The opinion of the court was delivered by: PIERCE
Attorneys for plaintiffs in the above-entitled action seek an order pursuant to 42 U.S.C. § 1988,
the Civil Rights Attorney's Fee Awards Act of 1976, declaring the defendants' liability for attorney's fees. In addition, they request the Court to fix the amount of such attorney's fees at $ 116,516.25 and the amount of costs and disbursements at $ 4,759.75, for a total of $ 121,276.00.
Plaintiffs originally brought this action challenging the constitutionality of a New York statute which prohibited distribution of contraceptives to persons over the age of 16 by anyone other than a licensed pharmacist, which prohibited distribution of contraceptives to anyone under the age of 16, and which banned all advertising and display of contraceptives. By opinion dated July 2, 1975, a three-judge court declared the statute unconstitutional. Population Services International v. Wilson, 398 F. Supp. 321 (S.D.N.Y.1975). The Supreme Court affirmed. Carey v. Population Services International, 431 U.S. 678, 97 S. Ct. 2010, 52 L. Ed. 2d 675 (1977).
Plaintiffs' attorneys then brought this motion for attorney's fees. Consideration of the motion was stayed pending the Supreme Court's consideration of the constitutionality of 42 U.S.C. § 1988. On June 23, 1978, the Supreme Court rendered its decision in Hutto v. Finney, 437 U.S. 678, 98 S. Ct. 2565, 57 L. Ed. 2d 522 (1978). Plaintiffs' attorneys then moved to amend the present fee request to include an award of fees for the time spent in preparing the motion for attorney's fees, I. e., $ 4,725 plus $ 64.46 in disbursements, thus making the total fee request $ 126,065.46.
Defendants object to the award of attorney's fees on several grounds which were expressly rejected by the Supreme Court in Hutto, supra.
Defendants contend that "the award of fees would wrongfully enforce monetary penalties on defendants notwithstanding that the complaint fails to state a claim against them in their individual capacities." Defendants further argue that, on the other hand, attorney's fees may "not be assessed against the state since it was not, and could not have been, a party to this action." The Supreme Court stated that in enacting § 1988 "Congress recognized that suits brought against individual officers for injunctive relief are for all practical purposes suits against the State itself." Id. at 700, 98 S. Ct. at 2578. Here, as in Hutto, the state's Attorney General has defended the case even though neither the State nor any Department is expressly named as a defendant. The Court notes, as did the Supreme Court: "There is no indication in this case that the named defendants litigated in bad faith . . . . Consequently, the (State) is the entity intended by Congress to bear the burden of the counsel fees award." Id.
Defendants also claim that since § 1988 was enacted subsequent to the three-judge court's decision, the retroactive imposition of attorney's fees violates due process. The Supreme Court rejected this argument in Hutto, quoting the House Report: "In accordance with applicable decisions of the Supreme Court, the bill is intended to apply to all cases pending on the date of enactment." Id. at 695 n.23, 98 S. Ct. at 2576.
Defendants further contend that the maximum amount that plaintiffs' attorneys may recover is $ 18,500 plus disbursements, since that is the amount for which they contracted to prosecute the action. The Court is not persuaded by this argument and does not find that such a fee agreement represents a ceiling on the amount of attorney's fees to be awarded. See Zarcone v. Perry, 581 F.2d 1039, 1044 (2d Cir. 1978) ("the prospect of an award supplementing the fees that the successful plaintiff might be able to pay would be essential to attract competent counsel.")
In addition, defendants request the Court, in the exercise of its discretion, to decline to award attorney's fees. Defendants point to the lack of bad faith on their part in defending this action. However, an award of attorney's fees pursuant to 42 U.S.C. § 1988 is not predicated on any finding of bad faith. Hutto v. Finney, 437 U.S. 678, 696, 98 S. Ct. 2565, 57 L. Ed. 2d 522 (1978). Nor does the fact that § 1988 was enacted while this case was before the Supreme Court preclude an award of attorney's fees. Id. at 696 n.25 & 26, 98 S. Ct. 2565. Defendants also emphasize that "Many states had laws similar to (this one) and this one lawsuit eliminated the need for many lawsuits around the country . . . by leading to a definitive ruling." It is precisely because of the importance of this case that attorney's fees should be awarded so that plaintiffs' attorneys should not be deterred from bringing such suits. The Senate Report on § 1988 stated: "All of these civil rights laws depend heavily upon private enforcement, and fee awards have proved an essential remedy if private citizens are to have a meaningful opportunity to vindicate the important Congressional policies which these laws contain." S.Rep.No. 94-1011, 94th Cong., 2d Sess. 1, 2 (1976), U.S.Code Cong. & Admin.News, pp. 5908, 5910. The Court finds the present situation not much different from that in which the Supreme Court stated: "It follows that one who succeeds in obtaining an injunction under that Title should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." Newman v. Piggie Park Enterprises, 390 U.S. 400, 402, 88 S. Ct. 964, 966, 19 L. Ed. 2d 1263 (1968). Accordingly, the Court weighs the benefits conferred by this suit against the hardship that would be imposed upon a grant of attorney's fees and concludes that it would represent an abuse of discretion not to award attorney's fees in this case. See Zarcone v. Perry, 581 F.2d 1039, 1044 (2d Cir. 1978).
Plaintiffs' attorneys have also moved to amend their fee request to include a request for an award of fees for the efforts expended in support of the application itself. "It is clearly accepted in this circuit that an award of attorney's fees under section 2000e-5(k) may include time expended by the attorney to prove entitlement to those fees." Richardson v. Civil Service Commission, 449 F. Supp. 10, 12 (S.D.N.Y.1978). In this context, the Court finds no reason to distinguish between an award of attorney's fees pursuant to § 2000e-5(k)
and an award pursuant to § 1988. The Court is mindful of the reasoning expressed in Richardson : "Given the ingenuity of counsel the Court can imagine a situation where the fees mandated for successful civil rights litigation would all but disappear in a post litigation battle over the amount of the award."
Id. at 12. Such a possibility was also recognized by the Supreme Court in Hutto in its affirmance of the Court of Appeals' grant of additional attorney's fees for the appeal of the district court's grant of fees. See Hutto v. Finney, 437 U.S. 678, 696, 98 S. Ct. 2565, 57 L. Ed. 2d 522 (1978). Accordingly, the Court grants the motion to amend the fee request.
Defendants also object to the amount of the attorney's fees and the type of disbursements sought. Defendants contend that the Court may not assess any disbursements other than those specifically authorized by statute as taxable costs. The allegedly excludable items include: printing costs in the Supreme Court, transportation, meals, lodging, messenger's fees, long distance phone calls and overtime stenography. Defendants have cited no case law supporting their position. On the other hand, plaintiffs' attorneys have cited numerous cases in which such allegedly excludable costs "not subsumed under federal statutory provisions normally granting such costs against the adverse party . . . are to be included in the concept of attorneys' fees." Fairley v. Patterson, 493 F.2d 598, 606 n.11 (5th Cir. 1974); see Rios v. Enterprise Association Steamfitters Local 688 of U.A., 400 F. Supp. 993, 997 (S.D.N.Y.1975), Aff'd on attorney's fees and rev'd on other grounds, 542 F.2d 579 (2d Cir. 1976), Cert. denied, 430 U.S. 911, 97 S. Ct. 1186, 51 L. Ed. 2d 588 (1977) (development of statistical analyses); Barth v. Bayou Candy Co., 379 F. Supp. 1201, 1205 (E.D.La.1974) (photographer's fees, postcards, newspaper advertisement, long distance phone call, and photocopying); James v. Beaufort County Board of Education, 348 F. Supp. 711, 720 (E.D.N.C.1971), Aff'd, 472 F.2d 177 (4th Cir. 1972) (mileage, motel and meal costs). Furthermore, during the House debate on § 1988, a member of the Committee on the Judiciary stated that "the phrase ...