The final determination required by Lindy is whether the lodestar amount should be adjusted to account for exceptional circumstances. Foremost among the numerous factors that ought to be considered in deciding whether adjustment is merited are the contingent nature of the case and the quality of counsel's work. Although adjustment, if any, is usually upward, where warranted by extraordinary reasons the lodestar amount may be reduced. Hughes v. Repko, 578 F.2d at 491 (Garth, J., concurring).
Defendants urge that three considerations merit a 50% Reduction of Mr. Levine's $ 9021.50 basic award. First, defendants say, the litigation conducted by Mr. Levine was simple, consisting mostly, in his own words, of "people getting up on the witness stand and describing what the circumstances were." Second, because the closed cells were reopened five months later, the success was short-lived. And third, an unreduced recovery here would constitute an impermissible windfall to Mr. Levine.
I find these arguments unpersuasive. The Eighth Amendment issues litigated here were not easy. Of course the trial consisted largely of putting on witnesses. Most trials consist mostly of precisely that. To reduce an attorney's fee because he did no more than successfully elicit testimony would be substantially to repeal § 1988. Further, Mr. Levine here did more than simply present witnesses if indeed such a task can be said to be simple. To prevail on the Huntingdon issue, Mr. Levine had to discern in the impressionistic swamp of cruel and unusual punishment precedents identifiable standards and present them coherently and tellingly. This was not so easy as defendants now remember and no reduction is justified on grounds of simplicity of issues.
Nor is a reduction warranted because Mr. Levine's success was short-lived. The July 1978 injunction closing the Huntingdon isolation cells was suspended in November 1978 because conditions in those units had improved enough to erase the stamp of unconstitutionality. This improvement, rather than detracting from plaintiffs' success, confirmed the importance of Mr. Levine's work. It would be absurd to reduce the award simply because defendants cured the Eighth Amendment defects after losing the litigation.
Lastly, defendants' fear that unreduced recovery here would be an unallowable windfall is unfounded. In one sense, any fee award is a windfall for Mr. Levine because he began work on this action at a time when it was widely thought that the Eleventh Amendment barred recovery of attorney's fees in a case, like this, where recovery was sought from a state. But that is not the sort of windfall award with which defendants are concerned. Recovery by a private attorney general, which Mr. Levine was here, "so lucrative as to ridicule the public attorney general," Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 719 (5th Cir. 1974), is what worries them. I do not find the undiminished lodestar so spectacular as to mock the Attorney General of the Commonwealth, who has of course defended this suit for seven years. The windfall fear, I think, is properly factored into the decision whether to augment the lodestar amount, not into the decision whether to reduce it. No reduction is justified by this concern because the basic award is, by definition and as determined in IV and V above, not overly-lucrative but rather a reasonable recovery.
Denying defendants' proposed reduction of the lodestar amount does not of course compel granting Mr. Levine's urged increase of the basic recovery. Mr. Levine endeavors to augment his award by 50%, 25% Based on the contingent nature of the case and 25% Based on the quality of work performed here. I do not accept Mr. Levine's proposed increase.
Every case in which attorney's fees are sought involves the possibility that counsel will not prevail and therefore will not be paid. This is because a case in which counsel is compensated regardless of success is not the proper subject of a fee petition. The contingency factor, then, because inherent in every suit for attorney's fees, cannot always justify an increase of the lodestar amount, unless such an adjustment is to be automatic. The Lindy series of cases does not envision this categorical increase. Only when the contingency involved in a particular case is somehow exceptional should the basic recovery be supplemented.
The contingent nature of this action is not, I think, unusual enough to warrant an increase. Success here, albeit uncertain, was not so remote a likelihood that counsel deserves to be compensated simply for taking the case. For over a decade, litigation of this sort has not been a stranger in the federal courts and the contingencies involved in bringing such a suit are, to a great extent, foreseeable and not extraordinary. What was exceptional here was counsel's above-mentioned willingness to take the case at a time when it was unsettled whether the Eleventh Amendment barred recovery of attorney's fees. I will return to this risk in the discussion below.
Mr. Levine's argument that a 25% Increase is justified by the high quality of his work is, I think redundant. The liberal hourly rates approved in V above assume services of the highest quality. Only the rarest sort of work would merit a 25% Supplement to the ample lodestar here. Mr. Levine's services, although excellent, were not so distinguished as to justify his requested increase.
I do think, however, that Mr. Levine deserves some upward adjustment of his basic recovery. Counsel cites in support of his argument for an increase the "tens of thousands" of benefited class members, the importance of the rights vindicated and the public interest implicated in this suit. Judge Garth, concurring in Hughes v. Repko, noted that these considerations are proper ones:
"In an award under the Civil Rights Act, . . . the district court might consider, Inter alia: the importance of the constitutional right . . . which has been vindicated; the number of citizens who have been benefited or whose rights have been vindicated (and) the extent to which the public interest has been served." 578 F.2d at 492 n.5.
I believe that the public interest element justifies a supplement here.
Because plaintiff class consisted of all inmates present and future, of the Commonwealth's prison system, the number of persons who have benefited from Mr. Levine's efforts in this action is large. For this reason alone, an increase of the basic amount is perhaps justified under Third Circuit case law. I do not, however, much rely on that numerical consideration in this suit because the significance of constitutional litigation does not always correspond to the number of successful plaintiffs.
I am likewise not much helped here by considering the importance of the rights involved. The several interests vindicated by the consent decree, the law library stipulation and the solitary confinement litigation are unmistakably fundamental ones; indeed, they are as essential to the purpose and limits of our social contract as any embodied in the Constitution. On the other hand, I am troubled by the possibility, implicit in Judge Garth's Hughes v. Repko note, that I may find the rights protected here to be more fundamental than those involved in other constitutional cases. The precious rights guaranteed by the Constitution are not ranked. To distinguish among petitions for counsel fees based on the importance of the interests involved seems to me, in constitutional cases at least, to invite the creation of a hierarchy of rights a development that wisely has been avoided for nearly two centuries.
What convinces me that an increase in the basic recovery is appropriate here is neither the number of plaintiffs involved nor the importance of the rights vindicated, but rather the public interest that has been furthered by this action. The often-stated purpose of § 1988 is to advance the public interest in affording victims of civil rights violations effective access to the judicial process. House of Representatives Report No. 94-1558, 94th Cong. 2nd Sess. p. 1 (1976); Senate Report No. 94-1011, 94th Cong. 2nd Sess. p. 2 (1976). This announced interest in providing access to the federal courts was significantly furthered by Mr. Levine's work.
A class action on behalf of all present and future prisoners in a state penal system is neither a glamorous nor a popular case. Plaintiffs in a suit like this are, within frequent exceptions, financially unable to retain private counsel on any other than a contingent fee basis and where, as here, injunctive relief is the essential intention of the suit, even a contingency arrangement is difficult. Further, for obvious reasons, representing clients confined in distant prisons presents frustrating logistic and legal difficulties. These factors and others convince me that when Mr. Levine took this case seven years ago he gave an experienced and persuasive voice to a wronged class that otherwise may have gone unheard. Moreover, when Mr. Levine began work on this case, the possibility of compensation from the Commonwealth was clouded by Eleventh Amendment concerns. This obstacle to retention of private counsel by plaintiffs, coupled with those just cited, underscores the contribution made by Mr. Levine to the Congressional goal of effectively opening the courts to civil rights plaintiffs.
The important public interest furthered by Mr. Levine's services should not be lightly regarded. Granted, no palpable benefit is bestowed on the Republic by the closing of three isolation cells in central Pennsylvania or by the availability to state prisoners in Philadelphia of the Federal Supplement. Nonetheless, the significance, indeed the necessity of these successes is profound.
The greatness of a society is not measured by the treatment accorded its powerful and affluent. Throughout history, these classes have fared well in humane and cruel cultures alike. Fair treatment of the vulnerable among its number is what makes a society great. When a suit such as this is successfully brought, our society advances an imperceptible but real distance towards the constitutional promise of a more perfect union. As Justice Field wrote exactly a century ago in the prisoners' rights case of Ho Ah Kow v. Nunan, 12 F.Cas. 252, 256 (CCD Cal.1879) (citation omitted):
"It is certainly something in which a citizen of the United States may feel a generous pride that the government of his country extends protection to all persons within its jurisdiction; and that every blow aimed at any of them, however humble, come from what quarter it may, is "caught upon the broad shield of our blessed Constitution and our equal laws.' "
Mr. Levine's work here has confirmed the generous pride of which Justice Field eloquently spoke. I find that his contribution justifies a 15% Supplement to the basic recovery determined above. I note that some uncertainty has recently been expressed whether adjustment of the lodestar is to be worked by a multiple, a percentage or a fixed dollar amount. AAMCO Automated Transmissions, Inc. v. Tayloe, 82 F.R.D. 405, 416 (E.D.Pa. 1979). The 15% Addition here is not meant to express an opinion on this question. I use a percentage increase only because I have used that method without controversy in the past. See, e.g., In re Penn Central Securities Litigation, 416 F. Supp. 907, 932 (E.D.Pa.1976). Adding 15%, $ 1353.25, to the basic recovery, $ 9021.50, gives Mr. Levine a total of $ 10,374.75.
Finally, counsel asks compensation for costs in the amount of $ 630.59. Paragraph 5 of Mr. Levine's affidavit lists the requested cost items. I find them reasonable and will order full recovery.
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