1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-2-1995

Halderman v Pennhurst

Precedential or Non-Precedential:

Docket 94-1674

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Recommended Citation

"Halderman v Pennhurst" (1995). 1995 Decisions. Paper 66.

http://digitalcommons.law.villanova.edu/thirdcircuit_1995/66
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ____________ 

 No. 94-1674 

 ____________ 

 TERRI LEE HALDERMAN, a retarded citizen, by her mother 

and guardian, Winifred Halderman, LARRY TAYLOR, a 

retarded citizen, by his parents and guardians, Elmer 

and Doris Taylor; KENNY TAYLOR, a minor, a retarded 

citizen, by his parents and guardians, Elmer and Doris 

Taylor; ROBERT SOBETSKY, a minor, a retarded citizen, 

by his parents and guardians, Frank and Angela 

Sobetsky; THERESA SOBETSKY, a retarded citizen, by her 

parents and guardians, Frank and Angela Sobetsky; NANCY 

BETH BOWMAN, a retarded citizen, by her parents and 

guardians, Mr. and Ms. Horace Bowman; LINDA TAUB, a 

retarded citizen, by her parents and guardians, Mr. and 

Mrs. Allen Taub; GEORGE SOROTOS, a minor, a retarded 

citizen, by his foster parents, William and Marion 

Caranfa, all of the above individually and on behalf of 

all others similarly situated; THE PARENTS AND FAMILY 

ASSOCIATION OF PENNHURST; PENNSYLVANIA ASSOCIATION FOR 

RETARDED CITIZENS; JO SUZANNE MOSKOWITZ, a minor, by 

her parents and next friends, Leonard and Nancy 

Moskowitz; ROBERT HIGHT, a minor, by his parents and 

next friends, John and Jeanne Hight; DAVID PREUSCH, a 

minor by his parents and next friends, Calvin and 

Elizabeth Preusch, and CHARLES DiNOLFI, on behalf of 

themselves and all other similarly situated, 

 Plaintiffs-Intervenors

 UNITED STATES OF AMERICA, 

 Plaintiff-Intervenor

v. 

 PENNHURST STATE SCHOOL & HOSPITAL; DEPARTMENT OF PUBLIC 

WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA; FRANK S. 

BEAL, Secretary of the Department of Public Welfare; 

STANLEY MEYERS, Deputy Secretary for Mental 

Retardation, Department of Public Welfare; HELENE 

WOHLGEMUTH, Former Secretary, Department of Public 

Welfare; ALDO COLAUTI, Executive Deputy Secretary, 

Department of Public Welfare; WILBUR HOBBS, Deputy 

Secretary for Southeastern Region, Department of Public 
Welfare; G. DUANE YOUNGBERG, Superintendent, Pennhurst 

State School & Hospital; ROBERT SMILOVITZ, Former 

Assistant Superintendent Pennhurst State School & 

Hospital; JOSEPH FOSTER, Assistant Superintendent, 

Pennhurst State School & Hospital; MARGARET GREEN, 

BETTY UPHOLD, ALICE BARTON, P.E. KILICK, DR. PAROCCA, 

HELEN FRANCIS, employees and agents of Pennhurst State 

School & Hospital; JOHN DOCTOR, JAMES NURSE, JANE AIDE, 

JILL THERAPIST, RICHARD ROE, JANE DOE, unknown and 

unnamed staff, employees and agents of Pennhurst State 

School & Hospital, each individual Defendant sued 

individually and in his or her official capacity; 

GEORGE HETZGER, JOSEPH CATANIA, and ROGER BOWERS, 

Commissioners for Bucks County; ROBERT STREBL, EARL 

BAKER, and LEO McDERMOTT, Commissioners for Chester 

County; FAITH R. WHITTLESEY, CHARLES KELLER, and 

WILLIAM SPINGLER, Commissioners for Delaware County; A. 

RUSSELL PARKHOUSE, FRANK W. JENKINS and LAWRENCE H. 

CURRY, Commissioners for Montgomery County; MAYOR FRANK 

L. RIZZO and THE CITY COUNCIL OF PHILADELPHIA, as 

Authorities for Philadelphia County; PETER 

BODENHEIMBER, Mental Health/Mental Retardation 

Administration for Bucks County; WILLIAM A. McKENDRY, 

Mental Health/Mental Retardation Administrator for 

Chester County; P. PAUL BURRICHTER, Mental 

Health/Mental Retardation Administrator for Delaware 

County; HERMANN A. ROTHER, Mental Health/Mental 

Retardation Administration for Montgomery County, and 

LEON SOFFER, Mental Health/Mental Retardation 

Administration for Philadelphia County, 

 Commonwealth of Pennsylvania, Appellant

 ____________ 

 APPEAL FROM THE UNITED STATES DISTRICT COURT 

 FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

 (D.C. No. 74-cv-01345) 

 ____________ 

 Argued December 19, 1994 

 Before: GREENBERG, SAROKIN and WEIS, Circuit Judges

 Filed March 2, l995 

 ____________ 
Jerome J. Shestack, Esquire (ARGUED) 

Barry M. Klayman, Esquire 

WOLF, BLOCK, SCHORR and SOLIS-COHEN 

12th Floor Packard Building 

15th & Chestnut Streets 

Philadelphia, PA 19102-2678 

Attorneys for Appellant, Commonwealth of Pennsylvania

Frank J. Laski, Esquire (ARGUED) 

Judith A. Gran, Esquire 

PUBLIC INTEREST LAW CENTER OF PHILADELPHIA 

125 S. 9th Street, Suite 700 

Philadelphia, PA 19107 

Attorneys for Appellees

 ____________ 

 OPINION OF THE COURT 

 ____________ 

WEIS, Circuit Judge. 

 In this appeal from the inclusion of specific items in 

a grant of attorneys' fees and expenses growing out of a contempt 

proceeding, we hold that no payment is due for time spent in 

public relations efforts. Thus, we will disallow those fees as 

well as those for duplicative work. Other claims that were not 

supported by evidence at a hearing on fees or that were 

improperly inflated because the tasks performed were easily 

delegable to personnel with substantially lower hourly rates, 

will also be denied. 

 In 1985, after years of negotiation, the parties 

reached a settlement in this suit brought to require appropriate 

care for mentally retarded citizens in Pennsylvania. A consent 

decree was entered, but it was not long before the controversy 
erupted again. In 1987, the plaintiff-class filed a motion to 

have the court hold the City of Philadelphia and the Commonwealth 

of Pennsylvania in contempt for failing to adhere to the terms of 

the consent decree. Extended efforts at settlement resulted in 

an agreement in 1991. However, this attempt also failed to 

resolve the dispute, and plaintiffs renewed their 1987 motion. 

After a hearing in 1993, the district court found the City and 

the Commonwealth in contempt in an opinion reported at Halderman 

v. Pennhurst State Sch. & Hosp., 154 F.R.D. 594 (E.D. Pa. 1994). 

 Plaintiffs' counsel then applied for fees and expenses. 

After some negotiation, David Ferleger, Esquire, who had 

represented the class, agreed to accept $260,000 and that matter 

is not at issue. After a hearing, the court awarded fees to the 

Association of Retarded Citizens of Pennsylvania for the services 

of its counsel, who had also participated in the proceedings on 

behalf of plaintiffs. The court directed that the City and the 

Commonwealth each pay $222,239.25 to cover the Association's 

attorneys' fees and expenses. Halderman v. Pennhurst State Sch. 

& Hosp., 855 F. Supp. 733, 746 (E.D. Pa. 1994). Only the 

Commonwealth has appealed. 

 An award of fees and expenses in this case is 

permissible under 42 U.S.C. § 1988 and under the court's inherent 

power to reimburse a party for outlays incurred in securing an 

adjudication of contempt. Robin Woods, Inc. v. Woods, 28 F.3d 

396, 400-01 (3d Cir. 1994). The formula for awarding fees in the 

contempt context is usually the more generous. In that setting, 

the innocent party is entitled to be made whole for the losses it 
incurs as the result of the contemnors' violations, including 

reasonable attorneys' fees and expenses. Id.; see Chambers v. 

Nasco, Inc., 501 U.S. 32, 46 (1991); Alyeska Pipeline Serv. Co. 

v. Wilderness Soc'y, 421 U.S. 240, 258 (1975). 

 The Commonwealth has raised five objections to specific 

items included in the district court's computations. We will 

discuss them seriatim. 

 I. PUBLICITY EFFORTS 

 The Association's counsel sought compensation for 

seventy hours of "work related to writing press releases, 

speaking with reporters and otherwise publicizing the contempt 

motion." The district court observed that the litigation was 

over "an important public issue, i.e., the habilitation of 

mentally retarded citizens" but reduced the requested number of 

hours to 36.5 as being the maximum amount that the Association 

could reasonably recover for this activity. The total amount 

awarded for publicity efforts was $7,375.00. 

 In Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169 

(4th Cir. 1994), the Court of Appeals rejected a 42 U.S.C. § 1988 

claim for fees for public relations efforts "to sway public 

opinion and influence State policy-makers to change [the 

defendant's police] enforcement policies." Id. at 176. The 

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

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

 In another § 1988 case, Hart v. Bourque, 798 F.2d 519, 

523 (1st Cir. 1986), the Court of Appeals for the First Circuit 

approved the disallowance of time "spent on arrangements for 
lectures or publications about the case." Similarly, in Greater 

Los Angeles Council on Deafness v. Community Television of S. 

Cal., 813 F.2d 217, 221 (9th Cir. 1987), the Court of Appeals for 

the Ninth Circuit concluded that fees for lobbying and publicity 

claimed under the Rehabilitation Act and the Equal Access to 

Justice Act were properly disallowed by the trial court. 

 However, in a Title VII employment case, Davis v. City 

& County of San Francisco, 976 F.2d 1536, 1545 (9th Cir. 1992), 

vacated in part on other grounds, 984 F.2d 345 (9th Cir. 1993), 

the same Court of Appeals affirmed an award for counsel's "time 

spent in giving press conferences and performing other public 

relations work." The district court had defended the allowance 

as a valid effort to obtain the support of elected officials that 

was vital to obtaining a consent decree. The Court of Appeals 

concluded that because private attorneys perform public relations 

work in connection with their representation of private clients, 

civil rights attorneys may do so as well. We find the Davis

opinion somewhat inconsistent with the Court's earlier views in 

Greater Los Angeles Council on Deafness and are not persuaded by 

its reasoning. 

 The fact that private lawyers may perform tasks other 

than legal services for their clients, with their consent and 

approval, does not justify foisting off such expenses on an 

adversary under the guise of reimbursable legal fees. We are 

more impressed with the reasoning in Rum Creek Coal Sales that 

the proper forum for litigation is the courtroom, not the media. 

It is particularly inappropriate to allow public relations 
expenses in the case at hand while it was pending before the 

district judge who had approved the consent decree and subsequent 

settlement agreement. The allowance of $7,375.00 must, 

therefore, be disapproved. 

 II. FEES FOR ESCORTING EXPERTS 

 The Association submitted a request of $200 per hour 

for lead counsel's time spent accompanying non-testifying experts 

on various site visits. In other instances, this function was 

carried out by a paralegal at $60 per hour. The district court 

concluded that the hours spent were "reasonable and necessary to 

the outcome of the contempt litigation." 

 We have cautioned on a number of occasions that when a 

lawyer spends time on tasks that are easily delegable to nonprofessional assistance, legal service rates are not applicable. 

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

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

Ursic v. Bethlehem Mines, 719 F.2d 670, 677 (3d Cir. 1983); 

Prandini v. National Tea Co., 557 F.2d 1015, 1020 (3d Cir. 1977). 

 Even the use of a paralegal for the work described in 

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

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

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

suggested by the Commonwealth, should be granted. 

 III. AWARD OF EXPENSES FOR NON-TESTIFYING EXPERTS 

 The Association submitted a claim for $13,662.73 in 

fees and costs expended in retaining three non-testifying 

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

interviewed class members, researched and evaluated records, and 

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

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

remaining experts, apparently in the belief that the entire claim 

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

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

 Approval of the testifying expert's fees in the amount 

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

Commonwealth objects only to the claim for the three nontestifying expert witnesses. The district judge found their 

participation "indispensable to this case" and, relying on 

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

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

granting reimbursement fees of this nature would be proper in a 

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

issues. 

 The difficulty here, however, is the lack of 

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

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

Association's counsel correctly conceded that there was no 

support presented at the fee hearing for the necessity of the 

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

the services that they performed. Consequently, the award of 

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

did not testify cannot be sustained. 

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

that plaintiffs' counsel spent in consulting with those experts, 

finding that a substantial amount of time was required to 

interview class members as well as to research and evaluate their 

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

party claiming reimbursement. Rode v. Dellarciprete, 892 F.2d 

1177, 1183 (3d Cir. 1990). Despite the fact that the 

Commonwealth had objected to this particular request, the 

Association never demonstrated why these activities were 

necessary. Although an allowance might well have been proper, 

once again, plaintiffs failed to produce any evidence at the 

hearing convened to resolve these issues. Therefore, the 

Association has not sustained its burden. 

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

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

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

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

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

 V. DUPLICATION OF EFFORT 

 The Commonwealth contends that there was extensive 

duplication of legal services by the Association's counsel and 

Mr. Ferleger. Two specific instances submitted for our 

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

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

proposed findings of fact, resulting in two separate submissions 

rather than a single consolidated one. 

 In many cases, the attendance of additional counsel 

representing the same interests as the lawyers actually 

conducting the deposition is wasteful and should not be included 

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

Eckerhart, 461 U.S. 424, 434 (1983). The fact that a private 

client may accede to the practice and pay the additional fees 

does not necessarily make them reasonable nor necessary when they 

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

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

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

Research Group of N.J., Inc. v. AT&T Bell Labs., 842 F.2d 1436, 

1454 (3d Cir. 1988). 

 However, the failure of counsel to coordinate their 

efforts in the preparation of the findings of fact was 

challenged, and we therefore will consider it. The district 

court found that both sets of requests for findings were nonrepetitious and helpful and that it appeared that counsel had 

made a conscious effort to be non-duplicative. 

 Mr. Ferleger submitted findings of 132 pages. 

Principal counsel for the Association testified at the hearing in 

the district court that she had filed proposed findings of 131 

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

single joint proposed findings" and defended the practice of 

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

justification for that procedure during some phases of the 

litigation, but we are unable to discern the necessity of 

preparing uncoordinated, separate findings when the interests of 

those representing the retarded citizens were identical. 

 We have examined the requests for findings and are 

convinced that coordination between counsel would have reduced 

the total time required for preparation. Redundant review of the 

record by both counsel and the drafting of parallel requests is 

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

should have been employed. 

 We therefore conclude that the Commonwealth's request 

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

Association's principal counsel spent in preparation of the 

findings of fact should be granted. The Association has not 

questioned the amount of time allocated to that task, and 

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

conclude that the record requires a disallowance in the amount of 

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

of fact. 

 VI. ACROSS-THE-BOARD REDUCTION 

 The Commonwealth contends that the lodestar should have 

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

substantially less relief than they sought. The district court 

disagreed and concluded that "plaintiffs achieved substantially 

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

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

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

plaintiffs' fee schedule, the district court reduced the 

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

total of $444,478.50. 

 Because it had conceded in the district court that it 

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

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

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

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

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

completed. The trial judge expressed his surprise in responding 

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

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

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

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

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

 The reality is that both liability and remedy were 

contested and that the district court did grant very substantial 

relief to plaintiffs. We are not persuaded that the district 

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

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

 VII. CONCLUSION 

 Granting the following expenses was inconsistent with a 

proper exercise of discretion and will be disallowed as listed: 

 $7,375.00 Publicity 

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

 $36,327.59 Attorney Consultation with Experts 

 $15,400.00 Duplication of Services 

 

 $67,505.32 TOTAL REDUCTION OF AWARD 

Because the fees were to be evenly divided between the 

Commonwealth and the City of Philadelphia, the award of counsel 

fees and expenses against the Commonwealth will be reduced by 

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

modification of the judgment against the Commonwealth by reducing 

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

district court will be affirmed. 

_________________________________