Vecchione v. Wohlgemuth

• Decision Date: 11 December 1979
• Docket Number: Civ. A. No. 73-162.
• Citation: 481 F. Supp. 776
• Parties: Elvira VECCHIONE, Plaintiff, v. Helene WOHLGEMUTH et al. Walter BURESS, Individually and on behalf of all others similarly situated, Plaintiff-Intervenor, v. Frank BEAL et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

481 F. Supp. 776

Elvira VECCHIONE, Plaintiff, v. Helene WOHLGEMUTH et al.

Walter BURESS, Individually and on behalf of all others similarly situated, Plaintiff-Intervenor, v. Frank BEAL et al., Defendants.

Civ. A. No. 73-162.

United States District Court, E. D. Pennsylvania.

December 11, 1979.

Community Legal Services, Inc., Philadelphia, Pa., for plaintiff, Elvira Vecchione.

David L. Ferleger, Herbert Newberg, Philadelphia, Pa., for plaintiff-intervenor Walter Buress.

Robert Hoffman, Harrisburg, Pa., for defendants.

OPINION AND ORDER

EDWARD R. BECKER, District Judge.

I. Preliminary Statement

This opinion will consider a motion for counsel fees pursuant to the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, in a civil rights case brought under 42 U.S.C. § 1983.¹ The history of this litigation has been chronicled in three opinions: Vecchione v. Wohlgemuth, 377 F.Supp. 1361 (E.D.Pa.1974) (Vecchione I), Vecchione v. Wohlgemuth, 426 F.Supp. 1297 (E.D.Pa.), aff'd 558 F.2d 150 (3d Cir.), cert. denied, sub nom. Beal v. Vecchione, 434 U.S. 943, 98 S.Ct. 439, 54 L.Ed.2d 304 (1977) (Vecchione II); and Vecchione v. Wohlgemuth, 80 F.R.D. 32 (E.D.Pa.1978) (Vecchione III). We therefore need not detail the facts of the case here. In terms of subject matter, suffice it to say that the Vecchione litigation deals with the right of patients confined in Pennsylvania mental health/mental retardation (MH/MR) facilities to control and manage their own property as against: (1) the right of the Commonwealth summarily to seize and control it for the duration of the hospitalization without prior notice or hearing on the issue of the patient's competency to manage that property; and (2) the right of the Commonwealth to appropriate part of the patient's property in satisfaction of the cost of care and maintenance, without prior or subsequent hearing on the correctness of the Commonwealth's assessment.

In terms of result, as the earlier opinions make plain, plaintiff is the prevailing party, for she has won a broad injunctive decree that confers major benefits upon MH/MR patients and affords significant protection for their property. The decree has revolutionized the management of patient funds. Indeed "Vecchione" has become a household word in the Pennsylvania MH/MR field and among Orphan's Court (Estates) practitioners. Recently, the probate section of the Philadelphia Bar Association sponsored a "Vecchione Conference" to train volunteer lawyers to handle guardianship petitions arising under the Vecchione decree.

Plaintiffs' right to counsel fees is not really disputed; indeed at the second hearing we held on the fee question, counsel for the Commonwealth conceded as much.² Although the Fee Awards Act leaves to the discretion of the district court the decision whether to award fees, its presumption is that successful counsel should "ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." Senate Report No. 94-1011, 94th Cong. 2nd Sess. 2, U.S.Code Cong. & Admin. News 1976, pp. 5908, 5912. This case presents no special circumstances, and none have been suggested, that would render a fee award unjust. The only dispute is as to the amount of recovery. Accordingly, we shall devote this opinion to resolving that question. And while our task is facilitated by the Third Circuit's guidelines for determining an appropriate fee, as first articulated in Lindy Bros. Builders v. American Radiator and Standard Sanitary Corp., 487 F.2d 161 (3d Cir. 1973) (Lindy I), there are certain aspects of this case that require special attention.

Initially, we must determine whether hours spent on those portions of the case that resulted in the 1974 injunction and declaration and the 1975 consent decree must be excluded from our calculations on the theory that such portions of the case were not pending on the Act's effective date. See n. 2, supra. Second, we must determine what constitutes reasonable hourly rates for counsel here, who, unlike lawyers in mercantile practice, do not have set rates at which they normally bill clients. And third, we must consider whether, in attempting to arrive at a reasonable fee, we should make an adjustment because of the defendants' alleged bad faith as demonstrated by the failure to implement the 1974 and 1975 Vecchione decrees.³

With Lindy I, the Third Circuit began its attempt to plot with some precision the course to be followed by the district courts in awarding attorneys' fees in appropriate cases. The basic guidelines of Lindy I have been further refined in Lindy II, 540 F.2d 102 (3d Cir. 1976); Merola v. Atlantic Richfield Co., 493 F.2d 292 (3d Cir. 1974) (Merola I) and 515 F.2d 165 (3d Cir. 1975) (Merola II); Prandini v. National Tea Co., 557 F.2d 1015 (3d Cir. 1977) (Prandini I) and 585 F.2d 47 (3d Cir. 1978) (Prandini II); Rodriguez v. Taylor, 569 F.2d 1231 (3d Cir. 1977), cert. denied 436 U.S. 913, 98 S.Ct. 2254, 56 L.Ed.2d 414 (1978); and Hughes v. Repko, 578 F.2d 483 (3d Cir. 1978). The latter three cases are particularly relevant here because they deal with statutorily authorized attorneys' fees rather than with awards from a common fund.

Lindy I first requires the court to determine the number of compensable hours spent on the case by examining the activities engaged in by counsel and deciding whether the number of hours claimed was reasonably necessary to produce the benefit conferred. In order to place a value on these services, the court must next fix a reasonable hourly rate of compensation for each attorney. The rates may vary according to the nature of the services performed and/or the qualifications, ability and experience of the attorney who performed them. The number of hours multiplied by the reasonable hourly rate produces the lodestar figure, which may then be adjusted to reflect the contingent nature of success and quality of the work. In Merola II, 515 F.2d at 168-9, the court noted that the quality factor is evidenced by the work observed, the complexity of the issues, and the recovery obtained: "In settled cases quality is reflected largely in the benefit produced. It permits the court to recognize and reward achievements of a particularly resourceful attorney who secures a substantial benefit for his clients with a minimum of time invested, or to reduce the objectively determined fee where the benefit produced does not warrant awarding the full value of the time expended."

In addition to the quality and contingency factors, in civil rights cases the district court must also evaluate the reasonableness of the fee "in light of the important substantive purposes" of the Civil Rights Act on which the plaintiff relied. Hughes v. Repko, 578 F.2d at 488-89; see also, concurring opinions of Judges Rosenn at 490 and Garth at 492.

In fidelity to Lindy, we have calculated counsels' fees in two stages. First, we multiplied what we found to be a reasonable number of hours, including hours spent on the early phases of the case, by the various hourly rates that we determined in our discretion to be equal to the prevailing rates in this area for lawyers of similar experience and expertise, working on equally complex litigation. Then we adjusted those figures to reflect the contingency factor, the quality of the work, the bad faith of the Commonwealth defendants in implementing the decrees, and the extent to which this litigation furthered the substantive purposes of the Civil Rights Act, 42 U.S.C. § 1983.

These calculations produce the following fee awards, which we believe will provide reasonable compensation for the services rendered in this case: CLS: $110,641.70 in fees, $2,427.58 in costs; David Ferleger: $86,866.30 in fees, $329.00 in costs; Herbert Newberg: $6,708.00 in fees, $155.00 in costs.

II. Calculating the Lodestar

A. Introduction

This litigation was commenced by Community Legal Services (CLS) as counsel for plaintiff, Elvira Vecchione, in January, 1973. In July, 1974, the three-judge court that had been convened to decide the case issued an order enjoining the defendants from continued application of certain state statutes found to be unconstitutional. By early 1975, it was apparent that the defendants were continuing to appropriate the property of patients confined in state mental health facilities pursuant to the offending statutory scheme and in violation of the decree. Thereafter, in February, 1975, David Ferleger, Director of the Mental Patients Civil Liberties Project and an independent practitioner, sought and obtained leave to intervene for his client, Walter Buress. In June, 1975, Herbert Newberg entered an appearance as co-counsel for plaintiff-intervenor Buress. There are thus three separate applications for fees before the Court—those of CLS, of Mr. Ferleger, and of Mr. Newberg.

Five CLS attorneys have worked on the Vecchione matter over the years, three of them (Joel Brewer, Jonathan Stein, and Judy Greenwood) acting at various times as lead counsel — or, in the case of Ms. Greenwood, as lead co-counsel with David Ferleger. They seek to recover on behalf of CLS for 1336.14 hours of attorney time, compensated at a rate of $90 per hour for all services.⁴ Mr. Ferleger has submitted petitions for an award of fees for 752.73 hours of work at a rate of $70 per hour for time spent prior to August, 1975, and $90 per hour for time spent thereafter. Mr. Newberg seeks compensation for 73.9 hours at hourly rates of $100 for services rendered in 1975 and 1976; $135 for services rendered in 1977 and 1978; and $150 for services rendered in 1979. Additionally, Mr. Newberg seeks to recover for 30.6 hours of attorney time spent on the case by his former associate, John C. Gabroy, at a rate of $50 per hour. Finally, counsel seek reimbursement of costs and expenses: CLS — $3,242.06; Mr. Ferleger — $1,218.84; and Mr. Newberg — $221.50.

As is noted above, defendants object to compensating plaintiffs' counsel for...