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April 14, 1980

William Bolden, III et al., Plaintiffs
Pennsylvania State Police et al., Defendants.

The opinion of the court was delivered by: GREEN


On November 16, 1973, plaintiff William H. Bolden, III and others commenced this class action to bring an end to pervasive racial discrimination in the hiring and promotion practices of the Pennsylvania State Police. Despite settlement of the class claims by consent judgment on June 20, 1974, litigation concerning various aspects of the suit has continued to this day. We now consider plaintiffs' request for an award of counsel fees and costs to their attorney, Community Legal Services, Inc. ("CLS"). Recovery is sought only from the Commonwealth defendants in their official capacities (hereinafter "defendants") and only on issues with respect to which plaintiffs were prevailing parties against those defendants. *fn1"


 This historic suit charged the Pennsylvania State Police and several state officials with violating plaintiffs' rights under the thirteenth and fourteenth amendments to the United States Constitution and under 42 U.S.C. §§ 1981, 1983, 1985(3) and 1988. As we summarized the underlying facts earlier, "(t)he evidence . . . of racial discrimination by the Pennsylvania State Police was overwhelming." Oburn v. Shapp, 393 F. Supp. 561, 573 (E.D.Pa.1975), aff'd, 521 F.2d 142 (3d Cir. 1975). From 1905 to 1956 the Pennsylvania State Police had no black troopers. By the time this action was commenced, there were only sixty-two (62) minorities employed by the State Police out of a total complement of 4,173. While minorities comprised 10.8% of all employees of the Commonwealth of Pennsylvania, they constituted merely 1.48% of the Pennsylvania State Police force. Moreover, of the sixty-two minorities on the Force at the time the suit was brought, sixty were relegated to the lowest rank, that of trooper. Once additional evidence of racial discrimination was revealed by discovery, defendants stipulated that the Commonwealth was aware of the problem. The stipulation said further that certain defendants had attempted to remedy the discrimination but had encountered resistance from the State Police.

 By agreement of the parties, the individual claims for relief filed by intervening plaintiffs with respect to hiring were not resolved by the consent decree. Instead, those claims were severed for case-by-case disposition. Either by settlement or by litigation, plaintiffs prevailed again.

 For its efforts in successfully prosecuting both the individual and the class claims, CLS has been seeking attorneys' fees at least on an amicable basis since October 1974. As the Court's opinion today illustrates, those informal attempts at resolving the matter have failed. On July 25, 1978, plaintiffs filed with the Court their motion for counsel fees and costs. The Commonwealth defendants filed an opposition on August 7, 1978, and one week later, on August 15, 1978, they initiated their first and only discovery effort. Plaintiffs answered defendants' interrogatories and requests for production of documents on September 11, 1978, and, supplementally, on September 29, 1978.

 With consent of counsel, we informally held plaintiffs' motion in abeyance pending a change in the elected officers of the Commonwealth and the appointment of new counsel for the defendants. Defendants' current counsel entered his appearance on June 11, 1979. On August 17, 1979, defendants filed another memorandum of law addressed to the fee petition and, for the first time, requested the Court to hold an evidentiary hearing.

 We granted the request and scheduled an evidentiary hearing to adjudicate any factual disputes relevant to plaintiffs' fee petition. See generally, Lindy Bros. Builders v. American Radiator and Standard Sanitary Corp., 487 F.2d 161, 169 (3d Cir. 1974) (Lindy I ). Upon commencement of the hearing, however, defendants presented to the Court a stipulation stating that they did not proffer, nor did they intend to proffer, any witnesses or exhibits in opposition to the fee motion. Since defendants had offered no evidence earlier, the factual record now before the Court, by express agreement of the parties, consists solely of evidence offered by plaintiffs.


 Plaintiffs predicate their entitlement to a fee award mainly on the 1976 Civil Rights Attorneys' Fees Awards Act, 42 U.S.C. § 1988, as amended. Alternatively, they argue that the award is authorized either by section 706(k) of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e-5(k) (as amended), *fn2" or by the bad faith and common benefit exceptions to the American Rule on counsel fees. Because we find an explicit statutory basis for the award in the 1976 Fees Awards Act, we need not decide and will not discuss the alternative theories presented by plaintiffs.

 The 1976 Fees Awards Act provides, in pertinent part:

. . . In any action or proceeding to enforce a provision of sections (1977, 1978, 1979, 1980 and 1971 of the Revised Statutes) . . . 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. Pub. L. 94-559, 42 U.S.C. § 1988, as amended.

 Defendants concede that Congress intended the Act to be applicable to cases that were pending on its effective date, October 19, 1976. Hutto Finney, 437 U.S. 678, 98 S. Ct. 2565, 2572 n. 23, 57 L. Ed. 2d 522. For purposes of applying the Act, however, they argue that Bolden should be treated as two distinct cases a class action and an action consisting of the individual claims of the intervening plaintiffs. Since the class action was reduced to final judgment by the consent decree on June 20, 1974, defendants contend that the class "case" was not pending when the Act became effective and, hence, litigation of the class claims is noncompensable.

 We assume, arguendo, that Bolden may be bifurcated into two cases as defendants suggest. Even so, we cannot conclude that the class action terminated in the consent decree. In providing relief to the class, the consent decree expressly contemplated a continuing judicial proceeding. At the outset, defendants were required to use interim hiring and promotion goals while they developed nondiscriminatory, job-related standards for employment with the Pennsylvania State Police. *fn3" Once the new standards were developed, defendants were ordered to submit evidence of their validity to both plaintiffs and the Court. *fn4" Only if the Court found, after an evidentiary hearing, that the standards were in fact valid and job-related could defendants institute them in the selection and promotion of Pennsylvania State Police Officers. *fn5"

 To this day, defendants are still operating under the interim employment goals. Nearly six years after entry of the 1974 consent judgment and four years after passage of the 1976 Fees Awards Act, implementation of the class relief remains in the initial stage. Nor have plaintiffs been responsible for the delay in any way. Defendants simply have not fulfilled their obligation to develop and present to the Court evidence of valid, nondiscriminatory employment standards.

 It follows that, when the Act became effective, the class case in Bolden was not "pending only in the technical sense that jurisdiction to enter such further orders as were necessary and desirable had been retained." See Wheeler v. Durham City Board of Education, 585 F.2d 618, 623 (4th Cir. 1978). It was pending because the parties themselves had provided for further judicial proceedings and those proceedings had not yet occurred. For this reason, we find that the Act is applicable to both the class and the individual claims in Bolden.

 Having decided the threshold question of the Act's applicability, we turn to the central issue in this action, whether plaintiffs are entitled to an award of attorneys' fees. Generally, prevailing plaintiffs should recover fees under the Act unless special circumstances would make the result unjust. See Senate Report No. 94-1011, 94th Cong., 2nd Sess. 2, U.S.Code Cong. & Admin.News 1976, p. 5908; see also Hughes v. Repko, 578 F.2d 483, 490 (3d Cir. 1978) (concurrence of Rosenn, J.). It is undisputed that plaintiffs have prevailed on both the class and the individual issues for which they seek compensation. *fn6" Defendants contend, however, that plaintiffs have waived their right to a fee award.

 The first basis for a waiver cited by defendants is section VII of the consent decree. That ...

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