Pennsylvania Environmental Defense Foundation v. Canon-McMillan School Dist.

• Decision Date: 11 August 1998
• Docket Number: No. 97-3136,CANON-M,97-3136
• Citation: 152 F.3d 228
• Parties: 28 Envtl. L. Rep. 21,506 PENNSYLVANIA ENVIRONMENTAL DEFENSE FOUNDATION (P.E.D.F.), Appellant v.cMILLAN SCHOOL DISTRICT.
• Court: U.S. Court of Appeals — Third Circuit

Page 228

152 F.3d 228

28 Envtl. L. Rep. 21,506

PENNSYLVANIA ENVIRONMENTAL DEFENSE FOUNDATION (P.E.D.F.), Appellant v. CANON-McMILLAN SCHOOL DISTRICT.

No. 97-3136.

United States Court of Appeals Third Circuit.

Argued Jan. 21, 1998.

Reargued May 22, 1998.

Decided Aug. 11, 1998.

John E. Childe, Jr. (Argued), Palmyra, PA, for Appellant.

Steven M. Petrikis (Argued), Rose, Schmidt, Hasley & DiSalle, Pittsburgh, PA, for Appellee.

Before: SLOVITER, LEWIS ^* and GARTH, Circuit Judges.

Before: SLOVITER, RENDELL and GARTH, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

The factors that should be considered in a court's determination of a counsel fee award and the procedure to be used in that connection, issues that occupied all levels of the federal judiciary for numerous years, have finally been resolved through a series of decisions of the United States Supreme Court. The question before us is whether, after all the effort that went into that resolution, we will allow the courts of this circuit to bypass the Supreme Court's explicit directions merely because counsel failed to interpose an objection to the procedure.

I.

Before us is an appeal by the Pennsylvania Environmental Defense Foundation ("PEDF"), a non-profit environmental action group, from an order of the district court awarding it attorneys' fees following the entry of a consent decree in its suit against Canon-McMillan School District under the Clean Water Act, 33 U.S.C. § 1365.

PEDF, which had sent the School District its detailed statutorily required Notice of Intent to Sue on August 20, 1993, brought suit on March 30, 1994, alleging that there were "repeated violations" of the terms of the School District's National Pollution Discharge Elimination System permit because of discharges from the Wylandville Elementary School sewage system into a tributary of Little Chartiers Creek in North Strabane Township, Pennsylvania. PEDF alleged that the violations were damaging the creek in violation of 33 U.S.C. §§ 1311(a) and 1342 and sought injunctive relief, civil penalties and costs. PEDF was not the only entity concerned about this pollution. The Pennsylvania Department of Environmental Resources ("DER") had renewed the School District's NPDES permit on March 17, 1994. DER also informed the School District of measures it needed to take to come into compliance with its permit limits. The Environmental Protection Agency, which had been conducting a contemporaneous investigation, submitted a Notice of Proposed Assessment of a Civil Penalty against the School District on August 30, 1994 and also directed it to come into compliance.

After the School District made what it referred to as several "minor process adjustments," it was apparently in full compliance with all of its permit limits by January 1995. On February 16, 1995, the School District filed both a Motion for Stay and a Motion for a Protective Order, arguing that the litigation should be stayed and discovery halted because it was in complete compliance with its permit. The district court denied those motions on February 22, 1995, and PEDF continued with its preparation. In March of 1995, the district court granted PEDF's motion to file a reply brief to the School District's memorandum in opposition to PEDF's motion for partial summary judgment. PEDF filed that reply brief on March 23, 1995.

Thereafter, the parties reached a settlement and submitted to the district court a Consent Decree, which it signed on June 23, 1995. The settlement reserved the issue of the award of attorneys' fees, and shortly thereafter PEDF filed a motion for attorneys' fees and submitted a statement of fees and expenses. The district court held oral argument on the fees and then issued an order on December 2, 1996 that directed the parties to submit proposed findings of fact and conclusions of law. The court's order stated, inter alia:

[E]ach party shall submit a proposed order which shall set forth, in specific detail, its proposal for completely resolving this issue. The court will adopt as its own the proposed findings and sign, without modification, the one proposed order which, in the judgment of the court, is most reasonable under the circumstances.

App. at 94 (emphasis in original). Neither party objected to this order, and both filed the required proposed findings and conclusions.

PEDF's proposed findings of fact and conclusions of law requested a total of $70,282.09. It arrived at that figure by the formula set out in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), through calculating a "lodestar" based on a proposed "reasonable hourly rate" of $160 per hour for attorney John E. Childe and $60 per hour for Paralegal Cindy Smith, multiplied by "hours reasonably expended." App. at 95, 118. PEDF submitted a detailed account of these charges and accompanying time slips. The School District's proposed findings of fact and conclusions of law suggested the much lower fee of $20,414.62. The district court adopted verbatim the School District's proposed findings of fact and conclusions of law, except that it submitted its own short introduction. It follows that although we will refer to the court's order, it must be remembered that the "order" is in fact in the language prepared by the School District.

Although the order was highly critical of certain aspects of PEDF's fee request, including the proposed rates and the expenditure of time on certain issues, it did not explicitly reduce the hours that PEDF billed for these services. Instead, it was keyed to the determination that PEDF was entitled to no fee for the period after which the School District was in "full compliance." It stated, "By January of 1995, it is thus undisputed that no further violations were occurring at the Wylandville Elementary School system, and the expenditure of $18,000 for structural modifications assured that the problems would not recur.... By its own calculations, PEDF had expended $8,963 in attorney's fees as of the date when the Wylandville Elementary School system was in full compliance...." D.C. Opinion at 7. On the basis that PEDF had needlessly pursued the litigation after January 1995, after the violations had been abated, the order adopted by the district court granted PEDF all of the attorneys' fees it had requested for the time period through January 1995, but no fees for time spent after that date, except for $1,910 in connection with the consent decree. It also awarded PEDF $3,000 for fees in connection with the fee litigation and $6,541.62 in costs. D.C. Opinion at 21-22.

The order, in language stemming from the School District, concluded that "the total of $20,414.62 is generous under the circumstances, and, although the facts and law relating to duplicative billing, hourly rates and degree of difficulty would justify a reduction of this amount, the Court will award this amount at this time." D.C. Opinion at 22. We have jurisdiction over PEDF's appeal pursuant to 28 U.S.C. § 1291.

II.

The award of attorneys' fees in this case is authorized under the citizens' suit provision of the Clean Water Act, which provides that a court "may award costs of litigation (including reasonable attorney and expert witness fees) to any prevailing or substantially prevailing party, whenever the court determines such award is appropriate." 33 U.S.C. § 1365(d). The statute places no restriction on the award other than that the party entitled to the award be "prevailing or substantially prevailing."

In Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), and Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986), the Supreme Court adopted the approach first set forth in this court's opinions in Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d Cir.1973), and Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 540 F.2d 102 (3d Cir.1976), with respect to the appropriate procedure and considerations for a district court to follow in awarding attorneys' fees. Central to the Supreme Court's decisions has been its adoption of the "lodestar" formula, which requires multiplying the number of hours reasonably expended by the reasonable hourly rate. See Blanchard v. Bergeron, 489 U.S. 87, 94, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989); Delaware Valley Citizens' Council, 478 U.S. at 564, 106 S.Ct. 3088; Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984); Hensley, 461 U.S. at 433, 103 S.Ct. 1933.

The "starting point" in determining the appropriate hourly rate is the attorneys' usual billing rate. Public Interest Research Group of N.J., Inc. v. Windall, 51 F.3d 1179, 1185 (3d Cir.1995). The Supreme Court has directed that the district court should then consider the "prevailing market rates" in the relevant community. Blum, 465 U.S. at 895, 104 S.Ct. 1541 (1984); see also Missouri v Jenkins, 491 U.S. 274, 285, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989). In calculating the second part of the lodestar determination, the time reasonably expended, "[t]he district court should review the time charged, decide whether the hours set out were reasonably expended for each of the particular purposes described and then exclude those that are 'excessive, redundant, or otherwise unnecessary.' " Windall, 51 F.3d at 1188 (quoting Hensley, 461 U.S. at 433-34, 103 S.Ct. 1933). Once the court has calculated the lodestar it may adjust that amount, primarily based on the degree of success that the plaintiff obtained. See Hensley, 461 U.S. at 435, 103 S.Ct. 1933. However, the cases make clear that before any adjustments are made, the district court must calculate a lodestar. See Windall, 51 F.3d at 1190.

In Windall, this court considered a district court's award of attorneys' fees under § 1365(d) of the Clean Water Act, which presented a situation where the public...