Pennsylvania v. Delaware Valley Citizens' Council for Clean Air

PETITIONER: Pennsylvania
RESPONDENT: Delaware Valley Citizens' Council for Clean Air
LOCATION: Pennsylvania State Capitol

DOCKET NO.: 85-5
LOWER COURT: United States Court of Appeals for the Third Circuit

CITATION: 483 US 711 (1987)
ARGUED: Mar 03, 1986
REARGUED: Oct 15, 1986
DECIDED: Jun 26, 1987
GRANTED: Oct 07, 1985

Donald B. Ayer - on behalf of the United States, as amicus curiae, in support of Petitioners
James Douglas Crawford - on behalf of Respondents
Jay C. Waldman - on behalf of Petitioners

Facts of the case

In April of 1973, pursuant to the Clean Air Act (CAA), the Pennsylvania Department of Environmental Resources (Penn DER) submitted a plan for meeting federal air quality standards. This plan included a provision requiring the implementation of a program for the inspection and maintenance of automobile emissions systems (I/M program) by May 1, 1975. By mid-1976, Pennsylvania had not implemented any I/M program.

In response, the Delaware Valley Citizens’ Council for Clean Air (DVCCCA) brought suit against Pennsylvania and the Environmental Protection Agency. The EPA filed a separate action against Pennsylvania and DVCCCA dropped its charges against the EPA. On August 29, 1978, Pennsylvania, Penn DER and the Pennsylvania Department of Transportation (Penn DOT) agreed to a final consent decree, terminating the DVCCCA and EPA actions.

On January 2, 1982 and after more than five years of intermittent litigation -- during which Pennsylvania consistently resisted or ignored the consent decree -- the district court declared Pennsylvania, the Secretaries of the Penn DOT and Penn DER to be in civil contempt. On May 3, 1983, the Pennsylvania legislature authorized the Secretary of Penn DOT to implement an I/M program following several years of consistently denying Pennsylvania the requisite funding.

The CAA provided that in issuing a final order in any action brought under the CAA, the court may award the costs of litigation to any party whenever the court determines such an award is appropriate. The DVCCCA and the EPA consequently sought attorneys’ fees and costs for all activity performed after the court issued the consent decree on August 29, 1978. The district court awarded attorneys’ fees that included time spent by plaintiffs’ attorneys monitoring Pennsylvania’s performance under the consent decree, an award for “superior quality” while opposing the state’s motion to stay the consent decree, and work performed for hearings held before the EPA. It also awarded a multiplier for the arguably small likelihood of plaintiffs’ success in three phases of the litigation. The United States Court of Appeals for the Third Circuit affirmed the attorneys’ fees awarded by the district court.


(1) Did the Clean Air Act authorize attorneys' fees for DVCCCA and EPA’s non-litigation activities?

(2) Did the Third Circuit properly affirm awarded multipliers for DVCCCA and EPA’s superior work opposing Pennsylvania’s motion to stay the consent decree?

Media for Pennsylvania v. Delaware Valley Citizens' Council for Clean Air

Audio Transcription for Oral Argument - March 03, 1986 in Pennsylvania v. Delaware Valley Citizens' Council for Clean Air

Warren E. Burger:

Mr. Waldman, I think you may proceed when you are ready.

Jay C. Waldman:

Thank you, Mr. Chief Justice, and may it please the Court:

This litigation involves an award by the District Court of substantial legal fee enhancements by use of so-called multipliers for three phases of legal work during controversies over implementation of consent decree, calling for the institution of an automobile emission inspection program in Pennsylvania under the Federal Clean Air Act.

The effect was to increase these legal fees by up to 200 percent for inexperienced attorneys already receiving a high hourly rate.

The result were hourly rates for attorneys of up to $400, or compensation for the equivalent of 1,700 hours of legal work that was in fact never done.

The explanation consisted of three conclusory paragraphs in a 45 page opinion, that the quality of representation was high in one phase, that the issues were novel and difficult in two phases, and that in all three phases, the Respondent was found to have had a low likelihood of success.

This was despite the heavy burden of proof that Petitioner bore in all phases under the controlling law of the circuit, and this was after the Court disallowed 806 hours requested, including time for attendance at press conferences and interviews as unnecessary, duplicative, inadequately documented, and of dubious significance.

The Court also awarded legal fees for submitting comments on draft administrative regulations and attending an administrative hearing.

We contend that the latter violates Section 304(d) of the Clean Air Act which clearly specifies there shall be compensation for work done only in litigation, and we find that the former violates reason, it is irrational; it violates the intent of Congress in the fee shifting statute.

We find... excuse me... we contend that it is violative of the underpinnings of this honorable Court's holdings in Blum v. Stenson, and indeed, we ask the Court to decide today the issue it left open in Footnote 17 of Blum as to whether these use of so-called multipliers in cases based on a finding that the prevailing party was in fact unlikely to prevail and ran a high risk of not succeeding are ever appropriate.

We contend they are irrational because they penalize defendants with the best defenses.

They reward plaintiffs with the most marginal claims, and therefore have to encourage the flooding of the court with those claims.

They are particularly inappropriate where the losing party bore the burden of proof.

They result in irrational and anomalous kinds of findings.

We force a court to decide that it was likely, in retrospect, that it would have decided a case differently than it in fact did, and one must ask oneself, if one wishes to be rational, how unlikely must a court find it was to have reached the result it did before one must question whether that result was correct.

It forces the attorney for the losing party, in order to protect his client from the risk of substantial additional fees, to argue after the litigation that in fact he never had a very good defense, that there was no serious likelihood that the prevailing party would fail.

There are absolutely no standards; these multipliers are awarded randomly, and often the court will pick a number out of the air that it deems appropriate, that will multiply the fee.

William H. Rehnquist:

Mr. Waldman, the District Court, as I recall, acted before our opinion in Blum v. Stenson came down, didn't it?

Jay C. Waldman:

Yes, it did, Justice Burger.

William H. Rehnquist:

And the Court of Appeals wrote its opinion after that opinion?

Jay C. Waldman:

They did indeed.

In a two-to-one opinion, they affirmed.

That is absolutely correct.

Sandra Day O'Connor:

Mr. Waldman, the District Court allowed, as I understand it, two sorts of multipliers or increases.

One was a so-called quality of representation multiplier or increase, and although the Court acted before our opinion in Blum v. Stenson, it did appear to set forth as its reasons some of the reasons spelled out in Blum v. Stenson that might justify such an increase, did it not?

Jay C. Waldman:

I would have to say no, it did not, Justice O'Connor.

In fact, the entire explanation that the Court gives under the heading of multiplier, which begins on page 38a of the Appendix, consists of three conclusory paragraphs in which it simply states as a conclusion that they find that in fact there was a high quality of representation.

But I think of greater importance is the Court's holding in Blum that absent rare circumstances, quality of representation and result achieved, and in virtually all cases novelty, complexity and difficulty of the issues also cited by the District Court, are subsumed in the normal calculation of reasonable hours expended, multiplied--

Sandra Day O'Connor:

Well, what should the Court have said in terms of any incantations before its quality of representation multiplier should be allowed?

Jay C. Waldman:

--Well, I would say this.