Halderman Ex Rel. Halderman v. Pennhurst State School & Hospital

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
3-2-1995
Halderman v Pennhurst
Precedential or Non-Precedential:
Docket 94-1674
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Recommended Citation
"Halderman v Pennhurst" (1995). 1995 Decisions. Paper 66.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/66
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 94-1674
____________
TERRI LEE HALDERMAN, a retarded citizen, by her mother
and guardian, Winifred Halderman, LARRY TAYLOR, a
retarded citizen, by his parents and guardians, Elmer
and Doris Taylor; KENNY TAYLOR, a minor, a retarded
citizen, by his parents and guardians, Elmer and Doris
Taylor; ROBERT SOBETSKY, a minor, a retarded citizen,
by his parents and guardians, Frank and Angela
Sobetsky; THERESA SOBETSKY, a retarded citizen, by her
parents and guardians, Frank and Angela Sobetsky; NANCY
BETH BOWMAN, a retarded citizen, by her parents and
guardians, Mr. and Ms. Horace Bowman; LINDA TAUB, a
retarded citizen, by her parents and guardians, Mr. and
Mrs. Allen Taub; GEORGE SOROTOS, a minor, a retarded
citizen, by his foster parents, William and Marion
Caranfa, all of the above individually and on behalf of
all others similarly situated; THE PARENTS AND FAMILY
ASSOCIATION OF PENNHURST; PENNSYLVANIA ASSOCIATION FOR
RETARDED CITIZENS; JO SUZANNE MOSKOWITZ, a minor, by
her parents and next friends, Leonard and Nancy
Moskowitz; ROBERT HIGHT, a minor, by his parents and
next friends, John and Jeanne Hight; DAVID PREUSCH, a
minor by his parents and next friends, Calvin and
Elizabeth Preusch, and CHARLES DiNOLFI, on behalf of
themselves and all other similarly situated,
Plaintiffs-Intervenors
UNITED STATES OF AMERICA,
Plaintiff-Intervenor
v.
PENNHURST STATE SCHOOL & HOSPITAL; DEPARTMENT OF PUBLIC
WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA; FRANK S.
BEAL, Secretary of the Department of Public Welfare;
STANLEY MEYERS, Deputy Secretary for Mental
Retardation, Department of Public Welfare; HELENE
WOHLGEMUTH, Former Secretary, Department of Public
Welfare; ALDO COLAUTI, Executive Deputy Secretary,
Department of Public Welfare; WILBUR HOBBS, Deputy
Secretary for Southeastern Region, Department of Public
Welfare; G. DUANE YOUNGBERG, Superintendent, Pennhurst
State School & Hospital; ROBERT SMILOVITZ, Former
Assistant Superintendent Pennhurst State School &
Hospital; JOSEPH FOSTER, Assistant Superintendent,
Pennhurst State School & Hospital; MARGARET GREEN,
BETTY UPHOLD, ALICE BARTON, P.E. KILICK, DR. PAROCCA,
HELEN FRANCIS, employees and agents of Pennhurst State
School & Hospital; JOHN DOCTOR, JAMES NURSE, JANE AIDE,
JILL THERAPIST, RICHARD ROE, JANE DOE, unknown and
unnamed staff, employees and agents of Pennhurst State
School & Hospital, each individual Defendant sued
individually and in his or her official capacity;
GEORGE HETZGER, JOSEPH CATANIA, and ROGER BOWERS,
Commissioners for Bucks County; ROBERT STREBL, EARL
BAKER, and LEO McDERMOTT, Commissioners for Chester
County; FAITH R. WHITTLESEY, CHARLES KELLER, and
WILLIAM SPINGLER, Commissioners for Delaware County; A.
RUSSELL PARKHOUSE, FRANK W. JENKINS and LAWRENCE H.
CURRY, Commissioners for Montgomery County; MAYOR FRANK
L. RIZZO and THE CITY COUNCIL OF PHILADELPHIA, as
Authorities for Philadelphia County; PETER
BODENHEIMBER, Mental Health/Mental Retardation
Administration for Bucks County; WILLIAM A. McKENDRY,
Mental Health/Mental Retardation Administrator for
Chester County; P. PAUL BURRICHTER, Mental
Health/Mental Retardation Administrator for Delaware
County; HERMANN A. ROTHER, Mental Health/Mental
Retardation Administration for Montgomery County, and
LEON SOFFER, Mental Health/Mental Retardation
Administration for Philadelphia County,
Commonwealth of Pennsylvania, Appellant
____________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. No. 74-cv-01345)
____________
Argued December 19, 1994
Before: GREENBERG, SAROKIN and WEIS, Circuit Judges
Filed March 2, l995
____________
Jerome J. Shestack, Esquire (ARGUED)
Barry M. Klayman, Esquire
WOLF, BLOCK, SCHORR and SOLIS-COHEN
12th Floor Packard Building
15th & Chestnut Streets
Philadelphia, PA 19102-2678
Attorneys for Appellant, Commonwealth of Pennsylvania
Frank J. Laski, Esquire (ARGUED)
Judith A. Gran, Esquire
PUBLIC INTEREST LAW CENTER OF PHILADELPHIA
125 S. 9th Street, Suite 700
Philadelphia, PA 19107
Attorneys for Appellees
____________
OPINION OF THE COURT
____________
WEIS, Circuit Judge.
In this appeal from the inclusion of specific items in
a grant of attorneys' fees and expenses growing out of a contempt
proceeding, we hold that no payment is due for time spent in
public relations efforts. Thus, we will disallow those fees as
well as those for duplicative work. Other claims that were not
supported by evidence at a hearing on fees or that were
improperly inflated because the tasks performed were easily
delegable to personnel with substantially lower hourly rates,
will also be denied.
In 1985, after years of negotiation, the parties
reached a settlement in this suit brought to require appropriate
care for mentally retarded citizens in Pennsylvania. A consent
decree was entered, but it was not long before the controversy
erupted again. In 1987, the plaintiff-class filed a motion to
have the court hold the City of Philadelphia and the Commonwealth
of Pennsylvania in contempt for failing to adhere to the terms of
the consent decree. Extended efforts at settlement resulted in
an agreement in 1991. However, this attempt also failed to
resolve the dispute, and plaintiffs renewed their 1987 motion.
After a hearing in 1993, the district court found the City and
the Commonwealth in contempt in an opinion reported at Halderman
v. Pennhurst State Sch. & Hosp., 154 F.R.D. 594 (E.D. Pa. 1994).
Plaintiffs' counsel then applied for fees and expenses.
After some negotiation, David Ferleger, Esquire, who had
represented the class, agreed to accept $260,000 and that matter
is not at issue. After a hearing, the court awarded fees to the
Association of Retarded Citizens of Pennsylvania for the services
of its counsel, who had also participated in the proceedings on
behalf of plaintiffs. The court directed that the City and the
Commonwealth each pay $222,239.25 to cover the Association's
attorneys' fees and expenses. Halderman v. Pennhurst State Sch.
& Hosp., 855 F. Supp. 733, 746 (E.D. Pa. 1994). Only the
Commonwealth has appealed.
An award of fees and expenses in this case is
permissible under 42 U.S.C. § 1988 and under the court's inherent
power to reimburse a party for outlays incurred in securing an
adjudication of contempt. Robin Woods, Inc. v. Woods, 28 F.3d
396, 400-01 (3d Cir. 1994). The formula for awarding fees in the
contempt context is usually the more generous. In that setting,
the innocent party is entitled to be made whole for the losses it
incurs as the result of the contemnors' violations, including
reasonable attorneys' fees and expenses. Id.; see Chambers v.
Nasco, Inc., 501 U.S. 32, 46 (1991); Alyeska Pipeline Serv. Co.
v. Wilderness Soc'y, 421 U.S. 240, 258 (1975).
The Commonwealth has raised five objections to specific
items included in the district court's computations. We will
discuss them seriatim.
I. PUBLICITY EFFORTS
The Association's counsel sought compensation for
seventy hours of "work related to writing press releases,
speaking with reporters and otherwise publicizing the contempt
motion." The district court observed that the litigation was
over "an important public issue, i.e., the habilitation of
mentally retarded citizens" but reduced the requested number of
hours to 36.5 as being the maximum amount that the Association
could reasonably recover for this activity. The total amount
awarded for publicity efforts was $7,375.00.
In Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169
(4th Cir. 1994), the Court of Appeals rejected a 42 U.S.C. § 1988
claim for fees for public relations efforts "to sway public
opinion and influence State policy-makers to change [the
defendant's police] enforcement policies." Id. at 176. The
Court commented that "[t]he legitimate goals of litigation are
almost always attained in a courtroom, not in the media." Id.
In another § 1988 case, Hart v. Bourque, 798 F.2d 519,
523 (1st Cir. 1986), the Court of Appeals for the First Circuit
approved the disallowance of time "spent on arrangements for
lectures or publications about the case." Similarly, in Greater
Los Angeles Council on Deafness v. Community Television of S.
Cal., 813 F.2d 217, 221 (9th Cir. 1987), the Court of Appeals for
the Ninth Circuit concluded that fees for lobbying and publicity
claimed under the Rehabilitation Act and the Equal Access to
Justice Act were properly disallowed by the trial court.
However, in a Title VII employment case, Davis v. City
& County of San Francisco, 976 F.2d 1536, 1545 (9th Cir. 1992),
vacated in part on other grounds, 984 F.2d 345 (9th Cir. 1993),
the same Court of Appeals affirmed an award for counsel's "time
spent in giving press conferences and performing other public
relations work." The district court had defended the allowance
as a valid effort to obtain the support of elected officials that
was vital to obtaining a consent decree. The Court of Appeals
concluded that because private attorneys perform public relations
work in connection with their representation of private clients,
civil rights attorneys may do so as well. We find the Davis
opinion somewhat inconsistent with the Court's earlier views in
Greater Los Angeles Council on Deafness and are not persuaded by
its reasoning.
The fact that private lawyers may perform tasks other
than legal services for their clients, with their consent and
approval, does not justify foisting off such expenses on an
adversary under the guise of reimbursable legal fees. We are
more impressed with the reasoning in Rum Creek Coal Sales that
the proper forum for litigation is the courtroom, not the media.
It is particularly inappropriate to allow public relations
expenses in the case at hand while it was pending before the
district judge who had approved the consent decree and subsequent
settlement agreement. The allowance of $7,375.00 must,
therefore, be disapproved.
II. FEES FOR ESCORTING EXPERTS
The Association submitted a request of $200 per hour
for lead counsel's time spent accompanying non-testifying experts
on various site visits. In other instances, this function was
carried out by a paralegal at $60 per hour. The district court
concluded that the hours spent were "reasonable and necessary to
the outcome of the contempt litigation."
We have cautioned on a number of occasions that when a
lawyer spends time on tasks that are easily delegable to non-
professional assistance, legal service rates are not applicable.
We cannot condone "the wasteful use of highly skilled and highly
priced talent for matters easily delegable to non-professionals."
Ursic v. Bethlehem Mines, 719 F.2d 670, 677 (3d Cir. 1983);
Prandini v. National Tea Co., 557 F.2d 1015, 1020 (3d Cir. 1977).
Even the use of a paralegal for the work described in
this claim at $60 per hour appears to be questionable. However,
it has not been challenged, and we will not rule on it. In any
event, we are persuaded that a disallowance of $3,780.00, as
suggested by the Commonwealth, should be granted.
III. AWARD OF EXPENSES FOR NON-TESTIFYING EXPERTS
The Association submitted a claim for $13,662.73 in
fees and costs expended in retaining three non-testifying
experts, and $9,040.00 for an additional expert who did testify.
All of the experts purportedly toured class-member sites,
interviewed class members, researched and evaluated records, and
prepared reports. The district court awarded $9,040.00 for the
testifying expert, but allowed only a total of $4,622.73 for the
remaining experts, apparently in the belief that the entire claim
for experts was $13,662.73. Actually, the total claim for
experts, including the one who testified, was $22,702.73.
Approval of the testifying expert's fees in the amount
of $9,040.00 has not been challenged on appeal, and the
Commonwealth objects only to the claim for the three non-
testifying expert witnesses. The district judge found their
participation "indispensable to this case" and, relying on
equitable powers to remedy the contempt rather than on 42 U.S.C.
§ 1988, allowed the $4,622.73 collective sum. We agree that
granting reimbursement fees of this nature would be proper in a
contempt action and, therefore, need not discuss the § 1988
issues.
The difficulty here, however, is the lack of
evidentiary support for the district court's ruling on the work
of the non-testifying experts. At oral argument, the
Association's counsel correctly conceded that there was no
support presented at the fee hearing for the necessity of the
experts' consultations, nor is there any evidence to account for
the services that they performed. Consequently, the award of
$4,622.73 for the expenses attributable to those witnesses who
did not testify cannot be sustained.
IV. ATTORNEY CONSULTATION WITH EXPERTS
Similarly, the court approved $40,107.59 for the time
that plaintiffs' counsel spent in consulting with those experts,
finding that a substantial amount of time was required to
interview class members as well as to research and evaluate their
medical and habilitation records. The burden of proof is on the
party claiming reimbursement. Rode v. Dellarciprete, 892 F.2d
1177, 1183 (3d Cir. 1990). Despite the fact that the
Commonwealth had objected to this particular request, the
Association never demonstrated why these activities were
necessary. Although an allowance might well have been proper,
once again, plaintiffs failed to produce any evidence at the
hearing convened to resolve these issues. Therefore, the
Association has not sustained its burden.
We will not grant the Commonwealth's request in full,
however, because it appears that it overlaps, to some extent, the
$3,780.00 fees for escorting experts discussed in Section II. We
will, therefore, deduct $3,780.00 from the $40,107.59, thereby
reducing the disallowance for this item to $36,327.59.
V. DUPLICATION OF EFFORT
The Commonwealth contends that there was extensive
duplication of legal services by the Association's counsel and
Mr. Ferleger. Two specific instances submitted for our
consideration are (1) the dual attendance at depositions by the
Association's counsel and by Mr. Ferleger, and (2) counsel's
failure to coordinate their work in the extensive preparation of
proposed findings of fact, resulting in two separate submissions
rather than a single consolidated one.
In many cases, the attendance of additional counsel
representing the same interests as the lawyers actually
conducting the deposition is wasteful and should not be included
in a request for counsel fees from an adversary. See Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983). The fact that a private
client may accede to the practice and pay the additional fees
does not necessarily make them reasonable nor necessary when they
are to be paid by the other party to the proceedings. We do not
meet the issue here, however, because the Commonwealth did not
raise it in the district court. See Student Pub. Interest
Research Group of N.J., Inc. v. AT&T Bell Labs., 842 F.2d 1436,
1454 (3d Cir. 1988).
However, the failure of counsel to coordinate their
efforts in the preparation of the findings of fact was
challenged, and we therefore will consider it. The district
court found that both sets of requests for findings were non-
repetitious and helpful and that it appeared that counsel had
made a conscious effort to be non-duplicative.
Mr. Ferleger submitted findings of 132 pages.
Principal counsel for the Association testified at the hearing in
the district court that she had filed proposed findings of 131
pages as well. She conceded that "we never discussed filing a
single joint proposed findings" and defended the practice of
separate submissions throughout the proceedings because different
parties were being represented. Perhaps there may have been a
justification for that procedure during some phases of the
litigation, but we are unable to discern the necessity of
preparing uncoordinated, separate findings when the interests of
those representing the retarded citizens were identical.
We have examined the requests for findings and are
convinced that coordination between counsel would have reduced
the total time required for preparation. Redundant review of the
record by both counsel and the drafting of parallel requests is
wasteful in a situation like this, and some sort of cooperation
should have been employed.
We therefore conclude that the Commonwealth's request
for a fifty-percent reduction in the 154 hours it asserts the
Association's principal counsel spent in preparation of the
findings of fact should be granted. The Association has not
questioned the amount of time allocated to that task, and
therefore, we accept the Commonwealth's computation. We thus
conclude that the record requires a disallowance in the amount of
$15,400.00 for the redundant work in preparing proposed findings
of fact.
VI. ACROSS-THE-BOARD REDUCTION
The Commonwealth contends that the lodestar should have
been reduced by 20% across-the-board because plaintiffs obtained
substantially less relief than they sought. The district court
disagreed and concluded that "plaintiffs achieved substantially
all of the relief they requested and to which they were entitled
and with the exception of the [disallowed items], the relief
obtained by the plaintiffs justified the amount of time
expended." On review of objections to specific items in the
plaintiffs' fee schedule, the district court reduced the
$554,842.01 originally requested by $110,363.51 and permitted a
total of $444,478.50.
Because it had conceded in the district court that it
was not in compliance with all of the terms of the settlement
agreement, the Commonwealth contends that this was not a "risky"
case and the only real issue was the scope of the remedy. We
note, however, that the concession was not made until the outset
of the hearing -- after the plaintiffs' work was substantially
completed. The trial judge expressed his surprise in responding
to defendants' counsel, "You're telling me it was a slam dunk. I
wished I had realized the first day I saw you in this courtroom
that this was going to be a slam dunk. . . . [N]obody told me at
that juncture that . . . [you were] admitting liability or I
would have said: Fine, the hearing is over."
The reality is that both liability and remedy were
contested and that the district court did grant very substantial
relief to plaintiffs. We are not persuaded that the district
judge erred in rejecting an across-the-board reduction and,
instead, choosing to evaluate specific items in the fee requests.
VII. CONCLUSION
Granting the following expenses was inconsistent with a
proper exercise of discretion and will be disallowed as listed:
$7,375.00 Publicity
$3,780.00 Escorting Experts
$4,622.73 Non-Testifying Experts' Expenses
$36,327.59 Attorney Consultation with Experts
$15,400.00 Duplication of Services
$67,505.32 TOTAL REDUCTION OF AWARD
Because the fees were to be evenly divided between the
Commonwealth and the City of Philadelphia, the award of counsel
fees and expenses against the Commonwealth will be reduced by
$33,752.66.
The case will be remanded to the district court for
modification of the judgment against the Commonwealth by reducing
it to $188,486.59. In all other respects, the judgment of the
district court will be affirmed.
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