ELR Citation: ELR 20801
No(s). 85-5 (U.S. Jul 2, 1986)

The Court holds that §304(d) of the Clean Air Act authorizes attorney fees for time spent by counsel in administrative proceedings, but the lodestar value should not ordinarily be adjusted to reflect superior performance. Plaintiffs in this case were involved in protracted litigation over Pennsylvania's implementation of an automobile inspection and maintenance (I/M) program. Although the litigation initially ended in a consent decree in 1978 in which the state agreed to establish an I/M program, subsequent disagreements among the parties, compounded by the refusal of the Pennsylvania Legislature to authorize a program, resulted in additional litigation and proceedings before state and federal agencies. The Court first rules that the Clean Air Act authorizes attorney fees awards for time spent by counsel in regulatory proceedings to enforce a consent decree. Although the time spent by plaintiffs' attorneys' in submitting comments to the Pennsylvania Department of Transportation on draft regulations and in participating in hearings before the Environmental Protection Agency did not occur in a judicial context, this work was as necessary to the attainment of adequate relief as was all of counsels' earlier work which led to the consent decree. The consent decree itself did grant relief to plaintiffs; however, enforcement of the decree was necessary to protect that relief. Section 304(d) is analogous to §1988 of the Civil Rights Act, which courts have held authorizes fees for post-judgment monitoring of consent decrees. Although §1988 is arguably broader in its scope than §304 by its use of the phrase "any action or proceeding" rather than simply "any action" as in §304, the legislative history behind the latter indicates that Congress used "action" and "proceeding" interchangeably. Moreover, the purposes of both sections are to encourage private enforcement of important federal policies. In a note, the Court observes that it is not deciding whether fees may be obtained in a federal administrative proceeding if there is no related court action.

The Court then rules that the lodestar value, determined by multiplying the reasonable number of hours spent on a case by a reasonable hourly rate of compensation, should not ordinarily be adjusted upward to reflect superior performance by counsel. Under previous Supreme Court decisions, the lodestar value is presumed to be the reasonable fee, and adjustments should only be made in rare and exceptional circumstances and when the claim is supported by appropriate evidence. The quality of representation is normally reflected in the hourly rate chosen or in the determination of the number of reasonable hours expended, and an additional fee increase could result in double counting. The Court holds that the lodestar figure calculated by the district court for the phase of this case in which plaintiffs' counsel successfully opposed the state's motion to stay the consent decree provided a reasonable fee award, and a multiplier of two for superior performance was unwarranted. There is no evidence to indicate that the work of plaintiffs' counsel was outstanding. The district court itself had reduced the number of hours to be compensated, and almost one-third of the hours reasonably spent were at rates for less difficult work. Finally, the Court declines to rule at this time on the question of whether an upward adjustment can be made in the lodestar figure based on the risk of loss, reserving it for decision next Term after reargument. Two Justices would set the entire case for reargument next Term and three dissent from the Court's ruling on adjusting the lodestar for quality, concluding that the Court's requirements will be virtually impossible for a plaintiff to meet.

[The lower court opinions are published at 15 ELR 20192 and 20475. Opinions from the underlying actions appear at 11 ELR 20952, 20954, 20956; 12 ELR 20191, 20289, 20295, 20533, 20631, 20925; 13 ELR 20426; 14 ELR 20146; and 15 ELR 20202.]

Counsel for Petitioner
John P. Krill
Office of General Counsel
Commonwealth of Pennsylvania
333 Market St., 17th Fl., Harrisburg PA 17120

Counsel for Respondent
James Crawford
Schnader, Harrison, Segal & Lewis
1600 Market St., Suite 3600, Philadelphia PA 19103
(215) 751-2162