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HALDERMAN v. PENNHURST STATE SCH.

May 25, 1994

TERRI LEE HALDERMAN, et al.
v.
PENNHURST STATE SCHOOL AND HOSPITAL, et al.



The opinion of the court was delivered by: RAYMOND J. BRODERICK

 Broderick, J.

 Presently before the Court are petitions for fees and expenses on behalf of attorneys for the plaintiff class in connection with contempt proceedings brought against defendants County of Philadelphia ("County") and Commonwealth of Pennsylvania ("Commonwealth") for their violations of this Court's Order of April 5, 1985 ("Court Decree"). See Halderman, et al. v. Pennhurst State Sch. & Hosp., et al., 610 F. Supp. 1221 (E.D. Pa. 1985) ("Halderman I ") for the terms of the Court Decree. Attorney David Ferleger, who represents Halderman plaintiffs, originally petitioned the Court for fees and expenses in the amount of $ 363,889, but he settled with defendants in the amount of $ 260,000. The Court approved the settlement agreement between defendants and Ferleger on May 6, 1994. That Agreement calls for the Court to decide the issue of allocation of Ferleger's fees as between the two defendants. Attorneys for Association of Retarded Citizens of Pennsylvania ("ARC"), Judith Gran, Frank J. Laski and Barbara Ransom did not settle their fees with defendants; they seek a total of $ 554,842.01 in compensation for the period April 7, 1987 through April 27, 1994. Both defendants filed objections to ARC's petition for fees and expenses. Thus, in addition to the issue of allocation, the Court must decide the reasonableness of ARC's attorney fees.

 I.

 The fees and expenses of ARC's attorneys were incurred in connection with the contempt motion filed against the County and Commonwealth by the plaintiff class in 1987. The Court Decree called for the defendants to provide community living arrangements, minimally adequate habilitation, and other services to the Pennhurst class, who are mentally retarded persons. The contempt proceedings were stayed in August 1991 when the parties entered into an agreement to settle the matter. That agreement called for the parties to work together to develop a plan to "improve the quality and management of the Philadelphia service system for all those [mentally retarded] receiving services, including, but not limited to, [Pennhurst ] class members." Settlement Agt., Aug. 15, 1991. This effort became known as the "Community Collaborative." The Community Collaborative was no less than a major effort to restructure the entire mental retardation system within the County of Philadelphia. Unfortunately, after almost two years of meetings and negotiations, the parties were unable to devise a plan that was satisfactory to the plaintiff class. Therefore, in August 1993 the plaintiffs notified the Court that they were unable to reach a satisfactory settlement with the defendants, and they asked the Court to schedule a hearing on their 1987 contempt motion.

 The hearing was held over a nine-day period in December 1993. The evidence presented at the hearing overwhelmingly demonstrated that the defendants had engaged in a sustained willful effort to disregard the Court Decree by failing to provide community living arrangements and minimally adequate habilitation to a majority of the class members. Halderman, et al. v. Pennhurst State Sch. & Hosp., 154 F.R.D. 594 (E.D. Pa. 1994) ("Halderman III "). Accordingly, the Court held both the County and the Commonwealth in contempt and ordered that they both comply with the Court Decree within the times specified in the Order.

 II.

 ARC plaintiffs now seek compensation for the costs and expenses of prosecuting the contempt motion. Plaintiffs believe that they are entitled to such compensation under two theories. The first is that plaintiffs, as prevailing parties in a civil rights action, have the right to recover attorney fees and costs pursuant to 42 U.S.C. ┬ž 1988. Their second theory is that they are entitled to recover such costs under the Court's inherent equitable power to punish contempt. As set forth below, the Court has determined that plaintiffs are entitled to recover their costs of litigating this matter under both theories.

 Under section 1988, costs assessed must be "reasonable." Pennsylvania v. Delaware Valley Citizens' Council for Clean Air ("Delaware Valley I "), 478 U.S. 546, 562, 106 S. Ct. 3088, 3096, 92 L. Ed. 2d 439 (1986). The estimate of fees, also known as the lodestar, is calculated by multiplying the number of hours reasonably devoted to the litigation by a reasonable hourly rate for each attorney involved in the case. Blum v. Stenson, 465 U.S. 886, 104 S. Ct. 1541, 1543, 79 L. Ed. 2d 891 (1984); see also Blanchard v. Bergeron, 489 U.S. 87, 94-95, 109 S. Ct. 939, 944-45, 103 L. Ed. 2d 67 (1989); Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir.1990). In Delaware Valley I, the United States Supreme Court stated that the resulting figure "'is presumed to be the reasonable fee' to which counsel is entitled." Id. at 564, 106 S. Ct. at 3098 (citation omitted) (emphasis in original). Further, while the award must be large enough to attract competent counsel, it must not constitute an undue windfall. Id. at 565, 106 S. Ct. at 3098 (citations omitted). Consequently, a district court must exclude from the lodestar calculation any hours not "reasonably expended" on the litigation, Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S. Ct. 1933, 1939, 76 L. Ed. 2d 40 (1983). According to the United States Court of Appeals for the Third Circuit, "hours are not reasonably expended if they are excessive, redundant, or otherwise unnecessary." Dellarciprete, 892 F.2d at 1183.

 The burden of establishing the reasonableness of attorneys' fees falls on the party requesting the fees. Id. To meet this burden, the fee petitioner is required to "submit evidence supporting the hours worked and rates claimed." Id. (citing Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 1939, 76 L. Ed. 2d 40 (1983)). The burden then shifts to the party opposing the fee to demonstrate that the fee is not reasonable. Id. (citing Bell v. United Princeton Properties, Inc., 884 F.2d 713 (3d Cir.1989)). The court is not permitted, however, to "decrease a fee award based on factors not raised at all by the adverse party." Id. (citations omitted). Once the opposing party has objected, the court has wide discretion to adjust the fees in light of those objections. Id. (citation omitted).

 In this case, the Court held a hearing on May 6, 1994 for the purpose of hearing objections to the fees and to determine the reasonableness of such fees. The Court's findings and conclusions are as follows.

 A. Reasonable Attorney Hours Counsel for ARC seek reimbursement against both defendants collectively for the following expenditure of hours: Judy Gran, Esq. 1993.5 Barbara Ransom, Esq. 242.0 Frank Laski, Esq. 192.5 Morgan Harting, Law Clerk 200.05 Total 2628.05

 On the basis of the record, the Court finds that some modification of the foregoing hours is necessary. First, plaintiffs are only entitled to compensation that is reasonably related to the litigation. Blum, 465 U.S. at 888, 104 S. Ct. at 1543. Defendants point out, and plaintiffs concede, that Judy Gran and Frank Laski devoted 356.8 hours (337.7 hours for Ms. Gran and 19.1 for Mr. Laski) to work related to the Community Collaborative. Defendants object to these hours on the basis that most of this work was not reasonably related to the contempt litigation. The Court agrees with the defendants on this point. The Collaborative's goal was to redesign the entire system of governmental delivery of services to the mentally retarded in Philadelphia. That population numbers in the thousands. This class action litigation, however, only pertains to approximately 600 mentally retarded citizens of Philadelphia. While the Court lauds the Collaborative's efforts to streamline the delivery of services to all mentally retarded citizens in the City of Philadelphia, this Court's jurisdiction only extends to the approximately 600 individuals who were certified as members of the plaintiff class. Thus, ARC's counsel expended a large number of hours in search of a remedy that pertained to thousands of individuals who were not the subject of this suit.

 Furthermore, several witnesses testified at the hearing that Judy Gran, who incurred the lion's share of the disputed hours, stated to them on several occasions that she was participating in the Collaborative in the capacity of a "civilian" and/or "interested party" and not as an attorney for class members. Ms. Gran's statements are further evidence that the hours spent on work related to the Collaborative were not reasonably related to the contempt litigation.

 Plaintiffs' counsel argues, on the other hand, that such time is compensable pursuant to counsels' monitoring efforts. As stated in prior opinions of this Court, "the Pennhurst settlement agreement implicitly contemplates that plaintiffs' attorneys will perform monitoring functions." Halderman v. Pennhurst, 725 F. Supp. 861, 863 (E.D.Pa. 1989) ("Halderman II "). "Moreover, when the decree or settlement assigns various future responsibilities to the parties, compensation for executing its terms is permissible, unless, of course, the compact forbids it." Id. (citations omitted). However, even under plaintiffs' monitoring theory, the hours expended must be reasonably related to monitoring that affects class members. Therefore, this Court will only award a reasonable amount of hours for monitoring of the settlement agreement and the work of the Community Collaborative as it affected the approximately 600 class members. The Court finds that a reasonable amount of time for such activity would be two hours per month for Ms. Gran for the period during which the settlement agreement was in effect and the Collaborative was functioning. A review of the records indicates that this time period commenced in May 1991 and ended in June 1993. Therefore, for these twenty-four (24) months, counsel Judy Gran shall be entitled to recover for forty-eight (48) hours expended. The hours spent by Mr. Laski were not required for purposes of monitoring of the settlement agreement; therefore, he shall not be awarded any hours for this activity. In sum, as to hours expended on the Community Collaborative, 19.1 hours will be deducted from Mr. Laski's hours and 289.7 hours will be deducted from Ms. Gran's hours in the final award.

 Defendants also object to seventy (70) hours (67.5 hours for Ms. Gran and 2.5 hours for Mr. Laski) for work related to writing press releases, speaking with reporters and otherwise publicizing the contempt motion. This litigation concerns an important public issue, i.e., the habilitation of mentally retarded citizens of Philadelphia. In such a case, the Court is keenly aware of the importance of having counsel provide the media with correct information. Nevertheless, counsel for parties involved in litigation affecting the public interest are entitled only to a reasonable amount of time for such activity. In applying this "reasonableness" standard, the Court finds that Ms. Gran should be compensated for thirty-five ...


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