The opinion of the court was delivered by: Judge Caputo
Presently before the Court is the Petition for Attorneys' Fees and Costs of Plaintiffs Heather Buck and Jose Guadelupe Aria-Maravilla (Doc. 45). For the reasons set forth below, Plaintiffs' petition will be granted to the extent described in ths Memorandum.
In this case, counsel for Plaintiffs represented them at a preliminary injunction hearing regarding the refusal of Defendant Dorothy Stankovic, Register of Wills for Luzerne County, to issue Plaintiffs a marriage license on the grounds that Mr. AriasMaravilla could not prove his lawful presence in the United States. (Pl.s' Pet., Doc. 45 ¶1; Def.'s Response, Doc. 48 ¶1.) On May 1, 2007, this Court concluded that Plaintiffs demonstrated a reasonable probability of success on the merits of their argument that Defendant's policy violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment; that "Plaintiffs will suffer irreparable harm if preliminary relief is not granted;" that "the balance of the hardships tilts in favor of Plaintiffs;" and that "issuance of a preliminary injunction would serve the public interest." (Mem. & Order, May 1, 2007, Doc. 24, at 15-17.) As such, the Court issued a preliminary injunction enjoining Defendant and her agents "from requiring that Plaintiff Jose Guadelupe AriasMaravilla produce a visa or other proof of his lawful presence in the United States as a condition of obtaining a marriage license." (Id. at 18.)
Following that decision, the parties negotiated a Consent Order, which this Court entered on February 11, 2008. (Consent Order, Feb. 11, 2008, Doc. 42.) Noting the Court's findings and Defendant's compliance with the preliminary injunction, the Order provided (1) that Defendant Stankovic and her agents, employees, and successors in office "shall not require any applicant, as a condition of obtaining a marriage license, to produce a visa or other proof of lawful presence in the United States," (2) that the Order did not prohibit any person from offering, or Defendant from relying upon, such documentation, (3) that Defendant "shall publicize or post this policy in the same manner in which Defendant has publicized or posted her prior policy regarding identification for foreign nationals seeking marriage licenses," and (4) that "Defendant shall pay Plaintiffs damages in the amount of $10,000." (Id. at 1-2.) The Order also provided a forty-five (45) day time period for filing any application for attorneys fees and costs. (Id. at 2-3.) Plaintiffs timely filed the present Petition, in which they request attorneys' fees in the amount of one hundred twenty-four thousand, five hundred seventy-nine dollars ($124,579) and costs in the amount of one thousand, eight hundred fifteen dollars and fifty-nine cents ($1815.59). (Pls.' Pet., Doc. 45 ¶ 12.) This motion is fully briefed and ripe for disposition.
I. Appropriateness of Awarding Attorneys' Fees and Costs
In actions brought pursuant to 42 U.S.C. § 1983, district courts, in their discretion, "may allow the prevailing party . . . a reasonable attorney's fee as part of the costs." 42 U.S.C. § 1988(b). "The touchstone of the prevailing party inquiry" is "the material alteration of the legal relationship of the parties in a manner which Congress sought to promote in the fee statute." Sole v. Wyner, 127 S.Ct. 2188, 2194 (2007). A plaintiff is a prevailing party for attorney's fees purposes if she succeeds "on any significant issue in litigation which achieves some of the benefits the parties sought in bringing the suit." Farrar v. Hobby, 506 U.S. 103, 109 (1992). The Third Circuit Court of Appeals recently held that plaintiffs were prevailing parties for purposes of Section 1988 where:
(1) the trial court, based upon a finding of a likelihood of plaintiffs' success on the merits, entered a judicially enforceable order granting plaintiffs virtually all the relief they sought, . . .; (2) the defendant, after opposing interim relief, chose not to appeal from that order and remained subject to its restrictions for a period of over two years; and (3) the defendant ultimately avoided final resolution of the merits of plaintiffs' case by enacting new legislation giving plaintiffs virtually all of the relief sought in the complaint.
People Against Police Violence v. City of Pittsburgh, 520 F.3d 226, 233 (3d Cir. 2008). As the preliminary injunction in Plaintiff's case was never "reversed, dissolved, or otherwise undone by the final decision in the same case," Sole, 127 S.Ct. at 2195, Plaintiffs' position is comparable to that of the plaintiffs in People Against Police Violence. Furthermore, a party that achieves the relief it sought is a prevailing party even if that relief was obtained through a consent decree. Maher v. Gagne, 448 U.S. 122, 129-30 (1980). As Plaintiffs achieved substantial relief in this litigation, and as the preliminary injunction placed "a judicial imprimatur on plaintiffs' entitlement to substantially all the relief they sought," like in People Against Police Violence, Plaintiffs are prevailing parties within the meaning of Section 1988 and are entitled to a reasonable attorney's fee.
The initial estimate of the appropriate fee "is properly calculated by multiplying the number of hours reasonably expended on litigation times a reasonable hourly rate." Blum v. Stetson, 465 U.S. 886, 888 (1984). This amount is known as the "lodestar" figure, which is presumed to be the reasonable fee, but may require subsequent adjustment. Hahnemann Univ. Hosp. v. All Shore, Inc., 514 F.3d 300, 310 (3d Cir. 2008). Additionally, the Supreme Court has identified twelve (12) factors that should inform courts' determination of the amount of a reasonable fee. Those are:
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to the acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.
In calculating the reasonable rate, the Court looks to the prevailing market rates in the relevant community. Loughner v. Univ. of Pittsburgh, 260 F.3d 173, 180 (3d Cir. 2001). The Court should consider the experience and skill of the prevailing party's attorney, and compare the rates to those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation. Maldonado v. Houstoun, 256 F.3d 181, 184 (3d Cir. 2001). The prevailing party bears the burden of demonstrating that the requested hourly rates are reasonable. Id. However, where "the plaintiff has met his prima facie burden under the community market rate lodestar test, and the opposing party has not produced contradictory evidence, the district court may not exercise its discretion to adjust the requested rate downward." Ridley v. Costco Wholesale Corp., 217 Fed. App'x 130, 139 (3d Cir. 2007) (quoting Washington v. Phila. County Ct. Com. Pl., 89 F.3d 1031, 1036 (3d Cir. 1996)).
A. Relevant Legal Community
Plaintiffs argue that although this case was litigated in Scranton, Pennsylvania, the relevant community for determining a prevailing market rate is Philadelphia. (Pls.' Pet., Doc. 45 ¶ 45.) Generally, attorney's fees should be based on the rates prevailing in the judicial district that is the forum of litigation. Interfaith Cmty. Org. v. Honeywell Int'l Inc., 426 F.3d 694, 705 (3d Cir. 2005). There are, however, two (2) exceptions to this "forum rate" rule: (1) "[w]here local counsel are unwilling to handle a case" and (2) "where a case requires the 'special expertise of counsel from a distant district.'" Id. In these situations, "the 'relevant community' for determining a prevailing market rate is the forum in which the attorneys regularly practice, not the forum of the litigation." Id.
In Interfaith, the district of New Jersey was the forum of litigation, and the Third Circuit Court of Appeals held that the plaintiff had not established one of the two (2) exceptions to the forum rate rule: need for special expertise from a distant district. Id. at 706. "The record [was] devoid of any evidence that [plaintiff] conducted a significant search for counsel with the ability to handle this case," and only showed that plaintiff "contacted a very small number of attorneys as part of its efforts to retain counsel in a cognate case." 426 F.3d at 705. "Given that there are hundreds of firms in northern New Jersey [the forum district] that identify themselves as practicing environmental law, we do not think that such a search is adequate to justify concluding that [plaintiff] needed to turn to [the out-of-forum attorney] because no attorney in the region had the necessary expertise. . . . Indeed, we would have great difficulty in accepting that no attorney in northern New Jersey possessed the ability -- as opposed to the willingness -- to handle a case such as this." Id. at 706.
On the other hand, the Third Circuit Court of Appeals in Interfaith concluded that the district court did not err in finding the plaintiff met the second exception to the forum rate rule, local counsel's unwillingness to handle a case. Id. at 706. In making that determination, the district court had relied on the affidavit of Joseph Morris, the lead organizer for plaintiff Interfaith, wherein he recounted his unsuccessful efforts to find local counsel willing to represent plaintiff in a cognate case. Id. at 705-06. The affidavit stated that Morris had been turned down by at least five (5) attorneys in New Jersey and New York in that separate case and that his "general impressions" of the attorneys' reasons were the degree of political risk (as the governor of New Jersey would be a named defendant), too much intensive factual work, too unfamiliar legal terrain, and fear of absorbing the costs of the case. Id. at 706.
In affirming the district court's finding on unwillingness, though, the Court of Appeals stated that "what persuades us," was another affidavit, of Edward Lloyd, local counsel for plaintiff and the director of the Environmental Law Clinic at Rutgers School of Law. Id. at 707. This affidavit persuaded the Court of Appeals "insofar as it states that no attorney in northern New Jersey would have been willing to handle this case without an immediate advance of out of pocket costs which, in this case, foreseeably amounted to over one million dollars. In this respect, the Terris firm is a 'rare bird.'" Id. (emphasis added). That second affidavit also stated that at the time suit was initiated, Lloyd was not aware of any attorneys or firms in New Jersey with experience in plaintiffs-side environmental litigation; that although some solo practitioners had such experience, none were in position to handle litigation of such magnitude; and that in twenty-nine years of experience, only his clinic and the out-of-forum firm plaintiff chose had brought citizen suit cases in federal court on behalf of citizens without contemporaneous payment of fees and expenses. Id.
In the instant case, Plaintiffs support their need for out-of-forum counsel by arguing that this case "involved complex constitutional issues interwoven with federal immigration law;" "raised issues of first impression," and was "filed and litigated under extreme time pressure." (Pls.' Pet., Doc. 45 ¶ 47.) The litigation was time sensitive because of the set date, May 12, 2007, by which Plaintiff Aria-Maravilla had to leave the United States. (See Grogan Decl., Ex. 3 to Doc. 45.) Plaintiffs also cite the experience that some of their attorneys had gained in a recent case, Lozano v. City of Hazleton, 496 F. Supp. 2d 477 (M.D. Pa. 2007), which likewise concerned the intersection of constitutional issues and immigration law. (Pls.' Pet., Doc. 45 ¶¶ 46-52; Walczak Decl., Ex. 2 to Doc. 45.) In litigating Lozano, the American Civil Liberties Union ("ACLU") came to find that "the intense research and writing required to develop the claims and case theories required more time and expertise than the Scranton-area practitioners could provide." (Pls.' Pet., Doc. 45 ¶ 54.) This knowledge gained in Lozano informed the choice to employ non-forum counsel in this case. (See Walczak Decl., Ex. 2 to Doc. 45 ¶ 12.) According to one of Plaintiffs' attorneys, Legal Director for the ACLU of Pennsylvania Witold Walczak, [e]xcellent civil rights lawyers practice in the Middle District, [Barry H.] Dyller and [George R.] Barron being two of them. But the issues in the Lozano case -- like this one -- were novel and the relevant law esoteric, particularly the application of the Supremacy Clause and the highly specialized morass that is federal-immigration law. Prosecuting the case required attorneys with diverse expertise, including litigators experienced with complex trial practice before federal courts, civil rights practitioners, immigration-, constitutional- and municipal-law experts. I was unable to identify any lawyers in the Scranton area with expertise in Supremacy Clause litigation and the intersection of immigration and constitutional law. (Id. ¶ 10.) Attorney Walczak describes the expertise that out-of-forum attorneys, such as Omar Jadwat, Jennifer Chang, and Seth Kreimer, provided in this case and notes that on the recommendations of Kreimer and co-lead counsel Mary Catherine Roper, the team retained Attorneys John Grogan and Edward Diver, partners at "a small, highly specialized litigation firm in Philadelphia," not only because Plaintiffs needed attorneys with Grogan and Diver's expertise in constitutional litigation, but also because Plaintiffs needed experienced attorneys "who could immediately commit themselves to an intensive effort" and who were willing "to devote themselves to this case to the exclusion of virtually all other work through the preliminary injunction proceedings." (Id. ¶ 12.) Mr. Walczak, who states that he is familiar with many constitutional and immigration lawyers in Northeastern Pennsylvania, states "[i]t would simply not have been possible for [these local attorneys] to devote the time and effort or to bring together the many types of expertise needed, particularly under the tight deadlines of a case seeking preliminary injunctive relief." (Id. ¶ 15.)
Finally, in addition to expertise and time constraints, Attorney Walczak notes a third factor necessitating out-of-forum counsel: unpopularity of clients. "[F]rom the Lozano case I learned how difficult it is to find lawyers willing to work on a high-profile case involving undocumented immigrants -- which one of our clients was admitted to be. . . . In the Lozano litigation, several established firms declined to work on the case because of the controversial nature of the issues before we made contact with [the Philadelphia firm with which Walczak worked on Lozano]." Plaintiffs also note that the Defendant in this case retained a Philadelphia law firm to represent her. (Id. ¶ 51.)
With regard to the first exception, Plaintiffs have not provided more evidence of local counsel's inability to handle this case than the evidence -- upon which it was clear error for the district court to base its finding -- that plaintiffs provided in Interfaith. As such, Plaintiffs have not satisfied the first exception to the forum rate rule.
Regarding the second exception, Plaintiffs relate their experience in the Lozano litigation to explain the factual situation regarding the availability of local counsel that they faced at the outset of this case; however, they do not provide evidence that any firms actually refused to work on the instant case. Attorney Walczak did state that it would not have been possible for local attorneys to devote their energies to this case to the exclusion of virtually all other work -- as necessitated by the tight deadlines imposed by Mr. Aria-Maravilla's imminent departure. While not insensitive to the tight deadlines in this case, the Court finds this aspect of Walczak's affidavit less convincing of local counsel's unwillingness than was the affidavit which convinced the Third Circuit Court of Appeals in Interfaith. That affidavit, filed by a local attorney, stated that in twenty-nine (29) years of practicing environmental law in the forum district, the attorney knew of only two (2) firms which had brought citizen suit cases in federal courts without contemporaneous payment of fees and expenses, which in Interfaith could have been over one million dollars ($1,000,000). See 426 F.3d at 707. This led the Court of Appeals to conclude that the non-local firm which did undertake the case was "a 'rare bird.'" Id. Here, Plaintiffs have produced no such evidence; that is, no evidence that it is rare for plaintiffs attorneys in this district to undertake civil rights cases with strict deadlines knowing that they will only be paid, if at all, under a fee shifting statute.
Furthermore, Plaintiffs' arguments based on the controversial nature of Lozano causing "several established firms" in the Middle District of Pennsylvania to decline to work on that case do not necessarily apply to the case at hand. Although both cases involved undocumented immigrants and proof of citizenship requirements, the issues in Lozano arguably impacted more people, as the plaintiffs were more numerous, the defendant a municipality rather than an individual official, and the challenged policy an enacted ordinance rather than the less formal policy of one office. And it has not been established that the same level of controversy or unpopularity of clients would attend a case involving the employment and housing rights of a group of undocumented immigrants in a city whose population had recently "increased sharply" because of "a recent influx of immigrants," see Lozano, 496 F. Supp. 2d at 484, as would attend a case involving the right of two people to marry before one Plaintiff's voluntary departure from the United States.
In light of the foregoing, Plaintiffs have not satisfied the second exception to the forum rate rule. Therefore, attorneys' fees will be determined based on prevailing market rates in this district.
B. Reasonableness of Rates
Plaintiffs request the following hourly rates for their counsel:
(1) For Ms. Roper, co-lead counsel in this case, Plaintiffs request an hourly rate of three hundred fifty dollars ($350). (Doc. 45 ¶ 58.) Roper, of the ACLU of Pennsylvania, has practiced law since 1994 after completing a federal judicial clerkship. Her experience includes non-profit and private sector work, including three (3) years as a partner at the firm Drinker Biddle & Reath, LLP, in Philadelphia. (Roper Decl., Ex. 5 to Doc. 45.) In accordance with ACLU practice, she does not charge clients, but "[i]n all fee petitions and settlement negotiations" she bills her time "at $350 per hour." (Id.)
(2) For Mr. Grogan, co-lead counsel along with Attorney Roper, Plaintiffs request a rate of three hundred fifty dollars ($350), which Mr. Grogan indicates was his regular billing rate at the time he initiated this case. (Pls.' Pet., Doc. 45 ¶ 58.) Mr. Grogan, a partner at the firm Langer, Grogan, and Diver, P.C., with a regular practice in complex civil litigation and experience in litigation involving immigrants and civil rights, has been practicing since 1994. He has served as a law clerk in the Supreme Court of New Jersey, co-founded and directed a non-profit law firm, taught law, and worked in the private sector. (Grogan Decl., Ex. 3 to Doc. 45.)
(3) For Mr. Diver, also a partner at Langer, Grogan, and Diver, P.C., who graduated law school in 1999 and joined the firm in 2005 following federal district and appellate court clerkships and work in academia, Plaintiffs request a rate of three hundred dollars ($300), which Diver states was his normal billing rate at the time of the case. (Pls.' Pet., Doc. 45 ¶ 58, Diver Decl., Ex. 4 to Doc. 45.)
(4) For Mr. Jadwat, of the ACLU Foundation Immigrants' Rights Project ("ACLU IRP") based in New York, Plaintiffs request a rate of three hundred dollars ($300). (Pls.' Pet., Doc. 45 ¶ 58.) Attorney Jadwat has practiced law, including complex federal cases, with the ACLU IRP since 2002, after a one-year federal judicial clerkship. (Jadwat Decl., Ex. 6 to Doc. 45.) As an ACLU attorney, he does not charge clients, but indicates that the market rate for attorneys of his skill and experience in New York City is at least four hundred seventy-five dollars ($475) and that he is requesting the lower rate of three hundred dollars ($300) to avoid disputes in this Fee Petition. (Id.)
(5) For Ms. Chang, of the ACLU IRP in San Francisco, Plaintiffs request a rate of two hundred sixty dollars ($260). (Pls.' Pet., Doc. 45 ¶ 58.) Attorney Chang has practiced law, including complex federal cases, at the ACLU IRP since 2004, following a clerkship for a federal appellate judge. (Chang Dep., Ex. 7 to Doc. 45.) Attorney Chang indicates she has particular expertise in the rights of non-citizens under federal immigration statutes and regulations and under the constitution, as well as in the area of discrimination law. (Id.) While she does not charge her clients, she indicates that the market rate for attorneys of her skill and experience in San Francisco is at least three hundred twenty dollars ($320) per hour and that she is requesting the lower rate of two-hundred sixty dollars ($260) in the interest of avoiding disputes in this Fee Petition. (Id.)
(6) For Mr. Kreimer, a professor at the University of Pennsylvania Law School who has "taught, consulted and practiced in the fields of constitutional law and civil rights litigation for over 25 years," Plaintiffs request an hourly rate of three hundred eighty-five dollars ($385), which Attorney Kreimer indicates was his regular billing rate at the time he participated in the case. (Pls.' Pet., Doc. 45 ¶ 58, Kreimer Decl., Ex. 8 to Doc. 45.)
Finally, Plaintiffs indicate that Attorney Walczak provided consultation but that they are not seeking compensation for his time. (Grogan Decl., Ex. 3 to Doc. 45.) In support of these rates, Plaintiffs submitted the attorneys' own declarations and ...