Delaware Valley Citizens' Council for Clean Air v. Com. of Pa.
| Decision Date | 14 May 1985 |
| Docket Number | Nos. 84-1179,84-1208,s. 84-1179 |
| Citation | 762 F.2d 272 |
| Parties | , 15 Envtl. L. Rep. 20,475 DELAWARE VALLEY CITIZENS' COUNCIL FOR CLEAN AIR, et al., American Lung Association of Philadelphia, and Montgomery County, Delchester Lung Association, Sierra Club, Pennsylvania Chapter Friends of the Earth of the Delaware Valley, Citizens' Committee for Environmental Control, Quinn, Kevin, Farrell, Kaysi, Weiss, Ruth G., Klinkner, John, Biez, Elizabeth S., Shulman, Mona v. COMMONWEALTH OF PA., & Train, Russell E., Ind. & as Administrator of the Environmental Protection Agency, et al., Sherlock, William T., Individually and as Secretary of the Pa. Dept. of Transportation, Goddard, Maurice K., Individually and as Secretary of the Pa. Dept. of Environmental Resources, Snyder, Daniel J., III, Individually and as Regional Administrator of the Environmental Protection Agency, Region III. UNITED STATES of America v. COMMONWEALTH OF PENNSYLVANIA; the Pennsylvania Department of Transportation and William T. Sherlock, Secretary of the Pennsylvania Department of Transportation; The Pennsylvania Department of Environmental Resources and Maurice K. Goddard, Secretary of the Pennsylvania Department of Environmental Resource. Appeal of COMMONWEALTH OF PENNSYLVANIA, Secretary of Pennsylvania Department of Transportation and Secretary of Pennsylvania Department of Environmental Resources. Appeal of DELAWARE VALLEY CITIZENS' COUNCIL FOR CLEAN AIR. |
| Court | U.S. Court of Appeals — Third Circuit |
James D. Crawford (argued), Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., for Delaware Valley Citizens' Council for Clean Air, appellees in No. 84-1179 and cross-appellants in No. 84-1208.
Spencer A. Manthorpe, Chief Counsel, John M. Hrubovcak (argued), Asst. Counsel, Dept. of Transp., Harrisburg, Pa., appellant in No. 84-1179 and cross-appellee in No. 84-1208.
Before ALDISERT, Chief Judge, BECKER, Circuit Judge, and STERN, District Judge. *
This opinion addresses an appeal by the Commonwealth of Pennsylvania 1 from a large judgment for attorneys fees and costs in favor of the Delaware Valley Citizens' Council for Clean Air (DVCCCA), pursuant to the attorneys fee provision contained in Sec. 304(d) of the Clean Air Act (the Act), 42 U.S.C. Sec. 7604(d), in an action brought under the citizen lawsuit provision of the Act, 42 U.S.C. Sec. 7604(a), 581 F.Supp. 1412 (D.C.Pa.1984). We also consider a cross-appeal by DVCCCA.
The underlying action was instituted by DVCCCA to compel Pennsylvania to meet federal air quality standards in several areas of the state. The litigation was ostensibly concluded in 1978 by entry of a consent decree establishing a program for the inspection and maintenance of automobile emissions systems in those geographic areas (the I/M program). After obtaining the consent decree, however, DVCCCA was confronted with prolonged and determined resistance by the Commonwealth and the Pennsylvania General Assembly to the decree's implementation, and its implementation was accomplished only after protracted, bitter, and highly publicized enforcement proceedings. These fee petition appeals relate only to work performed after entry of the consent decree.
While the appeals present a number of questions, the most important is whether attorneys fees may be awarded for the work of DVCCCA's in-house counsel. Over the Commonwealth's objection, we will affirm the district court's award of fees for such work. Moreover, for the reasons that follow, we will affirm the judgment of the district court in all other respects as well.
The relevant facts surrounding the complex litigation underlying this attorneys fee request have very recently been summarized by this Court and need not be repeated here. See DVCCCA v. Commonwealth of Pennsylvania, 755 F.2d 38, 40-41 (3d Cir.1985). 2 We will therefore turn directly to a brief description of the fee petition litigation itself.
In its petition to the district court for attorneys fees and costs, plaintiff divided its request for compensation into nine phases. 3 The Commonwealth acceded to this approach, as did the district court, which made its fee award in terms of the nine phases. 4 The district court considered an extensive record and decided the fee petition application in a comprehensive opinion of some 40 pages. While we need not summarize the district court's opinion (the challenged portions are discussed infra ), it is important to note that the court took much care in examining the fee petition and disallowed a significant number of claimed hours because it found them inadequately documented, duplicative, unnecessary, or excessive. The court awarded attorneys fees of $209,813.00 for work in the underlying litigation representing a lodestar of $82,233.50 augmented by multipliers of two for phases IV and VII and four for Phase V. 5 The court then stayed its order pending appeal.
This fee petition is brought pursuant to the Clean Air Act's counsel fee provision, Sec. 304(d), 42 U.S.C. Sec. 7604(d), which states:
(d) Award of costs; security
The court, in issuing any final order in any action brought pursuant to subsection (a) of this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate.
In Ruckelshaus v. Sierra Club, 463 U.S. 680, 103 S.Ct. 3274, 77 L.Ed.2d 938 (1983), the Supreme Court held that "absent some degree of success on the merits by the claimant, it is not 'appropriate' for a federal court to award attorney's fees." Id. 103 S.Ct. at 3281. 6 Plaintiff is eligible for attorneys fees, therefore, only if it has achieved "some success on the merits."
If plaintiff meets this threshold eligibility requirement, it is entitled under Sec. 304(d) to an award of "reasonable" fees. This part of the Clean Air Act's attorneys fee provision is consonant with the requirements of most other statutory attorneys fee provisions, including 42 U.S.C. Sec. 1988, and we see no reason why the calculation of a reasonable fee for Clean Air Act purposes should differ from the same calculation that courts undertake pursuant to other provisions with the identical standard. Accordingly, we hold that the jurisprudence regarding the calculation of reasonable attorneys fees developed in connection with other attorneys fee statutes--particularly Sec. 1988--is applicable to cases brought pursuant to Sec. 304(d). This includes the jurisprudence concerning the calculation of a lodestar, the determination of reasonable hourly rates, and the enhancement of a fee award based on the quality of the work. See generally Blum v. Stenson, --- U.S ----, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984); Institutionalized Juveniles v. Secretary of Public Welfare, 758 F.2d 897 (3d Cir.1985).
Having set forth the contours of the Clean Air Act's attorneys fee provision, we now turn to a review of the challenged aspects of the fee award in this case.
The district court included in the lodestar five categories of work (phases I, II, III, VI, and IX) for which the Commonwealth contends that fees cannot be awarded. Before we examine these contentions, we state two general propositions. First, we have no doubt that, by gaining implementation of the consent decree, plaintiff has achieved "some success" in its efforts and a fee award is therefore "appropriate" under Sec. 304(d) of the Act. We hold, therefore, that the work done in each of the five phases is compensable if the work contributed to DVCCCA's successful efforts to implement the consent decree.
Second, we point out that the district court made certain findings that bear generally upon the relationship between work in these phases and success in implementing the decree. The court stated:
During the litigation and up until the present day, there has existed an intense adversarial atmosphere among all concerned parties. The defendants' presence has constantly been dominated by either a policy or an attitude that has tried to prohibit or delay the implementation of the I/M program in response to which the plaintiffs have constantly heldfast to their position, without being totally inflexible. Additionally, plaintiffs have been required to partake in activities which, while not directly required under the consent decree, were sufficiently related to its goals and the ongoing litigation that such efforts should, and will be compensated for in some reasonable measure.
These findings, based upon the district court's nine-year experience in this case, are subject to the clearly erroneous rule. We conclude that they should not be disturbed.
We now consider whether the district court erred in awarding fees for work performed during the five phases at issue. Phase I involved the portion of the litigation that followed the Commonwealth's initial delay in promulgating proposed regulations for the I/M program as required by the consent decree. The Commonwealth objects to the award of fees for this work because it contends that DVCCCA acted in bad faith in refusing to negotiate what the Commonwealth considered a suitable extension of time for fulfillment of its obligations to publish the proposed regulations. The district court found that DVCCCA had not acted in bad faith, that its actions were appropriate, and indeed that a court order compelling compliance by the Commonwealth was required for the protection of DVCCCA's rights under the decree.
Phase II of the litigation primarily involved the submission by DVCCCA of comments to the proposed regulations that were required by the consent decree. The Commonwealth objects to the award of fees for this work because any person may submit comments on proposed regulations and the work was technical, rather than...
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