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Thorstenn v. Barnard

filed: August 21, 1989.

SUSAN ESPOSITO THORSTENN AND LLOYD DE VOS, APPELLANTS
v.
GEOFFREY W. BARNARD, IN HIS CAPACITY AS CHAIRMAN OF THE COMMITTEE OF BAR EXAMINERS OF THE VIRGIN ISLANDS BAR, AND NOT PERSONALLY AND VIRGIN ISLANDS BAR ASSOCIATION, DEFENDANT-INTERVENOR



Seitz,*fn* Higginbotham and Rosenn, Circuit Judges.

Author: Seitz

SEITZ, Circuit Judge.

We have before us plaintiffs' [appellants] motion for a joint and several award of attorneys' fees and costs against the Chairman of the Board of Bar Examiners of the Virgin Islands (the "Chairman") in his official capacity and against the Virgin Islands Bar Association (the "Association") for legal services in the district court, the court of appeals and the Supreme Court. The motion is based on the decision of the Supreme Court of the United States in Barnard v. Thorstenn, 489 U.S. 546, 109 S. Ct. 1294, 103 L. Ed. 2d 559 (1989). The Court held in the two underlying actions that the residency requirement of Rule 56(b) of the Rules of the District Court of the Virgin Islands violates the Privileges and Immunities Clause of Article IV, § 2 of the Constitution as extended to the Virgin Islands by the Revised Organic Act, 48 U.S.C. § 1561. Only injunctive relief was sought and obtained. Since plaintiffs asserted a violation of a federal statute, viz., the Organic Act, the claims if brought in a United States District Court would have been cognizable under 28 U.S.C. § 1331. Subject matter jurisdiction in the district court for the Virgin Islands, therefore, existed pursuant to Section 22 of the Revised Organic Act of 1954, 48 U.S.C. § 1612, and Title 4 V.I.C. § 32.

I

In addressing the fee applications, we are met at the outset with the argument of both the Chairman and the Association that because plaintiffs did not cite 42 U.S.C. § 1983 in their complaints in the district court as the basis for relief, they may not rely on § 1988 (allowing fees in § 1983 actions) as the basis for their requests here. We think the Chairman and the Association have confused the basis for plaintiffs' claim with the appropriate remedy. The complaints clearly assert statutory claims based on violations of a federal statute, i.e. 48 U.S.C. § 1561. Neither the Chairman nor the Association suggest otherwise. Section 1983 provides the remedy in such a case. Maher v. Gagne, 448 U.S. 122, 129 n. 11, 65 L. Ed. 2d 653, 100 S. Ct. 2570 (1980). So viewed Fed.R.Civ.P. 54(c) controls:

Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party's pleadings.

Thus, the plaintiffs were entitled to invoke § 1983 as the basis for the injunctive relief granted once the violation was found. This result, in turn, triggered the applicability of § 1988.

The Chairman and the Association, nevertheless, argue that Virgin Islands Code § 541 controls the allowance of attorneys' fees and, in consequence, the present motion should have been filed in the district court. It is not clear to us whether this argument is premised solely on the rejected contention that § 1983 is inapplicable here. Assuming that the argument is independently based, we will address it.

What we must determine, at the outset, is whether § 541 even applies to the allowance of attorneys' fees in the district court of the Virgin Islands if a federal claim is asserted. We think the answer is that it does not. We agree with the analysis of the district court in Ocean Barge Transport v. Hess Oil Virgin Islands, 598 F. Supp. 45 (D.V.I. 1984) aff'd, 760 F.2d 257 (1985) and in Virgin Islands Bar Association v. Gov't of the Virgin Islands, 661 F. Supp. 501, 503 (D.V.I. 1987), aff'd in part and vacated in part, 857 F.2d 163 (3d Cir. 1988), that § 541 is inapplicable to requests for fees based on federal claims. If additional support for our conclusion were needed, we note that § 541 of the Virgin Islands statute and § 1988 are not coextensive in application. A prevailing defendant may generally receive fees under § 541. In contrast, such a defendant may only recover under § 1988 if plaintiffs' claim is frivolous, unreasonable or groundless. See Roadway Express Inc. v. Piper, 447 U.S. 752, 762, 65 L. Ed. 2d 488, 100 S. Ct. 2455 (1980).

II

We next address the Association's argument that the Association, even though a losing intervenor, cannot be assessed with attorneys' fees under 42 U.S.C. § 1988. The problem arises because the Association, while not joined as a defendant, was granted permissive intervention to resist plaintiffs' claims.

In resisting the fee application, the Association relies on Independent Federation of Flight Attendants v. Zipes, 491 U.S. 754, 57 U.S.L.W. 4872, 105 L. Ed. 2d 639, 109 S. Ct. 2732 (U.S. 1989). The fee application there involved was based on Section 706(k) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k), which provides in pertinent part: "A court, in its discretion, may allow the prevailing party . . ., a reasonable attorney's fee as part of the costs." The Court concluded "that district courts should . . . award Title VII attorney's fees against losing intervenors only where the intervenors' action was frivolous, unreasonable, or without foundation." Independent Federation of Flight Attendants v. Zipes, 57 U.S.L.W. at 4874.

Since we are concerned with a fee application under 42 U.S.C. § 1988, Footnote 2 in the les opinion is pertinent:

"The language of § 706(k) is substantially the same as § 204(b) of the Civil Rights Act of 1964, 42 U.S.C. § 2000a-3(b), which we interpreted in Newman v. Piggie Park Enterprises. Inc., 390 U.S. 400, 19 L. Ed. 2d 1263, 88 S. Ct. 964 (1968), and 42 U.S.C. § 1988, which we interpreted in Hensley v. Eckerhart, 461 U.S. 424, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983). We have stated in the past that fee-shifting statutes' similar language is "a strong indication" that they are to be interpreted alike. Northcross v. Memphis Bd. of Education, 412 U.S. 427, 428, 37 L. Ed. 2d 48, 93 S. Ct. 2201 (1973). See also Hanrahan v. Hampton, 446 U.S. 754, 758 n. 4, 64 L. Ed. 2d 670, 100 S. Ct. 1987 (1980) (noting that § 1988 was patterned on § ...


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