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KULKARNI v. NYQUIST

June 3, 1977

Dilip V. KULKARNI, Plaintiff,
v.
Ewald NYQUIST and Raymond Salman, Defendants. Aase JACKSON, Plaintiff, v. Ewald NYQUIST and Raymond Salman, Defendants.



The opinion of the court was delivered by: FOLEY

JAMES T. FOLEY, Chief Judge.

MEMORANDUM - DECISION and ORDER

 By an earlier Memorandum - Decision and Rder of this Court dated January 5, 1977, Sections 7206.1(6) and 6534(6) of the New York Education Law were held to contravene the Equal Protection Clause of the Fourteenth Amendment. At that time, I further enjoined the named defendants herein from implementing or enforcing these said provisions which required United States citizenship or a declaration of intent to obtain United States citizenship as a condition to professional licensure for their respective professions. Kulkarni v. Nyquist, 76-CV-344, 446 F. Supp. 1269 (N.D.N.Y., filed Jan. 5, 1977); Jackson v. Nyquist, 76-CV-360, 446 F. Supp. 1269 (N.D.N.Y., filed Jan. 5, 1977). A Notice of Appeal was filed, but by stipulation the motion for a stay was withdrawn, and subsequently the Court of Appeals, Second Circuit, dismissed the appeal.

 Now before the Court is a motion by Thomas R. Litwack, counsel for the prevailing parties, and Associate Staff Attorney for the New York Civil Liberties Union, seeking an award of attorney's fees pursuant to the Civil Rights Attorney's Fees Awards Act of 1976. 42 U.S.C. § 1988, as amended, eff. October 19, 1976.

 This is a matter of first impression in this Court; and, given the recent effective date of this legislation - October 19, 1976 - there is a sacarcity of case law thereunder. See e.g. Wade v. Mississippi Co-Op Extension Service, 424 F. Supp. 1242 (N.D.Miss. 1976); see Davis v. Reed, 72 F.R.D. 644 (N.D.Miss. 1976).

 Nevertheless, the parties have raised and briefed several issues which the Court will consider herein:

 (1) does the Civil Rights Attorney's Fees Awards Act of 1976 apply to cases pendente lite;

 (2) does the Eleventh Amendment bar an award of attorney's fees; and,

 (3) is a legal services organization entitled to an award of attorney's fees under the Civil Rights Attorney's Fees Awards Act of 1976; and, if so, what is a "reasonable" award in this situation.

 Application of 42 U.S.C. § 1988, as amended, to Cases Pendente Lite

 The complaints in Kulkarni and Jackson were filed on August 24 and September 7, 1976, respectively. By stipulation of counsel and by order of this court, these actions were consolidated on October 14, 1976. The statute, Section 1988, as amended, became effective on October 19, 1976. It is the defendants' contention that since these cases were commenced prior to the effective date of Section 1988, as amended, the applicable law was the Supreme Court's decision in Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975), which held that attorney's fees were not recoverable in "private attorney general" type litigation absent congressional authorization. For reasons hereafter stated it is my judgment that defendants' contentions in this regard are without merit.

 The amended pertinent portion of Section 1988 provides:

 In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985 and 1986 of this title, title IX of Public Law 92-318, or in any civil action or proceeding by or in any civil action or proceeding by or on behalf of the United States of America, to enforce, or charging a violation of, a provision of the United States Internal Revenue Code, or 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 (emphasis supplied).

 As a threshold matter, it seems clear that the purpose of this statute is to provide the necessary explicit congressional authorization contemplated by Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975), for the grant of attorney's fees under the various civil rights statutes. This conclusion seems incontrovertible, being reinforced by an examination of the statute's documented legislative history:

 The purpose of this amendment is to remedy anomalous gaps in our civil rights laws created by the United States Supreme Court's recent decision in Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240 [95 S. Ct. 1612, 44 L. Ed. 2d 141] (1975) and to achieve consistency in our civil rights laws. The purpose and effect... 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.S.Rep.No.94-1011, U.S.Code Cong. & Admin.News 1976, pp. 5909-10.

 More importantly, however, the Civil Rights Attorney's Fees Awards Act of 1976 adopts the Newman-Northcross rationale that private parties who initiate civil rights litigation are "private attorney generals" vindicating a public policy to which Congress attached the highest priority. See Northcross v. Memphis Board of Education, 412 U.S. 427, 93 S. Ct. 2201, 37 L. Ed. 2d 48 (1973); Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S. Ct. 964, 19 L. Ed. 2d 1263 (1968). See also U.S.Code Cong. & Admin.News 1976, pp. 5910-12.

 The consequences of this development are twofold. First, it overcomes the effects of the "American rule," see Alyeska Pipeline Co. v. Wilderness Society, supra 421 U.S. at 247, 95 S. Ct. 1612, by providing that the successful plaintiff "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." Newman v. Piggie Park Enterprises, Inc., supra 390 U.S. at 402, 88 S. Ct. at 966; U.S.Code Cong. & Admin. News 1976, p. 5912.

 Secondly, the similarity of language in Section 1988, as amended, compared with that found in other provisions of the civil rights acts which permit the recovery of attorney's fees - 42 U.S.C. §§ 1973 2000a-3(b), 2000e-5(k), 3612(c), and 20 U.S.C. § 1617 - "is, of course, a strong indication that [these statutes] should be interpreted pari passu." Northcross v. Memphis Board of Education, supra 412 U.S. at 428, 93 S. Ct. at 2202.

 In order to resolve the question of whether attorney's fees under Section 1988, as amended, may be awarded pendente lite, the inquiry begins with the leading case of Bradley v. School Board of the City of Richmond, 416 U.S. 696, 94 S. Ct. 2006, 40 L. Ed. 2d 476 (1974).

 Bradley was a protracted school desegregation case, initiated in 1961, and for which attorney's fees were awarded by the district court prior to the enactment of 20 U.S.C. § 1617. The Court of Appeals, Fourth Circuit, held, in part, that because of the absence of pending or appealable orders both when the district court made its award, ...


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