Filomena Ward, et al v. Philadelphia Parking Authority, et al

Filing

NOT PRECEDENTIAL OPINION Coram: MCKEE, Chief Judge, JORDAN and VANASKIE, Circuit Judges. Total Pages: 13. Judge: Chief Judge MCKEE Authoring.

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
THIRD CIRCUIT
_____________
No. 15-1433
_____________
FILOMENA RANIERA WARD, MICHELLE McCANDLESS, GERMAN PARODI,
DAVID WITTIE, RANDY ALEXANDER, CAROL MARFISI, individually and on
behalf of similarly situated persons, DISABLED IN ACTION, a nonprofit corporation

v.
PHILADELPHIA PARKING AUTHORITY, and VINCE FENERTY, in his official
capacity as the Executive Director of the Philadelphia Parking Authority, and TAXICAB
AND LIMOUSINE DIVIDION of the PHILADELPHIA PARKING AUTHORITY, and,
JIM NEY, in his official capacity as the Director of the Taxicab and Limousine Division
of the Philadelphia Parking Authority,
Appellants
_____________
Appeal from the United States District Court for the Eastern District Of Pennsylvania
(District Court No. 2-11-cv-04692)
District Judge: Honorable Magistrate Judge Lynne A. Sitarski
_____________
Argued Nov. 3, 2015
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BEFORE: McKEE, Chief Judge, JORDAN, and VANASKIE, Circuit Judges.
(Filed: December 8, 2015)
Michael P. Meehan, Esq. [ARGUED]
Casey A. Coyle, Esq.
Eckert Seamans Cherin & Mellott
Two South 16th Street, 22nd Floor
Philadelphia, PA 19102

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Dennis G. Weldon, Jr., Esq.
Bryan L. Heulitt, Jr., Esq.
The Philadelphia Parking Authority
701 Market Street, Suite 5400
Philadelphia, PA 19106
Counsel for Appellant
Stephen F. Gold [ARGUED]
1709 Benjamin Franklin Parkway, 2nd Floor
Philadelphia, PA 19103
Julie Foster
Public Interest Law Center of Philadelphia
1709 Benjamin Franklin Parkway
United Way Building, 2nd Floor
Philadelphia, PA 19103
Counsel for Appellees
______________
OPINION*
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McKEE, Chief Judge.
Appellants Philadelphia Parking Authority, Vince Fenerty, and Jim Ney appeal the
district court’s order granting in part, and denying in part, appellees Filomena Ward,
Michelle McCandless, German Parodi, David Wittie, Randy Alexander, Carol Marfisi,
and Disabled in Action’s Motion for an Award of Attorneys’ Fees. We will affirm the
district court’s order in its entirety.

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
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I.
Because we write for the parties who are already familiar with the facts and
procedural history, we set forth only those facts necessary to our conclusion. The Parking
Authority appeals the district court’s award of attorneys’ fees, arguing that it is exempt
from the fee shifting provisions of the Americans with Disabilities Act (ADA) and
Rehabilitation Act and, accordingly, cannot be held liable for attorneys’ fees under those
statutes. The Authority further argues that even if those fee shifting provisions apply, the
plaintiffs are not prevailing parties and are therefore not entitled to attorneys’ fees.
Finally, the Authority contends that even if attorneys’ fees may otherwise be appropriate,
there are special circumstances here that render an award of fees unjust. The Parking
Authority does not contest the size of the fee award.
The district court’s January 20, 2015, order granting, in part, the plaintiffs’ Motion
for Attorneys’ Fees constitutes a final order. Accordingly, we have jurisdiction over the
appeal pursuant to 28 U.S.C. § 1291. The issue of attorneys’ fees presents a purely legal
question, and therefore our review is de novo.1 We do not disturb the district court’s
findings of fact unless they are clearly erroneous.2
II.
A.

1
2

See Truesdell v. Phila. Hous. Auth., 290 F.3d 159, 163 (3d Cir. 2002).
See Rode v. Dellarciprete, 892 F.2d 1177, 1182-83 (3d Cir. 1990).
3

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Parties are ordinarily responsible for their own attorneys’ fees.3 Thus, there is “a
general practice of not awarding fees to a prevailing party absent explicit statutory
authority.”4 Congress has, however, unambiguously authorized the award of attorneys’
fees to a “prevailing party” in any action commenced under certain statutes including the
ADA5 and the Rehabilitation Act.6
To obtain an award of attorneys’ fees under the ADA, a plaintiff must show she
has “prevailed.” The Supreme Court has given “generous formulation” to the term
“prevailing party” to reduce the financial burden on those seeking to vindicate important
public interests that might otherwise be without an advocate.7 Therefore, “plaintiffs may
be considered ‘prevailing parties’ for attorney’s fees purposes if they succeed on any
significant issue in litigation which achieves some of the benefit the parties sought in
bringing suit.”8 In Texas State Teachers Association v. Garland Independent School
District, the Supreme Court defined this standard as follows: “[T]o be considered a
prevailing party . . . the plaintiff must be able to point to a resolution of the dispute which
changes the legal relationship between itself and the defendant. . . . The touchstone of the
See Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247 (1975).
Key Tronic Corp. v. United States, 511 U.S. 809, 819 (1994).
5
42 U.S.C. § 12205 (“In any action or administrative proceeding commenced pursuant to
this chapter, the court or agency, in its discretion, may allow the prevailing party, other
than the United States, a reasonable attorney’s fee, including litigation expenses, and
costs, and the United States shall be liable for the foregoing the same as a private
individual.”).
6
29 U.S.C. § 794a(b) (“In any action or proceeding to enforce or charge a violation of a
provision of this subchapter, the court, in its discretion, may allow the prevailing party,
other than the United States, a reasonable attorney’s fee as part of the costs.”).
7
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
8
Id. (internal quotations omitted); see Truesdell v. Phila. Hous. Auth., 290 F.3d 159, 163
(3d Cir. 2002).
3
4

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prevailing party inquiry must be the material alteration of the legal relationship of the
parties . . . .”9 The Court has further determined that, to be considered prevailing, a
plaintiff “must obtain [either] an enforceable judgment against the defendant from whom
fees are sought, or comparable relief through a consent decree or settlement, . . . [and]
[w]hatever relief the plaintiff secures must directly benefit him at the time of the
judgment or settlement.”10
The Supreme Court has clarified that “[a]lthough a consent decree does not always
include an admission of liability by the defendant, it nonetheless is a court-ordered
‘chang[e] [in] the legal relationship between [the plaintiff] and the defendant.’”11 Thus,
where there is a consent decree, “[t]he fact that respondent prevailed through a settlement
rather than through litigation does not weaken [the respondent’s] claim to fees.”12 Courtordered consent decrees, therefore, can give rise to the necessary material alteration in the
legal relationship of the parties.13
Here, as the district court held, the plaintiffs prevailed. The Consent Decree
provided them with a significant portion of the relief they sought through their complaint.
Under the Consent Decree, the Parking Authority must issue all 150 medallions provided
for by Act 119 to wheelchair accessible vehicles. Prior to the Decree, the Parking

9

489 U.S. 782, 792-93 (1989) (emphasis added).
Farrar v. Hobby, 506 U.S. 103, 111 (1992) (internal citations omitted); see Truesdell,
290 F.3d at 163-64.
11
Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532
U.S. 598, 604 (2001) (alteration in original) (internal citation omitted) (quoting Garland,
489 U.S. at 792).
12
Maher v. Gagne, 448 U.S. 122, 129 (1980).
13
Buckhannon, 532 U.S. at 604; Truesdell, 290 F.3d at 164.
10

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Authority was only required to issue fifteen of those medallions to wheelchair accessible
vehicles. Based on the Consent Decree, the Parking Authority has already sold more than
15 of the 150 medallions to wheelchair accessible vehicles.14
The Consent Decree also requires the Parking Authority to post wheelchair
accessible taxicab notices at the Philadelphia International Airport and 30th Street train
station as well as advertise the service on its website. Wheelchair users can now request
wheelchair accessible taxicabs from a dedicated dispatcher. Finally, the Parking
Authority agreed to help further a policy whereby wheelchair accessible taxicabs are
moved to the front of the cab-stand line to serve patrons using a wheelchair.
This relief provides the plaintiffs with much of the principal benefit they sought
through their lawsuit: an increase in the number of wheelchair accessible taxicabs.
Although the plaintiffs have not received all of their requested relief, the Supreme
Court,15 as well as our own,16 has stated that complete satisfaction is not a prerequisite to
an award of attorneys’ fees. Even where a plaintiff “asked for a bundle and got a
pittance,” that “pittance is enough to render him a prevailing party.”17 The plaintiffs here
have secured much more than a pittance for the disabled community of Philadelphia.

14

WAV Medallion Sale Winning Bids, PHILA. PARKING AUTH., available at
www.philapark.org/taxis-limos.
15
Farrar v. Hobby, 506 U.S. 103, 120 (1992).
16
Institutionalized Juveniles v. Sec’y of Pub. Welfare, 758 F.2d 897, 912 (3d Cir. 1985)
(plaintiffs can be prevailing parties “even though the relief they obtained is not identical
to the relief they specifically demanded, as long as the relief obtained is of the same
general type”).
17
Farrar, 506 U.S. at 120.
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This Consent Decree also materially altered the legal relationship of the parties.
Court-ordered and judicially enforceable, the Consent Decree goes much further than Act
119. Furthermore, this material alteration—improved mobility for wheelchair boundcitizens—is exactly the type Congress sought to promote through the ADA and
Rehabilitation Act.18 The ADA seeks to provide individuals with disabilities “equality of
opportunity, full participation, [and] independent living.”19 By increasing the number of
wheelchair accessible taxicabs in Philadelphia as well as the ease with which they can be
called, the plaintiffs meaningfully improved the disabled community’s freedom of
movement and independence.
B.
The fee shifting provisions of the ADA and Rehabilitation Act apply to this matter
even though the district court never reached the merits of the plaintiffs’ claims under
these statutes. The Parking Authority contends that it does not owe attorneys’ fees
because it is not liable under the statutes giving rise to such fees, i.e., the ADA and
Rehabilitation Act. To support its contention of non-liability under these statutes, the
Parking Authority relies on the Second Circuit’s recent decision in Noel v. New York City
Taxi and Limousine Commission.20 In Noel, the Second Circuit held that the New York

See Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-93
(1989) (“The touchstone of the prevailing party inquiry must be the material alteration of
the legal relationship of the parties in a manner which Congress sought to promote in the
fee statute.”).
19
42 U.S.C. § 12101(a) (7).
20
687 F.3d 63 (2d Cir. 2012). The Parking Authority also relied on this case law to
support the same contention before the district court.
18

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City counterpart to the Philadelphia Parking Authority—the Taxi and Limousine
Commission—was not liable under Part A of Title II of the ADA.21
But the Parking Authority’s argument misses the point. Although the Second
Circuit’s decision may well have been persuasive if we had to reach the merits of the
plaintiffs’ ADA and Rehabilitation Act claims, this out-of-circuit case law neither
prohibits the plaintiffs from commencing their own suit under the ADA nor forecloses an
award of attorneys’ fees. Indeed, the Parking Authority’s argument ignores both the plain
language of the ADA and Rehabilitation Act’s fee shifting provisions as well as relevant
Supreme Court precedent. First, the statutory language of both laws explains that their fee
shifting provisions apply so long as the action was “commenced pursuant to” or “brought
to enforce or charge a violation” of the ADA or Rehabilitation Act, respectively.22
Moreover, the Supreme Court has repeatedly explained that plaintiffs need not
prevail on the merits of their claims under the fee shifting statute to recover attorneys’
fees.23 “Nothing . . . conditions the District Court’s power to award fees on full litigation
of the issues or on a judicial determination that the plaintiff’s rights have been
violated.”24
This Court has recognized that a plaintiff may obtain attorneys’ fees even when a
defendant provides the plaintiff relief the defendant is not legally obligated to offer. In

21

Id. at 74.
42 U.S.C. § 12205 (ADA); 29 U.S.C. § 794a(b) (Rehabilitation Act).
23
See Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532
U.S. 598, 604 (2001); Maher v. Gagne, 448 U.S. 122, 129 (1980).
24
Maher, 448 U.S. at 129.
22

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Disabled in Action of Pennsylvania v. Pierce,25 for instance, Disabled in Action sued the
U.S. Department of Housing and Urban Development to prevent the agency from moving
its office space into a handicap inaccessible building. The two parties eventually entered
into a settlement under which the government agreed to provide handicapped access at
the building’s main entrance. Disabled in Action then moved for attorneys’ fees. In
response, the government argued that no fee should be awarded because the settlement
agreement provided Disabled in Action with relief the organization was not “legally
entitled to obtain,”26 and therefore this relief was “gratuitous.”27 We rejected that
argument: “[T]he lawsuit caused the government to provide access for the handicapped at
the building’s main entrance and to make other services and facilities accessible to the
handicapped.”28
If we accepted the Parking Authority’s argument that the plaintiffs cannot recover
attorneys’ fees until they prove the defendant’s liability under the statute giving rise to
fee shifting, we would promote exactly the type of litigation the Supreme Court has
directed courts to avoid. The Supreme Court has stated “[a] request for attorney’s fees
should not result in a second major litigation.”29 Accordingly, the Court has instructed
courts to avoid interpretations of the fee shifting statutes that would “spawn a second

25

789 F.2d 1016 (3d Cir. 1986).
Id. at 1020.
27
Id.
28
Id.
29
Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); see Buckhannon Bd. & Care Home,
Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 609 (2001) (quoting
Hensley, 461 U.S. at 437).
26

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litigation of significant dimension.”30 The Parking Authority’s contention that it should
not have to pay attorneys’ fees until it is found liable under the ADA and Rehabilitation
Act invites a second major litigation that the Supreme Court warned against.
Accordingly, the Authority’s arguments run contrary to Supreme Court precedent. We
affirm the district court’s holding that the plaintiffs need not prove the defendants’
liability under the fee shifting statutes to recover attorneys’ fees.
Finally, leaving aside the language of the ADA and Rehabilitation Act as well as
the relevant Supreme Court precedent, we note that the Second Circuit’s ruling in Noel
does not preclude our Court from reaching a different conclusion on the merits of the
plaintiffs’ statutory claims. Had the district court reached the substance of the plaintiffs’
ADA and Rehabilitation Act claims, we would have addressed whether the Parking
Authority is liable under these statutes as a matter of first impression and possibly
reached a conclusion that was contrary to Noel. Indeed, The Philadelphia Parking
Authority may well be different from that of New York in ways important to the
plaintiffs’ suit. Therefore, the Second Circuit’s ruling in Noel does not “exempt” the
Parking Authority from liability under the ADA and Rehabilitation Act in this circuit or
others. This analysis, however, is irrelevant to the question of attorneys’ fees since a
plaintiff does not need to prove the defendant’s liability to recover such fees.
C.

Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791 (1989)); see
Buckhannon, 532 U.S. at 609 (quoting Garland, 489 U.S. at 791).
30

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In a final attempt to avoid paying attorneys’ fees, the Parking Authority argues
that even if the plaintiffs have prevailed, special circumstances counsel against an award
of fees. Under a fee shifting statute like the ADA, a “prevailing party” should ordinarily
recover its attorneys’ fees and costs absent “special circumstances.”31 Yet, a finding of
such special circumstances is very rare, and the Supreme Court has offered little guidance
as to what situations qualify.32 The Supreme Court has indicated that special
circumstances apply when “it is clear that the reasonable fee is no fee at all.”33 For
example, in Farrar v. Hobby,34 the Supreme Court found that where a plaintiff only
recovered one dollar in nominal damages, special circumstances counseled against an
award of fees.
The District Court was well within its discretion to conclude that no such
circumstances exist here. The Parking Authority also urges this court to take equitable
considerations into account, crediting its efforts to lobby the Pennsylvanian legislature for
wheelchair accessible taxicabs. To support this proposition, the Parking Authority cites a
long string of district court opinions. However, as the Parking Authority itself concedes,

31

Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 402 (1968) (per curiam); Morris v.
Nationalist Movement, 273 F.3d 527, 535 (3d Cir. 2001).
32
See Farrar v. Hobby, 506 U.S. 103, 118 (1992) (O’Connor, J., concurring) (“We have
explained that even the prevailing plaintiff may be denied fees if ‘special circumstances
would render [the] award unjust.’” (quoting Hensley v. Eckerhart, 461 U.S. 424, 429
(1983))).
33
Id. at 118 (O’Connor, J., concurring) (“After all, where the only reasonable fee is no
fee, an award of fees would be unjust; conversely, where a fee award would be unjust, the
reasonable fee is no fee at all.”).
34
506 U.S. 103 (1992).
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all of these district court opinions involve the Equal Access to Justice Act (EAJA),35
which directs courts to apply traditional equitable principles when ruling on motions for
attorneys’ fees.36 None of these decisions interpret the ADA or Rehabilitation Act.
The Parking Authority’s reliance on EAJA case law is misguided: the EAJA only
applies to claims against the United States.37 In fact, we have explicitly rejected the
application of EAJA standards to claims for attorneys’ fees under the ADA and
Rehabilitation Act. In Disabled in Action v. Pierce,38 the defendant attempted to borrow
an EAJA rule to argue that the plaintiff was not entitled to fees in a Rehabilitation Act
suit. We responded as follows: “[w]e decline the government’s invitation to rewrite
section 505(b) [of the Rehabilitation Act] by inserting in it the Equal Access to Justice
Act standard. Thus we find the government’s reliance on . . . an Equal Access to Justice
Act case[] to be misplaced.”39 We again decline the Parking Authority’s invitation to
import an EAJA standard into the ADA and Rehabilitation Act and instead affirm the
district court’s holding that no special circumstances exist here.

III.

35

28 U.S.C. § 2412 et seq.
See 28 U.S.C. § 2412(d); Burt v. Asche, No. 08-1427, 2011 WL 1325607, at *4 (E.D.
Pa. Apr. 7, 2011) (quoting United States v. 27.09 Acres of Land, 43 F.3d 769, 772 (2d
Cir. 1994) (quoting Oguachuba v. I.N.S., 706 F.2d 93, 98 (2d Cir.1983))).
37
28 U.S.C. § 2412(b).
38
789 F.2d 1016, 1020 (3d Cir. 1986).
39
Id.
36

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In sum, we find that the plaintiffs have prevailed, they need not prove the Parking
Authority’s liability under the fee shifting statutes, and no special circumstances counsel
against an award of fees in this case. We will therefore affirm the district court’s opinion
in its entirety.

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