Class v. Norton

• Decision Date: 10 October 1974
• Docket Number: No. 138,D,138
• Citation: 505 F.2d 123
• Parties: Elena CLASS et al., Plaintiffs-Appellees, v. Nicholas NORTON et al., Defendants-Appellants. ocket 74-1702.
• Court: U.S. Court of Appeals — Second Circuit

Page 123

505 F.2d 123

Elena CLASS et al., Plaintiffs-Appellees, v. Nicholas NORTON et al., Defendants-Appellants.

No. 138, Docket 74-1702.

United States Court of Appeals, Second Circuit.

Argued Sept. 9, 1974.

Decided Oct. 10, 1974.

Edmund C. Walsh, Asst. Atty. Gen. (Robert K. Killian, Atty. Gen., State of Conn., Hartford, Conn.), for defendants-appellants.

James C. Sturdevant, Tolland-Windham Legal Assistance, Inc., Rockville, Conn., Marilyn Katz, Fairfield County Legal Services, Inc., Bridgeport, Conn., for plaintiffs-appellees.

Armand Derfner, Charleston, S.C. (Epstein & McClain, Charleston, S.C.), J. Harold Flannery, Lawyers' Committee for Civil Rights Under Law, Washington, D.C., and Martha G. Bannerman, New York City, on the brief for Lawyers' Committee for Civil Rights Under Law, as amicus curiae.

Before SMITH, TIMBERS and GURFEIN, ^* Circuit Judges.

J. JOSEPH SMITH, Circuit Judge:

Nicholas Norton, Commissioner of Welfare for Connecticut, appeals from the ruling on a motion for contempt rendered by then Chief Judge M. Joseph Blumenfeld of the District of Connecticut on March 22, 1974. , 376 F.Supp. 496. The court declined to hold appellant in contempt for his alleged failure to comply with orders entered in 1972 calling for timely processing of applications for welfare assistance under the state program of Aid to Families with Dependent Children (AFDC). 42 U.S.C. 601 et seq.; 45 C.F.R. 206.10. The court did find significant non-compliance with its prior orders, however, and accordingly: reaffirmed its earlier relief; required that the appellant undertake specified additional measures to ensure compliance with the orders in the future; and assessed a liability of $1,000 against the appellant, in both his individual and official capacities, to cover the appellees' attorneys' fees and costs in bringing the contempt charges. With the exception of the assessment of individual liability, we affirm.

In December, 1971, the appellees, AFDC applicants and recipients, brought a class action against the Connecticut State Welfare Commissioner to compel compliance with federal AFDC regulations requiring a determination of applicant eligibility for assistance within 30 days of making application. Judge Blumenfeld's two orders granting the plaintiffs relief basically required: processing of applications within the 30-day limit; providing assistance to all applicants whose eligibility is not determined within this period; making retroactive payments to eligible persons dating from the date of their application; and issuing bimonthly reports on the number of applications not timely processed. The defendant Commissioner did not appeal from this order.

In January, 1974, the appellees initiated the contempt proceeding presently under review, alleging that the appellant had failed to comply satisfactorily with the terms of the orders. Finding 'substantial and widespread' non-compliance, 376 F.Supp. at 498, the court eschewed the requested contempt sanctions in favor of a detailed implementation plan designed to eliminate possible sources of continued non-compliance, id. at 501-502. The court accompanied these prophylactic directives, moreover, with a reiteration of its earlier orders. Finally, commending appellees' counsel for their persistence 'in the face of unjustified non-compliance with this Court's prior orders,' id. at 502, Judge Blumenfeld awarded $1,000 for counsels' fees and costs to the movants; liability for this amount was found against the Commissioner in his official and individual capacities.

The appellant does not take issue with the prospective relief granted by the court. He does question the balidity of the $1,000 award against him as well as the court's reaffirmation of its 1972 order to pay retroactive benefits (to date of application) to applicants determined eligible for assistance between the dates of plaintiffs' filing the initial claim and the court's rendering judgment on it.

I. RETROACTIVE PAYMENTS

The appellant seizes upon the recently decided case of Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), as a basis for over-turning Judge Blumenfeld's ruling with regard to retroactive payments. In Edelman, the Supreme Court held that a federal court order requiring state officials to pay retroactive benefits ran afoul of the Eleventh Amendment. Although Edelman does figure prominently in the resolution of this appeal, see II infra, we need not consider its force in the context of the retroactive payment order: the validity of the order is settled by the appellant's failure to make a timely appeal of this order when rendered in June, 1972. The doctrine of res judicata, therefore, bars the appellant from securing review of the payment order in this appeal from a proceeding collateral to that one determinative of the merits of the order.

In Federal Trade Commission v. Minneapolis-Honeywell Co., 344 U.S. 206, 211-212, 73 S.Ct. 245, 248, 97 L.Ed. 245 (1952), the Supreme Court elaborated on this principle of finality:

Thus, the mere fact that a judgment previously entered has been reentered or revised in an immaterial way does not toll the time within which review must be sought. Only when the lower court changes matters of substance, or resolves a genuine ambiguity, in a judgment previously rendered should the period within which an appeal must be taken or a petition for certiorari filed begin to run anew. The test is a practical one. The question is whether the lower court, in its second order, has disturbed or revised legal rights and obligations which, by its prior judgment, had been plainly and properly settled with finality.

Having allowed the time for a direct appeal of the 1972 order to expire, the Commissioner may not relitigate the substance of that order merely because the court, in its 1974 ruling, saw fit to reiterate that prior order. The 1974 ruling in no sense altered the earlier payment order. See also Oriel v. Russell, 278 U.S. 358, 363, 49 S.Ct. 173, 73 L.Ed. 419 (1929); National Labor Relations Board v. Local 282, International Brotherhood of Teamsters, 428 F.2d 994, 999 (2d Cir. 1970).

We do not comment on the merits of the appellant's contention were it now properly before this court. See, United States v. Secor, 476 F.2d 766, 770 (2d Cir. 1973). The efficient and fair administration of justice requires that litigation of an issue at some point come to an end. And for the appellant, who has had one opportunity already to contest the payment order, the time to relitigate that issue has necessarily run.

II. THE AWARD OF COSTS AND ATTORNEYS' FEES

The Eleventh Amendment to the Constitution, 'The Judicial power of the United States ahall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens or Subjects of any State, or by Citizens or Subjects of any Foreign State,' relates only to the appellant's liability in his official capacity as an agent of the State of Connecticut. See, Scheuer v. Rhodes, 416 U.S. 232, 237, 94 S.Ct. 1683, 1687, 40 L.Ed.2d 90 (1974); Moor v. County of Alameda, 411 U.S. 693, 700, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973). Considerations peculiar to official liability raised by the Eleventh Amendment, therefore-- or, more particularly by the Eleventh Amendment as recently construed in Edelman v. Jordan, supra-- indicate the appropriateness of analyzing separately the official and personal liabilities imposed by the court on the Commissioner. The two forms of liability must also be distinguished in terms of the degree of recalcitrance warranting their imposition.

A. Liability of Appellant in his Official Capacity

The appellant contends that Edelman's proscription against federal courts ordering state officials to pay retroactive benefits immunizes him from liability to the appellees as an agent of the state. He seeks to characterize the $1,000 assessed against him for attorneys' fees and costs as an award akin to retroactive benefits-- a drain on the state treasury to compensate for alleged official improprieties in the past.

The district court made this award incident to granting prospective relief: a multiple injunctive order to issue certain regulations, withdraw specified departmental directives, and make designated reports. Of critical importance, then, is the discussion in Edelman, supra, 415 U.S. 651 at 667-668, 94 S.Ct. 1347, at 1357-1358, of 'ancillary effects' on the state treasury deriving from compliance with prospective orders of a federal court:

But the fiscal consequences to state treasuries in these cases (Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970)) 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.

We have recently commented on the applicability of this 'ancillary effect' exception to an award of attorneys' fees:

Moreover, it appears to us that the allowance (of attorneys' fees) awarded here, as part of an order granting injunctive relief, has at most the 'ancillary effect on the state treasury,' which Edelman v. Jordan, supra, 415 U.S. 651 at 668, 94 S.Ct. 1347 at 1358, 39 L.Ed.2d 662 characterizes as a 'permissible and often inevitable consequence of the principle announced in Ex parte Young, . . .'

Jordan v. Fusari, 496 F.2d 646, 651 (2d Cir. 1974). Admittedly, that statement was not necessary to our holding in Jordan v. Fusari, because we...