Fross v. Cnty. of Allegheny

• Decision Date: 25 January 2012
• Docket Number: Civil Action No. 08–1405.
• Citation: 848 F.Supp.2d 547
• Parties: Charles FROSS, et al., Plaintiffs, v. COUNTY OF ALLEGHENY, Defendant.
• Court: U.S. District Court — Western District of Pennsylvania

848 F.Supp.2d 547

Charles FROSS, et al., Plaintiffs,

v.COUNTY OF ALLEGHENY, Defendant.

Civil Action No. 08–1405.

United States District Court, W.D. Pennsylvania.

Jan. 25, 2012.

E.J. Strassburger, Strassburger, McKenna, Gutnick & Gefsky, Donald Driscoll, Community Justice Project, Sara Rose, Witold J. Walczak, ACLF of PA, Pittsburgh, PA, for Plaintiffs.

Caroline Liebenguth, Allegheny County Law Department, Pittsburgh, PA, Craig E. Maravich, George M. Janocsko, Michael H. Wojcik, Allegheny County Law Department, Pittsburgh, PA, for Defendant.

MEMORANDUM

GARY L. LANCASTER, Chief Judge.

This is a civil rights action in which a group of convicted sex offenders challenged the enforceability of an Allegheny County Ordinance that restricted their residency, as well as that of all such offenders. On March 20, 2009, we issued an opinion finding that the Ordinance was void and unenforceable because it was preempted by state law. Fross v. County of Allegheny, 612 F.Supp.2d 651 (W.D.Pa.2009). The Court of Appeals for the Third Circuit has now affirmed that ruling and remanded the case for consideration of the issue of attorney's fees.

Plaintiffs have filed a Petition for Attorney's Fees in which they seek to recover those fees and costs incurred before this court, the Court of Appeals, and the Pennsylvania Supreme Court.¹ [doc. no. 39]. Plaintiffs ask for a total award of $329,119.96. For the reasons set forth below, we award plaintiffs $324,504.96.

I. BACKGROUND FACTS

By this action, plaintiffs, a group of individuals who had been convicted of sexual offenses and were required to register under Megan's Law, 42 Pa. Cons.Stat. § 9791 et seq., sought to invalidate an Allegheny County Ordinance that prevented them from living within 2,500 feet of any child care facility, community center, public park, recreation facility, or school. Allegheny County Ordinance No. 39–07–OR. Plaintiffs' complaint sought a declaratory judgment that the Ordinance violated various federal Constitutional rights pursuant to 42 U.S.C. § 1983, was contrary to the Fair Housing Act, 42 U.S.C. § 3601, et seq., was in reality a zoning law that violated the Municipalities Planning Code, 53 P.S. § 10602 and the Second Class County Code, 16 P.S. § 5220, and was preempted by the Pennsylvania Sentencing Code, 42 Pa. Cons.Stat. § 9701 et seq., including Megan's Law and the Pennsylvania Probation and Parole Board Law. [doc. no. 1]. Plaintiffs filed a motion for preliminary injunction immediately after commencing this case. [doc. no. 6].

After several conferences with counsel, the court consolidated plaintiffs' motion for a preliminary injunction with a decision on the merits, and directed both parties to file cross-motions for summary judgment on the dispositive state law issues. [doc. nos. 16, 18, 19]. In an opinion dated March 20, 2009, we held that the Ordinance was invalid and unenforceable because we predicted that the Pennsylvania Supreme Court would find that it was preempted by state law. Fross, 612 F.Supp.2d at 660. In that opinion, we explicitly stated that we had jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367(a) and were addressing them first in accordance with the “fundamental and longstanding principle of judicial restraint requir[ing] that courts avoid reaching constitutional questions in advance of the necessity of deciding them.” Id. at 653 n. 2.

The County promptly appealed our ruling, [doc. no. 34]; Fross v. County of Allegheny, No. 09–2036 (3d Cir.). After hearing oral argument, the Court of Appeals for the Third Circuit filed a petition with the Pennsylvania Supreme Court seeking to certify the following question of law to that court:

Is Allegheny County Ordinance No. 39–07–01 [sic] entitled “Residence Requirements; Registered Sex Offenders” preempted by Pennsylvania statutory law and the procedures of the Pennsylvania Board of Probation and Parole?

[doc. no. 36 at 15]. In its petition, the Court of Appeals stated that this case raised “... important and unresolved questions ...” regarding the legality of such residency restrictions, and was of “state-wide” and “substantial public” importance. [doc. no. 36 at 3–4, 11–12].

The Pennsylvania Supreme Court granted the petition. Following oral argument, that court answered the certified question in the affirmative, agreeing with the ruling this court made in March of 2009. Fross v. County of Allegheny, 20 A.3d 1193 (Pa.2011). In response, the Court of Appeals requested letter briefs addressing the effect that the Pennsylvania Supreme Court's ruling had on the appeal pending before it. Thereafter, the Court of Appeals entered judgment affirming our March 20, 2009 order and remanding the case for determination of the issue of attorney's fees and costs, both before this court and the Court of Appeals. [doc. nos. 37, 38, and 41]; see also, Fross v. County of Allegheny, 438 Fed.Appx. 99 (3d Cir.2011).

Plaintiffs now seek in this court an award of $328,212.50 in attorney's fees and $907.46 in costs, representing amounts incurred through the filing of their reply brief in support of the petition for attorney's fees. [doc. no. 45 at 22].

II. LEGAL AUTHORITYA. Awarding Attorney's Fees Under Section 1988—General Law

“Our legal system generally requires each party to bear his own litigation expenses, including attorney's fees, regardless whether he wins or loses.” Fox v. Vice, ––– U.S. ––––, 131 S.Ct. 2205, 2213, 180 L.Ed.2d 45 (2011). However, Congress has created an exception to that rule by authorizing district courts to engage in fee shifting in certain civil rights cases. 42 U.S.C. § 1988; Fox, 131 S.Ct. at 2213.Section 1988(b) states that where a party prevails in an action brought to enforce one of a specifically enumerated list of federal statutes, including section 1983, that party may recover a reasonable attorney's fee. 42 U.S.C. § 1988(b).

A reasonable fee is that which is sufficient to induce a capable attorney to undertake the representation of a meritorious civil rights case. Perdue v. Kenny A., ––– U.S. ––––, 130 S.Ct. 1662, 1672, 176 L.Ed.2d 494 (2010). As such, the purpose of section 1988(b) is to ensure “effective access to the judicial process” for persons whose civil rights have been violated, to reimburse plaintiff for the cost of vindicating his civil rights, and to hold the violator of federal law accountable. Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); Fox, 131 S.Ct. at 2213 (citations and quotations omitted).

The prevailing party bears the burden of establishing entitlement to an award of attorney's fees and of documenting the hours worked and the appropriate hourly rate. Hensley, 461 U.S. at 437, 103 S.Ct. 1933. The product of the number of hours worked multiplied by the hourly rate, called the lodestar amount, is the starting point in awarding attorney's fees. Hensley, 461 U.S. at 433, 103 S.Ct. 1933;Perdue, 130 S.Ct. at 1673.

The party requesting the fee award must document the number of hours worked “with sufficient specificity to allow the District Court to determine whether the hours claimed are unreasonable for the work performed.” Evans v. Port Authority of New York and New Jersey, 273 F.3d 346, 361 (3d Cir.2001) (citation omitted). The opposing party may challenge this factor in the lodestar calculation by clearly setting forth both the type of work being challenged and the grounds for contending that the hours are unreasonable. Interfaith Community Organization v. Honeywell Int'l, Inc., 426 F.3d 694, 713–14 (3d Cir.2005) (internal quotations and citations omitted).

The party requesting the fee award must also establish that the charged hourly rate is reasonable based on “the community billing rate charged by attorneys of equivalent skill and experience performing work of similar complexity.” Evans, 273 F.3d at 360–61 (citing Student Public Interest Research Group v. AT & T Bell Laboratories, 842 F.2d 1436, 1450 (3d Cir.1988)). An opposing party can contest the claimed hourly rate, but must do so with “appropriate record evidence.” Id. at 361. In the absence of such evidence, plaintiff must be awarded attorney's fees at the requested rate. Id.

Although the court can only act in response to a specific objection and cannot decrease a fee award based on factors not raised at all by the adverse party, the court nevertheless has a positive and affirmative duty to conduct a thorough and searching analysis to identify excessive, redundant, or otherwise unnecessary charges. Interfaith Community, 426 F.3d at 711, 713 (internal quotations and citations omitted); see also, McKenna v. City of Philadelphia, 582 F.3d 447, 459 (3d Cir.2009).

Once the proper lodestar amount has been calculated, the court must then consider other factors, such as the “results obtained” in fashioning an award of fees that is reasonable and appropriate. Hensley, 461 U.S. at 433–34, 103 S.Ct. 1933;Lima v. Newark Police Department, 658 F.3d 324, 333 (3d Cir.2011) (the degree of overall success goes to the reasonableness of the award, not to its availability). The court's decision, which is to be given “substantial deference” on appeal, “may take into account [its] overall sense of a suit,” but must still be based on record evidence. Fox, 131 S.Ct. at 2216.

Although this court must follow these standards and give careful consideration to any petition for an award of attorney's fees under section 1988(b), the Supreme Court has cautioned that a petition for attorney's fees “should not result in a second major litigation” and has advised that the goal in awarding fees “is to do rough justice, not to achieve auditing perfection.” Fox, 131 S.Ct. at 2216.

B. Awarding Attorney's Fees in Cases Asserting Both Fee Generating and Non–Fee Generating Claims

Although the language of and policy behind section 1988(b) is straightforward, “... litigation is messy, and courts must deal with this untidiness in awarding fees.” Fox, 131 S.Ct. at 2214. One...