LEAGUE OF WOMEN VOTERS OF PENNSYLVANIA et al v. THE COMMONWEALTH OF PENNSYLVANIA et al

Filing 28

MEMORANDUM AND ORDER THAT PLAINTIFFS' MOTION FOR COUNSEL FEES AND COSTS IS GRANTED; ETC.. SIGNED BY HONORABLE MICHAEL M. BAYLSON ON 4/13/18. 4/13/18 ENTERED AND E-MAILED, MAILED.(jl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
LEAGUE OF WOMEN VOTERS OF
PENNSYLVANIA, et al.

CIVIL ACTION
NO. 17-5137

v.
THE COMMONWEALTH OF
PENNSYLVANIA, et al.

MEMORANDUM
Baylson, J.

April 13, 2018

I. Introduction
Plaintiffs League of Women Voters, et al. seek attorney’s fees in the amount of $49,616.50
and costs in the amount of $3,120.02 for Defendant Senator Joseph Scarnati’s allegedly improper
removal of this case to this Court in a challenge to Pennsylvania’s congressional map.
This Court must therefore decide whether Plaintiffs may recover fees and costs related to
the removal of this case to federal court, whether the work expended was reasonable (and at what
rates), and who, ultimately, should be liable.
II. Brief History of this Litigation
A short chronology of events is appropriate to set the background for the disposition of this
issue. This case was filed in the Commonwealth Court of Pennsylvania on June 15, 2017,
asserting claims brought exclusively under the Pennsylvania Constitution that Congressional
districts in Pennsylvania were improperly “gerrymandered” to favor election of Republican
congressmen.
After the case was filed, a judge of the Commonwealth Court entered a stay of proceedings
on October 16, 2017. The Pennsylvania Supreme Court, acting on a special writ, vacated the stay

on November 9, 2017 and remanded the matter to the Commonwealth Court for a judge of that
court to conduct an evidentiary hearing and make findings of fact by December 31, 2017.
On October 23, 2017, Governor Wolf issued a writ of election to set the date of a special
election to fill the then-vacant congressional seat for the Eighteenth District. That writ of election
set the date for the special election for March 13, 2018.
On November 14, 2017, Senator Scarnati removed the Commonwealth Court case to this
Court. Senator Scarnati sought removal under 28 U.S.C. § 1441, and asserted that the removal
was timely under 28 U.S.C. § 1446(b)(3) because it was filed within 30 days of receipt of “an
amended pleading, motion, order or other paper” making the case removable. (Removal Pet. ¶¶
20-22, ECF 1.) Specifically, Senator Scarnati argued that the writ of election, which he claimed
was issued by Governor Wolf pursuant to authority conferred by Article I, Section 2, Clause 4 of
the U.S. Constitution, was an “order or other paper” “introduc[ing] a new, central federal question
squarely into this matter,” such that this court possessed federal question jurisdiction. (Id.)
The case was assigned to me as a “related” case to Agre v. Wolf, Civil Action No. 17-4392,
a gerrymandering case pending before a three judge court pursuant to 28 U.S.C. § 2284(a).
Motions to Remand were filed on November 16, 2017 by Plaintiffs and by Defendant Lieutenant
Governor Stack (who had not consented to removal), asserting that the removal was improper, and
seeking remand to the Pennsylvania Supreme Court. (Pls.’ Mot. to Remand, ECF 2; Stack Mot.
to Remand, ECF 5.) That same day, after this Court had scheduled a hearing for 2:00 PM that
afternoon, Senator Scarnati filed an “Emergency Motion to Withdraw Notice of Removal” at 1:30
PM seeking remand on the grounds that House Speaker Turzai did not consent to removal. (ECF
9.)
2

This Court held the hearing as scheduled at 2:00 PM on November 16, 2017, which some
of Plaintiffs’ counsel had traveled from Washington, DC to attend. Thereafter, the Court entered
an order remanding the case to the Pennsylvania Supreme Court with prejudice. (Remand Order,
ECF 15.)
At 5:23 PM on November 16, 2017, after the Court entered its order remanding the case,
Speaker Turzai docketed a response to the removal motion, to which was attached an e-mail from
his counsel to Senator Scarnati’s counsel, stating that counsel had not discussed removal under 28
U.S.C. § 1441, but rather under 28 U.S.C. § 1443, which does include a requirement that all
defendants consent to removal. (See ECF 21, Def. Turzai’s Resp. to Mot. to Withdraw Notice of
Removal.)
On November 30, 2017, Plaintiffs filed the instant motion requesting a total of $52,736.52
in fees and costs associated with the removal. (ECF 24.) Senator Scarnati filed a memorandum
of law in opposition on December 14, 2017. (ECF 26.) Plaintiffs replied on December 21, 2017.
(ECF 27.)
III.

Summary of Parties’ Arguments
Plaintiffs assert that Senator Scarnati’s removal was improper for several reasons and that

they are entitled to fees and costs, which Senator Scarnati disputes. It is undisputed that Senator
Scarnati removed the state court action pursuant to 28 U.S.C. § 1441, the general statute allowing
removal of actions to federal court.
Plaintiffs argue that the removal was procedurally improper under 28 U.S.C. § 1446, which
sets a number of procedural requirements for removal, including actions removed under 28 U.S.C.
§ 1441. (Pls.’ Mot. for Fees at 7-14, ECF 24.) Plaintiffs assert that Senator Scarnati did not
obtain the consent of all defendants including the “Executive Defendants” (Governor Wolf and
3

others in the Executive Branch of the Pennsylvania state government) as required by 28 U.S.C. §
1446(b)(2)(A); and the removal was untimely under 28 U.S.C. § 1446(b)(2)(B). As a result,
Plaintiffs assert, they are entitled to attorney’s fees and costs under 28 U.S.C. § 1447(c), which
allows district courts to award costs and fees associated with an improper removal.

(Id.)

Plaintiffs also assert Senator Scarnati’s assertion of federal jurisdiction was frivolous, and that
sanctions are warranted under Rule 11 and the Court’s “inherent authority.” (Id. at 18-20.)
Senator Scarnati responds that he initially had consent from Speaker Turzai to remove to
federal court and it was not necessary to obtain the consent of the executive defendants because
they were merely “nominal” defendants; the removal was timely; and he raised at least a colorable
theory of federal jurisdiction. (Scarnati Opp. to Pls.’ Fee Mot. at 4-15, ECF 25.)
Defendants also make a number of arguments to minimize their financial liability, if any:
•

Plaintiffs should not be allowed to collect fees for the preparation of their fee
motion (“fees on fees”)

•

Plaintiffs’ counsel based in Washington, D.C. should be reimbursed at lower rates
prevailing in Philadelphia

•

Plaintiffs should not be allowed to charge for the costs of their Westlaw research

•

The Court should not hold Senator Scarnati (in his personal capacity) and his
lawyer jointly and severally liable

(Id. at 16-27.)
Plaintiffs dispute that Senator Scarnati has any favorable case law support for any of the
propositions he advances, and reply that the hours expended were justified by the exigent nature of
the pending removal.

Plaintiffs further assert that their Washington-based counsel, despite

working pro bono, should be compensated at their usual rate because it would have been
impossible to engage other counsel on such short notice, and urge this Court to follow Baldus v.
4

Members of Wisconsin Gov’t Accountability Bd., 843 F. Supp. 2d 955 (E.D. Wis. 2012), a
redistricting challenge in which a court held counsel for legislative defendants and their law firm
jointly and severally liable for plaintiffs’ fees and costs in a discovery dispute.
IV. Analysis
28 U.S.C. § 1447 provides that “a[n] order remanding the case may require payment of just
costs and any actual expenses, including attorney fees, incurred as a result of the removal.” Id.
The Supreme Court recently clarified the standard for an award of attorney’s fees when granting
remand:
Absent unusual circumstances, courts may award attorney’s fees under § 1447(c)
only where the removing party lacked an objectively reasonable basis for seeking
removal. Conversely, when an objectively reasonable basis exists, fees should be
denied. In applying this rule, district courts retain discretion to consider whether
unusual circumstances warrant a departure from the rule in a given case. For
instance, a plaintiff’s delay in seeking remand or failure to disclose facts necessary
to determine jurisdiction may affect the decision to award attorney’s fees. When a
court exercises its discretion in this manner, however, its reasons for departing
from the general rule should be faithful to the purposes of awarding fees under §
1447(c).
Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005) (affirming denial of fees where the
plaintiff had waited fifteen months to file a remand motion and did not dispute the reasonableness
of the defendant’s removal arguments).
The Court finds that the “unusual circumstances” identified in Martin existed in this case,
but will address the parties’ arguments regarding jurisdiction.
A.

Whether an objectively reasonable basis for removal existed

In the present fee petition, the parties dispute whether federal jurisdiction existed in this
case, which asserted only questions of state law. Senator Scarnati asserts that federal jurisdiction
was proper under Grable & Sons Metal Prod., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308 (2005)
5

and Gunn v. Minton, 568 U.S. 251, 258 (2013), which Plaintiffs dispute. Gunn established that
“federal jurisdiction over a state law claim will lie if a federal issue is: (1) necessarily raised, (2)
actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting
the federal-state balance approved by Congress.” 568 U.S. at 258. In its opposition to the fee
motion, Senator Scarnati identified the federal question as, “Does a writ issued under Article I,
Section 2, Clause 4 of the United States Constitution preclude review of a federal congressional
map under state law until the special election set by the writ is completed and the congressional
seat filled?” (Scarnati Opp. to Pls.’ Fee Mot. at 13, ECF 26.)
Plaintiffs assert that the Grable and Gunn factors were not met, and the removal was a
transparent attempt to interrupt ongoing state court proceedings in which the state courts would
have been interpreting their own state’s law. (Pls.’ Reply at 12-13, ECF 27.).
1. Consent to Removal
Senator Scarnati’s removal stated that Senator Scarnati and Speaker Turzai had consented
to removal, that consent from the Pennsylvania General Assembly would soon be forthcoming,
and that the consent of the executive branch defendants was not required because they were
“nominal parties against whom no real relief was sought.” (Removal ¶¶ 26- 27, ECF 1.) The
Notice of Removal cited only case law from other jurisdictions, as discussed further below.
Numerous provisions of federal law govern removal to federal court. The most general of
these is 28 U.S.C. § 1441, which provides in subsection (a) that “[e]xcept as otherwise expressly
provided by Act of Congress, any civil action brought in a State court of which the district courts
of the United States have original jurisdiction, may be removed by the defendant or the defendants,
to the district court of the United States for the district and division embracing the place where
6

such action is pending.” 28 U.S.C. § 1441(a). A number of more specialized subsections
governing removals follow, including 28 U.S.C. § 1443, which allows civil rights actions pending
in state court to be removed in certain circumstances. 28 U.S.C. § 1446, “Procedure for removal
of civil actions,” requires that “[w]hen a civil action is removed solely under section 1441(a), all
defendants who have been properly joined and served must join in or consent to the removal of the
action.”

28 U.S.C. § 1446(b)(2)(A) (emphasis added).

Section 1446(b)(3) provides that

non-diversity cases, “if the case stated by the initial pleading is not removable, a notice of removal
may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy
of an amended pleading, motion, order or other paper from which it may first be ascertained that
the case is one which is or has become removable.” 28 U.S.C. § 1446 (b)(3).
In his opposition to the fee motion, Senator Scarnati expanded on his earlier assertion that
the executive branch defendants were “nominal” parties who did not need to consent to removal,
and for the first time cited Third Circuit precedent in support of that argument. In Johnson v.
SmithKline Beecham Corp., 724 F.3d 337 (3d Cir. 2013), relied upon by Senator Scarnati, the
Third Circuit stated in a footnote that “[a]lthough removal generally requires ‘unanimity among
the defendants,’ that requirement does not extend to nominal parties.” Id. at 359 n.27. Johnson
was a diversity personal injury action in which one of the plaintiffs was a Pennsylvania citizen.
Id. at 340. The Third Circuit held that a “dissolved corporation” named as a defendant was a
“nominal party with no interest in the litigation,” and accordingly ignored its citizenship. Id. at
358. In the other Third Circuit case cited by Senator Scarnati, Bumberger v. Ins. Co. of N. Am.,
952 F.2d 764 (3d Cir. 1991), also a diversity personal injury action, the Third Circuit vacated the
district court’s grant of partial summary judgment and its conclusion that the insurer of a company
7

involved in an auto accident was a nominal party, and remanded for further findings. These cases
are hardly comparable to the status of the executive branch defendants, and do not establish that
the executive defendants were nominal parties. The cases from other jurisdictions Senator
Scarnati cites are of no greater help. See Thorn v. Amalgamated Transit Union, 305 F.3d 826,
833 (8th Cir. 2002) (international union that did not discipline its local affiliate); S.E.C. v. Cherif,
933 F.2d 403, 414-16 (7th Cir. 1991) (record was unclear in district court as to whether the account
holder for the lead defendant in an SEC civil enforcement action was a nominal defendant); Busby
v. Capital One, N.A., 932 F. Supp. 2d 114, 130 (D.D.C. 2013) (recorder of deeds found to be a
nominal party where she was named as a defendant “only insofar as she…received and recorded”
allegedly fraudulent documents).
Whether or not the dispute with Speaker Turzai regarding consent to removal was a simple
misunderstanding, Senator Scarnati fails to support his claim that the executive branch defendants
were “nominal” parties. Such a position belies the emphasis throughout the removal process of
the Governor’s role in issuing the writ of election in the Eighteenth Congressional District that
Senator Scarnati claimed made the removal timely. Plaintiffs also point to representations by
Senator Scarnati in state court proceedings in this very action disputing that the governor was an
“indispensable party”:
Governor Wolf offers two related, but flawed, arguments in support of his request
to be dismissed from this suit. First, he claims that because the relief sought can be
ordered against the government Respondents, he is not an indispensable party who
must be named. In support of this claim he cites cases in which plaintiffs sought to
invalidate legislation where there was: (i) no requirement that the legislation be
redrafted; and (ii) no request—as there is here—to enact a new law in its place.
Other than that, he makes virtually no argument as to why he is not an
indispensable party. In actuality, the Governor is indispensable to this Petition,
because the nature of the claim and relief sought here require his direct
participation. Most importantly, the remedy sought in this case (i.e. passage of a
8

new redistricting law) legally mandates that the Governor sign any new law.
(State Court Ans. to Gov.s’ Prelim. Obj. at 2, ECF 2-2) (emphasis added.) Senator Scarnati’s
position that the executive defendants were indispensable for purposes of state law, and nominal,
but not indispensable for purposes of federal law, is blatantly inconsistent. As discussed above,
Senator Scarnati cites no factually similar Third Circuit precedent even suggesting that the
executive defendants are nominal. Senator Scarnati also ignores the holding of the Third Circuit
that when district courts consider remand, “nominal or fraudulently joined parties may be
disregarded,” but “indispensable parties may not.” Steel Valley Auth. v. Union Switch & Signal
Div., 809 F.2d 1006, 1010 (3d Cir. 1987). As Plaintiffs note, this Court has defined a nominal
party to litigation “as one neither necessary nor indispensable to the suit. A party is necessary and
indispensable to the suit if the plaintiff states a cause of action against the party, and seeks relief
from the party.” Dietz v. Avco Corp., 168 F. Supp. 3d 747, 759 (E.D. Pa. 2016) (citation
omitted). Plaintiffs’ state court complaint plainly names the executive defendants as defendants
and requests relief from them in the form of not proceeding with Congressional elections under the
2011 map. (State Court Compl. at 50, ECF 1-3.)
2. Timeliness of the Removal
Moreover, federal jurisdiction did not exist because the removal was untimely. Where an
action is not initially removable, a defendant may remove “within 30 days after receipt by the
defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other
paper from which it may first be ascertained that the case is one which is or has become
removable.” 28 U.S.C. § 1446(b)(3) (emphasis added). The state court complaint, filed June 15,
2017, had long since been ongoing by the time of the removal, but Senator Scarnati nonetheless
9

asserted that the Writ of Election issued by Governor Wolf on October 23, 2017 was an “order or
other paper” making removal on November 14, 2017 timely. (Notice of Removal, ECF 1 at 5.)
Under existing case law, it was not, and no objectively reasonable basis for jurisdiction therefore
existed.
A.S. ex rel. Miller v. SmithKline Beecham Corp., 769 F.3d 204 (3d Cir. 2014), is the lead
case in this Circuit on the timeliness of removals made under 28 U.S.C. § 1446(b)(3). In Miller,
the plaintiff, a Pennsylvania resident, had tried unsuccessfully early on in the litigation to remove
to federal court, but the action was remanded on the basis of lack of diversity. Id. at 207. The
plaintiff tried again to remove on the basis of diversity of citizenship shortly after the Third Circuit
issued a decision in a different case holding SmithKline Beecham to be a citizen of
Delaware—which came down nearly a year and a half after filing the Miller lawsuit in state court.
Id. Although the plaintiffs sought removal within 30 days of the issuance of the previous
appellate decision, the Third Circuit found Miller’s removal untimely. The panel held that the
“amended pleading, motion, order or other paper” language in 28 U.S.C. § 1446(b)(3) “only
‘address[ed] developments within a case,’ and, therefore, court decisions in different cases d[id]
not count as an ‘order.’” Miller, 769 F.3d at 210 (quoting Dahl v. R.J. Reynolds Tobacco Co.,
478 F.3d 965, 969 (8th Cir. 2007)). See also Green v. R.J. Reynolds Tobacco Co., 274 F.3d 263,
266 (5th Cir. 2001) (collecting cases).
In Papp v. Fore-Kast Sales Co., 842 F.3d 805 (3d Cir. 2016), the Third Circuit stated in a
footnote that one of the parties “concede[d] that answers to deposition questions ‘can constitute
“other paper” for purposes of triggering the time for removal under 28 U.S.C. § 1446(b).’” Id. at
816 n.10.
10

Romulus v. CVS Pharmacy, Inc., 770 F.3d 67 (1st Cir. 2014), is also instructive.
Romulus relied on a treatise to support its holding that correspondence between the plaintiff and
the defendant concerning damages qualified as an “other paper”:
In general, “[t]he federal courts have given the reference to ‘other paper’ an
expansive construction and have included a wide array of documents within its
scope.” 14C Wright & Miller, Federal Practice and Procedure § 3731 (4th ed.). As
such,
[V]arious discovery documents such as deposition transcripts, answers to
interrogatories and requests for admissions, as well as amendments to ad damnum
clauses of complaints, and correspondence between the parties and their attorneys
or between the attorneys usually are accepted as “other papers,” receipt of which
can initiate a 30–day period of removability.
Id. (citations omitted).
Romulus, 770 F.3d at 78.
Thus, the general rule appears to be that courts are lenient about construing documents as
“other papers” within the context of specific litigation between parties, but much stricter about
removal when the party seeking a federal forum relies on a document outside that particular
dispute. See Miller, 769 F.3d at 210; 14C Wright & Miller, Federal Practice and Procedure §
3731 (4th ed.).
In considering the circumstances of this case, the Court will ignore the political
considerations that may have been motivating various parties. However, considering a “plain
vanilla” review, it is clear, as a matter of law, that legitimate grounds for removal did not exist
because the executive branch defendants were not “nominal” and also the removal was untimely.
In making this conclusion, the Court is not stating any opinion on whether there was
“colorable” federal jurisdiction precluding this Court from hearing this case based on language in
United States Constitution, Article I, Section 4, clause 1. Similarly, this Court will not come to
11

any conclusion that improper motive or bad faith is involved. Strategic choices about jurisdiction
are common in litigation. Gerrymandering, as a Constitutional issue, is a vast territory of legal
issues. The United States Supreme Court has yet to hand down any definitive holding on the
extent to which gerrymandering violates the United States Constitution, or the power of state
courts over Congressional elections.
B. Amount of Fees and Costs
The Court determines that Plaintiffs are entitled to an award of counsel fees and costs. It
is clear under established legal principles that Senator Scarnati did not have any reasonable basis to
remove this case to this Court.
As subsequent events have developed, the Supreme Court of Pennsylvania entered an
order, reversing the decision of Commonwealth Court Judge Brobson that the court did not have
the power to correct the allegedly gerrymandered Congressional districts. The Pennsylvania
Supreme Court, in several highly publicized decisions, ordered a new map drawn and when the
legislature did not do so, itself promulgated a new map which will be in effect for the 2018
Congressional elections in Pennsylvania.

League of Women Voters of Pennsylvania v.

Commonwealth, 175 A.3d 282, 284 (Pa. 2018) (order announcing forthcoming opinion of the
Pennsylvania Supreme Court); League of Women Voters v. Commonwealth, 178 A.3d 737 (Pa.
2018) (opinion invalidating 2011 congressional map); League of Women Voters v.
Commonwealth, No. 159 MM 2017, 2018 WL 936941, at *4 (Pa. Feb. 19, 2018) (adopting its own
plan). The United States Supreme Court rejected attempts to reverse these decisions of the
Pennsylvania Supreme Court. Turzai v. League of Women Voters of Pennsylvania, No. 17A909,
2018 WL 1372352, at *1 (U.S. Mar. 19, 2018).
12

1. Amount of Fees
In general, “a prevailing party’s attorneys should be compensated based on market rates in
the vicinage of the litigation. However, if a prevailing party can show that it required the
particular expertise of counsel from another vicinage, or that local counsel were unwilling to take
on the litigation, then it will be entitled to compensation based on prevailing rates in the
community in which its attorneys practice.” Interfaith Cmty. Org. v. Honeywell Int’l, Inc., 426
F.3d 694, 699 (3d Cir. 2005).
Plaintiffs argue that the Washington-based lawyers at Arnold & Porter Kaye Scholer
(“Arnold & Porter”) should be reimbursed at their normal Washington, DC rates, rather than lower
rates applicable in Philadelphia:
Plaintiffs’ counsel should be awarded fees at their standard billing rates under the
second exception to the “forum rate rule,” which applies “when local counsel are
unwilling to handle the case.” Interfaith Community Organization v. Honeywell
Intern., Inc., 426 F.3d 694, 705 (3d Cir. 2005) (citations omitted). Plaintiffs’
counsel learned of the removal mid-afternoon on Wednesday and filed the
emergency motion to remand within 12 hours. It is obvious that it would have been
impossible to secure the services of a local firm to research and brief the remand
motion within that time period, much less to do it pro bono, like Arnold & Porter.
Moreover, the immediate and extraordinary threat posed by the removal left
Plaintiffs’ counsel with no choice but to immediately respond with available
resources.
(Pls.’ Reply Br. at 4, ECF 27.)
This Court concludes that Plaintiffs are not entitled a calculation of fees on any basis other
than what is appropriate under the prevailing and customary Philadelphia legal fees. The Court
does not rely on any cases distinguishing between so-called “chief counsel” and so-called “local
counsel.” The two firms involved in representing the Plaintiffs from the start, Arnold & Porter
and the Public Interest Law Center (“PILCOP”), are both well-known and well-qualified to
represent the Plaintiffs in this case. Although the undersigned did not get to observe them in any
13

detail, the Court has had significant opportunity to become familiar with the outstanding work of
the Public Interest Law Center of Philadelphia. The PILCOP attorneys are renowned for taking
on difficult cases and achieving excellent results for their clients. 1 Thus, the Court rejects any
reliance on differences between so-called “chief counsel” and “local counsel.” Whether the work
was done by the Arnold & Porter firm or by PILCOP, or jointly, all of the written work in this case
in this Court, although very limited because of the eventual agreement by Senator Scarnati to
withdraw the removal, was excellent. A good deal of urgent research and preparation of the
motion to remand was necessary and deserves compensation.
The Court also agrees with Plaintiffs that this amounted to an “emergency situation.”
This case is one of tremendous public importance. The removal was filed just as the trial that had
been ordered by the Pennsylvania Supreme Court was about to start. Plaintiffs had good and
sufficient reasons for wanting this case to remain in the Pennsylvania state court system, and the
removal threatened the success of that jurisdictional strategy. 2
Although the Court has decided to award attorneys’ fees and will take into the account the
emergency nature of the situation, there was some perhaps unavoidable duplication of effort by the
Arnold & Porter and PILCOP lawyers. This is not a critical comment, but rather reflects the
urgency of reviewing the law and getting the remand papers filed. Given the understandable
urgency with which Plaintiffs’ attorneys worked, between the time that the removal was filed, and
it being withdrawn some hours later, as this Court was about to embark on a hearing on the
Plaintiffs’ petition for remand, the time expended and fees requested are probably more than in an

1

Two of my former law clerks have been attorneys at PILCOP, but are no longer working there.
The undersigned has recognized the historical background of gerrymandering and the judicial treatment of
gerrymandering in the United States Supreme Court and lower courts, in a dissenting opinion in Agre v. Wolf, 284 F.
Supp. 3d 591, 648-735 (E.D. Pa. 2018). An appeal in pending in the United States Supreme Court.
2

14

ordinary case. However, not every hour spent by numerous attorneys in two different locations,
working on an important matter, requires 100% compensation from an opposing party even though
the merits favor the Plaintiffs.
Counsel for Plaintiffs have submitted voluminous information about their normal hourly
rates. Considering the brief period of time that is at issue here, the Court will not engage in
complex arithmetic. The Court believes a fair result is to take the total number of hours spent by
all attorneys, 82 hours, reduce it by 20% to account for overlap, and apply a blended hourly rate,
$400 per hour, which appears to be a fair median hourly rate for the PILCOP lawyers. 3 The Court
believes that the resulting award of $26,240.00 is a fair measure of fees to be awarded in this case.
As for the claimed expenses, the Court will award all of the expenses which have been documented
by Plaintiffs’ counsel, including the Westlaw research costs, totaling $3,120.02.
a. Whether time to prepare the fee petition is itself compensable
The above calculation includes time spent preparing the fee petition. Plaintiffs cite a
number of district court cases outside this Circuit in which the court has awarded fees for litigating
a fee petition under 28 U.S.C. § 1447(c) have been found to be compensable. See, e.g., MFC
Twin Builders LLC v. Farjado, 2012 WL 3862399, at *8 (E.D. Cal. 2012); Yazdani v. Access
ATM, 474 F. Supp. 2d 134, 137-38 (D.D.C. 2007); Albion Pacific Property Resources, LLC v.
Seligman, 329 F. Supp. 2d 1163, 1175 (N.D. Cal. 2004). Neither this Court nor the Third Circuit
has squarely addressed whether time spent preparing § 1447(c) fee petitions is compensable.
However, it has allowed “fees on fees” in civil rights cases; without fees on fees, “the attorney’s
fee to which he or she is entitled by law is in fact diminished.”

3

Hernandez v. Kalinowski, 146

As a pro bono law firm, PILCOP has some, but not extensive, opportunities to calculate the appropriate hourly rate
which it would use for fee petitions such as this.

15

F.3d 196, 199 (3d Cir. 1998). The court continued with an example:
For example, assume a plaintiff succeeds on the merits of a civil rights claim and, in
doing so, incurs $10,000 in “direct and reasonable” costs and attorney’s fees. That
fee represents the attorney’s time expended. Further assume that the plaintiff's
attorney is forced to spend an additional $2000 in time to compel the defendant to
pay the $10,000 costs and fees owed. If the plaintiff is not allowed to recover the
“fees on fees,” the plaintiff would not receive the $2000 to pay the attorney. In the
case of an impecunious plaintiff, as most prisoners are, the end result would be that
the attorney would in fact receive a fee based on time that is less than that
authorized by law.
Id. Defendants try to distinguish this case as purely a civil rights case, but the mathematical point
holds: only if a court awards fees on fees can a party truly be made whole for the time and costs
incurred by their attorneys.
b. Westlaw
Plaintiffs, who request $2,185 in Westlaw fees, are correct that Westlaw fees are
compensable in Third Circuit. In 1980, the Third Circuit held that “[u]se of computer-aided legal
research such as LEXIS, or WESTLAW, or similar systems, is certainly reasonable, if not
essential, in contemporary legal practice.” Wehr v. Burroughs Corp., 619 F.2d 276, 285 (3d Cir.
1980). However, the court cautioned that “the amount of use must be reasonable in order to be
allowed.” Id. Plaintiffs assert in their opening brief that Westlaw fees are regularly passed on to
clients. (Pls.’ Br. at 18.)
Defendants are correct that it is entirely unclear from Plaintiffs’ documentation whether
the Westlaw fees were even incurred in connection with this litigation. (See Arnold & Porter
Kaye Scholer LLP Costs, ECF 24-3). Plaintiffs do not contest this in their reply brief. The
narrative for the largest single entry of Westlaw charges on November 15, 2017 (the day before
oral argument) by associate Sara Murphy is “Westlaw Computer Research by ROBINSON JOHN
16

MULTI-SEARCH TIME CLASS.” (Id.) No attorney named John Robinson appeared in this
case, and it is unclear who this is. However, this description of the Westlaw research appears
immediately below a lengthy description of the tasks undertaken by the various attorneys,
including the precise topics Ms. Murphy researched. The Court finds that the Westlaw research
was reasonable.
V. Who Should Be Responsible for Payment of These Fees and Costs
Under all the circumstances, the Court finds that Senator Scarnati should personally be
liable for these fees and costs. The Court has not located any federal law authority as to whether
Senator Scarnati may be reimbursed.
VI. Conclusion
For the reasons stated above, the Court will make an award of counsel fees and costs to
PILCOP. See attached order.

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