Plaintiffs' Opposition to Defendants' Motion to Alter or Amend Judgment

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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF MISSISSIPPI 

WESTERN DIVISION 

  

DELORES NORWOOD, et al., 

Plaintiffs, 

Ye NO. WC 70-53-K 

D. 1... HARRISON, SR., et al,, 

Defendants. 

  

PLAINTIFFS' OPPOSITION TO DEFENDANTS' 

MOTION TO ALTER OR AMEND JUDGMENT 

Plaintiffs Delores Norwood, et al., oppose defendants’ 

motion to alter or amend judgment, filed December 14, 1978, for 

the following reasons: 

1. Doctrines of res judicata and law of the case bar 
  

relitigation of the question of interest on the attorney's fees 

award. This Court's order of March 13, 1978, denied defendants' 

previous motion to amend judgment on interest on the award of 

fees and costs, and defendants did not appeal the denial. 

2. Defendants' objection to interest on the award of 

attorney's fees as costs also ignores authoritative and express 

legislative history of the Civil Rights Attorney's Fees Awards 

Act of 1976, 42 U.S.C. § 1988. 

The appropriate standards, see Johnson v. 

Georgia Highway Express, 488 F.2d 714 (5th 

Cir. 1974), are correctly applied in such 
cases as ... Davis v. County of Los Angeles, 

  

  

  

  

 



  

8 EPD ¢q 9444 (C.D. Cal. 1974) ... These cases 

have resulted in fees which are adequate to 

attract competent counsel, but bh do not 

produce windfalls to attorneys .= 

The judgment in Davis, a Title VII action, plainly provided 

that: "The payment to plaintiffs' counsel shall be made within 

thirty days of the date of entry of this judgment. Interest 

shall not begin to accrue if Defendant County of Los Angeles 

makes the said payment within thirty days after entry of this 

Judgment Re Attorneys' Fees," 8 EPD at p. 5049. 

3. Carpa, Inc. v. Ward Foods, Inc., 567 2.24 13156 (5th 
  

Cir. 1978), an antitrust case, simply has no application here, 

2/ 
and the Fifth Circuit so held. Parker v. Califano, 443 F. 

  

Supp. 789, 794 (D. D.C. 1978), a Title VII action against a 

federal agency, is inapplicable because this is not an action 

against the United States where the rule is that interest is 

proscribed unless expressly allowed. The rule as to civil 

rights cases against private defendants and state or local govern- 

ment defendants is different, see, e.g., Pettway v. American Cast 
    

Iron Pive Co., 494 7,28 211, 263 (5th Cir. 1974) {interest on 
  

  

l/ S. Rep. No. 94-1011, 94th Cong., 2d Sess., p. 6 (1976), 

published in U.S. Code Cong. & Admin. News, 94th Cong., 2d Sess. 

1976, vol. 5 at p. 5913. 

2/ "Congress could, of course, provide that attorneys’ 

fees bear interest. Our holding that attorneys' fees 

in antitrust cases are not to bear interest implies 

nothing whatsoever about the propriety of interest on 

attorneys' fees authorized by other statutes. The 

language and history of a given statute might suggest 

that the public purposes underlying the statutory 

authority for attorneys' fees would be materially 

advanced by allowance of interest, and the absence of 

a treble damage provision which complements the attor- 

neys' fee provision would also require consideration." 

567 F.2d at 1323 (emphasis added). 

  

  

  

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backpay required in Title VII action); Davis v. City of Ios 
  

Angeles, supra; cf. Hutto v. Finney, p.S. , 57 L,,E4.24 

3/ 
522, 538-539 (1978). 

  
  

4. With respect to striking that part of the December 4th 

judgment dealing with payment out of the State of Mississippi's 

Treasury, Hutto v. Finney, supra, states the rule for 42 U.S.C. 
  

§ 1988, which the Supremacy Clause makes binding, that 

... Congress recognized that suits brought 

against individual officers for injunctive 

relief are for all practical purposes suits 

against the State itself. The legislative 

history makes it clear that in such suits 

attorney's fee awards should generally be 

obtained, "either directly from the official, 

in his official capacity, from funds of his 

agency or under his control, or from the 

State or local government (whether or not the 

agency or government is a named party).”" 
S. Rep. No. 94-1011, p. 5 (1976). 

57 L.Ed.2d at 540. The Fifth Circuit's affirmance of this 

Court's Rule 70 order in Gates v. Collier, 70 F.R.D. 341 (N.D. 
  

Miss. 1976), affirmed, 559 F.2d 241 (5th Cir. 1977), and Judge 
  

Rubin's persuasive discussion in Gary W. v. State of Louisiana, 
  

441 F. Supp. 1121 (E.D. La. 1977), are additional authority. 

5. Last, this Court stated in its final judgment of 

January 3, 1978, "further delay in the allowance of attorney 

fees is contrary to the public interest and to the principles of 

justice and equity." It is now almost a year later. 

  

3/ "Just as a federal court may treat a State like any 
other litigant when it assesses costs, so also may Con- 

gress amend its definition of taxable costs and have the 

amended class of costs apply to the States, as it does 

to all other litigants,.without expressly stating that 

it intends to abrogate the States' Eleventh Amendment 

immunity." 

57 L.EA4.24 at 538.       
 



  
    

CONCLUSION 
  

Defendants' motion to alter or amend dated December 14, 

1978, should be denied. 

Respectfully Sd he 

   
      

A 
  

JACK GREENBER 
BILL LANN LEE 

Suite 2030 

10 Columbus Circle 

New York, New York 10019 

FRED L. BANKS, JR. 

538-1/2 North Farish Street 

Jackson, Mississippi 39202 

Attorneys for Plaintiffs 

CERTIFICATE OF SERVICE 
  

Undersigned counsel certifies that copies of the foregoing 

plaintiffs' opposition to defendants' motion to amend judgment 

were served on counsel of record by placing copies in the U. S. 

mail, postage prepaid, first class mail, this 18th day of 

December, 1978, addressed to: 

Hon. Peter M. Stockett, Jr. 

Office of the Attorney General 

State of Mississippi 

Post Office Box 220 

Jackson, Mississippi 39205 ; vv 

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Bill Lann Lee 

Attorney for Plaintiffs [||4e5960f8-4269-4a8b-a850-01f585435a98||]