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FINBERG v. SULLIVAN

April 5, 1982

BEATRICE FINBERG
v.
JOSEPH A. SULLIVAN, et al.



The opinion of the court was delivered by: VANARTSDALEN

 VanARTSDALEN, J.

 A. Introduction

 Plaintiff Beatrice Finberg filed an action in federal court challenging the constitutionality of Pennsylvania's post-judgment garnishment-execution procedures. The complaint asserted a cause of action under 42 U.S.C. § 1983 and named as defendants Sterling Consumer Discount Co. (Sterling), Joseph A. Sullivan, Sheriff of Philadelphia County and Americo V. Cortese, Prothonotary of Philadelphia County. The background of the litigation is recited at length in the opinion of the Court of Appeals of the Third Circuit and need not be recounted here. See Finberg v. Sullivan, 634 F.2d 50 (3d Cir. 1980) (Finberg I). In Finberg I, the court, sitting en banc, held that Pennsylvania's post-judgment garnishment procedures violated the due process clause of the federal constitution by failing to provide a prompt post-seizure hearing at which claims of exemptions could be adjudicated and by failing to provide notice to a judgment debtor of the existence of or the procedures for claiming exemptions under state and federal law. The court also held that the Pennsylvania rules violated the Supremacy Clause because they provided a judgment creditor with a means of circumventing the Social Security Act's exemption of benefits from attachment or garnishment. Finally, the Court of Appeals vacated this court's denial of class certification and remanded the case for consideration of the declaratory judgment claims. *fn1"

 The defendants failed to exercise their right to appeal the decision of the Court of Appeals to the United States Supreme Court. However, the defendants requested that the Court of Appeals stay its mandate in view of the action taken by the Supreme Court of Pennsylvania in promulgating amended rules to bring the state's post-judgment garnishment procedures into compliance with the constitutional requirements of due process as enunciated by the Court of Appeals. The Court of Appeals ruled that only after this court had decided the class certification issue could it be determined whether the amended Pennsylvania rules adequately safeguarded the due process rights of all parties to the controversy. Finberg v. Sullivan, 658 F.2d 93, 98 (3d Cir. 1980) (Finberg II). By order of this court of September 22, 1981, a class was certified and final declaratory judgment was entered in favor of the plaintiff class. Finberg v. Sullivan, No. 77-4166 (E.D. Pa. Sept. 22, 1981). Presently before the court is the plaintiff's motion for the award of attorneys' fees and costs pursuant to 42 U.S.C. § 1988.

 B. Award of Attorneys' Fees Against The Sheriff and Prothonotary.

 The Civil Rights Attorney's Fees Awards Act of 1976 provides, in part, that "the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs." 42 U.S.C. § 1988. The test of whether a person is a prevailing party is whether such party "essentially succeeds in obtaining the relief he seeks in his claims on the merits." Morrison v. Ayoob, 627 F.2d 669, 671 (3d Cir. 1980), cert. denied, 449 U.S. 1102, 66 L. Ed. 2d 828, 101 S. Ct. 898 (1981), quoting Bagby v. Beal, 606 F.2d 411, 415 (3d Cir. 1979). Attorney's fees may be awarded to a prevailing party in any § 1983 action, Maine v. Thiboutot, 448 U.S. 1, 9, 65 L. Ed. 2d 555, 100 S. Ct. 2502 (1980), and ordinarily prevailing plaintiffs should recover attorney's fees unless special circumstances would make such an award unjust. Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 19 L. Ed. 2d 1263, 88 S. Ct. 964 (1968); S. REP. NO. 94-1011, 94th Cong., 2d Sess. 4, reprinted in [1976] U.S. CODE CONG. & AD. NEWS 5908, 5912. The "special circumstances" exception is an extremely limited one, and is applied only in unusual cases. Knights of the Ku Klux Klan v. East Baton Rouge Parish School Board, 643 F.2d 1034, 1041 (5th Cir. Unit A), vacated and remanded, 454 U.S. 1075, 102 S. Ct. 626, 70 L. Ed. 2d 609 (1981). Moreover, the burden of proof of such special circumstances is on the party contesting the award of attorney's fees. Williams v. Miller, 620 F.2d 199, 202 (8th Cir. 1980); Mid-Hudson Legal Services, Inc. v. G & U, Inc., 578 F.2d 34, 38 (2d Cir. 1978).

 In this action, there is no contention that the plaintiff is not a prevailing party within the ambit of 42 U.S.C. § 1988. As a result of the decisions of the Court of Appeals in Finberg I and Finberg II, a plaintiff class was certified and a declaratory judgment was entered in favor of the plaintiff class and against the defendants. However, both the sheriff and the prothonotary argue that special circumstances exist which would render the award of attorney's fees against them unjust. First, the defendants contend that they were performing ministerial acts in compliance with the then existing Pennsylvania Rules of Civil Procedure. Second, the defendants argue that neither the sheriff nor the prothonotary had the authority to change the challenged rules. Additionally it has been suggested that Sterling Consumer Discount Co. and the state, through the Office of the Court Administrator are the parties against whom attorney's fees, if any, should be assessed.

 That the sheriff and the prothonotary were performing ministerial acts and had no authority to change the challenged rules does not compel a finding that the award of attorney's fees against these parties would be unjust. In Hutto v. Finney, 437 U.S. 678, 693-700, 98 S. Ct. 2565, 57 L. Ed. 2d 522 (1978), the Supreme Court ruled that the eleventh amendment did not bar recovery of attorney's fees from state officers acting in their official capacities. The Court recognized that persons acting in their official capacity may be held accountable for actions performed in such capacity. As a result, courts have rejected the contention that "mere functionaries," sued in their official capacities, and persons merely performing their duty by enforcing a controlling statute, are immune from liability for attorney's fees. See International Oceanic Enterprises, Inc. v. Menton, 614 F.2d 502, 503-04 (5th Cir. 1980); Johnson v. Mississippi, 606 F.2d 635, 637 (5th Cir. 1979). Moreover, to the extent that the defendants' argument can be interpreted to mean that they acted in good faith, in accordance with the then applicable rules of procedure, numerous courts have ruled that good faith by itself is not a special circumstance which would warrant the denial of attorney's fees. See Teitelbaum v. Sorenson, 648 F.2d 1248, 1250-51 & n.1 (9th Cir. 1981) (and cases cited therein); Love v. City of Cheyenne, 620 F.2d 235, 236-37 (10th Cir. 1980); Menton, supra, 614 F.2d at 504.

  The defendants principally rely upon Supreme Court of Virginia v. Consumers Union of the United States, Inc., 446 U.S. 719, 64 L. Ed. 2d 641, 100 S. Ct. 1967 (1980), in which the Supreme Court held that attorney's fees should not have been assessed against the Supreme Court of Virginia and its chief justice in his official capacity "for the reasons relied upon by the District Court." Id. at 738. The district court had ruled that it would not be unjust to order the Supreme Court of Virginia defendants to pay the plaintiffs' reasonable attorney's fees in light of their continued failure and apparent refusal to amend the challenged code to conform with constitutional requirements. The Supreme Court stated that "although the Virginia Court and its chief justice were subject to suit in their direct enforcement role, they were 'immune' in their legislative roles." Id. (emphasis added). The court stated that there was nothing in the legislative history of the Attorney's Fees Act to suggest that Congress intended to permit an award of attorney's fees to be premised on acts for which defendants would enjoy absolute legislative immunity.

 The district court had also considered it unjust to award attorney's fees against the State Bar defendants since they had recommended amendments to the State Bar Code which the Virginia Court declined or failed to adopt. In this regard, the Supreme Court stated:

 
We are not convinced that it would be unfair to award fees against the State Bar, which by statute is designated as an administrative agency to help enforce the State Bar Code. Fee awards against enforcement officials are run-of-the-mill occurrences, even though, on occasion, had a state legislature acted or reacted in a different or more timely manner, there would have been no need for a lawsuit or for an injunction. Nor would we disagree had the District Court awarded fees not only against the Bar but also against the Virginia Court because of its own direct enforcement role.

 Id. at 739. It is apparent, therefore, that attorney's fees may be awarded against enforcement officials, notwithstanding the fact that such officials are merely complying with state or local laws.

 The prothonotary and the sheriff in this case were clearly charged with specific duties in the enforcement of the post-judgment garnishment procedures, despite their contentions that they were merely performing ministerial functions. Their actions were the immediate cause of the attachment and freezing of Mrs. Finberg's bank account. Since the rules by which the prothonotary and the sheriff based their actions were found to be unconstitutional, it was their enforcement of these rules which caused the injury to Mrs. Finberg's legal rights. As recognized by the Supreme Court, fee awards against enforcement officials are "run-of-the-mill ...


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