Nazareth Gates, Cross-Appellants, and United States of America, Plaintiff-Intervenor v. John Collier, Cross-Appellees
559 F.2d 241
5th Cir.
1977
Check Treatment

*1 Plaintiffs-Appel- al., et GATES Nazareth

lees, Cross-Appellants, America, Plaintiff-Inter-

venor, Appellee, al., Defendants-Appel- et COLLIER

John Cross-Appellees. lants,

No. 76-1549

Summary Calendar.* Appeals, United States Summer, Gen., Atty. Roger A. F. P. Jr., Sp. Gen., Asst. Googe, Atty. Peter M. Stockett, Jr., Jackson, Miss.,for defendants- cross-appellees.

appellants, Parker, III, Jackson, Miss., Roy Frank R. Colo., Haber, Boulder, plaintiffs-ap- S. cross-appellants. pellees, Moore, Barnett, F. Walter W. Jes- Shawn Silver, Attys., Dunsay Stanley J. Pot- sica Gen., Div., Atty. Asst. tinger, Justice, C., Washington, D. H. M. Dept, Oxford, Miss., Atty., Ray, plain- U. S. tiff-intervenor, appellee. COLEMAN, GOLDBERG and

Before GEE, Judges. Circuit GEE, Judge: is, may hope, appearance the last This litigation lengthy challenging prison of this Mississippi conditions State Peniten- tiary.1 We here concerned appeal fees. This * 14, 1973, February 18, Cir.; Enterprises, On the district Inc. see Isbell Rule al., Casualty New York et fees on and reim Co. of awarded Citizens 1970, $10,986.05. expenses plaintiffs’ I. Part This bursed was affirmed 13, 1972, held September the district court 1. On intervening of Edelman v. The Penitentiary operation of Parchman rights of the in- the constitutional violated F.Supp. mates. findings affirmed at 501 merits were on the *2 court, Act of the efforts of the district court latest the

from in this un- shifting signposts the may prevailing follow the party, to allow other Following our instructions to area. charted States, the than a reasonable at- light attorneys’ Alyes- fees reconsider torney’s part fee as of the costs.4 v. Wilderness Co. Socie- Pipeline ka Service 94-559, P.L. 2641. this Stat. Given stat 240, 95 S.Ct. ty, 421 U.S. utory authorization and the Supreme Jordan, Edelman v. (1975), and Court’s decision to vacate and remand Stan the 651, 94 S.Ct. Bond,5 ton v. we need determine prior reaffirmed its district the new Act permits whether awards costs2 attorneys’ fees and but reasonable against state officials in their capac official any attorneys’ fees or costs plaintiffs denied despite proscription ities the of the Elev proceedings. appellate incurred Amendment,6 enth as elucidated in Edel (N.D.Miss.1976). ap- Both sides F.R.D. Jordan, supra. man v. to withhold disposi- We determined pealed. appeal pending by a decision the Supreme Edelman the Court Bond,3 Supreme Stanton wrong- overturned a retroactive award of the Circuit had awarded at- which Seventh fully withheld welfare benefits fees by private parties seeking impose “a suit to authorization, statutory based on absence which liability public a must be from However, finding of bad faith. the a treasury by in the state funds Rights Attorney’s Fees recent Civil Award Eleventh Amendment.” 415 (R.S. 722) amends U.S.C. 1988 to § § say at 1356. The Court was careful S.Ct. to statutory authorization mandat- provide that the Eleventh Amendment did not by Alyeska and removes the necessity ed prospective injunctions hibit even when conditioning attorneys’ an award of relief would require expenditure as this on bad faith in such cases of defend- ancillary state revenues. “Such an effect treasury permissible on the state any proceeding action or enforce a consequence an inevitable prin- often 1977, 1978, 1979, of sections provision ciple parte Young, announced in Ex supra.” Statutes, and 1981 of the Revised S.Ct. Lower courts Law title IX of Public or in any attorneys’ were left to wonder if fees were proceeding, by or civil action or on behalf monetary akin to the prohibited restitution of the United States of to en- or by merely ancillary Edelman force, charging a or violation a injunctive relief. The of the United States Internal Reve- Third and Sixth Cir- sion Code, or title VI of the Rights nue cuits have held that the Eleventh Amend- Alyeska Pipeline 4. Service Co. v. Effective October 1976. Revised Statute Society, 1981; Wilderness § 1977 refers to U.S.C. R.S. § § 1982; (1975), caused the Fifth § 44 L.Ed.2d 141 refers 42 U.S.C. R.S. 1979 refers to 1983; sitting R.S. en banc to vacate and remand these U.S.C. refers to 42 1985; judgments attorneys’ and R.S. U.S.C. refers to 42 reconsideration brought pursu- This action was light U.S.C. 1986. of these two decisions. (R.S. 1975) (en banc). §§ ant to and 1985 The district 1979 and attorneys’ §§ reassessment of fees follow- court’s Alyeska ing is the Edelman Supreme 5. The Court vacated and remanded appeal. 70 F.R.D. 341 for further consideration in of Civil F.Supp. 2. 371 Fees Awards Act. 429 U.S. 50 L.Ed.2d 581 3. 426 U.S. Stanton, (1976), granting cert. in Bond v. 6. The Judicial of the United States shall compel an action to any not be construed extend to suit in law or comply with an officials amendment prosecuted equity, commenced or one Act, Security Title XIX of the Social 42 U.S.C. by of the United States Citizens of another 1396-1396g. State, §§ Subjects any Foreign or Citizens or State. 1972, defendants in these cases are often prohibits First, state.7 The Second a State or local bodies State or local them to have have found Circuits Fourth officials. In such it is intended that on the state trea- ancillary effect only the fees, like other items of Edelman8 All of permissible under sury costs, will be collected either directly holdings predate these official, from in his official capacity, *3 Bitzer, v. 427 Fitzpatrick in U.S. from funds of his agency under his (1976), 96 S.Ct. control, or from the or local govern- State Title VII authorizing an amendment that (whether or not the agency or monetary damages award a federal government party). named against a individual state private to a S.Rep. No. Cong., 94th 2d Sess. violate the Eleventh does not government Cong. U.S.Code & Admin.News Amendment. pp. Congress expressly intend Eleventh Amend- think that [W]e ed the new act to apply to all pending ment, principle of state sover- and the 9 the time of at its enactment. H.R. No. embodies, see Hans which it v. eignty 4, n.6, Cong., at 94th 2d (1976). 1558 Sess. Louisiana, 10 S.Ct. Bradley also v. City See School Board of necessarily limited L.Ed. 842 Richmond, U.S. provisions of 5'of by the enforcement Rainey In v. Jackson . . . Fourteenth Amendment. College, (5th 551 F.2d 672 State Cir. may, in Congress deter- We think that our court concluded that combination “[t]he “appropriate legislation” what is mining Fitzpatrick Civil Rights Attor enforcing purposes ney’s Awards Act of 1976 establishes Amendment, pro- of the Fourteenth sions that the Eleventh Amendment is no longer against suits states or private vide for a bar to the attorney’s are constitutionally officials which state against a state actions under the statutes contexts. impermissible in other enumerated in the Act.” at 675. at 445 at Muzquiz City Antonio, Court went on to Nor does v. L.Ed.2d at 621-22. The San (5th award of 1976) (en affirm the lower court’s 528 F.2d 499 banc), Cir. pre- against finding vent the they expressly Congress authorized officials in capacities. their official “Congress’ Title VII cases and that exer- Muzquiz narrowest reading its held that respect cise of also not injunctive relief tantamount to a Id., by the Eleventh Amendment.” money judgment for restitution does not lie individual of a govern- members entity in capacities mental their official entity when the person The Civil Fees Awards itself is not a pursuant purposes. of 1976 was enacted Post-Muzquiz Con- decisions of gress’ powers under Fourteenth this court have recognized jurisdic- Amendment, specifically contem- individual members of a gov- as state officials intended plates defend- capacities ernmental board in their official injunctive when or declaratory relief was under 20 brought sought. Campbell As with cases v. County Gadsden Dis- Emergency School Aid Act Board, (5th trict School 534 F.2d 650 Cir. Bloomsburg (2d 1974); Jenkins, 7. Skehan v. Board of Trustees of Cir. Thonen v. (3d 1974); College, 1975). (4th State Cir. Jor 517 F.2d 3 Cir. Gilligan, (6th 1974). don v. F.2d Cir. 9. A motion to recommit the bill in order limit NAACP, Beecher, Chapter Inc. v. 8. Boston coverage pending its cases was defeated in Bitzer, (1st 1974); Fitzpatrick v. F.2d Cir. Representatives 268 the House of 1975); Norton, (2d Class v. 519 F.2d 559 Cir. Cong.Rec.H. 12166. Fusari, 1974); (2d Jordan F.2d 123 v. Parsons, 532 F.2d 485-86 v. 1976); McGill Dekle, 1976); Thurston v. (5th Cir. .1 n America, UNITED STATES of question Plaintiff-Appellee, against official defend attorneys’ fees specifically preter was Muzquiz after ants Thetford, Abbott v. Byron EVANS, mitted Wesley William a/k/a Evans, Evans, and Lois A. Fitzpatrick holdings Bradley Defendants-Appellants. congressional directive to al clear awarded in civil attorneys’ fees to be

low UNITED STATES of cases, interpret choose not rights Plaintiff-Appellee, expansively challenge as to Muzquiz so authority. formidable *4 EVANS, Boyd Defendant-Appellant. E. $41,750 for reasonable at- The award $10,986.05 for reimbursa- fees and Nos. 76-1972 and 76-2498. from the date of expenses, plus interest ble The denial is affirmed. of attor- judgment, Court of Appeals, appellate proceedings is neys’ fees for re- and the case is remanded in- versed to award reasonable structions proceedings post-judgment as au- En Rehearing Rehearing Banc the Civil thorized Denied Oct. Act of 1976. Awards PART, IN IN AFFIRMED REVERSED REMANDED. AND

PART

COLEMAN, Judge, concurring. in the award of

I concur for at- $10,986.05

torneys’ fees and for reimbursa- but I do so expenses, because Con-

ble to require has seen fit it.

gress pur-

I also concur remand for the allowing the District

pose Court to con- award, an of reasona-

sider post-judgment fees for

ble Speaking for

ceedings. myself only I do attorneys mean to infer that are man-

not to be

datorily entitled for time and expended ascertain the amount

effort collect, a fee. That is primarily benefit, not benefit of the in

their pauperis plaintiffs. opinion does

forma speak to this but I wish to state

not point, which is now

my awareness for the initial consideration and deci-

left the District Court.

sion of