# Petition — Louisiana v. Gary W.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 450 U.S. 994

## Text

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

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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

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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).

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(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.

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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.

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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)).

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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.

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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.

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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.

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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.

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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

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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.

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§ 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

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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.

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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.

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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.

A-67

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

A-68

- .

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.

A-69

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:

A-70

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.”

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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,
86 Misc. 2d 329, 383 N. Y. S. S. 2d 197 (Sup. Ct.), Aff’d 55
A. D. 2d 274, 390 N. Y. S. 2d 236 (3d Dep't 1976), app.
dism. as moot, 41 N. Y. 2d 1072, 396 N. Y. 2d 185 (1977),
the New York court held that expenditures could be made in
spite of disapproval expressed in a committee report so long
as they were not for specific items that had been deleted from
the budget; but the court observed that if a specific deletion
had been made, no expenditure could lawfully follow:

Prior to such enactment these committees reviewed
the requests of difference executive departments and in
some instances conducted hearings and made certain
amendments to the Budget Bill. To the extent that the
Bill itself specifically eliminated certain positions and
programs there is no dispute. Those positions and
programs were effectively eliminated by appropri-
ate legislative action and it is agreed that no expendi-
tures can be made for any such position or program.

86 Misc. 2d at 330, 383 N. Y. S. 2d at 198 (emphasis added).
Appellees would have us find that the legislature did not in fact
intend to deny funding for-the Review Panel, on the strength
of a general statement in the preamble to the budget that the
budget “reflects . . . the State’s continued commitment to
comply with the requirements of the Consent Judgment.”
I do not believe we are entitled to infer from this general
statement an intention that Review Panel funding be con-
tinued, 4/ in light of the action of the legislature in deleting the
Review Panel line of the proposed budget and the express

4j ‘If the legislature is truly committed to compliance with the entire
Consent Judgment, and not just so much of the Judgment as it chose

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statement that the deletion was to ‘“‘reflect denial of such
funding. Consequently I conclude that the Governor has done
all within his lawful power to secure funding for the Review
Panel.

Appellees argue that the contempt order nevertheless should

be affirmed because state law cannot be allowed to thwart
the effectuation of federally-mandated remedial measures. -5/ ;
While I would agree with this general proposition within
appropriate limits, I do not consider it applicable to the present
circumstances. The Consent Judgment clearly does not impose
on the Governor any obligation to take action that is not
within his “lawful authority,” and the express recognition of
that Judgment that funding may require “‘requests”’ to the legis-
lature recognizes implicitly that such a request (to a body not
party to the lawsuit) may be denied. Where the parties have
chosen to condition defendants’ performance of remedial
steps, however important they may be, on state legislative
approval, there is no justification for invalidating the with-
holding of that approval.

The importance of the Review Panel in the remedial scheme
is clear from the Consent Judgment and was emphasized by this

4/ Continued

to budget for, perhaps it will act favorably upon the supplemental appro-
priation request described in note 3 supra.

5/ Cf. State of Washington v. Washington State Commercial Passenger
Fishing Vessel Ass’n, 443 U. S. 658, 695 (1979) (federal court can order
state agency to prepare rules implementing federal court’s order even if
state law withholds from agency power to do so); North Carolina State
Board of Education v. Swann, 402'U. S. 43, 45 (1971) (invalidation of
state anti-busing statute since statute “‘would inescapably operate to
obstruct the remedies granted by the District Court. . .’’).

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Court in New York State Ass’n for Retarded Children v. Carey,
596 F. 2d 27 (2d Cir. 1979). The Panel is given responsibility
for monitoring compliance, reporting to the court and recom-
mending resolutions to disputes. Denial of funding for the
Panel may result in a halt to all efforts toward implementa-
tion - even efforts that require no special legislative approval
or funding - unless an alternative monitoring technique is de-
vised. Since the Panel’s responsibilities included dispute-resolu-
tion, the absence of the Panel may also result in more judicial
involvement in implementing the Judgment.

District courts enjoy broad discretion in designing and en-
forcing equitable remedies, see Hart v. Community School
Board, 512 F. 2d 37, 55 (2d Cir. 1975); Bridgeport Guardians,
Inc. v. Bridgeport Civil Service Comm'n, 482 F. 2d 1333, 1340
2d Cir. 1973), and have employed a variety of techniques for
such purposes, see Special Project, The Remedial Process in
Institutional Reform Litigation, 78 Colum. L. Rev. 784, 821-
37, 858-70 (1978). Paragraph 9 of the Consent Judgment
provides for retention of jurisdiction in the district court “‘for
the purpose of enabling any party to apply at any time for

- such further orders as may be necessary or appropriate
for the construction of, implementation of, or enforcement of
compliance with this judgment or any of the provisions there-
of.” In view of the Governor’s avowed commitment to imple-
mentation of the Consent Judgment, the district court and
the parties may well be able’ to arrive at an alternative method
for monitoring compliance and resolving disputes. It is clear
from the terms of the Consent Judgment, however, that the
relief appellees seek here-continuation of state funding for
the Review Panel-cannot be obtained in the face or express
legislative disapproval.

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U. S. Constitution, Tenth Amendment

“The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved
to the States respectively, or to the people.”

U. S. Constitution, Eleventh Amendment

“The Judicial power of the United States shall not be con-
strued to extend to any suit in law or equity, commenced
or prosecuted against one of the United States by Citizens of
another State, or by Citizens or Subjects of any Foreign State.”

42 U.S.C. Section 1988 (1976)
Proceedings in vindication of civil rights

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 vindication, 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 jurisdiction of such civil
or criminal cause is held, so far as the same is not inconsistent
with the Constitution and 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 infliction of punishment of the party found guilty.
In any action or proceeding to enforce a provision of sections
1981, 1982, 1983, 1985, and 1986 of this title, title IX of
Public Law 92-318, or in any civil action or proceeding, by or
on behalf of the United States of America, to enforce, or
charging a violation of, a provision of the United States Internal
Revenue Code, or title VI of the Civil Rights Act of 1964, the
court, in its discretion , may allow the prevailing party, other
than the United States, a reasonable attorney’s fee as part of

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the costs.

As amended Pub. L. 94-559, Section 2, Oct. 19, 1976, 90
Stat. 2641.

Federal Rules of Civil Procedure “Rule 69. Execution

(a) In General. Process to enforce a judgment for the pay-
ment 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 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. In aid of the judgment or execution, the judgment
creditor or his successor in interest when that interest appears
of record, may examine any person, including the judgment
debtor, in the manner provided in these rules for taking deposi-
tions or in the manner provided by the practice of the state
in which the district court is held.”

Federal Rules of Civil Procedure “Rule 70. Judgment for
Specific Acts, Vesting Title

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 direct 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. On application of the party entitled to perfor-
mance, the clerk shall issue a writ of attachment or sequestra-
tion against the property of the disobedient party to compel
obedience to the judgment. The court may also in proper
cases adjudge the party in contempt. If real or personal proper-
ty is within the district, the court in lieu of directing a convey-
ance therof may enter a judgment divesting the title of any
party and vesting it in others and such judgment has the effect

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of a conveyance executed in due form of law. When any order
or judgment is for the delivery of possession, the party in whose
favor it is entered is entitled to a writ of execution or assis-
tance upon application to the clerk.”

1974 Louisiana Constitution, Art. VII, Sec. 10(a)
“Appropriations. Except as otherwise provided by this con-

stitution, money shall be drawn from the state treasury only

pursuant to an appropriation made in accordance with law.”’

1974 Louisiana Constitution, Art. XII, Sec. 10(c)

“Procedure; Judgments. The legislature shall provide a
procedure for suits against the state, a state agency, or a politi-
cal subdivision. It shall provide for the effect of a judgment,
but no public property or public funds shall be subject to sei-
zure. No judgment against the state, a state agency, or a politi-
cal subdivision shall be exigible, payable, or paid except from
funds appropriated therefor by the legislature or by the politi-
cal subdivision against which judgment is rendered.”

A-78

LEGISLATIVE CALENDAR
HOUSE BILLS
THIRD REGULAR SESSION, 1977

HOUSE BILL No. 1621
By Mr. Bella:

AN ACT

To appropriate the sum of Two Hundred Four Thousand Nine
Hundred and Sixteen and 88/100 ($204,916.88) Dollars,
plus legal interest from date of judicial demand, until paid and
costs of court which the state may be legally liable, out of the
General Funds of the State of Louisiana to be used to pay
the final judgment in the suit entitled “Gary W., et al vs. Wil-
liam Stewart, et al,” bearing Number 74-2412 on the docket
of the United States District Court for the Eastern District
of Louisiana.

HOUSE

May 3
Read by title. p. 99

May 3
Introduce by title only.
Read by title.
Return to the Calendar under the rules. p. 86

May 18

Called from the Calendar.

Read by title, amended, and referred to the Committee on
Appropriations p. 64

OFFICIAL JOURNAL
OF THE
HOUSE OF REPRESENTATIVES
OF THE

STATE OF LOUISIANA

FIFTH DAY’S PROCEEDINGS

FOURTH
EXTRAORDINARY SESSION OF THE LEGISLATURE
: UNDER THE ADOPTION OF THE
CONSTITUTION OF 1974

HOUSE OF REPRESENTATIVES
STATE CAPITOL
STATE OF LOUISIANA
Thursday, August 1, 1977, Baton Rouge, La.

The House was called to order at 9:00 a. m., by Hon. E. L.
Henry, Speaker of the House of Representatives.

PAGE 15 HOUSE
5th Days Proceedings - August 11, 1977

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HOUSE OF
REPRESENTATIVES

OF THE

STATE OF LOUISIANA

EIGHTEENTH DAY’S PROCEEDINGS

Third Regular Session Of The Legislature
Under The Adoption Of The
Constitution of 1974
HOUSE OF REPRESENTATIVES
STATE CAPITOL
STATE OF LOUISIANA
Wednesday, May 18, 1977, Baton Rouge, La.

The House was called to order at 9:00 a. m., by Honorable
E. L. Henry, Speaker of the House of Representatives.

PAGE 64 HOUSE
18th Days Proceedings - May 18, 1977

HOUSE BILL NO. 1621
By Mr. Bella:

AN ACT
To Appropriate the sum of Two Hundred Four Thousand Nine

Hundred and Sixteen and 88/100 ($204, 916.88) Dollars,
plus legal interest from date of judicial demand, until paid and

A-81

costs of court which the state may be legally liable, out of the
General Funds of the State of Louisiana to be used to pay
the final judgment in the suit entitled “Gary W., et al vs. Wil-
liam Stewart, et al,” bearing Number 74-2412 on the docket
of the United States District Court for the Eastern District
of Louisiana.

Called from the Calendar.
Read by title.

Mr. Bella sent up floor amendment which was read as follows:
HOUSE FLOOR AMENDMENTS

Amendment proposed by Mr. Bella to House Bill No. 1621
by Mr. Bella.

Amend original bill as follows:
AMENDMENT NO. 1

On page 1, line 11, after “Section 1.” add the following:

“The sum of Two Hundred Four Thousand Nine Hundred
Sixteen and 88/100 ($204,916.88) Dollars, plus legal interest
from date of judicial demand, until paid and costs of court
for which the state may be legally liable, is hereby appropriated
out of the General Fund of the state of Louisiana to be used
to pay the final judgment in the suit entitled “Gary W. et al
vs. William Stewart, et al.,” bearing Number 74-2412 on the
docket of the United States District Court for the Eastern
District of Louisiana.

Section 2. This Act shall become effective upon signature
by the governor, or if not signed by the governor, upon expira-
tion of the time for bills to become law without signature by
the governor, as provided by Article III Section 18 of the

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Constitution.

Section 3. The judgment provided for in Section | hereof
shall be deemed to have paid on the effective date of this Act
and legal interest shall cease to run as of that date.”

On motion of Mr. Bella, the amendment was adopted.

Under the rules the above bill was referred to the Committee
on Appropriations.

HOUSE BILL NO. 15
By Mr. Bella:

AN ACT

To appropriate the sum of Two Hundred Four Thousand Nine
Hundred and Sixteen and 88/100 (204,916.88) Dollars, plus
legal interest from date of judicial demand, until paid and costs
of court for which the state may be legally liable, out of the
General Fund of the State of Louisiana to be used to pay the
final judgment in the suit entitled “Gary W., et al vs. William
Stewart, et al,” bearing Number 74-2412 on the docket of the
United States Court for the Eastern District of Louisiana.

Called from the Calendar.

The Bill was read by title.
Mr. Bella moved the final passage of the Bill.

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ROLL CALL
The roll was called with the following result:

YEAS
Total 47

NAYS
Total 48

ABSENT
Total 10

And the Chair declared that the above Bill failed to pass.

A-84

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0874%3A1. Public record. Not legal advice.