and costs because they had not "substantially" prevailed. In Henderson v. Fort Worth Ind. School Dist., 574 F.2d 1210 (5th Cir. 1978), the court approved the district court's refusal to award counsel fees to the prevailing plaintiffs on the ground that such an award would be unjust.

Huntley v. Community Sch. Bd. of Brooklyn, 579 F.2d 738 (2d Cir. 1978) affirmed the trial court's refusal to award attorney's fees although the plaintiff had received an award of nominal damages. The court stated: "We find no abuse of discretion in Judge Weinstein's conclusion that appellant at most had won a 'moral' victory of insufficient magnitude to award an award under Section 1988." 579 F.2d at 742.

Pickett v. Milam, 579 F.2d 1118 (8th Cir. 1978) held that although the district court had properly refused to award plaintiff's attorney's fees against the defendants in their individual capacity upon its finding that there was no indication that they had acted in bad faith, it should have awarded attorney's fees against the defendants in their individual capacities under Hutto v. Finney, 2565, 57 L. Ed. 2d 522 (1978).

U.S.

98 S.Ct.

In Sargeant v. Sharp, 579 F.2d 645 (1st Cir. 1978), the district court, without a hearing, had improperly refused to award prevailing plaintiffs attorney's fees. The sole reason for the court's refusal was that counsel had already received a portion of the recovery as determined by a consent decree, as a contingent fee. Although the court did not require a formal evidentiary hearing in each case, the motion for attorney's fees here was disposed of in a summary fashion without an adequate statement of the reasons for the order. The appellate court recognized that the district court does have broad discretion to make the initial determination of whether to allow an award of fees, but the district judge had failed to express his reasons for following the general principle that a successful plaintiff "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust. 579 F.2d at 647. The court's determination of whether to award an attorney's fee should be divorced from the fact that the attorney had already received a fee under a private fee agreement:

[I]f the Court finds that an agreement provides for an unethically excessive fee, it may sparingly exercise its supervisory powers over the bar to limit the amount the attorney may actually receive. If, however, the court's concern is merely that granting such fees would result in overcompensation to counsel because it would be in addition to fees received by virtue of a fee agreement, it can exercise its supervisory powers to fashion its order to ensure that the award goes to compensate the client.

579 F.2d at 648.

Referring to the legislative history of the Attorney's Fees Awards Act the court stated: "Should it be determined that counsel is entitled to fees here, the amount of the award must be adequate to provide an incentive 'to attract competent counsel.'" Id. at 648. The court remanded for a decision as to whether the plaintiff should be awarded attorney's fees under the guidelines it had set forth.

In Reynolds v. Coomey, 567 F.2d 1166 (1st Cir. 1978), an action under 42 U.S.C. § 2000e-16, the court determined that where more than one attorney represents the prevailing party, the contribution of all attorneys must be taken into consideration and the fees awarded should reflect the efforts of all, at least to the extent that the time reported did not reflect duplication of work or effort, or work that could be performed by non-lawyers. Further, these fees were to be awarded to attorneys employed by a public interest firm or organization on the same basis as awards to private practitioners. See also Perez v. Rodriguez Bou, 575 F.2d 21 (1st Cir. 1978).

The Third Circuit in Prandini v. National Tea Co., 557 F.2d 1015 (3d Cir. 1977), held that in an action under the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5 (k), it was proper for the district court to refuse to award a referral fee to an attorney based upon a percentage referral arrangement, rather than on work performed. However, since that attorney did submit a claim based

upon hourly charges, the court should have passed on it.

U.S.

An award of counsel fees which will be paid out of the state treasury is not barred by the Eleventh Amendment. Hutto v. Finney 98 S.Ct. 2566, 57 L.Ed.2d (1978); Rodriguez v. Jimenez, 551 F.2d 877 (1st Cir. 1977). In Hutto, supra, the Court stated:

As this Court made clear in Fitzpatrick v. Bitzer, 427 U.S. 445, Congress has plenary power to set aside the States' immunity from retroactive relief in order to enforce the Fourteenth Amendment. When it passed the Act, Congress undoubtedly intended to exercise that power and authorize fee awards payable by the States when their officials are sued in their official capacities. The Act itself could not be broader. It applies to "any" action brought to enforce certain civil rights laws. It contains no hint of an exception for States defending injunction actions; indeed, the Act primarily applies to laws passed specifically to restrain state action. See, e.g., 42 U.S.C. § 1983.

U.S. at

98 S.Ct. at 2575, 57 L.Ed.2d at 536. Fitzpatrick v. Bitzer, 427 U.S. 445, 447, 96 S.Ct. 2666, 2669, 49 L. Ed. 2d 614, 620 (1976), referred to in Hutto, supra, was an action brought under Title VII of the Civil Rights Act of 1964. The district court in Fitzpatrick held that the Connecticut State Employees' Retirement Act violated Title VII's prohibition against sex-based employment discrimination and granted prospective injunctive relief against the defendant state officials. However, the claim for attorneys' fees was denied since the district judge believed paying them from the state treasury was precluded by the Eleventh Amendment. The court of appeals reversed and the Supreme Court affirmed, finding that the payment of

attorneys' fees from the state treasury is not barred by the Eleventh Amendment. The Supreme Court found the immunity of the state under the Eleventh Amendment was limited by Section V of the Fourteenth Amendment of the United States Constitution which provides, "The Congress shall have power to enforce by appropriate legislation, the provisions of this article." The court stated in Fitzpatrick:

We think that Congress may, in determining
what is "appropriate legislation" for the
purpose of enforcing the provisions of the
Fourteenth Amendment, provide for private
suits against States or state officials
which are constitutionally impermissible
in other contexts.

427 U.S. at 459, 96 S. Ct. at 2671, 49 L. Ed. 2d at 622. Although Fitzpatrick was a Title VII action, the First Circuit in Martinez, 23a and the Eighth Circuit in Finney, supra, applied its holdings to section 1983 actions and found that an award of attorneys' fees was not barred by the Eleventh Amendment. See also Rainey v. Jackson State College, 551 F.2d 672 (5th Cir. 1977); King v. Greenblatt, 560 F.2d 1024, 1025 n. 2 (1st Cir. 1977).

U.S.

Counsel fees may be awarded against the state or governmental units which are not named as parties to the action. Hutto v. Finney, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978). Miller v. Carson, 563 F.2d 741 (5th Cir. 1977) stated:

Although section 1983 provides no cause
of action against local governments
because they are not "persons" within
the meaning of that statute, . . . it
creates no immunity for them. Congress
was free to pass another statute without
the restrictive language of § 1983.
Because we find that the intention of
Congress in passing the 1976 Act was
allow fee awards against local govern-
ments, Muzquiz and Monroe do not control.

We recognize that the state's eleventh amendment immunity is different in

nature from the omission of lesser

1977).

23a. Martinez Rodriguez v. Jimenez, 551 F.2d 877 (1st Cir.

It

governmental bodies in Section 1983.
would be anomalous, however, to hold that
while state governments and state
entities may be compelled to pay fees
under the Act, local governments and
their agencies cannot. Although a con-
stitutional amendment was required to
limit the eleventh amendment's immunity,
427 U.S. at 456, 96 S.Ct. 2666, only a
statutory authorization is necessary to
fill the gap in section 1983 and allow
the recovery of money from a local
government.

563 F.2d at 755-56.

In Finney v. Hutto, 548 F.2d 740 (8th Cir. 1977)
98 S.Ct. 2565, 57 L.Ed.2d 522 (1978),

aff'd
U.S.
the court stated:

We

The appellants complain that the district
court erroneously forced the Department
to pay the fee in view of the fact that
the Department is not a named party.
disagree. The Act permits an order, as
was entered in this case, requiring the
award to be paid directly from the funds
of a state agency, such as the Department
of Correction, whether or not the agency
is a named party.

548 F.2d at 742.

The Supreme Court held in Christiansburg Garment Co. v. Equal Employment Opportunity Commission, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978), that under Section 706(a) of Title VII of the Civil Rights Act of 1964, which authorizes the court in its discretion to allow the prevailing party a reasonable attorney's fee, a prevailing defendant is not to be awarded a fee unless the court finds that the claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became However, the defendant need not show that the plaintiff acted in bad faith. The Fifth Circuit applied Christiansburg in Lopez v. Arkansas Cty. Independent Sch. Dist., 570 F.2d 541 (5th Cir. 1978), to a claim for attorneys' fees under the Civil Rights Attorney's Fees Awards Act of 1976. See also United States Steel Corp. v. United States, 519 F.2d 359 (3d