Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-2-1995

Halderman v Pennhurst
Precedential or Non-Precedential:

Docket 94-1674




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Recommended Citation
"Halderman v Pennhurst" (1995). 1995 Decisions. Paper 66.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/66


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       UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                ____________

                No. 94-1674
                ____________


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
                        ____________

    APPEAL FROM THE UNITED STATES DISTRICT COURT
      FOR THE EASTERN DISTRICT OF PENNSYLVANIA
               (D.C. No. 74-cv-01345)
                    ____________

               Argued December 19, 1994

Before:   GREENBERG, SAROKIN and WEIS, Circuit Judges

              Filed     March 2, l995
                       ____________
Jerome J. Shestack, Esquire (ARGUED)
Barry M. Klayman, Esquire
WOLF, BLOCK, SCHORR and SOLIS-COHEN
12th Floor Packard Building
15th & Chestnut Streets
Philadelphia, PA 19102-2678

Attorneys for Appellant, Commonwealth of Pennsylvania


Frank J. Laski, Esquire (ARGUED)
Judith A. Gran, Esquire
PUBLIC INTEREST LAW CENTER OF PHILADELPHIA
125 S. 9th Street, Suite 700
Philadelphia, PA 19107

Attorneys for Appellees

                            ____________

                       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 in

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., 

(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., 

, 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. § 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, 

, 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., 

, 46 (1991); Alyeska Pipeline Serv. Co.

v. Wilderness Soc'y, 

, 258 (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, 

(4th Cir. 1994), the Court of Appeals rejected a 42 U.S.C. § 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."      

  The

Court commented that "[t]he legitimate goals of litigation are

almost always attained in a courtroom, not in the media."       

§ 1988 case, Hart v. Bourque, 

,

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., 

, 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, 

, 1545 (9th Cir. 1992),

vacated in part on other grounds, 

(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 hours spent were "reasonable and necessary to

the outcome of the contempt litigation."

          We have cautioned on a number of occasions that when a

lawyer spends time on tasks that are easily delegable to non-

professional assistance, legal service rates are not applicable.

We cannot condone "the wasteful use of highly skilled and highly

priced talent for matters easily delegable to non-professionals."

Ursic v. Bethlehem Mines, 

, 677 (3d Cir. 1983);

Prandini v. National Tea Co., 

, 1020 (3d Cir. 1977).

          Even the use of a paralegal for the work described in

this claim at $60 per hour appears to be questionable.      However,

it has not been challenged, and we will not rule on it.     In any

event, we are persuaded that a disallowance of $3,780.00, as

suggested by the Commonwealth, should be granted.

       III.   AWARD OF EXPENSES FOR NON-TESTIFYING EXPERTS

          The Association submitted a claim for $13,662.73 in

fees and costs expended in retaining three non-testifying

experts, and $9,040.00 for an additional expert who did testify.
All of the experts purportedly toured class-member sites,

interviewed class members, researched and evaluated records, and

prepared reports.   The district court awarded $9,040.00 for the

testifying expert, but allowed only a total of $4,622.73 for the

remaining experts, apparently in the belief that the entire claim

for experts was $13,662.73.    Actually, the total claim for

experts, including the one who testified, was $22,702.73.

          Approval of the testifying expert's fees in the amount

of $9,040.00 has not been challenged on appeal, and the

Commonwealth objects only to the claim for the three non-

testifying expert witnesses.     The district judge found their

participation "indispensable to this case" and, relying on

equitable powers to remedy the contempt rather than on 42 U.S.C.

§ 1988, allowed the $4,622.73 collective sum.     We agree that

granting reimbursement fees of this nature would be proper in a

contempt action and, therefore, need not discuss the § 1988

issues.

          The difficulty here, however, is the lack of

evidentiary support for the district court's ruling on the work

of the non-testifying experts.    At oral argument, the

Association's counsel correctly conceded that there was no

support presented at the fee hearing for the necessity of the

experts' consultations, nor is there any evidence to account for

the services that they performed.     Consequently, the award of

$4,622.73 for the expenses attributable to those witnesses who

did not testify cannot be sustained.

             IV.    ATTORNEY CONSULTATION WITH EXPERTS
          Similarly, the court approved $40,107.59 for the time

that plaintiffs' counsel spent in consulting with those experts,

finding that a substantial amount of time was required to

interview class members as well as to research and evaluate their

medical and habilitation records.    The burden of proof is on the

party claiming reimbursement.   Rode v. Dellarciprete, 

, 1183 (3d Cir. 1990).    Despite the fact that the

Commonwealth had objected to this particular request, the

Association never demonstrated why these activities were

necessary.   Although an allowance might well have been proper,

once again, plaintiffs failed to produce any evidence at the

hearing convened to resolve these issues.    Therefore, the

Association has not sustained its burden.

          We will not grant the Commonwealth's request in full,

however, because it appears that it overlaps, to some extent, the

$3,780.00 fees for escorting experts discussed in Section II.     We

will, therefore, deduct $3,780.00 from the $40,107.59, thereby

reducing the disallowance for this item to $36,327.59.




                     V.   DUPLICATION OF EFFORT

          The Commonwealth contends that there was extensive

duplication of legal services by the Association's counsel and

Mr. Ferleger.   Two specific instances submitted for our

consideration are (1) the dual attendance at depositions by the

Association's counsel and by Mr. Ferleger, and (2) counsel's
failure to coordinate their work in the extensive preparation of

proposed findings of fact, resulting in two separate submissions

rather than a single consolidated one.

          In many cases, the attendance of additional counsel

representing the same interests as the lawyers actually

conducting the deposition is wasteful and should not be included

in a request for counsel fees from an adversary.    See Hensley v.

Eckerhart, 

, 434 (1983).     The fact that a private

client may accede to the practice and pay the additional fees

does not necessarily make them reasonable nor necessary when they

are to be paid by the other party to the proceedings.     We do not

meet the issue here, however, because the Commonwealth did not

raise it in the district court.   See Student Pub. Interest

Research Group of N.J., Inc. v. AT&T Bell Labs., 

,

1454 (3d Cir. 1988).

          However, the failure of counsel to coordinate their

efforts in the preparation of the findings of fact was

challenged, and we therefore will consider it.    The district

court found that both sets of requests for findings were non-

repetitious and helpful and that it appeared that counsel had

made a conscious effort to be non-duplicative.

          Mr. Ferleger submitted findings of 132 pages.

Principal counsel for the Association testified at the hearing in

the district court that she had filed proposed findings of 131

pages as well.   She conceded that "we never discussed filing a

single joint proposed findings" and defended the practice of

separate submissions throughout the proceedings because different
parties were being represented.   Perhaps there may have been a

justification for that procedure during some phases of the

litigation, but we are unable to discern the necessity of

preparing uncoordinated, separate findings when the interests of

those representing the retarded citizens were identical.

           We have examined the requests for findings and are

convinced that coordination between counsel would have reduced

the total time required for preparation.   Redundant review of the

record by both counsel and the drafting of parallel requests is

wasteful in a situation like this, and some sort of cooperation

should have been employed.

           We therefore conclude that the Commonwealth's request

for a fifty-percent reduction in the 154 hours it asserts the

Association's principal counsel spent in preparation of the

findings of fact should be granted.   The Association has not

questioned the amount of time allocated to that task, and

therefore, we accept the Commonwealth's computation.   We thus

conclude that the record requires a disallowance in the amount of

$15,400.00 for the redundant work in preparing proposed findings

of fact.

                 VI.   ACROSS-THE-BOARD REDUCTION

           The Commonwealth contends that the lodestar should have

been reduced by 20% across-the-board because plaintiffs obtained

substantially less relief than they sought.   The district court

disagreed and concluded that "plaintiffs achieved substantially

all of the relief they requested and to which they were entitled

and with the exception of the [disallowed items], the relief
obtained by the plaintiffs justified the amount of time

expended."   On review of objections to specific items in the

plaintiffs' fee schedule, the district court reduced the

$554,842.01 originally requested by $110,363.51 and permitted a

total of $444,478.50.

          Because it had conceded in the district court that it

was not in compliance with all of the terms of the settlement

agreement, the Commonwealth contends that this was not a "risky"

case and the only real issue was the scope of the remedy.   We

note, however, that the concession was not made until the outset

of the hearing -- after the plaintiffs' work was substantially

completed.   The trial judge expressed his surprise in responding

to defendants' counsel, "You're telling me it was a slam dunk.     I

wished I had realized the first day I saw you in this courtroom

that this was going to be a slam dunk. . . . [N]obody told me at

that juncture that . . . [you were] admitting liability or I

would have said:   Fine, the hearing is over."

          The reality is that both liability and remedy were

contested and that the district court did grant very substantial

relief to plaintiffs.   We are not persuaded that the district

judge erred in rejecting an across-the-board reduction and,

instead, choosing to evaluate specific items in the fee requests.

                         VII.   CONCLUSION

          Granting the following expenses was inconsistent with a

proper exercise of discretion and will be disallowed as listed:

          $7,375.00      Publicity

          $3,780.00      Escorting Experts
          $4,622.73     Non-Testifying Experts' Expenses

          $36,327.59     Attorney Consultation with Experts

          $15,400.00     Duplication of Services



          $67,505.32     TOTAL REDUCTION OF AWARD

Because the fees were to be evenly divided between the

Commonwealth and the City of Philadelphia, the award of counsel

fees and expenses against the Commonwealth will be reduced by

$33,752.66.
          The case will be remanded to the district court for

modification of the judgment against the Commonwealth by reducing

it to $188,486.59.   In all other respects, the judgment of the

district court will be affirmed.
_________________________________