The opinion of the court was delivered by: BONSAL
Rios v. Enterprise Association Steamfitters Local 638 of U.A., 400 F. Supp. 983, was instituted on February 26, 1971 as a class action wherein four non-white workers alleged violations by defendants of Title VII of the Civil Rights Act of 1964, as amended. United States v. Enterprise Association Steamfitters Local 638 of U.A., 71 Civ. 2877, (hereinafter referred to as the "government action") was filed by the Attorney General on June 29, 1971, pursuant to his authority under Title VII, 42 U.S.C. § 2000e-6(a). The Equal Employment Opportunity Commission ("EEOC") was substituted as plaintiff in the government action on April 16, 1974 pursuant to F.R.Civ.P. 25. These actions were consolidated for the purposes of trial and tried before this Court. The prior proceedings are reported at Rios v. Enterprise Association Steamfitters Local 638 of U.A., 400 F. Supp. 983 (S.D.N.Y. 1975); United States v. Local 638, Enterprise Association of Steam, etc., 360 F. Supp. 979 (S.D.N.Y. 1973), aff'd but remanded in part, 501 F.2d 622 (2d Cir. 1974); United States v. Local 638, etc., 337 F. Supp. 217 (S.D.N.Y. 1972); Rios v. Enterprise Association Steamfitters Local Union No. 638 of U.A., 326 F. Supp. 198 (S.D.N.Y. 1971); Rios v. Enterprise Association Steamfitters Local Union #638 of U.A., 54 F.R.D. 234 (S.D.N.Y. 1971).
The Rios plaintiffs move for attorneys' fees of $128,092.50 for their attorneys the National Employment Law Project (hereinafter the "Project"), for $2,043.15 in disbursements and for $3,601.49 in costs. The EEOC moves for $6,014.45 in costs incurred in pursuing its action. Defendants oppose these motions.
Services Rendered by the Project
The Project states that it is a "law office funded through the Council of New York Law Associates' Charitable Trust . . . pursuant [primarily] to grants from the United States Office of Economic Opportunity ("OEO") and [in small part] from Trinity Church in the City of New York for the purposes of providing assistance in the area of employment law to legal services attorneys and of representing the poor in connection with employment-related legal problems." In addition, the Project receives a significant portion of its funds pursuant to contracts with the EEOC.
The Project instituted the Rios action several months prior to the filing of the government action. On March 24, 1971 Judge Frankel issued a preliminary injunction. 326 F. Supp. 198 (S.D.N.Y. 1971). The Order of this Court filed on June 21, 1973 in the government action contained findings of fact which were based upon evidence obtained in part from answers to interrogatories propounded by the Project attorneys in Rios prior to the institution of the government action, in part from depositions taken by the Project attorneys and in part from testimony given by expert witnesses called by the Project attorneys at the consolidated trial of the Rios and the government actions.
The applicable statute in Title VII actions, 42 U.S.C. § 2000e-5(k), provides:
"In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the [EEOC] or the United States, a reasonable attorney's fee as part of the costs . . . ."
Attorneys' fees have been awarded in Title VII cases where the plaintiffs have been successful in obtaining the relief sought, see Duhon v. Goodyear Tire & Rubber Co., Beaumont Plant, 494 F.2d 817 (5th Cir. 1974) and cases cited therein, unless there are "special circumstances which would render such an award unjust." See also Northcross v. Board of Education of Memphis City Schools, 412 U.S. 427, 37 L. Ed. 2d 48, 93 S. Ct. 2201 (1973) (desegregation suit under Emergency School Aid Act of 1972); Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 19 L. Ed. 2d 1263, 88 S. Ct. 964 (1968) (Title II of the Civil Rights Act of 1964).
While the cases appear to be divided as to whether the statutory exception as to awards of attorneys' fees to the EEOC and the United States applies to public interest attorneys such as the Project (see Hoitt v. Vitek, 495 F.2d 219 (1st Cir. 1974); Woolfolk v. Brown, 358 F. Supp. 524, 535 (E.D. Va. 1973); Gaddis v. Wyman, 336 F. Supp. 1225, 1227-28 (S.D.N.Y. 1972); Doe v. Osteopathic Hospital of Wichita, Inc., 333 F. Supp. 1357, 1363 (D. Kan. 1971)), here an award of reasonable attorneys' fees to the Project is permissible and appropriate.
See Doe v. Osteopathic Hospital of Wichita, Inc., supra. Plaintiffs were the "prevailing party" and the grant of an attorneys' fee is precluded only to the EEOC or the United States. Fee arrangements, if any, between the prevailing party and its attorneys are immaterial. See Clark v. American Marine Corp., 320 F. Supp. 709 (E.D. La. 1970), aff'd on opinion below, 437 F.2d 959 (5th Cir. 1971). See also Hairston v. R & R Apartments, 510 F.2d 1090 (7th Cir. 1975); Fairley v. Patterson, 493 F.2d 598, 606 (5th Cir. 1974); Miller v. Amusement Enterprises, Inc., 426 F.2d 534, 538-39 (5th Cir. 1970).
There are obvious distinctions between the EEOC or the "United States," which are precluded from recovering attorneys' fees under Title VII, and the Project. The Project attorneys are not government employees, do not enjoy the protections of the civil service laws or of legislatively mandated salaries, and do not represent the ...