Bitzer v. Matthews Brief of the NAACP Legal Defense and Educational Fund as Amicus Curiae

    I n  t h e

Supreme Qlnurt at tl|? flairs
O ctober  T e r m , 1975 

No. 75-283

F rederick  B it z e r , et al.,
Petitioners,

V.

D onald  M a t t h e w s , et al.

ON WRIT OP CERTIORARI TO THE UNITED STATES COURT OF APPEALS 
FOR THE SECOND CIRCUIT

BRIEF OF THE N.A.A.C.P.
LEGAL DEFENSE AND EDUCATIONAL FUND, INC., 

AS AMICUS CURIAE

J ack  G reenberg  
E ric  S c h n a p p e r  

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Attorneys for Amicus Curiae



I n  t h e

Court of tin? Huttrib ^tatro
O ctober T e r m , 1975 

No. 75-283

F rederick  B it z e r , et al.,

v.
Petitioners,

D onald M a t t h e w s , et al.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS 
FOR THE SECOND CIRCUIT

BRIEF OF THE N.A.A.C.P.
LEGAL DEFENSE AND EDUCATIONAL FUND, INC., 

AS AMICUS CURIAE

Interest of Amicus

The N.A.A.C.P. Legal Defense and Educational Fund, 
Inc., is a non-profit corporation, incorporated under the 
laws of the State of New York in 1939. It was formed to 
assist Negroes to secure their constitutional rights by the 
prosecution of lawsuits. Its charter declares that its pur­
poses include rendering legal aid gratuitously to Negroes 
suffering injustice by reason of race who are unable, on 
account of poverty, to employ legal counsel on their own 
behalf. The charter was approved by a New York Court, 
authorizing the organization to serve as a legal aid society.



2

The N.A.A.C.P. Legal Defense and Educational Fund, Ine. 
is independent of other organizations and is supported by 
contributions from the public. For many years its attorneys 
have represented parties in this Court and the lower courts, 
and it has participated as amicus curiae in this Court and 
other courts in cases involving many facets of the law.

Attorneys for the Legal Defense Fund have handled 
many cases involving Title YII of the Civil Eights Act of 
1964 and other problems of racial discrimination. Among 
these are three cases in this Court regarding awards of 
counsel fees in civil rights litigation. Newman v. Piggie 
Park Enterprises, 309 U.S. 400 (1968); Bradley v. School 
Board of the City of Richmond, 416 U.S. 696 (1974) ; North- 
cross v. Board of Education, 412 U.S. 427 (1973).

ARGUMENT

For the reasons set forth in the Brief for Petitioners in 
Fitzpatrick v. Bitser, No. 75-251, pp. 40-61, amicus main­
tains that Congress has the authority under section 5 of 
the Fourteenth Amendment to render a state liable to suit 
in federal court for monetary or other relief, and that Title 
VII of the 1964 Civil Rights Act, insofar as it authorizes 
awards of back pay and counsel fees against a state, is 
therefore constitutional. Even in the absence of that au­
thority, or of a statute expressly authorizing awards of 
counsel fees against a state, we urge that such awards are 
incidental to actions against state officials for injunctive or 
declaratory relief and thus fall within the exception the 
Eleventh Amendment articulated in Ex Parte Young, 209 
U.S. 123 (1908).

Although the state of Connecticut is not a formal party 
to this action, it does not claim that it is a stranger to this



3

litigation against whom no relief could run for want of 
notice or hearing. When this action was commenced against 
the individual defendants the state could have refused to 
become involved in the case, leaving the defendants to 
fend for themselves and defend it, or offer judgment, as 
they pleased. Instead, from the moment this action was 
tiled, the state chose to assume complete control over the 
defense, receiving and serving all papers, negotiating with 
the plaintiffs, and making all substantive and tactical de­
cisions. Mr. Bitzer, although the named defendant, has 
never participated in the litigation or retained his own 
counsel. The state sought to win in this case a judgment 
that would bar relief for the named plaintiffs and, by rea­
son of collateral estoppel or stare decisis, effectively pre­
clude similar actions by other plaintiffs against other state 
officials or the state itself. The state has availed itself of 
all legal procedures it wished to advance its views; if costs 
were awarded in this action against the plaintiffs, that 
money would go, not into Mr. Bitzer’s pocket, but into the 
state treasury.

The state cannot inject itself into this litigation, seizing 
control of the defense and seeking all the fruits of a legal 
victory, and yet avoid the normal responsibilities and lia­
bilities of a litigant. A non-party who has an interest in 
the outcome of litigation and who fully participates therein 
is normally deemed liable to judgment just as if he were 
a formal party. Sou front v. Compagnie des Suceries, 217 
U.8. 475, 486-87 (1910)1 “[0]ne who prosecutes or defends 
a suit in the name of another, to establish and protect his 
own right, or who assists in the prosecution or defense of an

1 Dick Press Guard Mfg. Go. v. Bowen, 229 F. 193, 196 (N.D. 
N.Y.), a f ’d, 229 F. 575 (2d Cir.) cert, denied, 241 U.S. 671 (1915) ; 
Ocean Accident & Guarantee Corp. v. Felgema.ker, 143 F.2d 950, 
952 (6th Cir. 1944) ; Eagle Mfg. Co. v. Miller, 41 F. 351, 357 
(S.D. Iowa 1890).



4

action in aid of some interest of Ms own, and who does so 
openly, to the knowledge of the opposing party, is as much 
bound by the judgment, . . .  as he would be if he had been a 
party to the record.” A state may elect to stand aloof from 
litigation against an official and to thus preserve intact any 
immunity it may enjoy; but if it chooses to join in the 
litigation and to seek to win and enjoy the benefits of a 
successful defense, it must run the same risks, including the 
possibility of an award of costs, that must be run by an 
ordinary party should that defense fail. Compare 2A 
Moore’s Federal Practice If 12.13.

It is for this reason that the federal courts have tradi­
tionally awarded costs against a state, directly or through 
its officials, when the state becomes involved in litigation 
in a federal court in its own name or on behalf of its of­
ficials. Since the Judiciary Act of 17892 the federal courts 
have been expressly empowered to award costs. Provisions 
authorizing, and at times requiring, the award of costs and 
expenses are to be found throughout the Federal Rules of 
Civil Procedure,8 the Federal Rules of Criminal Procedure,4 
the Federal Rules of Appellate Procedure,6 the Rules of 
the Supreme Court,6 and the United States Code.7 These 
rules and statutes are literally applicable to all federal 
litigation, regardless of the identity of the parties, and 
have been uniformly applied even where the party liable

21 Stat. 73, 93; Henkel v. Chicago, etc., B.B., 284 TJ.S. 444 
(1932).

3Federal Rules of Civil Procedure, Rules 30(g), 37(a)(4), 
41(d), 43(f), 54, 55(b)(1), 56(g), 65(c), 68.

4 Federal Rules of Criminal Procedure, Rule 38(a) (3).
5 Federal Rules of Appellate Procedure, Rules 7, 38, 39.
6 Rules of the Supreme Court, Rules 14, 18, 36(3), 57, 60.
7 See e.g. 28 U.S.C. §§ 1331, 1332, 1446, 1911-29, 2101(f), 2103.



5

for costs is a state or a state official. The Clerk of this 
Court taxes costs against a losing party without regard to 
the official status of that party. Costs are routinely awarded 
by this Court against (a) state officials who are the defen­
dants in federal civil actions for injunctive relief, (b) state 
officials who are the defendants in federal habeas corpus 
actions, (c) state agencies which are the defendants in 
civil actions originating in state court, and (d) states in 
criminal prosecutions originating in state courts. A list of 
the cases in which such awards were made in October 
Terms 1970-74 is set out in the Appendix to this brief.

The state in this case does not appear to deny that, as a 
general matter, the federal courts may award costs against 
states and state officials. Such awards are the normal in­
cident of a successful action for declaratory or injunctive 
relief, and their “ancillary effect on the state treasury is 
a permissible and often an inevitable consequence of the 
principle announced in Ex Parte Young.” Edelman v. 
Jordan, 415 TT.S. 651, 668 (1974). Were this Court to hold 
such awards impermissible under the Eleventh Amendment, 
it would be required to rule unconstitutional, insofar as 
they apply to states or state officials, every federal court 
rule and every provision of the United States Code au­
thorizing awards of costs.

The state officials maintain, however, that counsel fees 
cannot be included among the awardable costs. There is, 
we believe, no basis for distinguishing counsel fees from 
other items of costs, such as transcripts, printing expenses, 
filing or docketing fees, or the expenses of witnesses, ex­
perts or interpreters. Awards of counsel fees, where proper, 
have long been regarded as a part of costs. The earliest 
authority for such awards in England was contained in a 
statute adopted in 1278 providing for taxation of “costs



6

of Ms writ purchased.” 8 The first congressional enactment 
regulating the award of counsel fees treated them as an 
item of taxable costs. 10 Stat. 161 (1853); see 28 U.S.C. 
§ 1923(a). In recent years Congress has adopted more 
than a score of statutes authorizing awards of attorneys’ 
fees; in virtually every case that award was made an item 
to be included as part of the taxable costs.9 This Court has

8 Statute of Gloucester, 1278, 6 Edw. 1, e 1; Fleischman Dis­
tilling Corp. v. Maier Brewing Co., 388 U.S. 714, 717, n. 7 (1967).

9 See e.g. 5 U.S.C. § 552(a) (court may assess “attorneys’ fees 
and other litigation costs”) ; 7 U.S.C. § 210(f) (successful peti­
tioner to be allowed “a reasonable attorney’s fee to be taxed and 
collected as part of the costs of the suit” ) ; 7 U.S.C. § 499g (b) 
(successful petitioner to be allowed “a reasonable attorney’s fee 
to be taxed and collected as a part of the costs of the suit” ) ; 
15 U.S.C. § 15 (plaintiff in antitrust action to recover “the cost 
of suit, including a reasonable attorney’s fee” ) ; 15 U.S.C. §72 
(person injured by illegal importation to recover “the cost of the 
suit, including a reasonable attorney’s fee”) ; 15 U.S.C. § 77k(e) 
(court may award to prevailing party “the costs of such suit, 
including reasonable attorney’s fee”); 15 U.S.C. § 78i(e) (court 
in securities case may “assess reasonable costs, including reason­
able attorneys’ fees”) ; 15 U.S.C. § 78r(a) (court may “assess 
reasonable costs, ineluding_ reasonable attorneys’ fees” ) ; 17 U.S.C. 
§ 116 (court in patent action may award “a reasonable attorney’s 
fee as part of the costs”) ; 18 U.S.C. § 1964(c) (person injured by 
racketeering may sue and recover “the cost of the suit, including a 
reasonable _ attorney’s fee”); 20 U.S.C. §1617 (court in school 
desegregation case may allow “a reasonable attorney’s fee as part 
of the. costs” ) ; 33 U.S.C. § 1365(d) (court may award “costs of 
litigation (including reasonable attorney and expert witness 
fees)” ) ;  33 U.S.C. § 1415(g) (4) (court may award “co'sts of 
litigation (including reasonable attorney and expert witness 
fees)”) ;  42 U.S.C. § 1857h-2(d) (court may award “costs of 
litigation (including reasonable attorney and expert witness 
fees)” ); 42 U.S.C. §2000a-3(b) (court in public accommodations 
case may allow “a reasonable attorney’s fee as part of the costs” ) ; 
42 U.S.C. § 2000e-5(k) (court in employment discrimination case 
may allow “a reasonable attorney’s fee as part of the costs” ); 
42 U.S.C. § 4911(d) (court may award “costs of litigation (in­
cluding reasonable attorney and expert witness fees)”) ; 45 U.S.C.
§ 153 (p) (court in Railway Labor Act ease must allow prevailing 
employee “a reasonable attorney’s fee, to be taxed and collected 
as part of the costs of the suit” ) ; 46 U.S.C. § 1227 (successful



7

also recognized a variety of circumstances in which counsel 
fees can be awarded without express statutory authority, 
but these awards too have been treated as “a matter of 
costs.” Trustees v. Greenough, 105 U.S. 527 (1882).

The limitation of the Eleventh Amendment clearly does 
not extend to an award of costs, and any item may consti­
tutionally be included in the costs taxed which is in fact 
an expense of the litigation. To say that all actual expenses 
may constitutionally be made part of costs is not, of course, 
to suggest that Congress or the courts are obligated to 
make such awards. Under the applicable federal rules and 
statutes some such expenses are taxable and others are 
not; Congress “has the power and judgment to pick and 
choose among its statutes and to allow attorneys’ fees under 
some but not others.” AlyesJca Pipeline Service Co. v. 
Wilderness Society, 44 L.Ed. 2d 141, 157 (1975). But coun­
sel fees, like printing, transcripts or filing costs, are un­
questionably an incidental expense of the litigation; when 
Congress, or the courts exercising traditional equity powers, 
authorize or order awards for such expenses, the Eleventh 
Amendment does not afford to the states any protection 
from the responsibilities of ordinary litigants to comply 
with such awards.

plaintiff to recover “the cost of suit, including a reasonable attor­
ney’s fee”) ; 47 U.S.C. § 206 (court to award “reasonable counsel 
or attorney’s fee” which “shall be taxed and collected as part of 
the costs in the case”) ; 49 U.S.C. § 8 (court to award “reasonable 
counsel or attorney’s fee” which “shall be taxed and collected as 
part of the costs of the case”) ; 49 U.S.C. § 16(2) (court to award 
“reasonable attorney’s fee, to be taxed and collected as part of the 
costs of the suit” ) .; 49 U.S.C, § 908(b) (court to award “a rea­
sonable counsel or attorney’s fee” which “shall be taxed and col­
lected as part of the costs in the case.” )



8

CONCLUSION

For these reasons the judgment of the court of appeals 
in No. 75-283, should be affirmed.

Respectfully submitted,

J ack  G reenberg  
E ric  S c h n a ppe r ,

Suite 2030
10 Columbus Circle
New York, New York 10019

Attorneys for Amicus Curiae



APPENDIX



la

APPENDIX

This Appendix sets forth cases in which the Clerk of the 
Supreme Court has awarded costs against a state, or a 
state official, during- October Terms, 1970-74, With regard 
to awards against state officials, the list is limited to actions 
for injunctive relief against the defendant in his official 
capacity, in which the action was defended by the state 
and where, as a consequence, there was no suggestion that 
the costs would be paid by the defendant personally. Costs 
have also been awarded in damage actions against state 
officials, e.g. Scheuer v. Rhodes, No. 72-914; these cases, 
however, are not included, since, although the costs are 
in fact usually paid by the state, the defendant officials 
were personally liable.

(a) Civil actions for injunctive relief against state offi­
cials, originating in federal court, in which costs were 
awarded to the plaintiff:

Connor v. Waller, No. 74-1509 (Defendant was the 
Governor of Mississippi);
Meek v. Pittinger, No. 73-1765 (Defendants were 
the Secretary of State and Treasurer of Penn­
sylvania) ;
Chapman v. Meier, No. 73-1406 (Defendant was the 
Secretary of State of North Dakota) ;
Hagans v. Levine, No. 72-6476 (Defendant was the 
Commissioner of the New York State Department 
of Social Services);
Communist Party of Arizona v. Whitcomb, No. 72- 
1040 (Defendant was the Secretary of State of 
Indiana and the members of the Indiana State 
Election Board) ;



2a

Appendix

Christian v. New York Department of Labor, No. 
72-5704 (Defendants included officials of the New 
York Department of Labor);
Committee for Public Education v. Nyquist, No. 
72-694 (Defendant was the New York Commis­
sioner of Education);
Norwood v. Harrison, No. 72-77 (Defendants were 
the members of the Mississippi State Textbook 
Purchasing Board);
Papish v. Board of Curators of University of Mis­
sissippi, No. 72-794 (Defendants were officials of 
the state university) ;
Healy v. James, No. 71452 (Defendant was the 
President of Central Connecticut State College);
Fuentes v. Shevin, No. 70-5039 (Defendant was 
the Attorney General of Florida) ;
Taylor v. McKeithen, No. 71-784 (Defendant was 
the Governor of Louisiana);
Townsend v. Swank, No. 70-5021 (Defendant was 
the Director of the Illinois Department of Public 
Aid).

(b) Civil Actions for injunctive or monetary relief, 
against a state or state official, originating in state court, 
in which costs were awarded to the plaintiff:

Austin v. New Hampshire, No. 73-2060;
Mescalero Apache Tribe v. Jones, No. 71-738;
McClanahanv. Arizona State Tax Commission, No. 
71-834;



3a

Appendix

Evco v. Jones, No. 71-857;
Mats v. Arnet, No. 71-1182;
Bonnelli Cattle Corp. v. Arizona, No. 72-397.

(c) Habeas corpus actions against state officials, originat­
ing in federal court, in which costs were awarded to the 
petitioner:

Francisco v. Gathright, No. 73-5768;
Robinson v. Neil, No. 71-6272;
Peters v. Kiff, No. 71-5078;
Loper v. Beto, No. 70-5388;
Humphrey v. Kady, No. 70-5004;
Morrissey v. Brewer, No. 71-5103.

(d) Criminal prosecutions arising in state court in which 
costs were awarded to the defendant:

Brown v. Illinois, No. 73-6650;
Faretta v. California, No. 5772;
Herring v. Neiv York, No. 73-6587;
Bigelow v. Virginia, No. 73-1309;
Drepe v. Missouri, No. 73-6038;
Antoine v. Washington, No. 73-717;
Taylor v. Louisiana, No. 75-5744;
Jenkins v. Georgia, No. 73-557;
Spence v. Washington, No. 72-1690;
Codispoti v. Pennsylvania, No. 73-5615;



4a

Appendix

Davis v. Alaska, No. 72-5794; 
Alexander v. Virginia, No. 71-1315; 
Roaden v. Kentucky, No. 71-1134; 
Chambers v. Mississippi, No. 71-5908; 
Furman v. Georgia, No. 69-5003; 
Jackson v. Georgia, No. 69-5030; 
Branch v. Texas, No. 69-5031;
Turner v. Arkansas, No. 71-1309; 
Brooks v. Tennessee, No. 71-5313; 
Jackson v. Indiana, No. 70-5009; 
Columbo v. New York, No. 71-352; 
Smith v. Florida, No. 70-5055;
Rale v. Washington, No. 71-247; 
Alexander v. Louisiana, No. 70-5026; 
Stanley v. Illinois, No. 70-5014;
Camp v. Arkansas, No. 70-353; 
Santebello v. New York, No. 70-98.



MEILEN PRESS IN C  — N. Y. C. 219