Wade v. Mississippi Co-op. Extension Service

• Decision Date: 14 December 1976
• Docket Number: No. EC 70-29-K.,EC 70-29-K.
• Citation: 424 F. Supp. 1242
• Parties: Charlie F. WADE et al., Plaintiffs, and United States, Plaintiff-Intervenor, v. MISSISSIPPI COOPERATIVE EXTENSION SERVICE et al., Defendants.
• Court: U.S. District Court — Northern District of Mississippi

424 F. Supp. 1242

Charlie F. WADE et al., Plaintiffs, and United States, Plaintiff-Intervenor, v. MISSISSIPPI COOPERATIVE EXTENSION SERVICE et al., Defendants.

No. EC 70-29-K.

United States District Court, N. D. Mississippi, E. D.

December 14, 1976.

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Frank R. Parker, III, Jackson, Miss., for plaintiffs.

Mary Planty, Dept. of Justice, Washington, D.C., for plaintiff-intervenor.

William A. Allain, Jackson, Miss., Pat M. Barrett, Lexington, Miss., Fred B. Smith, Ripley, Miss., for defendants.

MEMORANDUM OPINION

KEADY, Chief Judge.

This is a class action by black citizens of Mississippi pursuant to 42 U.S.C. §§ 1981-83 and 2000d et seq. to end racial segregation and employment discrimination in the operation of the Mississippi Cooperative Extension Service (MCES), a federally-assisted state agency. The United States, through the Department of Justice, has participated as a plaintiff-intervenor under 42 U.S.C. § 2000h-2. The Secretary of Agriculture (Secretary) and the Administrator of the Extension Service (Administrator) of the United States Department of Agriculture (USDA), originally named as parties defendant, were realigned as plaintiffs upon intervention by the Attorney General. On February 15, 1974, we issued our opinion and judgment on the merits, finding impermissible racial discrimination in the operation of MCES and granting extensive injunctive and declaratory relief to the plaintiffs. Wade v. Miss. Cooperative Extension Service, 372 F.Supp. 126 (N.D.Miss.1974). The defendants, who include MCES and its director, Mississippi State University (MSU) and its president, the Board of Trustees of the Institutions of Higher Learning (the Board) and its president and executive secretary, and the members of the Board of Supervisors of Holmes County, Mississippi, prosecuted an appeal from this judgment. On June 17, 1974, while the appeal on the merits was pending before the Fifth Circuit, we issued a supplemental opinion and order granting counsel for plaintiffs an attorneys' fee award for $11,500. Wade v. Miss. Cooperative Extension Service, 378 F.Supp. 1251 (N.D.Miss.1974). An appeal was taken from this order as well and consolidated with the appeal on the merits.

On February 24, 1976, the Court of Appeals substantially affirmed on the merits but vacated and remanded for further consideration in light of supervening decisions that portion of our judgment awarding attorneys' fees and back pay to the individual defendants, Charlie F. Wade and LaVerne Y. Lindsey. Wade v. Miss. Cooperative Extension Service, 528 F.2d 508 (5 Cir. 1976).

The issues before us on remand, as summarized by the Court of Appeals, are as follows:

(1) Is there a permissible basis, under Alyeska Pipeline Service Co. v. The Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), for an attorney fee award in this case?

(2) Are the various state and county corporate defendants in this action "persons" within the meaning of 42 U.S.C. § 1983, and therefore suable under that statute?

(3) Are the various state and county corporate defendants suable under the provisions of 42 U.S.C. § 1981?

(4) Does the Eleventh Amendment, as construed in Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), bar this court from making back pay and attorney fee awards against the state and county defendants?

(5) Do any or all of the individual defendants benefit by Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975), which granted a qualified immunity to public officials acting in good faith?

(6) Were the Secretary and the Administrator properly realigned as plaintiffs following the intervention of the Department of Justice?

I. The Attorney Fee Issue

Any discussion of the power of federal courts to grant attorney fee awards to successful litigants must begin with Alyeska Pipeline Service Co., supra, where the Supreme Court eliminated the "private attorney general" exception to the American rule of not permitting prevailing parties to recover attorney fee awards. Since our original, pre-Alyeska award in this case was premised on the private attorney general rule, we must now consider whether an award may be made under some alternative rationale. Alyeska specifically permits the federal courts to make attorney fee awards in a number of delineated situations, three of which may arguably apply here:

(1) Where the plaintiff has recovered or preserved a fund for the common benefit of himself and others and may assess an attorney fee award from that fund;

(2) Where the defendant has "acted in bad faith, vexatiously, wantonly, or for oppressive reasons;"

(3) Where the attorney fee award is specifically authorized by an appropriate statute.

(a) The Common Benefit Theory — Plaintiffs' first argument for an attorney fee award here is based on the "common benefit" theory, that their successful litigation has conferred "a substantial benefit on the members of an ascertainable class and that here the court's jurisdiction over the subject matter of the suit makes possible an award that will operate to spread the cost proportionately among them," Mills v. Electric Auto-Lite Co., 396 U.S. 375, 393-94, 90 S.Ct. 616, 626, 24 L.Ed.2d 593 (1970); accord, Hall v. Cole, 412 U.S. 1, 5, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973). The common benefit theory, however, has no application to this case, and cannot serve as the basis for any award.

Mills was a stockholder derivative action against a corporate defendant, with the shareholders benefitting as a group by the successful setting aside of a corporate merger based on misleading proxy statements. By assessment of attorneys' fees against the corporation, the court was able to spread the cost of the litigation equitably among the shareholders, who were the direct beneficiaries of the suit. Hall involved an action by a union member against his union, which had violated his free speech rights guaranteed by § 101(a)(2) of the Labor Management Reporting and Discrimination Act. There, the court held that the successful prosecution of the suit rendered a substantial benefit both to the plaintiff and to all members of his union. The award, which was made against the union, likewise served to allocate the cost of the litigation among all the union's members, who benefitted similarly from this vindication of their First Amendment rights. See also, National Resources Defense Council, Inc. v. Environmental Protection Agency, 484 F.2d 1331 (1 Cir. 1973).

The present case contains no possibility of cost allocation and in that respect is legally indistinguishable from Hander v. Jan Jacinto Junior College, 519 F.2d 273 (5 Cir. 1975), where the plaintiff, a teacher in a state junior college, sued successfully to invalidate a regulation prohibiting long hair and beards for faculty members. The Fifth Circuit rejected Hander's "common benefit" argument for an attorney fee award in language applicable here:

In the instant case, the costs of litigation were not spread among those who would profit from the litigation — other teachers and employees — and the party against whom the district court assessed the attorneys' fees — the college — hardly derived any benefit from the invalidation of the grooming regulation. 519 F.2d at 281

In the instant case, even assuming that this action has conferred a substantial benefit upon an ascertainable class, assessment of an attorney fee award against the state and county defendants will hardly spread the cost of the litigation among the plaintiff class members who arguably might have benefitted from the prosecution of this action.

(b) Bad Faith — Plaintiffs' next asserted basis for a fee award is founded on the court's traditional power to grant such an award where a defendant has "acted in bad faith, vexatiously, wantonly, or for oppressive reasons," F. D. Rich Co. v. United States, 417 U.S. 116, 129, 94 S.Ct. 2157, 2165, 40 L.Ed.2d 703, 714 (1974). They contend that an award is justified because the MCES employment practices which were the primary subject of dispute in this action were carried out in bad faith and to oppress black employees, and because the defenses interposed were maintained in an obdurately obstinate manner in light of settled principles of law.

Bad faith in practicing discrimination in employment goes to liability of the defendants and the availability of the qualified immunity from individual liability afforded public officers for their actions taken in good faith, discussed infra. This is a different question from whether the case was litigated without any reasonable basis for contest. Considering the totality of defendants' actions and the state of the applicable law at the time of suit, we conclude that the defense of this action was not maintained in such bad faith as to warrant an award of attorney fees under the court's discretionary power.

Admittedly, the across-the-board demotion in job classification of MCES black professional employees subsequent to the 1965 merger of the dual segregated system was patently discriminatory. Nevertheless, MCES on its own initiative dismantled the dual structure, and took concrete steps toward elimination of inequality in the pay of white and black professional employees. Also, before suit was filed, MCES Director Bost instituted the practice of notifying all qualified employees of any staff job vacancies, uniform salaries for entry-level employees were established, and the agency provided all services other than local 4-H activities on a nondiscriminatory basis. We found that the discriminatory aspects of the local 4-H Clubs were not the result of any discriminatory intent of MCES.

The crux of plaintiffs' case was racial discrimination in promotional opportunities and salary increases within the agency. Although no black had been promoted to the position of county agent or extension home economist between merger and...