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HALDERMAN v. PENNHURST STATE SCH. & HOSP.

November 27, 1989

TERRI LEE HALDERMAN, a retarded citizen, by her mother and legal guardian, Winifred Halderman, Plaintiff,
v.
PENNHURST STATE SCHOOL AND HOSPITAL; DEPARTMENT OF PUBLIC WELFARE; HELEN WOHLGEMUTH, Secretary of the Department of Public Welfare; C. DUANE YOUNGBERG, Superintendent, Pennhurst State School and Hospital; ROBERT SMILOVITZ, Assistant Superintendent, Pennhurst State School and Hospital; MARGARET GREEN, BETTY UPHOLD, ALICE BARTON, PATRICIA LYTTLE, J. NAGLE, P.E. KLICK, MARY SHANTA, DR. HEDLEY, DR. PAROCCA, HELEN FRANCIS, MS. WEILER, Staff, agents and employees of Pennhurst State School and Hospital; JOHN DOCTOR, JANE NURSE, JACK AIDE, JILL THERAPIST, RICHARD ROE, and JANE ROE, unknown and unnamed staff, employees and agents of Pennhurst State School and Hospital, all individuals sued in their official and individual capacities, Defendants



The opinion of the court was delivered by: BRODERICK

 RAYMOND J. BRODERICK, UNITED STATES DISTRICT JUDGE

 Plaintiffs' counsel again move for an award of attorneys' fees for the monitoring and enforcement of the Pennhurst settlement agreement, the terms of which are described in Halderman v. Pennhurst State School & Hosp., 610 F. Supp. 1221 (E.D. Pa. 1985). They seek $ 41,925 in compensation for the period commencing July 1, 1986 and ending July 27, 1987 against defendants Bucks, Chester, Delaware, and Montgomery Counties. Counsel's first petition, which requested $ 37,534.44, was dismissed by Order on November 24, 1987 because it did not identify with sufficient particularity what amounts were sought against each defendant County. Although defendants did oppose the initial request for fees, they have not filed objections to this renewed motion.

 I.

 Section 1988 of Title 42 states that in certain civil rights proceedings the court, "in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee." Several courts have held that the reasonable post-judgment monitoring of consent decrees or settlements is compensable under section 1988, particularly when defendants, as here, see, e.g., Halderman v. Pennhurst State School & Hosp., 1989 U.S. Dist. LEXIS 10147, No. 74-1345, slip op. (E.D. Pa. Aug. 28, 1989), have displayed hostility toward or disregard for the terms of the agreement. See Brewster v. Dukakis, 786 F.2d 16, 18-19 (1st Cir. 1986); Delaware Valley Citizens' Council for Clean Air v. Pennsylvania, 762 F.2d 272, 276-77 (3d Cir. 1985), aff'd in part and rev'd in part, 478 U.S. 546, 106 S. Ct. 3088, 92 L. Ed. 2d 439 (1986); Garrity v. Sununu, 752 F.2d 727, 738 (1st Cir. 1984); Northcross v. Board of Education, 611 F.2d 624, 637 (6th Cir. 1979), cert. denied, 447 U.S. 911, 100 S. Ct. 2999, 64 L. Ed. 2d 862 (1980); Bond v. Stanton, 630 F.2d 1231, 1233 (7th Cir. 1980); Miller v. Carson, 628 F.2d 346, 348 (5th Cir. 1980); Imprisoned Citizens Union v. Shapp, 1988 U.S. Dist. LEXIS 5181, No. 70-3054, slip op. (E.D. Pa. June 8, 1988). Moreover, when the decree or settlement assigns various future responsibilities to the parties, compensation for executing its terms are permissible, unless, of course, the compact forbids it. See generally In re Burlington Northern, Inc. Employment Practices Litigation, 832 F.2d 422, 427 (7th Cir. 1987).

 The Pennhurst settlement agreement implicitly contemplates that plaintiffs' attorneys will perform a monitoring function. The agreement not only requires defendants to assemble implementation reports concerning class members and distribute them to class counsel, it also provides plaintiffs with remedies in the event that defendants fail to adhere its dictates. See Final Settlement Agreement paras. 9(e), 18 & 21; id., app. A paras. A5(b)-(c) & A8; id., app. B para. B9; Amendment to Final Settlement Agreement, Dec. 2, 1986, paras. 5 & 7-8. For example, paragraph 18 permits class members to institute enforcement proceedings if they ascertain "that any party to this Final Settlement Agreement is failing adequately to discharge its obligations hereunder." Authority to acquire and review data necessary to determine the adequacy of each defendant's compliance obviously inheres within this provision, for without that authority the rights delineated in the agreement would be rendered meaningless.

 II.

 The benchmark of an award under fee shifting statutes such as section 1988 is that the costs assessed against the non-prevailing party be "reasonable." See Pennsylvania v. Delaware Valley Citizens' Council for Clean Air (Delaware Valley I), 478 U.S. 546, 562, 92 L. Ed. 2d 439, 106 S. Ct. 3088 (1986). The initial estimate of fees, or lodestar, is calculated by multiplying the number of hours reasonably devoted to the litigation by a reasonable hourly rate for each attorney involved. Blum v. Stenson, 465 U.S. 886, 888, 79 L. Ed. 2d 891, 104 S. Ct. 1541 (1984); see also Blanchard v. Bergeron, 489 U.S. 87, 109 S. Ct. 939, 944-45, 103 L. Ed. 2d 67 (1989). The Supreme Court has emphasized that the resulting figure is "more than a mere 'rough guess'" of the final award. Delaware Valley I, 478 U.S. at 564. Rather, it is "' presumed to be the reasonable fee' to which counsel is entitled." Id. (quoting Blum, 465 U.S. at 897). Although the fee award should be adequate enough to attract competent counsel, which in turn enlarges "the likelihood that the congressional policy of redressing public interest claims will be vindicated," Student Public Interest Research Group v. AT & T Bell Laboratories, 842 F.2d 1436, 1449 (3d Cir. 1988); see also House Comm. on the Judiciary, The Civil Rights Attorney's Fees Award Act of 1976, H.R. Rep. No. 1558, 94th Cong., 2d Sess. 9 (1976), it should not constitute an undue windfall. Delaware Valley I, 478 U.S. at 565. As a result, the district court must exclude from the lodestar calculation those hours not "reasonably expended" on the litigation, Hensley v. Eckerhart, 461 U.S. 424, 434, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983), and may apply either a contingency or quality enhancement only in rare circumstances. Pennsylvania v. Delaware Valley Citizens' Council for Clean Air (Delaware Valley II), 483 U.S. 711, 97 L. Ed. 2d 585, 107 S. Ct. 3078 (1987); Delaware Valley I, 478 U.S. at 565; Blum v. Witco Chem. Corp. (Blum II), 888 F.2d 975 (3d Cir. 1989).

 A. Reasonable Hours Plaintiffs' counsel seek reimbursement for the following expenditure of hours: David Ferleger, Esq. Against Bucks County 1.40 Against Chester County 1.40 Against Delaware County 2.90 Against Montgomery County .30 Against All Defendants Collectively 19.40 Barbara Hoffman, Esq. Against Bucks County .10 Against Delaware County .10 Against All Defendants Collectively 22.20 Barbara Sheehan, Law Clerk Against All Defendants Collectively 35.10

 Although the Count finds on the basis of the record that reimbursement for plaintiffs' counsel's monitoring efforts is justified because those services were related reasonably to the goals of the settlement, see Delaware Valley, 762 F.2d at 276; Imprisoned Citizens Union, supra, the Court also concludes that some modification of plaintiffs' requested hours is in order. First, counsel is entitled as a general proposition to recover for time spent preparing attorneys' fees requests, see Institutionalized Juveniles v. Secretary of Public Welfare, 758 F.2d 897, 924 (3d Cir. 1985), but the Court may not award fees for time devoted to unsuccessful fee claims just as it typically may not grant compensation for time expended on unsuccessful claims asserted in the litigation proper. See Hensley, 461 U.S. at 435, 440; Durett v. Cohen, 790 F.2d 360, 363 (3d Cir. 1986); Proffitt v. Municipal Auth. of Morrisville, 716 F. Supp. 845, 850 (E.D. Pa. 1989). Therefore, we will not allow the 2.5 hours that Ms. Sheehan spent on the 1987 fee petition which the Court dismissed as inadequate, see Hensley, 461 U.S. at 436-37, especially since that time is vaguely characterized.

 Second, plaintiffs' counsel submit that because it is not certain that any particular county will disgorge payment for the fees and costs attributable to it, the Court should require each defendant County to pay the full cost for all time spent against the Pennhurst defendants collectively. For instance, assuming that David Ferleger engaged in 20 hours of work directed against all defendants generally and that he charges $ 200 per hour, by counsel's logic the Court should order each and every fee defendant to pay $ 4000, for a total recovery of $ 16,000. Adjustments for excess payments, class attorneys' argument continues, can be made later. This is inappropriate.

 The Court need not pause to discern whether the County defendants are in fact jointly and severally liable for fees. See Dean v. Gladney, 621 F.2d 1331, 1340 (5th Cir. 1980) (articulating standards), cert. denied, 450 U.S. 983, 101 S. Ct. 1521, 67 L. Ed. 2d 819 (1981); Shakman v. Democratic Org. of Cook Co., 634 F. Supp. 895, 904 (N.D.Ill. 1986) (same); Vulcan Soc. of Westchester Co. v. Fire Dep't of White Plains, 533 F. Supp. 1054, 1064 (S.D.N.Y. 1982). Even if they are, that conclusion does not require the Court to assign joint and several liability or to permit duplicative payments. As the Eleventh Circuit has held,

 
In addition to having discretion on when to apportion fees, district courts also have wide discretion on how to divide liability for fees. . . . Most simply, in cases with roughly equal wrongdoers in which the court does not want to impose joint and several liability for ...

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