The opinion of the court was delivered by: LORD, III
Plaintiffs are residents, businessmen and representatives of private civic organizations in the East Poplar Urban Renewal Area of Philadelphia. The United States Department of Housing and Urban Development and certain individual officers thereof are named as defendants. Plaintiffs' complaint sought an injunction "against the issuance of a contract of insurance or guaranty, and against the execution or performance of a contract for rent supplement payments, for Fairmount Manor, an apartment project which, when the complaint was filed, was about to be constructed in the East Poplar Urban Renewal Area." 436 F.2d 809, 811 (3d Cir. 1970).
Plaintiffs alleged that the administrative decisions regarding the location and type of housing to be constructed had been made in violation of a number of federal statutes. For present purposes the only relevant statute is Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3601 et seq. (1970), as amended, (Supp. IV, 1974).
Jurisdiction was based on 28 U.S.C. § 1331 (federal question); 28 U.S.C. § 1343 (civil rights); and 28 U.S.C. § 1361 (mandamus of federal officers).
Plaintiffs asserted, inter alia, that the defendants had not complied with the mandate of section 808(d)(5) of Title VIII, 42 U.S.C. § 3608(d)(5), which in order to further the declared policy of fair housing throughout the United States provides:
"(d) The Secretary of Housing and Urban Development shall --
(5) administer the programs and activities relating to housing and urban development in a manner affirmatively to further the policies of this subchapter."
Fairmount Manor was constructed during the pendency of this litigation. However, the parties entered into a settlement, and, accordingly, we entered judgment for plaintiffs in May 1975.
The two hurdles which plaintiffs face in seeking an award of attorney fees are the recent Supreme Court opinion in Alyeska Pipeline Service Co. v. The Wilderness Society, 421 U.S. 240, 44 L. Ed. 2d 141, 95 S. Ct. 1612 (1975) and the statutory command of 28 U.S.C. § 2412 (1970). In Alyeska, the Court held that absent certain exceptions not relevant here
a party may not be awarded counsel fees without specific statutory authorization. Similarly, 28 U.S.C. § 2412
codifies the common law rule that attorney fees may not be awarded against the United States absent express legislative authorization. Alyeska, supra, at 269; Pyramid Lake Paiute Tribe of Indians v. Morton, 163 U.S. App. D.C. 90, 499 F.2d 1095, 1096 (1974), cert. denied, 420 U.S. 962, 43 L. Ed. 2d 439, 95 S. Ct. 1351 (1975); see United States v. Chemical Foundation, Inc., 272 U.S. 1, 20, 71 L. Ed. 131, 47 S. Ct. 1 (1926).
Plaintiffs contend that the necessary statutory authorization for the award of attorney fees is present in section 812(c) of the Act, 42 U.S.C. § 3612, which states: "The court may grant as relief * * * reasonable attorney fees in the case of a prevailing plaintiff * * *." The problem with this argument is that section 812 only applies, by its own terms, to suits commenced for violations of sections 804-06, 42 U.S.C. §§ 3604-06. These sections are the substantive provisions of Title VIII and they prohibit discrimination in the sale or rental of housing,
in the financing of housing,
and in the provision of brokerage services for the sale or rental of housing.
Section 808, the provision relied upon by plaintiffs, merely gives the Secretary of HUD certain administrative duties. The Court of Appeals in its previous opinion also recognized this distinction, 436 F.2d at 820:
"Those sections [810-13, 42 U.S.C. §§ 3610-13] of the 1968 Act establish a complaint and enforcement procedure for the redress of discriminatory housing practices prohibited by §§ 804, 805 and 806 of the Act, 42 U.S.C. §§ 3604, 3605, 3606. The complaint and enforcement procedures do not pertain to the Secretary's affirmative duties under § 808(d) (5) of the 1968 Act, 42 U.S.C. § 3608(d) (5) * * *."
Thus it is clear that, on its face, section 812(c) does not authorize an award of counsel fees for suits based on section 808 of the 1968 Act. Nor do we think that a "liberal construction" of the statute supports an opposite result. Compare Natural Resources Defense Council, Inc. v. EPA, 484 F.2d 1331 (1st Cir. 1973) with Natural Resources Defense Council, Inc. v. EPA, 168 U.S. App. D.C. 111, 512 F.2d 1351 (1975). In other statutes when Congress wished to allow the recovery of attorney fees against the federal government, the will of Congress was made quite clear.
The pre- Alyeska cases which plaintiffs cite
in their brief are not inconsistent with the conclusion that a "liberal construction" does not support an award of counsel fees here. For example, the Supreme Court decision that attorney fees may be awarded for suits pursuant to section 102 of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 412 (1970), was based on the "common fund" doctrine,
not on a liberal construction of section 102.