United States v. Morrison , 272 F.3d 688 ( 2001 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CHRISTY BRZONKALA, 
Plaintiff,
and
UNITED STATES OF AMERICA,
Intervenor-Plaintiff-
Appellee,
v.
ANTONIO J. MORRISON; JAMES
LANDALE CRAWFORD,  No. 00-2437
Defendants-Appellants,
and
VIRGINIA POLYTECHNIC INSTITUTE AND
STATE UNIVERSITY; CORNELL D.
BROWN; WILLIAM E. LANSIDLE, in his
capacity as Comptroller of the
Commonwealth,
Defendants.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Jackson L. Kiser, Senior District Judge.
(CA-95-1358-7)
Argued: September 24, 2001
Decided: December 3, 2001
Before WIDENER, LUTTIG, and MOTZ, Circuit Judges.
2 BRZONKALA v. MORRISON
Affirmed by published opinion. Judge Luttig wrote the opinion, in
which Judge Widener and Judge Motz joined.
COUNSEL
ARGUED: Hans Frank Bader, CENTER FOR INDIVIDUAL
RIGHTS, Washington, D.C., for Appellants. Michael Eugene Robin-
son, Appellate Staff, Civil Division, UNITED STATES DEPART-
MENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF:
Michael E. Rosman, CENTER FOR INDIVIDUAL RIGHTS, Wash-
ington, D.C.; W. David Paxton, GENTRY, LOCKE, RAKES &
MOORE, Roanoke, Virginia; Joseph Graham Painter, Jr., JOSEPH
GRAHAM PAINTER, JR., P.C., Blacksburg, Virginia, for Appel-
lants. Stuart E. Schiffer, Acting Assistant Attorney General, Robert P.
Crouch, Jr., United States Attorney, Michael Jay Singer, Appellate
Staff, Civil Division, UNITED STATES DEPARTMENT OF JUS-
TICE, Washington, D.C., for Appellee.
OPINION
LUTTIG, Circuit Judge:
Antonio J. Morrison and James L. Crawford successfully chal-
lenged the constitutionality of Subtitle C of the Violence Against
Women Act. Morrison and Crawford now seek attorneys’ fees against
the United States pursuant to the Equal Access to Justice Act, 28
U.S.C. § 2412 ("EAJA").
I.
In 1995, Christy Brzonkala filed a complaint in federal district
court against Morrison and Crawford under Subtitle C of the Violence
Against Women Act, 42 U.S.C. § 13981. After Morrison and Craw-
ford moved to dismiss, the United States intervened to defend the
constitutionality of Subtitle C. The Supreme Court ultimately held
that Subtitle C exceeded Congress’ powers under the Commerce
Clause and Section 5 of the Fourteenth Amendment. United States v.
BRZONKALA v. MORRISON 3
Morrison, 529 U.S. 598 (2000). Morrison and Crawford thereafter
sought attorneys’ fees against the United States pursuant to the Equal
Access to Justice Act, 28 U.S.C. § 2412(b). Their request was denied
by the district court. Brzonkala v. Virginia Polytechnic Inst. & State
Univ., 115 F. Supp. 2d 677, 678 (W.D. Va. 2000).
II.
Section 2412(b) of EAJA provides, in relevant part as follows:
Unless expressly prohibited by statute, a court may award
reasonable fees and expenses of attorneys, in addition to the
costs which may be awarded pursuant to subsection (a), to
the prevailing party in any civil action brought by or against
the United States or any agency or any official of the United
States acting in his or her official capacity in any court hav-
ing jurisdiction of such action. The United States shall be
liable for such fees and expenses to the same extent that any
other party would be liable under the common law or under
the terms of any statute which specifically provides for such
an award.
(Emphasis added). Under the so-called American Rule, parties are
generally responsible for their own attorneys’ fees. Alyeska Pipeline
Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247 (1975). However,
under the "common-benefit" doctrine, at common law, and hence,
under EAJA, fees may be imposed on a class of individuals not par-
ticipating in the litigation, that received "a substantial benefit" from
that litigation and would have had to pay the fees had the members
of the class themselves brought the suit. Mills v. Electric Auto-Lite
Co., 396 U.S. 375, 393-94 (1970). Upon application of the common-
benefit doctrine, fees are spread proportionately among the identified
beneficiaries. Id. at 396-97. Traditionally, this doctrine has been
applied in two types of cases: shareholder derivative suits, see, e.g.,
Mills, 396 U.S. at 394-95, and suits by union members against unions,
see, e.g., Hall v. Cole, 412 U.S. 1, 8-9 (1973).*
*The "common-fund" doctrine is related to the common-benefit doc-
trine. It applies, as its name suggests, in cases where an actual common
fund has been created as a consequence of the litigation. See Mills, 396
U.S. at 392-93.
4 BRZONKALA v. MORRISON
In Alyeska, the Supreme Court articulated the requirements that a
"class" must satisfy in order to recover fees under the common-
benefit and common-fund doctrines:
[1] the classes of beneficiaries [must be] small in number
and [2] easily ascertainable. [3] The benefits [must be]
traced with some accuracy, and [4] there [must be] reason
for confidence that the costs [can] indeed be shifted with
some exactitude to those benefitting.
Alyeska, 421 U.S. at 265 n.39. These requirements preclude recovery
of attorneys’ fees by those who "undertake[ ] to enforce statutes
embodying important public values[,]" that is, those acting as private
attorneys general. Id.; see also 10 Moore’s Federal Practice,
§ 54.171[2][c] (3d ed. 1997) (noting that Alyeska "completely under-
mined" the application of the common-benefit doctrine against gov-
ernmental entities).
Upon considering the defendants’ request for attorneys’ fees under
the common-benefit doctrine, the district court held that defendants
failed to show "the required nexus between litigation costs and a defi-
nite, ascertainable class of beneficiaries." Brzonkala, 115 F. Supp. 2d
at 680. In so holding, the court rejected the defendants’ contention
that Brewer v. School Board of the City of Norfolk, 456 F.2d 943 (4th
Cir. 1972), a case involving what we characterized as a "quasi-
application of the ‘common-fund doctrine,’" controlled to permit their
recovery of fees. Brzonkala, 115 F. Supp. 2d at 680. We conclude that
the district court did not abuse its discretion in denying defendants’
motion to compel the United States to pay defendants’ attorneys’ fees.
A.
Morrison and Crawford identify, in their efforts to obtain fees from
the government under the common-benefit doctrine, two different
classes of individuals that allegedly benefitted substantially from the
Supreme Court’s decision in Morrison: first, all United States taxpay-
ers, and, second, all individuals who were spared prosecution as a
result of the Court’s invalidation of VAWA’s Subtitle C. Neither
class satisfies the requirements of Alyeska.
BRZONKALA v. MORRISON 5
As to the class of all taxpayers, such a class simply is not suffi-
ciently "small in number and easily identifiable" to withstand scrutiny
under Alyeska. 421 U.S. at 265 n.39. Permitting all United States tax-
payers to comprise a legitimate class for purposes of the common-
benefit doctrine would be tantamount to the award of fees to one who
acted in the role of private attorney general. See id.; see also Moore’s
Federal Practice, § 54.171[2][c] (explaining that when the alleged
class of beneficiaries under the common-benefit theory is the citi-
zenry at large, the "private attorney general" theory and the
"common-benefit" theory are "indistinguishable"). Unsurprisingly,
several of our sister Circuits have already rejected like claims that the
common-benefit doctrine allows assessment of fees against the United
States when "the general citizenry or taxpayers constitutes the class
of beneficiaries." In re Hill, 775 F.2d 1035, 1041-42 (9th Cir. 1985);
Grace v. Burger, 763 F.2d 457, 459-60 (D.C. Cir. 1985) (affirming
the denial of attorneys’ fees, as against the United States, to a party
who succeeded in obtaining an invalidation of a law on First Amend-
ment grounds).
As to the class of individuals spared liability under Subtitle C as
a result of the Supreme Court’s decision in Morrison (even assuming
it would be possible to identify such persons), imposing fees on the
United States would not "shift [costs] with some exactitude to those
benefitting," as required by Alyeska. 421 U.S. at 265 n.39. All federal
taxpayers would bear the burden of fees, not merely the compara-
tively much smaller class of those who would otherwise have been
prosecuted under Subtitle C.
B.
Defendants attempt to evade Alyeska by relying on our decision in
Brewer. In Brewer, the plaintiffs appealed a district court’s approval
of a school desegregation plan (asserting that the plan failed to pro-
vide free bus transportation to students living beyond walking dis-
tance to their school) and sought attorneys’ fees from the defendant
school board. After agreeing with the plaintiffs on the merits, we
awarded attorneys’ fees under what we termed a "quasi-application of
the ‘common fund’ doctrine." Id. at 951. Concluding that the plain-
tiffs secured "a right of direct pecuniary benefit for all students
assigned to schools within their neighborhood," id. (emphasis omit-
6 BRZONKALA v. MORRISON
ted), we observed that, while we would ordinarily require other stu-
dents to contribute their proportionate share of attorneys’ fees, we
would not do so in that case due to the "exceptional circumstances"
present. Id. at 952.
The case sub judice lacks both features that we emphasized in
Brewer were essential to our decision to assess fees against the school
board. First, in Brewer, as we pointed out, there was the equivalent
of a common fund created by the litigation, which consisted of mon-
eys to be used for student transportation. Id. at 951. Second, the
assessment of fees against the school board was, we concluded, "[t]he
only feasible solution in this peculiar situation," id. at 952, because
an assessment of fees against other students would defeat "the basic
purpose of the relief . . . , which was to secure [free] transportation"
for the students. Id. Even in the face of these circumstances, it is
worth noting, we awarded fees against the school board only reluc-
tantly. Id. at 951. But, in any event, neither of the two circumstances
that prompted our fee award against the governmental entity in
Brewer is present here. And there is simply no reason for a "quasi-
application" of either the common-fund or the common-benefit doc-
trine of the type we indulged in that case. The invocation of Brewer
to assess fees against the United States in this case would represent
a significant extension of Brewer, to say the least.
CONCLUSION
Because defendants have failed to show that assessment of attor-
neys’ fees against the United States will spread the costs of litigation
among a class of beneficiaries that meets the requirements for appli-
cation of the common-benefit or common-fund doctrines as set forth
by the Supreme Court in Alyeska Pipeline Serv. Co. v. Wilderness
Soc’y, the district court did not abuse its discretion in denying defen-
dants’ motion for fees. Accordingly, the judgment of the district court
is affirmed.
AFFIRMED