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ISAACS v. TEMPLE UNIV.

March 16, 1979

Mark ISAACS and Margaret W. Isaacs
v.
TEMPLE UNIVERSITY et al.



The opinion of the court was delivered by: VANARTSDALEN

MEMORANDUM AND ORDER

Plaintiffs filed a civil rights action against Temple University and various individuals who were members of Temple University's teaching and/or administrative staff. Plaintiffs alleged that their respective terminations as employees of Temple University violated their substantive and procedural due process rights and their right of freedom of speech.

 Defendants' motion for summary judgment for failure of plaintiffs to establish the requisite "state action" was denied in a landmark decision by Hon. A. Leon Higginbotham, Jr., reported in 385 F. Supp. 473 (E.D.Pa.1974). Upon Judge Higginbotham's appointment to the Court of Appeals, the case was reassigned to me. The case was tried upon a waiver of a jury trial and the trial lasted approximately two weeks. At the conclusion of the trial, I made findings of fact and conclusions of law, and on August 26, 1977 entered judgment in favor of the defendants on all issues.

 On September 8, 1977, defendants filed a petition for the award of counsel fees. No ruling has been made on the petition, pending final outcome of the appellate process. The Court of Appeals for the Third Circuit affirmed by judgment order dated September 7, 1978 and I have been informed that the Supreme Court denied a petition for certiorari on February 20, 1979. Defendants presently seek a ruling on their petition for counsel fees.

 The petition for attorneys' fees contains the names of the lawyers and paralegals performing the services. There is no itemization of the nature of the services rendered by each. The dates services were rendered are not itemized. For example, it shows a date of "11/74 Robert J. Fields 90.25 hours." Another example is "12/76 3/77 George E. Moore 150.2 hours." The petition contains a statement that "on the basis of their normal hourly billing rates at the various times in question, the total fee for the hours indicated above is as follows:

 TABLE

 The petition is entirely too meager in detail to permit an award of any fee, or even to ascertain the beginning "lodestar" figure. It fails in many respects to comply with the requisites set forth in "Lindy I" and "Lindy II." Lindy Brothers Builders, Inc. v. American Radiator and Standard Sanitary Corp., 540 F.2d 102 (3d Cir. 1976) (Lindy II), and 487 F.2d 161 (3d Cir. 1973) (Lindy I). I have no doubt, however, that the deficiencies could and would be corrected by amendment or through supplement by way of introducing evidence upon a hearing.

 Because the record has not yet been returned by the appellate court, I do not have the contents of the plaintiffs' formal answer or pleading to the petition. Plaintiffs have, however, recently addressed a letter, by way of an informal answer to the defendants' renewed application to determine the attorneys' fees petition. That letter shall be docketed and filed.

 Before determining the amount of any attorneys' fee to be awarded in this case, it is appropriate first to determine whether the award of any attorneys' fee should be made. In determining this issue, I rely solely upon the established record, without reference to the letter from the plaintiffs. That letter contains assertions of fact not presently of record; the assertions are not by way of affidavit; defendants have had no opportunity to cross-examine as to these assertions.

 Partly in response to Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975), Congress amended 42 U.S.C. § 1988 to provide that the "prevailing party" in certain civil rights actions could be awarded a reasonable attorney's fee, in the court's discretion.

 
In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985 and 1986 of this title . . . or in any civil action or proceeding by or on behalf of the United States of America, to enforce, or charging a violation of . . . title VI of the Civil Rights Act of 1964, 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.

 There is no doubt that the statute is applicable to this case which proceeded to trial on the basis, Inter alia, of a violation of 42 U.S.C. § 1983. There is no doubt that in appropriate cases a "prevailing party" defendant is entitled to an award of an attorney's fee. There is no doubt that defendants in this case were "prevailing parties." There is no doubt that the award of counsel fees is a matter of the court's discretion rather than an absolute right.

 The statute is silent as to what considerations should go into determining whether to award or deny attorneys' fees. I turn, therefore, to the legislative history for guidance, as reported in 1976 U.S.Code Cong. and Admin.News at 5909, Et seq.:

 
The purpose and effect of S. 2278 are simple it is designed to allow courts to provide the familiar remedy of reasonable counsel fees to prevailing parties in suits to enforce the civil rights acts which Congress has passed since 1866 . . . All of these civil rights laws depend heavily upon private enforcement, and fee awards have proved an essential remedy if private citizens are to have ...

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