League of Women Voters of Penn v. Commonwealth of Pennsylvania

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 18-1838

____________

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

_______________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

D.C. Civil Action No. 2-17-cv-05137

(District Judge: Honorable Michael M. Baylson)

______________

Argued: November 7, 2018

Before: AMBRO, SCIRICA, and RENDELL,

Circuit Judges.

(Filed: April 24, 2019)

Matthew H. Haverstick [ARGUED]

Shohin H. Vance

Joshua J. Voss

Kleinbard

Three Logan Square

1717 Arch Street

5th Floor

Philadelphia, PA 19103

Counsel for Appellant

2

Sara M. D’Amico

Daniel F. Jacobson

R. Stanton Jones

John J. Robinson

Elisabeth S. Theodore [ARGUED]

Arnold & Porter Kaye Scholer

601 Massachusetts Avenue, N.W.

Washington, DC 20001

Benjamin D. Geffen

Mary M. McKenzie

Public Interest Law Center of Philadelphia

1709 Benjamin Franklin Parkway

United Way Building

2nd Floor

Philadelphia, PA 19103

Counsel for Appellees 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, and Lorraine Petrosky

_________________

OPINION OF THE COURT

_________________

SCIRICA, Circuit Judge

3

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 28 U.S.C. § 1447(c), the federal court

later directed Senator Scarnati personally to pay $29,360 to

plaintiffs for costs and fees incurred in the removal and remand

1

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, 178 A.3d 737, 741 (Pa. 2018).

4

proceedings.

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

2

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.

5

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.

Id. On November 13, the Commonwealth Court issued an

expedited scheduling order, with trial set for December 11,

2017.

B.

The day after the Commonwealth Court issued its

scheduling order, Senator Scarnati removed the case to the

6

United States District Court for the Eastern District of

Pennsylvania. See 28 U.S.C. § 1441(a). Although the

underlying petition included only state law claims, he

contended there was federal question jurisdiction because, on

October 23, 2017, Governor Wolf issued a Writ of Election to

set a special election for a newly vacant seat in Congress. See

U.S. Const. art. I, § 2, cl. 4 (“When vacancies happen in the

Representation from any State, the Executive Authority thereof

shall issue Writs of Election to fill such Vacancies.”). Senator

Scarnati maintained that because the Writ was issued under the

United States Constitution, it introduced a “substantial

question of federal law” into the case—whether a state court

could “strike down” a congressional district for which a special

election was already scheduled. App. 24. In the notice of

removal, Senator Scarnati averred that Representative Turzai

and the General Assembly had consented to removal, and

contended he did not need the consent of the other defendants

because of their “nominal” status. App. 25–26.

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.

7

In accordance with the District Court’s remand order,

plaintiffs asked for, under 28 U.S.C. § 1447(c), “payment of

just costs and . . . attorney fees[] incurred as a result of the

removal.” They sought: (1) $49,616.50 in attorneys’ fees,

which covered 82 hours of work by 10 attorneys from the

Washington, D.C. office of Arnold & Porter Kaye Scholer and

the Public Interest Law Center of Philadelphia (PILCOP); and

(2) $3,120.02 in costs for travel and legal research expenses.

Those fees and costs had been incurred preparing the remand

motion, preparing for and attending the emergency hearing,

and preparing the costs motion itself. Plaintiffs also suggested

sanctions were warranted under Federal Rule of Civil

Procedure 11 or the Court’s inherent authority. Finally, they

contended “Senator Scarnati and his counsel . . . should be held

jointly and severally liable” for any award to “avoid placing

the burden for such fees and costs on Pennsylvania taxpayers.”

App. 400.

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, 2018 WL

1787211, at *6 (E.D. Pa. Apr. 13, 2018). It held removal was

improper because Senator Scarnati had no basis for believing

that removal was timely or that he did not need the consent of

the executive branch defendants. Id. at *4–5. The Court did not

“stat[e] any opinion on whether there was ‘colorable’ federal

jurisdiction,” and did “not come to any conclusion that

improper motive or bad faith [was] involved.” Id. at *6.

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

8

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

3

The District Court had jurisdiction under 28 U.S.C. §

1441 to consider whether the matter was removable. After

remanding, the Court retained jurisdiction to award costs and

fees under 28 U.S.C. § 1447(c). See Mints v. Educ. Testing

Serv., 99 F.3d 1253, 1257–58 (3d Cir. 1996). We have

jurisdiction under 28 U.S.C. § 1291 to review the award.

“We review an award of attorneys’ fees under section

1447(c) for abuse of discretion.” Roxbury Condo. Ass’n v.

Anthony S. Cupo Agency, 316 F.3d 224, 226 (3d Cir. 2003). “A

district court abuses its discretion by basing its decision on ‘a

clearly erroneous finding of fact, an erroneous legal

conclusion, or an improper application of law to fact.’” Id.

(quoting LaSalle Nat’l Bank v. First Conn. Holding Grp., 287

F.3d 279, 288 (3d Cir. 2002)).

9

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.” 28 U.S.C. § 1441(a). In addition to establishing

federal subject matter jurisdiction, a removing defendant must

comply with several statutory procedural requirements. See id.

§§ 1446, 1447. Two of those provisions are at issue here. First,

removal must occur within thirty days of the defendant’s

“receipt . . . of the initial pleading,” id. § 1446(b)(1), or within

thirty days of the defendant’s “receipt . . . of a copy of an

amended pleading, motion, order or other paper from which it

may first be ascertained that the case is one which is or has

become removable,” id. § 1446(b)(3). Second, all defendants

must join in or consent to removal. Id. § 1446(b)(2). If the

removing defendant fails to comply with these procedural

requirements, “[a] motion to remand the case . . . must be made

within 30 days after the filing of the notice of removal.” Id. §

1447(c).

10

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.” Id.

In Martin v. Franklin Capital Corp., the Supreme Court

announced the proper standard for awarding fees under §

1447(c): “Absent unusual circumstances, courts may award

attorney’s fees under § 1447(c) only where the removing party

lacked an objectively reasonable basis for seeking removal.”

546 U.S. 132, 141 (2005). The Court adopted that standard

instead of a narrower one under which fees could be awarded

only if the removing party’s position was “frivolous,

unreasonable, or without foundation.” Id. at 138. In holding

that the test should “turn on . . . reasonableness,” the Court

“recognize[d] the desire to deter removals sought for the

purpose of prolonging litigation and imposing costs on the

opposing party, while not undermining Congress’ basic

decision to afford defendants a right to remove as a general

matter, when the statutory criteria are satisfied.” Id. at 140–41.

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 28 U.S.C. §

1446(b)(1), yet contends his action was timely for another

reason. According to the Senator, the October 23, 2017 Writ of

Election was an “other paper,” id. § 1446(b)(3), that “caused

11

the state court matter to suddenly . . . pose a substantial federal

question,” resetting the thirty-day clock during which he could

remove, Appellant’s Br. 30. As the District Court described,

however, our precedent establishes that the terms “an amended

pleading, motion, order or other paper” in § 1446(b)(3) “only

address developments within a case,” not a document, such as

the writ here, which is separate and apart from the case. A.S. ex

rel. Miller v. SmithKline Beecham Corp., 769 F.3d 204, 210

(3d Cir. 2014) (hereinafter Miller) (citation and alteration

omitted); accord 14C Charles Alan Wright & Arthur R. Miller,

Federal Practice & Procedure § 3731 (4th ed. rev. 2018)

(documents not generated within the state litigation generally

are not recognized as “other papers” that can start a 30-day

removal period under § 1446(b)).

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.” 14 F.3d 196, 201–02 (3d Cir. 1993)

(citation omitted). Senator Scarnati maintains that our

recognition of an exception in Doe “has opened the door for

potential additional exceptions,” including in the “equally

unique circumstances here.” Appellant’s Br. 31.

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.’” 14 F.3d at 202. We stressed that our

decision was “extremely confined” and “narrow.” Id.

12

Subsequently, in Miller, we rejected an attempt to expand Doe

where a later issued circuit court decision involved the same

defendant but “did not include the explicit authorization to

remove other pending cases.” 769 F.3d at 210. We underscored

that the Doe ruling was “narrow and meant to apply in ‘unique

circumstances.’” Id. at 211 (quoting Doe, 14 F.3d at 202–03).

The order in Doe “was not ‘simply . . . an order emanating from

an unrelated action’” but “was ‘an unequivocal order directed

to a party to the pending litigation, explicitly authorizing’”

removal. Id. at 210 (quoting Doe, 14 F.3d at 202) (alteration in

original). Our recognition of a “narrow” exception for direct

orders from a higher court that expressly authorize a defendant

to remove does not help Senator Scarnati here. Doe, 14 F.3d at

202.

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, 769 F.3d at 210. Though we reiterate that

a “colorable removal claim in an area of unsettled law” does

not merit a § 1447(c) award, Roxbury Condo. Ass’n v. Anthony

S. Cupo Agency, 316 F.3d 224, 228 (3d Cir. 2003), we see no

abuse of discretion here.4

4

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 28 U.S.C. § 1446(b)(2)(A). The Court rejected

13

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.

his argument that the executive defendants were nominal

parties, noting he had earlier argued that Governor Wolf was

an “indispensable party” because the relief sought required the

Governor’s participation. League of Women Voters of Pa.,

2018 WL 1787211, at *4. See generally Johnson v. SmithKline

Beecham Corp., 724 F.3d 337, 359 n.27 (3d Cir. 2013) (noting

that removing defendants need not secure consent from

“nominal parties”). But whether a party can be “indispensable”

because of its ministerial role in effecting a judgment, but

nominal for removal purposes, is an unresolved question, with

courts offering indirect support to both sides. Compare, e.g.,

Steel Valley Auth. v. Union Switch & Signal Div., 809 F.2d

1006, 1010 (3d Cir. 1987) (stating “while nominal or

fraudulently joined parties may be disregarded [in considering

diversity jurisdiction], indispensable parties may not”), with

Lincoln Prop. Co. v. Roche, 546 U.S. 81, 92 (2005) (observing

that parties “joined only as designated performer of a

ministerial act” do not satisfy diversity requirements) (citing

Walden v. Skinner, 101 U.S. 577, 589 (1880)). Because we

conclude the District Court did not abuse its discretion when it

ruled that Senator Scarnati lacked an objectively reasonable

basis for thinking removal was timely, we need not resolve this

question today.

14

We find instructive the Supreme Court’s reasoning in a

similar context. In Kentucky v. Graham, the Supreme Court

considered “whether 42 U.S.C. § 1988”—the fee-shifting

provision for federal civil rights suits—“allows attorney’s fees

to be recovered from a governmental entity when a plaintiff

sues governmental employees only in their personal

capacities.” 473 U.S. 159, 161 (1985). The Court recognized

that § 1988—like § 1447(c)—“does not in so many words

define the parties who must bear” a costs and fees award. Id. at

164. Nonetheless, the Court found it “clear” that the “losing

party” bears cost and fee liability. Id. It explained that “[p]roper

application of this principle” in actions involving public

officials “requires careful adherence to the distinction between

personal- and official-capacity action suits.” Id. at 165. An

official-capacity suit is “to be treated as a suit against the entity

[of which the office is an agent]” and “is not a suit against the

official personally, for the real party in interest is the entity.”

Id. at 166 (citation omitted). Because of this distinction, “a suit

against a government official in his or her personal capacity

cannot lead to imposition of fee liability upon the

governmental entity,” id. at 167, which “is not even a party to

a personal-capacity lawsuit,” id. at 168. An officer in his

personal capacity is a different entity than that same officer in

his official capacity, and the officer is only party to a suit in the

capacity he is named. “That a plaintiff has prevailed against

one party does not entitle him to fees from another party, let

alone from a nonparty.” Id.; see also Hutto v. Finney, 437 U.S.

678, 699 n.32 (1978) (observing that to require an officer to

pay a fee award in an individual capacity is “manifestly unfair

when . . . the individual officers have no personal interest in

the conduct of the State’s litigation”).

15

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. 473 U.S. at 164; cf. Martin, 546

U.S. at 141 (“[C]ourts may award attorney’s fees under §

1447(c) only where the removing party lacked an objectively

reasonable basis for seeking removal.”). It is undisputed that

Senator Scarnati was named a defendant in his official capacity

only, as the President Pro Tempore of the State Senate.

Accordingly, this “is not a suit against [him] personally, for the

real party in interest is the entity” he represents. Graham, 473

U.S. at 166; cf. Karcher v. May, 484 U.S. 72, 78 (1987) (“We

have repeatedly recognized that the real party in interest in

an official-capacity suit is the entity represented and not the

individual officeholder.”). Because this is an “an official-

capacity action,” plaintiffs are “entitled to look for relief, both

on the merits and for fees, to the governmental entity” only.

Graham, 473 U.S. at 171. Senator Scarnati in his personal

capacity—a nonparty to this action—cannot be made to pay.

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, 912 F.2d 628, 636 (3d Cir. 1990) (“[Q]ualified

immunity . . . [is] a defense available only for governmental

officials when they are sued in their personal, and not in their

official, capacity.”). Here, Senator Scarnati was sued in his

16

official capacity only, and Graham counsels adherence to the

distinction between personal and official capacity actions.

Senator Scarnati is personally not a party to the suit, so a §

1447(c) award cannot be made against him in his personal

capacity.5

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., 2018 WL 1787211, at *6. Fee-shifting

on this basis is not warranted.

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.,

5

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.

17

501 U.S. 32, 40 n.5 (1991); Corder v. Howard Johnson & Co.,

53 F.3d 225, 232 (9th Cir. 1994). Accordingly, we will reverse

the part of the Court’s order directing Senator Scarnati to

personally pay to plaintiffs the costs and fees award, and

remand for further proceedings.

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., 455

F.3d 160, 164 (3d Cir. 2006). As to billing rate, it agreed with

Senator Scarnati that counsel from Arnold & Porter Kaye

Scholer should not be reimbursed at the higher Washington,

D.C. rates, and instead looked to “customary Philadelphia legal

fees.” League of Women Voters of Pa., 2018 WL 1787211, at

*6; accord Interfaith Cmty. Org. v. Honeywell Int’l, Inc., 426

F.3d 694, 699 (3d Cir. 2005). We discern no error in the

District Court’s application of a blended hourly rate of $400—

a median rate for the Philadelphia-based Public Interest Law

Center lawyers—which Senator Scarnati acknowledges is a

“fair reflection of the prevailing market rates.” Appellant’s Br.

38; accord In re Rite Aid Corp. Sec. Litig., 396 F.3d 294, 306

18

(3d Cir. 2005) (“[D]istrict courts should apply blended billing

rates that approximate the fee structure of all the attorneys who

worked on the matter.”).

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., 884 F.2d 713, 721 (3d Cir. 1989) (observing that

fee request reductions require “flexibility,” as “the court will

inevitably be required to engage in a fair amount of ‘judgment

calling’ based upon its experience with the case and its general

experience”).

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., 619 F.2d 276, 285 (3d Cir. 1980) (awarding research

fees and noting that “[u]se of computer-aided legal research . .

. is certainly reasonable, if not essential, in contemporary legal

practice”). It properly reviewed the supporting documentation

submitted by plaintiffs and explained why it determined the

costs sought for research were reasonable.

Accordingly, we will affirm the costs and fees awarded.

III.

In sum, we conclude the District Court did not abuse its

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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.

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