Rode v. Dellarciprete
| Decision Date | 04 January 1990 |
| Docket Number | No. 89-5131,89-5131 |
| Parties | 52 Empl. Prac. Dec. P 39,541 Vivian M. RODE and Jay C. Hileman, Appellants, v. Nicholas G. DELLARCIPRETE, John Harhigh, Josephine Fure, Ruth Brown, and Robert Kinch, Pennsylvania State Police and Commonwealth of Pennsylvania, Richard Thornburgh, Leroy S. Zimmerman, Jay Cochran, Jr., Appellees. |
| Court | U.S. Court of Appeals — Third Circuit |
Shumaker & Williams, P.C., Lawrence W. Dague, Dianne E. Dusman (argued), Harrisburg, Pa., for appellants.
Ernest O. Preate, Jr., Atty. Gen., Calvin R. Koons (argued), Sr. Deputy Atty. Gen., John G. Koons, III, Chief Deputy Atty. Gen., Chief, Litigation Section, Harrisburg, Pa., for appellees.
Before HIGGINBOTHAM, BECKER and NYGAARD, Circuit Judges.
This appeal stems from an award of attorney's fees pursuant to 42 U.S.C. § 1988. Appellants, prevailing parties in a civil rights action, sought attorneys' fees and costs of $186,328.88; the district court awarded them fees and costs of $54,746.02. Appellants argue that the district court committed several errors in determining their fee, specifically the court's rulings regarding delay compensation, duplicative or excessive work, the contingency and negative multipliers, the sufficiency of the fee petition and the fee generated preparing the fee petition. We will affirm in part, reverse in part, and vacate in part and remand to the district court for an award of fees and explanation thereof consistent with this opinion.
Appellant Jay C. Hileman was an area commander and former director of the personnel bureau of the Pennsylvania State Police (PSP). Vivian M. Rode was an administrative assistant in the personnel bureau. She also is Hileman's sister-in-law.
In 1982, Hileman was subpoenaed to testify in a race discrimination suit against the PSP. Hileman testified that the PSP engaged in racially discriminatory employment practices.
In 1986, appellants filed a seven-count complaint alleging that the Governor, the Attorney General, the PSP and several of its employees violated appellants' first and fourteenth amendment rights as well as the terms of a consent decree from another case and Section 704 of Title VII, 42 U.S.C. § 2000e-3. 1 Hileman alleged that soon after his 1982 testimony, the PSP retaliated against him, in part by transferring him to a PSP station more than 200 miles from his home and instituting unfounded disciplinary proceedings. Rode alleged that she was harassed after Hileman's testimony because she was his sister-in-law. She essentially claimed that she was demoted without reason and received a two day suspension for speaking to a reporter in violation of PSP Regulation 4-6. 2
The district court granted defendants' motion to dismiss the claims against the Governor and Attorney General. The district court also granted defendants' motion for summary judgment against Rode as to Counts I and II, but required further briefing on Regulation 4-6 which was challenged in Count III. The court denied defendants' motion for summary judgment against Hileman except as to one defendant. After further briefing on Regulation 4-6, the court enjoined enforcement of certain provisions, 3 but held that Regulation 4-6.03A was not void for vagueness. Hileman then settled, receiving the relief he sought.
Rode appealed the dismissals and grant of summary judgment and this court concluded that, as applied, Regulation 4-6.03A violated Rode's first amendment rights and we remanded to the district court to determine damages on that issue; we affirmed the district court in all other respects. Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir.1988). On remand, Rode settled, essentially receiving the relief she sought under her first amendment free speech claim.
Appellants submitted a fee petition pursuant to 42 U.S.C. § 1988 seeking attorneys' fees and costs in the amount of $186,328.88. Appellants calculated their fee request in the following manner: they sought $89,362.50 for Lawrence Dague, lead counsel (714.9 hours X $125 per hour); $30,266.00 for Dianne Dusman, associate counsel (337.4 hours X $90 per hour); $10,925.00 for Carol Karl, paralegal (218.5 hours X $50 per hour); $6,470 for Michael Fenton, student law clerk (129.4 X $50 per hour); $3,980 in costs; and a 25% enhancement for contingency. Additionally, appellants requested that the court apply counsel's current hourly rates rather than historical rates to compensate for delay. Lastly, appellants requested $10,944 in fees and costs incurred in preparing the fee petition.
Appellees opposed the fee petition on several grounds. First, they argued that an enhancement was inappropriate because appellants failed to establish that enhancement was necessary to attract competent counsel. Second, they argued that Attorney Dague's hourly rate was too high. Third, they argued that many hours devoted to the case were excessive and duplicative. They also noted that appellants' practice of aggregating the number of hours and tasks performed each day made it difficult to determine how many hours of work were devoted to a specific activity. 4 Fourth, they argued that the paralegal and law clerk time was excessive and should be billed at cost to the firm. Fifth, they challenged some of the costs sought by appellants. Lastly, they challenged the fee petition preparation time as "grossly excessive." In summary, appellees requested the district court to exclude: 498.4 hours of Dague; 217.9 hours of Dusman; 73.2 hours of Karl; 79.1 hours of Fenton; and 86.6 hours of the fee preparation. 5
The district court awarded attorneys' fees and costs in the amount of $54,746.02. The court denied appellants' request for a 25% multiplier because appellants did not present evidence which would justify a contingency multiplier. The court concluded that the affidavits submitted by appellants failed to meet the standards enunciated in Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 483 U.S. 711, 107 S.Ct. 3078, 97 L.Ed.2d 585 (1987) (Delaware Valley II ).
The court cut 20 hours of Attorney Dague's time spent defending the motion to dismiss the Governor and Attorney General because appellant did not prevail against these defendants and these claims were sufficiently separable from the rest of the litigation. The court cut sixty-five hours of Attorney Dague's time devoted to the appeal as excessive. The court also cut twenty hours appellants spent on the motions for recusal and to amend the complaint because the motions did not facilitate defendant's offer of settlement.
The court made the following reductions without specifying how many hours it was reducing. The court reduced as excessive the number of hours spent briefing the challenge to the regulations and preparing the trial brief. The court also eliminated Attorney Dusman's duplication of Attorney Dague's efforts on the appeal. Next the court deducted hours for lack of specificity in the fee petition. The court concluded that the fee petition made it difficult to determine an appropriate award. At the end of its opinion, the district court calculated the various reductions it made for excessiveness, duplication and lack of specificity. For Attorney Dague, the court eliminated 205.7 hours for inadequate description. For Attorney Dusman, the court eliminated 145.6 hours for inadequate description or duplication or excessiveness. For paralegal Karl, the court eliminated 101.7 hours for inadequate description or duplication. For law clerk Fenton, the court reduced 122.1 hours for inadequate description. As to Dusman and Karl, the court failed to specify how many hours it was reducing for which of the reasons given.
The court rejected appellants' use of Attorney Dague's current billing rates to compensate for delay because it would result in "gross overcompensation." It also refused to compensate for delay because appellants failed to provide the court with a satisfactory substitute. The court also reduced the lodestar by one-third because appellants failed to succeed on Rode's associational claim and for what the court found to be the disorganized state of the fee petition.
Lastly, the court concluded that thirty-five hours for Dusman's time was appropriate for preparing the fee petition; therefore, it eliminated the 57.7 hours claimed by Dague and almost 9 hours claimed by Dusman. The court also applied a one-third negative multiplier to the hours devoted to the fee petition because appellants only partially succeeded in obtaining the fee award sought.
Appellants raise several issues on appeal. First, appellants argue that the district court abused its discretion in denying their request for a 25% contingency multiplier. Second, appellants argue that the district court abused its discretion in reducing counsel's hours as excessive or duplicative, specifically the work on the motion to dismiss the Governor and Attorney General, the post-offer motions, briefing the constitutional challenge to the PSP regulations, preparing a trial brief and preparing for appeal. Third, appellants argue that the district court abused its discretion by failing to compensate for delay. Fourth, appellants argue that the district court abused its discretion by reducing hours for lack of specificity. Fifth, appellants argue that the district court abused its discretion by applying a one-third negative multiplier to the lodestar. Sixth, appellants argue that the district court abused its discretion in reducing the hours spent preparing the fee petition to thirty-five.
We review the reasonableness of an award of attorney's fees for an abuse of discretion. Institutionalized Juveniles v. Secretary of Public Welfare, 758 F.2d 897, 909 n. 21 (3d Cir.1985). An abuse of discretion can occur when no reasonable person would adopt the...
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