Delaware Valley and Pennhurst cases. In addition, I reject the argument based upon Mr. Haigh's affidavit which illustrates that DPW was extensively involved in the legislative process which resulted in the 1976 Act. DPW actively worked with the legislature to achieve passage of the 1976 Act. Its passage is properly attributable to DPW and the Secretary. DPW unquestionably is responsible for the regulations discussed since they were promulgated by it.
For all the reasons stated above, I conclude that based upon the statutory and regulatory changes during the pendency of this litigation plaintiffs are prevailing parties. I conclude that they essentially succeeded and that this litigation was a catalyst for the defendants' actions. The success achieved by the plaintiffs was complete upon promulgation of the 1978 Regulations on September 2, 1978. As to all hours devoted to the merits after September 2, 1978 1978, I conclude that plaintiffs are not prevailing parties and are not entitled to an award of fees for this period.
II. Amount of Award
I have concluded that the plaintiffs are prevailing parties within the meaning of the Fees Act. I now turn to the determination of the amount of fees to be awarded. In making this determination I have taken into account the recent Supreme Court pronouncement in this area, Hensley v. Eckerhart, 461 U.S. 424, 103 S. Ct. 1933, 76 L. Ed. 2d 40, 51 U.S.L.W. 4552 (1983). I must consider how, if at all, this decision affects the "Lindy" analysis previously applied in this circuit pursuant to Lindy I and II and their progeny. See Lindy Brothers Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d Cir. 1973) ((LindyI); Lindy Brothers Builders, Inc. v. American Radiator & Standard Sanitary Corp., 540 F.2d 102 (3d Cir. 1976) (Lindy II).
The Lindy line of cases sets forth a specific approach to the decision of fee petitions. Under Lindy, the court determines the number of hours actually worked which were reasonably necessary and contributed to the essentially successful claims. Then, the reasonable hourly rate for each attorney seeking compensation is determined. Multiplication of the hours by the rate results in the lodestar. After arriving at a lodestar, I consider whether adjustments for quality, contingency or other factors are warranted.
In my view, Hensley affects the Lindy analysis in two ways. First, it emphasizes an additional factor justifying adjustment of the lodestar, i.e., the relationship between the extent of success and the amount of the fee award. 51 U.S.L.W. at 4556. Second, it casts doubt on the prior opinion of the Third Circuit in Hughes v. Repko, 578 F.2d 483, 486-87 (3d Cir. 1978) which held that the plaintiff could only recover for hours which contributed to essentially successful claims. In contrast to Hughes, the Supreme Court in Hensley approves of compensation for hours spent on unsuccessful claims which are related to successful claims.
Hensley speaks in terms of related and unrelated claims. The Court states that no award can be made for services on unsuccessful claims which are unrelated to the successful claim. Where, however, the unsuccessful claims are related to the successful claims. either by a common core of facts or legal theories, the Court states that these unsuccessful claims may not be treated as discrete. The Court's opinion does not state that the hours devoted to the related claims must be compensated but rather that they may be. To determine whether these hours should be compensated the lower courts are directed to focus on the result obtained. If the result is excellent, all hours spent on successful claims and claims related to the successful claims should be compensated. However, if plaintiffs achieve only limited success, the compensation may be reduced. The Hensley Court noted that the district court could (1) eliminate specific hours which were devoted to the related unsuccessful claims, or (2) reduce the overall award. Id. at 4555. The second method is particularly useful because where the unsuccessful claims are related to the successful claims it will frequently be impossible to identify a specific number of hours devoted to the unsuccessful, related claims.
The Supreme Court's discussion of related and unrelated claims may not be a repudiation of Hughes v. Repko. Hughes precluded awards for services rendered on unsuccessful claims as the word claim is defined in Fed.R.Civ.P. 10. Hughes could be understood to apply to the type of claim the Court in Hensley called unrelated. In any event, I shall follow the analysis set forth in Hensley.
The hours spent by the plaintiffs prior to September 2, 1978 were devoted to successful and unsuccessful claims which were based on a common core of facts grounded in the same legal theories. Thus, they were related as the Hensley Court uses that term. They are so interrelated that it is not feasible to strike specific hours from the plaintiffs' petition. Rather, as discussed below, I will make an adjustment to the lodestar to account for the limited success.
A. David Ferleger
David Ferleger, lead counsel for the class, has represented plaintiffs in numerous legal actions in the area of mental health law. As a result his reasonable hourly rate has been litigated previously in this district. Judge Broderick wrote with respect to Mr. Ferleger's reasonable hourly rate for 1981-1982:
David Ferleger has practiced law for approximately nine years. During that time, he has become recognized nationally as an outstanding trial counsel in legal actions designed to improve the lives of the handicapped. He has represented the plaintiff class in this litigation since its inception in 1974, and has been trial counsel in other major litigation in this district, including cases such as Vecchione v. Wohlgemuth, 426 F. Supp. 1297 (E.D. Pa. 1979) . . . This Court finds that the hourly rate of $105 per hour requested by Mr. Ferleger is most modest in light of his outstanding legal abilities and trial accomplishments.
Halderman v. Pennhurst State School and Hospital, 533 F. Supp. 649 (E.D. Pa. 1982).
I agree with Judge Broderick's findings which are supported by the material submitted to me. See Ferleger Affidavit; Deposition of David Ferleger. I determine that Mr. Ferleger's reasonable hourly rate for the period of 1980-1981 was $95 per hour. Judge Becker while he was on the bench of the district court adjudicated Mr. Ferleger's reasonable hourly rate for earlier periods as follows: 1975 -- $55; 1976 -- $65; 1977 -- $70; 1978 -- $80; 1979 -- $90. Based upon the material submitted to me, I concur that these amounts represent Mr. Ferleger's reasonable hourly rate for these periods.
I must determine Mr. Ferleger's reasonable hourly rate for the period 1972 -- 1975. In 1972, Mr. Ferleger was just beginning his legal career. His expertise as a trial lawyer in this area of the law had not yet been acquired. Nevertheless, from the outset of this litigation, Mr. Ferleger had extensive knowledge of the legal problems peculiar to the mentally disabled, gained through field research performed while he was still a law student. From the outset of the litigation he had responsibility for substantially all of the case, in court and out. I conclude that $50 per hour is Mr. Ferleger's reasonable hourly rate for the period of 1972-1975.
I am aware that Judge Newcomer adjudicated Mr. Ferleger's reasonable hourly rate to be $50 per hour for the later period of 1973-1975. However, Judge Newcomer characterized his case as "average" when making his fee determination. See Mental Patients Civil Liberties Project v. Hospital Staff Civil Rights Committee, No. 73-1512 (E.D. Pa. Feb. 2, 1979). Institutionalized Juveniles was not an "average" case. The legal questions were novel. The organization and management of the class were taxing. The state vigorously defended as is evidenced by the fact that this case was before the Supreme Court on two occasions. Accordingly, this case is distinguishable from Judge Newcomer's case.
I shall apply these historical hourly rates in determining what fee should be awarded. The plaintiffs have suggested that I calculate the fee at Mr. Ferleger's current hourly rate. Noting the number of years that have passed since the services for which he seeks compensation were performed, Mr. Ferleger argues that an award at his current rate would compensate him for inflation. I decline to follow this course. As Judge Becker noted in Vecchione, Lindy II permits an adjustment to the lodestar to account for delay in receipt of payment. Vecchione v. Wohlgemuth, 481 F. Supp. 776, 790 (E.D. Pa. 1979). This approach is preferable.
I now turn to a determination of the reasonable number of hours actually worked for which plaintiffs may be compensated. Based upon my earlier discussion of plaintiffs' status as prevailing parties, I have eliminated all hours after September 2, 1978 except for those hours Mr. Ferleger spent on his fee petition. I have closely examined the hours claimed before September 2, 1978. For the most part Mr. Ferleger's affidavit sets forth how he spent his time in sufficient detail. The times claimed appear consonant with the magnitude of the tasks described. The times are reliable since most were taken from contemporaneous time records kept by Mr. Ferleger. As to the early years of the litigation, the hours claimed are based upon a reconstruction. I approve of the method used by plaintiffs' counsel to reconstruct his time and the reconstruction appears reasonable. See Ferleger Affidavit para. 60, at 20a-20b. Nevertheless a few of the hours are claimed for tasks which are not sufficiently identified to allow me to determine whether they were reasonably necessary for success in this action. For this reason, I will reduce the award as follows: 50 hours claimed in relation to pleading 52 on page 23 of the Ferleger Affidavit are reduced to 25, all hours spent writing to and reviewing letters from the N.J. Public Advocate and Legal Services lawyers are eliminated, and .3 hour on 1/20/78 claimed for discussion with an unidentified student is eliminated.
In some cases the hours claimed appear to be excessive for the tasks listed. For this reason, I will reduce the award as follows: accumulated time for meetings, negotiations and communications claimed on page 23 of the Ferleger Affidavit is reduced from 45 hours to 20 hours, and 38 hours spent drafting the complaint and reviewing records from 10/19/77 to 11/1/77 are reduced to 20. Finally, I will reduce the number of hours which Mr. Ferleger claims to have spent on the preparation of this fee petition because the time is not identified in detail and the amount of time appears excessive. The total number of hours in 1980-1981 sought for work on this fee petition is 41.30 hours. I shall reduce this to 13.30 hours in 1980 and 8 hours in 1981 which appears to me to be reasonable even in light of the amount of time counsel had to devote to reconstructing time spent on the early portion of this case.
After eliminating the hours mentioned above, Mr. Ferleger's lodestars may be calculated as follows:
DATE HOURS X RATE = SUBTOTAL
12/31/74 493.2 $50 24,660.00
1975 22.0 $55 1,210.00
1976 336.0 $65 21,840.00
1977 51.3 $70 3,591.00
1978 270.7 $80 21,656.00
LODESTAR -MERITS 72,957.00
1976 .2 $65 13.00
1977 .1 $70 7.00
1980 13.3 $95 1,263.50
1981 8.0 $105 840.00
LODESTAR - FEE PETITION 2,123.50
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