Opinion
Plaintiffs, who had obtained injunction requiring the State of Illinois to process all applications for assistance under aid to families with dependent children program within 30 days of filing, sought to recover reasonable attorney fees for all proceedings seeking to obtain a civil contempt order designed to bring about compliance with the injunction. The District Court, Decker, J., held that Eleventh Amendment did not prohibit such award, that since defendants necessitated further proceedings before Appellate Court plaintiffs were entitled to compensation for services expended in responding to such actions and the recovery was not limited to services rendered by counsel in the district court; that fact counsel was employed by nonprofit organization did not bar award of attorney fees and that since plaintiffs furthered the interest of a significant class by effectuating a strong congressional policy they met the test of the ‘ private attorney general’ doctrine.
Motion granted.
Sheldon Roodman, Chicago, Ill., for plaintiffs.
Donald J. Veverka, Wm. J. Scott, Atty. Gen., Paul B. Biebel, Jr., Asst. State's Atty., Cook County, Chicago, Ill., for defendants.
MEMORANDUM OPINION
DECKER, District Judge.
Plaintiffs have moved for an order granting them reasonable attorneys' fees for all proceedings seeking to obtain a civil contempt order designed to bring about compliance with the October, 1970 injunction in this case. Plaintiffs' attorneys have submitted affidavits establishing that a total of 409.5 attorney hours were spent in these proceedings, and contend that a reasonable counsel fee amounts to $16,925. Defendants oppose this motion on the grounds that the award of such attorneys' fees is barred by the Eleventh Amendment, and that the facts in this case do not, as a matter of law, justify the award of attorneys' fees.
Defendants rely on Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), and Jordon v. Gilligan, 500 F.2d 701 (6th Cir. 1974), petition for cert. filed, 43 U.S.L.W. 3299 (U.S. Oct. 9, 1974) (No. 74-403), in arguing that such an award is barred by the Eleventh Amendment. In Edelman v. Jordan, the Supreme Court held that a federal court may not award compensatory retroactive welfare benefits from a state treasury. But it specifically approved awards which were:
‘ the necessary result of compliance with decrees which by their terms were prospective in nature. . . . Such an ancillary effect on the state treasury is a permissible and often an inevitable consequence of the principle announced in Ex parte Young [209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714] . . ..’ 415 U.S. at 668, 94 S.Ct. at 1358.
When the instant case was before the Seventh Circuit, Rodriguez v. Swank, 496 F.2d 110 (1974), cert. denied, 419 U.S. 885, 95 S.Ct. 151, 42 L.Ed.2d 125 (1974), the court held that the $100 per applicant sanction was within the Edelman v. Jordan principle of ancillary relief and was therefore not barred by the Eleventh Amendment. Defendants are now seeking to have this court hold that although the remedy fashioned in this case, requiring payments to be made from state funds, is not itself prohibited by the Eleventh Amendment, attorneys' fees, which would be incident to that relief, are so prohibited.
In Jordon v. Gilligan, the Sixth Circuit declined to follow the Second, Fifth and Ninth Circuits, and held that ‘ the Eleventh Amendment prohibits the awarding of attorneys' fees against unconsenting sovereign states.’ 500 F.2d at 709. But Jordon v. Gilligan stands alone. In Class v. Norton, 505 F.2d 123 (1974), the Second Circuit expressly held that an award of attorneys' fees against state officials is not barred by the Eleventh Amendment. Citing Rodriquez v. Swank, the court found that such an award was within the ‘ ancillary effect’ exception of Edelman v. Jordan, 505 F.2d at 127. In Gates v. Collier, 489 F.2d 298 (1973), the Fifth Circuit held that the award of attorneys' fees in a Section 1983 case payable from the state treasury was not prohibited by the Eleventh Amendment; the Ninth Circuit similarly ruled in Brandenburger v. Thompson, 494 F.2d 885 (1974). Even in the Sixth Circuit itself, Jordon v. Gilligan has fallen into some disrepute. See Taylor v. Perini, 503 F.2d 899, 911-12 (6th Cir. 1974) (Edwards, J., dissenting); and Milburn v. Huecker, 500 F.2d 1279 (6th Cir. 1974).
The court drew authority from the Third Circuit opinion in Skehan v. Board of Trustees of Bloomsburg State College, 501 F.2d 31 (1974). But as a recent district court opinion in that Circuit noted, Skehan concerned a different issue and therefore was not controlling on the issue of attorneys' fees in such a case. That court went on to conclude that the Eleventh Amendment does not bar an order directing individual state officials to pay an award of attorneys' fees out of state funds. Downs v. Dept. of Public Welfare, 65 F.R.D. 557 (E.D.Pa.1974).
This court declines to follow Jordon v. Gilligan and relies on the cases cited above as well as Sims v. Amos, 340 F.Supp. 691 (M.D.Ala.) (three-judge court), aff'd, 409 U.S. 942, 93 S.Ct. 290, 34 L.Ed.2d 215 (1972), in holding that such an award of attorneys' fees is not prohibited by the Eleventh Amendment.
Accord, Bond v. Stanton (N.D.Ind., filed Jan. 13, 1975). The Seventh Circuit has, to date, declined to express an opinion on this issue. See Hairston v. R & R Apartments, 510 F.2d 1090, 1092 n.2 (7th Cir. 1975).
Defendants further argue that the award of attorneys' fees is not appropriate in this case. Defendants first contend that plaintiffs are not reasonably entitled to attorneys' fees for proceedings in this matter on appeal before the Seventh Circuit and before the Supreme Court of the United States, and submit that plaintiffs should be compensated only for proceedings before the district court. Defendants necessitated such further proceedings, however, by seeking appellate review of this court's order of November 9, 1972. Defendants cannot complain, therefore, that plaintiffs seek compensation for services expended in responding to those actions instituted by defendants themselves. Cf. Jeanty v. McKey & Poague, Inc., 496 F.2d 1119, 1121 (7th Cir. 1974).
Defendants next assert that plaintiffs are not entitled to attorneys' fees because plaintiffs' counsel are employed by the Legal Assistance Foundation of Chicago, a non-profit organization financed by the Chicago Bar Association, United Charities of Chicago, and the federal Office of Economic Opportunity. The fact that plaintiffs are not obligated to pay the Legal Assistance Foundation for their services is not a bar to an award of attorneys' fees. All that is required is the existence of an attorney-client relationship. Hairston v. R & R Apartments, 510 F.2d 1090 (7th Cir. 1975). In this case the litigants furthered the interest of a significant class, persons who are applicants for and potential recipients of welfare assistance under the AFDC program, by effecuating a strong congressional policy expressed in 42 U.S.C. § 601; they have thereby met the test of the ‘ private attorney general’ doctrine.
Given the totality of circumstances in this case, this court finds that an award of attorneys' fees is both permissible and appropriate. Accordingly, plaintiffs' motion is hereby granted. Plaintiffs will prepare a suitable judgment order and submit it to this court for entry, after affording notice to defendants.