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CLARK v. MARSH

March 12, 1985

FREDA C. CLARK, Plaintiff
v.
JOHN O. MARSH, et al., Defendants


Robinson, Jr., Chief Judge


The opinion of the court was delivered by: ROBINSON

 The pending motions are:

 (1) a petition for fees brought by Patricia J. Barry, Plaintiff's trial and appellate counsel,

 (2) a petition for fees brought by the widow of Plaintiff's counsel, John L. Tully, for work done at the administrative stage,

 (3) a motion to intervene and receive the fees of another attorney, Craig Sawyer, also deceased, who participated with Mr. Tully at the administrative stage and with Ms. Barry at trial,

 (4) a petition brought by Plaintiff herself for reimbursement of monies paid as retainers to her various attorneys, and

 (5) a motion made by the Defendants for consolidation of all pending claims for fees.

 With the exception of Freda Clark's petition for reimbursement, the government opposes all motions.

 Before considering the merits of the various claims for fees, the Court must consider the government's motion to consolidate all claims into a single claim by Plaintiff. Under the statute, 42 U.S.C. § 2000e-5(k), the entitlement to attorneys' fees and costs is in Plaintiff, not her attorneys. The legislative scheme for attorney fee awards in civil rights cases was created in order to assure that aggrieved persons are in a position to advance the public interest and policy against discrimination. Newman v. Piggie Park Enterprises, 390 U.S. 400, 402, 19 L. Ed. 2d 1263, 88 S. Ct. 964 (1968). In order to protect the policy behind the provision for fee awards it must be the party, not the attorney, who makes the claim to the court. Brown v. General Motors Corp., 722 F.2d 1009, 1012 (2d Cir. 1983); Oguachuba v. I.N.S., 706 F.2d 93, 97 (2d Cir. 1983); Richards v. Reed, 611 F.2d 545, 546 (5th Cir. 1980) (per curiam). Title VII does not create a separate right of action in the attorney; instead, fees may be awarded to the "prevailing party . . . as part of costs" in the underlying case. Therefore, "counsel has no standing to apply to the public fisc for payment." Oguachuba v. I.N.S., 706 F.2d at 98.

 There is no opposition to the government's motion to consolidate these claims. Since it is Plaintiff's right to petition for fees and costs, these claims could be quite properly consolidated under her petition for reimbursement. However, upon considering all pending claims for fees, the Court concludes that only the claim of Ms. Patricia J. Barry should be consolidated with Plaintiff's claim for reimbursement. Therefore, Ms. Barry's petition for attorney's fees and costs will be consolidated with Plaintiff's petition for reimbursement; her petition for fees and costs will be granted. The remaining claims will not be consolidated and for the reasons set forth in this Memorandum, will be denied.

 Plaintiff's Petition for Reimbursement

 Plaintiff's right to reimbursement is unassailable. In fact, the government makes no opposition to her request for reimbursement of legal expenses totalling $ 5,020.00. Through her present counsel, Plaintiff requests reimbursement of $ 2,000.00, paid as a retainer, and $ 500.00, advanced as costs, to her first and now deceased attorneys, Mr. John L. Tully and Mr. Craig T. Sawyer. Mr. Tully and Mr. Sawyer initiated the administrative proceedings which led to Plaintiff's later success before this Court. She also requests reimbursement for $ 2,520.00 paid to Ms. Patricia J. Barry for attorney's fees and for the costs of prosecuting her case.


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