DOE v. WEINTRAUB

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOHN DOE, a pseudonym, CIVIL ACTION

Plaintiff,

NO. 23-3252-KSM

v.

JENNIFER SCHORN, District Attorney of Bucks

County, in Her Official Capacity, et al.,

Defendants.

MEMORANDUM

MARSTON, J. March 25, 2024

On August 23, 2023, Plaintiff John Doe filed this pre-enforcement action under 42 U.S.C.

§ 1983 against the Attorney General of Pennsylvania and the District Attorney of Bucks County

in their official capacities. (Doc. No. 1.) He challenged the confidentiality requirement in

Pennsylvania’s Educator Discipline Act under the First and Fourteenth Amendments, arguing

that it is unconstitutional as applied to him and on its face. (Id.) On January 10, 2024, the Court

granted Plaintiffs’ motion for summary judgment in part, granted the Attorney General’s cross

motion, denied the District Attorney’s cross motion, declared § 2070.17b(a), (b) of the Educator

Discipline Act unconstitutional as applied to Plaintiff in connection with his June 22, 2023

educator misconduct complaint, and permanently enjoined the District Attorney from bringing

criminal sanctions against Plaintiff for violations of § 2070.17b(a) in connection with that

misconduct complaint. (See Doc. Nos. 41, 42.) Plaintiff now moves for an award of attorneys’

fees and costs pursuant to 42 U.S.C. § 1988 against the District Attorney. (Doc. No. 44.) The

District Attorney opposes that motion to the extent Plaintiff seeks to recover attorneys’ fees but

makes no objection to Plaintiffs’ request for costs. (Doc. No. 45.) For the reasons discussed

below, the motion is granted in part and denied in part.

I. LEGAL STANDARD

Section 1988 is a fee shifting statute, under which “the court, in its discretion, may allow

the prevailing party” in a § 1983 action “a reasonable attorney’s fee as part of the costs.” 42

U.S.C. § 1988(b). “[A]lthough § 1988(b) expressly refers to a district court’s discretion, it is

well settled that a prevailing plaintiff should recover an award of attorney’s fees absent special

circumstances.” Truesdell v. Phila. Hous. Auth., 290 F.3d 159, 163 (3d Cir. 2002) (cleaned up).

In determining whether a fee request is reasonable, courts use the “‘lodestar’ formula, which

requires multiplying the number of hours reasonably expended by a reasonable hourly rate.”

Maldonado v. Houstoun, 256 F.3d 181, 184 (3d Cir. 2001); see also Hensley v. Eckerhart, 461

U.S. 424, 433 (1983). The party seeking attorneys’ fees bears the burden of showing that the

claimed rates and hours expended are reasonable. See Hensley, 461 U.S. at 433 (“The party

seeking an award of fees should submit evidence supporting the hours worked and rates

claimed.”); United Sates ex rel. Palmer v. C&D Tech., Inc., 897 F.3d 128, 139 (3d Cir. 2018)

(“In a statutory fees case, the party seeking attorney’s fees has the burden to prove that its

request for attorney’s fees is reasonable by submitting evidence supporting the hours worked and

rates claimed.” (cleaned up)). “The party opposing the fee award then has the burden to

challenge, by affidavit or brief with sufficient specificity to give fee applicants notice, the

reasonableness of the requested fee.” United States ex rel. Palmer, 897 F.3d at 138 (cleaned up).

II. DISCUSSION

There is no dispute that Plaintiff, who was granted summary judgment and received

permanent injunctive relief as against the District Attorney, is a prevailing party for purposes of

§ 1988(b). See Farrar v. Hobby, 506 U.S. 103, 111 (1992) (explaining that a plaintiff is a

prevailing party when they “obtain an enforceable judgment against the defendant from whom

fees are sought”); Truesdell, 290 F.3d at 163 (“[P]laintiffs may be considered prevailing parties

for attorney’s fees purposes if they succeed on any significant issue in litigation which achieves

some of the benefit the parties sought in bringing suit.” (cleaned up)). As such, he “should

recover an award of attorney’s fees absent special circumstances.” Truesdell, 290 F.3d at 163

(cleaned up). Here, Plaintiff requests $63,820.87 in fees and $191.74 in costs incurred by his

counsel, Attorney Aaron D. Martin, Attorney Sarah E. Straub, Law Clerk James A. Beebe, and

support staff at the law firm of Mette, Evans & Woodside. (Doc. No. 44.)

The District Attorney objects to Plaintiff’s fee request, arguing that no attorneys’ fees

should be awarded in this case because an award would be counter to the purpose of § 1988 and

because special circumstances warrant the denial of a fee award. (Doc. No. 45-1 at 2–7.) In the

alternative, the District Attorney argues that if a fee award is warranted, the Court should reduce

the amount of fees because the hourly rate requested and the hours expended by Attorney Martin

are unreasonable. (Id. at 7–11.) The Court addresses each objection in turn.

A. Purpose of § 1988

First, the District Attorney argues that no fee award is warranted in this case because

“[t]he clear aim of Section 1988 . . . is to allow recovery of fees where a party demonstrates a

violation of their civil rights, and where the fees are recovered from the party responsible for

such violation.” (Doc. No. 45-1 at 3.) She cites the Supreme Court’s opinion in Fox v. Vice for

the proposition that “[w]hen a plaintiff succeeds in remedying a civil rights violation, they may

recover a reasonable attorney’s fee from ‘the party whose misconduct created the need for legal

action.’” (Id. at 2–3 (quoting Fox, 563 U.S. 826, 833 (2011)).) And she reasons that because

Plaintiff brought a pre-enforcement case, “the District Attorney took no action” against Plaintiff,

and therefore, “did not violate Plaintiff’s civil rights.” (Id. at 3.) This argument misunderstands

the Supreme Court’s discussion in Fox, runs counter to the primary purpose of § 1988, and is

misapplied in the context of this case.

In Fox, the Supreme Court, relying on its prior precedent in Christiansburg Garment Co.

v. EEOC, noted that in cases brought pursuant to § 1983, the prevailing plaintiff “serves as a

private attorney general, vindicating a policy that Congress considered of the highest priority,”

and for that reason, the plaintiff “should ordinarily recover an attorney’s fee from the

defendant—the party whose misconduct created the need for legal action.” Id. (quotation marks

omitted); see also id. (“Fee-shifting in such a case at once reimburses a plaintiff for what it cost

him to vindicate civil rights, and holds to account a violator of federal law.” (cleaned up).) But

neither Fox nor Christiansburg involved a pre-enforcement challenge. Indeed, neither case

involved a plaintiff’s request for fee shifting under § 1988. Instead, in both cases, the Court

considered whether § 1988 supports an award of fees in favor of a prevailing defendant. See id.

at 836 (“Section 1988 allows a defendant to recover reasonable attorney’s fees incurred because

of, but only because of, a frivolous claim. Or what is the same thing stated as a but-for test:

Section 1988 permits the defendant to receive only the portion of his fees that he would not have

paid but for the frivolous claim.”); Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 417

(1978) (“The question in the case before us is what standard should inform a district court’s

discretion in deciding whether to award attorney’s fees to a successful defendant in a Title VII

action.” (emphasis added)). In answering that question, the Court discussed the policy reasons

that support fee shifting in favor of a prevailing plaintiff and recognized that they are different

from the policy reasons that could support fee shifting in favor of a prevailing defendant.

Christiansburg Garment Co., 434 U.S. at 418–19. Because neither Fox nor Christiansburg

considered the appropriateness of fees in the pre-enforcement context, they offer little support for

the District Attorney’s position that fee shifting is inappropriate when a § 1983 case is brought

before the state actor can complete a violation of a plaintiff’s constitutional rights.

Moreover, the District Attorney’s position runs counter to the clear admonition from the

Supreme Court, Third Circuit, and numerous other circuit courts that “a prevailing plaintiff

should ordinarily recover an attorney’s fee unless special circumstances would render such an

award unjust.” Hensley, 461 U.S. at 429 (emphasis added); Truesdell, 290 F.3d at 163; see also,

e.g., Hescott v. City of Saginaw, 757 F.3d 518, 523 (6th Cir. 2014) (“Although § 1988 uses

permissive language regarding fee awards, the Supreme Court has read § 1988 as mandatory

where the plaintiff prevails and special circumstances are absent.” (cleaned up)); Mendez v.

County of San Bernardino, 540 F.2d 1109, 1126 (9th Cir. 2008) (“A court’s discretion to deny

fees under § 1988 is very narrow and fee awards should be the rule rather than the exception.”

(quotation marks omitted)); Williams v. Hanover Hous. Auth., 113 F.3d 1294, 1300 (1st Cir.

1997) (“While § 1988 provides that attorneys’ fees may be granted to the prevailing party in the

district court’s discretion, both the legislative history and case law since enactment of § 1988

indicate that prevailing parties may not ordinarily be denied fees except in special circumstances

making the award unjust.”); Espino v. Besteiro, 708 F.2d 1002, 1005 (5th Cir. 1983) (“The

discretion to deny § 1988 fees is . . . extremely narrow. Absent special circumstances that would

render such an award unjust, a prevailing plaintiff should be awarded § 1988 fees as a matter of

course.” (cleaned up)).

And although one purpose of § 1988’s fee shifting provision may be (as the District

Attorney asserts) to hold the “violator of a federal law” accountable, Fox, 563 U.S. at 833, courts

are virtually unanimous in holding that the primary purpose of § 1988 is to encourage private

enforcement of civil rights laws, see, e.g., Hensley, 461 U.S. at 429 (“The purpose of § 1988 is to

ensure effective access to the judicial process for persons with civil rights grievances.”); Hescott,

757 F.3d at 523 (“Congress enacted 42 U.S.C. § 1988 to encourage the private enforcement of

civil rights.”); Mendez, 540 F.3d at 1126 (“Congress’ intent in enacting § 1988 was to attract

competent counsel to prosecute civil rights cases, where ‘victims ordinarily cannot afford to

purchase legal services at the rates set by the private market.’” (quoting City of Riverside v.

Rivera, 477 U.S. 561, 576 (1986) (plurality opinion.))); Martin v. Heckler, 773 F.2d 1145, 1150

(11th Cir. 1985) (en banc) (“A principal purpose of [§ 1988] is to encourage civil rights

enforcement by plaintiffs acting as private attorneys general.” (quotation marks omitted)).

Disallowing fee awards in the pre-enforcement context would be counter to this purpose, as it

could dissuade a civil rights plaintiff from filing suit at all. For example, the Court can imagine a

case where a plaintiff cannot shoulder the burden of attorney’s fees and thus, does not bring a

pre-enforcement challenge, but also is unwilling to risk criminal sanctions before challenging an

otherwise unconstitutional law.

Last, we find somewhat disingenuous the District Attorney’s suggestion that fees are

unwarranted because she has not yet violated Plaintiff’s constitutional rights. Although the

District Attorney did not prosecute or threaten to prosecute Plaintiff before he filed his

Complaint, during the lawsuit, she refused to disavow an intent to prosecute if Plaintiff did

violate the Discipline Act’s confidentiality provisions. (See Doc. No. 41 at 18 (finding at

summary judgment that there was a “credible threat of enforcement” because the “District

Attorney has not disavowed an intent to prosecute Plaintiff, nor is there any dispute that

Plaintiff’s intended conduct is prohibited by the Act”)); cf. Migliori, 668 F. Supp. 3d at 349

(“The Board’s reasoning impliedly concedes that Plaintiffs could not have possibly vindicated

their rights without bringing suit, and the Court finds that a denial of attorney’s fees would not be

appropriate for this reason.”).1 Having found a “credible threat of enforcement” by the District

Attorney and that such enforcement in this case would violate Plaintiff’s First Amendment

rights, the Court rejects the District Attorney’s argument that fees are unwarranted because she

had not yet done so.

Accordingly, the Court denies the District Attorney’s objection to the fee award as

contrary to the purpose of § 1988.

B. Special Circumstances

Second, and relatedly, the District Attorney argues that a fee award is inappropriate in

this action because special circumstances render such an award unjust. (Doc. No. 45-1 at 4–7.)

As stated above, “although § 1988(b) expressly refers to a district court’s discretion, it is well

settled that a prevailing plaintiff should recover an award of attorney’s fees absent special

circumstances.” Truesdell, 290 F.3d at 163 (cleaned up). The Supreme Court has provided little

guidance on what circumstances would render a fee award “unjust.” See Ward v. Phila. Parking

Auth., 634 F. App’x 901, 906 (3d Cir. 2015) (“[T]he Supreme Court has offered little guidance

as to what situations qualify.”); see also Déjà vu of Nashville, Inc. v. Metro. Gov’t of Nashville &

Davidson Cnty., 421 F.3d 417, 422 (6th Cir. 2005) (“[L]ittle guidance has been provided by the

Supreme Court as to precisely what constitutes a special circumstance that would defeat a fee

award . . . .”). That said, the Third Circuit has emphasized that the “special circumstances”

exception is “an extremely limited one that is applied only in unusual circumstances and then

only upon a strong showing by the party asserting it.” Ashley v. Atl. Richfield Co., 794 F.2d 128,

1 Although the District Attorney succeeded the former District Attorney toward the end of this

case, and it was the former, not the current, District Attorney who refused to disavow an intent to

prosecute, the Court’s analysis remains the same. What matters here is that the Office of the District

Attorney refused to disavow any intent to prosecute throughout this case.

135 n.9 (3d Cir. 1986); see also Ward, 634 F. App’x at 906.2 “As a result, this exception is

typically only applied by courts to eliminate fees in extraordinary cases where the plaintiff’s non-

meritorious claims or ill conduct over the course of the litigation have somehow rendered the fee

award unjust.” Migliori v. Lehigh Cnty. Bd. of Elections, 668 F. Supp. 3d 337, 344 (E.D. Pa.

2023) (collecting cases from this Circuit).3

The District Attorney does not (and cannot) argue that Plaintiff’s claims were “non-

meritorious,” nor does she argue that Plaintiff or Plaintiff’s counsel engaged in misconduct

during this litigation. Instead, she argues that there are “special circumstances” in this case

because her “involvement in this case is exclusively attributable to the office she holds.” (Doc.

No. 45-1 at 6.) In other words, she reasons that fee shifting is unjust because the “District

Attorney is not responsible for the formation of the statute complained of and the District

Attorney never acted or even threatened to enforce the statute in question.” (Id.)

2 The District Attorney suggests the Court should apply the “special circumstances” test outlined

by the Ninth Circuit in Mendez v. County of San Bernardino: “[W]e evaluate whether special

circumstances exist by asking whether ‘(1) allowing attorney’s fees would further the purposes of § 1988

and (2) whether the balance of equities favors or disfavors the denial of fees.’” (Doc. No. 45-1 at 5);

Mendez v. County of San Bernardino, 540 F.3d 1109, 1126 (9th Cir. 2008) (quoting Thomas v. City of

Tacoma, 410 F.3d 644, 648 (9th Cir. 2005)). The District Attorney has not shown that any court outside

the Ninth Circuit has adopted this test, and to the contrary, she acknowledges that other Circuits,

including the Sixth Circuit, have “opted for a case-by-case approach rather than adopting a pre-

determined formula.” (Doc. No. 45-1 at 5); Déjà vu, 421 F.3d at 422. In any event, even if the Court

were to adopt the Ninth Circuit’s test, we note that, as discussed supra Part II.A, rejecting fees here would

not “further the purposes of § 1988.” And, as discussed below, we reject the District Attorney’s assertion

that the equities disfavor fees in this case because she only has limited enforcement authority in

connection with the Educator Discipline Act.

3 For example, courts have found “special circumstances” where the plaintiff or plaintiff’s

counsel engaged in “outrageous or inexcusable conduct” during the litigation, Williams, 113 F.3d at 1301

(quotation marks omitted), where the parties entered a nuisance settlement and plaintiff’s claim “clearly

appears to be legally or factually non-meritorious,” Ashley, 794 F.2d at 134 n.9, where the plaintiff

recovered “what was essentially a tort claim for private monetary damages” and which “did not require

injunctive relief or confer significant civil rights to the public,” Grisham v. City of Fort Worth, 837 F.3d

564, 568–69 (5th Cir. 2016), and where the plaintiff “received the benefits desired from their litigation,”

but “their efforts did not contribute to achieving those results,” id. (quotation marks omitted); see also

Chastang v. Flynn & Emrich Co., 541 F.2d 1040, 1045 (4th Cir. 1976) (refusing to award attorney’s fees

where discriminatory acts ceased before plaintiffs filed suit).

But courts have consistently rejected the notion that a defendant avoids fee shifting

simply because they were charged with enforcing an unconstitutional statute or regulation. See

Supreme Ct. of Va. v. Consumers Union of U.S., Inc., 446 U.S. 719, 739 (1980) (“We are not

convinced that it would be unfair to award fees against the State Bar, which by statute is

designated as an administrative agency to help enforce the State Bar Code. Fee awards against

enforcement officials are run-of-the-mill occurrences, even though, on occasion, had a state

legislature acted or reacted in a different or more timely manner, there would have been no need

for a lawsuit or for an injunction.”); Migliori, 668 F. Supp. 3d at 348–49 (rejecting the

defendant’s argument that special circumstances existed because the defendant “did not possess

the unilateral ability and/or capacity to take any action to remedy the challenged action here”

(quotation marks omitted)); Finberg v. Sullivan, 555 F. Supp. 1068, 1070 (E.D. Pa. 1982) (“That

the sheriff and prothonotary were performing ministerial acts and had no authority to change the

challenged rules does not compel a finding that the award of attorney’s fees against these parties

would be unjust.”); cf. Martin, 773 F.2d at 1150 (“It is also not a special circumstance sufficient

to preclude a fee award against the state defendant that the state merely acted pursuant to federal

regulation.”).

Likewise, it is immaterial that the District Attorney may have acted in good faith when

she refused to disclaim an intent to prosecute under the Discipline Act. See Hescott, 757 F.3d at

526 (“We have held time and again that good faith is not a special circumstance which justifies

the denial of attorney’s fees under section 1988.” (quotation marks omitted)); Williams, 113 F.3d

at 1301 (“The circuits are in agreement . . . that defendants’ good faith reliance even on settled

law . . . is not a ‘special circumstance’ warranting a denial of attorneys’ fees under § 1988.”);

Lampher v. Zagel, 755 F. 2d 99, 104 (7th Cir. 1985) (“[T]he good faith of the defendants is

irrelevant because the key issue is the provocative role of the plaintiffs’ lawsuit, not the

motivation of the defendant.” (cleaned up)); Martin, 773 F.2d at 1150 (“Defendants’ good faith,

lack of culpability, or prompt remedial action do not warrant a denial of fees under the special

circumstances preclusion.”); Espino, 708 F.2d at 1005 (“Good faith is not a special circumstance

sufficient to justify the denial of fees under § 1988.”); Riddell v. Nat’l Democratic Party, 624

F.2d 539, 545 (5th Cir. 1980) (“State officials cannot show special circumstances sufficient to

prevent an award of fees merely because the officials enforced the statute in good faith

compliance with their official duty, or because any award of attorneys’ fees would ultimately be

satisfied by state taxpayers.”); Nadeau v. Helgemoe, 581 F.2d 275, 280 (1st Cir. 1978) (“The

good faith of defendants is not a controlling factor in determining whether or not plaintiffs merit

an award . . . . The key issue is the provocative role of the plaintiff’s lawsuit, not the motivations

of the defendant.”); Chastang, 541 F.2d at 1045 (“Of course, the Company’s good faith alone

would not insulate it from making plaintiffs whole . . . .”).

Accordingly, the Court rejects the District Attorney’s argument that special

circumstances exist in this case which would render a fee award unjust.

C. Reasonable Fee

Having found Plaintiff is entitled to recover attorneys’ fees, the Court turns to the

reasonableness of the fees requested. As stated above, in determining whether the fees requested

are reasonable, courts use the “‘lodestar’ formula, which requires multiplying the number of

hours reasonably expended by a reasonable hourly rate.” Maldonado, 256 F.3d at 184; see also

Hensley, 461 U.S. at 433.

1. Hourly Rate

The Court begins with the reasonableness of the hourly rates for Plaintiff’s counsel.

Here, Plaintiff seeks to recover fees for Attorney Martin at an hourly rate of $792.50, for

Attorney Straub at an hourly rate of $260, for Law Clerk Beebe at an hourly rate of $190, and for

support staff at an hourly rate of $190. (Doc. No. 44 at 8–11.) The District Attorney challenges

only Mr. Martin’s hourly rate. (Doc. No. 45-1 at 9.)

“[A] reasonable hourly rate is calculated according to the prevailing market rates in the

relevant community.” Maldonado, 256 F.3d at 184; see also Blum v. Stenson, 465 U.S. 886, 895

(1984) (“The statute and legislative history establish that ‘reasonable fees’ under § 1988 are to be

calculated according to the prevailing market rates in the relevant community, regardless of

whether plaintiff is represented by private or nonprofit counsel.”). “[T]he starting point . . . is the

attorney’s usual billing rate, but this is not dispositive.” Maldonado, 256 F.3d at 184 (cleaned

up). The court must “assess the experience and skill of the prevailing party’s attorneys and

compare their rates to the rates prevailing in the community for similar services by lawyers of

reasonably comparable skill, experience, and reputation.” Id. (cleaned up). As the prevailing

party, Plaintiff bears the burden of producing “‘satisfactory evidence in addition to the attorney’s

own affidavits that the requested hourly rates . . . meet this standard.” Id. In performing this

analysis, courts in this Circuit also consider whether the requested hourly rate is in line with the

Community Legal Services (“CLS”) fee schedule.4 See id. at 187 (stating that the CLS fee

schedule has been cited approvingly by the Third Circuit).

As discussed, Plaintiff seeks to recover for Mr. Martin’s time at an hourly rate of

$792.50. (Doc. No. 44 at 6.) At the time of this litigation, Mr. Martin had approximately 28

years’ experience litigating cases in Pennsylvania, which included litigating similar First

Amendment claims before Pennsylvania’s federal district courts and the Third Circuit. (Doc.

4 The most recent version of this fee schedule, which was effective January 19, 2023, can be

found here: https://clsphila.org/about-community-legal-services/attorney-fees/.

No. 44-3); see also Schrader v. Dist. Att’y of York Cnty., 74 F.4th 120 (3d Cir. 2023) (litigated

by Mr. Martin); Doe v. Govr. of Pa., 790 F. App’x 398 (3d Cir. 2019) (same); Stilp v. Contino,

629 F. Supp. 2d 449 (M.D. Pa. 2009), aff’d 613 F.3d 405 (3d Cir. 2010) (same). The CLS fee

schedule lists the range of hourly rates for attorneys with more than 25 years’ experience as $735

to $850, see supra n.4, so Mr. Martin’s requested rate is consistent with the hourly rates

“prevailing in the community for similar services by lawyers of reasonably comparable skill,

experience, and reputation.” Maldonado, 256 F.3d at 184. In addition, Mr. Martin has submitted

the declaration of Samuel C. Stretton, an attorney who has litigated in Pennsylvania since

December 1973, and who has known Mr. Martin for approximately 20 years. (Doc. No. 44-7 at

1.) Mr. Stretton avers that “[b]ased upon [his] familiarity with rates generally charged by

litigators in southeastern Pennsylvania, and specifically matters heard in the U.S. District Court

for the Eastern District of Pennsylvania in Philadelphia, it is [his] opinion that $792.50 is a

reasonable hourly rate in line with those prevailing in the community for similar services by

lawyers of reasonably comparable skill, experience, and reputation.” (Id. at 2.)

The District Attorney argues that Mr. Martin’s hourly rate is extraordinary and

unjustified. (Doc. No. 45-1 at 9.) She does not dispute that it is supported by the CLS fee

schedule and Mr. Stretton’s declaration. Instead, she points to a declaration that Mr. Martin

submitted in Schrader, in which he averred that his “standard hourly rate for civil litigation is

$450.” (Doc. No. 45-1 at 9; see also Doc. No. 45-3 at 3.) Mr. Martin executed that declaration

on August 14, 2023, just a few days before he filed the Complaint in this action. (See Doc. No.

45-3 at 3.) In addition, in support of Mr. Martin’s fee request in Schrader, Mr. Stretton

submitted a declaration, signed August 15, 2023, which averred, “[b]ased upon [his] familiarity

with rates generally charged by litigators in cases in the Philadelphia vicinage, and specifically

appeals heard by the U.S. Court of Appeals for the Third Circuit, it is my opinion that $450 is a

reasonable hourly rate for services performed by a civil litigator of Mr. Martin’s skill,

experience, and reputation.” (Doc. No. 45-4 at 3.)

Given these declarations, the Court agrees with the District Attorney that Plaintiff has

failed to show an hourly rate of $792.50 for Mr. Martin is reasonable. Although this rate falls

within the CLS fee schedule for attorneys with similar experience, Mr. Martin has not shown that

Plaintiff, or indeed, any other client, has agreed to pay him that hourly rate. See Ray v. AT&T

Mobility Servs., LLC, Civil Action No. 18-3303, 2022 WL 1203730, at *6 (E.D. Pa. Apr. 22,

2022) (noting that the plaintiff “fail[ed] to present any evidence showing that any client has

willingly agreed to pay” the hourly rates sought); Holt v. Pennsylvania, Civil Action No. 10-

5510, 2020 WL 2098103, at *14 (E.D. Pa. May 1, 2020) (“Plaintiff has not averred that Puricelli

has actually billed any paying client at an hourly rate of $750 or that anyone, including any court

authorizing an award in a fee-shifting case, has ever paid him that rate.”); Middlebrooks v. Teva

Pharms. USA, Inc., No. 17-412, 2019 WL 936645, at *12 (E.D. Pa. Feb. 26, 2019) (“Returning

to Microeconomics 101 in setting a reasonable market price, we may look to what a willing

client would pay a willing lawyer.”). And although this fact, on its own, is not fatal to the

requested rate, here, we also have a declaration that Mr. Martin executed just a few days before

filing this lawsuit, which shows that the hourly rate that he charges clients is $450—a rate that is

nearly half of the $792.50 per hour that he now seeks. Cf. Maldonado, 256 F.3d at 184 (“Hours

that would not generally be billed to one’s own client are not properly billed to an adversary.”

(cleaned up)); W. Va. Univ. Hosps., Inc. v. Casey, 898 F.2d 357, 365 (3d Cir. 1990) (reminding

counsel “that members of the bar are officers of the court and that they should demonstrate the

same level of billing judgment and sensitivity in fee shifting situations as they do with their own

private clients”). Mr. Martin has not claimed that his standard hourly rate changed in the five

months that this litigation was ongoing, nor has he explained the discrepancies between the rate

sought in this case and that sought in Schrader, a case with similar legal and factual issues.

Accordingly, the Court lowers Mr. Martin’s hourly rate to $450. Because the District

Attorney does not challenge the hourly rates for Ms. Straub, Mr. Beebe, and the firm’s support

staff, the Court does not alter their requested rates.

2. Hours Expended

Next, the Court considers whether Plaintiff has shown that the hours expended by his

attorneys were reasonable. “In calculating the hours reasonably expended, a court should review

the time charged, decide whether the hours set out were reasonably expended for each of the

particular purposes described and then exclude those that are excessive, redundant, or otherwise

unnecessary.” Maldonado, 256 F.3d at 184. “Hours that would not generally be billed to one’s

own client are not properly billed to an adversary.” Id. (cleaned up). Further, “[t]he fact that

private lawyers may perform tasks other than legal services for their clients, with their consent

and approval, does not justify foisting off such expenses on an adversary under the guise of

reimbursable legal fees.” Halderman ex rel. Halderman v. Pennhurst State Sch. & Hosp., 49

F.3d 939, 942 (3d Cir. 1995).

Plaintiff requests reimbursement for a total of 87.15 hours.5 (Doc. No. 44-2.) He argues

that this amount is reasonable, given that the litigation lasted only five months and “Attorney

Martin was able to draw upon [his prior] subject matter experience in litigating the present case,”

which resulted in “a significant reduction in total time required for legal research in litigating this

case.” (Doc. No. 44 at 8.) Plaintiff emphasizes the “compressed time-frame” for the action,

5 This number accounts for the reductions in hours discussed later in this paragraph.

noting that Mr. Martin “was able to work with opposing counsel and the Court to advance the

case expeditiously toward final adjudication, avoiding the necessity both of formal discovery and

trial to reach final adjudication upon stipulated facts.” (Id. at 9.) Finally, Plaintiff notes that the

total hours sought reflects that Plaintiff has: (1) deducted entirely the time attributable to

litigating claims “against the Attorney General as opposed to the District Attorney,” (2) reduced

by 50% the time attributable to litigating issues that applied jointly to the claims against the

Attorney General and the District Attorney, and (3) reduced by 50% the travel time on January 9,

2024, to reflect a one-half hourly rate for travel. (Id. at 11.)

The District Attorney objects to the requested hours to the extent they bill for work

performed for: “[1] proceeding by way of pseudonym, [2] preparing and filing of a preliminary

injunction (dismissed as moot Doc. 41, 42), [3] documents, filings and/or exhibits under seal,

[4] ‘rights of access,’ [which relates to the motion to seal] and [5] prepar[ing] and fil[ing] this

current motion for fees.” (Doc. No. 45-1 at 10.) She argues in conclusory fashion that this time

should be excluded because it seeks reimbursement for “hours spent litigating claims on which

[Plaintiff] did not succeed and that were distinct in all respects from the claims on which

[Plaintiff] did succeed” or “the hours are excessive, redundant, or otherwise unnecessary.” (Id.

at 10–11 (quotation marks omitted)). The Court disagrees.

First, of the challenged actions, the motion for preliminary injunction is the only one on

which Plaintiff arguably did not succeed. The Court denied that motion as moot after issuing a

permanent injunction addressing the same conduct. (See Doc. No. 42 at 2.) But courts have

repeatedly held that a plaintiff is entitled to recover fees incurred preparing motions which were

ultimately denied. See Hensley, 461 U.S. at 435 (“[T]he fee award should not be reduced simply

because the plaintiff failed to prevail on every contention raised in the lawsuit. . . . Litigants in

good faith may raise alternative legal grounds for a desired outcome, and the court’s rejection of

or failure to reach certain grounds is not a sufficient reason for reducing a fee.”); see also, e.g.,

Gortat v. Capala Bros., Inc., 621 F. App’x 19, 23 (2d Cir. 2015) (“[T]here is no rule that

Plaintiffs need [to] achieve total victory on every motion in pursuit of a successful claim in order

to be compensated for the full number of hours spent litigating that claim.”); In re Gordon

Props., LLC, No. 09-18086-RGM, 2013 WL 5379828, at *3 (E.D. Va. Sept. 26, 2013) (“There is

a distinction between succeeding on a claim and succeeding on every motion or action taken in

prosecution or defense of a claim. Gordon Properties may recover its attorney’s fees for

unsuccessful motions or actions when it is successful on the claim to which they apply, but not

for any motion to action made or taken in an unsuccessful claim even if the motion or action was

itself successful.”).

Here, the fact that the Court chose to address this case on the merits at summary

judgment and issue permanent injunctive relief does not mean that Plaintiff is not entitled to

recover fees on the motion for preliminary injunctive relief. In many respects, the parties’ briefs

at summary judgment relied on the preliminary injunction briefing, which suggests the efforts

counsel put into the motion for preliminary injunction contributed to Plaintiff’s ultimate success

on the merits of his § 1983 claim and request for a permanent injunction. (See Doc. No. 20 at 7;

Doc. No. 25 at 15; Doc. No. 28 at 5; Doc. No. 29 at 4; Doc. No. 30 at 11 n.1); see also POM

Wonderful, LLC v. Purely Juice, Inc., No. CV 07-2633 CAS(JWJX), 2008 WL 4351842, at *4

(C.D. Cal. Sept. 22, 2008) (“[T]he Court finds that plaintiff is entitled to the attorneys’ fees it

incurred in its [unsuccessful] motion for a preliminary injunction and the related appeal because

the Court ultimately issued a permanent injunction based on very similar arguments.”); Turley v.

N.Y. City Police Dep’t, No. 93 CIV. 8748 (SAS),1998 WL 760243, at *2 (S.D.N.Y. Oct. 30,

1998) (adopting report and recommendation that “the hours spent on plaintiff’s preliminary

injunction motion should not be excluded” because “the issues which plaintiff initially raised in

the preliminary injunction context remained central to the entire litigation” and “given the

constancy of the issues, it is reasonable to conclude that the effort spent on the motion for a

preliminary injunction saved attorney’s hours at the later stages of the litigation”).

Finally, the Court finds that it was not unreasonable for counsel to spend 12 hours

researching and drafting the motion and briefs requesting a preliminary injunction and preparing

for court conferences on that motion. See, e.g., Nature Conservancy, Inc. v. Sims, No. CIV.A.

07-112-JMH, 2009 WL 2382378, at *2 (E.D. Ky. July 30, 2009) (“Nearly fifty-three hours were

spent drafting and revising the Motion for Preliminary Injunction that was filed simultaneously

with the Complaint. This time appears reasonable given the in-depth treatment of the issues

presented in the twenty-eight page memorandum and twenty-one exhibits.”). Accordingly, the

Court declines to exclude hours that counsel spent litigating Plaintiff’s motion for preliminary

injunction.

That leaves the District Attorney’s conclusory assertion that the fees sought are

excessive, redundant, or unnecessary to the extent Plaintiff seeks to recover for work spent

litigating the motion to proceed under pseudonym, the motion to seal, and the current fee

petition. After a thorough review of counsels’ time records, the Court does not find the

challenged hours unnecessary or excessive. Beginning with the motions to proceed under

pseudonym and to seal exhibits referencing the underlying disciplinary proceeding, we find that

both motions were “useful and of a type ordinarily necessary” to advance this litigation. Cf.

Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546, 556 (1986)

(referencing the Court’s prior holdings that work performed for a state administrative hearing

may be compensable under § 1988 if it “was both useful and of a type ordinarily necessary to

advance the litigation to the point where the party succeeded” (quotation marks omitted)).

Because the Educator Discipline Act authorized criminal sanctions against Plaintiff if the sealed

information, including his name, were publicly disclosed, the motions to proceed under

pseudonym and to seal were “reasonably necessary” for Plaintiff to pursue this litigation which

challenged those confidentiality provisions and sought an injunction allowing disclosure of that

information. See Hensley, 461 U.S. at 434 (explaining that a fee award should include those

hours “reasonably expended” on the litigation); cf. Kennan v. City of Philadelphia, 983 F.2d 459,

474 (3d Cir. 1992) (finding the district court did not abuse its discretion when awarding fees for

time spent in related labor arbitration because “the arbitration matter was inextricably linked to

the issues before the district court” (cleaned up)). Counsel spent a total of 18.15 hours

researching and drafting the motion to proceed under pseudonym and the motion to seal. The

Court finds this time reasonable.

In addition, the Court finds that, as the prevailing party, Plaintiff is entitled to recover

fees for the time counsel spent working on the motion to recover attorneys’ fees. See Planned

Parenthood of Cent. N.J. v. Att’y Gen. of N.J., 297 F.3d 253, 268 (3d Cir. 2002) (“A party

entitled to an award of attorneys’ fees is also entitled to reimbursement for the time spent

litigating its fee application.”); Prandini v. Nat’l Tea Co., 585 F.2d 47, (3d Cir. 1978) (“[T]he

time expended by attorneys in obtaining a reasonable fee is justifiably included in the attorneys’

fee application, and in the court’s fee award.”). Here, the 10.90 hours that counsel spent drafting

this motion and the accompanying declarations and exhibits was not excessive. See Nature

Conservancy, Inc., 2009 WL 2382378, at *2 (“The nearly thirteen hours spent preparing the

Motion for Attorneys Fees and Costs and twelve-page supporting memorandum also appears

reasonable.”).

For those reasons, the Court rejects the District Attorney’s objections to the hours

expended by Plaintiff’s counsel.

III. CONCLUSION

Plaintiffs’ motion for attorney’s fees against the District Attorney is granted in part and

denied in part. Mr. Martin’s hourly rate is reduced from $792.50 to $450.00 for the reasons

explained in this Memorandum. Plaintiff is awarded $36,071.50 in attorneys’ fees as reflected in

the chart below:

Name Rate Hours Fees

Aaron Martin $450 75.05 $33,772.50

Sarah Straub $260 06 $0

James Beebe $190 11.6 $2,204

Support Staff $190 0.5 $95

Total $36,071.50

Plaintiff is also awarded $192.94 in costs. An appropriate order follows.

6 Ms. Straub worked only on Plaintiff’s opposition to the motion for summary judgment

submitted by the Attorney General, and thus, her hours are discounted 100%.