J. B. Taylor v. E. P. Perini, Superintendent ( 1974 )

EDWARDS, Circuit Judge

(dissenting).

In this case this court is faced for the first time with the following question:

After a federal district judge has heard a lawful suit against a state official (here the Superintendent of a state correctional institution) and entered an appropriate order (here by consent decree) which was clearly within his jurisdiction restraining him (the Superintendent) from continuing practices found (and here conceded) to have been in violation of the federal constitution, does an 11th Amendment defense prohibit that judge from ordering payment of an attorney fee (here conceded to be equitably appropriate and reasonable) to the counsel the District Judge had appointed to represent the indigent plaintiffs where the state through its Attorney General has represented the state official in his official capacity throughout the litigation, and the state would have to pay the fee awarded ?

Phrased in more general terms the question may likewise be stated:

Does an 11th Amendment defense prohibit an otherwise equitable and appropriate award of attorneys’ fees to the prevailing party in a suit to restrain a state official from violating the U.S. Constitution while acting in his official capacity ?

I would answer the questions “No” because :

1) The 11th Amendment contains no prohibition against costs or attorneys’ fees awarded in a successful suit filed against state officials as opposed to the state itself.

2) The Supreme Court of the United States has squarely decided this identical issue in a recent case which is binding upon this court. Sims v. Amos, 336 F.Supp. 724, 340 F.Supp. 691 (M.D.Ala.), aff’d, 409 U.S. 942, 93 S.Ct. 290, 34 L.Ed.2d 215 (1972).

3) There is no precedent which either directly or by implication supports such a prohibition and there is much historic precedent from the Supreme Court and other Courts of Appeals (and statutory interpretation by the U.S. Congress) which argues strongly to the contrary.

4) This court as a whole has never passed upon the merits of this issue, although two different panels have by inadvertence recently reached opposite conclusions thereon. See Jordan v. Gilligan, 500 F.2d 701 (6th Cir. 1974) and Milburn v. Huecker, 500 F.2d 1279 (6th Cir. 1974).

THE 11th AMENDMENT

The 11th Amendment to the Constitution provides:

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

It should be noted that the Constitutional language does not in its terms bar suits by citizens of a state against that state. Such a prohibition has, however, been implied by settled Supreme Court precedent. Hans v. Louisiana, 134 U.S. 1, 10-11, 10 S.Ct. 504, 33 L.Ed. 842 (1890). Nonetheless neither the specific language of the 11th Amendment nor any Supreme Court interpretation of it purports to bar suits against state officials to restrain them from violating the Constitution of the United States. (Indeed the cases where the federal courts have exercised such jurisdiction are legion.) And there is likewise neither 11th Amendment language nor Supreme Court precedent which holds that attorneys’ fees if otherwise legally justified are prohibited in an otherwise lawful, appropriate and successful suit against a state official acting in his official capacity.

THE CONTROLLING CASE

The identical issue which divides us in this case has recently been decided by the United States Supreme Court. In Sims v. Amos, 336 F.Supp. 924, 340 F. Supp. 691 (M.D.Ala.) aff’d 409 U.S. 942, 93 S.Ct. 290 (1972) a three-judge court, after entering an order for reapportionment, awarded to the Plaintiffs attorneys’ fees and expenses against the Governor, the state legislators, the Attorney General and the Secretary of State. On direct appeal to the United States Supreme Court these defendants represented to that court that the award of attorneys’ fees and expenses against the named state officials sued in their official capacities “was tantamount to the award of a money judgment against the State of Alabama.”

The Supreme Court of the United States affirmed the judgments of the three-judge District Court summarily and unanimously. In Jordan v. Gilligan, 500 F.2d 701 (6th Cir. 1974) on rehearing after the applicability of this af-firmance to the attorneys’ fees question became certain, the opinion of the court (upon which the majority in this case relies without discussion) held that because the Supreme Court affirmance of Sims v. Amos, supra, was summary in character and rendered without opinion, it was not precedent which was binding upon this court.

Respectfully I disagree. The fact that some justices of the Supreme Court may feel that a summary affirmance carries less weight with them than an argued case decided by full opinion and hence is easier for them to overrule, gives this court no right or power to overrule or disregard any decision of the United States Supreme Court. The Supreme Court (while paying respect to the doctrine of stare decisis) still has (and exercises) the absolute power to overrule any of its prior decisions whether decided by summary order or full opinion. This court has no power to overrule any Supreme Court decision. On the contrary, even if the great majority of our court feels that a decision of the Supreme Court is wrong in law and equity (See Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974) (majority opinion) and cf. Bradley v. Milliken, 484 F.2d 215 (6th Cir. 1973) (majority opinion)), we are bound to follow and give effect to that decision. Indeed in the majority opinion in Milli-ken v. Bradley the Chief Justice relied upon a Supreme Court summary affirmance of a three-judge court decision in arguing by analogy that our court had erred. 418 U.S. 717, 741, 94 S.Ct. 3112 (1974) citing Spencer v. Kugler, 326 F. Supp. 1235 (D.N.J.), aff’d 404 U.S. 1027, 92 S.Ct. 707, 30 L.Ed.2d 723 (1972).

The Second Circuit has recently had occasion to review the question as to whether a summary order of the Supreme Court is controlling precedent. It held:

“Plaintiffs argue that the way is now open for the district court to consider their constitutional claim because of the following language in Mr. Justice Rehnquist’s majority opinion in Edel-man v. Jordan, supra:

‘[T]hese three summary affirm-ances obviously are of precedential 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 precedential value as would be an opinion of this Court treating the question on the merits.’

“415 U.S. at 671, 94 S.Ct. at 1359 (emphasis added). According to plaintiffs, the Supreme Court has thus made clear that the lower federal courts are free to disregard as binding precedent a summary affirmance by the Court like Romero.

“We do not agree with this argument. The language quoted above does not say that the circuit courts can disregard summary affirmances by the Supreme Court. At most, it seems to suggest that the Court itself would feel less bound by principles of stare de-cisis in dealing with issues already decided by a summary affirmance. But we continue to believe that the privilege of disregarding even summary Supreme Court holdings rests with the court alone. As we said in our prior opinion, 478 F.2d at 540 :

[GJiven Romero, the slate is not clean; plaintiffs must obtain any further writings on it in this case from the Supreme Court.”

Doe v. Hodgson, 500 F.2d 1206 at 1207-1208 (2d Cir. 1974).

I agree. I feel that the Supreme Court order of affirmance in Sims v. Amos is absolutely binding upon us. It should be noted that Sims v. Amos is directly in point as to the facts of our instant case and requires our affirmance of the District Judge’s award of attorneys’ fees in this case.

OTHER PRECEDENT

Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347 (1974), shows that the Supreme Court is unanimously committed to suits against state officers for prospective restraint of violations of the Federal Constitution — even where the judgment results in a financial burden being placed on the state and there has been an 11th Amendment defense.

In Edelman the Supreme Court majority opinion said:

“The injunction issued in Ex parte Young [209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908)] was not totally without effect on the State’s revenues, since the state law which the Attorney General was enjoined from enforcing provided substantial monetary penalties against railroads which did not conform to its provisions. Later cases from this Court have authorized equitable relief which has probably had greater impact on state treasuries than did that awarded in Ex parte Young. In Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed. 2d 534 (1971), Arizona and Pennsylvania welfare officials were prohibited from denying welfare benefits to otherwise qualified recipients who were aliens. In Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), New York City welfare officials were enjoined from following New York State procedures which authorized the termination of benefits paid to welfare recipients without prior hearing. But the fiscal consequences to state treasuries in these eases were the necessary result of compliance with decrees which by their terms were prospective in nature. State officials, in order to shape their official conduct to the mandate of the Court’s decrees, would more likely have to spend money from the state treasury than if they had been left free to pursue their previous course of conduct. Such an ancillary effect on the state treasury is a permissible and often an inevitable consequence of the principle announced in Ex parte Young, supra.” Edelman v. Jordan, supra, 415 U.S. at 667, 94 S.Ct. at 1357 (Footnote omitted).

This language clearly means that the 11th Amendment does not bar injunctive relief against unconstitutional acts of state officers, even though such relief will have an impact on the state treasury.

The Supreme Court commitment to vindicating federal constitutional rights through suits against state officers is further exemplified by the very recent decision of a unanimous Court in allowing suits for damages against state officers, in one of the Kent State cases, Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683 (1974).

Neither Edelman nor Seheuer dealt directly with attorneys’ fees. But if such litigation is within the jurisdiction of the federal courts, then such appurtenances of litigation as costs and attorneys’ fees (where otherwise appropriate) must also be within the federal courts’ jurisdiction where they are “ancillary effects” of suits to restrain state officers.

Aside from Sims v. Amos, supra, the controlling case in relation to our current problem is, I believe, Fairmont Creamery Co. v. Minnesota, 275 U.S. 70, 48 S.Ct. 97, 72 L.Ed. 168 (1927). The Fairmont Creamery case did not involve attorneys’ fees, but in it the Supreme Court awarded costs of litigation squarely against the state of Minnesota. I can perceive no distinction for purposes of the 11th Amendment between the District Court’s power to award costs and its power to award attorneys’ fees.

In Fairmont Creamery, Chief Justice Taft said:

“That the sovereign is not to be taxed with costs in either civil or criminal cases by rule of court without a statute is undoubtedly true . But is the state to be regarded as a sovereign here? This court is not a court created by the State of Minnesota. The case is brought by a writ of error issued under the authority of the United States by virtue of the Constitution of the United States. It is not here by the state’s consent but by virtue of a law, to which it is subject. Though a sovereign, in many respects, the state when a party to litigation in this court loses some of its character as such.

“ . . .A rule of this court as to the awarding and division of costs is, of course, not a statute, but such a rule seems to us to be within the inherent authority of the court in the orderly administration of justice as between all parties litigant, properly within its jurisdiction, except the sovereign government.

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“ . . . We think that the rule construed by long practice justifies us in treating the state just as any other litigant, and in imposing costs upon it as such . . . .” Fairmont Creamery Co. v. Minnesota, 275 U.S. 70, 73-75, 77, 48 S.Ct. 97 (1927).

Attorneys’ fees, where otherwise appropriate are, like costs, a necessary part of an action to vindicate Constitutional rights. They are not comparable to an award of damages or of retroactive benefits.

There is also other precedent for holding that a District Judge has jurisdiction to award attorneys’ fees (where such would normally be allowed) against state officers who plead an 11th Amendment defense.

The Ninth Circuit has recently decided a case holding that an award of attorneys’ fees in a § 1983 suit against state officers is warranted. Brandenburger v. Thompson, 494 F.2d 885 (9th Cir. 1974). See also Natural Resources Defense Council, Inc. v. Environmental Protection Agency, 484 F.2d 1331 (1st Cir. 1973); Utah v. United States, 304 F.2d 23 (10th Cir.), cert. denied 371 U.S. 826, 83 S.Ct. 47, 9 L.Ed.2d 65 (1962); NAACP v. Allen, 340 F.Supp. 703 (M. D.Ala. 1972); La Raza Unida v. Volpe, 57 F.R.D. 94 (N.D.Cal.1972), aff’d, 488 F.2d 559 (9th Cir. 1974).

In another recent case Judge Tuttle, writing for the Fifth Circuit and dealing with the precise issue confronting us, said:

“The only issue of concern in this appeal arises from the fact that the trial court fashioned its decree for attorney’s fees in a manner that caused the defendants to challenge this award as being prohibited by the principle of sovereign immunity and, by analogy, to the eleventh amendment to the United States Constitution. See Hans v. State of Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1889). This contention is a familiar one in cases in which courts have entertained actions against state officials, boards and commissions in equity. See, e. g., Orleans Parish School Board v. Bush, 242 F.2d 156 (5th Cir. 1957) and the many school cases subsequently decided by this court.

“In Sims v. Amos, 336 F.Supp. 924, 340 F.Supp. 691 (M.D.Ala. 1972), aff’d., 409 U.S. 942, 93 S.Ct. 290, 34 L.Ed.2d 215 (1972), the District Court for the Middle District of Alabama dealt with the award of attorney’s fees and expenses incurred in a suit against the Governor, state legislators, the attorney general and the secretary of state of Alabama. The Court expressly held against the ‘Alabama State Legislators, the Governor, the Attorney General and the Secretary of State.’

“In their jurisdictional statement to the Supreme Court, the defendants in Sims stated:

‘the award to the plaintiffs of their attorney’s fees and expenses incurred and in the taxing of these items as costs against the defendants who are elected state officials sued in their official capacity was tantamount to the award of a money judgment against the State of Alabama in direct violation of the doctrine of sovereign immunity.’

The Supreme Court affirmed the judgment of the three-judge district court without opinion. In the California case of La Raza Unida v. Volpe, 57 F.R.D. 94 (N.D.Cal. 1972), the court noted:

‘That federal courts have awarded attorney’s fees to successful litigants against state officers without statutory authority cannot be denied. See, e. g., Sims v. Amos, supra, (Governor of Alabama and Secretary of State); Wyatt v. Stiekney, 344 F.Supp. 373 (M.D.Ala. decided April 13, 1972), (State regulatory agency). See also Cooper v. Allen, supra [467 F.2d 836), (5th Cir. 1972)] (Mayor of Atlanta, Georgia); Brewer v. School Board of Norwalk (sic), supra [456 F.2d 943 (4th Cir. 1972)] (school board); Hammond v. Housing Authority & Urban Renewal Agency of Lane County, 328 F.Supp. 586 (D.Or. 1971), (municipal housing authority). But of course, the eleventh amendment has been read not to apply to local bodies. Lincoln County v. Luning, 133 U.S. 529, 10 S.Ct. 363, 33 L.Ed. 766 (1890).

‘Since we conclude as the court did in Sims that the state may no more immunize an individual from costs incident to an injunction than it may insulate him from the injunction itself, we find that sovereign immunity does not bar an award of attorney’s fees against Chief Engineer Legarra. . . . ’ 57 F.R.D. at 101-102.

“This Court has said that in such a suit as this the award of attorney’s fees is not an award of damages against the State, even though funds for payment of the costs may come from the state appropriations. In Harkless v. Sweeney Independent School District, 427 F.2d 319 (5th Cir. 1970) we said:

‘Section 1983 was designed to provide a comprehensive remedy for the deprivation of federal constitutional and statutory rights. The prayer for back pay is not a claim for damages, but is an integral part of the equitable remedy of injunc-tive reinstatement.’ 427 F.2d at 324.

“Although the trial court had the power to assess attorney’s fees and expenses against the individual defendants 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 costs were to be payable ‘from funds which the Mississippi Legislature, at its 1973 Session, may appropriate for the operation of the Mississippi State Penitentiary,’ and were not to be ‘the personal, or individual, liability of the varied defendants or any of them.’ See also, the following cases which have dealt with this question: La Raza Unida v. Volpe, 57 F. R.D. 94 (N.D.Cal. 1972); Brewer v. School Board of City of Norfolk, Va., 456 F.2d 943 (4th Cir. 1972) cert. den., 406 U.S. 933, 92 S.Ct. 1778, 32 L.Ed.2d 136 (1972); Thompson v. Richland Parish Police Jury, 5 Cir., 478 F.2d 1401 [No. 72-3413, June 13, 1973]; Wyatt v. Stickney, 344 F. Supp. 387 (M.D.Ala. 1972).” Gates v. Collier, 489 F.2d 298, 302-303 (5th Cir. 1973). (Footnotes omitted.)

The issue in this case is a matter of national importance far exceeding the interests of the parties involved. In many instances Congress has developed statutes designed to implement and enforce basic constitutional rights through the use of private suits where plaintiffs act like private attorneys-general. In many areas of constitutional law such as voting rights, prisoner rights, sex and race discrimination cases, the claimants are likely to be indigent and unable to pay attorneys’ fees. For us to fail to follow recent (and old) Supreme Court precedent and the decisions of other Circuits in allowing attorneys’ fees in this and similar cases may seriously impede the vindication of rights guaranteed by the U. S. Constitution.

OTHER CASES IN THIS COURT

In recent months this court has had before different panels four cases involving the identical question discussed above. Jordan v. Gilligan, 500 F.2d 701, 6th Cir.; Milburn v. Huecker, 500 F.2d 1279, 6th Cir., Taylor v. Perini, No. 73-2071; Incarcerated Men of Allen County v. Fair, No. 74-1052.

The first ease to come to decision by a panel of the court was Jordan v. Gilligan, supra. There in a case quite different from our instant case in that equitable entitlement to any attorneys’ fees' from the state was highly dubious, the opinion of the court ruled out the attorneys’ fees, holding them to be barred by the 11th Amendment. A motion for rehearing en banc was defeated 6 to 3 without our court as a whole ever reaching the merits of the matter. After that vote was recorded the bound volume of Supreme Court reports showing that the Supreme Court had squarely affirmed the allowance of attorneys fees in Sims v. Amos appeared.

Thereupon the panel of the court which had the Jordan case granted rehearing, apparently to reconsider its position on the 11th Amendment question. (The previous opinion had relied upon the fact that reported affirmance of Sims v. Amos had not applied to the three-judge court judgment in 340 F. Supp. 691 which contained the order of attorneys’ fees.) While such reconsideration was in progress another unanimous panel of the court (of which the writer was a member) decided and sent to the printer an opinion in Milburn v. Huecker, 500 F.2d 1279 (6th Cir. 1974), which remanded the attorneys’ fee question in that case with the clear implication that the District Judge was free to award such if he found appropriate equitable grounds for so doing — even if the fees would actually have to be paid by the state concerned. The Jordan panel, however, decided to reiterate its previous holding by arguing that even if Sims v. Amos was in point and allowed attorneys’ fees against an 11th Amendment defense, this court had the power to disregard the Supreme Court’s af-firmance of Sims because as noted above the affirmance was summary and not accompanied by formal opinion. Processing of the two cases in the hands of the printers gave the Jordan opinion an earlier date of publication than the Mil-burn opinion. Since the two opinions reach opposite results, it is this case which will determine the ultimate position of our circuit.

For the reasons spelled out above I believe the Sims decision by the United States Supreme Court is controlling in this case and the Jordan opinion upon which my colleagues rely is in error in holding that this court has the authority to disregard it.

Additionally, I see no need for remand of this case. The District Judge has made clear in his findings that Defendant Perini was acting at all times in good faith and in the course of his official duties. I do believe that (following the formula employed in Gates v. Collier, supra) the judgment should be amended to run only against Defendant Perini as Superintendent of the Marion Correctional Institution and should require him to pay the sum assessed as an attorney fee out of any sums appropriated for the operation of that institution.