(daily ed. Sept 21, 1976) (remarks of 8en. Kennedy) ("it is in-
tended simply to expressly authorize the courts to continue to make
the kinds of awards of legal fees that they had been allowing prior
to the Alyeska decision") ; 122 Cong. Rec. 816,431 (daily ed. Sept.
22, 1976) (remarks of Sen. Hathaway).

«' § 204(a), 78 Stat. 244, 42 U.S.C. §2000a-3; 20 U.S.C. § 1617.

^^Northcross V. Board of Education, 412 U.S. 427, 428 (1973\
qi'Ming Nevmnn v. Piggie Park Enterjyrises, Inc., 390 U.S. 400. 402
a968^.

" See S. Rep. No. 1011. 94th Cong., 2d Sess. 4 (1976) (hereinafter
"3. Rep.") ; H.R. Rep. No. 1558, 94th Cong.. 2d Sess. 9 (hereinafter

34



210



In enacting the Civil Rights Attorney's Fees Avcards
Act, Congress exercised its "power and judgment" '" to
award attorneys' fees to prevailing plaintiffs in Section
1983 actions. Petitioners seek to avoid that judgment by
arguing (1> chat the Act may not be retroactively ap-
plied to them and (2) that fees may not be awarded
against a defendant who enjoys an absolute immunity
from damage liability or a defendant who enjoys a
qualified im.munity and who has acted in good faith.
Both arguments are diametrically opposed to the plain
language and legislative history of the Act and are con-
trary to the decision of every federal court of appeals
that has ruled on the issues. They are arguments that
petitioners should address to Congress and not to this
Court.

A. The Legislative History of the Act Plainly Mani-
fests a Congressional Intent To Apply the Act to all
Cases Pending on the Date of Its Enactment.

Petitioners have argued that the Act should not be
applied retroactively to provide for an award of attorneys'
fees for services rendered before the effective date of the
Act. The principal argument advanced is that a retroac-
tive application of the Act would result in a "manifest
injustice" and would, therefore, be inconsistent with the
analysis of this Court in Bradleij v. School Board of
the City of Richmond, 416 U.S. 696 (1974). However,
that argument totally misperceives the thrust of Bradley.
Indeed, the Bradley decision compels a retroactive appli-
cation of the Act to all cases pending on the date of its
enactment.

"H.R. Rep.'") ("'prevailing plaintiffs should ordinarily recovex- their
counsel fees. Nev:mnn v. Piggie Park Eiiterprises, supra; Xor^h-
cms.^ V. Merpphis Board of Education, fiiipra").

''' Abjeska Pipeline Service Co. \. Wilde rri'^sfi Societu, miDrri, 421
U.S. at 263.

So



211



The central principla of the Bradley decision is "that a
court is to apply the law in effect at the time that it
renders its decision unless doing so vvould result in mani-
fest injustice or there is statutory direction or legislative
history to the contrary'' " Applying that principle to
the attorneys' fees award provision of the Emergency
School Aid Act of 1972, the Court in Bradley looked
first to the legislative history of that Act. After find-
ing that the legislative history was not clear on the
retroactivity question, the Court inquired into whether
a retroactive application of the statute would result in a
"manifest injustice," and concluded that no such injus-
tice would result. This Court then reversed' the court of
appeals' refusal to authorize an award of attorneys' fees.

In contrast to the statute considered in Bradley, the
legislative history of the Civil Rights Attorney's Fees
Awards Act is not silent on the retroactivity question.
Rather, it is unmistakably clear that Congress intended
the Act to apply to all cases pending at the time of its
enactment. The House Report plainly states:

"In accordance with applicable decisions of the
Supreme Court, the bill is intended to apply to all
cases pending on the date of enactment as well as
all future cases. Bradley v. Richmond School Board,
416 U.S. 696 (1974).""

During the course of the House debates Congressman
Drinan, the sponsor of the House bill, noted, without
objection :

"This bill would apply to cases pending on the date
of enactment. It is the settled rule that a change in
statutory law is to be applied to cases in litigation." "



73



^1 Id. at 711 (emphasia added).

^- H.R. Rep. at 4 n.6. See also S. Rep. at 5.

'3 122 Cong. Rec. H12.160 (daily ed. Oct. 1, 1976).

96



212



A similar point was made by Congressman Anderson:

"MR. BEARD of Tennessee. ... is there any retro-
active nature of this piece of legislation . . . ?

MR. ANDERSON of Illinois. Mr. Speaker, if the
gentleman will yield, it would apply to cases now
pending . . . ." ^*

In the Senate debates Senator Abourezk, manager of the
bill, observed, again without contradiction:

"The Cinl Rights Attorneys* Fees Awards Act au-
thorizes Federal courts to award attorneys' fees to
a prevailing party in suits presently pending in the
Federal courts." "

Indeed, the House defeated by a vote of 268-104 a motion
to recommit the bill for the purpose of obtaining an
amendment to make the Act prospective only.^^

As this Court held in Bradley, a clear manifestation
of legislative intent is dispositive of whether a statute
should be given retroactive application. In this case the
unambiguous legislative history compels a retroactive ap-
plication of the Civil Rights Attorney's Fees Awards Act.
Indeed, every court of appeals that has addressed the
retroactivity question has so held."

This legislative history also fully answers petitioners'
claim that the retroactive award of attorneys' fees against
public officials who did not knowingly violate constitu-



T«/(f. atH12,155.

" 122 Cong. Rec. 817,052 (daily ed. Sept. 29, 1976).

■« 122 Cong. Rec. H12,166 (daiiy ed. Oct. 1, 1976) .

" Wheaton v. Knefel, 562 F.2d 550 (8th Cir. 1977) ; Gates v.
Collier, 559 F.2d 241 (5th Cir. 1977) ; Beazer V. New York City
Transit Authority, 558 F.2d 97 (2d Cir. 1977) ; Bond V. Stanton.
555 F.2d 172 (7th Cir. 1977) ; Martinez Rodriguez v. Jiminez. 551
F.2d 877 (1st Cir. 1977). Two circuit courts have applied the Act
retroactively to cases pending on the date of its enactment without
discussing the retroactivity issue. Franklin v. Shields, No. 75-2057,
slip op. (4th Cir., Sept. 19, 1977) ; Seals v. Quarterly County Court,
5«2F.2d390 (6th Cir. 1977).

37



213



tional standards gives rise to a "manifest injustice"
within the meaning of Bradley. Bradley holds that claims
of ^'manifest injustice/' such as those raised here, are
simply not germane where Congress has clearly expressed
its will. Thus, an analysis of the purported impact of the
Act is plainly not appropriate in this case.



78



^^ Aside from its lack of materiality in this case, petitioners*
manifest injustice assertion has four fatal flaws:

(1) Bradley, far from supporting petitioners' argument, refutes
it. In rejecting the school board's manifest injustice claim in that
case, the Court emphasized (a) that plaintiffs had rendered a sub-
stantial social service by bringing the school board into compliance
with its constitutional mandate; (b) that no matured or uncondi-
tional right would be infringed by a retroactive application of the
Act; and (c) that "there is no indication that the obligations under
[the attorneys' fee provision] if known, rather than simply the
common-law availability of an award, would have caused the Board
to order its conduct so as to render this litigation unnecessary and
thereby preclude the incurring of such costs." 416 U.S. at 721. Simi-
lar considerations undercut any claim of manifest injustice in the in-
stant case. Plaintiffs have vindicated an important social interest;
and petitioners can assert no matured rights that would be ad-
versely impacted by a retroactive application of the Act. More-
over, at all relevant times in this lawsuit the possibility of an at-
torneys' fees award to plaintiffs was a known risk of litigation.
See, e.g.. La Raza Unida v. Volpe, 57 F.R.D. 94 (N.D. Cal. 1972),
aff'd, 488 F.2d 559 (9th Cir. 1973). See also Brandenberger v.
Th&mpson, 494 F.2d 885 (9th Cir. 1974). Petitioners cannot, there-
fore, assert that the Act imposed on them an unforeseen liability
which, if known, would have altered their course of conduct.

(2) Petitioners' suggestion that they will bear the expense of
the attorneys* fees award is factually incorrect. The record demon-
strates that under the California indemnification statute, the city
and county (not petitioners) will pay the award.

(8) The legislative history of the Act plainly indicates that Con-
gress intended to allow for the imposition of attorneys' fees against
public officials in both their official and individual capacities. Se^
S. Rep. at 5: "[I]t is intended that the attorneys' fees, like other
items of costs, will be collected either directly from the official, in
his official capacity, from funds of his agency or under his control,
or from the State or local government Cwhether or not the agency
or government is a named party)." (footnotes omitted).

(4) Congress cited this very case as an example of a case that
correctly applied "appropriate standards" in awarding attorneys'
fees. S. Rep. at 6.

38



214



B. Congress Did Not Intend the Common Law Im-
munity Doctrines To Insulate Public Officials From
Attorneys' Fees Awards.

Petitioners argue that the common law immunities
that protect certain public officials from damage liability
under Section 1983 " should be extended so as to insulate
such officials from an attorneys' fees award under the
Act.^'' That argument is addressed to the wrong forum:



'^ See, e.g., Imbler v. Pachtman, 424 U.S. 409 (1976) (absolute
immunity for prosecutor against damage liability) ; Wood v. Strick-
land, 420 U.S. 308 (1975) (qualified immunity for school officials
against damage liability) ; Scheuer v. Rhodes, 416 U.S. 2.32 (1974)
(qualified immunity for state executive officials against damage lia-
bility) ; Pierson V. Ray, 386 U.S. 547 (1967) (absolute immunity
for judges and qualified immunity for police ofl!icers against damage
liability) ; Tenney v. Brandhove, 341 U.S. 367 (1951) (absolute im-
munity for legislators against damage liability).

^° Petitioners press no claim that the Eleventh Amendment bars
the award of attorneys' fees in this case. Nor could they. This Court
has clearly held that the Eleventh Amendment does not preclude
a monetary recovery from counties or other political subdivisions
of the state. Edelman v. Jordan, 415 U.S. 651, 667 n.l2 (1974);
Lincoln County v. Luning, 133 U.S. 529, 530 (1890) ; see Develop-
ments in the Law — Section 1983 and Federalism, 90 Harv. L. Rev.
1133, 1195 (1977). This action was brought against city and county
officials, and any recovery will be paid by those political subdivisions.
The Eleventh Amendment is not, therefore, involved in this lawsuit.

This case d'>es not raise the Eleventh Amendment considerations
posed by Finney V. Hutto, 548 F.2d 740 (8th Cir. 1977), cerf. granted,
46 U.S.L.W. 3261 (U.S. Oct. 18, 1977). In Hutto, the Eighth Circuit
held that an award of attorneys' fees under the Act against a state
is not barred by the Eleventh Amendment. Every other circuit that
has addressed the issue has agreed. Seals v. Quarterly County Court,
562 F.2d 390 (6th Cir. 1977); Gates v. Collier, 559 F.2d 241 (5th
Cir. 1977) ; Bond v. Stanton, 555 F.2d 172 (7th Cir. 1977) ; Martinez
Rodriquez V. Jiminez, 551 F.2d S77 (1st Cir. 1977). That result is,
we submit, correct for two reasons:

(1) The Act is " 'appropriate legislation' for the purposes of en-
forcing the provisions of the Fourteenth Amendment . . ." and the
Eleventh Amendment does not, therefore, bar an attorneys' fees
award against the state. Fitz'patnck v. Bitzer, 427 U.S. 445, 456
(1976).

[Footnote continued]

39



215



The issue is one for Congress, which has squarely re-
jected petitioners' view.

The thrust of petitioners' argument appears to be that
the financial impact of an attorneys' fees award is no
different from that of the monetaiy damage claims that
are barred by the common law immunities, and that the
Act therefore should be construed to preclude fees awards
against a defendant who is covered by one of those
immunities." That argument is misguided and should be
rejected.



(2) An award of attorneys' fees to a prevailing plaintiff is not a
monetary judgment against the state of a type that is barred by
the Eleventh Amendment. The financial burden imposed on the state
by a fees award is merely an ancillary effect of prospective compli-
ance with constitutional standards. Coin-pare Edelman v. Jordaii,
415 U.S. 651 (1974), vnth Ex parte Young, 209 U.S. 123 (1908).
See also Note, Attorneys' Fee Awards and the Eleventh Amendment,
88 Harv. L, Rev. 1875, 1896 (1975).

'^Petitioners Bergna and Brown also suggest that "[t]he rea-
sons underlying the damages immunity of Imbler v. Pachtman,
supra, also support an immunity against declaratory and/or in-
junctive actions for prosecutors and those who carry out judicial
orders, at least when, as here, they participate in the good faith
exercise of judicial functions." Bergna Brief at 30 n.21. That prop-
osition has been uniformly rejected by the circuit courts. See, e.g.,
Universal Amusement Co. v. Vance, 559 F.2d 1286 (5th Cir. 1977)
(prosecutorial immunity against damages does not bar § 1983 injunc-
tive action against prosecutor) ; Person V. Association of the Bar,
554 F.2d 534 (2d Cir.), cert, denied, 46 U.S.L.W. 3293 (U.S. Oct. 31,
1977) (judicial immunity against damages does not bar § 1983 action
for injunctive relief against Justices of Supreme Court, Appellate
Division) ; DrolUnger v. Milligan, 552 F.2d 1220 (7th Cir. 1977)
(judges and officers of the court are not immune from § 1983 suits
seeking equitable relief) ; Timmerman v. Brown, 528 F.2d 811 (4th
Cir. 1975) (immunity doctrine does not protect qualified officials
from § 1983 injunctive action) ; Fowler v. Alexander, 478 F.2d 694
(4th Cir. 1973) (judicial immunity against damages does not bar
S 1983 action for injunctive relief) ; Conover V. Movtemuro, 477 F.2d
1073 (3d Cir. 1973) (judicial immunity ag-ainst damages doe.^ not
bar § 1983 injunctive action against a family division judge and a
district attorney') . See al-io McCormack & Kirkpatrick, Immvnities
of State Officials Under Section 198.1, 8 Rut.-Cam. L.J. 65, 79 (1976)
("the lower courts generally have held that judicial immunity does

40



216



In the first place, petitioners' argument blurs some
critical distinctions between damage avrards and awards
of attorneys' fees.'' Unlike a damage av/ard, an award
of attorneys' fees does not purport to indemnify a victim
for a loss or to punish a wrongdoer for his conduct. The
award arises, not from the harm suffered by the plaintiff
as the result of an alleged wrongdoing, but rather from
expenses incurred in seeking \'indication of his rights
through court litigation/'' Presumably for this reason.
Congress correctly decided that attorneys' fees should be
collected "like other items of costs," " and not as damages.

More significantly, the very cases on which petitioners
rely in their argument recognize that the question of the
availability of a common law immunity defense in Sec-
tion 1983 actions was "one essentially of statutory con-
struction." ^ In deciding whether such defenses could be
asserted against Section 1983 damage claims, this Court
identified as the threshold issue whether "Congress had
intended to restrict the availability in § 1983 suits of
those immunities which historically, and for reasons of
public policy, had been accorded to various categories of
officials." Imbler v. Pachtman, 424 U.S. 409, 417-18



not extend to actions for injunctive relief). See also Note, The Fed-
eral Injunction as a Remedy for Unconstitutional Conduct, 78 Yale
L.J. 143, 146 n.l7 (1968) (listing numerous cases in which injunctive
relief against constitutional violations by police was granted under
§ 1983).

«2 See Fitzpatrick V. Bitzer, 427 U.S. 445. 460 (1976) (Stevens, J..
concurring) ; cf. Fairmont Creamery Co. v. Minnesota, 275 U.S. 70
(1927) (costs assessed against the state by the Supreme Court in
case appealed to test the constitutional validity of a state criminal
statute).

^^ See generally Note. Attorneys' Fee Awards and the Eleventh
Amendment. 88 Harv. L. Rev. 1875, 1895 (1975i.

s^S.Rep. at5n.6.

" Wood V. Stricklnrd. 420 U.S. 308. 316 (1975) (footnote omitted) .
See, e.g., Irt'blfr v. Pachtman, sv/prn. ; Piers^n V. Ray. supra.

41



217



(1976). In ans'wering that question, the Couii; con-
cluded that the Congress which originally enacted Sec-
tion 1983 did not intend to eliminate the traditional im-
munity against damage awards of several types of public
officials.'®

Notwithstanding the emphasis on legislative intent in
the cases they cite, petitioners do not address the legisla-
tive history/ of the Act from which they seek immunity.
Rather, they press considerations that were plainly be-
fore and rejected by Congress in its deliberations on the
Civil Rights Attorney's Fees Awards Act. Indeed, the
legislative history of the Act is unmistakably clear: Con-
gress did not intend to extend the common law immunities
of prosecutors and police officers to insulate them from an
award of attorneys* fees made against them in their offi-
cial capacities in Section 1983 actions."



8« Tenney v. Brandkove, supra (legislators) ; Pierson v. Ray, supra
(judges and police officers) ; Scheuer v. Rhodes, supra (executive
officials) ; Wood V. Strickland, supra (school ofBcials) ; Imbler v.
Pachtman, supra (prosecutors) .

8^ Without citation to authoritj', Petitioners Bergna and Brown
challenge Congress' constitutional authority under § 5 of the Four-
teenth Amendment to authorize the award of attorneys' fees against
state public officials. However, the position petitioners advance
would emasculate the broad grant of congressional authority in § 5
of the Fourteenth Amendment and simply cannot be reconciled with
this Court's decisions upholding congressional exercise of that power.
See, e.g.. Ex parte Virginia, 100 U.S. 339 (1879) ; Katzenbach v.
Morgan, S84 U.S. 641 (1966); Oregon v. MitcheU, 400 U.S. 182
(1970) ; Fitzpatrick V. Bitzer. 427 U.S. 445 (1975). In Ex parte
Virginia, supra, the Court held :

"Whatever legislation is appropriate, that is, adapted to carry
out the objects the amendments have in view, whatever tends to
enforce submission to the prohibitions they contain, and to
secure to all persons the enjoyment of perfect equality of civil
rights and the equal protection of the laws against State denial
or invasion, if not prohibited, is brought within the domain of
congressional power." 100 U.S. at 345-46.

Congress enacted the Civil Rights Attorney's Fees Awards Act to
protect private actions to enforce our civil rights laws. Congress

42



218



To the contrary, Congress perceived that the very un-
availability of damage awards against such officials was
an affirmative reason to authorize awards of attorneys'
fees against them.

"Furtheraiore, while damages are theoretically avail-
able under the statutes covered by H.R. 15460, it
should be observed that, in some cases, immunity doc-
trines and special defenses, available only to public
officials, preclude or severely limit the damage rem-
edy. Consequently awarding counsel fees to prevail-
ing plaintiffs in such litigation is particularly im-
portant and necessary if Federal civil and constitu-
tional rights are to be adequately protected. To be
sure, in a large number of cases brought under
the provisions covered by H.R. 15460, only injunc-
tive relief is sought, and prevailing plaintiffs should
ordinarily recover their counsel fees." ®^

As a consequence, Congress was careful specifically to in-
clude public officials within the reach of the legislation.

"As with cases brought under 20 U.S.C. § 1617, the
Emergency School Aid Act of 1972, defendants in
these cases are often State or local bodies or State or
local officials. In such cases it is intended that the
attorneys' fees, like other items of cost, will be col-
lected either directly from the official, in his official
capacity, from funds of his agency or under his con-
trol, or from the State or local government (whether or
not the agency or government is a named party)." *^



reasonably believed that, without such legislation, those civil rights
laws would "become mere hollow pronouncements." S. Rep. at 6. It
is manifest that the Act is, in this Court's words, legislation that is
"adapted to carry out the objects the amendments have in view."

8* H.R. Rep. at 9 ffootnote omitted).

*>* S. Rep. at 5 Cfootiiotes omitted). In this case, by California
statute, the f-^^-es will be paid by local government agencies, not by
the individual petitioners. Since the immunity doctrines are rooted

[Footnote continued]

43



219



Circuit courts that have reviewed this legislative history
have unanimously concluded that Congress did not intend
to immunize public officials, sued in their official capacity,
from av;ard3 of attorneys' fees under the Act/'" Other
circuit courts have approved such awards without dis-
cussion.®^

Indeed, it cannot be questioned that petitioners are
among the class of public officials against whom fees may
be awarded under the Act. Twice the Senate cited this
very case as exemplary of the "traditionally effective
remedy of fee shifting" that the Act was intended to
restore.'' Such unusually direct congressional guidance
provides a simple, but dispositive, answer to petitioners*
immunity claim.



in the view that law enforcement officials should not incur personal
liability for certain public acts, those doctrines would be inapplica-
ble here even if Congress had not specifically foreclosed them.

wfioTid v. Stanton. 555 F.2d 172 (7th Cir. 1977); Universal
Amusement Co. v. Vance, 559 F.2d 1286 (5th Cir. 1977).

^See, e.g., Seals v. Quarterly County Court, 562 F.2d 390 (6th
Cir. 1977); Martinez Rodriquez v. Jiminet, 551 F.2d 877 (1st Cir.
1977) .

" S. Rep. at 4, 6. Congressional citation to this case also makes
clear that the district court properly exercised its discretion in
awarding fees:

"It is intended that the amount of fees awarded under S. 2278
be governed by the same standards which prevail in other
types of equally complex Federal litigation, such as antitrust
cases and not be reduced because the rights involved may be
nonpecuniar^' in nature. The appropriate standards . . . are
correctly applied in such cases as Stanford Doily v. Zurcker, 64
F.R.D. 680 (N.D. Cal. 1974) . . . ." Id. at 6.

44



42-190 O - 79 - 15



220



CONCLUSION



For these reasons, the Court should affirm the judg-
ment of the court of appeals.

Respectfully submitted,



Of Counsel:

Jack C. Landau
The Reporters Committee

FOR Freedom of the Press
1750 Pennsylvania Avenue,

N.W.
Washington, D.C.

Arthu?. B. Hanson

888 17th Street. N.W.

Washington, D.C.

The American Newspaper
Publishers Association

James R. Cregan
529 14th Street, N.W.
National Pr^ss Building
Washington, D.C.

The National Newspaper

Association

Erwin G. Krasnow
1771 N Street. N.W.
Washington, D.C.

The National Association
of Broadcasters

RiCH.ARD ?J. Sckmedt, Jr.

1020 L Street, N.W.

Washington, D.C.

The American Society of
Neirspaper Editrrs; and
The Associated Press
Managing Editors



Lloyd N. Cutler
Dennis M. Flannery
WiLLLAM T. Lake
A. Stephen Hut, Jr.

AL-AN N. B?j^.VERMAN

Wilmer, Cutler & Pickering
1666 K Street, N.W.
Washington, D.C. 20006

Attorneys for Amid Curiae

J. L-ALTIENT SCHARFF

1200 18th Street, N.W.
Washington, D.C.

The Radio-Television News

Directors Association

Christopher B. Fager

1750 Pennsylvania Avenue, N.W.

Washington, D.C.

The Student Press Law Center

BxvTD S. Barr

1101 17th Street, N.W.

Washington, D.C.

The Newspaper Guild

Mortimer Becker

Stanford L Wolff

1350 Avenue of the Americas

New York, New York

The American Federation of
Television and Radio Artists

Michael B. Dor.ms

1127 11th Street

Sacramento, California
The California Newspaper
Publishers Association



December 17, 1977



45



221

APPENDIX A

[Facsimile]

Harold W. Andersen World-Herald Square

President • Omaha, Nebraska 68102

(402) 444-1000

December 16, 1977

Mr. Jack C. Landau

Reporters Committee for Freedom of the Press

Room 1112

1750 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

Dear Mr. Landau :

You asked for my opinions about the problems of pub-
lishers who are faced with court orders that infringe on