BROWNING, Circuit Judge:
Officials of Hawaii's Department of Social Services and Housing challenge the attorneys' fee awards made to prevailing plaintiffs in four section 1983 class actions alleging equal protection and statutory violations in the administration of Hawaii's Medicaid and AFDC programs.
I.
Appellants' contention that the Eleventh Amendment prohibits awards of attorneys' fees against state officials acting in their official capacities has been rejected by the Supreme Court in Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978). The Court stated:
Section 1988 applies to "`all cases pending on the date of enactment'". Id. at 695 n.23, 98 S.Ct. at 2576 n.23 quoting H.R.Rep. No. 94-1558, 94th Cong., 2d Sess., at 4 n.6 (1976). Since these four cases fall in that category, the awards are not barred by the Eleventh Amendment.
II.
While appellants concede the awards are not barred merely because appellees' counsel is a legal services organization providing free legal representation,
As to the source of LASH's funding, appellants point out that the State of Hawaii supports LASH through direct annual appropriations,
As to the nature of LASH's program commitment, appellants point out that LASH is a legal aid organization dedicated to providing free legal services to the poor and that LASH has voluntarily adopted a program giving priority to civil rights litigation. They argue that since LASH has already voluntarily done what an award of attorneys' fees under the Civil Rights Attorney's Fees Awards Act was intended to encourage, a further award under the Act would be unnecessary and would not serve the purposes of the Act.
The state's arguments are not supported by the language, the legislative history, or the purposes of the Act.
The language of section 1988, Title 42, is broad and unequivocal. "In any action or proceeding to enforce" section 1983, "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" (emphasis added). While the discretion vested in the court may allow denial of an award because of circumstances peculiar to a particular case, the statutory language hardly permits the denial of an award in every suit brought against the state by a legal services organization that furnishes its services without cost, expresses a commitment to the enforcement of civil rights, and is funded by the state.
Congress was aware that these characteristics are common to legal services organizations. Congress knew that state agencies and officials would be among the civil rights defendants against whom attorneys' fees could be awarded under the Act.
Most persuasive, appellants' interpretation of the statute would run counter to the statutory purpose. As appellants correctly state, Congress' purpose in authorizing fee awards was to encourage compliance with and enforcement of the civil rights laws.
As noted at the outset, appellants concede that attorneys' fees may be awarded under the Fees Awards Act even though plaintiffs have been represented without charge by a legal services organization. An award in these circumstances serves the purposes of the Act for two reasons: (1) the award encourages the legal services organization to expend its limited resources in litigation aimed at enforcing the civil rights statutes; and (2) the award encourages potential defendants to comply with civil rights statutes. These same considerations support an award of attorneys' fees when the legal services organization is funded by the state and the state is the defendant.
Even when funded by the state, legal services organizations operate on limited budgets and must allocate their resources among competing projects. Fee awards in civil rights cases encourage legal services organizations to pursue such litigation because the awards permit replenishment of the funds available for the organization's work. While LASH has a present program commitment to civil rights litigation, that commitment is not immutable. Continuation of the commitment is made more attractive by the prospect of recouping resources devoted to such suits. Moreover, attorneys' fees awards will allow LASH to expand its efforts to enforce civil rights statutes in accordance with its commitment.
The possibility that a state's potential liability for attorneys' fees may encourage it to achieve greater compliance with the civil rights laws is not diminished because the state has funded the legal services organization representing plaintiff. By contrast, if the state were led to expect a reduction in its obligations because it had contributed funds to plaintiffs' counsel, the deterrent effect of a potential fee award would be undermined. Similarly, while potential liability for attorneys' fees may encourage a state defendant to settle civil rights litigation that has been brought against it, if the state could immunize itself against a fee award by contributing to the financing of plaintiffs' counsel the state would have less incentive to settle pending litigation and more incentive to resist civil rights compliance by defending against the suit until trial.
These considerations would apply if the legal services organization involved were financed entirely by state appropriations. They apply with greater force where, as here, the state's funding is only partial. See note 5. If the state would wholly escape its obligation to pay attorneys' fees by partially funding plaintiff's attorney, an obvious loophole would be created in the Fee Awards Act. Nor is there any logical basis for reducing the award pro tanto. Every consideration of statutory language, legislative history, and Congressional purpose supports a full award of attorneys' fees, undiminished by the state's contribution to the financing of plaintiff's counsel through legislative appropriations independent of the litigation.
The remaining argument is that "double payment" is somehow "unfair." Since awards of attorneys' fees to state funded legal services organizations in civil rights litigation against the state are encompassed within the statutory language of the Fee Awards Act, were in all probability contemplated by Congress, and serve the purposes for which the Act was adopted, the question of fairness has been resolved by Congress. The result sought by the state cannot reasonably be reached through interpretation of the federal statute. If the state wishes to confine its financial contribution to civil rights enforcement to the amount appropriated by the state for that purpose, without enhancement through attorneys' fees awards, that result must be accomplished by other means.
III.
Appellants argue that LASH was barred from seeking or receiving attorneys' fees because the administrative guidelines issued under the Legal Services Corporation Act prohibit recipient organizations from accepting "fee-generating" cases. See 42
Appellants have failed to exhaust the administrative procedures established for enforcing the "fee-generating" guidelines. See 45 C.F.R., part 1618. These administrative enforcement procedures were established
Appellants' argument is ancillary to the underlying proceedings, and is presented without the benefit of either an adequate record or the agency's construction of the statute or of its own regulations. We decline to consider it.
IV.
Appellants challenge the amount of the fee award in Lynch on a variety of grounds. The district court awarded plaintiff in Lynch $10,139 in attorneys' fees for 156 hours of work. The award was explicitly based on three findings: counsel had demonstrated skill and experience in civil rights litigation both in Lynch and in earlier cases; the rates of compensation sought were typical of those earned by experienced Honolulu attorneys; and although "hindsight might suggest that fewer hours were needed," the time actually spent was reasonable and reflected good legal judgment, particularly because plaintiffs "were never assured of early success." These findings support the award and are in turn supported by the affidavits submitted by plaintiff. Appellants' objections to the award are without merit.
Appellants argue that the data furnished in support of the award in Lynch were not sufficiently detailed to enable the court to evaluate the factors that must be considered in determining "reasonable" attorneys fees. Four affidavits were offered by the attorneys who worked on the case. Three of the affiants described their extensive experience in litigation similar to Lynch; the fee for the fourth was calculated by the court at a lower hourly rate. Each affiant itemized the number of hours he or she expended on the case with a short description of each task performed and the time taken to perform it. Appellants object because the dates are not specified, but the listing is chronological, and sufficiently detailed to enable the court to understand precisely what was claimed, particularly in light of the court's intimate knowledge of the proceedings in the case. Appellants point out that more detailed time sheets were available and were submitted with appellants' motion for reconsideration, but were rejected by the court because they did not constitute "newly discovered evidence." This ruling did not affect the result. Contradictions said to be disclosed by the time sheets had already been urged upon the court. In any event, since the time sheets reflected more time than was actually claimed, no prejudice to appellants appears. Nor can we accept appellants' argument that the court may not have considered the possibility of unnecessary duplication of effort by plaintiffs' attorneys. This same argument was clearly made to the court, and in announcing the award the court said it had considered all factors relevant under standard authorities,
We have already rejected appellants' contention that the award should have been reduced because counsel were partly financed by the state. Appellants' suggestion that fees awarded to legal services organizations should be less than those customarily paid private counsel in civil rights cases is also untenable.
V.
In each of the four cases the district court ordered attorneys' fees awarded to "plaintiffs." Although consistent with the statutory language authorizing a fee award to the "prevailing party," to avoid a windfall the award should be made to the organization that provided the legal services.
AFFIRMED.
FootNotes
See Rodriguez, supra 569 F.2d at 1245; Hairston, supra, 510 F.2d at 1092; Incarcerated Men of Allen County Jail, supra, 507 F.2d at 286. See also Brandenburger, supra, 494 F.2d at 889.
See also Note, supra, 87 Harv.L.Rev. at 413-20, and such pre-statutory cases as Hairston, Incarcerated Men of Allen County Jail, and Brandenburger, cited in note 4.
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