Jordon v. Gilligan Supplemental Brief in Support of Petition for Writ of Certiorari

    I s  T H E

Gkwrt of %  Initi^ B U U b
O ctober T e e m , 1974 

No. 74-403

S a m u el  J .  J ordon, et al.,

v.
Petitioners,

J ohn J .  G illig a n , et al.

SUPPLEMENTAL BRIEF IN SUPPORT OF 
PETITION FOR WRIT OF CERTIORARI

N a t h a n iel  R . J ones

W illia m  D. W ells 
1790 Broadway 
New York, New York 10019

J ack Greenberg

E ric S ch n a pper  
Suite 2030 
10 Columbus Circle 
New York, New York 10019

A lbert Ortenzio

20% W. Boardman 
Youngstown, Ohio

Counsel for Petitioners



In t h e

GImtrt of tij? Stairs
O ctober T erm , 1974 

No. 74-403

S a m u el  J .  J ordon, et al.,
Petitioners,

v.

J o h n  J. G illig an , et al.

SUPPLEMENTAL BRIEF IN SUPPORT OF 
PETITION FOR WRIT OF CERTIORARI

Petitioners Samuel Jordon, et al., submit this supple­
mental brief with regard to this Court’s decision in 
Alyeska Pipeline Service Co. v. Wilderness Society, No. 73- 
1977 (May 12, 1975).

The instant case involves a collateral attack on a final 
District Court order awarding counsel fees. Attorneys’ fees 
were awarded by an order of May 19, 1972, which became 
final on that date, and from which no appeal was ever 
taken. Nine months after the entry of this order, Ohio 
moved to vacate it on the sole ground that the Eleventh 
Amendment deprived the District Court of jurisdiction to 
enter such an award against a state. Since this case 
presents such a collateral attack, rather than a direct 
appeal, the only ground on which that award of counsel 
fees may be challenged would be a lack of jurisdiction.



2

Both, courts below properly recognized this limitation. 
Petition 8a-9a, 18a, 33a-34a. Even if the District Court’s 
decision of May 19, 1972, were erroneous in light of 
Alyesha, such an error would be only an ordinary mistake 
of law not jurisdictional in nature and not raisable at this 
late date, three years after the entry of the order from 
which no appeal was taken.

Were this case a direct appeal from the May 19, 1972, 
order, the decision below still could not be upheld merely 
because of Alyesha. Counsel fees were awarded on May 19, 
1972, not because of the private attorney general or any 
other rationale, but because the defendants did not oppose 
them. Petition la, 7a. Ten months later, after the defen­
dants sought to collaterally attack the May 19 order, the 
District Court articulated three independent bases which 
would have supported an award of counsel fees had the 
original application for such fees been contested: (1) the 
“obvious constitutional infirmities” of the statute passed 
by the legislature and challenged by plaintiffs, a species of 
obdurate obstinacy, see Brandenburger v. Thompson, 494 
F.2d 885, 890 (9th Cir. 1974), (2) the benefit conferred 
upon the defendants and the voters of Ohio, citing Mills v. 
Electric Auto-Lite Co., 396 U.S. 375 (1960), and (3) the 
private attorney general doctrine. Petition 3a-7a. The sole 
issue raised on the subsequent appeal, and the sole basis 
on which the Sixth Circuit reversed the award of counsel 
fees, was whether the Eleventh Amendment bars awards 
of counsel fees against a state. That question was ex­
pressly left unresolved by this Court’s decision in Alyesha. 
Slip opinion, pp. 25, 29, nn. 39, 44.

For the above reasons this Court’s decision in Alyesha 
Pipeline Service v. Wilderness Society, does not provide 
an independent basis for affirming the decision of the Court



3

of Appeals. A Writ of Certiorari should therefore issue 
to review the judgment and opinion of the Sixth Circuit.

N a th a n iel  R . J ones

W illia m  D. W ells 
1790 Broadway- 
New York, New York 10019

J ack  Greenberg

E ric S ch n a pper  
Suite 2030 
10 Columbus Circle 
New York, New York 10019

A lbert  Ortenzio

20% W. Boardman 
Youngstown, Ohio

Counsel for Petitioners



MEIIEN PRESS IN C  —  N. Y, C 219