal by municipal defendants from amount of fee 
award to successful plaintiffs in voting rights action in the 
United States District Court for the Southern District of 
New York, Charles E. Stewart, Jr., Judge.

Affirmed.

Francis Caputo, New York, N.Y. (W . Bernard 
Richland, Corporation Counsel of the City 
of New York, L. Kevin Sheridan, of coun­
sel), for Appellants.

Herbert Teitelbaum, New York, N.Y. (Oscar 
Garcia-Rivera, M. D. Taracido, Kenneth 
Kimerling, Richard J. Hiller, Puerto Rican 
Legal Defense & Education Fund, Inc., New 
York, N.Y., of counsel), for Appellees.

Smith, Circuit Judge:

The municipal defendants appeal from an award by the 
United States District Court for the Southern District of 
New York, Charles E. Stewart, Jr., Judge, of $23,252 in 
attorneys’ fees to successful plaintiffs in two voting rights 
class actions seeking bilingual school board and general 
election officials and materials. We find no error and affirm 
the judgment.

Appellants on this appeal attack neither the underlying 
voting rights judgment nor the entitlement of the success­
ful plaintiffs to attorneys’ fees. They question rather the 
measure of allowable fees. Essentially they contend that

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because publicly financed legal services organizations sup­
ply counsel, and tax supported governmental bodies bear 
the burden of appellants’ costs, some measure of fees 
should be used less than the going rates for similar ser­
vices received by privately employed counsel for work of 
comparable importance, extent and complexity.

There is support for such a discounting of the value of 
similar services, see Souza v. Travisono, 512 F.2d 1137
(1st Cir. 1975), vacated on other grounds, —•—  U .S .-------,
96 S.Ct. 19 (1975); Gilpin v. Kansas State High School 
Activities Ass’n, 377 F. Supp. 1233, 1253 (D. Kan. 1974). 
The unanticipated burden on public treasuries on the one 
hand and the duty of the bar to provide services pro bono 
publico on the other are among the reasons given for re­
ductions.

W e disagree on two grounds. First, the statute and its 
legislative history make it quite plain that the Congress 
rejected any such limitation. Second, we consider that 
such voting rights enforcement by litigation, in common 
with other similar essential minority civil rights enforce­
ment, is to be encouraged by reasonable fee awards rather 
than discouraged by requiring successful plaintiffs to bear 
litigation costs.

The Congress provided for attorneys’ fees in §402 of 
the 1975 extension of the Voting Rights Act of 1965, P.L. 
94-73, 42 U.S.C. §1973Z(e).1 The legislative history of this 
section leaves no question as to congressional intent in 
its enactment. The language of the Senate bill was sub­
stituted for the language of the House bill and adopted

1 42 U.S.C. $1973Z(e) provides:
In any action or proceeding to enforce the voting guarantees of 

the fourteenth or fifteenth amendment, the court, in its discretion, 
may allow the prevailing party, other than the United States, a 
reasonable attorney’s fee as part o f the costs.

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by the House. The Senate Report is persuasive.2 The 
fees are to be measured by the same standards as in

2 See, e.g., the following excerpts:
Section 402 allows a court, in its discretion, to award attorneys’ 

fees to a prevailing party in suits to enforce the voting guarantees 
o f the Fourteenth and Fifteenth amendments, and statutes enacted 
under those amendments. This section is similar to provisions in 
Titles I I  and V II of the Civil Sights Act of 1964, which prohibit 
discrimination in public accommodations and employment, and to 
Section 403 of this act (the coverage of which is described below). 
Such a provision is appropriate in voting rights cases because 
there, as in employment and public accommodations cases, and other 
civil rights cases, Congress depends heavily upon private citizens 
to enforce the fundamental rights involved. Fee awards are a 
necessary means of enabling private citizens to vindicate these 
Federal rights.

It is intended that the standards for awarding fees under sections 
402 and 403 be generally the same as under the fee provisions of 
the 1964 Civil Rights Act. A party seeking to enforce the rights 
protected by the Constitutional clause or statute under which fees 
are authorized by these sections, i f  successful, “ should ordinarily 
recover an attorney’s fee unless special circumstances would render 
such an award unjust.”  Newman v. Piggie Parle Enterprises, Inc., 
88 S.Ct. 964, 390 U.S. 400, 402, 19 L.Ed.2d 1263 (1968). . . .

In several hearings held over a period o f years, the Committee 
has found that fee awards are essential i f  the Constitutional re­
quirements and Federal statutes to which sections 402 and 403 
apply are to be fully enforced. We find that the effects of such 
fee awards are ancilliary (sic) and incident to securing compliance 
with these laws, and that fee awards are an integral part of the 
remedies necessary to obtain such compliance. Fee awards are 
therefore provided in cases covered by sections 402 and 403 in 
accordance with Congress’ powers under, inter alia, the Fourteenth 
Amendment, Section 5. As with cases brought under 20 U.S.C. 
§1617, the Emergency School Aid Act of 1972, defendants in these 
cases are frequently state or local bodies or state or local officials. 
In such cases it is intended that the attorneys’ fees, like other items 
of costs, will be collected either from the official directly, from 
funds of his agency or under his control, or from the State or local 
government (whether or not the agency or government is a named 
party).

It is intended that the amount of fees awarded under sections 
402 and 403 be governed by the same standards which prevail in 
other types o f equally complex Federal litigation, and not be 
reduced because the rights involved may be nonpeeuniary in nature.

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other complex federal litigation and are intended to be 
collectible from offending municipal officials and bodies.

Stanford Daily v. Zurcher, 64 F.E.D. 680 (N.D. Cal. 1974); Davis 
y. County o f Los Angeles, 8 E.P.D. 119444 (C.D. Cal. 1974); Swann 
v. Charlotte-Meclclenberg [sic] Board o f Education (Civil No. 1947, 
W.D.N.C., order entered Feb. 24, 1975).

Section 403 allows a court, in its discretion, to award attorneys’ 
fees to a prevailing party in suits to enforce the civil rights acts 
which Congress has passed since 1866. This section follows the 
language of section 402 o f this Act, and of Titles I I  and Y II of 
the 1964 Civil Eights Act. All o f these acts depend heavily upon 
private enforcement, and fee awards are an essential remedy if 
private citizens are to have a meaningful opportunity to vindicate 
these important Congressional policies.

Courts have been instructed, since the passage of our first civil 
rights laws, to use the broadest and most effective remedies avail­
able to achieve the goals o f these laws, and these remedies have 
included awards of attorneys’ fees as costs. The Civil Eights Act 
o f 1866 directed courts to use whatever combination o f federal, 
state, and common law is most suitable to enforce civil rights. 42 
U.S.C. $1988. In 1870 Congress passed three separate provisions 
mandating counsel fee awards to victims of certain election law 
violations. Enforcement Act o f 1870, 16 Stat. 140. One year after 
enacting that law, Congress directed that remedies provided in such 
laws should be available in all cases involving official violations o f 
civil rights. Sec. 1, Ku Klux Klan Act o f 1871 (predecessor of 
42 U.S.C. $1983).

In several recent civil rights laws, Congress has included the 
effective remedy o f attorneys [sic] fees. Fee-shifting provisions have 
been successful in enabling vigorous enforcement of these laws. 
Before May 12, 1975, when the Supreme Court handed down its 
decision in Alyeslca Pipeline Service Co. v. Wilderness Society, 
95 S.Ct. 1612 (1975), many lower Federal courts followed these 
Congressional policies and exercised their traditional equity powers 
to award attorneys’ fees under earlier civil rights laws as well.

These pre-Alyeslca decisions remedied a gap in the specific statu­
tory provisions and restored an important historic remedy for civil 
rights violations. However, in Alyeslca, the Supreme Court held 
that the federal courts did not have the power to grant fees to 
“private attorneys general,” or private enforcers o f civil rights 
laws, except under statutes whose language specifically authorizes 
such fee awards.

The Alyeslca decision created an unexpected and anomalous gap 
in our civil rights laws whereby awards of fees are barred in the 
most fundamental civil rights cases. For instance, fees are now 
authorized in an employment discrimination suit under Title VTI

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The Act is concededly applicable to cases pending at the 
time of its enactment under the principles of Bradley v. 
School Board of the City of Richmond, 416 U.S. 969 (1974).

Litigation to secure the law’s protection has frequently 
depended on the exertions of organizations dedicated to 
the enforcement of the Civil Rights Acts. See Tillman 
v. Wheaton-Haven Recreation Ass’n, 517 F.2d 1141 (4th 
Cir. 1975). W e agree with the courts which have held 
that the “allowable fees and expenses may not be reduced 
because [the prevailing party’s] attorney was employed . . . 
by a civil rights organization . . .  or because the attorney 
does not exact a fee.” Fairley v. Patterson, 493 F.2d 
598, 606 (5th Cir. 1974); Tillman v. Wheaton-Haven Rec­
reation Ass’n, supra. Non-profit public interest law firms 
have been recognized as properly entitled to attorneys’ 
fees, Jordan v. Fusari, 496 F.2d 646, 649 (2d Cir. 1974); 
Brandenburger v. Thompson, 494 F.2d 885, 889 (9th Cir. 
1974), and the receipt of such fees promotes their con­
tinued existence and service to the public in this field.

Application of the provision to furnish full recompense 
for the value of services in successful litigation helps as­
sure the continued availability of the services to those 
most in need of assistance in translating the promise of 
the Act into actually functioning voting rights, often grudg­
ingly yielded to minorities by those reluctant to give up

Footnote 2 (continued)
o f the 1964 Civil Eights Act, but not in the same suit brought 
under 42 U.S.C. §1981, which protects similar rights but involves 
fewer technical prerequisites to the filing of an action. Fees are 
allowed in a suit under Title I I  o f the 1964 Act challenging dis­
crimination in a private restaurant, but not in suits under 42 
U.S.C. §1983 redressing violations o f the Federal Constitution or 
laws by officials who are sworn to uphold the laws.

Section 403, like section 402, provides the specific statutory au­
thorization required by the court in AlyesTca. . . .

U.S. Code Cong. & Admin. News (1975) at 807-809 (footnotes omitted).

4436



or dilute political power or to impose on the majority 
necessary expenses of implementation.

Attorneys’ fees are not awarded necessarily to punish 
for bad faith, but to recompense those who by helping to 
protect basic rights are thought to have served the public 
interest. A  principal purpose of the legislation is to en­
courage people to seek judicial redress of unlawful dis­
crimination.

In short, imposition of full attorneys’ fees is a useful 
and needed tool of the court to fully protect plaintiffs’ 
rights as American citizens and voters, and we agree with 
the court’s use of it in this case.

W e find no merit in appellants’ other claims.
Affirmed.