Jordon v. Gilligan Petition for Writ of Certiorari

    I n t h e

CEnurt nf %  lu tte i* States
O ctober T erm , 1974 

No.................

S a m u el  J .  J ordon, e t al.,
Petitioners

v.

J o h n  J .  G illig a n , e t  al.

PETITION FOE A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR 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



INDEX

Opinions Below........................................       1

Jurisdiction .......................................    2

Question Presented ........................................................  2

Constitutional and Statutory Provisions Involved........ 2

Statement of the Case .........................    3

Reasons for Granting the Writ .....................................  6

Conclusion .......    20

A ppen d ix —

District Court Order Granting Applications for
Attorneys’ Pees and Expenses ..............................  la
District Court Order Directing That Plaintiff’s 
Attorneys’ Fees and Expenses Be Taxed as Costs 2a
Opinion and Order Denying Defendants’ Motion 
for Stay of Execution and Vacating Attachment.... 3a
Opinion and Order Denying Defendants’ Rule 
60(b) Motion ..........................................................  8a
Opinion of United States Court of Appeals April 
25, 1974 ........   10a
Opinion of United States Court of Appeals July 
18, 1974 ..................................................................... 21a

PAGE



11

T able op A u th o b ities

Cases: page

Avco Corp. v. Aero Lodge, 390 U.S. 557 (1968) ..........  9

Beens v. Erdahl, (D. Minn., No. 4-71-Civ. 151) ..........  9
Bradley v. School Board of the City of Richmond, 40

L. Ed. 2d 476 (1974) ...................   14
Brandenburger v. Thompson, 494 F.2d 885 (9th Cir. 

1974) ............................................................................ 8,11

Clark v. Barnard, 108 U.S. 436 (1883) ................. ....... 17
Chicago, etc. R.R. Co. v. United Transportation Union,

402 U.S. 570 (1971) ....................................................  16
Chisholm v. Georgia, 2 U.S. (2 Dali.) 419 (1793) ........  16
Class v. Norton, 376 F. Supp. 496 (D. Conn. 1974) ....... 9

Dick Press Guard Mfg. Co. v. Bowen, 229 F.193, 196 
(N.D.N.Y. 1915) a fd  229 F.575 (2d Cir. 1915), cert.
denied 241 U.S. 671 (1915) .........................................  17

Dillenberger v. Florida Probation and Parole Commis­
sion, Civ. No. 73-66 (N.D. Fla.) ..................................  14

Eagle Mfg. Co. v. Miller, 41 F. 351 (S.D. Iowa 1890) .... 18
Ede’lman v. Jordan, 39 L. Ed. 2d 662 (1974) .......... 7,8,12,

13,15,19
Ex Parte Young, 209 U.S. 123 (1908) ....6, 7, 9,10,12,15,16

Fairmont Creamery Co. v. Minnesota, 275 U.S. 70
(1927) .................................................... 6,11,12,16,18,19

First National Bank v. Dunham, 471 F.2d 712 (8th Cir. 
1973) ............................................................................ 15

Gates v. Collier, 489 F.2d 298 (5th Cir. 1973) ....8, 9,11,19
General Oil v. Crain, 209 U.S. 211 (1908) .....................  13
Graham v. Marshall, Civ. No. T-73-77 (N.D. Fla.) ........ 14



I l l

Hall v. Cole, 412 TT.S. 1 (1973) .....................................  15
Hoitt v. Vitek, 495 F.2d 219 (1st Cir. 1974) ................ 8

Jordan v. Fusari, 496 F.2d 646 (2d Cir, 1974) ....7, 9,11,12 
Jurisdictional Statement, No. 72-12, October Term, 1972 9

Kerns v. Jordon, cert. den. 42 U.S.L.W. 3468 (1974) .... 4
Kirkland v. New York State Dept, of Correctional Ser­

vices, 374 F. Supp. 1361 (S.D.N.Y. 1974) ..................9,11

LaRaza Unida v. Volpe, 488 F.2d 559 (9th Cir. 1973)
8, 9,12

Liberies v. Daniel, No. 73-C-3217 (N.D. 111.) ................- 14

Manning v. Gilligan, No. 73-453, appeal dismissed 42
U.S.L.W. 3332 (1973) ................ ...... -......-............ -....  4

Milburn v. Huecker, (6th Cir. Nos. 73-1259 and 73-1430)
(August 5, 1974) ..........................................................8,11

Mills v. Electric Auto-Life Company, 376 TJ.S. 375

PAGE

(1970) ................ .........-............................................... b
Missouri v. Fiske, 290 TJ.S. 18 (1933) ......................... 17
Mitchum v. Foster, 407 H.S. 225 (1972) ....................... 16
Monroe v. Pape, 365 U.S. 167 (1961) ......................... 18

N.A.A.C.P. v. Allen, 340 F.Supp. 703 (M.D. Ala. 1972) 9
Named Individual Members of San Antonio Conserva­

tion Society v. Texas Highway Dept., 496 F.2d 1017
(5th Cir. 1974) ................. —........-.........-.................... 8

Natural Resources Defense Council v. Environmental 
Protection Administration, 484 F.2d 1331 (1st Cir.
1973)   ......... ................. -........... -----........................ - 8

Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 
(1968) ..........................................................................6,15



9
Newman v. State of Alabama, 349 F.Supp, 278 (M.D.

Ala. 1972) .....................................................................
Norris v. Jordan, No. 71-1109 and No. 71-1439, appeal 

dismissed 409 U.S. 811 (1972), rehearing den. 409
U.S. 1029 ........................................... ........... ....... ......  4

Norwood v. Harrison, No. WC 70-53-K (N.D. Miss.) .... 14

Ocean Accident & Guarantee Corp. v. Felgemaker, 143 
F.2d 950 (6th Cir. 1944) ...... .................................... 17,18

Pegues v. Mississippi State Employment Services, No.
72-4-S (N.D. Miss.) .............. ..................... ................  14

Pyramid Lake Piute Tribe v. Morton, No. 74-342 ........  6

Scheuer v. Rhodes, 40 L.Ed. 2d 90 (1974) ................... . 7
Sims v. Amos, 340 F.Supp. 691 (M.D. Ala. 1972), aff’d

409 U.S. 942 (1972) .............................. ...........9,10,11,19
Sinrock v. Obara, 320 F.Supp. 1098 (D. Del. 1970) .....9,12
Skehan v. Board of Trustees of Bloomsburg State Col­

lege, (3d Cir., No. 73-1613) (May 3, 1974) .......8, 9,11,13
Souffront v. Compagnie des Suceries, 217 U.S. 475

(1910) .......................................................................... 17
Souza v. Travisono (No. 5261, D.R.I.) ......................... . 9
Sprague v. Ticonic National Bank, 307 U.S. 161 (1939) 16
Stolberg v. Members of the Board of Trustees for 

State College of Connecticut, 474 F,2d 485 (2d Cir. 
1973) ............................................................................ 7, 8

Taylor v. Perini, 359 F.Supp. 1185 (N.D. Ohio 1973)
5, 9,10

Utah v. United States, 304 F.2d 23 (10th Cir. 1962)
cert, denied 371 U.S. 828 ............................................. 11

Vanguard Justice Society v. Mandel, No. 74-71-K (D. 
Md.) 14



V

PAGE

Virginia Coupon Cases, 114 U.S. 269 (1885) ................ 16

Wainwright v. State of Florida Department of Trans­
portation, Civ. No. 73-42 (N.D. Fla.) ............... ......... 14

Welch v. Rhodes, (S.D. Ohio, No. 69-249) vacated 492
F.2d 1244 (6th Cir. 1974) ........ ..................................  9

Wyatt v. Stickney, 344 F.Supp. 373 (M.D. Ala. 1972) .... 9

Statutes:
7 TJ.S.C. §2305 .............................. ..... ............... ...........  16
12 U.S.C. §1975 ............................................................  16
15 U.S.C. §15 ................................................................  16
15 U.S.C. §72 ...............    16
15 U.S.C. §78(a) .........................................   16
15 U.S.C. §298(b) ............   16
15 U.S.C. §1640 .........................    16
20 U.S.C. §1617 ............................................................. 16
28 U.S.C. §1254(1) .................    2
28 U.S.C. §1920(1) .....................      19
28 U.S.C. §1920(2) ..................................   19
28 U.S.C. §2281 .........................................................  4
33 U.S.C. §1365 (d) ....................................     16
42 U.S.C. §1983 ............................................................. 2
42 U.S.C. §2000a-3(a) ..................................................  16
42 U.S.C. §2000e-5(g) .................................................... 16
42 U.S.C. §3612(e) ......    16



vi

49 U.S.C. §8.................................................................... 16
49 TJ.S.C. §16(2) ...........................................    16
49 TJ.S.C. §908(e) .........................................................  16
86 Stat. 103 ...............................................................    13

Other Authorities:

6 Moore’s Federal Practice j[54.77[2] .........................15,16

ten Broek, Equal Under Law (1965) ............................  17

PAGE

Graham, “The Early Anti-Slavery Backgrounds of the 
Fourteenth Amendment”, 1950 Wis. L. Rev. 479 17

Graham, “the ‘Conspiracy Theory’ of the Fourteenth 
Amendment,” 47 Yale L.J. 371 (1938) .....................  17

Brief Amicus Curiae of the N.A.A.C.P. Legal Defense 
and Educational Fund, Inc., in Edelman v. Jordan 
No. 72-410 ................................................................... 17



In the

imitmiu' ( ta r t  of %  lnitr& ^tatrs
O ctober T erm , 1974 

No.................

S a m u el  J .  J ordon, e t  al.,

v.
Petitioners

J o h n  J. G illig an , e t  al.

PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

The petitioners, Samuel Jordon et al., respectfully pray 
that a Writ of Certiorari issue to review the judgment and 
opinion of the United States Court of Appeals for the 
Sixth Circuit entered in this proceeding on July 18, 1974.

Opinions Below

The opinion of the Court of Appeals of July 18, 1974, 
is not yet reported, and is set out in the Appendix hereto, 
pp. 21a-35a. The opinion of the Court of Appeals of 
April 25, 1974, is not yet reported, and is set out in the 
Appendix hereto, pp. 10a-20a. The opinion of the Dis­
trict Court of June 12, 1973 is not reported, and is set 
out in the Appendix hereto, pp. 8a-9a. The opinion 
of the District Court of March 9, 1973, is not reported, 
and is set out in the Appendix hereto, pp. 3a-7a.



2

Jurisdiction

The judgment of the Court of Appeals was entered on 
July 18, 1974. Jurisdiction of this Court is invoked under 
28 U.S.C. §1254(1).

Question Presented

Does the Eleventh Amendment prohibit the award of 
costs, including attorneys’ fees, against a state or its em­
ployees in their official capacities, in litigation to enforce 
the Fourteenth Amendment?

Constitutional and Statutory Provisions Involved

The Eleventh Amendment to the United States Consti­
tution provides:

The judicial power of the United States shall not be 
construed to extend to any suit in law or equity, com­
menced or prosecuted against one of the United States 
by citizens of another State, or by citizens or subjects 
of any foreign state.

The Fourteenth Amendment to the United States Con­
stitution provides in pertinent p a rt:

Section 1. All persons born or naturalized in the 
United States, and subject to the jurisdiction thereof, 
are citizens of the United States and of the State 
wherein they reside. No State shall make or enforce 
any law which shall abridge the privilege or immun­
ities of citizens of the United States; nor shall any 
State deprive any person of life, liberty, or property,



3

Section 5. The Congress shall have power to enforce, 
by appropriate legislation, the provisions of this ar­
ticle.

Section 1983, 42 U.S.C., provides:
Every person who, under color of any statute, or­
dinance, 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 immunities secured by the Con­
stitution and laws, shall be liable to the party injured 
in an action at law, suit in equity, or other proper 
proceeding for redress.

Statement o f the Case

Petitioner Samuel Jordon commenced this class action 
in November, 1971, to challenge the constitutionality of 
a plan reapportioning the Ohio legislature. The complaint 
named as defendants several state officials in their official 
capacities, including the Governor and the members of 
the Ohio Apportionment Board, a state body which had 
drawn the new district lines. Petitioner claimed that the 
district lines in question violated the Fourteenth and 
Fifteenth Amendments in that (1) there were impermis­
sibly great differences in the size of the districts (2) the 
voters in certain portions of the state were disenfran­
chised because they were not included in any district at 
all, and (3) the districts had been racially gerrymandered 
to minimize the voting strength of minority voters.

without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.

* # #



4

Since the action involved the constitutionality of a stat­
ute of statewide application, a three judge court was duly 
convened. 28 U.S.C. §2281. After a hearing on the merits 
the District Court on December 3, 1971, ruled the reap­
portionment plan unconstitutional because of the disparate 
size of the districts and because certain areas were not 
included in any House or Senate District. The District 
Court was thus not required to decide whether the plan 
was also invalid as an attempt to discriminate on the basis 
of race. The defendants took no appeal from this decision, 
and on March 13, 1972, a new redistricting plan submitted 
by the defendants was approved by the District Court. 
Several intervenors sought without success to overturn the 
District Court’s decision on the merits. See Norris v. 
Jordon, Nos. 71-1109, 71-1439, appeal dismissed 409 U.S. 
811 (1972), rehearing den. 409 U.S. 1029; Manning v. Gil- 
ligan, No. 73-453, appeal dismissed 42 U.S.L.W. 3332
(1973) ; Kerns v. Jordon, cert. den. 42 U.S.L.W. 3468
(1974) .

On April 19, 1972, petitioner moved for an award of 
counsel fees and expenses. The defendants did not oppose 
the request, and the matter was referred to the original 
District Court judge, a decision by the full panel not being 
required on such a question. On May 19, 1972, Chief Judge 
Battisti approved the request and ordered that counsel 
fees and expenses totaling $27,272.65 be paid by “the State 
of Ohio, through” the named defendants “collectively, in 
their official capacities, as the persons responsible for ap­
portioning the State of Ohio.” P. la. No appeal was taken 
from this decision.

Eight months passed and the judgment remained un­
paid. On January 17, 1973, the District Court issued a 
new order directing that “costs, including Plaintiff’s at­
torneys’ fees and expenses as previously ordered paid in



5

the amount of $27,272.65, shall be taxed as costs against 
the State of Ohio” P. 2a. No appeal was taken from this 
decision. Thereafter plaintiff filed a praecipes for a writ 
of fieri facias against a bank account maintained by the 
State of Ohio, and the District Court directed the bank 
to pay the contested monies to the clerk of the court.

On February 22, 1973, nine months after the original 
award of counsel fees and 36 days after the January 17, 
1973, order, the defendants and the State of Ohio moved 
under Rule 60, Federal Rules of Civil Procedure, to vacate 
the admittedly final orders of May 19, 1972, and January 
17, 1973, on the ground that those orders were in excess 
of the District Court’s jurisdiction.1 Shortly thereafter, 
but before the writ was enforced, the State paid the 
$27,272.65 and the District Court vacated the attachment 
of the State’s bank account. On June 12, 1973, the Dis­
trict Court denied defendants’ motion and reaffirmed its 
decisions of May, 1972 and January, 1973. Pp. 8a-9a.

On appeal the Sixth Circuit reversed. Pp. 10a-35a. 
The Court of Appeals held that the Eleventh Amendment 
precludes an award of counsel fees or expenses against a 
state or against state officials acting in their official ca­
pacities. Pp. 26a-33a. The Sixth Circuit also concluded

1 A similar pattern occurred in two other federal cases in Ohio. 
In Taylor v. Perini, 359 F. Supp. 1185 (N.D. Ohio 1973), counsel 
fees were ordered, apparently without opposition, on September 
12, 1972. On February 26, 1973, shortly after the Rule 60 motion 
in this case, the Attorney General’s office advised the District 
Court the state would not pay any fees, and shortly thereafter 
moved to set aside the award of fees under Rule 60. In Welch v. 
Rhodes (No. 69-249, S.D. Ohio), the District Court awarded coun­
sel fees against the state, Ohio having contested the amount of the 
fee but not liability. On February 22, 1973 Ohio unsuccessfully 
moved to set aside the award under Rule 60. Taylor is now pend­
ing on appeal in the Sixth Circuit; Welch was vacated and re­
manded for clarification of the district court’s order. 494 F.2d 
1244 (6th Cir. 1974).



6

that the two final orders of the District Court were not res 
judicata, and could be collaterally attacked by a Rule 60(b) 
motion. The Court of Appeals issued its initial opinion on 
April 25, 1974. Pp. 10a-20a. Petitioner sought rehearing 
en banc. On July 18, 1974 the original panel issued a new 
opinion, pp. 21a-35a, and the petition for rehearing en 
banc was denied.

Reasons for Granting the Writ

The Eleventh Amendment became effective on January 
8, 1798. Since February Term, 1810, the rules of this Court 
have provided that costs shall be taxed against the losing 
party in every cause. For at least a century the uniform 
practice of this Court has been to tax such costs even 
where the losing party is a State. Fairmont Creamery Co. 
v. Minnesota, 275 U.S. 70, 77 (1927). Within the last de­
cade the decisions of this Court, and a variety of new 
federal statutes, have increased the number of cases in 
which attorneys’ fees may be assessed as part of costs. 
Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 
(1968); Mills v. Electric Auto-Life Company, 376 U.S. 375 
(1970). Within the last two years a score of decisions in 
the district courts and courts of appeals have considered 
whether, in litigation against state officials under Ex parte 
Young, 209 U.S. 123 (1908), the federal courts have the 
power to award costs, including counsel fees, to a success­
ful plaintiff.2 That question was raised by this Court at oral 
argument, but not decided, in Edelman v. Jordan, No. 
72-1410, Transcript, p. 8.

In the instant case the District Court concluded it had 
such power. In attempting to enforce its award of costs,

2 A similar question regarding whether attorneys’ fees can be 
awarded against the federal government is raised by the Petition 
for Certiorari in Pyramid Lake Piute Tribe v. Morton, No. 74-342.



7

including counsel fees, the District Court entered two 
orders directing payment—one against the defendant state 
officials “in their official capacities,” p. la, and one against 
the State of Ohio. P. 2a. Both orders contemplated pay­
ment out of state funds.8 The Court of Appeals reversed, 
apparently reasoning, in the light of this Court’s decision 
in Edelman v. Jordan, 39 L.Ed. 2d 662 (1974), that any 
monetary award to be paid out of the state treasury was 
precluded by the Eleventh Amendment. The opinion of 
the Sixth Circuit precludes such awards for either attor­
neys’ fees or ordinarily taxable expenses of the litigation, 
regardless of whether the award is nominally against offi­
cials in their official capacities or against the state as such.* 4

Within the last year decisions in several other circuits 
have upheld awards of attorneys’ fees against state agencies 
or state officers in their official capacities. In Jordan v. 
Fusari, 496 F. 2d 646, 651 (2d Cir. 1974), the Second Cir­
cuit held that an award of counsel fees “as part of an order 
granting injunctive relief, has at most the ‘ancillary effect 
on the state treasury,’ which Edelman v. Jordan, supra, 
42 U.S.L.W. at 4424, characterizes as ‘a permissible and 
often inevitable consequence of the principle announced in 
Ex parte Young,’ 209 U.S. 123 (1908).” See also Stolberg 
v. Members of the Board of Trustees for State College of

8 The question of the liability of the state officials to satisfy 
such awards out of their personal funds was not considered by 
either the District Court or the Court of Appeals. See Scheuer 
v. Rhodes, 40 L.Ed. 2d 90 (1974).

4 The sole reason given by the Court of Appeals for reversing 
the award of counsel fees and expenses, and the only argument 
advanced in the Sixth Circuit, by appellants, was the prohibition 
of the Eleventh Amendment. Any other possible objection to that 
award is precluded by the failure of the appellants to file a timely 
appeal of the District Court decisions of May 19, 1972, and January 
17, 1973. Only the jurisdictional objection founded on the Elev­
enth Amendment, if any, can be relied upon to attack a final judg­
ment under Rule 60(b), Federal Rules of Civil Procedure.



8

Connecticut, 474 F.2d 485, 490, n.3 (2d Cir. 1973). In Brand- 
enburger v. Thompson, 494 F.2d 885, 888 (9th Cir. 1974), 
the Ninth Circuit concluded that “an award of attorneys’ 
fees assessed against a state official acting in his or her 
official capacity is not prescribed by the Eleventh Amend­
ment.” See also LaRaza Unida v. Volpe, 488 F.2d 559 (9th 
Cir. 1973), affirming 57 F.R.D. 94, 101-102, n.ll. In Gates 
v. Collier, 489 F.2d 298 (5th Cir. 1973), rehearing en banc 
granted, the Fifth Circuit reached the same conclusion.

Although the trial court had the power to assess attor­
neys’ fees and expenses against the individual defen­
dants found to have engaged in the unconstitutional 
conduct, we think it does not vitiate the award because 
the trial court prescribed that this part of the cost were 
to be payable “from funds which the Mississippi Legis­
lature, at its 1973 session, may appropriate for the 
operation of the Mississippi State Penitentiary” . . .

489 F.2d at 302. See also Eoitt v. Vitek, 495 F.2d 219 (1st 
Cir. 1974); Natural Resources Defense Council v. En­
vironmental Protection Administration, 484 F.2d 1331, 
1333 (1st Cir. 1973) Milburn v. Huecker, (6th Cir., Nos. 
73-1259 and 73-1430) (August 5, 1974, slip opinion, pp. 
4-6). Jordan, Eoitt and Milburn were decided after Edel- 
man. On the other hand the Third Circuit has concluded 
that the Eleventh Amendment does preclude any award 
of counsel fees, Skehan v. Board of Trustees of Blooms- 
burg State College, (3d Cir., No. 73-1613) (May 3, 1974 
slip opinion, pp. 20-22), and a panel of the Fifth Circuit 
has recently declined to follow Gates. Named Individual 
Members of San Antonio Conservation Society v. Texas 
Eiglnvay Dept., 496 F.2d 1017, 1025 (5th Cir. 1974), rehear­
ing en banc granted. In the instant case the Sixth Circuit 
noted that “lower court decisions have not been unan­
imous,” p. 30a, and stated “we respectfully decline to adopt



9

the position taken by the Fifth Circuit” in Cates. P. 30a.6 
Such a conflict among the circuits requires a grant of 
certiorari by this Court to establish a uniform rule. Avco 
Corp. v. Aero Lodge, 390 U.S. 557, 559 (1968).

The decision of the Sixth Circuit in this case is in square 
conflict with the decisions of at least 8 District Courts. In 
Sims y. Amos, 340 F. Supp. 691, 694 (M.D. Ala. 1972) (state 
reapportionment), aff’d 409 U.S. 942 (1972), the District 
Court, relying on Ex parte Young, 209 U.S. 123 (1908), 
awarded costs, including attorneys’ fees, against “the Ala­
bama State Legislature, the Governor, the Attorney Gen­
eral, and the Secretary of State.” See also Newman v. State 
of Alabama, 349 F. Supp. 278 (M.D. Ala. 1972), N.A.A.C.P. 
v. Allen, 340 F. Supp. 703, 710 (M.D. Ala. 1972) (employ­
ment discrimination); Taylor v. Perini, 359 F. Supp. 1185, 
1186-87 (N.D. Ohio 1973) (award against state correction 
officials to be paid by state); LaRasa Unida v. Volpe, 57 
F.R.D. 94,102 (N.D. Cal. 1972) (environmental protection). 
Kirkland v. New York State Dept, of Correctional Services, 
374 F. Supp. 1361, 1381-82 (S.D. N.Y. 1974) (employment 
discrimination). Wyatt v. Stickney, 344 F. Supp. 387 (M.D. 
Ala. 1972) (conditions in mental hospitals); Beens v. 
Erdahl, (D. Minn., No. 4-71-Civ 151) (order dated Decem­
ber 14, 1972) (state reapportionment); Class v. Norton, 
376 F. Supp. 496, 376 F. Supp. 503 (D. Conn. 1974); 
Sousa v. Travisono, (D.R. J., No. 5261) (opinion dated 
July 8, 1974). Welch v. Rhodes, (S.D. Ohio, No. 69-249) 
(orders dated May 8, 1972 and May 23, 1973) vacated 492 
F.2d 1244 (6th Cir. 1974). But see Sincock v. Ohara, 320 
F. Supp. 1098 (D. Del. 1970). Kirkland, Class and Sousa 
were decided after Edelman. 5

5 Similarly the Third Circuit in SJcehan expressly declined to 
follow Gates, slip opinion, p. 18, n. 7, or Jordan v. Fusari, Order 
of June 11, 1974, amending opinion of May 3, 1974.



10

Tlie conflict among the lower courts exists largely because 
of uncertainty as to the significance of this Court’s decision 
of October 24, 1972, affirming Sims v. Amos, supra. Sims 
had directed that an award of counsel fees be paid by the 
Governor and Legislature of the State of Alabama. In its 
Jurisdictional Statement, Alabama objected

The award to the plaintiffs of their attorneys’ fees and 
expenses incurred and . . . the taxing of these items as 
costs against the defendants who are elected state of­
ficials erred in their official capacity . . . was tanta­
mount to the award of money judgment against the 
State of Alabama in direct violation of the doctrine 
of sovereign immunity.

Jurisdictional Statement, No. 72-12, October Term, 1972, 
p. 17. Appellees contended that Ex parte Young 209 U.S. 
123 (1908), permitted an award of costs, including counsel 
fees, against a state or its employees in their official capaci­
ties, and that the Eleventh Amendment did not apply to any 
award of costs even including counsel fees. Motion to 
Dismiss or Affirm, No. 72-12, October Term, 1972, pp. 9-12. 
This Court affirmed the award of counsel fees without opin­
ion. 409 U.S. 942.

The lower courts awarding counsel fees against states 
since Sims have consistently relied on this Court’s affirm­
ance in that case. In Taylor v. Perini, 359 F. Supp. 1185, 
1186, (N.D. Ohio 1973), the court explained regarding 
Sims:

Counsel for the plaintiffs has also supplied this Court 
with the Jurisdictional Statement of the case which was 
filed in the United States Supreme Court by the Attor­
ney General of Alabama. On page seventeen of this 
statement, the question of Alabama’s sovereign im­
munity is clearly set forth. Although the Supreme 
Court affirmed the district court decision without



11

opinion, it can logically be assumed that, in light of 
these two clear references to the Eleventh Amendment 
problem, the Supreme Court considered it in making its 
determination. This Court concludes, therefore, that 
the Sims case is controlling on this issue. . . .

See also Gates v. Collier, 489 F.2d 298, 302 (5th Cir. 1973) 
(quoting the Jurisdictional Statement); Jordan v. Fusari, 
496 F.2d 646, 651 n .ll (2d Cir. 1974); Milburn v. Huecher 
(6th Cir., nos. 73-1259 and 73-1430) (August 5, 1974, slip 
opinion, p. 8); Brandenburger v. Thompson, 494 F.2d 885, 
888 (9th Cir. 1974); Kirkland v. New York State Dept of 
Correctional Services, 374 F.Supp. 1361, 1382 (S.D. N.Y. 
1974). In the instant case the Sixth Circuit noted that 
Sims had been relied on by 5 other courts, but declined to 
follow it on the ground that summary affirmances were not 
“of the same precedential value” as a written opinion from 
this Court. Pp. 27a-29a. In Skehan v. Board of Trustees 
of Bloomsburg State College (3d Cir., No. 73-1613), the 
Third Circuit concluded that Edelman v. Jordan was in­
tended to overrule the affirmance in Sims, and that this 
Court’s failure to expressly overrule Sims was mere “in­
advertence.” (May 3, 1974, slip opinion p. 18, n. 7). Such 
uncertainty as to the significance and vitality of Sims can 
only be resolved by this Court.

A similar conflict exists as to the significance of this 
Court’s decision in Fairmont Creamery v. Minnesota, 275 
U.S. 70 (1927). Fairmont Creamery expressly held that a 
state’s sovereign immunity did not protect it from an 
award of costs in federal court. See also Utah v. United 
States, 304 F.2d 2d (10th Cir. 1962) cert, denied 371 U.S. 
828. In Sims v. Amos the appellee contended that the rule 
in Fairmont Creamery covered an award of counsel fees 
as part of costs. Motion to Dismiss or Affirm, No. 72-12, 
October Term, 1972, pp. 10-11. Fairmont Creamery was 
expressly relied upon by the Second Circuit in Jordan v.



Fusari and the District Court in LaRaza Unida v. Volpe. 
See No. 73-2364, 2d Cir., April 29,1974, slip opinion, p. 3068 
n. 11, 57 F.R.D. 94, 101-102, n. 11 (N.D. Cal. 1972). The 
Sixth Circuit, however, declined to follow Fairmont Cream­
ery in this case on the ground that counsel fees are not 
“analogous” to costs, p. 33a. and the district court in Sm­
ooch v. Ohara, dismissed the “provocative language in the 
opinion” on the incorrect assumption that the award of 
costs in Fairmont Creamery had been against the United 
States. 320 F. Supp. 1098, 1104, n. 12.

The Court of Appeals also concluded that Eleventh 
Amendment restricts the power of the federal courts to en­
force the Fourteenth Amendment, pp. 31a-33a. In Ex parte 
Young, 209 U.S. 123 (1908), this Court expressly left open 
the question of whether the Eleventh Amendment had been 
limited by the later enactment of the Fourteenth.6 In Edel- 
man v. Jordan, 39 L.Ed. 2d 662 (1974), two members of this 
Court concluded that question was still unresolved.7 The 
Sixth Circuit, however, concluded that this Court in Edel- 
man had decided, sub silentio, that the Eleventh Amend­
ment limited the power of the federal courts to provide 
remedies for violations of the Fourteenth.

6 “We think that, whatever the rights of complainants may be, 
they are largely founded upon that [Fourteenth] Amendment, 
but a decision in this case does not require an examination or 
decision of the question whether its adoption in any way altered 
or limited the effect of the earlier [Eleventh] Amendment”. 209 
U.S. at 150.

7 “It should be noted that there has been no determination in 
this case that state action is unconstitutional under the Fourteenth 
Amendment. Thus, the Court necessarily does not decide whether 
the States’ Eleventh Amendment sovereign immunity may have 
been limited by the later enactment of the Fourteenth Amendment 
to the extent that such a limitation is neeessary to effectuate the 
purposes of that Amendment, an argument advanced by an amicus 
in this case.” 39 L.Ed. 2d at 690, n.2; c.f. Curtis v. Loether, 415 
U.S. 189, 198, n.15 (1974).



13

Claims for money against a state can arise in three 
separate legal frameworks. . . . Third, it may be based 
on the Fourteenth amendment, which binds the states 
directly and under §5 of which Congress has the power 
to create remedies. . . . Justice Marshall is technically 
correct that Edelman does not dispose of the Third 
category. But the majority opinion expressly over­
rules Shapiro v. Thompson, supra; State Department 
of Health and Rehabilitative Services v. Zarate, supra, 
and Wyman v. Bowens, supra, all Fourteenth amend­
ment cases. We think Edelman must be read as closing 
the door on any money award from a state treasury 
in any category.

Appendix, 32a-33a. The Third Circuit has also concluded 
that the Eleventh Amendment limits remedies under the 
Fourteenth. Shehan v. Board of Trustees of Bioomsburg 
State College (3d Cir., No. 73-1613) (May 3, 1974, slip 
opinion p. 18, n.7).

In General Oil Company v. Crain, 209 U.S. 211, 226-27 
(1908), this Court recognized that if the Eleventh Amend­
ment precluded the award of necessary and proper relief 
in cases under the Fourteenth Amendment, “the 14th 
Amendment, which is directed at state action, could be 
nullified as to much of its operation”. The decision of the 
Sixth Circuit substantially restricts the power of Congress 
under section 5 of the Fourteenth Amendment to redress 
violations of that Amendment. In the wake of Edelman, 
Shehan, and the decision in this case, states have chal­
lenged the constitutionality of several important federal 
laws enacted under section 5. In 1972 Congress amended 
Title VII of the 1964 Civil Rights Act to create a cause of 
action against states which discriminate in employment on 
the basis of race. 86 Stat. 103, 42 IJ.S.C. §2000e(a). Because



14

the remedies available under Title VII include both counsel 
fees and back pay, the states of Florida, Mississippi, Mary­
land and Illinois have contended that Title VII is, in this 
respect, unconstitutional.8 In Tennessee the Attorney Gen­
eral has ruled that Title VII violates the Eleventh Amend­
ment, and that an employee who was discriminated against 
on the basis of race and sex could not be reimbursed for 
back wages “without a specific appropriation by the legis­
lature.” Expressly relying on the decision of the Sixth 
Circuit in this case, the ruling concluded

Jordon v. Gilligan, . . . held the granting of attorney’s 
fees against state governments to be barred by the 
Eleventh Amendment. The Courts have found this 
necessary to preserve the fiscal integrity of the states 
. . . .  The Civil Rights Act is, therefore unconstitutional 
in as much as it may attempt to require the payment 
of back wages by State employees and the charging of 
attorney’s fees against State government.9

The constitutionality of section 718 of the Emergency 
School Aid Act of 1972, which authorizes awards of counsel 
fees against a State or any agency thereof in certain school 
litigation, is now at issue in Norwood v. Harrison, No. WC 
70-53-K (N.D. Miss.). See Bradley v. School Board of the 
City of Richmond, 40 L.Ed. 2d 476 (1974). The power of 
Congress and the federal courts to enforce the Fourteenth

8 Dillenberger v. Florida Probation and Parole Commission, Civ. 
No. 73-66 (N.D. Fla.) ; Wainwright v. State of Florida Department 
of Transportation, Civ. No. 73-42 (N.D. F la .); Graham v. Marshall, 
Civ. No. T-73-77 (N.D. F la .); Vanguard Justice Society v. Mandel, 
No. 74-71-K (D. Md.) ; Liberies v. Daniel, No. 73-C-3217 (N.D. 
111.); Pegues v. Mississippi State Employment Services, No. 72-4-S 
(N.D. Miss.).

9 Letter of Assistant Attorney General William B. Hubbard to 
Mr. Randy Griggs, Director, Tennessee Office of Economic Oppor­
tunity, July 18, 1974.



15

Amendment is a constitutional question of the first mag­
nitude which only this Court can definitively decide, and a 
prompt resolution is necessary lest uncertainty as to the 
availability of a remedy delay the commencement or prose­
cution of private civil litigation to enforce Title VII or 
other prohibitions against state discrimination.

The decision of the Sixth Circuit clearly misconstrues this 
Court’s decision in Edelman v. Jordan, 39 L.Ed.2d 662 
(1974). Edelman did not forbid the award of any relief 
which had any financial impact on a state; it recognized the 
propriety of relief with an “ancillary effect on the state 
treasury” as “a permissible and often inevitable conse­
quence of the principle announced in Ex Parte Toumg.” 39 
L.Ed.2d at 675. The awards precluded by the Eleventh 
Amendment are those “measured in terms of a monetary 
loss resulting from a past breach of a legal duty on the part 
of the defendant state officials”. 39 L.Ed.2d at 676. When 
counsel fees are available in the United States it is not as 
an element of damages needed to make whole the plaintiff. 
See 6 Moore’s Federal Practice 1)54.77 [2]. Counsel fees, 
unlike damages or retroactive welfare payments, are not 
provided as compensation violation of a substantive right, 
but for a variety of other reasons, such as (1) punishing a 
litigant for obdurately obstinate conduct and deterring such 
conduct in the future, First National Bank v. Dunham, 471 
F.2d 712 (8th Cir. 1973) (2) sharing the cost of the litiga­
tion among those benefiting from it, Hall v. Cole, 412 U.S. 1 
(1973), and (3) encouraging the prosecution by “private 
attorneys general” of litigation advancing important public 
policies. Newman v. Piggie Park Enterprises, Inc., 390 
U.S. 400 (1968). Such an award is not analogous to the 
award at law of compensatory damages, the relief which 
the Eleventh Amendment was enacted to preclude, but is 
an incident of the inherent power of equity to render com­



16

plete justice in a case. Compare Sprague v. Ticonic Na­
tional Bank, 307 U.S. 161 (1939). The Amendment does not 
preclude an award of costs against a state, Fairmont 
Creamery v. Minnesota, 275 U.S. 70 (1927), and when at­
torneys fees are available it is as an element of costs. Mills 
v. Electric Auto-Lite Co., 396 U.S. 375, 391 (1970); 6 Moore, 
Federal Practice If 54.77.10 An award of counsel fees, as any 
other award of costs, does not fall within the proscription of 
the Eleventh Amendment.

The Sixth Circuit was also in error in concluding that the 
Eleventh Amendment limited the remedies available to 
enforce the Fourteenth Amendment. Although those pro­
visions can often be reconciled through the legal fiction of 
Ex parte Young 209 TJ.S. 123 (1908), when the two amend­
ments are in conflict the more specific and recent provisions 
of the Fourteenth must prevail. See The Virginia Coupon 
Gases, 114 U.S. 269, 331 (1885); Chicago, etc. R.R. Co. v. 
United Transportation Union, 402 TJ.S. 570, 582 (1971). 
Sovereign immunity is merely a procedural protection for 
the sovereign powers of the states, Chisholm v. Georgia, 2 
TJ.S. (2 Dali.) 419, 429 (1793) (Iredell, J., dissenting), and 
that immunity has no application in areas where the Four­
teenth Amendment has stripped the states of their sover­
eign power. See Mitchum v. Foster, 407 U.S. 225, 242 
(1972). That the Eleventh Amendment should be con­
strued to limit remedies under the Fourteenth would he 
particularly inappropriate in view of the fact that the 
framers of the Fourteenth believed the rights described 
therein already existed by virtue of the privileges and im-

10 Federal statutes expressly authorizing an award of counsel 
fees invariably do so by making them one of the recoverable costs. 
See e.g. 7 U.S.C. §2305; 12 U.S.C. §1975; 15 U.S.C. §§15, 72, 
78(a), 298(b), 1640; 20 U.S.C. §1617; 33 U.S.C. §1365(d); 
42 U.S.C. §§2000a-3(a), 2000e-5(g), 3612(c) ; 49 U.S.C. §§8, 16(2), 
908(e).



17

inanities clause and the Bill of Eights, and proposed the 
Amendment to assure that there would be a remedy to re­
dress violations of those rights. See generally ten Broek, 
Equal Under Law (1965); Graham, “The Early Anti- 
Slavery Backgrounds of the Fourteenth Amendment”, 1950 
Wis.L.Bev. 479; Graham, “the ‘Conspiracy Theory’ of the 
Fourteenth Amendment,” 47 Yale L.J. 371 (1938); Brief 
Amicus Curiae of the N.A.A.C.P. Legal Defense and Edu­
cational Fund, Inc., in Edelman v. Jordan, No. 72-410.

Under the circumstances of this case Ohio clearly waived 
any immunity from liability for costs and attorneys’ fees. 
In an action such as this a state doubtless has a right to 
intervene in the litigation, participate in its conduct, and 
submit its legal claims to judicial determination. Had Ohio 
formally become a party, it would have waived its immunity 
under the Eleventh Amendment and become liable to judg­
ment like any other litigant. Clark v. Barnard, 108 U.S. 
436, 447-48 (1883); Missouri v. Fishe, 290 U.S. 18, 24 (1933). 
In the instant case Ohio, without formally becoming a 
party, sought and obtained all the benefits of that status 
in the District Court; it appeared through the state Attor­
ney General, it assumed control of the defense, and it suc­
cessfully opposed efforts by the nominal defendants to con­
trol that defense. A non-party who with such an interest 
in the outcome of litigation, even if the non-party would 
otherwise have been outside the jurisdiction of the district 
court, is bound by the outcome of the litigation, Sou fron t 
v. Compagnie des Suceries, 217 U.S. 475, 486-87 (1910); 
Dick Press Guard Mfg. Co. v. Bowen, 229 F.193, 196 (N.D. 
N.Y. 1915), aff’d 229 F.575 (2d Cir. 1915), cert, denied 241 
U.S. 671 (1915). Such a nominal non-party is no stranger 
to the litigation, and judgment on the merits may be entered 
directly against him as well as against the formal parties. 
Ocean Accident & Guarantee Corp. v. Felgemaker, 143 F.2d



18

950, 952 (6th Cir. 1944); Eagle Mfg. Co. v. Miller, 41 F.351, 
357 (S.D. Iowa 1890).

Neither the Eleventh Amendment nor Monroe v. Pape, 
365 U.S. 167 (1961), give a state an absolute immunity 
from liability; they assure such immunity only so long as a 
state does not seek the benefits that would be its as a party. 
When a state official is sued for an alleged violation of 
federal law, the state may choose to remain at arms length 
from the litigation, leaving the official to prove his innocence 
of the charges. In such a case the state’s immunity remains 
intact. But if the state elects to participate fully in the 
litigation, assuming the same control .of the litigation it 
would have had as a named defendant, it must accept the 
ordinary consequences of such participation. In cases such 
as this for injunctive relief the named officials, if left to 
their own resources, would have little interest in the out­
come of the litigation; it is only because of the participa­
tion of the state that substantial efforts by plaintiffs counsel 
are required. A state cannot, by such participation in civil 
rights litigation, precipitate extended litigation and require 
the expenditure of substantial time, effort and monies by 
plaintiffs and their counsel without becoming liable for the 
costs, including counsel fees, of such action if the defense 
is unsuccessful.

The Court of Appeals also overturned that portion of 
the District Court’s opinion awarding costs for items other 
than counsel fees. The District Court order of May 19, 
1972, granted as part of costs $1262.65 for various expenses 
of the litigation. Although the Sixth Circuit opinion deals 
primarily with the question of counsel fees, it reverses the 
award of these expenses as well as “void for lack of juris­
diction.” pp. 23a, 35a, This Court, however, has of course 
held that a state’s immunity does not protect it from an 
award of costs. Fairmont Creamery Co. v. Minnesota, 275



19

U.S. 70 (1927). Among the items awarded as expenses by 
the District Court were expenditures traditionally awarded 
as costs, including marshall fees, 28 U.S.C. § 1920(1) and 
stenographic charges, 28 U.S.C. §1920(2). Insofar as the 
Sixth Circuit held that Ohio could not be required to pay 
these costs, its decision was clearly erroneous.

The substantiality of the question presented by this Peti­
tion is attested to by the position taken by the United States 
in an amicus brief in Gates v. Collier (5th Cir. No. 73-1790). 
The Department of Justice there urged at length that the 
Eleventh Amendment does not prohibit the award of coun­
sel fees against a state in a case such as this. The Govern­
ment contended that the states waive any immunity from 
such an award by participation in the litigation. “In choos­
ing to defend an action properly brought in a federal forum, 
defendants must assume responsibility for the normal inci­
dents of such a suit, including costs, witness fees, and at­
torneys’ fees.” Brief for the United States, pp. 16-17. Ex­
pressly referring to Mr. Justice Marshall’s dissent in Edel- 
man v. Jordan, supra, p. 32, the United States asserted 
“There are considerations which suggest that the Eleventh 
Amendment is limited in part by the Fourteenth and that 
issue must eventually be decided (perhaps in a case seeking 
‘damages’ for Fourteenth Amendment violations).” Brief 
for United States, p. 15, n,8. The Government expressly 
relied on Fairmont Creamery Co. v. Minnesota, 275 U.S. 70 
(1927), on this Court’s affirmance of Sims v. Amos, 409 
U.S. 942 (1972), and contended that counsel fees were with­
in the “ancillary effect on the state treasury” permitted by 
Edelman. Brief for the United States, pp. 7, 18-20.



20

CONCLUSION

For the above reasons, a Writ of Certiorari should issue 
to review the judgment and opinion of the Sixth Circuit.

N a t h a n ie l  R . J o nes

W il l ia m  D . W ells  
1790 Broadway 
New York, New York 10019

J ack  G reen berg

E r ic  S c h n a p p e r  
Suite 2030 
10 Columbus Circle 
New York, New York 10019

A lb er t  O rten zio

201/2 W. Boardman 
Youngstown, Ohio

Counsel for Petitioners



APPENDIX



la

District Court Order Granting Applications for 
Attorneys Fees and Expenses

[Entered: May 19, 1972]

[C a ptio n ]

Battisti, C .J.:
Counsel for plaintiffs have made application for the 

allowance of attorney’s fees and expenses to date. There 
is no opposition to the amounts requested and they seem 
reasonable on their face.

Therefore, the State of Ohio, through John J. Gilligan, 
Governor; Joseph T. Ferguson, State Auditor; Ted W. 
Brown, Secretary of State; Anthony 0. Calabrese, Sr., 
State Senator; and Robert A. Manning, State Represen­
tative, collectively, in their official capacities, and as the 
persons responsible for apportioning the State of Ohio, 
are ordered and directed to pay attorney’s fees to Na­
thaniel R. Jones in the sum of $15,580.00 and expenses 
in the sum of $799.64 and are ordered and directed to pay 
attorney’s fees to Albert J. Ortenzio in the sum of $10,430.00 
and expenses in the sum of $463.01.

Frank J. Battisti 
Chief Judge



2a

District Court Order Directing That Plaintiff’s 
Attorney’s Fees and Expenses Be Taxed as Costs

[Filed: January 17, 1973]

By previous order entered by this Court the State of 
Ohio was ordered to pay Plaintiff’s attorneys’ fees in this 
action. The Court now being advised that the State of 
Ohio has failed and confines to refuse to comply with 
said order, now directs that Plaintiff’s attorneys’ fees and 
expenses be taxed as costs in this action.

Accordingly, costs, including Plaintiff’s attorneys’ fees 
and expenses as previously ordered paid in the amount of 
$27,272.65 shall be taxed as costs against the State of Ohio.

It is  so  O rdered .

[C a p t io n ]

Judge

Date: January 17, 1973



3a

Opinion and Order Denying Defendants5 Motion for 
Stay of Execution and Vacating Attachment

[Filed: March 9, 1973]

[ C a p t i o n ]

B a t t is t i, C.J.:

M em o ra n d u m  O p in io n  and  O rder

The defendant State of Ohio has moved this Court, 
pursuant to Rule 62(b), Fed.R.Civ.P., for an order staying 
execution of, or any proceedings to enforce, the order 
awarding attorneys’ fees entered previously. This motion 
has been denied.

This case has experienced a rather long tenure in this 
Court, but its end is finally in sight. The Court sees no 
necessity for reviewing all of the history. However, a short 
precis of recent events is required. Subsequent to this 
Court’s last order in March, 1972, counsel submitted a 
bill for attorneys’ fees. The State of Ohio wisely decided 
not to object, because the fees were justified and reason­
able. The amounts charged by counsel represents the 
prevailing hourly rates charged by attorneys in their re­
spective areas. This Court has regularly permitted attor­
neys to so recover. In fact, in two recent protracted cases 
Cleveland counsel were paid the prevailing hourly rates.1 
One of these cases involved the apportionment of the City 
of Cleveland.

The necessity and desirability of allowing attorneys’ 
fees in such cases such as this was best expressed by a 1

1 See In the Matter of the Complaint of the Cambria Steamship 
Company, et al., C 67-61 (U.S.D.C. N.D. Ohio, 1973); see also 
Kathleen Ann Tanko v. Anthony R. Stringer, et al., C 69-113 
(U.S.D.C. N.D. Ohio, 1971).



4a

tliree-jucige district court for the Middle District of Ala­
bama, Northern Division. The Court there said:

“In instituting the case sub judice, plaintiffs have 
served in the capacity of ‘private attorneys genera? 
seeking to enforce the rights of the class they repre­
sent. See generally Newman v. Piggie Park Enter­
prises, Inc., 390 U.S. 400 (1968); Miller v. Amusement 
Enterprises, Inc., 426 F.2d 534 (5th Cir. 1970). If, 
pursuant to this action, plaintiffs have benefited their 
class and have affectuated a strong congressional 
policy, they are entitled to attorneys’ fees regardless 
of defendants’ good or bad faith. See Mills v. Electric 
Auto-Lite Co., 396 U.S. 375 (1970). Indeed, under 
such circumstances, the award loses much of its dis­
cretionary character and becomes a part of the effec­
tive remedy a court should fashion to encourage public- 
minded suits, id., and to carry out congressional policy. 
Lee v. Southern Home Sites, 444 F.2d 143 (5th Cir. 
1971).

The present case clearly falls among those meant 
to be encouraged under the principles articulated in 
Piggie Park Enterprises, Inc. and Mills, and expanded 
upon in Southern Home Sites and Bradley [v. School 
Board of Richmond, 53 F.R.D. 28 (E.D.Va., 1971)]. 
The benefit accuring to plaintiffs’ class from the prose­
cution of this suit cannot be overemphasized. No 
other right is more basic to the integrity of our 
democratic society than is the right plaintiffs assert 
here to free and equal suffrage. In addition, con­
gressional policy strongly favors the vindications of 
federal rights violated under color of state law, 42 
U.S.C. 1983, and, more specifically, the protection of

Opinion and Order Denying Defendants’ Motion for
Stay of Execution and Vacating Attachment



5a

the right to a nondiscriminatory franchise. See the 
Voting Eights Act of 1965, 79 Stat, 437, 42 U.S.C. 
1973; the Civil Rights Acts of 1964, 78 Stat. 241, 
42 T7.S.C. 1971; of 1960, 74 Stat, 86, and of 1957, 
71 Stat. 634; and U.S. Const., amend. XIV and SV. 
It is of no consequence that the statute under which 
plaintiffs filed this suit, 42 U.S.C. 1983, is silent on 
the availability of attorneys’ fees. See Long v. Georgia 
Kraft Co., Civil No. 71-1476, 5th Cir., Jan. 28, 1972, 
and the many cases cited therein; Knight v. Auciello, 
40 U.S. LAVeek 2453 (1st Cir. Jan. 17, 1972).

Despite the benefit to plaintiffs’ class, however, and 
despite this suit’s effectuating the purpose of con­
gressional legislation, the case sub judice is one most 
private individuals would hesitate to initiate and 
litigate. Circumstances described in Bradley as ren­
dering school desegregation suits unattractive to pro­
spective plaintiffs apply with equal force to reappor­
tionment cases:

. . .  No substantial damage award is ever likely, 
and yet the costs of proving a case for injunctive 
relief are high. To secure counsel willing to under­
take the job of trial, including the substantial duty 
of representing an entire class . . . necessarily means 
that someone—plaintiff or lawyer—must take a great 
sacrifice unless equity intervenes . . .’
Consequently, in order to attempt to eliminate these 

impediments to pro bono publico litigation, such as 
is here involved, and to carry out congressional policy, 
an award of attorneys’ fees is essential.” Sims, et al. 
v. Amos, et al., 340 F. Supp. 691, 694-695 (M.D. Ala. 
1971) (Footnote eliminated).

Opinion and Order Denying Defendants’ Motion for
Stay of Execution and Vacating Attachment



6a

Some clamor lias been generated over the amount of 
these fees and the necessity of the State to pay them. 
This clamor is not a part of this Court’s record and is not 
for our consideration. However, it should be noted that 
counsel have performed a great service for all those who 
vote in elections for the General Assembly of the State of 
Ohio. Counsel have devoted many hours to perform a 
beneficial service for this State. They deserve to be paid 
for the successful efforts. Plaintiffs then attached a State 
bank account. The attachment has not been consummated 
for reasons unknown to this Court. Fortunately, however, 
the State has come to realize its lawful debt to these men 
must be paid and has now done so. Therefore, the Marshal 
is hereby ordered to remove the attachment on the Union 
Commerce Bank in Cleveland.

It should be noted that although the plaintiffs have been 
successful in the United States Supreme Court, they are 
still victimized by frivolous appeals to the United States 
Court of Appeals for the Sixth Circuit, brought by a lawyer 
whose ability to comprehend federal practice seems ex­
tremely limited. His refusal to obey a clear injunction 
caused him to be found guilty of contempt by this Court. 
The appellant in that case suffered the same fate. The 
Courts should not be used as a sounding board for their 
political grievances. The proper remedy lies elsewhere, 
that is to say, in the political process. It is entirely con­
ceivable that counsel may properly seek attorneys’ fees 
from the appellant for his frivolous appeals. However, 
since this matter is not before the Court, no such deter­
mination is made. It is clear, however, that counsel did 
not comprehend the order to the Supreme Court. Man­
ifestly he was not a proper party to appeal to the United

Opinion and Order Denying Defendants’ Motion for
Stay of Execution and Vacating Attachment



7a

States Supreme Court pursuant to 28 U.S.C. 1253. Whether 
he has standing in the Court of Appeals remains to be seen.

On the other hand, counsel for the State of Ohio recog­
nized that there were obvious constitutional infirmities on 
the face of the first apportionment plan. A new plan was 
submitted to this Court and it was defended admirably. 
They recognized the service of plaintiffs’ distinguished 
counsel and therefore did not oppose the fee bills. They 
knew that almost all the precedent and right reason sup­
ports the payment of reasonable attorneys’ fees in reap­
portionment cases. They also knew that to oppose the 
bills would have been a vain act and that responsible 
lawyers do not so indulge themselves and their clients.

Accordingly, payment having been executed, the attach­
ment made by plaintiffs on the Union Commerce Bank, 
Cleveland, Ohio, is hereby vacated.

It is  so  Ordered .

Opinion and Order Denying Defendants’ Motion for
Stay of Execution and Vacating Attachment

[s] Frank J. Battisti

F r a n k  J .  B a t t ist i 
Chief Judge



8a

Opinion and Order Denying Defendants’
Rule 6 0 (b )  Motion

[Filed: June 12, 1973]

Battisti, C.J.
Defendants have filed a motion under Rule 60(b) re­

questing the Court to reconsider the awarding of attorney 
fees in this case. They allege as a basis for this motion 
that the Eleventh Amendment to the United States Con­
stitution proscribes the awarding of such fees.

The facts of this case need not be discussed further at 
this time. Counsel for plaintiff performed a valuable ser­
vice for the people of the State of Ohio in proposing an 
acceptable reapportionment plan for the State legislature. 
The Court awarded reasonable fees as compensation for 
these services, and counsel for the State neither objected 
nor appealed when the award was made. Defendants now 
claim that this award of fees should be reopened under 
Rule 60(b), alleging for the first time that it is violative 
of the Eleventh Amendment.

The judgment is not void and, therefore, not subject to 
being reopened under Rule 60(b)(4). Even assuming, 
arguendo, that the Eleventh Amendment argument were 
sound, the judgment entered herein is res judicata as to 
any issue which was or could have been raised in the initial 
proceedings. See Chicot County Drainage District v. Bax­
ter State Bank, 308 US 371 (1940). Thus, the Court need 
not decide the Eleventh Amendment question at this time. 
It should be noted in passing, however, that at least one 
other three-judge court has awarded attorney fees in simi­
lar circumstances, Sims v. Amos, 340 F. Supp. 691 (N.D.

[C a pt io n ]



9a

Ala. 1972), aff’d, 409 US 942 (1972). More recently, Judge 
Young considered this argument and rejected it in a de­
tailed and well-reasoned opinion. Taylor v. Perini, -----
F. S upp-----  (N.D. Ohio, No. C 69-275, decided May 23,
1973).

Nor is this an appropriate case to consider under Rule 
60(b)(6). That rule was clearly designed to operate only 
in circumstances in which a full and fair hearing was not 
had in the first instance. Counsel has not attempted to 
show a “reason justifying relief from the operation of the 
judgment,” other than to present a defense not raised 
earlier. The adoption of this position would make any 
judgment subject to reopen upon discovery of additional 
defenses which were available but not raised at the first 
trial, and would completey destroy the concept of res 
judicata as that term is generally understood. This could 
not have possibly been the intention of the drafters of 
Rule 60(b) (6), for sound public policy has always dictated 
that there must be an end to litigation at some point. See 
Baldwin v. Iowa State Traveling Men’s Assoc., 283 US 522 
(1931). That point in this case should have been reached 
long ago.

Defendants have shown no valid reason to justify re­
opening this case. Accordingly, their motion under Rule 
60(b) is denied.

I t I s S o O rdered .

Opinion and Order Denying Defendants’
Rule 60(b) Motion

[ s ]  F r a n k  J. R a t t ist i

Frank J. Battisti 
Chief Judge



Opinion o f United States Court o f Appeals 
April 25 , 1974

No. 73-1973

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Sa m u e l  J. J ordon , e t  a l .,

Plaintiffs-Appellees, 
v.

J o h n  J. G illig a n , e t  a l .,

Defendants-Appellants.

A p p e a l  from the 
United States District 
Court for the North­
ern District of Ohio, 
Eastern Division.

Decided and Filed April 25, 1974.

Before: P eck , M il l e r  and L iv ely , Circuit Judges.

P eck , Circuit Judge. This is an appeal from an order en­
tered in  the district court denying appellants’ motion to va­
cate a prior order of that court awarding attorneys’ fees 
against the State of Ohio. The appellants’ principal assertion 
is that the award was void since, under the Eleventh Amend­
ment to the Constitution of the United States, the State was 
immune from the award, and the court was without jurisdic­
tion to make it.

The record establishes that in November of 1971, Samuel 
Jordon filed a class action suit against the members of the 
Ohio Apportionment Board, a state body responsible for the 
decennial reapportionment of the Ohio legislature. Included 
as defendants were state officials and members of the Ma­
honing County Board of Elections in their official capacities. 
The State of Ohio was not a named defendant. Plaintiff



11a

sought, on behalf of the class of all Ohio voters, a declaratory 
judgment that a reapportionment plan adopted by the Board 
was constitutionally infirm, and he asked that injunctions re­
quiring the Board to establish a revised plan that would sat­
isfy applicable requirements be issued. Plaintiff also prayed 
for an award of attorneys’ fees against the defendants. Federal 
jurisdiction was invoked pursuant to 28 U.S.C. § 1343 for 
alleged violations of' the Fourteenth and Fifteenth Amend­
ments as implemented by 42 U.S.C. § 1983.

The Board’s original plan was declared unconstitutional by 
the three-judge district court convened to hear the case under 
the terms of 28 U.S.C. § 2281. The district court ordered ap­
pellants to submit a new plan that would comply with state 
and federal constitutional demands. A revised plan was duly 
submitted to and approved bv the court in December of 1971. 
After allowing appellees 60 days in which to- file objections to 
the revised plan, the court entered a final order adopting 
it for the decennium.

Counsel for appellees filed applications for awards of at­
torneys’ fees and expenses in the combined amounts of $27,- 
272.65. The district court, in the absence of any objections 
to the applications from appellants, entered the following 
order on May 19, 1972:

“Counsel for plaintiffs have made application for the 
allowance of attorney’s fees and expenses to date. There 
is no opposition to the amounts requested and they seem 
reasonable on their face.

“Therefore, the State of Ohio, through John J. Gilligan, 
Governor; . . . collectively, in their official capacities, and 
as the persons responsible for apportioning the State of 
Ohio, are ordered and directed to pay attorney’s fees

Eight months passed and the judgment remained unpaid. On 
January 17, 1973, the district court ordered the award of at­
torneys’ fees and expenses taxed as costs against the State of

Opinion of United States Court of Appeals
April 25, 1974



12a

Ohio.1 Appellees filed a praecipes for a writ of fieri facias 
against a bank account maintained by the State at a bank 
in Cleveland, Ohio, and the court acted to enforce it by 
ordering the bank to pay the contested monies to the clerk 
of the court.1 2

The appellants filed a motion to vacate the award of attor­
neys’ fees based on Rule 60(b) of the Federal Rules of Civil 
Procedure, and simultaneously filed a motion for stay of ex­
ecution pending disposition of the Rule 60(b) motion. Short­
ly thereafter, but before the writ was enforced, the State paid 
the $27,272.65 judgment. In response to the voluntary pay­
ment, the district court vacated, by order, the attachment of 
the State’s bank account. The court also issued an order 
denying appellants’ Rule 60(b) motion. It was from this 
denial that the present appeal was perfected.

Rule 60(b), Fed. R. Civ. P., provides in pertinent part as 
follows: “On motion and upon such terms as are just, the
court may relieve a party . . . from a final judgment, order, 
or proceeding for the following reasons: . . .  (4) the judg­
ment is void . . . If, as appellants assert, the award of 
attorneys’ fees and expenses against the State of Ohio was 
void for lack of jurisdiction, we must reverse. A void judg­
ment is a legal nullity and a court considering a motion to 
vacate has no discretion in determining whether it should be 
set aside. See generalhj, 7 J. Moore, Federal Practice, \\ 60.25 
[2], at 301 (2d ed. 1973).

Before discussing the central issue in this case a few words 
of clarification are in order. This cause, insofar as the award

Opinion of United States Court of Appeals
April 25, 1974

1 “By previous o rd er . . . th e  S ta te  of Ohio w as o rdered  to  pay 
P lain tiff’s a tto rneys’ fees in th is  action. T he C ourt now  being  ad ­
vised th a t the S ta te  of Ohio has failed  and continues to refuse to 
com ply w ith said o rder, now d irects th a t P la in tiff’s a tto rn ey s’ fees 
and expenses be taxed  as costs in  th is action .”

2 “The C ourt being advised th a t th e re  are funds being  held  in ex ­
cess in  the am ount of $27,272.65, it is ORDERED th a t the  Union C om ­
m erce B ank tu rn  over and deliver funds m  th e  sum of $27,272.65 
to the C lerk of this C ourt fo rth w ith ; said am ount rep resen tin g  the 
sum  designated and levied upon by the  F ieri Facias.” O rder of 
F eb ruary  2, 1973.



13a

of attorneys’ fees is concerned, although nominally against the 
chief executive and other officials of the State of Ohio, in 
substance and effect was against the State.3 Any award of 
attorneys’ fees, whether against the State of Ohio or its officials, 
vitally affects the rights and interests of the State in preserving 
its revenues. According to the general rule “a suit is against 
the sovereign if ‘the judgment sought would expend itself on 
the public treasury . . . .’ Land v. Dollar, 330 U.S. 731, 738 
(1947) . . . .” Dugan v. Rank, 372 U.S. 609, 620 (1963); 
accord, Dawkins v. Craig, 483 F.2d 1191 (4th Cir. 19/3). 
And as this Court stated in Harrison Construction Co. v. Ohio 
Turnpike Com’n., 272 F.2d 337, 340 (6th Cir. 1939), “When 
the action is in essence one for the recovery of money from 
the State, the State is the real, substantial party in interest 
and is entitled to invoke its sovereign immunity from suit 
even though individual officials are nominal defendants. See, 
Kraus v. Rhodes, 471 F.2d 430 (6th Cir. 1972).

Appellants do not contend that state officials are immune 
from suits brought to restrain unconstitutional acts undertaken 
in their official capacities. The law clearly recognized the right 
of an interested party to force state officials to act in accord­
ance with the Constitution. Georgia R.R. and Banking Co. 
v. Redwine, 342 U.S. 299 (1932); Ex parte Young, 209 U.S. 
123 (1908); Lee v. Board of Regents of State Colleges, 411 
F.2d 1237 (7th Cir. 1971); Samuel v. University of Pittsburgh, 
56 F.R.D. 533 (W.D. Pa. 1972); Wright, Law of Federal 
Courts, §48, at 183 (1970). Appellants do assert, however, 
that both a state and its officials are immune from monetary 
awards arising in connection with such a suit, even if the 
awards are for attorneys’ fees.

To further sharpen the focus of this inquiry, we note that 
in the instant case the district court ordered the attorneys’

3 T here can be no doubt th a t the  d is tric t court in tended  th e  aw ard  of 
a tto rneys’ fees to ru n  against the S ta te  of Ohio, even though  the 
S tate  w as not a p a rty  to th is suit. A lthough the  exact m eaning  of the 
court’s May 19, 1972 o rder, quoted  in  the tex t, is a rguab ly  unclear, 
any possible m is in te rp re ta tion  was obviated  by the J a n u a ry  17, 19/3 
o rder (supra  note 2), and by the  subsequen t a ttach m en t of th e  S ta te ’s 
bank account.

Opinion of United States Court of Appeals
April 25,1974



14a

fees taxed as costs, and ordered the State of Ohio to pay the 
costs.4 We do not question the general principle that a court 
may tax attorneys’ fees as costs under the appropriate circum­
stances in cases involving private parties5 or where sanctioned 
by statutory law,6 but it seems basic that if a party is immune 
from an award of attorneys’ fees as such, that immunity is 
not altered by taxing the fees as part of the costs. If the 
award is void in one form, it is void in the other.

Stripped of distracting shadow questions, the case before 
us presents a singular, although by no means simple, issue: 
Does a federal court have the power to award attorneys’ fees 
against a state or its officials acting in their official capacities 
in a suit brought under 42 U.S.C. § 19S3 to vindicate consti­
tutional rights? To this inquiry we must respond in the 
negative.

The Supreme Court reviewed and clarified the principles 
under which a federal court may award attorneys’ fees against 
an unsuccessful litigant in Hall v. Cole, 412 U.S. 1 (1973). 
The Court recognized the existence of a “class benefit” ration­
ale for awarding fees where “plaintiff’s successful litigation 
confers ‘a substantial benefit on the members of an ascer­
tainable class . . . . ” ’ Id. at 5. The basis of tiffs theory is that 
because the efforts of the individual plaintiff benefited a group 
or class of persons, equity requires the group to share the

Opinion of United States Court of Appeals
April 25, 1974

4 Order of January 17, 1973, supra  note 1.
s “A lthough the trad itio n a l A m erican  ru le  o rd in arily  d isfavors the 

allow ance of a tto rneys’ fees in the absence of s ta tu to ry  o r con tractua l 
authorization, federal courts, in the exercise of th e ir  eq u itab le  pow ers, 
m ay aw ard  a tto rn ey s’ fees w hen  the in te res t of ju stice  so requ ires .” 
H all v. Cole, 412 U.S. 1, 4 (1973). Ju s t ic e 'h a s  been held  to so req u ire  
w here bad fa ith  is exh ib ited  by the  unsuccessful litig an t or w here  
“p la in tiff’s successful litigation  confers ‘a substan tia l benefit on m em ­
bers of an  ascerta inab le class Id. a t 5.

This C ourt has also recognized th e  equ itab le  pow er to  m ake such 
aw ards. Sm oot v. Fox, 353 F.2d 830 (6 th  Cir. 1965).

W e take heed of the fact th a t in th is  case th e re  w as no evidence 
of bad fa ith  on the p a rt of appellan ts o r the  S ta te  of Ohio.

6 S ta tu tes often  provide for aw ards of a tto rn ey s’ fees. See, e.g., 
C layton Act, 15 U.S.C. $ 15; C om m unications A ct of 1934, 47 U.S.C. 
§ 206; In te rs ta te  Com m erce Act, 49 U.S.C. § 16(2 ); etc.



15a

financial burden of the plaintiff's litigation. In the instant case, 
that appellee’s prosecution of this suit to bring Ohio’s leg­
islative districts within the requirements of the one man — 
one vote rule benefited every Ohio voter is not questioned. 
However, as the Supreme Court pointed out in Hall, the class 
benefit theory can only be employed where the court has 
the requisite jurisdiction to make such an award. 412 U.S. 
at 5. In this case the district court clearly had jurisdiction 
over the appellants insofar as the suit involved a plea for in­
junctive relief to force constitutional reapportionment.

The Eleventh Amendment, however, contains an express con­
stitutional limitation on the power of the federal courts.

“The Judicial power of the United States shall not be 
construed to extend to any suit in law or equity, com­
menced or prosecuted against one of the United States by 
Citizens of another State or by Citizens or Subjects of any 
foreign State.”

Through judicial interpretation, this amendment has been held 
to bar a citizen who would bring suit against his own state. 
Employees v. Missouri Public Health Dept., 411 U.S. 279 
11973); Pardon v. Terminal Taj. of the Alabama State Docks 
Dep’t., 277 U.S. 184 (1964). This amendment has also been 
found to be the embodiment of the doctrine of sovereign 
immunity. Adams v. Harris County, Texas, 316 F. Supp. 938 
(S.D. Texas 1970), rev’d on other grounds, 452 F.2d 994 (5th 
Cir. 1971). The sovereign immunity of the states is, then, 
a limitation of federal judicial power, that is, on the consti­
tutional grant of jurisdiction to the federal courts.

As stated heretofore, the Eleventh Amendment’s immunity 
is unavailable to state officials where an action of constitu­
tional proportions is brought for injunctive relief. Georgia R.R. 
and Banking Co. v, Redminc, supra, etc. The rationale behind 
the doctrine of sovereign immunity is the protection of the 
states’ fiscal integrity.. See, Land v. Dollar, supra; Dugan v. 
Rank, supra; Harrison Construction Co. v. Ohio Turnpike

Opinion of United States Court of Appeals
April 25,197A



16a

Comn., supra. “Thus the rule has evolved that a suit by priv­
ate parties seeking to impose a liability which must be paid 
from public funds in the state treasury is barred by the Eleventh 
Amendment.” Eclehnan v. Jordon, -12 U.S.L.W. 4419, 4422 
7 U.S. March 26, 1974); accord, Kraus v. Rhodes, supra.

In Sincock v. Ohara, 320 F. Supp. 109S (Del. 1970), a reap- 
portionment suit similar to the one at bar, a three-judge district 
court concluded that an award of attorneys’ fees could not 
be made against the State of Delaware because of the prohi­
bition contained in the Eleventh Amendment. On the other 
hand, appellees point out that in Sims v. Amos, 340 F. Supp. 
691 (M.D. Ala. 1972), the district court awarded attorneys’ 
fees against Alabama’s state legislators, secretary of state, at­
torney general and governor on the basis of the class benefit 
doctrine. Unfortunately, it is impossible to determine from the 
opinion whether the award was made against the above of­
ficials in their official capacities or as private individuals, there 
is no indication that the State of Alabama was held liable, and 
the court did not deal with the Eleventh Amendment prob­
lems presented here.7

Sims was appealed to the Supreme Court. Appellees assert 
that the Supreme Court's affirmance of Sims, 409 U.S. 942 
(1972), conclusively establishes a district court’s power to 
award attorneys’ fees against a state in a suit brought to en­
force constitutional rights. We do not agree. Sims v. Amos 
was reported in two segments at the district court level: the 
first report, dealing with the substantive reapportionment is­
sues, is found at 336 F.Supp. 924, while the decision involving 
the claim for attorneys’ fees appears at 340 F. Supp. 691. The 
affirmance relied upon sO heavily by appellees was by an 
order without opinion which noted only that Sims v. Amos, 
336 F. Supp. 924, was affirmed. 409 U.S. at 942. The impli­
cations, of the Court’s failure to mention the portion of Sims

Opinion of United States Court of Appeals
April 25,1974

7 The E leventh  A m endm ent w as m entioned by th e  d is tric t court in 
S im s  bu t only in a footnote, and not on the o recise question  before th is 
Court. Sims v. Amos, 340 F. Supp. 691, 694, n. 8.



17a

appearing in 340 F. Supp. are unclear, but in any case, we 
are unable to find in the simple order of affirmance on the 
reapportionment issues any helpful precedent on the Eleventh 
Amendment question here presented.

In Gates v. Collier, 489 F.2d 298 (5th Cir. 1973), the court 
affirmed an award of attorneys’ fees against officials of the 
State of Mississippi responsible for impermissible conditions 
found in a state prison. The court approved the award even 
though the district court had prescribed that it was to be 
paid “from funds which the Mississippi Legislature, at its 1973 
Session, may appropriate for the operation of the Mississippi 
State Penitentiary 489 F.2d at 303. In reaching its
decision the court concluded that an “award of attorney’s fees 
is not an award of damages against the State, even though 
funds come from the state appropriations,” and therefore, it 
was not barred by the principle of sovereign immunity or by 
the Eleventh Amendment. 489 F.2d at 302. Primary reliance 
was placed upon Sims v. Amos, supra, although the court 
did cite a number of other cases for support.8 Whether an 
award of attorneys’ fees differs from an award of damages seems 
to us to be irrelevant, and we respectfully decline t6 adopt 
the position taken by the Fifth Circuit. For the reasons 
stated above, we find no precedent for such an award in Sims, 
and the balance of the cited cases dealt with awards against 
local governmental units, bodies which are not clothed with 
immunity.

Appellees have also called attention to two recent district 
court cases, Taylor v. Perini, 359 F. Supp. 1185 (N.D. Ohio 
1973) and La Raza Unida v. Volpe, 57 F.R.D. 94 (N.D. Cal. 
1972), in which, in our opinion, misplaced reliance on Sims 
was found to be dispositive. In Taylor, the court held that 
the Eleventh. Amendment does not immunize an official of

Opinion of United States Court of Appeals
April 25,1974

8 B rew er v. School B oard of C ity  of N orfolk, Va., 456 F.2d 943 (4th 
C ir 1972), cert, denied , 406 U.S. 933; Thom pson v. R ichland P arish  
Police Ju ry , 478 F.2d 1401 (5 th  Cir. 1973); W yatt v. S tickney , 344 
F. Supp. 387 (M.D. Ala. 1972).



18a

the State of Ohio from an award of attorneys’ fees, and or­
dered that state to pay the award. La Raza Unida involved a 
similar question on the propriety of an award of attorneys’ 
fees against an officer of the State of California, and the court 
reached the same result. Once again, we point out that in our 
opinion, Sims does not provide any assistance in deciding the 
Eleventh Amendment - question here presented. Further, we 
note that in the La Raza Unida case, the court was much im­
pressed by a California statute which provided that monetary 
claims against state officers were to be reimbursed by the 
state. Whether the court considered this a waiver of im­
munity does not appear, but the Supreme Court of Ohio has 
specifically held that the State of Ohio is immune from awards 
of attorneys’ fees in the absence of a consent rendered by a two- 
thirds vote of the General Assembly. Grandle v. Rhodes, 169 
Ohio St. 77, 157 N.E.2d 336 (1959); see also, Constitution of 
Ohio, Art. Ill, §§ 22 & 29. We hold that where, as here, 
a state has not .waived its sovereign immunity, the Eleventh 
Amendment bars a federal court from awarding attorneys’ fees 
against it.

One of the reasons given by the district court in this case 
for denying appellants’ Rule 60(b) motion was that, “the 
judgment entered herein is res judicata as to any issue which 
was or could have been raised in the initial proceedings.” 
While it is true, as the district court pointed out, that appel­
lants failed to object to the award until after the judgment 
was entered and execution proceedings undertaken, there 
are two reasons why the court should have granted the mo­
tion to vacate. First, a void judgment is no judgment at all 
and is Without legal ellect. Luhhen v. Selective Service System 
Local Bd. No. 27, 453 F.2d 645 (1st Cir. 1972). Secondly, the 
doctrine of “res judicata does not preclude a litigant from mak­
ing a direct attack [under Rule 60(b)] upon the judgment be­
fore the court which rendered it.” IB J. Moore, Federal Prac­
tice, H 0.407, at 931 (2d ed. 1973); see, United States v. United 
States Fidelity Guaranty Co., 309 U.S. 506 (1940); see also,

Opinion of United States Court of Appeals
April 25,1974



19a

Lubben v. Selective Service System Local Bd. No. 27, supra, at 
649.

Closely allied to the district court’s reasons for denying 
the motion to vacate is appellees’ suggestion that appellants 
and the State of Ohio have, by their failure to object until 
after the judgment and payment, waived’any immunity they 
may have had. A party cannot be precluded from raising the 
issue of voidness in a direct or collateral attack because of the 
failure to object prior to, or at the time of, entry of the 
judgment.

“The Eleventh Amendment declares a policy and sets 
forth an explicit limitation on federal judicial power 
of such compelling force that this court will consider 
the issue arising under the Amendment in this case even 
though argued for the first time in this court.” Ford Motor 
Co. v. Dep't of Treasury of Indiana, 323 U.S. 459, 467 
(1945).

And, “the Eleventh Amendment defense sufficiently partakes 
of the nature of a jurisdictional bar so that it need not be raised 
in the trial court . . . Edelman v. Jordon, 42 U.S.LAV. 4419, 
4427 (U.S. March 25, 1974). Thus, once it is determined 
that a state is not subject to federal jurisdiction because of 
the operation of the Eleventh Amendment, a court must va­
cate any judgment entered in excess of its jurisdiction. In 
light of the above analysis it is clear that the denial of appel­
lants’ motion to vacate under Fed. R. Civ. P. 60(b) was 
erroneous.

Lastly, appellees ask that we consider how critically im­
portant it is for plaintiffs in public interest litigation to have 
the right to obtain awards of attorneys’ fees and expenses. 
We fully recognize the often valuable service performed by 
the so-called “private attorney general” in protecting the 
constitutional rights of large segments of our society, but we 
are also mindful of the clear limitation on federal jurisdic­
tion in the Eleventh Amendment. This decision does not

Opinion of United States Court of Appeals
April 25,1974



20a

affect in any way the validity of awarding attorneys’ fees against 
non-sovereign defendants, and in view of its limited scope it 
is difficult to see why it would have the dire consequence of 
preventing public interest litigation that appellees envision.

The judgment of the district court entered June 12, 1973, 
denying appellants’ motion to vacate the award of attorneys’ 
fees and expenses is reversed, and the order of the district 
court dated May 19, 1972, is vacated. Each party shall pay its 
own costs bn appeal.

Opinion of United States Court of Appeals
April 25,1974



21a

Opinion of United States Court o f Appeals 
July 18, 1974

No. 73-1973

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Sa m u el  J. J ordon , ex  a l .,
Plaintiffs-Appellees, 

v.
J o h n  J, G illig a n , e t  a l .,

Defendants-Appellants.

A p p e a l  from the 
United States District 
Court for the North­
ern District of Ohio, 
Eastern Division.

Decided and Filed July 18, 1974

Before: P eck , M il l e r  and L ively , Circuit Judges.
P eck , Circuit Judge. This opinion is filed vice the opinion 

filed April 25, 1974, pursuant to an order entered herein of 
even date herewith granting defendants-appellants’ motion 
for a rehearing and withdrawing the April 25, 1974 opinion.

This is an appeal from an order entered in the district 
court denying appellants’ motion to vacate a prior order of 
that court awarding attorneys’ fees against the State of Ohio. 
The appellants’ principal assertion is that the award was 
void since, under the Eleventh Amendment to the Constitution 
of the United States, the State was immune from the award, 
and the court was without jurisdiction to make it.

The record establishes that in November of 1971, Samuel 
Jordon filed a class action suit against the members of the 
Ohio Apportionment Board, a state body responsible for the 
decennial reapportionment of the Ohio legislature. Included 
as defendants were state officials and members of the Ma­
honing County Board of Elections in their official capacities.



22a

The State of Ohio was not a named defendant. Plaintiff 
sought, on behalf of the class of all Ohio voters, a declaratory 
judgment that a reapportionment plan adopted by the Board 
was constitutionally infirm, and he asked that injunctions re­
quiring the Board to establish a revised plan that would satisfy 
applicable requirements be issued. Plaintiff also prayed for 
an award of attorneys’ fees against the defendants. Federal 
jurisdiction was invoked pursuant to 28 U.S.C. § 1343 for 
alleged violations of the Fourteenth and Fifteenth Amendments 
as implemented by 42 U.S.C. § 1983.

The Board’s original plan was declared unconstitutional by 
the three-judge district court convened to hear the case under 
the terms of 28 U.S.C. § 2281. The district court ordered 
appellants to submit a new plan that would comply with state 
and federal constitutional demands. A revised plan was duly 
submitted to and approved by the court in December of 
1971. After allowing appellees 60 days in which to file ob­
jections to the revised plan, the court entered a final order 
adopting it for the decennium.

Counsel for appellees filed applications for an award of 
attorneys’ fees and expenses in the combined amount of $27,- 
272.65. The district court, in the absence of any objections 
to the applications from appellants, entered the following order 
on May 19, 1972:

“Counsel for plaintiffs have made application for the 
allowance of attorney’s fees and expenses to date. There 
is no opposition to the amounts requested and they seem 
reasonable on their face. j

“Therefore, the State of Ohio, through John J. Gilligan, 
Governor; . . . collectively, in their official capacities, and 
as the persons responsible for apportioning the State of 
Ohio, are ordered and directed to pay attorney’s fees

Eight months passed and the judgment remained unpaid. On 
January 17, 1973, the district court ordered the award of 
attorneys’ fees and expenses taxed as costs against the State

Opinion of United States Court of Appeals
July 18, 1974



23a

Opinion of United States Court of Appeals
July 18, 1974

of Ohio.’ Appellees filed a praecipes for a writ of fieri facias 
against a bank account maintained by the State at a bank 
in Cleveland, Ohio, and the court acted to enforce it by order­
ing the bank to pay the contested monies to the clerk of the 
court.1 2

The appellants filed a motion to vacate the award of at­
torneys’ fees based on Rule 60(b) of the Federal Rules of 
Civil Procedure, and simultaneously filed a motion for stay 
of execution pending disposition of the Rule 60(b) motion. 
Shortly thereafter, but before the writ was enforced, the 
State paid the $27,272.65 judgment. In response to the volun­
tary payment, the district court vacated, by order, the attach­
ment of the State’s bank account. The court also issued an 
order denying appellants’ Rule 60(b) motion. It was from 
this denial that the present appeal was perfected.

Rule 60(b), Fed. R. Civ. P., provides in pertinent part 
as follows: “On motion and upon such terms as are just,
the court may relieve a party . . . from a final judgment, order, 
or proceeding for the following reasons: . . .  (4) the judg­
ment is void . . . .” If, as appellants assert, the award of 
attorneys’ fees and expenses against the State of Ohio was 
void for lack of jurisdiction, we must reverse. A void judg­
ment is a legal nullity and a court considering a motion to 
vacate has no discretion in determining whether it should be 
set aside. See generally, 7 J. Moore, Federal Practice, If 60.25 
[2], at 301 (2d ed. 1973).

before discussing the central issue in this case a few words 
of clarification are in order. This cause, insofar as the award

1 “By previous order . . . the S tate  of Ohio was ordered  to pay 
P la in tiffs  a tto rneys’ fees in th is action. The C ourt now being advised 
th a t the S tate  of Ohio has failed and continues to refuse to comply 
w ith  said order, now directs th a t P la in tiffs  a tto rneys’ fees and ex­
penses be taxed  as costs in  th is action.”

2 “The C ourt being advised th a t th e re  a re  funds being held  in  ex­
cess in the am ount of $27,272.65, it is ORDERED th a t the Union 
Com merce B ank tu rn  over and deliver funds in  the sum of $27,272.65 
to the C lerk of th is C ourt fo rthw ith ; said am ount rep resen ting  th e  sum 
designated and levied upon by the F ieri Facias.” O rder of F ebruary  
2, 1973.



24a

of attorneys’ fees is concerned, although nominally against the 
chief executive and other officials of the State of Ohio, in 
substance and effect was against the State.3 Any award of 
attorneys’ fees, whether against the State of Ohio or its offi­
cials, vitally affects the rights and interests of the State in 
preserving its revenues. According to the general rule “a 
suit is against the sovereign if ‘the judgment sought would 
expend itself on the public treasury . . . .’ Land v. Dollar,
330 U.S. 731, 738 (1947)___” Dugan v. Rank, 372 U.S. 609,
620 (1963); accord, Dawkins v. Craig, 483 F.2d 1191 (4th 
Cir. 1973). And as this Court stated in Harrison Construction 
Co. v. Ohio Turnpike Comn., 272 F.2d 337, 340 (6th Cir. 
1959), “When the action is in essence one for the recovery 
of money from the State, the State is the real, substantial party 
in interest and is entitled to invoke its sovereign immunity 
from suit even though individual officials are nominal defen­
dants.”

Appellants do not contend that state officials are immune 
from suits brought to restrain unconstitutional acts undertaken 
in their official capacities. The law clearly recognizes the 
right of an interested party to force state officials to act in 
accordance with the Constitution. Georgia R.R. and Banking 
Co. v. Redwine, 342 U.S. 299 (1952); Ex parte Young, 209 
U.S. 123 (1908); Lee v. Board of Regents of State Colleges, 
441 F.2d 1257 (7th Cir. 1971); Samuel v. University of Pitts­
burgh, 56 F.R.D. 435 (W.D. Pa. 1972); Wright, Law of 
Federal Courts, §48, at 183 (2d ed. 1970). Appellants do 
assert, however, that both a state and its officials are immune 
from monetary awards arising in connection with such a suit, 
even if the awards are for attorneys’ fees.

Opinion of United States Court of Appeals
July 18, 1974

3 T here can be no doubt th a t the d istric t cou rt in tended  th e  aw ard 
of a tto rneys’ fees to ru n  against the S tate  of Ohio, even though the 
S ta te  was not a p a rty  to this suit. A lthough the exact m eaning 
of the court’s May 19, 1972 order, quoted in  the tex t, is arguably  
unclear, any possible m isin terp reta tion  w as obviated by the Ja n u ary  
17, 1973 o rder (supra  note 2), and by the  subsequent a ttachm en t of 
the  S ta te ’s bank account.



25a

To further sharpen the focus of this inquiry, we note that 
in the instant case the district court ordered the attorneys’ 
fees taxed as costs, and ordered the State of Ohio to pay 
the costs.4 We do not question the general principle that a 
court may tax attorneys’ fees in the appropriate circumstances 
in cases involving private parties5 or where sanctioned by 
statutory law,6 but it seems basic that if a party is immune 
from an award of attorneys’ fees as such, that immunity is 
not altered by taxing the fees as part of the costs. If the 
award is void in one form, it is void in the other.

Stripped of distracting shadow questions, the case before 
us presents a singular, although by no means simple, issue: 
Does a federal court have the power to award attorneys’ fees 
against a state or its officials acting in their official capacities 
in a suit brought under 42 U.S.C. § 1983 to vindicate con­
stitutional rights? To this inquiry we must respond in the 
negative.

The Supreme Court reviewed and clarified the principles 
under which a federal court may award attorneys’ fees against 
an unsuccessful litigant in Hall v. Cole, 412 U.S. 1 (1973). 
The Court recognized the existence of a “class benefit” ration­
ale for awarding fees where “plaintiff’s successful litigation 
confers ‘a substantial benefit on the members of an ascertain­
able class Id, at 5. The basis of this theory is that

Opinion of United States Court of Appeals
July 18, 1974

4 O rder of Ja n u a ry  17, 1973, supra  note 2.
5 “A lthough the trad itional A m erican ru le  o rd inarily  disfavors the

allow ance of a tto rneys’ fees in  the absence of s ta tu to ry  o r contractual 
authorization, federal courts, in  the exercise of th e ir  equ itab le powers, 
m ay aw ard  a tto rneys’ fees w hen the in te rest of justice so requires. ’ 
Hall v. Cole, 412 U.S. 1, 4 (1973). Justice  has been held to so requ ire  
w here bad fa ith  is exhibited  by the unsuccessful litigan t or w here 
“plain tiff’s successful litigation  confers ‘a substan tia l benefit on m em ­
bers of an ascertainable class Id. a t 5.

This C ourt has also recognized the equitab le pow er to m ake such 
aw ards. Sm oot v. Fox, 353 F.2d 839 (6 th  Cir. 1965).

We take heed of the fact th a t in th is case the re  was no evidence 
of bad fa ith  on the p a r t of appellan ts or the S tate of Ohio.

6 S ta tu tes often provide for aw ards of a tto rneys’ fees. See. e.g., 
C layton Act, 15 U.S.C. § 15; Com m unications A ct of 1934, 47 U.S.C. 
§ 206; In te rs ta te  Com m erce Act, 49 U.S.C. § 1 6 (2 ); etc.



26a

because the efforts of the individual plaintiff benefited a 
group or class of persons, equity requires the group to share 
the financial burden of the plaintiff’s litigation. In the instant 
case, that appellee’s prosecution of this suit to bring Ohio’s 
legislative districts within the requirements of the one man — 
one vote rule benefited every Ohio voter is not questioned. 
Implicit in the Court’s holding was the fact that the class 
benefit theory can only be employed where a court has the 
requisite jurisdiction to make such an award. 412 U.S. at 5. 
In this case the district court clearly had jurisdiction over 
the appellants insofar as the suit involved a plea for injunctive 
relief to force constitutional reapportionment.

The Eleventh Amendment, however, contains an express 
constitutional limitation on the power of the federal courts.

“The Judicial power of the United States shall not be 
construed to extend to any suit in law or equity, com­
menced or prosecuted against one of the United States 
by Citizens of another State or by Citizens or Subjects 
of any foreign State."

Through judicial interpretation, this amendment has been held 
to bar a citizen who would bring suit against his own state. 
Employees v. Missouri Public Health Dep’t., 411 U.S. 279 
(1973); Parden v. Terminal Ry. of the Alabama State Docks 
Dep’t., 377 U.S. 184 (1964). This amendment has also been 
found to be the embodiment of the doctrine of sovereign 
immunity. Adams v. Harris County, Texas, 316 F. Supp. 
938 (S.D. Texas 1970), rev’d on other grounds, 452 F.2d 994 
(5th Cir. 1971). The sovereign immunity of the states is, 
then, a limitation of federal judicial power, that is, on the 
constitutional grant of jurisdiction to the federal courts.

As stated heretofore, the Eleventh Amendment’s immunity 
is unavailable to state officials where an action of constitu­
tional proportions is brought for injunctive relief. Georgia 
R.R. and Banking Co. v. Redwine, supra, etc. The rationale 
behind the doctrine of sovereign immunity is the protection

Opinion of United States Court of Appeals
July 18, 1074



27a

of the states’ fiscal integrity. See, Land v. Dollar, supra; 
Dugan v. Rank, supra; Harrison Construction Co. v. Ohio 
Turnpike Com’n., supra.

Appellees place primary reliance on Sims v. Amos, 340 F. 
Supp. 691 (M.D.Ala. 1972), a reapportionment suit involving 
the State of Alabama. Therein a three-judge district court 
awarded attorneys’ fees against Alabama’s governor, attorney 
general, secretary of state and state legislators on the basis 
of the class benefit doctrine. Although the opinion does not 
state that the award was made against the above officials 
in their official capacities, it is clear that that was indeed the 
case. We note, however, that the Eleventh Amendment prob­
lem before us was disposed of in rather summary fashion 
in a footnote to the opinion.7 Sims was appealed to the Su­
preme Court. Appellees assert that the Supreme Court’s sum­
mary affirmance of Sims, 409 U.S. 942 (1972), constitutes bind­
ing precedent on this Court in the case under consideration. 
We do not agree.

In our original opinion in the present case we pointed out 
that Sims was reported in two separate segments at the dis­
trict level. The initial Sims opinion, dealing with the sub­
stantive reapportionment issues, was reported at 336 F. Supp. 
924, while the decision involving attorneys’ fees appeared at 
340 F. Supp. 691. We also noted that the Supreme Court’s 
order of affirmance stated only that Sims v. Amos, 336 F. Supp. 
924, was affirmed.8 Since that time, however, it has come 
to our attention that in the bound version of Volume 409

Opinion of United States Court of Appeals
July 18, 1974

7 “8. Individuals who, as officers of a state, are  clothed w ith some 
duty  w ith  regard  to a law  of th e  sta te w hich contravenes the Con­
stitu tion  of the  U nited States, m ay be restra ined  by injunction, and 
in such a case the sta te  has no pow er to im p art to its officers any 
im m unity  from  such in junction  or from  its consequences, including 
the court costs inciden t there to .” S im s  v. Am os, 340 F.Supp. 691, 694, 
n. 8 (M.D. Ala. 1972) (citations om itted).

8 The P re lim inary  P rin t of Volum e 409 of the  Official R eports of
The Suprem e C ourt (U nited  S tates R eports) contained th e  follow ing 
s ta tem en t a t 942: “No. 72-12. Amos, S ecretary  of S tate of A labam a,
e t al. v. Sims e t al. Affirmed on appeal from  D.C.M.D.Ala. R eported 
below: 336 F.Supp, 924,”



28a

of the United States Reports that order has been expanded; 
it now states that both 336 F. Supp. 924 and 340 F. Supp. 
691 were affirmed.9 That modification,10 11 while it has prompted 
us to revise our original opinion, does not alter the conclusion 
reached therein.

Decisions of the United States Supreme Court rendered by 
written opinions are binding on all courts, state and federal. 
The Court’s holding is stare decisis and cannot be overruled 
except by the Court itself. Even the Court’s dicta is of per­
suasive precedential value. However, “[a] summary affirmance 
without opinion in a case within the Supreme Court’s obliga­
tory appellate ■jurisdiction [such as Sims] has very little prece­
dential significance.” Dillenburg v. Kramer, 469 F.2d 1222, 
1225 (7th Cir. 1972) (emphasis added) (citations omitted).

Two months after Dillenburg was announced, the Seventh 
Circuit made the following apparently inconsistant statement 
relative to this issue: “[A] summary affirmance [by the Su­
preme Court] is a decision on the merits having precedential 
value.” Jordan v. Weaver, 472 F.2d 985, 989 ( 7th Cir. 1973). 
In Jordan the court relied upon three separate three-judge dis­
trict court decisions which had been summarily affirmed by the 
Supreme Court,11 and upon one similar decision which had 
been affirmed by an opinion which did not mention the question 
in dispute (award of retroactive benefits)12 in reaching its de­

Opinion of United States Court of Appeals
duly 18, 1974

9 The bound version of volum e 409 U.S. 942 states as follows: “No. 
72-12. Amos, S ecretary  of S tate  of A labam a, e t al. v. Sims et al. 
Affirmed on appeal from  D.C.M.D.Ala. Reported below: 336 F.Supp.
924; 340 F.Supp. 691.”

’0 One court has a ttribu ted  “the court’s omission [of 340 F. Supp. 691] 
to inadvertence.” See Skehan  v. Board of Trustees, infra.

11 Sta te Dep’t of H ealth and R ehabilita tive Services  v. Zarate, 407 
U.S. 918 (1972), aff’g 347 F.Supp. 1004 (S.D. Fla. 1971); S te rre tt v. 
M others and Children’s R ights Organization, 409 U.S. 809 (1972), aff’g 
unreported  order and judgm ent of N.D. Ind. 1972 on rem and from  
Carpenter v. S terrett, 405 U.S. 971 (1971); Gaddis v. W ym an, 304 F. 
Supp. 717 (S.D.N.Y. 1968), aff’d per curiam  sub nom. W ym an  v. 
Bowens, 397 U.S. 49 (1969).

12 Shapiro  v. Thompson, 270 F. Supp. 331 (D.C. Conn. 1967), aff’d., 
394 U.S. 618 (1969).



29a

cision that the Eleventh Amendment did not bar actions 
against state officials for retroactive welfare payments. That 
decision was subsequently reversed by the Supreme Court. 
Edelman v. Jordan, 94 S.Ct. 1347 (1974). Mr. Justice Rein- 
quist, writing for a majority of the Court, touched upon the 
validity of summary affirmances:

“Shapiro v. Thompson and these three summary affir­
mances [see footnotes 11 & 12 and accompanying text] 
obviously are of precedental [sic] value in support of the 
contention that the Eleventh Amendment does not bar the 
relief awarded by the District Court in this case. Equally 
obviously they are not of the same precedental [sic] 
value as would be an opinion of this Court treating the 
question on the merits.” Edelman, supra, 94 S.Ct. at 
1359.

This position is in accordance with the views of the commenta­
tors:

Opinion of United States Court of Appeals
July 18, 1974

“While per curiam affirmances by the Supreme Court 
have been held to be binding precedents in later cases in 
the lower courts, they have so frequently proved to be 
such a shaky guide to the outcome of later full-dress con­
siderations, that in many decisions in the district courts 
and courts of appeals they have received but scant at­
tention. IB J. Moore, Federal Practice, H0.402[2] (1973 
Supp. at pp. 13-14).

For the reasons stated above, it is concluded that the Su­
preme Court’s summary affirmance of Sims v. Amos does not 
constitute controlling precedent on the Eleventh Amendment 
question herein presented.

There is no dearth of reported decisions on the attorneys’ 
fees issue in lower federal courts. Sims has been cited with 
approval and construed as precedent for awarding attorneys’ 
fees against states and their officials in the following cases. 
E.g., Jordan v. Fusari, No. 582 (2d Cir., filed April 29, 1974);



Bradenbarger v. Thompson, No. 72-2224 (9th Cir., filed March 
25, 1974); Gates v. Collier, 489 F,2d 298 (5th Cir. 1973); 
Taylor v. Perini, 359 F.Supp. 1185 (N.D. Ohio 1973), 
appeal argued, No. 73-2071 (6th Cir., April 15, 1974); La 
Raza JJnida v. Volpe, 57 F.R.D. 94 (N.D. Cal. 1972), afd,  
488 F.2d 559 (9th Cir. 1974) (no reference made to attorneys’ 
fees issue) .

In La Raza Unida v. Volpe, supra, the district court was 
much impressed by a California statute which provided that 
money claims against state officials were to be reimbursed 
by the state. Whether the court considered this a waiver of 
immunity does not appear, but the Supreme Court of Ohio 
has specifically held that the State of Ohio is immune from 
awards of attorneys’ fees in the absence of a consent rendered 
by a two-thirds vote of the General Assembly. Grandle v. 
Rhodes, 169 Ohio St. 77, 157 N.E.2d 336 (1959); see also, 
Constitution of Ohio, Art. Ill, §§ 22 & 29. The State of Ohio 
has not waived its immunity in this case.

In Gates v. Collier. supra, the Fifth Circuit affirmed an 
award of attorneys’ fees against officials of the State of Missis­
sippi responsible for impermissible conditions found in a state 
prison. In reaching its decision the court concluded that an 
“award of attorney’s fees is not an award of damages against 
the State, even though funds for the payment of costs come 
from the state appropriations.” 489 F.2d at 302. Whether an 
award of attorneys’ fees differs from an award of damages 
seems to us to be irrelevant, and we respectfully decline to 
adopt the position taken by the Fifth Circuit. The balance 
of the cases mentioned above rely in varying degrees upon 
Sims and each other. As stated hereinabove, we find no rea­
sonable basis for concluding that the Eleventh Amendment 
does not bar awards of attorneys’ fees against the sovereign 
states.

However, lower court decisions have not been unanimous. 
In Sincock v. Ohara, 320 F. Supp. 1098 (Del. 1970), a three-

Opinion of United States Court of Appeals
July 18, 1974



31a

judge district court concluded that an award of attorneys’ fees 
could not be made against the State of Delaware because of 
the prohibition contained in the Eleventh Amendment. The 
same result was reached by the Third Circuit in Skehan v. 
Board of Trustees, Bloomsburg State College, No. 73-1613 
(3rd Cir., filed May 3, 1974). In Skehan Judge Gibbons held 
that “Edehrian, [Edelman v. Jordan, supra] while not ruling 
on the matter specifically, appears to bar the award of at­
torneys fees from the state treasury as well.” (Slip opinion at 
18.)

Skehan involved, among other things, a claim for an attor­
ney’s fee against the defendant state college. The court 
remanded the case to the district court for a determination of 
the exact legal status of defendant under Pennsylvania law, 
stating that if it were not clothed with sovereign immunity 
the attorney’s fee could be awarded against it. The Court 
discussed Sims in a footnote, which we quote in its entirety:

“7. The contention could be made that, by failing to 
expressly overrule its summary affirmance in Sims v. Arnos, 
409 U.S. 942 (1972), affg 336 F. Supp. 924 (M.D. Ala. 
1972) (3-judge court) of an award of attorneys fees 
against state officers which was to be satisfied from the 
state treasury, the Court meant to leave the issue open. 
See Gates v. Collier, 489 F.2d 298 (5th Cir. 1973) follow­
ing Sims and quoting the jurisdictional statement raising 
the eleventh amendment issue before the Court. Such 
a conclusion would, however, be inconsistent with the 
Edelman Court’s rationale. We attribute the Court’s omis­
sion to inadvertence. For a listing of other decisions 
overruled, see note 6 supra.

“Skehan, pointing to language in Justice Marshall’s dis­
sent in Edelman v. Jordan, supra, contends that the lia­
bility of the Commonwealth for retroactive benefits in 
his case is still open. Justice Marshall wrote:

Opinion of United States Court of Appeals
July 18, 1974



32a

‘It should be noted that there has been no deter­
mination in this case that state action is unconstitu­
tional under the Fourteenth Amendment. Thus, the 
Court necessarily does not decide whether the States’ 
Eleventh Amendment sovereign immunity may have 
been limited by the later enactment of the Four­
teenth Amendment to the extent that such a limita­
tion is necessary to effectuate the purposes of that 
Amendment, an argument advanced by an amicus 
in this case. In view of my conclusion that any 
sovereign immunity which may exist has been 
waived, I also need not reach this issue.’ 42 U.S.L.W. 
at 4432 n. 2.

An appreciation of this cryptic comment requires some 
refined analysis of the issues dealt with in Justice Rehn- 
quist’s majority opinion. Claims for money against a 
state can arise in three separate legal frameworks. First 
the claim may be based upon state law, purely and sim­
ply; breach of contract, for example. Second, it may be 
based upon federal law made binding upon the states by 
virtue of the supremacy clause; nonpayment of benefits 
mandated by the Social Security Act, for example. Third, 
it may be based upon the fourteenth amendment, which 
binds the states directly and under § 5 of which Congress 
has the power to create remedies. Edelman involves 
retroactive welfare benefits withheld in violation of the 
Social Secruity Act, and thus falls in the second legal 
framework. A fourteenth amendment claim provided a 
basis for federal jurisdiction, but was not decided. See 
Hagans v. Lavine, 42 U.S.L.W. 4381 (U.S. March 25, 
1974). Thus Justice Marshall is technically correct that 
Edelman does not dispose of the third category. But the 
majority opinion expressly overrules Shapiro v. Thompson, 
supra, State Department of Health and Rehabilitative Ser­
vices v. Zarate, supra, and Wyman v. Bowens, supra, all 
fourteenth amendment cases. We think Edelman must 
be read as closing the door on any money award from a

Opinion of United States Court of Appeals
July 18, 1974



33a

state treasury in any category.” (Slip opinion, n. 7, p.
18) (emphasis supplied).

Careful study of the Edelman opinion leads us to conclude, 
as did the Third Circuit, that the Eleventh Amendment pro­
hibits the awarding of attorneys’ fees against unconsenting 
sovereign states. We note in particular the following language 
from that opinion: “Thus the rule has evolved that a suit
by private parties seeking to impose a liability which must 
be paid from public funds in the state treasury is barred by 
the Eleventh Amendment.” Edelman, supra, 94 S. Ct. at 
1356. Although appellees urge that attorneys’ fees are analo­
gous to costs, the taxing of which is permitted against states,13 
the test for determining whether a particular type of relief 
passes muster, as set out in Edelman, indicates the opposite. 
The Amendment bars any award which is “[m]easured in 
terms of a monetary loss resulting from a past breach of a 
legal duty on the part of the defendant state officials.” Edel­
man, supra, 94 S. Ct. at 1358. In our opinion, awards of 
attorneys’ fees fall within that classification and are, therefore, 
barred.

One of the reasons given by the district court in this case 
for denying appellants’ Rule 60(b) motion was that “the judg­
ment entered herein is res judicata as to any issue which was 
or could have been raised in the initial proceedings.” While it is 
true, as the district court pointed out, that appellants failed 
to object to the award until after the judgment was entered 
and execution proceedings undertaken, there are two reasons 
why the court should have granted the motion to vacate. First, 
a void judgment is no judgment at all and is without legal 
effect. Lubben v. Selective Service System Local Bd. No. 
27, 453 F.2d 645 (1st Cir. 1972). Secondly, the doctrine of 
“res judicata does not preclude a litigant from making a 
direct attack [under Rule 60(b)] upon the judgment before

Opinion of United States Court of Appeals
July 18, 1974

13 Fairm ont Cream ery Co. v. M innesota, 275 U.S. 70 (1927).



34a

the court which rendered it.” IB J. Moore, Federal Practice,
0.407, at 931 (2d ed. 1973); see, United States v. United 

States Fidelity Guaranty Co., 309 U.S. 506 (1940); see also, 
Lubben v. Selective Service System Local Bd. No. 27, supra, 
at 649.

Closely allied to the district court’s reasons for denying the 
motion to vacate is appellees’ sugestion that appellants and 
the State of Ohio have, by their failure to object until after 
the judgment and payment, waived any immunity they may 
have had. A party cannot be precluded from raising the issue 
of voidness in a direct or collateral attack because of the failure 
to object prior to, or at the time of, entry of the judgment.

“The Eleventh Amendment declares a policy and sets 
forth an explicit limitation on federal judicial power of 
such compelling force that this court will consider the 
issue arising under the Amendment in this case even 
though argued for the first time in this court.” Ford 
Motor Co. v. Dep/t of Treasury of Indiana, 323 U.S. 459, 
467 (1945).

And, “the Eleventh Amendment defense sufficiently partakes 
of the nature of a jurisdictional bar so that it need not be 
raised in the trial court . . . .” Edelman v. Jordan, 94 S. Ct. 
1347, 1363 (1974). Thus, once it is determined that a state 
is not subject to federal jurisdiction because of the operation 
of the Eleventh Amendment, a court must vacate any judg­
ment entered in excess of its jurisdiction. In light of the 
above analysis it is clear that the denial of appellants’ motion 
to vacate under Fed. R. Civ. P. 60(b) was erroneous.

Finally, appellees ask that we consider how critically im­
portant it is for plaintiffs in public interest litigation to have 
the right to obtain awards of attorneys’ fees and expenses. 
We fully recognize the often valuable service performed by 
the so-called “private attorney general” in protecting the con­
stitutional rights of large segments of our society, but we

Opinion of United States Court of Appeals
July 18, 1974



Opinion of United States Court of Appeals
July 18, 1974

are also mindful of the clear limitation on federal jurisdiction 
in the Eleventh Amendment. This decision does not affect 
in any way the validity of awarding attorneys fees against 
non-sovereign defendants, and in view of its limited scope 
it is difficult to see why it would have the dire consequence 
of preventing public interest litigation that appellee envisions.

The judgment of the district court entered June 12, 1973, 
denying appellants’ motion to vacate the award of attorneys 
fees and expenses is reversed, and the order of the district 
court dated May 19. 1972, is vacated.



ME1LEN PRESS INC. —  N. Y. C. 219