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SELLERS v. LOCAL 1598

April 28, 1986

LINDA J. SELLERS
v.
LOCAL 1598, DISTRICT COUNCIL 88, AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES AFL-CIO and FRANK FLATCH, President LOCAL 1598, AFSCME and BENSALEM TOWNSHIP



The opinion of the court was delivered by: KELLY

 KELLY, J.,

 Before addressing these issues, a review of the factual history of this case is necessary. Ms. Sellers is a township employee and a member of the union which operates under a collective bargaining agreement with the township. The township claimed she was suspended without pay for being "excessively late" for work, but Ms. Sellers claimed that the suspension was politically motivated.

 Pursuant to the collective bargaining agreement, Ms. Sellers appealed the suspension. The appeal process has four stages and Ms. Sellers' claims were not satisfied by the first two steps. A step three hearing was to be held in front of the Board of Supervisors. Ms. Sellers believed she would be unable to receive an impartial hearing at the step three proceeding because of political animosity. She commenced suit in this court seeking a temporary restraining order (TRO) to prevent the hearing from taking place, claiming that the hearing violated her procedural due process rights. The TRO was denied. Thereafter, Sellers amended her complaint appending civil rights claims against the union and the township, as well as pendent state law claims. Ms. Sellers sought injunctive and declaratory relief to the effect that she be permitted to retain counsel at the step three proceeding, record that proceeding, and cross-examine her accusers. Ms. Sellers also sought monetary relief and "such other and further relief as may be just."

 The union and the township agreed to waive the step three hearing before the Board of Supervisors and submit Ms. Sellers' grievance to an arbitrator where a full evidentiary hearing would take place. Arbitration was the fourth and final step under the collective bargaining agreement. Pursuant to the collective bargaining agreement, only the union may decide to proceed to arbitration.

 On motions by the parties I dismissed Counts I, II and IV of the complaint as moot. The substance of each of those counts was that the third step of the grievance procedure deprived her of due process. Specifically, I held that "by offering Ms. Sellers the opportunity to present her grievance in a forum which allows for a full evidentiary hearing along with an impartial arbitrator, the defendants have supplied relief which eradicates the effects of the alleged violations." Sellers v. Local 1598, 600 F. Supp. 1205, 1209 (E.D. Pa. 1984). In Count III of the complaint Ms. Sellers claims she was entitled to a pre-suspension hearing. I found that a pre-suspension hearing was not warranted by the fourteenth amendment and dismissed the claim. Id. at 1211. Count IV of the complaint stated that because of her political affiliation, defendants conspired to deny her equal protection of the laws in violation of 42 U.S.C. § 1985(3). I found that Section 1985(3) does not cover an alleged politically motivated conspiracy and dismissed that count. Id. at 1212. Since no federal causes remained, I declined to exercise jurisdiction over the pendent state claims in Count IV. Id. Further, I stated that "because plaintiff is without a cause of action under 42 U.S.C. §§ 1983, 1985 or 1986, her motion for attorney's fees under 42 U.S.C. § 1988 will be denied." Id.

 MOTION TO VACATE

 This court held that "because plaintiff is without a cause of action under 42 U.S.C. § 1983, 1985, and 1986, her motion for attorney fees under 1988 will be denied." 600 F. Supp. 1205, 1212 (E.D. Pa. 1984). Ms. Sellers asserts she raised Sections 1983, 1985, 1986 and 1988 in the amended complaint, but at no time presented a written or oral motion for fees. She asserts that her due process rights to prior notice and opportunity to be heard were denied by the court's sua sponte motion. Hence, Ms. Sellers requests that the judgment be set aside pursuant either to Fed. R. Civ. P. 60(b)(4) or Fed. R. Civ. P. 60(b)(6). *fn1"

 I need not reach the merits of plaintiff's motion to vacate because my Order of December 14, 1984 did not preclude the plaintiff from requesting fees. A request for fees is made collateral and subsequent to a determination in the underlying suit. See White v. New Hampshire Department of Employment Security, 455 U.S. 445, 71 L. Ed. 2d 325, 102 S. Ct. 1162 (1982). Section 1988 is not a remedial statute but, rather, compliments the remedial civil rights sections, namely 42 U.S.C. §§ 1983, 1985 and 1986. As counsel and this court are aware, before a fee determination is made, there must be a request before the court which particularizes the lodestar computation. Despite the language in my prior Memorandum, there was no such request or motion before the court when the Order was entered. Moreover, the Order dismissing the plaintiff's complaint did not address the Section 1988 request. Because there was no prior motion for fees by plaintiff and because the court did not foreclose the issue by rendering a final or judgment order to that effect, there is no reason to vacate my prior judgment.

 ATTORNEY FEES

 Title 42 U.S.C. § 1988 provides: in "any action or proceeding to enforce a provision of Section 1981, 1983, 1985, and 1986 of this title, . . . 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."

 Initially, the defendants question the timeliness of the plaintiff's request. Over one year has passed since judgment was entered. There is no specific time limit on a request made pursuant to Section 1988. See White 455 U.S. at 452 (Section 1988 is not a motion to alter or amend a judgment subject to the time constraints of Fed. R. Civ. P. 59(e)). However, in White, the court indicated that an award of fees is in the discretion of the court and that a denial of fees will ...


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