Morrow v. Dillard

• Decision Date: 29 September 1978
• Docket Number: No. 76-2882,76-2882
• Citation: 580 F.2d 1284
• Parties: 18 Fair Empl.Prac.Cas. 119, 18 Empl. Prac. Dec. P 8645 Willie L. MORROW and Jerome Mangum, Individually and on behalf of all others similarly situated, Plaintiffs-Appellants Cross-Appellees, v. W. O. DILLARD, Commissioner of Public Safety of Mississippi, et al., Defendants-Appellees Cross-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1284

580 F.2d 1284

18 Fair Empl.Prac.Cas. 119, 18 Empl. Prac.

Dec. P 8645

Willie L. MORROW and Jerome Mangum, Individually and on behalf of all others similarly situated Plaintiffs-Appellants Cross-Appellees, v. W. O. DILLARD, Commissioner of Public Safety of Mississippi et al., Defendants-Appellees Cross-Appellants.

No. 76-2882.

United States Court of Appeals Fifth Circuit.

Sept. 29, 1978.

Frank R. Parker, Lawyers' Committee for Civil Rights Under Law, Isaiah Madison, James M. Abram, Jackson, Miss., for plaintiffs-appellants cross-appellees.

A. F. Summer, Atty. Gen., William A. Allain, Asst. Atty. Gen., Peter M. Stockett, Jr., Sp. Asst. Atty. Gen., Jackson, Miss., for defendants-appellees cross-appellants.

Appeals from the United States District Court for the Southern District of Mississippi.

Before COLEMAN, SIMPSON and TJOFLAT, Circuit Judges.

SIMPSON, Circuit Judge:

For the third time this Court is confronted with a civil rights class action challenging the racially discriminatory hiring policies of the Mississippi Highway Safety Patrol ("Patrol") and the Mississippi Department of Public Safety ("Department"). There are three questions presented on this appeal: (1) Whether the District Court, acting pursuant to the mandate of a prior En banc decision of this Court, abused its discretion or imposed an unconstitutional hiring preference by ordering that the Patrol and Department, when hiring future employees or officers, temporarily be required to offer appointment first to every black applicant who meets the minimal qualifications determined to be valid by the District Court; (2) Whether the plaintiffs, as prevailing parties, are entitled to recover reasonable attorney's fees under the Civil Rights Attorney's Fee Awards Act of 1976 from state officers irrespective of the Eleventh Amendment to the United States Constitution; and (3) Whether the doctrine of "law of the case" precludes our consideration of either or both these issues?

The facts of this case are reported in two prior opinions, Morrow v. Crisler, 479 F.2d 960 (5th Cir. 1973), Aff'd in part, rev'd and remanded in part, 491 F.2d 1053 (5th Cir.), (en banc), Cert. denied, 419 U.S. 895, 95 S.Ct. 173, 42 L.Ed.2d 139 (1974). Nevertheless, this appeal requires consideration of the District Court's post-remand opinion, Morrow v. Dillard, 412 F.Supp. 494 (S.D.Miss.1976), as well as those controlling facts set forth in our prior opinions. For the sake of brevity, however, we will briefly set the stage, identify the protagonists, and delineate their respective contentions, leaving a more detailed examination of the facts to our substantive discussion below.

I. STATEMENT OF FACTS

Appellants, plaintiffs in the action below, are two blacks who had unsuccessfully sought employment applications for positions with the Patrol. They instituted a class action against the Governor of the State of Mississippi, the Commissioner of Public Safety, the Chief of the Mississippi Highway Patrol, and the Personnel Officer of the Department of Public Safety. The class representatives alleged ¹ that the racially discriminatory employment practices of the defendants violated their rights and the rights of the plaintiff class, consisting of all present and future black applicants and employees, as secured by 42 U.S.C. §§ 1981 ² and 1983, ³ Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, ⁴ and the Fourteenth Amendment to the United States Constitution. The District Court held ⁵ that the statistical evidence adduced by plaintiffs revealed racially discriminatory hiring policies, constituting a pattern and practice of racial discrimination, albeit unintentional, in violation of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. §§ 1981 and 1983. Morrow v. Crisler, 4 Empl.Prac.Dec. (CCH) P 7563, at 5242 (S.D.Miss.1971); Memorandum Opinion, (R. 451-52). Plaintiffs had requested that as a remedy defendants be required to increase the number of black officers on the Patrol by minority preference or racial quota. Although denying this affirmative hiring relief, the District Court did enter a declaratory and injunctive decree. In addition to declaring the right of the plaintiffs and plaintiff class to be treated equally and without racial discrimination, the court enjoined the defendants from engaging in specified acts ⁶ and required the defendants to conduct an affirmative recruiting program oriented toward the black population. ⁷

All taxable costs were taxed against defendants. Without furnishing any explicit reasons, the District Court also ordered defendants to pay plaintiffs' attorney's fees.

In the first appeal presented to this Court, the original panel held, per Judge Roney, that "(t)he evidence presented in this case amply supports the District Court's conclusion that the policies and practices of the defendants constitute a practice and pattern of racial discrimination in violation of the Fourteenth Amendment to the United States Constitution and that plaintiffs are entitled to injunctive relief." Morrow v. Crisler, 479 F.2d 960, 962 (5th Cir. 1973). With regard to the affirmative hiring relief sought by plaintiffs, the Court held that the District Court had not abused its discretion in fashioning the equitable relief it decreed. Although the Court noted that time might prove it wrong, it found the relief ordered was not insufficient to achieve a nondiscriminatory system and eliminate the effects of past discrimination. 479 F.2d at 964.

On rehearing En banc, this Court said that "(t)here being no question that the Highway Patrol has historically engaged in unconstitutional discrimination in the employment of patrolmen, the only question that brought this case En banc is whether the District Court ordered sufficient affirmative relief to eradicate the State's unconstitutional employment practices and their effects." Morrow v. Crisler, 491 F.2d 1053, 1055 (5th Cir.), Cert. denied, 419 U.S. 895, 95 S.Ct. 173, 42 L.Ed.2d 139 (1974). The En banc Court held that the relief ordered by the District Court was insufficient and remanded the case to the District Court to order some "form of affirmative hiring relief until the Patrol is effectively integrated." 491 F.2d at 1055-56. With regard to the issue of attorney's fees, the En banc Court said that the "District Court shall reconsider the award of the Amount of attorney's fees, and shall award such fees as may be appropriate for this appeal and further proceedings." Id. at 1057 (emphasis added).

On remand, the District Court decreed, insofar as relevant here: (1) that the Patrol and Department temporarily be required to offer appointment or employment first to every black applicant who meets the minimal qualifications determined to be valid by the District Court; and (2) that the plaintiffs were not entitled to attorney's fees nor taxable court costs. Morrow v. Dillard, 412 F.Supp. 494, 502, 507 (S.D.Miss.1976).

Appellants contend that the District Court erred in denying their attorney's fees and taxable court costs. Appellees, Cross-Appellants assert that the preferential hiring treatment ordered for minority applicants by the District Court is violative of the Fourteenth Amendment to the United States Constitution. Appellants additionally maintain that these issues have been decided, in varying degrees, by prior appeals in this Court, thereby precluding reconsideration of the attorney's fees issue by the District Court and the constitutionality of the affirmative hiring relief by this Court. For this reason, it is necessary to consider the doctrine of "law of the case" and determine its applicability, if any, to the case Sub judice.

II. THE DOCTRINE OF "LAW OF THE CASE"

The doctrine of "law of the case" is a rule of practice under which a rule of law enunciated by a federal court "not only establishes a precedent for subsequent cases under the doctrine of stare decisis, but (also) establishes the law which other courts owing obedience to it Must, and which it itself will, normally, apply to the same issues in subsequent proceedings in the same case." 1B Moore's Federal Practice P 0.404(1) (2d ed. 1974) (footnotes omitted, emphasis in original). The doctrine is "based upon sound policy that when an issue is once litigated and decided, that should be the end of the matter." United States v. United States Smelting Refining & Mining Co., 339 U.S. 186, 198, 70 S.Ct. 537, 544, 94 L.Ed. 750 (1950); Fontainebleau Hotel Corp. v. Crossman, 286 F.2d 926, 928 (5th Cir. 1961).

The leading and controlling Fifth Circuit case on the doctrine is White v. Murtha, 377 F.2d 428 (5th Cir. 1967), in which the Court said:

The "law of the case" rule is based on the salutary and sound public policy that litigation should come to an end. It is predicated on the premise that "there would be no end to a suit if every obstinate litigant could, by repeated appeals, compel a court to listen to criticisms on their opinions or speculate of chances from changes in its membership," and that it would be impossible for an appellate court "to perform its duties satisfactorily and efficiently" and expeditiously "if a question, once considered and decided by it were to be litigated anew in the same case upon any and every subsequent appeal" thereof.

While the "law of the case" doctrine is not an inexorable command, a decision of a legal issue or issues by an appellate court establishes the "law of the case" and must be followed in all subsequent proceedings in the same case in the trial court or on a latter appeal in the appellate court, Unless (1) the evidence on a subsequent trial was substantially different, (2) controlling authority has since made a contrary decision of the law applicable to such issues, or (3) the decision was clearly erroneous and would work manifest injustice.

377 F.2d at 431-32 (emphasis added, footnotes omitted). See also Schwartz v. NMS Industries, Inc., 575 F.2d 553, 554-55 (...