Appeal from the United States District Court for the Western District of Pennsylvania (Pittsburgh).
Aldisert and Weis, Circuit Judges, and Re, Chief Judge.*fn*
Appellees successfully prosecuted a federal civil rights action and were subsequently awarded an attorney's fee. Title 42 U.S.C. § 1988 provides that, in such cases, the district court may, "in its discretion," allow the prevailing party such an award. The principal question presented on appeal is whether the district court, in exercising its discretion, must take into account the extent to which the prevailing party succeeded on the merits when it determines what constitutes a reasonable award. Because the court below did not do this, and because the recent opinion from the United States Supreme Court in Hensley v. Eckerhart, 461 U.S. 424, 103 S. Ct. 1933, 76 L. Ed. 2d 40, 51 U.S.L.W. 4552 (1983) makes this mandatory, we must vacate and remand for further consideration. In so doing we note that Hensley was announced after the filing of the district court opinion in the instant case so that the court below did not have the benefit of the Supreme Court's latest teachings.
The present attorney's fee request follows extensive litigation concerning conditions at the Allegheny County Jail in Pittsburgh, Pennsylvania. The suit began in 1976 when Neighborhood Legal Services (NLS), a publicly funded legal service organization, filed a class action on behalf of inmates in the jail alleging that various elements of their treatment violated their constitutional rights. Constitutional violations were claimed relative to the living conditions, use of restraints, adequacy of medical treatment, access to legal materials, use of disciplinary segregation, censorship of mail, use of telephones, and restrictions on visitations. Following an initial trial, an appeal to this court (Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754 (3d Cir. 1979)), and a hearing upon remand, the district court ruled in plaintiffs' favor on most, but not all, of the constitutional claims.
Five months following the trial and six months following the hearing, NLS applied for attorneys' fees under § 1988. Submitting detailed documentation, NLS successfully requested payment for 1,083 hours on the main proceedings and 196 hours for the hearing on remand, each at a rate of $50.00 per hour, for a total award of $63,950. Defendants appeal, arguing alternatively that the award should either be eliminated or reduced because: (1) the applications were untimely, (2) the case contained several " special circumstances," and (3) the district court failed to take into account the limited extent to which plaintiffs succeeded on the merits.
Absent a local rule establishing a time limit, the timeliness of an application for attorney's fees is a matter for the district court's discretion. White v. New Hampshire Department of Employment Security, 455 U.S. 445, 71 L. Ed. 2d 325, 102 S. Ct. 1162 (1982). An application should be denied as untimely if the lateness of its filing causes unfair surprise or prejudice to the defendant. Id. at 454. The fee application in White was made about four months following the district court's final judgment and, on remand from the Supreme Court, was deemed timely. White v. New Hampshire Department of Employment Security, 679 F.2d 283 (1st Cir. 1982). In the case at bar, the district court, relying on the teachings of White, found that "the defendants here have asserted no unfair surprise or prejudice" and ruled the applications timely. Inmates of Allegheny County Jail v. Pierce, No. 76-743, slip op. at 5 (W.D.Pa. 1982), reprinted in app. at 218A. Upon reviewing the record, we find no abuse of discretion in the trial court's ruling. We now address appellants' substantive objections to the award of fees.
Appellants' contend that the district court erred in not reducing or denying the fee award because of the "special circumstances" of this case, to-wit that: NLS is publicly funded, the award would amount to a windfall to NLS, and the award would be paid by Allegheny County which has already incurred substantial costs from this litigation. We have recognized that "special circumstances" may be taken into account to reduce an otherwise reasonable attorney's fee award under § 1988. Staten v. Housing Authority of the City of Pittsburgh, 638 F.2d 599 (3d Cir. 1980). After carefully considering appellants' arguments, we conclude that the district court did not err in refusing to recognize the asserted "special circumstances."
First, awards under § 1988 are available to publicly funded legal service organizations, Rodriguez v. Taylor, 569 F.2d 1231 (3d Cir. 1977), and representation by a publicly funded agency is not a "special circumstance." Brown v. Stanton, 617 F.2d 1224 (7th Cir. 1980). Although a district court may, in its discretion, reduce an award because the prevailing party's attorneys were publicly funded, "such a reduction is not mandatory and [should not] be routinely done . . . ." Gagne v. Maher, 594 F.2d 336, 345 (2d Cir. 1979), aff'd, 448 U.S. 122, 65 L. Ed. 2d 653, 100 S. Ct. 2570 (1980). Second, although the statute seeks to prevent "windfalls" its concern is limited to clients and does not extend to attorneys, either public or private. Rodriguez v. Taylor. Moreover, much of the concern over a possible windfall to the attorney for the prevailing party may be met in determining the reasonableness of the fee. Finally, the losing party's financial ability to pay is not a "special circumstance," Entertainment Concepts, Inc. III v. Maciejewski, 631 F.2d 497 (7th Cir. 1980), cert. denied, 450 U.S. 919, 67 L. Ed. 2d 346, 101 S. Ct. 1366 (1981), whether that party is a public or a private agency, Sharrock v. Harris, 489 F. Supp. 913 (S.D.N.Y. 1980).
Accordingly, we hold that there was no abuse of discretion in requiring Allegheny County, a publicly funded governmental instrumentality, to pay an attorney's fee to NLS, a publicly funded legal service organization. We now turn to the pivotal issue presented by the appeal, whether the district court sufficiently considered the extent to ...