Corpus v. Estelle

• Decision Date: 26 October 1979
• Docket Number: No. 78-2194,78-2194
• Citation: 605 F.2d 175
• Parties: Julius CORPUS, Plaintiff-Appellee, v. W. J. ESTELLE, Jr., Director, Texas Dept. of Corrections, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 175

605 F.2d 175

Julius CORPUS, Plaintiff-Appellee, v. W. J. ESTELLE, Jr., Director, Texas Dept. of Corrections Defendant-Appellant.

No. 78-2194.

United States Court of Appeals Fifth Circuit.

Oct. 26, 1979.

Brian E. Berwick, Asst. Atty. Gen., Austin, Tex., for defendant-appellant.

William Bennett Turner, San Francisco, Cal., Mrs. Frances T. Cruz, Washington, D. C., Jack Greenberg, James M. Nabrit, III, Joel Berger, New York City, for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before WISDOM, HILL and VANCE, Circuit Judges.

WISDOM, Circuit Judge:

The complaint in this action was filed in April 1968. For the third time this case has surfaced in this Court. Ronald Novak filed the first case, pro se, as a § 1983 class action on behalf of all those in custody of the Texas Department of Corrections (TDC). He sought, among other things, declaratory and injunctive relief against a TDC practice of prohibiting legal assistance by one inmate to another. The district court found against the plaintiff class. Novak v. Beto, S.D.Tex.1970, 320 F.Supp. 1206. We reversed and held that the TDC could not enforce the prohibition until it provided an adequate legal assistance program for prisoners. Novak v. Beto, 5 Cir. 1971, 453 F.2d 661.

In spite of our decision, the TDC continued to enforce the prohibition. In 1972 the plaintiffs renewed proceedings to enforce this Court's decision. The TDC vigorously resisted. It adopted a formal rule permitting prisoners to assist each other, but only in § 1983 cases; it made assistance in any other matter a violation of discipline. The district court enjoined the TDC "from maintaining or enforcing any rule or practice prohibiting prisoners . . . from giving or receiving legal assistance with regard to civil rights matters". It also issued a declaratory judgment stating that the "TDC rule or practice of prohibiting prisoners from giving or receiving legal assistance with regard to habeas corpus . . . (and) general civil legal matters is invalid". Corpus v. Estelle, S.D.Tex.1975, 409 F.Supp. 1090, 1097. The TDC appealed. We affirmed in Corpus v. Estelle, 5 Cir. 1977, 551 F.2d 68.

The plaintiffs then sought fee awards under the Civil Rights Attorney's Fees Awards Act of 1976 (Act). ¹ The Act had taken effect two months before the appellate argument on the merits in Corpus v. Estelle. The district court awarded a total of $38,845. Still vigorously fighting a rear guard action, the Attorney General of Texas sought a stay pending appeal, arguing that the Eleventh Amendment barred the award. When Hutto v. Finney, 1978, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522, foreclosed the TDC's argument, the district court denied the stay. TDC constructed a new argument, and a panel of this Court granted a stay. We affirm the award, but remand for the district court to determine and award a reasonable fee for the appeal.

I.

This appeal concerns a practice repeatedly found constitutional, carving out for reexamination a proposition embedded in the logic of many earlier decisions. In Hutto v. Finney, 1978, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522, the Supreme Court held that the Eleventh Amendment did not bar awards against states under the Act, including awards in cases pending at the time the Act was passed. This Court has granted such awards as a matter of course, even when the only question on appeal at the time of the passage of the Act was one of attorney's fees. Rainey v. Jackson State College, 5 Cir. 1977, 551 F.2d 672, 675-76. See also Dillon v. AFBIC Development Corp., 5 Cir. 1979, 597 F.2d 556, 564; Crowe v. Lucas, 5 Cir. 1979, 595 F.2d 985, 993-94; Universal Amusement Co., Inc. v. Vance, 5 Cir. en banc 1978, 587 F.2d 159, 172; Gore v. Turner, 5 Cir. 1977, 563 F.2d 159, 163-64; Miller v. Carson, 5 Cir. 1977, 563 F.2d 741, 754-56; Gates v. Collier, 5 Cir. 1977, 559 F.2d 241; Hodge v. Seiler, 5 Cir. 1977, 558 F.2d 284, 286. ²

No case, however, has raised as its sole contention that Congress lacked authority under Section 5 of the Fourteenth Amendment to provide awards under the Act, in cases pending on the date of enactment, for services rendered before that date. In support of this contention, the Attorney General points to Chief Justice Marshall's language, interpreting the necessary and proper clause, in McCulloch v. Maryland, 1819, 17 U.S. (4 Wheat.) 316, 4 L.Ed. 579. This is the language that the Court borrowed in Katzenbach v. Morgan, 1966, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828, with particular reference to Section 5 of the Fourteenth Amendment.

Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional.

17 U.S. (4 Wheat.) at 421. The Attorney General then assumes a strict standard for evaluating whether a given means is plainly adapted to a constitutional end. ³ Finally, positing the Prospective encouragement of civil rights suits as the sole end of the Act, ⁴ the Attorney General concludes that awarding fees in cases pending at the time of enactment is not a means plainly adapted to that end and is therefore unconstitutional.

II.

The Attorney General's argument rests on a misinterpretation of Hutto v. Finney and an inverted view of Section 5.

Hutto involved a challenge by the State of Arkansas to a finding that conditions in the Arkansas penal system constituted cruel and unusual punishment, and to an award of attorney's fees. The judgment included (1) an award by the district court, and (2) a fee added by the court of appeals to cover legal services on appeal. The trial court award was supported by a finding of bad faith; ⁵ the appellate fee by reliance on the Civil Rights Attorney's Fees Awards Act of 1976. Finney v. Hutto, 8 Cir. 1977, 548 F.2d 740, 742. In adding the appellate fee, the Eighth Circuit was careful to note that the Act "was signed into law . . . (at a time when this) case (was) pending resolution on appeal". Id.

The Supreme Court affirmed the awards. In reaching the conclusion that the court of appeals award was constitutional, Justice Stevens discussed the interrelation between the Eleventh Amendment and Section 5 of the Fourteenth Amendment.

As this Court made clear in Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614, Congress has plenary power to set aside the States' immunity from retroactive relief in order to enforce the Fourteenth Amendment. When it passed the Act, Congress undoubtedly intended to exercise that power and to authorize fee awards payable by the States when their officials are sued in their official capacities. The Act itself could not be broader. It applies to "any" action brought to enforce certain civil rights laws. It contained no hint of an exception for States defending injunction actions; indeed the Act primarily applies to laws passed specifically to restrain state actions. See, e. g., 42 U.S.C. § 1983.

437 U.S. at 693-94, 98 S.Ct. at 2575.

The Court supported its conclusion by resort to the legislative history of the Act, ⁶ then discussed cases pending when the Act was passed:

The Attorney General also contends that the fee awards should not apply to cases, such as this one, that were pending when the Act was passed in 1976. But the legislative history of the Act, as well as this Court's general practice, defeats this argument. The House Report declared: "In accordance with applicable decisions of the Supreme Court, the bill is intended to apply to all cases pending on the date of enactment. . . . " H.R.Rep. No. 94-1558, p. 4 n. 6 (1976).

437 U.S. at 695 n. 23, 98 S.Ct. at 2576 (citation omitted). ⁷

The logic of Hutto resolves this case. An inextricable part of the holding that Congress successfully overcame the states' sovereign immunity by passing the Act under its Section 5 power is the determination that Congress had the power to exercise. We cannot parse the Court's reasoning any other way. The Attorney General has not changed the problem the Hutto Court addressed by focusing not on the Eleventh Amendment but on Section 5. After Hutto, he is merely asking us to make the latent patent. ⁸

Were Hutto less informative on the question of Section 5 power we would reach the same result. The Attorney General's argument that awarding fees in pending cases is not a means Closely tailored to a constitutional end, hence is unconstitutional is based on a misunderstanding of Section 5 jurisprudence.

As long ago as 1880, in Ex parte Virginia, 100 U.S. 339, 25 L.Ed. 676, the Supreme Court said that were it not for Section 5, there might be room for argument that the Fourteenth Amendment only declared a moral duty of the states. Section 5, however, embodying a principle of federal sovereignty, empowered Congress to enforce the prohibitions of the Fourteenth Amendment against the states. In Katzenbach v. Morgan, 1966, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828, the Court expressly equated the function Section 5 performed for the Fourteenth Amendment with that performed by the necessary and proper clause for the enumerated powers of Article 1. 384 U.S. at 650 & n. 9, 86 S.Ct. 1717. The equation was carried forward by Fitzpatrick v. Bitzer, 1976, 427 U.S. 445, 455, 96 S.Ct. 2666, 2671, 49 L.Ed.2d 614, 621.

Section 5 is the source of broad legislative authority to define and carry out the provisions of the amendment, an authority "plenary within the terms of the constitutional grant". Fitzpatrick v. Bitzer, 427 U.S. at 456, 96 S.Ct. at 2671. And in Katzenbach, the Court welcomed congressional assistance, based on Section 5, in shaping the contours of the sometimes elusive concepts embodied in the Fourteenth Amendment. In doing so, the Court made it plain that the judiciary should not lightly rebuff such congressional attempts. 384 U.S. at 653...