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Pittsburgh League of Young Voters Education Fund and v. Port Authority of Allegheny County and Anthony J. Hickton

February 24, 2012

PITTSBURGH LEAGUE OF YOUNG VOTERS EDUCATION FUND AND AMERICAN CIVIL LIBERTIES FOUNDATION OF PENNSYLVANIA, PLAINTIFFS,
v.
PORT AUTHORITY OF ALLEGHENY COUNTY AND ANTHONY J. HICKTON, DIRECTOR OF SALES, DEFENDANTS.



The opinion of the court was delivered by: McVerry, J.

MEMORANDUM OPINION AND ORDER

Pending before the Court is the PETITION FOR AWARD OF ATTORNEY'S FEES BY PITTSBURGH LEAGUE OF YOUNG VOTERS EDUCATION FUND AND AMERICAN CIVIL LIBERTIES FOUNDATION OF PENNSYLVANIA ("League and ACLU") (Document No. 130), with attached Declarations from counsel Jon Pushinsky, Sara J. Rose, and Witold J. Walczak (Document No. 130-1, 2, 3, 4). Defendant Port Authority of Allegheny County and Anthony J. Hickton (collectively "Port Authority") filed OBJECTIONS TO PETITION FOR AWARD OF ATTORNEY'S FEES, with attached Declaration from counsel Gregory J. Krock (Document No. 133), to which the League and ACLU filed a REPLY BRIEF (Document No. 136) with, inter alia, four (4) Declarations of attorneys practicing in Pittsburgh.

Port Authority also filed a MOTION TO STRIKE EXHIBITS TO REPLY TO DEFENDANTS' OBJECTIONS TO PETITION FOR ATTORNEYS' FEES (Document No. 137), to which the League and ACLU have responded (Document No. 138).

The Fee Petition and Motion to Strike have been fully briefed and are ripe for disposition.

Facts and Procedural History The parties and the Court are familiar with the extensive background of this litigation and such has been summarized in the opinions of the United States Court of Appeals for the Third Circuit and this Court. See Pittsburgh League of Young Voters Educ. Fund v. Port Auth. of Allegheny Cnty., 653 F.3d 290 F.3d 290 (3d Cir. 2011); Pittsburgh League of Young Voters Educ. Fund v. Port Auth. of Allegheny Cnty, No. 02:06-cv-1064, 2009 WL 2366455 (W.D. Pa. July 30, 2009). However, the following is a brief recitation of the procedural facts salient to the issues presently pending before the Court.

Plaintiffs, Pittsburgh League of Young Voters Education Fund ( the "League") and American Civil Liberties Foundation of Pennsylvania ("ACLU"), brought this lawsuit on August 10, 2006 by filing a complaint pursuant to 42 U.S. C. § 1983 in which they alleged that defendants, Port Authority of Allegheny County and Anthony J. Hickton, Director of Sales (collectively referred to as "Port Authority") violated their rights under the First and Fourteenth Amendments to the United States Constitution by refusing to accept and display their proposed ex-offender voter-education advertisements. The League and ACLU advanced two (2) alternative legal theories in support of their First Amendment claim: (i) that the advertising space on city buses was a public forum, and rejection of the advertisement was impermissible content-based discrimination; and (ii) that the rejection of the advertisement constituted viewpoint discrimination. In their prayer for relief, the League and ACLU sought declaratory and injunctive relief, as well as damages, costs, and attorneys' fees.

The parties filed cross motions for summary judgment. Port Authority filed a motion for summary judgment in which it contended that it was entitled to judgment as a matter of law because (i) the advertising space on Port Authority's vehicles constitutes a non-public forum and Port Authority reasonably exercised its right to restrict political and non-commercial advertisements on its vehicles and (ii) Port Authority's rejection of the advertisements was viewpoint neutral because it did not accept advertisements with contrary viewpoints.

The League and ACLU filed a motion for partial summary judgment in which they argued that they were entitled to judgment as a matter of law on the issue of the defendants' liability because (i) Port Authority designated its bus-advertising space as a public forum, (ii) Port Authority acted unreasonably and committed viewpoint discrimination by refusing to run their advertisements despite having run similar advertisements in the past, and (iii) Port Authority's advertising policy was unconstitutionally vague.

The Court granted the Port Authority's motion in part, concluding that its city buses were not a public forum and rejection of the advertisement was not content-based discrimination. However, the Court denied the parties' cross-motions for summary judgment with respect to viewpoint discrimination. After a five-day bench trial, the Court ruled in favor of the League and ACLU and found that Port Authority's rejection of the advertisement amounted to viewpoint discrimination in violation of the First Amendment. The Court enjoined Port Authority from refusing to accept an advertisement from the League and ACLU concerning ex-offender voting rights in Pennsylvania and awarded damages to the League in the amount of $1,064.74 and to the ACLU in the amount of $825.00.

Port Authority filed its notice of appeal on August 7, 2009. The League and ACLU filed a notice of cross appeal. Oral arguments were heard by the United States Court of Appeals for the Third Circuit on May 10, 2011. On August 5, 2011, the court of appeals affirmed the Court's decision, finding that Port Authority's rejection of the ex-offender voting-rights advertisements was viewpoint discrimination, in violation of the League and ACLU's First Amendment rights. The Court of Appeals entered judgment against Port Authority on September 2, 2011.*fn1

Subsequently, the League and ACLU submitted a Petition for Attorney's Fees to the appellate court for fees and costs incurred in that court. On January 24, 2012, the Court of Appeals adopted as the opinion of the Court the Report and Recommendation of United States Magistrate Judge Timothy R. Rice dated December 12, 2011. The Petition for Award of Attorney's Fees was granted in part. The League and ACLU were awarded $102,139.50 in fees and $100.67 in costs.

The League and ACLU also filed in this Court a Petition for Award of Attorney's Fees limited to the work performed by counsel for the League and ACLU that was related to the proceedings in this Court.

Discussion The Court will address the Motion to Strike first and then proceed to address seriatim each of Port Authority's objections to the fee petition.

A. Motion to Strike

Port Authority argues that "it takes issue with the ACLU's belated attempt to offer new exhibits in support of the reasonableness of its fees to replace the insufficient exhibits that it provided with the Fee Petition." Mot. to Strike at 3.

The Court notes that in the fee petition the League and ACLU explicitly reserved the right to provide additional support for the reasonableness of their attorneys' hourly rates, to the extent the Port Authority objected to some or all of them. Fee Pet. at 38.*fn2 In its response to the fee petition, Port Authority did not raise any objection to the request of the League and ACLU to provide additional support if needed. Further, Port Authority fails to identify the arguments it considers new and offers no explanation as to why it is improper for the Court to consider any of the arguments advanced by the League and ACLU in response to the Port Authority's fee award objections.

The Court finds Port Authority's position to be without merit. Supplemental submissions are common practice in fee litigation. See, e.g., Best Med. Int'l, Inc. v. Accuray, Inc., No. 2:10-cv-1043, 2011 WL 5569506, at *1 (W.D. Pa. Nov. 16, 2011) (accepting a reply brief "with sealed supplemental Declarations" and a sur-reply brief); Adm'x of Estate of Conway v. Fayette Cnty. Children & Youth Servs., No. 08-0823, 2011 WL 3862394, at *1 (W.D. Pa. Aug. 31, 2011) (accepting a reply brief including supplemental exhibits), opinion vacated by 2012 WL 173888 (W.D. Pa. Jan. 17, 2012).

Accordingly, the Court finds that the arguments advanced by Port Authority do not warrant the exclusion of the challenged exhibits. The Motion to Strike, therefore, will be denied.

B. Reasonableness of Fees and Costs

In a recent opinion in NFL Properties LLC v. Wohlfarth, 2011 WL 1402770 (W.D. Pa. 2011), this member of the Court thoroughly articulated the standards which govern fee petitions in this circuit. Briefly summarized, the burden to establish reasonableness is on the party seeking an award of fees. The Court must first calculate a lodestar rate by multiplying a reasonable hourly rate in the relevant (Pittsburgh) legal community by the reasonable number of hours expended. Once the lodestar amount has been calculated, a court has discretion to adjust the fee upward or downward, based on a variety of factors. District courts are instructed to conduct a "thorough and searching analysis" of the fee application. A prevailing party may only recover for time reasonably expended and the Court must exclude time that was excessive, redundant or unnecessary. As the hourly rate demanded goes up, there should be a corresponding decrease in the amount of time required to accomplish necessary tasks, due to counsel's experience and expertise. Time that would not be billed to a client cannot be imposed on an adversary. See generally NFL Properties, 2011 WL 1402770 at * 2-5.

Counsel for the League and ACLU originally filed a fee petition in which they requested $348,550.00 in legal fees and $7,806.35 in costs. Port Authority objected to the Fee Petition, and in response, the League and ACLU filed a Fee Reply, in which they request an additional $3,385.00 in legal fees. In sum, the total amount of fees requested by counsel for the League and ACLU is $351,935.00, including the fees requested in the original Fee Petition and the fees requested in the Fee Reply. The total amount of costs requested by counsel for the League and ACLU is $7,806.35. The combined requested fees and expenses total $359,741.35.

Port Authority does not dispute that the League and ACLU are prevailing parties, nor does it challenge the hourly rates of Mr. Pushinsky or Mr. Sternberger.*fn3 Port Authority does, however, challenge (i) the hourly rates of Mr. Walczak and Ms. Rose; (ii) the number of hours billed by all four attorneys; (iii) reimbursements sought for local travel expenses and copy expenses in response to a Right to Know request; and (iv) the degree of success achieved by the League and ACLU.

Port Authority argues that the attorneys' fees and costs sought by the League and ACLU are "staggering." Fee Obj. at 2. Port Authority bases its claims largely on comparisons to its own counsels' fees, as well as a recent trial court opinion which reduced both the rates and hours claimed by Mr. Walczak and Ms. Rose. The Court notes, however, that the opinion relied upon by the Port Authority, Adm'x of Estate of Conway v. Fayette Cnty. Children & Youth Servs., No. 08-0823, 2011 WL 3862394, at *1 (W.D. Pa. Aug. 31, 2011), was vacated on January 17, 2012, pursuant to a settlement agreement by the parties. See Adm'x of Estate of Conway v. Fayette Cnty. Children & Youth Servs., No. 08-0823, 2012 WL 173888, at *1 (W.D. Pa. Jan. 17, 2012).

Although the Court finds that the League and ACLU have not established that all rates and hours claimed in their fee petition are reasonable, the Court finds that Port Authority similarly has failed to demonstrate that the significant reduction it is seeking is appropriate.

1. Hourly Rates

A reasonable hourly rate is to be calculated in accordance with the "prevailing market rate" in the "relevant community." The United States Court of Appeals for the Third Circuit embraces the "forum rate rule," in which the relevant community is generally the forum in which the suit was filed. Interfaith Community Org. v. Honeywell Intern., Inc., 426 F.3d 694, 703-05 (3d Cir. 2005). The relevant rate is to be calculated at the time of the fee petition, rather than the rate at the time the services were actually performed. Lanni v. New Jersey, 259 F.3d 146, 149 (3d Cir. 2001). The Court must base its decision on the record, rather than a generalized sense of what is customary or proper. Coleman v. Kaye, 87 F.3d 1491, 1510 (3d Cir. 1996). The rate should take into account prevailing counsel's skill and experience, the nature and complexity of the matter at issue, and should be evaluated with reference to the rates charged by comparable practitioners in the community. Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990). A reasonable fee is sufficient to attract competent counsel, but does not produce a windfall for the attorneys.

The League and ACLU seek the following hourly rates for their attorneys:

NAME HOURLY RATE Jon Pushinsky $375.00 Sara J. Rose $325.00 Witold Walczak $500.00 Marc Sternberger $200.00 Alexandra Morgan-Kurtz $200.00

Initially, the League and ACLU supported their requested hourly rates with declarations from counsel Jon Pushinsky, Sara J. Rose, and Witold J. Walczak, citations to other cases in which similar rates were awarded to attorneys with comparable skill and experience, and a case from early 2010 in which Mr. Walczak and Ms. Rose were awarded fees at rates $50 lower than the rates claimed here. After Port Authority objected to the rates of Mr. Walczak and Ms. Rose,*fn4 the League and ACLU supplemented their petition with additional citations to fee awards in other cases and declarations from four (4) respected Pittsburgh attorneys who each attested that the requested rates are reasonable in light of the attorneys' skill and experience and accurately reflect the market price for lawyers in this region with similar experience, skill, and reputation in cases involving complex federal litigation. See Reply, Exhibits 1 - 4.

Port Authority argues that Mr. Walczak's hourly rate should be reduced from $500 to $375, "the same $375 per hour rate applicable to their lead counsel, Mr. Pushinsky," Fee Obj. at 9, and that Ms. Rose's hourly rate should be reduced from the "staggering" request of $325 per hour to $205 per hour, "a rate . . . reasonable for the relatively straightforward First Amendment claim in this case . . ." Fee Obj. at 10.

Port Authority suggests that Mr. Walczak's hourly rate should be reduced because Mr. Walczak served as "a witness rather than legal counsel" and that Mr. Pushinsky served as Plaintiffs' lead counsel throughout the litigation. A review of Mr. Walczak time sheets reflects that while, he did testify at trial to rebut the testimony of former Port Authority general counsel Christopher Hess, he also played an integral role in the early stages of this litigation, including having telephone calls with Port Authority's general counsel and assisting with drafting and finalizing the Complaint and motion for temporary restraining order which were filed in this case.

As the Report and Recommendation adopted as the opinion of the United States Court of Appeals noted, "Mr. Walczak's formidable skill and experience in the area of civil rights litigation are apparent from his resume and the declarations of attorneys Robert J. Cindrich, Timothy P. O'Brien, Michael P. Malakoff, and Ellen Doyle." R&R, at 12. However, as was the case with Mr. Walczak's role in the appeals process, his role in this litigation was limited, with Mr. Pushinsky acting as lead counsel and Ms. Rose working directly with Mr. Pushinsky.

Notwithstanding his limited role, Port Authority has failed to establish that Mr. Walczak should be bound by Mr. Pushinsky's rate - which is not contested. However, as found in the Report and Recommendation, "besides the declarations, no evidence has been offered demonstrating Mr. Walczak -- or other non-lead counsel in a civil rights action - - has been awarded the $500 per-hour-rate he seeks." Accordingly, the ...


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