Anderson v. Redman, Civ. A. No. 76-364.

• Decision Date: 18 June 1979
• Docket Number: Civ. A. No. 76-364.
• Citation: 474 F. Supp. 511
• Court: U.S. District Court — District of Delaware
• Parties: Henry ANDERSON et al., Plaintiffs, v. Walter REDMAN et al., Defendants.

474 F. Supp. 511

Henry ANDERSON et al., Plaintiffs, v. Walter REDMAN et al., Defendants.

Civ. A. No. 76-364.

United States District Court, D. Delaware.

June 18, 1979.

COPYRIGHT MATERIAL OMITTED

Gary A. Myers, Dover, Del., and H. William Schab, Jr., Community Legal Aid Society, Inc., Georgetown, Del., for plaintiffs.

John A. Parkins, Jr., Asst. Atty. Gen., and John J. Polk, Asst. Atty. Gen., Dept. of Justice, Wilmington, Del., for defendants.

OPINION

MURRAY M. SCHWARTZ, District Judge.

At the time this complaint was filed on October 25, 1976,¹ plaintiffs in this class action were all incarcerated prisoners at the Delaware Correctional Center ("DCC") in Smyrna, Delaware. Invoking the Eighth and Fourteenth Amendments, 42 U.S.C. § 1983 and several state laws governing corrections, their complaint sought permanent injunctive relief to alleviate the overcrowding of prisoners at DCC. This Court entered a final order in February of 1977 granting plaintiffs permanent injunctive relief. Although this Court expressly recognized the existence of a substantial federal constitutional question, it exercised pendent jurisdiction over plaintiffs' state-law claims and granted relief, with one exception,² solely on the basis of those state-law violations. Plaintiffs filed a Bill of Costs and Amended Bill of Costs seeking attorneys' fees under the Civil Rights Attorney's Fees Awards Act of 1976 ("Fees Act") from the defendants in their official capacities for the fees and costs of successful prosecution of their claims by Gary A. Myers, a senior staff attorney of the Community Legal Aid Society, Inc. ("CLASI"), and his co-counsel, H. William Schab, Jr., also with CLASI. Because the defense to the petition for fees includes a challenge to the constitutionality of the Fees Act, the Attorney General was notified pursuant to 28 U.S.C. § 2403 and invited to intervene. Although the Government decided not to intervene, the Department of Justice filed a brief amicus curiae. After holding an evidentiary hearing on May 15, 1979 to consider plaintiffs' application for fees, the Court now issues its findings of fact and conclusions of law under the Court of Appeals' ruling in Lindy Brothers Builders v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d Cir. 1973) (Lindy I).

I. INTRODUCTION

Because of its relevance to later dispositions, the somewhat unusual procedural background of this litigation will be described in some detail. The culminating February 1977 order in this case represented the completion of two separate lawsuits filed in the District of Delaware arising out of the identical set of facts and circumstances. The first case, bearing the docket number 76-202, began in May or June of 1976 when Gary A. Myers, then a staff attorney with CLASI, visited DCC on an unrelated matter and came into contact with a few prisoners, some of whom later became named plaintiffs in this case, who complained to him about the overcrowded conditions there and sought his assistance in instituting suit. A complaint, captioned Anderson v. Redman and bearing the docket number 76-202 was filed in District Court on June 14, 1976. That litigation progressed through the summer, while Mr. Myers took defendant Redman's deposition and motions and affidavits were filed in support of a class action certification.

On October 8, 1976, the parties convened in chambers for a conference in order to resolve a procedural dilemma created by a Fifth Circuit decision dated September 27, 1976, Costello v. Wainwright, 539 F.2d 547 (1976) (en banc), which held that when prisoners attacked the overcrowding of a state correctional system and requested relief that touched upon the constitutionality of and would impinge upon the operation of a state statute, a three-judge court would have to be convened under the old three-judge court act, 28 U.S.C. § 2281. Meanwhile, in August of 1976, Congress repealed 28 U.S.C. § 2281, abolishing the requirement that a three-judge panel sit as a district court when the constitutionality of a state statute is called into question. That repeal, however, would not have affected 76-202 because a savings clause left unaffected cases pending at the effective date of the repeal. Were the Third Circuit ultimately to agree with the en banc decision in Costello,³ a second trial might have been necessary. Because all parties wished to avoid the uncertainty, it was agreed that the most simple solution would be to file a new complaint, thereby removing this litigation from the scope of the old three-judge court act and eliminating any doubt as to the jurisdiction of a single judge to hear the dispute.

Because the parties had already agreed to a trial date in 76-202, expeditious action was required. The parties agreed to an expedited pleading and briefing schedule. A new complaint was filed on October 25, 1976 similar but not identical to that in 76-202. The docket number of that second complaint, now the operative complaint of this case, is 76-364. Defendants filed an answer on the 11th of November. By the 15th of November, class certification had been ordered and trial commenced as planned on November 22, 1976. Thus, less than a month elapsed between the filing of the complaint in 76-364 and the beginning of trial. While Mr. Myers and his colleague Mr. Schab, along with defendants' counsel, were preparing for trial, Congress passed the Civil Rights Attorney's Fees Awards Act of 1976 on October 19, 1976.

Defendants assert three initial barriers to any award of fees to plaintiffs' counsel. They raise the statutory argument that Congress did not intend to permit the award of fees when a plaintiff prevails only on his state-law claims if the federal claims are never reached. Alternatively they argue that even if Congress had so intended, an award of fees against a state under § 1988 for work performed on pendent claims, as distinct from any award for success on federal claims, is an improper exercise of congressional authority under § 5 of the Fourteenth Amendment. Third, defendants raise as a defense CLASI's corporate by-laws, which in 1976 ostensibly prohibited CLASI's attorneys from undertaking representation in cases where a statutory fee is available.

Defendants also raise a series of objections to certain of counsel's claimed hours as unreasonable, poorly recorded, or as not representing the exercise of professional judgment. Each of these categories of defenses will be considered in turn.

II. STATUTORY AND CONSTITUTIONAL CONTENTIONS

Defendants first challenge any award of fees for time spent by plaintiffs' counsel in the litigation of pendent state-law claims, given that the federal claims, although raising substantial federal issues, were not reached by this Court.⁴ The Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, provides:

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.

Defendants argue that nothing on the face of § 1988 purports to allow fees for parties who do not prevail on their federal claims and, invoking a time-worn maxim, they further contend that if nothing on the face of the statute covers fees for pendent state-law claims, plaintiffs are precluded from raising legislative history in an attempt to alter or amend a clear and unambiguous statute. This Court rejects defendants' argument because it is unequivocally rejected in the legislative history of § 1988 and because the unanimous weight of authority supports plaintiffs' position that Congress intended the award of fees for work performed relating to state-law claims if unaddressed federal claims are substantial and arise out of the same operative facts.

The House Judiciary Committee Report addressed itself to the preference of federal courts to rest a decision on an adequate state-law ground, if one is available, in order to avoid unnecessary constitutional adjudication.

To the extent a plaintiff joins a claim under one of the statutes enumerated in the Act with a claim that does not allow attorney fees, that plaintiff, if it prevails on the non-fee claim, is entitled to a determination of the other claim for the purpose of awarding counsel fees. Morales v. Haines, 486 F.2d 880 (7th Cir. 1973). In some instances, however, the claim with fees may involve a constitutional question which the courts are reluctant to resolve if the nonconstitutional claim is dispositive. Hagans v. Lavine, 415 U.S. 528 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974). In such cases, if the claim for which fees may be awarded meets the "substantiality" test, see Hagans v. Lavine, supra; United Mine Workers v. Gibbs, 383 U.S. 715 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), attorneys' fees may be allowed even though the court declines to enter judgment for the plaintiff on that claim, so long as the plaintiff prevails on the non-fee claim arising out of a "common nucleus of operative fact." United Mine Workers v. Gibbs, supra at 725 86 S.Ct. 1130.

H.R.Rep.No.1558, 94th Cong., 2d Sess. 4 n. 7 (1976). This Court agrees with at least three Courts of Appeals that this statement presents as strong an indication of congressional intent on the question as could reasonably be expected. See Gagne v. Maher, 594 F.2d 336, at 340 (2d Cir. 1979); Kimbrough v. Arkansas Activities Association, 574 F.2d 423, 426-27 (8th Cir. 1978); Seals v. Quarterly County Court, 562 F.2d 390, 394 (6th Cir. 1977). Several lower courts have reached the identical conclusion. See White v. Beal, 447 F.Supp. 788, 793-94 (E.D.Pa.1978); Lund v. Affleck, 442 F.Supp. 1109, 1112-13 (D.R.I.1977); La Raza Unida v. Volpe, 440 F.Supp. 904, 911 (N.D.Cal.1977).

Defendants point to the Third Circuit Court of Appeals' recent decision in Baughman v. Wilson Freight Forwarding Co., 583 F.2d 1208 (3d Cir. 1978), which held...