Amicus Brief — Hutto v. Finney

No. 76-1660

—— —

Gn the Kupteme Gourt of the Unite States

Ocroszr ‘Term, 1977

Terreut, Don Hurro, Er at., PETITIONERS

u.

Rosert FINNEY, eT AL.

OW WRIT OF OBRTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT

mu FOR THE UNITED STATES AS AMICUS CURLAZ.

INDEX

Questions presented

Boston Chapter, N. A. C., ine. v. Beecher, 504 F. 2d

1017, certiorari denied, 421 U.S 910. ation

Bradley v. Richmond School Board, 416 U.S. 66

253804781

l

1¹

Cases oont inued

Brandenburger v. Thompson, 494 F. 2d 8888 6.18.21

Brown v. Board of Education, 347 U.S. 483 1%

Class v. Norton, 505 F. 2d 12333. 18, 20

Cornist v. Richland Parish School Board, 495 F. 2d 189. 6

Donohue v. Staunton, 471 F. 2d 475, certiorari denied,

410 U.S. 955... — 4 — —— 6, 11, 15, 16.

Edelman v. Jordan, 415 U.S. 661 9, 15, 16, 17, 18

* v. Missouri Public Health Dept., 411 U.S.

——— 11

. Industrial Lumber Co. 417 UB-116- 5

Fairmont Creamery Oo. v. Minnesota, 275 U.S. 70. . 16, 19

Finney v. Arkansas Board of Correction, 505 F. 2d 197,

affirming in part and reversing in part Holt v. Hutto,

363 F. Supp. 194. Sa enn

Fitepatrick v. Buser 4 US. 66. 9, 10, 11, 14, 19

Fowler v. Schwarmwalder, 408 F. 2d 143. 1 6

Gates v. Collier, 669 F. 2d 24 12

Gary . V. State of-Lowisiana,429 F. een — 2

Goutreaua v. Hille, 425 U8. 284 1 12

Goldberg v. Kelly, 891 U.. 284 rave YF.

Graham v. Richardson; 408 U.S. 868 — 15, 17

Great Northern Life Ins. Oo. v: Read, 322 U.S. 47 11

Guajerdo v. Betelle; 402 F. Supp. 1378 — 8B

Hull v. Cole, 412 U.. 1 1

Hane v. Loui, 184 U.. 1 11

Hicks v. Hirne U.S. 882 21

Holt v. Hutto, 900 F. Supp. 194 pode 4

Holt v: Sarver, yp. B62, affirmed, 442 F. 2d 304_ 4

Jordan v. Fusari,496 F. 18.

Jordon v. Gilligan, 500 F. a 701, certiorari denied,

421 US. 991 — 18,21

Laa Unida of Southern Alameda Cownty v. Vople,

green

Pi gag oy aR ee 6

Monroe v. Pape, 365 U. & 10. 14

Murgla v. Mase. Bd. of Retirement, 876 ; 768,

* . = 179, 2 at US. 9 .

“en . " — . 2 o *? atu

Named Individual Members of San Antonio Conser-

vation Society v. Teras Highway Dist., 496 F. 2d

pT ee —j————————— 19

Newmann v. State of Alabama, 52 F. 2d 71. — 21

O'Connor v. Donaldson, 422 U.S. 568 — 20

Parden v. Terminal R. Co., 377 U.S. 184—— 11

Rainey v. Jackson State College, 551 F. 2d 72 —— 12

Shannon v. United States Department of Housing and

Urban Development, 433 F. Supp. 249...--.-----. 12

Sims v. Amos, 340 F. Supp. 691, affirmed, 400 U.S, 942. 18,

20, 21

Skehan v. Board of Trustees of Bloomaburg State Col-

— 501 F. 2d 31, vacated and remanded, 421 U.S.

Shehen v. Board of Trustees of Bloomaburg State Col-

lege, 436 F. Supp. 657....--..-----------ne----- 12

Souza v. Travisono, 512 F. 2d 1137, vacated, 423 U.S.

80 —— — —— — — — 6, 18, 19, 20

* Defense Group v. Adams, 436 F. Sapp.

— ß . 9ũ—9ß2 12

— v. Ticonic Bank, 307 U.S. 161—— 19

Taylor v. Perini, 503 F. 2d 899, vacated and remanded,

421 U.S. 802.....~..- — 1 08, 81

Tonen v. Jenkins, 517 F. 2d 3. ng,

Trafficante v. Metropolitan Life Inaurumce Co, 400

US. 205 —— ————— ——— — — 3

U nited States v. Donaldson, 429 U.S. 413.----.--.- 15

Vaughan u. Atkinson, 260 WS. A7 5

Wade v. Mississippi Coop. Botonsion Service, tat ¥.

1942........ — — 12

Wood v. Strickland, 420 U.. 808 —— —

Young, Ex parte, 200 U.S. 123. 9, 16, 17, 19, 20

Zurcher v. The Stanford Daily, No. 76-1484....-.. — 9,21

Constitution, statutes and rule:

United States Constitution :

Eleventh Amendment passim

Fourteenth yeas — Section 5...... 9, 10, 11,12, 15

Thirteenth Amendment 12, 15

Civil Rights Act of 1967, Title VII, 78 Stat. 253, as

amended, 42 U.S.C. (and Supp. V) 20000 ef seg.... 9-10

; at | | a

IV

Constitution, statutes and rule: continued

Civil Rights Attorney's Fees Awards Act of 1976, Pub.

4 ͥ ee 2,7

R.S. 1979, 42 U.S.C. 1983_............... 2, 3, 7-8, 9, 10, 14

42 U.S.C. 2—

a K

1 t—

e

Ark. Stat., 1947 § 12-712 (1968 Repl.))) 1

Ann. Cal. Gov. Code § 825 et seg. (West Cum. Supp.

83 —— ————— — 15

Miscellaneous :

121 Cong. Rec. S140 78 (daily ed., August 1, 1978) 7

122 Cong. Rec. H 12160 (daily ed., October 1, 1976) — 13-14

122 Cong. Rec. 816431816434 (daily ed., September

* e

S ————— — 12

122 Cong. Rec. $16656, 16657 (daily ed., September 27, *

DDr eins

H.R. Rep. No. 94-1558, 94th Cong., 2d Sess. (1976) — 13, 14

Note, Attorneys’ Fees and the Eleventh ‘Amendment,

88 Harv. L. Rev. 1875 (1975) .......-.....-...-.. 19

Notes and Comments, Civil Rights Attorneys’ Fees

Award Act of 1976, 34 Wash. L. L. Rev. 205 (1977). 8, 10

8. Rep. No. 94-1011, 94th Cong., 2d Sess. (1976) 7,

8, 10, 12-13

In the Supreme Gourt of the Hnited States

OcroBeR TERM, 1977

No. 76-1660

TerRELL Don Hurro, ET AL., PETITIONERS

v.

Ropert FINNEY, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE BIGHTH CIRCUIT

The United States will discuss the following

questions:

1. Whether the Civil Rights Attorney's Fees Awards

Act of 1976 authorizes an award of attorney's fees to

be paid from the funds of a state department of

correction.

2. Whether the Civil Rights Attorney’s Fees

Awards Act applies to cases pending on the date of

its enactment.

(1)

2

CONSTITUTIONAL PROVISION AND STATUTES INVOLVED

The Eleventh Amendment to the United States Con-

stitution provides as follows:

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.

The Civil Rights Attorney’s Fees Awards Act of

1976, Pub. L. 94-559, 90 Stat. 2641, provides as

foliows:

In any action or proceeding to enforce a

provision of sections 1977, 1978, 1979, 1980,

and 1981 of the Revised Statutes, 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 dis-

cretion, may allow the prevailing party, other

than the United States, a reasonable attorney’s

fee as part of the costs.

R.S. 1979, 42 U.S.C. 1983 provides as follows:

Every person who, under color of any stat-

ute, ordinance, regulation, custom, or usage, of

any State or Territory, subjects, or causes to

be subjected, any citizen of the United States

or other person within the jurisdiction thereof

to the deprivation of any rights, privileges, or

3

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

proceeding for redress.

The Attorney General has responsibility for en-

forcement of a variety of federal civil rights laws,

including those requiring nondiscrimination in voting

(42 U.S.C. 1971 et seq.), public accommodations (42

U.S.C. 2000a et seq.), public facilities (42 U.S.C.

2000b et seq.), public education (42 U.S.C. 2000¢

et seq.), federally assisted programs (42 U.S.C. 2000d

et seq.), public employment (42 U.S.C. 2000e et seq.),

and housing (42 U.S.C. 3601 et seq.). The private

suit is an essential means of obtaining judicial en-

forcement of civil rights statutes. Alezander v. Gard-

ner-Denver Co., 415 U.S. 36, 45; Trafficante v. Metro-

politan Life Insurance Co., 409 US. 205, 209.

Such suits will be encouraged if private plain-

tiffs suing state officials pursuant to 42 U.S.C. 1983

may be awarded attorney’s fees as provided in the

Civil Rights Attorney’s Fees Awards Act. Accord-

ingly, the United States has a substantial interest in

the proper interpretation of that Act.

This class action under 42 U.S.C. 1983 challenges as

unconstitutional the conditions of confinement for in-

mates of penal institutions administered by the

Arkansas State Department of Correction. Respond-

ents are inmates confined in these institutions; peti-

4

tioners include the Correction Commissioner, the mem-

bers of the Arkansas State Board of Correction, and

the Superintendents of the Cummins Unit of the De-

partment and the Tucker Intermediate Reformatory

(Pet. App. 17).

The district court here held the Arkansas prison

system unconstitutional in certain respects.’ The court

ruled, inter alia, that the conditions of confinement

for inmates placed in indefinite punitive isolation con-

stituted cruel and unusual punishment. The court

ordered the upgrading of the conditions of those

placed in punitive isolation and prohibited respond-

ents from confining any inmate in punitive isolation

for more than 30 days. The court awarded respondents

certain litigation costs, including an attorney’s fee of

$20,000, to be paid from funds allocated to the De-

partment of Correction. 410 F. Supp. 251 (Pet. App.

6-92).

On appeal, petitioners challenged the district court’s

rulings limiting the duration of sentences to punitive

isolation and awarding respondents attorney’s fees.

The court of appeals affirmed, and awarded respond-

ents an additional $2,500 in attorney’s fees for serv-

ices on the appeal. 548 F. 2d 740 (Pet. App. 1-6).

It acted pursuant to the court of appeals’ remand in Finney

v. Arkansas Board of Correction, 505 F. 2d 194 (C.A. 8), affirming

in part and reversing in part Volt v. Hutto, 363 F. Supp. 194

(E.D. Ark.). The earlier procedural history of this protracted

Pe ge) fy neg ely Sarver, 300 F. Supp. 825 (E.D.

Ar), and Holt v. Sarver, 309 F. Supp. 362 (E. D. Ark.), affirmed,

442 F. 2d 304 (C. A. 8).

5

Petitioners here contest both the 30-day limitation

on the use of indefinite punitive isolation and the at-

torney’s fees awards.“

INTRODUCTION AND SUMMARY OF ARGUMENT

Under the American Rule,” litigants ordinarily

pay their own attorney’s fees in the absence of statu-

tory or contractual provisions to the contrary. Acting

pursuant to their inherent equitable powers, federal

courts have recognized several exceptions to this rule.

The “‘bad faith” exception allows a court to shift at-

torney’s fees to a party found to have commenced an

action or asserted a defense in bad faith, vexatiously,

wantonly, or for oppressive reasons. F. D. Rich Co. v.

Industrial Lumber Co., 417 U.S. 116, 129; Vaughn v.

Atkinson, 369 U.S. 527, 530-531. And under the ‘‘com-

mon benefit” exception, the cost of litigation is spread

* We have not had access to the record in this case in sufficient

time to address the punitive isolation issue. On December 5, 1977,

this Court granted petitioners’ motion to dispense with the print-

ing of an appendix. The record was not filed with the Court until

253-804-_78 —_-2

among those who benefit from the lawsuit. Hall v.

Cole, 412 U.S. 1, 5 n.7; Mills v. Electric Auto- Lite Co.,

396 U.S. 375, 393-394. Under a third exception the

private attorney general” doctrine—federal courts

had awarded attorney’s fees to plaintiffs who were

suceessful in suits to enforce the provisions of federal

statutes. See, e. g., Souza v. Travisono, 512 F. 2d 1137

(C.A. 1), vaeated, 423 U.S. 809; Cornist v. Richland

Parish School Board, 495 F. 2d 189 (C.A. 5); Taylor

y. Perini, 503 F. 2d 899 (OC. A 6), vacated, 421 US.

982; Donohwe v. Staunton, 471 F. 2d 475 (C. A. 7),

certiorari denied, 410 U.S. 955; Fowler v. Schware-

walder, 498 F. 2d 143 (C. A. 8); Brandenburger v.

Thom pson, 494 F. 2d 885 (C. A. 9). The attorney’s fees

awards in such eases were made primarily on the

theory that the bringing of the litigation had imple-

mented a publie policy embodied in the substantive

statute at issue, and that, accordingly, the plaintiff

had performed a publie service in the capacity of a

“private attorney general.”

In Alyeska Pipeline Service Co. v. Wilderness

Society, 421 U.S. 240, the Court rejected the private

attorney general exeeption to the American Rule, in

the absence of statutory authorization. The Court re-

versed an award of attorney’s fees to organizations

that had instituted litigation to prevent issuance of

permits by the Secretary of the Interior which were

required for the construction of the trans-Alaska oil

pipeline. Although the Court endorsed the “bad faith”

and common benefit” doctrines, 421 U.S. at 258-259,

4

7

it ruled that the courts’ equitable powers would not

support an award of attorney’s fees to facilitate

private enforcement of federal statutory rights. The

Court stated that (421 U.S. at 269):

Ls Jinee the approach taken by Congress to

this issue has been to carve out specific excep-

tions to a general rule that federal courts can-

not award attorney's fees beyond the limits of

28 U.S.C. § 1923 [permitting the taxing as costs

of attorney's and proctor’s docket fees and cer-

party in federal litigation or to pick and

choose among plaintiffs and the statutes under

which they sue and to award fees in some cases

but not in others, depending upon the courts’

assessment of the importance of the public

policies involved in particular cases.

Congress passed the Civil Rights Attorney’s Fees

Awards Act of 1976, Pub. L. No. 94-559, 90 Stat.

2641, in response to this Court's decision in Alyeska.“

The Act permits a federal court, in its discretion, to

award reasonable attorney's fees to prevailing parties

in suits to enforce the provisions of a number of civil

rights statutes, including R. S. 1979 (42 U.S.C. 1983),

The Senate Judiciary Committee stated that the purpose of

the bill was to anomalous gaps in our civil rights laws

created by the United States Supreme Court's recent decision in

Alyeska * * *.” S. Rep. No. 94-1011, 94th Cong., dd Sean. 1, 4

(1976). Accord, 121 Cong. Ree. $14975 (daily ed., August 1, 1975)

(remarks of Senator Tunney).

pursuant to which this action was brought. The

Senate Report explains (S. Rep. No. 94-1011, supra,

at 2) that the Act:

is designed to allow courts to provide the fami-

liar remedy of reasonable counsel fees to pre-

vailing parties in suits to enforce the civil

rights sinee

depend

2

authorized the award of attorney's fees in this case, to

be paid from the funds of a state agency. The Act

specifically authorizes an award in cases—such as this

one—brought under 42 U.S.C. 1983. Defendants in

officials acting under color of state law, whose legal

defense ordinarily is provided by the State. Congress

not only intended the Act to authorize the award of

* See, generally The Civil Rights Attorneys’ Fees Awards Act

of 1076, 34 Wash. L. L. Rev. 205-223 (1977).

9

attorney s fees in such cases, but also specifically

from state funds. Since the Act is a valid exercise of

Congress's power under Section 5 of the Fourteenth

Amendment, it abrogates any Eleventh Amendment

joyed. Fitzpatrick v. Bitser, 427 U.S. 445. And, in any

event, under Edelman v. Jordan, 415 U.S. 651, 668 the

attorney 's fees award has only an “ancillary effect” on

the state treasury, and therefore under the rationale

of Ex parte Young, 209 U.S. 123, falls outside the

prohibitions of the Eleventh Amendment. Moreover,

for the reasons discussed in the brief for the United

States as amicus curiae in Zurcher v. The Stanford

Daily, No. 76-1484, and Bergna v. The Stanford

Dasly, No. 76-1600, the fact that this action was com-

menced before the passage of the Act does not defeat

the award in this case.

ARGUMENT

THE CIVIL RIGHTS ATTORNEY'S FEES AWARDS ACT OF 1976

AUTHORIZES AN AWARD OF ATTORNEY'S FEES IN THIS CASE

The court of appeals correctly ruled that the Civil

Rights Attorney’s Fees Awards Act of 1976 author-

ized an award of attorneys’ fees in favor of the re-

spondents (Pet. App. 45). The Act specifically

authorizes an award of attorney’s fees to the pre-

vailing party in cases such as this brought under 42

The Jistrict court awarded attorney's fees to the

Alyeaka and also that it falls within the ‘bad faith’ exception to

the American Rule recognized in Alea (Pet. App. 86). Since

10

U.S.C. 1983.* Neither the faet that the fees are to be

paid out of state funds nor the fact that they cover

work performed in part before the passage of the Act

affects the propriety of the award.

A. THE ELEVENTH AMENDMENT DOES NOT BAR AN AWARD OF ATTOR-

NEY’S FEES TO BE PAID FROM STATE FUNDS PURSUANT TO THE CIVIL

RIGHTS ATTORNEY'S FEES AWARDS ACT

J. As @ Valid Exercise of Congressional Power Pursuant to Sec-

tion Five of The Fourteenth Amendment, The Act Abrogates

Any Eleventh Amendment Immunity The State Might Other-

wise Have Enjoyed

In Fitzpatrick v. Bitzer, 427 U.S. 445, the Court

held that the Eleventh Amendment did not prohibit

the award of attorney’s fees to “be paid out of the

state treasury” (id. at 451) to plaintiffs who were

successful in an employment discrimination suit

brought against state officials pursuant to Title VII of

the Civil Rights Act of 1964, 78 Stat. 253, as amended,

the Civil Rights Attorney's Fees Awards Act of 1976 was enacted

while the case was pending on appeal, the court of appeals found

it unnecessary to pass on the bad faith justification for the award

although it noted that “the record fully supports the finding of

the district court” on that question (Pet. App. 5). The existence of

the Act similarly makes it unnecessary for this Court to consider

whether the award of attorney's fees was justified by petitioners’

* Respondents are “the prevailing party” within the meaning of

the Act. They have prevailed on most of the issues that were

resolved during the period covered by the award, including issues

that are not being contested in this Court. An award of counsel

fees is appropriate under the Act even when the prevailing party

Toco nat. poovell an 0 lem.” S. Ian. Ba. SL 008k

Supra, at 5; 34 Wash. L. L. Rev. at 218-219.

11

42 U.S. C. (and Supp. V) 2000 e et seg. As amended in

1972, Title VII specifically authorizes the award of

back pay and attorney’s fees in suits against state and

ereignty it embodies * are limited by the provisions of

“The rationale of Fitepatrick v. Bitzer is fully ap-

torney’s Fees Awards Act was enacted pursuant io

1100

f

4

110

f

f

supre;

— Terminal R. Co, 377 U.S. 184; Great Northerr. Life Ina.

Co. v. Read, 322 U.S. 47; Hans v. Louisiana, 134 US. 1.

12

Congress’ powers under Section 5 of the Fourteenth

Amendment (as well as its similar power to enforce

the Thirteenth Amendment). See, ¢.g., S. Rep. No.

94-1011, supra, at 5. Like the backpay and attorney’s

fees provisions of Title VII, then, the Attorney’s

Fees Awards Act limits the Eleventh Amendment

principle of state sovereignty.’

That Congress intended to subject states and their

agencies to the payment of attorney’s fees in cases

against their officials is clear from the legislative his-

tory of the Act. The Senate repeatedly tabled amend-

ments that would have exempted state and local

governments from the Act’s requirements. 122 Cong.

Rec. $16431-S16434 (daily ed., September 22, 1976);

122 Cong. Rec. 816567 (daily ed., September 24,

1976); 122 Cong. Rec. 816656, 816657 (daily ed., Sep-

tember 27, 1976). The Senate Report accompanying

the Act provides (S. Rep. No. 94-1011, supra, at 5).

_ As with cases brought under 20 U.S.C.

§ 1617, the Emergency School Aid Act of 1972,

* The lower federal courts have generally agreed that the Act

abrogates the states’ Eleventh Amendment immunity. See Gees v.

Collier, 559 F. 2d 241 (C.A. 5); Bond v. Stanton, 555 F. 2d 172

(C.A. 1) ; Rainey v. Jackson State College, 551 F. 2d 672 (C.A. 5);

La Raza Unida of Southern Alameda County v. Vople, N.D. Cal.,

No. C-71-1166 RPF, decided September 29, 1977 ; Southeast Legal

Defense Growp v. Adame, 436 F. Supp. 801, 803-804 (D. Ore.) ;

Guajardo v. Estelle, 432 F. Supp. 1378 (S.D. Tex.) ; Gary W. v.

State of Lowisiana, 429 F. Supp. 711 (E.D. La.) ; Wade v. Missis-

Fa ed = beg ome 72 —— — — 4

moe v. of : State C

436 F. Supp. 657, 666-667 (M.D. Pa.); Shannon v. United Slates

J

The pertinent House Report, H.R. Rep. No. 94-1558,

94th Cong., 2d Sess. 7 (1976), provides that:

[G]overnment officials are frequently the de-

fendants in cases brought under the statutes

covered by H.R. 15460. See, ¢.g., Brown v.

Board of Education, (347 U.S. 483]; Gan-

treaue v. Hills, [sie] [425 U.S. 284]; O’Connor

v. Donaldson, 422 U.S. 563]. Such govern-

mental entities and officials have substantial re-

sources available to them through funds in the

common treasury, including the taxes paid by

the plaintiffs themselves. * * * The greater re-

sources available to governments provide an

ample base from which fees ean be awarded to

the prevailing plaintiff in suits against govern-

mental officials or entities [footnote omitted].

And Representative Drinan described the relationship

between the Act and the Eleventh Amendment as fol-

lows (122 Cong. Rec. H12160 (daily ed., October 1,

1976) ) :

The question has been raised whether allow-

ing fees against State governments in suits

properly brought under the covered statutes

would violate the 11th amendment. That amend-

14

ment limits the power of the Federal courts to

entertain actions against a State. This issue is

no longer seriously in dispute after the recent

Supreme Court decision in Fitzpatrick against

Bitzer: Since this bill is enacted pursuant to the

power of Congress under section 2 of the 13th

amendment and section 5 of the 14th amend-

ment, any question arising under the 11th

amendment is resolved in favor of awarding

fees against State defendants.

See also H.R. Rep. No. 94-1558, supra, at 7 n. 14.

Petitioners accurately note (Br. 8) that Congress

did not provide for the naming of States and their

agencies as defendants in cases brought under 42

U.S.C. 1983." But that does not preclude the award

of attorney's fees to be paid from state funds in cases

successfully brought against state officials under that

statute. That is the result Congress specifically in-

tended in the legislative history quoted above.

In doing so, Congress correctly recognized that

there is no requirement that a state must be a named

defendant for the court to issue an order requiring

the expenditure of state funds. In Fitzpatrick v.

Bitzer, supra, on which Congress relied, this Court

42 U.S.C. 1983, quoted supra at pp. 2-3, authorizes only suits

against “persons” acting under color of law. States and their

agencies are not “persons” within the meaning of Section 1983. Cf.

Fitzpatrick v. Bitzer, supra, 427 U.S. at 452; Monroe v. Pape, 365

U.S. 167, 187-191. In contrast, the Attorney's Fees Awards Act

does not refer to “persons”—it simply provides that the court may

award the “prevailing party” a reasonable attorney's fee as part

of the costs. That is precisely what was done here.

15

upheld an award of backpay and attorney’s fees to

be paid from state funds, although neither the state

nor any state agency was named defendant. See

United States v. Donaldson, 429 U.S. 413, 448 n. 4,

451." States commenly bear the costs of litigation in

suits against state officials in their official capacities.”

Moreover, singe the state confers upon its officers the

authority to act on its behalf, it is entirely appropriate

to require the siate to pay attorney’s fees in civil

rights suits challenging those actions, regardless of

whether the state or any of its agencies has been

named as a defendant.

9. An Award Of Attorney Fees Has Only An Ancillary Effect

On The State Treasury

Wholly apart from the fact that Congress was ex-

ercising its Thirteenth and Fourteenth Amendment

enforcement powers against the states when it enacted

the Attorney’s Fees Awards Act, the payment of coun-

sel fees has in any event only an “ancillary effect” on

the state treasury under the rationale of Edelman v.

Jordan, 415 U.S. 651, and therefore does not abrogate

the state’s sovereign immunity preserved by the Elev-

enth Amendment.

This Court's decisions in Graham v. Richardson, 403 U.S, 365,

367, 369, and Goldberg v. Kelly, 397 U.S. 254, 261, also resulted in

increased state expenaitures for welfare programs, even though

the named defendants were state and local officials, not the states

or any of their agencies.

* See, ¢.g., Ark. Stats., 1947 f 12-712 (1968 Repl.) (directing

the Attorney General to represent “all state officers * * * in all liti-

gation where the interests of the state are involved“); Ann. Cal.

Gov. Code § 825 et seg. (West Cum. Supp. 1977).

16

Under the long-standing doctrine of Ez parte

Young, 209 U.S. 123, equitable relief may be secured

against the enforcement of an unconstitutional state

statute notwithstanding any incidental drain on the

state treasury resulting from the cost of compliance

with the court’s mandate. Edelman v. Jordan, supra,

415 U.S. at 668. This Court has also held that litiga-

tion costs may be taxed against the states. Fairmont

Creamery Co. v. Minnesota, 275 U.S. 70. We submit

that attorney’s fees are an incidental cost of securing

compliance with federal laws analogous to other litiga-

tion costs. They are not, as petitioners contend, the

equivalent of money damages designed to redress or

punish past misconduct, and thus within the purview

of the Eleventh Amendment.

The Court in Edelman v. Jordan, supra, while ac-

knowledging that “the difference between the type of

relief barred by the Eleventh Amendment and that

pernntted under Ez parte Young will not in many

instances be that between day and night” (415 U.S.

at 667), nonetheless provided considerable guidance

for distinguishing the two by describing the salient

characteristics of each. The sort of relief that is barred

is “a liability which must be paid from publie funds“

(id. at 663); “an accrued monetary liability which

must be met from the general revenues” (id. at

664); “payment of a very substantial amount of

money which * * * should have been paid, but was

not” (ibid.); use [of] state funds to make repara-

tion for the past (td. at 665); “‘retroactive pay-

ments” (id. at 666 n. 11); and “payment of state

17

funds * * * as a form of compensation” (id. at 668).

These characteristics lead to the general conclusion

that money relief is barred when “it is in practical

effect indistinguishable in many aspects from an

award of damages against the State“ (ibid.).

An award of attorney’s fees does not share these

characteristics. It is not akin to damages: it is in-

tended neither to compensate the victims of, nor to

punish the state for, past illegal conduct.

Rather, the award of counsel’s fees is much closer

to the sort of draw upon the state treasury, permitted

by Ex parte Young and Edelman v. Jordan, that

comes about as the “necessary consequence of compli-

ance in the future with a substantive federal-question

determination” (415 U.S. at 668; see also id. at 665).

While the payment of attorney’s fees is not identical

to the increased funding of state programs required

as a practical matter as a result of this Court’s deci-

sions in Graham v. Richardson, 403 U.S. 365, and

Goldberg v. Kelly, 397 U.S. 254 (see 415 U.S. at 667-

668), the differences militate in favor of the inclusion

of attorney’s fees among the genre of awards allow-

able. As the Court stated in Edelman v. Jordan, the

fiseal consequences to state treasuries in these cases

were the necessary result of compliance with decrees

which by their terms were prospective in nature” (415

U.S. at 667-668). The prospect of an award of counsel

fees is in many cases a necessary prerequisite to the

bringing of the suit itself. If the Eleventh Amend-

ment does not protect the states from having “to spend

money from the state treasury” in order to shape

18

[its] conduct to the mandate of the Court’s decrees”

(415 U.S. at 668), then surely it should not be the

basis for defeating such suits in the first place, which

would be the likely result of a rule barring awards of

attorney’s fees against the states. Like the other costs

of the litigation, the fee award is merely part of the

cost of bringing the state into future compliance by

means of the litigation itself. In short, such an award,

like the fiscal consequence to the state resulting from

the need to comply with a judicial decree, has only

“an ancillary effect on the state treasury [which] is a

permissible and often an inevitable consequence of

the principle announced in Ez parte Young” (ibid.) .“

Although the circuits are split on the issue, most agree that an

award of attorney's fees to be paid by the state is not barred by the

Eleventh Amendment. See, e. g., Souza v. Travisono, 512 F. 2d 1137

(CA. 1), vacated, 423 U.S. 809; Class v. Norton, 505 F. 2d 123,

125 (C. A. 2) ; Jordan v. Fusari, 496 F. 2d 646, 651 (C.A. 2) ; Sims

v. Amos, 340 F. Supp. 691 (M.D. Ala.) affirmed, 409 U.S. 942.

The Seventh Circuit follows the same rule, finding Sims v. Amos,

supra, controlling, Bond v. Stanton, 528 F. 2d 688, vacated and

remanded for further consideration in light of Pub. L. 94-559,

429 U.S. 973, as does the Ninth, Brandenburger v. Thompson, 494

F. 2d 885. See also Thonen v. Jenkins, 517 F. 2d 3 (C.A. 4); Bos-

ton Chapter N.A.A.C.P., Inc. v. Beecher, 504 F. 2d 1017 (C.A. 1),

certiorari denied, 421 U.S. 910.

The Sixth Circuit has held that a state's immunity bars an award

of attorney's fees, Jordon v. Gilligan, 500 F. 2d 701, certiorari

denied, 421 U.S. 991, relying on Skehan v. Board of Trustees of

Bloomsburg State College, 501 F. 2d 31 (C.A. 3), vacated and

remanded for further consideration in light of Alyeska Pipeline

Service Co. v. Wilderness Society, supra, and Wood v. Strickland,

420 U.S. 308, 421 U.S. 983. A subsequent Sixth Circuit decision to

like effect, Taylor v. Perini, 503 F. 2d 899, was vacated and re-

manded for further consideration in light of Alyeska Pipeline

Service Co. v. Wilderness Society, supra, 421 U.S. 982. See, also,

19

As Mr. Justice Stevens noted in his concurrence in

Fitzpatrick v. Bitzer (427 U.S. at 460), this result in

essence merely restates the doctrine of Fairmont

Creamery Co. v. Minnesota, 275 U.S. 70, where the

state attempted to assert its sovereignty as a bar to an

award of costs against it. This Court held that it was

justified in treating the state just as any other liti-

gant and in imposing costs upon it as such” (id. at 77)

since the case was brought to the Court not “by the

state’s consent but by virtue of a law, to which it is

subject. Though a sovereign, in many respects, the

state when a party to litigation in this Court loses

some of its character as such’’ (275 U.S. at 74). It

should be no different in any federal court. [To the

extent states and state officials are, under our federal

system, amenable to suit in federal courts, they should

be responsible for costs and fees incidental to litiga-

tion to the same degree as others” (Souza v. Travi-

sono, 512 F. 2d 1137, 1140 (C. A. 1), vacated, 423 U.S.

809) .*

Named Individual Members of San Antonio Conservation Society

v. Teras Highway Dist., 496 F. 2d 1017 (C. A. 5). See, generally,

Note, Attorneys’ Fees and the Eleventh Amendment, 88 Harv. L.

Rev. 1875 (1975).

The State of California, in its brief amicus curiae (p. 6), states

that Sprague v. Ticonic Bank, 307 U.S. 161, establishes that an

award of attorney’s fees is “quite unlike” an award of taxable

costs. But that case simply held that attorney's fees and taxable

costs were sufficiently distinct so that a claim for the latter did

not constitute a waiver of reimbursement for the former (id. at

168). Nothing in Sprague is inconsistent with our contention that

at least where, as here, the underlying statute provides for an

award of attorney's fees, there is no analytical difference between

costs and attorney's fees for purposes of considering whether they

are allowed by Ez parte Young or barred by the Eleventh Amend-

This Court has already affirmed a decision reach-

ing this result, Sims v. Amos, 340 F. Supp. 691 (M.D.

Ala.), summarily affirmed, 409 U.S. 942.“ There the

district court taxed attorney’s fees against the state,

ruling that a state was without immunity in suits

brought under the doctrine of Ex parte Young. In its

Jurisdictional Statement the state protested the award

as an unlawful abrogation of its sovereign immunity,

and this Court’s affirmance apparently rejected that

ment. See Souza v. T'ravisono, supra, 512 F. 2d at 1140; Class v.

Norton, supra, 505 F. 2d at 125; Taylor v. Perini, supra, 503 F. 2d

at 909 (Edwards, J., dissenting). Indeed, the applicable statutory

provision here, the Attorney’s Fees Awards Act, provides for an

award of attorney's fees “as part of the costs.“

0 Petitioners incorrectly suggest (Br. 17) that Sims v. Amos

is undercut by this Court’s summary affirmance, 421 U.S. 972, of

the denial of attorney’s fees in Murgia v. Mass. Bd. of Retirement,

386 F. Supp. 179 (D. Mass.). In Murgia, a state police officer

challenged as unconstitutional a statute that required his retire-

ment solely because he had reached age 50. A three-judge court

held the statute unconstitutional (376 F. Supp. 753), but refused

to award counsel fees in the absence of a statute permitting the

award, both because of the Eleventh Amendment “and ag a matter

of discretion” (386 F. Supp. at 182). This Court’s summary affirm-

ance of that refusal is not a significant precedent on the question

whether an award of counsel fees to be paid by « state agency is

barred by the Eleventh Amendment, since the Court may have

concluded that the case did not come within any of the exceptions

to the “American Rule” permitting the awarding of counsel fees

without specific statutory authorization or that, even if it did,

it was within the trial court’s discretion to decline to make such

an award. (This Court subsequently reversed the district eourt's

judgment on the merits, 427 U.S. 307.)

21

claim on the merits. Cf. Hicks v. Miranda, 422 U.S.

332, 344-345.“

B. THE ACT APPLIES TO CASES SUCH AS THIS, PENDING ON THE DATE OF

ENACTMENT

This case was instituted in April 1969; the award of

counsel fers at issue here was for legal services ren-

dered after the court of appeals’ remand in Novem-

ber 1974 (Pet. App. 14).“ The fact that a substantial

part of the services were completed before the Act's

passage does not affect the validity of the award. We

have discussed in our brief amicus in Zurcher v. Stan-

ford Daily, and Bergna v. Stanford Daily, Nos. 76

1484 and 76-1600, the reasons why we believe the Act

authorizes payment for services rendered before it

was enacted, under the principles of Bradley v. Rich-

mond School Board, 416 U.S. 696."

The Seventh Circuit so held in Bond v. Stanton, supra, note 13.

Brandenburger v. Thompson, supra, 494 F. 2d at 888, also relied

on this Court’s affirmance in Sims v. Amos in holding attorney's

fees allowable. See also Taylor v. Perini, supra, 508 F. ad at 907

908 (Edwards, J., dissenting) (affirmance in Sims binding) ;

Newman v. State of Alabama, 522 F. 2d 71, 72-80 (C.A. 5)

(Gewin, Brown, Wisdom, Thornberry, Goldberg, JJ., dissenting

from remand for reconsideration of attorney's fees iesue)

(semble). Contra, Skehan v. Board of Trustees of Bloomaburg

State College, supra, 901 F. 2d at % n. 7; Jordan v. Gilligan,

supra, 500 F. 2d at 706-700; Taylor v. Perini, supra, 508 F. ad at

905 (by implication).

* In 1973, the district court allowed respondent's then counsel

an $8,000 fee, which was paid by the Department of Correction

(Pet. App. 82).

We are sending the parties to this litigution a copy of our

amigus brief in Stanford Daily.

The award of attorney’s fees should be affirmed.

Respectfully submitted.

Wane H. McCrer, Jr.,

Drew S. Days, III.

Assistant Attorney General.

Wurm W. Bagyerrt,

Dennis J. Dimsey,

Attorneys.

Janvary 1978.