Record and brief — Pennsylvania v. Delaware Valley Citizens' Council for Clean Air

rv

Oe B5~-5-CFX Title: Pennsylvanitar et ales Petitioners

tatus: GRANTED Ve

Delaware Valley Citizens*® Council tor Clean Aire et

ale

ocketed:

uly 34 1985 Court: unitec States Court of Appeals

tor the Thire Circuit

ee also:

64-1779 Counsel tor petitioner: KrillsJdohn Pe, WaldmansJay C.

Counsel for respondent: Solicitor General, Crawforc,James D0.

ntry Date Note Proceedings and Orders

1 Jul 3 1985 © Petition for writ of certiorari filed.

4

2 Jul 17 1985 Waiver of right of respondent United States to resoond

Tilec.

3 Jul 26 1985 VISTRIDUTED. September 20, 19285

4 Aug 20 1985 X Briet otf respondent DE Valley Citizens Council in

Cprosition filed.

5 Oct 7 1985 retition GRANTED.

RARER ARERR EERE EKER REREEREEREEEE EERE EERE ERE REED

EDITOR'S NOTE 6 Nov & 1985 Kecord filed.

7 Nov 46 1985 Certifies copy of original appendix, Volumes = thru IIT

THE FOLLOWING PAGES WERE POOR HARD COPY anc partial proceedings received.

AT THE TIME OF FILMING, IF AND WHEN A 12 Nov 26 1985 Joint appendix filed.

BETTER COPY CAN BE OBTAINED, A NEW FICHE 13 Dec 2 1985 Briet of petitioners Pennsylvanias et ale filec.

WILL BE ISSUED. 14 Dec 2 1985 Brier of respondent United States supporting the setitioners

tilec,.

15 Dec 10 1985 G motion of the Solicitor General for diviced argument

tilec.

16 Dec 2 1985 Briet amicus curiae of Arizona, et al. tiles.

17 Dec 11 1985 necord filed.

1s Dec 2U 1985 Urcer extending “ime to file briet of responcent on the

mRerits until January 114 1986.

20 Jan 7 13986 SET FOK ARGUMENT, Mondays March 3, 1986, (2nc case)

21 Jan 13 1966 motion of the Solicitor General for civiced argurent

ORANTED,

22 Jan 11 1986 Briet of respondert DE Valley Citizens’ Council tiles.

23 Jan 23 1986 CIRCULATED.

24 Fed 24 1986 K Reply oriet of petitioners Pennsylvania, et al. tilec.

125 Mar 3 1986 ARGUED.

26 Jul 2 1986 JUDGMENT AFFIRMED IN PART? REVERSED IN PART? anc

REMANDED to the Court of Appeals for further proceedings

1M Contormity with the opinion of this Court. Justice

white celivered the opinion of the Court, in which

burgers CeJder Ond Powells Rehnquist, Stevens, anc

U'Connors JJesr joinecs and in Parts I ang II oft which

erennans Marshalls and Blackmuns JJdesr joined. Blackmun,

ves tiled an opinion concurring in part and Gissentinc

1M parts in which Marshalls Jer joinecs ano in Part II

of which Brennans Jes joined. An order will issue

restoring the case to the argument calenaar insotar as

1t raises the question whether attorney's tees

cherceable to @ losing defendant uncer the Clean water

Oe B5-S5-CFX

ntry Date Note Proceedings and Orders

act anc the comparable statutes may be enhancea basec on

the risk of losss ano if so, to what extent,

27 Jul 7 1986 The case is restored to the calendar for reargument

tnsotar as it poses the issue whether a presumptively

28 Jul 7 1986 reasonad.e attorneys’ tee award under Section 3040) of

the Clean Air Acts 42 U.S.C. 760400), may be

29 Jul 7 1986 “multipliec” of otherwise enhanced to retlect the risk

that pleintitts might not have prevailed ands theretore,

30 Jul 7 1986 might nave opotaineco trom Cefendants no attorneys’ tees

et atl.

31 Jul 30 1986 G motion of the Solicitor General for leave to participate

1M oral argument as amicus curiae anc for Givicec

ergument filed.

32 Jul 28 1986 SET FOR RE&RGUMENT, wecnesdays Octonoer 154 1986. (Cath

case) (1 hour).

33 Aug 19 1985 sucgment issued.

34 Aug 21 1986 X Supplemental brief of petitioners Pennsylvania, et al.

tilec.

35 Sep 3 1986 motion of the Solicitor General tor leave to participate

in oral argument as amicus curiae anc for civideo

ergqument GRANTED.

36 Sep 23 1986 X Briet amicus curiae of American Par Assn. filed.

37 Sep 24 1986 X Supplemental brief of responcent . “OWE

36 Sep 23 1956 XK Brier amicus curiae of Joseph Bonjornos et al. filec.

39 Sep 23 1986 X Briet amicus curiae of Twelve Small Private Civil Rights Law

tirms tilec.

40 Oct 8 1986 K Reply brier of petitioner Pennsylvanias et al. filed.

41 Oct 15 1986 mREARGUED.

PETITION

FOR WRIT OF

CERTIORARI

~~

85- 5 Ps

Gin, “L

LED

JUL 3 1985

No.

a —— STEVAs,

in the Supreme Court of the —

Unjted States

October Term, 1984

COMMONWEALTH OF PENNSYLVANIA et al,

Petitioners

vs.

DELAWARE VALLEY CITIZENS’ COUNCIL

FOR CLEAN AIR

me

a

Respondents

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

JAY C. WALDMAN

General Counsel

Office of General Counsel

SPENCER A. MANTHORPE

Chief Counsel

Department of Transportation

JOHN W. CARROLL

Acting Chief Counsel

Department of Environmental

Resources

JOHN M. HRUBOVCAK

Assistant Counsel

Department of ‘\‘ransportation

By: JOHN P. KRILL

Deputy General Counsel

Commonwealth of Pennsylvania

(Counsel of Record)

Attorneys for Petitioners

Office of General Counsel

Commonwealth of Pennsylvania

Post Office Box 11775

Harrisburg, Pennsy!vania 17108

(717) 783-6563

TE kT EN A AI mh A a A

Murrelle Printing Co., Box 100, Sayre, Pa. 18840—(717) 888-2244

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR

HARD COPY AT THE TIME OF FILMING.

IF AND WHEN A BETTER COPY CAN BE

OBTAINED, A NEW FICHE WILL BE

ISSUED.

Statement of the Questions Presented

STATEMENT OF THE QUESTIONS PRESENTED

1. Whether the Circuit Court’s affirmance of the

award of multipliers of 2 and 4 by the District Court, prior

to the decision of this Court in Blum v. Stenson, is in clear

conflict with Blum v. Stenson because the District Court

relied on improper factors, such as new and novel issues,

and used conclusory language, completely failing to arti-

culate any factual justification for the enormous multi-

pliers awarded?

2. Whether likelihood cf success may be used as a

factor in the multiplier for an award of attorney’s fees,

even in cases where the losing party essentially bore the

burden of proof and persuasion?

3. Whether 42 U.S.C. §7604(d) authorizes attorney

fees for non-litigation activities such as submitting com-

ments on draft regulations and providing comments at a

public hearing, which are available to all citizens as a

means of communicating with government?

TABLE OF PARTIES

DELAWARE VALLEY CITIZENS’ COUNCIL FOR

CLEAN AIR; AMERICAN LUNG ASSOCIATION FOR

PHILADELPHIA AND MONTGOMERY COUNTY;

DELCHESTER LUNG ASSOCIATION; SIERRA CLUB,

PENNSYLVANIA CHAPTER; FRIENDS OF THE

EARTH OF THE DELAWARE VALLEY; CITIZENS’

COMMITTEE FOR ENVIRONMENTAL C@NTROL;

KEVIN QUINN, KAYSI FARRELL, RUTH G. WEISS;

JOHN KLINKNER, ELIZABETH S. BIEZ; MONA

SHULMAN,

Plaintiffs

Vv.

COMMONWEALTH OF PENNSYLVANIA; WILLIAM

T. SHERLOCK, Individually and as Secretary of the Penn-

sylvania Department of Transportation; MAURICE K.

GODDARD, Individually and as Secretary of the Penn-

sylvania Department of Environmental Resources,

Defendants

(D.C. Civil No. 76-2068)

UNITED STATES OF AMERICA,

Plaintiff

v.

COMMONWEALTH OF PENNSYLVANIA, the PENN-

SYLVANIA DEPARTMENT OF TRANSPORTATION

and WILLIAM T. SHERLOCK, Secretary of the Pennsyl-

vania Department of Transportation; the PENNSYLVA-

NIA DEPARTMENT OF ENVIRONMENTAL RE-

SOURCES and MAURICE K. GODDARD, Secretary of

the Pennsylvania Department of Environmental Resources,

Defendants

(D.C. Civil No. 77-0619)

ll

TABLE OF CONTENTS

Statement of the Questions Presented ..........

EE

Petition for a Writ of Certiorari to the United

States Court of Appeals for the Third Circuit

I. Opinions of the Courts Below ..............

ee Lc tec cece:

III. Statutory Provision Involved ..............

I neces esscces

V. Reasons for Granting the Writ ..............

A. The Circuit Court’s affirmance of the

award of multipliers of 2 and 4 by the Dis-

trict Court is in clear conflict with the deci-

sion of this Court in Blum v. Stenson, which

was issued after the opinion of the District

Court and was not available to the District

Court, because the District Court relied on

improper factors, such as new and novel

issues, and used conclusory language, com-

pletely failing to articulate any factual justi-

fication for the increase ................

B. Reliance on the likelihood of success as a

factor to be included in the multiplier for an

award of attorney’s fees, especially where the

opposing party essentially bore the burden

of proof and persuasion, is in conflict with

opinions of other Circuit Courts .........

iii

ork WW nN —

C. Resolution of the multiplier issue on which

Circuit Courts have reached conflicting

determinations, in order to bring certainty

to the standard to be applied in awarding

attorney fees, carries substantial importance

for Pennsylvania and the other states ..... 16

D. The award of attorney fees for reviewing

regulations and attending an Environmental

Protection Agency public hearing is not au-

thorized by the Clean Air Act, 42 U.S.C.

§7604 (d), and is in conflict with the deci-

sions of the First and Fifth Circuits ...... 17

Ws. GO oak ico beeds aa coe 21

APPENDIX:

1. Memorandum and Order of the District Court

dated February 24, 1984 ................ la

2. Opinion of the Third Circuit dated May 14,1985 46a

3. Memorandum and Order of the District Court

dated November 9, 1982 ................. 7la

TABLE OF CITATIONS

CASES:

Blum v. Stenson, U.S. ——, 104 S. Ct. 1541

SN ii oh ee eee we en re 5,8, 9, 10,

11,13, 14

Delaware Valley Citizens’ Council for Clean Air v.

Commonwealth of Pennsylvania, 674 F.2d 976

(3d Cir.), cert. denied, 459 U.S. 905 (1982) 6, 12

Delaware Valley Citizens’ Council for Clear Air v.

Commonwealth of Pennsylvania, 678 F.2d 470

(3d Cir.) , cert. denied, 459 U.S. 969 (1982) 7

Florida Power & Light Company v. Costle, 683

- fg. | S00) 6 rece 19

iV

Hall v. Borough of Roselle, 747 F.2d 838 (3d Cir.

hs ae ah Os a re 6 wl le 14,15

Hensley v. Eckerhart, 461 U.S. 424 (1983) ..... 15

Laffey v. Northwest Airlines, Inc. 746 F.2d 4 (D.C.

Se lc ce ekt an seueeawass Ces hanes 14, 15

May v. Cooperman, 582 F. Supp. 1458 (D.N.J.

PRE Od ae ee eee eee 13

McKinnon v. City of Berwyn, 750 F.2d 1383 (7th

- £Peererrerr rr eT Trt re rere eee 14, 15

Murray v. Weinberger, 741 F.2d 1423 (D.C. Cir.

Perr cer TTT Tere re ee 13, 14

Roosevelt Campobello International Park Commis-

sion v. Environmental Protection Agency,

rstey ©: Bi’ gs S| ree 19, 20

Stenson v. Blum, 512 F. Supp. 680 (S.D.N.Y.),

aff'd mem., 671 F.2d 493 (2d Cir. 1981),

rev'd, —— US. ——, 104 S. Ct. 1541

SOEUR 6 00sec dcdweresenee 6eenuescetnss 9,10

Webb v. Board of Education of Dyer County, ——

US. , 53 US.L.W. 4473 (April 17,

SEE spcacdsnvcneeds ot Ch00ebEpu deen e+ 20

STATUTES:

Clean Air Act, §110, as amended, 42 U.S.C.

§7410 (1982) (formerly codified at 42 U.S.C.

$1857c-5 (1976)) ......ccececccvccnece 19

Clean Air Act, §304(d), as amended, 42 U.S.C.

§7604(d) (1982) (formerly codified at 42

U.S.C. §1857h-2(d) (1976)) ........ oe 18, 19

Clean Air Act, §307, as amended, 42 US.C.

: $7607 (1982) (formerly codified at 42 U.S.C.

§1857h-5 (1976)) ....- cece eee cece ees 19

Clean Water Act, §505(d), as amended, 33 U.S.C.

§1365(d) (1982) .......-. cece eee eeeeee 19

OTHER AUTHORITIES:

-_ Leubsdorf, The Contingency Factor in Attorney

' Fee Awards, 90 Yale L.J. 473 (1981) ...... 15

Vv

Petition 1

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

Petitioners, the Commonwealth of Pennsylvania,

Thomas D. Larson, the Pennsylvania Secretary of Trans-

portation, and Nicholas DeBenedictis, the Pennsylvania

Secretary of Environmental Resources, hereby respectfully

petition this Court that a writ of certiorari issue to review

the judgment of the United States Court of Appeals for the

Third Circuit which was entered in this case on May 14,

1985.

2 Opinions of the Courts Below and Jurisdiction

I. OPINIONS OF THE COURTS BELOW

The opinion of the District Court dated February 24,

1 984, awarding attorney fees with multipliers of 2 and 4,

is not reported. This opinion is reproduced in the Appen-

dix at la to 45a.

On May 14, 1985, the Court of Appeals affirmed the

opinion of the District Court. This opinion is printed in

the Appendix at 46a to 70a.

Il. JURISDICTION

f

The judgment of the Court of Appeals was.gxtered on

May 14, 1985. The jurisdiction of this Court is invoked

pursuant tc 28 U.S.C. §1254(1).

Si ‘utory Provision Involved 3

Ill. STATUTORY PROVISION INVOLVED

1. Clean Air Act, §304(d), as amended, 42 U.S.C.

$7604 (d) (1982) (formerly codified at 42 U.S.C. §1857h-

2(d)):

The court, in issuing any final order in any action

brought pursuant to subsection (a) of this section,

may award costs of litigation (including reasonable

attorney and expert witness fees) to any party, when-

ever the court determines such award is appropriate.

The court may, if a temporary restr: ‘ning order or pre-

liminary injunction is sought, require the filing of a

bond or equivalent security in accordance with the

Federal Rules of Civil Procedure.

4 Statement of the Case

IV. STATEMENT OF THE CASE

The Petition for Certiorari is from an order awarding

attorney fees to Delaware Valley Citizens’ Council for

Clean Air (hereinafter ‘Delaware Valley”) in the amount

of $216,488.03, which includes multipliers of 2 and 4, for

work involving the Pennsylvania vehicle emission inspec-

tion and maintenance program (hereinafter “I/M_pro-

gram”). This work was subsequent to the entry of a con-

sent decree for which attorneys’ fees had already been paid.

Delaware Valley and the United States sued the Com-

monwealth of Pennsylvania, the Secretary of the Pennsyl-

vania Department of Transportation, and the Secretary of

the Pennsylvania Department of Environmental Resources

(hereinafter “state officials”) to force them to implement

an I/M program in certain counties in Pennsylvania. Such

a program involves establishing inspection stations for

checking the tailpipe emission (hydrocarbon and carbon

monoxide) of vehicles by means of an analyzer, and re-

quiring that vehicles which exceed a specified level of

emissions have repairs performed to reduce emissions to a

specified level. In August 1978, a consent decree was

signed. The decree provided for the inspection of the ex-

haust emissions of certain vehicles in ten counties in Penn-

sylvania under authority of existing state statutes. Attor-

neys’ fees were paid in 1978 and are not involved in this

appeal. Subsequent to the decree, other activities have

occurred for which Delaware Valley has requested attor-

ney fees.

Specifically, Delaware Valley’s attorneys sought at-

torney fees for work performed from 1979 to 1983. Dela-

ware Valley categorized the work in nine phases. These

—

Statement of the Case 5

nine phases include: (1) filing of a motion to show cause

by Delaware Valley which was denied, (2) commenting on

draft regulations, (3) negotiatir - first modification to

the consent decree, (4) opposing a request by state officials

to modify the consent decree further, (5) opposing a mo-

tion for a stay and a modification of the consent decree and

obtaining a finding of contempt and the imposition of sanc-

tions because the General Assembly overrode the veto of

the Gc vernor and prohibited the spending of funds for the

I/M program, (6) opposing intervention motions, (7) op-

posing seven highway projects submitted as exemptions

from the funding limitations ordered by the District Court,

(8) vacating of sanctions, and (9) filing of an amicus brief

before a state court in a related case and participating in

public hearings for a revision of the State Implementation

Plan relating to the 1/M program.

The state officials contested the award of any multi-

plier, the award of a lodestar for certain work and fees to

a member of the plaintiff group. By order dated February

24, 1984, the District Court awarded attorney fees. With

Judge Becker dissenting from the award of the multiplier,

based on this Court’s opinion in Blum v. Stenson, US.

, 104 S.Ct. 1541 (1984) , the Court of Appeals affirmed

the District Court on May 14, 1985. On June 7, 1985, the

Court of Appeals, on application of state officials, granted

a stay of the mandate.

Most relevant to this certiorari petition, the courts be-

low awarded multipliers of 2 and 4, amounting to $124,-

199.50, based on factors such as new and novel issues,

which are improper under Blum v. Stenson, and based on

conclusory and unsupported statements of the District

Court. These multipliers were applied in connection with

three phases of work.

6 Statement of the Case

First, the District Court awarded $36,711.50 as the

lodestar and a multiplier of 2 for a total award of $73,-

723.00 based on the following. In mid-1980, the United

States designed an improved emission analyzer to be used

to test vehicles for emissions in the emission inspection pro-

gram. The United States in its publications urged states to

use the new analyzer and provided for additional time to

implement an emission program to allow for manufacturer

development time. Upon analysis of this information, ne-

gotiations were initiated to modify the consent decree to

permit use of the new analyzer, but agreement could not be

reached with Delaware Valley. State officials filed a mo-

tion to modify the consent decree. Delaware Valley filed

a motion to declare state officials in violation of the con-

sent decree and submitted tem pages of requested modifi-

cations to the consent decree including stipulated penalties,

payment of administrative costs to Delaware Valley and at-

torney fees. On May 20, 1981, the District Court, without

hearing and after requiring parties to continue negotiations,

issued an order which refused the state officials’ request

for an extension of time to use the new analyzer and denied

the modifications requested by Delaware Valley. On June

16 the District Court approved an implementation plan

submitted by state officials with three modifications. The

matter was decided solely on briefs and the decision was

affirmed by the Third Circuit Court of Appeals and cer-

tiorari was denied. Delaware Valley Citizens’ Council for

Clean Air v. Commonwealth of Pennsylvania, 674 F.2d

976 (3d Cir.) , cert. denied, 459 U.S. 905 (1982).

Second, the District Court awarded $27,372.50 as the

lodestar and a multiplier of 4 for a total award of $109.-

490.00 based on the following. The emission inspection

program was continuing with all deadlines being met, in-

Statement of the Case 7

cluding establishing a scholastic program to train and cer-

tify over 1500 mechanics, certifying numerous stations

through Phase I of a two-phase certification process, de-

velopment of a public information program, development

of other phases of the program and defense of the program

in state court actions. However, on October 5, 1981, the

General Assembly passed legislation, over the veto of the

Governor, which prohibited the use of state funds to imple-

ment the emission inspection program. Based on that legis-

lative action, state officials filed a motion for a stay and a

modification of the consent decree. Delaware Valley filed

a motion to declare state officials in contempt, to impose

daily fines payable to the court and to Delaware Valley and

for attorney fees. On January 22, 1982, the District Court

denied the motion of the state officials and found them in

contempt, but the District Court denied the remainder of

Delaware Valley’s motion. The Court imposed its own

sanction and prohibited the use of federal funds for trans-

portation projects in ten counties except for projects which

were certified by the United States to be for safety or mass

transit or related to air quality improvement. The federal

certifications would become final unless stayed by the court

within a thirty-day period. The Third Circuit affirmed the

decision, after granting a stay, and certiorari was denied.

Delaware Valley Citizens’ Council for Clean Air v. Com-

monwealth of Pennsylvania, 678 F.2d 470 (3d Cir.) , cert.

denied, 459 U.S. 969 (1982).

Third, the District Court awarded $5,370.50 as the

lodestar and a multiplier of 2 for a total award of $10,-

741.00 based on the following. In late 1982, pursuant to

order of January 22, 1982, seven projects were certified

by the United States as projects that would improve safety

because they would reduce deaths and accidents or would

8 Statement of the Case

improve air quality. The certification documents were pro-

vided to the court and to Delaware Valley. On November

9, 1982, the District Court, on the basis of the certified

documents of the United States and briefs of the parties,

found that five of the projects did not qualify as exemp-

tions under the terms of its order and that two of the

projects did qualify as exemptions (71a to 85a).

Finally, the District Court awarded attorney fees for

providing comments to draft regulations and for submit-

ting comments at a public hearing. On August 18, 1979,

draft regulations for the emission program were published

in the Pennsylvania Bulletin for comment by the general

public. Delaware Valley and other persons submitted com-

ments. Delaware Valley labeled this as Phase II of the

attorney fee petition. The District Court awarded $1,-

722.50 in attorney fees for this activity.

In 1982, a public hearing was held in Philadelphia by

the Environmental Protection Agency to consider modifi-

cations to the State Implementation Plan (a general plan to

consider emission reductions from a variety of sources) .

Delaware Valley submitted comments at the public hear-

ing. Delaware Valley also labeled these comments as part

of Phase IX in the attorney fee petition. The District Court

awarded $1,453.00 in attorney fees for this activity.

State officials filed an appeal from certain aspects of

the order of February 24, 1984 and Delaware Valley filed

a cross-appeal. The District Court issued an order staving

the judgment of February 24, 1984 pending the appeal. On

May 14, 1985 the Court of Appeals for the Third Circuit,

in a panel decision with Judge Becker, based on the recent

opinion of this Court in Blum v. Stenson, dissenting from

the award of the multiplier, affirmed the order of the Dis-

trict Court (46a to 70a).

Reasons for Granting the Writ 9

V. REASONS FOR GRANTING THE WRIT

A. The Circuit Court’s affirmance of the award of

multipliers of 2 and 4 by the District Court is in clear con-

flict with the decision of this Court in Blum v. Stenson,

which was issued after the opinion of the District Court

and was not avaiiuble to the District Court, because the

District Court relied on improper factors, such as new and

novel issues, and used conclusory language, completely

failing to articulate any factual justification for the in-

crease.

On March 21, 1984 (approximately one month after

the attorney fee decision by the District Court in the pres-

ent case) this Court decided Blum v. Stenson, US. :

104 S.Ct. 1541 (1984). This decision effected a funda-

mental change in the law governing the award of atiorney

fees.

The district court opinion in Blum, which this Court

reversed, is remarkably similar to that in the present case.

In Stenson v. Blum, 512 F. Supp. 680, 685 (S.D.N.Y.

1981), the District Court awarded a multiplier of 50 per-

cent, stating:

On the facts of this case, | deem an upward ad-

justment of the lodestar amount appropriate. The

quality of representation was high. The litigation was

complex. The issues presented were novel, and the

undertaking therefore risky. Finally, the outcome was

of great benefit to a large class of needy people. All

of these factors render an incentive award appropri-

ate. See Cohen v. West Haven Board of Police Com-

19 Reasons for Granting the Writ

missioners, supra (factors include risk, complexity,

and quality of representation); Population Services

International v. Carey, supra (social benefits of the

action a factor in upward adjustment of lodestar

amount) ; Beazer v. New York City Transit Authority,

558 F.2d 97 (2d Cir. 1977) (complexity or risk of

loss on the legal issues and benefit to the clients im-

portant factors in bonus award).

Plaintiffs request a bonus of 50% of the lode-

star amount. Particularly in view of the complexity

of the litigation and the benefit to the class, I find such

an award appropriate. See Population Services Inter-

national v. Carey, supra (50% bonus awarded) ; City

of New York vy. Darling-Delaware, supra (bonus

awards of 60% to 200% granted); Blank v. Talley,

supra (50% bonus awarded) .

The opinion of the District Court in the present case

(which awarded even higher multipliers of 2 and 4 in three

short conclusory paragraphs (39a-40a) is no different from

that of the district court in Stenson v. Blum, which was

reversed by this Court. The District Court did not have the

benefit of the decision of this Court in Blum and its deci-

sion is in clear conflict with it.

As did the district court in Blum, the District Court,

in this case, also referred to new and novel issues in award-

ing the multiplier (39a). In sharp contrast, however, in

Blum v. Stenson, U.S. at , 104 S.Ct. at 1549, this

Court determined that “[nJeither complexity nor novelty

of the issues, therefore, is an appropriate factor in deter-

mining whether to increase the basic fee award.”

In awarding the multiplier, the District Court stated

in conclusory manner that the quality of representation was

Reasons for Granting the Writ 11

superior (39a). The District Court never provided any

facts for this conclusion. In Blum, this Court rejected the

use of unsupported conclusions, US. , 104 S.Ct. at

i550. The only reference by the District Court to qualify

was that the work h@tped the Court (39a). The purpose

of any submission of any memorandum in any court by any

attorney is to help the court. The Court of Appeals referred

to complexity in regard to quality (68a) and further com-

pounded the error. As held in Blum, novelty and com-

plexity are not a basis for the award of the multiplier, be-

cause these factors, as well as the time used to prepare

briefs for the aid of the court, are reflected in the reason-

able number of billable hours and the reasonableness of

the hourly rate. US. at , 104 S.Ct. at 1548-49.

In addition, this case presents an example of “‘double

counting”’, which was rejected in Blum. The Court of Ap-

peals in this case stated that “[t]he vast bulk of the work

was performed by Balter and Lanard, both inexperienced

attorneys” (62a n. 10) (emphasis added). Nonetheless, it

affirmed the District Court’s decision to compensate Mr.

Balter ‘‘at a high hourly rate . . . of $100 per hour”’ for

Phase IV (25a). It also affirmed the District Court’s

award oi « high hourly rate for Phase V, on th. basis that

the work performed by ‘“‘an attorney with a high degree of

skill” (29a-30a) , and affirmed the District Court’s award

of the same high hourly rate for Phase VII (33a). Finaliy,

it allowed the District Court to justify the upward adjust-

ment on the unsupported conclusion that the work was

superior, even after it had already awarded high rates for

that work. As in Blum, the added upward adjustment of a

high hourly rate for inexperienced counsel where high

hourly rates had already been awarded is an example of

“double counting”’. US. at , 104 S.Ct. at 1549.

12 Reasons for Granting the Writ

The District Court did not refer to any facts in reaching

these unsupported conclusions.

In justifying the multiplier, the Distr’ st Court also

appeared to believe that Delaware Valley’s counsel had

prevailed on questions ‘where likelihood of success was

least’’ (39a). A consent decree was signed in 1978 and

attorney fees were paid for that aspect of the case. Phases

iV, V, and VII involved issues where the state officials

essentially bore the burden of proof and persuasion. Phase

IV involved a motion to modify the decree to extend the

implementation date in order to use a new analyzer being

developed by the Federal government. In seeking to modi-

fy the consent decree, the state officials had the “heavy

burden” of proving ‘“‘exceptional circumstances.”’ Dela-

ware Valley Citizens’ Council, supra, 674 F.2d at 982. For

Phase V, which involved a motion for contempt and a mo-

tion to stay and to modify the consent decree, state officials

had the burden of meeting the stringent requirements to

modify the consent decree. For Phase VII, which involved

the District Court’s applying its own order, the District

Court stated that the state officials had ‘‘the burden to

prove that each project for which they now seek exemption

from the remedy has as its primary purpose the safety and

the improvement of air quality” (78a). Since the state

officials in this case had such a heavy burden to bear in

succeeding on the merits, they find it incredible that the

Court could state that Delaware Valley’s “likelihood of

success was least” on these issues (39a). Consequently,

from the entry of the initial decree, with the consent of the

state officials, until the District Court’s last order, Dela-

ware Valley’s counsel have enjoyed a significant advantage

which made their work less difficult and the fact that they

prevailed unremarkable.

Reasons for Granting the Writ 13

Although, in Blum v. Stenson, this Court did not con-

sider whether the risk of not being the prevailing party may

ever justify an upward adjustment, it did reject the use of

unsupported conclusions. U.S. at , 104 S.Ct. at

1550. The District Court in this case made no reference to

any evidence from Delaware Valley’s counsel to support

its conclusions for the simple reason that no relevant facts

were alleged in regard to the specific evidence required for

the multiplier.

May v. Cooperman, 582 F. Supp. 1458 (D.N.J.

1984), provides major insight on the application of Blum

v. Stenson. In May, a case involving a constitutional chal-

lenge, the district court candidly admitted that it would

have awarded a multiplier of 25 percent. During consider-

ation of the attorney fee award, however, Blum was issued.

The district court, which was fortunate to have had Blum

decided prior to issuing its order, awarded no multiplier,

finding that ‘‘the Blum case effects a fundamental change

in the law governing the award of attorneys’ fees” and that

the reasons advanced by plaintiffs in May were the same

reasons advanced in Blum. Id. at 1462-63.

The conclusory opinion of the district court in the

present case is no different from that of the district court

in Blum. The Court of Appeals provided no further basis

for the award of the huge multiplier and, in essence, re-

peated the unsupported conclusions of the district court.

In Murray v. Weinberger, 741 F.2d 1423, 1428 (D.C.

Cir. 1984); that court, in applying Blum v. Stenson, re-

versed the award of a multiplier by the district court for

the following reason:

“The district court has a corresponding duty un-

der the statute to explain with particularity why an

14 Reasons for Granting the Writ

increase in the presumptively reasonable lodestar

figure is necessary in order to provide reasonable at-

torney’s fees. In Blum v. Stenson, the Supreme Court

insisted that the district court fully articulate the jus-

tification for any increase of the lodestar. .. .”

The opinion here is inconsistent with R/m y, Stenson,

is in conflict with the decision of the Court of Appeals for

the District of Columbia which correctly applies Blum v.

Stenson, and, accordingly, must be reversed.

B. Reliance on the likelihood of success as a factor

to be included in the multiplier for an award of attorney’s

fees, especially where the opposing party essentially bore

the burden of proof and persuasion, is in conflict with

opinions of other Circuit Courts.

In Blum v. Stenson, this Court did not reach the issue

of whether “risk of not being the prevailing party” may

ever justify an upward fee adjustment. US. at ;

104 S.Ct. at 1550 n. 17.

In the present case, the Court of Appeals, relying on

its prior decision in Hall v. Borough of Roselle, 747 F.2d

838 (3d Cir. 1984) , approved the use of this factor in in-

creasing the base fee award (68a). Halli quoted the sepa-

rate opinion of Justice Brennan and Justice Marshall in

Blum, US. at , 104 S.Ct. at 1550-51, in approving

the use of this factor.

In McKinnon v. City of Berwyn, 750 F.2d 1383, 1392

(7th Cir. 1985) , the Seventh Circuit found that the risk of

losing alone would not justify the use of a multiplier, re-

ferring to Laffey v. Northwest Airlines, Inc., 746 F.2d 4,

26-28 (D.C. Cir. 1985) ; the law review article by Profes-

Reasons for Granting the Writ 15

sor Leubsdorf, The Contingency Factor in Attorney Fee

Awards, 90 Yale L.J. 473 (1981); and the contrary hold-

ing of the Third Circuit in Hall v. Borough of Roselle. The

Seventh Circuit analogized this factor to Hensley v. Ecker-

hart, 461 U.S. 424 (1983), which heid that attorney fees

are not awarded for unsuccessful claims. The court in

McKinnon stated, 750 F.2d at 1392:

Suppose a plaintiff asks for and receives a multi-

plier of 2 because he had a 50 perceni chance of losing

the case. This means that if the plaintiff’s lawyer tries

10 such cases and wins 5 (as one would expect, if the

risk of loss is indeed 50 percent) , he will be paid as

if he had won them all; that is, he will be paid twice

his normal charge for each of the 5 cases he won, to

compensate him for getting nothing in the 5 cases he

lost. Indeed, if the logic of the risk multiplier were

applied consistently, the attorney’s fee would be larger

the riskier the case, even though this would mean re-

warding lawyers for flooding the courts with unmeri-

torious litigation, something we very much do not

need. Imagine a class of cases where only one in 50

plaintiffs prevails. Then the risk multiplier would be

50, and a lawyer who brought all 50 cases and lost 49

would receive the same compensation that he would

have received had he been certain to win all 50 cases

(in which event there would be no multiplier) , rather

than virtually certain to lose 98 percent of them.

Moreover, in cases where the burden is essentially on

the opposing party, the case cannot be considered excep-

tional and the factor of contingency should not be used in

the multiplier. In McKinnon, 750 F.2d at 1393, the

Seventh Circuit specifically rejected an upward adjustment

for risk bearing in strong cases. In Laffey, supra, 746 F.2d

16 Reasons for Granting the Writ

at 29, the Court of Appeals for the District of Columbia

rejected the concept of an upward adjustment for risk when

the chance of success was 50 percent. In the present case,

the burden of proof essentially was on the state officials

and the risk on plaintiffs was small.

If courts are allowed to use risk as a factor to be in-

cluded in the multiplier, then the prevailing party is as-

sured of a higher award in close cases than in simple, no-

risk cases. Such a consideration effectively punishes the

losing party for defending close cases.

This Court left unresolved the issue of whether the

risk of not being the prevailing party may ever justify an

upward fee adjustment. There exists a conflict among the

Circuits on this issue. This Court should now take this

issue and resolve the conflict.

C. Resolution of the multiplier issue, on which Cir-

cuit Courts have reached conflicting determinations, in

order to bring certainty to the standard to be applied in

awarding attorney fees, carries substantial importance for

Pennsylvania and the other states.

There are more than 75 statutes, such as the civil

rights statutes, environmental statutes and, federal trade

law statutes, which cover broad areas of the law and pro-

vide for award of attorney fees. The courts have developed

a factor, called the multiplier, which can be used to multi-

ply the presumptively reasonable attorney fee and to arrive

at a final award.

The use of the multiplier is the single factor which

can be used to dramatically increase the presumptively rea-

sonable attorney fee. In the present case, three paragraphs

Reasons for Granting the Writ~ 17

added $124,199.50 to the presumptively reasonable attor-

ney fee. In marked contrast, the District Court used ap-

proximately 25 pages to articulate the factual basis for the

award of $82,153.50 for the presumptively reasonable at-

torney fee. It is the rare case where an attorney does not

ask for a multiplier.

Because of the multiplier’s potential as the single most

important factor in the award of attorney fees, the numer-

ous statutes providing for them, and the resultant large

number of cases which do involve a request for them, it is

of national importance for this Court to bring certainty to

the standard to be applied in awarding such fees.

D. The award of attorney fees for reviewing regu-

lations and attending an Environmental Protection Agency

public hearing is not authorized by the Clean Air Act, 42

U.S.C. §7604(d), and is in conflict with the decisions of

the First and Fifth Circuits.

The District Court awarded attorney fees io Delaware

Valley’s attorneys for commenting on regulations (Phase

11) and for attending a public hearing (Phase IX). Be-

cause these activities neither involved litigation, nor re-

quired an attorney’s presence, attorney fees cannot be

awarded for them.

Section 304 (d) of the Clean Air Act, as amended, 42

U.S.C. §7604 (d) , provides:

The court, in issuing any final order in any action

brought pursuant to subsection (a) of this section,

may award costs of litigation (including reasonable at-

torney and expert witness fees) to any party, when-

ever the court determines such award is appropriate.

18 Reasons for Granting the Writ

The court may, if a temporary restraining order or pre-

liminary injunction is sought, require the filing of a

bond or equivalent security in accordance with the

Federal Rules of Civil Procedure. (Emphasis added.)

Attorney fees are clearly limited to costs of “litiga-

tion” for “actions brought” under the statute. The statute

was carefully drawn and excluded the more encompassing

term “proceedings”.

&

On August 18, 1979, the draft regulations were pub-

lished in the Pennsylvania Bulletin (the state equivalent

to the Federal Register) for comment by all interested peo-

ple within thirty days. On September 17, 1979, the thir-

tieth day, Delaware Valley submitted its comments.

The submission of comments to regulations is a means

of communication with government available to any per-

son. An attorney is not required to approve or to sign the

comments. Comments are technical or policy-oriented,

rather than legal, in nature. The Court, however, awarded

counsel fees of $1,722.50, which included $1625 at $65

per hour to reimburse James Lanard. ‘Lanard at this time

was employed by Delaware Valley both as Executive Di-

rector and staff lawyer. That he had a law degree does not

permit him to claim legal fees for a technical phase (com-

menting on regulations). Because commenting on regula-

tions does not require legal work and is open to the general

public, it would be inappropriate to permit a person wish-

ing to comment on regulations who is an attorney or who

hires an attorney to bill for those attorney fees.

The District Court also awarded attorney fees of $702

because Delaware Valley submitted comments to thc

United States at a public hearing on the 1982 State Imple-

mentation Plan (SIP). The draft SIP included numerous

Reasons for Granting the Writ 19

elements, and one of those elements under consideration

was a change in the coverage area for the 1/M program.

The development and submission of state implementation

plans and modifications is provided for in 42 U.S.C. §7410.

Prior to EPA approval, that plan must be submitted at a

public hearing. If EPA approves the SIP, review of that

federai decision is provided for in 42 U.S.C. §7607.

This SIP revision is a separate process from the court

action, and the public hearings are a part of that separate

process. If the Environmental Protection Agency (EPA)

approves a SIP revision, affected parties may bring an ac-

tion in federal courts to review that action. The public

hearings and submission of comments are open to the gen-

eral populace, and there is no right to attorney fees for

participating in this separate process.

Attorney fees are not permitted for participation in

quasi-judicial administrative proceedings prior to the ap-

peal to a court from those proceedings. Florida Power &

Light Co. v. Costle, 683 F.2d 941, 943 (5th Cir. 1982).

Even if the 1982 SIP had given rise to quasi-judicial pro-

ceedings before the EPA, Delaware Valley could not have

received attorney fees for participating in such proceedings.

The public hearings on the SIP are activities even prior to

any quasi-judicial agency proceedings and are totally be-

yond the concept of any attorney fees.

In Roosevelt Campobello International Park Commis-

sion v. Environmental Protection Agency, 711 F.2d 431,

438-39 (1st Cir, 1983), the court denied attorney fees for

work at the administrative agency level under the Clean

Water Act. The attorney fee provisions of the Clean Water

Act (33 U.S.C. §1365(d)) and the Clean Air Act (42

U.S.C. §7604(d)) are identical. The Clean Air Act and

20 Reasons for Granting the Writ

the Clean Water Act use the more restricted word “‘action’”’

in lieu of the more general word “proceeding.” Id. The

Clean Air Act, in sum, does not require attorney partici-

pation at the public hearing stage and does not provide for

attorney fees for work prior to any agency hearing, nor for

that agency hearing itself.

In Webb v. Board of Education of Dyer County,

US. , 53 U.S.L.W. 4473 (April 17, 1985), this Court

found that attorney fees were not permitted for state ad-

ministrative hearings under certain civil rights statutes be-

cause there was no requirement that the plaintiff pursue

those remedies, US. at , 53 US.L.W. at 4475,

even though those statutes are more encompassing, includ-

ing both “actions” and “‘proceedings”. See Roosevelt Cam-

pobello, 711 F.2d at 438.

The clear conflict between the opinions in this case

and the opinions of the First and Fifth Circuits and the

implicit conflict with this Court’s recent decision in Webb,

can only be resolved by this Court’s exercise of jurisdiction

over this case.

Reasons for Granting the Writ 21

VI. CONCLUSION

For the foregoing reasons, Petitioners respectfully re-

quest that a writ of certiorari issue to review the judgment

of the Court of Appeals for the Third Circuit in this case.

Respectfully submitted,

Jay C. WALDMAN

General Counsel

Office of General Counsel

SPENCER A. MANTHORPE

Chief Counsel

Department of Transportation

JOHN W. CARROLL

Acting Chief Counsel

Department of Environmental

Resources

JOHN M. HRUBOVCAK

Assistant Counsel

Department of Transportation

By: JOHN P. KRILL

Deputy General Counsel

Commonwealth of Pennsylvania

(Counsel of Record)

Attorneys for Petitioners

Memorandum and Order, la

District Court

IN THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF PENNSYLVANIA

CIVIL ACTIONS

No. 76-2068

DELAWARE VALLEY CITIZENS’ COUNCIL

FOR CLEAN AIR, et al.

V.

COMMONWEALTH OF PENNSYLVANIA, et al.

No. 77-0619

UNITED STATES OF AMERICA

v.

COMMONWEALTH OF PENNSYLVANIA, et al.

MEMORANDUM AND ORDER

BECHTLE, J., FEBRUARY 24, 1984:

Presently before the court is a request by plaintiffs for

attorneys’ fees and costs, under the citizen lawsuit provi-

sion of the Clean Air Act, 42 U.S.C. $7604 (d), for legal

services rendered by the Public Interest Law Center of

Philadelphia. For the reasons which follow, the request

will be granted in an award of $209,813.00 in attorneys’

fees and an award of $6,675.03 in costs.

{

TABLE OF CONTENTS

j PAGE

_ I. History of the Litigation ................... 2

| 11. Legal Framework ....................... 7

EE eee 8

| (A) Unsuccessful Claims ................ 10

—- ES LETT Te 11

(a) Contemporaneous Records .......... 11

(b) Employee of One of the Plaintiffs .... 12

(C) Inability to Comply ................ 13

(D) Multiple Attendance at Hearings ...... 13

ee, pact cece sce 14

IV. Compensable Hours ..................... 14

acc cess cc ccc css 14

Ce cc tcc eseces 16

es cc cae s ee ccces 18

EEE ee 20

ee eck we ccc esccces 23

5 ccd vec vccccees 26

ec ccc ee we 28

Cece ccc cccece 29

es cose esc cc ccc ccc 30

(a) State Court Litigation ............. 30

(b) EPA Regulatory Activity ........... 32

Nee cece ec ee eee 33

EEE Ee 35

EEE II 36

2a Memorandum and Order,

District Court

I. HISTORY OF THE LITIGATION

This litigation has its origins in the requirements of

the Clean Air Act of 1970, as amended, 42 U.S.C. §7401,

et seq. Pursuant to the Act, in April of 1973 the Pennsyl-

vania Department of Environmental Resources (‘Penn

DER”) submitted a plan for meeting federal air quality

standards for carbon monoxide and ozone levels in the

metropolitan Philadelphia and southwestern Pennsylvania

regions. As modified and promulgated by the United States

Environmental Protection Agency (““EPA’’) in November

of that year, the plan included a provision requiring the

implementation of a program for the inspection and main-

tenance of automobile emissions systems (‘‘I/M_ pro-

gram’’) by May 1, 1975. 40 C.F.R. §52.2038 (1981).

When, by mid-1976, an I/M program had not been

implemented, Delaware Valley Citizens’ Council for Clean

Air (““DVCCCA”) brought suit under 42 U.S.C. $7604

against both the Commonwealth defendants and the EPA

(the latter for failing to enforce the Commonwealth’s ob-

ligations). The EPA also instituted an action of its own

against the Commonwealth, pursuant to 42 U.S.C. §7415

(b). EPA was then dismissed as a defendant in the

DVCCCA suit, and both actions against Pennsylvania were

consolidated.

On August 29, 1978, following prolonged discovery

and negotiations, the Commonwealth and two of its depart-

ments, Penn DER and the Pennsylvania Department of

Transportation (“Penn DOT’), agreed to a final consent

decree terminating both the DVCCCA and the United

States actions. The defendants agreed to implement an

I/M program for ten counties in the Philadelphia and Pitts-

Memorandum and Ordcy, 3a

District Court

burgh areas by August |, 1980. The consent decree pro-

vided that Penn DOT would first seek legislation institut-

ing a franchise 1/M system under which the Common-

wealth would enter into contracts with garage owners for

establishment of inspection stations. The decree provided

that should the legislature fail to effect such a system, Penn

DOT would promulgate regulations providing for a private

garage |/M system under which the Commonwealth would

certify a number of privately owned facilities to perform

the inspections. When the legislature did not enact a fran-

chise system, Penn DOT issued final regulations authoriz-

ing the alternative system. 9 Pa. Bull. 4193 (Dec. 22,

1979). As part of the consent decree, the Commonwealth

paid DVCCCA $30,000.00 for attorneys’ fees and costs

and EPA paid DVCCCA $8,700.00 for attorneys’ fees and

costs.

In late 1979 the Commonwealth requested and ob-

tained agreement from DVCCCA and the EPA to modify

the original consent decree so as to delay implementation of

the 1/M program until May 1, 1981. The modification was

approved by this court on March 7, 1980. On February 1,

1981, just three months before the I/M program was

scheduled to be implemented under the then-existing con-

sent decree, the Commonwealth had still not published

final regulations covering the vehicle emissions analyzing

equipment which private garages would have to procure

in order to become certified inspection stations. On Feb-

ruary 6, 1981 the Commonwealth requested DVCCCA and

the EPA to consent to another modification of the consent

decree so as to delay the start of the 1/M program until

january 1, 1983. The need for the 20-month delay was to

permit the Commonwealth to require the use of computer-

4a Memorandum and Order,

District Court

ized analyzer testing equipment. This type of equipment

had been recommended by the EPA for decentralized in-

spection programs such as the Commonwealth’s, since it

offered greater accuracy and would therefore enhance

public confidence in I/M programs. However, this com-

puterized equipment had not yet been produced by any

manufacturer, not even in prototype.

This request for modification was the subject of nego-

tiations among the parties but the parties failed to reach

agreement and negotiations came to an impasse. On April

29, 1981 the Commonwealth filed a motion with this court

for a modification of the existing consent decree which

would delay the start-up of the I/M program from May 1,

1981 to January 1, 1983. On May 1, 1981, DVCCCA filed

a motion to have the court hold the Commonwealth in vio-

lation of the consent decree’s requirement that the Com-

monwealth implement the 1/M program by May 1, 1981.

Following a court conference on May 6, 1981, the

EPA, at this court’s request, submitted a brief report on

the current air quality in the Philadelphia and Pittsburgh

areas. After receiving the information which indicated an

unsatisfactory state of air quality in the Philadelphia and

Pittsburgh areas, this court on May 20, 1981, denied the

Commonwealth’s request for a modification of the decree,

found the Commonwealth in violation of the requirements

of the consent decree, and ordered submission of a plan for

immediate implementation of the I/M program. The Com-

monwealth submitted such a plan, and this court approved

it with certain amendments suggested by DVCCCA. On

June 16, 1981, the decree was modified in several respects

including another extension of the deadline for implemen-

tation of the I/M program until May 1, 1982. On July 24,

ee ea

Memorandum and Order, 5a

District Court

1981, this court denied a Commonwealth motion for re-

consideration of the June 16, 1981 Order. The Common-

wealth then filed with this court a motion requesting a stay

pending the outcome of its appeal of this court’s Orders of

May 20, 1981 and June 16, 1981. Both this court and the

court of appeals denied the motion to stay and on March 1,

1982, the court of appeals affirmed the Orders of May 20,

1981 and June 16, 1981. Delaware Valley Citizens’ Coun-

cil for Clean Air v. Commonwealth of Pennsylvania, 674

F.2d 976 (3d Cir. 1982). On October 12, 1982, the

United States Supreme Court denied the Commonwealth’s

petition for certiorari. 103 S.Ct. 206 (1982).

in the meantime, following this court’s decision in

june of 1981, the Pennsylvania General Assembly passed

House Bill No. 456, §2 (H.B. 456), which prohibited the

expenditure of state funds by the executive branch for the

implementation of the I1/M program. Although the Gov-

ernor vetoed the bill, the legislature overrode the veto and

enacted H.B. 456 into law. Act of October 5, 1981, No.

99, §2, 1981 Pa. Legis. Serv. 312. Penn DOT and the

executive branch immediately ceased all efforts toward im-

plementing the I/M program, except for publication of

final regulations pertaining to the standards for emission

analyzers to be purchased by the private garage owners

choosing to participate in the program. 11 Pa. Bull. 3519

(Oct. 10, 1981).

On October 12, 1981, the Commonwealth moved for

a stay of the consent decree and for modification thereof

on the basis of H.B. 456. DVCCCA moved to declare de-

fendants in civil contempt and to establish sanctions. On

January 22, 1982, this court denied the Commonwealth’s

motion for a stay and declared the Commonwealth and the

6a Memorandum and Order,

District Court

Secretaries of Penn DOT and Penn DER to be in civil

contempt and as a sanction ordered the Secretary of the

United States Department of Transportation to refrain

from approving any projects or awarding any grants under

Title 23 of the United States Code for highways in areas in

the Commonwealth covered by the consent decree, other

than for purposes of safety, mass transit or transportation

projects related to air quality improvement or maintenance.

533 F. Supp. 869 (E.D. Pa. 1982). Defendants appealed

and moved for a stay of this court’s civil contempt Order

pending appeal. A stay was granted by the court of appeals

on March 19, 1982. A petition by DVCCCA for a rehear-

ing en banc of the stay was denied on April 6, 1982. On

May 21, 1982, the court of appeals affirmed this court’s

Order of January 22, 1982, declaring the Commonwealth

defendants to be in contempt of the consent decree and en-

joining the Secretary of Transportation from approving the

aforementioned projects or grants. 678 F.2d 470 (3d Cir.

1982). The Supreme Court denied both the Common-

wealth’s application for a stay of the court of appeals’ de-

cision and the Commonwealth’s petition for certiorari.

103 S.Ct. 14 (1982).

On May 3, 1983, the Pennsylvania General Assembly

approved Act 1983-3, 1983 Pa. Legis. Serv. Act No. 1983-3

?urdon), which authorized the defendant Pennsylvania

.» retary of Transportation to proceed with the implemen-

tation of the 1/M program. On May 4, 1983, the Governor

of Pennsylvania signed the Act into law. Subsequent nego-

tiations among the parties led to a new compliance sched-

ule establishing June 1, 1984 as the date for commence-

ment of the I/M program. On May 16, 1983, this court

ordered that the civil contempt sanction be vacated.

Memorandum and Order, 7a

District Court

Il. LEGAL FRAMEWORK

The Clean Air Act of 1955, Pub. L. No. 91-604, §12

(a) , 84 Stat. 1706 (amended 1977) , 42 U.S.C. §7604 (d),

provides, in pertinent part:

The court, in issuing any final order in any action

brought pursuant to subsection (a) of this section,’

may award costs of litigation (including reasonable

attorney and expert witness fees) to any party, when-

ever the court determines such award is appropriate.

Plaintiffs seek attorneys’ fees and costs under this pro-

vision for all activity performed after the issuance of the

1 The citizen lawsuit provision of the Clean Air Act, 42 U.S.C.

§7604(a), provides, in pertinent part:

Except as provided in subsection (b) of this section, any

person may commence a civil action on his own behalf—

(1) against any person (including (i) the United States,

and (ii) any other governmental instrumentality or agency

to the extent permitted by the Eleventh Amendment to the

Constitution) who is alleged to be in violation of (A) an

emission standard or limitation under this chapter or (B) an

order issued by the Administrator or a State with respect to

such a standard or limitation,

(2) against the Administrator where there is alleged a

failure of the Administrator to perform any act or duty under

this chapter which is not discretionary with the Administrator,

or

(3) against any person who proposes to construct or

constructs any new or modified major emitting facility with-

out a permit required under part C of subchapter I of this

chapter (relating to significant deterioration of air quality)

or part D of subchapter I of this chapter (relating to nonat-

tainment) or who is alleged to be in violation of any condition

of such permit.

8a Memorandum and Order,

District Court

consent ‘decree on August 29, 1978. In determining plain-

tiffs’ egal fee award, this court is bound by the framework

for dt ermining such awards which has been set forth in

Lindy Brothers Builders, Inc. of Philadelphia v. American

Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d

~Cir. 1973) (Lindy 1) and subsequently refined in Lindy

Brothers Builders, Inc. of Philadelphia v. American Radi-

ator & Standard Sanitary Corp., 540 F.2d 102 (3d Cir.

1976) (en banc) (Lindy Il); Merola v. Atlantic Richfield

Co., 493 F.2d 292 (3d Cir. 1974) (Merola 1); Merola v.

Atlantic Richfield Co., 515 F.2d 165 (3d Cir. 1975)

(Merola il) ; Prandini v. National Tea Co., 557 F.2d 1015

(3d Cir. 1977) (Prandini 1); Prandini v. National Tea

Co., 565 F.2d 47 (3d Cir. 1978) (Prandini I); Rodriguez

v. Taylor, 309 F.2d 1231 (3d Cir. 1977) , cert. denied, 436

U.S. 913 (1978) ; Hughes v. Repko, 578 F.2d 483 (3d Cir.

1978); Baughman v. Wilson Freight Forwarding Co., 583

F.2d 1208 (1978) and Walker v. Robbins Hose Co. No. 1,

Inc., 622 F.2d 692 (3d Cir. 1980). This framework re-

quires that the court make a determination of the number

of hours reasonably necessary to perform the legal services

for which compensation is sought. Hughes, 578 F.2d at

487. The reasonable number of hours is then muitiplied by

a reasonable hourly rate for the attorney providing the ser-

vices, the latter being based on the court’s determination of

the attorney’s reputation, status and type of activity for

which the attorney is seeking compensation. Lindy I, 487

F.2d at 167. The sum of the two numbers is the “lodestar”

which can then be adjusted upward or downward based on

the contingency of success, and the quality of an attorney’s

work. In all instances plaintiffs have the burden of estab-

lishing entitlement to the award claimed and any adjust-

Memorandum and Order, 9a

District Court

ment to the “‘lodestar.’’ Hensley v. Eckerhart, 51 U.S.L.W.

4552 (No. 8i-1244, May 16, 1983); Lindy II, 540 F.2d

at 117.

Ill. GENERAL GUIDELINES

At the outset it should be noted that unlike other cases

where attorneys’ fees have been awarded, this case was not

one where the parties filed suit, out of which a decision was

rendered and the parties then went their separate ways in

obedience to that decision. This case has required constant

monitoring of the consent decree both by the court and

plaintiffs in order to ensure compliance by defendants with

both the letter and spirit of the decree as well as to protect

the plaintiffs’ and the public’s rights under the decree.

, a , ?

During the litigation and up until the present day,

there has existed an intense adversarial atmosphere among

all concerned parties.” The defendants’ presence has con-

stantly been dominated by either a policy or an attitude

that has tried to prohibit or delay the implementation of

the I/M program in response to which the plaintiffs have

constantly held fast to their position, without being totally

inflexible. Additionally, plaintiffs have been required to

partake in activities which, while not directly required un-

der the consent decree, were sufficiently related to its goals

and the ongoing litigation that such efforts should, and will

be compensated for in some reasonable measure.

* Evidence of the continuing adversarial relationship is the

bill recently introduced into the Pennsylvania legislature which, if

enacted, would attempt to preclude payment of any counsel fees

awarded in this litigation. H.R. 1702, 167th Regular Session, Ses-

sion of i983 (Printer’s No. 2172).

10a Memorandum and Order,

District Court

In their petition for attorneys’ fees and costs, plain-

tiffs have divided the requests for compensable hours into

nine phases, each phase relating to a different aspect of the

litigation. In their response opposing the fee petition, de-

fendants have made specific objections to each phase as

well as general objections which pertain to all phases. The

court will address the general objections in this section and

any specific objections which warrant consideration in the

discussion of the compensable hours of each phase.

(A)

Defendants assert that plaintiffs should not be com-

pensated for aspects of this litigation on which plaintiffs

were unsuccessful. This argument must be rejected. For

this court to itemize each motion, request or claim that has

been presented in this complex and prolonged litigation

and determine whether plaintiffs were ‘‘successful” would

be unnecessary as well as impossible. Such an analysis is

not required where, as here, plaintiffs have clearly pre-

vailed in attaining what they sought and what would not

_have occurred without their efforts. This determination

follows the recent Supreme Court case of Hensley v. Ecker-

hart, 51 U.S.L.W. 4552 (No. 81-1244, May 16, 1983).

The issue before the Court in Hensley was whether a par-

tially prevailing plaintiff could recover, under the Civil

Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C.

§1988, an attorney’s fee for legal services on unsuccessful

claims. The Court stated that where a lawsuit consists of

related claims, a plaintiff who has won substantial relief

should not have his attorney’s fee reduced simply because

the district court did not adopt each contention raised by

plaintift. Hensley, 51 U.S.L.W. at 4556. There being no

doubt that plaintiffs have won substantial relief in this

Unsuccessful Claims

daly

ee ee eo ae Se

DS, Nel * eK es r

;

i

3

Ke

Memorandum and Order, lla

District Court

court,’ this court refuses to piecemeal the individual mo-

tions and claims which were presented during the litiga-

tion.

(B) James S. Lanard

a) Contemporaneous Records

Defendants oppose any award for work done by

James Lanard on the grounds that: 1) Mr. Lanard failed to

keep contemporaneous time records for much of the period

involved; and 2) Mr. Lanard’s attempt to reconstruct time

records is a sham. While contemporaneous time records

are the most desirable way of proving time spent, such is

not the only way. Although mere estimates of time are not

acceptable, an allowance of attorney’s fees may be based

on a reconstruction, provided that the records are substan-

tially reconstructed and are reasonably accurate. Lindy II,

540 f.2d at 109.

Although all other attorneys who werked cn this case

have submitted time cards for the work they did, there are

* In the recent Pennsylvania Supreme Court case of Scanlon

v. Commonwealth of Pennsylvania, Pa. , 467 A.2d 1108 (Pa.

1983). the court held that Penn DOT lacked the authority to enter

into the federal consent decree involved in the present lawsuit. A

subsequent injunction was issued by the Pennsylvania Common-

wealth Court which permanently enjoins Penn DOT from carrying

ow any activities required by the original consent decree or its

modifications. Burd v. Commonwealth of Pennsylvania, No. 1506

(Pa. Commw. Jan. 9, 1984). While such rulings may be binding on

ihis court to the extent they interpret the powers of a stat: agency,

the rulings do not and cannot set aside an existing feder | consent

decree and do not affect the substantial relief plaintif! have at-

tained in this court.

Memorandum and Order,

District Court

12a

certain periods during the litigation when Mr. Lanard

failed to keep time cards. For such periods, as more spe-

cifically set forth in the respective phases, Mr. Lanard has

attempted to reconstruct the time spent through reference

to notations on his calendar, his notes, specific events re-

lated to the case, telephone bills, time sheets and memos

drafted with regard to the amount of time spent on this

matter. The court, after examining the record in this case

and comparing such with Mr. Lanard’s requests, is satis-

fied that the reconstruction was, for the most part, care-

fully and accurately done. Lindy II, 540 F.2d at 109.

However, since some of Mr. Lanard’s hours are based on

reconstruction, the court must require more from Mr. La-

nard than would normally be required from an attorney

who has submitted contemporaneous time cards. For this

reason, time requested by Mr. Lanard which is based on

either’ 1) time sheets which do not include specific ac-

tivity but merely follow the chronological history of the

Case; Or 2) On memos drafted for the purpose of relating

the time spent, will be denied. The court finds that for

such periods Mr. Lanard makes no more than general al-

legations as to the type of work he has done, failing to meet

the specificity which is required in fee petitions.

b) Employee of One of the Plaintiffs

Defendants also oppose any award for Mr. Lanard’s

work on the ground that he was Executive Director of

DVCCCA during the litigation. Defendants assert that

where a client engages an attorney, the client must aid the

attorney but cannot collect attorney fees. Since Mr. La-

nard was an officer of DVCCCA, one of the plaintiffs, de-

fendants contend that his hours as an attorney should not

be the basis of any award.

“yo. as

Se. TR aD ol rhea OS. tg rei aaa bers

Memorandum and Order, 13a

District Court

While the general rule may be that an attorney who

acts for himself is not entitled to a counsel fee against his

adversary, see Picking v. Pennsylvania R.R. Co., 11 F.R.D.

71 (M.D. Pa. 1951), general rules do not apply in this

case. For much of this litigation Mr. Lanard was the only

individual working on a particular aspect of the case. Ad-

ditionally, Mr. Lanard performed a large part of all the

activity for which plaintiffs now seek compensation. To

deny any award of attorney fees based on Mr. Lanard’s

activities would not be equitable under the circumstances

ot this case.’

(C) Inability to Comply

Defendants assert throughout their response to plain-

’ tiffs’ fee petition that they should not be responsible for

htt Sle dee 4

fees incurred by plaintiffs if the fees were generated in re-

sponse to activities of governmental branches, other than

ihe executive branch, which impeded implementation of

_ the I/M program. However, as the court of appeals has

stated, not only was the executive branch of the Common-

wealth bound by the consent decree but all branches were

so bound. 678 F.2d 470, 475, cert. denied, 103. S.Ct. 298

(1982). Accordingly, there being no distinction among

the branches as to being bound by the decree, there will be

no distinction as to the cause of fees incurred by plaintiffs

in defending their rights under the consent decree.

(D)

Defendants contend that if plaintiffs receive any

award, it should not include time spent by an attorney at a

Multiple Attendance at Hearings

‘It should also be noted that the court has denied a large per-

centage of the hours requested by Mr. Lanard, not on the basis of

being on employee of DVCCCA but rather, for failure to submit

adequate time records tor his activities. Sce section IIT (B) supra.

14a Memorandum and Order,

District Court

hearing unless that attorney was the one who presented

plaintiffs’ position at the hearing. The court agrees.

While it is true that more than one attorney has

worked on plaintiffs’ case, at all times during the hearings

only one attorney spoke on behalf of the plaintiffs. While

plaintiffs contend that the presence of the other attorneys

working on the case was necessary for an understanding of

the case, the court is quite sure that if the arguing attorney

was competent enough to argue the case, he was competent

enough to explain the events of a hearing to his colleagues.

Mere attendance in the courtroom by attorneys who were

not the principal advocates for the cause is not entitled to

compensation.

(E) Hourly Rates

The current fee petition requests hourly rates which

increase from year to year. While this court recognizes

that attorneys’ fees do rise over a period of time and that

the period covered by the fee petition spans five years, it is

more appropriate in this instance to calculate an average

rate for each type of work performed during the five years.

See In re Fine Paper Antitrust Litigation, 98 F.R.D. 48, 83

(E.D. Pa. 1983). In arriving at these rates the court has

evaluated the status, reputation and experience of the in-

dividual attorneys who performed the activity. The attor-

neys who performed tasks that required no significant legal

ability will not be compensated at high hourly rates just as

attorneys who performed clerical or administrative tasks

will not be compensated for performing legal tasks. With

that in mind, the reasonable average hourly rate for work

which this court finds to be the most difficult will be

$100.00. For work this court finds could have been done

by an attorney working at the associate level, an average

4 Memorandum and Order, 15a

District Court

“hourly rate of $65.00 will be applied. For work associated

with legal work but which required little or no legal ability,

} the court will grant an average hourly rate of $25.00.

“IV. COMPENSABLE HOURS

‘ (A) Phase I—Failure of Commonwealth to Comply

_ with the Consent Decree of August 29, 1978

4

Pursuant to the consent decree of August 29, 1978,

_ the Commonwealth was to commence the I/M program by

_ August 1, 1980. One of the prerequisites for commence-

; ment was the publishing, by the Commonwealth, of pro-

e

- posed regulations for the program. Publication was to

have been completed by July 1, 1979. The Commonwealth

_ having failed to comply with this requirement, DVCCCA

_ moved to find the Commonwealth in violation of the de-

- cree on July 30, 1979. Prior to a hearing before this court

on September 20, 1979, at which a new implementation

- schedule was established, the regulations were published.

Defendants contend that plaintiffs should be pre-

cluded from recovering any award for this phase due to

plaintiffs’ bad faith in refusing to agree to a requested three

month extension. This court disagrees that plaintiffs’ re-

fusal to grant an extension regarding publication of the

_ regulations was in bad faith. Moreover, plaintiffs had

_ every right to proceed in the manner that they did. The

- consent decree set forth the date before which publication

was required and defendants failed to comply. Plaintiffs’

actions were appropriate and required in order to protect

their rights as set forth in the decree.

Albert Slap expended 37 hours and Eric Beller ex-

_ pended 6.9 hours in this phase of the case. The court finds

16a , .2morandum and Order,

District Court

that the activities performed by Mr. Slap and Mr. Beller in

this phase were reasonably necessary and not excessive or

duplicative.

Mr. Lanard’s hours for Phase I work have been re-

constructed from his calendar, his notes and specific events

related to the case. In this phase, the court finds that Mr.

Lanard’s reconstruction of hours is specific enough and ac-

curate enough that the hours should be granted. However,

because Mr. Lanard’s request includes time spent in prepa-

ration for the contempt hearing and for attendance at the

hearing, the time granted will be reduced from the 29 hours

requested to 25 hours.” These 25 hours were necessary and

not excessive for the work performed.

A reasonable average hourly rate for the activities per-

formed in Phase I by Mr. Slap is $65.00, most of the ac-

tivities involving telephone calls, meetings and discussions.

The same average hourly rate will be applied to the com-

pensable hours of Mr. Beller and Mr. Lanard, since their

activities consisted of research, discussions, meetings and

submission of comments to the regulations.

* Although this court is of the opinion that it was Mr. Slap

who represented plaintiffs at the contempt hearing, the court can

find no information to indicate whether Mr. Slap or Mr. Lanard

actually represented plaintiffs at the contempt hearing. However,

to the extent it was Mr. Lanard who actually represented plaintiffs

at the hearing, the attorney fee award for this phase need not be

changed since Mr. Slap has been granted hours for the activity at

the same hourly rate as applied to Mr. Lanard’s activities in

Phase I.

i

|

.

4

5

;

:

i

Memorandum and Order, 17a

District Court

Phase I

Compensable —_ Hourly

Hours Rate

Mr. Slap 37 $65 = $2405.00

Mr. Beller 6.9 $65 — §$ 448.50

Mr. Lanard 25 $65 = $1625.00

Phase I Lodestar ........ $4478.50

(B) Phase II[—Revisions of Original Consent

Decree

Following the publication of the I/M program regu-

lations and the court hearing on September 20, 1979,

DVCCCA continued to monitor defendants’ performance

under the consent decree and submitted comments on the

regulations which were published in the Pennsylvania Bul-

letin. Plaintiffs request a total of 41 hours for this phase,

37.5 hours for Mr. Lanard, and 3.5 hours for Mr. Slap.

The publishing of the regulations was required under

the consent decree. While it is true that the opportunity to

submit comments to the proposed regulations was avail-

able to any person, it does not follow, as defendants con-

tend, that plaintiffs should not be compensated for the time

used in preparing comments. Plaintiffs had an interest in

the regulations since they were a party to the consent de-

cree. Their interest was based on a desire to ensure com-

pliance with the consent decree and to protect their rights

thereunder. The usefulness of plaintiffs’ comments was

manifested in the revisions that were made to the original

proposed regulations.

Plaintiffs’ request for 37.5 hours for Mr. Lanard’s

work is based on a reconstruction formed by references to

18a Memorandum and Order,

District Court

hist...“ she court determines that, while the reconstruc-

tion was carefully and accurately done, the number of

hours for the work claimed is excessive. For this activity

which mostly includes submitting comments to the regu-

lations, reviewing EPA’s submissions and attendance at a

meeting to discuss * 1e regulations, 25 hours is a reasonable

amount of time.

The request for 3.5 hours’ expended by Mr. Slap is

based on attendance at a conference regarding the consent

decree and on consen. lecree monitoring. The court, being

unable to determine what activities constituted the consent

decree monitoring will reduce the requested hours to 1.5

hours.

A reasonable average hourly rate for the activities per-

formed by Mr. Lanard and Mr. Slap is $65.00 since such

activities are not the type entitled to the higher hourly rates

reserved for more difficult work.

Phase II

Compensable —_ Hourly

Hours Rate

Mr. Lanard 25 $65 - $1625.00

Mr. Slap 1.5 $65 = $ 97.50

Phase II Lodestar........ $1722.50

(C) Phase Il1l—Modification of the August 29,

1978 Consent Decree

Due to the substantial number of comments to the

proposed regulations a modification to the consent decree

was required. Such modification, approved by this court

on March 7, 1980, delayed commencement of the I/M

program from August 1980 until May 1981.

Memorandum and Order, 19a

District Court

Plaintiffs have requested that this court grant 2.2

hours for work Mr. Balter did regarding this modification.

The work for which compensation is sought is an analysis

of ozone formation and a reading of the amended decree,

work that was reasonably necessary and for which plain-

tiffs will be compensated.

Plaintiffs request that 61.75 hours be approved for

time spent by Mr. Lanard in this phase. The hours re-

quested are hours reconstructed from Mr. Lanard’s notes

and calendar. Although the court determines that for the

most part the reconstruction was carefully and accurately

done, the amount of time expended was excessive and in

some cases is not sufficiently described. The review of

pending legislation that may have affected the I/M pro-

gram and of proposals regarding modification could rea-

sonably have been completed in 6 hours. Additionally, the

10.5 hours spent on the “Thornburgh memo” and .25

hours on activity which is unspecified will be denied since

this court is unable to determine what activities these hours

cover and how much time would be required to reasonably

perform these tasks. Accordingly, for all the necessary ac-

tivities performed by Mr. Lanard in Phase III, 26 hours is

a reasonable amount of time in which these activities could

have been performed.

Mr. Balter’s hours will be compensated at the ia.. of

$25.00 per hour since the activities did not require any

legal analysis. Mr. Lanard’s hours will be compensated at

the rate of $65.00 per hour. Despite being plaintiffs’ lead

counsel in this phase, the activities performed by Mr. La-

nard, which included attendance at hearings, were not the

type of activities which should be compensated at a high

hourly rate.

20a Memorandum and Order,

District Court

Phase III

Compensable —_ Hourly

Hours Rate

Mr. Balter 2.2 $25 = §$ 55.00

Mr. Lanard 26 $65 = $1690.00

Phase III Lodestar........ $1745.00

(D) Phase 1V—Commonwealth in Violation of the

First Modification oj the Consent Decree

In February of 1981, the Commonwealth requested a

second modification of the consent decree to extend the

date of commencement of the I/M program on the basis

that the EPA had recommended, for states such as Penn-

sylvania, a type of emission analyzer different from the one

required under the consent decree. Negotiations failed to

resolve the matter and on April 29, 1981, the Common-

wealth filed a motion to modify the decree and delay the

start of the I/M program until January 1, 1983. A sub-

stantial amount of litigation followed ending with the Su-

preme Court’s denial of the Commonwealth’s petition for

certiorari on October 12, 1982. Delaware Valley Citizens’

Council for Clean Air v. Commonwealth of Pennsylvania,

103 S.Ct. 206 (1982) .°

* The activities in this phase for which plaintiffs seek compen-

sation were based on the following events:

April 29, 1981: The Commonwealth filed a motion to

modify the consent decree to delay the start of the 1/M pro-

gram from May 1, 1981 to January 1, 1983.

April 30, 1981: The Commonwealth moved for a stay of

the consent decree.

May 1, 1981: DVCCCA filed a motion to declare the

Commonwealth in violation of the consent decree.

so ay ice Kanaan A

me

DP enithes LIOS Le e be PAE RINE nn bid tle he 0%

VAM nt ta Ro ied! GahdRe ie

Ry ie gee nF

Memorandum and Order, 2la

District Court

Plaintiffs have requested 3 hours for Mr. Gilhool’s

attendance at a court hearing held on February 2, 1982.

For the reasons stated in section III (D) above, the hours

will be denied. For the same reason, the time requested

for Mr. Churchill will be reduced by 3 hours; the remain-

ing 5.1 hours of Mr. Churchill were reasonable and neces-

sary to the events in Phase IV.

May 6, 1981: The court convened a conference to hear

the views of the parties on the foregoing motions.

May 20, 1981: The court, after receiving a requested

report from the EPA on air quality in the regions affected by

the consent decree, issued an order declaring the Common-

wealth in violation of the consent decree and denying the Com-

monwealth’s motion for a stay and denying the motion for a

modification.

June 1, 1981: The Commonwealth moved for reconsider-

ation of the court Order of May 20.

June 8, 1981: DVCCCA filed its answer to the Common-

wealth’s request for reconsideration.

June 8, 1981: DVCUCA filed its comments to the Com-

monwealth’s proposals for implementing I/M.

June 10,1981: The court held a hearing on the Common-

wealth’s motion for reconsideration and the Commonwealth's

proposals for implementing I/M.

June 16, 1981: The court issued an Order denying the

request for reconsideration and establishing May 1, 1982 as

the start-up date for an I/M program.

June 26, 1981: The Commonwealth filed a motion for

reconsideration of the court Order of June 16, 1981.

July 8, 1981: DVCCCA filed its answer in opposition to

the request for reconsideration.

July 14, 1981: The Court denied the Commonwealth's

request for reconsideration.

July 30, 1981: The Cominonwealth filed a notice of ap-

peal to the circuit court in respect to the court Orders of May

20 and June 16.

22a Memorandum and Order,

District Court

Plaintiffs have requested 398.75 hours for Phase IV

work performed by Mr. Lanard. The hours requested are

July 30,1981: The Commonwealth filed a motion to this

court requesting a stay pending the outcome of its appeal to

the cireuit court.

August 10, 1981: DVCCCA filed its answer in opposi-

tion to the Commonwealth's request for a stay.

August 20, 1981: This court denied defendants’ motion

for stay pending appeal.

August 7, 1981; Commonwealth filed notice of appeal in

re this court’s Orders of May 20, 1981 and June 16, 1981.

August 27, 1981: Commonwealth filed motion for stay

of this court’s Order of June 16, 1981.

September 4, 1981: DWVCCCA filed response in opposi-

tion to Commonwealth’s request for stay.

September 11, 1981: Commonwealth motion for ex-

pediied hearing.

September 14, 1981: Cireuit court denied motion for

stay.

September 18, 1981: Cireuit court denied motion for ex-

pedited hearing.

October 9, 1981: DVCCCA filed brief in opposition to

Commonwealth's appeal brief.

February 2, 1982: Cireuit court hearing on Common-

wealth appeal.

March 1, 1982: Circuit court affirms this court’s Order

of May 20, 1981 and Order of June 16, 1981,

March 12, 1982: Commonwealth petition for rehearing

cn bane.

March 26, 1982: Cireuit court denied petition for re-

hearing.

June 22, 1982: Commonwealth petition to United States

Supreme Court for writ of certiorari.

duly 22, 1982: DVCCCA filed brief in opposition to

petition for certiorari.

October 12, 198. '

2 ‘nited States Supreme Court denied

petition for certiorari.

Memorandum anc Order, 23a

District Court

based on time reconstruction and contemporaneous rec-

ords. The hours which are based on reconstruction and

which cover the period from January 1, 1981 until August

20, 1981, will be denied as not being specific enough, not

necessary and not reasonable. Although Mr. Lanard has

attempted to adequately reconstruct the hours for this time

period, the court finds that it would neither be reasonable

nor fair to allow plaintiffs to be compensated for the sub-

stantial number of hours simply noted as ““Commonwealth

Request for 20 months,” “Negotiations re: Commonwealth

Request for 20 months,” ““DVCCCA Motion to "eclare

Comm. in violation of Consent Decree,” and “Answer to

Commonwealth Motion to Reconsider and Comments to

Comm. Preposed I/M Plans.” Further explanation as to

what work was performed is required. Additionally, the

requested hours for this phase include: 1) hours for prep-

aration for and attendance at a court hearing at which Mr.

Lanard’s presence was not necessary; and 2) hours for

time spent on reconstruction, time which would have been

unnecessary had Mr. Lanard kept contempor neous rec-

ords.

For the period in Phase IV commencing on August 24,

1981, Mr. Lanard kept contemporaneous time records.

The court finds that, with certain exceptions, such time was

necessary and not duplicative of work being performed by

any other attorney. The exceptions include hours requested

for Mr. Lanard’s preparation and attendance at hearings at

which his presence was unnecessary. Accordingly, the

court finds that a reasonable amount of time for the com-

pensable activities performed in Phase IV by Mr. Lanard

is 52 hours.

Plaintiffs have requested 337.10 hours for the work

performed in Phase IV by Mr. Balter. Initially it should

24a Memorandum and Order,

District Court

be noted that the work performed in this phase of the liti-

gation spanned a period of eleven months and involved a

number of court hearings, including a request for a stay

and an appeal to the court of appeals. The period also

covers activity which, while not litigation activity per se,

was, for the most part, sufficiently related to the enforce-

ment of the consent decree and the I/M program. Ac-

cordingly, upon examination of the carefully documented

records, the court determines that 330 hours is a reasonable

amount of time for the necessary work performed by Mr.

Balter in this phase.

The hourly rate for the Phase IV work performed by

Mr. Churchill will be compensated at a rate of $65.00 per

hour. The work performed included attendance at con-

ferences and the reading of drafts and opinions. Such ac-

tivity was short in duration, not requiring and actually pre-

cluding any type of significant legal analysis.

The work performed by Mr. Lanard for which he will

be compensated included: 1) research on the Common-

wealth’s motion for a stay and its appeal of this court’s

orders; 2) meetings with co-counsel; and 3) a meeting

with the Bucks County Garage Asscciation, Hamilton Test

System and Penn DOT, a meeting which this court deter-

mines was reasonable and necessary in order to protect

both plaintiffs’ rights and the integrity of the consent de-

cree. Although Mr. Lanard’s Phase IV activity included

some legal work, the legal work performed, as well as the

other activities, wes not the type of activity which should

be compensated at a high hourly rate reserved for more

difficult legal activities. Accordingly, Mr. Lanard’s work

in Phase iV will be compensated at a rate of $65.00 per

hour.

|

%

on

Memorandum and Order, 25a

District Court

The work performed by Mr. Balter in this phase was

work typical of work performed by lead counsel in any

complex litigation and involved representation of his cli-

ent’s interests both before this court and the court of ap-

peals on matters that could have delayed the implementa-

tion of the 1/M program beyond an acceptable period.

Accordingly, the activity should be compensated at a high

hourly rate. Mr. Balter’s activities in Phase IV will be com-

pensated at a rate of $100.00 per hour.

Phase IV

Compensable Hourly

Hours Rate

Mr. Churchill 5.1 $65 = $ 331.50

Mr. Lanard 52 $65 = $ 3,380.00

Mr. Balter 330 $100 — $33,000.00

Phase IV Lodestar ........ $36,711.50

(E) Phase V—Pennsylvania Legislature Prohibits

Compliance with Consent Decree

Following this court’s Order of June 16, 1981, the

Pennsylvania General Assembly, over veto of the Gover-

nor, enacted H.B. 456 into law, preventing expenditure of

state funds for implementation of the [/M program. The

substantial amount of litigation which followed is the basis

for the hours requested for this phase.’

‘The activities in Phase V for which plaintiffs seek compen-

sation were based on the following events:

October 12, 1981: Commonwealth moves for stay of con-

sent decree and for modification of consent decree as a result

of H.B. 456.

October 19, 1981: DVCCCA moves to declare defendants

in civi! contempt and to establish sanctions.

26a Memorandum and Order,

District Court

Plaintiffs’ request for 13.6 hours for Mr. Gilhool’s

werk will be reduced to 6.1 hours due to unnecessary at-

tendance at a court hearing and failure to describe in the

contemporaneous time cards what activities were per-

formed by Mr. Gilhool on the 5th and 6th of April 1982.

The remaining 6.1 hours were reasonable and necessary.

October 29, 1981: DVCCCA brief in opposition to Com-

monwealth’s motion for modification.

November 6, 1981: DVCCCA memorandum in re United

States memorandum.

November 20, 1981: Court hearing on DVCCCA con-

tempt motion.

December 12, 1981: DVCCCA submits brief to this court

concerning applicability of Contract Clause of the United

States Constitution.

December 30, 1981: United States submits report to this

court on status of [/M program.

January 5, 1982: DVCCCA comments on United States’

report.

January 22, 1982: This court declares defendants to be

in civil contempt and imposes civil contempt sanctions.

February 9, 1982: Commonwealth moves for stay of

January 22, 1982 Order.

February 22, 1982: DVCCCA memorandum in opposi-

tion to stay request.

February 18, 1982: This court denies Commonwealth

request for stay.

February 5, 1982: Commonwealth notice of appeal to

Third Cireuit Court of Appeals of this court’s Order of Janu.

ary 22, 1982.

March 8, 1982: Commonwealth motion for siay of Janu-

ary 22, 1982 contempt order.

March 16, 1982: DVCCCA brief in opposition to motion

for stay.

March 19, 1982: Cireuit court hearing on motion for

stay.

Memorandum and Order, 27a

District Court

Plaintiffs have requested 35.25 hours for the Phase V

work performed by Mr. Churchill. This request includes

March 19, 1982: Circuit court grants stay of contempt

sanction. .

March 23, 1982: DVCCCA petition for rehearing en

bane. -

April 6, 1982: Circuit court denies DVCCCA petitioi

for rehearing. 7

April 13, 1982: DVCCCA brief in opposition to Com-

monwealth’s appeal.

May 13, 1982: Circuit court oral arguments on Common-

wealth’s appeal of this court’s Order of January 22, 1982.

May 21, 1982: Cireuit court affirms this court ’'s Order

of January 22, 1982. =

June 7, 1982: Commonwealth motion for stay of circuit

court ruling. ; -

June 14, 1982: DVCCCA memorandum in opposition to

motion for stay.

June 23, 1982: Circuit court denies motion for stay.

June 27, 1982: Commonwealth application to United

States Supreme Court for stay.

July 29, 1982: DVCCCA memorandum to | nited States

Supreme Court in opposition to motion for stay. /

July 30, 1982: Mr. Justice Brennan denies motion for

stay. ee

August 6, 1982: Commonwealth application for stay to

Mr. Justice Rehnquist. toe

August 6, 1982: DVCCCA memorandum in opposition

to request for stay.

September 9, 1982: United States Supreme Court denies

application for stay.

August 17, 1982: Commonwealth petition for writ of

certiorari filed with Supreme Court. .

October 7, 1982: DVCCCA files brief in opposition to

Commonwealth's petition for certiorari.

November 1, 1982: United States Supreme Court denies

writ of certiorari.

28a Memorandum and Order,

District Court

unnecessary time spent at court hearings and at a press

conference which was not required under the consent de-

cree nor was necessary to protect plaintiffs’ rights under

the decree. The time requested also covers work which

was duplicative of the work being performed by Mr. Balter

and Mr. Lanard in Phase V. Accordingly, a reasonable

amount of time required to perform the necessary work

that Mr. Churchill performed in Phase V is 20 hours.

Plaintiffs request 105.5 hours for work performed by

Mr. Lanard in this phase, such request being based on con-

temporaneous time records of Mr. Lanard. Most of the

activities performed by Mr. Lanard in this phase were rea-

sonable and were related to the contempt proceedings and

the “contract clause” memo required by this court’s Order

of November 11, 1981. As such, the time spent will be

compensated with certain exceptions. The requested time

will be reduced due to unnecessary attendance at a court

hearing, time sheet notations which are illegible and indi-

cations that there is some uncertainty as to the significance

of certain activities (time sheet 9/25/81; 10/6/81; 10/19-

10/28/81; 11/20/81). A reasonable amount of time for

this work which was necessary and prolonged due pri-

marily to the presence of complex issues which required a

substantial number of hours, is 88 hours.

For Phase V work performed by Mr. Balter plaintiffs

request 465.9 hours. During this phase Mr. Balter worked

on the issues dealing with holding the Commonwealth in

contempt, issues that required extensive research and anal-

ysis. However, once the research and analysis had been

completed there was no need to spend the amount of time

that was spent on similar research and analysis for the stay

requests Or appeals. A reasonable amount of time for all

Memorandum and Order, 29a

District Court

of the activities associated with the contempt order in this

phase performed by Mr. Balter is 200 hours. Additionally,

)Mr. Balter performed certain activities in Phase V which,

while not related to the contempt order, were sufficiently

related to this litigation that they should be compensated.

A reasonable amount of time required to perform such ac-

tivities is 10 hours, such determination including denials of

requested time for press conferences and interviews and for

activities for which this court has determined there is in-

Fadequate explanation (time sheet 3/23/82; 6/24/82;

9/14/82).

; The work performed by Mr. Gilhool and Mr. Church-

ill in Phase V for which they will be compensated consisted

mostly of attending conferences and performing activities

for which no original legal analysis was required. More-

> over, the time spent on each activity was of such short dur-

ation that neither attorney could have been involved to any

great extent in the complex issues of Phase V. Accordingly,

Mr. Gilhool and Mr. Churchill will be compensated at a

rate of $25 per hour.

| Most of the activities which Mr. Lanard performed in

Phase V dealt with researching issues relating to the con-

tempt order and the Constitution’s contract clause. Since

Mr. Lanard was more involved in this phase of the litiga-

+ tion than Mr. Gilhool or Mr. Churchill, and since his ac-

% tivities consisted of legal analysis, he will be compensated

at a rate of $65 per hour.

Mr. Balter was unquestionably the lead counsel for

plaintiffs in this part of the litigation. He represented

plaintiffs at all the hearings as well as doing much of the

* groundwor). which was helpful in resolving the difficult

7 issues before this court. This was not the type of work that

would be assigned to any one other than an attorney with a

30a Memorandum and Order,

District Court

high degree of skill. Accordingly, Mr. Balter will be com-

pensated at a rate of $100.00 per hour.

Phase V

Compensable —_ Hourly

Hours Rate

Mr. Gilhool 6.1 $25 = $ 152.50

Mr. Churchill 20 $25 = $ 500.00

Mr. Lanard 88 $65 = $ 5,720.00

Mr. Balter 210 $100 = $21,000.00

Phase V Lodestar .:...... $27,372.50

(F) Phase VI—Intervention of Third Parties

A number of unsuccessful attempts were made to

intervene in this action.* Plaintiffs request that attorney

fees be awarded for their attempts to oppose these inter-

ventions. Defendants contend that they should not be held

accountable for actions of others to which plaintiffs re-

sponded.

: With regard to the intervention attempt by Represen-

tatives and Senators of the Commonwealth, defendants’

argument fails for the reason that the identities of those

who sought to intervene were not that distinct from that of

the executive branch so as to preclude recovery against

defendants. Moreover, for the purpose of being bound by

the consent decree, all the branches of the Commonwealth

were characterized as being as one. See Delaware Valley

Citizens’ Council for Clean Air v. Commonwealth of Penn-

sylvania, 678 F.2d 470 (3d Cir.) , cert. denied. 103 S.Ct.

*The attempted interventions, which plaintiffs opposed, were

attempts by Pennsylvania legislators and ‘the |

: : Vivi sle an attempt by the City

of Pittsburgh. satiate

Memorandum and Order, 3la

District Court

298 (1982). Additionally, plaintiffs’ opposition to all of

the intervention attempts was for the purpose of protecting

their rights under the consent decree. Had plaintiffs not

opposed the interventions, as they had the right to do, their

rights in enforcing the decree may have been prejudiced.

Such a conclusion is amply supported by a recent Pennsyl-

vania Supreme Court decision, the case having been

brought by a number of Pennsylvania legislators. That de-

cision purportedly eradicates plaintiffs’ right under the

consent decree.”

Based on contemporaneous time records of Mr. La-

nard, plaintiffs request 37.5 hours for time Mr. Lanard

spent on activities related to the intervention attempts by

state legislators. Such activities included the researching

and writing of the brief opposing intervention and prepa-

ration for argument before the court of appeals. The court

finds that 15 hours is a reasonable amount of time to be

spent on such activity.

Plaintiffs request 17.5 hours for work performed by

Mr. Balter on the intervention attempt by the City of Pitts-

burgh. The court finds that 13 hours is a reasonable

amount of time to spend on the activity, such activity being

preparation of a brief submitted to the court of appeals.

A reasonable hourly rate for the activities performed

by Mr. Lanard and Mr. Balter in Phase VI is $65.00 per

hour.

® As stated previously in note 3, supra, the part of the Penn-

sylvania Supreme Court's decision in Scanlon v. Commonwe alth of

Pennsylvania, Pa. , 467 A.2d 1108 (Pa. 1982), which sug-

gests that the federal consent decree is invalid is not binding on

this court and therefore does not affect plaintiffs’ rights under

the consent decree.

32a Memorandum and Order,

District Court

Phase VI

Compensable —_ Hourly

Hours Rate

Mr. Lanard 15 $65 = §$ 975.00

Mr. Balter 13 $65 = $ 845.00

Phase VI Lodestar ........ $1,820.00

(G) Phase VlIl—Certification of Exceptions to

Court Order Of January 22, 1982

Compensation sought for work in this phase of the

litigation is based on plaintiffs’ monitoring of the contempt

sanction and their opposition to the Commonwealth’s at-

tempt to certify certain projects as exceptions to this court’s

contempt Order of January 22, 1982. Both activities were

reasonably related to the litigation and necessary in order

to protect plaintiffs’ rights under the consent decree. As

such, the necessary hours expended should be compen-

sated.

Plaintiffs request 6.8 hours for Mr. Gilhool’s work in

Phase VII. All the hours will be denied as unnecessary

since they were duplicative of the hours spent by Mr. Balter

and Mr. Churchill. Mr. Churchil!’s hours, while not dupli-

cative, are to a certain extent inadequately documented and

include hours for unnecessary attendance at court hearings.

Accordingly, plaintiffs will be granted 5.7 of the 8.15 hours

requested for Mr. Churchill’s Phase VII work, such hours

being reasonable and necessary.

Plaintiffs request 88.3 hours for Phase VII work per-

formed by Mr. Balter. For the most part the hours cover

preparation for and attendance at court hearings and depo-

sitions dealing with the certification of certain highway

Sneak neGad 0 Ceti

Memorandum and Order, 33a

District Court

projects as exceptions to the contempt sanction. Although

this work was necessary the number of hours expended was

excessive. A reasonable number of hours necessary for all

the activities included in Phase VI1 performed by Mr. Balt-

er is 50 hours, the court having determined that the hours

spent on the memorandum to this court regarding the cer-

tification projects and on the subsequent appeal were ex-

cessive.

The hourly rate for work performed by Mr. Churchill

will be $65.00 and the hourly rate for Mr. Balter will be

$100 90, such rates being reasonable for the activities per-

formed.

Phase VII

Compensable _—_ Hourly

Hours Rate

Mr. Churchill 5.7 $65 $ 370.50

Mr. Balter 50 $100 == $5,000.00

Phase VII Lodestar........ $5,370.50

(H) Phase VIII—Passage of 1/M Legislation and

Vacating of Sanctions

Plaintiffs claim 43.5 hours for activities in connection

with: 1) passage of Act 3 of 1982"° which permitted im-

plementation of the I/M program to go forward; and

2) this court’s removal of the contempt sanctions on May

16, 1983. The number of requested hours in this phase is

43.5, all the hours being based on work performed by Mr.

Balter.

Defendants contest awarding fees for time spent on

‘preparation of a stipulated penalty motion” (Balter’s time

1” 1983 Pa. Legis. Serv. Act No. 1983-3 (Purdon).

34a Memorandum and Order,

District Court

sheet 5/9/83-5/12/83). Plaintiffs have stated that they

have no knowledge of such a motion (DVCCCA reply brief

at 27). Accordingly, no time will be awarded for such.

The hours spent during May 4, 1983, through May 6, 1983,

were excessive and will be reduced by one-half. The total

number of reasonable hours in Phase VIII necessary to this

litigation was 24 hours. A reasonable rate for these hours

expended is $65.00 per hour, the activities not requiring

any detailed legal analysis and consisting of several meet-

ings.

Phase VIII

Compensable Hourly

Hours Rate

Mr. Balter 24 $65 $1560.00

Phase VIII Lodestar........ $1560.00

(1) Phase 1X—Associated Activities

In this phase plaintiffs seek compensation for activ-

ities their attorneys performed in state court litigation and

in regulatory actions, such activities not directly required

by this court’s Orders.

a) State Court Litigation

Plaintiffs request a total of 23.6 hours for work their

attorneys performed in connection with attempts in state

court by several members of the Pennsylvania General

Assembly to prevent implementation of the I/M program.

See Burd v. Commonwealth of Pennsylvania, 66 Pa.

Commw. 129, 443 A.2d 1197 (1982)."' Defendants con-

™! Both the Burd case and Scanlon v. Commonwealth of Penn-

sylvania, 66 Pa. Commw. 129, 443 A.2d 1197 (1982), were appealed

rtrd wee

nha aaei ate «

Memorandum and Order, 35a

District Court

tend that such request should be denied alleging that:

1) they were the ones who prepared the legal documents

and presented all the legal arguments in this state litiga-

tion; and 2) plaintiffs’ role was relegated to submission of

an amicus brief. Defendants’ argument lacks merit. Based

on the past actions of defendants, any reasonable party in

plaintiffs’ position would be hesitant to rely solely on de-

fendants in an action where defendants were the ones seek-

ing implementation of the I/M program. The fact that

plaintiffs were seeking to protect their rights under the

consent decree in a forum different from the original forum

is not important. As long as plaintiffs’ activities were in

pursuit of protecting their rights under the decree it didn’t

matter whether the time spent was in this court, in the

library, or on a brief submitted in state court.

The request for .4 hours for review of the Burd case

by Mr. Churchill will be granted.

The requested 5 hours for a trip to Harrisburg by Mr.

Lanard for the case in which DVCCCA was amicus is de-

nied as unnecessary.

A reasonable amount of time spent by Mr. Balter on

this aspect of the case is 11.4 hours, the other hours

claimed not sufficiently related to the litigation or inade-

quately explained.

The preparation of the amicus brief by Mr. Balte: will

be compensated at an hourly rate of $65.00 and Mr.

Churchill’s review of the Burd case will be compensated at

an hourly rate of $25.00.

to the Pennsylvania Supreme Court. The supreme court's decision

of October 26, 1983, was in favor of the state legislators. See notes

3 and 9, supra.

36a Memorandum and Order,

District Court

b) EPA Pegulatory Activity

Plaintiffs, during the course of this litigation, partici-

pated in EPA hearings during which: 1) defendants re-

quested that EPA modify the state implement.ion plan

(“SIP’’) so that the I/M program would cover a smaller

geographic area; and 2) proposals of cut-offs of EPA fund-

ing were discussed.

The activities which occurred due to the defeidants’

request for a modification of the I/M program were re-

lated to this litigation since an EPA modification of the

1/M program would have affected plaintiffs’ rights under

the decree. For these activities plaintiffs will be compen-

sated. However, participation in hearings concerning the

possibility that the EPA would cut-off federal grants to

Pennsylvania was activity which was not sufficiently re-

lated to this litigation since any such EPA decision would

not have affected plaintiffs’ rights under the decree. There-

fore the hours spent on this latter activity will be denied.

Based on the foregoing, the court will grant, as a reasonable

number of hours, the 4 hours requested for Mr. Lanard’s

work. The court will also grant 6.8 hours as a reasonable

number of hours for work performed by Mr. Balter in this

phase.

Both Mr. Lanard and Mr. Balter will be compensated

at a rate of $65.00 per hour, . rate reasonable for the ac-

tivities involved.

Phase 1X

Compensable —_ Hourly

Hours Rate

a)

Mr. Churchill 4 $25 $ 10.00

Mr. Balter 11.4 $65 $ 741.00

ee ee ee ee eee

Memorandum and Order, 37a

District Court

b)

Mr. Lanard 4 $65 = $ 760.00

Mr. Balter 6.8 $65 = $ 442.00

Phase IX Lodestar........ $1,453.00

(J) Fee Petition

Plaintiffs request a total of 101.8 hours for prepara-

tion of the fee petition, 88.3 hours requested for Mr. Balt-

er’s work and 13.5 hours for Mr. Lanard’s work. Attorneys

may be compensated for time spent in the preparation of a

fee petition to the extent that the time was reasonably

necessary for obtaining a reasonable fee award. Prandini

v. National Tea Co., 585 F.2d 47, 54 (3d Cir. 1978).

A reasonable amount of time for Mr. Lanard’s work

on the petition is 10 hours.

Mr. Balter’s request of 88.3 hours for work on the fee

petition is excessive. Based on the time sheets submitted,

it is evident that Mr. Balter has been preparing the fee peti-

tion throughout this litigation. Whether this activity was

based on the hopeful expectation that the ‘itigation was to

cecse at that point in time or based on some other reason

is unimportant. What is important is that Mr. Balter con-

tinually prepared or updated the fee petition throughout

the various phases of this litigation and then used an ad-

ditional 40 hours at the end of the litigation for the same

activity. This court finds that 40 hours is a reasonable

amount of time necessary for Mr. Balter to prepare a fee

petition in this case based on the fact that the petition is

comprised of, for the most part, contemporaneous time

records and based on the fact that Mr. Balter continually

updated tne fee petition.

38a Memorandum and Order,

District Court

Plaintiffs have also submitted a supplemental memo-

randum in which they request hours for attendance at a

hearing concerning the fee petition as well as for hours

spent in answering interrogatories submitted by the de-

fendants. Since these requested hours include hours spent

by attorneys, other than Mr. Balter, whose presence was

unnecessary at the fee petition hearing and since the court

determines that plaintiffs have already been adequately

compensated for activity constituting fee petition prepara-

tion, the court will only grant as compensable time the 2

additional hours spent by Mr. Balter at the hearing. A rea-

sonable compensable hourly rate for the work performed

on the fee petition is $65.00.

Fee Petition

Compensable Hourly

Hours Pate

Mr. Lanard 10 $6" = $ 650.00e

Mr. Balter 42 $. $2,730.00

$3,380.0U

V. MULTIPLIER

After determining the lodestar amount of the fee, an

adjustment may be made. Lindy J, 487 F.2d 161 (3d Cir.

1973); Lindy 11, 540 F.2d 102 (3d Cir. 1976) ; Hughes v.

Repko, 578 F.2d 483 (3d Cir. 1978). The adjustment may

be based on the contingent nature of the case, the quality

of the work performed and the results obtained. Hensley

v. Eckerhart, 51 U.S.L.W. 4552, 4555 (May 16, 1983);

Lindy I at 169; Lindy I] at 117. Plaintiffs have requested

that this court use a multiplier of 2 for Phases V and VI

and a multiplier of 3 for Phase VII. Defendants argue that

- Ae «ty th alesse ts tal.

Memorandum and Order, 39a

District Court

if any tees are granted to plaintiffs no multiplier should be

used.

The contingeni nature of plaintiffs’ success has been

apparent throughout this litigation. Plaintiffs entered the

litigation against the U.S. Government and the Common-

wealth of Pennsylvania. The case involved new and novel

issues, the resolution of which had little or no precedent.

Commencing in Phase IV and continuing up until the pres-

ent, plaintiffs have had to defend their rights under the

consent decree due to numerous attempts by defendants

and others to overturn or circumvent this court’s Orders.

The quality of plaintiffs’ work was superior in the

phase in which this court imposed a civil contempt sanction

on defendants (Phase V). Even this court expressed its

concern for the avoidance of undue interference with es-

sential elements of state sovereignty in its decision to coun-

termand the decision of the state legislature not to expend

funds for the 1/M program. Delaware Valley Citizens’

Council for Clean Air v. Commonwealth of Pennsylvania,

533 F. Supp. 869 (E.D. Pa.) , aff'd 678 F.2d 470, cert. de-

nied, 103 S.Ct. 298 (1982). Plaintiffs’ work in this phase

heiped not only this court but also the court of appeals in

resolving this difficult issue. An increase based on the

quality of work performed which culminated ia an out-

standing result is fully justified. See Ursic v. Bethlehem

Mines, 719 F.2d 670, 674 (3d Cir. 1983).

Accordingly, based on the foregoing, a multiplier of

2 will be applied to the awarded fees of Phases IV and VII,

the phases which this court determines were the ones, in

addition to Phase V, where likelihood of success was least.

A multiplier of 4 will be applied to the awarded fees of

40a Memorandum and Order,

District Court

Phase V, such phase being one of the phases where even-

tual implementation of the I/M program seemed least

likely and the phase where plaintiffs’ work was superior.

Vi. COSTS

The Clean Air Act provides, in pertinent part, that

“The court . . . may award costs of litigation (including

... expert witness fees)... .”” 42 U.S.C. $7604 (d). Items

which may be taxed as costs are listed in 28 U.S.C. §1920:

(1) Fees of the clerk and marshal;

(2) Fees of the court reporter for all or any

part of the stenographic transcript necessarily ob-

tained for use in the case;

(3) Fees and disbursements for printing and

witnesses;

(4) Fees for exemplification and copies of

papers necessarily obtained for use in the case;

(5) wJocket fees under section 1923 of this

title;

(6) Compensation of court appointed experts,

compensation of interpreters, and salaries, fees, ex-

penses, and costs of special interpretation services

under section 1828 of this title.

Plaintiffs request a total of $10,664.78 in costs, ap-

portioned as follows: court reporters—$ 1,229.03; printing

—$8,903.75; and expert witness fee—$552.00. Defend-

ants contend that certain items included by plaintiffs’ re-

quest are not taxable because they are not provided for in

section 1920, not documented, not related to claims where

plaintiffs prevailed or not reasonably incurred.

sided Poy a

Memorandum and Orde;, 4la

District Court

As stated previously in this Opinion, the fact that a

plaintiff has not prevailed on every issue or claim presented

to this court will not prevent recovery where there has been

substantial success in achieving the result sought. See Hen-

sley, 51 U.S.L.W. 4552; Natural Resources Defense Coun-

cil v. Envir. Protection Agency, 484 F.2d 1331 (1st Cir.

1973). However, with respect to costs noi specifically au-

thorized by statute, this court should exercise its discretion

sparingly. Walker v. Robbins Hose Co. No. 1, Inc., 622

F.2d 692, 694 (3d Cir. 1980).

Plaintiff has requesved $1,229.03 for court reporter

costs incurred for the depositions of the designee of the

U.S. Secretary of Transportation and of employees of Penn

DOT. These depositions were taken in preparation for the

court hearing which was convened to determine whether

seven highway projects were to be certified as exceptions

to the court’s contempt Order (Phase VII). Such costs are

taxable since they were reasonable and necessary to the

case. See State of Illinois v. Sangamo Const. Co., 657 F.2d

855 (7th Cir. 1981); Hugney v. Consolidation Coal Co.,

59 F.R.D. 258 (W.D. Pa. 1978).

Plaintiffs seek an award in the sum of $552.00 for the

fee of an expert. Mr. Robert Morris, an expert in transpor-

tation planning, assisted plaintiffs at the above mentioned

depositions. Mr. Morris never testified before this court.

Expert witness fees not provided for by statute may be

taxed as costs when the expert’s testimony was helpful to

the cour: and played an important role in resolving the

issues in the case. Roberts v. S.S. Kyriakoula D. Lemos,

651 F.2d 201 (3d Cir. 1981) ; Commonwealth of Pennsyl-

vania vy. O'Neill, 431 F. Supp. 700 (E.D. Pa. 1977), aff'd

mem., 573 F.2d 1301 (3d Cir. 1978). Ordinarily, no fees

om

42a Memorandum and Order,

District Court

may be allowed for witnesses who do not testify at trial.

Wehr v. Burroughs Corp., 477 F. Supp. 1012 (E.D. Pa.

1979). Since Mr. Morris did not testify before this court

and since this court is unable to determine whether Mr.

Morris’ expertise helped resolve any issue, the request for

compensation of his fees will be denied.

Plaintiff has requested a sum of $3557.75 for repro-

duction costs of briefs to the United States Supreme Court.

While the cost of the transcript of record submitted to the

Supreme Court is a taxable item in the court below, the vx-

pense of printing briefs is not taxable. Sup. Ct. R. 50(.3).

Accordingly, the request for reproduction costs of Supreme

Court briefs will be denied.

Plaintiffs’ request for the cost of printing conies used

in this litigation is reasonable and the cost of such copies

was a necessary expense in this litigation. Therefore. such

request will be granted in the amount of $5,346.00.

Plaintiffs’ request for $100.00 for their share of the

cost of the transcript ordered by the court of appeals in

Delaware Valley Citizens’ Council for Clean Air v. Com-

monwealth of Pennsylvania, 674 F.2d 97% (3d Cir. 1982)

will be granted. Fed. R. App. P. 39(e).

COST ALLOWED

Transcript Ordered by Third Circuit $ 100.00

Court Reporter Costs re: Depositions $1,229.03

Reproduction Costs $5,346.00

Total Allowed Costs ....... $6,675.03

An appropriate Order will be entered ;

Memorandum and Order, 43a

District Court

APPENDIX

Lodestar Multiplier

Phase | $ 4,478.50 I = $ 4,478.50

Phase II $ 1,722.50 l = $ 1,722.50

Phase III $ 1,745.00 I > $ 1,745.00

Phase LV $36,711.50 2 = $ 73,723.00

Phase V $27,372.50 4 = $109,490.00

Phase VI $ 1,820.00 l = $ 1,820.00

Phase VII $ 5,370.5C 2 = $ 10,741.00

Phase VIII $ 1,560.00 | = $ 1,560.00

Phase IX $ 1,453.00 I $ 1,453.00

$206,353.00

Fee Petition Preparation

Compensable Hourly

Hours Rate

Mr. Lanard 10 $65 $ 650.00

Mr. Balter 42 $65 $2,730.00

$ 3,380.00

Total Attorney Fee Award ........ $209,813.00

Costs Awarded ................. $ 6,675.03

44a Memorandum and Order,

District Court

IN THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF PENNSYLVANIA

CIVIL ACTIONS

No. 76-2068

DELAWARE VALLEY CITIZENS’ COUNCIL

FOR CLEAN AIR, et al.

V.

COMMONWEALTH OF PENNSYLVANIA, et al.

No. 77-0619

UNITED STATES OF AMERICA

V.

COMMONWEALTH OF PENNSYLVANIA, et al.

ORDER

AND NOW, TO WIT, this 24th day of February,

1984, for the reasons stated in the foregoing Memorandum,

IT IS ORDERED that:

1. Plaintiffs’ motion for attorneys’ fees and costs is

granted as follows:

a) Plaintiffs are awarded attorneys’ fees in the

sum of $209,813.00.

b) Plaintiffs are awarded costs in the sum of

$6,675.03.

Memorandum and Order, 45a

District Court

2. Defendants shall pay to Jerome Balter, Esquire,

the petitioning attorney, the total sum of $216,488.03 with-

in thirty (30) days of the date of this Order with interest to

accrue thereafter until such time as payment is made.

(s) Louis C. Bechtle

Louis C. Bechtle, J.

Entered 2-27-84

Clerk of Court

46a Opinion, Court of Appeals

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 84-1179 & 84-1208

DELAWARE VALLEY CITIZENS’ COUNCIL FOR

CLEAN AIR, ET AL., AMERICAN LUNG ASSOCIA-

TION OF PHILADELPHIA, AND MONTGOMERY

COUNTY, DELCHESTER LUNG ASSOCIATION,

SIERRA CLUB, PENNSYLVANIA CHAPTER FRIENDS

OF THE EARTH OF THE DELAWARE VALLEY,

CITIZENS’ “ DMMITTEE FOR ENVIRONMENTAL

CONTROL, QUINN, KEVIN, FARRELL, KAYSI,

WEISS, RUTH G., KLINKNER, JOHN, BIEZ, ELIZA-

BETH S., SHULMAN, MONA

VS.

COMMONWEALTH OF PA., & TRAIN, RUSSELL E.,

Ind. & as ADMINISTRATOR of the ENVIRONMEN-

TAL PROTECTION AGENCY, ET AL., SHERLOCK,

WILLIAM T., Individually and as Secretary of the PA

Dept. of Transportation, GODDARD, MAURICE K., In-

dividually and as Secretary of the PA Dept. of Environ-

mental Resources, SNYDER, DANIEL J., III, Individually

and as Regional Administrator of the Environmental! Pro-

tection Agency, Region II]

(D.C. Civil 76-2068)

Opinion, Court of Appeals 47a

UNITED STATES OF AMERICA

VS.

COMMONWEALTH OF PENNSYLVANIA; THE

PENNSYLVANIA DEPARTMENT OF TRANSPORTA-

TION and WILLIAM T. SHERLOCK, SECRETARY OF

THE PENNSYLVANIA DEPARTMENT OF TRANS-

PORTATION; THE PENNSYLVANIA DEPARTMENT

OF ENVIRONMENTAL RESOURCES and MAURICE

K. GODDARD, SECRETARY OF THE PENNSYLVA-

NIA DEPARTMENT OF ENVIRONMENTAL RE-

SOURCES

(D.C. Civil 77-619)

Commonwealth of Pennsylvania, Secretary of Pennsylva-

nia Department of Transportation and Secretary of Penn-

sylvania Department of Environmental Resources,

Appellants in No. 84-1179

Delaware Valley Citizens’ Council for Clean Air,

Appellant in No. 84-1208

—

On Appeal from the United States

District Court for the

Eastern District of Pennsylvania

(D.C. Civ. Nos. 76-2068 & 77-619)

48a Opinion, Court of Appeals

Argued December 6, 1984

Before: ALDISERT, Chief Judge,

BECKER, Circuit Judge,

and STERN, District Judge*

(Filed May 14, 1985)

JAMES D. CRAWFORD (Argued)

SCHNADER, HARRISON, SEGAL & LEWIS

1600 Market Street, Suite 3600

Philadelphia, PA 19103

Attorneys for Delaware Valley Citizens’

Council for Clean Air, Appellees in No.

84-1179 and Cross-Appellants in No.

84-1208

SPENCER A. MANTHORPE

Chief Counsel

JOHN M. HRUBOVCAK (Argued)

Assistant Counsel

Dept. of Transportation

Harrisburg, Pa. 17120

Appellant in No. 84-1179 &

Cross-Appellee in No, 84-1208

* Honorable Herbert J. Stern, United States District -ludge

for the District of New Jersey, sitting by designation.

Opinion, Court of Appeals 49a

OPINION OF THE COURT

BECKER, Circuit Judge.

This opinion addresses an appeal by the Common-

wealth of Pennsylvania’ from a large judgment for attor-

neys’ fees and costs in favor of the Delaware Valley Citi-

zens’ Council for Clean Air (DVCCCA), pursuant to the

attorneys’ fee provision contained in §304 (d) of the Clean

Air Act (the Act), 42 U.S.C. §7604(d), in an action

under the citizen lawsuit provision of the Act, 42 U.S.C.

§7604 (a). We also consider a cross-appeal by DVCCCA.

The underlying action was instituted by DVCCCA to

compel Pennsylvania to meet federal air quality standards

in several areas of the state. The litigation was ostensibly

concluded in 1978 by entry of a consent decree establish-

ing a program for the inspection and maintenance of auto-

mobile emissions systems in those geographic areas (the

I1/M program). After obtaining the consent decree, how-

ever, DVCCCA was confronted with prolonged and de-

termined resistance by the Commonwealth and the Penn-

sylvania General Assembly to the decree’s implementa-

tion, and its implementation was accomplished only after

protracted, bitter, and highly publicized enforcement pro-

ceedings. These fee petition appeals relate only to work

performed after entry of the consent decree.

1 The appeal is also filed on behalf of the cabinet secretaries

of two departments of Commonwealth government, the Depart-

ment of Environmental! Resources (DER) and the Department

of Transportation (PennDOT). However, we shall refer to ap-

pellants collectively as *‘the Commonwealth.’

50a Opinion, Court of Appeals

While the appeals present a number of questions, the

most important is whether attorneys’ fees may be awarded

for the work of DVCCCA’s in-house counsel. Over the

Commonwealth’s objection, we will affirm the district

court’s award of fees for such work. Moreover, for the

reasons that follow, we will affirm the judgment of the

district court in all other respects as well.

I. BACKGROUND FACTS AND THE FEE PETITION

RULING

The relevant facts surrounding the complex litigation

underlying this attorney’s fee request have very recently

been summarized by this Court and need not be repeated

here. See DVCCCA v. Commonwealth of Pennsylvania,

755 F.2d 38, 40-41 (3d Cir. 1985).* We will therefore

turn directly to a brief description of the fee petition litiga-

tion itself.

In its petition to the district court for attorneys’ fees

and costs, plaintiff divided its request for compensation

into nine phases.” Tine Commonwealth acceded to this

2 For additional discussions of the legal and factual back-

ground of this litigation, see DVCCCA v. Commonwealth of Penn-

sylvania, 674 F.2d 970 (3d Cir.), cert. denied, 458 U.S. 1125

(1982); DVCCCA v. Commonwealth of Pennsylvania, 674 F.2d

976 (3d Cir.), cert. denied, 459 U.S. 905 (1982); DVCCCA vy.

Commonwealth of Pennsylvania, 674 F.2d 987 (3d Cir. 1982) ;

DVCCCA vy. Commonwealth of Pennsylvania, 678 F.2d 470 (3d

Cir.), cert. denied, 459 U.S. 969 (1982).

3 The Commonwealth appeals the award of fees for work done

during five of these phases, and the award of a multiplier for work

done during three others. The work performed during these

phases is discussed infra.

Opinion, Court of Appeals 5la

approach, as did the district court, which made its fee

award in terms of the nine phases.‘ The district court

considered an extensive record and decided the fee peti-

tion application in a comprehensive opinion of some 40

pages. While we need not summarize the district court’s

opinion (the challenged portions are discussed infra), it

is important to note that the court took much care in ex-

amining the fee petition and disallowed a significant num-

ber of claimed hours because it found them inadequately

documented, duplicative, unnecessary, or excessive. The

court awarded attorneys fees of $209,813.00 for work in

the underlying litigation representing a lodestar of $82,-

233.50 augmented by multipliers of two for phases IV and

VII and four for Phase V.° The court then stayed its

order pending appeal.

Il. COUNSEL FEES UNDER THE CLEAN AIR ACT

This fee petition is brought pursuant to the Clean Air

Act’s counsel fee provision, §304 (d) , 42 U.S.C. §7604(d),

which states:

*We approve the district court’s exercise of discretion to

treat the fee application in terms of phases of the case. See In-

stitutionalized Juveniles v. Secretary of Public Welfare, Nos. 83-

1696 & 83-1722 (3d. Cir. Mar. 26, 1985). As we noted in that

ease, slip op. at 44 n. 36, structural injunction cases such as this

one, where the litigation proceeds in a number of discrete phases

after the entry of an equitable decree, afford the district court

flexibility to treat the litigation in separate categories for fee

petition purposes if it so desires.

5 It also allowed $3,380.00 for work on the fee petitions and

$5675.03 in costs.

52a Opinion, Court of Appeals

(d) Award of costs; security

The court, in issuing any final order in any ac-

tion brought pursuant to subsection (a) of this sec-

tion, may award costs of litigation (including reason-

able attorney and expert witness fees) to any party,

whenever the court determines such award is ap-

propriate.

In Ruckelshaus v. Sierra Club, 103 S.Ct. 3274

(1983) , the Supreme Court held that “absent some degree

of success on the merits by the claimant, it is not ‘appro-

priate’ for a federal court to award attorney’s fees.” Id.

at 3281.° Plaintiff is eligible for attorneys’ fees, there-

fore, only if it kas achieved “‘some success on the merits.”

If plaintiff meets this threshold eligibility require-

ment, it is entitled under §304(d) to an award of “‘reason-

able” fees. This part of the Clean Air Act’s attorneys’ fee

provision is consonant with the requirements of most other

statutory attorneys’ fee provisions, including 42 U.S.C.

$1988, and we see no reason why the calculation of a rea-

sonable fee for Clean Air Act purposes shculd differ from

the same calculation that courts undertake pursuant to

other provisions with the identical standard. According-

ly, we hold that the jurisprudence regarding the calcula-

tion of reasonable attorneys’ fees developed in connection

with other attorneys’ fee statutes—particularly §1988—

is applicable to cases brought pursuant to §304(d). This

®6In Sierra Club, the Court specifically considered the fee

award language of §307(f) of the Clean Air Act, 42 U.S.C. 7607

(f). This language is identical to the language of §304(d), 42

U.S.C. §7604(d), which we consider in this case. The Court in-

dicated that its holding applied with equal force to the award of

attorney’s fees under §304(d). See 103 S.Ct. at 3280-81.

Opinion, Court of Appeals 53a

includes the jurisprudence concerning the calculation of

a lodestar, the determination of reasonable hourly rates,

and the enhancement of a fee award based on the quality

of the work. See generally, Blum v. Stenson, 104 S.Ct.

1541 (1984); Institutionalized Juveniles v. Secretary of

Public Welfare, Nos. 83-1696 & 83-1722 (3d Cir. Mar.

26, 1985).

Having set forth the contours of the Clean Air Act’s

attorneys’ fee provision, we now turn to a review of the

challenged aspects of the fee award in this case.

III. FEES FOR SPECIFIC PHASES OF THE

PROCEEDINGS

The district court included in the lodestar five cate-

gories of work (pnases I, II, III, VI, and IX) for which

the Commonwealth contends that fees cannot be awarded.

Before we examine these contentions, we state two gen-

eral propositions. First, we have no doubt that, by gain-

ing implementation of the consent decree, plaintiff has

achieved “‘some success” in its efforts and a fee award is

therefore “‘appropriate’’ under §304(d) of the Act. We

hold, therefore, that the work done in each of the five

phases is compensable if the work contributed to

DVCCCA’s successful efforts to implement the consent

decree.

Second, we point out that the district court made

certain findings that bear generally upon the relationship

between work in these phases and success in implement-

ing the decree. The court stated:

54a Opinion, Court of Appeals

During the litigation and up until the present

day, there has existed an intense adversarial atmos-

phere among all concerned parties. The defendants’

presence has constantly been dominated by either a

policy or an attitude that has tried to prohibit or de-

lay the implementation of the I1/M program in re-

sponse to which the plaintiffs have constantly held

fast to their position, without being totally inflexible.

Additionally, plaintiffs have been required to par-

take in activities which, while not directly required

under the consent decree, were sufficiently related to

its goals and the ongoing litigation that such efforts

should, and will be compensated for in some reason-

able measure.

These findings, based upon the district court’s nine-year

experience in this case, are subject to the cleariy erroneous

rule. We conclude that they should not be disturbed.

We now consider whether the district court erred in

awarding fees for work performed during the five phases

at issue. Phase I involved the portion of the litigation

that followed the Commonwealth’s initial delay in promul-

gating proposed regulations for the I/M program as re-

quired by the consent decree. The Commonwealth ob-

jects to the award of fees for this work because it con-

tends that DVCCCA acted in bad faith in refusing to

negotiate what the Commonwealth considered a suitable

extension of time for fulfillment of its obligations to pub-

lish the proposed regulations. The district court found

that DVCCCA had not acted in bad faith, that its actions

were appropriate, and indeed that a court order com-

pelling compliance by the Commonwealth was required

for the protection of DVCCCA’s rights under the decree.

Opinion, Court of Appeals 55a

Phase II of the litigation primarily involved the sub-

mission by DVCCCA of comments to the proposed regu-

lations that were required by the consent decree. The

Commonwealth objects to the award of fees for this work

because any person may submit comments on proposed

regulations and the work was technical, rather than legal.

The district court held that because DVCCCA was a party

to the consent decree it had a special interest in comment-

ing on the proposed regulations. The district court con-

cluded that DVCCCA’s efforts to ensure that the regula-

tions were consistent with the consent decree should be

compensated.

Phase III involved negotiations over a modification

to the consent decree undertaken by the parties in the

wake of legislative activity by the Pennsylvania General

Assembly designed to thwart its implementation. The

district court found that this work was necessitated by the

Commonwealth’s actions and was vital to the survival of

the rights of DVCCCA and of the public under the con-

sent decree.

We affirm the district court’s decision to award fees

for phases I, II, and III for the reasons stated by that

court. DVCCCA’s work during each of these phases con-

tributed to its successful efforts to enforce the consent de-

cree. The district court’s findings are not clearly errone-

ous, and it correctly applied the law.

Phase VI involved plaintiff’s successful opposition

to the intervention of various Pennsylvania legislators in

the underlying action. Defendants also opposed the at-

tempt to intervene. The Commonwealth argues, there-

fore, that it should not have to pay the fees awarded for

work on this phase, and that, if fees are to be awarded,

‘

56a Opinion, Court of Appeals

they should be assessed against the proposed intervenors.

The district court concluded that the Commonwealth was

liable for fees for three reasons: the identity of the legis-

lators was not wholly independent from the identity of the

executive; all branches of the Commonwealth were equal-

ly bound by the consent decree; and plaintiff’s opposition

to intervention was necessary for it to protect its rights

thereunder.

The Commonwealth’s position is not without force,

but it is ultimately unpersuasive, because in this context

we cannot parse out the roles and responsibilities of vari-

ous branches of the state government. The intentions of

the would-be intervenors were subsequently made clear

by their instigation of the litigation leading to the Penn-

sylvania Supreme Court decision in Scanlon v. Common-

wealth of Pennsylvania, 502 Pa. 577, 590, 467 A.2d 1108

(1983), which played a role in retarding implementation

of the I/M program. As the district court indicated, plain-

tiff’s work was necessary in its continuing struggle, re-

sisted by various agencies of the Commonwealth at every

turn, to implement the requirements of the consent de-

cree; an award of fees is therefore appropriate.

Finally, the Commonwealth objects to the award of

fees for work on phase IX of the litigation. During this

phase, DVCCCA submitted an amicus brief in the Scan-

lon litigation in state court in opposition to an attempt by

several members of the Pennsylvania General Assembly

to prevent implementation of the I/M program; addition-

ally, DVCCCA participated in EPA regulatory proceed-

ings, opposing the Commonwealth’s request to modify its

state plan to provide for a reduced coverage area for the

1/M program.

Opinion, Court of Appeals 57a

In regard to the latter portion of the work, the dis-

trict court properly concluded that, because adoption of

the state plan modification would have impaired the rights

won by DVCCCA in the consent decree, an award of fees

was proper. In regard to DVCCCA’s work in state court,

the district court concluded that DVCCCA had acted rea-

sonably in deciding that involvement in the state court

proceeding was important in vindicating its rights under

the consent decree. We agree that the award of fees for

this work was proper. By pursuing the battle in the state

courts, plaintiff materially aided its position in defense

of the consent decree. As with the intervention issue,

DVCCCA acted reasonably in refusing to rely on defend-

ants to promote DVCCCA’s interests. Plaintiff’s amicus

brief thus contributed to its ultimately successful efforts

to enforce the decree. We will therefore affirm the dis-

trict court’s fee award for phase IX.’

7 We note that the Supreme Court recently held in Webb v.

Board of Educ. of Dyer County, Tenn., 53 U.S.L.W. 4473 (U.S.

Apr. 16, 1985), that fees may be recovered under 42 U.S.C. §1988

for time spent by counsel pursuing ‘‘optional administrative pro-

ceedings,’’ id. at 4474, so long as counsel’s work ‘‘was both useful

and of a type ordinarily necessary to advance the . . . litigation’’

to the point where the party prevailed. Jd. at 4476. Application

of the test is to be left to the discretion of the district court. /d.

Assuming arguendo that this test applies to counsel fee awards

under the Clean Air Act and to time spent by counsel in state

judicial as well as administrative proceedings, we conclude that

the award of fees was appropriate for all phases in this case. The

work by counsel in phase II, which involved informal state ad-

ministrative proceedings, and in phases VI and IX, which in-

volved state judicial proceedings, was useful and necessary for

securing full enforcement of the decree. An award of fees was

therefore appropriate under Webb.

58a Opinion, Court of Appeals

IV. FEES FOR IN-HOUSE COUNSEL

James S. Lanard, who served as Executive Director

of DVCCCA from 1978 to 1982, but who is also a mem-

ber of the bar of this Court, entered his appearance and

actively participated in the litigation in cooperation with

DVCCCA’s outside counsel, lawyers of the Public Interest

Law Center of Philadelphia (PILCOP). The Common-

wealth has objected to an award of fees to Lanard on the

grounds that, because DVCCCA had outside counsel,

Lanard was part of the client group. The district court,

noting that Lanard entered an appearance in the litiga-

tion, that he was, in fact, the only individual working on

many aspects of the case, and that he performed a large

part of the activity for which compensation is sought,

awarded counsel fees for Lanard’s work. We will af-

firm.

As an initial matter, we agree with the Common-

wealth that in-house counsel is not entitled to a court

award of attorneys’ fees for doing client work, such as

furnishing information or documents to outside counsel.

However, the record clearly reflects that Lanard’s role was

in fact that of a lawyer participating in the litigation.

Lanard signed pleadings, performed legal research, wrote

briefs, prepared for hearings and arguments, participated

in proceedings before the district court, and presented

oral argument to this Court.

°. The Commonwealth argues that the relevant rule of

law is that which holds a pro se litigant ineligible for at-

torneys’ fees. See, e.g., Pitts v. Vaughn, 679 F.2d 311

(3d Cir. 1982); Cunningham v. FBI, 664 F.2d 383 (3d

Cir. 1981). In Cunningham, however, we specifically

=

~

Opinion, Court of Appeals 59a

left open the question presented by this case, i.e., whether

a litigant represented by salaried in-house counsel may re-

ceive attorneys’ fees. Jd. at 385. Moreover, the Com-

monwealth’s position against awarding fees to in-house

counsel, in our view, conflicts significantly with the pur-

poses of the citizen suit provisions of the Clean Air Act.

A rule against reimbursement of in-house counsel would,

by forcing the use of more expensive outside counsel,

create a disincentive for any public interest or citizens

group contemplating the institution of litigation to benefit

the environment. Conversely, a rule in favor of such re-

imbursement would encourage litigants who seek to en-

force the Act. We thus hold that attorneys fees may be

awarded for the litigation activity of in-house counsel who

has entered an appearance and played an active role in

handling the litigation. Accordingly, we will uphold the

district court’s decision to award fees for the work of

Lanard.

The Commonwealth also asserts that an award of

fees to DVCCCA for some of Lanard’s work would give

rise to “double counting.” As we have explained above,

however, the district court properly and carefully re-

viewed any possible duplication of effort, noting that

Lanard “‘performed a large part of all the activity for which

plaintiff now seeks compensation.” The amount of the

counsel fee award for Lanard’s activities will also be af-

firmed.

V. THE HOURLY RATES

In its cross-appeal, plaintiff contends that the district

court did not set forth an explanation of its determination

60a Opinion, Court of Appeals

of a reasonably hourly rate that allows us to conduct “‘care-

ful appellate review.” See Ursic v. Bethlehem Mines, 719

F.2d 670, 675 (3d Cir. 1983). Plaintiff asserts that

“what little explanation there is suggests that the court

gave inadequate attention to the experience and back-

ground of several of DVCCCA’s attorneys and to the

equivalent rates charged by lawyers in private practice.”

The “explanation” of which plaintiff complains was

given by the district court as follows. In its opinion, the

court stated that it had evaluated the “status, reputation

and experience of the individual attorneys who performed

the [relevant] activity.” The court stated that, in its

view, $100 was a reasonable average hourly rate* for work

that it found to be most difficult. For work that the court

found could have been done by an attorney working at

the associate level, an average hourly rate of $65 was ap-

plied. For work associated with legal work but which

required little or no legal ability, the court granted an

average hourly rate of $25.

Plaintiff argues that this “evaluation” was not suf-

ficiently detailed and that the evaluation was not reflected

in the hourly rate calculation. Plaintiff asserts that the

court ignored the varying experience and expertise of

DVCCCA’s attorneys and disregarded the salaries earned

by private attorneys with similar experience and expertise

in equivalent litigation. More specifically, plaintiff com-

plains that attorneys Albert Slap, Michael Churchill,

* Acknowledging that attorneys’ fees rise over a period of

time and that the period covered by the fee petition spanned five

years, the court caleulated an average rate for each type of work

performed during the litigation.

Opinion, Court of Appeals 6la

Thomas Gilhool, and Jerome Balter were lawyers of great

experience and stature who were entitled to high hourly

rates, particularly in this complex and prolonged litiga-

tion that involved, in the district court’s own estimation,

new and novel issues. Plaintiff also points to higher

hourly rates awarded to some of these same attorneys by

judges of the District Court for the Eastern District of

Pennsylvania in other litigation.

The Commonwealth rejoins by pointing to other evi-

dence in the record of rates awarded by courts and charged

by Philadelphia law firms in the general range awarded

by the district court. The Commonwealth also submits

that, to the extent that Gilhool and Churchill were awarded

low rates, it was only for performing activities of mar-

ginal legal character for which no original legal analysis

was required.

As an initial matter, we conclude that the district

court did not abuse its discretion in fixing hourly rates of

$100 for partner level work, $65 for associate level work,

and $25 for work of only marginal legal character. We

believe, however, that the court’s decision to award the

lower rates for certain hours presents a more difficult ques-

tion, especially with respect to a small number of hours

of the work of Gilhool and Churchill, both experienced

and extremely able counsel. The district court justified

its action (awards of $65 and $25 per hour for certain

work) on the grounds that the work at issue—even

though carried out by such accomplished advocates—was

either at the associate level or was mundane or minor in

character and that the attorneys were therefore not en-

titled to their normal rate. In /n re Fine Paper Antitrust

Litigation, 751 F.2d 562 (3d Cir. 1984), we reviewed

62a Opinion, Court of Appeals

similar action by a district court, concluding that the dis-

trict court did not abuse its discretion in reducing the

rates for substantial amounts of partner time to associate

level. Jd. at 59193 (‘‘the court’s ruling . . . may be set

aside only if predicated on clearly erroneous findings of

fact or if it is so arbitrary and capricious as to amount to

abuse.”’) .”

We review the district court’s action here under the

same standard as in Fine Paper. Although the question

is close, recognizing that the district court had intimate

familiarity with the case and that it took great care in

scrutinizing the fee petitions, we must defer to the court’s

conclusion that Balter was directing the litigation and that

Gilhool and Churchill’s services were, in some instances,

either at the associate level or ministerial in character."

In sum, we hold that the district court did not abuse its

discretion, and thus the court’s decisions on hourly rates

will be affirmed.

®To the extent that senior attorneys counsel their younger

associates as to strategy or evaluate the factual and legal positions

of their client, the work of the senior attorneys should be com-

pensated at partner rates. The record in this case, however, pro-

vides an insuff’cient basis for reversing the district court’s award

of fees on this basis, given its detailed knowledge of the case.

1° The vast bulk of the work was performed by Balter and

Lanard, both inexperienced attorneys. Balter was admitted to

the bar in 1977 and Lanard in 1978 (when the litigation was

already underway) and neither had any prior significant litiga-

tion experience. The fees awarded for their work, which con-

stituted the vast bulk of hours involved, was plainly appropriate.

A small number of hours were at issue for Slap and Beller, the

latter also an inexperienced lawyer. The district court did not

abuse its discretion in fixing the hourly rates for each of these

attorneys.

Opinion, Court of Appeals 63a

VI. “THE SECOND CHAIR”

Plaintiff appeals the district court’s disallowance of

time spent by more than one attorney at hearings because

“only one attorney spoke on behalf of the DVCCCA.”

Plaintiff concedes that multiple attendance at hearings

may sometimes, or even often, be unnecessary, but asserts

that the adoption of a per se rule that multiple representa-

tion is always unreasonable is arbitrary and incorrect. In

plaintiff’s view, the court ignored the underlying reason-

ableness of the common practice of attorneys to have more

than one person present.

The course followed by the district court here was

similar to that followed by the district court in Fine Paper.

In that case we considered the district court’s exclusion

of fees for representation by more than one attorney at

pretrial conferences and affirmed its decision under an

abuse of discretion standard. Id. at 595. We conclude

that the district court in this case carefully examined the

need for the “second chair” at particular hearings, and

that it did not abuse its discretion in denying fees therefor.

We also conclude that denying fees for the “second chair”

attorney does not conflict with the Clean Air Act. We

will therefore affirm the district court’s denial of fees for

the “‘second chair.”

VII. THE MULTIPLIER

’ We now turn to defendants’ contention that the dis-

trict court erred in making an upward adjustment of the

64a Opinion, Court of Appeals

various lodestars. On this point the panel is in agreement

as to what constitutes the controlling legal precepts, but

divides on the question of application of these precepts

to the facts found by the trial judge. Chief Judge Aldisert

and Judge Stern affirm the district court; Judge Becker

dissents in part for reasons set forth infra at note 12.

The majority believes that this was “the rare case

where the fee applicant offer[ed] specific evidence to

show that the quality of service rendered was superior to

that one reasonably should expect in light of the hourly

rates charged and that the success was ‘exceptional.’ ”

Blum v. Stenson, 104 S.Ct. 1541, 1549 (1984). The

increase of a lodestar is committed to the sound discretion

of the district court, and this court ‘“‘may not reverse where

the trial court employs correct standards and procedures,

and makes findings of fact not clearly erroneous.” Lindy

Brothers Builders, Inc. of Philadelphia v. American Radia-

tor & Standard Sanitary Corp., 540 F.2d 102, 116 (3d

Cir. 1976) (in banc) (“Lindy II’). The appropriate in-

quiry, then, is whether in light of Blum the district court

employed proper standards.

Blum involved review of a fee award under 42 U.S.C.

§1983. In that case the district court increased the lode-

star by 50 percent, citing as rc.sons the complexity of the

litigation, the novelty of issues, the high quality of repre-

sentation, the ‘‘ ‘great benefit’ to the class, and, the ‘riski-

ness’ of the law suit.”” 104 S.Ct. at 1548. THe Supreme

Court held that this recital of factors was insufficient to

justify an upward adjustment of the lodestar. It reasoned

that novelty and complexity of issues already are reflected

in the lodestar, that only in a “rare case’’ where the fee

appellant offers specific evidence to show the superior

Opinion, Court of Appeals 65a

nature of the services rendered and success was excep-

tional should quality of representation justify increasing

the lodestar, and no evidence justified an increase based

on the number of persons benefitted. Jd. at 1548-49.

As to contingency, the Court noted that the fee applicants

did not identify any risks in their affidavits or brief to

the district court and therefore an increase in the lodestar

on this basis was unjustified. Jd. The Court expressly

left open the question of whether the risk of not being a

prevailing party could ever justify a fee increase. Id. at

1550 n. 17.

This litigation centers on the Commonwealth’s en-

vironmental plan, submitted 11 years ago, to conform with

federal standards for carbon monoxide and ozone levels

in the state’s two metropolitan centers, greater Philadel-

phia and greater Pittsburgh. Nine years ago plaintiffs

sued the state; two years later the state entered into a con-

sent decree and then proceeded to renege on its provisions.

To this day, every branch of government of the Common-

wealth of Pennsylvania—the executive, legislative, and

judicial—has fought tooth and nail every effort of plain-

tiff to make Pennsylvania respect the provisions of a fed-

eral statute.

It is certainly most unusual, and therefore a rarity,

for a state government to have taken such devious formal

actions to avoid the enforcement of a federal court order,

as it did in this case:

First, Pennsylvania’s legislature enacted a state

law deliberately designed to prohibit state officers

from respecting the federal court order.

Second, because the state then stood to lose

$700,000 in Clean Air Act funds for state highways

66a Opinion, Court of Appeals

in 1982, the legislators repealed the ill-fated legisla-

tion, and permitted the implementation of the inspec-

tion and maintenance program if necessary to avoid

the loss of federal funds. See DVCCCA v. Common-

wealth of Pennsylvania, 755 F.2d 38 (3d Cir. 1985).

Third, after receiving the federal funds for its-

highways because of compliance with the federal

court order, the Commonwealth, acting through cer-

tain state legislators—desiring the financial benefits

of federal largesse without intending to satisfy the

federal requirements for it—successfully brought an

action in its own court system, resulting in a judgment

of the Supreme Cou:t of Pennsylvania that called

the federal court order ‘“‘a nullity.” Scanlon v. Com-

monwealth of Pennsylvania, 502 Pa. 577, 590, 467

A.2d 1108, 1115 (1983).

Undaunted, the public interest law firms representing the

citizen group plaintiff returned to the federal court system

and fought the powerful Commonwealth apparatus every

inch of the way, through complicated detours and_treacher-

ous road blocks.

Although the district court described the case as pre-

senting “new and novel issues, the resolution of which

had little or no precedent,” the court explained that coun-

sel assisted the court in avoiding undue interference with

essential elements of state sovereignty. Because this

case involved a head on collision between two court sys-

tems, plaintiff was treading through a minefield. Never-

theless, plaintiff’s counsel performed exceptional services

in vindicating the dignity of the federal court system,

walking the tight, and sometimes imperceptible, line that

divides the competencies of two governmental sovereign-

Opinion, Court of Appeals 67a

ties, insuring full compliance with federal legislation de-

signeqd for the safety and protection of the citizens, and

vigorously battling a state governmental system that sought

to defy a lawful order of this court system by resorting to

discredited concepts of nullification, first by its legislature

and next by its supreme court. To the majority, these cir-

cumstances are perfectly congruent with the bottom line

expressed in Blum to satisfy the enhancement of the lode-

star ordered by the district court.

The majority rejects the Commonwealth’s arguments

that the district court here applied standards prohibited

by Blum. The court increased the lodestars in phases IV,

V, and VII of the litigation based upon superior work,

outstanding result, and contingency." App. at 49. Blum

did not foreclose all increases in attorneys’ fees based on

quality of work performed; it recognized that in a “rare

case” a district court can justifiably increase a lodestar

for “superior work.”” The district court found that the

quality of plaintiff’s counsel’s work in phase V was “‘supe-

rior” and led to an “outstanding result.”” This finding is

not clearly erroneous. An increase in the lodestar based

on this factor is consistent with Blum.

The district court also found that the “contingent

nature of plaintiffs’ success’ in phases IV, V, and VII

supported an upward adjustment of the lodestar. This

'! Work on phase IV became necessary when the Common-

wealth attempted during the Spring of 1981 to delay implementa-

tion leading to the first appeal to this court. Phase V involved

the litigation flowing from the General Assembly’s law preventing

the expenditure of funds for the 1/M program. Finally, phase

VII involved litigation over the Commonwealth’s proposal that

several programs be exempted from the contempt sanction im-

posed by the district court.

68a Opinion, Court of Appeals

finding also is not clearly erroneous. Unlike Blum, plain-

tiff specifically identified the risks inherent in this litiga-

tion in its brief to the district court and, although the Su-

preme Court considers it an open question whether con-

tingency of success can properly justify a lodestar increase,

we have resolved the question in this court. See Hall v.

Borough of Roselle, 747 F.2d 838 (3d Cir. 1984); Lindy

IT, 540 F.2d at 117.

The Commonwealth also contends that the district

court did not make specific findings of fact in awarding

the lodestar increase as required by Ursic v. Bethlehem

Mines, 719 F.2d 670, 675 (3d Cir. 1983) and Lindy II,

540 F.2d at 117. The majority rejects this argument.

The court expressly found: (1) the plaintiff's success was

contingent because of the unusual nature of the litigation

and ‘“‘defendants’ numerous attempts to overturn or cir-

cumvent this court’s orders,” app. at 49; and (2) the qual-

ity of plaintiff's counsel’s work was superior in phase

V due to the complex issues of federalism, app. at 49.

Finally, the Commonwealth contends that the district

court abused its discretion in awarding such large multi-

pliers. The majority rejects that argument as well. Lindy

II is dispositive:

The appellate court may not upset a trial court’s

exercise of discretion on the basis of a visceral dis-

agreement with the lower court’s decision. . . . “Tf

the district court has applied the correct criteria to

the facts of the case, then, it is fair to say that we

will defer to its exercise of discretion.”

Lindy II, 540 F.2d at 116 (quoting Katz v. Carte Blanche

Corp., 496 F.2d 747, 756 (3d Cir. 1973) (in banc)),

Opinion, Court of Appeals 69a

cert. denied, 419 U.S. 885 (1974). Because in awarding

the multipliers the district court applied the correct criteria,

and because the award was neither “ ‘so unreasonable

[n]or so arbitrary as to amount to a prejudicial abuse of

. . . discretion,’ ”’ Lindy II, 540 F.2d at 116 (quoting

Napolitano v. Compania Sud Americana de Vapores, 421

F.2d 382, 384 (2d Cir. 1970)), defendants’ contention

must fail.” |

2 Judge Becker dissents from the majority’s affirmance of

the district court’s award of a contingency multiplier of two for

phases IV and VII of the litigation. The work in phase IV was

in opposition to the motion of the Commonwealth to amend a

consent decree pursuant to Fed. R. Civ. P. 60(b), and the work

in phase VII was its functional equivalent. See supra note 11.

Judge Becker concludes that in awarding the contingency multi-

plier the district court failed to consider that the Commonwealth

had to meet an extremely heavy burden to gain modification of

the consent decree. See, e.g., DVCCCA v. Commonwealth of Penn-

sylvania, 674 F.2d 970, 982 (3d Cir. 1982). In light of this bur-

den, Judge Becker believes that the risk of lack of success in these

phases was simply insufficient to justify the very substantial

multiplier awarded by the district court.

Judge Becker also dissents from the majority’s affirmance of

the district court’s award of a total multiplier of four for phase

V of the litigation. He believes that this aspect of the fee award

must be vacated and remanded to the district court for recon-

sideration in light of Blum vy. Stenson, 104 S.Ct. 1541 (1984).

Judge Becker acknowledges that Blum did not address the ques-

tion of how high a multiplier the district court may award and

that there are few cases that address this difficult issue. Never-

theless, he believes that because the Blum court carefully identi-

fied the cases in which fees may be awarded and characterized a

50 percent multiplier as ‘‘substantial,’’ id. at 1548, Blum suggests

that in only the rarest case would a total multiplier in the range

of four be permitted. Judge Becker concludes that, even assum-

ing an award of quality and contingency multipliers is appropri-

70a Opinion, Court of Appeals

The judgment of the district court will be affirmed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

ate as to phase V, the multipliers must be recalculated because

the case was not so very rare as to justify in light of Blum the

award of this extraordinary multiplier. Cf. New York State Ass'n

for Retarded Children v. Carey, 711 F.2d 1136, 1153-54 (2d Cir.

1983) (court considered the case to be ‘‘extraordinarily difficult,”’

involving ‘‘novel questions of constitutional interpretation,’’ and

‘‘equally complex issues concerning the litigation of institutional

reform,’’ yet the court reduced a multiplier from the 25 percent

level awarded by the district court to 10 percent); Baughman v.

Wilson Freight Forwarding Co., 583 F.2d 1208, 1217 (3d Cir.

1978) (district court abused its discretion in awarding a multi-

plier of two to account for contingency ).

Memorandum & Order, 7la

Dist. Ct., Nov. 9, 1982

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CIVIL ACTIONS

No. 76-2068

DELAWARE VALLEY CITIZENS COUNCIL FOR

CLEAN AIR, et al.

Vv.

COMMONWEALTH OF PENNSYLVANIA, et al.

No. 77-619

UNITED STATES OF AMERICA

V.

COMMONWEALTH OF PENNSYLVANIA, et al.

MEMORANDUM AND ORDER

BECHTLE, J., November 9, 1982

On August 29, 1978, the Commonwealth of Penn-

sylvania (“Commonwealth”) and two of its administra-

tive agencies voluntarily entered into a consent decree with

the United States of America (‘United States’) and the

Delaware Valley Citizens’ Council for Clean Air

(““DVCCCA”). In that consent decree, the Common-

72a Memorandum & Order,

Dist. Ct., Nov. 9, 1982

wealth defendants agreed to establish an automobile emis-

sions inspection and maintenance program (“I/M _ pro-

gram’”’) for the Philadelphia and Pittsburgh areas. On

January 22, 1982, this Court found the Commonwealth in

civil contempt for failing to implement the agreed upon

I/M program. As part of its Order the Court imposed the

following sanction:

The Secretary of the United States (‘‘Secre-

tary”), or his designee, shall not approve any projects

or award any grants under Title 23 of the United

States Code in the Philadelphia or Pittsburgh Areas,

.. ., Other than for safety, mass transit, or transporta-

tion improvement projects related to air quality im-

provement or maintenance, see 42 U.S.C. §7506(a) ;

Delaware Valley Citizens’ Council for Clean Air v. Com-

monwealth of Pennsylvania, 533 F. Supp. 869, 884-885

(E.D. Pa. 1982). That Order was affirmed on appeal.

678 F.2d 470 (3d Cir. 1982), cert. denied, 51 U.S.L.W.

3339 (U.S. November 1, 1982) (No. 82-274).

Presently before the Court is a request by the Com-

monwealth for approval of federal funding for seven proj-

ects in the Philadelphia and Pittsburgh areas. The seven

projects for which exemptions are sought are as follows:

Memorandum & Order,

Dist. Ct., Nov. 9, 1982

Ch PEPE Ppepese

aoe 2222 lstse2e

~zAvo SSBaa Sasa

Sk¥ES NNNNAVUVBZAN

mq oO

a

<f NANANAN NN

SOY www ww 00 00

a0) — ee a te

SO ~~ tty ro o>)

_ “SK NNN NN

< i, ay Se ae i

DADAD oo)

i NN NAN NN

© o © ON OO co 00

> Fb _ —

=} ~ ~™Q ON Oo ©

ESO NNKAN aa

Qo. ~m™~ DD O So) OC)

ie ot oS

ees Seer = to

oF Senor wn N

= coon rm

$2 RSR85 5

r °s3s

“4

i 8388s wn

QI 00 ~ 3S

3 2c oom wy)

=a+o oN Kh >

Sez SENLS +8

Sgt NDBANM -

"oe. oe

“

=

=2-S¢ a

¢ F— ee oo

6 O7te- of

— — ,M— ~"

EZ 000°5 S

Gr QOL ~ oe)

ve iA- NA

S32 AAS LT 3

nS sx Le A

LSzaAMO x o

Ba eg OO ee == 72)

$90,499,568

$101,511,984

73a

5

74a Memorandum & Order,

Dist. Ct., Nov. 9, 1982

On November 4, 1982, a hearing was held at which time

the Court entered-an Order staying any future awards un-

til further Order of Court. For the reasons which follow,

the Court will approve Federal Project Nos. PMS-GOOS

(124) and PMS-OOS (128), and deny approval for Fed-

eral Project Nos. BRM-HO144¢1), I-376-1 (38) (0), 1-95-1

(91) (14), BRF-280(6), and SRS-2000 (384).

I.

On January 22, 1982, the Court entered its Order

enjoining the award of federal highway funds to the Com-

monwealth as a sanction for the Commonwealth’s failure

to immediately implement an I/M program for the Phila-

delphia and Pittsburgh areas. Now the Commonwealth

seeks to receive certain monies under the Court’s express

exceptions for safety and air quality improvement. Proper

evaluations of the Commonwealth’s presen

This text is long and has been trimmed here. Open the source document for the complete record.