Milburn v. Heucker, Nos. 75-1471, 1472 (Bratcher, J.); Weisenberger v. Huecker, Nos. 75-1473, 1474 (Allen, J.). The two cases were brought as class actions by Appellees on behalf of themselves and all recipients of benefits under the Aid to Permanently and Totally Disabled program (APTD), and the Aid to Families for Dependent Children program (AFDC), welfare programs jointly carried out by the state and federal governments. Appellees claimed that the state was failing to process applications and award benefits within time limits set by federal law. They sought declaratory relief and an order enjoining Appellants from not acting on applications within the relevant time periods and from not paying benefits from the date of application. They also asked for an award of all benefits wrongfully withheld and an award of costs and reasonable attorneys' fees. The District Courts held that the state's practices in administering the programs violated federal law and granted prospective relief. The Courts denied, however, the demands for retroactive payment of welfare benefits as barred by the Eleventh Amendment. They also refused requests for costs and attorneys' fees.

While the cases were on appeal the Supreme Court decided Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), which held that the Eleventh Amendment deprived federal courts of jurisdiction to award past due welfare benefits payable from a state's treasury and that a state's participation in a federal welfare program does not, without more, constitute an implied consent by the state to be sued in federal court.

As a factual basis for the award, Judge Allen adopted statements made by Kurt Berggren, General Counsel for the Legal Aid Society, in an affidavit submitted to the Court. The Court found that neither Appellant Weisenberger nor any member of the plaintiff class was required to pay any fees to the Legal Aid Society since the Society is prohibited from taking fees directly from its clients. It found that Legal Aid is funded by various sources, public and private, and that the Society is chronically underfunded. The Court accepted the Society's assertion that an estimated 40 hours was spent representing Appellees in the District Court and 15 hours on the appeal to this Court. The District Court also found that no taxable costs were incurred by Appellees.

The Eleventh Amendment is, of course, no bar to suits in equity seeking prospective relief against individual state officials in their official capacities under the fiction adopted by the Supreme Court in Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), that suit is brought against the individual officials rather than the state itself. See Edelman v. Jordan, supra, 415 U.S. at 663-68, 94 S.Ct. 1347. As noted by Justice Rehnquist in Edelman, "the difference between the type of relief barred by the Eleventh Amendment and that permitted under Ex Parte Young, will not in many instances be that between day and night." 415 U.S. at 667, 94 S.Ct. at 1357.

This issue has split the circuits with the Sixth and Third Circuits aligned against the First, Second, Seventh and Ninth Circuits. Compare, e.g., Jordon v. Gilligan, supra; Taylor v. Perini, supra; and Skehan v. Bd. of Trustees, 501 F.2d 31, 42 n. 7 (3d Cir. 1974), vacated on other grounds, 421 U.S. 983, 95 S.Ct. 1986, 44 L.Ed.2d 474 (1975), with e.g., Souza v. Travisono, 512 F.2d 1137 (1st Cir. 1975), vacated on other grounds, 423 U.S. 809, 96 S.Ct. 19, 46 L.Ed.2d 29 (1976); Class v. Norton, 505 F.2d 123 (2d Cir. 1974); Bond v. Stanton, 528 F.2d 688 (7th Cir. 1976), cert. granted., ___ U.S. ___, 96 S.Ct. 2224, 48 L.Ed.2d 829, 44 U.S. L.W. 3682 (1976); Brandenburger v. Thompson, 494 F.2d 885 (9th Cir. 1974). The Fifth Circuit has not yet reached a concensus on this issue. Newman v. State of Alabama, 522 F.2d 71 (5th Cir. 1975) ( en banc) (D.C., 349 F. Supp. 278, rev'd and remanded for consideration of the fees issue); Gates v. Collier, 522 F.2d 81 (5th Cir. 1975) ( en banc) (D.C., 371 F. Supp. 1368, rev'd and remanded for consideration of the fees issue.) The Supreme Court explicitly reserved this question in Alyeska Pipeline Serv. Co. v. Wilderness Soc., 421 U.S. 240, at 269 n. 44, 95 S.Ct. 1612, 44 L.Ed.2d 141. However, it appears that the Supreme Court is about to resolve the conflict between the circuits when it decides Bitzer v. Mathews, 519 F.2d 559 (2d Cir. 1975), cert. granted, 423 U.S. 1031, 96 S.Ct. 561, 46 L.Ed.2d 404, 44 U.S.L.W. 3358 (1975), argued April 21, 1976, 44 U.S.L.W. 3606 (1976).

An award against a state officer in his official capacity is an award against the office rather than the man and is to be satisfied out of public funds. See Incarcerated Men v. Fair, supra at 287, 289. An award in an official's individual capacity is directed against his personal assets. Id. at 287.

We cannot accept Appellees' argument that the state has waived its sovereign immunity in this case. Waiver may only be found where it is clear from the circumstances that the state intends to surrender its sovereign immunity and expose itself to a monetary judgment in the federal court. See Edelman v. Jordan, supra, 415 U.S. at 673, 94 S.Ct. 1347. The Kentucky constitution clearly provides that only the General Assembly may direct in which manner and in what courts suit may be brought against the Commonwealth. Ky. Const. § 231. Mere participation in a joint program with the federal government, by itself, is not sufficient to establish consent on the part of the state to suit in the federal court. Edelman v. Jordan, supra at 673, 94 S.Ct. 1347. Allowing a default judgment to be entered does not amount to waiver of the defense of sovereign immunity since the Eleventh Amendment bar is jurisdictional in nature and thus may be raised at any point in the litigation. Id. at 678, 94 S.Ct. 1347. Besides, this was not a case where the state failed to assert its immunity. Although Appellants did not respond directly to the complaint, they did motion to strike the claim for retroactive benefits as barred by the Eleventh Amendment. Since the District Court's grant of relief was based on statutory rather than constitutional grounds, we see no need to determine what effect, if any, the later enactment of the Fourteenth Amendment had on the scope of sovereign immunity under the Eleventh Amendment. See id. at 694 n. 2, 94 S.Ct. 1347. (Marshall, J., dissenting).

Any reimbursement by the state would be voluntary in the sense that it is not compelled by the federal court. It is doubtful that a state could insulate its officials from personal liability for damages or attorneys' fees simply by guaranteeing reimbursement. See generally Note, Attorneys' Fees and the Eleventh Amendment, 88 Harv.L.Rev. 1875, 1885 n. 64 (1975).

The "bad faith" which justifies the award of attorneys' fees may be demonstrated in the conduct which necessitated the action or in conduct occurring during the course of the action. Hall v. Cole, supra, 412 U.S. at 15, 93 S.Ct. 1943. Bad faith may be demonstrated by showing that a defendant's obstinacy in granting a plaintiff his clear legal rights necessitated resort to legal action with all the expense and delay entailed in litigation. See Monroe v. Bd. of Com'rs, 453 F.2d 259, 263 (6th Cir. 1972). See also Fairley v. Patterson, 493 F.2d 598, 605 (5th Cir. 1974). In this regard, the purpose of an award of attorneys' fees based on a defendant's bad faith is both punitive and to compensate a plaintiff for the added expense of having to vindicate clearly established rights in court.

The "common benefit" exception is actually a cost-spreading device to spread litigation costs among all who benefit from litigation undertaken by only a few. Incarcerated Men v. Fair, supra at 284.

Judge Allen observed that suit was brought on June 22, 1972 to require Appellants to comply with time periods clearly established by federal statutes enacted in 1968. 42 U.S.C. § 1351-55 (1970); Handbook of Public Assistance Administration, Part IV, § 2200(b)(3), (5) (1968). He stated that the enactment of the statute indicated "a strong Congressional desire that welfare applicants' claims be processed in a prompt and timely manner, and that the usual measure of time required should be 30 days." He found that, despite the three years the statutes and regulations promulgated thereto had been in effect, a seventy day period had elapsed between the time of Appellee's application and her receipt of approval. He ascribed much of the delay to Appellants' insistence that members of the plaintiff-class file paternity suits to qualify for assistance. Judge Allen commented on Appellants' failure to respond to the complaint and indicated that Appellants had allowed a default judgment to be entered against them. He also noted in passing that Appellants resisted interrogatories propounded by Appellee following default, although he admitted that this was not relevant to a finding of bad faith since it occurred after Appellee was entitled to a default judgment.

Given the rationale for the "bad faith" exception, see note 8 supra, and the fact that the award was made against Appellants in their individual capacities, the Court must find that an award of attorneys' fees is justified by Appellants' conduct either in the processing of applications and the award of benefits or in the defense of the law suit.