Case 2:06-cv-01064-TFM Document 139 Filed 02/24/12 Page 1 of 29 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA PITTSBURGH LEAGUE OF YOUNG ) VOTERS EDUCATION FUND and ) AMERICAN CIVIL LIBERTIES ) FOUNDATION OF PENNSYLVANIA, ) ) Plaintiffs, ) ) v. ) 02: 06-cv-1064 ) PORT AUTHORITY OF ALLEGHENY ) COUNTY and ANTHONY J. HICKTON, ) Director of Sales, ) ) Defendants. ) 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). Case 2:06-cv-01064-TFM Document 139 Filed 02/24/12 Page 2 of 29 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. 2 Case 2:06-cv-01064-TFM Document 139 Filed 02/24/12 Page 3 of 29 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. 3 Case 2:06-cv-01064-TFM Document 139 Filed 02/24/12 Page 4 of 29 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, 2011.1 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. 1 On appeal, the League and ACLU successfully defended the Court’s finding of viewpoint discrimination, which entitled them to complete relief. The court of appeals, therefore, did not examine the alternative legal theories that also could have supported the League and ACLU’s First Amendment claim. 4 Case 2:06-cv-01064-TFM Document 139 Filed 02/24/12 Page 5 of 29 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 38.2 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. 2 Paragraph 38 of the fee petition contains the following reservation of rights and request: In an effort to minimize the expenditure of additional time, fees, and expenses, the League and ACLU have not included in this submission supporting affidavits from community lawyers because the process of soliciting those testimonials can be time-consuming, thus driving up fees. Accordingly, the League and ACLU respectfully request that they be given an opportunity to submit the requisite affidavits to support rates that Port Authority and Hickton may contest (and of course the League and ACLU will not object to defendants having an opportunity to respond thereto). 5 Case 2:06-cv-01064-TFM Document 139 Filed 02/24/12 Page 6 of 29 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.