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PENNSYLVANIA v. O'NEILL

April 28, 1977

COMMONWEALTH OF PENNSYLVANIA, et al., Plaintiffs,
v.
JOSEPH F. O'NEILL, et al., Defendants



The opinion of the court was delivered by: FULLAM

 FULLAM, J.

 Plaintiffs have petitioned for an award of counsel fees and expenses in this long and complex litigation challenging the hiring and promotional practices of the Police Department of the city of Philadelphia on racial grounds. The action was filed in 1970. Plaintiffs sought preliminary injunctive relief against the use of the existing entrance examinations, background investigation processes, and promotional examinations. After extensive preliminary proceedings, I concluded that significant disparate impact upon racial minorities had been shown in each category; since no attempt had been made to justify the discriminatory impact through validation of the testing procedures, I concluded that they could not form a basis for constitutionally permissible personnel decisions which would perpetuate the discriminatory consequences. A preliminary injunction was therefore entered, the effect of which was to require the City, if it wished to hire additional police officers, to eliminate the disparate impact of the tests by hiring at least one minority applicant for every two Caucasian applicants, that being roughly the proportionate distribution in the pool of applicants. Commonwealth of Pa. v. O'Neill, 348 F. Supp. 1084 (E.D. Pa. 1972). A similar injunction was entered with respect to promotions. On appeal, after en banc consideration, the injunctive order was affirmed by an evenly divided court, insofar as it related to hiring. Commonwealth of Pa. v. O'Neill, 473 F.2d 1029 (3d Cir. 1973).

 In April of 1973, the parties agreed to the entry of a Consent Decree in this Court. Under the terms of the Decree, the defendants were to retain a reputable testing organization to prepare, and validate as job-related, an entirely new entrance examination and to assist in the preparation of criteria and procedures for evaluating the backgrounds of applicants so that such screening would be constitutionally and legally valid. Minority applicants who had previously, during an agreed-upon period, been rejected were to be notified of their right to be retested or rescreened; if found eligible under the new procedures, they would be given first priority in hiring, and would be awarded back pay to the date when they should have been hired initially. During the interim period until the new background investigation procedures were adopted, the rescreening would consist of review by a special panel, including one outside neutral expert.

 I. FEES

 The fee applications now before the Court cover the period from the filing of the lawsuit until March 26, 1976, and embrace services rendered in the litigation leading up to the entry and subsequent implementation of the April 1973 Consent Decree. (Litigation concerning the racial impact and validity of the new entrance examinations, the new promotional examinations, and the new background investigation procedures has just been concluded; briefs have not yet been filed.)

 The applications now before the Court represent a composite of various petitions which have been filed from time to time seeking interim awards of counsel fees and costs. It is appropriate at the outset to note the circumstances which made it exceedingly difficult to deal appropriately with these applications as they were filed.

 This action was originally filed under the Civil Rights Act, 42 U.S.C. § 1981. Title VII was made applicable to municipalities in 1972. Thereafter, all concerned treated the issues in light of the Title VII standards and the EEOC guidelines, but the Complaint was not formally amended to allege Title VII violations (and compliance with administrative right to sue requirements) until 1976. Until the decision of the Supreme Court in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 44 L. Ed. 2d 141, 95 S. Ct. 1612 (1975), all concerned were proceeding on the assumption that counsel fees could be awarded under § 1981.

 But in view of the Alyeska decision, the counsel fees issues became unexpectedly complicated. If the Complaint were deemed amended retroactively (as it eventually was), counsel fees could presumably be awarded for the period from 1972 on, under Title VII. Irrespective of Title VII, counsel fees could presumably be awarded, to some extent, under one or more of the following possible theories: as sanctions under the discovery rules, to the extent that the services were rendered in compelling discovery; as penalties in connection with various contempt proceedings which have dotted the history of this litigation; and/or to the extent that the defendants' conduct of this litigation might properly be characterized as conducted in bad faith or with conscious racial animus. Fortunately, while the Court was wrestling with these problems and attempting to determine whether allocation of the fee claims on some such basis would be possible on the existing record, Congress, in October of 1976, enacted the Civil Rights Attorneys' Fees Awards Act, which adds to 42 U.S.C. § 1988 the following language:

 
". . . In any action or proceeding to enforce a provision of sections 1981 to 1983, 1985, and 1986 of this title, . .. the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs."

 42 U.S.C.A. § 1988 (Pamphlet No. 4, Part 3, 1976), amending 42 U.S.C.A. § 1988 (1970).

 The legislative history leaves no doubt as to the applicability of the first provision to pending cases, *fn1" and I therefore conclude that the Court now undoubtedly has discretionary authority to award counsel fees in this case. At least to the extent of the Consent Decree, plaintiffs are clearly the prevailing party; the issue therefore is whether, and to what extent, attorney's fees should properly be awarded in this case. While consideration of the nature of the particular services, and of the relative good faith or recalcitrance of the parties, still bear upon the exercise of discretion, precise categorization is no longer necessary. Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitation Corp., 540 F.2d 102 (3d Cir. 1976) (Lindy II); id., 487 F.2d 161 (3d Cir. 1973) (Lindy I).

 Plaintiffs received legal assistance from three separate sources: Robert J. Reinstein, acting to some degree in his capacity as consultant to the Office of the General Counsel of the NAACP; various members of the Philadelphia law firm of Drinker Biddle & Reath (Drinker), but primarily Henry W. Sawyer, III, Alan Klein and Amy Davis; and Robert P. Vogel, Assistant Attorney General with the Community Advocate Unit of the Pennsylvania Department of Justice. As will be discussed later in more detail, these attorneys divided and distributed the workload among themselves so as to avoid duplication and expedite the disposition of the case.

 The documentation of the hours expended by these attorneys in the prosecution of this case has been exceptionally thorough, detailed and accurate. Fortunately, there has been no need to "reconstruct" the number of hours or the manner in which they were spent, for throughout the course of this litigation each attorney has kept contemporaneous time records specifying actual hours expended and the area of the case to which the time was devoted. *fn2" It is for this and other reasons that no evidentiary hearing was conducted on the propriety of awarding fees to plaintiff's counsel.

 Unlike Lindy I, which held that an evidentiary hearing is required "where the facts to be weighed in light of the judge's expertise are disputed," 487 F.2d at 169, the special tensions inherent in awarding fees under the "equitable fund" theory are absent, *fn3" id.; the record before me is thoroughly documented and supported by time records and affidavits, cf. 540 F.2d at 120; each side has briefed and re-briefed the issues; and defendants do not dispute either the number of hours claimed to have been worked, or the requested hourly rates. *fn4" It is pertinent, too, that at no time during the lengthy period over which the fees petitions were pending did defendants' counsel ever seek a hearing, even when plaintiffs' counsel requested, by letter to the Court dated June 16, 1973, that the fees decision be made on the present record absent a request for a hearing by defendants or a determination by the Court that one was necessary. *fn5" The award of fees will, therefore, be made on the basis of the present record.

 Robert J. Reinstein

 By an oral Order of this Court in 1973, Mr. Reinstein was excused from filing a formal petition for counsel fees. Although a petition had been prepared on his behalf, he was in Europe at the time the petition was to be filed with the Court, and was unable to sign it. *fn6" He had, however, signed and filed an affidavit in support of his request for fees before he left the country, and I accepted the affidavit in place of a formal petition. This affidavit speaks for the first period of time for which fees are sought, from December 4, 1970, through May 22, 1973. Mr. Reinstein also seeks fees for work he performed between May 23, 1973, and March 26, 1976; that request is formally documented in petitions filed jointly with Drinker Biddle & Reath.

 It was through Mr. Reinstein's diligence that this suit was brought to fruition. *fn7" He was responsible primarily for developing plaintiffs' and refuting defendants' expert evidence presented in this case; *fn8" he also assisted Drinker in their representation of plaintiffs on some difficult legal issues, and drafted many of the numerous documents supportive of their position. *fn9"

 Mr. Reinstein has billed his time at an hourly rate of $40. Considering the highly technical area of the case for which he was responsible, his position as a full professor of law at Temple University, and the fact that the hourly fee he requests is less than the fee suggested by the Philadelphia Bar Association's minimum fee schedule, $40 is a fair and reasonable hourly rate.

 Mr. Reinstein's affidavit and subsequent supplemental memoranda filed jointly with Drinker avers that he has devoted a total of 1143.75 hours to the preparation, litigation and partial settlement of this case. Defendants' Answer argues that Mr. Reinstein's work was not actually necessary to the proper conduct of the case, and that it was duplicative of Drinker's work. These arguments are rejected. Mr. Reinstein asserts, and this Court agrees, that a careful division of labor was observed in all phases of the case.

 Further, there is no merit in the defendants' contention that Reinstein's award should be reduced to reflect his obstructionism to settlement of the case. This Court need only point to several of its earlier Memoranda and Orders to illustrate the falsity of any such assertion; indeed, it was the defendants who prolonged and complicated the earlier stages of this litigation. See, e.g., Commonwealth of Pa. v. O'Neill, 16 Fair Empl. Prac. Cas. (BNA) 783, C.A. No. 70-3500 (E.D. Pa., Aug. 2, 1974); id. (E.D. Pa., Sept. 30, 1972); id. (E.D. Pa., Sept. 22, 1972). In the same vein, defendants contend that no award can be made for work done subsequent to January 19, 1973, the date the defendants submitted their proposed Consent Decree to the Court; *fn10" they argue that the settlement eventually reached was essentially the same as that submitted in defendants' proposed decree. Short shrift can be made of this contention by comparing the two decrees. The defendants' proposed decree, for example, did not provide for any relief in the interim for members of the plaintiff class; did not provide for any representation on the review panel by persons not employed by the defendants, and did not provide for any revision of the background investigation criteria and procedures. Clearly the plaintiffs were justified in insisting that the Decree cover these matters. In fact, since the entry of the Consent Decree all three matters have been the subject of numerous conferences and Court Orders and the third has only recently been taken under advisement after the conclusion of lengthy hearings of an extremely technical nature.

 Having disposed of these few objections, I find that Mr. Reinstein has adequately detailed how the 1143.75 hours were spent, and that, with one minor adjustment, the total number of hours expended was justified in light of the complexity of the case. Mr. Reinstein spent 42 hours preparing and reviewing various materials in support of his petition for fees, see Appendix to Joint Supplemental Memo, for which no award of fees can be made, Lindy II, 540 F.2d at 111, and he will be credited, therefore, with having expended a total of 1101.75 compensable hours.

 In light of the foregoing data and conclusions, Mr. Reinstein would be entitled to the sum of $44,070 as attorney's fees for services rendered during the time period from December 4, 1970, through March 26, 1976. *fn11" This award must be reduced by the amount of $160, the sum for which Mr. Reinstein has been reimbursed by the City. See "Schedule of Attorneys' Fees and Unreimbursed Costs" in either the Joint Supplemental Memo, or the Memo of Updated Time Charges. Mr. Reinstein's total basic award, therefore, is in the sum of $43,910.

 Drinker Biddle & Reath

 The Philadelphia-based law firm of Drinker Biddle & Reath bore the major responsibility for representing the plaintiffs; in toto there were six attorneys, three research assistants and one paralegal from the firm who worked on the case. While that number of persons laboring on one case would in some cases be excessive, I am satisfied that in this case there was no unnecessary duplication. The law firm's petitions and its summaries of how the time was spent reveal that these ten persons did not all work on the case at the same time; rather, many worked only intermittently and then only in certain areas of the case. In short, I find that the services rendered by each attorney were necessary to the successful resolution of the case. I also find that the same is true for the work performed by the research assistants and the paralegal.

 The time sheets of the firm document a total expenditure of 3565.75 hours by those persons for whose time compensation is sought; not all those hours, of course, are compensable. As previously stated, the application for fees is contained in three separate petitions. The original Petition for Fees was filed in mid-1973, shortly after the entry of the Consent Decree. It requests fees for the first two-and-one-half years of the litigation, from December 4, 1970, to May 22, 1973. *fn12" The Memorandum supporting the Petition succinctly details the Herculean effort involved in preparing, litigating and settling this case, see pp. 1-2, and I agree with its conclusion that the "general scope and magnitude of this litigation was in all respects comparable to large antitrust litigation . . ." Id., p. 2.

 In October 1975, the plaintiffs' attorneys filed a Joint Supplemental Memorandum supporting their original Petition for Fees and requesting fees for additional services rendered during the period of time from May 23, 1973, to August 29, 1975. It documented the substantial amount of work done by plaintiffs' counsel subsequent to the entry of the Consent Decree, both in enforcing the provisions of the Decree and in representing plaintiff class members before the background appeals panel. *fn13"

 In October 1976, the plaintiffs' attorneys filed a third memorandum in support of their request for fees, entitled "Plaintiffs' Memorandum of Additional Authorities and Updated Time Charges and Expenses in Support of Their Petitions for Attorneys' Fees" (Memo of Updated Time Charges). This Memo, as its name suggests, updates the prior Petition for fees by appending an additional time period running from September 1, 1975, through March 26, 1976. It, too, contains time sheets, a schedule of the hours and rates, and a summary of the respective hours devoted by the attorneys to different areas of the case.

 Quite significantly, Drinker does not request compensation at its full regular hourly rates. Instead, it seeks fees in the amount of two-thirds of such regular hourly rates, and it represents to the Court that the total amount reached by using the reduced rates represents an award from which the law firm would neither obtain profit nor incur loss. Accepting the two-thirds rates for the purpose of computing the basic fee award, *fn15" I reserve comment on the significance of this tack until I reach the "multiplier analysis" required by Lindy II, infra. I might comment here, however, that the reduction in the hourly rates more than adequately protects defendants from paying for duplicative services and mitigates any other hazards attendant multiple counsel. See Oliver v. Kalamazoo Bd. of Education, 73 F.R.D. 30, 45 (W.D. Mich., 1976).

 Having laid the basic foundation upon which an award of fees can be justified, it seems expedient to group those few objections which were raised by the defendants and to deal with them en masse. *fn16" Two objections, though frequently and variously repeated, do not withstand scrutiny and merit only cursory attention. Defendants deny that all the work done was necessary to the proper conduct of the case, asserting for example that there was an excessive number of attorneys working on the case. In other words, they claim that there was unnecessary duplication of services. I rely on my former findings to the contrary to refute this argument, and add that with the exception of in-chambers conferences, it was only rarely that all attorneys were simultaneously present in court. The documentation of the fees applications allows me to ...


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