S.Rep.No.94-168, 94th Cong., 1st Sess. 9, reprinted in 
U.S.Code Cong. & Ad.News 1425, 1433. Thus, while a preliminary
injunction may seem to impose an expensive burden on the state,
in actuality, it should alleviate the burden.
In conclusion, the court finds that plaintiffs have shown 1) at
least a reasonable likelihood of success on the merits, 2) there
is no adequate remedy at law and plaintiffs will be irreparably
harmed if the preliminary injunction does not issue, 3) they will
suffer a greater hardship if injunctive relief is denied than
would defendants if relief is granted, and 4) the public interest
is best served by issuing a preliminary injunction. Accordingly,
plaintiffs' motion is granted. The preliminary injunction is
issued only with respect to the named plaintiffs as no class has
ON MOTION FOR ATTORNEYS' FEES
This cause is before the court for consideration of plaintiffs'
motion for an award of attorneys' fees pursuant to the Civil
Rights Attorneys' Fees Awards Act of 1976, 42 U.S.C. § 1988
(1976) [hereinafter "Attorneys' Fees Act"], and the Remedies and
Attorneys' Fees provision for Section 504 of the Rehabilitation
Act of 1973, 29 U.S.C. § 794(a) (1978) [hereinafter "Section 504
Attorneys' Fees Act"]. The defendants oppose any award of fees
or, alternatively, seek reduction of the amount requested by
plaintiffs' counsel. Attorneys Winter, Gilbert and Smith seek
fees in the amount of $61,662.00 and $1,174.95 for costs. The law
firm of Schwartzberg, Barnett & Cohen seeks fees in the amount of
$48,903.75 and $113.80 for costs. For the reasons stated below,
plaintiffs are awarded $45,000 for the services of Attorneys
Winter, Smith and Gilbert and $1,174.95 for costs and $20,000 for
the services of the Schwartzberg, Barnett & Cohen firm and
$113.80 for costs.
Under the American Rule, absent a specific statutory
authorization, attorneys' fees are not recoverable. Alyeska
Pipeline Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612,
44 L.Ed.2d 141 (1975). The defendants argue that any award of
fees in this case would violate the American Rule and the intent
of Congress since the Education for All Handicapped Children Act,
20 U.S.C. § 1401 et seq. (1975) [hereinafter "EAHCA"] does not
contain a provision authorizing an award of attorneys' fees.
Plaintiffs contend that they are entitled to a fee award because
the claims raised under the EAHCA are also cognizable under
42 U.S.C. § 1983 and therefore fees may be awarded pursuant to the
Attorneys' Fees Act, 42 U.S.C. § 1988 (1976).
If the governing statute provides an exclusive judicial remedy,
section 1983 is not applicable. Pennhurst State School & Hospital
v. Halderman, 451 U.S. 1, 28, 101 S.Ct. 1531, 1545, 67 L.Ed.2d
694 (1981). Recently, the Seventh Circuit analyzed the EAHCA and
held that it provides an exclusive judicial remedy. Anderson v.
Thompson, 658 F.2d 1205, 1217 (7th Cir. 1981). Therefore, as
"[t]he EAHCA does not itself provide for attorneys' fees and
plaintiffs cannot rely on section 1983 as a conduit to attorneys'
fees under section 1988," Anderson v. Thompson, 658 F.2d 1205 at
1217 (7th Cir. 1981), plaintiffs are not entitled to an award of
fees for a cause of action under the EAHCA.
Plaintiffs contend that their claim for a fee award under the
Attorneys' Fees Act, 42 U.S.C. § 1988 (1976) is not foreclosed by
the Anderson, supra decision[fn1b] because they also asserted causes
of action under both the Equal Protection Clause of the
fourteenth amendment and the Rehabilitation Act, 29 U.S.C. § 794
(1978). Defendants argue that although relief was sought under
these provisions, plaintiffs are not entitled to an award of
attorneys' fees because the root of plaintiffs' action was found
in the EAHCA. Defendants cite Hines v. Pitt Cty. Bd. of Educ.,
497 F. Supp. 403 (E.D.N.C. 1980) in support of their contention.
If both a statutory and a substantial constitutional claim are
settled in plaintiffs' favor, attorneys fees may be awarded under
42 U.S.C. § 1988 (1976). Maher v. Gagne, 448 U.S. 122, 132, 100
S.Ct. 2570, 2576, 65 L.Ed.2d 653 (1980). Citing the legislative
history of section 1988, the Court stated, "Congress intended
fees to be awarded where a pendent constitutional claim is
involved, even if the statutory claim on which plaintiff
prevailed is one for which fees cannot be awarded under the Act."
Id. at 132, 100 S.Ct. at 2576. Even if the court declines to
decide the constitutional issue, fees may be awarded so long as
the plaintiff is the prevailing party and the constitutional
claim is substantial. Id. at 133, 100 S.Ct. at 2576. A
substantial constitutional claim is one which has not been
entirely foreclosed under prior court decisions or could
otherwise be considered wholly frivolous. Hagans v. Lavine,
415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974).
The parties do not dispute that plaintiffs prevailed in this
action. The constitutional claim raised by plaintiffs remained a
part of the litigation until the settlement and could not be
considered frivolous. Therefore, the plaintiffs may properly
receive an award of attorneys' fees under 42 U.S.C. § 1988
(1976). As an award of fees is proper under this statute, the
court need not discuss plaintiffs' claim for fees under the
Section 504 Attorneys' Fees Act.
Defendants argue that if plaintiffs are found to be entitled to
a fee award, the award requested in the memoranda submitted by
plaintiffs' counsel should be reduced. In their arguments for the
reduction of the fees requested by both the firm of Schwartzberg,
Barnett & Cohen and attorneys Winter, Smith and Gilbert,
defendants contend that an award should be limited because: 1)
payment will be made from the General Revenue Fund of the State;
2) the case was settled prior to trial; and 3) the settlement was
jointly attributable to both parties. Additionally, the
defendants contend that time spent in preparation of the fee
petitions is not compensable; that the hourly rate should vary
with the activity performed, and that excessive amounts of time
should be stricken from the petitions. These arguments are each
The Attorneys' Fees Act authorizes the award of attorneys' fees
when state officials are sued and payment will be made by the
state government. Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565,
57 L.Ed.2d 522 (1978). Different standards of reasonableness do
not apply to awards to be paid by state governments as opposed to
those paid by private litigants. Custom v. Quern, 482 F. Supp. 1000
(N.D.Ill. 1980). Merely because the payment of a fee award
will be made from the state's General Revenue Fund does not
mandate limiting that award.
Settlement of a suit does not preclude an award of attorneys'
fees. Maher v. Gagne, 448 U.S. 122, 100 S.Ct. 2570, 65 L.Ed.2d
653 (1980); Mezo v. International Union, United Steelworkers of
America, 558 F.2d 1280 (7th Cir. 1977). The factors for
determining the reasonableness of a fee are outlined in Bonner v.
Coughlin, 657 F.2d 931, 934 (7th Cir. 1981) and Waters v.
Wisconsin Steel Works, 502 F.2d 1309, 1322 (7th Cir. 1974), cert.
denied, 425 U.S. 997, 96 S.Ct. 2214, 48 L.Ed.2d 823 (1976).
Defendants' contentions regarding the settlement, billable rates
and excessive time have all been recognized by the court's
consideration of these factors.
Finally, in Bond v. Stanton, 630 F.2d 1231 (1980), the Seventh
Circuit made clear its position regarding the award of attorneys'
fees for time spent in the preparation of the fee petition. The
court held, "[w]e now assert explicitly what Hairston implies:
prevailing plaintiffs under the [Attorneys' Fees] Act are
properly entitled to fee awards for time spent litigating their
claim to fees." Id. at 1235. Defendants' argument to the contrary
is without merit. It is within the court's discretion to
determine whether the request for such fees is reasonable.
Defendants make two arguments specifically in opposition to the
of Attorneys Winter, Smith and Gilbert who are employees of
either the Legal Assistance Foundation or a division thereof.
First defendants argue that Gagne v. Maher, 594 F.2d 336 (2d Cir.
1979), aff'd., 448 U.S. 122, 100 S.Ct. 2570, 65 L.Ed.2d 653
(1980) authorized reducing fee awards made to legal service
organizations to the extent that the organization receives state
and federal funding. The Second Circuit did affirm the district
court's reduction of the fee, but stated that, "such a reduction
is not mandatory and we do not suggest it routinely be done . . .
the issue is committed to the sound discretion of the district
court." Id. at 345. Defendants' argument that the
Supreme Court opinion implicitly affirmed such a reduction is
without merit as the issue was not raised before the Court. Since
the Seventh Circuit has repeatedly upheld the award of fees to
legal service organizations, Mary and Crystal v. Ramsden,
635 F.2d 590 (7th Cir. 1980); Brown v. Stanton, 617 F.2d 1224 (7th
Cir. 1980); Townsend v. Edelman, 518 F.2d 116 (7th Cir. 1975),
this court declines to follow the limited precedent from the
Secondly, the defendants argue that plaintiffs are not entitled
to any fee award for the services of Attorneys Winter and Smith
who are employed by the Mental Health and Developmental
Disabilities Law Project [hereinafter Law Project] a division of
the Legal Assistance Foundation. The Law Project has a contract
with the Guardianship and Advocacy Commission, a state agency, to
provide free legal services, "to eligible persons to enforce
rights or duties arising out of any mental health or related
laws, local, state or federal." Ill.Rev.Stat. ch. 91 1/2, §
710(2). Under this contract, the Law Project receives state
funding. Defendants argue that the Law Project would be receiving
a double recovery if they, agencies of the state government, are
required to pay attorneys' fees to the state-funded Law Project.
Defendants also contend that under Ill.Rev.Stat. ch. 91 1/2, §
705(i), payment to the Law Project will result in a circular
routing of state General Revenue Funds.
As stated above, it is well-settled that plaintiffs may not be
deprived an award of attorneys' fees merely because they were
represented by a government-funded legal service organization.
Mary and Crystal v. Ramsden, 635 F.2d 590 (7th Cir. 1980); Brown
v. Stanton, 617 F.2d 1224 (7th Cir. 1980); Dennis v. Chang,
611 F.2d 1302 (9th Cir. 1980). Further, defendants misread
Ill.Rev.Stat. ch. 91 1/2, § 705(i).*fn2 The entire import of section
705(i) is to require that fees paid by clients of the Law Project
be deposited with the State Treasurer for placement in the
General Revenue Fund. Nothing in this section supports the
defendants' interpretation that fees from opposing parties must
also be deposited with the State Treasurer. Plaintiffs are
entitled to an award of fees for the services of Attorneys Winter
Defendants also oppose an award in the amount requested by the
Schwartzberg, Barnett & Cohen law firm. Specifically, defendants
contest an award for services in connection with the
administrative due process appeal and the use of a multiplier.
Defendants argue that the plaintiffs' reliance on New York
Gaslight Club, Inc. v. Carey, 447 U.S. 54, 100 S.Ct. 2024, 64
L.Ed.2d 723 (1980), as authority for an award of fees for
services in connection with an administrative hearing is
misplaced. They contend that this decision is limited to Title
VII actions because Title VII mandates that administrative
remedies be exhausted. Since the EAHCA does not mandate
exhaustion of administrative remedies,
defendants conclude that an award for these services is not
proper. However, in Mezzo v. International Union, United Steelworkers
of America, 558 F.2d 1280 (7th Cir. 1977), the Seventh Circuit noted
that under 42 U.S.C. § 1988 (1976), "Attorneys' fees . . . may
include compensation for time spent in exhausting administrative
remedies and other prelitigation services necessary or beneficial to
the litigation. . . ." Id. at 1283. (Emphasis supplied). Therefore, it
is within the discretion of this court to award fees for services
in connection with the administrative due process healing.
The Schwartzberg firm has requested that this court use a
multiplier of two times the straight time spent on the
litigation, since it was precluded from accepting other fee
generating matters during the pendency of this action and because
legal and factual issues were both novel and complex.
A multiplier may be used in an appropriate case. Bonner v.
Coughlin, 657 F.2d 931, 936 (7th Cir. 1981). In determining
whether a multiplier is appropriate, factors to be considered
include the contingent nature of the fee, the novelty and
complexity of legal and factual issues, whether the attorneys
were precluded from accepting other employment and whether the
attorneys operated under time limitations. Bonner, supra at 936;
Kamberos v. GTE Automatic Electric, Inc., 603 F.2d 598, 604 (7th
Cir. 1979). The decision rests within the discretion of the
It is true that the EAHCA was a new act when this litigation
was commenced. Both sides characterized the issues involved as
unique and complex, but the extra work of the attorneys dictated
by these circumstances will be reflected in the number of hours
they expended on the case. There is no evidence that the
attorneys were obligated to work on this case solely and to the
exclusion of other employment, except to the extent that work on
any matter in the ordinary course of the law practice results in
the inability to handle other matters or the delay in other
The court finds, therefore, no unusual circumstances justifying
the application of a multiplier in the case. Counsel for the
plaintiffs expended a great number of hours in representing the
plaintiffs and are entitled to a reasonable compensation on an
hourly basis for their efforts.
The Schwartzberg firm has submitted affidavits indicating that
Mr. Cohen billed 33 hours at $95 an hour, Mr. Levin billed 244.75
hours at $85 an hour, and Mr. Thomas billed 65.25 hours at $50 an
hour. The rates charged are reasonable in view of the experience
and ability of the attorneys and the rates customarily charged in
this area. However, for the reasons stated below, the court finds
it appropriate to reduce the number of hours for which
compensation will be awarded.
In view of the circumstances of this case, the court will not
award fees for hours spent in preparation of plaintiffs'
attorneys' fee petitions. In addition, it is the sense of this
court that the attorneys for plaintiffs may not have expended
their hours as efficiently as possible and that the requests
should be reduced. Therefore, the court awards attorneys' fees to
Attorneys Winter, Smith and Gilbert in the amount of $45,000 and
$1,174.95 for costs. This court awards attorneys' fees to the law
firm of Schwartzberg, Barnett & Cohen in the amount of $20,000
and $113.80 for costs. The court will not attempt to further
divide the awards among the attorneys but leaves that to the