Halderman by Halderman v. Pennhurst State School & Hosp.

• Decision Date: 02 March 1995
• Docket Number: No. 94-1674,94-1674
• Citation: 49 F.3d 939
• Parties: 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 Superi
• Court: U.S. Court of Appeals — Third Circuit

Page 939

49 F.3d 939

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.

No. 94-1674.

United States Court of Appeals, Third Circuit.

Argued Dec. 19, 1994.

Decided March 2, 1995.

Jerome J. Shestack (argued), Barry M. Klayman, Wolf, Block, Schorr and Solis-Cohen, Philadelphia, PA, for appellant, Com. of Pa.

Frank J. Laski, Esquire (argued), Judith A. Gran, Public Interest Law Center of Philadelphia, Philadelphia, PA, for appellees.

Before: GREENBERG, SAROKIN and WEIS, Circuit Judges.

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 on 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. Sec. 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, 111 S.Ct. 2123, 2133, 115 L.Ed.2d 27 (1991); Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 258, 95 S.Ct. 1612, 1622, 44 L.Ed.2d 141 (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. Sec. 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 Sec. 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...