Newman v. State of Ala.

• Citation: 522 F.2d 71
• Decision Date: 29 October 1975
• Docket Number: No. 73-2033,73-2033
• Parties: N. H. NEWMAN et al., Respondents-Appellees, v. STATE OF ALABAMA and Bill Baxley, Attorney General for the State of Alabama, Petitioners-Appellants, United States of America, Amicus Curiae.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 71

522 F.2d 71

N. H. NEWMAN et al., Respondents-Appellees, v. STATE OF ALABAMA and Bill Baxley, Attorney General for the

State of Alabama, Petitioners-Appellants,

United States of America, Amicus Curiae.

No. 73-2033.

United States Court of Appeals, Fifth Circuit.

Oct. 29, 1975.

William J. Baxley, Atty. Gen., Montgomery, Ala., Herbert H. Henry, Asst. Atty. Gen., Birmingham, Ala., George Beck, Thomas Sorrels, Asst. Attys. Gen., Montgomery, Ala., for petitioners-appellants.

Joseph D. Phelps, Philip H. Butler, Montgomery, Ala., for respondents-appellees.

Michael S. Loftman, Civil Rights, Dept. of Justice, Washington, D. C., Ira DeMent, U. S. Atty., Montgomery, Ala., J. Stanley Pottinger, Asst. Atty. Gen., Patricia G. Littlefield, Atty., Civ. Div., Dept. of Justice, Walter W. Barnett, Atty., Dept. of Justice, Civ. Rights Div., Washington, D. C., amicus curiae.

Appeal from the United States District Court for the Middle District of Alabama.

Before BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges.

PER CURIAM:

The judgment of the district court as it relates to the award of attorneys' fees, ^* Newman v. State of Alabama, M.D.Ala., 1972, 349 F.Supp. 278, is vacated and the cause is remanded for reconsideration consistent with the supervening decisions of Alyeska Pipeline Service Co. v. The Wilderness Society, 1975, --- U.S. ---, 95 S.Ct. 1612, 44 L.Ed.2d 141, and Edelman v. Jordan, 1974, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662.

Vacated and remanded with direction.

GEWIN, Circuit Judge, with whom BROWN, Chief Judge, and WISDOM, THORNBERRY and GOLDBERG, Circuit Judges, join, dissenting:

The cryptic and hollow remand order of the court en banc, directing the district court to reconsider the matter of awarding attorneys' fees and expenses, ¹ is unacceptable to me. Therefore, I respectfully dissent. ²

After a full trial in the district court, an opinion in favor of plaintiffs was rendered on October 4, 1972. Newman v. Alabama, 349 F.Supp. 278 (M.D.Ala.1972). Upon appeal, the case was orally argued before a panel of this court, and in a decision on the merits, we sustained the injunctive relief ordered by the district court. Newman v. Alabama, 503 F.2d 1320 (5th Cir. 1974). We reserved decision on the issue of attorneys' fees for consideration en banc. ³ That phase of the case was rebriefed by the parties, and amicus briefs were filed. The en banc court heard lengthy argument by eminent and experienced counsel; oral argument occurred subsequent to the decision in Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), although prior to the decision in Alyeska Pipeline Service Co. v. The Wilderness Society, --- U.S. --- 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). This court has been fully informed as to the facts and the law of the case. Other courts of appeals have decided the issue. Recently, in an opinion delivered subsequent to Edelman and Alyeska, the Second Circuit has dealt with the problem fully and forthrightly. ⁴ In my view, it is entirely inappropriate for this court to refuse to face the issue and reach a decision. ⁵

This litigation involved a massive challenge to the constitutionality of medical facilities and treatment within the Alabama Penal System (APS). The district court found the medical procedures violative of the inmates' Eighth and Fourteenth Amendment rights and ordered extensive affirmative relief. That court also awarded $12,000 to the prisoners' court-appointed counsel and ordered that he be reimbursed for the $2,483.42 in expenses he incurred in prosecuting this litigation; each sum was to be taxed as costs. Appellants argue on this appeal that the Eleventh Amendment bars the award of attorneys' fees and expenses because the same constitutes an award against the state. ⁶

The issue before us is inexorably bound to the merits of the prisoners' constitutional claims. The Constitution does not require the state to operate prisons, though as a practical matter it must. ⁷ The Constitution does, however, demand that if a citizen is imprisoned, his or her imprisonment must not transgress the interdiction of the Eighth Amendment's cruel and unusual punishment clause, as applied to the states through the Fourteenth Amendment. Moreover, the due process clause places restrictions on the methods utilized by a state in managing a penal system. Citizens engaoled by the strong hand of the state do not lose all constitutional rights at the prison gate. No person can be denied life or liberty without due process of law. The right to be free from cruel and unusual punishment survives a criminal judgment of conviction and subsequent imprisonment.

The constitutional derelictions present in this case would not have been illuminated without the diligent efforts of court-appointed counsel. The district court noted that after the complaint had been filed on behalf of all Alabama prisoners and the defendants categorically denied the plaintiffs' contentions, appointment of counsel to represent the inmates was necessary. 359 F.Supp. at 286. The plaintiffs' attorney played the central role in developing the evidence, and without him the district court would have been incapable of discovering and correcting egregious instances of neglect and malfeasance that violated the constitutional rights of large segments of the prison population.

The first question presented on appeal, and that which concerned the court at oral argument, is whether an award of attorneys' fees is barred by the Eleventh Amendment. It is well established, of course, that the Eleventh Amendment prohibits an award of damages that is in substance against the state. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Ford Motor Co. v. Department of the Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945); Kennecott Copper Corp. v. State Tax Comm'r, 327 U.S. 573, 66 S.Ct. 745, 90 L.Ed. 862 (1946). Since Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), however, it has been equally well settled that federal courts may compel state officials to bring their actions into conformity with constitutional mandates. Such equitable relief often imposes an inevitable and ancillary burden on the state treasury. See, e. g., Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970); Griffin v. School Board, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964). That funds allocated for the operation of a prison system must ultimately bear the cost of official compliance with the Constitution does not therefore render the relief impermissible under the Eleventh Amendment. So long as the expenses are incidental to legitimate equitable relief, payable from funds earmarked for a specific function, rather than damages payable directly to successful plaintiffs, the principles of Ex Parte Young shield the award from constitutional attack.

The Supreme Court refined Eleventh Amendment analysis in Edelman v. Jordan, supra. That case held that while the principles of Ex Parte Young permit prospective injunctive remedies for welfare recipients unlawfully denied benefits, the Eleventh Amendment bars an order to make retroactive payments of past benefits. The opinion did not address the Eleventh Amendment's effect on an award of attorneys' fees, but it specifically recognized that the state must often assume costs that are ancillary and incidental to an order for injunctive relief:

(T)he fiscal consequences to state treasuries in these cases 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.

415 U.S. 668, 94 S.Ct. at 1358, 39 L.Ed.2d at 675.

Attorneys' fees, which represent a cost of achieving compliance with prospective decrees, vindicating recognized constitutional rights, fit comfortably within this category.

Edelman holds only that an order compelling state officers to pay state funds as compensation for past official misconduct runs afoul of the Eleventh Amendment. A federal court lacks jurisdiction to command such relief because it, in effect, constitutes an award of damages against the state. 415 U.S. at 668, 94 S.Ct. at 1358, 39 L.Ed.2d at 676. Attorneys' fees, on the other hand, stand in a completely different posture. Unlike wrongfully denied welfare payments, Edelman v. Jordan, supra, or improperly collected income taxes, Ford Motor Co. v. Department of the Treasury, supra, attorneys' fees are not the Raison d'etre of the lawsuit; rather, they are the necessary concomitant of an appeal to a court of equity for vindication of constitutional rights. The court below did not order reparation to the plaintiff class for past injustices. Attorneys' fees do not constitute the relief prayed for and are therefore distinct from compensation that makes the plaintiff whole for past malfeasance. See Edelman v. Jordan, supra; Rothstein v. Wyman, 467 F.2d 226 (2d Cir. 1972), Cert. denied, 411 U.S. 921, 93 S.Ct. 1552, 36 L.Ed.2d 315 (1973). Moreover, the amount of such an award is generally not large enough to seriously disrupt the state treasury. In essence, then, attorneys' fees are merely an ancillary and incidental consequence of an effort to rectify a system grossly in need of reform. ⁸

Here Alabama need make no remuneration for past derelictions. Virtually all lawsuits, even declaratory judgment actions, are based in part on past conduct. The jurisdictional indispensability of a ripe "case...