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July 12, 1974

John A. VOLPE, Individually and as Secretary of Transportation of the United States, et al., Defendants, and, The Honorable Milton J. Shapp, Governor of the Commonwealth of Pennsylvania, and The Honorable Harold Swenson, Mayor of the City of Harrisburg, Additional Defendants

Nealon, District Judge.

The opinion of the court was delivered by: NEALON

NEALON, District Judge.

 In this, the third and final stage of an action instituted to restrain the construction of a highway network partially through a city park, plaintiffs seek reimbursement of counsel fees and costs from the defendants. A complete statement of the facts is contained in Harrisburg Coalition Against Ruining the Environment v. Volpe, 330 F. Supp. 918, (M.D.Pa.1971). A capsulized version follows.

 Located in the south-central portion of the Commonwealth of Pennsylvania, the City of Harrisburg has a population of about 68,000 persons and serves as the state capitol. Within its boundaries are eight parks, including Wildwood Park, the subject matter of this litigation. Never idyllic, Wildwood Park enjoyed the reputation of being a major recreational asset for Harrisburg-area residents around the turn of the century. Since then, it has steadily degenerated in appearance, maintenance and use. Simultaneously, transportation problems in and around the city began to mount. To relieve severe traffic congestion, plans were developed in the early 1960s to construct portions of two highways through Wildwood Park, one known as the River Relief Route, and the other, Interstate Route 81. Both projects were jointly funded by the federal and state governments. After construction had begun, plaintiffs moved on April 7, 1971, to enjoin the federal, state and city governments from proceeding with further construction.

 On May 11, 1971, after hearing five days of testimony and after considering the arguments of all parties, this Court:

 (1) enjoined the further disbursement of federal funds for construction of the two highways;

 (2) remanded the matter to Secretary of Transportation Volpe for further consideration of the requirements of Sec. 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. § 1653(f); Secs. 128 and 138 of the Federal-Aid Highway Act of 1968, 23 U.S.C. §§ 128 and 138; and Sec. 102(2)(C) of the National Environmental Act of 1969, 42 U.S.C. § 4332(2)(C); and applicable rules and regulations;

 (3) dismissed the complaint with respect to Jacob Kassab, individually and as Secretary of the Department of Transportation of Pennsylvania; with respect to Harold Swenson, individually and as Mayor of the City of Harrisburg; and with respect to the City of Harrisburg; and

 (4) determined that there was no evidentiary basis to support plaintiffs' claims of unconstitutional racial discrimination.

 On January 23, 1973, the federal defendants, after having filed a final environmental statement with respect to the two highways and a memorandum detailing their compliance with this Court's May 11, 1971, order of remand, moved to dissolve the injunction and to dismiss the complaint. In response, on February 26, 1973, plaintiffs moved to revise the judgment entered May 11, 1971, and to amend the complaint. On May 8, 1973, the plaintiffs were allowed to amend their complaint so as to join the Hon. Milton J. Shapp, Governor of Pennsylvania, and the Hon. Harold Swenson, Mayor of Harrisburg, as additional defendants, and to assert claims under the Clean Air Act of 1970, 42 U.S.C. § 1857; the Federal Highway Act of 1970, 23 U.S.C. § 109(h), and the Pennsylvania Constitution. In addition, the Court ordered the action to be reinstated with respect to Jacob Kassab, individually and in his official capacity. A further evidentiary hearing, lasting seven days, was conducted before this Court in late May and early June, 1973, before the parties, at the strong urging of the Court, entered into an amicable settlement whereby they agreed, subject to class approval, to a realignment of the two highways in such a manner as to reduce the impact on Wildwood Park. On October 19, 1973, this Court approved the consent judgment and retained jurisdiction to decide the issues of counsel fees and costs.

 Notwithstanding the traditional American rule disfavoring the allowance of counsel fees, as "part of the original authority of the chancellor to do equity in a particular situation", Sprague v. Ticonic National Bank, 307 U.S. 161, 166, 59 S. Ct. 777, 780, 83 L. Ed. 1184 (1939), federal courts may shift the expenses of litigation, including attorneys' fees, "when the interests of justice so require". Hall v. Cole, 412 U.S. 1, 5, 93 S. Ct. 1943, 1946, 36 L. Ed. 2d 702 (1973). And "[whenever] overriding considerations indicate the need for such a recovery", Mills v. Electric Auto-Lite Co., 396 U.S. 375, 391-392, 90 S. Ct. 616, 625, 24 L. Ed. 2d 593 (1972), the federal courts have not hesitated, even without statutory or contractual authority, to grant an award of counsel fees. See, e.g., Hall v. Cole, supra; Mills v. Electric Auto-Lite Co., supra; Yablonski v. United Mine Workers of America, 151 U.S.App.D.C. 253, 466 F.2d 424 (1972); Kahan v. Rosenstiel, 424 F.2d 161 (3d Cir. 1970); Gartner v. Soloner, 384 F.2d 348 (3d Cir. 1967). Congress, of course, retains the right to circumscribe the equitable powers of a federal court in this regard. Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 87 S. Ct. 1404, 18 L. Ed. 2d 475 (1967).

 The Supreme Court has affirmatively recognized two instances where overriding considerations justify the propriety of an equitable judgment for counsel fees. To reprimand a party who has acted "in bad faith, vexatiously, wantonly, or for oppressive reasons", 6 J. Moore, Federal Practice para. 54.77 [2], p. 1709 (2d ed. 1972), an award of counsel fees is utilized as a punitive measure. See, e.g., Hall v. Cole, supra, 412 U.S. at 5, 93 S. Ct. 1943; Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, n. 4, 88 S. Ct. 964, 19 L. Ed. 2d 1263 (1968); Kahan v. Rosenstiel, supra, 424 F.2d at 167. And when a plaintiff's efforts result in the creation of a common fund or a common benefit, not necessarily monetary, an award of counsel fees operates to distribute the burdens of a successful litigation among those who will reap its rewards. Hall v. Cole, supra; Mills v. Electric Auto-Lite Co., supra; Sprague v. Ticonic National Bank, supra; Kahan v. Rosenstiel, supra, at 166-167.

 The plaintiffs do not seriously urge that either of those considerations are present in the instant case, nor do I believe that they are. I have followed the course of this litigation closely since its inception, and I cannot say that defendants are in any degree culpable of bad faith, either in their conduct of this litigation or in the manner in which they attempted to perform their statutory responsibilities.

 I also agree with the Court in La Raza Unida v. Volpe, 57 F.R.D. 94 (N.D.Cal.1972), appeal docketed, N. 73-1145, 9th Cir., Jan. 29, 1973, one of the cases upon which plaintiffs principally rely, that the common fund doctrine will not mold itself around the present case. See also Bradley v. School Board of City of Richmond, Va., 472 F.2d 318 (4th Cir. 1972), rev'd on other grounds, 416 U.S. 696, 94 S. Ct. 2006, 40 L. Ed. 2d 476 (1974). As a practical matter, fee shifting under the common fund or benefit rationale does not saddle the unsuccessful party with the expenses of litigation; rather, it taxes "the class that has benefited from them and that would have had to pay them had it brought the suit." Mills v. Electric Auto-Lite Co., supra, 396 U.S. at 397, 90 S. Ct. at 628. Such is not the case here, for the class of local citizens directly concerned in the outcome of this action is only a minute fraction of the class sought to be indirectly assessed. The plaintiffs include a community group, the Harrisburg Coalition Against Ruining the Environment, several students and faculty members of the Harrisburg Area Community College, and certain black residents of the uptown area of Harrisburg. What benefits have or will accrue to others not within the reach of Wildwood Park are at best a matter of surmise. Yet an award of fees assessed against either the federal or state governments would in reality be paid by all taxpayers, no matter how remote their interest in Wildwood Park. Cf. ...

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