Opposition Brief — Philadelphia Electric Co. v. Black Grievance Committee

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No. 86-905 DEC 15 1988

JOSEPH F. SPANIOL, JR,

CLERK

IN THE SUPREME COURT OF THE

UNITED STATES

October Term, 1986

PHILADELPHIA ELECTRIC COMPANY,

Petitioner

Ve

BLACK GRIEVANCE COMMITTEE, et al.,

Respondents

CPPOSITION TO PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

HERBERT 8B. NEWBERG, ESQ.

ALICE W. BALLARD, ESQ.

JEAN R. STERNLIGHT, ESO.

PHILIP S. FUOCO, ESQ.

Attorneys for Respondents

Lippincott Bldg.

Suite 200

227 South 6th Street

Philadelphia, PA 19107

Tel: (215) 922-4740

QUESTIONS PRESENTED

1. Where a district court has, in the

exercise of its discretion, determined that

plaintiffs presented adequate evidence of

complexity, contingency, novelty and risk to

support a 50% contingency enhancer, and where

the Court of Appeals has affirmed the district

court's exercise of its discretion, should

the Supreme Court take certiorari to assess

whet.ier the district court abused its

discretion?

2. Should the Supreme Court grant a

writ of certiorari in each and every case which

raises the question of whether a fee award may

ever be enhanced to reflect the contingent

aspect of the case pending this Court's

resolution of related issues in Commonwealth

of Pennsylvania v. Delaware Valley Citizens

Counsel for Clean Air?

(i)

3. Where, in the exercise of its dis-

cretion, the district court found it appropriate

to apply a Hensley reducer of 25% and where the

Court of Appeals affirmed the district court

in such exercise of its discretion, should

the Supreme Court grant a writ of certiorari

to assess whether the Hensley reducer was

correctly determined?

TABLE OF CONTENTS

Page

Ousietions PEG@GOGREGG 1s cenedeeddneenaos (i)

Table of COGGREE: 100000 %ee ed okeas ase See

Table of Authorities eeeeeee#ssrfee#eseesee#2eteeee# (iv)

Statement Of the Cas@ .csccccccccscsces 1

Reasons for Denying the Writ:

I. THE THIRD CIRCUIT'S AFFIRMANCE

OF THE SUFFICIENCY OF THE RECORD

TO SUPPORT THE DISTRICT COURT'S

DISCRETIONARY DETERMINATION OF

THE CONTINGENCY ENHANCER DID NOT

CONFLICT WITH THIS COURT'S DECISION

IN BLUM v. STENSON”) ....ccccccccee +

II. THE COURT SHOULD NOT GRANT

CERTIORARI IN THIS CASE MERELY

BECAUSE THIS CASE, LIKE MANY CASES

AROUND THE COUNTRY, CONTAINS A

RULING REGARDING A "CONTINGENCY"

FACTOR .cccccccese er 6

III. THE THIRD CIRCUIT'S AFFIRMANCE

OF THE DISTRICT COURT'S EXERCISE

OF ITS DISCRETION TO APPLY A

HENSLEY REDUCER OF 25% DOES NOT

CONFLICT WITH THE SUPREME COURT'S

DECISION IN HENSLEY v. ECKERHART .. 9

COonGAMSiOR: axcccaacuaeeeen ere e ye oT ree ll

Certificate of Service ..... as 6s ee eee 12

(iii)

TABLE OF AUTHORITIES

CASES: Page

Biack Grievance Committee v. PECo,

615 F. Supp. 1069 (E.D. Pa. 1985) ....... 2

Blum v. Stenson, 465 U.S. 886 (1984) .... 4

Cf. City of Riverside v. Rivera, 106

So CSc SOUS CAPES) cecceseccvcccseseccses 10

Commonwealth of Pennsylvania v. Delaware

Valley Citizens Counsel for Clean Air,

October Term, 1985, No. 85-5 .... (i), 6, 7

Hensley v. Eckerhart, 802 F.2d at 654 .. passim

Illinois Welfare Rights Organization

v. Miller, 723 F.2d 564 (7th Cir.

STATEMENT OF THE CASE

This fee litigation arises out of a race

discrimination claim filed more than ten years

ago, in 1975, by black employees and applicants

for employment at the Philadelphia Electric

Company ("PECo"). Following substantial dis-

covery, regarding plaintiffs' company-wide

claims, and following extensive preparation

for trial, a settlement providing for both

monetary and injunctive relief was finally

reached on the verge of trial in July, 1983.

Notice of the settlement was given to the

class and the court ultimately approved the

settlement in the form of a consent decree

Signed January 3, 1985.

The Black Grievance Committee ("BGC")

filed a fee petition with the district court.

Subsequently, on August 13, 1985 the district

court ordered PECo to pay plaintiffs' counsel

fees and costs totalling $475,938.18. Black

Grievance Committee v. PECo, 615 F. Supp. 1069

(E.D. Pa. 1985).

Upon receipt of the district court's

ruling, defendants chose to appeal on a variety

of issues. While agreeing to pay to plaintiffs'

counsel a little over $100,000 in fees and

costs, defendant refused to pay the remainder

of the fees, pending appeal. Faced with

defendant's appeal, plaintiffs cross-appealed

various aspects of the district court's

decision to the Court of Appeals.

The Court of Appeals on September 22, 1986,

affirmed the district court on certain grounds,

found for plaintiffs on certain grounds, found

for defendant on certain grounds, and remanded

the matter to the district court for further

rulings. (802 F.2d 648 (3rd Cir. 1986)).

Before the district court had an opportunity

to rule on remand, defendant filed the instant

petition for writ of certiorari, challenging

the district court's exercise of its discretion

in calculating the contingency multiplier and

the Hensley reducer.

Plaintiffs oppose the grant of a writ of

certiorari in this matter and urge that the

writ be denied expeditiously. As set forth

below, defendant has failed to demonstrate

that any aspect of the Appellant Court's

decision warrants the grant of a writ of

certiorari. See Sup. Ct. R. 17.

Reasons for Denying the Writ

I. THE THIRD CIRCUIT'S AFFIRMANCE OF

THE SUFFICIENCY OF THE RECORD TO

SUPPORT THE DISTRICT COURT'S Dis-

CRETIONARY DETERMINATION OF THE

CONTINGENCY ENHANCER DID NOT

WiT TI T

DECISION IN BLUM v. STENSON

Just as it argued to the district court

and to the Court of Appeals, PECo once again

asserts that plaintiffs' counsel failed to

present erideaee to support a contingency

enhancer. Characterizing plaintiffs' counsels'

extensive affidavits as mere rhetoric,

defendant claims the record was therefore

"operatively" equivalent to the totally blank

record in Blum v. Stenson, 465 U.S. 886 (1984).

(See Petition at 6).

Defendant's argument fails. As the Court

of Appeals found, plaintiffs, in counsels'

affidavits, specifically identified the legal

and factual complexities of the case. (A36-

A38). The arguments set forth by defendant

focus on the sufficiency of the record in

support of the district court's assessment

of the amount of the contingency multiplier.

This is a purely discretionary decision

addressing the record in this particular case.

This exercise of discretion was reviewed and

affirmed on appeal.

The district court's discretionary

determination that plaintiffs were entitled

to a specific contingency multiplier, well

within the range of similar awards in count-

less other fee precedents, certainly does not

establish a conflict with this Court's

decision in Blum or present an issue of

national importance, such that this Court

should grant a writ of certiorari pursuant to

Rule 17.1(c).

II. THE COURT SHOULD NOT GRANT

CERTIORARI IN THIS CASE MERELY

BECAUSE THIS CASE, LIKE MANY CASES

AROUND THE COUNTRY, CONTAINS A

RULING REGARDING A "CONTINGENCY"

FACTOR

Defendant argues that because this Court

has heard re-aroument, in Pennsylvania v.

Delaware Valley Citizens Counsel for Clean Air,

October Term, 1985, No. 85-5, on "the question

whether attorney's fees chargeable to a losing

defendant under the Clean Water Act and the

comparable statute may be enhanced based on

the risk of loss," 52 USLW 5017, 5023 (1986),

that this Court shinai necessarily grant

certiorari in the instant case as well, in

order "to permit a correct application of the

law of contingency enhancers ..." (Petition

at page 7).

Defendant's argument proves too much.

Were this Court to grant certiorari in each

case pending in the Third Circuit or around

the country which raised an issue already being

considered by the Court, the Court's docket

would quickly become overwhelmed with such

cases. Moreover, decisions in cases throughout

the country would be substantially delayed

pending the outcome in various Supreme Court

matters.

Nor is it necessary for the Court to

grant certiorari in such cases in order to

promote uniformity or consistency. Any

decision the Supreme Court reaches in Delaware

Valley will, of course, become the law of the

land with respect to contingency. The hypo-

thetical new ruling regarding contingency will

apply to any case filed after the issuance of

such ruling and, if the court chooses to make

the ruling retroactive, it will also affect

pending cases filed prior to the decision's

date. However, just as the issuance of a new

ruling will not require a court to re-examine

cases decided prior to the decision's issuance,

so too there is no need to take certiorari on

all pending cases which raise an issue the

Supreme Court may possibly address. Uniformity

and consistency are best achieved not by taking

certiorari on all such pending cases but,

rather, by ensuring that all new decisions

are properly applied once they have been

issued.

III. THE THIRD CIRCUIT'S AFFIRMANCE

OF THE DISTRICT COURT'S EXERCISE

DIS TION TO APPLY A

Defendant's second attempt to reverse the

district court's Hensley computation on the

grounds that it was not based on an "objective"

calculation of plaintiffs' degree of success

also fails to warrant grant of a writ of

certiorari. As the Court of Appeals found,

802 F.2d at 654 (A35-A36), the district

court's computation of the Hensley factor

fell well within the discretionary zone

defined by Hensley. The district court's

calculation quite legitimately took into

account the overall value to the class of

such affirmative action measures as hiring

goals, creation of an affirmative action

committee, provision of training classes,

provision of a career counseling program,

and development of a sensitivity training

a

e

’ *

aS a

program for supervisors. (A35-A36; A18-A21).

Cf. City of Riverside v. Rivera, 106 S. Ct.

2686 (1986) (vindication of important civil

and constitutional rights may be included in

assessment of plaintiffs' success). Parti-

cularly given the fact that plaintiffs

obtained their success in the instant case

through settlement, rather than through

litigation, it cannot be said that the

district court abused its discretion in cal-

culating the Hensley success factor. Illinois

Welfare Rights Organization v. Miller, 723 F.2d

564 (7th Cir. 1983). More important, certainly

the district court made no misapplication of

Hensley which would warrant a grant of

certiorari in this matter.

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CONCLUSION

Defendant has failed to set forth any

consideration warranting grant of a writ of

certiorari. The writ should be denied.

Defendant has established neither that the

Third Circuit's calculation of the contingency

or Hensley factors presents an important

question of federal law which conflicts with

this Court's decisions, nor that this Court

must grant certiorari to resolve any conflicts

among the Circuits. See Sup. Ct. R. 17.1.

Accordingly, plaintiffs respectfully request

that this Court deny the writ expeditiously

and permit plaintiffs to collect the fees to

which they are entitled after more than ten

years of litigation.

HERBERT B. NEWBERG, ESQ.

ALICE W. BALLARD, ESQ.

JEAN R. STERNLIGHT, ESQ.

PHILIP S. FUOCO, ESQ.

Lippincott Bldg. Suite 200

227 South 6th Street

Philadelphia, PA 19107

- ll -

? CERTIFICATE OF SERVICE

I hereby certify that three copies of

this Opposition to Petition for a Writ of

Certiorari were served by Hand Delivery upon:

Robert W. Maris, Esquire

2600 The Fidelity Building

Philadelphia, PA 19109-1094

Attorney for Petitioner

HERBERT B. NEWBERG, ESQUIRE

ALICE W. BALLARD, ESQUIRE

JEAN R. STERNLIGHT, ESQUIRE

PHILIP S. FUOCO, ESQUIRE

Attorneys for Respondents

Lippincott Building

Suite 200

227 South 6th Street

Philadelphia, PA 19106

Tel: (215) 922-4740

Dated: December 15, 1986

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