League of Women Voters of Penn v. Commonwealth of Pennsylvania ( 2019 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 18-1838
____________
LEAGUE OF WOMEN VOTERS OF PENNSYLVANIA;
CARMEN FEBO SAN MIGUEL; JAMES SOLOMON;
JOHN GREINER; JOHN CAPOWSKI;
GRETCHEN BRANDT; THOMAS RENTSCHLER; MARY
ELIZABETH LAWN; LISA ISAACS; DON LANCASTER;
JORDI COMAS; ROBERT SMITH; WILLIAM MARX;
RICHARD MANTELL; PRISCILLA MCNULTY;
THOMAS ULRICH; ROBERT MCKINSTRY; MARK
LICHTY; LORRAINE PETROSKY
v.
THE COMMONWEALTH OF PENNSYLVANIA; THE
PENNSYLVANIA GENERAL ASSEMBLY; GOVERNOR
OF PENNSYLVANIA, in his capacity as governor of
Pennsylvania; MICHAEL J. STACK, III, in his capacity as
Lieutenant Governor of Pennsylvania and President of the
Pennsylvania Senate; MICHAEL C. TURZAI, in his capacity
as Speaker of the Pennsylvania House of Representatives;
JOSEPH B. SCARNATI, III, in his capacity as Pennsylvania
Senate President Pro Tempore; SECRETARY OF THE
COMMONWEALTH OF PENNSYLVANIA;
COMMISSIONER OF THE BUREAU OF COMMISSIONS,
ELECTIONS, AND LEGISLATION OF THE
PENNSYLVANIA DEPARTMENT OF STATE
Joseph B. Scarnati, III,
Appellant
_______________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Civil Action No. 2-17-cv-05137
(District Judge: Honorable Michael M. Baylson)
______________
Argued: November 7, 2018
Before: AMBRO, SCIRICA, and RENDELL,
Circuit Judges.
(Filed: April 24, 2019)
Matthew H. Haverstick [ARGUED]
Shohin H. Vance
Joshua J. Voss
Kleinbard
Three Logan Square
1717 Arch Street
5th Floor
Philadelphia, PA 19103
Counsel for Appellant
2
Sara M. D’Amico
Daniel F. Jacobson
R. Stanton Jones
John J. Robinson
Elisabeth S. Theodore [ARGUED]
Arnold & Porter Kaye Scholer
601 Massachusetts Avenue, N.W.
Washington, DC 20001
Benjamin D. Geffen
Mary M. McKenzie
Public Interest Law Center of Philadelphia
1709 Benjamin Franklin Parkway
United Way Building
2nd Floor
Philadelphia, PA 19103
Counsel for Appellees League of Women Voters of
Pennsylvania, Carmen Febo San Miguel, James Solomon,
John Greiner, John Capowski, Gretchen Brandt, Thomas
Rentschler, Mary Elizabeth Lawn, Lisa Isaacs, Don
Lancaster, Jordi Comas, Robert Smith, William Marx,
Richard Mantell, Priscilla McNulty, Thomas Ulrich, Robert
McKinstry, Mark Lichty, and Lorraine Petrosky
_________________
OPINION OF THE COURT
_________________
SCIRICA, Circuit Judge
3
In 2017, the League of Women Voters and a group of
Pennsylvania Democratic voters filed a state court lawsuit
challenging Pennsylvania’s 2011 congressional districting
map. The suit alleged the state’s Republican lawmakers drew
the congressional map to entrench Republican power in
Pennsylvania’s congressional delegation and disadvantage
Democratic voters. Plaintiffs contended the Republican
redistricting plan violated the Pennsylvania Constitution by
burdening and disfavoring Democratic voters’ rights to free
expression and association and by intentionally discriminating
against Democratic voters, disadvantaging their
representational rights.
This appeal, although arising from that litigation, does
not involve the substance of the underlying state constitutional
challenge. Rather, it involves a fee dispute stemming from a
brief period during which the suit was before a federal district
court. Some five months after the suit was filed in state court,
defendant State Senate President Pro Tempore Joseph
Scarnati—a Republican lawmaker who sponsored the 2011
redistricting plan—removed the matter to federal court,
contending federal jurisdiction existed because of a newly
scheduled congressional election. Following a burst of filings
and an emergency hearing, the federal District Court remanded
the matter to state court, where the suit continued and has since
concluded.1 Relying on 28 U.S.C. § 1447(c), the federal court
later directed Senator Scarnati personally to pay $29,360 to
plaintiffs for costs and fees incurred in the removal and remand
1
The Pennsylvania Supreme Court ultimately ruled in
plaintiffs’ favor, declaring that the 2011 redistricting plan
violated the Pennsylvania Constitution. League of Women
Voters of Pa. v. Commonwealth, 178 A.3d 737, 741 (Pa. 2018).
4
proceedings.
Senator Scarnati disputes whether he—a party to the
case only in his official capacity as President Pro Tempore of
the State Senate—should have been held personally liable for
the costs and fees award. Recognizing the Supreme Court’s
directive that courts carefully adhere to the distinction between
personal and official capacity suits, we will resolve this issue
in favor of Senator Scarnati. As to his other challenges to the
award, we conclude the District Court did not abuse its
discretion in holding the removal lacked an objectively
reasonable basis, nor in calculating the proper costs and fees to
be awarded. Accordingly, we will affirm those parts of the
Court’s order, reverse its order holding Senator Scarnati
personally liable, and remand for further proceedings.
I.
A.
As noted, on June 15, 2017, plaintiff-appellees—
eighteen Pennsylvania Democratic voters—filed a petition in
the Pennsylvania Commonwealth Court contending
Pennsylvania’s 2011 congressional districting plan was a
product of partisan gerrymandering that violated the
Pennsylvania Constitution.2 According to the petition, in 2011
Republican state lawmakers “dismantled Pennsylvania’s
existing congressional districts and stitched them back together
2
The League of Women Voters of Pennsylvania was also
a party in the state court action. The Commonwealth Court
dismissed the organization from the suit before it was removed
to federal court. See Joint Appendix (App.) 342.
5
with the goal of maximizing the political advantage of
Republican voters and minimizing the representational rights
of Democratic voters.” Joint Appendix (App.) 45. The suit
named as defendants various state officials, all “in their official
capacities as parties who would be responsible for
implementing the relief” sought. App. 56. These included
Governor Thomas Wolf; Secretary of the Commonwealth
Pedro Cortés; Bureau of Commissions, Election, and
Legislation Commissioner Jonathan Marks; Lieutenant
Governor Michael Stack; Speaker of the Pennsylvania House
of Representatives Michael Turzai; and Senate President Pro
Tempore Scarnati. The Commonwealth and the General
Assembly were also named as defendants.
Four months later, the Commonwealth Court stayed the
case on the motion of defendants Senator Scarnati,
Representative Turzai, and the General Assembly. Due to the
delay in the Commonwealth Court, plaintiffs asked the
Pennsylvania Supreme Court to assume extraordinary
jurisdiction to resolve the case before the 2018 congressional
elections. On November 9, the Pennsylvania Supreme Court
granted plaintiffs’ request because the “case involves issues of
immediate public importance.” App. 320. It vacated the stay
and ordered “expeditious[]” proceedings below, setting a year-
end deadline for the Commonwealth Court to conduct a trial.
Id. On November 13, the Commonwealth Court issued an
expedited scheduling order, with trial set for December 11,
2017.
B.
The day after the Commonwealth Court issued its
scheduling order, Senator Scarnati removed the case to the
6
United States District Court for the Eastern District of
Pennsylvania. See 28 U.S.C. § 1441(a). Although the
underlying petition included only state law claims, he
contended there was federal question jurisdiction because, on
October 23, 2017, Governor Wolf issued a Writ of Election to
set a special election for a newly vacant seat in Congress. See
U.S. Const. art. I, § 2, cl. 4 (“When vacancies happen in the
Representation from any State, the Executive Authority thereof
shall issue Writs of Election to fill such Vacancies.”). Senator
Scarnati maintained that because the Writ was issued under the
United States Constitution, it introduced a “substantial
question of federal law” into the case—whether a state court
could “strike down” a congressional district for which a special
election was already scheduled. App. 24. In the notice of
removal, Senator Scarnati averred that Representative Turzai
and the General Assembly had consented to removal, and
contended he did not need the consent of the other defendants
because of their “nominal” status. App. 25–26.
Plaintiffs learned of the removal the next day,
November 15, and within twenty-four hours filed an
emergency motion to remand to state court. The United States
District Court scheduled a hearing for that afternoon on
plaintiffs’ motion to remand. Right before the hearing, Senator
Scarnati filed his own emergency motion seeking remand to
state court. The motion explained that there was a
misunderstanding with Representative Turzai, who did not
actually consent to removal. The District Court held its
hearing—attended by plaintiffs’ counsel who traveled from
Washington, D.C.—and then granted Senator Scarnati’s
motion, remanding the case to state court.
C.
7
In accordance with the District Court’s remand order,
plaintiffs asked for, under 28 U.S.C. § 1447(c), “payment of
just costs and . . . attorney fees[] incurred as a result of the
removal.” They sought: (1) $49,616.50 in attorneys’ fees,
which covered 82 hours of work by 10 attorneys from the
Washington, D.C. office of Arnold & Porter Kaye Scholer and
the Public Interest Law Center of Philadelphia (PILCOP); and
(2) $3,120.02 in costs for travel and legal research expenses.
Those fees and costs had been incurred preparing the remand
motion, preparing for and attending the emergency hearing,
and preparing the costs motion itself. Plaintiffs also suggested
sanctions were warranted under Federal Rule of Civil
Procedure 11 or the Court’s inherent authority. Finally, they
contended “Senator Scarnati and his counsel . . . should be held
jointly and severally liable” for any award to “avoid placing
the burden for such fees and costs on Pennsylvania taxpayers.”
App. 400.
The District Court granted plaintiffs’ motion and
awarded costs and fees under § 1447(c). League of Women
Voters of Pa. v. Pennsylvania, No. 17-5137, 2018 WL
1787211, at *6 (E.D. Pa. Apr. 13, 2018). It held removal was
improper because Senator Scarnati had no basis for believing
that removal was timely or that he did not need the consent of
the executive branch defendants. Id. at *4–5. The Court did not
“stat[e] any opinion on whether there was ‘colorable’ federal
jurisdiction,” and did “not come to any conclusion that
improper motive or bad faith [was] involved.” Id. at *6.
Turning to the amount of the award, the Court found
that all written work by plaintiffs’ counsel was “excellent,” id.,
and that the removal action “amounted to an ‘emergency
situation,’” id. at *7, necessitating “[a] good deal of urgent
8
research and preparation,” id. at *6. It recognized that with
“numerous attorneys in two different locations” there was
“some perhaps unavoidable duplication of effort” by plaintiffs’
lawyers, and so reduced the hours by twenty percent. Id. at *7.
The Court determined it would only award fees at a prevailing
local rate in Philadelphia rather than the higher rates billed by
the Washington, D.C. lawyers, id. at *6, and applied a “blended
hourly rate” of $400 per hour, which it found was “a fair
median hourly rate for the PILCOP lawyers,” id. at *7. The
resulting fee award was $26,240, and the Court also awarded
the full $3,120.02 in costs. Id. Finally, and without explanation,
the Court found “Senator Scarnati should personally be liable
for these fees and costs.” Id. at *8. He appeals.3
II.
The primary issue on appeal is whether the District
Court erred in imposing personal liability on Senate President
3
The District Court had jurisdiction under 28 U.S.C. §
1441 to consider whether the matter was removable. After
remanding, the Court retained jurisdiction to award costs and
fees under 28 U.S.C. § 1447(c). See Mints v. Educ. Testing
Serv., 99 F.3d 1253, 1257–58 (3d Cir. 1996). We have
jurisdiction under 28 U.S.C. § 1291 to review the award.
“We review an award of attorneys’ fees under section
1447(c) for abuse of discretion.” Roxbury Condo. Ass’n v.
Anthony S. Cupo Agency, 316 F.3d 224, 226 (3d Cir. 2003). “A
district court abuses its discretion by basing its decision on ‘a
clearly erroneous finding of fact, an erroneous legal
conclusion, or an improper application of law to fact.’” Id.
(quoting LaSalle Nat’l Bank v. First Conn. Holding Grp., 287
F.3d 279, 288 (3d Cir. 2002)).
9
Pro Tempore Scarnati for the costs and fees award. He
challenges other aspects of the Court’s decision, contending
plaintiffs were not entitled to an award at all under § 1447(c),
and that the Court erred in calculating the amount owed. We
first address the predicate question of plaintiffs’ entitlement to
a § 1447(c) award. We next turn to the most contested issue on
appeal: the Court’s decision to impose the award on Senator
Scarnati in his personal, rather than official, capacity. Finally,
we assess whether the costs and fees awarded were
appropriate.
A.
To determine whether plaintiffs are entitled to costs and
fees as a result of the removal, we begin with a review of the
removal provisions relevant to this case. A defendant may
generally remove a civil action from state court if it is one over
“which the district courts of the United States have original
jurisdiction.” 28 U.S.C. § 1441(a). In addition to establishing
federal subject matter jurisdiction, a removing defendant must
comply with several statutory procedural requirements. See id.
§§ 1446, 1447. Two of those provisions are at issue here. First,
removal must occur within thirty days of the defendant’s
“receipt . . . of the initial pleading,” id. § 1446(b)(1), or within
thirty days of the defendant’s “receipt . . . 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,” id. § 1446(b)(3). Second, all defendants
must join in or consent to removal. Id. § 1446(b)(2). If the
removing defendant fails to comply with these procedural
requirements, “[a] motion to remand the case . . . must be made
within 30 days after the filing of the notice of removal.” Id. §
1447(c).
10
When a case is remanded to state court, the removing
defendant may be liable for expenses associated with the
unsuccessful removal: “An 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.
In Martin v. Franklin Capital Corp., the Supreme Court
announced the proper standard for awarding fees under §
1447(c): “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.”
546 U.S. 132, 141 (2005). The Court adopted that standard
instead of a narrower one under which fees could be awarded
only if the removing party’s position was “frivolous,
unreasonable, or without foundation.” Id. at 138. In holding
that the test should “turn on . . . reasonableness,” the Court
“recognize[d] the desire to deter removals sought for the
purpose of prolonging litigation and imposing costs on the
opposing party, while not undermining Congress’ basic
decision to afford defendants a right to remove as a general
matter, when the statutory criteria are satisfied.” Id. at 140–41.
Here, the District Court determined Senator Scarnati
had no objectively reasonable basis for contending the removal
statutory criteria were satisfied, as removal was both untimely
and lacked the consent of the executive branch defendants. It
awarded costs and fees on that basis.
Senator Scarnati did not remove the case within thirty
days after receipt of the initial pleading, see 28 U.S.C. §
1446(b)(1), yet contends his action was timely for another
reason. According to the Senator, the October 23, 2017 Writ of
Election was an “other paper,” id. § 1446(b)(3), that “caused
11
the state court matter to suddenly . . . pose a substantial federal
question,” resetting the thirty-day clock during which he could
remove, Appellant’s Br. 30. As the District Court described,
however, our precedent establishes that the terms “an amended
pleading, motion, order or other paper” in § 1446(b)(3) “only
address developments within a case,” not a document, such as
the writ here, which is separate and apart from the case. A.S. ex
rel. Miller v. SmithKline Beecham Corp., 769 F.3d 204, 210
(3d Cir. 2014) (hereinafter Miller) (citation and alteration
omitted); accord 14C Charles Alan Wright & Arthur R. Miller,
Federal Practice & Procedure § 3731 (4th ed. rev. 2018)
(documents not generated within the state litigation generally
are not recognized as “other papers” that can start a 30-day
removal period under § 1446(b)).
Senator Scarnati does not dispute this general rule and
concedes that the Writ of Election was not a development
within the case, but he contends an exception to the rule is
warranted. He relies primarily on Doe v. American Red Cross,
where we held that a Supreme Court decision that
unequivocally authorized the Red Cross to “remov[e] from
state to federal court . . . any state-law action it is defending”
qualified as an “order” under § 1446(b)(3), despite not being
“paper in the case.” 14 F.3d 196, 201–02 (3d Cir. 1993)
(citation omitted). Senator Scarnati maintains that our
recognition of an exception in Doe “has opened the door for
potential additional exceptions,” including in the “equally
unique circumstances here.” Appellant’s Br. 31.
But in Doe we emphasized that we were “construing
only the term ‘order’ as set forth in Section 1446(b)” and not
“the term ‘other paper.’” 14 F.3d at 202. We stressed that our
decision was “extremely confined” and “narrow.” Id.
12
Subsequently, in Miller, we rejected an attempt to expand Doe
where a later issued circuit court decision involved the same
defendant but “did not include the explicit authorization to
remove other pending cases.” 769 F.3d at 210. We underscored
that the Doe ruling was “narrow and meant to apply in ‘unique
circumstances.’” Id. at 211 (quoting Doe, 14 F.3d at 202–03).
The order in Doe “was not ‘simply . . . an order emanating from
an unrelated action’” but “was ‘an unequivocal order directed
to a party to the pending litigation, explicitly authorizing’”
removal. Id. at 210 (quoting Doe, 14 F.3d at 202) (alteration in
original). Our recognition of a “narrow” exception for direct
orders from a higher court that expressly authorize a defendant
to remove does not help Senator Scarnati here. Doe, 14 F.3d at
202.
Accordingly, we cannot say that the District Court
abused its discretion in concluding Senator Scarnati lacked an
objectively reasonable basis for contending the Writ of
Election was an “other paper” under § 1446(b)(3). The writ is
a procedural mechanism mandated by the federal Constitution;
its issuance was external to the parties’ state court litigation.
Under our precedents, only a “narrow” set of developments
that are not “within [the] case” may qualify as an “order” under
§ 1446(b)(3). Miller, 769 F.3d at 210. Though we reiterate that
a “colorable removal claim in an area of unsettled law” does
not merit a § 1447(c) award, Roxbury Condo. Ass’n v. Anthony
S. Cupo Agency, 316 F.3d 224, 228 (3d Cir. 2003), we see no
abuse of discretion here.4
4
As noted, the District Court also held removal was
improper for the additional and independent reason that
Senator Scarnati failed to obtain the consent of the executive
defendants. See 28 U.S.C. § 1446(b)(2)(A). The Court rejected
13
B.
Although we affirm the District Court’s order awarding
costs and fees under § 1447(c), we must also consider its
decision to hold Senate President Pro Tempore Scarnati
personally liable for the award in this official capacity suit.
Neither party has cited any case that addresses whether §
1447(c) allows a court to levy costs and fees on an official-
capacity defendant in his or her personal capacity.
his argument that the executive defendants were nominal
parties, noting he had earlier argued that Governor Wolf was
an “indispensable party” because the relief sought required the
Governor’s participation. League of Women Voters of Pa.,
2018 WL 1787211, at *4. See generally Johnson v. SmithKline
Beecham Corp., 724 F.3d 337, 359 n.27 (3d Cir. 2013) (noting
that removing defendants need not secure consent from
“nominal parties”). But whether a party can be “indispensable”
because of its ministerial role in effecting a judgment, but
nominal for removal purposes, is an unresolved question, with
courts offering indirect support to both sides. Compare, e.g.,
Steel Valley Auth. v. Union Switch & Signal Div., 809 F.2d
1006, 1010 (3d Cir. 1987) (stating “while nominal or
fraudulently joined parties may be disregarded [in considering
diversity jurisdiction], indispensable parties may not”), with
Lincoln Prop. Co. v. Roche, 546 U.S. 81, 92 (2005) (observing
that parties “joined only as designated performer of a
ministerial act” do not satisfy diversity requirements) (citing
Walden v. Skinner, 101 U.S. 577, 589 (1880)). Because we
conclude the District Court did not abuse its discretion when it
ruled that Senator Scarnati lacked an objectively reasonable
basis for thinking removal was timely, we need not resolve this
question today.
14
We find instructive the Supreme Court’s reasoning in a
similar context. In Kentucky v. Graham, the Supreme Court
considered “whether 42 U.S.C. § 1988”—the fee-shifting
provision for federal civil rights suits—“allows attorney’s fees
to be recovered from a governmental entity when a plaintiff
sues governmental employees only in their personal
capacities.” 473 U.S. 159, 161 (1985). The Court recognized
that § 1988—like § 1447(c)—“does not in so many words
define the parties who must bear” a costs and fees award. Id. at
164. Nonetheless, the Court found it “clear” that the “losing
party” bears cost and fee liability. Id. It explained that “[p]roper
application of this principle” in actions involving public
officials “requires careful adherence to the distinction between
personal- and official-capacity action suits.” Id. at 165. An
official-capacity suit is “to be treated as a suit against the entity
[of which the office is an agent]” and “is not a suit against the
official personally, for the real party in interest is the entity.”
Id. at 166 (citation omitted). Because of this distinction, “a suit
against a government official in his or her personal capacity
cannot lead to imposition of fee liability upon the
governmental entity,” id. at 167, which “is not even a party to
a personal-capacity lawsuit,” id. at 168. An officer in his
personal capacity is a different entity than that same officer in
his official capacity, and the officer is only party to a suit in the
capacity he is named. “That a plaintiff has prevailed against
one party does not entitle him to fees from another party, let
alone from a nonparty.” Id.; see also Hutto v. Finney, 437 U.S.
678, 699 n.32 (1978) (observing that to require an officer to
pay a fee award in an individual capacity is “manifestly unfair
when . . . the individual officers have no personal interest in
the conduct of the State’s litigation”).
15
We apply the same principles here. Section 1447(c)
does not expressly state who may be required to pay costs and
fees. But like the Court in Graham, we recognize that it applies
only to “losing part[ies]”—in removal cases, the defendant that
improperly removed the case. 473 U.S. at 164; cf. Martin, 546
U.S. at 141 (“[C]ourts may award attorney’s fees under §
1447(c) only where the removing party lacked an objectively
reasonable basis for seeking removal.”). It is undisputed that
Senator Scarnati was named a defendant in his official capacity
only, as the President Pro Tempore of the State Senate.
Accordingly, this “is not a suit against [him] personally, for the
real party in interest is the entity” he represents. Graham, 473
U.S. at 166; cf. Karcher v. May, 484 U.S. 72, 78 (1987) (“We
have repeatedly recognized that the real party in interest in
an official-capacity suit is the entity represented and not the
individual officeholder.”). Because this is an “an official-
capacity action,” plaintiffs are “entitled to look for relief, both
on the merits and for fees, to the governmental entity” only.
Graham, 473 U.S. at 171. Senator Scarnati in his personal
capacity—a nonparty to this action—cannot be made to pay.
Plaintiffs offer two arguments for why personal liability
is still appropriate, but neither is convincing. First, they rely on
the law of qualified immunity to contend Senator Scarnati’s
“objectively unreasonable conduct in this case merited the
imposition of personal liability.” Appellee’s Br. 45. This
argument fails because the qualified immunity doctrine applies
when an official is sued in his or her personal capacity—the
official is personally made a party to the suit. See Melo v.
Hafer, 912 F.2d 628, 636 (3d Cir. 1990) (“[Q]ualified
immunity . . . [is] a defense available only for governmental
officials when they are sued in their personal, and not in their
official, capacity.”). Here, Senator Scarnati was sued in his
16
official capacity only, and Graham counsels adherence to the
distinction between personal and official capacity actions.
Senator Scarnati is personally not a party to the suit, so a §
1447(c) award cannot be made against him in his personal
capacity.5
Plaintiffs also suggest fees can be awarded against
Senator Scarnati personally because he acted in bad faith. But
the District Court had the opportunity to make a bad faith
finding and explicitly did “not come to any conclusion that
improper motive or bad faith [was] involved.” League of
Women Voters of Pa., 2018 WL 1787211, at *6. Fee-shifting
on this basis is not warranted.
In sum, the District Court erred in awarding fees against
Senator Scarnati in his personal capacity. Named in the suit in
his official capacity as President Pro Tempore of the State
Senate, he was personally not a party in this action, and the
Court has no power under § 1447(c) to sanction a nonparty.
Because it neither found bad faith nor invoked any other source
of authority to impose sanctions on Senator Scarnati in his
personal capacity, we will not consider on appeal whether such
sanctions would be appropriate. Cf. Chambers v. NASCO, Inc.,
5
In addition, plaintiffs’ analogy fails because the
standard for imposing fees under § 1447(c) is not coextensive
with the standard for defeating qualified immunity. An official
is not entitled to qualified immunity if the official violates a
“clearly established” right; § 1447(c) fees are available if there
is no “objectively reasonable” basis for removal. As we have
explained, § 1447(c) does not require a showing that the
removal was “frivolous, unreasonable, or without foundation.”
Martin, 546 U.S. at 138.
17
501 U.S. 32, 40 n.5 (1991); Corder v. Howard Johnson & Co.,
53 F.3d 225, 232 (9th Cir. 1994). Accordingly, we will reverse
the part of the Court’s order directing Senator Scarnati to
personally pay to plaintiffs the costs and fees award, and
remand for further proceedings.
C.
Finally, we turn to Senator Scarnati’s remaining
argument that the Court erred in calculating the award. As
noted, plaintiffs sought $49,616.50 in attorneys’ fees and
$3,120.02 in costs incurred in the emergency response to
Senator Scarnati’s removal and in preparing the subsequent §
1447(c) fees and costs motion. The District Court did not abuse
its discretion in awarding $26,240 in fees and $3,120.02 in
costs.
In calculating the fee award, the Court properly applied
the lodestar method, multiplying a reasonable hourly billing
rate for the lawyers’ services by the reasonable number of
hours expended on the litigation. See In re AT & T Corp., 455
F.3d 160, 164 (3d Cir. 2006). As to billing rate, it agreed with
Senator Scarnati that counsel from Arnold & Porter Kaye
Scholer should not be reimbursed at the higher Washington,
D.C. rates, and instead looked to “customary Philadelphia legal
fees.” League of Women Voters of Pa., 2018 WL 1787211, at
*6; accord Interfaith Cmty. Org. v. Honeywell Int’l, Inc., 426
F.3d 694, 699 (3d Cir. 2005). We discern no error in the
District Court’s application of a blended hourly rate of $400—
a median rate for the Philadelphia-based Public Interest Law
Center lawyers—which Senator Scarnati acknowledges is a
“fair reflection of the prevailing market rates.” Appellant’s Br.
38; accord In re Rite Aid Corp. Sec. Litig., 396 F.3d 294, 306
18
(3d Cir. 2005) (“[D]istrict courts should apply blended billing
rates that approximate the fee structure of all the attorneys who
worked on the matter.”).
With respect to the time billed, the notice of removal
presented plaintiffs with an emergency situation and a range of
complex legal issues to address in a short period of time.
Consistent with the Pennsylvania Supreme Court’s recognition
of the import of the state court litigation, plaintiffs did not
respond inappropriately. The District Court’s decision to
award fees less a reduction to account for overlap was proper
in these circumstances. Accord Bell v. United Princeton
Props., Inc., 884 F.2d 713, 721 (3d Cir. 1989) (observing that
fee request reductions require “flexibility,” as “the court will
inevitably be required to engage in a fair amount of ‘judgment
calling’ based upon its experience with the case and its general
experience”).
Likewise, the District Court did not abuse its discretion
in awarding $2,185 in costs incurred by Arnold & Porter Kaye
Scholer for Westlaw legal research. Cf. Wehr v. Burroughs
Corp., 619 F.2d 276, 285 (3d Cir. 1980) (awarding research
fees and noting that “[u]se of computer-aided legal research . .
. is certainly reasonable, if not essential, in contemporary legal
practice”). It properly reviewed the supporting documentation
submitted by plaintiffs and explained why it determined the
costs sought for research were reasonable.
Accordingly, we will affirm the costs and fees awarded.
III.
In sum, we conclude the District Court did not abuse its
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discretion in determining plaintiffs were entitled to a costs and
fees award under § 1447(c) or in calculating the proper award.
But because it erred in imposing fees on Senator Scarnati in his
personal capacity, we will reverse that part of the order and
remand for further proceedings.
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