Petition — Louisiana v. Gary W.
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IN THE
Supreme Court of the United S
OCTOBER TERM, 1980
GARY W., ET AL.,
Respondent
VERSUS
STATE OF LOUISIANA, ET AL.,
Petitioner
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
WILLIAM J. GUSTE, JR.
ATTORNEY GENERAL
STATE OF LOUISIANA
KENDALL L. VICK
ASSISTANT ATTORNEY GENERAL
PATRICIA NALLEY BOWERS
STAFF ATTORNEY
PAUL A. ECKERT
STAFF ATTORNEY
LOUISIANA DEPARTMENT OF
JUSTICE
234 LOYOLA AVENUE, 7TH FLOOR
NEW ORLEANS, LOUISIANA 70112
PHONE: (504) 568 - 5575
Attorneys for Petitioner
RRA eA NTR no EN eA ERT NS IY
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1980
NO.
GARY W., ET AL.,
Respondent
VERSUS
STATE OF LOUISIANA, ET AL.,
Petitioner
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Petitioner, State of Louisiana, prays that a writ of certiorari
issue to review the judgment and opinion of the United States
Court of Appeals for the Fifth Circuit in the above entitled
case.
QUESTIONS PRESENTED
1) Does the decision of Hutto v. Finney, 437 U.S. 678
(1978), allow the federal court to seize state funds in order
to satisfy an award of attorneys’ fees?
2) May a judgment creditor execute on a money judgment
against a state under the provisions of the Federal Rules of
Civil Procedure, Rule 70 for specific performance, instead of
under the provisions of Rule 69 for executions on money judg-
ments?
PARTIES TO PROCEEDING
Listed below are the original plaintiffs and defendants.
Only the defendants whose names are in italics are the main
parties at interest in the current appeal.
GARY W., by his guardian and next friend, W. M. and
his mother D. S.; JOSEPH G., by his mother and next
friend, J. B.; ELIZABETH M., by her mother and next
friend, N. T.; DWANA MARIE M., by her grandmother
and next friend, N. T.; on behalf of themselves and the
class of all others similarly situated; W. M., guardian
of GARY W.; D. S., mother of GARY W.; J. B., mother
of JOSEPH G.; N. T., mother of ELIZABETH M. and
grandmother of DWANA MARIE M.; on behalf of
themselves and the class of all others similarly situated.
Plaintiffs,
STATE OF LOUISIANA in its capacity as guarcian |
parens patriae of the above named and class of chiluren;
EDWIN EDWARDS, individually and as Governor of
the State of Louisiana; LOUISIANA HEALTH AND
SOCIAL AND REHABILITATION SERVICES AD-
MINISTRATION; DR. WILLIAM STEWART, individ-
ually and in his official capacity, LOUIS MICHOT, in-
dividually and in his official capacity; CHARLES
MARY, JR., M. D., individually and in his official
capacity; GARLAND I. BONIN, individually and in
his official capacity; CHARLES YOST, individually
and in his official capacity; DR. ANDREW HEGMEG,
individually and in his official capacity; SIDNEY
GOMEZ, individually and in his official capacity;
OTTO P. ESTES, individually and in his official capaci-
ty; WILLIAM ADDISON, M. D., individually and
in his official capacity; GARY SNEED, M. D., indi-
vidually and in his official capacity; ISRAEL SIDNEY,
individually and in his official capacity; HOWARD K.
SOMMERS, individually and in his official capacity;
CATHERINE OBERHOLTZER, individually and in her
official capacity; CASPER WEINBERGER, individually
and in his official capacity;
FRANK GROSCHELLE, individually and in his official
capacity; THE BROWN SCHOOL, INC.; CAL FAR-
LEY’S BOYS RANCH, INC.; JONES CHILDRE}®’S
HAVEN, INC.; CRIPPLED CHILDREN’S COTTAGE,
INC.; EAST TEXAS GUIDANCE AND ACHIEVE-
MENT CENTER, INC.; MISSION ROAD FOUNDA-
TION FOR EXCEPTIONAL CHILDREN, INC.; MARY
LEE FOUNDATION, INC.; MARBRIDGE FOUNDA-
TION FOR RETARDED CHILDREN, INC.; SHADY
BROOK SCHOOLS CORPORATION, INC.; BEAU-
MONT REMEDIAL’ CLINIC, INC.; MERIDELL
ACHIEVEMENT CENTER, INC.; SUMMIT OAKS
ACHIEVEMENT CENTER, INC.; ABILENE YOUTH
CENTER, I'NC.; BAGLEY HOME FOR EXCEPTION-
AL CHILDREN, INC.; GREENHIGH RESIDENTIAL
TREATMENT CENTER, INC.; HARRIS COUNTY
HALFWAY HOUSE; HEART OF TEXAS CONVA-
LESANT HOME, INC.; THOMAS W. HUGHEN
SCHOOL, INC.; McDONALD DEVELOPMENTAL
HOME, INC.; PEACEFUL VALLEY CHILDREN’S
HOME, INC.; THOMAS HOSPITAL FOR EXCEPTION-
AL CHILDREN, INC.; ROLLING CREEK MANOR,
INC.; FRED DAY HOME FOR CHILDREN, INC.;
WOODACRES CHILDREN’S HOME, INC.; DYER
VOCATIONAL TRAINING CENTER, ROBERT
DYER, GEORGIA DYER, MRS. JAMES H. LATHAM,
GERTRUDE M. GOODMAN, TERRY P. AYRE, JOHN
S. TEED, individually and as agents of the State of
Louisiana and as owners and operators of the Dyer
Vocational Training Center; JOHN DOE’S ONE
iii
THROUGH 6NE HUNDRED (whose true names are
presently unknown) individually and as employees
and agents of the United States Government, the State
of Louisiana, or the above named commercial institu-
tions for the confinement of children,
Defendants.
iv
TABLE OF CONTENTS
Page
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Constitutional and Statutory Provisions .................. ]
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TABLE OF AUTHORITIES
Page
CASES:
UNITED STATES SUPREME COURT
Edelman v. Jordan, 415 U.S. 651 (1974) .....-.. eee eee 6
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) ..........506-- 6
Hutto v. Finney, 437 U. S. 678 (1978) ...i, 6, 7, 8, 12, 13, 14
Metcalf and Eddy v. Mitchell, 269 U.S. 514 (1926) ........ )
National League of Cities v. Usery, 426 U. S.
et as ony ok biga tee bee Meee ee eee 9
South Dakota v. North Carolina, 192 U. S.
et iy on sO ad ace oe vs 0d 6 ROR 12
Virginia v. West Virginia, 246 U. S. 884 (1917) ..........--- 8
APPELLATE COURTS
Gary W. v. Louisiana, 622 F. 2d 804 (Sth Cir. 1980) ...... 3,6
Gates v. Collier, 616 F. 2d 1268 (Sth Cir.
oer rrr y Meer eee oe ree ee S. ts hoe
Hamilton v. McDonald, 503 F. 2d 1138 (9th
EE ass «danke cig oie abo ke dC REES oe He wees 11, 12
New York State Association for Retarded
Children v. Carey, 2nd Cir. June 4, 1980) .......... 10, 14
TABLE OF AUTHORITIES CONTINUED
Page
Nixon v. Sirica, 487 F. 2d 700 (D. C. Cir.
Ne and Saline mies « een Om 12
Williams v. McKeithen, 547 F. 2d 1206 (Sth Cir.
Oe eke ak MS 6 ake Ree wee Be 2
DISTRICT COURTS
Gary W. v. Louisiana, 429 F. Supp. 711 (E. D.
La. 1977); 441 F. Supp. 1121 (E. D. La. 1977) ........ 2,4
Williams v. McKeithen, M. D. La., 71-98 (un-
reported minute entry August 4, 1980 .................. 3
STATUTES:
United States Constitution
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Federal Statutes
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ee ie Ni wales os wed ea be eee 2
Oe ce ie cet hba eases sceee ee 2
Oe ee, SEs 2 Wc dew Swed 6 dhe be buae 2
28 U.S.C. sec. 1988 (Supp. 1980), formerly, ........... 2
ch. 114, sec. 18, 16 stat. 144 (1870)
28 U.S. C. sec. 2201 et seq. (Supp. 1980) .............. 2
Federal Rules of Civil Procedure
re ae ee ara i, 1,4, 10, 11
a TEE 66k ook bea oe eek i, 1,5, 10, 11
Vii
TABLE OF AUTHORITIES CONTINUED
Page
Louisiana Constitution
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Se Re ee, SS ED ovo osc 0 bw dc on as demel 2
Vili
OPINIONS BELOW
The opinion of the Fifth Circuit Court of Appeals is reported
at 622 F. 2d 804 and is reprinted in the Appendix hereto
pp. A-23 infra. The opinion of the District Court for the
Eastern District of Louisiana awarding attorneys’ fees is re-
ported at 429 F. Supp. 711 and is reprinted in the Appendix
hereto pp. A-1 infra. The opinion of the District Court
for the Eastern District of Louisiana denying petitioner’s
motion for relief under a Rule 60(b) motion is reported at
441 F. Supp. 1121 and is reprinted in the Appendix hereto
pp. A-8 infra.
JURISDICTION
The judgment of the Court of Appeals was rendered on
July 31, 1980. Jurisdiction of this Court is invoked pursuant
to 28 U.S. C. Section 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS
Due to the large number of statutes involved in this litiga-
tion, they are merely listed here and are reprinted in the Appen-
dix hereto pp. A-76 infra.
United States Constitution
U. S. CONST., Amend. 11
U. S. CONST., Amend. 10
Federal Statutes
42 U.S.C. Section 1988 (Supp. 1976)
Federal Rules of Civil Procedure
Fed. R. Civ. P. 69
Fed. R. Civ. P. 70
Louisiana Constitution
LA. Const., art. VII, sec. 10(a)
LA. CONST., art. XII, sec. 10(c)
STATEMENT OF THE CASE
This case originated as class action litigation concerning
mentally retarded and/or emotionally disturbed children
from Louisiana who were placed in Texas institutions by the
Department of Health and Human Resources due to a lack of
space in such Louisiana institutions, Jurisdiction of the district
court was invoked under 5 U. S. C, Section 1321, 1332, 1343,
1361 and 28 U. S. C. Section 2201 et seg. (Supp. 1980).
Before the 1977 legislative session began, a judgment in this
case by the United States District Court for the Eastern District
of Louisiana ordered the return of the Louisiana children from
Texas to Louisiana at an untold cost to the state since there
were no facilities available to house the children. In addition
plaintiffs were held entitled to attorneys’ fees under the Civil
Rights Attorneys’ Fees Act of 1976, 42 U. S. C. 1988 (Supp.
1976), formerly Chapter 114, Section 18, 16 Stat. 144 (1870).
See Gary W. v. State of Louisiana, 429 F. Supp. 711 (E. D. La.
1977), L/
During the same session the Louisiana Legislature was faced
with an opinion by the United States Court of Appeals for
the Fifth Circuit affirming an extensive lower court order to
upgrade the state penitentiary. 2/ The state was ordered to
implement reforms that would cost in excess of one hundred
million dollars.
1/ Due to the procedural complexity of this case, we borrow heavily
from the syllabus provided by the Fifth Circuit in this matter. See, Gary
W. v. State of Louisiana, 622 F, 2d 804, 806 (5th Cir., 1980).
2) ‘Williams v. McKeithen, 547 F, 2d 1206 (5th Cir. 1978).
a
Judge Goldberg. in his opinion for the Fifth Circuit, makes
reference to two attempts by the Louisiana Legislature to pass
an appropriation for the award of attorneys’ fees in this case.
Gary W. v. State of Louisiana, 622 F. 2d 804, 805 - 806 (Sth
Cir. 1980). It appears from a careful analysis that the same
legislator introduced two bills to appropriate the funds during
the 1977 session. He abandoned one and brought the other
to the House floor for a vote, which was defeated by a vote of
47 to 48. .3/ While there is no recorded transcript of the de-
bate of the Louisiana Legislature, it has been reported that the
legislators were concerned with the award of $204,916.88 in
the case at bar when compared to the potential attorneys’
fees in the Williams case -4/ for the reform of the state peniten-
tiary.
The Louisiana Constitution Article 7, Section 10 mandates
the following:
“Section 10. (A) Appropriations. Except as otherwise
provided by this constitution, money shall be drawn
from the state treasury only pursuant to an appropria-
tion made in accordance with law.”
while Article 12, Section 10(c) provides
“The legislature shall provide a procedure for suits
against the state, a state agency, or a political subdivi-
sion. It shall provide for the effect of a judgment, but
no public property or public funds shall be subject to
seizure. No judgment against the state,
3/ See Official Journal of the Louisiana House of Representatives
May 18, 1977 and August 11, 1977, Appendix pp. A-79.
4/ Award of $27,500.00 was made by the District Court after eleven
years of litigation. Williams v. McKeithen, M. D. La., 71-98 (unreported
minute entry) August 4, 1980,
a state agency, or a political subdivision shall be exi-
gible, payable, or paid except from funds appropriated
therefore by the legislature or by the political subdivi-
sion against which judgment is rendered.”
Without such an appropriation, no funds may be withdrawn by
any state official to pay a judgment. Accordingly, the Attorney
General was requested to ask the District Court to reconsider
the award of attorneys’ fees in this case.
The plaintiffs, incensed at the Legislature’s refusal to ap-
propriate the funds, immediately directed the clerk of the
district court to issue a writ of seizure in the form of a fieri
facias directing the U. S. Marshall to seize a bank account of
Department of Health and Human Resources in order to satisfy
the judgment. The State moved to quash the writ of fieri facias
on the ground that the Louisiana Constitution prohibits the
seizure of public property to satisfy a judgment against the
state or a state agency.
Judge Alvin B. Rubin, Circuit Judge, sitting by designa-
tion on the Eastern District bench, struck down the State’s
contention that the pivotal issue of the parameters of the
Court’s discretion to award fees had never been properly
briefed or argued. He further ruled that the federal court “need
not face the difficult problems” -/ of whether Louisiana law
would control execution on a money judgment under rule
69, because rule 70 (specific performance) provided all the
authority needed to execute on the judgment and was not
controlled by state procedure and practice. In dicta he stated
that 42 U. S.C. Section 1988 was a federal law under the terms
of Rule 69 and would supercede state law. He ordered the
state to place $225,000 in a bank account controlled by the
Clerk of Court.
5/ Gary W. v. State of Louisiana, 441 F. Supp. 1121, 1126 (B. D. La.
1977)
The State took exception to such a ruling, and promptly
appealed to the Sth Circuit. Judge Goldberg, writing for the
Circuit, summarily affirmed Judge Rubin in a seven paragraph
decision stating that
“the previous ruling in Gates v. Collier, 616 F. 2d
1268 (5th Cir. 1980) controlled the issue sol
enforcement of attorneys’ fees through Rule 70.”
Petitioners, seeking a more definitive consideration of the
delicate and difficult issues of federalism involved, made timely
application to this court for a writ of certiorari.
6/ Gary W. v. State of Louisiana, 622 F, 2d 804, 805 (5th Cir. 1980)
-5-
REASONS FOR GRANTING WRIT
The decision of the 5th Circuit in Gary W. v. State of Louisi-
ana, 622 F. 2d 804 (5th Cir. 1980) is an unwarranted and
significant extension of this Court’s decision in Hutto v. Finney,
437 U. S. 678 (1978). It should be reversed.
In Hutto, a 5/4 majority held that the Civil Rights Attorney’s
Fees Award Act of 1976 in conjunction with the 14th Amend-
ment authorizes the award of attorney’s fees against the states
per se.
Claims made by the State of Arkansas that the States were
protected by the 11th Amendment were specifically rejected.
The majority successfully argued that Congress had the power
to defeat the States’ 11th Amendment immunity from retro-
active relief in order to enforce the 14th Amendment.
In addition, the opinion stated that the intent of Congress
to award attorney’s fees against the States was sufficiently
evidenced by the legislative history and need not be expressed
in clear statutory language, as costs, including attorneys fees,
were traditionally taxed against the States without regard for
their 11th Amendment immunity.
However, the dissenting justices, relying on Edelman v,
Jordan, 415 U. S. 651 (1974) and Fitzpatrick v. Bitzei, 427
U. S. 445 (1976), maintained that ‘‘the threshold fact of con-
gressional authorization to sue a class of defendants which
literally includes States is wholly absent” Hutto at 705 (dis-
senting) (emphasis in original). Accordingly, they argued that
clear statutory language was required in order to defeat the
protection of the 11th Amendment, and denied that attorneys’
fees should be awarded against the States.
Further, they warned that they did not view attorneys’ fees
-
as having been traditionally awarded against the States as costs,
and that such fees were not routine expenses comparable to
a filing fee as alleged by the majority.
Rather, i emphasized that the ‘fees may involve sub-
stantial sums -/ ” Hutto at 707 (dissenting) and could “place
new or even enormous fiscal burdens on the States, . . . under-
mining the values of federalism served by the 11th Amend-
ment” Hutto at 705 (dissenting).
Hutto, however, did not decide the issues clearly presented
in Gary W. and its companion case Gates v, Collier, 616 F. 2d
1268 (5th Cir. 1980). In Gary W. the issue is not the federal
courts’ power to award attorneys’ fees, but rather the advisi-
bility of federal seizure of state funds when there is a conflict
over the payment of an award of attorney’s fees. Hutto did not
reach this issue. It stopped short of the Gary W. problem
saying only that the courts had the power to make such an
award,
Assuming arguendo a concurrence with the majority view
in Hutto, the power to award attorneys’s fees does not include
within its logical bounds the power to delve into the public
fisc in the face of opposition to such an award. Such a seizure
is an entirely different and more delicate issue. The principles
of federalism demand that the States retain their essential
governmental functions. The integrity of any state is compro-
mised by the order of a federal court to disburse state funds
in contravention of the State’s own Constitution.
It is appropriate then that this court make a decision as to
1) whether the purpose sought to be achieved is important
1! Fees in this case to date including interest are well over $250,000.00.
enough to justify this significant and further intrusion into
state sovereignty, i. e. an exercise by the courts of the legislative
functions and 2) if the intrusion is justified is there sufficient
Congressional authorization in the statutes as written, i. e.
would specific statutory language be needed to authorize such a
seizure?
These decisions were not made in Hutto, and it is not ap-
propriate for the Sth Circuit to assume them from the language
of Hutto.
On the contrary this is a case of first impression and should
be decided by this Court. Although in 1917 the case of Virginia
v. West Virginia, 246 U. S. 884, addressed the issue of the
right of the federal courts to enforce a monetary judgment, the
case is clearly distinguishable.
That case dealt with a controversy over a contract between
two states. The court derived its authority to enforce the
monetary judgment by mandamus of the legislature, by levy
of taxes, or by any other means from the original jurisdiction
given to the court over controversies between states. It dis-
cussed at length the reasons for such an extraordinary waiver
of the separation of powers including the fact that there might
be no other way to resolve a controversy between states short
of war.
However, even after noting that they had the power to en-
force the judgment by whatever means necessary, the court
chose not to exercise that power and returned the case to the
docket for further argument so that they might be “spared in
the future the necessity of exerting compulsory power against
one of the states of the Union” Ibid. at 892.
It is urged that such should be the stance of this Court. As
the court realized in Virginia v. West Virginia, an imposition
upon the theories of federalism and separation of powers is so
-8-
grave a constitutional conflict that ‘t should only be under-
taken when there is no other alternative. In the instant case
there are several other solutions, most notably specific remedial
legislation by Congress to correct this problem. The State of
Louisiana contends that Congress never envisioned such a con-
flict and they certainly never envisioned that the federal courts
would seize huge amounts of taxpayers’ money as a result of
that conflict. The State certainly does not wish to pass before
this court an interminable parade of horribles which may
emanate from a decision allowing the federal courts to supplant
the state legislatures. Suffice it to say that a ruling allowing
federal court interference in state fiscai matters would be the
beginning of the end of the principles of federalism and separa-
tion of powers as we know them today.
This Court has counseled such restraint by the federal courts
previously. In Metcalf and Eddy v. Mitchell, 269 U. S. 514,
523 (1926), you said that there is an
“. . . essential requirement of our constitutional system
that the Federal government must exercise its authority
within the territorial limits of the states; and it rests on
the conviction that each government in order that it
may administer its affairs within its own, sphere, must
be left free from undue interference by the other.”
And as recently as 1976 in the National League of Cities
case this theory was reaffirmed.
“We have repeatedly recognized that there are attributes
of sovereignty attaching to every state government
which may not be impaired by Congress, not because
Congress may lack an affirmative grant of legislative
authority to reach the matter, but because the constitu-
tion prohibits it from exercising the authority in that
manner.” National League of Cities v. Usery, 426 U.S.
833, 845 (1976).
Judge Lumbard, writing for the 2nd Circuit this past summer
also recognized the necessity of restraint in enforcing monetary
judgments against states. In New York State Association for
Retarded Children v. Carey, ,F. 2d , Nos. 1215,
1235 (2ad Cir. June 4, 1980) 8/ the State of New York signed
a consent decree wherein Governor Carey agreed to make his
best effort to secure funds for specified programs for the re-
tarded.
When the legislature refused to appropriate the money,
plaintiffs moved to have the Governor held in contempt unless
he paid the funds in contavention of the direct orders of the
legislature. The district court granted plaintiff's demands, but
on appeal the 2nd Circuit reversed, writing in part:
“The cases appellees cite did not, however, involve
the remedy ordered in this case: that a state official
expend state funds for a purpose expressly disallowed
by the state legislature. We have previously held, and
repeat here, that a federal district court ought not to
put itself in the difficult position of trying to enforce
a direct order . . . to raise and allocate large sums of
money, . .. steps traditionally left to appropriate execu-
tive and legislative bodies responsible to the voters.”
Carey, supra., . (emphasis added).
Now only have the Eastern District of Louisiana and the
5th Circuit failed to exercise the restraint that should be shown
in federal/state relations, but they have fashioned a new reme-
dy. A very strained and incorrect reading of Federal Rules of
Civil Procedure 69 and 70 is necessary in order to effectuate the
_8/ Reprinted in this Appendix at A-62.
-10-
result that they desire, namely collection of a money judgment
under the provisions of Rule 70 for specific performance.
Rule 69 was intended to control the execution of money
judgments and is governed by state practice and procedure.
Under the applicable Louisiana procedure, the plaintiffs were
unable to execute on their judgment. Judge Rubin, sitting
by designation on the Eastern District Bench, called it an
“intellectually wrong conclusion” that state procedure could
operate to extinguish the right to execution. Accordingly, he
twisted the language of 69 and 70 to allow execution on a
money judgment under 70.
But other courts have not seen the issue in that light. The
Ninth Circuit in Hamilton v. MacDonald, 503 F. 2d 1138
(9th Cir. 1974) recognized that such a result could obtain and
was correct.
It is, of course, somewhat anomalous that the Federal
Rules of Civil: Procedure, which purport to abolish the
distinction between suits at law and equity (F. R. Civ.
P. 2), operate to adopt a state statute extinguishing the
right to execution on a judgment at law for money,
but not in the case of an essentially equitable decree.
The distinction traces to the sources of present Rules
69 (a) and 70. . . . thus, through the combined effect
of Equity rule 8 and R. S. Subsection 916, process to
execute an equitable decree solely for the payment of
money was like that to execute a judgment at law,
according to state pratice. Ibid., 1148.
It is further submitted that if rule 69 were not to apply
to the execution of all money judgments, that there would
have been an exception clearly provided within the terms of
Rule 69.
Nevertheless, both the trial court and the appeal court
A he
relying on the logic of the companion case Gates v. Collier,
extrapolated Hutto to an end certainly not intended by Con-
gress or this Court. Gates uses a series of glib statements to
construct an argument that supports the use of Rule 70 for
execution of a money judgment. The argument, however, never
deals successfully with the problems of federalism and separa-
tion of powers. It merely glosses over the confrontation.
The primary fallacy in the Gates argument is the assumption
that the power to award attorneys’ fees granted by this Court
in Hutto and the power to seize funds out of a state treasury
are the same. They are not. The latter implies a much greater
intrusion into state affairs and the functions of the legislature.
A series of easily rebuttabal arguments buttress the assumption.
Gates postulates that neither Hutto nor the legislative history
of the Act ‘address the question of how to make an unwilling
state or its officials satisfy a judgment for attorney’s fees.”
Gates at 1271. However, the question could just as easily be
stated as how to make a state or its officials who are protected
by state procedure pay.
Gates correctly proceeds to the proposition that Congress
did not deal with this problem because they assumed enforcabi-
lity would be governed by the Federal Rules of Civil Procedure.
But Gates then alleges that Rule 70 comes in to reinforce
rule 69, when enforcement is not available under Rule 69 due
to state procedure. Gates provides no authority for such a
statement, and ignores the fact, as treated earlier in this dis-
cussion, that sometimes judgments simply are not enforcable.
See Hamilton v. MacDonald, 503 F. 2d 1138 (9th Cir. 1974);
South Dakota v. North Carolina, 192 U. S. 448 (1903); Nixon
v. Sirica, 487 F. 2d 700 (D. C. Cir. 1973).
Further, Gates uses quotations from Hutto out of context
-]2-
as the basis for statements of law that have no support. For
instance,
‘“‘a federal court’s interest in orderly, expeditions pro-
ceedings Hutto v. Finney, 437 U. S. at 696, justifies
any reasonable action taken by the court to secure
compliance with its orders.” Gates at 1271.
This is true, but only within a certain context, that context
being that reasonable action by the court must be made within
the framework of the rules of procedure. Gates perverts the
meaning intended by saying that it may twist the rules of civil
procedure to arrive at a result it considers to be reasonable and
equitable.
Gates concludes its argument by citing Judge Rubin’s opinion
on the case at bar while sitting on the Eastern District Bench:
“The issue here is not one of judicial confrontation
with the state. It is one of implementation of a Congres-
sional mandate,’ Id. at 1125 (emphasis added).”” Gates
at 1272.
Both Judge Rubin and the Sth Circuit have simply missed
the point. This is not an either/or situation. It is not judicial
confrontation with the state or implementation of a Congres-
sional mandate. It is implementation of a Congressional man-
date within the context of a judicial confrontation with the
state. In other words, the mandates of Congress as interpreted
by Hutto should be carried out, but this court and the Congress
must find a way to do so without infringing upon the principles
of federalism and separation of powers thought by the Found-
ing Fathers to be necessary to the survivial of this nation as
created.
13.
CONCLUSION
Gary W. is a case of first impression and should be decided
by this court. Hutto did not decide this case. The Sth Circuit’s
assumption that it did is an unwarranted and significant ex-
tension of Hutto.
Some lawyers have made the comment that they regard
the Hutto decision as an invitation to raid State treasuries.
Is that really what this Court meant by that decision? Evident-
ly the district and appellate courts thought so.
When the Department of Health and Human Resources of
the State of Louisiana is ordered to place $225,000.00 in a
bank account controlled by the federal court in direct contra-
vention of Louisiana law and the Federal Rules of Civil Proce-
dure, matters have come to a grave pass.
Congress never contemplated this federal/state confrontation.
This Court has counseled restraint in order to avoid this type
of confrontation. The 2nd Circuit in Carey went out of its
way. to avoid just such a confrontation. Only the erroneous,
strained reading placed on rules 69 and 70 by the district court
and the 5th Circuit permitted the development of this confron-
tation.
Unless this court steps in to bring order out of increasing
chaos the result may be catastrophic to federalism as we have
come to know it.
Respectfully submitted,
WILLIAM J. GUSTE, JR.
ATTORNEY GENERAL
STATE OF LOUISIANA
KENDALL L. VICK
ASSISTANT ATTORNEY GENERAL
PATRICIA NALLEY BOWERS
STAFF ATTORNEY
PAUL A. ECKERT
STAFF ATTORNEY
- ed, CA
—
—_
Ss ae
JUSTICE
234 LOYOLA AVENUE, 7TH FLOOR
NEW ORLEANS, LOUISIANA 70112
PHONE: (504) 568 - 5575
CERTIFICATE OF SERVICE
Undersigned counsel for Petitioner certifies that service
of this Petition for Writ of Certiorari has been made upon
counsel for respondents this date, in accordance with law, by
depositing three copies thereof in the United States Mail,
postage prepaid, to the following persons:
Marion Wright Edelman
Daniel Yohalem
Children’s Defense Fund
1520 N. Hampshire Avenue, N. W.
Washington, D. C. 20036
Stephen Berzon
177 Post Street
Suite 700
San Francisco, California 94108
William Rittenberg
127 Camp Street
New Orleans, Louisiana 70130
-16-
GARY W. et al.,
v.
STATE OF LOUISIANA et al.
Civ. A No. 74-2412
United States District Court,
E. D. Louisiana
Feb. 3, 1977.
ALVIN B. RUBIN, District Judge.
The award of attorneys fees to the plaintiffs in this case is
authorized by recent congressional legislation, The Civil Rights
Attorneys Fees Award Act of 1976, P. L. 94-559, and they will
be granted in the amount stipulated by the parties. L/ This
decision has been reached after full consideration of a number
of issues.
I, THE ELEVENTH AMENDMENT AND P. L. 94-559.
{1,2] The Eleventh Amendment forbids a decree that
would compel a state to pay damages to a private party. Edel-
man v. Jordan, 415 U. S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d
662 (1974) 2/ But the Fourteenth Amendment succeeded the
1/ Statement of Understanding and Joint Stipulation, filed December
27, 1976.
2/ Though this suit is brought against individuals, not against the state
per se, it is, in effect “seeking to impose a liability which must be paid
from public funds in the state treasury . . . .” Edelman, 415 U. S. at 663,
94 S. Ct. at 1356. The individuals are being sued in their official capaci-
ties and not merely as private citizens.
[W]hen the action is in essence one for the recovery of money
from the state, the state is the real, substantial party in interest
and is entitled to invoke its sovereign immunity from suit even
though individual officials are nominal defendants.
Ford Motor Co. v. Department of Treasury, 323 U. S. 459, at 464, 65 S.
Ct. 347, at 350, 89 L. Ed. 389 (1945).
A-1
Eleventh and Section 5 of the Fourteenth Amendment gave
Congress the power to enforce the Fourteenth Amendment
“by appropriate legislation.” Therefore, the Supreme Court
held in Fitzpatrick v. Bitzer, 1976, 427 U. S. 445, 96 S. Ct.
2666, 49 L. Ed. 2d 614, that Congress may enact legislation
permitting damage recoveries against the states when such
legislation is necessary to enforce the Fourteenth Amendment.
Congress may deem that effectuation of the purposes of the
Amendment requires that a state defendant may be held not
only for actual damages in the traditional sense but also for the
attorney’s fees that are necessary in some instances to imple-
ment fully a Civil Rights action. In Bitzer, which involved
the award of attorney’s fees under Title VII of the Civil Rights
Act, the Court recognized that a line of cases defining the
parameters of Sec. five,
As sanctioned intrusions by Congress, acting under the
Civil War Amendments, into the judicial, executive,
and legislative spheres of autonomy previously reserved
to the States. The legislation considered in each case
was grounded on the expansion of Congress’ powers -
with the corresponding diminution of state sover-
eignty-found to be intended by the Framers and made
part of the Constitution ....
96 S. Ct. at 2671. Thus, “. . . the Eleventh Amendment, and
the principle of state sovereignty which it embodies . . . are
necessarily limited by the enforcement provisions of Sec. 5
of the Fourteenth Amendment.” Jd.
Congress, in enacting P. L. 94-599, considered 42 U. S. C.
sec. 1983 as part of the enforcement mechanism of the Four-
teenth Amendment -3/ The report of the House Judiciary
3/ Accord, Wade v. Mississippi Cooperative Extension Service,U. S.
D.C. N. Miss., 424 F. Supp. 1242, 1976.
A-2
Committee states: “Of course, the 11th Amendment is not a
bar to the awarding of counsel fees against state governments.
Fitzpatrick v. Bitzer (citation omitted)”. . R. Rep. No. 94-
1558, 94th Cong., 2d Sess. p. 7. Congressman Drinan, the
author of the bill, said on the House floor shortly before
passage of the bill:
“The question has been raised whether allowing fees against
State governments in suits properly brought under the cover-
ed statutes would violate the 11th Amendment. That Amend-
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 Amendment, any question arising under the
11th Amendment is resolved in favor of awarding fees against
State defendants. 122 Cong. Rec. 12160 (daily ed. Oct. 1,
1976). ” ,
It is true that part of the legal work of plaintiffs’ counsel
was devoted to the claim on behalf of ECA children, which
this court resolved on statutory rather than constitutional
issues. See, the Social Security Act, 42 U. S. C. §608(f) (1).
[3,4] But §1983 was enacted to protect citizens federal
rights, whether statutorily or constitutionally defined from
infringement by state officials. 4/ The plaintiffs’ federal
4 ty of Greenwood Mississippi v. Peacock, 1966, 384 U. S. 808,
86 S. Ct. 1800, 16 L. Ed, 2d 944; Gomez v. Florida State Employment
Service , 5 Cir, 1969, 417 F. 2d 569.
7%
statutory cause of action in Gary W. was brought as a § 1983
claim not on the basis of general federal question jurisdic-
tion. The essence of the plaintiffs’ claims was that their federal
rights had been violated by state officials acting under color of
state law. Thus, their claims are part of the §1983 mechanism
designed to enforce the Fourteenth Amendment.
Moreover, it appears that Congress contemplated enforce-
ment of the policies of the Fourteenth Amendment via P. L.
94-599 with regard to federal statutory rights, »/ Thus, there
is no reason to distinguish between compensation for legal
work accomplished on behalf of the ECA children and work
accomplished on behalf of the DFS children.
Il. APPLICATION OF P. L. 94-599 to “PENDING CASES”.
[5] P. L. 94-599 expressly applies to “‘pending cases”, 6/
The defendants do not dispute that this case is still “pending”
5/ Congressman Drinan stated:
[S]ection 1983 authorizes suits against State and local officials
based upon Federal statutory as well as constitutional rights. For
example, Blue against Craig, 505 F, 2d 830, 4th Cir, 1974.
122 Cong, Rec, 12159 (daily ed. Oct. 1, 1976) (emphasis added), Senator
Kennedy in referring to the types of cases covered by the new Act dis-
cussed, inter alia, a Social Security Act case and stated:
in each of these cases, the victim . . . had to go to court to en-
force the rights promised by Congress or the Constitution. Id.
at 17052 (emphasis added).
_6/ The House Judiciary Committee Report states:
In accordance with applicable decisions of the Supreme Court, the
bill is intended to apply to all cases pending on the date of enact-
ment as well as all future cases, Bradley v. Richmond School Board
H, R. Report No. 94-1558, 94th Cong., 2d Sess. p. 4 n. 6.
A-4
even though an opinion and order have been filed. (Def.’s
brief, p. 2). The question is whether an award can be made
only for those services rendered after the effective dute of the
enactment. In Bradley v. Richmond School District, 1974,
416 U. S. 696, 94 S. Ct. 2006, 40 L. Ed. 2d 476, the court
held that attorneys’ fees might be awarded even though the
statute authorizing recovery of attorneys fees, §718 of the
Emergency School Aid Act, was enacted after the date of
judgment and during the appellate deliberations of the case.
The court in Bradley mentioned concern over “the impact
of [a] change in law upon existing rights, or, to state it another
way, ... the possibility that new and unanticipated obligations
may be imposed upon a party without notice or an opportunity
to be heard,” 416 U. S. at. 720, 94 S. Ct. at 2020-2021. See
Thorpe v. Housing Authority of City of Durham, 1969, 393
U. S. 268, 89 S. Ct. 518, 21 L. Ed. 2d 474. But it found that
the defendant had always been subject to the possibility of a
fees award based on a private attorney general theory or a
finding of bad faith. Nor were new obligations imposed by the
award:
“Even assuming a degree of uncertainty in the law at that
time regarding the Board’s constitutional obligations, there is
no indication that the obligation under §718, if known, rather
than simply the common law availability of an award would
have caused the Board to order its conduct so as to render this
litigation unnecessary and thereby preclude the incurring of
such costs.”
416 U.S. at 722, 94S. Ct. at 2021.
The same considerations apply here. Notwithstanding some
uncertainty in the law on the right to treatment issue, there
has been no showing that the attorneys’ fees statute would
have prompted different behavior by the defendants. It imposed
A-5
no new legal obligation. 1/ This does not mean that a case
might not exist where retroactive application of an attorneys’
fees statute would impose a truly unforeseeable burden; this,
however, is not such a case.
Bradley has been interpreted to justify an award of attorneys’
fees for previously rendered services by the Sth Circuit in
Thompson v. Madison County Board of Education, 1974,
496 F. 2d 782, at 690. See Campbell v. Gadsen County District
School Board, 5th Cir. 1976, 534 F. 2d 650, at 568.
Beyond the Badley precedent for awarding statutorily
authorized attorneys’ fees for work accomplished prior to the
effective date of the enactment, the legislative history of P.
L. 94-599 supports the plaintiffs’ construction of the statute.
Congressman Drinan, sponsor of P. L. 94-599 stated
. , this bill would apply to cases pending on the date
of enactment. It is the settled rule that a change in
statutory law is to be applied to cases in litigation.
In Bradley versus Richmond School Board, the Supreme
Court expressly applied that long-standing rule to an
Attorney fee provision, including the award of fees for
services rendered prior to the effective date of the
statute. Id. at 12160. (emphasis added).
Ii]. APPORTIONMENT OF “PREVAIL.NG PARTY” BASIS.
It is presumed that the stipulation of counsel for plaintiffs
1) See Ferguson v. Winn Parish Police Jury, 5 Cir. 1976, 528 F. 2d
592, n. 13 where the court awarded attorneys’ fees in a Voting Rights
Act suit challenging the apportionment of the police jury and the use
of multi-member districts, a poorly marked legal territory in which the
defendants might well have been unable to foresee the court’s decision.
A-6
and counsel for state-defendants obviates the need for ap-
portionment of fees. The stipulation indicates the number of
hours for which the plaintiffs are to be remunerated, and was
entered into after the defendants briefed the “prevailing party”
issue.
In any event, approtionment of the fees to each discrete
issue in this complex litigation would be virtually impossible.
Many issues were resovled between the parties by agreement
after protracted discussion. The court therefore awards at-
torneys’ fees consistent with the stipulation of the parties. If
the state defendants still pursue their argument and can suggest
a feasible method to the court for apportionment, together
with legal authority that apportionment is warranted, they
may apply for reconsideration.
A-7
GARY W. et al.
v.
STATE OF LOUISIANA et al.
Civ. A. No. 74-2412
United States District Court
E. D. Louisiana
Oct. 25, 1977
As Amended Oct. 31, 1977
ALVIN B. RUBIN, * Circuit Judge:
The plaintiffs, who have obtained a final judgment for their
attorneys’ fees against the State of Louisiana, now seek to
execute on that judgment. The state filed no appeal from the
judgment, and concedes that it is final, but urges that the judg-
ment is in effect uncollectible until the state chooses to pay it.
Because the statute of the Congress that controls this action,
adopted conformably to the Constitution, is the supreme law
of the land, it is the duty of this court to enforce that law and
to order the judgment satisfied.
On February 3, 1977, following extensive briefing and oral
argument, this court ruled that the plaintiffs are entitled to
attorneys’ fees under the Civil Rights Attorneys’ Fees Act of
1976, 90 Stat. 2641, 42 U. S.C. A. § 1988. Gary W., v. State
of Louisiana, E. D. La. 1977, 429 F. Supp. 711. On March
15, 1977, a judgment against the state defendants was entered
*Sitting as District Judge by designation of Chief Judge John R. Brown.
A-8
in accordance with that opinion. Paragraphs 4 through 6 4/
of that judgment ordered the Louisiana Department of Health
and Human Resources (DHHR) to pay the plaintiffs’ court
costs and reasonable attorneys’ fees.
The state defendants did not appeal the court’s judgment.
The time for appeal has long since passed. However, despite the
plaintiffs’ demands for payment, the state defendants have not
complied with the judgment entered against them. The Loui-
siana State Legislature voted this summer not to appropriate
funds sufficient to pay the plaintiffs’ court costs and attorneys’
fees as this court ordered over six months ago.
The state defendants now seek relief from the March 15
judgment, while the plaintiffs seek to enforce it.
Il
[1] The state defendants seek relief from judgment
under Rule 60(b) (1), Fed. R. Civ. Proc., which permits a court
to relieve a party of a final judgment against it on grounds of
“mistake, inadvertence, surprise, or excusable neglect.” The
state takes the position that the court mistakenly, inadvertent-
ly, or by excusable neglect failed to consider the discretionary
nature of attorneys’ fees awarded under 42 U. S.C. A. §1988.
1/ ‘Paragraphs 4 through 6 read as follows:
4. The Department of Health and Human Resources shall pay the
Children’s Defense Fund of the Washington Research Project $174,
519.88 for attorneys’ fees and litigation expenses incurred through
December 22, 1976, together with interest at the legal rate from
date of Judgment.
5. The Department of Health and Human Resources shall pay
William Rittenberg $30,397 for attorney’s fees incurred through
December 22, 1976, together with interest at the legal rate from
date of Judgment.
6. The Department of Health and Human Resources shall pay the
court costs of plaintiffs and plaintiff-intervenor as taxed by the
clerk of the court.
A-9
When the issue was first presented in this court, the state did
not offer in evidence any facts that would justify the denial of
attorneys’ fees to the plaintiff. It filed a brief contending that
attorneys’ fees should not be granted because the state defend-
ants were not in bad faith. This had been the principle applied
in Alyeska Pipeline Service Company v. The Wilderness Society,
1975, 421 U. S. 240, 95 S. Ct. 1612, 44 L. Ed. 2d 141, but the
Alyeska rule was changed by Congress when it enacted Public
Law 94-559, amending 42 U.S. C. A. §1988. The only other
defenses asserted were the applicability of the Eleventh Amend-
ment, the inapplicability of Public Law 94-559 because it was
enacted after this suit was filed, and the claim that the eat-
torneys’ fees should be mitigated because the plaintiffs did
not succeed in proving every issue they had raised initiatly.
Those defenses were likewise discussed in the prior opiaion.
The state never contended, nor did it ever offer any evidence to
show, that the court should, in the light of the principles
embodied in Public Law 94-559, refuse to allow attorneys’
fees. While the state now contends that the award of attorneys’
fees was erroneous under the terms of that statute, it offers
no evidence to support that conclusion.
The Fifth Circuit has recently announced the standard
to guide discretion in awarding attorneys’ fees under 42 U. S.C.
A. § 1988. In Brown v. Culpepper, Sth Cir. 1977, 559 F. 2d
274, the court said that a plaintiff in such an action, if success-
ful, “should ordinarily recover an attorney’s fee unless special
circumstances would render such an award unjust.’ Brown,
supra, 559 F. 2d at 277. This was the rule adopted by the
Supreme Court with respect to Title II of the Civil Rights Act
of 1964, 78 Stat. 244, 42 U. S. C. A. §2000a-3, in Newman
v. Piggie Park Enterprises, 1968, 390 U. S. 400, 402, 88 S. Ct.
964, 19 L. Ed. 2d 1263.
The state defendants have offered no evidence of special
A-10
7%
circumstances that would render the March 15 judgment un-
just. Cf. Northcross v. Board of Ed. of the Memphis City
Schools, 412 U. S. 427, 428, 93 S. Ct. 2201, 37 L. Ed. 2d
48 (1973). The award was not predicated on a finding of bad
faith. It was based on the thesis, since adopted in Brown, that
Congress intended an award to be made unless there were
special circumstances making the award unjust. Therefore, the
defendants’ motion for relief from judgment must be denied.
Ill
The next group of issues deals with the alleged procedural
barriers to enforcement of the order. Faced with the state
defendants’ refusal to comply with the court’s March 15 judg-
ment, the plaintiffs have caused a writ of fieri facias to be
issued to the United States Marshal for the Eastern District of
Louisiana commanding him to seize the:
‘“* , , rights and credits of the Louisiana Department of Health
and Human Resources, particularly funds under the control
of said Department deposited in the American Bank and Trust
of Baton Rouge...”
in an amount sufficient to satisfy that judgment. Plaintiffs now
seek to execute that writ under Rule 69(a), Fed. R. Civ. Proc.
by petitioning to make American Bank and Trust
a garnishee in these proceedings; in the alternative, plaintiffs
move for an order under Rule 70, Fed. R. Civ. Proc., directing
the DHHR to pay the March 15 judgment, plus such additional
fees and expenses as plaintiffs have incurred in securing compli-
ance with that judgment. The state defendants, in turn have
moved to quash the writ.
The state defendants maintain that the plaintiffs are not
entitled to execution under Rule 69(a), or to a Rule 70 order
directing compliance with the March 15 judgment. The state’s
position is set forth in the following series of hypotheses:
A-11
1. The court cannot order the payment of a money judg-
ment under Rule 70 because that rule concerns only the “‘per-
formance of specific acts.”
2. Consequently, any relief must be ordered under the
terms of Rule 69.
3. Rule 69(a) provides that the procedure on execution or
in aid of execution “shall be in accordance with the practice
and procedure of the state in which the district court is held,
. except any statute of the United States governs to the
extent that it is applicable.”
4. Because no federal statute prescribes a garnishment
procedure, DHHR funds may be seized only in accordance with
the “practice and procedure” of the State of Louisiana.
5. The “practice and procedure’’ of Louisiana includes
art. XII, §10(C) of the 1974 Constitution of the State of Louisi-
ana, which provides:
“The legislature shall provide a procedure for suits against the
state, a state agency, or a political subdivision. It shall provide
for the effect of a judgment, but no public funds shall be sub-
ject to seizure. No judgment against the state, a state agency,
or a political subdivision shall be exigible, payable, or paid
except from funds appropriated therefor by the legislature
or by the political subdivision against which judgment is ren-
dered.”
6. Because Louisiana law proscribes the seizure of public
agency funds, relief cannot be awarded under Rule 69.
The court has parsed the state defendants’ argument in de-
tail because it is a delicately wrought chain of apparent logic
that leads to an ineluctably wrong conclusion. The defendants
would have the court read the Federal Rules of Civil Procedure
A-12
in such fashion as to permit Louisiana or any other state to
ignore a federal judgment against it merely by enacting a
statute prohibiting the garnishment of state funds. If the
State of Louisiana may be relieved from satisfying this judg-
ment by a provision enacted in the past, albeit for a different
purpose, and embedded in the Constitution, then any other
state may achieve the same result.
{2] The issue here is not one of judicial confrontation
with the state. It is one of implementation of a Congressional
mandate. Following the decision in Alyeska Pipeline Service
Co. v. Wilderness Society, 1975, 421 U. S. 240, 95 S. Ct. 1612,
44 L. Ed. 2d 141, the Congress might have chosen to take no
legislative action. Or it might have decided to broaden the
basis for an award of attorneys’ fees against private litigants
but not to permit their recovery from the states. Instead it
chose to enact legislation granting the right to recover at-
torneys’ fees against all litigants as a means of strengthening
its efforts to protect individual rights under the powers con-
ferred by Section 5 of the Fourteenth Amendment to the
Constitution. When Congress determines to act pursuant to
the powers conferred on it by the Fourteenth Amendment,
its enactments take precedence over the laws of the states.
Neither state law nor the Eleventh Amendment protects states
from suits under such laws. Fitzpatrick v. Bitzer, 1976, 427
U. S. 445, 96 S. Ct. 2666, 49 L. Ed. 2d 614.
[3] Although Congress has spoken clearly, the state
defendants in effect contend that a judgment against a state
pursuant to the statutory command is merely hortatory, and
the state may elect not to satisfy it. But the statutes of the
Congress and the judgments of the federal courts enforcing
them are not precatory. They are, as the Constitution declares,
the supreme law of the land. U. S. Const. art. VI.
The Fifth Circuit has recently upheld an order issued under
Rule 70 that directed state defendants to pay a money judg-
A-13
7%
ment. In Gates v. Collier, 5th Cir., 1977, 559 F. 2d 241, the
court directed the payment of attorneys’ fees to successful
plaintiffs under 42 U. S. C. A. §1988, the statute involved
here. This is a recent, fully considered construction. This trial
court would be bound by that interpretation even were its
views different. Gates is authority both for the award of at-
torneys’ fees against the state, and for the propriety of using
Rule 70 for such a monetary allowance.
[4] The same procedure was approved in Gilbert v.
Johnson, 5th Cir. 1974, 490 F. 2d 827, where the court held
that the plaintiff properly sought monetary relief for unlaw-
ful dismissal from his position with a Veterans Administration
Hospital under Rule 70. Cf., Finney v. Hutto, 8th Cir. 1977,
548 F. 2d 740 . These cases indicate that Rule 70 may be used
as a means to collect a money judgment rendered in an equit-
able proceeding. Consequently, the relief the plaintiffs seek
is permissible under Rule 70.
[5] The difficult problems of construing Rule 69 need
not be faced because relief is available under Rule 70. How-
ever, perhaps supererogatorily, those problems will be discussed
so that the appellate court will have my views before it should
that court reach the issue. Rule 69(a) provides, in part:
“The procedure on execution, in proceedings supplementary
to and in aid of a judgment, and in proceedings on and in
aid of execution shall be in accordance with the practice and
procedure of the state in which the district court is held,
. . except that any statute of the United States governs to the
extent that it is applicable.”
The defendants correctly insist that the state ‘“‘practice and
procedure” to which Rule 69(a) refers includes states ex-
ceptions of particular property from execution, such as Louisi-
ana’s constitutional proscription against the seizure of public
funds. La. Const. art. XII, §10(c). But if a federal statute is
A-14
applicable, federal statutory exemptions govern execution
practice, Drafter’s Committee Note of 1937 to Rule 69(a), 7
Moore’s Federal Practice 469.01[2] (2d Ed. 1975). It would
be anomalous to interpret the rule so that an applicable federal
statute imports the federal exemptions of property from
execution, while the state “practice and procedure” referred
to in the same sentence does not include the protection of
state exemptions. Cf., United States v. Miller, 3d Cir. 1956,
229 F. 2d 839.
If the plaintiff relies on the state procedure, the state ex-
emption is applicable. On the other hand, if the provisions of
42 U.S.C. A. §1988 are applicable, then that “statute of the
United States governs.” It is literally true that §1988 says
nothing about the means of collecting the attorneys’ fees it
authorizes. Further, those federal statutes cited by the 1937
committee as controlling under Rule 69 speak of execution di-
rectly, while § 1988 does not.
[6,7] However, a remedial statute should not be read as
if it were a lexicon for scriveners. ‘The duty of ascertaining
[an enacted law’s] meaning is difficult enough at best and one
certain way of missing it is by reading it literally . . .”” Address
by Judge Learned Hand, April 10, 1959, in Leflar, Appellate
Judicial Opinions 73 (1974). While §1988 does not mention
the method of its enforcement, the origin and purpose of the
1976 amendment suggest that Congress intended both to
create the entitlement to the fees and to provide a means of
enforcing this remedy. The statute was adopted to provide
attorneys’ fees in situations where they were not available
under the Alyeska rule. It was intended to apply to states
and state officials. And it was intended to be effective against
them, not to be hortatory. The Senate report recites:
“As with the cases brought under 20 U. S. C. §1617,
the Emergency School Aid Act of 1972, defendants in these
cases are often State or local bodies or State of local officials.
A-15
“In such cases it is intended that the attorneys’ fees, like other
items of costs, will be collected either directly from the official,
in his official capacity, from funds of his agency or under his
control, or from the State or local government (whether or not
the agency or government is a named party).”
S. Rep. No. 94-1011, 94th Cong., 2d Sess. (1976), U. S. Code
Cong. & Admin. News, 1976, pp. 5908, 5913. (Emphasis
added.) Within the last month, the Fifth Circuit has twice
held that judicial interpretation of §1988 is to be guided by
this passage. Gates, supra, at 243; Universal Amusement Com-
- pany v. Vance, 5th Cir. 1977, 559 F. 2d 1286, at 1301 & n.
36. See also, Finney v. Hutto, 8th Cir. 1977, 548 F. 2d 740,
742. The evident purpose of the statute compels us to construe
§ 1988, not state procedure, as being applicable for purposes
of Rule 69.
This conclusion is buttressed by the history of Rule 69.
That rule was originally drafted to follow 28 U. S. C. §729
(1940), a statutory predecessor to 42 U. S. C. § 1988. 7 Moore’s
Federal Practice 469.01[2] (2d Ed. 1975). At that time §
1988 said nothing about attorneys’s fees but provided merely:
The jurisdiction in civil and criminal matters conferred
on the district courts by the provisions of this chapter
and Title 18, for the protection of all persons in the
United States in their civil rights, and for their vindi-
cation, shall be exercised and enforced in conformity
with the laws of the United States, so far as such laws
are suitable to carry the same into effect; but in all
cases where they are not adapted to the object, or are
deficient in the provisions necessary to furnish suitable
remedies and punish offenses against law, the common
law, as modified and changed by the constitution and
statutes of the State wherein the court having juris-
diction of such civil or criminal cause is held, so far as
the same is not inconsistent with the Constitution and
A-16
laws of the United States, shall be extended to and
govern the said courts in the trial and disposition of
the cause, and, if it is of a criminal nature, in the inflic-
tion of punishment on the party found guilty.
It then specifically contemplated that state and federal law
would play complementary roles in securing civil rights. It is
reasonable to believe that, in amending §1988, Congress in-
tended to alter those respective roles, and to give extra en-
couragement to plaintiffs who seek to enforce civil rights in
federal courts. Congress thus gave further emphasis to the
federal interest in civil rights enforcement. The same federal
interest that led to the creation of the right must extend to an
adequate means of enforcing it. Construing Rule 69 to permit
the recovery of attorneys’ fees against states notwithstanding
a state proscription against the seizure of public funds is
consistent with that interpretation.
Conversely, state procedure was held to govern federal ex-
ecution of judgments in cases where there was no significant
federal interest in the remedy. In Yazell v. United States,
1966, 382 U. S. 341, 86 S. Ct. 500, 15 L. Ed. 2d 404 aff’g
United States v. Yazell, Sth Cir. 1964, 334 F. 2d 454, the
Supreme Court held that the law of coverture in Texas pre-
cluded the United States from collecting on a Small Business
Administration disaster loan from the separate property of the
debtor wife. The court said:
We do not here consider the question of the constitu-
tional power of Congress to override state law in these
circumstances by direct legislation. . . . We decide
only that this Court, in the absence of specific congres-
sional action, should not decree in this situation that
implementation of federal interests requires overriding
the particular state rule involved here.
A-17
7%
382 U. S. at 352, 86 S. Ct. at 506.
Here, however, Congress has acted. Cf., Huddleston v. Dwyer,
1944, 322 U. S. 232, 64S. Ct. 1015, 88 L. Ed. 1246 holding
that state law controls the question whether a county must
levy a tax to pay off bonds on a cause of action arising under
state law.
The plaintiffs have stated in oral argument that they have
no preference with respect to the type of relief granted, while
the state defendants have stated that, if relief is to be granted,
they would prefer an order issue pursuant to Rule 70.
[8] State defendants were given an opportunity, even
after these motions were heard, to suggest a manner in which
they would satisfy the judgment. But they have not offered
any kind of compliance with the judgment, direct or indirect,
soon or after an interval. This court would not be fulfilling
its duty if it failed to enforce the constitutional statutes of the
Congress. Pursuant to that duty, it grants the plaintiffs the
relief they seek in accordance with the procedure set forth in
Rule 70.
IV
[9] In accordance with this opinion, an order shall issue
directing state defendants to pay plaintiffs’ attorneys from
DHHR funds those fees and costs specified in the March 15,
1977 judgment, plus interest.
In addition, the plaintiffs seek attorneys’ fees and costs
to compensate them for the present action to enforce the
March 15 judgment. The Fifth Circuit Court of Appeals has
not decided whether such relief is available on facts such as
those before the court. The Court of Appeals has, however,
held that an award of attorneys’ fees under Title II of the
Civil Rights Act of 1964, supra, may include compensation
A-18
for the defense of an appeal on the propriety of attorneys’
fees. Miller v. Amusement Enterprises, Sth Cir. 1970, 426
F. 2d 534, 539. The state defendants here have contested the
plaintiffs’ right to attorneys’ fees through resistance, rather
than appeal. The cost of overcoming that resistance, like the
cost of defending an appeal successfully, is rightly compensable
under 42 U. S. C. A. §1988, the terms of which are identical
to the provisions regarding attorneys’ fees in Title II.
The parties have stipulated that, if this amount is recover-
able, the sum due is $2,322.00 to the Children’s Defense Fund,
and $1,000.00 to William Rittenberg. These amounts will
be added to the judgment.
West Key Number System
A-19
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GARY W., ET AL.
VERSUS
STATE OF LOUISIANA, ET AL.
CIVIL ACTION
NO, 74-2412
SECTION “C”
Filed Nov. 16, 1977
ORDER FIXING SECURITY IN THE FORM OF ESCROW
ACCOUNT IN LIEU OF SUPERSEDEAS BOND FOR STAY
OF EXECUTION PENDING APPEAL
This cause came on to be heard on Motion of Defendant,
Dr. WILLIAM CHERRY, Secretary of Louisiana Department of
Health and Human Resources, for waiver of supersedeas bond
as security for stay of execution granted by order herein on
October 28, 1977, and it appearing to the court that an escrow
account would be as appropriate as a supersedeas bond for
security for the stay.
IT IS ORDERED that a supersedeas bond to secure the
stay of execution granted by order herein on October 28,
1977, is not required and, in lieu of such supersedeas bond,
the defendant, DR. WILLIAM CHERRY, within ten days
thereafter shall place in an escrow account with a bank or
other solvent depositary the sum of $225,000, which princi-
pal sum shall not be withdrawable nor transferable except on
order to the bank or other solvent depositary by the Clerk
of the United States District Court, Eastern District of Louisi-
ana, and which shall come from the funds of the Department
A-20
of Health and Human Resources, notwithstanding any state
constitutional or statutory provision to the contrary.
IT IS FURTHER ORDERED that the escrow account may
be interest bearing and that the defendant may elect to with-
draw interest for the use and benefit of the Department of
Health and Human Resources or the State of Louisiana as such
interest becomes withdrawable without encroaching upon the
original $225,000 principal in the account.
IT IS FURTHER ORDERED that the Clerk of the United
States District Court, Eastern District of Louisiana, shall issue
an order directing the bank or other solvent depositary to pay
from the escrow account to plaintiffs’ attorneys, if they should
prevail on appeal, the amount of attorneys’ fees that has been
awarded in this case, plus interest, with any remainder to be
paid to defendant for the use and benefit of the Department
of Health and Human Resources; or to pay defendant, if he
should prevail on appeal, the entire amount of the escrow
account for the use and benefit of the Department of Health
and Human Resources, Said order shall issue within ten days
after expiration of the time limit for applying for a Writ of
Certiorari to the United States Supreme Court following a
final decision by the United States Court of Appeals for the
Fifth Circuit, unless a petition for Writ of Certiorari has been
timely filed with the United States Supreme Court, or, if a
petition for a Writ of Certiorari is filed, within ten days after
a final decision by the United States Supreme Court.
IT IS FURTHER ORDERED that the terms of the escrow
account shall incorporate this order so that the bank or other
solvent depositary shall be required to deliver the funds in
said escrow account immediately upon receipt of the order
of the Clerk of Court, required by this order,
IT IS FURTHER ORDERED that nothing in this order
shall be deemed to limit plaintiffs’ right to collect from de-
A-21
fendant any attorneys’ fee or interest owed their attorneys
by defendant that exceeds the amount held in escrow.
DATED: November 15, 1977
Alvin B, Rubin/s/
UNITED STATES DISTRICT
JUDGE
A-22
_-
GARY W. et al.
Plaintiffs-Appellees
Vv.
STATE OF LOUISIANA, ET AL.
Defendants
Dr. William Cherry, Secretary of the Louisiana
Department of Health and Human Resources,
Defendant-Appellant
No. 77-3245
United States Court of Appeals
Fifth Circuit
July 31, 1980
GOLDBERG, Circuit Judge
This class action litigation concerning mentally retarded,
emotionally disturbed, and other children from Louisiana who
have been placed in Texas for care and treatment in institutions
was commenced in 1974. Plaintiffs obtained relief ensuring
adequate care and treatment for class members, see Gary W.
v. State of Louisiana, 437 F. Supp. 1209 (E. D. La. 1976),
and were held entitled to attorney’s fees under the Civil Rights
Attorneys’ Fees Act of 1976, 90 Stat. 2641, 42 U.S. C. §1988.
See Gary W. v. State of Louisiana, 429 F. Supp. 711 (E. D.
La. 1977).
The judgment for attorney’s fees was not appealed, but the
state defendants refused to accede to plaintiffs’ demands for
payment. The plaintiffs then, on September 2, 1977, caused
the clerk of the district court to issue a writ of fieri facias
directing the United States Marshal for the Eastern District
A-23
ee
7%
of Louisiana to seize property of the Louisiana Department
of Health and Human Resources (“‘DHHR”’) in order to satis-
fy the judgment. The defendants countered by moving to quash
the writ of fieri facias on the ground that state law prohibits
the seizure of public property to satisfy a judgment against
the state or a state agency and by seeking relief from the
judgment under Fed. R. Civ. P. 60(b) (1).
After a hearing, the district court denied defendants’ motion
for relief from judgment and issued an order based on Fed. R.
Civ. P. 70-1/ directing defendant William Cherry, in his official
capacity as Secretary of DHHR, to pay the judgment from
DHHR funds. Defendants appeal from the court’s denial of
their Rule 60(b) motion and from its order compelling pay-
ment of the judgment.
[1,2] A. Rule 60(b) Motion. A ruting on a motion under
Rule 60(b) will not be overturned absent an abuse of discretion.
See Dugan v. United States, 521 F. 2d 231, 233 (Sth Cir. 1975);
Hand v. United States, 441 F. 2d 529, 531 (Sth Cir. 1971).
Appellants’ argument is that the trial court did not realize
it had discretion to deny attorney’s fees when it originally
ruled on the request for attorney’s fees and that its failure to
exercise its discretion constituted ‘‘mistake, inadvertence or
excusable neglect.” Brief for Appellants at 34. However, even
if the trial court had applied an incorrect legal standard when
assessing attorney’s fees, 2/ the proper way to challenge its
1/ =‘ The state defendants indicated to the trial court that they preferred
an order under Rule 70 to one under Rule 69. The plaintiffs stated that
they were indifferent between these choices.
2/ It did not, but followed our decision in Brown v. Culpepper, 559 F.2d
274 (5th Cir. 1977), which held that prevailing plaintiffs in civil rights
actions should ordinarily recover an attorney’s fee unless special circum-
stances would render such an award unjust. Id at 277; See Christianburg
Garment Co. v. E. E. O. C., 484 U. 8, 412, 417, 98 S. Ct. 694, 698, 54
L. Ed. 2d 648 (1978).
A-24
ruling in the court of appeals is by appeal of its ruling, not by
appeal of a denial of a Rule 60(b) motion. See Silk v. Sandoval,
435 F. 2d 1266 (1st Cir. 1971). Therefore, the district court’s
denial of the Rule 60(b) motion is affirmed.
[3] B. Order compelling Payment.
Appellants argue that federal courts lack power to ensure
compliance with money judgments against states unless state
law provides a means of enforcing such judgments. The Louisi-
ana Constitution prohibits the payment of judgments against
the state except from funds appropriated for that purpose by
the legislature. 3/ On two occasions bills were introduced in
the Louisiana legislature which would have authorized payment
of the judgment, but neither bill was passed. Appellants urge
that the federal court can do nothing to ensure compliance
with its judgment 4/ because Fed. R. Civ. P. 69(a)-2/provides
3/ La. Const. art XII, §10(c) provides:
The legislature shall provide a procedure for suits against the state, a state
agency, or a political subdivision. It shall provide for the effect of a judg-
ment, but no public property or public funds shall be subject to seizure.
No judgment against the state, a state agency, or a political subdivision
shall be exigible, payable, or paid except from funds appropriated there-
for by the legislature or by the political subdivision against which judg-
ment is rendered.
4/ At oral argument, appellants suggested that appellees might seek a
contempt citation against the Louisiana legislature for failing to appro-
priate funds to satisfy the judgment. However, the Louisiana legislature
is not a party to this action. Moreover, the chaos in the state appropria-
tions process appellants predict if the court’s order is affirmed would be
dwarfed by the disruption that would be caused by a contempt citation
against the state legislature, if such a sanction is possible.
5/ Rule 69(a) states in relevant part:
Process to enforce a judgment for the payment of money shall be a
writ of execution, unless the court directs otherwise. The procedure on
execution, in proceedings supplementary to and in aid of a judgment, and
in proceedings on and in aid of execution shall be in accordance with
A-25
7%
that procedures for enforcement of a judgment are to be
carried out in accordance with state law and because Fed. R.
Civ. P. 70-6/ does not provide an alternate means for executing
a money judgment.
This argument has recently been addressed and rejected by
this court in Gates v. Collier, 616 F. 2d 1268 (5th Cir. 1980).
Gates involved the enforcement of a money judgment for
attorney’s fees in a civil rights action against the state of
Mississippi. A Mississippi statute prohibits the satisfaction of
any judgment against the state “except by an appropriation
therefor by the legislature.” Miss. Code Ann. § 11- 45-5
(1972).-2/ The court said:
[W]here a state expresses its unwillingness to comply
with a valid judgment of a_ federal district court, the
court may use any of the weapons generally at its dis-
posal to ensure compliance.
5/Continued
the practice and procedure of the state in which the district court is
held, existing at the time the remedy is sought, except that any statute
of the United States governs to the extent that it is applicable.
6/ Rule 70 states in relevant part:
If a judgment directs a party to execute a conveyance of land or to
deliver deeds or other documents or to perform any other specific act and
the party fails to comply within the time specified, the court may di-
rect the act to be done at the cost of the disobedient party by some
other person appointed by the court and the act when so done has like
effect as if done by the party . .. . The court may also in proper cases
adjudge the party in contempt.
‘I Miss. Code Ann. § 11-45-5 (1972) provides:
A judgment or decree against the state shall not be satisfied except
by an appropriation therefore by the legislature, and an execution shall
not be issued against the state.
A-26
Only when the district court’s response to the recalci-
trance of a litigant is so inappropriate under the circum-
stances as to amount to an abuse of discretion will the
Court of Appeals intervene . . . If statutory authority is
needed for the court’s actions, it may be found in Fed.
R. Civ. P. 70.
Gates. supra, 616 F. 2d at 1271.
We perceive no relevant distinction 8/between Gates and the
instant case. In both cases, an order directing the responsible
state official to satisfy the judgment out of state funds is the
only reasonable way to ensure compliance with a valid federal
judgment.
Therefore, the decision of the district court is affirmed, and
the case remanded for a determination of attorney’s fees for
8/ Appellees suggest that Gates can be distinguished because the
Mississippi statute, unlike the Louisiana constitutional provision, See n.
3 supra, does not expressly prohibit seizure of public funds. We see no
relevance to this distinction, since the provisions in each state provide
that judgment against the state shall only be satisfied by an appropriation
for that purpose by the state legislature. Also, the Mississippi statute pro-
hibits the issuance of executions against the state. Therefore, Mississippi
state property is not subject to seizure by writ of execution.
A second difference is that the Louisiana prohibition is contained in
the state constitution, whereas the Mississippi prohibition is contained in
a statute. Under the Supremacy Clause of the United States Constitution,
U. S. Const. art., VI cl. 2, state constitutional provisions, as well as state
statutes, must comport with federal law. Therefore, this distinction,
too, is irrelevant to the rationale of Gates. See Gates, supra, 616 F. 2d at
1272.
A-27
>
work performed on this appeal. See, e. g., Miller v. Carson,
563 F. 2d 741, 756 (Sth Cir. 1977).
AFFIRMED and REMANDED.
West Key Number System
A-28
Nazareth GATES et al.,
Plaintiffs-Appellees,
v.
John COLLIER, Superintendent of the Mississippi
State Penitentiary, et al.
Defendants-Appellants.
No. 79-1844
United States Court of Appeals
Fifth Circuit
May 14, 1980
JAMES C. HILL, Circuit Judge:
This Court is not unanimous in its resolution of the two
issues presented. All of us agree on the resolution of the issue
presented in Part I. However, in Part II, Judges Brown and
Randall concur with Judge Hill dissenting-L/
This litigation over conditions at Mississippi’s Parchman
Penitentiary began in 1971. In 1974 we affirmed the district
court’s finding that various practices existing at Parchman
violated the constitutional rights of inmates. 501 F. 2d 1291
1) The appellate opinion procedure used in this case is not uncommon.
See, e. g., Usery v. Tamiami Trail Tours, Inc., 531 F. 2d 224, 239 (5th Cir.
1976); United States v. Register, 496 F. 2d 1072, 1075-76 (5th Cir.
1974), cert. denied, 419 U. S, 1120, 95 S. Ct. 802, 42 L. Ed. 2d 819
(1975); Stanga v. McCormick Shipping Corp., 268 F. 2d 544, 546, 551
(5th Cir. 1959). Cf. Grigsby v. Coastal Marine Service of Texas, Inc.,
412 F. 2d 1011, 1023 (5th Cir. 1967).
A-29
(5th Cir. 1974). The succeeding 5 years of litigation primarily
involved the issue of attorneys’ fees. In our most recent con-
sideration of this case we affirmed awards of attorneys’ fees
plus expenses in favor of the plaintiffs and reversed the dis-
trict court’s order denying fees for appellate proceedings. 559
F. 2d 241 (Sth Cir. 1977). On January 25, 1979, the district
court entered an order reaffirming its original award and award-
ing fees for appellate work. Two aspects of that order are now
challenged by the defendants. First, the order directs that
Mississippi’s Auditor and Treasurer be added as defendants
and that the other defendants submit a requisition to the
Auditor for the issuance of a warrant upon the Treasurer to
satisfy the judgment out of funds appropriated for the opera-
tion of Parchman or out of any other funds subject to the
control of the Treasurer. Second, the order adds to the princi-
pal amounts owing for attorneys’ fees and other costs, post-
judgment interest at the rate of 8% per annum.-2/
I. The Directive to Pay
Defendants contend that the district court acted outside the
scope of its authority in ordering the State Auditor to issue a
warrant upon the State Treasurer and ordering the State Trea-
surer in turn to satisfy the judgment. We are directed to sever-
al provisions of the Mississippi Code which limit the authority
of the State Treasurer to disburse state funds. In particular,
Miss. Code Ann. § 11-45-5 (1972) prohibits the satisfaction
of any judgment against the State “except by an appropria-
2/ Interest on the initial award of $41,750 for attorneys’ fees and
$10,986.05 for other costs runs from February 14, 1973, the date of
the original judgment. Interest on the supplemental award of $2,562.50
for time spent on appeal runs from August 10, 1978.
A-30
tion therefore by the legislature.” 3/ The district court’s
order, it is urged, is contrary to the laws of Mississippi and re-
quires the State Auditor and the State Treasurer to violate
these valid laws. Thus, we are urged to hold that, unless the
Mississippi statutes are declared unconstitutional, these plain-
tiffs must simply wait until the State voluntarily satisfies the
judgment. 4/
[1] The awards which the district court has ordered the
defendants to satisfy out of state funds were made pursuant
to the Civil Rights Attorneys’ Fee Awards Act of 1976, 42
U. S. C. A. §1988. In providing statutory authority for the
award of attorneys fees to successful civil rights claimants,
Congress was acting pursuant to the enforcement powers
conferred on it by Section 5 of the Fourteenth Amendment.
See Hutto v. Finney, 437 U. S. 678. 693-94, 98 S. Ct. 2565,
2575-76, 57 L. Ed. 2d 522 (1978). Hutto made it clear that,
by exercising its power under Section 5, Congress successfully
3/ Two other sections of the Mississippi Code relating to the State
Treasurer’s authority are quoted in defendants’ brief:
Miss. Code Ann. § 7-9-9 (1972):
It shall be the duty of the state treasurer to receive and keep
moneys of the state in the manner provided by law, [and] to
disburse the same agreeably tolaw .. .
Miss. Code Ann.§ 7-9-13 (1972):
It shall not be lawful for the state treasurer to pay or receive
any money on account of the state but on the warrant or certi-
ficate of the auditor, issued pursuant to law.
4/ There is no indication that the plaintiffs have attempted to take
their valid judgment and levy on state property. However, the State does
not argue that a judgment creditor must proceed in that fashion.
A-31
abn ;ated the States’ Eleventh Amendment immunity. 5/
Thus, it is now beyond dispute that a federal district court
has the authority to order that attorneys’ fees be paid out of
a state’s treasury. The defendants do not disagree. Their posi-
tion is, in effect: you can order us to pay, but you can’t make
us pay if we don’t want to.
[2,3] Neither Hutto nor the legislative history of the Act
address the question of how to make an unwilling state or it’s
officials satisfy a judgment for attorneys’ fees. This is not
surprising however, for it has never been the practice of Con-
gress, when providing a statutory basis for the recovery of
money damages or costs including attorneys’ fees, to specify
in the same legislation the appropriate means of enforcing the
judgment. In all likehood, Congress assumed it was unneces-
sary to consider the subject because the Federal Rules of
Civil Procedure contains a provision for the execution of
district court judgments, Fed. R. Civ. P. 69 and a provision
authorizing the court to appoint an individual to do any act
on behalf of a party who has refused to comply with the judg-
ment himself, Fed R. Civ. P. 70. We have been cited to no au-
thority, nor have we found any to indicate that these statutes
do not apply to a state and its officials Cf. Gary W. v. State of
Louisiana, 601 F. 2d 240, 246 (Sth Cir. 1979). In addition,
“{a] federal court’s interest in orderly,expeditious proceed-
ings,” Hutto v. Finney, 437 U. S. at 696, 98 S. Ct. at 2577,
justifies any reasonable action taken by the court to secure
compliance with its orders. In Hutto, the Court remarked:
“[A] federal court may treat a State like any other litigant
when it assesses costs,” 437 U. S. at 696, 98 S. Ct. at 2577,
5/ The Hutto court also found justificaiion for imposing attomeys’
fees on states in “ ‘the inherent authority of the Court in the orderly
administration of justice as between all parties litigant.’ ” 437 U. S. at
696, 98 S. Ct. at 2577 (quoting Fairmont Creamery Co. v. Minnesota
275 U. 8. 70, 74, 48 8. Ct. 97, 99, 72 L. Ed, 168 (1927)).
A-32
and “{w]hen a State defends a suit for prospective relief
it is not exempt from the ordinary discipline of the courtroom”
Id. at 695-96 n. 24, 98 S. Ct. at 2576 n. 24. We think this is
adequate support for the proposition that, where a state ex-
presses its unwillingness to comply with a valid judgment of
a federal district court, the court may use any of the weap-
ons generally at its disposal to ensure compliance. “[ F] ederal
courts are not reduced to issuing [judgments] against state
officers and hoping for compliance” Jd. at 690, 98 S. Ct. at
2574. Only when the district court’s response to the recalci-
trance of a litigant is so inappropriate under the circumstances
as to amount to an abuse of discretion will the Court of Appeals
intervene. Here, the district court acted well within its authori-
ty to ensure compliance with its lawful orders. If statutory
authority is needed for the court’s actions, it may be found
in Fed. R. Civ. P. 70. 6/ The defendants have made it abun-
6/ Rule 70 states in pertinent part:
If a judgment directs a party to. . . perform any. . . specific act and
the party fails to comply within the time specified, the court may direct
the act to be done at the cost of the disobedient party by some other
person. . . The court may also in proper cases adjudge the party in con-
tempt. Fed. R. Civ. P. 70.
In Gary W. v. State of Louisiana, 441 F. Supp. 1121 (E. D. La. 1977),
the plaintiffs, after unsuccessful attempts to collect on their judgment,
petitioned the court for an order directing the Louisiana Department of
Health and Human Resources to pay a judgment for attorneys’ fees. In
granting the order. Judge Rubin, sitting by designation on the district
court, rejected the argument that Rule 70 may not be invoked to secure
satisfaction of a judgment against the State of Louisiana for attorneys’
fees. In dictum, Judge Rubin also rejected the argument that a garnish-
ment order under Fed. R. Civ. P. 69 could not be granted because-of a
Louisiana statute prohibiting the satisfaction of a judgment against the
State except from funds appropriated for that purpose by the state leg-
islature. In response to this argument, Judge Rubin stated that Louisiana
could not simply elect not to pay an award made pursuant to an Act
of Congress. Support was found in the Supremacy Clause of the Consti-
tution. An appeal is now pending before this Court.
A-33
dantly clear that they intend to resist the judgment until the
bitter end. Given such obstinance, we think it beyond perad-
venture that the remedy fits the wrong.
[4] We recognize that our discussion thus far does not
directly address the defendants’ argument that they cannot be
required to violate the laws of Mississippi. The defendants
misconceive the issue. As Judge Rubin of this Court, sitting by
disignation in Gary W. v, State of Louisiana, 441 F. Supp.
1121 (E. D. La. 1977), responded when recently confronted
with the identical argument: “The issue here is not one of
judicial confrontation with the state. It is one of Implementa-
tion of a Congressional mandate,’’ Id, at 1125 (emphasis added)
The italicized words provide the key. Congress has declared
that states and their officials who violate federal civil rights
laws must reimburse the successful plaintiff for costs incurred
in seeking redress. To strike down the order in this case because
it conflicts with the laws of Mississippi would be no different
than reversing a bare judgment for attorneys’ fees. In either
case, we would be allowing the state, by legislative action, to
recloak itself with the Eleventh Amendment immunity which
Congress has chosen to remove. Such a result would be con-
rary to the command of the Supremacy Clause of the United
States Constitution. Z/
IL. Interest on the Awards 8/
Defendants challenge the authority of the District Court
to add post-judgment interest on attorneys’ fees and out-of-
1) “This Constitution, and the Laws of the United States which shall
be made in Pursuance thereof. . . shall be the supreme Law of the
Land.” U. S. Const. Art, VI, ci 2.
8/ ‘Part II was authored by Judge Brown.
A-34
pocket costs. We believe that interest was properly awarded
on attorneys’ fees but not on costs.
A
Defendants vigorously contend that under this Court’s
decision in Carpa, Inc. v. Ward Foods, Inc., 567 F. 2d 1316
(Sth Cir. 1978), we are precluded from awarding interest on
attorney’s fees and costs under the Civil Rights Attorneys’
Fee Awards Act, 42 U. S. C. A. §1988 (hereafter referred to
as §1988 or the Act). 3/ Despite Judge Hill’s strong expres-
sions, see (dissent), pp. 1283-1284, we fully subscribe to princi-
ples of stare decisis and recognize that a decision by one panel
of this Court is binding on other panels. E. g., Trunkline Gas
Co. v. Federal Energy Regulatory Commission, 608 F. 2d 582,
583 (Sth Cir. 1979), But we are convinced that Carpa is not
controlling on the question before us and we have not been un-
faithful to it in deciding the way we do.
In Carpa, this Court held that under 15 U. S.C. A. § 15
(hereafter referred to as §15), interest on attorneys’ fees can-
not be recovered. Section 15 provides: “Any person who shall
be injured in his business or property by reason of anything
forbidden in the antiturst laws . . . shall recover threefold the
damages by him sustained, and the cost of suit, including a
reasonable attorney’s fee.” The Court’s holding was a very
narrow one. As the Court stated: ‘“‘Our holding that attorneys’
fees in antitrust cases are not to bear interest implies nothing
9/ The Act Provides:
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 discre-
tion, may allow the prevailing party, other than the United States,
a reasonable attorney’s fee as part of the costs.
A-35
Whatsoever about the propriety of interest on attorneys’ fees
authorized by other statutes.” 567 F. 2d at 1323 (emphasis
added). This language suggests in clear and unmistakable terms
that each attorneys’ fees statute must be carefully analyzed
to determine whether interest should be awarded.
The Court in Carpa gave two reasons which together led to
its conclusion. First, the Court pointed out that attorneys’
fees are defined under § 15 as part of costs and the costs do not
bear interest. Second, the Court emphasized the existence of
treble damages under §15 and suggested that the need for
interest on attorneys’ fees was therefore less critical in the anti-
trust context than in other contexts.
In analyzing Carpa, Judge Hill in dissent reads the case as
relying exclusively on the definition of attorneys’ fees as part
of costs. See (dissent), p. 1282. Since § 1988 also defines at-
torneys’ fees as part of costs, see note 2, supra, Judge Hill
reasons ipso facto that interest on attorneys’ fees under §1988
is not recoverable.
In our view, this reading of Carpa is misplaced, since it
completely overlooks the Court’s repeated emphasis on the
treble damages provision in §15. For instance, the Court in
Carpa stated:
In the absence of further Congressional guidance,
and in light of the fact that the provision of treble
damages as well as attorneys’ fees in the antitrust laws
affords sufficient scope to the remedial purposes of
encouraging private enforcement of the antitrust laws
and facilitating the procuring of legal services, S/ we
see no basis for stretching the applicable statutory
language to provide interest on the award of attorneys’
fees to successful antitrust plaintiffs.
A-36
567 F. 2d at 1322-23 (emphasis added). The footnote ac-
companying this passage elaborated:
5. We note in this regard that the treble damage pro-
visions of the antitrust laws were designed in part to help
finance litigation expenses in private antitrust suits. By
creating the possibility of sizeable damage awards, Con-
gress encouraged attorneys to try antitrust cases on a
contingent fee basis.
Id. at 1323 n. 5. Later, the Court reemphasized:
The language and history of a given statute might suggest
that the public purposes underlying the statutory authori-
ty for attorneys’ fees would be materially advanced by
allowance of interest, and the absence of a treble damage
provision which complements the attorneys’ fee provision
would also require consideration,
Id, at 1323 (emphasis added),
The Carpa court’s instruction to consider carefully the char-
acteristics of the precise statute at issue would be completely
undercut by Judge Hill’s view that Carpa was based exclusively
on the definition of attorneys’ fees as part of costs. In our view,
Carpa permits - indeed, compels - a comprehensive analysis of
the statute at issue. With that in mind, § 1988 should be careful-
ly analyzed.
Section 1988 was enacted by Congress in 1976 in response
to the Supreme Court’s decision in Alyeska Pipeline Service
Co. v, Wilderness Society, 421 U. S. 240, 95 S, Ct. 1612, 44
L. Ed. 2d 141 (1975), which held that only Congress, not the
Courts, could determine which laws were important enough
A-37
7%
to justify the awarding of attorneys’ fees under the “private
attorney general” principle. The Act is farreaching. It applies
to suits for equitable relief or damages under the following
statutes: 42 U. S.C. A. §1981, forbidding discrimination by
Government officials and private persons in contractual rela-
tions and used frequently to challenge discrimination in em-
ployment and use of recreational facilities; 42 U. S.C. A.
§ 1982, forbidding discrimination in real estate transactions;
42 VU. S. C. A. §1983, prohibiting denial of constitutional
and civil rights by persons acting under color of state law;
42 U.S.C. A. §1985, dealing with conspiracies to deny persons
equal protection of the laws; 42 U. S.C. A. §1986, providing
a cause of action against certain individuals having power to
prevent violations of § 1985 out who do not do so; 42 U.S.C.
A. §2000d, et seq., prohibiting discrimination based on race,
color, or national origin in federally funded programs; and 20
U.S.C. A. §1681, et seq. prohibiting discrimination based on
sex, blindness, or visual impairment in the use of federal funds
in certain educational programs. The Act also authorizes attor-
neys’ fees for prevailing taxpayers in civil suits by or on behalf
of the United States under the Internal Revenue Code.
As the legislative history of §1988 makes clear, Congress
believed that the awarding of attorneys’ fee is critical to the
enforcement of the civil rights laws. The House Report, H. Rep.
No. 1558, 94th Cong., 2d Sess. (1976) (House Report), states:
“The effective enforcement of Federal civil rights statutes
depends largely on the efforts of private citizens. Although
some agencies of the United States have civil rights responsi-
bilities, their authority and resources are limited. In many
instances where these laws are violated, it is necessary for the
citizen to initiate court action to correct the illegality. Un-
less the judicial remedy is full and complete, it will remain a
meaningless right. Because a vast majority of the victims of
A-38
civil rights violations cannot afford legal counsel, they are un-
able to present their cases to the courts. In authorizing an
award of reasonable attorney’s fees, [the proposed legislation]
is designed to give such persons effective access to the judi-
cial process where their grievances can be resolved according to
law.”
Id. at 1. Similarly, the Senate Reprot, S. Rep. No 94-1011,
94th Cong., 2d Sess. (1976) (Senate Report), reprinted in
[1976] U. S. Code Cong. & Admin. News, p. 5908 (hereafter
reffered to as U. S.C. C. A.) states:
In many cases arising under our civil rights laws, the
citizen who must sue to enforce the law has little or no
money with which to hire a lawyer. If private citizens
are to be able to assert their civil rights, and if those
who violate the Nation’s fundamental laws are not to
proceed with impunity, then citizens must have the
opportunity to recover what it cost them to vindicate
these rights in court.
Id. 2t 2, USCCA at 5910. The Senate Report also quotes with
approval the following language from the Supreme Court’s
opinion in Newman v. Piggie Park, 390 U..S. 400, 402, 88
S. Ct. 964, 966, 19 L. Ed.2d 1263, 1265-66 (1968):
When a plaintiff brings an action under [Title IT]
he cannot recover damages. If he obtains an injunction,
he does so not for himself alone but also as a “‘private
attorney general, ” vindicating a policy that Congress
considered of the highest priority. If successful plain-
tiffs were routinely forced to bear their own attor-
neys’ fees, few aggrieved parties would be in a position
to advance the public interest by invoking the injunc-
tive powers of the Federal courts. Congress therefore
enacted the provision for counsel fees [42 U. S.C. A.
A-39
§ 2000a-3(b) to encourage individuals injured by racial
discrimination to seek judicial relief under Title II.
Senate Report at 3, USCCA at 5910.
Very similar ideas were expressed at the debates on the
legislation. As Congress-woman Holtzman stated:
Plaintiffs who suffer discrimination and other in-
fringements of their civil rights are usually not wealthy
people. The organizations who have helped them
bring their cases are frequently not well financed. The
Justice Department does not have the resources to
bring suit for every civil rights violation. Thus, many
people, deprived of their civil rights may not as a practi-
cal matter be able to do anything about it. It is not
right to deny people who cannot afford to pay attor-
neys’ fees the availability of justice through our courts.
122 Cong. Rec. H. 12164 (daily ed. Oct. 1, 1976). And Con-
gressman Seiberling, the original sponsor of legislation permit-
ting the awarding of attorneys’ fees in civil rights cases, stated:
If the law does not authorize the awarding of attor-
neys’ fees in meritorous civil rights cases, many po-
tential plaintiffs will be deterred from bringing deserv-
ing cases to remedy violations of the Constitution,
especially those cases in which the appropriate relief
is primarily equitable or injunctive rather than mone-
tary.
Id, at H. 12165.
Recognizing Congress’ clear signals to apply the Act “‘broad-
ly to achieve its remedial purpose.’’ Mid-Hudson Legal Services,
Inc.,v. G & U, Inc., 578 F. 2d 34, 37 (2d Cir. 1978), Courts
A-40
have taken an extremely liberal view on nearly every interpre-
tative question that has arisen thus far under § 1988. For
example, the Courts have held that when a party files a case
under a federal statute covered by §1988 and also files a
pendent state claim which is dispositive, the Act nonetheless
entitles the prevailing party to attorneys’ fees. See, e. g., Seals
v. Quarterly County Court, 562 F. 2d 390 (6th Cir. 1977);
Bond v. Stanton, 555 F. 2d 172 (7th Cir. 1977). Similarly,
although the Act provides that the Court “‘in its discretion,
may allow the prevailing party [attorneys’ fees]’’ (emphasis
added), Courts have held that unless the awarding of such fees
would, because of special circumstances, be unjust attorneys’
fees should be awarded to the prevailing party as a matter of
course. See, e. g., Iranian Students Association v. Edwards,
604 F.2d 352 (Sth Cir. 1979); Sethy v. Alameda County
Water District, 602 F. 2d 894 (9th Cir. 1979); Wharton uv.
Knefel, 562 F. 2d 550 (8th Cir. 1977); Brown v, Culpepper,
559 F. 2d 274 (Sth Cir. 1977). Furthermore, it has been consis-
tently held that the Act is to be retroactively applied. Gore v.
Turner, 563 F. 2d 159 (Sth Cir. 1977); Bond v, Stanton, supra.
And Courts have held that a party need not win on every
issue to be a “prevailing party”’ under the Act. See, e. g., Bonnes
v. Long, 599 F. 2d 1316 (4th Cir. 1979); Brown v. Culpepper,
supra. See generally Lipson, Beyond Alyeska-—Judicial Response
to the Civil Rights Attorneys’ Fees Act, 22 St. Louis U. L. J.
243 (1978).
[5] While admittedly the Courts in the cases just cited
had somewhat more guidance from the legislative history than
we have here, we believe that a liberal reading of the Act is
also appropriate with respect to the awarding of interest on
attorneys’ fees. We do not mean to suggest that Congress ex-
plicitly intended that interest on attorneys’ fees be awarded.
Congress probably never specifically considered the ques-
A4]1
tion. 19/ On the other hand, we do not believe that Congress
intended to bar recovery of interest on attorneys’ fees. And the
awarding of interest is entirely consistent with the purpose
of the Act: to ensure effective enforcement of the civil rights
laws.
In analyzing the nature of the interest award, it must be
understood that the awarding of interest is in no sense a wind-
10/ However, contrary to the view of Judge Hill, see (dissent), p.
1281, it is at least arguable that by its cite to Davis v. City of Los Angeles,
8 EPD 99444, p. 5047 (C.D. Cal. 1974). Congress intended that interest
on attorneys’ fees be awarded. In Davis, the Court awarded attorneys’
fees to be made within thirty days and added that “interest shall not
begin to accrue if Defendant County of Los Angeles makes the said
payment within thirty days after entry of this judgment. . . .” 8 EPD {
9444, at 5049. Davis is cited in the Senate Report along with several
other cases as one in which “‘the appropriate standards. . . are correct-
ly applied.” Senate Report at 6, USCCA at 5913. And the Senate Report
states that cases such as Davis “have resulted in fees which are adequate
to attract competent counsel, but which do not produce windfalls to
attorneys. "Id.
11/ In trying to make sense out of a statute, it is “appropriate to
look beyond the words to the purpose of the act.’”’ Perry v. Commerce
Loan Co., 383 U. 8, 392, 400, 86 S. Ct. 852, 857, 15 L. Ed. 827, 833
(1966). See also United States v. American Trucking Associations, 310
U. S. 534, 543, 60 S. Ct. 1059, 1063, 84 L. Ed, 1345, 1350 (1940).
Moreover, when “flesh[{ing] out the portions of the law with respect to
which . . . congressional enactment [does not] offer conclusive guid-
ance.” it is “proper [to consider] what may be described as policy con-
siderations.” Blue Chip Stamps v. Manor Drug Stores, 421 U. 8. 723,
737, 95 8. Ct. 1917, 1926, 44 L. Ed. 2d 539, 550 (1975). These cases
recognize that Courts are occasionally required to fill in the interstices
of a statutory scheme. As a body composed of mere mortals, Congress
cannot be expected to address every issue which may possibly arise in a
particular case. The Court in Carpa had precisely these sound considera-
tions of statutory construction in mind when it declared that “the lan-
guage and history of a given statute and the public purposes underlying
the statutory authority for attorneys’ fees” must be considered. 567 F.
2d at 1323;
A-42
fall. Because a dollar today is worth more than a dollar in the
future, “‘the only way [a party] can be made whole is to award
him interest from the time he should have received the money.”
Louisiana & Arkansas Railway Co, v. Export Drum Co., 359 F.
2d 311, 317 (Sth Cir. 1966). Indeed, this case dramatizes the
need for interest on attorneys’ fees if the attorneys for the
prevailing party are to be adequately compensated. Most of
the fees at issue in this case were awarded in 1973. Because
of inflation, these awards are worth far less today than they
were seven years ago. Had the awards been made in 1973,
the attorneys could have been drawing interest on that amount
for the last seven years. J
The appropriateness of awarding interest on attorneys’
fees in the civil rights context becomes even clearer when
§1988 is examined in light of the precise considerations ex-
pressed in Carpa. As stated above, Carpa relied on the exis-
tence of treble damages and on the definition of attorneys’
fees as part of costs. Section 1988 is distinguishable on both
bases.
First, there are no treble damage provisions under any of
the civil rights statutes covered by §1988. Indeed, as the
legislative history discussed above emphasizes, many of
the litigants in civil rights cases have little or no money
with which to hire a lawyer. Frequently the litigant is un-
able to obtain any damages under the applicable statute
12/ The case before us is in no way atypical. The law books are filled
with civil rights cases extending over decades, For a classic example,
See Singleton v. Jackson Municipal Separate School Dist., 348 F. 2d
729 (5th Cir. 1965) (Singleton I); 355 F. 2d 865 (5th Cir. 1966) (Single-
ton II); 419 F. 2d 1211 (5th Cir. ) (en banc) (Singleton II) rev'd, 396
U. 8. 290, 90 S. Ct. 608. 24 L. Ed. 2d 477, cert.denied, 396 U. S. 1032,
90 S. Ct. 612, 24 L. Ed. 2d 530 (1970); 426 F. 2d 1864 (5th Cir. 1970)
(Singleton IV); 430 F. 2d 368 (5th Cir. 1970) (Singleton V); 432 F. 2d
927 (5th Cir. 1970) (Singleton VI); 509 F. 2d 818 (5th Cir. 1975) (Single-
ton VII).
A-43
- |
but can seek only injunctive or declaratory relief. In Senate
debate on the legislation, Senator Kennedy drew a sharp distinc-
tion between the civil rights and anti-trust contexts:
“The lawyer who undertakes to represent a client alleging
a violation of the civil rights statutes covered by this bill faces
significant uncertainty of payment, even where he has a strong
case. For there is often important principles to be gained in
such litigation, and rights to be conferred or enforced, but just
as often no large promise of monetary recovery lies at the end
of the tunnel. So civil rights cases - unlike tort or antitrust
cases - do not provide the prevailing plaintiff with a large
recovery from which he can pay his law) er. That is why Con-
gress has already decided in many recent civil rights laws to in-
clude provisions for recovery of attorneys’ fees, in order to in-
sure that the rights guaranteed by the laws are not lost through
the inability of those who are supposed to benefit to obtain
judicial enforcement of those rights.”
122 Cong. Rec. S 17052 (daily ed. Sept. 29, 1976) (emphasis
added). We can think of no type of litigation where “the ab-
sence of a treble damage provision which complements the
attorneys’ fee provision.” Carpa, supra, 567 F. 2d at 1323,
is more significant than in the civil rights context.
Second, while it is true that §1988 also defines attorneys’
fees as part of costs, see note 9, supra, the legislative history
makes clear that this was done for one reason and one reason
only: to ensure that the Eleventh Amendment is no bar so that
these fees are recoverable against Government officials acting
in their official capacity. As this Court stated in Morrow uv.
Dillard, 580 F. 2d 1284, 1299 n. 18 (Sth Cir. 1978):
“The Senate Report contemplated that by defining fees as
costs there would be no problem in awarding fees against
State officers acting in their official capacities. . . .”
A-44
See Senate Report at 5, USCCA at 5913; House Report at 7.
In the anti-trust context, by contrast, the Court in Carpa could
point to nothing to explain Congress’s inclusion of attorneys’
fees as part of costs. Certainly Congress was not trying to make
clear th t attorneys’ fees could be assessed against state and
local Governments, since Congress intended that the anti-
trust laws be inapplicable to suits against Government
entities..
Thus, in analyzing §1988 and its inclusion of a .torneys’
fees as part of costs, Congress’ concern about the possible
immunity of Government officials must be kept clearly in
mind. This fact rebuts the assumption of Judge Hill that Con-
gress intended to define attorneys’ fees as part of costs for all
purposes.
To read Carpa as Judge Hill does would be to place Congress
in a no win situation. If Congress specifies attorneys’ fees as
part of costs, then interest cannot be awarded, and in cases
such as this, attorneys’ fee awards will be inadequate. On the
other hand, if Congress does not specify attorneys’ fee awards
as part of costs, it runs the risk that such fees will not be asses-
sed against Government officials acting in their official capacity.
In addition, Judge Hill’s view - that Carpa requires rejection
of interest on attorneys’ fees whenever they are defined as part
of costs - would foreclose the possibility of recovering interest
on attorneys’ fees under a variety of other statutes. As of
1977, there were at least 75 statutes enacted by Congress
See, e. g., Parker v. Brown, 317 U. 8. 341, 63 S. Ct. 307, 87
L. Ed. 315 (1943). While the “state action” doctrine has been undercut
recently, see e, g., Lafayette v. Louisiona Power & Light Co., 435 U.
8. 389, 402, 98 S. Ct, 1123, 1131, 55 L. Ed, 2d 364, 376 (1978), these
recent inroads do not undercut Parker in any manner relevant to this
issue.
A-45
authorizing attorneys’ fees. See Berger, Court Awarded Attor-
neys’ Fees: What is “Reasonable”? 126 U. Pa. L. Rev. 281,
303-04 n. 104 (listing statutes), 14/
14/ For convenience, we reproduce the author’s exhaustive collection
of the statutes:
Federal Contested Elections Act § 17, 2 U. S. C. § 396
(1970); Act of Nov, 21, 1974 (Freedom of Information Act
amendments) § 1(b) (2), 5 U. S. C. §552(a) (4) (E) (Supp.
V 1975); Privacy Act of 1974 § 3, 5 U. S. C. § 552a (g) (2)
(B) (Supp. V 1975); Government in the Sunshine Act § 3, 5
U, 8. C. A. § 552b(i) (Supp. 1977); Workmen’s Compensation
Acts § 208, 5 U. S.C. § 8127(b) (1970); Commodity Futures
Trading Commission Act of 1974 § 106, 7 U.S, C. §§ 18(f),
(g) (Supp. V 1975); Packers and Stockyards Act, 1921 § 309,
7 U. 8. C. §210(f) (1970). Perishable Agricultural Commodities
Act, 1980 § 7, 7 U. 8. C. §§ 499g(b) , (c) (1970 & Supp. IV
1973); Agricultural Fair Practices Act of 1967, § 6,7 U. S.C,
§§ 2305(a), (c) (1970); Plant Variety Protection Act § 125,
7 U. 8. C. § 2565 (1970); Bankruptcy Act § 1, 11 U. 8. C.
§§ 205, 641, 643, 644 (1970); Home Owners Loan Act of 1933,
12 U. 8. C. § 1464(d)(8) (1970), as amended by Financial
Institutions Supervisory Act of 1966, Pub. L. No. 89-695, §
102(a), 80 Stat. 1036 (1966); National Housing Act, 12 U. S.
C. § 1730(m), as amended by Financial Institutions Supervisory
Act of 1966, Pub. L. No, 89-695, § 102(a), 80 Stat. 1036
(1966); Federal Credit Union Act, 12 U. 8S, C. §1786(0) (1970),
as amended by Act of Oct. 19, 1970, Pub. L. No. 91-468, §
1(3), 84 Stat. 1010 (1970); Federal Deposit Insurance Act,
12 U. S. C. § 1818(n) (1970), as amended byFinancial Institu-
tions Supervisory Act of 1966, Pub, L. No. 89-695 § 202, 80
Stat. 1036 (1966); Bank Holding Company Act Amendments
of 1970 § 106(e), 12 U. 8. C. § 2607(d) (Supp. V 1975); Clay-
ton Act § 4, 15 U. 8. C, § 15 (1970); Clayton Act § 4C, 15
U. 8. C. A. § 15¢ (Supp. 1977), as amended by Hart-Scott-
Rodino Antitrust Improvements Act of 1976, Pub. L. No, 94-
435, § 301, 90 Stat. 1894; Clayton Act § 16, 15 U.S.C. A.
§ 26 (1976), as amended by Hart-Scott-Rodino Antitrust Im-
provements Act of 1976, Pub. L. No. 94-435, § 802(3), 90
A-46
A large number of these statutes define attorneys’ fees as part
of costs. See, e. g., Federal Contested Elections Act, § 17,
2U.5S.C. A. § 396; Freedom of Information Act Amendments,
14/ Continued
Stat. 1896; Federal Trade Commission Act, 1975 Amendments
§ 202(a), 15 U. S. C. § 57a(h) (Supp. v 1975); Unfair Com-
petition Act § 801, 15 U. S, C. § 72 (1970); Securities Act
of 1933 § 11, 15 U. S. C. § 77k(e) (1970); Trust Indenture Act
of 1939 § 323, 15 U. S. C. § 77 www(a) (1970); Securities
Exchange Act of 1934 §§ 9, 18, 15 U. 8. C. §§ 78i(e), 78r(a)
(1970); Jewelers’ Liability Act (Gold and Silver Articles) §
1(b), 15 U. S. C, § 298(b). (c). (d) (1970); National Traffic and
Motor Vehicle Safety Act of 1966 § 111, 15 U.S.C, § 1400
(1970); Truth in Lending Act § 408(a), 15 U.S.C. § 1640(a)
(Supp. V 1975); Consumer Leasing Act of 1976 § 3, 15 U. S.
C. A. § 1667b (Supp. 1977); Fair Credit Reporting Act § 601,
15 U.S.C, §§1681n. 16810 (1970); Equal Credit Opportunity Act
§ 503, 15 U. S. C. § 1691(e) (Supp. V 1975), redesignated as
§ 1691e(d) and amended by Equal Credit Opportunity Act
Amendments of 1976, Pub. L. No, 94-289, § 6, 90 Stat. 253
(1976); Motor Vehicle Information and Cost Savings Act §§
109, 409, 15 U. S. C. §§ 1918, 1989(a)(2) (Supp. V 1975);
Consumer Products Safety Commission Improvements Act of
1976 §§ 10(a) (b), 15 U. 8. C. A. §§ 2959(e), 2060(c) (Supp.
1977); Consumer Product Safety Act 3§ 23, 24, 15 U. S. C.
§§ 2072, 2073 (Supp. V 1975), as amended by Consumer
Product Safety Commission Improvements Act of 1976, Pub.
L. No, 94-284, §§ 10(c), (d) 90 Stat, 503 (1976); Hobby Pro-
tection Act § 3, 15 U. 8. C. § 2102 (Supp. V 1975); Magnuson-
Moss Warranty-Federal Trade Improvement Act § 110(a)(5),
15 U. S.C. § 2810(d) (Supp. V 1975); Copyrights Act § 1, 17
U. 8. C, § 116 (1970), redesignated as § 505 and amended
by Pub, L, No, 94-5653, § 101, 90 Stat, 2541 (1976); Organized
Crime Control Act of 1970 §901(a), 18 U. S. C. §1964(c)
(1970); Omnibus Crime Control and Safe Streets Act of 1968
§ 802, 18 U. 8. C, § 2520 (1970); Emergency School Aid Act
§ 718, 20 U. S.C. § 1617 (Supp. V 1975); American-Mexican
Chamizal Convention Act of 1964 § 5, 22 U.S. C. § 2774-21
(1970); International Claims Settlement Act of 1949 § 4, 64
A-47
§ 1(b)(2), 5 U. S.C. A. § 552 (a)(4)(E); Privacy Act of 1974,
§3, 5 U.S.C.A. §552 a (g) (2) (B); Government in the Sunshine
Act, § 3(a), 5 U. S.C. A. § 552b(i); Magnuson-Moss Warranty-
14/ Continued
Stat. 13 (1950) (current version at 22 U.S.C. § 1623(f) (1970);
Act of June 25, 1948 (Federal Tort Claims), ch. 646, 62 Stat.
984 (1948) (current version at 28 U. S. C. § 2678 (1970);
Norris-LaGuardia Act § 7, 29 U.S.C. 107(e) (1970); Fair Labor
Standards Amendments of 1974, § 6(d)(1), 29 U.S. C. § 216(b)
(Supp. V1975); Employee Retirement Income Security Act of
1974 § 502, 29 U. S.C. § 1132(g) (Supp. V 1975); State and
Local Fiscal Assistance Amendments of 1976 § 7(b), 31 U. S.
C. A. § 1244(e) (Supp. 1977); Longshoremen’s and Harbor
Workers’ Compensation Act Amendments of 1972 §§ 13, 15,
33 U. S. C. §§ 928, 933 (Supp. V 1975); Federal Water Pollu-
tion Control Act Amendments of 1972 §§ 505, 507, 33 U. S.
C. §§ 1365(d), 1367(c) (Supp. V 1975); Marine Protection,
Research, and Sanctuaries Act of 1972 § 105, 33 U. S.C. §
1415(g)(4) (Supp. V 1975); Deepwater Port Act of 1974 §
16(d), 33 U. S. C. § 1515(d) (Supp. V 1975); Patent Infringe-
ment Act § 1, 35 U. S, C. § 285 (1970); Safe Drinking Water
Act § 1449(d), 42 U. S. C. § 300j-8 (Supp. V 1975); Social
Security Act § 206, 42 U. S. C. § 406 (1970); Clean Air Act
§ 12a, 42 U. S. C. § 185h-2(d) (1970); Voting Rights Act
Amendments of 1975 § 402, 42 U. S. C. § 19731 (e) (Supp.
V 1975); Civil Rights Attorney’s Fees Awards Act of 1974
§2, 42 U. 8. C. A. § 1988 (1976); Civil Rights Act of 1964
§§ 204, 706, 42 U. S. C. §§ 2000a-3(b), 2000e 5(k) (1970);
Atomic Energy Act of 1954 § 1, 42 U. S. C. § 2184 (1970);
Fair Housing Act of 1968 § 812, 42 U. S. C. § 3612(c) (1970);
Crime Control Act of 1976 § 122(b), 42 U. 8. C. A. § 3766(c)
(4)(B) (1976); Noise Control Act of 1972 § 12,42 U.S.C. §
4911(d) (Supp. V 1975); National Mobile Home Construction
and Safety Standards Act of 1974 § 613, 42 U.S.C. § 5412(b)
(Supp. V 1975); Railway Labor Act § 3, 45 U.S.C. § —)
(1970), Shipping Act, 1916 § 30, 46 U. S. C. § 829 (1970);
Communications Act of 1934 §§ 206, 407, 47 U. S. C. ¥
206, 407 (1970); Act of Mar, 3, 1887 (aliens holding land)
6, 48 U. 8S. C. § 1506 (1970); Interstate Commerce Act §
8, 15, 16, 222, 308, 417, 49 U. 8. C. §§ 15(9), 16 (2), 322(b),
A-48
Federal Trade Improvement Act, § 110(d), 15 U.S.C. A. §
2310(d); Civil Rights Act of 1964 §§ 204, 706,42 U.S.C.A.
§§ 2000a-3(b), 2000e-5(k). We cannot believe that the Court
in Carpa, with its emphatic language that each must be carefully
considered, intended to decide the question of interest on at-
torneys’ fees with respect to these and many other statutes.
[6] In sum, we believe that § 1988 should be liberally
construed to permit the awarding of interest on attorneys’
fees
Such a liberal approach finds general support both in the legis-
lative history of §1988 and in the various cases interpreting it.
14/ Continued
908(b), 1017(b) (1970) Natural Gas Pipeline Safety Act Amend-
ments of 1976 §8, 49 U.S.C.A.§1686(e) (1976); Housing and
Rent Act of 1947 § 206, 61 Stat. 199 (1947) (repealed 1948);
Defense Production Act of 1950, § 409, 64 Stat 811 (1950)
(repealed 1951).
15f Indeed, Judge Hill seems to suggest that attorneys’ fees, no matter
how they are defined, belong to that enigmatic category of costs. See
(dissent), p. 1282, That means that given Judge Hill’s reading of Carpa,
interest cannot be recovered on attorneys’ fees under any of the statutes
listed in note 14, supra. Such reasoning stands stare decisis on its head
and permits Carpa - an extremely narrow opinion - to do exactly what
the Court did not want to do: resolve the issue of interest on attorneys’
fees under the myriad other attorneys’ fee provisions enacted by Congress.
16/ We are not troubled by this Court’s Order in Rainey v. Jackson
State College, 591 F. 2d 1000 (5th Cir. 1979). The cryptic Order “denied,
could be based on at least three separate grounds, only one of which
involves the present issue presented here. For example, the parties in
Rainey seeking interest on attorneys’ fees did so very late in the game,
after the opinion for the Court approving the awarding of attorneys’
fees had been written. The Court may well have denied the motion for
interest simply because it came too late.
A-49
Nor do we believe that Carpa compels a contrary result. Be-
cause the Carpa decision was a very narrow one, and because
the decision today is likewise a very narrow one, we disagree
with Judge Hill’s suggestion (dissent), p. 1283 that to award
interest on attorneys’ fees under § 1988, en banc reconsidera-
tion of Carpa is essential. With twenty-five Judges on this Court,
it hardly serves good sound administration of justice to call an
en banc session to reconsider a narrow decision arising under
the antitrust laws that is readily distinguishable from the
facts presented here.
[7] Accordingly, we affirm that part of the District
Court’s opinion holding that Appellees are entitled to interest
on the initial award of $41,750 for attorneys’ fees and on the
supplemental award of $2,562.50 for time spent on appeal.
We also hold, however, that the District Court erred in award-
ing interest on the out-of-pocket costs of $10,986.05. See
Supra at 1270 n. 2,17/
17/ While Appellees seek affirmance of the District Court decision in
all respects, they virtually concede that the awarding of interest on out-
of-pocket costs was not proper. Their analysis rests on the argument that
attorneys’ fees should not be treated the same as other costs. E. g.,
Appellees’, Brief, at 29 (“‘Congress’ determination . . . to award attor-
ney’s fees as part of costs’ (42 U. S. C. § 1988) does not indicate any
intent to bring these attorneys’ fees awards under the general rule against
allowing interest on taxable costs of court ’’). Although there is little case
law on the question, the view that out-of-pocket costs (as opposed to
attornyes’ fees) do not bear interest appears firmly established in our
jurisprudence and Courts either explicitly or implicitly have accepted this
principle. E. g., Jesko v. American-First Title & Trust Co., 603 F, 2d
815, 820 n. 11 (10th Cir. 1979); Carpa, supra, 567 F. 2d at 1322; Duffer
v. American Home Assurance Co., 512 F.2d 793, 800 (5th Cir. 1975);
20 C, J. 8.Costs § 190, p. 422 (and cases cited therein).
Judge Hill will not concede that the cases cited above support the
position that out-of-pocket costs do not bear interest, (dissent), pp.
1282 1283 even though he reads Duffer and Carpa as holding that costs
A-50
CONCLUSION
This case has flip-flopped from the District Court to this
Court to the District Court and to this Court again for almost
a decade. In 1972, the District Court held that the operation
of Parchman Penitentiary infringed upon the constitutional
17/ Continued
do not bear interest, p. 1282, and even though Appellees clearly concede
in their brief that this principle of law is well established.
As Appellees point out, there are several distinctions between attor-
neys’ fees and out-of-pocket costs. Whereas out-of-pocket costs are
routinely awarded upon submission of a bill of costs, a much more elabo-
rate documentation process is required with respect to attorneys’ fees.
And whereas Court costs mzy only be taxed after entry of final judgment,
attorneys’ fees may be as-essed even if an action is settled and no final
judgment is entered. IrJeed, it is interesting that even though § 1988
defines attorneys’ fe-s as part of costs, Courts have, for purposes of
analysis, consistently eparated attorneys’ fees and other costs. See, e. g.,
Morrow v. Dillard, supa, 580 F. 2d at 1296 (Part IV of opinion contains
heading “‘Attorney’s F »es and Costs’); McPherson v. School District No.
186, 465 F. Supp. 749, 763 (S. D. Ill. 1978) (Immediately under the
heading “Costs,” the opinion begins “In addition to attorneys’ fees, the
plaintiffs’ attorneys are seeking to have their out-of-pocket expenses
assessed against the defendants as costs.””) Alsager v. District Court of
Polk County, Iowa, 447 F. Supp. 572, 580 (S. D. lowa 1977) (holding
that “counsel will also be permitted, in addition to attommeys fees, $2,000.
00 in costs.”); Dawson v. Pastrick, 441 F. Supp. 133, 143 (N. D. Ind.
1977) (Court’s heading reads “Costs and Attorneys’ Fees” and Court
states that plaintiffs have asked for ‘“‘costs and reasonable attorney fees’’).
As we have already stated, by defining attorneys’ fees as part of costs.
Congress was merely concerned with problems of immunity and did not
intend for attorneys’ fees to be treated as part of costs for all purposes.
Moreover, the legislative history of § 1988 emphasizes the need in civil
rights cases for adequate attorneys’ fee awards, On the other hand, there is
nothing in the legislative history of § 1988 which even remotely suggests
that the treatment of out-of-pocket costs should in any way change as
a result of the enactment of § 1988, While we sympathize with Appellees’
A-51
be 4
rights of its inmates. 349 F. Supp. 881 (N.D. Miss. 1972).
We affirmed the District Court. 501 F. 2d 1291 (Sth Cir. 1974).
In 1973, the District Court awarded attorneys’ fees and costs,
and we affirmed. 489 F. 2d 298 (Sth Cir. 1973). Two Supreme
Court cases, Edelman v. Jordan, 415 U. S. 651, 94S. Ct. 1347,
39 L. Ed. 2d 662 (1974), and Alyeska Pipeline Service Co.
v. Wilderness Society, supra, led this Court (sitting en banc)
to vacate and remand for reconsideration of attorneys’ fees
in light of these cases. 522 F. 2d 81 (5th Cir. 1975). The
District Court reassessed attorneys’ fees, 70 F. R. D. 341
(N. D. Miss. 1976), and this Court affirmed the judgments
(but reversed the denial of attorneys’ fees for appellate pro-
ceedings and remanded on that question). 559 F. 2d 244
(Sth Cir. 1977). In the 1977 Fifth Circuit case, we remarked:
“This is, we hope, the last appearance of this lengthy litigation
challenging prison conditions in the Mississippi State Penitentia-
ry.”’ 559 F. 2d at 241.
But the last appearance it was not. The defendants tried one
last desperate effort: they refused to pay over the attorneys’
fees, raising Eleventh Amendment ..guments that, as Part I
points out, are-so clearly meritless as to be frivolous. Yet,
recognizing that they were bound to lose on those arguments,
the defendants also challenged the awarding of interest on
attorneys’ fees and out of pocket costs. By Part II, the Court
now rejects the argument that interest on attorneys’ fees was
17/ Continued
claim for interest on costs, we believe that Congress must provide at
least some indication of its intent to abrogate the traditional rule sgainst
awarding interest on out-of-pocket costs, or at least express a strony and
clear intent that costs, like attorneys’ fees, must be liberally awarded to
ensure effective enforcement of the civil rights laws.
Ae52
|
was not proper. -18/
And we once again express our hope that with this opin-
ion, 19/ the long history of this litigation involving conditions
at the Mississippi State Penitentiary has come to an end.
AFFIRMED IN PART; REVERSED IN PART.
JAMES C. HILL, Circuit Judge, dissenting in part:
There is no doubt that the equitable considerations weigh
overwhelmingly in favor of the plaintiffs and their attorneys.
The obstinance of the defendants has resulted in the two
awards, one 7 years old, remaining unpaid to date. The bulk of
the fees awarded reflect rates for attorneys’ services prevailing
in 1973. Inflation has diminished drastically the value of the
awards, If the judgment had been paid promptly, the attorneys
would have had the use of the money since 1973 and presum-
ably could have earned a significant amount of interest on the
money since that time. The same holds true for the substantial
out-of-pocket costs which have been incurred since the start of
this litigation more than 9 years ago. Defendants, on the other
hand, get a windfall. They have been unrestricted in their use
of the money. Even assuming earnings of only 5% per annum,
they could have by now recovered a substantial portion of the
amount they ultimately will have to pay. Their obstinance has
indeed been profitable.
18/ Obviously attorneys’ fees (to be fixed by the District Court on
remand) are allowable for successfully resisting this appeal on all but
the issue of interest on costs.
19/ Judge Hill, of course, continued in his view that en banc court
action is required.
Ac53
7%
I wholeheartedly join with the majority in the feeling that
the law ought to permit these plaintiffs to recover interest on
the attorneys’ fees awarded so long ago and since stubbornly
withheld from them by these defendants. Nevertheless, I must
dissent from the holding that attorneys’ fees, although a part of
costs, bear interest. The decision of a panel of this Court in
Carpa Inc. v. Ward Foods, Inc., 567 F. 2d 1316 (Sth Cir. 1978)
is, in my view, dispositive of the issue. As such, the majority’s
holding flies in the face of the doctrine of stare decisis repre-
sented here by the rule that one panel of this Court must abide
the decision of a prior panel. This abrupt departure comes
at a most inappropriate time in our history.
Although I am of the opinion that Carpa prevents the award-
ing of interest on out-of-pocket expenses, I must dissent from
the majority’s holding disallowing interest on those costs.
The majority’s partial recognition of Carpa to deny interest on
money actually paid out long ago cannot be made to dove
tail with its having kicked off the Carpa traces as to attorneys’
fees.
I. Attorneys’ Fees
Although several courts have either expressly or impliedly
approved the general proposition that interest on fee awards is
permissible, see City of Detroit v. Grinnell Corp., 575 F. 2d
1009, 1010 (2d Cir. 1978); Perkins v. Standard Oil, 487 F. 2d
672 (9th Cir. 1973); Holly v, Chasen No. 75-2116 (D. D. C.
Feb. 2, 1979); McPherson v. School District No. 186, 465 F.
Supp. 749, 765 (D. Ill. 1978); Cleverly v. Western Electric Co.
450 F. Supp. 507, 512 (W. D. Mo. 1978), aff'd, 594 F. 2d
638 (8th Cir. 1979), a panel of this Court recently came to the
contrary conclusion. Carpa was a treble-damage action brought
under the antitrust laws. The plaintiffs were awarded attor-
neys’ fees plus 6% interest. The court framed the issue before
it as follows: “whether the district court may award interest on
attorneys’ fees when the fees are treated as costs.” 567 F. 2d
at 1321. In reversing the award of interest, the panel relied
A-54
heavily on the fact that the statutory provision authorizing fee
awards, 15 U. S. C. A. § 15, categorizes fees as part of costs,
Id. at 1322. No authority for awarding interest on costs was
found, 2! there was nothing in the language of the statute to
indicate that interest on costs was recoverable, and the legisla-
tive history of the statute was silent on the question. Id,
The statute under consideration in this case, the Civil Rights
Attorneys’ fees Awards Act, also treats attorneys’ fees as
part of costs: “(T]he court, in its discretion, may allow the
prevailing party . . . areasonable attorney’s fee as part of the
costs.” 42 U. S. C. A. § 1988. As in Carpa, the legislative
history of the Act is silent on the question of interest, and there
is nothing in the language of the statute to indicate that Con-
gress intended that attorneys’ fees bear interest.
The majority criticizes this reading and application of Carpa
as “[relying] exclusively on the definition of attorneys’ fees
as part of costs.”” At 1273, supra, In the majority’s view, Carpa
only disposed of the interest issue in the context of the anti-
trust fee award provision. Having so freed itself of the obli-
1/ 15 U.S.C. A. § 15 provides for the recovery of “the cost of suit,
including a reasonable attorney’s fee.”
2/ ‘The one case which had been decided prior to Carpa, Perkins v.
Standard Oil, 487 F. 2d 672 (9th Cir. 1973), was rejected by the Panel
because it was “based on an erroneous view of the law.” Carpa, Inc. v.
Ward Foods, Inc,, 567 F. 2d 1316, 1822 (5th Cir, 1978).
3/ One district court case in which interest was allowed on an award
of fees is cited in the Senate Report accompanying the Act. S. Rep.
No, 94-1011, 94th Cong., 2d Sess. 6 (1976). That case, however, was
cited only as an example of the proper way of calculating the amount
of the award. Id. (citing Davis v. County of Los Angeles, 8 E. P. D. 9944
(C. D. Cal. 1974)).
A-55
gation to apply Carpa to this case, the majority porceeds to
analyze the Act’s fee provision to determine whether the rele-
vant policy considerations militate in favor of allowing interest
to be awarded. In this vein, three significant characteristics
of civil rights cases are noted. First, civil rights claimants often
do not have the money to hire an attorney. Second, unlike the
antitrust laws, the civil rights statutes do not provide for treble
damage awards from which a plaintiff might draw on to help
compensate his attorney. Third, since the relief in civil rights
cases frequently is injunctive only, normally there is no fund
from which to supplement court-awarded fees. With these
observations I have no argument. It is clear that these factors
led Congress to the conclusion that a fee award provision was
necessary to ensure that private citizens be able to obtain
counsel to assist them in seeking redress for violations of their
civil rights. Unfortunately, the question before this panel is
not whether attorneys’ fees should be awarded; rather, the
question is whether the fees that were awarded should bear
interest. I have little doubt that Congress would have authoriz-
ed interest had they thought of it. But, as the majority con-
cedes, Congress never considered the issue. Since Congress did
not manifest an intent one way or the other, the issue is one for
the judiciary to decide.
As in any other case where we are not compelled to a result
by the action or inaction of Congress, our first duty is to deter-
mine whether we are writing on a clean slate. My disagreement
with the majority stems from my belief that we are not writing
on a clean slate. While I agree that the result reached by the
majority is a desirable one, I do not feel that we are free to
reach it.
I begin with the proposition that attorneys’ fees although
different than other costs, are nevertheless a part of the costs of
a lawsuit. A reading of the majority opinions in Hutto v, Fin-
ney, 437 U. S. 678, 695-98, 98 S. Ct. 2565, 2576-77, 57 L.
Ed. 2d 522 (1978) and Alyeska Pipeline Co. v. Wilderness
Society, 421 U. S. 240, 247-57, 95 S. Ct. 1612, 1616-21, 44
A-56
L. Ed. 2d 141 (1975), leaves one with the unmistakable impres-
sion that attorneys’ fees are, and have long been considered,
a part of litigation costs. Thus, the majority’s belief that Con-
gress categorized fees as part of costs to ensure that the states
would not be insulated by the Eleventh Amendment is irrele-
vant. Whether Congress was or was not correct in the belief that
the terminology used would be dispositive of the Eleventh
Amendment question does alter the fact that attorneys’ fees
are part of costs.
The next question-whether costs bear interest-was, as I have
already stated, the question before the Carpa panel. The basis
of that panel’s holding is clear from its citation of Duffer v.
American Home Assurance Co., 512 F. 2d 793 (5th Cir. 1973).
Duffer was a diversity case in which the plaintiff was awarded
attorneys’ fees under the authority of a Texas insurance statute.
The statute stated that “‘attorney’s fee shall be taxed as a part
of the costs in the case.’’ Jd, at 800, The district court included
the fee award in the damage judgment and assessed interest
on the whole amount. This Court held that the fees should
have been taxed separately and no interest awarded thereon.
It is clear that the decision was based on the fact that attorneys’
fees are part of costs and, as such, do not bear interest. At least
that is the way the Carpa panel read Duffer:
[I]t is somewhat instructive to note that faced with a
statutory language similar to 15 U.S.C. §15, and without
any controlling precedent to bind it, the court held that
attorneys’ fees are an item of costs and as such do not
bear interest.
567 F. 2d at 1322 (emphasis added),
In my view, the four opinions discussed above preclude this
three-judge panel from deciding the desirability of allowing
interest on attorneys’ fees awarded under the Act.
A-57
Il. Out-of-Pocket Costs
The question whether interest should be awarded on out-
of-pocket costs is disposed of by the majority all too easily.
The footnote accompanying the one-sentence textural discus-
sion of out-of-pocket expenses explains that “firmly established
in our jurispurdence” is the principle that such costs do not
bear interest. At 1279, supra. The three cases cited by the
majority-Carpa, Duffer, and Jesko v. American-First Title &
Trust Co., 603 F. 2d 815, 820 n. 11 (10th Cir. 1979)-simply
do not support that statement. There is nothing in any of those
opinions to the effect that some costs are interest bearing while
others are not.
Judge Brown’s eloquent presentation of the Act’s legislative
history demonstrates that Congress perceived a great need to
authorize awards of attorneys’ fees. Contrary to the apparent
assumption of the majority, I do not believe that anything in
the legislative history discloses that Congress was only luke
warm in its decision that a prevailing plaintiff also should be
awarded his out-of-pocket costs. There is nothing to suggest
that Congress considered attorneys’ fees more important or
less important than other litigation expenses.
In my view, there is more reason to allow interest on out-
of-pocket expenses than on attorneys’ fees. The label “‘out-of-
pocket”’ is most revealing. Such costs include filing fees, court
reporter fees and the like. Unlike attorneys’ fees, these are bills
that had to be paid years ago to keep the lawsuit alive. Were
I not of the opinion that Carpa prevents us from allowing in-
terest on any part of costs, I would not hesitate to hold that
these plaintiffs should have interest on their out-of-pocket
costs.
III. Stare Decisis
The respective positions of the three judges on this panel can
A-58
be stated as follows:
The Majority
“I cannot bear to be told when an argument has been addressed
to me by which I am not convinced, that there is a case decided
which I am bound to follow.” In re Holmes, 60 C. D. 269
(1890).
The Dissent
“My duty is, as a Judge, to be governed by fixed rules and form-
er precedents.” Brownlow v, Egerton, 23 L. J. Rep. part 5, ch.
364 (1854).
The Panel
“I have often thought since that there is sound sense in what
was once said by the late Lord C. J. Eyre, that the sooner a bad
precedent was gotten rid of, the better.” King v. Stone, |
East 648 n. (a) (1801).
Were I writing on a clean slate, I would be hard pressed to
hold that costs do not bear interest. Outside this Circuit, there
is no authority supporting such a holding. As noted above,
most federal courts have found no barrier to awarding interest
on costs. Nonetheless, in our Circuit one panel cannot over-
rule a prior panel decision, and the question before this panel
is controlled by Carpa. See United States v. Lewis, 475 F.
2d 571, 574 (Sth Cir, 1973),4/
4# Defendants argue that even if we are not bound by Carpa we are
still precluded, by Rainey v. Jackson State College, 591 F. 2d 1002
(5th Cir. 1979), from affirming the award of interest. The cited decision
was an order of a panel of this Court denying a motion for post-judgment
interest on an award of attorneys’ fees. Because the order was not accom-
A-59
The majority’s departure from the doctrine of stare decisis
presents a grave threat to the orderly administration of justice
in this Circuit at a time in history when adherence is of particu-
lar and vital importance. This court has been restructured in a
fashion unprecedented in the history of the judiciary. With
the implementation of the Omnibus Judgeship Bill of 1978,
Pub. L. 95-486, 92 Stat. 1629 (1978), this Court is now made
up of twenty-six active judges and ten senior judges, most of
whom sit regularly on our panels, Whether or not such a body
can fairly and efficiently articulate, in one voice, the law af-
fecting nearly 50 million people remains to be seen. I submit
that our success may in large part depend on our adherence to
the doctrine of stare decisis. If we give only lip service to the
rule that one panel is bound by prior panel decisions, we run
the risk of transforming what has heretofore been an orderly
institution into an inconsistent, unpredictable body, made
up of three-judge panels that resemble waterbugs chasing each
other around and around the suface of a summer pond.
The issue of interest on costs should be presented to the
entire Court on a proposal that it be considered en banc.
Should a majority of the Court conclude that Carpa was an un-
wise decision, these long persevering plaintiffs can receive a full
loaf instead of the half loaf given them by the majority. More
importantly, it would give the full Court the opportunity
to establish a general rule for the scores of federal statutes that
authorize awards of attorneys’ fees and our-of-pocket expenses.
4/ Continued
panied by a written opinion, it is not clear that Rainey alone would
preclude us from affirming the award of interest. Even if the panel in
Rainey did base its decision on Carpa, an en banc decision declaring that
costs bear interest would eliminate any precedential value that Rainey now
carries.
A-60
If we approach this problem on a case-by-case basis, we can
expect to be deluged with litigation over the more than 75
statutes listed in footnote 14 of the majority opinion. Cf.
Arkansas v, Sanders, 442 U. S. 753, 99 S. Ct. 2586, 2595,
61 L. Ed. 2d 235 (1979) (Blackmun, J. dissenting).
If it be the will of the Court, the correct rule can be an-
nounced en banc, Of course, if a majority of the Court does
not wish the Carpa rule reconsidered, then it should not be,
for it is the Court’s decision to make. It would be a gross
departure from good judicial practice for a three-judge panel
to alter an established rule merely because its members fear
that the full court would not agree with its views.
West Number System
A-61
|
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Nos. 1215, 1235 - September Term, 1979
(Argued April 28, 1980 — Decided June 4, 1980)
Docket Nos. 80-7289, 80-7295
NEW YORK STATE ASSOCIATION FOR
RETARDED CHILDRED, INC. et al.
and
PATRICIA PARISI, et al.,
Plaintiffs-Appellees,
against
HUGH L. CAREY, individually and as Governor of the State
of New York, and EDWARD V. REGAN, individually and as
Comptroller of the State of New York, et al.,
Defendants-Appellants
Before:
LUMBARD, VAN GRAAFEILAND and KEARSE,
Circuit Judges.
3323
A-62
LUMBARD, Circuit Judge:
Hugh L. Carey and Edward V. Regan, the Governor and
Comptroller of the State of New York respectively, appeal from
two orders entered in the Eastern District by Judge Bartels on
April 10, 1980. One order joined the Comptroller as a party,
the other adjudged the Governor and the Comptroller to be
in contempt if funding was not provided for the Willowbrook
Review Panel by April 15th. We granted a stay of the contempt
order pending disposition of this appeal.
Although the Governor was a party to the Consent Judgment
of April 30, 1975, which was designed to improve conditions
for a class of 5200 mentally retarded residents at the Willow-
brook Developmental Center on Staten Island, in part through
the establishment of a Review Panel, we conclude that Gover-
nor Carey has complied with the Consent Judgment by taking
all steps within his lawful authority to secure funding for the
Panel. Furthermore, we conclude that since the Consent Judg-
ment clearly states that the Governor’s efforts are to be made
within the framework of the state constitution and laws, there
is no justification for requiring action in violation of New
York law. Accordingly, the order is reversed.
This action was brought in 1972 by plaintiff and other
similar organizations and the parents of retarded residents on
behalf of all Willowbrook residents against the Governor and
numerous state agencies and officials charged with operating
Willowbrook to improve conditions which were alleged to vio-
late the constitutional rights of the residents. After extended
hearings, the parties agreed to a Consent Judgment signed by
Judge Orrin G. Judd on April 30, 1975, which provided in
part that “Without admission and prior to final findings of
fact and conclusions of law”’ the parties agreed to “additional
steps, standards and procedures necessary to secure the consti-
tutional right to protection from harm for Willowbrook’s
A-63
residents” in order to ensure that the procedures set out in
greater detail in the judgment and accompanying 29 page ap-
pendix would be carried out. The judgment provided for the
creation of a seven member Review Panel.
Paragraph 2 of the Consent Judgment provided:
“Within their lawful authority, including the State constitution
and applicable State laws, and subject to any legislative approval
that may be required, defendants are hereby ordered and en-
joined to take all actions necessary to secure implementation
of the steps, standards and procedures contained in this judg-
ment and in Appendix ‘A’ hereto . . . Defendants shall take
all steps necessary to ensure the full and timely financing of this
judgment, including, if necessary, submission of appropriate
budget requests to the legislature.’ It is conceded that the
Governor has done all in his power to make specific budget
requests to the Legislature to obtain the appropriation of
$342,000 to finance the operation of the Review Panel and
its staff. The funds requested for a Review Panel constituted a
specific line item under the $747,000 requested for “‘Court-
Ordered Program’’. Despite the Governor’s request the Legis-
lature specifically deleted the entire $342,000 item. The Senate
Finance Committee and the Assembly Ways and Means Com-
mitte stated:
The Fiscal Committees support the efforts of the
Executive to meet the community placement mandates
of the Willowbrook Consent Decree. Funding is decreas-
ed by ($348,000) to reflect denial of funding for the
Willowbrook Review Panel and to return reimbursement
rates for other advisory groups to 1979-80 levels.
Apparently the Legislature disapproved of the high per diem
rate to be paid to consultants on the Review Panel. The plain-
tiffs then petitioned the district court to order the restoration
A-64
of the funds and Judge Bartels directed the Governor and the
Controller (about to be joined as a party) to show cause on
April 7 why they should not be ordered to pay the Review
Panel’s expenses or be held in contempt by failure to do so.
After hearing argument, Judge Bartel ordered that the Comp-
troller be joined as a party and that he and the Governor be
adjudged in contempt if funding was not provided by April 15.
Meanwhile, on April 14, the Governor submitted a supplemen-
tal appropriation bill, upon which the Legislature has not yet
acted, to restore the Review Panel’s funds.
Judge Bartels acknowledged at the April 7 show-cause
hearing that Governor Carey has acted entirely in good faith
in this dispute. Nevertheless, Judge Bartels stated in his April
10 Memorandum Decision and Order, “[W]e remain un-
convinced that the Governor, together with the extensive
resources, financial and otherwise, at his disposal, has done
all within his powers, through formal and informal channels,
to see that funding be either restored or replaced.”’ Judge
Bartels then suggested that the Governor, in order to provide
at least temporary funding for the Panel, could draw funds
from any one of five appropriations which, in Judge Bartels’
view, could be considered to comprehend such a use, or could
interchange a portion of appropriated funds pursuant to Sec. 51
of the New York Finance Law. Accordingly, on the ground
that funds from which the Review Panel could be paid were
at the appellants’ disposal, Judge Bartels ordered that Governor
Carey and Comptroller Regan be held in contempt if funding
was not provided for the review Panel by April 15. We reverse.
The appellants can obey Judge Bartels’ order and thereby
avoid the sanctions attending contempt, only by violating the
Constitution and laws of the State of New York. Article VII,
Section 7 of the New York State Constitution prescribes:
No money shall ever be paid out of the state treasury
or any of its funds, or any of the funds under its man-
A-65
agement, except in pursuance of an appropriation by
law;. . . and every such law making a new appropria-
tion or continuing or reviving an appropriation shall
distinctly specify the sum appropriated, and the object
or purpose to which it is to be applied; and it shall not
be sufficient for such law to refer to any other law to
fix such sum.
New York case law states clearly that this provision “‘prohibits
funds from being expended in excess of the amounts appro-
priated and for purposes other than those specified in the
Appropriations Bill.” County of Oneida v. Berle, 91 Misc. 2d
694, 398 N. Y. S. 2d 600, 603 (Sup. Ct. 1977), aff'd
N. Y. 2d (N. Y. Court of Appeals, per curiam, April 1,
1980). In affirming the Supreme Court in Berle, the New
York Court of Appeals reiterated, “However laudable its
goals, the executive branch may not override enactments which
have emerged from the lawmaking process. It is required to
implement policy declarations of the Legislature, unless vetoed
or judicially invalidated.” N. Y. 2d (Slip op.
at 7 (N. Y. Ct. App., April 1, 1980) ). Thus, under New York
law, Governor Carey can legally expend funds for the Review
Panel only if the Legislature has appropriated funds for that
purpose. The Legislature did not appropriate funds for the
Review Panel; on the contrary, it deleted the proposed line
item for the Review Panel and it expressly stated its intention
to deny such funding in the Report of the Senate Finance
Committee and the Assembly Ways and Means Committee. L/
1) Appellees argue that statements in the Report of the Senate Finance
Committee and the Assembly Ways and Means Committee do not amount
to binding statements of legislative intent under New York Public Interest
Research Group, Inc, v. Carey, 55 A. D. 24 274, 390 N. Y. S. 2d 236
(3d Dept. 1976), app. dism. as moot, 41 N. Y. 2d 1072, 896 N. Y. S, 2d
185 (1977), and that Governor Carey can therefore legally expend funds
for the Review Panel. However, even assuming that the report in the case
before us is the same type of report as that in New York Public Interest
A-66
The Legislature’s denial also. bars Governor Carey, notwith-
standing the suggestions of Judge Bartels and appellees, from
drawing funds for the Review Panel from other appropriations
or pursuant to his authority under Section 51 of the New York
Finance Law to interchange up to 5% of different appropria-
tions. Section 43 of the New York State Finance Law states:
Money appropriated for a specific purpose shall not
be used for any other purpose, and the Comptroller
shall not draw a warrant for the payment of any sum
appropriated, unless it clearly appears from the detailed
statement presented to him by the person demanding
the same as required by this chapter, that the purposes
for which such money is demanded are those for which
it was appropriated.
1/ Continued
Research Group, where taxpayers sought to restrain the Governor from
expending funds actually appropriated, we do not find appellee’s argument
persuasive. In that case, the report recommended to the Legislature,
prior to the budget’s enactment, certain reductions in the proposed ap-
propriations and, in conjunction therewith, that certain specific job
titles be abolished. In enacting the budget, the Legislature reduced pro-
posed appropriations and specifically abolished jobs in some instances,
and reduced appropriations but did not specifically abolish jobs in other
instances. The Appellate Division held that the Legislature’s specific
abolition of some jobs and its silence as to other jobs “is sufficient to
destroy reliance upon the Report as establishing the intent to abolish
certain positions where the legislation is silent thereto.” Jd. at 237. In
the case before us, however, the Legislature's deletion of the line item
for the Review Panel wholly accords with the statement of intent in the
Report. There is no reason, therefore, to doubt that the Report's state-
ments represent the Legislature’s intent. Moreover, Governor Carey
could not draw funds for the Review Panel even absent the Report, for
he could not do so in compliance with Section 43 of the New York
Finance Law, as explained infra.
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vy
In light of the Legislature’s denial of funding for the Review
Panel, Governor Carey cannot present to Comptroller Regan
as Section 43 requires, a statement clearly indicating that “the
purposes for which such money is demanded are those for
which it is appropriated.’’ Section 51 does not avail Governor
Carey because it only authorizes an interchange between, on
the one hand, ‘“‘any item or items within a program or purpose”’
and, on the other, “‘any item or items within the same program
or purpose, or with other items . . . contained in the comp-
troller’s classification.” There being no item for the Review
Panel in enacted budget, Governor Carey cannot interchange
funds between the Review Panel and some item that the Legis-
lature did enact.
Appellees argue that Judge Bartels can order Governor
Carey to expend funds for the Review Panel, or face con-
tempt, even if New York law forbids Governor Carey from
expending funds for that purpose. Appellees rest this argument
upon cases which hold that state action, or inaction, cannot
defeat a constitutional or federally created right, See, e. g.,
State of Washington v. Washington State Commercial Passenger
Fishing Vessel Association, 444 U. S. (1979); North
Carolina Board of Education v. Swann, 402 U. S. 43 (1971).
The cases appellees cite did not, however, involve the remedy
ordered in this case: That a state official expend state funds
for a purpose expressly disallowed by the state legislature.
We have previously held, and repeat here, that a federal district
court ought not to put itself “in the difficult position of trying
to enforce a direct order. . . to raise and allocate large sums of
money, . . . steps traditionally left to appropriate executive
and legislative bodies responsible to the voters.”” Rhem uv;
Malcolm, 507 F. 2d 333, 341 (2d Cir. 1974). In the face of
constitutional violations at a state institution, a federal court
cna order the state either to take the steps necessary to recti-
fy the violations or to close the institution. Thus, a state cannot
avoid the obligation of correcting the constitutional violations
of its institutions simply by pleading fiscal inability. Dimarzo
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- .
v. Cahill, 575 F. 2d 16 (lst Cir. 1978); Welsch v. Likins, 550
1122 (8th Cir. 1977); Rhem, supra, But that remedy leaves the
question of the expenditure of state funds in the hands of
citizens of the state, not in the hands of federal judges. Further-
more, the broad remedial powers invoked by appellees are
predicated upon a finding of a constitutional violation. Assum-
ing that the conditions at Willowbrook violated the Constitu-
tion in 1975 when the Consent Judgment was filed, -2/ and
accordingly that the federal court would have had remedial
power to order the establishment of the Review Panel upon a
finding of unconstitutionality, 3/ there is no basis for ad-
ditionally assuming that, by itself, the state’s refusal to fund the
Review Panel, which was established by the Consent judgment,
violates the Constitution.
The wording of the Consent Judgment envisioned the practi-
cal and political difficulties which the Governor necessarily
faced regarding the appropriation of funds to maintain Willow-
brook, and provide for the Review Panel, in accordance with
provisions of the Consent Judgment, Thus, the Governor
consented only to act within his “lawful authority, including
the State Constitution and applicable State laws, and subject
to any legislative approval that may be required.”
Under the Consent Judgment the court cannot compel the
2/ Appellants do not concede that the conditions of Willowbrook
Developmental Center violate the Constitution today.
3/ Nothing in this opinion should be construed to agree with the view
that a federal court properly exercises its function when it takes upon
itself the supervision of a state institution like Willowbrook Develop-
ment Center. From the record before us in New York Association for
Retarded Children v, Carey, 596 F. 2d 27, 33 (2d Cir.), cert denied,
U. 8S. (1979), and in this proceeding, it appears that the
district court has, since 1975, devoted considerable attention to the
detaiis of the operation of the Review Panel and the supervision of Willow-
brook.
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i
Governor to act unlawfully. Those organizations and citizens
who are properly concerned with the supervision of the con-
ditions at Willowbrook must seek to convince their represen-
tatives in the New York State Senate and Assembly, who
control the purse-strings and determine the priorities for the
expenditure of State money, that funds for the Review Panel
should be provided.
Reversed.
KEARSE, Circuit Judge (concurring) :
I concur in the result, but I find it unnecessary, on the facts
of this case, to decide whether a federal court ought to be in
a “ ‘position of trying to enforce a direct order. . . to raise
and allocate large sums of money. . ..’ ” (Majority opinion
6.) And, with all due respect, I do not agree with the impli-
cations of the majority opinion that the only alternatives
available to the district court to remedy constitutional viola-
tions at a state institution are to “‘order the state either to
take the steps ory) to rectify the violations or to close
the institution.” (Id.) -1/ 1 believe that the order of contempt
1/ = The majority cites and endorses Rhem v. Malcolm, 507 F. 2d 333,
841 (2d Cir. 1974), as holding that a district court “ought not” to put
itself in a position of trying to enforce a direct order requiring the expen-
diture of state funds, To the extent that the majority intends this state-
ment, together with the sentence that follows, to reflect a limitation of
the court’s power, I do not believe Rhem should be read so broadly.
In Rhem this Court opted for a remedy which it described as having
“the crucial practical advantage . . . of not putting the judge in the
difficult position of trying to enforce a direct order to the City to raise
and allocate large sums of money. . .” 507 F. 2d at 341 (emphasis ad-
ded). In a footnote the Court indicated that special circumstances might
warrant such an order:
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should be reversed simply because it was not demonstrated
that the Consent Judgment was violated.
The defendants who were parties to the Consent Judgment
included Governor Carey and other State officials but did not
include the State Legislature. Paragraph 2 of the Consent
Judgment expressly stated that the defendants would take
the actions required by the Judgment, which included the
funding of the Review Panel, -2/ within the framework of the
State’s constitution and laws, and subject to any legislative
approval that might be required. Paragraph 2 concluded with
1/ Continued
{S]Jince prohibiting use of the Tombs to incarcerate detainees
is a viable alternative, we do not have a situation where the
unconstitutionally-administered governmental function must be
kept operating in any event. In such a case, a court might have
no choice but to order an expensive, burdensome or administra-
tively inconvenient remedy.
507 F. 2d at n. 19.
There is little doubt that a federal court can issue a remedial order
which as a practical matter requires expenditures by the state. See Mil-
likin v, Bradley, 433 U. S. 267, 289 (1977) (upholding order requiring
state to bear expenses since federal court can “enjoin state officials to
conform their conduct to requirements of federal law, notwithstanding
a direct and substantial impact on the state treasury’). The courts under-
standably have been reluctant to cause “needless direct confrontations”
with state legislatures, Welsch v. Likins, 550 F. 2d 1122, 1132 (8th Cir.
1977), and in some cases have merely expressed the hope that state legis-
latures will cooperate once their constitutional duty is made clear, See,
e. g., N. Y. 8. Ass'n for Retarded Children v. Carey, 596 F. 2d 27, 38-
39 (2d Cir, 1979); Welsch v. Likins, supra, 550 F., 2d at 1132.
2/ Paragraph 7(c) of the Consent Judgment provides, in part: “Review
Panel members and Review Panel staff shall receive appropriate compen-
sation from defendants, on a monthly basis, and shall promptly be reim-
bursed by defendants for reasonable out of pocket expenses incurred in
performing the duties of the Review Panel.”
A-71
the requirement that “Defendants should take all steps neces-
sary to ensure full and timely financing of this Judgment,
including, if necessary, submission of appropriate budget
requests to the legislature.”
The district court found that the Governor had made a good
faith effort to ensure financing for the Review Panel, through
the submission of a budget request which expressly sought
$342,300 for “services and expenses of the Willowbrook
Review Panel. including compensation for panel members.” -3/
The legislature deleted this line from the proposed budget
and enacted the budget without providing funds for the Review
Panel. The legislature’s Fiscal Committees’ Report on the bud-
get stated as follows:
The Fiscal Committees support the efforts of the
Executive to meet the community placement mandates
of the Willowbrook Consent Decree. Funding is decreas-
ed by ($348,000) to reflect denial of funding for the
Willowbrook Review Panel and to return reimburse-
ment rates for other advisory groups to 1979-80 levels.
(Emphasis added.) Thus the Governor’s request for Review
Panel funds was denied by the legislature.
The district court was nevertheless critical of the Governor
for not funding the Review Panel out of moneys appropriated
3/ Prior to entry of the contempt order below, the Governor had
submitted to the legislature a supplemental appropriation bill, with a
“message of necessity,” to restore funds for the Review Panel. The legis-
lature had not acted upon this request by the date of oral argument and
we are unaware of any action since that time.
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elsewhere in the budget. Yet, as pointed out by the majority,
New York law forbids the Governor’s expenditure of funds
for purposes specifically eliminated by the legislature. In
New York Public Interest Research Group, Inc. v. Carey,
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