# Cross Petition — Florida Department of Highway Safety & Motor Vehicles v. Sims > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1642%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Cross Petition - **Published:** January 1, 1989 - **Citation:** 493 U.S. 815 ## Text a DUP ONIS VUUTT, U.de : FILED Be-19 |] JUN 30. 1989 JOSEPH F. SPANIOL, JR, ' CLERK No. 88-___ , In The Supreme Court of the United States October Term, 1988 y% _ MYRA HOLLADAY SIMS and FLORIDA IMPORT AND COMPLIANCE ASSOCIATION, Cross-Petitioners, STATE OF FLORIDA, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, and CHARLES J. BRANTLEY, DIRECTOR, DIVISION OF MOTOR VEHICLES, Cross-Respondents. a On Cross-Petition For Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit y% — CROSS-PETITION FOR CERTIORARI (RULE 19.5) OF CROSS-PETITIONERS SIMS AND FICA 4 4 RosBeERT P. SMITH, JR. Counsel of Record Crcevia C. SMITH 123 S. Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314 (904) 222-7500 for Cross-Petitioners COCKLE LAW BRIEF PRINTING CO,, (800) 225-6964 OR CALL COLLECT (402) 342-2831 QUESTIONS PRESENTED UNDER RULE 19.5° 1. The Eleventh Amendment question, reformulated to the facts: On appeal from a District Court judgment gran- ting declaratory and prohibitory relief only against a State agency enforcing a State statute that directly vio- lates the Clean Air Act and discriminates discretely against a sector of Foreign Commerce by licensing pre- requisites that importers cannot fulfill, did the Eleventh Amendment require the Court of Appeals to dismiss the case after the Court itself solicited an Eleventh Amend- ment plea from an Attorney General who had been per- sonally joined as party defendant in the District Court, and against whom relief was sought, but who then was dropped as a party as he and the State insisted when they interposed no Eleventh Amendment defense to the fed- eral claims? 2. Attorney’s Fee question, presented as fairly included in any certworthy Eleventh Amendment question: When injured citizens of a State prevail in an action to enforce the Clean Air Act’s express prohibition of State licensing impediments to the federally-controlled flow of Foreign Commerce through ports of the United States, is not the Clean Air Act to be considered as expressly securing citizens in a federal right, privilege or immunity as regards that forbidden activity under color of State law, such that prevailing claimants should be awarded attor- ney’s fees against the defendant State agency, 42 USC §§ 1983 and 1988? * This cross-petition is a companion to No. 88-1950, a petition for writ-of certiorari by cross-respondents here, seeking review of the same Court of Appeals judgment. Cross-petitioners as respondents in No. 88-1950 will file a brief there opposing the writ except on the Eleventh Amendment question. il TABLE OF CONTENTS Page OPINIONS BELOW... ......). 2.0000 a uee cea eene eens es 1 JURISDICTION |... «05 5.5ss00 cess hp en en pene een conan 1 CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED |... 5 oo ccwcocnup eee teen eee 2 STATEMENT OF THE CASE... ....52...- sess ss0. 4 REASONS FOR GRANTING THE WRIT .........-. 16 A. The Eleventh Amendment Question ......... 16 B. The § 1988 Attorney’s Fee Question..... Pere 25 CONCLUSION (00,05 oss ve es See eee eres oe 28 APPENDIX (preceded by Table of Contents)....... SA 1 ili TABLE OF AUTHORITIES Page CAsEs: Chapman v. Houston Welfare Rights Organiza- Ee) ee ae a7 Chisolm v. Georgia, 2 Dall. 419 (1793) .............. 18 Clients’ Council v. Pierce, 778 F.2d 518 (8th Cir. ay vs 4 oo ees vv 40 65 0a oes 25 Consolidated Freightways Corp. of Del. v. Kassel, 556 F.Supp. 740 (S.D. lowa 1983), aff’d, 730 F.2d 1139 (8th-Cir. 1984), cert. den., 469 U.S. 834 ...... 25 Edelman v. Jordan, 415 U.S. 651 (1974)........... 18, 22 Ford Motor Co. v. Department of Treasury of Indi- ga EE eS |) a 18, 22 Glover v. Alabama Dept. of Corrections, 734 F.2d 691 (11th Cir. 1984), vacated on other grounds, 474 U.S. 806 (1985), on remand, 776 F.2d 964 ce seu thoes veews>s 19 Ge als a ew. paoneessana, 134 U.S. 1 (1890) ............. 17, 18 ae ¥. Pinney, 43/7 U.S. 678 (1978).............- ey Ee x 4 Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099 AL a 20 McKeown v. Brown, 167 lowa 489, 149 N.W. 593 ee kde eke kaka sbewanee 23 Patsy v. Board of Regents of the State of Florida, 8 i ee iv TABLE OF AUTHORITIES —- Continued Page Pennhurst State School & Hospital v. Halderman, Be A a Oe Ae ee are Roe be ekeres 9 72.995 ze Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 483 U.S. __, 107 S.Ct. 3078 (1987) .... 28 Pennsylvania v. Union Gas Co., ___U.S.____ (1989) .18, 22 Oueyn v. Jordan, 446 US. 332 (IGS)... sc cccccanes 18 Solomon v. City of Gainesville, 796 F.2d 1464 (11th ae | err erry ree e ee Per ye cee eae 25 Sosna v. iowa, 419 US. S99 CGS) oo woos ee eee heen ns 23 White Mountain Apache Tribe v. Williams, 810 ee ee A | rere errr yf Will v. Michigan Department of State Police, __ U.S. aie 15, 19UP) is ci ve pwncw enn eens aes 27 Ex Parte Young, 209 US. 123 (1907)...............-+- 9 CONSTITUTION, SiYATUTES AND RULES: The Foreign Commerce Clause, Art. I, Sec. 8, United States: Constitution... .o60.. ss. sce eee 2, passim The Supremacy Clause, Art. VI, United States SE 5 55 os cs eV Gee tee es ee 2, passim The Eleventh Amendment, United States Consti- Is skew cine cs Sacer eG anehenenres tere 2, passim 42 USC § 1983, Civil Rights Act of 1871...... 3, passim 42 USC & 1966, Civil Rights Act «3.63 055553 3, passim 42 USC § 7543(a), The Clean Air Act ......... 3, passim TABLE OF AUTHORITIES - Continued Page gt ae Bier gL) Ree 5, passim Fla. Stat. 86.091 (1983), (1987) Rule 5(b), Rules of the United States District Court for the Northern District of Florida............. . 10 OPINIONS BELOW The Court of Appeals opinions, described also in the petition in No. 88-1950, pp. 1 and 2, are contained in the appendix to that petition as App. A and B1. The in banc opinions were filed January 11, 1989, reported at 862 F.2d 1449 (11th Cir. 1989), and are set out at pp. A5-A104. The panel opinions were filed December 2, 1987, reported at 832 F.2d 1588 (11th Cir. 1987), and are set out at pp. A105- A214. They were vacated by in banc order at 840 F.2d 778 (1988). The opinion and final judgment of the District Court for the Northern District of Florida, December 30, 1985, is not officially reported but is contained in the appendix to the petition in No. 88-1950 as App. D1, pp. A219-239. This cross-petition relies in part on material in the appendix in No. 88-1950 (A___), and it contains a supple- mental appendix (SA___) which does not duplicate mate- rial available in the appendix. The supplemental appendix sets out other pertinent submissions to and orders by the courts below. 4 -_ JURISDICTION This Court’s jurisdiction was timely invoked in No. 88-1950 by the filing of that petition on May 31, 1989, within 60 days of the denial below of petitioners’ timely motion for rehearing below, on March 2, 1989 (A5,. A240, A259). This cross-petition invokes the Court’s jurisdiction under 28 U.S.C. § 1254(1) and Rule 19.5. Otherwise untimely, the cross-petition is timely because filed within 30 days after receipt of the petition on June 1, 1989. Question 1 of this cross-petition reformulates the cor- responding Eleventh Amendment Question in the peti- tion in order to recognize facts omitted from the petition which, so it seems to cross-petitioners, make the Question more worthy of this Court’s consideration. Cross-peti- tioners’ purpose is not to seek more practical relief than was afforded by the Court of Appeals on the Eleventh Amendment, but to assure review if at all on a question that is accurate in terms of the case. Question 2 of the cross-petition seeks affirmative relief greater than was afforded by the Court of Appeals. Cross-petitioners recognize that Rule 20.5 constrains review unless the petition in No. 88-1950 is granted to review an Eleventh Amendment question or some other. As a claim for attorney’s fees, it is of course also depen- dent on cross-petitioners ultimately prevailing before this Court. y% vv CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED The Foreign Commerce Clause, in Art. I, Sec. 8 of the Constitution: The Congress shall have Power . . . To regulate Com- merce with foreign Nations... . The Supremacy Clause, in Art. VI of the Constitution: This Constitution, and the laws of the United States which shall be made in Pursuance there- of . . . shall be the supreme Law of the Land... . The Clean Air Act, in 42 USC § 7543(a): No state or any political subdivision thereof shall adopt or attempt to enforce any standard relating to the control of emissions from new motor vehicles or new motor vehicle engines subject to [the vehicle emission standards of the Clean Air Act]. No state shall require certification, inspection, or any other approval relating to the control of emissions from any new motor vehicle or motor vehicle engine as condition precedent to the initial retail sale, titling (if any), or registration of such motor vehicle, motor vehicle engine, or equipment. The Eleventh Amendment to the Constitution: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. Section 1979 of the Civil Rights Act of 1871, in 42 USC § 1983: Every person who, under color of any statute, ordi- nance, regulation, custom, or usage, of any State... subjects, or causes to be subject, any citizen of the United States .. . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceed- ing for redress. . And 42 USC § 1988: ...In any action or proceeding to enforce a provision of [section 1979] of the Revised Statutes . . . 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. y 4 STATEMENT OF THE CASE The State of Florida chooses not to verify that cars on its roads are equipped with effective emission controls and safety devices. The State abandoned its auto inspec- tion system some years ago. District Court finding, A235. In response to a citation by the United States Environ- mental Protection Agency for excessive automobile emis- sion pollution, the 1988 Florida Legislature authorized emissions control inspections “beginning March 1, 1990, or as soon thereafter as possible as determined by the department [petitioner Department of Highway Safety and Motor Vehicles].” Fla. Laws Ch. 88-129, § 3 (1988); codified at Sec. 325.203 (1), Fla. Stat. (1988 Supp.). Ordinarily, therefore, at all times pertinent to this litigation, the owner of a car seeking a Florida tag and title paid the fees and was issued a tag and title. Regard- less of the age of one’s car, new or used, in sound condi- tion or not as regards emissions and safety devices, previously tagged and titled in Florida or another state, or never so documented — Florida issues a tag and title. Florida does not ask whether the car has emission control devices, or seatbelis and doorlocks and such, or whether the car has been certified by any governmental authority, federal or state, as having such. “Unless,” a State official testified, “it is one of the vehicles under the issue of this trial” (R4-42-18, record in the Court of Appeals) — a car bearing foreign title papers, presented fer its first Ameri- can registration: © When I buy an automobile, whether it’s new or used, a Ford, say, and go down to get it titled and registered, does anybody quiz me about compliance with safety standards? A No, sir. QO Nor emission standards? A No, sir. Unless it is one of the vehicles under the issue of this trial. Enacted in 1984, Fla. Stat. § 320.02(9) requires the Department to refuse tags and titles for imported foreign- built cars still bearing foreign titles, until they are “certi- fied by the United States Customs Service or the United States Department of Transportation and the United States Environmental Protection Agency to be in compli- ance with” Clean Air Act emission standards and federal Highway Safety Act safety standards. App. E2, p. A264. Those federal agencies have no mandate nor any authority from Congress to “certify” anything of the sort to the states, and they do not. District Court findings, App. D1, A222. The Florida agency therefore began demanding other prerequisites to a tag and title: other pieces of federal paper that federal agencies issue rou- tinely for other purposes than to control owning and operating a car, including finally — six to nine months after importation — a National Highway Traffic Safety Administration letter to Customs releasing its interest in the bond given at the time of import. A222. No federal law, regulation or practice impeded Myra Sims and others like her in titling and driving their cars at any time after Customs released them under bond at the port of entry. And the Clean Air Act declared, as regards State restrictions on tags and titles: “No state shall require certification, inspection, or any other approval .. . as condition precedent to the initial retail sale, titling (if any), or registration. . . .” 42 USC § 7543{a).! Florida’s Statute operates, as intended, exclusively against certain Foreign Commerce as such. No other car or owner is so restricted. The District Court found on undisputed evidence that the law serves no local purpose but simply attémpts to arrogate to a State agency the de facto enforcement of (what the State agency supposes to be) federal law and regulatory policy. That, the District Court found, was expressly forbidden by Congress as well as by the Foreign Commerce Clause. “(T]he trials and tribulations that Florida has erected in their path destroys the common market of commerce for the entire United States as established by the Consti- tution. It is precisely this type of state action that the 1 We pretermit here, as unnecessary to the Eleventh Amendment question, a further demonstration that as a matter of federal regulatory fact and law an importer such as Myra Sims is free to own and drive her car while awaiting the end of the federal paperwork stream completing her customs entry. The Eleventh Circuit panel decision recognized her entitlement both as a matter of fact and federal law, 832 F.2d 1558, 1563 text at fn. 7, App. B1, pp. A122-A123. And the in banc majority agreed with the District Court that in any event it was solely the federal agencies’ prerogative, not the State’s, to interpret federal law and enforce its regulatory requirements. 862 F.2d 1449, 1455, A23-A24; A227-A228 (District Court). Question 3 in the petition in No. 88-1950 attempts to clad this issue in the “standing” terms employed by Judge Tjoflat’s panel dissent, 832 F.2d 1558, 1574 Part D, an analysis which the author abandoned in dissenting in banc on “standing”. The insubstan- tiality of the “standing” question is shown in respondents Brief in Opposition. [Foreign] Commerce Clause was designed to pre- vent. .. .” District Court judgment, A238. The District Court found that the statute offends the dormant Foreign Commerce Clause, A236-A239; is expressly preempted by the Clean Air Act, 42 USC § 7543(a), A227-A229; and is preempted as well by the Motor Vehicle Safety Act, 15 USC § 1392(d), A229-236. Rejecting the State’s purported justification for usurping federal regulatory authority over emission control stan- dards in the Clean Air Act, the District Court held, A227- A228: The state argues that it is not setting any emis- sion standards of its own that must be met and that the challenged statute simply “insures that new cars coming on to Florida’s highways comply with the Clean Air Act.” Brief of defendants at 19. The state fails to recognize, however, that it is not its role to enforce such standards at the stage that it seeks to do so. It does not matter if the state has enacted stan- dards that are different or identical to those enacted by the federal government at this point. The intent of Congress is very clear and specific: Prior to the first sale, the states are preempted from enacting any reg- ulatory or enforcement scheme either of their own or to complement the federal scheme, with specific regard to titling and registration. Yet, this is precisely what the challenged Florida statute seeks to do. Enforce- ment of the Clean Air Act before first sale is the sole and exclusive prerogative of the federal govern- ment. . . . (Emphasis by the Court.) The Court of Appeals panel agreed in virtually those terms that Florida Statute § 320.02(9) offended the Com- merce Clause and was expressly preempted by the Clean Air Act, though not by the federal Safety Act. 832 F2d 1558, 1564-70; App. B1 pp. A126-A148. The Court in banc reaffirmed, 6-5, that the Clean Air Act wholly preempts the statute — evidently regarding its elements as indivis- ible —- and declared it unnecessary to reach the dormant Commerce Clause issue. 862 F.2d 1449, 1458; App. A22- A38. The Eleventh Amendment plea, a belated assertion by the Attorney General which the Court of Appeals panel said was “untimely and compelled” by the panel itself, 832 F.2d 1570, App. B1, A152, provoked a sharp 6-5 split in the in banc decision. It is posed as Question 1 by the petition in No. 88-1950 and by the corresponding Question in this cross-petition. A most puzzling statement appears prominently at the head of the Attorney General’s “Reasons for Granting the Writ” in the petition, p. 14: This case was filed by the Respondent against the State and its Department of Highway Safety and Motor Vehicles. No individual state official was ever a named party to the action. This statement is inexplicable. Neither Attorney Gen- eral Butterworth nor his predecessor, Attorney General Jim Smith - who was in fact “a named party to the action” — has ever before made such a statement in five years of litigation. The Complaint filed in the District Court on July 25, 1985, sued “JIM SMITH, ATTORNEY GENERAL OF THE STATE OF FLORIDA” as a party defendant along with the defendant Department. Supp. App. A, SA 1, caption and introductory paragraph. The complaint alleged that unless enjoined “the defendants” — Jim Smith as Attorney General, as well as the Department — “will continue so to enforce those unlawful and preempted restrictions against plaintiffs and others.” SA 3, 7 12, e.a. The Com- plaint closed with a prayer for a‘preliminary and a per- manent injunction against “the defendants.” SA 5, e.a. Attorney General Jim Smith appeared as a party in the District Court and as a party answered the Com- plaint. He joined in the Answer filed August 19, 1985, not simply as counsel named at the end, Supp. App. B, SA 7, but in the admissions and denials he as “undersigned counsel” pleaded for “the defendants.” Supp. App. B, SA 6. Thus, The Defendants, by and through their undersigned counsel, hereby file their answer... . 1. The Defendants admit that part of Paragraph 1 that states the jurisdiction of this Court, and the reason the Plaintiffs are seeking relief against the Defendants. However, the defendants deny .. . By joining Attorney General Smith as a party, the Complaint exploited both that officer’s general law enforcement authority over § 320.02(9)? as well as a con- temporaneous Florida statute requiring that the Attorney General be “served with a copy of the complaint and be entitled to be heard” when the constitutionality of a Florida law is at issue in State court proceedings. 2 The general power of attorneys general to enforce state laws was part of the predicate for joining Attorney General Young in Ex Parte Young, 209 U.S. 123, __, 28 S.Ct. 441, 454 (1907), and doctrinally predicates the authority-stripping “fic- tion” attributed to that decision by, for example, Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 114 at fn. 25 (1984). 10 The Florida statute? in terms affects only State court proceedings, but Local Federal Rule 5(b) in Northern District of Florida requires that the statute be observed as a “notice” device on filing a federal complaint contesting a Florida statute for constitutionality.4 By joining Attorney General Jim Smith as a party defendant, and complaining that he threatened official action to enforce the offending statute, and praying for injunctive relief against him, the Complaint uttered the incantation necessary to neutralize any Eleventh Amend- ment defense which the Department and Attorney Gen- eral might interpose against declaratory and prospective injunctive relief on the federal questions pleaded in Counts I and II (Supp. App. A, SA 1-5). For reasons they never stated of record, the defen- dants (not distinguishing between themselves in the sin- gle voice of Attorney General Jim Smith) objected to Smith’s joinder as a party defendant (Supp. App. B, SA 6-7), and they prevailed on plaintiffs’ counsel to withhold 3 Fla. Stat. 86.091 (1983), (1987), on Declaratory Judg- ments: “When declaratory relief is sought, all persons may be made parties who have or claim any interest which would be affected by the declaration. . . . If the statute . . . is alleged to be unconstitutional, the Attorney General or the state attorney of the judicial circuit in which the action is pending shall be served with a copy of the complaint and be entitled to be heard.” 4 Rule 5(b), Rules of the United States District Court for the Northern District of Florida: “Upon the filing of any action in which the constitutionality of a state statute, charter, ordi- nance, or franchise is challenged, counsel shall comply with the notice provisions of Section 86.091, Florida Statutes.” 11 service of process temporarily. Supp. App. C, SA 8. Then their “undersigned counsel” — Attorney General Smith - filed an Answer for “the Defendants” including himself, and averred:° 4. The Defendants admit the allegations of Paragraph 4 [of the Complaint], but by stipulation in open court, the parties agreed that Jim Smith, Attor- ney General, should not be named a party defendant to this action. The Defendants thus demanded according to what they said was an (unreported) “stipulation in open court” that defendant Smith be dropped as a party; and the same Defendants simultaneously pleaded an Eleventh Amend- ment defense only to the pendent State law claim in Count III of the Complaint (Supp. App. B, SA 7). It was no coinci- dence that Defendants Department and Smith omitted an 5 The quoted Answer of “the Defendants” admitting “the allegations of Paragraph 4” suffices to correct the uncharitable miscounting of parties defendant by the in banc dissent. The dissent says “Sims and FICA sought no relief against the attorney general” (862 F.2d at 1469 fn. 22, App. A, A92 fn. 22) and glosses over the Complaint’s plural reference to “defen- dants” by referring — as though the Complaint did also — to “the named defendants” as “the State of Florida and the Department” (862 F.2d at 1469 text at fn. 23, A92). In both law and fact, the State of Florida, Department of Motor Vehicles and Highway Safety, was one defendant not two. Fla. Stat. § 20.04(1): “Each department shall bear a title beginning with their words ‘State of Florida’ and continuing with ‘Department of __’.” Defendants expressly admitted the same as a matter of fact. Complaint J 4, Supp. App. A, SA 2: “Defendant State of _ Florida, Department of Highway Safety and Motor Vehicles, is the department of state government principally charged to enforce. . . . Defendant Jim Smith is Attorney General of the State of Florida. . . .” See Answer 4 4, Supp. App. B, SA 6. 12 Eleventh Amendment defense to federal claims that would be immunized from it by the party-presence of Jim Smith, Attorney General; while they pleaded an Eleventh Amendment defense to a pendent State law claim, for which Smith’s party-presence would likely be no antidote.® On the very day the Department and Smith as Attor- ney General, Defendants, filed that Answer — August 19, 1985 — counsel for Sims and FICA filed a motion to drop Smith as a party “inasmuch as the Attorney General was named a party only to afford him the opportunity to be heard if he chose with party status, and the Attorney General has expressed a preference that he not be a named party.” Supp. App. C, SA 8-9. The motion was routinely granted. Supp. App. D, SA 9. The Department (and its counsel, the Attorney Gen- eral) adhered to this status quo for two years, until March 1987. The case was tried in September 1985, and judg- ment was entered in December. App. D1, A219, A239-The appeal was argued before the Eleventh Circuit panel on Monday, September 29, 1986. On February 18, 1987, the Clerk wrote counsel requesting briefs on new issues — mootness, standing, and the Eleventh Amendment — which the Court declared it was “obliged to address. . . sua sponte” (Supp. App. E, SA 10). [The in banc dissent is in error suggesting, 862 F.2d at 1469 fn. 25, App. A. A96, that the Eleventh Amendment was raised four months earlier at oral argument.] The 6 Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984). to ~=_> Clerk’s letter cited, as regards the Court’s duty to raise the Eleventh Amendment issue (SA 11), ... Sosna v. Iowa, 419 U.S. 393, 396 n.2, 95 S.Ct. 553, 555-56 n.2 (1975) (Supreme Court addressed sover- eign immunity question although it was not raised by the parties.) Responding to this invitation, the Attorney General’s incanted the Eleventh Amendment and pointed out that the case lacked a personal party-surrogate for Florida, whose authority might be “stripped”. Sims and FICA, citing Patsy v. Board of Regents of the State of Florida, 457 U.S. 496, 515 n. 19 (1982),7 objected to the Court’s action — “in effect a solicitation of such a defense, which appellant Department now has asserted” (Supp. App. F, SA 12). The objection was “DENIED” by the panel (Supp. App. H, SA 13). Cross-petitioners also moved the Court (Supp. App. G, SA 13): to add as a party defendant and appellant on such terms as are just, or temporarily to relinquish juris- diction to the District Court that it may do so, Charles J. Brantley, Director of the Division of Motor Vehicles, Florida Department of Highway Safety and Motor Vehicles. Fed.R.Civ.P. 21. That motion too was “DENIED” by the panel (Supp. App. I, SA 14). 7 The objection quoted, as the panel majority did later in its opinion, 832 F.2d 1570, Ai50, what this Court said in Patsy: [W]e have never held that [the eleventh amendment defense] is jurisdictional in the sense that it must be raised and decided by this court on its own motion. ican iaaeiiaaiimeaiieceaeeaeea 14 Several months later, the panel decision on the merits reconsidered the motion to add Brantley “in light of the state’s untimely and compelled assertion of the sovereign immunity defense.” 832 F.2d at 1570, App. Bl, A152. Saying “the matters to be weighed in ruling on such a motion can better be considered in the district court,” Id., A151, the Court panel affirmed the District Court’s find- ings that the Florida statute offends the Clean Air Act and the dormant Commerce Clause, and remanded the joinder question for disposition by the district court: Although we do not interpret Patsy as prohibiting this court from raising the issue of sovereign immu- nity, we do recognize the inequity in allowing the state to now assert the defense of sovereign immu- nity without affording Sims and the FICA an oppor- tunity to effectively counter the defense at this stage in the litigation. The in banc dissent erroneously states that Sims and FICA did not renew their joinder motion before the Court in banc. 862 F.2d at 1469, fn. 25, App. A, A96 fn. 25.8 That statement, apparently, is the source of petitioners’ erro- neous formulation of Question 1, petition No. 88-1950 p. i, saying the in banc Court acted “sua sponte” in ordering Brantley joined. In fact the in banc brief of Sims and FICA renewed their prior motion to the panel, and expanded it. They asked, as perhaps a more suitable and convenient alterna- tive, that the incumbent Attorney General “be restored as a 8 The in banc dissent: “The panel denied the motion on May 26, 1987, and Sims and FICA have not renewed it. The court therefore acts sua sponte in substituting [sic] Brantley as the party defendant at this tirne.” 15 party.” See excerpt from in banc brief filed May 2, 1988, App. Supp. J, SA 15, entitled: “D. THE ATTORNEY GENERAL SHOULD BE RESTORED AS A PARTY OR MR. BRANTLEY SHOULD BE JOINED TO CURE ANY ELEVENTH AMENDMENT IRREGULARITY” In the end, as the Court is advised, the Eleventh Circuit in banc majority joined Mr. Brantley as a party to afford a nominal official presence for what the Attorney General claimed now had become an indispensable authority-stripping ceremony. In the course of these tumultuous Eleventh Circuit proceedings involving multiple briefings from several amici as well as the parties, Sims and FICA moved the panel to award them an attorney’s fee under 42 USC §§ 1983 and 1988, should they prevail. The merits of that motion were not discussed in the panel opinion, but a ruling denying it was subsumed in the exasperated foot- note 6 to the panel opinion: “The motions not directly ruled upon in this opinion are denied.” 832 F.2d at 1563, fn. 6; App. Bl, A119. Sims and FICA renewed their request for § 1988 attorneys’ fees before the Court in banc. Their in banc brief predicated that entitlement both on the equal pro- tection claim, unpleaded but tried by consent, and on their having prevailed on a claim of right, privilege or immunity under the Clean Air Act, 42 U.S.C. § 7543(a). As to the latter, cross-petitioners’ in banc brief filed May 3, 1988, stated (Supp. App. K, SA 17): a 16 The Judgment redresses the deprivation of a right, privilege or immunity secured to appellees by the law of the United States, specifically the second sentence of 42 U.S.C. § 7543(a), securing appellees in the federal privilege or immunity of acquir[ing] tag and title free of any condition precedent imposed by the state by way of certification, inspection or other approval. Sge Maine v. Thiboutot, 448 U.S. 1, 4, 100 S.Ct. 2502, 65 L.Ed.2d 555, 559 (1980). The in banc opinion states, “All other pending motions [other than the renewed motion to add Mr. Brantley as a party] are denied.” 862 F.2d at 1460, fn. 16 [The quoted sentence was omitted in the State’s printing of that footnote in App. A to the petition in No. 88-1950, A50.} The mandate issued by the Court of Appeals on March 13, 1989, App. C, A218, states: “IT IS FURTHER ORDERED that each party bear their own costs on appeal.” a — REASONS FOR GRANTING THE WRIT A. The Eleventh Amendment Question. “Whom the Gods would destroy, they first make mad.” Longfellow, The Masque of Pandora. It is not recorded whether Longfellow spoke of Elev- enth Amendment doctrine itself, or rather of hapless judges and lawyers caught in its snares. But if the Court were inclined to take an appropriate case in a further effort to separate the legitimate in this 17 doctrinal heritage from the exquisitely nonsensical, this may be the case. The Court might ask one of the fundamental ques- tions: whether, considering the claim of right and the relief sought, someone like Defendant Jim Smith, Attor- ney General, or Mr. Brantley, should be considered essen- tial in the first place, for authority-stripping. No genuine sovereign interest of the State of Florida was implicated in this action. Giving Hans v. Louisiana, 134 U.S. 1 (1890), all the deference its survival through history has earned, no sovereign interest of a State is compromised when one of its citizens (to whom the Eleventh Amendment itself addresses no message) asks a federal court to declare to the State, present through such agencies or officers as the State shall dispatch to court, that a certain piece of legis- lation unconstitutionally arrogates to the State’s own superintendence federal law and policy that lie beyond the State’s “sovereign” power to superintend. It impugns no genuine sovereign interest of a State when one of its citizens asks a federal court to declare simply what Congress has declared in law, for example the Clean Air Act: “No state shall... .” The customary prohibitory injunction might be withheld in deference® 9 The Eleventh Circuit panel decision, deciding the case despite the Department’s objection, and remanding for consid- eration 3f joining a surrogate individual official, might have been rationalized in these terms. The panel mentioned the District Court's declaratory relief as for the most part affirmed — the court’s “finding” and “ruling” — but said nothing of the pro forma injunction. 832 F.2d at 1570, App. B1, A153. ee a _§_éja ______——_—— 18 to sovereign dignity until some State agent, truly ultra vires, gives cause for issuing the writ directed by name to him personally; but naming the State at the outset, as the party defendant interested as no one doubts, impugns no genuine sovereign interest cf the State. No money damages were sought in this case. There is no incursion of any sort into the State Treasury. No man- datory injunction was sought such as might directly or indirectly require Treasury expenditures. There is no fis- cal element whatever. This alone dissipates much of the power that history has added to the sovereign immunity enibodied in the Eleventh Amendment. This is no Chisolm v. Georgia, 2 Dall. 419 (1793), nor a Hans v. Louisiana, 134 U.S. 1 (1890). There is no retroactive award of damages, Edelman v. Jordan, 415 U.S. 651 (1974), not even a refund, Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459 (1945). The relief sought has no ancillary ten- dency, even, to command State funds. Quern v. Jordan, 440 U.S. 332 (1979). No close investigation is called for, as recently in Pennsylvania v. Union Gas Co., __U.S.__ (1989), whether Congress can and has abrogated the fiscal immunity of States from federal court suits of certain sorts. Eleventh Amendment doctrine can properly be “understood as premised on a prudential balancing of state and federal interests.” Pennsylvania, supra,___ at __, fn. 3 (Stevens, J., concurring). It is a daunting task to describe what genuine sovereign interest a State may have against merely prophylactic judicial remedies, deployed in aid of the most basic federal principle. But the sovereign interest of the United States in its judiciary a 19 speaking clearly and directly to its State partner in feder- alism, is beyond cavil. Congress said to Florida in the Clean Air Act, “No state or any political subdivision thereof shall adopt. .. .” That there was a misguided if not defiant act is clear; but it was not Mr. Brantley who “adopted” that prohibited law, nor Jim Smith, Attorney General. The State itself adopted that law. The Court may find it desirable to consider anew why, in such a case, the sovereign interest of the United States can judicially be uttered only to a surrogate or messenger — official human beings, not official departments. The Court may think it more profitable to consider what really is constitutionalized by the Eleventh Amend- ment. The typical Eleventh Amendment faux pas, in a case where it need not be a bar, is said to be “the rare case in which a plaintiff foolishly attempts to sue the State in its own name.” Pennhurst State School & Hospital v. Halder- man, 465 U.S. 89, 116 (1984). But it is not suing the State in its Own name that is constitutionally anathematized. Where plaintiff’s federal suit is otherwise defensible, as by authority-stripping allegations against an officer in his “official capacity”, suing “the State in its own name” also is not only permissible; in the Eleventh Circuit, if plaintiff wishes to predicate a § 1988 fee award upon prevailing against the surrogate, suing “the State in its own name” is essential. Glover v. Alabama Dept. of Corrections, 734 F.2d 691, 695 (11th Cir. 1984), vacated on other grounds, 474 U.S. 806 (1985), on remand, 776 F.2d 964 (11th Cir. 1985), 20 conforming to Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 3106, 87 L.Ed.2d 114 (1985).1° Cross-petitioners Sims and FICA, invoking the prayer of their Complaint for “such other and further relief as may be proper” (Supp. App. A, SA 5), indeed claimed § 1988 attorney’s fees in the Court of Appeals, and they would claim them in this Court, against a prop- erly joined defendant: petitioner State of Florida, Depart- ment of Highway Safety and Motor Vehicles. What is constitutionalized by Eleventh Amendment doctrine, therefore, in a suit for prospective relief against a State statute offending supreme federal interests and a direct command by Congress, is not the agency’s “sover- eign immunity” against suit in its own name, but some- thing else. What is constitutionalized, it seems, is a perceived necessity for ceremonial authority-stripping, Ex Parte Young, and a proper personage for the leading role. 10 Glover's Eleventh Circuit policy, 734 F.2d at 695, con- formed to the personal/official dichotomy of Kentucky v. Graham, 473 U.S. at 167 fn. 14 (“Thus, implementation of state policy or custom may be reached in federal court only because official-capacity actions for prospective relief are not treated as actions against the State. See Ex Parte Young... .”) is: [W]e hold that, even if otherwise immune, the govern- mental entity must be joined in the suit for purposes of the attorney’s fees determination before it may be held liable for attorney’s fees. . . [W]e hold that this policy shall be applied as a rule of this Circuit to all cases filed after the date of this opinion. 21 So imbued with authority-stripping were the in banc dissenters below, and with a perceived constitutional necessity for a human/official party defendant, that they characterized the Court’s joinder of Mr. Brantley as a substitution of Brantley for the Department: “the majority, acting sua sponte [sic], simply substitutes an individual — the director of the Department - for the State as the party defendant... .” 862 F.2d at 1469, App. A, A95; see also fn. 8 supra. There was of course no substitution. A court-ordered substitution would have warred against that Court’s own sound Glover policy, supra fn. 10, that any § 1988 attor- ney’s fee claim such as Sims and FICA made must be predicated by first joining the State agency as a named party defendant. That policy implements, in a straightfor- ward way, Hutto v. Finney, 437 U.S. 678, 699 (1978), which awarded § 1988 fees against an absent agency whose interests the Court found adequately “present” in its counsel, the State Attorney General.?! All this ruckus, joinder versus substitution, results from Eleventh Amendment doctrine that is too exquisite for mortal minds, which though useless in any practical sense excites a certain passion. (Never mind that Florida 11 Hutto, 437 U.S. at 699: “Although the Eleventh Amend- ment prevented respondents from suing the State by name, their injunctive suit against prison officials was, for all practi- cal purposes, brought against the State. The actions of the Attorney General himself show that. His office has defended this action since it began.” 22 refuses federally-mandated tags and titles, let’s talk Elev- enth Amendment.) Justice Scalia’s words in another con- text are apt here: “that principle is too much at war with itself to endure.” Pennsylvania v. Union Gas Co., US. __, ___ (1989) (Scalia, J., dissenting in part). Perhaps, after taking the case for decision, the Court will conclude as did the in banc dissenters, evidently, that counsel for Sims and FICA were “foolish” (acknowledg- ing Pennhurst’s scolding) to acquiesce in the request by “defendants”, through Deputy Attorney General Mitchell D. Franks, Supp. App. B, SA 7, to drop defendant Jim Smith, as Attorney General, as a named party. Perhaps it was decisively “foolish” not to expect the Court of Appeals to invite the Attorney General (the State?) to change his (its?) mind about the need for an authority- stripping ceremony; and not to expect “due process” objections to nominally borrowing the Attorney General’s name again, or Mr. Brantley’s. In that event, the Court would wipe away five full years of judicial work, as the Attorney General now urges. Perhaps, however, the Court would choose to craft a healthy waiver doctrine making all this distraction unnec- essary: waiver, when an Attorney General does not promptly insist on a party-presence for authority-strip- ping in a prospective-relief federal-question suit. In such a case, that ceremony is the only residue of sovereign immunity. The Court’s “waiver” jurisprudence is bound at present to damage-suit cases and their equivalent, honoring State treasuries. E.g., Ford Motor Co. v. Depart- ment of Treasury of Indiana, 323 U.S. 459, 467 (1945); Edel- man v. Jordan, 415 U.S. 651, 678 (1974). 23 Without a reliable waiver doctrine, the federal judi- cial process is put at considerable risk in service of cos- metic values. In an adversary system the parties ordinarily define the issues according to an orderly schedule in the trial courts. When for whatever reason a State Attorney General does not covet and timely demand authority-stripping, it seems no affront to the State to suggest that the time for that ceremony, of such dubious value, passed with the State’s filing of an answer omitting an Eleventh Amendment defense to the federal questions stated by the complaint (Supp. App. B, SA 6-7). The need for a more reliable waiver doctrine is illus- trated by this Court’s experience in Sosna v. Iowa, 419 U.S. 393 (1975),!2 written by then Justice Rehnquist, and Patsy v. Florida Board of Regents, 457 U.S. 496 (1982), by Justice Marshall. Both cases arose in the federal system and were potentially subject, therefore, to interposition of an Elev- enth Amendment sovereign immunity defense. Both cases came to this Court without such a defense, but with rumors and intimations of same. In each case, after taking note of the potential impediment to speaking at all, the Court decided the merits issues and let any latent sover- eigi: immunity question pass for later disposition by an inferior court. 12 Sosna speculated in a footnote that lowa perhaps waives its sovereign immunity by appearing to defend on the merits, citing McKeown v. Brown, 167 lowa 489, 499, 149 N.W. 593, 597 (1914). The Iowa decision applied common-law waiver princi- ples (no Iowa statute) to a state court lawsuit, and said nothing about waiving Iowa’s Eleventh Amendment sovereign immu- nity to suit in a federal] court as in Sosna v. Iowa. 24 In one of them, Patsy, Justice Marshall noted that the Florida Board of Regents “expressly requested that we [the Court] address the exhaustion question and not pass on its potential Eleventh Amendment immunity... .” Patsy, 457 U.S. 496, 515 fn. 19 (1982). This request was voiced to the Court by Florida Assistant Attorney Gen- eral Mitchell D. Franks, who briefed and argued the case. 457 U.S. at 497, 102 S.Ct. 2557, 2558, 73 L.Ed.2d 172, 176, 1450. That was the same Assistant Attorney General Mit- chell D. Franks who answering for “the defendants” in this case demanded that Jim Smith, as Attorney General, be dropped as a named party defendant. Supp. App. B, SA 6-7. It was the demand by Mr. Franks that deprived the Court of Appeals of a principal for an authority- stripping ceremony — Jim Smith, as Attorney General. The question then occurs, if in Patsy, having solicited a ruling on “the exhaustion question” despite a latent Eleventh Amendment defense, Assistant Attorney Gen- eral Mitchell D. Franks did not then admire the ruling he received from the Court, would the Board of Regents speaking through the Attorney General have been per- mitted to obliterate that ruling and the entire case by incanting “sovereign immunity” in a petition for rehearing? That precisely is how the Attorney General wishes to dispose of District Judge Stafford’s judicial labor in 1985, and three more years of labor by the Court of Appeals - not to mention the humble efforts of Sims and FICA, and their uncompensated counsel, to vindicate these small claims under the Constitution and laws. oot on Sai oa 25 Ironically enough, the one redeeming virtue of authority-stripping doctrine in this case is that the restored presence of an official Florida “person” satisfies the § 1983 condition for a § 1988 fee award against the State. Part B, infra. There are several reasons, then, why this Court might consider this case a special opportunity for useful work on Eleventh Amendment sovereign immunity doctrine. B. The § 1988 Attorney’s Fee Question. The Court of Appeals apparently denied the fee motion of Sims and FICA!? and mandated that “each party bear their own costs on appeal,” App. C, A218, though the Court did not address the matters of law involved in the fee motion.'4 The Question might ordinarily follow the merits, but to bring the matter clearly to the Court’s attention cross- petitioners submit their Fee Question not as indepen- dently requiring conflict review — no court of appeals has 13 “All other pending motions are denied.” 862 F.2d at 1460, fn. 16 (sentence omitted in No. 88-1950 petition, App. A, A50 fn. 16). 14 As § 1988 fee petitions normally are filed and taken up on remand after claimant has “prevailed” on appeal, Solomon v. City of Gainesville, 796 F.2d 1464 (11th Cir. 1986); Clients’ Coun- cil v. Pierce, 778 F.2d 518 (8th Cir. 1985); Consolidated Freight- ways Corp. of Del. v. Kassel, 556 F.Supp. 740 (S.D. Iowa 1983), aff'd, 730 F.2d 1139 (8th Cir. 1984), cert. denied, 469 U.S. 834, a mandate in these terms might not preclude a fee application on remand, except for cross-petitioners’ submission of a fee motion to the Court of Appeals. 26 squarely held what we here urge - but as so intimately related to any Eleventh Amendment Question the Court may accept as to be fairly included in the disposition of that Question. Preserving the Fee Question is, of course, of some moment to cross-petitioners and their counsel as they commit themselves now to any proceedings this Court shall order.!5 The Fee Question is particularly related to the Elev- enth Amendment Question in this case because it is an element of both that The Clean Air Act expressly forbids what the Florida Legislature has enacted in the statute at hand. 42 U.S.C. § 7543(a): No state or any political subdivision thereof shall adopt or attempt to enforce any standard relating to the control of emissions from [the subject vehi- cles] . . . No state shail require certification, inspec- tion, or any other approval relating to the control of emissions from any [subject vehicle] . . . as condition precedent to the initial retail sale, titling (if any), or registration of such motor vehicle, motor vehicle engine, or equipment. In one respect the language of 42 U.S.C. § 7543(a) expresses the extent of its preemption of state law, or — to 15 It should be obvious also that cross-petitioners Sims and FICA are able to persevere before this Court, as they did for three years in the Court of Appeals, only in prospect that their fee claim will be addressed on the merits and decided. Their uncompensated counsel otherwise is indentured to the con- tinuing debate over the Eleventh Amendment. A Mime Goet SPE 2 27 the same effect, in terms of the dormant Foreign Com- merce Clause —- it specifies how far into the state’s potential regulatory domain these imports shall be deemed to remain imports, subject exclusively to federal control. But the quoted language does more than simply draw the boundary between federal and state regulatory authority. [The Supremacy and Commerce Clauses do not of their own effect create fee entitlements under 42 U.S.C. § 1983 and 1988. See Chapman v. Houston Welfare Rights Organization, 441 U.S. 600 (1979); White Mountain Apache Tribe v. Williams, 810 F.2d 844 (9th Cir. 1984).] More so than in any case of preemption by the effect of Congressional action, the quoted Act explicitly forbids any state “certification, inspection, or approval” require- ment “as condition precedent to the initial retail sale, titling (if any), or registration”; and the Act expressly secures affected citizens in a corresponding right, privi- lege or immunity against State action of the sort forbidden. As a claim against Mr. Brantley, an official restored in the place of Attorney General Smith, this claim is cogniz- ible under 42 U.S.C. § 1983, see Will v. Michigan Depart- ment of State Police, __U.S.__, at fn. 10 June 15, 1989), and is remediable by a § 1985 fee award against the State. Hutto and Glover, supra p. 21. The Question cross-petitioners would present, -there- fore, is a stronger version of the question reserved by the Ninth Circuit in White Mountain, 810 F.2d 844, 850 fn 8: We emphasize that we are not dealing with a case where state action is in actual conflict with the explicit provisions of federal law. Therefore, we need not reach the question whether a Supremacy Clause 28 claim might give rise to a § 1983 action where pre- emption was based on such actual conflict. Here we deal only with preemption based on federal occupa- tion of the field and conflict between state law and federal goals and policies. The Clean Air Act otherwise secures the payment of attorney fees in actions to enforce its provisions. E.g., Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 483 U.S. __, 107 S.Ct. 3078 (1987). The Court should decide whether, by the effect of § 7543(a) as well, the Clean Air Act secures privileges and immunities to importers for which a vindicating fee award may be made when they prevail against the State and the “per- son” who is its surrogate. a — CONCLUSION The Court is respectfully urged to grant the Cross- Petition if any question presented by the Petition is deemed worthy of consideration. Respectfully submitted, Ropert P. Smit, Jr. Counsel of Record Cecevtia C. SMITH 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314 (904) 222-7500 For cross-petitioners. June 30, 1989 i - ane “2 Fg = Rae tal RE Ng a te BK APPENDIX TABLE OF CONTENTS Page United States District Court, Northern District of Florida Original Complaint, Supp. App. A.............. SA 1 Answer by Defendant, Supp. App. B............ SA 6 Motion to Drop Attorney General as Party, Supp. App. C..... SA 8 Order Dropping Attorney General as Party, Supp. App. D..... SA 9 United States Court of Appeals for the Eleventh Circuit Court of Appeals Letter to Counsel Feb. 18, 1987, Supp. App. E..... . SA 10 Objection by Appellees sums & FILA, Supp. App. F ...... <2. 6.65550. SA 11 Appellees’ Motion to Add Charles Brantley as Party, Supp. App. G...... SA 12 Order on Objections, Supp. App. H............. SA 13 Order on Motion, Supp. App. I................. SA 14 Excerpt, In Banc Brief of Appellees Sims and FICA Before Court of PAs I ie Fee i kane ag ry cee ns SA 15 Excerpt, In Banc Brief of Appellees Sims and Fica Before Court of PDDON, DUO. POT: Te ooo on nc bes cde ties SA 16 SA 1 SUPP. APP. A - ORIGINAL COMPLAINT UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION MYRA HOLLADAY SIMS and FLORIDA IMPORT AND COM- PLIANCE ASSOCIATION, an unincorporated association, Plaintiffs, NO. 84-7214-WS VS. STATE OF FLORIDA, DEPART- MENT OF HIGHWAY SAFETY AND MOTOR VEHICLES and JIM SMITH, ATTORNEY GEN- ERAL OF THE STATE OF FLORIDA, Defendants. Nee Nee ee” COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF (Filed July 25, 1985) MYRA HOLLADAY SIMS and FLORIDA IMPORT AND COMPLIANCE ASSOCIATION, plaintiffs, for their Complaint against STATE OF FLORIDA, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, and JIM SMITH, ATTORNEY GENERAL OF THE STATE OF FLORIDA, defendants, allege: 1. This civil action arises under the Constitution and laws of the United States, 28 U.S.C. § 1331, for a declaratory judgment and injunctive relief, 28 U.S.C. § 2201, 2202, in that: (a) Plaintiffs seek relief against defendants to pre- vent their further attempts to enforce Section 320.02(9), Florida Statutes (Supp. 1984), which provides: SA 2 (9) Before a motor vehicle which has not been man- ufactured in accordance with the federal Clean Air Act and the federal Motor Vehicle Safety Act can be sold to a consumer and titled and registered in this state, the motor vehicle must be certified by the United States Customs Service or the United States Department of Transportation and the United States Environmental Protection Agency to be in compli- ance with these federal standards. A vehicle which is registered pursuant to this subsection shall not be titled as a new motor vehicle. + oa * Parties. * * * 4. Defendant State of Florida, Department of High- way Safety and Motor Vehicles, is the department of state government principally charged to enforce the laws of the State of Florida pertaining to the sale, titling and registra- tion of automobiles, including § 320.02(9), Florida Stat- utes (1984 Supp.). Defendant Jim Smith is Attorney General of the State of Florida, who is joined as a party defendant in order that he may be heard, agreeably to § 86.091, Florida Statutes (1983), and Rule 5(B) of this Court. Statement of the claims. * + * Count I: Federal Preemption. 9. The Clean Air Act, 42 U.S.C. § 7543, by virtue of the Supremacy Clause of the United States Constitution, preempts to the United States Congress and to EPA and SA 3 Customs Service the establishment and enforcement, through the point of first sale in the United States, of motor vehicle emission standards of the character autho- rized by the Clean Air Act. The State of Florida is pre- empted from any such enforcement, as by requiring certification or approval by a any official as a condition to the first sale, titling, and registration of such automobiles in the State of Florida... . * * * 12. By Florida’s attempted enforcement of its stat- ute, the-federal agencies having exclusive responsibility to enforce the Clean Air Act and Vehicle Safety Act are ousted from their discretionary powers to select one effective method of enforcement rather than another; plaintiff Sims and other individual importers are seri- ously and irreparably damaged in the deprivation of their property, its titling, registration, and effective use; plain- tiff FICA’s members who business depend on titling and registering such automobiles are irreparably damaged; and the flow of foreign commerce is substantial and unjustably impeded. Unless restrained and enjoined, the defendants will continue so to enforce those unlawful and preempted restrictions against plaintiffs and others. Count II: Commerce Clause Unconstitutionality. 13. An important part of the commerce of the Uniied States with foreign nations is the importation of automobiles manufactured to foreign standards of emis- sion and safety, for conversion and compliance modifica- tion and testing to United States standards and for delivery to importers. That foreign commerce has SA 4 increased manyfold in recent years, due in part to the great relative buying power of the American dollar in foreign countries, and due also to foreign manufacturers and their franchised dealers in the United States main- taining high retail sale prices, relative to their costs of manufacture overseas, for automobiles originally manu- factured to United States emission and safety standards. In consequence, importers and owners of automobiles not originally manufactured to such standards, but modified and converted to comply with those standards, compete favorably with franchised dealers in the retail market, thus promoting foreign commerce in those automobiles. * * * 17. Plaintiff have been and will continue to be dam- aged, as alleged in paragraph 12, unless defendants are enjoined from their enforcement of Florida Statute § 320.02(9). Count III: Unconstitutional by reason of Art. I, Sec. 3, Constitution of Florida. * * * 19. Florida’s statute § 320.02(9) violates Art. I, Sec. 3 of the Constitution of the State of Florida in that it pur- ports to delegate such standard-setting power as may remain to Florida, exercisable only by its legislative branch, to officials in the executive branch of the Federal government. 20. Plaintiff have been and will continue to be dam- aged, as alleged in paragraph 12, unless defendants are SA 5 enjoined from their enforcement of Florida Statute § 320.02(9). WHEREFORE, plaintiffs pray for: 1. A declaratory judgment that § 320.02(9), Florida Statutes (1984 Supp.), is preempted as alleged in Count I, or unconstitutional as alleged in Count IJ, or unconstitu- tional as alleged in Count II]; 2. A preliminary and a permanent injunction against the defendants, enjoining their further enforce- ment and attempts to enforce the Florida statute; and 3. Such other and further relief as may be proper. (Counsel’s signature omitted) SA 6 SUPP. APP. B - ANSWER BY DEFENDANTS UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION MYRA HOLLADAY SIMS and FLORIDA IMPORT AND COM- PLIANCE ASSOCIATION, an CASE NO. 85-7214-WS unincorporated association, Plaintiffs, Vs. ae STATE OF FLORIDA, DEPART- MENT OF HIGHWAY SAFETY AND MOTOR VEHICLES and JIM SMITH, ATTORNEY GEN- ERAL OF THE STATE OF FLORIDA, Defendants. / _ ANSWER (Filed Aug. 19, 1985) The Defendants, by and through their undersigned counsel, hereby file their answer to the Plaintiffs’ com- plaint for deciaratory and injunctive relief, stating as follows: 1. The Defendants admit that part of Paragraph 1 that states the jurisdiction of this Court, and the reason the Plaintiffs are seeking relief against the Defendants. However, the Defendants deny the remaining allegations of Paragraph 1.... * * * 4. The Defendants admit the allegations of Para- graph 4, but by stipulation in open court, the parties SA 7 agreed that Jim Smith, Attorney General, should not be a named party defendant to this action. * * * AFFIRMATIVE DEFENSES First Affirmative Defense This case must be dismissed for failure to add an indispensable party, the United States Government. Second Affirmative Defense The Cause fails to state a claim upon which relief may be granted. Third Affirmative Defense Count III of this action is barred by the Eleventh Amendment of the United States Constitution. Respectfully submitted, JIM SMITH ATTORNEY GENERAL /s/ Mitchell D. Franks Chief Trial Counsel /s/ Walter Meginnis Assistant Attorney General /s/ Eric J. Taylor Assistant Attorney General Department of Legal Affairs Suite 1501 - The Capitol Tallahassee, FL 32301 (904) 488-1573 SA 8 /s/ Michael Alderman Assistant Generali Counsel Department of Motor Safety Vehicles Kirland Building Tallahassee, FL 32301 (904) 488-1606 SUPP APP. C - MOTION TO DROP ATTORNEY GENERAL AS PARTY UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION NO. 85-7214-WS * * * MOTION TO DROP DEFENDANT SMITH, ATTORNEY GENERAL, AS A PARTY (Filed Aug. 19, 1985) Plaintiffs Sims and Florida Import and Compliance Association move the Court to drop as a party to this cause defendant Jim Smith, as Attorney General of the State of Florida. Rule 21, F.R.C.P. Inasmuch as the Attor- ney General was named a party only to afford him the opportunity to be heard if he chose with party status, and the Attorney General has expressed a preference that he not be a named party, plaintiffs have not effected service upon the Attorney General. It is, therefore, appropriate that the Attorney General be dropped as a named party in this matter. The Attorney General and defendant SA 9 Department of Highway Safety and Motor Vehicles have no objection to the granting of this motion. (signature of Counsel omitted) SUPP. APP. D - ORDER DROPPING ATTORNEY GENERAL SMITH AS PARTY UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION NO. 85-7214-WS * * * REFERRAL AND ORDER Referred to Chief Judge Stafford on August 19, 1985. Type of Motion/Pleading Motion to Drop Defendant Smith, Attorney General as a Party. ORDER OF COURT It is ORDERED this 29th day of August, 1985. The relief requested above is granted. /s/ William Stafford WILLIAM STAFFORD CHIEF JUDGE SA 10 SUPP. APP. E - COURT OF APPEALS LETTER TO COUNSEL FEB. 18, 1987 (letterhead) United States Court of Appeals Eleventh Circuit February 18, 1987 TO ALL COUNSEL OF RECORD Dear Counsel: Re: No. 86-3055, Sims v. State of Florida The court requests supplemental briefing on the fol- lowing issues: .. . . (4) if the appellees do have standing to bring this challenge to the Florida statute, is their claim barred by the eleventh amendment of the United States Constitution; and... ? The court is concerned about the standing of appel- lees to bring this action, about Florida’s sovereign immu- nity under the eleventh amendment, and about the possible mootness of appellee Sims’ claim. Although these issues were not raised on appeal by the appellant, the court is obliged to address them sua sponte. See, e.g., Bender v. Williamsport Area School Dist.,__.§. U.S. __, __, 106 S.Ct. 1326, 1331 (1986) (“[E]very federal appellate court has a special obligation to ‘satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review,’ even though the parties are pre- pared to concede it.”) (quoting Mitchell v. Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 165 (1934)); Juidice v. Vail, 430 US. 327, 331, 97 S.Ct. 1211, 1215 (1977) (“Although raised by neither of the parties, we are first obliged to examine the SA 11 standing of appellees, as a matter of the case-or-contro- versy requirement associated with art. III, to seek injunc- tive relief in the District Court.”); Sosna v. Iowa, 419 U.S. 393, 396 n.2, 95 S.Ct. 553, 555-56 n.2 (1975) (Supreme Court addressed sovereign immunity question although it was not raised by the parties). (signature of Clerk omitted) SUPP. APP. F - OBJECTION BY APPELLEES SIMS & FICA UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT CASE NO. 86-3055 * * * OBJECTION BY APPELLEES MYRA HOLLADAY SIMS AND FLORIDA IMPORT AND COMPLIANCE ASSO- CIATION TO CERTAIN INTERLOCUTORY RULINGS AND ACTIONS BY 1HE COURT (Filed in Court of Appeals Mar 27, 1987) Plaintiffs and appellees Myra Holladay Sims and Florida Import and Compliance Association respectfully object to the following interlocutory rulings and actions by this Court: SA 12 2. They object to the Court raising sua sponte, as if it were a jurisdictional defect of which the Court was obliged to take notice, an “Eleventh Amendment Defense” that was not previously raised by the only party entitled to raise it, State of Florida, Department of High- way Safety and Motor Vehicle. “[W]e have never held that it [the Eleventh Amendment defense] is jurisdic- tional in the sense that it must be raised and decided by this Court on its motion.” Patsy v. Florida International University, 457 U.S. 496, 515 fn. 19, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982). The Court’s communication dated February 18 was in effect a solicitation of such a defense, which appellant Department now has asserted. * * * (signature of Counsel omitted) SUPP. APP. G - APPELLEES’ MOTION TO ADD CHARLES BRANTLEY AS PARTY UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT CASE NO. 86-3055 * * * MOTION OF PLAINTIFFS AND APPELLEES MYRA HOLLADAY SIMS AND FLORIDA IMPORT AND COM- PLIANCE ASSOCIATION TO ADD CHARLES J. BRANTLEY AS PARTY DEFENDANT AND APPELLANT (Filed Mar 27, 1987) Plaintiffs and appellees Myra Holladay Sims and Florida Import and Compliance Association, an unincor- insta sicedeecadeeeaeeaniliaeiinaccaail SA 13 porated association, move the Court to add as a party defendant and appellant on such terms as are just, or temporarily to relinquish jurisdiction to the District Court that it may do so, Charles J. Brantley, Director of the Division of Motor Vehicles, Florida Department of High- way Safety and Motor Vehicles. Fed. R. Civ. P. 21. (signature of Counsel omitted) SUPP. APP. H - ORDER ON OBJECTIONS UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT CASE NO. 86-3055 ORDER (Filed May 26, 1987) Before TJOFLAT and HATCHETT, Circuit Judges, and EATON*, Senior District Judge. BY THE COURT: Appellees’ objection to certain interlocutory rulings and actions by the court is DENIED. *Honorable Joe Eaton, Senior U. S. District Judge for the South- ern District of Florida, sitting by designation. SA 14 SUPP. APP. I - ORDER ON MOTION UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT CASE NO. 86-3055 ORDER (Filed May 26, 1987) Before TJOFLAT and HATCHETT, Circuit Judges, and EATON’, Senior District Judge. BY THE COURT: Appellees’ motion to add Charles J. Brantley as a party defendant-appellant to the above case is DENIED. Further, appellees’ alternative motion to temporarily relinquish jurisdiction to the U. S. District Court that it may add Charles J. Brantley as a party defendant is DENIED. *Honorable Joe Eaton, Senior U. S. District Judge for the South- ern District of Florida, sitting by designation. SA 15 SUPP. APP. J - EXCERPT, IN BANC BRIEF OF APPEL- LEES SIMS AND FICA BEFORE COURT OF APPEALS, PAGE 48. (Filed May 2, 1988) + * * D. THE ATTORNEY GENERAL SHOULD BE RESTORED AS A PARTY OR MR. BRANTLEY SHOULD BE JOINED TO CURE ANY ELEV- ENTH AMENDMENT IRREGULARITY. The panel majority, noting the inequity of honoring the State’s “untimely and compelled assertion of the sov- ereign immunity defense,” op. at 684, was disposed to remand to the district court the question of whether the Division’s Mr. Brantley should be joined. The dissenting judge did not differ in this, and noted a possible waiver issue. We respectfully request the same relief from the Court in banc. Patsy v. Board of Regents of the State of Florida, 457 U.S. 496, 515 n. 19, 102 S.Ct. 2557, 2567 n. 19, 73 L.Ed.2d 172 (1982). If the Court is disposed to resolve the matter here and now, it should be done by ordering the Attorney General restored as a party defendant. The Attorney Gen- eral has been “present” throughout these proceedings and has requisite to sue and be sued for the state. State ex rel. Shevin v. Exxon Corp., 526 F.2d 266, 275 (5th Cir. 1976). Young himself was Attorney General of Minnesota: Ex Parte Young, 209 U.S. 123, 160, 28 S.Ct. 441, 454, 52 L.Ed. 714 (1908). SA 16 SUPP. APP. K —- EXCERPT, IN BANC BRIEF OF APPEL- LEES SIMS AND FICA BEFORE COURT OF APPEALS, PAGES 48-50 (Filed May 2, 1988) * * * E. ATTORNEYS’ FEES SHOULD BE AWARDED SIMS AND FICA SHOULD THEY PREVAIL, FOR THE JUDGMENT REDRESSES A RIGHT, PRIVILEGE OR IMMUNITY SECURED BY THE CONSTITUTION AND LAWS. Sims and FICA respectfully renew before the Court in banc their motion filed September 1986 and denied by the panel, ops. p. 675 fn. 6, for award of attorneys’ fees pursuant to 42 U.S.C. §§ 1983 and 1988, and for leave to amend their complaint as necessary to claim that entitlement. The Division is the properly named defendant for this purpose. Glover v. Alabama Dept. of Corrections, 734 F.2d 691, 695-96 (11th Cir. 1984), vacated on other grounds, 473 U.S. __, 106 S.Ct. 40, 88 L.Ed.2d 33 (1985), on remand, 776 F.2d 964 (11th Cir. 1985). “{T]he right to attorney’s fees under § 1988 is not conditioned upon a judicial determination on the merits” of a claim remediable under § 1983. ] & ] Anderson, Inc. v. Town of Erie, 767 F.2d 1469, 1474 (10th Cir. 1985), summa- rizing Maher v. Gagne, 448 U.S. 122, 132, 100 S.Ct. 2570, 65 L.Ed.2d 653, 663 (1980). Any necessary amendment to make the attorney fee claim is a formality conforming to the proofs and district court findings. Brandon v. Holt, 469 SA 17 U.S. 464, 471 at n. 19, 105 S.Ct. 873, 83 L.Ed.2d 878, 885 (1985). The Judgment redresses the deprivation of a rignt, privilege or immunity secured to appellees by the law of the United States, specifically the second sentence of 42 U.S.C. § 7543(a), securing appellees in the federal privi- lege or immunity of acquire tag and title free of any condition precedent imposed by the state by way of certi- fication, inspection or other approval. See Maine v. Thiboutot, 448 U.S. 1, 4, 100 S.Ct. 2502, 65 L.Ed.2d 555, 559 (1980). Appellees’ claim is based too on the Equal Protection Clause of the Fourteenth Amendment, which the district court recognized sufficiently for this purpose by refer- ence to Florida having isolated these cars alone for dis- criminatory treatment, after discontinuing its general inspection program. “Section 1988 requires a strong showing of special circumstances to justify denying an award of attorneys’ fees and costs to the prevailing party in a section 1988 claim.” Riddell v. National Democratic Party, 624 F.2d 539, 543 (Sth Cir. 1980). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1642%3A1. Public record. Not legal advice.