Case 3:06-cv-01586-JMM Document 459 Filed 10/06/15 Page 1 of 38

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
PEDRO LOZANO,
HUMBERTO HERNANDEZ,
ROSA LECHUGA,
JOSE LUIS LECHUGA,
JOHN DOE 1,
JOHN DOE 3,
JOHN DOE 7,
JANE DOE 5,
CASA DOMINICA OF HAZLETON,
INC.,
HAZLETON HISPANIC BUSINESS
ASSOCIATION, and
PENNSYLVANIA STATEWIDE
LATINO COALITION,
Plaintiffs

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No. 3:06cv1586
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(Judge Munley)
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v.
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CITY OF HAZLETON,
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Defendant
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MEMORANDUM
In 2008, the court found that the City of Hazleton lacked authority to
enact certain ordinances aimed at regulating the presence and
employment of undocumented immigrants. Now, after seven years of
appeals, this case once again comes before the court. The appellate
courts have fully addressed the merits, concluding that by enacting the
ordinances, Hazleton overstepped its authority and entered an area of
immigration preempted by federal law. The sole remaining issue is

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whether the plaintiffs are entitled to an award of attorneys’ fees for
prevailing over the defendant. Before the court for disposition are
plaintiffs’ original and amended petitions for attorneys’ fees and costs. The
petitions seek a total $2,787,421.00 in attorneys’ fees and $47,594.00 in
costs for a total of $2,835,015.00.
Background
Defendant City of Hazleton (hereinafter “Hazleton,” “city” or
“defendant”) enacted several ordinances to regulate the presence and
employment of undocumented immigrants within the city. The ordinances,
the Illegal Immigration Relief Act Ordinance (hereinafter “IIRA”) and the
Tenant Registration Ordinance (hereinafter “RO”), were aimed at
preventing undocumented immigrants from obtaining employment or
housing within the city. The defendant also passed the Official English
Ordinance, which made English the official language of the city.
Plaintiffs instituted the instant action to challenge the validity of the
IIRA and the RO (collectively “the ordinances”) (Doc. 1, Compl.; Doc. 18,
Am. Compl.). Plaintiffs also moved for a temporary restraining order and
preliminary injunction. We granted the temporary restraining order on
October 31, 2006, preventing Hazleton from enforcing the ordinances.

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(Doc. 35, Mem. & Order dated Oct. 31, 2006). The court combined the
hearing on the preliminary injunction with the final trial on the merits and
held a non-jury trial in March 2007.1
In July 2007, we issued our verdict finding that federal law
preempted the ordinances. (Doc. 409, Decision and Verdict). We also
concluded that the ordinances violated the plaintiffs’ Fourteenth
Amendment constitutional right to due process and impermissibly
burdened the plaintiffs’ right to contract under 42 U.S.C. § 1981. (Id.) We
permanently enjoined the city from enforcing the ordinances. (Id.)
Plaintiffs then filed a petition for attorneys’ fees and costs. (Doc.
416). The defendant appealed our decision to the Third Circuit Court of
Appeals. We suspended the petition for attorneys’ fees and costs pending
the outcome of the appeal. (Doc. 412, Order of Sept. 14, 2007).
The Third Circuit affirmed our decision, finding that federal law
preempted the local ordinances. See Lozano v. City of Hazleton, 620
F.3d 170 (3d Cir. 2010).2 The Third Circuit did not address the section
1

Plaintiffs and defendant entered into a stipulation regarding the
Official English Ordinance on March 2, 2007 and plaintiffs no longer
pursued this claim. (Doc. 139, Stip. of Mar. 2, 2007).
2

The court vacated our decision regarding one aspect of the case
that relates to the validity of a part of the employment ordinance. This
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1981 and due process issues because the doctrine of federal preemption
provided sufficient cause to invalidate the ordinances. Id.
The defendant appealed to the United States Supreme Court, which
granted certiorari. City of Hazleton v. Lozano, - U.S. -, 131 S.Ct. 2958
(2011) (Mem.). The Supreme Court vacated the Third Circuit’s judgment
and remanded to the Third Circuit for further consideration in light of
another case the high Court had recently decided, Chamber of Commerce
of USA v. Whiting, - U.S. - , 131 S.Ct. 1968 (2011). Id.
Upon remand, the Third Circuit once again concluded that federal
law preempted the ordinances. Lozano v. City of Hazleton, 724 F.3d 297
(3d Cir. 2013). The defendant once more petitioned the United States
Supreme Court for certiorari. The Supreme Court denied the petition for
certiorari on March 3, 2014. City of Hazleton v. Lozano, - U.S. -, 134 S.Ct.
1491 (2014) (Mem.).
Subsequent to the Supreme Court’s denial, the plaintiffs filed an
amended petition for attorneys’ fees and costs in this court. (Doc. 443).
The parties have briefed their respective positions and the matter is ripe
portion of the ordinance created a private cause of action for an employee
who is terminated from his employment while his employer continues to
employ an undocumented worker. The Third Circuit found that the
plaintiffs did not have standing to challenge this part of the ordinance.
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for disposition.
Jurisdiction
As this case is brought pursuant to federal statutes and the federal
constitution, we have jurisdiction pursuant to 28 U.S.C. § 1331 (“The
district courts shall have original jurisdiction of all civil actions arising
under the Constitution, laws, or treaties of the United States.”).
Legal Standard
“In the United States, parties are ordinarily required to bear their
own attorney’s fees–the prevailing party is not entitled to collect from the
loser. Under this ‘American Rule,’ we follow a general practice of not
awarding fees to a prevailing party absent explicit statutory authority.”
Buckhannon Bd. and Care Home, Inc. v. W. Va. Dept. of Health and
Human Res., 532 U.S. 598, 602 (2001) (internal quotation marks and
citations omitted). It is well established that costs, attorney’s fees and
expenses may be awarded to a prevailing party in federal litigation where
authorized by statute, court rule, or contract. See Alyeska Pipeline Serv.
Co. v. Wilderness Soc’y, 421 U.S. 240, 257 (1975); Hall v. Cole, 412 U.S.
1, 4 (1973).
Plaintiffs seek attorneys’ fees under 42 U.S.C. § 1988. Section

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1988 provides for the award of attorneys’ fees to the prevailing party in
actions involving certain statutes including section 1983 and section 1981.
Specifically, section 1988 reads as follows:
In any action or proceeding to enforce a provision
of sections 1981, 1981a, 1982, 1983, 1985, and
1986 of this title . . . the court, in its discretion, may
allow the prevailing party, other than the United
States, a reasonable attorney’s fee as part of the
costs[.]
42 U.S.C. § 1988(b).

“The purpose of § 1988 is to ensure effective access to the judicial
process for persons with civil rights grievances. Accordingly, a prevailing
plaintiff should ordinarily recover an attorney’s fee unless special
circumstances would render such an award unjust.” Hensley v. Eckerhart,
461 U.S. 424, 429 (1983) (internal quotation marks and citations omitted).
When awarding attorney’s fees and costs under section 1988 courts
within the Third Circuit use the “lodestar” method. See Maldonado v.
Houstoun, 256 F.3d 181, 184 (3d Cir. 2001). The first step in using the
lodestar method is to calculate “the product of the hours reasonably
expended and the applicable hourly rate for the legal services.” Pub.
Interest Research Grp. of N.J., Inc. v. Windall, 51 F.3d 1179, 1185 (3d Cir.
1995) (citing Hensley, 461 U.S. at 433). After this product, known as the
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“lodestar,” is determined, the court has discretion to adjust the fee for a
variety of reasons, most notably “the ‘results obtained’ by the [prevailing
party.]” Id. (citing Hensley, 461 U.S. at 434).
The “party seeking attorney fees bears the ultimate burden of
showing that its requested hourly rates and the hours it claims are
reasonable.” Interfaith Cmty. Org. v. Honeywell Int’l, Inc., 426 F.3d 694,
703 n.5 (3d Cir. 2005) (citing Rode v. Dellarciprete, 892 F.2d 1177, 1183
(3d Cir. 1990)). To satisfy this burden, the party seeking fees is initially
required to submit evidence supporting the hours worked and the rates
claimed. Id. To the extent that it seeks to challenge the fees sought, “the
opposing party must then object ‘with sufficient specificity’ to the request.”
Id. (quoting Rode, 892 F.2d at 1183)).
Discussion
As set forth above, to determine the amount of attorney’s fees, we
must calculate the lodestar. Accordingly, we must determine the
reasonable number of hours plaintiffs’ attorneys spent on the case and
then multiply that by a reasonable hourly rate. Once we determine the
lodestar, it may be reduced or increased for various reasons. Initially,
defendant attacks both the hours plaintiffs claim as reasonable, and the

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hourly rates that the attorneys claim. We address these arguments below
as we determine the lodestar.
I. Calculation of the lodestar
A. Number of hours
Plaintiffs’ petitions and exhibits set forth the number of hours for
which they seek compensation. Defendant argues that this number is
overly inflated and that the hours that the plaintiffs spent on certain appeal
work should not be included. We find no merit to either argument.
1. Redundant lawyers/unreasonably inflated hours
The defendant argues that the plaintiffs’ attorneys’ fee petition is
inflated because they seek compensation for forty-three (43) different
attorneys. These forty-three (43) attorneys worked on the case for an
“astronomical” number of hours, according to the defendant–that is,
cumulatively, 8,955 hours. Defendant compares the plaintiffs’ number of
hours and number of attorneys to its own five (5) attorneys and 4,553
hours of work. (Doc. 457, Def.’s Opp’n Br. at 10-11). Defendant
proceeds to argue that the plaintiffs’ petition lacks sufficient detail to
determine the number of redundant hours with precision. Defendant
asserts plaintiffs’ attorneys claim approximately twice as many total hours

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working on the case as the total number of hours that defense counsel
spent on the case. Defendant suggests cutting the number of hours
requested by plaintiffs by approximately half.3
Plaintiffs counter defendant’s argument with several arguments of
their own. First, plaintiffs claim that defendant does not back up its factual
assertions with any evidence, and thus, this claim should be denied. Next,
plaintiffs argue that even if the court addresses the merits of the issue, we
should find that defendant’s arguments are not cogent. The court
addresses these issues in turn.
a. Evidence to support defendant’s argument
Defendant premises its argument on several factual assertions,
namely that the defense spent nearly half the time on the case as
plaintiffs’ counsel and that its legal team defended the case with far fewer
attorneys. Defendant, however, has provided no evidence, such as
affidavits, to substantiate these factual assertions. Plaintiffs argue that
because defendant presents no evidence, we should reject defendant’s
argument. We agree.
3

Defendant makes this argument while also acknowledging that the
total number of hours that defendant worked “certainly does not serve as a
legal cap on the number of hours that Plaintiffs may claim[.]” (Doc. 457,
Def.’s Br. at 11).
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The law provides that when a party makes a factual argument in
opposition to a fee petition, that party must introduce affidavits in
support of those facts. Bell v. United Princeton Prop., Inc., 884 F.2d
713, 720 (3d Cir. 1989). “[T]o the extent the challenger seeks to raise a
factual issue . . . he or she must introduce affidavits averring the facts
upon which the challenge is based. Affidavits are required in such
instances because statements made in briefs are not evidence of the facts
asserted.” Id. “[W]ith respect to factual issues, the court must be
presented with evidence and must make findings based on the evidence.”
Id.
Here, the defendant raises several factual issues in its brief, to wit,
the number of defense attorneys who worked on the case, and the
number of hours those attorneys spent on the case. Defendant submits
no evidence to establish that these facts are true. Because defendant
submitted no evidence to establish the facts it relied upon, we cannot
entertain this argument, and it will be denied.
Defendant also argues that most of plaintiffs’ attorneys were little
more than spectators to the litigation who sat in the public seating area of
the courtroom, ran the clock and accumulated thousand of hours and

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added virtually nothing to the litigation of the case. (Doc. 457, Def.’s
Resp. at 10). Defendant cites to nothing in the record to support its claim
of these “thousands” of unreasonable hours. A review of the records does
not reveal such inappropriate billing and in fact the plaintiffs indicate that
time entries for attorneys’ attendance at trial was adjusted when they did
not play a necessary support role. (Doc. 416-8, Fiddler Decl. ¶ 9).
Additionally, plaintiffs’ counsel exercised their billing judgment as to rates,
hours and other expenses and significantly reduced the total amount they
ultimately sought. (Doc. 443-3, Walczak Suppl. Decl., ¶ 12; Doc. 443-2,
Jadwat Decl. ¶ 34; Doc. 443-5, Maer Suppl. Decl. ¶¶ 10-14).
b. Merits of the argument
Even if we did address the merits of this issue, we would find the
defendant’s position unconvincing. With regard to the merits, the plaintiffs
point out that comparing their attorneys’ work and number of hours to the
defense’s number of hours is simply not a valid quantitative measure to
determine a reasonable number of hours. We agree.
Defendant cites to no cases that use this measure as a valid method
of determining an appropriate attorney’s fee. The lack of case law is
understandable. The work of the two sides in this case was different.

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Plaintiffs’ counsel had to deal with seventeen different clients: fourteen
individuals and three organizations. The defense had one client.
Moreover, the city amended its ordinances several times evidently in
response to arguments made by plaintiffs’ counsel. This required plaintiffs
to review the amended ordinances and make new arguments where
necessary. The defendant then merely had to respond to the arguments
that plaintiffs developed. As the United States Supreme Court has held,
“The government cannot litigate tenaciously and then be heard to
complain about the time necessarily spent by the plaintiff in response.”
City of Riverside v. Rivera, 477 U.S. 561, 580 n.11 (1986) (plurality)
(internal quotation marks and citation omitted).
Additionally, the defendant makes a very general argument with
respect to the plaintiffs’ total hours. The law provides that a party
challenging the number of hours must provide a sufficient amount of detail
for the court to review it.
The Third Circuit has explained as follows:
[T]he adverse party’s submissions cannot merely
allege in general terms that the time spent was
excessive. In order to be sufficient, the briefs or
answers challenging the fee request must be clear
in two respects. First, they must generally identify
the type of work being challenged, and second
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they must specifically state the adverse party’s
grounds for contending that the hours claimed in
that area are unreasonable.
Bell, 884 F.2d at 720.
Here, defendant has not made challenges to specific items in the fee
petition. It merely raises the general argument that the plaintiffs spent too
much time on the case. Defendant argues that plaintiffs’ records fail to
provide enough detail to identify with precision the redundancy in the work
and the exact number of redundant hours so as to make specific
objections. We disagree.
A fee petition must be “specific enough to allow the district court to
determine if the hours claimed are unreasonable for the work performed.”
Rode, 892 F.2d at 1190 (internal quotation marks and citation omitted).
Here, the plaintiffs’ time records provide sufficient specificity. The
plaintiffs’ time records generally provide the attorney’s name, the activity
that the attorney engaged in and the amount of time spent on that activity.
Plaintiffs have, thus, provided sufficient information for the defendant to
make specific objections.
Defendant, however, failed to object to any specific time record. As
no specific objections were made, we need not, and indeed do not have
the discretion to, address each item in plaintiff’s time records specifically.
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Id. (noting that a court may not sua sponte reduce the amount of the
award when the defendant has not specifically taken issue with the
amount of time spent or the billing rate).4
We note that a review of the records, in light of the type of work
involved in this case, demonstrates that the plaintiffs’ requested time is
reasonable. Plaintiffs’ attorneys confronted a very vigorous, and at times
contentious, defense to their lawsuit. Plaintiffs researched and developed
new arguments in this case, which was one of the first in the country
dealing with the issue of local control over immigration issues. Plaintiffs’
court filings were well written and researched. During the non-jury trial in
the matter, which lasted approximately two weeks, plaintiffs’ counsel
demonstrated a full grasp of the law and the issues before the court. We

4

Defendant indicates that “[t]he court has a positive and affirmative
duty to conduct a thorough and searching analysis to identify excessive,
redundant, or otherwise unnecessary charges.” (Doc. 457, Def.’s Resp. at
5) (citing Interfaith Com. Org. v. Honeywell Int’l, Inc., 426 F.3d 694, 713 (3d
Cir. 2005). In Interfaith, however, the defendant objected to specific
numbers of hours to perform various tasks for which the plaintiff’s attorney
sought compensation. Interfaith, 426 F.3d at 711. In the instant case, the
defendant did not make such specific objections to the plaintiffs’ petitions.
Moreover, plaintiffs filed the bulk of their time records in August of 2007.
Defendant filed its opposition over two thousand seven hundred days later
in March of 2015. Defendant certainly had time to conduct a thorough and
searching analysis to identify and object to any excessive, redundant or
otherwise unnecessary charges.
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find no unreasonable time expenditures in the records submitted by the
plaintiffs.5
Moreover, defendant’s argument that its legal team defended the
lawsuit with fewer people and half the hours, and thus, plaintiffs did not
need so many lawyers, is not convincing. The defense did not prevail at
the trial court, the Third Circuit (twice), or the United States Supreme
Court. The fact that plaintiffs utilized more hours and more attorneys may
be justified by the fact that they ultimately prevailed at every level.
Accordingly, we will not reduce the number of hours for which plaintiffs
seek to be compensated based upon this argument.
2. Appellate litigation
Defendant further argues that the plaintiffs should not be
compensated for the time spent on much of the appeals work. Defendant
does not contest an award of attorneys’ fees for plaintiffs’ trial court level
work up through the first appeal to the Third Circuit Court of Appeals.
After the first appeal, which the Third Circuit decided on September 9,
2010, defendant contends that the case became exclusively about federal
preemption-a claim for which attorneys’ fees are not provided. Defendant

5

The number of hours is set forth in the accompanying appendices.
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argues that plaintiffs are entitled to no attorneys’ fees for work performed
after September 9, 2010, because the issues thereafter strictly involved
preemption. Plaintiffs argue that they are entitled to attorneys’ fees for
their work in the trial court and their work in the appellate courts.6 After a
careful review, we agree with the plaintiffs that attorneys’ fees should not
be limited to merely the first appeal.7
For purposes of deciding this issue, we will accept defendant’s
argument that the federal preemption claim does not fall under the
attorney’s fees provision of section 1988. See Gustafon v. City of Lake
Angelus, 76 F.3d 778, 792 (6th Cir. 1996); Planned Parenthood of Hous.
and Se. Tex. v. Sanchez, 480 F.3d 734, 738 (5th Cir. 2007). Where,
however, a case involves both federal preemption issues and civil
rights/constitutional issues and the plaintiff prevails on the federal
preemption claim, the plaintiff may recover fees for both if the claims arise

6

The work performed after September 9, 2010 was due to
defendant filing two petitions of certiorari with the United States Supreme
Court. The plaintiffs ultimately prevailed on the issue raised in those
petitions.
7

As noted, defendant evidently concedes that fees should be
awarded for the work performed by plaintiffs’ counsel prior to September 9,
2010. As set forth below, however, defendant does challenge the amount
of the fees.
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from a “common nucleus of operative facts”. Planned Parenthood, 480
F.3d at 739. The Third Circuit has explained as follows:
We have previously addressed situations where a
plaintiff brought a § 1983 claim that supports a
grant of attorney’s fees and another claim that
does not, and the court found in favor of the
plaintiff on the non-fee bearing claim but did not
address the § 1983 claim. Recognizing that courts
will often justifiably refrain from addressing a
constitutional question where it can be avoided, we
have held that such a plaintiff may obtain attorney’s
fees even though the § 1983 claim was not
decided provided that 1) the § 1983 claim of
constitutional deprivation was substantial; and 2)
the successful pendant claims arose out of a
common nucleus of operative facts.
Id. (internal quotation marks and citation omitted).
Stated differently, the law provides that where a plaintiff prevails in a
case raising both constitutional claims that support an attorney’s fee
award and claims that do not support attorney’s fees, fees can be
awarded even if the court does not address the constitutional claim. In
such situations, fees can be awarded when the unaddressed claim of
constitutional deprivations are substantial and arise with the pendant nonconstitutional claims from a “common nucleus of operative fact.” Maher v.
Gagne, 448 U.S. 122, 132 n.15 (1980) (quoting United Mine Workers v.
Gibbs, 383 U.S. 715, 725 (1966)). The Supreme Court has explained:

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“Congress intended fees to be awarded where a pendent constitutional
claim is involved, even if the statutory claim on which the plaintiff prevailed
is one for which fees cannot be awarded under [section 1988].” Id.
In the instant case, the constitutional claims and the preemption
claims all arose from a common nucleus of operative facts–namely the
defendant’s ordinances. Therefore, we must determine if the claims were
“substantial.”
Constitutional claims fail the substantiality test if they are frivolous or
“so insubstantial as to be beyond the jurisdiction of the District Court.”
Hagans v. Lavine, 415 U.S. 528, 539 (1974). Here, plaintiffs raised
substantial constitutional claims. In fact, this court ruled upon the due
process claim in plaintiffs’ favor.8 As such, we will award attorneys’ fees
for plaintiffs’ work in the trial court and their work in the appellate court
because the civil rights claims are substantial and arise from a common
nucleus of operative fact with the preemption claim.9
8

We additionally ruled in plaintiffs’ favor on the section 1981 claim,
which also supports an award of attorneys’ fees.
9

Defendant maintains that this “rule does not apply once the nature
of the litigation has changed and the fee-generating claims are no longer at
issue. Once the fee-generating claims are no longer part of the briefing
and no longer tied to the non-fee-generating claims, the work on the nonfee-generating claim is not subject to the award of attorney’s fees.” (Doc.
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Based on the above analysis, the court will grant the plaintiffs’
request for attorneys’ fees for plaintiffs’ work in the district court and all the
appeals in the Third Circuit Court of Appeals and the United States
Supreme Court.
B. Hourly rates
As noted above, to arrive at the lodestar figure we must multiply the
reasonable number of hours spent on the litigation by a reasonable hourly
rate. Hensley, 461 U.S. at 433. Defendant next challenges plaintiffs’
counsels’ hourly rates, arguing that the rates are greatly inflated.
To calculate a reasonable rate, we look to the prevailing market rate
in the relevant community. Loughner v. Univ. of Pittsburgh, 260 F.3d 173,
180 (3d Cir. 2001). “The prevailing party bears the burden of establishing
by way of satisfactory evidence, in addition to the attorney’s own affidavits
that the requested hourly rates meet this standard.” Washington v. Phila.
Cnty. Court of Common Pleas, 89 F.3d 1031, 1035 (3d Cir. 1996) (internal
citation, quotation marks and brackets omitted). “Where . . . the plaintiff
has met his prima facie burden under the ‘community market rate’
lodestar test, and the opposing party has not produced contradictory
457, Def.’s Resp. at 7). Defendant cites to no authority for this proposition
and our research has uncovered none.
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evidence, the district court may not exercise its discretion to adjust the
requested rate downward.” Id. at 1036.
First we must determine whether plaintiffs met their burden of
establishing the reasonable rates and then determine if the defendant has
produced any contradictory evidence. If the defendant has not, then we
have no discretion and must not adjust the requested rate downward.
Two different types of attorneys represented the plaintiffs: attorneys
in private practice and attorneys in the public interest field. The legal
analysis is slightly different for each type, and we will discuss them in turn
beginning with the private practice lawyers.
1. Private practice attorneys
For lawyers in private practice the “starting point in determining a
reasonable hourly rate is the attorneys’ usual billing rate . . . .” Pub.
Interest Research Grp. of N.J., 51 F.3d at 1185. Cozen O’Connor served
as lead private counsel for the plaintiffs. (Doc. 416-8, Fiddler Decl. ¶ 5).
Thomas Fiddler of Cozen O’Connor submitted a declaration in support of
the hourly rate requested by the Cozen O’Connor staff. (Id. ¶ 7). Their
attorneys who participated in the case, with their respective hourly rates,
include: Thomas G. Wilkinson, Jr.- $410.00; Thomas B. Fiddler - $335;

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Linda Kaiser Conley - $335.00; Doreen Y. Trujillo - $275.00; Elena Park $235.00; and Ilan Rosenberg - $230.00.10
Other attorneys who are in private practice, but not associated with
Cozen O’Connor, also participated in the case. These lawyers include:
George Barron, Barry Dyller, and David Vaida. According to the various
declarations, the hourly billing rates for these attorneys are as follows:
George Barron - $195.00 (Doc. 416-13, Barron Decl. ¶¶ 3-5); Barry Dyller
-$350.00 (Doc. 416-12, Dyller Decl. ¶ 6) (supported by three affidavits);
and David Vaida - $250.00 (Doc. 416-14, Vaida Decl. ¶¶ 3-6). 11
2. Public service attorneys
Public service attorneys do not have a usual billing rate that they
charge their clients because they do not have paying clients. To
determine the “community market rate” and thus the reasonableness of
the requested hourly fee we “assess the experience and skill of the

10

Fiddler’s declaration also sets forth the reasonableness of the
rates submitted by various paralegals as set forth in the Appendix. (Doc.
416-8, Fiddler Decl. ¶¶ 7-9). “Defendants do not contend that the
paralegal work done for the Plaintiffs is redundant or excessive.” (Doc.
457, Def.’s Response at 10, n.4).
11

We provide here a representative sample of the hourly rates. The
full list of hourly rates, along with citations to the record evidence
supporting them, is set forth in the attached appendix.
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attorneys and compare their rates to those of comparable lawyers in the
private business sphere.” Student Pub. Interest Research Grp. of N.J.,
Inc. v. AT&T Bell Laboratories, 842 F.2d 1436, 1447 (3d Cir. 1988).
The attorneys to whom we apply this rule are: Witold Walczak,
Omar Jadwat, Jennifer Chang, Shamaine Daniels and all Puerto Rican
Legal Defense and Education Fund (hereinafter “PRLDEF”) lawyers.
Witold Walczak, the legal director of the American Civil Liberties
Union of Pennsylvania, (hereinafter “ACLUPA”) submitted a declaration
indicating that he requests an hourly rate of $400 which he believes is fair
and reflects the prevailing community rate for civil rights lawyers of
comparable skill and experience. (Doc. 416-4, Walczak Decl. ¶¶ 4, 6-7).
Subsequently, plaintiffs reduced this request to $370 to fall within the rate
schedule published by the Community Legal Services, Inc. (hereinafter
“CLS”). (Doc. 443, Pls.’ Am. Pet. for Attorneys’ Fees and Costs ¶¶ 20, 38).
Omar Jadwat, an attorney on the national legal staff of the ACLU
Foundation Immigrants’ Rights Project, (hereinafter “ACLUF”), filed a
declaration wherein he requests an hourly rate of $300, which he believes
is fair and reasonable and within the scope of rates awarded to federal
court litigators of comparable skill and experience. (Doc. 416-5, Jadwat

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Decl. ¶¶ 16-17). Plaintiffs subsequently reduced this request to $255 to
fall within the rate schedule published by the CLS. (Doc. 443, Pls.’ Am.
Pet. for Attorneys’ Fees and Costs ¶¶ 20, 38).
Jennifer C. Chang, an attorney on the national legal staff of the
ACLU Foundation Immigrants’ Rights Project, filed a declaration indicating
that an hourly rate of $260 for the work she performed on the case is fair
and reasonable. (Doc. 416-6, Chang Decl. ¶¶ 10-11). Subsequently,
plaintiffs reduced this request to $225 to fall within the rate schedule
published by the CLS. (Doc. 443, Pls.’ Am. Pet. for Attorneys’ Fees and
Costs ¶¶ 20, 38).
Shamaine A. Daniels, an employee of the Community Justice
Project, (hereinafter “CJP”), has submitted a declaration indicating that
$150.00 per hour is fair and reasonable. (Doc. 416-21, Daniels Decl. ¶
11).
Foster Maer, the Legal Director of the Puerto Rican Legal Defense
and Education Fund (hereinafter “PRLDEF”) also filed a declaration.
(Doc. 416-7, Maer Decl.). He presents an hourly rate of $425.00 as fair
and reasonable for himself. (Id. ¶ 13). He also presents fair and
reasonable hourly rates for other attorneys from the PRLDEF as follows:

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Jackson Chin - $350.00 (Id. ¶ 17) (See also Doc. 416-18, Chin Decl.
¶¶ 11, 15); Lee Llambelis - $325.00 (Id. ¶ 18) (See also Doc. 416-19,
Llambelis Decl. ¶¶ 4, 14); Ghita Schwarz - $300.00 (Id. ¶ 19) (See also
Doc. 416-17, Schwarz Decl. ¶¶ 2, 6), which plaintiffs reduced to $255
(Doc. 443, Pls.’ Am. Pet. for Attorneys’ Fees and Costs ¶¶ 20, 38); Denise
Alvarez - $275.00 (Doc. 416-7, Maer Decl. ¶ 20) (See also Doc. 416-16,
Alvarez Decl. ¶¶ 4-5), which plaintiffs reduced to $225 (Doc. 443, Pls.’
Am. Pet. for Attorneys’ Fees and Costs ¶¶ 20, 38); Richard Bellman $450.00 (Doc. 416-7, Maer Decl. ¶¶ 14, 23) (See also Doc. 416-15,
Bellman Decl. ¶¶ 3, 10); Christina Iturralde (legal fellow/law graduate) $120.00 (Id. ¶ 21); (See also Doc. 416-20, Iturralde Decl. ¶ 5); and
Marisabel Kanioras (paralegal) - $130.00 (Id. ¶ 22).
As noted, the attorneys present their own declarations where they
declare under penalty of perjury that these hourly rates are appropriate.
Under the law, however, they must submit more than their own
declaration. To that end, and in further support of these hourly rates, the
plaintiffs submitted the declaration of Thomas B. Schmidt, of counsel in
the Harrisburg office of Pepper Hamilton LLP and the attorney-in-charge
of that office. (Doc. 443-6, Schmidt Decl.). Attorney Schmidt has

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practiced law for nearly forty (40) years and has “been involved in
numerous pro bono cases as lead counsel, as co-counsel, or as local
counsel supporting attorneys associated with organizations including, for
example, the Public Interest Law Center of Philadelphia, the ACLU, and
the Lawyers Committee on Civil Rights. Most of the pro bono cases in
which [he has] been involved are, like the present case, considered
‘impact litigation’ because they apply legal principles in circumstances of
substantial public controversy or developing public policy.” (Id. ¶ 3).
Attorney Schmidt indicates that the rates requested by plaintiffs’
attorneys are reasonable and consistent with the rates charged in the
Middle District by similarly experienced and skilled attorneys. (Id. ¶¶ 9-10).
Plaintiffs have thus met their initial burden. They submitted their own
declarations regarding the hourly rates they requested. Additionally, they
submitted the declaration of an attorney experienced in such litigation to
support the hourly rate. The burden thus shifts to the defendant to
produce contradictory evidence.
The defendant, however, presents no evidence. Defendant’s
counsel merely sets forth in its brief an amount that it asserts is its
counsel’s hourly rate and compares it to the amount that the plaintiffs

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seek. As noted above, assertions in a brief are not evidence. Even if they
were, we would need more evidence than the attorney’s own declaration
as to his hourly rate. Where the defendant does not produce contradictory
evidence, we lack discretion to adjust the requested rates downward.
Washington, 89 F.3d at 1036. Thus, we must accept the rates proposed
by the plaintiff.
Defendant makes one other argument with regard to the requested
fees. The city cites to an opinion from this district where the court lowered
the attorney fee rate sought by some of the very attorneys who seek fees
in this case. See Buck v. Stankovic, 3:07cv717, 2008 WL 4072656 (M.D.
Pa. Aug. 27, 2008). In Buck, however, the defendant submitted
contradictory rebuttal evidence which challenged the rate sought by
plaintiff’s counsel. Id. at *9. Here, defendant presents no rebuttal
evidence. Moreover, the law provides that it is improper to simply rely
upon the hourly rates set by a court for the attorney in previous cases in
which they’ve appeared. Smith v. Phila. Hous. Auth., 107 F.3d 223, 226
(3d Cir. 1997).
In short, defendant has not submitted any rebuttal evidence in this
case, leaving us without discretion to lower the rate for which plaintiffs

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have established a prima facie case. In fact, plaintiffs submitted over five
hundred (500) pages of exhibits in support of their position. The
defendant submitted zero (0). Ergo, the hourly rates set forth above will
be accepted.
C. Lodestar Amount
Now that we have determined the hours reasonably expended and
the applicable hourly rate for the legal services, we can multiply out the
lodestar amount. The total amounts are: $2,244,040.50 on the original
petition and $527,530.40 on the amended petition for a total attorneys’ fee
lodestar amount of $2,771,570.90.12
To this amount, we add the plaintiffs’ costs. The defendant “does
not contest the costs asserted by the Plaintiffs that were incurred prior to
September 9, 2010.” (Doc. 457, Def.’s Resp. in Opp’n to Pls.’ Am. Pet. for
Attys’ Fees and Costs at 23). Due to the defendant’s failure to contest
these costs, we will grant all the costs sought in plaintiffs’ original petition:
a) Cozen O’Connor costs - $22,512.12
b) ACLUPA costs - $8,522.48
c) ACLUF costs - $5,177.75
12

For our calculation of these amounts please see the attached
Appendix 1.
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d) PRLDEF costs -$6,400.77
e) CJP costs - $2,879.58
Total costs from original petition: $45,492.70
(Doc. 416, Pls.’ Pet. for Attys’ Fees and Costs at 23).
Defendant appears to claim that any costs incurred during the
appeals of the preemption issues, as set forth in plaintiffs’ amended
petition, should not be awarded because plaintiffs are not entitled to fees
for work done beyond the first appeal. As discussed above, in section
I.A.2, we find no merit to this argument. Thus, we will award the costs set
forth in plaintiffs’ amended petition for attorneys’ fees and costs also. The
amended petition seeks $2,102.00 in costs solely for the ACLU
Immigrants’ Rights Project. (Doc. 443, Am. Pet. ¶ 39). The total costs,
including the original petition and the amended petition, are: $47,594.70.
II. Potential lodestar adjustments
After calculating a lodestar figure, the court can adjust it upward or
downward based upon various factors. Hensley, 461 U.S. at 434. Such
factors include, the results achieved and adjustments “for time spent
litigating wholly or partially unsuccessful claims that are related to the
litigation of successful claims.” Rode, 892 F.2d at 1183. Defendant seeks

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a lodestar reduction, arguing that plaintiff only partially succeeded in
challenging the ordinances and plaintiffs did not prevail on several of their
claims. As set forth below, we agree with the defendant in part.
A. Partial success
First, defendant argues that plaintiffs achieved only limited success
and the lodestar should thus be reduced. Specifically, defendant argues
that the ordinances that the plaintiffs challenged had essentially four
facets: 1) an employment provision enforced by the city; 2) an
employment provision enforced by a private cause of action; 3) an
apartment rental provision; and 4) an English as the official language
ordinance. Plaintiffs challenged all four aspects of Hazleton’s ordinances.
They only succeeded in obtaining an injunction with regard to two of them.
Accordingly, defendant argues that plaintiffs only obtained limited
success, and the fee award should be adjusted downward.
Plaintiffs, on the other hand, argue that they achieved excellent
results–a permanent injunction against the enforcement of the IIRA and
the RO except for one portion of the IIRA, the portion that provided for a
private cause of action for an employee. After a careful review, we agree
with the defendant with regard to the private cause of action, but we

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disagree with them with regard to the English as the official language
ordinance.
1. Private cause of action
First, defendant argues that plaintiffs only had partial success
because the private cause of action portion of the ordinance was not
invalidated. The principal portions of the plaintiffs’ case were the
employment and residential components of the ordinances. The “private
cause of action” section of the employment law was never the main thrust
of the plaintiffs’ case. It was, nonetheless, a portion of the case that the
parties spent time on in briefing, arguing and at trial.
This private cause of action was described by the Third Circuit as:
Section 4E of the [IIRA] makes it “an unfair
business practice” for a business entity to
discharge “an employee who is not an unlawful
worker,” if, on the date of the discharge, “the
business entity was not participating in [E-Verify]
and the business entity was employing an unlawful
worker. [IIRA] § 4E(1). An employee discharged
under these conditions may sue the business entity
under the [IIRA] for treble damages, as well as
reasonable attorney’s fees and costs.”
Lozano v. City of Hazleton, 620 F.3d 170, 178 (3d Cir. 2010).
The Third Circuit concluded that the plaintiffs lacked standing to
challenge this portion of the ordinance. Id. at 187. Thus, plaintiffs did not
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prevail. We conclude that the requested fee should be reduced
accordingly. This portion of the case, however, is relatively minor, and we
will reduce the lodestar by ten percent (10%). See Fox v. Vice, 563 U.S.
826, 131 S.Ct. 2205, 2216 (2011) (“The essential goal in shifting fees (to
either party) is to do rough justice, not to achieve auditing perfection.”)
2. English Only Ordinance
Defendant also claims that plaintiffs did not achieve full success
because the “English Only” ordinance is still in effect. This argument is
not convincing. In their initial complaint, the plaintiffs challenged the
“English Only” provisions of the defendant’s ordinance. Subsequently, the
City repealed that portion of the ordinance and enacted a separate
“Official English Ordinance.” Prior to the trial, the parties entered into a
stipulation with regard to the enforcement of the “Official English
Ordinance” and thereafter, the plaintiffs did not challenge the “Official
English Ordinance”. (Doc. 139, Stip. of Mar. 2, 2007). We cannot find
that this stipulation means that the plaintiffs did not prevail on this issue.
Rather, it appears that plaintiffs prevailed through a stipulation rather than
through trial.
Therefore, we will make no reduction to the lodestar for the

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stipulation regarding the enforcement of the “Official English Ordinance.”
We will, however, reduce the lodestar by ten percent (10%) based upon
the argument that plaintiffs only partially prevailed due to the private cause
of action section of the ordinances. This ten percent (10%) reduction will
apply to both the original petition and the amended petition.
B. Unsuccessful claims
Similarly, defendant asserts a lodestar reduction is warranted
because plaintiffs only prevailed on several of the claims that they raised
in their complaint. Plaintiffs’ amended complaint raised nine (9) claims.
We ruled in plaintiffs’ favor on the following: Count I, federal preemption;
Count II, procedural due process; Count V, section 1981; Count VI, Home
Rule Charter (in part); and Count IX, police powers. (Doc. 409, Memo.
dated July 26, 2007 at 186-88). Plaintiffs did not prevail on the following
claims: Counts III, Equal Protection; Count IV, the Fair Housing Act;
Count VI, Home Rule Charter (in part); Count VII, the Landlord Tenant
Act; and Count VIII, violation of privacy rights. (Id.)
Defendant avers that plaintiffs raised nine (9) causes of action but
only fully succeeded on four (4). Thus, defendant argues that any time
litigating the remaining unsuccessful claims should not be calculated as

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part of the lodestar. We agree with the defendant’s position, and will use
our discretion to adjust the award of fees accordingly.
The law provides that “where a plaintiff prevails on one or more
claims but not on others, fees shall not be awarded for time that would not
have been spent had the unsuccessful claims not been pursued.” Lanni v.
N.J., 259 F.3d 146, 151 (3d Cir. 2001) (citing Hensley, 462 U.S. at 43637). Thus, a plaintiff may bring a case with different claims based on
different facts and legal theories. If he prevails on only some of the
claims, he cannot receive attorney’s fees for the unsuccessful claims.
Hensley, 461 U.S. at 434-35.
Specifically, the Supreme Court has explained:
In some cases a plaintiff may present in one
lawsuit distinctly different claims for relief that are
based on different facts and legal theories. In such
a suit, even where the claims are brought against
the same defendants-often an institution and its
officers[;] . . .counsel’s work on one claim will be
unrelated to his work on another claim.
Accordingly, work on an unsuccessful claim cannot
be deemed to have been expended in the pursuit
of the ultimate result achieved. The congressional
intent to limit awards to prevailing parties requires
that these unrelated claims be treated as if they
had been raised in separate lawsuits, and
therefore no fee may be awarded for services on
the unsuccessful claim.

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Id. (internal quotation marks and citation omitted).
The separate claims, however, may “involve a common core of facts
or will be based on related legal theories.” Id. at 435. In such cases,
“[m]uch of counsel’s time will be devoted generally to the litigation as a
whole, making it difficult to divide the hours expended on a claim-by-claim
basis.” Id.
In the instant case, defendant is correct in noting that plaintiffs did
not prevail on every claim. Defendant further asserts that the claims that
the plaintiffs did not prevail on were distinct in all respects from the claims
on which the Plaintiffs succeeded. (Doc. 457, Def.’s Opp’n Br. at 20-21).
A review of plaintiffs’ unsuccessful claims reveals that they are not
completely distinct from the claims on which they did prevail. All the
claims arose from the ordinances. The unsuccessful claims, however, are
different causes of action and generally required different proof and legal
analysis. Thus, we will reduce the lodestar based on plaintiffs’ failure to
prevail on all claims.
We cannot with mathematical precision determine the amount of
plaintiffs’ attorneys’ time were spent on the unsuccessful claims. The
United States Supreme Court has explained, “Fee-shifting to recompense

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. . . a plaintiff . . . is not all-or-nothing.” Fox v. Vice, 563 U.S. 826, 131
S.Ct. 2205, 2216 (2011). “But trial courts need not, and indeed should
not, become green-eyeshade accountants. The essential goal in shifting
fees (to either party) is to do rough justice, not to achieve auditing
perfection.” Id. Accordingly, we will reduce the lodestar by an amount
that seems fair based upon our familiarity with and understanding of the
litigation. See id. We will adjust the lodestar of the original petition
downward by forty-five percent (45%) to compensate for the unsuccessful
claims. As these matters were also addressed by the parties in the initial
appeal to the Third Circuit, we will reduce the lodestar of the amended
petition by twenty percent (20%).13
C. Adjusted Lodestar
As set forth above, we will decrease original petition lodestar by a
total of fifty-five percent (55%)- that is a ten percent (10%) reduction for
partial success and forty-five percent (45%) reduction for unsuccessful
claims. We will also decrease the amended petition lodestar by thirty
percent (30%) - that is a ten percent (10%) reduction for partial success
13

We also bear in mind in making this adjustment that the private
attorneys who appeared in the case did so pro bono without the same
expectation of monetary compensation as they would have had with a
paying client.
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and a twenty percent (20%) reduction for unsuccessful claims. After
these reductions are made, the attorneys’ fees we will grant on the original
petition is $1,009,818.23, and the attorneys’ fees we will grant on the
amended petition is $369,271.28. Accordingly, the total attorneys’ fee
award will be $1,379,089.51. See Appendix 2.
III. Extension of the award for fees and costs over time
Finally, defendant argues that Hazleton is in severe financial
distress and on the verge of bankruptcy. A large lump sum of attorneys’
fees would likely force the city into bankruptcy and receivership.
Defendant asks the court to make the award of fees payable over a
number of years, with no yearly payment greater than $100,000.
Defendant cites to nothing as precedent to allow us to spread the award of
attorneys’ fees over time, and we find that defendant’s request is
unreasonable.
We have calculated the attorneys’ fee award to be $1,379,089.51.
Under defendant’s proposal, it would take at least fourteen (14) years to
satisfy the fee award. Additionally, we would be faced with adding interest
to the award, which would inevitably extend the payments over even more
years.

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The court is sympathetic to the defendant’s financial condition.
Congress, however, did not include language in section 1988 to suggest
that courts consider a municipality’s financial condition and budgetary
concerns when fashioning an attorney’s fee award. In fact, the financial
inability to pay an attorney fee award is not a reason for reducing such an
award. Inmates of Allegheny Cty. Jail v. Pierce, 716 F.2d 177, 180 (3d
Cir. 1983); see also Coppedge v. Franklin Cnty. Bd. of Ed., 345 F. Supp.
2d 567, 571 (E.D.N.C. 2004) (“[M]any defendants in civil rights cases are
public entities, facing the same budgetary constraints as the school
system in this case–a scenario Congress contemplated when passing §
1988.”).
Municipalities, regardless of their fiscal health, have no discretion to
enact improper laws. When such laws are passed and successfully
challenged, the municipality then becomes liable for the plaintiffs’
attorneys’ fees and costs.
Plaintiffs have, however, suggested the court not make payment due
until January 15, 2016, thus providing the parties an opportunity to reach
an agreement on a payment schedule for the fees. The court concludes
that this is a reasonable offer because it appears that a payment schedule

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is best left to the parties to work out themselves. Thus, we will grant
plaintiffs’ request to make payment due on January 15, 2016, so that the
parties will have several months to agree on a payment schedule.
Conclusion
In conclusion, we are tasked with calculating the reasonable
attorneys’ fees for plaintiffs’ attorneys. To do so, we have calculated the
“lodestar” by determining a reasonable hourly rate for the attorneys and
multiplying it by the number of hours that have been expended. Plaintiffs
presented evidence substantiating the number of hours worked and
reasonable hourly rates. Defendant did not present any contrary
evidence, and we will adopt the numbers provided by the plaintiffs.
Once the lodestar is found, the defendant has the opportunity to
convince us to lower it. We have adjusted the lodestar downward by more
than one million dollars based upon partial success and unsuccessful
claims. For the above-stated reasons, we shall award plaintiffs
$1,379,089.51 in attorneys’ fees and $47,594.00 in costs. An
appropriate order follows.

Date: Oct. 6, 2015

s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court

38