The facts related to the underlying litigation are addressed more thoroughly in our 1

Memorandum and Order dated November 12, 2003 (Doc. No. 18), as well as our Memorandum

and Order dated March 31, 2006 (Doc. No. 44).

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ELIZABETH C. BARRETT, et al., : 

: CIVIL ACTION

 v. :

 : NO. 03-4978

WEST CHESTER UNIVERSITY :

OF PENNSYLVANIA OF THE :

STATE SYSTEM OF HIGHER :

EDUCATION, et al. :

SURRICK, J. APRIL 24, 2009

MEMORANDUM

Presently before the Court is Plaintiffs’ Motion for a Reconsideration and Amendment of

Award of Attorney’s Fees. (Doc. No. 45.) For the following reasons, Plaintiffs’ Motion will be

denied.

I. BACKGROUND

A. Underlying Litigation1

On April 28, 2003, West Chester University (“WCU”) announced its decision to

eliminate its women’s gymnastics and men’s lacrosse programs. At the same time, WCU stated

that it intended to add women’s golf to its athletic program. 

A concerned parent of one of the eight members of the women’s gymnastics team

contacted Trial Lawyers for Public Justice (“TLPJ”), a public interest law firm based in

Washington, D.C., which ultimately took on the case. TLPJ contacted Hangley Aronchick Segal

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& Pudlin (“Hangley firm”) and engaged the firm as co-counsel in the matter. TLPJ has been

involved in Title IX litigation since 1985 when Arthur Bryant, the Executive Director of TLPJ,

served as lead counsel in Haffer v. Temple University, 688 F.2d 14 (3d Cir. 1982). (Doc. No. 32,

Ex. 2 (hereinafter, “Bryant Decl.”).) William Hangley, a founder and shareholder of the Hangley

firm, is an experienced litigator with experience in Title IX litigation, having participated in the

Haffer case. (Doc. No. 32, Ex. 4 (hereinafter, “Hangley Decl.”).)

As a public interest law firm, TLPJ does not charge its clients for services rendered but

does seek attorney’s fees pursuant to fee-shifting statutes. (Bryant Decl.) The Hangley firm,

which does charge clients for its services, agreed to work on this case because of the “important

social value in enforcing Title IX.” (Hangley Decl.) The firm “viewed the risk of loss and the

certainty that any payment would be delayed as a pro bono contribution on the firm’s part.” (Id.)

Plaintiffs’ attempts to have the gymnastics team reinstated without court involvement

failed, and on September 4, 2003, Plaintiffs filed a lawsuit along with a motion for a preliminary

injunction. Plaintiffs claimed that Defendants’ elimination of the women’s gymnastics team

violated Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681, et seq.

After the parties fully briefed the issues and following a hearing that spanned four days,

we granted Plaintiffs’ request for a preliminary injunction and ordered Defendants to

immediately reinstate the women’s gymnastics team. See generally Barrett v. W. Chester Univ.

of Pa., No. 03-4978, 2003 U.S. Dist. LEXIS 21095 (E.D. Pa. Nov. 12, 2003) (hereinafter, “Doc.

No. 18”). Following our decision, the parties agreed to a settlement, which provided that the

preliminary injunction would become permanent and that all claims that were not related to the

discontinuance of the gymnastics team would be dismissed without prejudice. (Doc. No. 29.) 

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The parties entered into an additional, separate agreement wherein Plaintiffs agreed not to seek a

portion of the fees for work that their attorneys performed from January 1, 2004, through

completion of the settlement negotiations. (Hangley Decl. ¶ 32; Doc. No. 32, Ex. 5, ¶ 50

(hereinafter, “McKee Decl.”).) Plaintiffs also agreed to forego a portion of the costs that they

incurred in preparing their fee petition. (Id.)

B. Fee Petition

On June 21, 2004, Plaintiffs requested attorney’s fees from WCU in the amount of

$207,609.50 plus costs in the amount of $12,477.82, for a total of $220,087.32, pursuant to 42

U.S.C. § 1988, 28 U.S.C. §§ 1821, 1920, and Federal Rule of Civil Procedure 54. (See Doc. No.

32.) 

Defendants objected to these totals, contending that the number of hours spent on the

litigation and the hourly rate of some of Plaintiffs’ attorneys were unreasonable. Defendants

contended that the costs should be reduced and suggested that a reasonable figure for attorney’s

fees would be $81,858.10. (Doc. No. 35 at 55-58.)

C. Memorandum and Order of March 31, 2006

In a Memorandum and Order dated March 31, 2006, we granted in part and denied in part

Plaintiffs’ motion for attorney’s fees and costs. See Barrett v. W. Chester Univ., No. 03-4978,

2006 U.S. Dist. LEXIS 15332 (E.D. Pa. Mar. 31, 2006) (hereinafter, “Doc. No. 44”).) We stated

that:

[o]ur task is to carefully review the fee request and determine whether the evidence

presented supports the request. In so doing, we will consider the public nature and

financial circumstances of Defendants. Alizadeh v. Safeway Stores, 910 F.2d 234,

238 (5th Cir. 1990) (while the non-prevailing party’s financial condition is not

appropriate to consider in determining whether to award attorney’s fees, it is

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appropriate to consider when determining the amount of the attorney’s fees). In a

case like this, where the award of attorney’s fees will affect the public treasury and

will have a direct impact on the students at the university, our review must be

particularly careful. See Keyes v. Sch. Dist. No. 1, Denver, Colo., 439 F. Supp. 393,

415 (D. Colo. 1977) (in school desegregation case, court considers the fact that “the

very entity mandated to restructure its school system . . . will have to further expend

public funds for attorneys who brought the restructuring to fruition”).

(Doc. No. 44 at 4-5 (emphasis in original).) After establishing a lodestar – the product of the

reasonable number of hours worked and the rate per hour – we considered whether that figure

was reasonable or whether a downward adjustment was appropriate. (Id. at 33.) As we did when

granting the preliminary injunction, we noted that WCU is a public university that is supported

by the taxpayers of Pennsylvania and federal funds. (Id.) Moreover, we noted that an award of

attorneys’ fees would negatively impact the students of WCU, including the Plaintiffs for whose

benefit the preliminary injunction was imposed. (Id. at 34.) With these factors in mind and

considering the fact that counsel had accepted representation of Plaintiffs as a public service, we

stated: “[W]e are satisfied that a reduction of the lodestar calculation by a figure of fifteen

percent (15%) is fair, reasonable, and appropriate.” (Id. at 35.) Counsel fees and costs in the

total amount of $148,472.59 were awarded.

On April 14, 2006, Plaintiffs filed the instant Motion for Reconsideration, arguing that

“the Court erred when it reduced the lodestar by 15 percent.” (Doc. No. 45.) 

II. LEGAL STANDARD

“The purpose of a motion for reconsideration is to correct manifest errors of law or fact or

to present newly discovered evidence.” Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.

1985). A motion for reconsideration should be granted only upon (1) the availability of new

evidence; (2) an intervening change in the law; or (3) the need to correct a clear error of law or

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prevent a manifest injustice. See Marriott Senior Living Quarters, Inc., v. Springfield Twp., No.

97-3660, 2000 U.S. Dist. LEXIS 17529, at *4 (E.D. Pa. Nov. 20, 2000). “Dissatisfaction with

the Court’s ruling is not a proper basis for reconsideration.” Id. (citing Burger King Corp. v.

New England Hood & Duct Cleaning Co., No. 98-3610, 2000 U.S. Dist. LEXIS 1022, at *2

(E.D. Pa. Feb. 4, 2000)); see also Glenolden Energy Co. v. Borough of Glenolden, 836 F. Supp.

1109, 1122 (E.D. Pa. 1993) (finding that a motion for reconsideration is not properly grounded

on request to rethink a decision the court has already made). A motion for reconsideration may

not be used as a vehicle to assert new arguments that could have been but were not previously

presented to the court. See Assisted Living Group, Inc., v. Upper Dublin Twp., No. 97-3427,

1997 U.S. Dist. LEXIS 19554, at *4-5 (E.D. Pa. Dec. 8, 1997). Due to the strong interest in the

finality of judgments, courts should grant motions for reconsideration sparingly. See Slagan v.

John Whitman & Assoc., Inc., No. 97-3961, 1997 U.S. Dist. LEXIS 14910, at *1 (E.D. Pa. Sept.

26, 1997). In considering the instant motion for reconsideration, we must determine whether (1)

a clear error of law or manifest injustice was committed; (2) there has been an intervening change

in controlling law; or (3) new evidence has become available.

III. DISCUSSION

Plaintiffs argue in their motion for reconsideration that, in order to prevent manifest

injustice, there is a need to correct clear errors of law and fact in our March 31, 2006

Memorandum and Order. Plaintiffs contend that (1) the Court is bound by Third Circuit

precedent that holds “that a non-prevailing defendant’s financial circumstances may not be

weighed when determining attorney’s fees under Section 1988, nor may fees be reduced because

the attorneys have taken a lawsuit on as a matter of public interest,” (2) the Court’s decision

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“represents a clear error of law because Defendants did not raise these objections to Plaintiffs’

fee application, and the Court may not sua sponte reduce fees on grounds Defendants did not

raise,” and (3) “the reduction would be manifestly unjust, since it would burden Plaintiffs with

Defendants’ own decision to risk taxpayer dollars when they refused Plaintiffs’ repeated pleas to

restore the gymnastics team and avoid litigation.” (Doc. No. 45 at 2.) 

We disagree. We are satisfied that our decision to reduce the lodestar amount by fifteen

percent was reasonable and justified. The Third Circuit has instructed district courts to adopt “a

positive and affirmative function in the fee fixing process.” Maldonado v. Houstoun, 256 F.3d

181, 184 (3d Cir. 2001), cert. denied, 526 U.S. 1130 (1999). Supreme Court case law instructs

district courts to analyze the reasonableness of attorneys’ fees in light of the following twelve

factors: 

(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the

skill required to perform the legal service properly; (4) the preclusion of employment

by the attorney due to the acceptance of the case; (5) the customary fee; (6) whether

the fee is fixed or contingent; (7) time limitations imposed by the client or the

circumstances; (8) the amount involved and the results obtained; (9) the experience,

reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the

nature and length of the professional relationship with the client; and (12) awards in

similar cases.

Hensley v. Eckerhart, 461 U.S. 424, 430 n.3 (1983).

We assess the reasonableness of attorney’s fees by applying the “lodestar” formula, which

multiplies “the number of hours reasonably expended by a reasonable hourly rate.” Maldonado,

256 F.3d at 184. Having calculated the lodestar, “the resulting product is presumed to be the

reasonable fee to which counsel is entitled.” Id. (quoting Pennsylvania v. Del. Valley Citizens’

Council for Clean Air, 478 U.S. 546, 564 (1986)). Nevertheless, “the district court has the

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discretion to make certain adjustments to the lodestar.” Rode v. Dellarciprete, 892 F.2d 1177,

1183 (3d Cir. 1990); see also Hughes v. Repko, 578 F.2d 483, 488 (3d Cir. 1978) (stating that

after a district court calculates the lodestar, “the court must decide whether the lodestar itself, or

some greater or lesser sum, is a reasonable fee”).

As described in our Memorandum of March 31, 2006, we took the Hensley factors into

consideration in reaching the lodestar figure. Even after reducing the number of hours and rate

per hour requested by Plaintiffs’ counsel, however, we found that the resulting figure did not

fairly reflect the fact that the taxpayers of Pennsylvania, as well as WCU students, would

ultimately be responsible for the large attorneys’ fee award. We were concerned that WCU was a

public university which was facing major budgetary concerns. In fact, budgetary concerns were a

major factor in the decision to eliminate the gymnastics team in the first instance. We recognized

that during early 2003, WCU faced significant financial problems, as did many other public

universities. When WCU foresaw a five percent reduction in its state funding, the Office of

Student Affairs, with the Athletic Department being its largest sub-division, was faced with the

challenge of cutting $260,000.00 from its budget. The Athletic Department was asked to absorb

between $95,000.00 and $98,000.00 of those cuts. Such financial circumstances meant that the

individuals that would be most affected by WCU’s payment of a large attorneys’ fee would be

the WCU students. It seems obvious that the financial circumstances at WCU would be no better

now.

In Choike v. Slippery Rock University of Pennsylvania, No. 06-622, 2007 U.S. Dist.

LEXIS 78148 (W.D. Pa. Oct. 22, 2007), the district court considered a Title IX case involving a

public university and decided that reducing the lodestar was not appropriate. Id. at *53-55. The

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court considered our March 31, 2006 decision, but factually distinguished the two cases. Id. The

court found that “a closer review of the evidence reveals that the ‘financial plight’ was not the

real cause of SRU’s noncompliance with Title IX.” Id. at *54. Interestingly, the court stated: 

“Had noncompliance with Title IX been limited to this period of time, I likely would have

reduced the lodestar as did the Barrett court.” Id.

The fact that we granted the preliminary injunction reflects our conclusion that economic

distress does not justify federal civil rights violations. Moreover, we did not find that WCU’s

financial crisis was a “special circumstance” that wholly excused it from paying attorneys’ fees. 

Nevertheless, we felt and continue to feel that it is a relevant factor to consider when determining

the reasonableness of the attorneys’ fees under the particular circumstances of this case. See

Roth v. Green, 466 F.3d 1179, 1194 (10th Cir. 2006) (“‘[A]ll the courts of appeals which have

addressed the issue have concluded that a nonprevailing [party’s] ability to pay is not a proper

factor to consider in determining whether to award attorneys’ fees against [the non-prevailing

party], but may be considered when determining the amount of the attorneys’ fees to be awarded

against that party.’” (quoting Wolfe v. Perry, 412 F.3d 707, 723-24 (6th Cir. 2005))) (emphasis in

original), cert. denied, 128 S. Ct. 69 (2007); Alizadeh v. Safeway Stores, 910 F.2d 234, 238 (5th

Cir. 1998) (holding that while the non-prevailing party’s financial condition is not appropriate to

consider in determining whether to award attorney’s fees, it is appropriate to consider when

determining the amount of the attorney’s fees); Moosa v. Dolan Foster Enters., No. 95-03099,

1998 U.S. Dist. LEXIS 8609, at *28 (N.D. Cal. Jan. 13, 1998) (“The court may not consider [the

non-prevailing party’s] ability to pay in deciding whether to award attorneys’ fees, but it may be

a valid factor in determining the amount of fees to be awarded.”); Moore v. County of Muskegon,

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No. 93-236, 1993 U.S. Dist. LEXIS 18879, at *7 (W.D. Mich. Dec. 14, 1993) (“‘Because fees

are at bottom an equitable matter, . . . the courts should not hesitate to take the relative wealth of

the parties into account.’” (quoting Rogers v. Kroger Co., 586 F. Supp. 597, 601 (S.D. Tex.

1984))).

In addition, courts “have a special responsibility to ensure that taxpayers are required to

reimburse prevailing parties for only those fees and expenses actually needed to achieve the

favorable result.” Role Models Am., Inc., v. Brownlee, 353 F.3d 962, 975 (D.C. Cir. 2004); see

also Foley v. City of Lowell, 948 F.2d 10, 19 (1st Cir. 1991) (“At least where public funds are

involved or the public interest is otherwise implicated, the court has a duty to consider the

application [for attorneys’ fees] critically to ensure overall fairness – a duty that abides even

when a fee target is slipshod in its opposition to a fee application.”); Northcross v. Bd. of Educ.,

611 F.2d 624, 644 (6th Cir. 1979) (“I do not believe it is wrong for us to be conservative in the

allowance of attorney’s fees to be paid from public funds.”), cert. denied, 447 U.S. 911 (1980);

Green v. Nevers, No. 92-76881, 1993 U.S. Dist. LEXIS 7348, at *50-51 (E.D. Mich. Apr. 13,

1993) (“[T]he Court believes that review and approval of attorneys’ fees, as an independent part

of a settlement proposal, is singularly within the province of the court. . . . The Court believes

this is particularly true where one of the settling parties is a public entity and the attorneys’ fee

award is being financed by public funds.”); Tonti v. Petropoulos, No. 79-279, 1979 U.S. Dist.

LEXIS 15365, at *10-11 (S.D. Ohio 1979) (“It should be noted that a major concern of courts

dealing with an award of plaintiff’s fees is not present here. This award will not be paid from

public funds. In school desegregation cases, therefore, our Court of Appeals has been careful to

hold awards to the amount necessary to achieve the purpose of the award and no more. The use

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of public funds for attorney fees in those cases makes less funds available for the education of the

children sought to be benefitted.”) (internal citations omitted); Keyes v. Sch. Dist. No. 1, Denver,

Colo., 439 F. Supp. 393, 415 (D. Colo. 1977) (“[T]he fact that the public fisc . . . must bear the

financial burden [of an award of attorneys’ fees] must not be overlooked. Attorney fee

entitlement cannot jeopardize the financial realities of the agency paying the fees. Certainly the

payment of fees awarded herein – and not budgeted – will affect school programming. . . . While

this aspect of the case is not pivotal to our overall determination of fees, it certainly cannot be

blindly disregarded.”); Oliver v. Kalamazoo Bd. of Educ., 73 F.R.D. 30, 48 (W.D. Mich. 1976),

rev’d on other grounds, 576 F.2d 714 (6th Cir. 1978) (“[T]he court is aware that this fee award

will draw upon public funds at a time when financial resources are especially dear. While this

does not diminish petitioners’ right to recover just compensation, it is a factor which the court

feels may properly be considered in determining what amount is reasonable.”); Baldridge v.

Nicholson, 19 Vet. App. 227, 233 (2005) (finding that when taxpayers are required to pay for

attorneys’ fees under the Equal Access to Justice Act, courts have a “‘special responsibility’” to

award only the fees and costs needed to prevail (quoting Role Models, 353 F.3d at 975)).

We are fully aware that Plaintiffs’ counsel, both at the Hangley Firm and TLPJ,

demonstrated admirable lawyering skills during the course of this litigation. Moreover, there is

no doubt that Plaintiffs’ lawsuit, preliminary injunction, and settlement vindicated an important

social interest. We also recognize that the award of attorneys’ fees in such cases can serve as a

deterrent against future violations of civil rights, as well as a tool to convince recalcitrant

authorities that federal civil rights violators never prosper. Furthermore, we recognize that

attorneys’ fees must be available in order to entice counsel to assist in vindicating such civil

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rights.

Nevertheless, we continue to believe that the award of almost $150,000.00 in counsel fees

and costs provides a reasonable balance between the competing interests here and accomplishes

the desired goals. Plaintiffs’ counsel receive significant compensation for a job well done and

the students of WCU and the taxpayers of Pennsylvania are not punished for the error that

resulted in this litigation.

We reject Plaintiffs’ assertions that we committed a clear error of law when we

considered Defendants’ financial circumstances in determining the proper amount of counsel fees

to be awarded. We also reject the assertion that we created a manifest injustice when we reduced

the lodestar figure by fifteen percent. As we view the matter, it would have created an injustice if

we had not. Accordingly, Plaintiffs’ motion for reconsideration will be denied.

An appropriate Order will follow.

BY THE COURT:

/s/ R. Barclay Surrick

 U.S. District Judge

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