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PLANNED PARENTHOOD ASSN. OF SOUTHEASTERN PENNSYLVA

December 31, 1980

PLANNED PARENTHOOD ASSOCIATION OF SOUTHEASTERN PENNSYLVANIA, INC. and John Franklin, M.D. on his own behalf and on behalf of all others similarly situated
v.
The COMMONWEALTH OF PENNSYLVANIA



The opinion of the court was delivered by: GREEN

MEMORANDUM

This action challenged the constitutionality of the Pennsylvania Abortion Control Act of 1974, 35 P.S. § 6601 et seq., a comprehensive statute passed in the wake of Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973) and Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973). Now before the Court is plaintiffs' petition for an award of counsel fees. The defendant from whom the award is sought, the Commonwealth of Pennsylvania, concedes that plaintiffs are entitled to fees from it under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988. *fn1" However, the Commonwealth opposes the instant petition on two grounds. First, it contends that plaintiffs seek, but may not recover, compensation for time spent on issues which plaintiffs ultimately lost. Second, it argues that much of the time claimed by plaintiffs' counsel on successful claims was unnecessary or duplicative.

 I held an evidentiary hearing to consider these objections. With the benefit of that hearing, I restrict the fee award only to the claims on which plaintiffs prevailed, calculate the "lodestar", adjust for contingency and, further adjust for the benefit realized in furthering the important substantive purposes of the Civil Rights Act.

 The history of this litigation has been reported in two opinions, Colautti v. Franklin, 439 U.S. 379, 99 S. Ct. 675, 58 L. Ed. 2d 596 (1979) and Planned Parenthood v. Fitzpatrick, 401 F. Supp. 554 (E.D.Pa.1975). I will not repeat it here, save to point out the final disposition of the issues raised. Plaintiffs prevailed in their challenge to the spousal and parental consent requirements of the Act, the reporting and criminal enforcement provisions accompanying the consent requirements, and the Act's restriction on abortions where the fetus "may be viable." They were unsuccessful in litigating the Act's definitions of "viable" and "informed consent", the public funding prohibition, the advertising prohibition, and all sections which empowered the Pennsylvania Department of Health to promulgate regulations governing abortions. Plaintiffs also failed in their attempt to have the Act declared unconstitutional in its entirety.

 The Commonwealth concedes that plaintiffs are a "prevailing party" entitled to fees under the 1976 Fee Award Act. That Act provides that "the Court, in its discretion, may allow the prevailing party ... a reasonable attorney's fee...." 42 U.S.C. § 1988. However, relying on Hughes v. Repko, 578 F.2d 483-87 (3d Cir. 1978), it argues that plaintiffs are a "prevailing party" only insofar as they were successful in pressing their claims. To the extent that the claims failed, the Commonwealth argues, plaintiffs were not a "prevailing party" and thus may not receive fees under the 1976 Act.

 Plaintiffs contend, on the other hand, that compensation should be granted for all the time invested in the litigation of this action. Acknowledging Hughes, they insist that only one "claim" was asserted in the case that the Act unlawfully infringed on the constitutionally protected rights of physicians and their patients. Since they substantially succeeded on this claim, plaintiffs contend that they are entitled to counsel fees for all the legal services rendered.

 By insisting that only one claim was advanced in this multifaceted litigation, plaintiffs are attempting to distort history and to avoid the clear mandate of Hughes. It is clear to me that the action encompassed several distinct claims for plaintiffs' success in invalidating any one provision of the Abortion Control Act did not guarantee, or necessarily contribute to, success in invalidating any other. The original complaint acknowledged this fact by separately titling the averments "causes of action." Moreover, in fidelity to Hughes, even if I accepted plaintiffs' contention that only one claim was asserted, I could award fees only for those hours that were "reasonably supportive" of it. Since all but two of the Act's sections were challenged on dissimilar grounds, the time spent on unsuccessful issues rarely supported plaintiffs' success. Thus, as far as fees are concerned, plaintiffs fare no better with one claim than with several.

 In Hughes the Court of Appeals recognized that it is not always easy to determine who is the "prevailing party" for purposes of the 1976 Fee Award Act, particularly where there are multiple claims and/or multiple parties, and where the petitioning party is not completely successful. The court said that in order to apply the language of the statute fairly, district courts should analyze the results obtained by the petitioning parties on particular claims, awarding fees for the prosecution of those claims where the petitioner essentially succeeded on such claim, as "claim" is used in Fed.R.Civ.P. 10(b). This analysis does not permit an award for having declared, unasked, that sections of the challenged legislation are constitutional. In short, the public policy considerations cited by plaintiffs simply do not make them a "prevailing party" under the 1976 Fee Award Act when they lose. At least in our judicial circuit, plaintiffs may recover fees under the Act only when and to the extent that they have essentially succeeded on their claim.

 II.

 I turn now to the questions raised concerning the services attributable to the successful claims. The Commonwealth argues that four categories of services were not reasonably supportive of plaintiffs' successful claims: (1) services devoted to those sections of the Abortion Control Act which the three-judge panel or the Supreme Court upheld; (2) services in behalf of the contention that the Act was unconstitutional in its entirety; (3) services performed on behalf of Planned Parenthood, CHOICE and Clergy Consultation, the groups that were dismissed as plaintiffs for lack of standing; and (4) services performed prior to the formal intervention of the Commonwealth as a defendant.

 The first two categories of services represent instances where plaintiffs challenged the validity of the Abortion Control Act and failed. Therefore, they fall squarely within the statement by the Court of Appeals that "... the fee-petitioner cannot be treated as the prevailing party to the extent he has been unsuccessful in asserting a claim." Hughes, supra, 578 F.2d 483 at 487. Such services are compensable only if they overlapped and also supported the prosecution of a successful claim.

 At hearing, counsel for plaintiffs testified that there was only one area of overlap. The research and discovery on the "viable" issue, which plaintiffs lost, were basically the same as those on the "may be viable" issue, which plaintiffs won in the Supreme Court. See Colautti v. Franklin, supra, 439 U.S. 379. Because the work on the "viable" issue contributed to plaintiffs' success on the "may be viable" claim, it is compensable as a service reasonably supportive of a successful claim. See Hughes, supra, 578 F.2d 483 at 487. However, I will deny compensation for work on the definition of "informed consent," the public funding prohibition, the advertising prohibition, the sections of the Act empowering the Department of Health to promulgate regulations governing abortions, and the challenge to the Act in its entirety. That work did not reasonably support plaintiffs' successful claims and is noncompensable under Hughes.


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