Brief of Defendants-Appellants in Opposition to Motion for Summary Affirmance

     [||d3ad053b-a1f2-4c6e-88cc-22ee0cfab9f2||] IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

NO. 76-1865 

  

DELORES NORWOOD, ET AL 
PLAINTIFFS-APPELLEES 

Vv. 

D. L. HARRISON, SR., ET AL 
DEFENDANTS-APPELLANTS 

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

  

BRIEF OF DEFENDANTS-APPELLANTS IN 
OPPOSITION TO MOTION FOR SUMMARY AFFIRMANCE 

  

A. F. SUMMER, ATTORNEY GENERAL 
STATE OF MISSISSIPPI 

PETER M. STOCKETT, JR. 
SPECIAL ASSISTANT ATTORNEY GENERAL 

POST OFFICE BOX 220 
JACKSON, MISSISSIPPI 

ATTORNEYS FOR DEFENDANTS-APPELLANTS 

 



  

INDEX 
  

STATEMENT OF THE CASE 
AND PROCEDURAL HISTORY 

ARGUMENT I 4 wien inn 

ARGUMENT II Jie ie oe 

ARGUMENT TIX . seis 

CONCLUSION. , wl vs + 

CERTIFICATE "vis ov 'v.'» 

PAGE 
  

 



  

TABLE OF CASES 
  

loan v. Jordan, 415 U.S. 651, 94 8. Ct, 
¥347239 1. . BR.2A 662. i. aang nu 

Fitzpatrick v. Bitzer, U.S. y 96 8. Ct. 
2666, 49 L. Ed.2d (1976) ov viv au. 

ttt v. City of Jacksonville, 5 Cir. 1951 
IBS Pid d23 i, ih nian nie a ah ya 

dagnandan vv. 0ilea, 178-3867  . . . . J.P 

on v. California Adult Authority, (9 Cir. 
YO7005423 PP. 128 1326: . a ih aris aa ea 

OTHER AUTHORITIES: 
  

§718 of the Emergency School Aid Act (20 U.S.C. 
B17) ee ode ohh ir ee ey EL, 

21. 

PAGE 

10, 11 

 



    

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 

  

BRIEF OF DEFENDANTS-APPELLANTS IN 
OPPOSITION TO MOTION FOR SUMMARY AFFIRMANCE 

  

Defendants oppose the motion of plaintiff-appellees 

for summary affirmance, pursuant to Rule 21 of the rules of 

this Court, and also oppose the alternative motion, pursuant 

to Rule 18, to assign this appeal to the summary calendar.  



  

In the event that this Court should decide to dispose 

of this case in any summary manner or fashion, defendants 

move the Court to grant summary reversal of the judgment 

of the District Court from which this appeal is taken. 

Defendants submit that the legal and constitutional 

issues involved in this appeal are such that this Court 

should not decide them without full briefing and oral argu- 

ment. 

 



  

RO NRE 

STATEMENT OF THE CASE 
AND PROCEDURAL HISTORY 
  

The statement of the case and the procedural history 

is set forth in the brief for defendant-appellants previously 

filed in this Court on pages 3-7, inclusive thereof, and 

is incorporated herein by reference. 

ARGUMENT TI 
  

The principal point made by plaintiff-appellees in 

their brief accompanying their motion for summary affirmance 

is that the decision of the Supreme Court of the United States 

in the case of Fitzpatrick v. Bitzer, 44 L.W. 5120 (June 28, 

1976) is dispositive of this appeal and mandates affirmance. 

For the reasons to be hereinafter stated, defendants 

strongly disagree with plaintiffs. We believe that the 

decision in Fitzpatrick mandates the reversal of the judgment 

of the District Court awarding attorneys' fees and costs 

to be paid with funds of the State of Mississippi. 

The Supreme Court held in Fitzpatrick that Congress 

has the constitutional authority, pursuant to the power vested 

in it by §5 of the Fourteenth Amendment to enforce the provisions 

of the amendment by appropriate legislation, to provide that 

persons might bring suit in the Federal Courts against States 

or State agencies, and receive awards for back pay and attorneys’ 

 



FETS NBR RR RT ET ORT 

         The statute under consideration      

    

   
   

  

   
    
   

  

     
   

    

     
   

    
    

     
   

    

fees in appropriate cases. 

in Fitzpatrick was Title VII of the Civil Rights Act of 1964 

(42 U.S.C. §§2000e, et seg.) As amended by Congress in 

1972, this statute provides in clear, explicit and unambiguous 

language that the United States District Courts shall have 

Jurisdiction of suits brought against states alleging a 

violation of rights granted and secured by said Title VII. 

As the Supreme Court noted in Footnote 2 of its opinion in 

Fitzpatrick: 

"As relevant here, the definition of 
'person' in §701(a) of the 1964 Act, 78 Stat. 
253, 42 U.S.C. §2000e(a), was amended by §2 

(1) of the Equal Employment Opportunity Act 
A of 1972 (hereinafter the 1972 Amendments), 

86 Stat. 103, 42 U.8.C. §2000=e(a) (1970 ed., 
Supp. IV), to include "governments, govern- 
mental agencies, [and] political subdivision." 

'The express exclusion of "a State or 
political subdivision thereof'" provided in 
§701(b) of the former was stricken by §2(2) 

; of ithe latter, 86 Stat. 103, 42 U.S5.C.§2000e 
lb) 541970 ed. , Supp. IV. Section 2 (5): 0f the 
1972 Amendments, 86 Stat. 103, 42 U.S.C. 
§2000e(f) (1970 ed., Supp. IV), amended §701 
(£) (1970 ed., Supp. IV), amended §701 of the 
1964 Act, 42 U.S.C. §2000e (f), to include 
within the definition of 'employee' those 
individuals 'subject to the civil service laws 
of a State government, governmental agency or 

political subdivision.’ 

The 1972 Amendments retained the right of 
an individual aggrieved by an employer's unlaw- 
ful employment practice to sue on his or her 

1 own behalf, upon satisfaction of the statutory 

] procedural prerequisits, and made clear that    Ee 

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that right was being extended to persons 
aggrieved by public employers. See 1972 
Amendments, §4 (a), 86 Stat. 104, 42 U.S.C. 
§52000e~-5 (a)~{(g). (1970 ed., Supp. 1V. 

Thus, it is clear that Title VII of the Civil 

Rights Act of 1964, as amended, is a jurisdictional statute 

which provides that States and State agencies may be sued 

for damages in Federal Courts on account of discrimination 

in employment, and the Federal Courts are thereby vested 

with jursidiction to award such money judgment for damages 

and attorneys' fees. See 42 U.S.C. §§2000e-5 (g) and 

§§2000e-5 (k). 

The statute involved in the case sub juduce is of 

a completely different character, §718 of the Emergency School 

Aid Act (20U.S.C.1617) is not a jurisdictional statute which 

explicitly authorizes a suit against a State or against a 

State agency or government. This statute provides: 

"Upon entry of a final order by a court 
of the United States against a local educa- 
tional agency, a State (or any agency thereof) 
or the United States (or any agency thereof), 
for failure to comply with any provision of 
this chapter of for discrimination on the basis 
of race, color, or national origin in violation 
Of Title VI of the Civil Rights Act of 1964, 
or the Fourteenth Amendment to the Constitution 
of the United States as they pertain to elemen- 
tary and secondary education, the court, in its 
discretion, upon a finding that the proceedings 
were necessary to bring about compliance, may 
allow the prevailing party, other than the 
United States a reasonable attorneys' fee as 
part of the costs.”   

TS Cg ORR



    
I RE RT TT ST TG I I RS A ES Ls I —_ . TT —_——_—— BA RB EE i A TF WR Te) es a Js a = EE CRA REC AR Sn he 5 

Section 718 is not a jursidictional statute. It 

simply provides that the Federal Court may, in its discretion 

grant an award of attorneys' fees in cases in which the 

Federal Court has obtained jurisdiction of a state or 

any agency thereof. It does not vest jurisdiction in the 

Federal , to entertain a suit against a state or any 

agency thereof. Section 718 is a remedial statute, which 

authorizes the awarding of attorneys' fees against a 

state where jurisdiction exists to do so; but it does not 

confer such jurisdiction. Some states have modified their 

laws on soveriegn immunity to provide that persons may, 

in certain circumstances, bring suit against a state or 

a state agency. In such cases, §718 would apply, and 

would provide for the awarding of attorneys' fees. The State 

of Mississippi has not amended its statutes pertaining to 

sovereign immunity in such a manner. 

Defendants have discussed in their brief previously 

filed (pages 23-25) the legislative history and background 

of the adoption of §718. The Mondale proposal provided 

that Congress should appropriate the sum of Fifteen Million 

Dollars ($15,000.000) to pay for these attorneys' fees. 

This proposal was rejected by a vote of the Senate, and 

Senator Cook revised this proposal to provide that the party should  



    
pay the fees. The committee reports and the Senate debates 

shed very little light on the intent of Congress in enacting 

this legislation. Counsel for defendants can find nothing 

in the legislative history indicating an intent to waive 

or abrogate the state's immunity to suit or judgment. 

Plaintitt-agpelless correctly state in their brief 

(Page 4) that Fitzpatrick held that waiver of the state's 

immunity is predicated upon a congressional intent to "abrogate 

the immunity conferred by the Eleventh Amendment". The 

Supreme Court found such congressional intent manifest in 

the Civil Rights Ack Of 1964. It is totally lacking in §718 

of the Emergency School Aid Act. 

This court has recently addressed the issue of the 

State of Mississippi's immunity to suit in the context of 

an effort to recover from the state excess tuition payments 

which had been held to have been unconsitutionally extracted 

from plaintiffs. See Jagnandan v. Giles, $#74-3467, decided 

De ianbon 20, 1976. In Jagnandan, supra, this Court carefully 

 nidered the controlling case San in this area, including 

Edelman v. Jordan, 415 U.S. 651,94 S.Ct. 1497, 39:1... E4.24 

662 and Fitzpatrick v. Bitzer, supra. This Court held in 

Jagnandan that, since there was no Federal statute explicitly 

authorizing the State of Mississippi, or Mississippi State 

University, to be sued, that Edelman, not Fitzpatrick, was  



  

controlling. In explicating the purpose of the Eleventh 

Amendment in Jagnandan, this Court said: 

"The Eleventh Amendment was fashioned 
to protect against federal judgments requiring 
payment of money that would interfere with 
the states fiscal autonomy and thus its poli- 
tical sovereighty. Retroactive monetary relief 
for the constitutional violations here would 
have just that effect.23" 

25 see generally Note, Attorneys' Fees 
and the Eleventh Amendment, 88 Harv.L.Rev. 
1875, 1877-1882 (1975). 

In reconciling the holdings of the Supreme Court 

in Edelman and Fitzpatrick and applying them to circumstances 

in Jagnandan, this Court made the following pronouncement: 

bs "Tn its most recent decision on the Eleventh 

Amendment, the Supreme Court in Fitzpatrick v. 
Bitzer, U.S. 986 S.Ct, 2666, 49 L.ED.24 

  

(1976) left unquestioned its holding in Edelman 
v. Jordan. Although Fitzpatrick permitted recovery 
of retroactive retirement benefits wrongfully with 
held from plaintiffs on the basis of sex discrimi- 
nation, that case is not controlling. Different 
from the case at bar was the presence in Fitz- 
patrick of Federal legislation authorizing federal 
courts, under Title VII, to award money damages 
in favor of private individuals and against a: 
state found to have discriminated in employment 
on the basis of race, religion, color, sex or 

national origin, U.8. at °°, 96 8. Ct. 2666, 
See 42 U.S.C.A. §2000e-2(a). This legislation 
had been passed pursuant to §5 of the Fourteenth 
Amendment. Similarly in Edelman there was no 
express congressional legislation. Thus Fitzpatrick 
found a situation wholly unpresent in Edelman. 
The Court in Fitzpatrick indicated that without 
this particular legislation the case would be 

governed by Edelman. . | 

 



  

H 
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it vy 

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fs 

For reasons which have been stated, ante, defendants contend 

that '§718, unlike Title VII of the Civil Rights Act of 1954, 

does not grant the Federal Courts jursidiction to entertain 

a suit against the state or one of its agencies. For that 

reason, Edelman not Fitzpatrick, should control the case 

sub juduce,. just as in Jagnandan. 

 



  

IT. 

The brief for plaintiff-appellees maintains that 

the contention of defendants of §718 of the Emergency School 

Aid Act (20 U.S.C. 1617) should not apply unless defendants 

have engaged in "purposeful action with actual or constructive 

knowledge of its discriminatory impact" is without sound 

basis or merit. Defendants set out their position on this 

part of the argument on their brief previously filed in this 

Court at pages 26-29. For the sake of avoiding repetitious 

argument, we request the Court to read and Consider this 

portion of the brief for defendants previously filed. In 

summary, we submit that an examination of the pertinent 

legislative history, particularly the remarks of Senator 

Mondale cited in our original brief, demonstrates that a 

finding of purposeful action with actual or constructive 

knowledge of its discriminatory impact is a necessary element 

in awarding of attorneys' fees pursuant to §718. Such 

finding is totally absent in the case sub juduce. The 

record in this case is clear that the only thing done by 

the defendant is to administer in a neutral and nondiscriminatory 

manner a Mississippi statute enacted in 1940 for the pro- 

vision, without cost, of textbooks to students attending 

 



  

public or private schools within the State of Mississippi. 

In our brief (page 28) defendants specifically 

disavowed the contention that their good faith is a 

defense to the awarding of attorneys' fees under §718; 

however, plaintiffs, in their brief (page 3) stated that 

defendants "argue that §718 [20 U.S.C. §1617] of the 

Emergency School Aid Act of 1972, does not apply to cases 

wherein defendants acted in 'good faith' and merely 

foraea a state statutes defining their duties". 

In support of their contention that defendants 

were in fact, active participants in the transfer of 

textbooks to private academies, plaintiffs cite a proported 

memorandum alleged to have been circulated to all Super- 

intendants of Education on December 4, 1969. See plaintiffs- 

appellees' brief, pages 6-7. 

This proported memorandum was supposed to have 

been attached as Exhibit 1 to a dacosi tion given by on Snowden. 

Neither the Snowden deposition nor the alleged memorandum 

are part of the record on this appeal. Pursuant to the rules 

of this Court, plaintiffs and defendants designated portions 

of the record on appeal in this cause, which have now 

been printed as the Appendix. We submit that it would not be 

appropriate to consider matters not properly before the 

wi itl - 

 



    

to 

* Court. We request the, court. to disregard citations of this 

PSroporien i aaiun at 0 Aid unless i is properly pre- 

sented to the court, = 43 10 Bi | 

Defendants have been able to locate a copy ‘of a dems 

“+position given by Marshal Alan Snowden on December 21, 1970, 

%but have Tot been able to find a deposition given by Mr. 

A nawder on June 28, 1971, which proportedly contained the 

a quoted ‘by Dlointifls as an exhibit. Mr. W. A. 

Matthews, Executive Secretary of ik Mississippi State Text- 

book Purchasing Board, one of the defendants in this i ly 

“has LL a search of the office of the Forth Board 

~and has not been able to find a copy of the proported memoran- 

“dum of December 4, 1969. Under the circumstances now weight 

should. be ‘given this proported memorandum. 

 



  

II 

Defendants-appellants argued in their orgininal 

brief (pages 34-37) that the State of Mississippi is an 

absent indispensable party to this litigation. Again, for 

the sake of ARPT T RR in i argument, we request the 

Court to consider that portion of our original brief in 

‘deciding the Satioh of whether to grant summary affirmance 

or:place this appeal on the summary calendar. 

The issue of absent indispensable parties res 

to the jurisdiction of the Court and may be considered at 

any time, including on appeal, and Courts will consider the 

issue sua sponte, just as they will any other jurisdictional 

issue, such as the Eleventh Amendment. 

Plaintiff—-appellees say that our position is unsound 

because any award made by the District Court will be from 

monies, even though appropriated by the State of Mississippi 

which; "will derive from this defendant controlled fund". 

Plaintiffs-appellees also contend that all of the 

cases cited by defendants are inapposite because neither the 

relevant states nor any of their agencies were named as parties 
  

defendant in those cases. 

This argument overlooks the fact that the Mississippi 

State Textbook Purchasing Board is not, and has never been, 

 



  

a defendant in this action. Among the defendants are the 

members of the Textbook Board and its Executive Secretary. 

The Textbook Board could never have been a defendant even 

if plaintiffs had desired it so, because the complaint in 

this action is based upon a violation of 42 U.5.C. §1983 

(A-1) and under §1983, the Textbook Board is not a suable 

Pe itiny. See Olson v. California Adult Authority (9 Cir. 

1970) 423 PF. 24.1326; Hewitt v.: 0ity of Jacksonville 

(5 Cir. 1951) 138 F..24 423. 

Defendants submit that the cases cited in its 

brief previously filed in support of their contention that 

% the State of Mississippi is an absent indispensable party 

to this litigation are fully controlling. 

- 14 - 

 



  

CONCLUSION 
  

For the foregoing reasons, this Court should not 

summarily affirm the judgment of the District Court, nor 

should it assign this appeal to the summary calendar, but 

in the event this case is assigned to the summary calendar, 

the judgment of the District Court should be reversed. 

Respectfully submitted, 

A. F. SUMMER, ATTORNEY GENERAL 
STATE OF MISSISSIPPI 

PETER M. STOCKETT, JR. 
® SPECIAL ASSISTANT ATTORNEY GENERAL 

sv: {Ph nm lol 

Peter M. Stockett, Jr. | 

 



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CERTIFICATE 
  

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 my Brief for defendants-appellants 

in opposition to motion for summary affirmance to the 

following: 

Jack Greenberg 
Melvyn R. Leventhal 
10 Columbus Circle 
Suite 2030 
New York, New York 10019 

Fred L. Banks, Jr. 
538 1/2 North Farish Street 
Jackson, Mississippi 39202 

This the H4~tp day of October, 1976. 

Cp hl yy 

     

    
    

   
   

    

     

     

      

  

PETER M. STOCKETT, JR) 
~ [||d3ad053b-a1f2-4c6e-88cc-22ee0cfab9f2||]