Commonwealth of Pennsylvania v. Delaware Valley Citizens Council for Clean Air Brief of Respondent

    No. 85-5

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1985

Commonwealth of Pennsylvania et al.,
Petitioners,

v .

Delaware Valley Citizens’ Council 
for Clean Air et al,

Respondents.

On Writ of Certiorari to the United States Court 
of Appeals for the Third Circuit

BRIEF OF RESPONDENT 
DELAWARE VALLEY CITIZENS’ COUNCIL 

FOR CLEAN AIR

JAMES D. CRAWFORD* 
JOYCE S. MEYERS 
WILLIAM J. MAFFUCC1

Attorneys for Respondents

Schnader, Harrison, Segal & Lewis
Suite 3600
1600 Market Street
Philadelphia, Pennsylvania 19103
215-751-2162

Of Counsel.
*Counsel of Record

PACKARD PRESS / LEGAL DIVISION, 10th & SPRING GARDEN STREETS, PHILA.. PA. 19123 (215) 236-2000



QUESTIONS PRESENTED
1. Did not the district court correctly apply the law in a 

manner consistent with Blum v. Stenson, 465 U.S. 886 (1984), 
by increasing the basic fee award in three of the nine phases 
of the litigation for the risk of not prevailing and in one phase 
for the superior quality of counsel’s work when these factors 
were not reflected in the basic hourly rate?

2. Was not the use of a multiplier of two for the risk of 
not prevailing in three phases and an additional multiplier of 
two to reflect the superior quality of counsel’s work in one 
phase within the district court’s discretion and fully justified 
by the unique facts and circumstances of this case?

3. Was not the award of attorneys’ fees for work in re­
lated administrative proceedings a proper exercise of the dis­
trict court’s discretion under circumstances where the district 
court found that these activities were necessary for monitor­
ing compliance with the consent decree and protecting 
DVCCCA’s rights under the consent decree?

4. Should not the overall fee award be affirmed even if 
the fee might better have been structured differently had the 
district court had the benefit of the Blum opinion, since the 
court reduced both the number of hours and the hourly rates 
requested by DVCCCA with the expectation that it could use 
multipliers to adjust the lodestar in order to award a reason­
able attorneys’ fee?

i



TABLE OF CONTENTS

Page
QUESTIONS PRESENTED.......................................... i
TABLE OF AUTHORITIES........................................  iv
STATEMENT OF THE CASE......................................  1
SUMMARY OF ARGUMENT......................................  6
ARGUMENT.................................................................  8

I. THE FEE AWARD SHOULD BE AFFIRMED 
BECAUSE THE DISTRICT COURT COR­
RECTLY APPLIED THE LAW, AND THE RE­
SULT IS CONSISTENT WITH THE 
PRINCIPLES ENUNCIATED IN BLUM v. 
STENSO N ............................................................  8

II. THE INCREASE OF THE FEE AWARD IN 
PHASES IV, V, AND VII ON THE BASIS OF 
THE RISK OF NOT PREVAILING WAS 
PROPER IN LIGHT OF THE LAW, SOUND 
POLICY CONSIDERATIONS, AND THE 
FACTS OF THE CASE......................................  13
A. A District Court’s Discretion To Increase a

Fee Award Based on the Risk of Not Prevail­
ing Is an Essential Part of the Legislative 
Scheme Underlying Attorneys’ Fee Statutes 
and Rests on Sound Policy Considerations . . 14

B. The Decisional Law Clearly Permitted the
District Court To Increase the Fee Award 
Based on the Risk of Not Prevailing............. 18

C. The Increase of the Fee Award Based on the
Risk of Not Prevailing Is Especially Compel­
ling in This Case Because of the Extreme Re­
calcitrance of the Commonwealth, the 
Difficult Issues of Federalism, and the Pro­
tracted Nature of the Litigation....................  22

u



TA B LE O F C O N T E N T S— (Continued)

Page
HE THE USE OF A MULTIPLIER FOR QUALITY 

IN PHASE V WAS FULLY JUSTIFIED UN­
DER THE BLUM CRITERIA...........................  25

IV. THE MULTIPLIERS USED WERE REASON­
ABLE UNDER THE EXTRAORDINARY CIR­
CUMSTANCES OF THIS LITIGATION AND 
WERE ADEQUATELY SUPPORTED BY 
FINDINGS OF FA C T........................................  29

V. UNDER THE CIRCUMSTANCES OF THIS 
CASE, THE DISTRICT COURT PROPERLY 
AWARDED ATTORNEYS’ FEES FOR COM­
MENTING ON REGULATIONS AND SUB­
MITTING COMMENTS AT A PUBLIC 
HEARING....................................................   34

VI. BECAUSE THE DISTRICT COURT STRUC­
TURED ITS FEE AWARD BEFORE BLUM, 
THIS COURT SHOULD TAKE INTO AC­
COUNT ALL OF THE ADJUSTMENTS TO 
THE REQUESTED FEE AND NOT MERELY
THE USE OF MULTIPLIERS...........................  37

CONCLUSION...............................................................  40

iii
r



CASES: Page
Arenson v. Board of Trade, 372 F. Supp. 1349 (N.D. 111.

1974)........................................................................ 30
Blum v. Stenson, 465 U.S. 886 (1984)....... .................passim
Bond v. Stanton, 630 F.2d 1231 (7th Cir. 1980)............. 34

TABLE OF AUTHORITIES

Burd v. Commonwealth, 66 Pa. Commw. 129, 443 A.2d 
1197 (1982), rev’d on other grounds sub nom. Scanlon v. 
Commonwealth, 502 Pa. 577, 467 A.2d 1108 (1983). 5

City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir.
1974)....................................................................... 9, 10

Clayton v. Thurman, 775 F.2d 1096 (10th Cir. 1985) . . .  39
Copeland v. Marshall, 641 F.2d 880 (D.C. 1980)............. 9
Crumbaker v. Merit Systems Protection Board, No. 85-1982 

(Fed. Cir. jan. 8, 1986) (LEXIS, Genfed library, 
Courts file)........................................................  9, 19-20

Davis v. Combustion Engineering, 742 F.2d 916 (6th Cir.
1984).................. ............................................. . 21

Delaware Valley Citizens' Council for Clean Air v. Pennsyl­
vania (various actions)
674 F.2d 976 (3d Cir.), cert, denied, 459 U.S. 905 

(1982) ...............................................................  3
533 F. Supp. 869 (E.D. Pa.), aff'd, 678 F.2d 470 (3d

Cir.), cert, denied, 459 U.S. 969 (1982)........... 4, 25
533 F. Supp. 885 (E.D. Pa. 1982).......................... 4
674 F.2d 987 (3d Cir. 1982) .................................. 4
458 U.S. 1125 (1982)...............................................  4
674 F.2d 970 (3d Cir. 1982) ..................................  4
551 F. Supp. 827 (E.D. Pa. 1982)..........................  4

IV



755 F.2d 38 (3d Cir.), cert, denied,----- U.S-------106
S. Ct. 67 (1985).................................... ...........  5

Fried v. Utilities Leasing Corp., [1976-1977 Transfer
Binder] Fed. Sec. L. Rep. (CCH) 11 95,965............. 30

Garnty v. Sununu, 752 F.2d 727 (1st Cir. 1984).......  34, 39
Graves v. Barnes, 700 F.2d 220 (5th Cir. 1983)............. 9
Hall v. Borough of Roselle, 747 F.2d 838 (3d Cir. 1984) . 19
Hensley v. Eckerhart, 461 U.S. 424 (1983).......  9, 27, 33, 35
In re Gypsum Cases, 386 F. Supp. 959 (N.D. Cal. 1974) . 30
In re Illinois Congressional Districts Reapportionment Cases,

704 F.2d 380 (7th Cir. 1983)..................................  9
International Travel Arrangers v. Western Airlines, 623 F.2d

1255 (8th Cir. 1980)...............................................  9
Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir.

1974)......................' ....................................... 14-15,21
Jones v. Central Soya Co., 748 F.2d 586 (11th Cir. 1984). 19
Jordan v. Heckler, 744 F.2d 1397 (10th Cir. 1984).........  21
Keith v. Volpe, 501 F. Supp. 403 (C.D. Cal. 1980).........  30
LaDake v. Nelson, 762 F.2d 1318 (9th Cir. 1985)........... 19
Laffey v. Northwest Airlines, 746 F.2d 4 (D.C. Cir. 1984),

cert, denied, ___ U.S. ----- , 105 S. Ct. 3488
(1985)...................................................................  20-21

Lindy Bros. Builders v. American Radiator Standard San­
itary Corp., 487 F.2d 161 (3d Cir. 1973), 540 F.2d 
102 (3d Cir. 1976) (en banc) ..................................  9

Louisville Black Police Officers Organization v. City of Lou­
isville, 700 F.2d 268 (6th Cir. 1983)......... ..............  9

Maceira v. Pagan, 698 F.2d 38 (1st Cir. 1983)..............  9
Malchman v. Davis, 761 F.2d 893 (2d Cir. 1985)........... 21

v



McKinnon v. City of Berwyn, 750 F.2d 1383 (7th Cir.
1984) ......    17, 20

Miller v. Carson, 628 F.2d 346 (5th Cir. 1980)..............  34
Moore v. City of Des Moines, 766 F.2d 343 (8th Cir.

1985) ........................... ..........................................  19
Municipal Authority v. Pennsylvania, 527 F. Supp. 982

(M.D. Pa. 1981)..................   10, 30
Murray v. Weinberger, 741 F.2d 1423 (D.C. Cir.

1984)...........................................    19. 20
Northcross v. Board of Education, 611 F.2d 624 (6th Cir.

1979), cert, denied, 447 U.S. 911 (1980)..............  15, 34
Ohio-Sealy Mattress Manufacturing Co. v. Sealy Inc., 776

F.2d 646 (7th Cir. 1985)....................................  11, 20
Ramos v. Lamm, 713 F.2d 546 (10th Cir. 1983)............. 9
Sierra Club v. Clark, 755 F.2d 608 (8th Cir. 1985).........  10
Sims v. Jefferson Downs Racing Association, No. 83-3606 

(5th Cir. Dec. 18, 1985) (LEXIS, Genfed library, 
Court file).................................................................  21

Stanford Daily v. Zurcher, 64 F.R.D. 680 (N.D. Cal. 1974), 
a ff’d, 550 F.2d 464 (9th Cir. 1977)........................  15

Ursic v. Bethlehem Mines, 719 F.2d 670 (3d Cir. 1983) . . 26
Vaughns v. Board of Education, 770 F.2d 1244 (4th Cir.

1985)................................................................................ 9’ 19
Webb v. Board of Education, -----  U.S. ----- , 105 S. Ct.

1923 (1985)................................................................. 35
White v. City of Richmond, 713 F.2d 458 (9th Cir. 1983). 9
Wildman v. Lemer Stores Corp., 771 F.2d 605 (1st Cir.

1985).......................................................................... 17’ 19
Yates v. Mobile County Personnel Board, 719 F.2d 1530

(11th Cir. 1983).................................................... 98, 16

vi



STATUTES:
42 U.S.C. § 1988 (1982)....................     14
42 U.S.C. § 7402 (1982).............................    25
42 U.S.C. § 7604 (1982).................................................  2
42 U.S.C. § 7604(d) (1982).......................................... 2, 38

OTHER AUTHORITIES
Congressional Materials

S. Rep. No. 1011,94th Cong., 2d Sess., reprinted 
in 1976 U.S. Code Cong. & Ad. News 
5908 ................................................ 14, 14-15

Legal Journals
Berger, Court Awarded Attorneys’ Fees: What Is 

“R e a s o n a b le 126 U. Pa. L. Rev. 281 
(1977)....................... ...............................  16

Leubsdorf, The Contingency Factor in Attorney Fee
Awards, 90 Yale L.J. 473 (1981)....... . 17-18

Comment, Citizens Association of Georgetown v. 
Washington: Awarding Attorneys’ Fees in Cit­
izen Suits to Enforce the Clean Air Act, 125 U.
Pa. L. Rev. 1402 (1977).......................  14, 16

Note, Awards of Attorneys’ Fees to Unsuccessful En­
vironmental Litigants, 96 Harv. L. Rev. 677 
(1983)...............................................  14, 16, 17

vii



No. 85-5

IN THE
SUPREME COURT OF THE UNITED STATES

October Term, 1985

Commonwealth of Pennsylvania et al.,
Petitioners,

v.
Delaware Valley Citizens’ Council 

for Clean Air et al.,
Respondents.

On Writ of Certiorari to the United States Court 
of Appeals for the Third Circuit

BRIEF OF RESPONDENT 
DELAWARE VALLEY CITIZENS’ COUNCIL 

FOR CLEAN AIR

STATEMENT OF THE CASE 

Procedural History
After having obtained substantial relief against the Com­

monwealth of Pennsylvania (“the Commonwealth”) in the 
substantive litigation involving provisions of the Clean Air 
Act, Delaware Valley Citizens’ Council for Clean Air 
(“DVCCCA”) moved for attorneys’ fees of $336,305.00, ex­
clusive of court costs and the time involved in preparing the

1



2

fee petition, under 42 U.S.C. § 7604(d). In a judgment dated 
February 24, 1984, the district court disallowed or reduced 
some portions of DVCCCA’s request but awarded DVCCCA 
attorneys’ fees in the amount of $216,488.03, including court 
costs and fee petition preparation time. On an appeal by the 
Commonwealth and cross-appeal by DVCCCA to the United 
States Court of Appeals for the Third Circuit, the judgment 
of the district court was affirmed in its entirety, one judge 
dissenting on the use of multipliers. The Commonwealth 
now challenges the order of the court of appeals.

Statement of Facts

Pursuant to the Clean Air Act of 1970, the Pennsylvania 
Department of Environmental Resources in 1973 submitted 
a plan for meeting federal air quality standards in several 
areas of Pennsylvania. As modified and approved by the En­
vironmental Protection Agency (“EPA”), the plan included a 
provision requiring a program for the inspection and main­
tenance of automobile emission systems (“I/M Program”). In 
1976, because the Commonwealth had failed to implement 
an I/M Program, DVCCCA brought suit against the EPA and 
the Commonwealth under 42 U.S.C. § 7604. The EPA was 
later dismissed as a defendant when it, too, instituted an ac­
tion against the Commonwealth.

In August 1978, the lawsuits were terminated when the 
Commonwealth agreed to a final consent decree in which it 
undertook to implement an I/M Program for ten counties. 
The Commonwealth, however, failed to comply with the re­
quirements of the consent decree. Instead, it used every 
means at its disposal, including legislative action, resort to 
state courts, and attempted collaboration with the federal 
government, to circumvent the requirements of the consent 
decree and delay implementation of the I/M Program. As a 
result, more than six million Pennsylvanians were forced to 
breathe dangerously polluted air. DVCCCA was forced to en­
gage in substantial activities to enforce the decree, for which



3

activities it sought reasonable attorneys’ fees. For ease of anal­
ysis, the fee petition divided these activities into nine phases.

Phase I involved DVCCCA’s motion to find the Com­
monwealth in violation of the decree by failing to publish pro­
posed regulations for the program by July 1, 1979. The 
regulations were thereupon published, in effect mooting 
DVCCCA’s motion. On September 20, 1979, a hearing was 
held before the district court at which a new implementation 
schedule was established. Phase II involved the submission by 
DVCCCA of comments concerning the proposed regulations 
that were required by the consent decree. Because of 
DVCCCA’s comments, substantial revisions were made in the 
proposed regulations. Phase III of the litigation involved a 
modification of the consent decree.

Phase IV stemmed from another attempt by the Com­
monwealth to obtain a postponement of the implementation 
of an I/M Program, which, although ultimately unsuccessful 
on the merits, resulted in a twelve month delay. The federal 
government did not oppose the Commonwealth’s efforts or 
support DVCCCA in its opposition to these efforts. 
DVCCCA moved the district court to find the Common­
wealth in violation of the consent decree, and on May 20, 
1981, the court did so. (J. App. 25a).1 On June 10, 1981, the 
district court held a hearing on the Commonwealth’s motion 
for reconsideration of that May 20 order, and on June 16 it 
denied that request. (J. App. 44a). A substantial amount of 
litigation followed, including requests for a stay filed by the 
Commonwealth in the district court and the court of appeals, 
and culminating in affirmance of the district court’s orders by 
the court of appeals and a denial of a petition for certiorari 
by this Court. 674 F.2d 976 (3d Cir.), cert, denied, 459 U.S. 905 
(1982). This phase of the litigation resulted in a clearer def­
inition of the I/M Program, including the specification of a 
requisite number of inspection stations and referee stations 
and of a set type of equipment.

1. “J. App.” refers to the Joint Appendix. “Pet. App." refers to the 
appendix to the Petition for Writ of Certiorari filed by the Commonwealth.



4

Phase V resulted from the enactment by the Common­
wealth General Assembly, over the veto of the Governor, of 
a law preventing expenditure of state funds for fulfillment of 
the Commonwealth’s legal obligation under the consent de­
cree to establish an I/M Program. A tremendous amount of 
litigation involving the Commonwealth’s failure to comply 
culminated in a finding of contempt on the part of the Com­
monwealth and the establishment of a sanction enjoining the 
award of some $400 million in federal highway funds to the 
Commonwealth except for mass transit, highway safety, or 
pollution reduction projects. 533 F. Supp. 869 (E.D. Pa. 
1982). The district court refused the Commonwealth’s peti­
tion to stay the contempt order pending appeal, 533 F. Supp. 
869 (E.D. Pa. 1982); the court of appeals granted a stay and 
denied a petition for rehearing en banc, 674 F.2d 987 (3d Cir. 
1982), but then affirmed the district court’s order declaring 
the Commonwealth in contempt and imposing the sanction. 
678 F.2d 470 (3d Cir. 1982). The Commonwealth petitioned 
this Court for a stay of the court of appeals’ decision and for 
certiorari. Both petitions were denied. 458 U.S. 1125 (1982), 
459 U.S. 969 (1982). The actions of the Commonwealth in 
Phase V resulted in an additional delay of twenty-five months 
in the implementation of an I/M program.

As a direct result of the Commonwealth’s failure to com­
ply with the decree, several parties, including various Penn­
sylvania legislators, attempted to intervene in the action. To 
protect its rights under the consent decree, DVCCCA op­
posed, successfully, these interventions. 674 F.2d 970 (3d Cir. 
1982). This comprised Phase VI.

In Phase VII, the Commonwealth proposed that the dis­
trict court exempt several major highway construction 
projects from the contempt sanction that had been imposed 
by the district court. The United States government certified 
that these programs were proper exemptions, but DVCCCA 
argued to the district court that the court should approve 
onlv two minor exemptions and disapprove five major pro­
gram exemptions. The district court adopted DVCCCA’s ap­
proach. 551 F. Supp. 827 (E.D. Pa. 1982).



Phase VIII entailed activities in connection with the pas­
sage of necessary I/M legislation that permitted the I/M Pro­
gram to go foward and the district court’s resulting order to 
vacate the contempt sanction. Phase IX consisted of two el­
ements: actions by DVCCCA’s attorneys in state court op­
posing yet another attempt by several members of the 
Pennsylvania General Assembly to prevent implementation 
of the I/M Program, Burd v. Commonwealth, 66 Pa. Commw. 
129, 443 A.2d 1197 (1982), rev’d on other grounds sub nom. 
Scanlon v. Commonwealth, 502 Pa. 577, 467 A.2d 1108 (1983), 
and participation by these attorneys in EPA regulatory activ­
ity in response to several requests by the Commonwealth for 
modifications in the state plan that would have substantially 
affected DVCCCA’s rights under the consent decree. See also 
755 F.2d 38 (3d Cir. 1982) (affirming district court’s denial of 
Commonwealth’s March 1984 motion to vacate 1978 consent 
decree), cert, denied,___  U.S.___ , 106 S. Ct. 67 (1985).

In determining the attorneys’ fee aw’ard, the district 
court eliminated more than one-third of the hours requested. 
Some of these hours were eliminated because they were not 
documented in sufficient detail. Most of the hours in this cat­
egory were expended by an attorney who did not keep con­
temporaneous time records during parts of the litigation and 
had to reconstruct the time spent based on other records. 
Although the court was “satisfied that the reconstruction was, 
for the most part, carefully and accurately done,” it con­
cluded that it “must require more” in the way of specificity for 
such reconstructed records and, therefore, denied compen­
sation for many hours. (Pet. App. 12a). Additional hours 
were excluded because the court disallowed all time spent by 
attorneys in preparing for or attending hearings at w hich an­
other attorney for DVCCCA took the lead. (Pet. App. 13a- 
14a). This rule was applied uniformly without a specific 
inquiry into the contribution of a particular lawyer to the out­
come of a hearing. The court also denied a limited number 
of hours for activities in related proceedings that it found 
were not necessary to protect DVCCCA’s rights under the 
consent decree. Finally, hundreds of hours w’ere eliminated

5



6

based on the court’s conclusion, largely without explanation, 
that the time spent on a particular activity was “excessive” and 
that a lesser amount was “reasonable.” Most of the hours 
eliminated on this ground had been spent in legal research 
and analysis or preparation of briefs, particularly in Phases 
V, VI, and VII (Pet. App. 28a-29a, 31a, 33a).

The district court also rejected requested rates based on 
attorney experience and determined the rates for the hours 
allowed based on the nature of each activity performed. The 
highest hourly rate, applied to work that the court found to 
be “the most difficult,” was $100.00. A rate of $65.00 was 
applied to tasks that the court found could have been done by 
an attorney at the associate level. For work that “required 
little or no legal ability,” the rate was $25.00. (Pet. App. 14a- 
15a). The result was a reduction in the average hourly rate by 
more than a quarter.

The district court multiplied the number of hours al­
lowed by the hourly rate for each portion of the work to es­
tablish a “lodestar” figure which was less than half of the 
requested lodestar. The court then multiplied the lodestar 
for Phases IV, V, and VII, “where likelihood of success was 
least,” to reflect the contingent nature of those phases of the 
litigation. (Pet. App. 39a). The court applied an additional 
multiplier to Phase V based on its finding that the work in 
Phase V was “superior” and produced an “outstanding 
result.” (Pet. App. 39a).

SUMMARY OF ARGUMENT
The fee award should be affirmed in all respects not only 

because the district court correctly applied the law as it ex­
isted before this Court’s decision in Blum v. Stenson, 465 U.S. 
886 (1984), but also because the result is consistent with the 
principles enunciated in Blum, The district court did not en­
gage in “double counting” when it adjusted the fee upward 
for the risk of not prevailing in three of the nine phases of the 
litigation and for the superior quality of counsel’s work in one 
phase because these factors were not included in the number



of hours allowed or the basic hourly rate established by the 
district court for those phases.

The risk of not prevailing is a proper basis for increasing 
a fee award under certain circumstances. The practice is con­
sistent with the intent of Congress in enacting fee-shifting 
statutes and is necessary to assure the vindication of rights 
under the numerous federal statutes that embody important 
national policies and priorities. This practice, which has been 
approved by many commentators and accepted, with minor 
variations, by the courts of appeals of all thirteen circuits, 
should be formally approved by this Court.

The increase of the fee award for the risk of not pre­
vailing in three phases of the litigation was especially com­
pelling in this case. DVCCCA faced unique obstacles to 
success as the Commonwealth relentlessly marshalled the 
forces of its executive, legislative, and judicial branches to cir­
cumvent the requirements of a federal court order. The 
Commonwealth even sought the collaboration of the Tinted 
States government and obtained its support in seeking ex­
emptions to the crucial contempt sanction imposed by the 
district court, sanctions which eventually persuaded the 
Commonwealth to abide by the consent decree. Because the 
Commonwealth’s defiance of a federal court order created 
difficult issues concerning state sovereignty and the limits of 
federalism, DVCCCA’s risk of not prevailing was substantial.

The upward adjustments for the risk of not prevailing 
and the quality of representation were fully justified by the 
facts and demonstrated substantial judicial restraint. While 
the district court found that “the contingent nature of 
plaintiffs’ success has been apparent throughout this 
litigation,’’ it awarded a multiplier for this factor only in the 
three phases “where likelihood of success was least. Simi­
larly, although the district court awarded its highest hourly 
rate for that portion of the work requiring significant legal 
ability in several phases of the litigation, it increased the basic 
fee for quality of representation in only the one phase in 
which it found that the work was “superior and produced an 
“outstanding result.”

7



8

Moreover, the district court was correct in awarding fees 
for services in related administrative proceedings based on its 
finding that this work was necessary to enforce DVCCCA’s 
rights under the consent decree. This portion of the fee 
award is fully supported by case law and serves to implement 
the policies underlying the fee-shifting statutes.

Finally, the Court should take into account the fact that 
the district court framed its fee award before Blum and, thus, 
without the benefit of this Court’s Blurn analysis. Accordingly, 
the district court reduced both the hours and the hourly rates 
requested by DVCCCA in the expectation that it could make 
upward adjustments by means of a multiplier in order to 
achieve the reasonable attorneys’ fee Congress intended. 
Since the final fee was a reasonable one, this Court should not 
reverse even though it might require district courts post -Blum 
to treat contingency risks through additional hours and 
higher hourly rates and to compensate extraordinary quality 
by increasing rates and taking into account all of the hours 
worked rather than by reducing the number of hours and 
then rewarding counsel for how much they accomplished in 
so little time.

ARGUMENT

I. THE FEE AWARD SHOULD BE AFFIRMED BE­
CAUSE THE DISTRICT COURT CORRECTLY AP­
PLIED THE LAW, AND THE RESULT IS 
CONSISTENT WITH THE PRINCIPLES ENUNCI­
ATED IN BLUM v. STENSON.

The district court in this case followed the well estab­
lished approach of calculating attorneys’ fees in two steps. 
First, the court calculated a “lodestar” figure by multiplying 
the total number of compensable hours by the hourly rates 
set by the court for the services rendered. The court then 
adjusted the lodestar to reflect additional factors that were not 
included in the lodestar calculation, specifically the quality of the 
work and the risk of not prevailing. This method of deter­
mining attorneys’ fee awards has been expressly approved



9

and applied, with some variations, by thirteen courts of ap­
peals. See Maceira v. Pagan, 698 F.2d 38, 39 (1st Cir. 1983); 
City of Detroit v. Grinnell Corp., 495 F.2d 448, 470-71 (2nd Cir. 
1974); Lindy Bros. Builders v. American Radiator & Standard 
Sanitary Corp., 487 F.2d 161, 168 (3rd Cir. 1973) (“Lindy /”), 
540 F.2d 102, 117-18 (3rd Cir. 1976) (en banc) (“Lindy II ”); 
Vaughns v. Board of Education, 770 F.2d 1244, 1245 (4th Cir. 
1985); Graves v. Barnes, 700 F.2d 220, 222 (5th Cir. 1983); 
Louisville Black Police Officers Organization v. City of Louisville, 
700 F.2d 268, 275-77 (6th Cir. 1983); In re Illinois Congres­
sional Districts Reapportionment Cases, 704 F.2d 380, 382-83 
(7th Cir. 1983); International Travel Arrangers v. Western Air­
lines, 623 F.2d 1255, 1274 (8th Cir. 1980); White v. City of 
Richmond, 713 F.2d 458, 460-62 (9th Cir. 1983); Ramos v. 
Lamm, 713 F.2d 546, 552-58 (10th Cir. 1983); Yates v. Mobile 
County Personnel Board, 719 F.2d 1530, 1532-34 (11th Cir. 
1983); Copeland v. Marshall, 641 F.2d 880, 892-94 (D.C. Cir. 
1980); Crumbakerv. Merit Systems Protection Board, No. 85-1982 
(Fed. Cir. Jan. 8, 1986) (LEXIS, Genfed library, Courts file).

There is nothing in this Court’s recent pronouncements 
on the subject of attorneys’ fee awards that would invalidate 
this approach. In Hensley v. Eckerhart, 461 U.S. 424, 434 
(1983), this Court held that the “product of reasonable hours 
times a reasonable rate does not end the inquiry. There re­
main other considerations that may lead the district court to 
adjust the fee upward or downward. . . .” The district court 
in this case explicitly relied on Hensley in applying a multiplier 
to three of the nine phases of the litigation. (Pet. App. 8a-9a, 
38a).

The Commonwealth argues that the multipliers for qual­
ity and the risk of not prevailing are in conflict with this 
Court’s holding in Blum v. Stenson, 465 U.S. 886 (1984) 
(Comm. Brief at 10-11, 18-20), arguing that these multipliers 
represent a form of “double counting” that was rejected in 
Blum. The Commonwealth’s argument lacks merit for two 
reasons. First, there is nothing in Blum that precludes the ap­
plication of multipliers for either the risk of not prevailing or 
the quality of work. Second, the use of multipliers did not



10

constitute double counting in this case because the district 
court did not include the risk of not prevailing and the quality 
of work as factors in setting the hourly rate for the three 
phases in which multipliers were used.

In Blum, the majority explicitly declined to address the 
use of the contingency factor in fee awards, thus leaving the 
well established practice intact, see 465 U.S. at 901 n. 17, while 
the concurrence explicitly argued that the contingency of 
success is a proper basis on which to base fee adjustments. 465 
U.S. at 902-04. The Court also noted that the quality of rep­
resentation is only “generally” reflected in an hourly rate and 
that upward adjustments based on quality may still be justi­
fied. Blum, 465 U.S. at 899.

Of course, the district court did not have the benefit of 
the Blum opinion when it determined the fee award in this 
case. Thus, its explanation of the basis for the award may not 
have been cast in the precise language approved in Blum. The 
Commonwealth attempts to capitalize on this fact by noting 
the district court’s reference to “new and novel issues” (Pet. 
App. 39a) involved in the case. The Commonwealth is relying 
on this Court’s holding in Blum that the novelty and com­
plexity of issues should not have been considered indepen­
dent factors in the upward adjustment of the basic fee in that 
case because they were “presumably” reflected in the number 
of billable hours recorded by counsel. 465 U.S. at 898. This 
reliance, however, is misplaced. Blum did not forbid consid­
eration of the novelty and complexity of issues to the extent 
that they reflect the contingent nature of success and the 
quality of the legal services rendered. See, e.g., Sierra Club v. 
Clark, 755 F.2d 608, 620 (8th Cir. 1985) (rejecting challenge 
based on Blum to enhancement of award based on “novel” 
issue as well as contingency and quality). See also City of Detroit 
v. Cnnnell Corp., 495 F.2d 448, 471 (2d Cir. 1974) (“the tan­
gible factors which comprise the ‘risk of litigation’ might be 
determined by asking the following questions: . . . are the is­
sues novel and complex or straightforward and well worn?”); 
Municipal Authority v. Pennsylvania, 527 F. Supp. 982, 1000 
(M.D. Pa. 1981) (“novelty” of legal and factual issues listed as



11

one of the factors evidencing the contingent nature of the 
litigation).

The district court in this case clearly did not consider the 
novelty of the issues as a separate factor justifying the upward 
adjustment. Instead, the district court explicitly increased the 
fee award based on the factors of quality and the contingent 
nature of DVCCCA’s success. (Pet. App. 39a). A passing ref­
erence to “new and novel issues” was included in the district 
court’s description of the “contingent nature of plaintiff’s 
success” as one of several reasons for the riskiness of the un­
dertaking. (Pet. App. 39a). Had the district court had the 
benefit of the Blum opinion, it might have avoided this lan­
guage. Nevertheless, the relevant inquiry is not whether it 
used an impermissible word but whether in fact it engaged in 
“double counting.” An analysis of the court’s approach dem­
onstrates that it did not.2

The district court’s total analysis of the fee award was 
based on certain assumptions about the legal framework for 
establishing such an award. (Pet. App. 7a-9a). Thus, on the 
assumption that upward adjustments were proper for the 
risk of not prevailing and quality of work, the district court 
did not incorporate these factors into the hourly rates or the 
number of hours allowed. On the contrary, the district court 
strictly scrutinized the hours for which fees were requested 
and eliminated a large number of them. Indeed, as the Com­
monwealth notes, in those phases of the case in which the 
district court enhanced the lodestar, it reduced the number 
of hours for which fees were allowed by almost fifty percent 
of the hours requested. (Comm. Brief at 20). Contrary to the

2. The Seventh Circuit has recently noted that “the district court can 
make an adjustment in the process of computing a lodestar or after com­
puting a lodestar, so long as the court provides an explanation for each 
adjustment and does not adjust for the same factor twice. . . . The district 
court is in the best position to determine what fees are reasonable, and the 
court does not abuse its discretion by modifying the lodestar or other fee 
setting approach into a method more convenient on the facts of a particular 
case.” Ohio-Sealy Mattress Manufacturing Co. v. Sealy Inc., 776 F.2d 646, 651 
n.3 (7th Cir. 1985).



12

Commonwealth’s representations, however, most of these re­
ductions did not reflect on the quality or efficiency of 
counsel’s work. Rather, the court questioned the recon­
structed time records of work concededly done, ruled that 
more than one lawyer could never be compensated for par­
ticipating in a hearing, or simply concluded that the amount 
of time spent on legal research and analysis and preparation 
of briefs which produced a superior product was, neverthe­
less, “excessive,” not recognizing that these activities are 
among the most labor-intensive and time-consuming of all 
those in which attorneys engage. In addition, the district 
court established hourly rates for each task performed based 
solely on the nature of the task — i.e., the extent to which it 
required the application of legal skills or ability — with ref­
erence to neither the quality of the work produced nor the 
risk of not prevailing in that phase of the work.

Thus, the kind of double counting about which the Com­
monwealth complains simply did not occur. This is obvious 
from the fact that the same rules concerning the hours al­
lowed and the same hourly rates were applied to all nine 
phases of the litigation while multipliers for the risk of not 
prevailing were applied to only three phases and a multiplier 
for quality was applied to only one. Clearly, the district court 
did not reflect the risk of not prevailing or the quality of the 
work in the number of hours or the hourly rates established 
for phases IV, V, and VII.

As the above analysis demonstrates, both the approach 
used and the award granted reflect a correct application of 
the law that is not in conflict with the principles enunciated in 
Blum. Both the Commonwealth and the United States ask this 
Court to reverse the fee award and hold that the risk of not 
prevailing is no longer a permissible basis for applying an 
upward adjustment. For reasons that will be discussed more 
fully below, such a result would conflict with congressional 
intent and undermine the important policies underlying fee- 
shifting statutes.

Moreover, such a result would constitute not a clarifica­
tion of existing law but a sharp break with practices that have



13

been almost universally accepted in the federal courts of ap­
peals. If the Court were to determine that such a radical de­
parture from previous law is appropriate, it would be 
inequitable to enforce such a ruling retroactively and apply it 
to the hundreds of fee awards already determined under well 
established legal principles. It would clearly be unfair to re­
duce the fee award in this case by eliminating the multipliers 
without allowing the district court to reexamine and recalcu­
late the hours it allowed and the hourly rates it established on 
the assumption that upw'ard adjustments were permissible. 
Thus, if the Court should decide to change the method of 
calculating fee awards, it should either impose this change 
prospectively or it should remand the fee aw'ard in this case 
for reconsideration in light of the new standard.

II. THE INCREASE OF THE FEE AWARD IN PHASES 
IV, V, AND VII BASED ON THE RISK OF NOT PRE­
VAILING WAS PROPER IN LIGHT OF THE LAW, 
SOUND POLICY CONSIDERATIONS, AND THE 
FACTS OF THE CASE.
When Congress undertook to encourage private en­

forcement of various remedial statutes by permitting the 
award of reasonable attorneys’ fees to successful plaintiffs, it 
included in its view of reasonableness the fact that lawyers ran 
the risk of no recovery because of the danger that the rights 
they sought to vindicate might not be recognized and the vir­
tual assurance that any payment would be delayed. Every 
court of appeals has reached this conclusion. Most important, 
the facts of this case show just why either an upward adjust­
ment in either hourly rates or the application of a multiplier 
to the lodestar is vital to accomplish the congressional pur­
pose under the Clean Air Act of 1970.



A. A District Court’s Discretion To Increase a Fee Award 
Based on the Risk of Not Prevailing Is an Essential 
Part of the Legislative Scheme Underlying Attorneys’ 
Fee Statutes and Rests on Sound Policy Consider­
ations.

The congressional purpose underlying the attorneys’ 
fees provisions of statutes such as the Clean Air Act is to en­
courage litigation aimed at furthering the substantive goals of 
the statutes while deterring frivolous or harassing suits. See, 
e.g., Note, Awards of Attorneys’ Fees to Unsuccessful Environmen­
tal Litigants, 96 Harv. L. Rev. 677, 685 (1983); Comment, Cit­
izens Association of Georgetown v. Washington: Awarding 
Attorneys’ Fees in Citizen Suits to Enforce the Clean Air Act, 125 
U. Pa. L. Rev. 1402, 1409, 1410-11 (1977). The legislative 
history of the Civil Rights Attorney’s Fees Award Act of 1976, 
42 U.S.C. § 1988, makes it clear that the intent of Congress 
was to provide adequate compensation to attract competent 
counsel to act as “private attorneys general.” See S. Rep. No. 
1011, 94th Cong., 2d Sess. 1, reprinted in 1976 U.S. Code 
Cong. & Ad. News 5908, 5910-13 (“Senate Report”).

Permitting trial courts to award a premium based on the 
risk of not prevailing is essential to the achievement of these 
congressional goals. For, as the Solicitor General has ac­
knowledged: “No one expects a lawyer whose compensation 
is contingent upon his success to charge, when successful, as 
little as he would charge a client who in advance had agreed 
to pay for his services, regardless of success.” Brief for the 
United States at 19, Blum v. Stenson, 465 U.S. 886 (1984).

The legislative history demonstrates that Congress in­
tended fee-shifting statutes to permit upward adjustments in 
fee awards based on the risk of not prevailing. Congress em­
phasized the appropriateness of upward adjustments in gen­
eral by requiring that the standards governing other complex 
federal litigation, such as antitrust cases, also govern § 1988 
fee awards. Senate Report at 5913. The Senate Report also 
acknowledged the propriety of an upward adjustment for the 
contingent nature of payment by citing Johnson v. Georgia

14



t

Highway Express, 488 F.2d 714, 717-19 (5th Cir. 1974) (pre­
scribing method of calculating attorneys’ fees, which it found 
consistent with guidelines recommended by the American 
Bar Association, that includes consideration of whether the 
fee is fixed or contingent), and Stanford Daily v. Zurcher, 64 
F.R.D. 680 (N.D. Cal. 1974), aff'd, 550 F.2d 464 (9th Cir. 
1977) (awarding upward adjustment due in part to the con­
tingent nature of the undertaking and the risk of receiving no 
payment at all), as examples of cases that correctly applied the 
appropriate criteria.

In enacting fee statutes, Congress recognized the obvi­
ous fact that many cases that should be brought to vindicate 
important national policies could not carry their weight in the 
marketplace if the risk factor were not taken into account. 
Congress understood that a lodestar fee reflects the billing prac­
tices of lawyers who bill and get paid on a current basis regardless of 
outcome. Consequently, this amount does not provide ade­
quate compensation for attorneys who not only risk receiving 
no payment at all but also face a long delay in payment even 
if they are successful in obtaining a fee award. The impact of 
delay is well illustrated by the present case, which involves 
fees for work performed as long ago as 1979 and still not 
collected. Thus, a fee is not “reasonable” within the meaning 
of Congress if it does not include a premium for the uncer­
tainty as to when or whether a fee will be recovered. As the 
Court of Appeals for the Sixth Circuit has explained, “the 
contingency factor is not a ‘bonus’ but is part of the reason­
able compensation to which a prevailing party’s attorney is 
entitled . . . .” Northcross v. Board of Education, 611 F.2d 624, 
638 (6th Cir. 1979), cert, denied, 447 U.S. 991 (1980). The cost 
of waiting for money that may never materialize must be ac­
counted for in the marketplace. Since Congress clearly in­
tended to provide for fee awards sufficient to attract 
competent attorneys who would otherwise spend their time 
in more lucrative litigation, the practice of awarding adjust­
ments for the risk of not prevailing is essential to implement 
the purpose of the fee statutes.

15



16

Congress has been particularly concerned with inducing 
litigation to insure proper administrative implementation of 
environmental statutes. See Note, supra, 96 Harv. L. Rev. at 
685. Thus, the citizens’ suit provision of the Clean Air Act is 
premised on the proposition that private enforcement is es­
sential to the effectuation of the substantive scheme, and the 
award of attorneys’ fees is essential to effective private en­
forcement. See Berger, Court Awarded Attorneys’ Fees: What Is 
“Reasonable’! ,  126 U. Pa. L. Rev. 281, 306 (1977); Comment, 
supra, 125 U. Pa. L. Rev. at 1409, 1410-11. In light of this 
congressional directive, it is clear that the availability of a pre­
mium for the risk of not prevailing is a crucial part of the 
enforcement mechanism Congress intended to provide for 
environmental statutes.

These policy reasons underlying the application of the 
contingency factor to fee awards were forcefully articulated 
in the context of civil rights cases in Yates v. Mobile County 
Personnel Board, 719 F.2d 1530, 1534 (11th Cir. 1983):

Vindication of the policy of the law depends to a signif­
icant degree on the willingness of highly skilled attor­
neys, such as those now before the court, to accept 
employment in discrimination cases on a wholly contin­
gent basis. They will hardly be willing to do so if their 
potential compensation is limited to the hourly rate to 
which they would be entitled in noncontingent employ­
ment. Busy and successful attorneys simply could not af­
ford to accept contingent employment if those were the 
rules that were applied. The enforcement of our civil 
rights acts would then be entrusted largely to less capable 
and less successful lawyers who lack sufficient employ­
ment. Such an arrangement would ill serve policies of 
enormous national importance.

The use of the contingency factor, of course, has always 
been a matter of discretion for the trial judge. An increase for 
the risk of not prevailing has never been automatic, nor 
should it be applied to reward plaintiffs, or their attorneys,



for litigating cases without merit. Where the risk of not pre­
vailing is great for reasons unrelated to the merits, however, 
the trial court’s discretion to increase the fee award promotes 
the federal policy of encouraging citizens’ suits to strengthen 
enforcement of laws that are vital to our national welfare.

The Commonwealth does not really address these policy 
considerations but argues that the contingency factor should 
be abandoned because it may produce unreasonable results. 
This argument rests primarily on a reductio ad absurdum ex­
ample of the potential for excess in a system that necessarily 
does not admit of mathematical precision. The Common­
wealth quotes McKinnon v. City ojBerwyn, 750 F.2d 1383, 1392 
(7th Cir. 1984), in which the court asks us to “imagine a class 
of cases where only one in 50 plaintiffs prevails” and asserts 
that the risk multiplier in such cases would be 50. The Com­
monwealth argues that the possibility of such a result makes 
any increase in a fee award based on the risk of not prevailing 
improper. (Comm. Brief at 10-14). Neither the Common­
wealth nor any other commentator on the subject, however, 
has suggested that any court has ever indulged, or is likely to 
indulge, in such excess. A survey of attorneys’ fee cases con­
firms that courts have generally been conservative in the use 
of multipliers. See Wildrnan v. Lerner Stores Corp., I l l  F.2d 
605,613 (1st Cir. 1985) (surveying circuits after Blum). More­
over, commentators have noted that when an adjustment is 
made on the basis of the contingency award, it is often too 
small. See Note, supra, 96 Flarv. L. Rev. at 686 n.51.

The Commonwealth also relies on criticism of the use of 
the contingency factor in Leubsdorf, The Contingency Factor in 
Attorney Fee Awards, 90 Yale L.J. 473 (1981) (Comm. Brief at 
14). The Commonwealth, however, is quoting Leubsdorf out 
of context. While Leubsdorf acknowledges some of the prob­
lems inherent in the current system of “contingency 
bonuses,” he nevertheless recognizes “the correct perception 
that reasonable fees must be larger when the plaintiff’s law­
yer will be paid only if his client succeeds . . . .” 90 Yale L.J. 
at 474. Although Leubsdorf considers several possible ap­
proaches to correcting some of the potential inconsistencies



18

of the system, the solution he puts forward as the simplest 
and most logical is the uniform multiplication of the lodestar 
by two on the theory that doubling fees would encourage 
suits with at least an even chance of success. 90 Yale L.J. at 
474-75, 511-12. The application of a multiplier of two for the 
risk of not prevailing that Leubsdorf recommends is precisely 
what the district court did here, although it did so only in the 
three phases of this case where the risk was greatest.

The intention of Congress in the statutes awarding 
attorneys’ fees is to encourage litigation to enforce its reme­
dial legislation. The congressional purposes underlying the 
practice of increasing attorneys’ fee awards based on the risk 
of not prevailing make it essential that district courts continue 
to be permitted to apply such a multiplier in appropriate 
cases.

B. The Decisional Law Clearly Permitted the District 
Court To Increase the Basic Fee Award Based on the 
Risk of Not Prevailing.

Every federal circuit has agreed that the practice of in­
creasing fee awards based on an assessment of the risk of not 
prevailing was within the purpose and intent of Congress 
when it enacted attorneys’ fee statutes. As discussed above, 
the practice was well established in the Third Circuit and al­
most universally accepted by the other courts of appeals at 
the time the district court entered the award in this case. The 
Commonwealth has cited no case to the contrary but relies on 
an assumption that Blum v. Stenson somehow changed the law 
on the use of the contingency factor. On the contrary, how­
ever, Blum left the law intact by declining to consider the issue 
at all.

Moreover, a survey of federal appellate court opinions 
after Blum, including those on which the Commonwealth re­
lies, reveals the gross hyperbole in the Commonwealth’s as­
sertion that “reliance on the likelihood of success as a factor 
to be included in the multiplier for an award of attorney’s 
fees . . . is in conflict with opinions of other Circuit Courts.”



(Pet. App. 14). Indeed, the use of the contingency factor to 
enhance a fee award has been either explicitly approved or 
acknowledged as permissible in virtually every federal appel­
late court decision that has addressed the issue since Blum was 
announced.

The nine courts of appeals that have directly ruled on 
the use of contingency multipliers since Blum have agreed 
that such use is not only permissible but sometimes essential. 
See, e.g., Wildman v. Lerner Stores Corp., I l l  F.2d 605, 613 (1st 
Cir. 1985) (“adjustment of the lodestar figure, after examin­
ing the particular risks assumed by an attorney in a particular 
case, may be necessary in order to provide the ‘reasonable 
attorney fee’ envisioned by Congress”); Hall v. Borough of 
Roselle, 747 F.2d 838, 843 (3d Cir. 1984) (“Congress autho­
rized district courts to award upward adjustments to com­
pensate for the contingent nature of success, and thus for the 
risk of nonpayment in a particular case”); Vaughns v. Board of 
Education, 770 F.2d 1244, 1245 (4th Cir. 1985) (“while a con­
tingency fee [enhancement] is to be reserved for the case pro­
ducing exceptional success, . . .  the determination of when 
justifying exceptional circumstances exist is likewise a matter 
inevitably committed to the trial judge’s discretion”); Moore v. 
City of Des Moines, 766 F.2d 343, 346 (8th Cir. 1985) (“because 
of its singular viewpoint, the district court is best equipped to 
determine . . . whether the risk of the case not prevailing 
calls for an enhancement of the lodestar fee”); LaDuke v. 
Nelson, 762 F.2d 1318, 1333 (9th Cir. 1985) (district court 
properly applied multiplier to adjust fee upward based on 
contingent nature of the fee awards); Jones v. Central Soya Co., 
748 F.2d 586, 591 (11th Cir. 1984) (“it is well established in 
this circuit, . . . that a contingency fee arrangement may jus­
tify an increase in an award of attorney’s fees”); Murray v. 
Weinberger, 741 F.2d 1423, 1426 (D.C. Cir. 1984) (“the factors 
which may warrant an adjustment of the lodestar . . . in­
clude . . .  the risk that no fee will be paid”); Crumbaker v. 
Merit Systems Protection Board, No. 85-1982 (Fed. Cir. Jan. 8,
1986) (LEXIS, Genfed library, Courts file) (since rates used in 
computing lodestar figure did not account for the risk that no



20

fee would be obtained, lodestar should have been adjusted 
accordingly).

The Commonwealth relies heavily on the criticism of the 
use of the contingency factor in McKinnon v. City of Berwyn, 
750 F.2d 1383, 1392 (7th Cir. 1984). More recently, however, 
the same court has made it clear that its occasional refusal to 
permit upward contingency adjustments to grants of 
attorneys’ fees should not be misinterpreted as establishing a 
general prohibition on such adjustments but rather as re­
flecting a judicial awareness of the need to assure that such 
adjustments do not result in windfalls to plaintiffs: “We do 
not mean to imply that a multiplier for the contingent nature 
of success is inappropriate when lawyers bear the risk of non­
payment and the delay in payment.” Ohio-Sealy Mattress Man­
ufacturing Co. v. Sealy Inc., 776 F.2d 646, 661 (7th Cir. 1985). 
The court specifically noted that such an upward adjustment 
“provides an inducement for lawyers to accept meritorious 
cases that might otherwise go unheard.” Id. at 662.

The only other cases cited by the Commonwealth that 
restrict the use of the contingency factor after Blum are both 
from the District of Columbia Circuit. See Murray v. 
Weinberger, 741 F.2d 1423 (D.C. Cir. 1984); Laffey v. Northwest
Airlines, 746 F.2d 4 (D.C. Cir. 1984), cert, denied, ___  U.S.
---- 105 S. Ct. 3488 (1985). (Comm. Brief at 12-13). In Mur­
ray v. Weinberger, however, the court did not eliminate the 
contingency factor but reaffirmed its use. Noting that Blum 
had not decided the issue, the court reiterated its “minimum 
requirements that must be met in order to justify an increase 
in the lodestar figure due to the risk of nonpayment if the 
client does not prevail.” 741 F.2d at 1431. Under the District 
of Columbia criteria, an upward adjustment is proper when: 
(1) the lodestar itself does not comprehend an allowance for 
the contingent nature of fee payment; (2) there was no fee 
arrangement with the client to eliminate the risk of 
non-payment; and (3) the case is exceptional within the 
meaning of Blum. Id. All three factors are present in this case. 
Laffey, decided a month later, did not change this approach 
but denied enhancement of the fee award because the trial



21

court's factual findings indicated that the case was not excep­
tional. 746 F.2d at 29 n.151. Moreover, as Judge Skeily 
Wright correctly concluded in his dissenting opinion in Laf- 
fey, the prerequisite that the case be deemed “exceptional” in 
order to apply a contingency multiplier is unfounded and 
rests on an overreading of the Blum requirement for multi­
pliers based on quality. 746 F.2d at 34-39 Sc n.16.

The four courts of appeals that have not yet directly ad­
dressed the status of contingency multipliers after Blum have 
taken no position inconsistent with their previous holdings 
that such multipliers can, and sometimes must, be used. See, 
e.g., Malchman v. Davis, 761 F.2d 893, 905, 909 (2d Cir. 1985) 
(majority had approved district court’s adoption of an 
attorneys’ fee award that had been negotiated by the parties; 
dissent believed that “the amount of the fee should . . .  be left 
to the court for determination after its independent review 
and approval of a settlement” and that “included among the 
factors to be considered, of course, are the degree of risk 
incurred and whether it justifies a risk premium”); Sims v. 
Jefferson Downs Racing Association, No. 83-3606 (5th Cir. Dec. 
18, 1985) (LEXIS, Genfed library, Courts file) (reaffirming 
court’s influential holding in Johnson v. Georgia Highway Ex­
press, 488 F.2d 714, 717-19 (5th Cir. 1974), that lodestar cal­
culations can be adjusted by consideration of numerous 
factors, including whether the fee is fixed or contingent); 
Davis v. Combustion Engineering, 742 F.2d 916, 923 (6th Cir. 
1984) (disapproving contingency enhancer not because such 
adjustments are impermissible per se but rather because dis­
trict court had failed to articulate the basis for the award); 
Jordan v. Heckler, 744 F.2d 1397, 1401 (10th Cir. 1984) (not­
ing that “apparently the only element not treated in Blum was 
that of ‘risk’ of loss”).

Thus, the district court’s application of a multiplier 
based on the risk of not prevailing is fully supported by legal 
precedents in all of the courts of appeals, and the only mem­
bers of this Court to address the question, the two Justices



22

concurring in Blum, have also expressly approved the prac­
tice. The district court correctly applied the law in consider­
ing the risk of not prevailing as a factor in multiplying the 
basic award in the three phases of the litigation in which 
DVCCCA’s success seemed least likely, and the use of that 
factor should be affirmed by this Court.

C. The Increase of the Fee Award Based on the Risk of 
Not Prevailing Is Especially Compelling in This Case 
Because of the Extreme Recalcitrance of the Com­
monwealth, the Difficult Issues of Federalism, and the 
Protracted Nature of the Litigation.

The Commonwealth argues that even if a multiplier 
based on the risk of not prevailing is permissible in some cases 
it would not be justified in this case because the existence of 
the consent decree virtually assured DVCCCA’s success. The 
United States supports this argument and further argues that 
DVCCCA’s success was made even more likely by the federal 
government’s participation as a plaintiff in the litigation. 
(U.S. Brief at 34). These arguments are disingenuous at best.

That the existence of the consent decree did not guar­
antee success is evidenced by the years of litigation required 
to enforce it. If the Commonwealth did not enter into the 
consent decree in bad faith, it is difficult to find any other way 
to describe its conduct during the implementation phase. 
The Third Circuit Court of Appeals, to which the Common­
wealth repeatedly resorted in its attempts to delay compli­
ance, described the protracted litigation as follows:

Nine years ago plaintiffs sued the state; two years later 
the state entered into a consent decree and then pro­
ceeded to renege on its provisions. To this day, every 
branch of government of the Commonwealth of Penn­
sylvania — the executive, legislative, and judicial — has 
fought tooth and nail every effort of plaintiff to make 
Pennsylvania respect the provisions of a federal statute.



23

(Pet. App. 65a). Thus, instead of good-faith compliance with 
the provisions to which it had committed itself, the Common­
wealth mounted a multifaceted attack on the consent decree 
which required DVCCCA to do battle on many fronts, 
“through complicated detours and treacherous road blocks.” 
(Pet. App. 66a). The Commonwealth made it clear that it 
would stop at nothing, including legislative action in direct 
violation of the decree, to avoid fulfilling its commitments. 
Even a finding of contempt and the imposition of the sanc­
tion of withholding federal highway funds did not persuade 
the Commonwealth to comply. Rather, in apparent collusion 
with the United States government, the Commonwealth 
sought to circumvent the contempt sanctions by having the 
United States certify that major highway projects qualified as 
exemptions to the sanctions. If these exemptions had been 
upheld, they would have swallowed the rule and the sanctions 
would have been totally ineffectual. Thus, DVCCCA was lac­
ing extreme and unusual recalcitrance on the part of a for­
midable opponent that was not averse to using the legislature 
and the state courts — and the cooperation of the United 
States government as well — to support it in flouting a federal 
court order. That the risk of not prevailing was greatest in 
Phases IV, V, and VII is clearly demonstrated by the fact that 
the Commonwealth not only appealed to the Third Circuit 
but also filed petitions for certiorari to this Court in Phases IV 
and V and the fact that it had the support of the federal gov­
ernment in Phases IV and VII.

The strength and vehemence of DVCCCA’s adversaries 
were not the only facts jeopardizing the success of this liti­
gation. In addition, DVCCCA was faced with the sensitive 
and difficult issues of cooperative federalism and questions 
concerning the power of a federal court to intrude upon state 
sovereignty. The district court explicitly expressed its con­
cern for the avoidance of undue interference with state sov­
ereignty when it was faced with the action of the state 
legislature in contravention of the consent decree. (Pet. App. 
39a). In spite of the consent decree, it was far from clear at 
the outset that DVCCCA would succeed in persuading the



24

district court, and later the court of appeals, that a meaning­
ful sanction could be imposed that would protect DVCCCA’s 
rights under the consent decree without unduly invading the 
sovereignty of the Commonwealth.

The combination of this difficult issue with the recalci­
trance and bad faith of the Commonwealth, supported at cer­
tain stages by the United States government, compels the 
conclusion that DVCCCA’s risk of not prevailing was sub­
stantial. Indeed, this case presents precisely the factual and 
legal considerations compelling the use of contingency mul­
tipliers. To the incalculable benefit of six million citizens of 
Pennsylvania, DVCCCA has championed a completely mer­
itorious cause against enormous odds — odds reflecting the 
tremendous power of the Commonwealth to effectuate de­
fenses which it now argues w'ere doomed to failure.

In addition, the protracted nature of the litigation jus­
tifies the use of a contingency multiplier in this case. The ul­
timate success achieved by DVCCCA was not only in doubt at 
various times but was also a very long time in coming. The 
Commonwealth, in seeking every possible avenue of delay of 
the I/M Program, also managed to postpone DVCCCA’s en­
titlement to counsel fees for several years. Thus, some of the 
work for which fees are still being sought was performed as 
long ago as 1979. To compensate such work in 1986 by pay­
ing the same amount that would have been due if it had been 
collected immediately is, in effect, to discount the fee. Such a 
result is clearly unreasonable, inequitable, and contrary to the 
intent of Congress.

The Commonwealth’s outrageous intimation that, 
throughout the litigation, the DVCCCA’s likelihood of suc­
cess was great (Pet. App. 15-16) is nothing more than a trans­
parent attempt to disclaim its power and deny the impact of 
its protracted resistance on the value of the fees ultimately 
awarded. If the DVCCCA had pursued so meritorious a 
claim against an opponent less formidable and recalcitrant 
than the Commonwealth of Pennsylvania, its likelihood of 
success in a reasonable period of time would have been great.



25

In choosing to address the problem of toxic automobile emis­
sions through the courts, in accordance with the directive of 
Congress, the DVCCCA was forced to confront one of the 
few adversaries that might have been powerful enough to 
defeat its efforts and that, in any event, succeeded in creating 
long and costly delays. The Court should encourage this ap­
proach to the enforcement of legislation vital to the public 
welfare by approving the use of contingency multipliers to 
reflect the enormous risk of failure that the DVCCCA has 
overcome, especially in Phases IV, V, and VII.

III. THE USE OF A MULTIPLIER FOR QUALITY IN
PHASE V WAS FULLY JUSTIFIED UNDER THE
BLUM CRITERIA.
The district court described DVCCCA’s attorneys’ work 

as “superior” in Phase V of the litigation in which the court 
imposed a civil contempt sanction on the Commonwealth. 
(Pet. App. 39a). The work in this phase was not simply a mat­
ter of reporting the violation of the consent decree to the 
court and obtaining a clear sanction. Rather, as discussed 
above, it involved a delicate balancing between the need to 
enforce a federal judicial decree and the requirement of re­
specting state autonomy. The need to achieve that difficult 
balance stems from the Tenth Amendment, the federal na­
ture of our system of government, and the Clean Air Act 
itself, which, like many environmental statutes, mandates a 
system of shared federal and state responsibility and coop­
eration for the control of air pollution. See 42 U.S.C. § 7402.

In its fee decision, the district court recalled “its concern 
for the avoidance of undue interference with essential ele­
ments of state sovereignty” and cited its reported opinion re­
sulting from Phase V in which it had discussed the “serious 
limits . . .  on the powers of the federal government to require 
action on the part of state government” when faced with a 
state decision that “clearly interferes with the realization of a 
federal judicial decree.” 533 F. Supp. at 878. The court con­
cluded that in the resolution of this extremely “difficult issue”



26

the work of DVCCCA’s attorneys “helped not only this court 
but also the court of appeals.” Citing Ur sic v. Bethlehem Mines, 
719 F.2d 670, 674 (3d Cir. 1983), the district court stated that 
this superior quality of work culminated in an “outstanding 
result” that justified an increase in the fee award. (Pet. App. 
39a).

The district clearly was not double counting for high 
quality, as the Commonwealth asserts. On the contrary, the 
increase for quality in Phase V was fully consistent with the 
criteria set forth in Blum. In Blum, the Court noted that, while 
quality is “generally” reflected in the hourly rate, an upward 
adjustment may be justified where “the quality of service ren­
dered was superior to that one reasonably should expect in 
light of the hourly rates charged and . . . the success was 
‘exceptional.’ ” 465 U.S. at 899.

In the present case, it is clear that the superior quality of 
the work in Phase V was not reflected in the hourly rate or in 
the number of hours allowed. On the contrary, the highest 
hourly rate in Phase V was no higher than the highest hourly 
rate in the other eight phases of the litigation. The court 
stated that this rate was based only on “the court’s determi­
nation of the attorney’s reputation, status and type of 
activity” (Pet. App. 8a) — i.e., the nature and complexity of 
the tasks done — and not on the quality of the work. In prac­
tice, however, the only factor that determined the rate ap­
plied to a particular activity was the court’s assessment of the 
amount of legal skill it required without regard to the repu­
tation or status of the attorney. Thus, two experienced and 
highly respected attorneys were compensated at the rate of 
only $25.00 for their work in Phase V. Even the “extensive 
research and analysis” that resulted in “superior” work on a 
“difficult issue” (Pet. App. 28a, 39a) was compensated at only 
$100.00 an hour, an amount that was clearly below the pre­
vailing market rate for work requiring considerable legal 
skill. Moreover, the court reduced the number of hours re­
quested in Phase V by almost 300 hours. Thus, the lodestar 
figure for Phase V represents only a modest fee applied to



27

fewer than half the hours actually expended in that impor­
tant and difficult portion of the litigation. Based on its specific 
finding that the quality of the work in Phase V was superior, 
the district court applied the multiplier to the hourly rate that 
would have been applicable if the work had been merely com­
petent, as Blum directs.

The Commonwealth relies on the Court’s suggestion in 
Blum that it would be only the “rare case” that would qualify 
for such an upward fee adjustment based on quality. 465 U.S. 
at 899. Since the district court’s fee decision preceded Blum, 
the court did not make a specific factual finding that this case 
was “rare.” The district court did note, however, that this case 
was “unlike other cases where attorneys’ fees have been 
awarded.” (Pet. App. 9a). Moreover, the facts themselves 
compel the conclusion that the case is not only rare but per­
haps unique. The district court specifically noted the complex 
problems of federalism presented by the unprecedented sit­
uation in which a state voluntarily entered into a consent de­
cree assuring compliance with a federal law, violated that 
decree, passed legislation over the executive’s veto prohibit­
ing compliance with the decree, and then sought a stay of the 
implementation of the decree based on that legislation. The 
court of appeals, which had the benefit of the Blum decision, 
specifically held that the Commonwealth’s “devious formal 
actions to avoid the enforcement of a federal court order” 
made this case “most unusual, and therefore a rarity.” (Pet. 
App. 65a). The unusual factual and legal context of this lit­
igation clearly qualifies this case as one in which the rare fac­
tors justifying an upward adjustment of attorneys’ fees are 
present.

This Court has continued to emphasize that a district 
court is in the best position to evaluate the quality of repre­
sentation and has a superior understanding of the litigation. 
See Hensley v. Eckerhart, 461 U.S. at 437. In this case, however, 
the court of appeals, which affirmed the award, was also in a 
position to evaluate the quality of the work directly since 
Phase V was the subject of an appeal to it. The district court 
noted, in awarding the multiplier for quality for Phase V, that



28

“plaintiffs’ work in this phase helped not only this court but 
also the court of appeals in resolving this difficult issue.” (Pet. 
App. 39a). The court of appeals specifically acknowledged 
the excellence of DVCCCA’s work in this phase in affirming 
the fee award:

Because this case involved a head-on collision between 
two court systems, plaintiff was treading through a 
minefield. Nevertheless, plaintiff’s counsel performed 
exceptional services in vindicating the dignity of the fed­
eral court system, walking the tight, and sometimes im­
perceptible, line that divides the competencies of two 
governmental sovereignties, insuring full compliance 
with federal legislation designed for the safety and pro­
tection of the citizens, and vigorously battling a state gov­
ernmental system that sought to defy a lawful order of 
this court system by resorting to discredited concepts of 
nullification, first by its legislature and next by its su­
preme court.

(Pet. App. 66a-67a).
In short, the essential test is whether the quality of ser­

vice delivered was superior to that reasonably expected at the 
hourly rate. In Phase V, unlike the other phases where work 
was compensated at the top rate, the district court stated that 
the DVCCCA attorneys’ work was “superior” and awarded a 
multiplier based on that assessment. In light of the nature of 
the issues in this phase and the fact that the average lodestar 
compensation of DVCCCA’s attorneys in Phase V was less 
than $85.00 per hour, the use of a multiplier for superior 
work and an outstanding result is clearly allowable under the 
Supreme Court’s decision in Blum.



29

IV. THE MULTIPLIERS USED WERE REASONABLE 
UNDER THE EXTRAORDINARY CIRCUM­
STANCES OF THIS LITIGATION AND ADE­
QUATELY SUPPORTED BY FINDINGS OF FACT.

The Commonwealth attacks the multipliers applied by 
the district court on several grounds. First, the Common­
wealth argues that the award of a multiplier for quality on the 
facts of this case represents “double counting.” This argu­
ment has been disposed of above and need not be reiterated 
here. Suffice it to say that the application of the multiplier for 
quality to only one of the nine phases makes it clear that no 
such double counting occurred since the highest hourly rate 
in Phase V was identical to the highest hourly rate in the 
other phases and the number of hours was sharply reduced. 
The district court made a specific factual finding that the 
work in this phase was “superior” and the result 
“outstanding.” The multiplier was used because the basic 
hourly rate was not adjusted upward to account for the out­
standing quality of the work in this phase, nor did the num­
ber of hours allowed reflect this factor.

The Commonwealth also argues that the multiplier was 
improper under Blum because it was based on the novelty and 
complexity of the issues. An examination of the district 
court’s opinion, however, demonstrates that the novelty and 
complexity of the issues, while noted by the district court in 
passing, were subsumed under the factors of quality and the 
risk of not prevailing and were not independent factors on 
which the multipliers were based. (Pet. App. 39a).

Finally, the Commonwealth complains that the multipli­
ers were “enormous” and were based on “conclusory 
statements.” The size of the multipliers, however, was well 
within the discretion of the district court and fully justified in 
this case. Indeed, the total fee, even with the application of 
multipliers, is modest in comparison with the magnitude of 
the case, which not only involved the cost — in money and in



30

human suffering — of the I/M Program for an indefinite 
number of years but eventually required a contempt sanction 
that held up $400 million worth of federal highway funds.

Moreover, the size of the multipliers in selected phases of 
this case was commensurate with those awarded by other dis­
trict courts for successful litigation of entire cases in which 
parties have sought court orders requiring state governmen­
tal bodies to respect important environmental statutes. See, 
e.g., Municipal Authority v. Pennsylvania, 527 F. Supp. 982 
(M.D. Pa. 1981) (multiplier of 4.5 based on factors of quality 
and contingency applied to entire award for litigation involv­
ing enforcement of Water Pollution Control Act); Keith v. 
Volpe, 502 F. Supp. 403, 414 (C.D. Cal. 1980) (multiplier of 
3.5 based on contingency, quality, and inflation applied to 
entire award for litigation involving environmental protec­
tion and civil rights). Such multipliers also have been applied 
in antitrust and securities litigation. See, e.g., In re Gypsum 
Cases, 386 F. Supp. 959, 967 (N.D. Cal. 1974) (multiplier of 3 
based on contingency and quality applied to entire award to 
liaison counsel in multiparty antitrust litigation; court com­
mented that “if private enforcement of the antitrust laws is to 
be expected and encouraged, it is in this court’s view emi­
nently reasonable to multiply the hourly value . . .  by a 
weighted factor of three’’). See also Fried v. Utilities Leasing 
Carp., [1976-1977 Transfer Binder] Fed. Sec. L. Rep. (CCH) 
1195,965 (“the contingent nature of the case and the outstand­
ing quality of the work performed, including the result ob­
tained, justified a fee at the very minimum of four times the 
attorneys’ hourly rates”); Arenson v. Board of Trade, 372 F. 
Supp 1349, 1358 (N.D. 111. 1974) (“under the unique circum­
stances of this litigation and the significant result achieved it 
is clear to this court that an award of four times the petition­
ing attorneys normal hourly rate is proper and just”).

In the cases cited above, the multipliers were applied to 
the entire fee award, not just to selected portions of counsel’s 
work. Thus, the district court’s application of multipliers in 
this case demonstrates significant restraint. Although the 
court found as a fact that “the contingent nature of plaintiffs’



31

success has been apparent throughout this litigation" (Pet. 
App. 39a), the court awarded the multiplier of two only for 
Phases IV, V, and VII, “where likelihood of success was 
least,” and an additional multiplier of two for quality only lor 
Phase V.

The Commonwealth represents that the statements in 
support of the contingency factor were “conclusory,” and 
“unsupported by any analysis.” (Comm. Brief at 21-22). T his 
argument is disingenuous. The district court’s statements, 
wrenched out of context by the Commonwealth, may well 
appear inadequate. However, in the context of a forty page 
analysis of the work done in all phases of the litigation, the 
difficult and unresolved legal questions, and the 
Commonwealth’s extreme recalcitrance, the district court’s 
explanation is perfectly clear and fully supported by the en­
tire record in the case. It would be simply redundant to re­
state details that were incorporated into the court’s entire 
analysis.

Contrary to the Commonwealth’s argument, the district 
court did not rely on the general conclusions quoted above 
but described the factors that made the risk of not prevailing 
in Phases IV, V, and VII especially significant. The court spe­
cifically noted that in these phases of the litigation the “even­
tual implementation of the I/M Program seemed least likely.” 
(Pet. App. 40a). The court also emphasized that the litigation 
had been undertaken originally “against the U.S. Govern­
ment and the Commonwealth of Pennsylvania.” (Pet. App. 
39a). That the nature of the defendant and the resources 
available to it were important factors in the court’s assessment 
of the risk w as readily apparent. The court noted the “intense 
adversarial atmosphere” and the Commonwealth’s dominant 
policy of delaying compliance with the letter and spirit of the 
consent decree. (Pet. App. 9a).

The court also emphasized the constant battle that was 
necessary to defend DVCCCA’s and the public s rights that 
commenced “in Phase IV and [is] continuing up to the 
present.” (Pet. App. 39a). The court specifically noted the 
recent introduction of a bill “into the Pennsylvania legislature



which, if enacted, would attempt to preclude payment of any 
counsel fees awarded in this litigation” despite the existence 
of the Clean Air Act. (Pet. App. 9a). The court’s specific ref­
erence to the duration of the Commonwealth’s resistance to 
compliance with the law merely echoed the finding that Phase 
IV involved “matters that could have delayed the implemen­
tation of the I/M Program beyond an acceptable period.” 
(Pet. App. 25a). Phase V involved a legislative attempt to pre­
vent expenditure of any state funds for the program, creat­
ing a direct clash between the state legislature and the federal 
court, the outcome of which was extremely uncertain. (Pet. 
App. 39a). Phase VII involved attempts by the Common­
wealth, with support of the federal government, to carve out 
exceptions to the contempt sanction issued by the district 
court in Phase V. (Pet. App. 32a). The court thus clearly set 
out several specific factors that made success on the merits of 
this litigation highly contingent and that demonstrated the 
extreme uncertainty whether attorneys’ fees would ever be 
recovered from the Commonwealth.

Similarly, the additional multiplier of two for quality was 
applied only to Phase V, for which the district court specif­
ically found that plaintiffs’ work was “superior” and “culmi­
nated in an outstanding result.” (Pet. App. 39a). The court 
f urther stated that plaintiffs’ work was helpful not only to the 
district court but also the court of appeals in resolving an 
unusually difficult and sensitive issue (Pet. App. 39a), a con­
clusion that was echoed by the court of appeals. (Pet. App. 
65a-67a).

The court also detailed the work DVCCCA’s attorneys 
did in Phase V, from actions in the district court to motions 
before this Court. (Pet. App. 17a-38a). That this was a most 
crucial phase of the litigation, and one in which the success 
obtained was exceptional, is self-evident from the district 
court’s finding that before the contempt sanction was im­
posed, the Commonwealth had simply “ceased all efforts to­
ward implementing the I/M Program.” (Pet. App. 5a). Had 
not the court been able to develop an innovative sanction, one



33

which had teeth yet which would respect the essential ele­
ments of state sovereignty — a process the work of 
DVCCCA’s attorneys aided considerably — there might well 
never have been an I/M Program. The court thus clearly set 
forth a sufficient factual basis for the appellate court to see 
that the awarding of a multiplier based on quality was cer­
tainly well within the lower court’s discretion in this phase of 
the litigation.

In Blum, this Court noted that the “District Court, having 
tried the case, was in the best position to conclude that the 
quality of representation was high.” 465 U.S. at 899. This 
Court has often stated that the district court has a “superior 
understanding of the litigation.” Hensley, 461 U.S. at 437. 
Thus, the district court “necessarily has discretion” to evalu­
ate the considerations that may lead to an upward adjustment 
of the fee, including the important factor of “the results 
obtained.” Id. at 433. Particularly in this case, in which, as the 
court of appeals noted, the district court’s findings were 
based on its nine years of intimate involvement with the lit­
igation (Pet. App. 54a), its findings should be accorded sub­
stantial deference. The duration of the court’s experience 
with the case attests to its ability to assess both the quality of 
counsel’s work and the risk of not prevailing in each phase of 
the case.

In Blum, this Court rejected the upward adjustment 
based on quality because there was no evidence in the record 
to support it. In the present case, in contrast, there was ample 
evidence to support the district court’s finding that the work 
in Phase V was superior. Moreover, both the district court 
and the court of appeals were in a position to evaluate the 
quality of DVCCCA’s work, and both concluded that an up­
ward adjustment was fully justified. Since this superior work 
was not reflected in the basic hourly rate or the number of 
hours allowed, the upward adjustment for quality in Phase V 
was clearly correct and should be affirmed by this Court.



V. UNDER THE CIRCUMSTANCES OF THIS CASE, 
THE DISTRICT COURT PROPERLY AWARDED 
ATTORNEYS’ FEES FOR COMMENTING ON REGU­
LATIONS AND SUBMITTING COMMENTS AT A 
PUBLIC HEARING.

Finally, the Commonwealth attacks the district court’s 
award of attorneys’ fees to DVCCCA’s attorneys for work 
done in connection with the submission of comments to draft 
regulations (Phase II) and participation at a public hearing 
on the 1982 state implementation plan (part of Phase IX). In 
Hensley, the Court emphasized that the award of attorneys’ 
fees necessarily depends on the facts of each case and that the 
exercise of discretion by the district court must be respected. 
461 U.S. at 436-37. In this case, the district court spechcally 
noted that the case “required constant monitoring of the con­
sent decree both by the court and plaintiffs in order to ensure 
compliance by defendants with both the letter and spirit of 
the decree as well as to protect the plaintiffs’ and the public’s 
rights under the decree.” (Pet. App. 9a). Under these cir­
cumstances, the award of fees for work in related adminis­
trative proceedings was entirely proper.

Several courts of appeals have expressly held that post­
judgment monitoring activities may be compensable. See, e.g., 
Garrity v. Sununu, 752 F.2d. 727, 738 (1st Cir. 1984); Miller v. 
Carson, 628 F.2d 346, 348 (5th Cir. 1980); Northcross v. Board 
of Education, 611 F.2d 624, 637 (6th Cir. 1979), cert, denied, 
447 U.S. 911 (1980); Bond v. Stanton, 630 F.2d 1231, 1233 
(7th Cir. 1980). These courts have correctly recognized that 
reasonable monitoring is often necessary to secure compli­
ance with a court’s order and that such service is as crucial to 
obtaining adequate relief as the activities involved in obtain­
ing the order. In Garrity, supra, the court noted that extreme 
tension and animosity are not preconditions for an award for 
post-judgment monitoring and upheld the award even in the 
context of a “constructive atmosphere” between the parties. 
752 F.2d at 738. The present case involves the extra element 
of tension and animosity that makes the award even more



35

justified. The Commonwealth’s relentless attempts to circum­
vent the requirements of the consent decree by every means 
available to it, including promulgation of inadequate regu­
lations and seeking the EPA’s collaboration in delaying im­
plementation of the program, necessitated monitoring of and 
participation in these administrative proceedings.

This Court has recently considered the question of a dis­
trict court’s discretion to award attorneys’ fees for related ad­
ministrative proceedings in Webb v. Board of Education,-----
U.S____ , 105 S. Ct. 1923 (1985). Although Webb considered
administrative proceedings that occurred before the filing of 
a complaint rather than activities that followed a consent de­
cree, similar considerations apply to the question of whether 
such work should be compensated. Presented with a clear op­
portunity in Webb to rule that attorneys’ fees could not be 
properly awarded for work in related administrative pro­
ceedings, the Court declined to do so. Instead, the Court “re- 
emphasizefd] that the District Court has discretion in
determining the amount of the fee award.” -----U.S. a t------ ,
105 S. Ct. at 1929, quoting Hensley, 461 U.S. at 437. In Webb, 
the Court affirmed the district court’s decision not to com­
pensate the administrative work because the record did not 
support such compensation:

The petitioner made no suggestion below that any dis­
crete portion of the work product from the administra­
tive proceedings was work that was both useful and of 
the type ordinarily necessary to advance the civil rights 
litigation to the stage it reached before settlement.

___  U.S. a t___ , 105 S. Ct. at 1929. Thus, the Court implied
that evidence of the usefulness and necessity of the work 
product in the administrative proceedings to advance the lit­
igation would have produced a different result.

Applying the standard articulated in Webb to the fees 
awarded in this case for work in related proceedings, it is 
clear that the district court was well within its discretion in 
awarding the fees for work in Phases II and IX. This work 
was necessary to monitor the Commonwealth’s performance



36

under the consent decree and to insure compliance. Partic­
ularly in light of the Commonwealth’s repeated attempts to 
circumvent the requirements of the consent decree, which 
the district court recounted in detail in its opinion, this mon­
itoring and participation in regulatory proceedings was es­
sential to protect DVCCCA’s rights under the consent decree. 
The district court specifically so found.

With respect to the submission of comments on the reg­
ulations published in the Pennsylvania Bulletin on Septem­
ber 20, 1979, the district court found:

The publishing of the regulations was required under 
the consent decree. While it is true that the opportunity 
to submit comments to the proposed regulations was 
available to any person, it does not follow, as defendants 
contend, that plaintiffs should not be compensated for 
the time used in preparing comments. Plaintiffs had an 
interest in the regulations since they were a party to the 
consent decree. Their interest was based on a desire to 
assure compliance with the consent decree and to protect 
their rights thereunder. The usefulness of plaintiffs' 
comments was manifested in the revisions that were 
made to the original proposed regulations.

(Pet. App. 17a). Thus, with respect to Phase II, the district 
court made specific factual findings that this activity was both 
useful and necessary to advance the litigation and protect the 
rights at issue. Moreover, in effecting revisions to the pro­
posed regulations, DVCCCA helped to prevent further liti­
gation that would have resulted from the promulgation of 
inadequate regulations.

In Phase IX, DVCCCA participated in Environmental 
Protection Agency (“EPA”) hearings during which the Com­
monwealth requested that EPA modify the state implemen­
tation plan so that the I/M Program would cover a smaller 
geographic area, and proposals of cutoffs of EPA funding 
were discussed. The Court denied attorneys’ fees for partic­
ipation in hearings concerning the possible cutoff of federal 
funds because such hearings were not sufficiently related to



37

DVCCCA’s rights under the decree. The district court 
awarded fees only for activities resulting directly from the 
Commonwealth’s request for a modification of the I/M Pro­
gram based on its finding that an EPA modification of the 
program would have affected DVCCCA’s right under the 
consent decree. (Pet. App. 36a). Therefore, the activities 
were both useful and necessary in the context of the litiga­
tion.

The Commonwealth argues that these activities should 
not be compensated because they are equally available to the 
general public. The Commonwealth also argues that such 
comments to regulations tend to be technical rather than le­
gal in nature. These arguments miss the point. While it is true 
that opportunities to comment are available to the general 
public, DVCCCA’s special interest in these activities and the 
real possibility that the actions of the Commonwealth with 
respect to them would directly affect their rights under the 
consent decree make the activities of their attorneys a vital 
part of the litigation and inseparable from the purpose it 
served. Moreover, while some comments may have been tech­
nical in nature, those submitted by DVCCCA were prepared 
in the context of the consent decree with an eye to enforcing 
the legal rights it provided. Thus, participation in these ad­
ministrative activities was essential to the vindication of 
DVCCCA’s rights under the consent decree, and the com­
pensation for these activities was entirely proper and well 
within the range of the district court’s discretion.

VI. BECAUSE THE DISTRICT COURT STRUCTURED 
ITS FEE AWARD BEFORE B L U M ,  THIS COURT 
SHOULD TAKE INTO ACCOUNT ALL OF THE AD­
JUSTMENTS TO THE REQUESTED FEE AND NOT 
MERELY THE USE OF MULTIPLIERS.
Both Pennsylvania and the United States would have this 

Court believe that the district court committed a simple error 
in applying multipliers to the lodestar it established and that 
the lodestar itself represented the reasonable attorneys’ fee



38

that Congress contemplated in 42 U.S.C. § 7604(d). Nothing 
could be further from the truth.

However counsel may conceptualize the process of set­
ting an attorneys’ fee, common sense indicates that a judge 
must have some sense of the value of the legal work that has 
been done before him and must recognize that the final fee 
will represent the product of three interrelated variables: 
hours, hourly rates, and adjustments.

Thus, for example, the contingency factor — the possi­
bility that Pennsylvania might simply face down a federal 
court through massive resistance as it attempted to do here — 
could have been reflected either in higher hourly rates, be­
cause lawyers demand higher rates when they are likely to be 
paid neither promptly nor at all, or in market rates for 
noncontingent work and a multiplier to reflect the same con­
siderations. Similarly, the determination that counsel’s work 
in a case is superior bears some relation to both hourly rates 
and how much time counsel devoted to the task. The work in 
Phase V was superior precisely because the district court not 
only applied a low hourly rate but also halved the hours — 
and then marveled at how much counsel had accomplished in 
so little time and how well it was done. The same result would 
have been achieved if the district court had both increased 
the lodestar in this difficult phase and recognized that merely 
human lawyers had indeed spent a substantial amount of 
time to accomplish their important task.

Had the district court had the benefit of the Blum opin­
ion, it might well have applied the contingency factor in set­
ting rates or allowing additional compensated hours instead 
of as the basis for a multiplier. It might likewise have been 
leary of multipliers for superior work and have figured the 
fee on the basis of higher rates and all the hours worked 
rather than on what it viewed as a smaller number of low rate, 
extraordinarily productive hours. But the record makes it 
clear that the fee was a reasonable one taking all three vari­
ables into account, and this Court should affirm the decision



39

below on that basis even if it would not accept DVCCCA’s 
arguments, which we believe are absolutely correct, in the 
earlier sections of this brief.

In Garrity v. Sununu, 752 F.2d 727, 739-40 (1st Cir. 
1984), the court faced a similar challenge to an upward ad­

justment for quality that had been determined before Blum. 
Recognizing that the lower court lacked the guidance of 
Blum, the court sustained the upward adjustment, although it 
acknowledged “that under Blum certain of the qualities 
sought to be recognized by the bonuses might better have 
been recognized by means of more adequate hourly rates.” 
The same result is appropriate here. See also Clayton v. Thur­
man, 775 F.2d 1096, 1099 (10th Cir. 1985) (“although Blum v. 
Stenson . . . was not decided until after the trial court made 
its award [which included an enhancement for quality], we do 
not find that the trial court did violence to the teaching of 
Blum").

Nevertheless, if the Court were to conclude, contrary to 
our arguments, that Blum makes it impossible to affirm the 
decision below because the district court’s pre-Blum findings 
insufficiently anticipate the Blum analysis, then the proper 
course would be to vacate the grant of certiorari as improv­
ident. The interpretation of Blum should properly be re­
solved on a post-Blum record in which the hourly rates and 
number of hours were not calculated in anticipation of the 
application of the multipliers.

Finally, if the Court is prepared neither to affirm nor to 
vacate the writ of certiorari as improvidently granted, the 
only appropriate relief would be to vacate the decision of the 
court of appeals and to remand with orders that that court 
further remand the matter to the district court with orders 
that it redetermine the attorneys’ fee ab initio in light of Blum. 
Any other course would leave DVCCCA with only the fee 
which the district court reduced in expectation of the appli­
cation of multipliers — plainly not the reasonable attorneys’ 
fee contemplated by Congress.



40

CONCLUSION
For the foregoing reasons, DVCCCA respectfully re­

quests that this Court affirm the district court’s award of 
attorneys’ fees in all respects. Specifically, DVCCCA respect­
fully requests that the Court rule that the risk of not prevail­
ing may be used as a factor in increasing the basic fee award, 
that a district court has discretion to increase an award based 
on the superior quality of the work where it is not reflected 
in hourly rates, and that fees for necessary related adminis­
trative proceedings may be awarded under proper circum­
stances.

Respectfully submitted,

James D. Crawford 
Joyce S. Meyers 
William J. Maffucci 

Attorneys for Delaware Valley 
Citizens Council for Clean Air, et al.

Schnader, Harrison, Segal & Lewis
Suite 3600
1600 Market Street
Philadelphia, Pennsylvania 19103
215-751-2162

Of Counsel.
January 11, 1986.