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February 13, 1980

ITHA DAVID BECKER, HANNAH M. KNEAFSEY, Plaintiffs, against BARBARA BLUM, as Commissioner of the New York State Department of Social Services, and MURIEL O'CONNOR, as Commissioner of the Sullivan County Department of Social Services, Defendants.

The opinion of the court was delivered by: BRODERICK


This class action was filed in late May, 1977, seeking to enjoin defendants from implementing an amendment to New York law which would have required that medicaid recipients make "co-payments" with respect to purchases of prescription drugs and other medical services and supplies. Named as defendants were the Commissioner of New York State's Department of Social Services and the Commissioner of the Department of Social Services of Sullivan County ("Sullivan commissioner").

 On June 23, 1977, I granted plaintiffs' motion preliminarily to enjoin the implementation and enforcement of the amendment. By memorandum order dated December 28, 1978 I granted partial summary judgment in favor of plaintiffs, and judgment was duly entered.

 While defendants initially appealed from that judgment, one defendant has since withdrawn his appeal, and the appeal of the other was dismissed for failure to docket.

 The case is now before me on plaintiffs' motion for interim attorney's fees. The defendants have opposed this application, in whole or in part, on various grounds, some of which I deal with herein. *fn1"


 The Sullivan commissioner proposes that since the action taken by this court has impact with respect to class members throughout the state, any award of attorney's fees should be apportioned among all of the state's local social services departments. This proposal is unsupported by any authority. The injunction which was granted operates only against the named defendants. This court has no power to assess an award against non-parties.

 Reasonable Rates for Legal Services Attorneys

 The defendants have suggested that legal services attorneys should be paid, not at an hourly rate comparable to that of private attorneys, but at a rate which would reflect the legal services attorneys' generally lower salaries and overhead expenses.

 I reject this suggestion, see Beazer v. NYCTA, 558 F.2d 97, 100 (2d Cir. 1977), rev'd on other grounds, 440 U.S. 568, 99 S. Ct. 1355, 59 L. Ed. 2d 587 (1979); Torres v. Sachs, 538 F.2d 10, 13 (2d Cir. 1976). Attorney's fees awards have traditionally been measured by, inter alia, the value of the services performed. The value of legal services attorneys' services are not reflected by their salary; the disparities between the salaries of legal services attorneys and private practitioners "usually reflect the relative poverty of legal services funding." Rodriguez v. Taylor, 569 F.2d 1231, 1248 (3d Cir. 1977), cert. denied, 436 U.S. 913, 98 S. Ct. 2254, 56 L. Ed. 2d 414 (1978). Legal services attorneys are paid (and accept) lower salaries in order that the limited funds available may generate the greatest possible volume of legal services for the needy. Since Section 1988 of Title 42 authorizes the award to the prevailing party of "a reasonable attorney's fee," the salaries paid to legal services attorneys do not furnish acceptable guideposts. "(T)o the extent salary levels are relevant, the appropriate referent would be comparable salaries earned by private attorneys with similar experience and expertise in equivalent litigation." (Rodriguez v. Taylor, supra at 1248).

 The defendants have suggested that there be a pro-rata reduction in the award to reflect state and federal contributions to legal services. Defendants cite the Second Circuit decision in Gagne v. Maher, 594 F.2d 336, 345 (2d Cir. 1979), in support of this suggestion. The Court of Appeals in Maher upheld the district court's reduction of a fee award to the Legal Aid Society of Connecticut "to reflect the public contribution of federal funds" to the Society. In so deciding, however, the Court of Appeals clearly described the limits of its holding:

Although such a reduction is not mandatory and we do not suggest that it be routinely done, see Mid-Hudson Legal Services, Inc. v. G & U, Inc., 578 F.2d 34 (2d Cir. 1978), the issue is committed to the sound discretion of the district court.

 In the exercise of discretion, I decline to effect the reduction suggested by the defendants.

 An award of attorney's fees in this case will not result in a windfall for legal services attorneys simply because they receive funding from other government sources. The award will not be used to increase the compensation to the attorneys, but will be used to expand the services ...

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