author: Mr. Justice White

text:
    SUPREME COURT OF VIRGINIA et al. v. CONSUMERS UNION OF THE UNITED STATES, INC., et al.
    No. 79-198.
    Argued February 19, 1980
    Decided June 2, 1980

      White, J., delivered the opinion of the Court, in which all other Members joined, except Powell, J., who took no part in the consideration or decision of the case.

      Marshall Coleman, Attorney General of Virginia, argued the cause for appellants. With him on the briefs were Walter H. Ryland, Chief Deputy Attorney General, and Philip B. Kurland.

      Ellen Broadman argued the cause for appellees. With her on the brief were Alan Mark Silbergeld, James W. Benton, Jr., and Michael Pollet.

        Burt Neubome, Bruce J. Ennis, Jr., and Stephen Bricker filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance.

   Mr. Justice White

delivered the opinion of the Court.

This case raises questions of whether the Supreme Court of Virginia (Virginia Court) and its chief justice are officially immune from suit in an action brought under 42 U. S. C.

§ 1983 challenging the Virginia Court’s disciplinary rules governing the conduct of attorneys and whether attorney’s fees were properly awarded under the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U. S. C. § 1988, against the Virginia Court and its chief justice in his official capacity.

I

It will prove helpful at the outset to describe the role of the Virginia Court in regulating and disciplining attorneys. The Virginia Court has firmly held to the view that it has inherent authority to regulate and discipline attorneys. Button v. Day, 204 Va. 547, 552-555, 132 S. E. 2d 292, 295-298 (1963). It also has statutory authority to do so. Section 54-48 of the Code of Virginia (1978) authorizes the Virginia Court to “promulgate and amend rules and regulations . . . [p]rescribing a code of ethics governing the professional conduct of attorneys-at-law. ...”

Pursuant to these powers, the Virginia Court promulgated the Virginia Code of Professional Responsibility (State Bar Code, Bar Code, or Code), the provisions of which were substantially identical to the American Bar Association’s Code of Professional Responsibility. Section 5A-48 provides no standards for the Virginia Court to follow in regulating attorneys; it is apparent that insofar as the substantive content of such a code is concerned, the State has vested in the court virtually its entire legislative or regulatory power over the legal profession.

Section 54-48 also authorizes the Virginia Court to prescribe “procedure for disciplining, suspending and disbarring attorneys-at-law” ; and § 54^49 authorizes the court to promulgate rules and regulations “organizing and governing the association known as the Virginia State Bar, composed of the attorneys-at-law of this State, to act as an administrative agency of the Court for the purpose of investigating and reporting ... violation [s]....” Acting under this authority, the Virginia State Bar (State Bar or Bar) has been organized and its enforcement role vested in an ethics committee and in various district committees. Section 54-51 reserves to the courts the sole power to adjudicate alleged violations of the Bar Code, and hence the role of the State Bar is limited to the investigation of violations and the filing of appropriate complaints in.the proper courts. Under § 54-74, the enforcement procedure involves the filing of a complaint in a court of record, the issuance of a rule to show cause against the charged attorney, the prosecution of the case by the commonwealth attorney, and the hearing of the case by the judge issuing the rule together with two other judges designated by the chief justice of the Virginia Supreme Court. Appeal lies to the Virginia Supreme Court.

The courts of Virginia, including the Supreme Court, thus play an adjudicative role in enforcing the Bar Code similar to their function in enforcing any statute adopted by the Virginia Legislature and similar or identical to the role they would play had the Bar Code been adopted by the state legislature.

The Virginia Court, however, has additional enforcement power. As we have said, it asserts inherent power to discipline attorneys. Also, § 54-74 expressly provides that if the Virginia Court or any other court of record observes any act of unprofessional conduct, it may itself, without any complaint being filed by the State Bar or by any third party, issue a rule to show cause against the offending attorney. Although once the rule issues, such cases would be prosecuted by the commonwealth attorney, it is apparent that the Virginia Court and other courts in Virginia have enforcement authority beyond that of adjudicating complaints filed by others and beyond the normal authority of the courts to punish attorneys for contempt.

II

This case arose when, in 1974, one of the appellees, Consumers Union of the United States, Inc. (Consumers Union), sought to prepare a legal services directory designed to assist consumers in making informed decisions concerning utilization of legal services. Consumers Union sought to canvass all attorneys practicing law in Arlington County, Va., asking for information concerning each attorney’s education, legal activities, areas of specialization, office location, fee and billing practices, business and professional affiliations, and client relations. However, it encountered difficulty because lawyers declined to supply the requested information for fear of violating the Bar Code’s strict prohibition against attorney advertising. Rule 2-102 (A) (6) of the Code prohibited lawyers from being included in legal directories listing the kind of legal information that Consumers Union sought to publish.

On February 27, 1975, Consumers Union and the Virginia Citizens Consumer Council brought an action pursuant to 42 U. S. C. § 1983 against the Virginia Court, the Virginia State Bar, the American Bar Association, and, in both their individual and official capacities, the chief justice of the Virginia Court, the president of the State Bar, and the chairman of the State Bar’s Legal Ethics Committee. With respect to the Virginia Court, the complaint identified its chief justice and alleged only that the court had promulgated the Bar Code. The other defendants were alleged to have authority to enforce the Code. Plaintiffs sought a declaration that defendants had violated their First and Fourteenth Amendment rights to gather, publish, and receive factual, information concerning attorneys practicing in Arlington County, and a permanent injunction against the enforcement and operation of DR 2-102 (A)(6).

A three-judge District Court was convened pursuant to 28 U. S. C. § 2281 (1970 ed.). Defendants moved for indefinite continuance of the trial on the grounds that the ABA and the State Bar were preparing amendments to relax the advertising prohibitions contained in DR 2-102 (A)(6). Over plaintiff-appellees’ opposition, the District Court granted defendants a continuance until March 25,1976.

On February 17, 1976, the ABA adopted amendments to its Code of Professional Responsibility which would permit attorneys to advertise office hours, initial consultation fees, and credit arrangements. Defendants then sought and obtained a further continuance to permit the Virginia Court and the State Bar to consider amending the State Bar Code to conform to the ABA amendments. Although the governing body of the State Bar recommended that the Virginia Court adopt the ABA amendments to DR 2-102, on April 20, 1976, the court declined to adopt the amendments on the . ground that they would “not serve the best interests of the public or the legal profession.”

The action then proceeded to trial on May 17, 1976, and was decided on December 17, 1976. Consumers Union of United States, Inc. v. American Bar Assn., 427 F. Supp. 506 (ED Va. 1976). The three-judge District Court concluded that abstention would be inappropriate in light of defendants’ failure to amend the State Bar Code despite continuances based on the speculation that DR 2-102 (A) (6) would be relaxed. Id., at 513-516. The court declared that DR 2-102 (A)(6) unconstitutionally restricted the right of plaintiff-appellees to receive and gather nonfee information and information concerning initial consultation fees. Defendants were permanently enjoined from enforcing DR 2-102 (A) (6) save for its prohibition against advertising fees for services other than the initial consultation fee. Id., at 523.

Plaintiff-appellees appealed to this Court, challenging the District Court’s refusal to enjoin enforcement of the prohibition of fee advertising. Defendants brought a cross-appeal, arguing that DR 2-102 (A) (6) should have been upheld in its entirety. While these appeals were pending, we decided Bates v. State Bar of Arizona, 433 U. S. 350 (1977), in which we held that enforcement of a ban on attorney advertising would violate the First and Fourteenth Amendment rights of attorneys seeking to advertise the fees they charged for certain routine legal services. In light of Bates, the judgment below was vacated and the case was remanded for further consideration. 433 U. S. 917 (1977).

On remand, defendants agreed that in light of Bates DR 2-102 (A) (6) could not constitutionally be enforced to prohibit attorneys from providing plaintiff-appellees with any of the information they sought to publish in their legal services directory. Defendants proposed that a permanent injunction be entered barring them from enforcing DR 2-102 (A)(6) against attorneys providing plaintiff-appellees with information. On May 8, 1979, the District Court declared DR 2-102 (A) (6) unconstitutional on its face and permanently enjoined defendants from enforcing it.

Plaintiff-appellees also moved for costs, including an award of attorney’s fees pursuant to the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U. S. C. § 1988. The defendants objected to any fee award on various grounds, including judicial immunity. They did not object to their paying other costs. Although holding the individual defendants immune from attorney’s fees liability in their individual capacities, the District Court held that the Act authorized in proper circumstances the award of fees against the State Bar, the Virginia Court and the individual defendants in their official capacities. Consumers Union of United States, Inc. v. American Bar Assn., 470 F. Supp. 1055, 1059-1061 (ED Va. 1979).

The District Court went on to conclude that special circumstances made it unjust to award attorney’s fees against the State Bar or against the State Bar officers in their official capacities because it was not these defendants but the Virginia Court that had the power to change the State Bar disciplinary rules and because the State Bar and its officers had unsuccessfully sought to persuade the court to amend the Code to conform to what they deemed to be constitutional standards. There were no similar circumstances making it unjust to award attorney’s fees against the Virginia Court and its chief justice in his official capacity. This was because the court had denied the State Bar’s petition to amend the Code to conform to what were deemed to be the requirements of Bigelow v. Virginia, 421 U. S. 809 (1975), and had also failed to amend the Code to conform to the holding in Bates v. State Bar of Arizona, supra. Hence, “[i]t would hardly be unjust to order the Supreme Court of Virginia defendants to pay plaintiffs reasonable attorneys fees in light of their continued failure and apparent refusal to amend [the Code] to conform with constitutional requirements.” 470 F. Supp., at 1063. The parties were directed to attempt to reach an agreement on a reasonable sum, failing which the court would determine the fee.

On May 23, 1979, defendants filed a petition for rehearing, arguing for the first time, on judicial immunity grounds, that the Virginia Court and its chief justice were exempt from having declaratory and injunctive relief entered against them. It was also argued that in any event it was an abuse of discretion to enter the fee award against the Virginia Court and its chief justice.

Following denial of rehearing, the Virginia Court and its chief justice appealed, presenting the following questions:

1. Is the Supreme Court of Virginia immune from judgment under the doctrine of judicial immunity?
2. May the Civil Rights Attorney’s Fees Awards Act of 1976 be construed to permit an award of attorneys’ fees against the Supreme Court of Virginia for its judicial acts?
3. Does the doctrine of judicial immunity preclude the award of attorneys’ fees for failure to correct a challenged judicial act which is the subject of litigation?
4. On the facts before it, did the District Court abuse its discretion in awarding fees against'the Virginia Court?

Appellees moved to dismiss or affirm, the motion to dismiss urging that the claim of judicial immunity from declaratory or injunctive relief was not properly before the Court because it had not been timely raised in the District Court and had therefore been waived. We noted probable jurisdiction, 444 U. S. 914(1979).

Ill

Title 42 U. S. C. § 1988, as amended by the Civil Rights Attorney’s Fees Awards Act of 1976, 90 Stat. 2641, provides in pertinent part:

“In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.”

The District Court held that in light of the § 1983 judgment that had been entered in favor of appellees, the Act authorized an award of attorney’s fees against appellants. Appellants urge that this was error. Their primary contention is that on the grounds of absolute legislative or judicial immunity they should have been excluded from the judgment below and also from liability for attorney’s fees. Appellees on the other hand assert that neither judicial nor legislative immunity immunized these defendants from declaratory or injunctive relief as distinguished from a damages award; and in any event they insist that the judgment stand against these defendants because the Virginia Court itself shares direct enforcement authority with the State Bar and hence is subject to prospective judgments just as other enforcement officials are.

A

Appellees sought declaratory and injunctive relief with respect to particular provisions of the State Bar Code propounded by the Virginia Court. Although it is clear that under Virginia law the issuance of the Bar Code was a proper function of the Virginia Court, propounding the Code was not an act of adjudication but one of rulemaking. The District Court below referred to the issuance of the Code as a judicial function, but this is not conclusive upon us for the purpose of deciding whether issuance of the Code is a judicial act entitled to immunity under § 1983. Judge Warriner, dissenting in the District Court, agreed with a prior District Court holding in Hirschkop v. Virginia State Bar, 421 F. Supp. 1137, 1156 (ED Va. 1976), rev’d in part on other grounds sub nom. Hirschkop v. Snead, 594 F. 2d 356 (CA4 1979), that in promulgating disciplinary rules the Virginia Supreme Court acted in a legislative capacity. Judge Warriner said:

“Disciplinary rules are rules of general application and are statutory in character. They act not on parties litigant but on all those who practice law in Virginia. They do not arise out of a controversy which must be adjudicated, but instead out of a need to regulate conduct for the protection of all citizens. It is evident that, in enacting disciplinary rules, the Supreme Court of Virginia is constituted a legislature.” 470 F. Supp., at 1064.

We agree with this analysis and hence must inquire whether the Virginia Court and its chief justice are immune from suit for acts performed in their legislative capacity.

We have already decided that the Speech or Debate Clause immunizes Congressmen from suits for either prospective relief or damages. Eastland v. United States Servicemen’s Fund, 421 U. S. 491, 502-503 (1975). The purpose of this immunity is to insure that the legislative function may be performed independently without fear of outside interference. Ibid. To preserve legislative independence, we have concluded that “legislators engaged ‘in the sphere of legitimate legislative activity,' Tenney v. Brandhove, [341 U. S. 367, 376 (1951)], should be protected not only from the consequences of litigation’s results but also from the burden of defending themselves.” Dombrowski v. Eastland, 387 U. S. 82, 85 (1967).

We have also recognized that state legislators enjoy common-law immunity from liability for their legislative acts, an immunity that is similar in origin and rationale to that accorded Congressmen under the Speech or Debate Clause. Tenney v. Brandhove, 341 U. S. 367 (1951). In Tenney we concluded that Congress did not intend § 1983 to abrogate the common-law immunity of state legislators. Although Tenney involved an action for damages under § 1983, its holding is equally applicable to § 1983 actions seeking declaratory or injunctive relief. In holding that § 1983 “does not create civil liability” for acts unknown “in a field where legislators traditionally have power to act/’ id., at 379, we did not distinguish between actions for damages and those for prospective relief. Indeed, we have recognized elsewhere that “a private civil action, whether for an injunction or damages, creates a distraction and forces [legislators] to divert their time, energy, and attention from their legislative tasks to defend the litigation.” Eastland v. United States Servicemen’s Fund, supra, at 503. Although the separation-of-powers doctrine justifies a broader privilege for Congressmen than for state legislators in criminal actions, United States v. Gillock, 445 U. S. 360 (1980), we generally have equated the legislative immunity to which state legislators are entitled under § 1983 to that accorded Congressmen under the Constitution. Eastland v. United States Servicemen’s Fund, supra, at 502-503, 505, 506; Dombrowski v. Eastland, supra, at 84-85; United States v. Johnson, 383 U. S. 169, 180 (1966); Tenney v. Brandhove, supra, at 377-379. Thus, there is little doubt that if the Virginia Legislature had enacted the State Bar Code and if suit had been brought against the legislature, its committees, or members for refusing to amend the Code in the wake of our cases indicating that the Code in some respects would be held invalid, the defendants in that suit could successfully have sought dismissal on the grounds of absolute legislative immunity.

Appellees submit that whatever may be true of state legislators, the Virginia Court and its members should not be accorded the same immunity where they are merely exercising a delegated power to malee rules in the same manner that many executive and agency officials wield authority to make rules in a wide variety of circumstances. All of such officials, it is urged, are not absolutely immune from civil suit. As much could be conceded, but it would not follow that, as appellees would have it, in no circumstances do those who exercise delegated legislative power enjoy legislative immunity. In any event, in this case the Virginia Court claims inherent power to regulate the Bar, and as the dissenting judge below indicated, the Virginia Court is exercising the State’s entire legislative power with respect to regulating the Bar, and its members are the State’s legislators for the purpose of issuing the Bar Code. Thus the Virginia Court and its members are immune from suit when acting in their legislative capacity.

B

If the sole basis for appellees’ § 1983 action against the Virginia Court and its chief justice were the issuance of, or failure to amend, the challenged rules, legislative immunity would foreclose suit against appellants. As has been pointed out, however, the Virginia Court performs more than a legislative role with respect to the State Bar Code. It also hears appeals from lower court decisions in disciplinary cases, a traditional adjudicative task; and in addition, it has independent enforcement authority of its own.

Adhering to the doctrine of Bradley v. Fisher, 13 Wall. 335 (1872), we have held that judges defending against § 1983 actions enjoy absolute immunity from damages liability for acts performed in their judicial capacities. Pierson v. Ray, 386 U. S. 547 (1967); Stump v. Sparkman, 435 U. S. 349 (1978). However, we have never held that judicial immunity absolutely insulates judges from declaratory or injunctive relief with respect to their judicial acts. The Courts of Appeals appear to be divided on the question whether judicial immunity bars declaratory or injunctive relief; we have not addressed the question.

We need not decide whether judicial immunity would bar prospective relief, for we believe that the Virginia Court and its chief justice properly were held liable in their enforcement capacities. As already indicated, § 54-74 gives the Virginia Court independent authority of its own to initiate proceedings against attorneys. For this reason the Virginia Court and its members were proper defendants in a suit for declaratory and injunctive relief, just as other enforcement officers and agencies were.

Prosecutors enjoy absolute immunity from damages liability, Imbler v. Pachtman, 424 U. S. 409 (1976), but they are natural targets for § 1983 injunctive suits since they are the state officers who are threatening to enforce and who are enforcing the law. Gerstein v. Pugh, 420 U. S. 103 (1975), is only one of a myriad of such cases since Ex parte Young, 209 U. S. 123 (1908), decided that suits against state officials in federal courts are not barred by thé Eleventh Amendment. If prosecutors and law enforcement personnel cannot be proceeded against for declaratory relief, putative plaintiffs would have to await the institution of state-court proceedings against them in order to assert their federal constitutional claims. This is not the way the law has developed, and, because of its own inherent and statutory enforcement powers, immunity does not shield the Virginia Court and its chief justice from suit in this case.

IV

Because appellees properly prevailed in their § 1983 action, the Civil Rights Attorney’s Fees Awards Act, 42 U. S. C. § 1988, authorized the District Court, “in its discretion,” to award them “a reasonable attorney’s fee,” which may be recovered from state officials sued in their official capacities. Hutto v. Finney, 437 U. S. 678, 694 (1978). Applying the standard of Newman v. Piggie Park Enterprises, 390 U. S. 400, 402 (1968), the District Court indicated that attorney’s fees should ordinarily be awarded 'unless special circumstances would render such an award unjust.’ ” 470 F. Supp., at 1061. Accordingly, enforcement authorities against whom § 1983 judgments have been entered would ordinarily be charged with attorney’s fees. The District Court nevertheless considered it unjust to require the State Bar defendants to pay attorney’s fees because they had recommended that the State Bar Code be amended to conform to what the Bar thought our cases required and because the Virginia Court declined or failed to adopt this proposal. No similar circumstances excused the Virginia Court, the court held, for it was the very authority that had propounded and failed to amend the challenged provisions of the Bar Code.

We are unable to agree that attorney’s fees should have been awarded for the reasons relied on by the District Court. Although the Virginia Court and its chief justice were subject to suit in their direct enforcement role, they were immune in their legislative roles. Yet the District Court’s award of attorney’s fees in this case was premised on acts or omissions for which appellants enjoyed absolute legislative immunity. This was error.

We held in Hutto v. Finney, supra, that Congress intended to waive whatever Eleventh Amendment immunity would otherwise bar an award of attorney’s fees against state officers, but our holding was based on express legislative history indicating that Congress intended the Act to abrogate Eleventh Amendment immunity. There is no similar indication in the legislative history of the Act to suggest that Congress intended to permit an award of attorney’s fees to be premised on acts for which defendants would enjoy absolute legislative immunity. The House Committee Report on the Act indicates that Congress intended to permit attorney’s fees awards in cases in which prospective relief was properly awarded against defendants who would be immune from damages awards, H. R. Rep. No. 94^1558, p. 9 (1976), but there is no indication that Congress intended to permit an award of attorney’s fees to be premised on acts that themselves would be insulated from even prospective relief. Because the Virginia Court is immune from suit with respect to its legislative functions, it runs counter to that immunity for a district court’s discretion in allowing fees to be guided by considerations centering on the exercise or nonexercise of the state court’s legislative powers.

This is not to say that absent some special circumstances in addition to what is disclosed in this record, a fee award should not have been made in this case. We are not convinced that it would be unfair to award fees against the State Bar, which by statute is designated as an administrative agency to help enforce the State Bar Code. Fee awards against enforcement officials are run-of-the-mill occurrences, even though, on occasion, had a state legislature acted or reacted in a different or more timely manner, there would have been no need for a lawsuit or for an injunction. Nor would we disagree had the District Court awarded fees not only against the Bar but also against the Virginia Court because of its own direct enforcement role. However, we hold that it was an abuse of discretion to award fees because the Virginia Court failed to exercise its rulemaking authority in a manner that satisfied the District Court. We therefore vacate the award of attorney’s fees and remand for further proceedings consistent with this opinion.

It is so ordered.

Mr. Justice Powell took no part in the consideration or decision of this case.

       “§ 54-48. Rules and regulations defining practice of law and prescribing procedure for practice by law students, codes of ethics and disciplinary procedure. — The Supreme Court may, from time to time, prescribe, adopt, promulgate and amend rules and regulations:
      “(a) Defining the practice of law.
      “(al) Prescribing procedure for limited practice of law by third-year law students.
      “(b) Prescribing a code of ethics governing the professional conduct of attomeys-at-law including the practice of law or patent law through professional law corporations, professional associations and partnerships, and a code of judicial ethics.
      “(e) Prescribing procedure for disciplining, suspending, and disbarring attomeys-at-law.”

       “§ 54r-49. Organization and government of Virginia State Bar. — The Supreme Court may, from time to time, prescribe, adopt, promulgate and amend rules and regulations organizing and governing the association known as the Virginia State Bar, composed of the attorneys-at-law of this State, to act as an administrative agency of the Court for the purpose of investigating and reporting the violation of such rules and regulations as are adopted by the Court under this article for such proceedings as may be necessary, and requiring all persons practicing law in this State to be members thereof in good standing.”

       “§ 54r-51. Restrictions as to rules and regulations. — Notwithstanding the foregoing provisions of this article, the Supreme Court shall not adopt or promulgate rules or regulations prescribing a code of ethics governing the professional conduct of attomeys-at-law, which shall be inconsistent with any statute; nor shall it adopt or promulgate any rule or regulation of method of procedure which shall eliminate the jurisdiction of the Courts to deal with the discipline of attorneys-at-law as provided by law; and in no case shall an attorney, who demands to be tried by a court of competent jurisdiction for the violation of any rule or regulation adopted under this article be tried in any other manner.”

       “§54-74. Procedure for suspension or revocation of license. — (1) Issuance of rule. — If the Supreme Court of Virginia, or any court of record of this State, observes, or if complaint, verified by affidavit, be made by any person to such court of any malpractice or of any unlawful or dishonest or unworthy'or corrupt or unprofessional conduct on the part of any attorney, or that any person practicing law is not duly licensed to practice in this State, such court shall, if it deems the case a proper one for such action, issue a rule against such attorney or other person to show cause why his license to practice law shall not be revoked or suspended. If the complaint, verified by affidavit, be made by a District Committee of the Virginia State Bar, such court shall issue a rule against such attorney to show cause why his license to practice law shall not be revoked or suspended.
      “(2) Judges hearing case. — At the time such rule is issued the court issuing the same shall certify the fact of such issuance and the time and place of the hearing thereon, to the chief justice of the Supreme Court of Virginia, who shall designate two judges, other than the judge of the court issuing the rule, of circuit courts or courts of record of cities of the first class to hear and decide the ease in conjunction with the judge issuing the rule, which such two judges shall receive as compensation ten dollars per day and necessary expenses while actually engaged in the performance of their duties, to be paid out of the State treasury, from the appropriation for criminal charges.
      “(3) Duty of Commonwealth’s attorney. — It shall be the duty of the attorney for the Commonwealth for the county or city in which such case is pending to appear at the hearing and prosecute the case.
      “(4) Action of court. — Upon the hearing, if the defendant be found guilty by the court, his license to practice law in this State shall be revoked, or suspended for such time as the court may prescribe; provided, that the court, in lieu of revocation or suspension, may, in its discretion, reprimand such attorney.
      “(5) Appeal. — The person or persons making the complaint or the defendant, may, as of right, appeal from the judgment of the court to the Supreme Court of Virginia, by petition based upon a true transcript of the record, which shall be made up and certified as in actions at law. In all such cases where a defendant's license to practice law has been revoked by the judgment of the court, his privilege to practice law shall be suspended pending appeal.”
      Effective July 1, 1981, the judge issuing the rule to show cause will not participate in disciplinary cases, which are to be heard by three judges designated by the chief justice from any circuit other than the one in which the case is pending.

       At the time Consumers Union sought to canvass Virginia attorneys, Disciplinary Rule 2-102 (A) of the State Bar Code provided in pertinent part: “A lawyer or law firm shall not use professional cards, professional announcement cards, office signs, letterheads, telephone directory listings, law lists, legal directory listings, or similar professional notices or devices, except that the following may be used if they are in dignified form:

      (6) A listing in a reputable law list or legal directory giving brief biographical and other informative data. . . . The published data may include only the following: name, including name of law firm and names of professional associates; addresses and telephone numbers; one or more fields of law in which the lawyer or law firm concentrates; a statement that practice is limited to one or more fields of law; a statement that the lawyer or law firm specializes in a particular field of law or law practice . . . ; date and place of birth; date and place of admission to the bar of state and federal courts; schools attended, with dates of graduation, degrees, and other scholastic distinctions; public or quasi-public offices; military service; posts of honor; legal authorships; legal teaching positions; memberships, offices, committee assignments, and section memberships in bar associations; memberships and offices in legal fraternities and legal societies; technical and professional associations and societies; foreign language ability; names and addresses of references, and, with their consent, names of clients regularly represented.”

       The District Court’s final order provided in pertinent part:
      “1. The publication described in plaintiff’s complaint, as amended, is declared valid and constitutionally protected;
      “2. The Virginia Code of Professional Responsibility Disciplinary Rule 2-102 (A) (6) is declared unconstitutional on its face;
      “3. The defendants, their successors in office, their agents and attorneys and all acting in concert therewith are permanently enjoined from enforcement of Virginia Code of Professional Responsibility Disciplinary Rule 2-102 (A) (6).”

       The Civil Rights Attorney’s Fees Awards Act was enacted into law on October 19, 1976, five months after the trial in this action and two months before the District Court’s initial decision. The Act is applicable in this case because Congress intended for the Act to apply to actions that were pending when the Act was passed. Hutto v. Finney, 437 U. S. 678, 694-695, n. 23 (1978).

       Judge Warriner dissented on the grounds that legislative immunity barred an award of attorney’s fees and that it would be unjust to award attorney’s fees against a state supreme court in the absence of a showing of bad faith. 470 F. Supp., at 1063.

       As indicated in the text, the motion to dismiss the appeal rested on the failure of appellants to have raised the immunity issue at an earlier time. We noted probable jurisdiction, and appellees’ brief on the merits has not again urged that the claim of immunity was not timely raised either with respect to the fee question alone or with respect to the entry of prospective relief against the Virginia Court and its chief justice. Their arguments, like those of appellants, are centered on the issues of judicial and legislative immunity.

       This seems to be the view of the Court of Appeals for the Second Circuit in its recent holding in Star Distributors, Ltd. v. Marino, 613 F. 2d 4 (1980). That court held that the legislative immunity enjoyed by the members of a state legislative committee bars an action for declaratory and injunctive relief just as it bars an action for damages. Understanding that Tenney was based on the similarity between common-law immunity and the Speech or Debate Clause, the Second Circuit reasoned that legislative immunity should protect state legislators in a manner similar to the protection afforded Congressmen. The Courts of Appeals for the Fifth and Eighth Circuits have dismissed on immunity grounds suits seeking both damages and injunctive relief but without separately addressing the issue of immunity from prospective relief. Safety Harbor v. Birchfield, 529 F. 2d 1251 (CA5 1976); Smith v. Klecker, 554 F. 2d 848 (CA8 1977); Green v. DeCamp, 612 F. 2d 368 (CA8 1980). The Court of Appeals for the Fourth Circuit, however, takes the contrary view and rejects the notion that the legislative immunity enjoyed by state officials bars suits for prospective relief. Jordan v. Hutcheson, 323 F. 2d 597 (1963); Eslinger v. Thomas, 476 F. 2d 225, 230 (1973). Both opinions of the Court of Appeals for the Fourth Circuit, however, were rendered prior to this Court’s decision in Eastland v. United States Servicemen’s Fund, 421 U. S. 491 (1975). The Court of Appeals for the Ninth Circuit may have a similar view with respect to the immunity enjoyed by officials of a regional body exercising both legislative and executive powers. Jacobson v. Tahoe Regional Planning Agency, 566 F. 2d 1353 (1977).

       Contrary to appellees’ suggestion, we do not view Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U. S. 391 (1979), as indicating our approval of injunctive relief against a regional legislative body or its officers. No injunctive relief had been awarded when Lake Country Estates reached this Court. Although it is not entirely clear, the Court of Appeals in that case seemed to believe that immunity would not bar a suit for equitable relief against officials of the Tahoe Regional Planning Agency (TRPA). The court did not specify whether equitable relief could be founded on acts for which the officials would otherwise enjoy legislative immunity, and this Court did not have occasion to express any view on this question because the TRPA never challenged this aspect of the Court of Appeals’ decision. We simply affirmed the Court of Appeals’ holding that TRPA officials could not be held liable in damages for their legislative acts.

       Of course, legislators sued for enacting a state bar code might also succeed in obtaining dismissals at the outset on grounds other than legislative immunity, such as the lack of a case or controversy.

       The Courts of Appeals for the Second, Fourth, and Seventh Circuits are of the view that judicial immunity does not extend to declaratory and injunctive relief. Heimbach v. Village of Lyons, 597 F. 2d 344, 347 (CA2 1979); Timmerman v. Brown, 528 F. 2d 811, 814 (CA4 1975); Fowler v. Alexander, 478 F. 2d 694, 696 (CA4 1973); Harris v. Harvey, 605 F. 2d 330, 335, n. 7 (CA7 1979); Hansen v. Ahlgrimm, 520 F. 2d 768, 769 (CA7 1975); Jacobson v. Schaefer, 441 F. 2d 127, 130 (CA7 1971). Three other Courts of Appeals, the Eighth, Ninth, and District of Columbia Circuits seem to agree. Kelsey v. Fitzgerald, 574 F. 2d 443, 444 (CA8 1978); Williams v. Williams, 532 F. 2d 120, 121-122 (CA8 1976); Shipp v. Todd, 568 F. 2d 133, 134 (CA9 1978); Briggs v. Goodwin, 186 U. S. App. D. C. 179, 184, n. 4, 569 F. 2d 10, 15, n. 4 (1977). It is rare, however, that any kind of relief has been entered against judges in actions brought under § 1983 and seeking to restrain or otherwise control or affect the future performance of their adjudicative role. Such suits have been recurringly dismissed for a variety of reasons other than immunity. Hence, the question of awarding attorney's fees against judges will not often arise.

       Although we did not address the issue, a state judge was among the defendants in Mitchum v. Foster, 407 U. S. 225 (1972), where the Court held that § 1983 served to pierce the shield of 28 U. S. C. § 2283 against a federal court enjoining state-court proceedings. The Court did say, quoting from Ex parte Virginia, 100 U. S. 339, 346 (1880), to this effect, that § 1983 was designed to enforce the provisions of the Fourteenth Amendment against all state action, whether that action be executive, legislative, or judicial. The Court also noted that the proponents of § 1983 at the time it was enacted insisted that state courts were being used to harass and injure citizens, perhaps because they were powerless to stop deprivations or were in league with those who were bent upon abrogating federally-protected rights. 407 U. S., at 242.
      In Boyle v. Landry, 401 U. S. 77 (1971), and O’Shea v. Littleton, 414 U. S. 488 (1974), lower courts had entered injunctions against state officials including state-court judges. In each case, we reversed on the grounds that no case or controversy had been made out against any of the appellants in this Court; and in O’Shea, we concluded that even assuming that there was a case or controversy, insufficient grounds for equitable relief had been presented. We did not suggest, however, that judges were immune from suit in their judicial capacity.

        Gerstein v. Pugh, 420 U. S. 103 (1975), involved a judgment against state-court judges and a prosecuting official declaring unconstitutional and enjoining the enforcement of certain state statutes. The prosecutor brought the case to this Court. We affirmed the declaration that the Florida procedures at issue were unconstitutional and held that Younger v. Harris, 401 U. S. 37 (1971), did not bar injunctive relief in the circumstances of the case. No issue of absolute immunity was raised or addressed.

       Of course, as Boyle v. Landry, supra, and O’Shea v. Littleton, supra, indicate, mere enforcement authority does not create a case or controversy with the enforcement official; but in the circumstances of this case, a sufficiently concrete dispute is as well made out against the Virginia Court as an enforcer as against the State Bar itself. See Person v. Association of the Bar of New York, 554 F. 2d 534, 536-537 (CA2 1977).

       Although appellants argued below that the Virginia Court as an entity is not a "person” suable under § 1983, they have not raised this issue before this Court. In any event, prospective relief was properly awarded against the chief justice in his official capacity; and absent a valid claim of immunity, the question remains whether the District Court’s award of attorney’s fees was proper. Although we would not have appellate jurisdiction under 28 U. S. C. § 1253 to decide the attorney’s fees question had it alone been appealed, because the case is properly here on the § 1983 issue we have jurisdiction to decide the attorney’s fees issue. Cf. Rosado v. Wyman, 397 U. S. 397, 404-405 (1970).

       The District Court derived this standard from the Senate Committee Report on the Civil Rights Attorney’s Fees Awards Act, which stated:
      “It is intended that the standards for awarding fees be generally the same as under the fee provisions of the 1964 Civil Rights Act. A party seeking to enforce the rights protected by the statutes covered by [the Act], if successful, ‘should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.’ Newman v. Piggie Park Enterprises, Inc., 390 U. S. 400, 402 (1968).” S. Rep. No. 94-1011, p. 4 (1976).


source: Caselaw Access Project

author: Me. Justice Marshall

license: Public Domain

text:
    WALKER v. ARMCO STEEL CORP.
    No. 78-1862.
    Argued January 8, 1980
    Decided June 2, 1980

      Mabshall, J., delivered the opinion for a unanimous Court.

      Don Manners argued the cause and filed a brief for petitioner.

      Jay M. Galt argued the cause and filed a brief for respondent.
   Me. Justice Marshall

delivered the opinion of the Court.

This case presents the issue whether in a diversity action the federal court should follow state law or, alternatively, Rule 3 of the Federal Rules of Civil Procedure in determining when an action is commenced for the purpose of tolling the state statute of limitations.

I

According to the allegations of the complaint, petitioner, a carpenter, was injured on August 22, 1975, in Oklahoma City, Okla., while pounding a Sheffield nail into a cement wall. Respondent was the manufacturer of the nail. Petitioner claimed that the nail contained a defect which caused its head to shatter and strike him in the right eye, resulting in permanent injuries. The defect was allegedly caused by respondent’s negligence in manufacture and design.

Petitioner is a resident of Oklahoma, and respondent is a foreign corporation having its principal place of business in a State other than Oklahoma. Since there was diversity of citizenship, petitioner brought suit in the United States District Court for the Western District of Oklahoma. The complaint was filed on August 19, 1977. Although summons was issued that same day, service of process was not made on respondent’s authorized service agent until December 1, 1977. On January 5, 1978, respondent filed a motion to dismiss the complaint on the ground that the action was barred by the applicable Oklahoma statute of limitations. Although the complaint had been filed within the 2-year statute of limitations, Okla. Stat., Tit. 12, § 95 (1971), state law does not deem the action “commenced” for purposes of the statute of limitations until service of the summons on the defendant, Okla. Stat., Tit. 12, § 97 (1971). If the complaint is filed within the limitations period, however, the action is deemed to have commenced from that date of filing if the plaintiff serves the defendant within 60 days, even though that service may occur outside the limitations period. Ibid. In this case, service was not effectuated until long after this 60-day period had expired. Petitioner in his reply brief to the motion to dismiss admitted that his case would be foreclosed in state court, but he argued that Rule 3 of the Federal Rules of Civil Procedure governs the manner in which an action is commenced in federal court for all purposes, including the tolling of the state statute of limitations.

The District Court dismissed the complaint as barred by the Oklahoma statute of limitations. 452 F. Supp. 243 (1978). The court concluded that Okla. Stat., Tit. 12, § 97 (1971) was “an integral part of the Oklahoma statute of limitations,” 452 F. Supp., at 245, and therefore under Ragan v. Merchants Transfer & Warehouse Co., 337 U. S. 530 (1949), state law applied. The court rejected the argument that Ragan had been implicitly overruled in Hanna v. Plumer, 380 U. S. 460 (1965).

The United States Court of Appeals for the Tenth Circuit affirmed. 592 F. 2d 1133 (1979). That court concluded that Okla. Stat., Tit. 12, § 97 (1971), was in “direct conflict” with Rule 3. 592 P. 2d, at 1135. However; the Oklahoma statute was “indistinguishable” from the statute involved in Ragan, and the court felt itself “constrained” to follow Ragan. 592 F. 2d, at 1136.

We granted certiorari, 444 U. S. 823 (1979), because of a conflict among the Courts of Appeals. We now affirm.

II

The question whether state or federal law should apply on various issues arising in an action based on state law which has been brought in federal court under diversity of citizenship jurisdiction has troubled this Court for many years. In the landmark decision of Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), we overturned the rule expressed in Swift v. Tyson, 16 Pet. 1 (1842), that federal courts exercising diversity jurisdiction need not, in matters of “general jurisprudence,” apply the nonstatutory law of the State. The Court noted that “[diversity of citizenship jurisdiction was conferred in order to prevent apprehended discrimination in state courts against those not citizens of the State,” Erie R. Co. v. Tompkins, supra, at 74. The doctrine of Swift v. Tyson had led to the undesirable results of discrimination in favor of non-citizens, prevention of uniformity in the administration of state law, and forum shopping. 304 U. S., at 74-75. In response, we established the rule that “[e]xcept in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any [diversity] case is the law of the State,” id., at 78.

In Guaranty Trust Co. v. York, 326 U. S. 99 (1945), we addressed ourselves to “the narrow question whether, when no recovery could be had in a State court because the action is barred by the statute of limitations, a federal court in equity can take cognizance of the suit because there is diversity of citizenship between the parties,” id., at 107. The Court held that the Erie doctrine applied to suits in equity as well as to actions at law. In construing Erie we noted that “[i]n essence, the intent of that decision was to insure that, in all cases where a federal court is exercising jurisdiction solely because of the diversity of citizenship of the parties, the outcome of the litigation in the federal court should be substantially the same, so far as legal rules determine the outcome of a litigation, as it would be if tried in a State court.” 326 U. S., at 109. We concluded that the state statute of limitations should be applied. “Plainly enough, a statute that would completely bar recovery in a suit if brought in a State court bears on a State-created right vitally and not merely formally or negligibly. As to consequences that so intimately affect recovery or non-recovery a federal court in a diversity case should follow State law.” Id., at 110.

The decision in York led logically to our holding in Ragan v. Merchants Transfer & Warehouse Co., supra. In Ragan, the plaintiff had filed his complaint in federal court on September 4, 1945, pursuant to Rule 3 of the Federal Rules of Civil Procedure. The accident from which the claim arose had occurred on October 1, 1943. Service was made on the defendant on December 28, 1945. The applicable statute of limitations supplied by Kansas law was two years. Kansas had an additional statute which provided: “An action shall be deemed commenced within the meaning of [the statute of limitations], as to each defendant, at the date of the summons which is served on him. . . . An attempt to commence an action shall be deemed equivalent to the commencement thereof within the meaning of this article when the party faithfully, properly and diligently endeavors to procure a service; but such attempt must be followed by the first publication or service of the summons within sixty days.” Kan. Gen. Stat. § 60-308 (1935). The defendant moved for summary judgment on the ground that the Kansas statute of limitations barred the action since service had not been made within either the 2-year period or the 60-day period. It was conceded that had the case been brought in Kansas state court it would have been barred. Nonetheless, the District Court held that the statute had been tolled by the filing of the complaint. The Court of Appeals reversed because “the requirement of service of summons within the statutory period was an integral part of that state’s statute of limitations.” Ragan, 337 U. S., at 532.

We affirmed, relying on Ene and York. “We cannot give [the cause of action] longer life in the federal court than it would have had in the state court without adding something to the cause of action. We may not do' that consistently with Erie R. Co. v. Tompkins.” 337 U. S., at 533-534. We rejected the argument that Rule 3 of the Federal Rules of Civil Procedure governed the manner in which an action was commenced in federal court for purposes of tolling the state statute of limitations. Instead, we held that the service of summons statute controlled because it was an integral part of the state statute of limitations, and under York that statute of limitations was part of the state-law cause of action.

Ragan was not our last pronouncement in this difficult area, however. In 1965 we decided Hanna v. Plumer, 380 U. S. 460, holding that in a civil action where federal jurisdiction was based upon diversity of citizenship, Rule 4 (d)(1) of the Federal Rules of Civil Procedure, rather than state law, governed the manner in which process was served. Massachusetts law required in-hand service on an executor or administrator of an estate, whereas Rule 4 permits service by leaving copies of the summons and complaint at the defendant’s home with some person “of suitable age and discretion.” The Court noted that in the absence of a conflicting state procedure, the Federal Rule would plainly control, 380 U. S., at 465. We stated that the “outcome-determination” test of Erie and York had to be read with reference to the “twin aims” of Erie: “discouragement of forum-shopping and avoidance of inequitable administration of the laws.” 380 U. S., at 468. We determined that the choice between the state in-hand service rule and the Federal Rule “would be of scant, if any, relevance to the choice of a forum,” for the plaintiff “was not presented with a situation where application of the state rule would wholly bar recovery; rather, adherence to the state rule would have resulted only in altering the way in which process was served.” Id., at 469 (footnote omitted). This factor served to distinguish that case from York and Ragan. See 380 U. S., at 469, n. 10.

The Court in Hanna, however, pointed out “a more fundamental flaw” in the defendant’s argument in that case. Id., at 469. The Court concluded that the Erie doctrine was simply not the appropriate test of the validity and applicability of one of the Federal Rules of Civil Procedure:

“The Erie rule has never been invoked to void a Federal Rule. It is true that there have been cases where this Court had held applicable a state rule in the face of an argument that the situation was governed by one of the Federal Rules. But the holding of each such ease was not that Erie commanded displacement of a Federal Rule by an inconsistent state rule, but rather that the scope of the Federal Rule was not as broad as the losing party urged, and therefore, there being no Federal Rule which covered the point in dispute, Erie commanded the enforcement of state law.” 380 U. S., at 470.

The Court cited Ragan as one of the examples of this proposition, 380 U. S., at 470, n. 12. The Court explained that where the Federal Rule was clearly applicable, as in Hanna, the test was whether the Rule was within the scope of the Rules Enabling Act, 28 U. S. C. § 2072, and if so, within a constitutional grant of power such as the Necessary and Proper Clause of Art. I. 380 U. S., at 470-472.

Ill

The present case is indistinguishable from Ragan. The statutes in both cases require service of process to toll the statute of limitations, and in fact the predecessor to the Oklahoma statute in this case was derived from the predecessor to the Kansas statute in Ragan. See Dr. Koch Vegetable Tea Co. v. Davis, 48 Okla. 14, 22, 145 P. 337, 340 (1914). Here, as in Ragan, the complaint was filed in federal court under diversity jurisdiction within the 2-year statute of limitations, but service of process did not occur until after the 2-year period and the 60-day service period had run. In both cases the suit would concededly have been barred in the applicable state court, and in both instances the state service statute was held to be an integral part of the statute of limitations by the lower court more familiar than we with state law. Accordingly, as the Court of Appeals held below, the instant action is barred by the statute of limitations unless Ragan is no longer good law.

Petitioner argues that the analysis and holding of Ragan did not survive our decision in Hanna. Petitioner’s position is that Okla. Stat., Tit. 12, § 97 (1971), is in direct conflict with the Federal Rule. Under Hanna, petitioner contends, the appropriate question is whether Rule 3 is within the scope of the Rules Enabling Act and, if so, within the constitutional power of Congress. In petitioner’s view, the Federal Rule is to be applied unless it violates one of those two restrictions. This argument ignores both the force of stare decisis and the specific limitations that we carefully placed on the Hanna analysis.

We note at the outset that the doctrine of stare decisis weighs heavily against petitioner in this case. Petitioner seeks to have us overrule our decision in Ragan. Stare decisis does not mandate that earlier decisions be enshrined forever, of course, but it does counsel that we use caution in rejecting established law. In this case, the reasons petitioner asserts for overruling Ragan are the same factors which we concluded in Hanna did not undermine the validity of Ragan. A litigant who in effect asks us to reconsider not one but two prior decisions bears a heavy burden of supporting such a change in our jurisprudence. Petitioner here has not met that burden.

This Court in Hanna distinguished Ragan rather than overruled it, and for good reason. Application of the Hanna analysis is premised on a “direct collision” between the Federal Rule and the state law. 380 U. S., at 472. In Hanna itself the “clash” between Rule 4 (d) (1) and the state in-hand service requirement was “unavoidable.” 380 U. S., at 470. The first question must therefore be whether the scope of the Federal Rule in fact is sufficiently broad to control the issue before the Court. It is only if that question is answered affirmatively that the Hanna analysis applies.

As has already been noted, we recognized in Hanna that the present case is an instance where “the scope of the Federal Rule [is] not as broad as the losing party urge[s], and therefore, there being no Federal Rule which cover[s] the point in dispute, Erie command[s] the enforcement of state law.” Ibid. Rule 3 simply states that “[a] civil action is commenced by filing a complaint with the court.” There is no indication that the Rule was intended to toll a state statute of limitations, much less that it purported to displace state tolling rules for purposes of state statutes of limitations. In our view, in diversity actions Rule 3 governs the date from which various timing requirements of the Federal Rules begin to run, but does not affect state statutes of limitations. Cf. 4 C. Wright & A. Miller, Federal Practice and Procedure § 1057, pp. 190-191 (1969); id., § 1051, at 165-166.

In contrast to Rule 3, the Oklahoma statute is a statement of a substantive decision by that State that actual service on, and accordingly actual notice by, the defendant is an integral part of the several policies served by the statute of limitations. See C & C Tile Co. v. Independent School District No. 7 of Tulsa County, 503 P. 2d 554, 559 (Okla. 1972). The statute of limitations establishes a deadline after which the defendant may legitimately have peace of mind; it also recognizes that after a certain period of time it is unfair to require the defendant to attempt to piece together his defense to an old claim. A requirement of actual service promotes both of those functions of the statute. See generally ibid.; Seitz v. Jones, 370 P. 2d 300, 302 (Okla. 1961). See also Ely, The Irrepressible Myth of Erie, 87 Harv. L. Rev. 693, 730-731 (1974). It is these policy aspects which make the service requirement an “integral” part of the statute of limitations both in this case and in Ragan. As such, the service rule must be considered part and parcel of the statute of limitations. Rule 3 does not replace such policy determinations found in state law. Rule 3 and Okla. Stat., Tit. 12, § 97 (1971), can exist side by side, therefore, each controlling its own intended sphere of coverage without conflict.

Since there is no direct conflict between the Federal Rule and the state law, the Hanna analysis does not apply. Instead, the policies behind Erie and Ragan control the issue whether, in the absence of a federal rule directly on point, state service requirements which are an integral part of the state statute of limitations should control in an action based on state law which is filed in federal court under diversity jurisdiction. The reasons for the application of such a state service requirement in a diversity action in the absence of a conflicting federal rule are well explained in Erie and Ragan, see supra, at 744-746, and need not be repeated here. It is sufficient to note that although in this case failure to apply the state service law might not create any problem of forum shopping, the result would be an “inequitable administration” of the law. Hanna v. Plumer, 380 U. S., at 468. There is simply no reason why, in the absence of a controlling federal rule, an action based on state law which concededly would be barred in the state courts by the state statute of limitations should proceed through litigation to judgment in federal court solely because of the fortuity that there is diversity of citizenship between the litigants. The policies underlying diversity jurisdiction do not support such a distinction between state and federal plaintiffs, and Erie and its progeny do not permit it.

The judgment of the Court of Appeals is

Affirmed.

       The Court of Appeals stated that summons was issued the following day, August 20. See 592 F. 2d 1133, 1134 (CA10 1979). However, the docket sheet in the District Court indicates that summons was issued August 19. See App. insert preceding p. A-l. Nothing turns on this difference.

       The record does not indicate why this delay occurred. The face of the process record shows that the United States Marshal acknowledged receipt of the summons on December 1, 1977, and that service was effectuated that same day. Id., at A-5. At oral argument counsel for petitioner stated that the summons was found “in an unmarked folder in the filing cabinet” in counsel’s office some 90 days after the complaint had been filed. Tr. of Oral Arg. 3. See also id., at 6. Counsel conceded that the summons was not delivered to the Marshal until December 1. Id., at 3-4. It is unclear why the summons was placed in the filing cabinet. See id., at 17.

       Under Oklahoma law, a suit for products liability, whether based on a negligence theory or a breach of implied warranty theory, is governed by the 2-year statute of limitations period of Okla. Stat., Tit. 12, § 95 (1971). See Hester v. Purex Corp., 534 P. 2d 1306, 1308 (Okla. 1975); O’Neal v. Black & Decker Manufacturing Co., 523 P. 2d 614, 615 (Okla. 1974); Kirkland v. General Motors Corp., 521 P. 2d 1353, 1361 (Okla. 1974). The period begins to run from the date of injury. O’Neal v. Black & Decker Manufacturing Co., supra, at 615; Kirkland v. General Motors Corp., supra, at 1361.

       Oklahoma Stat., Tit. 12, §97 (1971), provides in pertinent part: “An action shall be deemed commenced, within the meaning of this article [the statute of limitations], as to each defendant, at the date of the summons which is served on him, or on a codefendant, who is a joint contractor or otherwise united in interest with him. ... An attempt to commence an action shall be deemed equivalent to the commencement thereof, within the meaning of this article, when the party faithfully, properly and diligently endeavors to procure a service; but such attempt must be followed by the first publication or service of the summons, . . . within sixty (60) days.”

       Petitioner also argued in his reply brief to the motion to dismiss that respondent should have relied on Federal Rule of Civil Procedure 41 — dismissal for failure to prosecute — rather than the state statute of limitations. Respondent in its response to the reply brief argued that a Rule 41 argument was implicit in its motion to dismiss. Neither the District Court nor the Court of Appeals addressed this issue.

       Compare case below; Rose v. K. K. Masutoku Toy Factory Co., 597 F. 2d 215 (CA10 1979); Lindsey v. Dayton-Hudson Corp., 592 F. 2d 1118, 1121-1123 (CA10), cert. denied, 444 U. S. 856 (1979); Witherow v. Firestone Tire & Rubber Co., 530 F. 2d 160, 163-166 (CA3 1976); Anderson v. Papillion, 445 F. 2d 841 (CA5 1971) (per curiam); Groninger v. Davison, 364 F. 2d 638 (CA8 1966); Sylvester v. Messler, 351 F. 2d 472 (CA6 1965) (per curiam), cert. denied, 382 U. S. 1011 (1966), all holding that state law controls, with Smith v. Peters, 482 F. 2d 799 (CA6 1973), cert. denied, 415 U. S. 989 (1974), and Sylvestri v. Warner & Swasey Co., 398 F. 2d 598 (CA2 1968), holding that Rule 3 controls. See also Ingram v. Kumar, 585 F. 2d 566, 568 (CA2 1978) (reaffirming Sylvestri), cert. denied, 440 U. S. 940 (1979); Prashar v. Volkswagen of America, Inc., 480 F. 2d 947 (CA8 1973) (distinguishing Ragan), cert. denied sub nom. Volkswagenwerk Aktiengesellschaft v. Prashar, 415 U. S. 994 (1974); Chappell v. Rouch, 448 F. 2d 446 (CA10 1971) (distinguishing Ragan). See generally Walko Corp. v. Burger Chef Systems, Inc., 180 U. S. App. D. C. 306, 308-311, 554 F. 2d 1165, 1167-1170 (1977) (dicta).

       The Court in Hanna noted that “this Court has never before been confronted with a case where the applicable Federal Rule is in direct collision with the law of the relevant State.” 380 U. S., at 472.

       Mr. Justice Harlan in his concurring opinion in Hanna concluded that Ragan was no longer good law. 380 U. S., at 474-478. See also Sylvestri v. Warner & Swasey Co., 398 F. 2d 598 (CA2 1968).

       This is not to suggest that the Federal Rules of Civil Procedure are to be narrowly construed in order to avoid a “direct collision” with state law. The Federal Rules should be given their plain meaning. If a direct collision with state law arises from that plain meaning, then the analysis developed in Hanna v. Plumer applies.

       “Rule 3 simply provides that an action is commenced by filing the complaint and has as its primary purpose the measuring of time periods that begin running from' the date -of commencement; the rule does not state that filing tolls the statute of limitations.” 4 C. Wright & A. Miller, Federal Practice and Procedure § 1057, p. 191 (1969) (footnote omitted).
      The Note of the Advisory Committee on the Rules states:
      “When a Federal or State statute of limitations is pleaded as a defense, a question may arise under this rule whether the mere filing of the complaint stops the running of the statute, or whether any further step is required, such as, service of the summons and complaint or their delivery to the marshal for service. The answer to this question may depend on whether it is competent for the Supreme Court, exercising the power to make rules of procedure without affecting substantive rights, to vary the operation of statutes of limitations. The requirement of Rule 4 (a) that the clerk shall forthwith issue the summons and deliver it to the marshal for service will reduce the chances of such a-question arising.” 28 IT. S. C. App., pp. 394-395.
      This Note establishes that the Advisory Committee predicted the problem which arose in Ragan and arises again in the instant case. It does not indicate, however, that Rule 3 was intended to serve as a tolling provision for statute of limitations purposes; it only suggests that the Advisory Committee thought the Rule might have that effect.

       The Court suggested in Ragan that in suits to enforce rights under a federal statute Rule 3 means that filing of the complaint tolls the applicable statute of limitations. 337 U. S., at 533, distinguishing Bomar v. Keyes, 162 F. 2d 136, 140-141 (CA2), cert. denied, 332 U. S. 825 (1947). See Ely, The Irrepressible Myth of Erie, 87 Harv. L. Rev. 693, 729 (1974). See also Walko Corp. v. Burger Chef Systems, Inc., 180 U. S. App. D. C., at 308, n. 19, 554 F. 2d, at 1167, n. 19; 4 Wright & Miller, supra, § 1056, and authorities collected therein. We do not here address the role of Rule 3 as a tolling provision for a statute of limitations, whether set by federal law or borrowed from state law, if the cause of action is based on federal law.

       The importance of actual service, with corresponding actual notice, to the statute of limitations scheme in Oklahoma is further demonstrated by the fact that under Okla. Stat., Tit. 12, § 97 (1971), the statute of limitations must be tolled as to each defendant through individual service, unless a codefendant who is served is “united in interest” with the unserved defendant. That requirement, like the service requirement itself, does nothing to promote the general policy behind all statutes of limitations of keeping stale claims out of court. Instead, the service requirement furthers a different but related policy decision: that each defendant has a legitimate right not to be surprised by notice of a lawsuit after the period of liability has run. If the defendant is “united in interest” with a codefendant who has been served, then presumably the defendant will receive actual notice of the lawsuit through the co defendant and will not have his peace of mind disturbed when he receives official service of process. Similarly, the defendant will know that he must begin gathering his evidence while that task is still deemed by the State to be feasible.

       The substantive link of § 97 to the statute of limitations is made clear as well by another provision of Oklahoma law. Under Okla. Stat., Tit. 12, § 151 (1971), “[a] civil action is deemed commenced by filing in the office of the court clerk of the proper court a petition and by the clerk’s issuance of summons thereon.” This is the state-law corollary to Rule 3. However, § 97, not § 151, controls the commencement of the lawsuit for statute of limitations purposes. See Tyler v. Taylor, 578 P. 2d 1214 (Okla. App. 1977). Just as § 97 and § 151 can both apply in state court for their separate purposes, so too § 97 and Rule 3 may both apply in federal court in a diversity action.

       Since we hold that Rule 3 does not apply, it is unnecessary for us to address the second question posed by the Hanna analysis: whether Rule 3, if it applied, would be outside the scope of the Rules Enabling Act or beyond the power of Congress under the Constitution.

       There is no indication that when petitioner filed his suit in federal court he had any reason to believe that he would be unable to comply with the service requirements of Oklahoma law or that he chose to sue in federal court in an attempt to avoid those service requirements.


author: Per Curiam. Me. Justice Powell, Mr. Justice Marshall,

text:
    HANRAHAN et al. v. HAMPTON et al.
    No. 79-912.
    Decided June 2, 1980

      Together with No. 79-914, Johnson et al. v. Hampton et al., also on certiorari to the same court.

   Per Curiam.

In the Civil Rights Attorney’s Fees Awards Act of 1976, Congress amended 42 U. S. C. § 1988 to permit the award of a reasonable attorney’s fee to the “prevailing party” as part of the taxable costs in a suit brought under any of several specified civil rights statutes. The respondents brought suit under three of those statutes in the United States District Court for the Northern District of Illinois, alleging that their constitutional rights had been violated by the petitioners, and seeking money damages from them. The District Court directed verdicts for the petitioners, but the Court of Appeals reversed and remanded the case to the District Court for a new trial, 600 P. 2d 600. The Court of Appeals also awarded to the respondents their costs on appeal, including attorney’s fees which it believed to be authorized by § 1988. Id., at 643-644.

The final sentence of § 1988, as amended, provides as follows:

“In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs,” 42 U. S. C. § 1988.

The statute by its terms thus permits the award of attorney’s fees only to a “prevailing party.” Accordingly, in the present cases, the Court of Appeals was authorized to award to the respondents the attorney’s fees attributable to their appeal only if, by reason of obtaining a partial reversal of the trial court’s judgment, they “prevailed” within the meaning of § 1988. The Court of Appeals believed that they had prevailed with respect to the appeal in this case, resting its conclusion upon the following appellate rulings favorable to the respondents: (1) the reversal of the District Court’s judgment directing verdicts against them, save with respect to certain of the defendants; (2) the reversal of the District Court’s denial of their motion to discover the identity of an informant; and (3) the direction to the District Court on-remand to consider allowing further discovery, and to conduct a hearing on the respondents’ contention that the conduct of some of the petitioners in response to the trial court’s discovery orders warranted the imposition of sanctions under Federal Rule of Civil Procedure 37 (b)(2). While the respondents did prevail on these matters in the sense that the Court of Appeals overturned several rulings against them by the District Court, they were not, we have concluded, “prevailing” parties in the sense intended by 42 U. S. C. § 1988, as amended.

The legislative history of the Civil Rights Attorney’s Fees Awards Act of 1976 indicates that a person may in some circumstances be a “prevailing party” without having obtained a favorable “final judgment following a full trial on the merits,” H. R. Rep. No. 94H558, p. 7 (1976). See also S. Rep. No. 94-1011, p. 5 (1976). Thus, for example, “parties may be considered to have prevailed when they vindicate rights through a consent judgment or without formally obtaining relief,” ibid. See also H. R. Rep. No. 94-1558, supra, at 7, and cases cited; Dawson v. Pastrick, 600 F. 2d 70, 78 (CA7 1979); Nadeau v. Helgemoe, 581 F. 2d 275, 279-281 (CA1 1978).

It is evident also that Congress contemplated the award of fees pendente lite in some cases. S. Rep. No. 94-1011, supra, at 5; H. R. Rep. No. 94-1558, supra, at 7-8. But it seems clearly to have been the intent of Congress to permit such an interlocutory award only to a party who has established his entitlement to some relief on the merits of his claims, either in the trial court or on appeal. The congressional Committee Reports described what were considered to be appropriate circumstances for such an award by reference to two cases — Bradley v. Richmond School Board, 416 U. S. 696 (1974), and Mills v. Electric Auto-Lite Co., 396 U. S. 375 (1970). S. Rep. No. 94-1011, supra, at 5; H. R. Rep. No. 94-1558, supra, at 8. In each of those cases the party to whom fees were awarded had established the liability of the opposing party, although final remedial orders had not been entered. The House Committee Report, moreover, approved the standard suggested by this Court in Bradley, that “ ‘the entry of any order that determines substantial rights of the parties may be an appropriate occasion upon which to consider the propriety of an award of counsel fees ...,’” H. R. Rep. No. 94-1558, supra, at 8, quoting Bradley v. Richmond School Board, supra, at 723, n. 28. Similarly, the Senate Committee Report explained that the award of counsel fees pendente lite would be “especially appropriate where a party has prevailed on an important matter in the course of litigation, even when he ultimately does not prevail on all issues.” S. Rep. No. 94-1011, supra, at 5 (emphasis added). It seems apparent from these passages that Congress intended to permit the interim award of counsel fees only when a party has prevailed on the merits of at least some of his claims. For only in that event has there been a determination of the “substantial rights of the parties,” which Congress determined was a necessary foundation for departing from the usual rule in this country that each party is to bear the expense of his own attorney.

The respondents have of course not prevailed on the merits of any of their claims. The Court of Appeals held only that the respondents were entitled to a trial of their cause. As a practical matter they are in a position no different from that they would have occupied if they had simply defeated the defendants’ motion for a directed verdict in the trial court. The jury may or may not decide some or all of the issues in favor of the respondents. If the jury should not do so on remand in these cases, it could not seriously be contended that the respondents had prevailed. See Swietlowich v. Bucks County, 620 F. 2d 33, 34 (CA3 1980). Nor may they fairly be said to have “prevailed” by reason of the Court of Appeals’ other interlocutory dispositions, which affected only the extent of discovery. As is true of other procedural or evidentiary rulings, these determinations may affect the disposition on the merits, but were themselves not matters on which a party could “prevail” for purposes of shifting his counsel fees to the opposing party under § 1988. See Bly v. McLeod, 605 F. 2d 134, 137 (CA4 1979).

The motion of Fraternal Order of Police of the State of Illinois in ease No. 79-912 for leave to file a brief, as amicus curiae, is granted.

The respondents’ motions for leave to proceed in forma pauperis are granted, the petitions for certiorari are granted, limited to the question of the propriety of the award of attorney’s fees by the Court of Appeals, and the judgment is reversed insofar as it awarded attorney’s fees to the respondents. In all other respects, the petitions for certiorari are denied.

It is so ordered.

Me. Justice Stevens took no part in the consideration or decision of these cases.

Me. Justice Powell,

with whom The Chief Justice and Me. Justice Rehnquist join,

concurring in part and dissenting in part.

I join the Court’s opinion insofar as it reverses the award of attorney’s fees entered by the Court of Appeals for the Seventh Circuit. As I would grant the petition filed by the federal defendants in its entirety, I dissent from the denial of certiorari in No. 79-914.

I

This civil litigation arose in the aftermath of a 1969 police raid on a Chicago apartment occupied by nine members of the Black Panther Party, two of whom were killed. The surviving occupants of the apartment and the legal representatives of the deceased Black Panthers filed four actions for damages, now consolidated, against 28 state and federal law enforcement officials. The complaints allege numerous violations of constitutional rights. In particular, the plaintiffs claim that three agents assigned to the Federal Bureau of Investigation’s Chicago office and an informant working with them (the federal defendants) conspired with state officers to carry out the operation, to conceal its allegedly sinister nature, and to harass the plaintiffs with unfounded prosecutions.

The jury trial lasted 18 months, generating a 37,000-page transcript and masses of documentary evidence. At the close of the plaintiffs’ case, some 16 months after trial began, the District Court granted directed verdicts in favor of the federal and most of the state defendants. Trial continued as to the police officers who actually participated in the apartment incident. Ultimately, the jury deadlocked and the District Court entered a final judgment directing verdicts in favor of all of the defendants. A divided panel of the Court of Appeals vacated the judgment and ordered a new trial as to all but four of the defendants.

I have not reviewed the entire record of what is said to have been “the longest case tried to a jury in the history of the United States judiciary.” Memorandum of District Court, App. to Pet. for Cert. in No. 79-914, p. 175a. I have, however, read with care the three separate opinions filed in the Court of Appeals as well as the District Court's extensive memorandum. Each judge agreed that the case against the federal defendants turns upon the sufficiency of the evidence regarding the alleged conspiracy.

At the close of the plaintiffs’ case in chief, the District Court “reviewed all of the evidence . . . with all reasonable inferences that could be drawn therefrom, in the light most favorable to the plaintiffs." Id., at 186a. The court found the record “devoid of proof of . . . participation [by the federal defendants] in a conspiratorial plan among themselves or with the state defendants. Thus no liability on their part existed and their motions for directed verdicts were granted.” Id., at 193a-194a. More specifically, the court explained:

“Each of the Federal defendants was called by plaintiffs as adverse witnesses. Each testified extensively and denied knowledge or [sic], or participation in, a plan, or an agreement, or a conspiracy between themselves, or between them or any of them, and any and all of the State defendants to violate plaintiffs’ constitutional and statutory rights through conduct of the search of the apartment, or prior thereto, or after the occurrence, or otherwise. Their denials were uncontradicted and unim-peached by any testimony whatsover." Id., at 189a-190a.

Despite the explicit findings of the judge who presided over this 18-month trial, a majority of the Court of Appeals drew its own inferences and concluded that the evidence was sufficient to “warrant a jury determination of whether a conspiracy existed." 600 F. 2d 600, 621 (1979). The majority’s lengthy opinion indicates that the court relied primarily, if not entirely, upon extensive testimony describing an FBI counterintelligence program directed against a number of organizations including the Black Panther Party.

There is no question that the FBI viewed that organization, which openly advocated armed resistance to authority and had a documented record of violence, as a serious threat to public safety and to the lives of law enforcement officers. But the issue at trial was not whether the FBI had a program designed to discredit the Black Panthers, or even whether the program had produced excesses. The only issue was whether these federal defendants conspired with state officers to conduct an unlawful search in which excessive force would be used or, subsequently, to harass the plaintiffs with malicious prosecutions. See id., at 648-649 (Fairchild, C. J., concurring).

No one contends that any of the federal defendants took part in the raid itself. They did supply information to state officers about illegal firearms stored in the apartment. But each federal defendant testified that he did not know of and did not participate in any planning or joint activity regarding the operation at any time. This uncontradicted testimony was fully corroborated by the state defendants. In these circumstances, inferences drawn from a program not shown to have been related to the events in question are of dubious value. Judge Pell, dissenting in part in the Court of Appeals, viewed the matter as follows:

“Going next to the . . . remaining state defendants and the federal defendants, I cannot agree that there was a basis for reasonable inferences that there was any kind of an agreement among them, express or implicit, to cause a raid to be made with the object of killing or wounding various Black Panther Party members. It is true that at the time in question, the federal authorities thought it would be in the public good to neutralize the Black Panther Party so that it could not carry out its avowed purpose, among others, of killing policemen. Indeed, the idea perhaps could have been entertained by some, if not all, of those defendants who were engaged in law enforcement work that the community would be a safer place for law-abiding citizens to live and work in if Fred Hampton and his cohorts were not on the scene. This human feeling is far removed from a basis for an inference that they deliberately set a course to accomplish that by violence.
“In our jurisprudence a person cannot be convicted of a traffic offense unless proven guilty beyond a reasonable doubt. Even though the present case is of the civil variety, I cannot believe that the law should permit a determination that any person has deliberately planned a homicide on nothing more than speculative conjecture or mere suspicion. The hard basic reasonable inference-creating facts just did not exist in this case.” Id., at 660-661.

In the absence of positive evidence or “reasonable inference-creating facts,” there was no reason to include the federal defendants in the remand for a second trial.

II

This Court ordinarily leaves questions as to the sufficiency of evidence in a particular case to the courts below. But this is not ordinary litigation. Although it may appear on the surface to be an unexceptional civil rights suit for damages, the extraordinary magnitude of the litigation and the nature and scope of the evidence demonstrate that this lawsuit differs from the civil damages actions to which our courts are accustomed.

Judge Pell observed that “this case has important overtones of unbridled denigrating attacks on governmental officials.” Id., at 666. The allegations of unconstitutional conduct by the state defendants are serious indeed, and I express no view on the merits of these claims. But the plaintiffs have a larger target: the Federal Bureau of Investigation. It is apparent that a basic trial strategy was to attack the FBI broadly. If there were sufficient relevant evidence to support the plaintiffs’ claims, the law would require that they go to the jury regardless of underlying motive. Yet the presence of this collateral objective, related only tangentially if at all to the recovery of damages, imposed a special duty on the courts to bear in mind the admonition of Butz v. Economou, 438 U. S. 478, 508 (1978), that “federal officials [not be] harassed by frivolous lawsuits.”

Butz rejected a claim that all highly placed federal officials should be absolutely immune from liability for civil rights violations. But federal officials, like state officials sued under 42 U. S. C. § 1983, have qualified immunity from suit. They therefore are liable only when they “discharge their duties in a way that is known to them to violate ... a clearly established constitutional rule.” 438 U. S., at 507. In Butz, we emphasized that absolute immunity is unnecessary to protect the public interest in “encouraging the vigorous exercise of official authority,” id., at 506, because qualified immunity shields officials from liability for good-faith mistakes. We predicted that such immunity would prove “workable,” because “firm application of the Federal Rules of Civil Procedure” would permit “[i]nsubstantial lawsuits [to] be quickly terminated.” In particular, “damages suits concerning constitutional violations need not proceed to trial, but can be terminated on a properly supported motion for summary judgment. . . .” Id., at 507-508. The District Court heeded this admonition.

In reversing that court, the Court of Appeals misappreciated the premises on which this Court rested its ruling in Butz. In Butz, we endeavored to accommodate two important societal objectives: to compensate persons injured by civil rights violations, and to do so without discouraging vigorous enforcement of the laws. The first objective impelled the Court to reject absolute in favor of qualified immunity for most officials. We recognized, however, that our decision would invite litigation in which constitutional claims easily are asserted. We therefore cautioned the judiciary to exercise their authority under the rules of procedure in order to protect official defendants from groundless claims. Id., at 507.

Our concern in Butz was that extravagant charges might force officials to trial on claims that lacked a substantial basis in fact. In this case, there can be little speculation as to what evidence may be marshaled in support of the complaint. After 16 months of trial devoted exclusively to the plaintiffs’ evidence, the trial court found the record wholly “devoid of proof of . . . participation” by the federal defendants in the conspiracy alleged. App. to Pet. for Cert, in No. 79-914, p. 193a. These defendants continue to assert that their conduct was a routine and good-faith effort at cooperative law enforcement. Neither the parties nor the courts below have identified concrete evidence to the contrary. If a new trial may be ordered in this case, similar allegations could survive properly supported motions for summary judgment on the basis of speculative inferences from unrelated evidence. The prospect of defending such lawsuits can hardly fail to “dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties.” Gregoire v. Biddle, 177 F. 2d 579, 581 (CA2 1949).

Ill

The Court of Appeals’ remand for a second trial as to the federal defendants in this case vitiates the protection we sought to insure in Butz. The effect on legitimate law enforcement efforts could be serious. At the least, these officers’ experience is likely to discourage other federal officials from cooperating with state law enforcement agencies over which they have no control. I would grant the petition for certiorari.

Mr. Justice Marshall,

dissenting.

It is not clear to me that the award of attorney’s fees in this case was in error because “respondents have of course not prevailed on the merits of any of their claims.” Ante, at 758. The Court concedes that Congress in passing the Civil Rights Attorney’s Fees Awards Act of 1976 contemplated the award of attorney’s fees pendente lite in certain instances, and that a litigant may be a “prevailing party” for purposes of the Act without obtaining final judgment on the merits following a full trial. It is sufficient if there has been a determination of “ ‘substantial rights of the parties,’ ” ante, at 757, quoting H. R. Rep. No. 94 — 1558, p. 8 (1976).

In the instant case, respondents have been successful in obtaining reversal on appeal of a directed verdict entered against them. While this “only” means that respondents are entitled to a trial of their cause, ante, at 758, that is a major accomplishment which determines “substantial rights of the parties.” Had petitioners been successful in defending their directed verdict on appeal, there is no doubt that they would be considered to have prevailed on the merits; the lawsuit would have been finished. Obtaining an appellate order requiring that a new trial be held after an action to enforce civil rights has been prematurely terminated similarly is an achievement reflecting on the merits of the case. The decision of the Court of Appeals, establishing that respondents produced sufficient evidence to warrant sending their case to the jury, breathes new life into an otherwise dead lawsuit. Without full briefing and oral argument, I am unable to say that this does not fall within the category of legal victories which determine “substantial rights of the parties” for purposes of the Act.

In my view, the attorney’s fees issue is sufficiently difficult to warrant the plenary attention of this Court rather than summary reversal. Accordingly, I dissent.

       The controversy arose from the execution in 1969 of a judicial warrant to search for and seize illegal weapons within an apartment in Chicago occupied by nine members of the Black Panther Party. In the course of the search two of the apartment’s occupants were killed by gunfire, and four others were wounded. The police seized various weapons and arrested the seven surviving occupants of the apartment. The survivors were indicted by a state grand jury on charges of attempted murder and aggravated battery, but the indictments ultimately were dismissed. Those seven persons and the legal representatives of the two persons killed are the respondents in these cases. Named as defendants in the respondents’ suits were Cook County, the city of Chicago, and various state and local oficiáis allegedly involved in the search or its aftermath. Those officials are the petitioners in No. 79-912. After proceedings in the District Court and the Court of Appeals resulted in the dismissal of the complaint against the city and the county, see Hampton v. Chicago, 339 F. Supp. 695 (ND Ill. 1972), aff’d in part and rev’d in part, 484 F. 2d 602 (CA7 1973), the respondents filed an amended complaint naming as additional defendants the three Federal Bureau of Investigation agents and an informant who are the petitioners in No. 79-914.
      The respondents based their claims on 42 U. S. C. §§ 1983, 1985 (3) (1976 ed., Supp. II), and 1986, and on provisions of the Constitution. They also alleged various causes of action under state law.

       In an unpublished supplemental opinion issued on December 12, 1979 (as amended December 21, 1979), fixing the amount of the fee award, the Court of Appeals reiterated its conclusion that the respondents were “prevailing parties” within the meaning of 42 U. S. C. § 1988.

       The Court of Appeals recognized that the respondents had not “prevailed” in the District Court, and for that reason limited the award of counsel fees to those incurred by the respondents in the course of the appeal. 600 F. 2d 600, 643-644.

       The provision for counsel fees in § 1988 was patterned upon the attorney’s fees provisions contained in Titles II and VII of the Civil Rights Act of 1964, 42 U. S. C. §§ 2000a-3 (b) and 2000e-5 (k), and § 402 of the Voting Rights Act Amendments of 1975, 42 U. S. C. § 19731 (e). S. Rep. No. 94-1011, p. 2 (1976); H. R. Rep. No. 94-1558, p. 5 (1976). Those provisions have been construed by the Courts of Appeals to permit the award of counsel fees only to a party who has prevailed on the merits of a claim. See Bly v. McLeod, 605 F. 2d 134, 137 (CA4 1979) (Voting Rights Act); Chinese for Affirmative Action v. Leguennec, 580 F. 2d 1006, 1009 (CA9 1978) (same); Grubbs v. Butz, 179 U. S. App. D. C. 18, 20-21, 548 F. 2d 973, 975-976 (1976) (Title VII); Sperling v. United States, 515 F. 2d 465, 485 (CA3 1975) (same). See also Christiansburg Garment Co. v. EEOC, 434 U. S. 412, 418 (1978) (“[W]hen a district court awards counsel fees [under the Civil Rights Act of 1964] to a prevailing plaintiff, it is awarding them against a violator of federal law”). But cf. Van Hoomissen v. Xerox Corp., 503 F. 2d 1131, 1133 (CA9 1974).
      In the cases cited by the Court of Appeals to justify the award of counsel fees in these cases, those to whom fees were awarded had prevailed on the merits of at least some of their claims. See Davis v. Murphy, 587 F. 2d 362, 363-364 (CA7 1978); Nadeau v. Helgemoe, 581 F. 2d 275, 279-281 (CA1 1978); Wharton v. Knefel, 562 F. 2d 550, 556 (CA8 1977).

       The Court of Appeals stated that, in reversing the directed verdicts, it was “not passing on the ultimate validity of [the respondents’] claims,” 600 F. 2d, at 621, n. 20. Indeed, Chief Judge Fairchild emphasized in his concurring opinion that the court’s use of the phrase “ ‘prima facie’ case” in referring to the evidence adduced by the respondents should not be taken to mean that at “any stage of this case . . . the evidence compelled a verdict for [the respondents] unless rebutted.” Id., at 648.

       I confine this dissent to the federal defendants, although it is not clear that the Court of Appeals properly reversed the directed verdicts as to many of the other defendants. See 600 F. 2d 600, 649 (1979) (Pell, J., dissenting in part).

       Summarizing evidence of record, Judge Pell’s dissent described the party as an “extremist, paramilitary, uniformed organization. ... It was a violent, revolutionary organization, which by party edict required its members to own and know how to use weapons and to have access to more than one weapon.” Id., at 654.
      Judge Pell also noted that “Black Panther publications called for killing policemen,” that the party “published a ‘Destruction Kit’ which described how to make and use incendiary bombs and other similar devices,” that children attending its highly praised breakfast program were instructed to “Kill the Pigs,” and that Black Panthers had “boasted” that one of their members had killed two Chicago police officers less than a month before the events at issue in this case. Id., at 654-655.


text:
    April 21, 1980
    No. 78-5928.
    Waller v. United States.
   Appeal from Ct. App. D. C. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 79-1339.
    Childs v. Childs.
   Appeal from App. Div., Sup. Ct. N. Y., 2d Jud. Dept., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 79-1145.
    Budget Marketing, Inc., et al. v. Kentucky.
   Appeal from Sup. Ct. Ky. dismissed for want of substantial federal question.

Mr. Justice Stewart would note probable jurisdiction and set case for oral argument.


text:
    No. 79-1341.
    Bowman v. Maine State Employees Appeals Board et al.
   Appeal from Sup. Jud. Ct. Me. dismissed for want of substantial federal question.


text:
    No. 79-5946.
    Parkins et al. v. Illinois.
   Appeal from Sup. Ct. Ill. dismissed for want of substantial federal question.


text:
    No. 79-6094.
    Cruz v. New York.
   Appeal from Ct. App. 'N. Y. dismissed for want of substantial federal question.


text:
    No. 79-6160.
    Jackson v. Wisconsin.
   Appeal from Ct. App. Wis. dismissed for want of substantial federal question.


text:
    No. 79-6174.
    Higgins v. Missouri.
   Appeal from Sup. Ct. Mo. dismissed for want of substantial federal question.


text:
    No. 79-6050.
    Cross v. Church et al.
   Appeal from Small Claims Court, San Mateo County, Cal., dismissed for want of jurisdiction.


text:
    No. 79-6152.
    Hayes v. Valley Bank of Nevada; and Hayes v. Gladstone et al.
   Appeal from Sup. Ct. Nev. dismissed for want of properly presented federal question.


text:
    No. 78-5422.
    Gonzalez v. New York.
   Appeal from App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Judgment vacated and case remanded for further consideration in light of Payton v. New York, 445 U. S. 573 (1980).


text:
    No. 77-6769.
    Brown v. Florida.
   Dist. Ct. App. Fla., 1st Dist. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Payton v. New York, 445 U. S. 573 (1980).


text:
    No. 78-5403.
    Busch v. Florida.
   Dist. Ct. App. Fla., 1st Dist. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Payton v. New York, 445 U. S. 573 (1980).


text:
    No. 78-5471.
    Pynes v. United States.
   Ct. App. D. C. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Whalen v. United States, 445 U. S. 684 (1980).


text:
    No. 78-6276.
    Vidal v. New York.
   App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Payton v. New York, 445 U. S. 573 (1980).


text:
    No. 78-6839.
    Gordon v. New York.
   App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Payton v. New York, 445 U. S. 573 (1980).


text:
    No. 79-326.
    United States v. Duncan et al.
   Ct. Cl. Certiorari granted, judgment vacated^ and case remanded for further consideration in light of United States v. Mitchell, 445 U. S. 535 (1980).


text:
    No. 79-620.
    Sala v. County of Suffolk.
   C. A. 2d Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Owen v. City of Independence, 445 U. S. 622 (1980).