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Delaware Valley Citizens' Council for Clean Air v. Commonwealth of Pa. & Train

May 14, 1985

DELAWARE VALLEY CITIZENS' COUNCIL FOR CLEAN AIR, ET AL., AMERICAN LUNG ASSOCIATION OF PHILADELPHIA, AND MONTGOMERY COUNTY, DELCHESTER LUNG ASSOCIATION, SIERRA CLUB, PENNSYLVANIA CHAPTER FRIENDS OF THE EARTH OF THE DELAWARE VALLEY, CITIZENS' COMMITTEE FOR ENVIRONMENTAL CONTROL, QUINN, KEVIN, FARRELL, KAYSI, WEISS, RUTH G., KLINKNER, JOHN, BIEZ, ELIZABETH S., SHULMAN, MONA
v.
COMMONWEALTH OF PA., & TRAIN, RUSSELL E., IND. & AS ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION AGENCY, ET AL., SHERLOCK, WILLIAM T., INDIVIDUALLY AND AS SECRETARY OF THE PA. DEPT. OF TRANSPORTATION, GODDARD, MAURICE K., INDIVIDUALLY AND AS SECRETARY OF THE PA. DEPT. OF ENVIRONMENTAL RESOURCES, SNYDER, DANIEL J., III, INDIVIDUALLY AND AS REGIONAL ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION AGENCY, REGION III (D.C. CIVIL 76-2068). UNITED STATES OF AMERICA V. COMMONWEALTH OF PENNSYLVANIA; THE PENNSYLVANIA DEPARTMENT OF TRANSPORTATION AND WILLIAM T. SHERLOCK, SECRETARY OF THE PENNSYLVANIA DEPARTMENT OF TRANSPORTATION; THE PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL RESOURCES AND MAURICE K. GODDARD, SECRETARY OF THE PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL RESOURCE (D.C. CIVIL 77-619). COMMONWEALTH OF PENNSYLVANIA, SECRETARY OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION AND SECRETARY OF PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL RESOURCES, APPELLANTS IN NO. 84-1179. DELAWARE VALLEY CITIZENS' COUNCIL FOR CLEAN AIR, APPELLANT IN NO. 84-1208.



On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civ. Nos. 76-2068 & 77-619).

Aldisert, Chief Judge, Becker, Circuit Judge, and Stern, District Judge.*fn*

Author: Becker

BECKER, Circuit Judge.

This opinion addresses an appeal by the Commonwealth of Pennsylvania*fn1 from a large judgment for attorneys fees and costs in favor of the Delaware Valley Citizens' Council for Clean Air (DVCCCA), pursuant to the attorneys fee provision contained in § 304(d) of the Clean Air Act (the Act), 42 U.S.C. § 7604(d), in an action brought under the citizen lawsuit provision of the Act, 42 U.S.C. § 7604(a). We also consider a cross-appeal by DVCCCA.

The underlying action was instituted by DVCCCA to compel Pennsylvania to meet federal air quality standards in several areas of the state. The litigation was ostensibly concluded in 1978 by entry of a consent decree establishing a program for the inspection and maintenance of automobile emissions systems in those geographic areas (the I/M program). After obtaining the consent decree, however, DVCCCA was confronted with prolonged and determined resistance by the Commonwealth and the Pennsylvania General Assembly to the decree's implementation, and its implementation was accomplished only after protracted, bitter, and highly publicized enforcement proceedings. These fee petition appeals relate only to work performed after entry of the consent decree.

While the appeals present a number of questions, the most important is whether attorneys fees may be awarded for the work of DVCCCA's in-house counsel. Over the Commonwealth's objection, we will affirm the district court's award of fees for such work. Moreover, for the reasons that follow, we will affirm the judgment of the district court in all other respects as well.

I. BACKGROUND FACTS AND THE FEE PETITION RULING

The relevant facts surrounding the complex litigation underlying this attorneys fee request have very recently been summarized by this Court and need not be repeated here. See DVCCCA v. Commonwealth of Pennsylvania, 755 F.2d 38, 40-41 (3d Cir. 1985)*fn2 We will therefore turn directly to a brief description of the fee petition litigation itself.

In its petition to the district court for attorneys fees and costs, plaintiff divided its request for compensation into nine phases.*fn3 The Commonwealth acceded to this approach, as did the district court, which made its fee award in terms of the nine phases.*fn4 The district court considered an extensive record and decided the fee petition application in a comprehensive opinion of some 40 pages. While we need not summarize the district court's opinion (the challenged portions are discussed infra), it is important to note that the court took much care in examining the fee petition and disallowed a significant number of claimed hours because it found them inadequately documented, duplicative, unnecessary, or excessive. The court awarded attorneys fees of $209,813.00 for work in the underlying litigation representing a lodestar of $82,233.50 augmented by multipliers of two for phases IV and VII and four Phase V.*fn5 The court then stayed its order pending appeal.

II. COUNSEL FEES UNDER THE CLEAN AIR ACT

This fee petition is brought pursuant to the Clean Air Act's counsel fee provision, § 304(d), 42 U.S.C. § 7604(d), which states:

(d) Award of costs; security

The court, in issuing any final order in any action brought pursuant to subsection (a) of this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate.

In Ruckelshaus v. Sierra Club, 463 U.S. 680, 103 S. Ct. 3274, 77 L. Ed. 2d 938 (1983), the Supreme Court held that "absent some degree of success on the merits by the claimant, it is not 'appropriate' for a federal court to award attorney's fees." Id. at 3281.*fn6 Plaintiff is eligible for attorneys fees, therefore, only if it has achieved "some success on the merits."

If plaintiff meets this threshold eligibility requirement, it is entitled under § 304(d) to an award of "reasonable" fees. This part of the Clean Air Act's attorneys fee provision is consonant with the requirements of most other statutory attorneys fee provisions, including 42 U.S.C. § 1988, and we see no reason why the calculation of a reasonable fee for Clean Air Act purposes should differ from the same calculation that courts undertake pursuant to other provisions with the identical standard. Accordingly, we hold that the jurisprudence regarding the calculation of reasonable attorneys fees developed in connection with other attorneys fee statutes -- particularly § 1988 -- is applicable to cases brought pursuant to § 304(d). This includes the jurisprudence concerning the calculation of a lodestar, the determination of reasonable hourly rates, and the enhancement of a fee award based on the quality of work. See generally, Blum v. Stenson, 465 U.S. 886, 104 S. Ct. 1541, 79 L. Ed. 2d 891 (1984); Institutionalized Juveniles v. Secretary of Public Welfare, 758 F.2d 897 (3d Cir. 1985).

Having set forth the contours of the Clean Air Act's attorneys fee provision, we now turn to a review of the challenged aspects of the fee award in this case.

III. FEES FOR SPECIFIC PHASES OF THE PROCEEDINGS

The district court included in the lodestar five categories of work (phases I,II,III,VI, and IX) for which the Commonwealth contends that fees cannot be awarded. Before we examine these contentions, we state two general propositions. First, we have no doubt that, by gaining implementation of the consent decree, plaintiff has achieved "some success" in its efforts and a fee award is therefore "appropriate" under § 304(d) of the Act. We hold, therefore, that the work done in each ...


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