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Cunningham v. City of McKeesport

filed: December 12, 1986.

REBECCA L. CUNNINGHAM, AN INDIVIDUAL, APPELLANT
v.
THE CITY OF MCKEESPORT, WILLIAM WEISSERT, SAMUEL R. VIDNOVIC, GERALD F. BOYLE, JOSEPH P. GRAZIANO, JAMES HEATHERINGTON, CHARLES A. SHARBAUGH, NICHOLAS J. SKEZAS, CAROLYN O. YOUNG, AND OMSLAER WRECKING CO., ROBERT CLYDE OMSLAER, T/D/B/A OMSLAER WRECKING COMPANY APPELLEES



On Appeal from the United States District Court for the Western District of Pennsylvania, D.C. Civil No. 81-1434.

Before: Gibbons, Becker, Circuit Judges and Katz,*fn* District Judge.

Author: Becker

Opinion SUR REMAND FROM UNITED STATES SUPREME COURT

BECKER, Circuit Judge.

The Supreme Court has remanded this case to us for further consideration in light of its opinion in City of Riverside v. Rivera, 477 U.S. 561, 106 S. Ct. 2686, 91 L. Ed. 2d 466 (1986). this opinion reflects that further consideration. For the reasons that follow, we believe that the Supreme Court's plurality opinion does not undermine our original panel opinion, which is reported at 753 F.2d 262 (3d Cir. 1985). Therefore we will reinstate our previous order reversing the judgment of the district court and will remand the case for further proceedings consistent with the panel opinion.

I.

This is a civil rights case brought under 42 U.S.C. § 1983, in which the plaintiff sought recovery against the City of McKeesport and a number of its officials after a house and garage that she owned were demolished by the city without prior notice. The defendants contested both liability and damages. After extensive discovery and a three-day jury trial, the plaintiff won a verdict of $35,000, which the district court reduced to $17,000. Plaintiff thereupon sought a counsel fee award in the sum of $35,887.50, and the claim that her counsel had devoted 358 hours in connection with the case, including 247.75 hours in pretrial discovery. She asserted that the services rendered were worth $100 to $125 per hour depending on the particular attorney who performed the services. The district court disallowed all but 219 hours, and valued the services at $50 per hour. This resulted in a lodestar of $10,950. The court then applied a 50% negative multiplier to the lodestar and approved an additional $400 in attorney's fees for prosecution of the fee petition, arriving at a total award of $5,875.

Holding that these reductions were improper, this panel reversed and remanded for recalculation of the fee in accordance with the panel's decision, see 753 F.2d 262 (3d Cir. 1985). We reasoned first that the court had no basis for reducing the rate or disallowing those hours of which the court had no personal knowledge. The claimed hours and billing were uncontradicted in the record and defendants had not challenged their reasonableness. We also held that the negative multiplier was improper because the grounds assigned by the district court for applying the negative multiplier were not cognizable in law, see infra at p. 10-11. Significantly, the defendants did not assert either before the district court or before this court the contention that the claimed counsel fee was disproportionate to the damages. However, several members of this court expressed concern over the disproportion between the damage award and the fee that would result from the panel's decision. See Statement by Circuit Judge Adams Sur Denial of Petition for Rehearing, 753 F.2d at 269.

The defendants petitioned the Supreme Court for a writ of certiorari. Notwithstanding the clearly articulated concern about proportionality in Judge Adams' statement, the defendants petition for certiorari did not articulate a proportionality claim.*fn1 Nonetheless, the Supreme Court plainly understood proportionality to be the central question posed by the petition, see City of Riverside v. Rivera, 473 U.S. 1315, 106 S. Ct. 5, 7, 87 L. Ed. 2d 683 (1985) (opinion of Rehnquist, J., sur grant for a stay of Court of Appeals mandate) (identifying proportionality as an issue in City of McKeesport and concluding "that it is likely that certiorari will be granted in either this case or City of McKeesport, or both."). Faithful to Justice Rehnquist's prediction, the Supreme Court did grant certiorari on this issue -- in the City of Riverside case.

In City of Riverside, eight Chicano persons filed a civil rights action against the city and 30 of its individual police officers who had broken up a party and arrested and imprisoned them. The plaintiffs, alleging that the conduct of defendants displayed a discriminatory animus, asserted violations of the plaintiff's first, fourth and fourteenth Amendment rights. The district court granted summary judgment in favor of 17 of the individual police officers, and the case proceeded to trial against the remaining defendants. The jury returned a verdict against the city and five individual officers, awarding plaintiffs damages in the amount of $33,350.

Plaintiffs thereafter sought attorney's fees pursuant to the Civil Rights Attorney Fees Award Act, 42 U.S.C. § 1988, in the amount of $245,456.25, for 1,946.75 hours at the rate of $125. The district court granted fees in the lodestar amount requested, and the Court of Appeals for the Ninth Circuit affirmed. 679 F.2d 795 (9th Cir. 1982). The Supreme Court, 461 U.S. 452, granted certiorari, vacated the judgment, and remanded the case for reconsideration in light of Hensley v. Eckerhart, 461 U.S. 424, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983). Following remand, the district court reaffirmed its award in the amount of the requested lodestar, and again the Ninth Circuit affirmed. 763 F.2d 1580 (9th Cir. 1985). Defendants again sought certiorari and the Supreme Court granted the writ to determine the sole issue of whether "the district court's fee award was not 'reasonable' within the meaning of § 1988, because it was disproportionate to the amount of damages recovered by respondents". 474 U.S. 917, 106 S. Ct. 244, 88 L. Ed. 2d 253 (1985).

In his opinion announcing the judgment of the court, Justice Brennan considered both the legislative history as well as the purposes for the enactment of 42 U.S.C. § 1988, and determined that proportionality was not a requirement:

A rule of proportionality would make it difficult, if not impossible, for individuals with meritorious civil rights claims but relatively small potential damages to obtain redress from the courts. This is totally inconsistent with the Congress' purpose of enacting § 1988. Congress recognized that private-sector fee arrangements were inadequate to ensure sufficiently vigorous enforcement of civil rights. In order to ensure that lawyers would be willing to represent persons with legitimate civil ...


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