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MCMULLAN v. THORNBURGH

August 19, 1983

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



The opinion of the court was delivered by: POLLAK

 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. § 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).

 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 ...


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