out of recipient's "current operating grant."
There being no specific authorization for the award of attorneys' fees in situations such as exist here, 28 U.S.C., sec. 2412, is controlling and thus such equity jurisdiction as this Court might have for awarding such fees in proper cases is effectively precluded in these instances. The consolidated motion for award of attorneys' fees to plaintiffs will be denied.
Plaintiffs advance a second argument for award of attorneys' fees and that is such fees should be awarded against Howard J. Phillips personally and not in his representative capacity. It is to be noted in two of the cases consolidated here Phillips is not a party defendant. Those cases are La Raza Unida de Ohio, et al. v. Arnett, et al., Civil Action 1294-73, and Colorado Migrant Council, Inc., et al. v. Arnett, et al., Civil Action 1295-73. In those cases, attorneys' fees could not be awarded against Phillips personally even if it were otherwise proper. But in none of the cases here can attorneys' fees be awarded against Phillips personally. As made known in Local 2677, Amer. Fed. of Gov. Emp. v. Phillips, 358 F. Supp. 60 (D.C. 1973), and Williams v. Phillips, 360 F. Supp. 1363 (D.C. 1973), the President of the United States named Phillips as Acting Director of the Office of Economic Opportunity on January 31, 1973. On April 11, 1973, this Court in Local 2677, Amer. Fed. of Gov. Emp. v. Phillips, 358 F. Supp. 60 (D.C. 1973), enjoined Phillips from terminating, dissolving or abolishing the Office of Economic Opportunity and the terminating of funding or functioning of Community Action Agencies. That opinion and order was entered in a case, which consolidated among others one of the cases here, that is, West Central Missouri Development Corp. v. Phillips, Civil Action 375-73. On June 11, 1973, this Court in Williams v. Phillips, 360 F. Supp. 1363 (D.C. 1973), found that Phillips was not appointed lawfully to his post as Acting Director of OEO and an injunction was entered restraining Phillips from taking any action as Acting Director of OEO. Thus, while it has been held that Phillips was illegally appointed to his office, he nevertheless for a period of months served in a de facto capacity as an officer of the United States. It is the opinion of this Court that having so served, no judgment should be entered against Phillips in his personal capacity for attorneys' fees in these consolidated cases, and plaintiffs' consolidated motion for attorneys' fees in that respect will be denied.
During the pendency of the consolidated motion for attorneys' fees, counsel for plaintiffs acknowledged that in certain of these consolidated actions, to-wit, Rural Housing Alliance v. Arnett, et al., Civil Action 976-73, United Migrants for Opportunity, Inc., et al. v. Arnett, et al., Civil Action 1141-73, West Central Rural Development Corp. v. Shultz, et al. (West Central II), Civil Action 1237-73, La Raza Unida De Ohio, et al. v. Arnett, et al., Civil Action 1294-73, and Colorado Migrant Council, Inc., et al. v. Arnett, et al., Civil Action 1295-73, the plaintiffs obtained the relief they sought in their complaints with the exception of the award of attorneys' fees. At the time of that acknowledgment on August 23, 1973, the case of West Central Missouri Rural Development Council, et al. v. Phillips (West Central I), Civil Action 375-73, was on appeal by defendant Phillips. On September 17, 1973, the United States Court of Appeals for the District of Columbia Circuit dismissed that appeal on appellant's unopposed motion. Thus as of this time, West Central I is in the same condition as the other cases above mentioned so far as all relief sought having been obtained. With the disposition of this consolidated motion for attorneys' fees, those cases will be dismissed. One of the consolidated cases, Southern Alameda County Economic Opportunity Agency v. Arnett, et al., Civil Action 1301-73 is still pending on claims outstanding by plaintiff against defendants. Even though in that case the plaintiffs' motion for award of attorneys' fees is being denied, the case will not be dismissed.
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