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MCMULLAN v. THORNBURGH

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


August 19, 1983

Mary McMULLAN, et al.
v.
The Honorable Dick THORNBURGH, et al.

The opinion of the court was delivered by: POLLAK

LOUIS H. POLLAK, District Judge.

 I.

 Local Registrars of Vital Statistics (hereinafter "local registrars") are employees of the Pennsylvania Department of Health who are responsible for the issuance of birth and death certificates in suburban and rural areas. Compensated on a fee-for-certificate basis, local registrars typically work only part-time, and very frequently they perform their official duties out of their homes. In late August of 1979, Pennsylvania's Secretary of Health sent identical letters to a number of incumbent local registrars advising them that they were discharged effective September 11, 1979. The decision to discharge a number of local registrars was approved by the defendant, Governor Richard Thornburgh.

 The eight plaintiffs, residents of Delaware and Montgomery Counties, are among the discharged local registrars. They brought this lawsuit, pursuant to 42 U.S.C. ยง 1983, to challenge Governor Thornburgh's discharge decision as it related to them. Specifically, plaintiffs alleged that they were selected for discharge because they were Democrats. Plaintiffs contended that termination of their public offices because they belonged to the "wrong" political party contravened the constitutional teaching of Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976). Plaintiffs sought reinstatement and "back pay" -- i.e., reimbursement for the fees which, but for their wrongful discharge, would have inured to them from the date of termination, September 11, 1979, to the hoped-for date of reinstatement.

 At trial, defendant Thornburgh undertook to show that plaintiffs' removal from office -- although apparently welcomed and even encouraged by some county-level Republican loyalists -- was not viewed at the gubernatorial level as conventional party warfare. From the Governor's perspective, the removal of plaintiffs and others was the first step in a Thornburgh administration plan to reform the birth-and-death recordation process. The Governor's stated long-term objective was to abolish the local registrar system -- a time-honored cornucopia of party patronage but not a model of efficient public administration -- and transfer responsibility for the issuance of birth and death certificates to regional offices of the Department of Health. Replacing Democratic local registrars with non-Democrats was represented as a short-term device calculated to make the eventual disappearance of the registrar system a matter of political indifference to the Democratic Party. Thus, according to testimony adduced by defendant at trial, the Thornburgh strategists believed, or at least hoped, that Democratic members of the Legislature would not stand in the way of the legislation required to dismantle the local registrar system.

 Plaintiffs, for their part, sought to show at trial that the Governor's proposed reform was a misdirected effort to fix something that wasn't broken; that it was politically unattainable; and, indeed, that it was not even seriously intended -- which is to say that it was an ineffective camouflage for patronage-as-usual.

 Concluding that (a) the Governor's asserted rationale for removing local registrars, whatever its tactical weaknesses, was pursued in good faith, but (b) that the Governor's good faith did not constitute a legally adequate justification for selecting persons for dismissal from public office on account of their party affiliation, this court found that plaintiffs had established their claims under the principles announced in Elrod v. Burns, supra, as further elaborated in Branti v. Finkel, 445 U.S. 507, 100 S. Ct. 1287, 63 L. Ed. 2d 574 (1980). Accordingly, this court ordered plaintiffs restored to their posts with back pay. McMullan v. Thornburgh, 508 F. Supp. 1044 (E.D.Pa.1981). The Court of Appeals affirmed. 671 F.2d 496 (3d Cir. 1981). And the Supreme Court denied certiorari. 454 U.S. 1147, 102 S. Ct. 1010, 71 L. Ed. 2d 300 (1982).

 Thereupon plaintiffs were reappointed as local registrars. However, in order to keep places for the persons appointed in 1979 as plaintiffs' successors, the Department of Health redrew the registrar districts and awarded plaintiffs and their successors smaller domains than they had hitherto occupied. Since a smaller district meant fewer births and deaths and hence fewer certificates and lower fees, plaintiffs sought a determination that Governor Thornburgh was in contempt of this court's order of reinstatement. This court did not find the Governor in contempt but did determine that its reinstatement order had not been satisfactorily complied with. Pursuant to that determination, plaintiffs were restored to the precise districts which had been theirs in September of 1979; in addition, they received an aggregate back pay award of $152,104.72. This completed disposition of the merits of this extended litigation.

 II.

 What remain for disposition are plaintiffs' petitions for counsel fees and costs. The petitions will be dealt with in three parts -- (A) the fees sought to recompense plaintiffs' counsel for handling the merits of the controversy; (B) the fees sought to recompense counsel for the work done in petitioning this court for the fees sought for handling the merits; and (C) costs.

 A. Plaintiffs' Counsel Fees For Representation On The Merits

 With respect to the merits of this litigation, plaintiffs have been represented throughout by the Media firm of Richard, Brian, DiSanti and Hamilton. In the early months, Jack Brian, a senior partner, and John M. Gallagher, Jr., a junior partner, had joint charge of the case. Mr. Brian withdrew from active practice in January of 1980. Thereafter, Mr. Gallagher took full command, and he in fact personally conducted almost every phase of the pre-trial, trial, appellate and compliance phases of the litigation: for part of 1980 Mr. Gallagher had the very limited assistance of two associates, but he has done everything himself from November of 1980 onward. The firm's aggregate hours spent on the merits came to 540.6; of these, 25.5 hours are credited to Mr. Brian, *fn1" 502.5 hours are credited to Mr. Gallagher, *fn2" 10.1 hours to R. B. Pavelow, *fn3" and 2.5 hours to A. S. Walsh. *fn4"

 To turn these raw data into a proper award of counsel fees, it is necessary to pursue the steps mapped out by the Third Circuit in Lindy5 and related opinions. *fn6"

 The "lodestar" is a dollar figure arrived at by (1) determining, as to each lawyer who worked on plaintiffs' prevailing claims, (a) the number of hours spent by that lawyer on professional services reasonably related to those claims and (b) the hourly rate proper for that lawyer; (2) multiplying hours times hourly rate for each lawyer; and (3) adding those products to arrive at an aggregate dollar figure for plaintiffs' lawyers' time spent. That aggregate dollar figure is the lodestar.

 There can be no serious quarrel with the 540.6 hours devoted by plaintiffs' counsel to the merits of this lengthy and demanding litigation. Morgan, Lewis & Bockius, the firm retained to represent Governor Thornburgh, spent about twice as many hours in defending against plaintiffs' claims.

 With respect to a proper hourly rate: First, there can be no real quarrel with the claimed $125 hourly rate of Mr. Brian for his 25.5 hours. *fn7" Second, there is certainly no question as to the propriety of the modest $50 per hour claimed for the 12.6 hours of Messrs. Pavelow and Walsh. *fn8" What presents some difficulty is determining the proper hourly rate, at different times, of Mr. Gallagher, whose 502.5 hours constitute the lion's share of the representation: For approximately two-fifths of these hours -- 208.6 -- Mr. Gallagher's time is valued by plaintiffs at $100 per hour, the hourly rate at which Mr. Gallagher's time was billed to other clients from September of 1979, when this representation began, through May of 1980. For the 186.7 hours spent between June of 1980 and October of 1981, plaintiffs seek $125 per hour, the rate at which Mr. Gallagher's billable rate had by then ascended.

 Mr. Gallagher, who commenced practice in 1969, is a seasoned trial lawyer and has had considerable experience in civil rights litigation; but he is not yet a senior member of the bar, nor a lawyer with a broadly recognized expertise in constitutional litigation. Mr. Gallagher does not, for example, have the long and varied experience of his erstwhile senior partner, Mr. Brian, whose hourly billing rate was $125 when he retired in 1980. Nor does Mr. Gallagher have the years and rank at the bar of William J. Taylor, Esq., chief counsel for Governor Thornburgh in this case. Mr. Taylor, one of the top litigators at Morgan, Lewis & Bockius when this case commenced, and now head of his own firm, on occasion commands (at least) $150 per hour. *fn9" And, while of comparable age, Mr. Gallagher does not have the special competence in constitutional litigation possessed by the attorney retained by Mr. Gallagher in connection with this fee petition, Alan M. Lerner, Esq., of Cohen, Shapiro, Polisher, Shiekman & Cohen, whose hourly billing rate went from $100 to $110 in 1980, then to $125 in 1981 (cf. Shadis v. Beal, No. 75-3421 (E.D.Pa., March 12, 1982) affirmed, 703 F.2d 71 (3d Cir.1983)), to $135 in 1982 and to $150 this year.

 Setting a proper hourly rate, or series of hourly rates, for Mr. Gallagher is further complicated by the fact that Mr. Gallagher has personally conducted approximately 90% of plaintiffs' case. In most litigation of substantial scope, it is quite unusual for the senior attorney to carry, in point of hours, the laboring oar. The senior attorney is concerned not to dissipate the firm's most valuable resource -- the senior attorney's own time -- on inessentials. And the senior attorney is also reluctant to saddle the client with time-charges measured at the senior attorney's rate unless the particular professional service involved really calls for the investment of the senior attorney's own time. With this in mind, the senior attorney typically delegates to associates and younger partners such chores as primary legal research; the initial drafting of pleadings, interrogatories, motions and briefs; and preparation for and frequently the actual conduct of depositions. This means that, typically, the senior attorney tries to limit personal participation to (1) carrying the client's banner at significant in-court conferences and arguments and at the trial itself, and (2) handling those out-of-court aspects of the litigation which insistently demand the senior's presence -- e.g., initial client contact; development and subsequent monitoring of over-all strategy; final review of draft pleadings and briefs; conduct of key depositions; preparation of the chief trial witnesses; and conduct of settlement negotiations. *fn10"

 Plaintiffs contend that Mr. Gallagher's virtually single-handed conduct of this case reflected his professional judgment that fidelity to his clients' vindication of significant and difficult claims required his personal involvement at all points. The operative question is not, however, whether Mr. Gallagher's professional judgment is to be second-guessed. The operative question is whether defendant should bear the dollar burden of paying for every hour of Mr. Gallagher's professional services at the rate which would appropriately compensate Mr. Gallagher for the fulfillment of his most demanding responsibilities. The answer is no. Where a plaintiff in a civil rights case retains a law firm whose younger partners and associates are not numerous enough, or not sufficiently skilled in litigation, to handle those litigation tasks which would in most law firms customarily be delegated to juniors, Congress cannot have intended that a losing defendant should, as an additional ingredient of plaintiff's counsel fees, be saddled with the dollar burden of the plaintiff's firm's uneconomic allocation of the senior attorney's professional time.

 It seems proper, therefore, to calculate Mr. Gallagher's hourly rate by reference to two different standards, depending on the nature of the professional services and the time-period during which those services were performed. For in-court conferences and hearings, and out-of-court services requiring the senior attorney's involvement, Mr. Gallagher's customary hourly billing rate for the time period in question will be utilized. *fn11" It would, of course, be idle to contend that this record is sufficiently informative to support precise findings as to which out-of-court services necessitated drawing on Mr. Gallagher's highest skills and which did not. Bearing in mind that the burden of proof rests with plaintiffs to justify counsel fees, certain inferences can confidently be drawn at both ends of the spectrum -- e.g., Mr. Gallagher was on sound ground in concluding that he personally had to depose certain key defense witnesses and consult with his own key witnesses about deposition and/or trial testimony; but Mr. Gallagher has not shown why junior attorneys, if available, could not have handled most of the depositions, shouldered the major burden of drafting written submissions, made the bulk of the innumerable routine telephone calls, etc. (Nor is it apparent why Mr. Gallagher's travel time to and from depositions, court-appearances and the like should be charged at his prime billing rate). Further inquiry by this court seems unwarranted, since it would not appear to be the court's responsibility -- certainly not, sua sponte -- to pursue "a detailed analysis of the lawyer's performance in each category of services rendered." Lindy II, 540 F.2d at 118. In lieu of such a "detailed analysis," this court will presume that one-fourth of Mr. Gallagher's out-of-court hours were devoted to services which ought optimally to have been handled by the senior attorney notwithstanding the additional cost of such skilled representation. This means that in calculating the lodestar, Mr. Gallagher's in-court hours and one-fourth of his out-of-court hours will be charged at Mr. Gallagher's prevailing prime rate for the time period in question -- i.e., $100 per hour from September of 1979 through May of 1980; $125 from June of 1980 through October of 1981; and $135 from November of 1981 onwards. For the other three-fourths of Mr. Gallagher's out-of-court hours, the lodestar calculation will utilize, for each of the three time periods, a hypothetical hourly rate adequately compensating a hypothetical partner junior to Mr. Gallagher. That hypothetical rate should, of course, be lower than Mr. Gallagher's billing rate but higher than the billing rate of associates Pavelow and Walsh, which was $50 in 1979 and early 1980 and rose to $75 in December of 1980. Proper rates for the residual three-fourths of Mr. Gallagher's out-of-court hours would, therefore, seem to be as follows: $85 from September 1979 through May of 1980; $95 from June of 1980 through October of 1981; and $100 from November of 1981 onward. The resultant calculations, which are based on Mr. Gallagher's time-records, are as follows:

 

(a) Mr. Gallagher's Time Charges for September 1979 through May 1980:

 

Mr. Gallagher's time-records show him to have spent 208.6 hours from September of 1979 through May of 1980. Mr. Gallagher was in court for 1 hour on October 1, 1979, 2 hours on October 23, 1979, 6 hours on April 16, 1980, 2.1 hours on April 17, 1980, 2.6 hours on April 18, 1980, 3.3 hours on May 1, 1980, and 4.2 hours on May 2, 1980. Thus, Mr. Gallagher logged 21.2 in-court hours at an hourly rate of $100 for $2120. His 187.4 out-of-court hours are charged as follows: (a) 46.85 hours at an hourly rate of $100 = $4685; (b) 140.55 hours at an hourly rate of $85 = $11,946.75. Mr. Gallagher's total time charges for the period = $18,751.75.

 

(b) Mr. Gallagher's Time-Charges for June 1980 through October 1981:

 

From June of 1980 through October of 1981, Mr. Gallagher devoted 186.7 hours to plaintiffs' case. During this period, Mr. Gallagher was in court as follows: 6.8 hours on September 23, 1980, 5 hours on October 14, 1980, 4.5 hours on December 4, 1980, and 2.3 hours on December 5, 1980. Mr. Gallagher's 18.6 in-court hours, at $125 per hour, come to $2325. His 168.1 out-of-court hours are charged as follows: (a) 42 hours at an hourly rate of $125 = $5250; (b) 126.1 hours at an hourly rate of $95 = $11,979.50. The total time charges for the period = $19,554.50.

 

(c) Mr. Gallagher's Time-Charges From November 1981 Onward:

 

From November 1981 onward, Mr. Gallagher has spent 107.2 hours on the merits. Mr. Gallagher's time-charts show 1 in-court hour on March 3, 1982, and 3 in-court hours on May 11, 1982. At $135 per hour, the in-court hours come to $540. His 103.2 out-of-court hours are charged as follows: (a) 25.8 hours at an hourly rate of $135 = $3483; (b) 77.4 hours at an hourly rate of $100 = $7740. The total time charges for the period = $11,763.

  To calculate the lodestar, we must add to Mr. Gallagher's time-charges the time-charges allocable to the services of Mr. Brian (25.5 hours at $125 per hour = $3187.50) and Messrs. Pavelow and Walsh (12.6 hours at $50 per hour = $630). The addition is as follows: Mr. Brian $ 3,187.50 Messrs. Pavelow and Walsh 630.00 Mr. Gallagher 18,751.75 19,554.50 11,763.00 $53,886.75

19830819

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