                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-27-2001

Maldonado v. Houstoun
Precedential or Non-Precedential:

Docket 97-1893




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Recommended Citation
"Maldonado v. Houstoun" (2001). 2001 Decisions. Paper 139.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/139


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Filed June 27, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-1893

EDWIN MALDONADO; MARIA DELORES MALDONADO,
individually and as next friends of Ana Maldonado, Pablo
Maldonado, Edwin Maldonado, Rey Maldonado, Y esenia
Maldonado, and Jose Maldonado, and on behalf of all
others similarly situated; MARIA ORTIZ; MICHAEL ORTIZ,
individually and as next friends of Julie Ortiz, Michael
Ortiz, and Angelica Ortiz, and on behalf of all other
similarly situated; KENSINGTON WELFARE RIGHTS
UNION; PHILADELPHIA WELFARE RIGHTS
ORGANIZATION, on behalf of themselves and their
members; TRAVELER'S AID SOCIETY OF PHILADELPHIA,
individually and on behalf of its clients

v.

FEATHER O. HOUSTOUN, Secretary of the
PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE;
DON JOSE STOVALL, Executive Director of the
PHILADELPHIA BOARD OF ASSISTANCE, both in their
official capacities,

Appellants

STAPLETON, ROSENN, Circuit Judges, and RESTANI,
Judge, United States Court of International T rade*

(Filed June 27, 2001)



_________________________________________________________________
* The Honorable Jane A. Restani, Judge, United States Court of
International Trade, sitting by designation.
OPINION SUR MOTION for ATTORNEYS' FEES
and COSTS

ROSENN, Circuit Judge:

The determination of a reasonable attor ney's fee for a
prevailing party under a fee shifting statute generally is a
disagreeable and tedious task, especially wher e the fee
petition is vigorously contested and the petition is in behalf
of numerous lawyers who worked on the appeal. The fee
motion before us claims over 550 hours of attor ney time
expended exclusively for work on the appeal. W e are
required to analyze the motion and supporting data to
ascertain whether the amount claimed is reasonable. The
motion is especially troublesome because in this single
issue appeal, ten lawyers represented the plaintiffs and
claim compensation for not only an aggregate of 550.13
hours of service on the appeal, but an additional claim of
25.68 hours for services expended on the fee petition. The
total sum claimed is $100,996.40 in attorneys' fees and
$648.74 in costs.

The plaintiffs, welfare recipients in Pennsylvania, brought
a class action in 1997 in the United States District Court
challenging the constitutionality of Pennsylvania's two-tier
durational residency requirement limiting the amount of
public assistance benefits for new residents. The plaintiffs
claimed that the two-tier welfare scheme violated their
constitutional rights to travel, to equal pr otection, and to
non-discriminatory treatment under the Privileges and
Immunities Clause. They moved for class certification and
an injunction. The plaintiffs sued pursuant to 42 U.S.C.
S 1983, naming the State Secretary of Public Welfare and
the Executive Director of the Philadelphia Boar d of
Assistance as defendants. The District Court held that the
two-tier welfare scheme violated the Fourteenth
Amendment Equal Protection Clause, granted the
injunction, and certified the class action. On the basis of a
stipulation of counsel, the District Court or dered the
defendants to pay $248,000 for the plaintiffs' fees for
services rendered in that court, and costs. The

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Commonwealth appealed and, after briefing and oral
argument, we affirmed. See Maldonado v. Houstoun, 157
F.3d 179 (3d Cir. 1998).

After our decision, the Supreme Court of the United
States granted certiorari to review Roe v. Anderson, 134
F.3d 1400 (9th Cir. 1998), a decision which struck down
similar provisions in a California statute.

Based on our decision and the decision of the United
States Supreme Court in Saenz v. Roe, 526 U.S. 489 (1999)
(affirming the judgment of the United States Court of
Appeals for the Ninth Circuit in Roe v. Anderson, 134 F.3d
1400 (9th Cir. 1998)), we now have befor e us the plaintiffs'
motion for attorneys' fees and costs in connection with
their appeal to this court.

I.

The plaintiffs (appellees) claim that they ar e entitled to
the attorneys' fees and costs requested because they
prevailed on the appeal within the meaning of 42 U.S.C.
S 1983. See 42 U.S.C. S 1988(b) (providing, in the court's
discretion, a reasonable attor ney's fee to a prevailing party
to a S 1983 action). As we stated above, they also prevailed
in the District Court where the trial judge, acting on a
stipulation of counsel for the parties, enter ed an order on
January 3, 2000, awarding plaintiffs $248,000 in full
satisfaction of fees and costs incurred in that court.
Regrettably, we have no stipulations in the motion before
us; on the contrary, the appellants (effectively the State)
strenuously oppose the motion in all of its aspects.

The State contends that the fees requested ar e "grossly
unreasonable." It acknowledges that the appellees are
entitled to receive a fee award, but asserts that the fee
request is "grotesquely inflated." The State emphasizes that
the appeal presented only a single issue which, although
important, was not particularly complicated, and tur ned
largely on the Court's construction of Shapiro v. Thompson,
394 U.S. 618 (1969). Specifically, the State ar gues that an
award for the hours claimed for preparation of the brief at
oral argument should be substantially r educed, and that
the appeal's single issue, "which had alr eady been

                               3
thoroughly explored in the District Court," reasonably
should have required no more than 100 hours. The State
also contends that the hourly rate claimed for the attorneys
is excessive and that the allowable hourly rate for all
lawyers, including those of a private law fir m, should
conform to the rates of Community Legal Services (CLS),
which have been widely accepted as fairly reflecting the
prevailing market rates in Philadelphia. The State asserts
that attorneys of Dechert, Price & Rhoads pr ovided
insufficient support for their high rates claimed.

On the other hand, the appellees assert that the issues
on appeal "were complex and difficult," required familiarity
with a large body of case law, state statutes and
regulations, that the case was not "over -lawyered" by the
plaintiffs, and that they have "alr eady substantially reduced
their hours to account for any inefficiencies cr eated by a
multi-firm team." They further assert that the time they
spent on the appeal was reasonable, and that the State's
lack of cooperation in the preparation of the appendix
added to the expense. They also argue that the hourly rate
claimed is reasonable and that the State should be ordered
to pay Dechert "at its normal rates, which are set by the
market."

II.

In assessing the reasonableness of a claimed fee in cases
like this, we use the "lodestar" formula, which requires
multiplying the number of hours reasonably expended by a
reasonable hourly rate. See Hensley v. Eckerhart, 461 U.S.
424 (1983); Pennsylvania v. Delaware V alley Citizens'
Council for Clean Air, 478 U.S. 546 (1986); Pennsylvania
Environ. Def., 152 F.3d at 232."When the applicant for a
fee has carried his burden of showing that the claimed
rates and number of hours are reasonable, the resulting
product is presumed to be the reasonable fee to which
counsel is entitled." Delaware V alley Citizens' Council, 478
U.S. at 564 (internal quotation omitted).

In calculating the hours reasonably expended, a court
should "review the time charged, decide whether the hours
set out were reasonably expended for each of the particular

                               4
purposes described and then exclude those that ar e
`excessive, redundant, or otherwise unnecessary.' " Public
Int. Research Group of N.J., Inc. v. W indall, 51 F.3d 1179,
1188 (3d Cir. 1995) (internal citation omitted); see also
Rode v. Dellarciprete, 892 F .2d 1177, 1183 (3d Cir. 1990)
("The district court should exclude hours that ar e not
reasonably expended."). "Hours that would not generally be
billed to one's own client are not properly billed to an
adversary." Public Interest Gr oup, 51 F.3d at 1188. Thus, we
have a positive and affirmative function in the fee fixing
process, not merely a passive role.

Generally, a reasonable hourly rate is calculated
according to the prevailing market rates in the relevant
community. See Blum v. Stenson, 465 U.S. 886, 895 (1984);
Dellarciprete, 892 F.2d at 1183. The court "should assess
the experience and skill of the prevailing party's attorneys
and compare their rates to the rates pr evailing in the
community for similar services by lawyers of r easonably
comparable skill, experience, and reputation." Dellarciprete,
892 F.2d at 1183. The prevailing party"bears the burden of
establishing by way of satisfactory evidence, `in addition to
[the] attorney's own affidavits,' . . . that the requested
hourly rates meet this standard." W ashington v.
Philadelphia Cty. Ct. of Common Pleas, 89 F .3d 1031, 1035
(3d Cir. 1996) (citing Blum v. Stenson , 465 U.S. 886, 895
n.11 (1984)). The starting point in ascertaining a
reasonable hourly rate "is the attor ney's usual billing rate,
but this is not dispositive." Public Inter est Group, 51 F.3d at
1185.

In analyzing this heated controversy, some concepts and
precepts are indisputable. The plaintif fs presented an
excellent case and a high quality brief. Accor dingly, they
are entitled to all hours "reasonably expended on the
litigation." West Virginia University Hospitals, Inc. v. Casey,
898 F.2d 357, 360 (3d Cir. 1990) (quoting Hershey v.
Echerhart, 461 U.S. 424, 436 (1993). The converse is also
true; they are not entitled to compensation for hours
unreasonably expended on the litigation.

III.

We do not question the accuracy of counsel's records.
Our principal concern is whether the time claimed is

                               5
reasonable for the services perfor med, a concern which is
accentuated because of the many lawyers involved in behalf
of the plaintiffs. Ordinarily, this appeal could have been
briefed and argued by a single lawyer or two. Lawyers
should understand that although the likelihood of success
in a fee shifting case may be promising, the pr ospects of
payment by a defendant with a deep pocket or a defendant
with tax collecting powers should not encourage the
utilization of an excess number of lawyers on the
preparation of the appeal. Nor is work on the appeal
intended to be a training school for law students or
embryonic lawyers at the expense of the losing party. A
reviewing court must adhere to the statutory and case law
standards. As do the district courts, an appellate court also
has a positive and affirmative function in the fee fixing
process.

In analyzing the services rendered on this appeal, we
divide them into categories: 1) research and briefing; 2)
preparation of the supplemental appendix; 3) oral
argument; and 4) communication and confer ences. We will
determine a reasonable hourly rate and then review the
fees claimed for preparing the fee petition.

1. Research and Briefing

The facts before this court on the underlying appeal
comprised two short paragraphs. The single issue before us
on the appeal, although significant, was framed in these
words: "Whether Pennsylvania violates the Constitution by
providing that, for one year after their arrival in
Pennsylvania, applicants for certain welfare benefits may
receive only the amount they would have r eceived in their
state of prior residence." We, ther efore, noted that we were
"only to determine the constitutionality of the state
statute," and that we only had to address the propriety of
the District Court's legal conclusion in granting the
injunction.

In our analysis of the law on the right to travel, we stated
in our written opinion, as did the District Court, that the
seminal case on the subject of strict scrutiny of state
durational residency requirements as prerequisite to
eligibility for welfare benefits was Shapiro v. Thompson, 394

                               6
U.S. 618 (1969). We observed that the Court r eaffirmed this
decision five years later in Memorial Hospital v. Maricopa
County, 415 U.S. 250 (1974). The holdings in those cases
have never been overturned, and were very well known to
legal scholars and those practicing public service law. They
were binding precedent upon us in deciding this case. We
believed then, and we have no reason to change our
opinion now, that this case was important and inter esting,
but not complex. This in no way alters plaintif fs' right to a
reasonable fee for their services, but it does not justify
excessive claims. The immediate and difficult question is
whether the hours claimed are reasonable for the services
performed.

First, we note that the appellees' attorneys on appeal
represented them in the District Court. Judge Newcomer
had discussed the legal issue on appeal in a well-written
and thorough opinion. See Maldonado v. Houstoun, 177
F.R.D. 311 (E. D. Pa. 1997). In his opinion, Judge
Newcomer cited the District Court opinion in Roe v.
Anderson, 166 F. Supp. 977 (E. D. Cal. 1997) enjoining the
enforcement of a similar statute. The Supr eme Court later
affirmed Anderson in Saenz v. Roe, supra. The District
Court also discussed at length Shapiro and its progeny. See
Maldonado, 177 F.R.D. at 323-33 (1997).

Thus, much if not all of the pertinent law had been
briefed and argued in the District Court, and the District
Court opinion carefully and thoughtfully analyzed it. We
are, therefore, stunned that over 550 hours are claimed for
researching, briefing, conferring, pr eparing a supplemental
appendix, and arguing the single constitutional issue before
us.

The appellees noted in their brief to this court that the
State "has explicitly limited its arguments on appeal to the
class's likelihood of success on the merits" and has waived
the issues pertaining to the other three factors necessary to
the issuance of a preliminary injunction. In addition, the
salient cases and statute on the single issue to be argued
by the State were set forth by the District Court in its
opinion. The court analyzed at length Shapir o v. Thompson
and its progeny, and discussed the criticism of Shapiro in
Attorney General of New York v. Soto-Lopez, 476 U.S. 898

                               7
(1986), Memorial Hospital v. Maricopa County, 415 U.S. 250
(1974), and a leading law review article by Thomas R.
McCoy entitled "Recent Equal Protection Decisions --
Fundamental Right to Travel or `Newcomers' as a Suspect
Class?" The District Court also discussed T odd Zubler's law
review article on "The Right to Migrate and Welfare Reform:
Time for Shapiro v. Thompson to Take a Hike."

Thus, the researching and briefing of the law on the
single uncomplicated issue before this court did not require
creating or developing an original theory or analyzing
obscure principles of law. Moreover , the burden rested on
the State, not the appellees, in framing the issue and
preparing the appendix. Notwithstanding, appellees'
counsel claim an enormous amount of time for r esearching
and briefing an issue which they had successfully tried,
researched, and briefed in the District Court.

True, the appellees prepared and submitted an excellent
brief of 41 pages. The first 13 pages, however , essentially
contain the appellee's statement of the issue, the counter-
statement of the case, and a two-page summary of the
argument. The remaining 28 pages contain the argument.
Our arithmetic shows that the appellees claim an aggregate
amount of 276.65 hours for research and briefing. Under
the foregoing circumstances, we believe that a reasonable
and generous amount of time for resear ch and briefing on
the single issue, especially considering the r esearch and
briefing in the District Court, and the pertinent law set
forth in the District Court decision, is 120 hours.

2. Supplemental Appendix

Appellees claim 32.50 hours for the preparation of their
appendix supplementing the State's appendix. Considering
that the appellant had the burden of pr eparing and
submitting the original appendix, we believe two nor mal
work days should have been more than sufficient for the
preparation of a supplemental appendix. W e will allow 16
hours for this purpose.

3. Oral Argument

Appellees claim 169.35 hours in preparation for a twenty
minute oral argument. This is the equivalent of slightly

                               8
more than 21 full eight-hour days. Susan Frietsche, who
made the oral argument for the appellees, individually
claimed 77.3 hours in preparation for the oral argument
and one hour in court for making the argument. Her
colleagues in the case claimed an aggregate of 72.05 hours
preparing for the oral argument to be made by Frietsche
who, although at the Bar for only six years when she
argued this case before the court, had achieved an
impressive record at college, law school, and in public
service litigation. A total of 169.35 hours in pr eparation for
an oral argument on a single issue that had been tried,
briefed, and argued in the District Court is unacceptable.
65.5 hours are claimed by Eliza Shapiro, and 15.25 hours
by Sarah Moskowitz in preparation for oral ar gument. If a
private client had agreed to pay for such services, so be it.
But in fee shifting, there are standar ds to be maintained.
See Norman v. Housing Auth. of Montgomery, 836 F.2d 1292
(11 Cir. 1988) (court should exclude hours that would be
unreasonable to bill to a client, irrespective of counsel's
experience, skill, or reputation).

A reasonable fee for hours spent preparing for a legal
argument should be limited to hours reasonably necessary
for a lawyer to become familiarized with the facts and the
law pertaining to the issue to be argued, an analysis of the
opponent's argument, and questions anticipated to be
posed by the court. Under the fee shifting statute, the
losing party is expected to pay for hours reasonably spent
in the argument and its preparation, but not for excessive
hours, or hours spent in learning or excessively rehearsing
appellate advocacy. We believe 24 hours for preparation for
this oral argument, and two hours for attendance at oral
argument, is fair and reasonable.

4. Conferences and Communications

Appellees also request payment for over 40 hours spent
on telephones, conference calls, and meetings to plan
strategy, and payment for over 80 hours of miscellaneous
time. There is considerable question whether many of these
activities, communications and conference calls were
necessary at all. For reasons evident in Part IV of our
opinion, we will not tarry in our analysis of these claims

                                9
but will allow 40 hours as generous and r easonable for all
these purposes.

5. Fee Petition

We also believe that the time claimed for the preparation
of a simple six-page fee petition, largely supplemented by
affidavits of several counsel, resumes, and time sheets, is
excessive. Again we will not set forth our r easons therefor
at this point but will resolve the matter in Part IV hereof.

6. Hourly Rate

The appellees have the burden of establishing a
reasonable hourly rate for each of the attor neys. Each of
the parties offer very little evidence pertaining thereto. The
fee schedule established by Community Legal Services, Inc.
("CLS") "has been approvingly cited by the Third Circuit as
being well developed and has been found by [the Eastern
District of Pennsylvania] to be a fair reflection of the
prevailing market rates in Philadelphia." See Rainey v.
Philadelphia Housing Auth., 832 F. Supp. 127, 129 (E. D.
Pa. 1993)(citing Swaayze v. Philadelphia Housing Auth., No.
91-2982, 1992 WL 81598, at N2 (E. D. Pa. Apr . 16, 1992)).
The State has no objection to their use here. W e approve of
those rates as reasonable in fixing the hourly rates in this
case, and deny the hourly rates that are inconsistent with
them.

IV.

In summary, we believe a reasonable number of hours for
the services performed in behalf of the plaintiffs is as
follows:

          Procedure                           Hours
          Research and briefing               120
          Preparation of supplemental
          appendix                             16
          Preparation for oral argument        24
          Attendance at oral argument           2
          Telephone calls and conferences      40
          Preparation for fee petition         10
              Total reasonable hours          212 hours

                               10
In their Memorandum in Opposition to Appellees' Motion,
the State used the CLS fee schedule to adjust appellees'
hourly rates where appropriate. We hold that the rates set
forth in the CLS schedule are reasonable for the services
performed in this case.

The State's memorandum submits that a reasonable
number of hours for the services perfor med in this appeal
is an aggregate of 219.84 hours. Our independent analysis
confirms that this figure is gener ous and not unreasonable.
The State also has undertaken the difficult task of
calculating the lodestar for each individual claimant; we
deem their calculations to be reasonable and accurate. That
calculation is as follows:

ATTORNEY     HOURS    HOURLY RATE     LODESTAR
McLaughlin   15.25      $250          $3,812.50
Nosowsky     32.70      $140          $4,578.00
Fitinides    35.59      $120          $4,270.80
Terry        27.20      $130          $3,536.00
Frietsche    28.60      $150          $4,290.00
Shapiro      23.90      $90           $2,151.00
Moskowitz     0.00      $60                0.00
Weishaupt    22.35      $265          $5,922.75
Stein        10.25      $275          $2,818.75
Kreimer      24.00      $250          $6,000.00
   TOTAL     219.84                  $37,379.80

The State has no objection to the claim for costs of $678.74
and we will allow it.

With respect to the fee petition, the State asserts that the
hours claimed should reflect a reduction of 50% because of
the limited success on the fee petition. We have held "that
the fee reduction rationale of Hensley. . . applies by force
of the Court's reasoning to fees generated in the litigation
of a fee petition, and compels us to treat the fee petition
litigation as a separate entity subject to lodestar and
Hensley reduction analysis." Institutionalized Juveniles v.
Secretary of Pub. Welfare, 758 F.2d 897, 924 (3d Cir. 1985);
accord, Durette v. Cohen, 790 F.2d 360 (3d Cir. 1986); see
also West Virginia University Hospitals, Inc., 898 F.2d at
367. We believe that this proposal is r easonable, and

                                11
applying the rates we have already held to be r easonable,
we approve the following sums:

          McLaughlin   0.35   hours   x   $250   =   $ 87.50
          Fitinides    5.85   hours   x   $120   =   $ 702.00
          Frietsche     1.4   hours   x   $150   =   $ 210.00
          Shapiro       0.4   hours   x   $90    =   $ 36.00
          Weishaupt    4.45   hours   x   $265   =   $1179.25
          Kreimer      0.25   hours   x   $250   =   $ 62.50
           TOTAL       12.7   hours                  $2277.28

V.

Accordingly, we hold that the lodestar pr oposed by the
State is reasonable and award $37,379.80 as attorneys'
fees for the work performed on appeal. W e will award
$2277.28 for preparation of the fee petition. W e will award
the full amount of costs claimed, $678.74; this amount is
reasonable and uncontested. The State is dir ected to pay
the same to individual counsel in the sums set forth above.

A True Copy:
Teste:

          Clerk of the United States Court of Appeals
          for the Third Circuit

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