The opinion of the court was delivered by: HUYETT
Before me is the plaintiffs' petition for attorneys' fees and costs. The petition seeks an award of fees pursuant to the Civil Rights Attorneys' Fees Award Act (Fees Act), 42 U.S.C. § 1988. The defendants dispute whether the plaintiffs are prevailing parties within the meaning of the Fees Act. In addition, the defendants challenge the amount of fees sought by David Ferleger, counsel for the plaintiff class, and Herbert B. Newberg, who prepared the fee petition. For the reasons stated below, I conclude that the plaintiffs have prevailed in part within the meaning of the Fees Act. Therefore, Mr. Ferleger and Mr. Newberger are entitled to recover fees. However, I have reduced the amount of fees to be awarded.
I. Plaintiffs As Prevailing Parties
The plaintiffs challenged the law of Pennsylvania relating to "voluntary" admissions and commitments of juveniles to mental health and mental retardation facilities. The language of the 1966 Act permits parents or persons standing in loco parentis to "voluntarily" admit or commit a juvenile to such a facility. The 1966 Act requires only that the director of the facility cause an examination to be made. If, as a result of that examination, it is determined that the juvenile is in need of care or observation, the juvenile may be admitted or committed.
After the plaintiffs' suit was initiated, the Secretary promulgated regulations implementing the 1966 Act. These regulations became effective on September 1, 1973. 3 Pa. Bull 1840 (1973) (1973 Regulations). The regulations give some procedural rights to all juveniles and additional rights to juveniles ages thirteen and over. The regulations permit admission or commitment of a juvenile only upon referral by either a pediatrician, general physician, or psychologist. They also require an independent examination by the Director of the Institution or his delegate. Under the 1973 Regulations, juveniles 13 and older are given notification of their rights, the telephone number of counsel, and the right to institute an involuntary commitment proceeding in court within two business days. The plaintiffs contended that the procedures contained in the 1966 Act and 1973 Regulations are inadequate. They argued that due process requires a pre-commitment adversary hearing as well as other rights. Accordingly, they contended that sections 4402 and 4403 of the 1966 Act and the 1973 Regulations are unconstitutional.
After extensive discovery, we permitted the case to be maintained as a class action. See Bartley v. Kremens, No. 72-2272 (E.D. Pa. April 29, 1974). A three-day trial was held on September 9, 11, and October 7, 1974. Three expert psychiatrists testified for the plaintiffs and three for the defendants. Extensive facts were placed in the record by stipulation.
On July 24, 1975, the court with one judge dissenting issued its opinion awarding the plaintiffs some but not all of the relief they sought. See 402 F. Supp. at 1053-54 (summarizing relief sought by plaintiffs). In particular, we denied the plaintiffs' request for a precommitment hearing. We concluded that due process was satisfied if a child received a probable cause hearing within 72 hours after commitment. This hearing was to be followed by a post-commitment hearing before an unbiased tribunal on the need for commitment. We further stated that due process required that a child receive written notice including the date, time, and place of the hearing and a statement of the grounds for the proposed commitment. We also held that a child had a right to be present at the hearing, to be represented by counsel, and if indigent, to have counsel appointed free of charge. Finally, we held that the plaintiffs were entitled to confront and cross-examine the witnesses against them, to offer evidence in their own behalf, and not to be confined except upon a finding by clear and convincing proof that they were in need of institutionalization. Accordingly, we declared sections 4402 and 4403 of the 1966 Act to be unconstitutional on their face and as applied to all members of the plaintiff class.
The defendants appealed our decision. On March 22, 1976, the Supreme Court of the United States noted probable jurisdiction. Kremens v. Bartley, 424 U.S. 964, 47 L. Ed. 2d 731, 96 S. Ct. 1457 (1976). The case was heard by the Court on December 1, 1977. On July 9, 1976, after the decision of the three-judge court, but before the case was heard by the Supreme Court, Pennsylvania enacted the Mental Health Procedures Act of 1976 (1976 Act). 50 Pa. Stat. Ann. § 7101. The 1976 Act replaces the 1966 Act so far as mentally ill juveniles are concerned. The 1966 Act continues to apply to mentally retarded juveniles. Passage of the 1976 Act provided those plaintiffs 14 years of age or older, who purportedly were mentally ill, with all the relief they sought in this action. The Act, in essence, treats juveniles 14 years of age and older as adults. As a result their parents may not voluntarily commit them and if the juveniles voluntarily commit themselves, they may withdraw at any time by giving written notice. Kremens v. Bartley, 431 U.S. 119, 129, 52 L. Ed. 2d 184, 97 S. Ct. 1709 (1976). Based upon the 1976 Act, the Supreme Court concluded that the claims of the named plaintiffs were moot. The case was remanded for substitution of new plaintiffs and reconsideration of the class definition.
Again significant work was required of plaintiffs' counsel to prepare the case. On remand, on behalf of allegedly mentally retarded members of the class, the plaintiffs again challenged the constitutionality of the 1966 Act and the 1973 Regulations. On behalf of allegedly mentally ill members of the class, the plaintiffs challenged the 1976 Act but only with respect to its treatment of juveniles under the age of 14. In March of 1978, supplemental evidence was received. The three-judge court issued its second decision on May 25, 1978, again with one judge dissenting. See Institutionalized Juveniles v. Secretary of Public Welfare, 459 F. Supp. 30 (E.D. Pa. 1978). We adhered to our earlier decision regarding the procedures and rights to which we concluded juveniles were entitled under the due process clause. We declared the 1966 Act, the 1973 Regulations, and the 1976 Act unconstitutional in that they failed to provide mentally ill juveniles under the age of fourteen and mentally retarded juveniles under the age of eighteen with all the rights to which we previously had found them to be entitled.
The defendants again appealed our decision to the Supreme Court. The second argument before the Supreme Court was held on October 10, 1978. Prior to the Supreme Court's decision in Institutionalized Juveniles, the Secretary promulgated new regulations implementing the 1976 Act. 8 Pa. Bull. 2432 (1978) (1978 Regulations). The 1978 Regulations provide that each child shall be reexamined and his or her treatment plan reviewed not less than once every 30 days. The regulations also permit a child to object to the treatment plan and thereby obtain a review by a mental health professional independent of the treatment team. The findings of this person are reported directly to the director of the hospital who has the power and the obligation to release any child who no longer needs institutionalization. 8 Pa. Bull. 2436 (1978).
The case was consolidated for hearing before the Court with Parham v. J.R. On June 20, 1979, the Court issued opinions in both cases. See Secretary of Public Welfare v. Institutionalized Juveniles, 442 U.S. 640, 61 L. Ed. 2d 142, 99 S. Ct. 2523 (1979); Parham v. J.R., 442 U.S. 584, 61 L. Ed. 2d 101, 99 S. Ct. 2493 (1979). In the Parham case, the Court dealt with a general statute which necessitated a general discussion of the requirements of due process. In Institutionalized Juveniles, on the other hand, the Court recognized that it was dealing with a statutory and regulatory system which had very specific provisions. The Court carefully reviewed the 1976 Act as implemented by the 1978 Regulations and 1966 Act as implemented by the 1973 Regulations. The Court concluded that Pennsylvania law as it stood at the time of its decision fully complied with due process. 442 U.S. at 649. The Court specifically held that "this program meets the criteria of our holding in Parham." Id. at 650. The case was reversed and remanded for proceedings not inconsistent with the Court's opinion.
Following remand from the Supreme Court, the plaintiffs moved for the appointment of a special master to investigate the validity of the individual commitments. The plaintiffs also desired to amend their complaint to challenge post-admission procedures. We concluded that it was not appropriate to continue the action as a class action. We also concluded that an appointment of a master was not appropriate. Finally, we held that since the Supreme Court had resolved the plaintiffs' constitutional claims, there was no longer any reason to bring the case before a three-judge court. Accordingly, the three-judge court was dissolved. The action was remanded to me for all remaining proceedings. Judgment was entered in favor of the defendants and against the plaintiffs. Institutionalized Juveniles v. Secretary of Public Welfare, 87 F.R.D. 463 (E.D. Pa. 1980).
B. Plaintiffs Essentially Succeeded
Despite the fact that judgment was entered in favor of the defendants, the plaintiffs are not automatically precluded from an award of attorneys fees. See N.A.A.C.P. v. Wilmington Medical Center, 689 F.2d 1161, 1166 (3d Cir. 1982). The form of the judgment does not determine who is a prevailing party for purposes of the Fees Act. The standard for determining if a plaintiff is a prevailing party is whether the plaintiff "achieved 'some of the benefit sought'" in bringing the suit. Id. at 1167 (quoting Bagby v. Beal, 606 F.2d 411, 415 (3d Cir. 1979)).
In Ross v. Horn, the Third Circuit decided the question "whether a plaintiff is entitled to counsel fees where procedures have been changed subsequent to the filing of the plaintiff's lawsuit, but when there has been no formal judgment or settlement decree mandating such changes." Ross v. Horn, 598 F.2d 1312, 1314 (3d Cir. 1979), cert. denied, 448 U.S. 906, 65 L. Ed. 2d 1136, 100 S. Ct. 3048 (1980). In Ross, a judgment had been entered in favor of the defendants, however, the court of appeals refused to give "conclusive weight to the form of the judgment." Id. at 1322. The court looked instead to the "substance of the litigation's outcome." Id. It held
If the new procedures, which provided much of the relief appellants had initially sought, were implemented as a result of this lawsuit, the appellants were prevailing parties with respect to a portion of their claims (which claims were thereby effectively mooted) ...