Pennsylvania Environmental Defense Foundation (p.e.d.f.) v. Canon-Mcmillan School District

Ordinances, houses, they Act we consider them to and thus do not violate either Jersey unexceptional, they United States or the New consti- be and find were tutions. court, upheld properly by the district includ- (1) permit municipalities that: sections Finally, we note that N.J. Ann. Stat. locally place license R & B houses in the of 40:52-13(d), § requires each owner of Affairs, Department Community of see a R B& house to establish a “sufficient (2) 40:52-10; § require N.J. Ann. Stat. guarantee responsibili- of financial and other

licensing provide ty fee and for the submission appropriate to assure relocation of the supporting rooming boarding of information and residents of the documentation house to suitable facilities in the event that licensing so the can conduct an subsequently license is revoked or its renew- investigation applicant, see N.J. Stat. denied,” problematic al also seems under (3) 40:52-12; § provide inspec- Ann. for the possibly FHAA and the United States and premises of R B tion & house for health and Jersey New constitutions. As with the bond- violations, safety prohibit ownership Rof ing provision Neptune Ordinance by persons B& houses convicted of crimes of inadequately this was explained briefed and turpitude, § moral see N.J. Ann. Stat. 40:52- us; to both the district court and to (4) 13; licenses, provide for the term of the simply highlight scrutiny it for on remand. (5) 40:52-15; § provide see N.J. Stat. Ann. foregoing For the reasons we will affirm revoked, when licenses be see N.J. Stat. part, part, reverse in and remand for further (6) 40:52-16, provide § appeals Ann. for proceedings opinion. consistent with this Department Community of Affairs and Parties to bear their own costs. Appellate Jersey Division of the New courts license, in the event of a revocation aof see 40:52-17; §

N.J. Stat. Ann. establish requirements municipal licensing au-

thorities, see N.J. Stat. Ann. 40:52-18. concluded,

As the district court none of provisions unduly these burdensome PENNSYLVANIA ENVIRONMENTAL plaintiffs, they do not violate FHAA. DEFENSE FOUNDATION (P.E.D.F.), Appellant impact Their essential is to shift the over- sight and enforcement of R & B houses from the state to local provisions level. Similar CANON-McMILLAN SCHOOL licensing, inspections, revocation, et cet- DISTRICT. era, existed under the state-administered re- No. 97-3136. gime, provisions and we will not invalidate a statute whose effect Appeals, authorize United States Court of local communities to Third Circuit. assume an enforcement role at their election-—even if there was dis- Argued Jan. 1998. criminatory legislation— animus behind the Reargued May 1998. without some provisions evidence that Aug. Decided unduly addition, were burdensome. provisions rationally gov- are related legitimate purpose

ernment’s protecting mentally ill aged who in R B live & grounds munity thereby effect which would have negatively affecting been for invali- their self-es- facially dation even if it were invalid or the teem. See id. product discriminatory intent. See id. at 697. Finally, the court in House determined Horizon discriminatory effects found the court spacing requirement provide failed to spacing requirement were that the limited the persons with with a disabilities reasonable ac- people number of with disabilities who could live commodation because it was a blanket and cate- Township, within the limited their choices on gorical process obtaining rule under which the live, where community limited their access essential lengthy, costly, variances was and burdensome. resources, and thwarted efforts to See id. at 700. people handicaps equally treat in the com- Childe, PA, E. (Argued), Palmyra,

John Jr. Appellant, Rose, (Argued), Steven M. PetriMs Schmidt, DiSalle, PA, Hasley Pittsburgh, & Appellee.- SLOVITER, Before: LEWIS* and GARTH, Judges. Circuit SLOVITER, Before: RENDELL and GARTH, Judges. Circuit *Judge argument Lewis heard reargued in this matter on was reconstituted and this matter was but, illness, panel May due to and also August District on School THE COURT OF OPINION compliance. into it to come directed SLOVITER, Judge. Circuit made what District After in a be considered that should The factors adjust- process “minor to as several referred a counsel fee award determination compliance ments,” apparently in full in that connec- be used and January 1995. permit limits all of its with tion, occupied all levels that issues 16, 1995, District February the School On years, have judiciary numerous for federal Stay for and a Motion filed both a Motion of deci- through a series finally resolved been Order, litiga- arguing that the a Protective Supreme Court. States sions of the United discovery stayed and halted should be tion whether, after all question before us The compliance with complete because resolution, that went into the effort that those court denied permit. The district its bypass this circuit the courts of will allow 1995, 22, PEDF February and on motions mere- explicit directions Court’s In March of preparation. with continued its an interpose ob- ly counsel because failed 1995, PEDF’s mo- granted the district court jection procedure. Dis- reply a brief to the School tion to file PEDF’s opposition trict’s memorandum I. partial summary judgment. motion 23, on March reply PEDF filed that brief Pennsylvania appeal is an Before us 1995. Foundation Environmental Defense Thereafter, parties reached a settle- (“PEDF”), action non-profit environmental court a ment and submitted to the district group, from an order of 23, Decree, signed which it on June Consent following the en- attorneys’ fees awarding it reserved the issue of 1995. The settlement against in its suit try of a consent decree fees, shortly and award of under the School District Canon-MeMillan attor- PEDF a motion for thereafter filed Act, § 1365. 33 U.S.C. Clean Water a statement of fees neys’ fees and submitted PEDF, sent the School District which had expenses. The court held oral and statutorily required Notice of its detailed then issued argument on the fees and 20, 1993, brought August Intent to Sue that directed the on December order 30, 1994, alleging that there on March suit findings of fact proposed to submit the terms of “repeated violations” of were The court’s order conclusions of and law. Pollution Dis- District’s National the School stated, inter alia: System permit because of charge Elimination [Ejach proposed party shall order submit Elementary Wylandville discharges from the detail, forth, specific its set which shall tributary system into a of sewage School completely resolving this is- proposal for in North Strabane Little Chartiers Creek adopt as its own the sue. The court will Pennsylvania. alleged PEDF Township, modi- findings sign, without proposed and damaging the creek violations were which, in fication, proposed the one 1311(a) §§ and 1342 violation of 33 U.S.C. court, most reason- judgment relief, injunctive penalties civil sought able under the circumstances. entity not the and costs. original). Neither (emphasis in App. at 94 pollution. The Penn- concerned about this order, filed objected to this and both Re- sylvania Department of Environmental proposed findings and conclu- required (“DER”) the School renewed sources sions. 17, 1994. permit on March District’s NPDES proposed findings of fact and con- PEDF’s District DER also informed School $70,- requested a total of clusions of law to take to come into measures it needed by the figure It Envi- 282.09. arrived at compliance permit limits. The Eckerhart, Hensley formula set out Agency, which had ronmental Protection 76 L.Ed.2d 40 contemporaneous investi- U.S. conducting a been (1983), calculating a “lodestar” based through Proposed As- gation, submitted a Notice hourly rate” of proposed Penalty against on a “reasonable sessment of Civil per attorney amount, hour for E. John Childe of this $160 the Court will award this Smith, per Paralegal Cindy hour for amount at $60 Opinion time.” D.C. at 22. multiplied by reasonably expended.” jurisdiction “hours We' have over appeal PEDF’s App. pursuant 118. PEDF submitted a detailed to 28 U.S.C. charges

account of these accompanying II. slips. time The School District’s findings of fact sug- and conclusions of law award of fees in this case is gested $20,414.62. the much lower fee of authorized under the provision citizens’ suit The district verbatim the Act, of the Clean provides Water proposed findings District’s of -fact “may (includ- a court litigation award costs of law, except conclusions submit- attorney reasonable expert witness ted its own fees) short introduction. It follows prevailing or substantially pre- although we will refer to the court’s vailing party, whenever the court determines order, it must be -that remembered the “or- such award is appropriate.” 33 U.S.C. der” is in fact in language prepared 1365(d). The places statute no restriction the School District. on the award other than that the enti- tled to the award be “prevailing or substan- Although highly the order was critical of tially prevailing.” aspects certain of PEDF’s request, in- Eckerhart, In Hensley 424, 103 cluding 461 rates U.S. expendi- and the Pennsylvania 1933, (1983), S.Ct. issues, ture of 76 L.Ed.2d 40 time on certain it did not explicitly Valley Delaware reduce the hours that Citizens’ Coun PEDF . billed v Air, 546, cil Clean 478 for these services. U.S. 106 keyed S.Ct. for 3088, (1986), 92 L.Ed.2d 439 Supreme the determination that PEDF was entitled to approach Court period first fee for the after set in which the forth School opinions Builders, in Lindy Bros. compliance.” stated, District was in “full It Inc. v. American “By January 1995, Radiator & Standard undisputed is thus Sani tary Corp., Cir.1973), 487 F.2d 161 that no further violations occurring were at Builders, Lindy Bros. Wylandville Inc. v. Elementary system, American Ra School $18,000 Sanitary diator & expenditure Corp., Standard 540 F.2d for structural (3d Cir.1976), 102 respect appro modifications problems assured that priate procedure and calculations, would not considerations for a By recur.... its own district court to $8,963 awarding attorneys’ follow in expended PEDF had attorney’s in fees. Central Supreme fees as of Court’s deci Wylandville the date when the sions adoption has been its Elementary system “lodestar” compli- School was in full formula, requires multiplying Opinion ance-” the num D.C. at 7. On the basis ber of reasonably expended hours that PEDF needlessly pursued the liti- hourly 1995, reasonable rate. gation after See Blanchard v. after the viola- 87, 94, Bergeron, 939, 489 abated, U.S. 109 S.Ct. tions had been 103 adopted by the order (1989); Valley L.Ed.2d 67 Delaware granted PEDF Citizens’ all of the Council, 564, 3088; 478 at U.S. 106 S.Ct. requested fees it had for the time Stenson, 886, 888, 104 Blum v. 465 period 1995, U.S. through January S.Ct. but no fees for 1541, (1984); date, Hensley, 79 L.Ed.2d 891 spent $1,910 461 except time after that 433, 103 U.S. at S.Ct. 1933. in connection with the consent decree. It $3,000 also awarded in fees con- “starting point” The in determining $6,541.62 litigation nection with the fee appropriate hourly rate is the Opinion costs. D.C. at 21-22. billing usual rate. Public Interest Research order, language The stemming of N.J., Windall, 1179, Group from the Inc. v. District, (3d Cir.1995). concluded that “the total of 1185 The Court has $20,414.62 generous under the circum- directed that the district court should then stances, and, although the facts “prevailing and law re- consider the market rates” duplicative lating billing, hourly Blum, community. rates and relevant 465 at U.S. degree difficulty justify (1984); a reduction 104 S.Ct. 1541 see also Missouri v.

Jenkins, 274, 285, 491 U.S. 109 S.Ct. mined does the district court have discretion (1989). and, so, calculating doing consider results obtained 105 L.Ed.2d determination, spent to exclude some or all of the time part of the lodestar second reasonably expended, unsuccessful claims.” Id. at 1190. “[t]he the time charged, court should review the time decide importance We also stressed the reasonably whether the hours set out were court’s articulation of the basis for the award. expended particular purposes for each of the “pro- We stated district court must described and then exclude those that are explanation vide a but clear concise of' its ” ‘excessive, redundant, or otherwise unneces- reasons for fee award.’ Id. at [a] ” Windall, sary.’ (quoting 51 F.3d at 1188 (quoting Hensley, 461 at U.S. 1933). 433-34, Hensley, 461 U.S. S.Ct. 1933). The defendant in con- Windall had Once the court has calculated the lodestar it cross-appeal tended amount, may adjust primarily based on spe- had failed to consider some of its degree plaintiff of success that the ob- objections regarding expend- cific the hours Hensley, tained. 461 U.S. at See stated, response, ed. In However, S.Ct. 1933. the cases make clear magistrate judge [t]he did not consider the made, any adjustments that before are objections particular Air Force’s time district court must calculate a lodestar. See charges. magistrate judge was reluc- Windall, 51 F.3d at 1190. guess tant judgments to second counsel’s particular about what time Windall, and attention court this considered a district legal problems given. Hensley, should be court’s award of fees under however, 1365(d) directs district courts to Act, consider of the Clean Water which objections party’s particular- a time presented public a situation where the inter- charges findings and make their on the group plaintiffs injunc- est had been awarded hours that should in be included calculat- monetary damages. tive relief but The ing the lodestar. The court district failed applied percent nega- district court had a 50 findings make such here. multiplier tive to the lodestar because of the monetary failure to obtain relief. Id. at 1189. Id. at necessary pro 1189. Our view of the appeal, nega- On we held that the use of the explicit passage cedure was made-- in the n error, multiplier rejecting tive stated, which we “[t]he district court seems “rough approach applied by mathematical” thought negative multiplier have that its the district court. Id. at 1189-90. made specific attention to the Air Force’s objections unnecessary. Hensley does not Throughout opinion emphasized we permit such a short cut.” at Id. 1189 n. 14 importance of adherence to the formulaic added). (emphasis approach Supreme set out Court. At outset, we stated that the of a Court continued to fol award is within approach Hensley, the district court’s discretion low the lodestar after but long ‘employs emphasized “so as it correct per standards and that the district court was procedures findings adjust and makes of fact not depending mitted to the fee on the ” clearly (emphasis erroneous.’ Id. at Valley situation. See Delaware Citizens’ added) Council, (quoting Northeast Women’s Ctr. v. U.S. 106 S.Ct. 3088. (3d Cir.1989)). McMonagle, However, us, 889 F.2d in the case before the district apply we held that dispense process, rather than decided with that percentage may across-the-board reduction be arduous and is often re- adversari achieved, al, flecting its view of the result adopt determined advance to district court findings party should have considered the re- and conclusions of one or lationship degree between the App. of success and other “without modification.” at 94. step procedure the amount of the award. That That party adjust could forced each only be taken after the court knowledge had calculated its submission because of the is, however, lodestar. “It essential the district court would choose one of effect, considering options. calculate the lodestar before ad- two justments. Only auction,” after the lodestar is deter- a conducted variation of a “silent parties bidding against with the adequately performed themselves the decision reaching nothing (citation and each other. While there is process.” omitted). Id. at 652-53 wrong encouraging party a who seeks a The central issue is whether compromise request, fee to there is no court has independent made an judgment. justification use of for the the “silent auction” Colony In re Square, See 819 F.2d at 275-76. setting statutory a fee and no case, In this because the circumstances any authority has cited which would underlying the entry of the order are clear may allow it. The instances in which courts record, from the presume we cannot approach not have followed the lodestar have district court independent made an judgment been, know, as far as we instances where the about the law and then decided that one agreement have reached an as to the party’s proposed findings of and conclu- fact Regrettably, amount of fee. a such resolu- sions of precisely expressed law its judg- tion was not in this reached ease. ment. because the court announced In support used in advance it procedure, would use this court, the Sehool District refers us to cannot discount possibility that the dis- opinion Joint Wa- Lansford-Coaldale may trict court agreed have in totality Corp., ter Auth. v. Tonolli 4 F.3d 1209 with the findings legal of fact or conclusions Cir.1993), where we stated that “a district proposals, either of the but chose one findings, when verbatim from simply because it came closest to its own party’s proposed findings, do not demand view. While course of action stringent scrutiny more appeal.” Id. at court, facilitated the decision for the district precedent, We adhere to our own only contrary it is not to the established views, notwithstanding other on this issue. awarding attorneys’ fees bút See, Co., e.g., Sierra Club v. Cedar Point Oil also judge’s offends our findings belief (5th Cir.1996) (stating on represent and conclusions judge’s should review of an assessing penalty, view, no more and no less.1 “the court proposed Sierra Club’s findings and conclusions with minimal revi- III. circumstances, sion. Under such we review caution”); the findings court’s of fact with In The School District concedes that the Co., Colony Square re 819 F.2d 274-75 procedure by used the district court did not (11th Cir.1987) (citing admonishing cases tri- steps adhere by Supreme directed the al adoption courts for proposed verbatim of Court for fixing of a contested counsel fee. by litigants). order drafted the School argues District that PEDF objection waived its defects in concern goes beyond Our here the procedure by failing object when it adoption verbatim party’s proposed of a find by was announced the district court. It is an ings of fact and conclusions of law. We argument that Odeco, without some merit. agree with the court Inc. v. Avon circumstance, Inc., (5th the usual party’s a fáilure to Shipyards, dale 663 F.2d 650 Cir. object 1981), will result waiver of an issue on that the “mere fact” that a district appeal. Pools, Inc., adopts Sylvan court See Fleck v. KDI party’s a factual findings verba (3d Cir.1992). Here, tim 981 F.2d “does not itself indict them.” What is key PEDF findings interpose any objection is whether those did not are in fact reflective of the district district court’s court’s views. announcement that it would such a adoption acceptable by verbatim set the accepting party’s was fee one submis appellate court in Odeco sion or Notwithstanding because the other. “[t]he PEDF’s record that fully attempt justification rationalization, reflects the trial court com and prehended legal the factual and object. issues and the fact remains that it did not dissenting colleague 1. Our disputed attorney's notes that subject we cite no fee to a disapproves that the district court's "ei- Court’s instruction on the to be fol- know, protocol. may As far we appropriate as in no lowed. ther/or” other case has a dure, What be for baseball applied proce- salary necessarily district court appropriate arbitration is not n certainly fixing not in connection with for the law courts. complaint by filed spent drafting a similar

Nonetheless, recognized we PEDF, never found what the court may applied plain error be concept of Instead for each task. time objection reasonable despite the lack context the civil adjustments it apparently made the court a serious committed court has when a district by accepting desirable may have believed integ jeopardized the flagrant error “cut-off’ date for District’s generally proceeding. See Wal rity of the points PEDF out that action. the entire Corp., F.3d Georgia-Pacific v. den — rulings with the after is inconsistent denied, (3d Cir.1997), U.S. cert. 520-21 rejected District’s the School which date (1998). -, 140 L.Ed.2d 669 authorized, even stay and which request for legal an established from clear deviation necessarily encourage, further if it did course, error. Of plain as qualify rule can PEDF. by action only “sparingly.” power we exercise this is a Lines, Tank Inc. See Chemical Leaman that the district argues District The School Co., 976, 993-94 & Aetna Cas. Sur. a “lode- implicitly calculate order does court Cir.1996). instance, because the In this by adopting $60 the rate $160 star” goes was entered in which the order manner original petition, from PEDF’s fee per hour judicial process, we will to the heart of multiplying that hours notwithstanding procedure, address of 1995. We expended before find so, objection. doing PEDF’s lack of it re- unpersuasive because this assertion bring failure to be PEDF’s assumptions do not condone that have no quires us to make approval which, contrary court its lack of fore the district support in the order lodestar, embark the court was the course statements adopting the contains have, probably components of a ing, and its silence calculated questioning did, district court. mislead the lodestar. any indication that the district Nor is there ruling, the court’s we review Once separate for fees in made a calculation court serious plain. There can be no error required petition, the fee as connection with “prevail- dispute qualified as that PEDF 1190. PEDF 51 F.3d at Windall. party.” It follows $12,802 original preparing sought decided reasonable should have first $8,560 preparation petition and “prevailing market hourly rate on the based conclusions of proposed findings of fact and by the multiplied that rate” rule and rate $3,000. law. The order awarded reasonably expended to obtain time explained in terms of figure is never This then should have The court “lodestar.” of a lodestar required separate calculation any, least in adjustments, if based at made peti- in with the fee for the fees connection litiga- of the part degree on the of success adjustment to that subsequent tion and tion. criteria. The figure based on the allowed rate, hourly Regarding the requested merely that the fees order states that court’s order stated “PEDF’s the re- and notes were unreasonable by Pittsburgh hourly high even stan- rate is request preparing in the fee quest for fees counsel, is in whose dards. Plaintiffs office request fee nearly percent of the total Hummelstown, Har- community near a small litiga- duplicative of in other requests be risburg, has offered evidence sufficient explanation That is not to tion. legal typical hourly rate for services compliance with the direction constitute commu- public non-profit organizations his Windall. Opinion per hour.” nity D.C. exceeds $80.00 comment, contends The School District the court Despite 14-15. this employ the district court failed through even if hourly requested rate allowed the “harmless.” legal principles, it was although Similarly, correct

January of 1995. court had calcu argues that if the district It propriety of time claimed questions adjust lodestar, made respects, lated a then petition in in the PEDF several fee ment, a lesser PEDF would have received prepara- failing apportion time for as such did, thus PEDF did not than it ease with that complaint this tion of the possible from suffer the district court’s error. permitted should be pre- recant its reject specu- We this contention because acquiescence it is vious pro- district court’s simply tocol, lative. We cannot know from this particularly where no rights substantial record the court would have any parties what done. implicated. have been Both parties addressed merits of Second, majority has not explained ultimately the amount awarded. We do not why cases where the calculation of lode- reach that issue. we will await such star disputed amount is govern should cases time as we have district court order that such as this case where it is the accepted protocol. follows the itWere giving rise to attorneys’ fee award it- importance for the of the issue raised this self—and not pursuant the calculation to the ease we would be most reluctant to visit this lodestar formula —that is at issue. The ma- litigation again satellite on the district court. jority has cited holding preferable It parties be were the (in procedures case, of this kind this remaining resolve the issue negotiation or district court’s and “without modi- “either/or” mediation, only suggest a course we can 1996) fication” order of December are ille- not direct. gal. agree Parties can to an attorneys’ fee award, majority and the acknowledges that

IV. agreements such governed are not by the lodestar majority calculus. The fails to ex- reasons, For the above we will reverse the plain, however, why parties cannot also order of the district court awarding attor- agree PEDF, neys’ fees and remand for further employs determining those fees. proceedings consistent with opinion. this By holding that the lodestar must formula GARTH, Judge, Circuit dissenting. employed be objec- even the absence of an proce- district court utilized a novel tion, effectively holds that the dure to determine the amount of analysis lodestar must be in every utilized PEDF, Appellant fees to which pre- as the application that comes before vailing party, was entitled. Neither PEDF the district courts of this Circuit. objected nor the School District ever to this according majority, agree can procedure, although they were am- afforded lodestar, to a fee outside the reach of the but ple opportunity time and to do so.' Notwith- they agree cannot to an proce- alternative fact, standing this PEDF now appeals the dure to determine those fees. use of the district court’s precedent As I believe this is no majority reverses. unjustified far-reaching holding, I re- spectfully dissent. I. I dissent from opinion must II.

panel majority for two fundamental rea- sons. simple The straightforward: facts are and First, PEDF acquiesced to the district (1) The parties reached a settlement court’s procedure, and therefore waived its agreement year litigation, one after right appeal. to raise this issue on PEDF agreement their in a memorialized consent admittedly understood the district court’s decree. The consent decree did not resolve order, and “without modification” “either/or.” fees, attorneys’ the issue of but left instead nevertheless, strategically chose not to that issue for court to address. object. by majority cited the (2) 2,1996, a lodestar requiring calculation no has rele- On December the court district Here, vance this case. parties to both had directing party issued an order each to sub- objection waived all to the proposed findings district court’s mit its of fact and conclu- order. light, Viewed in this I regarding do not feel that sions of law the issue of satisfactorily explained why provided: fees. order That party proposed accepting fication instead shall submit School Dis-

[E]ach forth, detail, specific which shall set its trict’s. proposal completely resolving this is- That PEDF’s deliberate choice to not ob adopt The court will as its own the sue. ject to the district court’s subse proposed findings sign, without modi- quently turned out to have been disadvanta which, fication, proposed order the one geous reversing cannot be a basis for court, is the most judgment district court’s decision. See Bivens Gardens the circumstances. reasonable under Banks, Bldg., Inc. v. Barnett 140 F.3d Office

Order, 2,1996 (emphasis original). Dec. (11th Cir.1998) (holding plaintiffs (3) 13, 1997, February On the district waived the issue of the district court’s recu- adopted without modification court plaintiffs strategically sal when the decided proposed findings. District’s School not to raise the recusal issue trial before despite upon their awareness of facts (4) nearly a half Although two and months the motion for recusal would have been elapsed from time the district court based). Indeed, after the district protocol established the to which both District’s acquiesced and the time the court announced PEDF-fybr findings that time— decision, first its at no time did either complained by filing a Motion for Reconsid object to the district court’s order. eration, and even in PEDF motion did (5) 24, 1997, February PEDF On filed a' identify the district court’s as Reconsideration, Motion for but in that mo- gravamen complaint. Quite simply, object tion still did not “either/or” objecting, right PEDF waived its to protocol that “without modification” the dis- appeal pro the district court’s adopted. trict court had Pools, Sylvan cedure. See Fleck v. KDI (6) During argument,1 oral counsel for (3d Cir.1992). Inc., 107, 116 that he conceded understood the dis- D’Andrea, Casualty In Continental Co. v. 2, 1996, pro- trict court’s December order as Inc., Cir.1998), this F.3d Court (the posing an situation: “either “either/or” recently upheld magistrate judge’s attorney court) going accept pro- district $38,000 objection fee sanction of where no or posed findings going accept he was appeal to the district court had been taken According School District’s.” to counsel for Continental, magistrate counsel. PEDF, question “there was no about that.” D’Andrea, defendant, judge required the pay opposing party’s attorneys’ his fees and III. discovery costs for additional as a condition I right believe that PEDF has waived its permitting D’Andrea to amend his answer pursue appeal on the basis of the nearly years original two after the answer by the utilized district court had been filed. determining attorneys’ argu- fees. At oral ment, object counsel for PEDF magistrate conceded that he D’Andrea did not condition, adopted pro- judge’s understood the district court’s and at no time did he raise proce- cedure the ramifications of that the issue for review before the court. Court, acknowledged speaking dure. PEDF Judge “there was Rosenn question” objection, would concluded that the absence anof accept proposed findings accepted imposed either PEDF’s and D’Andrea the condition accept upon fee award or it exchange privilege the School him in for the proposed findings District’s Judge and fee award. amend his answer. id. at 232. See reasoned, now, strategic amade decision not to Rosenn as I that the fail- do object proposed proce- object strategical to the district court’s ure to reasons consti- hope might (“Presumably, dure the that the district court tuted a id. waiver. See accept PEDF’s—proposal that, without modi- reasoned even [D’Andrea’s counsel] its— during panel argument 1. These concessions were made and a the first was reconstituted second 21, argument Judge oral held on 1998. The held after Lewis fell ill.

237 imposition (2) with the of the fees rule; and deviation from or legal violation of a costs, strategic pay for his client to plain i.e., the error must be clear and obvi — circumstances.”) them under the (3) law; ous under current and the error must rights. affect substantial See Walden

Furthermore, even if D’Andrea had not Georgia-Pac. Corp., 506, v. 126 F.3d 520-21 condition, accepted magistrate judge’s the — (3d Cir.1997), denied, U.S. -, cert. applicable terms as to the case at hand as 1516, (1998) S.Ct. (citing L.Ed.2d 669 Continental, they Judge were to Rosenn Olano, 725, 732-34, United States v. 507 U.S. commented that this Court not should inter- 1770, (1993)); 113 S.Ct. 123 L.Ed.2d 508 ruling fere with a lower see the absence Fleck, also objection (stating F.2d at 116 procedures of an because such error must be “fundamental highly prej party allow a sandbag would the district udicial” that results' in a “miscarriage jus parties by allowing court and other tice” to warrant a party reversal when did inviting the court to an make error and below). object during proceeding springing It has then the on the other issue practice been our power to exercise our appeal. 9A Wright See Charles A. & Miller, plain reverse for sparingly. R. error Arthur Federal Practice See Wal & Pro den, 2472, (1995). 126 F.3d at 520. Explicit cedure at 93-95 opposition objection to or an on the record ease, only this was there no error— to a permits the court to plain let alone error —in the district court’s position consider the opposing party of the protocol, below, choice of as I discuss but the modify, abandon, possibly or even the majority explained has not how the district light arguments order in raised. court’s order affected PEDF’s “substantial Continental, (citations 150 F.3d at 252 omit- rights” or resulted in “miscarriage jus- ted). majority tice.” by-passed has case, present In the PEDF knew and ac this critical “plain element of error” review cepted the fact that the district court was not by announcing that the district court’s al- going engage any adjustments or make leged “jeopardized error integrity computations of its own when determin proceeding.” Op. at so Majority appropriate case, very fee in this as it stating, majority appreciate has failed to might well if objected done PEDF had jeopardizing the fact that integrity of a to the district court’s proceeding meaningful in the context employed court had then a traditional lode rights supposed- substantial that were Eckerhart, approach Hensley star under ly prejudiced. 461 U.S. 76 L.Ed.2d 40 (1983). explicit Given the district lan case, $20,414.62, In this PEDF received guage order, in its December $70,282.09 instead of the requested. counsel for PEDF’s acknowledged under Apart from fact predict that no one can standing language, of that it was incumbent that PEDF will receive a different fee award upon PEDF position to make its known at majority’s remand,2 majority after the object that time and “either/or” authority cites holding that the nature of “without op modification” if it attorneys’ fees and the amounts involved posed protocol. such a It not. did implicate rights here PEDF’s substantial hindsight benefit of change pro cannot injustice result in manifest such that we infirmity. cedural plain should exercise our review under the

Furthermore, Indeed, majority error compelled turned a doctrine. I am eye blind point toward the strict that a standards out that has cited no litigant satisfy must to seek review way under at all which in any “plain jurisprudence. plain error” repudiate protocol Under utilized standard, error requirements three Accordingly, must be court. I would hold that ’ met: there must be actual error —a issué has been waived. Windall,

2. We defer to the Group, Cir.1995). district court's discretion in Inc. v. making fee awards. See Public Interest Research 238 however, cases star, nothing to do with has

IV. to a either consented parties the have where the of contention basis My second (i.e., agreement) or have a fee particular fee is fact there the that majority stems from by a utilized particular formula agreed to about the improper or nothing illegal simply fee, that to determine court district employed for court procedure the district by the formula such as only in- Citing fees. determining court here. appeals inapposite attorneys’ fee apposite — above, eases none of the as noted because of outstand- parties the issue settle When opinion a dis- majority involve in the cited fees, our realm to instruct it is without procedure court’s the pute over district —the mutually acceptable at a to arrive them how district reverses the majority this Court attorneys’ fees is If amount of the amount. that has procedure implementing court for no in controver- accepted by parties, all case by any court. While disapproved never been oversight judicial sy for us to exercise exists acknowledged where majority the has of how those judicial regardless or review particular attor- agreed to a parties the have pro- ultimately or what determined fees were follow fee, agreement need not neys’ their any, parties if the em- principle, or cedure approach delin- comply with the lodestar nor par- When the in their calculations. ployed proge- Hensley Eckerhart and v. eated award, they stipulate to fee or ties consent that PEDF’s recognize ny, it has refused consenting necessarily are protocol ordered object to the failure to though even employed to derive award acceptance of to an this case was tantamount a tra- may not involved accep- procedure. That of that the outcome within analysis. It is not lodestar ditional is not by PEDF and the School District tance na- consensual province question than an substance one whit different agreement. ture of that particular fee by parties to a agreement arrangement. token, is no By difference the same there by protocol employed between us, ease before objec- in this case without court eases where cited and discussed i.e., pro- party’s accepting one the calculation parties have contested tion — findings modification —and posed without lodestar, formula the use of the lodestar parties typically settle means which both Valley Pennsylvania v. Delaware itself. See In the latter agree upon or fees. Council, 478 U.S. S.Ct. Citizens’ agree on the parties where instance (contesting lode- 92 L.Ed.2d attorneys’ fees be awarded amount of on the enhancement calculation based star rarely, if party, the successful performance by opposing superior a fee for ever, Eckerhart, lodestar calcula- counsel); employ a traditional U.S. Hensley v. (1983) (revers- Moreover, in each instance —where tion. 76 L.Ed.2d particular method objection is raised to a be- calculation ing district court’s lodestar for its relationship to consider cause court failed determination, parties agree on or where all prevailing party the success of between lode- of fees to be awarded' —no Public the amount granted); of the fees and the amount indicated, nor, contrary to the Windall, analysis star Group Research Interest assertions, Cir.1995) utilized. must it be majority’s (contesting district agreement negative multi- both applying lodestar calculation situations — the fees themselves —the agreement market as basis for plier, using incorrect protocol irrespective of the rate, award valid duplicative and hourly failing to deduct time). upheld.3 used must be calculation of the lode- excessive principles The ma- informally sug- were not involved. lodestar Similarly, court had the district object agreement, as jority meet gested District such that PEDF does ap- and seek court’s chambers majority acknowledges outside of the district lodestar attorneys' fees without determining to settle the issue always attor- proach used is not intervention, any agreed upon neys’ fees: despite traditional the fact that have been valid Yet, the Court has now held that player unless who sets his demand high too or a approach used, the lodestar is stingy club that an makes offer too low is fee by determination made the district court likely to lose.... illegal. only Not does this conclusion fail Id. added). at (emphasis 87-88 The author to account for those parties cases where the explains that system does this en- agreed particular have ato sum and have not courage settlement between the parties, but upon based that sum the lodestar —which the it also has the effect bringing the salary majority acknowledges is clearly accept offer and the player’s demand togeth- closer able —but as I pointed have out it also runs er, as both sides attempt predict how the counter to spirit of innovation that this arbitrator will rule. See id. at Hence, 88. Court has encouraged district courts to nur just as district courts have been encouraged ture when faced with varying See, situations.4 to employ alternative dispute resolution tech- e.g., Krell (In v. Prudential Ins. Co. re: niques, so too they should be encouraged Co.), Prudential Ins. 148 F.3d 283 Cir. look to other disciplines and to employ 1998) other (upholding as “appropriate” and “inno labor-saving techniques so as adopt effi- vative” the district court’s novel use of a cient, time-saving, and effective means of bifurcated fee in large, structure nationwide disposing of disputes. controversies and suit). class action Indeed, as I pointed have out, the majority preferred would have I agree while that a district court parties agreement reached employ should a traditional analysis lodestar case, irrespective of whether that settle procedure when the or disputed, standard is ment would have been upon based the lode I agree cannot that the lodestar calculation star calculation. See n. supra.5 must be employed every attorney fee de- Despite majority’s disapprobation, the termination that arises before the district protocol employed by the district court— jurisprudence court. Our is sufficiently flexi- choosing one parties’ proposals ble without to allow for varied approaches, depending modification —is illegal neither upon nor radical. the circumstances of the case and the Such a dispute-resolving will parties. been view, In my parties may in major league used salary baseball by arbitra- agreement or objection, without as they with great tions nearly years. success here, did utilize an alternative See Roger Abrams, I. Legal Bases: Baseball calculating fees without offending juris- (Temple Law 87-89 Univ. prudence. Press 1998). Under salary baseball’s arbitration scheme, a neutral arbitrator V. selects either final demand of the eligi-

ble player or final offer of the employ- conclusion, I fear that the ramifications ing [baseball team]. The may arbitrator of this Court’s decision transcend the issue of not mediate or compromise.. greedy .A attorneys’ fees may have the effect of [t]he instances in which courts not have tion Co. Comm'n, Energy Regulatory Federal been, followed the approach lodestar (5th have Cir.1987), as 814 F.2d 998 op. clarified know, far as we parties instances where the Exploration Mobil Oil Co. v. Energy Regu Federal agreement Comm’n, reached an as latory (5th Cir.1987) 814 F.2d 1001 of the fee. Regrettably, such a (holding resolution was that venue properly was determined not reached in this case. the toss of a coin where proceeding the same Majority Op. Furthermore, at 233. same). instituted in two circuits at the by stating concludes prefera- "[i]t would be ble were the to resolve remaining light 5. “either/or” by negotiation mediation," issue id. protocol, "without modification” I make no com- neither of which upon is conditioned a lodestar ment about applicability the lodestar's to this Hensley, calculus. See also 461 U.S. at however, recognize, case. I course, S.Ct. ("Ideally, litigants will set- court was of the view that it had adhered to a fee.”) tle the amount of a calculation, lodestar accepting rate PEDF’s 31, 1995, up hours until date Furthermore, there support determined School District court’s use of "either/or" mak- compliance had been in permit with the See, e.g., determination. Explora- Mobil Oil effluent permit. emissions allowed under its Madigan; Bruce Roger Loeper; A. seph ap- non-traditional innovative stifling Mellow; F. Harold Marks; J. Robert S. management and issue case proaches Musto; Michael Jr.; Raphael Mowery, J. cannot If courts district courts. the district Pecora; E. John O’Pake; A. Frank A. in- without newa inaugurate Terry Porterfield; Peterson; Eugene E. I procedure, Court —a of this terference Reibman; James J. Punt; F. Jeanette L. declared been never add, has might, Robbins; Frank A. Rhoades; D. Robert any other court by this improper illegal or Schwartz; Tim Salvatore; Allyson Y. of dis- guilty be we will today until —then Shumaker; Patrick J. Shaffer; J. John litiga- modern of development couraging Barry Stewart; J. Stapleton; J. William of face practices techniques tion Wag Tilghman; Jack Stout; Richard sky-rocket- increasing dockets ever Williams; Hardy Wenger; ner; W. Noah reversing By litigation. of expense Pennsylvania; Robert of Court and novel different using a court for Zappala; Stephen Flaherty; Nix; John parties acquiesced, protocol Cappy; Ralph Papadakos; Nicholas the unfortunate may have decision majority's Castille; Montemuro; Ronald Frank innovation chilling district effect Pennsylvania Court Commonwealth management. ease efficient Joseph Discipline; F. Judicial has here suggest I Burns; Dawso McCloskey; F. William micro-manager. into a this Court turned n DePaul; K. Muth; Carol Peter R. permitted unjustifiably doing, so Donohue; Jus McGinley; L. Christine without apple” at the bite “second PEDF a Cassenbaum; Johnson; William tin M. objec- known having made PEDF ever Board; Joseph A. Del Conduct Judicial Accord- protocol. the district tion to Edmunds; M. Ed Diane Sole; J. Arthur court’s Feb- affirm ingly, I would Egan; John W. mundson; P. Gerald 13,1997, ruary order. Hill; Matthew Herron; Wells Frederick otherwise, I held majority has Because O’Connor; MacDonald; J. Gerald Anita dissent. respectfully Rubendall, Palm; W. Charles Andrew Watson; Russo; C. II; E. Bernard James III; Arbuckle, A. Ant Bruce J. William Bergstrom; Admin kowiak; A. Thomas Courts; Pennsylvania istrative Office Sobolevtich; Frank David Nancy A. M. and individual forter, official their Senators, capacities; Individual Andrezeski, Anthony Afflerbach, B. Roy C. LARSEN Rolf Baker, Al Armstrong, Earl E. Gibson Bell, Leonard Belan, D. Clarence bert V. Bortner, David J. Bodack, E. Michael J. THE COMMONWEALTH OF SENATE Corman, Doyle M. Michael Brightbill, J. Roy PENNSYLVANIA; Affler C. OF Fisher, J. Vincent Dawida, B. Michael Andrezeski; Anthony Gibson B. bach; Greenleaf, A. Melissa Fumo, J. Stewart Baker; V. Albert Armstrong; Earl E. Heckler, W. Hel Edward Hart, W. David Bell; Bo J. Belan; D. Leonard Clarence Jones, Holl, H. frick, Roxanne G. Edwin Bortner; J. David dack; E. Michael Lavalle, Jubelirer, J. Gerald C. Corman; Robert Doyle Michael Brightbill; J. Jr., Craig Lemmond, Lew H. D. Fisher; Charles Vincent Dawida; B. Michael M. Loeper, Joseph Lincoln, F. is, Greenleaf; J. William Melissa Fumo; Stewart J. J. Marks, Madigan, S. Roger Bruce A. Heckler, Edward W. Hart; David W. A. Mowery, Mellow, F. Harold J. Robert Holl; H. Roxanne Helfrick; G. Edwin Musto, A. Michael Jr., Raphael J. Jubelirer; J. Gerald Jones; C. Robert Pecora, Peter E. O’Pake, John A. Frank Jr.; Lemmond, H. Lavalle; D. Charles Terry Porterfield, L. Eugene son, E. Lincoln; Jo F. Lewis; William Craig J.

Case Details

Case Name: Pennsylvania Environmental Defense Foundation (p.e.d.f.) v. Canon-Mcmillan School District

Court Name: Court of Appeals for the Third Circuit

Date Published: Aug 11, 1998

Citation: 152 F.3d 228

Docket Number: 97-3136

Court Abbreviation: 3rd Cir.