Defendants' Rebuttal to Plaintiffs' Opposition to Defendants' Motion to Alter or Amend Judgment

     [||5bcae6a7-f457-4460-af46-4c8fe2ab9d79||] IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF MISSISSIPPI 

WESTERN DIVISION 

DELORES NORWOOD, ET AL., 

Plaintiffs, 

Vv. CIVIL ACTION NO. WC 70-53-K 

PD. L. HARRISON, SR., ET AlL., 

Defendants. 

DEFENDANTS' REBUTTAL TO PLAINTIFFS' OPPOSITION TO DEFENDANTS 

MOTION TO ALTER OR AMEND JUDGMENT 
  

Plaintiffs contend that the decision of the Fifth Circuit 

in Cayrpa, Inc., 'v. Ward Poods, Inc., 567 F. 24. 1316: (5 Cir. 1973) 
  

is not dispositive of the question of whether interest should be 

added to the award of attorneys' fees in the case at bar. As we 

stated in our Memorandum in Support of Motion to Alter or Amend 

Judgment, Carpa, Inc., supra, held that interest is not payable on 
  

costs of Court, and where attorneys' fees are treated as part 

of the costs, interest is not allowable on an award of attorneys’ 

fees. We further noted that both the Civil Rights Attorney's Fees 

Awards Act of 1976, 42°0U0.8.C. § 1988 and § 718 of the Emergency 

School Ald Act, 20 U.S.C. § 1617, explicitly include attorneys’ 

fees as part of the costs. Plaintiffs seek to avoid the strictures 

of Carpa, Inc., by relying on the following language from that Opinion:   

"Congress could, of course, provide that attorneys’ 
fees bear interest. Our holding that attorneys 
fees in antitrust cases are not to bear interest 
implies nothing whatsoever about the propriety of 
interest on attorneys' fees authorized by other 

statutes. The language and history of a given 
statute might suggest that the public purposes 
underlying the statutory authority for attorneys’ 
fees would be materially advanced by allowance of 

 



  

interest, and the absence of a treble damage 
provision which complements the attorneys’ 
fee provision would also require consideration.” 

567. F. 24. at 1323. 

We have no problem with the above quoted language, and 

think that it is perfectly consistent with the position that the 

holding in Carpa, Inc. 1s negatively dispositive of the question of   

whether interest may be added to an award of attorneys' fees. 

Plaintiffs do not contend, nor could they, that there is 

any language contained in either Act of Congress authorizing the 

award of attorneys' fees in the case sub judice which has any pro-   

vision for the adding of interest to the award of attordeys! fees. 

Being unable to find any statutory language in either Act of Congress, 

Plaintiffs pluck one paragraph from one of 25 cases /1 «cited in 

the Report of the Senate Judiciary Committee, and attempts to use 

that as a sound basis for a finding that it was the intent of the 

Congress which enacted the ‘Civil Rights Attorney's Fees Awards Act 

of 1976 to provide for the adding of interest to an award of attor- 

neys' fees. This is far too slender a reed upon which to rest the 

weighty presumption that Congress, in enacting the Fees Awards Act, 

intended to alter the well-settled rule that interest should not be 

added to costs of Court. 

It is clear from reading the complete pertinent language 

of the Report of the Senate Judiciary Committee which referred to 

Davis v. County of los Angeles, supra, that Davis was cited strictly 
  

as an example of the appropriate standards to be used in fixing the 

amount Of attorneys' fees, and not to support the proposition that 

interest should be added to an award of attorneys' fees. The complete 

language is as follows: 

"It is intended that the amount of fees awarded under 
S. 2278 be governed by the same standards which prevail 
in other types of equally complex Federal litigation, 

  

/1" Davis v. County of Los Angeles, 3 EPD Y 9444 (C.D. Cal. 1974). 
  

 



  

such as antitrust cases and not be reduced because 
the rights involved may be nonpecuniary in nature. 
The appropriate standards, see Johnson v. Georgila 
Highway Express, 488 F. 24. 714 (5th Cir. 1974), are 
correctly applied in such cases as Stanford Daily v. 
Zurcher, 64 P.R.D. 680 (N.D. Cal. 1974); Davis v. 
County of Los Angeles, 8 B.P.D. 9% 9444 (C.D. Cal. 1974); 
and Swann v. Charlotte—-Mecklenburg Board of Education, 
66 F.R.D. 483 (W.D.N.C. 1975}, 

  

  

  

  

  

  

This is highlighted by the fact that neither Stanford Daily   

V. Zurcher, supra, nor Swann v. Charlotte-Mecklenburg Board of   
  

Education, Ssupra,not mentioned by the Plaintiffs, have nothing to do 
  

with the adding of interest to an award of attorneys' fees, but deals 

strictly with the standards for fixing the amount for the award of 

fees, which is the sole and only purpose for which the Senate Judi- 

ciary Committee referred to all of the cited cases, including Davis 

v. County of Los Angeles, supra.   

As to the contentions of Plaintiffs that the doctrines of 

res judicata and law of the case bar consideration of the question   

of interest on the attorneys' fees award, the decision of the Fifth 

Circuit in Carpa, Inc., supra, in which the Court of Appeals definitively   

gtated the law of this Circuit that interest should not be added 

to ALEOTREYE! fees where fees are considered part of the costs, was 

a supervening legal development which constitutes an exception to 

such doctrines. Plaintiffs attempt to make something of the point 

that Defendants did not appeal the Order of this Court of March 13, 

1978 which denied Defendants' previous Motion to Amend the Judgment 

as to Interest on the Award of Fees. This Court entered its final 

judgment as to the award of attorneys fees on January 3, 1978, and 

after Plaintiffs had filed a Motion to Amend Judgment and Defendants 

had filed a Motion to Vacate that judgment, this Court entered an 

Order denying Plaintiffs Motion to Amend the Judgment on January 13, 

1978, and entered an Order to deny the Motion of Defendants to Vacate 

the Judgment oh January 23, 1978. On February 14, 1978, the Defen- 

dants filed a Notice of Appeal from the Final Judgment of January 3, 

1978, and on February 21, 1978, Plaintiffs filed a Notice of Appeal 

from said Final Judgment. In light of these facts and circumstances, 

it is highly doubtful that the Order of this Court of March 13, 1978 

 



  

denying our Motion to strike the interest provision from the Stay 

Order granted Defendants by the Court was an appealable Order. 

Stone v,. Wyoming Supreme Court, 236 FP. 24. 275, 276-277, (10 Cir. 
  

1976) held that: 

"A direct appeal will not lie from a post- 
judgment order denying a motion to re-con- 
sider earlier action taken on a post-judg- 
ment motion." 

See, also, Vaughn v. City Bank and Trust Company, 218 PF. 24. 
  

802 {5 Cir. 1955). 

For the above reasons and the reasons stated in our previous 

memorandum, Defendants contend that our Motion to Alter or Amend Judg- 

ment should be granted. 

Respectfully submitted, 

A. F. SUMMER, ATTORNEY GENERAL 

STATE OF MISSISSIPPI 

PETER M. STOCKETT, JR. 

ASSISTANT ATTORNEY GENERAL 

STATE OF MISSISSIPPI 

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BY pS oo cs Da {1y yo HC } SH \ : 
  

PETER M. STOCKETT, JR. [||5bcae6a7-f457-4460-af46-4c8fe2ab9d79||]