Appellees' Response to Defendants-Appellants Supplemental Brief

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IN THE 

  

UNITED STATES COURT OF APPEALS 

FOR THE FI1PTH CIRCUIT 

  

No. 76-1865 

  

DELORES NORWOOD, et al., 

Plaintiffs-Appellees, 

Vv. 

D.L. HARRISON, SR., et al. 

Defendan ts-Appellants. 

  

On Appeal from the United States District Court 
for the Northern District of Mississippi 

  

APPELLEES' RESPONSE TO DEFENDANTS-APPELLANTS 
SUPPLEMENTAL BRIEF 

  

JACK GREENBERG 

MELVYN R. LEVENTHAL 

. 10 Columbus Circle 

> Suite 2030 
New York, New York 10019 

FRED 1.. BANKS, JR. 

538 1/2 North Farish Street 
Jackson, Mississippi 39202 

Attorneys for Plaintiffs- 

Appellees 

 



  

. 2 4 
IN THE 

  

UNITED STATES COURT OF APPEALS 

FOR THE ‘FIFTH CIRCUIT 

  

No. 76-1865 

  

DELORES NORWOOD, et al., 

Plaintiffs-Appellees, 

¥Y. 

D.L. HARRISON, SR., et al. 

Defendants-Appelleants. 

  

On Appeal from the United States District Court 
for the Northern District of Mississippi 

  

APPELLEES' RESPONSE TO DEFENDANTS-APPELLANTS 

SUPPLEMENTAL BRIEF 

  

1. Public Law 94 559 - The Civil Rights Attorney's 
  

Fees Awards Act of 1976. 
  

Defendants state that the Act does "not speci- 

fically include States pursuant to Fitzpatrick v. Bitzer... 
  

and therefore does not act to permit fees in this case." 

Supplemental Brief, p. 6. 

The critical facet of the legislative history, 

the Report of the Senate Committee on the Judiciary, 

states: 

 



    

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Fee awards are therefore provided in 
cases covered by S. 2278 [the subject 
statute] in accordance with Congress’ 
powers under, inter alia, the Fourteenth 
Amendment, Section 5. As with cases 
brought under 20 U.S.C. 1617, the Tmer- 
gency School Aid Act of 1972, defendants 
in these cases [i.e., inter alia, §1983] 
are often State or local bodies or State 
Or local officials, In such casee it LS 
intended that the attorneys' fees, like 
other items of costs, will be collected 
either directly from the official in his 
official capacity, from funds of his agency 
or under his control, or zZrom the State or 
local government (whether or not the agency 
or government is a named party). 

  

  

  

  

  

  

  

  

  

  

  

Committee on the Judiciary, Report, Civil 
Rights Attorneys' Fees Award Act, [S.2278] 
P.L. 94-559, p.5 (footnotes omitted). 

This language is clearly tailored to accommodate 

the reasoning of Fitzpatrick v, Bitzer and the facts of 
  

the instant case. 

Defendants next assert that defendants herein are 

not "persons" within §1983. We have already pointed 

out that 20 U.S.C. §l1617 [Emergency School Aid Act of 

1972] by its terms upholds Judge Keady's award against 

these very defendants. The legislative history of P.L. 

94 559, cited above, refers specifically to the 1972 

enactment as authorizing such awards. This same legis- 

lative history holds that awards against state officials 

are mandated by the 1976 statute. And the 1976 statute 

itself says that "In any action or proceeding to enforce 

 



  

    

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a provision of section ... 1979... of the Revised Statutes 

[42 U.S.C. §1983]... tha Court in lts discretion may 

allow the prevailing party other than the United States, 

a reasonable attorney's fee as part of the costs." It 

is therefore clear that Congress has indeed revised 

§1983 to include state and local officials in the term 

"persons" at least for the purposes of fee awards. 

Here again, defendants argument merely diverts the 

court's attention from the critical holding of Fitzpatrick 
  

and the absence of any real issue in this appeal: under 

City of Konosha, 412 U.S. at 513-514, the Court alludes to 
  

the impact of having individual agency officials as named 

defendants; Clark and Olson cited by defendants on page 7 

of their Supplemental Brief are both cases in which state 

agencies and not individual state officials are named. 

And in this case, of course, all members of the textbook 

board were named individually and are "persons" within the 

meaning of §1983. The Supreme Court in this very case - 

indeed, it's the law of the case - upheld jurisdiction 

under §1983 against these defendants. 

2. Mississippi is not an indispensable party. 
  

Defendants do not properly perceive the 

language of the district court relevant here. It reads 

as follows: 

 



    

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[T] the Attorney General of Mississippi 
has from the first assumed full control 
of the defense of this action. He had 
unquestioned authority to do so, invested 
as he 1s by state law with 'the sole power 
to bring or defend a lawsuit on behalf of 
a state agency, the subject matter of which 
is of statewide interest.' Miss. Code Ann. 
§7-5-1 (1972). (A.105) 

The point here is that no matter who was named 

as a defendant -- the State of Mississippi or the mem- 

bers of the Textbook Purchasing Board itself -- the 

same attorney general would have defended this action. 

No additional lawyers would appear and no additional 

defenses would be raised. It is one thing to argue 

that indispensable parties have not had an opportunity 

to protect their interests through adversarial proceed- 

ings; it is quite another to assert, as do defendants 

here, that even though all defenses to the award of 

fees were entered by the Attorney General, the judgment 

is technically improper. 

As we noted in our brief the award of fees is to 

be paid from a separate fund, removed from the State 

treasury, and is entirely under the control of the 

named defendants (Motion for Summary Affirmance and 

Brief for Plaintiffs-Appellees, p.8). 

In response to plaintiffs argument that none of 

the cases cited by defendants involved an action which 

 



    

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included any state agency, defendants now advance two 

19th Century cases which are readily distinguishable: 

both Christian,and Schild involved controversies in 
  

which the powers and responsibilities of the State 

vis-a-vis individual government officials was a tangled 
  

web with it not at all clear that the named defendants 

were responsible for all the alleged wrong or in control 

of the subject matter of the action. 

3. The deposition of Marshall Snowden and the 

memorandum circulated by defendants are advanced only 

as icing to rebut defendants' claim that they did not 

act "purposefully or with actual or constructive 

knowledge of discriminatory impact." See Brief for 

Defendants-Appellants. Our principal response is that 

this assertion is no more than a claim of "good faith" 

which was effectively disposed of by Judge Keady below. 

410 FP, Supp. at 141]. 

We do not concede for a moment that defendants 

have adequately demonstrated that the memorandum was 

issued innocently, but an extended discussion can only 

divert the Court's attention from the frivolousness of 

the underlying argument that an award under §1617 turns 

on whether defendants acted "purposefully" or "with 

actual or constructive knowledge of discriminatory 

impact." 

 



    

  

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4. There has been no cross-appeal challenging 

    
the amount of the fee set by Judge Keady, 410 F. Supp. 

at 141-142. We do not concede that the trial court 

properly applied Johnson v. Georgia Highway EXpress 
  

standards; and the legislative history of the 1976 

attorneys' fee statute makes it clear that the fee 

awarded was inadequate. In the event that panel 

determines to affirm summarily, we ask that it speci- 

. fically disclaim that it is in any way ruling on this 

facet of Judge Keady's decision. 

Again we urge the Court to summarily affirm the 

district court's opinion and judgment. 

CERTIFICATE   

This is to certify that the undersigned has on this 

day caused to be mailed through the United States Mail 

postage prepaid, one copy of Appellees' Response to 

Defendants-Appellants Supplemental Brief to the following: 

Peter M. Stockett, Jr.r Esq. 
Special Assistant Attorney General 

Post Office Box 220 
4 Jackson, Mississippi 

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MELYYN R. LEVENTHAL [||b44e0bde-159e-4453-9472-9241dca71273||]