1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-9-1996

Washington v. Phila Cty Ct

Precedential or Non-Precedential:

Docket 95-1613

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Recommended Citation

"Washington v. Phila Cty Ct" (1996). 1996 Decisions. Paper 96.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/96
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 __________ 

 No. 95-1613 

 __________ 

 MARTIN O. WASHINGTON, 

 

 v. 

 PHILADELPHIA COUNTY COURT OF COMMON PLEAS 

 Martin Washington, 

 Appellant 

 __________ 

 On Appeal from the United States District Court 

 for the Eastern District of Pennsylvania 

 (D.C. Civ. No. 92-3637) 

 __________ 

 Submitted Under Third Circuit LAR 34.1(a) 

 Monday, March 11, 1996 

 Before: NYGAARD, SAROKIN, 

 and ALDISERT, Circuit Judges 

 __________ 

 (Opinion filed July 9, 1996) 

 David Rudovsky 

 Kairys, Rudovsky, Kalman & Epstein 

 924 Cherry Street, Suite 500 

 Philadelphia, PA 19107 

 Alan B. Epstein 

 Jablon, Epstein, Wolf & Drucker 

 The Bellevue, Ninth Floor 

 Broad and Walnut Streets 

 Philadelphia, PA 19102 

 Attorneys for Appellant 

 A. Taylor Williams 

 Administrative Office of PA Courts 

 1515 Market Street, Suite 1414 

 Philadelphia, PA 19102 

 Attorney for Appellee
 ____________________ 

 OPINION OF THE COURT 

 ____________________ 

SAROKIN, Circuit Judge: 

 Appellant filed various claims against his former employer 

alleging racial discrimination and retaliatory harassment and 

discharge as a result of his pursuit of discrimination claims in 

agency proceedings. He eventually prevailed on the retaliation 

claim, though not on the claim of pre-retaliation discrimination. 

At the conclusion of the proceedings, Appellant petitioned for 

attorneys' fees, and his request was reduced by the district 

court by more than eighty percent. He now appeals the reduction 

of the fee award. 

 I. Facts and procedural posture 

 On June 22, 1992, Martin Washington filed an action in the 

United States District Court for the Eastern District of 

Pennsylvania against his former employer, the Philadelphia County 

Court of Common Pleas (the "County Court" or the "Court"). Mr. 

Washington's nine-count complaint alleged racially discriminatory 

acts with respect to employment under both federal and state 

statutes; retaliatory harassment and discharge after he filed an 

administrative claim of racial discrimination with the Equal 

Employment Opportunity Commission and the Pennsylvania Human 

Rights Commission, under both federal and state statutes; civil 

rights violations under federal and state statutes; violation of 

Pennsylvania's public policy and common law; and breach of 

contract of employment. 

 Five of the nine counts were dismissed on summary judgment 

in June 1993. The case eventually went to trial in November 

1993. At the conclusion of the trial, the jury found that the 

County Court did not discriminate against Mr. Washington on the 

basis of race. The jury did find, however, that the Court had 

unlawfully retaliated against Mr. Washington for filing his 

administrative claims, and awarded him compensatory damages of 

$25,000. After the jury verdict, the district court granted a 

post-trial Motion for Judgment as a Matter of Law to the County 

Court setting aside the jury verdict. 

 Mr. Washington appealed to this Court. We reversed the 

district court's order granting the post-trial motion, and 

reinstated the jury verdict. Washington v. Philadelphia County 

Court of Common Pleas, 47 F.3d 1163 (3d Cir. 1995) [table]. On 

remand, judgment was entered for Mr. Washington on the verdict. 

 At the conclusion of these proceedings, Mr. Washington's 

lead attorney, Alan B. Epstein, filed a Petition for Attorneys' 

Fees claiming that Mr. Washington was the "prevailing party" and 

seeking a total award of $175,987.50 in attorneys' fees for 

himself and two colleagues at the firm of Jablon, Epstein, Wolf 
and Drucker. Mr. Washington also sought fees of $3060 for 

Lanier B. Williams, his attorney in the administrative 

proceedings, as well as $7973.87 in plaintiff costs. Plaintiff's 

Petition for Attorneys' Fees and Reimbursement of Costs of 

Litigation, Washington v. Philadelphia County Court of Common 

Pleas, No. 92-CV-3637 (E.D. Pa. Apr. 3, 1995) [hereinafter 

Petition] (JA 12). The County Court challenged, inter alia, the 

sum requested for Mr. Epstein and his colleagues, asserting that 

both the hourly fees and hours requested were excessive. 

Objections of Defendant, Court of Common Pleas of Philadelphia 

County to Plaintiff's Petition for Attorneys' Fees and 

Reimbursement for Costs of Litigation, Washington v. Philadelphia 

County Court of Common Pleas, No. 92-CV-3637 (E.D. Pa. Apr. 28, 

1995). 

 On June 30, 1995, the district court entered a memorandum 

and order on the fee request. Washington v. Philadelphia County 

Court of Common Pleas, No. 92-CV-3637 (E.D. Pa. June 30, 1995) 

(mem.) [hereinafter Memorandum]. The court decreased the number 

of hours allowable by one half, finding Mr. Epstein's claim 

"excessive and unreasonable," id., typescript at 8, and by an 

additional fifty percent because Mr. Washington "hardly won a 

decisive victory in this case." Id. The court, however, did not 

extend the fifty-percent reduction to hours claimed in 

preparation of the fee petition. 

 Regarding the hourly rates sought by Mr. Epstein and his 

colleagues, the district court deemed it "impossible to consider 

[them] as bona fide hourly rates." Id., typescript at 11. 

Instead, the court concluded that "a reasonable hourly rate for 

[Alan B.] Epstein is $175 per hour. A reasonable rate for 

[Thomas D.] Rapp is $100 per hour. A reasonable rate for [Nancy] 

Abrams is $85 per hour." Id., typescript at 12. 

 Based on its various assessments, the court calculated the 

amount of the award for Mr. Epstein and his colleagues at 

$30,389.63, roughly seventeen percent of Mr. Epstein's request. 

Id., typescript at 13. In addition, the court disallowed any fee 

for Mr. Williams, "who unsuccessfully represented Washington at 

his PHRC hearing," id., and awarded $7973.97 for plaintiff 

costs. Id. 

 Mr. Washington is now appealing the district court's order 

reducing the counsel fees. He argues that: 

 The district court erred as a matter of law in its 

 reduction of the hourly rate for plaintiff's counsel 

 and in its reduction of the compensable hours 

 reasonably expended by counsel in this litigation. On 

 both issues the district court applied erroneous legal 

 standards; further, on the compensable hours issue, the 

 court made clearly erroneous factual determinations. 

Brief of Appellant at 12. 

 II. Jurisdiction 

 This action was commenced pursuant to the Civil Rights Act 

of 1964, as amended, 42 U.S.C.  2000e et seq. The district 

court had jurisdiction pursuant to 42 U.S.C.  2000e-5(f)(3) and 
28 U.S.C.  1331 and 1343. Plaintiff's various state claims 

were properly before the district court pursuant to the doctrine 

of supplemental jurisdiction as codified at 28 U.S.C.  1367(a). 

 The district court issued a final order on Plaintiff's 

petition for attorneys' fees on June 30, 1995. We have 

jurisdiction over an appeal from this order pursuant to 28 U.S.C. 

 1291. 

 III. Analysis 

 We review the reasonableness of an award of attorney's fees 

for an abuse of discretion. Rose v. Dellarciprete, 892 F.2d 

1177, 1182 (3d Cir. 1990). The question of what standards to 

apply in calculating an award of attorneys' fees is a legal 

question, and therefore we exercise plenary review over this 

issue. Keenan v. City of Philadelphia, 983 F.2d 459, 472 (3d 

Cir. 1992). 

 The matter of an attorney's marketplace billing rate is a 

factual question which is subject to a clearly erroneous standard 

of review. Student Public Interest Research Group v. AT & T Bell 

Laboratories, 842 F.2d 1436, 1442 (3d Cir. 1988) (citing Black 

Grievance Committee v. Philadelphia Electric Co., 802 F.2d 648, 

652 (3d Cir. 1986) (citation omitted), vacated on other grounds, 

483 U.S. 1015 (1987)). More generally, 

 the appellate court may not upset a trial court's 

 exercise of discretion on the basis of a visceral 

 disagreement with the lower court's decision. 

 Similarly, the appellate court may not reverse where 

 the trial court employs correct standards and 

 procedures, and makes findings of fact not clearly 

 erroneous. In sum, "[i]f the district court had 

 applied the correct criteria to the facts of the case, 

 then, it is fair to say that we will defer to its 

 exercise of discretion." 

Northeast Women's Center v. McMonagle, 889 F.2d 466, 475 (3d Cir. 

1989) (quoting Lindy Bros. Builders, Inc. of Philadelphia v. 

American Radiator & Standard Sanitary Corp., 540 F.2d 102 (3d 

Cir. 1976) (in banc) (citation omitted)), cert. denied, 494 U.S. 

1068 (1990). 

 A. The law of the lodestar 

 The Supreme Court has held that "[t]he most useful starting 

point for determining the amount of a reasonable fee is the 

number of hours reasonably expended on the litigation multiplied 

by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 

424, 433 (1983); see also Rode, 892 F.2d at 1183 (same). The 

result of this computation is called the lodestar. The lodestar 

is strongly presumed to yield a reasonable fee. City of 

Burlington v. Dague, 505 U.S. 557 (1992). 

 In this instance, the district court rejected Plaintiff's 

claims with regard to both the billing rates of his attorneys and 

the numbers of hours reasonably expended on the litigation. We 

review each element in turn. 
 B. The billing rates 

 The general rule is that a reasonable hourly rate is 

calculated according to the prevailing market rates in the 

community. Blum v. Stenson, 465 U.S. 886, 895-96 n.11 (1984); 

Student Public Interest Research Group, Inc., 842 F.2d at 1448 

(adopting the community market rule). The prevailing party bears 

the burden of establishing by way of satisfactory evidence, "in 

addition to [the] attorney's own affidavits," Blum, 465 U.S. at 

895 n.11, that the requested hourly rates meet this standard. 

 In the instant matter, counsel Alan Epstein sought hourly 

fees of $250 and $275 for himself; fees of $140 and $165 per hour 

for an associate, Thomas D. Rapp; and fees of $140 and $150 per 

hour for another associate, Nancy Abrams. Petition, typescript 

at 10. In support of the request, the lawyers submitted numerous 

documents, including a "Verification" (in effect, an affidavit) 

from Mr. Epstein for the fees cited, affidavits from various 

Philadelphia lawyers practicing in employment discrimination 

cases suggesting fees comparable to Mr. Epstein's, and billing 

statements in the case. 

 As the district court accurately noted, "[t]he issue of 

determining the reasonable hourly rate for an attorney, and the 

specific issue of determining a reasonable rate for Epstein and 

his associates are not unchartered waters in the district," 

Memorandum, typescript at 9. On two earlier occasions, the 

district court had considered similar requests from Mr. Epstein. 

Griffiths v. Cigna Corp., No. CIV. A. 91-2356 (E.D. Pa. Oct. 6, 

1994) (VanArtsdalen, J.) (Memorandum and Order); Oliver v. Bell 

Atlantic Corp., No. CIV. A. 92-751 (E.D. Pa. June 30, 1994) 

(Robreno, J.) (Order Memorandum). In both cases, the court 

rejected Mr. Epstein's claim and lowered his fee from the 

requested $250 an hour to a "reasonable hourly rate" of $175 per 

hour. Griffiths, 1994 WL 543501, *2; Oliver, 1994 WL 315815, 

**4-5. It is worth noting that the court's determination in 

Oliver was based on Judge VanArtsdalen's analysis in Griffiths. 

 The court in the instant case rejected Mr. Epstein's request 

as well and concluded: 

 I will follow the rulings made by Judge VanArtsdalen in 

 Griffith [sic] and Judge Robreno in Oliver. I find 

 that a reasonable rate for Epstein is $175 per hour. A 

 reasonable rate for Rapp is $100 per hour. A 

 reasonable rate for Abrams is $85 per hour. 

Memorandum, typescript at 2. 

 Those rulings, however, are no longer valid. This Court 

recently vacated the district court's decision in Griffiths on 

the very issue of hourly rates. Griffiths v. Cigna Corp., Nos. 

94-2090 & 94-2091 (3d Cir. Nov. 30, 1995) (unpublished). In 

rejecting the district court's determination, we explained: 

 As the prevailing party, Griffiths had the burden 

 of demonstrating "the community billing rate charged by 

 attorneys of equivalent skill and experience performing 

 work of similar complexity." See PIRG, 842 F.2d at 

 1450. We find that he did sustain that burden as to 
 Mr. Epstein's requested rate of $250 per hour, by 

 submitting the affidavits of Harold Goodman, Alica 

 Ballard, and Lorrie McKinley, attorneys in the

 Philadelphia area who represent plaintiffs in civil 

 rights litigation. These affidavits stated that Mr. 

 Epstein's requested hourly rate of $250 was reasonable 

 and within the range of prevailing rates charged by 

 Philadelphia attorneys with Mr. Epstein's skill and 

 experience. The opposition submitted by CIGNA failed 

 to rebut plaintiff's submissions on this point, both 

 because CIGNA's affidavits focused on the market rates 

 of defense attorneys, and because CIGNA did not 

 otherwise effectively challenge the content of

 plaintiff's affidavits. 

 Where, as here, the plaintiff has met his prima 

 facie burden under the "community market rate" lodestar 

 test, and the opposing party has not produced 

 contradictory evidence, the district court may not 

 exercise its discretion to adjust the requested rate 

 downward. Accordingly, we will vacate the attorneys' 

 fee award with respect to the hourly rate allowed for 

 Mr. Epstein's services, and direct that his services be 

 compensated at the $250 rate that plaintiff's 

 uncontroverted proofs established. 

 By contrast, plaintiff did not meet his prima 

 facie burden of proof with respect to the rates of 

 plaintiff's other attorneys, Mr. Rapp and Ms. Adams. 

 Specifically, Griffiths failed to demonstrate that the 

 requested rates were the prevailing rates in the 

 community. In the absence of such a showing, the 

 district court must exercise its discretion in fixing a 

 reasonable hourly rate. This court cannot say that 

 $100 and $85 per hour are unreasonable, and accordingly 

 the district court's award based on these rates will be 

 affirmed. 

Id., typescript at 14-16. 

 Our reasoning in Griffiths applies with equal strength in 

the instant matter. (It is worth noting that the same attorneys 

filed affidavits in support of Mr. Epstein's claim, and the 

district court even noted that Ms. Ballard "apparently filed an 

identical affidavit before Judge VanArtsdalen in the Griffith[sic] 

case."). See also Black Grievance Committee, 802 F.2d at 

652-53 (district court is not free to disregard attorney's 

affidavit when the other party "filed no affidavit and offered no 

testimony contesting the accuracy of [the attorney's] statement 

with respect to charges by comparable practitioners"); Cunningham 

v. City of McKeesport, 753 F.2d 262, 268 (3d Cir. 1985) (no 

material issue of fact when affidavit is uncontradicted), vacatedon other 

grounds, 478 U.S. 1015 (1986). 

 Therefore, we vacate and remand to the district court to 

reconsider the appropriate hourly fee for Mr. Epstein's services 

in light of Griffiths, and we affirm the district court's 
reduction of Mr. Rapp's and Ms. Adams's hourly fees. 

 C. The number of hours 

 In support of the petition, Mr. Epstein submitted forty 

pages of itemized records specifying the date when the work was 

performed, the attorney performing the work, the nature of the 

work (e.g., "Prepare complaint," "Conference with Alan Epstein 

regarding liability issues"), the amount of time spent and the 

hourly rate charged for that particular task. JA 90-129. 

 The district court dramatically reduced the hours allowed. 

First, in spite of the documentation submitted by Mr. Epstein, 

the district court found that the hours set forth were "not 

properly documented." Memorandum, typescript at 5. As the court 

explained, 

 [i]t would be fair to say that most of the entries are 

 vague and identified only by non-descriptive statements 

 such as "research", "review", "prepare", "letter to", 

 and "conference with." Descriptions such as this do 

 not suffice in establishing the reasonableness of a fee 

 petition. 

Id. (citation omitted). 

 Second, the court found that "many of the billable hours 

requested are redundant, unnecessary or excessive." Id. The 

court gave various examples of what it considered excessive, 

including that "Epstein, an experienced litigator, claims 69.6 

hours for unspecified 'trial preparation', an amount of time 

approximately twice as long as the trial itself." Id., 

typescript at 6. 

 Third, the court found that "requesting that this Court 

approve an expenditure of over $175,000 in fees to obtain a 

$25,000 verdict is nonsensical." Id., typescript at 7. 

 On the basis of these concerns, and following the lead of 

Judge Robreno in Oliver, the district court decreased the number 

of hours to be billed by one-half "on the grounds that they are 

excessive and unreasonable." Id., typescript at 8. In addition, 

the court decreased the hours by another fifty percent on the 

basis that "Washington hardly won a decisive victory in this 

case." Id. The court pointed out that five of Mr. Washington's 

nine claims were dismissed on summary judgment, that he did not 

prevail on "his primary claim," racial discrimination, and that 

the jury had awarded him far less than the $661,756.02 in damages 

and $103,000 in lost wages he initially sought. Id. 

 1. Specificity 

 We first review the district court's conclusion that Mr. 

Epstein did not adequately document the hours claimed. Attorneys 

seeking compensation must document the hours for which payment is 

sought "with sufficient specificity." Keenan, 983 F.2d at 472. 

More specifically, our jurisprudence has established that "[a] 

fee petition is required to be specific enough to allow the 

district court 'to determine if the hours claimed are 

unreasonable for the work performed.'" Id. at 473 (citing Rode, 

892 F.2d at 1190 (citation omitted)). It is an established 

proposition of law that "[w]here the documentation of hours is 
inadequate, the district court may reduce the award accordingly." 

Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). This 

proposition, however, only begs the question of what constitutes 

adequate documentation. 

 In answering this question, we do not operate in a legal 

vacuum. On several occasions, this Court has considered the 

proper degree of specificity required of a party seeking 

attorneys' fees. In particular, we recently undertook such a 

review in Rode v. Dellarciprete, 892 F.2d 1177 (3d Cir. 1990). 

We explained that specificity should only be required to the 

extent necessary for the district court "to determine if the 

hours claimed are unreasonable for the work performed." Id. at 

1190 (citing Pawlak v. Greenawalt, 713 F.2d 972, 978 (3d Cir. 

1983), cert. denied sub nom. International Broth. of Teamsters, 

Chauffeurs, Warehousemen and Helpers of America v. Pawlak, 464 

U.S. 1042 (1984)). Specifically, 

 a fee petition should include "some fairly definite 

 information as to the hours devoted to various general 

 activities, e.g., pretrial discovery, settlement 

 negotiations, and the hours spent by various classes of 

 attorneys, e.g., senior partners, junior partners, 

 associates." However, "it is not necessary to know the 

 exact number of minutes spent nor the precise activity 

 to which each hour was devoted nor the specific 

 attainments of each attorney." 

Rode, 892 F.2d at 1190 (citing Lindy Bros. Builders, Inc. of 

Philadelphia, 487 F.2d at 167). 

 Because we found that the district court had applied too 

exacting a standard in reducing hours for lack of specificity, we 

vacated its determination. The party seeking counsel fees had 

submitted various documents as evidence of the hours spent on the 

case, including a "computer-generated chronological list of the 

tasks performed and the time devoted to those tasks by the two 

attorneys, the paralegal and the law clerk who worked on the 

case." Id. at 1189. The district court found fault with the 

presentation of the records in simple chronological order, but we 

rejected the court's imposition of a requirement that records be 

kept by task -- e.g., for each motion, issue or part of the case. 

Id. at 1189-90. The district court also found that the list did 

not "provide[] adequate and specific descriptions of services and 

the time devoted to those services." Id. at 1190. In fact, 

 [e]ach entry provided the general nature of the 

 activity and the subject matter of the activity where 

 possible, e.g., T (Dusman); CF (client); R (re

 appeals), the date the activity took place and the 

 amount of time worked on the activity. 

Id. at 1191. 

 We concluded that the submissions in support of the petition 

"provided enough information as to what hours were devoted to 

various activities and by whom for the district court to 

determine if the claimed fees are reasonable." Rode, 892 F.2d at 

1191. 

 We recently reaffirmed our Rode holding, noting that the 

Court in Rode "found sufficient specificity where the computer- 
generated time sheet provided 'the date the activity took 

place.'" Keenan v. City of Philadelphia, 983 F.2d 459, 473 (3d 

Cir. 1992). In Keenan, we found that "computer-generated 

summaries of time spent by each attorney and paralegal met the 

standards of Rode." Id. 

 The computerized lists submitted by Mr. Epstein and his 

colleagues clearly meet the standards that we found satisfactory 

in Rode and Keenan. Therefore, as we did in Rode, we find that 

the district court applied erroneous legal standards when it 

concluded that the hours were not properly documented. 

 2. Excess 

 We now turn our attention to the district court's conclusion 

that the hours are "excessive and unreasonable." Memorandum, 

typescript at 8. The court gave seven separate examples of the 

alleged "outrageousness" of Mr. Epstein's claim, having to do 

with hours claimed for the review of an entry of appearance filed 

by the County Court's counsel, discovery planning, research on a 

motion to compel filed by the Court, review of the Court's motion 

for summary judgment and preparation of the response, trial 

preparation, review of trial tapes, and preparation of post-trial 

motions. The court found that "[t]hese figures are not merely 

excessive, they border on the outrageous." Id., typescript at 7. 

 Mr. Epstein challenges the court's conclusions regarding 

these various examples. In the first instance, the court deemed 

as "redundant, unnecessary or excessive" 5.5 hours for research 

on a motion to compel filed by the County Court. Memorandum, 

typescript at 6. The motion was apparently to compel Mr. 

Washington to submit to an examination by a psychologist and, 

according to Mr. Epstein, certainly required the number of hours 

claimed: 

 Plaintiff filed an answer and an eight-page memorandum 

 of law. The trial court does not explain why 5.5 hours 

 is excessive on this less than ordinary discovery 

 issue. To the contrary, research and drafting of these 

 papers would likely take a lawyer the 5.5 hours 

 claimed. 

Brief of Appellant at 24. 

 The second example given by the district court to which Mr. 

Epstein objects is time amounting to 158.2 hours spent in 

preparing for and litigating the County Court's motion for 

summary judgment. Mr. Epstein justifies the number of hours on 

the length of the County Court's motion, the number of issues it 

raised, the voluminous record and the length of his reply 

memorandum. Id. at 24-25. 

 Third, the court stated that "Epstein, an experienced 

litigator, claims 69.9 hours for unspecified 'trial preparation', 

an amount of time approximately twice as long as the trial itself 

($17,400)." Memorandum, typescript at 6. Mr. Epstein argues in 

response that "this ratio is quite reasonable and that 

experienced and successful trial lawyers spend substantially more 

time in preparation than they do in the courtroom." Brief of 

Appellant at 25. 

 Fourth, the court stated that "Epstein claims 26.1 hours in 

reviewing tapes of the trial for the preparation of post-trial 
motions, an amount of time almost as long as a minute-by-minute 

replay of the entire trial, from voir dire to verdict ($6,525)." 

Memorandum, typescript at 6. Here again, Mr. Epstein offers a 

detailed explanation for the time: 

 The motion for judgment as a matter of law was based on 

 the argument that there was insufficient evidence to 

 support the jury's verdict. To properly respond to 

 this motion, plaintiff was obligated to marshall every 

 fact and every piece of evidence that a reasonable jury 

 could have relied upon to reach its verdict. This in 

 turn required a detailed and exact review of all of the 

 testimony in the case to assemble the relevant evidence 

 that supported the verdict. 

Brief of Appellant at 26. 

 Finally, Mr. Epstein challenges findings by the district 

court regarding "some very minor categories" on the ground that 

"each is reasonable." Id. at 27. 

 Our task is not to determine whether, sitting as a court of 

first instance, we would have reached the same conclusion as the 

district court did. Rather, we only review the court's finding 

that the hours claimed by Mr. Epstein are "excessive and 

unreasonable" for clear error. While Mr. Epstein offers 

persuasive arguments to support the hours he and his colleagues 

spent on the various parts of the trial, we conclude that these 

arguments fall short of satisfying our exacting standard of 

review and therefore conclude that the district court's 

conclusion is not clearly erroneous. 

 3. Proportionality 

 The district court stated that "[b]y any standard, 

requesting that this Court approve an expenditure of $175,000 in 

fees to obtain a $25,000 verdict is nonsensical." Memorandum, 

typescript at 7. Mr. Epstein challenges this statement on the 

ground that the court's position violates Third Circuit law 

against proportionality analysis to determine the reasonableness 

of counsel fees. Brief of Appellant at 29. 

 It is true that this Court has expressed serious concerns 

with the practice of limiting an award of attorney's fees to 

maintain proportionality between the fees and the amount of 

damages awarded. See, e.g., Cunningham v. City of McKeesport, 

807 F.2d 49, 52-54 (3d Cir. 1986), cert. denied, 481 U.S. 1049 

(1987); Northeast Women's Center v. McMonagle, 889 F.2d 466, 474- 

75 (3d Cir. 1989), cert. denied, 494 U.S. 1068 (1990). However, 

before considering the legal propriety of the district court 

conducting a proportionality analysis, we must first determine 

the significance of the court's statement. This statement, 

standing alone, is somewhat ambiguous. On the one hand, it can 

certainly be read, as Mr. Epstein does, as suggesting that the 

district court was concerned with the ratio between the damages 

awarded Mr. Washington and the fees sought by Mr. Epstein and his 

colleagues, and that it cut down the fees accordingly. The 

statement could, on the other hand, reflect the court's opinion 

that Mr. Epstein failed to exercise "billing judgment." SeeHensley v. 

Eckerhart, 461 U.S. 424, 437 (1983) ("The applicant

should exercise 'billing judgment' with respect to hours 
worked"). 

 There is some support for this alternative reading. The 

court's statement came directly after its conclusion that the 

figures presented by Mr. Epstein "are not merely excessive, they 

border on the outrageous." Memorandum at 7. After making this 

finding, the court went on to explain: 

 If they were actually sent to a client who was expected 

 to pay for them, the bill would possible [sic] result 

 in that client either going bankrupt or, at a minimum, 

 finding a new attorney. By any standard, requesting 

 that this Court approve an expenditure of over $175,000 

 in fees to obtain a $25,000 verdict is nonsensical." 

Id. 

 The court then cited the court's conclusion in Oliverregarding the 

same issue that "the petition tendered by 

plaintiff's counsel is woefully deficient of the billing judgment 

that should have animated its preparation." Id. (citing Oliver 

v. Bell, No. CIV. A. 92-751 (E.D. Pa. June 30, 1994) (Order 

Memorandum)). 

 Nonetheless, in light of the district court's earlier 

comment, made while discussing the history of the case, that 

"[h]aving won a verdict of $25,000, Washington's attorney . . . 

now asks that attorneys' fees be approved in excess of seven 

times the amount of that award, $175,987.50," Memorandum at 3, we 

find the interpretation suggested by Mr. Epstein persuasive, and 

conclude that the district court did consider proportionality as 

a factor in its analysis. The two comments taken together seem 

no accident. 

 We now turn to the legal propriety of the court's action. 

Our review of the jurisprudence commences with the edicts of the 

United States Supreme Court on the issue at hand. The preeminent 

case on the subject is City of Riverside v. Rivera, 477 U.S. 561 

(1986). City of Riverside, however, offers no clear direction. 

Based on an analogy with private tort actions, the municipalitypetitioner in that case had suggested that attorney's fees in 

civil rights lawsuits "should be proportionate to the amount of 

damages a plaintiff recovers." Id. at 573 (Brennan, J., 

plurality). Justice Brennan, writing for a plurality of four, 

rejected the analogy, noting that 

 [u]nlike most private tort litigants, a civil rights 

 plaintiff seeks to vindicate important civil and 

 constitutional rights that cannot be valued solely in 

 monetary terms. . . . Regardless of the form of relief 

 he actually obtains, a successful civil rights

 plaintiff often secures important social benefits that 

 are not reflected in nominal or relatively small 

 damages awards. 

Id. at 574 (citation omitted) (emphasis added). 

 In other words, the monetary amount awarded to the plaintiff 

would not be an accurate measure of the success achieved by the 

attorneys in the case, and therefore attorney's fees assessed in 

proportion to the damage award would not adequately compensate 

the attorneys for their labor, which the plurality compared to 

that of a "private attorney general." Id. at 575 (citation 
omitted). The plurality concluded that "[a] rule of 

proportionality would make it difficult, if not impossible, for 

individuals with meritorious civil rights claims but relatively 

small potential damages to obtain redress from the courts," id.at 578, and 

for this reason rejected such a rule. 

 Justice Powell concurred in the judgment, because he saw no 

basis to reject the district court's detailed findings of fact. 

But the emphasis of his concurrence was markedly different from 

that of the plurality opinion: 

 Where recovery of private damages is the purpose of a 

 civil rights litigation, a district court, in fixing 

 fees, is obligated to give primary consideration to the 

 amount of damages awarded as compared to the amount 

 sought. In some civil rights cases, however, the court 

 may consider the vindication of constitutional rights 

 in addition to the amount of damages recovered. 

Id. at 585 (Powell, J., concurring in the judgment). In a 

footnote that received substantial attention, the Justice added, 

"[i]t probably will be the rare case in which an award of privatedamages 

can be said to benefit the public interest to an extent 

that would justify the disproportionality between damages and 

fees reflected in this case." Id. at 586 n.3. Finally, thenJustice Rehnquist dissented, joined by three other Justices, 

including Chief Justice Burger, who also wrote a separate 

dissent. 

 Shortly after the Supreme Court issued its opinion, this 

Court tackled the difficult task of sorting through City of 

Riverside's muddled outcome in Cunningham v. City of McKeesport, 

807 F.2d 49 (3d Cir. 1986), cert. denied, 481 U.S. 1049 (1987) 

[hereinafter Cunningham II]. After noting that "the Supreme 

Court plurality rejected a proportionality rule," id. at 52, we 

considered what import to give to Justice Powell's concurrence: 

 . . . Justice Powell's opinion might be read to 

 suggest that disproportionality justifies a negative 

 multiplier. 

 We refrain from inferring such a view from City of 

 Riverside, however. First, this interpretation 

 represents at most the view of a lone Justice and was 

 not endorsed by any of the other eight. . . . Second, 

 we have doubts about Justice Powell's statement that 

 only the rare case justifies disproportionate fee 

 awards. The facts of City of Riverside seem similar to 

 those of a number of  1983 cases that we have seen. . 

 . . Finally, we consider application of Justice 

 Powell's reasoning problematic. The opinion sets out 

 no method or standards by which a court might calculate 

 the public interest served by a case, evaluate that 

 interest in light of a disproportionality between 

 damages and fees, and eventually settle upon a

 particular negative multiplier. In the absence of an 

 explicit mandate, we are reluctant to begin the 

 difficult task of developing standards by which we 

 might incorporate proportionality principles into the 
 attorney's fee calculus. 

Cunningham II, 807 F.2d at 53-54 (footnote omitted); see alsoNortheast 

Women's Center, 889 F.2d at 474-75 (noting that the

"Supreme Court in City of Riverside [rejected] the 

proportionality rule in the civil rights context."). 

 For the reasons articulated by the plurality in City of 

Riverside and by this Court in Cunningham II, we hold today that 

a court may not diminish counsel fees in a section 1983 action to 

maintain some ratio between the fees and the damages awarded. 

This is not to say that the amount of damages is irrelevant to 

the calculation of counsel fees. To the contrary, we recently 

recognized that "the amount of the compensatory damages award may 

be taken into account when awarding attorneys' fees to a civil 

rights plaintiff." Abrams v. Lightolier, 50 F.3d 1204, 1222 (3d 

Cir. 1995). But as the context of our statement in Abrams makes 

clear, the reason why the damage amount is relevant is not 

because of some ratio that the court ought to maintain between 

damages and counsel fees. Rather, the reason has to do with the 

settled principle, which we discuss hereinafter, that counsel 

fees should only be awarded to the extent that the litigant was 

successful. The amount of damages awarded, when compared with 

the amount of damages requested, may be one measure of how 

successful the plaintiff was in his or her action, and therefore 

"may be taken into account when awarding attorneys' fees to a 

civil rights plaintiff." Id. 

 The County Court attempts to refute Mr. Epstein's arguments 

on two grounds. First, it argues that the district court did notapply a 

"strict proportionality test": "[h]ad the lower court 

followed the strict 'proportionality' rule discussed in Abrams, 

the court would not have awarded fees in excess of the damage 

award." Brief of Appellee at 23. By a "strict proportionality 

test," the County Court apparently refers to a rule whereby 

counsel fees cannot exceed the amount of damages awarded. This 

Court clearly rejected such a test in Abrams, 50 F.3d at 1222 

("there is no rule that the fees award may be no larger than the 

damages award") (citing Hensley v. Eckerhart, 461 U.S. 424 

(1983)), and it is clear that the district court did not apply 

such a test. Today we embrace the broader proposition that the 

district court cannot adjust counsel fees to maintain a certain 

ratio between the fees and damages -- to insure, for instance, 

that fees not exceed three times the amount of damages. That is 

just the type of analysis into which the district court seems to 

have entered. 

 The second argument advanced by the County Court is that 

even if the district court did conduct a proportionality analysis 

(albeit not what it calls a "strict" one), it did so correctly. 

In support of this proposition, the County Court suggests that 

"[u]nder Hensley, the district court is required to consider 'the 

relationship between the extent of success and the amount of the 

fee award.'" Brief of Appellee at 23 (quoting Hensley, 461 U.S. 

at 438). But Hensley does not stand for the proposition that the 

court should adjust counsel fees to reflect a certain ratio 

between fees and damage awards; rather, it stands for the 

proposition, which we discussed in an earlier paragraph, that the 
amount awarded in counsel fees should reflect the extent to which 

the litigant was successful. See Hensley, 461 U.S. at 440 ("A 

reduced fee award is appropriate if the relief, however 

significant, is limited in comparison to the scope of the 

litigation as a whole.") (emphasis added). 

 It is clear that the district court, in the disputed 

statement, concluded that it was "nonsensical" to award fees of 

$175,000 for a judgment of 25,000 because the request was 

disproportionate with what the court considered a more 

appropriate ratio. (Indeed, the court turned to the "success" 

analysis substantially later in its opinion.) We hold that the 

court's consideration of the proportionality of the damages to 

the fee award was legal error. Therefore, as this legal error 

affected the district court's determination to "decrease the 

hours by one-half on the grounds that they are excessive and 

unreasonable," Memorandum at 8, we must remand to the district 

court for it to make only such part of that reduction as was not 

due to proportionality. Above, we also concluded that we must 

remand this same determination so that any reduction due to 

specificity can also be eradicated. 

 4. Success 

 Finally, the district court diminished Mr. Epstein's counsel 

fees by another fifty percent on the basis that "Washington 

hardly won a decisive victory in this case." Memorandum, 

typescript at 8. As the court explained, 

 Five of Washington's nine claims did not survive a 

 summary judgment motion. At the time of trial, 

 Washington requested a total of $661,756.02 in damages, 

 a figure which did not include mental anguish, punitive 

 damages, and prejudgment interest, and also did not 

 include the $103,000 Washington claimed in lost wages. 

 The jury ruled against his primary claim, racial 

 discrimination, and awarded him what amounted to a 

 nominal recovery of $25,000 on his retaliation claim. 

Id. 

 In addition, the district court did not apply the reduction 

to the time spent in preparation of the fee petition, but fully 

disallowed time claimed for preparation of a motion to amend the 

judgment to this Court which was denied. Id., typescript at 9. 

 Mr. Epstein contends that the court's analysis is based on a 

"clear error of law" because "by persuading the jury to find for 

the plaintiff on the racial retaliation claim, plaintiff 

prevailed on a central theory of his case." Brief of Appellant 

at 30. Mr. Epstein further argues that the initial claim of 

racial discrimination "was so clearly related to the winning 

claim, that as a matter of law, there can be no reduction of fees 

for the work done since the time was necessarily spent on both 

issues." Id. at 30-31. As he explains, 

 [A]ll of the evidence that was produced regarding the 

 race discrimination claim was necessary in the

 litigation of the retaliation claim. The retaliation 

 was undertaken to punish plaintiff for his assertion of 

 race discrimination, and to properly show to the jury 

 the nature of the retaliation, the full context, 
 including the alleged race discrimination, had to be 

 proven. 

Id. at 32. 

 Finally, Mr. Epstein argues that "the fact that the jury 

awarded $25,000 is not a proper basis for reducing the hours or 

the lodestar on the theory that the result was not a good one for 

the plaintiff." Id. 

 We are unconvinced by Mr. Epstein's arguments. It is well 

established that "the court can reduce the hours claimed by the 

number of hours 'spent litigating claims on which the party did 

not succeed and that were "distinct in all respects from" claims 

on which the party did succeed.'" Rode, 892 F.2d at 1183 

(quoting Institutionalized Juveniles v. Secretary of Public 

Welfare, 758 F.2d 897, 919 (3d Cir. 1985) (quoting Hensley, 461 

U.S. at 440)). Notwithstanding Mr. Epstein's contentions, we 

conclude that the district court did not commit error when it 

reduced Mr. Epstein's fees for his failure to prevail on one of 

his two central claims, that of discrimination. In addition, the 

alleged relatedness between the two general claims is too tenuous 

to support a finding of error. Therefore, we conclude that the 

court was well within its broad discretion when it discounted the 

fees by fifty percent for partial lack of success. 

 IV. Conclusion 

 In light of the foregoing, we will vacate the district 

court's award of attorneys' fees and remand for further 

consideration consistent with this opinion. In particular, we 

will vacate the district court's assessment of Mr. Epstein's 

hourly rate, and remand for a new calculation in accordance with 

this opinion; in addition, we will vacate the district court's 

reduction of the number of hours by one half for their being 

"unreasonable and excessive," and direct the court to consider 

anew whether that reduction is warranted in light of our 

decision. 

Washington v. Philadelphia County Court of Common Pleas, No. 95- 

1613 

ALDISERT, Circuit Judge, Concurring and Dissenting.

 Following our seminal attorneys' fees cases in Lindy Bros. 

Builders, Inc. v. American Radiator & Standard Sanitary Corp. 

(Lindy I) , 487 F.2d 161 (3d Cir. 1973), and Lindy Bros. 

Builders, Inc. v. American Radiator & Standard Sanitary Corp. 

(Lindy II), 540 F.2d 102 (3d Cir. 1976) (in banc), this court 

carefully articulated the standard of review in attorney's fees 

cases: 

 [A]n award of reasonable attorneys' fees is within the 

 district court's discretion. Thus our standard of 

 review is a narrow one. We can find an abuse of 

 discretion if no reasonable man would adopt the 

 district court's view. If reasonable men could differ 

 as to the propriety of the action taken by the trial 

 court, then it cannot be said that the trial court 

 abused its discretion. We may also find an abuse of 
 discretion when the trial court uses improper standards 

 or procedures in determining fees, or if it does not 

 properly identify the criteria used for such 

 determination. 

Silberman v. Bogle, 683 F.2d 62, 64-65 (3d Cir. 1982) (quotations 

and citations omitted); see also Deisler v. McCormack Aggregates 

Co., 54 F.3d 1074, 1087 (3d Cir. 1995). What divides this panel 

is not the selection of this standard of review as the governing 

legal precept; here, there are no competing precepts. SeeMajority 

typescript at 6 ("We review the reasonableness of an 

award of attorney's fees for an abuse of discretion.") (citation 

omitted). In agreement on the controlling major premise, then, 

we differ only as to what it means. Such interpretation, 

however, implicates questions of both legal philosophy and 

jurisprudence. 

 At bottom, this case is about whether an appellate court 

appreciates the allocation of competence between trial courts and 

reviewing courts. To be sure, statements of deference by 

appellate courts to district judges appear in this court's 

dispositions. See, e.g., Majority typescript at 6. But quoting 

a standard of review and respecting it are different matters. 

See, e.g., Majority typescript at 11-13, 17-25. We must be 

vigilant of this court's increasing proclivity to deny 

substituting its judgment for that of the district court, but 

then to proceed with the tack that it expressly renounces. In 

this regard I am reminded of Byron's account of Julia: "And 

whispering 'I will ne'er consent' -- consented." Byron, Don 

Juan, Canto I, St. 117 (quoted in R. Aldisert, The Judicial 

Process 717 (2d ed. 1996)). 

 I. 

 I first indicate those portions of the majority's opinion of 

which I am in accord. I agree that the district court did not 

clearly err in finding that the hours claimed by Mr. Epstein were 

"excessive and unreasonable." Majority typescript at 17. I also 

agree "that the district court was well within its broad 

discretion when it discounted the fees by fifty percent for 

partial lack of success." Majority typescript at 27. 

 Further, I agree that in light of the district court's 

reliance on the district court opinion, subsequently reversed by 

Griffiths v. Signa Corp., Nos. 94-2090 and 94-2091 (3d Cir. Nov. 

30, 1995) (unpublished), we should remand for reconsideration of 

the attorney's reasonable hourly rate. Thus, I concur in the 

remand order. 

 Upon careful examination of the attorneys' time sheets, seeA91-A129, 

I too have trouble with the district court's conclusion 

that "[m]any of the hours set forth in the fee petition are not 

properly documented." Dist. Ct. Op. at 5. Indeed, I agree with 

the majority's reading of Rode v. Dellarciprete, 892 F.2d 1177 

(3d Cir. 1990), which held that billing records such as those at 

issue here need not document "the exact number of minutes spent 

nor the precise activity to which each hour was devoted nor the 

specific attainments of each attorney." Id. at 1190 (quotation 

and citation omitted); see Keenan v. City of Philadelphia, 983 
F.2d 459, 473 (3d Cir. 1992); see also Majority typescript at 13- 

15. However, the statement of the district court giving rise to 

this discussion of specificity, reprinted in the margin, 

appears in a single paragraph of a much larger discussion under 

the heading "HOURS REASONABLY EXPENDED". That section of the 

district court opinion contained an independent alternative 

justification for reducing the number of hours -- "that many of 

the billable hours requested are redundant, unnecessary or 

excessive." Dist. Ct. Op. at 5. The majority has no quarrel 

with this alternative basis. See Majority typescript at 17 

("[W]e only review the court's finding that the hours claimed by 

Mr. Epstein are 'excessive and unreasonable' for clear error. 

While Mr. Epstein offers persuasive arguments to support the 

hours he and his colleagues spent on the various parts of the 

trial, we conclude that these arguments fall short of satisfying 

our exacting standard of review and therefore conclude that the 

district court's conclusion is not clearly erroneous."). Thus, 

although the majority remand based on the District Court's 

criticism of the specificity of the documentation, in light of 

the alternative justification for reducing the number of hours, I 

dissent from the remand order based on specificity.

 II. 

 I turn next to the majority's contention that the district 

court "diminish[ed] counsel fees ... to maintain some ratio 

between the fees and damages awarded." Majority typescript at 

22. For the reasons that follow, I do not agree that the 

district court impermissibly considered the proportionality of 

the damages in diminishing the requested fee. 

 I turn first to the statement of the district court upon 

which the majority premise their reasoning. The district court 

stated that "requesting that this Court approve an expenditure of 

$175,000 in fees to obtain a $25,000 verdict is nonsensical." 

Dist. Ct. Op. at 7. 

 To be sure, this court has expressed serious concerns with 

the practice of limiting an award of attorneys' fees to maintain 

proportionality between the fees and the amount of damages 

awarded. See, e.g., Cunningham v. City of McKeesport, 807 F.2d 

49, 53-54 (3d Cir. 1986), cert. denied, 481 U.S. 1049 (1987); 

Northeast Women's Center v. McMonagle, 889 F.2d 466, 474-75 (3d 

Cir. 1989), cert. denied, 494 U.S. 1068 (1990). Although the 

district court's statements, in and of themselves, have the 

potential of being interpreted as implying that the district 

court improperly reduced the fees to maintain proportionality, we 

must consider the context in which the district court made them. 

 The district court offered the "nonsensical" description 

after concluding that the fees submitted by Appellant "are not 

merely excessive, they border on the outrageous." Dist. Ct. Op. 

at 7. The district court explained that: 

 If the[se figures] were actually sent to a client who 

 was expected to pay for them, the bill would possibl[y] 

 result in that client obviously going bankrupt or, at a 

 minimum, finding a new attorney. 

Dist. Ct. Op. at 7. Accordingly, taken in context, the district 
court's statement also reflects a determination that Appellant 

failed to exercise "billing judgment." See Hensley v. Eckerhart, 

461 U.S. 424, 437 (1983) ("The applicant should exercise 'billing 

judgment' with respect to the hours worked."). Indeed, after 

making these statements, the district court added that "the 

petition tendered by plaintiff's counsel is woefully deficient of 

the billing judgment that should have animated its preparation." 

Dist. Ct. Op. at 7 (citing Oliver v. Bell, No. CIV. A. 92-751 

(E.D. Pa. June 30, 1994) (Order Memorandum)). 

 The majority agree that alternate inferences can be drawn 

from the ambiguous statement of the district court. See Majority 

typescript at 18 ("The statement could, on the other hand, 

reflect the court's opinion that Mr. Epstein failed to exercise 

'billing judgment.' There is some support for this alternative 

reading..."). Yet, given two reasonable interpretations of an 

ambiguous statement, the majority reject one reasonable 

interpretation, in favor of another reasonable interpretation. 

This a reviewing court may not do. Indeed, "[i]f reasonable 

people could differ as to the propriety of the action taken by 

the trial court, then it cannot be said that the trial court 

abused its discretion." Deisler, 54 F.3d at 1087 (quotation and 

citation omitted). 

 Moreover, even using the majority's preferred reasonable 

interpretation of the district court's statement, the majority do 

not identify how the district court deployed the forbidden ratio. 

And indeed, even after the reductions, the fee awarded by the 

district court still exceeded the damages by a ratio of 1.216 to 

1 ($30,389.63 to $25,000.00). This hardly bespeaks a rigid 

mathematical calculation by the district court. 

 Furthermore, the majority construct an unworkable -- if not 

implausible -- schemata for determining attorneys' fees. They 

condemn any relationship between fees and recovery, while making 

it clear that the relationship between fees and recovery remains 

extremely relevant in considering the plaintiff's success. SeeMajority 

typescript at 23; see also Lindy I, 487 F.2d at 168 ("In 

evaluating the quality of an attorney's work in a case, the 

district court should consider ... the amount of recovery 

obtained."). Although the majority purport to announce a new 

rule of law that forbids consideration of proportionality between 

the damage award and attorneys' fees, the currency value of this 

initial public offering is seriously discounted by recognizing 

that at least three clear exceptions inhere in it: one, in 

measuring success, see Abrams v. Lightolier, 50 F.3d 1204 (3d 

Cir. 1995); Majority typescript at 22; two, when considering 

billing judgment, Hensley v. Eckerhart, 461 U.S. 424 (1983); and 

three, as recounted above, in evaluating the quality of an 

attorney's work. 

 Thus, the majority's new offspring is born with at least 

three bar sinisters on its escutcheon, and staggering through its 

uneasy fledgling steps, will no doubt cause confusion within 

district courts and, most assuredly, will generate litigation. 

Especially troubling here is that the majority fail even to 

disclose where or how the district court employed a

proportionality ratio. To borrow from Lord Devlin, "I confess 
that I approach the investigation of this legal proposition with 

a prejudice in favour of the idea that there may be a flaw in the 

argument somewhere." St. John Shipping Corp. v. Joseph Rank, 1 

Q.B. 267, 282 (1957). Accordingly, I dissent in all respects 

from the majority's conclusion on proportionality. 

 III. 

 I do not come as a stranger to attorney fee jurisprudence in 

this court. Twenty years ago, I authored the in banc opinion in 

Lindy II, wherein I stated the views of our court at that time: 

 We find it necessary also to observe that we did not 

 and do not intend that a district court, in setting an 

 attorneys' fee, become enmeshed in a meticulous 

 analysis of every detailed facet of the professional 

 representation. It was not and is not our intention 

 that the inquiry into the adequacy of the fee assume 

 massive proportions, perhaps even dwarfing the case in 

 chief. Once the district court determines the

 reasonable hourly rates to be applied, for example, it 

 need not conduct a minute evaluation of each phase or 

 category of counsel's work. 

Lindy II, 540 F.2d at 116. 

 Whatever had been the intention of the full court in 1976, 

the history of the past decades demonstrates that our district 

judges today have "become enmeshed in a meticulous analysis of 

every detailed facet of the professional representation," as 

evidenced by the opinions in this case. So also this court has 

become enmeshed. Perhaps the time has arrived for us to have 

the full court revisit basic concepts of our attorneys' fees 

jurisprudence in order to furnish clearer guidance, and 

hopefully, minimize the atrocious fulmination of these cases, 

here and in the district court. 

 Drawing from my personal experience of almost 30 years on 

this court, and my current practice of sitting in three or four 

circuits each year, I beg indulgence to permit a personal 

expression of what troubles me in examining pertinent cases. 

Appellate courts seem to have lost respect for the narrow review 

encompassed in reviewing an exercise of discretion. Either 

because they have a hunger to get involved in the action, or 

because they disagree viscerally with fees set by the district 

courts, appellate judges introduce a devious device to broaden 

appellate review: new standards or criteria for district courts 

to follow meticulously. 

 What has emerged is what Holmes called "Delusive exactness 

[,] a source of fallacy throughout the law." In this practice, 

newly created "standards and criteria" wag the tail of genuine 

exercise of discretion. And to argue against this, as I do, is 

to inveigh against Mom and Apple pie because everybody knows that 

"standards and criteria" are good for you. As indeed they are in 

most circumstances, but not if they destroy the exercise of 

discretion. These standards and criteria create an environment 

where an appeal is taken every time a district judge fails to 

kiss the book or to genuflect properly. 

 Most importantly, appeals challenging deviations from these 
standards and criteria arrive in the appellate court with a 

fundamental difference: the standard of review is not a limited 

review of exercise of discretion or the more restricted clear 

error, but plenary. See Keenan v. City of Philadelphia, 983 F.2d 

459, 472 (3d Cir. 1992) (the question of what standards to apply 

in calculating an award of attorney's fees is a legal question 

subject to plenary review). Thus, instead of playing a limited 

role in the determination of attorneys' fees in limited review of 

discretion, the appellate courts, like the proverbial camel, have 

not only stuck their noses under the district courts' tent, but 

they are fully inside ranging around in turf that properly 

belongs to the district courts. 

 Almost 40 years ago a youthful Charles Alan Wright, 

America's premier federal courts expert, now president of the 

American Law Institute, wrote a very perceptive law review 

article entitled The Doubtful Omniscience of Appellate Courts 

in which he decried the development in "which trial courts [are] 

losing most of their power [and] the appellate courts have drawn 

unto themselves practically all the power of the judicial 

system." Professor Wright noted: 

 The principal consequences of broadening appellate 

 review are two. Such a course impairs the confidence 

 of litigants and the public in the decisions of the 

 trial courts, and it multiplies the number of 

 appeals.... Every time a trial judge is reversed, every 

 time the belief is reiterated that appellate courts are 

 better qualified than trial judges to decide what 

 justice requires, the confidence of litigants and the 

 public in the trial courts will be further impaired. 

 Under any feasible or conceivable system, our trial 

 courts must always have the last word in the great bulk 

 of cases. I doubt whether there will be much 

 satisfaction with the judgments of trial courts among a 

 public which is educated to believe that only appellate 

 judges are trustworthy ministers of justice. 

 I associate fully with Professor Wright's observations and 

find his commentary apropos and germane to current attorneys' 

fees jurisprudence. I believe that we should return to the basic 

concepts of discretionary review we set forth in Lindy II: "If 

reasonable men could differ as to the propriety of the action 

taken by the trial court, then it cannot be said that the trial 

court abused its discretion," 540 F.2d at 115, and cease the 

manufacturing of "standards and procedures" in order to bring 

about an abuse of discretion as a matter of law because the 

district courts failed, directly or indirectly, to cross every 

"t" and dot every "i" to the satisfaction of an appellate judge. 

We should free the district courts in attorneys fees cases from 

the solemn high mass ritual as is now required in the reception 

of guilty plea under Criminal Rule 11, or the judiciary's nit 

picking version of the USGA rules of golf---Sentencing 

Guidelines. As Professor Wright comments, "If trial judges are 

carefully selected, as in the federal system, it is hard to think 

of any reason why they are more likely to make errors of judgment 

than are appellate judges." 
 Indeed, there are several reasons why district judges are 

much more capable of exercising broad discretion. They are on 

the scene. They smell the smoke of battle. Indeed, Professor 

Maurice Rosenberg has identified four reasons that support 

vesting discretion in trial courts. The first three are lesser 

reasons: 

 

 One is the plain urge to economize on judicial 

 energies. Appeal courts would be swamped to the 

 point of capsizing if every ruling by a trial 

 judge could be presented for appellate review. 

 * * * 

 

 A second reason is maintaining morale. A trial

 judge ... would have an oppressive sense that 

 appellate Big Brothers [and Sisters] were ever 

 watching, peering over the trial bench, waiting 

 for the harried and hurried trial judge to lapse 

 into mortal fallibility. 

 

 The third reason is ... finality. The more 

 reverse-proof the trial judge's rulings, the less 

 likely the losing party is to test them on appeal 

 and the sooner the first adjudication becomes 

 accepted and the dispute tranquilized. 

Maurice Rosenberg, Judicial Discretion of the Trial Court, Viewed 

From Above, 22 Syracuse L. Rev. 635, 660-61 (1971). Then follows 

what he calls the most pointed and helpful reason: 

 

 [T]he superiority of his [or her] nether position. 

 It is not that he [or she] knows more than his [or 

 her] loftier [brothers and sisters]; rather [the 

 trial judge] sees more and senses more. In the 

 dialogue between the appellate judges and the 

 trial judge, the former often seem to be saying: 

 "You were there. We do not think we would have 

 done what you did, but we were not present and we 

 may be unaware of significant matters, for the 

 record does not adequately convey to us all that 

 went on at the trial. Therefore, we defer to you." 

Id. at 663. So long as the jurisprudence has conferred 

discretionary power in the district courts, we should respect it. 

We should not construct obstacles to its use in the form of 

artificial standards and criteria, the breach of which we deem an 

abuse of discretion as a matter of law, thereby creating a 

philosophical oxymoron by savaging traditional notions of 

discretionary powers. 

 It is for the foregoing reasons that I dissent from the 

majority approach, except in those areas set forth above, in 

which I concur.