League of Women Voters of Penn v. Commonwealth of Pennsylvania
Opinion
SCIRICA, Circuit Judge 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
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 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.
B.
The day after the Commonwealth Court issued its scheduling order, Senator Scarnati removed the case to the United States District Court for the Eastern District of Pennsylvania.
See
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.
In accordance with the District Court's remand order, plaintiffs asked for, under
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,
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 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 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."
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."
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
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."
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.' "
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
,
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.
We find instructive the Supreme Court's reasoning in a similar context. In
Kentucky v. Graham
, the Supreme Court considered "whether
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.
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
,
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.
,
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.
,
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.
,
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.
,
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.
,
Accordingly, we will affirm the costs and fees awarded.
III.
In sum, we conclude the District Court did not abuse its 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.
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
,
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.
The District Court had jurisdiction under
"We review an award of attorneys' fees under section 1447(c) for abuse of discretion."
Roxbury Condo. Ass'n v. Anthony S. Cupo Agency
,
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
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,
Reference
- Full Case Name
- 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
- Cited By
- 17 cases
- Status
- Published