1471 March 1973] THE PRIVATE ATTORNEY GENERAL 749 that bad faith might be attributed to the defendant's "submissions of obviously unacceptable" reapportionment plans. The court, however, chose to base its award of fees "on far broader considerations of equity." Specifically, it looked to the precedents of Piggie Park, Mills, Lee and Bradley, and rendered the following rule: 64 If, pursuant to this action, plaintiffs have benefited their class and In applying these criteria to the case before it the court was fully satisfied that the plaintiffs had indeed functioned as private attorneys general. No other right is more basic to the integrity of our democractic so- Besides these considerations, the court also pointed out that courts should encourage this particular type of private litigation since the expenses are great and the chances of a substantial damage award are minimal. "Consequently," the court concluded, “in order to attempt to eliminate these impediments to pro bono publico litigation, such as is here involved, and to carry out congressional policy, an award of attorneys' fees is essential."67 Sims' chief significance is found in the new formulation which it gives to the private attorney general doctrine. Choosing not to rely on any single precedent, the court apparently tried to coalesce the private attorney general concept of Piggie Park and the benefit language found in Mills. The conceptual success of the resulting hybrid formulation would seem to be open to considerable doubt. Requiring a showing of both statutory vindication and a class wide benefit, would seem to entail a largely redundant demonstration. That is, in most cases the act of vindicating congressional policy will ipso facto confer a benefit upon plaintiff's class. In Sims, for example, vindication and benefit both inhere in the single act of achieving equal apportionment. 64. The court's reliance upon these cases was express: "The present case clearly falls among those meant to be encouraged under the principles articulated in Piggie Park Enterprises, Inc. and Mills, and expanded upon in Southern Home Sites and Bradley." Id. at 694. 65. Id. 66. Id. 67. Id. at 695. 1472 750 THE HASTINGS LAW JOURNAL [Vol. 24 Beyond this conceptual awkwardness, however, the absolute requirement that there be a class benefit, in addition to the general vindication of congressional policy, would seem to be an unnecessary restriction on the Piggie Park rationale. There the Supreme Court determined that awarding attorneys fees might be premised solely on the ground that it was in the public interest to encourage the enforcement of certain federal laws. No additional requirement that plaintiffs benefit a particular class of individuals was deemed necessary. The Sims formula, then, would seem to append a superfluous and unwarranted prerequisite to the Piggie Park test. Exactly one week after Sims was decided a court from the same judicial district again used the private attorney general doctrine to award counsel fees to the prevailing plaintiff. In NAACP v. Allen, petitioners brought a class action alleging that the Alabama Departments of Public Safety and Personnel had followed "a continuous and pervasive pattern and practice of excluding Negroes from employment in the Department of Public Safety." After finding for plaintiffs, the court ordered inter alia that the defendants employ one black trooper for every white trooper hired until approximately one-quarter of the Alabama state troopers were black. In addition to this relief, the court, in a supplemental order dated March 24, 1972, also taxed the cost of plaintiffs' attorneys against the defendants.70 The justification of this award followed very closely the pattern which had been set in Sims. Here, as in that case, the court first stated that the fees could be shifted on the basis of defendants' "unreasonable and obdurate conduct"; but again it chose to base its holding on the broader foundation of the private attorney general doctrine. The court also used essentially the same formulation of the doctrine that had been used in Sims. Thus, it looked for, and found, both a benefit to plaintiff's class-i.e., increased employment opportunities and relief from the "badge of opprobrium which necessarily attaches to a group excluded" from particular types of employment on the basis of race—and the vindication of "strong" federal rights-namely, "the enforcement and protection of the right of equal job opportunities." Finally, the court again sought to emphasize the need to positively encourage such suits by pointing to their generally unremunerative nature and their potential for subjecting plaintiffs' counsel to "social, politial and community" ostracism. Allen thus constitutes a virtual duplication of the Sims March 1973] THE PRIVATE ATTORNEY GENERAL 751 rationale. It reaches an admirable result, but again it does so on the basis of a redundant and unnecessarily restrictive statement of the private attorney general test. The third decision to apply the private attorney general concept was Wyatt v. Strickney. In that case, an action was brought on behalf of residents of the Partlow State School and Hospital for the mentally retarded. Petitioners contended that the defendant hospital was being operated in a manner which deprived the residents of their right to have rehabilitative training and care which met minimum constitutional standards. The court sustained plaintiffs' allegations and in a long and detailed appendix to its holding delineated the minimum standards of care and training which were to be afforded at the Partlow facility. Then, in an opinion attached at the end of the appendix, the court considered the question of attorneys' fees. Chief Judge Johnson, who had also written the Allen decision, began by holding that the evidence adduced at trial indicated sufficient bad faith on the part of defendants to justify an award of fees to the plaintiffs. Nonetheless, as in both Sims and Allen, the court went on to find its primary fee shifting rationale in the realm of more expansive policy considerations. Interestingly, in explicating the specific policy factors which purportedly justified awarding fees to the plaintiffs, Judge Johnson did not revert back to the hybrid tests of Sims and Allen. Instead he chose to break new ground by proceeding upon what he termed "a kind of benefit theory." He explained: Plaintiffs bringing suits to enforce a strong national policy often This formulation of the rule marked two significant departures from the test used in Allen and Sims. The first of these was an expansion of the court's inquiry into the benefits allegedly conferred by plaintiffs' action. In Sims and Allen the court had confined its examination to those benefits received by the class of persons actually involved in the litigation; in Wyatt, on the other hand, the inquiry was broadened to include a review of all societal benefits resulting from the 73. 344 F. Supp. 387 (M.D. Ala. 1972). This action resulted from the expansion of an earlier suit of the same name which had been brought to upgrade the standards of care and rehabilitative training available at an Alabama mental hospital. See Wyatt v. Strickney, 344 F. Supp. 373 (M.D. Ala. 1972). 74. 344 F. Supp. at 409. 1474 752 THE HASTINGS LAW JOURNAL [Vol. 24 action. This shift in approach is particularly evident in the court's discussion of the specific benefits flowing from plaintiffs' suit: By successfully prosecuting this suit, plaintiffs have benefitted not only the present residents of Bryce, Partlow and Searcy but also everyone who will be confined to these institutions in the future. Veritably, it is no overstatement to assert that all of Alabama's citizens have profited and will continue to profit from this litigation. So prevalent are mental disorders in our society that no family is immune from their perilous incursion. Consequently, the availability of institutions capable of dealing successfully with such disorders is essential and, of course, in the best interest of all Alabamians.75 Secondly, in focusing exclusively upon the general societal benefits of plaintiffs' action, Wyatt also stands for a movement away from the strict requirement of vindicating congressional policy per se. That is, the invocation of a federal statute which is supported by a "strong" congressional policy would not appear to be necessary under the court's rationale since the Wyatt suit apparently was predicated solely upon the due process guarantees of the Constitution. Thus, Wyatt would seem to reduce the determinative criterion for fee shifting under the private attorney general doctrine to that of merely having provided a substantial benefit to a broad section of the public.76 One final feature of Wyatt also should be noted. In concluding its discussion of the "kind of benefit" theory, the court invoked the unjust enrichment reasoning of the common fund cases: [T]he expenses. . . incurred in vindicating the public good were Although the court failed to indicate the extent to which it relied upon this unjust enrichment argument, this rationale would seem to be intended as mere auxiliary support for the court's primary encouragement-of-public-interest-litigation rationale. This conclusion is sup ported by the fact that the court cited as authority Lee's where, as indicated above, attorneys' fees were assessed against a private party defendant, so that there was no possible pretext of taxing the beneficiaries 75. Id. 76. Seemingly, under such an approach the enforcement of a statute embodying a strong public policy would constitute but one of many possible avenues to achieving the broad public benefit necessary to shift fees. For a further discussion of the advisability of such an approach see text accompanying notes 93-99 infra. 77. 344 F. Supp. at 409. Since a state agency was the defendant in this action, and also the primary beneficiary of the suit, the state would have paid plaintiffs' attorneys' costs regardless of which fee shifting rational the court ultimately used. 78. 444 F.2d 143 (5th Cir. 1971). 1475 March 1973] THE PRIVATE ATTORNEY GENERAL 753 for the costs of the suit. Looking to the court's primary rationale, then, Wyatt clearly would seem to offer a simplified, all purpose approach to the "private attorney general" doctrine. Another case which quite recently has considered the new fee shifting doctrine is La Raza Unida v. Volpe.79 In this action, decided October 19, 1972, plaintiffs sued to recover litigation expenses incurred in an earlier action against the same defendants. In the prior case80 plaintiffs had brought a class action against, among others, the California Department of Highways for failing to comply with certain federal statutes in its pursuance of California Highway Project 238. Specifically, plaintiffs had alleged that the defendants failed to file with the Secretary of Transportation a statement relating to the environmental impact of the highway project as required by various regulations issued pursuant to section 4(f) of the 1966 Department of Transportation Act,81 and, further, that the state had violated various provisions of another federal statutes by not having established an adequate relocation assistance program for persons who would be displaced by the project. Plaintiffs prevailed on the merits, and the court enjoined further land acquisition and resident removal in conjunction with the highway project until defendants had complied with the statutory requirements. In the subsequent action for attorneys' fees, Judge Peckham, after concluding that neither the obdurate behavior rule nor the common fund exception provided an appropriate rationale for shifting fees, turned to the private attorney general concept. Citing Lee, Allen and Sims as general authority, Judge Peckham articulated his version of the rule as follows: [W]henever there is nothing in a statutory scheme which might be Applying these criteria to the actual facts of the case, Judge Peckham first determined that a strong congressional policy had indeed been effectuated. He asserted that "[t]he Court could cite numerous judicial and legislative utterances that dramatically portray the strength of these public policies," and, to illustrate, he provided three examples. 79. La Raza Unida v. Volpe, Civ. No. C-71-1166 RFP (N.D. Cal. Oct. 19, 1972). 80. La Raza Unida v. Volpe, 337 F. Supp. 221 (N.D. Cal. 1971). 81. 49 U.S.C. § 1653 (f) (1970). 82. 83. 23 U.S.C. § 501 (1970). La Raza Unida v. Volpe, Civ. No. C-71-1166 RFP at 6 (N.D. Cal. Oct. 19, 84. Id. at 7. |