Hutto v. Finney Brief Amicus Curiae

    No. 76-1660

J!» ilt ̂ «pme djtattt of Sttital $tate
O ctober T erm , 1977

T errell D on H ijtto , et  al., petitio ners

v.
R obert F in n e y , et al .

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
APPEALS FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

W A D E  H . M cC R EE, JR .,
Solicitor General,

D R E W  S, DAYS, I I I ,
Assistant Attorney General, 

W A L T E R  W . B A R N ET T ,
D E N N IS  J . D IM SEY ,

Attorneys,
Department of Justice, 

Washington, D.C. &05S0.



I N D E X
Page

Questions presented---------- ---------------------------------------  1
Constitutional provision and statutes involved---------------  2
Interest of the United States--------------------------------------  3
Statement -------------------------------------------------------- -—  3
Introduction and summary of argument------------------------ 5
Argument:

The Civil Eights Attorney’s Fees Awards Act of 1976 
authorizes an award of attorney’s fees in this case—  9

A. The Eleventh Amendment does not bar an
award of attorney’s fees to be paid from 
state funds pursuant to the Civil Eights 
Attorney’s Fees Awards Act-------------------  10

1. As a valid exercise of congressional power
pursuant to Section Five of the Four­
teenth Amendment, the Act abrogates 
any Eleventh Amendment immunity the 
state might otherwise have enjoyed____  10

2. An award of attorney’s fees has only an
ancillary effect on the state treasury------  15

B. The Act applies to cases such as this, pending
on the date of enactment------------------- ------  21

Conclusion ----------------------------------------------------------- - 22

CITATIONS

Cases:
Alexander v. Gardner-Denver Co., 415 U.S. 36---------  3
Alyesha Pipeline Service Co. v. Wilderness Society, 421

U.S. 210-------------------— — — ---------------------- 6,7
Bergna v. The Stanford Daily, No. 76-1600------------- - 9,21
Bond v. Stanton, 528 F. 2d 688, vacated and remanded,

429 U.S. 9 7 3 ------------- ------------ -------- --------- — . 18
Bond v. Stanton, 555 F. 2d 172----------------------------- - 12
Boston Chapter, N.A.A.C.P., Inc. v. Beecher, 504 F. 2d

1017, certiorari denied, 421 U.S 910— ----------------  18
Bradley v. Richmond School Board, 416 U.S. 696____  21

a)
253 - 804— 78- -1



I I

Cases—continued ,,
Brandenburger v. Thompson, 494 F. 2d 885_______ 6,18,21
Brown v. Board of Education, 347 U.S. 483_________  18
Class v. Norton, 505 F. 2d 123____________________ 18,20
Consist v. Richland Parish Schgpl Board, 495 F. 2d 189_ 6
Donohue v. Staunton, 471 F. 2d 475, certiorari denied,

410 U.S. 955------ ------------- ----- -----------------6,11,15,16
Edelman v. Jordan, 415 U.S. 651___________9,15,16,17,18
Employees v. Missouri Public Health Dept., 411 U.S.

279 ___________________________________ _____  i i
F. D. Rich Go. v. Industrial Lumber Co., 417 U.S. 116_ 5
Fairmont Creamery Co. v. Minnesota, 275 U.S. 70____ 16,19
Finney v. Arkansas Board of Correction, 505 F. 2d 197, 

affirming in part and reversing in part IIoil v. Hutto,
363 F. Supp. 194_______________________________ 4 .

Fitzpatrick v. Bitzer, 427 U.S. 445__________9,10,11,14,19’
Fowler v. Schwarzwalder, 498 F. 2d 143___________ 6-
Gates v. Collier, 559 F. 2d 241_____________________  12
Gary IF. v. State of Louisiana, 429 F. Supp. 711_____  12
Gautreaux v. Hills, 425 U.S. 284_____________ _____  12
Goldberg v. Kelly, 397 U.S. 254___________________15,17
Graham v. Richardson, 403 U.S. 365_______________ 15,17
Great Northern Life Ins. Co. v. Read, 322 U.S. 47____  11
Guajardo v. Estelle, 432 F. Supp. 1373_____________  12;
Hall v. Cole, 412 U.S. 1___________________________ 1
Hans v. Louisiana, 134 U.S. 1_________________ _ 11
Hicks v. Miranda, 422 U.S. 332_________________ __ 21
Holt v. Hutto , 363 F. Supp. 194 __________ ;______  4
Holt v. Sarvei', 300 F. Supp. 825.___________________ _ 4
IIoil v. Sarver, 309 F. Supp. 362, affirmed, 442 F. 2d 304_ 4
Jordan v. Fusari, 496 F. 2d 646____________________  18
Jordon v. Gilligan, 500 F. 2d 701, certiorari denied,

421 U.S. 991------- ——------------------------------------ - 18,21
LaRaza TJnida of Southern Alamsda Cov/nty v. Yople,

N.D. Cal., No. C-71-1166 E PF , decided September 29,
1977 ________________________________ ____ __  12

Mills v. Electric Auto-Lite Co., 396 U.S. 375_________ 6
Monroe v. Pa.pei 365 U-S. 167__________________  14
Murgia v. Mass. Bd. of Retirement, 376 F. Supp. 753,

386 F. Supp. 179, affirmed, 421 U.S. 972, reversed,



I l l

Cases—continued page
427 U.S. 307--- -------------------— -----------  20

Named Individual Members of San Antonio Conser­
vation Society v. Texas Highway Dish, 496 F. 2d
1017__________ — — _________ — -------- --------  19

Neicmann v. State of Alabama, 522 F. 2d 71-----------  21
O'Connor v. Donaldson, 422 U.S. 563.----------------------  20
Parden v. Terminal R. Co., 377 U.S. 184------------------  11
Rainey v. Jackson State College, 551 F. 2d 672---------  12
Shannon v. United States Department o f Housing and

Urban Development, 433 F. Supp. 249----------------  12
Sims v. Amos, 340 F. Supp. 691. affirmed, 409 U.S. 942_ 18,

20,21
Skekan v. Board of Trustees of Bloomsburg State Col­

lege, 501 F. 2d 31, vacated and remanded, 421 U.S.
983 _______________________ —------------------------18,21

Skehon v. Board of Trustees of Bloomsburg State Col­
lege, 436 F. Supp. 657-------------------------------------  12

Souza v. Travisono, 512 F. 2d 1137, vacated, 423 U.S.
809 _____________________________________ 6,18,19,20

Southeast Legal Defense Group v. Adams, 436 F. Supp.
891___________________ _____________________  12

Sprague v. Ticonic Bank, 307 U.S. 161------------------- - 19
Taylor v. Perini, 503 F. 2d 899, vacated and remanded,

421 U.S. 892________________ - —  ----------6,18,20,21
Thonen v. Jenkins, 517 F. 2d 3-----------------------------  18
Trafficante v. Metropolitan Life Insurance Co., 409

U.S. 205 ---------------------------   3
United States v. Donaldson, 429 U.S. 413------ -----------  15
Vaughn v. Atkinson, 369 U.S. 527—.-----------------------  5
Wade v. Mississippi Coop. Extension Service, 424 F.

Supp. 1242____________________    12
Wood v. Strickland, 420 U.S. 308--------------------------  18
Young, E x parte, 209 U.S. 123—— ___ ___ 9,16,17,19, 20
Zurcher v. The Stanford Daily, No. 76-1484------------ 9,21

Constitution, statutes and rule:
United States Constitution:

Eleventh Amendment____ _— --------—--------- passim
Fourteenth Amendment, Section 5___ 9,10,11,12,15
Thirteenth Amendment---------—— _--------------12,15

Civil Rights Act of 1967, Title V II, 78 Stat. 253, as 
amended, 42 U.S.C. (and Supp. V) 2000e et seq-----  9-10



IV

Constitution, statutes and ru le:—continued Paw
Civil Rights Attorney’s Fees Awards Act of 1976, Pub.

L. 94-4>59, 90 Stat. 2641________________________  2,7
R.S. 1979, 42 U.S.C. 1983______________ 2,3,7-8,9,10,14
42 U.S.C. 1971 et seq____________________________  3
42 U.S.C. 2000a et seq____________________________ 3
42 U.S.C. 2000b et seq______    3
42 U.S.C. 2000c et seq___________________________  3
42 U.S.C. 2000d et seq___________________________  3
42 U.S.C. 2000e et seq____________________________  3
42 U.S.C. 3601 et seq____________________________  3
Ark. Stat., 1947 § 12-712 (1968 Repl.)_____________ 15
Ann. Cal. Gov. Code § 825 et seq. (West Cum. Supp.

1977) ______________________________________  15
Miscellaneous:

121 Cong. Rec. S14975 (daily ed., August 1, 1975)-----  7
122 Cong. Rec. H12160 (daily ed., October 1, 1976)— 13-14 
122 Cong. Rec. S16431-S16434 (daily ed., September

22, 1976)-------------------------    12
122 Cong. Rec. S16656, 16657 (daily ed., September 27,

1976)_______________________________________  12
H.R. Rep. No. 94-1558, 94th Cong., 2d Sess. (1976) __ 13,14 
Note, Attorneys’ Fees and the Eleventh Amendment,

88 Harv. L. Rev. 1875 (1975)---------    19
Notes and Comments, Civil Rights Attorneys'' Fees 

Award Act of 1976, 34 Wash. L. L. Rev. 205 (1977) _ 8,10 
S. Rep. No. 94-1011, 94th Cong., 2d Sess. (1976)-----  7,

8,10,12-13



Jit Hit $#ptme dfoutf tf i t  WM  pistes
O ctober T erm , 1977

No. 76-1660

T errell D on H utto, e t  al ., petitio n er s

v.
R obert F in n e y , et  al .

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
APPEALS FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

QUESTIONS PR E S E N T E D

The United States will discuss the following 
questions:

1. Whether the Civil Rights Attorney’s Fees Awards 
Act of 1976 authorizes an award of attorney’s fees to 
he paid from the funds of a state department of 
correction.

2. Whether the Civil Rights Attorney’s Fees 
Awards Act applies to cases pending on the date of 
its enactment.

( i )



2

C O N STITU TIO N A L PR O V ISIO N  A ND  STA TU TES IN V O LV ED

The Eleventh Amendment to the United States Con­
stitution provides as follows:

The Judicial power of the United States 
shall not be construed to extend to any suit 
in law or equity, commenced or prosecuted 
against one of the United States by Citizens 
of another State, or by Citizens or Subjects 
of any Foreign State,

The Civil Rights Attorney’s Fees Awards Act of 
1976, Pub. L. 94-559, 90 Stat. 2641, provides as 
follows:

In any action or proceeding to enforce a 
provision of sections 1977, 1978, 1979, 1980, 
and 1981 of the Revised Statutes, title IX  of 
Public Law 92-318, or in any civil action or 
proceeding, by or on behalf of the United 
States of America, to enforce, or charging a 
violation of, a provision of the United States 
Internal Revenue Code, or title VI of the 
Civil Rights Act of 1964, the court, in its dis­
cretion, may allow the prevailing party, other 
than the United States, a reasonable attorney’s 
fee as part of the costs.

R.S. 1979, 42 U.S.C. 1983 provides as follows:
Every person who, under color of any stat­

ute, ordinance, regulation, custom, or usage., of 
any State or Territory, subjects, or causes to 
be subjected, any citizen of the United States 
or other person within the jurisdiction thereof 
to the deprivation of any rights, privileges, or



3

immunities secured by the Constitution and 
laws, shall be liable to the party injured in an 
action at law, Suit in equity, or other proper 
proceeding for redress.

IN T E B E S T  OF T H E  U N IT E D  STATES

The Attorney General has responsibility for en­
forcement of a variety of federal civil rights laws, 
including those requiring nondiscrimination in voting 
(42 U.S.C. 1971 et seq.), public accommodations (42 
U.S.C. 2000a et seq.), public facilities (42 U.S.C. 
2000b et seq.), public education (42 U.S.C. 2000c 
et seq.), federally assisted programs (42 U.S.C. 2000d 
et seq.), public employment (42 U.S.C. 2000e et seq.), 
and housing (42 U.S.C. 3601 et seq.). The private 
suit is an essential means of obtaining judicial en­
forcement of civil rights statutes. Alexander v. Gard- 
ner-Denver Go., 415 U.S. 36, 45; Trafficante v. Metro­
politan Life Insurance Co., 409 U.S. 205, 209. 
Such suits will be encouraged if private plain­
tiffs suing state officials pursuant to 42 U.S.C. 1983 
may be awarded attorney’s fees as provided in the 
Civil Rights Attorney’s Fees Awards Act. Accord­
ingly, the United States has a substantial interest in 
the proper interpretation of that Act,

STA TEM EN T

This class action under 42 U.S.C. 1983 challenges as 
unconstitutional the conditions of confinement for in­
mates of penal institutions administered by the 
Arkansas State Department of Correction. Respond­
ents are inmates confined in these institutions; peti­



4

tioners include the Correction Commissioner, the mem­
bers of the Arkansas State Board of Correction, and 
the Superintendents of the Cummins Unit of the De­
partment and the Tucker Intermediate Reformatory 
(Pet. App. 17).

The district court here held the Arkansas prison 
system unconstitutional in certain respects.1 The court 
ruled, inter alia, that the conditions of confinement 
for inmates placed in indefinite punitive isolation con­
stituted cruel and unusual punishment. The court 
ordered the upgrading of the conditions of those 
placed in punitive isolation and prohibited respond­
ents from confining any inmate in punitive isolation 
for more than 30 days. The court awarded respondents 
certain litigation costs, including an attorney’s fee of 
$20,000, to be paid from funds allocated to the De­
partment of Correction. 410 P. Supp. 251 (Pet. App. 
6-92).

On appeal, petitioners challenged the district court’s 
rulings limiting the duration of sentences to punitive 
isolation and awarding respondents attorney’s fees. 
The court of appeals affirmed, and awarded respond­
ents an additional $2,500 in attorney’s fees for serv­
ices on the appeal. 548 P. 2d 740 (Pet. App. 1-6).

1 I t acted pursuant to the court of appeals’ remand in Finney 
v. Arkansas Board of Correction, 505 F. 2d 194 (C.A. 8), affirming 
in part and reversing in part Holt v. Hutto , 363 F. Supp. 194 
(E.D. Ark.). The earlier procedural history of this protracted 
litigation may be. found in Holt v. Sarver, 300 F. Supp. 825 (E.D. 
Ark.), and Holt v. Sarver, 309 F. Supp. 362 (E.D. Ark.), affirmed, 
442 F. 2d 304 (C.A. 8).



5

Petitioners here contest both the 30-day limitation 
on the use of indefinite punitive isolation and the at­
torney’s fees awards.2

IN TRO D U C TIO N  A ND  SU M M A RY  OR A RG U M EN T

Under the “American Rule,” litigants ordinarily 
pay their own attorney’s fees in the absence of statu­
tory or contractual provisions to the contrary. Acting 
pursuant to their inherent equitable powers, federal 
courts have recognized several exceptions to this rule. 
The “bad faith” exception allows a court to shift at­
torney’s fees to a party found to have commenced an 
action or asserted a defense in bad faith, vexatiously, 
wantonly, or for oppressive reasons. F. I). Rich Co. v. 
Industrial Lumber Co., 417 U.S. 116, 129; Vaughn v. 
Atkinson, 369 U.S. 527, 530-531. And imder the “ com­
mon benefit” exception, the cost of litigation is spread

2 We have not had access to the record in this case in sufficient 
time to address the punitive isolation issue. On December 5,1977, 
this Court granted petitioners’ motion to dispense with the print­
ing of an appendix. The record was not filed with the Court until 
December 12, 1977. In addition, we have been advised by counsel 
for respondents that testimony pertinent to the punitive isolation 
issue has not been transcribed. See Pet. App. 90 n. 14. I f  the entire 
record pertinent to this issue becomes available sufficiently in ad­
vance of oral argument, the United States may wish to file a 
supplemental brief that addresses this question. A t this time, we 
take no position on the question whether the district court exceeded 
its1 remedial powers in placing a 30-day limit on the use of punitive 
isolation. We believe, however, that petitioners’ separate challenges 
to the attorney’s fees award—-which present essentially legal ques­
tions——may be considered without the benefit of a review of the 
complete record. Accordingly, this brief will address those 
questions.

-2253-804—78-



6

among those who benefit from the lawsuit. Hall v. 
Cole, 412 U.S. 1, 5 n.7; Mills v. Electric Auto-Lite Go., 
396 U.S. 375, 393r-394. Under a third exception-—the 
“ private attorney general” doctrine—federal courts 
had awarded attorney’s fees to plaintiffs who were 
successful in suits to enforce the provisions of federal 
statutes. See, e.g., Souza v. Travisono, 512 F. 2d 1137 
(C.A. 1), vacated, 423 U.S. 809; Gornist v. Richland 
Parish School Board, 495 P. 2d 189 (C.A. 5) ; Taylor 
v. Perini, 503 F. 2d 899 (C.A 6), vacated, 421 US. 
982; Donohue v. Staunton, 471 F. 2d 475 (C.A. 7), 
certiorari denied, 410 U.S. 955; Fowler v. Schwarz- 
walder, 498 P. 2d 143 (C.A. 8); Bnmdenburger v. 
Thompson, 494 P. 2d 885 (C.A. 9). The attorney’s fees 
awards in such cases were made primarily on the 
theory that the bringing of the litigation had imple­
mented a public policy embodied in the substantive 
statute at issue, and that, accordingly, the plaintiff 
had performed a public service in the capacity of a 
“private attorney general.”

In Alyeska Pipeline Service Go. v. Wilderness 
Society, 421 U.S. 240, the Court rejected the private 
attorney general exception to the American Rule, in 
the absence of statutory authorization. The Court re­
versed an award of attorney’s fees to organizations 
that had instituted litigation to prevent issuance of 
permits by the Secretary of the Interior which were 
required for the construction of the trans-Alaska oil 
pipeline. Although the Court endorsed the “bad faith” 
and “common benefit” doctrines, 421 U.S. at 258-259,



’ 7

it rilled, that the courts’ equitable powers would not 
support an award of attorney’s fees to facilitate 
private enforcement of federal statutory rights. The 
Court stated that (421 U.S. at 269) :

[sjince the approach taken by Congress to 
this issue has been to carve out specific excep- 

' tions to a general rule that federal courts can­
not award attorney’s fees beyond the limits of 
28 U.S.C. § 1923 [permitting the taxing as costs 
of attorney’s and proctor’s docket fees and cer­
tain printing costs], those courts are not free to 
fashion drastic new rules with respect to the 
allowance of attorney’s fees to the prevailing 
party in federal litigation or to pick and 
choose among plaintiffs and the statutes under 
which they sue and to award fees in some cases 
but not in others, depending upon the courts’ 
assessment of the importance of the public 
policies involved in particular cases.

Congress passed the Civil Rights Attorney’s Fees 
Awards Act of 1976, Pub. L. No. 94-559, 90 Stat. 
2641, in response to this Court’s decision in Alyeska? 
The Act permits a federal court, in its discretion, to 
award reasonable attorney’s fees to prevailing parties 
in suits to enforce the provisions of a number of civil 
rights statutes, including R. S. 1979 (42 U.S.C. 1983), 3

3 The Senate Judieiary Committee stated that the purpose of 
the bill was to “remedy anomalous gaps in our civil rights laws 
created by the United States Supreme Court’s recent decision in 
AlyesJca * *. S. Bep. No. 9A-1011, 94th Cong., 2d Sess. 1, 4 
(1976). Accord, 121 Cong. Bee. S14975 (daily ed., August 1,1975) 
(remarks of Senator Tunney).



8

pursuant to which this action was brought.4 The 
Senate Report explains (S. Rep. No. 94-1011, supra, 
at 2) that the Act:

is designed to allow courts to provide the fami­
liar remedy of reasonable counsel fees to pre­
vailing parties in suits to enforce the civil 
rights acts Which Congress has passed since 
1866. * * * AH of these civil rights laws depend 
heavily upon private enforcement, and fee 
awards have proved an essential remedy if 
private citizens are to have a meaningful op­
portunity to vindicate the important Congres­
sional policies which these laws contain.

In many cases arising under our civil rights 
laws, the citizen who must sue to enforce the 
law has little or no money with which to hire a 
lawyer. I f  private citizens are to be able to 
assert their civil rights, and if those who violate 
the Nation’s fundamental laws are not to pro­
ceed with impunity, then citizens must have the 
opportunity to recover what it costs them to 
vindicate these rights in court.

The court of appeals correctly ruled that the Act 
authorized the award of attorney’s fees in this case, to 
be paid from the funds of a state agency. The Act 
specifically authorizes an award in eases—such as this 
one—brought under 42 U.S.C. 1983. Defendants in 
cases brought under Section 1983 typically are state 
officials acting under color of state law, whose legal 
defense ordinarily is provided by the State. Congress 
not only intended the Act to authorize the award of

4 See, generally, The Civil Rights Attorneys’ Fees Awards Act 
of 1976, 34 Wash. L. L. Rev. 205-223 (1977).



9

attorney’s fees in such cases, but also specifically 
anticipated that such awards would normally be paid 
from state funds. Since the Act is a valid exercise of 
Congress’s power under Section 5 of the Fourteenth 
Amendment, it abrogates any Eleventh Amendment 
immunity that the State might otherwise have en­
joyed. Fitzpatrick v. Bitzer, 427 U.S. 445. And, in any 
event, under Edelman v. Jordan, 415 U.S. 651, 668 the 
attorney’s fees award has only an “ancillary effect” on 
the state treasury, and therefore under the rationale 
of Ex parte Young, 209 U.S. 123, falls outside the 
prohibitions of the Eleventh Amendment. Moreover, 
for the reasons discussed in the brief for the United 
States as amicus curiae in Zurcher v. The Stanford 
Daily, No. 76-1484, and Bergna v. The Stanford 
Daily, 'No. 76-1600, the fact that this action was com­
menced before the passage of the Act does not defeat 
the award in this case.

ARGUMENT

THE CIVIL RIGHTS ATTORNEY’S FEES AWARDS ACT OF 19 76 
AUTHORIZES AN AWARD OF ATTORNEY’S FEES IN THIS CASE

The court of appeals correctly ruled that the Civil 
Rights Attorney’s Fees Awards Act of 1976 author­
ized an award of attorneys’ fees in favor of the re­
spondents (Pet. App. 4-5).5 The Act specifically 
authorizes an award of attorney’s fees to “the pre­
vailing party” in cases such as this brought under 42

5 The district court awarded attorney’s fees to respondents on the 
theory that the instant case is “markedly different in quality from 
Alyeska and also that it falls within the ‘bad faith’ exception to 
the American Rule recognized in Alyeska” (Pet. App. 86). Since



1 0

U.S.C. 1983.6 Neither the fact that the fees are to be 
paid out of state funds nor the fact that they cover 
work performed in part before the passage of the Act 
affects the propriety of the award.

A. T H E  ELEV EN TH  A M EN D M EN T DOES NOT BAR A N  AWARD OF ATTOR­

N E Y ’S EEES TO BE PAID PROM STATE FU N D S PU RSU A N T TO T H E  CIVIL 

EIG H TS ATTORNEY’S FEES AWARDS ACT

1. As a Valid Exercise of Congressional Power Pursuant to Sec­
tion Five of The Fourteenth Amendment, The Act Abrogates 
A ny Eleventh Amendment Immunity The State Might Other­
wise Have Enjoyed

In  Fitzpatrick v. Bitzer, 427 U.S. 445, the Court 
held that the Eleventh Amendment did not prohibit 
the award of attorney’s fees to “be paid out of the 
state treasury” (id. at 451) to plaintiffs who were 
successful in an employment discrimination suit 
brought against state officials pursuant to Title Y II of 
the Civil Rights Act of 1964, 78 Stat. 253, as amended,

the Civil Rights Attorney’s Fees Awards Act of 1976 was enacted 
while the case was pending on appeal, the court of appeals found 
it unnecessary to pass on the bad faith justification for the award 
although it noted that “the record fully supports the finding of 
the district court” on that question (Pet. App. 5). The existence of 
the Act similarly makes it unnecessary for this Court to consider 
whether the award of attorney’s fees was justified by petitioners’ 
conduct (see infra, p. 21).

6 Respondents are “the prevailing party” within the meaning of 
the Act. They have prevailed on most of the issues that were 
resolved during the period covered by the award, including issues 
that are not being contested in this Court. An award of counsel 
fees is appropriate under the Act even when the prevailing party 
“ultimately does not prevail on all issues.” S. Rep. No. 94-1011, 
Supra, at 5; 34 Wash. L. L. Rev. at 218-219.



11

42 U.S.C. (and Supp. Y) 2000e et seq.7 As amended in 
1972, Title Y II specifically authorizes the award of 
backpay and attorney’s fees in suits against state and 
local governments. This Court reasoned that the 
Eleventh Amendment and the principle of state sov­
ereignty it embodies 8 are limited by the provisions of 
Section 5 of the Fourteenth Amendment, and that 
Congress, in authorizing backpay and attorney’s fees 
awards against the states under Title YII, was acting 
pursuant to its Fourteenth Amendment enforcement 
authority.

The rationale of Fitzpatrick v. Bitzer is fully ap­
plicable here. Like Title YII, the Civil Rights At­
torney’s Fees Awards Act was enacted pursuant to

7 The Court distinguished Edelman v. Jordan, 415 U.S. 651, in 
which the Eleventh Amendment was held to bar a private federal 
action for retroactive damages for the wrongful denial of welfare 
benefits, on the ground that the statutes involved in >Eddmcm did 
not show any congressional intent to deprive the states of their 
Eleventh Amendment immunity, and thus “were incapable of sup­
porting the predicate for a claim of waiver on the part of the 
State.” Fitzpatrick v. Bitzer, supra, 427 U.S. at 452. This Court- 
found a similar absence of congressional intention to limit state im­
munities in Employeesv. Missouri Public Health DepH., 411 U.S. 
279, upon which petitioners rely. In  contrast, here, as in Fitz­
patrick v. Bitzer, the congressional intent to limit that immunity 
is clear.

8 Although the Amendment, quoted supra at p. 2, explicitly 
prohibits only suits against states in federal court brought by 
citizens of other states or by citizens or subjects of any foreign 
state, this Court has interpreted it as preserving the state’s sover­
eign immunity, and thus precluding also unconsented actions 
brought by a citizen of the state being sued. Edelman v. Jordan, 
supi-a; Employees v. Missouri Public Health Dept., supra; 
Parden v. Terminal R. Co., 377 U.S. 184; Great Northern Life Ins. 
Co. v. Read, 322 U.S. 47; Hans v. Louisiana, 134 U.S. 1.



12

Congress’ powers under Section 5 of the Fourteenth 
Amendment (as well as its similar power to enforce 
the Thirteenth Amendment). See, e.g., S. Rep. No. 
94-1011, supra, at 5. Like the backpay and attorney’s 
fees provisions of Title VII, then, the Attorney’s 
Fees Awards Act limits the Eleventh Amendment 
principle of state sovereignty.9

That Congress intended to subject states and their 
agencies to the payment of attorney’s fees in cases 
against their officials is clear from the legislative his­
tory of the Act. The Senate repeatedly tabled amend­
ments that would have exempted state and local 
governments from the Act’s requirements. 122 Cong. 
Rec. S16431-S16434 (daily ed., September 22, 1976) ; 
122 Cong. Rec. S16567 (daily ed., September 24, 
1976); 122 Cong. Rec. S16656, S16657 (daily ed., Sep­
tember 27, 1976). The Senate Report accompanying 
the Act provides (S. Rep. No. 94-1011, supra, at 5).

As with cases brought under 20 U.S.C.
§ 1617, the Emergency School Aid Act of 1972,

9 The lower federal courts have generally agreed that the Act 
abrogates the states’ Eleventh Amendment immunity. See Gates v. 
Collier, 559 F. 2d 241 (C.A. 5); Bond v. Stanton, 555 F. 2d 172 
(C.A. 1); Rainey, v. Jackson State College, 551F. 2d 672 (C.A. 5); 
La Raza Uni-da o f Southern Alameda County v. Vople, NT). Cal, 
No. C-71-1166 EPF, decided September 29,1977; Southeast Legal 
Defense Group v. Adams, 436 F. Supp. 891, 893-894 (D. O re.); 
Guajardo v. Estelle, 432 F. Supp. 1373 (S.l). Tex.) ; Gary IF. v. 
State of Louisiana, 429 F. Supp. 711 (E.D. L a .) ; Wade v. Missis­
sippi Co-Op Extension Service, 424 F. Supp. 1242 (NT). Miss.). 
But see SJceham v. Board o f Trustees of Bloomsburg State College, 
436 F. Supp. 657, 666-667 (M.D. P a .) ; Shannons. United Slates 
Department of Housing and Urban Development, 433 F. Supp. 
249 (E.D. Pa.).



13

defendants in these eases are often State or 
local bodies or State or local officials. In such 
cases it is intended that the attorney’s fees, like 
other items of costs, will be collected either di­
rectly from the official, in his official 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) [footnotes omitted].

The pertinent House Report, H.R. Rep. Ho. 94-1558, 
94th Cong., 2d Sess. 7 (1976), provides that:

[Government officials are frequently the de­
fendants in eases brought under the statutes 
covered by H.R. 15460. See, e.g., Brown v. 
Board of Education, [347 H.S. 483]: Gau- 
treaux v. Hills, [sic] [425 U.S. 284]; O’Connor 
v. Donaldson, [422 U.S. 563]. Such govern­
mental entities and officials have substantial re­
sources available to them through funds in the 
common treasury, including the taxes paid by 
the plaintiffs themselves. * * * The greater re­
sources available to governments provide an 
ample base from which fees can be awarded to 
the prevailing plaintiff in suits against govern­
mental officials or entities [footnote omitted].

And Representative Drinan described the relationship 
between the Act and the Eleventh Amendment as fol­
lows (122 Cong. Rec. H12160 (daily ed., October 1, 
1976)):

The question has been raised whether allow­
ing fees against State governments in suits 
properly brought under the covered statutes 
would violate the 11th amendment. That amend­



14

ment limits the power of the Federal courts to 
entertain actions against a State. This issue is 
no longer seriously in dispute after the recent 
Supreme Court decision in Fitzpatrick against 
Bitzer. Since this bill is enacted pursuant to the 
power of Congress under section 2 of the 13th 
amendment and section 5 of the 14th amend­
ment, any question arising under the 11th 
amendment is resolved in favor of awarding 
fees against State defendants.

See also H.R. Rep. Ro. 94-1558, supra, at 7 n. 14.
Petitioners accurately note (Br. 8) that Congress 

did not provide for the naming of States and their 
agencies as defendants in cases brought under 42 
U.S.C. 1983.10 But that does not preclude the award 
of attorney’s fees to be paid from state funds in cases 
successfully brought against state officials under that 
statute. That is the result Congress specifically in­
tended in the legislative history quoted above.

In doing so, Congress correctly recognized that 
there is no requirement that a state must be a named 
defendant for the court to issue an order requiring 
the expenditure of state funds. In  Fitzpatrick v. 
Bitzer, supra, on which Congress relied, this Court

10 42 U.S.C. 1983, quoted supra at pp. 2-3, authorizes only suits 
against “persons” acting under color of law. States and their 
agencies are not “persons” within the meaning of Section 1983. Cf. 
Fitzpatrick v. Bitzer, supra, 427 U.S. at 452; Monroe v. Pape, 365 
U.S. 167, 187-191. In  contrast, the Attorney’s Fees Awards Act 
does not refer to “persons”—it simply provides that the court may 
award the “prevailing party” a reasonable attorney’s fee as part 
of the costs. That is precisely what was done here.



15

upheld an award of backpay and attorney’s fees to 
be paid from state funds, although neither the state 
nor any state agency was a named defendant. See 
United States v. Donaldson, 429 II.S. 413, 448 n. 4, 
451.“ States commonly bear the costs of litigation in 
suits against state officials in their official capacities.11 12 
Moreover, since the state confers upon its officers the 
authority to act on its behalf, it is entirely appropriate 
to require the state to pay attorney’s fees in civil 
rights suits challenging those actions, regardless of 
whether the state or any of its agencies has been 
named as a defendant.

2. A n  Award Of Attorney's Fees Has Only A n  Ancillary Effect 
On The State Treasury

Wholly apart from the fact that Congress was ex­
ercising its Thirteenth and Fourteenth Amendment 
enforcement powers against the states when it enacted 
the Attorney’s Fees Awards Act, the payment of coun­
sel fees has in any event only an “ancillary effect” on 
the state treasury under the rationale of Edelman v. 
Jordan, 415. U.S. 651, and therefore does not abrogate 
the state’s sovereign immunity preserved by the Elev­
enth Amendment.

11 This Court’s decisions in Graham y. Richardson, 403 U.S. 365, 
367, 369, and Goldberg v. Kelly, 397 U.S. 254, 261, also resulted in 
increased state expenditures for welfare programs, even though 
the named defendants -were state and local officials, not the states 
or any of their agencies.

12 See, e.g., Ark. Stats., 1947 § 12-712 (1968 Repl.) (directing 
the Attorney General to represent “all state officers * * * in all liti­
gation where the interests of the state are involved”) ; Ann. Cal. 
Gov. Code § 825 et seq. (West Cum. Supp. 1977).



16

Under the long-standing doctrine of Ex parte 
Young, 209 U.S. 123, equitable relief may be secured 
against the enforcement of an unconstitutional state 
statute notwithstanding any incidental drain on the 
state treasury resulting from the cost of compliance 
with the court’s mandate. Edelman v. Jordan, supra, 
415 U.S. at 668. This Court has also held that litiga­
tion costs may be taxed against the states. Fairmont 
Creamery Co. v. Minnesota, 275 U.S. 70. We submit 
that attorney’s fees are an incidental cost of securing 
compliance with federal laws analogous to other litiga­
tion costs. They are not, as petitioners contend, the 
equivalent of money damages designed to redress or 
punish past misconduct, and thus within the purview 
of the Eleventh Amendment.

The Court in Edelman v. Jordan, supra, while ac­
knowledging that “the difference between the type of 
relief barred by the Eleventh Amendment and that 
permitted under. Ex parte Young will not in many 
instances be that between day and night” (415 U.S. 
at 667), nonetheless provided considerable guidance 
for distinguishing the two by describing the salient 
characteristics of each. The sort of relief that is barred 
is “a liability which must be paid from public funds” 
(id. at 663) ; “an accrued monetary liability which 
must be met from the general revenues” (id. at 
664); “payment of a very substantial amount of 
money which * * * should have been paid, but was 
not” (ibid.) ; “ ‘use [of] state funds to make repara­
tion for the past’ ” (id. at 665) ; “ retroactive pay­
ments” (id. at 666 n. 11) ; and “payment of state



17

funds * * * as a form of compensation” (id. at 668). 
These characteristics lead to the general conclusion 
that money relief is barred when “it is in practical 
effect indistinguishable in many aspects from an 
award of damages against the State” (ibid.).

An award of attorney’s fees does not share these 
characteristics. I t  is not akin to damages: it is in­
tended neither to compensate the victims of, nor to 
punish the state for, past illegal conduct.

Rather, the award of counsel’s fees is much closer 
to the sort of draw upon the state treasury, permitted 
by Ex parte Young and Edelman v. Jordan, that 
comes about as the “necessary consequence of compli­
ance in the future with a substantive federal-question 
determination” (415 U.S. at 668; see also id. at 665). 
While the payment of attorney’s fees is not identical 
to the increased funding of state programs required 
as a practical matter as a result of this Court’s deci­
sions in Graham v. Richardson, 403 U.S. 365, and 
Goldberg v. Kelly, 397 U.S. 254 (see 415 U.S. at 667- 
668), the differences militate in favor of the inclusion 
of attorney’s fees among the genre of awards allow­
able. As the Court stated in Edelman v. Jordan, “the 
fiscal consequences to state treasuries in these cases 
were the necessary result of compliance with decrees 
which by their terms were prospective in nature” (415 
U.S. at 667-668). The prospect of an award of coimsel 
fees is in many cases a necessary prerequisite to the 
bringing of the suit itself. I f  the Eleventh Amend­
ment does not protect the states from having “to spend 
money from the state treasury” “ in order to shape



18

[its] conduct to the mandate of the Court’s decrees” 
(415 U.S. at 668), then surely it should not be the 
basis for defeating such suits in the first place, which 
would be the likely result of a rule barring awards of 
attorney’s fees against the states. Like the other costs 
of the litigation, the fee award is merely part of the 
cost of bringing the state into future compliance by 
means of the litigation itself. In  short, such an award, 
like the fiscal consequence to the state resulting from 
the need to comply with a judicial decree, has only 
“an ancillary effect on the state treasury [which] is a 
loermissible and often an inevitable consequence of 
the principle announced in Ex parte Young” (ibid.).is 13

13 Although the circuits are split on the issue, most agree that an 
award of attorney’s fees to be paid by the state is not barred by the 
Eleventh Amendment. See, e.g., Souza v. Travisono, 512 F. 2d 1137 
(C.A. 1), vacated, 423 U.S. 809; Glass v. Norton, 505 F. 2d 123, 
125 (C.A. 2); Jordan v. Fusari, 496 F. 2d 646, 651 (C.A. 2); Sims 
v. Amos, 340 F. Supp. 691 (M.D. Ala.) affirmed, 409 U.S. 942. 
The Seventh Circuit follows the same rule, finding Sims v. Amos, 
supra, controlling, Bond v. Stanton, 528 F. 2d 688, vacated and 
remanded for further consideration in light of Pub. L. 94-559, 
429 U.S. 973, as does the Ninth, Brandenbwrger v. Thompson, 494 
F. 2d 885. See also Thonen v. Jenkins, 517 F. 2d 3 (C.A. 4); Bos­
ton Chapter N.A.A.C.P ., Inc. v. Beecher, 504 F. 2d 1017 (C.A. 1), 
certiorari denied, 421 U.S. 910.

The Sixth Circuit has held that a state’s immunity bars an award 
of attorney’s fees, Jordon v. Gilligan. 500 F. 2d 701, certiorari 
denied, 421 U.S. 991, relying on Skehan v. Board of Trustees of 
Bloomsburg State College, 501 F. 2d 31 (C.A. 3), vacated and 
remanded for further consideration in light of Alyeska Pipeline 
Service Co. v. Wilderness Society, supra, and Wood v. Strickland, 
420 U.S. 308, 421 U.S. 983. A subsequent Sixth Circuit decision to 
like effect, Taylor v. Perini, 503 F. 2d 899, was vacated and re­
manded for further consideration in light of Alyeska Pipeline 
Service Co. v. Wilderness Society, supra, 421 U.S. 982. See, also,



19

As Mr. Justice Stevens noted in his concurrence in 
Fitzpatrick v. Bitzer (427 U.S. at 460), this result in 
essence merely restates the doctrine of Fairmont 
Creamery Co. v. Minnesota, 275 U.S. 70, where the 
state attempted to assert its sovereignty as a bar to an 
award of costs against it. This Court held that it was 
justified “in treating the state just as any other liti­
gant and in imposing costs upon it as such” (id. at 77) 
since the case was brought to the Court not “by the 
state’s consent but by virtue of a law, to which it is 
subject. Though a sovereign, in many respects, the 
state when a party to litigation in this Court loses 
some of its character as such” (275 U.S. at 74). I t 
should be no different in any federal court. “ [T]o the 
extent states and state officials are, under our federal 
system, amenable to suit in federal courts, they should 
be responsible for costs and fees incidental to litiga­
tion to the same degree as others” (Souza v. Travi- 
sono, 512 F. 2d 1137, 1140 (C.A. 1), vacated, 423 U.S. 
809).14

Named Individual Members of San Antonio Conservation Society 
v. Texas Highway Dist., 496 F. 2d 1017 (C.A. 5). See, generally, 
Note, Attorneys’ Fees and the Eleventh Amendment, 88 Harv. L. 
Eev. 1875 (1975).

14 The State of California, in its brief amicus curiae- (p. 6), states 
that Sprague v. Ticonic Bank, 307 U.S. 161, establishes that an 
award of attorney’s fees is “quite unlike” an award of taxable 
costs. But that case simply held that attorney’s fees and taxable 
costs were sufficiently distinct so that a claim for the latter did 
not constitute a waiver of reimbursement for the former (id. at 
168). Nothing in Sprague is inconsistent with our contention that 
at least where, as here, the underlying statute provides for an 
award of attorney’s fees, there is no analytical difference between 
costs and attorney’s fees for purposes of considering whether they 
are allowed by E x parte Yowng or barred by the Eleventh Amend-



20

This Court has already affirmed a decision reach­
ing this result, Sims v. Amos, 340 F. Supp. 691 (M.D. 
Ala.), summarily affirmed, 409 U.S. 942.15 There the 
district court taxed attorney’s fees against the state., 
ruling that a state was without immunity in suits 
brought under the doctrine of Ex parte Young. In  its 
Jurisdictional Statement the state protested the award 
as an unlawful abrogation of its sovereign immunity, 
and this Court’s affirmance apparently rejected that
ment, See Souza v. Travisono, supra, 512 F. 2d at 1140; Glass v. 
Norton, supra, 505 F. 2d at 125; Taylor v. Per ini, supra, 503 F. 2d 
at 909 (Edwards, J., dissenting). Indeed, the applicable statutory 
provision here, the Attorney’s Fees Awards Act, provides for an 
award of attorney’s fees “as part of the costs.”

15 Petitioners incorrectly suggest (Br. 17) that Sims v. Amos 
is undercut by this Court s summary affirmance, 421 IT.S. 972, of 
thedenial of attorney’s fees in Murgia v. Mass. Bd. of Retirement, 
386 F. Supp. 179 (D. Mass.). In  Murgia, a state police officer 
challenged as unconstitutional a statute that required his retire­
ment solely because he had reached age 50. A three-judge court 
held the statute unconstitutional (376 F. Supp. 753), but refused 
to award counsel fees in the absence of a statute permitting the 
award, both because of the Eleventh Amendment “and as a matter 
of discretion” (386 F. Supp. at 182). This Court’s summary affirm­
ance of that refusal is not a significant precedent on the question 
whether an award of counsel fees to be paid by a state agency is 
barred by the Eleventh Amendment, since the Court may have 
concluded that the case did not come within any of the exceptions 
to the “American Bide” permitting the awarding of counsel fees 
without specific statutory authorization or that, even if it did, 
it was within the trial court’s discretion to decline to make such 
an award. (This Court subsequently reversed the district court’s 
judgment on the merits, 427 U.S. 307.)



2 1

claim on the merits. Of. Hicks v. Miranda, 422 U.S. 
332, 344-345.16
B. T H E  ACT A PPLIES TO CASES SU C H  AS T H IS , PEN D IN G  ON T H E  DATE OF

EN A C T M E N T

This case was instituted in April 1969; the award of 
counsel fees at issue here was for legal services ren­
dered after the court of appeals’ remand in Novem­
ber 1974 (Pet. App. 14).17 The fact that a substantial 
part of the services were completed before the Act’s 
passage does not affect the validity of the award. We 
have discussed in our brief amicus in Zurcker v. Stan­
ford Daily, and Bergna v. Stanford Daily, Nos. 76- 
1484 and 76-1600, the reasons why we believe the Act 
authorizes payment for services rendered before it 
was enacted, under the principles of Bradley v. Rich­
mond School Board, 416 U.S. 696.18

16 The Seventh Circuit so held in Bond v. Stanton, supra, note 13. 
Brandenburger v. Thompson, supra, 494 F. 2d at 888, also relied 
on this Court’s affirmance in Sims v, Amos in holding attorney’s 
fees allowable. See also Taylor v. Perini, supra, 503 F. 2d at 907- 
908 (Edwards, J., dissenting) (affirmance in Sims binding); 
Nexoman v. State o f Alabama, 522 F. 2d 71, 72-80 (C.A. 5) 
(Gewin, Brown, Wisdom, Thornberry, Goldberg, JJ., dissenting 
from remand for reconsideration of attorney’s fees issue) 
(semble). Contra, Shehan v. Board of Trustees of Bloomsbury 
State College, supra, 501 F. 2d at 42 n. 7; Jordan v. Gilligan, 
supra, 500 F. 2d at 706-709; Taylor v. Perini, supra, 503 F. 2d at 
905 (by implication).

17 In  1973, the district court allowed respondent’s then counsel 
an $8,000 fee, which was paid by the Department of Correction 
(Pet. App. 82).

18 We are sending the parties to this litigation a copy of our 
amicus brief in Stamford Daily.



22

CONCLUSION

The award of attorney’s fees should he affirmed. 
Respectfully submitted.

W ade H. M cCree, Jr., 
Solicitor General. 

D rew  S. D ays, III , 
Assistant Attorney General. 

W alter W . B arnett , 
D e n n is  J. D im sey ,

Attorneys.
J anuary  1978.

U.S. SOVERHHEHT f» l8 T I» «  0FFIC J.W 7*