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February 24, 1984

COMMONWEALTH OF PENNSYLVANIA, WILLIAM T. SHERLOCK, Individually and as Secretary of the Pennsylvania Department of Transportation, MAURICE K. GODDARD, Individually and as Secretary of the Pennsylvania Department of Environmental Resources AND UNITED STATES OF AMERICA v. COMMONWEALTH OF PENNSYLVANIA, THE PENNSYLVANIA DEPARTMENT OF TRANSPORTATION and WILLIAM T. SHERLOCK, Secretary of the Pennsylvania Department of Transportation, THE PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL RESOURCES and MAURICE K. GODDARD, Secretary of the Pennsylvania Department of Environmental Resources

The opinion of the court was delivered by: BECHTLE



 Presently before the court is a request by plaintiffs for attorneys' fees and costs, under the citizen lawsuit provision of the Clean Air Act, 42 U.S.C. § 7604(d), for legal services rendered by the Public Interest Law Center of Philadelphia. For the reasons which follow, the request will be granted in an award of $209,813.00 in attorneys' fees and an award of $6,675.03 in costs.


 This litigation has its origins in the 0requirements of the Clean Air Act Amendments of 1970, 42 U.S.C. § 7401, et seq. Pursuant to the Act, in April of 1973 the Pennsylvania Department of Environmental Resources ("Penn DER") submitted a plan for meeting federal air quality standards for carbon monoxide and ozone levels in the metropolitan Philadelphia and southwestern Pennsylvania regions. As modified and promulgated by the United States Environmental Protection Agency ("EPA") in November of that year, the plan included a provision requiring the implementation of a program for the inspection and maintenance of automobile emissions systems ("I/M program") by May 1, 1975. 40 C.F.R. § 52.2038 (1981).

 When, by mid-1976, an I/M program had not been implemented, Delaware Valley Citizens' Council for Clean Air ("DVCCCA") brought suit under 42 U.S.C. § 7604 against both the Commonwealth defendants and the EPA (the latter for failing to enforce the Commonwealth's obligations). The EPA also instituted an action of its own against the Commonwealth, pursuant to 42 U.S.C. § 7413(b). EPA was then dismissed as a defendant in the DVCCCA suit, and both actions against Pennsylvania were consolidated.

 On August 29, 1978, following prolonged discovery and negotiations, the Commonwealth and two of its departments, Penn DER and the Pennsylvania Department of Transportation ("Penn DOT"), agreed to a final consent decree terminating both the DVCCCA and the United States actions. The defendants agreed to implement an I/M program for ten counties in the Philadelphia and Pittsburgh areas by August 1, 1980. The consent decree provided that Penn DOT would first seek legislation instituting a franchise I/M system under which the Commonwealth would enter into contracts with garage owners for establishment of inspection stations. The decree provided that should the legislature fail to effect such a system, Penn DOT would promulgate regulations providing for a private garage I/M system under which the Commonwealth would certify a number of privately owned facilities to perform the inspections. When the legislature did not enact a franchise system, Penn DOT issued final regulations authorizing the alternative system. 9 Pa.Bull. 4193 (Dec. 22, 1979). As part of the consent decree, the Commonwealth paid DVCCCA $30,000.00 for attorneys' fees and costs and EPA paid DVCCCA $8,700.00 for attorneys' fees and costs.

 In late 1979 the Commonwealth requested and obtained agreement from DVCCCA and the EPA to modify the original consent decree so as to delay implementation of the I/M program until May 1, 1981. The modification was approved by this court on March 7, 1980. On February 1, 1981, just three months before the I/M program was scheduled to be implemented under the then-existing consent decree, the Commonwealth had still not published final regulations covering the vehicle emissions analyzing equipment which private garages would have to procure in order to become certified inspection stations. On February 6, 1981 the Commonwealth requested DVCCCA and the EPA to consent to another modification of the consent decree so as to delay the start of the I/M program until January 1, 1983. The need for the 20-month delay was to permit the Commonwealth to require the use of computerized analyzer testing equipment. This type of equipment had been recommended by the EPA for decentralized inspection programs such as the Commonwealth's, since it offered greater accuracy and would therefore enhance public confidence in I/M programs. However, this computerized equipment had not yet been produced by any manufacturer, not even in prototype.

 This request for modification was the subject of negotiations among the parties but the parties failed to reach agreement and negotiations came to an impasse. On April 29, 1981 the Commonwealth filed a motion with this court for a modification of the existing consent decree which would delay the start-up of the I/M program from May 1, 1981 to January 1, 1983. On May 1, 1981, DVCCCA filed a motion to have the court hold the Commonwealth in violation of the consent decree's requirement that the Commonwealth implement the I/M program by May 1, 1981.

 Following a court conference on May 6, 1981, the EPA, at this court's request, submitted a brief report on the current air quality in the Philadelphia and Pittsburgh areas. After receiving the information which indicated an unsatisfactory state of air quality in the Philadelphia and Pittsburgh areas, this court on May 20, 1981, denied the Commonwealth's request for a modification of the decree, found the Commonwealth in violation of the requirements of the consent decree, and ordered submission of a plan for immediate implementation of the I/M program. The Commonwealth submitted such a plan, and this court approved it with certain amendments suggested by DVCCCA. On June 16, 1981, the decree was modified in several respects including another extension of the deadline for implementation of the I/M program until May 1, 1982. On July 24, 1981, this court denied a Commonwealth motion for reconsideration of the June 16, 1981 Order. The Commonwealth then filed with this court a motion requesting a stay pending the outcome of its appeal of this court's Orders of May 20, 1981 and June 16, 1981. Both this court and the court of appeals denied the motion to stay and on March 1, 1982, the court of appeals affirmed the Orders of May 20, 1981 and June 16, 1981. Delaware Valley Citizens' Council for Clean Air v. Commonwealth of Pennsylvania, 674 F.2d 976 (3d Cir. 1982). On October 12, 1982, the United States Supreme Court denied the Commonwealth's petition for certiorari. 459 U.S. 905, 103 S. Ct. 206, 74 L. Ed. 2d 165 (1982).

 In the meantime, following this court's decision in June of 1981, the Pennsylvania General Assembly passed House Bill No. 456, § 2 (H.B. 456), which prohibited the expenditure of state funds by the executive branch for the implementation of the I/M program. Although the Governor vetoed the bill, the legislature overrode the veto and enacted H.B. 456 into law. Act of October 5, 1981, No. 99, § 2, 1981 Pa.Legis. Serv. 312. Penn DOT and the executive branch immediately ceased all efforts toward implementing the I/M program, except for publication of final regulations pertaining to the standards for emission analyzers to be purchased by the private garage owners choosing to participate in the program. 11 Pa.Bull. 3519 (Oct. 10, 1981).

 On October 12, 1981, the Commonwealth moved for a stay of the consent decree and for modification thereof on the basis of H.B. 456. DVCCCA moved to declare defendants in civil contempt and to establish sanctions. On January 22, 1982, this court denied the Commonwealth's motion for a stay and declared the Commonwealth and the Secretaries of Penn DOT and Penn DER to be in civil contempt and as a sanction ordered the Secretary of the United States Department of Transportation to refrain from approving any projects or awarding any grants under Title 23 of the United States Code for highways in areas in the Commonwealth covered by the consent decree, other than for purposes of safety, mass transit or transportation projects related to air quality improvement or maintenance. 533 F. Supp. 869 (E.D. Pa. 1982). Defendants appealed and moved for a stay of this court's civil contempt Order pending appeal. A stay was granted by the court of appeals on March 19, 1982. A petition by DVCCCA for a rehearing en banc of the stay was denied on April 6, 1982. On May 21, 1982, the court of appeals affirmed this court's Order of January 22, 1982, declaring the Commonwealth defendants to be in contempt of the consent decree and enjoining the Secretary of Transportation from approving the aforementioned projects or grants. 678 F.2d 470 (3d Cir. 1982). The Supreme Court denied both the Commonwealth's application for a stay of the court of appeals' decision and the Commonwealth's petition for certiorari. 458 U.S. 1125, 103 S. Ct. 14, 73 L. Ed. 2d 1400 (1982).

 On May 3, 1983, the Pennsylvania General Assembly approved Act 1983-3, 1983 Pa.Legis.Serv. Act No. 1983-3 (Purdon), which authorized the defendant Pennsylvania Secretary of Transportation to proceed with the implementation of the I/M program. On May 4, 1983, the Governor of Pennsylvania signed the Act into law. Subsequent negotiations among the parties led to a new compliance schedule establishing June 1, 1984 as the date for commencement of the I/M program. On May 16, 1983, this court ordered that the civil contempt sanction be vacated.


 The Clean Air Act of 1955, Pub.L. No. 91-604, § 12(a), 84 Stat. 1706 (amended 1977), 42 U.S.C. § 7604(d), provides, in pertinent part:


The court, in issuing any final order in any action brought pursuant to subsection (a) of this section, *fn1" may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate.

 Plaintiffs seek attorneys' fees and costs under this provision for all activity performed after the issuance of the consent decree on August 29, 1978. In determining plaintiffs' legal fee award, this court is bound by the framework for determining such awards which has been set forth in Lindy Brothers Builders, Inc. of Philadelphia v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d Cir. 1973) (Lindy I) and subsequently refined in Lindy Brothers Builders, Inc. of Philadelphia v. American Radiator & Standard Sanitary Corp., 540 F.2d 102 (3d Cir. 1976) (en banc) (Lindy II); Merola v. Atlantic Richfield Co., 493 F.2d 292 (3d Cir. 1974) (Merola I); Merola v. Atlantic Richfield Co., 515 F.2d 165 (3d Cir. 1975) (Merola II); Prandini v. National Tea Co., 557 F.2d 1015 (3d Cir. 1977) (Prandini I); Prandini v. National Tea Co., 585 F.2d 47 (3d Cir. 1978) (Prandini II); Rodriguez v. Taylor, 569 F.2d 1231 (3d Cir. 1977), cert. denied, 436 U.S. 913, 56 L. Ed. 2d 414, 98 S. Ct. 2254 (1978); Hughes v. Repko, 578 F.2d 483 (3d Cir. 1978); Baughman v. Wilson Freight Forwarding Co., 583 F.2d 1208 (1978) and Walker v. Robbins Hose Co. No. 1, Inc., 622 F.2d 692 (3d Cir. 1980). This framework requires that the court make a determination of the number of hours reasonably necessary to perform the legal services for which compensation is sought. Hughes, 578 F.2d at 487. The reasonable number of hours is then multiplied by a reasonable hourly rate for the attorney providing the services, the latter being based on the court's determination of the attorney's reputation, status and type of activity for which the attorney is seeking compensation. Lindy I, 487 F.2d at 167. The sum of the two numbers is the "lodestar" which can then be adjusted upward or downward based on the contingency of success, and the quality of an attorney's work. In all instances plaintiffs have the burden of establishing entitlement to the award claimed and any adjustment to the "lodestar." Hensley v. Eckerhart, 461 U.S. 424, 103 S. Ct. 1933, 76 L. Ed. 2d 40, 51 U.S.L.W. 4552 (1983); Lindy II, 540 F.2d at 117.


 At the outset it should be noted that unlike other cases where attorneys' fees have been awarded, this case was not one where the parties filed suit, out of which a decision was rendered and the parties then went their separate ways in obedience to that decision. This case has required constant monitoring of the consent decree both by the court and plaintiffs in order to ensure compliance by defendants with both the letter and spirit of the decree as well as to protect the plaintiffs' and the public's rights under the decree.

 During the litigation and up until the present day, there has existed an intense adversarial atmosphere among all concerned parties. *fn2" The defendants' presence has constantly been dominated by either a policy or an attitude that has tried to prohibit or delay the implementation of the I/M program in response to which the plaintiffs have constantly held fast to their position, without being totally inflexible. Additionally, plaintiffs have been required to partake in activities which, while not directly required under the consent decree, were sufficiently related to its goals and the ongoing litigation that such efforts should, and will be compensated for in some reasonable measure.

  In their petition for attorneys' fees and costs, plaintiffs have divided the requests for compensable hours into nine phases, each phase relating to a different aspect of the litigation. In their response opposing the fee petition, defendants have made specific objections to each phase as well as general objections which pertain to all phases. The court will address the general objections in this section and any specific objections which warrant consideration in the discussion of the compensable hours of each phase.

 (A) Unsuccessful Claims

 Defendants assert that plaintiffs should not be compensated for aspects of this litigation on which plaintiffs were unsuccessful. This argument must be rejected. For this court to itemize each motion, request or claim that has been presented in this complex and prolonged litigation and determine whether plaintiffs were "successful" would be unnecessary as well as impossible. Such an analysis is not required where, as here, plaintiffs have clearly prevailed in attaining what they sought and what would not have occurred without their efforts. This determination follows the recent Supreme Court case of Hensley v. Eckerhart, 461 U.S. 424, 103 S. Ct. 1933, 76 L. Ed. 2d 40, 51 U.S.L.W. 4552 (1983). The issue before the Court in Hensley was whether a partially prevailing plaintiff could recover, under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, an attorney's fee for legal services on unsuccessful claims. The Court stated that where a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorney's fee reduced simply because the district court did not adopt each contention raised by plaintiff. Hensley, 461 U.S. 424, 51 U.S.L.W. at 4556. There being no doubt that plaintiffs have won substantial relief in this court, *fn3" this court refuses to piecemeal the individual motions and claims which were presented during the litigation.

 (B) James S. Lanard

 a) Contemporaneous Records

 Defendants oppose any award for work done by James Lanard on the grounds that: 1) Mr. Lanard failed to keep contemporaneous time records for much of the period involved; and 2) Mr. Lanard's attempt to reconstruct time records is a sham. While contemporaneous time records are the most desirable way of proving time spent, such is not the only way. Although mere estimates of time are not acceptable, an allowance of attorney's fees may be based on a reconstruction, provided that the records are substantially reconstructed and are reasonably accurate. Lindy II, 540 F.2d at 109.

 Although all other attorneys who worked on this case have submitted time cards for the work they did, there are certain periods during the litigation when Mr. Lanard failed to keep time cards. For such periods, as more specifically set forth in the respective phases, Mr. Lanard has attempted to reconstruct the time spent through reference to notations on his calendar, his notes, specific events related to the case, telephone bills, time sheets and memos drafted with regard to the amount of time spent on this matter. The court, after examining the record in this case and comparing such with Mr. Lanard's requests, is satisfied that the reconstruction was, for the most part, carefully and accurately done. Lindy II, 540 F.2d at 109. However, since some of Mr. Lanard's hours are based on reconstruction, the court must require more from Mr. Lanard than would normally be required from an attorney who has submitted contemporaneous time cards. For this reason, time requested by Mr. Lanard which is based on either: 1) time sheets which do not include specific activity but merely follow the chronological history of the case; or 2) on memos drafted for the purpose of relating the time spent, will be denied. The court finds that for such periods Mr. Lanard makes no more than general allegations as to the type of work he has done, failing to meet the specificity which is required in fee petitions.

 b) Employee of One of the Plaintiffs

 Defendants also oppose any award for Mr. Lanard's work on the ground that he was Executive Director of DVCCCA during the litigation. Defendants assert that where a client engages an attorney, the client must aid the attorney but cannot collect attorney fees. Since Mr. Lanard was an officer of DVCCCA, one of the plaintiffs, defendants contend that his hours as an attorney should not be the basis of any award.

 While the general rule may be that an attorney who acts for himself is not entitled to a counsel fee against his adversary, see Picking v. Pennsylvania R.R. Co., 11 F.R.D. 71 (M.D. Pa. 1951), general rules do not apply in this case. For much of this litigation Mr. Lanard was the only individual working on a particular aspect of the case. Additionally, Mr. Lanard performed a large part of all the activity for which plaintiffs now seek compensation. To deny any award of attorney fees based on Mr. Lanard's activities would not be equitable under the circumstances of this case. *fn4"

 (C) Inability to Comply

 Defendants assert throughout their response to plaintiffs' fee petition that they should not be responsible for fees incurred by plaintiffs if the fees were generated in response to activities of governmental branches, other than the executive branch, which impeded implementation of the I/M program. However, as the court of appeals has stated, not only was the executive branch of the Commonwealth bound by the consent decree but all branches were so bound. 678 F.2d 470, 475, cert. denied, 459 U.S. 969, 103 S. Ct. 298, 74 L. Ed. 2d 280 (1982). Accordingly, there being no distinction among the branches as to being bound by the decree, there will be no distinction as to the cause of fees incurred by plaintiffs in defending their rights under the consent decree.

 (D) Multiple Attendance at Hearings

 Defendants contend that if plaintiffs receive any award, it should not include time spent by an attorney at a hearing unless that attorney was the one who presented plaintiffs' position at the hearing. The court agrees.

 While it is true that more than one attorney has worked on plaintiffs' case, at all times during the hearings only one attorney spoke on behalf of the plaintiffs. While plaintiffs contend that the presence of the other attorneys working on the case was necessary for an understanding of the case, the court is quite sure that if the arguing attorney was competent enough to argue the case, he was competent enough to explain the events of a hearing to his colleagues. Mere attendance in the courtroom by attorneys who were not the principal advocates for the cause is not entitled to compensation.

 (E) Hourly Rates

 The current fee petition requests hourly rates which increase from year to year. While this court recognizes that attorneys' fees do rise over a period of time and that the period covered by the fee petition spans five years, it is more appropriate in this instance to calculate an average rate for each type of work performed during the five years. See In re Fine Paper Antitrust Litigation, 98 F.R.D. 48, 83 (E.D. Pa. 1983). In arriving at these rates the court has evaluated the status, reputation and experience of the individual attorneys who performed the activity. The attorneys who performed tasks that required no significant legal ability will not be compensated at high hourly rates just as attorneys who performed clerical or administrative tasks will not be compensated for performing legal tasks. With that in mind, the reasonable average hourly rate for work which this court finds to be the most difficult will be $100.00. For work this court finds could have been done by an attorney working at the associate level, an average hourly rate of $65.00 will be applied. For work associated with legal work but which required little or no legal ability, the court will grant an average hourly rate of $25.00.


 (A) Phase I -- Failure of Commonwealth to Comply with the Consent Decree of August 29, 1978

 Pursuant to the consent decree of August 29, 1978, the Commonwealth was to commence the I/M program by August 1, 1980. One of the prerequisites for commencement was the publishing, by the Commonwealth, of proposed regulations for the program. Publication was to have been completed by July 1, 1979. The Commonwealth having failed to comply with this requirement, DVCCCA moved to find the Commonwealth in violation of the decree on July 30, 1979. Prior to a hearing before this court on September 20, 1979, at which a new implementation schedule was established, the regulations were published.

 Defendants contend that plaintiffs should be precluded from recovering any award for this phase due to plaintiffs' bad faith in refusing to agree to a requested three month extension. This court disagrees that plaintiffs' refusal to grant an extension regarding publication of the regulations was in bad faith. Moreover, plaintiffs had every right to proceed in the manner that they did. The consent decree set forth the date before which publication was required and defendants failed to comply. Plaintiffs' actions were appropriate and required in order to protect their rights as set forth in the decree.

 Albert Slap expended 37 hours and Eric Beller expended 6.9 hours in this phase of the case. The court finds that the activities performed by Mr. Slap and Mr. Beller in this phase were reasonably necessary and not excessive or duplicative.

 Mr. Lanard's hours for Phase I work have been reconstructed from his calendar, his notes and specific events related to the case. In this phase, the court finds that Mr. Lanard's reconstruction of hours is specific enough and accurate enough that the hours should be granted. However, because Mr. Lanard's request includes time spent in preparation for the contempt hearing and for attendance at the hearing, the time granted will be reduced from the 29 hours requested to 25 hours. *fn5" These 25 hours were necessary and not excessive for the work performed.

 A reasonable average hourly rate for the activities performed in Phase I by Mr. Slap is $65.00, most of the activities involving telephone calls, meetings and discussions. The same average hourly rate will be applied to the compensable hours of Mr. Beller and Mr. Lanard, since their activities consisted of research, discussions, meetings and submission of comments to the regulations. PHASE I Compensable Hourly Hours Rate Mr. Slap 37 $65 = $2405.00 Mr. Beller 6.9 $65 = $ 448.50 Mr. Lanard 25 $65 = $1625.00 Phase I Lodestar $4478.50


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