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D ock e t 97-1893

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. e du/thir dc ir c uit_2001/139Filed June 27, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 97-1893

EDWIN MALDONADO; MARIA DELORES MALDONADO, individually and as next friends of Ana Maldonado, Pablo Maldonado, Edwin Maldonado, Rey Maldonado, Y esenia Maldonado, and Jose Maldonado, and on behalf of all others similarly situated; MARIA ORTIZ; MICHAEL ORT IZ, individually and as next friends of Julie Ortiz, Mi chael Ortiz, and Angelica Ortiz, and on behalf of all oth er similarly situated; KENSINGTON WELFARE RIGHTS
UNION; PHILADELPHIA WELFARE RIGHTS ORGANIZATION, on behalf of themselves and their members; TRAVELER'S AID SOCIETY OF PHILADELPHIA, individually and on behalf of its clients

v.

FEATHER O. HOUSTOUN, Secretary of the
PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE; DON JOSE STOVALL, Executive Director of the PHILADELPHIA BOARD OF ASSISTANCE, both in their official capacities,

Appellants

STAPLETON, ROSENN, Circuit Judges, and RESTANI, Judge, United States Court of International T rade*

(Filed June 27, 2001)

___________________________________________________ ______________ * The Honorable Jane A. Restani, Judge, United Stat es Court of International Trade, sitting by designation.OPINION SUR MOTION for ATTORNEYS' FEES

and COSTS

ROSENN, Circuit Judge:

The determination of a reasonable attor ney's fee f or a prevailing party under a fee shifting statute gener ally is a disagreeable and tedious task, especially wher e th e fee petition is vigorously contested and the petition i s in behalf of numerous lawyers who worked on the appeal. The f ee motion before us claims over 550 hours of attor ney time expended exclusively for work on the appeal. W e ar e required to analyze the motion and supporting data to
ascertain whether the amount claimed is reasonable. The motion is especially troublesome because in this si ngle issue appeal, ten lawyers represented the plaintiff s and claim compensation for not only an aggregate of 550 .13 hours of service on the appeal, but an additional c laim of 25.68 hours for services expended on the fee petiti on. The total sum claimed is $100,996.40 in attorneys' fees and $648.74 in costs.

The plaintiffs, welfare recipients in Pennsylvania, brought
a class action in 1997 in the United States Distric t Court challenging the constitutionality of Pennsylvania's two-tier durational residency requirement limiting the amoun t of public assistance benefits for new residents. The p laintiffs
claimed that the two-tier welfare scheme violated t heir constitutional rights to travel, to equal pr otecti on, and to non-discriminatory treatment under the Privileges a nd Immunities Clause. They moved for class certificati on and an injunction. The plaintiffs sued pursuant to 42 U .S.C. S 1983, naming the State Secretary of Public Welfar e and the Executive Director of the Philadelphia Boar d o f
Assistance as defendants. The District Court held t hat the
two-tier welfare scheme violated the Fourteenth Amendment Equal Protection Clause, granted the injunction, and certified the class action. On the basis of a stipulation of counsel, the District Court or dered the defendants to pay $248,000 for the plaintiffs' fees for services rendered in that court, and costs. The

2Commonwealth appealed and, after briefing and oral

argument, we affirmed. See Maldonado v. Houstoun, 1 57 F.3d 179 (3d Cir. 1998).

After our decision, the Supreme Court of the United States granted certiorari to review Roe v. Anderson , 134 F.3d 1400 (9th Cir. 1998), a decision which struck down similar provisions in a California statute.

Based on our decision and the decision of the Unite d States Supreme Court in Saenz v. Roe, 526 U.S. 489 (1999) (affirming the judgment of the United States Court of Appeals for the Ninth Circuit in Roe v. Anderson, 1 34 F.3d 1400 (9th Cir. 1998)), we now have befor e us the p laintiffs' motion for attorneys' fees and costs in connection with their appeal to this court.

I.

The plaintiffs (appellees) claim that they ar e ent itled to the attorneys' fees and costs requested because the y prevailed on the appeal within the meaning of 42 U. S.C. S 1983. See 42 U.S.C. S 1988(b) (providing, in the court's discretion, a reasonable attor ney's fee to a preva iling party to a S 1983 action). As we stated above, they also prevailed in the District Court where the trial judge, acting on a stipulation of counsel for the parties, enter ed an order on January 3, 2000, awarding plaintiffs $248,000 in fu ll
satisfaction of fees and costs incurred in that cou rt. Regrettably, we have no stipulations in the motion before us; on the contrary, the appellants (effectively th e State) strenuously oppose the motion in all of its aspects

.

The State contends that the fees requested ar e "gr ossly unreasonable." It acknowledges that the appellees a re entitled to receive a fee award, but asserts that t he fee request is "grotesquely inflated." The State emphas izes that the appeal presented only a single issue which, alt hough important, was not particularly complicated, and tu r ned largely on the Court's construction of Shapiro v. T hompson, 394 U.S. 618 (1969). Specifically, the State ar gue s that an award for the hours claimed for preparation of the brief at oral argument should be substantially r educed, and that the appeal's single issue, "which had alr eady been

3thoroughly explored in the District Court," reasona bly

should have required no more than 100 hours. The St ate also contends that the hourly rate claimed for the attorneys is excessive and that the allowable hourly rate for all lawyers, including those of a private law fir m, sh ould conform to the rates of Community Legal Services (C LS), which have been widely accepted as fairly reflectin g the prevailing market rates in Philadelphia. The State asserts that attorneys of Dechert, Price & Rhoads pr ovided insufficient support for their high rates claimed.

On the other hand, the appellees assert that the is sues on appeal "were complex and difficult," required fa miliarity with a large body of case law, state statutes and regulations, that the case was not "over -lawyered" by the plaintiffs, and that they have "alr eady substantia lly reduced their hours to account for any inefficiencies cr ea ted by a multi-firm team." They further assert that the time they spent on the appeal was reasonable, and that the St ate's lack of cooperation in the preparation of the appen dix added to the expense. They also argue that the hour ly rate
claimed is reasonable and that the State should be ordered to pay Dechert "at its normal rates, which are set by the

market."

II.

In assessing the reasonableness of a claimed fee in cases like this, we use the "lodestar" formula, which req uires multiplying the number of hours reasonably expended by a reasonable hourly rate. See Hensley v. Eckerhart, 4 61 U.S. 424 (1983); Pennsylvania v. Delaware V alley Citize ns' Council for Clean Air, 478 U.S. 546 (1986); Pennsyl vania Environ. Def., 152 F.3d at 232."When the applicant for a fee has carried his burden of showing that the clai med rates and number of hours are reasonable, the resul ting product is presumed to be the reasonable fee to whi ch counsel is entitled." Delaware V alley Citizens' Co uncil, 478 U.S. at 564 (internal quotation omitted).

In calculating the hours reasonably expended, a cou rt should "review the time charged, decide whether the hours set out were reasonably expended for each of the pa rticular

4purposes described and then exclude those that ar e

`excessive, redundant, or otherwise unnecessary.' " Public Int. Research Group of N.J., Inc. v. W indall, 51 F .3d 1179, 1188 (3d Cir. 1995) (internal citation omitted); se e also Rode v. Dellarciprete, 892 F .2d 1177, 1183 (3d Cir . 1990) ("The district court should exclude hours that ar e not reasonably expended."). "Hours that would not gener ally be billed to one's own client are not properly billed to an adversary." Public Interest Gr oup, 51 F.3d at 1188 . Thus, we have a positive and affirmative function in the fee fixing process, not merely a passive role.

Generally, a reasonable hourly rate is calculated according to the prevailing market rates in the rel evant community. See Blum v. Stenson, 465 U.S. 886, 895 ( 1984); Dellarciprete, 892 F.2d at 1183. The court "should assess the experience and skill of the prevailing party's attorneys and compare their rates to the rates pr evailing in the community for similar services by lawyers of r easo nably comparable skill, experience, and reputation." Dell arciprete, 892 F.2d at 1183. The prevailing party"bears the bu rden of establishing by way of satisfactory evidence, `in a ddition to [the] attorney's own affidavits,' . . . that the re quested hourly rates meet this standard." W ashington v. Philadelphia Cty. Ct. of Common Pleas, 89 F .3d 103 1, 1035 (3d Cir. 1996) (citing Blum v. Stenson , 465 U.S. 8 86, 895 n.11 (1984)). The starting point in ascertaining a reasonable hourly rate "is the attor ney's usual bi lling rate, but this is not dispositive." Public Inter est Grou p, 51 F.3d at

1185.

In analyzing this heated controversy, some concepts and precepts are indisputable. The plaintif fs presente d an excellent case and a high quality brief. Accor ding ly, they are entitled to all hours "reasonably expended on t he litigation." West Virginia University Hospitals, In c. v. Casey, 898 F.2d 357, 360 (3d Cir. 1990) (quoting Hershey v

. Echerhart, 461 U.S. 424, 436 (1993). The converse i s also true; they are not entitled to compensation for hou rs unreasonably expended on the litigation.

III.

We do not question the accuracy of counsel's record s. Our principal concern is whether the time claimed i s

5reasonable for the services perfor med, a concern w hich is

accentuated because of the many lawyers involved in behalf of the plaintiffs. Ordinarily, this appeal could ha ve been briefed and argued by a single lawyer or two. Lawye rs should understand that although the likelihood of s uccess in a fee shifting case may be promising, the pr osp ects of payment by a defendant with a deep pocket or a defe ndant with tax collecting powers should not encourage the utilization of an excess number of lawyers on the preparation of the appeal. Nor is work on the appea l intended to be a training school for law students o r embryonic lawyers at the expense of the losing part y. A reviewing court must adhere to the statutory and ca se law standards. As do the district courts, an appellate court also has a positive and affirmative function in the fee fixing

process.

In analyzing the services rendered on this appeal, we divide them into categories: 1) research and briefi ng; 2) preparation of the supplemental appendix; 3) oral argument; and 4) communication and confer ences. We will determine a reasonable hourly rate and then review the fees claimed for preparing the fee petition.

1. Research and Briefing

The facts before this court on the underlying appea l comprised two short paragraphs. The single issue be fore us on the appeal, although significant, was framed in these words: "Whether Pennsylvania violates the Constitut ion by providing that, for one year after their arrival in Pennsylvania, applicants for certain welfare benefi ts may receive only the amount they would have r eceived i n their state of prior residence." We, ther efore, noted th at we were "only to determine the constitutionality of the sta te statute," and that we only had to address the propr iety of the District Court's legal conclusion in granting t he injunction.

In our analysis of the law on the right to travel, we stated in our written opinion, as did the District Court, that the seminal case on the subject of strict scrutiny of s tate durational residency requirements as prerequisite t o eligibility for welfare benefits was Shapiro v. Tho mpson, 394

6U.S. 618 (1969). We observed that the Court r eaffi rmed this

decision five years later in Memorial Hospital v. M aricopa County, 415 U.S. 250 (1974). The holdings in those cases have never been overturned, and were very well know n to legal scholars and those practicing public service law. They were binding precedent upon us in deciding this cas e. We believed then, and we have no reason to change our opinion now, that this case was important and inter esting, but not complex. This in no way alters plaintif fs' right to a reasonable fee for their services, but it does not justify excessive claims. The immediate and difficult quest ion is
whether the hours claimed are reasonable for the se rvices performed.

First, we note that the appellees' attorneys on app eal represented them in the District Court. Judge Newco mer had discussed the legal issue on appeal in a well-w ritten and thorough opinion. See Maldonado v. Houstoun, 17 7 F.R.D. 311 (E. D. Pa. 1997). In his opinion, Judge Newcomer cited the District Court opinion in Roe v. Anderson, 166 F. Supp. 977 (E. D. Cal. 1997) enjoin ing the enforcement of a similar statute. The Supr eme Cour t later affirmed Anderson in Saenz v. Roe, supra. The Distr ict Court also discussed at length Shapiro and its pro geny. See Maldonado, 177 F.R.D. at 323-33 (1997).

Thus, much if not all of the pertinent law had been briefed and argued in the District Court, and the D istrict Court opinion carefully and thoughtfully analyzed i t. We are, therefore, stunned that over 550 hours are cla imed for researching, briefing, conferring, pr eparing a sup plemental appendix, and arguing the single constitutional iss ue before

us.

The appellees noted in their brief to this court th at the State "has explicitly limited its arguments on appe al to the
class's likelihood of success on the merits" and ha s waived the issues pertaining to the other three factors ne cessary to the issuance of a preliminary injunction. In additi on, the salient cases and statute on the single issue to be argued by the State were set forth by the District Court i n its opinion. The court analyzed at length Shapir o v. T hompson and its progeny, and discussed the criticism of Sha piro in Attorney General of New York v. Soto-Lopez, 476 U.S . 898

7(1986), Memorial Hospital v. Maricopa County, 415 U .S. 250

(1974), and a leading law review article by Thomas R. McCoy entitled "Recent Equal Protection Decisions - - Fundamental Right to Travel or `Newcomers' as a Sus pect
Class?" The District Court also discussed T odd Zub ler's law review article on "The Right to Migrate and Welfare Reform: Time for Shapiro v. Thompson to Take a Hike."

Thus, the researching and briefing of the law on th e single uncomplicated issue before this court did no t require creating or developing an original theory or analyz ing obscure principles of law. Moreover , the burden re sted on the State, not the appellees, in framing the issue and preparing the appendix. Notwithstanding, appellees'
counsel claim an enormous amount of time for r esea rching and briefing an issue which they had successfully t ried, researched, and briefed in the District Court.

True, the appellees prepared and submitted an excel lent brief of 41 pages. The first 13 pages, however , es sentially contain the appellee's statement of the issue, the counterstatement of the case, and a two-page summary of th e argument. The remaining 28 pages contain the argume nt. Our arithmetic shows that the appellees claim an ag gregate amount of 276.65 hours for research and briefing. U nder the foregoing circumstances, we believe that a reas onable and generous amount of time for resear ch and brief ing on the single issue, especially considering the r esea rch and briefing in the District Court, and the pertinent l aw set forth in the District Court decision, is 120 hours.

2. Supplemental Appendix

Appellees claim 32.50 hours for the preparation of their appendix supplementing the State's appendix. Consid ering that the appellant had the burden of pr eparing and submitting the original appendix, we believe two no r mal work days should have been more than sufficient for the preparation of a supplemental appendix. W e will al low 16 hours for this purpose.

3. Oral Argument

Appellees claim 169.35 hours in preparation for a t wenty minute oral argument. This is the equivalent of sli ghtly

8more than 21 full eight-hour days. Susan Frietsche, who

made the oral argument for the appellees, individua lly claimed 77.3 hours in preparation for the oral argu ment and one hour in court for making the argument. Her colleagues in the case claimed an aggregate of 72.0 5 hours preparing for the oral argument to be made by Friet sche who, although at the Bar for only six years when sh e argued this case before the court, had achieved an impressive record at college, law school, and in pu blic service litigation. A total of 169.35 hours in pr e paration for an oral argument on a single issue that had been tr ied, briefed, and argued in the District Court is unacce ptable. 65.5 hours are claimed by Eliza Shapiro, and 15.25 hours by Sarah Moskowitz in preparation for oral ar gumen t. If a private client had agreed to pay for such services, so be it. But in fee shifting, there are standar ds to be mai ntained. See Norman v. Housing Auth. of Montgomery, 836 F.2d 1292 (11 Cir. 1988) (court should exclude hours that wou ld be unreasonable to bill to a client, irrespective of c ounsel's experience, skill, or reputation).

A reasonable fee for hours spent preparing for a le gal argument should be limited to hours reasonably nece ssary for a lawyer to become familiarized with the facts and the law pertaining to the issue to be argued, an analys is of the opponent's argument, and questions anticipated to b e posed by the court. Under the fee shifting statute, the losing party is expected to pay for hours reasonabl y spent in the argument and its preparation, but not for ex cessive hours, or hours spent in learning or excessively re hearsing appellate advocacy. We believe 24 hours for prepara tion for this oral argument, and two hours for attendance at oral argument, is fair and reasonable.

4. Conferences and Communications

Appellees also request payment for over 40 hours sp ent on telephones, conference calls, and meetings to pl an strategy, and payment for over 80 hours of miscella neous time. There is considerable question whether many o f these activities, communications and conference calls wer e necessary at all. For reasons evident in Part IV of our opinion, we will not tarry in our analysis of these claims

9but will allow 40 hours as generous and r easonable for all

these purposes.

5. Fee Petition

We also believe that the time claimed for the prepa ration of a simple six-page fee petition, largely suppleme nted by affidavits of several counsel, resumes, and time sh eets, is excessive. Again we will not set forth our r easons therefor at this point but will resolve the matter in Part I V hereof.

6. Hourly Rate

The appellees have the burden of establishing a reasonable hourly rate for each of the attor neys. Each of the parties offer very little evidence pertaining t hereto. The fee schedule established by Community Legal Service s, Inc. ("CLS") "has been approvingly cited by the Third Ci rcuit as being well developed and has been found by [the Eas tern District of Pennsylvania] to be a fair reflection o f the prevailing market rates in Philadelphia." See Raine y v. Philadelphia Housing Auth., 832 F. Supp. 127, 129 ( E. D. Pa. 1993)(citing Swaayze v. Philadelphia Housing Au th., No. 91-2982, 1992 WL 81598, at N2 (E. D. Pa. Apr . 16, 1992)). The State has no objection to their use here. W e a pprove of those rates as reasonable in fixing the hourly rate s in this case, and deny the hourly rates that are inconsiste nt with

them.

IV.

In summary, we believe a reasonable number of hours for the services performed in behalf of the plaintiffs is as

follows:

Procedure Hour s Research and briefing 120 Preparation of supplemental appendix 16 Preparation for oral argument 24 Attendance at oral argument 2 Telephone calls and conferences 40 Preparation for fee petition 10

Total reasonable hours 212 hours

10In their Memorandum in Opposition to Appellees' Mot ion,

the State used the CLS fee schedule to adjust appel lees' hourly rates where appropriate. We hold that the ra tes set
forth in the CLS schedule are reasonable for the se rvices performed in this case.

The State's memorandum submits that a reasonable number of hours for the services perfor med in this appeal is an aggregate of 219.84 hours. Our independent an alysis confirms that this figure is gener ous and not unre asonable.
The State also has undertaken the difficult task of calculating the lodestar for each individual claima nt; we
deem their calculations to be reasonable and accura te. That
calculation is as follows:

ATTORNEY HOURS HOURLY RATE LODESTAR McLaughlin 15.25 $250 $3,812.50 Nosowsky 32.70 $140 $4,578.00 Fitinides 35.59 $120 $4,270.80 Terry 27.20 $130 $3,536.00 Frietsche 28.60 $150 $4,290.00 Shapiro 23.90 $90 $2,151.00 Moskowitz 0.00 $60 0.00 Weishaupt 22.35 $265 $5,922.75 Stein 10.25 $275 $2,818.75 Kreimer 24.00 $250 $6,000.00 TOTAL 219.84 $37,379.80

The State has no objection to the claim for costs o f $678.74

and we will allow it.

With respect to the fee petition, the State asserts that the
hours claimed should reflect a reduction of 50% bec ause of the limited success on the fee petition. We have he ld "that the fee reduction rationale of Hensley. . . applies by force of the Court's reasoning to fees generated in the l itigation of a fee petition, and compels us to treat the fee petition litigation as a separate entity subject to lodestar and Hensley reduction analysis." Institutionalized Juve niles v. Secretary of Pub. Welfare, 758 F.2d 897, 924 (3d Ci r. 1985); accord, Durette v. Cohen, 790 F.2d 360 (3d Cir. 198 6); see also West Virginia University Hospitals, Inc., 898 F.2d at 367. We believe that this proposal is r easonable, and

11applying the rates we have already held to be r eas onable,

we approve the following sums:

McLaughlin 0.35 hours x $250 = $ 87.50 Fitinides 5.85 hours x $120 = $ 702.00 Frietsche 1.4 hours x $150 = $ 210.00 Shapiro 0.4 hours x $90 = $ 36.00 Weishaupt 4.45 hours x $265 = $1179.25 Kreimer 0.25 hours x $250 = $ 62.50 TOTAL 12.7 hours $2277.28

V.

Accordingly, we hold that the lodestar pr oposed by the State is reasonable and award $37,379.80 as attorne ys' fees for the work performed on appeal. W e will awa rd $2277.28 for preparation of the fee petition. W e w ill award the full amount of costs claimed, $678.74; this amo unt is
reasonable and uncontested. The State is dir ected to pay
the same to individual counsel in the sums set fort h above.

A True Copy:

Teste:

Clerk of the United States Court of Appea ls
for the Third Circuit

12