921 F.3d 378
3rd Cir.2019Background
- In 2017 Pennsylvania plaintiffs challenged the 2011 congressional map in state court, alleging partisan gerrymandering in violation of the Pennsylvania Constitution.
- Senator Joseph Scarnati, named only in his official capacity as State Senate President Pro Tempore, removed the case to federal court after a writ of election was issued for a special congressional election.
- Plaintiffs moved to remand; the federal district court remanded the case the same day and later awarded plaintiffs costs and attorneys’ fees under 28 U.S.C. § 1447(c) for the removal and remand proceedings.
- The district court reduced plaintiffs’ fee request, applied a Philadelphia blended rate ($400/hr), awarded $26,240 in fees and $3,120.02 in costs, and — without explanation — directed Scarnati personally to pay the award.
- On appeal the Third Circuit affirmed entitlement to fees and the calculation of the award, but held the district court erred in imposing personal liability on Scarnati because he was sued only in his official capacity and thus is not personally a party to the action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs are entitled to fees under 28 U.S.C. § 1447(c) for removal | Removal was untimely and lacked consent, so fees are warranted | Removal was reasonable; the writ of election restarted the 30-day removal period under § 1446(b)(3) | Affirmed: fees may be awarded because removal lacked an objectively reasonable basis (untimely and lacked consent) |
| Whether the October 23 Writ of Election qualified as an “other paper” under § 1446(b)(3) restarting the 30‑day removal clock | The writ created a substantial federal question, so it should restart the clock | The writ was external to the case and not an “other paper” within § 1446(b)(3) | Held: writ did not qualify; removal was untimely and lacked an objectively reasonable basis |
| Whether fees may be imposed personally on an official-capacity defendant who was sued only in that capacity | Plaintiffs argued Scarnati’s conduct warranted personal liability to avoid shifting burden to taxpayers | Scarnati argued he was sued only in his official capacity and cannot be held personally liable under § 1447(c) | Reversed: cannot impose personal liability on Scarnati because official-capacity suit is against the government entity, not the individual |
| Whether the district court abused its discretion in calculating the fee and cost award (rates, hours, costs) | Requested D.C. rates and full hours; sought Westlaw and travel costs | District court should apply local prevailing rates and reduce hours for duplication | Affirmed: lodestar method, blended $400/hr Philadelphia rate, 20% reduction for overlap, and awarded research/costs were reasonable |
Key Cases Cited
- Martin v. Franklin Capital Corp., 546 U.S. 132 (establishes that fees under § 1447(c) are available only when the removing party lacked an objectively reasonable basis)
- Kentucky v. Graham, 473 U.S. 159 (distinguishes official-capacity suits from personal-capacity suits and treats official-capacity actions as suits against the government entity for fee purposes)
- Doe v. Am. Red Cross, 14 F.3d 196 (3d Cir.) (narrow, unique-circumstances recognition that a non-case "order" might restart removal time; construed narrowly)
- A.S. ex rel. Miller v. SmithKline Beecham Corp., 769 F.3d 204 (3d Cir.) (refuses to expand Doe; ‘other paper’ in § 1446(b)(3) generally means developments within the case)
- In re AT&T Corp., 455 F.3d 160 (3d Cir.) (lodestar method and fee calculation principles affirmed)
- Roxbury Condo. Ass’n v. Anthony S. Cupo Agency, 316 F.3d 224 (3d Cir.) (standard of review and that colorable removal in unsettled law may not merit § 1447(c) fees)