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HALDERMAN v. PENNHURST STATE SCH. & HOSP.

August 16, 1995

Terri Lee Halderman, et al.
v.
Pennhurst State School & Hosp., et al.



The opinion of the court was delivered by: BRODERICK

 Broderick, J.

 August 16, 1995

 "A request for attorney's fees should not result in a second major litigation. Ideally of course, litigants will settle the amount of the fee." Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S. Ct. 1933, 1941, 76 L. Ed. 2d 40 (1983). Despite this Court's hope that the parties would heed the Supreme Court's admonition and settle their fee dispute, presently before this Court are the four fee petitions of Plaintiffs Terri Lee Halderman, et al. ("Halderman Plaintiffs") for attorney's fees and expenses from the Commonwealth of Pennsylvania (the "Commonwealth") seeking compensation in the amount of $ 61,656.00 for attorney David Ferleger's work implementing the Court's March 28, 1994 Contempt Order. The Halderman Plaintiffs seek $ 14,388 for the period of May 4, 1994 to August 16, 1994; $ 14,318 for the period of August 17, 1994 to November 27, 1994; $ 15,047 for the period of November 23, 1994 to March 2, 1995; and $ 17,903 for the period of March 2, 1995 to May 9, 1995. The Court will treat these petitions as one request.

 Prior to the hearing on the instant fee petitions, held on June 8, 1995, Mr. Ferleger settled his fees and expenses with the County of Philadelphia, and the minimal compensation he seeks from Delaware and Bucks Counties will be addressed by separate order. (Plaintiffs the Arc, Pennsylvania, et al. (Arc") have also petitioned the Court for attorneys' fees and expenses on behalf of Judith A. Gran and Frank Laski of PILCOP for the period of May 4, 1994 to April 30, 1995. The Court is not now considering this request.)

 Twice during the pendency of these fee petitions, the Court ordered the Commonwealth to pay Halderman Plaintiffs a sixty per cent interim fee award of $ 17,223.60 for the period of May 4, 1994 to November 27, 1994 and $ 9,028.20 for the period of November 23, 1994 to March 2, 1995 (totalling $ 26,251.80). The Court made several, unsuccessful attempts to settle this dispute, making its view that fee litigation is a costly and inefficient use of the parties and the Court's time abundantly clear. Finally, it appearing that further efforts between the parties to reach a compromise would be futile, the Court proceeded with a hearing on June 8, 1995. Although the hearing was scheduled before the Halderman Plaintiffs filed their fourth fee petition seeking compensation for the period of March 2, 1995 to May 9, 1995, both parties agreed that it would be most efficient for the Court to consider this request as well.

 The Commonwealth challenges both the reasonableness of Mr. Ferleger's requested hourly rate of $ 250.00 and the number of hours for which he seeks compensation. The Commonwealth also objects to some of Mr. Ferleger's expenses as excessive and unjustified.

 For the reasons set forth below, the Court has determined that Mr. Ferleger is entitled to an award of $ 55,008.80 for attorney's fees and expenses for the period of May 4, 1994 to May 9, 1995. The Court will deduct from this award the interim fee of $ 26,251.80 previously paid by the Commonwealth, leaving a balance of $ 28,757.00.

 II. DISCUSSION

 A. Calculation of the Lodestar

 As prevailing parties in this litigation, Halderman Plaintiffs are entitled to an award of attorney's fees and expenses under 42 U.S.C. § 1988, which provides that in federal civil rights actions the "court, in its discretion, may allow the prevailing party...a reasonable attorney's fee as part of the costs", see Hensley, 461 U.S. at 426, 103 S. Ct. at 1935, as well as under the Court's "inherent power to reimburse a party for outlays incurred in securing adjudication of contempt." Halderman et al. v. Pennhurst et al., 49 F.3d 939, 941 (3d Cir. 1995). A reasonable fee is one that is adequate to attract competent counsel, but.... [does] not produce windfalls to attorneys." Blum v. Stenson, 465 U.S. 886, 897, 104 S. Ct. 1541, 1548, 79 L. Ed. 2d 891 (1984). Indeed, one of the primary purposes of § 1988 is to encourage able attorneys to bring and vigorously litigate civil rights cases when it might not otherwise be financially feasible for them to do so. In enacting § 1988, Congress recognized that fee awards were an "essential remedy if private citizens are to have a meaningful opportunity to vindicate important Congressional policies. . ." See City of Riverside, et al. v. Rivera, 477 U.S. 561, 578, 106 S. Ct. 2686, 2696, 91 L. Ed. 2d 466 (1986)(plurality opinion) (discussing the rational behind 42 U.S.C. § 1988).

 "The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley, 461 U.S. at 433, 103 S. Ct. at 1939. This calculation is generally known as the lodestar. Pennsylvania v. Delaware Valley Citizens' Council, 478 U.S. 546, 563, 106 S. Ct. 3088, 3097, 92 L. Ed. 2d 439 (1986) (Delaware Valley I); Lindy bros. Builders, Inc., 487 F.2d 161, 168 (3d Cir. 1973) (Lindy I). 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, 106 S. Ct. at 3098, but is "presumed to be the reasonable fee contemplated by § 1988". Blum, 465 U.S. at 896, 104 S. Ct. at 1548.

 The fee petitioner bears the burden of establishing the reasonableness of the request and is required to "submit evidence supporting the hours worked and rates claimed." Rode, et al. v. Dellarciprete, et al., 892 F.2d 1177, 1183 (3d Cir. 1990) (quoting Hensley, 461 U.S. at 433, 103 S. Ct. at 1939). The burden then shifts to the party opposing the fee to demonstrate that the fee is not reasonable, and the Court is not permitted to "decrease a fee award based on factors not raised at all by the adverse party." But once the opposing party has objected, the court has wide discretion to adjust the fees in light of those objections. Id.

 These hours represent the Commonwealth's share, or just over fifty per cent of the total hours expended. (In the few instances when activities only concerned the Commonwealth, Mr. Ferleger allocated to the Commonwealth 100 per cent of the time expended.) All subsequent references to hourly figures reflect the Commonwealth's share only -- ...


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