concurring in part and dissenting in part:
I respectfully dissent with respect to that portion of the majority’s opinion which affirms the award of attorney’s fees against the Appellant in his individual capacity in the absence of a finding that Appellant acted in bad faith. Such an award is, in my opinion, contrary to both Congressional intent and case law. I concur with respect to the remainder of the majority opinion.
Prior to the 1976 amendment to 42 U.S.C. § 1988 which authorized a court in its discretion to allow reasonable attorney’s fees as a part of the prevailing party’s costs, the Supreme Court set out the American rule and its exceptions for the award of attorney’s fees in the case of Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). In this regard, the court stated:
“Against this background, this Court understandably declared in 1967 that with the exception of the small amounts allowed by § 1923 [28 U.S.C. § 1923], the rule ‘has long been that attorney’s fees are not ordinarily recoverable . . .’ Fleischmann Distilling Corp., 386 U.S., at 717, 87 S.Ct. 1404, [1407] 18 L.Ed.2d 475. Other recent cases have also reaffirmed the general rule that, absent statute or enforceable contract, litigants pay their own attorneys’ fees. See F. D. Rich Co., 417 U.S., at 128-131, 94 S.Ct. 2157, [2164-2166] 40 L.Ed.2d 703; Hall v. Cole, 412 U.S. 1, 4, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973).
“To be sure, the fee statutes have been construed to allow, in limited circumstances, a reasonable attorneys’ fee to the prevailing party in excess of the small sums permitted by § 1923. In Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157 (1882), the 1853 Act [Act of Feb. 26,1853, 10 Stat. 161] was read as not interfering with the historic power of equity to permit the trustee of a fund or property, or a party preserving or recovering a fund for the benefit of others in addition to himself, to recover his costs, including his attorneys’ fees, from the fund or property itself or directly from the other parties enjoying the benefit. That rule has been consistently followed. Central Railroad & Banking Co. v. Pettus, 113 U.S. 116, 5 S.Ct. 387, 28 L.Ed. 915 (1885); Harrison v. Perea, 168 U.S. 311, 325-326, 18 S.Ct. 129, [134-135] 42 L.Ed. 478 (1897); United States v. Equitable Trust Co., 283 U.S. 738, 51 S.Ct. 639, 75 L.Ed. 1379 (1931); Sprague v. Ticonic National Bank, 307 *628U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939); Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970); Hall v. Cole, supra; cf. Hobbs v. McLean, 117 U.S. 567, 581-582, 6 S.Ct. 870, [876-877] 29 L.Ed. 940 (1886). See generally Dawson, Lawyers and Involuntary Clients: Attorney Fees From Funds, 87 Harv.L.Rev. 1597 (1974). Also, a court may assess attorneys’ fees for the ‘willful disobedience of a court order as part of the fine to be levied on the defendant[,] Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399, 426-428, 43 S.Ct. 458, [465-466] 67 L.Ed. 719 (1923),’ Fleischmann Distilling Corp. v. Maier Brewing Co., supra, 386 U.S., at 718, 87 S.Ct. 1404, 18 L.Ed.2d 475; or when the losing party has ‘acted in bad faith, vexatiously, wantonly, or for oppressive reasons . . .’ F. D. Rich Co., 417 U.S. at 129, 94 S.Ct. 2157, 40 L.Ed.2d 703 (citing Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962)); cf. Universal Oil Products Co. v. Root Refining Co., 328 U.S. 575, 580, 66 S.Ct. 1176, [1179] 90 L.Ed. 1447 (1946). These exceptions are unquestionably assertions of inherent power in the courts to allow attorneys’ fees in particular situations, unless forbidden by Congress, . . . (Emphasis supplied). 421 U.S. at 257-258, 95 S.Ct. at 1612, 1621, 1622, 44 L.Ed.2d at 153-154.
In addition to the statement of the rule and its exceptions, the court was careful to emphasize that it was the province of Congress and not the courts to determine when and if attorney’s fees could be awarded. The Court stated as follows:
“Congress has not repudiated the judicially fashioned exceptions to the general rule against allowing substantial attorneys’ fees; but neither has it retracted, repealed, or modified the limitations on taxable fees contained in the 1853 statute and its successors. Nor has it extended any roving authority to the Judiciary to allow counsel fees as costs or otherwise whenever the courts might deem them warranted. What Congress has done, however, while fully recognizing and accepting the general rule, is to make specific and explicit provisions for the allowance of attorneys’ fees under selected statutes granting or protecting various federal rights. These statutory allowances are now available in a variety of circumstances, but they also differ considerably among themselves. Under the antitrust laws, for instance, allowance of attorneys’ fees to a plaintiff awarded treble damages is mandatory. In patent litigation, in contrast, ‘[t]he court in exceptional cases may award reasonable attorney fees to the prevailing party.’ 35 USC § 285 [35 USCS § 285] (emphasis added.) Under Title II of the Civil Rights Act of 1964, 42 USC § 2000a-3(b) [42 USCS § 2000a-3(b)], the prevailing party is entitled to attorneys’ fees, at the discretion of the court, but we have held that Congress intended that the award should be made to the successful plaintiff absent exceptional circumstances. Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968). See also Northcross v. Board of Education of the Memphis City Schools, 412 U.S. 427, 93 S.Ct. 2201, 37 L.Ed.2d 48 (1973). Under this scheme of things, it is apparent that the circumstances under which attorneys’fees are to be awarded and the range of discretion of the courts in making those awards are matters for Congress to determine.
“But the rule followed in our courts with respect to attorneys’ fees has survived. It is deeply rooted in our history and in congressional policy; and it is not for us to invade the legislature’s province by redistributing litigation costs in the manner suggested by respondents and followed by the Court of Appeals.” (Emphasis supplied). 421 U.S. at 260-271, 95 S.Ct. at 1623, 1628, 44 L.Ed.2d at 154-156 and 161.
With the language of Alyeska in mind, I now consider the legislative intent of Con*629gress in enacting the 1976 amendment to 42 U.S.C. § 1988.1
On its face, the statute does not require any fact finding or other prerequisite prior to the award of attorney’s fees; the matter is, of course, within the court’s sound discretion. However, the legislative history behind the statute does present a different view. The Senate Report stated:
“[D]efendants in these cases are often State or local bodies or State or local officials. In such cases it is intended that the attorneys’ fees, like other items of costs, will be collected either directly from the official, in his official capacity,7 from funds of his agency or under his control, or from the State or local government (whether or not the agency or government is a named party).” 94th Cong. (1976), U.S.Code Cong. & Admin. News, p. 5913.
It is obvious, therefore, that Congress did not intend for courts to abandon the “bad faith” requirement of the American common law recognized in Alyeska when awarding attorney’s fees against officials in their individual capacity.
In Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978), the Supreme Court had an occasion to consider the legislative history behind 42 U.S.C. § 1988. The Court noted that:
“The legislative history [of 42 U.S.C. § 1988] makes it clear that in such suits attorney’s fee awards should generally be obtained ‘either directly from the official in his official capacity, from funds of his agency or under his control, or from the State or local government (whether or not the agency or government is a named party).’ S.Rep.No.94-1011, p. 5 (1976), [U.S.Code Cong. & Admin.News 1976, p. 5913.] Awards against the official in his individual capacity, in contrast, were not to be affected by the statute; in injunctive suits they would continue to be awarded only ‘under the traditional bad faith standard recognized by the Supreme Court in Alyeska.’ Id., at 5 n. 7, [U.S. Code Cong. & Admin.News 1976, p. 5913.] There is no indication in this case that the named defendants litigated in bad faith before the Court of Appeals. Consequently, the Department of Correction is the entity intended by Congress to bear the burden of the counsel fees award.” (Emphasis supplied). 437 U.S. at 700, 98 S.Ct. at 2579, 57 L.Ed.2d at 540.
The majority implies that the court’s reference to “injunctive suits” limits the “bad faith standard” to such suits. However, that is not the case. The only reason why the court mentioned injunctive suits was because that was the nature of the lawsuit before it. The Alyeska case and the Senate report upon which the Supreme Court in Hutto based its conclusion did not limit the bad faith standard to injunctive suits and neither did the court in Hutto.
Therefore, it is apparent that Congress did not intend to repudiate the “bad faith” standard of American common law as a requirement to awarding attorney’s fees against an official in his individual capacity.
In addition to the foregoing, two other circuits and, in at least two instances this circuit, have recognized that a finding of bad faith is a prerequisite to the award of attorney’s fees against an official in his individual capacity. The cases are as follows:
(1) Skehan v. Board of Trustees, 590 F.2d 470 (3 Cir. 1978). The court citing Hutto, *630supra, held that, based on the trial court’s finding of no bad faith, the trial court correctly refused to grant an award of attorney’s fees against a college president in his individual capacity. The court stated:
“Thus, the district court’s refusal to award fees to Skehan against defendant Nossen in his individual capacity could be affirmed on the basis of the court’s factual finding that the defendants in this case had not pursued their defense in bad faith.”
“That refusal must be viewed as a valid exercise of the court’s discretion under the Act, given its previous determinations that Nossen was officially immune from damage liability and that he had not pursued his defense in bad faith.” (Emphasis supplied). 590 F.2d at 495.
(2) Pickett v. Milam, 579 F.2d 1118 (8 Cir. 1978). In a suit against election commissioners, the court held:
“We agree with the district court’s finding that there is no indication that the appellees acted in bad faith. Thus, no award of attorney fees against the appellees in their individual capacities is justified. See Hutto v. Finney, supra, 437 U.S. 678, 98 S.Ct. 2565 at 2579, 57 L.Ed.2d 522. However, the specter of personal liability was removed by the Supreme Court’s recent opinion in Hutto v. Finney, supra.” (Emphasis supplied). 579 F.2d at 1120.
(3) Miller v. Carson, 563 F.2d 741 (5 Cir. 1977): In an action for declaratory and injunctive relief, damages and attorney’s fees, this Court approved the award of attorney’s fees based on the “bad faith” standard by saying:
“A. The Civil Rights Attorney’s Fees Awards Act of 1976
We base our holding that the award was authorized on the Civil Rights Attorney’s Fees Awards Act of 1976,26 Pub.L. 94-559, § 2, Oct. 19, 1976, 90 Stat. 2641, codified at 42 U.S.C. § 1988. That Act provides in relevant part: ‘In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.”
(4) Morrow v. Dillard, 580 F.2d 1284 (5 Cir. 1978). While discussing the legislative history behind 42 U.S.C. § 1988, this Court noted:
“The Senate Report [S.Rep.94 — 1011, 94th Cong., 2nd Sess. (1976)] also indicated that where a state official was guilty of bad faith, attorney’s fees could be awarded against him in his private capacity under Alyeska.” (Emphasis supplied). 580 F.2d at 1299, n. 18.
Furthermore, as a practical matter in the absence of a clear mandate from Congress, the detrimental effects of awarding attorney’s fees against an official in his individual capacity in the absence of bad faith should be carefully considered. The possibility of such an award being granted would place an onerous threat and burden on officials in their exercise of the various duties and responsibilities of their offices. Faced with the possibility of having to pay large amounts as attorney’s fees for even good faith errors, officials will be timid and reluctant to make even routine decisions. As a result, the efficient administration and management of governmental offices will be adversely affected. The Supreme Court has recognized this undesirable result in at least two recent cases. In Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975), the court considered the liability of local school officials for their official acts. The court observed that:
“We think there must be a degree of immunity if the work of the schools is to go forward; and, however worded, the immunity must be such that public school officials understand that action taken in *631the good-faith fulfillment of their responsibilities and within the bounds of reason under all the circumstances will not be punished and that they need not exercise their discretion with undue timidity.” (Emphasis supplied). 420 U.S. at 321, 95 S.Ct. at 1000, 43 L.Ed.2d at 224.
And in Hutto, supra, the court recognized that:
“This [requiring officers to pay attorney’s fee awards instead of the state] is manifestly unfair when, as here, the individual officers have no personal interest in the conduct of the State’s litigation, and it defies this Court’s insistence in a related context that imposing personal liability in the absence of bad faith may cause state officers to ‘exercise their discretion with undue timidity.’ Wood v. Strickland, 420 U.S. 308, 321, 95 S.Ct. 992, [1000] 43 L.Ed.2d 214.” 437 U.S. at 699, n. 32, 98 S.Ct. at 2578, n. 32, 57 L.Ed.2d at 540, n. 32.
Based on this rationale of the Supreme Court, it is clear that the Court did not intend that public officials could be “punished” by monetary awards being approved against them in their individual capacities for their official acts when they did not act in bad faith.
In conclusion and in summary, the award of attorney’s fees against the officer in this case in his individual capacity, in the absence of a finding of bad faith, is contrary to both the unequivocal expression of Congressional intent and the prior holdings of the Supreme Court and of this and other circuit courts. Therefore, I would reverse the district court’s award of attorney’s fees against the Appellant in his individual capacity based on that court’s finding that the plaintiff “made no showing that the withholding of plaintiff’s letter was done wilfully, with reckless disregard for plaintiff’s rights.” 2
I consider this to be a finding that the Appellant did not act in bad faith. Consequently, the judgment against him in his individual capacity for attorney fees is erroneous. .
Proof that an official had acted in bad faith could also render him liable for fees in his individual capacity, under the traditional bad faith standard recognized by the Supreme Court in Alyeska. . . ” S.Rep.94-1011 at 5. 94th Cong. (1976), U.S.Code Cong. & Admin.News, p. 5913.
. 42 U.S.C. § 1988, as amended, states in pertinent part as follows:
“. . .In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, or in any civil action or proceeding, by or on behalf of the United States of America, to enforce, or charging a violation of a provision of the United States Internal Revenue Code, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.”
We affirm the trial court’s finding that the plaintiffs are entitled to recover an attorney’s fee from Sheriff Dale Carson in his individual capacity on the basis of the bad faith exception to the general rule that a party must pay his own attorney’s fee. See 401 F.Supp. at 853-57 . . .” (Emphasis supplied). 563 F.2d at 754.
. In the absence of evidence to the contrary, public officials are presumed to have acted in good faith. Greenway v. United States, 175 Ct.Cl. 350 (1966), cert. denied, 385 U.S. 881, 87 S.Ct. 167, 17 L.Ed.2d 108 (1966); Kozak v. United States, 458 F.2d 39, 198 Ct.Cl. 31 (1972); Kalvar Corp. v. United States, 543 F.2d 1298, 211 Ct.Cl. 192 (1976), cert. denied, 434 U.S. 830, 98 S.Ct. 112, 54 L.Ed.2d 89 (1977); see United States v. Chemical Foundation, 272 U.S. 1, 47 S.Ct. 1, 71 L.Ed. 131 (1926), and Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944).