Plaintiffs'-Appellees Supplemental Memorandum

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NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 

10 Columbus Circle, New York, N.Y. 10019 » (212) 586-8397 i) 

  

September 9, 1977 

Mr. Edward W. Wadsworth, Clerk 
U.S. Court of Appeals 
Fifth Circuit 
600 Camp Street, Rm. 102 
U.S. Court of Appeals Courthouse 
New Orleans, Loulsiana 70130 

RE: Norwood v. Harrison 

Fifth Cir. No. 76-1865 
  

Dear Mr. Wadsworth: 

Enclosed find for filing the original and three copies 
of plaintiffs'-appellees' Supplemental Memorandum and certificate 

of service. 

Please excuse the delay in this filing. ' The notice 
of supplemental briefing arrived in my office the day after I began 
ny vacation. Moreover, several other briefs in my cases are now 

immediately due and the delay was unavoidable. 

The memorandum is, nevertheless, filed more than a month 

in advance of oral argument and no prejudice to the appellants can 

result. 

CE iE Ak a 
R. Leventhal 

cc: Peter Stockett, "Esg. 

MRL/eea 

Contributions are deductsble for U.S. income tax purposes 

 



  

L\ No | IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

No. 76-1865 

  

DELORES NORWOOD, et al., 

Plaintiffs-Appellees 

VY. 

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 

  

JACK GREENBERG 

MELVYN R. LEVENTHAL 

; 10 Columbus Circle 
Suite 2030 
New York, New York 

1001¢ 

FRED L. BANKS, JR. 

538% 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 

Y. 

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 Alyeska's 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 attorneys' 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.l), in their 

official capacities. (A.l) hyd 

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. 

  

i/ 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). 

  

  

-- 

 



  

4 4 

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 

subledt 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’ 

  

x/ 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 7.28 152, 155 (7h Cir. 1977). 

  

  

  

2/ cunningham v, Grayson, 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 
{(Ww.D. N.Y. 1976). 

  

 



    

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).2/ 
  

Ji: 

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 1976,2/ 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 vV. 
  

  

Hutto, supra. 
  

  

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

  

  

  
  

  

24/ 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 
P.24 at 742, n.5. 

  

 



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 attorneys' fees against state defendants sued 

under §1983. 

  

2/ "As with cases brought under 20 U.S.C. §l1617, 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 attorneys' 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 
...0f course, the llth 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) 
  

-5- (footnotes continued on next page) 

 



  

Vv 

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 llth 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) 
"[Wlhile 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). 
  

- 

 



    

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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