519 F.2d 559 (2nd Cir. 1975), 740, Fitzpatrick v. Bitzer

Docket Nº:740, Docket 74-2581.
Citation:519 F.2d 559
Party Name:Garland M. FITZPATRICK, et al., Plaintiffs, Donald Matthews and Mortimer Covert, Plaintiffs-Appellants, v. Frederick BITZER, Chairman of the State Employees' Retirement Commission, etal., Defendants-Appellees.
Case Date:June 02, 1975
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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519 F.2d 559 (2nd Cir. 1975)

Garland M. FITZPATRICK, et al., Plaintiffs,

Donald Matthews and Mortimer Covert, Plaintiffs-Appellants,

v.

Frederick BITZER, Chairman of the State Employees'

Retirement Commission, etal., Defendants-Appellees.

No. 740, Docket 74-2581.

United States Court of Appeals, Second Circuit

June 2, 1975

Argued March 10, 1975.

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Paul W. Orth, Hartford, Conn. (Austin Carey, Jr., Hoppin, Carey & Powell, Hartford, Conn., of counsel), for appellants.

Sidney D. Giber, Asst. Atty. Gen., Hartford, Conn. (Carl R. Ajello, Atty. Gen. of Conn., F. Michael Ahern, Asst. Atty. Gen., Hartford, Conn., of counsel), for appellees.

William A. Carey, Gen. Counsel, Washington, D. C. (Joseph T. Eddins, Associate

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Gen. Counsel, Beatrice Rosenberg, Charles L. Reischel, Susan J. Johnson, Attys. E. E. O. C., Washington, D. C., of counsel), for United States Equal Employment Opportunity Commission as amicus curiae.

Before MOORE, MANSFIELD and GURFEIN, Circuit Judges.

MANSFIELD, Circuit Judge:

The principal question on this appeal is whether, in a suit against a state by its employees attacking its retirement plan as discriminating on the basis of sex in violation of Title VII of the Civil Rights Act of 1964, the Eleventh Amendment bars a federal court from granting, in addition to injunctive relief, monetary damages and attorneys' fees. We hold that the state is shielded by the Eleventh Amendment against an award of damages but not against an award of attorneys' fees that is ancillary to the permissible grant of prospective injunctive relief.

This litigation was brought by the named plaintiffs as a class action on behalf of all present and retired male employees of the State of Connecticut who were members of the State Employees' Retirement System, a retirement benefit plan established by the State Employees Retirement Act, Conn.Gen.Stat. §§ 5-152 to 5-192 ("Retirement Act" herein). Asserting equal protection claims under the Fourteenth Amendment and statutory violations under 42 U.S.C. § 1983, plaintiffs sought declaratory and injunctive relief against the State Treasurer, State Comptroller, and the Chairman of the State Employees' Retirement Commission, to restrain continued enforcement by those officials of sexually discriminatory provisions of the Retirement Act. Plaintiffs objected to §§ 5-162, 5-163 and 5-166, which grant to women employees having 25 or more years of state service the right to retire with pension rights five (5) years earlier than similarly situated men, and further provide rate differentials favoring female over male employees who retire with less than 25 years of state service.

A three-judge court was convened to hear the case, 28 U.S.C. §§ 2281, 2284, but on October 15, 1973, plaintiffs amended their complaint to add a count alleging that the Retirement Act violated Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq. Title VII, which originally did not apply to state governments, had been amended by Public Law No. 92-261,86 Stat. 103, effective March 24, 1972, to bring the states within its purview. 1 After the amendment of the complaint, the case was remanded to Chief Judge Clarie, sitting as a single district judge, for resolution of the claims under federal statutory law, see 28 U.S.C. § 2281. 2

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After a hearing on the merits, Chief Judge Clarie, in a thorough opinion, found that retirement benefits fall within the language "compensation, terms, conditions, or privileges of employment" as used in Title VII and that such benefits are barred by Title VII from being made the subject of sex discrimination. 42 U.S.C. § 2000e-2(a)(1). He further determined that the Retirement Act violates Title VII insofar as it discriminates in favor of women over men in the number of years of service eligibility required for retirement and in the computation of retirement benefits. See 390 F.Supp. 278 (D.Conn.1974). He rejected defendants' contention that this suit was in reality one against the State of Connecticut and as such barred from federal court by the Eleventh Amendment to the Constitution, since the defendants here were sued individually and the state's immunity is not shared by state officials who act unconstitutionally or contrary to federal law. Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Scheuer v. Rhodes, 416 U.S. 232, 237, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Defendants did not appeal from the court's determination that the Retirement Act violates Title VII, nor from the injunction against future payments from the Retirement Fund or from other state moneys under the Retirement System in a manner which would discriminate against men on the basis of sex.

The section of Title VII prescribing remedies which a court may employ against violation of that title states that, in addition to enjoining an unlawful employment practice, the court may

"order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay . . . or any other equitable relief as the court deems appropriate." 42 U.S.C. § 2000e-5(g).

In addition to injunctive relief, plaintiffs also sought in their complaint an order requiring defendants to recalculate for all living retired male employees the benefits to which similarly situated female employees would have been entitled, and to pay out to the retired male employees the difference between the recalculated benefits and the benefits actually received. 3 Costs and reasonable attorneys' fees were also demanded pursuant to 42 U.S.C. § 2000e-5(k). 4 Chief Judge Clarie, however, determined that under the Supreme Court's recent decision in Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), a federal court is barred by the Eleventh Amendment, absent the state's waiver or consent, from awarding a retroactive money judgment that would be satisfied

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by a "payment of funds from the state treasury." 415 U.S. at 677, 94 S.Ct. at 1362.

On this appeal plaintiffs argue that there are several critical factors present in this case that did not confront the Edelman court. While we agree that Edelman v. Jordan is not in all respects controlling in this case, we believe Judge Clarie correctly resolved the Eleventh Amendment issue with respect to the back pay claim, and affirm. We reverse his holding, however, insofar as it barred the attorneys' fee claim.

DISCUSSION

The Eleventh Amendment to the Constitution states:

"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."

Adopted in 1798, the Amendment was enacted in direct response to widespread dissatisfaction with the Supreme Court's 1793 decision in Chisholm v. Georgia, 2 Dall. 419, 2 U.S. 419, 1 L.Ed. 440 which held that under Article III, § 2, 5 federal jurisdiction extended to a suit against the State of Georgia brought by South Carolina citizens to collect a debt owed by that state to an estate of which plaintiffs were executors. 6 Since the Amendment was intended to reverse the Chisholm decision, 7 it has been interpreted not literally but according to its purpose of restoring to Article III the "fundamental rule of jurisprudence" that "a state may not be sued without its consent," Ex Parte New York, 256 U.S. 490, 497, 41 S.Ct. 588, 589, 65 L.Ed. 1057 (1921). For instance, in fulfillment of the overall objective of protecting the sovereign immunity of the states the Court has decided that a suit for damages against a state by a citizen of the same state, though not specifically prohibited by the Amendment's language, is barred. Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). See also, e. g., Principality of Monaco v. Mississippi, 292 U.S. 313, 54 S.Ct. 745, 78 L.Ed. 1282 (1934) (suits by foreign countries as well as foreign citizens barred); Ex Parte New York, supra (state immune from private actions in admiralty as well as "suits in law or equity").

Likewise following this principle, the Supreme Court has long held that even though the state is not a named party the shield provided by the Amendment may in an appropriate case be invoked by the defendants, see, e. g., In re Ayers, 123 U.S. 443, 8 S.Ct. 164, 31 L.Ed. 216 (1887); Louisiana v. Jumel, 107 U.S. 711, 2 S.Ct. 128, 27 L.Ed. 448 (1882). Looking to substance rather than to form, the Court decided that immunity should not depend on "the mere names of the titular parties but . . . the essential nature and effect of the proceeding, as it appears from the entire record." Ex Parte New York, 256 U.S. 490, 500, 41 S.Ct. 588, 590, 65 L.Ed. 1057 (1921); see Hagood v. Southern, 117 U.S. 52, 67, 6 S.Ct. 608, 29 L.Ed. 805 (1886); Smith v.

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Reeves, 178 U.S. 436, 438-40, 20 S.Ct. 919, 44 L.Ed. 1140 (1900). "(W)hen the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest . . .," Ford Motor Co. v. Department of the Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945), and the Eleventh Amendment bars a private suit "seeking to impose a liability which must be paid from public funds in the state treasury . . .," Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 1356, 39 L.Ed.2d 662 (1974); see Kennecott Copper Corp. v. State Tax Comm'n, 327 U.S. 573, 66 S.Ct. 745, 90 L.Ed. 862 (1946); Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 64 S.Ct. 873, 88 L.Ed. 1121 (1944).

On the other side of the coin, the Eleventh Amendment does not bar a suit to enjoin enforcement by a state officer of an unconstitutional state statute. Ex Parte...

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