Stanton v. Bond Motion for Leave to File and Brief Amicus Curiae

    I n  T h e

i>tutn>mr Glmttl itf tljj? Imtrft
October Term, 1976

No. 75-1413

Wayne A. Stanton, et al.,
Petitioners,v.

Louise Bond, et al.,
_________ Respondents.

On Writ of Certiorari to the United States 
Court of Appeals for the Seventh Circuit

MOTION FOR LEAVE TO FILE 
AND

BRIEF FOR THE LAW YERS’ COMMITTEE FOR CIVIL 
RIGHTS UNDER LAW  AS AMICUS CURIAE

A lbert E. Jenner, Jr. 
Stephen J. Pollak 

Lawyers’ Committee for 
Civil Rights Under Law

Armand Derfner 
P.O. Box 608
Charleston, South Carolina 29402

Robert A. Murphy 
Joel L. Selig 
Norman J. Chachkin 
William E. Caldwell

Suite 520 Woodward Building 
733 - 15th Street, N.W. 
Washington, D. C. 20005

Attorneys for Amicus Curiae

W i l s o n  - Ep e s  Pr i n t i n g  C o . .  In c . - R e 7 - 6 0 0 2  - W a s h i n g t o n . D.  C. 2 0 0 0 1



In The

Bupvmm (to rt itf %  Imtrft S>tut?s
October Term, 1976

No. 75-1413

Wayne A. Stanton, et al.,
Petitioners,

v.

Louise Bond, et al.,
Respondents.

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

Amiens curiae Lawyers’ Committee for Civil Rights 
Under Law respectfully seeks leave to file the attached 
Brief in order to assist the Court in resolving an issue 
of critical importance— the power of a federal court to 
award attorneys’ fees against state officials. The Law­
yers’ Committee’s interest in this case stems from its 
longstanding" concern with the problem of devising reme­
dies that will secure the effective enforcement of federal 
civil rights laws, as more fully described in the “ Interest 
of Amicus Curiae” section of the attached Brief. In this 
connection, the Lawyers’ Committee has been especially 
concerned for a number of years with issues relating to 
the award of attorneys’ fees in civil rights cases, and 
has filed briefs as amicus curiae in this Court in such 
cases as Bradley v. School Bd. of Richmond, 416 U.S. 696 
(1974); Alyeska Pipeline Service Co. v. Wilderness So­
ciety, 421 U.S. 240 (1975) ; and Fitzpatrick v. Bitzer,



44 U.S.L.W. 5120 (U.S. June 28, 1976), as well as in 
various federal Courts of Appeals and state courts.

As of the time at which this Brief must be printed, 
amicus has received consent from the Respondents but 
has not yet been notified whether the Petitioner will con­
sent to the filing of this Brief. (A copy of the Respond­
ents’ letter of consent has been filed with the Clerk of 
this Court).

WHEREFORE, amicus Lawyers’ Committee for Civil 
Rights Under Law respectfully moves that its Brief be 
filed in this case.

Respectfully submitted,

Armand Derfner 
P.O. Box 608
Charleston, South Carolina 29402

Robert A. Murphy 
Joel L. Selig 
Norman J. Chachkin 
W illiam E. Caldwell 

Lawyers’ Committee for 
Civil Rights Under Law 

Suite 520 Woodward Building 
733 - 15th Street, N.W. 
Washington, D. C. 20005

Attorneys for Amicus Curiae



TABLE OF CONTENTS

Table of Authorities .........

Interest of Amicus Curiae

Argument .............................

Conclusion .............................

TABLE OF AUTHORITIES
Cases

Allen v. Illinois, 397 U.S. 337 (1970) .......................
Allen V. State Board of Elections, 393 U.S. 544

(1969) ..............................................-.............................
Alyeska Pipeline Service Co. v. Wilderness Society,

421 U.S. 240 (1975) ............ -.....................................2
Amos v. Sims, 409 U.S. 942 (1972) aff’g 340 F.

Supp. 691 (M.D. Ala. 1972) -----------------------------
Bond V. Stanton, 528 F.2d 688 (7th Cir. 1976) ......
Boston Chapter NAACP, Inc. V. Beecher, 504 F.2d

1017 (1st Cir. 1974), cert, denied, 421 U.S. 910
(1975) .................. ..........................................................

Bradley V. School Board of Richmond, 416 U.S.
696 (1974) ................................ .....................................

Chapman v. Meier, 420 U.S. 1 (1975)........................
Cherokee Nation V. Oklahoma, 397 U.S. 620

(1970) ............................................................................
Class V. Norton, 505 F.2d 123 (2d Cir. 1974) ........
Connor V. Williams, 401 U.S. 549 (1972) .................
Edelman V. Jordan, 415 U.S. 662 (1974) ...............-5
Epperson V. Arkansas, 393 U.S. 97 (1968) ............
Ex parte Young, 290 U.S. 123 (1908) .................3,4
Fairmont Creamery Co. V. Minnesota, 275 U.S. 70

(1927) - ......... -................................................- ......... 3,
Fitzpatrick v. Bitzer, 44 U.S.L.W. 5120 (U.S. June

28, 1976) ....................................................................... 2
General Oil Co. v. Crain, 209 U.S. 211 (1908) ........
Goldfarb V. Virginia State Bar, 421 U.S. 773

(1975) ............................................. ..............................
Hans v. Louisiana, 134 U.S. 1 (1890) .......................

Page

I
1
3

11

9

6

, 8,10

10
10

7

2
6

7
7,10 

6
, 7,10 

6
, 5,11 

6, 7,8

:, 8,10
4

7
7



II

TABLE OF AUTHORITIES— Continued
Page

Jenkins V. Georgia, 418 U.S. 153 (1974) _________  6
Jordan V. Gilligan, 500 F.2d 701 (6th Cir. 1974),

cert, denied, 421 U.S. 991 (1975) ______________  10
Keyes V. School District No. 1, 413 U.S. 189

(1973) ._....................... ............................... ...... ............ 7
McClanahan V. State Tax Commission of Arizona,

411 U.S. 164 (1973) _____________________________ 6-7
McCrary V. Runyon, 44 U.S.L.W. 5034 (U.S. June

25, 1976) ...............................................     9
Milliken V. Bradley, 418 U.S. 717 (1974) _________  7
National Hockey League V. Metropolitan Hockey 

Club, Inc., 44 U.S.L.W. 3754 (U.S. June 30,
1976) _____________     10

Skehan V. Board of Trustees, 501 F.2d 31 (3d Cir.
1974), vacated, 421 U.S. 983 (1975) ____ _______  10

Souza V. Travisono, 512 F.2d 1137 (1st Cir.), va­
cated, 423 U.S. 809 (1975) ___________ ___ ______  10

Spence V. Washington, 418 U.S. 405 (1974)  ....... . 6
Thonen V. Jenkins, 517 F.2d 3 (4th Cir. 1975) ___  10

Constitution and Statutes

United States Constitution:

Article III .............. ....................... .......................... 6, 7
Eleventh Amendment ...........................................  4, 5

United States Code:

5 Stat. 518 ............. ................ ....... ..... .......... ........  8
10 Stat. 161 .............................................................  8
28 U.S.C. 1920 ........................................................  8
28 U.S.C. 1923 ........................................................  8

Federal Rules of Appellate Procedure

Rule 38 .........   9

Federal Rules of Civil Procedure

Rule 37(a) (4) ........................................................  9
Rule 37 (c) ...............................................................  9



Ill

TABLE OF AUTHORITIES— Continued

Other Authorities Page

C. Wright, Handbook of the Law of Federal Courts
(2d Ed. 1970) .............................................   4

Note, Attorneys’ Fees and the Eleventh Amend­
ment, 88 HARV.L.REV. 1875 (1975) ..................... 7



In The

itpronr (tort of t!?r llntlpb Btntxn
October Term, 1976

No. 75-1413

Wayne A. Stanton, et al.,
Petitioners,

v.

Louise Bond, et al.,
Respondents.

On Writ of Certiorari to the United States 
Court of Appeals for the Seventh Circuit

BRIEF FOR THE LAW YERS’ COMMITTEE FOR CIVIL 
RIGHTS UNDER LAW  AS AMICUS CURIAE

Interest of Amicus Curiae

The Lawyers’ Committee for Civil Rights Under Law 
was organized in 1963 at the request of the President 
of the United States, John F. Kennedy, to involve private 
attorneys throughout the country in the national effort 
to assure civil rights to all Americans. The Committee’s 
membership today includes two former Attorneys Gen­
eral, fourteen past Presidents of the American Bar As­
sociation, two former Solicitors General, a number of law



2

school deans, and many of the nation’s leading lawyers. 
Through its national office in Washington, D.C. and its 
offices in Jackson, Mississippi and eleven other cities, 
the Lawyers’ Committee over the past thirteen years 
has enlisted the services of over a thousand members of 
the private Bar in addressing the legal problems of 
minorities and the poor in voting, education, employ­
ment, housing, municipal services, and the administra­
tion of justice.

The primary objective of the Lawyers’ Committee is 
to help develop the legal resources necessary to enforce 
fully the civil rights of minorities and the poor. Through 
the efforts of the Lawyers’ Committee and similar groups, 
a great deal of high-quality legal service has been pro­
vided by the volunteer activities of the private Bar. 
However, the experience of the Lawyers’ Committee over 
the past decade compels the conclusion that these valu­
able but limited legal resources are inadequate by them­
selves to effectuate fully the basic civil rights created 
by Congress and embodied in the Constitution.

Accordingly, we have participated as amicus curiae in 
recent cases in this Court concerning awards of counsel 
fees in civil rights litigation, Bradley v. School Bd. of 
Richmond, 416 U.S. 696 (1974) ; Alyeska Pipeline Service 
Co. V. Wilderness Society, 421 U.S. 240 (1975) ; Fitz­
patrick V. Bitzer, 44 U.S.L.W. 5120 (U.S. June 28, 1976), 
because we have concluded that such awards are essential 
elements of the relief appropriate for those who have 
vindicated federal rights which depend in large measure 
upon private enforcement. Such awards also serve other 
essential functions in cases such as the one at bar, for 
they make available to federal judges an appropriate 
sanction in controlling the conduct of litigants and they 
provide an effective deterrent to others who would litigate 
in an unacceptable manner.



3

In the instant case the petitioners, who are state 
officials, do not challenge (and do not raise any question 
concerning) the finding that they acted in bad faith and 
that the attorneys’ fees awarded by the courts below are 
therefore appropriate under established equitable prin­
ciples. In these circumstances the only question is 
whether state officials who have in fact litigated in bad 
faith are nonetheless immune to an award of attorneys’ 
fees which would concededly be proper against any other 
litigant.

The Lawyers’ Committee litigates a variety of civil 
rights cases against state governments and their officials. 
To permit state officials who litigate in bad faith to 
clothe themselves with this kind of immunity will have 
a pernicious effect on our efforts to require state govern­
ments to live up to their legal and Constitutional obliga­
tions. Amicus therefore has a vital interest in this 
matter and in urging this Court to affirm the award of 
attorneys’ fees.

ARGUMENT

Petitioners do not argue that federal courts lack power 
to grant attorneys’ fees as costs against parties in gen­
eral who are guilty of litigating in bad faith. Rather, 
petitioners’ sole challenge is that, as state officials, they 
alone are not subject to such costs. That argument is 
foreclosed by this Court’s decisions' in Ex parte Young, 
290 U.S. 123 (1908), and Fairmont Creamery Co. v. 
Minnesota, 275 U.S. 70 (1927), two cases not cited by 
the petitioners.

Analysis of the petitioners’ defenses here must begin 
with Ex parte Young, for it is that case which gives 
rise to the respondents’ right to bring this suit against 
state officials. The doctrine that state officers are suable, 
established by Ex parte Young, has been called “ indis­
pensable to the establishment of constitutional govern­



4

ment and the rule of law.” C. Wright, Handbook of the 
Law of Federal Courts 186 (2d ed. 1970). That doc­
trine is a fundamental mechanism for enforcing federal 
rights and protecting citizens from violations of their 
federal rights committed in the name of their state gov­
ernment. As this Court said in General Oil Co. v. Crain, 
209 U.S. 211, 226 (1908), decided the same day as Ex 
parte Young:

Necessarily to give adequate protection to constitu­
tional rights a distinction must be made between 
valid and invalid state laws, as determining the 
character of the suit against state officers. And the 
suit at bar illustrates the necessity. I f a suit against 
state officers is precluded in the national courts by 
the 11th Amendment to the Constitution, and may 
be forbidden by a state to its courts, as it is con­
tended in the case at bar that it may be, without 
power to review by this court, it must be evident 
that an easy way is open to prevent the enforcement 
of many provisions of the Constitution; . .  .

The doctrine of Ex parte Young, and the remedies 
available once state officials are properly before the fed­
eral courts, are not unlimited. Two years ago this Court 
defined a major boundary when it held that back pay­
ments of welfare benefits could not be required of the 
states—no matter whether such payments were called

1 Nor did the Court regard this as a fanciful possibility, for it 
was fully aware that government officials may misuse their power 
even where they do not deliberately set out to interfere with con­
stitutional rights:

Zeal for policies, estimable, it may be, of themselves, may over­
look or underestimate private rights. The swift execution of 
the law may seem the only good, and the rights and interests 
which obstruct it be regarded as a kind of outlawry. See Ex 
parte Young, where this subject is fully discussed and the cases 
reviewed.

209 U.S. at 227.



5

damages or equitable restitution. Edelman v. Jordan, 415 
U.S. 662 (1974).

Edelman acknowledges that the difference between re­
lief barred by the Eleventh Amendment and that per­
mitted under Ex parte Young is often subtle, 415 U.S. 
at 667. While characterizing the Eleventh Amendment as 
a protection of the state treasury from potentially ruin­
ous money awards, Edelman recognizes that many forms 
of equitable relief have great fiscal impact on state 
treasuries ; but such an “ ancillary effect” is a “permissible 
consequence”  of Ex parte Young. 415 U.S. at 668. Edel­
man essentially draws the line between “ a monetary loss 
resulting from a past breach of legal duty on the part 
of the defendant state officials”  (direct effect), and pay­
ments which are a necessary consequence of the suit 
itself (ancillary effect). 415 U.S. at 668.

The distinction is decisive in this case. The normal 
incidents and consequences of a federal court action— 
e.g., filing costs, witness fees, and properly awarded at­
torneys’ fees— are ancillary in nature. Such incidents 
of litigation are not in the nature of actions on pre­
existing state debts; they are not “ a monetary loss re­
sulting from a past breach of legal duty.” They do not 
derive from the prior conduct of the state or its officials 
which gave rise to the underlying cause of action. They 
are not designed to compensate, nor to provide repara­
tions for, the victims of unlawful conduct. Except for the 
fact that such costs of litigating also involve dollars, 
there is no resemblance to the “ award of damages against 
the State” which is forbidden by Edelman. 415 U.S. at 
668.

Rather, the attorneys’ fees at issue here are an inci­
dental expense of the litigation itself and, as such, are 
within a court’s inherent power to control the litigation 
before it. That power was affirmed a half century ago



6

in Fairmont Creamery Co. v. Minnesota, 275 U.S. 70 
(1927). In that case, Minnesota made the explicit claim 
that, as a sovereign state, it could not be taxed with the 
prevailing party’s costs of suit. This Court held that 
a state can be made to bear the expenses of proceedings 
in federal court:

But is the state to be regarded as the sovereign here? 
This court is not a court created by the state of 
Minnesota. The case is brought by a writ of error 
issued under the authority of the United States by 
virtue of the Constitution of the United States. It 
is not here by the state’s consent but by virtue of a 
law, to which it is subject. Though a sovereign, in 
many respects, the state when a party to litigation 
in this court loses some of its character as such.

275 U.S. at 74. The practice of taxing costs against 
states in the same way as against other litigants has been 
invariable and has continued to this day.2

2 Amicus State of California (though not the petitioners) at­
tempts to limit Fairmont Creamery on the ground that the case 
began as a criminal prosecution brought by the State of Minnesota. 
But this Court made it clear that no such limitation was intended, 
and that the power to tax costs against any litigant attaches in all 
eases properly within the Article III jurisdiction of a court of the 
United States. Thus, the Court “ treat[ed] the state just as any 
other litigant, and imposfed] costs on it as such,” 275 U.S. at 77; 
and it referred to 129 cases, dating back to 1860, which show that 
“ the invariable practice has been when the judgment has been 
against a state in both civil and criminal cases to adjudge costs 
against it.” Id.

The Court has continued to apply the Fairmont Creamery rule, 
without distinction, to tax costs against states, state agencies, and 
state officials; in cases coming up from the federal courts and from 
the state courts; and in cases where the states are plaintiffs and in 
cases where the states are defendants. See, e.g., the judgments in 
Jenkins V. Georgia, 418 U.S. 153 (1974); Spence V. Washington, 
418 U.S. 405 (1974) ; Epperson V. Arkansas, 393 U.S. 97 (1968); 
Allen V. State Board of Elections, 393 U.S. 544 (1969); Connor v. 
Williams, 401 U.S. 549 (1972) ; Chapman V. Meier, 420 U.S. 1 
(1975) ; McClanahan V. State Tax Commission of Arizona, 411



7

The attorneys’ fee issue in this case is settled by the 
decision in Fairmont Creamery because such fees are 
costs of litigation. They are “ incidents of the hearing,” 
which “ attach to the regular jurisdiction” of a court of 
the United States under Article III of the Constitution. 
275 U.S. at 77.

The equivalence of costs and fees is established by 
function and tradition. Both are closely related to a 
court’s power and obligation to manage the litigation 
before it. And their amount varies with the nature, 
length and complexity of the litigation itself.3

In keeping with their functional equivalence, fees have 
traditionally been regarded by Congress as in the nature

U.S. 164 (1973); Goldfarb V. Virginia State Bar, 421 U.S. 773 
(1975); Cherokee Nation V. Oklahoma, 397 U.S. 620 (1970).

The question has been raised again recently, and the rule of 
Fairmont Creamery reiterated by two courts of appeals. Boston 
Chapter NAACP, Inc. V. Beecher, 504 F.2d 1017, 1028 (1st Cir. 
1974), cert, denied, 421 U.S. 910 (1975); Class v. Norton, 505 F.2d 
123 (2d Cir. 1974).

3 A recurring theme of the state immunity cases has been concern 
about the potentially ruinous effect unregulated monetary awards 
might have upon state treasuries. This concern was most acute in 
cases like Hans v. Louisiana, 134 U.S. 1 (1890), involving the size 
of the state’s debt, but it was also alluded to in Edelman V. Jordan, 
415 U.S. 662, 665-66 (1974). In this respect, while an attorneys’ 
fee award will ordinarily be larger than the other costs taxed in 
a given case, both are invariably so limited that neither could dis­
rupt a state treasury. Indeed, most attorneys’ fee awards are 
miniscule compared with the dollar expense of complying with an 
injunction. Moreover, many cases involve other taxable costs which 
are larger than most attorneys’ fee awards. Compare the $2,366 
attorneys’ fee granted in this case with the costs awarded in this 
Court alone in such cases as Milliken V. Bradley, 418 U.S. 717 
(1974) ($20,329.60) ; Keyes v. School District No. 1, 413 U.S. 189 
(1973) ($28,905.48). See also the listing of attorneys’ fees in­
volved in other cases involving state officials in Note, Attorneys’ 
Fees and the Eleventh Amendment, 88 TIarv. L. Rev. 1875, 1896 
n.126 (1975).



8

of costs.4 For example, attorneys’ fees have been in­
cluded among those costs regulated by general cost 
statutes, such as the Act of August 23, 1842, which gave 
this Court power (5 Stat. 518) :

to make and prescribe a table of the various items 
of costs which shall be taxable and allowed in ail 
suits, to the parties, their attorneys, solicitors, and 
proctors, to the clerk of the court, to the marshal 
of the district, and his deputies, and other persons 
serving processes, to witnesses, and to all other per­
sons whose services are usually taxable in bills of 
costs.

The same pattern was followed in 1853 when Congress 
itself undertook to set attorneys’ fees (10 Stat. 161), 
and has continued to the present in the form of 28 
U.S.C. §§ 1920 and 1923. Under these provisions, attor­
neys’ fees are retained as taxable costs.

The virtual identity of fees and other items of costs 
was recognized in an amicus brief filed by Indiana (pe­
titioners here) and 19 other states in Fitzpatrick v. 
Bitzer, 44 U.S.L.W. 5120 (U.S. June 28, 1976) : “ Costs 
taxed against the state, however minimal, nevertheless 
are paid from the state treasury, as are attorneys’ fees 
awarded against the state.” Brief of the Commonwealths 
of Pennsylvania and Virginia, et al., as amici curiae in 
No. 75-283, at p. 25. From this, these state amici con­
cluded flatly that “Fairmont Creamery should be explicitly 
overruled.” Id. We agree with these state amici (in Fitz­
patrick) that the attorneys’ fee award cannot be re­
versed unless this Court is to overrule Fairmont Cream­
ery and leave states and state officials— unlike any other

4 It is true that the general American rule treats attorneys’ fees as 
a cost which is not ordinarily taxable, but as this Court only re­
cently reiterated, that is a matter of statute or equitable discretion, 
not a matter of constitutional power. Alyeska Pipeline Service Co. 
v. Wilderness Society, 421 U.S. 240, 270-71 (1975).



9

party— immune from such routine litigation expenses as 
the costs of filing, service of process, court transcripts, 
discovery sanctions, appeal bonds, and proceedings be­
fore special masters. Nothing in the Constitution, our 
federal system, or an unbroken century of judicial prac­
tice commands such an anomalous result.

In no situation are the foregoing principles more apt 
than where parties— in this case state officials represented 
by state lawyers— have been guilty of bad faith litiga­
tion. Courts have traditionally exercised their “ inherent 
power”  to control litigation by awarding attorneys’ fees 
against those who have “acted in bad faith, vexatiously, 
wantonly, or for oppressive reasons.” McCrary v. Run­
yon, 44 U.S.L.W. 5034, 5041 (U.S. June 25, 1976). With­
out the power to control such behavior, the courts are 
degraded and their constitutional function is severely 
eroded. Cf. Allen v. Illinois, 397 U.S. 337, 347 (1970).

The State of California, amicus herein, recognizes the 
anomaly of depriving federal courts of the power to regu­
late litigants’ behavior, and advances the startling pro­
posal that in injunctive suits the courts’ only regulatory 
device is the contempt power. Amicus Brief, pp. 10-11. 
A more intrusive remedy could hardly be imagined, yet 
California is correct in saying that contempt citations 
are the only alternative. While we agree that courts do 
have the power to issue contempt citations to those, even 
state officials, who litigate in “bad faith, vexatiously, 
wantonly, or for oppressive reasons,” we also believe that 
the range of sanctions and deterrents available to federal 
judges should not be limited to the one which they, un­
derstandably, are most reluctant to invoke against state 
officials.5 Having the contempt power, it follows a fortiori

5 If petitioners’ position is accepted, then of course it would be 
unconstitutional to apply to state officials the provisions of Rules 
37(a)(4) and 37(c), Fed. R. Civ. P., or Rule 38, F.R. App. P., 
i.e., no attorneys’ fees could be imposed for willful failure to make



10

that federal courts have the lesser power to award at­
torneys’ fees in cases, like this, of undisputed bad faith 
litigation.

The availability of fees against state officials who liti­
gate in bad faith has been affirmed by this Court as 
recently as four years ago. Amos v. Sims, 409 U.S. 942 
(1972), aff’g 340 F. Supp. 691 (M.D. Ala. 1972). In 
that case, the district court, having found bad faith in 
the long failure to reapportion, awarded attorneys’ fees 
against state officials who included the Governor, At­
torney General and Secretary of State. On appeal to this 
Court, those officials argued that such an award was 
“ tantamount to the award of a money judgment against 
the State of Alabama in direct violation of the doctrine 
of sovereign immunity.”  Jurisdictional Statement, p. 17. 
This Court summarily affirmed, in a decision to which it 
referred in Alyeska Pipeline Service Co. v. Wilderness 
Society, 421 U.S. 240, 270 n.46 (1975).6

discovery or willful failure to admit, nor could damages and single 
or double costs be taxed for taking a frivolous appeal. This Court, 
however, has only recently emphasized the need for a broad range 
of sanctions, “not merely to penalize those whose conduct may be 
deemed to warrant such a sanction, but to deter those who might 
be tempted to such conduct in the absence of such a deterrent.” 
National Hockey League V. Metropolitan Hockey Club, Inc., 44 
U.S.L.W. 3754, 3755 (U.S. June 30, 1976).

6 Since Edelman, four circuits have upheld awards of attorneys’ 
fees against state officials. Class V. Norton, 505 F.2d 123 (2d Cir. 
1975); Souza V. Travisono, 512 F.2d 1137 (1st Cir. 1975), vacated, 
423 U.S. 809 (1975); Thonen V. Jenkins, 517 F.2d 3 (4th Cir. 
1975) ; Bond v. Stanton, 528 F.2d 688 (7th Cir. 1976) (the instant 
case). See also Fitzpatrick v. Bitzer, supra.

Two circuits, however, have found such fee awards indistinguish­
able from the retroactive welfare payments condemned in Edelman. 
Skehan V. Board of Trustees, 501 F.2d 31 (3d Cir. 1974), vacated, 
421 U.S. 983 (1975); Jordon V. Gilligan, 500 F.2d 701 (6th Cir. 
1974), cert, denied, 421 U.S. 991 (1975). The two courts which have 
denied attorneys’ fees against state officials in reliance on Edelman 
have focused only on the fact that money is to be paid from the state 
treasury, and have ignored the distinction between direct and 
ancillary effects on state treasuries.



11

The petitioners, here approach this Court, after entry 
of judgment against them and after undisputed findings 
that they litigated in bad faith, and assert that the most 
fundamental rules, applicable in their nature to all liti­
gants, cannot touch them. Acceptance of their argument 
would destroy the meaning of Ex parte Young, hasten 
the erosion of the rights of the people of this Nation, and 
deprive the federal courts of a relatively mild but effec­
tive deterrent against bad faith litigation.

The lower courts’ orders awarding attorneys’ fees 
should be affirmed.

Respectfully submitted,

CONCLUSION

A lbert E. Jenner, Jr. 
Stephen J. Pollak

Lawyers’ Committee for

Armand Derfner 
P.O. Box 608
Charleston, South Carolina 29402

Civil Rights Under Law Robert A. Murphy 
Joel L. Selig 
Norman J. Chachkin 
W illiam E. Caldwell

Suite 520 Woodward Building 
733 - 15th Street, N.W. 
Washington, D. C. 20005

Attorneys for Amicus Curiae