The opinion of the court was delivered by: CRAIG
This Court, having considered the briefs and other materials submitted by plaintiff intervenor Tribes and the State of Washington, and having heard oral argument from the parties, hereby enters the following order with respect to the Tribes' Renewed Motion for Award of Attorney's Fees:
1. Judge Boldt in his pre-trial order and in Final Decision No. 1 found jurisdiction in Phase I of United States v. Washington under 28 U.S.C. § 1343 (3) and (4). Pretrial Order paragraph 1(c); United States v. Washington, 384 F. Supp. 312, 399 (W.D. Wash. 1974), Conclusion of Law 1c. Section 1343 (3) and (4) provide for district court jurisdiction over (1) actions brought to redress any deprivation, under color of state law, of any right, privilege or immunity secured by the Constitution, and (2) actions brought under any Act of Congress providing for protection of civil rights. In United States v. Washington the Tribes alleged, and ultimately prevailed upon, a cause of action under 42 U.S.C. § 1983, one of the civil rights statutes referred to, in that they alleged and proved deprivations, under color of state law, of "rights, privileges and immunities secured by the Constitution and laws" within the meaning of § 1983. See United States v. Washington, Conclusions of Law 38, 39, 40, 41, 42, 43, 44 and 47, 384 F. Supp. at 403-04. Specific citation of 42 U.S.C. § 1983 in the complaint or pre-trial order is not necessary in order to bring the action under the Civil Rights Acts. Paynes v. Lee, 377 F.2d 61, 63 (5th Cir. 1967); Holladay v. Roberts, 425 F. Supp. 61, 64 (N.D. Miss. 1977).
2. Since claims under 42 U.S.C. § 1983 are specifically covered by The Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, The Civil Rights Attorney's Fees Awards Act authorizes attorney fees in these proceedings. United States v. Washington was pending at the time that The Civil Rights Attorney's Fees Awards Act of 1976 was enacted and the plaintiff intervenor Tribes are entitled to an award of attorneys' fees for services rendered in United States v. Washington.
3. The application of the plaintiff intervenor Indian Tribes for attorneys' fees in Phase I was filed in a timely manner, and remains pending for decision.
4. The 11th Amendment is not a bar to a prevailing party plaintiff recovering attorneys' fees from a state under The Civil Rights Attorney's Fees Awards Act. Hutto v. Finney, 437 U.S. 678, 98 S. Ct. 2565, 57 L. Ed. 2d 522 (1978).
5. As this Court reads Judge Boldt's original decision on the Tribes' motion for attorneys' fees, Judge Boldt rejected the applicability of the "bad faith" rationale for awards of attorneys' fees in 1974. 66 F.R.D. 477 (W.D. Wash. 1974). This Court does not disturb Judge Boldt's ruling in that regard.
6. The plaintiff intervenor Tribes are the prevailing parties in United States v. Washington within the meaning of The Civil Rights Attorney's Fees Awards Act. Plaintiff intervenor Indian Tribes are not entitled to an award of attorneys' fees for participation in cases outside the framework of United States v. Washington, but are entitled to an attorney fee award for the services reasonably necessary to prepare for, try, prosecute and implement the United States v. Washington decision, including the related appeals to the Ninth Circuit Court of Appeals and the United States Supreme Court.
7. The entitlement of the plaintiff Tribes to attorneys' fees for services rendered in United States v. Washington includes all proceedings within the framework of that case, including appeals, through the remand to the District Court by the Ninth Circuit Court of Appeals pursuant to the United States Supreme Court's mandate in 1979. This Court finds that, prior to this proceeding, there have been no "prevailing parties" within the meaning of The Civil Rights Attorney's Fees Awards Act since the remand to the District Court in 1979.
8. This court finds it appropriate to appoint a special master pursuant to Federal Rule of Civil Procedure 53 to determine the specific attorney's fee to be awarded to the plaintiff intervenor Tribes under The Civil Rights Attorney's Fees Awards Act of 1976. Accordingly, Magistrate Weinberg, the full-time magistrate for the Western District of Washington at Seattle, is hereby appointed special master. This court, having determined that plaintiff intervenor Tribes are entitled to an award of a reasonable attorney's fees pursuant to 42 U.S.C. § 1988, therefore refers the matter of determining the specific fee to be awarded to Magistrate Weinberg. Magistrate Weinberg shall make a recommendation to this Court resolving all issues necessary for the determination of the appropriate award. The special master shall determine the total number of compensable hours reasonably spent by tribal attorneys in the preparation, trial, prosecution and implementation of the United States v. Washington decision and related appeals. The special master shall determine the proceedings for which the Tribes are entitled to recover fees. The special master is given specific instructions to consider the 12 factors adopted by the Ninth Circuit Court of Appeals in Kerr v. Screen Extras Guild, 526 F.2d 67, 70 (1975), and to consider the other appropriate variables utilized by the courts in setting awards under 42 U.S.C. § 1988. The special master is further directed to prepare a report recommending to this Court the specific attorney's fees to be awarded the Tribes. After Magistrate Weinberg's report is submitted, this Court will set a time for hearing so that all parties will have an opportunity to discuss the validity or invalidity of the Magistrate's recommendation.
Dated this 4th day of May, 1981.
UNITED STATES DISTRICT ...