Norwood v. Harrison Plaintiffs'-Appellees' Supplemental Memorandum

    UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

IN THE

No. 76-1865

DELORES NORWOOD, et al.f
Plaintiffs-Appellees

V.
D.L. HARRISON, SR., et al.

Defer.dants-Appellants.

On Appeal from the United States District Court 
for the Northern District of Mississippi

PLAINTIFFS 1-APPELLEES' 
SUPPLEMENTAL MEMORANDUM

JACK GREENBERG 
MELVYN R. LEVENTHAL

10 Columbus Circle 
Suite 2030 
New York, New York 

10019
FRED L. BANKS, JR.

538^2 North Farish St. 
Jackson, Mississippi 

39202
September, 1977 Attorneys for Plaintiff- 

Appellees



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

No. 76-1865

DELORES NORWOOD, et al.,
Plaintiffs-Appellees

V.
D.L. HARRISON, SR., et al.

Defendants-Appellants.

On Appeal from the United States District Court 
for the Northern District of Mississippi

PLAINTIFFS'-APPELLEES'
SUPPLEMENTAL MEMORANDUM

I
The district court identified three poten­

tial obstacles to an award of attorneys' fees: the 
Eleventh Amendment, Alyeska, and the "person" require­
ment of §1983. It found attorneys' fee and costs 
"ancillary and prospective" and hence not barred by 
the Eleventh Amendment; it found Alyeska1s require­
ment of an express Congressional authorization for a



fee award fully satisfied by §718; finally, it held that 
Congress, in enacting §718, "unmistakably chose to abandon" 
the "person" requirement of §1983 for the "specific remedy 
[of attorneys1 fees] to achieve Fourteenth Amendment com­
pliance in the field of elementary and secondary education."
410 F. Supp. at 143-44. Judge Keady therefore entered judg­
ment against defendants, who had been sued "as members of the 
Mississippi State Textbook Purchasing Board," (A.1), in their 
official capacities.(A.l) ^

Defendants-appellants challenge these three holdings. 
They also argue that the State of Mississippi is an unjoined 
indispensable party and that sovereign immunity, aside from 
the Eleventh Amendment variety, shields these defendants from 
judgment.

The law in this area is fast breaking; indeed, this 
appeal may be fully resolved on the basis of developments occur­
ring after Judge Keady's decision and the last brief in this case.

^  The district court also held that fee awards under §718
do not turn on evidence of bad faith, citing Northcross v. 
Board of Education, 412 U.S. 427 (1973).

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II
The Eleventh Amendment

Fitzpatrick v. Bitzer, 427 U.S. 445, 453-56 (1976) 
holds that • "when Congress has passed specific legislation 
pursuant to Section 5 [of the Fourteenth Amendment] to en­
force the rights guaranteed by the Fourteenth Amendment... 
monetary relief recoverable directly from the state treasury 
will be allowed;" i.e., such legislation is insulated from 
Eleventh Amendment attack. Jagnandan v. Giles, 538 F.2d 
1173, 1184-85 (5th Cir. 1976). —^ An action to recover 
attorneys' fees under §718, which was enacted pursuant to 
Section 5 of the Fourteenth Amendment, 2/ is accordingly not
subject to Eleventh Amendment challenge.

Subsequent to defendants' first brief in this appeal, 
Congress in 1976 enacted legislation, also pursuant to Section 
5 of the 14th Amendment, providing for awards of attorneys'

■i/ Appellants reliance on Jagnandan is misplaced: that case was 
not brought pursuant to a Section 5-14th Amendment statute, 
could therefore not benefit from Fitzpatrick and for that 
reason led to a holding that plaintiff could not obtain a 
money judgment against state defendants. See also, Jordan v. 
Trainor. 551 F.2d 152, 155 (7th Cir. 1977).

^  Cunningham v. Gravson. 541 F.2d 538, 543 (6th Cir. 1976); 
Oliver v. Kalamazoo Board of Education, 73 F.R.D. 30, 36-37 
(W.D. Mich. 1976); Arthur V. Nyquist, 426 F. Supp. 194, 196-97 
(W.D. N.Y. 1976).

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fees in civil rights cases generally. This court has now held 
that:

"The combination of Fitzpatrick and the 
Civil Rights Attorney's Fees Awards Act 
of 1976 establishes that the Eleventh 
Amendment is no longer a bar to the award 
of attorney's fees against a state in 
actions under the statutes enumerated in 
[the 1976] Act.Rainey v. Jackson State College, 551 F.2d 
672, 675. (5th Cir. 1977) .V

III
Alyeska

The district court correctly held that §718 applies 
to all cases seeking "Fourteenth Amendment compliance in the 
field of elementary and secondary education," and not merely 
to typical school desegregation cases. The enactment of the 
Civil Rights Attorney's Fees Award Act of 1976,-^/ which clearly 
applies to any §1983 action, provides a second express Congress­
ional authorization for a fee award in this case. Rainey, supra; 
Stanford Daily v. Zurcher, 550 F.2d (9th Cir. 1977); Finney v. 
Hutto, supra.

—/ Other circuits have reached the same result. Martinez 
Rodriquez v. Jimenez, 551 F.2d 877 (1st Cir. 1977);
Finno v."Hutto, 548~F.2d 740 (8th Cir. 1977); Cunningham v.
Grayson, supra.

4/ The 1976 statute applies to cases pending on appeal at the 
time of its enactment. Rainey, supra,551 F.2d at 675-76.
The Eighth Circuit concurs. Finney v. Hutto, supra, 548 
F.2d at 742, n.5.

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IV
The "Person" Requirement 
______ of §1983.__________

§718, by its very terms, provides for the entry 
of judgment against state defendants. The legislative history 
of the 1976 attorneys' fees statute clearly states that judg­
ments against state defendants are contemplated.-^/ This Court, 
and others, have entered or upheld judgments for fees against 
state defendants in §1983 actions: Rainey v. Jackson State 
College, supra, was a §1983, teacher dismissal case against 
the State Board of Trustees of Institutions of Higher Learning; 
Finney, supra, and Martinez Rodriquez, supra, were both §1983 
actions against state officials resulting in fee awards under 
the 1976 statute. See also, Gary W. v. State of La., 429 F. 
Supp. 711, 713-14 (E.D.La. 1977). The district court is quite 
correct in holding that Congress has determined to authorize 
judgments for attorneys1 fees against state defendants sued 
under §1983.

1/ "As with cases brought under 20 U.S.C. §1617, the Emergency 
School Aid Act of 1972, defendants in these cases are often 
State or local bodies or State or local officials. In such 
cases it is intended that the attorneys1 fees like other 
items of costs, will be collected either directly from the 
official in his offficial 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)."
Committee on the Judiciary Report, p.5. (Senate)
"The greater resources available to governments provide an 
ample base from which fees can be awarded to the prevailing 
plaintiff in suits against governmental officials or entities 
...Of course, the 11th Amendment is not a bar to the awarding 
of counsel fees against state governments. Fitzpatrick v. 
Bitzer..."
Committee on the Judiciary Report, p.7. (House)

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V

Defendants' argument that the State of Mississippi 
is an indispensable party is frivilous: as we have already
argued, the fee award will derive from the separate fund of 
the Textbook Purchasing Board which is by statute, under the 
exclusive control of these defendants.

Defendants' argument that the State of Mississippi 
is immune from suit under a sovereign immunity principle 
distinct from that contemplated by the 11th Amendment is answered 
by Fitzpatrick:

"The prohibitions of the Fourteenth 
Amendment are directed to the States, 
and they are to a degree restrictions 
of State power. It is these which 
Congress is empowered to enforce, and 
to enforce against State action, how­
ever put forth, whether that action be 
executive, legislative, or judicial.
Such enforcement is no invasion of State 
sovereignty.
427 U.S. at 454. (emphasis added). See 
also, Mr. Justice Brennan, concurring 
in judgment, 427 U.S. at 457-58.

(continued)
^  ”[W]hile damages are theoretically available under the 

statutes covered...it should be observed that, in some 
cases, immunity doctrines and special defenses, avail­
able only to public officials, preclude or severely limit 
the damage remedy. Consequently, awarding counsel fees 
to prevailing plaintiffs in such litigation is particularly 
important and necessary if federal civil and constitutional 
rights are to be adequately protected.
Committee on Judiciary Report, p.9 (House).

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Under defendants' reasoning every civil rights 
statute enacted by Congress providing for a judgment against 
the State of Mississippi is "unconstitutional" as an invasion 
of "state sovereignty."

Respectfully submitted.

MELVYN R. LEVENTHAL 
JACK GREENBERG

10 Columbus Circle 
Suite 2030
New York, New York 10019

CERTIFICATE OF SERVICE

This is to certify that the undersigned has on this
day caused to be mailed through the United States Mail postage
prepaid, one copy of Plaintiffs'-Appellees' Supplemental
Memorandum to the following:

Peter M. Stockett, Jr., Esq.
Special Assistant Attorney General 
Post Office Box 220 
Jackson, Mississippi

MELVYN R. LEVENTHAL 
September 9, 1977

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