STEPHENSON, Circuit Judge.
Invoking 42 U.S.C. § 1983 and its jurisdictional counterpart, 28 U.S.C. § 1343, welfare recipients challenged a Nebraska regulation on the basis that it conflicted with the Social Security Act and violated the Due Process Clause. The district court
The principal issues on appeal are (1) whether the district court had jurisdiction, and if so, (2) whether the district court's
Plaintiffs were recipients of Aid to Families with Dependent Children (AFDC). Their eligibility for AFDC benefits depended on their financial need, which was determined by a calculation of their income and resources. See generally 42 U.S.C. § 602(a)(7).
In January 1969, the Department of Health, Education and Welfare (HEW) issued a regulation specifying that, in the calculation of income and resources, "only such net income as is actually available for current use on a regular basis will be considered and only currently available resources will be considered." National Welfare Rights Organization v. Mathews, 174 U.S.App.D.C. 410, 420, 533 F.2d 637, 647 (D.C.Cir.1976) (quoting 45 C.F.R. § 233.20(a)(3)(ii)(c) (1974)). The Nebraska State Department of Public Welfare (the department) issued a similar regulation. Under this regulation, only the welfare recipient's equity in his automobile was considered as an available resource.
In March 1975, however, HEW issued a new regulation, which specified that the retail market value of a recipient's automobile, rather than his equity in it, must be considered as an available resource. On October 1, 1975, the department followed HEW's lead and implemented its own retail market value regulation.
As a result of the new regulation, the department revalued the resources attributable to plaintiffs' automobiles and notified them that their benefits would be suspended.
On November 1, 1976, the department rescinded the offending regulation and reverted to valuing automobiles on the basis of the amount of owner's equity. This action mooted plaintiffs' claim for equitable relief but left alive their claim for damages.
In January 1977, the court granted the plaintiffs' motion, under Fed.R.Civ.P. 37(a), to compel production of all departmental documents that recorded communications between the department and HEW concerning the retail market value regulation. The court reserved its ruling on plaintiffs' request for the expenses and attorneys' fees incurred in connection with the motion.
In January 1979, the district court issued its first ruling on the question of damages. The court held that the department's regulation was both statutorily and constitutionally invalid. The statutory holding followed from National Welfare Rights Organization v. Mathews, supra, 533 F.2d at 647, which, in striking down the HEW regulation on which the Nebraska regulation was modeled, held that "availability is required by the statute [42 U.S.C. § 602(a)(7)]" and that it was improper for HEW to contend "that because the property itself is available, gross market value (and not the equity) is available." That contention was "contrary to fiscal realities." Id.
The constitutional holding followed from Vlandis v. Kline, 412 U.S. 441, 452, 93 S.Ct. 2230, 2236, 37 L.Ed.2d 63 (1973), which struck down a state university's policy of subjecting a student to a higher, nonresident tuition rate if he had been living outside the state at the time he applied for admission to college. The Supreme Court held that the Due Process Clause forbade the state university
Id. at 452, 93 S.Ct. at 2236. The district court invoked Vlandis to rule that
Oldham v. Ehrlich, No. 76-L-175, slip op. at 11 (D.Neb. Jan. 29, 1979).
Upon ruling the regulation invalid, the court initially held the defendants liable for compensatory and punitive damages, but subsequently decided that defendants enjoyed official immunity under Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975), because they had basis for a good faith belief in the regulation's validity. The court's final order granted no injunctive or monetary relief but awarded plaintiffs attorneys' fees of $1000 plus costs incurred with respect to plaintiffs' Rule 37 motion to produce. The court noted that "[t]he services rendered [by plaintiffs' attorneys] are actually worth a great deal more" than $1000,
The department contends that the present action, brought under 42 U.S.C. § 1983 with federal jurisdiction asserted under 28 U.S.C. § 1343(3), (4), should have been dismissed under Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979). The Court in Chapman held that, as far as section 1343 is concerned, a federal court's jurisdiction does not encompass actions based solely on conflicts between state welfare regulations and the Social Security Act.
The plaintiffs, acknowledging that their Social Security Act-Supremacy Clause claim did not give the district court jurisdiction, assert that their constitutional claim was substantial. They point out that, given a substantial constitutional claim, the district court could hear their Social Security Act claim as a matter of pendent jurisdiction. E. g., Hagans v. Lavine, 415 U.S. 528, 536, 94 S.Ct. 1372, 1378, 39 L.Ed.2d 577 (1974). See Chapman v. Houston Welfare Rights Organization, supra, 441 U.S. at 618 n.36, 99
The nub of the jurisdictional question, then, is whether plaintiffs asserted a non-frivolous constitutional claim. The district court held their claim was not only non-frivolous but warranted a ruling that the Nebraska regulation was unconstitutional in addition to being contrary to the Social Security Act. When analyzed under the appropriate equal protection standard of "rational basis,"
III. Attorneys' Fees.
Plaintiffs maintain that they, as the prevailing parties in a section 1983 action, were eligible to receive a reasonable attorney's fee under 42 U.S.C. § 1988 (the Civil Rights Attorney's Fees Awards Act of 1976) and that it was improper to award them only a token fee on account of their attorneys' status as employees of legal aid organizations. The department responds that the plaintiffs did not prevail inasmuch as their request for injunctive relief became moot and their request for damages was ultimately denied. The department nevertheless accepts the district court's $1000 award of attorneys' fees as compensation for services performed in relation to plaintiffs' successful motion to produce and as compensation for the expenses incurred by the department's delay in adducing evidence of a good faith belief in the validity of its regulation. The department does not defend the award on the basis that plaintiffs had legal aid attorneys.
The first point to determine is whether plaintiffs prevailed for purposes of section 1988. Although the Nebraska regulation was amended before this case reached a trial on the merits,
Next to decide is whether the court acted within its discretion in reducing the attorneys' fees award because plaintiffs had legal aid attorneys. Although a court may consider a large number of factors in arriving at a reasonable attorney's fee under 42 U.S.C. § 1988, e. g., Zoll v. Eastern Allamakee Community School District, 588 F.2d 246, 252 & n.11 (8th Cir.1978), we conclude it is inappropriate to consider that the prevailing plaintiff's attorney was working for a legal aid organization. The basic purpose of section 1988 — to encourage enforcement and observance of civil rights — permits no distinction between private attorneys and legal aid organizations. Legal aid organizations can expand their services to indigent civil rights complaints by virtue of their receipt of attorneys' fees.
Although we otherwise affirm the district court, we remand for determination of an award of attorneys' fees based upon the appropriate factors.
(references to regulations omitted).
The Weinberger Court declined to extend Vlandis to the social security requirement there in question. Reasoning that such an extension of the irrebuttable presumption doctrine "would turn [the irrebuttable presumption] cases into a virtual engine of destruction for countless legislative judgments," id. at 772, 95 S.Ct. at 2470, the Court ruled generally that governmental rules governing social insurance are valid, notwithstanding some overinclusion or underinclusion, so long as they are rationally based. Id. at 770, 776-77, 95 S.Ct. at 2472.
Weinberger, then, teaches that the appropriate constitutional challenge to a seemingly arbitrary welfare regulation uses the language of equal protection rather than due process. Nevertheless, the irrebuttable presumption doctrine partakes heavily of equal protection doctrine, see, e. g., Note, supra, 87 Harv.L.Rev. at 1548 ("strange hybrid of due process and equal protection scrutiny"). We therefore conclude that although plaintiffs (and the court below) may have chosen an inappropriate mode of constitutional analysis, the plaintiffs' complaint implicitly concerns, not an irrebuttable presumption argument, that we examine for non-frivolousness.
We disagree. Plaintiffs' statutory claim was that the regulation was not authorized by statute; their constitutional claim was that if the regulation were authorized by statute, the statute was unconstitutional. These claims, of course, are similar; otherwise there would be no pendent jurisdiction. United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966) (claims must derive from "common nucleus of operative fact"). But they are not identical.