The opinion of the court was delivered by: NEWCOMER
Newcomer, District Judge.
On July 5, 1973, this class action litigation was commenced by the Mental Patient Civil Liberties Project, the Patients Rights Organization, and individual patients and ex-patients of Haverford State Hospital, individually and on behalf of the classes they sought to represent. The plaintiffs sought to enjoin the defendants' allegedly unlawful and arbitrary policies and practices relating to the patients' rights to visit with, contact, get advice from and be provided services by community organizers, citizens and attorneys. The defendants' policies were alleged to be violative of the rights guaranteed to the patients and those who sought to serve them under the First, Sixth, Ninth and Fourteenth Amendments of the United States Constitution. In addition, plaintiffs sought enforcement of contractual rights which provided access to Haverford State Hospital and an award of damages and reasonable attorneys' fees.
After an eventful litigation history, highlighted by a denial of plaintiffs' motion for a preliminary injunction and a denial of defendants' motion to dismiss for failure to state a claim, this Court approved a consent decree, submitted by both parties, on April 10, 1975. Subsequently, the plaintiffs filed a motion for attorneys' fees; this motion was denied without opinion. Plaintiffs' motion for reconsideration was denied as this Court found that the Supreme Court's decision in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 44 L. Ed. 2d 141, 95 S. Ct. 1612 (1975), precluded an award of attorneys' fees. The Court of Appeals summarily affirmed this Court's decision, 541 F.2d 275 (3d Cir. 1976). Prior to the time when the plaintiffs' filed a petition for a writ of certiorari with the United States Supreme Court from the decision of the Court of Appeals, Congress enacted the Civil Rights Attorney's Fees Awards Act of 1976, Pub. L. 94-559, 42 U.S.C. § 1988 as amended (hereinafter "Attorney's Fees Act"). In light of the passage of this Act, the United States Supreme Court entered an order on March 21, 1977, granting certiorari, vacating the judgment of the Court of Appeals and remanding the case to the Court of Appeals for the Third Circuit for consideration in light of the Attorney's Fees Act. On remand, after submission of briefs by the parties, the Court of Appeals, on May 31, 1977, remanded the matter to this Court for further consideration in light of the Attorney's Fees Act. Given the directive of the Court of Appeals, this Court must now decide the issue of whether the plaintiffs are entitled to attorneys' fees. After full consideration of the facts and law involved, this Court concludes that the plaintiffs' are, indeed, entitled to attorneys' fees.
To reach this decision several issues have to be addressed. First, the Court must determine whether the consent decree precludes an award of attorneys' fees. Secondly, the Court has to decide whether this case was "pending" on the effective date of the Attorneys' Fees Act. Thirdly, the Court must determine whether the Eleventh Amendment acts as a bar to an award of attorneys' fees in this case. And finally, the Court must consider whether the plaintiffs were the prevailing parties in this case and whether, if they were prevailing parties, the Court in its discretion should award attorneys' fees. Each of these issues shall now be considered.
The sixth paragraph of the consent decree which was approved by the Court on April 10, 1975 provides that both parties are to bear their own costs. Defendants argue that this provision bars the plaintiffs from seeking attorneys' fees. When the Court received this consent decree in 1975, it was accompanied by a cover letter from the plaintiffs. In this letter, the plaintiffs stated that the consent decree did not cover the issue of attorneys' fees. Two days later the Court approved the decree. Six days after the Court gave its approval, the defendants sent the Court a copy of a letter addressed to the plaintiffs which stated that the defendants were surprised that the plaintiffs did not believe the consent decree covered the issue of attorneys' fees. Now, two years later, this Court is called upon to interpret the meaning of "costs" as that word is used in the sixth paragraph of the decree.
The Supreme Court has given the following instructions to aid the courts in interpreting consent decrees:
"Since a consent decree or order is to be construed for enforcement purposes basically as a contract, reliance upon certain aids to construction is proper as with any other contract. Such aids include the circumstances surrounding the formation of the consent order, any technical meaning words used may have had to the parties, and any other documents expressly incorporated in the decree." United States v. ITT Continental Baking Co., 420 U.S. 223, 238, 43 L. Ed. 2d 148, 95 S. Ct. 926 (1970).
As the decree in this case was drafted and signed by the attorneys for the parties, this Court believes it proper to look to the legal definition of the word "costs" at the time when the decree was entered. At that time the word "costs" was not defined so as to include attorneys' fees. When a party was awarded costs, this award would not generally include attorneys' fees. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 44 L. Ed. 2d 141, 95 S. Ct. 1612 (1975); Kansas City Southern Railway Co. v. Guardian Trust Co., 281 U.S. 1, 74 L. Ed. 659, 50 S. Ct. 194 (1929). Therefore, as no reason is found to now impose a new definition upon the word "costs" so as to define it to include attorneys' fees, this Court concludes that the consent decree does not bar the parties from seeking attorneys' fees.
Defendants assert that the Attorney's Fees Act does not apply to this case because the attorneys' fees decisions were rendered by this Court and by the Court of Appeals prior to the effective date of the Attorney's Fees Act. However, while this Court recognizes that this Court and the Court of Appeals decided the attorneys' fees question before the Attorney's Fees Act became effective on October 19, 1976, it is also clear that the Attorney's Fees Act applies to cases pending on its effective date. This case was pending on that date. In Bradley v. Richmond School Board, 416 U.S. 696, 40 L. Ed. 2d 476, 94 S. Ct. 2006 (1974), the Supreme Court held that the Emergency School Aid Act's attorney's fees provisions were to be applied to cases pending on the effective date of that Act. Relying on the reasoning in Bradley, the courts which have decided the issue of whether the Civil Rights Attorney's Fees Award Act applies to cases pending on the effective date of the Act have uniformly held that the Act does so apply. See Wharton v. Knefel, 562 F.2d 550 (8th Cir., 1977); Rainey v. Jackson State College, 551 F.2d 672 (5th Cir. 1977); Stanford Daily v. Zurcher, 550 F.2d 464 (9th Cir. 1977). These courts have found, as does this Court, that the legislative history of the Act makes clear that Congress intended the Act to apply to pending cases. See remarks by Senator Abourezk, 122 Cong. Rec. § 17052 (daily ed. Sept. 26, 1972).
Given that the Act applies to cases pending on its effective date, the next question that must be answered is whether this case was pending on October 19, 1976. On that date, this Court and the Court of Appeals already had denied the plaintiffs' petition for attorneys' fees. While the plaintiffs had not yet filed their petition for a writ of certiorari to the United States Supreme Court, the time for filing that petition had not yet expired and the plaintiffs, in fact, timely filed their petition on November 24, 1976. Defendants contend that as the plaintiffs had not filed their petition prior to the effective date of the Act, the case was not pending. This Court disagrees with the defendants' position. In Bradley v. Richmond School Board, 416 U.S. 696, 40 L. Ed. 2d 476, 94 S. Ct. 2006 (1974), the Supreme Court held that generally the law to be applied to cases on direct review -- or, in other words, pending cases -- was the law in effect at the time the reviewing court was deciding the case; the Court distinguished this rule from the rule to be applied in those cases where a final judgment was rendered and was being collaterally attacked because of a change in the law. When final judgments suffer collateral attack, the Court directed that law to be applied was the law as it existed when the final judgment was made. The Court in Bradley defined final judgment:
"By final judgment we mean one where the 'availability of appeal' has been exhausted or lapsed, and the time to petition for ...