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Delaware Valley Citizens' Council for Clean Air v. Pennsylvania

ELR Citation: 15 ELR 20475
Nos. Nos. 84-1179, -1208, 762 F.2d 272/22 ERC 1877/(3d Cir., 05/14/1985) Award of attorney fees aff'd

The court upholds the district court's award of attorney fees under Clean Air Act §304(d) to an environmental group that won substantial relief in litigation to enforce a consent decree requiring implementation of Pennsylvania's automobile emission inspection and maintenance program. The court holds that the law developed under other attorney fees statutes, particularly 42 U.S.C. §1988, is applicable to cases brought under the Clean Air Act. The court goes on to hold that work in five phases of the litigation is compensable because it contributed to plaintiff's successful efforts to implement the consent decree. Specifically, the court holds compensable efforts to overcome Pennsylvania's initial delay in proposing regulations required by the consent decree, submission of comments on those regulations, negotiations over modifications to the decree necessitated by legislative action, opposition to the intervention of legislators in the action, participation in Environmental Protection Agency regulatory proceedings to oppose modifications to the state plan, and filing of an amicus brief in related state court litigation.

The court next holds that although plaintiff retained outside counsel, it is entitled to fees for work performed by one of its officers, who thus acted as both attorney and client. A litigant may recover attorney fees for work performed by salaried in-house counsel who has played an active role in the litigation. A contrary rule would conflict with the purposes of the Clean Air Act's citizen suit provisions by forcing the use of more expensive outside counsel, thereby inhibiting suits brought by public interest or citizen groups.

Turning to the environmental group's cross appeal on the issue of hourly rates, the court holds that the district court did not abuse its discretion when it compensated certain work performed by highly experienced and able counsel below the top rate based on its findings that these attorneys performed only associate level or ministerial work. Nor did the district court abuse its discretion when it disallowed time spent by an attorney at a hearing where he was not plaintiff's principal advocate. Denying fees for this "second chair" attorney does not conflict with the Act.

The court splits in its review of the district court's imposition of multipliers to the lodestar values for certain phases of the litigation. The judges agree that a multiplier should be imposed only in the rare cases where the fee applicant shows superior service and exceptional success. The majority finds that plaintiff's counsel performed exceptionally by battling a state government system that fought deviously to avoid the enforcement of the consent decree, by manuevering through difficult federalism issues, and by enforcing environmental legislation. The district court was also within its discretion in awarding a multiplier for the contingent nature of plaintiff's success in certain phases of the litigation. Thus, this is the rare case where the lodestar can be adjusted. The dissent, noting that the Supreme Court has characterized a 50 percent multiplier as "substantial," believes that a multiplier of two is not justified for certain work performed that had a small chance for failure. The dissent would also remand the application of a multiplier of four in another phase because this is not one of the rare cases where such an extraordinary multiplier is warranted.

[The case below is published at 15 ELR 20192. Opinions from the underlying actions appear at 11 ELR 20952, 20954, 20956; 12 ELR 20191, 20289, 20295, 20533, 20631, 20925; 13 ELR 20426; 14 ELR 20146; and 15 ELR 20202.]

Counsel for Appellants
James D. Crawford
Schnader, Harrison, Segal & Lewis
1600 Market St., Suite 3600, Philadelphia PA 19103
(215) 751-2000

Counsel for Appellees
John M. Hrubovcak, Ass't Counsel
Department of Transportation, Harrisburg PA 17120
(717) 787-5473

Before Becker and Stern,* JJ.