Brief for Defendants-Appellants

     [||4c9aecd5-b875-4670-b6dd-d76905b114a1||] ate A S-1)4 

IN THE UNITED STATES COURT OF APPEALS 

  

FOR THE PIPTH CIRCUIT 

  

NG. 79-2393 

  

DELORES NORWOOD, ETC., ET AL., 
PLAINTIFFS-APPELLEES 

Vv. 

D.-L. HARRISON, SR,, ET Al., 

DEFENDANTS-APPELLANTS 

3 On Appeal from the United States District Court 
for the Northern District of Mississippil 

  

BRIEF FOR DEFENDANTS-APPELLANTS 

  

A. F. SUMMER, ATTORNEY GENERAL 

STATE OF M1SSISSIPPI 

PETER M. STOCRKRETT, JR.y 

ASSISTANT ATTORNEY GENERAL 

POST OFFICE BOX 220 

JACKSON, MISSISSIPPI 

ATTORNEYS FOR DEFENDANTS-APPELLANTS 

 



  

madd fot © 

® a ? 

STATEMENT AS TO CERTIFICATE OF INTEREST 

No Certificate pursuantito Local Rule 13(£)(1) of 

this Court is required because Defendants—-Appellants are Officials 

of the State of Mississippi and counsel for Defendants-Appellants 

are the Attorney General of the State of Mississippi and Assis- 

tant Attorneys General of the State of Mississippi. 

 



REQUEST FOR ORAL ARGUMENT 

  

Pursuant to Rulel3(f) (4) and Rule 35(b) of the 

Federal Rules of Appellate Procedure, Defendants-Appellants re- 

quest oral argument in this matter. The reasons for this re- 

quest are as follows: 

hE The issues before this Court have nationwide 

application and the decision rendered on the issues will effect 

all State Governments. 

oF This is a case wherein State-owned property has 

actually been seized by a plaintiff judgment creditor through 

execution on said judgment by a Federal Court and sustained by 

the trial Court. 

3 The District Court has erroneously ordered the 

adding of interest of a substantial sum of money to its award 

for attorney fees and costs to be paid from funds of the State 

of Mississippi. 

4. At issue is the authority of the Federal Judi- 

ciliary over the fiscal affairs of a State Government. 

 



  

INDEX 

PAGES 

TABLE OF AUTHORITIES & ov ely a aii eiiie se Te lie ahi 14d 

STATEMENT OF THE ISSUERS ih. “ita: iv iv wiinin in al oie, 4% 

STATEMENT. OF. THE CASE: n'ai, iiviin ies wilco ia iivibins actin im 7 

SUMMARY OF THE ARGUMENT. . i. ie viv fe: oy . «3 

ARGUMENT 

THE DISTRICT COURT ERRED IN ORDERING 

DEFENDANTS TO PROCESS AND ISSUE WAR- 

RANTS OF THE STATE OF MISSISSIPPI IN 

PAYMENT OF JUDGMENTS FOR ATTORNEY'S 

FEES AND COSTS yi. 4 ein a sii vii, snd mi l2 

THE DISTRICT COURT ERRED IN ADDING 

INTEREST TO THE MONETARY AWARD FOR 

ATTORNEY TEES AND COBTS., vv «inf viv wl3i=18 

CONCLUSTON  .: . «si . . . . . «19 

CERTIBICATE OF SERVICE wiv wiv a Micuit, oi + iv wdD 

 



  

TABLE OF AUTHORITIES   

  

  

Alyeska Pipeline Service Co. Vv. 
The Wilderness Society, 

1975, 0.8. 195 S.Ct. 1612; 
44 L, Ed. 24 lie i ee 

Carpa, Inc., v. Ward.Foods, Inc., 
367 :F. 28 {5 Cir. 1O78B) .. oie wii viiv Hie 
  

Costello v. Wainwright, 
53% F.24, 547 (5 Cir. 11.976), 
  

Duffer v. American Home Assurance Co., 
Dl FuicaQ 723 AS Clr. A975)" « 8 va’ oie Ye ie 
  

Edelman wv. Jordan, 

415 U.5..651,,,94 8, Ct, 1347, 

39°L.. EQ. 520: 662 (L978) sv vi ei ets ve 

  

Gary W, vv. State of Louisiana, 
No. 77-3245 . . .%. 
  

Gates v. Collier, 
371 FP. Supp. 1368 (AN.D. Migs. 1973) Aff'd 
489 PF. 28 298 {5 Cir. 1973), pet. for reh. 
en- banc granted, 500. F. 24. 1382 (5 Cir. 
LOS). Fe Te aL en RAE a, 

  

  

  

  

  

Lineberry vv. United States, 
512:P., 243510 (5 Cir. 1975) 
  

Norwood . v., Harrison, 
413° U.8.:455, 37 L. Ed. 24 723 (1973) 
      

PAGES 

32 

16, 

 



  

STATEMENT OF THE ISSUES 

1. Whether the District Court erred in ordering 

Defendants to process and issue warrants of the State of Missis- 

sippi in payment of judgments for attorney fees and costs, con- 

trary to the provisions of the laws of the State of Mississippi? 

2. Whether the District Court erred in adding 

interest to the monetary award for attorney fees and costs? 

iV 

 



TABLE OF AUTHORITIES 

po (Continued) 

  

  

PAGES 

Parker v. Califano, 

443 FF, Supp. 789, 794 ADC, 1978) . . ma, 14 
  

Rainey vv. Jackson State College, 
NO. 74-262). ui fei wily inreae id widening wo hy8, 13,326,517, 
  

United States wv. Lewis, 

£75. PF, 24 571, 7574 {5 Clr. 1973.0. icv uv ei vdil8 
  

STATUTES   

Clayton Act, 

ADU. 8.0. 8 150% iv vit n vileite ile: WE S13 

Civil Rights Attorneys' Fees Awards Act of 1976, 
Pol. 94-559, 42 U.5.C. § 1988 a bdr, .V.3,.15,16,..17,:18 

Emergency School Act of 1972, 

20 1.8. Co 8 I6XT7, oui, ly Je a Sie awn 15 

Migs. Code Amn. 1972, $ 7=9~9 +» Li obie «0 7.8, 30, 11 

Miss. Code Ann., 1972, § 7<9=13. . Hos, a, . .8, 10,11 

Migs. Code Ann., 1972, .§ 11-45-55," , sv iG ge "10537 

Migs. Code Ann,, 1972, § 6634. .  . isis 705.1 

Title VII of the Civil Rights Act of 1964. . .i.14 

ii 

 



TABLE OF AUTHORITIES 

(Continued) 
  

  

PAGES 

OTHER AUTHORITIES   

Federal Rules of Civil Procedure, 

RULE 88 oy vg ti diel vii Tet rare i ea BEE HR 

Federal Rules of Civil Procedure, 
RIG 70. nie ee dE ia yr ETO 

Iii 

 



STATEMENT OF THE CASE 

  

On October 9, 1971, Black parents of public school 

students in Tunica County, Mississippi, filed a class action 

complaint challenging the constitutionality of Mississippi Code 

Annotated, § 6634, et seq, (1942), .a statute providing for the 

State's distribution of free state-owned textbooks to all school 

children in all elementary and secondary grades in Mississippi, 

whether attending public or private schools. Named as defendants 

were the executive secretary and members of the Mississippi State 

Textbook Purchasing Board. The complaint was addressed particu- 

larly to the statute's effect in providing state-owned textbooks 

to students attending schools alleged to be all-White or schools 

having racially discriminatory admission policies. Since the 

% complaint sought to enjoin the enforcement of a statute of ap- 

parent Statewide application, a three-judge Court was convened 

which upheld the Act's constitutionality. Norwood v. Harrison,   

340 F. Supp. 103 {N.D. Miss. 1972) (Three-Judge Court). 

On appeal, the Supreme Court of the United States, 

reversed, holding that the Equal Protection Clause forbade direct 

or indirect State aid to private segregated schools, irrespec- 

tive of the purpose of the assistance or whether the State aid 

gave any appreciable support to the maintenance of segregated 

education. Norwood v. Harrison, 413 U.8. 455, 37 L. BE4. 24 723   

(1973). Recognizing that all private schools in Mississippi 

& could not be presumed guilty of racial discrimination, the 

Court remanded with instructions to the District Court to deter- 

 



  

mine, on a school-by-school basis, the eligibility vel non of 

private schools in the State to receive continued State textbook 

aid. 

After remand, the three-judge Court was dissolved 

and the case remanded to a single judge of the District Court to 

establish an appropriate certification procedure. Pursuant to 

the Supreme Court's directive, the District Court conducted a 

school-by-school eligibility examination, completing the process 

in Norwood v. Harrison, 382 FPF. Supp. 221 (N.D. Miss. 1974). Im=- 
  

mediately thereafter, plaintiffs filed their motion for an at- 

torneys' fee award and submitted their itemized cost bill. The 

District Court deferred ruling on the motion for award of attor- 

neys' fees and the taxing of costs because the constitutionality 

of a similar award was pending before this Court, sitting en banc 

in another case from the District Court, Gates v, Collier, 371   

P. Supp. 1369 {N.D. Migs, 1973) aff'd, 489 7. 28: 298 (5 Cir. 1973), 

pet, for reh.. en banc granted, 500 FF, 24.1382 {5 Cir. 1975). 
  

This Court remanded Gates to the District Court for further con- 

sideration in light of Edelman v. Jordan, 415 U.S. 651, 94 5. 
  

Ct. 1347, 39 .L. Ed. 28 662, and Alyeska Pipeline Service Co., 
  

v. The Wilderness Society, 421 U.S. 420, 95 S.Ct, 1612,744 1. 
  

Fd. 24 141 (1975), Gates v. Collier, 522 FP. 24 81, (5: Cir. 1973) 
  

en banc. 

After remand by this Court in Gates, the parties in 

the case sub judice submitted a Brief to the District Court on 
  

the relevant issues, and that Court on March 2, 1976 entered 

an Order that: 

 



  

"[T]he members and Executive Secretary 
of the Mississippi State Textbook Pur- 
chasing Board, and their successors in 
office, be assessed in their official 

capacity with liability for the sum of 
$23,852 as attorneys' fees due and pay- 
able to plaintiffs’! counsel ($22,102 

to Melvyn R. Leventhal, $1,750 to James 

M. Nabrit, III), and $4,999.44 taxable 
costs incurred by plaintiffs in the pro- 
secution of the suit." 

Defendants appealed the District Court's award of 

fees and costs to this Court. On appeal, this Court held that 

the Order of the District Court of March 2, 1976 was not a final 

appealable decision within the context of 28 U.S.C. § 1291, and 

dismissed the appeal. Norwood v. Harrison, 563 F. 24 722 (5   

Cir. 1977). 

On remand from this Court, the District Court, with- 

out further hearings and without requesting additional briefing 

from counsel, on January 3, 1978, sua sponte entered a "Final   

Judgment under Rule 58, Federal Rules of Civil Procedure". The 

District Court adhered to its prior published opinion in this 

case, Norwood v. Harrison, 410 F. Supp.. 133 (1976), which based   

the award of fees and costs against State funds on the provisions 

Of § 718 of the Em@rgency School Act of 1972, 20 .0.8.C..5.1617, 

and declared that an alternative ground for allowing said award 

to be the Civil Rights Attorneys' Fees Awards Act of 1976, P.L. 

94-558, 42 0.8,.C.. § 19288 

The defendants filed a notice of appeal from said 

judgment on February 14, 1978 and plaintiffs filed a notice of 

appeal from said judgment on February 21, 1978. On appeal, this 

 



  

Court affirmed the fees award Order of the District Court 

for legal services rendered to March 2, 1976, and remanded to 

the District Court for a determination of appropriate compen- 

sation for work performed since its March 2 Order. Norwood 

Vv. Harrison, 581 ¥F. 24 518 (5 Ciy. 1978).   

After remand from this Court, the District Court 

entered a Judgment on December 4, 1978 against defendants making 

the following award of fees and costs incurred through March 2, 

1976: 

(a) NAACP Legal Defense Fund/Melvyn R. Leventhal, 

$26,965.68 representing the principal award of $22,102 together 

with interest at 8% per annum from March 2, 1976, through Decem- 

ber 1, 1978, with interest accruing at the rate of $4.84 per day 

from December 1, 1978, until paid. 

(b) NAACP Legal Defense Fund/James M. Nabrit, III, 

$2,135.13 representing the principal award of $1,750 together 

with interest at 8% per annum from March 2, 1976, through Decem- 

ber 1, 1978, with interest accruing atthe rate of $5.38 per azy 

from December 1, 1978, until paid. 

(c) NAACP Legal Defense Fund, $6,109.62 represent- 

ing the principal award for costs of $4,999.44, together with 

interest at the rate of 8% per annum from March 2, 1976, through 

December 1, 1978, with interest accruing at the rate of $1.10 

per day from December 1, 1978, until paid. (R.. 18-19). 

On December 14, 1978 defendants filed a Motion to 

Alter or Amend the Judgment of December 4, 1978, and requested 

 



  

w the District Court, in part, to delete all provisions for the 

payment of interest on the award of fees and costs. {(R.. 20-22). 

On December 20, 1978, the District Court signed a 

Memorandum Order, denying Defendants' Motion to Alter or Amend 

the December 4, 1978 Judgment. {R. 24-26). 

The District Court, on January 26, 1979, pursuant 

to motion of plaintiffs and mandate of this Court signed a 

Memorandum Order awarding Melvyn R. Leventhal and Bill Lann Lee, 

attorneys for plaintiffs, the sum of $2200 for attorneys' fees 

for work performed subsequent to March 2, 1976, along with reim- 

bursable costs of $553.50. (R, 27-29). On Pebruaryv 5, 1979, 

the District Court signed an Amendatory Order, increasing the 

® award of attorneys'fees to be paid to Mr. Melvyn R. Leventhal 

and Bill Lann Lee to $3100 from the $2200 previously awarded. 

(BR. 30-31). On March 12, 1979, the District Court signed an Or- 

der for the Payment of Attorney Fees and Costs. The March 12, 

1979 Order added as defendants to the action W. Hampton King, 

State Auditor of Public Accounts of the State of Mississippi and 

E. L. Pittman, Treasurer of the State of Mississippi. Said Or- 

der directed defendants to submit a requisition to the State Audi- 

tor of Public Accounts for the issuance of a warrant upon the 

State Treasurer to pay the previous Judgments of the District 

Court awarding attorney fees and costs and directed said State 

Auditor of Public Accounts, upon receipt of said requisition, 

to issue a warrant upon the State Treasurer to counsel for plain- 

tiffs for the payment of said Judgments, and further directed 

the Treasurer of the State of Mississippi to promptly, upon re- 

 



  

ceipt of the warrant or warrants so issued by the State Audi- 

tor of Public Accounts make payment thereof out of funds ap- 

propriated for the support and operation of the Mississippi State 

Textbook Purchasing Board or any other funds subject to the con- 

trol of the State Treasurer. The sums which the District Court, 

in its March 12, 1979 Order, directed the State officials to pay 

plaintiff's attorneys were as follows: 

NAACP Legal Defense Fund/Melvyn R. 
Leventhal, $26,965.68, with interest 
accruing at the rate of $4.84 per day 
from December 1, 1978, until paid; 

NAACP Legal Defense Fund/James M. Na- 
brit, 111, $2,135.13, with: interest 
accruing at the rate of $0.38 per day 
from December 1, 1978, until paid; 

NAACP Legal Defense Fund, $6,109.62, 
with interest accruing at the rate of 
$1.10 per day from December 1, 1978, 
until paid; 

Melvyn R. Leventhal and Bill Lann Lee, 
$3100, with interest accruing at the 
rate of 8% per annum from January 26, 
1979, untill pald: and 

Melvyn R. Leventhal and Bill Lann Lee, 
$553.50, with interest accruing at the 
rate of 8% per annum from January 26, 

1979, until paid. 

R. 32-36}. 

Defendants, on March 16, 1979, mailed for filing a 

Motion to Alter or Amend the Order of March 12, 1979, and request- 

ed the District Court again to delete all provisions for the pay- 

ment of interest on the award of attorneys' fees and costs, or 

in the alternative, to amend said Order so as to provide that 

the amounts Ordered to be paid thereby as interest should be 

 



  

placed in an escrow account under the control -and supervision 

of the Court. (R. 38-39). 

The District Court on April 33,1979, signed an 

Amendatory Order, granting the Defendants' Motion to Alter or 

Amend the March 12, 1979 Order to the extent that the amounts 

to be paid as interest on the prior Judgments were directed to 

be held in escrow under the control and supervision of the Court 

pending resolution of the propriety of such award on appeal. 

(R, 41-43). 

On April 27, 1979, defendants filed 'a notice of 

appeal to this Court from the Order for the Payment of Attorneys’ 

Fees and Costs entered by the District Court on March 12, 1979, 

as altered by Amendatory Order of April 3, 1979. (R.44). 

 



® SUMMARY OF THE ARGUMENT 

  

The District Court erred in ordering Defendants to 

process and issue warrants of the State of Mississippi in pay- 

ment of judgments for attorney's fees and costs. The Order from 

which this appeal is taken directed State Officials, namely the 

State Auditor of Public Accounts and the Treasurer, to process 

and pay monetary claims against State funds in direct violation 

of the provisions of Sections 11-45-5, 7-9-13, and 7-9-9 of the 

Mississippi Code of 1972, Annotated. These statutes of the State 

of Mississippi are valid and constitutional and constitute the 

essence of the power of the State of Mississippi to control its 

% monetary and fiscal affairs. The District Court 4id not restrain 

the enforcement of said statutes on the grounds that they vio- 

lated any provision of the Constitution or laws of the United 

States; absent such a determination of unconstitutionality, this 

Court has held in Costello v, Wainwright, 539 ¥v. 24 547 (5 Cir.   

1976) that a Federal Court should not order State officials to 

act in violation of State law. 

The District Court also erred in ordering the adding 

of interest to the awards for attorney fees and costs. The hold- 

ings of this Court in Carpa, Inc. v. Ward Foods, Inc., 567 PF. 
  

24 ‘1316, 1321-1323 (5. Cir. 1978), and in Rainey v. Jackson State 
  

4 College, No. 74-2621 (April 19, 1979), mandate the reversal of 

that portion of the Order of the District Court which added in- 

terest to the award, because the adding of such interest is square- 

ly contrary to the above mentioned holdings of this Court. 

8 

 



  

THE DISTRICT COURT ERRED IN ORDERING DEFENDANTS TO 

PROCESS AND ISSUE WARRANTS OF THE STATE OF MISSISSIPPI 

IN PAYMENT OF JUDGMENTS FOR ATTORNEY'S FEES AND COSTS 

As noted in the Statement of the Case, ante, the 

District Court on March 12, 1979 entered an Order for the Pay- 

ment of Attorney Fees and Costs from which this appeal is taken 

directing the defendants to pay plaintiffs' attorneys certain sums 

of money as attorney fees and reimbursable costs, together 

with 8% interest per annum thereon from the date of the original 

Judgments. The March 12, 1979 Order of the District Court fur- 

ther provided that W. Hampton King, State Auditor of Public Ac- 

counts, and E. L. Pittman, Treasurer of the State of Mississippi, 

eS be added as parties to this action, and further provided that 

the defendant members of the Board of Corrections of the State 

of Mississippi promptly submit a requisition to the State Auditor 

of Public Accounts, W. Hampton King, for the payment of the Judg- 

ments of the District Court, together with 8% interest; that the 

State Auditor of Public Accounts promptly issue a warrant upon 

the State Treasurer upon receipt of the said requisition for the 

payment of said Judgment; and that E. L. Pittman, Treasurer of 

the State of Mississippi, promptly, upon the receipt of the war- 

rant or warrants so issued by the Auditor of Public Accounts, 

make payment thereof out of funds appropriated for the support 

and operation of the Mississippi State Penitentiary or any other 

“ funds subject to the control of the State Treasurer. The Dig- 

trict Court further provided in its Order of March 12, 1979, that 

 



in case of the failure of the defendants to comply with the Order 

  

® and make full payment of the sums due within thirty days from 

the date of the Order, the Court reserved all of the rights and 

powers conferred upon it by Rule 70 of the Federal Rules of Civil 

Procedures, for the execution of Judgments of the Federal Courts, 

including the imposition of sanctions by way of civil contempt. 

The Order of the District Court from which this ap- 

peal is taken has the inevitable effect of suspending valid laws 

of the State of Mississippi relating to the execution of Judgments 

against the State. Section 11-45-5 of the Mississippi Code of 

1972, Annoted provides: 

"A judgment or decree against the State shall 
not be satisfied except by an appropriation 
therefor by the legislature, and an execution 
shall not be issued against the State." 

Section 7-9-13 of the Mississippi Code states as follows: 

"It shall not be lawful for the State 
Treasurer to pay Or receive any money on 
account of the State but on the warrant or 
certificate of the auditor, issued pursuant 
to law. When he shall make any disburse- 
ment, he shall write or stamp the word 
'paid' in large characters across the face 
of the warrant, and shall make an entry in 
his orrice of the date of such warrant. 
The warrant thus cancelled shall be a suf- 
ficient voucher for the payment of the same.’ 

The first sentence of Section 7-9-9 of the Missis- 

sippi Code which sets forth the duties of the Treasurer provides 

as follows: 

"it shall be the duty of the State Treasurer 
2 to receive and keep the moneys of the State 

in the manner provided by law, to disburse 
the same agreeably to law, and to take re- 

  

  

10 

 



ceipts or vouchers for moneys which 
® he shall disburse." (Emphasis added). 

  

There is a total and complete lack of authorization 

by the statutes of the State of Mississippi for the payment of 

the judgments which the District Court has ordered to be paid. 

Said Order of the District Court, from which this appeal is taken, 

is squarely contrary to the provisions of Section 11-45-5 of the 

Mississippi Code, supra; it requires the defendant, W. Hampton 

King, State Auditor of Public Accounts, to violate the duty im- 

posed upon him by Section 7-9-13 of the Mississippi Code, supra, 

to 1ssue a warrant or certificate "pursuant to law"; and it com- 

pels E. L. Pittman, Treasurer of the State of Mississippi, to 

violate the provisions of Sections 7-9-13 and 7-9-9 of the Mis- 

sissippli Code, supra, relating to the payment or disbursement 

3 of monies of the State of Mississippi. 

The Order of the District Court from which this 

appeal is taken did not hold or declare any of the above cited 

statutes of the State of Mississippi to be unconstitutional; but 

it has the direct, inevitable effect of suspending the operation 

of these statutes which are at the core of the undoubted right 

and power of the State of Mississippi to control its own fiscal 

affairs. In Costellov. Wainright, 539° FP. 2d 547 (5: Cir. 1976) 
  

this Court, in an en banc opinion held that the State defendants 

can not be required to suffer the consequences of an Order with 

which they have no legal capacity to comply, absent an injunction 

p by a Court against the operation of the offending statutes. 539 

F. 28, Page 552. 

11 

 



The issue presented by this part of the appeal is 

  

basically the same as that presented in other cases presently 

pending on appeal in this Court, Gary W. v. State of Louisiana,   

No. 77-3245, and Gates v. Collier, No. 79-1844. Appellants   

endorse the position taken by the State of Louisiana in Gary W., 

supra, and urge this Court to instruct ‘the District Courts of 

this Circuit that they do not have authority to order monetary 

judgments enforced against funds of an unconsenting State by 

means of compelling State officials to violate valid, constitu- 

tional provisions of State law relating to the management and 

control of the fiscal affairs of the State. 

32 

 



  

Ii. 

THE DISTRICT COURT ERRED IN ADDING INTEREST TO THEL 

MONETARY AWARD FOR ATTORNEY FEES AND COSTS 

The District Court erred in adding interest to the 

monetary award for attorney fees and costs to be paid from funds 

of the State of Mississippi. 

This adding of interest to such awards is squarely 

in conflict'with the decisions of this Court in Larpa, Inc. .v.   

Ward Foods, Inc., 567 ¥. 28, 1316, 1321-1323 {5+ Cir. 1978),   

and in Rainey v. Jackson State College, No. 74-2621 (April 19, 
  

1979). In Carpa, supra, this Court was reviewing a Judgment of 

a District Court which added interest to an attorneys' fee award 

based on the attorneys' fee award provisions of the Clayton Act, 

15 U.5.C. § 14. The pertinent language of 15 U.S.C. $ 15 pro- 

vided that any person injured by reason of violation of the anti- 

trust laws "shall recover threefold the damages by him sustained, 

and the cost of suit, including a reasonable attorney's fee." 

In holding that the District Court erred in adding interest to 

the award of attorneys' fees, this Court stated: 

"Appellees do not contend that interest is 

payable on court costs as a general matter, 
and they fail to cite a single federal case 
in which interest was awarded on costs. Our 
own researches have also failed to uncover 
such a precedent. Against this background, 
it 1s significant that nothing in the statu- 
tory ‘language ovihistory of 15 U.S.C. §-15 
indicates that Congress recognized a dis- 
tinction between attorney's fees and other 
costs. 

The only Fifth Circuit case touching on 
this issue is Duffer v. American Home Assur- 
  

13 

 



ance Co., 512 PP. 2& 793, (5th Cir. 1975), 
which reaffirmed the traditional view that 
costs do not bear interest. Duffer was a 
diversity case which presented the question 
of whether, under Texas law, attorneys' fees 
are part of the judgment, which bears interest, 
or are an item Of court costs, which do not 
bear interest. The controlling statute pro- 
vided that 'such attorney's fee shall be taxed 
as part of the costs in the case,' and in the 
absence of a controlling decision by the Texas 
Supreme Court and in light of the 'unequivocal 
language of the statute,' we held that the 
trial court erred in awarding interest on the 
attorneys! fee. 512 F. 24 at 800. . Although 
Duffer was a diversity case applying state law, 
it 1s somewhat instructive to note that faced 
with a statutory language similar to 15 U.S.C. 
§ 15, and without any controlling precedent to 
bind it, the court held that attorneys' fees 
are an item of costs and as such do not bear 
interest. 

In holding that attorneys' fees in anti- 
trust cases may not bear interest, we are not 

unmindful that Congress manifested a strong 
remedial purpose in its decision to reverse 
the historical pattern and provide for the award 

. of attorneys' fees to victorious plaintiffs in 
anti-trust action. However, Congress did not 
see fit to reverse the traditional practice of 
not awarding interest on court costs, if indeed 
it considered the question of interest or the 
policies underlying the historical practice. 
In the absence of further Congressional gui- 
dance, and in light of the fact that the pro- 

vision of treble damages as well as attorneys’ 
fees in the anti-trust laws affords sufficient 
scope to the remedial purposes of encouraging 
private enforcement of the anti-trust laws and 

facilitating the procuring of legal services, 
we see no basis for stretching the applicable 
statutory language to provide interest on the 
award of attorneys' fees to successful anti- 

trust plaintiffs.” {567 ¥.:28; pp. "1322=1323 . 

  

  

For a case giving the same interpretation to a simi- 

lar attorneys' fee award provision of Title VII of the Civil Rights 

  
“ Act Of 1964, see Parker v. Califano, 443 PF. Supp. 789, 794 (D.C. 

19738). 

14 

 



The statutory bases upon which the District Court 

  

% awarded attorneys' fees and costs in the case sub judice, are   

the Civil Rights Attorneys' Fees Awards Act of 1976, 42 U.S.C. 

§ 1988, and the Emergency School Aid Act, 20 U.S.C. Section 

1617, {R. 41, Amendatory Order, p. 1)... This Court is well familiar 

with the provisions of these Acts of Congress, and we will not 

burden the Court with recopying the text of thest statutes here. 

Suffice it to say, the operative language of the statutes is 

that "the Court, in its discretion, may allow the prevailing par- 

ty, other than the United States, a reasonable attorney's fee 

as part of the costs.” The Supreme Court of the United States 

in Hutto v. Finney, U.S. 7 398 8S ..CE. 2565, 57 1. Ed.   

2s 522, clearly treated the award of attorneys' fees pursuant 

to the Fees Awards Act as being part of costs. 57 L. Ed. 24 pp. 

% 536-539. 

The reason assigned by the District Court for hold- 

ing Carpa, Inc., to be inapplicable to the case sub judice was     

"express Congressional recognition of interest on awards of 

attorneys' fees as part of costs under 42 USC § 1988." {R. 24~ 

25, Memorandum Order, December 20, 1978,:pp. 1-2). Of course, 

the District Court erred in finding "express Congressional recog- 

nition of interest in the Pees Awards Act, 42 U.5.C. § 1988, 

because that statute contains no mention of interest. We find 

the legislative history of the Act to likewise contain no basis 

for "Congressional recognition of interest." This being true, 

  % the holding of this Court in Carpa, Inc., supra, mandates rever- 

sal of the action of the District Court in the case sub judice   

adding interest to various awards for attorney fees and costs 

15 

 



  

from the dates of the entry of the original judgments for 

sald fees and costs by the District Court. 

In light of the recent action of this Court in deny- 

ing the adding of interest to an award for attorney fees and 

costs made pursuant to the Civil Rights Attorneys' Fees Awards 

Act of 1976 in Rainey v. Jackson State College, No. 74-2621 
  

(April 19, 1979), there can be no doubt but that the holding 

Of the Court in Carpa, 1nc., supra, applies with equal force to   

awards for fees and costs made under authority of the Fees Awards 

Act. The action taken by this Court in Rainey, supra, was taken 

on a motion to allow interest on award of attorney's fees from 

date of the District Court judgment, which was filed by prevail- 

ing plaintiffs in a civil rights action subsequent to partial 

granting of a petition for rehearing in Rainey, known as Rainey 

Ill,"ds found at 551 F. 24 672. Rainey I1I held that the prevail- 
  

ing plaintiffs were entitled to an award of attorney fees and costs 

based on the Fees Awards Act. The subsequent motion to allow 

interest on award of attorney's fees from date of the District 

Court judgment filed by plaintiffs in Rainey on March 28, 1979 

moved the Court to allow interest on the entire pre-appeal fee 

award of $11,182.50 from the date of the District Court's judg- 

ment awarding attorney's fees. 

The defendants in Rainey were represented by the of- 

fice of the Attorney General of Mississippi, and two of the prin- 

cipal contentions made by the defendants in opposition to the 

motion to allow interest of fees and costs is contrary to the law 

16 

 



  

ofithis.circult as reflected in Carpa, Inc.,=supra, .1/ ‘and   

that the legislative history of the Civil Rights Attorneys' Fees 

Awards Act of 1976, 42 U.5.C.  '§ 1988, indicates that the conclu- 

sion reached in Carpa, Inc., is applicable to Rainey. 2/ 
  

On April 19, 1979, .a panel of this Court:  3/ entered 

an Order disposing of the motion of plaintiff in Rainey in the fol- 

lowing terms: 

"IT IS ORDERED that the appellant's motion 
to allow interest on award of attorney's 
fees from date of district court judgment 
is DENIED.” 

The denial of the motion for adding of interest to 

the fees award made by this Court in Rainey, supra, is a holding 

that the Fees Award Act does not create an exception to the 

general rule that interest may not be added to fees when they 

are treated as part of the costs. The combination of the deci- 

sions of this Court in Carpa, Inc., and Rainey, supra, mandate   

the reversal of the action of the District Court of adding interest 

to the awards for fees and costs in the appeal sub judice. This   

Court has repeatedly held that a panel of the Court can not over- 

  

_1/ Rainey v. Jackson State College, et al., No. 74-2621, Defen- 

dants' Response to Plaintiff's Motion to Allow Interest on 
the Award of Attorney Fees, pp. 2-4. 

  

_2/ Id. at pp. 4-5. 

_3/ Judges Coleman, Godbold and Hill (Judge Coleman not partici- 
pating in the disposition of this motion). 

17 

 



rule a prior decision of the Circuit, en banc consideration 

  

  

being required. United States v. Lewis, 475 PF. 24 571, 574 (5 

Cir. 1973). There is a firm policy that one panel will not over- 

rule a decision of another panel. Linebery wv. United States, 
  

312 °F. 24.510 (5 Cir. 1975)/ 

In Hutto v. Finney, U.S, +98 5S... 0c. 2565, 
  

57 L. Ed. 2d 522, the Supreme Court of the United States held 

that the Civil Rights Attorneys' Fees Awards Act of 1976, both 

by its terms, and in light of its legislative history, authorized 

a monetary judgment for attorney fees and costs to be paid by 

funds of an unconsenting State. 57 L. Ba. 28, 536. There is 

nothing contained within the terms of the Fees Awards Act which 

authorizes the adding of interest to an award for fees or costs 

made pursuant thereto. Neither does the legislative history of 

the Fees Awards Act authorize the adding of itnerest to an award 

for fees or costs. That is the meaning of the controlling hold- 

ings of this Court in Carpa, Inc, supra, and Rainey, supra. 
  

It was a Cleary error for the District Court to add 

interest to its award for fees and costs. Such action by the 

District Court should be reversed by this Court. 

18 

 



  

CONCLUSION 

This Court should reverse the Order of the District 

Court from which this appeal is taken insofar as said Order com- 

pelled the defendant State Officials to process and issue war- 

rants on funds of the State of Mississippi in payment of various 

judgments for attorney fees and costs, contrary to the valid laws 

Of the State of Mississippi. If this Court declines to reverse 

the Order of the District Court on the basis above mentioned, 

then this Court should reverse the Order of the District Court to 

the extent that said Order added interest to the awards of attor- 

ney fees and costs to be paid from funds of the State of Missis- 

sippil, 

Respectfully submitted, 

A. F. SUMMER, ATTORNEY GENERAL 

STATE OF MISSISSIPPI 

PETER M. STOCRETT, JR. 

ASSISTANT ATTORNEY GENERAL 

m0 

BY: Es An Ny Silgev.of. Xe 
    

PETER M."STOCKETT/}) JR. 

19 

 



CERTIFICATE OF SERVICE 

  

I, Peter M. Stockett, Jr., Assistant Attorney Gene- 

ral for the State of Mississippi, and one of the attorneys of 

record for Defendants-Appellants do hereby certify that I have 

this day mailed, postage pre-paid, one copy of the foregoing 

Brief for Defendants-Appellants to the following counsel of 

record: 

Bill Lann Lee, Esquire 
Suite 2030 

10 Columbus Circle 

New York, New York 10019 

Fred 1. Banks, Jr. 

% 538 1/2 North Farish Street 
Jackson, Mississippi 39205 

This, the [ipl day of August, 1979.   

\ yori M ef wel TfE WD, [Vail ON 

PETER M. STOCKETT, JR. 
  

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