Jordon v. Gilligan

No. 73-1973 (6th Cir. April 25, 1974)

The 6th Circuit Court of Appeals vacates a district court order awarding attorneys' fees against the Governor and other officials of the State of Ohio in a legislative reapportionment case. The award is in substance and effect against the state itself, and where, as here, a state has not waived its sovereign immunity, the Eleventh Amendment bars a federal court from awarding attorneys' fees against it. Noting a contrary rule in the 5th Circuit and in several recent district court cases, the court nonetheless declines to extend federal jurisdiction by permitting the award, even though it acknowledges that the plaintiffs have conferred a benefit on the citizens of Ohio through this reapportionment suit. Plaintiffs' claim that sovereign immunity was waived by the state's failure to faise the issue until after the initial judgment and payment of the award through attachment is in error since defenses in the nature of a jurisdictional bar need not be raised in the trial court. The award order is held void for lack of jurisdiction.

Counsel for Plaintiffs
Nathaniel R. Jones General Counsel
National Association for the
Advancement of Colored People
1790 Broadway
New York, New York 10019

Albert J. Ortenzio
Ortenzio & Pritchard
20 1/2 W. Boardman Street
Youngstown, Ohio 44503

Counsel for Defendants
William J. Brown Attorney General
James Laurenson Asst. Attorney General
71 E. State Street
Columbus, Ohio 43215

Donald J. Guittar Asst. Attorney General
25 S. Front Street
Columbus, Ohio 43215

[4 ELR 20382]

PECK, Circuit Judge.

This is an appeal from an order entered in the district court denying appellants' motion to vacate a prior order of that court awarding attorneys' fees against the State of Ohio. The appellants' principal assertion is that the award was void since, under the Eleventh Amendment to the Constitution of the United States, the State was immune from the award, and the court was without jurisdiction to make it.

[4 ELR 20383]

The record establishes that in November of 1971, Samuel Jordon filed a class action suit against the members of the Ohio Apportionment Board, a state body responsible for the decennial reapportionment of the Ohio legislature. Included as defendants were state officials and members of the Mahoning County Board of Elections in their official capacities. The State of Ohio was not a named defendant. Plaintiff sought, on behalf of the class of all Ohio voters, a declaratory judgment that a reapportionment plan adopted by the Board was constitutionally infirm, and he asked that injunctions requiring the Board to establish a revised plan that would satisfy applicable requirements be issued. Plaintiff also prayed for an award of sttorneys' fees against the defendants. Federal jurisdiction was invoked pursuant to 28 U.S.C § 1343 for alleged violations of the Fourteenth and Fifteenth Amendments as implemented by 42 U.S.C. § 1983.

The Board's original plan was declared unconstitutional by the three-judge district court convened to hear the case under the terms of 28 U.S.C. § 2281. The district court ordered appellants to submit a new plan that would comply with state and federal constitutional demands. A revised plan was duly submitted to and approved by the court in December of 1971. After allowing appellees 60 days in which to file objections to the revised plan, the court entered a final order adopting it for the decennium.

Counsel for appellees filed applications for awards of attorneys' fees and expenses in the combined amounts of $27,272.65. The district court, in the absence of any objections to the applications from appellants, entered the following order on May 19, 1972:

"Counsel for plaintiffs have made application for the allowance of attorneys's fees and expenses to date. There is no opposition to the amounts requested and they seem reasonable on their face.

"Therefore, the State of Ohio, through John J. Gilligan, Governor; . . . collectively, in their official capacities, and as the persons responsible for apportioning the State of Ohio, are ordered and directed to pay attorney's fees . . . ."

Eight months passed and the judgment remained unpaid. On January 17, 1973, the district court ordered the award of attorneys' fees and expenses taxed as costs against the State of Ohio.¹ Appellees filed a praecipes for a writ of fieri facias against a bank account maintained by the State at a bank in Cleveland, Ohio, and the court acted to enforce it by ordering the bank to pay the contested monies to the clerk of the court.²

The appellants filed a motion to vacate the award of attorneys' fees based on Rule 60(b) of the Federal Rules of Civil Procedure, and simultaneously filed a motion for stay of execution pending disposition of the Rule 60(b) motion. Shortly thereafter, but before the writ was enforced, the State paid the $27,272.65 judgment. In response to the voluntary payment, the district court vacated, by order, the attachment of the State's bank account. The court also issued an order denying appellants' Rule 60(b) motion. It was from this denial that the present appeal was perfected.

Rule 60(b), Fed. R. Civ. P., provides in pertinent part as follows: "On motion and upon such terms as are just, the court may relieve a party . . . from a final judgment, order, or proceeding for the following reasons: . . . (4) the judgment is void. . . ." If, as appellants assert, the award of attorneys' fees and expenses against the State of Ohio was void for lack of jurisdiction, we must reverse. A void judgment is a legal nullity and a court considering a motion to vacate has no discretion in determining whether it should be set aside. See generally, 7 J. Moore, Federal Practice, P60.25[2], at 301 (2d ed. 1973).

Before discussing the central issue in this case a few words of clarification are in order. This cause, insofar as the award of attorneys' fees is concerned, although nominally against the chief executive and other officials of the State of Ohio, in substance and effect was against the State.³ Any award of attorneys' fees, whether against the State of Ohio or its officials, vitally affects the rights and interests of the State in preserving its revenues. According to the general rule "a suit is against the sovereign if 'the judgment sought would expend itself on the public treasury . . . .' Land v. Dollar, 330 U.S. 731, 738 (1947) . . . ." Dugan v. Rank, 372 U.S. 609, 620 (1963); accord, Dawkins v. Craig, 483 F.2d 1191 (4th Cir. 1973). And as this Court stated in Harrison Construction Co. v. Ohio Turnpike Com'n., 272 F.2d 337, 340 (6th Cir. 1959), "When the action is in essence one for the recovery of money from the State, the State is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants." See, Kraus v. Rhodes, 471 F.2d 430 (6th Cir. 1972).

Appellants do not contend that state officials are immune from suits brought to restrain unconstitutional acts undertaken n their official capacities. The law clearly recognized the right of an interested party to force state officials to act in accordance with the Constitution. Georgia R.R. and Banking Co. v. Redwine, 342 U.S. 299 (1952); Ex parte Young, 209 U.S. 123 (1908); Lee v. Board of Regents of State Colleges, 411 F.2d 1257 (7th Cir. 1971); Samuel v. University of Pittsburgh, 56 F.R.D. 535 (W.D. Pa. 1972); Wright, Law of Federal Courts, § 48, at 183 (1970). Appellants do assert, however, that both a state and its officials are immune from monetary awards arising in connection with such a suit, even if the awards are for attorneys' fees.

To further sharpen the focus of this inquiry, we note that in the instant case the district court ordered the attorneys' fees taxed as costs, and ordered the State of Ohio to pay the costs.⁴ We do not question the general principle that a court may tax attorneys' fees as costs under the appropriate circumstances in cases involving private parties⁵ or where sanctioned by statutory law,⁶ but it seems basic that if a party is immune [4 ELR 20384] from an award of attorneys' fees as such, that immunity is not altered by taxing the fees as part of the costs. If the award is void in one form, it is void in the other.

Stripped of distracting shadow questions, the case before us presents a singular, although by no means simple, issue: Does a federal court have the power to award attorneys' fees against a state or its officials acting in their official capacities in a suit brought under 42 U.S.C. § 1983 to vindicate constitutional rights? To this inquiry we must respond in the negative.

The Supreme Court reviewed and clarified the principles under which a federal court may award attorneys' fees against an unsuccessful litigant in Hall v. Cole, 412 U.S. 1 (1973). The Court recognized the existence of a "class benefit" rationale for awarding fees where "plaintiff's successful litigation confers 'a substantial benefit on the members of an ascertainable class . . . .'" Id. at 5. The basis of this theory is that because the efforts of the individual plaintiff benefited a group or class of persons, equity requires the group to share the financial burden of the plaintiff's litigation. In the instant case, that appellee's prosecution of this suit to bring Ohio's legislative districts within the requirements of the one man — one vote rule benefited every Ohio voter is not questioned. However, as the Supreme Court pointed out in Hall, the class benefit theory can only be employed where the court has the requisite jurisdiction to make such an award. 412 U.S. at 5. In this case the district court clearly had jurisdiction over the appellants insofar as the suit involved a plea for injunctive relief to force constitutional reapportionment.

The Eleventh Amendment, however, contains an express constitutional limitation on the power of the federal courts.

"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State or by Citizens or Subjects of any foreign State."

Through judicial interpretation, this amendment has been held to bar a citizen who wouldbring suit against his own state. Employees v. Missouri Public Health Dep't., 411 U.S. 279 (1973)., Parden v. Terminal Ry. of the Alabama State Docks Dep't., 277 U.S. 187 (1964). This amendment has also been found to be the embodiment of the doctrine of sovereign immunity. Adams v. Harris County, Texas, 316 F. Supp. 938 (S.D. Texas 1970), rev'd on other grounds, 452 F.2d 997 (5th Cir. 1971). The sovereign immunity of the states is, then, a limitation of federal judicial power, that is, on the constitutional grant of jurisdiction to the federal courts.

As stated heretofore, the Eleventh Amendment's immunity is unavailable to state officials where an action of constitutional proportions is brought for injunctive relief. Georgia R.R. and Banking Co. v. Redwine, supra, etc. The rationale behind the doctrine of sovereign immunity is the protection of the states' fiscal integrity. See, Land v. Dollar, supra; Dugan v. Rank, supra; Harrison Construction Co. v. Ohio Turnpike Com'n., supra. "Thus the rule has evolved that a suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment." Edelman v. Jordon, 42 U.S.L.W. 4419, 4422 U.S. March 26, 1974); accord, Kraus v. Rhodes, supra.

In Sincock v. Obara, 320 F. Supp. 1098 (Del. 1970), a reapportionment suit similar to the one at bar, a three-judge district court concluded that an award of attorneus' fees could not be made against the State of Delaware because of the prohibition contained in the Eleventh Amendment. On the other hand, appellees point out that in Sims v. Amos, 340 F. Supp. 691 (M.D. Ala. 1972), the district court awarded attorneys' fees against Alabama's state legislators, secretary of state, attorney general and governor on the basis of the class benefit doctrine. Unfortunately, it is impossible to determine from the opinion whether the award was made against the above officials in their official capacities or as private individuals, there is no indication that the State of Alabama was held liable, and the court did not deal with the Eleventh Amendment problems presented here.⁷

Sims was appealed to the Supreme Court. Appellees assert that the Supreme Court's affirmance of Sims, 409 U.S. 942 (1972), conclusively establishes a district court's power to award attorneys' fees against a state in a suit brought to enforce constitutional rights. We do not agree. Sims v. Amos was reported in two segments at the district court level: the first report, dealing with the substantive reapportionment issues, is found at 336 F. Supp. 924, while the decision involving the claim for attorneys' fees appears at 340 F. Supp. 691. The affirmance relied upon so heavily by appellees was by an order without opinion which noted only that Sims v. Amos, 336 F. Supp. 924, was affirmed. 409 U.S. at 942. The implications of the Court's failure to mention the portion of Sims appearing in 340 F. Supp. are unclear, but in any case, we are unable to find in the simple order of affirmance on the reapportionment issues any helpful precedent on the Eleventh Amendment question here presented.

In Gates v. Collier, 489 F.2d 298 (5th Cir. 1973), the court affirmed an award of attorneys' fees against officials of the State of Mississippi responsible for impermissible conditions found in a state prison. The court approved the award even though the district court had prescribed that it was to be paid "from funds which the Mississippi Legislature, at its 1973 Session, may appropriate for the operation of the Mississippi State Penitentiary . . . ." 489 F.2d at 303. In reaching its decision the court concluded that an "award of attorney's fees is not an award of damages against the State, even though funds come from the state appropriations," and therefore, it was not barred by the principle of sovereign immunity or by the Eleventh Amendment. 489 F.2d at 302. Primary reliance was placed upon Sims v. Amos, supra, although the court did cite a number of other cases for support.⁸ Whether an award of attorneys' fees differs from an award of damages seems to us to be irrelevant, and we respectfully decline to adopt the position taken by the Fifth Circuit. For the reasons stated above, we find no precedent for such an award in Sims, and the balance of the cited cases dealt with awards against local governmental units, bodies which are not clothed with immunity.

Appellees have also called attention to two recent district court cases, Taylor v. Perini, 359 F. Supp. 1185 (N.D. Ohio 1973) and La Raza Unida v. Volpe, 57 F.R.D. 94 (N.D. Cal. 1972), in which, in our opinion, misplaced reliance on Sims was found to be dispositive. In Taylor, the court held that the Eleventh Amendment does not immunize an official of the State of Ohio from an award of attorneys' fees, and ordered that state to pay the award. La Raza Unida involved a similar question on the propriety of an award of attorneys' [4 ELR 20385] fees against an officer of the State of California, and the court reached the same result. Once again, we point out that in our opinion, Sims does not provide any assistance in deciding the Eleventh Amendment question here presented. Further, we note that in the La Raza Unida case, the court was much impressed by a California statute which provided that monetary claims against state officers were to be reimbursed by the state. Whether the court considered this a waiver of immunity does not appear, but the Supreme Court of Ohio has specifically held that the State of Ohio is immune from awards of attorneys' fees in the absence of a consent rendered by a twothirds vote of the General Assembly. Grandle v. Rhodes, 169 Ohio St. 77, 157 N.E.2d 336 (1959); See also, Constitution of Ohio, Art. III, §§ 22 & 29. We hold that where, as here, a state has not waived its sovereign immunity, the Eleventh Amendment bars a federal court from awarding attorneys' fees against it.

One of the reasons given by the district court in this case for denying appellants' Rule 60(b) motion was that, "the judgment entered herein is res judicata as to any issue which was or could have been raised in the initial proceedings." While it is true, as the district court pointed out, that appellants failed to object to the award until after the judgment was entered and execution proceedings undertaken, there are two reasons why the court should have granted the motion to vacate. First, a void judgment is no judgment at all and is without legal effect. Lubben v. Selective Service System Local Bd. No. 27, 453 F.2d 645 (1st Cir. 1972). Secondly, the doctrine of "res judicate does not preclude a litigant from making a direct attack [under Rule 60(b)] upon the judgment before the court which rendered it." 1B J. Moore, Federal Practice, P0.407, at 931 (2d ed. 1973); see, United States v. United States Fidelity Guaranty Co., 309 U.S. 506 (1940); see also Lubben v. Selective Service System Local Bd. No. 27, supra, at 649.

Closely allied to the district court's reasons for denying the motion to vacate is appellees' suggestion that appellants and the State of Ohio have, by their failure to object until after the judgment and payment, waived any immunity they may have had. A party cannot be precluded from raising the issue of voidness in a direct or collateral attack because of the failure to object prior to, or at the time of, entry of the judgment.

"The Eleventh Amendment declares a policy and sets forth an explicit limitation on federal judicial power of such compelling force that this court will consider the issue arising under the Amendment in this case even though argued for the first time in this court." Ford Motor Co. v. Dep't of Treasury of Indiana, 323 U.S. 459, 467 (1945).

And, "the Eleventh Amendment defense sufficiently partakes of the nature of a jurisdictional bar so that it need not be raised in the trial court. . . ." Edelman v. Jordon, 42 U.S.L.W. 4419, 4427 (U.S. March 25, 1974). Thus, once it is determined that a state is not subject to federal jurisdiction because of the operation of the eleventh Amendment, a court must vacate any judgment entered in excess of its jurisdiction. In light of the above analysis it is clear that the denial of appellants' motion to vacate under Fed. R. Civ. P. 60(b) was erroneous.

Lastly, appellees ask that we consider how critically important it is for plaintiffs in public interest litigation to have the right to obtain awards of attorneys' fees and expenses. We fully recognize the often valuable service performed by the so-called "private attorney general" in protecting the constitutional rights of large segments of our society, but we are also mindful of the clear limitation on federal jurisdiction in the Eleventh Amendment. This decision does not affect in any way the validity of awarding attorneys' fees against non-sovereign defendants, and in view of its limited scope it is difficult to see why it would have the dire consequence of preventing public interest litigation that appellees envision.

The judgment of the district court entered June 12, 1973, denying appellants' motion to vacate the award of attorneys' fees and expenses is reversed, and the order of the district court dated May 19, 1972, is vacated. Each party shall pay its own costs on appeal.

1. "By previous order . . . the State of Ohio was ordered to pay Plaintiff's attorneys' fees in this action. The Court now being advised that the State of Ohio has failed and continues to refuse to comply with said order, now directs that Plaintiff's attorneys' fees and expenses be taxed as costs in this action."

2. "The Court being advised that there are funds being held in excess in the amount of $27,272.65, it is ORDERED that the Union Commerce Bank turn over and deliver funds in the sum of $27,272.65 to the Clerk of this Court forthwith; said amount representing the sum designated and levied upon by the Fieri Facias." Order of February 2, 1973.

3. There can be no doubt that the district court intended the award of attorneys' fees to run against the State of Ohio, even though the State was not a party to this suit. Although the exact meaning of the court's May 19, 1972 order, quoted in the text, is arguably unclear, any possible misinterpretation was obviated by the January 17, 1973 order (supra note 2), and by the subsequent attachment of the State's bank account.

4. Order of January 17, 1973, supra note 1.

5. "Although the traditional American rule ordinarily disfavors the allowance of attorneys' fees in the absence of statutory or contractual authorization, federal courts, in the exercise of their equitable powers, may award attorneys' fees when the interest of justice so requires." Hall v. Cole, 412 U.S. 1, 4 (1973). Justice has been held to so require where bad faith is exhibited by the unsuccessful litigant or where "plaintiff's successful litigation confers 'a substantial benefit on members of an ascertainable class . . . .'" Id. at 5.

This Court has also recognized the equitable power to make such awards. Smoot v. Fox, 353 F.2d 830 (6th Cir. 1965).

We take heed of the fact that in this case there was no evidence of bad faith on the part of appellants or the State of Ohio.

6. Statutes often provide for awards of attorneys' fees. See, e.g., Clayton Act, 15 U.S.C. § 15; Communications Act of 1934, 47 U.S.C. § 206; Interstate Commerce Act, 49 U.S.C. § 16(2); etc.

7. The Eleventh Amendment was mentioned by the district court in Sims but only in a footnote, and not on the precise question before this Court. Sims v. Amos, 340 F. Supp. 691, 694, n. 8.

8. Brewer v. School Board of City of Norfolk, Va., 456 F.2d 943 (4th Cir. 1972), cert. denied, 406 U.S. 933; Thompson v. Richland Parish Police Jury, 478 F.2d 1401 (5th Cir. 1973); Wyatt v. Stickney, 344 F. Supp. 387 (M.D. Ala. 1972).