Project v. Hospital Staff Civil Rights Committee, supra; Meisel v. Kremens, supra; Gary W. v. State of Louisiana, supra at 712-713; Wade v. Mississippi Co-op Extension Service, supra at 1254-1255.
The only case to date, which has held otherwise, is one of the three cases on point decided in this Circuit. Skehan v. Board of Trustees of Bloomsburg State College, 436 F. Supp. 657 (M.D.Pa. 1977). In that case, the court refused to subject state officials to an award of attorneys' fees absent express language in the statutes, authorizing such an award. Refusing to find sufficient authorization in the legislative history, the court, distinguished Bitzer on the grounds that the Equal Employment Opportunity Act of 1974 expressly amended Title VII to permit actions against state employers for back pay and attorneys' fees in employment discrimination suits.
I agree with Judge Muir that abrogation of the eleventh amendment should not be read lightly into a Congressional enactment. However, a review of the legislative background of this particular Act leads to the conclusion that it was clearly the intent of Congress to authorize an award of attorneys' fees to a prevailing plaintiff in a suit brought against state officials to enforce the provisions of the earlier Civil Rights Acts, 42 U.S.C. § 1981 et seq. See S.Rep. No. 94-1011, 94th Cong., 2d Sess. (1976), U.S. Code Cong. & Admin. News, p. 5913, 6343 (1976); H. R. Report No. 94-1558, 94th Cong., 2d Sess., p. 7 n. 14 (1976).
Ignoring this legislative history would, I believe, limit the decision in Bitzer beyond that intended by the Court. The intent of Congress is sufficiently clear and unambiguous to satisfy the authorization required by Bitzer. Furthermore, a cause of action pursuant to § 1983 requires state action which in the majority of such cases is supplied by the fact that the named defendants are state officials acting on behalf of the state. Bond v. Stanton, 555 F.2d at 174. The purpose of the Act would be all but obliterated, if it were construed to allow an award of attorneys' fees only in those relatively few cases wherein the named defendants are solely private entities.
As the defendants correctly point out, a state and its agencies and municipalities are not "persons" within the meaning of § 1983 and are not therefore subject to liability for violations of that section. Monroe v. Pape, 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961). However, defendants' reliance upon that principle as the gravamen for their argument that Congress misconstrued the decision in Bitzer fails to take into account that state officials are "persons" within the meaning of § 1983 and are, therefore, subject to liability for actions in violation of that section.
The named defendants were proper parties in this § 1983 action and Congress properly relying upon the holding in Bitzer, authorized an award of attorneys' fees in an action brought to enforce the provisions of that section despite any impact such an award may have upon the state treasury.
4. Community Legal Services
Defendants' contention that Community Legal Services (CLS), as a publicly funded organization, established for the purpose of providing free legal services to the financially needy, is not entitled to recover attorneys' fees is rejected for the reasons stated in Rodriguez v. Taylor, 420 F. Supp. 893 (E.D.Pa. 1976), aff'd in part 569 F.2d 1231 (3d Cir. 1977); see Lund v. Affleck, supra.
III. Reasonable Attorneys' Fees
The Senate Report suggests that the proper standards to apply in determining a reasonable fee in cases of this nature, are those which were applied in cases such as the Stanford Daily v. Zurcher, 64 F.R.D. 680 (N.D.Cal. 1974). S.Rep. No. 94-1011, 94th Cong., 2d Sess.p. 6, U.S. Code Cong. & Admin. News (1976), p. 5913. That case applied the factors enumerated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), within the framework suggested by Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d Cir. 1973) (Lindy I).
Following the course outlined in Zurcher and the dictates of Lindy I and Lindy II,9 the following factors will be considered in reaching a reasonable award of attorneys' fees in this case:
1. The actual amount of time devoted to the litigation. The number of hours spent, by whom and in what manner.
2. A determination of a reasonable hourly rate for the time and activities performed.