David FOSTER and Catherine Foster, Plaintiffs-Appellants, v. Sigmund BARILOW and Margaret Barilow, Defendants-Appellees.
No. 92-4034
United States Court of Appeals, Sixth Circuit.
Argued Aug. 10, 1993. Decided Oct. 1, 1993.
6 F.3d 405
Petitioner‘s reliance on United States v. Wulff, 758 F.2d 1121 (6th Cir. 1985), is misplaced. In Wulff we stated:
We are of the opinion that in order for one to be convicted of a felony under the MBTA [Migratory Bird Treaty Act], a crime unknown to the common law which carries a substantial penalty, Congress must require the prosecution to prove the defendant acted with some degree of scienter. Otherwise, a person acting with a completely innocent state of mind could be subjected to a severe penalty and grave damage to his reputation.
Id. at 1125 (emphasis added). Wulff obviously falls into the class of cases like Lambert, in which the defendant has no warning that his acts might be illegal. By contrast, petitioner in the present case is charged with knowledge of the traffic safety laws.
Petitioner‘s reliance on United States v. Renner, 496 F.2d 922 (6th Cir. 1974), is also misplaced. Renner has been described as a “narrow holding,” United States v. Holloway, 744 F.2d 527, 530 (6th Cir. 1984), and has been limited to its facts. United States v. Barrett, 504 F.2d 629, 634 (6th Cir. 1974), aff‘d, 423 U.S. 212, 96 S. Ct. 498, 46 L. Ed. 2d 450 (1976). Renner involved a federal prosecution for receiving firearms while under indictment. The defendant set up the defense that he did not know he was under indictment at the time of his receipt of the firearms. The unusual facts in Renner, where defendant was possibly misled by the apparent dismissal of an indictment against him, are nothing like the facts in this case.
Finally, the trial court properly instructed the jury that petitioner could be convicted only if the evidence showed beyond a reasonable doubt that petitioner “caused the death of Raymond J. Pack as a proximate result of committing one or more of the following traffic offenses: One, Speeding, two, Reckless Operation, three, Operating a Motor Vehicle without Reasonable Control and four, a violation of Section 4511.31 of the Ohio Law entitled Hazardous Zones.” J.A. 300-01. Because the crime of involuntary manslaughter is a crime of transferred intent under Ohio law, Losey, 491 N.E.2d at 384, the jury needed only to find that petitioner‘s commission of one or more of the underlying misdemeanors caused the victim‘s death. Petitioner does not contend that the trial court erred in defining any of the misdemeanors, and the jury was, therefore, properly instructed on the mental element required for conviction under Ohio‘s involuntary manslaughter statute.
III.
For the reasons stated, the judgment of the district court dismissing petitioner‘s petition for a writ of habeas corpus is AFFIRMED.
Sheldon Stein, Avery S. Friedman (argued and briefed), Friedman & Associates, Cleveland, OH, for plaintiffs-appellants.
Donald C. Price, R. Jack Clapp (argued and briefed), R. Jack Clapp & Associates, Cleveland, OH, for defendants-appellees.
Before: BOGGS and SILER, Circuit Judges, and JOINER, Senior District Judge.*
Plaintiffs David and Catherine Foster appeal the district court‘s decision to grant attorney‘s fees to the prevailing defendants, Sigmund and Margaret Barilow, in an action arising under the Fair Housing Act,
I
David and Catherine Foster sued their landlord and his wife, Sigmund and Margaret Barilow, alleging, among other civil rights claims, housing discrimination under the Fair Housing Act,
On May 14, 1992, after a four-day trial, the district court granted a directed verdict for Margaret Barilow, and the jury returned a verdict in favor of Sigmund Barilow. On
The Fosters’ deadline, however, came and went without a response from them. The district court examined the Barilows’ application sua sponte, and on August 31, 1992, awarded the Barilows $22,513.65 in attorney‘s fees and costs. The Fosters never contested in any way in the district court the propriety of granting attorney‘s fees. Instead, they filed this timely appeal.
II
The Fosters’ sole contention on appeal is that, under the Fair Housing Act Amendments,
A
In general, “[t]issues not presented to the district court but raised for the first time on appeal are not properly before the court.” J.C. Wyckoff & Associates, Inc. v. Standard Fire Ins. Co., 936 F.2d 1474, 1488 (6th Cir. 1991). We have, on occasion, deviated from the general rule in “‘exceptional cases or particular circumstances’ or when the rule would produce ‘a plain miscarriage of justice.‘” Pinney Dock and Transport Co. v. Penn Central Corp., 838 F.2d 1445, 1461 (6th Cir.), cert. denied, 488 U.S. 880, 109 S. Ct. 196, 102 L. Ed. 2d 166 (1988) (citation omitted) (quoting Hormel v. Helvering, 312 U.S. 552, 557, 558, 61 S. Ct. 719, 721, 722, 85 L. Ed. 1037 (1941)). See Singleton v. Wulff, 428 U.S. 106, 121, 96 S. Ct. 2868, 2877, 49 L. Ed. 2d 826 (1976).
The exceptions to the general rule are narrow. For example, we stated in Pinney Dock that we may reach an issue if it “is presented with sufficient clarity and completeness” for the court to resolve the issue. Pinney Dock, 838 F.2d at 1461. The Pinney Dock exception is most commonly applied where the issue is one of law, and further development of the record is unnecessary. See, e.g., In re Allied Supermarkets, Inc., 951 F.2d 718 (6th Cir. 1991). The rationale for this exception is to promote finality in the litigation process. Pinney Dock, 838 F.2d at 1461.
The Fosters’ case does not fall within the Pinney Dock exception. First, the issue was not developed with “sufficient clarity and completeness” in the district court, because the Fosters failed to respond in any way to the Barilows’ motion for attorney‘s fees. Second, even if the issue of the frivolousness of the Fosters’ suit were purely one of law, further development of the record would be necessary. Although the Fosters contend in their appellate brief that “[n]othing in the record shows that the [Fair Housing claim] was pursued for any reason other than good faith,” this claim is only slender support for their case. The absence of any indication of bad faith in a record in which that issue was never contested is qualitatively different from an affirmative finding of good faith in a record in which the issue was fully aired.
This is particularly true in a case like the Fosters‘. The Barilows based their application for attorney‘s fees primarily on the bare language of
Finally, a finding in favor of the Fosters would not serve the Pinney Dock policy of preventing further litigation: a ruling in favor of the Fosters would require further litigation in the district court on the frivolousness issue. Since the Fosters’ appeal does not fit within the Pinney Dock exception, we do not reach the issue of the propriety of awarding attorney‘s fees on this record, and we do not express any opinion as to whether the Fosters’ claim was frivolous, groundless, or unreasonable.
B
This court is not compelled to hear, nor should it hear, an issue not presented to the district court unless reaching that issue serves an over-arching purpose beyond that of arriving at the correct result in an individual case. See Turner v. Bowen, 830 F.2d 1003, 1008 (9th Cir. 1987), cert. denied, 488 U.S. 818, 109 S. Ct. 59, 102 L. Ed. 2d 37 (1988). Such an over-arching purpose may exist where the state of the law is uncertain. Roosevelt v. E.I. DuPont de Nemours & Co., 958 F.2d 416, 419 n. 5 (D.C. Cir. 1992).
The Fosters contend that this is such a case. They argue that the district court believes that the language of the Fair Housing amendments should create an equal risk of liability for attorney‘s fees whether the defendant or plaintiff is the party that loses a fair housing suit. The Fosters suggest that this “equal risk” policy has a chilling effect on private plaintiffs who are, in reality, the primary enforcers of the Fair Housing Act. See Traficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 211, 93 S. Ct. 364, 367, 34 L. Ed. 2d 415 (1972); Price v. Pelka, 690 F.2d 98, 101 (6th Cir. 1982).
The Fosters’ argument appears to bring their appeal within the rubric of the “overarching purpose” exception. The thrust of the Fosters’ arguments is that, since we have never construed the meaning of “prevailing party” in the Fair Housing Act, the state of the law is uncertain and should be settled here and now. While recognizing the importance of the interpretation of the fee-shifting provisions in the Fair Housing Act, we do not think that there is much uncertainty in the state of the law on this issue.
When Congress amended the Fair Housing Act in 1988, it adopted language that parallels the attorney‘s fee provisions in the 1964 Civil Rights Act3 and in
These facts incline us to believe that the state of the law on the issue of attorney‘s fees in Fair Housing cases is reasonably certain. Although we have not had an opportunity to address this issue, we believe that the result is sufficiently foreshadowed by Congress‘s directive coupled with the United States Supreme Court‘s decision in Hughes v. Rowe, supra.5 Consequently, the Fosters’ case is not within the exception discussed above.
III
For the foregoing reasons, we AFFIRM the district court‘s award of attorney‘s fees.
JOINER, Senior District Judge, dissenting.
I part company with the majority opinion on a narrow but crucial point. The majority opinion is premised on the idea that because the issue was not presented to the trial court, this court should not review the claim of error. I wholeheartedly agree with this general rule. The problem I have is with its application in this case.
In Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S. Ct. 694, 700, 54 L. Ed. 2d 648 (1978), the Supreme Court stated, “[A] district court may in its discretion award attorney‘s fees to a prevailing defendant in a Title VII case upon a finding that the plaintiff‘s action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.” (Emphasis added.) There was no such finding in this case. In my opinion, this alone requires that the award be vacated.
Moreover, since a finding is required, it follows that a prevailing defendant seeking attorney fees bears the burden of proving that the action was frivolous, unreasonable or without foundation. The burden is not on the plaintiff to prove a negative. The act of making a claim for attorney fees under
While I recognize and adhere to the procedural rule on which the majority relies, this rule should not be invoked to defeat legal principles of far greater importance. This court has stated that private enforcement of the Fair Housing Act “not only vindicates the civil rights of the individual victim of discrimination, but promotes the public interest by eradicating housing discrimination. The eradication of housing discrimination is a policy that Congress considered to be of the highest priority.” Price v. Pelka, 690 F.2d 98, 101 (6th Cir. 1982). Consistent with this objective, the Supreme Court has stated that an award of attorney fees to prevailing defendants on the sole basis that they won the case “would substantially add to the risks inhering in most litigation and would undercut the efforts of Congress to promote the vigorous enforcement of the provisions of Title VII.” Christiansburg, 434 U.S. at 422, 98 S. Ct. at 701. Because of the manner in which the Barilows’ motion was presented and decided, we have no assurance that the risks envisioned in Christiansburg were not realized in this case.
Thus, I respectfully dissent.