brought pursuant to 42 U.S.C. §§ 1981 and 1983 (1970). Section 1988 states in part that “[i]n any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” Because an action for an injunction to redress the unconstitutional composition of grand and petit juries lies under 42 U.S.C. § 1983 (1970),
see Carter v. Jury Commission, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970), section 1988 is applicable here.
Defendants argue, however, that because the parties settled this litigation by voluntary agreement, plaintiffs cannot be considered “prevailing parties” for the purpose of an award of attorneys’ fees under section 1988. The legislative history of the Civil Rights Attorney’s Fees Awards Act of 1976, Pub.L.No.94-559, § 2, 90 Stat. 2641 (codified at 42 U.S.C.A. § 1988 (Cum.Supp. 1977)), the recent amendment to section 1988, indicates otherwise. The Senate Report accompanying S. 2278, the bill which Congress eventually passed instead of the House bill, states:
Moreover, for purposes of the award of counsel fees, parties may be considered to have prevailed when they vindicate rights through a consent judgment or without formally obtaining relief.
Kopet v. Esquire Realty Co., 523 F.2d 1005 (2d Cir. 1975), and cases cited therein;
Parham v. Southwestern Bell Telephone Co., 433 F.2d 421 (8th Cir. 1970);
Richards v. Griffith Rubber Mills, 300 F.Supp. 338 (D.Ore. 1969);
Thomas v. Honeybrook Mines, Inc., 428 F.2d 981 (3d Cir. 1970);
Aspira of New York, Inc. v. Board of Education of the City of New York, 65 F.R.D. 541 (S.D.N.Y.1975).
S.Rep.No.94-1011, 94th Cong.2d Sess. 5, reprinted in [1976] U.S.Code Cong. & Admin. News, pp. 5908, 5912. We find, therefore, that plaintiffs are “prevailing parties” within the meaning of section 1988.
III. Negligence v. Intentional Conduct
Our inquiry does not end here, however. Defendants assert that an award of attorneys’ fees under section 1988 is within the discretion of the district court, and that the court was correct in denying an award in this case because defendants’ misconduct was merely negligent and not intentional or in bad faith.
The legislative history of the Civil Rights Attorney’s Fees Awards Act of 1976 once again provides guidance. In amending section 1988, Congress sought “to remedy anomalous gaps in our civil rights laws” created by Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). S.Rep.No.94-1011, supra, at 1, reprinted in [1976] U.S. Code Cong. & Admin.News, pp. 5908, 5909. There the Supreme Court held that only Congress, and not the courts, can specify which statutes are important enough to merit the allowance of attorneys’ fees to the prevailing party under the “private attorney general” approach to enforcement. Recognizing the inconsistency of awarding attorneys’ fees in civil rights actions brought, for example, under Titles II and VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000a-3(b) and 2000e-5(k) (1970 & Supp. V 1975), but, after Alyeska, not in the same actions if they were brought under 42 U.S.C. §§ 1981 or 1983 (1970), Congress amended section 1988. See S.Rep.No. 94-1011, supra, at 4, reprinted in [1976] U.S.Code Cong. & Admin.News, pp. 5908, 5911. Indeed, the Senate Report states:
It is intended that the standards for awarding fees be generally the same as under the fee provisions of the 1964 Civil Rights Act. A party seeking to enforce the rights protected by the statutes covered by S. 2278, if successful, “should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968).
Id., reprinted in [1976] U.S.Code Cong. & Admin.News, pp. 5908, 5912 (footnote omitted).